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Hiniiiiinii 

4  9015  00289  1142 

Non- 
Circulating 


ibm<f 


CASES  ARGUED  AND  DECIDED 


SUPEEME    COUET 


or  TBI 


TJKETED  STATES 


239,  240,  3  tl  U.  S. 


BOOK  60, 

LAWYERS'  EDITION. 

Cited  "Law.  ifiu  " 

COMFLBTB  WTTR  HBAD  LINES,  HEAD   NOTES,   STATEMENTS  OP  CASES,   POINTS   AH9 
▲UTHOEITIBB  OP  COUNSEL,  FOOT  NOTES  AND  PARALLEL  RSFEBSNCEab 

BT 

THE  PUBTJSHKBS'  EDITORIAL  STAFF 


TH»  LAWTEBS  CO-OPERATIVE  PUBLISHING  COMI'ANT. 

ROCHESTER,  NEW  YORK. 
1926. 


CoTYBiGiiT  f)  1916  nr 
THK  LAWYKUS  CO-OPLKATIVI::  PUL'LISHING  CO. 


•OLed 


JUSTICES 


or  THI 


SUPfiEME  COUET  OF  THE  UNITED  STATES 


DUBlIfO  TMX  TIME  OF  THS8B  BEPOBT0. 


OHm*  JUSTIOEi 


HON.  EDWARD  DOUGLASS  WHITE. 


ABSOOIATX  JUBTIGtt, 


Hon.  JosEi'H  McKsirifA, 
Hun.  Ouver  Wendell  Holmes, 
Hon.  William  R.  Dat, 
Hon.  Chablbs  Evans  Hughes/ 


Hon.  Willis  Van  Devanteb, 
Hon.  Mahlon  Pitney, 
Hon.  James  Clark  MoRETNOLMy 
Hon.  Louis  Dembitz  BiANDEUy' 


attorney  general, 
Hon.  Thomas  Watt  Gbegort. 

SOUIOITOR  general, 

Hon.  John  W.  Davis. 

clerk, 
James  D.  Maher,  Esq. 

reporter, 
Hon.  Charles  Henry  Butler. 

MARSHAL, 

Frank  K.  Green,  Esq. 


s  Reaigiu6,  Jane  10,  191S. 

*  Appointed  to  sacceed  Justice  Joseph  Backer  LaniAr,  who  died  JannAiy  f,  1016.    CoamiMicii 
ordered  recorded,  Jnne  5,  1016. 


ILLOnOENT.  XTO,  OV  THB 

JUSTICES  OF  THE  SUPBEMB  CODBT  OF  THE  UNITED  STATES 

l>om  Oetober  19,  1914  to  Jmm  18,  19ie. 


TOQwnam  with  the  datm  of  thub  com  missions  amd  com 

or  sasTicB,  EUpacnTiLT. 


For  Order  of  Conrt  If  aklng  Allotment,  Me  69  L.  ed..  Appendix  IT.  p.  1629. 


NaUBS   of   JUSnOBB,   AITD 

Whence  Affoihted. 


Absooiate  Justice 
OUVBR  WENDELL  HOLBIES, 
Massachuietts. 


Absociatb  Justice 
CHARLES  E.  HUGHES, 
New  York. 


Associate  Justice 
MAHLON  PITNEY, 
New  Jersey. 


Chief  Justice 

EDWARD  D.  WHITE, 

Louisiana. 


Associate  Justice 

JOSEPH  R.  LAMAR, 

Georgia. 


Associate  Justice 

WILLIAM  R.  DAY, 

Ohio. 


Associate  Justice 

JAMES  C.  McREYNOLDS, 

Tennessee. 


Associate   Justice 

WILLIS  VAN  DEVANTER, 

Wyoming. 


Associate   Justice 

JOSEPH  McKENNA, 

California. 


Bt  Whom 
Appointed. 


President 
Roosevelt. 


President 
Tait. 


President 
Taft. 


President 
Tavt. 


President 
Taft. 


Presidsnt 
Roosevelt. 


President 
Wilson. 


President 
Taft. 


Preddent 

McKlNLET. 


ClBOUITS. 

1914,  1916. 


First. 

Me.,  N.  H., 

Mass*,  R.  L, 

PoBTO  Rioe.t 


Second. 

Vebhont,  Conn., 

New  Yobk. 


Thibd. 

New  Jersey, 

Pa.,  Del. 


Fourth. 

Md.,  Va.,  N.  0, 

W.  Va.,  S.  a 


Fifth. 
Ga.,  Ala.,  Fla., 
Miss.,  La.,  Tex. 


Sixth. 

Kt.,  Tenn.,  Ohio, 

Mich. 


Commis- 
sioned. 


1902. 
(Dee.    4.) 


1910. 
(May  2.) 


1912. 

(Mar.  IS.) 


Sworn 


1902. 
(Dee.    8.) 


1910. 
(Dee.  12.) 


1910. 
(Oct  10.) 


1912. 
(Mar.  18.) 


1910. 
(Dee.  19.) 


1910. 
(Dee.  17.) 


1911. 
(Jan.  8.) 


Ind.,  III.,  Wis. 


Eighth. 

BfnrN.,  Iowa,  Mo., 

Kan.,  Ark.,  Neb., 

Colo.,  N.  D., 

8.  D.,  Utah, 

Wto.,  Oklahoma, 

New  Mex. 

Ninth. 

Gal.,  Or.,  Nev., 

Mont.,   Wash., 

Idaho,  Alaska,* 

ABiSQirA,  Hawaii.*  | 


1908. 
(Feb.  28.) 


1914. 
(Aug.  29.) 


191C. 
(Deo.  16.) 


1908. 
(Mar.  2.) 


1914. 
(Oct  12.) 


1911. 
(Jan.  8.) 


1898. 
(Jan.  21.) 


1898. 
(Jan.  20.) 


*  Territories  assigned  to  drcoits  by  order  of  the  Supreme  Court 
t  Porto  Rico  added  to  first  dreuit  Iqr  act  of  Coogress  of  Jaanary  28^  1916  (88  Stet 
siiL.  803,  chap.  22;. 

4 


ALLOTMENT,  BTG.,  OV  THB 

JUSTICES  OF  THE  8UPBEME  COUBT  OF  THE  UNITED  STATES 

Jnaa  18,  19ie. 

TOOBTHIB  WITH  THB  DATIS  OF  THUB  COMMISSIONS  AND  COMMBNCSMHNT 

OF  SBBTICa,  EBSFaCTITILT. 

For  Order  of  Conrt  Msklog  Allotment,  see  pott.  Appendix  VIII.  p.  1268. 


Nahes  or  Justices,  and 
Whence  Apfoimeo. 


Associate  Justice 
OLIVER  WENDELL  HOLMES, 
Massachusetts. 


AssociATB  Justice 
LOUIS  D.  BRANDEIS, 
Massachusetts. 


AssooiATx  Justice 

MAHLON  PITNEY, 

New  Jersey. 


Chief  Justice 

EDWAHD  D.  WHITB, 

LottisiaiUL 


Associate  Justice 

WILLIAM  R.  DAY, 

Ohio. 


Associate  Justice 

JAMES  C.  McREYKOLDS, 

Tennessee. 


Associate   Justice 

WILLIS  VAN  DEVANTER, 
Wyoming, 


Associate   Justice 

JOSEPH  McKENNA, 

California. 


Bt  Whom 
Appointed. 


President 
Roosevelt. 


ClKCUITS. 

1914,  1915. 


President 

WiLSOlf. 


President 
Taft. 


President 
Taft. 


President 
Roosevelt. 


President 
Wilson. 


President 
Taft. 


Fibst. 

MEi,  N.  H., 

Mass.,  R.  I., 
Pobto  Rico.f 


SsroifD. 

Vebmont,  Coif  If., 
New  Yobk. 


Thibd. 

New  Jbbsbt, 

Pa.,  Del. 


Commis- 
sioned. 


1902. 
(Dee.    4.) 


^        Fourth.        "> 

Md..  Va.,  N.  C, 

W.  Va.,  S.  C. 

Fifth. 
Ga.,  Ala.,  Fla., 
Miss.,  La.,  Tkx. 


President 

McKllfLET. 


Sixth. 

Kt.,  TEN:f.,  Ohio, 

Mich. 


SEVEIfTH. 

Ikd.,  III.,  Wis. 


Eighth. 

Minn.,  Iowa,  Mo., 

Kan.,  Ask.,  Neb., 

Colo.,  N.  D., 

8.   D.,    Utah, 

Wto.,  Oklahoma, 

New   Mex. 

Ninth. 

Cal.,  Ob.,  Nev., 

Mont.,   Wash., 

Idaho,  Alaska,* 

Abizona,  HAWAn.* 


1916. 
(Junel.) 


1912. 
(Mar.  13.) 


SWOEN 
IN. 


1902. 
(Dee.    8.) 


1910. 
(Dec.  12.) 


1903. 
(Feb.  23.) 


1914. 
(Aug.  29.) 


1910. 
(Dec.  16.) 


189S. 
(Jan.   21.) 


1916. 
(June  6.) 


1912. 
(Mar.  18.) 


1910. 
(Dec  10.) 


1903. 
(Mar.  2.) 


1014. 
(Oct  12.) 


191L 
(Jan.  3.) 


1898. 
(Jan.  26.) 


*  Territories  assigned  to  circuits  Yty  order  of  the  Supreme  Court, 
t  Porto  Rico  added  to  first  drcuit  by  act  of  Congress  of  January  28,  1916  (38  Stal 
at  L.  803,  chap.  22). 


GENERAL  TABLE  OF  CASES  REPORTED 


I]Sr  THIS  BOOK. 


VOLUMES  239,  240,  241. 


Abbott  T.  Brown   (241  U.  S.  606,  36 

Sup.  Ct.  Rep.  689) 1199 

Abercrombie    ft    F.    Co.    v.    Baldwin 
(Mem.)   (239  U.  S.  649,  36 

Sup.  Ct.  Rep.  284)   485 

Ackerlind  v.  United  States  (240  U.  S. 

631,  36  Sup.  Ct  Rep.  438)     783 
\dani8on  y.  Gililland  (Mem.)   (241  U. 

S.   663,   36   Sup.   Ct.   Rep. 

450)     1227 

Akron,  Cuyahoga  River  Power  Co.  v.    743 
Alabama   Interstate   Power   Co.,   Mi. 

Vernon-Woodbury      Cotton 

Duck  Co.  V 607 

Albert,  Interstate  Amusement  Co.  t.    439 
Alexander,  Minneapolis,   St.   P.  ft   S. 

Ste.  M.  R.  Co.  V.  (Mem.) . .     479 
Alice  State  Bank  v.  Houston  Pasture 

Co.  (Mem.)   (241  U.  S.  674, 

36  Sup.  Ct.  Rep.  724)   ....  1231 
Allen  T.  Compton  Co.    (Mem.)    (239 

U.  S.  662,  36  Sup.  Ct.  Rep. 

169)     486 

National  Bank  of  Commerce  y. 

(Mem.)     482 

Strosnider  V.  (Mem.)    1216 

Alkn  ft  W.  Co.  V.  Hanover  Star  Mill. 

Co.  (240  U.  S.  403,  36  Sup. 

Ct  Rep.  367)    713 

Allen,  Idaho  use  of.  Title  Guaranty  ft 

Surety  Co.  v.    (240  U.  S. 

136,  36  Sup.  Ct.  Rep.  345)     666 
American  Rotary  Valve  Co.  v.  Moor- 

hend    (Mem.)     (239   U.   S. 

64 J,  36  Sup.  Ct.  Rep.  161)     482 
American  Sugar  Ref.  Co.,  McFarland 

V.    899 

American  Surety  Co.  t.  Idaho  use  of 

Mills    (Mem.)    (241  U.  S. 

690,  36  Sup.  Ct.  Rep.  553)   1237 
American  Well  Works  Co.  v.  Layne 

ft  B.  Co.  (241  U.  S.  267,  36 

Sup.  (X  Rep.  686)  987  , 

€0  Ii.  ed. 


Anderson  v.  Forty-Two  Broadway  Ca 
(239  U.  S.  69,  36  Sup.  Ct. 

Rep.  17)   152 

Thome  v 554 

Tyee  Realty  Co.  v 564 

Andrews  v.  Osborn  (Mem.)   (239  U.  S. 

629,  36  Sup.  Ct.  Rep.  166)     476 

United  States  v 641 

Arana    de   Villanueva    v.    Villanueva 
(239  U.  S.  293,  36  Sup.  Ct. 

Rep.  109)    293 

Arant,  United  States  ex  rel.,  v.  Lane 
(Mem.)   (241  U.  S.  677,  36 

Sup.  Ct.  Rep.  727)    1233 

Archer,  United  States  v 918 

Arkansas,  St.  Louis,  I.  M.  ft  S.  R.  Co. 

V 776 

Armour  ft  Co.  v.  North  Dakota   (240 
U.  S.  610,  36  Sup.  Ct.  Rep. 

440)     771 

Arrigo  v.  Hyers   (Mem.)    (239  U.  S. 

653,  36  Sup.  Ct.  Rep.  161)     487 
Atchison,  T.  ft  S.  F.  R.  Co.  v.  Harold 
(241  U.  S.  371,  36  Sup.  Ct. 

Rep.  666)   1050 

Male  V 644 

y.  Public    Service    Commission 
(Mem.)    (239  U.  S.  666,  36 

Sup.  Ct.  Rep.  167)   488 

y.  Swearingen   (239  U.  S.  339, 

36  Sup.  Ct.  Rep.  121) 817 

T.  United  States  (Mem.)    (289 
U.  S.  646,  36  Sup.  Ct  Rep. 

166)     483 

Atlantic  Coast  Line  R.  Co.  v.  Bur- 
nette    (239  U.   S.   199,  36 

Sup.  Ct.  Rep.  75)   226 

T.  Glenn    (239   U.    S.    388,   86 

Sup.  Ct.  Rep.  164)    344 

B. 

Backus,  Chin  Fong  y 869 

Choy  Gum  v.  (Mem.)   486 

Chu  Tai  Ngan  y.  (Mem.)  1236 

Healy  y.   (Mem.)    1224 


CASES  REPOBTED. 


Baocm   &   Sons  t.   Kinkead    (Mem.) 
(241  U.  S.  680,  36  Sup.  Ot 

Rep.  728)    1234 

Badden  v.  United  States  (240  U.  S. 

391,  36  Sup.  a.  Rep.  367)  706 
Baddsn  Clothing  Co.  t.  Burnham- 
Munger-Root  Dry  Gkx>da 
Co.  (Mem.)  (241  U.  S.  678, 
36  Sup.  Ct  Rep.  727) ....  1233 
Baiiey  ▼.  Baker  Ice  Maeh.  Co.  (230 
U.  S.  268,  36  Sup.  Ct  Rep. 

60)     276 

T.  Yates  (240  U.  6.  541,  36  Sup. 

Ct.  Rep.  429)    788 

Baird,  Morris  Canal  k  Bkg.  Co.  ▼.  ...     177 

Baker,  Broussard  y.   (Mem.)    1215 

Baker  Ice  Mach.  Co.,  Bailey  y 275 

Baldwin,    Abercrombie   k   F.    Co.    t. 

(Mem.)     485 

Ballinger  t.  West  Pub.  Co.    (Mem.) 
(239  U.  8.  646,  30  8up.  Ct. 

Rep.  167)   484 

Baltic  Min.  Co.,  Stanton  y 546 

Baltimore  y.  United  R.  k  Electric  Co. 
(Mem.)   (241  U.  S.  671,  36 

Sup.  Ct.  Rep.  722)   1230 

Baltimore    &    O.    R.    Co.,    Fouts    y. 

(Mem.)     478 

T.  Hostetter    (240   U.    S.   620, 

36  Sup.  Ct.  Rep.  475)   829 

Reedy.  (Mem.)    481 

Bank,  Alice  State,  y.  Houston  Pasture 

Co.  (Mem.)   (241  U.  &  674, 

36  Sup.  Ct  Rep.  734)    ...  1231 

Bronx      Nat.,     y.      Rosenthal 

(Mem.)     (241   U.   S.   672, 

36  Sup.  Ct.  Rep.  723)   1230 

Century  Say.,  Moody  y.  (239 
U.  S.  374,  36  Sup.  Ct  Rep. 

Ill)    336 

Commercial  Nat,  y.  Canal- 
Louisiana  Bank  k  T.  Co. 
(239  U.  S.  520,  36  Sup.  Ct 

Rep.  194)  417 

Commercial  Nat,  Martin  y. 
(Mem.)   (241  U.  S.  662,  36 

Sup.  Ct  Rep.  449)    1227 

Coon  Rapids  Nat,  y.  Lee 
(Mem.)   (239  U.  S.  659,  36 

Sup.  Ct  Rep.  284)    489 

Farmers  k  M.  Nat.,  t.  Ridge 
Aye.  Bank  (240  U.  S.  498, 

36  Sup.  Ct  Rep.  461) 767 

Farmers  k  M.  State,  y.  Park 
(Mem.)  (241  U.  S.  645,  36 

Sup.  Ct  Rep.  451)    1218 

First  Nat,  y.  Eberhart  (Mem.) 
(239  U.  S.  626,  36  Sup.  Ct 

Rep.  162)  473 

First  Nat,  t.  Hoggson  Bros. 
(Mem.)  (241  U.  S.  670,  36 
Sup.  Ct  Rep.  727)    1233 


Bank,  First  Nat,  t.  Kehnast  (Mem.) 
(241  U.  6.  664,  36  Sup.  Ct 

Rep.  724)   

Jones  Nat,  y.  Yates  (240  U. 
S.   541,  36  Sup.  Ct  Rep. 

429)     

National,  y.  Shackelford  (239 
U.  S.  8},  36  Sup.  Ct  Rep. 

17)     

National,  of  Commerce  y.  Allen 
(Mem.)   (239  U.  S.  642,  36 

Sup.  Ct.  Rep.  163)   

National,  of  Commerce  y.  Equi- 
table Trust  Co.  (Mem.) 
(239  U.  S.  648,  36  Sup.  Ct. 

Rep.  221)  

National,  of  Commerce,  Russo- 
Chinese  Bank  v.  (241  U.  S. 
403,  36  Sup.  Ct  Rep.  652) 
National,  of  Commerce  y.  Unit- 
ed States  (Mem.)  (241 
U.  S.  658,  36  Sup.  Ct  Rep. 

287)     

New  Hampshire  Say.,  Haines 
TUe  k  Mantel  Co.  y.  (240 
U.  S.  617,  36  Sup.  Ct  Rep. 

409)    

New  Hampshire  Say.,  Jackson- 
Walker  Coal  k  Material 
Co.  y.    (240  U.  S.  617,  36 

Sup.  Ct.  Rep.  409) 

New  Hampshire  Say.,  Vamer  y. 
(240  U.  S.  617,  36  Sup.  a. 

Rep.  409)    

Ridge  Aye.,  Farmers  k  M.  Nat. 
Bank  y.  (240  U.  S.  498,  36 

Sup.  Ct.  Rep.  461)    

Russo-Chincse,  y.  National 
Bank  of  Commerce  (241 
U.  S.  403,  36  Sup.  Ct  Rep. 

652)     

Utica,  y.  Yates  (240  U.  S.  541, 

36  Sup.  Ct  Rep.  429) 

Bank  k  T.  Co.,  Canal-Louisiana,  Com- 
mercial Nat  Bank  y.  (239 
U.  S.  520,  36  Sup.  Ct  Rep. 

194)     

Bankers  Trust  Co.  y.  Texas  ft  P.  R. 
Co.  (241  U.  S.  205,  36  Sup. 

Ct.  Rep.  660)    

Bank  of  SUplehurst  y.  Yates  (240  U. 
S.  541,  36  Sup.  Ct  Rep. 

429)    

i^wwif^  Co.  y.  California  ex  reL 
Webb    (240  U.  S.  142,  36 

Sup.  Ct  Rep.  338)    

Barber  Asphalt  Paying  Ca  y.  St.  Paul 
(Mem.)   (230  U.  S.  644,  36 

Sup.  Ct.  Rep.  166)    

Barlow  t.  Northern  P.  R.  Co.  (240 
U.  S.  484,  36  Sup.  Ct.  Rep. 

456)     

Barnard,  Curtice  Bros.  Ca  y.  (MemO 


1223 


788 


158 


482 


486 


1065 


1225 


828 


828 


828 


767 


1065 
788 


417 


1010 


788 


560 


488 


760 
1236 


nABiM  RKPOKIXD. 


BuBow,  United  SUtM  T. IH 

B«MO  T.  United  8UtM  (UQ  U.  S.  80E, 

SB  Sop.  Ck  B^  e2S)   ....     4U 
Bate  Cmutr  v.  Hippie  (HanL)    (241 

U.8.ST8,S0  8ap.CtBep.) 

723)    1281 

BMgham  V.  Hew  York.  P.  ft  N.  R.  Co. 

(£41  U.  8.  2S7,  M  Sup.  CL 

Rep.  6M)  077 

BMndi7,  Dredging    ft 

T.  (Hem.)..     481 
Bwiker,  N  v.  1100 

Bder  ■7>i 

K  (Mem.) 

(241  U.  6.  M7,  Se  Bvp.  Ct 

Rep.  681)   1220 

BerrrUU,  Ourk  CHI  Co.  t.  (Mem.) ...     48T 
Bettendorf  Axle  Cck,  Onuuly  Tnut 

Co.  T.  (Mem.)   12S0 

Bettman    t.    United    SUtei    (Mem.) 

(23a  U.  S.  642,  S6  Sup.  CI 

Eep.  183)    4B2 

Bigger.  Tewe  ft  P.  E.  Co.  * 810 

Bi-Met»Ilic  Inveat   Co.  t.   SUte   Bd. 
(239  U.  B. 
Rq>.  lil)     872 
Binghun  U.  B.  811, 

^  Rep.  834)....    1130 

Bidier,  Hamilton  Tnwt  Co.  t.  (Hem.)     482 
Bidiop  Y.  Pryor   (Hem.)    (241  U.  B. 

878,  38  Sup.  Ct  Rep.  727)   1233 
BUek,  Sheridan  ft  Wilaon,  Hudge  v. 

(Mem.)     482 

Bllih  UUl.  Co.,  Georgia,  F.  ft  A.  R. 

Co.  T 1MB 

Blumenthal  t.  Btrat  (Mem.)    (241  U. 

B.   882,   38   Sup.   Ct   Rep. 

449) 1227 

Boarman,  United  State*  ex  rel.  LouUl- 

aua  V.  (Hem.)   482 

(Hem.)   ....  1217 
8B7 


Bombolla,  MlnneapoUa  ft  St  L.  R.  Co. 

» 081 

Bond,  Chltago,  R.  I.  ft  P.  R.  Q>.  T.  . . .     788 

Booth,  United  SUtea  V.  (Hem.)   12SS 

Borland  t.  Northern  Tnut  S.  D.  Co, 

(Mem.)   (241  U.  B.  00«,  38 

Svp.  Ct  Rep.  447)    12SS 

Boaton  ft  U.  R.  Co„  Peterborangb  R. 

Co.  V.  (Mem.)   474 

Boaton  T.  Co.,  Baton  v.    7S8 

Botkin,  Ft  a  ft  H.  a 


Co.  ■ 


Laak 
Bottlara    Seal    Co.,    Uontgomery    T. 

(Mem.)     4S1 

Bonlanger  ▼.  LonUiana   (Hem.)    (230 

U.  e.  884,  86  Sup.  Ct  Rep. 

168)    487 

Bowdltch  T.  Jackion  Co.  (Hon.)   (230 

U.  S.  827,  86  Sup.  Ct  Rep. 

l«t)    474 

••  Ii.  ed. 


Bowen  v.  Dteka  PraiB  Guard  Hfg.  Co. 
(Hem.)  (241  U.  S.  871,  38 
Snp.  Ct  Rap.  722}    

Bower,  Chleago  ft  N.  W.  R.  Co.  v.. . . 

Bradley,  Bingluun  v 

*.  Spokane  ft  I.  E.  R.  Co. 
(Mem.)   (241  U.  S.  639,  36 

Sup.  Ct.  Rep.  285)    

Wakefield  V.  (Hem.)   

Brady,  Dodge  v 

V.  Kern  (Mem.)  (230  U.  S. 
043,  38  Bup.  Ct  Rep.  164) 

Bramlett,  Southern  R.  Co.  t.    [Uao.) 

Brandt  Rx  parte  (Mem.)  (241  U.  S. 
643,  36  Sup.  Ct.  Rep.  446) 

Bray  v.  United  SUtea  Fidelity  ft  G. 
Co.  (Mem.)  (230  U.  B.  028, 
30Sup.  Ct  Rep.  164) 

Braiee  y.  Michigan  (241  U.  S.  340, 
S6  Sup.  Ct  Rep.  SOI) 

Brlgga  T.  United  Shoe  Machinery  Co. 
(830  U.  B.  4S,  38  Sup.  Ct 
Hep.  6)    

British  8.  S.  Co.  v.  Clarke  (Hem.) 
(241  U.  S.  673.  S6  Snp.  Ct 
Rep.  723)   

Brogan  t.  National  Surety  Co.  (Hem.) 
(241  U.  S.  870,  30  Sup.  Ct 
Rep.  721)    

Bronx  Nat  Bank  v.  Roaenthal  (Hem.) 
(241  U.  S.  072.  30  Sup.  Ct 
Hep.    723)     

BrouBcard  v.  Baker  (Mam.)  (241  U. 
8.   639,  30   Bup.   Ct  Rep. 

285)     

T.  Smith.  See  BROoaaaBD  T. 
Baku. 

Brown.  AblMtt  t.  

Bngliah  v.   (Hem.)    

Hapai  V 

Harmon  y,  (Mem.)    

V.  Pacific  Coaat  Coal  Co.  (241 
U.  B.  571,  36  Sup.  Ct  Rep. 

701)     

St.  LonU  ft  8.  F.  R.  Co.  T.  ... 

Bruahaher  v.  ffi  240  U. 

S.  1.  36  Sup.  Ct.  Rep.  236] 

Bukva,  Ex  parte  (Mem.)  (241  U.  8. 
647,  36  Sup.  Ct.  Rep.  482) 

BuUen  ▼.  Wiaoonain  (240  U.  S.  826,  38 
Sup.  Ct  Rep.  473)    

Burka  Electric  Co.,  Pneu- 

matic T(  Uem.) 

Bnra«tt^  Atlantio  Coaat  Line  R.  Co. 


1237 
1177 


Buraham-Mnnger-Root  Dry  Qooda  Coq 

Baddeia    ClotUng    Co.    v. 

(Mem.)    1283 

Borrongha  ▼.  Chamben   (Mem.)    (23V 

U.  8.  849,  38  Sup.  Ct  Rep. 

284)    486 


CASES  REPORTED. 


Busch   V.    Stromberg-CarlBon   Teleph. 

Mfg.  Co.   (Mem.)    (239  U. 

S.   644,  86   Sup.   Ct.   Rep. 

166)     483 

Butler,  Gardiner  v.  (Mem.)    1226 

y.  Perry  (240  U.  S.  328,  36  Sup. 

Ct.  Rep.  268)    672 

Byera,  Southern  Exp.  Co.  v 826 

Byrne,  Inter-Ialand  Steam  NaT.  Co.  ▼.    382 


a 


Caldwell  t.  Donaghey  (Mem.)  (241  U. 

S.   690,   36   Sup.   Ct.   Rep. 

554)     1238 

California  ex  rel.  Webb,  Banning  Co. 

V 669 

Callaghan   v.   Massachusetts    (Mem.) 

(241  U.  S.  667,  36  Sup.  Ct. 

Rep.  651)   1229 

Calumet   Transit   Co.,    Smith   Co.   v. 

(Mem.)     1234 

Cambria  Iron  Co.  ▼.   Carnegie  Steel 

0>.  (Mem.)   (239  U.  S.  644, 

36  Sup.  Ct.  Rep.  166)   483 

Campbell,  Southern  R.  Co.  v 166 

Spokane  &  L  E.  R.  Co.  v 1125 

Ccmal-Louisiana  Bank  A.  T.  Co.,  Com- 
mercial Nat.  Bank  v 417 

Cardona  v.  Quifiones    (240  U.  S.  83, 

36  Sup.  Ct.  Rep.  346)    538 

Carey  v.  Donohue  (240  U.  S.  430,  36 

Sup.  Ct.  Rep.  386)    726 

Carlin  Constr.  Co.,  Guerini  Stone  Co. 

V 636 

Camahan,  Chesapeake  &  0.  R.  Co.  t.  979 
Carnegie  Steel  Ck>.,  Cambria  Iron  Co. 

V.   (Mem.)    483 

▼.  United  SUtes  (240  U.  S.  166, 

36  Sup.  Ct.  Rep.  342)   676 

Carolina,  C.  &  0.  R.  Co.,  Shewalter  v. 

(Mem.)     476 

Carolina  Glass  Co.  v.  Murray  (240  U. 

S.   306,  36   Sup.   Ct.   Rep. 

293)     658 

▼.  South   Carolina    (240   U.   S. 

305,  36  Sup.  Ct.  Rep.  293)     658 

Caasill,  South  Dakota  v.  (Mem.) 1236 

Catani,  Swift  k  Co.  v.  (Mem.)   1238 

Causey  v.  United  States    (240  U.  S. 

399,  36  Sup.  Ct.  Rep.  365)  711 
Central    R.    Co.    ▼.    United    States 

(Mem.)    (241  U.  S.  658,  36 

Sup.  Ct.  Rep.  446)    1226 

Central  Trust  Co.,  Chicago  Audi- 
torium Asso.  T 811 

▼.  Chicago    Auditorium     Asso. 

(240  U.  S.  581,  36  Sup.  Ct. 

Rep.  412)    811 

T.  Lueders  &  Co.  (239  U.  S.  11, 

36  Sup.  Ct.  Rep.  1)   119 

Century  Sav.  Bank,  Moody  t 836 

10 


Gerecedo  ▼.  United  States  (289  U.  8. 

1,  36  Sup.  Ct.  Rep.  8)  . . . .     118 
Cerri  v.  Pagano   (Mem.)    (241  U.  & 

693,  36  Sup.  Ct.  Rep.  726)   1289 
Chambers,  Burroug^  ▼.  (Mem.)   ....     486 

Chappel,  Gidney  v 910 

Chase,  United  States  t.  (Mem.)    ....  1229 

Chaves,  De  Elzaburu  ▼. 290 

Chesi^eake  &  O.  R.  Co.  ▼.  Carnahan 
(241  U.  S.  241,  86  Sup.  Ct 

Rep.  594)    979 

▼.  De  Atley  (241  U.  S.  310,  36 

Sup.  Ct.  Rep.  564)    1016 

▼.  Dwyer.     See  Chesapeake  & 

0.  R.  Co.  V,  Gainet. 
V.  Gainey    (241  U.  S.  494,  86 

Sup.  Ct.  Rep.  633)    1124 

▼.  Kelly    (241    U.    S.    485,    36 

Sup.  Ct.  Rep.  630)    1117 

▼.  Proffitt    (241   U.  S.  462,  36 

Sup.  Ct.  Rep.  620)    1102 

Chicago,  Mulcare  v.  (Mem.)    1221 

Chicago  &  A.  R.  Co.  t.  Public  Service 
Commission  (Mem.)  (239 
U.    S.    655,    36    Sup.    Ct. 

Rep.   167)    488 

▼.  Wagner    (239  U.  S.  452.  30 

Sup.  Ct.  Rep.  135)   379 

Chicago  &  N.  W.  R.  Co.  v.  Bower  (241 
U.  S.  470,  36  Sup.  Ct.  Rep. 

624)     1107 

Menasha  Paper  Co.  v 885 

Chicago  Auditorium  Asso.  ▼.  Central 
Trust  Co.   (240  U.  S.  581, 

36  Sup.  Ct.  Rep.  412) 811 

Central  Trust  Co.  v 811 

Chicago,  B.  &  Q.  R.  Co.  v.  Harrington 
(241  U.  S.  177,  36  Sup.  Ct. 

Rep.  517)    941 

Lindsay  V.   (Mcti.)    1233 

Missouri  v 1148 

T.   Public    Service   Commission 
(Mem.)    (239  U.  S.  653.  36 

Sup.  Ct.   Rep.  167)    488 

Chicago  City  R.  Co.,  Venner  v.  (Mem.)     488 
Chicago,  L.  S.  &  S.  B.  R.  Co.,  Fellers 

v.  (Mem.)    1281 

Chicago,  M.  A,  St.  P.  R.  Co.  t.  Public 
Service  Commission  (Mem.) 
(239  U.  S.  655,  36  Sup.  Ct. 

Rep.   167)    488 

Chicago,  R.  I.  &  P.  R.  Co.  ▼.  Bond 
(240  U.  S.  449,  36  Sup.  Ct 

Rep.  403)    786 

T.  Devine    (289   U.   8.   52,   86 

Sup.  Ct  Rep.  27)  140 

▼.  Public    Service    Commission 
(Mem.)   (289  U.  S.  655,  36 

Sup.  Ct.  Rep.  167)    488 

T.  Whiteaker    (239  U.   S.  421, 

36  Sup.  Ct.  Rep.  152)   360 

▼.  Wright    (289  U.  S.  548,  36 

Sup.  Ct  Rep.  186)  431 


CASES  REPORTSD. 


Chieog  Ah  Sui  v.  McCoy   (2C0  U.  S. 

139,  86  Sup.  Ct.  Rep.  96) . .     188 

ChUders,  Meen  V.  (Mem.)    1227 

Chin  Fong  ▼.  Backus    (241  U.  S.  1, 

36  Sup.  Ct.  Rep.  400)   869 

Chin   Quock  Wah   v.   White    (Mem.) 

(241  U.  S.  689,  36  Sup.  Ct. 

Rep.  660)   1287 

Choy   Gum  ▼.   Backus    (Mem.)    (239 

U.  S.  640,  36  Sup.  Ct.  Rep. 

284)     486 

Christenscn,  National  Brake  A,  Elec- 
tric Co.  V.  (Mem.)   1226 

Christianson  v.  King  County  (239  U. 

S.   366,   36   Sup.   Ct.   Rep. 

114)     327 

Church    Co.    v.    Hilliard    Hotel    Co. 

(Mem.)    (241  U.  S.  665,  36 

Sup.  Ct  Rep.  651 )    1228 

Chu  Tai  Ngan  v.  Backus  (Mem.)   (241 

U.  S.  084,  36  Sup.  Ct.  Rep. 

286)     1236 

Ciffo  T.  Ciffo  (Mem.)    (241  U.  S.  660, 

36  Sup.  Ct.  Rep.  448)    1226 

Cincinnati,  N.  0.  &  T.  P.  R.  Co.,  Day- 
ton Coal  &  I.  Co.  V 376 

▼.  Massingale   (Mem.)    (241  U. 

S.   693,   36   Sup.   Ct.   Rep. 

724)     1230 

▼.  Rankin    (241   U.  S.  319,  36 

Sup.  Ct.  Rep.  655)    1022 

aarke,  British  S.  S.  Co.  v.  (Mom.)  ..   1231 

Classen,  Northern  P.  R.  Co.  v 342 

Clement  v.  James  (Mem.)    (241  U.  S. 

657,  36  Sup.  Ct.  Rep.  286)   1226 
▼.  Whittaker    (Mem.)    (241  U. 

S.   679,   36   Sup.   Ct.   Rep. 

727)     1233 

Cleveland,   C.  C.  &   St.   L.  R.  Co.  v. 

Dettlebach  (239  U.  S.  688, 

36  Sup.  Ct.  Rep.  177)    463 

Coates  v.  District  of  Ck>lumbia  (Mem.) 

(239  U.  S.  636,  241  U.  S. 

637,  36  Sup.  Ct.  Rep.  445) 

479,  1216 
Colbum    ▼.    United    States     (Mem.) 

(239  U.  S.  643,  36  Sup.  Ct. 

Rep.   163)    483 

Coleman,  Levindale  Lead  A,  Zinc  Min. 

Co.  V 1080 

CoUini  ▼.  Phillips  (Mem.)    (241  U.  S. 

682,  36  Sup.  Ct.  Rep.  284)   1235 
Colorado    City   v.    Harrison    (Mem.) 

(241  U.  S.  664,  36  Sup.  Ct. 

Rep.  649)     1227 

Commercial    Acetylene    Co.,    Fireball 

Gas  Tank   &   Illuminating 

Co.  V 191 

Commercial    Nat.     Bank    ▼.     Canal- 
Louisiana   Bank  ft  T.   Co. 

(239  U.  S.  620,  36  Sup.  Ct. 

Rep.   194)    417 

Martin  ▼.  (Mem.)   1227 

•0  li.  ed. 


1235 

482 
1211 


489 

1232 
1234 

1226 

478 
1216 

1238 


Commons,  Hallowell  v 409 

Comp ton  Co.,  Allen  V.  (Mem.)   486 

Concannon,  Northern  P.  R.  Co.  t 342 

Congregaci6n  de  la  Mision  de  Sen 
Vincente  de  Paul  v.  Reyes 
y  Mijares  (Mem.)  (241  U. 
S.    686,   36   Sup.   Ct.  Rep. 

447)     

Consolidated    Arizona    Smelting    Co., 

Hinchman  v.  (Mem.)    .... 

Conway,  Holmes  v 

Coon  Rapids  Nat.  Bank  v.  Lee  (Mem.) 

(239  U.  S.  669,  36  Sup.  Ct. 

Rep.  284)    

Cooper  ▼.  United  SUtes  (Mem.)    (241 

U.  S.  676,  36  Sup.  Ct.  Rep. 

726)     

Corrugated  Bar  Co.,  Trussed  Concrete 

Steel  Co.  ▼.  (Mem.)  

Ck>urtney  v.  Georger  (Mem.)    (241  U. 

S.    660,   36   Sup.   Ct.   Rep. 

448)     

Court  of  First  Instance,  Director  of 

Prisons  v.  (Mem.)    

Cousins,  Illinois  C;  R.  Co.  v.   (Mem.) 

Craig  V.  Kentucky  (Mem.)  (241  U. 
S.  602,  36  Sup.  Ct.  Rep. 
722)     

Cramp  ft  Sons  Ship  ft  Engine  Bldg. 
Co.  V.  United  States  (239 
U.  S.  221,  36  Sup.  Ct.  Rep. 
70)     23b 

Crane  v.  New  York  (239  U.  S.  195,  36 

Sup.  Ct.  Rep.  85)   218 

Crescent  Mill.  Co.  ▼.  Strait  Mfg.  Co. 
(Mem.)  (241  U.  S.  673,  36 
Sup.  Ct.  Rep.  724)   1231 

Crocker  t.  United  States   (240  U.  S. 

74,  36  Sup.  Ct.  Rep.  245)     633 

Crutchley  v.  National  Fireproofing  Co. 
(Mem.)  (241  U.  S.  664,  36 
Sup.  Ct.  Rep.  549)    1228 

Cubbins  v.  Mississippi  River  Commis- 
sion (Mem.)  (241  U.  S. 
601,  36  Sup.  Ct.  Rep.  554)  1238 
▼.  Mississippi  River  (Commis- 
sion (241  U.  S.  361,  36 
Sup.  Ct.  Rep.  671)  1041 

Cunningham  v.  Floumoy  (Mem.) 
(241  U.  S.  687,  36  Sup. 
Ct.  Rep.  460)    1236 

Curtice  Bros.  Co.  v.  Barnard  (Mem.) 
(241  U.  S.  686,  36  Sup.  Ct. 
Rep.  447)    1286 

Curtis  T.  West  End  Street  R.  Co. 
(Mem.)  (241  U.  S.  685,  36 
Sup.  Ct.  Rep.  286)   1236 

Curtiss,  Stead  v.  (Mem.)   478 

Cuyahoga  River  Power  Co.  v.  Akron 
(240  U.  S.  462,  36  Sup.  Ct. 
Rep.  402)   748 


0A8B8  BEPOBTED. 


D. 


Daeehe  ▼.  Bollsohweiler  (Mem.)    (241 

U.  8.  641,  36  Sup.  Ct.  Rep. 

446)    1217 

Davis,  Ohio  ex  rd.,  ▼.  Hildebrant  (241 

U.  S.  665,  86  Sup.  Ct  Rep. 

708) 1172 

.Virginia   R.   ft   Power   Ca   ▼. 

(Mem.) 1281 

Dayton  t.  Stanard  (241  U.  S.  688,  36 

Sup.  Ct.  Rep.  696)    1190 

Dayton  Coal  &  I.  Co.  v.  Cincinnati,  N. 

0.  A  T.  P.  R.  Co.  (239  U. 
S.  446,  36  Sup.  Ct.  Rep. 
137)    875 

De  Atley,  (]lhe8i4>eake  &  0.  R.  Co.  v.  . .  1016 
Deaton  v.  Kentucky  (Mem.)    (241  U. 

S.   683,   36   Sup.   Ct   Rep. 

284)     1285 

De  Elzaburu  v.  Caiaves  (289  U.  S.  288, 

86  Sup.  Ct.  Rep.  47)    290 

De  la  Rama  v.  De  la  Rama  (241  U.  S. 

154,  36  Sup.  Ct.  Rep.  518)  932 
Delaware,  L.  &  W.  R.  Ck>.,  Shanks  ▼.  486 
T.  Yurkonis  (Mem.)   (239  U.  S. 

652,  36  Sup.  Ct.  Rep.  160)  486 
Del  Pozo  y  Marcos,  Wilson  Cypress 

CJo.  V.   (Mem.)    1222 

Des  Moines,  Northwestern  Laundry  t.  896 
Detroit  &  M.  R.  Co.  v.  Michigan  R. 

Commission     (240    U.    S. 

564,  36  Sup.  Ct.  Rep.  424)  802 
Dettlebach,  Cleveland,  C.  C.  &  St  L. 

R.  CJo.  V 453 

Deupree  v.  Watson   (Mem.)    (239  U. 

8.  656,  86   Sup.   Ct   Rep. 

167)     488 

Devine,  Chicago,  R.  I.  &  P.  R.  Co.  v.  140 
Dicks  Press  Guard  Mfg.  Co.,  Bowen 

V.  (Mem.)    1230 

Diener  v.  Lane   (Mem.)    (239  U.  S. 

632,  36  Sup.  Ct  Rep.  219)  477 
Dillingham,  Thompson  A.  F.  Lumber 

Co.  V.  (Mem.)  484 

Director  of  Prisons  v.  (}ourt  of  First 

Instance    (Mem.)    (239  U. 

S.   633,   36   Sup.   Ct   Rep. 

220)     478 

District     of     Columbia,     Coates     v. 

(Mem.)    479,  1216 

▼.  Washington     Caslight     Co. 

(Mem.)    (241  U.  S.  676,  86 

Sup.  a.  Rep.  725)    1232 

Dodge  ▼.  Brady   (240  U.  8.  122,  86 

Sup.  Ct.  Rep.  277)    560 

▼.  Osbom    (240  U.  S.  118,  36 

Sup.  Ct  Rep.  275)    557 

Donagh^,  Caldwell  v.  (Mem.)   1238 

Donald  v.  Philadelphia  &  R.  Coal  ft 

1.  Ck>.  (241  U.  8.  829,  86 
Sup.  Ct  Rep.  563)    1027 

Donat,  Pennsylvania  Co.  v 189 

11 


Donohue,  Carey  ▼ 

Dowd  V.  United  Mine  Workers*  (Mem.) 

241  U.  S.  692,  36  Sup.  (X 

Rep,  722)    

Downej    ▼.    Hartford    F.    Ins.    Co. 

(Mem.)   (241  U.  a  671,  86 

Sup.  Ct  Rep.  721^)  

Duel  T.  Hollins   (241  U.  8.  523,  36 

Sup.  Ct.  Rep.  615)  

Duncan,  Ex  parte  (Mem.)   (289  U.  S. 

630,  36  Sup.  Ct  Rep.  165) 
Dunham  v.  Kauffman  (Mem.)   (241  U. 

S.   658,  86  Sup.   Ct  Rep. 

728)     

Dunlevy,  New  York  L.  Ins.  Co.  v.  . . . 
Da  Pont  de  Kemours  Powder  Co.  v. 

Masland    (Mem.)    (289  U. 

S.   646,  36   Sup4  Ct.   Rep. 

219)    

Dure  ▼.  Wright   (Mem.)    (241  U.  S. 

658,  86  Sup.  Ct  Rep.  287) 
Duval  ▼.  Louisiana  (Mem.)    (239  U. 

8.  626,  36  Sup.   Ct  Rep. 

162)     

Dwyer,  Chesapeake  ft  0.  R.  Co.  ▼ 


725 

1288 

1280 
1148 

476 


1222 
1140 


484 
1228 


474 
1124 


Eaton  V.  Boston  Safe  Deposit  ft  T. 

Co.  (240  U.  S.  427,  36  Sup. 

Ct  Rep.  391 )    723 

T.  Shiawassee   County    (Mem.) 

(289  U.  S.  647,  86  Sup.  Ct. 

Rep.  221)    484 

Eberhart,  First  Nat  Bank  v.  (Mem.)     478 
Eichel  V.  United  States  Fidelity  ft  G. 

Co.  (Mem.)   (239  U.  S.  629, 

86  Smp.  Ct.  Rep.  165)   475 

El  Dla  Ins.  Co.  v.  Sinclair    (Mem.) 

(241  U.  8.  661,  36  Sup.  Ct 

Rep.  449)    1226 

Elkan  ▼.  Maryland   (Mem.)    (239  U. 

a   634,  36   Sup.   Ct  Rep. 

221)     

Embree  ▼.  Kansas  City  ft  L.  Boule- 
vard Road  Dist  (240  U.  S. 

242,  36  Sup.  Ct  Rep.  317) 
English  V.  Brown  (Mem.)    (241  U.  S. 

667,  36  Sup.  Ct  Rep.  551)   1229 
Enright  v.  Tancey  (Mem.)   (241  U.  8. 

678,  86  Sup.  Ct.  Rep.  727)  1288 
Equitable  Trust  Co.,  National  Bank  of 

Commerce  v.    (Mem.)    ....  485 
Erie  R.  Co.  v.  Prowski  (Mem.)    (241 

U.  8.  686,  86  Sup.  Ct  Rep. 

447)     1236 

Essex  V.  New  England  Teleg.  Ca  (289 

U.  8.  818,  86  Stq>.  Ct  Rep. 

102)    801 

Eugene,  Grelle  v.  (Mem.)    484 

Everett,  Hollins  v.  (Mem.) 1226 

Hollins  ft  Co.  V.   (MenL)    ....  1282 


478 


624 


CASES  REPORTED. 


parte  Brandt  (Mem.)    (241  U.  S. 

643,  36  Sup.  Ct.  Rep.  448)  1218 
Bukva  (Mem.)    (241  U.  S.  647, 

30  Sup.  Ct.  Rep.  452)   1219 

Duncan  (Mem.)   (239  U.  S.  630, 

36  Sup.  Ct.  Rep.  166) 476 

Griffin   (Mem.)    (241  U.  a  650, 

36  Sup.  Ct.  Rep.  — )    1221 

Lamar   (Mem.)   241  U.  S.  643, 

36  Sup.  Ot  Rep.  — )  ....  1217 
Motion    Picture    Patents    Co. 

(Mem.)    (241  U.*S.  691,  36 

Sup.  Ct.  Rep.  554)    1238 

Robinson    (Mem.)     (241   U.   S. 

652,  36  Sup.  Ct.  Rep.  722)  1222 
Robinson    (Mem.)     (241   U.   S. 

655,  36  Sup.  Ct.  Rep.  — )  1224 
Sage   (Mem.)    (241  U.  S.  647, 

36  Sup.  Ct.  Rep.  452 )    1219 

Sears   (Mem.)    (241  U.  S.  656, 

86  Sup.  Ct.  Rep.  726)   1224 

Uppercu,  239  U.  S.  435,  36  Sup. 

Ct.  Rep.  140)    368 

Watto,  W.  ft  Co.  (Mem.)    (241 

U.  S.  655,  36  Sup.  Ct.  Rep. 

726)     1224 

Whitt  (Mem.)    (239  U.  S.  636, 

36  Sup.  Ct.  Rep.  283)    479 


F. 


Fairbanks  Steam  Shovel  Co.  ▼.  Wills 
(240  U.  S.  642,  36  Sup.  Ct 
Rep.  466)    841 

Fajardo  Sugar  Co.,  Richardson  v 879 

Faloo  ▼.  Mulet  (Mem.)  (241  U.  S.  646, 

36  Sup.  Ct.  Rep.  451)   1219 

Fall  City  Constr.  Co.,  United  States 
ex  rel.,  Jimmerson  v. 
(Mem.)  (329  U.  S.  641, 
36  Sup.  Ct.  Rep.  163)   482 

Fargo,  Johnson  ▼ 243 

Fargo,  Reid  v 1156 

Farmers'  &  M.  Nat.  Bank  ▼.  Ridge 
Ave.  Bank  (240  U.  S.  498, 
36  Sup.  Ct.  Rep.  461)   767 

Farmers  A  M.  State  Bank  v.  Park 
(Mem.)  (241  U.  S.  645, 
36  Sup.  Ct.  Rep.  451) 1218 

Famham  v.  United  SUtes  (240  U.  S. 

637,  36  Sup.  Ct.  Rep.  427)     786 

Faulk  A  Co.,  Steiner  v.  (Mem.)    ....     481 

Federal    Title   A    T.    Co.,    Nisbet   ▼. 

(Mem.)     1229 

Fellers  t.  Chicago,  Lb  S.  A  S.  B.  R. 
Co.  (Mem.)  (241  U.  8.  672, 
36  Sup.  Ct.  Rep.  723)   1231 

Fewell,  Morley  V.  (Mem.)   488 

Fideli^  A  D.  Co.  ▼.  Pennsylvania  (240 
U.  S.  819,  36  Sup.  Ct.  Rep. 
298)     664 

Filler  t.  Steele    (Mem.)    (241  U.  S. 

648,  36  Sup.  Ct  Rep.  550)  1220 

•0  If.  e^ 


Fireball  Gas  Tank  A  Illuminating  Co. 

▼.    Commercial    Acetylene 

Co.  (239  U.  S.  156,  86  Sup. 

Ct  Rep.  86)    191 

First  Nat  Bank  v.  Eberhart  (Mem.) 

(239  U.  S.  626,  36  Sup.  Ct 

Rep.  162)   478 

T.  Hoggson  Bros.  (Mem.)    (241 

U.  S.  679,  36  Sup.  Ct.  Rep. 

727)     1233 

▼.  Kehnast  (Mem.)    (241  U.  S. 

654,  36  Sup.  Ct  Rep.  724)   1223 
Fleitmann  v.  Shaw  (240  U.  S.  27,  36 

Sup.  Ct.  Rep.  233)    505 

T.  Welsbach  Street  Lighting  Co. 

(240  U.  S.  27,  36  Sup.  Ct. 

Rep.  233)   505 

Floumoy,  Cunningham  v.   (Mem.)    ..   1236 
Ford  V.  United  States  (239  U.  S.  608, 

36  Sup.  Ct.  Rep.  224)    464 

Forty  Barrels  A  Twenty  Kegs,  United 

States  V 995 

Forty-Two  Broadway  Co.,  Anderson  ▼.     152 
Fouts    ▼.    Baltimore    A    0.    R.    Co. 

(Mem.)    (239  U.  S.  633,  36 

Sup.  Ct  Rep.  220)    478 

Frank  v.   Union    P.   R.    Co.    (Mem.) 

(241  U.  S.  694,  36  Sup.  Ct. 

Rep.  728)    1239 

Frear  v.  Western  U.  Teleg  Co.   (241 

U.  S.  329,  36  Sup.  Ct.  Rep. 

563)     1027 

Free  v.  Western  U.  Teleg.  Co.  (Mem.) 

(241  U.  S.  656,  36  Sup.  Ct. 

Rep.   726)    1224 

V.  Western      U.      Teleg.      Co. 

(Mem.)    (241  U.  S.  684,  36 

Sup.  Ct  Rep.  286)    1235 

Freed,  Weber  v 308 

Freeman,  United  States  ▼. 172 

Fuller  Co.  v.  Otis  Elevator  Co.  (Mem.) 

(241  U.  S.  665,  36  Sup.  Ct 

Rep.  650)    1228 

Fushey,  Monadnock  Mills  ▼.   (Mem.)   1228 


G. 


Gage,  Southern  Oregon  Co.  ▼.  (Mem.)  1236 
Gaines  A  Co.  v.  Hellman  Distilling  Co. 

(Mem.)    (241  U.  S.  668,  36 

Sup.  Ct  Rep.  552)   1220 

Rock  Spring  Distilling  Co.  ▼. 

(Mem.)     484 

Gftiney,  Chesapeake  A  O.  R.  Co.  t.  ...  1124 
Gallardo  y  Seary,  Goenaga  y  Olsa  t. 

(Mem.)     1237 

Gardiner  v.  Butler  (Mem.)   (241  U.  S. 

660,  36  Sup.  Ct.  Rep.  448)  1226 
Gardiner  Invest.  Co.  ▼.  Jackson  Co. 

(Mepo.)   (239  U.  8.  628,  36 

Sup.  Ct  Rep.  164)  4T& 

\^ 


CASES  REPORTED. 


G«8t  Realty  &  Invest.  Co.  v.  Schneider 

Granite     Co.      (Mem.)      36 

Sup.  Ct.  Rep.  400)    1239 

▼.  Schneider  Granite  Co.    (240 

U.  S.  65,  60,  36  Sup.  Ct. 

Rep.  264,  255,  400)   . .  .523,    626 

Geary,  Phosnix  R.  Co.  v 287 

Gegiow  T.  Uhl  (239  U.  S.  3,  36  Sup. 

Ct.  Rep.  2)    114 

Georger,  Courtney  t.  (Mem.)   1226 

Georgia,  Heimer  y.  (Mem.)   1237 

▼.  Tennessee   Copper   Co.    (240 

U.  S.  650,  36  Sup.  Ct.  Hep. 

465)     846 

Georgia,  F.  &  A.  R.  Co.  t.  Blish  Mill. 

Co.  (241  U.  S.  190,  36  Sup. 

Ct.  Rep.  541)    948 

Georgia  Southern  ft  F.  R.  Co.,  Town- 
send  V.   (Mem.)    483 

Gidney  v.  Chappel   (241  U.  S.  99,  36 

Sup.  Ct.  Rep.  492)    910 

GiliUand,  Adamson  v.  (Mem.)    1227 

Gillette,  Press  Pub.  Co.  v.  (Mem.) ...  1226 
Glass  T.  Newell.    See  Glass  v.  Wood- 
man. 
▼.  Woodman    (Mem.)     (241   U. 

S.   646,  36   Sup.  Ct.   Rep. 

461)     1219 

Glenn,  Atlantic  Coast  line  R.  Co.  ▼.    344 
Glenwood    Light    ft    Water    Co.    ▼. 

Mutual  Light,  Heat  ft  P. 

Co.  (239  U.  S.  121,  36  Sup. 

Ct.  Rep.  30)    174 

Goenaga  y  Olsa  v.  Gallardo  y  Seary 

(Mem.)    (241  U.  S.  688,  36 

Sup.  Ct.  Rep.  451)   1237 

Gold  Medal  Camp  Furniture  Mfg.  Co. 

y.   Telescope   Cot  Bed   Co. 

(Mem.)    (241  U.  S.  666,  36 

Sup.  Ct.  Rep.  551 )    1228 

Goodrich,  Houston  Oil  Co.  v.  (Mem.)   1225 
Grand  Trunk  R.  Co.  ▼.  United  States 

(Mem.)    (241  U.  S.  681,  36 

Sup.  Ct.  Rep.  728)    1234 

Grant,     Standard     Fashion     Co.     v. 

(Mem.)     1187 

Gray,  New  York  C.  ft  H.  R.  R.  Co.  v.    451 

Osborne  v 865 

Southern  R.  Co.  v 1030 

Great  Northern  R.  Ck>.  v.  Knapp  (240 

U.  S.  464,  36  Sup.  Ct.  Rep. 

399)     745 

T.  Otos  (239  U.  S.  349,  36  Sup. 

Ct.  Rep.  124)    322 

T.  Wiles  (240  U.  S.  444,  36  Sup. 

Ct.  Rep.  406)    732 

Greenlees  v.  Morris   (Mem.)    (239  U. 

S.   627,   36   Sup.   Ct   Rep. 

163)     474 

Grelle  v.  Eugene  (Mem.)    (239  U.  S. 

647,  36  Sup.  Ct.  Rep.  219)     484 
Griffin,  Ex  parte    (Mem.)   241   U.  S. 

660,  36  Sup.  Ct  Rep.  — ..  1221 
J4 


Griffin,KellyT 861 

Gromer,  Palmer  t.  (Mem.)  488 

Grosman,  Union  Trust  Ck>.  v.  (Mem.)  1227 
Gaell  T.  Insular  Collector  of  Customs 

(239  U.  a  93,  36  Sup.  Ct. 

Rep.  89)    163 

Guaranty  Trust  Co.  ▼.  Bettendorf  Axle 

Co.  (Mem.)   (241  U.  S.  671, 

36  Sup.  Ct.  Rep.  722)  ...  1230 
Guardian    Trust    Ck>.,    Kansas    City 

Southern  R.  Co.  v 579 

Guerini  Stone  Co.  ▼.  Carlin  Constr. 

Co.  (240  U.  S.  264,  86  Sup. 

Ct   Rep.  300)    636 

Gundall  t.  Manhattan  R.  Co.  (Mem.) 

(239  U.  S.  664,  36  Sup.  Ct 

Rep.  162)    487 

Guth  T.  Guth  Chocolate  Co.   (Mem.) 

(2(39  U.  S.  640,  36  Sup.  Ct. 

Rep.  161)   481 

Guth  Chocolate  Co.,  Guth  t.  (Mem.)     481 


H. 


Hadacheck  ▼.   Sebastian    (239   U.   S. 

394,  36  Sup.  Ct  Rep.  143)  348 
Hagan  v.  Larkin   (Mem.)    (241  U.  S. 

685,  36  Sup.  Ct.  Rep.  447)  1230 
Haines   Tile   ft    Mantel    Co.   t.   New 

Hampshire  Sav.  Bank  (240 

U.  S.  617,  36  Sup.  Ct  Rep 

409)     828 

Halifax  Tonopah  Min.  Co.  ▼.  Lawson 

(Mem.)    (239  U.  S.  632,  36 

Sup.  Ct.  Rep.  220)    477 

Hallowell  v.  Commons  (239  U.  S.  506, 

36  Sup.  Ct  Rep.  202)    409 

Hamburg- Amerikanische  Packet  Co.  v. 

United   States    (239  U.   S. 

466,  36  Sup.  Ct.  Rep.  212)     387 

United  SUtes  v 387 

Hamilton,  Kitchens  v.  (Mem.)  ..480,  1215 
HamiHon-Brown    Shoe    Co.    v.    Wolf 

Bros,  ft  Co.  (240  U.  S.  251, 

86  Sup.  Ct.  Rep.  269)    62f> 

Hamilton  Trust  Co.  v.  Bisher  (Mem.) 

(239  U.  S.  641,  36  Sup.  a. 

Rep.   161)    482 

Hanish  v.  United  SUtes  (Mem.)   (230 

U.  S.  645,  36  Sup.  Ct.  Rep. 

167)     484 

HanoTer  Star  Mill.  Co.,  Allen  ft  W. 

Co.  V 713 

V.  Metcalf    (240  U.  S.  403,  36 

Sup.  Ct  Rep.  357)    718 

Hapai  ▼.  Brown    (239  U.  S.  502,  36 

Sup.  Ct  Rep.  201)    407 

Hare,  Mackenzie  v 297 

Harmon  v.  Brown  (Mem.)    (241  U.  S. 

688,  36  Sup.  a.  Rep.  451)  1237 
T.  United  SUtes   (Mem.)    (241 

U.  S.  676,  36  Sup.  Ct.  Rep. 

725)     • 1232 


CASES  REPORTED. 


Harold,  Atchiaon,  T.  &  S.  F.  R.  Co.  t.  1060 
Harriqgtoa,  Chicago,  B.  k  Q.  R.  Co.  v.  941 
Harrison,  Colorado  City  v.  (Mem.)..  1227 
Hartford  &  N.  T.  Transp.  Co.,  Lehigli 

k  W.  Coal  Co.  ▼.   (Mem.)   1282 
Hartford    F.    Ins.    Co.,    Downey    v. 

(Mem.)     1230 

Harvey,  Stowe  y 963 

Hawgood  k  A.  Traniit  Co.  ▼.  Mea- 

ford   Transp.    Co.    (Mem.) 

(241  U.  S.  682,  36  Sup.  Ct. 

Rep.   728)    1234 

T.  WillUms  (Mem.)    (241  U.  S. 

682,  36  Sup.  Ct.  Rep.  728)   1234 
Hays  T.  United  States    (Mem.)    (241 

U.  S.  674,  36  Sup.  Ct.  Rep. 

724)     1231 

Healy  ▼.  Backus   (Man.)    (241  U.  S. 

655,  36  Sup.  Ct.  Rep.  726)   1224 
Helm  V.  McCall  .(239   U.  S.   176,  36 

Sup.  Ct.  Rep.  78)   206 

Heimer  ▼.  Georgia  (Mem.)    (241  U.  S. 

680,  36  Sup.  Ct.  Rep.  650)    1237 
Hellman  Distilling  Co.,  Gaines  &  Co. 

V.    (Mem.)    1229 

Hemmer,  United  States  v 1056 

Hennepin  County,  Rogers  v 469 

Rogers  ▼ 594 

Herbert  ▼.  Shanley  Co.   (Mem.)    (241 

U.  S.  666,  36  Sup.  Ct.  Rep. 

651)     1228 

Hildebrant,  Ohio  ex  rel.  Davis  v 1172 

Hill  V.  Lovewell    (Mem.)    (239  U.  S. 

644,  36  Sup.  Ct.  Rep.  166)     483 
Hilliard    Hotel    Co.,    Church    Co.    v. 

(Mem.)     1228 

Hilton-Green,   Mutual   L.   Ins.   Co.  ▼.  1202 
Hinchman    v.    Consolidated    Arizona 

Smelting  Co.   (Mem.)    (239 

U.  S.  640,  36  Sup.  Ct.  Rep. 

161 )     482 

Hippie,  Bates  County  v.  (Mem.)    1231 

Hise    V.    Western    Coal    &,    Min.    Co. 

(Mem.)    (241  U.  S.  666,  36 

Sup.  Ct.  Rep.  661 )   1228 

Hitchman  Coal  ft  Coke  Co.  v.  Mitchell 

(Mem.)    (241  U.  S.  644,  36 

Sup.  Ct.  Rep.  460)    1218 

Hoggson   Bros.,   First   Nat.   Bank   v. 

(Mem.)     1233 

Hollinger,     United     States     use     of 

National     Surety     Co.     v. 

(Mem.)   (241  U.  S.  687,  36 

Sup.  Ct.  Rep.  450)    1236 

Hollins,  Duel  v 1143 

▼.  Everett  (Mem.)    (241  U.  S. 

661,  36  Sup.  Ct.  Rep.  448)   1226 

Wiener,  L.  ft  Co.  v. 1143 

Hollins  ft  Co.  V.  Everett  (Mem.)    (241 

U.  S.  676,  36  Sup.  Ct.  Rep. 

726)     1232 

Holmes  ▼.  Conway  (241  U.  S.  624,  36 

Sup.  Ct.  Rep.  681)    1211 

LewU  T.   (Mem.)    481 

•0  li.  ed. 


Home  Bond  Co.   v.   McChesney    (289 

U.  S.  668,  36  Sup.  Ct.  Rep. 

170)     

Hopkins  t.  Hull    (Mem.)    (241  U.  S. 

669,  36  Sup.  Ct.  Rep.  662) 
Horton,  Seaboard  Air  Line  R.  Co.  v. 
Hostetter,  Baltimore  ft  0.  R.  Co.  v. 
Houck  V.  Little  River  Drainage  Dist. 

(239  U.  S.  264,  36  Sup.  Ct. 

Rep.   68)    

Houston  Oil  Co.  v.  Goodrich   (Mem.) 

(241  U.  S.  667,  36  Sup.  Ct. 

Rep.  286)    

Houston  Pasture  Co.,  Alice  State  Bank 

V.   (Mem.)    

Huff  V.  United  States  (Mem.)   (241  U. 

S.   667,   36   Sup.   Ct.   Rep. 

651)     

Hull,  Hopkins  V.   (Mem.)    

Hyers,  Arrigo  v.    (Mem.)    

Indovina  t.   (Mem.)    


444 

1229 
468 
829 


266 


1225 


1231 


1228 

1229 

487 

487 


Iberia  ft  St.  M.  Drainage  Dist.,  Myles 

Salt  Co.  V 

Idaho  use  of  Mills,  American  Surety 

Co.  V.    (Mem.)    

use  of  Allen,  Title  Guaranty  ft 

Surety  Co.  v 

Idaho-Oregon  Light  ft  P.  Co.,  Westing- 
house  Electric  ft  Mfg.  Co. 

V.   (Mem.)    

Illinois  C.  R.  Co.  v.  Cousins   (Mem.) 

(241  U.  S.  641,  36  Sup.  a. 

Rep.  446)   

▼.  Messina   (240  U.  S.  395,  36 

Sup.  Ct.  Rep.  368)    

▼.  Pelton    (Mem.)     (239   U.   S. 

665,  36  Sup.  Ct.  Rep.  166) 
▼.  Skaggs    (240    U.    S.    66,   36 

Sup.  Ct.  Rep.  249)    

T.  Slaughter    (Mem.)     (239   U. 

S.    651,   36   Sup.   Ct.   Rep. 

169)     

Illinois  Surety  Co.  v.  United  States  use 

of  Peeler  (240  U.  S.  214,  36 

Sup.  Ct.  Rep.  321 )    

Independent    Pneumatic    Tool    Co.    v. 

Burke  Electric  Co.  (Mem.) 

(241  U.  S.  682,  36  Sup.  Ct. 

Rep.   728)     * 

Indian  Territory  Illuminating  Oil  Co. 

▼.    Oklahoma    (240    U.    S. 

522,  36  Sup.  Ct.  Rep.  453) 
Indovina  v.  Hyers  (Mem.)    (239  U.  S. 

654,  36  Sup.  Ct.  Rep.  161) 

Ingram,  Wallbrecht  v.  (Mem.)    

Innes   v.   Tobin    (240   U.    S.    127,   86 

Sup.  Ct.  Rep.  290)    

Insular  Collector  of  Customs,  Gsell  v. 
Ins.  Co.,  El  Dia,  v.  Sinclair   (Mem.) 

(241  U.  S.  661,  36  Sup.  Ct. 

Rep.  449)   


392 

1237 

666 

1234 

1216 
709 
488 
628 

486 

609 


1234 


770 

487 
473 

562 
163 


lt2A 


CASES  BEPOBTED. 


InB.    Co.,    Hartford    F.,    Downey    ▼. 

(Mem.)   (241  U.  S.  671,  36 

Sup.  Ct.  Rep.  722 1230 

MMsaehuBetts    Bonding    k,   v. 

Bealty  Trust  Co.    (Mem.) 

(241  U.  S.  687,  36  Sup.  Ct. 

Bep.  451)    1287 

MiBsouri    State    L.,    Stine    ▼. 

(Mem.)   (241  U.  S.  642,  36 

Sup.  Ct.  Bep.  447)    1217 

Mutual  L.,  v.  Hilton-Green  (241 

U.  S.  613,  36  Sup.  Ct.  Bep. 

676    1202 

New  York  L.,  v.  Dunlevy   (241 

U.  S.  518,  36  Sup.  Ct.  Bep. 

613)    1140 

Insurance  Co.  of  N.  A.,  McCoach  ▼. 

(Mem.)    (241  U.  S.  674,  36 

.  Sup.  Ct.  Rep.  724)    1231 

Inter-Island  Steam  Nav.  Co.  ▼.  Byrne 

(239  U.  S.  450,  36  Sup.  Ct. 

Bep.   132)     382 

International  Steam  Pump  Co.,  Lewis 

V.   (Mem.)    1232 

Interstate  Amusement   Co.  t.  Albert 

(239  U.  S.  560,  36  Sup.  Ct. 

Bep.   168)    439 

Iowa  Washing  Macb.  Co.,  Ward  &  Co. 

V.   (Mem.)    1234 


J. 


Jackson  Co.,  Bowditch  v.   (Mem.)    ..     474 
Gardiner  Invest.  Co.  v.  (Mem.)     476 
Jackson- Walker  Coal  &  Material  Co.  v. 

New  Hampshire  Sav.  Bank 

(240   U.   S.   617,   36   Sup. 

Ct.  Bep.  409)    828 

Jacobs  ▼.  Southern  B.  Co.   (241  U.  S. 

229,  36  Sup.  a.  Bep.  588)     970 
Jacoby  ft  Co.,  Pennsylvania  B.  Co.  v. 

(Mem.)     476 

James,  (dement  v.    (Mem.)    1225 

Jersey  City,  Wells  F.  k  Co.  v.  (Mem.) 

485,  1224 
Jimmerson  t.   United   States  ex   rel. 

Fall      City     Constr.     Co. 

(Mem.)    (239  U.  S.  641,  36 

Sup.  Ct.  Bep.  163)    

Jin  Fuey  Moy,  United  States  ▼.  .... 
John  Deere  Plow  (^.  v.  Mowry  (Mem.) 

(239  U.  S.  652,  36  Sup.  Ct. 

Bep.  160)    

Johnson  ▼.  Fargo.     See  Johnson  v. 

Tatlob. 
▼.  Louisville      Woolen      Mills 

(Mem.)    (241  U.  S.  665,  36 

Sup.  Ct.  Bep.  549)    1228 

T.  Biddle    (240   U.  S.  467,  36 

Sup.  Ct  Bep.  393)    752 

▼.  Boot  Mfg.  Co.  (241  U.  S.  160, 

36  Sup.  Ct.  Bep.  520)   934 

T.  Taylor    (239  U.  S.  234,  36 

Sup.  Ct.  Bep.  62)  243 

16 


482 
1061 


487 


Johnson  ▼.  Wells  F.  ft  Co.  (239  U.  & 

234,  36  Sup.  Ct  Bep.  62)     24S 

Williams  t 3M 

Jones,  Kansas  City  Southem  B.  Co.  ▼.  94S 
Jones  Nat.  Bank  ▼.  Ymtes  (240  U.  S. 

541,  36  Sop.  a.  Bep.  429)  788 
Judge  T.  Powers  (MeoL)    (241  U.  S. 

686,  36  Sup.  Ct  Bep.  449)  1236 
JudMA  T.  Nash   (Mem.)    (241  U.  S. 

689,  36  Sup.  Ct  Bep.  549)  1237 


Kanawha  ft  M.  B.  Co.  v.  Kerse  (289 
U.  S.  576,  36  Sup.  Ct.  Bep. 
174)  

Kansas  City,  St.  Louis  ft  K.  C.  Land 

Co.  V 

Stewart  ▼ 

Kansas  City  ft  Lb  Boalevard  Boad 
Dist,  Embree  v 

Kansas  City,  Ft.  S.  ft  M.  B.  Co.  ▼. 
Botkin  (240  U.  S.  227,  36 
Sup.  Ct.  Bep.  261)    

Kansas  City,  M.  ft  0.  B.  Co.  t.  Texas 
(Mem.)  (241  U.  S.  650,  86 
Sup.  Ct  Bep.  553)        

Kansas  City  Southern  B.  Co.  v.  Guard- 
ian Trust  Co.    (240  U.  S. 
166,  36  Sup.  Ct.  Bep.  384) 
T.  Jones  (241  U.  a  181,  36  Sup. 

Ct  Bep.  518)    

▼.  Public  Service  Commission 
(Mem.)  (239  U.  S.  655,  36 
Sup.  Ct.  Bep.  167)    

Kansas  City  Western  B.  Co.  v.  Mc^ 
Adow  (240  U.  S.  51,  86 
Sup.  Ct  Bep.  252)    

Kathleoi  Oil  Co.,  Lancaster  v 

Kauflinan,  Dunham  v.  (Mem.)   

Elearsarge  Land  Co.,  von  Baumbach 
V.   (Mem.)    

Kehnast,  First  Nat  Bank  v.   (Mem.) 

Kelly,  Chesapeake  ft  0.  B.  Co.  v 

V.  Griffin  (241  U.  S.  6,  86  Sup. 
Ct  Bep.  487)  

Kennedy,  New  York  ez  rd.,  v.  Becker 
(241  U.  S.  556,  86  Sup.  Ct. 
Bep.  705)    

Kenney,  Seaboard  Air  Line  B.  Co.  ▼. 

Kentucky,  Craig  v.  (Mem.)    

Deaton  v.  (Mem.)  

Provident  Sav.  Idle  Assur.  Soc 


V. 


Kern,  Brady  v.  (Mem.)   

Kerse,  Kanawha  ft  M.  B.  Co.  ▼ 

Keyser  v.  Milton  (Mem.)    (241  U.  8. 

661,  36  Sup.  Ct  Bep.  448) 
KUlmer  y*  Stewart  (Mem.)    (239  U. 

8.   653,  36   Sup.   Ct   Bep. 

161)     

King  County,  Christianscm  v 

Kinkead,  Baeon  ft  Sons  v.  (Mem.)  . . 


448 

1072 
120 

624 


617 
1221 

679 
948 

488 


520 
1161 
1222 

483 
1223 
1117 

861 


1166 

762 

1288 

1235 

167 
483 
448 

1226 


487 

827 

1284 


CASS8  RBRfSISD. 


Kinnear,  Washington  Dredging  ft 
Improv.  Co.  ▼.  (Mem.)    .. 

Kinnej  t.  Plymouth  Rock  Squab  Co. 
(Mem.)  (241  U.  8.  653,  36 
Sup.  Ct.  Rep.  723)    

Kitchens  t.  Hamilton  (Mem.)  (239 
U.  8.  637,  241  U.  S.  638, 
36  Sup.  Ct.  Rep.  446)  480, 

Knapp,  Great  Northern  R.  Co.  t.  .... 

Koennecke,  Seaboard  Air  Line  R.  Co. 


▼. 


Kutz,  Terminal  Taxicab  Co.  ▼• 


•  •  •  •  • 


477 


1223 


1215 
745 

324 
984 


La    Compafiia    General    de    Tabaeos, 

M(mtelibano  7  Ramos  ▼.  . . 

Laird,  Thrift  ▼.  (Mem.)   

Lake  Shore  ft  M.  8.  R.  Co.,  United 

States  ▼.  (Mem.)   

Lamar,  Ex  parte  (Mem.)    (241  U.  8. 

643,  36  Sup.  Ct.  Rep.  — ) 
▼.  United  States  (240  U.  8.  60, 

36  Sup.  Ct.  Rep.  255)    

T.  United  States  (241  U.  8. 103, 

36  Sup.  Ct.  Rep.  535)   

La   Mere,   Railway   Transfer   Co.    ▼. 

(Mem.)     

Lancaster  ▼.  Kathleen  Oil  Co.  (241  U. 

8.   551,  36   Sup.   Ct   Rep. 

711)     

T.  Thacker  (Mem.)    (239  U.  S. 

625,  36  Sup.  CH;.  Rep.  162) 

Lane,  Diener  y.  (Mem.)    

United  States  ex  rel.  Arant  ▼. 

(Mem.)     

▼.  United  States  ex  rel.  Micka- 

diet  (241  U.  8.  201,  36  Sup. 

Ct.   Rep.  539)    

Larabee  Flour  Mills  Co.,  Missouri  P. 

R.  Co.  V.  (Mem.)   

Larkin,  Hagan  ▼.  (Mem.)    

La  Roque  ▼.  United  SUtes  (239  U.  8. 

62,  36  Sup.  Ct.  Rep.  22) 
Latta  ft  T.  Constr.  Co.  ▼.  The  Raith- 

moor    (241   U.  8.   166,   36 

Sup.  Ct.  Rep.  514)    

Lawson,  Halifax  Tonopah  Min.  Co.  t. 

(Mem.)     

▼.  Louisiana  (Mem.)  (241  U.  8. 

692,  36  Sup.  Ct.  Rep.  722) 
Layne  ft  B.  Co.,  American  Well  Works 

Leamer,  O'Neill  v 

Lee,     Coon     Rapids    Nat    Bank    ▼. 

(Mem.)     

Lehigh  ft  W.  Coal  Co.  ▼.  Hartford  ft 

N.  Y.  Transp.  Co.  (Mem.) 

(241   U.   8.   675,   36   Sup. 

Ct.  Rep.  725)    

Ldiigh  Valley  R.  Co.,  Loomis  ▼.  .... 

Leser,  Wagner  ▼ 

•0  I«.  cd. 


1099 
1238 

1238 

1217 

526 

912 

486 

1161 

473 

477 

1233 

956 

1220 
1236 

147 

937 

477 

1238 

987 
249 

489 


1232 
517 
230 


Lerindale  Lead  ft  Zinc  Min.  Co.  t. 
Coleman  (241  U.  8.  432,  36 
Sup.  Ct.  Rep.  644)    

Lewis  ▼.  Holmes  (Mem.)    (239  U.  8. 

639,  36  Sup.  Ct  Rep.  160) 

T.  International    Steam    Pump 

Co.  (Mem.)   (241  U.  8.  676, 

36  Sup.  Ct  Rep.  725)  .... 

Pacific  Live  Stock  Co.  ▼ 

Lincoln  t.  Power  (Man.)    (241  U.  8. 

651,  36  Sup.  Ct.  Rep.  721) 
Lindsay  t.  Chicago,  B.  ft  Q.  R.  Co. 

(Mem.)  (241  U.  8.  678,  36 
Sup.  Ct.  Rep.  727)    

Line,  Pendleton  t.  (Mem.) 

Little,  Tanner  ▼ 

Little  River  Drainage  Dist.,  Houck 
▼ 

Lloyd,  Southern  R.  Co.  t 

Long  ▼.  Shepard   (Mem.)    (241  U.  8. 

652,  36  Sup.  Ct.  Rep.  722) 
Long  Bell  Lumber  Co.  v.  Moses  (Mem.) 

(239   U.   8.   625.   36   Sup. 

Ct  Rep.   162)    

Loomis  ▼.  Lehigh  Valley  R.  Co.  (240 
U.  S.  43,  36  Sup.  Ct  Rep. 

228)   

Loth  T.  St  Louis  (Mem.)    (241  U.  8. 

683,  36  Sup.  Ct  Rep.  285) 

Louisiana,   United   States   ex  rel.,  ▼. 

Boarman    (Mem.)    (239  U. 

8.   641,   36   Sup.   Ct   Rep. 

163)     

Boulanger  V.   (Mem.) 

I>uval  V.  (Mem.)    

Lawson  V.  (Mem.) 

Maroun  ▼.   (Mem.)    

Louisville  ft  N.  R.  Co.,  Stewart  t.  . . 
V.  Stewart   (241  U.  8.  261,  36 

Sup.  Ct.  Rep.  586)    

Louisville  Woolen   Mills,  Johnson  ▼. 

(Mem.)     

Lovewell,  Hill  ▼.   (Mem.)    

Lueders  ft  Co.,   Central  Trust 

Co.  V 

Lusk  ▼.  Botkin  (240  U.  8.  236,  36 
Sup.  Ct.  Rep.  263)    


M. 


McAdow,  Kansss  City  Western  R.  Co. 
V 

McAlester  Edwards  0>al  Co.  ▼.  Trapp 
(Mem.)  (239  U.  8.  651,  36 
Sup.  Ct  Rep.  159)    

MeCaiferty,  Mellon  Co.  ▼. 

McCall,  Heim  ▼ 

McChesney,  Home  Bond  Co.  ▼. 

McClelland  ▼.  Missouri,  K.  ft  T.  R.  Co. 
(Mem.)  (241  U.  S.  683,  36 

8up.  Ct.  Rep.  285)  

Rose  ▼.  (Mem.)  


1080 
481 


1232 
1084 

1222 


1233 

1232 

691 

266 
402 

1222 


473 

617 
1235 


482 
487 
474 
1238 
476 
989 

989 

1228 
483 

119 

621 


......... 


...... 


2 


620 


486 
181 
206 
444 


1286 
1229 


CASES  REPORTED. 


HeCoadi  ▼.  Insurance  Co.  of  N.  A. 

(Mem.)    (241  U.  S.  674,  36 

Sup.  a.  Rep.  724)    1231 

IfeComb  ▼.  Pennsylvania  (Mem.)  (239 

U.  8.  060,  36  Sup.  Ct.  Rep. 

169)     436 

McConnell,  New  York  C.  ft  H.  R.  R. 

Co.  V.   (Mem.)    478 

HeCoy,  Chi^g  Ah  Sui  v « 183 

McFarland  v.  American  Sugar  Ref.  Co. 

(241  U.  S.  79,  36  Sup.  Ct. 

Rep.  498)    899 

Maciel,  St.  Liouis  Southwestern  R.  Co. 

V.   (Mem.)    1226 

Mackenzie  v.  Hare  (239  U.  S.  299,  36 

Sup.  Ct.  Rep.  106)    297 

McLaughlin,   St.   Louis   Southwestern 

R.  Co.  V.   (Mem.)    1233 

Macon   County  Supply   Co.,   Tallulah 

Falls  R.  Co.  v.  (Mem.)  ..  1216 
Madison,  Southern  Wisconsin  R.  Co.  v.  739 
Maldonado  &  Co.  v.  New  York  &,  C. 

Mails.  S.  Co.  (Mem.)  (241 

U.  S.  680,  36  Sup.  Ct.  Rep. 

728) 1234 

Male  ▼.  Atchison,  T.  &  S.  F.  R.  Co. 

(240  U.  S.  97,  36  Sup.  Ct. 

Rep.   351)     644 

Manchester  v.  Water  Comrs.   (Mem.) 

(3  Cases)    (241  U.  S.  649, 

36  Sup.  Ct.  Rep.  552)  ...  1221 
Manhattan  R.  Co.,  Oundall  v.  (Mem.)  487 
Manila  Invest.  Co.  v.  Trammell   (239 

U.  S.  31,  36  Sup.  Ct.  Rep. 

12)     129 

Marconi  Wireless  Teleg.  Co.  v.  Simon 

(Mem.)    (241  U.  S.  676,  36 

Sup.  a.  Rep.  726)    1232 

Maroun  ▼.  Louisiana  (Mem.)    (239  U. 

S.   630,  36   Sup.   Ct.   Rep. 

166)     476 

Martin    ▼.    Commercial    Nat.    Bank 

(Mem.)    (241  U.  S.  662,  36 

Sup.  Ct.  Rep.  449)    1227 

Maryland,  EUcan  V.  (Mem.)    478 

Maryland  Dredging  &  Contracting  Co. 

V.  United  States  (241  U.  S. 

184,  36  Sup.  Ct.  Rep.  646)  946 
Masland,  Du  Pont  de  Nemours  Pow- 
der Co.  ▼.  (Mem.) 484 

Mason  ft  H.  Co.  ▼.  Sharon    (Mem.) 

(241  U.  S.  670,  36  Sup.  Ct. 

Rep.  664)    1280 

Maaaaehusetts,  Callaghan  v.  (Mem.)  1229 
Maasaohusetts  Bonding  ft  Ins.  Ck>.  ▼. 

Realty  Trust  Co.    (Mem.) 

(241  U.  S.  687,  36  Sup.  Ct. 

Rep.  461)    1237 

Massingale,  Cincinnati,  N.  0.  ft  T.  P. 

R.  Co.  T.  (Mem.)   1239 

Meaford  Transp.  Co.,  Hawgood  ft  A. 

Transit  Co.  ▼.  (Mem.)  ..  1234 
Medina  Valley  Irrig.  Co.,  Seekaiz  ▼. 

(M«n.)     1219 

IB 


Meers  v.  Childers  (Mem.)    (241  U.  8. 

663,  36  Sup.  Ct.  Rep.  460)   1227 

Meese,  Northern  P.  R.  Co.  v 467 

Mellon,  St.  Louis  Union  Trust  Co.  ▼. 

(Mem.)     486 

St.  Louis  Unicm  Trust  Co.  v. 

(Mem.)     1226 

Mellon  Co.  t.  McCafferty   (239  U.  S. 

134,  36  Sup.  Ct.  Rep.  94)  181 
Menasha  Paper  Co.  v.  Chicago  ft  N.  W. 

R.   Co.    (241   U.  S.  56,  36 

Sup.  Ct.  Rep.  501 )    886 

Merriam  Co.  v.  Saalfidd    (241  U.  S. 

22,  36  Sup.  Ct.  Rep.  477)  868 
Merrill-Rackgaber  Co.  v.  United  Stat^ 

(241  U.  S.  387,  36  Sup.  Ct. 

Rep.   662)     1058 

Messina,  Illinois  C.  R.  Co.  v 700 

Metcalf,  Hanover  Star  Mill.  Co.  v.  . .     713 

Michigan,  Brazee  v 1034 

Michigan    R.    Commission,   Detroit   ft 

M.  R.  Co.  V 802 

Mickadiet,  United  States  ex  rel.,  Lane 

V.   (241  U.  S.  201,  36  Sup. 

Ct.  Rep.  599)    .966 

Uniler  V.  Strahl    (239  U.  S.  426,  36 

Sup.  a.  Rep.  147 )    364 

Mills,  Idaho  use  of,  American  Surety 

Co.  V.    (241  U.  S.  690,  36 

Sup.  Ct.  Rep.  553)   1287 

Milton,  Keyser  t.  (Mem.)    1226 

Mims,  Supreme  Lodge,  K.  P.  v 1179 

Miner  v.  Symington  Co.  (Mem.)    (241 

U.  S.  674,  36  Sup.  Ct.  Rep. 

725)     1231 

Minneapolis  ft  St.  L.  R.  Co.  v.  Bom- 

holis    (241    U.   S.   211,   36 

Sup.  Ct.  Rep.  596)    961 

Minneapolis,  St.  P.  ft  S.  Ste.  M.  R. 

Co.   v.   Alexander    (Mem.) 

(239  U.  S.  635,  30  Sup.  Ci. 

Rep.   283)    479 

Mississippi  River  Commission,  Cubbins 

V 1041 

Cubbins  V.   (Mem.)    1238 

Missouri  ▼.  Chicago,  B.  ft  Q.  R.  Co. 

(241  U.  S.  633,  36  Sup.  Ct. 

Rep.  716)    1148 

Missouri  ex  rel.  St.  Louis,  Missouri  P. 

R.  Co.  V.  (Mem.)    488 

Missouri,  K.  ft  T.  R.  Co.,  McClelland 

V.   (Mem.)    1236 

▼•  Public    Service    Commission 

(Mem.)    (239  U.  S.  666,  36 

Sup.  Ct.  Rep.  167)    488 

Missouri  P.  R.  Co.  v.  Larabee  Flour 

Mills  Co.   (Mem.)    (241  U. 

S.   649,   36    Sup.   Ct.   R'ep. 

652)     1220 

V.  Missouri    ex    rel.    St.    Louis 

(Mem.)    (239  U.  S.  667,  36 

Sup.  C^.  Rep.  167>    48S 


CA8E8  REPORTED. 


MisBouri  P.  R.  Co.  ▼.  Public  Service 
Commission  (Mem.)  (239 
U.  8.  656,  36  Sup.  Ct.  Rep. 

167)     488 

MlsMmri  State  Lb  Ins.  Co.,  Stine  v. 

(Mem.)     1217 

Mitchell,  Hitchman  Coal  ft  Coke  Co. 

V.    (Mem.)     1218 

Monadnock   Mills  ▼.   Fushcy    (Mem.) 
(241    U.    S.    666,   36    Sup. 

Ct.  Rep.  561)    1228 

Monroig,  Parker  v 159 

Montelibano  v  Ramos  v.  La  Compafiia 
General  de  Tabacos  (241  U. 
S.   456,   36   Sup.   Ct   Rep. 

617)     1099 

Montgomery  v.  Bottlers  Seal  Co. 
\Mem.)    (239  U.  S.  638,  36 

Sup.  Ct.  Rep.  160)    481 

Moody  Y.  Century  Sav.  Bank  (239  U. 
S.   374,   36   Sup.   Ct.    Rep. 

Ill)     336 

Moorhead,  American  Rotary  Valve  Co. 

V.   (Mem.)    482 

Morgan,  Virginia  V.  (Mem.)   487 

Ward  V.   (Mem.)    485 

Morley  v.  Fewel   (Mem.)    (239  U.  S. 

657,  36  Sup.  Ct.  Rep.  167)     488 

Morris,  Greenlees  V.  (Mem.)   474 

Morris  Canal  ft  Bkg.  Co.  v.  Baird 
(239  U.  S.  126,  36  Sup.  Ct 

Rep.  28)   177 

Morrison,  United  States  v 599 

I.oser,  United  States  v.    (Mem.)    .,.     489 
Moses,    Long    Bell    Lumber    Co.    v. 

(Mem.)     473 

Moss  T.  Ramey  (239  U.  S.  538,  36  Sup. 

Ct.   Rep.   183)    425 

Motion  Picture  Patents  Co.,  Ex  parte 
(Mem.)    (241  U.  S.  691,  36 

Sup.  Ct.  Rep.  654)    1238 

Motlow   ▼.   Tennessee  (Mem.)  (239 U.S. 

663,  36  Sup.  Ct.  Rep.  161)     487 
Moulden  v.  Parlin  ft  0.  Implement  Co. 
(Mem.)    (241  U.  8.  669,  36 

Sup.  Ct.  Rep.  553)    1230 

Moun  Day  ▼.  United  States   (Mem.) 
(239  U.  S.  646,  36  Sup.  Ct 

Rep.  167)    484 

Mounts,  St.  Louis  ft  S.  F.  R.  Co.  v. 

(Mem.)     1228 

Mt   Vcmon-Woodberry   Cotton   Duck 

Co.  ▼.  Alabama  Interstate 

Power  Co.   (240  U.  S.  80, 

36  Sup.  Ct.  Rep.  234)   ....     607 

Mowry,    John    Deere    Plow    Co.    v. 

(Mem.)     487 

Mraz,  Valley  S.  S.  Co.  v.   (Mem.)    ..   1217 
Mudge  ▼.  Black,  Sheridan  ft  Wilson 
(Mem.)    (230  U.  S.  642,  36 

Sup.  Ct.  Rep.  163)    482 

Mulcare  ▼.  Chicago   (Mem.)    (241  U. 
8.   660,   36   Sup.   Ct.   Rep. 

553)     1221 

Mulet,  Falco  ▼.  (Mem.)   1210 

•0  L.  ed. 


Hurray,  Carolina  Glass  Co.  ▼ 

▼.  Post  Pub.  Co.   (Mem.)    (241 

U.  S.  675,  36  Sup.  Ct.  Rep. 

725) 1282 

Mutual  L.  Ins.   Co.  ▼.  Hilton-Green 

(241  U.  8.  613,  36  Sup.  Ct. 

Rep.  676)    ' 1202 

Mutual  Light,  Heat  ft  P.  Co.,  Glen- 
wood  Light  ft  Water  Co.  t.    174 
Myles  Salt  Co.   V.   Iberia  ft   St   M. 

Drainage  Dist.   (289  U.  8. 

478,  36  Sup.  Ct  Rep.  204)     802 

Nash,  Judson  t.    (Mem.)    1237 

National  Bank  v.  Shackelford  (239  U. 

S.  81,  36  Sup.  Ct  Rep.  17 )     158 
National  Bank  of  Commerce  v.  Allen 
(Mem.)    (230  U.  8.  642,  36 

Sup.  Ct.  Rep.  163)    482 

▼.  Equitable  Trust  Co.  (Mem.) 
(239  U.  8.  648,  36  Sup.  Ct 

Rep.   221)    485 

Russo-Chinese  Bank  v 1065 

▼.  United  States  (Mem.)    (241 

U.  8.  668,  36  Sup.  Ct.  Rep. 

287)    1225 

Nati(mal  Brake  ft  Electric  Co.  ▼.  Chris- 

tensen   (Mem.)    (241  U.  8. 

659,  36  Sup.  Ct  Rep.  447)   1225 
National  Carbon  Co.   v.   Ohio  Motor 

Car  Co.  (Mem.)   (241  U.  8. 

673,  36  Sup.  a.  Rep.  724)   1231 
National   Fireproofing  Co.,  Crutchley 

V.   (Mem.)    1228 

National  Metal  Molding  Co.,  Tubular 

Woven      Fabric      Co.      v. 

(Mem.)   1227 

National     Surety     Co.,     Brogan     v. 

(Mem.)    1230 

▼.  United    States   use   of   Hol- 

linger   (Mem.)    (241  U.  8. 

687,  36  Sup.  Ct.  Rep.  460)   1236 
Nelson  v.  Wood    (Mem.)    (239  U.  8. 

637,  241  U.  S.  637,  36  Sup. 

Ct  Rep.  446)    480,  1215 

Newell,  Glass  v.    (Mem.)    1219 

New  England  Teleg.  Co.,  Essex  v.  . . .     301 
New   Hampshire   Sav.    Bank,    Haines 

Tile  ft  Mantel  Co.  v 828 

Jackson -Walker  CobI  ft  Material 

Co.  V 828 

Vamer  v.  828 

New    Orleans    v.    Penn    Bridge    Co. 

(Mem.)    (239  U.  S.  639,  36 

Sup.  Ct.  Rep.  160)    481 

New  Orleans-Belize  Royal  Mail  ft  C. 

A.  S.  8.  Co.  V.  United  SUtes 

(239  U.  8.  202,  36  Sup.  Ct. 

Rep.  76)    227 

New  South  Farm  ft  Home  Ca,  United 

States  V 800 

New  York  ex  rel.  Kennedy  ▼.  Becker 

(241  U.  8.  556,  86  Sup.  Ct. 

Rep.  705)    WW 

\% 


0A8B8  BEPOBTBD. 


lf«w  York,  Crane  ▼ 218 

▼.  Sage  (239  U.  8.  67,  86  Sup. 

Ct.  Rep.  25)    143 

Kew  York  &  C.  Mail  S.  S.  Ck>.,  Mai- 

donado  &  Co.  v.  (Mem.) . .  1234 
New  York  ft  P.  R.  8.  S.  Co.,  United 

States  V 161 

Kew  York  C.  ft  H.  R.  R.  Co.  ▼.  Gray 

(239  U.  S.  583,  36  Sup.  Ct 

Rep.  176)    451 

T.  MoConnell   (Mem.)    (239  U. 

S.   633,  36   Sup.   Ct.   Rep. 

220)     478 

New  York  L.  Ins.  Co.  ▼.  Dunlevy  (241 

U.  S.  518,  36  Sup.  Ct.  Rep. 

613)     1140 

New  York,  N.  H.  ft  H.  R.  Co.,  York 

ft  \y.  Co.  V.   (Mem.)    477 

New  York,  P.  ft  N.  R.  Co.,  Baugham 

▼ 977 

▼.  Peninsula      Produce      Exch. 

(240    U.    S.    34,    36    Sup. 

Ct.  Rep.  230)    511 

New  York   Scaffolding  Co.,   Whitney 

T.  (Mem.)    482 

Nice,  United  SUtes  t 1192 

Nisbet    y.    Federal    Title    ft    T.    Co. 

(Man.)     (241    U.    S.    669, 

36  Sup.  Ct  Rep.  553) 1229 

Noel,  Quincy,  0.  ft  El.  C.  R.  Co.  t. 

(Mem.)     486 

Normile,  United  States  ▼ 319 

T.  United    States    (239    U.    S. 

344,  36  Sup.  Ct.  Rep.  122) 
North  Carolina  v.  Tennessee  (240  U. 

S.   652,  36   Sup.   Ct   Rep. 

604)     

North  Dakota,  Armour  ft  Co.  t.   ... 
Northern    Exp.    Co.    ▼.    Washington 

(Mem.)     (241    U.    S.    686, 

36  Sup.  Ct  Rep.  449)    ...  1236 

Northern  P.  R.  Co.,  Barlow  v 760 

▼.  Classen    (36   Sup.   Ct.   Rep. 

158)     342 

▼.  Coneannon,   239   U.   S.   382, 

36   Sup.    Ct.   Rep.    156)..     842 
▼.  Meese    (289   U.   S.   614,   36 

Sup.  Ct.  Rep.  223) 467 

V.    Shade    (86    Sup.    Ct   Rep. 

158)     842 

▼.  Wall  (241  U.  S.  87,  36  Sup. 

Ct.  Rep.  493)    ....: 905 

Northern  Trust  S.  D.  Co.,   Borland 

T.    (Mem.)    1225 

Northwestern  Laundry  ▼.  Des  Moines 

(239  U.  S.  486,  86  Sup.  a. 

Bep.  206) 396 

Norton  ▼.  Whiteside   (239  U.  S.  144, 

36  Sup.  Ct.  Bep.  97)    186 

Noiaseme  Hosiery  Co.,  Straus  ▼.  ••        590 


819 


847 
771 


0. 


Ohio  ax  rel.  Davis  ▼.  Hilderbrant 
(241  U.  S.  565,  36  Sup.  Ct 
Rep.    708)     1172 

Ohio  Motor  Car  Co.,  National  Car- 
bon Ck>.  T.   (Mem.)    1281 

CKeefe  ▼.  United  States   (240  U.  S. 

294,  36  Sup.  Ct  Rep.  318)     661 

Oklahoma,  Indian  Territory  Illumi- 
nating Oil  Co.  V 779 

Southern  Surety  Co.  t 1187 

OliTer  ▼.  United  States  (Mem.)  (241 
U.  8.  670,  36  Sup.  Ct.  Rep. 
721)     1230 

CNeiU  y.  Leamer  (239  U.  S.  244,  36 

Sup.  Ct.  Rep.  54)    249 

Oregon-Washington  R.  ft  Nay.  Co.  v. 
Pfeiffer  (Mem.)  (239  U.  S. 
658,  36  Sup.  Ct  Rep.  222)     489 

Osbom,  Andrews  y.    (Mem.)    475 

Dodge    y 557 

Osborne  v.  Gray    (241  U.   S.   16,  36 

Sup.  Ct  Rep.  486)    865 

Otis    Elevator    Co.,    Fuller    Co.    v. 

(Mem.)     1228 

Otos,  Great  Northern  R.  Co.  v 822 

Overton  v.  United  States  (Mem.) 
(239  U.  S.  658,  36  Sup.  Ct. 
Rep.  220)    489 

Ozark  Oil   Co.   v.   Berryhill    (Mem.) 
(239   U.   S.   655,  86   Sup. 
Ct  Rep.  165)    487 


P. 


Pacific  Coast  Coal  Co.,  Brown  v.  ....  1177 

Pacific  Exp.  Co.,  Rosenberger  v 880 

Pacific  Live  Stock  Co.  v.  Lewis  (241 

U.  S.  440,  36  Sup.  Ct.  Rep. 

637)     1084 

Pacific  Mail  S.  S.  Co.  v.  Schmidt  (241 

U.  S.  245,  36  Sup.  Ct.  Rep. 

581)     982 

Pagano,  Cerri  v.   (Mem.)    1239 

Palmer  v.  Gromer  (Mem.)   (239  U.  S. 

657,  36  Sup.  Ct.  Rep.  219)  488 
Park,  Farmers  ft  M.  State  Bank  v. 

(Mem.)     1218 

Parker  v.  Monroig  (239  U.  8.  88,  36 

Sup.  Ct.  Bep.  42)    150 

Parker  V.  (Mem.)    483 

V.  Parker   (Mem.)    (239  U.  S. 

643,  36  Sup.  Ct  Bep.  164)  483 
Parlin  ft  O.  Implement  Co.,  Moulden 

v.  (Mem.)    1280 

Peabody,     Washington     ez     rel.,     v. 

Seattle  (Mem.)   (239  U.  8. 

659,  36  Sup.  Ct  Bep.  — )  489 
Pease  v.   Bathbun-Jones   Engineering 

Ck>.  (Mem.)   (241  U.  S.  659, 

86  Sup.  Ct  Bep.  448)   1226 


CASES  REPORTED. 


T.   Rathbun-Jones   Engineering 

Co.     (Mem.)     (241    U.    S. 

665,  36  Sup.  Ct.  Rep.  551) 
Pecos  k  N.  T.  R.  Co.  v.  Rosenbloom 

(240  U.  S.  439,  36  Sup.  Ct. 

Rep.   390)     

Peeler,  United  States  use  of,  Illinois 

Surety  Co.  v.    (240  U.   S. 

214,  36  Sup.  Ct.  Rep.  321) 
Pelton,  Illinois  C.  R.  Co.  t.  (Mem.) 
Pendleton  v.  Line  (Mem.)    (241  U.  S. 

677,  36  Sup.  Ct.  Rep.  726) 
Peninsula  Produce  Exch.,  New  York, 

X .  ft  rw .  xv.  \jO,  y 

Penn    Bridge    Co.,    New    Orleans    ▼. 

(Mem.)     

Pennsylvania,  Fidelity  ft  D.  Co.  t.  . . 

McComb  ▼.  (Mem.)    

Pennsylvania   Co.   v.   Donat    (239   U. 

S.  50,  36  Sup.  Ct.  Rep.  4) 
Pennsylvania  R.  Co.  v.  Jacoby  ft  Co. 

(Mem.)     (239   U.    S.    631, 

36  Sup.  Ct.  Rep.   166)    .. 
T.  Setera    (Mem.)     (241   U.   S. 

691,  36  Sup.  Ct.  Rep.  721) 

Perry,  Butler  v 

Peterborough  R.  Co.  v.  Boston  ft  M. 

R.  Co.   (Mem.)    (239  U.  S. 

627,  36  Sup.  Ct.  Rep.  164) 
Pfeiffer,  Oregon-Washington  R.  ft  Nav. 

Co.  V.    (Mem.)    

Philadelphia    ft    R.    Coal    ft    I.    Co., 

Donald  v 

Philadelphia  ft  R.  R.  Co.,  Reese  v... 
v.  United    States    (240    U.    S. 

334,  ie  Sup.  Ct.  Rep.  354) 

Whalley  V.  (Mem.)    

Philipo,  Scott  V.    (Mem.)    

Philips,  Ck)llins  v.   (Mem.)    

Phoenix  R.  Co.  v.  Geary    (239  U.   8. 

277,  36  Sup.  Ct.  Rep.  46) 
Pieper,    White    Dental    Mfg.    Co.    v. 

(Mem.)     

White     Dental     Mfg.     Co.     v. 

( Mem. )     

Pinel,  Pinel  v.    

v.  Pinel  (240  V.  S.  594,  36  Sup. 

Ct.  Rep.  416)    

Pitney  v.  Washington  (240  U.  S.  387, 

36  Sup.  Ct.  Rep.  385).... 
Pittsburgh   Water  Heater   Co.,   Beler 

Water      Heater      Co.      v. 

(Mem.)     

Plymouth  Rock  Squab  Co.,  Kinney  t. 

( Mem. )     

Porter  ▼.  Wilson    (239  U.  S.  170,  36 

Sup.  Ct.  Rep.  91)    

Portland,  Postal  Teleg.  Co.  v.  (Mem.) 
Postal  Teleg.  Co.  v.  Portland  (Mem.) 

(241  U.  S.  693,  36  Sup.  Ct. 

Rep.  726)  

Post  Pub.  Co.,  Murray  v.  (Mem.)  .. 

Power,  Lincoln  v.  (Mem. )  

Powers,  Judgs  ▼.  (Mem.)  

•0  li.  cd. 


1228 
730 

609 

488 

1232 

611 

481 
664 
486 

139 

476 

1238 
672 

474 

489 

1027 
384 

675 
1237 

489 
1235 

287 

484 

1237 
817 

817 

703 

1229 

1223 

204 
1239 


1239 
1232 
1222 
1236 


Prescott,  Southern  R.  Co.  ▼ 

Press   Pub.   Co.   v.    Gillette    (Mem.) 
(241   U.   6.   661,   86   Sup. 

Ct.  Rep.  448)    

ProfRtt,  Chesapeake  ft  O.  R.  Co.  t.  . . 

Provident    Sav.    Life   Assur.    Soa    t. 

Kentucky   (239  U.  S.  108, 

36  Sup.  Ct.  Rep.  34)    

Provo  Bench   Canal  ft   Irrig.   Co.  t. 
Tanner  (239  U.  S.  323,  86 

Sup.  Ct.  Rep.  101)    

Prowski,  Erie  R.  Co.  v.   (Mem.)    .... 

Pryor,  Bishop  v.  (Mem.)    

Public  Service  Commission,  Atchison, 

T.  ft  S.  F.  R.  Co.  V.  (Mem.) 

Chicago  ft  A.  R.  Co.  v.  (Mem.) 

Chicago,    B.    ft    Q.    R.    Ca    ▼. 

(Mem.)     

Chicago,  M.  ft  St.  P.  R.  Co.  t. 

(Mem.)     

Chicago,  R.  I.  ft  P.  R.  Co.  v. 

(Mem.)     

Kansas   City   Southern  R.   Co. 

▼.   (Mem.)    

Missouri,    K.   ft   T.   R.   Co.   t. 

( Mem. )     

Missouri  P.  R.  Co.  v.    (Mem.) 
St.    Ix)ui8   ft   S.    F.   R.   Co.   V. 

(Mem.)     

St.   Louis,  I.  M.  ft  S.  R.   Co. 

V.   (Mem.)    

St.  Louis,  K.  C.  ft  C.  R.  Co. 

V.   (Mem.)    

St.  Louis  Southwestern  R.  Co. 

V.   ( Mem. )    

Purcell  V.  Quaker  Realty  Co.  (Mem.) 
(239  U.  S.  635,  36  Sup.  Ct. 
Rep.   283)     


Q. 


Quaker  Realty  Co.,  Purcell  ▼.  (Mem.)     479 
Quincy,  0.  ft  K.  C.   R.  Co.  v.   Noel 
(Mem.)     (239    U.    S.    652, 
36    Sup.    Ct.    Rep.    159)..     486 

Quifiones,  Cardona  v 538 

Quiver,  United  States  v 1196 


R 


Raich,   Truax  ▼ 181 

Railroad    Commission,    Seaboard    Air 

Line  R.  Co.  ▼ 

Railroad  Co.,  Atlantic  Coast  line,  v. 

Bumette    (239  U.   S.   199, 

36  Sup.  Ct.  Rep.  75) 

Aitlantic  Coast  Line,  ▼.  Gleni» 

(239'U.  S.  388,  36  Sup.  Ct. 

Rep.   154)    844 

Baltimore  ft  O.,  Fonts  ▼. 

(Mem.)  (239  U.  S.  63»,  86^ 

Sup.  Ct  Rep.  220)  478r 


1229 
1102 


167 

807 
1289 
1288 

488 
488 

488 

489 

488 

489 

488 
488 

488 

488 

488 

488 

479» 


999 


CASES  REPORTED. 


Railroad  Co.,  Baltimore  &  0.,  v.  Hos- 
tetter  (240  U.  S.  620,  86 
Sup.  Ct.  Rep.  475)   829 

Baltimore  k  0,,  Reed  v.  (Mem.) 
(289  U.  S.  640,  36  Sup.  Ct 
Rep.  160)   481 

Boeton  k  M.,  Peterborough  R. 
Co.  V.  (Mem.)    (239  U.  S. 
*  627,  36  Sup.  Ct  Rep.  164)     474 

Central,  ▼.  United  States 
(Mem.)  (241  U.  S.  668, 
36  Sup.  Ct  Rep.  446)   1226 

Chicago  k  A.,  t.  Public  Service 
Commission  (Mem.)  (239 
U.  S.  656,  36  Sup.  Ct.  Rep. 
167)     488 

Chicago  k  A.,  v.  Wagner  (239 
U.  S.  452,  36  Sup.  Ct.  Rep. 
136)     379 

Chicago,  B.  k  Q.,  v.  Harring- 
ton (241  U.  S.  177,  36  Sup. 
Ct.  Rep.  517)    941 

Chicago,  B.  k  Q.,  Lindsay  ▼. 
(Mem.)  (241  U.  S.  678,  36 
Sup.  Ct  Rep.  727)    1233 

Chicago,  B.  k  Q.,  Missouri  ▼. 
(241  U.  S.  533,  36  Sup.  Ct. 
Rep.  716)    1148 

Chicago,  B.  k  Q.,  ▼.  Public  Serv- 
ice Commission  (Mem.) 
(239  U.  S.  655,  36  Sup.  Ct 
Rep.  167)    488 

I>elaware,  L.  k  W.,  Shanks  v. 
(239  U.  S.  556,  36  Sup.  Ct. 
Rep.   188)    436 

Delaware,  L.  k  W.,  v.  Turkonis 
(Mem.)  (239  U.  S.  652,  36 
Sup.  Ct.  Rep.  160)    486 

Erie,  v.  Prowski  (Mem.)  (241 
U.  S.  686,  36  Sup.  Ct  Rep. 
447)     1236 

Illinois  C,  v.  Cousins  (Mem.) 
(241  U.  S.  641,  36  Sup.  Ct. 
Rep.  446)    1216 

Illinois  C,  v.  Messina  (240  U. 
S.  395,  36  Sup.  Ct  Rep. 
368)     709 

Illinois  C,  V.  Pelton  (Mem.) 
(239  U.  S.  655,  36  Sup.  Ct 
Rep.   166)    488 

Illinois  C,  V.  Skaggs  (240  U. 
S.  66,  36  Sup.  Ct.  Rep. 
249)     528 

Illinois  C,  V.  Slaughter  (Mem.) 
(239  U.  S.  651,  36  Sup.  Ct 
Rep.   169)     486 

Lehigh  Valley,  Loomis  v.   (240 
U.  S.  43,  36  Sup.  Ct.  Rep. 
.    228)     517 

Louisville  k  N.,  v.  Stewart  (241 
U.  S.  261,  36  Sup.  Ct.  Rep. 

586)     989 

33 


Railroad  Co.,  LouisvUle  k  N.,  Stewart 
V.  (241  U.  S.  261,  36  Sup. 
Ct  Rep.  586)    

Minneapolis  k  St  L.,  v.  Bom- 
bolU  (241  U.  S.  211,  36 
Sup.  Ct.  Rep.  595)    

Minneapolis,    St.    P.   k   S.   Ste 

M.,   V.   Alexander    (Mem.) 

(239   U.   S.   635,   36   Sup. 

Ct.  Rep.  283)    

New  York  C.  &  H.  R.  R.,  v. 
Gray  (239  U.  S.  583,  36 
Sup.  Ct.  Rep.  176)    

New  York  C.  &  H.  R.  R.,  v. 
McConnell  (Man.)  (239  U. 
S.  633,  36  Sup.  Ct.  Rep. 
220)     

New  York,  N.  H.  k  H.,  York  k 
W.  Co.  V.  (Mem.)  (239  U. 
S.  631,  36  Sup.  Ct  Rep. 
166)     

New  York,  P.  k  N.,  Baugham 
V.  (241  U.  S.  237,  36  Sup. 
Ct.  Rep.  592)    

New  York,  P.  k  N.,  v.  Penin- 
sula Produce  Exch.  (240  U. 
S.  34,  36  Sup.  Ct.  Rep. 
230)     

Oregon-Washington,  k  Nav.,  v. 
Pfeiffer  (Mem.)  (230  U.  S. 
658,  36  Sup.  Ct.  Rep.  222) 

Pennsylvania  v.  Jacoby  k  Co. 
(Mem.)  (239  U.  S.  631, 
36  Sup.  Ct.  Rep.  166) 

Pennsylvania,  v.  Setera  (Mem.) 
(241  U.  S.  69i;  36  Sup.  a. 
Rep.  721)    

Peterborough,  v.  Boston  k  M. 
R.  Co.  (Mem.)  (239  U.  S. 
627,  36  Sup.  Ct.  Rep.  164) 

Quincy,  0.  k  K.  C,  v.  Noel 
(Mem.)  (239  U.  S.  652,  36 
Sup.   Ct    Rep.    159)     

St.   Louis  k   S.   F.,   v.    Brovm 

(241  U.  S.  223,  36  Sup.  Ct. 

Rep.  602)    

St  Louis  k  S.  F.,  v.  Monts 
(Mem.)  (241  U.  S.  654, 
36  Sup.  Ct.  Rep.  726)   

St  Louis  k  S.  F.,  v.  Public  Serv- 
ive  Commission  (Mem.) 
(239  U.  S.  655,  36  Sup.  a. 
Rep.  167)    

St.  Louis  k  S.  F.,  v.  Shepherd 
(240  U.  S.  240,  36  Sup. 
Ct   Rep.   274)     

St  Louis,  K.  C.  k  C,  v.  Pub- 
lic Service  Commission 
(Mem.)  (239  U.  S.  655,  36 
Sup.  Ct.  Rep.  167 )    

Spokane  k  I.  E.,  Bradley  v. 
(Mem.)  (241  U.  S.  630,  36 
Sup.  Ct  Rep.  285)    


989 


961 


479 


451 


478 


477 


977 


511 


489 


476 


1238 


474 


486 


966 


1223 


488 


622 


488 


1215 


CASES  REPORTED. 


Bailroad   Co.,    Spokane    k   I.    E.,   ▼. 

Campbell    (241   U.   S.  407, 

36  Sup.  Ct.  Rep.  683)    1125 

Spokane    &    I.    E.,    v.    United 

States   (241  U.  S.  344,  36 

Sup.  Ct.  Rep.  668 )    1037 

Union  P.,  Brushaber  v.  (240  U. 

S.  1,  36  Sup.  Ct.  Rep.  236)  403 
Union    P.,    Frank    ▼.    (Mem.) 

(241  U.  S.  604,  36  Srp.  Ct. 

Rep.  728)    1230 

Union    P.,    v.    Zitnik    (Mem.) 

(230  U.  S.  650,  36  Sup.  Ct. 

Rep.  150)    486 

Vandalia,    v.    Stilwell     (Mem.) 

(230  U.  S.  637,  241  U.  S. 

638,  30  Sup.  Ct.  Rep.  445)     480 

1215 
Vandalia,     v.     United     States 

(Mem.)    (230  U.  S.  642,  36 

Sup.   a.   Rep.   163) 482 

Railway   Co.,   Atchison,   T.    k   S.    F., 

V.  Harold   (241  U,  S.  371, 

36  Sup.  Ct.  Rep.  665) 1050 

Atchison,  T.  k  S.   F.,  Male  v. 

(240  U.  S.  07,  36  Sup.  Ct. 

Rep.   351)     644 

Atchison,  T.  k  S.  F.,  v.  Pub- 
lic     Service      Conimiaaion 

(Mem.)    (230  U.  S.  655,  36 

Sup.  Ct.  Rep.  167 )    488 

Atchison,  T.  k  S.  F.,  v.  Swear- 

ingen    (230   U.   S.   330,   36 

Sup.  a.  Rep.  121)    317 

Atchison,  T.  k  S.  F.,  v.  United 

SUtes   (Mem.)    (230  U.  S. 

645,  36  Sup.  Ct.  Rep.  166)  483 
Carolina,  C.  k  0.,  Shewalter  v. 

(Mem.)    (230  U.  S.  630,  36 

Sup.   Ct.   Rep.   166 ) 476 

Chesapeake  k  #.,  v.  Camahan 

(241    U.    S.    241,    36    Sup. 

Ct.  Rep.  504)    070 

Chesapeake  k  O.,  v.   De  Atley 

(241    U.    S.    310,    36    Sup. 

Ct.   Hep.  564)    1016 

Oiesapeake    &    0.,    ▼.    Gainey, 

(241    U.    S.    404,    36    Sup.* 

a.   Rep.   033)     1124 

Chesapeake  k  0.,  v.  Kelly  (241 

U.  S.  485,  36  Sup.  Ct.  Rep. 

630)     1117 

Chesapeake    k    0.,    v.    Proffitt 

(241  U.  S.  462,  36  Sup.  Ct. 

Rep.   620)     1102 

Chicago    k    N.    W.,    v.    Bower 

(241  U.  S.  470,  36  Sup.  Ct. 

Rep.   624)     1107 

Chicago    k    N.    W.,    Menasha 

Paper   Co.    v.    (241    U.    S. 

55,  30  Sup.  Ct.  Rep.  501)  885 
Chicago  City,  Venner  v.  ( Mem. ) 

(239  U.  S.  657,  36  Sup.  Ct. 

Rep.   220)     488 

«0  Ii.  ed. 


Railway  Co.,  Chicago,  L.  S.  &  S.  B., 
Fellers  v.  (Mem.)  (241  U. 
S.    672,   36    Sup.    Ct.    Rep. 

723)     

Chicago,  M.  k  St.  P.,  v.  Pub- 
lic Service  Conunission 
(Mem.)  (230  U.  S.  655,  36 
Sup.   Ct.   Rep.    167) 

Chicago,  R.  I.  ft  P.,  v.  Bond 
(240  U.  S.  440,  36  Sup. 
Ct.  Rep.  403)  

Chicago,  R.  I.  &  P.,  v.  Devine 
(230  U.  S.  52,  36  Sup.  Ct. 
Rep.  27)    

CWcago,  R.  I.  k  P.,  V.  Pub- 
lic Service  Commission 
(Mem.)  (230  U.  S.  655,  36 
Sup.  Ct.  Rep.  167 )    

Chicago,  R.  I.  k  P.,  v.  White- 
aker  (230  U.  S.  421,  86 
Sup.  Ct.  Rep.  152)   

Chicago,  R.  I.  k  P.,  v.  Wright 
(230  U.  S.  548,  36  Sup.  Ct. 
Rep.   185)    

Cincinnati,  N.  O.  k  T.  P.,  Day- 
ton Coal  k  I.  Co.  V.  (230 
U.  S.  446,  36  Sup.  Ct.  Rep. 
137)     

Cincinnati,  N.  0.  k  T.  P.,  v. 
Massingale  ( Mem. )  ( 241 
U.  S.  603,  36  Sup.  Ct.  Rep. 

724)     

Cincinnati,   N.  O.  k  T.  P.,  v. 

Rankin  (241  U.  S.  310,  36 
Sup.  Ct.  Rep.  555)    

Cleveland,  C.  C.  k  St.  L.,  v. 
Dettlebach  (230  U.  S.  588, 
36  Sup.  Ct.  Rep.  177) 

Detroit  k  M.,  v.  Michigan  R. 
Commission  (240  U.  S.  564, 
36  Sup.  Ct.  Rep.  424) 

Georgia,  F.  k  A.,  ▼.  BHsh  Mill. 
Co.  (241  U.  S.  100,  36 
Sup.  Ct.  Rep.  541)    

Georgia  Southern  k  F.,  Town- 
send  V.  (Mem.)  (230  U.  S. 
643,  36  Sup.  Ct.  Rep.  164) 

Grand  Trunk,  v.  United  States 
(Mem.)  (241  U.  S.  681, 
36  Sup.  Ct.  Rep.  728)    ... 

Great  Northern,  v.  Knapp  (240 
U.  S.  464,  36  Sup.  Ct.  Rep. 
300)     

Great  Northern,  ▼.  Otos  (230 
U.  S.  340,  36  Sup.  Ct.  Rep. 
124)     

Great  Northern,  ▼.  Wiles  (240 
U.  S.  444,  36  Sup.  Ct.  Rep. 
406) 

Kanawha  k  M.,  ▼.  Kerse  (230 
U.  S.  576,  36  Sup.  Ct.  Rep. 
174)     


1231 


488 


735 


140 


488 


360 


431 


375 


1230 


1022 


453 


802 


048 


483 


1234 


745 


322 


732 


448 


CASES  REPORTED. 


Bailway  Co.»  Kansas  dtj,  Ft  S.  ft  M., 
T.  Botkin  (240  U.  8.  227, 
36  Sup.  Ct.  Rep.  261)  617 

Kansas  City,  M.  &  0.,  ▼.  Texas 
(Mem.)  (241  U.  S.'660,  86 
Sup.  Ct.  Rep.  653)    1221 

Kansas  City  Southern,  ▼.  Guard- 
ian Trust  Co.  (240  U.  S. 
166,  36  Sup.  Ct.  Rep.  334)     579 

Kansas  City  Southern,  v.  Jones, 
(241  U.  S.  181,  36  Sup.  Ct. 
Rep.  513)    043 

Kansss  City  Southern,  ▼.  Pub- 
lic     Senrice      Commission    ^ 
(Mem.)    (230  U.  S.  655,  36 
Sup.  Ct.  Rep.  167)    . .  .T. .     488 

Kansss  City  Western,  v.  Mc- 
Adow  (240  U.  S.  61,  36 
Sup.  Ct.  Rep.  252)    620 

Lake  Shore  ft  M.  S.,  United 
States  T.  (Mem.)  (241  U. 
S.  601,  36  Sup.  Ct.  Rep. 
721)     1238 

Manhattan,  Qundall  ▼.  (Mem.) 
(230  U.  S.  654,  36  Sup.  Ct. 
Rep.   162)     487 

Missouri,  K.  ft  T.,  McClelland 
▼.  (Mem.)  (241  U.  S.  683, 
36  Sup.  Ct.  Rep.  285)    ...  1235 

Missouri,  K.  ft  T.,  v.  Public  Serv- 
ice Commission )  ( Mem. ) 
(239  U.  S.  655,  36  Sup.  Ct. 
Rep.   16/)     488 

Missouri  P.,  v.  Larabee  Flour 
Mills  Co.  (Mem.)  (241  U. 
S.  640,  36  Sup.  Ct  Rep. 
552)     1220 

Missouri  P.,  ▼.  Missouri  ez  rel. 
St.  Louis  (Mem.)  (230  U. 
S.  667,  36  Sup.  Ct.  Rep. 
167)     488 

Missouri  P.,  t.  Public  Service 
Commission  (Mem.)  (230 
U.  S.  655,  36  Sup.  Ct.  Rep. 
167)     488 

Northern  P.,  Barlow  v.  (240  U. 
S.  484,  36  Sup.  Ct.  Rep. 
456)     760 

Northern    P.,    v.    Classen    (36 

Sup.  Ct.  Rep.  158)    342 

Northern  P.,  ▼.  Concannon  (230 
U.  S.  382,  36  Sup.  Ct.  Rep. 
166)     342 

Korthem  P.,  ▼.  Meese  (239  U. 
S.  614,  36  Sup.  Ct.  Rep. 
223)     467 

Northern  P.,  ▼.  Shade  (36  Sup. 

Ct  Rep.  158)    342 

Northern  P.,  ▼.  Wall  (241  U. 
S.  87,  36  Sup.  Ct  Rep. 
403)     005 

Pecos  ft  N.  T.,  ▼.  Rosenbloom 
(240  U.  S.  430,  36  Sup.  Ct 
Rep.  800)    780 


Railway  Co.,  Philadelphia  ft  R.,  Reese 
▼.  (280  U.'S.  463,  36  Sup. 
Ct  Rep.  184)    384 

Philadelphia  ft  R.,  ▼.  United 
States  (240  U.  S.  384,  36 
Sup.  Ct  Rep.  354)    675 

Philadelphia  ft  R.,  Whalley  ▼. 
(Mem.)  (241  U.  S.  680, 
36  Sup.  Ct.  Rep.  540) 1237 

Phoenix,  v.   Qeaxj    (230   U.   S. 

277,  36  Sup.  Ct  Rep.  45) . .     287 

Rio  Grande  Western,  ▼.  String- 
ham  (230  U.  S.  44,  36  Sup. 
Ct  Rep.  5)    136 

St.  Louis  ft  Suburban,  ▼.  St. 
Louis  (Mem.)  (241  U.  S. 
648,  36  Sup.  Ct  Rep.  550)   1220 

St.  Louis,  I.  M.  ft  S.,  V.  Arkan- 
sas (240  U.  S.  518,  36  Sup. 
Ct.   Rep.  443)    776 

St  Louis,  L  M.  ft  S.,  ▼.  Pub- 
lic Service  Commission 
(Mem.)  (230  U.  S.  655,  36 
Sup.  Ct.  Rep.  167 )    488 

St.  Louis,  I.  M.  ft  S.,  United 
States  V.  (Mem.)  (241  U. 
S.  603,  36  Sup.  Ct.  Rep. 
724)     • 1230 

St  Louis  Southwestern,  ▼. 
Maciel  (Mem.)  (241  U.  S. 
660,  36  Sup.  Ct.  Rep.  448)    1226 

St.  Louis  Southwestern,  v.  Mc- 
Laughlin (Mem.)  (241  U. 
S.  670,  36  Sup.  Ct.  Rep. 
727)     1233 

St  Louis  Southwestern,  v.  Pub- 
lior  Service  Commission 
(Mem.)  (230  U.  S.  655,  36 
Sup.  Ct.  Rep.  167)    488 

San  Antonio  ft  A.  P..  v.  Streets 
Western  eStable  Car  Co. 
(Mem.)  (230  U.  S.  650,  36 
Sup.  Ct  Rep.  284 )    486 

San  Antonio  ft  A.  P.,  ▼.  Wagner 
(241  U.  S.  476,  36  Sup.  Ct. 
Rep.  626)    1110 

Seaboard  Air  Line,  v.  Horton 
(230  U.  S.  505,  36  Sup.  Ct. 
Rep.   180)    458 

Seaboard  Air  Line,  v.  Kenney 
(240  U.  S.  480,  36  Sup.  Ct. 
Rep.  458)    762 

Seaboard  Air  Line,  ▼.  Koen- 
necke  (230  U.  S.  352,  36 
Sup.  Ct.  Rep.  126)    324 

Seaboard  Air  Line,  v.  Railroad 
Commission  (240  U.  S.  824, 
86  ISup.  Ct.  Rep.  260)    660 

Seaboard  Air  Line,  ▼.  Renn 
(241  U.  S.  201,  36  Sup.  Ct. 
Rep.  567)    1006 

Southern,  v.  Bramlett   (Mem.) 
(230  U.  S.  651,  86  Sup.  Ct. 
Rep.  160)    486 


CASES  REPORTED. 


BaUwaT  Go.,  Southern,  t.  CuiipMl 
(239  U.  S.  99,  M  Sup.  Ct 
Rep.  88)  166 

Southern,  v.  Gray   (2«L  U.  S. 

333,  3«  Sup.  Ct.  Rep.  658)   1080 

Southern,  Jacobs  ▼.  (241  U.  S. 

229,  36  Sup.  Ct.  Rep.  688)     970 

Southern,  ▼.  Uoyd  (239  U.  S. 

406,  36  Sup.  Ct.  Rep.  210)     402 

Southern,  v.  Prescott  (240  U.  S. 

632,  86  Sup.  Ct.  Rep.  460)     886 

Southern,  ▼.  Thurston  (Mem.) 
(241  U.  S.  642,  86  Sup.  Ct. 
Rep.  446)    1217 

Southern  Wisconsin,  ▼.  Madi- 
son (240  U.  S.  457,  36  Sup. 
Ct.  Rep.  400)    739 

Tkllulah  Falls,  v.  Macon  Coun- 
ty Supply  Co.  (Mem.) 
(241  U.  S.  640,  36  Sup.  Ct. 
Rep.  446)    1216 

Texas  k  P.,  Bankers  Trust  Co. 
y.  (241  U.  8.  295,  86  Sup. 
Ct.   Rep.   569)     1010 

Texas  &  P.,  ▼.  Bigger  (239 
U.  S.  330,  36  Sup.  Ct  Rep. 
127)     310 

Texas  ft  P.,  v.  Rigsby  (241  U. 
S.  33,  36  Sup.  Ct  Rep. 
482)     874 

United,  v.  St.  Louis  (Mem.) 
(4  Cases)  (241  U.  S.  648, 
36  Sup.  Ct  Rep.  550)    ....   1220 

United,  ▼.  St.  Louis  (Mem.) 
( 241  U.  S.  647,  36  Sup.  Ct. 
Rep.   550)    1220 

United  R.  ft  Electric,  Baltimore 
y.  (Mem.)  (241  U.  &  671, 
36  Sup.  Ct  Rep.  722)   1230 

Virginia  R.  ft  Power,  y.  Davis 
(Mem.)  (241  U.  S.  672, 
36  Sup.  Ct  Rep.  723)    ..   1231 

West  End  Street,  Curtis  y. 
(Mem.)  (241  U.  S.  685, 
36  Sup.  Ct  Rep.  286)    ...  1235 

West  End  Street,  Young  y. 
(Mem.)   (241  U.  S.  684,  86 

Sup.  Ct.  Rep.  286)    1235 

Railway    Transfer    Co.    y.    La    Mere 
(Mem.)     (239    U.    S.    651, 

36  Sup.  Ct.  Rep.  159)   486 

Raithmoor,    The.      See    Latta   ft    T. 
CoNSTB.  Co.  V.  Ths  Raith- 

ICOOB. 

The,  Latta  ft  T.  Constr.  Co.  y.    937 

Bamej,  Moss  y 425 

Rankin,   Cincinnati,   N.   0.   ft   T.   P. 

R.  Co.  y 1022 

Bast  T.  Van  Deman  ft  L.  Co.    (240 

U.  S.  342,  86  Sup.  Ct  Rep. 

370) 679 

Hathbon-Jones  Engineering  Co.,  Pease 

y.   (Mem.)    1226 

Pease  y.  (Mem.)    1228 

•0  Ii.  ed. 


Realty  Trust  Co.,  Massaehusette  Bond- 
ing ft  Ins.  Co.  y.   (Mem.) 
Reed  y.  Baltimore  ft  0.  R.  Co.  (Mem.) 

(289  U.  S.  640,  36  Sup.  Ct 

Bep.  160)    

Reese  t.  Philadelphia  ft   R.   R.   Co. 

(239  U.  S.  463,  36  Sup.  Ct 

Rep.  134)    

Reid  y.   Fargo    (241   U.   S.    544,   36 

Sup.  Ct.  Rep.  712)    

Renn,  Seaboard  Air  Line  R.  Co.  y... 
Reyes  y  Mi j  ares  Congregaci6n  de  la 

Mision  de  San  Vincente  de 

Paul  y.   (Mem.)    

Richards,   South   Dakota   ex   rel.,   y. 

Whisman  (Mem.)    (241  U. 

S.   643,   36   Sup.   Ct   Rep. 

449)     

Richardson  y.  Fajardo  Sugar  Co.  (241 

U.  S.  44,  36  Sup.  Ct  Rep. 

476)  

Riddle,  Johnson  y 

Ridge  Aye.  Bank,  Farmers'  ft  M.  Nat. 

Bank  v 

Riefler,  United  SUtes  Fidelity  ft  G.  Co. 

y 

Rigsby,  Texas  ft  P.  R.  Co.  y 

Rio  Grande  Western  R.  Co.  y.  String- 
ham  (239  U.  S.  44,  36  Sup. 

Ct.   Rep.   5)     

Roberta  y.  Roberts   (Mem.)    (239  U. 

S.   639,   36   Sup.   Ct.   Rep. 

190)     

Roberts  y.  (Mem.)   

Robinson,  Ex  parte   (Mem.)    (241  U. 

S.   652,   36   Sup.   Ct   Rep. 

722)     

Ex  parte    (Mem.)    (241  U.   S. 

656,  36  Sup.  Ct.  Rep.  — ) 
Rock  Spring  Distilling  Co.  y.  Gaines 

ft  Co.   (Mem.)    (239  U.  S. 

647,  36  Sup.  Ct.  Rep.  221) 
Rogers  y.  Hennepin  County  (239  U.  S. 

621,  36  Sup.  Ct.  Rep.  217) 
y.  Hennepin  County  (240  U.  S. 

184,  36  Sup.  Ct.  Rep.  265) 

Root  Mfg.  Co.,  Johnson  y 

Rose  y.  McClelland   (Mem.)    (241  U. 

S.   668,   36   Sup.   Ct   Rep. 

552)     

T.  United  SUtes   (Mem.)    (239 

U.  S.  647,  36  Sup.  Ct  Rep. 

219)     

Rosenberger  y.  Pacific  Exp.  Co.   (241 

U.  S.  48,  36  Sup.  Ct.  Rep. 

510)     

Rosenbloom,  Pecos  ft  N.  T.  R.  Co.  y. 
Rosenthal,     Bronx     Nat     Bank     y. 

(Mem.)     

Ross,  United  States  y 

Rue  y.  United   States    (Mem.)    (241 

U.  &  663,  36  Sup.  Ct.  Rep. 

450)     

Rule,  Sioux  County  t.  (Mem.)  .... 


1287 


481 


384 

1156 
1006 


1235 


1218 


879 
752 

767 

121 

874 


136 


481 
481 


1222 
1224 

484 

469 

594 
984 

1229 

484 


880 
780 

1280 
422 


1227 
1216 

1% 


CASES  REPORTED. 


Rusao-Chinese  Bank  ▼.  National  Bank 

of   CcMnmerce    (241   U.    S. 

403,  36  Sup.  Ct.  Rep.  652)   1066 
Ryle  T.  United  States   (Mem.)    (230 

U.  S.  658,  36  Sup.  Ct.  Rep. 

221)  489 


S. 


868 

1210 

143 

1235 

488 

1220 
1220 
1215 
1220 


Saalficld,  Merriam  Co.  v 

Sage,  Ex  parte    (Mem.)     (241   U.   S. 

647,  36  Sup.  Ct.  Rep.  4.)2) 
New  York  v 

St.  Louis,  Loth  ▼.  (Mem.)   

Missouri  ez  rel.,  Missouri  P.  R. 

Co.  ▼.   (Mem.)    

St.  Louis  ft  Suburban  R.  Co.  v. 

(Mem.)     

St.  Louis  Transit  Co.  ▼.  (Mem.) 
Thompson  y.    (Mem.)    ....480, 

United  R.  Co.  ▼.  (Mem.)  

St.  Louis  ft  K.  C.  Land  Co.  v.  Kansas 

aty    (241    U.    S.   419,   36 

Sup.  Ct.  Rep.  647)    

St.  Louis  ft  S.  F.  R.  Co.  v.  Brown 

(241  U.  S.  223,  36  Sup.  Ct. 

Rep.  602)    

T.  Mounts   (Mem.)    (241  U.  S. 

654,  36  Sup.  (X  Rep.  725) 
▼.  Public    Service    Commission 

(Mem.)    (239  U.  S.  65&,  36 

Sup.  Ct.  Rep.  167 )    

T.  Shepherd  (240  U.  S.  240,  36 

Sup.  Ct.  Rep.  274)    

St.  Louis  ft  Suburban  R.  Co.  v.  St. 

Louis    (Mem.)    (241  U.  S. 

648,  36  Sup.  Ct.  Rep.  550) 
St.  Louis,  I.  M.  ft  S.  R.  Co.  v.  Arkan- 
sas (240  U.  S.  518,  36  Sup. 
Ct.  Rep.  443)    

T.  Public  Service  Commission 
(Mem.)   (239  U.  S.  655,  36 

Sup.  Ct.  Rep.  167 )    

United  States  v.    (Mem.)    .... 

St.  Louis,  K.  C.  ft  C.  R.  Co.  v.  Pub- 
lic Service  Commission 
(Mem.)  (239  U.  S.  655,  36 
Sup.  Ct.  Rep.  167)    488 

St.  Louis  Southwestern  R.  Co.  ▼.  Ma- 

ciel  (Mem.)  (241  U.  S.  660, 

36  Sup.  Ct.  Rep.  448)   ....  1226 

T.  McLaughlin  (Mem.)   (241  U. 

S.   679,   36   Sup.   Ct.   Rep. 

727)     1233 

T.  Public  Service  Commission 
(Mem.)  (230  U.  S.  655,  36 
Sup.  Ct.  Rep.  167)    488 

St.  Louis  Transit  Co.  v.  St.  Louis 
(Mem.)  (241  U.  S.  648,  36 
Sup.  Ct.  Rep.  550)    1220 

St.  Louis  Union  Trust  Co.  v.  Mellon 
(Mem.)  (241  U.  S.  657,  36 
Sup.  Ct.  Rep.  286)    1225 


1072 


066 


1223 


488 


622 


1220 


776 


488 
1239 


St.  Louis  Union  Trust  Co.  v.  Mellon 

(Mem.)    (239  U.  S.  648,  36 

Sup.  Ct   Rep.  221 )     485 

St.  Paul,  Barber  Asphalt  Paving  Co.  v. 

(Mem.)     488 

San  Antonio  ft  A.  P.  R.  Co.  v.  Streets 

Western    Stable    Car    Co. 

(Mem.)    (239  U.  S.  650,  36 

Sup.  Ct.  Rep.  284)    486 

▼.  Wagner    (241  U.  S.  476,  36 

Sup.  Ct.  Rep.  626)    1110 

Sangamon   Loan  ft  T.  Co.  v.   United 

Shoe  Machinery  Co.  (Mem.) 

(239  U.  S.  649,  36  Sup.  Ct. 

Rep.  284)    

Sargent  Land  Co.,  von  Baumbach  v. 

(Mem.)     

Schmerts    Wire    Glass    Co.,   Western 

Glass  Co.  ▼.   (Mem.)    

Schmidt,  Pacific  Mail  S.  S.  Co.  v 

Schneider  Granite  Co.,  Gast  Realty  ft 

xnvesv.  v/'O.  v.   ........... 

Gast   Realty   ft   Invest.   Co.   v. 

(Mem.)    

Scott  ▼.  Philipo    (Mem.)    (239  U.  S. 

659,  36  Sup.  Ct.  Rep.  283) 
Seaboard  Air  Line  R.  Co.  v.  Horton 

(239   U.    S.   595,   36    Sup. 

Ct.  Rep.  180)    

T.  Kenney    (240  U.  S.  489,  36 

Sup.  C^.  Rep.  458)    

T.  Kocnnccke  (2.39  U.  S.  352,  36 

Sup.  Ct.  Rep.  126)    

T.  Railroad  Commission  (240  U. 

S.    324.   36   Sup.   Ct.   Rep. 

260)     

T.  Renn  (241  U.  S.  290,  36  Sup. 

Ct.  Rep.  567)    

Sears,  Ex  parte    (Mem.)    (241  U.  S. 

656,  36  Sup.  Ct.  Rep.  726) 
Seattle,  Washington  ex  rel.  Peabody  v. 

( Mem. )     

Sebastian,  Hadacheck  v 

Seekatz  v.  Medina  Valley  Irrig.   Co. 

(Mem.)     (241    U.    S.    646, 

36  Sup.  Ct.  Rep.  461)    

Setera,  Pennsylvania  R.  Co.  v.  ( Mem. ) 
Seven  Cases  v.  United  States  (230  U. 

S.   510,    36   Sup.   Ct.   Rep. 

190)   

Shackelford,  National  Bank  v 

Shade,  Northern  P.  R.  Co.  v 

Shanks  v.  Delaware,  L.  k  W.  R.  Co. 

(239  U.  S.  556,  36  Sup.  Ot. 

Rep.   188)    

Shanley  Co.,  Herbert  v.  (Mem.) 
Sharon,  Mason  ft  H.  C/O.  v.  (Mem.) 
Shattuck  V.  Title  Guaranty  ft  Surety 

Co.  (Mem.)   (239  U.  S.  637, 

241  U.  S.  638,  36  Sup.  Ct. 

Rep.  446)    480,  1215 

Shaw,  Fleitmann  v 505 

Shepard,  Long  v.  (Mem.)  1222 

Shepherd,  St.  Louis  ft  S.  F.  R.  Co.  t.  622 


•  •  •  • 


485 

483 

485 
082 

523 

1239 

489 

458 
762 
324 

669 

1006 

1224 

489 
348 


1219 
1238 


411 
158 
342 


436 
1228 
1230 


CASES  REPORTED. 


Shewalter  ▼.  Carolina,  C.  &  0.  R.  Co. 
(Mem.)    (239  U.  S.  630,  36 

Sup.  Ct.  Rep.  166)    476 

Shiawassee  County,  Eaton  v.  (Mem.)     484 

Sibray,  Yee  Kong  v.  (Mem.)    1225 

Simon,    Marconi    Wirel^s   Teleg.    Co. 

V.   (Mem.)    1232 

Simpson  v.  United  States  (Mem.)  (241 
U.  S.  668,  36  Sup.  Ct.  Rep. 

552)     1229 

Sinclair,  El  Dia  Ins.  Co.  ▼.    (Hem.)   1226 
Sioux  County  v.  Rule  (Mem.)   (241  U. 
S.  ^40,   36   Sup.   Ct.   Rep. 

285)     1216 

Six  Cases  v.  United  SUtes  (239  U.  S. 

510,  36  Sup.  Ct  Rep.  190)     411 

Skaggs,  Illinois  C.  R.  Co.  v.  . . .' 528 

Slaughter,  Illinois  C.  R.  Co.  v.  (Mem.)     486 

Smith,  Broussard  v.  (Mem.)   1215 

Smith    Co.    V.    Calumet    Transit    Co. 
(Mem.)    (241  U.  S.  681,  36 

Sup.  Ct.  Rep.  728)    1284 

South  Atlantic  S.  S.  Co.,  Wilson  ft  Co. 

V.   (Mem.)    1233 

South  Carolina,  Carolina  Glass  Co.  v.    658 
South  Dakota  v.  Cassill  (Mem.)    (241 
U.  S.  686,  36  Sup.  Ct.  Rep. 

449)     1236 

ex   rel.   Richards  v.    Whisman 
(Mem.)    (240  U.  S.  643,  36 

Sup.  Ct.   Rep.  449)    1218 

Southern  Exp.  Co.  v.  Byers    (240  U. 
S.   012,   36   Sup.   Ct.   Rep. 

410)     825 

Southern  Oregon  Co.  v.  Gage  (Mem.) 
(241  U.  S.  685,  36  Sup.  Ct. 

Rep.   447)    1236 

Southern  R.  Co.  v.  Bramlett   (Mem.) 
(239   U.    S.    651,   36    Sup. 

Ct.  Rep.  150)    486 

T.  Campbell   (239  U.  S.  99,  36 

Sup.  C^.   Rep.   33)     165 

T.  Gray  (241  U.  S.  333,  36  Sup. 

Ct.  Rep.   558)     1030 

Jacobs  V 970 

T.  Lloyd    (239    U.    S.    496,    36 

Sup.  Ct.  Rep.  210)    402 

T.  Prescott   (240  U.  S.  632,  36 

Sup.  Ct.  Rep.  469)    836 

T.  Thurston     (Mem.)     (241    U. 
S.    642,   36   Sup.    Ct.   Rep. 

446)     1217 

Southern  Surety  Co.  v.  Oklahoma  (241 
U.  S.  582,  36  Sup.  Ct.  Rep. 

692)     1187 

Southern  Wisconsin  R.  Co.  t.  Madison 
(240   U.   S.   457,   86   Sup. 

Ct.  Rep.  400)   739 

Spokane  &  I.  E.  R.   Co.,  Bradley  v. 

(Mem.)     1215 

▼.  Campbell  (241  U.  S.  497,  36 

Sup.  Ct.  Rep.  683)    1125 

T.  United  States  (241  U.  S.  344, 

36  Sup.  Ct.  Rep.  668)    ...   1037 
•0  li.  ed. 


Stanard,  Dayton  ▼ 1190 

Standard     Fashion     Co.     ▼.     Grant 
(Mem.)    (239  U.  S.  654,  36 

Sup.  Ct.  Rep.  164)    487 

Stanton  ▼.  Baltic  Min.  Co.  (240  U.  S. 

103,  36  Sup.  Ct.  Rep.  278)     546 
State  Bd.  of  Equalization,  Bi-Metallio 

Invest.  Co.  v 872 

Stead  ▼.  Chirtiss   (Mem.)    (239  U.  S. 

634,  36  Sup.  Ct.  Rep.  221)     478 
Steams  Coal  &  Lumber  Co.  v.  Van 
Winkle  (Mem.)    (241  U.  S. 
670,  36  Sup.  Ct.  Rep.  554)    1230 

Steele,  Filler  V.  (Mem.)   1220 

Steiner  v.  Faulk  ft  Co.   (Mem.)    (230 
U.  S.  638,  36  Sup.  Ct.  Rep. 

160)     481 

Steinfdd  ▼.  Zeckendorf  (230  U.  S.  26, 

36  Sup.  Ct.  Rep.  14)    125 

Stewart  t.  Kansas  City  (239  U.  S.  14, 

36  Sup.  Ct.  Rep.  15 120 

Killmer  V.   (Mem.)    487 

T.  Louisville  ft  N.  R.  Co.  (241  U. 
S.   261,   36   Sup.   Ct.   Rep. 

586)     989 

Louisville  ft  N.  R.  Co.  ▼ 989 

Stilwell,  Vandalia  R.  Co.  v.    (Mem.) 

480,  1216 
Stine  T.  Missouri   State  L.  Ins.   Co. 
(Mem)    (241  U.  S.  642,  36 

Sup.  Ct.  Rep.  447 )    1217 

Stokes  ▼.  Williams  (Mem.)   (241  U.  S. 

681,  36  Sup.  Ct.  Rep.  728)   1234 
Stout  ▼.  United  States   (Mem.)    (241 
U.  S.  664,  36  Sup.  Ct.  Rep. 

549)     1227 

Stowe  V.  Harvey  (241  U.  S.  199,  36 

Sup.  Ct.  Rep.  541 )  053 

▼.  Taylor  (Mem.)  (241  U.  S. 

658,  36  Sup.  Ct.  Rep.  286)  1225 
▼.  Taylor  (Mem.)  (241  U.  S. 

687,  36  Sup.  Ct.  Rep.  450)  1236 

Strahl,  Miller  v 364 

Strait  Mfg.  Co.,  Crescent  Mill.  Co.  v. 

(Mem.)     1231 

Strat,  Blumenthal  v.  (Mem.) 1227 

Stratton,  Stratton  v 142 

V.   Stratton    (239  U.  S.  55,  36 

Sup.  Ct.  Rep.  26)    142 

Straus  V.  Notatseme  Hosiery  Co.   (240 
U.  S.  179,  36  Sup.  Ct.  Rep. 

288) 590 

T,    Victor    Talking    Mach.    Co. 
(Mem.)    (241  U.  S.  662,  36 

Sup.  Ct.  Rep.  449)   1227 

Streets  Western  Stable  Car  Co.,  San 
Antonio  ft  A.  P.  R.  Co.  v. 

(Mem.)    485 

Stringkam,  Rio  Grande  Western  R.  Co. 

V 186 

Stromberg-Carlson   Teleph.    Mfg.    Co., 

Busch  V.  (Mem.)    483 

Strosnider  v.  Allen  (Mem.)   (241  U.  8. 

640,  36  Sup.  Ct.  Rep.  285)   1210 

%1 


CASES  REPORTED. 


SaUivan  t.  United  States  (Mem.)  (241 

U.  S.  666,  36  Sup.  Ct  Rep. 

661)     1228 

Supreme  Lodge,  K.  P.  v.  Mime  (241  U. 

S.   674,  36  Sup.   Ct.  Rep. 

702)     1179 

Sutton  Land   Co.,  von  Baumbach  v. 

(Mem.)     483 

Swearingen,  AtchiBon,  T.  &  S.  F.  R.  Co. 

T 317 

Swift  &  Co.  ▼.  Catani  (Mem.)   (241  U. 

S.   690,  36  Sup.   Ct.   Rep. 

664)     1288 

Symington  Co.,  Miner  v.  (Mem.)   ....  1231 


T. 


Tallulah  Falls  R.  Co.  t.  Macon  County 

Supply  Co.  (Mem.)  (241  U. 

S.   640,  36   Sup.  Ct  Rep. 

446)     1216 

Tanner  ▼.  Little   (240  U.  S.  369,  36 

Sup.  Ct.  Rep.  379)    691 

Provo  Bench  Canal  k  Irrig.  Co. 

V 807 

Taylor,  Johnson  ▼ 243 

Stowe  V.  (Mem.)    1225 

Stowe  V.  (Mem.)    1236 

Telescope  Cot   Bed   Co.,  Gold  Medal 

Camp  Furniture  Mfg.  Co. 

V.   (Mem.)    1228 

Tennessee,  Motlow  V.  (Mem.) 487 

North  Carolina  v 847 

Tennessee  Copper  Co.,  Georgia  v 846 

Terminal  Tazicab  Co.  v.  Kutz  (241  U. 

S.   252,  36   Sup.   Ct.  Rep. 

683)     984 

Texas,  Kansas  City,  M.  ft  O.  R.  Co.  t. 

(Mem.)     1221 

Texas  &  P.  R.  Co.,  Bankers  Trust  Co. 

V 1010 

T.  Bigger    (239  U.  S.  830,  36 

Sup.  Ct.  Rep.  127 )   310 

T.   Rigsby    (241   U.   S.   33,   86 

Sup.  Ct.  Rep.  482)    874 

Thacker,  Lancaster  y.  (Mem.)   473 

Thatcher    v.    United    States    (Mem.) 

(241  U.  S.  644,  36  Sup.  Ct 

Rep.  460)    1218 

Thompson  v.  St  Louis  (Mem.)  (239  U. 

S.  636,  241  U.  S.  637,  86 

Sup.  Ct.  Rep.  445)    ...480,  1216 
niompson  k  F.  Lumber  Co.  ▼.  Dilling- 
ham   (Mem.)     (239   U.   S. 

646,  36  Sup.  Ct  Rep.  219)     484 
Thome  t.  Anderson  (240  U.  8. 116,  36 

Sup.  Ct.  Rep.  281 )   554 

Thrift  ▼.  Laird   (Mem.)    (241  U.  S. 

691,  36  Sup.  Ct.  Rep.  554)  1238 
Thurston,  Southern  R.  Co.  t.  (Mem.) 

1217 


Title  Guaranty  k  Surety  Cob  t.  Idaho 
use  of  Allm  (240  U.  S.  136, 
86  Sup.  Ct  Rep.  346)  .... 

IS 


666 


Title  Guaranty  ft  Surety  Ck).,  Shattuck 

▼.   (Mem.)    480,  1216 

Tobin,  Innes  ▼ 662 

Townaend  t.  Georgia  Southern  ft  F. 

R.  Co.   (Mem.)    (239  U.  S. 

643,  36  Sup.  Ct  Rep.  164)     488 
Trading  Stamp  Cases.    See  Tanitkb  v. 

Little. 

Trammell,  Manila  Invest.  Co.  v 12(^ 

Trapp,  McAlester  Edwards  Coal  Co.  v. 

(Mem.)     48d 

Trinity  Gold  Dredging  ft  Hydraulic  Co. 

▼.  Beaudry  (Mem.j  (239  U. 

S.   638,  36   Sup.   Ct  Rep. 

160) 481 

Truax  v.  Raich  (239  U.  S.  33,  36  Sup. 

Ct  Rep.  7)    131 

Trussed  Concrete  Steel  Co.  v.  Ck>rru- 

gated  Bar  Co.  (Mem.)  (241 

U.  S.  681,  36  Sup.  Ct  Rep. 

728)    1234 

Tubular  Woven  Fabric  Co.  v.  National 

Metal  Molding  Co    (Mem.) 

(241  U.  S.  663,  36  Sup.  Ct 

Rep.  450)   1227 

Tucker  t.  United  States  (Mem.)    (241 

U.  S.  668,  36  Sup.  Ct  Rep. 

652)     122U 

Turner   Constr.  Co.,  Union  Terminal 

Co.  ▼.   (Mem.)    1238 

Tyee  Realty  Co.  ▼.  Anderson   (240  U. 

S.  ai5,   36   Sup.  Ct   Rep. 

281)     554 


U. 


Uhl,  Gegiow  ▼ 114 

Unione    Austriaca    de    Navigazione, 

WatU,  W.  &,  Co.  ▼.  (Mem.)   1232 

Union  Mfg.  Co.,  United  States  v 822 

Union    Naval   Stores   Co.    v.    United 

States   (240  U.  S.  284,  36 

Sup.  Ct  Rep.  308)    644 

Union  P.  R.  Co.,  Brushaber  v 493 

Frank  v.    (Mem.)    123» 

V.  Zitnik    (Mem.)     (239  U.   S. 

650,  36  Sup.  Ct  Rep.  159)  486 
Union  Terminal  Co.  v.  Turner  Constr. 

Co.  (241  U.  S.  678,  36  Sup. 

Ct.   Rep.  727)    1233 

Union  Trust  Co.  v.  Grosman  (Mem.) 

(241  U.  S.  662,  36  Sup.  Ct 

Rep.  449)    1227 

United     Mine     Workers,     Dowd     ▼. 

(Mem.)   1238 

United  R.  ft  Electric  Co.,  Baltimore  ▼. 

(Mem.)     123(^ 

United  R.  Co.  v.  St  Louis    (Mem.) 

(4  Cases)    (241  U.  S.  648, 

36  Sup.  Ct  Rep.  550)   1220" 

T.  St  Louis    (Mem.)    (241  U. 

S.   647,  36  Sup.  Ct  Rep. 

660) 1220* 


CASES  REPORTED. 


Halted  Shoe  Machinery  Co.,  Brigge  t.  138 
Suigunon    Loan    ft    T.    Co.    t. 

(Mem.)   485 

Itaited  T. 783 

1.  Andrews   1240  U.  B.  M,  36 

Sup.  Ct.  Rep.  340)    641 

T.  Archer    (241    U.    8.    119,   30 

Sup.  Ct.  Rep.  G21 )    giS 

Aldiiaon,  T.  &  S.  F.  R.  Co.  t. 

(Mem.)    483 

Baddera  t.  708 

V.  BaiiMW    1230  U.   S.  74,  38 

Sup.  Ct  Sep.  10}   150 

BaMo   V.    462 

Bettmaa   t.    (Mm.)    482 

a  rel.   Louisiana   t.    Boarraan 

(Mem.)     (239   U.    S.    S41, 

36  Sup.  Ct  Rep.  163)  ..  482 
▼.  Booth    (Mem.)     (241    U.    S. 

S8S,  36  Sup.  Ct.  Rep.  2S5)    1235 

Carnegie  Steel  Co.  » 676 

Cauaey  y 711 

Central  R.  Co.  t.  (Mem.)   ....   1225 

Cerecedo  t 113 

T.  Chase    (Mem.)     (241    D.    S. 

66S,  36  Sup.  Ct  Rep.  S03)   1220 

Colbun  V.   (Mem.)    483 

Cooper  V.   (Mem.)    1832 

Cramp  &  Sou  Ship  4  Engine 

Bldg.  Co.  T 838 

Crocker    », 633 

Fnmham  y,  786 

Ford   *.    464 

T.  Forty     Barrels     ft     Twenty 

Kege,    (241    V.   8.   266,   36 

Sup.  Ct.  Rep.  S73)    005 

V.  Freeman  (239  U.  S.  117,  36 

Sup.  Ct  Rep.  32)   178 

Grand  Trunk  B.  Co.  v.  (Mem.)  1234 
Hamburg-Amerikanische  Pack- 
et Co.  t 887 

T.     Hamburg   -   Amerilcauiache 

Packet  Co.  (830  U.  S.  46B, 

36  Sup.  a.  Rep.  812)   ....     387 

Hanish  v.   (Mem.)    484 

Harmon  T.  (Men.) 1232 

Haya  V.   (Mem.)    1231 

T.  Hemmer   (241  U.  S.  370,  36 

Sup.   Ct.   Rep.   eSO)     1066 

Huff   V.    (Mem.)     1228 

)  of   Peeler,   lllinoig   Soret; 


Co. 


600 


•X  rel.   Fall   City  Constr.   Co. 

■m^^m  (Mem.)  ..  488 
T.  SS  (241    U.    S. 

394,  S6  Sup.  Ct.  Rep.  658)  1061 
T.  Lake  Shore  ft  M.  S.  R.  (3o. 

(Uem.)     (841    U.    S.    691, 

86  Sup.  Ct.  Rep.  781)    ..   1838 

Lamar  v 526 

Lamar  ».   . . . . ; 018 

ex  rel.  Arant  T.  Iahc   (Hem.) 

(241   U.   S.   «77,   S6    Sup. 

Ct.   Rep.   787)    1833 

••  I^  ed. 


United  State*  ex  rel.  Mickadiat,  Lue 

».    D66 

La  Loqna  v 147 

V.  Lombaido  (241  U.  8.  78,  86 

Sup.  (X  Rep.  608)    BB7 

Maryland  Dredging  ft  Contract- 

046 

Co.   T 1058 

V.    Morrison    (240    U.    S.    108, 

86  Sup.  ....     500 

T.  Moaer    (Mem.)     (230   U.   S. 

658,  36  Sup.  Ct  Rep.  44S)     480 

Houn   Day   v.    (Mem.)    484 

National    Bank    ot    Commerce 

V.    (Mem.)    1226 

tne     of     Hollinger,     National 

(Mem.)    ..  1236 
New  Royal  Mail 

ft  C.  A.  8.  S.  Co.  T 227 

T.  New  South  Farm  ft  Home  Co. 

(241  U.  S.  64,  36  Sup.  Ct 

Rep.   505)    8M 

T.  New  York  ft  P.  R.  8.  8.  Co. 

(230  U.  S.  88,  SB  Sup.  Ct 

Rep.    41)     161 

V.  Nice  (241  U.  8.  501,  36  Sup. 

Ct.   Hep.   609)    1192 

Normile  y 310 

T.  Normile   (230  U.  S.  344,  36 

Sup.  Ct.  Rep.  122)    319 


mm.  ■ 


ft  R.  R.  Co.  T.  . . 

675 

r.  Quiver    (241   U.   S.  902,   8( 

Sup.  a.  Rep.  690)    

1106 

V.  Ross  (230  U.  S.  630,  36  Sup 

Rue  *.    (Mem.)    

1227 

T.  St.  Louie,  I.  M.  ft  8.  R.  Co 

(Mem.)    (241  U.  8.  693.  3( 

Sup.  Ct  Rep.  724)    

1238 

Simpson  V.    (Mem.)    

122(1 

411 

Spokane  ft  I.  E.  R.  Co.  t 

1037 

Stout  V.   (Mem.)    

1227 

Snllivan  v.   (Mem.)    

1228 

Thatcher  V.  (Mem.)   

1219 

Tucker  v.  (Mem.)    

1220 

».  Union   Mfg.   Co.    (240   U.    8 

605,  36  Sup.  Ct.  Hep.  420) 

822 

Union  Naval  Stores  Co.  v 

644 

f.  United     Statea    Steel    Corp. 

(240  U.  8.  448,  36  8up.  Ct 

Uterhart    v 

810 

VandaliaR.  Co.  t.  <Mem.).... 

488 

Weeks   T.    (Mem.)     

1227 

CA6BS  REPORTED. 


United  States  Fidelity  &  G.  Co.,  Bnj 

▼.    (Mem.)     476 

Eichel  V.    (Mem.)    475 

▼.  Riefler  (239  U.  8. 17,  36  Sup. 

Ct.  Rep.   12)    121 

United    States    Steel    Ckyrp.,    United 

States   ▼ 731 

Uppercu,   Ex  parte    (239  U.   S.  436, 

36  Sup.  Ct.  Rep.  140)   368 

Uterhart  v.  United  States  (240  U.  S. 

698,  36  Sup.  Ct.  Rep.  417)  819 
Utica  Bank  v.  Yates  (240  U.  S.  641, 

36  Sup.  Ct  Rep.  429)   788 


V. 


Vall^  S.  S.  Co.  V.  Mraz  (Mem.)   (241 

U.  S.  642,  36  Sup.  Ct.  Rep. 

447)     1217 

T.  Wattawa    (Mem.)     (241    U. 

S.   642,   36   Sup.   Ct   Rep. 

447)     1217 

Vandalia  R.  Co.  ▼.   Stilwell    (Mem.) 

(239  U.  S.  637,  241  U.  S. 

638,  36  Sup.  Ct.  Rep.  446) 

480,  1216 
T.  United  States   (Mem.)    (239 

U.  S.  642,  36  Sup.  Ct.  Rep. 

163)     482 

Van  Deman  ft  L.  Co.,  Rast  ▼ 679 

Van  Winkle,  Stearns  Coal  ft  Lumber 

Co.  V.   (Mem.)    1230 

Varner  ▼.  New  Hampshire  Sav.  Bank 

(240   U.   S.   617,   36   Sup. 

Ct.   Rep.   409)     828 

Venner  v.  Chicago  City  R.  Co.  (Mem.) 

(239  U.  S.  667,  36  Sup.  Ct. 

Rep.   220)    488 

Victor  Talking  Mach.  Co.,  Straus  t. 

(Mem.)     1227 

Villanueva,  Arana  de  Villanueva  v.  . .     293 
Virginia  v.  Morgan    (Mem.)    (239  U. 

8.   653,   36   Sup.   Ct   Rep. 

161) 487 

▼.  West   Virginia    (241    U.    S. 

631,  36  Sup.  Ct  Rep.  719)   1147 
Virginia   R.    ft   Power    Co.   v.    Davis 

(Mem.)    (241  U.  S.  672,  36 

Sup.  Ct.  Rep.  723)    1231 

von  Baumbach  v.  Kearsarge  Land  Co. 

(Mem.)     (239    U.    S.    646, 

36  Sup.  Ct.  Rep.  167)    483 

T.  Sargent    Land    Co.    (Mem.) 

(239  U.  S.  646,  36  Sup.  Ct. 

Rep.   167)     483 

T.  Sutton    Land    Co.     (Mem.) 

(239  U.  S.  646,  36  Sup.  Ct. 

Rep.    167)     483 


W. 


Wagner,  Chicago  ft  A.  R.  Co.  v 879 

V.  Leser  (239  U.  S.  207,  36  Sup. 

Ct.  Rep.  66)    230 

SO 


Wagner,  San  Antonio  ft  A.  P.  R.  Co. 

V 1110 

Wakefield    v.    Bradley    (Mem.)     (241 

U.  S.  688,  36  Sup.  Ct.  Rep. 

640)     1237 

Waldo,  Wilson  V.  (Mem.)  1231 

Wall,  Northern  P.  R.  Co.  v 905 

Wallbrecht  v.   Ingram    (Mem.)     (239 

U.  S.  626,  36  Sup.  Ct.  Rep. 

162)     473 

Ward  V.  Morgan   (Mem.)    (239  U.  S. 

648,  36  Sup.  Ct  Rep.  221)     485 
Ward  ft  Co.  v.  Iowa  Washing  Mach. 

Co.  (Mem.)   (241  U.  S.  680, 

36  Sup.  Ct  Rep.  728)   1234 

Washington,    Northern    Exp.    Co.    v. 

..   (Mem.)    1236 

Pitney  v 703 

ex     rel.     Peabody    t.     Seattle 

(Mem.)     (239    U.    S.    659, 

36  Sup.  Ct.  Rep.  — ,   48;> 

Washington  Dredging  ft  Improv.  Co.  v. 

Kinnear    (Mem.)     (239   U. 

S.  632,   36   Sup.   Ct.   Rep. 

220)     

Washington  Gaslight  Co.,  District  of 

Columbia  v.    (Mem.)    

Water  Comrs.,  Manchester  v.  (Mem.) 

Watson,  Deupree  v.    ( Mem. )    

Wattawa,  Valley  S.  S.  Co.  v.  (Mem.) 
Watts,  W.  ft  Co.,  Ex  parte    (Mem.) 

(241    U.   S.    655,    36    Sup. 

Ct.  Rep.  726)    

T.  Unione  Austriaca   de   Navi- 

gazione    (Mem.)     (241    U. 

S.   677,   36   Sup.   Ct   Rep. 

726)     1232 

Webb,  California  ex  rel.  Banning  Co. 

V.  (240  U.  S.  142,  36  Sup. 

Ct   Rep.   338)    669 

Weber  v.  Freed    (239  U.  S.  326,  36 

Sup.  Ct  Rep.  131)    30S 

Weed,   William   Filene's   Sons  Co.   v. 

(Mem.)    1226 

Weeks  v.  United  States  (Mem.)    (241 

U.    S.    664,    36    Sup.    Ct. 

Rep.  462)     1227 

Wells  F.  ft  Co.  V.  Jersey  City  (Mem.) 

(239  U.  S.  660,  241  U.  S. 

666,  36  Sup.  Ct  Rep.  284) 

486, 

Johnson  v.  •. 

Welsbach   Street  Lighting  Co.,   Fleit- 

mann    v 

West   End    Street   R.    Co.,   Curtis   v. 

(Mem.)     

Toung  V.    ( Mem. )    

Western    Coal    ft    Min.    Co.,    Hise    v. 

(Mem.)    

Western  Glass  Co.  v.  Schmertz  Wir  • 

Glass  Co.   (Mem.)    (239  U. 

8.    648,   36   Sup.   Ct   Rep. 

222)     486 


477 

1232 

1221 

488 

1217 


1224 


1224 
24:{ 

505 

1235 
1235 

1228 


CASES  REPORTED. 


Western  U.  Teleg.  Co.,  Frear  t 1027 

Free  v.    ( Mem.)     1224 

Free  ▼.   (Mem.)    1236 

WcitiiighouBe  Electric  &  Mfg.  Co.  ▼. 

Idalio-Oregon  Light  &  P.  Co. 

(Mem.)    (241  U.  S.  680,  36 

Sup.  Ct.  Rep.  728)    1234 

West  Pub.  Co.,  Ballinger  v.    (Mem.)     484 

Weat  Virginia,  Virginia  v 1147 

Whalley  v.  Philadelphia  ft  R.  R.  Co. 
(Mem.)    (241  U.  S.  689,  36 

Sup.  Ct.  Rep.  549)    123< 

Vfhisman,  South  Dakota  ex  rel.  Rich- 
ards v.  (Mem.)   1218 

White,  Chin  Quock  Wah  v.  (Mem.) . . .  1237 
▼.  United    States    (241    U.    S. 

149,  36  Sup.  Ct.  Rep.  532)     929 
T.  United  States  (239  U.  S.  608, 

36  Sup.  Ct.  Rep.  224)    464 

T.  Wyoming    (Mem.)     (241    U. 
S.   655,   36   Sup.   Ct.   Rep. 

726)     1224 

Whiteaker,  Chicago,  R.  I.  &  P.  R.  Co. 

V 860 

White    Dental    Mfg.    Co.    ▼.    Pieper 
(Mem.)    (239  U.  8.  646,  86 

Sup.    Ct.    Rep.    219)     484 

T.  Pieper    (Mem.)     (241    U.   S. 

690,  36  Sup.  Ct.  Rep.  553)   1237 

Whiteside,  Norton  v 186 

Whitney  t.  New  York  Scaffolding  Co. 
(Mem.)     (230    U.    S.    640, 

36  Sup.  Ct.  Rep.  161)    482 

Whitt,  Ex  parte   (Mem.)    (239  U.  S. 

630,  36  Sup.  Ct.  Rep.  283)     479 

Whittaker,   Clement  v.    (Mem.)    1233 

Wiener,  L.  &  Co.  v.  Hollins   (241  U. 
S.   523,   36   Sup.   Ct.   Rep. 

616)     1143 

Wilckens   v.   Wilckens    (Mem.)     (239 
U.  S.  639,  36  Sup.  Ct  Rep. 

160)     481 

Wilckens  V.  (Mem.)   481 

Wiles,  Great  Northern  R.  Co.  ▼ 732 

William   Filene's   Sons   Co.    v.   Weed 
(Mem.)    (241  U.  8.  659,  36 

Sup.  Ct.  Rep.  448)    1226 

Williams,  Hawgood  &  A.  Transit  Co. 

V.  (Mem.)  1234 

▼.  Johnson    (239  U.  S.  414,  36 

Sup.  Ct.  Rep.  150)    868 

•0  li.  ed« 


Williams,  Stokes  v.  (Mem.)  1234 

Willink  V.  United  States   (240  U.  S. 

672,  36  Sup.  Ct.  Rep.  422)  808 
Wills,  Fairbanks  Steam  Shovel  Co.  v.  841 
Wilson,  Porter  v 204 

▼.  Waldo    (Mem.)     (241   U.   8. 

673,  36  Sup.  Ct.  Rep.  724)  1281 
Wilson  ft  Co.  V.  South  Atlantic  S.  S. 

Co.  (Mem.)  (241  U.  S.  679, 

86  Sup.  Ct.  Rep.  727 )   ....   1288 

Wilson  Cypress  Co.  ▼.  del  Poso  7  Mar- 
cos (Mem.)  (241 IJ.  S.  662, 
36  Sup.  Ct.  Rep.  721)    ....  1222 

Wisconsin,  Bullen  v 830 

Zodrow  V.    (Mem.)    475 

Wolf    Bros,    ft    Co.,    Hamilton-Brown 

Shoe  Co.  V 62D 

Wood,  Nelson  v.   (Mem.)    480,  1215 

Woodman,  Glass  v.   ( Mem. )    1219 

Wright,  Chicago,  R.  I.  ft  P.  R.  Co.  v.    431 
Dure  V.    (Mem.)    1225 

Wyoming,  White  t.  (Mem.)   ..•;.•••  1224 


Y. 


1233 

788 
788 
788 
788 


1225 


Yancey,  Enright  ▼.  (Mem.)   

Bank  of  Staplehurst  ▼ 

Jones  Nat.  Bank  v 

Utica    Bank   ▼ 

Yee  Kong  v.  Sibray  (Mem.)    (241  U. 

S.   667,   86   Sup.   Ct.   Rep. 

286)     

York  ft  W.  Co.  V.  New  York,  N.  H.  ft 

H.  R.  Co.  (Mem.)    (239  U. 

S.   631,   86   Sup.   Ct.   Rep. 

166)     477 

Young  ▼.    West   End    Street   R.    Co. 

(Mem.)    (241  U.  8.  684,  86 

Sup.  Ct  Rep.  286)    1285 

Yurkonis,  Delaware,  L.  ft  W.  R.  Co. 

T.  (Mem.)    486 


Z. 


Zeckendorf ,  Steinf eld  t.  125 

Zitnik,  Union  P.  R.  Co.  t.  (Mem.)  ..  486 
Zodrow  Yi  Wisconsin  (Mem.)    (239  U. 

S.   629,  36   Sup.   Ct.   Rep. 

166)     475 

SI 


CASES 


ARGUED  A.ND   DECIDED 


SUPREME  COUET 


or  THB 


UNITED  STATES 


AT 


OCTOBER  TEUM,    1916. 


Vol.  239. 


60  Ik  ed. 


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880  U.  A. 


THE  DECISIONS 


or  THB 


Supreme  Court  of  the  United  States 


AT 


OCTOBER  TERM,  1915, 


MANUEL.    CERECEDO,    Andrea   Graiasca. 
and  Carlos  Valle,  PlfTa.  in  Err., 

V. 

UNITED  STATES. 

(See  S.  C.  Reporter's  ed.  1-3.) 

Error  to  Porto  Rico  district  court  — 
Jurisdiction  —  dismissal. 

1.  A  writ  of  error  to  tiie  district  court 
of  the  United  States  for  the  district  of 
Porto  Rico  must  be  dismissed  where  there 
is  no  bill  of  exceptions  in  the  record  and 
nothing  which  enables  the  court  lawfully  to 
ascertain  the  existence  of  the  constitutional 
questions  relied  upon  to  confer  jurisdiction. 
(For  other  cnses,  see  Appeal  and  Error,  VII. 

i,  4.  in  Digest  Sup.  Ct.  1908.] 

Appeal  —  motion  to  dismiss  —  decision. 

2.  The  postponing  of  the  consideration 
of  a  motion  to  dismiss  a  writ  of  error  from 
the  Federal  Supreme  Court  until  the  hear- 
ing on  the  merits  is  not  a  decision  in  the 
afHrmative  of  the  question  of  the  power  to 
review. 

(On  motions  to  dismiss  appeal,  generally,  see 
Appeal  and  Error,  VII.  u,  lu  Digest  Sup. 
Ct.  1908.] 

[No.  285.] 

Argued   and    submitted  %October    13,    1915. 
Decided  October  25,  1015. 

IN  ERROR  to  the  District  Court  of  the 
United  States  for  Porto  Rico  to  review 
convictions  of  conspiracy.  Dismissed  for 
want  of  jurisdiction. 

See  same  case  below,  6  Porto  Rico  Fed. 
Rep.  626. 

Messrs.  Paul  Fuller  and  Howard 
Thayer  Kingsbury  submitted  the  cause  for 
plaintiffs  in  error. 

Note. — On  appellate  jurisdiction  of  Fed- 
eral   Supreme    Court    over    Porto    Rican 
courts — see  note  to  Garrozi  t.  Dastas,  51 
L.  ed.  U.  S.  369. 
60  L.  cd. 


Assistant  Attorney  General  Warren  ar- 
gued the  cause  and  filed  a  brief  for  defend- 
ant in  error. 

Solicitor  General  Davis  also  filed  a  brief 
for  defendant  in  error. 

Memorandum  opinion  by  Mr.  Chief  Jus- 
tice White,  by  direction  of  the  court: 

The  plaintiffs  in  error  prosecute  this  writ 
under  the  assumption  that  the  court  below 
denied  rights  asserted  [3]  by  them  tinder 
the  Constitution,  by  refusing,  as  prayed,  to 
return  papers  taken  from  them  under  a 
search  warrant,  and  in  permitting  the  pa- 
pers over  objection  to  be  offered  in  evidence. 
There  is  no  bill  of  exceptions  in  the  record, 
and  nothing  which  enables  us  to  lawfully  as- 
certain the  existence  of  the  constitutional 
questions  relied  upon.  Clune  v.  United 
States,  159  U.  S.  500,  40  L.  ed.  260,  16  Sup. 
Ct.  Rep.  125 ;  Metropolitan  R.  Co.  v.  District 
of  Columbia  (Metropolitan  R.  Co.  v.  Mac- 
farland)  105  U.  S.  322,  49  L.  ed.  219,  26 
Sup.  Ct.  Rep.  28;  Porto  Rico  v.  Emmanuel, 
235  U.  S.  251,  255,  59  L.  ed.  215,  217,  35 
Sup.  Ct.  Rep.  33. 

There  is  nothing,  therefore,  before  us  un- 
less there  be  merit  in  contentions  to  the 
contrary  which  are  pressed  and  which  we 
briefly  dispose  of.  First:  On  the  face  of 
things  it  is  obvious  that  the  postponing  at 
the  last  term  of  the  consideration  of  a  mo- 
tion to  dismiss  was  not  a  decision  of  the 
question  of  power  to  review.  Second :  Even 
indulging,  for  the  sake  of  the  argument 
only,  in  the  assumption  of  the  correctness 
of  the  proposition  urged  that  an  extraor- 
dinary discretion  might  exist  in  some  ex- 
treme case  to  supply  the  entire  absence  of 
a  bill  of  exceptions,  we  see  no  ground  what- 
ever for  the  premise  that  this  is  a  case  of 
that  character. 

Dismissed  for  want  of  jurisdicUoTi. 
8  \\^ 


SUPREME  CX)URT  OP  THE  UNITED  STATES. 


Oct.  TwMMr 


All  GEGIOW  and  Sabas  Zarikoew,  Peti- 
tioners, 

V. 

BYRON  H.  UHL,  as  Acting  Commissioner 
of  Immigration  at  the  Port  of  New  York. 

(See  S.  C.  Reporter's  ed.  3-10.) 

Habeas  oorpns  —  immigration  cases. 

1.  An  alien,  whom  the  commissioner  of 
immigration  has  detained  for  deportation 
for  a  reason  not  recognized  as  sufficient  by 
the  immigration  act  of  February  20,  1007 
(34  Stat,  at  L.  898,  chap.  1134),  §  2,  as 
amended  by  the  act  of  March  26,  1910  (36 
Stat,  at  L.  263,  chap.  128,  Comp.  Stat.  1913, 
S  4244),  §  1,  numerating  the  conditions 
upon  which  the  allowance  to  land  mav  be 
denied, — is  entitled  to  demand  his  release 
upon  habeas  corpus. 

[For  other  cases,  see  Habeas  Corpus,  18-18, 
188-191,   in   Digest    Sup.   Ct.    1908.  J 

Courts  ^  conclusiveness  of  decisions  of 

immigration  officer. 

2.  The  conclusiveness  of  the  decisions 
of  immigration  officers  under  the  immigra- 
tion act  of  February  20,  1907  (34  SUt.  at 
L.  898,  chap.  1134),  §  25,  is  conclusiveness 
upon  matters  of  fact,  not  upon  questions  of 
law. 

[For  other  cases,  see  Courts,  I.  e,  4,  in  Digest 
Sup.   Ct.   1908.1 

Aliens  ^  deportation  ^  public  ciiarges. 

3.  Alien  immigrants  cannot  be  deported 
under  the  immigration  act  of  February  20, 
1907  (34  Stat,  at  L.  898,  chap.  1134),  §  2, 
as  amended  by  the  act  of  March  26,  1910 
(36  Stat,  at  L.  263,  chap.  128),  §  1,  as 
''persons  likely  to  become  a  public  charge,'' 
merely  because  the  labor  market  in  the 
city  of.  their  immediate  destination  is  over- 
stocked. 

I  For  other  cases,  see  Aliens,  VI.  a,  in  Digest 
Sup.  Ct.  1908.J 

[No.  340.] 

Argued  October  13  and  34,  1915.     Decided 
October  25,  1915. 

ON  WRIT  of  Certiorari  to  the  United 
States  Circuit  Court  of  Appeals  for 
the  Second  Circuit  to  review  a  decree  which 
affirmed  a  decree  of  the  District  Court  for 
the  Southern  District  of  New  York,  dis- 
missing a  writ  of  habeas  corpus.  Reversed. 
See  same  case  below,  131  C.  C.  A.  641, 
215  Fed.  573. 
The  facts  are  stated  in  the  opinion. 

Messrs.  Bfax  J.  Kohler  and  Morris 
Jablow  argued  the  cause,  and,  with  Messrs. 

Note. — On  habeas  corpus  in  the  Federal 
courts — see  notes  to  Re  Reinitz,  4  L.RJl. 
•236;  State  ex  rel.  Cochran  v.  Winters,  10 
LJI.A.  616;  and  Tinsley  v.  Anderson,  43 
L.  ed.  U.  S.  91. 

On  treaty  guaranties  to  aliens,  see  note  to 
Candolfo  v.  Hartman,  16  L.R.A.  277. 
114 


Abram  L  Elkus  and  Ralph  Bamett,  fikd 
a  brief  for  petitioners: 

The  right  to  due  process  of  law  under 
the  5th  Amendment  in  immigration  cases  is, 
of  course,  well  established,  and  this  for- 
bids unlawfully  assuming  facts  not  cocrni. 
zable  on  the  theory  of  judicial  notice;  and 
also  deciding  a  case  on  such  undisclosed 
facts  without  giving  the  immigrant  notice 
of  such  intention  or  an  opportunity  to  meet 
such  matter  by  proof. 

Chin  Yow  v.  United  SUtes,  208  U.  S.  8, 
52  L.  ed.  369,  28  Sup.  Ct.  Rep.  201:  Jap- 
anese Immigrant  Case  (Yamataya  t. 
Fisher)  189  U.  S.  86,  100,  47  L.  ed.  721, 
725,  23  Sup.  Ct.  Rep.  611;  Re  Can  Pon, 
03  C.  C.  A.  635,  168  Fed.  479;  Davies  v. 
Manolis,  103  C.  C.  A.  310,  179  Fed.  818; 
United  States  ex  rel.  Huber  v.  Sibray,  17S 
Fed.  144;  Hanges  v.  Whitfield,  200  Fed. 
675,  affirmed  in  138  C.  C.  A.  199,  222  Fed. 
745;  Rodgers  v.  United  States,  81  C.  C.  A. 
454,  152  Fed.  340; 'Re  Monaco,  86  Fed.  117; 
Re  Gottfried,  89  Fed.  9;  Roux  v.  San  Fran- 
cisco, 121  C.  C.  A.  523,  203  Feil.  413;  Ex 
parte  Petkos,  212  Fed.  275,  reversed  in  131 
C.  C.  A.  274,  214  Fed.  078 ;  Re  Kommehl,  87 
Fed.  314;  Ex  parte  Un«r  King  lenjr.  2ia 
Fed.  119;  Ex  parte  Wong  Tucy  lling,  213 
Fed.  112;  Re  Gin  Funjj,  89  Fcd.'lSS:  United 
States  ex  rel.  Bosny  v.  Williams,  185  Fed. 
598;  United  States  v.  Wong  Chung,  92  Fed. 
141;  Re  Chinese  Relators,  38  Fed.  554.  See 
also  Interstate  Commoroc  Commission  v. 
Louisville  A  N.  R.  Co.  227  U.  S.  88,  01,  93, 
57  L.  ed.  431,  433,  434,  33  Sup.  Ct.  Rep, 
185 ;  United  SUtes  v.  1500  Bales  of  Cotton, 
Fed.  Cas.  No.  15,958;  Thayer,  Ev.  pp.  309, 
310. 

All  the  cases  relied  upon  by  the  govern- 
ment below  herein,  and  cited  in  the  opinion 
of  the  circuit  court  of  appeals  (other  than 
the  Nishimura  Ekiu  v.  United  States,  142 
U.  S.  651,  35  L.  ed.  1146,  12  Sup.  Ct.  Rep. 
336,  which  arose  under  a  materially  dif- 
ferent law),  arose  under  the  Chinese  ex- 
clusion laws,  and  not  under  the  general 
immigration  laws.  *  The  courts  have  strong- 
ly emphasized  the  fact  that  differences  in 
the  statutes  render  these  two  classes  of 
cases  inapplicable  to  each  other,  for  an  en- 
tirely different  procedure  is  established  by 
the  Chinese  exclusion  laws  than  is  pre- 
scribed by  the  immigration  law. 

Rodgers  v.  United  States,  81  C.  C.  A.  464, 
152  Fed.  352;  United  States  v.  Sing  Tuck, 
194  U.  8.  161,  170,  48  L.  ed.  917,  921,  24 
Sup.  Ct.  Rep.  621;  Gonzales  v.  Williams, 
192  U.  S.  1,  10,  48  L.  ed.  317,  322,  24  Sup. 
Ct.   Rep.    177. 

Even  under  the  looser  procedure  appli- 
cable to  Chinese  exclusion  cases,  such  de- 
parture from  due  process  of  law  as  is  here 

989  U.  S. 


1916. 


OE<$IO?P#.  UHL. 


involved  has  b«en  held  to  authorize  judicial 
review. 

Re  Can  Pon,  93  C.  C.  A.  635,  168  Fed. 
479. 

The  decision  of  the  court  in  Nishimura 
Ekiu  V.  United  States,  supra,  relied  upon  so 
much  below,  is  not  now  applicable  in  view 
(a)  of  the  marked  changes  in  the  statute 
since  that  case  was  decided,  creatin«;  a  quasi 
judicial  board  required  to  take  testimony, 
and  in  the  direction  of  conferring  on  the 
physicians,  and  not  the  lay  inspectors,  sole 
jurisdiction  to  note  and  certify  physical,  as 
well  as  mental,  defects  in  immigrants 
(United  SUtes  v.  Petkos,  131  C.  C.  A.  274, 
214  Fed.  978);  (b)  the  later  decisions  of 
this  court  limiting  it,  especially  *the  Jap- 
anese Immigrant  Case  (Yamataya  v.  Fish- 
er) 189  U.  S.  8G,  47  L.  ed.  721,  23  Sup. 
Ct.  Hep.  611,  where  it  was  distinguished  on 
constitutional  grounds;  (c)  the  fact  that 
here  unlawful  procedure,  and  no  mere  ques- 
tion of  existence  of  facts,  is  involved;  (d) 
because,  despite  our  statute,  the  record  here 
fails  to  show  that  relators  were  excluded 
on  account  of  anything  observed  by  the 
inspectors  in  their  appearance;  and  (e)  be- 
cause the  right  since  established  of  de- 
termining finally  even  rights  to  citizenship 
and  otiier  difficult  questions  of  law  and 
fact  under  the  later  acts  in  these  admin- 
istrative proceedings  requires  closer  con- 
formity to  judicial  procedure  as  necessary 
due  process  of  law.  It  should  also  be  noted 
that,  (f)  in  general  immigration  cases  the 
statute  imposes  tlie  burden  of  proof  on  the 
government,  wliile  in  Chinese  cases  it  is  on 
the  alien,  except  in  the  single  instance  of 
"assisted  immigrants,"  under  the  general 
immigration  laws,  in  which  case  §  2  ex- 
pressly throws  it  on  the  alien.  26  Ops. 
Atty.  Gen.  414:  I'nited  States  ex  rel.  Castro 
V.  Williams,  203  Fed.  156;  Rodgers  v. 
United  States,  81  C.  C.  A.  454,  152  Fed. 
352;  Chin  Bak  Kan  v.  United  States,  186 
U.  S.  193,  200,  4(1  L.  ed.  1121,  1125,  22  Sup. 
Ct.  Rep.  891;  United  States  ex  rel.  De 
Rienzo  v.  Rodgers,  182  P'ed.  274,  affirmed  in 
107  C.  C.  A.  452,  185  Fed.  334;  Ex  parte 
Petkos,  212  Fed.  275;  Ex  parte  Gregory,  210 
Fed.  080;  Ark  Foo  v.  United  States,  63 
C.  C.  A.  249,  128  Fed.  698;  United  SUtes 
V.  Lee  Qiung,  206  Fed.   367. 

There  being  no  competent  proof  whatever 
in  the  record  of  the  alleged  employment 
conditions  in  Portland,  nor  of  the  alleged 
inability  of  petitioners  to  speak  any  dialect 
except  their  own  unfamiliar  one,  or  of  other 
disability  likely  to  affect  ability  to  earn  a 
living,  their  exclusion  on  the  ground  of 
likelihood  to  become  a  public  charge  is 
without  any  evidence,  and  is  reviewable  in 
the  courts  on  habeas  corpus,  even  independ- 1 
ently  of  the  errors  of  procedure  involved.  ' 
•0  L.  ed. 


Lewis  V.  Frick,  233  U.  S.  291,  297-300, 
58  L.  ed.  967,  971-973,  84  Sup.  Ct.  Rep* 
488 ;  Zakonaita  t.  Wolf,  226  U.  S.  272,  274, 
67  L.  ed.  218,  220,  33  Sup.  Ct.  Rep.  31; 
Bryant  v.  United  States,  167  U.  S.  104,  42 
L.  ed.  94,  17  Sup.  Ct.  Rep.  744;  People 
ex  rel.  Kasschau  v.  Police  Comrs.  155  N.  Y. 
40,  49  N.  £.  257 ;  Interstate  Commerce  Com- 
mission V.  Louisville  &  N.  R.  Co.  227  U.  8. 
88,  57  L.  ed.  431,  33  Sup.  Ct.  Rep.  185; 
Williams  v.  United  States,  124  C.  C.  A.  366, 
206  Fed.  460,  approving  189  Fed.  915; 
United  States  ex  rel.  Rosen  v.  Williams,  IIS 
C.  C.  A.  632,  200  Fed.  541;  United  State» 
ex  rel.  Bauder  v.  Uhl,  128  C.  C.  A.  660,  211 
Fed.  628;  United  States  ex  rel.  Goldberg 
V.  Williams,  204  Fed.  828;  Ex  parte  Petkos, 
212  Fed.  275,  reversed  in  131  C.  C.  A.  274, 
214  Fed.  978;  Re  Feinknopf,  47  Fed.  447; 
Re  Cummings,  32  Fed.  75;  Ex  parte  Sara* 
ceno,  182  Fed.  955;  Frick  v.  Lewis,  116  C.  C- 
A.  493,  195  Fed.  693;  Davies  v.  Manolis, 
103  C.  C.  A.  310,  179  Fed.  821;  United 
States  v.  Passavant,  169  U.  S.  16,  20,  21,  42 
L.  ed.  644,  645,  646,  18  Sup.  Ct.  Rep.  219; 
United  States  v.  Haviland,  167  Fed.  414, 
affirmed  in  100  C.  C.  A.  637,  177  Fed.  175; 
certiorari  denied  in  216  U.  S.  618,  54  L.  ed. 
640,  30  Sup.  Ct.  Rep.  573;  American  School 
V.  McAnnulty,  187  U.  S.  94,  108,  47  L.  ed. 
90,  96,  23  Sup.  Ct.  Rep.  33;  Public  Clear- 
ing House  V.  Coyne,  194  U.  S.  497,  615,  48 
L.  ed.  1092,  1101,  24  Sup.  Ct.  Rep.  789; 
Howe  V.  Parker,  111  C.  C.  A.  466,  190  Fed. 
746;  Williams  v.  United  States,  208  Fed. 
460;  Whitfield  v.  Hanges,  138  C.  C.  A.  199, 
222  Fed.  745;  Japanese  Immigrant  Case 
(Yamataya  v.  Fisher)  189  U.  S.  86,  47  L. 
ed.  721,  23  Sup.  Ct.  Rep.  611;  Chin  Yow 
V.  United  States,  208  U.  S.  8,  52  L.  ed.  36», 
28  Sup.  Ct.  Rep.  201;  Low  Wah  Suey  V. 
Backus,  225  U.  S.  460,  56  L.  ed.  1165,  32 
Sup.  Ct.  Rep.  734;  Tang  Tun  v.  Edsell,  223 
U.  S.  673,  56  L.  ed.  606,  32  Sup.  Ct.  Rep. 
359;  Macy  v.  Browne,  140  C.  C.  A.  45,  224 
Fed.  359. 

A  person  cannot  be  excluded  as  likely  to 
become  a  public  charge  unless  there  be  some 
evidence  of  substantial  affirmative  disabili- 
ties, and  all  the  agencies  at  the  disposal 
of  the  immigrant  to  aid  him  in  his  new 
home,  including  the  assistance  of  relativeii 
not  legally  obligated  to  support  him,  and  of 
friends,  must  be  taken  into  account  in  de- 
ciding the  "likely  to  become  a  public  charge'^ 
issue. 

Re  Feinknopf,  47  Fed.  447 ;  Re  O'Sullivan, 
31  Fed.  447;  Re  Bracmadfar,  37  Fed.  774; 
Re  Day,  27  Fed.  678;  United  States  t. 
Lipkis,  56  Fed.  427 ;  Ex  parte  Saraceno,  182 
Fed.  955;  Ex  parte  Petkos,  212  Fed.  276; 
Williams  v.  United  States,  124  C.  C.  A.  366, 
206  Fed.  460;  United  States  ex  rel.  Gold- 
berg y.   Williams,   204   Fed.   828. 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tkbm, 


Even  as  regards  matters  judicially  notice- 
able, the  authority  relied  upon  should  be 
produced  in  court,  and  the  fact  of  judicial 
notice  being  taken  spread  upon  the  record 
before  the  close  of  the  case,  so  that  proof 
can  be  adduced  by  the  other  fide  to  meet 
the  same. 

McKinnon  v.  Bliss,  21  N.  Y.  214;  Kaola- 
type  Engraving  Go.  ▼.  Hoke,  30  Fed.  444; 
Walton  V.  SUfford,  14  App.  Div.  310,  43 
N.  Y.  Supp.  1049 ;  Dominici  ▼.  United  States, 
72  Fed.  46;  Arkansas  v.  Kansai  k  T. 
Coal  Co.  183  U.  S.  185,  189,  190,  46  L. 
ed.  144,  146,  147,  22  Sup.  Ct.  Rep.  47; 
Thayer,  £v.  chap.  7,  p.  281;  Ex  parte  Pet- 
koa,  212  Fed.  275,  reversed  in  131  C.  C.  A. 
274,  214  Fed.  978;  Whitfield  v.  Hanges,  138 
C.  C.  A.  199,  222  Fed.  745. 

Where  courts  take  judicial  notice  of  facts, 
and  err  in  their  assumed  facts,  a  question 
of  law  is  presented. 

United  SUtes  v.  1600  Bales  of  Cotton, 
Fed.  Cas.  No.  15,958;  Ex  parte  Petkos,  212 
Fed.  275,  reversed  in  131  C.  C.  A.  274,  214 
Fed.  978. 

Statutes  like  the  immigration  laws  fall 
within  the  general  class  of  statutes  in  dero- 
gation of  personal  liberty  which  should  be 
construed  in  favor  of  individual  liberty  and 
personal  right. 

Moflitt  V.  United  States,  63  C.  C.  A. 
117.  128  Fed.  378;  Tsoi  Sim  v.  United 
SUtes,  54  C.  C.  A.  154,  116  Fed  920; 
Redfem  v.  Halpert,  108  C.  C.  A.  262, 
186  Fed.  150;  Japanese  Immigrant  Case 
(Yamataya  v.  Fisher)  189  U.  S.  86,  47  U 
ed.  721,  23  Sup.  Ct.  Rep.  611;  Lieber,  Her- 
meneutics  3d  ed.  pp.  128,  129,  137;  Martin 
▼.  Goldstein,  20  App.  Div  206,  46  N.  Y. 
Supp.  961,  26  Am.  &  Eng.  Enc.  Law,  2d  ed. 
pp.  646,  648,  659,  661,  662. 

Such  uncertain,  complex,  ever-varying 
facts,  changing  constantly  in  point  of  time, 
and  differing  at  the  same  time  as  to  dif- 
ferent places  and  lines  of  industry,  and  re- 
lating to  distant  places, — as  labor  conditions 
in  their  relation  to  a  particular  person's 
being  able  to  get  employment  either  in  his 
specialty  or  any  other, — cannot  be  noticed 
judicially  by  the  courts. 

Smid  V.  Bernard,  31  Misc.  38,  63  N.  Y. 
Supp.  278;  Market  Nat.  Bank  v.  Pacific 
Nat.  Bank,  27  Hun,  465;  Whitfield  v. 
Hanges,  138  C.  C.  A.  199,  222  Fed.  745;  Ex 
parte  Petkos,  212  Fed.  275,  reversed  in  131 
C.  C.  A.  274,  214  Fed.  978. 

Facts  of  recent  occurrence  relating  to  a 
limited  section  of  country  cannot  be  con- 
sidered as  covered  by  judicial  knowledge,  as 
matter  of  history. 

16  Cyc.  868;  Morris  v.  Harmer,  7  Pet. 
654,  558,  8  L.  ed.  781,  783;  McKinnon  v. 
Bliss,  21  N.  Y.  216;  North  Hempstead  v. 
Gregory,  53  App.  Div.  355,  65  N.  Y.  Supp. 
B67;  Market  Nat  Bank  v.  Pacific  Nat.  Bank, 


27  Hun,  465 ;  Smid  v.  Bernard,  31  Misc.  35, 
63  N.  Y.  Supp.  278. 

Matters  constantly  changing  materially, 
and  not  definitely  fixed  and  **known  by 
everybody,"  cannot  thus  be  noticed. 

16  Cyc.  871;  Adams  v.  Elwood,  176  N.  Y. 
106,  68  N.  E.  126 ;  Kokes  v.  State,  55  Neb. 
701,  76  N.  W.  467;  First  Nat.  Bank  v. 
Ayers,  160  U.  S.  660,  40  L.  ed.  573,  16  Sup. 
Ct.  Rep.  412. 

The  courts  should  hesitate  to  take  judicial 
notice  of  facts  in  controversy  in  the  ac- 
tion. 

North  Hempstead  v.  Gregory,  53  App.  Div. 
350,  65  N.  Y.  Supp.  867;  Patent  Button 
Co.  V.  Consolidated  Fastener  Co.  84  Fed. 
189;  Walton  v.  Stafford,  14  App.  Div.  313, 
43  N.  Y.  Supp.  1049. 

The  limitations  upon  the  right  to  notice 
facts  judicially  are  more,  not  less,  Stringent, 
as  applied  to  administrative  bodies,  which 
naturally  are  commonly  composed  of  men 
of  much  less  intelligence,  judgment,  and  in- 
dependence than  are  our  courts,  and  es- 
pecially as  against  aliens  denied  the  right 
to  counsel  and  advisers  until  after  exclu- 
sion by  the  board,  and  commonly  unfamiliar 
with  our  language  and  procedure. 

Interstate  Commerce  Commission  v.  Louis- 
ville &  N.  R.  Co.  227  U.  S.  88,  91,  93.  57 
L.  ed.  431,  433,  434,  33  Sup.  Ct.  Kep.  185: 
Hanges  v.  Whitfield,  209  Fed.  675;  People 
ex  rel.  Clarke  v.  Roosevelt,  168  N.  Y.  488, 
61  N.  E.  783. 

To  vest  such  sweeping  power  in  $l,800-a- 
year  inspectors  under  the  immigration  laws, 
who  are  notoriously  lacking  in  education 
and  weak  in  general,  but  who  are  vested  witli 
power  to  pass  on  the  rights  of  over  a  mil- 
lion persons  a  year,  including  claims  to 
citizenship,  would  be  a  public  calamity;  and 
the  present  instance  is  the  first  one  in 
which  any  court,  in  any  reported  decision, 
has  sustained  such  claim. 

Ex  parte  Petkos,  212  Fed.  275,  reversed 
in  131  C.  C.  A.  274,  214  Fed.  978;  Wil- 
liams V.  United  States,  124  C.  C.  A.  366, 
206  Fed.  460;  United  States  ex  rel.  Bosny 
V.  Williams,  185  Fed.  598;  Roux  v.  San 
Francisco,  121  C.  C.  A.  523,  203  Fed.  413; 
Leung  Jun  v.  United  States,  96  C.  C.  A. 
369,  171  Fed.  413;  United  States  v.  Chin 
Len,  109  C.  C.  A.  310,  187  Fed.  544 ;  United 
States  V.  Wong  Chung,  92  Fed.  141 ;  Whit- 
field V.  Hanges,  138  C.  C.  A.  199,  222  Fed. 
745;  Jouras  v.  Allen,  138  C.  C.  A.  210,  222 
Fed.  756. 

Even  if  such  facts  r^arding  economic 
conditions  can  be  noticed  judicially,  the  al- 
leged newspaper  reports  here  involved  could 
not  lawfully  be  considered  as  the  basis  for 
judicial  notice,  and  there  is  no  other  proof 
of  the  alleged  facts  in  question. 

Walton  V.  Stafford,  14  App.  Div.  *10,  43 

989  U.  S. 


1015. 


GEGIOW  ▼.  UHL. 


8 


y.  Y.  Supp.  1049;  WheUn  t.  Lynch,  60 
N.  Y.  469,  19  Am.  Rep.  202;  DownB  ▼. 
New  York  C.  R.  Co.  47  N.  Y.  83,  6  Am. 
Neg.  Cae.  142;  Langlej  t.  Smith,  3  N.  Y. 
S.  R.  276;  Harrii  t.  Panama  R.  Co.  3 
Boflw.  7;  McKinnon  ▼.  Bliss,  21  N.  Y.  215; 
Caldwell  v.  National  Mohawk  V^alley  Bank, 
64  Barb.  333;  Greenl.  £v.  §  440,  note; 
Morris  ▼.  Harmer,  7  Pet.  554,  8  L.  ed.  781; 
Whitfield  T.  Hanges,  138  C.  C.  A.  109,  222 
Fed.  745. 

Where  the  courts  on  habeas  corpus  as- 
sume jurisdiction  to  review  an  order  of  ex- 
clusion, they  are  themselves  to  determine 
the  question  of  admissibility,  and  not  merely 
to  remand  relator  for  a  new  hearing  to  the 
immigration  authorities... 

Chin  Yow  v.  United  SUtes,  208  U.  S. 
8,  13,  52  L.  ed.  369,  370,  28  Sup.  Ct  Rep. 
201;  United  States  v.  Petkos,  131  C.  C.  A. 
274,  214  Fed.  978;  Whitfield  v.  Hanges, 
138  C.  C.  A.  199,  222  Fed.  745;  United 
SUtes  ez  reL  I^Amato  v.  Williams,  193  Fed. 
228. 

Solicitor  General  Davis  argued  the  cause 
and  filed  a  brief  for  respondent: 

Congress  has  complete  power  to  exclude 
all  aliens  and  to  determine  the  conditions 
of  their  entry. 

Laplna  v.  Williams,  232  U.  S.  78,  88,  58 
L.  ed.  515,  518,  34  Sup.  Ct.  Rep.  196; 
United  SUtes  v.  Ju  Toy,  198  U.  S.  253, 
49  L.  ed.  1040,  25  Sup.  Ct.  Rep.  644. 

The  administrative  determination  made 
the  condition  of  entry  need  not  be  based 
upon  a  hearing  at  which  the  alien  has  an 
opportunity  to  present  evidence. 

Buttfield  V.  Stranahan,  102  U.  S.  470, 
48  L.  ed.  525,  24  Sup.  Ct.  Rep.  349;  Oceanic 
Nat.  Co.  v.  Stranahan,  214  U.  S.  320,  53 
L.  ed.  1013,  29  Sup.  Ct.  Rep.  671;  Origet 
T.  Hedden,  155  U.  S.  228,  39  L.  ed.  130, 
15  Sup.  Ct.  Rep.  92. 

When  Congress  has  made  a  favorable  ad- 
miniatrative  decision  the  sole  and  indispen- 
sable condition  precedent  to  entry,  and  has 
declared  an  adverse  decision  to  be  final,  the 
isourU  have  no  power  to  review  the  evidence 
upon  which  the  latter  is  based. 

Nishimura  Ekiu  v.  United  States,  142 
U.  S.  651,  660,  35  L.  ed.  1146,  1149,  12 
Sup.  Ct.  Rep.  336. 

In  the  immigration  act  Congress  has  made 
the  fact  of  the  decision  by  immigration  of- 
ficials the  sole  condition  of  entry.  The  fact 
of  the  decision  being  esUblished,  any  in- 
quiry into  the  evidence  is  improper. 

1.  The  act  (§  25)  in  unmistakable  terms 
declares    that    the    adverse    administrative 
decision  ''shall  be  final." 
•0  L.  ed. 


Pearson  ▼.  Williams,  202  U.  S.  281,  60 
L.  ed.  1029,  26  Sup.  Ct.  Rep.  608. 
I  2.  The  statute  imports  that  want  of  any 
susUining  evidence  shall  not  of  itself  con- 
stitute a  ground  for  judicial  impeachment 
of  the  adverse  administrative  decision. 

(a)  The  officers  do  not  lose  exclusive 
jurisdiction  by  judging  all  the  evidence  er- 
roneously. 

Chin  Yow  ▼.  United  States,  208  U.  S. 
8,  13,  52  L.  ed.  369,  370,  28  Sup.  Ct.  Rep. 
201;  Harlan  v.  McGourin,  218  U.  S.  442,  54 
L.  ed.  1101,  31.  Sup.  Ct.  Rep.  44,  21  Ann. 
Cas.  849. 

(b)  Want  of  any  susUining  evidence  in 
the  record  does  not  per  te  esUblish  fraud 
or  lack  of  good  faith. 

White  V.  Gregory,  130  C.  C.  A.  282,  21S 
Fed.  768 ;  Nishimura  Ekiu  v.  United  SUtes, 
142  U.  S.  651,  660,  35  L.  ed.  1146,  1149, 
12  Sup.  Ct.  Rep.  336. 

3.  Under  this  act  the  courU  have  no 
jurisdiction  to  review  the  evidence. 

Fok  Yung  Yo  v.  United  SUtes,  185  U. 
S.  296,  46  L.  ed.  917,  22  Sup.  Ct.  Rep. 
686;  Fong  Yue  Ting  v.  United  States,  149 
U.  S.  698,  37  L.  ed.  905,  13  Sup.  Ct.  Rep. 
1016;  White  v.  Gregory,  130  C.  C.  A.  282, 
213  Fed.  768;  Lee  Gon  Yung  v.  United 
SUUs,  185  U.  S.  306,  46  L.  ed.  021,  22  Sup. 
Ct  Rep.  690;  Lee  Yung  v.  Patterson,  186 
U.  S.  175,  46  L.  ed.  HIO,  22  Sup.  Ct,  Rep. 
795;  Lem  Moon  Sing  v.  United  States,  158 
U.  S.  538,  39  L.  ed.  1082,  15  Sup.  Ct.  Rep. 
967;  Nichimura  Ekiu  v.  United  SUtes, 
supra. 

4.  Cases  under  sUtutes  providing  for  ad- 
ministrative proceedings  of  a  different  kind 
are  not  applicable. 

Interstate  Commerce  Commission  v.  Louis- 
ville &  N.  R.  Co.  227  U.  S.  88,  57  L.  ed. 
431,  33  Sup.  Ct.  Rep.  185 ;  Lewis  v.  Frick, 
233  U.  S.  291,  58  L.  ed.  967,  34  Sup.  Ct 
Rep.  488;  American  School  v.  McAnnulty, 
187  U.  S.  94,  47  L.  ed.  90,  23  Sup.  Ct  Rep. 
33;  Zakonaite  v.  Wolf,  226  U.  S.  272,  57  L. 
ed.  218,  33  Sup.  Ct.  Rep.  31. 

Mr.  Justice  Holmes  delivered  the  opinion 
of  the  court: 

The  petitioners  are  Russians  seeking  to 
enter  the  United  SUtes.  They  have  been 
deUined  for  deportation  by  the  Acting  Com- 
missioner of  Immigration,  and  have  sued 
out  a  D^rit  of  habeas  corpus.  The  writ  was 
dismissed  by  the  district  court  and  the 
circuit  court  of  appeals.  211  Fed.  236;  131 
C.  C.  A.  641,  215  Fed.  573.  By  the  return 
it  appears  that  they  are  part  of  a  group 
of •  illiterate  laborers,  only  one  of  whom,  it 
I  seems,  Gegiow,  speaks  even    the    ordinary 

\\1 


S-10 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Temu, 


Russian  tongue,  and  in  view  of  that  fact  it 
was  suggested  in  a  letter  from  the  acting 
commissioner  to  the  Commissioner  General 
that  their  ignorance  tended  to  make  them 
form  a  clique  to  the  detriment  of  the  com- 
munity; but  that  is  a  trouble  incident  to 
the  immigration  of  foreigners  generally 
which  it  is  for  legislators,  not  for  com- 
missioners, to  consider,  and  may  be  laid 
on  one  side.  The  objection  relied  upon  in 
the  return  is  ihat  the  petitioners  were 
''likely  to  become  public  charges  for  the 
following,  among  other  reasons:  That  they 
arrived  here  with  very  little  money  [$40 
and  $25,  respectively],  and  are  bound  for 
Portland,  Oregon,  where  the  reports  of  in- 
dustrial conditions  show  that  it  would  be 
impossible  for  these  aliens  to  obtain  employ- 
ment; that  they  have  no  one  legally  obli- 
gated here  to  assist  them;  and  upon  all  the 
facts,  the  said  aliens  were  upon  the  said 
grounds  duly  excluded,"  etc.  We  assume 
the  report  to  be  candid,  and,  if  so,  it  shows 
that  the  only  ground  for  [0]  the  order  was 
the  state  of  the  labor  market  at  Portland  at 
that  time;  the  amount  of  money  possessed 
and  ignorance  of  our  language  being  thrown 
in  only  as  makeweights.  It  is  true  that  the 
return  says  for  that  "among  other  reasons.'' 
But  the  state  of  the  labor  market  is  tnc 
only  one  disclosed  in  the  evidence  or  the 
facts  that  were  noticed  at  the  hearing,  and 
the  only  one  that  was  before  the  Secretary 
of  Labor  on  appeal;  and  as  the  order  was 
general  for  a  group  of  twenty  it  cannot  fair- 
ly be  interpreted  to  stand  upon  reasons 
undisclosed.  Therefore  it  is  unnecessary 
to  consider  whether  to  have  the  reasons 
disclosed  is  one  of  the  alien's  rights.  The 
only  matter  that  we  have  to  deal  with  is 
the  construction  of  the  statute  with  ref- 
erence to  the  present  case. 

The  courts  are  not  forbidden  by  the  stat- 
ute to  consider  whether  the  reasons,  when 
they  are  given,  agree  with  the  requirements 
of  the  act.  The  statute,  by  enumerating 
the  conditions  upon  which  the  allowance  to 
land  may  be  denied,  prohibits  the  denial  in 
other  cases.  And  when  the  record  shows 
that  a  commissioner  of  immigration  is  ex- 
ceeding his  power,  the  alien  may  demand 
his  release  upon  habeas  corpus.  The  con- 
clusiveness of  the  decisions  of  immigration 
officers  under  §  25  is  conclusiveness  upon 
matters  of  fact.  This  was  implied  in  Nishi- 
mura  Ekiu  v.  United  States,  142  U.  S.  651, 
35  L.  ed.  1146,  12  Sup.  Ct.  Rep.  336,  relied 
on  by  the  government.  As  was  said  in 
Gonzales  v.  Williams,  102  U.  S.  1,  15,  48 
L.  ed.  317,  322,  24  Sup.  Ct.  Rep.  177,  "as 
Gonzales  did  not  come  within  the  act  of 
1801  [26  Stat,  at  L.  1084,  chap.  551],  the 
118 


commissioner  had  no  jurisdiction  to  detain 
and  deport  her  by  deciding  the  mere  ques- 
tion of  law  to  the  contrary."  Such  a  case 
stands  no  better  than  a  decision  without  a 
fair  hearing,  which  has  been  held  to  be 
bad.  Chin  Yow  v.  United  SUtes,  208  U.  S. 
8,  52  L.  ed.  360,  28  Sup.  Ct.  Rep.  201.  See 
furtlier  Zakonaite  v.  Wolf,  226  U.  S.  272, 
57  L.  ed.  218,  33  Sup.  Ct.  Rep.  31;  Lewis  v. 
Frick,  233  U.  S.  201,  207,  68  L.  ed.  067,  071, 
34  Sup.  Ct.  Rep.  488. 

The  single  question  on  this  record  is 
whether  an  alien  can  be  declared  (ikely  to 
become  a  public  charge  on  the  ground  that 
the  labor  market  in  the  city  of  his  immedi- 
ate [10]  destination  is  overstocked.  In  the 
act  of  February  20,  1007,  chap.  1134,  §  2, 
34  Stat,  at  L.  808,  as  amended  by  the  act  of 
March  26,  1010,  chap.  128,  §  1,  36  Stat,  at 
L.  263,  Comp.  Stat.  1013,  §  4244,  determin- 
ing who  shall  be  excluded,  "Persons  likely 
to  become  a  public  charge"  are  mentioned 
between  paupers  and  professional  beggars, 
and  along  with  idiots,  persons  dangerously 
diseased,  persons  certified  by  the  examining 
surgeon  to  have  a  mental  or  physical  defect 
of  a  nature  to  affect  their  ability  to  earn  a 
living,  convicted  felons,  prostitutes,  and  so 
forth.  The  persons  enumerated,  in  short, 
are  to  be  excluded  on  the  ground  of  per- 
manent personal  objections  accompanying 
them  irrespective  of  local  conditions  unless 
the  one  phrase  before  us  is  directed  to  dif- 
ferent considerations  than  any  other  of 
those  with  which  it  is  associated.  Pre- 
sumably it  is  to  be  read  as  generically 
similar  to  the  others  mentioned  before  and 
after.  • 

The  statute  deals  with  admission  to  the 
United  States,  not  to  Portland,  and  in  §  40 
contemplates  a  distribution  of  immigrants 
after  they  arrive.  It  would  be  an  amazing 
claim  of  power  if  commissioners  decided  not 
to  admit  aliens  because  the  labor  market 
of  the  Unitod  States  was  overstocked.  Yet, 
as  officers  of  the  general  government,  they 
would  seem  to  be  more  concerned  with  that 
than  with  the  conditions  of  any  particular 
city  or  state.  Detriment  to  labor  condi- 
tions is  allowed  to  be  considered  in  §  1,  but 
it  is  confined  to  those  in  the  continental 
territory  of  the  United  States,  and  the  mat- 
ter is  to  be  determined  by  the  President. 
We  cannot  suppose  that  so  much  greater  a 
power  was  intrusted  by  implication  in  the 
same  act  to  every  commissioner  of  immigra-. 
tion,  even  though  subject  to  appeal,  or  that 
the  result  was  intended  to  be  effected  in 
the  guise  of.  a  decision  that  the  aliens  were 
likely  to  become  a  public  charge. 

Order  reversed. 

289  U.  S. 


1W5.         CENTRAL  TRUST  CO.  v.  GEORGE  LUEDERS  k  CO.        11,  12 

(111    CENTRAL   TRUST   COMPANY   OF  not  belonging  to  that  class,  even  though  the 

ILLINOIS    and    the    Covington    Savings  operation   of   the   act   must   be   restrained 

Bank  &,  Trust  Company,  as  Trustee  of  the  within    narrower    limits    than    its    literal 

1.  Rheinstrom  k   Sons  Company,   Bank-  words  import. 

nipt,  Appts.,  United  States  ▼.  American  Bell  Teleph. 

▼.  Co.  159  U.  S.  548,  40  L.  ed.  255,  16  Sup. 

GEORGE  LUEDERS  k  CO.,  G.  S.  Nicholas  Ct.  Rep.  69;  Petri  v.  Commercial  Nat.  Bank, 

k  Co.,  D.  A.  White  Co.,  the  E.  Berghausen  142  U.  S.  644,  660,  36  L.  ed.  1144,  1146, 

Chemical  Co.,  the  E.  A.  Conkling  liox  Co.,  12  Sup.  Ct.  Rep.  325;  Church  of  the  Holy 

T.    A    l^ecker,   B.   F.   Goodrich   Co.,   and  Trinity  v.  United  States,  143  U.  S.  457,  459, 

Hazel-Atlas  Glass  Co.  4^3^  3^  L.  ed.  226,  228,  229,  12  Sup.  Ct. 

(See  S.  C.  Reporter's  ed.  11-13.)  ^^F'J^l'  .Y""'^.  ^^*^    ""'    ^*>i°<>^i«^' 
*^                               '238  U.  S.  78,  59  L.  ed.  1211,  36  Sup.  Ct 

Appeal  ^  from  circuit  court  of  appeals  ^®P*  ®®^' 

—  bankruptcy  cases.  Where  the  correctness  of  a  judgment  of 
Causes  requiring  the  determination  the  circuit  court  of  appeals  depends  upon 
«f  the  validity  of  a  state  statute  under  the  the  construction  or  application  of  the  Con- 
Federal  Constitution  are  comprehended  hy  stitution  of  the  United  States,  the  defeated 
tit.PTo"o."l  ""K  *T  ^  ^^o  ""l  '^^"n'if.'^o^?'  party,  provided  it  has  asserted  its  consti- 
ifa^Lf«nr(ex^c\^^^  rutiLf  rights  from  the  outset,  is  entitled, 
bv  certiorari)  "the  judgments  and  decrees  as  of  right,  to  a  re-exammation  of  the  judg- 
of  the  circuit  courts  of  appeals  in  all  pro-  ™«"*  ^y  ***»«  court,  even  though  the  decree 
ceedings  and  cases  arising  under  the  bank-  of  the  district  court  was  rendered  sitting  in 
niptcy  act  and  in  all  controversies  arising  bankruptcy. 

in  such  proceedings  and  cases."  Spreckels  Sugar  Ref.  Co.  v.  McClain,  192 

[For  other  cn»e.H,  see  Appeal  nnd   Error,   III.  tt    s    307    40  i     oA    40A    2A  Run    P<l  Ra» 

d,  2,  c,  in  Digest  Sup.  Ct.  1908.]  ^'^'  JW/,  45  J^  ea.  wo,  ^4  Hup.  ut.  ttep. 

378. 

[No.  445.]  ^^'  Walter  A.  DeCamp  submitted  the 

cause  for  appellees.    Messrs.  Dudley  V.  Sut- 

^Submitted  October  12,  1915.    Decided  Octo-  pl^in*    Leo   J*    Brumleve,   Jr.,   Edwards   F. 

•ber  2o,  1915.  Peters,  and  Paul  V.  Connolly  were  on  the 

brief : 

APPEAL  from  the  United  States  Circuit  As  this  is  one  of  the  class  of  cases  of 

Court  of  Appeals  for  the  Sixth  Circuit  which  the  courts  of  appeal  have  final  ju- 

to  review  a  decree  which  affirmed  a  decree  risdiction,  and  as  the  case  has  been  deter» 

of  the  District  Court  for  the  Eastern  Dis-  mined  by  the  court  of  appeals  on  its  merita» 

trict   of   Kentucky,   allowing   certain    liens  another    appeal    cannot    be   maintained   to 

upon    the    property   of   a   bankrupt.      Dis-  this  court,   even  though  the  case  involves 

missed  for  want  of  jurisdiction.  constitutional    rights.     Such    case    can    be 

See  same  case  below,  137  C.  C.  A.  387,  taken    to    the    Supreme    Court   only    upon 

221  Fed.  829.  certiorari. 

,,               -    ^^ WW     ^ w^ ,  „«_>■  Cary  Mfg.  Co.  v.  Acme  Flexible  Clasp  Co. 

Messrs.      Judson  .    Harmon,      Kclward  -o_  _•    „  ®  „_     ._  ,       j    o>i>«    ««  o        ^xl 

#^  ■  .            A       %»'      ^11       i«i        ^     -««  187  U.  S.  427,  47  L.  ed.  244,  23  Sup.  Ct. 

Colston,     A.      W.      Goldsniitti.      George  „         _,-      u        ,        -.,*       />,             r^  %  i. 

Hoadly   licsslns  Rosentlial   and  Charles  ^^P*    ^^^'    Huguley   Mfg.    Co.    v.    Galeton 

^    iS       t^     y      tl  ^^^                 f  ^""^      ,  Cotton  Mills,  184  U.  S.  290,  46  L.  ed.  646, 

H.  Hamitl  submitted  the  cause  for  appel-  __  ^^        ^-.x    A        A^n     a        •         o           -n  m 

UnU.     Mr.   Leo   F.   Wormnt-r   was   on   the  ??  ^"^^  ^- ^'P' '*^2%trTVT  fT'.r  */* 

.   .  .,  Co.  V.  New  Orleans,  181  U.  S.  277,  46  L. 

^•iere  «n  act  of  Congrew  i.  directed  to  1$\!^\^\^^l,  ""  ^^^  f^V  ^"^T^,- 

•  cl«8B  of  C8e8  which  had  80  increased  in  g*'*^*"      "    3«               ^^  ^  ^  746,  17 

number  as  to  impose  a  burden  of  litigation  ^^*  ^  ■       P*        * 

upon  this  court,  the  act  will  be  given  effect  ^,             ,                          t.-»r       ▼.» 

in  the  light  of  the  object  of  its  enactment,  „*If  ""ff'^K  T°T    ^,  JJ'"        f  ** 

«iid  will  not  be  construed  as  a  limitation  "^'^''""'t^*!  ^y  **""*'r  •'^*''*  *""""*= 

upon  the  jurisdiction  of  thi.  court  in  a  case  J»\*  \  Rhemstrom  &  Sov  Company  was 

_,! adjudged  a  bankrupt  m  April,  1912.    Liens 

Note.— On  appellate  jurisdiction  of  Fed-  upon  its  property  were  claimed  by  appellees 

eral   Supreme  Uourt   in   bankruptcy   cases,  under  a  Kentucky  statute  which  appellants 

see  note  to  James  v.  Stone,  67  L.  ed.  U.  S.  (general  creditors)  maintained  contravened 

-^73.  f}^Q  ][4th  Amendment  to  the  Constitution  of 

On  appellate  jurisdiction  of  Federal  Su-  ^he  United  States.     Overruling  the  referee, 

preme  Court  oTer  circuit  courts  of  appeals  ^    ^.  ^^.  ^  ^^^^^  ^„^^^^    ^j^^   j.^^,    ^207 

— see  notes  to  Bagley  v.  General  Fire  Ex-  «,-,«,         .  ..  -        a.-                           ju 

tinguisher  Co.  53  L.  ed.  U.  S.  605,  and  St.  ^^^'  }^^\*  •"^^  *»"•  action  was  approved  by 

Anthony    Church    v.    Pennsylvania   R.    Co.  *^^e  circuit  court  of  appeals,  March  2,  1916, 

^9  L.  ed.  U.  &  1119.  ui  an  opinion  which  expressly  upheld  the 

«0  Ii.  ed.  \\% 


12-15 


SUPREME  COURT  OF  THE  UNITED  STATEa 


Oct.  Tebm^ 


▼alidity  of  the  itatute  (221  Fed.  829).  Ap- 
pellees have  moved  to  dismiss  the  present 
appeal. 

Section  4,  act  of  Congress,  approved 
January  28,  1915  (38  Stat,  at  L.  803,  804, 
chap.  22),  provides:  "That  the  judgments 
and  decrees  of  the  circuit  courts  of  appeals 
in  all  proceedings  [13]  and  cases  arising 
under  the  bankruptcy  act  and  in  all  contro- 
versies arising  in  such  proceedings  and  cases 
shall  be  final,  save  only  that  it  shall  be  com- 
petent for  the  Supreme  Court  to  require  by 
certiorari,  upon  the  petition  of  any  party 
thereto^  that  the  proceeding,  case,  or  con- 
troversy be  certified  to  it  for  review  and 
determination,  with  the  same  power  and 
authority  as  if  taken  to  that  court  by  ap- 
peal or  writ  of  error;  but  certiorari  shall 
not  be  allowed  in  any  such  proceeding,  case, 
or  controversy  unless  the  petition  therefor 
is  presented  to  the  Supreme  Court  within 
three  months  from  the  date  of  such  judg- 
ment or  decree." 

Manifestly,  the  words  of  the  quoted  sec- 
tion include  the  decree  below,  and  inhibit 
an  appeal  therefrom.  It  is  argued,  however, 
that  they  should  be  so  construed  as  to  ex- 
clude causes  requiring  interpretation  of 
state  statutes  and  application  of  the  Feder- 
al Constitution,  and  thereby  limited  in  ef- 
fect to  the  supposed  purpose  of  (ingress  to 
relieve  this  court  only  from  the  necessity  of 
reviewing  bankruptcy  cases  which  "involve 
complicated  questions  of  fact  rather  than 
of  law."  We  see  no  reason  to  doubt  that 
the  plain  langusge  of  the  enactment  aptly 
expresses  the  fixed  legislative  intent.  The 
appeal  is  accordingly  dismissed  for  want  of 
jurisdiction* 


[14]  SAMUEL  STEWART,  as  Treasurer  of 
Wyandotte  County,  Kansas,  Plff.  in  Err., 

V. 

CITY  OF  KANSAS  CITY,  Kansas. 
(See  S.  C.  Reporter's  ed.  14-16.) 

Error  to  state  court  —  who  may  main- 
tain —  public  officer. 

1.  A  county  treasurer  has  no  such  per- 
sonal interest  m  the  litigation  as  entitles 
him  to  maintain  a  writ  of  error  from  the 
Federal  Supreme  Court  to  review  a  judg- 
ment of  a  state  court  compelling  him  to 
account  to  a  city  within  the  county  under 
certain  taxing  statutes  of  the  state  which 


the  county  treasurer  asserts  are,  as  con- 
strued by  the  state  court,  repugnant  to  the* 
Federal  Constitution. 
[For  other  cases,  see  Appeal  and  Error,  20e8. 

2060,  Id  Digest  Sop.  Ct.  1908.)  ^^ 

Error  to  state  court  —  frlToIous  FM* 

eral  question. 
2.  No  substantial  Federal  question 
which  will  support  a  writ  of  error  from 
the  Federal  Supreme  Court  to  a  state  court 
is  presented  by  the  contention  that  tax- 
payers of  a  ooun^,  who  reside  outside  of 
cities  of  the  first  class,  are  deprived  of  their 
property  without  due  process  of  law  and 
are  denied  the  equal  protection  of  the  lawa 
by  state  legislation  under  which,  as  con- 
strued by  the  state  court,  a  county  must 
reimburse  a  city  of  the  first  class  within 
such  county  for  the  amoYmt  by  which  th» 
taxes  collected  for  the  city  are  reduced  by 
rebates  granted  for  prompt  payment,  and 
at  the  same  time  must  pay  over  to  the  ci^ 
the  amount  collected  as  penalties  for  delay 
in  the  payment  of  taxes  levied  by  the  city, 
while  in  the  case  of  taxes  levied  by  cities- 
of  the  second  and  third  class  and  by  town- 
riiips  and  school  districts  the  rebates  are 
charged  to  the  county  and  the  penaltiea 
credited  to  it. 
[For  other  cases,  see  Appeal  and  Error.  1110- 

1187,  in  Digest  Sup.  Ct.  1908.] 

[No.  284.] 

Submitted  October  18,  1916.     Decided  No- 
vember 1,  1915. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Kansas  to  review  a  judgment 
which  affirmed  a  judgment  of  the  District 
Court  of  Wyandotte  County,  in  that  state,, 
requiring  the  County  Treasurer  to  account 
to  the  city  of  Kansas  City  for  certain  suma 
due  the  city  under  taxing  statutes  of  the 
state.    Dismissed  for  want  of  jurisdiction. 

See  same  case  below,  90  Kan.  846,  136 
Pac.  241;  on  rehearing,  92  Kan.  406,  140* 
Pac  876. 

The  facts  are  stated,  in  the  opinion. 

Messrs.   Ij.   W.   Keplinger  and  C.  W. 
Trickett  submitted  the  cause  for  plaintiflT 
in  error. 

Messrs.  Richard  J.  Higgins  and  Wil- 
liam H.  McCamish  submitted  the  cause- 
for  defendant  in  error. 

Mr.  Justice  McKenna  delivered  the 
opinion  of  the  court: 

This  action  originated  in  a  petition  for 
mandamus  filed  in  the  district  court  of 
Wyandotte  county,  Kansas,  by  defendant  in 


NoTB. — On  the  ^neral  subject  of  writs  of 
error  from  the  United  States  Supreme  Court 
to  state  courts — see  notes  to  Martin  v. 
Hunter,  4  L.  ed.  U.  S.  97;  Hamblin  v. 
Western  Land  Co.  37  L.  ed.  U.  S.  267;  Re 
Buchanan,  39  L.  ed.  U.  S.  884;  and  Kipley 
V.  Illinois,  42  L.  ed.  U.  S.  998. 

On  what  adjudications  of  state  courts  can 
be  brought  up  for  review  in  the  Supreme 
Court  of  the  United  States  by  writ  of  error 
120 


to  those  courts — see  note  to  Apex  Transp. 
Co.  V.  Garbade,  62  L.R.A.  513. 

On   parties   to   appellate   proceedings   in 
Federal  Supreme  Court — see  note  to  Amadeo- 
use   of   Pastor    Marquez    Co.    v.    Northern 
Assur.  Co.  60  L.  ed.  U.  S.  723. 

On  necessity  of  color  of  merit  in  Federal 
question  to  sustain  writ  of  error  to  state- 
court — see  note  to  Offield  v.  New  York,  N» 
H.  &  H.  R.  Co.  61  L.  ed.  U.  S.  231. 

289  v.  S^ 


1915. 


UNITED  STATES  FIDELITY  &  G.  CO.  ▼.  RIEFLEB. 


16-17 


error  agtinst  plaintiff  in  error,  ta  require 
^e  latter  to  account  for  the  sum  of  $30,- 
840.24,  alleged  to  be  due  defendant  in  error 
under  certain  taxing  statutes  of  the  state. 

Judgment  was  entered  for  defendant  in 
error,  which  was  affirmed  on  appeal  by  the 
supreme  court  of  the  state.  The  case  was 
then  brought  here. 

Motion  is  made  to  dismiss,  on  the  ground 
that  no  Federal  questicm  was  raised  or 
passed  on  by  the  state  court,  or  alternative- 
ly to  affirm  the  judgment. 

The  controversy  is  stated  by  the  supreme 
court  of  the  state  as  follows: 

"The  question  in  dispute  concerns  the 
disposition  of  the  penalties  imposed  by  law 
for  delinquency  in  the  payment  of  taxes 
levied  by  and  for  the  city.  In  substance  it 
is  this:  Is  the  county  required  to  reim- 
burse A  city  of  the  first  class  for  the 
amount  by  which  the  taxes  collected  for 
the  city  are  reduced  by  rebates  granted  for 
prompt  payment,  and  at  the  same  time  to 
pay  over  to  the  city  the  amount  collected 
as  penalties  for  delay  in  the  payment  of 
taxes  levied  by  the  city,  while  in  the  case 
of  taxes  levied  by  cities  of  the  second  and 
third  classes,  and  by  townships  and  school 
districts,  tlie  rebates  are  charged  to  the 
county  and  the  penalties  credited  to  it?" 
[90  Kan.  847,  136  Pac.  241.] 

The  question  was  answered  in  the  af- 
firmative, citing  and  construing  the  state 
statutes,  and  upon  a  consideration  of  the 
l^islative  power  of  the  state  over  its  munic- 
ipal subdivisions.  Plaintiff  in  error  urged 
and  now  urges  that  the  [16]  statutes  so 
construed  deprive  taxpayers  of  the  county 
who  reside  outside  of  cities  of  the  first  class 
of  property  without  due  process  of  law,  and 
deny  them  tlie  equal  protection  of  the  law. 

Plaintiff  in  error  is  not  impleaded  as  a 
taxpayer  nor  does  he  defend  as  such.  He 
is  sued  as  a  county  olficer  and  defends  by 
virtue  of  the  exercise  of  his  functions  as 
A  county  ollicer.  In  other  words,  he  de- 
fends by  virtue  of  laws  of  which  he  is  an 
instrument.  Constituted  by  the  laws  of 
the  state,  he  yet  attempts  to  resist  one  of 
its  laws.  Whether  he  may  do  so  is  purely 
a  local  question.  Smith  v.  Indiana,  191  U. 
8.  138,  48  L.  ed.  125,  24  Sup.  Ct.  Rep.  51. 
He  certainly  has  no  personal  interest  in 
the  litigation.  Braxton  County  Ct.  v.  West 
Virginia,  208  U.  S.  192,  52  L.  ed.  450,  28 
Sup.  Ct.  Hep.  275;  McCandless  v.  Pratt, 
211  U.  S.  437,  63  L.  ed.  271,  29  Sup.  Ct. 
Rep.  144;  Marshall  v.  Dye,  231  U.  S.  250, 
58  L.  ed.  206,  34  Sup.  Ct.  Rep.  92. 

If,  however,  plaintiff  in  error  is  not  es- 
topped by  that  consideration,  he  encounters 
another.  It  is  manifest  that  the  statute 
assailed  was  enacted  by  the  state  in  regu- 
lation of  its  municipalities,  and  the  power 
to  do  this  is  very  broad.  It  was  said  in 
•0  li.  ed. 


Chicago,  B.  &  Q.  R.  Co.  ▼.  Otoe  County,  16 
Wall.  667,  21  L.  ed.  375,  that  ''counties, 
cities,  and  towns  exist  only  for  the  con- 
Tcnient  administration  of  the  government. 
Such  organizations  are  instruments  of  the 
state,  created  to  carry  out  its  will."  This 
power  of  creation  and  control  may  be  exer- 
cised in  many  ways  and  may  give  rise  to 
actual  or  asserted  inequalities.  It  has  been 
exercised  to  enlarge  or  contract  the  boun- 
daries of  municipal  corporations,  invest 
tliem  with  special  powers,  divide  and  ap- 
portion their  property.  Atty.  Gen.  ex  rel. 
Kics  V.  Lowrey,  199  U.  S.  233,  50  L.  ed. 
167,  26  Sup.  Ct.  Rq>.  27;  Braxton  County 
Ct.  V.  West  Virginia,  supra.  It  would  be 
difficult  to  define  the  restrictions  upon  this 
power  of  control  and  keep  it  efficient.  It 
is  very  certain  that  the  Kansas  statute  does 
not  transcend  the  limitations.  We  think 
the  questions  raised  are  more  formal  than 
substantial,  and  the  writ  of  error  is  dis- 
missed. 


[17]     UNITED    STATES    FIDELITY    4 

GUARANTY  COMPANY 

▼. 

CHARLES  J.  RIEFLER  and  James  A.  Hall. 

(See  S.  C.  Reporter's  ed.  17-25.) 

Guaranty  —  notice  of  acceptance. 

A  bond  under  seal,  delivered  by  the 
obligors  to  the  obligee,  conditioned  upon 
the  indemnification  of  the  latter,  a  surety 
company,  for  all  loss  under  an  official  bond 
upon  which  the  surety  company  "has  be- 
come or  is  about  to  become  surety,"  is  a 
completed  contract  of  indemnity  or  guar- 
anty which  binds  the  obligors  without  any 
notice  that  it  has  been  accepted  and  acted 
upon  by  the  obligee. 

[For  other  cases,  see  Guaranty,  III.,  in  Digest 
Sup.  Ct.  1008.) 

[No.  11.1 

Argued  October  21,  1015.    Decided  Novem- 
ber 1,  1015. 

ON  A  CERTIFICATE  from  the  United 
States  Circuit  Court  of  Appeals  for  the 
Seventh  Circuit  presenting  questions  as  to 
whether  a  certain  instrument  was  a  com- 
pleted contract  of  indemnity  or  guaranty. 
Answered  in  the  affirmative. 
The  facts  are  stated  in  the  opinion* 

Mr.  A.  F.  Reichmann  argued  the  cause, 
and,  with  Messrs.  Noble  B.  Judah,  Monroe 

NoTB. — On  necessity  of  notice  of  accept- 
ance to  bind  guarantor — see  notes  tp  Wil- 
liam Deering  &  Co.  ▼.  Mortell,  16  L.R.A. 
(N.S.)  352;  J.  R.  Watkins  Medical  Co.  v. 
Brand,  33  L.R.A.(N.S.)  060;  W.  T.  Raw- 
leigh  Medical  Co.  v.  Laursen,  48  L.R.A. 
-(N.S.)  108;  and  Davis  Sewing  Mach.  Co. 
T.  Richards,  20  L.  ed.  U.  S.  480. 

Ill 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


Jj.  Willard,  Henry  M.  .Wolf,  and  Arthur  M.  i 
Cox,  filed  a.  brief  for  the  United  States  I 
Pidelity  k  Guaranty  Company: 

A  bond  of  indemnity  is  an  engagement  to 
secure  or  save  harmless  against  loss  or  dam- 
age of  a  specified  character ;  it  is  something 
^ven  to  a  person  to  prevent  his  suffering 
damage,  while  a  guaranty  is  a  promise  to 
answer  for  the  payment  of  some  debt  or 
the  performance  of  some  duty  in  the  case 
of  the  failure  of  anoth^  person  who  is  him- 
self in  the  first  Instance  liable  for  such 
payment  or. performance. 

14  Am.  ft  Eng.  Enc.  Law,  2d  ed.  p.  1127; 
16  Am.  ft  Eng.  Enc.  Law,  2d  ed.  pp.  168, 
169;  20  Cyc.  1397,  1400,  and  note  on  p. 
1402;  22  Cyc.  79,  80;  1  Brandt,  Suretyship 
ft  Guaranty,  3d  ed.  §  5 ;  Vandiver  v.  Pollak, 
107  Ala.  547,  64  Am.  St.  Rep.  118,  19  So. 
180. 

Bonds  of  indemnity  are  orginal  and  pri- 
mary obligations  not  within  the  statute  of 
frauds;  while  contracts  of  guaranty  are 
secondary  or  collateral  undertakings  and 
are  within  the  scope  of  the  statute. 

14  Am.  ft  Eng.  Enc.  Law,  2d  ed.  p.  1130; 
16  Am.  ft  Eng.  Enc.  Law,  2d  cd.  p.  IGO  \  20 
Cyc.  1402;  22  Cyc.  80;  1  Brandt,  Suretyship 
ft  Guaranty,  3d  ed.  §  5;  BeColyar,  Guaran- 
ties, Principal  ft  Surety,  p.  1;  Hawes  v. 
Murphy,  191  Mass.  469,  78  N.  E.  109 ;  Spur- 
rier V.  Nottingham,  7  Ky.  L.  Rep.  462; 
Campbell  v.  Pucket,  1  Posey,  Unrep.  Cas. 
(Tex.)  466;  Hartley  v.  Sandford,  66  K.  J. 
L.  40,  48  Atl.  1009;  HaU  ▼.  Weaver,  34  Fed. 
107;  Mcintosh-Huntington  Co.  v.  Reed,  80 
Fed.  464;  Horn  ▼.  Bray,  61  Ind.  655, 19  Am. 
Rep.  742;  Minick  v.  Huff,  41  Neb.  616,  69 
N.  W.  796;  Anderson  v.  Spence,  72  Ind.  316, 
37  Am.  Rep.  162;  Fidelity  ft  C.  Co.  v. 
Lawler,  64  Minn.  144,  66  N.  W.  143;  Boyer 
▼.  Soules,  106  Mich.  31,  62  N.  W.  1000; 
Smith  T.  Delaney,  64  Conn.  264,  42  Am.  St. 
Rep.  181,  29  Atl.  4U6;  Perley  v.  Spring.  12 
Mass.  297;  Aldrich  ▼.  Ames,  9  Gray,  76; 
Lucas  V.  Chamberlain,  8  B.  Mon.  276;  Jones 
T.  Shorter,  1  Ga.  204,  44  Am.  Dec.  649; 
Bonebright  t.  Pease,  3  Mich.  318 ;  Chapin  v. 
Merrill,'  4  Wend.  667;  Jones  v.  Bacon,  146 
N.  Y.  446,  40  N.  E.  216 ;  Rcsseter  v.  Water- 
man, 161  111.  169,  37  N.  E.  875;  Saint  v. 
Wheeler  ft  W.  Mfg.  Co.  96  Ala.  362,^6  Am. 
St.  Rep.  210,  10  So.  639;  Kearnes  ▼.  Mont- 
gomery, 4  W.  Va.  29. 

A  guarantee  must  ordinarily  exhaust  his 
remedies  against  the  person  primarily  liable 
before  resorting  to  his  guarantor;  but  an 
indemnitee  can  hold  his  indemnitor  without 
first  seeking  reimbursement  from  any  third 
person. 

Pingrey,  Suretyship  ft  Guaranty,  %  860; 
Page  T.  White  Sewing  Mach.  Co.  12  Tex. 
Civ.  App.  327,  34  S.  W.  988;  Reigart  v. 
White.  62  Pa.  438;  20  Cyc.  1446,  1463; 
122 


Springfield  t.  Boyle,  164  Mass.  591,  42  K. 
E.  333;  Kempton  v.  Coffin,  12  Pick.  129; 
Conery  t.  Cannon,  20  La.  Ann.  123;  22  Cyc. 
102;  Getty  v.  Schantz,  40  C.  C.  A.  660,  100 
Fed.  677;  Phenix  Ins.  Co.  v.  Louisville  ft 
N.  R.  Co.  8  Fed.  142;  Osborne  v.  Smith,  5 
McCrary,  487,  18  Fed.  126. 

An  indemnitee  must  have  actually  paid 
a  judgment  or  given  his  own  obligation  to 
the  creditor,  which  has  been  accepted  as 
payment,  before  he  can  maintain  an  action 
upon  the  instrument  of  indemnity;  while  a 
guarantee  may  maintain  an  action  against 
a  guarantor  to  compel  payment  of  the 
debt  itself. 

Central  Trust  Co.  v.  Louisville  Trust  Co. 
40  C.  C.  A.  530,  100  Fed.  545;  Rcsseter  T. 
Waterman,  151  111.  177,  37  N.  E.  875; 
Barclay  v.  Gooch,  2  Esp.  571;  Carter  v. 
Adamson,  21  Ark.  287;  Solary  v.  Webster, 
35  Fla.  363,  17  So.  646:  Hoy  v.  Hans- 
borough,  1  Frecm.  Ch.  (Miss.)  533;  Greg- 
ory v.  Hartley,  6  Neb.  356;  Aberdeen  v. 
Blackmar,  6  Hill,  324;  Hearn  v.  Lander, 
11  Bush,  669;  Miller  v.  Fries,  66  N.  J.  L. 
377,  49  Atl.  674;  Cochran  v.  Selling,  36  Or. 
333,  69  Pac.  329. 

While  a  guarantor's  undertaking  is  for 
the  benefit  of  the  creditor,  the  undertaking 
of  a  surety's  indemnitor  is  not.  The  cred- 
itor cannot  maintain  any  action  upon  it. 

United  States  use  of  Wood  v.  United  Sure- 
ty Co.  192  Fed.  994;  State  v.  St.  Louis  ft  S. 
F.  R.  Co.  126  Mo.  696,  28  S.  W.  1074 :  Texas 
Midland  R.  Co.  v.  Miers,  —  Tex.  Civ.  App. 
— ,  37  S.  W.  640. 

As  a  general  rule  an  indemnitor  is  nei- 
ther a  guarantor  nor  a  surety ;  he  is  a  prin- 
cipal, although  he  is  frequently  referred 
to  by  the  courts  as  a  surety. 

Wise  V.  Miller,  45  Ohio  St.  388,  14  N. 
E.  218;  Appleton  v.  Bascom,  3  Met.  169. 

Ilistoricallv,  contracts  of  indemnity  are 
creations  of  the  common  law,  and  are  usual- 
ly specialties  (except  the  implied  obliga- 
tion created  by  law  on  the  part  of  a  prin- 
cipal to  indemnify  his  surety  when  no  ex- 
press obligation  has  been  given) ;  while 
contracts  of  guaranty  are  commercial  con- 
tracts having  their  origin  in  the  rules  of 
the  law  merchant,  and  are  usually  simple 
contracts. 

Courtis  V.  Dennis,  7  Met.  610;  Edmonds- 
ton  v.  Brake,  6  Pet.  624,  8  L.  ed.  251;  Lee  v. 
Dick,  10  Pet.  482,  9  L.  ed.  503;  Dan.  Neg. 
Inst,  f  1766;  Bell  v.  Bruen,  1  How.  169, 
11  L.  ed.  80;  Lawrence  v.  McCalmont,  2 
How.  426,  11  L.  ed.  326;  Smith  v.  Dann, 
6  Hill,  643;  Lanusee  v.  Barker,  3  Wheat. 
148,  4  L.  ed.  366;  Kincheloe  v.  Holmes,  7 
B.  Mon.  6,  46  Am.  Dec.  41. 

Instruments  of  guaranty  (unlike  instru- 
ments of  indemiiity)   are  divided  into  two 

239  U.  8. 


19  Jo. 


UNITED  STATES  FIDSflTY  k  G.  CO.  v.  RIEFLER. 


elaucs:  (a)  overtures  or  offers  to  guar- 
antee and  (b)  absolute  guaranties. 

Pitman,  Principal  k  Surety,  p.  28;  De 
Colyar,  Guaranties,  Principal  k  Surety,  p. 
3;  14  Am.  k  Kng.  Enc.  Law,  2d  ed.  p.  1145; 
20  Cyc.  H04,  1407. 

The  doctrine  that  notice  of  acceptance  is 
accessary  to  bind  a  guarantor  applies  only 
to  instruments  which  are  overtures  or  offers 
to  guarantee. 

Davis  Sewing  Mach  Co.  v.  Richards,  115 
U.  8.  524,  29  L.  ed.  480,  6  Sup.  Ct.  Rep. 
173;  Russell  v.  Clark,  7  Cranch,  69,  3  T^. 
ed.  271;  Edmondston  v.  Drake,  5  Pet.  624, 

8  L.  ed.  251;  Douglass  v.  Reynolds,  7  Pet. 
113,  8  L.  ed.  626 ;  Lee  v.  Dick,  10  Pet.  482, 

9  L.  ed.  503;  Adams  ▼.  Jones,  12  Pet.  207, 
9  L.  ed.  1058;  Reynolds  v.  Douglass,  12 
Pet.  504,  0  L.  ed.  1178;  Barnes  Cycle  Co.  ▼. 
Reed,  FA  Feil.  003;  Steadman  v.  Guthrie,  4 
Met.  (Ky.)  1.57:  Kincheloe  v.  Holmes,  7  B. 
Mon.  r»,  4.1  Am.  Dec.  41 ;  Oaks  v.  Weller,  13 
Vt.  1U6,  37  Am.  Dec.  583;  Newman  v. 
Streator  Coal  Co.  19  111.  App.  594;  Ruffncr 
T.  Love,  33  111.  App.  601;  Neagle  v.  Sprague, 
63  111.  App.  25;  20  Cyc.  1404,  1405. 

The  rule  does  not  apply  to  instruments 
vhich  are  absolute  guaranties. 

Davis  V.  Wells,  F.  k  Co.  104  U.  S.  169, 
26  L.  ed.  686;  Wildes  ▼.  Savage,  1  Story, 
^  Fed.  Cas.  No.  17,653;  Kent  v.  Silver, 
47  C.  C.  A.  404,  108  Fed.  365;  Doud  v. 
National  Park  Bank,  4  C.  C.  A.  607,  2  U. 
a  App.  655,  54  Fed.  846;  Bond  v.  John  V. 
Farwell  Co.  96  C.  C.  A.  546,  172  Fed.  58; 
Cooke  V.  Orne,  37  111.  186;  Newcomb  Bros. 
Wall  Paper  Co.  v.  Emerson,  17  Ind.  App. 
482.  40  N.  E.  1018;  Sears  v.  Swift  k  Co. 
66  111.  App.  490;  American  Exch.  Nat.  Bank 
V.  Scaverns,  121  111.  App.  480;  Acorn  Brass 
Mfg.  Co.  V.  Gilmore,  142  111.  App.  567; 
Frost  ▼.  SUndard  Metal  Co.  215  111.  240, 
74  N.  E.  139;  Pressed  Radiator  Co.  v. 
Hughes,  165  III.  App.  80;  Bryant  v.  Stout, 
16  Ind.  App.  380,  44  N.  E.  68,  45  N.  E. 
343;  William  Deering  k  Co.  v.  Mortell,  21 
8.  D.  159,  16  L.R.A.(N.S.)  353,  110  N.  W. 
86;  Lane  v.  Mayer,  15  Ind.  App.  382,  44  N. 
E.  73;  Shows  v.  Steiner,  175  Ala.  363,  57 
8o.  700;  J.  R.  Watkins  Medical  Co.  v. 
Brand,  143  Ey.  468,  33  L.RJl.(N.S.)  960, 
136  S.  W.  867;  People's  Bank  v.  Stewart, 
152  Mo.  App.  314,  133  S.  W.  70;  J.  L.  Mott 
Iron  Works  v.  Clark,  87  S.  C.  199,  69  S. 
£.  227;  Bank  of  California  ▼.  Union  Pack- 
ing Co.  60  Wash.  456,  111  Pac.  573;  Emer- 
ion  Mfg.  Co.  V.  Tvedt,  19  N.  D.  8,  120  N. 
W.  1094;  Sheppard  v.  Daniel  Miller  Co.  7 
Ga.  App.  760,  68  S.  B.  451;  Sheffield  ▼. 
Whitfield,  6  Ga.  App.  762,  65  S.  E.  807; 
Booth  V.  Irving  Nat.  Exch.  Co.  116  Md.  668, 
82  Atl.  652;  McConnon  k  Co.  v.  Laursen, 
22  X.  D.  004,  135  N.  W.  213;  Furst  k  B. 
60  L.  ed. 


Mfg.  Co.  V.  Black,  111  Ind.  308,  12  N.  E. 
504. 

The  doctrine  of  notice  of  acceptance  is  not 
applicable  to  bonds  of  indemnity  or  to  any 
form  of  instrument  which  is  an  original 
undertaking.  ^A  bond  of  indemnity  or  other 
original  undertaking  when  executed,  deliv- 
ered, and  acted  upon  becomes  effective. 

Haupt  V.  Cravens,  56  Tex.  Civ.  App.  253, 
•120  S.  W.  541 ;  Mcintosh-Huntington  Co.  v. 
Reed,  89  Fed.  464;  Newcomb  Bros.  Wall 
Paper  Co.  v.  Emerson,  17  Ind.  App.  482,  46 
N.  E.  1018;  Wise  v.  Miller,  45  Ohio  St.  388, 
14  N.  E.  218;  Hall  v.  Weaver,  34  Fed.  104; 
Lane  v.  Mayer,  15  Ind.  App.  382,  44  N.  E. 
73;  Edward  B.  Bruce  Co.  v.  Lambou^,  123 
La.  969,  49  So.  659 ;  Haywood  v.  Townsend, 
4  App.  Div.  246,  38  N.  Y.  Supp.  517;  Singer 
Mfg.  Co.  V.  Freerks,  12  N.  D.  595,  98  N.  W. 
705;  Lachman  v.  Block,  47  La.  Ann.  505, 
28  L.R.A.  255,  15  So.  649;  Swope  v.  Forney, 
17  Ind.  385;  Saint  v.  Wheeler  k  W.  Mfg. 
Co.  95  Ala.  362,  36  Am.  St.  Rep.  210,  10 
So.  530;  Fidelity  Mut.  L.  Ins.  Co.  v.  Steg- 
all,  27  Okla.  151,  111  Pac.  389;  Wheeler  ▼. 
Rohrer,  21  Ind,  App.  477,  52  N.  E.  780; 
Page  V.  White  Sewing  Mach.  Co.  12  Tex. 
Civ.  App.  327,  34  S.  W.  988 ;  White  Sewing 
Mach.  Co.  ▼.  Powell,  25  Ky.  L.  Rep.  94,  74 
S.  W.  746;  Engler  v.  People's  F.  Ins.  Co.  46 
Md.  322;  Walker  v.  Brinkley,  131  N.  C.  17, 
42  S.  E.  333;  Klosterman  v.  Olcott,  25  Neb. 
382,  41  N.  W.  250;  FUla  v.  Ainsworth,  63 
Neb.  1,  93  Am.  St.  Rep.  420,  88  N.  W.  135; 
Bank  of  United  States  v.  Dandridge,  12 
Wheat.  64,  6  L.  ed.  552;  Bird  v.  Washburn, 
10  Pick.  223;  Boyd  v.  Agricultural  Ins.  Co. 
20  Colo.  App.  28,  76  Pac  986. 

It  is  not  necessary  that  the  indemnitors 
should  receive  any  benefit  as  a  considera- 
tion to  render  them  liable.  The  liability 
incurred  by  the  indemnitee  and  the  harm 
and  injury  suffered  by  it  constitute  a  valid 
and  sufficient  consideration  for  the  bond  of 
indemnity. 

Chapin  v.  Merrill,  4  Wend.  657 ;  Emerson 
V.  Slater,  22  How.  28,  16  L.  ed.  360. 

Mr.  Walter  McC.  Allen  argued  the 
cause,  and,  with  Mr.  Albert  Salzenstein,  filed 
a  brief  for  Charles  J.  Riefler  et  al. : 

The  instrument  in  suit  was  a  mere  offer, 
and  not  an  absolute  and  complete  obligation 
under  the  facts  certified  in  tiie  case. 

Davis  V.  Wells,  F.  k  Co.  104  U.  8.  159, 
26  L.  ed.  686;  Davis  Sewing  Mach.  Co.  ▼. 
Richards,  115  U.  S.  524,  29  L.  ed.  480,  6 
Sup.  Ct.  Rep.  173;  William  Deering  k  Co. 
V.  Mortell,  21  S.  D.  159,  16  L.R.A.(N.S.) 
353,  110  N.  W.  86;  Barnes  Cyde  Co.  ▼. 
Reed,  84  Fed.  603,  33  C.  C.  A.  646,  63  U.  S. 
App.  279,  91  Fed.  481;  20  Harvard  L.  Rev. 
486;  Lachman  v.  Block,  47  La.  Ann.  505, 
28  L.R.A.  255,  15  So.  649. 

The  instrument  in  suit  is  not  a  bond  of 

itz 


23,  24 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Temm, 


indemnity.  Wliile  under  the  facts  certified 
it  does  not  evidence  a  completed  contract 
of  any  kind,  yet  as  an  instrument  it  is,  as 
to  the  defendants  who  signed  it,  as  dis- 
tinguished from  Dooling,  who  did  not  sign 
it,  one  of  guaranty,  and  not  ^f  indemnity. 

16  Am.  &  £ng.  Enc.  Law,  2d  ed.  p.  168; 
22  Cyc  79,  80;  14  Am.  k  Eng.  Enc.  Law,  2d 
ed.  p.  1128;  Pingrey,  Suretyship  k  Guar- 
anty, §  4;  20  Cyc.  1397,  1400;  Keames  v. 
Montgomery,  4  W.  Va.  29;  Courtis  t.  Den- 
nis, 7  Met.  518;  Hall  v.  Weaver,  34  Fed. 
106;  Brandt,  Suretyship  k  Quaranty,  §  1; 
15  Laws  of  England  (Halsbury)  p.  444. 

Mutuality  of  assent  is  essential  to  every 
contract,  and  requires  the  assent  of  a  party 
to  whom  a  proposal  is  made  to  be  signified 
to  the  party  making  it,  in  order  to  make  a 
binding  contract.  In  this  case  there  was 
no  signification  of  assent  or  notice  of  ac- 
ceptance to  the  defendant  of  the  instrument 
in  suit,  and  hence,  as  said  instrument  was, 
under  the  facts  certified,  merely  offered  for 
acceptance  or  rejection,  it  never  became  a 
binding  obligation,  regardless  of  the  ques- 
tion as  to  whether  it  was  in  form  an  instru- 
ment of  guaranty  or  of  indemnity. 

Davis  V.  Wells,  F.  k  Co.  104  U.  S.  150, 
26  L.  ed.  686;  Davis  Sewing  Mach.  Co.  v. 
Richards,  115  U.  S.  524,  29  L.  ed.  480,  6 
Sup.  Ct.  Rep.  173;  Lachman  v.  Block,  47 
La.  Ann.  505,  28  L.RJI.  255,  15  So.  649; 
William  Deering  k  Co.  v.  Mortell,  21  S.  D. 
159,  16  L.R.A(N.S.).  853,  110  N,  W.  86; 
Bisliop  T.  Eaton,  161  Mass.  496,  12  Am.  St. 
Rep.  437,  37  N.  E.  665;  22  Cyc.  81;  Anson, 
Contr.  15,  16;  Frost  v.  Standard  Metal  Co. 
215  111.  240,  74  N.  E.  139,  116  111.  App. 
642;  Ruffner  ▼.  Love,  33  IlL  App.  601;  New- 
man V.  Streator  Coal  Co.  19  111.  App.  602; 
Sears  v.  Swift  k  Co.  66  111.  App.  496;  Meyer 
V.  Ruhstadt,  66  111.  App.  346;  Acme  Mfg. 
Co.  V.  Reed,  197  Pa.  359,  80  Am.  St.  Rep. 
832,  47  Atl.  205. 

The  fact  that  the  instrument  in  suit  was 
in  the  form  of  a  bond  under  sea)  does  not 
take  it  out  of  the  general  rule  requiring 
notice  of  acceptance. 

Davis  V.  Wells,  F.  k  Co.  104  U.  S.  159, 
26  L.  ed.  680;  Hall  v.  Weaver,  34  Fed.  104; 
Burke  v.  Delaney,  153  U.  S.  235,  38  L.  ed. 
700,  14  Sup.  Ct.  Rep.  816;  Jordan  v.  Davis, 
108  lU.  336;  Philadelphia,  W.  k  B.  R.  Co. 
v.  Howard,  13  How.  834,  14  L.  ed.  168; 
Rountree  v.  Smith,  152  111.  493,  38  N.  E. 
6d0;  Stanley  v.  White,  160  111.  605,  43  N. 
E.  729;  Ware  v.  Allen,  128  U.  S.  597,  32 
L.  ed.  665,  9  Sup.  Ct.  Rep.  174;  Pawling  v. 
United  States,  4  Cranch,  219,  2  L.  ed.  601; 
4  Wigmore,  Ev.  §§  2408,  2410,  2442;  Curry 
V.  Colburn,  99  Wis.  319»  67  Am.  St.  Rep. 
860,  74  N.  W.  778. 
124 


Mr.  Justice  Holmes  delivered  the  opin- 
ion of  the  court: 

The  facts  certified  are  simple.  One  Dool- 
ing, being  required  to  give  an  official  bond» 
applied  in  Springfield,  Illinois,  to  an  agent 
of  the  plaintiff  in  error,  a  bonding  com- 
pany having  its  home  office  in  Baltimore^ 
Maryland,  was  informed  that  the  company 
would  become  his  surety  only  on  condition 
that  he  furnish  indenmity,  and  was  handed 
a  printed  form  of  indemnity  bond.  The  de- 
fendants in  error,  at  Dooling's  request,, 
signed  and  sealed  this  bond  for  the  purposes 
therein  expressed,  and  authorized  Dooling 
to  deliver  it  to  the  company  through  its 
Springfield  agent,  which  Dooling  did.  The 
agent,  who  is  not  shown  to  have  had  au- 
thority to  execute  bonds,  forwarded  it  for 
acceptance.  The  company,  relying  upon  it, 
became  surety  for  Dooling.  One  of  the 
recitals  of  the  bond  was  that  the  company 
''has  become  or  is  about  to  become  surety,, 
at  the  request  of  the  said  Frank  £.  Dooling, 
on  a  certain  bond  in  the  sum  of  Five  ThcAi- 
sand  Two  Hundred  Dollars,  wherein  Frank 
£.  Dooling  is  principal,  as  Recorder  of 
Springfield  District  Court  No.  25,  Court  of 
Honor,  located  at  Springfield,  Illinois,  a 
copy  of  which*  bond  is  hereto  attached  No. 
52012-5,  which  bond  is  made  a  part  hereof/' 
The  condition  was  that  Dooling  should  keep 
the  company  indemnified  for  all  loss  by 
reason  of  its  suretyship.  A  copy  of  the 
company's  bond  was  not  attached  and  at 
the  date  of  the  indenmity  bond  had  not  been 
executed.  Dooling  was  not  a  party  to  the 
indemnity  bond.  The  defendants  in  error 
received  no  pecuniary  consideration  for  their 
act  and  were  not  notified  of  the  acceptance 
of  their  bond  or  of  the  execution  of  the  other 
by  the  company.  The  questions  propounded 
are:  [24]  "(1)  Was  the  instrument 
which  was  signed  by  Riefier  and  Hall,  and 
relied  on  by  the  company,  a  completed  con- 
tract of  indemnity  or  guaranty?  (2)  Or 
was  it  merely  an  offer  to  become  indem- 
nitors or  guarantors,  requiring  notice  of 
acceptance  by  the  company,  in  accordance 
with  Davis  v.  Wells,  F.  k  Co.  104  U.  a 
159,  20  L.  ed.  686,  and  Davis  Sewing  Mach. 
Co.  v.  Richards,  115  U.  S.  524,  29  L.  ed. 
480,  0  Sup.  Ct.  Rep.  1737  (3)  And,  if  in  sub- 
stance the  instrument  was  merely  an  offer, 
does  the  fact  that  it  was  in  the  form  of  a 
bond  under  seal  take  it  out  of  the  rule  of 
those  authorities?" 

If  the  bond  in  suit  had  been  delivered  di- 
rectly to  the  company  and  had  been  pro- 
nounced satisfactory  there  would  have  been 
no  need  to  notify  Riefier  and  Hall  of  the 
company's  subsequently  executing  the  Dool- 
ing bond.  Riefier  and  Hall  assumed  an 
obligation  in  present  words  to  indemnify 

2^  U.  8. 


1916. 


8TEIKFELD  v.  ZECKENDORF. 


24-20 


the  companj  against  an  exactly  identified 
•uretyahip  that  the  company  had  g^ne  or 
was  about  to  go  into,  as  they  stated.    The 
company  was  about  to  go  into  it  and  went 
into  it.     If  Riefler  and  Hall  had  made  only 
a  parol  offer  in  the  same  terms,  the  com- 
pany, by  becoming  surety,  would  have  fur- 
nished the  consideration  that  would  have 
converted  the  offer  into  a  contract;  but  no- 
tice is  held  necessary  in  Davis  Sewing  Mach. 
Co.  V.  Richards.    If  it  had  been  a  covenant, 
the  company's  act  would  have  satisfied  the 
condition  upon  which  the  covenant  applied. 
O'Brien  t.  Boland,  166  Mass.  481,  483,  44 
N.  £.  602.  As  it  was  a  bond,  the  company's 
altering  into  its  undertaking  in  like  man- 
ner furnished  the  subject-matter  to  which 
the  obligation   by   its   terms   applied.     In 
the  case  of  either  covenant  or  bond  there 
WAS  no  need  for  notice  that  an  event  had 
liappened  that  the  defendants'  contract  con- 
templated as  sure  to  happen,  if  it  had  not 
theady  come  to  pass. 

The  only  ground  for  hesitation  is  that 
seemingly  the  bond  in  suit  might  have  been 
rejected  by  the  company  as  unsatisfactory, 
snd  that  therefore  it  may  be  argued  [25] 
that  Riefler  and  Hall  were  entitled  to  notice 
that  it  had  been  accepted.  But  we  are  of 
opinion  that,  in  the  circumstances  of  this 
case,  it  is  reasonable  to  understand  that 
they  took  the  risk.  They  were  chargeable 
with  notice  that  by  their  act  their  bond  had 
come  to  the  hands  of  the  company.  The 
bond  on  its  face  contemplated  that  the  com- 
pany would  accept  it  and  act  upon  it  at 
once,  and  disclosed  the  precise  extent  of  the 
obligation  assumed.  It  seems  to  us  that 
when  such  a  bond,  carrying,  as  a  specialty 
does,  its  complete  obligation  with  the  paper, 
ii  put  by  the  obligors  into  the  hands  of  the 
obligee,  and  in  fact  is  accepted  by  it,  no- 
tice is  not  necessary  that  a  condition  sub- 
sequent to  the  delivery,  by  which  the  obligee 
night  have  made  it  ineffectual,  has  not 
been  fulfilled.  The  contract  is  complete 
without  the  notice  (Butler's  Case,  3  Coke, 
25,  26b;  Xenos  v.  Wickham,  L.  R.  2  H.  L. 
296,  36  L.  J.  C.  P.  N.  S.  313,  16  L.  T.  N. 
8.  800,  16  Week.  Rep.  38,  13  £ng.  Rul.  Cas. 
422;  Pollock,  Contr.  8th  ed.  7,  8),  and  we 
Me  no  commercial  reason  why  the  prin- 
^ples  ordinarily  governing  contracts  under 
<et]  should  not  be  applied  (Bird  v.  Wash- 
burn, 10  Pick.  223).  In  Davis  T.  Wells,  F. 
^  Ck).  the  guaranty  was  an  open,  continu- 
^g  one  up  to  $10,000,  but  it  was  under  seal, 
^d  was  held  binding,  although  additional 
lessons  were  advanced. 
We  answer  the  first  question:     Yea. 

Mr.  Justice  McKenna  dissents. 
•0  L.  ed. 


[26]  ALBERT  8TEINFEIJ),  R.  K.  Shel- 
ton,  J.  N.  Curtis,  Silver  Bell  Copper  Com- 
pany, and  Mammoth  Copper  Company, 
Appts.,  and  Plffs.  in  Err., 

V. 

LOUIS    ZECKENDORF    and    Hiram    W. 
Fenner,  Receiver. 

(See  S.  C.  Reporter's  ed.  26-31.) 

Appeal  ^  mode  of  review. 

1.  Writ  of  error  is  the  only  mode  of  re- 
viewing in  the  Federal  Supreme  Court  a 
decree  of  the  supreme  court  of  the  state 
of  Arizona  which  affirmed  a  decree  of  the 
trial  court,  entered  pursuant  to  the  man- 
date of  the  Federal  Supreme  Court,  which 
had  previously  reversed  a  decree  in  the 
case  on  an  appeal  taken  while  Arizona  was 
still  a  territory,  and  had  remanded  the  case 
to  the  state  court  as  successor  of  the  ter- 
ritorial court  for  such  further  proceedings 
as  might  not  be  inconsistent  with  the  opin- 
ion of  the  Federal  Supreme  Court. 

[For  other  cases,  see  Appeal  and  Error,  II.  b. 
In  Digest  Sup.  Ct.  1908.] 

Appeal  ^  mandate  ^  compliance. 

2.  The  only  question  open  in  the  Fed- 
eral Supreme  Court  when  reviewing  a  judg- 
ment entered  pursuant  to  the  mandate  of 
that  court  on  a  prior  appeal  which  re- 
manded the  case  "for  such  further  proceed- 
ings as  may  not  be  inconsistent  with  the 
opinion  of  this  court"  is  whether  or  not  the 
judgment  below  is  inconsistent  with  such 
opinion;  and  where  it  plainly  is  not,  there 
is  no  reason  for  disturbing  the  judgment. 
[For  other  canes,  see  Appeal  and  Error,  5565- 

6583,  6599-5604,  In  Digest  Bop.  Ct.  1908.] 


[No.  239.] 

Argued  October  19,  and  20,  1915. 
November  1,  1915. 


Decided 


APPEAL  from,  and  IN  ERROR  to,  the 
Supreme  Court  of  the  State  of  Arizona 
to  review  a  decree  which,  on  a  third  ap- 
peal, dismissed  an  appeal  from  a  decree  of 
the  Superior  Court  in  and  for  Pima  County, 
in  that  state,  entered  pursuant  to  the  man- 
date of  the  Federal  Supreme  Court  on  a 
former  appeal.  Appeal  dismissed.  Judg- 
ment affirmed  on  writ  of  error. 

See  same  case  below,  15  Ariz.  335,  138 
Pac.  1044. 

The  facts  are  stated  in  the  opinion. 

Messrs.  James  M.  Beck  and  Francis  J. 
Heney  argued  the  cause,  and,  with  Mr. 
Eugene  S.  Ives,  filed  a  brief  for  appellants 
and  plaintiffs  in  error: 

The  jurisdiction  of  this  court  on  the 
former  appeal  was  limited  to  the  single 
question  of  law.  Do  the  findings  of  fact 
support  the  judgment!     And  consequently 

Note. — On  distinction  between  appeal  and 
writ  of  error — see  note  to  Miners'  ^ank  v. 
Iowa,  13  L.  ed.  U.  S.  867. 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Temm, 


that  was  the  subject-matter  of  the  proceed- 
ing here. 

Zeckendorf  v.  Steinfeld,  225  U.  S.  445,  56 
L.  ed.  1156,  32  Sup.  Ct.  Rep.  728;  Eagle 
Min.  &.  Improv.  Co.  ▼.  Hamilton,  218  U. 
S.  513,  54  L.  ed.  1131,  31  Sup.  Ct.  Rep.  27; 
Idaho  k  O.  Land  Improv.  Co.  v.  Bradbury, 
132  U.  S.  513,  33  L.  ed.  436,  10  Sup.  Ct.  Rep. 
177. 

This  court,  in  the  exercise  of  such  appel- 
late jurisdiction,  cannot  and  will  not  supply, 
by  intendment  or  inference,  any  missing  ma- 
terial fact,  even  if  there  were  sufficient  evi- 
dence or  sufficient  probative  facts  in  the 
findings,  from  which  the  lower  court  might 
have  inferred  such  missing  material  fact. 
To  do  so  would  be  to  usurp  the  functions  of 
the  trial  court,  whose  indispensable  duty  it 
is  to  make  that  inference  of  fact  for  itself. 
This  well-settled  principle  of  law  applies  in 
all  classes  of  cases  in  which  the  appellate 
jurisdiction  of  this  court  is  limited  by  regu- 
latory acts  of  Congress  to  questions  of  law 
only.  No  distinction  is  made  on  account  of 
the  nature  or  character  of  the  case  or  of 
the  method  by  which  it  was  tried  in  the 
court  of  original  jurisdiction,  or  of  the 
name  applied  to  the  procedure  by  which  it 
reached  this  court  for  review.  The  rule 
applies  alike  to  appeals  from  Federal  courts 
in  admiralty  cases ;  to  writs  of  error  to  Fed- 
eral courts  in  common-law  actions,  whether 
tried  with  or  without  a  jury;  and  to  ap- 
peals from  the  court  of  claims;  and  to  writs 
of  error  to  the  highest  appellate  court  of  a 
state;  as  well  as  to  both  appeals  from  and 
writs  of  error  to  territorial  supreme  courts. 

Sun  Mut.  Ins.  Co.  v.  Ocean  Ins.  Co.  107 
U.  S.  485,  27  L.  ed.  337,  1  Sup.  Ct.  Rep. 
582;  Burr  v.  Des  Moines  R.  &  Nav.  Co.  1 
Wall.  99,  17  L.  ed.  561;  Hecht  v.  Boughton, 
105  U.  S.  235,  20  L.  ed.  1018;  Lincohi  v. 
French,  105  U.  S.  614,  26  L,  ed.  1189; 
French  v.  Edwards,  21  Wall.  147,  22  L. 
ed.  534;  Ex  parte  French,  01  U.  S.  423, 23  L. 
ed.  249 ;  Ex  parte  Medway,  23  Wall.  504.  23 
L.  ed.  160;  Dower  v.  Richards,  151  U.  S.  659, 
38  L.  ed.  306,  14  Sup.  Ct.  Rep.  452,  17  Mor. 
Min.  Rep.  704;  Wilson  v.  Merchants'  Loan 
&  T.  Co.  183  U.  S.  121,  46  L.  ed.  113,  22 
Sup.  Ct.  Rep.  55;  Raimond  v.  Terrebonne 
Parish,  132  U.  S.  192,  33  L.  ed.  309,  16 
Sup.  Ct.  Rep.  57;  Lehnen  v.  Dickson,  148 
U.  S.  71,  37  L.  ed.  373,  13  Sup.  Ct.  Rep. 
481;  Barnes  v.  Williams.  11  Wheat.  415, 
6  L.  ed.  508;  Powers  v.  United  States,  56 
C.  C.  A.  128,  119  Fed.  563;  The  E.  A.  Pack- 
er, 140  U.  S.  360,  35  L.  ed.  453,  11  Sup.  Ct. 
Rep.  794;  Eagle  Min.  k  Improv.  Co.  v. 
Hamilton,  218  U.  S.  513,  54  L.  ed.  1131,  31 
Sup.  Ct.  Rep.  27;  Idaho  &  O.  Land  Improv. 
Co.  V.  Bradford,  132  U.  S.  613,  33  L.  ed. 
436,  10  Sup.  Ct.  Rep.  177. 

The  case  of  French  v.  Edwards,  21  Wall. 
126 


147,  22  L.  ed.  534  (as  construed  by  this 
court  in  the  case  of  Ex  parte  French,  91  U. 
S.  423,  23  L.  ed.  249),  and  the  case  of  Ex 
parte  Medway,  23  Wall.  504,  23  L.  ed.  160, 
are  on  all  fours  with  the  case  at  bar. 

The  mandates  of  this  court  are  to  be  in> 
terpreted  according  to  the  subject-matter  of 
the  proceeding  here,  and,  if  possible,  so  aa 
not  to  cause  injustice. 

Wayne  County  v.  Kennicott,  94  U.  S. 
499,  24  L.  ed.  260. 

Whenever  a  trial  court  fails  to  find  any- 
material  fact  by  reason  of  a  wrong  theory 
of  the  case,  adopted  either  by  itself  or  an 
intermediate  appellate  court,  the  court  of 
last  resort,  if  it  reverses  the  judgment, 
sliould  direct  or  at  least  authorize  a  new 
trial  to  prevent  injustice  to  appellee  or  de- 
fendant in  error. 

Kdmonston  v.  McLoud,  16  N.  Y.  543; 
Griffin  v.  Marquaidt,  17  N.  Y.  28:  Ball  v. 
Rankin,  23  Okla.  801,  101  Pac.  1105. 

\Vhen  an  appellate  court,  on  .the  evidence 
as  it  is  presented  in  the  record,  or  on  find- 
ings of  fact  which  are  conclusive  upon  it, 
reverses,  generally,  the  judgment  of  the 
lower  court,  an  appellee  or  defendant  in 
error  is  entitled  as  a  matter  of  right  to  a 
retrial  of  the  case,  and  the  mandate  of  thia 
court  should  be  interpreted  accordingly. 

Lincoln  v.  French,  105  U.  S.  614.  20  L. 
ed.  1189;  Elliott,  App.  Proc.  §  580;  Talcott 
V.  Delta  County  Land  &  Cattle  Co.  19  Colo. 
App.  11,  73  Pac.  256;  Falkner  v.  Hendy, 
107  Cal.  49,  40  Pac.  21,  386;  Stearnes  v. 
Afjuirre,  7  Cal.  443;  Prentice  v.  Crane,  240 
III.  238,  88  N.  E.  654;  Ryan  v.  Tomlinson, 
39  Cal.  639. 

Sliould  the  court,  however,  conclude  that 
its  opinion  and  decision  on  the  former  ap- 
peal must  be  interpreted  as  in  effect  as  in- 
struction to  the  trial  court  to  enter  judg- 
ment against  Steinfeld  on  the  first  cause  of 
action,  then,  nevertheless,  that  judgment  is 
erroneous,  and  is  too  large. 

Re  W^ashington  &  G.  R.  Co.  140  U.  S.  92, 
35  L.  ed.  340,  11  Sup.  Ct.  Rep.  673 ;  Himely 
V.  Rose,  5  Cranch,  313,  3  L.  ed.  Ill;  Mc- 
Mannomy  v.  Chicago,  D,  &  \.  R.  Co.  167 
111.  497,  47  N.  E.  712. 

Messrs.  Edwin  A.  Meserve  and  Frank 
H.  Hereford  argued  the  cause  and  filed  a 
brief  for  appellee  and  defendant  in  error 
Louis  Zeckendorf: 

When  a  case  has  once  been  decided  by 
this  court  on  appeal  and  remanded,  what- 
ever was  before  this  court  and  disposed  of 
by  its  decree  is  considered  as  finally  settled. 

Re  Potts,  166  U.  S.  263-268,  41  L.  ed. 
994-996,  17  Sup.  Ct.  Rep.  520;  Stewart  v. 
Salamon,  07  U.  S.  361,  24  L.  ed.  1044;  The 
Lady  Pike  (Pearce  v.  Germania  Ins.  Co.) 
96  U.  S.  461,  24  L.  ed.  672;  Re  Sanford 

289  U.  8. 


191a. 


8TEINFELD  v.  2ECKEXD0RF. 


Fork  A  Tool  Co.  160  U.  8.  247.  40  L.  ed. 
414,  16  Sup.  Ct.  Rep.  291;  Wayne  County 
▼.  Kennicott,  94  U.  8.  499.  24  L.  ed.  260; 
Sherman  v.  Ward,  9  Arix.  327,  83  Pac.  356; 
Snyder  v.  Pima  County,  6  Ariz.  41,  58  Pac. 
6;  Humphrey  ▼.  Baker,  103  U.  8.  736,  26 
L.  ed.  456;  Mackall  v.  Richards,  116  U.  S. 
45,  29  L.  ed.  558,  6  Sup.  Ct.  Rep.  234; 
Kingsbury  v.  Buckner,  134  U.  8.  671,  33 
Lw  ed.  1055,  10  Sup.  Ct.  Rep.  638;  Gaines 
T.  Rugg  (Gaines  v.  Caldwell)  148  U.  8. 
228,  37  L.  ed.  432,  13  Sup.  Ct.  Rep.  611; 
Aspen  Min.  &  Smelting  Co.  v.  Billings,  150 
U.  S.  37,  37  L.  ed.  988,  14  Sup.  Ct.  Rep. 
4;  United  States  v.  New  York  Indians,  173 
U.  &  464,  43  L.  ed.  769,  19  Sup.  Ct.  Rep. 
487. 

So  conclusive  are  all  matters,  whether  of 
law  or  of  fact,  presented  to  this  court  and 
decided  by  it  on  appeal,  that  it  will  not 
permit  even  the  vital  question  of  jurisdic- 
tion to  be  raised  in  a  case  after  it  has  de- 
cided it  and  by  mandate  sent  it  back  to 
the  lower  court. 

Skillem  v.  May,  6  Cranch,  267,  3  L.  ed. 
220,  first  appeal,  4  Cranch,  137,  2  L.  cd. 
574;  Gaines  v.  Rugg  (Gaines  v.  Caldwell) 
148  U.  S.  228,  37  L.  ed.  432,  13  Sup.  Ct. 
Rep.  611. 

There  was  no  intimation  in  the  opinion  of 
this  court  in  this  case  of  an  intention  to 
authorize  or  grant  a  new  trial,  or  to  au- 
thorize in  any  other  way  the  taking  of  new 
testimony.  Under  similar  circumstances 
this  court  has  repeatedly  asserted  that  ap- 
pellants have  no  such  right. 

Gaines  v.  Rugg,  supra;  2  Enc.  U.  8.  Sup. 
Ct.  Rep.  412-415. 

And  even  when  this  court  remanded  a 
ease  with  instructions  to  grant  a  new  trial, 
it  held  that  the  lower  court  had  no  power 
to  consider  at  such  new  trial  either  law  or 
facts  decided  in  the  case  by  this  honorable 
court. 

Wayne  County  v.  Kennicott,  94  U.  S.  498, 
24  L.  ed.  260. 

If  authority  were  needed  to  show  that  the 
mandate  in  this  case  is  not  open  to  any  such 
construction  as  appellants  attempt  to  place 
upon  it,  we  cite  the  language  of  the  man- 
date of  this  court  on  first  appeals,  and  the 
interpretation  of  that  language  by  this 
court  on   second  appeals  in  the  following 


C.  ft  A.  Potts  ft  Co.  V.  Creager,  155  U.  8. 
597-610,  39  L.  ed.  275-280,  15  Sup.  Ct. 
Rep.  194,  2d  appeal,  166  U.  S.  263,  41  L. 
•d.  994,  17  Sup.  Ct.  Rep.  620;  Stewart  v. 
Salamon,  94  U.  8.  434,  437,  24  L.  ed.  276, 
276.  2d  appeal,  97  U.  S.  361-365.  24  L.  ed. 
1044-1046;  The  Lady  Pike,  21  Wall.  1-17, 
22  L.  ed.  499-504,  2d  appeal,  96  U.  8.  461, 
24  J^  ed.  672;  Sanford  Fork  ft  Tool  Co.  v. 
Howe,  B.  ft  Co.  157  U.  S.  312,  39  L.  ed.  713, 
«0  L.  ed. 


,  15  Sup.  Ct.  Rep.  621,  2d  appeal,  160  U.  S. 
247-259,  40  L.  ed.  414-417,  16  Sup.  Ct. 
Rep.  291;  Kennicott  v.  Wayne  County,  16 
Wall.  452-471,  21  L.  ed.  319-322,  2d  appeal, 
94  U.  8.  499,  24  L.  ed.  260;  Camou  v. 
United  States,  171  U.  8.  277,  43  L.  ed.  163, 
18  Sup.  Ct.  Rep.  855,  2d  appeal,  184  U.  8. 
572,  46  L.  ed.  694,  22  Sup.  Ct.  Rep.  505. 

There  is  no  distinction  between  cases  here 
on  appeal  where  the  facts  are  presented  by 
findings  in  the  nature  of  a  special  verdict 
from  those  where  the  facts  are  brought  up 
by  a  full  transcript  of  the  evidence.  In 
support  of  this  statement  we  cite  the  fol- 
lowing cases  coming  up  from  territorial 
courts  and  from  the  court  of  claims,  in 
which  cases  this  court,  after  a  consideration 
of  the  case  on  appeal,  upon  the  law  and 
facts  of  the  case,  has  reversed  the  action  of 
the  lower  court,  and  instructed  the  lower 
court  to  enter  a  final  and  definite  judgment 
upon  the  law  and  the  facts: 

Stringfellow  v.  Cain,  99  U.  8.  610,  25  L. 
ed.  421 ;  Ivinson  v.  Button,  98  U.  8.  79,  25 
L.  ed.  GG ;  First  Xat.  Bank  v.  Yankton  Coim- 
ty,  101  U.  S.  129.  25  L.  ed.  1046 ;  TUton  v. 
Cofield.  93  U.  S.  163,  23  L.  ed.  858;  Stoffela 
V.  Nugent,  217  U.  S.  499.  54  L.  ed.  856,  30 
Sup.  Ct.  Hep.  600;  Quinn  v.  United  States. 
99  U.  8.  30.  25  L.  ed.  269;  Union  P.  R. 
Co.  V.  United  States,  99  U.  8.  402.  25  L. 
ed.  274;  I  nitod  States  v.  Perryman.  100  U 
8.  235.  25  L.  ed.  645;  United  SUtes  v. 
Murray,  100  U.  S.  .536.  25  L.  ed.  756;  Unit- 
ed SUtes  V.  Shewsbury.  90  U.  S.  5U8.  23 
L.  ed.  78;  United  States  v.  Landers.  92 
U.  S.  77,  23  L.  ed.  603;  United  Stotes  v. 
Diekelman.  92  U.  8.  520.  23  L.  ed.  742; 
Garfielde  v.  United  States,  93  U.  8.  242,  23 
L.  edi  779;  Lake  Superior  ft  M.  R.  Co.  v. 
United  States,  93  U.  8.  442,  23  L.  ed.  965. 

Mr.  Sellm  M.  Franklin  argued  the 
cause,  and.  with  Mr.  Edwin  F.  Jones,  filed 
a  brief  for  appellee  and  defendant  in  error 
Hiram  W.  Fenner: 

As  the  state  supreme  court  found  that  the 
judgment  of  the  superior  court  was  in  ac- 
cordance with  the  mandate  of  this  court, 
and  its  own  mandate,  the  appeal  from  that 
judgment  was  properly  dismissed. 

Stewart  v.  Salamon,  97  U.  8.  361.  24  L. 
ed.  1044;  Humphrey  v.  Baker,  103  U.  8. 
736.  26  L.  ed.  456;  Mackall  v.  Richards.  116 
U.  8.  45.  29  L.  ed.  658,  6  Sup.  Ct.  Rep.  234; 
Kingsbury  v.  Buckner,  134  U.  8.  671.  33 
L.  ed.  1055.  10  Sup.  Ct.  Rep.  638;  Gaines  v. 
Rugg  (Gaines  v.  Caldwell)  148  U.  8.  228, 
37  L.  ed.  432.  13  Sup.  Ct.  Rep.  611 ;  Aspen 
Min.  ft  Smelting  Co.  v.  Billings,  150  U.  8. 
31-38,  37  L.  ed.  986-989.  14  Sup.  Ct.  Rep. 
4;  United  States  v.  New  York  Indians.  178 
U.  S.  464,  43  L.  ed.  769.  19  Sup.  Ct.  Rep. 
487. 

The   findings  of   fact   of  the  territorial 

197 


28-30 


SUPBJeafE  COURT  OF  THE  UNITED  STATES. 


Oct.  TwaMf 


court,  made  under  the  proYisions  of  this 
act  of  CongresSy  are  concluaiYe  upon  this 
court. 

Bear  Lake  ft  River  Waterworks  k  Irrig. 
Co.  V.  Garland,  164  U.  S.  1,  19,  41  L.  ed. 
327,  334,  17  Sup.  Ct.  Rep.  7;  Harrison  v. 
Perea,  168  U.  S.  311,  42  L.  ed.  478,  18  Sup. 
Ct.  Rep.  129;  Eagle  Min.  k  Improv.  Co.  v. 
Hamilton,  218  U.  S.  513,  54  L.  ed.  1131,  31 
Sup.  Ct.  Rep.  27 ;  Oildersleeve  v.  New  Mexi- 
co Min.  Co.  161  U.  S.  573,  40  L.  ed.  812,  16 
Sup.  Ct.  Rep.  663;  Haws  v.  Victoria  Cop- 
per Min.  Co.  160  U.  S.  303,  40  L.  ed.  436, 
16  Sup.  Ct.  Rep.  282;  Idaho  k  0.  Land 
Improv.  Co.  v.  Bradbury,  132  U.  S.  509,  33 
L.  ed.  433,  10  Sup.  Ct.  Rep.  177;  Eilers  v. 
Boatman,  111  U.  S.  356,  28  L.  ed.  454,  4 
Sup.  Ct.  Rep.  432,  15  Mor.  Min.  Rep.  471; 
Zeckendorf  v.  Johnson,  123  U.  S.  617,  31 
L.  ed.  277,  8  Sup.  Ct.  Rep.  261. 

The  findings  of  fact  so  made  by  the  su- 
preme court  of  the  territory  in  accordance 
with  the  act  of  Congress,  being  conclusive 
on  this  honorable  court,  must  necessarily 
be  conclusive  on  all  of  the  courts  subordi- 
nate to  this  court. 

A  second  appeal  or  writ  of  error  in  the 
same'  case  only  brings  up  for  review  the 
proceedings  of  the  trial  court  subsequent  to 
the  mandate,  and  does  not  authorize  a  re- 
consideration of  any  question  either  of  law 
or  fact  which  was  considered  or  determined 
on  the  first  appeal  or  writ  of  error. 

Re  Potts,  166  U.  S.  263-268,  41  L.  ed. 
994-996,  17  Sup.  Ct.  Rep.  520;  Re  Sanford 
Fork  k  Tool  Co.  160  U.  S.  247-269,  40 
L.  ed.  414-417,  16  Sup.  Ct.  Rep.  291;  Haley 
▼.  Kilpatrick,  44  C.  C.  A.  102,  104  Fed.  647. 

Mr.  Justice  Holmes  delivered  the  opin- 
ion of  the  court: 

This  case  first  came  here  by  appeal  from 
the  supreme  court  of  Arizona  while  Arizona 
was  still  a  territory.  Before  the  decision 
by  this  court,  Arizona  became  a  state,  and 
the  judgment,  so  far  as  now  in  controversy, 
having  been  reversed,  the  case  was  remand- 
ed "for  such  further  proceedings  as  may 
not  be  inconsistent  with  the  opinion  of  this 
court," — the  formula  usual  in  cases  com- 
ing from  a  state.  225  U.  S.  445,  459,  56 
L.  ed.  1156,  1164,  32  Sup.  Ct.  Rep.  728. 
The  ground  for  the  present  attempt  to  re- 
open the  merits  is  that  the  state  court  has 
misinterpreted  the  mandate  that  it  received. 
Martin  v.  Hunter,  1  Wheat.  304,  354,  4  L. 
ed.  97,  109.  See  Julian  v.  Central  Trust 
Co.  193  U.  S.  93,  48  L.  ed.  629,  24  Sup.  Ct. 
Rep.  399. 

The  case  is  stated  at  length  in  the  former 
decision.  All  [29]  that  is  necessary  to  ex- 
plain the  present  question  may  be  put  in 
shorter  form.  The  suit  was  brought  by  Zeck- 
endorf as  a  stockholder  in  the  Silver  BelP 
J33 


Mining  Company  to  recover  money  alleged 
to  belong  to  the  company  and  appropriated 
by  Steinfeld.  There  was  a  further  cause  of 
action  alleged,  but  that  has  been  disposed 
of.  The  money  represents  the  proceeds  of 
the  Silver  Bell  mine  and  a  group  of  mines 
adjoining  the  Silver  Bell  and  purchased  by 
Steinfeld,  it  was  assumed  by  the  parties,  as 
trustee  for  the  company.  Steinfeld  sold  all 
the  mines  for  $515,000,  $115,000  cash,  $400,- 
000  in  notes  for  $100,000  each,  and  his  ac- 
tion was  confirmed.  At  the  time  of  the  con- 
veyance to  the  purchaser  it  was  agreed  by 
a  contract  in  writing  that  the  purchase 
price  should  belong  to  the  Silver  Bell  Cop- 
per Company,  and  in  the  same  instrument 
it  was  provided  that  the  four  notes  should 
be  held  by  Steinfeld  as  trustee  and  as  se- 
curity against  his  personal  obligations  in 
Ihe  matter.  Steinfeld  received  the  cash 
und  the  proceeds  of  the  first  two  notes,  paid 
certain  liabilities  of  the  company,  and  de- 
posited the  residue,  except  $50,000  attached 
in  his  hands,  in  the  Bank  of  California  in 
his  own  name. 

In  December,  1903,  Zeckendorf  brought 
a  suit  to  restrain  the  turning  over  of  the 
deposited  funds  by  the  bank  to  Steinfeld, 
and  on  December  26,  1903,  a  stockholders' 
meeting  was  held  at  which  all  parties  were 
represented  and  a  vote  of  rescission  was 
passed  upon  which  the  present  question 
arises.  For  Steinfeld  it  is  argued  that  the 
whole  agreement  was  rescinded.  The  other 
side  contends  that  the  rescission  went  only 
to  the  clause  giving  Steinfeld  a  right  to  the 
personal  custody  of  the  money.  The  di- 
rectors, consisting  of  Steinfeld  and  his 
creatures,  although  not  understanding  the 
rescission  to  go  beyond  the  indemnity 
clause,  passed  a  vote  behind  Zeckendorf 's 
back  under  which  the  proceeds  of  the  sale 
were  divided  and  one  half  given  to  Stein- 
feld. After  the  judgment  of  this  court, 
the  state  court  conceived  itself  bound  by 
the  mandate  to  [30]  enter  judgment  for  the 
plaintiff,  and  did  so.  It  now  is  contended 
on  Steinfeld's  part  that  he  never  has  had 
his  day  in  court  to  present  his  case;  for, 
it  is  said,  the  territorial  court  simply  ruled 
as  matter  of  law  that  the  vote  of  rescission 
rescinded  the  contract  in  ioto,  and  this 
court,  if  it  thought,  as  it  did,  that  the  rul- 
ing was  wrong,  properly  could  do  no  more 
than  to  send  the  case  back  for  a  finding  of 
fact  as  to  the  true  purport  of  the  vote.  If 
this  should  be  done,  Steinfeld  alleges  that 
he  has  evidence  that  he  wishes  to  present. 

A  court  is  not  necessarily  precluded  from 
construing  a  document  because  the  con- 
struction is  affected  by  facts  and  eircum- 
rttances  not  open  to  dispute.  But  the  ques- 
tion now  is  not  whether  this  court  was 
right  or  wrong,  but  what  it  did.    The  man- 

289  U.  8. 


1B13. 


MANILA.  UJVESTUENT  CO.  i.  TRAMMELL. 


I.  II 


4ate  iaaued  within  tLe  memoi;  of  prearnt 
mcmlierB  of  tUe  court,  and  there  is  no  doubt ' 
that  the  court  below  did  what  we  intended 
that  it  aliQuld.  In  the  time  of  Edward  I., 
Ueughatn  interrupted  ditcuuiou  of  the 
EUt.  Weattn.  II.,  by  uying,  "We  know  it 
better  than  you,  for  we  made  it."  Nt  glotex 
feint  U  Slatut;  novl  U  tavomt  meaa  dt 
«iu».  lar  «ou*  leg  jcimet.  Y.  B.  33  Edw. 
L  Mirli.  Rolla  ed.  83.  However  it  may  be 
H  to  a  statute,  the  abjection  seems  reason- 
able  wlien  applied  to  a  mandate  that  hoi 
beeu  followed  as  it  was  meant,  and  the  fol- 
lowing words,  among  others,  show  clearly 
.sough  that  we  exprested  our  intent;  "In 
ear  view  the  facts  found  ahow  that  .  ,  . 
the  aubaeqnent  attempt  to  rescind  the  action 
bj  whicli  the  proceeds  of  the  sale  of  the 
AigUsh  group  of  mine!  became  the  prop- 
■rt;  of  the  Silver  Bell  Company,  and  to 
give  the  proceeds  to  Stcinfeld,  must  be  held 
for  naught."  225  U.  S.  4S0.  It  the  terri- 
tory bad  not  become  a  state,  a  Judgment 
would  have  been  ordered.  The  more  re- 
ttrred  phrase  was  used  by  reason  of  the 
diange,  but  with  no  change  in  what  con- 
•istency  with  our  opinion  was  deemed  to  re- 

We  Bee  no  reason  for  Buppoaing  that  cases 
were  intended  [31]  to  come  to  this  court 
from  Arizona  in  otiier  than  the  uaual  form. 
Therefore  in  any  event  tbia  appeal  would 
have  to  be  dismissed.  To  meet  this  poa- 
aibility  ■  writ  of  error  was  allowed  at  the 
lait  moment.  We  have  considered  the  rec- 
ord aa  it  made  up  under  the  writ.  Uut. 
apart  from  technical  objections  that  have 
been  urged,  the  only  question  that  would 
b*  open  is  whether  the  judgment  below  was 
inconsiatent  with  the  opinion  of  this  court; 
snd,  aa  it  very  plainly  is  not,  there  is  no 
reason  for  diaturbin<;  it.  Our  mandate  was 
not  concerned  with  the  allowance  of  attor- 
-Bcya'  fees  and  some  other  matters  that  were 
argued,  Jind  therefore  they  present  no  Fed. 
4r»l  queation  and  need  not  be  considered. 

Appeal  diamiiaed. 

Judgment  affirmed. 


Is  presented  by  a  bill  which  seeks  to  estab- 
liah  a  trust  iu  real  property  upon  th« 
ground  that  the  board  of  trustees  of  tb* 
uternal  improvement  fund  of  florida,  after 
having  eontraeted  to  convey  the  land  in 
question  to  complainants,  afterward!,  by 
formal  resolution,  repudiated  its  former  ao- 
tion,  refused  to  recognize  the  alleged  truat, 
declared  complainants'  title  to  be  null  and 
void,  and  conveyed  a  part  of  the  land  to 
otheTt,  which  action  by  such  board  aa  an 
agency  of  the  state  is  asserted  to  amount  to 
a  tabmg  of  complsinants'  property  without 
due  process  of  law,  contrary  to  U.  S.  Const., 
14th  Amend.,  since  the  allegations  relied 
upon  to  give  iurisdiction  show  a  breach  of 
contract  merely,  and  bring  the  case  within 
the  principles  of  prior  decisions  of  the  Fed- 
eral Supreme  Court. 

[For   other   cases,    Me    Courts    iB9-*U,    In 
Dlsest  Bup.   Ct.   ISOS.) 

[No.  250.J 


MANILA  INVESTMENT  COMPANY  et  ■!., 
AppU., 

TASK  TRAMUELL  et  a1.,  aa  Truatees,  etc. 

(Bm  S.  a  Reporter's  ed.  31-33.) 

Vederal  oonrta  —  Jarladlctlon  —  trlTo- 
lous  Federal  qaeatlon. 

No  real  and  substantial  controversy 
Involving  the  construction  or  etfect  of  the 
Federal  Constitution  which  would  support 
■Hm  jnrisdietion  of  a  Federal  district  court 
••  If.  ed. 


APPEAL  from  the  District  Court  of  tha 
United  SUtes  for  the  Southern  Dis- 
trict of  Florida  to  review  a  decree  whicli 
dismissed,  for  want  of  Jurisdiction,  the  bill 
in  a  suit  to  establish  a  truat  in  real  prop* 
erty.    Affirmed. 

Uessra  N.  B.  K.  PetUnglll  and  Arllitw 
P.  Odlln  submitted  the  cause  for  appel- 
lants: 

It  has  often  happened  that  jurisdiction 
has  been  retained  t«  decide  a  doubtful  Fed- 
eral queation  even  when,  upon  full  consid- 
eration, complainant's  rights  have  been  de- 
termined to  be  without  the  constitutional 
protection  claimed. 

Field  V.  Barber  Asphalt  Paving  Co.  1M 
(J.  8.  618,  4B  L.  ed-  1142,  24  Sup.  Ct.  Rep. 
784)  Fayerweather  v.  Ritch,  195  U.  8.  276, 
2S9,  49  L.  ed.  193,  210,  25  Sup.  Ct.  Rep. 
68;  North  American  Cold  Storage  Co.  v. 
Chicago,  211  U.  S.  306,  63  h.  ed.  195,  211 
Sup.  Ct.  Rep.  101,  15  Ann.  Cas.  276)  Siler 
V.  Louisville  L  N.  B.  Co.  213  U.  8.  176, 
190,  53  I.,  ed.  753,  76T,  29  Sup.  Ct.  Rep. 
451. 

Whether  or  not,  upon  full  consideration, 
this  court  may  decide  appellants  to  be  en- 
titled to  the  protection  of  the  "due-procew" 
clause  of  the  14th  Amendment,  the  denial 
of  the  right  to  such  protection  should  not 
be  affirmed  without  that  full  consideration. 

Louisville  ft  N.  R.  Co.  v.  Melton,  218  U. 
S.  3B,  49,  64  L.  ed.  921,  926,  47  L.B.A. 
(N.S.)  84,  30  Sup.  Ct.  Rep.  676.  See  also 
Raymond  v.  Chicago  Union  Traction  Co. 
207  U.  S.  20,  35.  52  L.  ed.  78,  87,  28  Sup. 
Ct  Rep.  T,  12  Ann.  Cas.  767. 
.  The  allegations  of  our  bill  bring  the  case 
well  within  a  long  line  of  the  decisions  of 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oor.  TtMUp 


iimflmr  Action  hy  administrative  boarda»  or 
other  goremmental  agencies,  constitute  a 
wrong  within  the  inhibiUon  of  the  14th 
Amendment* 

Citizens'  Sar.  ft  L.  Asso.  t.  Topekia,  20 
WalL  666,  668,  22  L.  ed.  456,  461;  David- 
ion  ▼.  New  Orleans,  06  U.  S.  07,  102,  24 
L.  ed.  616,  618;  Cole  t.  LaGrange,  118  U. 
a  1,  4,  28  L.  ed.  806,  807,  6  Sup.  Ct.  Rep. 
416;  Comeliiis  t.  Kessel,  128  U.  S.  466,  32 
L.  ed.  482,  0  Sup.  Ct.  Rep.  122;  Pennoyer  v. 
McConnaughty,  140  U.  S.  1,  36  L.  ed.  363, 
11  Sup.  Ct  Rep.  600;  Noble  v.  Union  River 
Logging  R.  Co.  147  U.  S.  166,  37  L.  ed.  123, 
13  Sup.  Ct  Rep.  271;  Scott  v.  McNeal,  164 
U.  S.  34,  60,  38  L.  ed.  806,  003,  14  Sup. 
Ct  Rep.  1108;  Missouri  P.  R.  Co.  t.  Ne- 
braska,  164  U.  S.  403,  417,  41  L.  ed.  480, 
406,  17  Sup.  Ct  Rep.  130;  Chicago,  B.  k 
Q.  R.  Co.  T.  Chicago^  166  U.  S.  226,  236, 
41  L.  ed.  070,  084,  17  Sup.  Ct  Rep.  681; 
Delaware,  L.  ft  W.  R.  Co.  v.  Pennsylvania, 
108  U.  S.  341,  368,  40  L.  ed.  1077,  1083,  26 
Sup.  Ct  Rep.  660;  Raymond  v.  Chicago 
Union  Traction  Co.  207  U.  S.  20,  62  L.  ed. 
78,  28  Sup.  Ct.  Rep.  7,  12  Ann.  Cas.  767; 
Home  Teleph.  ft  Teleg.  Co.  t.  Los  Angeles, 
227  U.  S.  278,  67  L.  ed.  610,  33  Sup.  Ct. 
Rep.  312;  Vicksburg  Waterworks  Co.  v. 
Vicksburg,  186  U.  8.  81,  46  L.  ed.  815,  22 
Sup.  Ct  Rep.  686;  WalU  Walla  v.  Walla 
Walla  Water  Co.  172  U.  S.  7,  43  L.  ed.  341, 
10  Sup.  Ct  Rep.  77. 

Mr.  Thomas  F.  West,  Attorney  General 
of  Florida,  and  Mr.  B.  J.  L'Enf^Ie  sub- 
mitted the  cause  for  appellees.  Mr.  P.  H. 
Odom  was  on  the  brief: 

It  is  necessary  that  the  bill  should  clearly 
state  and  show  that  a  Federal  question  is 
actually  involred.  The  mere  suggestion 
that  such  a  question  is  involved  or  likely  to 
be  involved  is  not  sufficient.  The  bill  must 
state  in  positive  language  facts  showing  the 
manner  and  connection  in  which  the  Fed- 
eral question  has  arisen. 

Western  U.  Teleg.  Co.  v.  Ann  Arbor  R.  Co. 
178  U.  S.  230,  44  L.  ed.  1052,  20  Sup.  Ct. 
Rep.  867;  Little  York  Gold-Washing  ft 
Water  Co.  v.  Keyes,  06  U.  S.  100,  24  L.  ed. 
656;  Blackburn  v.  Portland  Gold  Min.  Co. 
176  U.  S.  671,  44  L.  ed.  276,  20  Sup.  Ct 
Rep.  222,  20  Mor.  Min.  Rep.  358;  Lampasas 
V.  Bell,  180  U.  S.  276,  46  L.  ed.  527,  21  Sup. 
Ct  Rep.  368;  Press  Pub.  Co.  v.  Monroe,  164 
U.  S.  106,  41  L.  ed.  367, 17  Sup.  Ct.  Rep.  40; 
Hanford  v.  Davies,  163  U.  S.  273,  41  L.  ed. 
167,  16  Sup.  Ct  Rep.  1061;  McCain  v.  Des 
Moines,  174  U.  S.  168,  43  L.  ed.  036,  10  Sup. 
Ct  Rep.  644;  Oregon  Short  Line  ft  U.  N. 
R.  Co.  V.  Skottowe,  162  U.  S.  400,  40  L.  ed. 
1048,  16  Sup.  Ct.  Rep.  860;  Florida  C.  ft  P. 
R.  Co.  V.  Bell,  176  U.  S.  321,  44  L.  ed.  486, 
20  Sup.  Ct.  Rep.  300;  4  Enc  U.  8.  Sup. 
Ct.  Rep.  002,  note  26. 
130 


The  facts  must  clearly  show  the  nature  of 
the  suit,  and  it  must  plainly  appear  thait 
the  action  arises  under  the  Constitutioii^ 
laws,  or  treaties  of  the  United  Statea. 
There  must  be  a  real  and  substantial  dis- 
pute as  to  the  effect  or  construction  of  the 
Constitution  or  of  some  treaty  of  the  United 
States  upon  which  the  determination  of  the 
case  depends. 

McCain  v.  Des  Moines,  174  U.  S.  160,  4S 
L.  ed.  036,  10  Sup.  Ct  Rep.  644;  Shrevepori 
V.  Cole,  120  U.  S.  36,  32  L.  ed.  680,  0  Sup. 
Ct  Rep.  210;  New  Orleans  v.  Benjamin,  16S 
U.  S.  411,  38  L.  ed.  764,  14  Sup.  Ct  Rep. 
006. 

The  mere  averment  that  a  question  exists 
under  the  Constitution  of  the  United  Statea 
is  not  sufficient  to  give  jurisdiction,  where 
the  question  is  so  wanting  in  merit  as  to 
be  frivolous  or  without  any  support  what- 
ever. 

Farrell  v.  O'Brien  (O'Callaghan  t» 
O'Brien)  100  U.  S.  80,  60  L.  ed.  101,  26 
Sup.  Ct  Rep.  727. 

The  repudiation  by  a  public  officer  of  a 
contract  or  grant,  even  if  based  upon  the 
unconstitutionality  of  a  statute,  as  the  bill 
alleges,  is  not  a  denial  of  due  process  of 
law  within  the  purview  of  the  Constitution. 
All  the  rights  of  the  appellants  which  have 
existed  still  exist,  and  can  be  enforced  in 
any  court  of  competent  jurisdiction. 

St.  Paul  Gaslight  Co.  v.  St  Paul,  181  U» 
S.  142,  45  L.  ed.  788,  21  Sup.  Ct.  Rep.  575 ; 
Dawson  v.  Columbia  Ave  Sav.  Fund,  S.  D. 
Title  ft  T.  Co.  107  U.  S.  178,  49  L.  ed.  713,. 
25  Sup.  Ct.  Rep.  420;  McCormick  v.  Okla- 
homa City,  236  U.  S.  657,  50  L.  ed.  771» 
35  Sup.  Ct.  Rep.  466 ;  Ramapo  Water  Co.  v. 
New  York,  236  U.  S.  579,  69  L.  ed.  731,  36 
Drainage  Co.  v.  Steams,  220  U.  S.  462,  55 
L.  ed.  644,  31  Sup.  Ct  Rep.  462. 

The  mere  violation  of  law  by  a  state 
agency  is  not  a  denial  of  due  process  of  law. 

Barney  v.  New  York,  193  U.  S.  430,  4a 
L.  ed.  737,  24  Sup.  Ct.  Rep.  502;  Virginia 
V.  Rives,  100  U.  S.  313,  26  L.  ed.  667,  S 
Am.  Crim.  Rep.  624;  Civil  Righto  Cases,  10» 
U.  S.  3,  27  L.  ed.  836,  3  Sup.  Ct.  Rep.  18; 
Missouri  v.  Dockery,  191  U.  S.  166,  48  L. 
ed.  133,  63  L.R.A.  671,  24  Sup.  Ct.  Rep.  53 ; 
5  Enc.  U.  S.  Sup.  Ct  Rep.  546,  notes  4  and 
6. 


Memorandum  opinion  by  Mr.  Justice 
Day,  by  direction  of  the  court : 

This  case  was  begun  in  the  district  court 
of  the  United  States  for  tbe  southern  dis- 
trict of  Florida,  upon  a  bill  praying  to  have 
the  title  to  certoin  lands  decreed  to  be  held 
in  trust  for  complainants  by  the  board  of 
trustees  of  the  internal  improvement  fund 
of  Florida,  and  to^  recover  lands  deeded  to 
others,  but  likewise  held  in  trust  for  com- 

230  U.  S. 


1916. 


TRUAX  V.  RAICH. 


82,  U 


plainanU.  The  court  below  dismissed  the 
biU  for  want  of  jurisdictioii. 

An  exAmination  of  the  bill  shows  that  the 
ground  of  recovery  rests  upon  the  allegation 
that  the  trustees  contracted  to  convey  the 
lands  in  question  to  the  complainants,  and 
afterwards,  by  formal  resolution,  the  board 
repudiated  its  former  action,  and  refused  to 
recognize  the  alleged  trust,  and  declared 
the  complainants'  title  null  and  void.  Com- 
plainants contend  that  this  action  by  tne 
trustees,  as  an  agency  of  the  state,  in  re- 
pudiation of  its  former  action,  and  the  con- 
vejance  of  part  of  the  land  to  others,  in 
violation  of  the  trust,  constituted  a  taking 
of  its  property  without  due  process  of  law, 
n  violation  of  the  provisions  of  the  14th 
Amendment.  This  is  the  only  ground  of 
Federal  jurisdiction  insisted  upon. 

The  case  presented  no  real  and  substan- 
tial controversy  involving  the  construction 
or  effect  of  the  Federal  Constitution.  The 
allegations  relied  upon  to  give  jurisdiction 
■how  a  breach  of  contract  merely,  and  bring 
the  case  within  the  principles  decided  by  this 
eourt  in  8t.  Paul  Gaslight  [33]  Co.  v.  St. 
Paul,  181  U.  8.  142,  45  L.  ed.  788,  21  Sup. 
Ct  Rep.  575 ;  Dawson  v.  Columbia  Ave.  Sav. 
Fund,  S.  D.  Title  k  T.  Co.  197  U.  8.  178, 
49  L.  ed.  713,  25  Sup.  Ct.  Rep.  420;  Shawnee 
Sewerage  Drainage  Co.  v.  Steams,  220  U.  8. 
462,  55  L.  ed.  544,  31  Sup.  Ct.  Rep.  452; 
McCormick  v.  Oklahoma  City,  236  U.  8.  657, 
59  L.  ed.  771,  35  Sup.  Ct.  Rep.  455. 

Affirmed. 


WILLIAM  TRUAX,  Sb.,  Wiley  E.  Jones, 
Attorney  General  of  the  State  of  Arizona, 
and  W.  G.  Gilmore,  County  Attorney  of 
Cochise  County,  Arizona,  Appts., 

V. 

MIKE  RAICH. 
(See  8.  C.  Reporter's  ed.  33-44.) 

States  —  imniiuitty  from  suit  —  suit 
acAinst  state  officers. 

1.  A  suit  by  an  alien  to  restrain  the 
tttomey  general  and  county  attorney  from 
enforcing  to  his  injury  the  Arizona  anti- 


alien  labor  law  of  December  14,  1914,  which 
he  asserts  is  repugnant  to  the  Federal  Con- 
stitution, cannot  be  regarded  at  a  laii 
against  the  state. 

[For  other  cases,  see  States,  IX.  c,  2,  In  Di- 
gest Sup.  Ct.  1908.] 

Injanction  —  restraining  crimliial  pro* 
ceedinga. 

2.  Equity  has  jurisdiction  to  restrain 
the  criminal  prosecution  of  an  employer  un« 
der  the  Arizona  anti-alien  labor  law  of  De- 
cember 14,  1914,  at  the  instance  of  an  allien 
employee  who'  aillegea  that  the  act  vioUtea 
the  Federal  Constitution  and  that  its  en- 
forcement will  result  in  his  immediate  dia-' 
charge  from  employment,  although  such  em« 
ployment  may  be  one  at  will,  irather  than 
for  a  term. 

[For  other  cases,  see  Injunction,  I.  d»  la  Di- 
gest Sop.  Ct.  1908.] 

Constitutional  law  —  equal  protection 

of  the  laws  —  discrimination  agalnat 

aliens  —  classification. 

3.  The  discrimination  against  aliens 
lawfully  resident  in  the  state,  which  is  pro- 
duced by  the  provisions  of  Aria,  act  of  De- 
cember 14,  1914,  that  every  employer  of 
more  than  five  workers  at  any  one  time» 
"regardless  of  kind  or  class  of  work  or  sex 
of  workers  shall  employ  not  less  than  80 
per  cent  qualified  electors  or  native-born 
citizens  of  the  United  States  or  some  sub- 
division thereof,"  renders  the  statute  in- 
valid under  U.  8.  Const.,  14th  Amend.,  as 
denying  the  equal  protection  of  the  laws, 
and  such  statute  cannot  be  justified  as  an 
exercise  of  the  power  of  the  state  to  make 
reasonable  classifications  in  legislating  to 
promote  the  health,  safety,  morals,  and 
welfare  of  those  within  its  jurisdiction. 
[For  other  cases,  see  Constitutlonnl  Law,  lY. 

a,  2,  b,  In  Digest  Sup.  Ct.  1908.] 

[No.  361.] 

Argued  October  15,  1915.    Decided  Novem- 
ber 1,  1915. 

APPEAL  from  the  District  Court  of  the 
United  States  for  the  District  of  Ari- 
zona to  review  a  decree  enjoining  the  en- 
forcement .  of  the  Arixona  anti-alien  labor 
law.    Affirmed. 
See  same  case  below,  219  Fed.  273. 
The  facte  are  stated  in  the  opinion, 

Mr.  licslle  C.  Hardy  and  Mr.  Wiley  F. 
Jones,  Attorney  General  of  Arizona,  argued 


Note. — Generally,  on  suits  against  a  state 

see  notes  to  Murdock  Parlor  Grate  Co. 
V.  Com.  8  L.R.A.  399;  Carr  v.  State,  11 
L.RJi.  370;  Beers  v.  Arkansas,  15  L.  ed. 
U.  8.  991 ;  and  Hans  ▼.  Louisiana,  33  L.  ed. 
U.  &  842. 

On  suits  against  state  officers  as  suits 
sgainst  a  state — see  notes  to  Sanders  v. 
Saxton,  1  IaILA.(N.S.)  727;  Ex  parte 
Young,  13  L.R.A.(N.S.)  932;  Louisville  k 
N.  R.  Co.  V.  Burr,  44  L.R.A.(N.S.)  189; 
and  Beers  v.  Arkansas,  15  L.  ed.  U.  8.  991^ 

As  to  injunction  to  restrain  acts  of  public 
•9  li.  ed. 


officers — see  note  to  Mississippi  v.  Johnson, 
18  L.  ed.  U.  8.  487. 

On  injunction  against  criminal  proceed- 
ings— see  notes  to  Crighto  v.  Dahmer,  21 
L.R.A.  84;  Hall  v.  Ihinn,  25  L.RJ^.(N.8.) 
193;  and  Denton  v.  McDonald,  34  L.EJL 
(N.S.)   454. 

As  to  power  of  state,  under  the  14th 
Amendment  to  the  United  States  Constitu- 
tion, to  deny  to  aliens  the  right  to  engage 
in  a  lawful  oocupation— see  notes  to  Com. 
V.  Hana,  11  L.RJ^.(N.8.)  799;  People  v. 
Crane,  L.RJL1916D»  569. 

181 


36 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Term, 


the  cause,  and,  with  Messrs.  George  W. 
Harben,  J.  Addison  Hicks,  and  W.  B.  Cleary, 
filed  a  brief  for  appellants: 

The  servant  cannot  complain  for  the  mas- 
ter of  a  threatened  injury  to  the  latter  by 
public  officers  of  the  state  of  Arizona,  and  to 
this  extent  an  injunction  against  the  insti- 
tution of  criminal  proceedings  against  the 
master  at  the  instance  of  the  servant  is  con- 
trary to  the  powers  of  a  court  of  equity. 

McCabe  v.  Atchison,  T.  A  S.  F.  R.  Co. 
235  U.  S.  151,  60  L.  ed.  160,  35  Sup.  Ct 
Rep.  60;  Davis  &  F.  Mfg.  Co.  v.  Los  An- 
geles, 180  U.  S.  207,  47  L.  ed.  778,  23  Sup. 
Ct.  Rep.  408. 

The  law  in  question  is  a  valid  exercise 
of  the  police  power  of  the  state  because  it 
is  a  law  enacted  to  preserve  the  safety  and 
welfare  of  the  state  and  its  citizens. 

Patsone  v.  Pennsylvania,  232  U.  S.  138, 
58  L.  ed.  530,  34  Sup.  Ct.  Rep.  281;  Greer 
V.  Connecticut,  161  U.  S.  510,  40  L.  ed.  703, 
16  Sup.  Ct.  Rep.  600;  Blythe  v.  Hinckley, 
180  U.  S.  333,  45  L.  ed.  557,  21  Sup.  Ct. 
Rep.  300;  McCready  v.  Virginia,  04  U.  S. 
301,  24  L.  ed.  248';  United  States  v.  Cruik- 
shank,  02  U.  S.  542,  23  L.  ed.  588;  Noble 
State  Bank  v.  Haskell,  210  U.  S.  104,  55 
L.  ed.  112,  32  L.R.A.(N.S.)  1062,  31  Sup. 
Ct.  Rep.  186,  Ann.  Cas.  1012A,  487;  Noble 
State  Bank  v.  Haskell,  210  U.  S.  575,  55 
h.  ed.  341,  32  L.RJ^.(N.S.)  1065,  31  Sup. 
Ct.  Rep.  200. 

Mr.  Alexander  Britton  argued  the 
cause,  and,  with  Messrs.  Evans  Browne  and 
Francis  W.  Clements,  filed  a  brief  for  ap- 
pellee : 

The  14th  Amendment  to  the  Constitution 
of  the  United  States  is  not  confined  to  the 
protection  of  citizens  of  the  United  States, 
but  is  universal  in  its  application  to  all 
citizens  within  the  territorial  jurisdiction 
without  regard  to  any  difference  of  race, 
color,  or  nationality,  and  the  promise  of 
equal  protection  of  the  law  is  equivalent  to 
the  pledge  of  the  protection  of  equal  laws. 

Yick  Wo  V.  Hopkins,  118  U.  S.  356-360, 
30  L.  ed.  220-226,  6  Sup.  Ct.  Rep.  1064; 
Barbier  v.  Connolly,  113  U.  S.  27,  31,  28 
L.  ed.  023,  024,  5  Sup.  Ct.  Rep.  357;  Mis- 
souri V.  Lewis  (Bowman  v.  Lewis)  101  U. 
S.  22,  25  L.  ed.  080. 

It  is  equally  true  that  among  the  rights 
so  guaranteed  to  resident  aliens,  as  well  as 
citizens,  is  that  of  freely  contracting  to  ren- 
der service  and  perform  labor,  and  to  fol- 
low any  ordinary  lawful  vocation.  No  im- 
pediment should  be  interposed  to  these 
rights  of  everyone,  except  such  as  are  ap- 
plied to  the  same  pursuits  by  others  imder 
like  circumstances  and  conditions. 

People  V.  Williams.  180  N.  Y.  131,  12 
L.R.A.(N.S.)  1130,  121  Am.  St.  Rep.  854, 
81  N.  E.  778,  12  Ann.  Cas.  708;  Lochner  v. 
132 


New  York,  108  U.  S.  45,  40  L.  ed.  037,  25 
Sup.  Ct.  Rep.  530,  3  Ann.  Cas.  1133, 
Butcher's  Union  S.  H.  &  L.  S.  L.  Co.  v. 
Crescent  City  L.  S.  L.  k  S.  H.  Co.  Ill  U.  S. 
746-762,  28  L.  ed.  585-588,  4  Sup.  Ct.  Rep. 
652;  Allgeyer  v.  Louisiana,  165  U.  S.  578, 
41  L.  ed.  832,  17  Sup.  Ct  Rep.  427 ;  Powell 
v.  Pennsylvania,  127  U.  S.  678-684,  32  L. 
ed.  253-250,  8  Sup.  Ct.  Rep.  002,  1257; 
Slaughter-House  Cases,  16  Wall.  36,  21  L. 
ed.  304;  Coppage  v.  Kansas,  236  U.  S.  1,  59 
L.  ed.  441,  L.KA.1015C,  960,  35  Sup.  Ct. 
Rep.  240.  i 

The  law  of  Arizona  contravenes  the  14th 
Amendment  to  the  Constitution  of  the  Unit- 
ed States,  and  is  not  a  proper  exercise  of 
the  police  power  of  the  state. 

People  y.  Crane^  165  App.  Div.  440,  150 
N.  Y.  Supp.  033;  Henderson  v.  New  York 
(Henderson  v.  Wickham)  92  U.  S.  259,  23 
L.  ed.  543. 

This  is  not  necessarily  a  suit  in  equity 
to  enjoin  a  criminal  proceeding,  but  in  any 
event  it  is  fully  justified  in  order  to  prevent 
the  invasion  of  the  rights  of  property  of 
appellee  by  the  enforcement  of  an  unconsti- 
tutional law,  the  enforcement  of  which 
works  a  direct  injury  and  irreparable  harm 
to  him. 

Re  Sawyer,  124  U.  S.  200,  31  L.  ed.  402,  8 
Sup.  Ct.  Rep.  482;  Reagan  v.  Farmers' 
Loan  &  T.  Co.  154  U.  S.  362,  38  L.  ed.  1014, 
4  Inters.  Com.  Rep.  560,  14  Sup.  Ct.  Rep. 
1047;  Ex  parte  Young,  200  U.  S.  123,  52 
L.  ed.  714,  13  L.R.A.(N.S.)  032,  28  Sup.  Ct. 
Rep.  441,  14  Ann.  Cas.  764;  McCabe  y. 
Atchison,  T.  &  S.  F.  R.  Co.  235  U.  S.  151, 
50  L.  ed.  160,  35  Sup.  Ct.  Rep.  60;  Re 
Tiburcio  Parrott,  6  Sawy.  340,  1  Fed.  481; 
Cummings  v.  Missouri,  4  Wall.  320,  18  L. 
ed.  362;  Chy  Lung  y.  Freeman,  02  U.  S. 
275,  23  L.  ed.  550. 

Mr.  Justice  Haghes  delivered  the  opin- 
ion of  the  court: 

Under  the  initiative  provision  of  the  Con- 
stitution of  Arizona  (art.  4,  §  1)  there  was 
adopted  the  following  measure  which  was 
proclaimed  by  the  governor  as  a  law  of  the 
state  on  December  14,  1014: 

An  Act  to  Protect  the  Citizens  of  the 
United  States  in  Their  Employment 
against  Noncitizens  of  the  United  States, 
in  Arizona,  and  to  Provide  Penalties  and 
Punishment  for  the  Violation  Thereof. 

Be  it  enacted  by  the  People  of  the  State 
of  Arizona: 

Section  1.  Any  company,  corporation, 
partnership,  association  or  individual  who 
is,  or  may  hereafter  become  an  employer 
of  more  than  five  (5)  workers  at  any  one 
time,  in  the  state  of  Arizona,  regardless  of 

239  U.  S. 


1915. 


TRUAX  ▼.  RAICH. 


36-37 


kind  or  class  of  work,  or  sex  of  workers, 
■hall  employ  not  less  than  eighty  (80)  per 
cent  qualitied  electors  or  native-born  citi- 
lens  of  the  United  States  or  some  subdi- 
Tiiion  thereof. 

Sec.  2.  Any  company,  corporation,  part- 
nership, association  or  individual,  their 
igent  or  agents,  found  guilty  of  violating 
iny  of  the  provisions  of  this  act  shall  be 
guilty  of  a  misdemeanor,  and,  upon  convic- 
tion thereof,  shall  be  subject  to  a  fine  of 
Bot  less  than  one  hundred  ($100)  dollars, 
tnd  imprisoned  for  not  less  than  thirty 
(80)  days. 

Sec.  3.  Any  employee  who  shall  misrepre- 
lent,  or  make  false  statement,  as  to  his  or 
her  nativity  or  citizenship,  sliaU,  upon  con- 
viction thereof,  be  subject  to  a  fine  of  not 
ktt  than  one  hundred  ($100)  dollars,  and 
imprisoned  for  not  less  than  thirty  (30) 
dijs.  Laws  of  Arizona,  1915.  Initiative 
Measure,  p.  12.  % 

[36]  Mike  Raich  (the  appellee),  a  native 
of  Austria,  and  an  inhabitant  of  the  state  of 
Arizona,  but  not  a  qualified  elector,  was  em- 
ployed as  a  cook  by  the  appellant  William 
Truax,  Sr.,  in  his  restaurant  in  the  city  of 
Bisbee,  Cochise  county.  Truax  had  nine  em- 
ployees, of  whom  seven  were  neither  "native 
bom  citizens"  of  the  United  States  nor  quali- 
fied electors.  After  the  election  at  which 
the  act  was  passed  Raich  was  informed 
by  his  employer  that  when  the  law  was 
proclaimed,  and  solely  by  reason  of  its  re- 
quirements and  because  of  the  fear  of  the 
penalties  that  would  be  incurred  in  case  of 
its  violation,  he  would  be  discharged. 
Thereupon,  on  December  15,  1014,  Raich 
filed  this  bill  in  the  district  court  of  the 
United  States  for  the  district  of  Arizona, 
asserting,  among  other  things,  that  the  act 
denied  to  him  the  equal  protection  of  the 
laws  and  hence  was  contrary  to  the  14th 
Amendment  of  the  Constitution  of  the 
United  States.  Wiley  E.  Jones,  the  attor- 
ney general  of  the  state,  and  W.  O.  Gilmore, 
the  county  attorney  of  Cochise  county,  were 
made  defendants  in  addition  to  the  employ- 
er Truax,  upon  the  allegation  that  these 
officers  would  prosecute  the  employer  unless 
be  complied  with  its  terms,  and  that  in  or- 
4er  to  avoid  such  a  prosecution  the  employ- 
er Was  about  to  discharge  the  complainant, 
^▼erring  that  there  was  no  adequate  remedy 
at  law,  the  bill  sought  a  decree  declaring 
the  act  to  ba  unconstitutional  and  restrain- 
^g  action  thereunder. 

Soon  after  the  bill  was  filed,  an  applica- 
tion was  made  for  an  injunction  pendente 
lite.  After  notice  of  this  application,  Truax 
was  arrested  for  a  violation  of  the  act,  Vip- 
on  a  complaint  prepared  by  one  of  the  as- 
sistants in  the  office  of  the  county  attorn^ ' 
•0  L.  ed. 


of  Cochise  county,  and  aa  it  appeared  that 
by  reason  of  the  determination  of  the  of- 
ficers to  enforce  the  act  there  was  danger 
of  the  complainant's  immediate  discharge 
from  employment,  the  district  judge  granted 
a  temporary  restraining  order. 

The  allegations  of  the  bill  were  not  contro- 
verted. The  [37]  defendants  joined  in  a 
motion  to  dismiss  upon  the  grounds  (1) 
that  the  suit  was  against  the  state  of  Ari- 
zona without  its  consent;  (2)  that  it  was 
sought  to  enjoin  the  enforcement  of  a  crimi- 
nal statute;  (3)  that  the  bill  did  not  state 
facts  sufficient  to  constitute  a  cause  of  ac- 
tion in  equity;  and  (4)  that  there  was  an 
improper  joinder  of  parties,  and  the  plaintiff 
was  not  entitled  to  sue  for  the  relief  asked. 
The  application  for  an  interlocutory  in- 
junction and  the  motion  to  dismiss  were 
then  heard  before  three  judges,  as  required 
by  g  266  of  the  Judicial  Code  [36  SUt.  at 
L.  1162,  chap.  231,  Comp.  Stat.  1013,  § 
1243].  The  motion  to  dismiss  was  denied 
and  an  interlocutory  injunction  restraining 
the  defendants,  the  attorney  general  and 
the  county  attorney,  and  their  successors 
and  assistants,  from  enforcing  the  act 
against  the  defendant  Truax,  was  granted. 
210  Fed.  273.  This  direct  appeal  has  been 
taken. 

As  the  bill  is  framed  upon  the  theory 
that  the  act  is  unconstitutional,  and  that 
the  defendants,  who  are  public  officers  con- 
cerned with  the  enforcement  of  the  laws  of 
the  state,  are  about  to  proceed  wrongfully 
to  the  complainant's  injury  through  inter- 
ference with  his  employment,  it  is  estab- 
lished that  the  suit  cannot  be  regarded  as 
one  against  the  state.  Whatever  doubt  exist- 
ed in  this  class  of  cases  was  removed  by  the 
decision  in  Ex  parte  Young,  209  U.  S.  123, 
166,  161,  62  L.  ed.  714,  727,  720,  13  L.R«A. 
(N.S.)  932,  28  Sup.  Ct  Rep.  441,  14  Ann. 
Cas.  764,  which  has  repeatedly  been  fol- 
lowed. Ludwig  V.  Western  U.  Teleg.  Co. 
216  U.  S.  146,  64  L.  ed.  423,  30  Sup.  Ct. 
Rep.  280;  Western  U.  Teleg.  Co.  v.  Andrews, 
216  U.  S.  166,  64  L.  ed.  430,  30  Sup.  Ct. 
Rep.  286;  Herndon  v.  Chicago,  R.  I.  &  P.  R. 
Co.  218  U.  S.  136,  165,  64  L.  ed.  970,  976, 
30  Sup.  Ct.  Rep.  633;  Hopkins  v.  Clemson 
Agri.  College,  221  U.  S.  636,  643-646,  55  L. 
ed.  890,  894,  896,  36  L.R.A.(N.S.)  243,  31 
Sup.  Ct.  Rep.  664 ;  Philadelphia  Co.  v.  Stim- 
son,  223  U.  S.  607,  620,  66  L.  ed.  572,  676,. 
32  Sup.  Ct.  Rep.  340;  Home  Teleph.  & 
Teleg.  Co.  v.  Los  Angeles,  227  U.  S.  278,  293, 
67  L.  ed.  610,  517,  33  Sup.  Ct.  Rep.  312. 

It  is  also  settled  that  while  a  court  of 
equity,  generally  speaking,  has  "no  jurisdic- 
tion over  the  prosecution,  the  punishment, 
or  the  pardon  of  crimes  or  misdemeanors" 
(Re  Sawyer,  124  U.  S.  200,  210,  31  L.  ed. 
402,  405,  8  Sup.  Ct.  Rep.  482),  a  distinction 

1S& 


S7-40 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbbic» 


obtains,  and  equitable  jurisdiction  exists 
to  restrain  criminal  prosecutions  [38]  under 
unconstitutional  enactments,  when  the  pre- 
vention of  such  prosecutions  is  essential  to 
the  safeguarding  of  rights  of  property.  Da- 
vis k  F.  Mfg.  Co.  y.  Los  Angeles,  189  U.  S. 
207,  218,  47  L.  ed.  778,  780,  23  Sup.  Ct. 
Rep.  408;  Dobbins  v.  Los  Angeles,  105  U. 
8.  223,  241,  49  L.  ed.  160,  177,  25  Sup.  Ct. 
Rep.  18;  Ex  parte  Young,  supra;  Phila- 
delphia Co.  V.  Stimson,  223  U.  S.  621,  56 
L.  ed.  577,  32  Sup.  Ct.  Rep.  340.  The  right 
to  earn  a  livelihood  and  to  continue  in  em- 
ployment unmolested  by  efforts  to  enforce 
void  enactments  should  similarly  be  entitled 
to  protection  in  the  absence  of  adequate 
remedy  at  law.  It  is  said  that  the  bill  does 
not  show  an  employment  for  a  term,  and 
that  under  an  employment  at  will  the  com- 
plainant could  be  discharged  at  any  time, 
for  any  reason  or  for  no  reason,  the  motive 
of  the  employer  being  immaterial.  The 
conclusion,  however,  that  is  sought  to  be 
drawn,  is  too  broad.  The  fact  that  the 
employment  is  at  the  will  of  the  parties, 
respectively,  does  not  make  it  one  at  the 
will  of  others.  The  employee  has  manifest 
interest  in  the  freedom  of  th<i  employer  to 
exercise  his  judgment  without  illegal  in- 
terference or  compulsion  and,  by  the  weight 
of  authority,  the  unjustified  interference  of 
third  persons  is  actionable  although  the 
employment  is  at  will.  Moran  v.  Dunphy, 
177  Mass.  485,  487,  52  L.R.A.  115,  83  Am. 
St.  Rep.  280,  50  N.  E.  125;  Berry  v.  Dono- 
van, 188  Mass.  353,  5  L.R.A.(N.S.)  800, 
108  Am.  St.  Rep.  400,  74  N.  E.  603,  3  Ann. 
Cas.  738;  Brennan  v.  United  Hatters,  73 
N.  J.  L.  720,  743,  0  L.RA..(N.S.)  254,  118 
Am.  St.  Rep.  727,  65  Atl.  165,  0  Ann.  Cas. 
608;  Perkins  v.  Pendleton,  00  Me.  166,  60 
Am.  St.  Rep.  252,  38  Atl.  06;  Lucke  v. 
Clothing  Cutters*  &  T.  Assembly,  77  Md. 
306,  10  L.RJ^.  408,  30  Am.  St.  Rep.  421, 
26  Atl.  505;  London  Guarantee  k  Acci.  Co. 
V.  Horn,  101  HI.  App.  355,  206  111.  403,  00 
Am.  St.  Rep.  185,  60  N.  E.  526;  Chipley  v. 
Atkinson,  23  Fla.  206,  11  Am.  St.  Rep.  367, 
1  So.  034;  Blumenthal  v.  Shaw,  23  C.  C.  A. 
500,  30  U.  S.  App.  400,  77  Fed.  054.  It 
is  further  urged  that  the  complainant  can- 
not sue  save  to  redress  his  own  grievance 
(McCabe  v.  Atchison,  T.  ft  S.  F.  R.  Co.  235 
U.  S.  151,  162,  50  L.  ed.  160,  174,  35  Sup. 
Ct.  Rep.  60)  ;  that  is,  that  the  servant 
cannot  complain  for  the  master,  and  that 
it  is  the  master  who  is  subject  to  prosecu- 
tion, and  not  the  complainant.  But  the 
act  undertakes  to  operate  directly  upon  the 
employment  of  aliens,  and  if  enforced  would 
compel  the  employer  to  discharge  a  sufficient 
number  of  his  employees  to  bring  the 
[30]  alien  quota  within  the  prescribed  limit. 
It  sufficiently  appears  that  the  discharge 
184 


of  the  complainant  will  be  sc^ely  for  the 
purpose  of  meeting  the  requirements  of  the 
act  and  avoiding  threatened  prosecution 
under  its  provisions.  It  is,  therefore,  idle 
to  call  the  injury  indirect  or  remote.  It  is 
also  entirely  clear  that  unless  the  enforce- 
ment of  the  act  is  restrained  the  complain- 
ant will  have  no  adequate  remedy,  and  hence 
we  think  that  the  case  falls  within  the  class 
in  which,  if  the  unconstitutionality  of  the 
act  is  shown,  equitable  relief  may  be  had. 

The  question,  then,  is  whether  the  act 
assailed  is  repugnant  to  the  14th  Amend- 
ment. Upon  the  allegations  of  the  bill,  it 
must  be  assumed  that  the  complainant,  a 
native  of  Austria,  has  been  admitted  to 
the  United  states  under  the  Federal  law. 
He  was  thus  admitted  with  the  privilege 
of  entering  and  abiding  in  the  United  States, 
and  hence  of  entering  and  abiding  in  any 
state  in  the  Union.  (See  Gcj^iow  v.  Uhl, 
decided  Octobfr  25,  1015  [230  U.  S.  3,  ante, 
114,  36  Sup.  Ct.  Rep.  2].)  Being  lawfully 
an  inhabitant  of  Arizona,  the  complainant 
is  entitled  under  the  14th  Amendment  to 
the  equal  protection  of  its  laws.  The  de- 
scription, *'any  person  within  its  jurisdic- 
tion/' as  it  has  frequently  been  held,  in- 
cludes aliens.  **These  provisions/'  said  the 
court  in  Yick  Wo  v.  Hopkins,  118  U.  S. 
350,  360,  30  L.  ed.  220,  220,  6  Sup.  Ct.  Rep. 
1064  (referring  to  the  due  process  and 
equal  protection  clauses  of  the  Amendment), 
"are  universal  in  their  application,  to  all 
persons  within  the  territorial  jurisdiction, 
without  regard  to  any  ditTcrenccs  of  race, 
of  color,  or  of  nationality;  and  the  equal 
protection  of  the  laws  is  a  pledge  of  the 
protection  of  equal  laws."  See  also  Wong 
Wing  V.  United  States,  103  U.  S.  228,  242, 
41  L.  ed.  140,  145,  16  Sup.  Ct.  Rep.  077; 
United  States  v.  Wong  ICim  Ark,  160  U. 
S.  640,  605,  42  L.  ed.  800,  007,  18  Sup.  Ct. 
Rep.  456.  The  discrimination  defined  by 
the  act  does  not  pertain  to  the  regulation 
or  distribution  of  the  public  domain,  or 
of  the  common  property  or  resources  of 
the  people  of  the  state,  the  enjoyment  of 
which  may  be  limited  to  its  citizens  as 
against  [40]  both  aliens  and  the  citizens  of 
other  states.  Thus  in  McCready  v.  Vir- 
ginia, 04  U.  S.  301,  306,  24  L.  ed.  248,  240, 
the  restriction  to  the  citizens  of  Virginia 
of  the  right  to  plant  oysters  in  one  of  its 
rivers  was  sustained  upon  the  ground  that 
the  regulation  related  to  the  common  prop- 
erty of  the  citizens  of  the  state,  and  an 
analogous  principle  was  involved  in  Patsone 
V.  Pennsylvania,  232  U.  S.  138,  145,  146, 
58  L.  ed.  530,  544,  34  Sup.  Ct.  Rep.  281, 
where  the  discrimination  against  aliens 
upheld  by  the  court  had  for  its  object  the 
protection  of  wild  game  within  the  states, 
with  respect  to  which  it  was  said  that  the 

239   U.  S. 


1915. 


TRUAX  T  RAICH. 


4(M2 


«tate  could  exercise  its  presenring  power  for 
the  benefit  of  its  own  citizeDS  if  it  pleased. 
The  case  now  presented  is  not  within  these 
decisions,  or  within  those  relating  to  the 
devolution  of  real  property  (Hauenstein  v. 
Lynham,  100  U.  S.  483,  25  L.  ed.  G28; 
Bljthe  V.  Hinckley,  180  U.  S.  333.  341, 
342,  43  L.  ed.  557,  562,  663,  21  Sup.  Ct. 
Rep.  300)  ;  and  it  should  be  added  that 
the  act  is  not  limited  to  persons  who  are 
engaged  on  public  work  or  receive  the  bene- 
fit of  public  moneys.  The  discrimination 
here  involved  is  imposed  upon  the  conduct 
«f  ordinary  private  enterprise. 

The  act,  it  will  be  observed,  provides  that 
«very  employer  (whether  corporation,  part- 
Bersliip,  or  individual)  who  empioyv'more 
than  five  workers  at  any  one  time,  "regard- 
less of  kind  or  class  of  work,  or  sex  of 
workers,"  shall  employ  "not  less  than  80  per 
cent  qualified  electors  or  native-born  citi- 
zens of  -the  United  States  or^some  subdi- 
vision thereof."  It  thus  covers  the  entire 
field  of  industry  with  the  exception  of  en- 
terprisos  tliat  are  relatively  very  small. 
Its  application  in  the  present  case  is  to  em- 
ployment in  a  restaurant  the  business  of 
which  requires  nine  employees.  The  pur- 
pose of  an  act  must  be  found  in  its  natural 
operation  and  effect  (Henderson  ▼.  New 
York  [Henderson  ▼.  Wickham]  92  U.  8. 
259,  268,  23  L.  ed.  543,  547 ;  Bailey  v.  Ala- 
bama, 2]  9  U.  S.  219,  244,  55  L.  ed.  191,  202, 
31  Sup.  Ct.  Rep.  145),  and  the  purpose  of 
this  act  is  not  only  plainly  shown  by  its 
provisions,  but  it  is  frankly  revealed  in  its 
title.  It  is  there  described  as  ''an  act  to 
protect  tlie  citizens  of  the  United  States  in 
their  employment  against  noncitizens  [41] 
of  the  Unitetl  States,  in  Arizona."  As  the 
appellants  rightly  say,  there  has  been  no 
subterfuge.  It  is  an  act  aimed  at  the  em- 
ployment of  aliens,  as  such,  in  the  busi- 
nesses described.  Literally,  its  terms  might 
be  taken  to  include  with  aliens  those  nat- 
uralized citizens  who,  by  reason  of  change 
of  residence,  might  not  be  at  the  time 
qualified  electors  in  any  subdivision  of  tlie 
United  States;  but  we  are  dealing  with  the 
Bain  purpose  of  the  statute,  definitely 
stated,  in  the  execution  of  which  the  com- 
plainant is  to  be  forced  out  of  his  employ- 
ment as  a  cook  in  a  restaurant,  simply  be- 
eanse  he  is  an  alien. 

It  is  sought  to  justify  this  act  as  an  exer- 
cise of  the  power  of  the  state  to  make  rea- 
sonable classifications  in  legislating  to 
promote  the  health,  safety,  morals,  and  wel- 
fare of  those  within  its  jurisdiction.  Bat 
this  admitted  authority,  with  the  broad 
range  of  legislative  discretion  that  it  im- 
plies, does  not  go  so  far  as  to  make  it  pos- 
sible for  the  state  to  deny  to  lawful 
inhabitants,  because  of  their  race  or  nation- 
•0  L.  ed. 


ality,  the  ordinary  means  of  earning  a  live- 
lihood. It  requires  no  argument  to  show 
that  the  right  to  work  for  a  living  in  the 
common  occupations  of  the  community  is 
of  the  very  essence  of  the  personal  freedom 
and  opportunity  that  it  was  the  purpose  of 
the  Amendment  to  secure.  Butchers'  Union 
S.  H.  &  L.  S.  L.  Go.  V.  Crescent  City  L.  S.  L. 
&  S.  H.  Co.  Ill  U.  S.  746,  762,  28  L.  ed.  685, 
588,  4  Sup.  Ct.  Rep.  652;  Barbier  v.  Connol- 
ly, 113  U.  S.  27,  31,  28  L.  ed.  923,  924,  5  Sup. 
Ct.  Rep.  357;  Yick  Wo  v.  Hopkins,  supra; 
Allgeyer  v.  Louisiana,  165  U.  S.  578,  589, 
590,  41  L.  ed.  832,  835,  836,  17  Sup.  Ct. 
Rep.  427;  Coppage  v.  Kansas,  236  U.  S.  1, 
14,  59  L.  ed.  441,  L.R.A.1915C,  960,  35  Sup. 
Ct.  R^p.  240.  If  this  could  be  refused 
solely  upon  the  ground  of  race  or  nation- 
ality, the  prohibition  of  the  denial  to  avy 
person  of  the  equal  protection  of  the  laws 
would  be  a  barren  form  of  words.  It  is  no 
answer  to  say,  as  it  is  argued,  that  the 
act  proceeds  upon  the  assumption  that  "the 
employment  of  aliens;  unless  restrained,  was 
a  peril  to  the  public  welfare."  The  dis- 
crimination against  aliens  in  the  wide  range 
of  employments  to  which  the  act  relates 
is  made  an  end  in  itself,  and  thus  the  au- 
thority to  deny  to  aliens,  upon  the  mere 
[42]  fact  of  their  alienage,  the  right  to  ob- 
tain support  in  the  ordinary  fields  of  labor, 
is  necessarily  involved.  It  must  also  be  said 
that  reasonable  classification  implies  ac- 
tion consistent  with  the  legitimate  interests 
of  the  state,  and  it  will  not  be  disputed  that 
these  cannot  be  so  broadly  conceived  as  to 
bring  them  into  hostility  to  exclusive  Fed- 
eral power.  The  authority  to  control  im- 
migration— to  admit  or  exclude  aliens — is 
vested  solely  in  the  Federal  government. 
Fong  Yue  Ting  v.  United  States,  149  U.  S. 
698,  713.  37  L.  ed.  905,  913,  13  Sup.  Ct. 
Rep.  1016.  The  assertion  of  an  au- 
thority to  deny  to  aliens  the  opportunity 
of  earning  a  livelihood  when  lawfully  ad- 
mitted to  the  state  would  be  tantamount  to 
the  assertion  of  the  right  to  deny  them  en- 
trance and  abode,  for  in  ordinary  cases  they 
cannot  live  where  they  cannot  work.  And, 
if  such  a  policy  were  permissible,  the  prac- 
tical result  would  be  that  those  lawfully 
admitted  to  the  country  under  the  au- 
thority of  the  acts  of  Congress,  instead  of 
enjoying  in  a  substantial  sense  and  in  their 
full  scope  the  privileges  conferred  by  the 
admission,  would  be  segregated  in  such  of 
the  stat^  as  chose  to  offer  hospitality. 

It  is  insisted  that  the  act  should  be  sup- 
ported because  it  is  not  "a  total  depriva- 
tion of  the  right  of  the  alien  to  labor;"  that 
is,  the  restriction  is  limited  to  those  busi- 
p esses  in  which  more  than  five  workers  are 
l^aployed,  and  to  the  ratio  fixed.    It  is  em- 

ia5 


42-44 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  TkBX^ 


phasized  that  the  employer  in  any  line  of 
business  who  employs  more  than  five  work- 
ers may  employ  aliens  to  the  extent  of  20 
per  cent  of  his  employees.  But  the  fallacy 
of  this  argument  at  once  appears.  If  the 
state  is  at  liberty  to  treat  the  employment 
of  aliens  as  in  itself  a  peril,  requiring  re- 
straint regardless  of  kind  or  class  of  work, 
it  cannot  be  denied  that  the  authority  ex- 
ists to  make  its  measures  to  that  end  ef- 
fective. Otis  V.  Parker,  187  U.  S.  606,  47 
L.  ed.  323,  23  Sup.  Ct.  Rep.  168;  New  York 
ex  rel.  Silz  v.  Hesterberg,  211  U.  S.  31,  53 
L.  ed.  75,  20  Sup.  Ct.  Rep.  10;  Purity  Ex- 
tract &  Tonic  Co.  V.  Lynch,  226  U.  S.  102, 
57  L.  cd.  184,  33  Sup.  Ct.  Rep.  44.  If  the 
restriction  to  20  per  cent  now  imposed  is 
maintainable,  the  state  undoubtedly  has 
the  power,  if  it  sees  fit,  to  make  the  percent- 
age [43]  less.  We  have  nothing  before  us 
to  justify  the  limitation  to  20  per  cent  save 
the  judgment  expressed  in  the  enactment, 
and  if  that  is  suflicient,  it  is  difficult  to  see 
why  the  apprehension  and  conviction  thus 
evidenced  would  not  be  sufficient  were  the 
restriction  extended  so  as  to  permit  only 
10  per  cent  of  the  employees  to  be  aliens, 
or  even  a  less  percentage;  or  were  it  made 
applicable  to  all  businesses  in  which  more 
than  three  workers  were  employed  instead 
of  applying  to  those  employing  more  than 
five.  We  have  frequently  said  that  the  leg- 
islature may  recognize  degrees  of  evil  and 
adapt  its  legislation  accordingly  (Consoli- 
dated Coal  Co.  V.  Illinois,  185  U.  S.  203, 
207,  46  L.  ed.  872,  875,  22  Sup.  Ct  Rep. 
616;  McLean  t.  Arkansas,  211  U.  S.  539, 
551,  53  L.  ed.  315,  321,  29  Sup.  Ct.  Rep. 
206;  Miller  v.  Wilson,  236  U.  S.  373,  384,  59 
L.  ed.  628,  632,  35  Sup.  Ct.  Rep.  342) ;  but 
underlying  the  classification  is  the  author- 
ity to  deal  with  that  at  which  the  legisla- 
tion is  aimed.  The  restriction  now  sought 
to  be  sustained  is  such  as  to  suggest  no 
limit  to  the  state's  power  of  excluding 
aliens  from  employment  if  the  principle 
underlying  the  prohibition  of  the  act  is 
conceded.  No  special  public  interest  with 
respect  to  any  particular  business  is  shown 
that  could  possibly  be  deemed  to  support 
the  enactment,  for,  as  we  have  said,  it  re- 
lates to  every  sort.  The  discrimination  is 
against  aliens  as  such  in  competition  with 
citizens  in  the  described  range  of  enter- 
prises, and  in  our  opinion  it  clearly  falls 
under  the  condemnation  of  the  fundamental 
law. 

The  question  of  rights  under  treaties  was 
not  expressly  presenwd  by  the  bill,  and, 
although  mentioned  in  the  argument,  does 
not  require  attention,  in  view  of  the  in- 
1S« 


validity  of  the  act  under  the  14th  Amend- 
ment. 
Order  affirmed. 

Mr.  Justice  Mclteynolds,  dissenting: 
I  am  unable  to  agree  with  the  opinion  of 
the  majority  of  the  court.    It  seems  to  me 
plain  that  this  is  a  suit  against   [44]   a 
state,  to  which  the  11th  Amendment  declares- 
"the  judicial  power  of  the  United  Statea 
shall  not  be  construed  to  extend."    Fitta  v. 
McGhee,  172  U.  S.  516,  43  L.  ed.  535,  1» 
Sup.  Ct.  Rep.  260.    If  Ex  parte  Young,  20<^ 
U.  S.  123,  52  L.  ed.  714, 13  L.R.A.(NJ3.)  932„ 
28  Sup.  Ct.  Rep.  441,  14  Ann.  Cas.  764,  and 
the  cases  following  it  support  the  doctrine 
that  Federal  courts  may  enjoin  the  enforce- 
ment of  criminal  statutes  enacted  by  state 
legislatures  whenever  the  enjoyment  of  some 
constitutional  right  happens  to  be  threat- 
ened   with    temporary    interruption,    thej 
should  be  overruled  in  that  regard.     The 
simple,  direct  language  of  the  Amendment 
ou^t  to  be  given  effect,  not  refined  away 
That  the  challenged  act  is  invalid  I  think 
admits  of  no  serious  doubt. 


RIO   GRANDE  WESTERN  RAILWAY 
COMPANY,  Plff.  in  Err., 

▼. 

THOMAS  B.  STRINGHAM  et  al. 

(See  S.  C.  Reporter's  ed.  44-48.) 

Error  to  state  court  »  flnal  Judgment* 

1.  A  judgment  of  the  highest  state 
court,  which  reversed  a  judgment  below  in 
favor  of  defendants  in  a  suit  by  a  railway 
company  to  quiet  title  to  a  strip  of  land 
claimed  and  used  by  it  as  a  right  of  way 
under  the  act  of  March  3,  1875  (18  Stat, 
at  L.  482,  chap.  152,  Comp.  Stat.  1913,. 
§  4021),  and  to  which  defendants  asserted 
title  under  a  patent  to  a  placer  mining 
claim,  and  remanded  the  cause  with  a  di- 
rection to  "enter  a  judgment  awarding  to 
the  plaintiff  title  to  a  right  of  way  over 
the  lands  in  question  300  feet  wide  on  each 
side  of  the  center  of  the  track,"  is  a  final 
judgment  within  the  meaning  of  the  Judi- 
cial Code,  §  237,  governing  writs  of  error 

Note. — As  to  when  judgment  sought  to 
be  reviewed  in  Federal  Supreme  Court  is 
that  of  highest  state  court — see  note  to 
Norfolk  &  S.  Turnp.  Co.  v.  Virginia,  56 
L.  ed.  U.  S.  1082. 

As  to  what  judgments  or  decrees  are 
final  for  purposes  of  review — see  notes  to 
Gibbons  v.  Ogdcn,  5  L.  ed.  U.  S.  302,  and 
Schlosser  v.  Hemphill,  49  L.  ed.  U.  S.  1001. 

As  to  land  grants  to  railroads  generally 
— sec  note  to  Kansas  P.  R.  Co.  v.  Atchison, 
T.  &  S.  F.  R.  Co.  28  L.  ed.  U.  S.  794. 

280  U.  S. 


1915. 


RIO  GRANDE  WESTERN  R.  CX).  t.  STRINGHAM. 


45-47 


from  the  Federal  Supreme  Court  to  state 

courts. 

(For  other  caseff.   see  Appenl  and  Error,   I. 
d.  24.  iu  Digest  Sap.  Ct.  1908.] 

Error  to  state  court  — >  decision  of  Fed- 
er.'^l  question. 

2.  A  decision  of  the  highest  state  court, 

which,    on    a    second    appeal,   aiiirmed   the 

judgment    below    on    the    ground    tliat    its 

former  decision   was  t]ie  law  of  the  case, 

ii  not  reviewable  in  the  Federal  Supreme 

Court,   where    the    Federal   question    relied 

upon   to   confer   jurisdiction   was    involved 

IB  the  first  decision,  and  that  decision  was 

final,  in  the   sense  of  the  Judicial   Code, 

I  237,  governing  writs  of  error  to  state 

courts. 

[For  other  cases,  see  Appeal  and  Error,  1465- 
1528,  In  Disest  Sup.  Ct.  1908.;) 

Public  lands  »  railway  land  grant  » 
right  of  way. 

3.  Neither  a  mere  easement  nor  a  fee 
ample  absolute,  but  a  limited  fee,  made  on 
an  implied  condition  of  reverter  in  the  event 
that  the  railway  company  ceases  to  use  or 
retain  the  land  for  the  jpurpose  for  which 
it  is  granted,  carrying  with  it  the  incidents 
and  remedies  usually  attending  the  fee, — 
ii  what  was  granted  by  the  railway  right- 
of-way  act  of  March  8,  1875  (18  Stat,  at  L. 
482,  chap.  152,  Comp.  Stat.  1013,  §  4921), 
which  grants  to  a  railway  company  com- 
plying with  its  requirements  *'a  ri|?ht  of 
way,"  and  declares  that  "all  such  lands  over 
which  such  right  of  way  shall  pass  shall  be 
disposed  of  subject  to  such  right  of  way." 
[For  other  cases,  see  Pnbllc  Lands.  820-329. 

In  Digest  Sop.  Ct.  1908.] 

[Nos.  4  and  5.] 

Submitted  October  19,  1915.     Decided  Ko- 
vember  1,  1916. 

1}C  ERROR  to  the  Supreme  Court  of  the 
State  of  Utah  to  review  a  decree  which 
reversed  a  decree  of  the  District  Court  of 
Salt  Lake  County,  in  that  state,  in  favor 
of  defendants  in  a  suit  to  quiet  title,  and 
remanded  the  ease  with  a  direction  to  enter 
a  judgment  for  plaintiff.     Affirmed.     Also 

IN  ERROR  to  the  Supr<ane  Court  of  the 
State  of  Utah  to  review  a  decree  which, 
on  a  second  appeal,  affirmed  a  decree  of  the 
District  Court  of  Salt  Lake  County,  in  that 
state,  in  favor  of  plaintiff  in  the  same  suit. 
Dismissed  for  want  of  jurisdiction. 

See  same  case  below.  No.  4,  38  Utah,  113, 
110  Pac.  868;  No.  5,  39  Utah,  236,  115  Pac. 
W. 

The  facta  are  stated  in  the  opinion. 

Messrs.  Waldeniar  Van  Cott,  B.  M. 
AlUsoiif  Jr.»  and  William  D.  Ritar  sub- 
mitted the  cause  for  plaintiff  in  error. 

No  appearance  for  defendants  in  error. 

Mr.  Justice  Tan  Devanter  delivered  the 
opinion  of  the  court: 

This  was  a  suit  to  quiet  the  title  to  a 
•t  L.  ed. 


strip  of  land  claimed  and  used  by  the  plain- 
tiff as  a  railroad  right  of  way  under  the 
act  of  March  3,  1875,  chap.  152,  18  Stat, 
at  L.  482,  Comp.  Stat.  1913,  §  4921,  and  to 
which  the  defendants  asserted  title  under 
a  patent  for  a  placer  mining  claim.  At  the 
trial  the  facts  were  specially  found  and 
judgment  for  the  defendants  was  entered 
upon  the  findings.  In  reviewing  that  judg- 
ment, the  supreme  [46]  court  of  the  state, 
accepting  the  findings  below,  held  that  the 
plaintiff,  in  virtue  of  proceedings  had  in 
the  Land  Department  under  the  right-of- 
way  act  while  the  land  was  yet  public,  ac- 
quired a  right  of  way  200  feet  wide  through 
the  lands  afterwards  embraced  in  the  min- 
ing claim,  and  that  the  defendants'  title 
under  the  placer  patent  was  subject  to  this 
right  of  way,  and  tliereupon  reversed  the 
judgment  and  remanded  the  case  with  a 
direction  to  "enter  a  judgment  awarding  to 
the  plaintiff  title  to  a  right  of  way  over 
the  lands  in  question  100  feet  wide  on  each 
side  of  the  center  of  the  track."  -38  Utah, 
113,  110  Pac.  868.  Acting  upon  this  direc- 
tion, the  trial  court  vacated  its  prior  judg- 
meat  and  entered  another,  adjudging  the 
plaintiff  to  be  "the  owner  of  a  right  of  way*' 
through  the  mining  claim  100  feet  wide  on 
each  side  of  the  center  line  of  the  railroad, 
declaring  the  plaintiff's  title  to  such  right 
of  way  good  and  valid,  and  enjoining  the 
defendants  from  asserting  any  claim  what- 
ever to  the  premises,  or  any  part  thereof, 
adverse  to  the  plaintiff's  "said  right  of 
way."  The  plaintiff  again  appealed,  insist- 
ing that  it  was  only  adjudged  to  be  the 
owner  of  a  right  of  way  when,  according  to 
the  true  effect  of  the  right-of-way  act,  it 
had  a  title  in  fee  simple,  as  was  asserted 
in  its  complaint.  But  the  judgment  was 
affirmed,  the  court  saying  (39  Utah,  230, 
115  Pac.  967 ) : 

"If  counsel  for  appellant  thought  that 
this  court,  in  the  prior  opinion,  did  not  cor- 
rectly define  and  determine  the  extent  of 
appellant's  rights  to  the  land  in  dispute,  or 
did  not  fully  safeguard  its  rights  as  defined 
and  adjudged,  they  should  have  filed  a 
petition  for  a  rehearing.  This  they  did  not 
do.  The  conclusions  of  law  and  judgment 
having  been  drawn  and  entered  in  conform- 
ity  with  the  decision  of  this  court,  we  are 
precluded  from  further  considering  the  case. 
The  former  decision  became,  and  is,  the 
law  of  the  case,  and  this  court,  as  well  aa 
the  litigants,  are  bound  thereby." 

[47]  Being  in  doubt  which  of  the  judg- 
ments of  the  appellate  court  should  be 
brought  here  for  review  to  present  properly 
the  question  respecting  the  nature  of  its 
title,  the  plaintiff  concluded  to  bring  up 
both,  each  by  a  separate  writ  of  error. 

Manifestly  the  first  judgment  was  final 

1S7 


47-49  6UPREME  COURT  OF  THE  UNITED  STATES.  Oct.  Tebk, 


HENRY  BRIGGS,  Appt., 

V. 

UNITED  SHOE  MACHINERY  COMPANY. 


within  the  meaning  of  Judicial  Code,  9  237 

[36  Stat,  at  L.  1156,  chap.  231,  Comp.  Stat. 

1013,  S  1214].     It  disposed  of  the  whole 

ease  on  the  merits,  directed  what  judgment 

should  be  entered,  and  left  nothing  to  the  (See  S.  C.  Reporter's  ed.  48-50.) 

judicial  discretion  of  the  trial  court.    Tip- 

r^S'^Qor"*/  \'  ^l'"^  p  ^i  \  T\ll  ^^«~>   «>"^  -  J«H«dictlon  -  suit 

L.   ed.   822;    Bostwick  v.   Brmkerhoff,  106  arising  under  patent  laws. 

U.  S.  3,  27  L.  ed.  73,  1  Sup.  Ct  Rep.  16;  a  suit  does  not  arise  under  the  pat- 
Mower  V.  Fletcher,  114  U.  S.  127,  29  L.  ed.  ent  laws  of  the  United  States  so  as  to  be 
117,  6  Sup.  Ct.  Rep.  799;  Chesapeake  &  P.  justiciable  by  a  Federal  district  court,  where 
Teleph.  Co.  ▼.  Manning,  186  U.  S.  238,  46  the  dominant  and  ultimate  object  of  the 
L.  ed.  1144,  22  Sup.  Ct.  Rep.  881.  And  as  ^'^^  >«^  *<>  enforce  payment  of  royalties 
the  question  sought  to  be  presented  arises  reserved  to  the  plamtiff  by  a  contract  where- 
upon the  first  judgment,-it  being  final  in  ?L  JnH^^LJ^JLuff^  f*"^  "t^-"  ^''"*' 
Au  «  Q  ooT  'i.  •  f  i.1-  i.  XI.  '"8>  *^*1  contemplated  patents  for  improve- 
the  sense  of  §  237, -it  is  apparent  that  the  „|„t8  in  machinery,  and,  in  order  to  clear 
writ  of  error  addressed  to  the  second  judg-  the  way  for  a  recovery  of  all  the  royalties 
ment  presents  nothing  reviewable  here.  See  claimecl,  it  seeks  the  annulment  of  a 
Northern  P.  R.  Co.  v.  Ellis,  144  U.  S.  458,  patent  for  such  an  improvement  issued  aft- 
86  L.  ed.  504,  12  Sup.  Ct.  Rep.  724;  Great  er  the  contract  and  then  assigned  to  the 
Western  Teleg.  Co.  v.  Burnham,  162  U.  S.  defendant,  and  also  an  adjudication  that 
839,  40  L.  ed.  991,  16  Sup.  Ct.  Rep.  850 ;  ***®  plaintiff  is  entitled  to  a  patent  for  the 

Chesapeake  &  0.  R.  Co.  v.  McCabe,  213  U.  S.  rpLTfl^^r  "n.^7*I!f  r Jn!!Sf\!?^2a   .     ™ 

^^f    Ai^    «A  T       J    mi»m    **««    «#*   ci         -nx  l'*^'  Other  cases,  see  Courts,  553-569,  in  Dl- 

207,  214,  53  L.  ed.  765,  768,  29  Sup.  Ct.  gest  Sup.  Ct.  1908.] 

Rep.  430. 

What  the  act  relied  upon  grants  to  a  r^^     g«g  ^ 
railroad  company   complying   with   its   re- 
quirements  is  spoken  of  throughout  the  act 

as  a  "right  of  way;"  and  by  way  of  quali-  Submitted  October  12,  1915.     Decided  No- 

fying  future   disposals  of  lands  to  which  vember  1    1915. 
such  a  right  has  attached,  the  act  declares 
that  "all  such  lands  over  which  such  right 

of  way  shall  pass  shall  be  disposed  of  sub-  A  PPEAL  from  the  District  Court  of  the 

ject  to  such  right  of  way."  -^  United   States   for   the   Southern    Dis- 

The  right  of  way  granted  by  this  and  trict  of  New  York  to  review  a  decree  dis- 
similar acts  is  neither  a  mere  easement,  nor  missing,  for  want  of  jurisdiction,  a  suit  to 
a  fee  simple  absolute,  but  a  limited  fee,  enforce  the  payment  of  patent  royalties 
made  on  an  implied  condition  of  reverter  in  under  contract.  Affirmed, 
the  event  that  the  company  ceases  to  use  ^r.  William  A.  MllUken  submitted  the 
or  retain  the  land  for  the  purposes  for  cause  for  appellant, 
which  it  is  granted,  and  carries  with  it  the 

incidents  and  remedies  usually  attending  the  Mr.   Horace   A.    Dodge   submitted    the 

fee.     New  Mexico  v.  United  States  Trust  cause  for  appellee.     Mr.  Alex.  D.  Salinger 

Co.  172  U.  S.  171,  183,  43  L.  ed.  407,  411,  was  on  the  brief. 
19  Sup.  Ct.  Rep.  128;  Northern  P.  R.  Co. 

TnZTrr^.^^2  ^-  ^  ^p  '  ^l.\^'^^..'i  Memorandum  opinion  by  Mr.  Justice  Van 

1044,  1046    23  Sup.  Ct.  Rep    671;   United  Levanter,  by  di^ction  of  the  court: 

?    !?  I'm^^'iiT'  o\  ^«^-  V^^'  ^^^A^  Whether  this  suit  between  citizens  of  the 

WpiSi™  TT  '  tIw'  cl  ^%         ?'^  -^'p'  •a™^^  »tate  is  one  arising  under  the  patent 

Western  U.  Teleg.  Co.  ▼.  Pennsylvania  R.    ,         .    *.         i     .-^  ^.^««4.«^  k«  ^i,;. 

Co.  196  U.  8.  5«.  670,  49  L.  ed   312.  323.  1^%"  *••*  ""'"  1"*'^T^^-?Tr^f    I  ^Va 

25  Sup.  Ct.  Rep.  133, 1  Ann.  Ca..  617.   [48  f l'%\  "PPf,  ™*lV  •^"1'"*'  ^?^''J  ^^' 

The   judgment   under   review   doee  not   in  ^?/*?*- '*  ^^- "i[' 'j'-T-  f  '      ^^  !    t 

word.  K,  characterize  the  pUintiff's  right,  ^^^^'  «  ^-^^l.    The  district  court  j^ve  a 

nor  was  it  emential  that  it  should  do  M.    It  n^gat'/e  answer  to  the  question,  and  dis- 

describes  the  right  in  the  exact  terms  of  the  '^'^^  ^^^  *""  '°'"  **"*  °l  jurisdiction. 

right-of-way  act,  and  evidently  uses  those  ^he  bill  shows  that  its  dominant  and  u  - 

terms  with  th«  same  meaning  they  have  in  t'°»»te  object  is  to  enforce  payment  of  royal- 

the  act    So  interpreting  the  judgment,  as  ««■  reserved  to  the  plaintiff  by  a  contract 

plainty  must  be  done,  we  think  it  accords  whereby  he  sold  to  the  defendant  certain 

to  the  pUintiff  all  to  which  it  is  entitled  existing  and  contemplated  patents  for  im- 

under  the  act.  provements   in   shoe-sewing   machines,   and 

In  No.  4,  judgment  affirmed.  that  to  clear  the  way  for  a  recovery  of  all 

In  No.  6,-  writ  of  error  dismissed.  the  royalties  claimed  it  seeks  the  annulment 

Its  239  U.  S. 


1915. 


PENNSYLVANIA  CO.  v.  DONAT. 


49,  50 


of  a  patent  for  tuch  an  improvement  issued 
to  Andrew  Eppler  after  the  contract,  and 
then  assigned  to  the  defendant,  and  also  an 
adjudication  that  the  plaintiff  is  entitled  to 
a  patent  for  the  improvement  covered  by 
the  Eppler  patent. 

A  suit  for  royalties  reserved  upon  the 
sale  of  a  patent  right  is  not  a  suit  arising 
under  the  patent  laws.  This  is  settled  by 
repeated  decisions.  Albright  v.  Teas,  lOG 
U.  S.  613,  27  L.  ed.  296,  1  Sup.  Ct.  Rep. 
550;  Excelsior  Wooden  Pipe  Ck>.  v.  Pacific 
Bridge  Co.  1S5  U.  S.  282,  285,  46  L.  ed.  91D, 
22  Sup.  Ct.  Rep.  681;  Geneva  Furniture 
Mfg.  Co.  V.  Karpen,  238  U.  S.  254,  259,  59 
L.  ed.  1295,  1297,  35  Sup.  Ct  Rep.  788,  and 
cases  cited. 

While  the  patent  laws  (Rev.  Stat.  S§  4915, 
4918,  Comp.  SUt.  1913,  §§  94G0,  9403)  per- 
mit an  applicant  for  a  patent  whose  appli- 
cation has  been  refused  by  the  Commissioner 
of  Patents,  or  by  the  court  of  appeals  ^  of 
the  District  of  Columbia  upon  appeal  from 
the  Commissioner,  to  establish  his  right  to 
receive  a  patent  by  a  suit  in  equity,  and 
also  permit  a  patentee  to  maintain  a  suit  in 
equity  a^^ainst  the  owner  of  an  interfering 
[50]  patent  to  annul  the  latter,  the  pres- 
ent bill  falls  so  far  short  of  presenting  a 
case  witliin  either  section  that  it  reasonably 
cannot  be  said  to  invoke  the  application  of 
either.  Recognizing  that  this  is  so,  counsel 
for  the  plaintiff,  in  his  brief,  not  only  frank- 
ly concedes  that  he  finds  no  statute  in  point, 
but  endeavors  to  maintain  the  jurisdiction 
of  the  district  court  by  a  reference  to  the 
general  powers  of  Federal  courts  when  sit- 
ting as  courts  of  equity;  evidently  forget- 
ting that  such  powers  can  be  exerted  only 
in  cases  otherwise  within  the  jurisdiction 
of  those  courts  as  defined  by  Congress. 

Some  stress  is  laid  in  the  brief  upon  por- 
tions of  the  bill  charging  fraud  in  the  pro- 
curement of  the  Eppler  patent,  but  aa  only 
the  United  States  can  maintain  a  bill  to 
annul  the  patent  on  that  ground  (Mowry 
T.  Whitney,  14  WaU.  434,  20  L.  ed.  858; 
United  States  v.  American  Bell  Teleph.  Co. 
128  U.  S.  315,  368,  32  L.  ed.  450,  462,  9 
Sup.  Ct.  Rep.  90;  United  States  v.  American 
BeU  Teleph.  Co.  159  U.  S.  548,  555,  40  L. 
ed.  255,  258,  16  Sup.  Ct.  Rep.  69)  these 
allegations  cannot  affect  the  solution  of  the 
question  of  jurisdiction  here  presented. 

Our  conclusion  is  that  this  is  not  a  suit 
arising  under  the  patent  laws. 

Decree  affirmed. 

1  See  §  9,  act  Feb.  9,  1893,  chap.  74,  27 

Stat  at  L.  434,  Comp.  SUt.  1913,  §  9456. 
«0  L.  ed. 


PENNSYLVANIA  COMPANY,  PUT.  in  Err., 
MARION  DONAT. 

(See  S.  C.  Reporter's  ed.  50-52.) 

Appeal  »  affirmance  on  motion  »  friv- 
olous contention. 

The  contention  that  a  railway  yard 
conductor,  injured  while  occupied  in  the 
removal  of  two  empt^  cars  from  a  private 
switch  track  to  permit  the  switching  there- 
on of  two  loaded  coal  cars  which  had  come 
from  without  the  state,  consigned  to  the 
owner  of  such  track,  was,  as  a  matter  of 
law,  not  engaged  at  the  time  in  interstate 
commerce,  is  so  frivolous  as  to  require  an 
affirmance  on  motion  of  a  judgment  of  a 
circuit  court  of  appeals  approving  the  ac- 
tion of  the  trial  court  in  submitting  the 
question  to  the  jury,  where  the  submission 
of  such  question  is  the  sole  error  asserted. 
[For  otlier  cnse».  «ee  App*»nl  and  Error,  VII. 
g,  in  Digest  Sup.  Ct.  1908.] 

[No.  564.] 

Submitted  October  18,  1915.     Decided  No- 
vember 1,  1915. 

IN  ERROR  to  the  United  States  CircuH 
Court  of  Appeals  for  the  Seventh  Cir- 
cuit to  review  a  judgment  which  affirmed 
a  judgment  of  the  District  Court  for  In- 
diana in  favor  of  plaintiff  in  an  action  un- 
der the  Federal  employers'  liability  act. 
Affirmed. 

See  same  case  below,  139  C.  C.  A.  665, 
224  Fed.  1021. 

Messrs.  Samuel  O.  Pickens  and  Fred- 
eric D.  McKenney  submitted  the  cause 
for  plaintiff  in  error.  Messrs.  Elmer  E. 
Leonard,  James  H.  Rose,  and  Fred  E.  Zol- 
lars  were  on  the  brief : 

The  facts  developed  in  this  case  clearly 
show  that  at  the  time  of  the  injury  to  the 
defendant  in  error  he  was  not  engaged  in 
interstate  commerce. 

United  States  v.  Western  k  A.  R.  Co.  184 
Fed.  336;  Atchison,  T.  k  S.  F.  R.  Co.  v. 
United  States,  117  C.  C.  A.  341,  198  Fed. 
637;  United  States  v.  New  York  C.  &  H.  R. 
R.  Co.  205  Fed.  428;  Illinois  C.  R.  Co.  v. 
Behrens,  233  U.  S.  473,  58  L.  ed.  1051,  34 
Sup.  Ct.  Rep.  646,  Ann.  Cas.  1914C,  163. 

Messrs.  Rufus  S.  Day,  Samuel  Her- 
rlck,  R.  B.  Newcomb,  and  James  B. 
Ifarper  submitted  the  cause  for  defendant 
in  error.  Messrs.  A.  G.  Newcomb,  E.  C. 
Chapman,    George    M.    Skiles,    Thomas   J. 

Note. — On  the  constitutionality,  applica- 
tion, and  effect  of  the  Federal  employers* 
liability  act — ^see  notes  to  Lamphere  v.  Ore- 
gon R.  t  Nav.  Co.  47  L.RJ^.(NJ3.)  38;  and 
Seaboard  Air  Line  R.  Co.  ▼•  Horton,  hJRjL. 
1915C,  47. 

tZ9 


51,  52 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


Green,  Roscoe  C.  Skiles,  mnd  Otto  E.  -Fuel- 
ber  were  on  the  brief: 

There  was  little  evidence,  if  any,  which 
even  indirectly  tended  to  show  that  the 
plaintiff  was  not  engaged  in  interstate  com- 
merce when  he  was  injured,  and  the  court 
was  entirely  fair  with  the  defendant  when 
he  allowed  the  jury  to  decide  the  question. 

New  York  C.  A  H.  R.  R.  Co.  v.  Carr,  238 
U.  S.  260,  50  L.  ed.  1208,  35  Sup.  Ct.  Rep. 
780,  0  N.  C.  C.  A.  1 ;  St.  Louis,  S.  F.  &  T.  R. 
Co.  V.  Seale,  220  U.  S  156,  162,  57  L.  ed. 
1120,  33  Sup.  Ct.  Rep.  651,  Ann.  Cas.  1014C, 
156;  North  Carolina  R.  Co.  v.  Zachary,  232 
U.  S.  248,  58  L.  ed.  501,  34  Sup.  Ct.  Rep. 
305,  Ann.  Cas.  1014C,  150;  Seaboard  Air 
Line  R.  Co.  v.  Moore,  228  U.  S.  433,  57  L. 
ed.  007,  33  Sup.  Ct.  Rep.  580. 

Memorandum  opinion  by  Mr.  Justice  Mc- 
Reynolds,  by  direction  of  the  court: 

The  question  presented  upon  this  writ  of 
error  is  "so  frivolous  as  not  to  need  further 
argument,"  and  the  motion  to  aflirm  the 
judgment  below  must  be  granted.  (Rule  6, 
§5.) 

Basing  his  claim  upon  the  employers'  lia- 
bility act  of  April  22,  1008  (35  Stat,  at 
L.  65,  chap.  140,  Comp.  Stat.  1013,  §  8657), 
Marion  Donat  began  the  original  action  in 
the  United  States  district  court  for  Indiana 
against  the  Pennsylvania  Company,  a  car- 
rier by  railroad,  to  recover  damages  for 
personal  injuries  alleged  to  have  been  suf- 
fered by  him  while  employed  as  a  yard  con- 
ductor. The  trial  court  refused  a  request 
to  charge  that  he  was  not  engaged  in  inter- 
state commerce  when  the  accident  occurred, 
and  therefore  could  not  recover.  [52]  This 
refusal  is  the  sole  ground  upon  which  error 
is  now  asserted. 

Two  loaded  coal  cars  coming  from  with- 
out the  state  were  received  in  the  carrier's 
yard  at  Fort  Wayne,  Indiana.  They  were 
destined  to  Olds'  private  switch  track  con- 
necting with  the  yard;  and,  acting  under 
instructions,  Donat  commenced  the  switch- 
ing movement  requisite  to  place  them  there- 
on. There  was  evidence  tending  to  show 
that,  in  order  to  complete  this  movement, 
it  became  necessary  to  uncouple  the  engine 
from  the  loaded  cars  and  with  it  to  remove 
two  empty  ones  from  the  private  track. 
While  engaged  about  the  removal,  defendant 
in  error  was  injured.  The  trial  court  sub- 
mitted to  the  jury  for  determination  wheth- 
er he  was  engaged  in  interstate  commerce 
at  the  time  of  the  injury,  and  in  approving 
such  action  (130  C.  C.  A.  665,  224  Fed. 
1021 )  the  circuit  court  of  appeals  was  clear- 
ly right.  New  York  C.  A  H.  R.  R.  Co.  v. 
Carr,  238  U.  S.  260,  262,  263,  50  L.  ed. 
1208,  1200,  1300,  35  Sup.  Ct.  Rep.  780,  0  N. 

V/.     V/.     Am     JL* 

Affirmed. 


CHICAGO,   ROCK    ISLAND,   &   PACIFIC 
RAILWAY  COMPANY,  Plff.  in  Err., 

V. 

JOHN  F.  DEVINE,  as  Administrator  of  the 
Estate  of  William  J.  Mason,  Deceased. 

(See  S.  C.  Reporter's  ed.  52-54.) 

Error  to  state  court  ^  Federal  qaestioD 
^  employers'  liablHty. 

1.  Federal  questions  which  will  give 
jurisdiction  to  toe  Federal  Supreme  Court 
of  a  writ  of  error  to  a  state  court  in 
a  case  arising  under  the  Federal  employers'^ 
liability  act  of  April  22,  1008  (35  SUt.  at 
L.  65,  chap.  140,  Comp.  SUt.  1013,  §  8657 )» 
are  presented  by  contentions  that  the  trial 
court  erred  in  refusing  to  instruct  a  verdict 
on  the  ground  that  there  was  no  evidence 
tending  to  show  either  negligence  or  that 
the  carrier  or  the  deceased  at  the  time  of 
the  particular  transaction  from  which  the 
injury  arose  was  engaged  in  interstate  com- 
merce, and  in  further  refusing  to  instruct 
the  jury  that  a  state  statute  limiting  the 
amount  of  recovery  was  controlling. 

[For  other  cases,  see  Appeal  nnd  Error,  17ol- 
1707,  in  DIgrest  Sup.  Ct.  1008.) 

Error  to  state  court  ^  dismissal  on  mo* 
tion. 

2.  A  writ  of  error   from   the   Federal 
Supreme  Court  to  a  state  court  will  not  be 
dismissed  on  motion  where  the  Federal  ques- 
tions involved  are  not  wholly  frivolous. 
[For  other  cases,  see  Api>e»l  Hnd  Error,  VII, 

i.  2.  in  DlROBt  Sup.  Ct.  1008.] 
Error  to  state  court  ^  alflmiancc  on 
motion  ^  lack  of  merit  In  Federal 
question. 

3.  The  contention  on  a  writ  of  error  to 

McfE. — On  the  general  subject  of  writs  oi 
error  from  the  United  States  Supreme  Court 
to  state  courts — see  notes  to  Martin  v. 
Hunter,  4  L.  ed.  U.  S.  07;  Ilainblin  v. 
Western  Land  Co.  37  L.  ed.  U.  S.  267;  Ke 
Buchanan,  30  L.  ed.  U.  S.  884,  and  Kipley 
V.  Illinois,  42  L.  ed.  U.  S.  008. 

On  what  adjudications  of  state  courts  can 
be  brought  up  for  review  in  the  Supreme 
Court  ot  the  United  States  by  writ  of  error 
to  those  courts — see  note  to  Apex  Transp. 
Co.  v.  Garbade,  62  L.R.A.  513. 

On  how  and  when  questions  must  be 
raised  and  decided  in  a  state  court  in  order 
to  make  a  case  for  a  writ  of  error  from  the 
Supreme  Court  of  the  United  States — see 
note  to  Mutual  L.  Ins.  Co.  v.  McGrew,  6& 

On  what  the  record  must  show  respect- 
ing the  presentation  and  decision  of  a  Fed- 
eral question  in  order  to  confer  jurisdic- 
tion on  the  Supreme  Court  of  the  United 
States  on  writ  of  error  to  a  state  court- 
see  note  to  Hooker  v.  Los  Angeles,  63  L.K.A. 
471. 

As  to  the  necessity  of  color  of  merit  in 
Federal  question  to  sustain  writ  of  error 
to  state  court — see  note  to  Oflield  v.  New 
York,  N.  H.  &  H.  R.  Co.  51  L.  cd.  U.  S. 
231. 

On  the  constitutionality,  aiplication,  and 
effect  of  the  Federal  employers'  liability  act 
— see  notes  to  Lamphere  v.  Oregon  R.  & 
Nav.  Co.  47  L.R.A.(N.S.)  38,  and  Seaboard 
Air  Line  R.  Co.  L.R.A.1015C,  47. 

239  U.  S» 


1915. 


CHICAGO,  R.  I.  ft  P.  R.  CO.  v.  DEVIKE 


a  state  court  in  a  case  ariaine  under  the  em- 
plovers'  liability  act  of  April  22,  1908  (35 
but.  at  L.  Go,  chap.  149,  Comp.  Stat.  1913, 
I  8657),  that  the  trial  court  should  have 
instnictcd  a  verdict  in  favor  of  the  railway 
company,  on  the  ground  that  there  was  no 
evidence  tending  to  show  either  negligence 
or  that  the  company  or  the  deceased  at  the 
time  of  the  particular  transaction  from 
which  the  injury  arose  was  engaged  in  in- 
terstate commerce, — la  too  lacking  in  sub> 
stance  to  prevent  the  grantins  of  a  motion 
to  afUrm,  where  what  is  really  involved  is 
a  mere  dispute  concerning  the  weight  of 
conflicting  tendencies  of  proof. 
(For  othpr  canes,  see  "Apneal  and  Error,  VII. 
K.  in  Digest  Sap.  Ct.  1908.] 

Error  to  state  court  —  afflrmanoe  on 
motion  —  lack  of  merit  in  Federal 
question. 
4.  The  want  of  merit  in  the  contention 
that  a  state  statute  limiting  the  amount 
of  recovery  is  controlling  in  a  suit  arising 
under  the  Federal  employers'  liability  act 
of  April  22,  3908  (35  Stat,  at  L.  65,  chap. 
149,  Comp.  Stat.  1913,  §  8657),  ia  so  well 
cstablislifd    by    previous    decisions    of    the 
Federal  Supreme  Court  concerning  the  ex- 
clusive operation  and  effect  of  that  statute 
over  the  subject  with  which  it  deals  that  the 
presence  of  such  question  in  the  case  will 
not  prevent  the  Federal  Supreme  Court  from 
granting  a  motion  to  affirm  the  judgment 
OD  a  writ  of  error  to  a  state  court. 
[For  other  cases,  see  Appeal  and  Error,  VII. 
g,  in   Dlffest   Sup.  Ct.  1908.] 

[No.  391.] 

Submitted  October  25,  1916.     Decided  No- 
vember 8,  1915. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  niinoia  to  review  a  judj^ment 
which  affirmed  a  judgment  of  the  Illinois 
Appellate  Court,  affirming  a  judgment  of  the 
Circuit  Court  of  Cook  County,  in  that  state, 
in  favor  of  plaintiff  in  an  action  under  the 
Federal  employers'  liablity  act.    Affirmed. 

See  same  case  below,  266  111.  248,  107  N. 
E.  505. 

Messrs.  Thomas  P.  lilttlepage  and  M. 
Tu  Bell  submitted  the  cause  for  plaintiff  in 
error: 

A  Federal  right  has  been  denied  as  a 
result  of  a  finding  of  fact  which  is  without 
anpport  in  the  evidence. 

Southern  P.  Co.  v.  Schuyler,  227  U.  S. 
601,  611,  57  L.  ed.  662,  669,  4  L.RJ^.(N.S.) 
901,  33  Sup.  Ct.  Rep.  277. 

The  claim  that  defendant  in  error  did  not 
show  that  at  the  time  of  the  accident  de- 
ceased was  employed  in  interstate  commerce 
ia  a  question  which  can  now  be  reviewed. 

North  Carolina  R.  Co.  v.  Zachary,  232  U. 
8.  248,  257,  58  L.  ed.  591,  595,  34  Sup.  Ct. 
Rep.  305,  Ann.  Caa.  1914C,  159;  St.  Louis, 
I.  M.  &  S.  R.  Co.  T.  McWhirter,  229  U.  S. 
265,  275,  277,  57  U  ed.  1179,  1185,  1186, 
•0  L.  ed. 


33  Sup.  Ct.  Rep.  858;  Seaboard  Air  Line  R. 
Co.  V.  Padgett,  236  U.  S.  668,  673,  59  L. 
ed.  777,  781,  35  Sup.  Ct.  Rep.  481;  Cen- 
tral Vermont  R.  Co.  v.  White,  238  U.  S. 
507,  509,  59  L.  ed.  1433,  1435,  35  Sup.  Ct. 
Rep.  865,  9  N.  C.  C.  A.  265. 

Even  if,  according  to  the  Illinois  proced- 
ure, the  claim  had  not  been  properly  raised 
prior  to  the  time  the  supreme  court  was 
reached,  the  fact  that  the  supreme  court  in 
its  decision  considered  and  passed  upon  the 
question  shows  that  it  was  raised  for  the 
purpose  of  this  court's  ccmsideration  on  a 
writ  of  error. 

North  Carolina  R.  Co.  v.  Zachary,  232 
U.  S.  257,  58  L.  ed.  595,  34  Sup.  Ct.  Rep. 
305,  Ann.  Caa.  1914C,  159. 

There  was  power  in  Congress  to  regulate 
the  relations  between  a  common  carrier  and 
its  employee  only  when  by  so  doing  it  was 
at  the  same  time  making  valid  regulations 
as  to  interstate  commerce. 

Second  Employers'  Liability  Cases  (Mon- 
dou  V.  New  York,  N.  H.  ft  H.  R.  Co.)  223  U. 
S.  1,  48,  56  L.  ed.  327,  345,  38  L.ItA.(N.S.) 
44,  32  Sup.  Ct.  Rep.  169,  1  N.  C.  C.  A.  875. 

The  state  has  power  to  regi^ate  all  the 
relations  between  master  and  servant,  even 
though  both  are  engaged  in  interstate  com- 
merce, until  Congress  acts  with  reference 
to  some  particular  relation. 

Missouri  P.  R.  Co.  v.  Castle,  224  U.  S. 
541,  544,  56  L.  ed.  875,  878,  32  Sup.  Ct. 
Rep.  606. 

We  claimed  in  the  trial  court,  in  the  ap- 
pellate court,  and  in  the  supreme  court  that 
under  the  proper  construction  of  the  Federal 
employers'  liability  act  the  judgment  should 
not  have  been  for  a  greater  sum  than  $10,- 

000,  which  claim  was  denied.  Such  a  ques- 
tion ia  subject  to  review  on  this  writ  of 
error. 

St.  Louis,  I.  M.  ft  S.  R.  Co.  v.  McWhirter, 
229  U.  S.  265,  275,  57  L.  ed.  1179,  1185,  33 
Sup.  Ct.  Rep.  858;  St.  Louis,  I.  M.  ft  S. 
R.  Co.  V.  Taylor,  210  U.  S.  281,  52  L.  ed. 
1061,  28  Sup.  Ct.  Rep.  616,  21  Am.  Neg. 
Rep.  464;  Seaboard  Air  Line  R.  Co.  v.  Hor- 
ton,  233  U.  S.  492,  499,  58  L.  ed.  10.62,  1068, 
LJI.A.1915C,  1,  34  Sup.  Ct.  Rep.  635,  8  N. 
C.  C.  A.  834,  Ann.  Caa.  1915B,  475. 

The  finding  of  negligence  on  the  part  of 
plaintiff  in  error  ia  without  support  in  the 
evidence.  Such  a  claim  involves  a  Federal 
question  reviewable  in  this  court. 

Central  Vermont  R.  Co.  v.  White,  238  U. 
S.  .507,  509,  59  L.  ed.  1433,  1435,  35  Sup. 
Ct.  Rep.  865,  9  N.  C.  C.  A.  265;  St.  Louis, 

1.  M.  ft  S.  R.  Co.  V.  McWhirter,  229  U.  S. 
265,  277,  281,  57  L.  ed.  1179,  1186,  1187, 
33  Sup  Ct.  Rep.  858. 

Mr.  James  O.  McSIianc  submitted  the 
cause  for  defendant  in  error: 
The  Federal  act  covers  the  entire  subject 

141 


53-65 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Tbbk» 


as  to  the  amount  of  damages  recoverable  in 
such  cases,  and  it  follows  that  it  supersedes 
the  state  act  in  that  regard. 

Michigan  C.  R.  Co.  v.  Vreeland,  227  U. 
S.  69,  67  L.  ed.  417,  33  Sup.  Ct.  Rep.  102, 
Ann.  Cas.  1014C,  176;  Missouri,  K.  &  T.  R. 
Co.  V.  Wulf,  226  U.  S.  670,  67  L.  ed.  366, 
33  Sup.  Ct.  Rep.  136,  Ann.  Cas.  1914B,  134; 
St.  Louis,  S..F.  k  T.  R.  Co.  v.  Scale,  220  U. 
S.  168,  67  L.  ed.  1133,  33  Sup.  Ct.  Rep.  661, 
Ann.  Cas.  1014C,  166;  St.  Louis,  I.  M.  & 
S.  R.  Co.  V.  Hesterly,  228  U.  S.  703,  57  L. 
ed.  1033,  33  Sup.  Ct.  Rep.  703;  Thombro 
V.  Kansas  City,  M.  k  O.  R.  Co.  01  Kan.  684, 
130  Pac.  410,  Ann.  Cas.  1016D,  314;  Illi- 
nois C.  R.  Co.  V.  Doherty,  163  Ky.  363,  47 
L.R.A.(N.S.)  31,  166  S.  W.  1110;  Louisville 
&  N.  R.  Co.  V.  Stewart,  167  Ky.  642,  163 
S.  W.  766 ;  Chesapeake  &  O.  R.  Co.  v.  Dwyer, 
167  Ky.  600,  163  S.  W.  762. 

A  question  of  fact  decided  on  by  a  jury  in 
a  state  court  cannot  be  re-examined  by  the 
Supreme  Court  of  the  United  States  upon 
writ  of  error. 

3  Foster,  Fed.  Pr.  6th  ed.  p.  2306;  Mis- 
souri, K.  &  T.  R.  Co.  V.  Haber,  160  U.  S. 
613,  42  L.  •d.  878,  18  Sup.  Ct.  Rep.  488; 
Southern  R.  Co.  v.  Carson,  104  U.  S.  136- 
140,  48  L.  ed.  007-010,  24  Sup.  Ct.  Rep.  600. 

Counsel  will  no  doubt  concede,  as  they 
did  in  the  state  court,  that  if  there  was 
one  or  more  cars,  either  loaded  or  empty, 
in  deceased's  train,  which  was  then  being 
moved  upon  an  interstate  journey,  deceased 
was  necessarily  employed  in  interstate  com- 
merce within  the  meaning  of  the  act. 

See  St.  Louis,  S.  F.  k  T.  R.  Co.  v.  Scale, 
220  U.  S.  167,  57  L.  ed.  1133,  33  Sup.  Ct. 
Rep.  661,  Ahn.  Cas.  1014C,  156;  Seaboard 
Air  Line  R.  Co.  v.  Moore,  228  U.  S.  433,  67 
L.  ed.  007,  33  Sup.  Ct.  Rep.  680;  Johnson 
V.  Great  Northern  R.  Co.  102  C.  C.  A.  80, 
178  Fed.  643;  North  Carolina  R.  Co.  v. 
Zachary,  232  U.  S.  248,  68  L.  ed.  601,  34 
Sup.  Ct.  Rep.  305,  Ann.  Cas.  1014C,  160. 

Memorandum  opinion  by  Mr.  Chief  Jus- 
tice White,  by  direction  of  the  court: 

The  recovery  under  the  employers'  liabil- 
ity act  in  the  trial  court,  affirmed  by  the 
intermediate  and  supreme  court,  was  for 
the  damage  caused  by  the  death  of  Mason 
through  the  negligence  of  the  defendant 
company.  266  111.  248,  107  N.  E.  605.  [54] 
Two  propositions  are  relied  upon  for  re- 
versal :  first,  a  refusal  to  instruct  a  verdict 
on  the  ground  that  there  was  no  evidence 
tending  to  show  either  negligence  or  that  the 
company  or  the  deceased  at  the  time  of  the 
particular  transaction  from  which  the  in- 
jury arose  was  engaged^in  interstate  com- 
merce; and  second,  a  further  refusal  to  in- 
struct that  a  state  statute  limiting  the 
amount  of  recovery  was  controlling  although 
the  suit  was  under  the  act  of  Congress. 
142 


These  contentions  are  Federal  (Seaboard 
Air  Line  R.  Co.  v.  Padgett,  236  U.  S.  668, 
673,  50  L.  ed.  777,  781,  35  Sup.  Ct.  Rep. 
481;  Central  Vermont  R.  Co.  v.  White,  238 
U.  S.  507,  509,  50  L.  ed.  1433,  1435,  35  Sup. 
Ct.  Rep.  865),  and  there  is  jurisdiction,  as 
we  do  not  find  them  wholly  frivolous. 

Overruling  the  motion  to  dismiss,  we 
come  to  consider  whether  we  should  grant 
the  motion  to  affirm,  and  for  that  purpose 
we  must  decide  whether  the  propositions 
are  so  wanting  in  substance  as  not  to  re- 
quire further  argument.  Rule  6,  paragraph 
5.  We  are  of  the  opinion  that,  as  to  both 
propositions,  an  affirmative  answer  is  re- 
quired. We  say  this  because  as  to  the  first 
it  is  apparent  that  there  is  no  ground  upon 
which  to  rest  the  assertion  that  there  was 
no  tendency  of  proof  whatever  on  the  sub- 
jects stated,  but,  to  the  contrary,  the  record 
makes  it  clear,  and  the  arguments  in  sup- 
port of  the  proposition  demonstrate,  that  it 
alone  involves  a  mere  dispute  concerning 
the  weight  of  conflicting  tendencies  of  proof. 
And  the  same  conclusion  is  necessary  as  to 
the  second,  because  in  substance  and  eflfect 
i  the  want  of  merit  in  that  proposition  lias 
by  necessary  intendment  been  so  conclu- 
sively established  by  the  previous  decisions 
of  this  court  concerning  the  exclusive  opera- 
tion and  effect  of  the  employers'  liability 
act  over  the  subject  with  which  it  deals  as 
to  exclude  all  ground  for  the  contention 
which  the  proposition  makes.  Second  Em- 
ployers' Liability  Cases  (Mondou  v.  New 
York,  N.  H.  &  H.  R.  Co.)  223  U.  S.  1,  53-55, 
56  L.  ed.  327,  347,  348,  38  L.R.A.(N.S.) 
44,  32  Sup.  Ct.  Rep.  160,  1  N.  C.  C.  A. 
875;  Michigan  C.  R.  Co.  v.  Vreeland,  227 
U.  S.  50,  66,  67,  67  L.  ed.  417,  419,  420, 
33  Sup.  Ct.  Rep.  192,  Ann.  Cas.  1914C, 
176;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Craft, 
237  U.  S.  648,  655,  59  L.  ed.  1160,  1162,  35 
Sup.  Ct.  Rep.  704. 
Affirmed. 


[55]    CHARLES  M.  STRATTON,  Plff.  in 

Err., 

V. 

WALKER  B.  STRATTON. 
(See  S.  C.  Reporter's  ed-  56-57.) 

Error   to   state   court  —  judgment   of 
highest  court  ot  state. 

A  judgment  of  an  Ohio  district  court 
of  appeals  is  not  that  of  the  highest  court  of 

Note. — ^As  to  when  writ  of  error  may  run 
to  inferior  state  court — see  note  to  Ken- 
tucky V.  Powers,  50  L.  ed.  U.  S.  633. 

As  to  when  judgment  sought  to  be  re- 
viewed in  Federal  Supreme  Court  ia  that 
of  highest  state  court — see  note  to  Norfolk 
&  S.  Tump.  Co.  V.  Virginia,  56  L.  ed.  U. 
S.    1082. 

2Z9  U.  S. 


1915. 


NEW  YORK  T.  8AQS. 


66-«7 


the  state  in  which  a  decision  in  the  suit  can 
be  bad,  which  alone  is  reviewable  in  the 
Federal  Supreme  Court,  where  the  supreme 
court  of  Ohio  has  not  been  called  upon  to 
decide  whether  or  not  it  will  exert  its  dis- 
cretionary power  under  the  state  Consti- 
tution and  laws  to  review  judgments  of  the 
district  courts  of  appeals  in  cases  of  public 
or  great  general  interest. 
IFor  other  cases,  see  Appeal  and  Error,  1147> 
11G7,  In  Digest  Sup.  Ct.  19US.J 

[No.  618.] 

Submitted  October  25,  1916.     Decided  No- 
vember 8,  1915. 

IN  EKROR  to  the  Court  of  Appeals  of  the 
Seventh  Appellate  District  of  the  State 
of  Ohio  to  review  a  judgment  in  favor  of 
plaintifT  on  the  trial  de  novo  of  an  action 
on  a  contract  which  Imd  been  appealed  to 
that  court  from  the  Common  Pleas  Court  of 
JefTerson  County  in  that  state.  Dismissed 
for  want  of  jurisdiction. 

Mr.  Addison  €.  Ijewls  submitted  the 
cause  for  plaint ifT  in  error.  Mr.  David  M. 
Gruber  was  on  the  brief. 

Mr.  D.  A.  Hollinesworth  submitted  the 
eause  for  defendant  in  error.  Messrs.  C.  A. 
Vail  and  £.  £.  Erskine  were  on  the  brief. 

Memorandum  opinion  by  Mr.  Chief  Jus- 
tice White,  by  direction  of  the  court: 

To  reverse  a  judgment  rendered  by  the 
Ohio  court  of  appeals  of  the  seventh  appel- 
late district  on  the  ground  of  [56]  Federal 
errors  committed,  this  writ  of  error  is  pros- 
ecuted to  that  court.  There  is  a  motion  to 
dismiss,  based  on  the  ground  that  the  court 
of  last  authority,  the  supreme  court  of  the 
state,  was  the  highest  court  in  which  a 
decision  in  the  suit  could  be  had.  This 
rests  not  upon  the  contention  that  in  all 
cases,  as  a  matter  of  right  and  of  duty, 
the  supreme  court  was  given  authority  to 
review  the  judgments  and  decrees  of  the 
courts  of  appeals,  but  upon  the  proposition 
that,  under  the  Constitution  and  laws  of 
Ohio,  the  supreme  court  was  vested  with 
power  to  review  in  every  case  the  judgments 
or  decrees  of  the  courts  of  appeals  where, 
in  the  exercise  of  its  judgment,  the  supreme 
court  deemed  them  to  be  of  such  public  or 
great  general  interest  as  to  require  review. 

The  premise  upon  which  the  proposition 
is  based  being  undoubtedly  accurate,  indeed, 
not  disputal:le  (Ohio  Const,  art.  4,  §  2; 
Akron  v.  Kotli,  88  Ohio  St.  457,  103  N.  E. 
465),  we  think  the  motion  to  dismiss  must 
prevail.  True,  it  is  urged  that  under  the 
Ohio  law  tlie  jurisdiction  of  the  supreme 
court  was  not  imperative,  but  gracious  or 
discretionary,  that  is,  depending  upon  its 
judgment  as  to  whether  the  case  was  one 
€0  Jj.  cd. 


of  public  or  great  general  interest,- 
exceptional  class  in  which*  the  case  before 
us,  it  is  insisted,  we  must  now  decide  was 
not  embraced.  But  this  simply  invites  us 
to  assume  jurisdiction  by  exercising  an  au- 
thority which  we  have  not;  that  is,  by 
indulging  in  conjecture  as  to  what  would 
or  would  not  have  been  the  judgment  of  the 
supreme  court  of  Ohio  if  it  had  been  called 
upon  to  exert  the  discretion  vested  in  it 
by  state  laws.  When  the  significance  of  the 
proposition  upon  which  the  claim  of  juris- 
diction is  based  is  thus  fixed,  it  is  not  open 
to  contention,  as  it  has  long  since  been 
adversely  disposed  of.  Fisher  v.  Perkins 
(Fisher  v.  Carrico)  122  U.  S.  522,  30  L.  ed. 
11^2,  7  Sup.  Ct.  Rep.  1227;  Mullen  v. 
Western  Union  Beef  Co.  173  U.  S.  116,  43  L. 
ed.  635,  19  Sup.  Ct.  Rep.  404.  Indeed,  con- 
forming to  the  rule  thus  thoroughly  estab- 
lished, the  practice  for  years  has  been  in 
the  various  states  where  discretionary  pow- 
er [57]  to  review  exists  in  the  highest  court 
of  the  state,  to  invoke  the  exercise  of  such 
discretion  in  order  that,  upon  the  refusal 
to  do  so,  there  might  be  no  question  con- 
cerning the  right  to  review  in  this  court. 
See  Western  U.  Teleg.  Co.  v.  Crovo,  220 
U.  S.  364,  55  L.  ed.  498,  31  Sup.  (X  Rep. 
339;  Norfolk  k  S.  Tump.  Co.  v.  Virginia, 
225  U.  S.  264,  56  L.  ed.  1082,  32  Sup.  Ct. 
Rep.  828;  St.  Louis,  S.  F.  &  T.  R.  Co.  v. 
Scale,  229  U.  S.  156,  57  L.  ed.  1129,  33  Sup. 
Ct.  Rep.  651,  Ann.  Cas.  1914C,  156. 
Dismissed  for  want  of  jurisdiction. 


CITY  OF  NEW  YORK,  Petitioner, 

V. 

WILLIAM  SAQE,  Jr. 
(See  S.  0.  Reporter's  ed:  57-62.) 

Damages  ^  eminent  domain  —  union 
with  other  lands. 
1.  Compensation  to  the  owner  of  one 
of  many  parcels  of  land  taken  by  eminent 

NoTB. — On  special  value  of  property  for 
purpose  for  which  it  is  taken  as  an  ele- 
ment of  compensation  in  condemnation  pro- 
ceedings—^ee  notes  to  Sargent  v.  Merrimac, 
11  L.R.A.(N.S.)  996,  and  McGovern  v.  New 
York,  46  L.RJ^.(N.S.)  392. 

As  to  damages  in  acquisition  of  water 
supply  by  right  of  eminent  domain — see 
note  to  Stearns  v.  Barre,  68  L.R.A.  240. 

On  removal  of  causes  in  cases  of  diverse 
citizenship-— see  notes  to  Whelan  v.  New 
York,  L.  E.  &  W.  R.  Co.  1  L.R.A.  65;  Sed- 
don  V.  Virginia,  T.  k  C.  Steel  &  I.  Co.  1 
L.R.A.  108;  Huskins  v.  Cincinnati,  N.  0.  & 
T.  P.  R.  Co.  3  L.RJ^.  545;  Bierbower  v. 
Miller,  9  L.RJ^.  228;  Brodhead  v.  Shoe- 
maker, 11  L.R.A.  567;  Delaware  R.  Constr. 
Co.  V.  Meyer,  26  L.  ed.  U.  S.  693;  Butler 
V.  National  Home,  36  L.  ed.  U.  S.  346;  and 
Torrence  v.  Shedd,  36  L.  ed.  U.  8.  528. 

14> 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TeRic, 


domain  for  a  site  for  a  reservoir  for  a  mu- 
nicipal water  supply  should  not  include 
any  part  of  an  increase  in  value  for  that 
purpose  due  to  its  union  with  other  par- 
cels if  such  union  would  not  have  been  prac- 
ticable, or  have  been  attempted,  except  by 
the  int-nrentiou  of  eminent  domain. 
[For  other  cnses,  see  Damages,  VI.  m»  In  Digest 
Sup.  Ct.  1908.] 

Removal  of  causes  ~  time  for  removal 
—  oondemnatlon  proceedings. 

2.  Condemnation  proceedings  cannot  be 
deemed  to  have  been  commenced  betore  a 
conveyance  of  the  land  so  as  to  preclude  the 
vendee  from  removing  the  suit  to  a  Federal 
court  for  diverse  citizenship,  where  the  peti- 
tion for  the  appointment  of  commissioners 
was  not  filed  until  after  the  conveyance  had 
been  made,  although  the  maps  showing  the 
parcels  of  real  estate  to  be  taken  had  been 
tiled,  and  notices  had  been  posted  on  the 

roperty  before  such  conveyance. 

For  otber  coses,  see  Removal  of  Causes,  VII. 
a,  in  Digest  Sup.  Ct.  1908.] 

[No.  34.] 


f- 


Argued  October  27,  1915.    Decided  Novem- 
ber 8,  1915. 

ON  WRIT  of  Certiorari  to  the  United 
States  Circuit  Court  of  Appeals  for  the 
Second  Circuit  to  review  a  judgment  which 
afiirmed  a  judgment  of  the  Circuit  Court 
for  the  Southern  District  of  New  York, 
confirming  the  report  of  commissioners  in 
condemnation  proceedings.     Reversed. 

See  same  case  below,  124  C.  C.  A.  251, 
206  Fed.  369. 

The  facts  are  stated  in  the  opinion. 

Messrs.  liouls  C.  White  and  William 
McM.  Speer  argued  the  cause,  and,  with 
Mr.  Frank  L.  Polk,  filed  a  brief  for  peti- 
tioner : 

The  circuit  court  of  appeals  erred  in  hold- 
ing this  case  to  be  within  the  principle  laid 
down  in  Mississippi  &  R.  River  Boom  Co. 
▼.  Patterson,  98  U.  S.  403,  25  L.  ed.  206. 

Boston  Chamber  of  Commerce  v.  Boston, 
217  U.  S.  189,  64  L.  ed.  725,  30  Sup.  Ct.  Rep. 
459 ;  United  States  v.  Chandler-Dunbar  Wat- 
er Power  Co.  229  U.  S.  53,  67  L.  ed.  1063, 
33  Sup.  Ct.  Rep.  667;  McGovem  ▼.  New 
York,  22D  U.  S.  363,  57  L.  ed.  1228,  46 
L.R.A.(N.S.)  391,  33  Sup.  Ct.  Rep.  876; 
Minnesota  Rate  Cases  (Simpson  v.  Shepard) 
230  U.  S.  352,  67  L.  ed.  1511,  48  L.RJ^. 
(N.8.)  1161,  33  Sup.  a.  Rep.  729. 

7 lie  state  courts  having  held  that  there 
can  be  no  recovery  for  reservoir  availability 
and  adaptability  of  parcels  taken  by  the 
city  of  New  York  for  the  Ashokan  reser- 
voir, considered  in  connection  with  other 
parcels,  the  Federal  court  will  accept  those 
decisions  as  the  law  of  the  state  of  New 
York,  and  as  binding  on  it. 

Boston  Chamber  of  Commerce  v.  Boston, 
144 


217  U.  S.  189,  64  L.  ed.  726,  30  Sup.  Ct. 
Rep.  459;  A.  Backus  Jr.  &  Sons  v.  Fort 
Street  Union  Depot  Co.  169  U.  S.  657,  42  U 
ed.  853,  18  Sup.  Ct.  Rep.  445;  Burgess  ▼. 
Seligman,  107  U.  S.  20,  27  L.  ed.  369,  2 
Sup.  Ct.  Rep.  10. 

Mr.  Edward  A.  Alexander  argued  the 
cause  and  filed  a  brief  for  respondent: 

The  city  acquires  no  l^al  title  to  land 
by  merely  filing  maps,  and  it  only  com- 
mences the  proceeding  when  its  petition  for 
the  acquisition  of  land  has  been  filed  in 
court. 

1  Cyc.  761;  Re  Bradley,  70  Hun,  104,  23 
N.  Y.  Supp.  1127. 

A  condemnation  case  is  a  special  pro- 
ceeding, and  not  an  action  within  the  New 
York  Code, 

2  Lewis,  Em.  Dom.  p.  929;  King  v.  New 
York,  36  N.  Y.  182;  Re  Peterson,  94  App. 
Div.  143,  87  N.  Y.  Supp.  1014;  Re  Roches- 
ter, 102  App.  Div.  99,  92  N.  Y.  Supp.  478. 

The  making  and  filing  of  a  descriptive 
map  of  a  proposed  reservoir  is  not  a  tak- 
ing, unless  expressly  made  so  by  statute. 

16  Cyc.  668,  669;  New  York  C.  &  H.  R. 
R.  Co.  V.  State,  37  App.  Div.  57,  55  N.  Y. 
Supp.  686;  2  Lewis,  Em.  Dom.  3d  ed.  §  566, 
pp.  1007  et  seq. 

^  The  findings  of  the  commissioners  of  ap- 
praisal constituted  a  finding  of  fact  that 
the  market  value  of  the  parcel  of  land  in 
question  had  been  enhanced  by  reason  of 
the  fact  that  it  was  part  of  a  natural  res- 
ervoir site,  for  which  there  had  been  pre- 
vious demands  in  the  open  market. 

Re  Simmons,  130  App.  Div.  364,  114  N. 
Y.  Supp.  671;  McGovem  v.  New  York,  229 
U.  S.  363,  371,  57  L.  ed.  1228,  1231,  46 
L.R.A.tN.S.)  391,  33  Sup.  Ct.  Rep.  876;  Peo- 
ple V.  Fish,  126  N.  Y.  160,  26  N.  E.  319; 
People  V.  Cignarale,  110  N.  Y.  23,  17  N.  E. 
136;  New  \oTk  v.  Smith,  138  N.  Y.  676,  34 
N.  E.  400;  Knight  v.  Wilson,  55  Hun,  669, 
9  N.  Y.  Supp.  20;  Gibbons  v.  Van  Alstyne, 
20  N.  Y.  S.  R.  461,  9  N.  Y.  Supp.  166 ;  Man- 
dftville  V.  Reynolds,  68  N.  Y.  634;  Devlin  v. 
Greenwich  Sav.  Bank,  126  N.  Y.  756,  26 
N.  E.  744;  Jencks  v.  Smith,  1  N.  Y.  94. 

The  adaptability  of  land  for  use  as  a  res- 
ervoir, or  for  water  supply  purposes,  has 
been  uniformly  taken  into  consideration  as 
an  element  of  value  of  such  land  in  a  num- 
lier  of  well  decided  and  carefully  considered 
cases,  both  in  the  United  States  and  Great 
Britain. 

Re  Gilroy,  85  Hun,  424,  32  N.  Y.  Supp. 
891;  Re  Daly,  72  App.  Div.  396,  76  N.  Y. 
Supp.  28;  Re  Gough  [1904]  1  K.  B.  417,  73 
L.  J.  K.  B.  N.  8.  228,  68  J.  P.  229,  62  Week, 
Rep.  662,  90  L.  T.  N.  S.  43,  20  Timea  L.  R. 
179;  College  Point  v.  Dennett,  5  Thomp.  ft 
C.  217,  2  Hun,  669;  Great  Falls  Mfg.  Go. 
V.  United  States,  16  Ct.  CI.  160.  affirmed  in 

.239  U.  8. 


i 


1915. 


NSW  YORK  T.  SAGS. 


112  U.  S.  645,  28  L.  ed.  846.  5  Rap.  Ct.  Bep. 
306;  Q«arhart  ▼.  Clear  Spring  Water  Ck>. 
202  Pa.  292,  51  Atl.  891;  Moulton  v.  Kew- 
Imryport  Water  Go.  137  Mass.  163;  San 
Diego  Land  ft  Town  Co.  v.  Neale,  78  Cal.  63, 

3  L.R.A.  83,  20  Pac.  372;  Sargent  Y.  Merri- 
mac,  196  Mass.  171,  11  L.R.A.(K.S.)  996, 
124  Am.  St.  Rep.  528,  81  N.  E.  970;  Seattle 
ft  M.  R.  Co.  y.  Mulphine,  4  Wash.  457,  30 
Pac.  720;  Spring  Valley  'Waterworks  v. 
Drinkhouss,  92  Cal.  528,  28  Pac.  681;  2 
Lewis,  Em.  Dom.  §  479;  4  Sedgw.  Damages, 
^  1179;  16  Cyc.  757,  768. 

Til  is  case  is  within  the  principle  laid 
down  in  Mississippi  ft  R.  River  Boom  Co. 
T.  Patterson,  98  U.  S.  403,  25  Jf.„f^  ?06. 

2  Le\yi8,  Em.  Dom.  3d  ed.  §  707,  p.  1233; 
6  Sedgw.  Damages  §  1075;  Louisville,  N. 
0.  ft  T.  R.  Co.  V.  Ryan,  64  Miss.  399,  8 
So.  173;  Seattle  ft  M.  R.  Co.  ▼.  Mulphine, 

4  Wash.  457,  30  Pac.  720;  Re  Staten  Is- 
land R.  Co.  10  N.  T.  S.  R.  393;  Sanitary 
Dist.  V.  Loughran,  100  lU.  365,  43  N.  E. 
:359;  Payne  v.  Kansas  ft  A.  Valley  R.  Co. 
46   Fed.   557. 

While,  in  this  case,  the  evidence  is  nn- 
•disputed  that  there  were  prior  demands  for 
this  property  for  reservoir  purposes,  not 
•only  on  behalf  of  the  city,  but  oH  behalf  of 
•other  municipalities,  and  on  behalf  of  the 
Ramapo  Water  Company,  it  is  unnecessary 
to  prove  any  prior  demands  in  order  to 
entitle  the  owner  to  this  element  of  value 
in  his  property,  and  evidence  introduced  to 
prove  such  element  of  value  is  not,  in  any 
-sense,  speculative. 

Langdon  v.  New  York,  133  N.  Y.  628,  630, 
31  N.  E.  98;  Orleans  ft  J.  R.  Co.  v.  Jeffer- 
son ft  L.  P.  R.  Co.  51  La.  Ann.  1615,  26 
So.  278;  Galesburg  ft  G.  E.  R.  Co.  v.  Mil- 
f^,  181  ni.  247,  54  N.  E.  939;  Calumet 
River  R.  Co.  v.  Moore,  124  111.  334,  15 
N.  E.  764;  Muskeget  Island  Club  v.  Nan- 
taeket,  185  Mass.  303,  70  N.  E.  61;  Fos- 
gate  V.  Hudson,  178  Mass.  225,  59  N.  E. 
809;  Fales  v.  Easthampton,  162  Mass.  422, 
ZB  N.  E.  1129;  West  Virginia,  P.  ft  T. 
R.  Co.  V.  Gibson,  94  Ky.  236,  21  S.  W. 
1055;  Louisville,  N.  O.  ft  T.  R,  Co.  ▼.  Ryan, 
^  Miss.  399,  8  So.  173;  Mississippi  River 
Bridge  Co.  v.  Ring,  58  Mo.  496;  Low  ▼. 
Concord  R.  Co.  63  N.  H.  557,  3  Atl.  739; 
Muller  V.  Southern  Pacific  Branch  R.  Co. 
83  Cal.  240,  23  Pac.  266;  St.  Louis  Ter- 
minal R.  Co.  V.  Heiger,  139  Mo.  315,  40 
^.  W.  947;  Hooker  r.  Montpelier  ft  W. 
River  R.  Co.  62  Vt.  49, 19  Atl.  775;  Chicago, 
^.  ft  N.  R.  Co.  ▼.  Davidson,  49  Kan.  589,  31 
Pac  131;  King  v.  Turnbull  Real  Estate 
<jO,  8  Can.  Bxch.  163;  Wilson  v.  Equitable 
-Gas  Co.  162  Pa.  569,  25  AtL  635;  Montana 
R.  Co.  V.  Warren,  6  Mont..  275,  12  Pae. 
441;  Smith  r.  Com.  Ann.  Caa.  1912C,  1289, 
aiote. 
-•0  li.  ed. 


Chandler-Dunbar  Water  Power  Co.  v» 
United  States,  229  U.  S.  53,  57  L.  ed.  1063, 
33  Sup.  Ct.  Rep.  667;  Boston  Chamber  of 
Commerce  v.  Boston,  217  U.  S.  189,  54  L. 
ed.  725,  30  Sup.  Ct.  Rep.  469;  McGovem 
V.  New  York,  229  U.  S.  363,  57  L.  ed. 
1228,  46  L.RJ^.(N.S.)  391,  83  Sup.  Ct.  Rep. 
876;  and  the  Minnesota  Rate  Cases  (Simp- 
son V.  Shepard)  230  U.  S.  352,  57  L.  ed. 
1511,  48  L.R.A.(N.S.)  1151,  33  Sup.  Ct 
Rep.  729, — do  not  apply  to  the  facta  in 
the  case  at  bar. 

The  fact  that  the  defendant  in  error  did 
not,  or  could  not>  alone  use  his  property 
as  a  reservoir  site,  does  not  deprive  the 
property  of  its  value  sis  a  reservoir  site,  or 
a  portion  of  a  reservoir  site. 

Mississippi  ft  R.  River  Boom  Co.  v.  Pat- 
terson, 98  U.  S.  403,  408,  26  L.  ed.  206, 
208;  Great  Falls  Mfg.  Co.  r.  United  States, 
16  a.  CI.  199,  affirmed  in  112  U.  8.  .645, 
28  L.  ed.  846,  6  Sup.  Ct  Rep.  306;  Chicago 
ft  N.  W.  R.  Co.  V.  Chicago  ft  E.  R.  Co.  112 
ni.  609;  Hooker  v.  Montpelier  ft  W.  River 
R.  Co.  62  Vt  49,  19  Atl.  775;  Little  Rock 
Junction  R.  Co.  v.  Woodruff,  49  Ark.  381, 
4  Am.  St.  Rep.  51,  5  S.  W.  792 ;  Mississippi 
River  Bridge  Co.  v.  Ring,  68  Mo.  491. 

The  fact  that  the  defendant  in  error  was 
the  owner  of  only  a  part  of  the  reservoir' 
site  does  not  prevent  that  element  of  value 
from  being  considered.  It  only  goes  to  the 
weight  that  should  be  given  to  the  evidence, 
and  the  amount  that  should  be  allowed  for 
this  element  of  value. 

San  Diego  Land  ft  Town  Co.  r.  Neale,  78 
Cal.  63,  3  L.RJ^..  83,  20  Pac.  372;  Tyne- 
mouth  V.  Northumberland,  89  L.  T.  N.  S. 
557,  67  J.  P.  425,  19  Times  L.  R.  630. 

The  valuation  which  the  commissioners 
of  appraisal  placed  upon  this  property  was 
not  its  valuation  to  the  city  of  New  York, 
but  was  merely  what  they  considered  to 
be  the  fair  and  reasonable  market  value  of 
the  property,  taking  into  consideration  as 
an  element  in  its  value  the  fact  that  it  is 
adaptable  and  available  to  a  certain  special 
and  profitable  use  which  the  city  is  now 
making  of  it. 

16  Cyc  1135,  1136. 

The  Federal  courts  will  not  accept  the 
decisions  of  a  state  court  as  binding  upon 
them  on  questions  of  general  law. 

Myrick  v.  Michigan  C.  R.  Co.  107  U. 
8.  102,  109,  27  L.  ed.  325,  327,  1  Sup.  Ct 
Rep.  426;  Smith  v.  Alabama,  124  U.  S. 
466,  478,  31  L.  ed.  608,  512,  1  Inters.  Com. 
Bep.  804,  8  Sup.  Ct.  Rep.  564;  Bucher  ▼. 
Cheshire  R.  Co.  125  U.  8.  655,  31  L.  ed. 
795,  8  Sup.  Ct.  Rep.  974;  Liverpool  ft  G. 
W.  Steam  Co.  r.  Phenix  Ins.  Co.  (The 
Montana)  129  U.  S.  397,  443,  32  L.  ed.  788, 
792,  9  Sup.  Ct.  Rep  469;  Independent  School 
Dist  ▼.  Rew,  55  L.R.A.  364,  49  C.  C.  A.. 
10  14ft 


60-62 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Ooi.  Tbm, 


108,  111  Fed.  1;  Beard  v.  Independent 
Dirt.  81  C.  C.  A.  662,  60  U.  S.  App.  372, 
88  Fed.  876;  Columbia  Ave.  Sav.  Fund,  S. 
D.  Title  ft  T.  Co.  Y.  DawBon,  130  Fed.  162 ; 
Union  Bank  t.  Oxford,  00  Fed.  7;  Bruns- 
wick Terminal  Co.  v.  National  Bank,  88 
Fed.  607;  Hunt  v.  Hurd,  30  C.  C.  A.  226, 
98  Fed.  683;  Western  U.  Teleg.  Co.  y. 
Sklar,  61  C.  C.  A.  281,  126  Fed.  205;  Man- 
■hip  T.  New  South  Bldg.  &  L.  Asso.  110 
Fed.  846;  Re  Hull,  116  Fed.  868;  Jonet 
V.  Southern  P.  Co.  76  C.  C.  A.  602,  144 
Fed.  073,  7  Ann.  Cas.  266. 

Mr.  Justice  Holm|M  delivered  the  opin- 
ion of  the  court: 

This  is  a  proceeding  for  the  taking  of  land 
for  the  Ashokan  reservoir,  similar  to  the 
one  before  us  in  McGovem  v.  Nev;  York,  220 
U.  S.  363,  67  L.  ed.  1228,  46  L.R.A.(N.S.) 
301,  33  Sup.  Ot.  Rep.  876.  After  commis- 
sioners were  appointed  to  ascertain  the  com- 
pensation to  be  paid,  the  case  was  removed 
to  the  circuit  court,  diverse  citizenship  being 
alleged.  There  was  a  motion  to  remand 
which  was  overruled,  and  subsequently  the 
commissioners  reported  that  *'the  sum  of 
$7,624.46  for  land  and  buildings  and  the 
further  sum  of  $4,324.46  for  reservoir  avail- 
ability and  adaptability,  being  a  grand  total 
of  the  siun  of  $11,048.00,  is  the  sum  ascer- 
tained and  determined  by  us  .  .  .  to  be 
paid  to  the  owners  of  and  all  persons  in- 
terested in  said  land  for  the  taking  of  the 
fee  thereof,  designated  ...  as  Parcel 
733."  They  also  recommended  the  allow- 
ance of  5  per  cent  on  the  above  award  for 
«  legal  fees  and  expenses,  and  of  $1,372.31  to 
named  witni^sses  in  specified  sums.  The 
report  was  confirmed  by  the  circuit  judge 
(190  Fed.  413),  and  afterwards  by  the  cir- 
cuit court  of  appeals  (124  C.  C.  A.  251, 
2U6  Fed.  360). 

Upon  an  inspection  of  the  record  it  ap- 
pears to  us,  as  the  language  of  the  com- 
missioners on  its  face  suggests,  that  their 
report  does  not  mean  that  the  claimant's 
land  had  a  [61]  market  value  of  $11,048.00, 
— tliat  it  would  have  brought  that  sum  at  a 
fair  sale, — but  that  they  considered  the 
value  of  the  reservoir  as  a  whole  and  al- 
lowed what  they  thought  a  fair  proportion 
of  the  increase,  over  and  above  the  market 
value  of  the  lot,  to  the  owner  of  the  land, 
subject  to  the  opinion  of  the  court  upon 
the  point  of  law  thus  raised.  Upon  that 
point  we  are  of  opinion  that  they  were 
wrong. 

The  decisions  appear  to  us  to  have  made 
the  principles  plain.  No  doubt  when  this 
class  of  (juestions  first  arose  it  was  said  in 
a  general  way  that  adaptability  to  the  pur- 
poses for  which  the  land  could  be  used  most 
profitably  waa  to  be  considered ;  and  that 


is  true.  But  it  is  to  be  considered  only 
so  far  as  the  public  would  have  considered 
it  if  the  land  had  been  olBTered  for  sale  in 
the  absence  of  the  city's  exercise  of  the 
power  of  eminent  domain.  The  fact  that 
the  most  profitable  use  could  be  made 
only  in  connection  with  other  land  is  not 
conclusive  against  its  being  taken  into  ac- 
count, if  the  union  of  properties  necessary 
is  so  practicable  that  the  possibility  would 
affect  the  market  price.  But  what  the  own- 
er is  entitled  to  is  the  value  of  the  property 
I  taken,  and  that  means  what  it  fairly  may 
be  believed  that  a  purchaser  in  fair  market 
conditions  would  have  given  for  it  in  fact, 
— not  what  a  tribunal  at  a  later  date  may 
think  a  purchaser  would  have  been  wise 
to  give,  nor  a  proportion  of  the  advance  due 
to  its  union  with  other  lots.  The  city  is 
not  to  be  made  to  pay  for  any  part  of  what 
it  has  added  to  the  land  by  thus  uniting 
it  with  other  lots,  if  that  union  would  not 
have  been  practicable  or  have  been  attempt- 
ed except  by  the  intervention  of  eminent 
domain.  Any  rise  in  value  before  the  tak- 
ing, not  caused  by  the  expectation  of  that 
event,  is  to  be  allowed,  but  we  repeat,  it 
must  be  a  rise  in  what  a  purchaser  might 
be  expected   to  give. 

It  is  said  that  in  this  case  there  was 
testimony  that  the  lot  was  worth  more  than 
the  total  allowed.  But  the  only  [621  ex- 
planation of  the  separation  of  items  by  the 
commissioners  is  that  they  were  not  pre- 
pared to  say  that  the  market  value  of  the 
lot  was  $11,048.00,  seein^i:  that  the  claimant 
bought  it  a  few  days  bdfore  for  $4,600,  but 
that  they  thought  the  additional  value 
gained  by  the  city's  act  should  be  taken  into 
account  and  shared  between  the  city  and  the 
owner  of  the  land, — a  proposition  to  which 
we  cannot  assent.  Minnesota  Rate  Casee 
(Simpson  v.  Shepard)  230  U.  S.  362,  451, 
67  L.  ed.  1611,  1662,  48  L.R.A.(N.S.)  1151, 
33  Sup.  Ct.  Rep.  720;  McGovem  v.  New 
York,  220  U.  S.  363,  372,  67  L.  ed.  1228, 
1232.  46  L.R.A.(N.S.)  301,  33  Sup.  Ct.  Rep. 
876. 

The  motion  to  remand  was  made  on  the 
ground  that  Sage  bought  after  the  condem- 
nation proceedings  were  commenced,  and 
therefore  was  not  entitled  to  remove  the 
suit  to  the  circuit  court.  The  maps  show- 
ing the  parcels  of  real  estate  to  be  taken 
had  been  filed  and  notices  had  been  posted 
on  the  property  before  the  conveyance  to 
Sage,  but  the  petition  for  the  appointment 
of  commissioners  was  not  filed  until  after 
it  had  been  made.  We  see  no  reason  to 
differ  from  the  opinion  of  the  judges  below 
that  the  proceeding  was  not  commenced  at 
the  date  when  Sage  took. 

Decree  reversed. 

sst  u.  s. 


LA  BOQUS  7.  UNITED  STATBB. 


BENKY  I^  BOQUE,  Appt, 

T. 

UmTED  STATES. 

(8m  B.  C.  Bcportor'i  ad.  62-68.)' 

iBdlABB   ••   allotment   —   dratli    befora 

•election. 

1.  Kelectiotia  on  the  psrt  of  living  In- 
diana 011I7,  kcting  for  tlicmKlves  or  through 
dctignatM  rqireHnt*tiv«8,  were  contem- 
plated bj  tbm  general  Indian  aJlotmeut  act 
<rf  Fcbnuuj  8,  1B8T  (»  Stat,  at  L.  38S, 
Chap,  lie,  Comp.  StaL  1S13,  J  4100),  which. 
after  autiioriting  a  survey  of  the  reserva- 
tioD  to  be  allotted,  provided  for  an  allot- 
B»«nt  in  Mvt^raltj  of  a  designated  area  "to 
■nj  Indian  located  tliereon,"  and  then  di- 
rected that  all  allotmeata  "be  selected  by 
Um  Indiana,  heada  of  familiea  selecting  for 
Uieir  minor  children,"  and  the  agents  telect- 
ing  for  orphan  children,  and  that  "if  any- 
ODfl  entitled  to  an  allotment  shall  fail  to 
,   leleetion    within   four   yean"   tlie 


igent. 

IPor  other  catei.  see  Indians.  VIII.,  In  DlReit 
8up     CL    laOK.l 

Indiana  —  allotment  —  death  be(or« 

acle<rtlon. 

2.  Tlic  death  of  a  Chippewa  Indian  be- 
fore selecting  or  receiving  bis  allotment  un- 
der the  Nelnon  set  of  January  14,  18S9  (25 
Stat,  at  L.  042,  chap.  24),  must  be  deemed 
lo  b>rminate  all  right  to  an  allotment  on 
his  liehslf,  in  view  of  the  proviaJonB  of  that 
act  that  allotment!  thereunder  are  to  be 
made  in  conformity  with  the  general  allot- 
ment act  of  February  8,  1887  124  Stat,  at 
L.  388,  (diap.  119,  Comp.  Stat.  1913,  1  4195), 
which  contemplates  selections  on  the  part 
of  living  Indians  only,  acting  for  thenigelves 
or  through  designated  represent  if  tives, 
there  being  nothing  demanding  a  dilterent 
conclusion  in  the  provisions  01  the  Nplaon 
ut  for  a  census  of  the  Indians  (which  in- 
cludes the  name  of  the  Indian  in  question), 
"tor  the  purpose,"  among  others,  "of  mak- 
ini;  the  allotments"  contemplated  by  that 
act.  nor  In  the  report  of  the  negotistion* 
■itk  the  Indiana  resulting  in  the  contem- 

rlsted  cession. 
Por  otber  niivs.  see  ladlsns.  VIII..  In  Olcdt 
Sup.  Ct   lflOe.1 
Limitation  of  actions  —  anlt  to  cancel 
patent  —  Indian  lands. 

3.  The  six  years'  limitation  prescribed 
I7  thb  act  of  March  3,  J8III  (28  Stat,  at  L. 
low,  chap.  5H1,  Comp.  Stat.  1013,  S  6114). 
I  8,  tor  suits  by  the  United  States  to  vacate 
and  annul  patents  does  not  govern  a  suit 
to  cancel  a  so-called  trust  patent  for  an 
tllotment  in  an  Indian  Reservation  on  the 
ground  that  the  allotment  was  made  inad- 
Teitectly  and  in  contravention  of  the  Nelnon 
an  w  jftruury  i4.  iSal)  (2fi  Stat,  at  L. 
K4!,  chap.  1!4),  since  such  section,  being  a 
t^n  of  the  public  land  laws,  refers  only  to 
patents  issued  for  public  lands  of  the  Unit- 
ed (States,  and  has  no  application  to  re- 
•CTvwl  Indian  landi 


irir  , 


}   I.lm 


■  tlnn 


I  Federal  eonrta  ^  Jnriadlctlon  ^  salt  tft 
canoel  trnat  patent. 
4.  Jurisdiction  of  a  Federal  aonrt  to 
antertaln  a  suit  by  the  United  Stataa  to 
cancel  a  so-called  truat  patent  for  an  allot- 
ment In  an  Indian  Beservation,  on  tiu 
ground  that  the  allotment  was  made  ln< 
advertently  and  in  contravention  of  the  Nri- 
•on  act  of  January  14,  188S  (25  SUt.  at  L. 
ti42,  chap.  24),  la  not  affected  by  the  pro- 
visions of  the  act  of  April  23,  1004  (SS 
Stat  at  L.  297,  chap.  1489,  Comp.  SUt. 
lOlS,  I  4212),  limiting  and  deHning  Ux 
authority  of  the  Secretary  of  the  Interior 
to  correct  mistakes  in,  and  to  cancel,  truat 
catenta  for  Indian  allotmenta. 
IFor  otber  casei,  wg  Courts,  V.  c,  4,  In  Digest 
8ap.  Ct  IMS.] 

[No.  240.] 


APPEAL  from  tba  Unlt«d  States  Clrenlt 
Court  of  Appeals  for  the  Eighth  Cirenlt 
to  review  a  dcwee  which,  reversing  a  decTM 
of  the  Circuit  Court  for  the  District  of  Min- 
nesota, remanded  a  suit  by  the  United  States 
to  cancel  a  trust  paUnt  for  an  Indian  allot- 
ment, with  instructions  to  enter  a  decree 
in  favor  of  the  government.    Affirmed. 

See  same  case  below,  117  C.  0.  A.  340, 
198  Fed.  64S. 

The  facta  are  stated  in  the  opinion. 

Hr.  J.  T.  Tan  Metre  argued  the  cause 
and  filed  a  brief  for  appellant: 

The  title  the  Indians  had  to  the  White 
Earth  Reservation  was  that  of  a  fee  simple, 
it  having  been  conveyed  to  them  by  the 
United  States  as  part  consideration  for 
lands  ceded  by  them  to  the  government 

New  York  Indians  v.  United  States,  170 
U.  S.  1,  42  L.  ed.  921,  18  Sup.  Ct  Hep. 
G3Ii  Holden  *.  Joy,  17  Wall.  211,  21  L. 
ed.  623;  United  States  v.  Brooks,  ID  How. 
442,  13  U  ed.  480i  Marsh  v.  Brooks.  8  How. 
223,  12  L.  ed.  1066-,  United  States  v.  Choc- 
taw Nation,  ITD  U.  B.  494,  4G  L.  ed.  291. 
21  Sup.  Ct  Rep.  14S;  White  t.  Wright, 
83  Minn.  222,  86  N.  W.  91;  Seneca  Nation 
of  Indians  v.  Hugarboom,  132  N.  Y.  493, 
30  N.  E.  983,  Prentice  v.  Stearns,  20  Fed 
819;  United  States  *.  Reese,  5  Dill.  406, 
Fed.  Cas.  No.  18,137;  Mitchel  v.  United 
States.  16  Pet.  G2,  10  L.  ed.  668. 

Where  a  treaty  contains  words  of  con- 
veyance, it  operates  at  a  grant  tn  prtEnonti, 
and  the  title  vests  by  operation  of  tiie 
treaty. 

Jones  T.  Mcehan,  175  U.  S.  1,  44  L.  ed. 
49,  20  Sup.  Ct.  Rep.  1;  United  States  v. 
New  York  Indians,  173  U.  S.  464,  43  L. 
ed.  769,  19  Sup.  Ct.  Rep.  487,  170  U.  S.  1, 
42  L.  ed.  IK7, 18  Sup.  Ct.  Rep.  G31;  Webster 


6UPREM1S  COURT  OF  THE  UNITED  STATES. 


Ooi.  Tebm, 


▼.  Reid,  MorriB  (Iowa)  467;  United  States 
y.  Brooks,  10  How.  442,  13  U  ed.  489. 

The  land  ceded  to  the  United  States  un- 
der the  treaty  of  April  18,  1867,  belonged 
to  these  Indians,  and  was  a  valuable  con- 
sideration for  the  sale  to  them  of  the  White 
Earth  Ecservation. 

New  York  Indians  ▼.  United  States,  170 
U.  S.  1,  42  U  ed.  027,  18  Sup.  Ct.  Rep.  531 ; 
Holden  v.  Joy,  17  Wall.  211,  21  L.  ed.  623; 
Mitchel  v.  United  States,  0  Pet.  748,  9  L. 
ed.  296;  Crews  v.  Burcham,  1  Black,  352, 
17  L.  ed.  91. 

It  was  proper  for,  and  within  the  power 
of,  the  United  States  to  convey  the  terri- 
tory comprising  the  White  Earth  Reserva- 
tion to  the  Indians,  although  it  was  then  a 
part  of  the  public  domain. 

Holden  v.  Joy,  17  Wall.  211,  21  L.  ed. 
523;  Johnson  v.  M'Intosh,  8  Wheat.  598,  5 
U  ed.  694. 

While  a  patent  to  the  White  Earth  Res- 
ervation was  not  given  or  promised  by  the 
treaty  of  April  18,  1867,  yet  a  patent  is 
not  necessary  to  convey  a  complete  title. 

Francis  v.  Francis,  203  U.  S.  233,  61 
L.  ed.  165,  27  Sup.  Ct.  Rep,  129;  Jones  v. 
Meehan,  175  U.  S.  1,  44  L.  ed.  49,  20  Sup. 
Ct.  Rep.  1;  United  States  ▼.  Brooks,  10 
How.  442,  13  L.  ed.  489. 

Restrictions  upon  alienation  do  not  de- 
base the  title  below  a  fee  simple. 

Libby  v.  Clark,  118  U.  S.  250,  30  L.  ed. 
133,  6  Sup.  Ct.  Rep.  1045;  United  States  v. 
Paine  Lumber  Co.  206  U.  S.  467,  61  L.  ed. 
1139,  27  Sup.  Ct.  Rep.  697. 

The  act  of  January  14,  1889,  was  in  all 
essentials  a  treaty,  and  was  in  its  nature 
contractual. 

Worcester  ▼.  Georgia,  6  Pet.  615,  8  L. 
ed.  483 ;  Choate  v.  Trapp,  224  U.  S.  665,  56 
L.  ed.  941,  32  Sup.  Ct.  Rep.  565. 

There  is  no  inconsistency  in  permitting  an 
allotment  after  death. 

Mullen  V.  United  States,  224  U.  S.  448, 
56  L.  ed.  834,  32  Sup.  Ct.  Rep.  494;  Goat 
V.  United  States,  224  U.  S.  458,  56  L.  ed. 
841,  32  Sup.  Ct.  Rep.  541;  United  States  v. 
Dowden,  194  Fed.  475. 

Failure  or  refusal  to  make  the  allotment 
could  not  militate  against  the  rights  of  the 
person   entitled  thereto. 

Lytle  V.  Arkansas,  9  How.  314,  13  L.  ed. 
163;  Yosemite  Valley  Case  (Hutchings  v. 
Low)  15  Wall.  91,  21  L.  ed.  86;  Smith  v. 
Bonifer,  132  Fed.  889;  United  States  v. 
Dowden,  194  Fed.  475. 

This  act  must  be  construed  in  the  light 
in  which  the  Indians  were  made  to  under- 
stand it. 

Worcester  v.  Georgia,  6  Pet.  515,  8  L. 
ed.  483;  Jones  v.  Meehan,  175  U.  S.  1,  44 
L.  ed.  49,  20  Sup.  Ct.  Rep.  1;  Kansas  In- 
dians (Blue  Jacket  v.  Johnson  County)  5 
148 


I  Wall.  737,  18  L.  ed.  667 ;  United  States  v. 
I  ChocUw  Nation,  119  U.  S.  27,  30  L.  ed.  314, 
7  Sup.  Ct.  Rep.  75;  United  SUtes  v.  Kaga- 
nm,  118  U.  S.  375,  30  L.  ed.  228,  6  Sup. 
Ct.  Rep.  1109;  United  States  v.  Winans, 
198  U.  S.  371,  49  L.  ed.  1089,  25  Sup.  Ct. 
Rep.  662;  United  States  v.  Choctaw  Nation, 
179  U.  S.  494,  45  L.  ed.  291,  21  Sup.  Ct. 
Rep.  149;  Choate  v.  Tri^p,  224  U.  S.  665, 
56  L.  ed.  941,  32  Sup.  Ct.  Rep.  565. 

The  report  of  the  negotiations  are  con- 
tained in  House  Ex.  Doc.  247,  51st  Con- 
gress, 1st  session.  The  court  may  take 
judicial  notice  of  such  documents. 

New  York  Indians  v.  United  States,  170 
U.  S.  1,  32,  42  L.  ed.  927,  938,  18  Sup.  Ct. 
Rep.  531. 

The  law  of  descent  in  the  state  where  the 
land  is  situated  shall  apply  after  issuance 
of  the  patent.  Not  the  final  patent,  but  the 
first  or  trust  patent. 

Goat  V.  United  States,  224  U.  S.  458,  56 
L.  ed.  841,  32  Sup.  Ct  Rep.  541;  Re  Heff, 
197  U.  S.  488,  49  L.  ed.  848,  25  Sup.  Ct. 
Rep.  506;  United  States  v.  Park  Land  Co. 
188  Fed.  383;  Beam  ▼.  United  SUtes,  89 
C.  C.  A.  240,  162  Fed.  260;  Worcester  v. 
Georgia,  6  Pet.  515,  582,  8  L.  ed.  483,  508; 
Re  White  Earth  Indian  Reservation,  36 
Land  Dec  210. 

Subsequent  sets  of  Congress  giving  the 
Secretary  of  the  Interior  jurisdiction  to 
determine  heirship  of  Indians  do  not  apply 
to  the  descent  of  allotments  on  the  White 
Earth  Reservation. 

Vachon  v.  Nichols-Chisholm  Lumber  Co. 
126  Minn.  303,  144  N.  W.  223,  148  N.  W. 
288;  Re  White  Earth  Indian  Reservation, 
36  Land  Dec.  210 ;  Kendall  v.  United  SUtes, 
12  Pet.  524,  9  L.  ed.  1181;  PosUl  Teleg. 
Cable  Co.  v.  Southern  R.  Co.  89  Fed.  190; 
26  Am.  k  Eng.  Enc.  Law,  714;  Endlich, 
InterpreUtion  of  SUtutes,  695;  1  Suther- 
land, SUt.  Contr.  2d  ed.  493. 

The  instrimient  here  sought  to  be  can- 
celed is  a  "patent"  within  the  meaning  of 
the  sUtute  of  limiUtions. 

La  Clair  v.  United  SUtes,  184  Fed.  128; 
Libby  v.  Clark,  118  U.  S.  250,  30  L.  ed. 
133,  6  Sup.  Ct.  Rep.  1045;  Re  Heff,  197 
U.  S.  488,  49  L.  ed.  848,  25  Sup.  Ct.  Rep. 
506;  Wiggan  v.  ConoUy,  163  U.  S.  56,  41 
L.  ed.  69,  16  Sup.  Ct  Rep.  914;  SUrr  v. 
Campbell,  208  U.  S.  527,  62  L.  ed.  602,  28 
Sup.  Ct.  Rep.  365;  Starr  v.  Long  Jim,  227 
U.  S.  613,  57  L.  ed.  670,  33  Sup.  Ct.  Rep. 
358;  Mullen  v.  United  SUtes,  224  U.  S. 
448,  56  L.  ed.  834,  32  Sup.  CU  Rep.  494; 
Goat  V.  United  SUtes,  224  U.  S.  458,  56 
L.  ed.  841,  32  Sup.  Ct.  Rep.  541;  Choate 
T.  Trapp,  224  U.  S.  665,  56  L.  ed.  941,  32 
Sup.  Ct.  Rep.  565;  Re  White  Earth  Indian 
Reservation,    36    Land.    Dec.    210. 

AfUr  the  death  of  Vinc^it  La  Roque,  and 

2S9  U.  S. 


1916. 


jjl  roque  v.  united  states. 


fciter  the  iMuance  of  this  patent  in  1902, 
the  appellant,  admittedly  an  adult  mixed- 
Uood  Indian,  held  this  land  in  fee  simple 
upon  the  approval  of  the  Clapp  amendment. 

United  States  t.  Park  Land  Co.  188  Fed. 
S88;  Beam  y.  United  States,  89  C.  0.  A. 
240,  162  Fed.  260;  Stephenson  t.  Lohn,  116 
Minn.  166,  131  N.  W.  1018;  Vadion  t. 
Nichols-Chisholm  Lumber  Co.  126  Minn.  303, 
144  N.  W.  223,  148  N.  W.  288. 

Statutes  of  limitation  are  applicable  to 
individual  Indians  after  allotment. 

Schrimpscher  v.  Stockton,  183  U.  S.  290, 
46  L.  ed.  203,  22  Sup.  Ct.  Rep.  107 

This  court  has  repeatedly  upheld  the 
statutes  of  limitation. 

United  States  t.  Des  Moines  Nav.  ft 
R.   Go.    142    U.    S.    610,    36    L.    ed.    1099, 

12  Sup.  Ct.  Rep.  308;  Curtner  t.  Unit- 
ed States,   149  U.  S.  671,  37  L.  ed.  893, 

13  Sup.  Ct.  Rep.  985,  1041;  Wood  ▼.  Car- 
penter, 101  U.  S.  135,  25  L.  ed.  807; 
United  States  y.  Hodge,  13  How.  478,  14 
L.  ed.  231;  Clementson  y.  Williams,  8 
Cranch,  72,  3  L.  ed.  491;  M'Cluny  v.  Sil- 
liman,  3  Pet.  270,  7  L.  ed.  676;  Richards 
V.  Maryland  Ins.  Co.  8  Cranch,  84,  3  L.  ed. 
496;  Bank  of  United  States  v.  Daniel,  12 
Pet.  32,  9  L.  ed.  989 ;  Lewis  y.  Marshall,  6 
Pet.  470,  8  L.  ed.  196. 

Independent  of  U.  S.  Rey.  SUt.  §  2448, 
Comp.  Stat.  1913,  f  6098,  the  courts  have 
always  held  that  the  title  to  the  land  des- 
ignated in  a  patent  issued  in  the  name  of 
an  Indian  reservee  or  allottee  after  his 
death  insured  to  his  heirs,  devisees,  or  as- 
signs. 

Doe  ex  dem.  Mann  v.  Wilson,  23  How.  457, 
16  L.  ed.  684;  Elwood  y.  Flannigan,  104 
U.  8.  562,  26  L.  ed.  842;  Vachon  y.  Nichols- 
Chisholm  Lumber  Co.  126  Minn.  803,  144 
N.  W.  223,  148  N.  W.  288. 

Tet  this  court  has  held  directly  that  this 
law,  f  2448,  supra,  applies  to  individual 
Indian  lands. 

Crews  y.  Burcham,  1  Black,  362,  17  L. 
ed.  91. 

The  cause  for  cancelation  In  the  case  at 
bar  is  none  of  those  specified  in  the  act  of 
April  23,  1904,  and  no  fraud  is  charged  in 
obtaining  its  issuance. 

La  CUir  y.  United  States,  184  Fed.  137. 

Assistant  Attorney  General  Knaebel  sub- 
mitted the  cause  for  the  United  States. 
Mr.  a  W.  Williams  was  on  the  brief: 

Much  is  said  in  the  appellant's  brief  con- 
cerning the  elBTect  of  treaties,  particularly 
the  treaty  of  April  18,  1867,  which  estab- 
lished the  White  Earth  Reservation.  Coun- 
sel assert  that  by  this  the  fee  was  granted 
4m  pnmefiit.  Even  if  so,  it  was  manifestly 
a  grant  to  the  tribe  as  a  quasi  eorporation. 
The  individual  gained  no  iitla  or  right  to 
title.  He  was  not  a  tenant  In  coamon.  Ba 
••  Ii.  ed. 


had  nothing  to  transmit  by  inheritance.  He 
was  simply  one  of  a  membership  constantly 
changing  and  shifting  through  birth  and 
death,  resignation  and  adoption,  each  of 
whose  constituents,  while  he  lived  and  re- 
mained a  member,  had  doubtless  a  usu- 
fructuary right,  a  voice  in  the  administra- 
tion of  the  tribal  estate,  and  an  expectancy 
that,  wh^i  the  estate  came  to  be  distributed 
(If  it  ever  did),  he  would  receive  his  just 
share  with  the  other  members  existing  at 
that  time. 

8izemore  v.  Brady,  235  U.  S.  441,  440,  60 
L.  ed.  308,  311,  35  8up.  Ct.  Rep.  135; 
McKee  v.  Henry,  119  a  C.  A.  412,  201 
Fed.  76;  Ligon  v.  Johnston,  90  C.  C.  A. 
486,  164  Fed.  670;  Woodbury  v.  United 
States,  96  C.  C.  A.  498,  170  Fed.  302. 

The  Nelson  act  intends  that  allotments 
shall  be  made  to  living  members  only. 

Re  Dole,  30  Land  Dec.  632;  Re  Shaw,  40 
Land  Dec  9;  Fairbanks  v.  United  SUtes, 
223  U.  S.  216,  66  L.  ed.  409.  32  Sup.  Ct. 
Rep.  292;  Woodbury  y.  United  SUtes»  96 
a  C.  A.  498,  170  Fed.  302. 

In  the  case  of  the  Five  Civilized  Tribes 
the  dominant  objects  were  to  protect  the 
rights  of  all  the  members  against  the  selfish 
aggressions  of  a  few,  partition  the  tribal 
lands,  break  up  the  tribal  govemments»  and 
prepare  the  way  for  a  new  state. 

Woodward  v.  De  Graffenried.  238  U.  8. 
284,  69  L.  ed.  1310,  36  Sup.  Ct  Rep.  764. 

The  acts  and  a^n^eements  relating  to  the 
reservations  of  those  tribes  accordingly  eon- 
fer  the  right  to  allotments  on  the  persons 
living  at  stated  times,  and  provide  in  so 
many  words  that,  in  case  of  death  before 
allotment,  the  allotment  shall  go  to  the 
heirs. 

Skelton  y.  Dill,  236  U.  8.  206.  208,  69 
L.  ed.  198,  199,  35  Sup.  Ct.  Rep.  60. 

It  is  elementary  that,  like  a  deed  to  a 
fictitious  person  (Moffat  v.  United  States, 
112  U.  &  24,  31,  28  L.  ed.  623,  626,  6  8up. 
Ci.  Bep.  10),  a  deed  to  a  grantee  not  im 
esse  at  the  time,  even  though  the  habendum 
be  to  him  and  his  "heirs,"  is  an  absolute 
nullity. 

1  Devlin,  Deeds,  3d  ed.  f  187;  8  Washb. 
Real  Prop.  6th  ed.  2121 ;  2  Minor,  Real  Prop. 
§  1088;  Hunter  v.  Watson,  12  Cal.  363,  73 
Am.  Dec.  643;  Baker  v.  Lane,  82  Kan.  716, 
28  LJLA.(N.8.)   406,  109  Pac.  182. 

The  "patents"  intended  by  the  limitation 
act  of  March  3,  1891,  are  patents  convey- 
ing the  legal  title  such  as  are  issued  under 
the  g^eral  land  laws;  the  term  has  no 
proper  application  to  such  an  instnmieDt  as 
the  one  here  in  question. 

Northern  P.  R.  Co.  y.  United  States.  227 
U.  8.  365,  57  L.  ed.  644,  33  Sup.  Ct.  Rep. 
368;  United  SUtes  v.  Stone,  2  WalL  626, 
686,  17  L.  ed.  765,  767;  Maxwell  Land- 
QranI  Case,  121  U.  B.  826.  380^  SO  L.  «d.' 


«  Mm 


0;M»ii 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Got.  Temm^ 


049,  958,  7  Sup.  Ct.  Rep.  1016;  United 
States  V.  Rickert,  188  U.  8.  432,  436,  47 
L.  ed.  632,  635,  23  Sup.  Ct.  Rep.  478;  Re 
Bergen,  30  Land  Dec.  258. 

The  prorUion  in  the  act  of  April  23, 1904. 
declaring  that  conditional  patents  issued 
upon  Indian  allotments  may  not  be  can> 
celed  without  authority  of  Congress  except 
in  certain  cases  therein  specially  provided 
for  is  but  a  limitation  upon  the  power  of 
the  Secretary,  and  was  not  intended  to  de- 
prive the  courts  of  authority  inherently 
vested  in  them. 

Re  Bergen,  30  Land  Dec.  258;  United 
SUtes  V.   Chehalis  County,  217   Fed.  284. 

Mr.  Justice  Van  Devanter  delivered  the 
opinion  of  the  court: 

This  is  a  suit  to  cancel  a  so-called  trust 
patent  for  an  allotment  in  the  White  Earth 
Indian  Reservation  in  Minnesota  on  the 
ground  that  the  allotment  was  made  inad- 
vertently and  in  contravention  of  the  act 
of  January  14,  1889,  chap.  24,  25  Stat,  at 
L.  642,  known  as  the  Nelson  act.  In  the 
circuit  court  there  was  a  decree  dismissing 
the  bill  [64]  upon  the  merits,  and  this  was 
reversed  by  the  circuit  court  of  appeals  with 
instructions  to  enter  a  decree  according  to 
the  prayer  of  the  bill,  subject  to  a  qualiftca- 
tion  not  here  material.  117  C.  C.  A.  349, 
198  Fed.  645. 

The  facts  are  not  in  dispute  and  are 
these:  Vincent  La  Roque,  in  whose  name  the 
trust  patent  issued,  was  a  Chippewa  Indian 
bom  in  1883  of  parents  residing  on  the 
White  Earth  Reservation,  and  was  among 
those  whofte  names  were  included  in  the 
census  of  Minnesota  Chippewas,  made  un- 
der the  Nelson  act.  Had  he  lived  he  would 
have  been  entitled  to  take  an  allotment  un- 
der that  act.  He  died  shortly  after  1889 
without  an  allotment  being  selected  by  or 
for  him.  Thereafter  an  application  in  his 
name  for  the  allotment  in  question  was 
presented  to  the  allotting  officers,  and  up- 
on this  application  the  allotment  waa  made 
and  the  trust  patent  was  issued,  both  in 
hit  name,  as  if  the  selection  were  made 
while  he  waa  living.  Henry  La  Roque,  the 
defendant,  is  his  father,  and  aa  sole  heir 
elaims  the  land  under  the  allotment  and 
trust  patent. 

Whether  the  Nelson  act  contemplated 
that  allotments  sh<^uld  be  made  on  behalf 
•f  Indians  otherwise  entitled  thereto,  but 
who  should  die  without  selecting  or  receiv- 
ing them,  is  the  principal  question  tor  de- 
cision. The  regulations  and  decisions  ol 
the  Secretary  of  the  Interior,  under  whose 
supervision  the  act  was  to  be  administered, 
show  that  it  was  ccnstrued  by  that  officer  as 
eonflning  the  right  of  selection  to  Itvini; 
Indians^  and  thai  he  so  instructed  the  al- 
16t 


lotting  officers.  While  not  <;^clutive,  this 
construction  given  to  the  act  in  the  course 
of  its  actual  execution  is  entitled  to  great 
respect  and  ought  not  to  be  overruled  with- 
out cogent  and  persuasive  reasons.  United 
States  V.  Moore,  95  U.  S.  760,  763,  24  L. 
ed.  588,  589;  Hastings  ft  D.  R.  Co.  v.  Whit- 
ney, 132  U.  S.  357,  366,  83  L.  ed.  363,  367, 
10  Sup.  Ct.  Rep.  112;  United  SUtes  v. 
Hammers,  221  U.  S.  220,  225,  228,  56  L. 
ed.  710,  714,  715,  31  Sup.  Ct.  Rep.  593; 
Logan  V.  Davis,  233  U.  S.  613,  627,  58  L. 
ed.  1121,  1128,  34  Sup.  Ct.  Rep.  685.  Not 
only  so,  but  it  receives  additional  force 
from  its  adoption  by  the  circuit  court  of 
appeals  for  the  eighth  circuit  [65]  in  Wood- 
bury V.  United  SUtes,  95  C.  C.  A.  498,  170 
Fed.  302,  where  it  was  said  by  District 
Judge  Amidon,  in  speaking  for  that  court: 
"Until  the  allotment  was  made,  Woodbury's 
right  was  personal, — a  mere  float, — giving 
him  no  right  to  any  specific  property.  This 
right,  from  its  nature,  would  not  descend 
to  his  heirs.  They,  as  members  of  the 
tribe,  were  severally  entitled  to  their  al- 
lotments in  their  own  right.  To  grant  them 
the  right  of  their  ancestor,  in  addition  to 
their  personal  right,  would  give  them  an 
unfair  share  of  the  tribal  lands.  The  mo- 
tive underlying  such  sUtutes  forbids  such 
a  construction." 

The  Nelson  act  embodied  a  plan  for  secur- 
ing a  cession  by  the  several  bands  of  Chip- 
pewa Indians  in  MinnesoU  of  all  reserva- 
tions occupied  by  them  except  portions  of 
the  WhiU  Earth  and  Red  Lake  reservations 
required  to  make  allotments,  for  removing 
to  the  White  Earth  Reservation  all  the 
bands  save  those  on  the  Red  Lake  Reserva- 
tion, for  making  allotmenU  in  severalty  in 
the  unceded  lands,  and  for  disposing  of 
the  ceded  lands,  placing  the  net  proceeds 
at  interest  and  distributing  them  in  several- 
ty at  the  end  of  fifty  years.  Section  1  re- 
quired that  a  census  be  made  of  each  tribe 
or  band  for  the  purpose  of  ascertaining 
whether  the  proper  number  of  Indians  as- 
sented to  the  cession  and  "of  making  the  al- 
lotmenU and  paymenU*  contemplated;  and 
f  8  directed  that,  following  the  census,  the 
cession  and  the  removal  to  the  White  Earth 
Reservation,  allotmenU  in  seveiHlty  be 
made,  as  soon  as  practicable,  U  the  Red 
I>ake  Chippewas  in  the  Red  Lake  Eeserva- 
tion,  and  to  the  others  in  the  White  Karth 
Reservation,  "in  conformity  with"  the  gen* 
eral  allotment  act  of  February  8,  1887, 
chap.  119,  24  SUt.  at  L.  888,  Comp.  SUt. 
1913  I  4195,  subject  to  a  proviso  that  any 
Indian  living  on  any  of  the  ceded  reserva- 
tions might,  in  his  discretion,  take  his  al- 
lotment therein  instead  of  moving  U  the 
WhiU  Earth  Reservation. 

The  general  allotment  act  of  1887,  in  con- 

289  V.  8. 


191fi. 


LA  ROQUB  ▼.  UNITED  STATES. 


»-W 


formity  with  whieh  the  Chippewa  allotments 
were  to  be  made,  after  [66]  authorizinff  a 
lurT^  of  the  reservation  to  be  allotted,  pro- 
Tided  for  an  allotment  in  severalty  of  a  des- 
tfnated  area  '^  any  Indian  located  there- 
oo,**  and  then  directed  that  all  allotments 
*%%  selected  by  the  Indians,  heads  of  fam- 
ilies selecting  for  their  minor  children," 
and  the  agents  selecting  for  orphan  chil- 
dren, and  tiiat  "if  anyone  entitled  to  an  al- 
lotment shall  fail  to  make  a  selection  with- 
in four  years  .  .  .  the  Secretary  of  the 
Interior  may  direct  a  selection  for  such 
Indian"  to  be  made  by  an  agent. 

We  think  the  terms  of  the  general 'act 
contemplated  only  selections  on  the  part  of 
living  Indians,  acting  for  themselves  or 
through  designated  representatives.  The 
express  provision  for  selections  in  behalf 
of  children  and  of  Indians  failing  to  select 
for  themselves,  and  the  absence  of  any  pro- 
▼iBion  in  respect  of  Indians  dying  without 
■elections,  are  persuasive  that  no  selections 
in  the  right  of  the  latter  were  to  be  made. 
In  other  words,  as  to  them  there  was  no 
displacement  of  the  usual  rule  that  the 
incidents  of  tribal  membership,  like  the 
membership  itself,  are  terminated  by  death. 
See  Gritts  v.  Fisher,  224  U.  S.  640,  642,  56 
L.  ed.  928,  931,  32  Sup.  Ct.  Rep.  580;  Oakes 
7.  United  SUtes,  07  C.  C.  A.  139,  172  Fed. 
305,  307.  It  is  upon  this  view  that  the 
execution  of  the  general  act  and  other  simi- 
lar acts  has  proceeded.  Re  Dole,  30  Land 
Dec.  632;  Re  Shaw,  40  Land  Dec.  9;  Re  In- 
structions, 42  Land  Dec.  446;  Re  Gassman, 
42  Land  Dec.  682;  Woodbury  v.  United 
States,  supra. 

As  calling  for  a  different  construction 
of  the  Nelson  act  the  defendant  relies  upon 
the  provision  for  a  census  of  the  Indians, 
and  upon  the  report  of  the  negotiations 
with  tliem  resulting  in  the  cession  contem- 
plated by  the  act,  the  contentions  advanced 
being  that  the  provision  for  a  census  makes 
it  clear  that  the  census  when  completed 
was  to  be  accepted  aa  finally  determining 
who  were  to  receive  allotments,  and  that 
the  report  of  the  negotiations  shows  that 
the  Indians  gave  their  assent  to  the  cession 
in  the  belief  that  the  right  to  select  and 
receive  an  allotment  would  not  [67]  be 
terminated  by  death,  but  woi^ld  pass  to  the 
heirs  of  the  deceased.  We  are  unable  to  as- 
sent to  either  contention.  While  the  act  di- 
rected that  a  census  be  made  '*for  the  pur- 
pose," among  others,  "of  making  the  allot- 
ments" contemplated,  we  think  this  meant 
nothing  more  than  that  the  census  should 
serve  aa  a  preliminary  guide  in  ascertaining 
to  whom  allotments  should  be  made.  There 
was  no  direction  that  it  be  treated  as  con- 
trolling, or  that  allotments  be  made  to  all 
whose  names  appeared  therein,  or  only  to 
iO  Ii.  ed. 


them.  The  work  of  allotment  could  not  be 
undertaken  at  once.  The  cession  was  not 
to  be  effective  until  approved  by  the  Presi- 
dent. Many  of  the  Indians  were  to  be 
removed  from  the  ceded  reservations  to  the 
White  Earth  Reservation,  and  much  other 
work  was  required  to  prepare  the  way.  So» 
it  must  have  been  contemplated  that  many 
changes  would  occur  in  the  membership  of 
the  several  bands  through  deaths  and  births 
before  the  sdlotments  could  be  made.  In 
Fairbanks  v.  United  SUtes,  223  U.  S.  216, 
56  L.  ed.  409,  32  Sup.  Ct.  Rep.  202,  we 
held  that  children  bom  into  the  bands  after 
the  census  were  entitled  to  allotments,  al- 
though not  listed  in  it,  and  we  perceive 
no  reason  for  giving  the  census  any  greater 
effect  in  this  case  than  was  given  to  it  in 
that.  No  doubt  it  is  to  be  accepted  as  an 
authorized  listing  of  the  members  of  the 
several  bands  who  were  living  when  it  was 
made,  but  it  has  no  other  bearing  in  cases 
like  the  present.  The  contention  that  the 
Indians  understood  that  the  right  to  select 
and  receive  an  allotment  would  not  be  ter- 
minated by  death,  but  would  pass  to  the 
heirs  of  the  deceased,  is  based  upon  excerpts 
from  addresses,  made  to  the  Indians  by  the 
commissioners  representing  the  government 
in  the  n^otiations'.  Even  when  read  apart 
from  the  context  these  excerpts  afford  little 
basis  for  the  contention,  and  when  read 
with  the  context  they  make  against  the  con- 
tention rather  than  for  it.  The  real  effect 
of  what  was  said  was  that  on  the  death  of 
any  Indian  "after  receiving  an  allotment" 
the  land  would  pass  [68]  to  his  heirs,  which 
is  quite  consistent  with  our  construction  of 
the  act. 

The  suit  was  brought  between  six  and 
seven  years  after  the  date  of  the  trust 
patent,  and  because  of  this  it  is  urged  that 
the  suit  was  barred  by  §  8  of  the  act  of 
March  3,  1891,  chap.  561,  26  Stat,  at  L. 
1090,  Comp.  Stat.  1913,  §  6114  (see  also 
chap.  559,  p.  1093),  which  provides  that 
"suits  by  the  United  States  ...  to 
vacate  and  annul  patents  hereafter  issued 
shall  only  be  brought  within  six  years  after 
the  date  of  the  issuance  of  such  patents." 
This  contention  must  be  overruled  upon  the 
authority  of  Northern  P.  R.  Go.  v.  United 
States,  227  U.  S.  355,  367,  67  L.  ed.  644, 
550,  33  Sup.  Ct.  Rep.  368,  where  it  was  held 
that  this  section  is  part  of  the  public  land 
laws  and  refers  to  patents  issued  for  public 
lands  of  the  United  States.  This  trust 
patent  was  not  issued  for  public  lands  of 
the  United  States,  but  for  reserved  Indian 
lands  to  which  the  public  land  laws  had 
no  application.  And  it  may  be  well  to  ob- 
serve in  passing  that  the  circuit  court  of 
appeals  directed  that  there  be  embodied  in 
the  decree  a  provision  that  the  government 


es,  U9 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tdm, 


holds  the  lands  in  the  same  way  it  held 
them  before  the  patent  was  issued, — ^that 
is,  as  reserved  Indian  lands. 

Another  objection  to  the  suit  is  predi- 
cated upon  the  act  of  April  23,  1004,  chap. 
1489,  33  SUt.  at  L.  297,  Comp.  Stat.  1913, 
§  4212,  limiting  and  defining  the  author- 
ity of  the  Secretary  of  the  Interior  to  cor- 
rect mistakes  in  and  to  cancel  trust  patents 
for  Indian  allotments;  but  of  this  it  is 
enough  to  say  that  we  concur  in  tbe  view 
of  the  Circuit  Court  of  Appeals  that  this 
section,  which  makes  no  r^erence  to  the 
courts,  discloses  no  purpose  to  restrict  or 
define  their  jurisdiction  or  powers  in  suits 
such  as  this. 

Decree   affirmed. 

Mr.  Justice  McReynoIds  took  no  part  in 
the  consideration  or  decision  of  this  case. 


[69]  CHARLES  W.  ANDERSON,  Collector 
of  Internal   Revenue,   etc..   Petitioner, 

V. 

FORTY-TWO   BROADWAY   COMPANY. 
(See  S.  0.  Reporter's  ed.   69-73.) 

Iiitornal  revenue  —  corporation  tax  — 
dedncttnjc  interest  on  mort'^age  debU 

1.  The  amount  to  be  deducted,  on  ac- 
count of  interest  paid  hj  a  realty  corpora- 
tion upon  its  mortgage  indebtedness,  when 
fixing  the  excise  tax  imposed  by  the  act  of 
August  5,  1909  (36  Stat,  at  L.  112,  ohap. 
6,  Comp.  Stat.  1913,  §  6307),  §  88,  upon 
the  conduct  of  business  in  a  corporate  ca- 
pacity, is  governed  by  the  express  provision 
of  t  2  of  that  section,  that  in  ascertaining 
net  income  there  shall  be  deducted  from 
^ross  income  interest  actually  paid  by  the 
corporation  within  the  year  on  its  "bonded 
or  other  indebtedness"  in  an  amount  not 
oxceeding  its  capital  stock,  the  effect  of 
which  provision  is  not  limited  in  this  re- 
spect by  anything  in  the  first  clause  of  said 
paragraph  which  permits  the  deduction  of 
"nil  the  ordinary  and  necessary  expenses 
actually  paid  within  the  year  out  of  income 
in  the  maintenance  and  operation  of  its 
business  and  properties,  including  all  charg- 
es, such  as  rentals  or  franchise  payments 
required  to  be  made  as  a  condition  to  the 
continued  use  or  possession  of  property," 

Note. — On  constitutional  equality  in  the 
United  States  in  relation  to  corporate  taxa- 
tion— see  note  to  Bacon  v.  State  Tax  Comrs. 
60  L.RJl.  321. 

As  to  when  taxes  illegally  assessed  may 
be  recovered  back — see  notes  to  Phelps  v. 
New  York,  2  L.ILA.  626;  State  ex  rel.  Mc- 
Carty  ▼.  Nelson,  4  L.RJ^.  300;  and  Erskine 
V.  Van  Arsdalc,  21  L.  ed   U.  S.  63. 

On  the  constitutionality  of  an  income  tax 
— see  notes  to  Alderman  v.  Wells,  27  L.R.A. 
(N.S.)    864;   and  State  ex  reL  Bolena  v.  I 
Frear,  L.RJL.1916B,  669. 
152 


nor  by  the  language  of  t  1  of  such  seotioa» 
measuring  the  tax  by  reference  to  the  cor- 
poration's ''entire  net  income." 
[For  other  cases,   see   Internal   Revenue.  TIT.. 
In  Digest  Sup.  Ct  1908.] 

Constitutional  law  —  discrimination  — 
classification  —  corporation  tax. 
2.  Construing  the  provisions  of  the 
act  of  August  5,  1909  (36  Stat,  at  L.  112, 
chap.  6,  Comp.  Stat.  1913,  §  G307),  §  38, 
imposing  an  excise  tax  measured  by  n^t  in- 
come upon  the  carrying  on  of  bupiness  in  a 
corporate  capacity,  as  preventing  a  realty 
corporation  from  deducting  from  gross  in* 
come  the  interest  paid  on  mortgage,  indebted- 
ness in  excess  of  its  capital  stock,  does 
not  render  the  act  repugnant  to  the  Feder- 
al Constitution  as  creating  an  arbitrary 
and  unreasonable  classification. 
[For  other  cases,  see  Constitutional  Law,  IT.  a. 
in  Digest  Sup.  Ct.  1908.] 

[No.  246.] 

Argued  October  18,  1915.    Decided  Novem- 
ber 8,   1915. 

ON  WRIT  of  Certiorari  to  the  United 
States  Circuit  Court  of  Appeals  for 
the  Second  Circuit  to  review  a  judgment 
which  aflfirmed  a  judgment  of  the  District 
Court  for  the  Southern  District  of  New 
York  in  favor  of  plaintiff  in  an  action 
against  a  collector  of  internal  revenue  for 
the  refund  of  a  tax.  Reversed  and  remanued 
to  the  District  Court  for  further  proceed- 
ings. 

See  same  case  below,  130  C.  C.  A.  338,  213 
Fed.  777. 

The  facts  are  stated  In  the  opinion. 

Assistant  Attorney  General  Wallace  ar- 
gued the  cause  and  filed  a  brief  for  peti- 
tioner: 

Coitrts  will  hesitate  by  construction  to 
negative  the  operation  of  a  part  of  an  act 
of  Congress. 

Montclair  Twp.  r.  Ramsdell,  107  U.  8. 
147,  152,  2Y  L.  ed.  431,  432,  2  Sup.  Ct 
Rep.  891. 

Moreover,  a  court  will  never  undertake 
to  construe  a  statute  unless  there  is  dis- 
closed a  patent  ambiguity. 

United  States  v.  Wiltberger,  5  Wheat.  76, 
95,  5  L.  ed.  87,  42;  United  States  v.  Balti- 
more ft  O.  8.  W.  R.  Co.  222  U.  S.  8,  13,  6$ 
L.  ed.  68,  69,  32  Sup.  Ct.  Rep.  6. 

The  argument  made  on  behalf  of  the  re- 
spondent that  a  construction  of  the  act  de- 
priving mortgagors  of  the  right  to  deduct 
as  an  expense,  intact  paid  on  mortgages, 
would  work  a  great  hardship  and  injustice 
upon  a  single  class  of  taxpayers,  and  thus 
render  the  act  unoonstitutional,  has  been 
held  unsound  by  this  court. 

Flint  T.  Stone  Tntj  Co.  220  U.  S.  107, 
55  L.  ed.  389,  81  Sap.  Ct.  Rep.  842,  Ann. 
Qw.  1912B,  1312;  Stratton's  Independence  v. 

2S9  U.  8. 


1915. 


ANDERSON  v.  FORTY-TWO  BROADWAY  00. 


70,71 


Howbert,  231  U.  S.  399,  68  L.  ed.  286,  34 
Sup.  Ct.  Rep.  136.  See  also  28  Ops.  Aity. 
Gen.  199. 

The  "net  income"  to  1  per  cent  of  which 
the  tax  is  to  be  equivalent  is  to  be  com- 
puted, not  according  to  principles  of  book- 
keeping which  would  be  applied  by  the  ac- 
countants or  oflicers  or  stockholders  of  the 
corporation,  but  upon  a  basis  specifically  set 
forth  bj  Congress  in  the  act  itself. 

Stratton's  Independence  t.  Howbert, 
supra. 

A  realty  company,  not  being  within  the 
specifically  enumerated  exceptions,  neces- 
sarily falls  within  the  description  of  every 
corporation  organized  for  profit  and  having 
a  capital  stock  represented  by  shares. 

Flint  V.  Stone  Tracy  Co.  220  U.  S.  107, 
55  L.  ed.  389,  31  Sup.  Ct.  Rep.  342,  Ann. 
Cas.  1912B,  1312;  MeCoach  v.  Minehill  & 
S.  H.  R.  Co.  228  U.  S.  296,  302,  303,  67 
L.  ed.  842,  845,  33  Sup.  Ct.  Rep.  419; 
Zonne  v.  Minneapolis  Syndicate,  220  t).  S. 
187,  55  L.  ed.  428,  81  Sup.  Ct.  Rep.  361; 
Lewcllyn  v.  Pittsburgh,  B.  ft  L.  EL  R.  Co. 
137  C.  C.  A.  617,  222  Fed.  181. 

Mr.  Roger  S.  Baldwin  argued  the  cause 
and  filed  a  brief  for  respondent: 

The  word  ''bond"  ihould  not  be  construed 
to  include  a  mortgage.  A  bond  and  a  mort- 
^'a^e  arc  separate  securities  though  for  the 
same  debt,  and  the  one  does  not  include 
the  other.  Thus  a  bond  is  defined  in  Bou- 
vier's  Law  Dictionary  as  being  "an  obliga- 
tion in  writing  and  under  seal,"  and  this 
definition  is  supported  by  the  authorities. 

Koshkonong  v.  Burton,  104  U.  S.  668,  673, 
26  L.  ed.  886,  888. 

A  construction  of  the  act  which  would 
deprive  mortgagors  of  the  right  to  deduct, 
as  an  expense,  interest  paid  on  mortgages, 
would  work  a  great  hardship  and  injustice 
imposed  upon  no  other  class  of  taxpayers. 
Such  construction  would  create  an  arbi- 
trary and  unreasonable  classification,  and 
tiie  act  if  so  construed  might,  on  this 
ground,  be  held  to  be  unconstitutional  un- 
der the  5th  Amendment  to  the  Constitution 
of  the  United  States. 

Connolly  v.  Union  Sewer  Pipe  Co.  184 
U.  S.  540,  560,  46  L.  ed.  679,  690,  22  Sup. 
Ct.  Rep.  431 ;  Cotting  v.  Kansas  City  Stock 
Yards  Co.  (Cotting  v.  Qodard)  183  U.  6. 
79,  111,  46  L.  ed.  92,  109,  22  Sup.  Ct.  Rep. 
30. 

The  corporation  tax  act  should  be  admin- 
istered upon  tha  basis  of  "receipts"  and 
'^ayments,'^  as  expressly  provided  in  the 
law. 

Mutual  Ben.  L.  Ins.  Co.  v.  Herold,  198 
Fed.  214,  afiBrmed  in  120  a  C.  A.  266,  201 
Fed.  918. 
••  Ii.  ed. 


[70]  Mr.  Justice  Pitney  delivered  tha 
opinion  of  the  court: 

This  was  an  action  to  recover  a  tax  al* 
leged  to  have  been  erroneously  imposed  upon 
respondent  for  the  year  1910  under  the  cor- 
poration tax  act  of  August  5, 1909  ( 36  Stat, 
at  L.  112,  chap.  6,  §  38,  Comp.  Stat.  1913, 
§  6307),  and  paid  under  protest,  respondent 
contending  that,  in  ascertaining  its  net  in- 
come for  the  purposes  of  the  tax,  the  entire 
amount  of  the  interest  paid  by  it  within  the 
year  upon  its  mortgage  indebtedness  ought 
to  have  been  allowed,  the  result  of  which 
would  have  been  to  leave  no  net  income  to  bo 
taxed;  whereas  the  assessing  ofTlcer  allowed 
a  deduction  of  interest  upon  an  amount 
equal  only  to  the  capital  stock  of  the  com- 
pany. 

Respondent  is  a  corporation  of  the  class 
commonly  known  as  realty  corporations,  wus 
organized  for  the  purpose  of  constructing 
and  renting  a  building  in  the  city  of  New 
York,  and  transacts  no  other  business.  Its 
paid-up  capital  stock  is  only  $600,  while  it 
has  a  bonded  indebtedness  of  $4,750,0U0,  se- 
cured by  mortgages  upon  its  real  estate,  con- 
sisting of  a  piece  of  land  purchased  and  a 
building  constructed  upon  it  substantially 
with  borrowed  money,  to  secure  the  repay- 
ment of  which  the  bonds  and  mortgages 
were  given. 

Both  the  district  court  (209  Fed.  991) 
and  the  circuit  court  of  appeals  (130  C.  C. 
A.  338,  213  Fed.  777)  held  that  the  inter- 
est  payments  upon  the  entire  mortgage  in- 
debtedness were  deductible  from  the  gross 
income  of  the  corporation  under  clause  1  of 
T[  2,  of  §  38  of  the  act,  and  gave  judgment 
against  the  collector  for  a  refund  of  the 
entire  tax. 

Tliose  portions  of  the  section  that  are 
essential  to  a  determination  of  the  con- 
troversy are  set  forth  in  the  margin,  l  The 
district  court,  conceding  that  the  provision 
[71]  of  the  third  clause  of  the  second  para- 
graph, standing  alone,  would  constitute  suffi- 
cient authority  for  the  action  of  the  asses- 
sor, nevertheless  held  that  the  force  of  this 
provision  must  be  limited,  in  view  of  the 
general  purpose  of  the  section  to  tax  only 
"net  income"  (construed  to  mean  ''gross  in- 
come after  deducting  all  outgo  necessarily 
incident  to  the  business"),  and  also  in  view 
of  the  first  clause  of  the  second  paragraph^ 
which  permits  of  a  deduction  of  "all  ti&8 
ordinary  and  necessary  expenses  actually 
paid  within  the  year  out  of  income  in  the 
nuiintenance  and  operation  of  its  business 

iSeo.  88.  That  every  corporation  .  .  • 
organized  for  profit  and  having  a  capital 
stock  represented  by  shares  .  •  .  shall 
be  subject  to  pay  annually  a  special  excise 
tax  with  respect  to  the  carrying  on  or  doing 

16S 


71-78 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Ooi.  TkuCp 


and  properties,  including  all  chargee  such 
as  rentals  or  franchise  pajments,  required 
to  be  made  as  a  condition  to  the  continued 
use  or  possession  of  property/'  The  court 
therefore  held  that,  in  the  case  of  such  a 
corporation  as  respondent,  the  amounts 
paid  for  interest  on  the  mortgages  must  be 
deducted  in  order  to  arrire  at  net  income. 
The  circuit  court  of  appeals  entertained  a 
similar  view,  holding  that  such  interest 
payments,  in  the  case  of  a  realty  corpora- 
tion, were  ordinary  and  necessary  expenses 
in  the  maintenance  and  operation  of  the 
business,  and  were  also  charges  required 
[72]  to  be  paid  as  a  condition  to  the  con- 
tinued use  or  possession  of  its  property, 
within  the  meaning  of  subdivision  1;  and 
that  subdivision  3  must  be  limited  in  its 
effect  to  "the  usual  corporate  indebtedness 
which  is  not  an  ordinary  expense  of  main- 
tenance, nor  a  charge,  payment  of  which  is 
a  condition  of  the  continued  use  or  posses- 
sion of  property." 

With  these  views  we  cannot  agree.  There 
was  error,  as  it  seems  to  us,  in  seeking  a 
theoretically  accurate  definition  of  "net  in- 
come," instead  of  adopting  the  meaning 
which  is  so  clearly  defined  in  the  act  itself. 

As  has  been  repeatedly  pointed  out  by 
this  court  in  previous  cases  (Flint  v.  Stone 
Tracy  Co.  220  U.  S.  107,  145,  150,  151,  65 
L.  ed.  380,  411,  413,  31  Sup.  Ct.  Rep.  342, 
Ann.  Cas.  1912B,  1312;  McCoach  v.  Mine- 
hill  &  S.  H.  R.  Co.  228  U.  S.  296,  306,  et 
seq.,  67  L.  ed.  842,  847,  33  Sup.  Ct.  Rep. 
410;  United  States  v.  Whitridge,  231  U. 
S.  144,  147,  58  L.  ed.  159,  161,  34  Sup.  Ct. 
Rep.  24;  Stratton*s  Independence  v.  How- 
bert,  231  U.  S.  399,  414,  58  L.  ed.  286,  291, 
34  Sup.  Ct.  Rep.  136),  the  act  of  1909  was 
not  in  any  proper  sense  an  income  tax  law, 
nor  intended  as  such,  but  was  an  excise 
upon  the  conduct  of  business  in  a  corporate 
capacity,  the  tax  being  measured  by  refer- 
ence to  the  income  in  a  manner  prescribed 
by  the  act  itself.  And  it  is  very  clear, 
from  a  reading  of  §  38,  that  the  phrase 
"entire  net  income,"  as  used  in  its  first 
-paragraph,  has  no  other  meaning  than  that 
which  is  particularly  set  forth  in  the  sec- 
ond  paragraph,   which  declares,   in  terms. 


how  "such  net  income  shall  b^  ascertained.** 
It  may  well  be  that  mortgage  interest  may, 
under  special  circumstances,  be  treated  as 
among  the  "ordinary  and  necessary  ex- 
penses," or  as  included  among  the  charges 
''required  to  be  made  as  a  condition  to  tha 
continued  use  or  possession  of  property.** 
See  28  Ops.  Atty.  Qen.  198.  But  interest 
upon  the  "bonded  or  other  indebtedness" 
of  the  corporation,  whether  such  indebted- 
ness be  secured  by  mortgage  or  not,  comes 
within  the  specific  provision  of  the  third 
clause,  whose  ejQTect,  in  our  opinion,  is  not 
in  this  respect  limited  by  anything  con- 
tained in  the  first.  Congress  evidently  had 
in  view  the  fact  that  some  corporations 
(other  than  banks  and  like  [73]  institu- 
tions, which,  for  obvious  reasons,  are  sepa- 
rately considered ) ,  carry  a  current  indebted* 
ness  exceeding  the  amount  of  the  paid-up 
capital  stock,  and,  with  respect  to  such  cor- 
porations, intended  to  limit  the  interest  de- 
duction to  so  much  of  the  indebtedness  as 
did  not  exceed  the  capital.  N6r  can  we  see 
the  least  ground  for  the  insistence  that  this 
results  in  an  arbitrary  classification.  It  is 
not  necessary  to  attribute  to  Congress  a 
purpose  to  discourage  or  impose  an  extra 
burden  upon  corporations  carrying  on  their 
operations  with  a  nominal  capital  stock, 
or  with  an  indebtedness  largely  exceeding 
the  amount  of  the  capital.  It  is  more  rea- 
sonable to  say  that  Congress  deemed  that 
where  the  indebtedness  does  exceed  the  capi- 
tal it  should  no  longer  be  treated  as  an 
incident,  but  that  the  carrying  of  the  in- 
debtedness should  be  considered  as  a  prin- 
cipal object  of  the  corporate  activities,  that 
the  operations  of  such  a  corporation  are  con- 
ducted more  for  the  benefit  of  the  creditors 
than  of  the  stockholders,  and  that  the  con- 
tribution of  the  corporation  to  the  expenses 
of  the  government  should  be  admeasured 
with  this  fact  in  view.  There  is  no  question 
of  the  power  of  Congress  to  adopt  such  a 
basis  of  distinction,  and,  since  the  line  must 
be  drawn  somewhere,  it  was  certainly  not 
arbitrary  to  draw  it  at  the  precise  point 
where  the  pecuniary  interest  of  creditors 
overbalanced  that  of  stockholders. 

Judgment    reversed,    and    the    cause    re- 


business  by  such  corporation  .  .  .  equiv- 
alent to  1  per  centum  upon  the  entire  net 
income  over  and  above  $6,000  received  by 
it  from  all  sources  during  such  year.  .  .  . 
Provided,  however,  That  nothing  in  this 
section  contained  shall  apply  to  [certain 
specified  classes  of  or^nizations,  not  in- 
cluding realty  corporations]. 

Second.  Such  net  income  shall  be  ascer- 
tained by  deducting  from  the  gross  amount 
of  the  income  of  such  corporation  .  .  . 
received  within  the  year  from  all  sources, 
(first)  all  the  ordinaiy  and  necessary  ex- 
psBsses  actually  paid  within  the  year  out  of 
J54 


income  in  the  maintenance  and  operation  of 
its  business  and  properties,  including  all 
charges  such  as  rentals  or  franchise  pay- 
ments, required  to  be  made  as  a  condition  to 
the  continued  use  or  possession  of  property; 
.     .  (third)  interest  actually  paid  with- 

in the  year  on  its  bonded  or  other  indebted- 
ness to  an  amount  of  such  bonded  and 
other  indebtedness  not  exceeding  the  paid- 
up  capital  stock  of  such  corporation,  .  .  . 
and  in  the  case  of  a  bank,  banking  associa- 
tion or  trust  company,  all  interest  actually 
paid   by   it   withm   the  year   on   deposit; 

ast  u.  8, 


1916. 


UNITED  STATES  ▼.  BASNOW. 


73,74 


■***^*^  to  the  Diitrict  Court  for  further 
prooeedingt  in  Mcordaoee  with  this  opin* 
ion. 

Mr.  Jnttice  McReynoIds  took  no  part 
In  the  consideration  or  deciaion  of  this  case. 


Argued  Oetober  18,  1915.    Decided  Norem- 

bar  8,  1916. 


[74]  UNITED  STATES,  PUT.  in  Err, 

V. 

M.  J.  BABNOW. 
(See  6.  C.  Reporter'a  ed.  74-80.) 

False  peraonatioa  —  noneziatinff  oflloe 
or  employment. 

1.  A  faJae  repreaentation  aa  to  some 
oflioe  or  empiojment  which  liaa  no  legal  or 
actual  exiitcnee,  aa  well  aa  a  false  pereona- 
tion  of  a  particular  Federal  officer  or  em- 
ployee, or  lalae  pretense  of  holding  an  office 
or  employment  that  actually  exists  in  the 
Federal  government,  is  comprehended  by 
the  proTiaiona  of  the  Federal  Criminal 
Code,  f  82,  for  the  punishment  of  one  who, 
with  intent  to  defraud,  falsely  assumes  or 
pretends  to  he  an  officer  or  employee  acting 
under  the  authority  of  the  United  States,  or 
any  department,  or  any  officer  of  the  govern- 
ment tiiereof,  and  takes  upon  himself  to  act 
as  £uch,  or  who,  in  such  pretended  character, 
demands  or  obtains  anything  of  value 
from  any  person  or  from  the  I^ited  States 
or  any  department,  or  officer  of  the  gov- 
ernment. 

State  —  relation  to  Federal  government 
—  erltnefi. 

2.  Congress  did  not  encroach  upon  the 
functions  of  the  several  states  to  protect 
their  own  citizens  and  residents  from  fraud 
by  enacting  the  provisions  of  the  Federal 
Criminal  Code,  $  32,  under  which  a  person 
may  be  criminally  punished  for  falsely  as- 
suming or  pretendmg,  with  intent  to  de- 
fraud, to  be  a  Federal  officer  or  employee, 
although  the  office  or  employment  to  which 
the  accused  pretends  title  may  have  no  legal 
or  actual  existence. 

IFor  other  cases,  see  States,  IV.  k.  In  Digest 
Sup.  Ct.  1008.] 

Falae  personation  —  complete  offense  — 
Injury  to  party  defrauded. 

3.  The  consummation  of  the  fraud, 
with  consequent  injury  to  the  party  de- 
frauded, is  not  essential  to  complete  the 
offense  denounced  by  the  Federal  Criminal 
Code,  I  32,  which  provides  for  the  punish- 
ment of  one  who,  with  intent  to  defraud, 
falsely  assumes  or  pretends  to  he  an  officer 
<v  employee  acting  under  the  authority  of 
the  tinited  Statea,  or  any  department,  or 
ainr  officer  of  the  government  thereof,  and 
taaea  upon  himself  to  act  aa  such,  or  who, 
in  such  pretended  character,  demands  or  ob- 
tains anything  of  value  from  anv  person  or 
fnnn  the  United  States  or  any  department, 
or  officer  of  the  government. 


I 


[No.  454.] 


••  Ii.  ed. 


N  EREOR  to  the  District  Court  of  the 
United  SUtes  for  the  Eastern  District 
of  Pennsylvania  to  review  a  judgment  sus- 
taining a  demurrer  to  an  indictment  which 
charges  the  false  personation  of  a  Federal 
employee.  Reversed  and  remanded  for  fur- 
ther proceedings. 

See  same  case  below,  221  Fed.  140. 

The  facts  are  stated  in  the  opinion. 

Solicitor  (General  DaTia  argued  the  cause, 
and,  with  Mr.  Robert  SzoUi,  filed  a  hrief 
for  plaintiff  in  error: 

The  distinction  between  false  personation 
of  an  individual  and  false  pretense  of  official 
authority  appeara  in  many  atatutea  and  de- 
cisions. 

Young  V.  Rex,  3  T.  R.  98,  1  Revised  Rep. 
660;  Reg.  v.  Hague,  4  Beat  k  S.  716,  33  L. 
J.  Mag.  Caa.  N.  S.  81,  10  Jur.  N.  &  359, 
9  L.  T.  N.  S.  648,  12  Week.  Rep.  310,  9 
Cox,  a  C.  412;  Whiteley  t.  Chappell,  11 
Cox,  C.  C.  307,  38  L.  J.  Mag.  Caa.  N.  S.  51, 
L.  R.  4  Q.  B.  147,  19  L.  T.  N.  S.  855,  17. 
Week.  Rep.  175;  People  v.  Maurin,  77  CaL 
436,  19  Par.  832;  People  v.  Knox,  119  CaL 
73,  51  Pac  19. 

Pretense  of  official  authority  may  be  ae- 
OMuplished  without  reference  to  any  exist- 
ing individuaL 

LitteU  V.  United  SUtes,  95  C.  C.  A.  148, 
169  Fed.  620;  United  Statea  v.  Ballard.  118 
Fed.  757;  United  SUtes  v.  Brown,  119  Fed. 
482;  United  SUtea  v.  CurUSn,  43  Fed.  433; 
Brown  ▼.  SUte,  —  Tex.  Crim.  Rep.  — ,  170 
S.  W.  714;  Com.  T.  Connolly,  97  Masa.  591; 
Lansing  v.  People,  67  111.  241. 

The  intent  to  defraud  being  present,  a 
failure  to  eonaummaU  the  fraud  Is  no  de- 
fense. 

Com.  T.  Wilgua,  4  Pidc  177;  Pearee  ▼. 
State,  115  Ala.  115,  22  So.  502;  SUte  t. 
Thatcher,  35  M.  J.  L.  445;  Reg.  ▼.  Bloom- 
field,  Car.  ft  M.  537,  6  Jur.  224;  State  v. 
Lewis,  41  La.  Ann.  590,  6  So.  536;  2  Wharl 
Crim.  Law,  11th  ed.  1641,  f  1467;  Rex  v. 
Ady,  7  Car.  ft  P.  .140;  Heas  v.  SUte,  5 
Ohio,  12,  22  Am.  Dec.  767 ;  StaU  ▼.  Wash- 
ington, 1  Bay,  120,  1  Am.  Dec  601;  Com. 
T.  Ladd,  15  Mass.  526;  United  Ktates  ▼. 
Lawrence,  13  Blatehf.  211,  Fed.  Cas.  No. 
15,572. 

To  susUin  a  charge  of  fraud  it  is  not 
neoeesary  to  show  any  injury  in  pecuniary 
or  property  sense  susUined  by  the  person 
defrauded. 

Haas  V.  Henkel,  216  U.  &  462,  480,  54 
L.  ed.  569,  577,  30  Sup.  a.  Rep.  249,  17 
Ann.  Caa.  1112;  United  SUtes  v.  Plykr, 
222  U.  S.  15,  17,  56  L.  ed.  70,  32  Sup.  Ct. 
Rep.  6. 


76-77 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct. 


Mr.  Daniel  Thew  Wright  axgucd  the 
cause,  and,  with  Messrs.  T.  Morris  Wamp- 
ler  and  Henry  D.  Green,  filed  a  brief  for 
defendant  in  error: 

The  act  creates  two  distinct  offenses. 

United  States  v.  Curtain,  43  Fed.  433; 
United  States  v.  Taylor,  108  Fed.  621; 
United  -  States  v.  Farnham,  127  Fed.  478; 
United  States  ▼.  Rush,  196  Fed.  570:  Lit- 
tel)  V.  United  States,  05  C.  C.  A.  148,  100 
Fed.  «21. 

ThA  construction  sought  by  the  govern* 
ment  would  invalidate  the  statute. 

United  SUtes  v.  Fox,  05  U.  S.  670-673,  24 
L.  ed.  538-540 ;  United  SUtes  v.  Harris,  106 
U.  S.  620,  27  L.  ed.  290,  1  Sup.  Ct.  Rep. 
601. 

An  element  made  essential  to  guilt  by 
the  statute  must  be  alleged  and  proven  in 
the  courts. 

United  States  v.  Farnham,  127  Fed.  478; 
People  ▼.  Cronin,  80  Mich.  646,  45  N.  W. 
479. 

[75]  Mr.  Justice  Pitney  delivered  the 
opinion  of  the  court: 

This  case  is  brought  here  under  the  crimi- 
nal appeals  act  (34  Stat,  at  L.  1246,  chap. 
2564,  Comp.  Stat.  1913,  §  1704),  to  review 
a  judgment  of  the  district  court  (221  Fed. 
140),  sustaining  a  demurrer  to  an  indict- 
ment founded  upon  §  32  of  the  Criminal 
Code  of  March  4,  1009  (35  Stat,  at  L.  1088, 
1095,  chap.  321,  Comp.  Stat.  1913,  §§  10,165, 
10,196).  By  that  section  these  offenses  are 
prohibited : 

(1)  With  Intent  to  defraud  either  the 
United  States  or  any  person,  the  falsely  as- 
suming or  pretending  to  be  an  officer  or 
employee  acting  under  the  authority  of  the 
United  States,  or  any  department,  or  any 
officer  of  the  government  thereof,  and  tak- 
ing upon  oneself  to  act  as  such. 

(2)  With  intent  to  defraud  either  the 
United  States  or  any  person,  the  falsely  as- 
suming or  pretending  to  be  an  officer  or 
employee,  etc.,  and  in  such  pretended  char- 
acter demanding  or  obtaining  from  any  per- 
son or  from  the  United  States,  or  any  de- 
partment, or  any  officer  of  the  government 
thereof,  any  money,  paper,  document,  or 
other  valuable  thing. 

The  indictment  contains  six  counts,  of 
which  the  first,  third,  and  fifth  are  based 
upon  the  former,  and  the  second,  fourth, 
and  sixth  upon  tiie  latter  of  these  prohibi- 
tions. The  first  count  charges  that  defend- 
ant, with  intent  to  defraud  a  certain  per- 
son named,  did  falsely  pretend  to  be  an 
empl<yyee  of  the  United  States  acting  under 
the  authority  of  the  United  States,  to  wit, 
an  agent  employed  by  the  government  to  sell 
a  certain  set  of  books  entitled,  "Messages 
and  Papers  of  Presidents,"  and  did  then 
156 


and  there  take  upon  himself  to  act  as  such 
agent,  in  that  he  visited  tlie  person  named 
and  falsely  pretended  to  him  that  he  was 
such  an  employee  of  the  United  States,  em- 
ployed as  aforesaid  for  thu  purpose  afore- 
said. The  third  and  fifth  counts  differ  only 
as  to  the  names  of  tbe  persona  mentioned 
and  the  dates  of  the  alleged  offenses. 

[76]  The  second  count  charges  that  de- 
fendant, with  intent  to  defraud  a  certain 
person  named,  did  falsely  pretend  to  be  an 
employee  of  the  United  States  acting  under 
the  authority  of  the  United  States,  to  wit, 
an  agent  employed  by  the  government  to  sell 
a  certain  set  of  books  entitled,  ''Messuges 
and  Papers  of  Presidents,"  and  in  such  pre- 
tended cliaracter  did  obtain  from  the  per- 
son named  the  sum  of  $10,  which  he  would 
not  have  given  to  defendant  unless  he  had 
supposed  him  to  be  an  employee  of  the  gov- 
ernment, and  had  supposed  that  the  money 
was  to  be  paid  over  to  the  government  on 
account  of  the  subscription  price  of  the 
books,  etc.  The  fourth  and  sixth  counts 
are  in  like  form. 

It  was  and  is  admitted  that  there  waa 
not  in  existence  such  an  employee  or  such 
an  employment  as  it  was  alleged  the  de- 
fendant pretended. 

The  district  court  held  that  the  gist  of 
the  offense  is  the  false  personation  of  an 
officer  or  employee  of  the  United  States, 
and  in  order  to  constitute  such  an  offense 
there  must  be  personation  of  some  particu- 
lar person  or  class  of  persons,  since  there 
cannot  be  a  false  personation  of  a  sup- 
posititious individual  who  never  existed 
or  whose  class  never  existed.  Upon  thia 
construction  of  the  statute,  all  of  the  counts 
fell. 

We  think  this  is  to  read  the  act  in  too 
narrow  a  sense.  Not  doubting  that  a  false 
personation  of  a  particular  officer  or  em- 
ployee of  the  government,  or  a  false  pretense 
of  holding  an  office  or  employment  that 
actually  exists  in  the  government  of  the 
United  States,  is  within  the  denunciation 
of  §  32,  we  tiiink  it  has  a  broader  reach. 
No  convincing  reason  is  suggested  for  con- 
struing it  more  narrowly  than  the  plain 
import  of  its  language.  To  "falsely  assume 
or  pretend  to  be  an  officer  or  employee  act- 
ing under  the  authority  of  the  United 
States,  or  any  department,  or  any  officer  of 
the  government  thereof,"  is  the  thing  pro- 
hibited. One  who  falsely  assumes  or  pre- 
tends [77]  to  hold  an  office  that  has  a  <fe 
fure  existence  is  admittedly  within  its  mean* 
ing.  That  is,  where  the  assumption  or 
pretense  is  false  in  part,  but  contains  a 
modicum  of  truth,  the  statute  is  violated. 
Why  should  it  be  deemed  less  an  offense 
where  the  assumption  or  pretense  is  en- 
tirely false,  as  where  ths  very  office  or  em- 

239  V.  S» 


1916. 


UNITED  STATES  ▼.  BARNOW. 


77-79 


plojment  to  which  the  accused  pretends 
title  has  no  legal  or  actual  existence 7  It 
is  insisted  that  the  words  next  following — 
''ahall  take  upon  himself  to  act  as  such, 
or  shall  in  such  pretended  character  de- 
mand or  obtain/'  etc. — indicate  an  intent  to 
punish  only  false  personation  of  existing 
<Acer8  or  employees,  and  not  a  false  rep- 
resentation as  to  some  supposititious  em- 
ployment by  the  government.  But  to  "take 
upon  himself  to  act  at  such"  means  no  more 
than  to  assume  to  act  in  the  pretended 
character.  It  requires  something  beyond 
the  false  pretense  with  intent  to  defraud; 
there  must  be  some  act  in  keeping  with  the 
pretense  (see  People  t.  Cronin,  80  Mich. 
646,  45  N.  W.  479);  but  it  would  strain 
the  meaning  of  the  section  to  hold  that 
the  offender  must  act  as  a  veritable  officer 
of  the  government  would  act.  And  so,  in 
the  second  branch  of  the  section,  the  de- 
manding or  obtaining  of  the  thing  of  value 
must  be  done  "in  such  pretended  character," 
— ^words  that  are  far  from  importing  that 
the  office  or  employment  must  be  one  that 
is  duly  established  by  law. 

It  is  said  that  to  give  to  the  statute  the 
broader  meaning  extends  it  beyond  the  limi- 
tations that  surround  the  power  of  Con- 
gress, and  encroaches  upon  tl^e  functions  of 
the  several  states  to  protect  their  own  citi- 
aens  and  residents  from  fraud.  We  are  re- 
ferred to  United  States  v.  Fox,  95  U.  S. 
670,  672,  24  L.  ed.  538,  589,  where  H  was 
declared  by  Mr.  Justice  Field,  speaking  for 
the  court:  "An  act  committed  within  a 
state,  whether  for  a  good  or  a  bad  purpose, 
or  whether  with  an  honest  or  a  criminal  in- 
tent, cannot  be  made  an  offense  against  the 
United  States  unless  it  have  some  relation 
to  the  execution  of  a  power  of  Congress,  or 
to  some  matter  [78]  within  the  jurisdiction 
of  the  United  States.  An  act  not  having  any 
such  relation  is  one  in  respect  to  which  the 
state  can  alone  legislate."  Accepting  this 
criterion,  the  legislation  now  under  con- 
sideration is  well  within  the  authority  of 
Congress.  In  order  that  the  vast  and  com- 
plicated operations  of  the  government  of 
the  United  States  shall  be  carried  on  suc- 
cessfully and  with  a  minimum  of  friction 
and  obstruction,  it  is  important— or,  at 
least.  Congress  reasonably  might  so  con- 
sider it — not  only  that  the  authority  of 
the  governmental  officers  and  employees  be 
respected  in  particular  cases,  but  that  a 
spirit  of  respect  and  good  will  for  the  gov- 
ernment and  its  officers  shall  generally  pre- 
vail. And  what  could  more  directly  impair 
this  spirit  than  to  permit  unauthorized 
and  unscrupulous  persons  to  go  about  the 
country  falsely  assuming,  for  fraudulent 
purposes,  to  be  entitled  to  the  respect  and 
credit  due  to  an  officer  of  the  govemmentt 
••  I«.  ad. 


It  is  the  false  pretense  of  Federal  authority 
that  is  the  mischief  to  be  cured;  of  course, 
only  when  accompanied  with  fraudulent  in- 
tent, but  such  a  pretense  would  rarely  be 
made  for  benevolent  purposes.  Now,  the 
mischief  is  much  the  same,  and  the  power 
of  Congress  to  prevent  it  is  quite  the  same, 
whether  the  pretender  names  an  existing  or 
a  nonexisting  office  or  officer,  or,  on  the  oth- 
er hand,  does  not  particularise  with  respect 
to  the  office  that  he  assumes  to  hold. 
Obviously,  if  the  statute  punished  the  of- 
fense only  when  an  existing  office  was  as- 
sumed, its  penalties  could  be  avoided  by  the 
easy  device  of  naming  a  nonexistent  office. 

Therefore,  it  seems  to  us,  the  statute  is 
to  be  interpreted  according  to  its  plain 
language  as  prohibiting  any  false  assump- 
tion or  pretense  of  office  or  employment 
under  the  authority  of  the  United  States, 
or  any  department  or  officer  of  the  govern- 
ment, if  done  with  an  intent  to  defraud,  and 
accompanied  with  any  of  the  specified  acts 
done  in  the  pretended  character,  and  the 
district  court  [79]  erred  in  attributing  to 
the  act  a  more  restricted  meaning. 

We  think  there  was  further  error  in  the 
ruling  of  the  court  that  the  even-numbered 
counts  must  fall  for  the  reason,  as  expressed 
in  the  opinion,  that  there  was  no  allegation 
to  sustain  a  charge  that  Hhe  person  alleged 
to  be  defrauded  was  deprived  of  any  right, 
interest,  or  property,  or  that  he  was  cheated 
or  overreached.  In  this  the  coiurt  followed 
United  States  v.  Rush,  196  Fed.  579. 

Since  our  review,  under  the  criminal  ap- 
peals act,  is  confined  to  passing  upon  ques- 
tions of  statutory  construction,  we  are  not 
here  concerned  with  the  interpretation 
placed  by  the  court  upon  the  indictment. 
United  States  v.  Patten,  226  U.  S.  525,  535, 
57  L.  ed.  333,  338,  44  L.R.A.(N.S.)  325, 
33  Sup.  Ct.  Rep.  141,  and  cases  cited.  We 
must,  for  present  purposes,  accept  that  in- 
terpretation; hence,  we  express  no  opinion 
as  to  whether  the  district  court  erred  in 
holding  that  the  even-numbered  counts  did 
not  allege  a  consummated  fraud.  The  ques- 
tion with  which  we  have  to  deal  is  whether 
the  second  branch  of  S  32  of  the  Criminal 
Code,  upon  which  the  even-numbered  counts 
are  founded,  requires  that  the  fraud  shall 
be  consummated,  with  consequent  injury  to 
the  party  defrauded,  in  order  that  the  of- 
fense shall  be  complete. 

It  has  been  held  that  in  an  indictment 
under  §  5440,  Rev.  Stat.,  for  a  conspiracy 
to  defraud  the  United  States,  it  is  not  es- 
sential that  the  conspiracy  shall  contem- 
plate a  financial  loss,  or  that  one  shall  re- 
sult; and  that  the  statute  is  broad  enough 
to  include  any  conspiracy  for  the  purpose 
of  impairing,  obstructing,  or  defeating  the 
lawful  function  of  any  d^artment  of  the 

157 


70-82 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.'Tbk, 


government.  Haas  ▼.  Henkel,  216  U.  S. 
462,  479,  54  L.  ed.  669,  677,  30  Sup.  Ct.  Rep. 
249,  17  Ann.  Cas.  1112.  And  with  respect 
to  §  5418,  Rev.  Stat.,  prohibiting  the  forging 
of  any  public  record  "for  the  purpose  of 
defrauding  the  United  States/'  a  similar 
decision  was  reached.  United  States  ▼. 
Plyler,  222  U.  S.  16,  66  L.  cd.  70,  32  Sup. 
Ct.  Rep.  6. 

Like  reasoning,  we  think,  must  be  applied 
to  §  32  of  [80]  the  Criminal  Code,  whether 
the  United  States  or  "any  person"  be  the  in- 
tended victim.  If,  with  intent  to  defraud, 
and  by  falsely  assuming  or  pretending  to 
be  an  officer  or  employee  acting  under  the 
authority  of  the  United  States,  the  accused 
shall,  in  the  pretended  character,  have  de- 
manded or  obtained  any  money,  paper,  docu- 
ment, or  other  valuable  thing,  the  offense 
is  complete,  notwithstanding  some  valuable 
consideration  was  offered  or  given  by  the 
pretended  employee  for  that  which  he  de- 
manded or  obtained.  It  is  the  aim  of  the 
section  not  merely  to  protect  innocent  per- 
sons from  actual  loss  through  reliance  upon 
false  assumptions  of  Federal  authority,  but 
to  maintain  the  general  good  repute  and 
dignity  of  the  service  itself.  It  is  incon- 
sistent with  this  object,  as  well  as  with  the 
letter  of  the  statute,  to  make  the  ques- 
tion whether  one  who  has  parted  with  his 
property  upon  the  strength  of  a  fraudulent 
representation  of  Federal  employment  has 
received  an  adequate  quid  pro  quo  in  value 
determinative.  Of  course,  we  do  not  mean 
to  intimate  that  it  may  not  in  a  proper  case 
be  taken  into  consideration  as  a  circum- 
stance evidential  upon  the  question  of  in- 
tent. 

The  judgment  must  be  reversed,  and  the 
cause  remanded  for  further  proceedings  in 
accordance  with  this  opinion. 

Reversed. 

Mr.  Justice  McReynoIds  took  no  part 
in  the  consideration  or  decision  of  this  case. 


[81]    NATIONAL    BANK    OF    ATHENS, 

Appt., 

V. 

F.  0.  SHACKELFORD,  Trustee  in  Bank- 
ruptcy for  J.  N.  Webb. 

(See  S.  C.  Reporter's  ed.  81,  82.) 

Appeal  —  review  of  facts  —  concurrent 
findings. 

Concurrent  findings  of  the  two  lower 
courts  that,  as  a  matter  of  fact,  a  mort- 

NoTB. — On  appellate  jurisdiction  of  Fed- 
eral Supreme  Court  over  circuit  courts  of 
apptals— see  notes  to  Bagley  v.  General  Fire 
Extinguisher  Co.  63  L.  ed.  U.  S.  605;  and 
St.  Anthony  Church  v.  Pennsylvania  R.  Co. 
69  L.  ed.  U.  S.  1119. 
158 


gage  on  real  property  was  void  as  to  the 
creditors  of  the  mortgagor  because  it  waa 
executed  and  withheld  from  record  for  the 
purpose  of  hindering,  delaying,  or  defraud- 
ing them,  will  not  be  disturbed  on  i^)peal 
unless  clearly  shown  to  be  erroneous. 
[For  other  cases,  see  Appeal  and  Error,  4931- 
4959,  in  Digest  Sup.  Ct.  1008.] 

[No.  40.] 

Argued  October  29, 1916.    Decided  November 

8,  1915. 

APPEAL  from  the  United  States  Circuit 
Court  of  Appeals  for  the  Fifth  Circuit 
to  review  a  decree  which  affirmed  a  decree 
of  the  District  Court  for  the  Northern  Dis- 
trict of  Georgia,  adjudging  a  mortgage  deed 
invalid  as  against  general  credit4)r8  of  the 
mortgagor.     Aflirmed. 

See  same  case  below,  126  C.  C.  A.  676, 
208  Fed.  677. 

The  facts  are  stated  in  the  opinion. 

Mr.  Jolm  J.  Strickland  argued  the 
cause,  and,  with  Mr.  Roy  M.  Strickland, 
filed  a  brief  for  appellant. 

Messrs.  Lamar  O.  Rack<sr  and  Horace 
M.  Holden  argued  the  cause,  and,  with 
Messrs.  Stephen  C.  Upson,  Andrew  J.  Cobb» 
and  Howell  C.  Erwin,  filed  a  brief  for  ap- 
pellee. 

Mr.  Justice  McReynoIds  delivered  the 
opinion  of  the  court: 

This  controversy  arose  in  a  bankruptcy 
proceeding,  and  was  begun  in  the  United 
States  district  court  for  the  northern  dis- 
trict of  Georgia.  Appellant  claims  that  it 
holds  a  valid  lien  on  certain  real  estate  in 
the  city  of  Athens,  formerly  the  property 
of  the  bankrupt,  Webb,  under  a  mortgage 
deed  executed  by  him  November  6,  191 1» 
[82]  but  not  recorded  until  noon,  August 
14,  1912,  a  few  hours  before  the  petition  in 
involuntary  bankruptcy  was  filed.  Among 
other  things,  the  trustee  asserts  that  the 
mortgage  it  void  as  to  creditors  because 
fraudulently  withheld  from  record.  Bank- 
ruptcy act,  I  70.  Georgia  Code,  1910,  § 
3224. 

Having  heard  the  witnesses  and  upon  the 
entire  evidence,  the  district  court,  citing  and 
purporting  to  follow  Re  Duggan,  106  C.  C. 
A.  51,  183  Fed.  405  (1910),  found  and  ad- 
judged the  deed  invalid  as  against  general 
creditors.  Affirming  this  action,  the  circuit 
court  of  appeals  for  the  fifth  circuit  de- 
clared: "The  evidence  in  this  case  tends 
strongly  to  show  that,  although  the  mort- 
gage given  by  the  bankrupt  to  the  appellant 
was  for  a  valid  consideration  and  effective 
as  between  the  parties  thereto,  the  same  by 
understanding,  if  not  agreement,  was  with- 

239  U.  8. 


1911. 


PABKER  V.  MONROIQ. 


82,  8S 


Md  from  record,,  so  as  not  to  affect  the 
nortgagor's  credit;  and  we  therefore  concur 
with  the  trial  judge  in  his  disposition  of 
the  case."  125  C.  C.  A.  676,  676,  208  Fed. 
677,  678.  In  the  Duggan  Case  the  same 
court  had  held  fraudulent  and  void,  both  as 
to  prior  and  subsequent  creditors,  a  chattel 
mortgage  executed  by  a  bankrupt,  but  with- 
held from  record  under  agreement  so  to  do 
because  of  the  effect  which  recordation 
would  have  on  her  credit. 

Considering  all  said  and  adjudicated  by 
the  two  courts  below,  we  must  conclude  they 
concurred  in  finding,  as  matter  of  fact,  that 
the  mortgage  in  question  Was  void  as  to 
creditors  because  executed  and  withheld 
from  record  for  the  purpose  of  hindering, 
delaying,  or  defrauding  them.  The  rule  is 
well  settled  that  a  finding  of  this  nature 
will  not  be  disturbed  upon  review  here  un- 
leM  clearly  shown  to  be  erroneous.  Wash- 
ington Securities  Co.  v.  United  States,  234 
U.  a  76,  78,  68  L.  ed.  1220,  1222,  34  Sup. 
Ct  Rep.  726;  Stuart  v.  Hayden,  169  U.  S. 
1,  14,  42  L.  ed.  639,  643,  18  Sup.  Ct.  Rep. 
274.  An  examination  of  the  record  reveals 
no  dear  error,  and,  accordingly  the  judg- 
ment appealed  from  must  be  affirmed. 


[88]  OORKELIUS  B.  PARKER  and  Janie 
B.  Parker,  His  Wife,  Appts., 

V. 

ANTONIO  MONROIQ  et  al. 
(See  8.  C.  Reporter's  ed.  83-87.) 

Husband  and  wife  —  community  prop- 
erty —  conveyance  without  wife's  con- 


1.  A  contract  between  a  married  man 
owning  an  option  to  buy  certain  real  prop- 
ertar  and  a  corporation,  by  which  the  latter, 
as  part  eonsideration  for  its  agreement  to 
purchase  a  part  of  the  property  embraced  in 
the  option,  was  given  an  easement  of  way 
over  the  entire  property,  is  not  invalid  be- 
cause the  wife  did  not  assent  thereto,  as  is 
essential  in  Porto  Rico  to  the  valid  disposi- 
tioo  of  real  property  by  the  community, 
since  by  such  contract  the  exercise  of  the  op- 
tion was  submitted  to  a  limitation  which 
followed  the  property  into  the  hands  of  the 
community  and  diminished  the  estate  which 
it  would  otherwise  have  been  entitled  to 
under  the  option,  and  the  community  is 
therefore  under  a  legal  obligation  to  respect 
and  give  effect  to  the  easement, — especial- 
ly since  the  community  secured  through  the 
eontraet  with  the  corporation  the  means, 
la  part,  at  least,  to  enable  it  to  acquire,  un- 
der the  option,  the  property  which  remained. 
[For  other  cases,  eee  Husband  and  "Wife.  II. 
^  e;  II.  g,  to  Digest  Sup.  Ct  1008.1 

NoTB. — On   specific  performance  of  con- 
tracts for  conveyance  where  wife  refuses  to 
unite  in  the  conveyance — see  note  to  Bar- 
bour V.  Hickey,  24  L.R.A.  763. 
••  Ii.  ed. 


liimitation  of  actions  —  when  action 
barred  —  specific  performance. 

2.  The  right  to  enforce  full  performance 
of  an  agreement  by  the  holder  of  an  option 
on  real  property  to  grant  to  a  corporation 
upon  condition  of  its  purchase  of  a  part  of 
the  property,  an  easement  of  way  over  the 
entire  property,  is  not  barred  where  the 
former  refuses  to  grant  the  easement  over 
that  part  of  the  property  embraced  in  the 
option  which  was  not  included  in  the  cor- 
poration's purchase,  by  the  limitation  pre- 
scribed by  Porto  Rico  Ck>de  1913,  §  4481, 
which  on  its  face  is  plainly  applicable  only 
to  actions  for  lesion  in  cases  of  sale  em- 
braced by  §  4480  of  the  same  Code. 
[For  other  canes,  see  Limitation  of  Actions, 
III.  g,  in  Digest  Sup.  Ct  1908.] 

[No.  287.] 

Submitted  October  12,  1916.     Decided  No- 
vember 16,  1916. 

APPEAL  from  the  District  Court  of  the 
United  States  for  Porto  Rico  to  re- 
view a  decree  in  favor  of  complainant  in  a 
suit  for  specific  performance.    Affirmed. 

See  same  case  below,  6  Porto  Rico  Fed. 
Rep.  695. 
The  facts  are  stated  in  the  opinion. 

Mr.  N .  B.  K.  Pettlnglll  submitted  the 
cause  for  appellants: 

In  Porto  Rico  real  estate  of  a  conjufral 
partnership  can  be  alienated  only  with  the 
consent  of  both  husband  and  wife. 

Amadeo  v.  Registrar  of  Property,  8  D.  P. 
R.  134;  Caballero  v.  Registrar  of  Property, 
12  P.  R.  R.  214;  Boscio  v.  Registrar  of 
Property,  14  P.  R.  R.  606;  Vidal  v.  Reg- 
istrar of  Property,  12  P.  R.  R.  198. 

Any  leasehold  right  capable  of  being  re- 
corded in  the  registry  is  real  property. 

Porto  Rico  General  Teleph.  Co.  v.  Regis- 
trar of  Property,  18  P.  R.  R.  823. 

The  contract  being  void,  specific  per- 
formance could  not  be  enforced. 

Hedges  v.  Dixon  County,  150  U.  S.  182, 
192,  37  L.  ed.  1044,  1048,  14  Sup.  Ct.  Rep. 

71. 

Moreover,  the  wording  of  the  Porto  Ricsn 
statute  prohibiting  the  disposal  of  conjugal 
real  estate  without  joint  consent  makes  such 
contract  analogous  to  contracts  for  the  con- 
veyance of  homesteads  by  one  of  the  spouses 
under  the  laws  nf  many  states.  We  believe 
it  is  uniformly  held  that  such  contracts  are 
void,  and,  by  the  weight  of  authority,  that, 
being  void,  they  do  not  even  create  an  es- 
toppel against  the  spouse  who  signs  them. 

Stevens  v.  Parish.  20  Ind.  260,  t'5  Am. 
Dec.  636;  Crlm  v.  Nrlms,  78  Ala.  604; 
Law  V.  Butler,  44  Minn.  482,  9  L,R.A.  866, 
47  N.  W.  63;  Biuner  v.  Bateman,  66  Iowa, 
488,  24  N.  W.  9;  Meek  v.  Langc,  65  Neb. 
786,  91  N.  W.  696;  Hodges  v.  Famham,  4ft 

159 


84-80 


8UPBJSME  COURT  OF  THS  UNITBD  STATES. 


Oct.  TKUC9 


Kan.  777,  31  Pac.  606;  Richards  ▼.  Greene, 
73  111.  54. 

Specific  periormance  is  never  decreed 
against  one  not  a  party  to  the  cimtract. 

Baltzcr  v.  Raleigh  &  A.  Air  Line  R.  Co. 
115  U.  S.  634,  648,  29  L.  ed.  505,  510,  6 
Sup.  Ct.  Rep.  216;  Waterman,  Specific 
Performance,  §  511;  Graybil)  v.  Br*igh.  89 
Va.  899,  21  L.R.A.  133,  37  Am.  St.  Rep. 
894,  17  S.  E.  558;  Bateman  v.  Riley,  72  N. 
J.  Eq.  316,  73  Atl.  1006;  Richmond  v.  Roh- 
inson,  12  Mich.  193. 

Apart  from  all  other  considerations,  ap- 
pellees could  not  be  entitled  to  specific  per- 
formance in  the  absence  of  any  allegation  of 
fraud  or  mistake,  which  could  serve  as  a 
basis  for  the  reformation  of  the  contract  as 
precedent  to  its  specific  enforcement  in  the 
manner  decreed. 

Parish  v.  United  SUtes,  8  Wall.  489,  19 
L.  ed.  472;  American  Colortype  Co.  v. 
Continental  Colortype  Co.  188  U.  S.  104, 
107,  47  L.  ed.  404,  405,  23  Sup.  Ct.  Rep. 
265;  Van  Ness  v.  Washington,  4  Pet.  232, 
282,  7  L.  ed.  842,  859. 

Messrs.  Frederick  S.  Tyler  and  Frank 
Antonsanti  submitted  the  cause  for  appel- 
lees. 

Mr.  Chief  Justice  White  delivered  the 
opinion  of  the  court: 

W.  G.  Henry,  who  had  leased  to  Corne- 
lius B.  Parker,  a  married  man,  two  farms, 
one  Rio  Hondo,  containing  440  acres,  and 
the  other  £1  Quinto,  embracing  278  acres, 
gave  him  in  writing  an  option  to  buy  both 
for  the  sum  of  $37,000  in  gold,  payable  on  or 
before  May  1,  1911.  Shortly  before  that 
period  Parker  and  the  Successors  of  A.  Mon- 
rdlg,  a  sugar  manufacturing  corporation, 
agreed  the  one  to  sell  amd  the  other  to  buy 
a  piece  of  land  "composed  of  about  200 
acres,  a  part  of  the  farm  known  as  El 
Quinto,"  for  $125  per  acre,  and  on  the  same 
day  an  agreement  in  writing  was  executed 
between  the  parties  by  which  Parker  created 
in  favor  of  the  corporation  an  [85 J  ease- 
ment of  way  across  the  farms  El  Quinto  and 
Rio  Hondo  for  the  operation  of  a  private 
railway,  conditioned  on  the  carrying  out  by 
the  corporation  of  the  purchase  of  the  por- 
tion of  El  Quinto  as  stated  in  the  option  con- 
tract. The  option  and  the  agreement  to  buy 
were  both  consummated.  Parker  acquired 
the  two  farms  and  the  corporation  bought 
from  Parker  207  acres  out  of  the  farm  El 
Quinto,  about  70  acres,  therefore,  remain- 
ing in  Parker.  The  formal  deeds  accom- 
plishing this  result  are  not  in  the  record, 
but  as  found  by  the  court  below,  and  not 
disputed,  the  matter  was  so  arranged  that 
the  $25,875  due  for  the  part  of  El  Quinto 
bought  by  the  corporation  was  made  avail- 

leo 


able  for  Parker,  so  that  he  was  enabled  U^ 
use  it  as  part  of  the  $37,000  which,  undsr 
the  option,  he  was  to  pay  for  the  purchase 
of  the  whole  of  El  Quinto  and  Rio  Hondo. 
It  further  appears  from  the  opinion  below 
that  nothing  was  said  in  the  deed  to  tho 
corporation  as  to  the  right  of  way  over  the 
strip  remaining  of  El  Quinto,  but  at  or 
about  the  time  of  the  sale  a  deed  was 
drawn  by  Parker  and  his  wife,  giving  to 
the  corporation  the  right  of  way  over  Rio 
Hondo  as  provided  in  the  option  contract. 

A  controversy  grew  up  between  Parker 
and  the  corporation  as  to  whether  the  cor- 
poration had  not  lost  the  right  to  the  ease- 
ment of  way  over  the  portion  of  El  Quinto 
retained  by  Parker,  and  an  attempt  of  tho 
corporation  to  exercise  the  right  of  servitude 
was  interfered  with.  This  suit  was  then 
brought  by  the  corporation  and  thfe  appeal 
is  prosecuted  to  obtain  the  reversal  of  a 
decree  rendered  in  favor  of  the  corporation, 
directing  the  performance  of  the  contract 
concerning  the  easement,  and  preventing  the 
interference  with  the  enjoyment  of  such 
right. 

It  is  apparent  that  the  substantial  contro- 
versy is  a  very  narrow  one,  concerning  only 
the  easement  of  way  over  the  small  strip  of 
the  farm  El  Quinto  remaining  after  carving 
out  the  portion  of  that  farm  bought  by  the 
corporation.  And  the  contention  as  to  tho 
nonexistence  of  [86]  the  right  of  way  rests 
exclusively  upon  a  challenge  of  the  validity 
of  the  contract  as  to  the  right  between 
Parker  and  the  corporation.  The  contention 
is  that  by  virtue  of  the  purchase  made  from 
Henry  of  the  two  farms,  they  became  oo- 
qu^ia  of.  the  community  existing  between 
Parker  and  his  wife,  and  as,  under  the  Porto 
Rican  law,  the  assent  of  the  wife  to  the 
disposal  of  real  property  of  the  community 
was  essential,  and  such  assent  was  not  giv- 
en by  the  wife,  Parker  alone  having  been  a 
party  to  the  contract  giving  the  corporation 
the  right  of  way,  that  contract  was  absolute- 
ly void  and  not  susceptible  of  being  enforced. 
But  the  error  lies  in  assuming  that  the 
property  was  community  property  when  the 
option  contract  was  made  in  order  to  meas- 
ure its  legality  by  such  erroneous  assump- 
tion. On  the  contrary,  when  the  contract 
made  by  Parker,  giving  the  right  of  way, 
was  entered  into,  the  property  belonged  to 
Henry,  and  the  only  right  possessed  by 
the  community  was  that  which  might  arise 
from  the  exercise  by  Parker,  the  head  and 
master  of  the  community,  of  the  option  to 
buy  from  Henry  which  he,  Parker,  had  pro- 
cured. When,  therefore,  before  the  exercise 
of  the  option,  Parker  agreed  to  the  establish- 
ment of  the  right  of  way  to  attach  to  the 
property  When  bought  under  his  option,  suoh 
contract  modified  to  that  extent  the  right  to 

ISt  V.  8. 


1915. 


UNITED  STATES  ▼.  NEW  YORK  4  P.  R.  S.  S.  00. 


86-88 


hnj  conferred  bj  the  option;  or,  in  other 
words,  submitted  the  exercise  of  the  option 
to  a  limitation  which  followed  the  pn^rty 
into  the  hands  of  the  community  and  dimin- 
ished the  estate  which  it  would  otherwise 
have  been  entitled  to  irader  the  option.  Ob- 
riously  from  this  it  results  that  there  was 
a  legal  obligation  on  the  part  of  the  com- 
munity to  respect  and  give  effect  to  the  right 
of  way,  and  that  its  refusal  to  do  so  gave 
rise  to  the  duty  of  exerting  judicial  power  to 
compel  performance.  And  the  cogency  of 
these  conclusions  becomes  additionally  con- 
vincing when  it  is  considered  that  there  is 
DO  contention  as  to  wrong  against  the  com- 
munity resulting  from  the  contract  which 
gave  to  the  [87]  corporation  a  right  to  buy 
a  part  of  the  property  covered  by  the  option 
held  by  Parker,  especially  when,  from  the 
surrounding  circumstances,  it  is  clearly  to 
be  deduced  that  the  agreement  to  give  to  the 
corporation  the  right  of  way  was  one  of  the 
considerations  by  which  it  was  led  to  con- 
sent to  become  a  purchaser  of  part  of  the 
property  which  the  option  embraced,  there- 
by in  part,  at  least,  affording  the  means  by 
which  Parker  was  enabled  to  acquire  irader 
the  option  the  property  which  remained. 
The  claim  now  made  thus  reduces  itself  to 
the  contention  that  the  right  of  the  conunun- 
itj  to  purchase  under  the  option  must  be  by 
it  enjoyed  free  from  the  obligations  insepar- 
ably resulting  from  its  exertion;  or,  in  an- 
other aspect,  that  the  community,  having 
secured  through  its  contract  with  the  cor- 
poration the  means  to  enable  it  to  pay  for 
the  property  which  it  acquired,  can  r^in 
the  ])ropcrty  free  from  the  obligation  in- 
curred in  favor  of  the  corporation. 

There  is  a  contention  that  the  right  to 
enforce  the  agreement  to  grant  the  servitude 
of  way  is  barred  by  the  limitation  provided 
in  §  4481  of  the  Porto  Rican  Code  of  1^13 
(§  1375  of  the  previous  Code).  But,  on  the 
lace  of  the  provision  relied  upon,  it  is 
plainly  applicable  only  to  actions  for  lesion 
in  caaes  of  sale  embraced  by  §  4480  of  the 
same  Code,  and  has  therefore  no  possible  re- 
lation to  the  subject  before  us.  So,  also, 
there  is  a  contention  that  the  decree  below 
was  too  broad  since  it  enforced  a  perpetual 
casement  instead  of  one  depending  upon  the 
ccmtinued  use  of  the  property  for  the  pur- 
poses for  which  the  easement  was  created. 
But  we  think  this  contention  is  also  wholly 
without  merit,  because  the  decree,  when 
rightly  interpreted,  is  not  susceptible  of  the 
extreme  construction  placed  upon  it. 

Affirmed. 
60  L.  ed.  11 


[88]    UNITED   STATES   OF   AMERICA, 

Plff .  in  Err.^ 

NEW  YORK  4  PORTO  RICO  STEAMSHIP 

COMPANY. 

(See  S.  C.  Reporter's  ed.  88-03.) 

United  States  —  contracts  —  formal 
requisites  —  Miforoement  Against 
private  party. 

The  failure  to  reduce  a  contract  made 
by  the  authority  of  the  Secretary  of  the 
Navy  on  behalf  of  the  government  to  writ- 
ing ^'signed  by  the  contracting  parties,  wiUi 
their  names  at  the  end  thereof,'^  as  required 
by  U.  8.  Rev.  Stat  §  3744,  Comp.  Stat.  1913, 
§  6895,  does  not  preclude  the  enforcement 
of  such  contract  by  the  government  against 
the  other  par^  thereto,  although  such  non- 
compliance with  the  statute  renders  the 
contract  unenforceable  against  tiie  govern- 
ment. 

[  For  'other  cases,  see  United  States,  VI.  b.  in 
Digest  Sup.   Ct.  1908.] 

[No.  44.] 

Argued  November   3,   1015.     Decided  No- 
vember 15, 1916. 

IN  ERROR  to  the  United  States  Circuit 
Court  of  Appeals  for  the  Second  Circuit 
to  review  a  judgment  which,  on  a  second 
writ  of  error,  affirmed  a  judgment  of  the 
District  Court  for  the  Southern  District  of 
New  York  in  favor  of  defendant  in  an  ac- 
tion by  the  United  States  upon  a  public 
contract.    Reversed. 

See  same  case  below,  on  first  writ  of 
error,  124  C.  C.  A.  325,  206  Fed.  443;  on 
second  writ  of  error,  126  C.  C.  A.  668,  209 
Fed.  1007. 

The  facts  are  stated  in  the  opinion. 

Solicitor  General  DaTis  argued  the  cause, 
and,  with  Mr.  Robert  Szold,  filed  a  brief 
for  plaintiff  in  error: 

U.  S.  Rev.  SUt.  S  3744,  Comp.  SUt.  1913, 
§  6895,  is  no  bar  to  a  suit  by  the  government 
on  executory  parol  contracts. 

1.  The  statute  does  not  render  the  con- 
tract illegal,  but  only  un^iforceable.  It 
affects  not  the  validity  of  the  contract,  but 
the  remedy  thereon. 

CUrk  V.  United  States,  96  U.  S.  639,  24 
L.  ed.  518;  St  Louis  Hay  &  Grain  Co.  v. 
United  SUtes,  191  U.  S.  169,  48  L.  ed.  130, 
24  Sup.  Ct.  Rep.  47;  United  States  ▼.  An- 
drews, 207  U.  S.  229,  52  L.  ed.  185,  28 
Sup.  Ct.  Rep.  100;  Browne,  Stat.  Fr.  6th 
ed.  S  115a. 

2.  Section  3744,  Revised  Statutes,  is  sole- 
ly for  the  protection  of  the  government. 

Clark  ▼.  United  States,  95  U.  S.  539,  24 
L.  ed.  518;  Dollar  Sav.  Bank  ▼.  United 
States^  19  WalL  227»  22  L.  ed.  80;  United 


181s 


90,  01 


8UPH£M£  COURT  OF  THE  UNITED  STATES. 


Oct.  Temm, 


SUtef  T.  Verdier,  164  U.  S.  213,  41  L.  ed. 
407,  17  Sup.  Gt.  Rep.  42. 

3.  The  government  may  waive  compliance 
with  statutory  forma  required  for  its  pro- 
tection. 

Bailey  v.  United  States,  109  U.  S.  432, 
27  L.  ed.  088,  3  Sup.  Ct.  Rep.  272;  Mc- 
Qowan  v.  Parish,  237  U.  S.  286,  294,  295, 
59  L.  ed.  955,  962,  963,  35  Sup.  Ct.  Rep. 
543. 

4.  Since  the  government  is  not  expressly 
named  in  the  statutes,  its  remedy  by  suit  on 
a  valid  common-law  contract  is  not  barred. 
The  government  may  take  the  benefit  of  a 
statute,  but  it  is  not  bound  thereby  unless 
expressly  named. 

Stanley  v.  Schwalby,  147  U.  S.  508,  514, 
515,  517,  37  L.  ed.  259,  262,  263,  13  Sup. 
Ct  Rep.  418,  162  U.  S.  255,  40  L.  ed.  960, 
16  Sup.  Ct.  Rep.  754. 

The  signed  offer  and  acceptance  in  writing 
constitute  compliance  with  the  statute. 

Adams  v.  United  States,  1  Ct.  CI.  192; 
Johnston  v.  United  States,  41  Ct  CI.  76. 

The  statute  does  not  apply  to  executed 
contracts,  and  is  no  bar  to  suit  on  a  parol 
contract  after  performance  by  plaintiff. 

St.  Louis  Hay  k  Grain  Co.  v.  United 
States,  101  U.  S.  159,  163,  48  L.  ed.  130, 
132,  24  Sup.  Ct  Rep.  47;  United  States  v. 
Andrews,  207  U.  S.  229,  52  L.  ed.  185,  28 
Sup.  Ct.  Rep.  100. 

Mr.  James  H.  Hayden  argued  the  cause, 
and,  with  Messrs.  Ray  Rood  Allen  and  Nor- 
man B.  Beecher,  filed  a  brief  for  defend- 
ant in  error: 

Soon  after  the  passage  of  the  section  in 
question  it  was  held  to  be  and  was  enforced 
as  a  statute  of  frauds,  operating  upon  the 
transactions  themselves  rather  than  upon 
the  parties  to  them,  and  rendering  absolute- 
ly void  and  unenforceable  all  dealings  in 
the  nature  of  agreements  made  otherwise 
than  in  conformity  with  the  procedure  de- 
scribed in  the  statute.  This  interpretation 
has  been  adhered  to  consistently  during  the 
period  of  more  than  fifty  years. 

Clark  v.  United  States,  95  U.  S.  539,  24 
L.  ed.  518;  South  Boston  Iron  Co.  v.  United 
States,  118  U.  S.  37,  30  L.  ed.  69,  6  Sup. 
Ct  Rep.  928;  Monroe  v.  United  States,  184 
U.  S.  524,  46  L.  ed.  670,  22  Sup.  Ct  Rep. 
444;  St  Louis  Hay  &  Grain  Co.  v.  United 
States,  191  U.  S.  159,  48  U  ed.  130,  24 
Sup.  Ct  Rep.  47;  Henderson  v.  United 
States,  4  Ct.  CI.  81;  Danolds  v.  United 
States,  5  Ct.  CI.  65;  McLaughlin  v. 
United  States,  37  Ct  CI.  185;  Johnston  v. 
United  States,  41  Ct  CI.  76;  Gillespie  v. 
United  States,  47  Ct.  CI.  310. 

This  is  no  more  than  an  application  of 
the  principle  stated  long  ago  in  the  case  of 
Russell  V.  De  Grand,  15  Mass.  35.  The 
162 


rule  of  law  is  of  universal  operation  thai 
none  shall,  by  aid  of  a  court  of  justice,  ob- 
tain the  fruits  of  an  unlawful  bargain. 

The  effect  that  the  courts  have  given  to 
U.  S.  Rev.  Stat  §  3744,  Comp.  Stat  1918, 
S  6895,  in  this  case,  is  in  harmony  with  thai 
given  other  statutes  of  the  same  nature. 

Richmond  Standard  Steel  Spike  &  Iron 
Co.  V.  Chesterfield  Coal  Co.  87  C.  C.  A. 
636,  160  Fed.  832. 

Mr.  Justice  Holmes  delivered  the  opinion 
of  the  court: 

lliis  is  a  suit  by  the  United  States  to 
recover  the  increased  cost  of  transportation 
for  coal,  above  a  price  that  the  defendant 
had  agreed  to  accept  for  the  service;  the 
latter  having  notified  the  government  thai 
it  would  not  furnish  the  steamers  agreed. 
There  is  no  dispute  as  to  the  facts.  On  No- 
vember 9,  1909,  the  plaintiff  requested  in 
writing  that  the  defendant  make  a  tender 
for  the  transportation  of  not  less  than  8,000 
tons  of  coal  from  certain  Atlantic  ports  at 
the  option  of  the  plaintiff  to  Mare  island 
or  San  Francisco,  with  stipulations  as  to 
[91]  time.  On  November  13  the  defendant 
submitted  an  offer  which  the  plaintiff  ac- 
cepted by  telegraph  on  the  same  day.  On 
November  15  the  defendant  wrote,  acknowl- 
edging the  telegram,  and  saying  that  it 
could  advise  in  due  course  what  steamers  it 
would  tender.  There  was  further  correspond- 
ence on  the  footing  of  a  mutual  contract,  but 
on  December  14,  the  defendant's  attor- 
ney wrote,  stating  that  it  believed  that 
a  combination  had  been  made  with  in- 
tent *'to  cause  it  to  make  default  under 
its  ^engagement  to  your  Department  or 
else  to  suffer  heavy  loss,''  and  request- 
ing the  plaintiff  to  procure  the  trans- 
portation if  it  could  be  done  at  reasonable 
cost,  letting  the  writer  know  the  terms  of 
any  contract  before  it  was  closed.  The 
plaintiff  thereupon  got  the  transportation 
elsewhere.  The  declaration  is  in  three 
counts;  two  upon  the  contract  and  a  third 
for  money  paid  at  the  defendant's  request 
At  the  first  trial  the  plaintiff  had  judsrment 
197  Fed.  995.  This  judgment  was  reversed 
b}'  the  circuit  court  of  appeals.  124  C.  C.  A. 
325,  206  Fed.  443.  At  a  second  trial  on 
this  same  record  both  parties  moved  that 
a  verdict  be  directed,  and  a  verdict  was  di- 
rected for  the  defendant.  The  judgment  waa 
afiirmcd  by  the  circuit  court  of  appeals. 
126  C.  C.  A.  668,  209  Fed.  1007. 

The  only  matter  for  our  consideration  ia 
whether  the  court  below  was  right  in  ruling 
as  matter  of  law  that  there  was  no  binding 
contract,  and  therefore  we  may  lay  on  one 
side  some  details  that  were  dwelt  upon  by 
the  defendant,  but  that  do  not  affect  thi» 

230   U.  S. 


1915. 


GSELL  T.  INSULAB  OQLLECTOR  OF  CUSTOMS. 


01-99 


qnestion.  Th«  ground  of  the  defense  is  ReT. 
SUt.  §  3744,  Comp.  Stat.  1913»  i  6895.  By 
this  section  it  is  made  the  duty  of  the  Sec- 
retaries of  War»  the  Navy,  and  the  Interior 
to  cause  every  contract  made  by  their  au- 
thority on  behalf  of  the  goYemment  '^  be 
reduced  to  writing,  and  signed  by  the  con- 
tracting parties  with  their  names  at  the 
end  thereof;"  all  the  copies  and  papers  in 
relation  to  the  same  to  be  attached  together 
by  a  ribbon  and  seal,  etc.  A  formal  propos- 
al, varying^,  the  defendant  says,  from  that 
[02]  which  was  accepted  in  the  letters,  was 
tent  to  the  defendant,  and  received  by  it  on 
December  11,  but  never  was  signed,  and  the 
defendant  contends  that,  however  it  might  be 
otherwise,  the  statute  makes  the  informal 
agreement  by  correspondence  void. 

The  statute  does  not  address  itself  in 
terms  to  the  effect  of  the  form  upon  the  lia- 
bility of  the  parties,  like  the  statute  of 
frauds.  Whatever  effect  it  has  in  that  way 
is  not  a  matter  of  interpretation  in  a  strict 
tense,  but  is  implied.  The  extent  of  the  im- 
plication is  to  be  gathered  from  the  purpose 
of  the  section  and  sueh  other  considerations 
as  may  give  us  light.  The  section  originally 
was  part  of  the  act  of  June  2,  1862,  chap. 
93,  12  Stat,  at  L.  411,  Comp.  Stat..  1913, 
I  0895,  and  its  purpose  is  manifested  by 
the  scope  of  the  act  and  its  title.  It  is 
called  "An  act  to  Prevent  and  Punish  Fraud 
on  the  Part  of  OflUcers  Intrusted  with  Mak- 
ing of  Contracts  for  the  Government,"  and 
this  was  recognized  as  the  purpose  in  Clark 
V.  United  SUtes,  95  U.  S.  539,  24  L.  ed. 
518.  In  that  case  some  of  ^e  justices 
thought  that  the  decision  went  too  far  in 
treating  the  section  as  a  statute  of  frauds 
rria  in  favor  of  the  United  States;  and 
vhile  it  is  established  that  a  contract  not 
complying  with  the  statute  cannot  be  en- 
forced against  the  government,  it  never  has 
lieen  decided  that  such  a  contract  cannot  be 
enforced  against  the  other  party.  The  pre- 
vailing opinion  cannot  be  taken  to  signify 
that  the  informal  contract  is  illegal,  since  it 
went  on  to  permit  a  recovery  upon  a  quiMH' 
turn  ralchat  when  the  undertaking  had  been 
performed  by  a  claimant  against  the  United 
States.  United  States  v.  Andrews,  207  U.  S. 
229,  243,  52  L.  ed.  185,  191,  28  Sup.  Ct.  Rep. 
100.  Of  course  the  statute  does  not  mean 
that  its  maker,  the  government,  one  of  the 
ostensible  parties,  is  guilty  of  unlawful  con- 
duct, or  that  the  other  party  Is  committing 
a  wrong  in  making  preliminary  arrange- 
ments, if  later  the  Secretary  of  the  Navy 
does  not  do  what  the  act  makes  it  his  duty 
to  do. 

There  is  no  principle  of  mutuality  appli- 
cable to  a  case  [03]  like  this,  any  more  than 
there  necessarily  is  in  a  statute  requiring  a 
writing  signed  by  the  party  sought  to  be 
•0  L.  ed. 


charged.  Tlie  United  States  needs  the  pro- 
tection of  publicity,  form,  regularity  of  re- 
turns and  affidavit  (Rev.  Stat.  i§  3709» 
3718-8724,  3745-3747,  Comp.  Stat.  1913,  {§ 
6832,  6862,  6863,  6865,  6869,  6872-6874, 
6897-6899)  in  order  to  prevent  possible 
frauds  upon  it  by  officers.  A  private  per- 
son needs  no  such  protection  against  a  writ- 
ten undertaking  signed  by  himself.  The 
duty  is  imposed  upon  the  officers  of  the  gov- 
ernment, not  upon  him.  We  see  no  reason 
for  extending  the  implication  of  the  act 
beyond  the  evil  that  it  seeks  to  prevent. 
Even  when  a  statute  in  so  many  words  de- 
clares a  transaction  void  for  want  of  cert4in 
forms,  the  party  for  whose  protection  the 
requirement  is  made  often  may  waive  it, 
"void*'  being  held  to  mean  only  voidable  at 
the  party's  choice. 
Judgment  reversed. 


CARLOS  GSELL,  Plff.  in  Err., 

V. 

INSULAR  COLLECTOR  OP  CUSTOMS. 
(See  S.  C.  Reporter's  ed.  93-98.) 

Error  to  Philippine  supreme  court  — 
case  InvolTing  Federal  statute. 

1.  A  decision  as  to  the  proper  classifi- 
cation under  the  Philippine  tarifif  act  of 
August  5, 1909  (36  Stat,  at  L.  130,  chap.  8), 
of  a  commodity  imported  into  the  Philip- 
pine Islands,  involves  a  statute  of  the  Unit- 
ed States,  within  the  meaning  of  the  act 
of  July  1,  1902  (  32  Stat,  at  L  691,  chap. 
1369,  Comp.  Stat.  1913,  f  1225),  defining 
the  appellate  Jurisdiction  of  the  Supreme 
Court  of  the  United  States  over  the  Phil- 
ippine Islands. 

[For  other  cases,  see  Appeal  and  Error,  III.  d. 
9.  In  Digest  Sop.  Ct.  1908.] 

Appeal  —  mode  of  review  —  revenue 


2.  A  judgment  of  the  supreme  oourt  of 
the  Philippine  Islands  which  affirmed  a  judg- 
ment of  the  court  of  first  instance  revers- 
ing a  decision  of  the  insular  collector  as  to 
the  proper  classification,  under  the  Philip* 
pine  Uriff  act  of  August  5,  1909  (36  Stat, 
at  L.  130,  chap.  8),  of  a  certain  commodity 
imported  into  the  Philippine  Islands,  can 
be  reviewed  in  the  Federal  Supreme  Court 
only  by  appeal,  under  the  act  of  July  1, 
1902  (32  Stat,  at  L.  691,  chap.  1369,  Comp. 
SUt.  1913,  S  1225),  providing  that  the 
judgments  and  decrees  of  the  former  court 
mav  be  reviewed  '*in  the  same  manner, 
under   the   same   regulations, .  and   by   the 

Note.— On  appellate  jurisdiction  of  Fed« 
eral  Supreme  (>>urt  over  supreme  oourt  of 
Philippme  Islands — see  note  to  Martinez  v. 
International  Banking  Corp.  55  L.  ed.  U.  8» 
438.  ^ 

On  distinction  between  appeal  and  writ 
of  error — see  note  to  Miners  ^ank  v.  Iowa, 
13  L.  ed.  U.  S.  867. 

16S^ 


8UPBEME  COURT  OF  THE  UNITED  STATES. 


Oct.  TkBK. 


same  procedure,  as  far  as  applicable,  as  the 
final  judgments  and  decrees  of  the  circuit 
courts  of  the  United  States." 
(For  other  cases,  see  Appeal  and  Error,  II.  b, 
in  Digest  Sup.  Ct.  1908.] 

[No.  31.] 

Submitted  May  U,  1915.    Decided  Novem- 
ber 16,  1915. 

IN  ERROR  to  the  Supreme  Court  of  the 
Philippine  Islands  to  review  a  judgment 
which  affirmed  a  judgment  of  the  Court  of 
First  Instance  of  Manila,  reversing  a  deci- 
sion of  the  insular  collector  as  to  the  prop- 
er classification  under  the  Philippine  tariff 
act  of  a  commodity  imported  into  the  Phil- 
ippine Islands.  Dismissed  for  want  of  ju- 
risdiction. 

See  same  case  below,  24  Philippine,  369. 

The  facts  are  stated  in  the  opinion. 

Mr.  Harry  W.  Van  Dyke  submitted  the 
cause  for  plaintiff  in  error. 

Mr.  S.  T.  Ansell  submitted  the  cause  for 
defendant  in  error.  Mr.  L.  W.  Call  was  on 
the  brief. 

Mr.  Justice  Day  delivered  the  opinion  of 
the  court: 

This  case  comes  to  this  court  on  a  writ 
of  error  to  the  supreme  court  of  the  Phil- 
ippine Islands,  the  purpose  of  which  is  to 
review  a  judgment  of  that  court,  affirming 
a  judgment  of  the  court  of  first  instance  of 
Manila,  which  reversed  a  decision  of  the 
insular  collector  as  to  the  proper  classifica- 
tion under  the  tariff  act  of  a  certain  com- 
modity, known  as  wool  noils,  imported  into 
the  Philippine  Islands.  The  contention  of 
Importer  is  that  the  material  is  admissible 
under  the  free  list.  The  decision  was  that 
such  material  properly  classified  was  sub- 
ject to  a  duty  of  10  per  cent  ad  valorem.  At 
the  last  term  of  this  court,  this  case  was 
submitted  for  consideration,  and  an  order 
was  [95]  entered,  requesting  that  briefs  be 
filed  before  the  present  term  on  the  question 
of  the  jurisdiction  of  this  court  to  review 
the  decision  of  the  supreme  court  of  the 
Philippine  Islands,  and,  if  reviewable, 
whether  by  writ  of  error  or  appeal.. 

The  manner  of  review  in  this  court  of 
the  judgments  of  the  supreme  court  of  the 
Philippine  Islands  is  regulated  by  act  of 
Congress  of  July  1st,  1902  (32  Stat,  at  L. 
691,  chap.  1369,  Comp.  Stat  1913,  f  1225), 
•vhich  provides: 

-"That  the  Supreme  Court  of  the  United 
States  shall  have  jurisdiction  to  review,  re- 
vise, reverse,  modify,  or  affirm  the  final 
judgments  and  decrees  of  the  supreme  court 
of  the  Philippine  Islands  in  all  actions, 
cases,  causes,  and  proceedings  now  pendiag 


therein  or  hereafter  determined  thereby  in 
which  the  Constitution  or  any  statute, 
treaty,  title,  right,  or  privilege  of  the  United 
States  is  involved,  or  in  causes  in  which 
the  value  in  controversy  exceeds  twenty- 
five  thousand  dollars  or  in  which  the  title 
or  possession  of  real  estate  exceeding  in 
value  the  sum  of  twenty-five  thousand 
dollars  to  be  ascertained  by  the  oath 
of  either  party  or  of  other  competent 
witnesses,  is  involved  or  brought  in  ques- 
tion; and  such  final  judgments  or  decrees 
may  and  can  be  reviewed,  revised,  reversed, 
modified,  or  affirmed  by  said  Supreme  Court 
of  the  United  States  on  appeal  or  writ  of 
error  by  the  party  aggrieved,  in  the  same 
manner,  under  the  same  regulations,  and  by 
the  same  procedure,  as  far  as  applicahle, 
as  the  final  judgments  and  decrees  of  the 
circuit  courts  of  the  United  States." 

This  section  gives  this  court  jurisdiction 
to  review,  revise,  reverse,  modify,  and  af- 
firm the  final  judgments  or  decrees  of  the 
supreme  court  of  the  Philippine  Islands, 
among  others,  in  actions  in  which  a  statute 
of  the  United  States  is  involved.  The  Phil- 
ippine tariff  act  (36  Stat,  at  L.  130,  chap. 
8),  which  is  under  consideration  in  this 
case,  is  a  statute  of  the  United  States,  and 
the  decision  [06]  as  to  the  classification  of 
the  merchandise  in  question  involves  a  stat- 
ute of  the  United  States,  and  the  case  is 
properly  brought  for  review  into  this  court. 

As  to  the  manner  of  review,  this  statuto 
is  distinct,  and  provides  that  such  final 
judgments  and  decrees  of  the  supreme  court 
of  the  Philippine  Islands  can  be  reviewed, 
revised,  reversed,  modified,  or  affirmed  by 
this  court  on  appeal  or  writ  of  error  by 
the  party  aggrieved,  in  the  same  manner, 
under  the  same  regulations,  and  by  the 
same  procedure,  as  far  as  applicable,  as 
the  final  judgments  and  decrees  of  the  cir- 
cuit courts  of  the  United  States.  This  pro- 
vision as  to  the  manner  of  review  is  an 
essential  part  of  the  act,  and  in  considering 
it,  this  court  held,  in  Fisher  v.  Baker,  203 
U.  S.  174,  51  L.  ed.  142,  27  Sup.  Ct.  Rep. 
135,  7  Ann.  Gas.  1018, — ^where  an  attempt 
was  made  to  review  an  order  in  a  proceed- 
ing in  habeas  corpus  by  writ  of  error,— 
that,  inasmuch  as  the  final  order  in  sueh 
cases  in  the  circuit  and  district  courts  of 
the  United  States  can  only  be  reviewed  by 
appeal,  the  same  rule  governs  procedure  to 
review  a  final  order  of  the  supreme  court 
of  the  Philippine  Islands,  and  the  writ  of 
error  was  accordingly  dismissed.  See,  in 
this  connection,  De  la  Rama  v.  De  la  Rama, 
201  U.  S.  303,  60  L.  ed.  705,  26  Sup.  Ct. 
Rep.  485;  Behn  v.  Campbell,  205  U.  S.  403, 
51  L.  ed.  857,  27  Sup.  Ct.  Rep.  502. 

We  therefore  proceed  to  inquire  as  to  the 
manner  of  review  of  orders  of  this  char- 

289  u.  a. 


1916. 


bouihj!;hn  r.  co.  t.  campbbll. 


0^99 


acter,  in  revenue  eases  in  the  United  States, 
under  the  statutes  and  regulations  govern- 
ing such  proceedings,  when  taken  from  the 
final  judgments  and  decrees  of  the  circuit 
courts  of  the  United  States.  Before  the 
act  of  June  10,  1890  (26  Stat,  at  L.  131, 
chap.  407),  there  was  a  right  of  revie\V  of 
revenue  cases  by  appeal  from  the  circuit 
courts  of  the  United  States  to  this  court 
(Rev.  Stat  $699).  By  the  act  of  June 
10,  1890,  an  appeal  was  given  from  the  deci- 
sion of  the  board  of  appraisers  as  to  the 
construction  of  the' law  and  the  facts,  re- 
specting the  classification  of  merchandise, 
and  the  rate  of  duty  imposed,  to  the  cir- 
cuit courts  of  the  United  States.  The  deci- 
sion of  the  circuit  court  was  [97]  final  un- 
less the  court  should  be  of  opinion  that  the 
question  involved  was  of  sufficient  impor* 
tance  to  require  a  review  by  this  court,  in 
which  case  an  appeal  was  allowed  from  the 
circuit  court  to  this  court.  In  this  state  of 
the  law,  the  court  of  appeals  act  was  passed 
March  3,  1891  (26  Stat,  at  L.  826,  chap. 
517),  in  which  the  judgment  of  the  court 
of  appeals  was  made  final,  among  other  in- 
stances, in  revenue  cases.  It  was  held  that 
that  act,  read  in  oonneetion  with  former 
legislation,  gave  the  circuit  court  of  appeals 
jurisdiction  to  review  judgments  of  the 
circuit  court  in  revenue  cases.  Louisville 
Public  Warehouse  Co.  v.  Collector  of  Cus- 
toms, 1  C.  C.  A.  371,  6  U.  S.  App.  63,  49 
Fed.  661,  circuit  court  of  appeals,  sixth  cir- 
cuit, opinion  by  Judge,  afterwards  Mr. 
Justice,  Jackson.  The  remedy  must  be 
sought  by  appeal,  and  not  by  writ  of  er- 
ror. United  States  v.  Diamond  Match  Co. 
53  C.  C.  A.  90,  116  Fed.  288,  sixth  circuit 
In  1908,  the  revenue  act  was  amended  (35 
Stat,  at  I^  403,  chap.  205),  so  that  the  deci- 
sion of  the  circuit  court  was  made  final  in 
nieh  revenue  cases,  unless  the  court  cer- 
tified that  the  question  was  of  enough  im- 
portance to  go  to  the  court  of  appeals,  in 
which  case  there  was  a  right  to  review  the 
judgment  of  the  court  of  appeals  by  writ 
of  certiorari  in  this  court.  The  customs 
court  act  gives  jurisdiction  to  review  the 
decisions  of  the  board  of  general  appraisers 
by  appeal  This  act  has  no  application  to 
the  Philippine  Islands.  From  this  it  may 
be  seen  that  the  procedure  for  review  in 
the  circuit  courts  of  the  United  States,  as 
well  as  in  the  circuit  courts  of  appeal  and 
in  this  court,  has  at  all  times  been  by  vray 
of  appeal,  and  not  by  writ  of  error.  United 
States  V.  Klingenberg,  163  U.  S.  93,  103, 
104,  38  L.  ed.  647,  661,  14  Sup.  Ct.  Rep. 
790. 

Turning  now  to  the  procedure  in  the 
Philippine  Islands  (Acts  of  Philippine  Com- 
mission, No.  864),  we  find  that  the  deci- 
sion of  the  insular  collector  may  be 
60  L.  ed. 


reviewed  in  a  oourt  of  first  instance,  and  aft- 
erwards in  the  supreme  court  of  the  Philip- 
pine Islands,  as  was  done  in  the  present 
case.  In  the  supreme  court,  while  that 
court  has  the  [08]  case  upon  so-called  bills 
of  exception,  the  whole  record  is  certified 
and  the  case  is  considered,  as  the  opinion 
shows,  upon  the  facts  and  the  law  applicable 
thereto.  Thus  the  proceeding  in  the  supreme 
court  is  practically  an  appeal.  In  the 
opinion  and  judgment  in  that  court  it  is 
styled  an  appeal.  The  right  to  review  the 
judgment  in  this  oourt  is,  as  we  have  said, 
controlled  by  the  Federal  act  of  1902,  and 
is  in  the  same  manner,  i,  e.,  by  app^  or 
writ  of  error,  and  with  the  same  procedure, 
so  far  as  applicable,  as  is  applied  to  final 
judgments  and  decrees  of  the  circuit  courts 
of  the  United  States.  From  what  has  been 
said,  it  is  apparent  that  such  review  from 
the  orders  of  the  circuit  courts  of  the  Unit- 
ed States  was  uniformly  by  appeal,  and  not 
by  writ  of  error.  Nor  is  the  different 
method  of  review  a  mere  difference  in  form 
and  procedure  only.  Upon  appeal,  as  the 
statutes  already  referred  to  and  the  deci- 
sions of  this  court  show,  it  was  intended  to 
take  before  the  reviewing  court  the  ques- 
tions of  law  and  fact  involved,  upon  all 
competent  evidence  taken  and  heard  before 
the  board  of  general  appraisers  and  before 
the  circuit  court.  Such  was  the  uniform 
method  and  purpose  of  review,  under  all 
the  statutes  and  procedure,  which,  so  far 
as  applicable,  are  to  be  read  into  the  Philip- 
pine act,  and  such  is  still  the  policy  of  the 
Federal  statutes  in  permitting  review  of 
the  decisions  of  the  boards  of  general  ap- 
praisers*in  the  United  States  by  appeal  to 
the  court  of  customs  appeal.  By  writ  of 
error  the  review  is  limited  to  questions 
of  law, — a  method  of  procedure  inapplicable 
to  customs  cases,  where  the  facts  must  be 
considered  in  order  to  determine  the  proper 
classification  of  the  merchandise  and  the 
duty  to  which  it  is  subject. 

We  reach  the  conclusion  that  the  writ  of 
error,  by  which  it  is  sought  to  review  the 
judgment  of  the  Supreme  Court  of  the 
Philippine  Islands  in  this  case,  should  be 
dismissed  for  want  of  jiu'isdiction^  and  it  is 
so  ordered. 

Dismissed. 


[99]  SOUTHERN  RAILWAY  COMPANY, 

Plff.  in  Err., 

V. 

SAMUEL  J.  CAMPBELL. 
(See  S.  C.  Reporter's  ed.  99-103.) 

Carriers  —  mileage  books  —  condition 
—  forfeiture. 

The  presentation  of  a  mileage  book  or 

165 


101-103 


6UPREMB  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


mileage  exchange  ticket  by  the  original  pur- 
chaser for  the  transportation  of  another 
person  who  is  accompanying  him  on  the 
journey  does  not  justify  a  forfeiture  of 
the  mileage  book  under  a  tariff  rule  which 

Erovides  for  such  forfeiture  if  a  mileage 
ook  or  ticket  ''be  presented  to  an  agent  or 
conductor  by  any  other  than  the  original 
purchaser." 

LFor   other   cases,   see   Carriers,   II.   a,   8,   In 
Digest  Sup.  Ct.  1008.1 

[No.  63.] 

Argued   November   4,    1915.     Decided   No- 
vember 15,  1015. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  South  Carolina  to  review  a 
judgment  which  affirmed  a  judgment  of  the 
Court  of  Common  Pleas  for  Greenville 
County,  in  that  state,  in  favor  of  plaintiff 
in  an  action  to  recover  damages  from  a 
carrier  for  the  alleged  wrongful  forfeiture 
of  plaintiff's  mileage  book.    Affirmed. 

See  same  case  below,  94  S.  C.  95,  77  8. 
E.  745. 

The  facts  are  stated  in  the  opinion. 

Mr.  John  K.  Graves  argued  the  cause, 
and,  with  Mr.  L.  E.  Jeffries  filed  a  brief  for 
plaintiff  in  error. 

Mr.  John  G.  Capers  argued  the  cause, 
and,  with  Mr.  William  G.  Sirrine,  filed  a 
brief  for  defendant  in  error. 

[101]  Mr.  Justice  Hughes  delivered  the 
opinion  of  the  court: 

This  suit  was  brought  by  Samuel  J.  Camp- 
bell against  the  Southern  Railway  Company 
to  recover  damages  for  the  wrongful  for- 
feiture of  the  plaintiff's  mileage  book.  The 
company  sought  to  justify  the  forfeiture  un- 
der it  tariff  regulations,  which  had  been 
duly  filed  with  the  Interstate  Commerce 
Commission.  The  defense  was  overruled  by 
the  state  court.    94  S.  C.  95,  77  S.  E.  745. 

The  admitted  facts  are  these:  On  No- 
vember 20,  1910,  Mr.  Campbell,  being  the 
owner  of  a  thousand-mile  coupon  book,  or 
mileage  book,  purchased  another  mileage 
book  of  the  same  sort  from  the  agent  of 
the  Southern  Railway  Company  at  Greens- 
boro, North  Carolina,  and  thereupon  pre- 
sented both  books  to  the  agent  of  the  com- 
pany and  obtained,  in  exchange  for  coupons, 
two  "mileage  exchange  tickets"  to  Green- 
ville, South  Carolina.  With  these  tickets 
he  and  his  wife  traveled  to  Greenville,  the 
tickets  being  accepted  by  one  of  the  com- 
pany's collectors.  A  few  days  later  he  pre- 
sented his  mileage  books  to  the  agent  of 
the  company  at  Greenville  and  obtained,  for 
the  proper  number  of  coupons,  two  ex- 
change tickets  to  Greensboro.  When  he  pre- 
sented these  tickets  for  the  transportation 

lee 


of  himself  and  his  wife,  the  ticket  collector 
asked  if  he  had  mileage  books,  and  required 
him  to  produce  them.  Upon  looking  at  the 
books,  the  ticket  collector  returned  one  of 
them  to  Mr.  Campbell,  but  forfeited  the 
other,  which  contained  unused  coupons  for 
600  miles.  The  exchange  ticket,  which  had 
been  issued  for  the  coupons  taken  from  the 
book,  was  also  forfeited,  and  the  ticket  col- 
lector demanded  and  received  payment  in 
cash  of  the  fare  for  the  plaintiff's  wife. 

The  tariff  regulations  and  conditions 
which  related  to  mileage  books,  or  mileage 
tickets,  and  were  filed  with  the  Interstate 
Commerce  Commission,  were  as  follows: 

"Exchange  requirement. -^Mileage  cou- 
pons (except  as  [102]  noted  below)  will 
not  be  honored  for  passage  on  trains  or 
steamers  or  in  checking  baggage  (except 
from  nonagency  staticms  and  agency  stations 
not  open  for  the  sale  of  tickets),  but  must 
be  presented  at  ticket  office  and  there  ex- 
changed for  continuous  passage  ticket, 
which  continuous  passage  ticket  will  be 
honored  in  checking  baggage  and  for  pas- 
sage when  presented  in  connection  with  the 
mileage  ticket. 

"Non-transferable. — If  a  mileage  ticket  or 
ticket  issued  in  exchange  for  coupons  there- 
from be  presented  to  an  agent  or  conductor 
by  any  other  than  the  original  purchaser,  it 
will  not  be  honored,  but  will  be  forfeited, 
and  any  agent  or  conductor  of  any  line 
over  which  it  reads  shall  have  the  right  to 
take  up  and  cancel  such  ticket  or  tickets." 

A  jury  was  waived,  and  the  case  was 
submitted  to  the  trial  judge  upon  a  stipula- 
tion that  if  judgment  went  for  the  plain- 
tiff he  should  recover  the  value  of  the 
mileage  book  ($12)  and  $25  damages.  Judg- 
ment was  entered  accordingly. 

We  are  not  concerned  with  the  reason- 
ableness of  the  rule;  that,  if  challenged, 
would  be  a  question  for  the  Interstate  Com- 
merce Commission.  The  question  now  is 
as  to  the  application  of  the  rule.  Nor  need 
we  consider  the  right  of  the  ticket  collector 
to  demand  payment  for  the  transportation 
of  the  plaintiff's  wife.  The  case,  as  the 
state  court  said,  turns  upon  the  right  to 
forfeit  the  mileage  book  with  its  unused 
coupons. 

The  condition  expressed  in  the  rule  is 
that  the  mileage  book,  or  mileage  ticket,  as 
it  ia  termed,  shall  be  presented  by  the 
original  purchaser,  llie  plaintiff  was  the 
original  purchaser  and  presented  it.  The 
company  seeks  to  construe  the  rule  as  if  it 
read  that  the  mileage  book  should  be  for- 
feited if  presented  by  the  original  purchaser 
for  the  transportation  of  a  person  other 
than  himself.  The  rule  does  not  so  read. 
It  was  not  made  a  ground  of  forfeiture 
[103]  that  the  original  purchaser  asked  for 

289  U.  S. 


1915. 


PROVIDENT  SAV.  L.  A8SUB.  800.  y.  KENTUCKY. 


lOS 


more  than  he  wms  entitled  to  get.  For  ex- 
junple,  when  the  plaintiff  presented  his  books 
at  the  station  to  procure  tickets  for  himself 
and  wife  in  exchange  for  coupons,  it  could 
not  be  said  that  he  forfeited  either  of  the 
books,  or  both,  because  he  asked  too  mudu 
He  was  in  ;io  different  position  when  he  pro- 
duced the  books  before  the  conductor,  with 
the  tickets  which  the  company's  agent  had 
given  him  in  exchange  for  coupons.  He  was 
still  the  original  purchaser,  and  the  provi- 
sion for  forfeiture  when  the  mileage  book 
is  presented  by  someone  else  does  not  hit 
the  case. 

We  cannot  say  that  the  state  court  denied 
a  Federal  right  when  it  held  that  railway 
ec»npany  strictly  to  its  own  terms. 

Judgment  affirmed. 


PROVIDENT    SAVINGS    LIFE    ASSUR- 
ANCE SOCIETY,  PUT.  in  Err., 

A'. 

COMMONWEALTH    OF   KENTUCKY,    by 
H.  M.  Bosworthy  Auditor. 

(See  S.  C.  Reporter's  ed.  103-116.) 

Error  to  state  court  —  Federal  question 

—  taxation  of  forelgrn  corporation  — 
doln^  business. 

1.  The  question  whether  or  not  a  for- 
eign corporation  was  doing  business  within 
the  state  at  the  time  to  which  a  privilege 
tax  imposod  upon  it  relates  is  open  for  re- 
new in  the  Federal  Supreme  Court  on  writ 
of  error  to  the  state  court  in  a  case  in  which 
the  enforcement  of  such  tax  was  unsuccess- 
fully resisted  on  the  ground  that  its  imposi- 
tion was  contrary  to  the  due  process  of  law 
clause  of  U.  8.  Const.,  14th  Amend.,  be- 
etuse  the  corporation  had  previously  with- 
drawn from  the  state. 

IFor  other  cases,  sec  Appeal  and  Error,  2070- 

•-'2G0.  in  Digest  Sup.  Ct.  1908. J 
Taxes  ^^  foreign  life  insurance  company 

—  doing  business. 

2.  The  mere  continuance  of  the  obliga- 
tion of  existing  policies  in  a  foreign  life 
insurance  company,  held  by  resident  policy 
holders,  together  with  the  receipt  cf  the 
renewal  premiums  upon  these  policies  at 
the  company's  home  office,  may  not  be 
treated  by  the  state  as  constituting  in  itself 
the  transaction  of  a  local  business,  justify- 
ing the  imposition  under  Ky.  Stat.  1906, 


f  4226,  of  an  annual  privil^e  tax  upon 
the  amount  of  the  premiums  so  received. 
(For  other  cases,  see  Taxes,  I.  c.  8,  a ;  Consti- 
tutional Law,  lY.  b,  6,  a.  In  Digest  Sup.  Ct. 
1908.] 

[No.  328.] 

Argued  October  20  and  21,  1915.    Decided 
November  15,  1915. 

IN  ERROR  to  the  Court  of  Appeals  of  the 
State  of  Kentucky  to  review  a  judgment 
which,  on  a  second  appeal,  affirmed  a  judg- 
ment of  the  Circuit  Court  of  Franklin  Coun- 
ty, in  that  state,  enforcing  a  privilege  tax 
upon  a  nonresident  life  insurance  company. 
Reversed  and  remanded  for  further  pro- 
ceedings. 

See  same  case  below,  on  first  appeal,  155 
Ky.  197,  159  S.  W.  698;  on  second  appeal, 
160  Ky.  16,  169  S.  W.  551. 

The  facts  are  stated  in  the  opinion. 

Mr.  AViUiam  Marshall  Bullitt  argued 
the  cause,  and,  with  Messrs.  Charles  C. 
Lockwood,  Keith  L.  Bullitt,  and  Clarence  C. 
Smith,  filed  a  brief  for  plaintiff  in  error: 

The  tax  levied  by  Ky.  Stat  §  4226,  is  a 
license  tax  imposed  on  foreign  insurance 
companies  for  the  privilege  of  doing  busi- 
ness within  Kentucky. 

Northwestern  Mut.  L.  Ins.  Co.  y.  James, 
138  Ky.  52,  127  S.  W.  505;  Southern  Bldg. 
&  L.  Asso.  V.  Norman,  98  Ky.  298,  31  LJI.A. 
41,  56  Am.  St.  Rep.  367,  32  S.  W.  952; 
Fidelity  &  C.  Co.  v.  Louisville,  106  Ky.  207, 
50  S.  W.  35;  Equitable  Life  Assur.  Soe.  v. 
Pennsylvania,  238  U.  S.  143,  146,  59  L.  ed. 
1239,  1241,  35  Sup.  a.  Rep.  829. 

The  state  of  Kentucky  cannot  tax  a  li- 
cense or  privilege  which  it  does  not  grant. 

Horn  Silver  Min.  Co.  v.  New  York,  143 
U.  S.  305,  36  L.  ed.  164,  4  Inters.  Com.  Rep. 
57,  12  Sup.  Ct.  Rep.  403;  New  York  v. 
Roberts,  171  U.  S.  658,  664,  43  L.  ed.  323, 
326,  19  Sup.  Ct.  Rep.  58;  Flint  v.  Stone 
Tracy  Co.  220  U.  S.  107,  164,  167,  55  L.  ed. 
389,  418,  419,  31  Sup.  Ct.  Rep.  342,  Ann. 
Cas.  1912B,  1312;  Louisville  &  J.  Ferry  Co. 
V.  Kentucky,  188  U.  S.  385,  306,  398,  47  L. 
ed.  513,  518,  519,  23  Sup.  Ct.  Rep.  463; 
Delaware,  L.  &  W.  R.  Co.  v.  Pennsylvania, 
198  U.  S.  341,  358,  360,  49  L.  ed.  1077,  1088, 
1084,   25   Sup.    Ct.   Rep.   669;    Union    Re- 


NoTE. — On  the  general  subject  of  writs 
of  error  from  the  United  States  Supreme 
Court  to  state  courts— see  notes  to  Martin 
▼.  Hunter,  4  U  ed.  U.  S.  97;  Hamblin  v. 
Western  Land  Co.  37  L.  ed.  U.  S.  267 ;  Re 
Buchanan,  39  L.  ed.  U.  8.  884;  and  Kipl^ 
V.  Illinois,  42  L.  ed.  U.  S.  998. 

On  whaJk  questions  the  Federal  Supreme 
Court  will  consider  in  reviewing  the  judg- 
ments of  state  courts — see  note  to  Mis- 
souri ex  rel.  Hill  v.  Dockery,  63  L.R.A. 
571. 
60  L.  ed. 


As  to  validity  of  license  tax  imposed  on 
foreign  corporation  as  a  condition  of  per- 
mission to  do  business  within  the  state-^ 
see  note  to  Reymann  Brewing  Co.  v.  Brister, 
45  L.  ed.  U.  Q.  269. 

On  taxation  of  corporate  franchises  in 
the  United  States — see  note  to  Louisville 
Tobacco  Warehouse  Co.  v.  Com.  57  Ii.R.A, 
33. 

As  to  restrictions  on  business  of  foreign 
insurance  companies — see  note  to  State  ex 
reL  Richards  v.  Ackerman,  24  L.R  J^.  298. 

167 


loe,  107 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TkBMy 


frigerator  Transit  Co.  y.  Kentucky,  199  U. 
8. 104»  204,  209,  211,  60  L.  ed.  150,  153,  155, 
156,  26  Sup.  Ct.  Rep.  36,  4  Ann.  Gas.  493; 
Buck  ▼.  Beach,  206  U.  8.  392,  400,  51  U  ed. 
1106,  nil,  27  Sup.  Ct.  Rep.  712,  11  Ann. 
Ca8.732. 

The  Provident  Savings  has  done  nothing, 
since  its  withdrawal,  which  can  be  con- 
strued as  "doing  business"  in  Kentucky  so 
as  to  justify  the  exaction  by  that  state  of  a 
privilege  or  license  tax. 

Hunter  v.  Mutual  Reserve  L.  Ins.  Co.  218 
U.  S.  573,  54  U  ed.  1155,  30  L.RAl.(N.8.) 
686,  31  Sup.  Ct  Rep.  127;  State  v.  Con- 
necticut Mut.  L.  Ins.  Co.  106  Tenn.  282,  61 
8.  W.  75. 

The  receipt  by  the  Provident  Savings  of 
premiums  in  New  York,  after  its  withdniwal 
from  Kentucky,  was  not  by  virtue  of  any 
privilege  or  license  of  Kentucky;  and  hence 
neither  the  premiums  so  received  nor  the 
privilege  of  receiving  them  are  taxable  by 
Kentucky. 

1.  The  company  cannot  be  taxed  for  the 
act  of  the  policy  holders. 

Almy  V.  California,  24  How.  169,  16  L. 
ed.  644;  Fairbank  v.  United  States,  181 
U.  8.  283,  292,  293,  45  L.  ed.  862»  866,  867, 
21  Sup.  Ct  Rep.  648,  15  Am.  Crim.  Rep. 
135;  Aligner  v.  Louisiana,  165  U.  8.  578, 
591,  593,  41  L.  ed.  832,  836,  837,  17  Sup.  Ct 
Rep.  427. 

2.  The  company's  act  was  in  New  York, 
not  Kentucky. 

Prewitt  V.  Securitv  Mut.  L.  Ins.  Co.  119 
Ky.  321,  1  L.R,A.(N.S.)  1019,  115  Am.  St 
Rep.  264,  83  8.  W.  611,  84  8.  W.  527 ;  Bed- 
ford  V.  Eastern  Bldg.  &  L.  Asso.  181  U.  8. 
227,  45  L.  ed.  834,  21  Sup.  Ct  Rep.  597; 
People  ex  rel.  Provident  Sav.  Life  Assur. 
Soc  V.  Miller,  179  N.  Y.  227,  71  N.  E.  930; 
State  V.  Connecticut  Mut.  L.  Ins.  Co.  106 
Tenn.  282,  61  8.  W.  75. 

3.  The  bare  legal  liability  to  Kentucky 
policy  holders  is  not  taxable  by  that  state. 

New  York  h,  Ins.  Co.  v.  Deer  Lodge 
County,  231  U.  8.  495,  508,  58  L.  ed.  332, 
337,  34  Sup.  Ct.  Rep.  167;  Allgeyer  v. 
Louisiana,  165  U.  8.  578,  588,  591,  592,  41 
L.  ed.  832,  835,  836,  837,  17  Sup.  Ct.  Rep. 
427;  New  York  L.  Ins.  Co.  v.  Head,  234 
U.  8.  149,  161,  68  L.  ed.  1259,  1264,  34 
Sup.  Ct.  Rep.  879. 

Mr.  John  A.  Judy  argued  the  cause,  and, 
with  Mr.  James  Gamett,  Attorney  General 
of  Kentucky,  filed  a  brief  for  defendant  in 
error : 

A  state  has  the  absolute  right  to  pre- 
scribe the  terms  upon  which  a  foreign  cor- 
poration shall  engage  in  business  in  that 
state. 

Paul  V.  Virginia^  8  Wall.  168,  19  L.  ed. 
357 ;  I>ucat  v.  Chicago,  10  Wall.  410,  19  L. 
ed.  972;  Fire  Asso.  of  Philadelphia  v.  New 
168 


York,  119  U.  8.  110,  80  L.  ed.  342,  7  Sup. 
Ct  Rep.  108;  Hooper  v.  California,  155  U. 
8.  648,  39  L.  ed.  297,  5  Inters.  Com.  Rep. 
610,  15  Sup.  Ct.  Rep.  207;  New  York  v. 
Roberts,  171  U.  8.  658,  43  L.  ed.  323,  19 
Sup.  Ct.  Rep.  58. 

After  an  insurance  company  has  applied 
for  and  been  granted  permission  to  insure 
the  lives  of  citizens  of  a  state,  and  has 
sgreed  to  pay  the  tax  for  such  privilege,  it 
cannot  avoid  that  tax  by  attempting  to 
withdraw  from  the  state  and  cease  writing 
new  business. 

Equitable  Life  Assur.  Soc.  v.  Pennsyl- 
vania, 238  U.  8.  143,  59  L.  ed.  1239,  35 
Sup.  Ct  Rep.  829. 

So  far  as  the  state  of  Kentucky  is  con- 
cerned, the  Provident  Savings  Life  Assur- 
ance Society  is  doing  business  in  Kentudcy 
as  long  as  it  has  insured  the  lives  of  citizens 
of  Kentucky  under  policies  written  while  it 
was  authorized  to  do  business  in  Kentucky. 

Connecticut  Mut.  L.  Ins.  Co.  v.  Spratley, 
172  U.  8.  603,  43  L.  ed.  569,  19  Sup.  Ct 
Rep.  308;  Mutual  Reserve  Fund  Life  Asso. 
V.  Phelps,  190  U.  8.  157,  47  L.  ed.  994,  23 
Sup.  Ct  Rep.  707. 

Mr.  Justice  Hnglies  delivered  the  opin- 
ion of  the  court: 

The  Provident  Savings  Life  Assurance 
Society,  a  New  York  corporation,  transact- 
ed business  in  Kentucky  prior  [107]  to 
January  1, 1907,  and  paid  the  annual  license 
tax  of  2  per  cent  on  premiums.  Ky.  Stat. 
§  4226.  This  suit  was  brought  by  the  com- 
monwealth to  recover  the  tax  on  premiums 
received  in  the  years  1907  to  1911,  inclusive. 
The  company  answered,  denying  liability 
upon  the  ground  tha£  on  January  1,  1007, 
it  had  entirely  ceased  to  do  business  in 
Kentucky,  and  that  all  premiums  received 
after  that  date  on  policies  previously  issued 
in  Kentucky  were  received  in  New  York. 

Prior  to  the  amendments  made  in  the* 
year  1906,  §  4226  of  the  Kentucky  Statutes 
provided  as  follows: 

"Sec.  4226.  Every  life  insurance  com- 
pany, other  than  fraternal  assessment  life 
insurance  companies,  not  organized  under 
the  laws  of  this  state,  but  doing  business 
therein,  shall  on  the  first  day  of  July  in 
each  year,  or  within  thirty  days  thereafter, 
return  to  the  auditor  of  public  accounts  for 
deposit  in  the  insurance  department,  a 
statement  under  oath  of  all  premiums  re- 
ceipted for  on  the  face  of  the  policy  for 
original  insurance  and  all  renewal  premi- 
ums received  in  cash  or  otherwise  in  this 
state,  or  out  of  this  state,  on  business 
done  in  this  state  during  the  year  ending 
the  30th  day  of  June  last  preceding,  or 
since  the  last  returns  were  made  and  shall 
at  the  same  time  pay  into  the  state  Treas- 
ury a  tax  of  $2  upon  each  $100  of  said 

289  U.  B. 


1015. 


PROVIDENT  SAV.  L.  A8SUR.  SOC.  ▼.  KENTUCKY. 


107-110 


premiums  as  ascertained.''    Ky.  Stat.  1903 
ed. 

This  section  was  amended  in  1006  by 
making  the  fiscal  year  to  end  on  December 
31st  instead  of  June  30th,  by  prohibiting 
deductions  for  dividends,  and  by  amplify- 
ing the  description  of  premium  receipts. 
<8ce  Mutual  Ben.  L.  Ins.  Co.  v.  Com.  128 
Ky.  174,  107  S.  W.  802;  Northwestern  Mut. 
L.  Ins.  Co.  V.  James,  138  Ky.  48,  127  S. 
W.  505.)  The  amended  section  was  as 
follows : 

**Sec.  4226.  Every  life  insurance  company, 
other  than  fraternal  assessment  life  in- 
surance Companies,  not  organized  [108]  un- 
der the  laws  of  this  state,  but  doing  business 
therein,  shall,  on  the  lirst  day  of  January 
in  each  year,  or  within  thirty  days  there- 
after,  return  to  the  auditor  of  public 
accounts  for  deposit  in  the  insurance  depart- 
ment a  statement  under  oath  of  all  premi- 
oms  receipted  for  on  the  face  of  the  policy 
for  original  insurance  and  all  renewal 
premiums  received  in  cash  or  otherwise  in 
this  state,  or  out  of  this  state,  or  business 
done  in  this  state  during  the  year  ending 
the  3l8t  day  of  December,  and  no  deduction 
shall  be  made  for  dividends,  or  since  the 
kst  returns  were  made,  on  all  premium 
receipts,  which  shall  include  single  premi- 
mns,  annuity  premiums,  and  premiums  re- 
ceived for  renewal,  revival  or  reinstatement 
of  policies,  annual  and  periodical  premiums, 
dividends  applied  for  premiums  and  addi- 
tions, and  all  other  premium  payments  re- 
ceived during  the  preceding  year  on  all 
policies  which  have  been  written  in,  or  on, 
the  lives  of  residents  of  this  state,  or  out 
of  this  state  on  business  done  in  this  state, 
and  shall  at  the  same  time  pay  into  the 
state  treasury  a  tax  of  $2  upon  each  $100 
of  said  premiums  as  ascertained." 

In  1906,  the  legislature  added  the  fol- 
lowing provision,  which  is  found  in  §  4230a 
of  the  Kentucky  Statutes : 

"Sec.  4230a.  (2) Any  insurance  company 
that  has  been  authorized  to  transact  busi- 
ness in  this  state  shall  continue  to  make 
the  reports  required  herein  as  long  as  it 
collects  any  premiums  as  provided  for  here- 
in, and  shall  pay  taxes  thereon,  even  after 
it  has  voluntarily  ceased  to  write  insurance 
in  the  state  or  has  withdrawn  therefrom, 
or  its  license  suspended  or  revoked  by  the 
insurance  commissioner,  and  for  failure  to 
make  report  of  the  premiums  collected  and 
pay  the  ta^ics  due  thereon,  shall  be  fined 
1500  for  such  offense." 

It  does  not  appear  that  the  changes  in 
S  4226  were  involved  in  the  present  con- 
troversy, as  there  w*as  no  dispute  as  to  the 
amount  of  the  premiums  received  in  the 
years  [109]  in  question,  or  as  to  deduc- 
tions. But  the  company  insisted  that  § 
•0  L.  ed. 


4230a  was  invalid  under  the  contract  clause 
of  the  Federal  Constitution  (art.  I.  §  10) » 
and  also  that  the  imposition  of  the  tax  on 
premiums  received  after  the  company  had 
withdrawn  from  the  state  was  contrary  to 
the  due  process  clause  of  the  14th  Amend- 
ment. Demurrer  to  the  answer  was  over- 
ruled, the  motion  of  the  defendant  that  the 
demurrer  relate  back  to  the  petition  was  sus- 
tained, and  the  petition  was  dismissed. 
Judgment  to  this  effect  was  reversed  by  the 
court  of  appeals  of  Kentucky  and  the  cause 
was  remanded  with  direction  to  sustain  the 
demurrer  to  the  answer  and  for  further  pro- 
ceedings consistent  with  the  opinion  of  the 
appellate  coturt.  165  Ky.  197,  169  8.  W. 
6U8. 

The  company  then  amended  its  answer, 
renewing  ito  eonstitutional  objections.  En- 
larging the  statement  of  facts,  it  averred 
that  on  January  1,  1907,  it  had  withdrawn 
all  its  agents  from  Kentucky,  had  closed 
all  its  ofiices,  and  had  ceased  to  solicit  or 
write  insurance,  or  maintain  any  agent,  or 
collect  any  premiums,  within  that  jurisdic- 
tion. On  January  \  1911,  the  Postal  Life 
Insurance  Company,  a  New  York  corpora- 
tion, had  reinsured  all  the  business  of  the 
defendant.  Between  January  1,  1007,  and 
January  1,  1911,  all  premiums  paid  to  the 
defendant  upon  policies  theretofore  issued 
in  Kentucky  were  paid  to  it  at  its  home 
office  in  New  York  city  through  the  mail. 

The  Postal  Life  Insurance  Company  did 
not  have  at  any  time  an  office  or  agents  in 
Kentucky,  or  transact  any  business  in  that 
state,  and  all  premiums  that  it  received 
were  paid  to  it  in  New  York  through  the 
mail. 

Demurrer  to  the  amended  answer  was 
sustained  and  judgment  was  entered  in 
favor  of  the  commonwealth.  The  court  of 
appeals  affirmed  the  judgment  (160  Ky.  16, 
169  S.  W.  551)  and  this  writ  of  error  has 
been  sued  out. 

[110]  The  court  of  appeals  did  not  put 
its  decision  upon  the  provision  of  §  4230a. 
This  provision,  it  was  said,  was  declaratory 
of  the  existing  law,  and  the  company's  ob- 
ligation was  taken  to  be  defined  by  §  4226. 
The  tax  was  a  license  tax  (Northwestern 
Mut.  L.  Ins.  Co.  V.  James,  138  Ky.  48,  52, 
127  S.  W.  505),  payable  annually,  and  by 
the  express  terms  of  the  act  was  payable 
by  the  foreign  life  insurance  corporation 
"doing  business"  within  the  state.  Both 
parties  agree  that  it  was  imposed  "for  the 
privilege  of  doing  business  in  Kentucky." 
The  state  contends  that  it  is  seeking  to  en- 
force an  agreement  which,  by  implication 
from  the  statutory  provision,  the  company 
must  be  deemed  to  have  made  when  it  en- 
tered the  state.  But  there  is  no  suggestion 
that  it  had  ever  been  decided  prior  to  this 

169 


110-118 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TkBM» 


litigation  that  the  described  companies  were 
bound  under  §  4226  to  pay  the  annual  tax 
irrespectiYe  of  the  continued  transaction 
of  business  within* the  jurisdiction  during 
the  years  to  which  the  tax  related.  Nor, 
as  we  understand  it,  was  the  statute  so 
construed  in  the  present  case.  It  is  true 
that  the  court  stated  in  its  opinion  that  the 
company,  on  being  admitted  to  the  state, 
agreed  to  pay  the  tax  imposed  by  §  4226, 
and  that  the  company  did  not  have  '*the 
right  and  power  to  revoke  this  agreement 
as  it  attempted  to  do  the  1st  of  January, 
1907."  But,  immediately  following  this 
statement,  the  court  proceeded  to  hold  with 
an  explicitness  which  does  not  permit  us 
to  doubt  the  basis  of  its  decision  that  the 
company  was  liable  to  the  tax  because  it 
continued,  despite  the  asserted  withdrawal, 
to  do  business  within  the  state  during  the 
period  for  which  the  tax  was  sought  to  be 
collected.  If  the  tax  in  controversy  was 
demanded  by  the  state  and  was  enforced 
upon  the  ground  that  it  was  payable  for  a 
privil^e  which  the  company  admittedly 
enjoyed  in  prior  years,  it  was  manifestly 
immaterial  to  inquire  whether  or  not  the 
company  was  continuing  to  transact  a  local 
business  during  the  succeeding  period.  In 
[111]  that  aspect,  the  question  would  be 
whether,  with  respect  to  the  alleged  agree- 
ment, the  decision  could  be  deemed  to  be  one 
which  in  reality  gave  effect  to  the  subsequent 
l^islation  (of  1006)  and  involved  the  appli- 
cation of  the  contract  clause.  If,  however, 
the  tax  now  sought  to  be  impost  was  for 
a  privilege  exercised  during  the  years  to 
which  the  tax  related,  it  would  be  necessary 
to  find  that  the  company  was  doing  busi- 
ness within  the  state  at  that  time.  Evident- 
ly in  view  of  this  necessity,  the  court  of 
appeals  said  upon  the  first  appeal: 

"Counsel  for  appellee  mainly  rests  its 
case  upon  the  definition  of  'what  is  doing 
business?'  Is  a  life  insurance  company 
doing  business  in  a  state  only  so  long  as 
it  is  writing  new  business?  If  this  is  true, 
then  the  appellant  has  no  case.  However, 
counsel  for  appellant  insists  that  an  in- 
surance company  is  doing  business  in  this 
state  in  the  meaning  of  the  statute  so  long 
as  it  is  insuring  the  lives  of  residents  of 
this  state  and  furnishing  protecticm  to  the 
beneficiaries  named  in  the  policies  against 
loss  from  death  of  the  insured,  this  being 
the  chief  business  for  which  insurance  com- 
panies are  organized,  and  we  are  unable  to 
see  how  the -court  [referring  to  the  court 
ef  first  instance]  held,  that  a  company  col- 
lecting^ premiums  on  policies  issued  in  this 
state,  when  it  was  authorized  to  do  business 
in  this  state,  can  be  said  'not  to  be  doing 
business,'  when  it  was  still  insuring  those 
same  lives  and  collecting  the  premiums  up- 
on the  poUcies."  156  Ky.  201. 
170 


Upon  the  second  appeal  the  court  merely 
referred  to  its  ruling  on  the  first  appeal 
and  to  other  cases  (Com.  v.  Illinois  L.  Ins. 
Co.  160  Ky.  580,  167  8.  W.  000;  Com.  v. 
Washington  L.  Ins.  Co.  150  Ky.  581,  167 
8.  W.  872)  in  which  that  decision  had 
been  followed  without  further  discussion 
of  grounds.  We  do  not,  therefore,  find  it 
necessary  to  consider  the  applicability  of 
the  contract  clause  of  the  Federal  Constitu- 
tion, inasmuch  as  it  [112]  appears  that  the 
decision  turned  upon  the  conclusion  that  the 
company  continued  after  January  1,  1007, 
to  transact  business  within  the  jiu'isdic- 
tion.  Otherwise,  according  to  the  final  rul- 
ing, the  state  would  have  had  '*no  case." 

The  present  case  thus  differs  from  that 
of  Equitable  L.  Assur.  8oc  v.  Pennsylvania, 
238  U.  8.  143,  50  L.  ed.  1280,  35  Sup.  Ct. 
Rep.  820.  It  was  not  disputed  that  the 
Equitable  Company  was  actually  doing  busi- 
ness in  Pennsylvania.  See  Com.  v.  Equita- 
ble Life  Assur.  Soc.  230  Pa.  288,  203,  86 
Atl.  787.  The  question  was  as  to  the  per- 
missible measure  of  a  tax  exacted  for  a 
privilege  admittedly  exercised.  As  this 
court  said:  "The  tax  is  a  tax  upon  a 
privilege  actually  used.  The  only  question 
concerns  the  mode  of  measuring  the  tax." 
238  U.  8.  147.  In  the  present  case  it  is  not 
the  measure  of  the  tax  for  doing  business, 
but  the  very  basis  of  the  tax — ^that  is, 
whether  the  company  was  doing  business 
within  the  state — that  is  in   controversy. 

Assuming  this  to  be  the  point  in  dispute, 
the  question  at  once  arises  whether  the  mat- 
ter is  reviewable  in  this  court.  And  we 
cannot  doubt  that  the  question  whether  the 
state  is  taxing  a  foreign  corporation  for  a 
privilege  not  granted — that  is,  whether  the 
acts  done  by  the  corporation  at  the  time 
to  which  the  tax  relates  are  of  such  a  na- 
ture as  to  subject  it  to  the  local  authority 
upon  the  ground  that  it  is  doing  acts  which 
can  only  be  done  with  the  permission  of 
that  authority — must  be  regarded  as  a  Fed- 
eral question.  Taxation  without  jurisdic- 
tion has  been  held  to  be  a  violation  of  the 
14th  Amendment  (Louisville  &  J.  Ferry  Co. 
V.  Kentucky,  188  U.  8.  885,  308,  47  L.  ed. 
513,  510,  23  Sup.  Ct.  Rep.  463;  Delaware, 
L.  &  W.  R.  Co.  V.  Pennsylvania,  108  U.  8. 
341,  368,  40  L.  ed.  1077,  1083,  25  Sup. 
Ct.  Rep.  660;  Union  Refrigerator  Transit 
Co.  V.  Kentucky,  100  U.  8.  104,  200,  50 
L.  ed.  150,  155,  26  Sup.  Ct.  Rep.  36,  4 
Ann.  Cas.  403  >;  and  the  principle  involved 
applies,  to  the  assertion  of  authority  on 
the  part  of  the  state  to  exact  a  license  tax 
for  the  privilege  of  doing  acts  which  lie 
beycmd  the  sphere  of  local  control.  It  fol- 
lows that  the  quality  of  the  acts  with  re- 
spect to  which  the  state  exercises  the  taxing 
[113]  power  must  be  considered  when  the 

289  U.  8. 


1915. 


PROVIDENT  SAV.  L.  ASSUR.  SOC.  y.  KENTUCKY. 


113-115 


constitutional  protection  against  the  trans- 
gression  of  jurisdictional  limits  is  invoked. 

It  is  not  controverted  that  the  company, 
at  the  time  in  question,  was  not  soliciting 
insurance  or  collecting  moneys  in  that  state. 
Further,  it  had  no  olliccs  or  agents  in  Ken- 
tucky. Upon  the  averments  which  stand 
admitted  in  the  record  it  must  be  assumed 
that  it  was  not  performing  any  acts  within 
the  jurisdiction  of  Kentucky.  It  had 
sought  to  withdraw  itself  completely  from 
the  state.  The  conclusion  that  it  continued 
to  do  business  within  the  state,  notwith- 
standing this  withdrawal,  appears  to  be 
based  solely  upon  the  fact  that  it  continued 
to  be  bound  to  policy  holders  resident  in 
Kentucky  under  policies  previously  issued 
in  that  state,  and  that  it  received  the  re- 
newal premiums  upon  these  policies.  As 
the  policies  remained  in  force,  it  is  said 
that  the  company  continued  to  furnish  pro- 
tection to  citizens  of  Kentucky.  The  re» 
newal  premiums,  aa  already  stated,  were 
paid  in  New  York.  There  is,  however,  a 
manifest  difficulty  in  holding  that  the  mere 
continuance  of  the  obligation  of  the  policies 
constituted  the  transaction  of  a  local  busi- 
ness for  which  a  privilege  tax  could  be 
exacti*d.  As  a  privilege  tax,  the  tax  rests 
upon  the  assumption  that  what  is  done  de- 
pends upon  the  state's  consent.  But  the 
continuance  of  the  contracts  of  insurance 
already  written  by  the  company  was  not 
dependent  on  the  consent  of  the  state.  It 
is  true  that  acts  might  be  done  within  the 
state  in  connection  with  such  policies  (as, 
for  example,  in  maintaining  an  oflicc  or 
agents,  although  new  insurance  was  not 
written  or  solicited)  which  could  be  con" 
sidered  to  amount  to  the  continuance  of  a 
local  business.  In  such  case  it  would  be  the 
actual  transaction  of  business  that  would 
furnish  the  ground  of  the  license  exaction, 
and  not  the  mere  existence  of  the  obligation 
under  policies  previously  written.  These 
policies  are  contracts  already  made;  the 
state  cannot  destroy  [114]  them  or  make 
their  mere  continuance,  independent  of  acts 
within  its  limits,  a  privilege  to  be  granted 
or  withheld.  Neither  the  continuance  of  the 
obligation  in  itself,  nor  acts  done  elsewhere 
on  account  of  it,  can  be  regarded  as  being 
within  the  state's  control.  Allgeyer  v. 
Louisiana,  165  U.  S.  578,  41  L.  ed.  832,  17 
Sup.  Ct.  Rep.  427;  Bedford  v.  Eastern  Bldg. 
k  L.  Asso.  181  U.  8.  227,  241,  45  L.  ed. 
834,  844,  21  Sup.  Ct.  Rep.  597;  New  York 
L.  Ins.  Co.  y.  Head,  284  U.  8.  149,  163,  58  L. 
ed.  1259,  1265,  34  Sup.  Ct.  Rep.  879. 

The  defendant  in  error  relies  upon  ex- 
pressions contained  in  the  opinions  in  Con- 
••  li.  ed. 


necticut  Mut.  L.  Ins.  Co.  v.  Spratley,  172  U. 
S.  602,  610,  43  L.  ed.  569,  571,  19  Sup.  Ct. 
Rep.  308,  and  Mutual  Reserve  Fund  Life 
Asso.  V.  Phelpa,  190  U.  S.  147,  157,  47  L. 
ed.  987,  994,  23  Sup.  Ct.  Rep.  707,— ex- 
pressions which  (in  a  full  review  of  these 
cases  and  others)  were  explained  and  lim- 
ited in  Hunter  v.  Mutual  Reserve  L.  Ins. 
(^.  218  U.  S.  573,  54  L.  ed.  1155,  30  L.R.A. 
(N.S.)  686,  31  Sup.  Ct.  Rep.  127.  The 
cases  cited  related  to  the  validity  of  the 
service  of  process  upon  foreign  corporations. 
And  it  was  held  that  a  foreign  insurance 
corporation  which  had  transacted  business 
within  the  jurisdiction  of  a  state  continued, 
notwithstanding  its  withdrawal  from  the 
state,  to  be  subject  to  service  of  process 
within  the  state,  in  actions  arising  out  of 
the  business  so  transacted,  where  the  serv- 
ice was  made  in  accordance  with  the  con- 
ditions upon  which  the  business  was  per- 
mitted to  be  done.  Thus,  in  the  Phelps 
Case,  service  was  made  in  Kentucky  under 
§  031  of  the  Kentucky  Statutes  providing 
for  service  of  process  upon  the  commission- 
er of  insurance.  The  court  of  appeals  of 
Kentucky  had  decided  that  the  witiidrawal 
of  the  company  from  the  state  did  not  ter- 
minate the  statutory  agency  for  the  accep- 
tance of  service  which  had  been  created  as 
a  condition  of  the  company's  admission ;  the 
granted  authority  continued  with  respect 
to  the  business  transacted.  Home  Ben.  Soc. 
V.  Muehl,  109  Ky.  479,  484,  50  S.  W.  620; 
Ocrmania  Ins.  Co.  v.  Ashby,  112  Ky.  303, 
307,  308,  99  Am.  St.  Kep.  295,  05  S.  \V. 
Oil.  But  a  distinction  obtains  when  the 
question  is  whether  the  mere  continuance  of 
the  obligation  to  resident  [115]  policy 
holders  under  the  existing  policies  can  be  re- 
garded as  constituting  in  itself  the  transac- 
tion of  a  local  business.  This  distinction 
was  made  clear  in  the  Hunter  Cc3e.  There, 
the  action  was  brought  in  New  York  against 
an  insurance  company  upon  judgments 
which  had  been  obtained  against  the  company 
in  North  Carolina.  The  question  turned  up- 
on the  validity  of  the  service  of  process  in 
the  North  Carolina  actions.  The  insurance 
company,  a  New  York  corporation,  had  been 
admitted  to  do  business  in  l^orth  Carolina, 
and  had  actually  transacted  business  in 
that  state  prior  to  the  year  1899.  The  leg- 
islature of  North  Carolina  enacted  a  statute 
providing  that  any  corporation  desiring  to 
do  business  in  the  state  after  June  1,  1899, 
must  become  a  domestic  corporation.  Se- 
vere penalties  were  prescribed  for  violation. 
Thereupon,  the  board  of  directors  of  the 
company  passed  a  resolution  ''to  withdraw 
from  the  state  and  to  dispense  with  and 

171 


115-117 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct. 


terminate  the  services  of  all  its  agents." 
The  agents  were  withdrawn  accordingly  and 
the  premiums  on  policies  theretofore  issued 
were  subsequently  ''remitted  by  mail  to  the 
home  office  of  the  company  in  New  York, 
where  the  policies  and  premiums  were  pay- 
able." There  were  in  that  case,  outside  of 
this  course  of  business,  four  transactions 
within  the  state  after  the  withdrawal,  which 
were  of  minor  importance  and  of  isolated 
character.  The  actions  in  question,  in  the 
North  Carolina  court,  were  not  brought 
upon  policies  issued  in  North  Carolina,  and 
consequently  it  was  sought  to  sustain  the 
jurisdiction  of  the  court  upon  the  ground 
that,  despite  the  withdrawal  of  the  com- 
pany, it  was  still  doing  business  within  the 
state.  The  court  expressly  overruled  this 
contention.  The  court  said:  "It"  (the 
company)  "was  given  the  choice  to  become 
a  domestic  corporation  or  go  out  of  the 
state.  It  chose  to  go  out  of  the  state,  and 
adopted  the  only  way  it  could  to  do  so. 
We  think  such  course  was  open  to  it  and  we 
see  no  reason  to  question  its  good  faith." 
Id.  p.  583.  [116]  It  was  recognized  that  the 
authority  which  the  company  had  given  with 
respect  to  service  of  process  cohtinued  in 
force  as  to  actions  growing  out  of  business 
which  had  been  transacted  within  the  state. 
But  the  continuance  of  the  authority  to 
accept  service  of  process  resulted  from  the 
nature  and  construction  of  that  authority, 
and  the  view  that  the  mere  continuance  of 
the  obligation  of  contracts  previously  made 
within  the  state  constituted  a  continuance 
of  "doing  business"  within  the  state  so  as 
to  give  the  company  a  "domicil  of  business," 
and  thus  subject  it  to  the  state's  jurisdic- 
tion, was  distinctly  disapproved. 

In  the  present  case,  the  question  is  not, 
as  in  the  Phelps  Case,  one  as  to  the  right 
to  revoke  the  agency  created  under  §  631  of 
the  Kentucky  Statutes  with  respect  to  the 
service  of  process  in  actions  arising  out  of 
transactions  which  had  taken  place  within 
the  state.  It  is  as  to  the  power  of  the 
state  to  treat  the  mere  continuance  of  the 
obligation  of  the  existing  policies  held  by 
resident  policy  holders  as  the  transaction 
of  a  local  business  justifying  the  imposition 
of  an  annual  privilege  tax  in  the  absence 
of  the  actual  conduct  of  business  within  the 
limits  of  the  state. 

We  cannot  conclude  that  the  state  has 
this  power,  and  in  this  view  the  judgment 
must  be  reversed  and  the  cause  remanded 
for  further  proceedings  not  inconsistent 
with  this  opinion. 

It  is  so  ordered. 
172 


[117]  UNITED  STATES,  Plff.  In  Brr^ 

V, 

JOE  FREEMAN. 

(See  S.  C.  Reporter's  ed.  117-121.) 

Federal  courts  —  proper  district  for 
suit  —  continuing  act  —  shipping  In- 
toxicating liquors. 

The  offense  denounced  by  the  Federal 
Criminal  Code,  §  240,  as  the  shipping  of  in- 
toxicating liquors  or  causing  them  to  be 
shipped  from  one  state  to  another,  or  from 
a  foreign  country  into  any  state,  in  packages 
not  labeled  with  the  name  of  the  consignee 
and  the  nature  and  qualitv  of  the  contents, 
is  cognizable  in  the  Federal  district  in  which 
the  place  of  destination  is  situated,  as  well 
as  in  the  district  in  which  the  packages  were 
delivered  to  the  carrier,  the  offense  iMing  one 
which  was  begun  in  the  one  district  and  com- 
pleted in  the  other,  within  the  meaning  of 
the  Judicial  Code,  §  42,  providins;  for  the 
punishment  of  such  offenses  in  either  dis- 
trict. 

[For  other  cases,  see  Courts,  087-092,  in 
Digest  Sup.  Ct.  1008.] 

[No.  481.] 

Argued  October  21,  1915.    Decided  Novem- 
ber 15,  1915. 

IN  ERROR  to  the  District  Court  of  the 
United  States  for  the  District  of  Kansas 
to  review  a  judgment  quashing  an  indict- 
ment charging  the  shipping  of  intoxicating 
liquor  in  interstate  commerce  in  unlabeled 
packtiges.  Reversed. 
The  facta  are  stated  in  the  opinion. 

Assistant  Attorney  General  Warren  ar- 
gued the  cause  and  filed  a  brief  for  plaintiff 
in  error: 

While  the  words  "ship"  and  ^'shipment*' 
may  in  some  statutes  be  confined  in  defini- 
tion to  "delivery  for  shipment,"  in  the  par- 
ticular statute  in  question  the  intent  of 
Congress  was  to  make  the  crime  of  ship- 
ping unlabeled  liquor  from  one  state  into 
another  a  continuing  crime,  and  hence  in- 
dictable both  in  the  district  where  delivery 
of  the  unlabeled  liquor  is  made  and  in  the 
district  into  which  the  unlabeled  liquor  is 
introduced. 

American  Steel  &  Wire  Co.  v.  Speed,  192 
U.  S.  500,  520,  48  L.  ed.  538,  546,  24  Sup. 
Ct.  Rep.  365;  Adams  Exp.  Co.  v.  Kentucky, 
238  U.  S  190,  59  L.  ed.  1267,  L.R.A.1016C, 
273,  35  Sup.  Ct.  Rep.  824,  Ann.  Cas.  1915D, 
1167;  Rhodes  v.  Iowa,  170  U.  S.  412,  42 
L.  ed.  1088,  18  Sup.  Ct.  Rep.  664;  United 
States  V.  <Smith,  115  Fed.  423;  West  Vir- 

NoTE.' — On  proper  Federal  district  for 
suit — see  note  to  Roberts  v.  Lewis,  36  L. 
ed.  U.  S.  579. 

289  V.  S. 


1915. 


UNITED  STATES  y.  FREEMAN. 


110 


ginia  y.  Adams  Exp.  Co.  L.R.A.1916C,  291, 
135  C.  C.  A.  464,  219  Fed.  794. 

It  IB  not  denied,  of  course,  that  in  stat- 
Qtes  unconnected  with  interstate  commerce 
the  word  "ship"  or  "shipment"  ordinarily 
denotes  a  single  completed  act  of  delivery  to 
the  carrier. 

See  Mora  y  Ledon  y.  Havemeyer,  121  N. 
Y.  185,  8  L.R.A,  245,  24  N.  E.  297 ;  Harri- 
son V.  Fortlage,  161  U.  S.  57,  63,  64,  40 
L.  ed.  616,  618,  619,  16  Sup.  Ct.  Rep.  488; 
Sofothem  Steel  k  1,  Co.  v.  Hickman,  190 
Fed.  890;  Garfield  &  P.  Coal  Co.  v.  Penn- 
sylvania Coal  k  Coke  Co.  199  Mass.  38,  84 
N.  £.  1020;  Fechteler  v.  Whittemore,  205 
Mass.  6,  91  N.  £.  155. 

But  these  decisions  almost  invariably  are 
concerned  with  the  significance  of  the  word 
when  used  in  ths  law  of  sales  and  kindred 
subjects. 

Any  construction  which  would  result  in 
paralyzing  the  operation  of  a  considerable 
portion  of  a  Fedaral  statute  is  to  be  avoided. 

Rhodes  v.  Iowa,  170  U.  S.  412,  421.  422, 
42  L.  ed.  1088,  1094,  1095,  18  Sup.  Ct.  Rep. 
664;  United  SUtes  v.  Wiltberger,  5  Wheat. 
76.  5  L.  ed.  37 ;  United  States  v.  Harris,  177 
U.  S.  305,  310,  44  L.  ed.  780,  782,  20  Sup. 
Ct.  Rep.  609;  United  States  ▼.  Hartwell.  6 
Wall.  385,  18  L.  ed.  830;  United  SUtes  v. 
Union  Supply  Co.  215  U.  S.  50,  55,  54  L. 
«L  87.  88,  30  Sup.  Ct  Rep.  15. 

Even  if  the  offense  of  shipping  began  in 
Missouri,  it  was  not  necessarily  wholly  com- 
pleted there,  but  continued  into  Kansas, 
and  might  be  prosecuted  in  either  jurisdic- 
tion. 

Re  Palliser,  136  U.  S.  257,  34  L.  ed.  514, 
10  Sup.  Ct.  Rep.  1034;  Putnam  v.  United 
SUtes.  162  U.  S.  687,  40  L.  ed.  1118.  16 
Sup.  Ct.  Rep.  923. 

That  causing  an  act  to  be  done  may  be  a 
crime  b^^un  in  one  place  and  completed  in 
another,  and  hence  indicUble  in  both,  is 
made  clear  by  the  decisions  whidi  define 
what  form  or  degree  of  causation  constitutes 
the  crin^. 

Burton  v.  United  SUUs,  73  C.  C.  A.  243. 
142  Fed.  62,  afBrmed  in  202  U.  S.  344,  389, 
50  L.  ed.  1057,  1074.  26  Sup.  Ct.  Rep.  688, 
6  Ann.  Cas.  362;  Demolli  v.  United  SUtes, 
«  LJLA.(N.S.)  424,  75  C.  C.  A.  366,  144 
Fed.  365.  7  Ann.  Cas.  121;  Bates  v.  United 
States,  11  Biss.  70,  10  Fed.  95;  United 
SUtes  v.  Bebout,  28  Fed.  522;  United  SUtes 
T.  Bickford,  4  Blatchf.  337,  Fed.  Cas.  No. 
14,591;  United  SUtes  v.  WhiU,  25  Fed.  716. 

It  is  well  settled  in  general  that  an  of- 
fense against  the  laws  of  the  United  SUtes 
■lay  be  prosecuted  in  the  district  in  which 
«0  Jj.  ed. 


it  was  initiated,  as  well  as  in  that  in  which 
it  was  completed,  where,  as  in  this  case, 
no  venue  is  specially  fixed  by  the  sUtuU 
creating  the  offense. 

1  Whart.  Crim.  Law.  11th  ed.  §§  324, 
334,  pp.  404,  405,  423;  Bridgeman  v.  United 
SUtes,  72  C.  C.  A.  145,  140  Fed.  591.  See 
also  Re  Palliser,  136  U.  S.  257,  267,  34  L. 
ed.  514,  518,  10  Sup.  Ct.  Rep.  1034;  Putnam 
V.  United  SUtes,  162  U.  S.  687,  40  L.  ed. 
1118,  16  Sup.  Ct.  Rep.  923;  Stillman  v. 
White  Bock  Mfg.  Co.  3  Woodb.  ft  M.  538. 
Fed.  Cas.  No.  13,446;  Dealy  v.  United 
States.  152  U.  8.  539.  547.  88  L.  ed.  545. 
548. 14  Sup.  Ct.  Bep.  680.  9  Am.  Crim.  Rep. 
161;  Benson  v.  Henkel,  198  U.  8.  1.  15. 
49  p.  ed.  919.  924.  25  Sup.  Ct.  Bep.  569; 
Hyde  v.  Shine,  199  U.  S.  62,  77.  50  L.  ed. 
90.  94.  25  Sup.  Ct.  Rep.  760;  United  States 
v.  Thayer,  209  U.  S.  39,  44.  52  L.  ed.  673, 
675,  28  Sup.  Ct.  Bep.  426;  Haas  v.  Henkel. 
216  U.  8.  462,  475.  476.  54  L.  ed.  569.  575. 
576.  30  Sup.  Ct.  Bep.  249.  17  Ann.  Cas. 
1112;  Perara  v.  United  SUtes.  136  C.  C. 
A.  623,  221  Fed.  217 ;  Simpson  v.  SUte.  44 
Am.  St.  Bep.  75,  and  note,  92  Ga.  41.  22 
L.B.A.  248,  17  8.  £.  984;  United  SUtes  ▼. 
Murphy.  91  Fed.  121. 

No  appearance  for  defendant  in  error. 

Mr.  Justice  Van  Devanter  delivered  the 
opinion  of  the  court: 

This  is  an  indictment  under  §  240  of  the 
Criminal  Code  making  it  a  punishable  of- 
fense knowingly  to  ''ship  or  cause  to  be 
shipped  from  one  state.  •  •  .  into  any 
other  sUte.  ...  or  from  any  foreign 
country  into  any  sUte.  •  .  . "  any  pack- 
age of  or  conUining  intoxicating  liquor 
of  any  kind,  "unless  such  package  be  so 
labeled  on  the  ouUide  cover  as  to  plainly 
show  the  name  of  the  consignee,  the  nature 
of  its  contents,  and  the  quantity  conUined 
therein."  [35  SUt.  at  L.  1137,  chap.  321, 
Comp.  SUt.  1913,  §  10,410.]  The  indict- 
ment was  returned  in  the  district  of  Kansas 
and  charges  the  defendant  with  violating 
the  sUtuU  by  knowingly  shipping  and  ca\is- 
ing  to  be  shipped  from  Joplin,  Missouri,  in- 
to Cherokee  county,  Kansas,  six  imlabeled 
trunks  severally  containing  from  12  to  15 
gallons  of  intoxicating  liquor.  By  a  mo- 
tion to  quash  and  a  demurrer  it  was  object- 
ed that  the  offense  denounced  bv  the  statuU 
is  compleU  when  the  package  is  delivered 
to  the  carrier  for  shipment,  and  therefore 
that  the  offense  charg^  was  not  cognizable 
in  the  district  of  Kansas,  but  only  in  the 
wesUm  district  of  Missouri.  Acceding  to 
this  construction  of  the  sUtute^  the  district 

17S 


110-121 


SUPREMB  COURT  OF  THE  UNITED  STATES. 


OOT.  TkBM. 


court  sustained  the  motion  to  quash  and 
the  demurrer,  and  entered  a  judgment  dis- 
charging the  defendant.  The  government 
brings  the  case  here  under  the  [120]  crim- 
inal appeals  act,  chap.  2564,  34  Stat,  at  L. 
1246,  Comp.  SUt.  1913,  §  1704. 

As  usually  understood,  to  ship  a  package 
from  one  state  into  another,  or  from  a  for- 
eign country  into  a  state,  is  to  accomplish 
its  transportation  from  the  one  into  the 
other  by  a  common  carrier,  and  is  essen- 
tially a  continuing  act  whose  performance 
is  begun  when  the  package  is  delivered  to 
the  carrier,  and  is  completed  when  it  reaches 
its  destination.  We  think  it  is  to  such  an 
act  that  the  statute  refers.  To  reach  a  dif- 
ferent conclusion  the  word  "ship"  must  be 
read  as  if  it  were  "deliver  for  shipment.'' 
No  doubt  it  sometimes  has  that  meaning,^ 
but  it  plainly  is  not  so  used  in  this  in- 
stance. The  statute  deals  with  shipping 
liquor  from  a  foreign  country  into  a  state, 
as  well  as  with  shipping  it  from  one  state 
into  another  state.  It  puts  both  upon  the 
same  plane  and  makes  them  equally  crim- 
inal. Whatever  marks  the  completion  of 
the  offense  in  one  likewise  marks  it  in  the 
other.  If  it  be  the  delivery  to  the  carrier 
in  the  case  of  interstate  shipments,  it  equal- 
ly is  this  delivery  in  the  case  of  shipments 
from  a  foreign  country.  And  yet  all  will 
concede  that  Congress  did  not  intend  to 
do  anything  so  obviously  futile  as  to  de- 
nounce as  criminal  an  act  wholly  done  in 
a  foreign  country,  such  as  is  the  delivery 
to  the  carrier  where  the  shipment  is  from 
a  foreign  country  into  a  state.  So,  if  its 
words  permit,  as  we  tliink  they  do,  the 
statute  must  be  given  a  construction  which 
will  cause  it  to  reach  both  classes  of  ship- 
ments, and  thereby  to  accomplish  the  pur- 
pose of  its  enactment.  United  States  v. 
Chavez,  228  U.  S.  625,  57  L.  ed.  950,  33 
Sup.  Ct.  Rep.  595.  This,  we  think,  requires 
that  it  be  construed  as  referring  to  the 
continuing  act  before  indicated  whereby  the 
transportation  into  a  state  is  accomplished, 
whether  the  package  comes  from  another 
state  or  from  a  foreign  country.  In  this 
view  the  completion  of  the  offense  will  al- 
ways be  within  a  jurisdiction  where  the 
statute  can  be  enforced. 

[121]  The  district  court  rightly  recog- 
nized that,  under  Judicial  Code,  §  42  [36 
Stat,  at  L.  1100,  chap.  231,  Comp.  Stat. 
1913,  §  1024],  formerly  Rev.  Stat.  §  731,  the 
offense  charged  was  cognizable  in  the  dis- 
trict of  Kansas,  as  well  as  in  the  western 
district  of  Missouri,  if  the  place  to  which 
the  packages  were  transported  was  the  place 
of  the  completion  of  the  offense.  Therefore 
nothing  need  be  said  upon  that  point. 

Judgment  reversed. 
174 


i 


6LENW00D    LIGHT    ft    WATER    COM- 
PANY, Appt., 

V. 

MUTUAL  UGHT,  HEAT,  k  POWER  COM- 
PANY. 

(See  S.  C.  Reporter's  ed.  121-126.) 

Federal  courts  —  amount  In  dispute  — 
nuisance. 

The  value  of  complainant's  asserted 
ri^ht  to  maintain  and  operate  its  elec- 
tric light  and  power  plant,  and  to  con- 
duct its  business  free  from  wrongful  inter- 
ference by  defendant,  a  rival  company, 
rather  than  the  cost  of  the  removal  of  de- 
fendant's poles  and  wires  where  they  con- 
flict or  interfere  with  those  of  complainant, 
and  tliAir.  replacement  in  such  position  as  to 
avoid  tlie  interference,  is  the  test  by  which 
to  determine  whether  the  amount  in  dis- 
pute iA  sufficient  to  support  the  jurisdiction 
of  a  Federal  district  court  of  a  suit  in 
which  the  complainant  prays  for  an  in- 
junction to  restrain  defendant  from  main- 
taining its  poles  and  wires  on  the  same  side 
of  the  streets  as  that  occupied  bv  complain- 
ant's poles  and  wires,  and  in  such  proximity 
as  to  injure  or  endanger  the  property  of 
complainant  and  its  customers,  and  the 
safety  and  lives  of  complainant's  customers 
and  employees,  and  also  asks  for  general 
relief. 

[For  other  cases,  see  Courts,  V.  c,  6,  In  Digest 
Sup.  Ct.  1908.] 

[No.  38.] 

Submitted  October  29,  1916.     Decided  No- 
vember 15,  1916. 

APPEAL  from  the  District  Court  of  the 
United  States  for  the  District  of  Colo- 
rado to  review  a  decree  dismissing,  for  want 
of  jurisdiction,  the  bill  in  a  suit  by  an  elec- 
tric light  and  power  company  to  restrain 
a  rival  company  from  interfering  with  the 
former's  business.  Reversed  and  renmnded 
for  further  proceedings. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Charles  S.  Tbomss,  George  Ii. 
Nye,  and  William  P.  Malbnrn  submitted 
the  cause  for  appellant: 

In  suits  seeking  injunctive  relief »  where 
the  value  of  the  property  or  right  to  be 
protected  is  greater  than  the  value  of  the 
property  about  which  the  dispute  origi- 
nated, and  the  value  of  the  property  or 
right  to  be  protected,  or  the  extent  of  the 
injury  to  be  prevented,  is  in  excess  of  the 
jurisdictional  amount,  jurisdiction  exists. 

Larabee  v.  Dolley,  175  Fed.  365 ;  Amerioan 
Smelting  &  Ref.  Co.  v.  Godfrey,  80  C.  C.  A» 
139,  158  Fed.  225,  14  Ann.  Cas.  8;  Rockj 
Mountain  Bell  Teleph.  Co.  t.  Montana  Fed- 
eration of  Labor,  156  Fed.  809;  Evenson 
v.  Spaulding,  9  L.R.A.(N.S.)  904,  82  C.  C- 
A.  263,   150  Fed.   617;   Doard,  of  Trade  t^ 

230   U.  S. 


1913.  6LENW00D  I«.  ft  W.  00.  t.  MUTUAL  U  H.  4  P.  00.  122,  12S 

Cell*  Commission  Co.  76  0.  C.  A.  28,  145  i     Mr.  Justice  Pitney  deliyered  the  opinion 
Fed.  28;  Riverside  &  A.  R.  Co.  y.  Riyerside^  I  of  the  court: 

118  Fed.  743 ;  Hutchinson  y.  Beckham,  56        This  is  an  appeal  from  a  decree  of  the  dis- 

C.  0.  A.  333,  118  Fed.  300;  Draper  y.  Sker-  trict  court,  dismissing  a  bill  of  complaint 

rett,  116  Fed.  206;  Humes  v.  Ft.  Smith,  93  ^o^  want  of  jurisdiction;    the  jurisdiction 

Fed.  857 ;  Nashville,  C.  ft  St.  L.  R.  Co.  y.  having  been  invoked  upon  the  ground  that 

McConnell,  82  Fed.  65  j  Rainev  v.  Herbert,  ^*»«  ««'^  was  between  citizens  of  different 

6  C.  C.  A.  183,  3  U.  S.  App.  ^592,  55  Fed.  «^*««'  *°^  *^**  ^«  ™**^  ^^  controversy 

443;  Texas  ft  P.  R.  Co.  v.  Kuteman,  4  C.  exceeded  the  sum  or  value  of  $3,000  (Judi- 

C.  A.  503,  13  U.  S.  App.  99,  54  Fed.  547;  ^'^^  ^"^^^  «  24,  act  of  March  3,  1911,  36 

Miaussippi  &  M.  R.  Co.  y.  Ward,  2  BUck,  Stat,  at  L-^ 087, 1091,  chap.  231,  Comp.  Stat. 

485,  17  L  id.  311;  Scott  v.  Donald,  165  U.  l^^^,  §§  968,  991).     The  bill,  besides  the 

a  107,  41  L.  ed.  648,  17  Sup.  Ct.  Rep.  262;  requisite  averments  as  to  the  citizenship 

McNeill  y.  Southern  R.  Co.  202  U.  S.  543,  «'   *^« .  P^'-^'f »'   »"««««   "*   substance   that 

60  L.  ed.  1142,  26  Sup.  Ct.  Rep.  722;  Hunt  complamant  is  the  owner  by  assi^ment  of  a 

v.  New  York  Cotton  Exch.  205  U.  S.  322,  51  franchise  granted  m  the  year  1887  by  the 

Led.  821.  27  Sup.  a.  Rep.  529;  Bitterman  ^'^'^  ^}  Glenwood  Springs,  in  the  state  of 

v.  Louisville  &  N.  R.  Co.  207  U.  S.  205,  52  ^o  ?rado,    and    subsequently    renewed,    en- 

L  ed.  171,  28  Sup.  Ct.  Rep.  91,  12  Ann.  titling  complainant  to  erect  and  maintain  a 

Cm.  693;    Berryman  v.  Whitman  College,  pla«t  for  the  purpose  of  supplying  the  town 

282  U.  S.  334,  56  L.  ed.  225,  32  Sup.  Ct.  *°^  ***  inhabitants  with  electric  light  and 

^  ,^y  power;  that  complainant  and  its  predeces- 

'  sors,  prior  to  1911,  constructed  an  electric 

Mr.   John    T.    Barnett    submitted    the  light  and  power  system,  and  erected  poles 

eause  for  appellee :  and  wires  in   the  alleys  of  the  town,  in 

The  ''matter  in  dispute,"  as  used  in  the  the  manner  provided  for  in  the  ordinance, 

•Utute,  means  the  matter  or  purpose  for  and  complainant  has  continued  to  carry  on 

which  the  suit  is,  in  good  faith,  brought.  its  business  and  supply  electric  current  to 

Smith  v.  Adams,  130  U.  S.  167,  175,  32  the  town  and  its  inhabitants,  and  still  con- 

L.  ed.  893,  898,  0  Sup.  Ct.  Rep.  566.  tinues  to  maintain  its  poles  and  wires  in 

The  '"matter  in  dispute"  in  the  case  at  the  streets  and  alleys  of  the  town;  that  in 

btr  is  the  removal  of  the  alleged  dangerous  April.  1911,  the  town  attempted  to  grant  to 

contact  of  the  defendant's  wires  with  those  defendant  the  right  to  erect  a  plant  and  con- 

cf  plaintiff     And  the  amount  or  value  of  J*'^'*^*  f".?'  »  «y?**°^,  for  furnishing  the 

the  matter  in  dispute  is  the  cost  to  appel-  ^"^J"  »"f/;  inhabitants  with  electric  cur- 

1^  ^t  Au^ r   *  Au      11      J  J  rent,  and  defendant  commenced  the  construc- 

leeof  the  removal  of  the  alleged  dangerous  i..        *^ix       j.  i.^      -ui'^a 

^^  ^  ^  tion  of  a  plant,  and  began  to  furnish  light 

**w^    .     .  ..  «^  n  ^         «T    J  «  «i    1-  to  the  town  on  or  about  October  1st,  1912, 

Mississippi  &  M.  R.  Co.  y.  Ward,  2  Black,  ^^^  ^j^j^j^  ^^  j^  ^^^^  j^^^^  ^^^  ^^^ 

485,  17  L.  ed.  311;   American  Smelting  ft  f^j^  carrying  electric  current  for  the  pur- 

Rcf.  Co.  y.  Godfrey,  89  C.  C.  A.  139, 168  Fed.  pose  of  lighting  the  town  and  furnishing 

225,   14   Ann.    Cas.    8;    Von    Schroeder    v.  light  to  some  of  its  inhabitants;  that  com- 

Brittan,  93  Fed.  9;  Jessup  v.  Chicago  &  N.  plainant's    poles   were   erected,   so   far   as 

W.  R.  Co.  188  Fed.  931.  practicable,  in  the  alleys  of  the  town,  as 

The  "matter  in  dispute,"  the  amount  of  was  provided  in  its  ordinance,  and  its  wires 

which   determines   the   jurisdiction   of  the  ^«re  strung  on  those  poles  and  connected 

Federal  courts,  must  be  money  or  some  prop-  ^^th  the  premises  of  its  customers  in  ac- 

erty  or  other  right  that  can  be  estimated  cordance  with  the  terms  of  the  franchise 

•nd  ascerUined  in  money.  *°^  ^^  regulations  of  the  town;  that  de- 

South   Carolina  y.   Seymour,   163   U.   8.  fepdant  has  erected  its  poles  and  strung  its 

867,  38  L.  ed.  744,  14  Sup.  Ct.  Rep.  871;  ""^^  principally  in  the  alleys  of  the  town, 

Kurt.  y.  Moffitt,  115  U.  S   487,  498,  29  L.  ^^  particularly  m  the  alleys  occupied  by 

«•  T.  jMvi«it.b,  *ai»  yj,  «.  -SOI,  -mvo,  ^o  j-i.  ^v    p^jgg  gjj^  wircs  of  complaiiiant.  and  for 

^458,  460    6  Sup.  Ct.  Rep^  148;  Unit^  .^he  most  part  upon  the  sLe  side  of  the 

BUtes  ex  rel.  Holzendorf  v.  Hay,  194  U.  S.  ^Hey,  ^^^^  ^nd  occupied  by  the  poles  and 

m,  876,  48  L.  ed.  1025,  1026,  24  Sup.  Ct.  ^ires    of    complainant,    for    the    purpose 

**P*  ®81.  and  with  the  intent  of  interfering  with  and 

The  allegation  in  the  bill  that  the  amount  harassing  complainant;  that  complainant's 

^  controversy  exceeds  the  sum  of  $3,000  poles  are  of  the  size  usually  employed  in 

ii  but  a  conclusion,  and  is  not  a  sufficient  towns   and   cities   approximating   the   size 

ftUcgition  of  the  value  of  the  matter  in  of  Glenwood  Springs,  but  that  defendant's 

controversy.  poles  are  about  six  feet  shorter,  and  on 

^iflhback  y.  Western  U.  Teleg.  Co.  161  U.  account  of  the  narrowness  of  the  alleys 
8. 100,  40  L.  ed.  691,  16  Sup.  Ct  Rep.  506. '  have  been  set  on  practically  the  same  line 
•0  L.  ed.  \1^ 


123-126 


6UPREME  COURT  OF  THE  UNITED  STATES. 


Got.  ItenCy 


as  complainant's  poles,  so  that  defendant's 
cross-arms  and  wires  are  brought  immedi- 
ately below  and  in  close  proximity  to 
complainant's  wires,  so  as  to  make  the  main- 
tenance and  operation  of  its  wires  by  com- 
plainant exceedingly  difficult,  as  well  as 
dangerous  to  the  property  of  complainant 
and  its  customers,  owing  to  the  probability 
of  damage  by  fire  caused  by  short  circuits, 
and  dangerous  to  the  safety  and  lives  of 
complainant's  customers  and  of  its  linemen 
and  other  employees  who,  in  the  discharge 
of  their  duties,  are  required  to  climb  its 
poles;  that,  because  of  this,  complainant 
is  and  constantly  will  the  threatened,  so  long 
as  defendant  maintains  its  poles  and  wires 
as  aforesaid,  with  liability  in  case  of  inju- 
ries to  persons  and  property  caused  by  the 
maintenance  of  defendant's  wires  [124]  and 
electric  current  in  close  proximity  to  the 
wires  and  current  of  complainant;  that 
complainant's  business  is  increasing,  and 
more  wires  are  being  constantly  required 
to  supply  the  wants  of  its  customers,  and 
this  will  require  the  setting  of  cross  bars 
on  the  poles  of  complainant  below  the  cross 
bars  now  in  use,  whereby  the  wires  of  com- 
plainant will  be  brought  closer  to  defend- 
ant's wires  than  they  are  at  present,  and 
thereby  the  danger  and  expense  and  the 
probability  of  injuries  to  complainant  and 
its  employees  and  customers  will  be  greatly 
increased;  and  that  by  reason  of  the  pre- 
mises complainant  is  and  will  be  subjected 
to  numerous  liabilities  and  actions  at  law 
for  damages  arising  out  of  the  conditions 
created  by  defendant's  acts;  that  the  value 
of  complainant's  plant  is  $150,000,  and  the 
damage  caused  to  complainant  and  its  busi- 
ness and  property  and  to  its  right  to  main- 
tain its  poles  and  wires  without  interfer- 
ence or  injury  in  the  alleys  and  streets  of 
the  town  of  Glenwood  Springs,  where  the 
poles  and  wires  of  defendant  have  been 
placed  in  close  proximity  to  complainant's 
poles  and  wires,  is  largely  in  excess  of  the 
sum  of  $3,000. 

The  prayer  is  for  an  injunction  to  re- 
strain defendant  from  maintaining  its  poles 
and  wires  on  the  same  side  of  the  alleys 
and  streets  as  those  occupied  by  complain- 
ant's poles  and  wires,  or  in  such  proximity 
as  to  injure  or  endanger  the  property  of 
complainant  and  its  customers  and  the  safe- 
ty and  lives  of  complainant's  customers  and 
employees,  and  for  general  relief. 

The  answer  denies,  generally  and  spe- 
cifically, the  essential  facts  set  up  in  the 
bill;  denies  that  the  matter  in  controversy 
exceeds  in  value  the  sum  of  $3,000;  denies 
that  the  value  of  complainant's  plant  is  as 
much  as  $150,000;  alleges  that  its  value 
does  not  exceed  $25,000;  denies  that  the 
damage  caused  by  defendant  to  complain- 
176 


ant  or  its  business  or  property  is  in  exceM 
of  $3,000;  uid  alleges  that  the  cost  of  the 
removal  of  all  the  poles  and  wires  of  de- 
fendant [125]  claimed  to  be  in  dangeroiu 
or  objectionable  proximity  to  complainant's 
poles  and  wires  would  not  exceed  $600. 

Upon  the  final  hearing,  the  court,  after 
argument,  held  that  the  Jurisdietional 
amount  was  fixed  by  the  cost  to  defendant 
of  removing  its  poles  and  wires  in  the 
streets  and  alleys  where  they  conflicted  or 
interfered  with  the  poles  and  wires  of  com- 
plainant, and  replacing  defendant's  poles 
and  wires  in  such  position  as  to  avoid  oon- 
fiict  and  interference.  Thereupon  testimony 
was  introduced  for  the  purpose  of  deter* 
mining  whether  such  cost  would  exceed  the 
sum  of  $3,000,  and  the  court,  having  de- 
termined that  under  the  evidence  it  would 
not  exceed  that  amount  (which  complain- 
ant conceded),  dismissed  the  bill  for  want 
of  jurisdiction,  although  complainant  con- 
tended that  such  method  was  not  the  proper 
method  of  determining  the  jurisdictional 
amount. 

The  case  comes  here  under  §  238,  Judicial 
Code  [36  Stat,  at  L.  1157,  chap.  231,  U.  8. 
Comp.  Stat.  1013,  |  1215],  the  question  of 
jurisdiction  being  certified. 

/We  are  unable  to  discern  any  sufficient 
ground  for  taking  this  case  out  of  the  rule 
applicable  generally  to  suits  for  injunction 
to  restrain  a  nuisance,  a  continuing  tres- 
pass, or  the  like,  tiz.,  that  the  jurisdictional 
amount  is  to  be  tested  by  the  value  of  the 
object  to  be  gained  by  complainant.  The 
object  of  the  present  suit  is  not  only  the 
abatement  of  the  nuisance,  but  (under  the 
prayer  for  general  relief)  the  prevention 
of  any  recunrence  of  the  like  nuisance  in 
the  future. /in  Mississippi  k  M.  R.  Co.  v. 
Ward,  2  Black,  492,  17  L.  ed.  311,  314,  it 
was  said:  "The  want  of  a  sufficient 
amount  of  damage  having  been  sustained 
to  give  the  Federal  courts  jurisdiction 
will  not  defeat  the  remedy,  as  the  re- 
moval of  the  obstruction  is  the  matter  of 
controversy,  and  the  value  of  the  objeet 
must  govern."  The  same  rule  has  been  ap- 
plied in  numerous  cases,  and  under  varying 
circumstances.  Scott  v.  Donald,  165  U.  S. 
107,  115,  41  L.  ed.  648,  654,  17  Sup.  Ct  Rep. 
262;  McNeill  v.  Southern  R.  Co.  202  U.  S. 
543,  558,  50  L.  ed.  1142,  1147,  26  Sup. 
Ct.  Rep.  722;  [126]  Hunt  v.  New  York 
Cotton  Exch.  205  U.  S.  322,  336,  51  L.  ed. 
821,  826,  27  Sup.  Ct.  Rep.  529;  Bitterman 
V.  Louisville  k  N.  R.  Co.  207  U.  S.  205,  225, 
52  L.  ed.  171,  183,  28  Sup.  Ct.  Rep.  91,  12 
Ann.  Cas.  693;  Berryman  v.  Whitman  (Col- 
lege, 222  U.  8.  334,  345,  56  L.  ed.  225.  228, 
32  Sup.  Ct.  Rep.  147. 

The  district  court  erred  in  testing  the 
jurisdiction  by  the  amount  that  it  would 

2S9  U.  6. 


1915. 


MORRIS  CANAL  k  B.  CO.  t.  BAIRD. 


126 


€Oft  defendant  to  remove  its  poles  and  wires 
where  they  conflict  or  interfere  with  those 
of  complainant,  and  replacing  them  in  such 
a  position  as  to  avoid  the  interference. 
Complainant  sets  up  a  right  to  maintain 
and  operate  its  plant  and  conduct  its  busi- 
ness free  from  wrongful  interference  by  de- 
fendant. This  right  is  alleged  to  be  of  a 
Talue  in  excess  of  the  jurisdictional  amount, 
and  at  the  hearing  no  question  seems  to 
liave  been  made  but  that  it  has  such  value. 
The  relief  sought  is  the  protection  of  that 
right,  now  and  in  the  future,  and  the  value 
of  that  protection  is  determinative  of  the 
jurisdiction. 

Decree  reversed,  and  the  cause  remanded 
for  further  proceedings  in  accordance  with 
this  opinion. 


MORRIS  CANAL  &  BANKING  COMPANY 
and  Lehigh  Valley  Railroad  Company, 
PIffs.  in  Err., 

V. 

DAVID  BAIRD,  Stephen  J.  Meeker,  Tlieo- 
dore  Strong,  and  Eckard  P.  Budd,  SUte 
Board  of  Assessors  of  the  State  of  New 
Jersey,  and  J.  Willard  Morgan,  Comp- 
troller of  Said  State. 

(See  S.  C.  Reporter's  ed.  126-133.) 

Tsxcs  —  exemption  —  transfer  of  Im- 
munity. 

Any  contract  exemption  from  taxa- 
tion which  may  have  been  created  by  a  pro- 
vision in  the  charter  of  a  canal  and  bank- 
ing company  which  limits  the  exemption 
thereby  granted  to  such  property  "as  is 
poflsesEcd,  occupied,  and  used  by  the  said 
company  for  the  actual  and  necessary  pur- 
poses of  said  canal  navigation"  did  not 
pass  to  its  grantee  and  lessee  in  favor  of 
which  the  canal  company  exercised  the  right 
given  to  it  by  New  Jersey  act  of  March  14, 
1871,  to  lease  "the  canal  of  said  company 
or  any  part  thereof,  with  all  or  any  of  its 
boats,  property,  works,  appurtenances,  and 
franchises." 

IFor  other  cases,  see  Taxes,  I.  c.  8.  e.  In 
Digest  Sup.  Ct.  1908.]  w,    o.    «,    « 

[No.  1.] 

Argued  October  21,  1915.    Decided  Novem- 
ber 15,  1915. 


Note. — ^As  to  exemption  from  taxation, 
whether  a  contract  or  not — see  note  to 
Tucker  v.  Ferguson,  22  L.  ed.  U.  S.  805. 

On  corporate  taxation  as  affected  by  the 
«>ntract  clause  in  the  Federal  Constitution 
^-see  note  to  Adams  v.  Yazoo  k  M«  Valley 
K.  Co.  60  L.R.A.  33. 
«0  L.  ed. 


IN  ERROR  to  the  Court  of  Errors  and 
Appeals  of  the  State  of  New  Jersey  to 
wview  a  judgment  which  affirmed  a  judg-lCt.  Rep'.  556;  Tennessee  v.  Whitworth,  117 


ment  of  the  Supreme  Court  of  that  itate^ 
sustaining  on  certiorari  a  tax  levied  by  the 
state  board  of  assessors  on  canal  property 
and  appiurtenances.    Affirmed. 

See  same  case  below,  76  N.  J.  L.  627,  71 
Atl.  328. 

The  facts  are  stated  in  the  opinion. 

Mr.  Gilbert  Collins  argued  the  cause  and 
filed  a  brief  for  plaintiffs  in  error: 

The  contract  of  exemption  of  the  Morris 
Canal  from  taxation  was  not  a  bounty  con- 
ferred on  any  particular  company,  nor  an 
agreement  made  merely  in  view  of  pre- 
sumptive benefits  to  the  people.  It  was  a 
contract  of  exemption  of  certain  specific 
property,  for  an  adequate  consideration,  to 
wit,  the  conveyance  of  the  property  itself  to 
the  state,  possession  to  be  taken  at  the  end 
of  a  term  of  years,  the  owner  meantime  to 
devote  the  property  to  public  use  on  terms 
controlled  by  the  state,  and  for  other  sub- 
stantial considerations. 

Barnett  v.  Johnson,  15  N.  J.  Eq.  485. 

The  courts  of  New  Jersey,  in  r^eatedly 
construing  the  charter,  have  uniformly  nar- 
rowed the  exemption  to  the  lands  occupied 
by  this  public  highway. 

State,  Morris  Canal  k  Bkg.  Co.,  Prose- 
cutors, V.  Bctts,  24  N.  J.  L.  565;  State, 
Morris  Canal  k  Bkg.  Co.,  Prosecutors,  t. 
Haight,  35  N.  J.  L.  178;  Morris  Canal  k 
Bkg.  Co.  y.  Jersey  City,  12  N.  J.  Eq.  227; 
State,  Morris  Canal  k  Bkg.  Co.j  Prosecu- 
tors, V.  Love,  37  N.  J.  L.  60;  State,  Lehigh 
Valley  R.  Co.,  Prosecutors,  v.  Newark,  44 
N.  J.  L.  323;  State,  Morris  Canal  k  Bkg. 
Co.,  Prosecutors,  v.  Cleaver,  *46  N.  J.  L.  467. 

In  New  Jersey  y.  Wilson,  7  Cranch,  164, 
3  L.  ed.  303,  a  case*was  presented  to  this 
court  very  similar  to  the  present  case,  in 
that  an  actual  consideration  passed  to  the 
state  in  return  for  the  exemption  of  certain 
lands  from  taxation.  And  this  exemption 
was  held  to  pass  to  the  grantee  of  such 
lands,  the  grant  being  made  by  authority 
of  a  legislative  act  which  made  no  mention 
of  the  exemption. 

Even  in  cases  where  much  weaker  consid- 
erations are  presented,  these  contracts  have 
been  sustained. 

New  Orleans  Gaslight  Co.  y.  Louisiana 
Light  &  H.  P.  &  Mfg.  Co.  116  U.  S.  654, 
29  L.  ed.  518,  6  Sup.  Ct.  Rep.  252;  Central 
R.  k  Bkg.  Co.  v.  Georgia,  92  U.  S.  670,  23 
L.  ed.  760;  Powers  v.  Detroit,  G.  H.  k  M. 
R.  Co.  201  U.  S.  543,  50  L.  ed.  860,  26  Sup. 


U.  S.  129,  29  L.  ed.  830,  8  Sup.  Ct.  Rep. 
645;  Humphrey  v.  Pegues,  16  Wall.  244,  21 
L.  ed.  326;  Philadelphia,  W.  k  B.  R.  Co.  v. 
Maryland,  10  How.  377,  13  L.  ed.  462; 
Green  County  v.  Conness,  109  U.  S.  104,  27 
L.  ed.  872,  3  Sup.  Ct.  Rep.  69. 
There  are  numerous  other  cases  where  thft 
12  Vll 


SUPREME  CX)UBT  OF  THE  UNITED  STATES. 


Oct. 


iptioo  WM  doiied  in  the  hands  of  the 
Mtignee  ecunpany.  Theie  Will  be  fowMi  to 
fall  within  four  elaaiei,  to  wits 

(a)  Wh^nre  the  mortgage,  li«ae»  or  trana- 
fer  waa  made  without  express  statutory 
authority, 

Memphis  4  L.  B.  B.  Co.  t.  Bailroad 
Comrs.  (Memphis  ft  L.  R.  R.  Co.  t.  Beny) 
112  U.  8.  600,  28  L.  ed.  837,  6  Sup.  Ct  Rep. 
200;  Chesapeake  ft  0.  R.  Co.  t.  Miller,  114 
U.  8.  176,  20  L.  ed.  121,  6  Sup.  Ct  Rep. 
813;  Picard  t.  East  Tennessee,  V.  ft  G.  R. 
Co.  130  U.  S.  637,  32  L.  ed.  lOJl,  0  Sup. 
Ct.  Rep.  640;  Mercantile  Bank  t.  Tennessee, 
161  U.  S.  161,  40  L.  ed  656,  16  Sup.  Ct. 
Rep.  461;  East  TsDuessee,  V.  ft  G.  R.  Co.  t. 
Hamblen  County,  102  U.  S.  273,  26  L.  ed. 
152;  Wilson  T.  Gaines,  103  U.  S.  417,  26 
L.  ed.  401 ;  Louisville  ft  K.  R.  Co.  t.  Palmes, 
100  U.  S.  244,  27  !«.  ed.  022,  8  Sup.  Ct  Rep. 
103. 

(b)  Where  the  corporation  claiming  the 
exemption  was  not  created  until  a  consti- 
tutional bar  to  exemption  had  been  inter- 
posed« 

Trask  t.  Maguire,  18  WaU.  301,  21  L. 
ed.  038;  Keokuk  ft  W.  R.  Co.  t.  Missouri, 
152  U.  S.  301,  38  L.  ed.  450,  14  Sup.  Ct. 
Rep.  502;  Atlantic  ft  G.  R.  Co.  y.  Georgia, 
08  U.  S.  350,  25  L.  ed.  185;  St.  Louis,  I. 
M.  ft  S.  R.  Co.  y.  Berry,  113  U.  S.  465,  28 
L.  ed.  1055,  5  Sup.  Ct.  Rep.  520;  Memphis 
ft  L.  R.  R.  Co.  y.  Railroad  Comrs.  (Memphis 
ft  L.  R.  R.  Co.  y.  Berry)  112  U.  S.  600,  28 
L.  ed.  837,  5  Sup.  Ct.  Rep.  200;  Minneapolis 
ft  St.  L.  R.  Co.  y.  Gardner,  177  U.  S.  332, 
44  L.  ed.  703,  20  Sup.  Ct.  Rep.  656 ;  Shields 
y.  Ohio,  05  U.  S.  321,  24  L.  ed.  358 ;  Maine 
C.  R.  Co.  T.  Maine,  06  U.  S.  509,  24  L.  ed. 
840;  Tazoo  ft  M.  Valley  R.  Co.  v.  Adams, 
180  U.  S.  1,  18,  45  L.  ed.  305,  405,  21  Sup. 
Ct.  Rep.  240;  New  York  ex  rel.  Schurz  y. 
Cook,  148  U.  8.  406,  37  L.  ed.  501,  13  Sup. 
Ct.  Rep.  645. 

(c)  Where  from  surrounding  words  and 
circumstances  it  is  apparent  that  the  legis- 
lature did  not  intend  the  exemption  to  pass 
to  the  successor. 

Phoenix  F.  ft  M.  Ins.  Co.  y.  Tennessee,  161 
U.  S.  174,  40  L.  ed.  660,  16  Sup.  Ct.  Rep. 
471;  Chicago,  B.  ft  K.  C.  R.  Co.  v.  Guffey 
(Chicago,  B.  ft  EL  C.  R.  Co.  y.  Missouri) 
122  U.  S.  561,  30  L.  ed.  1135,  7  Sup.  Ct. 
Rep.  1300;  Wilmington  ft  W.  R.  Co.  y.  Als- 
brook,  146  U.  S.  270,  36  L.  ed.  072,  13  Sup. 
Ct.  Rep.  72;  Chesapeake  ft  O.  R.  Co.  y. 
Miller,  114  U.  S.  176,  29  L.  ed.  121,  5  Sup. 
Ct.  Rep.  813;  East  Tennessee,  V.  ft  G.  R. 
Co.  y.  Hamblen  County,  102  U.  S.  273,  26 
L.  ed.  152;  Wilson  y.  Gaines,  103  U.  S.  417, 
26  L.  ed.  401;  Citizens'  Street  R.  Co.  y. 
Memphis,  53  Fed.  715;  Minot  y.  Philadel- 
phia, W.  ft  B.  R.  Co.  18  Wall.  206,  21  L.  ed. 
888;  Bancroft  y.  Wicomico  County,  121  Fed. 
178 


I  874,  affirmed  in  70  C.  C.  A.  287,  186  Fed. 

077. 

(d)  Where  the  intent  to  pass  the  immu- 
nity was  not  expressed  with  sufficient  dear* 
ness. 

Coyington  ft  L.  Tump.  Road  Co.  y.  Sand- 
ford,  164  U.  S.  578,  41  L.  ed.  560,  17  Sup. 
Ct.  Rep.  108;  Norfolk  ft  W.  R.  Co.  y.  Pendle- 
ton, 156  U.  S.  673,  30  L.  ed.  575,  15  Sup. 
Ct.  Rep.  413;  People's  Gaslight  ft  Coke  Co. 
y.  Chicago,  104  U.  S.  1,  48  L.  ed.  851,  24 
Sup.  Ct.  Rep.  520;  St.  Louis  ft  S.  F.  R. 
Co.  y.  Gill,  156  U.  S.  656,  30  L.  ed.  560, 
15  Sup.  Ct.  Rep.  484;  Morgan  y.  Louisiaaa» 
03  U.  S.  217,  23  L.  ed.  860. 

The  reluctance  of  the  courts  to  enforce 
contracts  of  exemption  because  relieyinip 
property  from  the  common  burden  which 
publie  policy  requires  shall  be  equally  borne 
has  no  just  application  to  the  case  now  be- 
fore the  court. 

Minot  y.  PhUadelphia,  W.  ft  B.  R.  Co.  1» 
WaU.  206,  225,  226,  21  L.  ed.  888,  804,  805; 
Morgan  y.  Louisiana,  03  U.  S.  217,  23  Lb 
ed.  860. 

Two  recent  cases  are  indistinguishable 
from  that  at  bar. 

Wright  y.  Central  of  Georgia  R.  Co.  236 
U.  S.  674,  50  L.  ed.  781,  35  Sup.  Ct.  Rep. 
471 ;  Wright  y.  Louisyille  ft  N.  R.  Co.  236 
U.  S.  687,  50  L.  ed.  788,  35  Sup.  Ct.  Rep. 
475. 

The  decision  of  the  state  court  is,  of 
course,  open  to  review  by  this  court,  for  the 
point  inyolved  is  that  the  New  Jersey  tax 
law  impairs  the  obligation  of  the  contract 
made  between  the  state  of  New  Jersey  and 
the  Morris  Canal  ft  Banking  Company,  on 
which  the  Lehigh  Valley  Railroad  Company,, 
a  corporation  of  the  state  of  Pennsylvania, 
on  taking  a  lease,  by  express  authority  of 
the  state,  had  a  right  to  rely.  In  such  a. 
case  this  court  must  exercise  its  independ- 
ent judgment. 

Douglas  y.  Kentucky,  168  U.  S.  480,  42 
L.  ed.  553,  18  Sup.  Ct.  Rep.  100. 

Eyen  if  it  had  been  adjudged  by  a  line  of 
previous  decisions  of  the  state  court  of  last 
resort  that  such  a  taxing  act  did  not  impair 
the  obligation  of  like  contracts,  the  point 
would  be  open  in  this  court.  A  fortiori 
must  this  be  so  when  the  writ  of  error  re- 
views a  decision  rendered  for  the  first  time 
in  the  yery  case  brought  up  by  the  writ. 

New  York  ex  rel.  Interborough  Rapid 
Transit  Co.  y.  Sohmer,  237  U.  S.  276,  50* 
L.  ed.  051,  35  Sup.  Ct  Rep.  540. 

Mr.  Robert  II.  McCarter  argued  the 
cause,  and,  with  Mr.  Edmund  Wilson,  At- 
torney General  of  New  Jersey,  filed  a  brief 
for  defendants  in  error: 

The  estate  enjoyed  by  the  Canal  Company 

aao  u.  8» 


191&. 


MORRIS  CANAL  ft  B.  GO.  t.  BAIRD. 


in  bunds  acquired  hj  Authority  of  the  char- 
ter, whether  by  grant  or  condemnation  or 
prescription,  was  of  the  whole  present  in- 
terest^ and  wa8»  notwithstanding  the  right 
of  the  state  to  take  at  the  end  of  one  hun- 
dred and  fifty  years,  equiyaknt  while  it 
laated  to  an  estate  in  fee  simple. 

Bamett  v.  Johnson,  15  N.  J.  Eq.  481; 
State,  Morris  Canal  ft  Bkg.  Co^  Prosecu- 
tors, y.  Brown,  27  N.  J.  L.  13;  United  States 
Pipe  Une  Co.  t.  Delaware,  L.  ft  W.  R.  Co. 
02  N.  J.  L.  254,  42  JjJiJL.  572,  41  AtL  759; 
Currie  v.  New  York  Transit  Co.  66  N.  J. 
£q.  313,  105  Am.  St.  Rep.  647,  58  Atl.  308. 

And  the  property  of  the  Canal  Company 
would  have  been  taxable  if  the  legislature 
had  not  exempted  it. 

Bridge  Proprietors  t.  State,  21  N.  J.  L. 
384,  affirmed  in  22  N.  J.  L.  593. 

lliis  was  in  effect  held  as  to  the  grant  of 
the  1867  basin  to  the  Canal  Company,  al- 
though such  basin  was  always  subject  to 
be  taken  over  by  the  state  at  the  end  of  the 
period  of  one  hundred  and  fifty  years  from 
the  date  of  the  charter. 

State,  Morris  Canal  ft  Bkg.  Co.,  Prosecu- 
tors, Y.  Haight,  36  N.  J.  h.  471. 

Under  binding  authorities,  both  state  and 
Federal,  this  charter  immunity  from  tax- 
ation, found  in  the  act  of  incorporation  of 
the  Morris  Canal  ft  Banking  Company,  con- 
stituted an  irrepealable  contract  between  the 
state  and  the  corporation. 

State  Assessors  t.  Morris  ft  E.  R.  Co.  49 
N.  J.  L.  193,  7  Atl.  826 ;  SUte  Singer  Mfg. 
Co.,  Prosecutor,  t.  Heppenheimer,  58  N.  J. 
L.  633,  32  LJl.A.643,  34  AtL  1061 ;  Hancock 
▼.  Singer  Mfg.  Co.  62  N.  J.  L.  289,  42  L.RJL 
852,  41  Atl.  846;  Cooper  Hospital  t.  Cam- 
den, 68  N.  J.  L.  691,  54  Atl.  419. 

*'Courts  are  astute,"  says  Mr.  Justice 
BroYi'n  of  this  court,  in  a  recent  case  in- 
volving the  effect  of  corporate  changes  on 
charter  contracts  for  immunity  from  taxa- 
tion, ''to  seize  upon  evidence  tending  to 
show  either  that  such  exemptions  [from  tax- 
ation] were  not  originally  intended,  or  that 
they  have  become  inoperatiTe  1^  changes  in 
the  original  constitution  of  the  companies." 

Yazoo  ft  M.  Valley  R.  Co.  t.  Adams,  180 
U.  S.  22,  45  L.  ed.  407,  21  Sup.  Ct.  Rep.  240. 
See  also  Sisters  of  Charity  v.  Cory»  73  N.  J. 
h,  600,  65  Atl.  500. 

An  exemption  from  taxation  is  a  privi- 
lege of  a  personal  character  entirely  distinct 
from  the  franchises  of  a  corporation,  and 
will  not  pass  by  a  transfer  under  legislative 
authority  empowering  the  corporation  to  as- 
sign and  transfer  its  franchises  and  prop- 
erty. 

State  Assessors  t.  Morris  ft  £.  R.  Co. 
49  N.  J.  L.  193,  7  Atl.  826;  Morgan  v.  Lou- 
isiana, 93  U.  S.  217,  23  L.  ed.  860;  Memphis 
ft  L.  R.  R.  Co.  T.  Railroad  Comrs.  (Memphis 
60  li.  ed. 


ft  L,  R.  R.  Co.  T.  Berry)  112  U.  a  609,  617, 
28  L.  ed.  837,  840,  5  Sup.  Ct.  Rqp.  299. 

The  legislative  intent  to  pass  an  exemp- 
tion from  taxation  to  a  lessee  or  grantee 
cannot  be  inferred  from  the  use  in  the  en- 
abling act  of  the  word  "privilege,"  and  un- 
less the  authorised  grant  includes  "immu- 
nity" or  "immunities,"  no  right  to  pass  the 
exemption  results. 

Phoenix  F.  ft  M.  Ins.  Co.  v.  Tennessee,  161 
U.  S.  174,  40  L.  ed.  660,  16  Sup.  Ct.  Rep. 
471;  Picard  v.  East  Tennessee,  V.  ft  G.  R. 
Co.  130  U.  S.  637,  32  L.  ed.  1051,  9  Sup. 
Ct.  Rep.  640;  Wilmington  ft  W.  R.  Co.  v. 
Alsbrook,  146  U.  S.  279,  36  !«.  ed.  972,  18 
Sup.  Ct  Rep.  72. 

The  absence  of  the  word  "immunity"  in 
the  enabling  l^slation  is  fatal  to  any  claim 
that  an  immunity  from  taxation  possessed 
by  a  lessor,  assignor,  or  grantor  company 
psssei  to  a  lessee,  assignee,  or  grantee. 

Picard  v.  East  Tennessee,  V.  ft  G.  R.  Co. 
130  U.  S.  637,  32  L.  ed.  1051,  9  Sup.  Ct. 
Rep.  640;  Chesapeake  ft  0.  R.  Co.  v.  Miller, 
114  U.  S.  176,  29  L.  ed.  121,  5  Sup.  Ct. 
Rep.  813;  Wilmington  ft  W.  R.  Co.  v.  Als^ 
brook,  146  U.  S.  279,  36  L.  ed.  972,  13 
Sup.  Ct.  Rep.  72. 

llie  capacity  of  the  Liehigh  Valley  Rail- 
road Company,  a  Pennsylvania  corpora- 
tion, to  take  as  lessee,  has  been  recognized 
by  the  court  of  errors  in  Stewart  v.  Lehigh 
Valley  R.  Co.  38  N.  J.  L.  505. 

The  effect  of  this  lease  in  perpetuity  is  a 
conveyance  in  fee. 

Black  v.  Delaware  ft  R.  Canal  Co.  24  N. 
J.  Eq.  465. 

By  the  lease  the  title  to  the  property 
described  therein,  so  far  as  its  transfer  was 
authorized  by  the  enabling  statute,  became 
vested  in  the  lessee  company. 

United  States  Pipe  Line  Co.  v.  Ddaware^ 
L.  ft  W.  R.  Co<  62  N.  J.  L.  261,  42  hJUL 
572,  41  Atl.  759. 

Property  under  perpetual  lease  is  to  be 
regarded,  for  purposes  of  taxation,  at  least, 
as  the  property  of  the  lessee. 

Ocean  Grove  Camp  Meeting  Asso.  v. 
Reeves,  79  N.  J.  L.  334,  75  Atl.  783,  affirmed 
in  80  N.  J.  t.  464,  79  Atl.  1119;  Huck  v. 
Chicago  ft  A.  R.  Co.  86  III.  352;  Com.  v. 
Nashville,  C.  ft  St.  L.  R.  Co.  93  Ky.  430, 
20  S.  W.  383;  Appeal  Tax  Ct.  v.  Western 
Maryland  R.  Co.  50  Md.  274. 

The  lease  of  May  4th,  1871,  must  be  lim- 
ited, whatever  its  language,  by  the  legisla-  * 
tive  authority  under  which  it  was  made; 
and  as  such  legislative  authority  is  extended 
only  to  property  and  franchises,  no  use  by 
the  parties  themselves  of  the  additional 
words  "rights  and  privileges"  can  broaden 
the  grant  so  as  to  include  the  immunity 
from  taxation  enjoyed  by  the  lessor  com- 

179 


12S-181 


6UPREUB  COUET  OP  THE  UNITED  STATES. 


panj,  even  if  thoM  words  b«  cooeeded  to  in- 
clud«  this  immunitj. 

8t«wkrt  V.  Lebigh  VwMej  B.  Co.  38  N.  J. 
L.  SOS. 

TtiE  inclusion  in  the  leased  property  ol 
"right!  u)d  privileges"  not  author ii«d  b; 
the  enabling  Bt«tute  did  not  invalidate  the 
leasts.     It  was  good  ao  far  as  authOTised. 

Hendee  v.  Pinkerton,  14  Allen,  3Bli  Olon- 
fnger  v.  PitUburgh  &  C.  R.  Co.  139  Fa.  13, 
21  Atl.  211;  BuUer  t.  Rahm,  46  Md.  S41. 

RochCflter  t.  Rocheater  R.  Co.  182  N.  Y. 
99,  70  L.R.A.  173,  74  N.  E.  9S3,  tbe  failure 
of  the  charter  to  include  the  words  "huc- 
cea»orB  and  assigns"  in  a  general  exemption 
was  held  sufficient  to  prevent  the  transferee 
of  tfas  property  from  claiming  the  exemp- 
tion. The  same  reasoning  was  adopted  by 
the  supreme  court  of  Texas  in  International 
ft  O.  N.  R.  Co.  V.  State,  76  Tex.  366.  12  S. 
W.  681(.  See  also  Lake  Drummond  Canal 
A  Water  Co.  t.  Com.  103  V*.  33T,  68  L.R.A. 
92,  49  S.  E.  SOe. 

Mr.  Robert  H.  McCartcr  alio  filed  a  sep- 
•rate  brief  tor  defendants  in  error : 

The  real  question  in  this  litigation  is  not 
whether  the  Canal  Company  had  a  contract 
of  exemption,  as  that  is  conceded;  but  the 
point  is,  did  that  exemption  pass  to  the 
Lehigh  Valley  Railroad  Company  when  it 
leased  the  property!  The  highest  court  of 
New  Jers^  has  held  it  did  not.  That  ad- 
judication ia  conclusive  upon  this  court. 

Jefferson  Branch  Bank  v.  Skelly,  1  Black, 
430,  IT  L.  ed.  173;  Douglas  v.  Kentucky, 
168  U.  B.  488,  42  L.  ed.  SC3,  18  Sup.  Ct. 
Rep.  IW. 

Mr.  Justice  Mclteynalds  delivered  tite 
opinion  of  the  court: 

The  court  of  errors  and  appeals  of  New 
Jersey  sustained  a  tax  tor  the  year  1006, 
levied  by  the  state  board  of  assesson,  under 
the  railroad  and  canal  tax  act  of  1884  and 
supplements  thereto,  upon  the  canal  and  ap- 
purtenances leased  by  the  Morris  Canal  & 
Banking  Company  [130J  to  the  Lehigh 
Valley  Railroad,  7G  N.  J.  L.  827,  71 
Atl.  328.  Plaintiffs  in  error  claim  the 
diartcr  of  the  leaaor  company  exempts  the 
assessed  property  from  taxation,  and  to 
subject  it  to  the  charge  in  question  would 
impair  the  obligation  of  that  contract  con- 
trary to  the  provisions  of  article  I.,  g  10, 
•  Federal  Constitution, 

The  Morris  Canal  t  Banking  Company 
waa  incorporated  by  a  special  act  of  the  New 
Jersey  legislature,  passed  in  December  31, 
)8i4,  for  tbe  purpose  of  constructing  a  ca- 
nal across  the  state.  This  statute  expressly 
declared  that  "said  canal  when  completed 
■hall  forever  thereafter  be  esteemed  a  public 
hi^way,"  gav*  the  stats  the  right  to  pur- 
JS« 


chase  It  after  ninety-nine  years  at  a  fair 
valuation,  and  specified  that  it  should  be- 
come the  sole  property  of  the  state  after  osm 
hundred  and  forty-nine  years;  but  no  power 
was  granted  the  corporation  either  to  sell 
or  lease  its  works.     Section  4  provides: 

"No  state,  county,  township,  or  other 
public  assessments,  taxes  or  charges  what- 
soever shall  at  any  time  be  laid  or  impoaed 
upon  the  said  canal  company,  or  upon  the 
stocks  and  estates  which  may  become  vested 
in  them  under  this  act;  but  tbis  exemptiMi 
shall  not  extend  to  any  other  estate  or  prop- 
erty of  the  company  than  such  as  U  pos- 
sessed, occupied  and  used  by  the  said  com- 
pany for  tbe  actual  and  necessary  purposea 
of  said  canal  navigation  under  this  act,  ac- 
cording to  the  true  intent  and  meaning 
thereof;     .    .    ." 

An  act  approved  March  14, 1871,  amended 
tbe  original  charter  as  follows; 

"It  shall  and  maybe  lawful  for  the  Morris 
Canal  A,  Banking  Company,  by  and  with  the 
consent  of  a  majority  in  interest  of  the 
stockholders  of  the  said  company,  expressed 
in  writing  and  duly  authenticated  by  affida- 
vit, [131]  and  filed  in  the  office  of  tbe  sec- 
retary of  state,  to  lease  the  canal  of  said 
company,  or  any  part  thereof,  with  all  or 
any  of  its  boats,  property,  works,  appurte- 
nances and  franchises,  to  any  person  or  per- 
sons, or  corporation,  either  perpetually  or 
for  such  shorter  time,  and  upon  sucb  rents 
and  agreements,  as  may  be  agreed  upon  be- 
tween the  said  contracting  parties,  and  it 
shall  be  lawful  for  the  lessee  or  lesaees  in 
said  lease  to  use  and  enjoy  the  said  prop- 
erty and  franchises  so  demised,  for  the  tenn 
in  said   lesse  mentioned." 

By  indenture  dated  May  4,  1871,  the  canal 
company  undertook  to  let  and  demise  to  tbe 
Lehigh  Valley  Kailrosd  its  entire  canal  and 
navigation  works,  together  with  all  corpo- 
rate franchises,  Hghta  and  privilege*,  other 
than  that  of  being  a  corporation,  to  have  and 
to  hold  unto  the  lessee,  its  successors  and  as- 
signs, perpetually.  (The  words  "rights  and 
privileges"  are  not  contained  in  the  amend- 
ment to  the  charter.)  Likewise  it  bargained 
and  sold  to  the  railroad  all  oi  its  cars, 
trucks,  boats,  etc.,  and  movable  property  of 
every  kind  and  description  except  certain 
records  and  specified  articles. 

Admitting  tiiat  the  provision  in  the  char- 
ter of  1824,  granting  exemption  from  taxa* 
tlon,  constituted  a  valid  contract  which  sub- 
eequent  legislation  could  not  impair,  the 
state  maintains  that  it  ceased  to  apply  after 
the  lease  and  sale  to  the  railroad,  and  the 
property  in  question  tben  l>ccame  subject  to 


The  doctrine  essential  to  the  solution  of 

the  question  in  issue  was  lucidly  stated  and 

the  pertinent  authorities  cited  in  Rochester 

SSS  U.  8. 


1916. 


MELLON  CO.  T.  McCAFFERTY. 


1S1-1S4 


B.  Go.  T.  Boehcster,  206  U.  &  236,  61  L.  ed. 
784»  27  Sup.  Ct.  Bep.  469*  Mr.  Justice  Moody 
deUToring  the  opinion.  Speekin^  in  req>eet 
of  the  timnef er  of  mn  immunity  from  the  ex- 
ercise of  goTemmental  power  granted  by 
eontract,  he  declared  (p.  247) : 

''Although  the  obligations  of  such  a  con- 
tract are  protected  by  the  Federal  Constitu- 
tion from  impairment  by  [138]  the  state, 
the  contract  itself  is  not  property  which,  as 
such,  can  be  transferred  by  the  owner  to  an- 
other, because,  being  personal  to  him  with 
whom  it  was  made,  it  is  incapable  of  assign- 
ment. The  person  with*  whom  the  contract 
is  made  by  the  state  may  continue  to  enjoy 
its  benefits  unmolested  as  long  as  he  chooses, 
but  there  his  rights  end,  and  he  cannot  by 
any  form  of  conveyance  transmit  the  contract 
or  its  benefits,  to  a  successor.  .  •  .  But 
the  state,  by  virtue  of  the  same  power  which 
created  the  original  contract  of  exemption, 
may  either  by  the  same  law,  or  by  subse- 
quent laws,  authorize  or  direct  the  transfer 
of  the  exemption  to  a  successor  in  title.  In 
that  case  the  exemption  is  taken  not  by  rea- 
son of  the  inherent  right  of  the  original 
holder  to  assign  it,  but  by  the  action  of  the 
state  in  authorizing  or  directing  its  transfer. 
As  in  determining  whether  a  contract  of 
exemption  from  a  governmental  power  was 
granted,  so  in  determining  whether  its  trans- 
fer to  another  was  authorized  or  directed, 
every  doubt  is  resolved  in  favor  of  the  con- 
tinuance of  the  governmental  power,  and 
dear  and  unmistakable  evidence  of  the  in- 
tent to  part  with  it  is  required." 
And,  after  a  review  of  former  opinions,  the 
conclusion  was  reached  that  a  transfer,  un- 
der legislative  authority,  of  "the  estate,  prop- 
erty, rights,  privileges,  and  franchises''  of 
one  corporation  to  another,  did  not  vest  in 
the  latter  the  freedom  from  exercise  of 
governmental  power  which  the  former  en- 
joyed under  its  charter. 

The  results  in  Wright  v.  Central  of  Geor- 
gia R.  Co.  230  U.  8.  674, 50  L.  ed.  781,  35  Sup. 
Ct.  Bep.  471,  and  Wright  v.  Louisville  k  N. 
B.  Co.  230  U.  8.  087,  690,  50  L.  ed.  788,  702, 
35  Sup.  Ct.  Bep.  475,  were  based  upon  the 
original  charters,  which  were  interpreted  as 
contemplating  and  permitting  subsequent 
transfers  without  subjecting  the  fee  to  taxa- 
tion. Neither  of  these  cases  modifies  the 
principles  announced  and  applied  in  the 
q>inion  quoted  from  above;  it  is  referred  to 
with  approval  in  the  latter  of  them. 

By  express  terms  the  charter  of  the  Mor- 
ris Canal  k  [133]  Banking  Company  limit- 
ed the  exemption  from  taxation  to  such 
property  "as  is  possessed,  occupied  and  used 
by  the  said  company  for  the  actual  and  nec- 
essary purposes  of  said  canal  navigation." 
This  language  must  be  strictly  construed 
under  the  settled  ruk,  notwithstanding  the 
•0  Ii.  ed. 


rights  of  purchase  and  ownership  secured  by 
the  state,  the  supposed  value  of  which,  it  is 
claimed,  was  so  unusual  that  a  more  liberal 
interpretation  should  be  adopted.  After 
transfer  to  the  railroad  the  assessed  prop- 
erty was  not  possessed,  occupied,  or  used  by 
the  canal  company;  and  the  exemption* 
therefore,  no  longer  applied,  unless  some  leg- 
islation plainly  authorized  or  directed  its 
transfer. 

Only  the  act  of  March  14,  1871,  can  b« 
relied  upon  to  show  such  authorization  or 
direction.  But  this  merely  permitted  the 
lease  of  "the  canal  of  said  company,  or  any 
part  thereof,  with  all  or  any  of  its  boats, 
property,  works,  appurtenances  and  fran- 
chises;" and,  as  clearly  pointed  out  in  the 
Bochester  Case,  an  exemption  from  taxation 
does  not  pass  under  a  valid  lease  or  sale  of 
corporate  property  together  with  appurt^ 
nances  and  franchises. 

We  find  no  error  in  the  judgment  of  the 
court  below,  and  it  is  accordingly  affirmed. 


[134]  MELLON  COMPANY,  PMT.  in  Err., 

V. 

CHABLES  McCAFFEBTY,  as  County 
Treasurer,  et  al. 

(8ee  S.  C.  Beporter's  ed.  134-130.) 

Error  to  state  court  —  decision  on  non- 
Federal  ground. 

A  decree  of  the  highest  court  of  a 
state  which  affirmed  a  decree  below,  dis- 
missing on  demurrer  the  bill  in  a  suit  to 
enjoin  the  collection  of  taxes,  rests  upon 
an  independent  state  ground  broad  enough 
to  sustain  it  whollv  irrespective  of  the  F^- 
eral  rights  asserted  under  U.  S.  Const.,  14th 
Amend.,  and  therefore  is  not  within  the 
appellate  jurisdiction  of  the  Federal  Su- 
preme Court,  where  both  the  state  courts 
neld  that  the  bill  stated  no  equity  because 
it  failed  to  allM;e  that  resort  had  been  had 
to  adequate  administrative  remedies  pro- 
vided by  the  state  laws  for  the  collection 
of  the  assessment,  although  some  of  such 

Note. — On  the  general  subject  of  writs 
of  error  from  United  States  Supreme  Court 
to  state  courts — see  notes  to  Martin  v. 
Hunter,  4  L.  ed.  U.  8.  07;  Hamblin  v. 
Western  Land  Co.  37  L.  ed.  U.  S.  207;  Be 
Buchanan,  30  L.  ed.  U.  8.  884;  and  Kipley 
V.  Illinois,  42  L.  ed.  U.  8.  008. 

On  what  adjudications  of  state  courts  can 
be  broiu;ht  up  for  review  in  the  Supreme 
Court  of  the  United  States  by  writ  of  error 
to  those  courts — see  note  to  Apex  Transp. 
Co.  V.  Garbade,  62  LJU^.  513. 

On  how  and  when  questions,  must  be 
raised  and  decided  in  a  state  court  in  order 
to  make  a  case  for  a  writ  of  error  from  the 
Supreme  Court  of  the  United  States — see 
note  to  Mutual  L.  Ins.  Co.  v;  McGrew,  63 
LJLA.  33. 

lai 


lM-188 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cot.  Temu, 


remedies  may  have  been  wrongfully  decided 
to  be  available. 

(For  other  eaeee,  tee  Appeal  and  Error,  1465- 
1528,  In  Digest  8np.  Ctri908.] 

[No.  27.] 

Submitted  October  22,  1016.    Decided  No- 
vember 29,  1015. 

IK  ERROR  to  the  Supreme  Court  of  the 
State  of  Oklahoma  to  review  a  decree 
which  affirmed  a  decree  of  the  District  Court 
of  Oklahoma  County,  in  that  state,  dismiss- 
ing on  demurrer  the  bill  in  a  suit  to  enjoin 
the  collection  of  taxes.  Dismissed  for  want 
of  jurisdiction. 

See  same  case  below,  88  Okla.  634,  135 
Pac.  278. 

The  facts  are  stated  in  the  opinion. 

Mr.  W.  A.  Ledbetter  submitted  the 
cause  for  plaintiff  in  error.  Messrs.  H.  L. 
Stuart  and  R.  R.  Bell  were  on  the  brief. 

Mr.  Gharles  J.  Kappler  submitted  the 
cause  for  defendants  in  error.  Messrs. 
John  Embry  and  Sam  Hooker  were  on  the 
brief. 

[136]  Mr.  Chief  Justice  White  delivered 
the  opinion  of  the  court: 

The  court  below  affirmed  a  decree  of  the 
trial  court,  dismissing  a  bill  filed  by  the 
plaintiff  in  error  to  enjoin  the  collection  of 
state,  county,  and  city  taxes  assessed  against 
it  for  the  year  1910.  38  Okla.  634,  135 
Pac.  278.  The  ground  for  relief  alleged  was 
that  the  assessment  had  been  unlawfully 
made  as  the  result  of  an  agreement  between 
the  city  assessor  and  the  county  board  of 
equalization,  with  the  approval  of  the  state 
auditor,  that  the  property  of  all  corpora- 
tions should  be  assessed  at  its  true  cash 
value  while  that  of  all  individuals  should 
be  assessed  at  only  60  per  cent  of  its  cash 
value.  The  bill  alleged  that  the  result  of 
the  assessments  so  made  was  to  give  rise 
to  such  inequality  and  discrimination  as 
to  make  the  assessment  illegal  under  the 
state  Constitution  and  laws,  and  also  to 
cause  it  to  be  repugnant  to  the  equal  pro- 
tection and  due  process  clauses  of  the  14th 
Amendment.  The  action  of  both  the  courts 
was  taken  in  disposing  of  a  general  de- 
murrer to  the  bill,  and 'both  held  that  the 
bill  stated  no  equity  because  it  failed  to 
allege  that  adequate  administrative  reme- 
dies which  were  provided  by  the  state  law 
for  the  correction  of  the  wrongful  valua- 
tion complained  of  had  been  resorted  to. 

As  it  is  not  disputed,  and,  indeed,  is, 
from  a  twofold  view,  indisputable,  that  the 
action  of  the  court  below  was  right  if  the 
premise  upon  which  its  ruling  was  based 
182 


be  accepted,  that  is,  the  existence  of  ample 
and  efficient  administrative  remedies  under 
the  state  law  and  the  failure  to  resort  to 
them  (Prentis  v.  Atlantic  Coast  Line  Co. 
211  U.  8.  210,  53  L.  ed.  150,  29  Sup.  Ct. 
Rep.  67;  Johnson  v.  Wells,  F.  &  Co.  this 
day  decided  [239  U.  S.  234,  post,  243, 36  Sup. 
Ct  Rep.  62] ) ,  it  follows  that  we  are  with- 
out jurisdiction,  since,  under  that  hypothe- 
sis, the  decree  below  would  rest  upon  an 
independent  state  ground  broad  enough  to 
sustain  it,  irrespective  of  the  questions  of 
Federal  right  asserted.  [137]  But  it  is 
urged  that  plain  error  was  committed  by  the 
court  below  in  its  ruling  as  to  the  state 
law,  since  some  of  the  remedies  under  that 
law  which  it  was  held  should  have  been  re- 
sorted to  for  the  purpose  of  correcting  the 
assessment  complained  of  were  not  so  avail- 
able. Although  the  error  thus  complained 
of  manifestly  concerns  a  state  question,  the 
argument  insists  that  we  have  jurisdiction 
to  consider  and  correct  it,  since  the  right 
to  do  so  is  inseparable  from  the  duty  to 
give  effect  to  the  Constitution.  We  are  of 
opinion,  however,  that  if,  for  the  sake  of 
the  argument,  the  proposition  be  conceded, 
and  every  remedy  which  it  insists  was 
wrongfully  decided  to  be  available  be,  upon 
the  hypothesis  stated,  put  out  of  view  and 
treated  as  not  existing,  nevertheless  there 
remain  remedies  provided  by  the  state  law 
embraced  by  the  ruling  below  which  would 
cause  that  ruling  to  rest  upon  independent 
state  grounds  broad  enough  to  sustain  it 
irrespective  of  the  Federal  rights  relied 
upon.  The  merest  outline  of  the  assessment 
laws  of  the  state  will  make  the  grounds  of 
this  conclusion  clear. 

Situated  in  a  municipality,  the  city  as- 
sessor was  the  officer  primarily  charged 
with  the  duty  of  assessing  the  property  in 
question,  and  that  officer,  in  conjunction 
with  the  mayor  or  president  of  the  board  of 
trustees  and  the  city  clerk,  composed  a  city 
board  of  equalization  with  ample  powers 
to  redress  all  individual  wrong  complained 
of  concerning  an  assessment,  and  with  au- 
thority to  take  steps  generally  to  equalize 
assessments.  Comp.  Laws  1909,  §  7616. 
From  the  adverse  action  of  this  board  upon 
complaint  made  a  right  of  appeal  existed 
to  the  county  board  of  equalization,  com- 
posed of  a  majority  of  the  county  commis- 
sioners. The  powers  of  such  board  were 
also  ample  to  redress  any  grievance  com- 
plained of.  Comp.  Laws  1909,  §  7617.  In 
addition  there  was  a  state  board  of  equal- 
ization having  general  authority  to  correct 
inequalities  between  counties;  in  other 
Words,  [138]  to  redress  wrongs  which  were 
more  extq^sive  in  character  than  those  aris- 
ing from  the  complaint  of  individuals  as  to 
their  particular  assessments.    Comp.  Laws 

9S9  V.  8. 


1015. 


OHIBNO  AH  BUI  t.  McGOT. 


188,  130 


1000,  §  7620.    From  the  aetion  of  neither 
ol   tiiese  adminifltratiTe   bodies  was  there 
any  method  of  review  given  prior  to  1010. 
In  that  year  the  statutes  were  re-enacted, 
the  principal  change  being  a  right  given 
to  review  the  action  of  the  county  board 
by  the  "county  court,  and  that  of  the  state 
board  by  the  supreme  court.    Chap.  73,  Ses- 
sion Laws  of  1010,  p.  148,  and  chap.  87, 
id.  p.  173.     The  error  of  state  law  which 
it  is  insisted  was  committed  by  the  court 
was  the  ruling  that  the  law  of  1910  was  in 
effect   for   the   purpose   of  the  prosecution 
of  an  appeal  as  to  the  assessment  in  ques- 
tion from  the  county  board  of  equalization 
to  the  county  court,  when  in  fact  such  rem* 
edy  could  not  have  been  pursued,  because, 
when  the  law  of  1010  went  into  effect,  the 
county  board  had  completed  its  work  under 
the  assessment  for  1010  and  had  adjourned 
sine  die.     But  conceding  this  to  be  true, 
the  court  below  ruled  that  under  the  act  of 
1910,  in  view  of  the  character  of  the  wrong 
complained  of  as  to  the  particular  assess- 
ment in  question,  there  was  power  vested 
in  the  state  board  of  equalization  to  hear 
complaint  concerning  it,  and  hence  the  duty 
to  invoke  its  action,  and,  if  it  was  adverse, 
to  appeal  from  that  body  to  the  supreme 
court  of  the  state, — a  right  which  could  have 
been  availed  of,  as  there  is  no  contention 
that  there  was  not  ample  opportunity  to  so 
do  after  the  act  of  1010  was  enacted  and 
went  into  effect.    Moreover,  a  like  situation 
arises  from  the  ruling  below  to  the  effect 
that  it  was  the  duty,  irrespective  of  the  re- 
enacting  act  of  1910,   under   the  original 
law,  to  have  complained  of  the  assessment 
to  the  city   board,   and   to   have   appealed 
from  its  adverse  action  to  the  county  board 
of   equalization.     To   avoid    this   difficulty 
in  the  argument  it  is  insisted  that  a  resort 
to  these  remedies  was  not  required  because 
they  would  have  been  unavailing,  in  view  of 
the  nature  [139]  of  the  wrong  complained 
oL    But  the  duty  to  resort  to  the  adequate 
remedies  provided  could  not  be  escaped  by 
assuming  that  if  they  had  been  resorted  to, 
the  wrong  complained  of  would  not  have 
been  rectified. 

As  it  follows  that,  under  any  possible 
view  of  the  case,  the  judgment  below  rested 
upon  propositions  of  state  law  adequate  to 
sustain  it,  wholly  irrespective  of  the  Fed- 
eral right  relied  upon,  it  results  that  we 
have  no  power  to  review,  and  the  writ  of 
error  must  be  dismissed  for  want  of  juris- 
diction. 

And  it  is  so  ordered. 
•0  L.  ed. 


CHIENG  AH  SUI,  Appt., 

V. 

HENBY  B.  McCOY,  Insular  Collector  of 
Customs  of  the  Philippine  Islands. 

(See  S.  C.  Beporter's  ed.  130-144.) 

Aliens  —  Chinese  exclusion  —  power  of 
insular  collector. 

1.  The  general  supervisory  authority 
of  the  insular  collector  of  customs  over 
the  enforcement  in  the  Philippine  Islands 
of  the  Federal  immigration  and  Chinese  ex- 
clusion acts  was  not  exceeded  by  his  action 
in  giving  to  the  board  of  special  inquiry 
provided  for  by  the  immigration  acts  the 
power  primarily  to  determine,  subject  to  his 
review,  the  right  of  persons  to  enter  the 
Philippine  Islands  under  the  Chinese  ex- 
clusion acts. 

[For  other  cases,  see  Aliens,  YI.  b.  In  Digest 
Sup.  Ct.  1908T] 

Constitutional  law  —  due  process  of  law 

—  notice  and  hearing  —  Chinese  ex* 

elusion. 

2.  A  Chinaman  refused  entry  into  the 
Philippine  Islands  has  no  ground  for  claim- 
ing that  he  was  not  given  Qie  hearing  which 
is  essential  to  afford  the  due  process  of  law 
secured  in  those  islands  by  the  act  of  July 
1,  1002  (32  Stat,  at  L.  601,  chap.  1360, 
Comp.  Stat.  1913,  §  3804),  where  the  board 
of  special  inquiry  reach^  its  decision  ad- 
verse to  his  right  to  land  after  a  hearing, 
and  twice  reheard  the  case  with  the  same 
result,  and  its  last  decision  was  affirmed  by 
the  insular  collector,  and  was  upheld  by 
the   Philippine   supreme   court   on   habeas 

corpus. 

[For  other  cases,  see  Constitutional  Law,  764- 
778,  in  Digest  Sup.  Ct  1008.] 

[No.  64.] 

Submitted  November  1,  1015.    Decided  No- 
vember 20,  1015. 

APPEAL  from  the  Supreme  Court  of  the 
Philippine  Islands  to  review  a  decree 
which  reversed  an  order  of  the  Court  of 
First  Instance  of  the  City  of  Manila,  re- 
leasing  on  habeas  corpus  a  Chinaman  held 
in  custody  subject  to  deportation.  Af- 
firmed. 

See  same  case  below,  22  Philippine,  36L 
The  facts  are  stated  in  the  opinion. 

Note. — ^As  to  what  constitutes  due  process 
of  law,  generally — see  notes  to  People  v. 
O'Brien,  2  L.RJL.  255;  Kuntz  v.  Sumption, 
2  ImRJl.  655;  Re  Gannon,  6  L.R.A.  350; 
Ulman  v.  Baltimore,  11  L.IUL  2^24;  Gil- 
man  V.  Tucktf,  13  L.R.A.  304;  Pearson  v. 
Yewdall,  24  L.  ed.  U.  8.  436;  and  Wilson  ▼. 
North  Carolina,  42  L.  ed.  U.  8.  866. 

On  notice  and  hearing  required  to  oon- 
stitute  due  process  of  law — see  notes  to 
Kuntz  V.  Sumption,  2  LJLA.  657;  Chauvin 
V.  Valiton,  3  L.R.A.  104;  and  Ulman  v. 
Baltimore,  11  L JLA.  226. 

ISS 


UO                           6UPB£ME  COUET  OF  TEE  UHITED  BIATE8.  Oat.  Tmm. 

Hr.  Clemmit  Ii.  Boavfi  Bubmitt«d  tbe  mony  of  appllcuit's  vitnewM,  eren  thongb 

eauM  for  Appellant:  It  «>•  HDContradieted. 

If  there  wu  no  evidence  to  lupport  the  Quock  Ting  t.  United  Statei,  140  U.  8. 

finding  that  the  petitioner  is  not  the  son  of  *17.  *20,   36   L.  ed.   601,   502,   11   8np.  Ct 

Ah  Boon,  a  fair  hearing  has  been  denied.  R«P-  733,  861;   Lm  Lung  t.  Patt«rK»n.  IM 

Uy  Kai  Hu  v.  McCoy,  24  Philippine,  152;  U.  S.  168.  46  L.  ed.  1108,  £2  Sup.  Ct.  Bep. 

Aug   Eng   Chong   t.   Collector   of   Cuatomi,  "6;  He  Jew  Wong  Loy,  01  Fed.  240;   Lm 

23   PhufppiBe,   814;    Ex  part.  Long  Lod(.  ^l"*  f^^ J;  ""'*^,  Stat^  36  C.  C.  A.  327, 

173  Fed.  208;   United  StTte.  «  rd!  Klein  SJ^Ii  *'"'„^,i*r,'"";'  'i  f.^1  1^' 

V    Willi.Tn«    180  Fed    B15    124  C    C   A    366  ^'^  ^'*  ''  '^'"***  ^*****'  *^  ^-  '^-  ^-  ^°*' 

oJr.  ]  ^-«   rT  ■;!.cT  .            1  n  ■  '  Jt«  ^^-  888;  Q"™^  Sue  T.  United  Statei, 

20e  Fed.  460 ;  United  State,  ex  rel.  Beinmann  „  ^   p  ^   ggg   ^g  |.^   3jg    ^^j^^  g^;^ 

T.  MartiB,  1B3  Fed.  708;   United  Statea  tx  ,   j^  gnen,  118  Fed.  442;  Ex  parte  Lom 

rel.   Freeman   t.   Williami,    176   Fed.   274;  Lock,   173   Fed.   214;    Kum   Sue  v.   Unit«l 

United  SUtes  t.  Chin  Len,  100  C.  C.  A.  810,  gtate*.  102  C.  C.  A.  648,  176  Fed,  370;  B« 

187   Fed.  544;   United  Statea  er  rel.  Gold-  Yim   Quock   Leong,   1   Haw.   Dirt.   Ct.   68; 

berg  V.   Williami,   204    Fed.   828;   N.   Jim  Tan  Beko  v.  CoUector  of  Cuatoma,  26  Philip- 

Quan  T.   UniUd  Statea,   127   C.   C.   A.  2S3,  pine,  264. 

210  Fed.  ei7.  If  it  doea  not  affirmatiTel7  appear  Uiat 

The  failure  to  confront  Ah  Soon  with  an  the  executive  officera  have  acted  in  wnne  tin- 

aUt^ed  contradictory  statement,  or  to  give  lawful  way  and  abused  their  author!^  and 

him  any  opportunity  to  explain  it,  is  not  diecretion,  their  finding  upon  the  question 

eompatUile  with  the  ordinary  principles  of  of  relationahip,  upon  the  eatablisfament  of 

fair  play.  which   by  the  applicant  hia  adminibility 

Ex  parte  Eeiauki  Sata,  216  Fed.  173;  Ex  depends,  must  be  deemed  to  be  eonelnsiVe, 

parte  Lew  Un  6hew,  217  Fed.  317;  Ex  parte  "nd  ia  not  subject  to  review  by  tbe  court*. 

Lam  Fui,  217  Fed.  466;  Hanges  v.  Whitfield,  United  Statea  v.  Ju  Toy,  IDS  U.  8.  253,  4» 

200  Fed.  676.  L.  ed.  1040,  23  Sup.  Ct.  Hep.  644;  Chin  Yow 

The  remark  of  an  inapector,  injected  into  v.  United  States,  208  I'.  S.  S,  62  L.  ed.  369, 

a  record  dealing  with  cerUin  points  covered  ^^  Sup.  Ct.  Rep.  201;  Tang  Tun  v.  Edsell. 

by  the  matter  in  controversy,  constitutes  no  223   U.  S,  673,  66  L.  ed.  606,  32  Sup.  Ct 

evidence  whataoever  of  the  facts  to  whicli  it  ^^P-  3^^- 

purports  to  relate.  This  was  not  a  judicial  but  an  adminia- 

Ei  parte  Lam  Fuk  Tak,  217  Fed.  468.  trative  proceeding,  which  technical  criminal 

This  holding  would  seem  to  be  somewhat  procedure  does  not  govern. 

analogous  to  deciaiona  to  the  efiTect  that  a  United  States  ex  rel.  Buccino  v.  William% 

so-called   certificate  of  discharge   iasued  by  190  fed.  807 ;  Re  Jem  Yuen,  188  Fed.  350j 

a   United    States   commisBioner    in   Chinese  ''»n8  'J"""  '■   Edseil,  223  U.  S.  673,  68  L. 

deporUtion   proceedings  is  not  evidence  of  "*■  ^^'  32  Sup.  Ct.  Rep.  363. 
such    adjudication     ( Ah     How    v.     United 

States,  103  U.  S.  65,  48  L.  ed.  610,  24  Sup.  ^'-   *^^'"'   Jurtice   Wltll*   delivered   tli* 

Ct.  Rep.  357;  Ex  parU  Lung  Foot,  174  Fed.  opln'""  "f  the  court: 

70),  or  of  the  tacts  on  which  the  commis-  Chleng    Ah    Soon,    a   Chinese    merchant 

doner's  alleged  finding  is  based   (Ex  parte  '''■'ding    in    Manila,    proposing    to    go    to 

Lung  Wing  Wun,  161  Fed.  211;   Ex  parte  China,  took  a  certificate  which  was  auscepti- 

Usc  Fock,  207  Fed.  686),  '''«   "*  being  used  to  identity  him  for  the 
purpose  of  re-entry   in  case  of  hia  return. 

Mr.  S.  T.  Ansel!  submitted  the  cauae  for  About  a  year  afterward,  July  10,  1010,  Ah 

appellee:  Soon  returned,  accompanied  by  two  persons 

The  burden  of  proof  is  upon  the  appli-  asserted  to  be  his  minor  sons,  one  Ah  Luy, 

cant  to  show  admisaibility.  gaii  to  be  twenty,  and  the  other.  Ah   Bui, 

Re  Moy  Quong  Shing,  125  Fed.  641;  Unit-  to   be   sixteen   years  of  age.     His  right  to 

ed  BUtea  v.  Too  Toy,  185  Fed.  838;   Chin  isnd  was  at  once  conceded,  but  the  right  of 

Yow  V.  United  SUtes,  208  U.  S.  8,  62  L.  ed.  the  two  others  being  queatroned,  the  inaular 

369,  28  Sup.  Ct.  Rep.  201 ;  Ah  How  T.  Unit-  collector    referred    the   matter    for    inquiry 

ed  Statea,  183  U.  S.  65,  76,  48  L.  ed.  618,  and   report  to  a  board  which  was  charg^ 

622,  24  Snp.  Ct  Rep.  367.  with  the  duty  of  considering  such  question. 

No  presumption  of  unfairness,  arbitrari-  At   once    this    board    heard   the   testimony 

nesa,  or  abuse  of  discretion  and  authority  offered  to  prove  the  right  to  admission  and 

can  arise  from  the  fact  alone  that  the  Immi-  concluded    that    Ah    Luy    had    establtabed 

gration   officiala  did  not  accept  the  teati-  such  right,  but  that  Ah  Sui  had  not.    An 

184  IS9  U.  8. 


1916. 


CHIENQ  AH  6UI  t.  MoOOT. 


140-143 


ai^>eal  was  prosecuted  to  the  collector, 
bat  before  the  matter  was  decided  by  him 
on  the  merits  a  rehearing  was  granted, 
presumably  by  the  board,  and  it  again 
heard  the  matter  on  July  23,  1910.  At 
the  r^earing  additional  testimony  was 
offered  by  Ah  Sui,  but  after  reexamination 
of  the  matter  and  considering  such  testi- 
mony, the  board  adhered  to  its  former  con- 
clusion. An  i^peal  was  taken  [141]  to  the 
collector,  and  once  more  before  it  was  de- 
cided a  second  rehearing  was  allowed,  and 
on  the  lOth  of  August,  1910,  after  hearing 
additional  testimony,  the  original  order  was 
again  reaffirmed.  This  last  decision  was 
on  September  3d,  1910,  affirmed  on  appeal 
by  the  insular  collector,  and  on  September 
15th  an  application  for  rehearing  was  re- 
fused and  Ah  Sui  remained,  therefore,  in 
the  custody  of  the  collector  for  deportation. 

At  once  he  applied  for  habeas  corpus 
to  the  court  of  first  instance  of  the  city 
of  Manila,  asserting  the  illegality  of  his 
detention  for  deportation  and  his  right  to 
land  as  a  minor  son  of  Ah  Soon,  on  the 
following  grounds:  (a)  An  entire  want 
of  power  in  the  insular  collector  to  have  re- 
ferred the  right  to  land  to  the  board  of 
inquiry,  and  the  resulting  absolutely  void 
character  of  the  proceedings,  whether  ap- 
pellate or  otherwise,  taken  thereunder;  (b) 
Even  upon  the  assumption  of  existence  of 
power,  the  absolutely  void  character  of  the 
action  of  the  board  and  the  collector  be- 
cause of  the  entire  disregard  by  both  of  the 
testimony  establishing  the  paternity  of  Ah 
Soon  and  the  resulting  right  of  Ah  Sui 
to  land.  Although  ruling  against  the  as- 
sertion of  want  of  power,  the  trial  court 
yet  granted  the  writ  of  habeas  corpus  and 
directed  the  release  of  the  applicant  on  the 
ground  of  a  gross  abuse  of  discretion  by 
the  board  and  the  collector  in  refusing  to 
give  effect  to  the  testimony  showing  the 
right  to  enter,  although  there  was  nothing 
in  the  proof  tending  to  the  contrary.  On 
appeal,  the  court  below,  after  reviewing 
the  testimony,  held  that  there  was  no 
ground  to  support  the  conclusion  reached 
by  the  trial  court  of  arbitrary  action  and 
abuse  of  discretion  by  the  board  and  the 
collector  in  passing  upon  the  right  to  land, 
and  therefore  reversed  the  order  releasing 
Ah  Sui,  thus  leaving  him  in  custody,  sub- 
ject to  deportation.    22  Philippine,  361. 

Our  jurisdiction  is  invoiced,  first,  upon  the 
theory  that  the  construction  of  statutes  of 
the  United  SUtes  is  necessarUy  [142]  in- 
volved in  the  assertion  of  the  want  of  all  au- 
thority of  the  insular  collector  of  customs 
to  have  appointed  the  board  which  primari- 
ly determined  the  right  to  admission,  and 
second,  an  assumed  violation  of  the  due 
40  L.  ed. 


process  of  law  secured  in  the  Philippine 
Islands  by  act  of  Congress,  arising  from 
the  action  taken  below  because  of  its  as- 
serted arbitrary  character,  eaused  by  the 
alleged  absolute  disregard  of  the  testimony 
establishing  the  right  to  enter,  and  the 
absence  of  any  testimony  to  the  contrary. 
We  come  to  dispose  of  these  contentions 
separately. 

1.  That  the  immigration  and  Chinese 
exclusion  laws  of  the  United  States  have 
been  by  act  of  Congress  carried  to  the 
Philippine  Islands  and  authorised  to  be 
there  put  into  effect  under  appropriate  leg- 
islation by  the  insular  government  is  not 
disputed.  That  such  government  has  put 
such  laws  into  effect,  and  in  doing  so  has 
in  express  terms  conferred  the  general 
supervisory  authority  required  for  that  pur- 
pose to  be  exerted  upon  the  insular  col- 
lector of  customs,  is  also  not  disputed. 
And  that  such  officer,  under  that  authority, 
has  provided  for  a  board  of  examiners 
primarily  to  determine,  subject  to  his  re- 
view, questions  arising  under  the  immigra- 
tion and  Chinese  exclusion  laws,  is  also 
not  disputed.  The  contention  is  based  upon 
the  supposed  repugnancy  to  the  act  of 
Congress  caused  by  the  action  of  the  col- 
lector in  giving  to  such  board  primary  au- 
j  thority  to  examine  under  the  Chinese  ex- 
clusion acts.  The  argument  is  that  al- 
though, under  the  immigration  acts,  provi- 
sion is  made  for  a  board  of  examiners, 
no  such  provision  is  found  in  the  Chinese 
exclusion  acts,  since  under  the  latter,  al- 
though an  examination  is  provided  for, 
it  is  left  to  be  conducted  under  rules 
and  regulations  adopted  by  the  appro- 
priate authority,  and  in  the  exercise  of 
that  power  in  the  United  States,  exam- 
ining agents,  and  not  an  examining  board 
or  boards,  are  provided  for  by  the  regula- 
tions. Upon  this,  and  this  alone,  is  the 
conclusion  rested  that  the  making  of  a 
primary  [143]  examination  under  the  ex- 
clusion acts  by  a  board  was  in  conflict  with 
the  United  States  statutes. 

The  extremity  of  the  argument  is  well 
illustrated  by  considering  the  extent  of  the 
administrative  power  conferred  by  the  in- 
sular government  upon  the  collector  in  dele- 
gating to  him  the  authority  to  enforce  the 
Chinese  exclusion  acts,  since  by  §  1  of  act 
No.  702  of  the  Philippine  Commission, 
enacted  March  17,  1903,  it  is  provided  that 
"the  collector  of  customs  for  the  Philippine 
Archipelago  is  hereby  authorised  and  direct- 
ed ...  to  employ  for  that  purpose 
the  personnel  of  the  Philippine'  customs 
service,  the  provincial  and  military  officers 
hereinafter  provided,  and  such  other  persons 
as  may  be  necessary."     But,   aside   from 


143,  144 


SUPREME  OOUEX  OF  THE  UNITED  STATES. 


OoT.  Tebm, 


this,  we  are  of  the  opinion  that  the  mere 
statement  of  the  supposed  conflict  answers 
itself,  since  there  is  no  room  for  real  con- 
tention that  there  was  a  want  of  power  in 
the  collector  to  appoint  the  board  instead 
of  an  agent  to  aid  him  in  the  discharge  of 
the  duties  devolving  upon  him.  And  we 
are  also  of  the  opinion  that  there  was  no 
groxuid  whatever  for  the  contention  that 
a  conflict  arose  between  the  act  of  Con- 
gress and  the  action  of  the  collector  be- 
cause the  board  selected  was  one  in  whom 
the  power  had  been  already  lodged  to  act 
under  the  supervision  of  the  collector  con- 
cerning matters  of  inmiigration. 

2.  So  far  as  concerns  the  assertion  that 
there  was  a  violation  of  the  due  process  of 
law  secured  in  the  Philippine  Islands  by 
act  of  Congress  both  because  of  the  want 
of  a  hearing  and  the  disregard  of  the  testi- 
mony, we  are  of  the  opinion  that  the  first. 
on  the  face  of  the  record,  is  completely 
answered  by  the  statement  we  have  made  of 
the  abundant  opportunity  which  was  afford- 
ed for  a  hearing,  of  the  rehearings  granted, 
and  of  the  reiterated  considerations  which 
resulted  by  the  board  and  the  collector; 
especially  in  view  of  the  judicial  considera- 
tion of  the  subject  of  the  complaint  made  in 
the  proceedings  which  culminated  [144]  in 
the  decree  which  is  before  us  for  review. 
As  to  the  charge  of  the  total  disregard  of 
all  the  testimony,  we  might  well  content  our- 
selves with  referring  to  the  opinion  of  the 
court  below ;  but,  in  -view  of  the  character 
of  the  case,  we  say  that,  from  an  exam- 
ination of  the  record,  we  think  such  con- 
tention is  devoid  of  all  merit. 

Affirmed. 


GEORGE  W.  NORTON,  as  Executor  and 
Trustee  of  the  Estate  of  George  W.  Nor- 
ton, Deceased,  Appt., 

V. 

ROBERT  B.  WHITESIDE  and  Andrew  J. 

Tallas. 

(See  S.  C.  Reporter's  ed.  144>156.) 

Appeal  —  from  circuit  court  of  appeals 
—  diverse  citizenship  case. 

The  jurisdiction  of  a  Federal  district 
court  over  a  suit  by  an  owner  of  land  on 
the  Minnesota  side  of  a  stretch  of  water 
near  the  upper  end  of  Lake  Superior 
against  the  owners  of  land  on  the  Wis- 
oonsin   side   to   enforce   complainant's   as- 


serted riparian  rights  from  the  shore  out  to 
a  new  navigable  channel  constructed  in  the 
improvement  of  navigation  by  the  United 
States  cannot  be  said  to  have  rested  upon 
any  assertion  of  Federal  right  irrespective 
of  diverse  citizenship,  so  as  to  Justify  an 
appeal  to  the  Federal  Supreme  dourt  from 
a  decree  of  the  circuit  court  of  appeals,  de- 
spite allegations  in  the  bill  that  both  par- 
ties acquired  title  from  the  United  States, 
and  references  to  the  organization  of  the 
Northwest  Territory,  and  the  general  intent 
of  Congress  to  preserve  free  navigation. 
[For  other  cases,  see  Appeal  and  Error,  76ft- 
784,  in  Digest  Snp.  Ct.  1008.] 

[No.  66.] 

Argued  November  4  and  5,  1015.    Decided 
November  29,  1015. 

APPEAL  from  the  United  States  Circuit 
Court  of  Appeals  for  the  Eighth  Cir- 
cuit to  review  a  decree  which  reversed,  with 
directions  to  dismiss  the  bill,  a  decree  of 
the  Circuit  Court  for  the  District  of  Min- 
nesota in  favor  of  complainant  in  a  suit  to 
enforce  asserted  riparian  rights.  Dismissed 
for  want  of  jurisdiction. 

See  same  case  below,  45  L.RJL(N.S.) 
112,  123  C.  C.  A.  313,  205  Fed.  6. 

The  facts  are  stated  in  the  opinion. 

Mr.  Jed  Ij.  Washburn  argued  the  cause, 
and,  with  Messrs.  William  D.  Bailey,  Oscar 
Mitchell,  and  Albert  C.  GiUette,  filed  a  brief 
for  appellant. 

Messrs.  Luther  C.  Harris  and  Alfred 
Jaques  argued  the  cause,  and,  with  Mr. 
Theodore  T.  Hudson,  filed  a  brief  for  appel- 
lee Robert  B.  Whiteside: 

Some  right,  title,  privilege,  or  immunity, 
dependent  upon  the  construction  of  the  Con- 
stitution, or  some  law  or  treaty,  must  be 
relied  on,  in  order  to  raise  a  purely  Federal 
question. 

Muse  V.  Arlington  Hotel  Co.  168  U.  S. 
430,  42  L.  ed.  531,  18  Sup.  Ct.  Rep.  100. 

Mere  general  allegations  that  the  con- 
struction of  some  law  or  the  Constitution 
are  involved  are  not  sufficient.  They  must 
be  based  upon  facts  clearly  alleged  in  the 
complaint. 

Budzisz  V.  Illinois  Steel  Co.  170  U.  S. 
41,  42  L.  ed.  041,  18  Sup.  Ct.  Rep.  503. 

The  question  as  to  whether  the  jurisdic- 
tion depended  on  diverse  citizenship  alone, 
or  on  other  grounds  as  well,  must  be  de- 


NoTB. — On  appellate  jurisdiction  of  Fed- 
eral Supreme  Court  over  circuit  coiu^s  of 
appeals — see  notes  to  Bagley  v.  General  Fire 
ifxtinguisher  Co.  6?  L.  ed.  U.  S.  605;  and  St. 
Anthony's  Church  y.  Penn^hrania  R.  Co. 
60  L.  ed.  U.  S.  1110. 

Generally,  as  to  diverse  citizenship  as 
ground  of  Federal  jurisdiction — see  notes 
186 


to  Seddon  v.  Virginia,  T.  &  C.  Steel  &  I. 
Co.  1  L.R.A.  108;  Myers  v.  Murray,  N.  & 
Co.  11  L.RAl.  216;  Emory  v.  Greenough,  1 
L.  ed.  U.  S.  640;  Strawbridge  v.  Curtiss, 
2  L.  ed.  U.  S.  435;  McDonald  v.  Smalley,  7 
L.  ed.  U.  S.  287;  and  Roberto  v.  Lewis,  36 
L.  ed.  U.  6.  570. 

239  V.  S. 


1919. 


KOKXON  V.  WHITESIDE. 


145-147 


termined  from  the  plaintiiTt  itatemeiit  of 
iiit  own  came  of  action  as  set  forth  in  the 
bill,  regardless  of  questions  that  may  have 
been  brought  into  the  suit  by  answer,  or  in 
4he  course  of  the  subsequent  proceedings. 

Colorado  Ceut.  Consol.  Min.  Co.  v.  Turek, 
150  U.  S.  138,  37  L.  ed.  1030,  14  Sup.  Ct. 
Rep.  35;  Tennessee  t.  Union  k  Planters' 
Bank,  152  U.  S.  464,  38  L.  ed.  511,  14  Sup. 
Ct  Rep.  Cj4;  Devine  y.  Los  Angeles,  202 
U.  8.  313,  333,  50  L.  ed.  1046,  1068,  26 
Sup.  Ct.  Rep.  652. 

It  is  not  enough  that  grounds  of  juris- 
diction oth&t  than  diverse  citizenship  may 
be  inferred  argumentatively  from  the  state- 
stents  in  the  bill,  for  jurisdiction  cannot 
rest  on  any  ground  that  is  not  affirmatively 
and  distinctly  set  forth. 

Hanford  v.  Davies,  163  U.  8.  273,  41  L^ 
ed.  157,  16  Sup.  Ct  Rep.  1051;  MounUin 
View  Min.  ft  Mill  Co.  v.  McFadden,  180 
U.  S.  533,  45  U  ed.  656,  21  Sup.  Cl.  Rep. 
488;  Shulthis  v.  McDougal,  225  U.  S.  565, 
56  L.  ed.  1205,  32  Sup.  Ct  Rep.  704. 

A  suit  to  enforce  a  right  whieh  takes  its 
origin  in  the  Uws  of  the  United  States  is 
not  necessarily,  or  for  that  reason  alone, 
one  arising  under  those  laws,  for  a  suit  does 
not  so  arise  unless  it  really  and  substan- 
tislly  involves  a  controversy  respecting  the 
validity,  effect,  or  construction  of  such  laws, 
upon  the  determination  of  which  the  result 
depends. 

Blackburn  T.  Portland  Gold  Min.  Co.  175 
U.  S.  571,  44  L.  ed.  276,  20  Sup.  Ct  Rep. 
222,  20  Mor.  Min.  Rep.  358;  Florida  C.  ft 
P.  R.  Co.  V.  Bell,  176  U.  S.  321,  44  L.  ed. 
486,  20  Sup.  Ct  Rep.  309;  Shoshone  Min. 
Co.  V.  Rutter,  177  U.  S.  505,  44  L.  ed. 
864,  20  Sup.  Ct  Rep.  726. 

Messrs.  Daniel  G.  Cash  and  John  B. 
Richards,  Jr.,  filed  a  brief  for  appellee  An- 
drew J.  Tallas. 

Mr.  Chief  Justice  THilte  delivered  the 
opinion  of  the  court: 

The  appellant,  who  was  complainant  be- 
low, as  the  owner  of  certain  shore  land 
abutting  on  a  stretch  of  water  [146]  in  or 
near  the  upper  end  or  far  corner  of  Lake  Su- 
perior, from  one  point  of  view  sued  to  quiet 
his  title  to  the  whole  or  a  part  of  a  certain 
island  which  had  emergjd  from  the  waters 
in  front  of  his  land,  or,  considered  from  the 
same  point  of  view  in  a  broader  aspect  to 
protect  his  asserted  riparian  rights  in  the 
submerged  land  in  front  of  his  shore  prop- 
erty. The  defendants,  who  are  appellees, 
were  owners  or  possessors  either  of  prop- 
erty on  the  opposite  shore  or  of  the  wliole 
or  part  of  the  emerged  island,  and  the  con- 
troversy resulted  from  a  difference  between  i 
the  parties  as  to  the  character  and  extent  * 
40  li.  ed. 


of  their  riparian  rights  and  as  to  the  own- 
ership of  the  island  which  had  emerged  in 
the  stretch  of  water  between  the  two  shores. 
The  district  court  upheld  the  theory  of  the 
existence  in  the  complainant  of  the  riparian 
rights  asserted  by  him,  and  therefore  award- 
ed relief  upon  that  basis  except  as  to  a 
portion  of  the  emerged  island,  as  to  which 
it  gave  no  relief  because,  in  consequence  of 
adverse  possession  by  one  of  the  defendants, 
it  was  considered  there  was  an  adequate 
remedy  at  law  and  consequently  no  right  to 
equitable  relief.  188  Fed.  356.  On  appeal 
the  court  below,  not  approving  the  full  char- 
acter or  extent  of  the  riparian  rights  assert- 
ed by  the  complainant  and  recognized  by 
the  trial  court,  reversed,  with  directions  to 
dismiss  the  biU  (45  L.ItA.(N.S.)  112,  123 
C.  C.  A.  313,  206  Fed.  5),  and  it  U  in 
eonsequence  of  an  appeal  from  that  decree 
that  the  case  is  now  before  us. 

A  motion  to  dismiss  upon  ths  ground 
that  the  decree  appealed  from  is  beyond  our 
competency  to  review  because  made  final 
under  §  128  of  the  Judicial  Code  (36  SUt 
at  L.  1133,  chap.  231,  Comp.  SUt  1913, 
§  1120)  requires  to  be  disposed  of.  To  test 
its  msrits  we  must  first  ascertain  whether 
the  jurisdiction  of  the  district  court  was 
invoked  solely  on  the  ground  of  diverse 
citizenship.  St  Anthony's  Chureh  v.  Penn- 
sylvanU  R.  Co.  237  U.  S.  575,  577,  59 
L.  ed.  1110,  1122,  86  Sup.  Ct  Rep.  729,  and 
eases  cited.  That,  taking  the  face  of  the 
bill  from  the  point  of  view  of  mere  form 
of  statement,  diverse  citizenship  was  not 
the  only  ground  [147]  of  jurisdiction  relied 
upon,  is  apparent,  since  the  bill,  besides  di- 
versity of  citizenship,  alleged  that  the  cause 
of  action  was  one  arising  under  the  Consti- 
tution and  the  laws  of  the  United  Ststes. 
This,  however,  does  not  suffice  to  solve  the 
question,  since  it  is  settled  that  a  mere  for- 
mal statement -to  that  effect  is  not  enough  to 
establish  that  the  suit  arises  under  the  Con- 
stitution and  laws  of  the  United  States, 
but  that  it  must  appear  that  "it  really  and 
substantially  involves  a  dispute  m  contro- 
versy respecting  the  validity,  construction, 
or  effect  of  some  law  of  the  United  States, 
upon  ths  determination  of  which  the  result 
depends.  And  this  must  appear  not  by 
mere  inference,  but  by  distinct  averments 
according  to  the  rules  of  good  pleading." 
Hull  V.  Burr,  234  U.  S.  712,  720,  58  L.  ed. 
1557,  1561,  34  Sup.  Ct  Rep.  892,  and  au- 
thorities there  cited.  Before  coming  to  the 
text  of  the  complaint,  to  understandingly 
test  whether  it  fulfils  these  requirements  we 
give  the  merest  outline  of  the  condition  out 
of  which  the  controversy  grew  and  to  which 
the  complaint  related. 

The  boundary  line  of  WIsoonsin  under 
its  «Mbling  acty  starting  from  a  designated 

1S7 


H7-150 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Temm, 


point,  ran  "through  the  center  of  Lake 
Superior  to  the  mouth  of  the  St.  Louis 
rirer;  thence  up  the  main  channel  of  said 
river  to  the  first  rapids  in  the  same/'  etc. 
And  the  boundary  line  in  one  respect  of 
Minnesota  from  the  point  where  it  inter- 
sected with  the  St.  Louis  river  followed  the 
main  channel  of  that  river  "to  and  through 
Lake  Superior,  on  the  boundary  line  of  Wis- 
consin  and  Michigan,  until  it  intersects  the 
dividing  line  between  the  United  States  and 
the  British  Possessions."  From  the  point 
of  intersection  where  it  first  becomes  the 
boundary  of  the  states  of  Wisconsin  and 
Minnesota,  in  its  flow  towards  Lake  Su- 
perior, the  St.  Louis  river  approaches  Lake 
Superior  in  the  direction  of  a  large  bay  or 
indentation  therein.  From  one  point  of 
view  the  river,  at  once  leaving  the  fast 
land,  empties  into  and  is  immediately  ab- 
sorbed in  this  bay.  From  another,  [148] 
the  river,  before  it  empties  into  the  lake,  ex- 
pands into  a  stretch  of  shallow  water  con- 
tained within  the  north  or  Minnesota  shore, 
upon  which  is  Duluth,  and  the  south  or 
Wisconsin  shore,  upon  which  is  the  city  of 
Superior,  through  which  shallow  stretch  a 
tortuous  but  navigable  channel  curvingly 
continues  to  flow  until,  by  a  passage  through 
an  intervening  bar,  the  river,  emptying  into 
the  bay,  merges  its  existence  with  that 
of  the  lake.  We  say  tortuous  channel  be- 
cause the  banks  on  either  side  of  the  flange- 
like stretch  of  water  are  not  symmetrical, 
but  are  indented  with  various  bays  of  di- 
vergent shape  and  expanse,  and  the  water 
itself  is  irregularly  interspersed  with  is- 
lands or  flats  which  deflect  the  channel  we 
have  described  and  cause  it  greatly  to 
meander  as  it  proceeds  to  its  ultimate  desti- 
nation in  the  bay  through  the  bar  in  ques- 
tion. It  will  thus  be  seen  that  the  differ- 
ence between  the  two  points  of  view  is  this: 
that  one  treats  the  lake  as  embracing  the 
expanded  though  shallow  stretch  of  water 
in  question,  and  the  other  considers  the 
shallow  stretch  of  water  as  a  part  of  the 
river  until  the  point  is  reached  where,  tra- 
versing the  bar,  the  lake  and  river  are 
completely,  and  beyond  room  for  any  possi- 
ble question,  united. 

On  the  Minnesota  or  north  shore  of  this 
shallow  stretch  pf  water  the  complainant 
owned  land.  The  channel  flowing  through 
the  stretch  of  water  as  it  approached  the 
complainant's  land  curved  towards  the  Min- 
nesota shore,  and  therefore,  in  passing  in 
front  of  that  land,  was  nearer  the  north, 
or  Minnesota,  shore.  In  the  stretch  of  water 
Ibearly  opposite  the  complainant's  land,  but 
over  towards  the  south,  or  Wisconsin,  shore, 
there  was  a  large  island  known  as  Big  is- 
land, admittedly  in  the  state  of  Wisconsin, 
owned  by  Whiteside,  one  of  the  defendants, 
J3S 


and  about  2,000  feet  lay  between  the  oaUr 
shore  of  this  island  and  the  oomplainaafs 
land  on  the  northern  shore.  In  the  inter- 
vening space  between  the  channel  and  this 
[149]  island,  and  therefore  on  the  tootli, 
or  Wisconsin,  side  of  the  channel,  there 
gradually  emerged  a  smaller  island. 

It  having  been  determined  to  improve  the 
navigation  in  the  channel  through  the 
stretch  of  water  in  question,  the  plans  to 
accomplish  that  purpose  were  approved  by 
the  Secretary  of  War  in  1899,  and  in  virtue 
of  an  appropriation  by  Congress  the  work 
under  the  plans  was  carried  out  by  the 
United  States  between  the  years  1899  and 
.1002.  It  is  not  necessary  for  the  elucida- 
tion of  the  averments  of  the  bill  to  do  more 
than  say  that  the  carrying  out  of  this  work 
resulted  in  the  creation  of  a  new  navigable 
channel  which,  in  passing  through  the 
stretch  of  water,  instead  of  swinging 
towards  the  north,  or  Minnesota,  shore  in 
front  of  the  complainant's  land,  curved  in 
the  other  direction,  and  therefore  ap- 
proached nearer  the  Wisconsin  shore  than 
did  the  old  channel.  In  doing  so  it  con- 
sequently reached  or  struck  the  emerged 
island  of  which  we  have  spoken  near  its 
Wisconsin,  or  south,  side,  and,  cutting 
through  it,  virtually  put  the  new  and  en- 
larged channel  on  the  Wisconsin  side  of 
such  emerged  island.  What  remained  of 
the  island  thereafter  hence  lay  between  the 
newly  created  channel  and  the  lands  of  the 
complainant  on  the  north,  or  Minnesota^ 
shore.  In  other  words,  as  the  result  of  the 
creation  of  the  new  channel  the  lands  of 
the  complainant,  to  the  extent  that  the 
emerged  island  accomplished  that  result, 
were  separated  from  the  new  channel.  In 
the  performance  of  the  work  it  may  be  con- 
ceded that  in  cutting  through  the  emerged 
or  small  island  the  excavated  earth  was 
largely  dumped  on  the  surface  of  the  island 
towards  the  Minnesota  shore,  and  that, 
either  because  of  the  washing  of  this  earth 
into  the  old  channel,  or  the  sedimentary 
deposit  caused  by  the  slackening  of  the  ve- 
locity of  the  water  flowing  through  it,  the 
old  channel  opposite  the  land  of  the  com- 
plainant became  not  suitable  for,  or  more 
diflScult  of,  navigation. 

In  view  of  this  situation  we  come  to  con- 
sider the  bill,  [160]  its  averments,  and  the 
light  thrown  on  them  by  the  relief  prayed, 
in  order  to  determine  whether,  in  any  sub- 
stantial manner  whatever,  it  involved  the 
construction  or  application  of  the  Constitu- 
tion or  laws  of  the  United  States  within  the 
criteria  embraced  by  the  established  rule 
which  we  at  the  outset  stated.  Instead  d 
following  the  order  of  the  twenty-four  pani- 
graphs  which  the  bill  contains,  we  rear- 
range and  group  them  under  five  headings* 

2S9  V.  ft. 


1915. 


NORTON  ▼.  WHITESIDE. 


150-152 


omitting  many  Tedundancies  of  ttatement, 
bat  leaying  out  nothing  which  can  throw 
light  upon  the  cause  of  action  relied  upon. 
•<a)  The  parties. — ^The  complainant  was 
alleged  to  be  a  citizen  of  Kentucky,  and  the 
defoidants,  Whiteside,  Alezand^,  and  Tal- 
las,  were  alleged  to  be  citizens  of  the  state 
iA  Minnesota  and  inhabitants  of  the  district 
in  which  the  suit  was  brought. 

(b)  The  grievaBces  oomplained  of. — It 
was  alleged  that  the  complainant  owned 
land  under  patents  from  the  United  States 
on  the  Minnesota  side  of  the  stretch  of 
water  at  the  point  to  which  we  have  re- 
ferred, that  the  defendant,  Whiteside,  under 
title  acquired  also  from  the  United  States, 
owned  land  on  the  Wisconsin  side.  Big  is- 
land, that  Alexander,  either  in  his  own 
right  or  in  connection  with  Whiteside, 
claimed  some  land  on  the  Wisconsin  side 
and  resulting  riparian  rights,  and  that  Tal- 
las  had  taken  possession  of  a  part  of  the 
small  or  emerging  island,  erected  a  small 
structure  thereon,  and,  without  right  in 
law,  was  asserting  ownership  therein,  the 
land  never  having  been  disposed  of  by  pub- 
lic authority.  It  was  averred  that  both 
Whiteside  and  Alexander,  by  virtue  of  their 
shore  ownership,  were  asserting  riparian 
rights  crossing  the  new  or  government  chan- 
nel to  the  old  or  original  channel,  embrac- 
ing what  remained  of  the  emerged  island, 
and  that  Tallas,  by  virtue  of  his  posses- 
sion of  the  island  which  remained,  was  as- 
serting the  right  to  hold  it  as  owner. 

(c)  The  rights  asserted. — ^Averring  that 
the  stretch  of  water  was  a  part  of  Lake 
Superior,  in  substance  it  was  [151]  as- 
serted that  as  the  complainant  owned  shore 
land  on  the  Minnesota  side,  there  existed 
riparian  rights  extending  out  to  the  center 
of  the  channel  flowing  through  the  stretch  of 
water,  securing  to  the  shore  owner  the  con- 
sequent right  of  direct  access  to  such  chan- 
nel, and  this  right,  it  was  in  substance  al- 
leged, embraced  the  power  not  only  to  ex- 
tend to  the  old  channel,  but  to  the  new 
navigable  channel  constructed  in  improve- 
ment of  navigation  by  the  United  States, 
and  to  enjoy  riparian  rights  coterminous 
therewith,  and  that  therefore  the  asserted 
rights  by  Whiteside,  Alexander,  and  Tallas 
were  in  conflict  with  such  right  upon  the 
part  of  the  complainant,  and  cast  a  cloud 
upon  his  title,  giving  him  the  right  to  equi- 
table relief. 

(d)  The  legal  grounds  asserted  as  the 
basis  of  the  relief  prayed. — The  bill  alleged 
the  historical  fact  of  the  original  owner- 
ship by  Virginia  of  the  territory  in  which 
the  lands  in  controversy  were  embraced,  of 
its  passing  to  the  Oon  federation  as  a  part 
of  tiie  vast  domain  eoded  by  Virginia,  of 
tte  adoptiofi  of  the  Northwest  Territory  or* ' 
«•  Ii.  ed. 


dinance  in  1787,  the  stipulation  contained 
in  that  ordinance  that  "the  navigable  waters 
leading  into  the  Mississippi  and  St.  Law- 
rence [rivers],  .  •  .  shall  be  common 
highways  and  forever  free  as  well  to  the 
inhabitants  of  the  said  Territory  as  to  the 
citizens  of  the  United  States  and  those  of 
other  states  that  may  be  admitted  into  the 
Confederacy,  without  any  tax,  impost  or 
duty  therefor."  [1  Stat,  at  L.  52,  note.] 
The  bill  further  referred  to  the  act  of  Con- 
gress of  May,  1796,  providing  for  the  sale 
of  lands  within  the  Northwest  Territory, 
including  the  lands  in  question,  reciting  the 
provision  therein  "that  all  navigable  rivers 
within  the  territory  to  be  disposed  of  by 
virtue  of  this  act,  shall  be  deemed  to  be  and 
remain  public  highways  and  that  in  all 
cases  where  the  opposite  banks  of  any 
stream,  not  navigable,  shall  belong  to  dif- 
ferent persons,  the  stream  and  the  bed 
thereof  shall  become  common  to  both."  [1 
Stat,  at  L.  468,  chap.  29,  9  9,  Comp.  Stat. 
1913,  9  4918.]  It  alleged  the  subsequent 
carving  out  of  said  territory  of  the  states 
of  Ohio,  Indiana,  Michigan,  [152]  Wiscon- 
sin, and  part  of  Minnesota,  and  the  reserva- 
tion in  the  enabling  acts  preserving  the 
navigable  waters  bordering  upon  the  same  as 
common  highways,  and  extending  concurrent 
jurisdiction  to  the  states  bordering  thereon. 
Proceeding,  the  bill  alleged  the  boundaries 
of  the  two  states  of  Wisconsin  and  Minne- 
sota, as  stated  in  the  enabling  acts  to  which 
we  have  referred,  including  the  line  of  the 
main  channel  of  the  St.  Louis  river  and  the 
center  of  Lake  Superior  at  the  points  and 
as  described  in  the  statement  which  we 
have  previously  made.  It  alleged  that, 
under  the  laws  of  Minnesota,  the  riparian 
rights  extending  to  the  center  of  the  main 
navigable  channel  were  valid  as  asserted  by 
the  complainant,  and  in  practice  had  been 
recognized  by  the  exercise  of  taxing  and 
other  powers.  So  far  as  the  United  States 
was  concerned,  growing  out  of  the  aver- 
ments as  to  the  formation  of  the  Northwest 
Territory  and  of  the  states  just  referred 
to,  it  was  alleged: 

"That  in  the  preservation  of  public  rights 
on  such  navigable  waters,  where  the  same 
constitute  state  boimdaries,  it  was  the  in- 
tent of  the  Federal  government  and  of  the 
states  to  forever  maintain  and  preserve  the 
rights  of  the  respective  states  and  the  citi- 
zens thereof,  to  have  access  to  the  navigable 
and  navigated  channels  of  such  boundary 
waters,  and  among  the  most  ancient  and 
important  rights  of  private  owners,  inci- 
dental to  the  ownership  of  the  shore  lands 
abutting  upon  such  boundary  waters,  is  the 
right  to  wharf  out  to  and  have  access  to  the 
navigable  and  navigated  channel  of  such 
waters  from  such  shore  lands,  and  to  have 

189 


152-156 


SUPREME  COURT  OF  THE  UNITED  STATES. 


OOT.  Tknc. 


connection  from  Buch  fhore  lands,  through- 
out the  extent  thereof,  with  commerce  upon 
such  navigable  and  navigated  part  or  chan- 
nel of  such  waters,  subject  always  to  the 
paramount  control  over  the  whole  of  such 
waters  by  the  United  States." 

It  was  charged  that  the  emerging  of  the 
small  island  opposite  the  land  of  the  com- 
plainant had  occurred  after  [153]  the  sur- 
vey, sale,  and  patent  of  complainant's  land 
by  the  United  States.  In  addition  the  bill 
charged  that,  under  the  power  of  the  United 
States  to  regulate  commerce,  harbor  lines 
had  at  various  times  been  established  which 
extended  from  the  respective  shores  to  the 
old  channel  before  the  new  one  was  con- 
structed, and  that  under  the  plans  approved 
by  the  Secretary  of  War  for  the  new  work 
it  was  contemplated  that  harbor  lines 
should  extend  from  the  respective  shores  to 
that  channel. 

(e)  The  relief  prayed. — The  prayer  was 
that  the  riparian  rights  of  the  complain- 
ant be  recognized  and  enforced  from  the 
shore  out  to  the  new  navigable  channel 
created  by  the  work  done  by  the  United 
States,  and  that  all  rights  of  the  defend- 
ants as  riparian  owners  which  they  assert- 
ed to  extend  across  the  new  channel  over 
to  the  old  channel  be  declared  to  be  in- 
valid, and  that  they  be  restrained  from  as- 
serting or  enforcing  them. 

Coming  to  test  these  averments,  we  fail 
to  perceive  any  ground  for  holding  that  the 
rights  asserted  rested  in  any  degree  what- 
ever upon  a  substantial  claim  under  the 
Constitution  or  laws  of  the  United  States, 
or  by  any  possibility  involved  the  construc- 
tion or  application  of  any  law  of  the  United 
States,  for  the  following  reasons:  First, 
because  as  to  the  claim  of  riparian  rights 
on  the  navigable  waters  in  question,  it  was 
long  since  affirmatively  settled  that  such 
claim  solely  involves  a  question  of  state 
law,  and  therefore  at  the  time  the  bill  was 
filed  it  was  not  open  to  contend  to  the  con- 
trary. Barney  v.  Keokuk,  94  U.  S.  324, 
24  L.  ed.  224;  Hardin  v.  Jordan,  140  U.  S. 
371,  35  L.  ed.  428,  11  Sup.  Ct.  Rep.  808, 
838;  JGrand  Rapids  &  I.  R.  Co.  v.  Butler, 
159  U.  S.  87,  40  L.  ed.  85,  16  Sup.  Ct.  Rep. 
991 ;  Devine  v.  Los  Angeles,  202  U.  S.  313, 
50  L.  ed.  1046,  26  Sup.  Ct.  Rep.  652. 
Second,  because  the  mere  fact  that  both  par- 
ties, the  one  holding  on  the  Wisconsin  shore 
and  the  other  on  the  Minnesota  shore,  had 
acquired  the  property  by  them  held  from 
the  United  States,  it  is  also  affirmatively 
settled,  in  no  way  changes  the  situation. 
Blackburn  v.  Portland  Gold  Min.  Co.  175 
U.  S.  571,  44  L.  ed.  276,  20  Sup.  Ct.  Rep. 
222,  20  Mor.  Min.  Rep.  358;  Florida  C.  & 
P.  R.  Co.  V.  [154]  Bell,  176  U.  S.  321,  44  L. 
ed.  486,  20  Sup.  Ct.  Rep.  399;  Shoshone 
190 


Min.  C6.  V.  Rutter,  177  U.  S.  505,  44  L. 
isl.  864,  20  Sup.  Ct.  Rep.  726;  Shulthii  t. 
McDougal,  225  U.  S.  561,  569,  56  L.  ed. 
1205,  1210,  32  Sup.  Ct.  Rep.  704.  Third, 
because,  so  far  as  the  references  in  the  bill 
to  the  organization  of  the  Northwest  Tenri* 
tory  and  to  the  various  provisions  relating 
to  navigable  waters  are  concerned,  however 
interesting  they  may  be  historically,  we  can 
see  not  the  slightest  ground  for  the  conten- 
tion that  they  were  controlling  or  in  any 
Way  could  influence  the  question  of  the  na- 
ture and  character  of  the  riparian  rights 
enjoyed  under  the  state  law  by  the  com- 
plainants. Fourth,  because  we  can  discover 
in  the  averments  of  the  bill  no  substantive 
statement  indicating  that  it  was  contended 
to  the  contrary,  unless  it  be  that  such  pur- 
pose could  be  implied  as  the  result  of  the 
general  averments  of  the  bill  which  we  have 
quoted  concerning  the  general  intent  of  Con- 
gress to  preserve  free  navigation.  But  if 
we  were  to  indulge  in  such  assumption  the 
result  would  not  be  different,  as  the  aver- 
ments in  question  make  no  reference  to  any 
specific  legislation  of  Congress  which  would 
have  the  slightest  influence  upon  the  deter- 
mination of  the  existence  of  the  riparian 
rights  which  the  bill  asserted.  Fifth,  be- 
cause we  are  clearly  of  the  opinion  that  the 
mere  fact  that  Congress,  in  the  exercise  of 
its  power  to  improve  navigation,  directed 
the  construction  of  the  new  channel,  affords 
no  basis  whatever  for  the  assumption  that 
thereby,  as  a  matter  of  Federal  law,  rights 
of  property,  if  secured  by  the  state  law, 
were  destroyed,  and  new  rights  of  property 
under  the  assumption  indulged  in,  incom- 
patible with  that  law,  were  bestowed  by 
Congress.  And  especially  are  we  con- 
strained to  this  view  by  the  fact  that  there 
is  no  question  here  of  any  interference  with 
work  done  by  the  United  States  under  its 
paramount  authority  to  improve  navigation, 
or  any  attempt  to  render  the  result  of  that 
work  inefficacious.  This  will  be  lucidly  il- 
lustrated by  considering  for  a  moment  the 
action  of  both  the  courts  below,  since  neither 
questioned  the  paramount  authority  [155] 
and  right  of  the  United  States  in  aid  of 
navigation  to  construct  the  new  channel,  or 
concerned  themselves  with  any  real  or  im- 
aginary impediment  to  navigation.  This  is 
at  once  demonstrated  by  considering  that 
the  only  difference  between  the  two  was  the 
conclusion  in  the  trial  court  that  the  effect 
of  constructing  the  new  channel  was  to  ex- 
tend the  riparian  rights  over  and  across  the 
old  channel  to  the  new,  irrespective  of  the 
rights  of  property  changed  or  destroyed 
thereby,  because  the  new  channel  was  to 
be  treated,  not  as  a  new  work,  but  as  the 
gradual  and  natural  modification  of  the  old, 

289  V.  B. 


1916. 


FIREBALL  0.  T.  ft  L  CO.  t.  OOMMBRGIAL  ACETYLENB  CO.     155,  156 


wldle  the  court  below  reached  a  directly 
contrary  conciuEion.  * 

Finally,  we  are  of  opinion  that  the  ques- 
tion whether  the  stretch  of  water  and  the 
channel  through  it  be  treated  as  a  part  of 
Lake  Superior,  as  asserted  by  the  complain- 
ant, or  be  considered  at  the  point  in  issue 
ss  a  mere  continuation  of  the  St.  Louis 
river,  as  asserted  by  the  defendants  (a  view 
held  by  both  the  courts  below),  is  wholly 
n^ligible  for  the  purpose  of  determining 
whether  a  substantial  Federal  question  was 
alkged,  justifying  our  talcing  jurisdiction 
of  the  cause. 

As  from  what  we  have  said  it  results  that 
our  opinion  is  that  there  is  no  substantial 
ground  for  concluding  that  the- jurisdiction 
of  the  district  court  rested  upon  any  asser- 
tion of  Federal  right,  irrespective  of  diverse 
citizenship,  justifying  our  review  of  the 
court  below,  it  follows  that  the  appeal  must 
be  and  it  is  dismissed  lor  want  of  juris- 
diction. 


[156]  FIREBALL  GAS  TANK  ft  ILLUM- 
INATINO  COMPANY  and  David  Leon 
Soloman,  Petitioners, 

V. 

COMMERCIAL   ACETYLENE   COMPANY 
and  the  Prest-O-Lite  Company. 

(See  S.  C.  Reporter's  ed.  156-169.) 

Patents  —  expiration  with  foreign  pat- 
ent —  identity. 

1.  There  .is  no  such  identity  between  the 
Claude  &  Hess  patent,  No.  664,383,  for  an 
improved  apparatus  for  the  storage  and  dis- 


tribution of  acetylene  gas,  designed  to  make 
use  of  the  property  of  that  and  other  gasea 
of  solubili^  in  a  liquid,  and  prior  foreign 
patents  for  methods  of  storing  acetylene 
gas,  based  upon  such  solubility,  the  devices 
described  in  which  were  not  a  result  of  the 
operation  of  the  methods,  that  the  expira- 
tion of  the  foreign  patents  will  terminate 
the  United  States  patent. 

[For  other  cases,  see  Patents,  28-87,  in  Di- 
gest Sup.  Ct.  1908.] 

Certiorari  —  in  patent  case  —  discre- 
tionary matters. 
2.  The  discretion  of  the  trial  court  in 
granting  an  interlocutory  injunction  upon 
the  pleadings  and  affidavits  against  the  in- 
fringement of  certain  letters  patent  should 
not  be  disturbed  bv  the  Federal  Supreme 
Court  on  a  writ  of  certiorari  to  review  a 
decree  of  a  circuit  court  of  appeals  which 
affirmed   the   injunction   order,   where   the 
questions    involved    of    invention    and    in- 
fringement are  seriously  disputable. 
[For  other  cases,  see  Certiorari.  IL  c  in  Di- 
gest Sup.  Ct  1908.] 

[No.  13.] 

Argued  October  22,  1015.    Decided  Novem- 
ber 29,  1915. 

ON  WRIT  of  Certiorari  to  the  United 
States  Circuit  Court  of  Appeals  for  the 
Eighth  Circuit  to  review  a  decree  which 
affirmed  a  decree  of  the  District  Court  for 
the  Eastern  Division  of  the  Eastern  Dis- 
trict of  Missouri,  granting  an  interlocutory 
injunction  against  the  infringement  of  let- 
ters patent.    Affirmed. 

See  same  case  below,  117  C.  C.  A.  354, 
398  Fed.  B.'SO. 

The  facts  are  stated  in  the  opinion. 


KoTE. — Expiration  of  domestic  patent  with 

foreign  patent. 

Under  the  act  of  July  8,  1870,  §  25,  sub- 
stantiallv  re-enacted  in  U.  S.  Rev.  Stat. 
i  4887,  Comp.  Stat.  1913,  §  9431,  a  United 
States  patent  for  an  invention  "previously 
patented  in  a  foreign  coumtry"  expires  at 
the  same  time  with  the  foreign  patent;  or, 
if  there  be  more  than  one,  at  the  same  time 
with  the  one  having  the  shortest  term,  in 
no  case  running  for  more  than  seventeen 
years. 

This  section  was  not  retroactive  and  did 
not  affect  the  term  of  United  States  pat- 
ents theretofore  granted.  Goff  v.  Stafford, 
3  Bann.  t  Ard.  610,  Fed.  Cas.  No.  5,504; 
De  Florez  v.  Raynolds,  17  Blatchf.  436,  8 
Fed.  434.  Nor  did  it  apply  to  subsequent 
reissues  of  such  patents.  Badische  Anil  in  & 
Soda  Fabrik  v.  Hamilton  Mfg.  Co.  3  Bann. 
k  Ard.  235,  Fed.  Cas.  No.  721. 

A  United  States  patent  was  not  void, 
under  the.  act  of  July  8,  1870,  because  it 
was  not  limited  on  its  face  to  expire  at  the 
date  when  the  foreign  patent  previously 
granted  for  the  same  invention  is  to  ex- 
60  L.  ed. 


pire.  Canan  v.  Pound  Mfg.  Co.  23  Blatchf. 
173,  23  Fed.  185. 

And  the  change  of  phraseology  in  U.  S. 
Rev.  Stat.  §  4887,  by  which  the  words  "shall 
be  so  limited  as  to  expire"  are  substituted 
in  place  of  the  words  in  the  act  of  July 
8,  1870,  §  25.  "shall  expire  at  the  same 
time,"  does  not  render  the  United  States 
patent  void  because  not  limited  on  its  face 
to  expire  at  the  date  when  the  foreign  pat- 
ent previously  granted  for  the  same  inven- 
tion shall  expire.  Canan  v.  Pound  Mfg.  Co. 
supra.  To  the  same  effect  are:  Bate  Re- 
frigerating Co.  V.  George  H.  Hammond  &  Co. 
129  U.  S.  151,  32  L.  ed.  645,  9  Sup.  Ct. 
Rep.  225,  reversing  35  Fed.  151;  Ameriran 
Paper  Barrel  Co.  v.  Laraway,  28  Fed.  141; 
Edison  Electric  Light  Co.  v.  United  States 
Electric  Lighting  Co.  3  C.  C.  A.  83,  11  U. 
S.  App.  1,  52  Fed.  300. 

The  United  States  patent,  though  it  may 
on  its  face  run  for  seventeen  years,  is, 
under  U.  S.  Rev.  Stat.  §  4887,  in  the  case 
provided  for  by  it,  to  be  so  limited  by  the 
courts,  as  a  matter  to  be  adjudicated  on 
evidence  in  pais,  as  to  expire  at  the  same 
time  with  the  foreign  patent  not  running 

191 


SUPREME  CX)UKT  OF  THE  UNITED  STATES. 


Oct.  Tbh^ 


Hr.  John  H.  BrantncA  argued  the  cause 
and  filed  a  brief  for  petitioners: 

The  rules  for  determining  whether  a 
United  States  patent  is  limited  by  a  foreign 
patent  may  be  stated  as  follows: 

1.  The  invention  protected  by  the  United 
States  patent  must  be  protected  by  the  for- 
eign patent;  in  other  words,  they  must  both 
be  for  the  same  invention. 

2.  Where  a  process  and  product  are  for 
the  same  invention,  a  patent  for  one  will 
limit  the  other. 

3.  Where  a  process  and  apparatus  are  for 
the  same  invention,  a  patent  for  one  will 
limit  the  patent  for  the  other. 

4.  It  is  not  necessary  that  the  patents  be 
identical  in  every  respect,  but  it  is  suffi- 
cient if  the  principal  invention  Is  in  both. 


Mere  differences  in  detail  are  therefore  im* 
material. 

Siemens  v.  Sellers  (Guarantee  Ins.  Tnut 
k  S.  D.  Co.  V.  Sellers)  123  U.  S.  276,  SI 
L.  ed.  153,  8  Sup.  Ct.  Rep.  117;  Commercial 
Mfg.  Co.  V.  Fairbanks  Canning  Co.  135  U. 
S.  176,  34  L.  ed.  88,  10  Sup.  Ct.  Rep.  718} 
Bate  Refrigerating  Co.  v.  Sulzeberger,  157 
U.  S.  1,  39  L.  ed.  601, 15  Sup.  Ct.  Rep.  508; 
Leeds  &  C.  Co.  v.  Victor  Talking  Mach.  Co. 
213  U.  S.  301,  53  L.  ed.  805,  29  Sup.  Ct. 
Rep.  495. 

Even  considering  the  Britirii  patent  as  a 
method  patent,  it  is  for  the  same  invention 
as  the  United  States  patent. 

Risdon  Iron  k  Locomotive  Works  v.  Ma- 
dart,  158  U.  S.  68,  39  L.  ed.  899,  15  Sup. 
Ct.  Rep.  745 ;  Westinghouse  v.  Boyden  Pow- 


in  any  case  more  than  the  seventeen  years. 
Bate  Refrigerating  Co.  v.  George  H.  Ham- 
mond k  Co.  supra. 

The  time  of  expiration  of  the  United 
States  patent  is  to  be  determined  by  the 
court  on  evidence  in  pais,  where  the  bill 
alleges  that  the  foreign  patent,  previously 
granted  for  the  same  invention,  has  not 
expired,  but  is  in  full  force  and  effect,  and 
deifendant's  plea  avers  that  it  had  expired 
before  the  suit  was  brought.  Edison  Elec- 
tric Light  Co.  V.  Westinghouse,  40  Fed. 
666. 

The  application  of  U.  S.  Rev.  Stat.  | 
4887,  Comp.  Stat.  1913,  §  9431,  is  not  pre- 
vented because  the  inventor  who  makes  the 
application  for  the  United  States  patent  is 
an  American  citizen,  because,  since  the  act 
of  July  4,  1836,  which  repealed  all  former 
patent  laws  and  established  a  comprehensive 
code  covering  the  whole  subject,  the  Fed- 
eral laws  have  made  no  distinction  between 
American  citizens  and  foreigners  with  re- 
spect to  the  privilege  of  obtaining  patents, 
or  the  conditions  and  restrictions  of  the 
privilege  granted,  except  as  to  the  amount 
of  the  fee  to  be  paid  and  the  protection  of 
inventions  by  caveat.  Edison  Electric  Light 
Co.  V.  United  States  Electric  Lighting  Co. 
35  Fed.  134. 

The  statutory  provision  for  a  seventeen 
years'  patent  to  the  first  inventor  of  any 
new  and  useful  article  does  not  override 
the  provision  that  where  the  invention  has 
been  previousljr  patented  in  a  foreign 
country  the  United  States  patent  shall  be 
so  limited  as  to  expire  when  the  foreign 

f»atent  expires.    United  States  ex  rel.  Koech- 
in  V.  Marble,  2  Mackey,  12. 

"Previously  patented." 

The  provisions  of  U.  S.  Rev.  Stat.  §  4887, 

Presuppose  that  at  the  date  of  the  United 
tates  patent  there  was  in  force  a  foreign 
Satent  for  the  invention.  Huber  v.  N.  O. 
felson  Mfg.  Co.  148  U.  S.  270,  37  L.  ed. 
447,  13  Sup.  Ct.  Rep.  603,  affirming  38  Fed. 
830. 

Hence,  a  foreign  patent  antedating  the 
United  States  patent,  but  thereafter  de- 
J93 


clared  void  ab  initio  by  a  foreign  courts 
never  having  had  in  fact  any  exis&nce,  can 
have  no  effect  under  U.  S.  Rev.  Stat.  §  4887, 
in  shortening  the  term  of  the  United  States 
patent.  Bate  Refrigerating  Co.  v.  Gillett, 
20  Fed.  192. 

And  the  term  of  a  United  States  patent 
is  not  limited  by  the  term  of  a  certificate  of 
addition  to  a  prior  French  patent  for  the 
same  invention,  where  the  original  French 
patent  has  been  adjudged  null  and  void  by 
the  French  courts  for  lack  of  invention,  the 
effect  of  such  adjudication  under  the  French 
law  being  to  render  the  certificate  of  ad* 
dition  equally  null  and  void  as  never  hav- 
ing existed.  Hennebique  Constr.  Co.  v. 
Myers,  97  C.  C.  A.  289,  172  Fed.  869. 

An  invention  was  not  "previously  pat* 
ented  in  a  foreign  country,"  within  the 
meaning  of  U.  S.  Rev.  Stat.  §  4887,  al- 
though an  English  patent  for  the  saoM 
invention  bears  a  date  prior  to  the  grant 
of  the  United  States  patent,  where  the 
English  patent  was  pot  sealed  until  after 
the  date  of  the  United  States  patent,  and 
was  therefore  not  in  existence  on  that  date. 
Holmes  Burelar  Alarm  Teleg.  Co.  v.  Domes- 
tic Teleg.  k  Teleph.  Co.  42  P»l.  220 ;  Edison 
Electric  Light  Co.  v.  Waring  Electric. Co. 
59  Fed.  358,  affirmed  in  15  C.  C.  A.  700, 
20  U.  S.  App.  701,  69  Fed.  645. 

The  term  "patented,"  as  used  in  U.  8. 
Rev.  Stat.  §  4887,  means  the  actual  grant* 
ing  of  the  patent  by  the  foreign  govern- 
ment, although  the  patent  may  have  been 
antedated,  conformably  to  15  k  16  Vict, 
chap.  83,  9  24,  to  the  date  of  filing  the 
provisional  application.  American  Bell 
Teleph.  Co.  v.  uushman,  57  Fed.  842. 

Before  the  actual  sealing  of  an  English 
patent,  the  patentee  has  none  of  the  pow- 
ers, rights,  and  privileges  of  a  patentee ;  and 
when  the  sealinff  is  subsequent  to  the  issu- 
ance of  the  United  States  patent,  the  life 
of  the  latter  is  not  to  be  abridged  under  the 
act  of  July  8,  1870,  §  25,  by  the  antedatinff 
of  the  English  patent.  Emerson  Smith  « 
Co.  V.  Lippert,  31  Fed.  911. 

The  relation  back  of  an  English  patent 
by  reason  of  its  date  and  of  the  proviaiont 
of  15  k  16  Vict  chap.  83,  f  24,  does  not 

289  U.  S. 


1915. 


FIREBALL  G.  T.  ft  L  CO.  v.  COMMERCIAL  ACETYLENE  CO. 


cr  Brake  Co.  170  U.  8.  697,  42  L.  ed.  1136» 
18  Sup.  Ct.  Rep.  707;  Re  Creveling,  1006 
C.  D.  686;  Moaler  Safe  ft  Lock  Co.  v. 
Moeler,  B.  ft  Co.  127  U.  S.  364,  32  L.  ed. 
182,  8  Sup.  Ct.  Rep.  1148;  Miller  v.  Eagle 
Mfg.  Co.  161  U.  S.  186,  38  L.  ed.  121,  14 
Sup.  Ct.  Rep.  310. 

Ihis  court  can  dismiss  the  bill  at  this 
hearing. 

Mast,  F.  ft  Co.  V.  Stover  Mfg.  Co.  177 
U.  S.  486,  44  L.  ed.  866,  20  Sup.  Ct.  Rep. 
708. 

Mr.  John  P.  Bartlett  argued  the  cause 
and  filed  a  brief  for  respondents: 

The  term  of  the  United  States  patent  is 
limited  only  by  the  thing  patented  by  the 


foreign  patent,  not  by  the  things  disclosed 
therein. 

Holmes  Electric  Protective  Co.  t.  Metro- 
politan Burglar  Alarm  Co.  22  Fed.  341; 
Leeds  ft  C.  Co.  v.  Victor  Talking  Mach.  Co. 
213  U.  S.  301,  63  L.  ed.  806,  29  Sup.  Ct. 
Rep.  496;  Westinghouse  Electric  ft  Mfg.  Co. 
V.  Stanley  Instrument  Co.  71  C.  C.  A.  189, 
138  Fed.  823;  Robinson,  Patents,  §  623; 
McMillan  v.  Reese,  I  Fed.  722;  Lehigh  Val- 
ley R.  Co.  V.  Mellon,  104  U.  S.  112,  26  L.  ed. 
639;  White  ▼.  Dunbar,  119  U.  S.  47,  30 
L.  ed.  303,  7  Sup.  Ct  Rep.  72;  Bums  v. 
Meyer,  100  U.  S.  671,  26  L.  ed.  738;  K^- 
stone  Bridge  Co.  v.  Phcenix  Iron  Co.  96 
U.  S.  274,  24  L.  ed.  344;  Toohey  v.  Harding, 
4  Hughes,  263,  1  Fed.  174;  Yale  Lock  Mfg. 


make  applicable  the  provisions  of  U.  S. 
Rev.  Stat.  §  4887,  where  the  American  pat- 
ent was  issued  before  the  English  patent 
was  sealed,  since  up  to  that  time  there  was 
no  English  patent,  although  its  antedating 
gave  it  the  same  validity  as  if  sealed  on 
the  day  it  bore  date,  to  make  liable  as  an 
infringer  anyone  who  after  that  manufac- 
tured, used,  or  sold  the  invention,  and  lim- 
ited t^e  duration  of  the  grant  to  the  period 
of  fourteen  years  from  that  date.  Seibert 
Cylinder  Oil  Co.  v.  William  Powell  Co.  36 
Fed.  691. 

An  invention  was  patented  in  Canada 
witltin  the  meaning  oi  U.  S.  Rev.  Stat.  § 
4887,  when  the  patent  was  signed  and  issued 
as  a  patent,  ready  for  delivery,  although 
such  delivery  was  delayed  by  the  patentee's 
neglect  to  lile  a  model,  which  he  had  the 
power  to  do  at  any  time.  Bate  Refrigerat- 
ing Co.  V.  GiUett,  13  Fed.  663,  31  Fed.  809. 

If  there  was  in  force  at  the  date  of  the 
United  States  patent  a  foreign  patent  for 
the  same  invention,  it  is  of  no  importance 
that  the  United  States  patent  may  have  been 
applied  for  before  the  foreign  patent  waa 
granted  (Bate  Refrigerating  Co.  v.  Sulz- 
berger, 167  U.  S.  1,  39  L.  ed.  601,  16  Sup. 
Ct.  Rep.  508;  Bate  Refrigerating  Co.  v. 
Gillett,  supra;  Accimiulator  Co.  v.  Julian 
Electric  Co.  67  Fed.  606),  or  that  the  ap- 
plication for  the  foreign  patent  was  not 
made  until  after  the  application  for  the 
United  States  patent  was  filed  (Gramme 
Electrical  Co.  v.  Arnoux  ft  H.  Electric  Co. 
21  Blatchf.  460,  17  Fed.  838;  Edison  Elec- 
tric Light  Co.  V.  United  States  Electric 
Lighting  Co.  36  Fed.  134). 

The  exclusive  privilege  to  make  and  per- 
mit others  to  make  the  thing  invented  for  a 
specified  term,  granted  by  Sie  Danish  Sov- 
ereign prior  to  the  enactment  of  patent 
legislation  in  Denmark,  is  the  equivalent  of 
a  patent,  within  the  meaning  of  U.  S.  Rev. 
Stat.  §  4887,  although  such  grant  may  not 
forbid  the  sale  and  use  of  the  patented  ar- 
ticle imported  from  another  country.  Atlas 
Glass  Co.  V.  Simonds  Mfg.  0>.  .42  C.  C.  A. 
664,  102  Fed.  643,  affirming  102  Fed.  338. 
The  court  said  that  the  exclusive  privilege 
granted  by  the  foreign  country  need  not 
60  L.  ed. 


be  coextensive  with  the  privilege  granted 
under  the  laws  of  the  United  States;  that 
the  true  meaning  and  purpose  of  the  section 
are  accomplish^  b^  applying  the  word 
"patent"  to  the  havmg  received  the  grant 
of  an  exclusive  privilege  from  a  foreign 
Sovereign,  if  such  privil^e  amounts  to  a 
substantial  monopoly,  and  that  the  words 
"previously  patented  in  a  foreign  country" 
must  be  taken  to  mean  "patented  according 
to  the  laws  and  usages  of  such  foreiffn 
country,"  provided  a  substantial  monopoly 
is  therebpr  granted. 

A  Swiss  provisional  patent  which  con- 
veys no  monopoly  or  right  to  proceed 
against  infringers,  but  merely  gives  the 
provisional  patentee  the  right  to  obtain  a 
definitive  patent  within  three  years  upon 
making  the  required  proofs,  securing  him 
during  that  period  against  the  effects  of 
publicity,  is  not  the  patent  meant  by  U.  S. 
Rev.  Stat,  f  4887,  and  the  cancelation  of 
such  provisional  patent  for  failure  to  fur- 
nish proof  of  a  model,  before  the  United 
States  patent  was  granted,  or  before  an  ap- 
plication for  such  patent  was  filed,  does  not 
destroy  or  affect  the  United  States  patent. 
Soci^te  Anonyme  v.  General  Electric  Co. 
97  Fed.  604. 

Patentees  from  the  United  States  are  not 
estopped  from  showing  the  provisional  char- 
acter of  a  Swiss  patent,  the  lapse  of  which 
is  relied  upon  under  U.  S.  Rev.  Stat.  §  4887, 
to  destroy  the  United  States  patent,  because 
of  the  formal  statement  in  the  specification 
that  a  patent  had  been  granted  them  from 
Switzerland.  Soci4t^  Anonyme  ▼•  (General 
Electric  Co.  supra. 

The  secrecy  of  an  Austrian  patent  granted 
prior  to  the  granting  of  the  United  States 
patent  for  the  same  invention  cannot  af- 
fect, under  the  act  of  July  8,  1870,  §  26, 
the  question  of  the  duration  of  the  United 
States  patent,  if  the  Austrian  patent, 
though  secret,  conferred  upon  the  patentees 
on  exclusive  privilege.  Gramme  Electrical 
0>.  y.  Arnoux  ft  H.  Electric  Co.  supra. 

When   does   foreign   patent   expire. 

The  words  "expire  at  the  same  time  with 

the  foreign  patent,"  as  used  in  U.  8.  Rev. 

13  193 


166,  157 


8UPB£ME  COURT  OF  THE  UNITED  STATSa 


OoT.  Tkuc, 


Co.  ▼.  Greenleaf,  117  U.  S.  664,  29  L.  ed. 
952,  6  Sup.  Ct.  Rep.  846. 

Tlie  thing  •patented  must  be  the  same  in 
both  patents. 

Leeds  ft  C.  Co.  t.  Victor  Talking  Mach. 
Co.  213  U.  8.  801,  63  L.  ed.  866,  29  Sup. 
Ct.  Rep.  495. 

One  who  discovers  an  art,  and  invents  a 
machine  to  practise  it,  does  not  deprive  him- 
self of  a  right  to  patents  on  both  tiie  process 
and  apparatus. 

Century  Electric  Co.  v.  Westinghouse 
Electric  k  Mfg.  Co.  112  C.  C.  A.  8,  191  Fed. 
350. 

As  the  British,  German,  and  French 
Claude  k  Hess  patents  cover  a  process,  or 
method,  thej  do  not  limit  the  term  of  the 
United  States  patent,  which  covers  an  ap- 


paratus,   of  '  which    the    product    of    said 
process  or  method  is  an  element. 

Leeds  k  C.  Co.  ▼.  Victor  Talking  Mach. 
Co.  supra. 

Mr.  Justice  McKenna  delivered  the  opin- 
ion of  the  court: 

By  this  writ  there  is  brought  here  for  re- 
view a  decree  of  the  circuit  court  of  ap- 
peals affirming  an  order  for  an  [157]  in- 
terlocutory injunction  against  the  infringe- 
ment of  certain  letters  patent. 

The  circuit  court  of  appeals  considered 
the  question  in  the  case  to  be  the  narrow 
one  whether  the  injunction  was  properly 
granted. 

Petitioners,  who  were  defendants  in  the 
district  court,  attack  not  only  that  eondu- 


Stat.  §  4887,  C6mp.  SUt.  1913,  §  9431,  refer 
to  the  legal  term  of  the  foreign  patent  in 
force  at  the  time  of  the  issuing  of  the 
United  States  patent  and  do  not  mean  the 
lapse  or  forfeiture  of  any  portion  of  such 
term  by  reason  of  the  nonobservance  of  a 
condition  subsequent  prescribed  by  the  for- 
eign statute,  such  as  the  nonpayment  of 
annuities,  or  failure  to  work  the  invention. 
Pohl  V.  Anchor  Brewing  Co.  134  U.  S.  381, 
33  L.  ed.  953,  10  Sup.  Ct.  Rep.  577,  revers- 
ing 39  Fed.  782.  The  court  said  that  the 
question  involved  was  not  the  same  as  that 
decided  in  Bate  Refrigerating  Co.  v.  George 
H.  Hammond  k  Co.  129  U.  S.  151,  32  L.  ed. 
045,  9  Sup.  Ct.  Rep.  225,  infra,  on  which 
the  circuit  court  relied,  and  was  not  eon- 
trolled  by  the  decision  in  that  case. 

A  United  States  patent  runs  for  the  term 
for  which  the  foreign  patent  was  panted, 
notwithstanding  the  lapse  or  forfeiture  of 
the  foreign  patoit  by  the  nonobservance  of  a 
condition  subsequent  prescribed  by  the  for- 
eign patent  law.  Consolidated  Koller-Mill 
Co.  V.  Walker,  43  Fed.  575,  affirmed  in  138 
U.  S.  124,  34  L.  ed.  920,  11  Sup.  Ct.  Rep. 
292. 

An  American  patent  issued  after  an  Eng- 
lish patent  for  the  same  invention  had  been 
granted  for  a  term  of  fourteen  years,  sub- 
ject to  be  defeated  by  the  nonperformance 
of  a  condition  subsequent,  is  not  subject  to 
the  same  condition.  The  term  of  the  Eng- 
lish patent  fixed  the  term  of  the  American 
Ktent,  and  the  subsequent  fate  of  the  Eng- 
h  patent  could  have  no  effect  upon  the 
American  one,  the  life  of  each  after  its  in- 
ception proceeding  independently  of  the  life 
of  the  other.  Bate  Refrigerating  Co.  v. 
Gillett,  31  Fed.  809. 

The  lapsing  of  a  foreign  patent  for  non- 
payment of  an  annuity  during  the  pendency 
of  an  application  for  a  United  States  pat- 
ent for  the  same  invention  does  not  render 
the  latter  patent  void  under  U.  S.  Rev. 
Stat.  9  4887,  but  it  expires  at  the  end  of 
the  term  prescribed  in  such  foreign  patent. 
Welsbach  Light  Co.  v.  Apollo  Incandescent 
Gaslight  Co.  37  C.  C.  A.  508,  96  Fed.  332, 
reversing  94  Fed.  1005.  The  court  distin- 
guished Huber  T.  N.  O.  Nelson  Mfg.  Co.  148 
J»4 


U.  S.  270,  87  L.  ed.  447,  18  Sup.  Ct.  Rep. 
603,  where  it  was  held  that  a  patent  could 
not  be  granted  in  the  Unitea  States  on 
an  application  which  was  not  made  until 
seven  months  after  an  Engli^  patent  for 
the  same  invention  had  expired  because  of 
the  patentee's  failure  to  pay  a  stamp  duty. 
Ill  is  decision  the  circuit  court  of  appeals  in- 
terpreted as  resting  upon  the  ground  that 
the  delay  in  applying  for  a  United  States 
patent  amounted  to  an  abandonment. 

The-  term  uf  a  United  States  patent  Is 
not  affected  under  U.  S.  Rev.  Stat.  §  4887» 
bv  the  lapsing  of  a  prior  foreign  patent  for 
the  same  invention  oecause  of  the  nonpay- 
ment of  a  tax.  The  term  of  the  United 
States  patent  is  to  be  as  long  as  the  re- 
mainder of  the  term  for  which  the  foreign 
patent  was  granted,  without  reference  to 
incidents  occurring  after  the  grant.  Holmes 
Electric  Protective  Co.  v.  Metropolitan 
Burglar  Alarm  Co.  21  Fed.  458. 

The  United   States  patent  does  not  ex- 

gire  at  the  same  time  wi^  tiie  original 
srm  of  the  foreign  patent  for  the  same  in- 
vention, where  the  latter  patent  has  been 
extended  under  a  statute  in  force  when  the 
United  States  patent  was  issued  and  ap- 
plied for,  which  made  such  extension  a 
matter  entirely  of  right  at  the  option  of  tha 
patentee,  the  original  extended  term  hav- 
ing been  continuous  and  uninterrupted.  In 
such  ease  the  United  States  patent,  sub- 
ject to  the  limitation  of  seventeen  years, 
continues  in  force  until  the  expiration  of 
tlie  extended  term  of  the  foreign  patent. 
Bate  Refrigerating  Co.  v.  George  H.  Ham- 
mond k  Co.  129  U.  S.  151,  32  L.  ed.  645,  9 
Sup.  Ct.  Rep.  225,  reversing  35  Fed.  161. 

A  result  exactly  con&ary  had  been 
reached  in  Reissner  v.  Sharp,  16  Blatehf. 
383,  Fed.  Cas.  Ko.  1 1,689,  where  a  United 
States  patent  granted  October  20,  1874,  for 
seventeen  years,  was  held  to  have  expired  on 
May  15,  1878,  because  a  patent  was  granted 
in  Canada  under  the  authority  of  the  pat- 
entee for  the  same  invention  on  May  16» 
1873,  for  five  year  from  that  date,  althou^^ 
in  March,  1878,  the  Canadian  patent  was  ex- 
tended for  five  years  from  May  16,  I8789 
and  also  for  five  years  from  May  16»  188S. 

189  V.  H. 


1916. 


FIREBALL  0.  T.  ft  L  GO.  v.  OOMMEBCIAL  ACETYLENE  00. 


167 


sioa,  but  contend  for  the  larger  relief  of  a 
dittuiieaal  of  the  bilL 

The  Acetylene  Company  it  the  owner  of 
letters  patent  No.  664,383,  granted  Decem- 
ber 26,  1900,  for  "apparatus  for  itoring 
and  distribute  aeetylene  gaa."  The  Prest- 
0-Lite  Company  it  the  exdusive  lioentoe  at 
to  tlM  use  of  the  invention  on  automobilet, 
carriagety  and  other  movable  vehicles.  De- 
fendanta  manufacture  and  tell  what  is 
known  at  the  "Fireball  Gat  Tank;"  Solo- 
man  it  the  pretideut  of  the  defendant. 

The  bill  wat  filed  Augutt  17,  1011,  and  a 
motion  for  a  preliminary  injunction  was 
made.  It  wat  heard  upon  the  bill,  exhibitt, 
answer,  replication,  and  affidavitt.  The  cir- 
cuit court  granted  the  injunction,  and  the 
order  wat  affirmed,  at  we  have  said,  by 
the   circuit  court  of   appeals.     The   court 


considered  that  the  question  before  it  -was 
whether  the  trial  court  had  exercised  a 
sound  judicial  discretion  in  granting  the 
injunction,  and  deciding  that  the  trial  court 
had  done  to,  aiBrmed  itt  action  and  re* 
futed  to  ditnodtt  the  bill,  at  it  wat  urged  to 
do.  Opinion  wat  reterved  upon  all  of  the 
<luetti<mt  which  the  record  pretented  exc<^>t 
the  question  of  the  abuse  by  the  trial  court 
of  itt  ditcretion  in  the  ittue  of  the  injunc- 
tion, at  the  court  said,  "until  the  affidavit 
stage  of  this  proceeding  shall  have  been 
passed,  until  the  rights  of  these  parties 
shall  have  been  tested  by  the  production^ 
hearing,  and  cross-examination  of  their  wit- 
nesses according  to  the  salutary  and  search- 
ing practice  of  the  common  law,  and  until 
the  court  below,  at  the  final  hearing,  has 
investigated  and  decided  the  issues  the^e 


And  that  the  tame  patent  involved  in  Bate 
Refrigerating  Co.  v.  George  H.  Hammond 
ft  Co.  supra,  expired  with  the  original  term 
of  the  Canadian  patent,  had  been  held  in 
Bate  Refrigerating  Co.  v.  Gillett,  13  F^d. 
663,  and  31  Fed.  809. 

And  it  had  also  been  held  in  Henry  v. 
Providence  Tool  Co.  3  Bann.  ft  Ard.  501, 
Fed.  Cas.  No.  6,384,  that  the  United  States 
patent  expires  at  the  same  time  with  the 
original  term  of  a  foreign  patent  for  the 
ssme  invention,  without  regard  to  anv 
subsequent  prolongation  or  extension  of  such 
tttm  which  the  patentee  may  be  able  to 
procure  from  the  foreign  government  at  a 
royal  favor.  Ditapproved  in  Bate  Refrig- 
erating Co.  V.  George  H.  Hammond  &  Co. 
120  U.  S.  151,  32  L.  ed.  646,  9  Sup.  Ct.  Rep. 
225. 

The  rule  laid  down  in  Bate  Refrigerating 
Co.  V.  George  H.  Hammond  ft  Co.  tupra, 
was  extended  in  Edison  Electric  Light  Co. 
V.  Perkins  Electric  Lamp  Co.  42  Fed.  327, 
to  cover  a  case  where  the  foreign  (Cana- 
dian) patent  had  lapsed  or  b«x>me  for- 
feited lief  ore  the  original  term  had  expired 
and  before  tlic  extrusion  was  granted.  The 
court  said:  "If  the  Canadian  government 
has  in  fact  accepted  the  renewal  fee  and 
renewed  the  patent  for  a  Continuous  and  un- 
interrupted period  of  fifteen  vears  as  though 
the  subsequent  condit'ons  had  been  com- 
plied witli,  the  United  States  patent  has  not 
expired  bciore  the  expiration  of  said  fifteen 
years." 

A  United  States  patent  did  not  expire 
with  the  original  term  of  a  Osnadian  pat- 
ent previoushr  granted  for  the  same  inven- 
tion, where  the  Canadian  patentee  exercised 
his  option,  under  the  Canadian  statutes,  to 
have  the  patent  extended  upon  payment  of 
the  required  fee,  although  a  Swedish  oat- 
ent  for  the  same  invention,  granted  suose- 
quent  to  both  American  and  Canadian  pat- 
ents, expired  during  the  original  term  of 
the  Canadian  patent,  and  under  the  Cana- 
dian statutes  "when  a  foreign  patent  ex* 
istt"  the  Canadian*  patent  shall  expire  at 
the  earliest  date  at  which  any  foreign  pat- 
ent for  the  same  invention  expires,  since 
this  provision  covert  only  foreign  patentt 
60  L.  ed. 


which  exist  before  the  relevant  Canadian 
patent  is  Issued.  Edison  Electric  Light  Co. 
V.  United  States  Electric  Lighting  Co.  3 
C.  C.  A.  83,  11  U.  S.  App.  1,  52  Fed.  300. 

If,  by  the  foreign  law  under  which  a  pat- 
ent was  granted,  the  patentee,  by  virtue  of 
the  original  grant,  is  invested  with  the  right 
at  his  mere  option  to  have  the  patent  ex- 
tended or  prolonged  for  a  fixed  term,  it  it 
this  term  which  limitt  the  United  Statet 
patent  under  U.  S.  Rev.  Stat  §  4887, 
whether  or  not  the  patentee  exercitet  Jiit 
option.  Contolidated  Roller-Mill  Co.  v. 
Walker,  43  Fed.  676,  affirmed  in  138  U.  S. 
124,  84  L.  ed.  920,  11  Sup.  Ct.  Rep.  292. 

An  Austrian  patent  for  one  year,  which 
will  be  continued  for  fifteen  years  if  the 
annual  tax  is  paid,  must  be  considered  as 
running  for  fifteen  years  for  the  purpose 
of  applying  the  provisions  of  U.  8.  Kev. 
Stat.  §  4887,  although  it  may  have  lapsed 
before  the  full  term  because  of  the  failure 
to  pay  such  tax.  Pohl  v.  Heyman,  68  Fed. 
668. 

An  Austrian  patent  granted  for  one  year,, 
and  four  timet  extendi  from  year  to  year,, 
did  not  expire,  within  the  meaning  of  U. 
S.  Rev.  Stat.  §  4887,  upon  a  failure  to 
tecure  a  fifth  extention,  where,  under  the 
Austrian  law,  the  patentee  is  really  in- 
vested with  the  term  of  fifteen  years,  the 
purported  grant  of  but  one  year  referring 
only  to  tiie  payment  of  the  annuity  in  ad- 
vance for  that  vear.  Consolidated  Roller- 
Mill  Co.  V.  Walker,  supra. 

The  termination  of  a  foreign  patent 
which  it  granted  for  fourteen  years,  be- 
cause of  the  failure  of  the  foreign  patentee 
to  pay  the  stamp  duty,  which  he  is  required 
to  pay  in  order  to  continue  the  patent  in 
force  bevond  the  term  of  three  years,  is  not 
the  expiration  of  such  patent,  within  the 
meaning  of  this  section.  Paillard  v.  Bruno, 
20  Fed.  864. 

The  expiration  of  a  Canadian  patent  hy 
reason  of  the  failure  to  pay  the  fee  re- 
quired to  keep  sr  li  patent  alive  for  the 
second  six  years  of  the  eighteen-year  term 
for  whidi  it  wat  granted  does  not  affect  the 
duration  of  a  domestic  patent,  under  U.  S. 
Rev.  SUt  S  4887,  Comp.  Stat.  1913,  §  94''* 


157,  158 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Ooi.  Tbbm, 


parties  raise  in  [158]  the  light  of  that  tes- 
timony and  of  the  argument  of  counsel." 
[117  C.  C.  A.  362,  198  Fed.  658.] 

Whether  this  prudence  should  be  imi- 
tated or  a  broader  scope  of  decision  be 
made  we  will  determine  upon  a  considera- 
tion of  the  case. 

The  bill  is  in  the  usual  form  and  set 
forth  the  respective  rights  in  the  patent  of 
complainants,  respondents  here  (we  shall 
refer  to  them  as  complainants  and  to  peti- 
tioners as  defendants),  and  its  infringement 
by  defendants. 

The  defendants  answered  separately  and 
each  denied  infringement  and  averred  that 
by  reason  of  the  proceedings  in  the  Patent 
Office  the  patent  is  limited  in  its  scope  to 
the  subject-matter  precisely  as  claimed  and 


defined  by  the  claims  of  the  patent;  that 
the  prior  art  was  such  that  the  patent  is  de- 
void of  novelty  and  patentable  invention; 
that  it  is  destitute  of  utility;  that  it  does 
not  comply  with  the  statutes  in  precise  dif- 
ference from  what  preceded  it,  nor  sufficient- 
ly describe  the  method  of  operating  it  and 
the  process  of  making,  constructing,  and 
using  it;  that  complainants  have  a  remedy 
at  law  and  the  court  has  no  jurisdiction; 
and  that  the  alleged  inventors  of  the  pat- 
ent were  not  the  first  and  true  inventors  of 
it.  Certain  United  States,  British,  and  Ger- 
man patents  are  alleged  as  antedating  the 
invention,  and  certain  publications  are  rep- 
resented as  having  disclosed  it. 

Public  uses  of  the  patent  are  also  circum- 
stantially  alleged   and   profits  are  denied. 


making  such  patents  expire  with  foreign 
patents  for  the  same  invention.  Leeds  k  C. 
Co.  V.  Victor  Talking  Mach.  Co.  213  U.  S. 
801,  53  L.  ed.  805,  29  Sup.  Ct.  Rep.  495. 

llie  failure  of  a  Canadian  patentee,  who 
paid  only  a  partial  fee  for  a  partial  term, 
to  exercise  his  option  to  prolong  his  patent 
for  the  full  term  of  fifteen  years  b^  the 
payment  of  the  full  fee,  does  not  limit  the 
United  States  patent  for  the  same  inven- 
tion, issued  while  the  Canadian  patent  was 
still  in  force,  to  the  partial  term  of  the 
latter  patent,  but  the  United  States  patent 
continues  in  force  for  the  full  fifteen-year 
term  of  the  Canadian  patent.  Diamond 
Match  Co.  V.  Adirondack  Match  Co.  65  Fed. 
803. 

But  a  Canadian  patent  granted  for  five 
years,  conformably  to  a  statute  which  gave 
the  patentee  the  privilege  of  an  extension 
for  two  periods  of  five  years  each  upon  the 
payment  of  a  further  fee,  expired  at  the 
end  of  ten  years  so  as  to  terminate  at  that 
time,  under  U.  S.  Rev.  Stat.  §  4887,  a  United 
States  patent  for  the  same  invention, 
granted  subsequently  to  the  Canadian  pat- 
ent, where  the  latter  patent  was  renewed 
for  one  term,  but  not  for  a  third  term.  And 
a  different  conclusion  is  not  demanded  by 
an  amendment  to  the  Canadian  statute  un- 
der which  tlie  terms  of  all  Canadian  pat- 
ents are  fixed  at  fifteen  years,  where  such 
amendment,  though  retroactive,  was  passed 
after  the  United  States  patent  was  granted. 
Bonsack  Mach.  Co.  v.  Smith,  70  Fed.  383. 

A  foreign  patent  issued  for  one  year,  but 
extended  year  by  year  for  nine  additional 
years,  expires  at  the  end  of  the  tenth  year, 
where  no  further  extension  is  made,  al- 
though such  patent  under  the  foreign  law 
miglit  have  been  prolonged  for  five  years 
more.  Gramme  Electric  Co.  v.  Arnoux  &. 
H.  Electric  Co.  21  BUtchf.  450,  17  Fed. 
838. 

A  Spanish  patent  granted  for  ten  years 
expires  at  the  end  x>f  that  term,  within  the 
meaning  of  U.  S.  Rev.  Stat.  §  4887,  although 
by  an  international  convention  held  after 
the  patent  was  issued,  to  which  both  Spain 
and  the  United  States  were  parties,  such 
196 


patent  could  have  been,  but  was  not,  ex- 
tended for  a  further  term.  Accumulator  Co. 
V.  Julien  Electric  Co.  57  Fed.  6J^, 

A  foreign  patent  for  a  definite  term  of 
years  will,  for  the  purpose  of  applying  the 
provisions  of  U.  S.  Rev.  Stat.  §  4887,  be 
presumed  to  have  expired  at  the  termination 
of  that  period,  in  the  absence  of  any  proof 
either  of  the  fact  of  extension  or  of  a  for- 
eign law  permitting  extension.  Edison 
Electric  Light  Co.  v.  Electric  Engineering  k 
Supply  Co.  60  Fed.  401,  affirmed  in  13  C.  C. 
A.  487,  26  U.  S.  App.  737,  66  Fed.  309. 

A  patentee  seeking  to  avoid  the  applica- 
tion of  U.  S.  Rev.  Stat.  §  4887,  is  charged 
with  the  burden  of  proving  that  his  £>r- 
eign  patent  granted  for  five  years,  with  the 
privilege  of  an  extension  upon  the  payment 
of  further  fees,  did  not  expire  at  the  end 
of  the  five  years.  Bonsack  Mach.  Co.  t. 
Smith,  70   Fed.   383. 

Identity  of  patentees. 

A  patent  for  an  invention  does  not  ex- 
pire at  the  same  time  with  a  foreign  pat- 
ent for  the  same  invention,  by  force  of  U. 
S.  Rev.  Stat.  9  4887,  Comp.  Stat.  1013,  | 
0431,  unless  the  foreign  patent  was  oh- 
tained  by  the  American  patoitee  or  with 
his  consent.  Hobbs  v.  Beach,  180  U.  8. 
383,  45  L.  ed.  586,  21  Sup.  Ct.  Rep.  409, 
affirming  34  C.  C.  A.  248,  63  U.  S.  App. 
626,  92  Fed.  146.  "It  is  true,"  said  Mr. 
Justice  Brown,  ''that  by  Rev.  Stat.  §  4887, 
'every  patent  granted  for  an  invention  whidi 
has  been  previously  patented  in  a  foreign 
country  shall  be  so  limited  as  to  expire  at 
the  same  time  with  the  foreign  patent;' 
but  this  obviouslv  presupposes  tnat  the 
foreign  patent  shall  have  been  obtained  bj 
the  American  patentee,  or  with  his  con- 
sent. This  is  evident  from  the  somewhat 
awkward  phraseology  of  the  first  clause  of 
tlie  section,  which  declares  that  'no  person 
shall  be  debarred  from  receiving  a  patent 
for  his  invention,  ...  by  reason  of  its 
having  been  first  patented  or  caused  to  be 
patented  in  a  foreign  country,'  which  evi- 
dently means  that  the  patentee  shall  not 

239  U.  8. 


1»15. 


FIREBALL  G.  T.  ft  I.  CO.  w.  COMMERCIAJ.  ACETYLENE  CO.      168,  IM 


It  ifl  further  alleged  that  the  invention  of 
the  Claude  ft  Hen  United  States  patent  No. 
004,383,  which  is  in  suit,  was  patented  to 
George  Claude  and  Albert  Hess  by  British 
patent  No.  29,750,  and  that  the  latter  had 
expired  or  oeased  before  the  issue  of  pat- 
ent No.  664,383;  that  the  term  of  the  Ut- 
ter expired  not  later  than  June  SO,  1910; 
that  a  French  patent  to  the  same  patentees 
expired  June  30,  1911;  and  that  therefore 
patent  No.  604,383  also  expired  not  later 
than  said  date;  and  so  with  the  German  pat- 
ent and  other  patents. 

[150]  The  first  consideration  which  pre- 
wentB  itself  is  the  identity  of  the  United 
States    patent    with    the    foreign    patents 


which,  by  their  expiration,  if  thej  have  ex- 
pired, have  terminated  the  United  States 
patent. 

The  letters  patent  in  suit  describe  tha 
invention  as  '*An  Improvement  in  Appara- 
tus for  the  Storage  and  Distribution  of 
Acetylene  Gas."  Drawings  illustrate  the 
patent,  and  it  is  stated  that  it  '*is  designed 
to  carry  out  a  process  of  storage  and  dis- 
tribution involving  the  employment  of  a 
chamber  charged  with  a  solvent  of  the  gas 
to  be  stored  and  into  which  the  gas  is 
forced  under  suitable  pressure,"  and  that 
the  apparatus  is 'to  be  charged  at  a  central 
station  and  transported  to  the  place  of  use 
as  a  complete  article  or  package.    The  ap- 


be  debarred  from  his  patent  by  reason  of 
his  having  first  patented,  or  caused  his  in- 
vention to  be  patented,  in  a  foreign  country. 
Indeed,  it  would  be  so  manifestly  unjust 
tbat  a  patentee  should  lose  the  full  fruits 
of  his  patent  by  the  fact  that  some  inter- 
meddler  had  caused  the  invention  to  be  pat- 
ented abroad,  that  we  could  not  give  that 
construction  to  the  section,  unless  its 
phraseology  imperatively  demanded  it.  This 
eonatruction  would  suggest  an  excellent  de- 
vice to  an  enemy  to  bring  about  the  ter- 
mination of  an  inconvenient  patent." 

The  provisions  of  U.  8.  Rev.  Stat  §  4887, 
do  not  apply  where  the  foreign  patent  was 
taken  out  by  another  than  the  patentee  of 
the  patent  whose  term  is  souj^ht  to  be 
shortened,  and  without  his  acquiescence  or 
consent.  Willcox  ft  G.  Sewing  Mach.  Co. 
V.  Industrial  Mfg.  Co.  110  Fed.  210,  re- 
versed on  other  grounds  in  50  C.  C.  A.  387, 
112  Fed.  535. 

But  U.  S.  Rev.  SUt.  §  4887,  applies 
whether  the  foreign  patent  is  granted  to 
the  inventor  who  makes  the  application  in 
this  country,  or  to  some  other  person  to 
whom  he  has  caused  the  invention  to  be  pat- 
ented. Edison  Electric  Light  Co.  v.  United 
States  Electric  Lighting  Co.  35  Fed.  134. 

And  the  assignment  bv  an  applicant  for 
a  domestic  patent  of  all  his  right  thereto 
before  applying  fcMr  and  receiving  a  foreign 
patent  for  the  same  invention  does  not  pre- 
vent the  application  of  tha  provisions  of  U. 
8.  Rev.  Stat  §  4887,  limiting  the  term  of 
a  United  States  patent  to  that  of  a  foreien 
patent  for  the  same  invention,  previously 
obtained.  John  R.  Williams  Co.  v.  Miller, 
D.  ft  P.  Mfg.  Co.  115  Fed.  526. 

The  burden  rests  upon  the  party  claiming 
that  a  United  States  patent  expired,  under 
U.  S.  Rev.  Stat.  §  4887,  by  reason  of  the 
termination  of  a  prior  foreign  patent  for 
the  same  invention,  to  show  that  the  foreign 
patent  was  obtained  by  the  American  pat- 
entee or  with  his  consent.  Sawyer  Spindle 
Co.  V.  Carpenter,  133  Fed.  238,  affirmed  in 
75  C.  C.  A.  162,  143  Fed.  976. 

A  British  patent  for  the  same  invention 
aa  a  later  patent  in  the  United  States  can- 
not be  said  to  have  been  taken  out  by  an 
intermeddler,  so  as  to  avoid  the  application 
•0  L.  ed. 


of  U.  S.  Rev.  Stat.  §  4887,  because  there 
is  no  direct  evidence  to  show  the  authority 
of  the  persons  under  whose  instructions  tha 
British  patent  was  procured,  where  the 
inventor  or  whoever  controlle4  the  inven- 
tion knew  that  there  was  to  be  an  applica- 
tion for  a  British  patent,  and  that  there 
was  a  purpose  to  take  it  out,  and  there  is 
no  evidence  that  he  ever  repudiated,  or  at- 
tempted to  repudiate,  the  British  patent 
until  after  suit  was  commenced.  United 
Shoe  Machinery  Co.  v.  Duplessis  Shoe  Ma- 
chinery Co.  84  C.  C.  A.  76,  165  Fed.  842, 
affirming  148  Fed.  31. 

Identity  of  invention. 

The  test  of  identity  for  the  purpose  of 
determining  whether  the  invention  has  pre- 
viously been  patented  in  a  foreign  coun- 
try, within  the  meaning  of  U.  S.  Rev.  Stat 
§  4887,  Comp.  Stat  1913,  §  9431,  depends 
upon  these  propositions:  "Is  the  principal 
invention  of  the  domestic  patent  found  in 
the  foreign  patent?  Is  the  subject-matter 
of  the  one  the  same  in  all  essential  par- 
ticulars as  that  of  the  other?  In  other 
words,  will  a  structure  made  pursuant  to 
the  foreign  patent  infringe  the  domestio 
patent?  Could  both  the  patents  have  been 
granted  in  this  country?"  Accumulator 
Co.  V.  Julien  Electric  Co.  57  Fed.  605. 

Formal  identity  of  claims  is  not  neces- 
sary to  constitute  identitv  of  patent,  within 
the  purview  of  U.  S.  Rev.  Stat.  §  4887. 
Substantial  identity  of  invention,  as  covered 
by  the  claims,  is  sufficient  United  Shoe 
Machinery  Co.  v.  Duplessis  Shoe  Machinery 
Co.  148  Fed.  31,  affirmed  in  84  C.  C.  A.  76, 
155  Fed.  842. 

The  identity  of  invention  required  by  U. 
S.  Rev.  Stat.  §  4887,  is  of  material  substance, 
and  does  not  extend  to  mere  details.  J.  L. 
Mott  Iron  Works  v.  Henry  McShane  Mfg. 
Co.  80  Fed.  516. 

Mere  changes  in  detail  which  do  not  affect 
the  essence  of  the  invention  as  covered  by  the 
respective  patents,  t.  e.,  differences  whidi 
do  not  involve  patentable  invention,  cannot 
be  set  up  to  defeat  the  application  of  the 
provisions  of  U.  S.  Rev.  Stat  §  4887,  that 
domestic  patents  shall  expire  with  the  ex- 

197 


160,  160 


6UPK£3i£  COURT  OF  THE  UNITED  SIATES. 


Oct.  T 


paratus  it  described  and  illustrated,  and  it 
is  said  that  it,  embodying  the  invention,  con- 
sists esse.tlally  in  a  closed  receptacle  con- 
taining acetylene  gas  in  solution,  and  hav- 
ing an  outlet  for  the  gas  so  positioned  as  to 
be  normally  above  the  level  of  the  solution, 
and  adapted  to  be  provided  with  a  burner 
or  connected  with  a  pipe  system  for  the  final 
use  or  distribution  of  the  gas  which  escapes 
from  the  solution  owing  to  the  diminution 
of  pressure  when  the  outlet  is  opened.  It 
is  constructed  and  arranged  "for  the  char- 
ging process  as  well  as  for  the  discharging 
process."  Inlet  and  outlet  passages  are 
provided  with  suitable  valves  or  cocks  to 
close  the  same,  and  it  is  desirable,  it  is 
said,  for  the  proper  operation  of  the  burn- 
ers supplied   in   this  way    that    the    gas 


piration  of  a  prior  foreign  patent  for  the 
same  invention.  Thomson-Houston  Electric 
Co.  V.  McLean,  82  C.  C.  A.  620,  153  Fed. 
883. 

It  is  only  a  patent  for  an  invention  that 
has  been  previously  actually  patented  in  a 
foreign  country  that  is  limited  by  the  for- 
eign patent.  The  description  of  the  inven- 
tion may  affect  the  validity  of  the  domestic 
one,  and  may  not,  but  will  not  limit  it. 
Holmes  Electric  Protective  Co.  v.  Metro- 
politan Burglar  Alarm  Co.  22  Fed.  341. 

The  provisions  of  U.  S.  Hev.  Stat.  §  4887, 
apply  only  when  the  foreign  patent  covers 
what  is  patented  in  the  Unit^  States,  not 
when  the  foreign  patent  merely  describes  or 
discloses,  instead  of  claiming,  the  invention 
of  the  later  United  States  patent.  Westing- 
house  Electric  &  Mfg.  Co.  v.  Stanley  Instru- 
ment Co.  71  C.  C.  A.  189,  138  Fed.  823. 

The  comparison  between  the  foreign  and 
the  United  States  patents  for  the  purpose 
of  determining  whether  the  invention  was 
previously  patented  in  the  foreign  country, 
within  the  meaning  of  U.  S.  Kev.  Stat.  § 
4887,  should  be  instituted  between  the  pat- 
ents as  they  were  issued,  and  not  between 
the  foreign  patent  and  the  United  States 
patent  as  the  latter  exists  after  being  cut 
down  by  a  disclaimer,  and  limited  by  an  art 
existing  in  the  United  States  of  which  the 
inventor  knew  nothing.  If  a  patent  when 
granted  covers  an  invention  which  has  been 
previously  covered  by  a  foreign  patent,  it 
expires  with  the  foreign  patent,  notwith- 
standing the  fact  that  it  has  subsequently 
been  pared  down  to  cover  only  one.  method 
of  practising  the  invention,  or  restricted  to 
a  single  claim.  Accumulator  Co.  v.  Julien 
Electric  Co.  supra. 

The  amendment  of  a  foreign  patent  sev- 
eral years  after  it  was  issued  cannot  affect 
the  question  of  the  identity  of  such  patent 
under  U.  S.  Rev.  Stat.  §  4887,  witii  a  sub- 
sequent domestic  patent.  Thomson-Houston 
Electric  Co.  v.  McLean,  supra. 

The  generic  claim  in  a  United  States  pat- 
ent which,  by  disclaimer,  is  limited  to  the 
specific  claim  of  a  prior  British  patent, 
e]q>ire8,  under  U.  S.  Rev.  Stat,  f  4887,  when 
108 


should  be  delivered  thereto  under  a  sub- 
stantially uniform  pressure  only  ili^tly 
above  the  atmospheric  pressure,  and  for 
this  purpose  means  are  provided.  A  redu- 
cing valve  is  shown  as  tlie  means  interposed 
between  the  interior  of  the  receptacle  which 
contains  the  dissolved  gas  and  the  outlet 
from  which  the  gas  is  allowed  to  escape. 

Claims  1,  2,  and  6  are  those  with  which 
we  are  concerned,  and  are  as  follows: 

''1.  A  closed  vessel  contsiining  a  super- 
saturated solution  [160]  of  acetylene  pro- 
duced by  forcing  acetylene  into  a  solvent 
under  pressure,  said  vessel  having  an  out- 
let for  the  acetylene  gas  which  escapes  from 
the  solvent  when  the  pressure  is  released  or 
reduced,  and  means  for  controlling  said  out- 
let   whereby    the    gas    may    escape    there- 


the  British  patent  expires.  Sawyer  Spindle 
Co.  V.  Carpenter,  75  C.  C.  A.  162,  143  Fed. 
976,  afiirming  133  Fed.  238. 

Ihe  Lnglish  and  American  patents  for  the 
application  to  corrugated  metal  rolling  shut- 
ters of  one  or  more  deadening  strips  or 
lengths  of  soft  and  pliant  material,  dis- 
posed in  such  manner  as  to  act  as  a  cushion 
between  the  coils  of  the  shutters,  are  for  the 
same  invention,  within  the  meaning  of  U. 
8.  Kev.  Stat.  §  4887,  where  the  only  thing 
added  in  tlie  American  patent  is  tlie  fast- 
ening of  the  strips  theretofore  fastened  at 
the  ends,  at  such  intermediate  points  as 
should  be  required.  Clark  v.  Wilson,  28 
Fed.  05. 

There  is  sudi  identity  between  the  Cana- 
dian patent  No.  7,128,  for  a  balanced  fioat 
valve  in  combination  with  other  parts  in  an 
open  tank  for  intermittent  supply,  and  U. 
S.  patent  No.  245,358,  for  the  same  thing 
in  various  combinations  with  other  parts 
in  such  tank,  tliat,  by  the  expiration  of  the 
former  patent,  which  was  first  granted,  the 
United  States  patent  also  expired.  J,  L. 
Mott  Iron  Works  v.  Henry  McShane  Mfg. 
Co.  80  Fed.  616. 

In  Commercial  Mfg.  Co.  v.  Fairbank  Can- 
ning Co.  135  U.  S.  176,  34  L.  ed.  88,  10 
Sup.  Ct.  Rep.  718,  it  was  held,  afiirming  27 
Fed.  78,  that  the  Bavarian  patent  of  April 
8,  1873,  expiring  April  8,  1876,  and  the 
Austrian  patent  of  October  31,  1860,  ex- 
piring May  26,  1876,  were  for  the  same  in- 
vention as  the  United  States  patent  No. 
146,012,  granted  December  30,  1873,  for 
an  improvement  in  treating  animal  fat%  and 
that  therefore  the  latter  patent  expired  by 
reason  of  the  expiration  of  the  foreign 
pat^its. 

Ihere  is  not  such  identity  between  a  claim 
of  a  British  and  later  United  States  pat- 
ents as  causes  the  latter  patents  to  expire 
under  U.  S.  Rev.  Stat.  §  4887,  when  the 
British  patent  expires,  where  the  claim  in 
question  in  the  latter  patent,  although  neo- 
essarily  including  all  the  elements  of  the 
United  States  patents,  also  includes  other 
elements  establishing  a  new  combination 
which  is  an  essential,  novel,  and  patentable 

ISO  U.  8. 


1915. 


FIREBALL  O.  T.  ft  L  CO.  t.  COMMERCIAL  ACETYLENE  CO. 


160 


tbrougli  at  Bubstmntially  unifonn  pressure, 
■obstantUlly  as  described. 

"2.  A  prepared  package  eonsisting  of  a 
tigbt  shell  or  vcaael;  a  solvent  of  acetylene 
contained  within  said  vessel;  and  ace^lene 
dissolved  in  and  held  by  said  solvent  under 
pressnre  and  constituting  therewith  a 
supersaturated  solution,  the  package  being 
provided  at  a  point  above  the  solvent  with 
a  reducing  valve,  substantially  as  and  for 
the  purpose  set  forth. 

"5.  As  a  new  article  of  manufacture,  a 
gas  package  comprising  a  holder  or  tight 
vessel;  a  contained  charge  of  acetone;  a 
volume  or  body  of  gas  dissolved  by  and 
compressed  and  contained  within  the  sol- 
vent; and  a  reducing  valve  applied  to  an 


opening  extending  to  the  interior  of  the 
holder  above  the  level  of  the  solvent,  sub- 
stantially as  set  forth." 

It  is  manifest,  therefore,  that  the  inven- 
tion is  of  an  i^paratus  designed  to  make  use 
of  the  property  of  acetylene  and  other  gases 
of  solubility  in  a  liquid  in  accordance  with 
the  law  of  solution  (Henry's  law),  which 
is  -that  the  amount  of  gas  absorbed  by  any 
liquid  is  proportioned  to  the  pressure  exer- 
cised upon  the  gas.  Acetone  is  niuiitiuned  in 
claim  5  as  a  solvent. 

We  may  now  turn  to  the  various  patents 
whose  expiration,  it  is  contended,  terminates 
the  United  States  paterit. 

The  law  is  (§  4R87,  Revised  Statutes, 
Comp.  Stat.  1913,  §  9431)  that  "every  pat- 
ent granted  for  an  invention  which  has  bee  i 


improvement  on  what  was  claimed  in  the 
United  States  patents.  Westinghouse  Elec- 
tric ft  Mfg.  Co.  V.  Stanley  Instrument  Co. 
71  C.  C.  A.  189,  138  Fed.  823. 

So  much  of  U.  S.  patent  No.  448,072,  for 
improvements  in  the  construction  of  ca- 
nau,  as  involves  the  new  and  valuable  con- 
ceptions not  disclosed  in  the  prior  British 
patent  No.  10,519,  of  extending  the  longi- 
tudinal wall  partition  or  mid-feather 
throughout  the  whole  length  of  the  canal, 
thus  closing  the  gap  at  each  end  of  the  par- 
tition wall,  contemplated  by  the  British 
patent,  did  not  expire  with  the  expiration 
of  the  latter  patent,  although,  oroadly 
speaking,  the  two  patents  are  the  same. 
Aquarama  Co.  v.  Old  Mill  Co.  124  Fed.  220. 

In  accord  with  the  decision  in  Fibeball 
Oa8  Tank  ft  Illuminating  Co.  v.  Commsb- 
oiAL  AcBTYLKNE  Co.,  that  thcrs  was  a  lack 
of  identity  between  the  Claude  ft  Hess  do- 
mestic patent  No.  664,383,  for  an  improved 
apparatus  for  the  storage  and  distribution 
of  acetylene  gas,  designed  to  make  use  of 
the  property  of  that  and  other  gases  of  solu- 
bility in  a  liquid,  and  prior  foreign  patents 
for  methods  of  storing  acetylene  gas,  b?sed 
upon  such  solubility,  tlic  devices  described 
in  which  were  not  a  result  of  the  opera- 
tion ,of  the  methods,  is  Acme  Acetylene  Ap- 
pliance Co.  v.  Commercial  Acetylene  Co. 
112  C.  C.  A.  673,  102  Fed.  321,  affirming  188 
Fed.  89.  An  opposite  conclusion  had  been 
reached  in  Commercial  Acetylene  Co.  v. 
Searchlight  Gas  Co.  188  Fed.  85,  and  in  .Com- 
mercial Acefylens  Co.  v.  Schroeder,  121  C. 
C.  A.  474,  203  Fed.  276,  affirming  197  Fed. 
908. 

Lack  of  identity  between  the  foreign  and 
domestic  patents  is  not  shown  because  tlie 
daim  of  the  domestic  patent  is  for  a  prod- 
uct, and  that  of  the  foreign  patent  is  for 
a  process,  where  the  process  makes  the  I 
product,  and  the  product  can  be  made  only 
07  the  process'.  Accumulator  Co.  v.'  Julien 
Oeetric  Co.  57  Fed.  605. 

Partial  expiration. 

All  the  claims  of  a  domestic  patent  do 
not  necessarily  expire  with  a  foreign  patent 
because  of  the  provisions  of  U.  S.  Kev. 
SUt.  §  4887,  Comp.  Stat.  1913,  f  9481, 
«•  L.  ed. 


that  "every  patent  granted  for  an  invention 
which  has  been  previously  patented  in  a 
foreign  country  BhsM  be  so  limited  as  to 
expire  at  the  same  time  with  the  foreign 
patent,"  but  only  such  claims  expire  as  are 
embodied  in  the  foreign  patent.  Leeds  ft  C. 
Co.  V.  Victor  Talking  Mach.  Co.  213  U. 
S.  301,  53  L.  ed.  805,  29  Sup.  Ct.  Rep.  495. 
The  expiration  of  foreign  patents  for 
sound  reproducers  or  recorders  does  not, 
under  U.  S.  Rev.  Stat.  §  4887,  Comp.  Stat. 
1913,  §  9431,  making  domestic  patents  ex- 
pire with  foreign  patents  for  the  same  in- 
vention, affect  the  duration  of  the  Berliner 
patent  No.  534,543,  for-  sound -produein*; 
apparatus,  so  far  as  claim  5,  for  a  method, 
and  claim  35,  for  a  combination,  are  con- 
cerned, even  though  such  recorder  or  repro- 
ducer is  made  the  subject  of  one  of  the 
claims  of  such  patents.  Leeds  ft  C.  Co.  v. 
Victor  Talking  Mach.  Co.  supra.  The  court 
elaborately  distinguished  Siemen  v.  Sellers 
(Guarantee  Ins.  Trust  ft  S.  D.  Co.  v. 
fellers)  123  U.  S.  276,  31  L.  ed.  153,  8 
Sup.  Ct.  Rep.  117.  Referring  to  the  fol- 
lowini?  passage  in  the  earlier  case  ("It  is 
contended  by  the  counsel  of  the  complain- 
ants that  the  American  patent  contains  im- 
Srovements  which  are  not  exhibited  in  the 
inglish  patent.  But  if  this  were  so,  it 
would  not  help  the  complainants.  The  prin- 
cipal invention  is  in  both;  and  if  the 
American  patent  contains  additional  im- 
provements, this  fact  cannot  save  the  pat- 
ent from  the  operation  of  the  law  which 
is  invoked,  if  it  is  subject  to  that  law 
at  all.  A  patent  cannot  be  exempt  from 
the  operation  of  the  law  by  adding  some 
new  improvements  to  the  invention;  and 
cannot  be  construed  as  running  partly  from 
one  date  and  partly  from  another.  This 
would  be  productive  of  endless  confusion"), 
the  court  said:  "This  passage  must  be  con- 
strued by  what  precedes  it.  It  was  said 
that  there  was  no  essential  difference  be- 
tween the  patents.  'They  described  the 
same  functions  in  all  essential  particulars,' 
is  the  language  used.  'The  principal  inven- 
tion,' therefore,  was  'the  same  in  both,'  and 
the  improvements,  which  it  was  asserted  the 
American  patent  contained,  did  not  destrov 
its  essence  or  its  identity  with  the  English 

199 


160,  161 


SUPREME  COURT  OF  THE  UNIl^D  STATES. 


OOT.  IkBM, 


previously  patented  in  a  foreign  country 
shall  be  so  limited  as  to  expire  at  the  same 
time  with  the  foreign  patent,  or,  if  there 
be  [161]  more  than  one,  at  the  same  time 
with  the  one  having  the  shortest  term,  and 
in  no  case  shall  it  be  in  force  more  than 
seventeen  years." 

The  question  then  is  one  of  identity  be- 
tween the  United  States  patent  and  the 
foreign  patents.    The  first  of  the  latter  re- 


lied upon  is  the  British  patent  to  Claude 
and  Hess  of  1896.  The  title  is,  "An  Im- 
proved Method  of  Storing  Acetylene  for 
Lighting  and  Other  Purposes."  The  speci- 
fication states: 

"This  invention  relates  to  an  improved 
method  of  storing  acetylene,  for  lighting 
and  other  purposes,  in  a  small  volume  in 
order  that  it  may  be  supplied  in  portable 
form  to  the  customer,  and  it  consists  in  dis- 


patent;  necessarily,  therefore,  did  not  save 
it  'from  the  operation  of  the  law.'  And 
the  court  meant  no  more  than  that.  It  was 
not  said  that  a  patentable  improvement 
could  not  be  made  which  could  be  secured 
by  a  patent  which  would  endure  beyond  the 
expiration  of  a  prior  foreign  patent  for 
that  which  was  improved.  Such  a  ruling 
would  contravene  the  right  given  by  the 
statute." 

Following  Siemen  v.  Sellers,  supra,  the 
court  in  Western  Electric  Co.  v.  Citizens' 
Teleph.  Co.  106  Fed.  216,  held  that  the  ex- 
piration of  a  prior  foreign  patent  embodying 
in  its  description  of  the  invention  the  es- 
sence of  the  later  United  States  patent  con- 
tained in  one  of  its  claims  terminates  the 
United  States  patent,  even  though  there  are 
differences  in  some  details  between  the  for- 
eign and  domestic  patents,  upon  which  in- 
dependent claims  might  be  based. 

Recent  legislation. 

By  the  act  of  March  3,  1897,  U.  S.  Rev. 
Stat.  §  4887,  Comp.  Stat.  1913,  §  0431,  was 
so  amended  as  not  to  limit  the  life  of  a 
domestic  patent  granted  on  an  application 
filed  on  or  after  January  1,  1898,  to  the  life 
of  the  prior  foreign  patent,  the  only  re- 
quirement being  that  the  domestic  applica- 
tion be  filed  within  seven  months  from  the 
filing  of  the  application  of  the  foreign  pat- 
ent. This  section  was  further  amended  by 
the  act  of  March  3,  1903,  which  did  not 
purport  to  affect  the  term  of  patents  in  any 
respect,  but  dealt  only  with  their  validity. 

Patents  granted  before  January  1,  1898, 
or  upon  applications  filed  prior  to  that  date, 
are,  by  the  express  provisions  of  the  act 
of  March  3,  1897,  §§  3,  8,  left  unaffected  as 
to  their  validity  or  term,  governed  as  to 
the  latter,  where  the  invention  was  pre- 
viously patented  in  a  foreign  country,  by 
U.  S.  Rev.  Stat.  §  4887,  in  its  original  form. 
Sawyer  Spindle  Co.  v.  Carpenter,  76  C. 
C.  A.  162,  143  Fed.  976,  affirming  133  Fed. 
238. 

A  United  States  patent  which,  by  reason 
of  the  saving  clause  in  the  amendatory  act 
of  March  3,  1807,  expired  imder  U.  S.  Rev. 
Stat.  §  4887,  as  that  section  originally 
stood,  when  the  prior  foreign  patent  for  the 
same  invention  expired,  was  not  revived  by 
the  further  amendment  of  March  3,  1903, 
which  did  not  purport  to  affect  the  term 
of  patents  in  any  respect,  but  only  the 
requisites  of  their  validity.  Sawyer  Spindle 
Co.  V.  Carpeiter,  supra. 

The  term  of  a  United  States  patent  which, 
100 


under  U.  S.  Rev.  Stat.  §  4887,  Comp.  Stat. 
1913,  §  9431,  would  expire  with  the  expira- 
tion of  the  term  of  a  foreign  patent  pre- 
viouly  granted  for  the  same  invention,  was 
not  extended  by  the  provisions  of  the  treaty 
of  Brussels  of  December  14,  1900,  art.  4  bis, 
that  patents  applied  for  in  the  different 
contracting  states  by  persons  admitted  to 
the  benefit  of  the  convention  shall  be  inde- 
pendent of  the  patent  obtained  for  the 
same  invention  in  other  states,  and  that  this 
provision  shall  apply  to  existing  patents, 
but  such  provisions,  if  construed  as  they 
must  be,  in  accordance  with  the  declaration 
of  the  Brussels  Convention  at  the  instance 
of  the  American  delegates,  affect  only  those 
existing  patents  whose  terms  might  other- 
wise be  shortened  by  the  lapsing  of  foreign 
patents.  Cameron  Septic  Tank  Co.  v.  Knox- 
ville,  227  U.  S.  39,  57  L.  ed.  407,  33  Sup. 
Ct.  Rep.  209. 

The  omission  from  the  act  of  March  3, 
1903  (32  SUt.  at  L.  1225,  chap.  1010,  Comp. 
Stat.  1013,  §  9431),  enacted  to  make  effec- 
tive the  Brussels  treaty  of  December  14, 
1900,  for  the  protection  of  industrial  prop- 
erty, of  any  provision  to  carry  out  art.  4  bis, 
which  declares  that  patents  applied  for  in 
the  different  contracting  states  by  persona 
admitted  to  the  benefit  of  the  convention 
shall  be  independent  of  the  patent  obtained 
for  the  same  invention  in  other  sts^s,  and 
that  this  provision  shall  apply  to  existing 
patents,  which  article,  in  the  light  of  sul^ 
sequent  congressional  action  and  of  legis- 
lative action  of  some  of  the  other  contract- 
ing nations,  cannot  well  be  deemed  self- 
executing,  leaves  in  force  as  to  existing 
United  States  patents  the  provisions  of  U. 
S.  Rev.  Stat.  §  4887,  Comp.  Stat.  1013,  § 
0431,  under  which  such  patents  will  expire 
with  the  expiration  of  tlie  term  of  a  foreign 
patent  previously  granted  for  the  same  in- 
vention. Cameron  Septic  Tank  Co.  v.  Knox- 
ville,  supra. 

To  the  same  effect  are  United  Shoe 
Machinery  Co.  v.  Duplessius  Shoe  Ma- 
chinery Co.  84  C.  C.  A..  76,  155  Fed.  842, 
affirming  148  Fed.  31;  Malignani  v.  Hill- 
Wrijght  Electric  Co.  177  Fed.  430;  Malig- 
nani V.  Jasper  Marsh  Consol.  Electric  Lamp 
Co.  180  Fed.  442;  Commercial  Acetylene  Co. 
V.  Searchlight  Qas  Co.  197  Fed.  908,  af- 
firmed in  121  C.  C.  A.  474,  203  Fed.  276. 

A  contrary  view  was  expressed  in  Henne- 
bique  Constr.  Co.  v.  Myers,  97  C.  C.  A.  289, 
172  Fed.  800,  but  the  judge  announcing  suc^ 
view  r^narked  in  Union  Typewriter  Co.  v. 
Smith,  173  Fed.  288,  that  his  opinion  WM 
not  the  opinion  of  the  court. 

230  U.  8. 


1»J5. 


FIREBALL  G  T.  ft  I.  CO.  v.  COMMERCIAL  ACETYLENE  CO.       161-163 


solving  the  acetylene  under  pressure  irf  cer- 
tain liquids,  the  effect  of  pressure  being  to 
inereaae  the  solubility  of  the  acetylene  and 
so  enable  a  considerable  quantity  of  acety- 
lene to  be  stored  in  a  small  volume  in 
readiness  to  be  supplied  for  any  purpose 
for  which  it  may  be  required. 

''Liquified  acetylene  occupies  the  least 
volume,  but  the  pressure  is  very  high  and 
may  become  excessive  should  the  critical 
temperature  (37^.6)  of  acetylene  be  acci- 
dentally exceeded.  On  the  other  hand,  sim- 
ple compression  of  the  gas  enables  danger- 
ous pressures  to  be  avoided,  but  the  quan- 
tity which  can  be  stored  in  this  way  is  too 
small.  For  these  reasons  we  avail  ourselves 
of  the  great  solubility  of  acetylene  in  cer- 
tain liquids,  and  increase  this  solubility  by 
pressure,  and  this  method  of  storing  acety- 
lene gas  is  the  invention  which  we  hereby 
broadly  claim  as  our  invention,  whatever 
may  be  the  liquid  employed,  the  kind  of 
apparatus  used,  or  mode  of  operation." 

Examples  of  liquids  which  may  be  em- 
ployed as  solvents  are  given.  Among  these 
are  mentioned  "alcohols"  and  "particularly 
acetones."  It  is  stated  that  mixtures  and 
combinations  of  these  bodies  vary  their 
solvent  power,  and  of  this  property  the 
patentees  said  they  availed  themselves. 
And  further,  that  the  solvent  power  in- 
creases with  [162]  pressure,  and  the  solu- 
tion of  the  gas  in  a  liquid  is  the  principle 
of  the  invention. 

The  process  described  as  carried  on, 
though  subject  to  modifications,  is  as  fol- 
lows: Ihe  gas  is  dissolved  in  the  liquid 
chosen,  and  the  "solution  under  pressure, 
however  obtained,  is  filled  into  a  receiver 
of  metal  or  of  glass  (such  as  used  for  soda 
water)  capable  of  resisting  the  pressure 
employed.  The  receiver  has  a  cock  and  the 
necessary  adjuncts  for  connection,  directly 
or  through  an  expansion  chamber,  with  the 
appliances  in  which  the  gas  is  used  by  the 
consumer,  the  substitution  of  charged  for 
empty  receivers  being  readily  effected.  The 
storage  receivers  may  vary  in  dimensions 
from  a  small  portable,  to  a  large  fixed,  gas 
holder." 

The  claims  describe  the  method  and  in- 
vention to  he  the  utilization  for  the  pur- 
pose of  storage,  in  a  small  volume,  of  large 
quantities  of  acetylene  gas,  of  the  solubility 
of  the  gas  in  certain  liquids  by  the  applica- 
tion of  pressure,  and  the  novel  application 
as  a  solvent  of  acetylene  under  pressure  for 
the  purpose  of  storage,  transportation,  and 
utilization  for  industrial  purposes;  and  the 
employment  (claim  6)  of  a  receiver  eon- 
taining  a  liquid  charged  with  acetylene 
under  pressure,  and  from  which  the  acety- 
lene is  evolved  when  required  for  use. 

Defendants  have  fixed  on  claim  6  at  es- 
«•  L.  ed. 


tablishing  identity,  and  the  British  law  of 
patents  is  relied  on.  British  United  Shoe 
Machinery  Co.  v.  Fussell  &  Sons,  45  R.  P. 
C.  631.  The  argument  is  that  nst  only  a  re- 
ceiver is  claimed,  but  a  receiver  of  the 
exact  or  equivalent  kind  described  in  the 
United  States  patent.  0>unsel  say :  "Evolv- 
ing gas  from  a  receiver  in  which  the  gas  is 
under  pressure  necessarily  implies  an  outlet, 
an  outlet  necessarily  implies  a  valve,  and  a 
valve  necessarily  implies  a  control  of  the  es- 
caping gas."  They  say  further,  quoting  the 
cited  case:  "  'A  man  must  distinguish  what 
is  old  from  what  is  new  by  his  claim,  but  he 
has  not  got  to  distinguish  what  [163]  is  old 
from  what  is  new  in  his  claim.' "  Applying 
the  principle  and  asserting  that  the  devices 
described  in  the  United  States  patent  were 
old,  it  is  contended  that  they  would  be  im- 
plied as  necessary  elements  of  the  claim. 

Taken  at  its  full  import  the  argument 
would  seem  to  establish  that  there  could 
be  no  patent  for  an  apparatus  to  execute 
a  process  if  it  (apparatus)  were  a  combina- 
tion of  old  elements.  In  many  cases,  there- 
fore, the  argument  would  confound  process 
and  apparatus,  but  it  is  established  that  a 
process  may  be  independent  of  the  instru- 
ments employed  or  designed  to  perform  it. 
They  may  be  independent  or  they  may  be 
related.  "They  may  approach  each  otiier 
so  nearly  that  it  will  be  difficult  to  distin- 
guish the  process  from  the  function  of  the 
apparatus.  In  such  case  the  apparatus 
would  be  the  dominant  thing.  But  the 
dominance  may  be  reversed  and  the  process 
carry  an  exclusive  right,  no  matter  what 
apparatus  may  be  devised  to  perform  it." 
United  States  ex  rel.  Steinmetz  v.  Allen, 
192  U.  S.  643,  659,  48  L.  ed.  555,  601,  24 
Sup.  Ct.  Rep.  416.  However  related  they 
may  be,  to  which  may  be  assigned  domi- 
nance may  be  important  in  considering  the 
patentable  novelty  of  either,  or,  it  may  be, 
the  infringement  of  either,  but  not  whether 
one  has  expired  because  the  other  has. 
Leeds  k  C.  Co.  v.  Victor  Talking  Mach.  Co. 
213  U.  S.  301,  318,  53  L.  ed.  805,  812,  29 
Sup.  Ct.  Rep.  495.  The  various  questions 
thus  arising  may  indeed  have  complexity 
(Risdon  Iron  k  Locomotive  Works  v.  Med- 
art,  158  U.  S.  68,  39  L.  ed.  899,  15  Sup.  Ct. 
Rep.  745 )»  but  they  must  not  be  con- 
founded. 

A  great  deal  of  what  we  have  said  ap- 
plies to  the  German  patent.  Its  claim  is 
for  "the  employment  of  liquids  charged  with 
acetylene  under  pressure  for  the  purpose  of 
utilizing  acetylene  for  illumination,  motive 
power,  heating,  and  the  like,  characterized 
by  acetylene  being  absorbed  under  pressure 
by  a  suitable  liquid,  and  the  liquid  satu- 
rated with  acetylene  being  preserved  or  con- 
tained in  8uitiJ>le  vessels,  from  which  the 

801 


168-166 


SUFIUSMB  COUBT  OF  TH£  UNITED  Sl^ATKS. 


Oct.  Tmui 


acetylene  gas  can  be  supplied  for  use,  a 
pressure  regulator  being  preferably  inter- 
posed." 

[164]  Ibis  claim  is  preceded  by  a  lengthy 
explanation  (too  lengthly  to  quote)  setting 
forth  the  properties  of  acetylene  and  its 
absorption  by  certain  liquids,  and  the  de- 
pendence of  the  amount  of  absorption  upon 
pressure,  and  the  use  of  such  properties  and 
pressure  for  storing  and  utilizing  the  gas. 
It  is  said:  "The  vessels  for  holding  the 
liquid  saturated  with  acetylene  must  be 
provided  with  a  cock  or  Talve  from  which 
the  gas  escapes  according  to  the  diminution 
of  pressure  which  occurs,  and  can  then  be 
used  for  the  customary  purposes."  And  an 
apparatus  is  described,  "with  whose  aid  the 
storing  process  can  be  carried  into  prac- 
tice." Care  is  talcen  to  mention  "that  th 
process  is  in  no  way  limited  to  the  appa- 
ratus described  and  shown."  It  is  clear, 
therefore,  that  the  process  and  the  described 
vessel  of  storage  are  separate,  and  that  the 
invention  is  for  the  former.  An  apparatus 
was  mentioned  in  display  of  the  utility  of 
the  process.  See  Tilghman  v.  Proctor,  102 
U.  S.  707,  26  L.  ed.  279.  It  was  not  the  in- 
tention to  claim  a  particular  form  of  device 
and  secure  a  patent  for  it. 

The  title  of  the  French  patent  is  "A 
System  of  Storing  Acetylene."  And  it  is 
said  that  the  object  of  the  "invention  is  a 
system  of  storing  acetylene  whereby  acety- 
lene to  be  used  for  any  purpose  whatso- 
ever, especially  for  lighting,  may  be  in- 
closed in  a  restricted  space  and  easily  trans- 
ported." 

A  description  of  the  process  is  given  and 
the  properties  of  the  gas  and  its  solvent 
which  make  the  law  of  the  process.  And  it 
is  said  the  solution  under  pressure  obtained 
by  the  means  described,  "or  by  any  other 
means,  is  placed  in  a  metal  recipient  (or 
a  glass  recipient,  like  seltser  water  siphons) 
susceptible  of  resisting  the  pressure  em- 
ployed. The  recipient  is  provided  with  a 
faucet  and  the  necessary  fittings  to  enable 
it  to  be  connected,  either  directly  or  by 
means  of  an  expander,  with  the  apparatus 
of  consumption  at  the  house  of  the  con- 
sumer." 

[165]  The  claims  were: 

"1.  For  the  storage  of  large  quantities 
of  acetylene  in  a  small  space,  the  applica- 
tion of  the  solubility  of  this  gas  in  certain 
liquids,  using  pressure  for  the  purpose  of 
increasing  the  amount  of  gas  dissolved  per 
unit  of  volume  of  the  liquid,  as  described 
above; 

"2.  For  the  purpose  of  effecting  the  solu- 
tion under  pressure  of  large  quantities  of 
acetylene  in  a  small  volume  of  liquid,  the 
use  of  methods  and  apparatus  employed  to 
cause  the  solution  under  pressive  of  6ther 
802 


gas^  in  other  liquids,  especially  of  car* 
bonis  acid  in  water." 

There  were  certificates  of  addition  to  the 
patent,  the 'first  of  which  sets  forth  the  ad- 
vantage of  mixing  the  liquid  with  a  porous 
body  capable  of  absorbing  it.  "An  expedi* 
ent  and  practical  form  of  accomplishing 
this"  is  set  forth  in  the  second  certificate. 
The  third  certificate  of  addition  connects 
the  patent  "with  a  safety  appliance  to  be 
adapted  especially  on  recipients  where  the 
acteylene  is  dissolved  in  an  appropriated 
liquid,  such  as  acetone,  according  to  the 
process  described  in"  the  patent 

The  contention  is  that  the  patent  is  for 
a  "system,"  not  for  a  "process  or  method," 
and  that,  besides,  the  "  'r4sum6' "  or  claims 
of  the  first  patent  espeeially  refer  to  both 
"'method  and  apparatus,'"  and  that  "the 
certificates  of  addition,  especially  the  last 
two,  unquestionably  are  for  the  apparatus, 
namely,  the  gas  tank." 

We  think  the  contentions  are  untenable. 
The  distinction  between  system  and  method 
is  too  subtle,  and,  besides,  it  is  clear  that 
the  patentee  considered  the  words  as  mean- 
ing the  same  thing,  and  the  apparatus  re- 
ferred to  was  one,  it  was  said,  "employed 
to  cause  the  solution  under  pressure  of 
other  gases  in  other  liquids."  it  was  not 
the  apparatus  of  the  United  States  patent, 
though  having  some  features  the  same. 

But  it  is  contended  that  even  if  consid- 
ered as  a  "method"  patent,  "it  is  merely  for 
the  method  of  operating  the  [166]  appar- 
atus, constituting  the  function  of  the  ap- 
paratus, and,  therefore,  under  the  decision 
of  this  court,  is  for  the  same  invention." 
And  this  is  contended  to  be  established  by 
Mosler  Safe  &  Lock  Co.  v.  Hosier,  B.  k  Co. 
127  U.  S.  354,  3  L.  ed.  182,  8  Sup.  Ct.  Rep. 
1148,  and  by  a  ruling  of  the  Patent  Oflice 
upon  the  application  of  Claude  and  Hess  for 
an  "Improvement  in  a  Method  of  Storing 
Acetylene  Gas  for  Distribution,"  and  the 
acceptance  of  that  ruling  by  the  applicants. 

The  Mosler  Case,  it  was  said  in  Miller 
T.  Eagle  Mfg.  Co.  161  U.  S.  ISO,  197,  38  L. 
ed.  121,  127,  14  Sup.  Ct.  Rep.  310,  held 
"that  a  patent  having  issved  for  a  product, 
as  made  by  a  certain  process,  a  later  patent 
could  not  be  granted  for  the  process  which 
results  in  the  product."  The  process  was  a 
purely  mechanical  process,  and  the  ruling, 
it  would  seem,  must  be  confined  to  the  exact 
facts  of  the  case,  for  in  Miller  v.  Eagle 
Mfg.  Co.  it  was  said  that  "a  single  inven- 
tion may  include  both  the  machine  and  tha 
manufacture  it  creates,  and  in  such  cases, 
if  the  inventions  are  really  separable,  tha 
inventor  may  be  entitled  to  a  monopoly  of 
each."  And  Sewall  v.  Jones,  91  U.  S.  171, 
23  L.  ed.  275,  was  cited  for  the  purpose 
of  showing  that  there  might  be  a  patent  for 

889  V.  B. 


191A. 


KIRKBAJX  a.  T.  ft  I.  CO.  ▼.  COMMERCIAL  ACETYLENE  CO.      166-169 


tkc  proceaa  and  one  for  the  product.  Mer- 
rill y.  Yeomans,  94  U.  8.  568,  24  L.  ed. 
136,  was  alao  cited  as  holding  that  "where 
a  patent  described  an  apparatus,  a  prooess, 
tad  a  product,  and  the  claims  covered  only 
the  apparatus  and  the  process,  the  law  pro- 
Tided  a  remedy  by  a  surrender  of  the  pat- 
ent and  a  reinsue,  for  the  purpose  of  em- 
kracing  the  product." 

The  rulin;;  of  the  Comniissioner  of  Pat- 
ents referred  to  above  is  as  follows: 

"It  was  common  long  prior  to  the  app^l- 
huits'  invention  to  force  under  pressure  into 
a  liquid  solvent  thereof  in  a  closed  vessel 
sad  was  also  common  to  draw  off  gas  from 
a  holder  where  it  was  contained  under  pres- 
mre,  though  an  opening,  the  effective  sixe 
of  which  was  directly  controlled  by  and 
proportionate  to  the  pressure  of  the  gas 
[167]  within  the  holder;  or,  in  other  words, 
through  a  pressure  regulator.  The  appel- 
hints  were  then-fore  not  the  inventors  of 
the  step  of  storing  gas,  as  set  forth,  nor 
of  the  step  of  permitting  gas  to  escape  from 
a  place  of  storage  in  the  manner  set  forth. 
Kcither  of  these  steps  modifies  in  any  man- 
ner the  old  and  expected  effect  of  the  other ; 
and  the  final  result  of  the  alleged  process, 
namely,  distributing  gas  at  a  uniform  pres- 
iure,  is  the  same  as  that  produced  by  proc- 
esses old  in  the  art,  as  above  stated.  The 
appellants  have  tl^erefore  not  invented  a 
new  and  patentable  process,  although,  as 
held  in  a  companion  case,  they  have  devised 
in  apparatus  by  which  the  old  process  of 
itoring  gaa  can  be  made  practically  and 
eommercially  useful.  Claims  to  that  ap- 
paratus have  been  allowed,  and  it  is  be- 
lieved that  it  is  the  only  patentable  inven- 
tion disclosed  by  them. 

•  .  •  •  •  • 

"It  appears,  further,  that  they  do  not 
eover  proper  methods,  but  merely  the  func- 
tions of  mechanism,  and  that  they  are  not 
patentable  in  view  of  the  decisions  in  Coch- 
rane V.  Deener,  04  U.  S.  780,  24  L.  ed.  130, 
and  Boyden  Power  Brake  Co.  v.  Westing- 
house,  83  Off.  Gaz.  1067.  Claim  3  clearly 
covers  several  independent  disconnected 
lieps  which  do  not  go  to  make  up  a  pat- 
entable process." 

The  "companion  case"  referred  to  by  the 
Commissioner  is  the  patent  in  suit,  and  it 
will  be  observed  that  the  Commissioner  said 
it  was  for  an  apparatus  by  which  the  old 
process  of  storing  gas  could  be  made  prac- 
tically and  commercially  useful  and  that 
daims  to  it  had  been  allowed.  It  was, 
therefore,  distinctly  a  patent  for  an  appa- 
ratus, while,  on  the  contrary,  all  the  foreign 
patents  are  explicitly  for  methods.  The 
devices  described  in  them  were  not  a  result 
of  the  operation  of  the  methods.  Some  re- 
eeptade  or  apparatus  was  necessary  to  be 
•0  L.  ed. 


shown  to  produce  and  hold  the  solution  of 
the  gas  and  the  liquid  employed  as  a  sol- 
vent. Something  else  was  necessary  for 
[168]  the  uae  of  the  solutionis  and  the  de- 
rice  of  the  United  States  patent  Was  aimed 
to  secure  it.  It  is  distinct  from  the  method. 
Whether  it  has  patentable  novelty  is  an- 
other question.  And  a  serious  question  it 
is.  Tlie  solubility  of  acetylene  in  liquids, 
especially  in  acetone,  is  availed  of  in  all  of 
the  patents.  United  States  and  foreign.  This 
cannot  be  denied, — indeed,  is  admitted, — and, 
as  we  have  seen,  there  are  devices  described 
in  the  foreign  patents  for  storing  the  solu- 
tion and  devices  indicated  for  Its  use.  The 
similarities  and  differences  between  th<* 
patents  have^  given  rise  to  a  diversity  of 
opinion  and  decision. 

The  circuit  court  of  appeals  for  the  sixth 
circuit  discerned  a  difference  between  the 
British  patent  and  that  in  suit,  and  con- 
sidered that  the  former  was  for  a  process 
and  the  latter  for  an  instrument  to  perform 
the  process,  and  therefore  the  two  were  not 
for  the  same  invention,  and  that  neces- 
sarily the  United  States  patent  did  not  ex- 
pire with  the  British  patent  112  C.  C.  A. 
573,  192  Fed.  321. 

Ihe  circuit  court  of  appeals  for  the 
seventh  circuit  expressed  a  contrary  view 
and  decided  tliat  the  British  patent  and  the 
patent  in  suit  were  for  substantially  the 
same  invention,  and  the  British  patent  hav- 
ing expired,  the  patent  in  suit  expired  with 
it.  The  decisions  had,  respectively,  the  sup- 
port of  Judge  Denison  (18S  Fed,  89)  and 
Judge  Kohlsaat  (188  Fed.  85,  112  C.  C.  A. 
573,  192  Fed.  321). 

It  was  decided  in  the  circuit  court  for  the 
eastern  district  of  Wisconsin,  Judge  Quarles 
sitting,  that  the  device  of  the  patent  in 
suit  was  patentable  and  was  not  antici- 
pated by  anything  in  the  prior  art.  166 
Fed.  907 ;  see  also  181  Fed.  387. 

It  was  this  conflict  of  views  that  induced 
this  writ,  but  the  conflict  is  not  as  to  all 
questions  in  the  case.  If  the  decisions  of 
the  trial  courts  may  be  in  opposition  on  in- 
vention and  infringement  as  well  as  on  the 
effect  of  the  [160]  foreign  patents,  such 
conflict  cannot  be  asserted  of  the  opinions  of 
the  circuit  courts  of  appeal.  That  of  the 
eighth  circuit — and  to  which  this  writ  is 
directed — refrained  from  a  decision  on  the 
merits,  and  considered  only  the  propriety  of 
the  discretion  exercised  by  the  trial  court  in 
granting  a  preliminary  injunction;  and,  re- 
viewing the  expression  of  judicial  opinion, 
decided  that  the  court  waa  justified  in 
making  the  order.  The  court  of  appeals 
went  no  farther,  as  we  have  seen,  and  we 
are  disposed  to  a  like  limitation.  The  ques- 
tions are  seriously  disputsble,  as  the  differ- 
ence in   decision   indicates,  and  wa  think 

tot 


169-171 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tkuff, 


we  should  follow  the  circuit  court  of  ap- 
peaU  and  imitate  the  example  of  Leeds  & 
C.  Co.  V.  Victor  Talking  Mach.  Co.  213  U. 
S.  301,  311,  312,  53  L.  ed.  805,  809,  810, 
20  Sup.  Ct.  Rep.  495.  We  have  not  the 
aid — and  its  value  in  inestimable — of  the 
judgment  of  the  trial  court  or  of  the  cir- 
cuit court  of  appeals,  but  must  consider 
the  question  upon  conflicting  allegations 
and  afYidavits.  The  better  course,  therefore, 
is  to  reserve  all  questions  except  that  of 
the  identity  of  the  patent  in  suit  with  the 
foreign  patents,  and  its  termination  by  their 
expiration,  and,  with  that  reservation,  we 
decide  only  that  there  was  no  abuse  of  dis- 
cretion in  granting  and  sustaining  the 
order  of  injunction. 
Aflirmed. 


[170]  NELLIE  PORTER,  Plff.  in  Err., 

v. 

OLLIE  A.   WILSON,  Charles  W.   Wilson, 

Omer  A.  Garner,  and  W.  M.  Jackson. 

(See  S.  C.  Reporter's  cd.  1?0-175.) 

Constitutional  law  —  privileges  «nd  Im- 
munities —  due  process  of  law  —  sus- 
taining demurrer  to  evidence. 

1.  The  sustaining  of  a  demurrer  to  the 
evidence  and  the  entry  of  a  decree  fop  de- 
fendant in  a  suit  tried  witliout  a  jury  can- 
not be  said  to  abridge  the  plaintiff's  privi- 
leges and  immunities,  nor  to  take  her  prop- 
erty without  due  process  of  law,  contrary 
to  (J.  S.  Const.,  14th  Amend.,  because  of 
the  declaration  in  Okla.  Rev.  Laws,  §  6030, 
that  ''the  provisions  of  this  article  respect- 
ing trials  by  jury  apply  so  far  as  they  are 
in  their  nature  applicable  to  trials  by  the 
court,"  where  the  Oklahoma  supreme  court, 
in  afHrniing  such  decree,  decided  that  the 
trial  court  "did  not  render  its  judgment 
alone  upon  tlie  demurrer  to  the  evidence, 
but,  after  a  consideration  of  the  proof  sub- 
mitted by  plaintiflf,  made  its  findings  of 
fact,  thereby  necessarily  weighing  the  plain- 
tiff's testimony,"  and  pointed  out  that  ^'even 
though  it  were  conceded  that  technical  er- 
ror was  committed,  the  substantial  rights 
of  the  plaintiff  were  not  affected,"  adding 
that  it  was  required  by  statutes  and  its 
own   decisions  to  disregard  errors  or   de- 

NoTE. — ^As  to  what  constitutes  due  process 
of  law,  generally — see  notes  to  People  v. 
O'Brien,  2  L.R.A.  255 ;  Kuntz  v.  Sumption, 
2  L.R.A.  655;  Re  Gannon,  5  L.R.A.  350; 
Ulman  v.  Baltimore,  11  L.R.A.  224;  Oilman 
V.  Tucker,  13  L.R.A.  304;  Pearson  v.  Yew- 
dall,  24  L.  ed.  U.  S.  436;  and  Wilson  ▼. 
North  Carolina,  42  L.  ed.  U.  S.  865. 

As  to  constitutional  equality  of  privileges, 
immunities,  and   protection,  generally — see 
note  to  Louisville  Safety  Vault  &  T.  Co. 
V.  Louisville  k  N.  R.  Co.  14  L.R.A.  570. 
204 


fects  which  did  not  affect  the  substantia 
rights  of  the  parties. 

[For  other  cases,  see  Const! totlontl  Law.  lY. 
a.  7;  IV.  b,  8.  in  Digest  Sup.  Ct.  190S.] 

Indian  allotments  —  descent  —  legiti- 
macy. 

2.  Rights  of  inheritance  as  to  Creek 
lands  in  the  Indian  Territory  were  not  af- 
fected by  the  enactment  of  the  act  of  Feb- 
ruary 28,  1891  (26  SUt.  at  L.  794,  chap. 
383,  Cbmp.  SUt.  1913,  §  4222),  §  5,  which 
amended  the  general  allotment  act  of  Feb- 
ruary 8,  1887  (24  SUt.  at  L.  388,  chap. 
119,  Comp.  Stat.  1913,  §  4206),  by  provid- 
ing that  ''for  the  purpose  of  determining 
the  descent  of  land  to  the  heirs  of  any.  de- 
ceased Indian"  under  the  provisions  of  §  5 
of  said  act  of  February  8,  1887,  the  issue 
of  iDdiana  cohabfting  as  husband  and  wife 
"according  to  the  custom  and  manner  of 
Indian  life"  shall  be  *'Uken  and  deemed  to 
be  legitimate  issue  of  the  Indians  so  living 
together,  and  every  Indian  child,  otherwise 
illegitimate,  shall,  for  such  purposes,  be 
Uken  and  deemed  to  be  the  legitimate  is- 
sue of  the  father  of  such  child,"  since  by 
§  8  of  the  earlier  act  the  territory  occupied 
by  the  Creeks  in  the  Indian  Territory  was 
expressly  excepted  from  the  provisions  of 
that  act. 

[For  other  cases,  see  Indisns,  VIII.,  in  Dicest 
Sup.   Ct    1908.] 

[No.  58.] 

Submitted  November  5,  1915.    Decided  No- 
vember 29,  1915. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Oklahonui  to  review  a  decree 
which  affirmed  a  decree  of  the  District  Court 
of  Hughes  County,  in  that  sUtc,  in  favor 
of  defendanU  in  a  suit  to  quiet  title.  Af- 
firmed. 

See  same  case  below,  39  Okla.  500,  135 
Pac.  732. 
The  facU  are  sUted  in  the  opinion. 

Messrs.  Ijewls  C.  liawson  and  Frank  L. 
Montgomery  submitted  the  cause  for  plain- 
tiff in  error. 

No  brief  was  filed  for  defendants  in  error. 


Mr.  Justice  McKenna  delivered  the  opin- 
ion of  the  court: 

Suit  to  quiet  title,  brought  in  the  district 
court  of  Hughes  county,  sUU  of  Oklahoma, 
and  in  which  plaintiff  [171]  in  error  waa 
plaintiff  a^d  defendants  in  error  defendants^ 
and  we  shall  so  designate  them. 

The  case  concerns  the  inheritance  of  an 
allotment  to  one  Ben  PorUr,  a  Creek  citi- 
zen and  member  of  the  tribe  of  the  Creek 
Nation.    Plaintiff  contends  that  she  is  the 
daughter  and  only  child  of  Porter  and  Jen- 
I  nie  McGilbra,  whom  he  married,  it  is  as- 
.  serted,  in  1893,  and  with  whom  he  after- 
I  wards  resided  for  one  and  one-half  years  as 
husband  in  accordance  with  the  usages  and 

S89  V.  S. 


1916. 


PORTER  ▼.  WILSON. 


171-173 


eustoiDB  of  the  Creek  Nation.  He  subee- 
quently  separated  from  her,  it  it  alleged, 
but  never  got  a  divorce  from  her,  and  that 
therefore  they  remained  husband  and  wife 
until  the  time  of  his  death,  which  occurred 
about  NoTonber  23,  1006;  he  dying  intes- 
tate, and  being  seised  of  the  lands  in  ton- 
troversj  at  tliat  time,  plaintiff,  Nellie  Por- 
ter, liecame  entitled  in  fee  simple  to  all  of 
them. 

It  is  averred  that  after  Porter's  separa- 
tion from  his  wife  he  ''took  up"  with  an- 
other woman  bj  the  name  of  Lena  Canard, 
who,  after  the  death  of  Porter,  married 
one  William  Freeman;  that  Porter  left 
surviving  him  one  Sam  Porter,  a  half 
brother,  a  Seminole  Indian  and  so  enrolled, 
and  one  Nannie  Broadnax,  a  half  sister. 
From  this  brother  and  sister  and  Mrs.  Free- 
man the  defendants  in  error  derive  their 
title. 

Defendants  denj  the  marriage  of  Porter 
and  Jennie  McGilbra,  or  that  plaintiff  was 
his  child  or  in  any  way  related  to  him, 
and  aver  that  tbeir  grantors  "were  the  sole 
and  exclusive  heirs  of  Porter,  and  as  such 
inherited  the  lands  from  him." 

llie  judgment  recites  that  the  cause  eom- 
ing  on,  upon  hearing  upon  the  pleadings 
and  upon  evidence  offered  on  the  part  of  the 
plaintiff,  and  upon  the  plaintiff  resting  her 
eause  with  the  court  upon  the  evidence 
offered,  the  defendants  demurred  to  the  evi- 
dence and  the  court  sustained  the  demurrer, 
and  found  '*that  the  alleged  marital  rela- 
tion between  Ben  Porter  and  Jennie  Mc- 
Gilbra  was  [172]  not  esUblished  by  the 
proof  and  did  not  exist,  either  by  reason  of 
customs  or  the  laws  of  the  Creek  Nation; 
that  the  relation  was  illicit;  that  the  plain- 
tiff, Nellie  Porter,  was  the  illegitimate  child 
of  this  illicit  relation."  Ulie  court  entered 
a  decree  dismissing  plaintiff's  bill  and  for- 
ever quieting  the  title  of  defendants  against 
plaintiff.  The  decree  was  affirmed  by  the 
supreme  court. 

Tiie  supreme  court  sustained  the  action 
of  the  trial  court  in  rendering  judgment 
upon  the  evidence,  saying:  '*lt  is  obvious 
from  the  record  that  the  court  passed  upon 
the  entire  case,"  and  that  "it  would  be  too 
subtle  a  refinement  to  say  that  the  court 
should  have  overruled  the  demurrer  and 
thereupon,  on  the  same  evidence,  have  found 
for  the  defendant ;  otherwise  a  reversal  must 
follow."  And  further:  "Ultimately  plain- 
tiff's right  to  recover  involved  a  question 
of  fact  for  the  court's  determination.  That 
the  court  did  consider  the  testimony  and  de- 
termine the  insufficiency  is  clearly  estab- 
lished from  the  language  of  the  journal 
entry.  The  burden  of  proof  rested  upon  the 
plaintiff  to  prove,  not  only  the  Indian  cus- 
toms of  the  Creek  Nation  pertaining  to  mar- 
•0  L.  ed. 


riage,  but  to  establish  her  rights  there- 
under. There  was  more  or  less  conflict  in 
the  testimony  of  plaintiff's  witnesses,  from 
which  different  conclusions  might  be  drawn, 
and  there  being  testimony  reasonably  tend- 
ing to  support  the  judgment  of  the  court, 
the  same  will  not  be  weighed  by  this  court 
to  ascertain  whether  the  court's  decision  is 
against  the  preponderance  of  the  testi- 
mony." [39  Okla.  607,  136  Pac.  732.]  For 
which  conclusion  the  court  cited  a  number 
of  Oklahoma  cases. 

Against  the  action  of  the  trial  court  and 
its  affirmance  by  the  supreme  court  it  is 
contended  that  the  Constitution  of  the  state 
and  the  14th  Amendment  have  been  violated 
in  that  the  plaintiff's  privileges  and  Im- 
munities have  been  abridged  and  her  prop- 
erty taken  without  due  process  of  law.  The 
foundation  of  the  contention  is  §  6039  of 
the  Revised  Laws  of  Oklahoma.  It  provides 
[173]  that  "the  provisions  of  this  article 
respecting  trials  by  jury  apply,  so  far  as 
they  are  in  their  nature  applicable,  to  trials 
by  the  court."  The  argument  is  that  under 
that  section  "a  citizen  of  the  said  state  and 
of  the  United  States  is  entitled  to  the  same 
protection  and  enforcement  of  the  law.  on  a 
demurrer  to  the  evidence  where  their  causiis 
of  action  are  tried  by  the  court,  as  when 
tried  to  a  jury."  And,  it  is  further  argued, 
if  there  be  any  evidence,  "conflicting  evi- 
dence cannot  be  weighed  or  considered  by 
the  court,"  and  the  demurrer  should  have 
been  overruled,  lliese  contentions  are  at- 
tempted to  be  supported  by  citation  of  many 
cases  and  elaborate  comment  n&ade  upon 
them  to  sustain  the  assertion  "that  a  de- 
murrer to  the  evidence  presents  a  proposi- 
tion of  law,  and  not  of  fact;  and  that  con- 
flicting evidence  in  the  case  is  not  to  be 
considered,  if  there  be  evidence  even  tend- 
ing to  support  the  claims  of  the  demurree." 

The  contention  is  difficult  to  handle.  It 
seems  to  confound  so  completely  the  pur- 
pose and  various  qualities  of  evidence  and 
the  functions  of  a  court. 

Whether,  however,  there  be  a  technical 
difference  between  tiie  final  submission  of 
a  case  to  the  court  and  its  submission  upon 
a  demurrer  to  the  evidence  we  need  not 
dwell  upon.  The  difference  has  been  made 
unimportant,  indeed,  removed  from  the 
present  case,  by  the  decision  of  the  supreme 
court.  The  court  decided,  as  we  have  seen, 
that  the  trial  court  "did  not  render  its 
judgment  alone  upon  the  demurrer  to  the 
evidence,  but,  after  a  consideration  of  the 
proof  submitted  by  plaintiff,  made  its  find- 
ings of  fact,  thereby  necessarily  weighing 
the  plaintiff's  testimony  for  the  purpose  of 
determining  the  rights  of  the  respective 
parties  to  a  recovery."  And  the  court 
pointed    out   that   "even    though    it    were 

20ft 


173-176 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Teem, 


conceded  that  technical  error  was  com- 
mitted, the  substantial  rights  of  the  plain- 
tiff were  not  affected,  as  she  had  introduced 
her  evidence  and  rested  her  case.  She  was 
not  caused  to  change  [174)  her  position, 
nor  did  she  suffer  any  disadvantage  in  the 
procedxire  adopted."  The  court  added  that 
it  was  required  by  the  statutes  of  the  state 
and  its  decisions  to  disregard  errors  or  de- 
fects in  the  pleadings  or  proceedings  which 
did  not  affect  the  substantial  rights  of  the 
parties. 

It  is  manifest,  therefore,  that  the  action 
of  the  trial  court  was  in  full  exercise  of  the 
power  intrusted  to  it  under  the  laws  of 
the  state,  and  the  contention  of  plaintiff 
that  the  Constitution  of  the  United  'States 
is  violated  is  untenable.  We,  of  course, 
accept  the  the  decision  of  the  supreme  court 
of  the  state  that  the  state  Constitution  is 
not  violated. 

The  next  contention  of  plaintiff  is  that 
she  inherited  the  lands  by  virtue  of  §  5 
of  the  act  of  Congress  of  February  28, 
1891  (26  Stat,  at  L.  794,  chap.  383,  Comp. 
Stat  1913,  §  4222),  which  amended  the 
general  allotment  act  of  February  8,  1887 
(24  Stat,  at  L.  388,  chap.  119,  Comp.  Stat. 
1913,  §  4206).  By  this  section  it  is  pro- 
vided *'that  for  the  purpose  of  determining 
the  descent  of  land  to  the  heirs  of  any  de- 
ceased Indian  under  the  provisions  of  the 
fifth  section  of  said  act"  of  February  8, 
1887,  the  issue  of  Indians  cohabiting  as  hus- 
band and  wife  "according  to  the  custom 
and  manner  of  Indian  life"  shall  be  "taken 
and  deemed  to  be  the  legitimate  issue  of 
the  Indians  so  living  together,  and  every 
Indian  child,  otherwise  illegitimate,  shall, 
for  such  purpose,  be  taken  and  deemed  to 
be  the  legitimate  issue  of  the  father  of  such 
child." 

But  by  §  8  of  the  act  of  February  8, 
1887,  "the  territory  occupied  by  the  .  .  . 
Creeks  ...  in  the  Indian  Territory" 
was  expressly  excepted  from  the  provisions 
of  that  act.  It  was  hence  concluded  by  the 
supreme  court  of  the  state  that  §  6  of  the 
act  of  1891,  supra,  "was  without  effect  upon 
the  riglit  of  inheritance,  as  to  the  Creek 
Indians  in  the  Indian  Territory." 

Plaintiff  attacks  this  conclusion  by  cit- 
ing §  38  of  the  act  of  May  2,  1890  (26  Stat, 
at  L.  81,  98,  chap.  182),  which  organized 
the  territory  of  Oklahoma.  It  provides 
"that  all  marriages  [176]  heretofore  con- 
tracted under  the  laws  or  tribal  customs  of 
any  Indian  Nation  now  located  In  the  In- 
dian Territory,  are  hereby  declared  valid 
and  the  issue  of  such  marriages  shall  be 
deemed  legitimate  and  entitled  to  all  in- 
heritances of  property  or  other  rights,  the 

8oe 


same  as  in  the  caae  of  the  issue  of  other 
forms  of  lawful  marriage.    .    .    ." 

It  will  be  observed  that  the  asserted  mar- 
riage between  Porter  and  the  mother  of 
plaintiff  took  place  in  1893;  that  is,  sub- 
sequent to  the  act  of  1890,  organising  the 
territory  of  Oklahoma,  and  therefore  waa 
not  a  marriage  within  the  meaning  of  §  38, 
theretofore  contracted,  and  therefore  plain- 
tiff's reliance  must  be  upon  the  provision, 
before  stated,  in  §  6  of  the  act  of  1891. 
As  that  section  was  expressly  festricted  to 
lands  allotted  under  §  6  of  the  act  of  1887, 
and  as  the  lands  occupied  by  the  Creeks 
in  the  Indian  Territory  could  not  be  and 
were  not  allotted  under  the  latter  section, 
it  follows  that  the  provision  relied  upon 
had  no  application  to  the  lands  here  in 
question,  they  being  part  of  the  territory 
so  occupied  by  the  Creelcs. 

Judgment  affirmed. 


WILLIAM  E.  HETM,  Cranford  Company, 
and  Flinn-O'Rourke  Company,  Inc.,  Plffs. 
in  Err., 

V. 

EDWARD  E.  McCALL,  Milo  R.  Maltbie,  J. 
ISargeant  Cram,  George  V.  S.  Williams, 
and  Robert  C.  Wood,  as  Members  of  and 
Constituting  the  Public  Service  Commis- 
sion for  the  First  District  of  the  State  of 
New  York. 

(See  S.  C.  Reporter's  ed.  175-194.) 

Error  to  state  court  —  Federal  ques- 
^  tion  —  local  law. 

1.  The  application  of  the  provisions  of 
N.  Y.  Consol.  Laws,  chap.  31,  §  14,  against 
the  employment  of  aliens  on  public  works 
to  contracts  for  the  construction  of  sub- 
ways in  New  York  city,  and  the  extent  to 
which  they  affect  the  corporate  rights  of 
the  city  or  of  the  subway  contractors,  are 
local  questions  not  open  for  review  in  the 
Federal  Supreme  Court  on  writ  of  error  to 
a  state  court. 

[For  other  cases,  see  Appeal  and  Error.  2124- 
2151,  m  Digest  Sup.  Ct.  1908.] 

Municipal     corpomtions  —   legislative 

control  *—  labor  on  public  works. 

2.  The  general  power  of  a  state  over  its 
municipalities  extends  to  the  regulation  of 
the  kind  of  laborers  which  may  be  em- 
ployed in  the  construction  of  public  works 
by  or  for  such  municipalities. 

[&or  other  cases,  see  Munlcipnl  Corporations, 

7-12,  in  Digest  Snp.  Ct.  1908.] 
1 

Note. — On  the  general  subject  of  writs 
of  error  from  the  United  States  Supreme 
Court  to  state  courts — see  notes  to  Martin 
V.  Hunter,  4  L.  ed.  U.  S.  97;  Bamblin  v. 
Western  Land  Co.  37  L.  ed.  U.  S.  267;  Re 
Buchanan,  39  L.  ed.  U.  S.  884;  and  Kipley 
V.  Illinois,  42  L.  ed.  U.  S.  998. 

On  what  questions  the  Federal  Supreme 

S89  V.  8. 


1915. 


HEIM  V.  McCALL. 


170 


Constltationnl  law  —  privileges  and  Im- 
man  i  ties  —  employment  on  public 
works. 

3.  Privileges  and  immunities  of  the 
citizens  of  the  several  states  are  not 
tbridged,  contrary  to  U.  S.  Const,  art.  4, 
1 2,  by  the  provisions  of  N.  Y.  Consol.  Laws, 
chap.  31,  §  14,  that  only  citizens  of  tlit 
United  States  may  be  employed  in  the  con- 
itruction  of  public  works  by  or  for  the 
lUte  or  a  municipality,  and  that  in  such 
employment  citizens  of  New  York  stats  must 
be  given  prefererco. 

[For  other  esites.  see  Constltotional  Law,  218- 
2S8,  in  Dii;e8t  Sup.  Ct.  1808.] 

Oonstltntlonal  lavr  —  freedom  to  eon- 
tract  —  employment  on  public  works. 

4.  The  freedom  to  contract  secured  by 
U.  S.  Const,  14th  Amend.,  is  not  infringed 
by  the  provisions  of  N.  Y.  Consol.  Laws, 
ehap.  31,  f  14>  that  only  citizens  of  the 
United  States  may  be  employed  in  the  con- 
struction of  public  works  by  or  for  the 
•tate  or  a  municipality,  and  that  in  such 
employment  citizens  of  Ivew  York  state 
must  he  given  preference. 

(For  other  cases,  see  Constltotional  Law,  001- 
607,  in  Digest  Sop.  Ct.  1908.] 

Constitutional  law  —  due  process  of  law 
— eqnal  protection  of  the  laws  —  em- 
ployment on  public  works. 

5.  Property  is  not  taken  without  due 

process  of  law,  nor  is  the  equal  protection 

of  tlie  laws  denied,  contrary  to  U.  S.  Const., 

Uth  Amend.,  by  the  provisions  of  N.   Y. 

Consol.  Laws,  chap.  31,  §  14,  that  only  citi- 

lens  of  the  United  States  may  be  employed 

in  the  construction  of  public  works  by  or 

for  the  state  or  a  municipality,  and  that  In 

luch   employment    citizens    of    New    York 

lUte  must  be  given  preference. 

[For  other  cases,  see  Constltotional  Lsw,  2ia- 
2;;8,  441^98.  891-894,  In  Digest  Sup.  Ct. 
IvUo.  J 

Aliens  —  treaty  rights  —  state  regula- 
tion —  employment  on  public  works. 

6.  The  equality  of  rights  and  privileges 
with  citizens  of  the  United  States  with  re- 
spect to  security  for  persons  and  property 
wliich  citizens  of  Italy  are  assured  by  the 
Italian  treatv  of  Feuruary  26,  1871  (17 
Stat,  at  L.  845),  is  not  infringed  by  the 
provisions  of  N.  Y.  Consol.  Laws,  chap.  31, 
i  14,  that  only  citizens  of  the  United  States 


may  be  employed  in  the  construction  of 
public  works  by  or  for  the' state  or  a  mu- 
nicipality, and  that  in  such  employment 
citizens  of  New  York  state  must  be  given 
preference. 

[For  other  esses,  see  Treaties,   I.  in  Digest 
Sup.  Ct.  1908.] 

[No.  386.] 

Argued  October  12,  1916.    Decided  Novem- 
ber 29,  1915. 

IN  ERROR  to  the  Court  of  Appeals  of 
the  State  of  New  York  to  review  a  decree 
which  reversed  a  decree  of  the  Appellate  Di- 
vision of  the  Supreme  Court,  First  Depart- 
ment, reversing  a  decree  of  the  Supreme 
Court  hi  snd  for  New  York  County,  in  that 
state,  which  had  sustained  a  demurrer  to  the 
bill  in  a  suit  to  restrain  the  Public  Service 
Commission  from  declaring  certain  subway 
contracts  forfeited  for  violation  of  the  anti- 
alien  labor  laws.    Affirmed. 

See  same  case  below,  in  Appellate  Divi- 
sion, 165  App.  Div.  449,  150  N.  Y.  Supp. 
933;  in  Court  of  Appeals,  214  N.  Y.  629, 
108  N.  E.  1095. 

Statement  by  Mr.  Justice  McKenna: 
Bill  in  equity  to  restrain  the  Public  Serv- 
ice Conmiission  for  the  First  District  of  the 
State  of  New  York  from  declaring  certain 
contracts  for  the  construction  of  portions 
of  the  rapid  subway  system  of  the  city  of 
New  York  void  and  forfeited  for  violation 
of  certain  provisions  inserted  in  the  con- 
tracts in  pursuance  of  §  14  of  the  labor  law 
(so-called)  of  the  state.  Laws  1909,  chap. 
36,  Consol.  Laws,  chap.  31.  It  reads  as 
follows : 

"Section  14.  Preference  in  employment  of 
persons  upon  public  works. — In  the  construc- 
tion of  public  works  by  the  state  or  a  mu- 
nicipality, or  by  persons  contracting  with 
tlie  state  or  such  municipality,  only  citizens 
of  the  United  States  shall  be  employed ;  and 
in  all  cases  where  laborers  are  employed 
on     any«    such     public    works,     preference 


Court  will  consider  In  reviewing  the  judg- 
ments of  state  courts — see  note  to  Missouri 
«  rel.  Hill  v.  Dockery,  63  L.R.A.  571. 

As  to  what  constitutes  due  process  of 
Itw,  generally — see  notes  to  People  v. 
03rien,  2  L.R.A.  255;  Kuntz  v.  Sumption, 
2  L.R.A.  655;  Re  Qannon,  5  L.R.A.  359  w 
Uhnan  v.  Baltimore,  11  L.R.A.  224;  Oilman 
».  Tucker,  13  L.R.A.  304 ;  Pearson  v.  Ycw- 
dtll,  24  Ia  ed.  U.  S.  436;  and  Wilson  v. 
Horth  Carolina,  42  L.  ed.  U.  S.  865. 

As  to  the  validity  of  class  legislation, 
(vierally — see  notes  to  State  ▼.  Qoodwill, 
S  L.R.A.  621;  and  State  v.  Loomis,  21 
l:SUL  789. 

As  to  constitutional  equality  of  privileges, 
bimunitics,  •  and  protection,  generally — 
•0  L.  ed. 


note  to  Louisville  Safety  Vault  ft  T.  Co. 
V.  Louisville  &  N.  R.  Co.  14  L.R.A.  579. 

Generally,  as  to  statutory  restrictions  on 
contracts  between  master  and  servant — see 
notes  to  Com.  ▼.  Perry,  14  L.RJI.  325; 
Ramsey  v.  People,  17  L.RJ^.  853;  State  ▼. 
Loomis,  21  L.R.A.  789 ;  and  Ritchie  ▼.  Peo- 
ple, 29  L.R.A.  79. 

On  treaty  guaranties  to  aliens — see  note 
to  Gandolfo  v.  Hartman,  16  L.R.A.  277. 

On  power  of  state,  under  14th  Amendment 
to  the  United  States  Constitution,  to  deny 
to  aliens  the  right  to  engage  in  a  lawful 
occupation — see  notes  to  Com.  v.  Hana,  11 
L.RJl.(N.S.)  799;  People  v.  Crane,  L.RJk.. 
1916D,  569. 

%^1 


177-179 


SUPREME  COURT  OF  THE  UNITED  STATES. 


OOT.  IkBlC, 


[177]  shall  be  given  citizens  of  the  state 
of  New  York.  In  each  contract  for  the  con- 
struction of  public  works  a  proTision  shall 
be  inserted,  to  the  effect  that,  if  the  pro- 
visions of  this  section  ^are  not  complied 
with,  the  contract  shall  be  void    .    .    ."l 

It  is  provided  that  a  list  of  contracts 
theretofore  made,  with  the  names  and  ad- 
dresses of  the  contractors,  shall  be  filed  in 
the  office  of  the  commissioner  of  labor;  and 
when  new  contracts  are  allowed  the  names 
and  addresses  of  such  new  contractors  shall 
likewise  be  filed,  and,  upon  demand,  each 
contractor  shall  furnish  a  list  of  subcontract- 
ors in  his  employ.  Each  contractor  is  re- 
quired to  keep  a  list  of  his  employees  which 
shall  set  forth  whether  they  are  naturalized 
or  native-bom  citizens  of  the  United  States. 
A  violation  of  the  section  is  made  a  mis- 
demeanor. 

The  case  went  off  on  demurrer,  and  it  is 
therefore  necessary  to  give  a  summary  of 
the  bill,  which  we  do  in  narrative  form,  as 
follows: 

Heim  is  a  property  owner  and  taxpayer 
of  the  state  of  New  York.  The  defendants 
are  the  acting  Public  Service  Commissioners 
for  the  First  District  of  the  State  of  New 
York  and  have  been  constituted  and  are  the 
Public  Service  Commisaion  of  that  district. 

The  board  of  Rapid  Transit  Railroad  Com- 
missioners for  the  City  of  New  York,  under 
the  laws  of  the  state  (referred  to  as  the 
rapid  transit  act),  in  1806  laid  out  and  es- 
tablished a  route  for  said  railroad  in  the 
city,  and  which  was  subsequently  construct- 
ed, equipped,  and  operated.  [178]  After- 
wards other  routes  were  established,  con- 
structed, equipped,  and  operated. 

1  hese  routes  were  located  in  the  boroughs 
of  Manhattan  and  the  Bronx  and  Brooklyn, 
and  since  1912  and  prior  thereto  have  been 
leased  and  operated  by  the  Interborough 
Rapid  Transit  Company,  referred  to  as  the 
Interborough  Company.  There  has  been  a 
like  lease  of  roads  in  Brooklyn  by  the  Con- 
solidated Railroad  Company,  called  the 
Brooklyn  Company. 

The  Board  of  Rapid  Transit  Commission- 
ers, acting  under  the  laws  of  the  state,  de- 
cided that  other  rapid  transit  railroads  were 
necessary,  and  determined  and  established 
routes  and  the  general  plans  for  the  con- 
struction thereof. 

1  Section  14  of  the  labor  law  was  amended 
by  act  of  March  11,  1916,  chap.  61,  Laws  of 
New  York,  1915,  as  follows: 

'^Section  14.  Preference  in  employment 
of  persons  upon  public  works. — In  the  con* 
struction  of  public  works  by  the  state  or  a 
municipality,  or  by  persons  contracting  with 
the  state  or  such  municipality,  preference 
shall  be  given  to  citizens  over  aliens.  Aliens 
may  be  employed  when  citizens  are  not  avail- 
able. .  .  ." 
208 


The  lines  are  described  and  respectively 
called  Interborough  lines  and  Brooklyn  lines. 

The  Board  and  the  Public  Service  Com- 
mission contemplated  that  such  extension 
and  additions  would  form,  with  the  existing 
Interborough  and  Brooklyn  lines,  a  complete 
and  comprehensive  rapid  transit  system  for 
the  accommodation  of  the  entire  city.  And 
the  construction  of  such  roads  was  deemed 
and  was  and  has  been  an  imperative  neces- 
sity for  the  comfort  and  convenience  of  the 
residents  and  taxpayers  of  the  city. 

The  cost  of  construction  of  such  new  roads 
vas  upwards  of  $235,000,000  and  their  equip- 
ment $44,000,000.  The  city  had  no  avail- 
able money  and  could  not  borrow  the  neces- 
sary moneys  for  a  large  part  of  such 
construction  or  equipment  without  exceeding 
its  legal  and  constitutional  debt  limit  by 
many  million  dollars. 

To  utilize  the  old  with  the  new  systems 
upon  a  5-cent  fare  basis,  and  to  overcome  the 
difficulties  and  delays  for  lack  of  funds,  and 
accomplish  the  early  construction  and  opera- 
tion of  the  system  on  the  best  possible  terms 
for  the  city,  negotiations  were  entered  into 
between  the  Public  Service  Commission  and 
the  city  authorities  on  the  one  [179]  part 
and  the  Interborough  Company  and  the 
Brooklyn  Company  on  the  other  part,  with 
a  view  of  formulating  and  entering  into 
contracts  with  the  companies  for  the  pro- 
vision of  funds  for  the  construction  and 
operation  of  roads. 

A  form  of  contract  was  finally  agreed  up- 
on and  a  contract  was  duly  signed,  executed, 
and  delivered  by  the  Interborough  Company 
on  the  one  part  and  the  Public  Service  Com- 
mission in  behalf  of  the  city  on  the  other 
part,  on  or  about  March  19,  1913. 

As  a  result  of  the  negotiations  another 
contract  was  entered  into  with  the  New 
York  Municipal  Railway  Company,  which 
had  been  formed  in  the  interest  of  the 
Brooklyn  Company,  whereby  the  latter  com- 
pany agreed  to  contribute  toward  the  cost 
of  construction  and  equipment  and  to  lease 
and  operate  a  portion  of  the  roads  in  con- 
junction with  the  then-existing  system. 
There  is  an  enumeration  of  the  provisions 
of  the  contracts  and  the  amounts  to  be  con- 
tributed by  the  companies  and  for  the  lease 
of  the  routes. 

The  contracts  were  made  a  part  of  the 
public  records  and  approved  by  the  Board  of 
Estimates  and  Apportionment  and  other 
proper  authorities  before  execution. 

The  Public  Service  Commission  has  let  and 
awarded  each  of  the  contracts  for  construc- 
tion of  the  new  routes,  and  the  Interborough 
Company  became  a  party  to  many  of  them 
for  the  purpose  stated  in  the  contracts;  that 
is,  "solely  for  the  purpose  of  paying  out  a 
part  of  its  contribution  towards  the  cost  of 
construction  of  the  said  respective  routes." 

8S9  V.  a. 


1915. 


HEIM  ▼.  MoCALL. 


170-182 


large  extent.     In  no  instance  are  any  of 
the  contractors  in  default. 

In  the  course  of  construction  each  of  the 
contractors  has  constantly  employed  and 
now  employs  a  large  number  of  laborers 
and  mechanics  who  are  residents  of  the  city 
of  New  York,  but  who  were  born  in  Italy 
and  are  subjects  of  its  King,  and  also  em- 
ployed laborers  who,  though  citizens  of  the 
United  States,  were  not  citizens  of  New 
York,  and  did  not  give  preference  to  citi- 
zens of  the  state  of  New  York  over  such 
laborers  so  employed  who  were  not  citizens 
of  the  state,  but  citizens  of  the  United 
States. 

At  the  time  of  the  proposals  it  was  known 
to  be  and  is  necessary  to  employ  a  large 
number  of  such  subjects  of  the  King  of  Italy 
and  citizens  of  other  states  and  of  other 
countries  to  perform  said  contracts  within 
the  time  and  at  the  prices  stated  in  order 
to  keep  the  construction  and  equipment  of 
the  Dual  System  within  the  total  amount 
provided  and  specified  in  the  contracts  and 
plans. 

The  treaty  between  the  United  States  and 
lUly  of  1871  [17  SUt.  at  L.  845]  provides 
that  the  subjects  of  the  King  of  Italy  resid- 
ing in  the  United  States  shall  have  and 
enjoy  the  same  rights  and  privileges  with  re- 
spect to  persons  and  property  as  are  se- 
cured to  the  citizens  of  the  United  States 
residing  in  the  United  States. 

At  no  time  since  the  letting  of  such  con- 
tracts has  there  been  available  a  sufficient 
force  or  number  of  laborers  citizens  of  the 
United  States  or  of  the  state  of  New  York  to 
perform  the  work  in  accordance  with  such 
contracts;  and  no  question  was  raised  until 
a  few  days  since  of  the  right  of  the  con- 
tractors to  employ  alien  laborers,  which 
[182]  the  contractors  believed  that  they 
had  a  right  to  do,  and  they  regarded  the 
provision  of  the  law  and  of  the  contract 
prohibiting  the  same  as  in  effect  null  and 
void. 

Within  the  past  ten  days  complaint  has 
been  made  to  the  Public  Service  Commis- 
sion of  the  violation  of  the  law  and  the  alien 
labor  provision  in  the  contracts,  and  the 
Commission  has  threatened  to  refuse  to  ap- 
prove further  monthly  estimates  of  amounts 
payable  to  contractors,  thus  depriving  them 
of  the  means  of  prosecuting  the  work  and 
the  right  to  perform  the  same;  indeed,  have 
refused  to  approve  certain  monthly  esti- 
mates, and,  unless  enjoined,  will  declare 
such  contracts  void  and  terminate  the  same. 

The  termination  of  the  contracts  will  re- 
sult in  irreparable  loss  and  damage  and 
waste  of  money  to  the  city,  the  work  will  be 
delayed  or  not  done,  or  the  cost  will  be  enor- 
mously increased  because  the  supply  of  la- 
of  75  per  cent,  and  all  performed  to  a  very  *  bor  will  be  diminished^  resulting  necessarily 
to  L.  ed.-  14  809 


Tlia  new  routes  were  duly  approved  by  the 
proper  authorities  and  the  Public  Service 
Commiasion,  in  accordance  with  the  general 
plan  of  the  routes,  either  obtaining  the  con- 
tent oi  the  property  owners  along  the 
routes,  or,  failing  to  obtain  such  eonsent, 
having  commissioners  appointed  by  the  ap- 
pellate division  of  the  supreme  court  to  de- 
termine [180]  and  report  whether  the 
routes  were  to  be  constructed  and  operated 
according  to  the  plans  adopted.  The  com- 
missioners reported  favorably  and  their  re- 
port was  confirmed  by  the  court,  and  the 
general  plans  "thereafter  constituted  and 
now  are  the  routes  and  general  plans  of  the 
so-called  Dual  System  of  Rapid  Transit 
Railroads  h^ein  referred  to." 

In  pursuance  of  the  rapid  transit  act  the 
Public  Service  Commission  prepared  plans 
and  specifications  for  the  construction  of 
the  major  portion  of  said  routes  in  accord- 
ance with  ihe  general  plans,  and  thereafter, 
before  awarding  any  contract,  advertised 
for  proposals  in  the  form  of  an  invitation  to 
eontractors  and  in  compliance  with  the  rap- 
id transit  act  and  the  acts  amending  and 
snpplementing  it. 

Bids  were  duly  made  and  contracts  duly 
awarded  and  approved  by  the  proper  author- 
ities. 

Each  of  the  contracts  contained  the  fol- 
lowing provisions: 

"In  obedience  to  the  requirements  of  §  14 
of  the  labor  law,  it  is  further  provided  that 
if  the  provisions  of  said  §  14  are  not  com- 
plied with,  this  contract  shall  be  void.*'  A 
provision  in  identical  language  was  con- 
tained in  the  invitation  to  bidders. 

The  requirement  (it  is  alleged)  both  in 
the  proposals  and  contracts  is  unconstitu- 
tional, void,  and  of  no  effect,  in  that  it  is 
in  conflict  with  §  2  of  article  4  of  the  Con- 
stituUon  of  the  United  States  (that  is,  *'t\\e 
citizens  of  each  state  shall  be  entitled  to  all 
privileges  and  immunities  of  citizens  in  the 
several  states")  and  with  §  1  of  article  14 
of  the  Amendments  to  the  Constitution,  and 
with  other  sections  and  provisions;  also 
in  violation  of  the  Constitution  of  the  state, 
and  in  conflict  with  the  treaty  between  the 
United  States  and  Italy  and  various  other 
treaties  which  contain  "the  most  favored 
nation  clause/' — in  other  wordsj  providing 
that  the  citizens  of  such  countries  shall  en- 
joy all  the  privileges,  rights,  and  [181]  im- 
munities which  the  citizens  of  countries 
most  favored  in  any  existing  treaty  with 
the  United  States  enjoy. 

All  of  the  contractors  promptly  made  the 
necessary  pr^arations  for  the  execution  of 
their  contracts  and  all  are  in  the  process 
of  performance  at  different  stages,  some  of 
them  having  been  performed  to  the  extent 


182,  188 


6UFRSMB  COURT  OF  THE  UNITED  STATES. 


Oor.  TknCy 


in  the  diminution  of  labor  available  for  the 
work,  which  will  greatly  protract  the  tame; 
and  litigation  with  the  contractors  will  be 
caused.  Also  damage  will  result  because  of 
the  fact  that  a  large  percentage  of  capital 
and  money  necessary  for  the  work  is  sup- 
plied by  third  parties  under  contract  with 
the  city  to  supply  the  same,  which  contracts 
were  based  upon  estimates  made  in  advance, 
and  said  contracts  may  be  invalidated  and 
the  purpose  for  which  they  were  made  de- 
feated. 

The  total  capital  to  be  supplied  was  $250,- 
000,000,  of  which  the  said  third  parties 
agreed  to  supply  $115,000,000,  and  the  city 
the  balance.  If  the  contracts  be  declared 
void  the  capital  so  to  be  supplied  will  be  in- 
adequate for  the  work,  and  the  money  al- 
ready supplied  by  the  city  and  the  said 
third  parties  will  have  been  wasted. 

Injunction  is  prayed  against  declaring  the 
contracts  void  and  forfeited  and  refusing  to 
prepare  and  certify  vouchers  of  the  amount 
of  monthly  estimates  for  work  done. 

[183]  There  was  a  demurrer  to  the  bill, 
which  was  sustained  by  the  supreme  court, 
and  injunction  denied.  The  judgment  waa 
reversed  by  the  appellate  division  and  an 
injunction  ordered,  which  action  was  re- 
versed by  the  court  of  appeals  and  the  bill 
ordered  dismissed.  214  N.  Y.  629,  108  N. 
E.  1096. 

Mr.  Thomas  F.  Oonway  argued  the 
cause,  and,  with  Mr.  Thomas  E.  O'Brien, 
filed  a  brief  for  plaintilT  in  error  William 
E.  Heim: 

A  municipal  corporation  possesses  two 
kinds  of  powers:  One  governmental  and  pub- 
lic, and  to  the  extent  this  power  is  held 
and  exercised,  it  is  clothed  with  sovereignty; 
the  other  private,  and  to  the  extent  this 
power  is  held  and  exercised,  it  is  a  legal 
individual. 

Lloyd  V.  New  York,  6  N.  Y.  374,  55  Ana. 
Dec.  347;  People  ex  rel.  Rodgers  v.  Coler, 
166  N.  Y.  1,  52  L.ILA.  814,  82  Am.  St  Rep. 
605,  59  N.  E.  716;  People  ex  rel  Coesey  v. 
Grout,  179  N.  Y.  417,  72  N.  E.  464,  1  Ann. 
Gas.  39 ;  Bieling  v.  Brooklyn,  120  N.  Y.  106, 
24  N.  E.  389;  1  Dill.  Mun.  Corp.  5th  ed. 
I  39;  Re  Rapid  Transit  R.  Comrs.  197  N. 
Y.  96,  36  L.RA..(N.a)  647,  90  N.  E.  456, 
18  Ann.  Gas.  366. 

The  city,  in  the  exercise  of  its  corporate 
powers  and  the  enjoyment  of  its  corporate 
rights,  is  entitled  to  the  same  protection 
as  an  individual  or  private  corporation, 
under  the  Constitutions  both  of  the  United 
States  and  of  the  state. 

People  V.  Ingersoll,  58  N.  Y.  29,  17  Am. 
Rep.  178;  People  v.  Fields,  58  N.  Y.  491; 
Santa  Clara  County  v.  Southern  P.  R.  Co. 
118  U.  S.  394,  30  L.  ed.  118,  6  Sup.  Ct  Rep. 

aio 


1132;  Qloucester  Ferry  Co.  t.  Fenn^lvania, 
114  U.  a  196,  204,  29  L.  ed.  158,  162,  1 
Inters.  Com.  Rep.  382,  5  Sup.  Ct  Rep.  826; 
Home  Ins.  Co.  v.  Morse,  20  Wall.  445, 455, 22 
L.  ed.  365,  369;  Hunter  v.  Pittsburgh,  207 
U.  S.  161,  179,  52  L.  ed.  151,  159,  28  Sup. 
Ct.  Rep.  40;  People  ex  rel.  Park  Comrs.  t. 
Detroit,  28  Mich.  227,  15  Am.  Rep.  202;  1 
Dill.  Mun.  Corp.  5th  ed.  §  39;  Albany  Coun- 
ty V.  Hooker,  204  N.  Y.  9,  97  N.  E.  403, 
Ann.  Cas.  1913C,  663;  South  Carolina  v. 
United  SUtes,  199  U.  S.  437,  461,  50  L.  ed. 
261,  269,  26  Sup.  Ct.  Rep.  110,  4  Ann.  Cas. 
737;  Brown  v.  Vinalhaven,  65  Me.  402,  20 
Am.  Rep.  709;  Mead  v.  New  Haven,  40 
Conn.  72,  16  Am.  Rep.  14;  Petersburg  v. 
Applegarth,  28  Gratt.  343,  26  Am.  Rep.  3.57 ; 
Eastman  v.  Meredith,  36  N.  H.  285,  72  Am. 
Dec.  302;  Western  Sav.  Fund  Soc.  v.  Phila- 
delphia, 31  Pa.  175,  72  Am.  Dec.  730 :  Rich- 
mond County  V.  Ellis.  60  X.  Y.  620:  Ft 
Edward  v.  Fish,  156  N.  Y.  368,  50  N.  S. 
973;  United  States  v.  Baltimore  ft  O.  R.  Co. 
17  Wall.  322,  332,  21  L.  ed.  59'/,  601;  Ke 
Rapid  Transit  R.  Comrs.  39?  N.  Y.  81,  36 
L.R.A.(N.S.)  647,  90  N.  E.  450,  18  Ann. 
Cas.  366;  Mt  Pleasant  v.  Beck  with,  100 
U.  S.  514,  524,  25  L.  ed.  699,  701;  Hunter 
V.  Pittsburgh,  207  U.  S.  161,  179,  52  L. 
ed.  151,  159,  28  Sup.  Ct  Rep.  40;  New  Or- 
leans ▼.  New  Orleans  Waterworks  Co.  142 
U.  S.  79,  35  L.  ed.  943,  12  Sup.  Ct.  Rep 
142;  Allen  v.  Jay,  60  Me.  124,  11  Am.  Rep. 
185;  Lowell  v.  Boston,  111  Mass.  454,  15 
Am.  Rep.  39. 

The  city  owns  the  subway,  and  it  is  a 
railroad  corporation,  so  far  as  the  oonstrue- 
ticm,  operation,  and  leasing  thereof  is  con- 
cerned. 

Re  Rapid  Transit  R.  Comrs.  197  N.  Y.  81, 
36  L.R.A.(N.S.)  647,  90  N.  E.  456,  18  Ann. 
Cas.  366. 

There  are  certain  things  which  it  is  not 
competent  for  state  legislatures  to  do  by 
enactment,  even  if  there  should  be  found  in 
the  Constitution  of  a  state  or  of  the  United 
States  no  special  restrictions  on  their  pow«r. 

Calder  v.  Bull,  3  Dall.  386,  I  L.  ed.  648; 
Wilkinson  v.  Leland,  2  Pet.  627,  7  L.  ed. 
542;  Smith  v.  AUbama,  124  U.  S.  465,  31 
L.  ed.  508,  1  Inters.  Com.  Rep.  804,  8  Sup. 
Ct.  Rep.  ^4;  State  ex  rel.  Atty.  Gen.  ▼. 
Moores,  55  Neb.  480,  41  L.R.A.  624,  76  N. 
W.  175 ; .  Bradshaw  v.  Rodgers,  20  Johns. 
103 ;  Rathbone  v.  Wirth,  150  N.  Y.  459,  34 
L.R.A.  408,  45  N.  E.  15;  Camp  v.  Rogers,  44 
Conn.  291;  Bonham's  Case,  8  Coke,  114a; 
London  v.  Wood,  12  Mod.  669:  Terrett  v. 
Taylor,  9  Cranch,  43,  3  L.  ed.  650;  People 
ex  rel.  Darling  v.  Warden,  154  App.  Div. 
413,  139  N.  Y.  Supp.  277. 

Under  the  principles  recognized  and  es- 
tablished by  thia  court  and  the  courts  of 
many  states^  the  provisions  of  §  14,  of  the 

239  U.  S. 


191S. 


HEIM  T.  MoCALL. 


labor  law,  prohiUtiiig  tbe  employment  of 
ilienSy  and  giving  preference  to  citizens  of 
Kew  York  itate,  in  fubwaj  construction  or 
other  municipal  work,  are  plainly  in  Tiola- 
tioB  of  the  United  States  Constitution  above 
rrferred  to,  both  as  regards  the  rights  of 
fhe  municipality  and  those  of  individuals, 
ispeeially  taxpayers  of  the  city,  citizens  ef 
oUier   states,   and  aliens  residing  in   said 
rtate,  as  well  as  contractors  with  the  city. 
Gulf,  C.  A  S.  F.  R,  Co.  V.  Ellis,  165  U. 
8.  150,  150,  41  L.  ed.  666,  660,  17  Sup.  Ct. 
Rep.  255;  Yick  We  v.  Hopkins,  118  U.  6. 
S56,  360,  30  L.  ed.  220,  226,  6  Sup.  Ct  Rep. 
1064;  Barbier  v.  Connolly,  113  U.  S.  27,  28 
L.  ed.  923,  5  Sup.  Ct.  Rep.  357;  Ward  v. 
ICa^rland,    12   Wall.   430,   20   L.   ed.   452; 
Stockton  Laundry  Case,  26  Fed.  611;  United 
SUtes  V.  Martin,  94  U.  S.  400,  403,  24  L. 
ed.  128;  Butchers'  Union  S.  H.  ft  L.  S.  L. 
Go.  V.  Crescent  City  L.  S.  L.  k  S.  H.  Co. 
Ill  U.  S.  746,  757,  28  L.  ed.  585,  591,  4 
Sup.  Ct.  Rep.  652;  Connolly  v.  Union  Sewer 
Pipe  Co.  184  U.  S.  540,  46  L.  ed.  679,  22 
Sop.  Ct.  Rep.  431 ;  Missouri  v.  Lewis  ( Bow- 
nan  V.  Lewis)   101  U.  S.  22,  31,  25  L.  ed. 
m,  992;  Hayes  v.  Missouri,  120  U.  S.  68, 
71,  30  L.  ed.  578,  580,  7  Sup.  Ct.  Rep.  350; 
Bell's  Gap  R.  Co.  v.  Pennsylvania,  134  U. 
8.  237,  33  L.  ed.  895,  10  Sup.  Ct.  Rep.  533 ; 
Pearsons  ▼.  Portland,  69  Me.  278,  31  Am. 
Rep.  276;  Re  Hburcio  Parrott,  6  Sawy.  349, 
1  Fed.  481 ;  People  ez  rel.  Rodgers  v.  Coler, 
166  N.  Y.  1,  52  L.R.A.  814,  82  Am.  St.  Rep. 
60S,  59  N.  £.  716;  People  ex  rel.  Cossey  v. 
Grout,  179  N.  Y.  417,  72  N.  E.  464,  1  Ann. 
Cis.  39;  Meyers  v.  New  York,  58  App.  Div. 
6S4,  69  N.  Y.  Supp.  629;  Re  Jacobs,  98  N. 
T.  98,  50  Am.  Rep.  636;  People  v.  Marx,  99 
N.  Y.  378,  52  Am.  Rep.  34,  2  N.  £.  29; 
People  ▼.  Gillson,  109  N.  Y.  389,  4  Am.  St. 
Hep.  465,  17  N.  E.  343;  Colon  v.  Lisk,  153 
K.  Y.  188,  60  Am.  St.  Rep.  609,  47  N.  E. 
302;  People  v.  Hawkins,  157  N.  Y.  1,  42 
L.RA.  490,  68  Am.  St.  Rep.  736,  51  N.  E. 
267;  People  ex  rel.  Tyroler  v.  Warden,  157 
N.  Y.  116,  43  L.R.A.  264,  68  Am.  St.  Rep. 
763,  61  N.  E.  1006 ;  Bertholf  v.  O'Reilly,  74 
H.  Y.   509,   30   Am.   Rep.   323;    People  v. 
Williams,  189  N.  Y.  134,  12  L.R.A.(N.S.) 
1130,  121  Am.  St.  Rep.  854,  81  N.  E.  778; 
People  V.  Orange  County  Road  Oonstr.  Co. 
176  N.  Y.  84,  65  L.R.A.  33,  67  N.  E.  129 ; 
State  V.  Goodwill,  33  W.  Va.  179,  6  L.R.A. 
^,  25  Am.  St.  Rep.  863,  10  S.  E.  285 ;  Ex 
Ptrte  Kuback,  85  Cal.  274,  9  L.R.A.  482, 
^Am.  St.  Rep.  226,  24  Pac.  737;  Ramsey 
▼•  People,  142  111.  380,  17  L.R.A.  853,  32 
N.  £.864:  Com.  v.  Perry.  155  Mass.  117» 
H  LR.A.  325,  31  Am.  St.  Rep.  533,  28  N.  E. 
1126;   SUte  V.   Loomis,    115   Mo.   307,   21 
UUL  789,  22   S.   W.  350;    Godcharles  v. 
Wigeman,  118  Pa.  431,  6  Atl.  354;  Frorer 
▼.  People,  141  UL  171,  16  L.RJL  492,  31 
66L.  ed. 


N.  E.  395;  McChesney  t.  People,  200  HI. 
146,  65  N.  E.  626;  Chicago  v.  Hulbert»  205 
111.  346,  68  N.  E.  786. 

If  the  state,  which  has  reserved  the  right 
and  power  to  amend,  alter,  or  repeal  the 
charter  of  a  private  corporation,  may  not 
legitimately  exercise  that  power  to  destroy 
rights  acquired  by  virtue  of  the  charter 
granted,  or  which,  by  a  legitimate  use  of 
the  powers  granted,  have  become  vested  in 
the  corporation,  how  can  it  be  contended 
that  the  rights  of  the  city  of  New  York, 
acquired  by  it  under  its  ancient  charters, 
or  those  of  a  later  date,  and  also  under  the 
authority  of  the  legislature,  may  be  inter- 
fered with  by  subsequent  legislative  enact- 
ment? 

Sinking  Fund  Cases,  99  U.  S.  700,  720, 
25  L.  ed.  496,  502 ;  Maine  C.  R.  Co.  v.  Maine, 
96  U.  S.  510,  511,  24  L.  ed.  840,  841;  Com. 
V.  Essex  Co.  13  Gray,  239;  Miller  v.  New 
York,  15  Wall.  498,  21  L.  ed.  104;  Pawlet 
V.  Clark,  9  Cranch,  292,  3  L.  ed.  735;  Ter- 
rett  V.  Taylor,  9  Cranch,  43,  3  L.  ed.  650; 
Trustees  of  University  v.  Foy,  3  N.  C.  (2 
Hayw.)  310;  Pearsall  v.  Great  Northern  R. 
Co.  161  U.  S.  646,  40  L.  ed.  838,  16  Sup. 
Ct.  Rep.  706. 

Apart  from  the  foregoing  considerations, 
S  14  of  the  labor  law  on  its  face  applies  to 
contracts  in  existence  at  the  time  of  its  pas- 
sage, as  well  as  to  contracts  to  be  entered 
into  after  its  passage,  and  is  therefore  void. 

Wynehamer  v.  People,  13  N.  Y.  378; 
People  V.  Orange  County  Road  Constr.  Co. 
175  N.  Y.  84.  65  L.RJ^..  33,  67  N.  E.  129; 
Russell  V.  Sebastian,  233  U.  S.  195,  58  L. 
ed.  912,  L.R.A.— ,  — ,  34  Sup.  Ct.  Rep. 
517,  Ann.  Cas.  1014C,  1282;  Von  Hoffman 
V.  Quincy,  4  Wall.  535,  18  L.  ed.  403;  St. 
Louis  V.  Western  U.  Teleg.  Co.  148  U.  S. 
92,  37  L.  ed.  380,  13  Sup.  Ct.  Rep.  485; 
New  Orleans  v.  Southern  Teleph.  k  Tcleg. 
Co.  40  La.  Ann.  41,  8  Am.  St.  Rep.  502,  3 
So.  533;  Grand  Trunk  Western  R.  Co.  v. 
South  Bend,  227  U.  S.  544,  57  L.  ed.  633, 
44  L.R.A.(N.S.)  405,  33  Sup.  Ct.  Rep.  303; 
Miller  v.  New  York,  15  Wall.  498,  21  L. 
ed.  104;  Pearsall  v.  Great  Northern  R.  Co. 
161  U.  S.  646,  40  L.  ed.  838,  16  Sup.  Ct. 
Rep.  705;  Thomas  v.  West  Jersey  R.  Co. 
101  U.  S.  71,  25  L.  ed.  950. 

The  principles  of  natural  justice  are  the 
principles  determining  what  is  and  what  is 
not  due  process  of  law  within  the  14th 
Amendment. 

Camp  V.  Rogers,  44  Conn.  297;  Hurtado 
V.  California,  110  U.  S.  516,  28  L.  ed.  232, 
4  Sup.  Ct.  Rep.  Ill,  292;  Bank  of  Columbia 
V.  Okely,  4  Wheat.  235-244,  4  L.  ed.  559- 
561;  Brown  v.  Levee  Comrs.  50  Miss.  468; 
Citiaras'  Sav.  k  L.  Asso.  v.  Top^a,  20  Wall. 
655-662,  22  L.  ed.  455-461 ;  Reich  v.  Truax, 
219  Fed.  273. 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cot.  Tebic, 


Privileges  and  immunities  of  citizens  in 
the  sereral  states  are  denied  by  the  pref- 
erence granted  citizens  of  the  state  of  New 
York  by  the  labor  law. 

Slaughter-House  Cases,  16  Wall.  36,  75, 
21  L.  ed.  304,  408 ;  Paul  v.  Virginia,  8  Wall. 
168,  180,  19  L.  ed.  357,  360;  Lemmon  v. 
People,  20  N.  Y.  608;  Ward  v.  Maryland, 
12  Wall.  418,  20  L.  ed.  440. 

Section  14  of  the  labor  law  in  question, 
prohibiting  the  employment  of  alien  labor, 
is  in  conflict  with  the  provisions  of  the 
treaties  now  existing  between  many  foreign 
nations  and  the  United  States,  and  is  there- 
fore void. 

Society  for  Propagation  of  the  €k>spel  v. 
New  Haven,  8  Wheat.  464,  6  L.  ed.  662; 
United  States  v.  Rauscher,  119  U.  S.  407, 
30  L.  ed.  425,  1  Sup.  Ct.  Rep.  234,  6  Am. 
Crim.  Rep.  222;  Foster  v.  Neilson,  2  Pet. 
253,  314,  7  L.  ed.  415,  435;  Head  Money 
Cases  (Edye  v.  Robertson)  112  U.  S.  580, 
598,  28  L.  ed.  798,  803,  5  Sup.  Ct.  Rep.  247 ; 
6  Moore,  Int.  Law  Dig.  p.  566;  Baldwin  v. 
Franks,  120  U.  S.  678,  682,  683,  30  L.  ed. 
766-768,  7  Sup.  Ct.  Rep.  666,  763;  Yick 
Wo  V.  Hopkins,  118  U.  S.  356,  30  L.  ed.  220, 
6  Sup.  Ct.  Rep.  1064;  Hauenstein  v.  Lyn- 
ham,  100  U.  S.  483,  25  L.  ed.  628;  Geofroy 
V.  Riggs,  133  U.  S.  258,  33  L.  ed.  642,  10 
Sup.  Ct.  Rep.  295;  Re  Tiburcio  Parrott,  6 
Sawy.  349,  1  Fed.  481;  Baker  v.  Portland, 
6  Sawyer,  666,  Fed.  Cas.  No.  777;  Live- 
stock Dealers  k  Butchers'  Asso.  v.  Crescent 
City  L.  S.  L.  &  S.  H.  Co.  1  Abb.  (U.  S.) 
389,  Fed.  Cas.  No.  8,408;  Bobbins  v.  Taxing 
Dist.  120  U.  S.  489,  493,  30  L.  ed.  694,  695, 
1  Inters.  Com.  Rep.  45,  7  Sup.  Ct.  Rep.  592; 
Rutgers  v.  Waddington  (N.  Y.)  decided  in 
Mayor's  Ct.  1784;  Dufour's  Succession,  10 
La.  Ann.  391;  Yeaker  v.  Yeaker,  4  Met. 
(Ky.)  33,  81  Am.  Dec.  530;  Amat's  Sue 
cession,  18  La.  Ann.  403;  Crusius's  Succes- 
sion, 19  La.  Ann.  369;  Wunderle  v.  Wun- 
derle,  144  111.  40,  19  L.R.A.  84,  33  N.  E. 
195;  Opel  v.  Shoup,  100  Iowa,  407,  37  L.B.A. 
683,  69  N.  W.  560;  Rabasse's  Succession,  47 
La.  Ann.  1454,  49  Am.  St.  Rep.  433,  17  So. 
867;  Rixner's  Succession,  48  La.  Ann.  5.53, 
32  L.R.A.  177,  19  So.  697;  Tellefsen  v.  Fee, 
168  Mass.  188,  45  L.R.A.  481,  60  Am.  St. 
Rep.  379,  46  N.  E.  562;  Bahaud  v.  Bize, 
105  Fed.  485;  Doe  ex  dem.  Dockstader  v. 
Roe,  4  Penn.  (Del.)  398,  66  Atl.  341;  Leh- 
man V.  State,  46  Ind.  App.  330,  88  N.  £. 
366;  Re  Stixrud,  68  Wash.  339,  33  L.R.A. 
(N.S.)  632,  109  Pac.  343,  Ann.  Cas.  1912 A, 
860;  People  ex  rel.  Atty.  Gen.  v.  Gerke,  6 
Cal.  381;  Blythe  v.  Hinckley,  127  Cal.  431, 
69  Pac.  787;  Wilcke  v.  Wilcke,  102  Iowa, 
174,  71  N.  W.  201. 

This  court  Is  not  concluded  by  any  con- 
■truction  put  upon  |  14  of  the  labor  law 
SIS 


by  the  New  York  court  of  appeals  In  tho 
decision  of  this  case. 

Jefferson  Branch  Bank  v.  Skelly,  1  Black, 
436,  443,  17  L.  ed.  173,  177;  Wright  t. 
Nagle,  101  U.  S.  791,  25  L.  ed.  921;  Hli- 
nois  C.  R.  Co.  v.  Chicago,  176  U.  S.  646, 
44  L.  ed.  622,  20  Sup.  Ct.  Rep.  609;  Swift 
V.  Tyson,  16  Pet.  1,  19,  10  L.  ed.  865,  871; 
Russell  V.  Southard,  12  How.  139,  147,  13 
L.  ed.  927,  930;  Watson  v.  Tarpley,  18  How. 
617,  620,  15  L.  ed.  609,  611;  Chicago  v. 
Robbins,  2  Black,  418,  17  L.  ed.  298;  Butz 
V.  Muscatine,  8  Wall.  676,  19  L.  ed.  490; 
Olcott  V.  Fond  du  Lac  County,  16  Wall.  678, 
21  L.  ed.  382;  Boyce  v.  Tabb,  18  Wall.  546, 
21  L.  ed.  757;  Gates  v.  First  Nat.  Bank, 
100  U.  S.  230,  246,  26  L.  ed.  680,  683; 
Brooklyn  City  &  N.  R.  Co.  v.  National  Bank, 
102  U.  S.  14,  26  L.  ed.  61;  Burgess  v.  Selig- 
man,  107  U.  S.  20,  27  L.  ed.  359,  2  Sup.  Ct. 
Rep.  10;   Pana  v.  Bowler,  107  U.  S.  529, 

27  L.  ed.  424,  2  Sup.  Ct.  Rep.  704;  Fall- 
brook  Irrig.  Dist.  v.  Bradley,  164  U.  S.  112, 
160,  41  L.  ed.  369,  389,  17  Sup.  Ct.  Rep. 
66;  Clark  v.  Nash,  198  U.  S.  361,  369,  49 
L.  ed.  1086,  26  Sup.  Ct.  Rep.  676,  4  Ann. 
Cas.  1171;  Hairston  v.  Danville  k  W.  R. 
Co.  208  U.  S.  598,  607,  52  L.  ed.  637,  641, 

28  Sup.  Ct.  Rep.  331,  13  Ann.  Cas.  1008; 
Union  Lime  Co.  v.  Chicago  k  N.  W.  R.  Co. 
233  U.  S.  211,  68  L.  ed.  924,  34  Sup.  Ct. 
Rep.  622. 

Every  question  which  was  before  the  state 
court  is  before  this  court,  except  the  ques- 
tion as  to  the  conflict  of  §  14  of  the  labor 
law  with  the  provisions  of  the  Constitution 
of  the  state  of  New  York. 

Martin  v.  Hunter,  1  Wheat.  304,  4  L.  ed. 
97 ;  Tennessee  v.  Davis,  100  U.  S.  257,  26  L. 
ed.  648. 

Even  if  §  14  of  the  labor  law  be  held  con* 
stitutional,  it  does  not  apply  to  labor  em- 
ployed in  the  performance  of  the  subway 
contracts  in  question  for  the  following  rea- 
sons: 

(a)  They  are  not  the  character  of  "pub- 
lic*' contracts  mentioned  in  {  14. 

Lloyd  V.  New  York,  6  N.  Y.  369,  56  Am. 
Dec.  347;  Re  Rapid  Transit  R.  Comrs.  197 
N.  Y.  81,  36  L.R.A.(N.S.)  647,  90  N.  E. 
456,  18  Ann.  Cas.  366;  Sutherland,  Stat. 
Constr.  §  380. 

(b)  Even  if  they  were,  the  section  must 
be  deemed  to  be  repealed  or  superseded  by 
the  rapid  transit  act  and  its  amendments. 

Schieffelin  v.  McClellan,  136  App.  Dir. 
665,  120  N.  Y.  Supp.  216;  Heckmann  ▼. 
Pinkney,  81  N.  Y.  211;  Excelsior  Petroleum 
Co.  v.  Lacey,  63  N.  Y.  422;  People  v.  Gold 
&  Stock  Teleg.  Co.  98  N.  Y.  67;  New  York 
Cable  Co.  v.  New  York,  104  N.  Y.  16,  10 
N.  £.  332;  Woods  v.  Madison  County,  136 
N.  Y.  403,  32  N.  E.  1011;  Ackerson  v.  Nlag- 

289  U.  S. 


ItlB.  BBIU  T.  MoCALX. 

trk  Conn^    7S  Hon,  SIB,  Sfi  N.  Y.  Supp.  73,  3S  L.  cd.  M3,  048,  12  Snp.  Ct.  Hep,  Hi; 

JM;  CoolBj,  CoDrt.  Urn.  7th  ed.  p.  256.  EUtthbona  t.  Wirth,  160  N.  Y.  4S9,  34  LJIA 

(c)   If  the  labor  Uw  ever  did  ipply,  the  108,  45  N.  E.  16;  Gage  ».  New  York,   110 

dty  wM  eetopped  (rom  invoking  it,  OT  lU  App.  Dit.  403,  »7  N.  Y.  Supp.  167;  Ziegler 

ririit  to  do  «o  had  been  waited.  r.  Chapin,  126  N.  Y.  342.  27    N.   E.  47]i 

Re  Reynolda,  202  N.  Y.  430,   96   N.  E.  Warrin  v.  Baldwin,  100  N.  Y.  634,  12  N. 

«  416;  KJernan  t.  Dutchew  County  MuL  E.  49;  Hlcke  v.  Eggleeto".  IM  ApP-  Wt. 

Ini.  Co.  150  N.  Y.  100,  44  N.  E.  608 ;  Draper  73,  93  N.  Y.  Supp.  009 ;    Peck   *.   Belknap, 

».  Oewego  County  Fire  Belief  Awo.  190  N.  130  N.  Y.  394,  29  N.  E.  977;  Hopper  v.  WU- 

T  12,  82  N.  E.  765;  Clark  v.  Wert,  193  N.  cox,   166  App.    Div.  213,   140   N.  Y.   Supp, 

T.  349,  86  N.  E.  1.  277 1    Brill   v.   Miller.    140    App.   Div.    802, 

The'eovenaDt    in    the    coDHtruetion    con-  128  N.  Y.  Jupp.  866;  Davenport  v.  Walker, 

tncta  to  comply  with  |  14  of  the  Ubor  Uw  57    App.    Div.    221.    68    N.    Y.    Supp.    161; 

It  not   binding   on   the   eontractora   if   the  Rogeri  v.  Weitcheater  County,  77  App.  Div. 

hw    itaelf    ie    invalid    becauae    it    conflicta  601,   78  N,  Y,  Supp.    1081;    Wenk  v.  New 

with  the  Constitution  or  with  treaty   pro-  York,  171  N.  Y.  607.  64  N.  E.  609;  Perkina 

finoni.  V.   Stimmel,   114   N.   Y.   38B,   11    Am.   St. 

People  ex   rel.  Rodger*  v,  Coler,  166  N.  Rep.  669,  21  N.  B.  729. 
Y.  1,  62  L.R.A.  814,  82  Am.  St.  Rep.  606,       y^   j^,,  p   McKinney  filed  a  brief  for 

»  N.    E.   716;    People   ex   reL   North    v.  pi^i^tiffa  in  error  the  Cranford  Company 

Featheratonhaugh,  172  N.  Y.  112,  60  L.R-A.  j;„j  y,g  piinn-O'Rourke  Company: 
T»e,  64  N.  E.  802;  Knowlea  v.  New  York.       ^^;,j,  y,^  ,,  „l  the  aUke  conatitute 

lie  N.  Y.  430,  68  N.  E.  860;  Meyers  v.  y,^  ^j^_  ^^f^^  membera  ate  itt  citi«eni 
Kew  York.  68  App.  Div.  634,  69  N.  Y.  Bupp.    (p^nhallow  v.  Doane,  3  Dall.  64,  93,  1  L. 

S»i  Home  Ina.  Co.  v.  Morae,  20  Wall.  443,  ^   ^qj^  ggj.  -j-^^  ^   wi,it,_  j  ^Vail.  700, 

M  L.  ed.  366;  CleveUnd  v.  Clementa  Broe.  ^g  ^  ^   227;  United  SUtee  v.  Cruikahank, 

Cenatr.  Co.  67  Ohio  St.  197,  59  L.H.A,  776,  92  u    8    642,  23   L.  ed.  688),  and  while 

13  Am.  St.  Bep.  670.  66  N.  E.  BBS.  ^^^^^  ,„  not  conatituenta  of  Buch  member- 

V  the  rtipuUtion  in  the  contract  to  com-  ^j  the  control  o(  the  sUte  over  the  prop- 
ply  with  the  provieione  of  |  14  of  the  laboi  ,^  ^j  jj,  citizene  U  by  no  meana  abtolutfc 
Uw,  that  ia,  to  employ  no  alicne,  and  to  -n,  ^^  ^j  taxation,  which  baa  been 
prefer  anjong  laborers  thoae  who  are  citr  ^^^^^  to  be  the  very  eaaence  of  the  governing: 
•Ml  of  the  etate  of  New  York,  be  considered          „_  j,  „„t  unlimited. 

without  regard  to  the  terms  of  t  1*  ot  tht         Citiieni'  Sav.  k  L.  AbM).  t.  Topdta,  2I> 
labor   Uw,    requiring  the   ineertion    of   th«     ^.^n    ^^^  gg  L.  ed.  456. 
Kipulation.  and  be  considered  merely  aa  ■         jj^^  ,  „(  tb^  ,t«U  over  the  pobUc 

Itipulation  inserted  by  the  eity  on  its  ow«  p„pa.ty  i«  no  more  ab«>lute.  A  preaent 
authority,  it  ia  manlfcrtly  invalid,  not  only  i^gi,ti,e  body  cannot  abdicaU  Ito  ao- 
to  aU  the  reaami*  set  forth  above  witb  t^ority.  nor  forecloae  a  succeeding  legiala- 
r^ard  to  |  14  of  the  labor  law,  aa  a  li«is  t„^,  j^^  ^^100  In  the  same  matter,  nor 
Utive  enactment  in  violation  of  the  Con  ^^  y,^  ^te  permanently  relinquish  the 
rtitution.  but  for  the  further  reason  that  tniel  vested  in  it  to  control  and  manage  the 
tt  IS  againat  public  policy,  and  in  rertrainl        ,,1;^  property. 

d  trade  and  competition,  and  prevents  fre«         minois  C.  R.   Co.  v.  Illboia,  146  U.  S. 
■od    unreatrieted    bidding    upon    mnnieipal     3^^^  gg  ^  ed.  1018,  13  Sup.  Ct.  Rep.  110. 
"j;'*  „,  „  ,        ^      _,         Nor  can  the  state  recall  powers  vested  In 

Davenport  v.  Walker,  67  App.  Div.  221  ,  municipality  in  such  a  way  aa  to  impair 
•8  N.  \.  Snpp.  1«1:  People  ei  rel.  Johr  y,,  obligation  of  contraeta. 
Single  Paper  Co.  v.  Edgcomb,  112  App.  Div  Williams  v.  Eggleaton,  170  U.  8.  304, 
»4,  08  N.  Y.  Supp.  966;  Inge  v.  Publi<  ^g  l.  ed.  1047,  18  Sup.  Ct.  Rep.  617;  1 
Works,  136  Ala.  187.  03  Am.  St.  Rep.  20;  j,iH.  Mun.  Corp.  6th  ed.  g§  108-111.  113- 
31  80.  678;  McChesney  v.  People,  200  111  ^jg  n^no,  132;  People  ex  rei.  URoy  v. 
146,  65  N.  E.  626;  Sweet  v.  People,  200  III  Hurlbut.  24  Mich.  103;  SUU  ex  rel.  B^rd 
BB.  65  N.  E.  1004:  Glover  v.  People.  201  ^,  Education  v.  Haben,  22  Wis.  660;  Mt 
IH^646,  66  N.  E.  820;  Chicago  v.  Hulbert  Hope  Cemetery  v.  Bceton.  168  Ma«i.  6O0. 
BK  III.  846,  flB  N.  E.  786.  35  ^^    g^^  ^^    gi5_  33  jj    g    jgg.    yY^^b 

An  aetion  may  be  maintaioed  by  a  tax  ,,.  jjew  York,  64  How.  Pr.  10. 
payer  to  enjoin  an  official,  or   threaUned        The  state*  have  voluntarily,  deliberat^y, 
etteial,   act,  upon  the  ground   of   illegality     tni  irrevocably  given  up   for  the  oommon 
simply,  or  ta  enjoin  an  official  act  which    national    advantage    certain    attributea   of 
will  result  in  waate  or  injury  to  tint  public    sovereignty,  and  have  vested  in  the  national 

Admiral  Realty  Co.  v.  New  York.  fiOt  legislative  body  and  iU  executive  certain 
N.  Y.  110,  90  N.  E.  241;  New  Orleans  v  powers  of  action  which  preclude  the  exercise 
Vew  Orleana  Waterworks  Co.  142  U.  S.  79,  of  slBllar  powers  in  the  aUtea,  sod  at  Um 
M  L.  «d.  *V» 


SUPREME  COURT  OF  THE  UNITED  STATES.  Oct.  Tfeuc, 

same  time  have  solemnly  covenated  that  any  N.  E.  395;   McChesney  ▼.  People,  200  UL 

state    action    conflicting    with    such    ceded  146,  65  N.  £.  626;  Chicago  t.  Hulbert,  206 

powers  sliall  be  null  and  void.  111.  346,  68  N.  E.  786. 

Penhallow  t.  Doane,  3  Dall.  54,  1  L.  ed.  Section  14  of  the  labor  law  also  Tiolates 

507;   Texas  ▼.  White,  7  WalL  720,  10  L.  treaties  duly   entered  into  by  the  United 

ed.  236;  United  States  v.  Cruikshank,  92  U.  States  government  with  foreign  nations,  and 

S.  542,  23  L.  ed.  588;  Chae  Chan  Ping  t.  §   1977,  Rev.   SUt.    (Comp.   Stat.   1918,  | 

United  States,  130  U.  S.  581,  32  L.  ed.  1068,  3925). 

9  Sup.  Ct.  Rep.  623;  Gibbons  v.  Ogden,  9  38  Cyc.  906;  Penhallow  ▼.  Doane,  3  DalL 

Wheat.  1,  6  L.  ed.  23;  Cohen  v.  Virginia,  54,  1  L.  ed.  507;  Chae  Chan  Ping  v.  United 

6  Wheat.  264,  5  L.  ed.  257.  States,  130  U.  S.  581,  32  L.  ed.  1068,  9  Sup. 

Authority  for  this  law  does  not  lie  in  Ct.  Rep.  623;  Head  Money  Cases  (Edye  v. 

the  police  power.  Robertson)    112  U.  S.  580,  28  L.  ed.  798, 

Henderson  v.  New  York    (Henderson   v.  5  Sup.  Ct.  Rep.  247;   Hauenstein  v.  Lyn- 

Wickham)  92  U.  S.  259,  23  L.  ed.  543;  New  ham,  100  U.  S.  487,  25  L.  ed.  629;  Re  Ti- 

Orleana  Gaslight   Co.   v.   Louisiana  Light,  burcio  Parrott,  6  Sawy.  349,  1   Fed.  481; 

ft  H.  P.  ft  Mfg.  Co.  115  U.  S.  650,  29  L.  United  States  v.  Rauscher,  119  U.  S.  407, 

ed.  516,  6  Sup.   Ct.  Rep.  252;    Holden   v.  30  L.  ed.  425,  7  Sup.  Ct.  Rep.  234,  6  Am. 

Hardy,  169  U.  S.  366,  42  L.  ed.  780,  18  Crim.  Rep.  222;  Baker  v.  Portland,  5  Sawy. 

Sup.  Ct.  Rep.  383;  Jacobson  v.  Massachu-  566,  Fed.  Cas.  No.  777. 

setts,  197  U.  S.  11,  49  L.  ed.  643,  25  Sup.  The  constitutional  protection  of  liberty 

Ct.  Rep.  358,  3  Ann.  Cas.  765;  Lochner  v.  and  property  includes  the  right  to  labor  at 

New  York,  198  U.  S.  45,  49  L.  ed.  937,  25  any  chosen  lawful  occupation. 

Sup.  Ct.  Rep.  539,  3  Ann.  Cas.  1133.  Coppage  v.  Kansas,  236  U.  S.  1,  59  L. 

The    distinction    between    citizens    and  ed.  441,  L.H.A.1915C,  960,  35  Sup.  Ct.  Rep. 

aliens  is  insufficient  to  justify  the  act.  240;  Lochner  v.  New  York,  198  U.  S.  46, 

Yick  Wo  V.  Hopkins,  118  U.  S.  356,  30  49  L.  ed.  937,  25  Sup.  Ct.  Rep.  539;  Smith 

L.  ed.  220,  6  Sup.  Ct.  Rep.  1064.  v.  Texas,  233  U.  S.  630,  58  L.  ed.   1129, 

Section  14  of  the  labor  law  violates  the  L.RJ1.1915D,   677,   34   Sup.   Ct.   Rop.    681, 

14th  Amendment  of  the  Constitution  of  the  Ann.  Cas.  1915D,  420;  Southern  R.  Co.  v. 

United  States,  reinforced  as  it  is  by  §  1977,  Greene,  216  U.  S.  400,  54  L.  ed.  536,  30 

Rev.  Stat.  (Comp.  Stat.  1913,  g  3925).  Sup.  Ct.  Rep.  287,  17  Ann.  Cas.  1247;  AU- 

Lem   Moon   Sing  v.  United   States,   158  geyer  v.  Louisiana,  165  U.  S.  578,  41  L. 

U.  S.  538,  39  L.  ed.  1082,  15  Sup.  Ct  Rep.  ed.  832,  17   Sup.  Ct.  Rep.  427 ;   Butchers' 

967 ;  Yick  Wo  v.  Hopkins,  118  U.  S.  356,  Union  S.  H.  ft  L.  S.  L.  Co.  v.  Crescent  City 

30  L.  ed.  220,  6  Sup.  Ct.  Rep.  1064;  Freund,  L.  S.  L.  &  S.  H.  Co.  Ill  U.  S.  746,  28  L. 

Pol.  Power,  S§  705,  706 ;  Connolly  v.  Union  ed.  585,  4  Sup.  Ct.  Rep  652. 

Sewer  Pipe  Co.   184  U.  S.  540,  46  L.  ed.  ^^     George    8.    Coleman    argued    the 

rl^L  ^}  l^^:  ^,.^P;T*i^'  c^o"""^.,^)"^  r  ca^w  wid  fil^d  a  brief  for  defendants  in  er- 

United  States,   163   U.   S.   228,   41   L.   ed.  ^^^. 

«^?'J^/?J5;  ^o:^''^:  ^^iL^""  ^^W^'T^'  S«5^o«  1*  of  the  Ubor  Uw  of  the  sUte 

l^l  ^^'r^^'.^^fo^  ^^  Davenport,  22  How.  ^^  j^^^  York,  in  providing  that  only  citirens 

227,  16  L.  ed.  243;   Re  Baldwin    27  Fed.  ^,  ^^^  United  States  shall  be  employed  in 

187;    Second    Employers'    Liability    Cases  ^y^^   construction   of   public   works   by   tha 

i^^^T^^^a  \'  ^l^T  ^^\o'r'  ?o  t  ^'a^V^q  !  »*»*«  «»•  »  municipality,  or  by  persons  coii- 

223  U.  S.  1,  66  L.  ed.  327,  38  L.R.A.(N.S.)  tr^ctinff  with  the  state  or  such  municipality. 

44,  32  Sup.  Ct.  Rep.  169,  1  N.  C.  C.  A.  875;  ^^  ^"^  ^j^^j     ^i^,^^  ^^^^  ^^  ^^^{^ 

M'Culloch  V.  Maryland   4  Wheat.  316,  405,  ^^^.^^  ^,  ^^  ,^^  ^^  Constitution  of  tha 

T  ^f*«^3®^ri^^*,o^''"^''u  *'*"''''i^^  United  States,  or  treaties  with  foreign  coun- 

L.R.A.  277,  49  Fed.  181;  Workman  v.  New  ^.^                                                    ^ 

York,  179  U.  S.  552,  45  L.  ed.  314,  21  Sup.  p^pj^  ^^  ^^   ^^  ^   I^^p^^  15  ^   Y. 

Ct.  Rep.  212;   People  v.  King    110  N.  Y.  543.    p^pj^  ^  ^^j    Williams  Engineering 

418,  1  L.R.A.  293,  6  Am.  St.  Rep.  389,  18  ^  Contracting  Co.  v.  Mets,  193  N.  Y.  160. 

N.  E.  245;  People  ex  rel.  Tyroler  v.  Warden,  ^  l.rj^.(N.S.)  201,  85  N.  E.  1070;  People 

i^^  ^'-J^'.i^S;  ^i  ^a;^\?^;  ^^^'!J*Q  xV  ▼•   I-  M.  Ludlngton's   sons,  74  Misc.   364, 

l^^J^h^l  ^if-    Z'  ^Pnfr^'  T^    •  131  N.  Y.  Supp    550,  32  C^c  1261;  AtWn 

Y.  98,  50  Am.  Rep.  636;   Butchers'  Union  Tr«n—    loi    it    r    907    99^    aa  t     ^ 

S.  H.  ft  L.  S.  L.  Co.  V.  Crescent  City  L.  S.  [.^^^^.^^l^^^                      ^S  U  ed. 

L.  ft  S.  H.  Co.  Ill  U.  S.  746,  28  L.  ed.  1*®'  ^^^'  ^^  ^"P-  ^'  ^^'  ^^ 

686,  4  Sup.  Ct.  Rep.  652 ;  People  v.  Hawkins,  The  alleged  inabiUty  of  the  contractora 

157  N.  Y.  1,  42  L.R.A.  490,  68  Am.  St.  Rep.  ^  »«««'«  »  sufficient  number  of  citizen  U- 

736,  51  N.  E.  257 ;  People  v.  Marx,  99  N.  borers  able  and  wiUing  to  do  the  work  re- 

Y.  377,  52  Am.  Rep.  34,  2  N.  E.  29;  Frorer  quired  does  not  excuse  a  violation  of  the 

V.  People,  141  Ul.  171,  16  hJRJL  402,  31  law. 

^J^  8S9  V.  8. 


1915. 


HEIM  ▼.  McCALL. 


180-189 


People  ex  rel.  Williama  Engineering  ft 
Contracting  Co.  t.  Mets,  103  N.  Y.  159,  24 
L.RJL(NJS.)  201,  86  N.  E.  1070. 

The  provisions  of  the  labor  law  are  ap- 
plicable to  the  work  of  building  subways  for 
the  Rapid  Transit  system  in  the  city  of 
New  York. 

Blank  ▼.  Kearny,  44  App.  Diy.  502,  61 
N.  Y.  Supp.  79;  SUte  v.  Butler,  178  Mo. 
317,  77  S.  W.  560. 

After  slating  the  ease  as  above,  Mr. 
Justice  McKcnna  delivered  the  opinion  of 
the  court: 

There  seems  to  have  been  no  question 
raised  aa  to  the  right  of  Heim  to  maintain 
the  suit,  although  he  ia  not  one  of  the  con- 
tactors nor  a  laborer  of*  the  excluded  na- 
ticmality  or  citizenship.  The  appellate  divi- 
sion felt  that  there  might  be  objection  to  the 
ri^t,  under  the  holding  of  a  [187]  cited 
caae.  The  court  of  appeals,  however,  made 
no  comment,  and  we  must— certainly  may- 
assume  that  Heim  had  a  right  of  suit;  and, 
so  assuming,  we  pass  to  the  merits. 

The  supreme  court  put  its  decision  upon 
the  power  of  the  state  "to  provide  what  la- 
borers shall  be  employed  upon  public  works," 
and  that  "the  state  has  the  same  right  in 
conducting  its  business  that  an  individual 
has,"  and  had,  therefore,  "a  perfect  right  to 
enact  §  14  of  the  labor  law,  and  it  does  not 
violate  any  rights  of  an  alien  under  existing 
treaties." 

The  appellate  division  of  the  court,  how- 
ever, was  of  opinion  that  the  law  could  not 
be  sustained  upon  such  consideration,  and 
saw  in  it  such  flagrant  discrimination  aa  to 
be  offensive  to  the  14th  Amendment  to  the 
Constitution  of  the  United  States;  and,  so 
concluding,  the  court  considered  it  unneces- 
sary to  discuss  the  effect  of  treaties. 

The  court  also  passed,  without  absolute 
decision,  the  question  whether  the  labor  law 
applies  to  the  work  of  building  subways  for 
the  Rapid  Transit  in  the  city  of  New  York. 
It  was,  however,  stated  in  the  opinion  of 
the  court  that,  in  view  of  the  language  in  a 
eited  case,  there  was  "much  ground  for  say- 
ing that  even  if  the  state  could  lawfully  im- 
pose the  test  of  citizenship  upon  employees 
ol  its  own  contractors,  and  the  contractors 
with  the  city  engaged  in  what  is  properly 
state  work,  it  has  no  more  power  to  impose 
such  test  upon  persons  employed  in  build- 
ing a  subway  for  the  city  than  it  would  have 
if  the  subways  were  being  constructed  by  a 
private  corporatjpn  or  individual."  [165 
App.  Div.  460,  150  N.  Y.  Supp.  933.] 
Two  members  of  the  court  were  clear 
that  the  state  had  no  such  power,  and  con- 
curred besides  with  the  majority  in  holding 
that  the  labor  law  was  "a  violation  of  both 
the  Federal  and  state  Constitutions." 
•0  L.  ed. 


The  oourt  of  appeals  reversed  the  action 
of  the  appellate  division. 

[188]  The  basic  principle  of  the  decision 
of  the  oourt  of  appeals  was  that  the  state  ia 
a  recognized  unit,  and  those  who  are  not 
citizens  of  it  are  not  members  of  it.  Thus 
recognized  it  aa  a  body  corporate^  and,  "like 
any  other  body  corporate,  i^  may  enter  into 
contracts  and  hold  and  dispose  of  property. 
In  doing  this,  it  acts  through  agencies  of 
government.  These  agencies,  when  contract- 
ing for  the  state,  or  expending  the  state's 
moneys,  are  trustees  for  the  .people  of  the 
sUte  (lUinoU  v.  Illinois  C.  R.  Co.  146  U.  S. 
387,  36  L.  ed.  1018,  13  Sup.  Ct.  R^.  110). 
It  is  the  people,  •.  e.,  the  members  of  the 
state,  who  are  contracting  or  expending 
their  own  moneys  through  agencies  of  their 
own  creation."  [People  v.  Crane,  214  N.  Y. 
160,  L.ILA.191&D,  550,  108  N.  £.  427,  Ann. 
Cas.  1915B,  1254.]  And  it  was  hence  decid- 
ed that  in  the  control  of  such  agencies 
and  the  expenditure  of  such  moneys  it 
could  prefer  its  own  citizens  to  aliens 
without  incurring  the  condenmation  of 
the  national  or  the  state  Constitution. 
"The  statute  is  nothing  more,"  said  Chief 
Judge  Bartlett,  concurring  in  the  judgment 
of  the  court,  "in  effect  than  a  resolve  by  an 
employer  as  to  the  character  of  his  emplqy- 


» 


ees. 

Notwithstanding  the  simplicity  of  the  de- 
termining principle  pronounced  by  the  court 
of  appeals,  its  decision  is  attacked  in  many 
and  voluminous  briefs. 

The  fundamental  proposition  of  plaintiff 
in  error  Heim  is  that,  assuming  that  S  1^ 
applies  to  the  subway  construction  con- 
tracts in  question,  it  (the  law)  contravenes 
the  provisions  of  the  Constitution  of  the 
United  States  (a)  in  that  it  violates  the  cor- 
porate rights  of  the  city  and  the  rights  of 
its  residents  and  taxpayers,  (b)  the  rights 
of  the  various  subway  contractors  with  the 
city,  (c)  the  rights  of  aliens  and  citizens  of 
other  states  resident  in  New  York,  and  (d) 
it  is  in  violation  of  treaty  rights. 

Plaintiffs  in  error  Cr  an  ford  Company  and 
Flinn-CRourke  Company  were  made  defend- 
ants upon  their  motion  at  the  argument  for 
injunction.  In  the  appellate  division  they, 
their  counsel  say,  "neither  assenting  to  nor 
denying  the  special  allegations,  doubtless 
urged  by  complainant's  [180]  counsel,  •  •  • 
urged  the  single  ground  of  the  unconstitu- 
tionality of  the  law  and  its  violation  of 
treaties."  And  these  ground  are  again 
urged. 

To  sustain  the  charge  of  unconstitution- 
ality the  14th  Amendment  is  adduced  and 
the  specification  is  that  the  law  abridges  the 
privileges  and  immunities  of  the  contractors 
and  those  of  their  alien  employees  in  depriv- 
ing them  of  their  right  ol  contracting  for 


180-191 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Teem, 


labor,  and  that  the  state  of  New  York,  by 
enacting  and  enforcing  the  law,  deprives 
employers  and  employees  of  liberty  and 
property  without  due  process  of  law,  and 
denies  to  both  the  equal  protection  of  the 
law. 

The  treaty  that  it  is  urged  to  be  violated 
is  that  with  Italy,  which,  it  is  contended, 
''put  aliens  within  the  state  of  New  York 
upon  an  equality  with  citizens  of  the  state 
with  respect  to  the  right  to  labor  upon  pub- 
lie  works;"  and  that  Congress  has  forti- 
fied the  treaty  by  §  1977  of  the  Revised 
SUtutes  (Comp.  Stat.  1013,  %  3025),— a 
part  of  the  civil  rights  legislation. 

The  application  of  the  law  to  the  subway 
contracts,  and  whatever  its  effect  and  to 
what  extent  it  affects  the  corporate  rights 
of  the  city  or  of  the  subway  contractorSi 
are  local  questions  ( Stewart  v.  Kansas  City, 
decided  November  1,  1016  [239  U.  S.  14, 
ante,  120,  36  Sup.  Ct.  Rep.  15] ),  and  have 
in  effect  been  decided  adversely  to  plaintiffs 
in  error  by  the  court  of  appeals.  The  prin- 
ciple of  its  decision  was,  as  we  have  seen, 
that  the  law  expressed  a  condition  to  be 
observed  in  the  construction  of  public 
works;  and  this  necessarily  involved  the 
application  of  §  14  to  subway  construction 
and  the  subordinate  relation  in  which  the 
city  stood  to  the  state.  Therefore,  the  con- 
tention of  plaintiffs  in  error  that  the  rapid 
transit  lines  have  given  the  city  rights  su- 
perior to  the  control  of  the  state,  so  far  as 
the  law  in  question  is  concerned,  has  met 
with  adverse  decision.  Whatever  of  local 
law  or  considerations  are  involved  in  the 
decision  we  are  bound  by;  whatever  of  de- 
pendence the  decision  has  in  the  general 
power  of  a  [100]  state  over  its  municipali- 
ties has  support  in  many  cases.  We  have 
recently  decided  the  power  exists,  and  we 
may  be  excused  from  further  discussion  of 
it.    Stewart  t.  Kansas  City,  supra. 

With  the  rejection  of  the  asserted  rights 
of  the  city  must  go  the  asserted  rights  of 
residents  and  taxpayers  therein  and  the 
rights  of  subway  contractors,  so  far  as  they 
depend  upon  the  asserted  freedom  of  the  city 
from  the  control  of  the  state. 

The  claim  of  a  right  in  the  city  of  such 
freedom  is  peculiar.  The  state  created  a 
scheme  of  rapid  transit,  constituted  officers 
and  invested  them  with  powers  to  execute 
the  scheme,  yet,  the  contention  is  that 
scheme,  officers,  and  powers  have  become  in 
some  way  in  their  exercise  and  effect  supe- 
rior to  the  state  law;  or,  according  to  the 
explicit  contention  (we  say  explicit  conten- 
tion, but  it  is  rather  a  conclusion  from  an 
elaborate  argument  and  much  citation  of 
cases),  that  the  city's  action  in  r^ard  to 
the  subway  ia  proprietary  in  character,  and, 
being  such,  the  city  can  assert  rights  against 

sie 


the  state,  and  that  individual  rights  have 
accrued  to  residents  of  the  city  of  which 
the  city  is  the  trustee,  and  which  "are  to  in- 
terwoven  and  bound  up  with  the  rapid  tran- 
sit  system  as  to  be  'beyond  the  control  of  tha 
state.'"  Counsel  have  not  given  us  a  sure 
test  of  when  action  by  a  city  is  government- 
al and  when  proprietary.  We  need  not  at- 
tempt a  characterization.  If  it  be  granted 
that  the  city  acted  in  the  present  ease  in  a 
proprietary  character  and  has  secured  pro- 
prietary rights,  to  what  confusion  are  we 
brought !  A  taxpayer  of  the  city,  invoking 
the  rights  of  the  city,  asserts  against  the 
control  by  the  state  of  the  proprietary  ac- 
tion of  the  city  the  protection  of  the  14th 
Amendment,  and  then  against  the  proprie- 
tary action  of  th^  city  that  Amendment  is 
urged  in  favor  of  the  contractors  with  the 
city,  and  their  exemption  from  the  perform- 
ance of  their  contracts  declared.  There 
seems  to  be  a  jumble  of  rights.  [101]  If 
the  city  is  not  an  agent  of  the  state  (it  la 
contended  the  city  is  not),  but  a  private 
proprietor  (it  is  contended  the  city  is),  it 
would  seem  as  if  it  has  the  rights  and  pow- 
ers of  such  a  proprietor,  and,  as  such,  may 
make  what  contracts  please  it,  including  or 
excluding  alien  laborers. 

But  upon  these  suppositions  we  need  not 
dwell.  It  is  clear  it  is  with  the  state  law 
and  the  city's  execution  of  it  as  agent  of  the 
state  that  we  must  deal,  and  only  on  the 
assumption  that  the  state  law  has  been  held 
to  apply  by  the  court  of  appeals,  and,  by  a 
consideration  of  the  power  to  enact  it,  de- 
termine the  contentions  of  all  of  the  plain- 
tiffs in  error. 

The  contentions  of  plaintiffs  in  error  un- 
der the  Constitution  of  the  United  States 
and  the  arguments  advanced  to  support 
them  were  at  one  time  formidable  in  dis- 
cussion and  decision.  We  can  now  answer 
them  by  authority.  They  were  considered 
in  Atkin  v.  Kansas,  101  U.  S.  207,  48  L. 
ed.  148,  24  Sup.  Ct.  Rep.' 124.  It  was  there 
declared,  and  it  was  the  principle  of  deci- 
sion, that  "it  belongs  to  the  state,  as  the 
guardian  and  trustee  for  its  people,  and 
having  control  of  its  affairs,  to  prescribe  the 
conditions  upon  which  it  will  permit  publie 
work  to  be  done  on  its  behalf,  or  on  behalf 
of  its  municipalities."  And  it  was  said: 
"No  court  has  authority  to  review  its  ac- 
tion in  that  respect.  Regulations  on  this 
subject  suggest  only  considerations  of  pub- 
lic policy.  And  with  such  considerations 
the  courts  have  no  concern." 

This  was  the  principle  declared  and  ap- 
plied by  the  court  of  appeals  in  the  deci- 
sion of  the  present  case.  Does  the  instance 
of  the  case  justify  the  application  of  the 
principle  T  In  Atkin  v.  Kansas  the  law 
attacked  and  sustained  prescribed  the  hours 

289  V.  8. 


1915.                                                   HEIM  ▼.  MoCALL.                                              191-194 

(8)  which  should  constitute  a  day's  work  which  are  based  on  the  14th  Amendment, 

for  thoae  employed  by  or  on  behalf  of  the  cannot  be  sustained. 

itate,  or  by  or  on  behalf  of  any  of  its  sub-  Are  plaintiffs  in  error  any  better  off  under 
diyisiona.  The  14th  Amendment  was  assert-  the  treaty  provision  which  they  invoke  in 
ed  against  the  law ;  indeed,  there  is  not  a  their  bill  T  The  treaty  with  Italy  is  the  one 
ootttention  made  in  this  case  that  was  not  especially  applicable,  for  the  aliens  em- 
made  in  that.  Immunity  of  municipal  cor-  ployed  are  subjects  of  the  King  of  Italy. 
porations  from  legislative  [102]  inter fer-  By  that  treaty  (1871)  it  is  provided : 
ence  in  their  property  and  private  contracts  "The  citizens  of  each  of  the  high  con- 
was  contended  for  there  (as  here) ;  also  that  tracting  parties  shall  have  liberty  to  travel 
employees  of  contractors  were  not  employ-  in  the  states  and  territories  of  the  other,  to 
ees  of  cities.  It  was  contended  there  (as  carry  on  trade,  wholesale  and  retail,  to 
here)  that  the  capacity  in  which  the  city  hire  and  occupy  houses  and  warehouses, 
acted,  whether  public  or  private,  was  a  ques-  to  employ  agents  of  their  choice,  and  gen- 
ti<m  of  general  law  not  dependent  upon  erally  to  do  anything  incident  to,  or  neces- 
local  considerations  or  statutes,  and  that  sary  for  trade,  upon  the  same  terms  as  the 
this  court  was  not  bound  by  the  decision  natives  of  the  country,  submitting  them- 
of  the  state  court.  And  there  (as  here)  selves  to  the  laws  there  established.  The 
was  asserted  a  right  to  contest  the  law,  citizens  of  each  of  the  high  contracting 
though  the  contracts  were  made  subsequent  parties  shall  receive,  in  the  states  and  ter- 
to  and  apparently  subject  to  it,  upon  the  ritories  of  the  other,  the  most  constant  pro- 
ground  that  they  were  entered  into  under  tection  and  security  for  their  persons  and 
the  belief  that  the  law  was  void.  Finally  property,  and  shall  enjoy  in  this  respect  the 
the  ultimate  contention  there  was  (as  it  is  same  rights  and  privileges  as  are,  or  shall 
here)  that  the  liberty  of  contract  assured  be,  granted  to  the  natives,  on  their  submit- 
by  the  14th  Amendment  was  infringed  by  ting  themselves  to  the  conditions  imposed 
the  law.  In  all  particulars  except  one  the  upon  the  natives."  [17  Stat,  at  L.  846.] 
ease  was  the  prototype  of  this.  There  There  were  slight  modifications  of  these 
the  hours  of  labor  were  prescribed;  here  the  provisions  in  the  treaty  of  1913,  as  follows: 
kbd  of  laborers  to  be  employed.  The  one  is  That  "the  citizens  of  each  of  the  high  con- 
is  much  of  the  essence  of  the  right  regulated  tracting  parties  shall  receive,  in  the  states 
is  the  other,  that  is,  the  same  elements  are  ^nd  territories  of  the  other,  the  most  con- 
in  both  cases, — ^the  right  of  the  individual  stant  security  and  protection  for  their  per- 
employer  and  employee  to  contract  as  they  sons  and  property  and  for  their  rights 
ihall  see  fit;  the  relation  of  the  sUte  to  the  •  •  •"  [38  Stat,  at  L.  1670.] 
matter  regulated;  that  is,  the  public  charac-  Construing  the  provision  of  1871,  the  court 
ter  of  the  work.  of  appeals  decided  that  it  "does  not  limit 
The  power  of  regulation  was  decided  to  ex-  the  power  of  the  state,  as  a  proprietor,  to 
ist  whether  a  state  undertook  a  public  work  control  the  construction  of  its  own  works 
itself  or  whether  it  "invested  one  of  its  gov-  And  the  distribution  of  its  own  moneys." 
ernmental  agencies  with  power  to  care"  for  The  conclusion  [104]  is  inevitable,  we 
the  work,  which,  it  was  said,  "whether  done  think,  from  the  principles  we  have  an- 
by  the  state  directly  or  by  one  of  its  in-  nounced.  We  need  not  follow  counsel  in  dis- 
•trumentalities,"  was  "of  a  public,  not  pri-  sertation  upon  the  treaty-making  power  or 
vtte,  character."  And,  being  of  public  char-  the  obligations  of  treaties  when  made.  The 
tcter,  it  (the  law — ^the  Kansas  statute)  did  present  case  is  concerned  with  construction, 
not  "infringe  the  liberty  of  anyone."  The  i^ot  power ;  and  we  have  precedents  to  guide 
declaration  was  emphasized.  "It  cannot  be  construction.  The  treaty  with  Italy  was 
deemed,"  it  was  said,  "a  part  of  the  liberty  considered  in  Patsone  v.  Pennsylvania,  232 
of  any  contractor  that  he  be  allowed  to  do  ^'  ^'  ^^^'  ^^^»  ^^  ^-  ^^'  ^^^'  ^^*»  ^^  ®^P- 
public  work  in  any  mode  he  may  choose  to  ^\  Rep.  281,  and  a  convention  with  Switz- 
wiopt,  without  regard  to  the  wishes  of  the  ^'^^"^  <*"  in  the  present  case)  which 
^.4^.M  A^A  ^u«J»-^i  'i.  -J  /  was  supposed  to  become  a  part  of  it. 
rtate."  And  obversely  t  was  said  (as  we  j^  ^^Z\d  that  a  law  of  Pennsylvania 
have  already  quoted):  "On  the  contrary.  ,t  ^^^ing  it  unlawful  for  unnaturalized 
belongs  to  the  state,  as  the  guaydian  of  its  foreign-born  residents  to  kill  game,  and 
people,  and  [103]  having  control  of  iU  af-  to  that  end  making  the  possession  of  shot- 
ftirs,  to  prescribe  the  conditions  [italics  guns  and  rifles  unlawful,  did  not  violate  the 
ours]  upon  which  it  will  permit  public  work  treaty.  Adopting  the  declaration  of  the 
to  be  done  on  its  behalf,  or  on  behalf  of  its  court  below,  it  was  said  "that  the  equality 
municipalities."  See  also  Ellis  v.  United  of  rights  that  the  treaty  assures  is  equality 
States,  206  U.  S.  246,  51  L.  ed.  1047,  27  only  in  respect  of  protection  and  security 
Sup.  Ct.  Rep.  600,  11  Ann.  Cas.  580.  The  for  persons  and  property."  And  the  ruling 
eontentions  of  plaintiffs  in  error«  therefor^  was  given  point  by  a  citation  ol  the  power 
•0  li.  ed.  117 


194,  195 


8UFKBME  COURT  OF  THE  UNITED  STATES. 


Oor. 


of  the  state  over  its  wild  game,  which  might 
be  preserred  for  its  own  citizens.  In  other 
words,  the  ruling  was  given  point  by  the 
special  power  of  the  state  orer  the  subject- 
matter, — a  power  which  exists  in  the  case 
at  bar,  as  we  have  seen. 

From  these  premises  we  conclude  that  the 
labor  law  of  New  York  and  its  threatened 
enforcement  do  not  violate  the  14th  Amend- 
ment or  the  rights  of  plaintiffs  in  error 
thereunder,  nor  under  the  provisions  of  the 
treaty  with  Italy. 

Judgment  affirmed. 


[106]  CLARENCE  A.  CRANE,  Plff.  in 

Err., 

V. 

PEOPLE  OF  THE  STATE  OF  NEW  YORK. 

(See  S.  C.  Reporter's  ed.  195-198.) 

Oonstitutional  law  —  equal  protection 
of  the  laws  —  olassittcation  —  dia- 
orimination  against  aliens. 

The    discrimination    made    between 

aliens  and  citizens  by  the  provisions  of  N. 

Y.  Consol.  Laws,  chap.  31,  §  14,  making  it 

a  misdemeanor  to  employ  aliens  on  public 

works,  does  not  offend  against  U.  8.  Const., 

14th  Amend.,  as  violating  the  principle  oi 

classification. 

[For  other  cases,  see  Constltotional  Law,  218- 
288,  in  Digest  Sup.   Ct   1908.] 

[No.  388.] 

Argued  October  12,  1915.    Decided  Novem- 
ber 29,  1916. 

IN  ERROR  to  the  Court  of  Special  Ses- 
sions, First  District,  of  the  City  of  New 
York  and  State  of  New  York,  to  review  a 
judgment  of  conviction  for  a  violation  of 
the  anti-alien  labor  law,  entered  pursuant 
to  the  mandate  of  the  Court  of  Appeals  oi 
that  state,  which  reversed  a  judment  of  the 
Appellate  Division  of  the  Supreme  Court, 
First  Department,  which  had  in  turn  re- 
versed the  conviction  in  the  Court  of  Spe- 
cial Sessions.    Affirmed. 

See  same  case  below,  in  Appellate  Divi- 
sion, 1G5  App.  Div.  449,  150  N.  Y.  Supp. 
933;  in  Court  of  Appeals,  214  N.  Y.  154, 


L.R.A.1916D,  550,  108  N.  E.  427.  Ann.  Cte. 
191 5B,  1254. 
The  facts  are  stated  in  the  opinion. 

Mr.  Thomas  F.  Oonwaj  argued  tka 
cause,  and,  with  Mr.  James  F.  McKinM^ 
filed  a  brief  for  plaintiff  in  error. 

For  his  contentions,  see  his  brief  aa  re- 
ported in  Heim  v.  McCall,  ante,  206. 

Mr.  Robert  8.  Johnstone  argued  tha 
cause,  and,  with  Messrs.  Charles  Albert 
Perkins  and  Qeorge  Z.  Medalie,  filed  a  briaf 
for  defendant  in  error: 

The  fundamental  mistake  of  the  plaintiff 
in  error,  and  of  the  learned  judges  below 
who  deemed  the  statute  unconstitutional,  it 
that  they,  while  recognizing  the  truth  of 
the  general  proposition  that  the  right  to 
labor  at  a  lawful  trade  or  calling  is  a  right 
of  liberty  and  property  ( Coppage  v.  Ksnsaa^ 
236  U.  8.  1,  59  L.  ed.  441,  L.RA.1915C,  960, 
35  8up.  Ct.  Rep.  240;  Smith  v.  Texas,  238 
U.  8.  630,  636,  58  L.  ed.  1129,  1132,  L.RJL 
1915D,  677,  34  Sup.  Ct.  Rep.  681,  Ann.  Caa. 
1915D,  420),  overlooked  the  proposition, 
equally  true,  that  no  one  is  entitled  of  abso- 
lute right  and  as  a  part  of  his  liberty  or 
property  to  work  for  another  against  thai 
other's  wishes  (Coppage  v.  Kansas,  236  U. 
8.  1,  10,  59  L.  ed.  441,  444,  L.R.A1915C, 
960,  85  Sup.  Ct.  Rep.  240) ;  or  to  work  or 
perform  labor  for  the  state  (Atkin  v.  Kan- 
sas, 191  U.  S.  207,  223,  48  L.  ed.  148,  158» 
24  Sup.  Ct.  Rep.  124) ;  that  liberty  of  con- 
tract includes  both  parties  to  it  (Lochner  t. 
New  York,  198  U!  S.  45,  56,  49  L.  ed.  987, 
941,  26  Sup.  Ct.  Rep.  539,  8  Ann.  Caa. 
1133). 

The  distinction  between  the  corporate  or 
contractual  power  of  the  state  and  the  po- 
lice power,  and,  indeed,  the  transition  from 
the  one  to  the  other,  may  be  clearly  seen 
in  noting  the  ascending  measure  of  control 
from  (1)  that  which  may  be  exercised  over 
individuals  and  corporations  with  respect 
to  matters  wholly  private  (Lochner  v.  New 
York,  198  U.  8.  45,  49  L.  ed.  937,  25  Sup. 
Ct.  Rep.  539,  3  Ann.  Cas.  1133;  Williama 
V.  Arkansas,  217  U.  8.  79,  54  L.  ed.  678, 
30  Sup.  Ct.  Rep.  493, 18  Ann.  Caa.  866;  Cop- 
page V.  Kansas,  236  U.  8.  1,  59  L.  ed.  441, 
L.R.A.1915C,  960,  35  Sup.  Ct.  Rep.  240  to 
(2)  that  which  may  be  exercised  with  ra- 
speot  to  matters  semipublic  or  affected  with 


Note. — As  to  constitutional  equality  of 
privileges,  immunities,  and  protection,  gen- 
erally— see  note  to  Louisville  Safety  Vault 
k  T.  Co.  V.  Louisville  ft  N.  K  Co.  14  LJEI.A. 
579. 

As  to  the  validity  of  class  l«ris1ation, 
generally— see  notes  to  State  v.  Goodwill, 
6  L.RA.  621;  and  State  v.  Loomis,  21  L.R.A. 
789. 

On  treaty  guaranties  to  aliens — see  note 
to  Gandolfo  ▼.  Hartman,  16  UR.A.  277. 

OeaermHj  as  to  statutory  restrictions  on 


contracts  between  master  and  servant — sea 
notes  to  Coin.  v.  Perry,  14  L.R.A.  325 ;  Ram- 
sey V.  People,  17  LJIA.  853;  State  T. 
Loomis,  21  LJELA.  789;  and  Ritchie  v.  Peo- 
ple, 29  L.R.A.  79. 

On  power  of  state,  under  14th  Amend- 
ment to  the  United  States  Constitution,  to 
deny  to  aliens  the  right  to  engage  in  s 
lawful  occupation — see  notes  to  Com.  t. 
Hana,  11  L.R.A.(NJ3.)  799;  People  v.  Craaflb 
LJLA.1916D,  569. 

88t  U.  8. 


ms. 


CRANE  T.  N£W  YORK. 


A  public  intereit  (Munn  t.  lUinoii,  94  U. 
&  113,  24  Lb  ed.  77;  Budd  t.  New  York,  143 
U.  a  617,  96  L.  ed.  247,  4  Inters.  Com.  Rep. 
45,  12  Sup.  Ct.  Rep.  468,  affirming  117 
K.  Y.  1,  6  L.R.A.  659,  15  Am.  St.  Rep. 
4M,  22  N.  £.  670;  Brass  y.  North  DakoU 
153  U.  8.  391,  38  L.  ed.  757,  4  Inters.  Com. 
Rep.  670,  14  Sup.  Ct.  Rep.  867 ;  Noble  State 
Bank  ▼.  HaskeU,  219  U.  S.  104,  65  L.  ed. 
112,  32  L.R.A.(N.a)  1062,  31  Sup.  Ct  Rep. 
186,  Ann.  Cas.  1912A,  487;  German  Alli- 
tnce  Ina.  Co.  t.  Kansas,  233  U.  S.  389, 
58  L.  ed.  1011,  L.RJL1916C,  1189,  34  Sup. 
Ct  Rep.  612),  to  (3)  that  which  may  be 
ocrcised  with  respect  to  matters  wholly 
poblio — ^when  the  power  becomes  absolute, 
tnd  examples  of  which  are  seen  in  the  con- 
trol by  the  state  of  its  municipal  corpora- 
tions in  all  their  public  undertakings  and 
tffairs  (WUUams  t.  Eggleston,  170  U.  S. 
304,  42  L.  ed.  1047,  18  Sup  Ct.  Rep.  617; 
Atkin  V.  Kansas,  191  U.  S.  207,  48  L.  ed. 
148,  24  Sup.  Ct.  Rep.  124 ;  Hunter  ▼.  Pitts- 
(mrgh,  207  U.  S.  161,  62  L.  ed.  151,  28  Sup. 
Ct  Rep.  40;  People  ex  reL  Williams  Engi- 
neering &  Contracting  Co.  y.  Mets,  193  N.  Y. 
148,  24  LJLA.(N.S.)  201,  85  N.  £.  1070; 
Ryan  t.  New  York,  177  N.  Y.  271,  69  N. 
£.  599). 

This  absolute  power  arises  from  the  pro- 
prietary relationship  of  the  state  to  the 
Batters  in  question.  A  question  of  power 
becomes  one  of  policy. 

Atkin  T.  Kansas,  191  U.  S.  207,  222,  48  L. 
ci  148,  157,  24  Sup.  Ct.  Rep.  124;  German 
Alliance  Ins.  Co.  y.  Lewis,  233  U.  S.  389, 
414, 58  L.  ed.  1011, 1022,  LJtJL.1915C,  1189, 
34  Sup.  Ct.  Rep.  612;  Chicago,  B.  &  Q.  R. 
Co.  T.  McGuire,  219  U.  S.  549,  569,  55  L. 
ei  328,  339,  31  Sup.  Ct.  Rep.  259. 

One  of  the  basic  theories  upon  which  the 
constitutionality  of  this  law  can  be  sus- 
tained is  fundamentally  the  same  as  that 
upon  which  a  law  restraining  the  right  of 
A  private  individual  to  employ  or  refuse 
to  employ  whom  he  will  in  his  private  ca- 
pacity might  be  deemed  invalid. 

Coppage  V.  Kansas,  236  U.  S.  1,  59  L. 
ed.  441,  L.RJLa915C,  960,  36  Sup.  Ct  Rep. 
240. 

The  head  of  a  large  business  enterprise 
nay  employ  or  refuse  to  employ  whomso- 
ever he  will,  and  for  any  reason  that  to  him 
ieems  sufficient. 

Coppage  V.  Kansas,  236  U.  S.  1,  10,  24,  59 
U  ed.  441,  444,  450,  L.R.A.1915C,  960,  36 
Sup.  Ct.  Rep.  240;  Adair  v.  United  SUtes, 
208  U.  S.  161,  52  L.  ed.  436,  28  Sup.  Ct. 
Hep.  277,  13  Ann.  Cas.  764 ;  People  v.  Mar- 
cus. 185  N.  Y.  257,  7  LjajL(N.S.)  282,  113 
Am.  St.  Rep.  902,  77  N.  E.  1073,  7  Ann.  Cas. 
118;  Jacobs  V.  Cohen,  183  N.  Y.  207, 2  L.R.A. 
(K.S.)  292,  111  Am.  St.  Rep.  780,  76  N.  B. 
5,  5  Ann.  Caa.  280;  National  Ptotectiya 
•0  L.  ed. 


Asso  V.  CummiuK,  170  N.  Y.  315,  58  T«.K,A. 
135,  88  Am.  St.  Rep.  648,  63  N.  E.  369. 

Has  not  the  state  for  itself  and  for  each 
of  its  separate  governmental  agendas  the 
right  to  declare  tiiat,  with  respect  to  works 
of  a  public  nature  done  by  contract,  the  per- 
son contracting  to  do  that  work  shall  only 
employ  such  persons  as  the  state  may  direct, 
and  to  place  a  restriction,  if  it  sees  fit  to 
do  so^  upon  the  classes  of  persons  who  may 
be  employed  by  the  contractor? 

Atkin  V.  Kansaa,  191  U.  S.  207,  48  L.  ed. 
148,  24  Sup.  Ct.  Rep.  124;  Ellis  v.  United 
SUtes,  206  U.  8.  246,  61  L.  ed.  1047,  27 
Sup.  Ct.  Rep.  600, 11  Ann.  Cas.  589;  United 
States  T.  Martin,  94  U.  S.  400,  24  L.  ed. 
128;  Ryan  t.  New  York,  177  N.  Y.  271, 
69  N.  E.  599;  People  v.  Orange  County  Road 
Constr.  Co.  175  N.  Y.  90,  65  LJLA.  33,  67 
N.  £.  129;  People  ex  reL  Cossey  v.  Grout, 
179  N.  T.  417,  72  N.  £.  464,  1  Ann.  Cas. 
39;  People  ex  rel.  Williams  Engineering  & 
Contracting  Co.  t.  Metz,  193  N.  Y.  163, 
24  L.R.A.(N.S.)  201,  85  N.  £.  1070;  People 
V.  I.  M.  Luddington  Sons,  74  Misc.  363,  131 
N.  Y.  Supp.  550;  Coppage  v.  Kansas,  236 
U.  S.  1,  10,  59  L.  ed.  441,  444,  L.RJL.1915C, 
900,  35  Sup.  Ct.  Rep.  240 ;  Adair  v.  United 
States,  208  U.  S.  161,  52  L.  ed.  436,  28 
Sup.  Ct.  Rep.  277,  13  Ann.  Cas.  764. 

The  individual  as  an  employer  of  labor 
and  the  state  as  an  employer  of  labor  stand 
on  the  same  footing. 

Ellis  v.  United  SUtes,  206  U.  S.  246,  61 
L.  ed.  1047,  27  Sup.  Ct.  Rep.  600,  11  Ann. 
Cas.  589;  People  v.  Orange  County  Road 
Constr.  Co.  175  N.  Y.  89,  65  L.RJL.  33,  67 
N.  E.  129;  United  SUtes  t.  Martin,  94 
U.  S.  400,  404,  24  L.  ed.  128,  129 ;  Clark  v. 
SUte^  142  N.  Y.  101,  36  N.  E.  817;  Ryan 
V.  New  York,  177  N.  Y.  271,  69  N.  E.  599; 
People  ex  rel.  Williams  Engineering  &  Con- 
tracting Co.  y.  MeU,  193  N.  Y.  148,  24 
L.RJL(N.S.)  201,  85  N.  E.  1070;  People  t. 
I.  M.  Luddington  Sons,  74  Misc.  363,  131  N. 
Y.  Supp.  550. 

The  sUU  may  dicUU  its  employment 
policy  respecting  public  works,  whether  con- 
structed by  the  sUte  itself,  iU  municipali- 
ties, or  contractora. 

Keefe  t.  People,  37  Colo.  317,  8  L.RJL. 
(N.S.)  131,  87  Pac  791;  SUU  v.  Living- 
ston ConcreU  Bldg.  &  Mfg.  Co.  34  Mont. 
670,  87  Pac.  980,  9  Ann.  Cas.  204;  Re 
Broad,  36  Wash.  449,  70  LJI.A.  1011,  78 
Pac.  1004,  2  Ann.  Cas.  212;  Re  Dalton,  61 
Kan.  257,  47  L.R.A.  380,  59  Pac.  336 ;  Atkin 
V.  Kansas,  191  U.  S.  207,  48  L.  ed.  148, 
24  Sup.  Ct.  Rep.  124;  Ryan  v.  New  York, 
177  N.  Y.  271,  69  N.  E.  599;  People  ex  rel. 
Cossey  v.  Grout,  179  N.  Y.  417,  72  N.  E. 
464, 1  Ann.  Caa.  39;  People  ex  rel.  Williams 
Engineering  A  Contracting  Co.  v.  MeU,  193 

^1% 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cot.  Temm, 


N.  T.  161,  24  LJLA.(N.S.)   201,  85  K.  E. 
1070. 

It  was  not  necessary,  so  far  as  this  case 
is  concerned,  that  the  provision  of  the  stat- 
ute, should  have  been  actually  incorporated 
into  or  set  forth  in  the  contract.  Tlie  par- 
ties to  the  contract  were  chargeable  with 
knowledge  of  its  provisions,  and,  if  they 
are  valid,  they  will  be  read  into  the  coatract 
by  operation  of  law. 

People  ex  reL  Rodgers  v.  Coler,  166  N. 
Y.  1,  52  L.RJL.  814,  82  Am.  St.  Rep.  605, 
50  N.  £.  716;  Medina  v.  Dingledine,  211  N. 
Y.  28,  104  N.  E.  1118. 

The  state,  we  submit,  had  an  undoubted 
right  to  refuse  employment  to  aliens  on  pub- 
lic works.  The  defendant  as  a  private  per- 
son, pursuing  his  private  concerns,  had  a 
iright  to  employ  aliens  to  work  for  him  if 
he  saw  fit  to  do  so;  and  in  that  right  the 
Constitution  protects  him.  But  if,  in  im- 
dertaking  to  do  public  work  for  the  city, 
the  state  (the  principal  and  master)  exact- 
ed as  a  condition  that  he  should  not  em- 
ploy aliens,  he  could  waive  any  general  con- 
stitutional right,  and  did  so  by  accepting 
the  service  or  privilege  knowing  the  con- 
ditions thereto  attached  by  the  statute. 

People  V.  Rosenheimer,  200  N.  Y.  115,  46 
L.RJL.(N.S.)  077,  102  N.  E.  530,  Ann.  Gas. 
1015A,  161;  Ex  parte  Kneedler,  243  Mo. 
632,  40  L.R^.(N.S.)  622,  147  S.  W.  983, 
Ann.  Cas.  19130,  023;  Bertholf  v.  O'Reilly, 
74  N.  Y.  517,  30  Am.  Rep.  323;  Ryan  v. 
New  York,  177  N.  Y.  279,  69  N.  E.  699; 
People  ex  rel.  McLaughlin  v.  Police  Comrs. 
174  N.  Y.  456,  95  Am.  St.  Rep.  596,  67  N. 
E.  78;  Atkin  v.  Kansas,  191  U.  S.  207,  48 
L.  ed.  148,  24  Sup.  Ct.  Rep.  124;  Crowley 
V.  Christensen,  137  U.  S.  86,  91,  34  L.  ed. 
620,  623,  11  Sup.  Ct.  Rep.  13;  People  ex 
rel.  Williams  Engineering  k  Contracting 
Co.  V.  Metz,  193  N.  Y.  148,  24  L.R.A.(N.S.) 
201,  85  N.  E.  1070;  Wilson  v.  United  States, 
221  U.  S.  361,  55  L.  ed.  771,  31  Sup.  Ct. 
Rep.  538,  Ann.  Cas.  1912D,  558. 

When  the  state  made  a  contract  it  did  not 
give  up  its  power  to  make  a  law, — its  sov- 
ereign^. It  could  make  a  breach  of  the 
contract — a  disobedience  of  its  mandate — 
criminal. 

Ellis  T.  United  States,  206  U.  S.  246,  255, 
256,  51  L.  ed.  1047,  1052,  1053,  27  Sup.  a. 
Rep.  600,  11  Ann.  Cas.  580;  United  States 
V.  Reynolds,  235  U.  S.  133,  150,  50  L.  ed. 
162,  169,  35  Sup.  Ct  Rep.  86;  Atkin  v. 
Kansas,  191  U.  S.  207,  48  L.  ed.  148,  24 
Sup.  Ct.  Rep.  124;  People  ex  rel.  Williams 
Engineering  k  Contracting  Co.  v.  Metz,  193 
N.  Y.  148,  24  L.ItA.(N.S.)  201,  85  N.  E. 
1070;  People  v.  Orange  County  Road  Constr. 
Co.  175  N.  Y.  84,  65  LJtJ^.  33,  67  N.  E. 
129. 

The  provision  prohibiting  the  employment 

sso 


of  aliens  on  public  works  is  a  valid  exer- 
cise of  the  police  power — and  this  even  if 
the  contractor  be  regarded  as  occupying  the 
position  of  a  private  person  as  related  to 
his  workmen,  with  respect  to  the  perform- 
ance of  the  work  in  question. 

Friebie  v.  United  States,  157  U.  S.  160, 
165,  39  L.  ed.  657,  658,  15  Sup.  Ct  Rep. 
586;  Allgeyer  v.  Louisiana,  165  U.  S.  578, 
591,  41  L.  ed.  832,  836,  17  Sup.  Ct.  Rep. 
427;  Williams  v.  Fears,  179  U.  S.  270,  274, 
45  L.  ed.  186,  188,  21  Sup.  Ct.  Rep.  128; 
Holden  v.  Hardy,  169  U.  8.  366,  42  L.  ed. 
780,  18  Sup.  Ct.  Rep.  383;  Muller  v.  Oregon, 
208  U.  S.  412,  421,  52  L.  ed.  551,  555,  28 
Sup.  Ct  Rep.  324,  13  Ann.  Cas.  957;  Mc- 
Lean V.  Arkansas,  211  U.  S.  539,  547,  53 
L.  ed.  315,  319,  29  Sup.  Ct.  Rep.  206; 
Chicago,  B.  &  Q.  R.  Co.  v.  McGuire,  210  U. 
S.  549,  566,  567,  55  L.  ed.  328,  338,  31  Sup. 
Ct  Rep.  259;  Erie  R.  Co.  v.  Williams,  233 
U.  S.  685,  699,  704,  58  L.  ed.  1155,  1160, 
1162,  51  L.R.A.(N.S.)  1097,  34  Sup.  Ct. 
Rep.  761;  Price  v.  Illinois,  238  U.  S.  446, 
453,  59  L.  ed.  1400,  1405,  35  Sup.  Ct  Rep. 
892;  Sligfa  v.  Kirkwood,  237  U.  S.  52,  59, 
59  L.  ed.  835,  837,  35  Sup.  Ct  Rep.  501; 
People  ex  rel.  Nechamcus  v.  Warden,  144 
N.  Y.  529,  27  L.RA.  718,  39  N.  E.  686; 
People  V.  Ewer,  141  N.  Y.  132,  25  L.R.A. 
794,  38  Am.  St  Rep.  788,  36  N.  E.  4; 
Bloomfield  v.  State,  86  Ohio  St.  253,  41 
L.R.A.(N.S.)  726,  99  N.  E.  309,  Ann.  Cas. 
1913D,  629;  Noble  SUte  Bank  v.  Haskell, 
219  U.  S.  104,  111,  55  L.  ed.  112,  116,  32 
L.RJ^.(N.S.)  1062,  31  Sup.  Ct.  Rep.  186, 
Ann.  Cas.  1912A,  487;  Williams  v.  Arkan- 
sas, 217  U.  S.  79,  88,  54  L.  ed.  673,  677,  30 
Sup.  Ct.  Rep.  493,  18  Ann.  Cas.  865;  Com. 
V.  Hana,  195  Mass.  262,  11  L.RJ^.(N.S.) 
799,  122  Am.  St  Rep.  251,  81  N.  E.  149,  11 
Ann.  Cas.  514;  Patsone  v.  Pennsylvania, 
232  U.  S.  138,  58  L.  ed.  539,  34  Sup.  Ct 
Rep.  281,  231  Pa.  46,  79  Atl.  928;  McCready 
V.  Virginia,  94  U.  S.  391,  24  L.  ed.  248; 
People  V.  Lowndes,  130  N.  Y.  462,  29  N. 
E.  751;  Com.  v.  Hilton,  174  Mass.  29,  45 
L.RA.  475,  54  N.  E.  362;  Blythe  v.  Hinck- 
ley, 180  U.  S.  333,  341,  45  L.  ed.  557,  562, 
21  Sup.  Ct.  Rep.  390;  Freund,  Pol.  Power, 
§  706;  4  Moore,  Int  Law  Dig.  §  541;  Drew 
V.  Rogers,  4  Cal.  Unrep.  369,  34  Pac.  1081; 
State  ex  rel.  Ferine  v.  Van  Beek.  87  Iowa, 
569,  19  L.RJL(N.S.)  622,  43  Am.  St  Rep. 
397,  54  N.  W.  525;  Opinion  of  Justices,  122 
Mass.  594;  Scott  v.  Strobach,  49  Ala.  477; 
Kohl  V.  Lehlback,  160  U.  S.  293,  40  L.  ed. 
432,  16  Sup.  Ct.  Rep.  304 ;  State  v.  Travel- 
ers' Ins.  Co.  70  Conn.  600,  66  Am.  St  Rep. 
138,  40  AtL  465;  Re  O'Neill,  90  N.  Y. 
584.  See  also  Com.  v.  Hana,  11  L.R.A. 
(N.S.)  709,  note;  Hudson  County  Water  Co. 
V.  McCarter,  209  U.  S.  349,  52  L.  ed.  828, 
28  Sup.  Ct  Rep.  529,  14  Ann.  Cas.  560. 

SS9  U.  8. 


1915. 


CRANE  T.  NEW  YORK. 


The  courts  must  assume  that  the  legis- 
liture  acts  according  to  its  judgment  for 
the  best  interests  of  the  state.  A  wrong 
istent  cannot  be  imputed  to  it  (Florida  C. 
4  P.  R.  Ck>.  y.  Reynolds,  183  U.  S.  471, 
480,  46  L.  ed.  283,  287»  22  Sup.  Ct.  Rep. 
176).  They  are  not  at  liberty  to  inquire 
iito  the  motives  of  the  legislature;  they 
csn  only  examine  into  its  power  under  the 
Constitution  (Ex  parte  McCardle,  7  Wall. 
606,  614,  19  L.  ed.  264,  265;  Cooley,  Const, 
lim.  7th  ed.  257).  They  have  nothing 
to  do  with  the  policy,  wisdom,  justice,  or 
fiimess  of  the  act;  those  questions  are 
for  the  consideration  of  those  to  whom  the 
itste  has  intrusted  its  legislative  power, 
sad  their  determination  of  them  is  not 
lobjeGi  to  review  or  criticism  by  this  court 
(Hunter  y.  Pittsburgh,  207  U.  8.  161,  176, 
^  L.  ed.  151,  159,  28  Sup.  Ct.  Rep.  40; 
United  States  ▼.  First  Nat.  Bank,  234  U. 
8.  245,  260,  58  L.  ed.  1298,  1304,  34  Sup. 
Ct  Rep.  846).  And  it  is  not  necessary 
that  the  legislature  should  declare  on  the 
face  of  a  statute  the  policy  or  purpose  for 
which  it  was  enacted. 

People  ▼.  West,  106  N.  Y.  293,  60  Am. 
Rep.  452,  12  N.  E.  610. 

On  the  same  principle  that  the  national 
government  may  exclude  aliens  for  the  ma- 
terial and  economic  protection  of  its  peo- 
ple, we  submit  the  states  may  bar  them 
from  onployment  on  their  public  works. 

4  Moore  Int.  Law  Dig.  §  561,  pp.  153- 
158;    1   Calvo,  4th   ed.   §   208;    Phillimore 
Int  Law,  2d  ed.  §  211;   2  Wheaton,  Int. 
Law,   chap.    1,    §    2;    Nishimura   Ekiu    v. 
United  States,   142  U.  S.  651,   659,   35  L. 
ed.  1146,  1149,  12  Sup.  Ct.  Rep.  336. 
There  is  no  invalid  classification. 
Mallinckrodt    Chemical    Works    v.    Mis- 
•ouri,  238   U.   S.   41,   56,   59   L.   ed.   1192, 
1198,  35  Sup.  Ct.  Rep.  671;    International 
Harvester  Co.  v.  Missouri,  234  U.  S.   199, 
214,  58  L.  ed.  1276,  1283,  52  L.RwA.(N.S.) 
525,   34   Sup.   Ct.   Rep.    859;    Williams  y. 
Arkansas,  217  U.  S.  79,  90,  54  L.  ed.  673, 
677,  30   Sup.   Ct.   Rep.   493,   18   Ann.   Cas. 
865;  Barrett  v.  Indiana,  229  U.  S.  26,  30, 
57  L.  ed.  1050,  1052,  33  Sup.  Ct.  Rep.  692; 
Louisville  &  N.  R.  Co.  y.  Melton,  218  U.  S. 
86,  55,  54  L.  ed.  921,  47  L.R.A.(N.S.)    84, 
80  Sup.  Ct.  Rep.  676;  Patsone  v.  Pennsyl- 
nnia,   232   U.   S.   138,   58   L.   ed.   530,   34 
8ap.  Ct.  Rep.  281. 

The  municipality  of  the  city  of  New 
York,  in  constructing  a  sewer,  under  legis- 
Istive  sanction,  is  engaged  in  a  public  work 
sr  improvement  in  which  it  acts  as  the 
sgent  of  the  state,  and  the  construction  of 
inch  work  by  the  municipality  is  under 
kgislative  or  state  control. 

Hushes   V.  Auburn,   161   N.  Y.   104,   46 
LRJ^.  636,  55  N.  E.  389,  7  Am.  Neg.  Rep.  i 
60  L.  ed. 


139;  Uppington  y.  New  York,  166  N.  Y. 
228,  53  LJLA.  550,  59  N.  E.  91,  9  Am. 
Neg.  Rep.  115;  Rs  Protestant  Episcopal 
Public  School,  46  N.  Y.  180;  People  ex  rel. 
Williams  Engineering  &  Contracting  Co. 
193  N.  Y.  148,  24  L.R.A.(N.S.)  201,  85 
N.  E.  1070;  Keefe  y.  People,  37  Colo.  317, 
8  L.RJ^.(N.S.)  131,  87  Pac.  791;  Seibert 
V.  Cavender,  3  Mo.  App.  421;  Paulsen  v. 
Portland,  149  U.  S.  40,  37  L.  ed.  641,  13 
Sup.  Ct.  Rep.  750;  Heim  v.  McCall,  165 
App.  Div.  449,  150  N.  Y.  Supp.  933,  214 
N.  Y.  629,  108  N.  E.  1095;  Re  Rapid  Tran- 
sit  R.  Comrs.  197  N.  Y.  97,  36  L.RJL.(N.S.) 
647,  90  N.  £.  456,  18  Ann.  Cas.  366;  Sun 
Printing  k  Pub.  Asso.  v.  New  York,  152 
N.  Y.  267,  37  L.R.A.  788,  46  N.  E.  499; 
Carpenter  v.  New  York,  115  App.  Div.  557, 
101  N.   Y.  Supp.  402. 

It  is  for  the  state  courts  to  decide  what 
shall  be  deemed  public  uses  in  that  state. 
It  is  likewise  for  them  to  decide  what  shall 
be  considered  public  works. 

Williams  v.  Eggleston,  170  U.  S.  304, 
310,  42  L.  ed.  1047,  1049,  18  Sup.  Ct.  Rep. 
617;  Forsyth  v.  Hammond,  166  U.  S.  506, 
519,  41  L.  ed.  1095,  1100,  17  Sup.  Ct.  Rep. 
665;  Claiborne  County  v.  Brooks,  111  U. 
S.  400,  410,  28  L.  ed.  470,  474,  4  Sup.  Ct. 
Rep.  489;  Detroit  y.  Osborne,  135  U.  S. 
492,  499,  34  L.  ed.  260,  262,  10  Sup.  Ct. 
Rep.  1012;  Old  Colony  Trust  Co.  v.  Omaha, 
230  U.  S.  100,  116,  67  L.  ed.  1410,  1416; 
33  Sup.  Ct.  Rep.  967;  Union  Lime  Co.  v. 
Chicago  &  N.  W.  R.  Co.  233  U.  S.  211,  218, 
219,  58  L.  ed.  924,  928,  34  Sup.  Ct.  Rep. 
522;  Hairston  v.  Danville  k  W.  R.  Co.  208 
U.  S.  598,  607,  52  L.  ed.  637,  641,  28  Sup. 
Ct.  Rep.  331,  13  Ann.  Cas.  1008. 

The    broad    classification    of    municipal 
functions  into  matters  governmental   {%.  e., 
sovereign)    in   the   strict  sense,   and   quasi 
private,    is    obviously    incomplete    for    all 
purposes.     It  is  fundamentally  and  chiefly 
of  value  only  in  the  determination  of  those 
questions  involving  the  relationship  of  the 
municipality  to  third  persons — the  civil  lia- 
bility of  the  city  to  third  persons  for  dam- 
ages caused  by  the  negligent  execution  of 
the  powers  or  functions.     For  that  limited 
purpose,  and  in  that  limited  sense,  the  broad 
classification   may   be   sufficiently   accurate 
(Wilcox  v.   Rochester,   190  N.  Y.   142,   17 
L.R.A.(N.S.)    741,  82  N.  E.  1119,  13  Ann. 
Cas.  759;  Missano  v.  New  York,  160  N.  Y. 
129,  54  N.  E.  744,  6  Am.  Neg.  Rep.  652; 
Maxmilian  v.  New  York,  62  N.  Y.  160,  20 
Am.  Rep.  468;  Lloyd  v.  New  York,  5  N.  Y. 
369,   55   Am.   Dec.   347;    Dill.   Mun.    Corp. 
5th  ed.  §  39).     But  it  is  of  little  or  no 
assistance    in    determining    questions    con- 
cerning   the    extent   of    legislative    control 
over   the   municipal   corporations    in    rela- 
tion to  matters  of  a  public  nature  or  af- 


8UPKBMB  COURT  OF  THE  UNITED  STATEa 


Cot.  TtaM, 


fected  by  a  public  interest,  such,  for  example, 
as  the  carrying  on  of  public  utilities,  the 
construction  of  public  works, — sewers, 
waterworks,  highways,  and  the  like, — ^which 
constitute  a  large  category  of  a  munic- 
ipality's affairs,  and  which  are  public  func- 
tions in  the  truest  sense,  though  perhaps 
occ^ionally  of  a  local  character.  These  are 
truly  governmental  functions, — functions  of 
government, — even  though  they  are  not 
strictly  of  a  sovereign  nature.  They  are 
public  works. 

Even  where,  for  some  purposes,  the 
municipality  may  be  considered  to  act  as  a 
legal  individual,  a  corporate  body,  in  the 
exercising  or  performance  of  the  function, 
the  function  itself  is  a  special  power  granted 
to  it  by  the  legislature. 

Missano  v.  New  York,  1«0  N.  Y.  129, 
54  N.  E.  744,  6  Am.  Neg.  Rep.  652;  Lloyd 
V.  New  York,  5  N.  Y.  360,  55  Am.  Dec. 
347;  Maxmilian  v.  New  York,  63  N.  Y. 
160,  20  Am.  Rep.  468;  Barnes  v.  District 
of  Ck)lumbia,  01  U.  S.  540,  644,  23  L.  ed. 
440,  441. 

A  great  mass  of  a  municipality's  func- 
tions and  powers  may  be  private  in  their 
execution  as  regards  third  parties,  but 
they  are  public  in  regard  to  the  state.  They 
are  public  matters,  authorized  by  tiie  leg- 
islature, and  subject  to  legislative  control. 
1  Dill.  Mun.  Ck>rp.  5th  ed.  p.  184;  Dar- 
lington V.  New  York,  31  N.  Y.  164,  88  Am. 
Dec.  248. 

As  respects  the  state,  the  erection  of  pub- 
lic works,  the  carrying  on  of  public  under- 
takings, are  wholly  public,  and  the  legis- 
lature (except  where  it  is  restrained  by 
special  constitutional  provision,  operating 
as  a  restriction  on  the  general  sovereign 
power  exercised  by  the  legislature)  has  over 
them  complete  and  transcendent  control. 
From  it  such  corporations  derive  their  being 
and  all  the  powers  they  possess.  It  made 
them  and  it  may  regulate  or  even  destroy 
them  at  its  uncontrolled  will.  As  against 
it  they  have  no  contract,  they  have  no 
vested  rights. 

People  V.  Morris,  13  \yend.  329;  Darling- 
ton y.  New  York,  supra;  Demarest  v.  New 
York,  74  N.  Y.  167;  MacMullen  t.  Middle- 
town,  187  N.  Y.  44,  11  L.ItA.(N.S.)  391, 
79  N.  E.  863;  New  Orleans  v.  New  Orleans 
Waterworks  Co.  142  U.  S.  79,  35  L.  ed. 
943,  12  Sup.  Ct  Rep.  142;  Laramie  County 
V.  Albany  County,  92  U.  S.  307,  23  L.  ed. 
552;  Mt.  Pleasant  v.  Beckwith,  100  U.  8. 
514,  525,  25  L.  ed.  699,  701;  Atkin  v.  Kan- 
sas,  191  U.  8.  207,  48  L.  ed.  148,  24  Sup. 
Ct.  Rep.  124;  Cooley,  Const.  Lim.  7th  ed. 
266-268. 

What  constitutes  a  contract  in  the  case 
of  a  private  corporation — its  charter — is,  as 
to  a  publio  oorporation,  a  legislative  com- 


mand  (Piqua  Branch  of  State  Bank  t. 
Knoop,  16  How.  869,  880,  14  L.  ed.  077» 
981),  subject  to  change  at  the  legislative 
will,  Iknited  only  by  specific  constitutional 
restrietion. 

Cooley,  Const.  Lim.  7th  ed.  pp.  266-269; 
1  Dill.  Mun.  Corp.  5th  ed.  §§  37-39;  Mao- 
Mullen  v.  Middletown,  187  N.  Y.  42,  11 
L.RJ^.(N.S.)  391,  79  N.  E.  863;  Scott  v. 
Saratoga  Springs,  109  N.  Y.  178,  92  N.  £. 
393;  Murphy  v.  Ft.  Edward,  213  N.  Y. 
400,  167  N.  E.  716,  9  N.  C.  C.  A.  279; 
Detroit  v.  Osborne,  135  U.  S.  492,  409,  34 
L.  ed.  260,  262,  10  Sup.  Ct  Rep.  1012; 
Barnes  v.  District  of  Columbia,  91  U.  8. 
540,  544,  23  L.  ed.  440,  441;  Ryan  v.  New 
York,  177  N.  Y.  273,  69  N.  E.  599;  Cov- 
ington V.  Kentucky^  173  U.  S.  231,  43  L. 
ed.  679,  19  Sup.  Ct.  Rep.  383;  New  Orleans 
V.  New  Orleans  Waterworks  Co.  142  U.  8. 
70,  35  L.  ed.  943,  12  Sup.  Ct.  Rep.  142;  Mt. 
Pleasant  v.  Beckwith,  100  U.  8.  514,  25 
L.  ed.  699;  Laramie  County  v.  Albany 
County,  92  U.  S.  307,  23  L.  ed.  652*; 
Demarest  v.  New  York,  74  N.  Y.  166;  Dar- 
lington V.  New  York,  31  N.  Y.  194,  88  Am. 
Dec.  248;  People  v.  Pinckney,  32  N.  Y. 
377. 

A  municipality  may  have  property  ri^ts 
which  are  so  far  private  in  their  nature 
that  they  are  not  held  at  the  pleasure  of 
the  legislature;  but,  concededly,  these  are 
difficult  to  define. 

Cooley,  Const.  Lim.  7th  ed.  p.  342;  Dill. 
Mun.  Corp.  5th  ed.  §  111;  Hunter  v.  Pitts^ 
burgh,  207  U.  S.  161,  180,  181,  52  L.  ed. 
151,  160,  28  Sup.  Ct.  Rep.  40.  See  State 
ex  rel.  Bulkeley  v.  Williams,  48  L.R.A. 
465,  note. 

It  may  be  assumed  that  there  are  or  may 
be  in  municipalities  certain  vested  rights  of 
property  in  respect  to  private  property 
which  are  not  completely  under  the  un- 
controlled will  of  the  legislature,  and  which 
will  be  protected  from  confiscatory  action 
on  the  part  of  the  legislature,  and  which  it 
might  not  have  power  to  wholly  divert  to 
any  use  it  saw  fit,  and  particularly  where 
vested  interests  of  third  parties  would  be 
affected. 

Cooley  Const  Lim.  7th  ed.  pp.  342,  39(V- 
392,  et  seq. ;  Worcester  v.  Worcester  Consol. 
Street  R.  Co.  196  U.  8.  539,  551,  49  L.  ed. 
591,  596,  25  Sup.  Ct  Rep.  327;  Tippe- 
canoe County  V.  Lucas,  93  U.  S.  108,  114, 
115,  23  L.  ed.  822,  824,  825;  Webb  v.  New 
York,  64  How.  Pr.  10;  People  v.  Ingersoll, 
58  N.  Y.  1,  17  Am.  Rep.  178;  People  v. 
Fields,  58  N.  Y.  491;  MacMuUen  v.  Mid- 
dletown, 187  N.  Y.  37;  11  L.R.A.(N.S.) 
391,  79  N.  E.  863;  People  ex  rel.  WiUianM 
Engineering  &  Contracting  Co.  v.  Metz,  193 
N.  Y.  161,  24  L.RJL.(N.S.)  201,  85  N.  E. 
1070;  Dill.  Mun.  Corp.  5th  ed.  §  110. 

1S9  U.  8. 


1015. 


CRANE  T.  NEW  YOBK. 


Tet  it  would  ■eem  to  be  obvious  that 
regulations  of  the  use  of  property,  and  of 
the  contraetual  powers  of  the  city  with  re- 
spect thereto,  when  it  is  held  for  some  pub- 
lic use,  should  be  subject  to  legislative  con- 
trol and  direction.  Any  other  doctrine 
would  be  wholly  illogical  and  inconsistent 
with  the  relations  of  a  municipality  to  the 
sUte. 

Atkin  V.  Kansas,  191  U.  &.  207,  48  L.  ed. 
148,  24  Sup.  Ct.  Rep.  124;  People  ex  rel. 
Williams  Engineering  Contracting  Co*,  v. 
Hetz,  103  N.  Y.  161,  24  L.RJl.(N.S.)  201, 
85  K.  £.  1070. 

The  exaction  of  an  obedience  to  the  em- 
ployment policy  of  the  state  in  the  per- 
formance of  public  municipal  enterprises, 
undertaken  by  legislative  sanction  and  au- 
thorization, by  which  the  contractual  rights 
of  the  municipality  are  to  some  extent  con- 
trolled or  diminished,  would  not  constitute 
a  taking  or  deprivation  of  the  property  of 
the  municipality  in  a  constitutional  sense. 

Chicago  &  A.  R.  Co.  v.  Tranbarger,  238 
U.  S.  67,  78,  59  L.  ed.  1204,  1211,  35  Sup. 
Ct.  Rep    678. 

The  right  to  contract  may  be  regulated 
and  sometimes  prohibited  when  the  con- 
tracts or  business  conflict  with  the  policy  of 
the  state  as  contained  in  its  statutes. 

Williams  v.  Fears,  179  U.  S.  270,  274, 
45  L.  ed.  186,  188,  21  Sup.  Ct.  Rep.  128; 
AUgeyer  v.  Louisiana,  165  U.  S.  578,  591, 
41  L.  ed.  832,  836,  17  Sup.  Ct.  Rep.  427; 
Holden  v.  Hardy,  169  U.  S.  366,  42  L.  ed. 
780,  18  Sup.  Ct  Rep.  383. 

And  by  the  statute  here  in  question  the 
state  has  declared  its  policy,  and  has  en- 
joined upon  its  several  agents  and  agencies 
the  duty  of  executing  this  policy. 

People  ex  rel.  Rodgers  v.  Coler,  166  N. 
Y.  25,  52  LJLA.  814,  82  Am.  St.  Rep.  605, 
59  N.  E.  716;  Ryan  v.  New  York,  177  N. 
Y.  271,  69  N.  E.  590. 

The  legislature,  which  conferred  the  power 
of  performance,  may  regulate  the  mode  of 
performance,  and  conform  it  to  the  policy 
of  the  state. 

Atldn  V.  Kansas,  101  U.  S.  207,  48  L.  ed. 
148,  24  Sup.  Ct.  Rep.  124;  People  ex  rel 
Williams  Engineering  k  Contracting  Co.  v. 
Hetz,  103  N.  Y.  159,  24  L.R.A.(N.S.)  201, 
85  N.  £.  1070;  DilL  Hun.  Corp.  5th  ed.  f 
116,  pp.  200,  201. 

The  courts  of  New  York  have  asserted 
the  broadest  measure  of  legislative  control 
over  municipal  corporations  and  their 
property. 

1  DilL  Mnn.  Corp.  5th  ed.  p.  184,  note  1; 
Darlington  t.  New  York,  81  N.  Y.  164,  88 
Am.  Dee.  248;  People  r.  Kerr,  27  N.  Y. 
213. 

The  restrictions  on  the  legislature  are 
only  such  as  are  expressly  imposed. 
••  Ii.  ed. 


MacMullen  t.  Middletown,  187  N.  Y.  37, 
11  L.R.A.(N.S.)  301,  79  N.  E.  391;  People 
ex  rel.  Devery  v.  Coler,  173  N.  Y.  103,  65 
N.  E.  956;  People  ex  rel.  Metropolitan 
Street  R.  Co.  v.  State  Tax  Comrs.  174  N. 
Y.  433,  63  L.R.A.  884,  105  Am.  St.  Rep. 
674,  67  N.  E.  69;  People  ex  rel.  Simon  v. 
Bradley,  207  N.  Y.  611,  101  N.  E.  766. 

The  supreme  court  of  Connecticut  also 
takes  the  emphatie  view  that  no  inherent 
right  of  local  self-government  exists,  and 
that  the  power  of  the  legislature  over 
municipalities  is  only  limited  by  express 
constitutional  restriction.  It  may  be  com- 
pelled to  spend  its  money  for  local  improve- 
ments without  violating  the  14th  Amend- 
ment. 

State  ex  rel  Bulkeley  v.  Williams,  68 
Conn.  131,  48  XJELA.  465,  35  Atl.  24,  421, 
affirmed  as  Williams  v.  Eggleston,  170  U. 
S.  304,  42  L.  ed.  1047,  18  Sup.  a.  Rep. 
617. 

The  legislature  has  the  power  to  disre- 
gard, if  it  sees  fit,  local  subdivisions,  and 
to  ignore  the  municipality  to  the  extent 
of  creating  new  districts  within  it,  and  of 
appointing  state  officials  in  those  districts 
for  the  performance  of  functions  which  the 
municipality  ordinarily  performs.  In  other 
words,  there  is  no  such  thing  under  the 
general  provisions  of  the  Federal  or  state 
Constitutions  as  the  inherent  right  of  local 
self-government. 

People  ex  rel.  Wood  t.  Draper,  15  N.  Y. 
532;  People  v.  Pinckney,  32  N.  Y.  377; 
Astor  V.  New  York,  62  N.  Y.  567;  People 
ex  rel.  v.  State  Tax  Comrs.  174  N.  Y.  444, 
63  L.R.A.  884,  105  Am.  St  Rep.  674,  67 
N.  E.  69;  DilL  Mun.  Corp.  5th  ed.  i  101, 
p.  170. 

No  one  would  deny  that  the  laying  out 
and  improvement  of  streets  for  public 
travel  is  a  public  work  and  a  function  of 
government;  yet  a  city  may  be  liable  for 
negligence  in  failing  to  repair  them  and 
keep  them  safe  for  travel  (Turner  v.  New- 
burgh,  109  N.  Y.  301,  4  Am.  St.  Rep.  453, 
16  N.  E.  344;  Quill  v.  New  York,  36  App. 
Div.  476,  478,  55  N.  Y.  Supp.  889,  5  Am. 
Neg.  Rep.  423;  Barnes  v.  District  of  Co- 
lumbia, 91  U.  8.  540,  23  L.  ed.  440)  unless 
the  legislature  otherwise  provides. 

MacMuUen  t.  Middletown,  187  N.  Y. 
37,  11  LJLA.(N.S.)  391,  79  N.  E.  863. 

The  eases  are  innumerable  which  ex- 
emplify the  plenary  power  of  the  legisla- 
ture over  municipal  corporations,  even  in 
matters  which  are  not  of  a  strictly  sovereign 
nature.  Th^  illustrate  the  practically  un- 
limited control  which  the  legislature  may 
exercise  over  the  contractual  and  property 
ri|^ts  of  municipalities  in  matters  even 
of  a  local  ehi^raeter  which  are  affected  with 
a  public  Interest — ^the  word  "public"  being 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  Tebm, 


used  in  the  broadest  and  most  inclusive 
sense.  They  show  that  a  municipality  may 
be  compelled  to  spend  its  money  in  connec- 
tion with  matters  which  are  in  no  sense 
sovereign  in  their  nature,  and  that,  in  all 
its  powers  and  functions  and  duties,  it  is 
subject  to  the  will  of  the  state,  which 
created  it,  expressed  through  the  mediiun 
of  legislative  enactments.  In  their  relations 
t»  the  state,  in  all  matters  of  a  "public" 
nature,  they  have  no  contractual  rights 
independent  of  the  will  of  the  legislature. 
Atkin  V.  Kansas,  191  U.  S.  207,  48  L. 
ed.  148,  24  Sup.  Ct.  Rep.  124;  Hunter  ▼. 
Pittsburgh,  207  U.  S.  171,  178,  52  L.  ed. 
156,  159,  28  Sup.  Ct.  Rep.  40;  Williams  v. 
Eggleston,  170  U.  S.  304,  310,  42  L.  ed. 
1047,  1049,  18  Sup.  Ct.  Rep.  617,  affirming 
State  ez  rel.  Bulkeley  v.  Williams,  68  Conn. 
131,  48  L.RJ^.  465,  35  Atl.  24,  421 ;  Barnett 
T.  Denison,  145  U.  S.  135,  139,  36  L.  ed. 
652,  653,  12  Sup.  Ct.  Rep.  819;  Hill  v. 
Mraphis,  134  U.  S.  198,  203,  33  L.  ed. 
887,  889,  10  Sup.  Ct.  Rep.  562;  Metro- 
politan R.  Co.  V.  District  of  Columbia,  132 
U.  S.  1,  8,  33  L.  ed.  231,  234,  10  Sup.  Ct. 
Rep.  19;  Meriwether  v.  Garrett,  102  U.  S. 
472,  513,  26  L.  ed.  197,  204;  Mt.  Pleasant 
v.  Beckwith,  100  U.  S.  514,  524,  25  L.  ed. 
699,  701;  Laramie  County  v.  Albany  Coun- 
ty, 92  U.  S.  307,  23  L.  ed.  552;  Barnes  v. 
District  of  Columbia,  91  U.  S.  540,  544, 
23  L.  ed.  440,  441;  United  States  v.  Balti- 
more k  0.  R.  Co.  17  Wall.  322,  329,  21  L. 
ed.  597,  600;  People  ex  rel.  Williams  En- 
gineering &  Contracting  Co.  v.  Metz,  193  N. 
Y.  148,  161,  24  L.R.A.(N.S.)  201,  85  N. 
£.  1070;  MacMullen  v.  Middletown,  187 
N.  Y.  37,  11  L.RJl.(N.S.)  391,  79  N.  E. 
863;  Ryan  v.  New  York,  177  N.  Y.  271,  69 
N.  E.  590;  Demarest  v.  New  York,  74  N. 
Y.  166;  People  v.  Ingersoll,  58  N.  Y.  21, 
17  Am.  Rep.  178;  People  v.  Pinckney,  32 
N.  Y.  393;  Darlington  v.  New  York,  31  N. 
Y.  164,  88  Am.  Dec.  248 ;  People  v.  Morris, 
13  Wend.  329;  See  State  ex  rel.  Bulkeley 
V.  Williams,  48  L.R.A.  465,  note;  Union 
Lime  Co.  v.  Chicago  &  N.  W.  R.  Co.  233 
U.  S.  211,  218,  58  L.  ed.  924,  928,  34  Sup. 
Ct.  Rep.  522;  People  ex  rel.  McLean  v. 
Flagg,  46  N.  Y.  401;  Brewster  v.  Syracuse, 
19  N.  Y.  116;  New  York  v.  Tenth  Nat. 
Bk.  Ill  N.  Y.  446,  18  N.  E.  618;  Guil- 
ford V.  Chenango  County,  13  N.  Y.  143; 
Syracuse  ▼.  Hubbard,  64  App.  Div.  587,  72 
N.  Y.  Supp.  802;  New  Orleans  v.  Clark 
(Jefferson  City  Gaslight  Co.  v.  Clark)  95 
U.  S.  644,  654,  24  L.  ed.  521,  522;  Guthrie 
Nat.  Bank  ▼.  Guthrie,  173  U.  S.  528,  536, 
43  L.  ed.  796,  799,  19  Sup.  Ct.  Rep.  513; 
Brown  v.  New  York,  63  N.  Y.  239;  New 
York  V.  Fulton  Market  Fishmongers'  Asso. 
3  How.  Pr.  N.  S.  500;  Re  Union  Ferry  Co. 
98  N.  Y.  139 ;  Tocci  v.  New  York,  73  Hun, 
S24 


46,  25  N.  Y.  Supp.  1080;  People  ez  reL 
Simon  v.  Bradley,  207  N.  Y.  592,  101  N. 
E.  766;  Perkins  y.  Slack,  86  Pa.  270; 
Potter  ▼.  Collia,  10  App.  DiT.  892,  46  N. 
Y.  Supp.  471,  affirmed  in  156  N.  Y.  16, 
50  N.  E.  413;  Higginson  t.  The  Treasurer 
(Higginson  v.  Slattery)  212  Mass.  583,  42 
L.RJL.(N.S.)  215,  99  N.  E.  523;  Re  King- 
man, 153  Mass.  566,  12  LJUL  417,  27 
N.  E.  778;  Re  Protestant  Episcopal  Public 
Sehool,  46  N.  Y.  178;  Milwaukee  Electric 
R.  'k  Light  Co.  V.  Railroad  Commission, 
238  U.  S.  174,  59  L.  ed.  1254,  P.U.R.1915D, 
591,  35  Sup.  Ct.  Rep.  820;  Hudson  County 
Water  Co.  v.  McCarter,  209  U.  S.  349,  857, 
52  L.  ed.  828,  832,  28  Sup.  Ct.  Rep.  529, 
14  Ann.  Cas.  560;  Re  Adams,  165  Mass. 
497,  43  N.  £.  682;  Prince  ▼.  Crocker,  166 
Mass.  359,  32  L.R.A.  610,  44  N.  E.  446; 
Terrett  ▼.  Taylor,  9  Cranch,  43,  3  L.  ed. 
650;  Payne  v.  Tread  well,  16  Cal.  221;  Jones 
V.  Lake  View,  151  lU.  663,  38  N.  E.  688; 
Frederick  v.  Groshon,  30  Md.  436,  96  Am. 
Dec.  591;  Groff  ▼.  Frederick  City,  44  Md. 
67;  State  Bank  y.  Madison,  8  Ind.  43; 
Paterson  v.  Society  for  Establishing  Useful 
Manufactures,  24  N.  J.  L.  385;  State  ex 
rel.  Cleveland  ▼.  Board  of  Finance  k  Tazn. 
38  N.  J.  L.  259;  Re  Dalton,  61  Kan.  257, 
47  L.R.A.  380,  59  Pac.  336;  Rogers  ▼. 
Burlington,  3  Wall.  654,  663,  18  L.  ed.  79, 
82;  Worcester  ▼.  Worcester  Consol.  Street 
R.  Co.  196  U.  S.  539,  550,  552,  49  L.  ed. 
591,  595,  596,  25  Sup.  Ct.  Rep.  827;  Boisft 
Artesian  Hot  k  Cold  Water  Co.  v.  Bois6 
City,  230  U.  S.  84,  94,  57  L.  ed.  1400,  1407, 
33  Sup.  Ct.  Rep.  997 ;  Old  Colony  Trust  Co. 
V.  Omaha,  230  U.  S.  100,  57  L.  ed.  1410, 
33  Sup.  Ct  Rep.  067. 

An  uncompensated  obedience  to  Intimate 
regulations  established  by  the  state  in  car- 
rying  out  its  public  policy  would  not  con- 
stitute  an  unconstitutional  deprivation  of 
property. 

Chicago  k  A.  R.  Co.  v.  Tranbarger,  238 
U.  S.  67,  78,  59  L.  ed.  1204,  1211,  35  Sup. 
Ct.  Rep.  678;  Northern  P.  R.  Co.  v.  Min- 
nesota, 208  U.  S.  583,  597,  52  K  ed.  630, 
636,  28  Sup.  Ct  Rep.  341. 

Whether  we  call  the  construction  of  pub- 
lic works  and  the  operation  of  public  utili- 
ties "governmental"  or  "proprietary,"  "non- 
governmental" or  "quasi  private^"  the  fact 
remains  that  such  works  are,  in  every  real 
sense  of  the  word,  public  undertakings,  and, 
to  use  the  words  of  the  court  of  appeals, 
"in  all  of  the  public  undertakings,  the 
state  is  the  proprietor." 

Ryan  v.  New  York,  177  N.  Y.  278,  60 
N.  E.  599;  People  ex  rel.  Williams  En- 
gineering k  Contracting  Co.  ▼.  Mets,  198  N. 
Y.  148,  24  L.R.A.(N.S.)  201,  85  N.  B. 
1070;  Astor  v.  New  York,  62  N.  Y.  689. 

The  statute  does  not  contravene  the  pro- 

SS9  U.  8. 


1015. 


CRANE  V.  NEW  YORK. 


197,  198 


Tision  of  the  Federal  Constitution  prohibit- 
ing the  passage  by  the  states  of  ew  post 
facto  laws,  or  laws  impairing  the  obliga- 
tion of  contracts. 

Cleveland  A  P.  R.  Co.  t.  Cleveland,  236 
U.  S.  50,  63,  64,  69  L.  ed.  127,  128,  36 
8ap.  Ct.  Rep.  21;  Ross  v.  Oregon,  227  U. 
8.  150,  161,  57  L.  ed.  458,  463,  33  Sup.  Ct. 
Rep.  220,  Ann.  Cas.  1914C,  224;  Moore-Mans- 
field Constr.  Co.  v.  Elec^ical  Installation 
Co.  234  U.  S.  619,  624,  68  L.  ed.  1603,  1605, 

34  Sup.  Ct.  Rep.  941;  Frank  v.  Mangum, 
237  U.  S.  309,  69  L.  ed.  969,  36  Sup.  Ct. 
Rep.  532;  Malloj  v.  South  Carolina,  237 
U.    S.    180,    183,    184,   69   L.   ed.   906-907, 

35  Sup.  Ct.  Kep.  607;  Shevlin-Carpenter  Co. 
V.  MinnesoU,  218  U.  S.  67,  68,  69,  64  L. 
ed.  930,  935,  30  Sup.  Ct.  Rep.  663;  Peo- 
ple V.  West,  106  N.  Y.  296,  60  Am.  Rep. 
452,   12   N.   E.   610. 

Statutes  will  be  construed  to  be  prospec- 
tive only  (Calder  v.  Bull,  3  Dall,  386,  391, 
1  L.  ed.  648,  660;  Waugh  v.  University  of 
Miasiasippi,  237  U.  S.  689,  596,  59  L.  ed. 
1131,  1136,  35  Sup.  Ct.  Rep.  720),  unless  a 
contrary  intent  is  unavoidable  from  the  lan- 
guage used;  and  if  a  statute  is  susceptible 
of  two  constructions,  one  of  which  would 
render  it  unconstitutional  and  the  other 
valid,  that  which  upholds  it  will  be  adopted. 

St.  Louis  Southwestern  R.  Co.  v.  Arkan- 
sas, 236  U.  S.  360,  369,  69  L.  ed.  266,  274, 
35  Sup.  Ct.  Rep.  99;  Plymouth  Coal  Co. 
V.  Pennsylvania,  232  U.  8.  631,  546,  68 
L.  ed.  713,  720,  34  Sup.  Ct.  Rep.  369; 
People  ex  rel.  Simon  v.  Bradley,  207  N.  Y. 
610,  101  N.  E.  766. 

One  who  questions  the  validity  of  a  law 
must  show  that  its  alleged  imconstitutional 
feature  injurea  him,  or,  at  least,  the  class 
to  which  he  belongs. 

Plymouth  Coal  Co.  t.  Pennsylvania,  232 
U.  8.  631,  644,  545,  68  L.  ed.  713,  719,  720, 
34  Sup.  Ct.  Rep.  359;  Rosenthal  v.  New 
York,  226  U.  8.  260,  271,  67  L.  ed.  212, 
217,  33  Sup.  Ct.  Rep.  27,  Ann.  Cas.  1914B, 
71 ;  Engel  v.  O^alley,  219  U.  8.  128,  66 
L.  ed.  128,  31  Sup.  Ct.  Rep.  190;  Mai- 
linckrodt  Chemical  Works  v.  Missouri,  238 
U.  8.  41,  54,  59  L.  ed.  1192,  1197,  35  Sup. 
Ct.  Rep.  671. 

The  statute  is  not  in  conflict  with  exist- 
ing treaties. 

Oeofroy  v.  Riggs,  133  U.  8.  258,  266,  33 
L.  ed.  642,  644,  10  Sup.  Ct.  Rep.  296; 
United  Stotes  v.  ChocUw  Nation,  179  U.  8. 
404,  533,  46  L.  ed.  291,  306,  21  Sup.  Ct. 
Bap.  149;  Com.  v.  Patsone,  231  Pa.  46,  79 
AtL  928,  affirmed  in  232  U.  8.  138,  68  L. 
ed.  639,  34  Sup.  Ct  Rep.  281. 

Mr.  Justice  Mc&enna  delivered  the  opin- 
ioB  of  the  court: 

niis  ease  was  argued  and  submitted  with 
••  Ij.  ed. 


No.  386,  just  decided  [230  U.  S.  175,  ante, 
206,  36  Sup.  Ct.  Rep.  78].  It  involves  the 
criminal  feature  of  §  14  of  the  labor  law 
of  the  state,  which  was  the  subject  of  the 
opinion  in  No.  386.  It  provided  that  a  vio- 
lation of  the  section  should  constitute  a 
misdemeanor  and  be  punished  by  fine  or  im- 
prisonment, or  by  both. 

The  case  was  commenced  by  information 
which  accused  Crane,  plaintiff  in  error, 
while  engaged  as  a  contractor  with  the 
city  in  the  construction  of  a  public  work 
of  such  city,  by  virtue  of  a  contract  entered 
into  with  the  city,  of  having  employed 
three  persons  not  then  citizens  of  the 
United  SUtes. 

The  public  work  was  the  construction  of 
catch  or  sewer  basins. 

The  defense  was  the  unconstitutionality 
of  the  law,  and  that  it  was  in  violation  of 
the  treaties  of  the  United  States  with  for- 
eign countries. 

The  treaties  were  put  in  evidence  over 
the  objection  of  the  prosecuting  officer,  and 
a  motion,  was  made  to  dismiss  the  informa- 
tion on  the  grounds  above  stated.  The  mo- 
tion was  denied,  and  plaintiff  in  error  found 
guilty  and  sentenced  to  pay  a  fine  of  $50, 
or,  in  default  thereof,  to  be  committed  to 
the  city  prison  for  the  term  of  ten  days. 

[198]  The  case  was  then  appealed  to  the 
appellate  division  of  the  supreme  court,  and 
there  heard  with  Heim  v.  McCall  (No. 
386  [239  U.  8.  175,  ante,  206,  36  Sup.  Ct. 
Rep.  78] ) . 

The  judgment  was  reversed.  This  action 
was  not  sustained  by  the  court  of  appeals. 
In  that  court  and  in  the  appellate  division 
the  eases  were  heard  together  and  decided 
by  the  same  opinions,  they  being  rendered 
in  the  present  case  and  the  judgment  of 
the  trial  court  (special  term)  affirmed. 

It  appeared  from  the  testimony  that  one 
of  the  laborers  employed  was  a  subject  of 
the  King  of  Italy  (the  nationality  of  the 
others  was  not  shown),  and  a  treaty  be- 
tween the  United  States  and  that  country, 
signed  February  26,.  1913  [38  SUt.  at  L. 
1669],  was  received  in  evidence  over  the  ob- 
jection of  the  district  attorney  on  the 
ground  that  "none  of  the  parties  to  the 
proceeding  is  a  subject  of  the  King  of 
Italy."  Treaties  with  other  countries  were 
also  received  in  evidence.  To  them  the  dis- 
trict attorney  objected  on  the  ground  that 
none  of  the  parties  to  the  proceedings  and 
"nobody  who  was  connected  in  any  way 
with  the  subject-matter  of  the  contract  or 
employed  in  the  perfomutnce  of  the  work" 
was  "a  subject  or  citizen  of  any  of  the 
countries  referred  to." 

The  provisions  of  the  treaty  with  Italy 
are  set  out  in  the  opinion  in  the  Heim  Case, 
Snd  the  provisions  of  the  other  treaties  are 
16  S15 


198-200 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TkiM, 


not,  80  far  M  their  application  it  ccmeemod, 
materially  different. 

The  contentions  of  plaintiff  in  error  are 
based  on  the  treaties  and  on  the  14th 
Amendment  of  the  Constitution  of  the 
United  States.  The  specifications  of  error 
are  the  same,  though  varying  in  expression, 
as  those  in  the  Heim  Case,  and  there  con- 
sidered and  declared  untenable.  There  Is 
added  the  view  that  a  distinction  made  be* 
tween  aliens  and  citizens  violates  the  princi- 
ple of  classification.  We  think  this  view 
is  also  without  foundation* 

Judgment  affirmed. 


[199]    ATLANTIC   COAST   LINE   RAIL- 
ROAD COMPANY,  Plff.  in  Err., 

V. 

GENERAL  BURNETTE. 
(See  8.  C.  Reporter's  ed.  199-201.) 

Master  and  servant  —  employers*  lia- 
bility act  —  time  for  svit  —  limitation 
or  condition  —  necessity  of  pleading. 

An  action  in  a  state  court  founded 
upon  the  employers'  liability  act  of  April 
22,  1908  (35  Stot.  at  L.  65,  chap.  149, 
Comp.  Stat.  1913,  §  8657),  must  fail  where 
the  record  shows  that  it  was'  not  begun  un- 
til the  time  had  elapsed  after  which,  under 
§  6  of  that  act,  ''no  action  shall  be  main- 
tained," although  defendant  did  not  raise 
the  objection  in  his  pleading. 
[For  other  cases,  tee  Master  and  Servant.  II.: 
Pleading,  UL  g,  in  Digest  Sup.  Ct.  1908.] 

[No.  66.] 

Argued  NoTcmber  9,  1915.    Decided  Novem- 
ber 29, 1915. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  North  Carolina  to  review  *  a 
judgment  which  reversed  a  judgment  of  the 
Superior  Court  of  Edgecombe  County,  in 
that  state,  in  favor  of  defendant  in  an  ac- 
tion under  the  Federal  employers'  liability 
act.    Reversed. 

See  same  case  below,  163  N.  0.  186,  70 
S.  E.  414. 

The  facts  are  stated  in  the  opinion. 

Note.— On  the  constitutionality,  applica- 
tion, and  effect  of  Federal  employers'  lia- 
bili^  act— see  notes  to  Lamphere  v.  Oregon 
R.  A  Nav.  Co.  47  L.R.A.(N.S.)  38;  and  Sea- 
board Air  Line  R.  Co.  t.  Horton,  L.R.A. 
1915C,  47. 

On  the  necessity  of  pleading  limitation  as 
bar  to  statutory  action  for  death — see  note 
to  Martin  v.  Pittoburgh  R.  Co.  26  L.RJ^. 

(N.S.)  1221. 

As  to  aosnsity  for  alleging  that  action 
for  death  li  within  statutory  period— see 
note  to  Skarrow  t.  Inland  Lines,  L.ILA* 
1915B»  1192. 
11« 


Mr.  Frederic  D.  MCKenney  argued  the 
cause,  and,  with  Messrs.  F.  S.  Spruill  and 
John  Spalding  Flannery,  filed  a  brief  for 
plaintiff  in  error. 

No  appearance  for  defendant  in  error. 

Mr.  Justice  Holmes  delivered  the  opinion 
of  the  oourt: 

The  plaintiff  (defendant  in  error)  was  a 
fireman  onployed  by  the  defendant.  On 
October  5,  1907,  he  was  injured  by  its  negli- 
gence while  working  upon  a  train  running 
from  South  Carolina  to  North  Carolina. 
He  brought  this  [200]  action  on  January  7, 
1910,  and  judgment  was  ordered  for  a  cer- 
tain simi  by  the  supreme  court  of  the  state. 
163  N.  C.  186,  79  S.  E.  414.  The  supreme 
court  assimied  that  the  case  was  governed  by 
the  act  of  April  22, 1908,  chap.  140,  35  Stat, 
at  L.  65,  Comp.  SUt.  1913»  §  8657.  Two  er- 
rors are  assigned.  First,  in  holding  that 
statute  applicable  to  the  cause  of  action,  and 
second,  in  allowing  a  recovery  under  it  in 
an  action  begun  more  than  two  years  after 
the  cause  of  action  accrued.  Id.  §  6.  The 
case  was  not  argued  in  this  court 
on  behalf  of  the  defendant  in  error, 
but  we  gather  from  the  record  in  the 
opinion  that  while,  at  the  trial,  the  rail- 
road, upon  issues  toot  before  us,  insisted 
that  the  Federal  statute  was  not  applicable, 
the  contrary  was  admitted  before  the  su- 
preme cou^;  so  that,  although  the  admis- 
sion seems  to  have  been  made  with  the 
second  question  only  in  view,  the  first  point 
would  appear  not  to  have  been  drawn  to  the 
attention  of  either  court,  and  there  was  no 
discussion  of  how  the  oase  would  stand 
apart  from  the  act.  The  second  objection 
was  met  by  deciding  that  the  limitation  of 
two  years  imposed  by  §  6  could  not  be  relied 
upon  for  want  of  a  plea  setting  it  up. 

It  would  seem  a  miscarriage  of  justice  if 
the  plaintiff  dkould  recover  upon  a  statute 
that  did  not  govern  the  case,  in  a  suit  that 
the  same  act  declar^  too  late  to  be  main- 
tained. A  right  may  be  waived  or  lost  by 
a  failure  to  assert  it  at  the  proper  time 
(Burnet  v.  Desmomes,  226  U.  S.  145,  57  L. 
ed.  159,  33  Sup.  Ct.  Rep.  63 ) ;  but  when  a 
party  has  meant  to  insist  on  all  the  rights 
it  might  have,  such  a  result  would  be  un- 
usual and  extreme.  The  record  shows  a 
case  to  which  the  act  of  1908  did  not  apply 
(Winfree  v.  Northern  P.  R.  Co.  227  UTS- 
296,  57  L.  ed.  518,  33  Sup.  Ct.  Rep.  273), 
and  which  the  earlier  act  of  1906  [34  Stat. 
at  L.  232,  chap.  3073]  probably  could  not 
affect  (Employers'  Liability  Cases  (How- 
ard v.  Illinois  C.  R.  Co.)  207  U.  S.  463,  489, 
52  L.  ed.  297,  305,  28  Sup.  Ct.  Rep.  141. 
It  ako  shows  that  the  aftion  was  brou^t 
too  late,  and  that  the  defendant  insisted 
upon  that  point,  although  it  had  not  plead- 

239  U.  8* 


1916.  NEW  ORLEANS-BELIZE,  ET€.»  S.  8.  CO.  t.  UNITED  STATES.      200-202 


ed  what  was  appareot  <m  the  allegations  of 
the  declaration  and  the  admissions  of  the 


[801]  In  dealing  with  the  enactments  of 
a  paramount  authority,  such  as  Congress  is, 
within  its  sphere^  OTer  the  states,  we  are 
not  to  be  curious  in  nomenclature  if  Con- 
grees  has  made  its  will  plain,  nor  to  allow 
BubetantiTe  riglits  to  be  impaired  under  the 
name  of  procedure.  Central  Vermont  K. 
Co.  T.  White,  238  U.  B.  607,  611,  69  L.  ed, 
1433,  1436,  86  Sup.  Ct.  Rep.  865.  But,  ir- 
respective of  the  fact  that  the  act  of  Con- 
gress is  paramount,  when  a  law  that  is 
relied  on  as  a  source  of  an  obligation  in 
tort  seta  a  limit  to  the  existence  of  what  it 
creates,  other  jurisdictions  naturally  have 
been  disinclined  to  press  the  obligation 
farther.  Davis  v.  Mills,  104  U.  S.  451,  454, 
48  L.  ed.  1067,  1070,  24  Sup.  Ct  Rep.  692; 
The  Harnsburg,  119  U.  S.  109,  80  L.  ed. 
358,  7  Sup.  Ct.  Rep.  140.  There  May  be 
special  reasons  for  regarding  such  obli- 
gations imposed  upon  railroads  by  the  stat- 
utes of  the  United  States  as  so  limited.  A. 
J.  Phillips  Co.  v.  Grand  Trunk  Western  R. 
Co.  236  U.  S.  662,  667,  59  L.  ed.  774,  776,  86 
Sup.  Ct,  Rep.  444.  At  all  events,  the  act 
of  Congress  creates  the  only  obligatiim  that 
has  existed  since  its  enactment  in  a  case 
like  this,  whatever  similar  ones  formerly 
may  have  been  found  under  local  law 
emanating  from  a  different  source.  Winfree 
V.  Korthcm  P.  R.  Co.  227  U.  a  296,  302,  67 
L.  ed.  51S,  520,  33  Sup.  Ct  Rep.  273.  If  it 
be  available  in  a  state  court  to  found  a 
right,  and  the  record  shows  a  lapse  of  time 
after  which  the  act  says  that  no  action 
shall  be  maintained,  the  action  must  fail  in 
the  courts  of  a  state  as  in  those  of  the 
United  SUtes. 

The  ground  that  we  have  stated  is  suf- 
ficient for  the  reversal  of  the  judgment  so 
far  as  it  proceeds  upon  the  act  of  1908,  and 
therefore  we  are  relieved  from  the  necessity 
of  deciding  whether  the  record  is  in  such 
shape  that  the  even  more  fundamental  ob- 
jection to  the  application  of  the  act  cannot 
be  considered  by  this  court 

Judgment  reversed. 


[S081  NEW  ORLEANS-BELIZE  BOTAL 
HAIL  k  CENTRAL  AMERICAN  STEAM- 
SaiF  COMPANY,  limited,  Appt, 

T. 

UNITED  STATEa 

(See  S.  a  Reporter's  ed.  202-207.) 

Shipping  ^  United  States  as  charterer 
^  demise  or  contract  for  serrlce. 
1.  The  United  SUtes  did  not  become 
•0  L.  ed. 


the  owner  pro  hac  vice  of  a  vessel  chartered 
for  military  servioe  so  as  to  affect  the  ex- 
tent of  the  government's  liability  for  in- 
juries to  the  vessel  and  for  demurrage  due 
to  repairs,  where  the  charter  party,  al- 
though it  recites  that  the  owner  ^'^does  here- 
by grant  and  let*'  and  that  the  government 
'*does  hereby  take"  the  vessel,  and  fixes  the 
price  at  which  the  United  States  may  pur- 
chase the  vessel,  and  refers  to  the  vessel 
being  ''returned,"  and  contemplates  that  the 
need  of  repairs  may  be  attributable  to  the 
fault  of  the  government,  and  gives  the  gov- 
eniment  control  over  the  destination,  also 
requires  the  owner  to  furnish  the  master 
and  crew,  and  to  deliver  the  cargo  in  good 
condition,  dangers  of  the  sea,  etc.,  excepted, 
and  to  assume  the  marine  risk. 
[For  other  eases,  see  Shipping,  IV.  a,  8,  in 
lAgent  Sop.  Ct.  1908.] 

Sliipping  —  United  States  as  tfiarterer 
—  marine  risk. 

2.  The  United  States  cannot  be  held 
liable  under  the  provisions  of  a  charter 
party  for  not  returning  a  chartered  vessel 
in  the  same  order  aa  received,  and  for  de- 
murrage due  to  repairs  attributable  to  its 
fault,  where  the  damage  was  due  proximate- 
ly to  marine  risks  which  the  owner  assumed. 
(For  other  cases,  see  Shipping.  IV.  a,  8,  in 

Digest  Sup.  Ct  1008.] 

Claims  —  Jurisdiction  —  contract  or  tort. 

3.  The  United  States  is  not  suable  in 
the  court  of  claims  upon  a  claim  for  in- 
juries to  a  vessel  chartered  by  it  for  mili- 
tary purposes,  which  were  received  while 
the  vessel  was  performing  services  outside 
the  contract,  under  the  compulsion  of  of- 
ficers of  the  government. 

[For  other  cases,  see  Clsims,  105-108,  12^ 
181,  in  Digest  Sup.  Ct.  1008.] 

[No.  71.1 

Argued  November  11,  1015.     Decided  No^ 
vember  20,  1015. 

APPEAL  frpm  the  Court  of  Claims  to  re- 
view a  judgment  which  rejected  a  claim 
for  injuries  to  a  vessel  chartered  for  mili* 
tary  purposes,  and  for  demurrage  while  un« 
dergoing  repairs.    Affirmed. 
The  facts  are  stated  in  the  opinion. 

Mr.  A.  R.  Serven  argued  the  cause  and 
filed  a  brief  for  appellant: 

Does  the  charter  party  constitute  a  de- 
mise of  the  vessel,  or  is  it  a  mere  contract 
of  affreightment? 

United  States  v.  8hea,  152  U.  S.  178,  88 
L.  ed.  403,  14  Sup.  Ct.  Rep.  510;  Belcher 
T.  Capper,  11  L.  J.  0.  P.  N.  S.  276,  4 
Mann.  A  O.  502,  5  Scott,  N.  R.  257;  Ray- 
mond T.  I^son,  17  How.  53,  50,  15  L.  ed. 
47,  48;  American  Steel-Barge  Co.  t.  Cargo 
of  Coal,  107  Fed.  067;  New  Bedford  k  N.  V. 
Steam  Propeller  Co.  t.  United  States,  14 
WalL  670,  20  L.  ed.  760;  The  AberfoyK 
Abb.  Adm.  255,  Fed.  Cas.  No.  16;  Clark- 
mm  T.  Edes,  4  Cow.  470;  Donahoe  r.  Kettell, 


208                            SUPREME  COURT  OF  THE  UNITED  STATES.  Oct.  Tbeic, 

1   Cliff.   135,   Fed.   Cas.  No.   3,080;    Drink-  6  Ct.  CI.  284;  The  Rhode  Island,  2  Blatchf. 

water  v.  The  Spartan,  1   Ware,   149,   Fed.  114,   Fed.  Cas.   No.   11,744;   Richardson    r. 

Cas.  No.  4,085;  Gracie  v.  Palmer,  8  Wheat.  Winsor,  3  Cliff.  402,  Fed.  Cas.  No.  11,795; 

605,  5  L.  ed.  696;   Holmes  v.  Pavenstedt,  Ruggles  v.  Bucknor,  1  Paine,  358,  Fed.  Cas. 

5   Sandf.   100;   Trinity   House  v.   Clark,   4  No.    12,115;    Sailing-Ship    Garston    Co.    v. 

Maule  *  S.  288;  Perkins  v.  Hill,  2  Woodb.  Hickie,  L.  R.  15  Q.  B.  Div.  580,  53  L.  T.  N. 

k  M.  i68,  Fed.  Cas.  No.  10,987 ;  Pickman  S.  795,  5  Asp.  Mar.  L.  Cas.  499 ;  Schultz  t. 

V.    Woods,    6    Pick.    254;    Reed    ▼.    United  United  States,  3  Ct.  CI.  66;  The  Stromleea, 

States,  11  Wall.  591,  20  L.  ed.  220;  Sande-  1    Low.    Dec.    153,    Fed.    Cas.   No.    13,540; 

man  v.  Scurr,  L.  R.  2  Q.  B.  86,  8  Best  &  S.  Thames   &    M.    M.    Ins.    Co.    ▼.    Hamilton* 

50,  36  L.  J.  Q.  B.  N.  S.  58,  15  L.  T.  N.  S.  I4.  R.  12  App.  Cas.  484,  56  L.  J.  Q.  B.  N. 

608,  16  Week.  Rep.  277;  Taggard  v.  Loring,  S.  626,  57  L.  T.  N.  S.  695,  36  Week.  Rep. 

16  Mass.  336,  8  Am.  Dec.  140;  The  Volun-  337,  6  Asp.   Mar.   L.   Cas.  200;   Topliff  v. 

teer,   1   Sumn.  551,   Fed.  Cas.   No.   16,991;  Topliff,   122  U.  S.   121,  30  L.  ed.   1110,  7 

Webb  T.   Peirce,    1   Curt.    C.   C.   104,   Fed.  Sup.  Ct.  Rep.  1057 ;  United  States  v.  Bovans, 

Cas.  No.  17,320.  3  Wheat.  336,  4  L.  ed.  404 ;  Williamson  t. 

The   wrongful   acts    of   the    officers    and  Barrett,  13  How.  101,  14  L.  ed.  68. 

agent,  of  the  United  State,  of  the  kind  AMi.Unt   Attorney   General  Tbomp^n 

committed  in  thi.  caw,  which  cau«d  dam-  ^^     ^  ^^^^              /„^    ^.^^  j^^    ^.„.^^ 

age  to  the  Stillwater,  are  exactly  the  kind  ^j^   g,^  ^  j^^j^^  ^^^  appellee- 

for  which  the  United  SUte.  is  liable.  '      v    ♦«,   oartv   wa.   a   contract   for 

Donald  V.  United  SUte.,  39  a.  CI.  357.  „J^,*     .' j  !„?  .  L.!^!!       contract   tor 

•     .,             11      1.  Li    L               t  jx  service,  and  not  a  demise. 

IB  the  appellee  liable  b««u.e  of  iU  con-  j^^  ^  United  State..  U  Wall.  600.  «01, 

tractual  obligation.,  regardle»  of  the  que.-  ^  ^   ^   ^^,  Le*^  ^    U^.^^  g^^^^^  1^ 

"^  lu  *r*^"*    ,  n*  />,   ^on    on.     ai  Wall.  611.  20  L.  ed.  756;  Shaw  v.  United 

,  ='"^Vo.  ^    r       v'  «»'  Th'/l'PP*.  sute^  93  U.  8.  240.  23  L.  ed.  881,  Rey- 

L  r°;u    ••  f*i  ^'n     ?;  i?   '  l'«p7o!-  «»old  r.   United   Stat^..   6   a.   CI.  284.    16 

St.  Catherine'.  Dock  Co.  14  M^  &  W.  794.  ^  „            gl  L.  ed.  67;  Donald  v.  United 

16  L.  J    Exch.  N.  S.  34;  State.  ABder«m  g            3^  ^    ^    37       ^            ,    y^.^^ 

ll^t"''^     4     1?'      aid'   ;    !!i    I  State  14  Wall.  631.  20  L.  Id.  738;  Hoc. 

Atl.   539;   The  Apollon.   9   Wheat.   362    6  Q^rerm^.  1  Cranch.  214.  2  L.  ed.  86. 

L.  ed.  Ill;   Balt£er  t.  Raleigh  &  A.  Air  a«                 L    i.     i.     ij       i.       -«     j    «« 

T'       i>    n      lie  TT    a    Ao^    on  T      j    kak  The  govemment  should   not   respond   in 

?«o"^,^"  f?^«o    -fi.    «•!;    JT'  H-     "«  fall^i"  the  term,  of  the  marine  ri.k 

w  '.1   SM   i1t    ii^L    «1      K    .      "^1  •"'«»'*<l  by  appellant  under  the  contract, 

^  w    -f'  Jf,    ,r^A       n       ,fi«     «    f,^'  «"  «•  tortlou.  acta  upon  the  part  of  goV^ 

21   Wend.  342,  34  Am.  Dec.  250;   Bradley  x    «  •  i 

wr    ui  -*        A    iL  n    o*          T»    1   X  r.  emment  officials. 
▼.  Washington,  A.  a  G.  Steam  Packet  Co. 


Fed.   Cas.   No.   2,559;    Campion   v.   Colvin,  ,.         '      n  -*.  1  o*.  \       -icr  tt    c    'la'r    oa 

q  Ri«cr   XT    r    17    q  Q^**  Ni^ft    9  vf^»J  ^*"«®'*  ^-  United  States,  155  U.  S.  167,  39 

?i?  Tt      T  V    p\f   s'qit'^^    '  L.   ed.   110,   16   Sup.  Ct.  Rep.  86;    Unit«l 

116,  5  L.  J.  C.  P.  N.   S.  317;   The   Bing-  «,^.       ,    v:«v.i    Vo  w-ii    aqa    oh  t.    ^ 


""'  "  ^'  r:     *     «.  Vi    k^WoiIa    iot  SUtea  T.  Kimbal,  13  Wall.  636,  20  L.  ed. 

hamton  Bridge,  3  Wall.  61,  18  L.  ed.  137;  -^o      »    u  u         tt  i*  j    o*-.*  J    ik   xkt  n 

i-ii    1         ^#         V      4.i.     17    iL   ^#    T        r^  S03 ;    Reybold  v.  United   States,   16   WalL 

Clark  V.  Massachusetts  F.  &  M.  Ins.  Co.  ^^0   oi  t    ^    k7 

2   Pick.   108,   13  Am.   Dec.   400;    Clark   v.  ^^^'  ^^  ^'  ^-  *"'• 

United    States,   9   Ct.    CI.    387;    The   Con-  w     r    *•      «  1          j  i-        a  ^u 

laa  T7    a    iin    ai    t       j    ao-t    it  Mr.  Justicc  HolDies  delivered  the  opuiion 

queror,   166  U.   S.   110,   41   L.  ed.  937,   17  ...             .^                                             "^ 

Sup.   Ct.   Rep.   610;    Donnell   v.   Amoskeag  mu.    •       '  1  •      *      •   •     •      x    au    -a^ 

Mfg.   Co.   55   C.   C.   A.   178,   118   Fed.   loT  J^Vu^  ""^^'"^ ^^^''^T^  l!" ^      "^L 

Fofhes  V.  United  States,   10  Ct.   CI.  248  '^'iT^r't    '^^'^'^^^^^ 

Garrison- V.  United  Statei,  7  Wall.  688,  19  ^'''^  ^**^ooa  """"/f^    a*     ^'J^f^^ 

L.  ed.  277 ;  Hawgood  v.  1.310  Tons  of  Coal,  rf ™»^' J'  i^'  n        T    iT"[«Sf  iX 

21  Fed.  681;   Hunter  v.  Northern  M.  Ins  November  2  to  December   14,   1898,  while 

Co.  L.  R.  13  App.  Cas.  717;  The  Kimball  ^^  \^^}  ^"  undergoing  repairs.    It  wms 

(Duncan  v.  Kimball)  3  Wall.  43,  18  L.  ed.  '«J^*^  ^y  ^^^  ^^"^^  ^'  ^^»*°^»  ^°  *^®  *"" 

50;  The  Mayflower,  Brown,  Adm.  380,  Fed.  thority    of    Plant    Invest.    Co.    v.    United 

Cas.  No.  9,345;   Mott  v.  United  SUtes,  9  States,  45  Ct.  CI.  374. 

Ct.  CI.  267;  The  M.  S.  Bacon  v.  Erie  k  W.  The    injuries    were    caused    as    follows: 


Transp.  Co.  3  Fed.  344;  Northwestern  Mut. 
L.  Ins.  Co.  V.  Gridley,  100  U.  S.  614,  26 
L.  ed.  746:  Owen  v.  49,774  Bushels  of  Rye, 
64    Fed.    186;    Reybold   t.    United   Stotea, 


First,  in  June,  1898,  there  was  a  collision 
with  another  steamship  in  Tampa  bay,  it 
does  not  appear  by  whose  fault.  Three 
weeks    later    the    Stillwater    was    driven 


228  2S9  U.  8. 


1915. 


NEW  ORLEANS-BELIZE,  ETC.,  S.  S.   CO.  v.  UNITED  STATES.  203-200 


against  the  rocks  while  unloading  horses  in 
Daiquiri  bay,  Cuba,  during  a  gale,  with 
other  incidental  damage.  On  July  27,  in 
Gauanica  Bay,  Porto  Rico,  there  was  an- 
other collision  with  a  steamer.  On  August 
3,  in  obedience  to  orders  against  which  the 
captain  protested,  the  Stillwater  assisted 
in  lightering  the  United  States  auxiliary 
cruiser  St.  Paul,  at  Arroyo,  Porto  Rico,  and 
while  lying  alongside  the  St.  Paul,  in  rough 
water,  was  damaged  by  the  after-gun  spon- 
son  of  the  St.  Paul  being  thrown  down  upon 
it.  On  August  4,  in  obedience  to  orders 
from  the  naval  lieutenant  in  charge, 
against  the  protest  of  the  captain,  the  Still- 
water was  made  fast  to  the  Massachusetts, 
then  on  the  rocks  at  Ponce,  Porto  Rico, 
and  atti^mpted  to  pull  it  off.  The  weather 
was  rough,  and  in  consequence  of  rolling 
against  the  Massachusetts  and  otherwise 
the  Stillwater  was  damaged  and  strained. 
On  August  26,  in  obedience  to  orders  and 
against  the  protest  of  the  captain,  the  Still- 
water was  placed  alongside  the  Obdam,  in 
the  harbor  of  Ponce,  for  the  transfer  of 
commissary  stores  from  the  latter  to  her. 
The  ships  both  rolled  and  the  Stillwater 
[204]  thumped  heavily,  and  was  badly  in- 
jured. On  September  3,  at  Ponce,  the  Span- 
ish steamship  Vasco  ran  into  the  Stillwater 
in  the  nighttime,  doing  some  damage,  and 
finally,  about  three  weeks  later,  the  Still- 
water went  agroimd  on  a  sand  bar  and  a 
hole  afterwards  was  found  in  her  bottom. 
The  bill  for  the  repairing  of  the  Stillwater 
was  rendered  in  a  lump  sum,  showing  only 
the  cost  as  a   whole. 

By  the  charter  party  made  on  May  12, 
1908,  art.  I.,  the  claimant  "does  hereby 
grant  and  let"  and  a  quartermaster  of  the 
Army  "does  hereby  take"  the  vessel  for 
the  voyages  specified,  "and  for  such  longer 
time  as  she  may  be  required  in  the  military 
service  of  the  United  States,  not  to  extend 
beyond"  June  30,  1898,  unless  the  charter 
shall  be  renewed.  II.  "The  said  vessel  shall, 
on  the  IGth  day  of  May,  eighteen  hundred 
and  ninety-eight,  be  ready  to  load  and  re- 
ceive on  board  at  New  Orleans,  Louisiana, 
or  elsewhere,  whenever  tendered  alongside, 
by  the  quartermaster.  United  States  Army, 
or  his  agent,  only  such  troops,  persons,  ani- 
mals, and  supplies  or  cargo  as  he  shall 
order  and  direct,  and  as  the  said  vessel  can 
conveniently  stow  and  carry,"  reserving 
room  for  the  vessel's  cables  and  materials, 
for  officers  and  crew,  and  for  the  necessary 
eoal;  and  when  so  laden  is  to  deliver  the 
cargo  at  such  port  as  the  Quartermaster's 
Department  may  direct,  "in  good  order  and 
condition  (the  dangers  of  the  seas,  fire,  and 
navigation,  and  the  restraints  of  princes 
and  rulers  being  always  excepted)."  i\\ 
'^The  said  vessel  now  is  and  shall  be  kept 
••  L.  ed. 


and  maintained  while  in  the  service  of  the 
United  States,  tight,  stanch,  strong,  and 
well  and  sufficiently  manned,  victualed, 
tackled,  appareled,  and  ballasted,  and  fur- 
nished in  every  respect  fit  for  merchant  or 
transport  service,  at  the  cost  and  charge 
of  her  owner.  The  time  lost  in  consequence 
of  any  deficiency  in  these  respects,  and  in 
making  repairs  to  said  vessel  not  attribut- 
able to  the  fault  of  the  United  States  or 
[805]  its  agents,  is  not  to  be  paid  for  by 
the  United  States."  V.  All  port  charges  and 
pilotage  after  leaving  New  Orleans  will  be 
paid  by  the  United  States,  but  not  the 
wages  of  any  person  employed  by  the  claim- 
ant continuously  on  the  vessel  as  pilot. 
VL  "The  war  risk  shall  be  borne  by  the 
United  States;  the  marine  risk  by  the  own- 
er." VII.  The  United  SUtes  is  to  furnish 
fuel  "until  the  said  vessel  is  returned  to 
the  said  company  at  New  Orleans,  I^uisi- 
ana,  in  the  same  order  as  when  received, 
ordinary  wear  and  tear,  damage  by  the  ele- 
ments, collision  at  sea  and  in  port,  burst- 
ing of  boilers  and  breakage  of  macliinory 
excepted."  VIII.  All  water  is  to  be  fur- 
nished by  the  government,  and  all  cargo 
loaded  and  unloaded  at  its  expense.  X.  The 
vessel  is  valued  at  $125,000,  and  if  retained 
in  the  service  of  the  United  States  so  long 
that  the  money  paid  under  the  charter 
(less  the  cost  of  running  and  keeping  in 
repair  and  a  net  profit  of  33  per  cent  on 
the  appraised  value)  is  equal  to  the  ap- 
praised value,  the  vessel  is  to  become  the 
property  of  the  United  States  without  fur- 
ther payment  except  what  then  may  be  due 
for  services  under  the  charter.  XI.  The 
United  States  also,  during  the  charter,  may 
purchase  the  vessel  at  its  appraised  value, 
with  a  similar  clause  for  deductions.  In 
XIII.  and  XIV.  there  are  provisions  for 
renewal  and  against  a  transfer  of  the  con- 
tract or  any  interest  therein  by  the  claim- 
ant. These,  we  believe,  are  all  the  portions 
of  the  charter  party  material  to  the  present 
case. 

The  main  contest  is  upon  the  question 
whether  by  this  contract  the  United  Stat(*s 
became  owner  pro  hac  vice,  as  affecting  the 
extent  of  the  liability  assumed.  The  claim- 
ant relies  upon  the  words  'grant  and  let" 
on  the  one  side  and  "take"  on  the  other,  the 
fixing  of  the  price  at  which  the  United 
States  may  purchase  the  vessel,  the  refer- 
ence to  the  vessel  being  "returned,"  the 
contemplation  that  the  need  of  repairs  may 
be  attributable  to  the  fault  of  the  United 
SUtes,  the  control  of  the  United  [206] 
States  over  the  destination  of  the  ship,  and 
some  details,  as  showing  that  the  United 
States  was  in  the  place  of  the  owner  for  the 
time.  But  we  cannot  accept  this  conclusion. 
The  general  owner  furnished  the  crew  and  a 

229 


206,  207 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm» 


master  who  at  least  regarded  himself  as 
representing  its  interests,  since  he  protested 
against  commands  that  he  received.  It 
agreed  to  deliver  the  cargo  in  good  con- 
dition, dangers  of  the  sea,  etc.,  excepted. 
It  assumed  the  marine  risk.  We  deem  it 
plain  that  the  control  and  navigation  of  the 
vessel  remained  with  the  general  owner, 
although  the  directions  in  which  it  should 
proceed  were  determined  hy  the  United 
States.  Authority  to  direct  the  course  of  a 
third  person's  servant  does  not  prevent  his 
remaining  the  servant  of  the  third  person. 
Standard  Oil  Co.  v.  Anderson,  212  U.  S. 
215,  53  L.  ed.  480,  29  Sup.  Ct.  Rep.  252; 
Little  V.  Hackett,  116  U.  S.  366,  29  L.  ed. 
652,  6  Sup.  Ct.  Rep.  391 ;  Reybold  v.  United 
SUtes,  15  Wall.  202,  21  L.  ed.  57.  We  con- 
elude  that  the  possession  followed  the  navi- 
gation and  control.  The  case  resembles 
Morgan  ▼.  United  Stotes,  14  Wall.  531,  20 
L.  ed.  738,  not  United  States  v.  Shea,  152 
U.  S.  178,  38  L.  ed.  403,  14  Sup.  Ct.  Rep. 
519,  as  in  the  latter  it  was  found  that  the 
vessel  was  under  the  exclusive  management 
and  control  of  the  Quartermaster's  Depart- 
ment. See  further  Hooe  v.  Groverman,  1 
Cranch,  214,  237,  3  L.  ed.  86,  93;  Reed  v. 
United  States,  11  Wall.  591,  20  L.  ed.  220. 

The  claimant  contends,  however,  that  if 
the  ship  was  not  demised,  the  United  States 
is  liable  under  articles  IV.  and  VII.  for 
not  returning  the  ship  in  the  same  order  as 
when  received,  and  for  demurrage  due  to 
repairs  attributable,  as  it  is  contended 
these  were,  to  the  fault  of  the  United 
States.  The  damage,  however,  for  the  most 
part,  was  due  proximately  to-  marine  risks, 
which  the  claimant  assumed.  Morgan  v. 
United  Stotes,  14  Wall.  531,  20  L.  ed.  738. 
The  demurrage  accrued  after  November  2, 
the  date  on  which  it  is  found  that  the  char- 
ter was  ended.  How  much  of  it  was  due  to 
damage  from  marine  risks  does  not  appear. 
The  service  in  aid  of  the  Massachusetts  and 
others  outside  the  contract,  if  any,  imposed 
no  liability  upon  the  [207]  United  Stotes. 
United  Stotes  v.  Kimbal,  13  Wall.  636,  20  L. 
ed.  503;  Reybold  v.  United  Stotos,  15  Wall. 
202,  21  L.  ed.  57;  Schillinger  v.  United 
Stotes,  155  U.  S.  163,  39  L.  ed.  108,  15 
Sup.  Ct.  Rep.  85;  Harley  v.  United  Stotes, 
198  U.  S.  229,  234,  49  L.  ed.  1029,  1030, 
25  Sup.  Ct.  Rep.  634;  Peabody  v.  United 
Stotes,  231  U.  S.  530,  539,  58  L.  ed.  351, 
353,  34  Sup.  Ct.  Rep.  159.  We  see  no 
ground  except  the  impression  that  this  is 
a  hard  case  to  apply  the  principle  of  United 
Stotes  y.  Russell,  13  Wall.  623,  20  L.  ed. 
474. 

Judgment  affirmed. 

Mr.  Justice  McReynolds  took  no  part  In 
the  consideration  or  decision  of  this  case. 
ISO 


PHILUP  WAGNER,  Incorporated,  Plff.  in 

Err., 


V. 


OSCAR  LESER,  A.  B.  Cunningham,  and 
John  Gill,  Jr.,  Judges  of  the  Appeal  Tax 
Court  of  Baltimore  City,  and  Jacob  W. 
Hook,  Tax  Collector  of  Baltimore  City. 

(See  S.  C.  Reporter's  ed.  207-220.) 


Constitutional  law  —  due  process  of  law 

—  paving  tax  —  benefits  already  ac- 
crued. 

1.  A  special  assessment  levied  under 
the  authority  of  Md.  Laws  1912,  chap.  688, 
upon  property  benefited  by  improved  paving, 
does  not  toke  property  without  due  process 
of  law,  contrary  to  U.  S.  Const.,  14th 
Amend.,  because  the  special  benefits  for 
which  it  was  levied  had  long  since  accrued. 
[For    other    cases,    see    Constitotional    Luw, 

561-581.  993-1000,  In  Digest  Sup.  Ct.  1908.] 

Constitutional  law  —  due  process  of  law 

—  paving  tax  ^-  use  of  fund. 

2.  The  intention  to  use  in  pavinff  other 
streets  in  the  city  the  fund  created  by  a 
special  assessment  levied  under  the  author- 
ity of  Md.  Laws  1912,  chap.  688,  upon  prop- 
erty benefited  by  improved  paving,  does  not 
render  the  assessment  obnoxious  to  the  due 
process  of  law  clause  of  U.  S.  Const.,  14t1i 
Amend.,  so  long  as  there  was,  as  to  the 
property  so  assessed,  a  benefit  formerly  con- 
ferred and  still  existing,  which  it  had  de- 
rived at  the  public  expense. 

[For    other    cases,    see    Constitutional    Law, 
661-681,  in  Digest  Sup.  Ct.  1908.] 

NoTB. — ^As  to  what  constitutes  due  process 
of  law,  generally — see  notes  to  People  v. 
O'Brien,  2  L.R.A.  255;  Kuntz  v.  Sumption, 
2  L.R.A.  655;  He  Gannon,  5  L.R.A.  d.j»; 
Ulman  v.  Baltimore,  11  L.U.A.  224;  Oilman 
V.  lucker,  13  L.K.A.  304;  Pearson  v.  Yew- 
dall,  24  L.  ed.  U.  S.  436;  and  Wilson  v. 
North  Carolina,  42  L.  ed.  U.  S.  865. 

As  to  tax  or  assessment  for  public  im- 

Srovements  on  highway — see  note  to  Gra- 
am  V.  Detroit,  44  L.R.A.(N.S.)  836. 

On  notice  and  hearing  required,  generally, 
to  constitute  due  process  of  law — see  notes 
to  Kuutz  V.  Sumption,  2  L.R.A.  657;  Chau- 
vin  V.  Valiton,  3  L.R.A.  194;  and  Ulman  v. 
Baltimore,  11  L.R.A.  225. 

On  landowner's  right  to  notice  and  hear- 
ing for  assessment  on  a  public  improve- 
ment— see  note  to  Chicago,  M.  k  St.  P.  R. 
Co.  V.  Janesville,  28  L.R.A.(N.S.)   1201. 

On  necessity  of  special  benefit  to  sustain 
assessments  for  local  improvements — see 
note  to  Re  Madera  Irrig.  Dist.  Bonds,  14 
L.R«A.  766. 

As  to  whether  an  assessment  of  benefite 
may  rest  upon  prospectivje  action  in  com- 
pleting improvement — see  note  to  Kansas 
City  V.  St.  Louis  k  S.  F.  R.  Co.  28  L.RJL 
(N.S.)   669. 

On  notice  of  proceedings  after  jurisdic- 
tion has  attached  as  a  condition  of  due 
process  of  law — see  note  to  Griggs  v.  Han- 
son, 52  L.R.A.(N.S.)  1161. 

2S»  U.  8. 


1916. 


WAGNER  y.  LESER. 


Constitutional  law  —  due  process  of  law 
—  pavlne  tax  —  notice  and  hearing. 

3.  Notice  and  hearing  as  to  the  amount 
and  extent  of  benefits  conferred  is  not  es* 
•ential  to  the  Talidity  under  the  due  process 
of  law  clause  of  U.  8.  Const.,  14th  Amend., 
of  the  provisions  of  Md.  Laws  1912,  chap. 
688,  directing  that  profjerty  adjoining  or 
abutting  on  any  public  highway  in  the  city 
of  Baltimore,  paved  with  improved  paving, 
should,  accordinff  to  the  width  of  the  pav- 
ing in  front  of  the  respective  properties,  be 
assessed  at  a  certain  sum  per  foot  front. 
(For  other  cases,  see  Constltotlonal  Law. 
T45-7C3,  in  Digest  Sup.  Ct.  1908.] 


[No.  28.] 

Argued  October  25  and  26,  1915. 
November  29,  1915. 


Decided 


IN  KKHOR  to  the  Court  of  Appeals  of  the 
State  of  Maryland  to  review  a  decree 
which  reversed  a  decree  of  the  Circuit  Court 
of  Baltimore  City,  overruling  the  demurrer 
to  a  bill  to  enjoin  an  assessment  for  a  public 
improvement.    Affirmed. 

See  same  case  below,   120  Md.   671,  87 
Atl.  1040. 
The  facts  are  stated  in  the  opinion. 

Messrs.  George  Washington  Williams 
and  Charles  J.  Bonaparte  argued  the 
cause,  a:ul,  with  Mr.  John  Holt  Richardson, 
filed  a  brief  for  plaintiff  in  error: 

For  the  fundamental  principles  underly- 
ing special  assessments,  see  Cooley,  Const. 
Law,  p.  36 ;  Den  ex  dem.  Murray  ▼.  Hoboken 
Land  &  Improv.  Co.  18  How.  272,  15  L.  ed. 
372;  Ulman  v.  Baltimore,  72  Md.  692,  11 
L.R.A.  224,  20  AU.  141,  21  Atl.  700;  Nor- 
wood T.  Baker.  172  U.  S.  278,  43  L.  ed. 
447,  19  Sup.  Ct.  Rep.  187;  State,  Agens, 
Prosecutor,  v.  Newark,  37  N.  J.  L.  423,  18 
Am.  Rep.  729;  Thomas  v.  Gain,  35  Mich. 
162,  24  Am.  Rep.  535;  Stuart  v.  Palmer, 
74  N:  Y.  183,  30  Am.  Rep.  289;  Dill.  Mun. 
Corp.  §  761. 

To  levy  special  assessments  conformably 
to  the  Maryland  statute  would  be  to  utterly 
disregard  the  fundamental  principle  under- 
lying and  authorizing  special  assessmenta 

Norwood  y.  Baker,  172  U.  S.  278,  43  L. 
cd.  447,  19  Sup.  Ct.  Rep.  187;  25  Am.  k 
Eng.  Enc.  Law,  1176;  Bennett  v.  Seibert, 
10  Ind.  App.  380,  35  N.  £.  35,  37  N.  E. 
1071;  Spaulding  t.  Baxter,  25  Ind.  App. 
490,  58  N.  E.  551;  Galveston  H.  k  S.  A. 
R.  Co.  T.  Green,  —  Tex.  Civ.  App.  — ,  35 
8.  W.  819;  Holliday  t.  AtlanU,  96  Ga. 
181,  23  S.  £.  406 ;  Kelly  v.  Luning,  76  CaL 
309,  18  Pac.  335;  Bennett  v.  Emmetsburg, 
138  Iowa,  67,  115  N.  W.  588;  Pease  v. 
Chicago,  21  111.  500;  Dorathy  v.  Chicago, 
S3  HL  79;  Re  Market  Street,  49  Cal.  546; 
Alfred  t.  Dallas,  —  Tex.  Civ.  App.  — ,  36  I 
8.  W.  816;  Cool^9  Taxn.  p.  1155.  ' 

60  L.  ed. 


The  front-foot  rule,  when  made  applicable 
to  the  city  as  a  whole,  is  arbitrary,  inequi- 
table, unjust,  and  oppressive. 

White  V.  Gove,  183  Mass.  333,  67  N.  B. 
359;  Ulman  v.  Baltimore,  72  Md.  594,  11 
LJRJ^.  224,  20  Atl.  141,  21  AU.  700;  Clapp 
T.  Hartford,  35  Conn.  66;  Doughten  v.  Cam- 
den, 72  N.  J.  L.  451,  3  L.R.A.(N.S.)  817, 
111  Am.  St.  Rep.  680,  63  AtL  170,  6  Ann. 
Gas.  902. 

The  constitutional  provision  that  no  per- 
son shall  be  deprived  of  life,  liberty,  or 
property  without  due  process  of  law  ex- 
tends to  every  governmental  proceeding 
which  may  interfere  with  personal  or  prop- 
erty rights,  whether  the  proceeding  be  1^- 
islative,  judicial,  administrative,  or  execu- 
tive. 

8  Cyc.  1083;  Holden  y.  Hardy,  169  U.  S. 
366,  42  L.  ed.  780,  18  Sup.  Ct.  Rep.  383; 
Den  ex  dem.  Murray  v.  Hoboken  Land  k 
Improv.  Co.  18  How.  272,  15  L.  ed.  372; 
Ulman  v.  Baltimore,  72  Md.  587,  11  L.R.A. 
224,  20  Atl.  141,  21  Atl.  709;  Clark  v. 
Mitchell,  69  Mo.  627;  United  States  t. 
Cruikshank,  92  U.  S.  542,  23  L.  ed.  588; 
Cooley,  Const.  Lim.  505. 

This  provision  was  intended  to  secure 
the  individual  from  the  arbitrary  exercise 
of  the  powers  of  government,  unrestrained 
by  the  established  principles  of  private 
rights  and  distributive  justice. 

Bank  of  Columbia  v.  Okely,  4  Wheat. 
235-244,  4  L.  ed.  559-561. 

The  words  "by  the  law  of  the  land,"  as 
used  in  the  Constitution,  do  not  mean  a 
statute  passed  for  the  purpose  of  working 
the  wrong. 

Cooley,   Const.   Lim.   p.   503. 

A '  notice  should  have  been  given  even 
though  the  apportionment  was  made  by  the 
legislature;  certainly,  in  view  of  the  op- 
pressiveness and  arbitrariness  of  the  rule 
established  by  .the  legislature,  and  its  im- 
just  and  unequal  operation  in  this  case,  a 
notice  should  have  been  required,  and  in 
its  absence  the  act  should  be  held  uncon- 
stitutional. ^ 

8  Cyc.  1108;  25  Jim.  k  Eng.  Enc.  Law, 
1173,  1174;  Maryland  Trust  Co.  v.  Balti- 
more, 125  Md.  40,  93  Atl.  454. 

If  the  property  was  to  be  specially  as- 
sessed, the  amount  specially  assepsed,  to- 
gether with  the  amount  to  be  raised  by 
general  taxation,  should  only  equal  the 
cost  price  of  the  improvement. 

Maryland  Trust  Co.  v.  Baltimore,  supra. 

When  the  overplus  beyond  benefits  from 
these  local  improvements  is  laid  upon  a  few 
landowners,  such  citizens,  with  respect  to 
such  overplus,  are  required  to  defray  more 
than  their  share  of  the  public  outlay,  and 
the  coercive  act  is  not  within  the  proper 
scope  of  the  taxing  power. 

ISl 


SUPREME  COURT  OF  THE  UNITED  STATES. 


OOT.  TtMM, 


Norwood  V.  Baker,  172  U.  S.  278,  43  L. 
ed.  447,  19  Sup.  Ct.  Rep.  187 ;  State,  Agens, 
Prosecutor,  y.  Newark,  37  N.  J.  L.  415,  18 
Am.  Rep.  720. 

Mr.  8.  8.  Field  argued  the  cause  and 
filed  a  brief  for  defendants  in  error: 

The  whole  subject  of  special  assessments 
is  dealt  with  in  an  exhaustive  note  to  the 
ease  of  Chicago,  M.  &  St.  P.  R.  Co.  v.  Janes- 
.ville,  28  L.R.A.(N.S.)    1124. 

The  legislature  has  wide  discretion  in 
sheeting  and  classifying  the  property  to  be 
made  subject  to  a  special  tax. 

1  Cooley,  Taxn.  3d  ed.  pp.  76,  77;  Daly 
T.  Morgan,  60  Md.  462,  1  L.RJL.  757,  16 
AU.  287;  Miller  v.  Wicomico  County,  107 
Md.  442,  69  Atl.  118;  Joesting  v.  Balti- 
more, 97  Md.  589,  55  Atl.  456;  Sams  v. 
Fisher,  106  Md.  167,  66  Atl.  711;  Freder- 
ick County  V.  Frederick,  88  Md.  654,  42 
Atl.  218;  Luman  v.  Plitchens  Bros.  Co. 
90  Md.  25,  46  L.R.A.  393,  44  Atl.  1051;  1 
Cooley,  Taxn.  3d  ed.  78;  Gray,  Limitations 
of  Taxing  Power,  §  1440;  Hagar  v.  Recla- 
mation Dist.  Ill  U.  S.  705,  28  L.  ed.  671, 
4  Sup.  Ct.  Rep.  663. 

The  legislature  has  a  wide  discretion  as 
to  the  method  of  fixing  the  amount  of  the 
charge  on  each  property. 

Alexander  v.  Baltimore,  5  Gill,  384,  46 
Am.  Dec.  630;  Louisville  &  N.  R.  Co.  ▼. 
Barber  Asphalt  Paving  Co.  197  U.  S.  430, 
433,  434,  40  L.  ed.  819-821,  25  Sup.  Ct.  Rep. 
466;  Hyattsville  y.  Smith,  105  Md.  318,  66 
Atl.  44;  Bassett  v.  Ocean  City,  118  Md. 
120,  84  Atl.  262;  Chicago,  M.  &  St.  P.  R. 
Co.  v.  Janesville,  28  L.R.A.(N.S.)  1127, 
note;  Baltimore  v.  Johns  Hopkins  Hospital, 
56  Md.  32;  Spencer  v.  Merchant,  125  U.  S. 
353,  31  L.  ed.  766,  8  Sup.  Ct.  Rep.  921. 

When  the  act  specifies  the  amount  of 
the  tax,  it  is  a  decision  by  the  legislature 
that  the  property  affected  is  benefited  to  the 
amount  of  the  tax,  and,  ii  the  absence  of 
a  clear  showing  that  the  tax  is  arbitrary  or 
oppressive,  the  l^islative  decision  is  conclu- 
sive on  the  courts. 

Parsons  v.  District  of  Columbia,  170  U. 
S.  52,  42  L.  ed.  946,  18  Sup.  Ct.  Rep.  521; 
Schenley  v.  Allegheny,  25  Pa.  128;  Smith 
V.  Worcester,  182  Mass.  235,  59  L.R.A. 
728,  65  X.  E.  40;  Spencer  v.  Merchant,  125 
U.  S.  353,  31  L.  ed.  766,  8  Sup.  Ct.  Rep. 
921;  Baltimore  v.  Johns  Hopkins  Hospital, 
56  Md.  28;  Hyattsville  v.  Smith,  105  Md. 
323,  06  Atl.  44;  Baltimore  v.  Hanson,  61 
Md.  464;  People  ex  rel.  Grifiin  v.  Brooklyn, 
4  N.  Y.  442,  55  Am.  Dec.  266,  quoted  and 
approved  in  2  Cooley,  Taxn.  1199-1201; 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Janesville, 
28  L.R.A.(N.S.)  1151,  note;  Louisville  A 
N.  R.  Co.  V.  Barber  Asphalt  Paving  Co. 
197  U.  S.  433,  444,  49  L.  ed.  821,  822,  25 
Sup.  Ct.  Rep.  406;  Bassett  v.  Ocean  City, 
118  Md.  120,  84  Atl.  262. 


Where  the  amount  of  the  tax  ia  left  to 
be  fixed  by  commissioners,  notice  and  an  op- 
portunity  to  be  heard  must  be  given;  but 
where  the  legislature  itself  fixes  the  amount 
of  the  tax,  no  notice  is  necessary. 

Hagar  v.  Reclamation  Dist.  Ill  U.  8. 
701,  28  L.  ed.  569,  4  Sup.  Ct  Rep.  663; 
Spencer  ▼.  Merchant,  126  U.  S.  356,  31 
L.  ed.  767,  8  Sup.  Ct.  Rep.  921;  Parsons 
V.  District  of  Columbia,  170  U.  S.  50-56, 
42  L.  ed.  945-948,  18  Sup.  Ct.  Rep.  ;{21; 
Wight  V.  Davidson,  181  U.  S.  380-383,  45 
L.  ed.  904-906,  21  Sup.  Ct.  Rep.  616;  Chi- 
cago, M.  k  St.  P.  R.  Co.  V.  Janesville,  137 
Wis.  7,  28  L.R.A.(N.S.)  1132.  118  N.  W. 
182. 

The  legislature  may  provide  a  compre- 
hensive scheme  of  paving,  and  levy  a  speci- 
fied tax  per  front  foot  on  abutting  prop- 
erty. 

Gray,  Limitations  of  Taxing  Power,  §§ 
1889,  1892,  1893;  Parsons  v.  District  of 
Columbia,  170  U.  S.  46.  52,  56,  67,  42  L. 
ed.  943,  946-948,  18  Sup.  Ct.  Rep.  521; 
People  ex  rel.  Scott  v.  Pitt,  169  N.  Y.  521, 
58  L.R.A.  372,  62  N.  £.  662;  Chicago,  M. 
k  St.  P.  R.  Co.  V.  Janesville,  28  L.K.A. 
(N.S.)  1124,  and  note,  137  Wis.  7,  118  N. 
W.  182;  Baltimore  v.  Johns  Hopkins  Hos- 
pital 56  Md.  33;  Baltimore  ▼.  Stewart,  92 
Md.  552,  48  Atl.  165;  Louisville  &  N.  R. 
Co.  V.  Barber  Asphalt  Paving  Co.  197  U. 
S.  434,  49  L.  ed.  821,  25  Sup.  Ct.  Rep. 
466;  Leominster  v.  Conant,  139  Mass.  384, 
2  N.  E.  690;  Heavner  v.  Elkins,  231  U.  S. 
743,  68  L.  ed.  463,  34  Sup.  Ct.  Rep.  318; 
Schaefer  v.  Werling,  188  U.  S.  616,  47  L. 
ed.  670,  23  Sup.  Ct.  Rep.  449;  Detroit  v. 
Parker,  181  U.  S.  399,  46  L.  ed.  917,  21 
Sup.  Ct.  Rep.  624;  Bassett  v.  Ocean  City, 
118  Md.  123,  84  Atl.  262. 

The  legislature  may  incorporate  into  such 
general    plan    an    improvement    previously 
made,   and   levy  the   specified   tax   on   the« 
property  abutting  thereon. 

Leominster  v.  Conant,  139  Mass.  384,  2 
N.  £.  690;  Parsons  v.  District  of  Columbia, 
170  U.  S.  67,  42  L.  ed.  948,  18  Sup.  Ct. 
Rep.  521. 

The  special  tax  or  assessment  may  be 
levied  after  the  improvement  is  made. 

Gray,  Limitations  of  Taxing  Power,  §§ 
128,  1828  and  cases  in  note  4,  2003 ;  Hall  v. 
Street  Comrs.  177  Mass.  434,  59  N.  E.  68; 
Warren  v.  Street  Comrs.  187  Mass.  292, 
72  N.  E.  1022;  Chester  y.  Pennell,  169  Pa. 
300,  32  Atl.  408;  Gorton  v.  Chicago,  201 
111.  634,  66  N.  E.  641;  Spencer  v.  Merchant, 
126  U.  S.  346,  31  L.  ed.  764,  8  Sup.  Ct  Rep. 
921 ;  Seattle  v.  Kelleher,  195  U.  S.  351,  49 
L.  ed.  232,  26  Sup.  Ct.  Rep.  44;  Hamilton, 
Special  Assessments,  §  828;  Baltimore  v. 
Ulman,  79  Md.  482,  30  Atl.  43,  affirmed  in 

2S9  U.  8. 


1915. 


WAQNER  ▼.  LESER. 


165  U.  S.  719,  41  L.  ed.  1184,  17  Sup.  Ct. 
Bep.  1001. 

The  special  tax  or  assessmeot  may  be 
lericd  though  the  property  has  changed 
kinds  since  the  improvement. 

Chicago,  M.  &  St.  P.  R.  Co.  ▼.  Janesville, 
137  Wis.  7,  28  L.RJL.(N.S.)  1169,  118  N. 
W.  182;  Seattle  v.  Kelleher,  195  U.  S.  351, 
40  L.  ed.  232,  25  Sup.  Ct.  Rep.  44;  Spencer 
T.  Merchant^  125  U.  S.  346,  31  L.  ed.  764, 
8  Sup.  Ct.  Rep.  921;  1  Cooley,  Taxn.  3d 
ed.  527,  note  1;  Tallman  y.  Janesville,  17 
Wis.  76;  Leominster  ▼.  Conant,  139  Mass. 
384,  2  Atl.  690;  Parsons  v.  District  of 
Columbia,  170  U.  S.  57,  42  L.  ed.  948,  18 
Sup.  Ct.  Rep.  521;  Chester  v.  Pennell,  169 
Pt.  300,  32  Atl.  408;  Butler  t.  Toledo,  5 
Ohio  St.  231. 

That  the  act  may  result  in  some  inequali- 
ties does  not  affect  its  validity.  Approxi- 
ffltte  equality  is  all  that  is  attainable. 

Chicago,  M.  k  St.  P.  R.  Co.  v.  Janesville, 
137  Wis.  7,  28  L.R.A.(N.S.)  1128,  118  N. 
W.  182;  Hagar  v.  Reclamation  Dist.  Ill  U. 
S.  705,  28  L.  ed.  571,  4  Sup.  Ct.  Rep.  663; 
People  ex  rel.  Scott  v.  Pitt,  169  N.  Y.  528, 
58  L.R.A.  372,  62  N.  £.  662;  Louisville  k 
N.  R.  Co.  V.  Barber  Asphalt  Paving  Co.  107 
U.  S.  433,  444,  49  L.  ed.  821,  822,  25  Sup. 
a  Rep.  466. 

The  legislature  has  full  power  to  levy  a 
tax  directly  without  any  assessing  agency. 

Caltimore  v.  State,  105  Md.  7,  65  Atl. 
360,  11  Ann.  Cas.  716;  Faust  v.  Twenty- 
Third  German  American  Bldg.  Asso.  84  Md. 
192,  35  Atl.  890. 

Except  as  limited  by  the  Constitution, 
the  power  of  the  legislature  to  tax  is  abso- 
lute. 

Faust  V.  Twenty -Third  German  American 
Bldg.  Abso.  supra;  Chicago,  M.  k  St.  P.  R. 
Co.  V.  Janesville,  137  Wis.  7,  28  L.RJI. 
(N.S.)  1127,  118  N.  W.  182;  Alexander  v. 
Baltimore,  5  Gill,  384,  46  Am.  Dec.  630; 
Hyattsville  v.  Smith,  105  Md.  323,  66  Atl. 
44. 

The  statute  is  presumed  to  be  valid  and 
eannot  be  declared  void  unless  it  violates 
lome  provision  of  the  Constitution,— every 
reasonable  doubt  is  to  be  resolved  in  its 
lavor. 

Cooley,  Const.  Lim.  7th  ed.  pp.  236,  237, 
253;  Ogden  y.  Saunders,  12  Wheat.  200.  6 
L  ed.  625;  Sharpless  v.  Philadelphia,  21 
Pa.  162,  59  Am.  Dec.  759. 

levying  a  tax  on  property  is  not  a  taking 
of  property. 

Wight  V.  Davidson,  181  U.  S.  385,  45  L. 
ed.  906,  21  Sup.  Ct.  Rep.  616;  French  v. 
Barber  Asphalt  Paving  Co.  181  U.  S.  324, 
337-^5,  45  L.  ed.  879,  887-890,  21  Sup. 
Ct  Rep.  625;  Gray,  Limitations  of  Taxing 
Power,  §  1963 ;  Louisville  k  N.'  R.  Co.  v. 
Barber  Asphalt  Paving  Co.  197  U.  S.  430, 
•0  L.  ed. 


49  L.  ed.  819,  25  Sup.  Ct.  Rep.  466;  Chicago, 
M.  k  St.  P.  R.  Co.  V.  Janesville,  137  Wis. 
7,  28  L.R.A.(N.S.)  1146,  118  N.  W.  182; 
Chadwick  v.  Kelley,  187  U.  S.  543,  544,  47 
L.  ed.  294,  295,  23  Sup.  Ct.  Rep.  175. 

The  present  tax  is  justified,  just  as  in  the 
Ulman  Case,  not  only  because  the  city  has 
spent  money  in  the  past  on  the  street  on 
which  the  taxpayer's  property  abuts,  but 
it  is  also  justified  on  the  ground  that  the 
benefit  is' there  now,  a  continuing  one.  The 
improved  pavement  is  there,  and  the  city  is 
bound  to  maintain  it  as  an  improved  pave- 
ment. The  city  could  not,  if  it  desired, 
take  up  the  improved  pavement  and  put 
down  cobblestones. 

4  Dill.  Mun.  Corp.  5th  ed.  1710;  25  Am.  k 
Eng.  Enc.  Law,  2d  ed.  1179. 

The  Maryland  statute  is  supported  by 
ample  precedent  and  authority. 

Baltimore  v.  Johns  Hopkins  Hospital,  56 
Md.  33;  Baltimore  v.  Stewart,  92  Md.  552, 
48  Atl.  165;  Leominster  v.  Conant,  139 
Mass.  386,  2  N.  E.  690;  Gray,  Limitations 
of  Taxing  Power,  §§  1889-18U3;  Parsons  v. 
District  of  Columbia,  170  U.  S.  45,  42  L. 
ed.  943,  18  Sup.  Ct.  Rep.  521;  People  ex 
rel.  Scott  V.  Pitt,  169  N.  Y.  521,  58  L.R.A. 
372,  62  N.  £.  662. 

The  authorities  lay  down  the  proposition 
broadly  that  a  tax  may  be  based  upon  a 
past  consideration;  that  a  local  tax  or  as- 
sessment may  be  levied  for  an  improvement 
previously  made  and  paid  for ;  without  mak- 
ing any  distinction  as  to  whether  or  not  a 
previous  abortive  attempt  to  tax  had  been 
made. 

Seattle  v.  Kelleher,  195  U.  S.  359,  40  L. 
ed.  235,  25  Sup.  Ct.  Rep.  44;  Hamilton, 
Special  Assessments,  §  823;  Leominster  v. 
Conant,  139  Mass.  386,  2  N.  £.  690;  1 
Cooley,  Taxn.  402;  Gray,  Limitations  of 
Taxing  Power,  §§  1035,  2003;  1  Page  k  J. 
Assessments,  §§  407,  416;  State,  JellifT, 
Prosecutor,  v.  Newark,  48  N.  J.  L.  102,  2 
Atl.  627;  Hamilton,  Special  Assessments,  § 
823 ;  Re  Assessment  of  Lands,  60  N.  Y.  398 ; 
Ricketts  v.  Hyde  Park,  85  111.  110;  Howell 
V.  Buffalo,  37  N.  Y.  274;  Re  Van  AntwcrjN 
56  N.  Y.  266;  Hall  v.  Street  Comrs.  177 
Mass.  439,  59  N.  £.  68. 

The  legislature  may  levy  a  special  tax  on 
account  of  an  improvement  previously  made 
and  paid  for  out  of  a  loan  or  the  general 
levy. 

State,  Jelliff,  Prosecutor,  v.  Newark,  48 
N.  J.  L.  101,  2  Atl.  627;  Re  O'Mara,  194 
Pa.  86,  45  Atl.  127;  Prince  v.  Boston,  111 
Mass.  231;  Davis  v.  Newark,  54  N.  J.  L. 
146,  23  Atl.  276;  Re  Roberts,  81  N.  Y.  62. 

The  legislature  can  adopt  and  sanction 
an  improvement  or  an  expenditure  which 
it  could  previously  authorize.  It  may  au- 
thorise an  assessment  for  an  improvement, 


211-213 


SUPBBME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tfeu, 


either  before  or  after  the  improvement  U 
made,  as,  in  its  judgment,  is  deemed  best. 

Re  Sackett»  D.  k  DeO.  Streets,  74  N.  Y. 
106 ;  Butler  v.  Toledo,  5  Ohio  St  226 ;  Zahn 
T.  Rutherford,  72  N.  J.  L.  446,  60  Atl.  1123; 
Alcorn  t.  flamer,  38  Miss.  653;  Cleveland 
T.  Tripp,  13  R.  I.  60. 

A  distinction  exists  between  the  power 
of  the  legislature  and  the  power  of  the  city. 

Hyattsville  t.  Smith,  106  Md.  325,  66 
AU.  44;  Parsons  T.  District  of  ^Columbia, 
170  U.  S.  61,  52,  42  L.  ed.  946,  18  Sup.  Ct. 
Rep.  621. 

It  may  be  that  property  once  assessed  for 
a  part  of  the  cost  of  a  street  paving  could 
not  again  be  taxed  for  the  same  improve- 
ment; that  it  might  be  considered  two  suc- 
cessive taxes  for  one  benefit,  and  therefore 
double  taxation.  But  where  the  property 
has  never  paid  anything  (except  the  gen- 
eral taxes  paid  by  other  property  not  so 
benefited),  the  special  tax  is  not  a  double 
tax. 

26  Am.  k  Eng.  Enc  Law,  2d  ed.  1174, 
1176. 

If  the  property  abutting  on  a  vitrified 
brick  pavement  has  only  paid  the  general 
tax  rate  imposed  on  all  property,  it  has 
not  contributed  anything  more  to  the  cost 
of  the  pavement  upon  which  it  abuts  than 
property  abutting  upon  cobblestone  streets; 
it  has  simply  paid  the  same  as  other  prop- 
erty, not  enjoying  such  special  benefit,  to 
the  general  fund  for  the  support  of  the  gov- 
ernment, and  has  paid  nothing  for  the  spe- 
cial benefit.  The  fact  that  it  helps  to  pay 
in  the  general  levy  the  interest  and  sinking 
fund  on  the  loan  furnishes  no  ground  for 
the  objection  to  a  special  assessment. 

1  Page  &  J.  Assessments,  §  416. 

Two  successive  taxes  for  one  benefit  are 
not  illegal. 

4  Dill.  Mun.  Corp.  6th  ed.  §  1469 ;  Butler 
T.  Toledo,  6  Ohio  St.  231;  Earl  v.  Board  of 
Improvement,  70  Ark.  211,  67  S.  W.  312. 

Wherever  the  legislature  commits  the  as- 
sessment or  apportionment  to  a  commission 
or  subordinate  body,  notice  or  an  oppor- 
tunity to  be  heard  is  necessary  where  the 
legislature  directly  levies  the  tax. 

Spencer  v.  Merchant,  126  U.  S.  348,  31  L. 
ed.  764,  8  Sup.  Ct.  Rep.  921;  Bassett  v. 
Ocean  City,  118  Md.  120,  84  Atl.  262;  Par- 
sons V.  District  of  Columbia,  170  U.  S.  54, 
42  L.  ed.  947,  18  Sup.  Ct.  Rep.  621;  Hagar 
V.  Reclamation  Dist.  Ill  U.  S.  701,  28  L. 
ed.  669,  4  Sup.  Ct.  Rep.  663. 

Messrs.  S.  S.  Field  and  Alexander  Preston 
filed  a  separate  brief  for  defendants  in  error. 

Bir.  Justice'  Day  delivered  the  opinion 
of  the  court: 

Phillip  Wagner,  a  corporation,  filed  its 
bill  on  behalf  of  itself  and  otiier  taxpayers 
3S4 


owning  property  in  Baltimore  city,  adjoin- 
ing or  abutting  upon  a  public  hi^way 
which  has  been  paved  with  improved  par- 
ing without  having  been  assessed  for  any 
part  of  the  cost  thereof,  and  who  are  simi- 
larly situated  with  the  complainant,  who 
is  the  owner  of  certain  real  estate,  im- 
proved by  seven  two-story  dwelling  houses, 
situated  on  Philadelphia  road,  a  public 
highway  within  the  limits  of  Baltimore 
[212]  city,  whidi  property  abuts  and  ad- 
joins upon  the  public  highway,  which  had 
been  paved  with  improved  paving,  to  «irity 
vitrified  brick,  which  property,  or  its  pres- 
ent or  former  owner*  had  never  been 
specially  assessed  for  any  part  of  the 
cost  of  said  improved  paving.  The  bill  was 
filed  for  the  purpose  of  enjoining  the 
enforcement  of  a  certain  act  of  the  gen- 
eral assembly  of  the  state  of  Mary- 
land (1906,  chapter  401;  1008,  chapter 
202,  of  the  Laws  of  Maryland),  by  which 
statute  the  general  assembly  enacted  that  a 
special  tax  be  levied  and  imposed  upon 
property  in  the  city  of  Baltimore  bene- 
fited by  improved  paving  of  the  amount 
specified;  said  tax  to  continue  as  to  each 
property  for  ten  years  from  the  time  it  at- 
tached thereto,  the  proceeds  to  be  used  for 
improved  paving  in  the  city  of  Baltimore, 
as  provided  in  the  act.  The  act  provided 
that,  for  these  purposes,  all  landed  prop- 
erty in  the  city  of  Baltimore,  adjoining  or 
abutting  upon  any  public  highway  which 
had  been  or  should  thereafter  be  paved 
with  improved  paving  without  special 
assessment  of  any  part  of  the  cost  upon 
the  abutting  or  adjoining  property  owners, 
by  the  city  of  Baltimore  or  the  state  roads 
commission,  or  other  public  commission  or 
agency,  or  by  said  city  and  such  commis- 
sion or  agency,  or  by  either  or  both,  and 
any  railroad  or  railway  company,  occupy- 
ing with  tracks  a  portion  of  such  highway, 
was  declared  to  be  specially  benefited  by 
such  improved  paving  to  an  extent  greater 
than  the  entire  amount  of  the  special  tax 
levied  under  the  act.  The  property  so 
benefited  was  divided  into  three  classes: 
Class  A  to  include  all  landed  property  In 
the  city  of  Baltimore,  adjoining  or  abut- 
ting upon  a  public  highway  paved  with 
improved  paving  and  having  a  width  of  not 
less  than  30  feet  so  paved;  C^lass  B  to  in- 
clude all  such  landed  property  in  the  city 
of  Baltimore  adjoining  or  abutting  upon  a 
public  highway  paved  with  improved  pav- 
ing and  having  a  width  of  less  than  SO  feet, 
and  [213]  not  less  than  16  feet,  so  paved; 
Class  C  to  include  all  such  landed  property 
in  the  city  of  Baltimore  adjoining  or  aboi- 
ting  upon  any  public  highway  paved  with 
improved  paving  and  having  a  width  of  leM 
than   16  feet  so  paved.     The  appeal  tax 

1S»  V.  s. 


1915. 


WAONIR  T.  LB8SB. 


213-210 


court  of  the  eitj  of  Baltimore  U  authorized 
and  directed  by  the  act  to  proceed  to  clat- 
tUj  and  liftt  for  taxation,  as  provided  by 
the  aet»  for  the  year  1913,  all  landed  prop* 
erty  in  the  city  of  Baltimore  which,  on  the 
1st  day  of  November,  1012,  was  in  a  situ- 
ation to  come  under  the  requirements  of 
either  of  said  classes.  Before  classifying 
any  property  under  the  special  tax  provided 
in  the  act,  the  appeal  tax  court  was  re- 
fuired  to  give  notice  to  the  owner  of  the 
property,  designating  a  certain  time  when 
the  owner  might  appear  before  the  court 
and  be  heard  with  reference  to  the  liabil- 
ity of  his  property  for  the  lax,  and  the 
class  to  which  it  properly  belonged.  After 
having  given  the  owner  reasonable  notice 
and  an  opportunity  to  be  beard,  the  appeal 
tax  court  is  required  to  proceed  to  make 
the  elassification  provided,  and  to  certify 
their  action,  in  making  such  classification, 
to  the  city  collector  in  the  same  manner 
as  in  cases  of  classification  of  real  and 
leasehold  property  in  the  annex  for  the  dif- 
ferent rates  of  taxation  as  provided  under 
the  act  relating  thereto;  and  the  city  col- 
lector is  authorized  to  add  the  special  tax 
to  the  tax  bills  of  the  property,  to  be  called 
''special  paving  tax,"  and  to  collect  the 
same  in  the  manner  as  ordinary  taxes  on 
real  estate  are  collected.  The  city  collector 
is  required  to  account  for  and  pay  over  to 
the  comptroller,  to  be  by  him  deposited 
with  the  city  register,  and  to  be  placed  to 
the  credit  of  a  new  paving  fund  provided  in 
the  Acts  of  1906,  chapter  401,  and  1008, 
diapter  202,  and  to  be  exclusively  appli- 
cable to  the  cost  of  the  work  authorized  by 
said  acts,  or  by  any  amendment  or  amend- 
ments thereof.  Section  3  of  the  act  defines 
improved  paving  to  mean  any  substantial, 
smooth  paving  above  the  grade  [214]  of 
ordinary  macadam,  and  to  include  granite 
or  Belgian  brocks,  vitrified  brick  or  blocks, 
wood  blocks,  asphalt  or  concrete  blocks, 
sheet  asphalt,  bitulithie  bituminous  macad- 
am and  bituminous  concrete.  Section  4 
specifics  the  amount  of  the  special  tax  to 
be  as  follows:  On  all  property  embraced 
fai  Class  A,  15  cents  per  year  per  front 
fOot  or  lineal  foot  adjoining  or  abutting 
upon  the  public  highway;  on  all  property 
embraced  in  Class  B,  10  cents  per  year 
per  front  foot  or  lineal  foot  adjoining  or 
abutting  upon  the  publie  highway;  and  on 
all  property  embraced  in  Class  C,  0  cents 
per  year  per  front  foot  or  lineal  foot  ad- 
joining or  abutting  upon  the  public  high- 
way. 

The  bill  recites  that,  under  and  by  virtue 
of  that  act,  chapter  688  of  the  Acts  of  1912, 
the  general  assembly  has  attempted  to  levy 
and  impose  upon  the  property  of  the  plain- 
tiff and  other  property  owners  similarly 
••  L.  ed. 


situated,  taxes  under  the  three  classes  men- 
tioned, and  that  the  appeal  tax  oourt  of 
Baltimore  is  proceeding  now  to  list  and 
classify  for  taxes  the  property  so  attempt- 
ed to  be  levied  upon  by  said  act»  and  has 
classified  said  property  of  the  plaintiff, 
designating  it  as  belonging  to  Class  A. 
The  bill  then  sets  forth  various  grounds 
upon  which  it  is  elaimed  the  act  is  illegal, 
the  one  with  which  this  court  is  concerned 
being  that  it  is  in  violation  of  the  14th 
Amendment  to  the  Constitution  of  the 
United  SUtes. 

The  act  of  1906,  to  which  reference  is 
made  in  the  act  just  recited,  chapter  401, 
as  amended  by  chapter  202  of  the  Acts  of 
1908,  provides  for  the  creation  of  a  pav- 
ing commisnion  for  the  city  of  Baltimore, 
with  powers  to  carry  out  a  plan  for  a  com- 
plete system  of  improved  paving  of  the 
streets  of  the  city.  The  court  of  appeals 
in  its  opinion  in  this  case  states  that  a 
fund  of  $5,000,000  was  procured  by  means 
of  a  loan  provided  for  this  purpose,  which 
loan  was  approved  by  the  people  at  an  elec- 
tion held  on  the  2d  of  May,  1911,  and  that 
the  act  was  sustained  [215]  by  the  court  of 
appeals  in  the  case  of  Bond  v.  Baltimore, 
118  Md.  159,  84  Atl.  258;  and  that  tlie  ob- 
ject and  purpose  of  the  act  of  1912  was  to 
raise  an  additional  fund  of  $5,000,000,  to 
complete  the  plan  adopted  by  the  city  for 
improved  pavements  throughout  the  city, 
and  that  this  is  to  be  done  by  a  special  pav- 
ing tax  upon  property  in  the  city  specially 
benefited  by  improved  paving  as  provided 
in  the  act. 

The  bill  was  demurred  to  upon  certain 
grounds:  that  the  complainant  had  an  ade- 
quate remedy  at  law;  that  the  act  of  1912 
in  question  did  not  violate  the  Constitution 
of  the  United  States  or  the  Constitution  or 
Bill  of  Rights  of  the  sUte  of  Maryland; 
that  the  houses  of  the  plaintiff  were  enjoy- 
ing special  benefit  and  advantage,  fronting 
upon  a  street  improved  with  vitrified  brick 
pavement,  while  other  houses  in  the  city 
are  upon  unhealthy  and  unsightly  cobble- 
stone streets,  for  which  special  advantage 
the  charge  put  upon  the  houses  of  the  plain- 
tiff by  the  act  in  question  amounts  to  $1.80 
per  year  upon  each  of  the  houses,  or  $18 
upon  each  house  for  the  entire  ten  years. 
The  demurrer  sets  forth  certain  other  rea- 
sons why  a  court  of  equity  should  not  in- 
tervene, not  necessary  to  repeat.  The  de- 
murrer was  overruled  in  the  circuit  court 
of  Baltimore  city,  and  upon  appeal  to  the 
court  of  appeals  of  Maryland,  that  court 
reversed  the  lower  court  and  sustained  the 
constitutionality  of  the  act  as  against  the 
attacks  thereon  both  under  the  state  and 
Federal  Constitutions.  (120  Md.  671,  87 
AtL  1040.) 

1S5 


215>218 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbbm, 


We  will  notice  -such  matters  as  are 
deemed  necessary  in  order  to  dispose  of  the 
contentions  concerning  the  alleged  violation 
of  rights  secured  to  the  complainant  under 
the  Federal  Constitution.  The  provision  of 
that  instrument  to  which  appeal  is  made  by 
the  complainant  is  the  14th  Amendment  in 
the  protection  secured  thereunder  against 
state  action  which  has  the  effect  to  deprive 
of  property  without  due  process  of  law. 
This  [216]  court  has  frequently  affirmed 
that  the  general  taxing  systems  of  the  state 
are  not  to  be  presumed  lacking  in  due  proc- 
ess of  law  because  of  inequalities  or  objec- 
tions, so  long  as  arbitrary  action  is  avoided. 
It  is  not  the  purpose  of  the  14th  Amendment 
to  interfere  with  the  discretionary  power 
of  the  states  to  raise  necessary  revenues 
by  imposing  taxes  and  assessments  upon 
property  within  their  jurisdictions. 

It  is  first  contended  that  the  complainant 
is  deprived  of  its  property  without  due 
process  of  law,  because  the  special  assess- 
ment levied  upon  its  property  -is  for  the 
special  benefits  long  since  accrued,  and  that 
the  statute  under  consideration  is  retro- 
spective in  its  operation,  thereby  disturb- 
ing rights  which  had  accrued  to  and  become 
fixed  in  the  property  holders  lon^ir  before 
the  passage  of  the  statute;  that  tiie  state 
had  no  authority  because  of  benefits  thus 
long  since  conferred  to  make  the  assessment 
in  question.  But  we  deem  this  contention 
foreclosed  by  the  decision  of  this  court  in 
Seattle  v.  Kelleher,  105  U.  S.  351,  49  L.  ed. 
232,  25  Sup.  Ct.  Rep.  44.  In  that  case  it 
was  contended  that  there  could  be  no  valid 
assessment  for  a  certain  improvement,  be- 
cause it  was  levied  after  the  work  was  com- 
pleted; but  this  court  met  that  contention 
by  saying: 

"The  principles  of  taxation  are  not  those 
of  contract.  A  special  assessment  may  be 
levied  upon  an  executed  consideration;  that 
is  to  say,  for  a  public  work  already  done. 
Bellows  V.  Weeks,  41  Vt.  690,  609,  600; 
Mills  V.  Charleton,  29  Wis.  400,  413,  9 
Am.  Rep.  578;  Hall  v.  Street  Comrs.  177 
Mass.  434,  430,  50  N.  E.  68.  If  this  were 
not  so  it  might  be  hard  to  justify  reassess- 
ments. See  Norwood  v.  Baker,  172  U.  S. 
269,  293,  43  L.  ed.  443,  4.52,  19  Sup.  Ct. 
Rep.  187;  Williams  v.  Albany  County,  122. 
U.  S.  154,  30  L.  ed.  1088,  7  Sup.  Ct.  Rep. 
1244;  Frederick  ▼.  Seattle,  13  Wash.  428, 
43  Pac.  364;  Cline  ▼.  Seattle,  13  Wash. 
444,  43  Pac.  367;  Bacon  v.  Seattle,  15  Wash. 
701,  47  Pac.  1102;  Cooley,  Taxn.  3d  ed. 
1280.  ...  Of  course,  it  does  not  matter 
that  this  is  called  a  reassessment.  A  re- 
assessment may  [217]  be  a  new  assessment. 
Whatever  the  legislature  could  authorize  if 
it  were  ordering  an  assessment  for  the  first 
time  it  equally  could  authorize,  notvvith- 
286 


standing  a  previous  invalid  attempt  to 
sess.  The  previous  attempt  left  the  city 
free  'to  take  such  steps  as  were  within  its 
power  to  take,  either  under  existing  stat- 
utes, or  under  any  authority  that  might 
thereafter  be  conferred  upon  it,  to  make  a 
new  assessn^ent  upon  the  plaintiff's  abut- 
ting property'  in  any  constitutional  way. 
Norwood  V.  Baker,  172  U.  S.  269,  293,  43 
L.  ed.  443,  452,  19  Sup.  Ct.  Rep.  187; 
McNamee  v.  Tacoma,  24  Wash.  591,  64  Pac. 
791;  Annie  Wright  Seminary  v.  Tacoma, 
23  Wash.  109,  62  Pac.  444." 

The  doctrine  established  by  this  case  is 
that  a  subsequent  assessment  may  be  levied 
because  of  benefits  conferred  by  the  former 
action  of  the  city  in  improving  in  front  of 
the  lots  assessed.  As  said  in  the  Kelleher 
Case,  "the  benefit  was  there  on  the  ground 
at  the  city  expense."  So  far  as  any  Federal 
constitutional  requirement  is  concerned,  the 
state  might  exercise  its  authority  to  assess 
because  of  this  special  benefit,  although 
that  assessment  was  deferred  for  some  time 
after  the  work  was  done  at  the  public  ex- 
pense. And  these  considerations  suggest 
the  answer  to  another  objection  made  in 
this  connection,  that  it  is  proposed  to  use 
the  assessments  for  paving  other  streets 
within  the  city.  It  is  true  that  the  assess- 
ments are  to  go  into  the  general  fund  pro- 
vided for  such  general  use.  But  we  are 
unable  to  see  how  the  constitutional  rights 
of  the  complainant  are  violated,  so  long  as 
there  was  as  to  it  a  benefit  formerly  con- 
ferred, and  still  existing,  which  the  prop- 
erty had  derived  at  the  public  expense.  The 
fact  that  the  city  was  authorized  to  use 
the  assessment  in  creating  a  public  fund, 
in  aid  of  its  scheme  to  pave  other  streets 
of  the  city,  was  a  public  purpose,  and  a 
legitimate  one,  for  which  funds  of  the  city 
might  be  used. 

It  is  further  urged,  and  much  stress  seems 
to  be  laid  [218]  upon  this  point,  that  the 
complainant  and  others  similarly  situated 
were  given  no  oppoi*timity  to  be  heard  as 
to  the  amount  of  benefits  conferred  upon 
theiu,  and  the  proper  adjustment  of  the 
taxes  among  property  owners.  But  this 
question,  like  the  other,  is  foreclosed  bj 
the  former  decisions  of  this  court.  This 
assessment,  and  the  classification  of  the 
property  to  be  improved,  were  fixed  and 
designated  by  legislative  act.  It  was  de- 
clared that  the  property  which  had  been  im- 
proved by  paving  theretofore  should,  ac- 
cording to  the  width  of  the  paving  in  front 
of  the  respective  properties,  be  assessed  at 
a  certain  sum  per  foot  front.  We  think 
such  a  tax,  when  levied  by  the  legislature, 
did  not  require  notice  and  a  hearing  as  to 
the  amount  and  extent  of  benefits  conferred 
in  order  to  render  the  legislative  action  due 

280  U.  8. 


s 


1916. 


WAGNER  ▼.  LESER. 


218-220 


proccM  of  law  within  the  meaning  of  the 
Federal  Constitution.  In  Spencer  v.  Mer- 
chant, 125  U.  8.  345,  356,  31  L.  ed.  763, 
768,  8  Sup.  Ct.  Rep.  921,  this  court,  speak- 
ing bj  Mr.  Justice  Gray,  said: 

"In  the  absence  of  any  noore  specific  con- 
stitutional restriction  than  the  general  pro- 
hibition against  taking  property  without 
due  process  of  law,  the  legislature  of  the 
state,  having  the  power  to  fix  the  sum 
necessary  to  be  leried  for  the  expense  of  a 
public  improvement,  and  to  order  it  to 
be  assessed,  either  like  other  taxes,  upon 
property  generally,  or  only  upon  the  lands 
bedefited  by  the  improvement,  is  authorised 
to  determine  both  the  amount  of  the  whole 
tax,  and  the  class  of  lands  which  will  re- 
ceive the  benefit  and  should  therefore  bear 
the  burden,  although  it  may,  if  it  sees  fit, 
commit  the  ascertainment  of  either  or  both 
of  these  facts  to  the  judgment  of  oommis- 
donera." 

This  case  has  been  followed  and  approved 
in  subsequent  decisions  in  this  court.  Par- 
sons V.  District  of  Columbia,  170  U.  S.  45, 
50,  56,  42  L.  ed.  943,  945,  947,  18  Sup.  Ct 
Rep.  521 ;  French  v.  Barber  Asphalt  Paving 
Co.  181  U.  S.  324,  343,  45  L.  ed.  879,  889, 
21  Sup.  Ct.  Rep.  625.  In  the  latter  case,  the 
former  cases  in  this  court  were  reviewed 
at  length,  and  Spencer  v.  [219]  Merchant, 
quoted  with  approval;  Norwood  v.  Baker, 
172  U.  8.  269,  43  L.  ed.  443,  19  Sup.  Ct. 
Rep.  187,  was  commented  upon  and  distin- 
guished. French  v.  Barber  Asphalt  Paving 
Co.  supra,  was  followed  and  approved  in  a 
series  of  cases  in  the  same  volume: 
Wight  V.  Davidson,  181  U.  8.  871,  45  L.  ed. 
900,  21  Sup.  Ct.  Rep.  616;  Tonawanda  T. 
Lyon,  181  U.  8.  389,  45  L.  ed.  908,  21  Sup. 
Ct.  Rep.  609;  Webster  v.  Fargo,  181  U.  8. 
394,  45  L.  ed.  912,  21  Sup.  Ct.  Rep.  623; 
Cass  Farm  Co.  v.  Detroit,  181  U.  S.  396, 
45  L.  ed.  914,  21  Sup.  Ct  Rep.  644;  Detroit 
V.  Parker,  181  U.  8.  399,  45  L.  ed.  917, 
21  Sup.  Ct.  Rep.  624;  Wormley  v.  District 
of  Cohimbia,  181  U.  8.  402,  45  L.  ed.  921, 
21  Sup.  Ct  Rep.  609;  Shumate  v.  Heman, 
181  U.  S.  402,  45  L.  ed.  922,  21  Sup.  Ct. 
Rep.  645;  Farrell  v.  West  Chicago  Park, 
181  U.  S.  404,  45  L.  ed.  924,  21  Sup.  Ct 
Hep.  609;  French  v.  Barber  Asphalt  Paving 
Co.  supra,  was  referred  to  with  approval  in 
Hibben  v.  Smith,  191  U.  S.  310,  326,  48  L. 
ed.  195,  201,  24  Sup.  Ct.  Rep.  88.  See  also 
LottisvUle  k  N.  R.  Co.  v.  Barber  Asphalt 
Paving  Co.  197  U.  S.  430,  49  L.  ed.  819, 
25  Sup.  Ct  Rep.  466;  Martin  v.  District  of 
ColumbU,  205  U.  8.  135,  51  L.  ed.  743,  27 
Sup.  Ct  Rep.  440. 

Norwood  V.  Baker,  supra,  is  much  relied 
upon  by  the  plaintiff  in  error,  and  while 
60  L«  ed. 


this  court  has  shown  no  disposition  to 'over- 
rule that  case  when  limited  to  the  decision 
actually  made  by  the  court,  much  that  is 
said  in  it  roust  be  read  in  connection  with 
the  subsequent  cases  in  this  court  already 
referred  to.  In  Norwood  v.  Baker,  a  por- 
tion of  a  person's  property,  located  in  a 
village  of  Ohio,  was  condemned  for  street 
purposes,  and  the  entire  cost  of  opening 
the  street,  including  the  amount  paid  for 
the  strip  condemned,  with  the  costs  and 
expenses  of  condemnation,  was  assessed  up- 
on the  abutting  property  owner  whose  land 
was  condemned.  This,  it  was  said  in 
French  v.  Barber  Asphalt  Paving  Co.  supra, 
was  an  abuse  of  the  law  and  an  act  of  con- 
fiscation, and  not  a  valid  exercise  of  the 
taxing  power.  Taking  the  decisions  in  this 
court  together,  we  think  that  it  results 
that  the  legislature  of  a  state  may  de- 
termine the  amount  to  be  assessed  for  a 
given  improvement,  and  designate  the  lands 
and  property  benefited  thereby,  upon  which 
the  assessment  is  to  be  made,  without  first 
giving  an  opportunity  to  the  owners  of  the 
property  to  be  assessed  to  be  heard  upon 
the  amount  of  the  assessment  or  the  ex- 
tent of  the  benefit  conferred. 

We  do  not  understand  this  to  mean  that 
there  may  [220]  not  be  cases  of  such  fia- 
grant  abuse  of  legislative  power  as  would 
warrant  the  intervention  of  a  court  of  equity 
to  protect  the  constitutional  rights  of  land- 
owners, because  of  arbitrary  and  wholly 
unwarranted  legislative  action.  The  con- 
stitutional protection  against  deprivation 
of  property  without  due  process  of  law 
would  certainly  be  available  to  persons  ar- 
bitrarily deprived  of  their  private  rights 
by  such  state  action,  whether  under  the 
guise  of  legislative  authority  or  otherwise. 
But  in  the  present  case  there  is  neither 
allegation  nor  proof  of  such  disproportion 
between  the  assessment  made  and  the  bene- 
fit conferred  as  to  suggest  that  the  small 
tax  levied  upon  this  property  would  amount 
to  an  arbitrary  exercise  of  the  legislative 
power  upon  the  subject.  There  can  be  no 
question  that  paving  with  brick  in  front 
of  the  property  of  the  complainant  con- 
ferred a  substantial  benefit,  and  gave  au- 
thority for  the  subsequent  legislation  which, 
because  of  that  benefit,  original  and  continu- 
ing, warranted  an  assessment  upon  the 
property  owner  for  a  confessedly  public 
purpose, — ^the  improvement  of  the  streets 
of  the  city. 

We  are  unable  to  find  that  the  act  of 
the  legislature  in  question,  or  the  manner 
of  its  present  enforcement,  operates  to  de- 
prive the  complainant  and  others  similarly 
situated  of  any  rights  secured  to  them  by 

187 


£20-228 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Teem, 


the  Federal  ConBtitution.  The  judgment  of 
the  Court  of  Appeals  of  Maryland  it  af- 
firmed. 

Mr.  Justice  Pitney  and  Blr.  Juatioe  Mc- 
Reynoldfl  dissent. 


[««1]  william  cramp  k  sons  ship 
sl    engin'b    buildinq    company, 

Appt., 

▼. 
UNITED  STATES. 

(See  S.  C.  Reporter's  ed.  221-233.) 

Appeal  —  from  court  of  claims  — ^  con- 
clusiveness of  finding  —  mutual  mis- 
take. 

Findings  of  fact  that  there  was  no 
mutual  mistake  in  the  execution  of  a  con- 
tract for  the  construction  of  a  battleship 
for  the  United  States,  And. of  a  release  to 
the  government,  conformably  t«  the  con- 
tract, of  all  claims  growing  out  of  the  per- 
formance of  such  contract,  are  conclusive 
upon  the  Federal  Supreme  Coutt  on  an  ap- 
peal from' a  decree  of  the  court  of  clainiB 
m  a  suit  brought  under  the  act  of  March  3, 
1887  (24  Stat,  at  L.  505,  chap.  359,  Comp. 
Stat.  1913,  §  1136),  upon  the  recommenda- 
tion of  the  Secretary  of  the  Navy,  given  pur- 
suant to  the  act  of  June  10,  1896  (29  Stat, 
at  L.  374,  chap.  399),  which,  upon  the 
ground  that  the  release  included  the  claim, 
ahd  that  the  contract  and  release  were  not 
subject  to  reformation,  dismissed  the  peti- 
tion of  the  contractor  for  the  recovery  of 
damages  from  the  government  on  account 
of  a  delay  alleged  to  be  the  latter's  fault. 
[For  other  cases,  see  Apiieal  and  Error.  4892- 
4902,  in  Digest  Sap.  Ct.  1908.1 

[No.  63.] 

Argued  November  8,  1915.    Decided  Novem- 
ber 29, 1916. 

APPEAL  from  the  Court  of  Claims  to  re- 
view a  judgment  which  dismissed  the 
petition  In  an  action  by  the  builders  of  a 
battleship  to  recover  damages  alleged  to 
have  grown  out  of  a  delay  caused  by  the 
Federal  government.  Affirmed. 
See  same  case  below,  46  Ct.  CI.  521. 

Statement  by  Mr.  Justice  Day; 

This  action  was  brought  in  the  court  of 
claims  to  recover  damages  on  account  of 
delay  alleged  to  be  the  fault  of  the  United 
States  iu  preventing  completion  according 
to  contract  of  the  battleship  Massachusetts. 
The  court  of  claims  dismissed  the  petition 
(46  Ct.  CI.  521). 

[222]  l^ge  sums  were  demanded  for  de- 
lays covering  other  periods  than  are  In- 
Tolved  in  this  appeal*  and  the  case  as  now 
1S8 


presented  concerns  the  right  to  recover  the 
sum  of  $27,984.99,  being  the  damages  which 
the  court  of  claims  found  accrued  to  the 
claimant  for  the  period  of  delay  after  Feb- 
ruary 1st,  1896,  for  the  period  of  three 
months  and  twenty-nine  days.  The  court  of 
claims  made  certain  findings  of  fact,  from 
which  it  appears  that,  after  the  making  of 
the  contract,  claimant  arranged  a  systematic 
working  program  for  the  construction  of 
the  vessel  within  the  contract  time,  and 
would  have  completed  the  vessel  within 
time  had  it  not  been  for  the  failure  of  the 
United  States  to  furnish  materials  to  prop- 
erly carry  on  the  work,  which,  by  the  terms 
of  the  contract,  they  had  agreed  to  furnish; 
that  by  reason  of  such  failure  of  the  govern- 
ment, the  completion  of  the  vessel  was  de- 
layed for  two  years,  six  months,  and  nine 
days  beyond  the  contract  period;  that  the 
armor  to  be  furnished  in  accordance  with 
said  clause  'was  obtained  by  the  United 
States  from  other  contractors,  who,  without 
any  fault  on  the  part  of  the  claimant, 
failed  to  complete  the  manufacture  thereof 
in  time  to  deliver  the  same  to  the  claim- 
ants as  they  had  agreed.  Omitting  the 
findings  covered  by  the  release  and  contract 
made  on  May  26th,  1896,  and  on  February 
1st,  1896,  and  the  amount  of  damages  ac- 
cruing for  such  delay,  as  to  the  sum  now  in 
controversy  the  court  found  that  on  No- 
vember 23d,  1896,  after  the  completion  and 
delivery  of  the  vessel  in  accordance  with 
the  sixth  paragraph  of  the  nineteenth  clause 
of  the  contract,  the  balance  of  the  amount 
due  thereunder,  but  held  in  accordance 
therewith  until  the  final  acceptance  of  the 
vessel,  was  paid  to  the  claimant,  and  the 
same  was  accepted  .and  a  release  approved 
by  the  Secretary  of  the  Navy  was  entered 
into  by  it  without  any  written  protest,  in- 
the  terms  following: 

Whereas  by  the  eleventh  clause  of  the  con- 
tract, [223]  dated  November  18,  1890,  by 
and  between  the  William  Cramp  &  Sons  Ship 
&  Engine  Building  Company,  a  corporation 
created  under  the  laws  of  the  state  of  Penn- 
sylvania, and  doing  business  at  Philadel- 
phia, in  said  state,  represented  by  the  presi- 
dent of  said  corporation,  party  of  the  first 
part,  and  the  United  States,  represented  by 
the  Secretary  of  the  Navy,  party  of  the 
second'  part,  for  the  construction  of  a  coast 
line  battleship  of  about  10,000  tons  dis- 
placement, which  for  the  purposes  of  said 
contract  is  designated  and  known  as  coast 
line  battleship  No.  2,  it  is  agreed  that  a 
special  reserve  of  sixty  thousand  dollars 
($60,000)  shall  be  held  until  the  vessel  has 
been  finally  tried,  provided  that  such  final 
trial  shall  take  place  within  five  months 

1S»  V.  8. 


1015.         WILLIAM  CRAMP  *  SONS  8.  &  £.  B.  00.  T.  UNITED  STATES.     22S-226 


from  and  after  the  date  of  the  preliminary 
aeeeptance  of  the  vessel;  and 

Whereas  by  the  sixth  paragraph  of  the 
nineteenth  clause  of  said  contract  it  is 
further  provided  that  when  all  the  con- 
ditioaa,  covenants,  and  provisions  of  said 
oontract  shall  have  been  performed  and  ful- 
filled by  and  on  the  part  of  the  party  of 
the  first  party  said  party  of  the  first  part 
shall  be  entitled,  wit|iin  ten  days  after  the 
filing  and  acceptance  of  its  claims,  to  receive 
the  said  special  reserve,  or  so  much  thereof 
as  it  may  be  entitled  to,  on  the  execution  of 
a  finnl  release  to  the  United  States  in  such 
f<»in  as  shall  be  approved  by  the  Secretary 
of  the  Kavy,  of  all  claims  of  any  kind  or 
description  under  or  by  virtue  of  said  con- 
tract; and 

Whereas  the  final  trial  of  said  vessel  was 
eompleted  on  the  24th  day  of  October, 
1806;  and 

Whereas  all  the  conditions,  covenants, 
and  provisions  of  said  contract  have  been 
performed  and  fulfilled  by  and  on  the  part 
of  the  party  of  the  first  part; 

Now,  therefore,  in  consideration  of  the 
premises,  the  sum  of  $57,536.60,  being  the 
balance  of  the  aforesaid  special  reserve  to 
which  the  party  of  the  first  part  is  entitled, 
being  to  me,  in  hand,  paid  by  the  United 
States,  [224]  represented  by  the  Secretary 
of  the  Navy,  the  receipt  whereof  is  hereby 
acknowledged,  the  William  Cramp  k  Sons 
Ship  k  Engine  Building  Company,  represent- 
ed by  me,  Charles  H.  Cramp,  president  of 
said  corporation,  does  hereby,  for  itself,  and 
its  successors  and  assigns,  and  its  legal 
representatives,  remise,  release,  and  forever 
dischaige  the  United  States  of  and  from  all 
and  all  manner  of  debts,  dues,  sum  and 
sums  of  money,  accounts,  reckonings,  claims, 
and  demands  whatsoever,  in  law  or  in 
equity,  for  or  by  reason  of,  or  on  account 
of,  the  construction  of  said  vessel  under 
the  contract  aforesaid. 

In  witness  whereof  I  have  hereunto  set 
my  hand  and  afiixed  the  seal  of  the  William 
Cramp  k  Sons  Ship  k  Engine  Building 
Company  this  23d  day  of-  November,  ▲•  o. 
1896. 

The  Wm.  Cramp  k  Sons  Ship  k  Engine 
Building  Company, 

Chas.  H.  Cramp,  President. 

(SeaL) 
Attest: 

Theodore  W.  Cramp, 
Assistant  Secretary. 

The  court  sets  forth  the  act  of  June  10, 
1890,1  referring  certain  claims  to  the  Secre- 


tary of  the  Navy  for  investigation  and  re- 
port, and,  in  part,  the  report  of  the  SeerC" 
tary,  made  December  0th,  1896,  as  follows: 

"I  have  considered  carefully  the  nature  of 
these  claims  [225]  and  the  circumstances 
out  of  whidi  they  arose,  and  while  not  at- 
tempting to  pass  on  the  merits  of  the  same, 
or  to  determine  the  amount,  if  any,  that 
should  be  allowed  on  account  of  the  matters 
mentioned,  the  fact  exists  that  there  was 
delay  in  the  completion  of  the  contracts 
beyond  the  time  prescribed  therein,  and 
that  such  delay  was,  in  some  measure,  at 
l^ast,  due  to  failure  on  part  of  the.  govern- 
ment to  obtain  and  furnish  the  contractors 
the  armor  for  the  vessela  as  required,  and 
in  my  judgment  the.  interests  of  justice 
demand  that  they  sliould  be  referred  to  the 
court  of  claims,  which  can  consider  these 
matters  with  more  deliberation  and  care 
than  could  be  devoted  to  them  by  the  com- 
mittees of  the  two  Houses  of  Congress  •  •  • 

''It  will  be  observed  that  the  contractors 
claim  relief  from  the  binding  force  of 
these  agreements  on  the  ground  that  the 
same  were  entered  into  by  them  under  dn* 


9f 


resa 

After  consideration,  the  court  finds  the 
items  of  cost  and  expense  during  the  period 
of  delay  now  under  consideration,  three 
months  and  twenty-nine  days,  after  Febru- 
ary Ist,  1896,  to  amount  to  the  sum  of 
$27,984.99,  as  already  stated,  and  further 
finds: 

"The  claimant  company  submits  for  the 
consideration  of  the  court  the  evidence  of 
the  then  Secretary  of  the  Navy  and  the 
president  of  the  claimant  company,  who 
signed  the  contract  on  behalf  qi  their  re- 
spective principals,  along  with  certain  other 
testimony,  taken  since* the  decision  in  the 
case  of  the  Indiana,  to  prove  that  at  the 
time  of  the  signing  of  the  contract  as  afore- 
said it  was  not  within  the  minds  of  the 
parties  so  signing  said  contract  that  the 
language  of  paragraph  six  of  the  nineteenth 
clause  of  said  contract,  to  wit:  'On  the 
execution  of  a  final  release  to  the  United 
States,  in  such  form  as  shall  be  approved 
by  the  Secretary  of  the  Navy,  of  all  claims 
of  any  kind  or  description  under  or  by 
virtue  of  this  contract,'  should  embrace 
claims  for  unliquidated  [220]  damages  of 
the  character  herein  sued  for,  and  that  in  so 
far  as  the  language  of  said  final  release  in- 
cludes such,  unliquidated  claims,  it  was  in- 
serted by  mistake,  inadvertence,  or  acci- 
dent, and  did  not  express  the  true  intent  of 
the  parties,  and  that  the  same  should  be 
so  reformed  as  to  exclude  such  claims. 


1  The  Secretary  of  the  Navy  is  herebv  au- 
tiiorized  and  directed  to  examine  claims 
against  the  government  which  may  be  pre- 
•0  Ii.  ed. 


sented  to  him  by  contractors  for  the  build- 
ing of  the  hulls  or  machinery  of  naval  ves- 
aeb  under  contracts  oompleted  since  Janu- 

MZ9 


226,  227 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbbk, 


''The  coutt,  after  due  eonsideration  of 
the  evidence  aforesaid  as  well  as  the  evi- 
dence adduced  on  behalf  of  the  defendants, 
finds  that  there  was  no  mutual  mistake  be- 
tween the  parties  in  the  execution  of  the 
contract  or  the  releases  thereunder ;  that  the 
language  of  said  contract  and  releases  ex- 
pressed the  intention  and  purpose  of  the 
United  States  as  previously  agreed  upon, 
though  the  contracting  party  on  behalf  of 
the  claimant  company  may  have  mistaken 
its  legal  rights  thereunder. 

"Upon  the  foregoing  findings  of  fact  the 
court  finds  the  ultimate  facts,  so  far  as 
they  are  questions  of  fact:  (1)  that  at  the 
time  of  the  execution  of  the  releases  set 
forth  in  finding  V.  the  claimant  company 
was  not,  by  reason  of  the  acts  or  delays  of 
tlie  government,  under  duress;  and  (2)  that 
there  was  no  mutual  mistake  between  the 
parties  in  the  execution  of  the  contract  or 
the  final  release  thereunder,  as  the  same 
expressed  the  true  intent  and  purpose  of 
the  United  States,  and  the  failure  of  the 
officers  of  the  claimant  company  to  appre- 
hend the  legal  effect  thereof  was  not  the 
fault  of  the  United  States  or  their  officers, 
and  that  therefore  the  same  are  not  the 
subject  of  reformation." 

As  a  conclusion  of  law,  the  court  decided 
on  the  authority  of  United  States  v.  Wil- 
liam Cramp  &  Sons  Ship  k  Engine  Bldg. 
Co.  206  U.  S.  118,  51  L.  ed.  983,  27  Sup. 

Mr.  Joseph  Gllflllan  argued  the  cause 
and  filed  a  brief  for  appellant: 

This  court  is  not  limited  to  the  findings 
and  the  conclusions  of  the  court  of  claims. 

United  States  v.  Old  Settlers,  148  U.  S. 
427,  37  L.  ed.  509,  13  Sup.  Ct.  Rep.  650; 
Harvey  v.  United  States,  105  U.  S.  671, 
26  L.  ed.  1206;  United  SUtes  v.  Clark,  96 
U.  S.  37,  24  L.  ed.  696. 

Without  admitting  verbal  evidence  to 
change  the  meaning  of  written  words,  the 
law  permits  verbal  evidence  to  show  what 
was  the  subject-matter  .  upon  which  the 
words  of  the  written  instrument  were  to 
operate. 

Peugh  V.  Davis,  96  U.  S.  332,  24  L.  ed.  775 ; 
Bride  V.  Brick,  98  U.  S.  514,  25  L.  ed.  256; 
Cabrera  v.  American  Colonial  Bank,  214  U. 
S.  224,  53  L.  ed.  974,  29  Sup.  Ct.  Rep.  623. 

When  reference  is  made  to  the  binding 
character  of  a  finding  of  fact  made  by  a 


master  or  a  court,  it  means  that  there  is 
evidence  upon  which  the  finding  can  rest. 
That  is  to  say,  the  master  or  the  court,  havr 
ing  had  an  opportunity  to  both  hear  and  see 
the  witnesses,  can  determine  on  which  side 
the  truth  lies;  but  there  must  be  some  evi- 
dence on  which  to  rest  the  master's  finding. 
If  there  is  in  effect  no  evidence  to  support 
his  finding,  then  the  finding  has  no  binding 
force  and  the  court  will  reverse  such  find- 
ing as  a  matter  of  course.  It  is  only  in  the 
case  of  confiicting  testimony  that  the  find- 
ing  of  the  master  or  the  court  is  entitled 
to  the  weight  that  is  usually  accredited  to 
it. 

Qrauel  v.  Wolfe,  185  Pa.  83,  39  Atl.  819. 

Assistant  Attorney  General  Thompson 
argued  the  cause  and  filed  a  brief  for  ap- 
pellee: 

The  release  comprehended  all  claims. 

United  States  v.  William  Cramp  &  Sons 
Ship  &  Engine  Bldg.  Co.  206  U.  S.  118,  127, 
51  L.  ed.  983,  986,  27  Sup.  Ct.  Rep.  676. 

The  language  of  the  release  clearly  ex- 
pressed the  intention  of  the  contracting  par- 
ties, and,  being  responsive  to  the  terms  of 
the  contract,  eliminates  questions  of  mutual 
mistake  or  duress. 

Delaware  k  H.  Canal  Co.  v.  Pennsylvania 
Coal  Co.  8  Wall.  276.  290.  19  L.  ed.  34^. 
353;  William  Cramp  &  Sons  Ship  k  Engine 
Bldg.  Co.  V.  United  SUtes,  216  U.  S.  494, 
54  L.  ed.  587,  30  Sup.  Ct.  Rep.  392. 

[227]  After  making  the  foregoing  state- 
ment Mr.  Justice  Day  delivered  the  opin- 
ion of  the  court: 

The  contract  in  this  case  and  the  release 
above  set  forth  are  in  the  form  shown  in 
United  States  v.  WiUiam  Cramp  k  Sons 
Ship  k  Engine  Bldg.  Co.  206  U.  S.  118,  51 
L.  ed.  983,  27  Sup.  Ct.  Rep.  676,  and,  ex- 
cept for  the  considerations  to  be  later  dealt 
with,  the  present  case  is  ruled  by  that  un- 
less relief  in  equity  can  be  had,  for  it  was 
there  held  that  a  release  executed  in  the 
matter  of  the  contract  for  the  battleship 
Indiana  included  all  claims  which  grew  out 
of  the  perfonnance  of  the  contract,  al- 
though not  arising  from  the  actual  con- 
struction of  the  vessel.  In  the  subsequent 
case  of  William  Cramp  k  Sons  Ship  k  En- 
gine Bldg.  Co.  V.  United  States,  216  U.  S. 
494,  54  L.  ed.  587,  30  Sup.  Ct.  Rep.  392, 
the  case  in  206  U.  S.  was  distinguished  be- 


ary  first,  eighteen  hundred  and  ninety-one, 
where  it  is  alleged  that  such  contractors 
have  been  subjected  to  loss  and  damage 
through  delays  in  the  work  under  said  con- 
tracts which  were  not  the  fault  of  said  con- 
tractors, but  were  due  to  the  action  of  the 
government,  and  to  report  to  the  next  aes- 
140 


sion  of  Congress  the  result  of  aaid  investiffs- 
tion,  and  whether  said  claims  are,  in  his 
opinion,  subjects  for  the  iurisdiction  of  the 
court  of  claims  or  for  the  action  of  Con- 
gress upon  the  same.  29  Stat  at  L.  chap. 
399,  p.  374. 

1S»  V.  ft- 


1U6.        WILLIAM  CRAHP  ft  SONS  S.  A  E.  B.  CO.  v.  UNITED  STATES.     887-229 

Mtue    of    the    different    form    ol    rele«M  ■  other  parpow  bj  the  uid  proceediuga  and 

oecuted   Id   that   ease,   which   contained   a  evidence." 

povieo  that  it  thould  not  Include  claima  In  view  ol  thia  state  of  the  record,  we 
arising  under  the  contract  other  than  those  are  met  with  the  question  whether,  in  cases 
vhleh  the  Secretary  of  the  Navj  had  juris-  coming  from  the  court  of  claims,  of  tho 
dtetion  to  entertain.  character  of  the  one  now  under  considera- 
Aa  the  recital  of  facts  definitely  ihows,  tion,  the  Sndingt  of  tact  are  coneluaive,  as 
tte  court  of  claima  found,  after  consider-  In  other  casea,  or  whether  it  is  the  duty  of 
atioD  of  the  evidi'Dce  adduced  upon  behalf  thia  court  to  determine  for  itself  from  the 
tt  the  clsimant  and  the  defendant,  that  evidence  sent  up  whether  the  claimant  la 
Iberc  was  no  mutual  mistake  between  the  entitled  to  equitable  relief  neceuary  to  the 
lartiea  in  the  execution  of  tlie  contract  and  eatabllahment  of  hia  claim.  The  cases  re- 
nlease,  and  that  the  contract  and  releaae  lied  up<w  which  it  ia  contesded  make  ft 
Otpreased  the  intention  and  purpose  ot  the  the  duty  of  this  court  to  independently 
United  States,  aa  previously  agreed  upon,  [220]  consider  the  evidence  are  Uarvey  v. 
Oough  the  contracting  par^  on  behalf  ot  United  States,  106  U.  B.  671,  26  L.  ed.  1206, 
the  claimant  company  had  mistaken  its  and  United  Statea  v.  Old  Settlers,  liS  V. 
kgal  righta.  Aa  ultimate  facts,  the  court  S.  42T,  37  L.  ed.  609,  13  Sup.  Ct.  Rep.  860, 
found,  so  far  aa  the  same  were  questions  which  we  shall  notice  later  on. 
af  fact,  that  there  waa  no  mutual  miatake  In  thia  case  the  Secretary  of  the  Navy, 
between  the  parties  in  the  execution  of  the  aa  it  appears  from  the  recital  of  the  facta, 
contract  or  the  final  release;  that  the  same  recommended  that  action  be  brought  in  the 
■ipreftaed  the  true  intent  and  purpose  ot  court  of  claims,  and  it  waa  accordingly  in- 
the  United  States,  and  that  the  failure  of  atftuted  in  that  court.  The  court  of  claima 
the  oGcers  ol  the  claimant  company  to  ap-  waa  given  jurisdiction  under  the  act  ol 
prehend  the  legal  effect  thereof  was  not  the  March  3,  18B7  (chap.  359,  |  1,  24  SUt 
fault  of  the  United  SUtes  or  ita  officera,  at  L.  606,  Comp.  SUt.  1913,  g  1136),  of 
tad  waa  not  the  aubject  ot  reformation,  all  claims  "founded  .  .  .  upon  any  con- 
If  we  are  governed  by  the  findings  of  fact  in  tract,  expressed  or  implied,  with  the  gov- 
this,  as  in  other  cases  [228]  coming  from  ernment  ot  the  United  States,  or  for  dam- 
tbe  court  of  claims,  these  flndinga  conclude  ages  liquidated  or  unliquidated,  in  cases 
the  question  ot  tact  as  to  whether  the  tes-  not  sounding  in  tort,  in  respect  of  which 
tlnony  warranted  a  refonnation  ot  the  con-  claima  the  party  would  be  entitled  to  re- 
tract upon  equitable  principles.  drees  against  the  United  Statea  either  in  • 
The  record  contains  a  stipulation,  signed  court  of  law,  equity,  or  admiralty  if  the 
ij  the  Assistant  Attorney  General  and  United  Statea  were  suable."  By  the  rule* 
Muuel  for  the  claimant,  in  which  it  ia  of  this  court,  the  record  from  Uie  court  of 
ncited  that  whereaa  one  of  the  questions  claims  la  required  to  contain  a  transcript 
railed  and  decided  by  the  judgment  of  the  of  the  pleadings  in  the  case,  of  the  final 
wart  of  claima  ia  the  right  of  the  claimant  judgment  or  decree  of  the  court,  and  of 
to  equitable  relief  through  the  reformation  such  interlocutory  orders,  rulings,  judg- 
of  the  contract  in  suit,  and  the  reformation  ments,  and  decrees  as  may  be  necessary  to 
ol  certain  releases,  and  that  evidence  was  a  proper  review  ot  the  caae,  and  a  finding 
iatroduced  in  behalf  ot  both  parties,  toucli-  by  the  court  of  claima  of  the  facta  in  the 
lag  the  facts  upon  which  the  claimant  caae  establiabed  by  the  evidence  in  the  na- 
toonded  its  claim  for  equitable  relief,  sub-  ture  of  a  special  verdict,  but. not  the  evi- 
JKt  to  the  detendant'a  objection,  and  be-  dence  eatabliahing  them.  These  facte  ars 
Oittie  the  record  was  very  voluminous  and  *«  ^  *•>"  ultimate  facta  established  by  the 
natained  the  report  of  many  proceedings  evidence,  and  not  the  evidence  upon  which 
W'relevant  to  the  right  to  equiUble  re-  **"  """"ate  facta  are  based.  Burr  v.  Dea 
IW,  oerUin  evidence  bearing  upon  that  ■""'""  «'  *  ^"'-  C»-  1  Wall.  99.  102,  17 
joint  waa  stipulated  into  the  record.  The  ^,*^-  ?"•  "",„.,.,  .  „  ,  .. 
WpnUlion  concluded:  "Providing,  how-  „ '°  ""  „T"  "'  °"*"'^*  "1  '^'T«i' „'" 
n*  «...  ™  .„„„.i  ™«.,.,.-.  -t.  11  k-  k  A  Barnes,  197  U.  S.  146,  49  L.  ed.  609,  26 
mr  that  on  •ppol  reoourae  shall  be  had  ^  .^  '^^^  ^^^^  ^^ 

ha,  record   of  the  proceeding,  and   evi-  ^/^,  Congress  pimitting  parties  to  su^ 

toe.  next  herembefore  mentioned,  for  no  ^jj  jhe  justice  of  their  claims  against  the 

pirpoie  whatsoever,  except  for  the  consider-  u„,t^  states  for  work  done  in  the  District 

"ion   and    determination    of   the   queatlon  ol  Columbia  to  the  adjudication  of  a  com- 

»ia  respect  to  the  claimant's  right  to  the  petent    court,    that    equiUble    jurisdiction 

^<iitahle  relief  aforesaid  i    it  being   under-  was   thereby   conferred   upon   the   court   of 

■lood  and  agreed  that  the  findinga  of  fact  claima;   sufficiently,  at  least,  to  order  the 

Bid  by  the  court  May  29,  1911,  shall  not  reformation  of  a  written  contract  between 

W  ilTectad  in  any  other  manner  or  for  any  the    oUimant    and    the    District,    KbA.   Ha 
•t  L.  ed.                                                       la  ^VV 


229-232 


SUPREldE  CXnjRT  OF  THE  UNITED  STATES. 


OOT.  Tkuc, 


award  a  money  judgment  on  the  contract 
8o  reformed.  In  that  case  it  was  said  that 
the  findings  of  fact  [230]  would  not  be  re- 
viewed in  this  court,  but  were  regarded  as 
conclusive  here,  and  that  this  court  would 
determine  the  questions  of  law  properly 
brought  to  its  attention  upon  such  findings. 
In  United  States  v.  Miiliken  Imprinting 
Co.  202  U.  S.  168,  60  L.  ed.  980,  26  Sup. 
Ct  Rep.  572,  which  was  a  suit  in  the  court 
of  claims  praying  for  the  reformation  of  a 
contract,  and  for  damages  for  breach  of 
the  same  as  reformed,  this  court  held  that 
the  court  of  claims,  under  the  act  of  March 
3,  1887,  had  jurisdiction  to  reform  the  con- 
tract as  a  basis  of  a  judgment  for  money 
damages.  In  United  States  v.  Sisseton  In- 
dians, 208  U.  S.  561,  52  L.  ed.  621,  28  Sup. 
Ct.  Rep.  352,  where  a  suit  was  brought 
under  a  special  act  of  Congress,  giving  the 
court  of  claims  jurisdiction  to  hear  testi- 
mony and  render  final  judgment,  this  court 
held  that  it  would  not  go  behind  findings 
of  fact  made  by  the  court  of  claims,  citing 
McClure  v.  United  States,  116  U.  S.  145, 
29  L.  ed.  572,  6  Sup.  Ct.  Rep.  321,  and 
District  of  Columbia  v.  Barnes,  supra.  In 
the  first  of  these  cases,  McClure  v.  United 
States,  a  motion  was  made  in  this  court  to 
order  the  court  of  claims  to  transmit  to 
this  court  all  the  evidence  upon  which  the 
case  was  heard  and  determined,  and,  in  de- 
fault of  sending  up  such  evidence,  to  make 
certain  findings.  .The  suit  was  brought 
under  a  special  act  of  Congress,  referring 
the  claims  of  one  Daniel  McClure  to  the 
court  of  claims,  with  jurisdiction  to  hear 
and  determine  the  same,  and,  if  the  court 
should  be  satisfied  that  moneys  charged 
against  said  McClure  as  Assistant  Pay- 
master General  were  not  in  fact  received 
by  him,  or  that  other  just  and  equitable 
grounds  existed  for  credits  claimed  by  him, 
to  make  a  decree,  setting  forth  the  amount 
to  which  McClure  was  entitled,  and  that  an 
appeal  should  be  allowed  to  either  party  as 
in  other  cases.  This  court,  after  setting 
forth  the  statutory  authority  of  this  court 
to  make  rules  and  regulations,  and  the 
rules  of  this  court  requiring  findings  of 
fact,  declined  to  make  the  order,  and  held 
that  when  Congress  passes  a  special  statute 
[231]  allowing  a  suit  to  be  brought  in  the 
court  of  claims,  with  the  right  of  appeal  to 
this  court,  the  appeal  will  be  governed  by 
the  rules  applicable  to  cases  arising  under 
the  general  jurisdiction  of  the  court,  unless 
provision  is  made  to  the  contrary  in  the 
special  act.  The  court  reviewed  the  case 
of  Harvey  v.  United  States,  supra,  and 
stated  that  it  was  under  a  special  statute 
141 


authorizing  the  court  of  claims  to  proceed 
in  the  adjustment  of  questions  between  the 
claimants  and  the  United  States  as  a 
court  of  equity  jurisdiction,  and,  accord- 
ing to  the  principles  of  equity  jurispru- 
dence, reform  such  contract  and  render  such 
judgment  as  justice  and  right  between 
the  claimants  and  the  government  might 
require.  This  court  said  that  the  appeal 
given  to  this  court  in  the  Harvey  Case, 
under  that  particular  statute,  was  an  ap- 
peal in  equity,  which  would  bring  up  for 
review  the  facts  as  well  as  the  law,  accord- 
ing to  equity  practice.  In  the  Old  Settlers 
Case,  supra,  the  action  was  brought  under 
a  special  act  of  Congress.  In  that  case  it 
was  held  that  it  was  the  intention  of  Con- 
gress by  such  special  act  to  confer  upon  the 
court  of  claims  the  unrestricted  latitude  of 
a  court  of  equity,  stating  an  account,  dis- 
tributing a  fund,  and  framing  a  decree,  and 
that  to  that  statute  the  doctrine  of  tite 
Harvey  Case  applied,  and  this  court  pro- 
ceeded to  examine  the  evidence,  after  stat- 
ing that  it  also  had  the  advantage  of  the 
findings  of  the  court  of  claims. 

The  present  case  was  brought  under  the 
jurisdiction  conferred  upon  the  court  of 
claims  as  in  other  cases.  It  is  true  that 
the  same  was  brought  upon  suggestion  of 
the  Secretary  under  the  act  of  1806,  re- 
quiring the  Secretary  to  report  whether, 
in  his  judgment.  Congress  should  act  or 
the  case  should  be  referred  to  the  court  of 
claims.  In  cases  within  the  general  juris- 
diction of  the  court  of  claims,  it  has  juris- 
diction to  reform  a  contract  for  the  purpose 
of  determining  whether  the  claim  if  estab- 
lished [232]  is  a  valid  one  against  the  Unit- 
ed States.  United  States  v.  Miiliken  Im- 
printing  Co.  supra.  There  is  no  good  reason 
which  authorizes  this  court  in  such  cases 
to  undertake  a  consideration  of  voluminous 
records  and  conflicting  testiiuony  to  de- 
termine a  matter  which  is  committed  to 
the  jurisdiction  of  the  court  of  claims  in 
exercising  the  authority  conferred  by  Con- 
gress upon  that  court,  and  which  is  specif- 
ically within  the  rules  of  this  court,  made 
under  authority  of  Congress,  requiring  ths 
court  of  claims  to  certify  findings  of  fact 
and  conclusions  of  law.  The  court  of 
claims  was  established  for  the  purpose  of 
considering  the  right  of  claimants  to  re- 
cover against  the  United  States;  and  when 
it  finds  facts  upon  matters  within  its  au* 
thority,  that  should  be  conclusive  under 
the  rules  unless  Congress  otherwise  pro- 
vides. It  follows  that  upon  the  facts  found 
the  claimant  was  not  entitled  to  recover. 

Nor  do  we  find  any  room  for  the  applica- 

230  r.  s. 


1110. 


JOHNSON  V.  WELLS  FARGO  k  CO. 


232-234 


tkm  in  thii  mm  of  the  doctrine  laid  down 
ia  United  States  t.  Clark,  06  U.  S.  37,  24 
U  ed.  606,  in  which  it  is  held  that  where 
the  eoort  certifies  the  evidence,  and  it  ap- 
pears that  there  is  none  to  warrant  its  legal 
eonehiBiony  a  question  of  law  is  presented 
whieh  may  be  determined  here.  In  this 
«ae  we  are  of  opinion  that  there  was  ample 
teftimon/  to  warrant  the  conclusion  of  the 
eoort  of  claims,  as  stated  in  its  findings. 
It  certainly  cannot  be  said  that  there  was 
no  rapporting  testimony,  so  as  to  make  the 
question  one  of  law,  and  not  of  fact.  It 
does  not  appear  that  either  of  the  parties 
understood  that  the  contract  or  release 
iltoold  be  reduced  to  writing  in  any  other 
form  than  as  it  was  actually  written. 
There  was  no  mistake  in  the  form  of  the 
instrument.  United  States  v.  Milliken  Im- 
printing Co.  202  U.  S.  supra,  page  177,  60 
L  ed.  084,  26  Sup.  Ct  Rep.  572.  The  testi- 
mony of  the  former  Secretary  of  the  Navy 
snd  of  the  Secretary  in  office  at  the  time 
the  release  was  signed,  to  the  effect  that  it 
wu  not  believed  that  it  would  cover 
claims  for  [233]  damages  for  delay,  if  com- 
petent for  any  purpose  whatsoever,  certain- 
ly did  not  show  that  mutual  mistake  of  the 
parties  which,  upon  well-established  prin- 
ciples of  equity  jurisprudence,  requires  the 
r^ormation  of  the  contract,  and  certainly 
no  such  special  circumstances  were  de- 
veloped of  fraud,  duress,  or  oppression,  as 
would  necessarily  require  relief  against  a 
mistake  of  law. 

We  find  no  error  in  the  judgment  of  the 
Court  of  Clainui,  and  the  same  is  alBrmed. 

Mr.  Justice  McKenna  dissents  from  the 
opinion  and  judgment  in  this  case.  In  his 
opinion,  the  court  of  claims,  in  view  of  the 
statute  of  June  10th,  1806  [20  SUt  at  L. 
361,  chap.  300],  authorizing  and  directing 
the  Secretary  of  the  Navy  to  examine  the 
elaims  here  involved,  and  to  report  to  Con- 
gress the  result  of  his  investigation,  and 
whether  such  claim  was»  in  his  opinion, 
sabject  to  the  jurisdiction  of  the  court  of 
eUims  or  for  the  action  of  Congress,  im- 
plied the  intent  of  Congress  that  claims  of 
this  character  should  be  considered  upon 
broad  equitable  grounds.  Thus  considered, 
Mr.  Justice  McKenna  thinks  the  claimant 
entitled  to  recover  for  the  delay  resulting 
Irom  the  fault  of  the  government,  notwith- 
standing the  form  in  which  the  final  receipt 
WIS  drawn  and  executed. 

Mr.  Jjutidk  McReynolds  took  no  part 
hk  the  *  consideration    or   decision   of   this 


10  L.  ed. 


[234]  GEORGE  G.  JOHNSON,  as  Treas- 
urer of  the  State  of  South  Dakota,  Appt., 

V. 

WELLS  FARGO  &  COMPANY.     (No.  277.) 

GEORGE  G.  JOHNSON,  as  Treasurer  of  the 
SUte  of  South  Bakota,  Appt., 

V. 

GEORGE  0.  TAYLOR,!  Individually  and 
as  President  of*  the  American  Jijcpreai 
Company.     (No.  278.) 

(See  S.  C.  Reporter's  ed.  234-244.) 

Taxes  —  uniformity  —  measuring  value 
by  gross  income. 

1.  Making  gross  earnings  within  the 
state  the  controlling  factor  in  fixing  the 
value  for  taxation  of  the  property  of  ex- 
press companies,  as  ivas  done  by  the  state 
board  of  equalization  and  assessment  in  the 
administration  of  S.  D.  Laws  1007,  chap. 
64,  as  amended  by  Laws  1000,  chap.  162, 
violates  the  provisions  of  S.  D.  Const,  art. 
11,  §  2,  specifically  requiring  that  all  taxes 
levied  and  Iwsessed  upon  corporate  prop- 
erty shall  be  as  near  as  may  be  by  the 
same  methods  as  are  provided  for  the  as- 
sessment of  taxes  on  individual  property, 
where  individuals  and  corporations  other 
than  railroad,  telephone,  telegraph,  express, 
and  sleeping  car  companies  are  taxed  ac- 
cording to  ^e  value  of  their  property  with- 
out regard  to  income. 

[For  otber  cases,  see  Taxes,  I.  b,  1,  in  Digest 
Sup.  Ct,  1008.) 

Injunction  —  against  illegal  tax  —  fraud 

or  mistake  —  continuing  violation  of 

constitutional  right. 

2.  A  Federal  court  has  jurisdiction  in 
equity  of  a  bill  to  enjoin  the  collection  of 
state  taxes  which  allies  not  only  that  the 
assessment  is  unwarranted  by  the  law, 
but  that  the  manner  of  making  the 
assessment  amounts  to  fraud  upon  com- 
plainants' constitutional  rights,  or  such 
gross  mistake  as  amounts  to  fraud,^-es- 
pecially  where  it  also  appears  that  the  tax 
for  the  year  preceding  had  been  similarly 
enjoined  by  a  decree  U'om  which  no  appeal 
had  been  taken. 

[For  other  cases,  see  Injunction,  I.  k:  Bauity. 
I.  d,  2,  in  Digest  Sup.  Ct.  1V08.] 

[Nos.  277  and  278.] 

1  Death  of  James  C.  Fargo  suggested,  and 
appearance  of  George  C.  Taylor,  individual- 
ly and  as  president  of  the  American  Express 
Company,  filed  and  entered  October  12,  1015, 

as  the  party  appellee  herein. 

^^^^—       .^^^— .— ^^—  ^-^^.^— ^^^^-^.^— ^^^^ 

Note. — As  to  taxation  of  express  com* 
panics — see  notes  to  State  v.  Duluth  Gas  & 
Water  Co.  67  L.R.A.  64,  and  Western  U. 
Teleg.  Co.  v.  Taggart,  60  L.R.A.  687. 

On  iniunction  to  restrain  the  collection 
of  illegal  taxes — see  notes  to  Odiin  v.  Wood- 
ruff, 22  L.R.A.  600;  Dows  v.  Chicago,  20  L. 
ed.  U.  S.  65;  and  Ogdcn  City  v.  Armstrong, 
42  L.  ed.  U.  S.  445. 

On  constitutional  equality  in  relation 
to  corporate  taxation — see  note  to  Bacon 
V.  State  Tax  Comrs.  60  L.R.A.  321. 


SUPREME  COURT  OF  THE  UNITED  STATES.  Oct.  Teem, 


Argued  October  12  and  13,  1915.     Decided 
November  20,  1915. 

TWO  APPEALS  from  the  United  States 
Circuit  Court  of  Appeals  for  the 
Eighth  Circuit  to  review  decrees  which,  re- 
versing decrees  of  the  District  Court  for  the 
District  of  South  Dakota,  remanded' the  case 
to  the  latter  court  with  instructions  to  en- 
ter decrees  restraining  the  collection  of  cer- 
tain state  taxes.    Affirmed. 

See  same  case  below,  L.R.A.1910C,  522, 


City  V.  Armstrong,  168  U.  S.  224,  42  L.  ed. 
444,  18  Sup.  Ct  Rep.  98;  Chicago,  B.  ft  Q. 
R.  Co.  V.  Baboock,  204  U.  S.  585,  51  L.  ed. 
636,  27  Sup.  Ct  Rep.  326;  United  SUtea 
Exp.  Co.  V.  Minnesota,  223  U.  S.  335,  66 
L.  ed.  459,  32  Sup.  Ct.  Rep.  211;  Miasouri 
V.  Dockery,  191  U.  S.  170,  48  L.  ed.  13S, 
24  Sup.  Ct.  Rep.  53. 

On  the  question  of  whether  Injunction 
is  the  proper  remedy  in  any  event,  the 
court's  attention  is  called  to  Dowa  v.  Chi- 
cago, 11  Wall.  108,  20  L.  ed.  65;  Snyder  t. 


130  C.  C.  A.  528,  214  Fed.  180.  Marks,  109  U.  S.  193,  27  L.  ed.  908,  3  Sup. 

The  facts  are  stated  in  the  opinion.  Ct.   Rep.   157;    Taylor  v.   Secor,  92   U.   S. 

Mr.    Clarence   O.    Caldwell,    Attorney  ^J^^^^^A^' ^^^'J"^^^^ 

General  ef  South  Dakota,  and  Mr.  L.  T.  ^' ^' ^V^l  f' ^^ '\f'T\fr^  ^t^ 

Boucher,  argued  the  cause,  and,  with  Mr.  ^i/'^o^^^^^^^^^^^^-  ?'  *®^V^^  ^'  ^• 

Royal  C.  Johnson,  former  Attorney  General,  ^288,  33  Sup.  Ct.  Rep.  941. 

and  Mr.  M.  H.  O'Brien,  filed  a  brief  for  ap-  ^^.«*,*  state  board  of  assessment  and 

nellant*  equalization,   state  tax  conunission,  or  by 

The  rule  announced  by  the  circuit  court  whatever  Dame  the  body  may  be  called  in 

of  appeals  that  the  aaw^aing  board,  in  fix-  '*•  ^7'  upo"  which  ha.  been  conferred  the 

ing  the  valuation  of  the  plaintir.  property  ««>»>  Power  of  aMeaament  and  equalizatwn, 

for  taxation,  could  not  Consider  the  plain-  ^  determined  the  value  of  proper^  within 

tiff,  income  in  the  aUte,  but  w«.  confined  »•"=  "^t*-  »"  t^«  *»"«'»«*  °1 '""V.."  "*; 

to  a  finding  of  the  value  of  the  property  in  constitutional    law,    the    determination    of 

money  by  finding  the  amount  that  can  be  ""»*  ^"i"",  ""c  question  of  v»lue  i..  of 

realized  from  it  by  a  «ileof  it  within  a  rea-  -cceB^'ty.  «-»«!  "<»  »«  PO*"  eziato  in  the 

«,nable  time,   would  seem  to  be  not  only  f"'**,?^  ""'*,r /k  »*7  ^?*"T/!L^" 

uxuv    u  4,  „  .  \A  ;».^^-«  .,..««  «1  fere  with  or  modify  that  findmg  of  fact, 

•omewhat  harsh   but  would  impose  upon  an  ^                   « 

iTT*    r,    J     '     ^  ^                '^''  ^"'  «<»•  863;  SUte  ex  rel.  American  Exp.  Co.  v. 

8Ute  R    TirCases.  02  U.  8.  576,  23  U  f^}-  %'\^,\"p  ''«'  f  JJl.^^^i"?' 

-J  fiflo    w...«-,»  TT  'rLi«»  r-^  .   ktt^  r^„  Chicago,  B.  i.  Q.  R.  Co.  v.  Babcocic,  204  U. 

ed.  663    Western  U.  leleg.  Co.  y.  Atty.  Oen.  T^  '          ^                                  • 

126  U.  S.  530.  31  L.  ed.  700,  8  Sup.  Ct.  Bep.  ^- I^'^^iJ^  J^'  f'  "'^  f^  u  '^•♦vVk    "?'       ?" 

961 ;  Postal  Teleg.  Cable  Co.  v.  Adams.  155  ^o  be  able  to  find  fault  with  the  law  i, 

U.  8.  688.  30  L.  ed.  311,  6  Inters.  Com.  Rep.  ""J, *»  demonstrate  its  invalidity. 

1    ie  c-   f^   !»„.,   oas    MO.    Aj.«.  ir«^  Metropolis  Theatre  Co.  T.  Chicago,  228  U. 

1,  16  Sup    Ct    Rep    268    360;  Adam.  Exp^  g          ^^  ^   ^            33            ^ 

Co.  V.  Ohio  State  Auditor,  166  U.  S.  185-  mv     _a  i.  i.     •             x*       •         ^     u        • 

224,  41   L.  ed.  065-978.  17  Sup.  Ct.  Rep.  ,  ^t,"***"**  '"  ''"?*"'°/!  °?*  o^"""""" 

604,   Pittsburg  C.   C.  &  St.  L.  R.  Co.  v.  *«  .8  "  "^  "»•  ^  °*  t*""  "tate  Constitution, 

•»    1         "ic>i  TT    o    Aai    oo  T      J    -lAoi    1A  which  providcs  that  no  law  shall  embrace 

Backus,  154  U.  S.  421,  38  L.  ed.  1031,  14  .f                   ...    „v:^i.     u^n  u 

Sup.  Ci.  Rep.  1114;  Fargo  v.  Hart,  193  U.  "^^e^'l^  i^tit" e  ^      '                               ""' 

Wr;n'u^et/ Co  'v  t7.^H  ^iZ'T^  '^fple\%^^^^^  2  Cal.  Unrep.  788,  14 

r^^^^  V  lo^' i«  fi        ?f  i        1^^^^^  P»<^-   783;    Wickhem   v.   AlexandrU,   23   S. 

;♦  t          T\f^  I   pT         «  tf*         o^  ^'  ^56,  122  N.  W.  507;  Stuart  v.  Kirley,  12 

Atchison,  T   &  a  F.  R   Co   V.  Sullivan,  97  g   j^   ^^g    g^  jj    ^^    ^^7     B^^^^  ^    ^^.^ 

«:  ^TT^o^'  ,Vo^  ^o^."**  T*^*l,^!t!J"  \  V^^'^'f'  Hiver  Valley  R.  Co.  28  S.  D.  84,  132  N.  W. 

94    U.    S.    113,    24    L.    ed.    77;    Pu^l^a^'B  797;  Dunbar  v.  Frazer,  78  Ala.  538;  SUte 

Palawj   Car   Co.    v.    Pennsylvania,    141    U.  ^  McCracken,  42  Tex.  384;  Henrico  County 

8.    18     35    L.    ed.    613,    3    Inters.    Com.  y.  Richmond,  106  Va.  282,  117  Am.  St  Rep. 

Rep.    o9.5,    11  Sup     Ct.    Rep.    876;    Home  jq^^^  55  g  ^  ggg.  g^^^  ^  ^^j  Whitson  v. 

Teleph.   &    leleg.   Co.  v.  Los  Angeles,   211  ^^^^   37  ^enn.  163,  10  8.  W.  310;  Lewis 

U.    S.    281,    53    L.    ed.    186,    29    Sup.    Ct.  y^  Dunne,  86  Am.  St.  Rep.  270,  note;  Bobel 

Rep.    50;    Fayerweather    v.    Rich,    195    U.  y.  People,  173  HI.  25,  64  Am.  St.  Rep.  64, 

8.   276,  49   L.   ed.    193,  25   Sup.   Ct.   Rep.  50  N.  E.  322;  Crookston  v.  Polk  County,  79 

58;    Cleveland,    C.    C.    &    St.    L.    R.    Co.  Am.   St.   Rep.   460,   note;    Newark   v.    Mt. 

T.  Bachus,  154  U.  8.  445,  38  L.  ed.  1046,  Pleasant  Cemetery  Co.  58  N.  J.  L.  171,  33 

4  Inters.  Com.  Rep.  677,  14  Sup.  Ct.  Rep.  Atl.  396. 

1122;  Adams  Exp.  Co.  v.  Foe,  64  Fed.  9;  Not  only  may  the  subject  be  as  compre- 

California  k,  O.  Land  Co.  t.  Qowen,  48  Fed.  hensive   as   the   legislative   discretion    may 

771;  Maish  v.  Arizona,  164  U.  S.  599,  41  choose  to  make  it,  but  the  statute  relating 

L.  ed.  567«  17   Sup.  Ct.  Rep.  193;   Ogden  to  it  may  include  every  matter  germane  to 

J44  2S»  U.  S. 


1915. 


JOHNSOl^  T.  WELLS  FARGO  k  CO. 


and  in  furtherance  of  the  general  subject  or 
object  ezpreesed  in  the  title. 

Barksdale  v.  Laurens,  58  S.  0.  413,  86 
S.  £.  661;  Memphis  v.  American  Exp.  Co. 
102  Tenn.  336,  52  S.  W.  172;  Prison  Asso. 
Y.  Ashby,  93  Va.  667,  25  S.  E.  893;  People 
ez  rel.  Malonej  v.  Kirk,  162  111.  138,  53 
Am.  St.  Rep.  277,  45  N.  £.  830. 

The  doctrine  that  perfect  equalitj  of  tax- 
ation is,  in  practice,  beyond  the  reach  of 
human  endeavor,  has  been  subscribed  to 
generally  ly  the  Federal  and  state  courts 
throughout  the  United  States. 

Bacon  v.  State  Tax  Comrs.  126  Mich.  22, 
60  L.R.A.  324,  86  N.  W.  307. 

Neither  the  mere  illegality  of  the  tax 
complained  of,  nor  its  injustice  nor  irreg- 
ularity, of  themselves,  give  the  right  to 
an  injunction  in  a  court  of  equity. 

SUte  R.  Tax  Cases,  92  U.  8.  575,  23  L. 
ed.  663;  Dows  v.  Chicago,  11  Wall.  108, 
20  L.  ed.  65;  Hannewinkle  v.  Georgetown, 
15  Wall.  548,  21  L.  ed.  232;  Tennessee  v. 
Sneed,  96  U.  S.  69,  24  L.  ed.  610;  Cooley, 
TiLxn.  2d  ed.  760-772;  Union  P.  R.  Co.  v. 
Weld  County,  133  C.  C.  A.  392,  217  Fed. 
540. 

While  fraud,  accident,  or  mistake  are,  In 
a  general  way,  grounds  for  the  exercise  of 
equity  jurisdiction,  they  are  not  necessarily 
grounds  for  enjoining  the  collection  of  a 
state  or  county  tax  by  a  Federal  court. 

Singer  Sewing  Mach.  Co.  v.  Benedict,  229 
U.  8.  481,  57  L.  ed.  1288,  33  Sup.  Ct.  Rep. 
941. 

Messrs.  Clarice  C.  Caldwdl  and  L.  T. 
Boucher  also  filed  a  separate  brief  for  ap- 
pellant: 

Injunction  should  not  lie,  because  plain- 
tiff  had  an  adequate  remedy  at  law,  and 
should  not  be  permitted  to  resort  to  the 
equity  side  of  the  court. 

Cooley,  Taxn..p.  772;  8t.  Anthony  k  D. 
Elevator  Co.  v.  Bottineau  County,  9  N.  D. 
346,  50  UftA.  262,  83  N.  W.  212;  Frost  v. 
Flick,  1  Dak.  126,  46  N.  W.  508;  Minne- 
apolis, St  P.  k  S.  Ste.  M.  R.  Co.  v.  Dickey 
County,  11  N.  D.  107,  90  N.  W.  260;  Schaflf- 
ner  v.  Young,  10  N.  D.  245,  86  N.  W.  733; 
Chicago  A  N.  W.  R.  Co.  v.  Ft.  Howard,  21 
Wis.  44,  91  Am.  Dec.  458;  Schurmeier  v. 
St.  Paul  k  P.  R.  Co.  8  Minn.  113,  Gil.  88, 
83  Am.  Dec.  770;  Odlin  v.  Woodruff,  22 
L.RJL  699,  note;  Whiting  v.  Boston,  106 
Mass.  89;  Milwaukee  v.  Koeffler,  116  U.  8. 
219,  29  L.  ed.  612,  6  Sup.  Ct.  Rep.  372; 
Greene  v.  Mumford,  5  R.  I.  472,  73  Am. 
Dee.  79;  Bank  of  Kentucky  v.  Stone,  88 
Fed.  883;  Baltimore  v.  Tefferman,  4  Gill. 
426,  45  Am.  Dec.  145. 

The  gross  earnings  tax  law  is  valid. 

McHenry  v.  Allord,  168  U.  8.  651,  42  7s. 
ed.  614,  18  Sup.  Ct.  Rep.  242;  Missouri 
River,  Ft.  8.  &  G.  R.  Co.  v.  Morris,  7  Kan. 
60  li.  ed. 


210;  Francis  v.  Atchison,  T.  k  8.  F.  R.  Co. 
19  Kan.  303;  State  ex  rel.  Poe  v.  Jones, 
51  Ohio  St  492,  37  N.  E.  945 ;  Adams  Exp. 
Co.  T.  Ohio  SUte  Auditor,  166  U.  8.  185, 
41  L.  ed.  965,  17  Sup.  Ct.  Rep.  604,  165 
U.  8.  221,  41  L.  ed.  695,  17  Sup.  Ct  Rep. 
305. 

Messrs.  Charles  O.  Bailey  and  Charlea 
W.  Stockton  argued  the  cause,  and,  with 
Mr.  John  H.  Voorhees,  filed  a  brief  for  ap- 
pellee : 

While  all  other  property  is  taxed  upon 
the  basis  of  the  requirements  for  the  year 
in  which  the  tax  is  imposed,  telegraph,  tele- 
phone, sleeping  car,  and  express  companies 
are  required  to  pay  a  tax  based  upon  the 
average  tax  requirements  throughout  the 
state  upon  other  property  for  the  preced- 
ing year.  This  constitutes  a  distinct  violin 
tion  of  pretty  nearly  all  of  the  require- 
ments of  the  South  Dakota  Constitution 
respecting  uniformity  and  equality  in  as- 
sessment and  taxation. 

Pingree  v.  Auditor  General  (Pingree  v. 
Dix)  120  Mich.  95,  44  L.R.A.  679,  78  N. 
W.  1025;  Re  Assessment  k  Collection  of 
Taxes,  4  8.  D.  6,  54  N.  W.  818;  Fox's  Ap- 
peal, 112  Pa.  337,  4  Atl.  140. 

The  entire  theory  of  the  levy  and  dis- 
tribution of  the  tax  is  repugnant  to  the 
plain  provisions  of  the  South  Dakota  Con- 
stitution. 

Chattanooga  t.  Nashville,  C.  A  St.  L.  R. 
Co.  7  Lea,  661. 

Each  taxpayer  of  the  state  of  South  Da- 
kota is  entitled  to  a  legal  assessment  and 
levy  of  taxes  before  he  can  be  required  to 
pay  the  amount  levied,  and  it  is  immaterial 
that  a  legal  assessment  and  levy  might  yield 
substantially  the  same  tax  as  tiiat  produced 
by  the  illegal  methods  of  assessment  and 
levy. 

Owensboro  Nat.  Bank  v.  Owensboro,  173 
U.  8.  664,  43  L.  ed.  850,  19  Sup.  Ct.  Rep. 
537. 

There  is  no  question  involved  in  this  case 
of  any  assessment  upon  the  so-called  unit 
system,  such  as  was  sustained  by  the  su- 
preme court  in  Adams  Exp.  Co.  v.  Ohio 
SUte  Auditor,  165  U.  8.  194,  41  L.  ed.  683, 
17  Sup.  Ct.  Rep.  305. 

The  conclusion  reached  by  the  board 
shows  a  result  enormously  in  excess  of  that 
warranted  by  any  of  the  factors  which  they 
were  at  liberty  to  use  in  their  calculations, 
and  that  circumstance  is  proof  of  such  mis- 
conduct on  the  part  of  the  board  as  to  de- 
prive its  action  of  any   weight  whatever. 

State  V.  London  k  N.  W.  American  Mortg.. 
Co.  80  Minn.  277,  83  K.  W.  339. 

Mr.  John  G.  Mllbnm  also  argued  th« 
cause,  and,  with  Messrs.  Charles  O.  Bailey 
and  John  H.  Yoorhees,  filed  a  brief  for  ap- 
pellet. 

14t 


236-239 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Tfeu, 


Mr.  Justice  Day  delivered  the  opinion 
of  tlie  court: 

These  cases  were  argued  at  the  same  time 
and  may  be  considered  together.  They  are 
appeals  from  the  decision  of  the  circuit 
court  of  appeals  of  the  eighth  circuit,  by 
[237]  which  the  present  appellant,  as  treas- 
urer of  the  state  of  South  Dakota,  was  en- 
joined from  assessing  certain  taxes  levied 
against  the  appellees  by  the  state  board  of 
assessment  and  equalization  of  the  state  of 
South  Dakota,  for  the  year  1910.  The  bills, 
brought  for  the  purpose  of  enjoining  the 
collection  of  such  taxes,  were  dismissed  in 
the  distdct  court  (205  Fed.  60),  which 
decrees  were  reversed  in  the  circuit  court 
of  appeals,  and  decrees  entered  remanding 
the  case  to  the  district  court  with  instruc- 
tions to  enter  decrees  for  the  appellees,  re- 
straining the  collection  of  the  taxes 
(L.RA.1916C,  622,  180  C.  C.  A.  528,  214 
Fed.  180). 

Under  the  law  of  South  Dakota,  Wells 
Fargo  k  Company  made  a  statement  show- 
ing that  its  gross  earnings  within  the  state 
for  the  year  ending  April  30,  1910,  were 
$131,000.28,  and  that  the  value  of  its  otBce 
furniture,  fixtures,  and  real  estate  was 
$18,473.98.  The  board  assessed  the  value 
of  the  property  of  Wells  Fargo  k  Company 
at  $289,877,  and  imposed  a  tax  of  28  mills 
on  the  dollar,  making  a  total  tax  of  $8,- 
116.55.  Similarly,  the  board  assessed  the 
value  of  the  American  Express  Company  at 
$193,260,  and  levied  a  tax  of  $5,411.28.  The 
bills  averred  a  tender  of  taxes  upon  the 
returns,  and  charged  that  the  assessments 
made  were  in  violation  of  the  state  Consti- 
tution, and,  if  enforced,  would  have  the 
effect  to  take  the  property  of  the  express 
companies  without  due  process  of  law,  in 
violation  of  the  Federal  Constitution. 

The  Constitution  of  the  state  of  South  Da- 
kota, as  the  same  was  in  force  at  the  time  of 
these  assessments,  provided  (article  11,  §  2), 
as  follows: 

'*A11  taxes  to  be  raised  in  this  state  shall 
be  uniform  on  all  real  and  personal  prop- 
erty, according  to  its  value  in  money,  to 
be  ascertained  by  such  rules  of  appraisement 
and  assessment  as  may  be  prescribed  by 
the  legislature  by  general  law,  so  that  every 
person  and  corporation  shall  pay  a  tax  in 
proportion  to  the  value  of  his,  her  or  its 
[238]  property.  And  the  legislature  shall 
provide  by  general  law  for  the  assessing  and 
levying  of  taxes  on  all  corporation  property, 
as  near  as  may  be,  by  the  same  methods  as 
are  provided  for  assessing  and  levying  of 
taxes  on  individual  property." 

From  an  analysis  of  this  section,  it  ap- 
pears that  taxes  to  be  valid  must  be  uni- 
form upon  all  real  and  personal  property; 
146 


that  the  legislation  providing  for  the 
sessment  and  collection  of  taxes  must  be 
such  that  every  person  and  corporation  may 
be  taxed  in  proportion  to  the  value  of  his, 
her,  or  its  property;  and  that  the  general 
laws  which  provide  for  the  assessing  of 
taxes  on  corporation  property  shall  be,  as 
near  as  may  be,  by  the  same  methods  as 
are  provided  for  the  assessing  and  levying 
of  taxes  on  individual  property,  i 

While  this  Constitution  was  in  full  force 
and  effect,  the  legislature  passed  an  act 
providing  for  the  assessment  of  taxes  up6n 
express  and  sleeping  car  companies  (chap. 
64,  Laws  of  South  Dakota,  1907,  as  amended 
by  chap.  162  of  the  Laws  of  1900).  In  §  16 
of  this  act,  express  companies  are  required 
to  transmit  statements  to  the  auditor  of 
state,  showing  the  number  of  employees  en- 
gaged by  the  company  in  the  state,  and  the 
number  in  elich  county ;  [239]  the  number 
of  offices  maintained  within  the  state,  and 
in  each  county;  the  value  of  all  office  furni- 
ture, fixtures,  and  real  estate  owned  in. the 
state;  the  number  of  miles  of  railroad  over 
which  it  conducted  its  business,  and  the 
number  of  miles  in  each  county;  the  num- 
ber of  express  cars  owned  by  the  company 
and  used  within  the  state,  and  the  number 
of  such  express  cars  leased  and  controlled, 
but  not  owned,  by  such  company,  and  used 
within  the  state,  or  operated  under  lease  or 
contract  in  any  manner;  the  gross  earnings 
of  the  total  business  of  such  company  trans- 
acted within  the  state  for  the  year  ending 
April  30th  preceding,  and  the  value  of  all 
the  property  of  such  company  used  in  the 
state.  Section  17  of  the  act  makes  provi- 
sion for  assessing  the  property  of  express 
and  sleeping  car  companies,  and  requires 
the  board  of  assessment  and  equalization  to 
take  into  consideration  the  gross  earnings 
of  the  company  within  the  state  for  the 


iThis  constitutional  provision  was  in 
force  at  the  time  the  taxes  in  question  were 
assessed,  but  was  changed  by  the  amendment 
of  1912,  which  provides: 

''All  taxes  shall  be  uniform  on  all  prop- 
erty and  shall  be  levied  and  collected  for 
public  purposes  only.  The  value  of  each 
subject  of  taxation  shall  be  so  fixed  in  money 
that  every  person  and  corporation  shall 
pay  a  tax  in  proportion  to  the  value  of  his, 
her  or  its  property.  Franchises  and  lioenses 
to  do  business  in  the  state,  ^qss  earnings 
and  net  income,  shall  be  considered  in  tax- 
ing corporations  and  the  power  to  tax  cor- 
porate property  shall  not  be  surrendered  or 
suspended  by  any  contract  or  grant  to  which 
the  state  shall  be  a  partv.  The  legislature 
shall  provide  by  general  law  for  the  assess- 
ing and  levying  of  taxes  on  all  corporate 
property,  as  near  as  may  be  by  the  same 
methods  as  are  provided  for  assessing  and 
levying  of  taxes  on  individual  propertv." 

2S0  U.  S. 


im                                 JOHNSON  T.  WELLS  FAROO  t  CO.  Uft-MI 

jMT  endtng  the  30th  of  April  preceding,  the  groas  euningi  of  the  respective  com- 

■dlenoita   made   by   the  eompanj   >ad    by  piniea,  ud  -finda  thftt  the  boaid  of  bmtii 

tte  Board  of  lUilwaj  CommiuioDen,  kiid  mpnt    >nd    equal ization,    in    ""Ung    the 

117  tod  atl  other  matt«ra  necessary  to  ea-  aaeeaament,  adopted  practicallj  the  aaine  per- 

•Ui  them    to   make   a   jnat   and   equitable  omtage  of  the  amounta  paid  to  the  railroad 

uMument  of  the  property  in  the  tame  ra-  oompanies  by  each  of  the  expreai  eompnniaa 

tia  M  the  property  of  iodividuala,  and  pro-  "  *  **■'■  "'  aaaeeament  of  the  companies 

rtlf«  tliat  the   (Utement  and  information  reapectively.      TTie    court   reached   the   cou- 

rterivrd  shall  be  laid  before  the  board  of  at-  <!'°«''»  **»*  U>ere  waa  but  one  rational  ex- 

MWinent  and  equajliation,  which  board  shall  pl^nation  of  this  tact,  which  was  that  the 

Mriew  sucli  atataneot  or  loformation,  and  E'*!]   '>°»'d   measured   the  asseaameiit  of 

«y  change  the  raliution  gives,  or  add  to  ^*  companiei  by  the  amounta  they  had  paid 

tke  sUtement  any  property  omitted  there-  *°  **>•  railroad  companies  reapectively ;  that 

horn,  and  the  board  ahall  levy  a  tax  upon  *■  ^  "T.  ^T  ^'^  gro"  earnings  from  their 

neh  property,  which  tax  shall  be  equal  to  tiansportation  busini^M  over  the  railroads. 

&t  average  amount  of  state,  county,  achool.  Otherwise,    the    court    concluded.  It   would 

■nuieipal,    road,   bridge,    and    other    local  ^    incredible    that    the    board    could    hava 

(uei    levied    upon    other    property   for   the  estimated  the  taxable  value  of  these  com- 

precedlng  year.  panies   so   that  the   estimates   would    come 

Ihere  is  testimony  in  the  reoonl  on  the  "i^t"  o"*  °ue  hundred  and  sixtieth  of  the 

part  of  the  state  treasurer,  tending  to  ahow  ■vo*  percentage  of  the  respective  amounta 

(hat  the   express   companies   did  not   com-  "'hich   the   express  companies  had   paid   to 

ply  with  the  law  bb  to  tiie  malcing  of  their  the  railway  companies.     The  court  of  ap- 

retums  for  the  year  1910;  that  in  making  peals  further  held  that  this  uniform  rela- 

tbe  assesBment   upon    the    property    of   the  tion  of  the  assessments  of  the  three  prin- 

eompaniea  within  the  [240J  state,  the  state  cipal  express  companies  doing  business  in 

■nditor,_atid,  as  he  believed,  the  other  mem-  the  state  to  the  respective  amounta  paid  to 

tiers  of  the  state  board,  considered  the  re-  the  railroad  companies  waa  more  persuasive 

porta  and    annual   statements   of  the  com-  than   the  testimony   of  many  witnesses  aa 

panies,    the    reports    of    the    railway    com-  to  the  thing!   which   were  taken    into  eon* 

paniee,  the  reports  and  records  of  the  rail-  ,ideratlon  by  the  board  In  determining  the 

way   commissioners,    the   contracts    for    ex-  »niount  of  the  aaseasmenta. 

press  privileges  of  the  express  eompaniea  in  ^  j,  ^         i^  ^^                    jhi,  point  that, 

tte  rtate,  the  earning,  of  the  compani«  in  ;„  „„,       ,„;„      „,,  ^^^  j^  ^^,  O^t 

tte  atate,  the  var.ous  l.ne.  of  bu.ineas  done  ^         ^              ^         .,       ^  oompanie^  If 

by    the     companies     in     the     state,     the  ,  K        ,    .     ,      ,  ,v                    .    _  j 

t^gth    of    the    companies'    system,    in    the  »<«  the  only  b.sl.  of  the  asseswnent.  mad. 

stat^  the  number  of  their  offices,  the  bulk  ^y.  »»"•  >><«'<>.  wm  the  principal  factor  In 

aad  value  of  their  t.gitlv.  property  in  the  ""■»  ""•  '•'""'  "'  *''*  Property  of  the  ex- 

BtaU,  not  reported  In  the  annual  aUtement,  P'""  wmpanies  for  taxation  in  the  state, 

the   toUl   value   of  the    property,    tangible  ■"<'  ""  qu^tion  arises.  Was  such  admiaia- 

and  intangible.  In  the  state,  the  amount  of  tration  of  the  statute  contrary  to  the  rt- 

aioaey  which,  in  the  judgment  of  the  audi-  quirement   of   the   South    Dakota   Conatttu- 

tor  and  other  members  of  the  board,  muat  tion,  already  quoted,  requiring  all  taxation 

have  been  necessary  to  carry  on  the  various  to  bs  in  proportion  to  the  value  of  the  prop- 

llnea    of    the    compsjiiea'    business    in    the  erty  assessed,  and  corporation  property  to 

state,  and  .11  other  facts  which  he  or  the  be  asaeased,  aa  near  as  may  be,  by  the  same 

ether   members  of  the  board   could   obUin,  method,  aa  are  provided  for  assessing  the 

tending  to  throw   light  upon  the  value  of  ,^,„^  p,  individual  property?       It  appears 

theooinpan.es  property  ^^^^^  y,^  5^,^^^  U^l,^^^  statutes,  other  than 

On  the  other  hand,  the  court  of  appeal,  those  relating  to  railroads,  telephone,  tele- 

mehea  the  conclusion  from  the  testimony  __   ,     „„,  °    ._j  .i»™i»     ../    _  ._i_ 

that  the  express  companies  doing  bu.ine^  f "P*":  ^^'^^l  ""*  "f'^S  ""L  ,TP"'"' 

hi  the  aUte  in  190B  Za  1910  were  under  ^^  ""*'  "thorite  a  valuation  which  con.ld- 

eontraets   with   the   railroad    companies   to  '"  «"*'  '"'»°"'  *"<*  ""*  ""*""'''■"'•  ">d 

pay  to  the  latter  from  4S  per  cent  to  SS  "^^'^   corporations   are  taxed   according  to 

per  cent  of  their  gross  earnings  fro;n  the  t*"*  '»'"*'  •■'  ^""'  property,  without  refer- 

tranaporUtion  of  ezpreas  business  over  their  ence  to  the  income  derived  therefrom.     In 

Unaa,  and  that  aa  the  amounta  paid  to  the  other  words,  property  owned  by  other  cor- 

nilnwd  aompanles  by  the  respective  oxpreu  porationa  and  individuals  I.  [242]  aaiessad 

•mpaniaa  were  approximately  one  half  of  for  what  it  ia  fairly  worth,  and  a  valuation 

1h«  anwontl  of  their  gross  earnings  from  for  taxation  is  not  Sxed  by  a  method  which 

ttcse     railroads     in     South     Datoka,     the  gives   controlling   effect   to   the  amount  of 

anounti  to  paid  furnished  »  meaaute  of  the  gross  income   derived   therefroin.     W« 

«•  Ii.  ML  «Vl 


242-244 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TctM, 


concur  with  the  court  of  appeals  that  such 
procedure  is  in  viblation  of  the  provision 
of  the  South  Dakota  Constitution,  spe- 
cifically requiring  that  all  taxes  levied  and 
assessed  upon  corporation  property  shall 
be  as  near  as  may  be  by  the  same  methods 
as  are  provided  for  the  assessment  of  taxes 
upon  individual  property. 

The  stringent  provisions  af  the  Constitu- 
tion of  South  Dakota,  then  in  force,  re- 
quired the  adoption  of  a  rule  of  valuation, 
as  near  as  might  be,  of  like  character  in 
assessing  individual  and  corporate  prop- 
erty in  the  state,  and  here,  the  record  shows, 
the  valuation  of  the  property  of  the  express 
companies  was  based  principally  upon  their 
gross  incomes,  determined  by  the  method  al- 
ready described.  Such  administration  of 
the  statute  would  be  illegal,  although  the 
law  upon  its  face  be  unobjectionable.  Rea- 
gan V.  Farmers*  Loan  &  T.  Co.  164  U.  S. 
302,  390,  38  L.  ed.  1014,  1021,  4  Inters. 
Com.  Rep.  660,  14  Sup.  Ct.  Rep.  1047. 

It  is  said  that  this  conclusion  is  not 
consistent  with  the  decision  of  the  supreme 
court  of  South  Dakota,  construing  its  own 
Constitution  with  final  authority,  in  State 
ex  rel.  American  Exp.  Co.  v.  State  Board, 
3  S.  D.  338,  63  N.  W.  192.  In  that  case, 
while  the  method  of  making  assessments  and 
valuations  by  the  state  board  was  consid- 
ered, and  the  court  refused  to  interfere  with 
such  assessments  under  the  circumstances 
shown,  there  was  no  discussion  or  decision 
of  the  constitutionality  of  the  act  when  ad- 
ministered as  in  this  case.  In  that  case 
the  constitutionality  of  the  act  does  not 
seem  to  have  been  raised.  In  Re  Opinion 
of  Judges,  34  S.  D.  650,  147  N.  W.  729,  the 
judges  of  the  supreme  court  of  the  state 
declined  to  give  an  opinion  to  the  governor 
as  to  the  constitutionality  of  the  law  in 
question. 

In  Adams  Exp.  Co.  v.  Ohio  State  Auditor, 
165  U.  S.  194,  41  L.  ed.  683,  17  Sup.  Ct. 
R^.  305,  the  so-called  Nichols  law,  which 
had  been  sustained  by  the  supreme  court 
of  the  state  of  Ohio,  was  sustained  by  this 
[243]  court  as  against  an  attack  thereon 
under  the  14th  Amendment  to  the  Federal 
Constitution.  In  that  case,  the  manner  of 
taxation  was  entirely  different  from  the 
one  now  under  consideration.  The  law  per- 
mitted the  taking  into  consideration  of  the 
value  of  the  property  as  a  unit,  and  then 
ascertaining  and  assessing  the  proportion 
thereof  within  the  state  of  Ohio,  and  it  was 
held  that  such  proportionate  taxation  did 
not  violate  the  14th  Amendment  to  the  Fed- 
eral Constitution.  Another  case  greatly  re- 
lied upon  by  appellant  is  United  States 
148 


Exp.  Co.  T.  Minnesota,  223  U.  S.  336,  56 
L.  ed.  459,  32  Sup.  Ct  Rep.  211,  in  which 
a  statute  of  the  state  of  Minnesota  which 
undertook  to  tax  express  companies  upon 
their  property  employed  within  the  state, 
measured  by  the  gross  receipts  within  the 
state,  from  which  certain  deductiofis  were 
made,  was  attacked  as  in  violation  o!  the 
conunerce  clause  of  the  Federal  Constitu- 
tion, as  the  receipts  which  were  the  basis 
of  the  tax  were  derived  in  part  from  inter- 
state transportation.  In  that  case,  the  law 
was  specifically  authorized  by  the  Constitu- 
tion of  the  state,  as  a  means  of  reaching 
a  proper  valuation  of  the  express  compa- 
nies' property  within  the  state,  in  lieu  of 
all  other  taxes.  There  was  no  contention 
in  the  case  that  the  method  used  resulted 
in  an  excessive  valuation.  The  tax  was  sus- 
tained, as  against  the  attack  under  the 
commerce  clause,  upon  the  ground  that,  so 
far  as  interstate  commerce  receipts  were 
referred  to,  they  were  in  part  the  measure 
of  a  tax  within  the  legislative  power  of  the 
state,  and  not  in  any  just  sense  a  burden 
upon  interstate  conmieroe. 

We  reach  the  conclusion  that  the  circuit 
court  of  appeals  did  not  err  in  holding  this 
tax  as  in  fact  levied  and  assessed  to  be  in 
violation  of  the  Constitution  of  the  state. 

The  contention  is  made  that  there  was 
no  ground  for  equity  jurisdiction,  and  that 
therefore  the  bill  should  have  been  dis- 
missed. This  court  has  frequently  held 
that  a  bill  will  not  lie  in  the  Federal  oourts 
to  enjoin  the  collection  [244]  of  state  taxes 
where  a  plain,  adequate,  and  complete  rem- 
edy  at  law  has  been  given  to  recover  back 
illegal  taxes,  and  the  attack  upon  the  assess- 
ment is  based  upon  the  sole  ground  that  the 
same  is  illegal  and  void.  See  Singer  Sewing 
Mach.  Co.  V.  Benedict,  229  U.  S.  481,  57 
L.  ed.  1288,  33  Sup.  Ct.  Rep.  941,  where 
many  of  the  previous  cases  in  this  court 
are  reviewed.  But  in  the  present  case,  it 
was  alleged  not  only  that  the  assessment 
was  unwarranted  by  the  law,  but  that  the 
manner  of  making  the  assessment  amounted 
to  fraud  upon  the  constitutional  rights  of 
the  express  companies,  or  such  gross  mis- 
take as  would  amount  to  fraud,  thus  aver- 
ring a  distinct  and  weH-reoognized  ground 
of  equity  jurisdiction.  It  also  appears  that 
the  tax  of  1909  had  been  enjoined  similarly, 
and  that  from  the  decree  in  that  case  no 
appeal  had  been  taken.  Such  continuing 
violation  of  constitutional  rights  might  af- 
ford a  ground  for  equitable  relief.  See  Cum- 
mings  V.  Merchants'  Nat  Bank,  101  U.  S. 
163,  157,  168,  25  L.  ed.  908-905}  Stanley  v. 
Albany  County,  121  U.  S.  535.  550,  30  L. 
ed.  1000,  1003,  7  Sup.  Ct  Rep.  1234;  Fargo 
V.  Hart,  193  U.  S.  490,  503,  48  L.  ed.  761, 
767,  24  Sup.  Ct  Rep.  498;  Taylor  v.  Louis- 

2S»  U.  8. 


1915. 


O'NEILL  T.  LRAMKR. 


244 


fiUe  k  N.  R.  Co.  31  C.  C.  A.  537,  60  U.  S. 
App.  106,  88  Fed.  350. 

We  find  no  error  in  the  judgment  of  the 
Circuit  Court  of  Appeals,  and  the  lame  is 
tlfirmed. 


HSNRY   W.   O'NEILL   and   Comeliua   K. 
Hcfferman,  Plffs.  in  Err., 

T. 

JACOB  F.  LEAMER,  John  T.  Daley,  Fred 
Bartels,  et  al. 

(See  &  C.  Reporter's  ed.  244-254.) 

Error  to  iitate  court  —  scope  of  review 

—  non-Federal  question. 

1.  The  propriety  of  a  statutory  delega- 
tion of  authority  to  an  inferior  state  court 
in  the  matter  of  the  formation  of  a  drain- 
age district  is  a  state  question  not  open 
for  review  in  the  Federal  Supreme  Court  on 
writ  of  error  to  the  highest  state  court. 
[For  other  cases,  see  Appeal  and  Error,  2162- 

2163,  in  Dlirest  Sop.  Ct.   1908.] 

Courts  —  Jurisdiction  —  political  ques- 
tion —  republican  form  oX  govern- 
ment. 

2.  The  guaranty  to  each  state  in  U.  S. 

Const,  art.  4,  §  4,  of  a  republican  form  of 

government,  cannot  be  invoked  to  invalidate 

in  the  courts  the  proceedings  in  connection 

with  the  organization  and  management  of  a 

drainage  district. 

[For  other  cases,  see  Courts,  I.  e,  2,  in  Di- 
gest Sop.  Ct.   1908.] 

Error  to  state  court  —  Federal  question 

—  due  process  of  law. 

3.  A  contention  that  an  appropriation 
of  land  for  a  drainage  district  was  essential- 
ly for  a  private  purpose,  and  hence  contrary 
to  U.  S.  Const.,  14th  Amend.,  as  amounting 
to  a  deprivation  of  property  without  due 
process  of  law,  presents  a  Federal  question 
which  will  support  a  writ  of  error  from  the 
Federal  Supreme  Court  to  a  state  court, 
where  the  latter  court  denied  the  right  so 
asserted. 

[For  other  cases,  see  Appeal  and  Error,  189ft- 
1913,  in  Digest  Sup.  Ct.  1908.] 


Elmlnent  domain  —  public  or  private 
use  —  reclamation  of  swamp  lands. 

4.  The  power  of  eminent  domain  was 
not  exercised  for  private  purposes,  contrary 
to  U.  S.  Const.,  14th  Amend.,  by  condemna- 
tion proceedings  instituted  by  a  drainage 
district  organized  conformably  to  Neb.  Laws 
1006,  chap.  161,  and  Laws  1909,  chap. 
147,  which  provide  that  in  a  proceeding 
initiated  by  a  majority  in  interest  of 
the  owners  in  any  contiguous  body  of 
swamp  or  overflowed  lands  for  the  purpose 
of  having  such  land  reclaimed  and  protected 
from  the  effects  of  water,  the  district  court 
for  the  proper  county  may  declare  the 
drainage  district  as  deflned  to  be  a  public 
corporation  of  the  state,  although  the  fact 
that  any  propbsed  district  is  to  contain 
160  acres  or  more  of  wet  or  overflowed  lands 
is  made  by  the  statute  sufllcient  cause  for 
declaring  the  public  utility  of  the  improve- 
ment, where  the  highest  state  court  has  not 
sustained  the  act  as  applicable  to  any  case 
in  which  it  was  considered,  upon  a  judicial 
examination  of  the  facts,  that  the  under- 
taking served  private  interest  alone,  and 
the  district  in  question  embraces  a  large 
area  with  many  proprietors,  and  the  enter- 
prise was  iudiciallv  declared,  after  contest, 
to  be  a  public  utilitv,  and  conducive  to  the 
public  convenience,  health,  and  welfare. 
i^pr  oj-^er  oises.  see  Eminent  Domain.  I,  d. 
in  Digest  Sop.  Ct  1908.]  * 

[No.  33.] 

Argued  October  26  and  27,  1915.     Decided 
November  29,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Nebraska  to  review  a  decree 
which  affirmed  a  decree  of  the  District  Court 
of  Dakota  County,  in  that  state,  dismissing 
a  suit  to  enjoin  the  construction  of  a  drain- 
age ditch.     Affirmed. 

See  same  case  below,  93  Neb.  786,  142  N. 
W.  112. 
The  facts  are  stated  in  the  opinion. 


Note. — On  the  general  subject  of  writs  of 
error  from  Unit^  States  Supreme  Court 
to  state  courts — see  notes  to  Martin  v.. 
Hunter,  4  L.  ed.  U.  S.  07 ;  Hamblin  v.  West- 
ern Land  Co.  37  L.  ed.  U.  S.  267;  Re 
Buchanan,  39  L.  ed.  U.  S.  884;  and  Kipley 
▼.  Illinois,  42  L.  ed.  U.  S.  998. 

On  what  adjudications  of  state  courts 
can  be  brought  up  for  review  in  the  Supreme 
Court  of  the  United  States  by  writ  of  error 
to  those  courts — see  note  to  Apex  Transp. 
Co.  V.  Garbade,  72  L.RJk.  613. 

On  how  and  when  questions  must  be 
raised  and  decided  in  a  state  court  in  order 
to  make  a  case  for  a  writ  of  error  from  the 
Supreme  "Court  of  the  United  States — see 
note  to  Mutual  L.  Ins.  Co.  v.  McGrew,  63 
LRJk.  33. 

On  what  questions  the  Federal  Supreme 
Court  will  consider  in  reviewing  the  judg- 
BMnta  of  state  courts — see  note  to  Mis- 
souri ex  reL  Hill  v.  Dockery,  63  L.RJL.  671. 

On  error  to  state  eourts  in  cases  involv- 
•0  14.  ed. 


ing  questions  of  due  process  of  law — see  note 
to  Burt  V.  Smith,  51  L.  ed.  U.  S.  121. 

As  to  what  constitutes  a  taking  of  private 
property  for  public  use — see  notes  to  Mem- 
phis k  C.  R.  Co.  V.  Birmingham,  S.  &  T. 
River  R.  Co.  18  L.R.A.  166;  D.  M.  Osborne 
k  Co.  V.  Missouri  P.  R.  Co.  37  L.  ed.  U. 
S.  166;  Sweet  v.  Rechel,  40  L.  ed.  U.  S. 
188;  and  Backus  v.  Fort  Street  Union 
Deoot  Co.  42  L.  ed.  U.  S.  863. 

On  drainage  of  private  lands  as  public 
purpose  for  which  pK>wer  of  eminent  domain 
may  be  exercised — see  notes  to  Re  Tuthill, 
49  L.R.A.  781;  and  Henderson  t.  Lexing- 
ton, 22  L.R.A.(N.S.)   163. 

As  to  right  to  take  property  for  irriga- 
ting or  draining  private  lands— see  note  to 
Nash  V.  CUrk,  1  L.RJk.(N.S.)   208. 

On  institution  of  drainage  proceeding  by 
organization  of  drainage  district— see  notes 
to  State  ex  rel.  Utick  v.  Polk  County,  60 
L.R.A.  169;  and  Waterbury  v.  Piatt  Broa. 
&  Co.  60  LJLA.  229. 

%4% 


SUPREME  COUKT  OF  THE  UNITED  STATES. 


Oor.  Tku, 


Mr.  William  V.  Allen  argued  the  cauBe, 
and,  with  Mr.  M.  D.  l^ler,  filed  a  brief  for 
plaintiffs  in  error: 

The  motion  to  dismiss  or  affirm  should  be 
denied. 

Hecker  y.  Fowler,  1  Black,  95,  96,  17  L. 
cd.  46;  Sparrow  y.  Strong,  3  WalL  97,  105, 
18  L.  ed.  49,  50,  2  Mor.  Min.   Rep.  320; 
Blythe  y.  Hinckley,  180  U.  S.  333,  338,  45 
L.   ed.   557,    561,   21    Sup.    Ct.    Rep.    390; 
American  Sugar  Ref.  Co.  y.  Louisiana,  179 
U.  S.  88,  91,  45  L.  ed.  102,  103,  21  Sup. 
Ct.    Rep.    43;    Virginia-Carolina    Chemical 
Co.  y.  Kinren,  215  U.  S.  252,  257,  54  L.  ed. 
179,   184,   30   Sup.   Ct.    Rep.   78;    Chicago, 
B.  &  Q.  R.  Co.  y.  Chicago^  166  U.  S.  226, 
228,  232,  41  L.  ed.  979,  982,  983,  17  Sup. 
Ct.  Rep.  581 ;  Semple  y.  Hagar,  4  Wall.  431, 
435,  18  L.  ed.  402,  403;  Lynch  y.  DeBcrnal, 
131   U.  S.   94,   appx.   and   19   L.   ed.   395; 
Mandelbaum   y.   Nevada,   8   Wall.   311,    19 
L.  ed.  479:  Chicago  L.  Ins.  Co.  y.  Needles, 
113  U.  S.  574,  576,  585,  28  L.  ed.  1084,  1086, 
1088,  5  Sup.  Ct.  Rep.  681;  Eureka  Lake  k 
Y.  Canal  Co.  y.  Superior  Ct.  116  U.  S.  410. 
418,  29  L.  ed.  671,  674,  6  Sup.  Ct   Rep. 
429;  Kaukauna  Water  Power  y.  Green  Bay 
&  M.  Canal  Co.  142  U.  S.  254,  269,  282,  35 
L.  ed.  1004,  1009,  1014,  12  Sup.  Ct.  Rep. 
173;  Central  of  Georgia  R.  Co.  y.  Wright, 
166  Fed.   157;    Bridge  Proprietors  y.   Ho- 
boken  Land  &   Improv.   Co.    1   Wall.    116, 
142,  155,  17  L.  ed.  571,  575,  580;  Furman  y. 
Nichol,  8  Wall.  44-64,  19  L.  ed.  370-378; 
Satterlee  y.  Matthewson,  2  Pet.  380.  409, 
410,  7  L.  ed.  458,  467,  468;   Chambers  y. 
Baltimore  k  0.  R.  Co,  207  U.  8.  142,  148, 
52  L.  ed.  143,  146,   28  Sup.  Ct.   Rep.  34; 
Hunter  y.  Pittsburgh,  207  U.  S.  161,  176, 
52  L.  ed.  151,   158,  28  Sup.  Ct.  Rep.  40; 
Louisville  k  N.  R.  Co.  y.  Melton,  218  U.  S. 
36,  46,  48,  54  L.  ed.  921,  925,  926,  47  LJIA. 
(N.S.)  84,  30  Sup.  Ct.  Rep.  676;  Wilson  v. 
Black  Bird  Creek  Marsh  Co.  2  Pet.  245, 
251,  7  L.  ed.  412,  414;  Crowell  y.  Randell, 
10  Pet.  368,  398,  9  L.  ed.  458,  470;   Mur- 
dook  y.  Memphis,  20  Wall.  590,  642.  22  L.  ed. 
429,  446;  Murray  v.  Charleston,  96  U.  S.  432, 
442,  443,  449,  24  L.  ed.  760-7G2,  764 ;  Green 
Bay  k  M.  Canal  Co.  v.  Patten  Paper  Co.  172 
U.  S.  58,  68,  43  L.  ed.  364,  368,  19  Sup.  Ct. 
Rep.  97;  Dewey  v.  Des  Moines,  173  U.  S.  193, 
200,  43  L.  ed.  665,  667,  19  Sup.  Ct.  Rep. 
379;  St.  Louis,  I.  M.  k  S.  R.  Co.  y.  Taylor, 
210  U.  S.  281,  296,  52  L.  ed.  1061,  1067,  28 
Sup.  Ct.  Rep.  616,  21  Am.  Neg.  Rep.  464; 
Powell  y.  Brunswick  County,  150  U.  S.  433, 
440,  37  L.  ed.  1134,  1136,  14  Sup.  Ct.  Rep. 
166;  Sayward  t.  Denny,  158  U.  S.  180,  184, 
39  L.  ed.  941,  042,  15  Sup.  Ct.  Rep.  777; 
Home  for  Incurables  y.  New  York,  187  U. 
S.  155, 157,  47  L.  ed.  117, 118,  63  L.R.A.  329, 
23  Sup.  Ct.  Rep.  84;  Mutual  L.  Ins.  Co.  y. 
MoQrew»  188  U.  S.  291,  308,  300,  47  L.  ad.  > 
.950 


480,  484,  485,  63  L.RJ^.  88,  28  Sup.  Ct 
Rep.  375;  Montana  «z  raL  Haira  t.  Rios^ 
204  U.  S.  201,  200,  51  L.  ed.  400,  404,  27 
Sup.  Ct.  Rep.  281;  Si.  Louis,  L  M.  ft  8.  R. 
Co.  V.  Hesterly,  228  U.  S.  702,  704,  67  L. 
ed.  1031,  1033,  33  Sup.  Ct.  Rep.  703;  Arm- 
strong y.  Athens  County,  16  Pet.  281,  285, 
10  L.  ed.  065,  066;  Chicago,  B.  k  Q.  R.  Co. 
V.  Illinois,  200  U.  S.  561,  565,  580,  50  L.  ed. 
596,  602,  604,  26  Sup.  Ct.  Rep.  341,  4  Ann. 
Cas.  1175;  West  Chicago  Street  R.  Co.  y. 
Illinois,  201  U.  S.  506,  510,  520,  60  L.  ed. 
845,  850,  851,  26  Sup.  Ct.  Rep.  518;  Cincin- 
nati, P.  B.  S.  k  P.  Pocket  Co.  y.  Bay,  200 
U.  S.  179,  182,  50  L.  ed.  428,  432,  26  Sup. 
Ct.  Rep.  208;  Arrowsmith  y.  Harmoning,  118 
U.  S.  194,  196,  30  L.  ed.  243,  6  Sup.  Ct  Rep. 
1023;  Commonwealth  Bank  y.  Griffith,  14 
Pet.  56,  58,  10  L.  ed.  352,  353;  Home  Ins. 
Co.  y.  Augusta,  93  U.  S.  116,  123,  23  L.  ed. 
825,  826;  Bunn,  United  States  Courts,  pp. 
19-21 ;  Harding  y.  Illinois,  196  U.  S.  78,  84, 
49  L.  ed.  394,  396,  25  Sup.  Ct.  Rep.  176. 

This  court  has  jurisdiction  to  review  a  de* 
cision  of  a  state  court  in  a  case  in  which 
the  validity  of  a  state  statute  is  drawn  in 
question  as  repugnant  to  the  Federal  Con* 
stitution,  where  the  decision  was  in  favor 
of  its  validity. 

Craig  y.  Missouri,  4  Pet  410,  426,  420, 
430,  7  L.  ed.  903,  910,  911;  Byrne  y.  Mia- 
souri,  8  Pet  40,  42,  8  L.  ed.  859,  860;  Wor- 
cester y.  Georgia,  6  Pet  515,  541,  8  L.  ed. 
483,  494 ;  Edwards  y.  Elliott  21  Wall.  532- 
558,  22  L.  ed.  487-492;  Daniels  y.  Tearney, 
102  U.  S.  415-422,  26  L.  ed.  187-189;  Fire 
Asso.  of  Philadelphia  y.  New  York,  119  U. 
S.  110,  112,  116,  129,  30  L.  ed.  342,  345,  346, 
350,  7  Sup.  Ct.  Rep.  108;  McPherson  T. 
Blacker,  146  U.  S.  1,  22,  42,  36  L.  ed.  869, 
873,  879,  13  Sup.  Ct.  Rep.  3;  Sully  y.  Am- 
erican Nat  Bank,  178  U.  S.  289,  207,  44 
L.  ed.  1072,  1076,  20  Sup.  Ct.  Rep.  935. 

A  decision  of  the  Federal  question  in 
terms  is  not  essential.  If  a  decision  of  such 
question  was  necessarily  involved  in  the  judg- 
ment, it  is  not  a  matter  of  importance  that 
the  state  court  avoided  all  reference  to  it 

Chapman  y.  Goodnow  (Chapman  t. 
Crane)  123  U.  S.  540,  31  L.  ed.  235,  8  Sup 
Ct.  Rep.  211 ;  Chicago  L.  Ins.  Co.  v.  Needles, 
113  U.  S.  574,  28  L.  ed.  1084,  5  Sup.  Ct. 
Rep.  681 ;  Bell's  Gap  R.  Co.  v.  Pennsylvania, 
134  U.  S.  232,  33  L.  ed.  892,  10  Sup.  Ct 
Rep.  533;  Chicago,  B.  k  Q.  R.  Co.  y.  Chicago^ 
166  U.  S.  226,  41  L.  ed.  979,  17  Sup.  Ct  Rep. 
581;  Consolidated  Coal  Co.  v.  Illinois,  185 
U.  S.  203,  46  L.  ed.  872,  22  Sup.  Ct.  Rep. 
616;  F.  G.  Oxley  Stave  Co.  v.  Butler  County, 
166  U.  S.  648,  652,  655,  660,  41  L.  ed.  1140, 
1151-1153,  17  Sup.  Ct.  Rep.  709;  Missouri, 
K.  &  T.  R.  Co.  y.  Elliott  184  U.  S.  530,  533, 
534,  46  L.  ed.  673,  674,  676,  22  Sup.  Ct.  Rep. 
446;  Soott  T.  MdNeal,  164  U.  S.  84,  45,  38 

280  V.  8. 


1016. 


O'NEILL  T.  TJIAMER. 


L.  td.  896,  001,  14  Snp.  Ct  Rep.  1108;  Mo- 
bile 4  O.  R.  Co.  T.  Tennessee,  153  U.  S.  486, 
403,  38  L.  eel.  793,  796,  14  Sup.  Ct.  Hep. 
068;  Huntington  t.  Attrill,  146  U.  S.  667, 
681,  689,  36  L.  ed.  1123,  1133,  1136,  13 
Sup.  Ct.  Rep.  224;  Ohio  L.  Ins.  ft  T.  Co.  t. 
DeBolt,  16  How.  416,  426,  432,  433,  14  L. 
ed.  007,  1001,  1003,  1004. 

To  justify  the  conclusion  that  a  pleading 
is  frivolous,  it  must  be  not  only  without 
adequate  reason,  but  so  clearly  and  plainly 
without  foundation  that  the  defect  appears 
upon  mere  inspection,  and  indicates  that  its 
interposition  was  in  bad  faith. 

Cook  V.  Warren,  88  N.  T.  38;  Toungs  t. 
Kent,  46  N.  T.  672;  Lerdall  v.  Charter  Oak 
L.  Ins.  Co.  61  Wis.  426,  8  K.  W.  283. 

This  being  a  case  in  which  analysis  and 
ezpoeition  are  necessary  to  determine  the 
Talidity  of  the  sist  involTed,  the  writ  of 
error  cannot  be  said  to  be  frivolous. 

Louisville  &  N.  R.  Co.  v.  Melton,  218  U. 
8.  36,  48,  62,  64  L.  ed.  021;  926,  927,  47 
L.R.A.(N.8.)  84,  30  Sup.  Ct.  Rep.  676. 

The  act  in  question  authorizes  the  taking 
of  private  property  for  a  private  purpose, 
and  is  therefore  void. 

Lake  Erie  ft  W.  R.  Co.  t.  Hancock  County, 
63  Ohio  St.  23,  67  N.  E.  1000;  Chicago  ft 
E.  R.  Co.  V.  Keith,  67  Ohio  St.  279,  60 
LJLA.  626,  66  N.  E.  1020;  Donnelly  v.  Deck- 
er, 58  Wis.  467,  46  Am.  Rep.  637,  17  N.  W. 
880;  Re  Ryers,  72  N.  T.  1,  28  Am.  Rep. 
88;  Re  Theresa  Drainage  Dist.  90  Wis.  301, 
63  N.  W.  288;  Fleming  t.  Hull,  73  Iowa, 
608,  36  N.  W.  673;  McQuillen  t.  Hatton,  42 
Ohio  St.  204;  State  ex  rel.  Shubert  v.  Rock- 
ford,  102  Minn.  442,  120  Am.  St.  Rep.  640, 
114  N.  W.  246;  Reeves  v.  Wood  County,  8 
Ohio  St.  333;  Kinnie  t.  Bare,  68  Mich.  626, 
36  N.  W.  673;  Anderson  t.  Hill,  64  Mich. 
477,  20  N.  W.  666;  Wilcox  v.  Paddock,  66 
Mich.  23,  31  N.  W.  612;  Atty.  Gen.  ex  rel. 
Alexander  v.  McLear,  146  Mich.  45,  100  N. 
W.  28;  GifTord  Drainage  Dist.  v.  Shroer, 
145  Ind.  672,  44  N.  E.  636;  Re  Tuthill,  163 
N.  Y.  133,  49  L.R.A.  781,  79  Am.  St.  Rep. 
574,  67  N.  E.  303;  Priewe  v.  Wisconsin  State 
Land  ft  Improv.  Co.  93  Wis.  634,  33  L.R.A. 
645,  67  N.  W.  918;  14  Cyc.  1026;  People 
ex  rel.  Pulman  v.  Henion,  64  Hun,  471,  19 
N.  Y.  Supp.  488;  Gilbert  v.  Foote,  cited  in 
White  T.  White,  6  Barb.  483;  Woodruff  t. 
Fisher,  17  Barb.  224;  Chaplin  v.  Highway 
Gomrs.  129  HL  661,  22  N.  E.  484;  Re  Pen- 
Held,  3  App.  Div.  30,  37  N.  Y.  Supp.  1066; 
Re  Chili,  6  Hun,  116;  Chesbrough  v.  Put- 
nam ft  Paulding  Counties,  37  Ohio  St.  608; 
State  ex  reL  Witte  v.  Curtis,  86  Wis.  140, 
56  N.  W.  476;  Cooley,  Const  lim.  ed.  1003, 
p.  768;  Missouri  P.  R.  Co.  t.  Nebraska,  164 
U.  S.  403,  417,  41  L.  ed.  489,  496,  17  Sup. 
Ct.  Rep.  130;  Union  Refrigerator  Transit 
Co.  V.  Kentucky,  100  U.  8.  104,  202,  203, 
•0  li.  ed. 


60  L.  ed.  160,  162,  163,  26  Sup.  Ct.  Rep. 
36,  4  Ann.  Cas.  493;  1  Lewis,  EnL  Dom.  3d 
ed.  §§  257,  258;  Nichols,  Em.  Dom.  1900,  p. 
274;  Jenal  v.  Green  Island  Draining  Co.  12 
Neb.  163,  10  N.  W.  547 ;  Rutherford's  Case, 
72  Pa.  82,  13  Am.  Rep.  667;  Anderson  t. 
Kerns  Draining  Co.  14  Ind.  100,  77  Am. 
Dec.  66;  Tjler  v.  Beacher,  44  Vt  648,  8 
Am.  Rep.  308;  Nickey  v.  Steams  Ranches 
Co.  126  CaL  160,  68  Pac  460;  People  ex 
rel.  Butler  t.  Saginaw  County,  26  Mich. 
20;  Atty.  Gen.  v.  Eau  Claire,  87  Wis.  401; 
Zigler  T.  Menges,  121  Ind.  00,  16  Am.  St. 
Rep.  862,  22  N.  E.  782;  Smith  v.  Atlantic 
ft  G.  W.  R.  Co.  26  Ohio  St.  01;  Minnesota 
Caaal  ft  Power  Co.  v.  Koochiching  Co.  97 
Minn.  420,  6  LJtJk.(N.6.)  638,  107  N.  W. 
405,  7  Ann.  Cas.  1182;  2  Famham,  Waters, 
1914^  i  170,  p.  003,  S  171,  pp.  917,  918,  § 
179,  p.  961,  $  181,  p.  966;  Re  Drainage  along 
Pequest  River,  41  N.  J.  L.  181;  jDble  v. 
Dooley,  137  Mich.  419,  100  N.  W.  662;  Webb 
V.  Lucas,  126  Minn.  403,  147  N.  W.  274; 
Cjrpress  Pond  Draining  Co.  v.  Hooper,  2  Met. 
(Ky.)  350;  State,  Kean,  Prosecutor,  t. 
Driggs  Drainage  Co.  46  N.  J.  L.  01;  Com- 
mercial Nat.  Bank  v.  lola,  0  Kan.  689,  2 
Dill.  353,  Fed.  Cas.  No.  3,061;  Ryerson  v. 
Brown,  36  Mich.  333,  24  Am.  Rep.  664; 
ScufBetown  Fence  Co.  v.  McAllister,  12  Bush, 
312;  Re  Eureka  Basin  Warehouse  ft  Mfg. 
Co.  96  N.  Y.  45;  1  Lewitf.  Km.  Dom.  3d  ed. 
§  312,  p.  689;  Citizens'  Sav.  ft  L.  Asso.  t. 
Topeka,  20  Wall.  655,  22  L.  ed.  466;  Park- 
ersburg  v.  Brown,  106  U.  S.  487,  604,  27 
L.  ed.  238,  245;  Cole  v.  LaGrange,  113  U.  S. 
1-9,  28  L.  ed.  896-899,  6  Sup.  Ct.  Rep.  416; 
Chicago,  B.  ac  Q.  R.  Co.  V.  Chicago,  166  U. 
S.  226-263,  41  L.  ed.  979-994,  17  Sup.  Ct 
Rep.  681;  West  River  Bridge  Co.  v.  Dix, 
6  How.  607,  647,  12  L.  ed.  635,  662;  Kau- 
kaima  Water  Power  Co.  t.  Green  Bay  ft  M. 
Canal  Co.  142  U.  S.  264-282,  36  L.  ed.  1004- 
1014,  12  Sup.  Ct.  Rep.  173;  Osborne  v. 
Adams  County,  106  U.  S.  181-183,  27  L.  ed. 
129,  1  Sup.  Ct.  Rep.  168;  Cleveland  Electric 
R.  Co.  V.  Cleveland,  204  U.  S.  116-142,  61 
L.  ed.  300-411,  27  Sup.  Ct.  Rep.  202. 

The  l^islature  cannot  make  a  private 
purpose  a  public  one  by  mere  fiat. 

Dodge  V.  Mission  Twp.  54  L.R.A.  242, 
46  C.  C.  A.  661,  107  Fed.  829 ;  State  ex  rel. 
Schubert  v.  Rockford,  102  Minn.  442,  120 
Am.  St.  Rep.  640,  114  N.  W.  246;  Brown 
V.  Gerald,  100  Me.  361,  70  LJUL  472,  100 
Am.  St.  Rep.  526,  61  Atl.  786;  Healy  Lum- 
ber Co.  V.  Morris,  33  Wash.  490,  63  L.ILA. 
820,  00  Am.  St.  Rep.  964,  74  Pac  681; 
Denver  R.  Land  ft  Coal  Co.  v.  Union  P.  R. 
Co.  34  Fed.  386. 

Whether  the  use  is  public  or  private  is 
a  judicial  question,  to  be  determined  by 
the  court. 

Re  NUgara  Falls  ft  W.  R.  Co.  108  N. 

S51 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Twmm, 


T.  385,  16  N.  E.  420;  Pocantioo  Water- 1 
works  Co.  ▼.  Bird,  130  N.  T.  268,  29  N.  E.  j 
246;  Logan  v.  Stogsdale,  123  Ind.  372,  8 
L.R.A.  58,  24  N.  E.  135 ;  Washington  Water 
Power  Co.  v.  Waters,  186  Fed.  572;  Allen 
T.  Jay,  60  Me.  139,  11  Am.  Rep.  185;  I^ler 
T.  Beacher,  44  Vt.  651,  8  Am.  Rep.  398; 
Re  Eureka  Basin  Warehouse  k  Mfg.  Co. 
06  N.  Y.  47;  Dodge  t.  Mission  Twp.  54 
L.R.A.  242,  46  C.  G.  A.  661,  107  Fed.  820. 

To  constitute  a  public  use  it  is  necessary 
that  the  general  public  be  to  some  extent 
entitled  to  control  the  property  appropri- 
ated, or  have  a  right  to  a  fixed  and  definite 
use  of  it,  not  as  a  mere  matter  of  favor 
or  by  permission  of  the  owner,  but  %s  a 
matter  of  right. 

Gaylord  v.  Sanitary  Dist.  204  111.  676, 
63  L.R.A.  582,  98  Am.  Si.  Rep.  235,  68 
N.  E.  522  f  Minnesota  Canal  A  Power  Co.  v. 
Koochiching  Co.  97  Minn.  429,  6  L.R.A 
(N.S.)  648,  107  N.  W.  405,  7  Ann.  Cas. 
1182;  Berrien  Springs  Water  Power  Co.  v. 
Berrien  Circuit  Ju(^,  133  Mich.  48,  103 
Am.  St.  Rep.  438,  94  N.  W.  379. 

A  use  which  may  be  monopolized  or  ab- 
sorbed by  a  few,  and  from  which  the  general 
public  may  and  must  alternatively  be  ex- 
cluded, is  in  no  sense  a  public  use. 

Board  of  Health  v.  Van  Hoesen,  87 
Mich.  533,  14  L.RJL  114,  49  N.  W.  894. 

If  the  benefit  to  be  derived  from  the 
lands  sought  to  be  appropriated  is  wholly 
for  private  persons,  the  use  is  a  private 
one,  and  is  not  made  a  public  use  by  the 
fact  that  the  public  has  a  theoretical  right. 

Pittsburg,  W.  &  K.  R.  Co.  t.  Benwood 
Iron  Works,  31  W.  Va.  710,  2  L.RJ^.  680, 
8  S.  E.  453. 

Not  only  must  the  purpose  for  which  the 
land  is  taken  be  one  in  which  the  public 
has  an  interest,  but  the  state  must  have  a 
voice  in  the  manner  in  which  the  public 
may   avail   itself  of   that  use. 

Board  of  Health  v.  Van  Hoesen,  supra; 
Kettle  River  R.  Co.  v.  Eastern  R.  Co.  41 
Minn.  461,  6  LJRJL.  Ill,  43  N.  W.  469; 
Re  Bums,  165  N.  Y.  23,  49  N.  E.  246; 
Pocantico  Waterworks  Co.  v.  Bird,  130  N. 
Y.  249,  29  N.  E.  246;  Re  Niagara  Falls  & 
W.  R.  Co.  108  N.  Y.  376,  16  N.  E.  429; 
Re  New  York,  L.  &  W.  R.  Co.  99  N.  Y.  24, 
1  N.  E.  27;  Re  Eureka  Basin  Warehouse 
A  Mfg.  Co.  96  N.  Y.  42;  Bridal  Veil  Lum- 
bering Co.  ▼.  Johnson,  30  Or.  206,  34  hJRJi 
868,  60  Am.  St.  Rep.  818,  46  Pac.  790; 
Re  Rhode  Island  Suburban  R.  Co.  22  R.  I. 
467,  62  LJLJl.  879,  48  Atl.  691. 

The  following  legislative  acts  have  been 
held  unconstitutional  and  void  as  promoting 
a  private  purpose: 

State  «z  reL  Bowen  ▼•  Adams  County, 
15  Neb.  668,  20  N.  W.  96  (bonds  to  aid  a 
S52. 


steam  gristmill) ;  Getehell  t.  Benton,  80 
Neb.  870,  47  N.  W.  468  (bonds  to  aid  a 
beet  sugar  mill) ;  Citizens'  Sav.  k  L.  Asso. 
V.  Topeka,  20  Wall  665,  670,  20  L.  ed. 
465,  463  (bonds  of  municipality  to  pay 
manufacturing  company ) ;  Hanson  v.  Ver- 
non, 27  Iowa,  47,  ).  Am.  Rep.  215  (tax  to 
aid  in  construction  of  a  railroad) ;  Os- 
borne V.  Adams  County,  106  U.  S.  181,  183, 
27  L.  ed.  129,  1  Sup.  Ct.  Rep.  168;  Os- 
borne V.  Adams  County,  109  U.  S.  1,  2, 
27  L.  ed.  835,  3  Sup.  Ct.  Rep.  150  (bonds 
to  aid  a  steam  gristmill ) ;  Weismer  t. 
Douglas,  64  N.  Y.  91,  21  Am.  Rep.  686 
(authorizing  a  municipal  corporation  to 
issue  bonds  to  buy  stock  in  a  private  cor- 
poration) ;  Re  Eureka  Basin  Warehouse  k 
Mfg.  Co.  96  N.  Y.  42  (authorising  a  cor- 
poration formed  for  manufacturing,  mining, 
or  other  chemical  purposes  to  acquire  land 
by  eminent  domain);  Michigan  Sugar  Co. 
V.  Auditor  General,  124  Mich.  674,  66 
L.R.A.  329,  83  Am.  St.  Rep.  354,  83  N. 
W.  625  ( providing  for  the  payment  of  bonds 
to  sugar  beet  growers) ;  Wisconsin  Keeley 
Institute  (^.  v.  Milwaukee  County,  95  Wis. 
153,  36  L.RJi.  55,  60  Am.  St.  Rep.  106, 
70  N.  W.  68  (to  treat  habitual  drunkards 
at  a  private  institution) ;  Baltimore  k 
E.  S.  R.  Co.  V.  Spring,  80  Md.  510,  27 
L.R.A.  72,  31  Atl.  208  (money  for  the  bene- 
fit of  an  insolvent  railroad) ;  Opinion  of 
Justices,  155  Mass.  598,  16  L.R.A.  809,  30 
N.  E.  1142  (to  purchase  and  distribute  fuel 
to  inhabitants  of  a  municipality) ;  Under- 
wood V.  Wood,  93  Ky.  177,  15  L.R.A.  825, 

19  S.  W.  405  (for  payment  of  tuition  of 
pupils  to  attend  private  academies) ;  Re 
Barre  Water  Co.  62  Vt.  27,  9  L.RJ^.  195, 

20  Atl.  109  (to  distribute  water  power  to 
private  consumers) ;  Bush  v.  Orange  Coun- 
ty, 159  N.  Y.  212,  45  L.RJ^.  556,  70  Am. 
St  Rep.  638,  53  N.  E.  1121  (to  raise 
money  to  pay  drafted  men  serving  in  the 
Union  Army  or  their  heirs) ;  Parkersburg 
V.  Brown,  106  U.  S.  487,  491,  27  L.  ed. 
238,  240,  1  Sup.  Ct.  Rep.  442;  Cole  v.  La- 
Grange,  113  U.  S.  1,  9,  28  L.  ed.  896,  898, 
5  Sup.  Ct.  Rep.  416;  Dodge  v.  Mission 
Twp.  54  L.RJL  242,  46  C.  C.  A.  661,  107 
Fed.  832;  Allen  v.  Jay,  60  Me.  124,  11  Am. 
Rep.  185;  Coates  v.  Campbell,  37  Minn. 
498,  36  N.  W.  366  (bonds  to  aid  manu- 
facturers) ;  Lowell  v.  Boston,  111  Mass. 
454,  15  Am.  Rep.  89  (bonds  to  aid  sufferers 
from  Boston  fire) ;  Patty  ▼.  Colgan,  97 
CaL  251,  18  LJUL  744,  31  Pac  1133  (aid 
to  flood  sufferers) ;  Lucas  County  v.  State 
(Davies  v.  State)  76  Ohio  St.  136,  7  L.R.A. 
(N.S.)  1196,  78  N.  E.  965  (annuities  for 
the  blind) ;  State  ex  rel.  Garrett  v.  Froeh- 
Uch,  118  Wis.  129,  61  L.R.A.  346,  99  Am. 
Si.  Rap.  986,  94  N.  W.  60  (bounty  to  privats 
inebriate  hospital)  i  State  ex  rel.  Garth  t. 

S8II  V.  8. 


1915 


O'NEILL  Y.  LKAMER. 


Switzler,  143  Mo.  287,  40  L.R.A.  280,  65  Am. 
St.  Hep.  653,  45  S.  W.  245  (bounty  to  stud- 
ents attending  state  university) ;  Kingman 
T.  Broclaon,  153  Mass.  255,  11  L.H.A.  123, 
26  N.  E.  008  (aid  in  erection  of  building 
for  Grand  Army  post) ;  State  ex  rel.  Grif- 
fith y.  Osawkee  Twp.  ll^Kan.  418,  10  Am. 
Rep.  00  (furnishing  seed  grain  to  farm- 
ers) ;  William  Deering  k  Co.  t.  Peterson, 
75  Minn.  113,  77  N.  W.  568  (appropriation 
to  purchase  seed  grain  for  those  without 
crops) ;  Deal  y.  Mississippi  County,  107 
Mo.  464,  14  L.R.A.  622,  18  S.  W.  24  (boun- 
ties  to  growers  of  trees) ;  Missouri  P.  R. 
Co.  T.  Nebraska,  1G4  U.  S.  403,  41  L.  ed. 
489,  17  Sup.  a.  Rep.  130  (taking  of  rail- 
way light  of  way  for  private  elevator) ; 
Atchisjn,  T.  &  8.  F.  R.  Co.  v.  Campbell,  61 
Kan.  430,  48  L.R.A.  251,  78  Am.  St.  Rep. 
328,  59  Pac.  1051  (free  tickets  to  stock  ship- 
pers) ;  Harp  v.  Choctaw,  O.  k  G.  R.  Co. 
118  Fed.  169  (compelling  building  of  spur 
track  to  coal  mine) ;  Oxnard  Beet  Sugar 
Co.  V.  State,  73  Neb.  66,  102  N.  W.  80, 
105  N  W.  716;  Blichigan  Sugar  Co.  v. 
Auditor  General,  124  Mich.  674,  56  L.R.A. 
320,  83  Am.  St.  Rep.  354,  83  S.  W.  625; 
Minnesota  Sugar  Co.  v.  Iverson,  91  Minn. 
30,  07  N.  W.  455  (bounty  for  growers  of 
•ugmr  beets). 

The  constitutional  validity  of  a  statute 
is  to  be  tested  not  by  what  has  been  done 
under  it,  but  by  what  may,  by  its  authority, 
be  done. 

Stuart  V.  Palmer,  74  N.  Y.  188,  30  Am. 
Rep.  289;  Gilman  T.  Tucker,  128  N.  Y. 
200,  13  L.RJ^.  304,  26  Am.  St.  Rep.  464, 
2^  N.  E.  1040;  MonUna  Co.  v.  St.  Louis 
Min.  k  Mill.  Co.  152  U.  S.  160-172,  38 
Lw  ed.  30S-401,  14  Sup.  Ct.  Rep.  506. 

A  mere  legislative  declaration  of  the 
purpose  of  the  act  is  not  binding,  and  can- 
not conceal  its  real  object. 

Lochner  v.  New  York,  198  U.  8.  45-76, 
49  L.  ed.  937-040,  25  Sup.  Ct.  Rep.  539, 
3  Ann.  Cas.  1133;  Webster  v.  Susquehanna 
Pole  Line  Co.  112  Md.  416,  76  Atl.  254, 
21  Ann.  Cas.  357;  Salisbury  Land  k  Im- 
proY.  Co.  Y.  Com.  215  Mass.  371,  46  ImRJL. 
(N.S.)    1201,  102  N.  E.  619. 

The  application  and  hearing  were  strict- 
ly esp  parte,  and  in  no  sense  due  process  of 
law. 

Wilber  V.  Reed,  84  Neb.  767,  122  N.  W. 
63;  People  ex  rel.  Stephens  v.  Tallman,.36 
Barb.  222;  Brooklyn  v.  Franz,  87  Hun,  54, 
83  N.  Y.  Supp.  869;  Seifert  v.  Brooks,  34 
Wis.  443;  State  ex  rel.  Flint  ▼.  Fond  du 
Lac,  42  Wis.  287;  Pennoyer  v.  Ncflf,  05  U. 
8.  714-748,  24  L.  ed.  565-578;  Chicago, 
H.  k  St.  P.  R.  Co.  ▼.  Minnesota,  134  U. 
8.  418,  466,  33  L.  ed.  970,  985,  8  Inters. 
Com.  Rep.  209,  10  Sup.  Ct.  Rep.  462,  702. 

A  flooding  of  land  is  a  taking  within  the 
Beaning  of  the  law  of  eminent  domain. 
•0  li.  ed. 


Pumpelly  t.  Green  Bay  k  M.  Canal  Co. 
13  Wall.  166,  182,  20  L.  ed.  557,  561; 
United  SUtes  v.  Lynah,  188  U.  S.  445,  47 
L.  ed.  539,  23  Sup.  Ct.  Rep.  349;  Williams 
T.  United  States,  104  Fed.  50;  Nichols, 
Em.  Dom.  ed.  1900,  $  61;  Manigault  v. 
Springs,  199  U.  S.  473,  484,  50  L.  ed.  274, 
280,  26  Sup.  Ct.  Rep.  127 ;  King  y.  United 
States,  50  Fed.  9. 

The  rule  in  Nebraska  is  that  the  dam- 
ages must  be  paid,  or  the  payment  thereof 
secured,  before  the  property  is  taken. 

Republican  Valley  R.  Co.  y.  Fink,  18 
Neb.  85,  24  N.  W.  439;  Hull  y.  Chicago, 
B.  k  Q.  R.  Co.  21  Neb.  374,  32  N.  W.  162 ; 
Zimmerman  v.  Kearney  County,  33  Neb. 
622,  50  N.  W.  1126;  Livingston  v.  John- 
son County,  42  Neb.  280,  60  N.  W.  555; 
Hodges  y.  Seward  County,  49  Neb.  668, 
68  N.  W.  1027;  Lewis  v.  Lincoln,  55  Neb. 

4,  75  N.  W.  154;  Chicago,  B.  &  Q.  R.  Co. 
v.  Douglas  County,  1  Neb.  (Unof.)  250, 
95  N.  W.  339;  Hogsett  v.  Harlan  County, 
4  Neb.  (Unof.)  312,  97  N.  W.  316. 

The  taking  is  ordinarily  the  formal  act 
of  some  responsible  body,  consisting  of  the 
passing  of  a  vote  or  the  filing  of  some  docu- 
ments, and  the  time  and  extent  of  the  tak- 
ing are  thus  definitely  fixed;  but,  in  the 
absence  of  a  formal  taking,  actual  author- 
ized physical  interference  with  the  property 
marks  the  punctum  tetnporis. 

Nichols,  Km.  Dom.  1909  ed.  p.  206,  §  170. 

The  land  to  be  appropriated  must  be 
identified  with  as  much  certainty  as  is  re- 
quired in  a  conveyance. 

Warren  y.  Brown,  31  Neb.  18,  47  N.  W. 
633;  Rice  v.  Danville,  L.  k  T.  P.  Road  0>. 
7  Dana,  81;  15  Cyc.  855,  857;  St.  Louis  k 

5.  F.  R.  Co.  y.  Southwestern  Teleph.  k 
Teleg.  Co.  58  C.  C.  A.  198,  121  Fed.  282; 
Re  Marsh,  71  N.  Y.  317;  Lyon  y.  Jerome, 
26  Wend.  ^5,  37  Am.  Dec.  271;  Re  New 
York  C.  ft  H.  R.  R,  Co.  70  N.  Y.  192; 
Re  Amsterdam  Water  Comrs.  96  N.  Y. 
357;  Bell  Teleph.  Co.  y.  Parker,  187  N.  Y. 
303,  79  N.  E.  1008. 

The  state  cannot,  by  the  violation  of  its 
Constitution,  impart  vitality  to  the  act  and 
make  it  due  process  of  law. 

Minor  v.  Happersett,  21  Wall.  162-178, 
22  L.  ed.  627-631;  Re  Duncan  (Duncan 
V.  McCall)  139  U.  S.  449-462,  35  L.  ed. 
219-224,  11  Sup.  Ct.  Rep.  573;  Phoenix  Ins. 
Co.  y.  The  Treasurer  (Phoenix  Ins.  Co.  y. 
Gardiner)  11  Wall.  204-210,  20  L.  ed.  112- 
114;  Hall  v.  DeCuir,  95  U.  6.  485-517, 
24  L.  ed.  547-557;  Delmas  v.  Merchants' 
Mut.  Ins.  Co.  14  WaU.  661-670,  20  L.  ed. 
757-760. 

This  tribunal  is  not  bound  by  the  state 
decisions. 

Bunn,  United  States  Courts,  1914,  pp. 
99,  100;  Fallbrook  Irrig.  Dist.  y.  Bradley, 
164  U.   a  112,   159,  41   L.  ed.   369,   389, 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cor.  Temm, 


17  6i^>.  Ct.  Rep.  56;  Chicago,  B.  k  Q.  R. 
Co.  Y.  Illinois,  200  111.  661-601,  60  L.  ed. 
696-612,  26  Sup.  Ct.  Rep.  341,  4  Ann.  Cas. 
1176;  Hughes,  Fed.  Proc.  1913,  p.  636; 
Loveland,  App.  Jurisdiction,  1911,  §  333, 
p.  714;  Taylor,  Jurisdiction  &  Procedure  of 
U.  S.  Sup.  Ct.  1906,  pp.  362,  363.      ' 

No  man  can  be  coerced  into  corporate 
relations  with  others,  and  to  assume  and 
perform  the  duties  and  burdens  of  that  re- 
lation. 

Dartmouth  College  t.  Woodward,  4 
Wheat.  618,  708,  4  L.  ed.  629,  676;  1 
Morawetz,  Priv.  Corp.  1886,  §  24;  Ellis  v. 
Marshall,  2  Mass.  269,  3  Am.  Dec.  49; 
Gardner  v.  Hamilton  Mut.  Ins.  Co.  33  N. 
Y.  421;  Marshall,  Corp.  1902,  §  195,  pp. 
496,  496;  Re  North  Milwaukee,  93  Wis.  616, 
33  L.RA.  638,  67  N.  W.  1033;  Territory 
ex  rel.  Kelly  v.  Stewart,  1  Wash.  98,  8 
L.R.A.  106,  23  Pac.  405;  Glaspell  v.  James- 
town, 11  N.  D.  86,  88  N.  W.  1023. 

It  is  elementary  that  land  cannot  be 
taken  under  the  power  of  eminent  domain, 
unless  it  is  thereafter  to  be  devoted  to  the 
use.  of  the  public  independently  of  the  will 
of  the  person  or  corporation  taking  it. 

Berrien  Springs  Water  Power  COb  v. 
Berrien  Circuit  Judge,  133  Mich.  48,  103 
Am.  St.  Rep.  438,  94  N.  W.  380:  Uyerson 
V.  Brown,  35  Mich.  333,  24  Am.  Rq>.  564; 
Board  of  Health  v.  Van  Hoesen,  87  Mich. 
533,  14  L.RA.  114.  49  N.  W.  894. 

Statutes  which  make  private  interest  the 
test  have  been  held  void  in  the  following 
cases: 

Gaylord  v.  Sanitary  Dist.  204  111.  676, 
63  L.R.A.  682,  98  Am.  St.  Rep.  235,  68 
N.  E.  622;  Citizens'  Sav.  A,  L.  Asso.  v. 
Topeka,  20  Wall.  655-670,  22  L.  ed.  465- 
463;  Parkersburg  t.  Brown,  106  U.  S.  487- 
504,  27  L.  ed.  238-246,  1  Sup.  Ct.  Rep.  442 ; 
Chicago,  B.  k  Q.  R.  Co.  v.  Chicago,  166  U. 
S.  226-263,  41  L.  ed.  979-994,  17  Sup.  Ct. 
Rep.  581;  Cole  v.  LaGrange,  113  U.  S.  1-9, 
28  L.  ed.  896-899,  6  Sup.  Ct.  Rep.  416; 
West  River  Bridge  Co.  ▼.  Dix,  6  How.  607- 
650,  12  L.  ed.  635-552;  Missouri  P.  R.  Co. 
v.  Nebraska,  164  U.  S.  403-417,  41  L.  ed. 
489-495,  17  Sup.  Ct.  Rep.  130;  Kaukauna 
Water  Power  Co.  v.  Green  Bay  k  M.  Canal 
Co.  142  U.  S.  254-282,  35  L.  ed.  1004-1014, 
12  Sup.  Ct.  Rep.  173;  Minneapolis  General 
Electric  Co.  ▼.  Minneapolis,  194  Fed.  215; 
Shasta  Power  Co.  v.  Walker,  149  Fed.  670, 
19  L.ILA.(N.S.)  725,  87  C.  C.  A.  660,  160 
Fed.  859;  Osborne  ▼.  Adams  County,  106 
U.  S.  181-183,  27  L.  ed.  129, 1  Sup.  Ct.  Rep. 
168;  The  Liberty  Bell,  23  Fed.  843;  Cleve- 
land Electric  R.  Co.  v.  Cleveland,  204  U. 
S.  116-142,  61  L.  ed.  399-411,  27  Sup.  Ct. 
Rep.  202;  Sutherland-Innes  Co.  v.  Evart, 
80  C.  C.  A.  806,  68  U.  S.  App.  336,  86 
Fed.  604;  Parks  t.  Wyandotte  County,  61 
S54 


Fed.  440;  St.  Louis  4  C.  R.  Co.  v.  Thomas, 
34  Fed.  774;  Weidenfeld  ▼.  Sugar  Run  B. 
Co.  48  Fed.  615;  Imperial  Water  Co.  ▼. 
HoUbird,  116  C.  C.  A.  526,  197  Fed.  4; 
Ottawa  V.  Carey,  108  U.  S.  110-124,  27 
L.  ed.  669-675,  2  Sup.  Ct.  Rep.  361;  Weis- 
mer  v.  Douglas,  91  N.  Y.  91,  21  Am.  Rep. 
586;  Re  Jacobs,  98  N.  Y.  99,  60  Am.  Rep. 
636;  Williams  v.  Duanesburgh,  66  N.  Y. 
129;  Inspiration  Consol.  Copper  Co.  ▼. 
New  Keystone  Copper  Co.  16  Ariz.  257, 
144  Pac.  277;  Cozard  v.  Kanawha  Hard- 
wood Co.  139  N.  C.  283,  1  L.R.A.(N.S.) 
969,  111  Am.  St.  Rep.  779,  61  S.  E.  932; 
Miller  v.  Pulaski,  109  Va.  137,  22  L.RJ^. 
(N.S.)  662,  69  S.  £.  880;  Alfred  Phosphate 
Co.  V.  Duck  River  Phosphate  Co.  120  Tenn. 
260,  22  L.R.A.(N.S.)  701,  113  S.  W.  410; 
Howard  Mills  Co.  v.  Schwartz  Lumber  k 
Coal  Co.  77  Kan.  699,  18  L.R.A.(N.S.) 
366,  95  Pac.  659;  State  ex  rel.  Tacoma 
Industrial  Co.  v.  White  River  Power  Co. 
39  Wash.  648,  2  L.R.A.(N.S.)  842,  82  Pac. 
150,  4  Ann.  Cas.  987;  Sutter  County  v. 
Nichols,  152  Cal.  688,  15  L.R.A.(N.S.)  616, 
93  Pac.  872,  14  Ann.  Cas.  900;  Pere  Mar- 
quette R.  Co.  V.  United  States  Gypsum  Co. 
154  Mich.  290,  22  LJl.A.(N.S.)  181,  117 
N.  W.  733;  Kansas  City  v.  Hyde,  106  Mo. 
498,  7  L.RA.(N.S.)  639,  113  Am.  St.  Rep. 
766,  96  S.  W.  201;  Arnspergcr  v.  Craw- 
ford, 101  Md.  247,  70  L.R.A.  497,  61  Atl. 
413;  Rockingham  County  Light  &  P.  Co. 
V.  Hobbs,  72  N.  H.  531,  66  L.R.A.  581,  58 
Atl.  46;  Clark  v.  Mitchell  County.  6!)  Kan. 
542,  66  L.ILA.  965,  77  Pac.  284;  Logan  v. 
Stogsdale,  123  Ind.  372,  8  L.R.A.  58,  24 
N.  E.  136;  Welton  v.  Dickson,  38  Neb.  767, 
22  L.RJ^.  496,  41  Am.  St.  Rep.  771,  57 
N.  W.  559;  Board  of  Health  v.  Van  Hoesen, 
87  Mich.  633,  14  L.R.A.  114,  49  N.  W. 
894;  Avery  v.  Vermont  Electric  Co.  75  Vt. 
235,  69  L.RA.  817,  98  Am.  St.  Rep.  818,  64 
Atl.  179;  Pittsburg,  W.  k  K.  R.  Co.  v. 
Benwood  Iron  Works,  31  W.  Va.  710,  2 
L.R.A.  680,  8  S.  E.  453;  St.  Louis,  I.  M. 
&  S.  R.  Co.  V.  Petty,  57  Ark.  359,  20  L.RA. 
434,  21  S.  W.  884;  Kyle  v.  Texas  k  N.  O. 
R.  Co.  3  Tex.  App.  Civ.  Cas.  (Willson) 
518,  4  LJUk.  275;  Re  Barre  Water  Co.  62 
Vt.  27,  9  L.ILA.  195,  20  Atl.  105;  Brewster 
T.  J.  k  J.  Rogers  Co.  169  N.  Y.  73,  68  L.RJk. 
496,  62  N.  E.  164;  Wisconsin  Water  Co.  v. 
Winans,  86  Wis.  26,  20  L.R.A.  662,  39  Am. 
St.  Rep.  813,  54  N.  W.  1003;  Opinion  of 
Justices,  204  Mass.  607,  27  L.RJk.(N.S.) 
483,  91  N.  E.  405;  Neitzel  ▼.  Spokane  In- 
ternational R.  Co.  65  Wash.  100,  36  L.RA. 
(N.S.)  622,  117  Pac.  864;  SaUsbury  Land 
k  Improv.  Co.  t.  Com.  216  Mass.  371,  46 
L.R.A.(N.S.)  1196,  102  N.  E.  619;  Sanborn 
V.  Van  Duyne,  90  Minn.  216,  96  N.  W.  41; 
Pennsylvania  Mut.  L.  Ins.  Co.  v.  Philadel- 
phU,  242  Pa.  47,  49   L.RJL.(N.S.)    1062, 

28»  U.  S. 


19J5. 


O'NEILL  T.  LEAMER. 


88  Atl.  904;   State  ez  rel.  Springfield  In- 
vert. Co.  T.  Superior  Ct.  78  Wash.  679,  61 
IJIA.(N.S.)   987,  139  Pac.  601;  Anderson 
r.  Smith-Powers  Logging  Co.  71  Or.  276, 
LR.A.191GB,  1080,  139  Pac.  736;  SUte  ex 
reL  Shropshire  t.  Superior  Ct.  51  Wash.  386, 
99  Pac.   3;    Northern   Light   &   P.   Co.   v. 
Stacher,  18  Cal.  App.  404,  109  Pac.  896; 
State  ex  rel.  CUrk  t.  Superior  Ct.  62  Wash. 
812,  114  Pac  444;    Bradley  v.  Pharr,  45 
La.  Ann.  426,  19  L.R.A.  647,  12  So.  618; 
SUte  ▼.  Hazelton  k  L.  R.  Co.  40  Ohio  St. 
804;  State  ex  rel.  Luedinghaus  v.  Superior 
Ot  72  Wash.  480,  130.  Pac.  752;  Jeter  t. 
YintoQ-Roanoke   Water    Co.    114   Va.    769, 
78  8.  E.  021,  Ann.  Cas.  1914C,  1029;   Re 
Splitrock  Cable  Road  Co.  128  N.  T.  408, 
28  N.  £.  606;  Re  Eureka  Basin  Warehouse 
k  Mfg.  Co.  96  N.  Y.  42;   Barton  v.  RiTcr- 
side  Water   Co.    156   Cal.   609,   23   L.RJL. 
(N.S.)    331,    101    Pac.    790;    Garrison    v. 
North    Pasadena    Land    &   Water   Co.    163 
da.  236,   124  Pac.  1009;    San   Joaquin  & 
K.  River  Canal  k  Irrig.  Co.  v.  Stevenson, 
184  CaL   221,   128   Pac.  024;    Re  Niagara 
Falls  k  W.  R.  Co.  121  N.  Y.  319,  24  N.  E. 
452;  Wisconsin  Keeley  Institute  Co.  v.  Mil- 
waukee  County,    96   Wis.    153,    36    liRJi. 
56,  60  Am.   St.   Rep.   106,   70  N.   W.   68; 
Opinion    of    Justices,    155    Mass.    698,    15 
LJtJk.  809,  30  N.  E.  1142;  Bush  v.  Orange 
County,  159  N.  Y.  212,  45  L.R.A.  566.  70 
Am.  St.  Rep.  538,  63  N.  E.  1121 ;  Baltimore 
k  E.  S.  R.  Co.  Y.  Spring,  80  Md.  610,  27 
L.R.A.  72,   31  Atl.  208;   Lucas  County  t. 
SUte   (Davies  v.  State)    75  Ohio  St  114, 
7  L.RJk.(N.S.)    1196,  78  N.  E.  955;   State 
ex  rel.  Garth  t.  Switzler,  143  Mo.  287,  40 
L.R.A.   280,   66   Am.   St.   Rep.   653,   46   S. 
W.  246;   Patty  v.  Colgan,  97  Cal.  251,  18 
LJt.A.  744,  31  Pac.  1133;  Coates  v.  Camp- 
bell, 37  Minn.  498,  36  N.  W.  366;  Kingman 
T.  Brockton,  153  Mass.  255,  11  KILA.  123, 
26  N.  E.  998;   William  Deering  k  Co.  ▼. 
Peterson,   75   Minn.   118,   77    N.   W.   668; 
Deal  T.  Mississippi   Co.  107   Mo.   464,   14 
L.RJ^.  622,  18  S.  W.  24;  Oxnard  Beet  Sugar 
Co.  ▼.  State,  73  Neb.  66,  102  N.  W.   80, 
105   N.   W.   716;    Michigan   Sugar   Co.   v. 
Auditor  General,  124  Mich.  674,  66  L.R.A. 
929,  S3  Am.  St.  Rep.  364,  83  N.  W.  626; 
Atchison,  T.  k  S.  F.  R.  Co.  v.  Campbell, 
•1  Kan.  439,  48  L.R.A.  251,   78   Am.  St. 
B«p.  328,  69  Pac.  1051;  Minnesota  Sugar  Co. 
T.  Iverson,  91  Minn.  30,  97   N.  W.  464; 
State  ex  rel.  Bowen  ▼.  Adams  County,  15 
Keb.  560,  20  N.  W.  96;  Getchell  v.  Benton, 
10  Neb.  870,  47  N.  W.  468;   Albright  v. 
SoMcx  County  Lake  k  Park  Commission, 
71  N.  J.  K  303,  69  L.ItA.  768,  108  Am. 
8t  Rep.  749,  57  Atl.  308,  2  Ann.  Cas.  49; 
Bailey  t.  New  York,  8  Hill,  531,  88  Am. 
Dee.  669;  Wyandotte  County  v.  Abbott,  52 
Kan.  148,  34  Pae.  416;  Huber  t.  Merkel, 
••  If.  ed. 


117  Wis.  365,  62  L.R.A.  589,  98  Am.  8t 
Rep.  933,  94  N.  W.  354. 

A  statute  declaring  a  corporation  essen- 
tially private  to  be  public,  and  a  purpose 
essentially  private  to  be  a  public  purpose, 
is  unconstitutional  and  void. 

Bloodgood  v.  Mohawk  k  H.  River  R.  Co. 
18  Wend.  52,  31  Am.  Dec.  313;  Amsperger 
V.  Crawford,  101  Md.  247,  70  L.R.A.  497, 
61  Atl.  413;  Pennsylvania  Mut.  L.  Ins.  Co. 
T.  Philadelphia,  242  Pa.  47,  49  L.R.A.(N.S.) 
1062,  88  Ati.  904. 

A  legislature  cannot  make  a  private  pur- 
pose public  by  declaring  it  to  be  such,  or 
by  authorising  the  exercise  of  the  power  of 
eminent  domain  for  any  use  which  the 
courts  may  determine  not  to  be  a  public 
use. 

Webster  ▼.  Susquehanna  Pole  Line  Co. 
112  Md.  416,  76  Atl.  264,  21  Ann.  Cas. 
357;  State  ex  rel.  Wausau  Street  R.  Co.  v. 
Bancroft^  148  Wis.  124,  38  L.R.A.  (N.8.) 
526,  134  N.  W.  339. 

A  statute  having  a  double  purpose,  one 
which  is  public  and  the  other  private,  is 
void  as  to  the  latter;  a  statute  granting 
a  power  which  may  be  used  for  a  public 
or  a  private  purpose  at  the  cation  of  the 
grantee  Is  void. 

Atty.  Gen.  v.  Eau  Claire,  37  Wis.  437. 

Dissenting  landowners  are  rendered  in- 
capable of  making  a  protest  or  of  uttering 
a  syllable  against  the  enterprise.  That, 
too,  renders  the  act  void. 

Ferbrache  x.  Drainage  Diet.  23  Idaho, 
85,  44  L.R.A.(N.S.)  643,  128  Pac.  663,  Ann. 
Cas.  1915C,  43. 

No  particular  formula  is  held  necessary 
to  present  a  Federal  question,  but  it  is 
sufficient-  if,  from  the  record,  it  reasonably 
appears  that  the  question  was  brought  to 
the  attention  of  the  state  court,  and  decid- 
ed adversely  to  the  plaintiff  in  error. 

Daniels  v.  Tearney,  102  U.  S.  416,  418, 
422,  26  L.  cd.  187-189;  Cornell  v.  Green, 
163  U.  S.  75,  76,  41  L.  ed.  76,  77,  16  Sup. 
Ct.  Rep.  969. 

Where  a  proceeding  is  instituted  in  which 
it  is  sought  to  exercise  the  power  to  con- 
demn property  for  both  public  and  private 
uses  indiscriminately,  that  is,  where  the 
purposes  stated  in  the  petition  are  part 
public  and  part  private, — the  right  .to  pro- 
ceed must  be  denied. 

Minnesota  Canal  k  Power  Co.  v.  Kooch- 
iching Co.  97  Minn.  429,  5  L.R.A.(N.S.) 
646,  107  N.  W.  405,  7  Ann.  Cas.  1182. 

The  legislature  cannot  authorize  the  crea- 
tion of  a  corporation  the  primary  purpose 
of  which  is  strictly  private,  and  by  calling 
it  a  public  corporation  clothe  it  with  du- 
ties that  are  in  no  sense  public,  but  con- 
fessedly private,  and  by  that  means  vio- 
late the  fundamental  law  of  the  state,  and 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  l^EKM, 


clothe  it  with  the  power  of  eminent  domain, 
and  make  that  binding  upon  the  citizen, 
and  upon  the  Federal  courts.  Wherever  an 
Attempt  is  made,  as  in  this  case,  to  do  bo, 
this  court  has  jurisdiction  to  declare  that 
the  state  tribunal  so  misconstrued,  its  own 
law  as  to  violate  the  right  of  the  individual 
citizen  under  the  14th  Amendment. 

Hall  V.  DeCuir,  95  U.  8.  485,  499,  517, 
24  L.  ed.  547,  652,  558;  Delmas  v.  Mer- 
chants' Mut.  Ins.  Go.  14  Wall.  661,  665, 
670,  20  L.  ed.  757,  759,  760;  Phoenix  Ins.  Co. 
V.  The  Treasurer  (Phoenix  Ins.  Co.  v. 
Gardiner)  11  Wall.  204,  210,  20  L.  ed.  112, 
114;  Olcott  V.  Fond  du  Lac  County,  16 
WalL  678,  688,  698,  21  L.  ed.  382,  386, 
889. 

It  is  elementary  law  (and  this  is  the 
line  of  demarcation  between  a  public  and 
private  use),  that  the  public  use  that  au- 
Hiorizes  the  exercise  of  the  right  of  em- 
inent domain  is  a  public  governmental  use; 
that  is,  a  use  for  some  governraental  pur- 
pose or  object  as  distinguished  from  a  pri- 
vate use,  or  a  use  which  would  be  bene- 
ficial to  a  number  of  persons  in  promoting 
their  private  interests,  or  in  enhancing  the 
value  of  their  estates.  A  public  use  must 
be  clearly  distinguished  from  a  popular 
use,  or  a  use  which  promotes  the  private 
interests  of  many  persons. 

Weismer  v.  Douglas,  64  N.  Y.  91,  21 
Am.  Rep.  586;  Connecticut  College  v.  Cal- 
vert, 89  Conn.  421,  48  L.R.A.(N.S.)  493, 
88  Atl.  633;  Varner  v.  Martjn,  21  W.  Va. 
534;  Bloodgood  v.  Mohawk  k  H.  River  R. 
Co.  18  Wend.  52,  31  Am.  Dec.  313;  Suther- 
land-Innes  Co.  V.  Evart,  30  C.  C.  A.  305, 
58  U.  S.  App.  335,  86  Fed.  597;  Palairet's 
Appeal,  67  Pa.  479,  5  Am.  Rep.  450;  Salis- 
bury Land  &,  Improv.  Co.  v.  Com.  215  Mass. 
371,  46  L.RJ^.(N.S.)   1196,  102  N.  E.  619. 

Mr.  R.  B.  E^ans  argued  the  cause,  and, 
with  Mr.  A.  C.  Strong,  filed  a  brief  for  de- 
fendants in  error: 

There  is  nothing  in  the  Constitution  of 
the  United  States  or  in  any  Amendment 
thereof  which  forbids  the  legislature  of  a 
state  or  territory  to  exercise  judicial  func- 
tions. 

Satterlee  ▼.  Matthewson,  2  Pet.  380,  413, 
7  L.  ed.  458,  469;  Baltimore  &  S.  R.  Co. 
V.  Nesbit,  10  How.  395,  400,  13  L.  ed.  469, 
471;  Dryer  v.  Illinois,  187  U.  S.  71,  83,  84, 
47  L.  ed.  79,  85,  23  Sup.  Ct.  Rep.  28,  15  Am. 
Crira.  Rep.  253. 

The  state  court  has  held  that  the  Pea- 
body  act  is  not  in  violation  of  the  state 
Constitution  because  of  the  provision  re- 
ferring to  the  courts  the  determination  of 
these  questions. 

Neal  V.  Vansickel,  72  Neb.  106,  100  N.  W. 
200;  Barnes  v.  Minor,  80  Neb.  191,  114  N. 
25€ 


W.  146;  Drainage  Dist.  t.  Richardson 
County,  86  Neb.  363,  125  N.  W.  796 ;  O'NeiU 
V.  Leamer,  93  Neb.  791,  142  N.  W.  112; 
Drainage  Dist.  v.  Chicago,  B.  4  Q.  B.  Co. 
96  Neb.  2,  146  N.  W.  1055. 

The  legislature  delegates  no  power.  It 
enacts  conditions  upon  the  performance  of 
which  the  corporation  shall  be  regarded  as 
organized  with  the  powers  mentioned  and 
described  in  the  act,  and  such  act  does  not 
violate  the  14th  Amendment  of  the  Con- 
stitution. 

Fallbrook  Irrig.  Dist  ▼.  Bradley,  164 
U.  S.  112,  178,  41  L.  ed.  369,  395,  17  Sup. 
Ct.  Rep.  56. 

Neither  the  United  States  Constitution' 
nor  its  Amendments  were  designed  to  in- 
terfere with  the  power  of  the  state,  some- 
times termed  its  police  power,  to  prescribe 
regulations  to  promote  the  health,  peace, 
morals,  education,  and  good  order  of  the 
people,  and  to  legislate  so  as  to  increase 
the  industries  of  the  state,  develop  its  re- 
sources, and  add  to  its  wealth  and  pros- 
perity. From  the  very  necessities  of  so- 
ciety, legislation  of  a  special  character, 
having  this  object  in  view,  must  often  be 
had  in  certain  districts,  such  as  for  the 
draining  of  marshes  and  irrigating  arid 
plains.  Regulations  for  these  purposes  may 
press  with  more  or  less  weight  upon  one 
than  upon  the  other,  but  they  are  designed 
not  to  impose  unequal  or  unnecessary  re* 
strictions  upon  anyone,  but  to  promote, 
with  as  little  individual  inconvenience  as 
possible,  the  general  good. 

Barbier  v.  Connolly,  113  U.  S.  27,  28 
L.  ed.  923,  5  Sup.  Ct.  Rep.  357. 

The  inhibitions  of  the  Constitution  of 
the  United  States  upon  the  impairment  of 
the  obligation  of  contract  or  the  deprivation 
of  property  without  due  process  or  the 
equal  protection  of  the  laws  are  not  vio- 
lated by  the  exercise  of  legislative  power  in 
securing  public  safety,  health,  and  morals. 

New  York  &  N.  E.  R.  Co.  v.  Bristol, 
151  U.  S.  556,  565,  567,  671,  38  L.  ed. 
269,  272-274,  14  Sup.  Ct.  Rep.  437. 

The  manner  in  which  a  state  may  provide 
for  the  creation  of  a  corporation  will  be 
binding  upon  the  Supreme  Court  of  the 
United  States. 

Hancock  v.  Louisville  &  N.  R.  Co.  145 
U.  S.  409,  36  L.  ed.  755,  12  Sup.  Ct  Rep. 
969;  Secombe  v.  Milwaukee  &  St.  P.  R. 
Co.  23  Wall.  108,  117,  23  L.  ed.  67,  69. 

The  creation  of  an  entity  with  power  te 
act  as  a  corporation,  although  it  is  not  to 
called,  is  sufficient. 

Secombe  v.  Milwaukee  k  St.  P.  R.  Go. 
supra. 

The  14th  Amendment  does  not  deprive  a 
state  of  the  power  to  determine  what  dor 
ties  may  be  performed  by  local  officers,  or 

28»  U.  8. 


191S. 


O'NSILLt.  TiKAMKK. 


whether  they  be.  appointed  or  elected  1^  the 
people^ 

Soliah  ▼.  Heekiii,  222  U.  8.  622,  50  L. 
el  294,  32  Sap.  Ct  Rep.  103. 

It  may  be  true  that  the  general  rule  is 
that  the  determination  of  the  territorial 
boundaries  of  a  municipal  corporation  is 
purely  a  legislative  function,  bat  there  is 
nothing  in*  the  Federal  Constitution  to  pre- 
sent the  people  of  a  state  from  giving,  if 
they  see  fit,  full  jurisdiction  over  such 
matters  to  the  courts,  and  taking  it  en- 
tirdy  away  from  the  legislature.  The 
preservation  of  legislatiTe  control  in  such 
matters  is  not  one  of  the  essential  ele- 
ments of  a  republican  form  of  government, 
which,  under  §  4  of  article  4  of  the  Con- 
ftitntion,  the  United  States  is  bound  to 
guarantee  to  every  state  in  this  Union. 
And  whatever  the  supreme  court  of  a  state 
holds  that,  under  the  true  construction  of 
its  Constitution  and  statutes,  the  courts 
of  that  state  have  jurisdiction  over  such 
matters,  the  Federal  courts  can  neither 
deny  the  correctness  of  the  construction 
nor  repudiate  its  binding  force  as  present- 
ing anything  in  conflict  with  the  Federal 
Constitution. 

Forsyth  v.  Hammond,  106  U.  S.  600, 
519,  41  L.  ed.  1096,  1100,  17  Sup.  Ct.  Rep. 
066. 

Neither  the  corporate  agency  by  which 
the  work  is  done,  the  excessive  price  which 
the  statute  allows  therefor,  nor  the  relative 
importance  of  the  work  to  the  value  of  the 
Und  assessed,  nor  the  fact  that  the  assess- 
ment is  made  before  the  work  is  done,  nor 
that  the  assessment  is  unequal  as  regards 
the  benefits  conferred,  nor  that  personal 
judgments  are  rendered  for  the  amount  as- 
sessed, are  matters  in  which  the  state  au- 
thorities are  controlled  by  the  Federal  Con- 
stitution. 

Davidson  v.  New  Orleans,  90  U.  6.  97, 
105,  106,  24  L.  ed.  016,  020. 

The  mann^  of  voting  provided  by  the 
Peabody  act  violates  no  provision  of  the 
Constitution  of  the  United  States  or  any 
Amendment  thereof. 

United  States  v.  Cruikshank,  92  U.  8. 
642,  656,  23  L.  ed.  688,  692;  Minor  T. 
Happersett,  21  WaU.  102,  178,  22  L.  ed. 
627,  631;  United  States  v.  Harris,  106  U. 
a  629,  637,  27  L.  ed.  290,  293,  1  Sup.  Ct. 
Bep.  601 ;  Pope  v.  Williams,  193  U.  S.  621, 
48  L.  ed.  817,  24  Sup.  Ct.  Rep.  673;  Boyd 
T.  Nebraska,  143  U.  S.  136,  36  L.  ed.  103, 
12  Sup.  Ct.  Rq>.  376;  Taylor  t.  Beckham, 
178  U.  S.  648,  671,  44  L.  ed.  1187,  1198, 
20  Sup.  Ct.  Rq>.  890,  1009;  Wiley  v.  Sink- 
ler,  179  U.  S.  68,  46  L.  ed.  84,  21  Sup.  Ct. 
Rep.  17;  Swafford  v.  Templeton,  186  U. 
8.  487,  491,  40  L.  ed.  1006,  1007,  22  Sup. 
Ct  Rep.  783;  Luther  t.  Bordeo,  7  How. 
•0  L.  ed. 


1,  41,  12  L.  ed.  681,  698;  SUte  ez  rd. 
Crosby  t.  Cones,  16  Neb.  444,  19  N.  W. 
082;  Alfalfa  Irrig.  Dist  V.  Collins,  40  Neb. 
411,  04  N.  W.  1080;  O'Neill  v.  Leamer,  93 
Neb.  780, 142  N.  W.  112. 

To  Justify  the  United  States  Supreme 
Court  in  taking  jurisdiction,  the  Federal 
question  must  be  specifically  set  up  or 
claimed  in  the  state  court;  the  party  must 
have  the  intent  to  invoke  for  the  protection 
of  his  rights  the  Constitution  or  some  stat- 
ute or  treaty  of  the  United  States,  and  such 
intenticm  must  be  declared  in  some  unmis- 
takable manner. 

Keokuk  &  H.  Bridge  Co.  v.  Illinois,  176 
U.  S.  020,  44  L.  ed.  299,  20  Sup.  Ct.  Rop. 
206;  F.  G.  Oxley  Stave  Co.  t.  Butler  Coun- 
ty, 100  U.  8.  048,  41  L.  ed.  1149,  17  Sup. 
Ct  Rep.  709. 

To  give  the  Supreme  Court  jurisdiction 
of  a  writ  of  error  to  a  state  court,  it  must 
appear  by  the  record  that  a  Federal  ques- 
tion was  raised. 

Inglee  v.  Coolidge,  2  Wheat.  803,  4  L.  ed. 
201;  Fisher  t.  Cockerell,  6  Pet.  248,  8 
L.  ed.  114;  Crawford  v.  Branch  Bank,  7 
How.  279,  12  L.  ed.  700;  Parmelee  v.  Law« 
rence,  11  Wall.  30,  20  L.  ed.  48;  Brooks 
V.  Missouri,  124  U.  S.  894,  31  L.  ed.  464, 
8  Sup.  a.  Rep.  443;  Powell  t.  Brunswick 
County,  160  U.  8.  483,  87  L.  ed.  1134,  14 
Sup.  Ct  Rep.  100;  Ansbro  v.  United  States, 
169  U.  S.  096,  40  L.  ed.  310,  10  Sup.  Ct 
Rep.  187;  Ci^ital  Nat  Bank  t.  First  Nat 
Bank,  172  U.  8.  426,  43  L.  ed.  602,  19 
Sup.  Ct  Rep.  202;  Phcsnix  Ins.  Co.  t.  The 
Treasurer  (Phoenix  Ins.  Co.  v.  Gardiner)  11 
WalL  204,  20  L.  ed.  112;  Crowell  t.  Ran- 
dall, 10  Pet  308,  9  L.  ed.  468;  Choteau 
T.  Marguerite  12  Pet  607,  9  L.  ed.  1174; 
Coons  V.  Gallaher,  16  Pet  18,  10  L.  ed. 
046;  Commercial  Bank  t.  Buckingham,  6 
How.  317,  12  L.  ed.  109;  Grand  Gulf  R.  ft 
Bkg.  Co.  T.  Marshall,  12  How.  106,  13 
L.  ed.  938;  Maxwell  t.  Newbold,  18  How. 
611,  16  L.  ed.  600;  Hoyt  v.  Shdden  (Hoyt 
V.  Thompson)  1  Black,  618,  17  L.  ed.  06; 
Taylor  v.  Morton,  2  Black,  481,  17  L.  ed. 
277;  The  Victory,  0  WaU.  382,  18  L.  ed. 
848;  Gibson  v.  Choteau,  8  Wall.  314,  19 
L.  ed.  817;  Cockroft  t.  Voee,  14  Wall.  6, 
20  L.  ed.  876;  Detroit  City  R.  Co.  t.  Guth- 
ard,  114  U.  S.  133,  29  L.  ed.  118,  6  Sup. 
Ct  Rep.  811;  Endowment  Benev.  Asso.  T. 
Kansas,  120  U.  S.  103,  30  L.  ed.  693,  7 
Sup.  Ct  Rq>.  499. 

The  Supreme  Court  has  no  jurisdiction  to 
review  the  judgment  of  a  state  court  on 
writ  of  error,  unless  it  affirmatively  ap- 
pears from  the  record  that  a  question  giv- 
ing the  Supreme  Court  jurisdiction  was 
made  by  the  pleadings,  and  passed  upon  by 
the  court 

Commercial  Bank  t.  Buckingham,  6  How. 
17  S57 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oor. 


817,  12  L.  ed.  169;  Gray  v.  Coan,  154  U. 
a  689,  and  38  L.  ed.  1088,  14  Sup.  Gt.  Rep. 
1168;  Chouteau  v.  Qibaon,  111  U.  S.  200, 
28  L.  ed.  400,  4  Sup.  Ct.  Rep.  340;  Say- 
ward  y.  Denny,  158  U.  S.  180,  39  L.  ed.  j 
941,   15    Sup.   Ct   Rep.   777. 

The  jurisdiction  of  this  court  to  reTiew 
the  proceedings  of  state  courts  is  limited 
to  specific  instances  of  denials  of  Federal 
rights  specially  set  up  in  and  denied  hj 
the  state  courts. 

Marshall  t.  Dye,  231  U.  S.  250,  58  L.  ed. 
206,  34  Sup.  Ct.  Rep.  92;  Waters-Pierce 
Oil  Co.  Y.  Texas,  212  U.  S.  86,  97,  53  L.  ed. 
417,  424,  29  Sup.  Ct.  Rep.  220;  Kieman  v. 
Portland,  223  U.  S.  151,  56  L.  ed.  386, 
32  Sup.  Ct.  Rep.  310. 

A  Federal  question  not  specifically  set 
up  or  claimed  in  a  state  court  cannot  be 
considered  on  writ  of  error  from  the  Su- 
preme Court  of  the  United  States  to  the 
state  court,  merely  because  another  Fed- 
eral question  not  connected  with  it  was 
raised  in  the  state  court. 

Keokuk  &  H.  Bridge  Co.  v.  Illinois,  175 
U.  S.  626,  44  L.  ed.  299,  20  Sup.  Ct.  Rep. 
205;  Dewey  v.  Des  Moines,  173  U.  S. 
193,  43  L.  ed.  665,  19  Sup.  Ct.  Rep.  379. 

The  enforcement  of  the  provision  in  ar- 
ticle IV.,  §  4,  of  the  Federal  Constitution, 
that  the  United  States  shall  guarantee  to 
every  state  in  the  Union  a  republican  form 
of  government,  depends  upon  political  and 
governmental  action  through  the  powers 
conferred  on  the  Congress,  and  not  through 
those  conferred  on  the  courts. 

Marshall  v.  Dye,  231  U.  S.  250,  58  L.  ed. 
206,  34  Sup.  Ct.  Rep.  92;  Pacific  States 
Teleph.  A  Teleg.  Co.  v.  Oregon,  223  U.  S. 
118,  56  L.  ed.  377,  32  Sup.  Ct.  Rep.  224. 

A  drainage  district  properly  organized, 
and  whose  purpose  or  use  is  public,  is  of 
the  same  character  as  school  districts,  road 
districts,  townships,  villages,  etc.,  and  is 
termed  or  known  as  a  public  corporation. 
Such  corporations  are  sometimes  termed 
quasi  municipal  corporations. 

Beach  v.  Leahy,  11  Kan.  23 ;  Fourth 
School  Dist.  V.  Wood,  13  Mass.  103 ;  Harris 
V.  School  Dist.  28  N.  H.  61;  Mittman  v. 
Farmer,  Ann.  Cas.  1916C,  29,  note. 

But,  whatever  the  designation,  the  func- 
tion is  a  public  one. 

A  corporation  is  private,  as  distinguished 
from  public,  unless  the  whole  interest  be- 
longs to  the  government,  or  the  corpora- 
tion is  created  for  the  administration  of 
political  or  municipal  power. 

Piqua  State  Bank  ▼.  Knoop,  16  How.  369, 
14  L.  ed.  977;  Vincennes  University  t.  In- 
diana, 14  How.  268,  14  L.  ed.  416. 

Every  declaration  of  the  supreme  court 
of  Nebraska  has  been  that  these  drainage 
districts  are  public  corporations. 
258 


State  ex  rel.  Harris  t.  Hanson,  80  Ntbu 
788,  115  N.  W.  294,  117  N.  W.  412;  BanM8 
V.  Minor,  80  Neb.  189,  114  N.  W.  148; 
O'Neill  V.  Leamer,  93  Neb.  789,  142  N.  W. 
112;  Whedon  v.  Wells,  95  Neb.  520,  148 
N.  W.  1007  (  Drainage  Dist  ▼.  Chicago,  B. 
4  Q.  R  Co.  96  Neb.  1,  146  N.  W.  1068; 
White  V.  PapillUn  Drainage  Dist  96  Neb. 
242,  147  N.  W.  218. 

Drainage  of  lands  is  for  a  public  pur- 
pose. 

Hagar  t.  Reclamation  Dist.  No.  188,  111 
U.  S.  701,  705,  28  L.  ed.  560,  571,  4  8^^ 
Ct  Rep.  663;  Willson  t.  BUck  Bird  Creek 
Marsh  Co.  2  Pet.  245,  252,  7  L.  ed.  418; 
414;  Wurts  v.  Hoagland,  114  U.  8.  808^ 
609,  612,  20  L.  ed.  229-231,  5  Sup.  Ct 
Rep.  1086;  Mugler  v.  Kansas,  123  U.  GL 
623,  31  L.  ed.  205,  8  Sup.  Ct.  Rep.  278; 
Fallbrook  Irrig.  Dist.  v.  Bradley,  164  U.  8. 
112,  162-175,  41  L.  ed.  369.  390-304,  17 
Sup.  Ct.  Rep.  56;  Sweet  v.  Rechel,  1» 
U.  S.  380,.  40  L.  ed.  188,  16  Sup.  Ct  Rep. 
43;  Chicago,  B.  &  Q.  R.  Co.  v.  Illinois, 
200  U.  S.  561,  585,  586,  50  L.  ed.  608^ 
606,  607,  26  Sup.  Ct.  Rep.  341,  4  Ann.  Cas. 
1175;  Laguna  Drainage  Dist.  v.  Charles 
Martin  Co.  144  Cal.  209,  77  Pac.  033; 
Heick  y.  Voight,  110  Ind.  279,  11  N.  E. 
306;  Poundstrone  v.  Baldwin,  145  Ind.  139, 
44  N.  £.  191;  Heffner  v.  Cass  A.  Morgan 
Counties,  193  111.  439,  58  L.RA.  353,  82 
N.  £.  201 ;  Cleveland,  C.  C.  k  St.  L.  R.  Co. 
V.  Polecat  Drainage  Dist.  213  111.  83,  72 
N.  E.  684;  Sisson  v.  Buena  Vista  County^ 
128  Iowa,  442,  70  L.R.A.  440,  104  N.  W. 
454;  Talbot  v.  Hudson,  16  Gray,  417;  Stat» 
ex  rel.  Utick  v.  Polk  County,  87  Minn.  326, 
60  L.R.A.  161,  92  N.  W.  216;  Mound  Citj 
Land  &  Stock  Co.  v.  Miller,  170  Mo.  240^ 
60  L.RA.  190,  94  Am.  St  Rep.  727,  70  8. 
W.  721;  Norfieet  v.  Cromwell,  70  N.  C.  684, 
16  Am.  Rep.  787;  Porter  v.  Armstrong,  139^ 
N.  C.  179,  51  S.  £.  926;  Lewis  County  t. 
Gordon,  20  Wash.  80,  54  Pac.  779. 

Courts  will  give  great  weight  to  th# 
legislative  declaration  that  a  purpose  is 
public,  implied  from  giving  the  ri^ht  of 
eminent  domain  for  such  purpose,  and  audi 
declaration,  in  the  absence  of  proof  to  th# 
contrary,  is  sufficient 

Long  Sault  Development  Go.  v.  Kennedy,. 
158  App.  Div.  398,  143  N.  Y.  Supp.  454» 

The  fact  that  private  individuals  will  be* 
benefited  does  not  prevent  the  use  from 
being  a  public  one  if  the  many  are  benefited,, 
or  the  public  are  interested. 

Jeter  v.  Vinton-Roanoke  Water  Co.  114 
Va.  769,  76  S.  W.  921,  Ann.  Cas.  1914C. 
1029;  O'Neill  v.  Leamer,  93  Neb.  786,  142 
N.  W.  112. 

The  words  "due  process  of  law"  are  in- 
tended to  convey  the  same  meaning  as  th» 

838  U.  ff* 


1915. 


O'NEILL  T.  LKAMKK. 


wDidi  "bj  the  Uw  of  the  land**  in  Magna 
Qiirta. 

Den  ex  dem.  Murraj  v.  Hoboken  Land 
4  ImproT.  Co.  18  How.  272,  16  L.  ed.  372. 

The  phrase  'Mne  process  of  law"  refers 
to  the  state's  own  process. 

He  Mahon,  34  Fed.  526. 

The  term  "due  process  of  law,"  when  ap- 
plied to  judicial  proceedings,  means  a 
eoorse  of  legal  proceedings  according  to 
those  rules  and  principles  which  have  been 
crtsblished  bj  our  iurispmdence  for  the 
protection  and  enforcement  of  private 
rights.  To  give  such  proceedings  any  va- 
fiditj,  there  must  be  a  competent  tribunal 
to  pass  on  their  subject-matter;  and,  if 
that  involves  merely  a  determination  of  the 
personal  liability  of  defendant,  he  must 
be  brought  within  its  jurisdiction  by  service 
of  process  within  the  state,  or  by  his  volun- 
tary appearance. 

Pennoyer  v.  Neff,  96  U.  S.  714,  24  L.  ed. 
565;  Davidson  v.  New  Orleans,  96  U.  8. 
97,  105,  106,  24   L.  ed.  616,  620. 

Due  process  of  law  is  its  regular  admin- 
iitration,  through  the  courts  of  justice,  by 
i  timely  and  regular  course  of  proceedings 
to  judgment  and  execution.  As  a  rule  it 
mcludes  parties,  regular  pleadings,  and  a 
trial,  according  to  the  settled  course  of 
proeeedings. 

Den  ex  dem.  Murray  v.  Hoboken  Land  & 
Improv.   Co.  18  How.  273,   15   L.   ed.  372. 

It  does  not  require  a  trial  by  jury. 

United  States  v.  Ferreira,  13  How.  40, 
14  L.  ed.  42. 

Jurisdiction  of  the  subject-matter  is  pow- 
er to  deal  with  general  abstract  questions 
in  empowering  the  court  to  determine  each 
issue  within  the  scope  of  its  authority  ac- 
eording  to  its  own  view  of  the  law  and  the 
eridence.  Whether  its  decision  is  right  or 
wrong,  each  judgment  or  decision  so  ren- 
dered is  final  and  conclusive  upon  the  par- 
ties to  it  unless  reviewed  by  writ  of  error 
or  appeal,  or  impeached  for  fraud. 

Foltz  V.  St.  Louis  &  S.  F.  R.  Co.  8  C.  C. 
A.  635,  19  U.  8.  App.  576,  60  Fed.  318; 
Insley  v.  United  States,  150  U.  8.  512,  37 
L.  ed.  1163,  14  Sup.  Ct.  Rep.  158;  Des 
Moines  Nav.  ft  R.  Co.  v.  Iowa  Homestead  Co. 
123  U.  8.  552,  31  L.  ed.  202,  8  Sup.  Ct. 
Rep.  217;  Re  Sawyer,  124  U.  8.  200,  81 
U  ed.  402,  8  Sup.  Ct.  Rep.  482. 

The  acts  of  a  municipal  corporation  can- 
itot  be  said  to  be  wanting  in  the  due  process 
of  law  guaranteed  by  the  Constitution  of 
the  United  States  or  the  14th  Amendment, 
if  such*  acts,  when  done  or  ratified  by  the 
>tate,  would  not  be  inconsistent  with  that 
Amendment. 

Owensboro    Waterworks    Co.    v.    Owens- 
boro,  200  U.  6.  38,  50  L.  ed.  361,  26  Sup. 
Ct  Rep.  249. 
•0  L.  ed. 


Law  in  its  regular  course  of  administra- 
tion through  a  court  of  justice  is  due 
process,  and  when  secured  by  the  law  of 
the  state,  the  constitutional  requirement 
is  satisfied. 

Leeper  v.  Texas,  139  U.  8.  462,  35  L.  ed. 
225,  11  Sup.  Ct.  Rep.  677. 

The  state  may  provide  that  the  deoisioB 
of  the  appraiser  in  a  condemnation  pro- 
ceeding shall  be  final,  and  it  is  due  process 
of  law. 

Long  Island  Water  Supply  Co.  t.  Brook- 
lyn, 166  U.  8.  685,  41  L.  ed.  1165,  17  Sup. 
Ct  Rep.  718;  Shoemaker  t.  United  States, 
147  U.  8.  282,  305,  37  L.  ed.  170,  188,  18 
Sup.  Ct.  Rep.  861;  Louisville  ft  N.  R.  Oo. 
T.  Kentucky,  188  U.  8.  503,  515,  46  L.  ed. 
298,  305,  22  Sup.  Ct.  Rep.  95. 

In  the  exercise  of  the  right  of  eminent 
domain,  inquiry  as  to  the  amount  of  com- 
pensation, provided  for  in  some  appropriate 
way  before  some  properly  constituted  tri- 
bunal, constitutes  due  process  of  law. 

A.  Backus-  Jr.  A  Sons  v.  Fort  Street 
Union  Depot  Co.  169  U.  8.  557,  568,  571,  42 
L.  ed.  853,  858,  859,  18  Sup.  Ct.  Rep.  445. 

It  is  firmly  established  that  when  parties 
have  been  fully  heard  in  regular  course  of 
judicial  proceedings,  an  erroneous  decision 
of  the  state  court  does  not  deprive  the  un- 
successful party  of  its  property  without 
due  process  of  law,  within  the  14th  Amend- 
ment to  the  Constitution  of  the  United 
States. 

Bonner  v.  Gorman,  213  U.  8.  91,  53  L. 
ed.  711,  29  Sup.  Ct.  Rep.  483. 

In  summing  up  the  essentials  of  due 
process  of  law  in  condemnation  cases,  this 
court  has  said  that  all  that  is  essential  is 
that  in  some  approved  way,  before  some 
properly  constituted  tribunal,  inquiry  shall 
be  made  as  to  the  amount  of  con^pensation, 
and  that  when  this  has  been  provided  there 
is  that  due  process  of  law  which  is  required 
by  the  Federal  Constitution. 

Appleby  v.  Buffalo,  221  U.  8.  532,  5&  L. 
ed.  842,  31  Sup.  Ct.  Rep.  699. 

Where  there  is  no  constitutional  provision 
prescribing  the  tribunal  before  which  con- 
demnation proceedings  shall  be  brought,  the 
legislative  power  has  authority  to  designate 
it. 

Spring  Valley  Waterworks  v.  Schottler, 
110  U.  S.  347,  382,  28  L.  ed.  173,  185,  4 
Sup.  Ct.  Rep.  48;  United  States  v.  Jones, 
109  U.  S.  513,  519,  27  L.  ed.  1015,  1017,  3 
Sup.  Ct.  Rep.  346. 

The  statute  providing  for  the  condemna- 
tion of  a  railway  right  of  way  has  been 
before  the  supreme  court  of  Nebraska  for 
construction,  and  that  court  has  held  that 
all  persons  interested  in  the  land  to  be  af- 
fected are  ownors  and  necessary  parties. 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct. 


State  T.  HlBaoiiri  P.  R.  So.  75  Neb.  9, 
106  N.  W.  988. 

The  same  court  has  held  that  notice  to 
the  owners  is  necessary. 

Trester  v.  Missouri  P.  R.  Co.  38  Neb. 
186,  49  N.  W.  1110. 

The  question  of  Whether  or  not  sufficient 
notice  has  been  given  is  one  for  the  de- 
termination of  the  state  court,  when  the 
action  is  brought  under  the  state  statute. 

Baltimore  Traction  Co.  v.  Baltimore  Belt 
R.  Co.  151  U.  S.  187,  88  L.  ed.  102,  14 
Sup.  Ct.  Rep.  294. 

In  the  proceeding  to  condenm,  the  land- 
owner may  be  heard  before  the  county 
judge,  not  as  to  value,  but  as  to  other  mat- 
ters he  may  desire  to  litigate,  material  to 
the  condemnation. 

Freemont,  E.  &  M.  Valley  R.  Co.  v.  Mat- 
theis,  89  Neb.  101,  57  N.  W.  987. 

Being  a  constitutional  exercise  of  legis- 
lative power,  and  providing  a  suitable 
remedy  by  trial  in  the  regular  course  of 
justice,  to  recover  compensation  for  injury 
to  the  land  of  plaintiffs,  it  has  not  deprived 
them  of  their  property  without  due  process 
of  law,  in  violation  of  the  14th  Amend- 
ment to  the  Constitution  of  the  United 
States. 

Head  v.  Amoskeag  Mfg.  Co.  118  U.  S. 
9,  26,  28  L.  ed.  889,  895,  5  Sup.  Ct.  Rep. 
441;  Walker  v.  Sauvinet,  92  U.  8.  90,  23 
L.  ed.  678;  Davidson  v.  New  Orleans,  96 
U.  S.  97,  24  L.  ed.  616;  Hurtado  v.  Cali- 
fornia, 110  U.  S.  516,  28  L.  ed.  232,  4  Sup. 
Ct.  Rep.  Ill,  292;  Hagar  v.  Reclamation 
IMst.  Ill  U.  S.  701,  28  L.  ad.  569,  4  Sup. 
Ct.  Rep.  663. 

The  decision  by  the  state  court  that  a 
particular  formality  is  or  is  not  essential 
under  a  state  statute  presents  no  Federal 
question,  if  the  statute  as  thus  construed 
is  sufficient  to  provide  due  process  of  law. 

Castillo  V.  McConnico,  168  U.  S.  674, 
42  L.  ed.  622,  18  Sup.  Ct.  Rep.  229. 

There  is  no  limitation  on  the  power  of 
the  legislature  in  this  respect  if  the  pur- 
pose be  a  public  one,  and  just  compensa- 
tion be  paid  or  tendered  to  the  owner  for 
the  property  taken. 

Secombe  v.  Milwaukee  k  St.  P.  R.  Co.  23 
Wall.  108,  23  L.  ed.  67;  A.  Backus  Jr.  & 
Sons  V.  Fort  Street  Union  Depot  Co.  169 
U.  S.  667,  570,  42  L.  ed.  853,  859,  8  Sup. 
Ct.  Rep.  445;  Chicago,  B.  A  Q.  R.  Co.  v. 
Chicago,  166  U.  S.  226,  236,  41  L.  ed.  979, 
984,  17  Sup.  Ct.  Rep.  581. 

Due  process  of  law  does  not  require  notice 
and  a  hearing  on  the  appointment  of  the 
tribunal  to  assess  the  benefits  and  damages 
resulting  from  a  drain. 

Bemis  v.  Guirl  Drainage  Co.  182  Ind. 
36,  105  N.  E.  496;  Taylor  v.  Drainage  Diet. 


—  Iowa,  — ,  L.RJL.1916B,  1193,  148  N.  W. 
1040. 

Want  of  notice  to  the  landowner  of  the 
hearing  on  the  necessity  of  taking  the  land 
does  not  constitute  deprivation  of  due 
process. 

Water  Comrs.  v.  Johnson,  86  Conn.  161, 
41  L.R.A.(N.S.)  1024,  84  AtL  727;  Water 
Comrs.  V.  Palmar,  —  Conn.  — ,  84  Atl. 
736. 

The  construction  by  a  state  court  of  the 
law  of  the  state  as  authorizing  the  court  to 
try  and  determine,  in  'a  condemnation  pro- 
ceeding, an  adverse  claim  of  the  plaintiff 
therein,  to  an  interest  in  the  property 
sought  to  be  condemned,  is  conclusive  on 
the  Supreme  Court  of  the  United  States, 
on  a  writ  of  error  to  that  court. 

Hooker  v.  Los  Angeles,  188  U.  S.  314, 
47  L.  ed.  488,  63  LJI.A.  471,  23  Sup.  Ct. 
Rep.  395. 

The  assignment  that  the  act  of  the  legis* 
lature  of  Nebraska  under  which  this  drain- 
age district  was  organized  is  in  violation 
of  the  Constitution  of  Nebraska,  when  the 
supreme  court  of  that  state  has  held  it 
constitutional,  presents  no  Federal  question. 

Layton  v.  Missouri,  187  U.  S.  356,  47  L. 
ed.  214,  23  Sup.  Ct.  Rep.  137 ;  Medberry  v. 
Ohio,  24  How.  413,  16  L.  ed.  739;  Porter 
V.  Foley,  24  How.  415,  16  L.  ed.  740; 
Congdon  v.  Goodman,  2  Black,  674,  17 
L.  ed.  257;  Withers  v.  Buckley,  20  How. 
84,  15  L.  ed.  816;  Jackson  ex  dem.  Hart 
V.  Lamphire,  3  Pet.  280,  7  L.  ed.  679;  Bar- 
bier  V.  Connolly,  113  U.  S.  27,  28  L.  ed. 
923,  5  Sup.  Ct.  Rep.  367;  Leeper  v.  Texas, 
139  U.  S.  462,  35  L.  ed.  225,  11  Sup.  Ct. 
Rep.  577 ;  Fallbrook  Irrig.  Dist.  v.  Bradley, 
164  U.  S.  112,  41  L.  ed.  369,  17  Sup.  Ci. 
Rep.  56;  Satterlee  v.  Matthewson,  2  Pet. 
380,   7   L.  ed.   458. 

And  such  decision,  when  made  by  the 
state  court,  is  conclusive  on  the  Federal 
courts. 

Rasmussen  v.  Idaho,  181  U.  S.  198,  45 
L.  ed.  820,  21  Sup.  Ct.  Rep.  594;  Mobile 
Transp.  Co.  v.  Mobile,  187  U.  S.  479,  47 
L.  ed.  266,  23  Sup.  Ct.  Rep.  170;  Car- 
stairs  V.  Cochran,  193  U.  S.  10,  48  L.  ed. 
596,  24  Sup.  Ct.  Rep.  318;  Brown  v.  New 
Jersey,  175  U.  S.  172,  44  L.  ed.  119,  20 
Sup.  Ct.  Rep.  77;  Merchants'  &  N.  Nat.  Bank 
V.  Pennsylvania,  167  U.  S.  461,  42  L.  ed. 
236,  17  Sup.  Ct.  Rep.  829;  Adams  Exp. 
Co.  V.  Ohio  State  Auditor,  165  U.  S.  194, 
41  L.  ed.  683,  17  Sup.  Ct.  Rep.  305;  Mc- 
Cain V.  Des  Moines,  174  U.  S.  168,  43  L. 
ed.  936,  19  Sup.  Ct.  Rep.  644;  Long  Is- 
land Water  Supply  Co.  v.  Brooklyn,  166  U. 
S.  685,  41  L.  ed.  1165,  17  Sup.  Ct.  Rep. 
718;  New  York  &  N.  E.  R.  Co.  v.  Bristol, 
151  U.  S.  556,  38  L.  ed.  260,  14  Sup.  Ct. 

2311  U.  S. 


1915. 


O'NEILL  Y.  LKAMER, 


Rep.  437;  Hallinger  ▼.  Davis,  146  U.  S. 
314»  3d  L.  ed.  986,  13  Sup.  Ct.  Rep.  105. 

Ordinarily  the  prorisioBa  of  the  14th 
Constitutional  Amendment,  relating  to  due 
process  of  law,  do  not  apply  where  the  leg- 
islature of  a  state  has  performed  its  du- 
ties by  providing  for  proceedings  which 
answer  the  constitutional  requirement,  and 
where  the  fault  is  either  with  the  ooiurt  or 
officers. 

Storti  V.  Massachusetts,  183  U.  &  138, 
46  L.  ed.  120,  22  Sup.  Ot  R^.  72. 

A  decision  of  the  highest  court  of  the 
state,  made  on  the  settled  pre-existing  rules 
of  general  jurisprudence  of  the  state^  can- 
not be  brought  to  the  Supreme  Court  of 
the  United  States. 

Bank  of  West  Tennessee  t.  Citisens'  Bank, 
14  Wall.  9,  20  L.  ed.  614. 

A  decision  of  a  'state  court  that  the  for- 
malities required  1^  the  tax  laws  were  ful- 
ly observed  does  not  present  a  Federal  ques- 
tion, where  the  contention  is  not  that  the 
statutes  are  unconstitutional,  but  that  the 
manner  of  their  observance  was  a  denial  of 
due  process  of  law. 

French  v.  Taylor,  109  U.  8.  274,  60  L. 
ed.  189,  26  Sup.  Ct  Rep.  76. 

The  Supreme  Court  of  the  United  States 
has  no  jurisdiction  of  a  case  brought  up 
from  the  highest  court  of  a  state,  on  the 
record  of  which  it  appears  that  the  de- 
cision of  the  state  court  turned  upon  the 
construction,  and  not  upon  the  validity, 
of  the  statute  of  a  state. 

Grand  Gulf  R.  ft  Bkg.  Co.  t.  Marshall, 
12  How.  165,  13  L.  ed.  938. 

State  courts  have  sole  jurisdiction,  in 
cases  which  turn  entirely  on  the  validity 
or  interpretation  of  state  laws,  and  this 
court  has  no  appellate  power  over  their 
judgments. 

Congdon  v.  Goodman,  2  Black,  574,  17 
L.  ed.  257. 

Decisions  of  a  state  court  of  last  resort 
construing  a  state  statute  will  be  followed 
by  United  States  courts. 

Tullis  V.  Lake  Erie  k  W.  R.  Co.  175  U. 
8.  348,  44  L.  ed.  192,  20  Sup.  Ct.  Rep. 
136;  Missouri,  K.  ft  T.  R.  Co.  v.  McCann, 
174  U.  S.  580,  43  L.  ed.  1093,  19  Sup.  Ct 
Rep.  755;  Yazoo  ft  M.  Valley  R.  Co.  v. 
Adams,  181  U.  S.  589,  45  L.  ed.  1011,  21 
Sup.  Ct.  Rep.  720. 

The  construction  of  a  statute  by  the  high- 
est court  of  the  state  forms  a  rule  of  de- 
cision for  the  Federal  court. 

M'Keen  v.  Delancy,  5  Cranch,  22,  3  L. 
ed.  25;  Polk  v.  Wendal,  9  Cranch,  87,  3 
L.  ed.  665;  Thatcher  v.  Powell,  6  Wheat 
119,  5  L.  ed.  221;  ElmeUdorf  v.  Taylor,  10 
Wheat  152,  6  L.  ed.  289;  M'Cormick  v. 
Sullivan,  10  Wheat  192,  6  L.  ed.  300;  Bell 
V.  Morrison,  1  Pet  351»  7  L.  ed.  174; 
•0  L.  ed. 


IVWolf  V.  Rabaud,  1  Pet.  476,  7  L.  ed. 
227;  Davis  v.  Mason,  1  Pet.  503,  7  L.  ed. 
239;  Waring  v.  Jackson,  1  Pet  570,  7  L. 
ed.  266;  FuUerton  v.  Bank  of  United  States, 

1  Pet.  604,  7  L.  ed.  280;  Ross  v.  Doe,  1 
Pet.  655,  7  L.  ed.  302;  Gardner  v.  Col- 
lins, 2  Pet  58,  7  L.  ed.  347 ;  Beach  v.  Viles, 

2  Pet  675,  7  L.  ed.  559;  M'Cluny  v.  Silli- 
man,  3  Pet  270,  7  L.  ed.  676;  United  States 
V.  Morrison,  4  Pet  124,  7  L.  ed.  804; 
Henderson  v.  Griffin,  5  Pet.  151,  8  L.  ed. 
79;  Hinde  v.  Vattier,  5  Pet  398,  8  L. 
ed.  168;  Ross  v.  M'Limg,  6  Pet  283,  8  L.  ed. 
400;  Green  v.  Keal,  6  Pet.  291,  8  L.  ed. 
402;  Brashear  t.  West,  7  Pet  608,  8  L. 
ed.  801 ;  Harpending  v.  Reformed  Protestant 
Dutch  Church,  16  Pet.  455,  10  L.  ed.  1029; 
Kinney  v.  Clark,  2  How.  76,  11  L.  ed. 
185;  Phalen  v.  Virginia,  8  How.  163,  12 
L.  ed.  1030;  Sumner  v.  Hicks,  2  Black, 
532,  17  L.  ed.  355;  Leffiingwell  v.  Warren, 
2  Black,  599,  17  L.  ed.  261;  Richmond  v. 
Smith,  15  Wall.  420,  21  L.  ed.  200;  Carroll 
County  V.  United  States,  18  Wall.  71,  21 
L.  ed.  771;  Aicardi  v.  Alabama,  19  Wall. 
635,  22  L.  ed.  215;  State  R.  Tax  Cases, 
92  U.  S.  575,  23  L.  ed.  663;  Meister  v. 
Moore,  96  U.  S.  76,  24  L.  ed.  826;  Davie 
V.  Briggs,  97  U.  S.  628,  24  L.  ed.  1086; 
Lceper  v.  Texas,  139  U.  S.  462,  35  L.  ed. 
225,  11  Sup.  Ct.  Rep.  577;  New  York,  L. 
£.  ft  W.  R.  Co.  V.  Pennsylvania,  158  U. 
S.  431,  39  L.  ed.  1043,  15  Sup.  Ct.  Rep. 
896. 

The  established  rule  is  that  the  Federal 
courts  are  to  administer  the  laws  of  the 
states  in  cases  where  they  apply;  and  the 
uniform  practice  has  been  to  consider  a 
judicial  interpretation  placed  upon  a  stat- 
ute the  same  as  if  incorporated  within  the 
language  of  the  statute  itself. 

Olcott  V.  Fond  du  Lac  County,  2  Biss. 
368,  Fed.  Cas.  No.  10,479. 

The  state  has  full  control  over  procedure 
in  its  courts,  subject  only  to  the  qualifica- 
tion that  such  procedure  must  not  work  a 
denial  of  fundamental  rights,  or  conflict 
with  specific  and  applicable  provisions  of 
the  Federal  Constitution. 

Maxwell  v.  Dow,  176  U.  S.  581,  585,  607, 
44  L.  ed.  597,  598,  606,  20  Sup.  Ct.  Rep. 
448,  494. 

When  the  question  is  whether,  under  the 
Constitution  and  laws  of  a  state,  a  company 
is  legally  organized  as  a  corporation,  the 
decision  of  the  supreme  court  of  the  states 
settling  the  question  in  the  affirmative, 
will  be  accepted  as  conclusive. 

Sccombe  v.  Milwaukee  ft  St.  P.  R.  Co. 
23  Wall.  108,  23  L.  ed.  67;  Mooney  v. 
Humphrey,  12  Fed.  612;  Fitzgerald  v.  Mis- 
souri P.  R.  Co.  45  Fed.  812. 

The  Supreme  Court  has  no  jurisdiction  to 
re-examine  the  judgment  of  a  state  court 

261 


SUPREME  CX)UBT  OF  THE  UNITED  STATES.  Oor.  Tknc, 

unleu  the  record  shows  affirmatively,  or  by  l  States,  unless  the  record  shows,  either  1^ 
fair  implication,  that  a  Federal  question '  words  or  by  clear  and   necessary   intend- 

necessary  for  the  determination  of  the  cause  ment  therefrom,  that  the  right  was  spe- 

is  involved.  cifically  claimed,  or  a  definite  issue  as  to  the 

Williams  v.  Norris,  12  Wheat.  117,  6  L.  possession  of  the  right  is  distinctly  de- 
ed. 671;  Willson  v.  Black  Bird  Creek  Marsh  ducible  from  the  record,  without  any  ad- 
Co.  2  Pet.  245,  7  L.  ed.  412;  Satterlee  v.  verse  decision  of  which  the  judgment  oould 
Matthewson,  2  Pet.  380,  7  L.  ed.  458;  not  have  been  rendered. 
Mills  V.  Brown,  16  Pet.  525,  10  L.  ed.  Capital  Nat.  Bank  v.  First  Nat.  Bank, 
1055;  Commercial  Bank  v.  Buckingham,  5  172  U.  S.  425,  43  L.  ed.  502,  10  Sup.  Ct. 
How.  317,  12  L.  ed.  160;  Furman  v.  Nichol,  Rep.  202. 

8  Wall.  44,  10  L.  ed.  370 ;  Brown  v.  Atwell,  In  determining  whether  the  United  States 

02  U.  S.  327,  23  L.  ed.  511;  Citizens'  Bank  Supreme  Court  has  jurisdiction  under  |  25 

V.  Board  of  Liquidation,  08  U.  S.  140,  25  of  the  Judiciary  act,  nothing  outside  the 

L.  ed.  114;   Boughton  v.  American  Exch.  record  certified  to  the  court  can  be  taken 

Nat.  Bank,  104  U.  S.  427,  26  L.  ed.  765.  into  consideration. 

This   court   has    no   jurisdiction    to    re-  Armstrong  v.  Athens  County,  16  Pet.  281, 

examine   the    judgment    of   a    state   court  10  L.  ed.  065;  Walker  v.  Villavaso,  6  Wall, 

where  a  Federal  question  was  not  in  fact  124,  18  L.  ed.  853. 

passed  upon,  and  where  a  decision  of  it  was  The  petition  for  the  allowance  of  a  writ 

rendered  unnecessary  in  the  view  which  the  of  error  forms  no  part  of  the  record  of  the 

court  below  took  of  the  case.  court  below;  and  this  court  has  no  juris- 

Hurley  v.  Street,  14  Wall.  85,  20  L.  ed.  diction    to   determine   a    Federal    question 

786;    McManus    v.    O'SuUivan,    01    U.    8.  presented   in    such    petition,    but   not   dis- 

678,  23  L.  ed.  300;  Boiling  v.  Lersner,  01  closed  by  the  record   sent  here  from  the 

U.  S.  504,  23  L.  ed.  366.  gtate  court. 

In  order  to  bring  a  case  from  a  state  Warfield  v.  ChafTe,  01  U.  S.  600,  23  L.  ed. 

court  to  this  court  for  review,  it  is  neces-  ^g. 

sary  that  the  record  should  show  that  the  '              i     ^  x         i.  xl  x  xl     •  j         ^ 

point  giving  jurisdiction  to  this  court  was  ^^  f^^*^  ■**]*"f *  ^''''i  *x '  J^^^!?* 

raised  and  decided  in  the  court  below.  "^^^^  *^«  ^«d«'»l   Constitution,   or  the 

Crowell  V.  Randell,  10  Pet.  368,  0  L.  ed.  '»«^*«  <>'  ^^  P"^/  thereunder,  or  that  it  is 

458;   Choteau  v.  Marguerite,  12  Pet.  507,  without  due  process  of  law,  will  not  raise 

0  Lk.  ed.  1174;  Coons  v.  Gallaher,  15  Pet.  a  Federal  question,  even  though  the  judg- 

18,    10   L.   ed.   645;    Commercial    Bank   v.  ment   be   a    final    one,    reviewable    by    the 

Buckingham,  6  How.  317,  12  L.  ed.  160;  Federal  Supreme  Court  on  writ  of  error. 

Grand  Gulf  R.  &  Bkg.  Co.  v.  Marshall,  12  under  U.   8.   Rev.   Stat.   §   700,  especially 

How.  165,  13  L.  ed.  038;  Maxwell  v.  New-  where  such  sUtement  appears  only  in  the 

bold,  18  How.  611,  15  L.  ed.  605;  Hoyt  v.  specifications  of  error. 

Shdden  (Hoyt  v.. Thompson)  1  BUck,  518,  Clarke  v.  McDade,  165  U.  S.  168,  41  L. 

^!,h.^;  ^^1  It^J^'^nZ'  ^?!^'''  l^tlf"^'  ed-  e73,  17  Sup.  Ct.  Rep.  284. 

481,  17  L.  ed.  277;  The  Victory,  6  Wall  y^^^^  ^^^  allegation  that  the  suit  arises 

^\^l.^'  tt'r^^^J  ?i^n  ""L^r^""'  ®  under  the  Federal  Constitution  is  palpably 

^'Lli    k   Ini  1:^    «7k  ^trl  rit?R  unfounded,  it  does  not  constitute  even  color 

14  WalL  5,  20  L.  ed.  875;  Detroit  City  R.  .      ^,      .     .  j-  x-       «      xi.     tt  •*  j   o*  x^ 

Co.  V.  Quthard,  114  U.  S.  133,  20  L.  ed.  ^o'  ^^  jurisdiction  for  the  United  SUtea 

118,    6    Sup.    Ct.    Rep.    811;    Endowment  circuit  court. 

Benev.  Asso.  v.  Kansas,  120  U.  S.  103,  30  McClain  v.  Des  Moines,  174  U.  S.  168, 181, 

L.  ed.  603,  7  Sup.  Ct.  Rep.  400.  43  L.  ed.  036,  041,  10  Sup.  Ct.  Rep.  644; 

The  facts  giving  the  Supreme  Court  juris-  Gring  ▼.  Ives,  222  U.  S.  365,  66  L.  ed.  236, 

diction  to  review  the  decision  of  a  state  32  Sup.  Ct.  Rep.  167;  Farrell  v.  O'Brien 

court  must  appear  on  the  record,  or  be  nee-  (O'Callaghan  t.  O'Brien)  100  U.  S.  80,  I'OO, 

essarily    implied   therefrom.  50  l.  ed.  101,  107,  96  Sup.  Ct.  Rep.  727; 

Miller  v.  Nicholls,  4  Wheat.  311,  4  L.  ed.  payerweather  v.  Ritch,  105  U.  S.  276,  299, 

678;  Satterlee  v.  Matthewson,  2  Pet.  380,  ^^  l.  ed.  103,  210,  25  Sup.  Ct.  Rep.  68; 

IV  Ti'/^^n'  ?'''!^  ^°^k^^^'  l^^^^'  ^l  Goodrich  T.   Ferris,  214  U.  S.  71.  79,  68 

^\.  ^^L  \^a  V   !^-  «^f  •  ^k'            Jl'  L.  ed.  014,  018,  20  Sup.  Ct.  Rep.  680. 

Wall.  382,  18  L.  ed.  848;  Gibson  v.  Chou-  JT                  x-       «     fi.-*  ♦!»«  !...*^.«  ;. 

teau,  8  WaU.  314,  10  L.  ed.  317;  Murray  The  presumption  is  that  the  purpose  it 

V.  Charleston,  06  U.  S.  432,  24  L.  ed.  760.  •  public  one.                     ,  ^    „^n    ,,  vr   *. 

The  United  States  Supreme  Court  will  not  Heick  v.  Voight,  110  Ind.  270,  11  N.  S. 

review  the  judgment  of  a  ststp  court  on  306;  Hartwell  v.  Armstrong,  10  Barb.  166; 

the  ground  of  a  denial  by  the  latter  court  McDaniel  v.  Columbus,  01  Ga.  462,  17  S.  S. 

of  a  right  under  a  statute  of  the  United  lOll. 

2%2  ^^*  ^*  ^ 


1915. 


O'NEILL  T.  LEAMER. 


245-248 


Mr.  Justice  nughtm  dellTered  the  opin- 
{on  of  the  court : 

Under  the  laws  of  Nebraska  (Laws  1905, 
ehap.  161;  Laws  1909,  chap.  147;  CobbeT's 
Addo.  Stat.  §§  5561-5597;  ReT.  SUt.  1913, 
If  1797  ct  seq.)   the  district  court  of  the 
tttte  made  an  order  organizing  "Drainage 
District  No.  2   [246]  of  DakoU  County.'' 
The  lands  embraced  within  the  district  lay 
to  the  southeast  of  the  village  of  Jackson, 
and  consisted  of  about  7,000  acres  of  swamp 
Isnds  upon  which  were  discharged  the  wat- 
srs  of  Elk  creek,  coming  from  the  northwest. 
It  was  recited  in  the  order  that  the  drainage 
of  these  lands  would  be  "a  public,  utility," 
and  would  "be  conducive  to  the  public  con- 
finienoe,  health,  and  welfare."  Plans  were 
adopted  which  involved  the  construction  of 
a  ditch  across  lands  of  the  plaintiffs  in  er- 
ror for  the  purpose  of  carrying  the  waters 
of  the  creek  to  Jackson  lake.     These  were 
Isnds  which  did  not  receive  the  flood  waters 
of  the  creek,  but  were  situated  northeast  of 
Jackson  and  outside  the  drainage  distiict. 
The  defendants  in  error,  who  had  been  cho- 
sen as  supervisors  of  the  drainage  district, 
instituted  condemnation  proceedings  in  the 
county  court  for  the  purpose  of  making  the 
necessary  appropriation,  and  awards  were 
made. 

'Ihis  action  was  then  begun  by  the  plain- 
tiffs in  error    (and  another)    in  the  state 
€ourt  to  enjoin  the  construction  of  the  ditch. 
The  plaintiffs  assailed  the  Nebraska  statute 
as  repugnant  to  the  state  Constitution,  and 
further  averred  that  to  permit  the  defend- 
ants to  construct  the  ditch  would  deprive 
the  plaintiffs  of  their  property  without  due 
process  of  law  and  deny  to  them  the  equal 
protection  of  the  laws,  in  violation  of  the 
14th    Amendment.      It    was    alleged    that 
the  enterprise  was  "wholly  private  and  in  the 
exeltisive  pecuniary  interest  of  the  so-called 
corporators"  of  the  drainage  district.    The 
trial  court  made  special  findings,  in  sub- 
stance, as  follows :  That  the  drainage  district 
had  been  legally  organized ;  that  the  defend- 
ants had  been  constituted  its  supervisors; 
that,  in  conformity  with  the  statute,  the 
drainage  district  had  been  declared  by  the 
district  court,  upon  due  notice  to  all  inter- 
ested parties,  as  required,  to  be  a  public  cor- 
poration of  the  state;  that  the  district  had 
employed  competent  civil  engineers  who  had 
made  a  complete  plan,  which   [247]   had 
been    presented    and    duly    confirmed,    for 
draining,    reclaiming,    and    protecting   the 
lands  in  the  district  from  overfiow ;  that  tho 
route    and    ditch,    thus    approved,     pro- 
Tided   the    most    feasible    and    the    safest 
method  for  taking  care  of  the  waters  of 
the    eredc;    that    the    description    of    the 
ditch,  as  shown,  was  a  "definite  and   ac- 
curate description  of  a  proper  right  of  way" ' 
•0  li.  ed. 


through  the  lands  of  plaintiffs  and  others; 
that  having  failed  to  agree  with  the  plain- 
tiffs as  to  the  value  of  the  right  of  way  and 
the  damages  which  would  result  from  the 
construction  and  maintenance  of  the  pro- 
posed ditch,  the  defendants  as  supervisors 
had  applied  to  the  county  judge  in  the  man- 
ner provided  by  law  for  the  appointment  of 
appraisers,  who,  having  been  duly  appointed, 
and  having  entered  upon  their  duties  and 
viewed  the  premises,  had  fixed  the  value  of 
the  right  of  way  and  the  damages  to  each 
of  the  plaintiffs  at  sums  stated  and  had  duly 
reported  accordingly;  that  the  outlet  of 
the  proposed  ditch  in  Jackson  lake  was  for- 
merly tiie  channel  of  the  Missouri  river  at  a 
low  stage,  and  that  by  way  of  this  lake 
there  was  an  adequate  and  direct  outlet  for 
the  water  of  the  creek  into  that  river  with- 
out overfiowing  the  plaintiffs'  lands;  and 
that  the  defendants  had  not  claimed  the 
right  to  enter  upon  these  lands  until  the 
award  of  the  appraisers  should  have  been 
paid  to  the  county  judge  for  the  benefit  of 
the  parties  respectively.  It  was  thereupon 
adjudged  that  when  the  awards  were  paid 
the  temporary  injunction  which  had  been 
issued  should  be  dissolved  and  the  action  dis- 
missed. This  judgment  was  affirmed  by  the 
supreme  court  of  the  state.  93  Neb.  786, 
142  N.  W.  112. 

With  many  of  the  questions  discussed  in 
argument  this  court  is  not  concerned.  It 
has  been  held  that  under  the  state  law  the 
drainage  district  was  a  public  corporation, 
duly  organized,  and  was  entitled  to  exercise 
the  power  of  eminent  domain.  The  pro- 
priety of  the  delegation  of  authority  to  the 
district  court  in  the  matter  of  the  formation 
[248]  of  the  drainage  district  is  a  state 
question.  The  attempt  to  invoke  $  4  of 
article  4  of  the  Federal  Constitution  is 
obviously  futile  (Pacific'  States  Teleph.  ft 
Teleg.  Co.  v.  Oregon,  223  U.  S.  118, 
56  L.  ed.  377,  32  Sup.  Ct.  Hep.  224), 
and  the  objection  as  to  suffrage  quali- 
fications in  connection  with  the  organi- 
sation and  management  of  the  district^ 
sought  to  be  based  on  the  15th  Amendment, 
is  likewise  wholly  devoid  of  substance.  It  is 
also  manifest  that  the  state  provided  a  tri- 
bunal for  the  determination  of  the  compen- 
sation due  to  the  plaintiffs  by  reason  of  the 
appropriation  in  question.  Constitution  of 
Nebraska,  art.  1.  §  21 ;  Laws  of  1905,  chap. 
161,  S  12;  Cobbey's  Anno.  Stat.  §§  10,517 
et  seq.;  Rev.  Stat.  1913,  §§  5940  et  seq. 
Appraisers  were  appointed,  and  the  plaintiffs 
had  due  notice  of  hearing;  they  had  full  op- 
portimity  to  be  heard,  to  present  any  rele- 
vant question,  and  to  complain  of  any  ir- 
regularity or  error.  The  questions  of  fact 
as  to  the  definite  location  of  the  ditch,  the 
value  of  the  right  of  way,  and  the  extent  of 

268 


248-2S0 


SUPREME  COURT  OF  THE  UNITED  STATES. 


OoT.  Tknc» 


the  damage  to  the  property  affected,  which 
would  be  sustained  through  oonstruction  and 
operation,  were  the  subject  of  determination 
in  an  appropriate  proceeding  i  See  United 
[249]  States  v.  Jones,  109  U.  S.  613,  619, 
27  L.  ed.  1015, 1017,  3  Sup.  Ct.  Rep.  346 ;  A. 
Backus  Jr.  ft  Sons  v.  Ft.  Street  Union  Depot 
Co.  169  U.  a  567,  568,  569,  42  L.  ed.  853, 
858,  859,  18  Sup.  Ct  Rep.  445;  Hooker  v. 
Los  Angeles,  188  U.  S.  314,  818,  47  L.  cd. 
487,  401,  63  L.RJ1.  471,  23  Sup.  Ct.  Rep. 
395;  Appleby  v.  Buffalo,  221  U.  S.  624,  532, 
65  L.  ed.  838,  842,  31  Sup.  Ct.  Rep.  699 ;  Mc- 
Govern  v.  New  York,  229  U.  S.  363,  370,  371, 
57  L.  ed.  1228,  1231,  1232,  46  L.RJ^.(N.S.) 
391,  33  Sup.  Ct.  Rep.  876.  It  is  said  that 
no  notice  to  the  plaintiffs  was  required  or 
given  of  the  application  for  the  appointment 
of  appraisers.  As  to  this,  however,  no  ques- 
tion of  Federal  right  appears  to  have  been 
raised  or  decided  in  the  supreme  court  of  the 
state,  nor  do  we  intimate  that  such  a  claim 
would  have  had  basis,  if  made.  It  is  plain 
that  with  respect  to  none  of  these  matters 
is  there  any  question  for  our  review.  Apple- 
by v.  Buffalo,  221  U.  S.  524,  629,  66  L.  ed. 
838,  840,  31  Sup.  Ct.  Rep.  699. 

The  defendants  in  error  have  moved  to 
dismiss  upon  the  ground  that  there  is  no 
Federal  question  whatever  presented  by  the 
record.  But  we  think  that  the  plaintiffs 
sufficiently  raised  the  question  whether  the 
appropriation  was  essentially  for  a  private 
purpose,  and  hence  contrary  to  the  14th 
Amendment,  as  amounting  to  a  deprivation 
of  property  without  due  process  of  law,  and 
that  tiieir  contention  as  to  their  Federal 
right  in  this  respect  was  denied  by  the  state 
court.  In  this  view,  jurisdiction  attaches 
(Missouri  P.  R.  Co.  v.  Nebraska,  164  U.  S. 
403,  417,  41  L.  ed.  489,  495,  17  Sup.  Ct.  Rep. 
80;  Madisonville  Traction  Co.  v.  St.  Bernard 
Min.  Co.  196  U.  S.  239,  251,  252,  49  L.  ed. 


462,  467,  468,  26  Sup.  Ct.  Rep.  261;  dark 
V.  Nash,  198  U.  S.  361,  49  L.  ed.  1085,  25 
Sup.  Ct.  Rep.  676,  4  Ann.  Cas.  1171;  Strick- 
ley  v.  Highland  Boy  Gold  Min.  Co.  200 
[250]  U.  S.  627,  50  L.  ed.  581,  26  Sup. 
Ct  Rep.  301,  4  Ann.  Cas.  1174;  Offidd 
V.  New  York,  N.  H.  ft  H.  R.  Co.  203 
U.  S.  372,  377,  61  L.  ed.  231,  236,  27 
Sup.  Ct.  Rep.  72;  Hairston  v.  Dan- 
ville  ft  W.  R.  Co.  208  U.  &  598,  606» 
606,  52  L.  ed.  637,  639,  640,  28  Sup.  Ct.  R^. 
331,  13  Ann.  Cas.  1008;  Union  Ume  Co.  t. 
Chicago  ft  N.  W.  R.  Co.  233  U.  S.  211,  218, 
58  L.  ed.  924,  928,  34  Sup.  Ct.  Rep.  622 )» 
and  we  pass  to  the  consideration  of  the  stat- 
utory plan. 

The  provisions  of  the  statute  are  elabor- 
ate, but  the  principal  features  may  be  brief- 
ly outlined.  In  a  proceeding  initiated  by 
a  majority  in  interest  of  the  owners  "in 
any  contiguous  body  of  swamp  or  overflowed 
lands,"  for  the  purpose  of  having  such  land 
reclaimed  and  protected  from  the  effects  of 
water,  the  district  court  for  the  proper  coun- 
ty may  declare  the  drainage  district  as  de- 
fined to  be  a  public  corporation  of  the  state. 
To  this  end,  the  initiating  proprietors  must 
file  articles  of  association,  giving  the  nam* 
of  the  proposed  district,  the  number  of  yeara 
it  is  to  continue,  its  extent,  which  must  not 
be  less  than  160  acres,  and  an  appropriate 
description  of  parcels  and  owners.  Provi- 
sion is  made  for  summons  to  nonsigning 
owners  of  lands  averred  to  be  benefited,  and 
for  the  hearing  of  objections  to  the  organi- 
zation. Property  not  benefited  may  be  ex- 
cluded from  the  district.  If  the  organiza- 
tion is  approved  by  the  court,  the  clerks 
within  a  time  specified,  is  to  call  a  meeting 
of  the  owners  of  the  lands  within  the  dis- 
trict for  the  Section  of  a  board  of  five 
supervisors,  to  be  composed  of  such  propri- 
etors, and  a  majority  of  whom  must  be  resi- 


1  With  respect  to  the  rights  of  the  plain- 
tiffs under  the  state  law,  the  state  court 
said:  "The  plaintiffs  contend  that  the  con- 
demnation proceedings  were  void  because 
they  do  not  condemn  and  take  certain  lands 
of  the  plaintiff  O'Neill  which  would  be 
flooded  bv  the  waters  of  the  ditch.  If  the 
plaintiffs^  lands,  other  than  those  taken  by 
the  condemnation  proceedings,  are  damaged 
by  this  improvement,  the  law  affords  them  a 
remedy,  including  the  right  of  appeal  to 
the  court  of  last  resort.  The  statute  pro- 
vides that  the  same  proceedings  for  condem- 
nation of  such  right  of  way  &M  be  had  in 
all  other  respects,  as  is  provided  by  law  for 
the  oondenmation  of  rights  of  way  for  rail- 
road corporations;  the  payment  of  damages 
and  the  rights  of  appeal  shall  be  applicable 
to  the  dramage  ditches  and  other  improve- 
ments provid^  for  in  this  act.'  Section  12. 
The  law  is  well  settled  in  such  case  by  many 
decisions  of  this  court.  When  the  remedy  at 
law  is  adequate,  the  prosecution  of  the  work 
964 


cannot  be  delayed  by  injunction.  .  .  » 
It  is  objected  that  the  application  for  con- 
demnation did  not  describe  and  locate  the 
proposed  ditch  with  sufficient  accuracy. 
.  .  .  The  drawings,  which  the  appraisers 
had,  showed  the  exact  location  of  the  pro- 
posed ditch.  Iliere  is  nothing  to  indicate 
that  the  appraisement  of  damages  was  in 
any  way  affected  by  any  supposed  uncer- 
tainty as  to  the  location.  The  count v  court 
had  power  to  correct  any  irregularities  in 
the  method  of  appraisement.  If,  by  reason 
of  the  difference  in  the  statute  from  that 
construed  in  Trester  v.  Missouri  P.  R.  Co. 
33  Neb.  171,  49  N.  W.  1110,  that  case  is  not 
to  be  regarded  as  decisive  of  the  case  at  bar 
upon  this  point,  which  we  do  not  decide,  it 
seems  clear  that  the  application  was  suf- 
ficiently definite  to  give  the  county  court 
jurisdiction  of  the  proceedings.  Errors,  if 
any,  not  affecting  the  jurisdiction  of  the 
court,  should  have  been  corrected  in  that 
court  or  upon  appeal."    93  Neb.  pp.  789,  790. 

239  U.  S. 


191S. 


O'NEILL  T.  LSAMEB. 


80O-20S 


dat  within  tli€  eouiitj  or  counties  in  which 
the  district  is  situated;  each  owner  is  to 
hsTc  one  vote  for  each  acre  owned.  Under 
the  direction  of  this  board,  which  has  de- 
fined  authority  and  compensation,  a  topo- 
grtphical  survey  is  to  be  made  of  the  dis- 
trict, the  various  tracts  and  properties  are 
to  be  classified  according  to  benefits,  which 
sre  to  be  assessed,  and  each  parcel  within 
the  district  is  to  bear  its  share  of  the  en- 
tire cost  and  expenses  incurred  in  malcing 
the  improvements  in  proportion  to  benefits. 
A  drain  commissioner  is  to  be  appointed, 
who,  subject  to  the  board's  control,  is  to 
have  general  superintendence  [251]  of 
woriu  under  contracts  awarded.  If  it  ap- 
pears that  lands  not  embraced  within  the 
district  will  be  benefited,  proceedings  may  be 
had  to  bring  them  in.  Condemnation  of 
hods,  easements,  or  franchises,  within  or 
without  the  district,  for  the  purpose  of  con- 
stmeting  the  necessary  ditches,  dylces,  etc., 
may  be  had.  Provision  is  made  for  the  hear- 
ing of  objections  to  the  proposed  classifica- 
tion and  assessments,  and  aggrieved  objec- 
tors may  appeal  from  the  decision  of  the 
board  of  supervisors  to  the  district  court. 
Tax  levies  upon  the  properties  assessed  are 
provided  for,  and  the  board  is  authorized  to 
issue  bonds  of  the  district  under  stated  con- 
ditions. Any  person  owning  lands  within  the 
district  which  is  separated  from  the  ditch  or 
water  course  for  which  it  has  been  assessed 
nay  secure  access  to  it  across  intervening 
lands  by  resort  to  a  described  proceeding. 
The  treasurer  of  the  county  in  which  the 
district,  or  the  largest  part  of  it,  is  situated, 
is  made  '*e»  officio  treasurer"  of  the  dis- 
trict for  the  purpose  of  collecting  and  dis- 
bursing the  taxes  or  assessments  laid  un- 
der the  act. 

The  plaintiffs  in  error  contend  that  the 
plan  is  simply  one  for  the  private  advantage 
of  the  property  owners,  and  they  direct 
special  attention  to  the  provision  of  the  stat- 
ute that  the  fact  that  the  district  is  to  con- 
tain 160  acres  or  more  of  wet  or  overflowed 
lands  shall  be  sufficient  cause  for  declaring 
the  "public  utility"  of  the  improvement. 
But  we  do  not  find  that  the  supreme  court  of 
the  state  has  sustained  the  act  as  applicable 
to  any  case  in  which  it  was  considered, 
iq>on  a  judicial  examination  of  the  facts, 
that  the  undertaking  served  private  inter- 
ests alone.  On  the  contrary,  we  assume  it 
to  be  the  law  of  Nebraska  that  property  may 
be  taken  in  the  furtherance  of  reclamation 
projects  only  where  it  is  found  that  the 
public  wdfare  is  involved.  Acts  with  a  dif- 
ferent purpose  have  been  held  unconstitu- 
tional. Jenal  v.  Green  Island  Draining  Co. 
12  Neb.  163,  10  N.  W.  647;  Welton  v.  Dick- 
son, 38  Neb.  767,  22  L.R.A.  496,  41  Am. 
St  Rep.  771,  57  N.  W.  669.  [262]  With  re- 
••  Ii.  ed. 


speet  to  the  act  here  in  questioii  the  state 
court  hat  emphatically  declared  that  the  en- 
terprises which  it  contemplates  are  those 
distinctly  of  a  publie  character.  In  Drainage 
Dist.  v.  Richardson  County,  86  Neb.  366, 
126  N.  W.  796,  where  the  county  was  re- 
quired to  contribute  on  account  of  special 
benefits  accruing  to  its  highways  within  a 
drainage  district  organised  under  the  stat- 
ute, the  supreme  court  of  Nebraska  said  up- 
on this  point:  "That  question  was  decided 
by  this  court  in  the  case  of  Neal  v.  Van- 
sickle,  72  Neb.  106,  100  N.  W.  200.  It  was 
there  said:  That  the  districts  contem- 
plated by  the  act  are  intended  to  be  of  a 
purely  public  and  administrative  character 
is  evident  as  well  from  the  title  as  from  the 
body  of  the  law  itself.  Its  officers  are  cho- 
sen by  popular  election  and  their  powers,  du- 
ties, compensation,  and  terms  of  service 
are  prescribed  by  the  statute.  The  sources 
of  its  income  are  predetermined,  as  are  also 
the  uses  to  which  it  may  be  applied;  and 
the  county  treasurer  is  made  the  custodian 
of  its  funds,  and  his  disbursement  of  them 
regulated  as  in  case  of  other  public  moneys. 
In  our  opinion,  it  is  too  late  in  the  day  to 
contend  that  the  irrigation  of  arid  lands,  the 
straightening  and  improvement  of  water 
courses,  the  building  of  levees  and  the 
drainage  of  swamp  .and  overflowed  lands  for 
the  improvement  of  the  health  and  comfort 
of  the  conununity,  and  the  reclamation  of 
waste  places  and  the  promotion  of  agricul- 
ture, are  not  all  and  every  of  them  subjects 
of  general  and  public  concern,  the  promo- 
tion and  regulation  of  which  are  among  the 
most  important  of  governmental  powers,  du- 
ties, and  functions.'  .  •  .  We  see  no  rea- 
son at  this  time  to  depart  from  that  opin- 
ion, and  therefore  this  contention  must  be 
considered  foreclosed  so  far  as  this  court  is 
concerned." 

See  also  Barnes  v.  Minor,  80  Neb.  189, 
114  N.  W.  146;  State  ex  rel.  Harris  v.  Han- 
son, 80  Neb.  724,  742,  116  N.  W.  294,  117 
N.  W.  412.  These  decisions  were  deemed  to 
be  controlling  in  the  present  case.  93  Neb. 
pp.  788.  789,  142  N.  W.  112. 

[253]  We  find  no  ground  for  a  contrary 
view  as  to  the  nature  of  the  authorized  en- 
terprise. We  have  repeatedly  said  that  the 
provisions  of  the  14th  Amendment,  embody- 
ing fundamental  conceptions  of  justice,  can- 
not be  deemed  to  prevent  a  state  from 
adopting  a  public  policy  for  the  irrigation 
of  arid  lands  or  for  the  reclamation  of  wet 
or  overflowed  lands.  States  may  take  ac- 
count of  their  special  exigencies,  and  when 
the  extent  of  their  arid  or  wet  lands  is  such 
that  a  plan  for  irrigation  or  reclamation  ac- 
cording to  districts  may  fairly  be  regarded 
as  one  which  promotes  the  public  interest, 
there  is  nothing  in  the  Federal  Constitu- 

266 


26S,  264 


6UPRrai£  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


tion  which  denies  to  them  the  right  to  for- 
mulate this  policy  or  to  exercise  the  power 
of  eminent  domain  in  carrying  it  into  ef- 
fect.    With  the  local  situation  the  sUte 
court  is  peculiarly  familiar  and  its  judg- 
ment  is   entitled  to   the   highest   respect. 
Clark  V.  Nash,  198  U.  8.  361,  49  L.  ed. 
1085,  26  Sup.  Ct.  Rep.  676,  4  Ann.  Cas. 
1171;  Strickley  y.  Highland  Boy  Gold  Min. 
Co.  200  U.  S.  627,  60  L.  ed.  681,  26  Sup.  Ct. 
Rep.  301,  4  Ann.  Cas.  1174;  Hairston  v. 
Danville  ft  W.  R.  Co.  208  U.  S.  698,  606, 
606,  62  L.  ed.  637,  639,  640,  28  Sup.  Ct. 
Rep.  331,  13  Ann.  Cas.  1008;  Union  Lime 
Co.  ▼.  Chicago  &  N.  W.  R.  Co.  233  U.  S.  211, 
218, 68  L.  ed.  924,  9$$8,  34  Sup.  Ct.  Rep.  622. 
It  has  been  held  that  it  is  not  necessary  that 
the  state  power  should  rest  simply  upon 
the  ground  that  the  undertaking  is  ne^ed 
for  the  public  health;  there  are  manifest- 
ly other  considerations  of  public  advantage 
ill  prorldiiig  a  general  plan  of  reclamation 
1^  which  wet  lands  throughout  the  state 
may  be  opened  to  profitable  use.    Fallbrook 
Irrig.    Dist   ▼.   Bradley,    164   U.    S.    112, 
163,  41  L.  ed.  869,  390,  17  Sup.  Ct.  Rep.  66. 
Nor  is' the  statutory  scheme  to  be  condemned 
because   it   contemplates   improvements   in 
districts.    Drainage  districts  may  be  estab- 
lished as  well  as  school  districts.    All  lands 
within  the  established  district  which  require 
drainage  are  to  enjoy  the  benefits  of  the 
plan.    See  2  Lewis  Em.  Dom.  3d  ed.  p.  671. 
Nor  is  it  an  objection  that  private  property 
within  the  district,  which  is  established  in 
execution  of  the  public  policy,  will  be  bene- 
fited ;  and  it  is  clearly  not  improper  that  the 
cost  and  expense  should  be  apportioned  ac- 
cording [254]  to  benefits.  Fallbrook  Irrig. 
Dist  ▼•  Bradley,  supra. 

In  the  present  instance,  the  record  shows 
that  the  drainage  district,  as  organijced,  em- 
braces a  large  area  with  many  proprietors, 
and  that  after  contest  in  the  original  pro- 
ceeding the  district  court  made  its  deliber- 
ate order  that  tbe  enterprise  would  be  a  pub- 
lic utility  and  conducive  to  the  "public  con- 
venience, health,  and  welfare."  Nothing 
appears  to  warrant  a  different  conclusion. 
Neither  in  the  statutory  provisions  as  con- 
strued by  the  state  court  nor  in  their  ap- 
plication in  the  particular  case  is  there 
basis  for  finding  that  the  plaintiffs  in  error 
have  been  deprived  of  their  property  without 
due  process  of  law.  Rather  must  it  be  said 
that  the,  ruling  bM  to  the  authority  of  the 
state  to  make  the  condemnation  for  the  pre- 
scribed purpose  has,  from  the  standpoint 
of  the  Federal  Constitution,  abundant  sup- 
port in  the  decisions  of  this  court.  Wurts 
T.  Hoagland,  114  U.  8.  606,  29  L.  ed.  229, 
5  Sup.  Ct.  Rep.  1086;  Fallbrook  Irrig.  Dist. 
T.  Bradley,  supra;  Clark  v.  Nash,  198  U.  S. 
361,  49  L.  ed.  1086,  26  Sup.  Ct  Rep.  676, 


4  Ann.  Cas.  1171;    Strickley  v.  Highland 
Boy  Gold  Min.  Co.  200  U.  S.  627,  60  L.  ed. 
681,  26  Sup.  Ct.  Rep.  301,  4  Ann.  Cas.  1174. 
Judgment  affirmed. 


LOUIS  TTonnrr  and  Maiy  H.  G.  Houck* 
His  Wife;  Charles  J.  Juden  and  C.  G. 
Cox,  Plffs.  in  Err., 

▼. 

LITTLE  RIVER  DRAINAGE  DISTRICT, 
John  H.  Himmelberger,  et  aL 

(See  S.  C.  Rep(Nrter*s  ed.  ^2^^-267.) 

Constitutional  law  —  due  process  of  law 

—  assessing    drainage    expenses    by 
acreage  within  district. 

1.  The  levy  of  the  maximum  tax  of  26 
cents  per  acre  to  defrinr  preiiminary  ex- 
penses, conformably  to  Mo.  Rev.  Stat.  1909, 
§  6538,  upon  all  the  lands  within  a  drain- 
age district  diUy  organized  by  a  court  order 
under  legislative  authoritv,  does  not  take, 
without  due  process  of  law,  contrary  to 
U.  S.  Const,  14th  Amend.,  the  proper^  of 
the  owners  of  land  within  the  district  which 
may  not  be  benefited  l^  the  completed  drain- 
age plans. 

[For  other  cases,  see  Constitutional  Law,  661- 
681,  in  Digest  Sup.  Ct.  1908.1 

Constitutional  law  —  due  process  of  law 

—  taxation  for  public  improvement  — 
retrospective  statute. 

2.  Taxinff  for  preliminary  expenses  the 
property  within  a  drainage  district,  con* 
formabfy  to  Mo.  Rev.  Stat.  1909,  %  6688, 
does  not  ti^e  property  without  due  process 
of  law,  contrary  to  U.  S.  Const,  14th 
Amend.,  because  this  section  was  enacted 
after  the  district  was  organized,  where  the 

Note. — ^As  to  what  constitutes  due  process 
of  law,  generally— see  notes  to  People  v. 
O'Brien,  2  LJLA^  266;  Kuntz  v.  Sumption, 
2  L.ILA.  666;  Re  Gannon,  6  L.R.A.  369; 
Ulman  v.  Baltimore,  11  L.RA.  224;  Gil- 
man  V.  Tucker,  13  L.R.A.  304;  Pearson  v. 
Yewdall,  24  L.  ed.  U.  S.  436;  and  Wilson 
V.  North  Carolina,  42  L.  ed.  U.  S.  866. 

Generally  as  to  what  laws  are  void  as 
impairing  obUgation  of  contracts — see  notes 
to  Franklin  County  Granunar  School  v. 
Bailey,  10  L.R.A.  406 ;  Bullard  v.  Northern 
P.  R.  Co.  11  LJt.A.  246;  Henderson  v.  State 
Soldiers  &  S.  Monument  Comrs.  13  L.RJ^. 
169;  and  Fletcher  v.  Peck,  3  L.  ed.  U.  8. 

162w 

As  to  persons  and  property  liable  for  ex* 
pense  of  drainage — see  notes  to  Hefltaer  t. 
Cass  k  Morgan  Counties,  68  L.R.A.  363,  and 
Billings  Sugar  Co.  ▼.  Fish,  26  L.R.A.(NJ3.) 
973. 

Generally,  as  to  what  laws  are  em  poet 
facto—eee  notes  to  Anderson  v.  CDonnell, 
1  L.RJ1.  632;  SUte  v.  Cooler,  3  L.RJ^. 
181;  Calder  v.  Bull,  1  L.  ed.  U.  S.  648; 
Sturges  V.  Crowninshield,  4  L.  ed.  U.  S.  629; 
Otoe  County  v.  Baldwin,  28  L.  ed.  U.  S. 
331;  Re  Medl^,  33  L.  ed.  U.  S.  836;  and 
BamitB  v.  Beverly,  41  L.  ed.  U.  S.  94. 

2St  17.  B. 


1915. 


HOUCK  V.  LiriliE  RIVER  DRAINAGE  DIST. 


statute  which  was  in  force  at  the  time  of 
the  formation  of  the  district  (Mo.  Laws 
1905,  §  8252)  contemplated  liability  to 
taxation  to  defray  the  preliminary  expenses 
as  well  as  the  ultimate  cost  of  the  improve- 
ments  if  made,  since  these  preliminary  out- 
lays must  be  regarded  as  incident  to  the 
organization,  for  whidi  the  legislature  was 
competent  to  provide  in  the  exercise  of  its 
taxing  power. 

{For  other  cases,  see  Conatltntional  Law.  661- 
581,  993-1000,  in  Diffeit  Sup.  Ct.  1908.] 

Constitntlonsl  law  —  impairing  con* 
tract  obligations  —  charter  of  pnblio 
corporation. 

3.  Ihe  charter  of  a  drainage  district  as 
a  public  corporation  does  not  constitute  a 
contract  with  its  members  that  the  laws  it 
was  created  to  administtf  will  not  be 
changed. 

CPor  other  cases,  see  Constitutional  Law, 
1081-1087,  in  Digest  Sup.  Ct.  1908.] 

[No.  35.] 

Argued  October  27  and  28,  1016.    l^ecided 
November  20,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Missouri  to  review  a  decree 
which  affirmed  a  decree  of  the  Circuit  Court 
of  Cape  Girardeau  County,  in  that  state, 
dismissing  the  petition  in  a  suit  to  restrain 
the  collection  of  a  tax.    Affirmed. 

See  same  case  below,  248  Mo.  373,  154  S. 
W.  739. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Benson  O.  Hardesty  and 
Giboney  Houck  argued  the  cause,  and, 
with  Mr.  Thomas  D.  Hines,  filed  a  brief  for 
plaintiffs  in  error: 

What  may  be  done  under  Mo.  Rev.  Stat. 
]900,  §  5538,  construed  in  connection  with 
all  the  Missouri  drainage  laws,  is  the  con- 
stitutional test  to  be  applied,  and  plaintiffs 
in  error  are  neither  estopped  nor  barred 
from  challenging  this  law. 

Stuart  T.  Palmer,  74  N.  Y.  191,  30  Am. 
Rep.  280,  State,  Agens,  Prosecutor,  v.  New- 
ark, 37  N.  J.  L.  420,  18  Am.  Rep.  729 ;  Nor- 
wood V.  Baker,  172  U.  S.  269,  43  L.  ed. 
443,  19  Sup.  Ct.  Rep.  187;  Northern  P.  R. 
Co.  V.  Pierce  County,  51  Wash.  12,  23 
L.R.A.(N.S.)  286,  97  Pac  1099;  Little 
River  Drainsge  Dist.  v.  St.  Louis,  M.  &  S. 
£.  R.  Co.  236  Mo.  94,  139  8.  W.  330; 
Charles  v.  Marion,  98  Fed.  166;  Moss  ▼. 
Whitzel,  108  Fed.  582;  Chicago,  B.  &  Q. 
R.  Co.  v.  Chicago,  166  U.  S.  226,  241,  41 
L.  ed.  979,  086,  17  Sup.  Ct.  Rep.  581;  David- 
son V.  New  Orleans,  96  U.  S.  97,  104,  105, 
24  L.  ed.  616,  619,  620;  Cooley,  Const.  Lim. 
••356,  357;  2  Story,  Const.  Cooley^s  ed.  § 
1956;  Squaw  Creek  Drainage  Dist.  v. 
Tumey,  235  Mo.  80,  138  S.  W.  12;  Violett 
▼.  Alexandria,  92  Va.  561,  31  L.R.A.  382, 
63  Am.  St.  Rep.  825,  23  S.  E.  909;  Ohlmann 
60  L«  ed. 


V.  Clarkson  Saw  MiU  Go.  222  Mo.  62,  28 
L.R.A.(N.S.)  432,  133  Am.  St.  Rep.  506, 
120  S.  W.  1155;  Gist  v.  Rackliffe-Gibson 
Constr.  Co.  224  Mo.  369,  123  S.  W.  921; 
Ross  y.  Wright  County,  128  Iowa,  436,  1 
L.RJL(N.S.)  431,  104  N.  W.  506. 

The  avowed  purpose  and  only  possible 
legal  purpose  of  this  section  is  a  public 
one,  and  involves  the  taking  of  private 
property  for  public  use. 

Morrison  v.  Morey,  146  Mo.  563,  48  S. 
W.  629;  Mound  City  Land  &  Stock  Co.  t. 
Miller,  170  Mo.  258,  60  L.RJ^.  190,  94  Am. 
St.  Rep.  727,  70  S.  W.  721;  Chicago,  B.  ft 
Q.  R.  Co.  V.  Illinois,  200  U.  S.  561,  50 
lu  ed.  596,  26  Sup.  Ct.  Rep.  341,  4  Ann. 
Cas.  1175;  Egyptian  Levee  Co.  v.  Hardin, 

27  Mo.  496,  72  Am.  Dee.  276;  St.  Louis  use 
of  Creamer  v.  Oeters,  36  Mo.  456;  Kansas 
City  use  of  Coates  v.  Ridenour,  84  Mo.  259; 
St.  Joseph  V.  Anthony,  30  Mo.  537;  Inde- 
pendence V.  Gates,  110  Mo.  374,  19  S.  W. 
728;  St  Louis  v.  Rankin,  06  Mo.  497,  9 
S.  W.  910;  Kansas  City  v.  Ward,  134  Mo. 
172,  35  S.  W.  600. 

Due  process  of  law  requires  compensation 
for  private  property  taken  for  public  use. 

Long  Island  Water  Supply  Co.  v.  Brook- 
lyn, 166  U.  S.  695,  41  L.  ed.  1168,  17  Sup. 
Ct.  Rq>.  718;  Corrigan  v.  Gage,  68  Mo.  541; 
Albright  V.  Fisher,  164  Mo.  68,  64  S.  W. 
106;  St.  Louis  v.  St  Louis  Theatre  Co.  202 
Mo.  699,  100  S.  W.  627;  Chicago,  B.  &  Q. 
R.  Co.  V.  Chicago,  166  U.  S.  226,  241,  41 
L.  ed.  979,  986,  17  Sup.  Ct  Rep.  581;  Nor- 
wood ▼.  Baker,  172  U.  S.  269,  43  L.  ed. 
443,  19  Sup.  Ct.  Rep.  187;  Chicago,  B.  & 
Q.  R.  Co.  V.  UUnois,  200  U.  S.  561,  50  L. 
ed.  596,  26  Sup.  Ct.  Rep.  341,  4  Ann.  Cas. 
1175. 

If  the  drainage  plan  should  fail,  there 
can  then  be  no  compensation  of  the  char- 
acter contemplated  by  due  process  of  law. 

Kiley  v.  Cranor,  51  Mo.  542,  14  Cyc. 
1059 ;  Lipes  v.  Hand,  104  Ind.  503,  1  N.  E. 
871,  4  N.  E.  160 ;  Kansas  City  v.  O'Connor, 
82  Mo.  App.  655;  Chicago  v.  Blair,  149 
111.  310,  24  LJt.A.  412,  36  N.  E.  829; 
New  York  L.  Ins.  Co.  v.  Prest,  71  Fed.  817 ; 
Pettit  V.  Duke,  10  UUh,  311,  37  Pac.  568; 
Owensboro  ▼•  Sweeney,  129  Ky.  607,  18 
LJlJk.(N.S.)  181,  130  Am.  St  Rep.  477, 
111  S.  W.  364 ;  Stevena  v.  Port  Huron,  140 
Mich.  536,  113  N.  W.  291,  12  Ann.  Cas. 
603;  Kalamazoo  v.  Crawford,  164  Mich. 
58,  117  N.  W.  572,  16  Ann.  Cas.  110;  Wash- 
ington Ice  Co.  V.  Chicago,  147  lU.  327,  37 
Am.  St  Rep.  222,  35  N.  E.  378 ;  Kansas  City 
V.  St  Louis  &  S.  F.  R.  Co.  230  Mo.  369, 

28  L.R«A.(N.S.)  669,  130  S.  W.  273;  Hutt 
V.  Chicago,  ]32  111.  352,  23  N.  E.  1010; 
Waukegan  v.  Burnett,  234  lU.  460,  84  N. 
E.  161;  Chicago  v.  Kemp,  240  111.  56,  88 
N.  K  284;    lindblad  v.  Normal,  224  IlL 

267 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct. 


362,  79  N.  £.  675;  Holdom  t.  Chicago,  169 
111.  109,  48  N.  E.  164 ;  State,  Kellogg,  Pro0- 
ecutor,  y.  Elizabeth,  40  N.  J.  L.  274;  Title 
Guarantee  &  T.  Co.  t.  Chicago,  162  III. 
505,  44  N.  E.  832;  Re  Park  Ayenue  Sewers, 
169  Pa.  433,  32  Atl.  574;  Edwards  y.  Chi- 
cago, 140  111.  440,  30  N.  E.  350;  Bridgeport 
y.  New  York  &  N.  H.  R.  Co.  36  Conn.  255, 
4  Am.  Rep.  63;  Wistar  y.  Philadelphia, 
80  Pa.  505,  21  Am.  Rep.  112;  Re  Market 
Street,  49  CaL  546;  Hanscom  y.  Omaha, 
11  Neb.  37,  7  N.  W.  739;  Chamberlain  y. 
Cleveland,  34  Ohio  St.  551;  Hartford  v. 
West  Middle  IMst.  45  Conn.  462,  29  Am. 
Rep.  687;  Cooley,  Taxn.  416,  chap.  20,  ^  1; 
Cooley,  Taxn.  2d  ed.  606,  ^  1;  Hammett 
y.  Philadelphia,  65  Pa.  146,  3  Am.  Rep. 
615;  State,  Agens,  Prosecutor,  y.  Newark, 
37  N.  J.  L.  416,  18  Am.  Rep.  729;  Davidson 
v.. New  Orleans,  96  U.  S.  97,  24  L.  ed.  616; 
Citizens'  Sav.  &  L.  Asso.  y.  Topeka,  20 
Wall.  655,  22  L.  ed.  455;  McCormack  v. 
Patchin,  53  Mo.  36,  14  Am.  Rep.  440;  Nor- 
wood y.  Baker,  172  U.  S.  269,  43  L.  ed.  443, 
19  Sup.  Ct.  Rep.  187;  2  Dill.  Mun.  Corp. 
4th  ed.  p.  934,  f  761;  Mobile  County  v. 
Kimball,  102  U.  S.  691,  703,  704,  26  L. 
ed.  238,  241,  242;  Illinois  C.  R.  Co.  y. 
Decatur,  147  U.  S.  190,  37  L.  ed.  132,  13 
Sup.  Ct.  Rep.  293;  Bauman  y.  Ross,  167 
U.  S.  548,  589,  42  L.  ed.  270,  288,  17  Sup. 
Ct.  Rep.  966;  Barber  Asphalt  Paving  Co. 
y.  French,  158  Mo.  534,  54  L.RJ^.  492,  58 
S.  W.  934,  181  U.  S.  324,  45  L.  ed.  879, 

21  Sup.  Ct.  Rep.  625;  Parsons  y.  District 
of  Columbia,  170  U.  S.  54,  42  L.  ed.  947, 
18  Sup.  Ct.  Rep.  521;  Heman  y.  Schulte, 
166  Mo.  409,  66  S.  W.  163;  Corrigan  v. 
Gage,  68  Mo.  541;  Spencer  v.  Merchant, 
125  U.  S.  345,  31  L.  ed.  763,  8  Sup.  Ct. 
Rep.  921. 

Even  if  the  drainage  plan  should  suc- 
ceed, still  no  compensation  can  result  so 
far  as  concerns  the  large  area  of  plaintiffs' 
lands  necessarily  condemned  for  public  use, 
and  which  same  area  is  assessed  with  this 
tax. 

Squaw  Creek  Drainage  Dist  t.  Tumey, 
235  Mo.  80,  138  S.  W.  12;  Hanscom  v. 
Omaha,  11  Neb.  37,  7  N.  W.  739;  Cham- 
berlain y.  Cleveland,  34  Ohio  St.  551;  Hart- 
ford y.  West  Middle  Dist.  45  Conn.  462,  29 
Am.  Rep.  687;  Re  Park  Avenue  Sewers, 
169  Pa.  433,  32  Atl.  574;  Heman  y.  Schulte, 
166  Mo.  409,  66  S.  W.  163;  Barber  Asphalt 
Paving  Co.  y.  French,  158  Mo.  534,  54 
L.R.A.  492,  58  S.  W.  934,  181  U.  S.  324, 
45  L.  ed.  879,  21  Sup.  Ct.  Rep.  625. 

The  Missouri  supreme  coiu^  erred  in  ad- 
judging that  said  §  5538  is  not  retrospec- 
tive so  as  to  violate  due  process  of  law. 

State  ex  rel.  Board  of  Education  v.  Haben, 

22  Wis.  660;  Pawlet  y.  Clark,  9  Cranch, 
332,  3  L.  ed.  749;  Terrett  v.  Taylor,  9 
268 


Cranch,  50,  3  L.  ed.  653;  Charles  Riyer 
Bridge  y.  Warren  Bridge,  11  Pet.  603,  • 
L.  ed.  846;  Walla  Walla  v.  Walla  Walla 
Water  Co.  172  U.  S.  9,  43  L.  ed.  345,  1» 
Sup.  Ct.  Rep.  77;  Bailey  v.  Philadelphia, 
W.  &  B.  R.  Co.  4  Harr.  (Del.)  389,  44  Am. 
Dec  593;  Edwards  y.  Kearzey,  96  U.  S. 
595,  24  L.  ed.  793;  Mnhlker  v.  New  York 
&  H.  R.  Co.  197  U.  S.  544,  49  L.  ed.  872, 

25  Sup.  Ct.  Rep.  522;  St.  Louis  use  of 
Creamer  v.  Clemens,  52  Mo.  144;  State  ex 
rel.  Haeussler  y.  Greer,  78  Mo.  188;  Fisher 
y.  Patton,  134  Mo.  63,  33  S.  W.  451,  34  S. 
W.  1096;  Re  PeU,  171  N.  Y.  48,  57  hJRJi. 
540,  89  Am.  St.  Rep.  791,  63  N.  E.  789; 
State  ex  rel.  Pittman  y.  Adams,  44  Mo. 
570;  Dartmouth  College  v.  Woodward, 
4  Wheat.  518,  4  L.  ed.  629 ;  Leete  y.  State 
Bank,  115  Mo.  201,  21  S.  W.  788;  Wester- 
velt  y.  Gregg,  12  N.  Y.  202,  62  Am.  Dec 
160;  Norris  v.  Beyea,  13  N.  Y.  273;  Holmea 
v.  Holmes,  4  Barb.  295;  Ryder  v.  Hulse^ 
24  N.  Y.  372;  Sperry  v.  Haslam,  57  Ga. 
412;  Dunn  y.  Sargent,  101  Mass.  336; 
Fletcher  v.  Peck,  6  Cranch,  87,  3  L.  ed. 
162;  Davis  y.  Gray,  16  Wall.  203,  Zl  L. 
ed.  447;  Fisk  y.  Jefferson,  116  U.  S.  131, 
29  L.  ed.  587,  6  Sup.  Ct.  Rep.  329;  Louisi- 
ana ex  rel.  Nelson  v.  St.  Martin's  Parish^ 
111  U.  S.  716,  28  L.  ed.  574,  4  Sup.  Ct. 
Rep.  648;  Hall  v.  Wisconsin,  103  U.  S.  5, 

26  L.  ed  302;  Gordon  v.  Appeal  Tax  Ct.  3 
How.  133,  11  L.  ed.  529. 

The  Missouri  supreme  court  erred  in  ad- 
judging that  said  section  does  not  impair 
the  obligation  of  contracts. 

State  ex  rel.  Mulholland  y.  Smith,  141 
Mo.  1,  41  S.  W.  906;  Kaukauna  Water 
Power  Co.  y.  Green  Bay  &  M.  Canal  Co. 
142  U.  S.  254,  35  L.  ed.  1004,  12  Sup.  Ct. 
Rep.  173;  Wilson  y.  Black  Bird  Creek 
Marsh  Co.  2  Pet.  245,  7  L.  ed.  412;  Arm- 
strong y.  Athens  County,  16  Pet.  281,  10 
L.  ed.  965;  Chicago  L.  Ins.  Co.  v.  Needles, 
113  U.  S.  574,  28  L.  ed.  1084,  5  Sup.  Ct. 
Rep.  681;  Eurdca  Lake  &  Y.  Canal  Co.  v. 
Superior  Ct.  116  U.  8.  410,  29  L.  ed.  671, 
6  Sup.  Ct.  Rep.  429;  McGrew  v.  Missouri 
P.  R.  Co.  230  Mo.  496,  132  S.  W.  1076 ;  Ex 
parte  Siebold,  100  U.  S.  371,  25  L.  ed.  717. 

Messrs.  Robert  B.  Oliver,  Jr.,  and 
Ilobert  B.  Oliver,  argued  the  cause,  and, 
with  Mr.  Allen  Laws  Oliver,  filed  a  brief 
for  defendants  in  error: 

The  general  assembly  of  Missouri  has  the 
legal  and  constitutional  right  to  create 
drainage  and  levee  districts  apd  to  fix  their 
territorial  limits,  and  may  also  determine 
the  amount  of  the  assessment  against  each 
tract  of  land  within  the  district.  It  also 
has  the  right  to  delej;ate  these  powers  to 
any  agency  of  the  state  created  by  it. 

Little  River  Drainage  Dist.  v.  St.  Louis^ 
M.  &  S.  E.  R.  Co.  236  Mo.  Ill,  139  S.  W. 

239  U.  S. 


1915. 


HOUCK  T.  LITTLE  RIVER  DRAINAGE  DIST. 


330;  Egyptian  Leree  Go.  ▼.  Hardin,  27  Mo. 
495,  72  Am.  Dec  276;  Oolmnbia  Bottom 
heiwte  Co.  t.  Meier,  39  Mo.  57;  Morrison 
y.  Morey,  146  Mo.  561,  48  a  W.  629; 
Mound  City  Land  ft  Stock  Co.  t.  Miller,  170 
Mo.  251,  60  L.RJL  190,  94  Am.  St  Rep. 
727,  70  S.  W.  721;  Barber  Asphalt  Paving 
Co.  V.  French,  158  Mo.  534,  54  JjJEUk.  492, 
58  S.  W.  034,  181  U.  S.  324,  45  L.  ed.  879, 
21  Sup.  Ct.  Rep.  625;  Meier  v.  St.  Louis, 
180  Mo.  408.  79  S.  W.  955;  Heman  v.  Wa- 
bash R.  Co.  206  Mo.  179,  12  LJIJ^.(N.S.) 
112,  121  Am.  St.  Rep.  649,  104  S.  W.  67, 
12  Ann.  Cas.  630;  Hagar  ▼.  Reclamation 
Dist.  Ill  U.  S.  701,  28  L.  ed.  569,  4  Sup. 
Ct.  Rep.  663;  Walston  y.  Neyin,  128  U.  S. 
578,  32  L.  ed.  544,  9  Sup.  Ct  Rep.  192; 
Williams  y.  Eggleston,  170  U.  S.  304,  42 
L.  ed.  1047,  18  Sup.  Ct.  Rep.  617;  Spencer 
v.  Merchant,  125  U.  8.  345,  31  L.  ed.  763, 
8  Sup.  Ct.  Rep.  921;  Bauman  y.  Ross,  167 
U.  S.  548,  42  L.  ed.  270,  17  Sup.  Ct.  Rep. 
966;  Soliah  v.  Heskin,  222  U.  S.  522,  56 
L.  ed.  294,  32  Sup.  Ct  Rep.  103 ;  Cleyeland, 
C.  C.  &  St.  L.  R.  Co.  y.  Porter,  210  U.  S. 
177,  52  L.  ed.  1012,  28  Sup.  Ct  Rep.  647; 
New  Orleans  Qaslij^t  Co.  v.  Drainage  Com- 
mission, 197  U.  S.  453,  49  L.  ed.  831,  25 
Sup.  Ct.  Rep.  471. 

It  is  within  the  power  of  the  legislature 
of  Missouri  to  charge  the  property  within 
the  q>ecial  assessment  district  at  a  leyel 
rate,  with  the  cost  of  improyements,  and 
apportion  the  same  either  according  to  the 
front-foot  rule,  or  according  to  the  area 
(acreage)  rule,  or  according  to  q>ecial  bene- 
fits derived.  In  eithtf  event  it  acts  within 
constitutional  limits. 

Chicago,  B.  &  Q.  R.  Co.  V.  Illinois,  200  U. 
8.  561,  50  L.  ed.  596,  26  Sup.  Ct  Rep.  341, 
4  Ann.  Cas.  1175;  Spencer  v.  Merchant*  125 
U.  S.  345,  31  L.  ed.  763,  8  Sup.  Ct.  Rep. 
921;  Wight  V.  Davidson,  181  U.  a  371, 
45  L.  ed.  900,  21  Sup.  Ct.  Rep.  616;  Cass 
Farm  Co.  v.  Detroit*  181  U.  S.  396,  45  L. 
ed.  914,  21  Sup.  Ct  Rep.  644;  Detroit  v. 
Parker,  181  U.  S.  399,  45  L.  ed.  917,  21 
Sup.  Ct  Rep.  624;  Webster  v.  Fargo,  181 
U.  S.  394,  45  U  ed.  912,  21  Sup.  Ct  Rep. 
623;  Little  River  Drainage  Dist  v.  St 
Louis,  M.  &  S.  E.  R.  Co.  236  Mo.  109,  139 
8.  W.  330;  Egyptian  Levee  Co.  v.  Hardin, 
27  Mo.  405,  72  Am.  Dec.  276;  Columbia 
Bottcun  Levee  Co.  v.  Meier,  39  Mo.  53; 
Prior  v.  Buehler  k  C.  Constr.  Co.  170  Mo. 
448,  71  S.  W.  205;  Meier  v.  St  Louis,  180 
Mo.  391,  79  S.  W.  955;  Barber  Asphalt 
Paving  Co.  v.  French,  158  Mo.  534,  54 
LJLA.  492,  58  S.  W.  934,  181  U.  S.  324, 
45  L.  ed.  879,  21  Sup.  Ct.  Rep.  625 ;  North- 
em  P.  R.  Co.  v.  Pierce  County,  51  Wash. 
12*  23  L.RJL(N.S.)  286,  97  Pac.  1099; 
Gilsonite  Roofing  k  Paving  Co.  v.  St.  Louis 
Fair  Asso.  231  Mo.  589,  132  S.  W.  657; 
60  li.  ed. 


Pleadwell  v.  Missouri  Glass  Co.  151  Mo. 
App.  51,  131  S.  W.  941;  Fruin-Bambrick 
Constr.  Co.  v.  iSt  Louis  Shovel  Co.  211  Mo. 
534,  111  a  W.  86;  Munson  v.  Atdiafalaya 
Basin  Levee  Dist  43  La.  Ann.  15,  8  So. 
906;  Wallace  v.  Shdton,  14  La.  Ann.  503; 
Caton  v.  Western  Clay  Drainage  Dist.  87 
Ark.  8, 112  a  W.  145;  Sheley  v.  Detroit  45 
Mich.  431,  8  N.  W.  52;  Creamer  v.  Allen,  3 
Mo.  App.  548;  Cooley,  Tazn.  1st  ed.  p.  454. 

The  legislature  of  Missouri  has  the  legal 
and  constitutional  right  to  apportion  the 
costs  of  the  improvements  upon  the  prop- 
erty in  the  Little  River  Drainage  District 
according  to  the  frontage  or  area  rule 
without  judicial  inquiry  as  to  the  value  of 
benefits  the  property  assessed  would  re- 
ceive, and  the  exercise  of  such  a  power  will 
not  constitute  the  taking  of  private  prop- 
erty without  due  process  of  law  under 
either  the  state  or  Federal  Constitution. 

Briscoe  V.  Rudolph,  221  U.  S.  547,  55  L. 
ed.  848,  31  Sup.  Ct  Rep.  670;  Spencer  v. 
Merchant^  125  U.  S.  345,  356,  31  L.  ed. 
763,  767,  8  Sup.  Ct  R^.  921;  Hagar  v. 
Reclamati<m  Dist  111  U.  S.  701,  28  L.  ed. 
569,  4  Sup.  Ct  Rep.  663;  French  v.  Barber 
Asphalt  Paving  Co.  181  U.  S.  324,  45  L. 
ed.  879,  21  Sup.  Ct  Rep.  625,  158  Mo. 
534,  54  L.RJL  492,  58  S.  W.  934;  Tona- 
wanda  v.  Lyon,  181  U.  S.  389,  45  L.  ed. 
908,  21  Sup.  Ct.  Rep.  609;  Webster  v.  Fargo, 
181  U.  a  394,  45  L.  ed.  912,  21  Sup.  Ct 
Rep.  623;  Cass  Farm  Co.  v.  Detroit  181 
U.  S.  396,  45  U  ed.  914,  21  Sup.  Ct  Rep. 
644;  Detroit  v.  Parker,  181  U.  S.  399,  45 
L.  ed.  917,  21  Sup.  Ct  Rep.  624;  Shumate 
v.  Heman,  181  U.  S.  402,  45  L.  ed.  922,  21 
Sup.  Ct.  Rep.  645;  Wormley  v.  District  of 
Columbia,  181  U.  S  402,  45  L.  ed.  921, 
21  Sup.  Ct  Rep.  609;  Williams  v.  Eggles- 
ton, 170  U.  S.  304,  42  L.  ed.  1047,  18  Sup. 
Ct  Rep.  617;  Hemsn  v.  Allen,  156  Mo.  534, 
57  S.  W.  550;  Keith  v.  Bingham,  100  Mo. 
300,  13  S.  W.  683;  Smith  v.  Worcester,  182 
Mass.  232,  59  L.R.A.  728, 65  N.  E.  40;  Heman 
V.  Gilliam,  171  Mo.  264,  71  S.  W.  163;  St. 
Charles  ex  rel.  Budd  v.  Deemar,  174  Mo. 
122,  73  S.  W.  469;  Meier  v.  St  Louis,  180 
Mo.  408,  79  a  W.  955;  Ross  v.  Gates,  183 
Mo.  347,  81  S.  W.  1107;  Barber  Asphalt 
Paving  Co.  v.  Munn,  185  Mo.  565,  83  S.  W. 
1062;  People  ex  rel.  Scott  v.  Pitt>  169  K. 
Y.  521,  58  LJRJ^.  372,  62  N.  E.  662;  Arnold 
V.  Knoxville,  115  Tenn.  210,  3  LJLA.(N.S.) 
837,  90  a  W.  469,  5  Ann.  Cas.  881;  Cooley, 
Taxn.  1st  ed.  pp.  36-40;  Prior  v.  Buehler 
&  C.  Constr.  Co.  170  Mo.  439,  71  S.  W. 
205;  Gilsonite  Roofing  Co.  v.  St  Louis  Fair 
Asso.  231  Mo.  589,  132  S.  W.  657;  Ross  v. 
Wright  County,  128  Iowa,  427,  1  LJI.A. 
(N.S.)  437, 104  N.  W.  506;  Page  k  J.  Taxn. 
§1  123,  728;  Fruin-Bambrick  Constr.  Co.  v. 

26t 


SUPREME  CX)UItT  OF  THE  UNITED  STATES. 


Cor. 


St.  Louis  Shovel  Co.  211  Mo.  632,  111  S. 
W.  86. 

The  constitutional  provision  prohibiting 
the  taking  of  private  property  for  public 
use  without  compensation  is  a  limitation  of 
the  exercise  by  the  state  of  the  right  of 
eminent  domain,  and  not  a  limitation  on 
the  taxing  power  of  the  state. 

Little  Tarkio  Ihrainage  Dist.  y.  Richard- 
son, 237  Mo.  71,  139  S.  W.  576;  Keith  t. 
Bingham,  100  Mo.  306,  13  S.  W.  683;  He- 
man  V.  Schulte,  166  Mo.  409,  66  S.  W.  163; 
St.  Louis  V.  Buss,  159  Mo.  12,  59  S.  W. 
969;  Dill.  Mun.  Corp.  3d  ed.  §  738;  25 
Am.  &  Eng.  Enc.  Law  pp.  18-20;  Page  & 
J.  Taxn.  §  110. 

It  is  the  settled  law  in  Missouri  that 
special  assessments  for  local  improvements 
are  referable  to  the  taxing  power  of  the 
state. 

Fruin-Bambrick  Constr.  Co.  v.  St.  Louis 
Shovel  Co.  211  Mo.  531,  111  S.  W.  86;  Bar- 
ber Asphalt  Paving  Co.  t.  French,  158  Mo. 
534,  54  L.R.A.  492,  58  S.  W.  934,  181  U. 
S.  324,  339,  45  L.  ed.  879,  887,  21  Sup.  Ct. 
Rep.  625;  St.  Joseph  use  of  Gibson  t.  Far- 
rell,  106  Mo.  437,  17  S.  W.  497;  Spencer  v. 
Merchant,  125  U.  S.  345,  31  L.  ed.  763,  8 
Sup.  Ct.  Rep.  921;  Cooley,  Taxn.  Ist  ed. 
pp.  430,  431. 

The  legislative  determination  of  the  bene- 
fits derived,  or  the  necessity  and  advisabil- 
ity of  a  local  assessment,  is  conclusive  and 
final,  and  is  not  subject  to  judicial  review. 

French  v.  Barber  Asphalt  Paving  Co.  181 
U.  S.  324,  338,  339,  45  L.  ed.  879,  887,  888, 
21  Sup.  Ct.  Rep.  625,  158  Mo.  534,  54 
L.RJ^.  492,  58  S.  W.  934;  Hagar  v.  Recla- 
mation Dist.  Ill  U.  S.  701,  28  L.  ed.  569, 
4  Sup.  Ct.  Rep.  663;  Chadwick  v.  Kelley, 
187  U.  S.  540,  47  L.  ed.  293,  23  Sup.  Ct. 
Rep.  175;  Louisville  &  N.  R.  Co.  v.  Barber 
Asphalt  Paving  Co.  197  U;  S.  430,  49  L.  ed. 
819,  25  Sup.  Ct.  Rep.  466;  Fallbrook  Irrig. 
Dist.  y.  Bradley,  164  U.  S.  112,  41  L.  ed. 
.369,  17  Sup.  Ct.  Rep.  56;  Spencer  v. 
Merchant,  125  U.  S.  345,  31  L.  ed.  763,  8 
Sup.  Ct.  Rep.  921;  Prior  v.  Buehler  &  C. 
Constr.  Co.  170  Mo.  451,  71  S.  W.  205; 
Egyptian  Levee  Co.  v.  Hardin,  27  Mo.  495, 
72  Am.  Dec.  276;  St.  Joseph  y.  O'Donoghue, 
31  Mo.  345;  Meier  v.  St.  Louis,  180  Mo. 
391,  79  S.  W.  955;  People  ex  rel.  Griffin  v. 
Brooklyn,  4  N.  Y.  419,  55  Am.  Dec.  266; 
Northern  P.  K.  Co.  y.  Seattle,  46  Wash. 
674,  12  L.R.A.(N.S.)  121,  123  Am.  St. 
Rep.  955,  91  Pac.  244 ;  Smith  v.  Worcester, 
182  Mass.  232,  59  L.RA..  728,  65  N.  E. 
40;  Spencer  v.  Merchant,  100  N.  Y.  585,  3 
N.  E.  682;  Webster  v.  Fargo,  181  U.  S. 
394,  46  L.  ed.  912,  21  Sup.  Ct  Rep.  623; 
Cooley,  Taxn.  1st  ed.  p.  446. 

A  legislative  finding  of  benefits  will  be 
presumed  after  an  assessment  has  been  au- 

J970 


thorized.  jAoth  courts  and  legislature  tak» 
notice  of  the  topography  of  the  state,  and 
that  wet,  swampy,  and  overfiowed  land* 
will  be  rendered  more  habitable  and  pro- 
ductive, and  that  the  public  health  will  be 
benefited,  by  removing  water  which  causes 
unhealthy  conditions. 

Hagar  y.  Reclamation  Dist.  Ill  U.  8. 
701,  28  L.  ed.  569,  4  Sup.  Ct.  Rep.  663; 
Fallbrook  Irrig.  Dist.  y.  Bradley,  164  U. 
S.  112,  41  L.  ed.  369,  17  Sup.  Ct  Rep.  56 ; 
French  v.  Barber  Asphalt  Paving  Co.  181 
U.  S.  324,  45  L.  ed.  879,  21  Sup.  Ct.  Rep. 
625;  Chicago,  B.  k  Q.  R.  Co.  v.  Illinois,  200 
U.  S.  561,  50  L.  ed.  596,  26  Sup.  Ct.  Rep. 
341,  4  Ann.  Cas.  1175;  Little  River  Drain- 
age Dist.  v.  St  Louis,  M.  &  S.  £.  R.  Co.  236 
Mo.  Ill,  139  S.  W.  330;  Louisville  ft  N. 
R.  Co.  V.  Barber  Asphalt  Paving  Co.  107  U. 
S.  430,  432,  49  L.  ed.  819,  821,  25  Sup.  Ct. 
Rep.  466;  Mound  City  Land  &  Stock  Co.  y. 
Miller,  170  Mo.  240,  60  L.R.A.  190,  94  Am. 
St  Rep.  727,  70  S.  W.  721 ;  Fruin-Bambrick 
Constr.  Co.  v.  St.  Louis  Shovel  Co.  211  Mo. 
524.  Ill  S.  W.  86;  Prior  v.  Buehler  &  C. 
Constr.  Co.  170  Mo.  439,  71  S.  W.  205;  Meier 
V.  St  Louis,  180  Mo.  301,  79  S.  W.  0.56; 
Northern  P.  R,  Co.  v.  Pierce  County,  61 
Wash.  12,  23  L.R.A.(N.S.)  286, 97  Pac.  1000; 
State  ex  rel.  Utick  v.  Polk  County,  87  Minn. 
325,  60  L.R.A.  161,  02  N.  W.  216;  Smith 
y.  Worcester,  182  Mass.  232,  50  L.R.A.  728» 
66  N.  E.  40;  Cooley,  Taxn.  1st  ed.  pp.  4.30, 
450. 

The  act  of  the  legislature  in  levying  as- 
sessments for  a  definite  sum  against  each 
lot  or  acre  of  land  for  special  improvementa 
is  conclusive  alike  of  the  necessity  of  the 
work  and  of  its  benefits  to  the  property  as- 
sessed; and  the  l^islature,  in  so  doing,  is 
not  compelled  to  give  notice  to  the  parties 
resident  within  the  district,  or  to  give  a 
hearing  before  itself  or  one  of  its  commit- 
tees, or  any  other  tribunal,  on  the  question 
of  whether  the  property  so  included  within 
the  district  is  in  fact  benefited. 

Hagar  v.  Reclamation  Dist.  Ill  U.  S. 
701,  28  L.  ed.  560,  4  Sup.  Ct  Rep.  663; 
Parsons  v.  District  of  Columbia,  170  U.  8. 
46,  42  L.  ed.  043,  18  Sup.  Ct  Rep.  521; 
Goodrich  v.  Detroit,  184  U.  S.  432,  46  L. 
ed.  627,  22  Sup.  Ct.  Rep.  307;  Chadwick  y. 
Kelley,  187  U.  S.  540,  546,  47  L.  ed.  203, 
205,  23  Sup.  Ct.  Rep.  175;  Louisville  &  N. 
R.  Co.  v.  Barber  Asphalt  Paving  Co.  107. 
U.  6.  430,  40  L.  ed.  810,  25  Sup.  Ct.  Rep. 
466;  Williams  v.  £;ggleston,  170  U.  S.  304» 
42  L.  ed.  1047,  18  Sup.  Ct  Rep.  617; 
Davidson  v.  New  Orleans,  06  U.  S.  07,  24 
L.  ed.  616;  Cooley,  Taxn.  2d  ed.  p.  140; 
Hanunett  v.  Philadelphia,  65  Pa.  155,  3 
Am.  Rep.  615 ;  State  v.  Robert  P.  Lewis  Co. 
(Ramsey  County  v,  Robert  P.  Lewis  Co.) 
82  Minn.  400,  53  L.RJ1.  421,  85  N.  W.  207» 

2S0  U.  S. 


1915. 


HOUCK  ▼.  UTILE  RIVER  DRAINAGE  DIST. 


86  N.  W.  611;  Jones  k  P.  Taxn.  §§  123, 
728. 

Questiont  not  clearly  raised  in  the  court 
below  will  not  be  considered  in  this  coiurt, 
tad  an  assignment  of  errors  cannot  be 
STaiied  of  to  import  questions  into  this 
ease  which  are  not  shown  by  the  record  to 
have  been  raised  and  passed  on  below. 

Cleveland  &  P.  R.  Ck>.  y.  Cleveland,  236 
U.  S.  50,  50  L.  ed.  127»  36  Sup.  Ct  Rep. 
21;  Ansbro  v.  United  States,  150  U.  S. 
m,  40  L.  ed.  310,  16  Sup.  Ct.  Rep.  187 ; 
F.  G.  Oxley  Stave  Co.  t.  Butler  County, 
166  U.  S.  648,  653,  41  L.  ed.  1140,  17  Sup. 
a  Rep.  700;  Henkel  t.  Cincinnati,  177 
U.  8.  171,  44  L.  ed.  721,  20  Sup.  Ct.  Rep. 
573;  Chicago,  I.  &  L.  R.  Co.  y.^MeGuire^ 
IM  U.  S.  128,  40  L.  ed.  413,  25  Sup.  Ct. 
Sep.  200;  Zadig  y.  Baldwin,  166  U.  S.  485, 
488,  41  L.  ed.  1087,  1088,  17  Sup.  Ct.  Rep. 
639;  Keokuk  &  H.  Bridge  Co.  y.  Illinois, 
175  U.  S.  626,  633,  44  L.  ed.  200,  302,  20 
Sap.  Ct.  Rep.  205;  Harding  v.  Illinois,  106 
U.  8.  78,  40  L.  ed.  304,  26  Sup.  Ct.  Rep. 
176;  Chesapeake  &  O.  R.  Co.  y.  McDonald, 
214  U.  S.  101,  53  L.  ed.  063,  20  Sup.  Ct. 
Bep.  546;  Cornell  y.  Green,  163  U.  S.  75, 
80,  41  L.  ed.  76,  78,  16  Sup.  Ct.  Rep.  060; 
Mtzwell  y.  Newbold,  18  How.  511,  15  L. 
€d.  606;  Marvin  v.  Trout,  100  U.  S.  212,  50 
L  ed.  157,  26  Sup.  Ct.  Rep.  31;  Pim  v.  St. 
Lonis,  165  U.  S.  273,  41  L.  ed.  714,  17  Sup. 
Ct  Rep.  322 ;  Fullerton  v.  Texas,  106  U.  S. 
192,  49  L.  ed.  443,  25  Sup.  Ct.  Rep.  221; 
Loeber  y.  Schroeder,  140  U.  S.  580,  37  I*, 
ed.  856,  13  Sup.  Ct.  Rep.  934. 

There  is  no  contract  between  the  state 
ind  the  individual  of  the  state  with  respect 
to  the  taxing  power  of  the  state.  The  im- 
position of  a  tax  or  an  assessment  is  a  gov- 
ernmental act  to  which  the  contract  clause 
of  the  Constitution  of  the  United  States 
has  no  application. 

Cape  Girardeau  County  Ct.  y.  Hill  (Coun- 
ty a.  V.  United  States)  118  U.  S.  68,  72, 
30  L.  ed.  73,  75,  6  Sup.  Ct.  Rep.  051; 
Cooley,  Taxn.  let  ed.  pp.  13,  484;  Page  & 
J.  Taxn.  §  166;  Gray,  Limitations  of  Taxing 
Power,  §  1830;  Burroughs,  Taxn.  §  105,  p. 
263;  State  ex  rel.  Hayes  v.  Snyder,  130  Mo. 
663.  41  S.  W.  216. 

The  creation  of  a  public  corporation  by 
the  state  creates  no  contract  between  the 
state  and  the  corporation;  nor  between 
the  state  and  the  individual  members  of  the 
corporation ;  nor  between  the  members  them- 
■elves.  A  contract  within  the  meaning  of 
I  10,  art.  1,  of  the  Constitution  of  the  Unit- 
ed States,  is  one  based  on  mutual  assent  and 
consideration. 

Hunter  v.  Pittsburgh,  207  U.  S.  161,  62 
L.  ed.  151,  28  Sup.  Ct.  Rep.  40;  Morley  v. 
Lake  Shore  &,  M.  S.  R.  Co.  146  U.  S.  1<&2, 
M  L.  ed.  925,  13  Sup.  Ct  Rep.  64;  Looisi- 
•O  Ii.  ed. 


ana  ex  rel.  Folsom  y.  New  Orleans,  100  U. 
S.  285,  20  L.  ed.  036,  3  Sup.  Ct.  Rep.  211; 
Louisiana  y.  Pilsbury,  105  U.  S.  286,  26 
Lb  ed.  1003;  Columbia  Bottom  Levee  Co.  y. 
Meier,  30  Mo.  53;  Gray,  Const.  Lim.  $  068; 
Sedgw.  Stat.  &  Const.  Law,  2d  ed.  pp.  581, 
599,  600,  603. 

A  legislative  act  changing  or  altering  the 
character  of  a  public  corporation  is  not 
an  impairment  of  a  contract,  either  as  to 
the  corporation  or  its  constituent  members. 

Hunter  v.  Pittsburgh,  207  U.  S.  161,  62 
L.  ed.  151,  28  Sup.  Ct.  Rep.  40;  East  Hart- 
ford V.  Hartford  Bridge  Co.  10  How.  511, 
535,  538, 13  L.  ed.  518,  528,  620 ;  Williamson 
v.  New  Jersey,  130  U.  S.  180,  200,  32  L.  ed. 
916,  919,  9  Sup.  Ct.  Rep.  453;  Cape  Gi- 
rardeau Coimty  Ct.  y.  Hill  (County  Ct.  v. 
United  States)  118  U.  S.  68,  72,  30  L.  ed. 
73,  75,  6  Sup.  Ct«  Rep.  051;  Squaw  Creek 
Drainage  Dist.  v.  Tumey,  235  Mo.  80,  138 
S.  W.  12 ;  State  ex  rel.  Compton  v.  Charlton 
Drainage  Dist.  102  Mo.  520,  90  S.  W.  722. 

The  incorporation  of  the  Little  River 
Drainage  District,  and  the  imposition  of 
obligations  upon  the  land  included  therein 
to  bear  its  proportionate  share  of  burdens 
imposed,  were  contemporaneous.  The  legis- 
lature by  this  section  only  fixed  the  max- 
imum amount  of  the  assessment  authorized 
by  it,  and  apportioned  it  uniformly  upon 
each  acre  in  the  drainage  district. 

State  ex  rel.  Mc Williams  v.  Bates,  235 
Mo.  262,  138  S.  W.  482 ;  Northern  P.  R,  Co. 
V.  Pierce  County,  51  Wash.  12,  23  L.R.A. 
(N.8.)  286,  07  Pac.  1099;  French  v.  Barber 
Asphalt  Paving  Co.  181  U.  S.  324,  332,  333, 
338,  45  L.  ed.  879,  885-887,  21  Sup.  a. 
Rep.  625. 

The  legislature,  in  enacting  §  5538,  ex- 
pressly authorized  the  board  of  supervisors 
of  the  drainage  district  to  levy  an  assess- 
ment of  not  to  exceed  25  cents  per  acre  on 
all  lands  in  the  district,  to  pay  for  the  or- 
ganization and  the  preliminary  surveys; 
hence,  plaintiffs*  lands,  like  all  other  lands 
in  the  district,  are  subject  to  this  assess- 
ment. 

St.  Louis  V.  United  R.  Co.  210  U.  S.  266, 
52  L.  ed.  1054,  28  Sup.  Ct.  Rep.  630;  Sedgw. 
Stat.  &  Const.  Law,  2d  ed.  p.  599. 

No  one  can  have  a  vested  right  which  he 
can  claim  to  be  exempt  from  the  lawful 
exercise  of  the  state's  police  power. 

Mugler  y.  Kansas,  123  U.  S.  656,  659, 
31  L.  ed.  200,  210,  8  Sup.  Ct.  Rep.  273; 
Butchers'  Union  S.  H.  &  L.  S.  L.  Co.  v. 
Crescent  City  L.  S.  L.  &  S.  H.  Co.  Ill  U. 
S.  746,  753,  28  L.  ed.  585,  587,  4  Sup.  Ct. 
Rep.  652;  Chicago,  B.  &  Q.  R.  Co.  y.  Illinois, 
200  U.  S.  561,  50  L.  ed.  506,  26  Sup.  Ct. 
Rep.  341,  4  Ann.  Cas.  1175;  Little  River 
Drainage  Dist.  v.  St.  Louis,  M.  ft  S.  £.  R. 
Co.  236  Mo.  94,  130  S.  W.  330. 

%1\ 


250,  260 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tdm, 


Mo.  Rev.  Stat.  1009,  §  5538,  does  not 
abridge  the  privileges  and  immunities  of 
citizens  of  the  United  States. 

Slau^ter-House  Cases,  16  Wall.  36,  21 
L.  ed.  304;  Rosenthal  v.  New  York,  226 
U.  S.  260,  57  L.  ed.  212,  33  Sup.  Ct.  Rep.  27, 
Ann.  Cas.  1014B,  71;  Bell's  Gap  R.  Co.  t. 
Pennsylvania,  134  U.  S.  232,  33  L.  ed.  802, 
10  Sup.  Ct.  Rep.  533;  Lombard  v.  West 
Chicago  Park  Comrs.  181  U.  S.  33,  45  L. 
ed.  731,  21  Sup.  Ct.  Rep.  507;  Davidson  v. 
New  Orleans,  06  U.  S.  07,  104,  24  L.  ed. 
616,  610. 

This  section  does  not  deny  the  equal  pro- 
tection of  the  laws. 

Atkin  T.  Kansas,  101  U.  S.  207,  48  L. 
ed.  148,  24  Sup.  Ct.  Rep.  124;  Slaughter- 
House  Cases,  16  Wall.  36,  21  L.  ed.  304; 
Bell's  Gap  R.  Co.  v.  Pennsylvania,  134  U. 
S.  232,  33  L.  ed.  802,  10  Sup.  Ct.  Rep.  533; 
Lombard  v.  West  Chicago  Park  Comrs.  181 
U.  S.  33,  45  L.  ed.  731,  21  Sup.  Ct.  Rep. 
507;  Davidson  v.  New  Orleans,  96  U.  S. 
97,  104,  24  L.  ed.  616,  610. 

Nor  does  this  section  deprive  any  person 
of  his  property  without  due  process  of 
law,  or  take  private  property  for  public  use 
without  compensation. 

Davidson  v.  New  Orleans,  06  U.  S.  97, 
24  L.  ed.  616;  Merchants'  &  M.  Nat.  Bank 
V.  Pennsylvania,  167  U.  S.  461,  42  L.  ed. 
236,  17  Sup.  Ct.  Rep.  829;  Den  ex  dem 
Murray  v.  Hoboken  Land  &  Improv.  Co. 
18  How.  272,  15  L.  ed.  372;  Bell's  Gap  R. 
Co.  V.  Pennsylvania,  134  U.  S.  232,  83  L. 
ed.  802,  10  Sup.  Ct.  Rep.  533. 

Should  any  doubt  arise  about  the  consti- 
tutionality of  this  section  of  the  Missouri 
statute,  the  doubt  should  be  resolved  in 
favor  of  the  state. 

State  ex  rel.  McWilliams  v.  Bates,  235 
Mo.  203,  138  S.  W.  482;  State  ex  rel.  Mar- 
shall V.  Bugg,  224  Mo.  554,  123  S.  W.  827. 

The  police  power  of  a  state  embraces  reg- 
ulations designed  to  promote  public  con- 
venience, public  health,  public  morals,  and 
public  safety.  Any  law  providing  for  the 
reclamation  of  swamp  lands  is  an  exercise 
of  the  police  power  of  the  state,  and  not 
prohibited  by  the  14th  Amendment  to  the 
Constitution  of  the  United  States. 

Chicago,  B.  &  Q.  R.  Co.  v.  Illinois,  200 
U.  S.  561,  50  L.  ed.  506,  26  Sup.  Ct.  Rep. 
341,  4  Ann.  Cas.  1175;  Little  River  Drain- 
age Dist.  V.  St.  Louis,  M.  k  S.  E.  R.  Co. 
236  Mo.  94,  139  S.  W.  330. 

Mr.  Justice  Hughes  delivered  the  opinion 
of  the  court: 

The  plaintiffs  in  error,  owners  of  several 
thousand  acres  embraced  within  the  Little 
River  Drainage  District,  of  Missouri, 
brought  this  suit  to  restrain  the  collection 
of  a  tax  of  25  cents  per  acre  levied  gen- 
972 


erally  upon  the  lands  within  the  district  for 
the  purpose  of  paying  its  preliminary  ex- 
penses. The  district  was  organized  in  1907 
under  the  provisions  of  article  3,  chapter 
122,  Revised  Statutes  of  Missouri,  1899,  as 
amended  by  the  act  of  April  8,  1906.  Its 
board  of  supervisors  appointed  engineers 
who  made  surveys  and  recommended  a  plan 
of  drainage.  Upon  the  adoption  of  this 
plan,  in  November,  1909,  commissioners 
were  appointed  for  the  purpose  of  viewing 
the  tracts  within  the  district  and  assessing 
benefits  and  damages.  Pending  the  proceed- 
ings of  these  commissioners,  the  tax  in  ques- 
tion was  levied  under  the  act  of  June  1, 
1900,  now  §  5538  of  the  Revised  Statutes  of 
Missouri,' 1000,  which  provides  as  follows: 

"Sec.  5538.  Levy  of  25  cents  per  acre 
may  be  made  for  preliminary  work. — ^As 
soon  as  any  drainage  district  shall  have 
been  organized  under  order  of  the  circuit 
court,  and  a  board  of  supervisors  are  elected 
and  qualified,  such  board  of  supervisors  shall 
have  the  pow^  [260]  and  authority  to 
levy  upon  each  acre  of  land  in  the  district^ 
not  to  exceed  25  cents  per  acre,  as  a  level 
rate,  to  be  used  for  purpose  of  paying  ex- 
penses of  organization,  for  topographical 
and  other  surveys,  for  plans  of  drainage,  for 
expenses  of  assessing  benefits  and  damages 
and  other  incidental  expenses  which  may  be 
necessary,  before  entering  upon  the  main 
work  of  drainage.  Any  district  which  may 
have  proceeded  without  such  levy  may,  if  in 
the  opinion  of  its  board  of  supervisors  it  be 
desirable  to  do  so>  make  such  level  assess- 
ment for  such  purpose,  and  if  such  items  of 
expense  have  already  been  paid  in  whole  or 
in  pari  from  other  sources,  the  surplus 
shall  be  paid  into  the  general  fund  of  the 
district,  and  such  levy  may  be  made  al- 
though the  work  proposed  may  have  failed 
or  have  been  found  impractical." 

The  amended  petition  averred  in  sub- 
stance that  as  to  the  plaintiffs  all  the  pro- 
ceedings had  been  In  invitum ;  that  the  lands 
in  the  district  varied  in  value;  that  no 
benefits  had  accrued  or  would  accrue  to 
the  plaintiffs'  lands  either  from  the  expen- 
diture of  the  moneys  sought  to  be  raised 
by  the  tax,  or  from  the  carrying  out  of  the 
proposed  plan;  that  a  large  portion  of  the 
lands  in  the  district  and  those  of  the  plain- 
tiffs in  large  part,  were  to  be  condemned 
for  a  right  of  way  for  ditches  and  catch 
basins;  and  that  the  tax  had  been  levied 
against  every  acre  within  the  district,  as 
a  level  tax,  without  regard  either  to  relative 
value  or  to  benefits,  or  to  the  fact  that 
portions  of  the  lands  would  be  damaged 
and  other  portions  would  be  taken  by  con- 
demnation, or  that  a  large  extent  of  terri- 
tory, if  added  to  the  district,  as  had  been 
proposed,  would  receive  the  benefit  vof  the 

289  17.  6. 


1015. 


HOUCK  y.  LITTLE  RIVER  DRAINAGE  DIST. 


260-263 


tax  without  being  charged  with  any  part,  i  Mo.  240,  60  L.RJk.  190,  04  Am.  St.  Rep.  727, 
The  levy  of  the  tax,  and  the  act  authorizing    70  8.  W.  721 ;   State  ex  rcL  Applcgate  ▼. 


it»  were  assailed  as  being  contrary  to  the 
Constitution  of  the  state  of  Missouri,  and 
also  to  tlie  provision  of  the  14th  Amendment 
prohibiting  deprivation  of  property  without 
due  process  of  law. 

[261]  Upon  demurrer  to  the  petition,  the 
parties  stipulated  that  the  sole  question  to 
be  determined  was  whether  §  5538  (supra) 
was  constitutional  The  trial  court  held 
it  to  be  valid  and  dismissed  the  petition. 
After  affirmance  in  the  supreme  court  of 
Missouri,  division  one,  the  cause  was  trans- 
ferred (in  view  of  the  Federal  question)  to 
the  court  in  banc,  where  the  judgment  was 
finally  affirmed,  the  opinion  of  divieion  one 
being  adopted.    248  Mo.  373,  154  S.  W.  730. 

In  considering  the  contention  thus  pre- 
sented under  the  14th  Amendment,  it  must 
be  taken  to  be  established  that  the  district 
had  been  organized  validly  for  a  public 
purpose.  It  had  been  incorporated  pursuant 
to  the  judgmoit  of  the  circuit  court,  as 
in  the  act  provided,  and  this  judgment  had 
been  affirmed  upon  appeaL  Little  River 
Drainage  Dist.  v.  St.  Louis,  M.  k  S.  E.  R. 
Co.  236  Mo.  04,  139  S.  W.  330.  In  the 
opinion  of  the  court  in  that  proceeding,  the 
tracts  were  described  as  forming  "a  con- 
tiguous body  of  land  from  1  to  11  miles  in 
width,  extending  in  a  southerly  direction 
for  a  distance  of  about  00  miles  from  Cape 
Girardeau  on  the  north,  to  the  boundary 
line  between  Missouri  and  Arkansas. 
Streams  and  water  courses  heading  in  the 
higher  adjacent  territory  carry  their  waters 
to  these  low  lands,  where,  because  of  in- 
sufficient channels,  the  waters  overflow  and 
render  much  of  the  land  uncultivable  and 
uninhabitable."  Id.  p.  103.  The  district  is, 
indeed,  a  conspicuous  illustration  of  the 
class  of  enterprises  which  have  been  author- 
ized in  order  to  secure  the  recognized  public 
advantages  which  will  accrue  from  reclaim- 
ing and  opening  to  cultivation  large  areas 
of  swamp  or  overflowed  landfl.  Egyptian 
Levee  Co.  v.  Hardin,  27  Mo.  405,  72  Am. 
Rep.  27G;  Columbia  Bottom  Levee  Co.  v. 
Meier,  39  Mo.  53;  Morrison  v.  Morey,  146 
Mo.  543,  48  S.  W.  620 ;  State  ex  rcl.  Comp- 
ton  V.  Chariton  Drainage  Dist.  192  Mo. 
517,  90  S.  VV.  722;  Mound  City  Land  & 
Stock  Co.  V.  Miller,  170  Mo.  240,  00  L.R.A. 
100,  04  Am.  St.  Rep.  727,  70  S.  W.  721; 
State  ex  rel.  Applegnte  v.  Taylor,  224  Mo. 
303,  123  S.  W.  802;  Squaw  Creek  Drainage 
Dist.  V.  Turney,  235  Mo.  80,  138  S.  W.  12; 
Little  River  Drainage  Dist.  v.  St.  Louis,  M. 
&  S,  E.  R.  Co.  236  Mo.  94.  139  S.  W.  3.30.  It 
[262]  was  constituted  a  political  subdivi- 
sion of  the  state  for  the  purpose  of  perform- 
ing prescribed  functions  of  government. 
Mound  City  Land  &  Stock  Co.  y.  Miller,  170 
«0  Ii.  ed.  18 


Taylor,  224  Mo.  393,  123  S.  W.  892.  These 
drainage  districts,  as  the  supreme  court  of 
the  state  has  said,  exercise  the  granted  pow- 
ers within  their  territorial  jurisdiction  "as 
fully,  and  by  the  same  authority,  as  the  mu- 
nicipal corporations  of  the  state  exercise 
the  powers  vested  by  their  charters."  248 
Mo.  p.  383. 

In  view  of  the  nature  of  this  enterprise 
it  is  obvious  that,  so  far  as  the  Federal  Con- 
stitution is  concerned,  the  state  might  have 
defrayed  the  entire  expense  out  of  state 
funds  raised  by  general  taxation,  or  it  could 
have  apportioned  the  burden  among  the 
counties  in  which  the  lands  were  situated 
and  the  improvements  were  to  be  made. 
Mobile  County  v.  Kimball,  102  U.  S.  691, 
703,  704,  26  L.  ed.  238,  241,  242.  It  was 
equally  witliin  the  power  of  the  state  to 
create  tax  districts  to  meet  the  authorized 
outlays.  The  legislature,  unless  restricted 
by  the  state  (Ik>nstitution,  can  create  such 
districts  directly,  or,  as  in  this  case,  it 
may  provide  for  their  institution  through 
a  proceeding  in  the  courts  in  which  the 
parties  interested  are  cited  to  appear  and 
present  their  objections,  if  any.  The  pro- 
priety of  a  delegation  of  this  sort  was  a 
question  for  the  state  alone.  And  with  re- 
spect to  districts  thus  formed,  whether  by 
the  legislature  directly  or  in  an  appropriate 
proceeding  under  its  authority,  the  legis- 
lature may  itself  fix  the  basis  of  taxation 
or  assessment;  that  is,  it  may  define  the 
apportionment  of  the  burden,  and  its  action 
cannot  be  assailed  under  the  14th  Amend- 
ment unless  it  is  palpably  arbitrary  and  a 
plain  abuse.  These  principles  have  been 
established  by  repeated  decisions.  Hagar  v. 
Reclamation  Dist.  Ill  U.  S.  701,  709.  28 
L.  ed.  569,  572,  4  Sup.  Ct  Rep.  663;  Spencer 
V.  Merchant,  125  U.  S.  345.  353,  356,  31  L. 
ed.  763,  706.  707,  8  Sup.  Ct.  Rep.  921; 
Fallbrook  Irrig.  Dist.  v.  Bradley,  164  U.  S. 
112,  167,  168,  41  L.  ed.  369,  391,  392,  17 
Sup.  Ct.  Rep.  56;  Bauman  v.  Ross,  167  U. 
S.  548,  590,  42  L.  ed.  270,  288,  17  Sup.  Ct 
Rep.  966;  Parsons  v.  District  of  Columbia, 
170  U.  S.  45,  52,  42  L.  ed.  943,  946,  8  Sup. 
Ct.  Rep.  5^1 ;  Williams  v.  [263]  Eggleston, 
170  U.  S.  304,  311,  42  L.  ed.  1047,  1049,  18 
Sup.  Ct.  Rep.  617;  Norwood  v.  Baker,  172 
U.  S.  269,  278,  43  L.  ed.  443,  447, 19  Sup.  Ct. 
Rep.  187;  French  v.  Barber  Asphalt  Paving 
Co.  181  U.  S.  324,  343,  45  L.  ed.  879,  889, 
21  Sup.  Ct.  Rep.  625;  Wight  v.  Davidson, 
181  U.  S.  371,  379,  45  L.  ed.  900,  904,  21 
Sup.  Ct.  Rep.  016;  Wagner  v.  Leser,  de- 
cided this  day  [239  U.  S.  207,  ante,  230,  36 
Sup.  Ct.  Rep.  66]. 

The  legislature,  in  this  instance,  fixed  the 
object  and  character  of  the  tax,  and  pre- 

278 


263-266 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbuc 


scribed  the  maximum  rate.  The  authoritj 
to  levy  the  tax  for  preliminary  expenses  waa 
to  follow  upon  the  organization  of  the  dis- 
trict. The  plaintiffs  in  error  urge  that  the 
determination  at  the  time  the  district  was 
organized  waa  merely  preliminary  and  ten- 
tative with  respect  to  the  lands  to  be  in- 
cluded, and  that  assessments  acoording  to 
ascertained  benefits  for  the  purpose  of 
meeting  the  cost  of  works  and  im- 
provements are  reserved  for  subsequent 
proceedings,  upon  notice,  after  surveys 
have  been  made  and  the  plan  of  drain- 
age has  been  definitely  adopted.  See 
Rev.  Stat.  (Mo.)  §§  6511  to  5519.  It  is 
true  that  the  elaborate  inquiry  which  is  to 
follow  the  organization  of  the  district  may 
show  the  advisability  of  bringing  in  other 
lands  (Squaw  Creek  Drainage  Dist.  v. 
Tumey,  235  Mo.  80,  138  S.  W.  12),  and  the 
statute  undoubtedly  does  postpone  the  as- 
sessment of  the  cost  of  works  and  improve- 
ments until  the  plan  of  drainage  has  been 
decided  upon  and  benefits  have  been  de- 
termined accordingly.  But  none  the  less  the 
organization  of  the  district  takes  effect 
when  it  is  duly  constituted  by  the  judgment 
of  the  court.  The  owners  whose  lands  are 
embraced  in  the  district  as  proposed,  and 
who  have  not  signed  the  articles,  are  sum- 
moned and  their  objiK^ions  to  the  organiza- 
tion and  to  the  inclusion  of  their  lands  are 
heard.  As  a  public  corporation,  with  defined 
membership,  the  district,  when  established, 
is  empowered  to  go  forward  with  the  expert 
investigations  and  surveys  which,  of  neces- 
sity, must  precede  the  adoption  of  a  com- 
plete scheme.  The  outcome  of  these  studies 
cannot  be  absolutely  predicted;  they  may 
even  result  in  the  abandonment  of  the 
project.  But  probable  feasibility  has  been 
shown,  and  the  district,  in  consequence, 
[264]  organized.  The  preliminary  work 
must  then  be  done  and  its  cost  must  be  met. 
It  is  work  undertaken  by  the  district.  The 
owners  of  the  included  lands)  with  one  vote 
for  each  acre)  elect  the  district  officers  (su- 
pervisors), who  are  to  proceed  with  the  sur- 
veys, etc.,  in  the  manner  detailed.  In  the 
present  case,  the  district  was  created  upon 
an  adequate  showing  of  basis  (236  Mo.  p. 
138),  and  it  is  not  disputed  that  the  plain- 
tiffs in  error  received  the  notice  to  which 
they  were  entitled  (Rev.  Stat.  [Mo.]  1009, 
§  5497;  Laws  of  Missouri,  1005,  §  8252). 
They  were  thus  apprised  of  whatever  I^al 
consequences  attached  to  the  formation  of 
the  district  with  their  lands  in  it.  The 
present  question,  therefore,  cannot  properly 
be  regarded  as  one  of  notice.  The  imposed 
burden,  if  it  be  in  its  nature  a  lawful  one, 
is  an  incident  tp  the  organization  which 
they  had  abundant  opportunity  to  contest. 
It  is  apparent  that  when  the  district  was 
974 


duly  organized  it  had  the  same  footing  as  if 
it  had  been  created  by  the  legislature  direct- 
ly; and  if  the  legislature  could  have  estab- 
lished this  district  by  direct  act,  and  then 
constitutionally  imposed  upon  the  lands 
within  the  district  the  ratable  tax  in  ques- 
tion to  pay  the  expenses  of  organization  and 
for  preliminary  work,  it  cannot  be  doubted 
that  the  legislature  had  power  to  impose 
the  same  tax  upon  the  district  as  organized 
under  the  judgment  of  the  court. 

The  ultimate  contention,  then,  is  that  the 
plaintiffs  in  error  cannot  be  subjected  to 
this  preliminary  tax  of  25  cents  an  acre  be- 
cause their  lands,  as  they  insist,  will  not  be 
benefited  by  the  plan  of  drainage.  In 
authorizinf  the  tax,  it  is  said,  the  legis- 
lature has  departed  from  the  principle  of 
benefits,  and  the  tax  is  asserted  to  be  pro 
tanto  an  uncompensated  taking  of  their 
property  for  public  use.  But  the  power  of 
taxation  should  not  be  confused  with  the 
power  of  eminent  domain.  Each  is  governed 
by  its  own  principles.  Mobile  County  v. 
Kimball,  supra;  Bauman  v.  Ross,  167  U.S. 
548,  590,  42  L.  ed.  270,  288,  17  Sup.  Ct.  Rep. 
966;  Wight  v.  Davidson,  181  U.  S.  371,  379, 
45  L.  ed.  900,  904,  21  Sup.  Ct  Rep.  j616; 
[265]  People  ex  rel.  Griffin  ▼.  Brooklyn,  4 
N.  Y.  419,  424,  55  Am.  Dec.  266;  Cooley, 
Taxn.  p.  430;  Lewis,  Em.  Dom.  3d  ed.  §§  4, 
5.  A  tax  is  an  enforced  contribution  for  the 
payment  of  public  expenses.  It  is  laid  by 
some  rule  of  apportionment  according  to 
which  the  persons  or  property  taxed  share 
the  public  burden,  and  whether  taxation 
operates  upon  all  within  the  state,  or  upon 
those  of  a  given  class  or  locality,  its  essen- 
tial nature  is  the  same.  The  power  of  seg- 
regation for  taxing  purposes  has  every-day 
illustration  11  the  experiences  of  local  com- 
munities, the  members  of  which,  by  reason  of 
their  membership,  or  the  owners  of  property 
within  the  bounds  of  the  political  sub- 
division, are  compelled  to  bear  the  burdens 
both  of  the  successes  and  of  the  failures  of 
local  administration.  When  local  improve- 
ments may  be  deemed  to  result  in  special 
benefits,  a  further  classification  may  be 
made  and  special  assessments  imposed  ac- 
cordingly; but  even  in  such  case  there  is 
no  requirement  of  the  Federal  Constitution 
that  for  every  payment  there  must  be  aa 
equal  benefit.  The  state  in  its  discretion 
may  lay  such  assessments  in  proportion  to 
position,  frontage,  area,  market  value,  or 
to  benefits  estimated  by  commissioners. 
Davidson  v.  New  Orleans,"  96  U.  S.  97,  106, 
24  L.  ed.  616,  620;  Walston  v.  Nevin,  129 
U.  S.  578,  582,  32  L.  ed.  544,  546,  9  Sup. 
Ct.  Rep.  192;  Spencer  v.  Merchant,  125  U. 
S.  345,  858,  356,  31  L.  ed.  763,  766,  767,  S 
Sup.  Ct.  Rep.  921;  Bauman  v.  Ross,  167  U. 
S.  548,  590,  42  L.  ed.  270,  288,  17  Sup.  Ct. 

2S9  V.  6. 


1916. 


BAILEY  V.  BAKER  ICE  MACH.  00. 


265-268 


Rep.  966;  French  ▼.  Barber  Asphalt  PaTing 
Co.  181  U.  S.  324,  343,  45  L.  ed.  879,  889, 
21  Sup.  Ct.  Rep.  625;  Wight  v.  Davidfton, 
181  U.  S.  371,  379,  45  L.  ed.  900,  904,  21 
Sup.  Ct.  Rep.  616.  And,  as  we  have  said, 
unless  the  exaction  is  a  flagrant  abuse,  and 
bj  reason  of  its  arbitrary  character  is  mere 
confiscation  of  particular  property,  it  can- 
not be  maintained  that  the  state  has  ex- 
ceeded its  taxing  power.  Wagner  ▼.  Leser, 
239  U.  S.  207,  ante,  230,  36  Sup.  Ct.  Rep.  66. 
We  find  no  such  arbitrary  action  here.  It 
was  not  necessary  to  base  the  preliminary 
tax  upon  special  benefits  accruing  from  a 
completed  plan.  It  cannot  be  denied  that 
the  preliminary  work  had  peculiar  relation 
to  the  district.  The  initial  inquiry,  what- 
ever its  result,  was  for  the  purpose  of  se- 
curing the  reclamation  of  the  lands  of  which 
the  district  was  [266]  comprised.  In  this 
inquiry,  all  the  owners  were  interested. 
Whether  the  expense  of  ascertaining  the  best 
method  of  reclamation  should  subsequently 
be  reimbursed  when  final  assessments  were 
laid  according  to  benefits  ascertained  to 
result  from  the  execution  of  the  final  plan 
presenta  a  question  of  policy,  and  not  of 
power.  These  outlays  for  organization  and 
preliminary  surveys  could  well  be  consid- 
ered specially  to  concern  the  district,  as 
constituted,  as  highways  or  public  build- 
ings or  plans  for  the  same  (whether  con- 
summated or  abandoned)  could  be  said  to 
concern  counties  or  towns.  Further,  it 
would  seem  to  be  clear  that  the  state 
could  appropriately  provide  for  meeting  the 
preliminary  expense  when  it  was  in- 
curred, and  could  determine  the  man- 
ner of  apportionment  according  to  the  in- 
terests deemed  to  be  affected  as  they  ex- 
isted at  the  time.  And  in  this  view,  it  ia 
not  material  to  consider  whether  the  area  of 
the  district  might  subsequently  be  extended, 
or  what  particular  lands  within  it  would  be 
appropriated  for  ditches,  reservoirs,  etc.,  if 
a  plan  of  drainage  were  adopted  and  carried 
out.  To  say  that  the  tax  could  not  be  laid 
except  as  a  result  of  such  an  inquiry  would 
be  to  assert  in  effect  that  as  a  preliminary 
tax  it  could  not  be  laid  at  all.  We  know 
of  no  such  limitation  upon  the  state  power. 
And  assuming  that  the  lands  within  the 
district,  as  organized,  could  be  taxed  for  the 
purpose  stated,  there  was  manifestly  noth- 
ing arbitrary  in  the  fixing  of  the  prescribed 
rate  per  acre. 

It  is  further  objected  that  the  levy  of  the 
tax  amounts  to  a  deprivation  of  property 
without  due  process  of  law  because  of  the 
restrospective  character  of  the  legislation, — 
the  section  in  question  having  been  passed 
after  the  district  was  organized.  As  to  this, 
it  is  suflicient  to  say  that  the  statute  which 
was  in  force  at  the  time  of  the  formation  ol 
60  li.  ed. 


the  district  ecmtemplated  liability  to  taxa- 
tion to  defray  the  preliminary  expenses  as 
well  as  the  ultimate  cost  of  the  improve- 
ments if  made  (Laws  of  Missouri  1905,  § 
8252);  [267]  and  these  preliminary  out- 
lays must  be  regarded  as  incident  to  the 
organization  for  which  the  legislature  was 
competent  to  provide  in  the  exercise  of  its 
taxing  power.  Seattle  v.  Kelleher,  195  U. 
S.  351,  359,  49  L.  ed.  232,  235,  25  Sup.  Ct. 
Rep.  44;  Wagner  v.  Leser,  supra. 

The  plaintiffs  in  error  have  also  urged 
that  %  5538  ia  invalid  under  §  10«  article 
I.,  of  the  Federal  Constitution  upon  the 
ground  that  it  impairs  the  obligation  ol 
contract.  This  contention  was  not  present- 
ed by  the  amended  petition  and  was  not 
deemed  by  the  supreme  court  of  the  state, 
division  one,  to  be  within  the  stipulation 
upon  which  the  case  was  tried.  248  Mo. 
382,  394.  Upon  the  motion  to  transfer  the 
case  to  the  court  in  banc,  the  question  under 
the  contract  clause  was  raised,  but  the 
court  in  banc  simply  adopted  the  opinion  of 
division  one.  Ibid.  In  that  opinion,  how- 
ever, after  referring  to  the  stipulation,  the 
court  proceeded  to  observe  that  the  charter 
of  the  district,  as  a  public  corporation,  did 
not  constitute  a  contract  with  its  members 
that  the  laws  it  was  created  to  administer 
would  not  be  changed.  If  this  can  be  con- 
sidered to  be  a  decision  of  the  question,  we 
see  no  reason  to  disturb  it.  Laramie  County 
V.  Albany  County,  92  U.  S.  307,  810,  23  L. 
ed.  552,  554;  New  Orleans  v.  New  Orleans 
Water-works  Co.  142  U.  S.  79,  89,  36  L.  ed. 
943,  946,  12  Sup.  Ct.  Rep.  142;  Worcester  v. 
Worcester  Consol.  Street  R.  Co.  196  U.  S. 
539,  551,  49  L.  ed.  591,  596,  25  Sup.  Ct.  Rep. 
327 ;  Seattle  v.  Kelleher,  supra. 

Judgment  affirmed. 


[268]  J.  F.  BAILET,  Trustee  in  Bank- 
ruptcy in  the  Matter  of  Grant  Brothers, 
BsJikrupts,  Appt.| 

V. 

BAKER  ICE  MACHINE  COMPANY. 
(See  S.  C.  Reporter's  ed.  268-276.) 

Sale  —  on  condition  —  absolute  sale 
with  mortgage  back. 

1.  A  contract  of  conditional  sale,  not 
one  of  absolute  sale  with  a  chattel  mort- 
gage back  securing  the  deferred  instalments 
of  purchase  price,  is  what  the  parties  must 
have  intended  by  a  contract  governed  by 
the  Kansas  laws,  which  provides  for  the  re- 
tention in  the  vendor  of  the  title  to  the 

NoTB. — On  conditional-sale  contract  exe- 
cuted prior  to,  but  filed  within,  the  four 
months  period  as  a  voidable  preference — 
see   note   to   Big   Four   Implement   Co.   v 
Wright,  47  LJLA.(N.S.)  1223. 

975 


269 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Term, 


property  sold  until  full  payment  is  made, 

although  it  requires  the  vendee  to  keep  the 

property   insured   for  the  vendor's  benefit, 

and  in  case  of  default  in  payment  not  only 

to  return  the  property,  but  to  compensate 

the  vendor  for  its  use  and  any  damage  to  it, 

and  reserves  to  the  vendor  the  right  to  file 

a  mechanics*  lien   for  materials  and  labor 

furnished  under  the  contract. 

[For   other   cnses,   see   8ale,    I.   d,   in   Diirest 
Sup.  Ct.  1008.] 

Bankruptcy  —  preference  —  diminish- 
ing estate. 

2.  An  act  on  the  part  of  the  bankrupt 
whereby  he  surrenders  or  encumbers  his 
property  or  some  part  of  it  for  the  benefit 
of  a  particular  creditor,  and  thereby  dimin- 
ishes the  estate,  is  what  is  meant  by  the 
provisions  of  the  bankrupt  act  of  July  1, 
1808  (30  Stat,  at  I^  544,  chap.  641,  Comp. 
Stat.  1013,  §  9644) ,  §  60b,  as  amended  by  the 
act  of  June  25,  1910  (36  Stat,  at  L.  838, 
chap.  412,  Comp.  Stat.  1013,  §  9644),  which 
declares  that  a  transfer  by  a  bankrupt  of 
any  of  his  property  shall  be  voidable  by  the 
trustee  if  it  be  made  or  recorded,  when  re- 
cording is  required,  within  four  months  be- 
fore the  petition  in  bankruptcy  is  filed,  and 
the  bankrupt  is  insolvent,  and  the  transfer 
then  operates  as  a  preference. 

[For  other  cases,  see  Bankruptcy,  VI.  b,  2,  In 
Digest  Sap.  Ct.  1908.] 

Banlcruptcy  ^  i>refcrcnce  ^  conditional 
sale. 

3.  A  contract  of  conditional  sale  which 
was  not  recorded  until  after  the  conditional 
purchasers  6ad  become  insolvent  did  not 
operate  as  a  preferential  transfer  by  them, 
within  the  meaning  of  the  bankrupt  act  of 
July  1,  1898  (30  Stat,  at  L.  544,  chap.  541, 
Comp.  Stat.  191 3,  §  9044 ) ,  §  60b,  as  amended 
by  the  act  of  June  25, 1910  (36  Stat,  at  L. 
838,  chap.  412,  Comp.  Stat.  1913,  §  9644), 
which  declares  that  a  transfer  by  a  bank- 
rupt of  any  of  his  property  shall  be  voidable 
by  the  trustee  if  it  be  made  or  recorded, 
when  recording  is  re(|uired,  within  four 
months  before  the  petition  in  bankruptcy  is 
filed,  and  the  bankrupt  is  insolvent,  and  the 
transfer  then  operates  as  a  preference, 
[For  other  cnscs,  see  Bankruptcy,  VI.  b,  2,  in 

Digest   Sup.  Ct.   1908.) 

Bnnkrnpley  —  lien  of  trustee  —  when 
attacliin^. 

4.  The  trustee  in  bankruptcy  takes  the 
status  of  a  creditor  holding  a  lien  as  of  the 
time  when  the  petition  in  bankruptcy  is 
filed,  under  the  provision  of  the  bankrupt 
act  of  July  1,  1898  (30  Stat,  at  L.  544, 
chap.  541,  Comp.  Stat.  1913,  §  9631),  §  47a, 
cl.  2,  as  amended  by  the  act  of  June  25, 
1910  (36  Stat,  at  L.  838,  chap.  412,  Comp. 
Stat.  1913,  §  9631),  that  a  trustee  in  bank- 
ruptcy "as  to  all  property  in  the  custody,  or 
coming  into  the  custody,  of  the  bankruptcy 
court,  shall  be  deemed  vested  with  all  the 
rights,  remedies,  and  powers  of  a  creditor 
holding  a  lien  by  legal  or  equitable  proceed- 
ings." 

[For  other  cases,  see  Bankruptcy,  VII.,  in  Di- 
gest Sup.  Ct.  190S.] 


S76 


[No.  42.] 


Argued  November  2,  1915.    Decided  Novem- 
ber 29, 1915. 

APPEAL  from  the  United  States  Circuit 
Court  of  Appeals  for  the  Eighth  Circuit 
to  review  a  decree  which  reversed  a  decree 
of  tlie  District  Court  for  the  District  of 
Kansas,  sustaining  the  action  of  a  referee 
in  bankruptcy  in  denying  the  petition  of  a 
conditional  vendor  to  have  the  property 
sold  delivered  to  it  by  the  trustee  in  bank- 
ruptcy of  the  conditional  purchasers.  Af- 
firmed. 

See  same  case  below,  126  C.  C.  A.  425, 
209  Fed.  603. 

Statement  by  Mr.  Justice  Van  Dovan- 
tcr: 

[269]  By  a  contract  in  writing,  made  at 
Omaha,  Nebraska,  October  14,  1911,  between 
the  Baker  Ice  Machine  Company  and  Grant 
Brothers,  the  former  agreed  to  deliver  and 
install  upon  the  premises  of  the  latter  at 
1  lor  ton,  Kansas,  an  ice  making  and  re- 
frigerating machine  for  the  sum  of  $5,940, 
to  be  paid  partly  in  cash  and  partly  in  de- 
ferred instalments  evidenced  by  interest- 
bearing  notes.  It  was  specially  stipulated 
that  the  title  to  the  machine  should  be  and 
remain  in  the  Baker  Company  until  full 
payment  of  the  purchase  price;  that  the 
machine  should  not  be  deemed  a  fixture  to 
the  realty  prior  to  full  payment;  that  in 
the  meantime  Grant  Brothers  should  keep 
the  machine  in  good  order  and  keep  it  in- 
sured for  the  benefit  of  the  Baker  Company; 
that  if  default  was  made  in  the  payment 
of  the  purchase  price,  the  Baker  (Company 
should  have  the  right  to  resume  possession 
and  take  the  machine  away;  and  that,  in 
the  event  this  right  was  exercised,  the  com- 
pany should  be  reimbursed  for  all  expenses 
incurred  under  the  contract,  should  be  com- 
pensated for  any  damage  done  to  the  ma- 
chine in  the  meantime,  and  should  be  al- 
lowed a  rental  for  its  use  equal  to  6  per 
cent  per  annum  upon  the  purchase  price 
from  the  date  of  the  installation  to  that 
of  the  resumption  of  possession.  And  it  was 
further  stipulated  that  the  Baker  Company 
should  have  the  right  to  file  a  mechanics' 
lien  for  the  materials  and  labor  furnished 
under  the  contract,  and  that  no  notice  of  a 
purpose  to  file  such  a  lien,  other  than  that 
afforded  by  this  stipulation,  would  be  re- 
quired. 

The  machine  was  installed  in  February, 
1912,  the  cash  payment  was  made  and  notes 
were  given  for  the  balance  of  the  purchase 
price,  all  as  contemplated  by  the  contract. 
A  partial  payment  upon  two  of  the  notes 
brought  the  total  payments  up  to  $3,200.14, 
and  nothing  more  was  paid.  May  15,  1912, 
but  not  before,  the  contract  was  filed  for 

289  V.  S. 


1915. 


BAILEY  T.  BAKER  ICE  MACH.  CO. 


269,  270 


record  In  the  county  register's  office.  At 
that  time  Grant  Brothers  were  insolvent, 
and  if  the  contract  [270]  operated  as  a 
transfer  of  the  machine  from  them  to  the 
Baker  Company,  all  the  elements  of  a  pref- 
erential transfer,  in  the  sense  of  the  hank- 
niptcy  act,  were  present. 

July  11,  1912,  within  four  months  after 
such  filing.  Grant  Brothers  presented  to 
the  district  court  for  the  district  of  Kan- 
sas tlioir  voluntary  petition  in  bankruptcy, 
and  on  the  next  day  were  adjudged  Imnk- 
rupts.  l'os««>ssion  of  the  machine,  which 
had  remained  with  them  up  to  that  time, 
was  then  passed  to  the  trustee  in  bank- 
ruptcy. Shortly  thereafter,  the  balance  of 
the  purchase  price  being  due  and  unpaid, 
the'  Baker  Company  intervened  in  the  bank- 
ruptcy proceeding,  asserted  that  it  owned 
the  machine  and  was  entitled  to  the  pos- 
session in  virtue  of  the  contract,  and 
applied  for  an  order  directing  that  the  pos- 
session be  surrendered  to  it.  Upon  a  hear- 
ing before  the  referee  the  application  was 
denied,  and  upon  a  petition  for  review  his 
action  was  sustained  by  the  district  court. 
An  appeal  to  the  circuit  court  of  appeals 
resulted  in  a  reversal  of  the  decree,  with  a 
direction  that  the  machine  be  delivered  to 
the  Baker  Company  unless,  within  a  time 
to  be  named,  the  trustee  pay  the  balance 
of  the  purchase  price.  12G  C.  C.  A.  425, 
568,  209  Fed.  603,  844. 

During  the  pendency  of  the  controversy, 
as  now  appears,  the  machine  was  sold  for 
$2,800,  pursuant  to  an  order  of  the  referee, 
requested  by  the  parties,  whereby  the  pro- 
ceeds were  to  take  the  place  of  the  ma- 
chine and  be  disposed  of  according  to  the 
final  decision. 

Mr.  Edwin  A.  BLrauthofT  argued  the 
cause,  and,  with  Messrs.  Charles  Curtis, 
William  S.  McClintock,  and  Arthur  L. 
Quant,  filed  a  brief  for  appellant: 

The  national  bankruptcy  act  is  to  be  con- 
strued as  a  law  passed  in  aid  of  and  from 
the  point  of  commerce. 

Browning  v.  Waycross,  233  U.  S.  16,  23, 

58  L.  ed.  828,  832,  34  Sup.  Ct.  Rep.  578; 
Crenshaw  v.  Arkansas,  227  U.  S.  389,  400, 
57  L.  ed.  565,  669,  33  Sup.  Ct.  Rep.  294; 
Davis  v.  Virginia,  236  U.  S.  697,  699,  59 
L.  ed.  795,  797,  35  Sup.  Ct.  Rep.  479; 
Dozier  v.  Alabama,  218  U.  S.  128,  54  L. 
ed.  967,  28  L.R.A.(N.S.)  264,  30  Sup.  Ct. 
Rep.  649;  Gleason  v.  Thaw,  236  U.  8.  558, 
660,  59  L.  ed.  717,  719,  35  Sup.  Ct.  Rep. 
287;  Swift  &  Co.  v.  United  States,  196  U. 
a  375,  398,  49  L.  ed.  518,  525,  25  Sup.  Ct. 
Rep.  276;  Williams  v.  United  States,  Fi- 
delity &  G.   Co.  236  U.   S.   549,  554,   555. 

59  L.  ed.  713,  716,  717,  35  Sup.  Ct.  Rep.  289. 
The  right  of  a  trustee  in  bankruptcy  as 

•0  li.  ed. 


a  lien  creditor  is  treated  as  a  question  of 
local  law. 

Dale  V.  PaUison,  234  U.  S.  399,  404,  58 
L.  ed.  1370,  1374,  52  L.RJ^.(N.S.)  754,  34 
Sup.  Ct.  Rep.  785;  Detroit  Trust  Co. 
V.  Pontiac  Sav.  Bank,  237  U.  S.  186,  59 
L.  ed.  907,  85  Sup.  Ct.  Rep.  500. 

The  local  law  applicable  is  that  of  Kansas, 
the  place  of  performance  and  situs  of  tlie 
property. 

McGarry  ▼.  Nicklin,  55  Am.  St.  Rep.  48, 
note;  Beggs  t.  Bartels,  73  Conn.  132,  84 
Am.  St.  Rep.  152,  46  Ati.  874;  Bradley  t. 
Kingman  Implement  Go.  79  Neb.  144,  112 
N.  W.  346;  Hart  v.  Barney  &  S.  Mfg.  Co. 
7  Fed.  549;  Lanston  Monotype  Mach.  Co* 
T.  Curtis,  140  C.  C.  A.  89,  224  Fed.  403; 
Re  Legg,  9G  Fed.  326;  1  Loveland,  Bankr. 
4th  ed.  §  406,  p.  837 ;  Re  Nuckols,  201  Fed. 
439 ;  Pittsburgh  Locomotive  &  Car  Works  v» 
SUte  Nat.  Bank,  Fed.  Cas.  No.  11,198  ^ 
Potter  Mfg.  Co.  y.  Arthur,  136  CCA. 
589,  220  Fed.  845,  Ann.  Cas.  1916A,  1268; 
Re  Wall,  207  Fed.  995;  Re  O'Callaghan,  225 
Fed.  133;  John  Deere  Plow  Co.  v.  Mowry, 
137  C  C  A.  539,  222  Fed.  3. 

An  unrecorded  contract  of  conditional 
sale  is  void  as  against  a  creditor  levying 
on  property  prior  to  recording. 

Re  Fish  Bros.  Wagon  Co.  26  L.RAl.(N.S.) 
433,  90  C  C  A.  427,  164  Fed.  553;   Gcp- 
pelt  v.  Middle  West  Stone  Co.  00  Kan.  539, 
135  Pac.  573;  Paul  v.  Lingenfelter,  89  Kan. 
871,  132  Pac  1179. 

Prior  to  June  25,  1910,  a  trustee  in  bank- 
ruptcy was  not  a  lien  creditor. 

York  Mfg.  Co.  v.  Cassell,  201  U.  S.  344, 
50  L.  ed.  782,  26  Sup.  Ct  Rep.  481. 

The  amendment  of  June  25,  1910,  is  not 
retroactive. 

Detroit  Trust  Co.  v.  Pontiac  Sav.  Bank,. 
237  U.  S.  186,  59  L.  ed.  907,  35  Sup.  Ct. 
Rep.  509 ;  Holt  v.  Henley,  232  U.  S.  637,  5» 
L.  ed.  767,  34  Sup.  Ct.  Rep.  450. 

The  amendment  of  June  25,  1910,  is  to 
be  construed  in  the  light  of  the  evil  to  be 
remedied,  and  in  such  a  way  arto  mani- 
fest the  spirit  of  the  amendment. 

Bingham  v.  Birmingham,  103  Mo.  345, 
15  S.  W.  533;  Church  of  the  Holy  Trinity 
V.  United  States,  143  U.  S.  457,  463,  36 
L.  ed.  226,  229,  12  Sup.  Ct.  Rep.  511;  1 
Kent,  Com.  p.  462;  People  ex  rel.  Peake  t. 
Columbia  County,  43  N.  Y.  130;  Standard 
Oil  Co.  y.  State,  117  Tenn.  618,  10  L.RJ^* 
(N.S.)  1015,  100  S.  W.  705. 

Under  the  amendment  of  June  25,  1910, 
a  trustee  in  bankruptcy  has  a  status  as  if 
he  were  a  creditor  holding  a  lien;  it  is  not 
necessary  that  there  be  a  creditor  actually 
holding  a  lien. 

Crucible  Steel  Co.  v.  Holt,  98  C  C.  A. 
101,  174  Fed.  127,  224  U.  S.  262,  56  L.  ed. 

271 


SUPREME  OOVRT  OF  THE  UNITED  STATES. 


Oct.  Tebii, 


766,  32  Sup.  Ct  Rep.  414 ;  Detroit  Trust  Co. 
v.  Pontiac  Say.  Bank,  237  U.  S.  186,  187, 
60  Jj.  ed.  007,  000,  35  Sup.  Ct.  Rep.  500; 
York  Mfg.  Co.  t.  CasBell,  201  U.  S.  344, 
60  L.  ed.  782,  26  Sup.  Ct.  Rep.  481;  Au- 
gusta Grocery  Co.  v.  Southern  Moline  Plow 
Co.  130  C.  C.  A.  444,  213  Fed.  786;  Re 
Basemore,  180  Fed.  236;  Black,  Bankr.  § 
316,  p.  753;  Re  Callioun  Supply  Co.  180 
Fed.  637;  Sattler  v.  Slonimsky,  100  Fed. 
602;  Collier,  Bankr.  10th  ed.  by  Gilbert,  pp. 
660-662b;  Cooper  Grocery  Co.  ▼.  Park, 
134  C.  C.  A.  64,  218  Fed.  43;  Re  Dancy 
Hardware  k  Furniture  Co.  108  Fed.  336; 
Re  Franklin  Lumber  Co.  187  Fed.  281;  Re 
Farmers'  Supply  Co.  106  Fed.  000;  Re  Gag- 
lione,  200  Fed.  81;  Re  Gehris-Herbine  Co. 
188  Fed.  602;  Re  Geiver,  103  Fed.  128; 
Re  Groezinger,  100  Fed.  035;  Re  Hammond, 
188  Fed.  1020;  Re  Hartdagen,  180  Fed.  546; 
Ke  J.  S.  Appel  Suit  &  Cloak  Co.  108  Fed. 
322;  Kraver  v.  Abrahams,  20  Am.  Bankr. 
Rep.  365;  Re  Kreuger,  100  Fed.  867;  1 
Loveland,  Bankr.  4th  ed.  §  372,  pp.  765,  768, 
777:  Meier  &  F.  Co.  v.  Sabin,  130  C.  C.  A. 
605,  214  Fed.  231 ;  Re  Merry,  201  Fed.  360 ; 
Re  Nelson,  101  Fed.  233;  Re  Nuckols,  201 
Fed.  437;  Re  O'Brien.  215  Fed.  120;  Re 
Pacific  Electric  &  Automobile  Co.  224  Fed. 
220;  Pacific  State  Bank  v.  Coats,  123  C.  C. 
A.  634,  205  Fed.  618,  Ann.  Cas.  101 3E, 
846;  Re  Palmer,  218  Fed.  74;  Re  Pitts- 
burgh-Big Muddy  Coal  Co.  132  C.  C.  A.  81, 
215  Fed.  V03;  2  Remington,  Bankr.  2d  ed. 
pp.  044,  060,  061,  1022,  1023,  1081,  1105, 
1123,  §§  1138,  1143,  1207,  1241,  1270;  Re 
RiehU  200  Fed.  456;  Re  Smith,  108  Fed. 
876:  Sturdivant  Bank  ▼.  Schade,  116  C.  C. 
A.  140,  105  Fed.  188;  T.  L.  Smith  Ck>.  ▼. 
Orr.  130  C.  C.  A.  517.  224  Fed.  71;  Town- 
send  V.  Asnepoo  Fertilizer  Co.  128  C.  C. 
A.  613,  212  Fed.  07:  Re  Vandewater  &  Co. 
210  Fed.  627;  Re  Whatley  Bros.  100  Fed. 
326. 

A  trustee's  status  as  lien  creditor  relates 
to  a  date  ^anterior  to  the  recording  of  the 
instrumenr,  which,  by  delay  in  recording, 
was,  for  that  reason,  while  unrecorded,  void 
as  to  creditors. 

Detroit  Trust  Co.  y.  Pontiac  Say.  Bank, 
237  U.  S.  186,  50  L.  ed.  007,  35  Sup.  Ct. 
Rep.  500;  York  Mfg.  Co.  ▼.  Cassell,  201 
U.  S.  344,  50  L.  ed.  782,  26  Sup.  Ct.  Rep. 
481;  Bank  of  North  America  v.  Pennsyl- 
vania Motor  Car  Co.  235  Pa.  108,  83  Atl. 
622;  Cornelius  v.  Boling,  18  Okla.  460,  00 
Pae.  874;  Williams  v.  German -American 
Trust  Co.  136  C.  C.  A.  257,  210  Fed.  607; 
Re  T.  H.  Bunch  Commission  Co.  226  Fed. 
243. 

In  cases  where  an  earlier  date  is  unim- 
portant, the  date  has  been  fixed  as  of  the 
filing  of  the  petition. 


Massachusetts  Bonding  &  Ins.  Co.  ▼. 
Kemper,  136  C.  C.  A.  603,  220  Fed.  860; 
Potter  Mfg.  Co.  v.  Arthur,  136  C.  C.  A. 
580,  220  Fed.  483,  Ann.  Cas.  1016A,  1268; 
Re  Williamsburg  Knitting  Mill,  100  Fed. 
871. 

Also  of  adjudication. 

Millikin  t.  Second  Nat.  Bank,  124  G.  a 
A.  148,  206  Fed.  14. 

Some  cases  hold  that  the  right  of  the 
trustee  as  a  lien  creditor  does  not  antedate 
the  petition. 

Big  Four  Implement  Co.  t.  Wright,  47 
LJl.A.(N.S.)  1223,  126  C.  C.  A.  677,  207 
Fed.  535;  Re  Farmers'  Co-Op.  Co.  202  Fed. 
1005;  Hart  t.  Emmerson-Brantingham  Co. 
203  Fed.  60. 

The  question  is  not  determinable  as  one 
involving  jurisdiction. 

Acme  Harvester  Co.  v.  Beekman  Lumber 
Co.  222  U.  S.  300,  56  L.  ed.  208,  32  Sup. 
Ct.  Rep.  06. 

Nor  as  involving  passing  of  title  of  the 
bankrupt. 

Everett  v.  Judson,  228  U.  S.  474,  478, 
470,  57  L.  ed.  027,  020,  46  L.R.A.(N.S.) 
154,  33  Sup.  Ct.  Rep.  568. 

But  as  involving  property  which  creditors 
are  entitled  to  have  treated  as  property  of 
the  bankrupt. 

Recording  statutes  are  liberally  construed 
in  favor  of  creditors. 

Bradley  v.  Kingman  Implement  Co.  79 
Neb.  144,  112  N.  W.  346;  Rowand  v.  Ander- 
son, 33  Kan.  268,  52  Am.  Rep.  620,  6  Pae. 
255;  Tooker  v.  Siegel-Cooper  Co.  104  N.  Y. 
447,  87  N.  E.  773. 

The  contract  in  issue  is  in  effect  a  chat- 
tel mortgage;  not  a  conditional  sale. 

24  Am.  &  Eng.  Enc.  Law,  2d  ed.  pp.  1045, 
1046;  Andrews  v.  Colorado  Sav.  Bank,  46 
Am.  St.  Rep.  205,  note;  Arbuckle  Bros.  v. 
Kirkpatrick,  08  Tenn.  221,  36  L.R.A.  286, 
60  Am.  St.  Rep.  854,  30  S.  W.  3;  Arkansas 
Valley  Land  &  Cattle  Co.  v.  Mann,  130  U. 
S.  60,  32  L.  ed.  854,  0  Sup.  Ct.  Rep.  458; 
Bailey  v.  Hervey,  135  Mass.  172;  Baldwin 
V.  Crow,  86  Ky.  679,  7  S.  W.  146;  ^ard- 
sley  V.  Beardsley,  138  U.  S.  262,  266,  34 
L.  ed.  928,  929,  11  Sup.  Ct.  Rep.  318;  Black, 
Judicial  Precedents,  p.  168 ;  Bryant  v.  Swof- 
ford  Bros.  Dry  Goods  Co.  214  U.  S.  279, 
290,  63  L.  ed.  997,  1002,  29  Sup.  Ct.  Rep. 
614;  Chicago  R.  Equipment  Co.  v.  Mer- 
chants' Nat.  Bank,  136  U.  S.  268,  280,  34 
L.  ed.  340,  352,  10  Sup.  Ct.  Rep.  009; 
Chlckering  v.  Bastress,  130  111.  206,  17  Am. 
St.  Rep.  300,  22  N.  E.  642;  Corbett  t. 
Riddle,  126  C.  C.  A.  635,  200  Fed.  811; 
Cowden  v.  Finney,  0  Idaho,  610,  76  Pae 
765;  Coweta  Fertilizer  Co.  v.  Brown,  80 
C.  C.  A.  612,  163  Fed.  165;  6  Cyc.  004;  3 
Enc.  U.  S.  Sup.  Ct.  Rep.  745,  746;  Graham 

280  V.  a. 


1915. 


BAILEY  T.  BAKER  ICE  MACH.  00. 


T.  Sadlier,  165  111.  07,  46  K.  E.  221 ;  Hark- 
ness  V.  Russell,  118  U.  S.  663,  30  L.  ed. 
285,  7  Sup.  Ct.  Rep.  51;  Hart  v.  Barney  k 
8.  Mfg.  Co.  7  Fed.  543;  Hervey  t.  Rhode 
Island  Locomotive  Works,  93  U.  8.  664, 
23  L.  ed.  1003;  Hereford  v.  Davis,  102  U. 
S.  235,  26  L.  ed.  160;  Howard  v.  Simpkins, 
70  Ga.  322;  Kelly  T.  Sibley,  69  C.  C.  A. 
€74,  137  Fed.  586;  Herr  v.  Denver  Mill  & 
Mercantile  Co.  6  L.RJL.  643,  note;  McQour- 
key  V.  Toledo  &  O.  C.  R.  Co.  146  U.  S.  536, 
36  L.  ed.  1079;  13  Sup.  Ct.  Rep.  170;  Mott 
V.  Havana  Nat.  Bank,  22  Hun,  357 ;  Munroe 
v.  Williams,  36  S.  C.  572,  15  S.  E.  279; 
Falmer  v.  Howard,  72  Cal.  293,  1  Am.  St. 
Rep.  60,  13  Pac.  858;  Parke  &  L.  Co.  v. 
White  River  Lumber  Co.  101  Cal.  39,  35 
Pac.  442;  Smith  v.  Gilmore,  7  App.  D.  C. 
192;  Stockton  Sav.  &  L.  Soc.  v.  Purvis, 
112  Cal.  236,  53  Am.  St.  Rep.  210,  44  Pac. 
561 ;  Straub  v.  Screven,  19  S.  C.  448 ;  D.  A. 
Tompkins  Co.  v.  Monticello  Cotton  Oil  Co. 
137  Fed.  629;  Townsend  v.  Ashepoo  Fer- 
tiUzer  Co.  128  C.  C.  A.  613,  212  Fed.  100; 
Union  Stock-Yards  &  Transit  Co.  v.  West- 
em  Land  &  Cattle  Co.  7  C.  C.  A.  660,  18 
U.  S.  App.  438,  59  Fed.  53;  Williams  v. 
Dnunmond  Tobacco  Co.  17  Tex.  Civ.  App. 
635,  44  S.  W.  185;  William  W.  Bierce  v. 
Hutchins,  205  U.  S.  340,  348,  51  L.  ed.  828, 
834,  27  Sup.  Ct.  Rep.  524;  Abernathy  v. 
Madden,  91  Kan.  809,  139  Pac.  431;  Anglo- 
American  Land,  Mortg.  &  Agency  Co.  t. 
Lombard,  68  C.  C.  A.  89,  132  Fed.  741; 
Baker  Ice  Mach.  Co.  v.  Bailey,  126  C.  C. 
A  425,  209  Fed.  603;  Big  Four  Implement 
Co.  V.  Wright,  47  L.R.A.(N.S.)  1223,  125 
O.  C.  A.  577,  207  Fed.  535;  Christie  v. 
Scott,  77  Kan.  257,  94  Pac.  214;  HaU  v. 
Draper,  20  Kan.  139;  Hallowell  y.  Miene, 
16  Kan.  65;  Moline  Pk>w  Co.  v.  Witham, 
52  Kan.  189,  34  Pac.  751;  First  Nat.  Bank 
T.  Tufts,  53  Kan.  710,  37  Pac.  127;  Os- 
borne V.  Connor,  4  Kan.  App.  609,  46  Pac 
327;  Paul  v.  Lingenfelter,  89  Kan.  871,  132 
Pac.  1179;  Standard  Implement  Co.  ▼.  Par- 
lin  &  O.  Co.  51  Kan.  566,  33  Pac.  363;  Sum- 
ner v.  McFarlan,  15  Kan.  600;  35  Cyc.  658- 
660;  Contracting  &  Bldg.  Co.  v.  Continental 
Trust  Co.  47  C.  C.  A.  143,  108  Fed.  3;  Ed- 
wards V.  Symons,  65  Mich.  348,  32  N.  W. 
796;  Mishawaka  Woolen  Mfg.  Co.  v.  West- 
Tcer,  112  C.  C.  A.  109,  191  Fed.  465. 

The  question  of  the  construction  of  a 
•contract  is  determinable  by  the  local  law. 

Bryant  v.  Swofford  Bros.  Dry  Goods  Co. 
214  U.  S.  279,  53  L.  ed.  997,  29  Sup.  Ct. 
Rep.  614;  Dale  v.  Pattison,  234  U.  S.  399, 
404,  58  L.  ed.  1370,  1374,  52  L.R.A.(N.S.) 
754,  34  -Sup.  Ct.  Rep.  785;  Harkness  v. 
Russell,  118  U.  S.  663,  30  L.  ed.  285,  7  Sup. 
Ct  Rep.  51;  Mishawaka  Woolen  Mfg.  Co. 
V.  Westveer,  112  C.  C.  A.  109,  191  Fed.  466; 
Taney  v.  Penn.  Nat  Bank,  232  U.  S.  174, 
180,  58  L.  ed.  558,  34  Sup.  Ct  Rep.  288. 
40  L.  ed. 


The  true  question  in  Dunlop  t.  Mercer, 
86  C.  C.  A.  436,  156  Fed.  545;  Monitor 
Drill  Co.  T.  Mercer,  20  LJLA.(N.S.)  1065, 
90  C.  C.  A.  303,  168  Fed.  943,  16  Ann.  Cas. 
214;  Re  Pierce,  87  C.  C.  A.  537,  157  Fed. 
755;  and  York  Mfg.  Co.  y.  Caasell,  201  U. 
S.  344,  50  L.  ed.  782,  26  Sup.  Ct  Rep.  481, 
is  not  the  differentiation  between  condition- 
al-sale contracts  and  chattel  mortgages  as 
such,  but  whether  the  delivery  of  merchan- 
dise intended  for  resale  was  fraudulent  as 
to  creditors,  whatever  the  character  of  the 
instrument. 

Re  Carpenter,  125  Fed.  831;  Coweta  Fer- 
tilizer Co.  V.  Brown,  89  C.  C.  A.  612,  163 
Fed.  166;  35  Qyc.  635;  Fitzgerald  v.  Fuller, 
19  Hun,  180;  Re  Gait,  120  Fed.  443;  Re 
Garcewich,  53  C.  C.  A.  510,  115  Fed.  87; 
Lewis  y.  McCabe,  49  Conn.  141,  44  Am. 
Rep.  217;  Ludden  y.  Hazen,  31  Barb.  650; 
Pratt  V.  Burhans,  84  Mich.  487,  22  Am.  St. 
Rep.  703,  47  N.  W.  1064;  Re  Rasmussen, 
136  Fed.  704;  Re  Rodgers,  60  C.  C.  A.  567, 
125  Fed.  177;  Star  Clothing  Co.  y.  Norde- 
man,  118  Tenn.  384,  100  8.  W.  93 ;  Winches- 
ter Wagon  Works  Mfg.  Co.  y.  Carman,  109 
Ind.  31,  58  Am.  Rep.  382,  9  N.  E.  707. 

A  contract  requiring  a  purchaser  to  in- 
stall parts  of  machinery  becoming  an  inte- 
gral portion  of  a  completed  plant  is  not 
construable  as  a  contract  of  conditional 
sale;  and  a  contract  placing  the  risk  of  ac- 
cidental destruction  on  the  purchaser  is 
not  construable  as  a  contract  of  conditional 
sale. 

American  Soda  Fountain  Co.  y.  Blue,  146 
Ala.  682,  40  So.  218 ;  Harley  y.  Stanley,  138 
Am.  St.  Rep.  903,  note;  J.  M.  Arthur  &  Co. 
y.  Blackman,  63  Fed.  536;  Foley  y.  Fel- 
rath,  98  Ala.  176,  39  Am.  St.  Rep.  39,  13 
So.  486;  Glisson  y.  Heggie  Bros.  105  Ga. 
30,  31  S.  E.  118;  Grant  y.  United  States,  7 
Wall.  331,  19  L.  ed.  194;  Jacob  Strauss 
Saddlery  Co.  y.  Kingman,  42  Mo.  App.  208; 
La  VaUey  v.  Ravenna,  78  Vt  152,  2  hJiJL. 
(N.S.)  97»  112  Am.  St  Rep.  898,  62  Atl. 
47,  6  Ann.  Cas.  684;  McConihe  y.  New  York 
&  E.  R.  Co.  20  N.  Y.  495;  Marion  Mfg.  Co. 
y.  Buchanan,  118  Tenn.  238,  8  L.RJL(N.S.)' 
590,  99  S.  W.  984,  12  Ann.  Gas.  707;  1 
Mechem,  Sales,  §  634;  Mountain  City  Mill 
Co.  y.  Butler,  109  Ga.  469,  34  S.  E.  565; 
Planters'  Bank  y.  Vandyck,  4  Heisk.  617; 
Randle  v.  Stone,  77  Ga.  501 ;  Roach  y.  Whit- 
field, 94  Ark.  448,  140  Am.  St  Rep.  131, 127 
S.  W.  722;  Swallow  y.  Emery,  111  Mass. 
355. 

The  contract  operating  as  an  affirmative 
stipulation  giving  the  seller  a  definite  right 
to  file  a  mechanic's  lien,  and  notice  of  in- 
tention to  do  so  being  declared  in  the  con- 
tract— 

(a)  The  contract  (^peratei  m  firm  elec- 

279 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebic» 


tion  to  enforce  the  purchase  price;   hence 
the  sale  is  absolute,  not  conditional. 

6  Am.  &  Eng.  Enc.  Law  2d  ed.  480  note, 
and  cases  cited;   American  Soda  Fountain 
Co.  V.  Blue,  146  Ala.  682,  40  So.  218,  af- 
firmed on  second  appeal  in  150  Ala.  165,  43 
So.  700;  Arctic  Ice  Mach.  Co.  v.  Armstrong 
County  Trust  Co.  112  C.  C.  A.  458,  192 
Fed.  114;  Aultman  v.  Silha,  85  Wis.  359, 
55  N.  W.  711 ;  Bailey  v.  Hervey,  135  Mass. 
172;    Benjamin,    Sales,    7th    ed.    Bennett's 
Notes,  p.  301;  Bensinger  Self -Adding  Cash 
Roister   v.    Cain,   4  Tex.   App.    Civ.   Cas. 
(Willson)  499,  18  S.  W.  136;  Chicago  &  A. 
R.  Co.  V.  Union  Rolling  Mill  Co.  109  U.  8. 
719,  27  L.  ed.  1087,  3  Sup.  Ct.  Rep.  594; 
Re  Cohn,  18  Am.  Bankr.  Rep.  797;  Cromp- 
ton  V.  Beach,  62  Conn.  28,  36  Am.  St.  Rep. 
323,  25  Atl.  446;   35  Cyc.  673,  705;  Dow- 
dell   V.   Empire   Furniture   &  Lumber   Co. 
84     Ala.     316,     4     So.     31;     Edmead     v. 
Anderson,    118   App.    Div.    16,    103    N.    Y. 
Supp.   369;    Elwood   State   Bank  v.   Mock, 
40  Ind.  App.  685,  82  N.  E.  1003;  Fuller  v. 
Eames,  108  Ala.  464,  19  So.  366;  Gaar,  S. 
&  Co.  y.  Fleshman,  38  Ind.  App.  493,  77  N. 
E.  744,  78  N.  E.  348;  Hine  v.  Roberts,  48 
Conn.  267,  40  Am.  Rep.  170;  Holt  Mfg.  Co. 
V.  Ewing,  109  Cal.  356,  42  Pac.  435;  Hooven, 
O.  &  R.  Co.  V.  Featherstone,  99  Fed.  181; 
Keystone  Mfg.  Co.  v.  Cassellius,  74  Minn. 
115,  76  N.  W.  1028;  Laclede  Power  Co.  v. 
Ennis    Stationery   Co.    79    Mo.    App.    307; 
Lang  Y.  Adams,  71  Kan.  310,  80  Pac.  593; 
Cole  V.  Hines,   32  L.R.A.   471,  note;   Leh- 
man V.   Van   Winkle,   92   Ala.   443,   8   So. 
870;  Re  Levin,  K.  &  Co.  136  CCA.  279, 
220  Fed.  451;   Loomis  v.  Bragg,  50  Conn. 
228,   47   Am.   Rep.   638;    McCormick   Har- 
vesting Mach.  Co.  V.  Lewis,  52  Kan.  358, 
35  Pac.  12;  Case  Mfg.  Co.  v.  Smith,  5  L.R.A. 
231,  40   Fed.   339;    Matteson  v.   Equitable 
Min.  &  Mill.  Co.  143  Cal.  436,  77  Pac.  144; 
1  Mechem,  Sales,  §  619;   Merchants'  &  P. 
Bank  v.  Thomas,  69  Tex.  238,  6  S.  W.  565; 
Minneapolis  Harvester  Works  v.  Hally,  27 
Minn.  496,  8  N.  W.  597 ;  Moline  Plow  Co.  v. 
Rodgers,  53  Kan.  743,  42  Am.  St.  Rep.  317, 
37  Pac.  Ill;   Montgomery  Iron  Works  v. 
Smith,  98  Ala.  644,   13  So.  525;   Nauman 
Co.  V.  Bradshaw,  113  C.  C.  A.  274,  193  Fed. 
350;  Parke  &  L.  Co.  v.  White  River  Lumber 
Co.  101  Cal.  37,  35  Pac.  442;   Richards  v. 
Schreiber,  C.  k  W.  Co.  98  Iowa,  422,   67 
N.  W.  569;  Segrist  v.  Crabtree,  131  U.  S. 
287,  292,  33  L.  ed.  125,  127,  9  Sup.  Ct.  Rep. 
687;    Smith   v.    Barber,    153   Ind.    328,   63 
N.  E.  1014;   Smith  v.  Gilmore,  7  App.  D. 
C.  192;  Tanner  &  D.  Engine  Co.  v.  Hall, 
89  Ala.  628,  7  So.  187;  Turk  v.  Camahan, 
25  Ind.  App.  125,  81  Am.  St.  Rep.  86,  67 
N.  E.  729;  Van  Winkle  v.  Crowell,  146  U. 
S.  42,  51,  36  L.  ed.  880,  883,  13  Sup.  Ct.  Rep.  I 
18;  Warner  Elevator  Mfg.  Co.  v.  Capitol  In- 
280 


vest.  Bldg.  &  L.  Asso.  127  Mich.  323,  89  Am. 
St  Rep.  473,  86  N.  W.  828;  WiUiston,  Sales^ 
§  571;  William  W.  Bierce  v.  Hutchins,  205 
U.  S.  340,  346,  61  L.  ed.  828,  833,  27  Sup. 
Ct.  Rep.  524;  Wurmser  v.  Sivey,  52  Mo. 
App.  424;  Twentieth  Century  Machineiy 
Co.  V.  Excelsior  Springs  Mineral  Water  k 
Bottling  Co.  —  Mo.  App.  — ,  171  S.  W. 
944;  Orcutt  v.  Rickenbrodt,  42  App.  Div. 
238,  59  N.  Y.  Supp.  1008;  Butler  v.  Dod- 
son,  78  Ark.  569,  94  S.  W.  703;  Alden  t. 
W.  J.  Dyer  k  Bro.  92  Minn.  136,  99  N.  W. 
784;  D.  M.  Osborne  k  Co.  v.  Walther,  12 
Okla.  27,  69  Pac.  953;  Seanor  v.  McLaugh- 
lin, 165  Pa.  160,  32  LJI.A.  467,  30  AtL 
717;  Button  v.  Trader,  75  Mich.  295,  42 
N.  W.  834;  Frisch  v.  Wells,  23  L.R  A.(N.S.) 
144,  note;  Hickman  v.  Richburg,  122  Ala. 
638,  26  So.  136;  Heller  v.  Elliott,  44  N. 
J.  L.  467;  Dowagiac  Mfg.  Co.  v.  Mahon,  13 
N.  D.  616,  101  N.  W.  903;  Fairbanks,  M. 
k  Co.  V.  Baskett,  98  Mo.  App.  63,  71  S.  W. 
1113. 

(b)  The  contract  operates  as  an  admis- 
sion that  the  machinery  became  a  part  of 
the  realty,  hence  not  the  basis  of  a  condi- 
tional sale. 

Bratton  v.  Clawson,  2  Strobh.  L.  478; 
Case  Mfg.  Co.  v.  Garven,  45  Ohio  St.  301, 
13  N.  £.  493;  Corliss  v.  McLagin,  29  Me. 
116;  27  Cyc  31,  37—39;  Eaves  v.  Estes, 
10  Kan.  314,  15  Am.  Rep.  346;  Fairbanks 
V.  Richardson  Drug  Co.  42  Mo.  App.  262; 
Farrar  v.  Stackpole,  6  Me.  154.  19  Am. 
Dec.  201 ;  Ford  v.  Cobb,  20  N.  Y.  348 ;  Fort- 
man  V.  Goepper,  14  Ohio  St.  564;  Fosdick 
V.  Schall,  99  U.  S.  235,  251,  25  L.  ed.  339, 
342;  Geppelt  v.  Middle  West  Stone  Co.  90 
Kan.  639,  135  Pac.  673;  Harkey  v.  Cain, 
69  Tex.  146,  6  S.  W.  637;  Haven  v.  Emery, 
33  N.  H.  66;  Hawkins  v.  Hersey,  86  Me. 
396,  30  Atl.  14;  Hooven,  O.  k  R.  Co.  v. 
John  Feather8tone*s  Sons,  49  C.  C.  A.  229, 
111  Fed.  81;  Jones,  Chat.  Mortg.  5th  ed. 
§  132a;  Jenks  v.  Colwell,  66  Mich.  420,  11 
Am.  St.  Rep.  502,  33  N.  W.  528;  Lansing 
Iron  k  Engine  Works  v.  Walker,  91  Mich. 
409,  30  Am.  St.  Rep.  488,  51  N.  W.  1061; 
Marshall  v.  Bacheldor,  47  Kan.  442,  28  Pac 
168;  Morgan  v.  Arthurs,  3  Watts,  140; 
Murdock  v.  Harris,  20  Barb.  407;  Oves  v. 
Ogelsby,  7  Watts,  106;  Phelps  k  B.  Wind- 
mill Co.  V.  Baker,  49  Kan.  434,  30  Pac.  472; 
Phoenix  Iron  Works  Co.  v.  New  York  Secur. 
k  T.  Co.  28  C.  C.  A.  76,  64  U.  S.  App.  408, 
83  Fed.  767;  Pike  Electric  Co.  v.  Richard- 
son Drug  Co.  42  Mo.  App.  272;  Porter  t. 
Pittsburg  Bessemer  Steel  Co.  122  U.  S. 
267,  282,  30  L.  ed.  1210,  1211,  7  Sup.  Ct. 
Rep.  1206;  Progress  Press  Brick  k  Mach. 
Co.  V.  Gratiot  Brick  k  Quarry  Co.  161  Mo. 
601,  74  Am.  St.  Rep.  657.  62  S.  W.  401; 
Richardson  v.  Koch,  81  Mo.  264;  San  An- 
tonio  Brewing  Asso.   v.   Arctic   Ice   Madi. 

289  U.  S. 


1915. 


BAILEY  V.  BAKER  ICE  MACH.  CO. 


Mfg.  Co.  81  Tex.  09,  16  8.  W.  797;  Sparks 
V.  State  Bank,  7  Blackl.  469;  Springfield 
Foundry  &  Mach.  Co.  v.  Cole,  130  Mo.  7, 
31  S.  \V.  922;  Re  Sunflower  State  Ref.  Co. 
115  C.  C.  A.  132,  195  Fed.  180;  Triumph 
Electric  Co.  v.  Patterson,  127  C.  C.  A.  612, 
2U  Fed.  244;  Tyson  v.  Post,  108  N.  Y. 
217,  2  Am.  St.  Kep.  409,  15  N.  E.  316; 
United  States  v.  New  Orleans  ^  O.  R.  Co. 
(New  Orleans  ^  O.  R.  Co.  v.  Mellen)  12 
Wall.  362,  365,  20  L.  ed.  434,  436;  Walm- 
sley  V.  Milne,  7  C.  B.  N.  8.  116,  29  L.  J. 
C.  P.  X.  S.  97,  6  Jut.  N.  S.  125,  1  L.  T. 
K.  S.  62,  8  Week.  Rep.  138;  White's  Ap- 
peal, 10  Pa.  252;  Re  Williamsburg  Knitting 
Mill,  190  Fed.  871;  Winslow  T.  Merchants' 
ins.  Co.  4  Met.  306,  38  Am.  Dec.  368. 

The  contract  being  dated  October,  1011, 
and  filed  May  15,  1912,  in  circumstances 
making  a  transfer  voidable  as  a  preference, 
the  date  of  the  preference  is  reckoned  as  of 
the  date  of  the  filing. 

American  Lead  Pencil  Co.  ▼.  Champion, 
67  Kan.  352,  46  Pac  696;  Babbitt  v.  Kel- 
1^,  96  Mo.  App.  529,  70  S.  W.  384;  Re 
BaU,  123  Fed.  164;  L.  A.  Becker  Co.  v. 
Gill,  124  C.  C.  A.  170,  206  Fed.  37:  Big 
Four  Implement  Co.  v.  Wright,  47  L.R.A. 
(N.S.)  1223,  125  C.  C.  A.  577,  207  Fed. 
537;  Re  Bolstad,  224  Fed.  283;  Re  Boyd, 
130  C.  C.  A.  288,  213  Fed.  774;  Bradley, 
C.  ft  Co.  V.  Benson,  93  Minn.  91,  100  N.*  W. 
670;  Brigman  v.  Covington,  135  C.  C.  A. 
250,  219  Fed.  600;  Brown  v.  Piatt,  8  Bosw.  | 
3^4;  Cameron  v.  Marvin,  26  Kan.  625; 
Carey  v.  Donohue,  126  C.  C.  A.  254,  209 
Fed.  328;  Chapman  v.  Weimer,  4  Ohio  St. 
481;  Christ  v.  Zehner,  212  Pa.  188,  61 
Atl.  822;  Claridge  v.  Evans,  137  Wis.  218, 
25  URJk.(N.S.)  144,  118  N.  W.  198,  803, 
2  Cobbey,  Chat  Mortg.  §  794;  Covington 
V.  Brigman,  210  Fed.  499;  Deupree  y.  Wat- 
son, 132  C.  C.  A.'  543,  216  Fed.  483;  Re 
Dismal  Swamp  Contracting  Co.  135  Fed. 
415;  Dixon  v.  Tyree,  92  Kan.  137,  139  Pac. 
1026;  Dobyns  v.  Meyer,  95  Mo.  132,  6  Am. 
St.  Rep.  32,  8  S.  W.  251;  Re  Doran,  83 
C.  C.  A.  265,  154  Fed.  467;  English  v.  Koss, 
140  Fed.  630;  Eppstein  v.  Wilson,  79  C. 
C.  A.  155,  149  Fed.  197 ;  First  Nat.  Bank  v. 
Anderson,  24  Minn.  435;  First  Nat.  Bank 
V.  Johnson,  68  Neb.  641,  94  N.  W.  837,  4 
Ann.  Cas.  485;  First  Nat.  Bank  v.  Connett, 
5  L.RwA.(N.S.)  148,  73  C.  C.  A.  219,  142 
Fed.  35;  Forrester  v.  Kearney  Nat.  Bank, 
49  Neb.  659,  68  N.  W.  1059;  Frank 
V.  Miner,  50  111.  444;  Gill  v.  Ely-Norris 
Safe  Co.  170  Mo.  App.  486,  156  S.  W. 
811;  Godwin  v.  Murchison  Nat.  Bank, 
145  N.  C.  320,  17  L.R.A. (N.S.)  935,  51) 
8.  E.  154;  Re  Great  Western  Mfg.  Co. 
81  C.  C.  A.  341,  152  Fed.  123;  Re  Hick- 
erson,  162  Fed.  345;  Humphrey  v.  Tatman, 
198  U.  S.  91,  49  L.  ed.  956,  25  Sup.  Ct 
•0  Ij.  ed. 


Rep.  567;  Re  Hunt,  139  Fed.  283;  John 
Deere  Plow  Co.  v.  Edgar  Farmer  Store 
Co.  154  Wis.  490,  143  N.  W.  194;  Johnston 
V.  Huff,  A.  &  M.  Co.  66  C.  C.  A.  534,  133 
Fed.  704;  Re  Klein,  116  C.  C.  A.  603,  197 
Fed.  241;  Re  Klingaman,  4  Am.  Bankr. 
Rep.  254;  Knapp  v.  Milwaukee  Trust  Co. 
216  U.  8.  545,  54  L.  ed.  610,  30  Sup.  Ct. 
Rep.  412,  89  C.  C.  A.  467,  162  Fed.  675; 
Re  Standard  Teleph.  &  Electric  Co.  157 
Fed.  106;  Loeser  v.  Savings  Deposit  Bank 
k  T.  Co.  18  L.RJL.(N.S.)  1233,  78  C. 
C.  A.  597,  148  Fed.  977 ;  Long  v.  Farmers' 
SUte  Bank,  9  L.ILA.(N.8.)  585,  77  C.  C. 
A.  538,  147  Fed.  360;  Re  Sam  Z.  Lorch  & 
Co.  199  Fed.  944;  McElvain  v.  Hardesty, 
94  C.  C.  A.  399,  169  Fed.  31;  McVay  v. 
English,  30  Kan.  368,  1  Pac.  795 ;  Re  Man- 
del,  10  Am.  Bankr.  Rep.  774;  Mathews  v. 
Hardt,  79  App.  Div.  570,  80  N.  Y.  Supp. 
462;  Mattley  v.  Giesler,  110  C.  C.  A.  90, 
187  Fed.  970;  Meyer  Bros.  Drug  Co.  v. 
Pipkin  Drug  Co.  69  C.  C.  A.  240,  136  Fed. 
396;  Re  W.  W.  MilU  Co.  162  Fed.  42; 
Moffat  V.  Beeler,  91  Kan.  215,  137  Pac.  963, 
Ann.  Cas.  1915C,  602;  Morgan  v.  First 
Nat.  Bank,  76  C.  C.  A.  236,  14|  Fed.  4G(i; 
Page  v.  Rogers,  211  U.  S.  575,  53  L.  cd. 
332,  29  Sup.  Ct.  Rep.  159;  Pew  v.  Price, 
251  Mo.  614,  158  S.  W.  338;  Pollock  v. 
Junes,  61  C.  C.  A.  555,  124  Fed.  163;  Kagau 
V.  Donovan,  189  Fed.  138;  Roberts  v.  John- 
son, 18  Am.  Bankr.  Rep.  132;  Rogers  v. 
Page  72  C.  C.  A.  164,  140  Fed.  590;  Roy  v. 
Salisbury,  134  N.  Y.  Supp.  733;  Sexton 
V.  Kessler  k  Co.  225  U.  S.  90,  98,  56  L. 
ed.  095,  1000,  32  Sup.  Ct.  Rep.  657;  Re 
Shirley,  50  C.  C.  A.  252,  112  Fed.  301;  Re 
Smith,  176  Fed.  426;  Studebaker  Bros. 
Mfg.  Co.  V.  Elsey-Hemphill  Carriage  Co. 
152  Mo.  App.  401,  133  S.  W.  412 ;  Re  Sturte- 
vant,  110  C.  C.  A.  68, 188  Fed.  196;  Thomp- 
son y.  Fairbanks,  196  U.  S.  516,  49  L.  ed. 
577,  25  Sup.  Ct.  Rep.  306 ;  Tilt  v.  Citizens* 
Trust  Co,  191  Fed.  441;  Torrance  v.  Win- 
field  Nat.  Bank,  66  Kan.  177,  71  Pac.  235; 
Utley  V.  Fee,  33  Kan.  683,  7  Pac.  555; 
Vitzthum  V.  Large,  162  Fed.  685;  Wm.  B. 
Grimes  Dry  Goods  Co.  v.  McKee,  51  Kan. 
706,  33  Pac.  594;  Williams  v.  German- Amer- 
ican Trust  Co.  135  C.  C.  A.  257,  219  Fed. 
507;  Wilson  v.  Leslie,  20  Ohio,  166;  Wilson 
Bros.  V.  Nelson,  183  U.  8.  191,  46  L.  ed.  147, 
22  Sup.  Ct.  Rep.  74;  Youngberg  v.  Walsh, 
72  Kan.  220,  83  Pac.  972;  Zartman  v.  First 
Nat.  Bank,  189  N.  Y.  267,  12  L.R.A.(N.S.) 
1083,  82  N.  E.  127,  109  App.  Div.  406,  96 
N.  Y.  Supp.  633.  See  also  Baker  Ice  Mach. 
Co.  V.  Bailey,  126  C.  C.  A.  425,  209  Fed. 
603;  Re  Bazemore,  189  Fed.  236;  Bowler 
V.  First  Nat.  Bank,  21  8.  D.  449,  130  Am. 
St.  Rep.  725,  113  N.  W.  618;  Re  Brown 
Wagon  Co.  224  Fed.  266;  Re  Calhoun  Sup- 
ply Co.  189  Fed.  537;  Re  Farmer's  Supply 

281 


6UPR£M£  OOUKT  OF  THE  UNITED  8TATE8. 


Oct.  Tbm, 


Go.  106  Fed.  090;  Re  Jackson  Brick  &  Tile 
Co.  189  Fed.  636;  Re  Jacobson,  200  Fed. 
812;  Keeble  v.  John  Deere  Plow  Co.  Ill 
O.  C.  A.  668,  190  Fed.  1019;  Landia  t.  Mc- 
Donald, 88  Mo.  App.  336;  Little  v.  Holley- 
Brooks  Hardware  Co.  67  C.  C.  A.  46,  133 
Fed.  878;  Rock  Island  Plow  Co.  v.  Reardon, 
222  U.  S.  354,  56  L.  ed.  231,  32  Sup.  Ct. 
Rep.  164;  Re  Social  Circle  Cotton  Mills,  213 
Fed.  904;  Sturdivant  Bank  v.  Schade,  115 
C.  C.  A.  140,  105  Fed.  188;  Re  Virgin,  224 
Fed.  128;  Re  Wade,  185  Fed.  664;  Re  What- 
ley  Bros.  100  Fed.  326. 

The  conditional  vendees  had  an  interest 
in  the  prc^erty,  which,  to  a  limited  extent, 
passed  to  the  vendor  by  recording  the  con- 
tract; hence  the  recording  of  the  contract 
operated  as  a  transfer. 

iEtna  F.  Ins.  Co.  v.  Tyler,  16  Wend.  385, 
30  Am.  Dec.  00;  Albright  v.  Meredith,  58 
Ohio  St.  100,  50  N.  E.  710;  6  Am.  k  Eng. 
Enc.  Law,  2d  ed.  p.  455;  Ames  Iron  Works 
V.  Richardson,  55  Ark.  642,  18  S.  W.  381; 
American  Soda  Fountain  Co.  v.  Vaughn, 
60  N.  J.  L.  582,  55  Atl.  54 ;  Tufts  v.  Griffin, 
22  Am.  St.  Rep.  866,  note;  Insurance  Co. 
of  N.  A.  V.  Erickson,  111  Am.  St.  Rep.  128, 
note;  Baker  v.  State  Ins.  Co.  31  Or.  41,  65 
Am.  St.  Rep.  807,  48  Pac.  600;  Beach's 
Appeal,  58  Conn.  478,  20  Atl.  475;  Benja- 
min, Sales,  7th  ed.;  Bennett's  Notes,  p.  300; 
Burnley  v.  Tufts,  66  Miss.  48,  14  Am.  St. 
Rep.  540,  5  So.  627;  Carpenter  v.  Scott,  13 
R.  I.  477;  Chase  v.  Ingalls,  122  Mass.  381; 
Connecticut  Mut.  L.  Ins.  Co.  v.  Stinson,  62 
lU.  App.  330;  Currier  v.  Knapp,  117  Mass. 
324;  Cutting  v.  Whittemore,  72  N.  H.  107, 
54  Atl.  1008;  32  Cyc.  648,  651;  35  Cyc. 
305;  Day  v.  Bassett,  102  Mass.  445;  Dumas 
T.  Northwestern  Nat.  Ins.  Co.  12  App.  D. 
O.  245,  40  L.R.A.  358 ;  Dupreau  v.  Hibernia 
Ins.  Co.  76  Mich.  615,  5  L.R.A.  671,  43  N. 
W.  585;  First  Nat.  Bank  v.  Staake,  202  U. 
8.  141,  146,  50  L.  ed.  067,  060,  26  Sup.  Ct. 
Rep.  580;  Geiss  v.  Franklin  Ins.  Co.  123 
Ind.  172,  18  Am.  St.  Rep.  324,  24  N.  E. 
99;  Geppelt  v.  Middle  West  Stone  Co.  90 
Kan.  539,  545,  135  Pac.  573;  Hamburg- 
Bremen  F.  Ins.  Co.  V.  Ruddell,  37  Tex.  Civ. 
App.  30,  82  S.  W.  826;  Hanover  F.  Ins. 
Co.  V.  Shrader,  11  Tex.  Civ.  App.  255,  31 
S.  W.  1100,  32  S.  W.  344;  Harley  v.  Stan- 
ley, 25  Okla.  80,  138  Am.  St.  Rep.  000,  105 
Pac.  188;  Re  Harrington,  20  Am.  Bankr. 
Rep.  606;  Hartford  F.  Ins.  Co.  v.  Keating, 
86  Md.  130,  63  Am.  St.  Rep.  400,  38  Atl. 
20;  Imperial  F.  Ins.  Co.  v.  Dunham,  117 
Pa.  460,  2  Am.  St.  Rep.  686,  12  Atl.  668; 
Jessup  V.  Fairbanks,  M.  &  Co.  38  Ind.  App. 
673,  78  N.  E.  1050;  Johannes  v.  Standard 
Fire  Office,  70  Wis.  106,  5  Am.  St.  Rep. 
150,  35  N.  W.  208;  Jones,  Chat.  Mortg. 
5th  ed.  §  117;  Jones,  Liens,  §§  1061,  1105; 
Knapp  y.  Alexander-Edgar  Lumber  Co.  237 


I  U.  S.  162,  167,  50  L.  ed.  894,  808,  35  Sup. 
*  Ct.  Rep.  515 ;  Lancaster  v.  Southern  Ina. 
Co.  153  N.  C.  285,  138  Am.  St.  Rep.  665, 
60  S.  £.  214;  Lasher  t.  St.  Joseph  F.  &  M. 
Ins.  Co.  86  N.  Y.  423;  Light  v.  Qreenwidi 
Ins.. Co.  105  Tenn.  480,  58  8.  W.  851;  lip- 
pincott  ▼.  Rich,  22  Utah,  106,  61  Pae.  626; 
Liverpool  ^  L.  ^  G.  Ins.  Co.  v.  Bicker,  10 
Tex.  Civ.  App.  264,  31  S.  W.  248;  Loventhal 
V.  Home  Ins.  Co.  112  Ala.  108,  83  L.RJL 
258,  57  Am.  St.  Rep.  17,  20  So.  410;  Mb- 
Williams  v.  Cascade  F.  &  M.  Ins.  Co.  7 
Wash.  52,  34  Pac.  140;  Matthews  y.  Capitol 
F.  Ins.  Co.  115  Wis.  272,  01  N.  W.  676; 
Milwaukee  Mechanics'  Ins.  Co.  y.  Rhea* 
60  C.  C.  A.  103,  123  Fed.  10;  National  Cash 
Register  Co.  v.  South  Bay  Club  House  Asao. 
64  Misc.  125,  118  N.  Y.  Supp.  1044;  Os- 
born  V.  South  Shore  Lumber  Co.  01  Wis. 
526,  65  N.  W.  184;  Re  Peasley,  137  Fed. 
100;  Pelton  v.  Westchester  F.  Ins.  Co.  77 
N.  Y.  605;  Pennsylvania  F.  Ins.  Co.  T. 
Hughes,  47  C.  C.  A.  450,  108  Fed.  497; 
Phenix  Ins.  Co.  v.  Kerr,  66  L.R.A.  660,  64 
C.  C.  A.  251,  120  Fed.  723 ;  Phillips  y.  Ho^ 
lenberg  Music  Co.  82  Ark.  0,  00  S.  W.  1106; 
Phenix  Ins.  Co.  v.  Hilliard,  50  Fla.  590, 
138  Am.  St.  Rep.  171,  52  So.  799;  Phomiz 
Ins.  Co.  v.  Public  Parks  Amusement  Co.  63 
Ark.  187,  37  S.  W.  959;  Pirie  v.  Chicago 
Title  &  T.  Co.  182  U.  &  438,  444,  45  L. 
ed.  1171,  1176,  21  Sup.  Ct.  Rep.  906;  Pom. 
£q.  Jur.  §§  105,  167,  368,  1046,  1161,  1263, 
1406;  Powers  v.  Burdick,  126  App.  Diy. 
179,  110  N.  Y.  Supp.  883;  Queen  Ins.  Go. 
y.  May,  —  Tex.  Civ.  App.  — ,  35  S.  W.  820; 
1  Remington,  Bankr.  2d  ed.  §  20;  Rumaey 
y.  Phcsnix  Ins.  Co.  17  Blatchf.  527,  1  Fed. 
396;  Snyder  v.  Murdock,  51  Mo.  175;  Stone 
y.  Waite,  88  Ala.  590,  7  So.  117 ;  Story,  £q. 
Jur.  §  1217,  and  note;  Sumner  y.  Wood,  67 
Ala.  130,  42  Am.  Rep.  104;  Re  Sunflower 
State  Ref.  Co.  115  C.  C*  A.  132,  105  Fed. 
180;  Tufts  V.  Brace,  103  Wis.  344,  70  N. 
W.  414;  Tufts  v.  Griffin,  107  N.  C.  47,  10 
L.R.A.  526,  22  Am.  St.  Rep.  863,  12  8. 
E.  68;  Tufts  y.  Wynne,  45  Mo.  App.  42; 
United  Shoe  Machinery  Co.  v.  Ram  lose,  231 
Mo.  528,  132  S.  W.  1133;  United  States 
y.  00  Diamonds,  2  L.RA.(N.S.)  185,  72 
C.  C.  A.  0,  130  Fed.  070;  1  Washb.  Real 
Prop.  4th  ed.  *500;  Westchester  F.  Ina. 
Co.  V.  Weaver^  70  Md.  540,  5  L.RA.  478, 
17  Atl. -401,  18  Atl.  1034;  1  Whart.  Contr. 
§  617;  Whitlock  v.  Auburn  Lumber  Co.  145 
N.  C.  120,  12  L.RA.(N.S.)  1214,  58  8.  W. 
000;  Williston,  Sales,  §§  22,  304,  326,  331, 
332,  334;  6  Words  &  Phrases,  pp.  5608, 
5604. 

A  contract  executed  in  October,  1011,  and 
not  recorded  until  May  15,  1012,  is  void  as 
to  all  intermediate  creditors,  notwithstand- 
ing that  no  creditor  held  a  lien  prior  to  the 
recording. 

2S9  V.  S. 


1915. 


BAILEY  T.  BAKER  ICE  3IACH.  CX). 


Abcrnathy  v.  liladden,  91  Kan.  809,  139 
Pac.  431;  American  Lead  Pencil  Co.  T. 
Champion,  57  Kan.  352.  46  Pac.  696;  Re  At- 
lanta News  Pub.  Co.  160  Fed.  622;  Baker 
▼.  Parkhurat,  119  Mich.  645,  78  N.  W.  643; 
Baldwin  v.  Crow,  86  Ky.  679,  7  S.  W. 
146;  L.  A.  Becker  Co.  v.  Gill,  124  C.  C. 
A.  170,  20G  Fed.  36;  Re  Beckhaus,  100  C. 
O.  A.  561,  177  Fed.  141;  Blake  v.  Meadows, 
225  Iklo.  1,  30  L.R.A.(N.S.)  1,  123  S.  W. 
868;  Dowles  v.  Jonea,  123  Ky.  395,  96  S. 
\V.  1121;  Re  Bothe,  97  C.  C.  A.  647,  173 
Fed.  507;  Re  Braselton,  169  Fed.  960; 
Brown  v.  Brabb,  67  Mich.  17,  11  Am.  St. 
Rep.  549,  34  N.  W.  403;  Cameron  t.  Marvin, 

26  Kan.  612;  Re  Cannon,  121  Fed.  682; 
Clift  V.  Williams,  106  Ky.  669,  49  S.  W. 
328,  61  S.  W.  821;  Crucible  Steel  Co.  v. 
Holt,  98  C.  C.  A.  101,  174  Fed.  127 ;  6  Cyc 
1071;  16  Cyc.  681;  Dayton  t.  People's  Say. 
Bank,  23  Kan.  421;  Dempsey  v.  Pforz- 
heimer,  86  Mich.  652,  13  L.RJL.  388,  49  N. 
W.  465;  Detroit  Trust  Co.  v.  Pontiac  Sav. 
Bank,  237  U.  S.  186,  69  L.  ed.  907,  35  Sup. 
Ct.  Rep.  609;  Dixon  v.  Tyree,  92  Kan.  137, 
139  Pac.  1026;  Re  Doran,  83  C.  C.  A.  265, 
154  Fed.  467 ;  Re  Ducker,  67  C.  C.  A,  117, 
134  Fed.  43;  Fearey  v.  Cummings,  41  Mich. 
376,  1  N.  W.  946;  First  Nat.  Bank  v.  Con- 
nett,  5  L.RJL.(N.S.)  148,  73  C.  C.  A.  219, 
142  Fed.  37;  Gagnon  v.  Brown,  47  Kan.  83, 

27  Pac.  104;  Geiser  Mfg.  Co.  t.  Murray, 
84  Kan.  450,  L.RJL.— ,  — ,  114  Pac.  1046; 
Re  Hamden,  200  Fed.  176;  Harrison  ▼. 
South  Carthage  Min.  Co.  96  Mo.  App.  83, 
68  S.  W.  963;  Hilliard  v.  Cagle,  46  Miss. 
309;  Holt  y.  Crucible  Steel  Co.  224  U.  S. 
262,  66  L.  ed.  766,  32  Sup.  Ct.  Rep.  414; 
Hurley  v.  Atchison,  T.  &  S.  F.  R.  Co.  213 
U.  S.  126,  63  L.  ed.  729,  29  Sup.  Ct.  Rep. 
466;  Re  Huxoll,  113  C.  C.  A.  637,  193  Fed. 
851;  Re  Jacobson,  200  Fed.  812;  James  y. 
Gray,  1  L.R.A.(NJ3.)  321,  66  C.  C.  A.  385, 
131  Fed.  401;  Re  Johnson,  212  Fed.  311; 
Karst  V.  Gane,  136  N.  Y.  316,  32  N.  E. 
1073;  Kennedy  v.  Dawson,  96  Mich.  79, 
65  N.  W.  616;  Landis  v.  McDonald,  88  Mo. 
App.  335;  McAtee  v.  Shade,  107  G.  G.  A. 
612,  185  Fed.  442;  McElvain  y.  Hardesty, 
94  C.  C.  A.  399,  169  Fed.  34;  McVay  y. 
English,  30  Kan.  368,  1  Pac.  795;  Re  Mis- 
sion Fixture  &  Mantel  Co.  180  Fed.  263; 
Moffat  V.  Bceler,  91  Kan.  209,  137  Pac.  963, 
Ann.  Gas.  1915G,  602;  Noyes  y.  Brace,  8 
S.  D.  190,  65  N.  W.  1071;  Re  O'Callaghan, 
30  Am.  Bankr.  Rep.  97;  Re  Palmer,  218 
Fed.  74;  Parshall  v.  Eggert,  64  N.  Y.  18; 
Paul  y.  Lingenfelter,  89  Kan.  872,  132  Pac. 
1179;  Re  Peasley,  137  Fed.  190;  People 
use  of  Esper  y.  Bums,  161  Mich.  174,  137 
Am.  St.  Rep.  466,  126  N.  W.  740;  Post  y. 
Berry,  99  C.  C.  A.  186,  175  Fed.  564; 
Putnam  y.  Rejmolds,  44  Mich.  113,  6  N. 
W.  198;  Re  Riehl,  200  Fed.  466;  Roe  T. 
•0  lis  ed. 


Meding,  53   N.  J.  Eq.  350,  88   AiL  394; 

I  Ruggles  y.  Cannedy,  127  CaL  290,  46  L.RJi. 
371,  63  Pac.  911,  59  Pac.  827;  Sanger  t. 
Guenther,  73  Wis.  364,  41  N.  W.  436;  Sedg- 
wick City  Bank  y.  Wichita  Mercantile  Co. 
45  Kan.  346,  25  Pac  888;  Simmons  y. 
Greer,  98  G.  C.  A.  408,  174  Fed.  664;  Skil- 
ton  y.  Codington,  186  N.  Y.  80,  113  Am.  St. 
Rep.  885,  77  N.  E.  790;  Standard  Paper  Co. 
y.  Guenther,  67  Wis.  101,  30  N.  W.  298; 
Swafford  y.  Asher,  31  Ky.  L.  Rep.  1338,  105 
S.  W.  164;  Thompson  y.  Van  Vechten,  27 
N.  Y.  668;  Union  Nat.  Bank  y.  Glum,  3 
N.  D.  201,  44  Am.  St.  Rep.  533,  64  N.  W. 
1034;  Re  Wade,  185  Fed.  664;  Wicks  Bros. 
y.  McConneU,  102  Ky.  434,  43  S.  W.  206; 
Wm.  B.  Grimes  Dry  Goods  Co.  y.  McKee, 
61  Kan.  704,  33  Pac  594;  Williams  y.  Kirk, 
68  Mo.  App.  461;  Youngberg  y.  Walsh,  72 
Kan.  221,  83  Pac.  972;  Williamson  y.  New 
Jersey  Southern  R.  Co.  29  N.  J.  Eq.  336. 

The  seller  haying  taken  negotiable  prom- 
issory notes  from  the  purchaser,  thereby 
electing  to  make  the  liability  of  the  pur- 
chaser absolute  the  sale  was  not  condi- 
tional. 

Babbitt  y.  Moore,  61  N.  J.  L.  229,  17  Atl. 
99;  First  Nat.  Bank  y.  Alton,  60  Conn.  402, 
22  Atl.  1010;  Bannister  y.  Rouse,  44  Mich. 
428,  6  N.  W.  870;  Bick  y.  Clark,  184  Mo. 
App.  644,  114  S.  W.  1144;  Bigelow,  Bills, 
Notes  &  Cheques,  2d  ed.  §  6,  pp.  32,  33, 
35,  36,  40;  Choate  y.  Steyens,  116  Mich. 
28,  43  UELA.  277,  74  N.  W.  289;  Chicago 
R.  Equipment  Co.  y.  Merchants'  Nat.  Bank, 
136  U.  S.  268,  34  L.  ed.  349,  10  Sup.  Ct. 
Rep.  999;  7  Cyc.  632,  697;  1  Dan.  Neg. 
Inst.  §S  1,  28,  30,  41,  52,  69,  80;  Eaton 
^  G.  Comp.  Paper,  pp.  175,  656,  §§  20, 
24;  First  Nat.  Bank  y.  Greenyille  Nat 
Bank,  84  Tex.  40,  19  S.  W.  334;  Harkness 
y.  Russell,  118  U.  S.  664,  30  L.  ed.  286, 
7  Sup.  Ct  Rep.  61;  Killam  y.  Schoeps,  26 
Kan.  310,  40  Am.  Rep.  313;  Oyerton  y. 
Tyler,  3  Pa.  St.  346,  45  Am.  Dec.  646; 
Schneider  y.  Schiffman,  20  Mo.  571;  Schmidt 
V.  Pegg,  172  Mich.  169,  137  N.  W.  624; 
Sloan  y.  McCarty,  134  Mass.  245;  South 
Bend  Iron  Works  y.  Paddock,  37  Kan.  610, 
15  Pac  574;  Third  Nat.  Bank  y.  Armstrong, 
25  Minn.  530;  Worden  Grocer  Co.  y.  Bland- 
ing,  161  Mich.  264,  126  N.  W.  212,  20  Ann. 
Gas.  1322 ;  Wright  y.  Trayer,  73  Mich.  493, 
3  L.RJL.  60,  41  N.  W.  517. 

The  circuit  court  of  appeals  erred  in  mak- 
ing an  order  of  unconditional  return  of  the 
machinery.  The  rights  of  seller  and  pur- 
chaser are  determinable  according  to  con- 
tract and  principles  of  equity. 

C.  Aultman  &  Co.  t.  Olson,  43  Minn.  409, 
45  N.  W.  862;  Barton  t.  Mulyane,  59  Kan. 
313,  52  Pac  883;  Cole  y.  Hinea,  81  Md.  476, 

1 32   LJUL  456,  32  Atl.   196;    Dederiok  t. 

'  Wolfe,  68  MiM.  500,  24  Am.  St.  R^.  283, 

18S 


271 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cot.  Tkbm, 


10  So.  64;  Drew  t.  Pedlar,  87  Cal.  443,  22 
Am.  St.  Rep.  257,  25  Pac.  749;  Duncan  v. 
Stone,  45  Vt.  118;  Earle  v.  Robinson,  30 
N.  Y.  Supp.  178;  Fleck  v.  Warner,  25  Kan. 
492:  Hamilton  v.  Highlands,  144  N.  C. 
270,  56  S.  E.  029,  12  Ann.  Gas.  876;  Hamil- 
ton V.  Singer  Mfg.  Co.  54  111.  371;  Harkness 
V.  Russell,  118  U.  S.  663,  30  L.  ed.  285, 
7  Sup.  Ct.  Rep.  51;  Hays  v.  Jordan,  85  Ga. 
741,  9  L.R.A.  373,  11  S.  E.  833;  Hill  v. 
Towiisend,  69  Ala.  286;  Hine  ▼.  Roberts,  48 
Conn.  207,  40  Am.  Rep.  170;  Latham  v. 
Davis,  44  Fed.  862;  Loomis  v.  Bragg,  50 
Conn.  228,  47  Am.  Rep.  638;  Meagher  v. 
Hollonlierg,  9  Lea.  392;  Minneapolis  Har- 
vester Works  V.  Hally,  27  Minn.  495,  8  N. 
\V.  597;  Moultrie  Repair  Co.  v.  Hill,  120 
Ga.  730,  48  S.  E.  143;  Perkins  v.  Grobben, 
lie  ^lich.  172,  39  L.R.A.  815,  72  Am.  St. 
Kcp.  .il2,  74  N.  \V.  469;  Preston  v.  Whit- 
ney, 23  Mich.  260;  A.  D.  Puffer  &  Sons  Mfg. 
Co.  V.  Lucas,  112  N.  C.  377,  19  L.R.A.  682, 
17  S.  E.  174;  Ross-Meehan  Brake  Shoe 
Foundry  Co.  v.  Pascagoula  Ice  Co.  72  Miss. 
(>08,  18* So.  364;  Shafer  v.  Russell,  28  Utah, 
444,  79  Pac.  559;  Segrist  v.  Crabtree,  131 
U.  8.  287,  292,  33  L.  ed.  125,  127,  9  Sup. 
Ct.  Rep.  687;  Snook  v.  Raglan,  89  Ga.  251, 

15  S.  E.  364;  Tufts  v.  D'Arcambal,  85 
3Iich.  185,  24  Am.  St.  Rep.  79,  12  L.R.A. 
446,  48  N.  W.  497 ;  White  v.  A.  W.  Gray*s 
Sons,  96  App.  Div.  154,  89  N.  Y.  Supp.  481 ; 
Scott  V.  Glover,  7  Ga.  App.  182. 

If  machinery  is  to  be  returned,  the  holder 
of  an  outstanding  chattel  mortgage  should 
be  cited  before  final  decree  is  entered. 

Riverside  &  D.  River  Cotton  Mills  v.  Men- 
efee,  237  U.  S.  189,  193,  59  L.  ed.  910,  912, 
35  Sup.  Ct.  Rep.  579;  Ray  v.  Norseworthy, 
23  Wall.  128,  135,  23  L.  ed.  116,  118;  Re 
Platteville  Foundry  &  Mach.  Co.  147  Fed. 
828;  Re  Crowell,  199  Fed.  659;  McKay  v. 
Ilamill,  107  C.  C.  A.  115,  185  Fed.  11; 
2  Remington,  Bankr.  2d  ed.  §  1889;  Black, 
Bankr.  §  471. 

Possession  is  prima  facie  evidence  of 
ownership,  and  one  who  permits  another 
to  remain  in  possession  of  property  belong- 
ing to  him  is  estopped  to  reclaim  his  own 
property  as  against  one  who  changes  his 
position  upon  the  faith  and  strength  of 
such  ownership. 

Elkus  &  G.  Secret  Liens  &  Reputed  Owner- 
ship; Mai-tin  v.  Mathiot,  14  Serg.  &  R.  214, 

16  Am.  Dec.  491;  Robinson  t.  Elliott,  22 
Wall.  513,  525,  22  L.  ed.  758,  763;  Sexton  v. 
Wheaton,  8  Wheat.  229,  244,  5  L.  ed.  603, 
(508;  Toflf  V.  Nelson,  109  N.  Y.  316,  16  N. 
E.  360:  Casey  v.  Cavaroc,  96  U.  S.  467, 
484,  24  L.  ed.  779,  786. 

Mr.  H.  C.  Drome  argued  the  cause,  and, 
with  Mr.  Clinton  Brome,  filed  a  brief  for  ap- 
pellee : 

When  the  trustee  in  bankruptcy  takes 
281 


possession  of  property  that  is  not,  and  never 
has  been,  a  part  of  the  bankrupt  estate, 
possession  having  been  obtained  by  the  bank- 
rupt by  means  of  a  contract  expressly  re* 
serving  the  title  in  the  seller  until  the  pur- 
chase price  is  paid,  and  this  contract  is  of 
record  agreeably  to  the  laws  of  the  state 
prior  to  the  fi[d judication  in  bankruptcy, 
the  trustee  takes  the  interest  of  the  bank- 
rupt, and  no  more;  that  is,  he  may  retain 
the  property  for  the  benefit  of  the  estate, 
but  he  must,  in  that  event,  pay  the  \mpaid 
portion  of  the  purchase  price;  failing  to 
do  this,  he  must  surrender  the  property  to 
its  true  owner. 

Re  Farmers'  Co-Op.  Co.  202  Fed.  1005. 

A  transfer  amounting  to  a  preference 
contemplated  the  parting  with  the  bank- 
rupt's property  for  the  benefit  of  the  credit- 
or, and  the  subsequent  diminution  of  the 
bankrupt's  estate. 

New  York  County  Nat.  Bank  v.  Massey, 
192  U.  S.  138,  48  L.  ed.  380,  24  Sup.  Ct.  Rep. 
199. 

The  effort  to  place  conditional  sales,  that 
do  not  diminish  the  bankrupt's  estate,  in 
the  same  category  with  chattel  mortgages, 
that  do  diminish  his  estate,  must  fail,  llie 
contention  that  the  statute  of  Kansas,  aa 
construed  by  the  supreme  court  of  that 
state,  has  that  effect,  is  sufficiently  an- 
swered by  the  circuit  court  of  appeals  for 
the  eighth  circuit  in  Big  Four  Implement 
Co.  V.  Wright,  47  LJl.A.(N.S.)  1223,  125 
C.  C.  A.  577,  207  Fed.  534.  The  facts  in 
that  case  are  on  all  fours  with  the  facta 
of  the  case  at  bar. 

[271]  Mr.  Justice  Van  Devanter,  after 
making  the  foregoing  statement,  delivered 
the  opinion  of  the  court: 

The  referee  and  the  courts  below  held 
the  contract  to  be  one  of  conditional  sale; 
that  is,  one  making  full  payment  of  the 
purchase  price  a  condition  precedent  to  the 
passing  of  title;  and  this  is  criticized  by 
the  trustee,  who  insists  that  the  contract 
was  one  of  absolute  sale  with  a  chattel 
mortgage  back,  securing  the  deferred  in- 
stalments. 

In  harmony  with  the  prevailing  view,  the 
statutes  of  Kansas  and  the  decisions  of  the 
supreme  court  of  the  state  recognize  that 
there  is  a  real  distinction  between  a  condi- 
tional sale  and  an  absolute  sale  with  a 
mortgage  back,  in  that,  under  the  former, 
the  vendor  remains  the  owner,  subject  to 
the  vendee's  right  to  acquire  the  title  by 
complying  with  the  stipulated  condition^ 
while  under  the  latter  the  vendee  imme- 
diately becomes  the  owner,  subject  to  the 
lien  created  by  the  mortgage.  Gen  Stat. 
1909,  §§  5224-5220,  5232-.V2.S4.  5237;  Sum- 
ner v.  McFarlan,  15  Kan.  liOd;  llallowell  v. 

239  U.  S. 


1915. 


BAILEY  ▼.  BAKER  ICE  MACH.  CO. 


271-273 


Xilne,  16  Kan.  Go;  Hall  v.  Draper,  20  Kan. 
137;  Standard  Implement  Co.  v.  Parlin  & 
O.  06.  51  Kan.  644,  33  Pac.  360;  Moline 
Plow  Co.  V.  Witham,  52  Kan.  185,  34  Pac. 
761;  Big  Four  Implement  Co.  v.  Wright, 
47  L.R.A.(N.S.)  1223,  125  C.  C.  A.  577, 
207  Fed.  535.  In  Hall  v.  Draper,  the  true 
effect  of  a  contract  of  conditional  tale  was 
drawn  in  question,  and  the  court  said, 
speaking  through  Justice  Brewer,  after- 
wards a  member  of  this  court:  "The  title, 
and  all  the  rights  of  control  and  possession 
flowing  from  title,  were  theirs  [the  vendors'], 
except  as  in  terms  restricted  by  the  con- 
tract, llie  only  limitations  upon  their  full 
control  of  the  organ  were  those  created  by 
this  instrument;  and  the  only  rights  Lever- 
idge  [the  vendee]  had  were  those  obtained 
by  it.  In  this  respect  such  a  conditional 
sale  differs  from  an  absolute  sale  with  a 
mortgage  back.  In  such  case  the  vendee 
has  everything  except  as  limited  by  the 
terms  of  the  mortgage.  Here  he  has  noth- 
ing except  as  expressed  [272]  in  his  con- 
tract." True,  in  Christie  v.  Scott,  77  Kan. 
257,  94  Pac.  214,  there  is  general  language 
which,  if  taken  broadly,  makes  against  this 
distinction.  But,  according  to  a  familiar 
rule  (Cohen  v.  Virginia,  6  Wheat.  264,  399, 
5  L.  ed.  267,  290;  Pacific  Exp.  Co.  v.  Foley, 
46  Kan.  457,  464,  12  L.H.A.  799,  26  Am. 
St.  Rep.  107,  26  Pac.  665),  this  language 
should  be  regarded  as  restrained  by  the 
circumstances  in  which  it  was  used.  The 
ease  did  not  present  a  controversy  over 
property  conditionally  sold,  but  only  the 
question  whether  the  contract  there  shown 
entitled  the  vendor,  after  reclaiming  the 
property  and  crediting  the  proceeds  upon 
the  purchase  price,  to  enforce  payment  of 
the  balance  by  the  vendee.  Without  criti- 
cizing or  referring  to  cases  like  Hall  v. 
Draper,  the  court  concluded  its  discussion 
of  the  question  by  saying:  'IJnder  the  con- 
tract attached  to  these  notes,  we  hold  that 
the  plaintiff  was  authorized  to  take  the 
property  and  sell  it  and  apply  the  proceeds 
toward  the  payment  of  the  notes,  and  that 
by  so  doing  the  law  does  not  imply  a  revo- 
cation of  the  contract  of  sale,  nor  does  the 
law  imply  that  there  remains  no  considera- 
tion for  the  payment  of  the  balance  due  on 
the  notes."  It  therefore  is  plain  that  we 
ought  not  to  treat  the  decision  as  over- 
ruling or  qualifying  those  before  men- 
tioned. 

In  jurisdictions  where  regard  is  had  for 
the  distinction  here  indicated  between  a 
conditional  sale  and  an  absolute  sale  with 
a  mortgage  back,  the  question  whether  a 
particular  contract  shows  one  or  the  other 
turns  upon  the  ruling  intention  of  the  par- 
ties as  disclosed  by  the  entire  contract,  and  I 
not  upon  any  single  provision  separately 
€0  Ij.  ed. 


considered.  Invoking  this  test,  the  trustee 
contends  that  this  contract  was  one  of  abso- 
lute sale  with  a  mortgage  back,  notwith- 
standing the  stipulation  that  the  title 
should  be  and  remain  in  the  vendor  until 
full  payment.  The  contention  does  not  ap- 
pear to  have  support  in  any  decision  of 
the  supreme  court  of  Kansas,  and  in  our 
opinion  is  not  tenable.  Requiring  the  vendee 
to  give  notes  for  the  deferred  instalments 
of  the  purchase  price  was  not  inconsistent 
[873]  with  the  retention  of  title  in  the  vend- 
or pending  payment  of  the  notes.  William 
W.  Bieroe  v.  Hutchins,  205  U.  S.  340,  348,  51 
L.  ed.  828,  834,  27  Sup.  Ct  Rep.  524.  Nor 
did  any  inconsistency  result  from  the  pro- 
visions relating  to  rent,  damage,  and  insur- 
ance. Instead  of  making  against  the  re- 
tention of  ownership  by  the  vendor,  they 
were  in  harmony  with  it,  and  doubtless 
were  adopted  upon  the  theory  that  the 
vendee,  who  was  to  have  the  possession  and 
use  of  the  property,  should  bear  the  bur- 
den of  preserving  and  insuring  it,  and,  if 
the  purchase  price  was  not  paid,  should  not 
only  return  ^e  property,  but  compensate 
the  vendor  for  its  use  and  any  damage  to 
it.  In  Harkness  v.  Russell,  118  U.  S.  663, 
30  L.  ed.  285,  7  Sup.  Ct.  Rep.  51,  a  cX>ntract 
was  held  to  be  one  of  conditional  sale,  al- 
though entitling  the  vendor  to  rental  and 
damages  if  the  price  was  not  paid;  and  in 
Bryant  v.  Swofford  Bros.  Dry  Goods  Co. 
214  U.  S.  279,  53  L.  ed.  997,  29  Sup.  Ct. 
Rep.  614,  there  was  a  like  holding,  not- 
withstanding the  vendee  was  required  to 
keep  tlie  property  insured  for  the  benefit  of 
the  vendor,  and,  if  it  was  destroyed  by  fire, 
was  to  remain  liable  for  the  purchase  price. 
In  neither  case  was  the  retention  of  own- 
ership by  the  vendor  deemed  inconsist- 
ent with  the  other  features  of  the  contract. 
Coming  to  the  provision  relating  to  a  me- 
chanics' lien,  we  think  it  did  no  more  than 
reserve  to  the  vendor  a  privilege  or  option 
to  file  and  enforce  such  a  lien.  It  well 
may  be  that  the  exercise  of  this  privilege 
would  have  been  inconsistent  with  a  con- 
tinued assertion  of  title  by  the  vendor. 
William  W.  Bierce  v.'  Hutchins,  205  U.  S. 
346,  51  L.  ed.  833,  27  Sup.  Ct.  Rep.  524. 
But  the  privilege  was  not  exercised,  and  it 
hardly  can  be  said  that  its  mere  reserva- 
tion nullified  the  exoress  words  of  the  stipu- 
lation concerning  the  title.  That  it  was 
not  intended  to  do  so  seems  manifest  when 
the  entire  contract  is  considered. 

We  therefore  are  of  opinion  that  the  con- 
tract was  rightly  held  to  be  one  of  con- 
ditional sale. 

The  question  next  to  be  considered  is 
whether  the  contract  operated  as  a  prefer- 
ential transfer  by  Grant  Brothers  within 
the  meaning  of  §  60b  of  the  bankruptcy 

285 


273-276 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cot.  Tknc, 


act,  as  [274]  amended  June  25,  1910,  chap. 
412,  36  Stat,  at  L.  838,  842,  Comp.  SUt. 
1913,   §§   9586,   9644,  which  declares  that 
"a   transfer"    by   a   bankrupt   "of   any   of 
his    property"    shall    be    voidable    by    the 
trustee,  if  it  be  made  or  recorded   (when 
recording  is  required)   within  four  months 
before  the  petition  in  bankruptcy  is  filed, 
and   "the  bankrupt  be   insolvent  and   the 
.     .     .     transfer  then  operate  as  a  pref- 
erence^" etc.     The  section  leaves  no  doubt 
that  to  be  within   its  terms  the  transfer 
must  be  one  which  a  bankrupt  makes  of 
his  own   property  and  which   operates  to 
prefer    one    creditor    over    others;    and    if 
further  light  be  needed  tiiere  is  a  declara- 
tion  in   the  bankruptcy  act    (§   1,   clause 
25)     that    the    word    "transfer"    shall    be 
taken   to   include   every   mode  "of   dispos- 
ing of  or  parting  with   property,   or   the 
possession  of  property,  absolutely  or  con- 
ditionally, as  a  payment,  pledge,  mortgage, 
gift,   or   security."      [30   Stat,   at   L.    545, 
chap.  541,  Ck>mp.  Stat.  1913,  §  9585.]     It 
therefore  is  plain  that  §  60b  refers  to  an 
act  on  the  part  of  a  bankrupt  whereby  he 
surrenders  or   encumbers   his  property   or 
some  part  of  it  for  the  benefit  of  a  par- 
ticular creditor,  and  thereby  diminishes  the 
estate  which  the  bankruptcy  act  seeks  to 
apply  for  the  benefit  of  all  the  creditors. 
New  York   County  Nat.   Bank  v.  Massey, 
192  U.  S.  138,  147,  48  L.  ed.  380,  384,  24 
Sup.  Ct.  Rep.  199.     Applying  this  test  to 
the  contract  in  question,  we  think  it  did 
not  operate  as  a  preferential  transfer  by 
Qrant  Brothers,  the  bankrupts.    The  prop- 
erty to  which  it  related  was  not  theirs,  but 
the  Baker  Company's.    The  ownership  was 
not   transferred,   but   only   the   possession, 
and  it  was  transferred  to  the  bankrupts, 
not  from  them.    Being  only  conditional  pur- 
chasers, they  were  not  to  become  the  own- 
ers until  the  condition  was  performed.    No 
doubt  the  right  to  perform  it  and  thereby 
to  acquire  the  ownership  was  a  property 
right.    But  this  right  was  not  surrendered 
or   encumbered.     On   the  contrary,   it  re- 
mained with  the  bankrupts  and  ultimately 
passed  to  the  trustee,  who  was  free  to  exer- 
cise it  for  the  benefit  of  the  creditors.    So, 
there  was  no  diminution  of  the  bankrupts' 
estate. 

[875]  Under  the  recording  law  of  Kansas 
a  contract  of  conditional  sale  is  valid  be- 
tween the  parties,  whether  filed  for  record  or 
not,  but  is  void  as  against  a  creditor  of  the 
vendee  who  fastens  a  lien  upon  the  property 
by  execution,  attachment,  or  like  legal  proc- 
efin  before  the  contract  is  filed  for  record. 
Gen.  Stat.  1909,  §  5237;  McVay  v.  Eng- 
lish, 30  Kan.  368,  371, 1  Pac.  795;  American 
Ijead  Pencil  Co.  v.  Champion,  57  Kan.  352, 
357,  46  Pac.  696;  Youngberg  y.  Walsh,  72 

j9aB 


Kan.  220,  227,  83  Pac.  972;   Geiser  ICfg. 
Co.  V.  Murray,  84  Kan.  450,  L.R.A.— ,  — ^ 
114   Pac   1046;    Paul   v.   Lingenfelter,   99 
Kan.  871,  132  Pac.  1179;  Geppelt  v.  Middla 
West  Stone  Co.  90  Kan.  539,  544,  135  Pac. 
573;  Dixon  v.  Tyree,  92  Kan.  137,  189,  13» 
Pac.    1026;    Big    Four    Implement   Co.    v. 
Wright,  47  L.RJL.(N.S.)  1223,  125  C.  C.  A. 
577,  207  Fed.  535.    Here  the  contract  was 
made  October  14,  1911,  and  filed  for  record 
May  15,  1912.     In  the  meantime  no  credi- 
tor fastened  a  lien  upon  the  property  bf 
execution,  attachment,  or  other  legal  proc- 
ess.   But  it  is  contended  that  §  47a,  claus* 
2,  of  the  bankruptcy  act,  as  amended   in 
1010,  chap.  412,  36  SUt.  at  L.  838,  840, 
Comp.  Stat.  1913,  §§  9586,  9631,  gave  tho 
trustee  the  status  of  a  creditor  having  such 
a  lien.     That  section  provides  that  a  trus- 
tee in  bankruptcy,  "as  to  all  property  in 
the  custody  or  coming  into  the  custody  of 
the  bankruptcy  court,  shall  be  deemed  vest- 
ed with  all  the  rights,  remedies,  and  powers 
of  a  creditor  holding  a  lien  by  legal  or  equi- 
table proceedings."    Although  otherwise  ex- 
plicit, this  provision  does  not  designate  the 
time  as  of  which  the  trustee  is  to  be  re- 
garded as  having  acquired  the  status  in- 
dicated, and  yet  some  point  of  time  must 
be  intended.    Is  it  the  date  of  the  trustee'a 
appointment,  the  filing  of  the  petition   in 
bankruptcy,  or  some  time  anterior  to  both? 
When  not  otherwise  specially  provided,  the 
rights,  remedies,  and  powers  of  the  trustee 
are  determined  with  reference  to  the  condi- 
tions existing  when  the  petition  is  filed.    It 
is  then  that  the  bankruptcy  proceeding  is 
initiated,  that  the  hands  of  the  bankrupt 
and  of  his  creditors  are  stayed,  and  that  his 
estate  passes  actually  or  potentially   inta 
the  control  of  the  bankruptcy  court.     We 
have  said:  "The  filing  of  the  petition  of  an 
[276]  assertion  of  jurisdiction  with  a  view 
to    the    determination    of    the    status    of 
the   bankrupt   and   a   settlement  and   dis- 
tribution   of    his    estate.      The    exclusive 
jurisdiction    of    the    bankruptcy    court    is 
so  far  in  rem  that  the  estate  is  regard- 
ed  as    in    cu9todia   legis   from    the   filing 
of    the    petition.''      Acme    Harvester    Go. 
V.  Beekman  Lumber  Co.  222  U.  S.  300,  307» 
56  L.  ed.  208,  213,  32  Sup.  Ct.   Rep.   96. 
And  again :    "We  think  that  the  purpose  of 
the  law  was  to  fix  the  line  of  cleavage  with 
reference  to  the  condition  of  the  bankrupt 
estate  as  of  the  time  at  which  the  petition 
was  filed,  and  that  the  property  which  vesta 
in  the  trustee  at  the  time  of  adjudication 
is  that  which  the  bankrupt  owned  at  the 
time  of  the  filing  of  the  petition."    Everett 
V.  Judson,   228   U.  S.   474,  479,  57   L.   ed. 
927,    929,  /  46    L.R.A.(N.S.)    154,    33    Sup. 
Ct.  Rep.   568.     And  sec  Zavelo  v.  Reeves, 
227  U.  S.  625,  631,  57  L.  ed.  676,  678,  33 

239  U.  S. 


1915. 


PHOENIX  R.  00.  T.  QSABY. 


276»  277 


8np.  Ct.  Rep.  365,  Ann.  Gas.  1914D,  664. 
Had  it  been  intended  that  the  trustee  should 
take  the  status  of  a  creditor  holding  a  lien 
by  legal  or  equitable  process  as  of  a  time  an- 
terior to  the  initiation  of  the  bankruptcy 
proceeding,  it  seems  reasonable  to  beliere 
that  some  expression  of  that  intention  would 
have  been  embodied  in  $  47a  as  amended. 
As  this  was  not  done,  we  thittk  the  better 
Tiew,  and  one  which  accords  with  other  pro- 
Tisions  of  the  act,  is  that  the  trustee  takes 
the  status  of  such  a  creditor  aa  of  the  time 
when  the  petition  in  bankruptcy  is  filed. 
Here  the  petition  was  filed  almost  two 
months  after  the  contract  was  filed  for  rec- 
ord, and  therefore  the  trustee  was  not  en- 
titled to  assail  it  under  the  recording  law  of 
the  state. 

The  record  shows  that  between  the  date 
off  the  contract  and  the  time  it  was  filed  for 
record  the  bankrupts  mortgaged  the  machine 
to  the  First  National  Bank  of  Horton,  and 
that  the  bank,  although  apparently  assert- 
ing some  right  under  the  mortgage,  was  not 
brought  into  the  present  proceeding.  In  this 
situation,  our  decision  and  that  of  the  Oir- 
euit  Court  of  Appeals  must  be  understood 
to  be  without  prejudice  to  further  proceed- 
ings respecting  the  rights,  if  any,  existing 
under  that  mortgage. 

Decree  affirmed. 


[«77]    PHCENIX   RAILWAY    COMPANY 
OF  ARIZONA,  Appt., 

V. 

W.  PAUL  GEART,  Frank  A.  Jones,  and 
Amos  W.  Cole,  Members  of  the  Corpora- 
tion Commission  of  the  State  of  Arisona, 
etaL 

(See  S.  C.  Reporter's  ed.  277-283.) 

Injunction  —  against  state  ofHclala  — 
confiscation. 

1.  A  clear  case  of  unreasonable,  arbi- 
trary, or  confiscatory  action  on  the  part 
^  a  State  Corporation  Commission  in  di- 
recting a  street  railway  company  to  double- 
track  one  of  its  lines  for  a  specified  dis- 
tance must  be  made  before  a  Federal  court 
may  restrain  the  enforcement  of  the  Com- 
mission's order  by  an  interlocutory  injunc- 
tion. 

[For  other  cases,  tee  Injunction,  I.  ].  in  Di- 
gest Sap.  Ct.  1008.] 

Appeal  —  scope  of  review  —  partial  in- 

Talidlty  of  state  legislation. 

2.  The  Federal  Supreme  Court,  on  an 

Note. — ^As  to  injunction  to  restrain  acts 
of  public  ofiScers — see  note  to  Mississippi 
V.  Johnson,  18  L.  ed.  U.  S.  437. 
On  statutes  part  valid  and  part  invalid — 
c  notes  to  Titusville  Iron  Works  v.  Key- 
stone Oil  Co.  1  L.R.A.  363;  and  Fayette 
County  V.  People's  &  D.  Bank,  10  hJLA, 
196. 
•0  h.  ed. 


appeal  from  a  decree  of  a  district  court  re- 
fusing to  grant  an  interlocutory  injunction 
to  restrain,  on  constitutional  grounda,  the 
enforcement  of  an  order  of  a  State  Cor- 
poration Conunission  directing  a  street  rail- 
way companv  to  double-track  one  of  its  lines, 
need  not  determine  the  validity  of  the  pen- 
alty provisions  of  the  Arizona  Constitution 
and  laws  applicable  to  publio  service  cor- 
porations, in  advance  of  an  attempt  to 
enforce  such  provisions,  where  they  are  clear- 
ly separable  from  the  order  of  the  Commis- 
sion and  the  constitutional  and  statutory 
provisions  under  which  it  was  made,  and 
are  not  relied  upon  by  appellant  except  as  a 

f round  for  invoking  the  jurisdiction  of  a 
ederal  court  in  equity. 
[For  other  cases,  see  Appeal  and  Brror,  VIIL 
e;  Statutes,  I.  d,  8;  I.  d,  4,  in  Digest  Sup. 
Ct.  1908.J  .         .    .  *• 

[No.  48.] 

Submitted  October  29,  1915.     Decided  No- 
vember 29,  1915. 

APPEAL  from  the  District  Court  of  the 
United  States  for  the  District  of  Ari- 
zona to  review  a  decree  refusing  to  grant 
an  interlocutory  injunction  to  restrain  the 
enforcement  of  an  order  of  the  State  Cor- 
poration Commission,  directing  a  street  rail- 
way company  to  double-track  one  of  its 
lines.    Aflirmed. 

See  same  case  below,  209  Fed.  694. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Alexander  Britton,  Ehrana 
Browne,  and  Francis  W.  Clements  sub- 
mitted tlic  cause  for  i^pellant.  Messrs. 
Louis  H.  Chalmers,  Edward  Kent,  and  Floyd 
M.  Stahl  were  on  the  brief: 

The  order  of  the  Arizona  Corporation 
Commission  sought  to  be  enjoined  was  with- 
out the  power  of  the  Ariz<ma  Corporation 
Commission. 

Missouri  P.  R.  Co.  v.  Nebraska,  217  U.  6. 
196,  54  L.  ed.  727,  30  Sup.  Ct  Rep.  461, 
18  Ann.  Cas.  989. 

The  order  of  the  Arizona  Corporation 
Commission  was  shown  to  be  unreasonable 
and  unnecessary,  and  therefore  violative 
of  the  14th  Amendment  to  the  Constitu- 
tion of  the  United  States. 

Washington  ex  rel.  Oregon  R.-  &  Nav.  Co. 
V.  Fairchild,  224  U.  S.  510,  56  L.  ed.  863, 
32  Sup.  Ct.  Rep.  535;  Missouri  P.  R.  Co. 
V.  Nebraska,  supra;  Washington,  P.  &  C. 
R.  Co.  V.  Magruder,  198  Fed.  231. 

In  view  of  the  relative  degree  of  injury 
to  the  respective  parties  by  the  granting 
or  refusal  of  the  interlocutory  injunction 
prayed  for,  the  showing  of  the  appellant, 
presented  to  the  lower  court,  required  the 
issuance  of  an  injunction  pendente  lite, 

Washington,  P.  &  C.  R.  Co.  T.  Magruder, 
198  Fed.  232;  New  Memphis  Gas  &  Light 

187 


279-281 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


Co.  ▼.  Memphis,  72  Fed.  953;  Sanitary  Re- 
duction Works  y.  California  Reduction  Co. 
94  Fed.  696;  Carpenter  y.  KnoUwood  Ceme- 
tery, 188  Fed.  867;  Chicago  &  N.  W.  R.  Co. 
V.  Dey,  1  L.R.A.  744,  2  Inters.  Com.  Rep. 
325,  35  Fed.  881;  Irving  v.  Joint  Dist. 
Council,  U.  B.  C.  &  J.  180  Fed.  900 ;  Harri- 
man  v.  Northern  Securities  Co.  132  Fed. 
475;  Wilmington  City  R.  Co.  v.  Taylor, 
198  Fed.  197;  San  Joaquin  ^  K.  River 
Canal  &  Irrig.  Co.  v.  Stanislaus  County,  163 
Fed.  574;  Russell  v.  Farley,  105  U.  S.  403, 
438,  26  L.  ed.  1060,  1062;  Newton  ▼.  Lewis, 
25  C.  C.  A.  161,  49  U.  S.  App.  266,  79 
Fed.  715;  San  Francisco  Gas  k  Electric 
Co.  V.  San  Francisco,  164  Fed.  892;  Sea- 
board Air  Line  R.  Co.  v.  Railroad  Com- 
mission, 155  Fed.  808;  Pacific  Teleph.  & 
Teleg.  Co.  t.  Los  Angeles,  192  Fed.  1009; 
Ex  parte  Young,  209  U.  S.  123,  52  L.  ed. 
714,  13  L.R.A.(N.S.)  932,  28  Sup.  Ct.  Rep. 
441,  14  Ann.  Cas.  764;  Denver  &  R.  G.  R. 
Co.  Y.  United  States,  59  C.  C.  A.  579,  124 
Fed.  156. 

Mr.  Wiley  E.  Jones,  Attorney  General 
of  Arizona,  and  Messrs.  Ijeslie  C.  Hardy 
and  Eldward  M.  Cleary,  submitted  the 
cause  for  appellees.  Mr.  George  W.  Har- 
ben  was  on  the  brief: 

The  granting  or  refusing  of  an  injunction 
lies  within  the  discretion  of  the  court,  and 
should  not  be  exercised  except  in  a  clear 
case. 

Knoxrille  ▼.  Knorville  Water  Co.  212  U. 
S.  1,  53  L.  ed.  371,  29  Sup.  Ct.  Rep.  148; 
Ex  parte  Young,  209  U.  S.  123,  52  L.  ed. 
714,  13  L.R.A.(N.S.)  932,  28  Sup.  Ct.  Rep. 
441,  14  Ann.  Cas.  764. 

It  has  been  the  policy  of  this  court  in 
causes  which  involve  the  regulation  of  pub- 
lic utilities  by  legislative  and  administra- 
tive bodies  not  to  interfere  with  their  ac- 
tions unless  there  was  an  unreasonable  and 
arbitrary  regulation. 

San  Diego  Land  &  Town  Co.  t.  Na- 
tional City,  174  U.  S.  739-754,  43  L.  ed. 
1154-1160,  19  Sup.  Ct.  Rep.  804;  San  Diego 
Land  k  Town  Co.  v.  Jasper,  189  U.  S.  439, 
47  L.  ed.  892,  23  Sup.  Ct.  Rep.  571. 

Mr.  Justice  Pitney  delivered  the  opinion 
of  the  court: 

In  June,  1913,  the  Corporation  Conunis- 
sion  of  the  State  of  Arizona  made  an  order 
directing  appellant  to  double-track  its 
line  of  street  railway  on  West  Washington 
street  in  the  city  of  Phoenix,  in  that  state, 
between  Seventh  and  Seventeenth  avenues, 
— a  distance  of  ten  blocks;  the  work  to  be 
commenced  within  thirty  days  from  the  date 
of  the  order  and  completed  on  or  before 
September  1st.  By  a  subsequent  order  the 
time  for  completion  was  extended  until 
288 


December  Ist,  1913.    Having  unsuccessfully 
applied  to  the  Commission  for  a  rehearing, 
appellant  filed  its  present  bill  of  complaint 
in  the  United  States  district  court,  praying 
that   the   Commission's   order   be   declared 
null  and  void  as  in  contravention  of  the 
Constitution  of  the  United  States,  and  that 
the  defendants    (who  include  the  members 
of  the  Corporation  Commission,  the  attorney 
general  of  the  state,  and  the  county  attor- 
ney),   be   enjoined   from   enforcing   or   at- 
tempting to  enforce  it  by  [280]  suit,  pros- 
ecution, or  other  proceeding,  and  from  insti- 
tuting any  proceeding  for  the  recovery  of 
fines  or  penalties  for  any  violation  of  or  re- 
fusal to  obey  it;  the  ground  of  complaint  be- 
ing that  the  order  was  unjust  and  unreason- 
able because  the  service  already  rendered  up- 
on Washington  street  by  appellant  was  ade- 
quate and  efiicient;   that  the  construction 
of  a  double  track  was  not  required  by  the 
needs  of  the  public;  that  appellant's  operat- 
ing expenses  exceeded  its  revenues,  and  that 
it  was  unable  to  make  the  additional  ex- 
penditure of  about  $14,000  required  for  the 
double-tracking;  and  tiiat  compliance  with 
the   order   would   prevent   appellant   from 
making  an  adequate  return,  or  any  return 
at  all,  upon  the  value  of  its  property.    The 
bill  further  set  up  that,  under  the  Consti- 
tution and  statutes  of  Arizona,  complainant 
was  required,  under  severe  penalties,  to  put 
the  order  into  effect,  and  to  keep  it  in  effeot 
until  modified  or  abrogated,  and  that  while 
a  right  to  review  the  reasonableness  and 
lawfulness  of  the  order  in  a  state  court 
was  given  by  statute,  the  court  was  pro- 
hibited   from    issuing    any    injunction    or 
restraining  order  until  after  the  final  deter- 
mination of  the  matter,  and  in  the  mean- 
time the  order  would  be  in  full  force  and 
effect  and  must  be  obeyed,  under  heavy  pen- 
alties  for   each   day's   continuance   of   the 
violation;    and   it   was   alleged   that  these 
statutory  and  constitutional  provisions  were 
adopted  for  the  purpose  of  compelling  ac- 
quiescence in  *any  order  made  by  the  Cor- 
poration Commission,  and  preventing  a  re- 
sort to  the  courts  to  test  the  reasonableness* 
justness,  and  validity  thereof,  and  thus  had 
the  effect  of  depriving  complainant  of  its 
property  without  due  process  of  law,  and 
denying  to  it  the  equal  protection  of  the 
laws,  in  violation  of  the  14th  Amendment. 
Upon  the  filing  of  the  bill,  with  accom- 
panying affidavits,  a  temporary  restraining 
order  was  granted,  and  a  hearing  of  the 
application  for  interlocutory  injunction  was 
thereafter   had  before  three  judges  under 
the  provisions  of  §  266,  [281]  Judicial  Code 
(act  of  March  3,  1911,  36  Stat  at  L.  1087, 
1162,  chap.  231,  Comp.  Stat.  1913,  §§  968, 
1243).  The  court  held  (209  Fed.  694)  that 
complainant's  showing  as  to  the  alleged  un- 

289  V.  S. 


1915.  PHCENIX  R.  CO.  t.  QEARY.  281-288 

reasonableness  of  the  Commission's   order  of  substantial  inconTenienee  to  the  public 
WIS  not  sufficiently  strong  to  warrant  an  owing  to  the  fact  that  there  is  but  a  single 
injunction  to  restrain  its  enforcement  pen-  track   with   one   turnout  between   Seventh 
d«ite  lite,   but  the  temporary   restraining  and  Seventeenth  avenues,  and  some  evidence 
erdcr  was  continued  in  force  pending  the  tending  to  create  an  inference  that  the  reve- 
present  appeal,  taken  direct  to  this  court  nues  of  the  company  would  be  materially 
uider  the  eited  section  of  the  Code.  increased  by  the  double-tracking.    The  Com- 
The  jurisdiction   of  a  Federal  court  of  mission's  order  appears  to  have  been  made 
«{nity  over  the  subject-matter  is,  of  course,  after  full  hearing  and  investigation  respect- 
well  settled.     Ex  parte  Young,  209  U.  S.  ing  these  matters.     And,  upon  the  whole, 
123,   144,   52   L.   ed.    714,   722,    13   L.R.A.  we  agree  with  the  court  below  that  the  pre- 
(N.S.)  932,  28  Sup.  Ct.  Rep.  441,  14  Ann.  sumption  of  reasonableness  existing  in  favor 
€u.  764;   Minnesota  Rate  Cases   (Simpson  of  tJie  action  of  the  Commission   was  not 
▼.  Shepard)   230  U.  8.  352,  380,  57  L.  ed.  overcome   in   the   showing  that   was   made 
1511,  1534,  48  L.R.A.(N.S.)   1151,  33  Sup.  upon  the  application  for  an  injunction. 
Ct  Rep.  729;   Siler  v.  Louisville  ft  N.  R.       The    penalty    provisions,    except    as    a 
Co.  213  U.  8.  175,  190,  63  L.  ed.  753,  767,  ground  for  invoking  the  jurisdiction  of  a 
29  Sup.  Ct.  Rep.  451 ;   Louisville  ft  N.  R.  Federal  court  in  equity,  are  not  relied  upon 
Co.  ▼.  Garrett,  231  U.  8.  298,  303,  68  L.  by  appellant.     They  are  contained  in  cer- 
ed.  229,  238,  34  Sup.  Ct.  Rep.  48.  tain  sections  of  the  Constitution  and  stat- 
The  sole  question  raised  is  whether  the  utes  of  Arizona  applicable  to  public  serv- 
bill  of  complaint  and  supporting  affidavits,  ice    corporations.      Constitution,    art.    15, 
in  view  of  the  rebutting  affidavits  tiled  by  §§  16  and  17 ;  public  service  corporation  act, 
the  appellees,  made  so  clear  a  case  of  un-  Laws  1912,  chap.  90,  §§  65,  68,  74a  and  b, 
reasonable,  arbitrary,  or  confiscatory  action  76,  77,  79,  81;    Rev.  Stat.   1913,  §§  2341, 
on  the  part  of  the  Corporation  Commission  2344,  2350a  and  b,  2352,  2353,  2355,  2357. 
as  to  call  for  an  interlocutory  injunction.  They  are  clearly  separable  from  the  order 
Hie  attempt  was  to  show  that  there  was  of  the  Commission  and  the  constitutional 
BO  reasonable   necessity   for   the   Commis-  |ind    statutory    provisions   under   which   it 
sion's  order,  in  view  OPthe  character  of  the  was  made.    Const,  art.  15,  §  5;  public  serv- 
eommunity   to   be   served,   the    amount   of  ice  corporation  act.  Laws  1912,  chap.  90, 
traffic   over   the   line,   the   financial   condi-  §  36;  Rev.  Stat.  1913,  §  2312.    Therefore,  in 
tion   of   complainant,   the   nature   and   ex-  advance  of  an  attempt  to  enforce  the  pen- 
tent  of  the  service  already  rendered  and  ^j^^    ^^333    provisions,  we  need  not  pass 
eapable  of  being  rendered  with  the  existing  j^J       „^        „  them.   Grenada  Lumber  Co. 
facilities,  and  the  advantage  to  accrue  to  -^     °..    .    .     .   oit  tt  c  >«oo   ^^o   k>i  t    ^a 
tiie  public  as  compared  with  the  expend!-  ^'  ^»~*««ippi,  217  U.  8.  433,  443,  54  L.  ed. 
tores  to  be  susUined  by  complainsjat  in  826,  831,  30  Sup.  Ct.  Rep.  635;  Western  U. 
eomplying  with  the  order.     But  the  facts  Teleg.  Co.  v.  Richmond,  224  U.  S.  160,  172, 
and  the  inferences  were  much  in  dispute.  ^^  ^  ^'  7^^'  7^^'  ^^  Sup.  Ct.  Rep.  449; 
CompUinant  is  not  required  to  open  up  new  Minnesota  Rate  Cases    ( Simpson  v.   Shep- 
territory,  but  only  to  give  better  service  ^^^)   230  U.  S.  352,  380,  67  L.  ed.  1511, 
upon  a  street  already  occupied  by  it  un-  1534,  48   L.R.A.(N.S.)    1161,  33   Sup.   a. 
der  a  public  franchise.    lU  line  of  railway  R«P-  729;  Louisville  ft  N.  R.  Co.  v.  Garrett, 
<m   Washington   street   is   already   double-  231  U.  S.  298,  319,  58  L.  ed.  229,  245,  34 
tracked  for  a  distance  of  14  blocks  in  the  Sup.  Ct  Rep.  48;  Grand  Trunk  R.  Co.  v. 
business  section  of  the  city.    The  10  blocks  Michigan  R.   Commission,  231   U.  S.  457, 
now  required  to  be  double-tracked  lie  be-  473,  58  L.  ed.  310,  319,  34  Sup.  Ct  Rep. 
tween  the   business  section   and  the  state  152;  Ohio  Tax  Cases,  232  U.  S.  676,  594, 
Oipitol,  where  are  [282]  located  the  offices  58  L.  ed.  738,  746,  34  Sup.  Ct  Rep.  372. 
of  the  governor,  the  assembly  chambers  of  'I'^^c  co«r*  *>«lo^  expressed  the  view  that 
ihe  sUte  legislature,  the  court  room  of  the  ^^^  ^^^  should  be  retained  in  order  to 
supreme  court  of  the  sUtc  and  the  chambers  restrain  prosecutions  for  penalties  during 
<d  the  judges,  the  law  library  of  the  sUte,  such  time  as  would  be  reasonably  required 
and  the  offices  of  the  secreUry  of  sUte,  the  to  «nable  the  corporation  to  comply  with 
Attorney  general,  the  Corporation  Commis-  ^^^  order  of  the  Commission.     The  court's 
sion,  and  other  state  officials.    On  the  line  o'^er,  as  entered  upon   complainant's  ap- 
is  located  a  public  Ubrary  and  a  park,  both  plication,  contains  no  provision  upon  the 
much  frequented,  while  in  the  vicinity  of  "ubject    Our  affirmance  of  that  order  will 
the   state    Capitol   there    is   an    estimated  be  without  prejudice  to  the  authority  of 
population  of  from  1,200  to  1,500,  the  city  the  District  Court  to  deal  with  the  ques- 
as  a   whole  having  an   estimated  popula-  tion  of  penalties, 
iion  of  25,000.    There  is  abundant  evidence       Affirmed. 
40  li.  ed.                                                        19  %%% 


£84-286 


SUPR£M£  COURT  OF  THE  UNITED  STATES. 


Oct.  Term, 


PEDRO  Db  ELZABURU,  Appi., 

V. 

GENARA  CHAVES  et  aL 
(See  S.  C.  Reporter's  ed.  283-292.) 

Federal  courts  —  following  dedsflons  of 
insular  courts  —  rule  of  property. 

llie  Federal  courts  should  respect  the 
rule  of  property  established  hy  the  rulings 
of  the  Porto  Rico  supreme  court  that  the 
provisions  of  Porto  Rico  mortgage  law,  art. 
395,  under  which  a  decision  in  proceedings 
to  establish  the  ownership  of  real  proper^ 
is  not  res  judicata,  even  as  between  the 
parties,  remained  in  force  notwithstanding 
the  enactment  of  Porto  Rico  Code  Civ.  Proc. 
§  188,  and  Law  of  Evidence,  §$  59,  101, 
making  judgments  in.  special  proceedings 
conclusive,  which  that  court  thought,  hav- 
ing been  enacted  with  full  knowledge  of  the 
provision  of  art.  413  of  the  mortgage  law 
(continued  in  force  by  the  Forakcr  act  of 
April  12,  1900,  31  Stat,  at  L.  79,  chap.  191, 
0>mp.  Stat.  1913,  §  3755,  $  8),  that  "none 
of  the  articles  of  which  this  law  consists 
can  be  repealed  except  bv  virtue  of  another 
special  law,"  could  not  have  been  intended 
to  operate  as  an  implied  repeal,— especially 
in  view  of  the  contemporaneous  enactment 
of  the  "act  relating  to  special  legal  pro- 
ceedings," which  expressly  reserved  from 
the  operation  of  its  repealing  section  the 
special  proceedings  established  in  the  mort- 
gage law. 

[For  other  cssen,  see  Courts,  VII.,  in  Digest 
Sup.  Ct.  1908.] 

[No.  62.] 

Submitted  November  1,  1915.    Decided  No- 
vember 29,  1916. 

APPEAL  from  the  Supreme  0}urt  of 
Porto  Rico  to  review  a  decree  which, 
reversing  a  decree  of  the  District  Ck)urt  of 
San  Juan,  dismissed  the  complaint  in  a 
suit  to  annul  certain  possessory  proceedings, 
and  the  resulting  entry  of  possession.  Af- 
firmed. 
See  same  case  below,  19  P.  R.  R.  162. 
The  facts  are  stated  in  the  opinion. 

Mr.  Jacinto  Texidor  submitted  the  cause 
for  appellant. 

No  brief  was  filed  for  appellees, 

Mr.  Justice  Pitney  delivered  the  opinion 
of  the  court: 

This  suit  was  commenced  by  the  present 
appellant  in  the  district  court  of  San  Juan 
to  set  aside  as  null  and  void  certain  pos- 
sessory proceedings  instituted  by  Paula 
Chaves  in  the  year  1896  with  respect  to  an 
estate  containing  60  cuerdas  of  land,  situate 
at  a  place  known  as  Honduras,  in  the  ward 
of  Sabana  Liana,  in  the  municipality  of 
Rio  Piedras,  Porto  Rico,  and  the  result- 
ini^  entry  of  possession  in  the  registry  of 
190 


property  of  San  Juan,  and  to  require  the 
defendants  (the  present  appellees),  who  are 
children  and  heirs  of  Paula  Chaves,  to  va- 
cate the  property  and  deliver  up  posses- 
sion to  the  plaintiff  as  the  lawful  own- 
er. The  district  court  rendered  judgment  in 
his  favor;  but  the  supreme  court  of  Porto 
Rico  reversed  this  judgment  and  [285]  dis- 
missed the  complaint.  19  P.  R.  R.  162.  The 
present  appeal  was  taken  under  §  244, 
Judicial  Code  (act  of  March  3,  1911,  86 
SUt.  at  L.  1087,  1157,  chi^.  231,  Comp. 
SUt.  1913,  §§  968,  1221),  it  appearing  that 
the  estate  in  question  exceeds  $5,000  in 
value. 

The  transcript  contains,  in  addition  to 
the  evidence,  a  ''statement  of  facts  in  the 
nature  of  a  special  verdict,"  made  up  for 
the  purposes  of  the  present  appeal  in  the 
manner  contemplated  by  §  36  of  the  Fora- 
Icer  act  (of  April  12,  1900,  chap.  191,  31 
Stat  at  L.  77,  86,  Comp.  Stat.  1913,  §§ 
3747,  3791).  See  Rosaly  t.  Graham  y 
Eraser,  227  U.  S.  584,  589,  67  L.  ed.  655, 
057,  33  Sup.  Ct.  Rep.  888;  Oohoa  v.  Her- 
nandez y  Morales,  230  U.  S.  139,  143,  57 
L.  ed.  1427,  1430,  33  Sup.  Ct.  Rep.  1033. 
But  that  practice  was  superseded  by  §  244, 
Judicial  Code,  which  subjected  appeals 
talcen  from  the  supreme  court  of  Porto 
Rico  to  the  same  regulations  as  appeals 
from  the  district  courts  of  the  United 
States,  thus  extending  our  review  so  as  to 
include  questions  of  fact.  1 

Plaintiff  asserted  that  the  60  cuerdas 
were  part  of  a  tract  of  112  cuerdas,  and 
this  in  turn  part  of  a  tract  oontaining  be- 
tween 140  and  160  cuerdas  formerly  owned 
by  Alonso  Hemandes,  who  aoquired  it  in 
the  year  1864;  that  Hemandes  hypothe- 
cated this  property  to  the  Spanish  govern- 
ment as  security  for  the  faithful  perform- 
ance of  his  duties  as  collector  of  internal 
revenue;  that  because  of  an  embezzlement 
of  public  funds  by  him  the  property  was 
seized  by  the  government  in  the  year  1875; 
that  about  twenty  years  later,  on  June  6, 
1895,  it  took  possession  of  the  land,  and 
on  September  14,  in  that  year,  possession 
was  recorded  in  the  registry  in  favor  of  the 
government,  without  prejudice  to  third  par- 
ties who  might  have  a  better  title;  and  that 
on  October  16,  1897,  the  tract  of  112  cuerdas 
was  sold  at  auction  to  one  Cuadrado,  Who 
transferred  his  right  to  plaintiff,  and  there- 
after, by  deed  of  [286]  October  17,  1808, 
the  proper  public  ofllcial  conveyed  the  land 
to  plaintiff.  As  to  the  source  of  the  title  of 
Hernandez,  plaintiff  claims  to  have  shown 

1  Section  244,  Judicial  Code,  was  repealed 

by  act  of  January  28,  1915;  38  Stat  at  L. 

804,  chap.  22,  but  with  a  reservation   of 

I  cases  then   pending  in   this  court,  as  the 

present  case  was. 

239  V.  S. 


1915. 


D£  ELZABURU  ▼.  CHAVES. 


286-288 


1^  evidence  that  prior  to  the  year  1819 
the  whole  tract  was  inherited  by  Eugenia 
de  la  Cmz  and  her  brother,  Jos^,  from  their 
grandparents,  and  the  brother  conveyed  his 
share  to  the  sister;  that  in  that  year 
Eugenia  sold  the  land  without  deed  to 
Juana  Maria  de  Otero;  and  that  after  the 
death  of  Eugenia,  and  in  the  year  1836, 
her  son  and  testamentary  executor  insti- 
tuted proceedings  to  prove  the  inheritance 
of  the  estate  by  his  mother  and  the  sale  of 
it  to  Mrs.  Otero.  In  these  proceedings, 
which  were  in  evidence,  several  witnesses 
testified  that  Eugenia  de  la  Cruz  was  the 
owner  of  the  property  then  in  question  for 
many  years  prior  to  the  sale  of  it  to  Mrs. 
Otero  in  18J9,  but  agreed  in  saying  that  at 
the  time  of  testifying  and  for  some  years 
before  one  Juan  Caneti  was  in  possession 
of  it  under  some  title  unknown  to  them. 
The  testimony  having  been  forwarded  to  the 
court  of  >  San  Juan,  it  was  ordered  that 
the  owners  of  the  adjacent  properties  and  the 
sindico  procurador  be  heard.  The  property 
owArs  waived  hearing.  It  does  not  appear 
that  Caneti  was  either  summoned  or  heard. 
Ihe  sindico  made  no  objection  to  approving 
the  investigation,  "for  although  the  wit- 
nesses say  that  said  property  is  possessed 
by  Juan  Caneti,  this  does  not  annul  the 
ownership  had  by  Eugenia,  and  Juana  may 
iiave  leased  or  sold  it  to  Caneti."  The  in- 
vestigation was  thereupon  approved  by  the 
court.  Hernandez's  title  was  derived  in  the 
year  1854  under  a  public  deed  made  by  a 
brother  and  four  sisters  named  Otero,  in 
their  own  name  and  for  two  other  brothers 
named,  for  "an  estate  in  the  barrio  of  Hon- 
duras, Rio  Piedras,  which  is  bounded  by 
lands  belonging  to  the  Marchioness  de  Leon 
and  to  Jos6  de  la  Cruz,  and  is  composed 
of  140  or  150  cuerdas,  the  exact  number 
of  which  will  be  stated  in  the  deed  to  be 
executed  for  the  purpose,  [287]  as  well  as 
the  demarcation  thereof,  when  the  same  is 
surveyed." 

Defendants  (the  present  appellees)  al- 
leged that  Juan  Caneti  was  the  true  owner 
at  least  of  the  tract  of  50  cuerdas  now  in 
difpute;  that  from  him  it  passed  to  his 
son,  Santos  Caneti,  who  in  the  year  1867 
sold  it  on  instalments  to  Ramon  Clemen te, 
the  husband  of  Paula  Chaves,  from  whom 
it  descended  to  Paula  and  the  defendants, 
who  are  her  lawful  children  by  Clemente. 
There  was  substantial  evidence  tending  to 
support  these  allegations.  It  was  also 
shown  quite  clearly  that  Paula  Chaves  was 
in  continuous  possession  from  the  year  1875 
until  her  death  in  1899,  after  which  event 
defendants  held  continuous  possession  down 
to  the  time  of  the  suit.  In  the  year  1895 
Paula  instituted  proceedings  for  the  record- 
ing of  her  possession,  in  which  the  adjoin- 
•0  L.  ed. 


ing  owners  were  summoned,  testimony  was 
taken,  and  the  proceedings  were  approved 
November  7,  1895,  and  recorded  in  the  regis- 
try of  property  in  the  month  of  March  fol- 
lowing. 

The  supreme  court  of  Porto  Rico  treated 
the  present  suit  as  partaking  of  the  char- 
acter of  an  action  of  ejectment  to  such 
extent  that  it  devolved  upon  plaintiff  at 
the  outset  to  prove  that  he  was  the  lawful 
owner  of  the  lands  claimed  by  and  in  the 
possession  of  defendants.  The  court  re- 
viewed the  evidence,  found  that  plaintiff's 
chain  of  title  did  not  clearly  identify  the 
location  or  boundaries  of  the  land  claimed 
by  him,  that  the  evidence  of  Hernandez's 
title  was  dubious,  and,  while  the  tract  of 
50  cuerdas  was  clearly  comprised  within 
the  boundaries  which  the  Spanish  govern- 
ment fixed  for  the  properties  sold  by  it  to 
plaintiff,  there  was  so  much  doubt  respect- 
ing the  question  of  ownership  as  to  rendei 
it  impossible  to  reach  the  conclusion  that 
plaintiff  had  proved  his  title.  It  was  point- 
ed out  that  in  the  proceedings  instituted 
in  1836  no  description  of  the  property  was 
given,  that  the  witnesses  then  examined 
failed  to  establish  the  possession  of  Mrs. 
Otero,  but  did  [288]  refer  to  the  fact  of  pos- 
session by  Juan  Caneti,  who  was  neither 
summoned  nor  heard;  that  it  was  not  estab- 
lished in  what  manner  the  Oteros  who  made 
the  deed  of  sale  in  1854  to  Hernandez  were 
connected  with  Mrs.  Otero  named  in  the 
proceedings  of  1836;  that  it  was  not  shown 
how  the  seizure  of  the  property  by  the 
Spanish  government  in  1875  was  carried 
into  effect,  or  the  quantity  or  location  of 
the  property  seized;  that  there  was  no  rec- 
ord of  the  details  connected  with  the  act 
of  taking  possession  of  the  112  cuerdas  by 
the  mayor  of  Rio  Piedras  in  behalf  of  the 
government  on  June  5,  1895,  as  alleged  by 
plaintiff,  but  that  even  if  those  112  cuerdas 
included  the  50  cuerdas  in  controversy,  it 
appeared  that  Paula  Chaves,  who  at  that 
time  was  in  possession  of  the  50  cuerdas, 
not  only  remained  in  possession,  but,  for 
the  purposes  of  the  possessory  title  proceed- 
ings, brought  by  her  later  in  the  same  year, 
obtained  a  certificate  from  the  mayor,  the 
secretary,  and  the  sindico  of  the  municipal- 
ity of  Rio  Piedras,  stating  that  according 
to  the  records  in  the  municipal  archives 
she  was  in  possession  under  title  of  owner- 
ship; and  that  from  the  whole  of  the  evi- 
dence it  appeared  that  the  Canetis  had  held 
continuous  possession  in  early  times,  and 
the  Chaves  family  at  least  from  1875. 

Our  examination  of  the  record  discloses 
no  sufljcient  ground  for  reversing  the  su- 
preme court  of  Porto  Rioo  upon  the  ques- 
tions of  fact. 

191 


28S>291 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


The  chief  reliance  of  appellant  is  upon 
certain  questions  of  law,  the  first  insistence 
being  that  the  court  erred  in  denying  the 
force  and  effect  of  res  judicata  to  a  decision 
rendered  by  the  district  court  of  San  Juan 
May  31,  1907,  in  a  former  action  between 
the  present  parties.  It  appears  that  de- 
fendants, as  heirs  of  Paula  Chaves,  in- 
stituted a  proceeding  in  the  municipal 
court  of  San  Juan  for  the  purpose  of  con- 
verting the  entry  of  possession  of  the  50 
cuerdas,  previously  made  in  her  favor,  into 
a  dominion  title;  that  plaintiff  opposed  the 
conversion;  upon  the  trial  [280]  decision 
was  rendered  in  his  favor;  and  on  appeal  the 
district  court  of  San  Juan  declared  that 
the  50  cuerdas  were  not  in  possession  of  de- 
fendants, but  were  part  of  the  estate  of  112 
cuerdas  belonging  to  plaintiff,  that  he  was 
in  lawful  possession,  and  that  the  heirs  of 
Chaves  had  no  right  to  convert  their  re- 
corded possession  into  a  dominion  title. 

The  supreme  court  held  that  this  deci- 
sion was  not  res  judicata.  Appellant  cites 
to  the  contrary,  §  188  of  the  local  Code  of 
Civil  Procedure  (Comp.  SUt  [P.  R.] 
§  5172),  which  declares  that  ''a  judgment 
is  a  final  determination  of  the  rights  of  the 
parties  in  an  action  or  proceeding,"  and 
«ii$  50  and  101  of  the  law  of  evidence  (Comp. 
SUt.  [P.  R.]  §§  1427,  1469),  which  are  to 
the  effect  that,  as  to  parties  notified,  "a 
judgment  or  final  order  in  an  action  or 
special  proceeding'*  is  conclusive.  1 

[200]  The  question  is  whether  the  deci- 
sion of  May  31,  3907,  was  ''a  judgment  or 
final  order  in  an  action  or  special  proceed- 
ing*'  witliin  the  meaning  of  the  sections  cit- 
ed. The  proceeding  was  instituted  under  ar- 
ticle 305  of  the  mortgage  law  (Comp.  Stat. 
[P.  R.]  p.  1108),  which  enables  an  owner 
of  property  having  no  written  title  to  record 
his  ownership  upon  proving  it  before  the 
judge  of  the  court  of  first  instance,  or  mu- 1 


nicipal  court,  under  prescribed  formalities. 
Notice  is  given  to  the  person  from  whom 
the  property  may  have  been  acquired,  or 
his  predecessor  in  interest,  and  to  the  rep- 
resentative of  the  department  of  public 
prosecution.  The  judge  is  to  "receive  writ- 
ten pleadings  upon  the  claims  and  evidence 
which  may  have  been  presented  by  the  rep- 
resentative of  the  department  of  public 
prosecution,  or  by  the  other  persons  who 
may  have  attended  the  proceedings/'  and  in 
view  of  their  allegations  he  is  to  decide 
upon  the  evidence  and  declare  whetlier  the 
ownership  of  the  property  involved  has  been 
established;  any  person  interested  may  ap- 
peal from  this  decision;  and  **if  said  deci- 
sion is  accepted  or  affirmed,  it  shall  con- 
stitute a  sufficient  title  for  the  record  of 
the  ownership." 

There  seems  to  be  no  question  that  such 
a  decision,  as  the  law  stood  at  the  time  of 
the  annexation  of  the  island  to  the  United 
States,  was  not  conclusive  upon  the  ques- 
tion of  ownership,  even  as  between  the  par- 
ties participating  in  the  proceeding,  jbut 
was  subject  to  be  set  aside  in  an  ordinary 
action. 

By  article  413  of  the  mortgage  law  it  was 
declared:  "None  of  the  articles  of  which 
this  law  consists  can  be  repealed  except  by 
virtue  of  another  special  law."  And  by 
§  8  of  the  Foraker  act  of  April  12,  19U0 
(31  Stat,  at  L.  79,  chap.  191,  Comp.  Stat. 
1913,  §  3755),  [201]  the  law  was  continued 
in  force  until  amended  or  repealed  by  the 
legislative  assembly  or  by  act  of  Congress. 
The  Code  of  Civil  Procedure  was  enacted 
by  the  legislative  assembly  March  10,  1904. 
The  law  of  evidence  was  enacted  March  9, 
1905.  As  already  shown,  it  refers  to  ''ac- 
tions and  special  proceedings."  Upon  the 
same  day  another  act  was  approved,  en- 
titled, "An  Act  Relating  to  Special  Legal 
Proceedings."     (Comp.    Stat.     [P.    R.]     p. 


1(1427)  Sec.  59.  The  effect  of  a  judgment 
or  final  order  in  an  action  or  special  pro- 
ceeding before  a  court  or  judge  of  Porto 
Rico  .  .  .  liaving  jurisaiction  to  pro- 
nounce tlie  judgment  or  order,  is  as  fol- 
lows : 

1.  In  case  of  a  judgment  or  order  against 
a  specific  thing,  or  in  respect  to  the  pro- 
bate of  a  will,  or  the  administration  of  the 
estate  of  a  decedent,  or  in  respect  to  the 
personal,  political,  or  legal  condition  or 
relation  of  a  particular  person,  the  judg- 
ment or  order  is  conclusive  upon  the  title 
to  the  thing,  the  will,  or  administration,  or 
the  condition  or  relation  of  the  person; 

2.  In  other  cases  the  judgment  or  order 
is,  in  respect  to  the  matter  directly  ad- 
judged, conclusive  between  the  parties  and 
their  successors  in  interest  by  title  sub- 
sequent to  the  commencement  of  the  action 
or  special  proceeding,  litigating  for  the 
same  thing  under  the  same  title  and  in  the 
292 


same  capacity,  provided  they  have  notice, 
actual  or  constructive,  of  the  pendency  of 
the  action  or  proceeding. 

(1428)  Sec.  60.  Other  judicial  orders  of 
a  court  or  judge  of  Porto  Rico  .  .  . 
create  a  disputable  presumption,  accord- 
ing to  the  matter  directly  determined,  be- 
tween the  same  parties  and  their  repre- 
sentatives and  successors  in  interest  by  title 
subsequent  to  the  commencement  of  the  ac- 
tion or  special  proceeding,  litigating  for 
the  same  thing  under  the  same  title  and  in 
the  same  capacity.    .    •    . 


(1469)  Sec.  101.  The  following  p 
tions,  and  no  others,  are  deemed 
sive: 


resump- 
conclu- 


6.  The   judgment   or   order   of  a   court, 
when  declared  by  this  Code  to  be  conclu* 


sive;     •    •    • 


239  U.  S. 


1915. 


ARANA  DB  VILLANUBVA  t.  VILLANUEVA 


201-^3 


300.)  It  containt  provisions  for  the  re- 
cording of  public  instruments  and  wills,  for 
declaration  of  heirship,  administration  of 
dtoedents'  estates,  appointment  of  guard- 
ians, the  oars  of  the  persons  and  properties 
of  minors,  and  other  matters;  and  in  its 
ftial  section  there  is  this  declaration :  "All 
prefions  laws  in  conflict  herewith  are  here- 
kj  repealed;  hot  the  special  proceedings  es- 
tablished in  the  Civil  Code,  in  the  mort- 
gage law  and  its  regulations,  and  in  any 
other  law,  in  io  far  as  not  provided  for  by 
this  act,  remain  in  foree.** 

The  effect  of  these  sabsaquent  enactments 
upon  the  special  proceedings  established  in 
the  mortgage  law  and  regulations  was  con- 
sidered by  the  suprone  court  of  Porto 
Rieo  in  Qimfoes  v.  Brenes  (1006)  10  P.  R. 
B.  124,  181,  133,  etc,  and  again  in  Qon- 
lales  V.  People  (1906)  10  P.  R.  R.  468,  462. 
In  the  former  case  it  was  held,  with  respect 
to  summary  proceedings  for  the  collection 
of  a  mortgage  debt  under  article  128,  in  the 
hitter  with  respect  to  a  special  proceeding 
uider  article  395,  that  the  provisions  of  the 
mortgage  law  remained  in  foroe  notwith- 
standing the  Code  of  Civil  Procedure,  and 
in  the  latter  case  it  was  diatinotly  held  that 
the  proceedings  to  establish  ownership  did 
not  produce  the  effect  of  res  judicata.  This 
was  reaffirmed  by  the  same  court  in  C^l- 
deroQ  V.  Garda  (1908)  14  P.  R.  R.  407, 
416.  And  see  Ochoa  v.  Hernandez  y 
Morales,  230  U.  S.  139,  161,  57  L.  ed.  1427, 
1433,  33  Sup.  Ct.  Rep.  1033.  These  deci- 
sions of  the  supreme  court  of  Porto  Rico 
are  based  upon  reasoning  that,  while  con- 
ceding the  fuU  authority  [898]  of  the  legis- 
lative aaaembly  to  repeal  or  modify  the 
mortgage  law,  in  effect  inyoket  article  413 
of  that  law  (continued  in  force  as  a  part  of 
It  by  the  Foraker  act)  as  prescribing  a  rule 
of  interpretation  to  hfi  applied  in  testing  the 
intention  of  the  law-miUcing  body  as  ex- 
pressed in  subsequent  enactments.  No  ex- 
press repeal  of  article  305  of  the  mortgage 
law  being  found,  and  the  question  being 
one  of  implied  repeal,  the  court  deemed  it 
maaifest  that  the  legislative  assembly,  in 
adopting  the  Code  of  Civil  Procedure  and 
the  law  of  evidence,  did  so  with  full  knowl- 
edge of  article  413  of  the  mortgage  law, 
and  therefore  intended  no  implied  repeal. 
And  the  law  of  evidence  having  been  en- 
acted contemporaneously  with  the  act  re- 
lating to  special  proceedings,  the  latter  act 
was  looked  to  in  construing  §  59  of  the 
former,  and  the  express  reservation  of  the 
special  proceedings  established  in  the  mort- 
gage law  and  its  regulations  was  treated 
as  showing  that  they  were  to  be  left  in  ex- 
istence with  their  former  force  and  effect, 
and  no  greater.  This  view,  to  say  the  least, 
is  a  reasonable  one;  and  since  it  is  plain 
60  L.  ed. 


that  the  decisions,  having  stood  io  long  un- 
challenged, have  established  a  rule  of  prop- 
erty, it  seems  to  us  that  they  ought  not 
now  to  be  overruled.  It  is  worthy  of  re- 
mark that  Gonzales  v.  People,  supra,  was 
decided  more  than  a  full  year  before  the 
decision  of  the  district  court  of  San  Juan 
which  appellant  insists  ought  to  be  treated 
as  conclusive.  Defendants  may  well  have 
refrained  from  taking  an  appeal  from  the 
decision  of  the  district  court  in  reliance 
upon  the  prerious  decision  of  the  higher 
tribunal  that  it  had  no  conclusive  effect. 

The  remaining  questions  of  law  raised  by 
appellant  resolve  themselves,  upon  analysis, 
into  a  mere  criticism  of  the  process  of  rea- 
soning by  which  the  court  reached  its  con- 
clusions upon  the  facts.  We  find  them  with- 
out substantial  merit,  so  far  as  their  effect 
upon  the  result  is  ooneemed* 

Judgment  affirmed. 


[898]    TEODORA    ARANA    DE    VILLA- 
NUEVA, Appt, 

V. 

MARIANO  P.  VILLANUEVA. 
(See  S.  C.  Reporter's  ed.  293-299.) 

Appeal  *  from     Philippine     snpreme 
oonrt  —  Jurisdictional  amount. 

1.  The  requisite  jurisdictional  amount 
is  involved  so  as  to  sustain  an  appeal  to 
the  Federal  Supreme  Court  from  the  Philip- 
pine supreme  court  to  review  a  decree 
which  affirmed  a  decree  below,  rejeotinj;  a 
wife's  demand  for  a  divorce,  and  liquida- 
tion of  the  community,  where,  in  addition 
to  an  allegation  in  the  bill  of  the  existence 
of  such  an  amount  of  community  property 
as  to  give  jurisdiction,  an  affidavit  filed  for 
tJie  purpose  of  the  appeal  asserts  that  the 
value  of  the  property  in  controversy  ex- 
ceeds that  amount,  there  bein^  no  counter- 
vailing affidavit,  and  nothing  m  the  record 
to  demonstrate  to  the  contrary. 

[For  other  caies,  see  Appeal  and  Error,  I.  f.  In 
Digest  Sup.  Ct  1908.] 

Appeal  *  from     Philippine     supreme 

oonrt  —  review  of  facta. 

2.  Concurrent  findings  of  fact  by  the 
two  lower  courts  will  be  accepted  by  the 
Federal  Supreme  Court  on  an  appeal  from 
the  Philippine  supreme  court,  unless  clear- 
ly erroneous. 
[For  other  cases,  see  Appeal  and  Error,  4931- 

-    -^-         "    ►.  Ct 


4959,  In  Digest  Sap.  Ot  1908.] 


Note. — On  appellate  jurisdiction  of  Fed- 
eral Supreme  Court  over  supreme  court  of 
Philippine  Islands — see  note  to  Martinez  v. 
International  Bkg.  Corp.  56  L.  ed.  U.  S.  438. 

As  to  amount  necessary  to  give  United 
States  Supreme  Court  jurisdiction — see 
notes  to  Schunk  v.  Moline,  M.  ^  S.  Co.  37 
L.  ed.  U.  S.  256;  and  Commercial  Bank  v. 
Buckingham,  12  L.  ed.  U.  S.  169. 

29S 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TkBM, 


Appeal  ^  from     Philippine     supreme 
court  ~  following  decision  below. 

3.  The  local  law,  as  applied  by  the 
court  below  to  the  facts,  will  be  accepted 
by  the  Federal  Supreme  Court  on  an  ap- 
peal from  the  Philippine  supreme  court  un- 
less constrained  to  the  contrary  by  the  con- 
viction that  error  was  clearly  committed 
by  the  court  below. 

[For  other  cases,  see  Appeal  and  Error,  VIII. 
m.  1,  In  Digest  Sup.  Ct.  1908.] 

[No.  66.] 

Argued   November   0,    1915.     Decided   De- 
cember 6,  1915. 

APPEAL  from  the  Supreme  Court  of  the 
Philippine  Islands  to  review  a  decree 
which  aflirmed  a  decree  of  the  Court  of 
First  Instance  of  the  Province  of  Albay, 
dismissing  a  wife's  suit  for  a  divorce  from 
her  husband,  and  for  a  liquidation  and  par- 
tition of  the  communi^  property.  Af- 
firmed. 
The  facts  are  stated  in  the  opinion. 

Mr.  C.  W.  O'Brien  argued  the  cause  and 
filed  a  brief  for  appellant: 

The  doctrine  of  condonation  is  not  ap- 
plied BO  strictly  to  the  wife  as  to  the  hus- 
band. 

D'Aguilar  v.  D'Aguilar,  1  Hagg.  Eccl. 
Rep.  786;  Beeby  v.  Beeby,  1  Hagg.  Eccl. 
Rep.  789;  Bishop,  Marr.  Div.  &  Sep.  §  284. 

Condonation  does  not  embrace  all  the 
acts  of  the  offending  party,  but  only  the 
acts  of  which  the  condoning  party  had 
knowledge  at  the  time  thereof. 

Ralston  v.  Ralston,  8  Sc.  Sess.  Cas.  4th 
series,  373 ;  Alexandre  v.  Alexandre,  L.  R. 
2  Prob.  164,  39  L.  J.  Prob.  N.  S.  84,  23 
L.  T.  N.  S.  268,  18  Week.  Rep.  1087 ;  Bishop, 
Marr.  Div.  &  Sep.  §  299,  note,  5;  D'Aguilar 
▼.  D'Aguilar,  1  Hagg.  Eccl.  Rep.  773;  Du- 
rant  v.  Durant,  1  Hagg.  Eccl.  Rep.  733; 
Turton  ▼.  Turton,  3  Hagg.  Eccl.  Rep.  338; 
Bramwell  v.  Bramwell,  3  Hagg.  Eccl.  Rep. 
618;  Odom  v.  Odom,  36  Ga.  286;  Clouser 
V.  Clapper,  59  Ind.  548;  Verhoff  v.  Van 
Houwenlengen,  21  Iowa,  429;  Benedicto  ▼. 
De  la  Rama,  3  Philippine,  34,  201  U.  S. 
303,  50  L.  ed.  765,  26  Sup.  Ct.  Rep.  485. 

All  condonation,  especially  the  implied 
condonation,  is  upon  the  condition  that  con- 
tinually thereafter  tlie  party  forgiven  shall 
treat  the  other  with  conjugal  kindness; 
wherefore  a  breach  of  the  condition  revives 
the  original  right  of  divorce. 

Bishop,  Marr.  Div.  &  Sep.  §§  308,  311- 
313;  2  Greenl.  Ev.  §  53;  Fisher  v.  Fisher, 
93  Md.  298,  48  Atl.  833 ;  Davis  v.  Davis,  19 
111.  334;  Moorhouse  v.  Moorhouse,  90  111. 
App.  401;  Timerson  ▼.  Timerson,  2  How. 
Pr.  N.  S.  526;  Johnson  v.  Johnson,  14 
Wend.  637,  reversing  4  Paige,  460,  revers- 
294 


ing  4  Edw.  Ch.  439;  Langdon  ▼.  Lang- 
don,  25  Vt.  678,  60  Am.  Dec.  296;  Durant 
V.  Durant,  1  Hagg.  Eccl.  Rep.  733;  Cooke 
V.  Cooke,  9  Jur.  N.  S.  754.  32  L.  J.  Prob. 
N.  S.  154,  8  L.  T.  N.  S.  644,  3  Swabey  A. 
T.  126,  11  Week.  Rep.  957;  Dent  v.  Dent, 
34  L.  J.  Prob.  N.  S.  118,  13  L.  T.  N.  S. 
252,  4  Swabey  &  T.  105;  Winscom  v.  Win- 
scom,  10  Jur.  N.  S.  321,  33  L.  J.  Prob. 
N.  S.  45,  3  Swabey  A,  T.  380,  10  L.  T. 
N.  S.  100,  12  Week.  R^.  535;  Ridgway 
V.  Ridgway,  29  Week.  Rep.  612. 

Contra,  Collins  v.  Collins,  L.  R.  9  App. 
Cas.  205,  32  Week.  Rep.  500;  Cass  v.  Cass, 
34  La.  Ann.  611;  Benedicto  v.  De  la  Rama, 
3  Philippine,  34. 

From  the  fact  that  plaintiff  occasionally 
returned  to  her  home  to  visit  her  children, 
who  still  resided  therein,  it  shall  not  be 
presumed  that  the  parties  were  living  to- 
gether as  man  and  wife,  or  that  th^  re- 
sumed marital   relations. 

Harnett  v.  Harnett,  59  Iowa,  401,  13 
N.  W.  408;  Toulson  v.  Toulson,  93  Md. 
754,  50  Atl.  401;  Hann  v.  Hann,  58  N.  J. 
Eq.  211,  42  Atl.  564.  Contra  Marsh  ▼. 
Marsh,   13  N.  J.  Eq.   281. 

Mr.  Howard  Thayer  Kingsbury  argued 
the  cause,  and,  with  Mr.  Frederic  R.  Cou- 
dert,  filed  a  brief  for  appellee: 

The  burden  of  showing  jurisdiction  is 
on  the  appellant,  and  she  must  establish 
the  jurisdictional  facts  by  a  fair  prepon- 
derance of  testimony. 

Wilson  V.  Blair,  119  U.  S.  387,  30  L.  ed. 
441,  7  Sup.  Ct.  Rep.  230;  Johnson  v.  Wil- 
kins,  116  U.  S.  392,  29  L.  ed.  671,  6  Sup. 
Ct.  Rep.  600. 

While  in  some  cases  where  judgment  goes 
for  the  defendant  the  amount  of  the  plain- 
tiff's claim  is  the  test  of  jurisdiction,  never- 
theless it  must  appear  that  the  claim  is 
made  in  good  faith  and  upon  substantial 
grounds. 

Gorman  ▼.  Havird,  141  U.  8.  206,  35 
L.  ed.  717,  11  Sup.  Ct.  Rep.  943. 

The  law  governing  divorce  in  the  Philip- 
pines is  the  old  Spanish  law  of  the  Parti- 
das.  How  these  ancient  statutes  are  to  be 
construed  and  applied  is  a  question  of  local 
law,  upon  which  this  court  customarily  fol- 
lows the  ruling  of  the  local  courts,  unless 
they  are  "clearly  wrong." 

Santo  Fe  C.  R.  Co.  v.  Friday,  232  U. 
S.  694,  700,  58  L.  ed.  802,  803,  34  Sup.  Ct. 
Rep.  468;  Nadal  v.  May,  233  U.  S.  447, 
454,  58  L.  ed.  1040,  1041,  34  Sup.  Ct  Rep. 
611;  Ker  &  Co.  v.  Couden,  223  U.  S.  268, 
279,  56  L.  ed.  432,  435,  32  Sup.  Ct  Rep. 
284. 

This  court  will  also  accept  the  findings 
of  fact  in  which  both  courts  below  have  con* 
curred,  unless  they  are  "clearly  erroneous." 

239  U.  S. 


1915 


ARAKA  DE  VILLANUEVA  ▼.  VILLANUEVA 


294-296 


Dim  T.  Lumbermen's  Credit  Asso.  200 
n.  S.  24,  52  L.  ed.  666,  28  Sup.  Ct.  Rep. 
SS6,  14  Ann.  Cas.  501;  Shappirio  v.  Gold- 
berg, 192  U.  S.  232,  240,  48  L.  ed.  419,  424, 
24  Sup.  Ct.  Rep.  259. 

[294]  Mr.  Chief  Justice  Wlilte  delivered 
the  opinion  of  the  court: 

The  decree  which  the  appellant  seeks  to 
iwerse  affirmed  one  rendered  bj  the  court 
of  first  instance,  rejecting  her  demand  for 
a  divorce  from  her  husband  and  for  a  liqui- 
dation  and  partition  of  the  property  belong- 
ing to  the  legal  conununity  which  existed 
between  them.  At  the  outset  we  say  that 
we  think  there  is  no  foundation  for  the 
suggestion  that  we  are  without  Jurisdiction 
because  of  the  inadequacy  of  the  amount 
involved,  since  the  complaint  by  which  the 
suit  was  begun  alleged  the  existence  of  such 
an  amount  of  community  property  as  to 
give  jurisdiction,  and  because  the  affidavit 
filed  for  the  purpose  of  the  appeal  also  so 
establishes,  there  being  no  countervailing 
affidavit  and  nothing  in  the  record  to  dem- 
onstrate to  the  contrary.  De  la  Rama  v. 
De  la  Rama,  201  U.  S.  *d03,  50  L.  ed.  765, 
26  Sup.  Ct.  Rep.  485. 

The  complaint  for  divorce  and  liquida- 
tion of  the  community  as  it  was  finally 
amended,  which  was  filed  in  1910,  alleged 
the  marriage  of  the  parties  in  1867  and  the 
birth  of  ten  children,  nine  of  whom  were 
alive  and  of  age  and  one  of  whom  was  dead, 
leaving  surviving  issue.  As  a  bsnis  for  the 
divorce  prayed  various  acts  of  adultery  by 
the  defendant  were  charged,  extending  over 
a  period  of  forty- two  years;  that  is,  from 
1868,  shortly  after  the  marriage,  until  the 
bringing  of  the  suit  in  1910.  The  facts  thus 
charged  embraced  six  periods:  the  first, 
from  1868  until  the  filing  of  the  suit  with 
a  named  person,  from  which  relation  it  was 
alleged  there  had  been  begotten  five  chil- 
dren, four  of  whom  were  alive  and  bore  their 
father's  surname;  the  second,  with  another 
named  person  during  1889  and  1890,  from 
which  relation  there  was  begotten  a  daugh- 
ter who  likewise  bore  her  father's  surname; 
the  third,  with  a  named  person  during  the 
year  1801 ;  the  fourth,  with  a  named  person 
from  1892  until  the  time  the  [295]  suit  was 
commenced,  from  which  relation  it  was  al- 
leged children  also  were  begotten;  the  fifth, 
with  a  named  person  during  the  years  1001 
and  1902;  and  the  sixth,  with  a  named  per- 
son during  the  years  1903  and  1904.  The 
answer  set  up  a  general  denial,  a  special 
defense  that  if  the  acts  of  adultery  alleged 
were  found  to  have  been  committed,  they 
were  done  with  the  knowledge  of  the  com- 
plainant, who  had  condoned  them,  and, 
moreover,  that  the  action  was  prescribed. 

After  full  hearing  the  court  of  first  in- 
stance found  that  the  defendant  had  been 
•0  li.  ed. 


guilty  of  adultery  with  the  person  named 
in  the  complaint  in  the  first  period  during 
the  years  from  1868  until  1900,  but  that 
there  was  no  proof  of  any  such  adultery 
having  been  committed  by  him  with  the  per- 
son named  for  the  ten  years  preceding  the 
suit,  that  is,  from  1900  to  1910.  The  court 
also  found  that  it  was  established  that  the 
defendant  had  adulterous  relations  with 
the  person  named  during  the  second  period, 
that  is,  from  1889  to  1890,  and  that  from 
such  relations,  as  alleged,  a  daughter  named 
Maria  was  begotten,  but  that  the  relations 
had  ceased  years  before  the  bringing  of  the 
suit,  since  the  woman  named  had  died  long 
before  at  a  period  fixed  approximately  as 
the  time  of  the  beginning  of  the  American 
occupation  of  the  islands.  The  court  also 
found  that  it  had  been  proved  that  acts  of 
adultery  had  been  committed  with  the  per- 
son named  during  the  fourth  period,  that  is, 
in  1892  and  some  time  thereafter,  but  it 
also  affirmatively  found  that  all  relations 
between  the  defendant  and  the  person  named 
in  this  period  had  ceased  prior  to  1900.  It 
was  moreover  expressly  found  that  there 
was  no  proof  whatever  offered  concerning 
any  of  the  other  acts  of  adultery  charged  in 
the  complaint. 

Concerning  the  first  period,  the  court 
found  th&t  the  proof  left  no  doubt  that  the 
complainant  at  an  early  date  became  aware 
of  the  adulterous  relations  to  which  that 
[296]  period  related,  and  although  she  did 
so,  continued  her  marital  relations  with  her 
husband  and  had  condoned  his  infidelity. 
Indeed,  it  was  found  that  forgiveness  by  the 
wife  was  clearly  established  from  the  fact 
that  during  the  ten  years  which  had  elapsed 
before  the  bringing  of  the  suit  and  after 
the  illicit  relations  had  ceased,  the  children 
begotten  of  such  relation  were  brought  into 
the  household  with  the  consent  of  the  wife, 
and  lived  as  part  of  the  common  family. 
Applying  the  law  to  this  condition  it  was 
held  that  the  condonement  or  forgiveness 
was  a  complete  bar  to  the  suit  based  upon 
the  acts  which  had  been  thus  forgiven.  So 
far  as  concerned  the  acts  of  infidelity  com- 
mitted during  the  second  and  fourth  peri-| 
ods,  as  stated,  although  it  was  found  that 
there  was  no  direct  proof  that  the  com- 
plainant knew  of  such  wrongs  when  com- 
mitted, nevertheless  it  was  held  that  there 
was  no  ground  for  awarding  relief  because 
of  such  acts  irrespective  of  the  question  of 
forgiveness  or  condonement  resulting  from 
the  long  continuance  of  the  marital  rela- 
tions after  such  acts  had  been  committed, 
for  the  reason  that  the  complainant  had 
expressly  declared  in  testifjring  that  she 
solely  asked  relief  because  of  the  acts  em- 
braced in  the  first  period,  and  none  other,— 
a  situation  which,  it  was  held,  brought  the 
case  directly  within  the  control  of  Laws  V 

29* 


206-299 


6UPBSME  OOUBT  OF  THB  UNITED  STATES. 


Oct.  Tbm, 


•ad  2,  title  9,  Partida  4,  expressly  confin- 
ing the  right  to  complain  of  adultery  by 
one  pf  the  parties  to  a  marriage  to  the 
injured  party.  And  this  conclusion  was 
sustained  by  pointing  out  that  although 
the  complaint  for  divorce  had  been  sworn 
to  by  the  complainant,  she  had  in  her  testi- 
mony admitted  that  she  knew  nothing  of 
the  particular  acts  embraced  in  the  periods 
in  question,  and  intended  only  to  sue  for 
those  described  in  the  first  period;  thus,  as 
to  such  other  acts,  giving  rise  to  the  impli- 
cation that  their  averment  was  the  result 
of  the  instigation  of  some  person  not  au- 
thorized  to  act,  probably  impelled  by  some 
interest  direct  or  indirect  in  the  liquidation 
of  [297]  the  community  property  whidi 
would  follow  if  the  prayer  ot  the  complain- 
ant had  been  granted. 

In  a  careful  opinion  the  court  below,  re- 
viewing the  action  of  the  court  of  first  in- 
stance, adopted  and  reafiirmed  in  every 
substantial  particular  the  facts  found  by 
that  court,  and  also  agreed  with  the  legal 
conclusions  which  the  court  had  applied  to 
the  facts  by  it  found.  In  applying  the  law 
to  the  facts  it  was  pointed  out  that  the  con- 
trolling law  was  to  be  found  not  in  the 
Civil  Code,  but  in  the  Partidas,  and  it  was 
held  that  as  by  provisions  of  the  Partidas 
which  were  cited  it  was  expressly  provided 
that  condonement  or  forgiveness  of  acts  of 
adultery  excluded  the  subsequent  right  to 
relief  based  upon  the  fact  that  they  had 
been  committed,  it  followed  from  the  con- 
clusive proof  of  forgivenesff  resulting  from 
the  facts  found  that  no  error  had  been  com- 
mitted in  rejecting  the  demand  for  a  di- 
vorce. In  stating  the  reasons  which  led  it 
to  this  conclusion  the  mind  of  the  court  was 
principally  directed  to  the  acts  of  infidelity 
found  to  have  been  committed  during  the 
first  period  and  the  acts  by  which  forgive- 
ness as  to  them  had  been  Indubitably  estab- 
lished. But  the  court,  considering  the  facts 
found  as  to  the  other  two  periods,  without 
deciding  that  such  acts  of  infidelity  had  not 
been  condoned,  expressly  held  that  the  neces- 
sary result  of  the  provisions  of  the  Partidas 
which  had  been  applied  by  the  lower  court, 
exclusively  confining  the  right  to  relief  for 
acts  of  Uifldelity  to  the  injured  spouse, 
plainly  justified  the  court  of  first  instance 
in  its  ruling  that  the  disclaimer  of  all  right 
to  relief  as  to  any  acts  but  those  which  the 
complaint  alleged  were  committed  during 
the  first  period  excluded  all  right  to  recover 
for  any  but  those  acts,  to  which  the  con- 
troversy thus  became  confined. 

The  first  two  of  the  nine  assignments,  of 
error  question  the  finding  and  ruling  of  the 
court  concerning  the  acts  committed  during 
the  first  period  and  their  condonement  or 
forgiveness.  The  third  and  fourth 
29« 


the  correctness  [298]  of  the  ooaclusion  con- 
cerning the  second  and  fourth  periods  and 
the  ruling  of  the  court  relating  to  them, 
based  on  the  disclaimer  made  by  the  com- 
plainant in  her  testimony  of  any  right 
to  relief  on  account  of  them;  and  as  cog- 
nate to  this  subject,  the  fifth  complains 
of  the  action  of  the  court  in  analyzing 
the  motives  which  prompted  the  inclusion 
in  the  suit  of  causes  upon  which  the  com- 
plainant asserted  she  did  not  rely  for 
relief,  for  the  purpose  of  bringing  the 
case  within  the  rule  laid  down  in  Laws  1 
and  2,  title  9,  Partida  4,  which  both  courts 
applied.  The  remainder  In  general  terms 
but  assert  error  committed  in  the  findings 
and  in  the  law  which  was  applied  to  them 
in  deciding  the  cause. 

Although  the  arguments  pressed  at  bar 
to  sustain  these  assignments  apparently  en- 
large them,  in  substance  they  add  nothing 
to  them,  but  simply  reiterate  in  changed 
and  more  minute  forms  of  statement  the 
groiuds  of  error  asserted  in  the  assign- 
ments. Under  these  conditions  it  is  ap- 
parent that  all  the  errors  relied  upon* 
whether  embraced  in  the  assignments  or 
pressed  in  the  argument,  considered  in  their 
essence,  only  dispute  the  correctness  of  the 
facts  found  by  both  the  courts  below,  and 
but  challenge  the  accuracy  of  the  principles 
of  the  local  law  which  were  applied  to  the 
facts  for  the  purpose  of  deciding  the  cause. 
Under  these  circumstances,  without  noticing 
more  in  detail  either  the  assignments  or  the 
arguments  supporting  them,  we  content  our- 
selves with  saying  that  we  are  of  the  opin- 
ion, after  examining  and  weighing  them  all, 
that  they  are  without  merit  for  the  follow- 
ing reasons:  (a)  Because  in  so  far  as 
they  dispute  the  concurrent  findings  of  fact 
of  both  the  courts  below,  they  entirely  fail 
to  give  rise  to  that  conviction  of  clear  error 
which  must  be  entertained  in  order  to  au- 
thorize a  reversal  of  the  findings  (Texas  ft 
P.  R.  Co.  V.  Railroad  Commission,  282  U. 
8.  338,  58  L.  ed.  630,  34  Sup.  Ct.  Rep.  438; 
Gilson  V.  United  States,  234  U.  S.  380,  383, 
384,  58  L.  ed.  1361,  1362,  1363,  34  Sup.  Ct. 
Rep.  778) ;  and  (b)  be<Miuse  in  so  far  as 
they  challenge  the  correctness  of  the  [299] 
application  which  the  courts  made  of  the 
local  law  to  the  facts  in  deciding  the  cause, 
they  are  totally  deficient  in  that  persuasive 
strength  which  it  is  essential  they  should 
possess  in  order  to  produce  the  conviction 
that  clear  error  was  committed  by  the  court 
below,  and  thus  lead  us  to  depart  from  the 
principle  by  which  we  follow  and  sustain 
the  local  law  as  applied  by  the  court  below 
unless  we  are  constrained  to  the  contrary 
by  a  sense  of  clear  error  committed  (Ker 
k  Co.  V.  Couden,  223  U.  S.  268,  279,  56  L. 
ed.  432,  435,  32  Sup.  Ct  Rep.  284;  Santa 

239  U.  S. 


1915. 


MACKENZIE  v.  HARK 


S90 


Fe  C.  IL  Co.  V.  Friday,  232  U.  S.  604,  700, 
68  L.  ed.  802,  803,  34  Sup.  Ct.  Rep.  468; 
Nadal  v.  May,  233  U.  S.  447,  454,  58  L.  ed. 
1040,  1041,  34  Sup.  Ct.  Uep.  Uilj. 
Affirmed. 


ETHEL  C.  MACKENZIE,  Plff.  In  Err., 

V. 

JOHN  P.  HARE,  Thomas  V.  Cater,  Charlea 
L.  Queen,  William  McDevitt,  and  John 
Herman,  as  and  C'Omposins  the  Board  of 
Election  Commissioners  of  the  City  and 
County  of  San  Francisco. 

(See  8.  C.  Reporter's  ed.  209-312.) 

Oltisens  ^  expatriation  ^  marriage  with 
foreigner. 

1.  No  exception  in  favor  of  an  Ameri- 
ean-bom  woman  who  marries  a  resident 
foreigner  and  remains  within  the  jurisdic- 
tion of  the  United  States  may  be  read  into 
the  provisions  of  the  act  of  March  2,  1907 
(S4  Stat,  at  L.  1228,  chap.  2534,  Comp. 
SUt  1913,  §  3960),  that  "any  American 
woman  who  marries  a  foreigner  shall  take 
the  nationality  of  her  husband/'  but  may 
resume  her  American  citizenship  at  the 
termination  of  the  marital  relation,  if  with- 
in the  United  States,  by  her  continuing  to 
reside  therein,  and,  if  abroad,  by  returning 
to  the  United  States,  or  by  registering  as 
SB  American  citizen. 

[For  other  csRet.  see  Citlsens,  IV.,  in  Digest 
Sap.  Ct.  1908.J 

CItlxens  —  expatriation  —  marriage  with 
foreigner. 

2.  Congress  could  validly  enact  the  pro- 
visions of  the  act  of  March  2,  1907  (34 
Stat  at  L.  1228,  chap.  2534,  Comp.  Stat. 
1913,  §  3960),  under  which  an  American- 
bom  woman  who  marries  a  foreigner  for- 
feits her  citizenship,  even  though  she  re- 
mains within  the  jurisdiction  of  the  United 
SUtes. 

[For  other  cases,  see  Cltlzent,  IV.,  in  Digest 
8op.  Ct.  1908.1 

[No.  79.] 

Argued  November   11   and   12,   1915.     De- 
cided December  6,  1915. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  California  to  review  a  decree 
which  denied  a  writ  of  mandamus  to  com- 
pel election  officers  to  register  as  an  elector 
ta  American-bom  woman  who  had  married 
a  subject  of  Great  Britain.    Affirmed. 

See  same  case  below,  165  Cal.  776, 
LJtJL1916D,  127,  134  Pac.  713,  Ann.  Cas. 
1916B,  261. 

The  facts  are  stated  in  the  opinion. 

NoTTB.— On  the  eflfect  of  marriage  on  wife's 
itatus  as  an  alien — sec  note  to  Comitis  ▼. 
Parkerson,  22  L.R.A.  148. 
•0  L.  ed. 


Mr.  Milton  T.  Ulteii  argued  the  cause 
and  filed  a  brief  for  plaintiff  in  error : 

It  was  never  the  intention  of  Congress 
to  deprive  an  American-bom  woman  remain- 
ing within  the  jurisdiction  of  the  United 
States  of  her  citizenship  by  reason  of  her 
marriage  to  a  resident  foreigner. 

Re  Wildberger,  214  Fed.  508;   Re  Levy, 

1  Bart.  Elec.  Cas.  41. 

Plaintiff,  having  been  bom  within  the 
United  States,  and  subject  to  the  jurisdic- 
tion thereof,  became  a  citizen  by  the  fact 
of  her  birth. 

7  Cyc  137;  Inglis  v.  Sailor's  Snug  Har- 
bor, 3  Pet.  99,  7  L.  ed.  617;  United  States 
v.  Wong  Kim  Ark,  169  U.  S.  649,  42  L.  ed. 
890,  18  Sup.  Ct.  Rep.  456. 

Sex  is  not  involved  in  the  question  of 
citizenship. 

Abbott's  Law  Diet;  Minor  v.  Ilappcrsett, 
21  WalL  162,  22  L.  ed.  627;  SUte  ex  rel. 
Campbell  v.  Howard  County  Ct.  90  Mo.  593, 

2  S.  W.  788;  Ritchie  v.  People,  156  111.  98, 
29  L.R.A.  79,  46  Am.  St.  Rep.  315,  40  N. 
E.  454;  Re  Lockwood,  154  U.  S.  116,  38  L. 
ed.  929,  14  Sup.  Ct.  Rep.  1082;  Slianks  v. 
Dupont,  3  Pet.  242,  7  L.  ed.  666. 

For  definitions  of  expatriation,  see: 

Webster's  Universal  Diet. ;  Bouvier's  Law 
Diet.;  Standard  Diet.;  14  Ops.  Atty.  Gen. 
295;  Morse,  Citizenship,  p.  114,  f  82; 
Black's  Law  Diet. 

The  prevalent  doctrine  of  this  country 
always  has  been  that  a  citizen  has  the  right 
to  expatriate  himself. 

Brannon,  14th  Amend,  p.  21;  Re  Look 
Tin  Sing,  21  Fed.  907;  9  Ops.  Atty.  Gen. 
62;  9  Fed.  Stat.  Anno.  pp.  390,  391. 

Expatriation  is  a  natural  and  inherent 
right. 

7  Cyc  144;  Browne  v.  Dexter,  66  Cal. 
39,  4  Pac.  913. 

Actual  removal  is  a  necessary  element 
of  expatriation. 

6  Am.  &  Eng.  Enc.  Law,  31;  14  Ops. 
Atty.  Gen.  295;  9  Ops.  Atty.  Gen.  62; 
Stoughton  V.  Taylor  (Juando  ▼.  Taylor) 
2  Paine,  652,  Fed.  Cas.  No.  7,558;  7  Cyc. 
145,  156;  Hardy  v.  De  Leon,  5  Tex.  211. 

As  to  the  nature  of  allegiance,  see — 

Standard  Diet.;  Inglis  v.  Sailors'  Snug 
Harbor,  8  Pet.  99,  7  L.  ed.  617;  Burkett  v. 
McCarty,  10  Bush,  758;  Ainslie  v.  Martin, 
9  Mass.  454. 

Granting,  for  the  purpose  of  the  argu- 
ment, that  certain  authority  over  expatria- 
tion resides  in  Congress  by  implication, 
nevertheless  such  implied  power  is  not  un- 
limited. It  is  not  an  arbitrary  and  despot 
ie  power  under  which  Congress  may  take 
from  a  citizen  his  rights  of  citizenship  with- 
out that  citizen's  consent. 

Scott  v.  Sandford,  19  How.  393,  448,  15 
L.  ed.  691,  719;   Burkett  v.  McCarty,   10 

^^1 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TkBM, 


BttBh,  758;  Ainslie  ▼.  Martin,  9  Mass.  464; 
Re  Look  Tin  Sing,  21  Fed.  905;  Osborn 
V.  Bank  of  United  States,  9  Wheat  738, 
825,  6  L.  ed.  204,  225;  United  States  ▼. 
Wong  Kim  Ark,  169  U.  S.  703,  42  L.  ed. 
910,  18  Sup.  Ct.  Rep.  456. 

Marriage  in  itself  is  not  an  act  of  expa- 
triation. 

Comitis  ▼.  Parkerson,  22  hJSLA.  148,  66 
Fed.  556;  Wallenburg  y.  Missouri  P.  R. 
Co.  159  Fed.  217;  Brannon,  14th  Amend, 
p.  28;  15  Ops.  Atty.  Gen.  599;  10  Ops. 
Atty.  Gen.  321 ;  Ruckgaber  * .  Moore,  104 
Fed.  047;  Shanks  v.  Dupont,  3  Pet.  242, 
7  L.  ed.  666;  Beck  ▼.  McGillU,  9  Barb.  35. 

It  is  true  that  the  English  and  Con- 
tinental courts  have  held  for  a  long  time 
to  the  doctrine  of  the  merging  of  the  iden- 
tity of  the  wife  with  that  of  her  husband. 
Under  such  a  doctrine  the  wife  was  held 
not  to  have  a  citizenship  separate  and  apart 
from  that  of  her  husband.  In  contempla- 
tion of  law,  she  and  her  husband  were  one, 
and  that  one  was  the  husband.  This  doc- 
trine, however,  in  so  far  as  it  involves  the 
political  rights  of  a  woman,  has  never  been 
the  law  in  the  United  SUtes. 

Shanks  v.  Dupont,  supra;  Comitis  v. 
Parkerson,  22  L.RJ^.  150,  note. 

The  doctrine  of  the  merging  of  identity 
is  obsolete,  and  the  cases  decided  upon  such 
reasoning  are  no  longer  authority. 

Williamson  v.  Osenson,  232  U.  S.  610, 
58  L.  ed.   758,  34   Sup.   Ct.   Rep.   442. 

No  constitutional  rights  or  privileges  of 
an  American  citizen  can  be  abridged  or 
taken  away  by  international  law. 

Scott  V.  Sandford,  19  How.  393,  461,  15 
U  ed.   691,   720. 

It  is  the  duty  of  courts  to  be  watchful 
for  the  constitutional  rights  of  the  citizen, 
and  against  any  stealthy  encroachments 
thereon.  Their  motto  should  be  obsia  prin- 
oifHts. 

Boyd  V.  United  States,  116  U.  S.  616, 
635,  20  L.  ed.  746,  752,  6  Sup.  Ct.  Rep.  624. 

Mr.  Thomas  V.  Cater  argued  the  cause, 
and,  with  Messrs.  Percy  V.  Long  and  Wil- 
liam McDevitt,  filed  a  brief  for  defendants 
in  error: 

The  residence  of  the  wife  is  immaterial. 
It  is  the  act  of  marriage  which,  ipso  fctcto, 
causes  her  to  take  the  nationality  of  the 
alien  husband. 

Pequignot  v.  Detroit,  16  Fed.  211;  Kane 
V.  McCarthy,  63  N.  C.  299;  Headman  ▼. 
Rose,  63  Ga.  458;  Ware  v.  Wisner,  50  Fed. 
310;  Kelly  v.  Owen,  7  Wall.  496,  19  L.  ed. 
283;  Dorsey  ▼.  Brigham,  177  111.  256,  42 
L.R.A.  800,  69  Am.  St.  Rep.  228,  52  N.  E. 
303;  Hopkins  v.  Fachant,  65  C.  C.  A.  1,  130 
Fed.  842;  United  States  v.  Kellar,  13  Fed. 
82,  note;  Leonard  ▼.  Grant,  5  Fed.  13;  I 
298 


Halsey  v.  Beer,  52  Hun,  366,  5  N.  T.  Supp. 
334;  People  v.  Newell,  38  Hun,  79;  Gumm 
V.  Hubbard,  97  Mo.  321,  10  Am.  St.  Rep. 
312,  11  S.  W.  61;  Kircher  ▼.  Murray,  54 
Fed.  621;  Re  Nicola,  106  C.  C.  A.  464,  184 
Fed.  322;  14  Ops.  Atty.  Gen.  402;  United 
States  ex  rel.  Gendering  v.  Williams,  173 
Fed.  626;  Re  Rionda,  164  Fed.  368;  United 
States  V.  Cohen,  29  L.RJ^.(N.S.)  829,  103 
C.  C.  A.  28,  179  Fed.  834. 

The  citizenship  of  a  native-bom  citizen 
may  be  lost  or  taken  away  by  hi&  own  acta. 

United  SUtes  v.  Wong  Kim  Ark,  169  U. 
S.  649,  42  L.  ed.  890,  18  Sup.  Ct.  Rep. 
456. 

The  14th  Amendment  did  not  alter  the 
status  of  free  white  persons,  as  previously 
existing. 

VirginU  v.  Rives,  100  U.  S.  313,  25  U 
ed.  667,  3  Am.  Crim.  Rep.  524;  United 
SUtes  V.  Wong  Kim  Ark,  169  U.  S^  674, 
42  L.  ed.  899,  18  Sup.  Ct.  Rep.  456. 

All  writers  on  inUmational  law  or  on 
the  subject  of  citizenship  treat  the  power 
of  the  sovereignty  over  the  subject  of  ex- 
patriation as  fundamenUl. 

3  Moore,  International  Law,  p.  712;  Van 
Dyne,  Citizenship,  p.  272;  2  Wharton,  In- 
ternational Law  Dig.  §  176,  p.  360;  Shanks 
V.  Dupont,  3  Pet.  242,  7  L.  ed.  666;  Mur- 
ray V.  The  Charming  Betsy,  2  Crandi,  120, 
2  L.  ed.  226;  Talbot  v.  Janson,  3  Dall.  154, 
1  L.  ed.  549;  Murray  v.  M'Carty,  2  Muni. 
396;  Comitis  v.  Parkerson,  22  L.R.A.  148, 
66  Fed.  556;  Pequignot  v.  Detroit,  16  Fed. 
211. 

All  writers  on  the  law  of  citizenship  treat 
marriage  as  a  mode  of  expatriation. 

Cockbum,  Nationality,  p.  24;  Leonard  v. 
Grant,  5  Fed.  11;  Kelly  v.  Owen,  7  WalL 
496,  19  L.  ed.  283;  Van  Dyne,  Naturalixap 
tion,  1907  ed.  pp.  227,  333-357;  Van  Dyne, 
Citizenship  (see  head  ''Expatriation*')  ;  2 
Wharton,  International  Law  Dig.  §  186,  p. 
420;  3  Moore's  Digest  of  International  Law, 
p.  448;  Webster,  Citizenship,  pp.  297,  298; 
Brannon,  14th  Amend,  p.  28;  Bouv^,  Ex- 
clusion of  Aliens,  pp.  389,  300. 

Transfer  of  allegiance  by  marriage  resU 
upon  international  principles,  apart  from 
the  idea  of  emigration. 

United  SUtes  ex  rel.  Gendering  ▼.  Wil- 
liams, 173  Fed.  626;  Pequignot  ▼.  Detroit, 
16  Fed.   211. 

The  act  of  1907,  as  to  §  3,  was  adopted 
by  Congress  for  the  express  purpose  of 
announcing  iU  express  confirmation  of  the 
doctrine  that  marriage  of  a  native  woman 
to  a  foreigner  should  operate  in  the  man- 
ner decided  in  the  case  of  Pequignot  v.  De- 
troit, regardless  of  the  re8i(!ence  of  the 
wife. 

The  transfer  of  allegiance  of  a  woman 

239  U.  8. 


1915.                                               MACKENZIE  ▼.  HARE.  306-307 

marrying  a  foreigner  rests  upon  interna-  riage  the  plaintiff  and  her  husband  have 
tional  law  or  comity;  and  the  case  of  lived  together  as  husband  and  wife.  On 
Shanks  ▼.  Dupont,  3  Pet.  242,  7  L.  ed.  January  22,  1913,  she  applied  to  the  de- 
686,  does  not  hold  that  the  removal  of  the  fendants  to  be  registerdl  as  a  voter.  She 
wife  is  necessary.  was  then  over  the  age  of  twenty-one  years 
A  woman  by  n;arriage  to  a  foreigner  takes  and  had  resided  in  San  Francisco  for  more 
the  same  nationality  as  the  husband  in  all  than  ninety  days.  Registration  was  re- 
the  countries  of  the  world,  and  the  effect  fused  to  her  on  the  ground  that,  by  reason 
if  the  same  in  the  country  of  her  nativity  of  her  marriage  to  Gordon  Mackensie,  a 
•I  elsewhere,  if  her  former  sovereign  con-  subject  of  Great  Britain,  she  thereupon 
Mats.  took  the  nationality  of  her  husband  and 
Moore's  Dijest  of  International  Law,  ceased  to  be  a  citizen  of  the  United  States." 
n^ra,  |  412;  Pequignot  ▼.  Detroit,  supra;  [165  Gal.  778,  L.R.A.1916D,  127,  134  Pae. 
United  SUtes  ex  rel.  Gendering  v.  WU-  713,  Ann.  Gas.  1915B,  261.] 
liams,  173  Fed.  627,  106  C.  G.  A.  464,  184  Plaintiff  in  error  claims  a  right  as  a  voter 
Fed.  322;  Halsey  ▼.  Beer,  62  Hun,  366,  6  of  the  state  under  its  Gonstitution  and  the 
K.  T.  Supp.  334 ;  People  v.  Newell,  38  Hun,  Gonstitution  of  the  United  SUtes. 
79;  Kane  v.  McGarthy,  63  N.  G.  299;  The  Gonstitution  of  the  sUte  gives  the 
Headman  v.  Rose,  63  Ga.  468;  Ware  ▼.  Wis-  privilege  of  suffrage  to  "every  native 
ser,  60  Fed.  310.  citizen  of  the  United  States,"  and  it  is  eon- 
!nie  act  of  1007  is  in  clear  and  specific  tended  that  under  the  Gonstitution  of 
terms,  and  mandatory  in  its  expression,  and  the  United  States  every  person  bom  in  the 
intended  the  transfer  of  allegiance  to  be  United  States  is  a  citizen  thereof.  The 
uamediate  upon  marriage;  and  did  not  con-  latter  must  be  conceded,  and  if  [307]  plain- 
template  leaving  open  any  question  as  to  the  tiff  has  not  lost  her  citizenship  by  her  mar- 
nature  of  residence  abroad.  The  act  has  riage,  she  has  the  qualification  of  a  voter 
been  so  interpreted  by  the  State  Depart-  prescribed  by  the  Gonstitution  of  the  state 
ment  at  Washington,  and  also  by  the  Fed-  of  Galifornia.  The  question  then  is.  Did 
eral  courts.  she  cease  to  be  a  citizen  by  her  marriage? 

See  letter  of  Huntington  Wilson,  Acting  On  March  2,  1907,  that  is,  prior  to  the 

Secretary  of  State,  to  Mr.  Kent,  March  13,  marriage    of    plaintiff    in    error,    Gongress 

1912;    Re   Rionda,   164    Fed.   368;    United  enacted  a  statute  the  3d  section  of  which 

States  V.  Gohen,  29  L.RJl.(N.S.)   829,  103  provides:  "That  any  American  woman  who 

C  G.  A.  28,  179  Fed.  836.  marries  a  foreigner  shall  take  the  nation- 

alitv  of  her  husband.     At  the  termination 
Mr.  Justice  McKenna  delivered  the  opin-  ^f  ^he  marital  relation  she  may  resume  her 
ton  of  the  court:                       ,...«.  American  citizenship,  if  abroad,  by  register- 
Mandamus  prosecuted  by  plsintiff  in  er-    .^^  ..\.«  a«,««'«-«  «:♦:—«  .„:*u:J.  -.„ 

...^                .xj*jx  >ng  as  an  American  citizen  within  one  year 

ror    as    petitioner    against    defendants    in  .*:,                 i     *  xu     tt  'i.  j  o-l  x            w 

J     4.               •!                     r»«^M-.  with  a  consul  ox  the  United  States,  or  bv 

•rror,  respondents,  as  and  composing  [306]  .       ...         -^    -    X    tT*^  o? * 

the  board  of  election  commissioners  of  the  f,"*""l"!«  ^^Z"*",^^  "?  *^^^"i,*'^.  ^^^'  ^'^ 

city  and  county  of  San  Francisco,  to  compel  'J  '?»^1?«  '^,  **^«    U"?*«f    ^tates    at    the 

her  registration  as  a  qualified  voter  of  the  ^™»natio"  of  the  marital  relation,  by  con- 

city  and  county,  in  the  appropriate  pre-  *l!!>"o'"*u^  'ofi/ o^""'"";    .^M.^^^.Hh 

dnct  therein  ^^^®'  ^***P-  ^^^^'  ^™P-  ^*^**-  ^®^^»  *  ^^^^1 

An  alternative  writ  was    issued,    but    a  Plaintiff  contends  that  "such  legislation, 

permiinent  writ  was  denied  upon  demurrer  '^  intended  to  apply  to  her,  is  beyond  the 

to  the  petition.  authority  of  Gongress." 

The  facts  are  not  in  dispute  and  are  sUted  ^  Q^f  tion»  of  construction  and  power  are, 

by  Mr.  Justice  Shaw,    who    delivered    the  ^^'^f'^^^l  P;e»«'»*«d.    Upon  the  construction 

opinion  of  the  court,  as  follows:  f  ^^«  *^,*  *V"  "'^^''^  *  f*  '*  ^^"^  u""*  ^^"^  ^" 

"The  pUintiff  was  born  and  ever  since  ^"*»**^  to  deprive  an  Amencan-bom  worn- 

has  resided  in  the  sUte  of  Galifornia.  On  ff'.fTcfl''*  """.*  v""  *^^J^"^/<^*">^  o'  ^« 
August  14,  1909,  being  then  a  resident  and  ^J"'^^  ^^^^.*  ^^  ^*^'  citizenship  by  reason 
dtisen  of  this  state  and  of  the  United  <^'  ^«'  marriage  to  a  resident  foreigner. 
States,  she  was  Uwfully  married  to  Gordon  The  contention  is  attempted  to  be  based 
Mackenzie,  a  native  and  subject  of  the  wpon  the  hUtory  of  the  act  and  upon  the 
kingdom  of  Great  BriUin.  He  had  resided  report  of  the  committee,  upon  which,  it  is 
in  Galifornia  prior  to  that  time,  still  re-  "aid.  the  legislation  was  enacted.  Both  his- 
sides  here^  and  it  is  his  intention  to  make  tory  and  report  show,  it  is  asserted,  "that 
this  state  his  permanent  residence.  He  has  the  intention  of  Gongress  was  solely  to  Ic^is- 
not  become  naturalized  as  a  citizen  of  the  late  concerning  the  status  of  citizens  abroad 
United  States  and  it  does  not  appear  that  and  the  questions  arising  by  reason  there- 
he  intends  to  do  so.  Ever  since  their  mar-  of." 
•0  li.  ed.  %%^ 


807-4110 


SUPREME  OOURT  OF  THE  UNITED  STATES. 


Oct.  TkBM, 


Does  the  act  invite  or  permit  such  assist- 
ance? Its  declaration  is  general,  "that  any 
American  woman  who  marries  a  foreigner 
shall  take  the  natfbnality  of  her  husband.*' 
There  is  no  limitation  of  place;  there  is  no 
limitation  of  effect,  the  marital  relation 
having  been  constituted  and  continuing. 
For  its  termination  there  is  provision,  and 
explicit  provision.  At  its  termination  she 
may  resume  [308]  her  American  citizenship 
if  in  the  United  States  by  simply  remaining 
therein ;  if  shroad,  by  returning  to  the  Unit- 
ed States,  or,  within  one  year,  registering  as 
an  American  citizen.  The  act  is  therefore 
explicit  and  circumstantiaL  It  would  tran- 
scend judicial  power  to  insert  limitations 
or  conditions  upon  disputable  considerations 
of  reasons  which  impelled  the  law,  or  of  con- 
ditions to  which  it  might  be  conjectured  it 
was  addressed  and  intended  to  accom- 
modate. 

Whatever  was  said  in  the  debates  on  the 
bill  (M-  in  the  reports  concerning  it,  preced- 
ing its  enactment  or  during  its  enactment, 
must  give  way  to  its  language;  or,  rather, 
all  the  reasons  that  induced  its  enactment 
and  all  of  its  purposes  must  be  supposed  to 
be  satisfied  and  expressed  by  its  words,  and 
it  makes  no  difference  that  in  discussion 
some  may  have  been  given  more  prominence 
than  others,  seemed  more  urgent  and  insist- 
ent than  others,  presented  the  mischief  in- 
tended to  be  remedied  more  conspicuously 
than  others. 

The  application  of  the  law  thus  being 
determined,  we  pass  to  a  consideration  of 
its  validity. 

An  earnest  argument  Is  presented  to 
demonstrate  its  invalidity.  Its  basis  is  that 
the  citizenship  of  plaintiff  was  an  incident 
to  her  birth  in  the  United  States,  and,  under 
the  Constitution  and  laws  of  the  United 
States,  iit  became  a  right,  privilege,  and  im- 
munity which  could  not  be  taken  away  from 
her  except  as  a  punishment  for  crime  or  by 
her  voluntary  expatriation. 

The  argument  to  support  the  contention 
and  the  argument  to  oppose  it  take  a  wide 
range  through  the  principles  of  the  com- 
mon law  and  international  law  and  their 
development  and  change.  Both  plaintiff  and 
defendants  agree  that  under  tiie  common 
law  originally  allegiance  was  immutable. 
They  do  not  agree  as  to  when  the  rigidity 
of  the  principle  was  relaxed.  Plaintiff  in 
error  contests  the  proposition  which  she  at- 
tributes to  defendants  in  error,  [300]  "that 
the  doctrine  of  perpetual  allegiance  main- 
tained by  England  was  accepted  by  the  Unit- 
ed States,"  but  contends  "that  the  prevalent 
doctrine  of  this  country  always  has  been 
that  a  citizoi  had  a  right  to  expatriate 
himself,"  and  dtes  cases  to  show  that  ex- 
patriation is  a  natural  and  inherent  right. 

soo 


Whether  this  was  originally  the  law  of 
this  country  or  became  such  by  inevitable 
evolution  it  is  not  important  to  inquire. 
The  first  view  has  certainly  high  authority 
for  its  support.  In  Shanks  v.  Dupont,  S 
Pet.  242,  246,  7  L.  ed.  666,  668,  Mr.  Justice 
Story,  delivering  the  judgment  of  the  courts 
said:  "The  general  doctrine  is,  that  no 
persons  can  by  any  act  of  their  own,  with- 
out the  consent  of  the  government,  put  off 
their  allegiance,  and  become  aliens."  And 
Kent,  in  his  Commentaries,  after  a  his- 
torical review  of  the  principle  and  discus- 
sion in  the  Federal  courts,  declares  that 
"the  better  opinion  would  seem  to  be^  that 
a  citizen  cannot  renounce  his  allegiance  to 
the  United  States  without  the  permission  of 
government  to  be  .declared  by  law ;  and  that» 
as  there  is  no  existing  legislative  regula- 
tion on  the  case,  the  rule  of  the  English 
common  law  remains  unaltered."  2  Kent» 
14th  ed.  40.  The  deduction  would  seem  to 
have  been  repelled  by  the  naturalization 
laws,  and  it  was  certainly  opposed  to  ex- 
ecutive opinion;  and,  we  may  say,  popular 
sentiment,  so  determined  that  it  sought  its 
vindication  by  war.  Further  discussion 
would  lead  us  far  afield,  and,  besides,  would 
only  have  historical  interest.^  The  con- 
dition which  Kent  suggested  has  occurred; 
there  is  a  legislative  declaration.  In  1868 
Congress  explicitly  declared  the  right  of 
expatriation  to  have  been  and  to  be  the  law. 
And  the  declaration  was  in  effect  said  to  be 
the  dictate  of  necessity.  [310]  The  act  re- 
cites that  emigrants  have  been  received  and 
invested  with  citizenship  in  recognition  of 
the  principle  of  the  right  of  expatriation 
and  that  there  should  be  a  prompt  and  final 
disavowal  of  the  claim  "that  such  American 
citizens,  with  their  descendants,  are  subjects 
of  foreign  states."  Rev.  Stat.  §  1099,  Comp. 
Stat.  1913,  §  3056. 

But  plaintiff  says,  "Expatriation  is  evi- 
denced only  by  emigration,  coupled  with 
other  acts  indicating  an  intenti<m  to  trans- 
fer one's  allegiance."  And  all  the  acts  must 
be  voluntary,  "the  result  of  a  fixed  de- 
termination to  change  the  domicil  and  per- 
manently reside  elsewhere,  as  well  as  to 
throw  off  the  former  allegiance,  and  become 
a  citizen  or  subject  of  a  foreign  power." 

The  right  and  the  condition  of  its  exer- 
cise being  thus  defined,  it  is  said  that  the 
authority  of  Congress  is  limited  to  giving 
its  consent.  This  is  variously  declared  and 
emphasized.  "No  act  of  the  legislature," 
plaintiff  says,  "'can  denationalize  a  citizen 

iThe  course  of  opinion  and  decision  is 
set  forth  in  Van  Dyne's  "Citizenship  of  the 
United  States,"  and  in  his  "Naturalization 
in  the  United  SUtes."  Moore's  Digest  of 
International  Law.  See  also  Cockbum  on 
Nationality. 

239  U.  S. 


1915. 


ESSEX  ▼.  NEW  ENGLAND  TELEO.  00. 


8ia-31S 


withoat  his  conearrence/ "  citing  Burkett 
y.  McCarty,  10  Bush,  768.  "And  the  fov- 
ereign  cannot  discharge  a  subject  from  his 
allegiance  against  his  consent  except  by 
disfranchisement  as  a  punishment  for 
crime,"  citing  Ainslie  v.  Martin,  9  Mass. 
454.  "The  Constitution  does  not  authorize 
Congress  to  enlarge  or  abridge  the  rights 
of  citizens,"  citing  Osbom  ▼.  Bank  of  United 
SUtes,  0  Wheat  738,  6  L.  ed.  204.  "The 
power  of  naturalization  vested  in  Congress 
by  the  Constitution  is  a  power  to  confer 
citizenship,  not  a  power  to  take  it  away. 
.  •  •  The  14th  Amendment,  while  it 
leaves  the  power  where  it  was  before,  in 
Congress,  to  regulate  naturalization,  has 
conferred  no  authority  upon  Congress  to  re- 
strict the  effect  of  birth  declared  by  the 
Constitution  to  constitute  a  sufficient  and 
complete  right  to  citizenship;"  citing  Unit- 
ed SUtes  V.  Wong  Kim  Ark,  169  U.  S.  at 
p.  703,  42  L.  ed.  910,  18  Sup.  Ct.  Rep.  456. 

It  will  thus  be  seen  that  plaintiff's  con- 
tention is  in  exact  antagonism  to  the  stat- 
ute. Only  volunti^ry  expatriation,  [311]  as 
she  defines  it,  can  devest  a  woman  of  her 
citizenship,  she  declares;  the  statute  pro- 
fides  that,  by  marriage  with  a  foreigner,  she 
takes  his  nationality. 

It  would  make  this  opinion  very  volumi- 
nous to  consider  in  detail  the  argument  and 
the  cases  urged  in  support  of  or  in  attack 
upon  the  opposing  conditions.  Their  foun- 
dation principles,  we  may  assume,  are 
known.  The  identity  of  husband  and  wife 
is  an  ancient  principle  of  our  jurispru- 
dence. It  was  neither  accidental  nor  arbi- 
trary, and  worked  in  many  instances  for 
her  protection.  There  has  been,  it  is  true, 
much  relaxation  of  it,  but  in  its  retention 
as  in  its  origin  it  is  determined  by  their 
intimate  relation  and  unity  of  interests, 
and  this  relation  and  unity  may  make  it 
of  public  concern  in  many  instances  to 
merge  their  identity,  and  give  dominance  to 
the  husband.  It  has  purpose,  if  not  neces- 
sity, in  purely  domestic  policy ;  it  has  great- 
er purpose,  and,  it  may  be,  necessity,  in 
international  policy.  And  this  was  the 
dictate  of  the  act  in  controversy.  Having 
this  purpose,  has  it  not  the  sanction  of 
power? 

Plaintiff  contends,  as  we  have  seen,  that  it 
has  not,  and  bases  her  contention  upon  the 
absence  of  an  express  gift  of  power.  But 
there  may  be  powers  implied,  necessary  or 
incidental  to  the  expressed  powers.  AAs  a 
government,  the  United  States  is  invested 
with  all  the  attributes  of  sovereignty.  As 
it  has  the  character  of  nationality  it  has 
the  powers  of  nationality,  especially  those 
whidi  concern  its  relations  and  intercourse 
with  other  countries.  We  should  hesitate 
long  before  limiting  or  embarrassing  such 
powers.^  Bat  monition  is  not  necessary  in 
•0  li.  ed. 


the  present  case.  There  need  be  no  dissent 
from  the  cases  cited  by  plaintiff;  there  need 
be  no  assertion  of  very  extensive  power  over 
the  right  of  citizenship  or  of  the  impera- 
tive imposition  of  conditions  upon  it.  It 
may  be  conceded  that  a  change  of  citizen- 
ship cannot  be  arbitrarily  imposed,  that  is, 
imposed  without  the  ooncurrenoe  of  the 
citizen.  The  law  in  controversy  does  not 
have  that  feature.  It  deals  with  [312]  a 
condition  voluntarily  entered  into,  with  no- 
tice of  the  consequences.  We  concur  with 
counsel  that  citizenship  is  of  tangible  worth, 
and  we  sympathize  with  plaintiff  in  her  de- 
sire to  retain  it  and  in  her  earnest  assertion 
of  it.  But  there  is  involved  more  than 
personal  considerations.  As  we  have 
seen,  the  legislation  was  urged  by 
conditions  of  national  moment.  And  this 
is  an  answer  to  the  apprehension  of 
counsel  that  our  construction  of  the  legis- 
lation will  make  every  act,  though  lawful, 
as  marriage,  of  course,  is,  a  renunciation 
of  citizenship.  The  marriage  of  an  Ameri- 
can woman  with  a  foreigner  has  conse- 
quences of  like  kind,  may  involve  national 
complications  of  like  kind,  as  her  physical 
expatriation  may  involve.  Therefore,  as 
long  as  the  relation  lasts,  it  is  made  tanta- 
mount to  expatriation.  This  is  no  arbi- 
trary exercise  of  government.  It  is  one 
which,  regarding  the  international  aspects, 
judicial  opinion  has  taken  for  granted 
would  not  only  be  valid,  but  demanded.  It 
is  the  conception  of  the  legislation  under 
review  that  such  an  act  may  bring  the 
government  into  embarrassments,  and,  it 
may  be,  into  controversies.  It  is  as  volun- 
tary and  distinctive  as  expatriation  and  its 
consequence  must  be  considered  as  elected. 
Judgment  affirmed. 

Mr.  Justice  McReynolds  is  of  opinion 
that  this  court  is  without  jurisdiction,  and 
that  therefore  this  writ  of  error  should  be 
dismissed. 


[313]  TOWN  OF  ESSEX^  Appt., 

V. 

NEW  ENGLAND  TELEGRAPH  COM- 
PANY OF  MASSACHUSETTS. 

(See  8.  C.  Reporter's  ed.  313-323.) 

Commerce  ^  power  of  Congress  ^  tele- 
graph company. 

1.  Congress  did  not  exceed  its  powers 
under  the  commerce  clause  of  the  Federal 
Constitution  by  enacting  the  act  of  July 


Note. — On  the  power  of  Congress  to  regu- 
late commerce — see  notes  to  State  ex  rel. 
Corwin  v.  Indiana  k  0.  Oil,  Gas  &  Min.  Co. 
6  L.R.A.  679 ;  Bullard  v.  Northern  P.  R.  Co. 
11  L.R.A.  246;  Re  Wilson,  12  L.RJ^.  624; 
Gibbons  v.  Ogden,  6  L.  ed.  U.  S.  23;  Brown 
V.  Maryland,  6  L.  ed.  U.  S.  678;  Qlouc««tA.T 
Ferry  Co.  t.  PenntyWixiVi^  ^  \u  «^.  V>. 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tknc, 


24,  1866  (14  But  at  L.  221,  ehap.  2S0, 
Rev.  Stat  §  6263,  Comp.  8Ut.  1913,  §  10,- 
072),  giving  telegraph  companies  accepting 
its  provisions  the  right,  secured  against 
arbitrary  interference  by  the  state,  to  con- 
struct, maintain,  and  operate  their  lines 
over  and  along  any  of  the  military  or  post 
roads  of  the  United  States. 
(For  other  cases,  tee  Commerce,  III.  o,  te  Dl- 
gttt  Sap.  Ct  1908.] 

Telegraphs  —  state  Interference  ^  es- 
toppel. 

2.  A  telegraph  company  which  has  ac- 
cepted the  provisions  of  the  act  of  July 
24,  1866  (H  Stat,  at  L.  221,  chap.  230, 
Rev.  SUt.  §  6263,  Comp.  Stat.  1913,  § 
10,072),  giving  the  riffht  to  construct, 
maintain,  and  operate  telegraph  lines  over 
and  along  any  of  the  military  or  post  loads 
of  the  United  States,  is  protected  by  that 
act  against  exclusion  or  other  arbitrarv  in- 
terference by  a  town  whose  authorities, 
with  full  knowledge  of  all  the  circum- 
stances, permitted  the  location  and  con- 
struction of  such  lines  along  the  highways, 
and  for  more  than  twenty  vears  acquiesced 
in  their  maintenance  and  operation,  al- 
tiiough  the  telegraph  company  was  never 
granted  the  formal  antecedent  permit  con- 
templated by  Mass.  Pub.  Stat.  chap.  109, 
I  3,  ''specifying  where  the  posts  may  be 
located,  the  kind  of  posts,  and  the  height 
at  which  and  the  places  where  the  wires 
may  nm." 

(For  other  cases,  sec  Telegraphs,  in  Digest  8ap. 

Ct.  1908.] 
Injunction  —  against  Interference  with 

telegraph  company  —  extent  of  relief. 

3.  An  injunction  against  interference 
by  municipal  authorities  with  the  lines  of 
a  telegraph  company  which  has  accepted  the 
provisions  of  the  act  of  July  24,  1866  (14 
Stat,  at  L.  221,  chap.  230,  Rev.  Stat. 
§  5263,  Comp.  Stat.  1013,  §  10.072),  giving 
the  right  to  construct,  maintain,  and  oper- 
ate telegraph  lines  over  and  along  any  of 
the  military  or  post  roads  of  the  United 
States,  sliould  provide  that  nothing  therein 
contained  be  construed  to  prevent  such  au- 
thorities from  subjecting  the  location  and 
operation  of  the  company's  lines  to  reason- 
able regulations. 

[For  other  cases,  see  Injunction,  II.  b,  in  Di- 
gest Sup.  Ct  1908.] 

[No.  66.] 


Argued  and  submitted  November  6,  1916. 
Decided  Deoember  6,  1915. 


APPEAL  from  the  District  Court  of  the 
United  SUtes  for  the  District  of  Massa- 
chusetts to  review  a  decree  enjoining  mu- 
nicipal interference  with  the  lines  of  a 
telegraph  company.  Modified  by  subject- 
ing the  location  and  operation  of  such  lines 
to  reasonable  regulations,  and  as  so  modi- 
fied affirmed. 

See  same  case  below,  206  Fed.  926. 

The  facts  are  stated  in  the  opinion. 

Mr.  Romney  Spring  submitted  the  cause 
for  appellant.  Messrs.  William  G.  Thomp- 
son and  George  £.  Mears  were  on  the  brief: 

The  telegraph  company  had  acquired  no 
right  to  occupy  the  streets  by  lapse  of  time 
or  by  the  acquiescence  of  any  officials. 

R^.  V.  United  Kingdom  Electric  Teleg. 
Co.  9  Cox,  C.  C.  174,  3  Fost.  &  F.  73,  2 
Best.  &  S.  647,  31  L.  J.  Mag.  Cas.  N.  6. 
166,  8  Jur.  N.  S.  1153,  6  L.  T.  N.  S.  378, 
10  Week.  Kep.  538,  12  Eng.  Rul.  Cas.  562; 
3  Dill.  Mun.  Corp.  5th  ed.  §  1220,  and  cases 
cited;  Com.  ▼.  King,  13  Met.  115;  Com. 
V.  Upton,  6  Gray,  473 ;  Young  v.  Yarmouth, 
9  Gray,  386;  Morton  v.  Moore,  15  Gray, 
576;  Com.  v.  Boston,  97  Mass.  555;  Banks 
V.  Highland  Street  R.  Co.  136  Mass.  485; 
New  Salem  v.  Eagle  Mill.  Co.  138  Mass.  8; 
Hynes  v.  Brewer,  194  Mass.  435,  9  L.R.A. 
(N.S.)  598,  80  N.  E.  503. 

The  act  of  Congress  of  July  24,  1866, 
confers  no  positive  right  upon  any  tele- 
graph company  which  has  complied  with 
its  provisions  to  occupy  public  highways 
in  a  state  without  first  obtaining  the  per- 
mission of  the  state  as  the  owner  of  the 
soil,  or  of  the  public  easement  therein, 
whether  the  consent  of  the  state  or  of  tlie 
subordinate  tribunal  to  which  the  state  has 
delegated  its  power  is  unreasonably  with- 
held or  not. 

Pensacola  Teleg.  Co.  v.  Western  U.  Teleg. 
Co.  96  U.  S.  1,  24  L.  ed.  708;  Western  U. 
Tel^.  Co.  V.  Atty.  Gen.  125  U.  S.  530,  31 
L.  ed.  790,  8  Sup.  Ct.  Rep.  961;  St.  Louis 
V.  Western  U.  Teleg.  Co.  148  U.  S.  92.  100, 
101,  37  L.  ed'.  380,  383,  384,  13  Sup.  Ct. 
Rep.  485;  St.  Louis  v.  Western  U.  Teleg. 
Co.  149  U.  8.  465,  471,  37  L.  ed.  810,  814, 
13  Sup.  Ct.  Rep.  990;  PosUI  Teleg.  Cable 
Co.  V.  Baltimore,  156  U.  S.  210,  30  L.  ed. 
399,    15    Sup.   Ct.    Rep.    356;    Western    U. 


6.  158;  Ratterman  ▼.  Western  U.  Teleg. 
Co.  32  L.  ed.  U.  S.  229;  Harmon  v.  Chicago, 
37  L.  ed.  U.  S.  216;  and  Cleveland,  C.  C. 
ft  St.  L.  R.  Co.  V.  Backus,  38  L.  ed.  U.  6. 
1041. 

On  right  of  telegraph  and  telephone  com- 
panies to  use  streets — see  note  to  St.  Louis 
V.  Western  U.  Teleg.  Co.  37  L.  ed.  U.  6. 
810. 

As  to  injunction  to  restrain  acts  of  pub- 
lic officers — see  note  to  Mississippi  v.  John- 
son, 18  L.  ed.  U.  S.  437. 
S02 


On  exclusion  of  forei^  express  company 
as  an  interference  with  interstate  commerce 
— see  note  to  Kindel  v.  Beck  k  P.  Litho- 
graphing Co.  24  L.RJL  312. 

On  state  law  affecting  telegraphs  as  regu- 
lation of  interstate  commerce — see  note  to 
Western  U.  Teleg.  Co.  v.  Commercial  MilL 
Co.  36  L.R.A.(N.S.)   220. 

As  to  right  to  place  overhead  wires  in 
hiffhway  without  grant  or  permission  from 

Sublic  authority — see  note  to  State  ex  reL 
tartlett  v.  Weber,  43   L.RJ^.(N.S.)    1033. 

289  U.  S. 


1915. 


ESSEX  T.  NEW  ENGLAND  TELBQ.  00. 


Tel^.  Co.  ▼.  Pennsylvania  R.  Co.  195  U. 
8.  640,  49  L.  ed.  312,  25  Sup.  Ct.  Rep. 
133,  1  Ann.  Caa.  517;  Western  U.  Teleg. 
Co.  ▼.  Ann  Arbor  R.  Co.  178  U.  S.  230, 
44  L.  ed.  1052,  20  Sup.  Ct.  Rep.  867; 
Western  U.  Teleg.  Co.  t.  Richmond,  224 
U.  &  160,  167-169,  CtO  L-  ed.  710,  715, 
716,  32  Sup.  Ct.  Rep.  449;  Banks  v.  High- 
land Street  R.  Co.  136  Mass.  485;  PosUl 
Teleg.  Cable  Co.  ▼.  Qiicopee,  207  Mass.  343, 
32  L.K.A.(N.S.)  997,  93  N.  E.  927;  Pos- 
tal Teleg.  Cable  Co.  ▼.  Newport,  25  Ky. 
L.  Rep.  635,  76  S.  W.  159;  American  Rapid 
Tdeg.  Co.  ▼.  Hess,  125  N.  Y.  641,  13 
ULA.  454,  21  Am.  St.  Rep.  764,  26  N.  E. 
919;  Toledo  ▼.  Western  U.  Teleg.  Co.  52 
L.R.A.  730,  46  C.  C.  A.  Ill,  107  Fed.  12; 
Pomona  v.  Sunset  Teleph.  ft  Teleg.  Co. 
224  U.  8.  830,  56  L.  ed.  788,  32  Sup.  Ct 
Rep.  477. 

The  cases  in  which  the  effect  of  this 
statute,  or  of  the  interstate  commerce  clause 
of  the  Constitution,  upon  the  right  of  the 
state  to  impose  upon  telegraph  companies 
a  license  fee  or  tax  as  a  condition  of  grant- 
ing to  them  the  privilege  of  doing  business 
within  the  state,  has  been  oonsidered,  are 
not  in  point.  The  case  at  bar  does  not 
involve  in  any  way  the  question  whether 
a  state  can  require  a  party,  whether  a 
telegraph  company  or  anybody  else,  to  take 


Richmond  ▼.  Southern  Bell  Teleph.  & 
Teleg.  Co.  174  U.  S.  761,  763,  43  L.  ed. 
1162,  1163,  19  Sup.  Ct.  Rep.  778;  St.  Louis 
y.  Western  U.  Teleg.  Co.  148  U.  S.  92,  100, 
37  L.  ed.  380,  383,  13  Sup.  Ct.  Rep.  485; 
W^tern  U.  Teleg.  Co.  v.  Pennsylvania  R. 
Co.  195  U.  S.  540,  559,  49  L.  ed.  312,  318, 
25  Sup.  Ct.  Rep.  133,  1  Ann.  Cas.  517; 
Western  U.  Teleg.  Co.  ▼.  Richmond,  224 
U.  S.  160,  165,  56  L.  ed.  710,  714,  32  Sup. 
Ct.  Rep.  449,  178  Fed.  312;  Ex  parte  Con- 
way, 48  Fed.  77;  Re  Matthews,  122  Fed. 
258;  Newcastle  ▼.  Postal  Teleg.  Cable  Co. 
152  Fed.  572;  Mackay  Teleg.  &  Q^ble  Co.  v. 
Texarkana,  199  Fed.  348. 

From  public  streets  and  highways  which 
are  post  roads,  and  which  are  not  owned  by 
a  state,  or  municipality  therein,  but  in 
which  the  fee  is  owned  by  abutters,  subject 
to  a  public  easement,  including  the  occu- 
pation of  said  streets  and  highways  by  a 
telegraph  line,  a  telegraph  company  which 
has  accepted  the  provisions  and  obligations 
of  the  act  of  July  24,  1886,  and  whose 
line  does  not  interfere  with  ordinary  travel 
on  such  streets  and  highways,  cannot  be 
absolutely  excluded  by  any  state  or  munic- 
ipality, and  in  said  streets  and  highways 
such  a  company  has,  under  said  act  of 
Congress,  a  right  to  construct  and  main- 
tain its  line  of  telegraph,  subject,  of  course. 


out  a  license  for  the  privilege  of  carrying  r*^  proper  state  and  municipal  regulation 


on  interstate  oommerce,  or  whether  a  state 
can  tax  the  property  of  a  corporation  not 
situated  within  the  state.  Cases  turning 
upon  this  sort  of  question  are: 

Western  U.  Teleg.  Co.  t.  Texas,  105  U.  S. 
460,  26  L.  ed.  1067;  Western  U.  Teleg.  Co. 
V.  Pendleton,  122  U.  8.  347,  80  Lw  ed.  1187, 
1  Inters.  Com.  Rep.  306,  7  Sup.  Ct.  Rep. 
1126;  Leloup  v.  Mobile,  127  U.  S.  640,  32 
L.  ed.  311,  2  Inters.  Com.  Rep.  134,  8 
Sup.  Ct.  Rep.  1380;  PosUl  Teleg.  Cable 
Co.  T.  Adams,  155  U.  8.  688,  39  L.  ed. 
311,  6  Inters.  Com.  Rep.  1,  15  Sup.  Ct. 
Rep.  268,  3C0;  Western  U.  Teleg.  Co.  ▼. 
Taggart,  163  U.  8.  1,  41  L.  ed.  49,  16  Sup. 
Ct  Rep.  1054;  Western  U.  Teleg.  Co.  ▼. 
New  Hope^  187  U.  8.  419,  47  L.  ed.  240, 
23  Sup.  Ct.  Rep.  204;  Atlantic  &  P.  Teleg. 
Co.  V.  Philadelphia,  190  U.  8.  160,  47  L. 
ed.  995,  23  Sup.  Ct.  Rep.  817;  Western  U. 
Teleg.  Co.  v.  Missouri,  190  U.  8.  412,  47 
L.  ed.  1116,  23  Sup.  Ct  Rep.  730;  Western 
U.  Teleg.  Co.  ▼.  Kansas,  216  U.  8.  1,  54  L. 
ed.  355,  30  Sup.  Ct.  Rep.  190;  Williams 
V.  Talladega,  226  U.  8.  404,  57  L.  ed.  275, 
33  Sup.  Ct.  Rep.  116. 

Mr.  G.  Philip  Wardner  argued  the 
cause  and  filed  a  brief  for  appellee: 

The   streets   upon   which    the   appellee's 
line  of  telegraph  is  maintained  are  post 
roads. 
•0  li.  ed. 


and   supervision. 

Pensacola  Teleg.  Co.  t.  Western  U.  Teleg. 
Co.  96  U.  a  1,  24  L.  ed.  708;  Western 
U.  Teleg.  Co.  ▼.  Texas,  105  U.  8.  460,  26 
L.  ed.  1067;  Western  U.  Teleg.  Co.  v.  Pendle- 
ton, 122  U.  S.  347,  30  L.  ed.  1187,  1 
Inters.  Com.  Rep.  306,  7  Sup.  Ct.  Rep.  1126; 
Ratterman  ▼.  Western  U.  Teleg.  Co.  127 
U.  8.  411,  32  L.  ed.  229,  2  Inters.  Com. 
Rep.  59,  8  Sup.  Ct.  Rep.  1127;  Western  U. 
Tel^.  Co.  V.  Alabama  Bd.  of  Assessment 
(Western  U.  Teleg.  Co.  v.  Seay)  132  U. 
8.  472,  33  L.  ed.  409,  2  Inters.  Com.  Rep. 
726,  10  Sup.  Ct.  Rep.  161;  Western  U. 
Teleg.  Co.  v.  James,  162  U.  8.  650,  40  L. 
ed.  1105,  16  Sup.  Ct  Rep.  934;  Western 
U.  Teleg.  Co.  ▼.  Atty.  Gen.  125  U.  8.  530, 
31  L.  ed.  790,  8  Sup.  Ct  Rep.  961;  Pem- 
bina ConsoL  Silver  Min.  k  Mill.  Co.  v. 
Pennsylvania,  125  U.  8.  181,  31  L.  ed. 
650,  2  Inters.  Com.  Rep.  24,  8  Sup.  Ct.  Rep. 
737;  Western  U.  Teleg.  Co.  v.  Pennsylvania 
R.  Co.  195  U.  8.  540,  49  L.  ed.  312,  25  Sup. 
Ct.  Rep.  133,  1  Ann.  Cas.  517;  Leloup  v. 
Mobile,  127  U.  8.  640,  32  L.  ed.  311,  2 
Inters.  Com.  Rep.  134,  8  Sup.  Ct  Rep.  1380; 
St  Louis  V.  Western  U.  Teleg.  Co.  39  Fed. 
59,  148  U.  8.  92,  37  L.  ed.  380,  13  Sup.  Ct. 
Rep.  485,  149  U.  8.  465,  37  L.  ed.  810,  13 
Sup.  Ct.  R^.  990;  St  Louis  ▼.  Western  U. 
Tekg.  Co.  68  Fed.  68;  Postal  Teleg.  Cable 

SO*" 


91«,  SIT                   BUI>K£ME  COUBT  OF  THE  UMITBD  aTATES.  Oat.  Tku(, 

Co.  T.  CharlMton,  1S3  U.  S.  692,  3S  L.  ed.  STI,   189   Fad.   Ij    Cook,  Corp.  Tth  od.  pp. 

871,  4  latori.  Com.  E«p.  637,  14  Sup.  Ct.  3880,  3886. 
R«p.  1094  i  Pofltal  Teleg.  Cable  Co.  T.  Ad^roi, 

105  U.  8.  eSB,  096,   39  L.  ed.  311,  310,    E  Mr.   Jiutiec    HcReynoUB  dellTered    tha 

Inters.  Com.  Bep.  1,  16  Sup.  Ct.  Rep.  S6S,  opinion  of  the  court: 

360;  United  Sttttet  t.  Union  P.  R.  Co.  160  Appciiut  wm  enjoined  hj  the  daera« 
U.  8.  .t,  40  L.  ed.  319,  16  Sup.  Ct  Rep.  below  from  interfering  with  the  operation 
ISO;  Sonthem  Bell  Teteph.  i.  Tcleg.  Co.  v.  ot  linei  owned  b^  the  appellea  eompwij. 
Richmond,  76  Fed.  858,  28  C.  C.  A.  669,  The  controTertf  aroae  uudar  the  Mt  of  Con- 
42  U.  8.  App.  686,  85  Fed.  19,  174  U.  8.  grew  approved  Jnlj  24,  1866  (14  SUt.  kt 
761,  43  L.  ed.  1162,  19  Sup.  Ct.  Rep.  778;  L.  221,  chap.  230,  Rev.  BUt.  ||  6283  et 
Western  U.  Teleg.  Co.  t.  Ann  Arbor  R.  Co.  aeq.  Comp.  6Ut.  1913,  |  10,072),  which 
178  U.  B.  239,  44  L.  ed.  1062,  20  Sup.  Ct.  declarea  that  eompaniea  accepting  it*  pro- 
Rep.  887;  Western  U.  Te1i!g.  Co.  t.  Missouri,  Tisioos  "shall  have  the  right  to  eonatruct, 
190  U.  B.  412,  47  L.  ed.  1116,  S3  Sup.  Ct.  maintain,  and   operate   linea  of   telegrapli 

Rep.   730;    Western  U.  Teleg.  Co.  t.  Rich *'«  wd  »long  ■■>;  of  tha  mlli- 

moDd,  178  Fed.  310.  224  U.  8.  180,  96  L.  tary  or  poet  roads  of  the  United  BUt«," 

ed.  710,  32  Sup.  Ct.  Rep.  44B;   Western  U.  provided  they  do  not  interfere  with  ordinary 

Tel^.  Co.  V.  New  Hope,  187  U.  S.  419,  47  travel.    Appellant  Insists  that,  aa  oonatroMl 

L.  ed.  240,  23  Sup.  Ct.  Rep.  204;   Atlantic  ai"!  H>plied  below,  the  statute  tranaoenda 

Je  p.  Teleg.  Co.  v.  Philadelphia,  190  V.  B.  t>>"  powers  grsnted  to  Congresa  by  the  Qwi- 

160,  47  L.  ed.  095,  23  Sup.  Ct.  Rep.  817;  stitutlon;    and  there  ia  auffieioit  aabatanea 

PosUl  Teleg.  Cable  Co.  v.  New  Hope,  192  •"  «»  cl»™  to  give  na  juriadictioa. 

U.  B.  55,  48  L.  ed.  338,  24  Sup.  CL  Rep.  Th"  »PP«llee  "m  incorporated  under  th* 

204;  Poatel  Teleg.  Cable  Co.  v.  Taylor,  192  ••'■  "'  Massachusetts,  April  7,  1884.     Im- 

O.  8.  64,  48  L.  ed.  342,  24  Sup.  Ct   E«p.  mediately  thereafter  it  flied  with  the  Po«t- 

208;  Philadelphia  t.  Western  U.  Teleg.  Co.  "^^  General  a  written  aceeptuios  of  tha 

40  Fed.  616,  81  Fed.  948.  82  Fed.  797,  32  restrictions  and    obllgstiona    prescribed    by 

C.  C.  A.  246.  60  V.  8.  App.  398,  89  Fed.  «»•  «*  ot  July  24,  1866,  and  oonatraetM 

464;    PhiUdelphia   v.  Atlantic  &  P.  Teleg.  ''""■  <»'  "'«■  •*'""«  "P""  !•'••  *«™*  *•" 

Co.  48  C.  C.  A.  325,  102  Fed.  254   109  Fed  commonwealth   of  Maisaohuaetta  and  pw 

T.    Cumberland    Teleph.    i  ticutariy  along  certain  streete  and  loada  fat 


the  town  ot  Essex.     Theae  have  heen  c 


Nashville    v.    Cumberland    Teleph. 

Tcl(«.  Co.  76  C.  C.  A.  297,  146  Fed.  607;  ,  , 

Memphis   T.   PosUl   Tel^.   Cable   Co.    139  tiauoiitAj  operated    in   connection,   on   tha 

Fed.  707,  76  C.  C.  A.  292,   145   Fed.  602;  =«*,  with  cables  reaching  foreign  countriea. 

Western  U.  Teleg.  Co.  v.  American  U.  Teleg.  "<*.  on  the  weet,  with  wires  leading  to  all 

Co.  9  Biss.  72,  Fed.  C.s.  No.  17.444;  Wert-  P*"^  "'  *^«  """""   '"'  '  '*'f«  ^T'J^^ 

em  D.  Teleg.  Co.  v.  New  York,  3  L.R.A.  i»'«  conrtjtuted  an  important  put  of  the 

449,  2  InteM.  Com.  Rep.  633,  38  Fed.  562;  P*"*"'    Tel-^graph    k    Cable    system:     «id 

Ex  parte  Conway,  48  Frf.  77;  Postal  Teleg.  ""V  J*""?  P'"  ?LT'  "'""^'  *"    Intenrtate 

Cable  Co.  V.  Southern  R.  Co.  89  Fed.  190;  "*  '"ff«?    tSlT]    mee-ges,   many   being 

Michigan  Teleph.  Co.  v.  Charlotte,  93  Fe*;  *'"!"|"'**^,  If   ^*  ^"''^   ^^^  "*" 

11;   WichiU  V.   Old  Colony  Trust  Co.   66  "'^^^  r^Ut  o„,. 

C.  C.  A.  19,  132  Fed.  641;   Cans  y.  Ohio       T»«  «I«*'«Uy  Pe'''"*"*  P«"l«»«  «»»  «" 

PosUI  Teleg.  Cable  Co.  72  C.  C.  A.  186.  140  M'"*^"***'^  »-•  «'•  '"f  *"  ~T.f!l'- 

Fed    nfl2-    MacbaT  T»l«r    A  PjibU  pJ,    .  incorporated   for   transmitting   faiteUigenee 

?^rS^L  "b9    Fel    M7      Posts'   ^elel'  "^  "'^t^'^"?.  ^  '<"^«  '^"''"K  "84  and  long 

ieiariam*,    i™    "^"i-    '5L'    ™"'  ,f '^«;  thereafter,  appear  in  Public  SUtute^  «4»p- 

Cable  Co.  v.  Chtcopee,  207   Mass.  341,  32  ,„,  ,._     '    ^rr  „    .„,  „!,.„,„  oT  ■  jo 

L.RA.(N.8.)    097,  93  N.   E.   B27;    Western  ^'."!'  "A„t  "'  *""'  °^'P**'  "'  '  *'■ 


a  follows: 

"Each  company  may  under  the  prorlai^na 

,,  'n       >         ,.«    «.  n    T.    >.»     «.  .,     "t  the  loliowing  section  construct  lines  of 


D.  Teleg.  Co.  v,  Superior  Ct  10  Cal.  App. 
688,  115  Pac.  1091,  IIOO;  Carver  v.  Stete, 


T^fi^/- "f '"•."?/""■ '''■'"^"-  -yV«dT«biic-^«d;:;;L-"a;y'":"^ 

1004,  17  Ann.  Cas.  718.  ^/^  withm  the  commonwealth,  by  the  ere* 

The  telegraph  line,  being  a  quasi  public  ti(,„   „(   the   poste.   piers,   abutmenU,   and 

property,  operated  to  give  Berrlce  to  the  jther   Bxturee    (except   bridges)    neeeasai? 

public  and  to  the  United  SUtes,  under  the  to  sustain  the  wires  of  ite  lines;  but  shall 

poat-road    act    of    Congreaa,    will    not    be  not  incommode  the  public  use  of  highway* 

treated   the  same  as  a  prlrste  trespasser,  or  public  roads,  nor  endanger  or  intermpt 

public  interests  being  Involved,  and  the  con-  the  navigation  of  any  waters." 

tinuity  of  telegraph  service  for  the  public  "The  mayor  and  aldermen  or  s«4ectmeB 

being  necessary.  if  a  place  through  which  the  linea  of  a  cotn* 

Union  P.  R.  Co.  T.  Greeley,  110  C.  C.  A.  pany  are  to  pass  sliall  give  the  company  a 

'M  181  U.  S. 


1915. 


K88EX  ▼.  NEW  ENGLAND  TELEG.  CO. 


817-320 


writing  specifTing  where  the  poets  may  be 
located,  the  kind  of  poeta»  and  the  height  at 
which,  and  the  placet  where,  the  wires  may 
nm.  After  the  erection  of  the  lines,  having 
first  given  the  company  or  its  agents  op- 
portunity to  be  heard,  they  may  direct  any 
alteration  in  the  location  or  erection  of 
the  posts,  piers,  or  abutments,  and  in  the 
height  of  the  wires.  Such  specifications 
and  decisions  shall  be  recorded  in  the  rec- 
ords of  the  city  or  town." 

"No  enjoyment  by  a  person  or  corpora- 
^n  for  any  length  of  time  of  the  privi- 
lege of  having  or  maintaining  telegraph 
posts,  wires,  or  apparatus  in,  upon,  over  or 
attadied  to  any  building  or  land  of  other 
persons,  shall  give  a  legal  right  to- the  soo- 
tinued  enjoyment  of  such  easement  or  raise 
any  presumption  of  a  grant  thereof." 

**The  selectmen  of  a  town  may  empowelr 
citizens  of  Massachusetts  to  establish  and 
maintain,  in  such  town,  posts,  wires  and 
other  apparatus  for  telegraphic  and  tele- 
phonic [318]  communication,  in  conformity 
with  the  provisions  of  chapter  100.^' 

In  Pierce  v.  Drew,  136  Mass.  76,  76,  77, 
49  Am.  Rep.  7  (1883),  the  supreme  court 
said  of  chapter  109: 

"That  it  was  the  intent  of  the  sUtute 
to  grant  to  those  corporations,  formed  un- 
der the  general  incorporation  laws,  for  the 
purpose  of  transmitting  intelligence  by 
electricity,  the  right  to  construct  lines  of 
telegraph  upon  and  along  highways  and 
public  roads  upon  the  locations  assigned  to 
them  by  the  officers  of  the  municipality 
wherein  such  ways  are  situate,  cannot  be 
doubted.     .     •     • 

"No  right  is  given  these  companies  to 
use  the  highways  at  their  own  pleasure,  or 
to  compel  in  all  cases,  as  the  plaintiff  sug- 
gests, locations  therein  to  be  given  them 
by  the  municipal  authorities.  The  second 
section  of  the  statute  is  to  be  construed 
with  the  third  section,  and  shows  an  inten- 
ti<m  that  a  legally  constituted  board  shall 
determine  not  only  where,  but  whether, 
there  can  be  a  location  which  shall  not  in- 
commode the  ordinary  public  ways,  with 
full  power  to  revise  its  own  doings,  and 
to  correct  any  errors  which  the  practical 
working  of  the  arrangements  may  reveal." 

The  evidence  warrants  the  conclusion  that 
in  1884  appellee  made  written  application 
to  the  Essex  selectmen  for  a  right  of  way, 
but  their  records  disclose  nothing  concern- 
ing the  matter.  Directly  thereafter,  with- 
out opposition,  the  existing  lines  were 
constructed  along  4  miles  of  the  town's  high- 
ways. During  many  succeeding  years  no 
objection  appears  to  have  been  made  US 
their  operation,  and,  until  a  short  time 
before  this  suit  was  begun,  their  presence 
was  acquiesced  in.  Certainly  no  sort  of 
•0  li.  ed. 


aiBrmatlTo  action  was  taken  to  interfere 
with  them;  and  there  is  evidence  indicating 
that  half  the  poles  were  relocated  under 
direction  of  a  selectman,  about  1895,  when 
the  electric  railway  was  laid  down. 

In  1902,  repairs  being  needed,  the  select- 
men were  petitioned  [319]  to  locate  the 
poles  and  license  their  future  maintenance. 
This  request  was  not  granted.  In  1905,  re- 
pairs having  become  imperative  another 
petition  for  a  location  was  presented.  This 
was  refused;  officers  of  the  town  then  de- 
nied appellee's  right  to  use  the  highways, 
and  threatened  to  prevent  repairs,  by  force 
if  necessary,  and  to  take  action  against  fu- 
ture operation  of  the  lines  within  its  limits. 
Thereupon,  July  31,  1905  (twenty-one 
years  after  original  constructicm),  the  tele- 
graph company,  relying  on  the  act  of  1860, 
commenced  this  proceeding  in  the  district 
court,  seeking  an  injunction  against  threat- 
ened interference.  By  a  temporary  order 
granted  September  5,  1905,  the  town,  its 
officers,  agents,  and  employees,  were  "en- 
joined and  restrained,  until  the  further  or- 
der of  this  court,  from  interfering  in  any 
manner  whatsoever  with  the  complainant's 
line  of  telegraph  in  said  defendant  town,  or 
with  the  location  or  relocation  by  the  com- 
plainant on  the  roads  and  highways  now 
occupied  by  its  said  line  of  telegraph  in 
said  defendant  town,  or  with  the  resetting 
of  the  poles  of  said  line  in  said  town  by 
the  complainant,  or  with  the  complainant's 
making  such  repairs  and  changes  as  are 
necessary  to  put  said  line  in  a  condition 
of  safety  and  efficiency,  or  from  in  any  man- 
ner causing  or  allowing  any  other  person 
or  corporation  to  interfere  with  or  stop 
such  location,  relocation,  resetting,  repairs, 
or  changes  by  the  complainant." 

Answering,  September  26,  1905,  appellant 
claimed  the  lines  were  constructed  without 
any  authority  whatsoever,  and  denied  tlie 
company's  right,  under  the  act  of  18G6  or 
otherwise,  to  maintain  or  operate  them.  A 
cross  bill  was  also  presented,  alleging  un- 
lawful use  of  the  ways,  and  praying  that 
the  company  be  restrained  therefrom  until 
a  franchise  shall  be  obtained  as  provided 
by  state  laws. 

No  motion  was  ever  made  to  dissolve  the 
temporary  injunction.  The  cause  coming 
on  for  final  hearing  upon  pleadings  and 
proofs  in  1013  (twenty-nine  years  subse- 
quent [320]  to  construction),  the  court 
held  that  the  act  of  1866  protected  the  lines 
from  interference,  and  rendered  a  decree  dis- 
missing the  cross  bill,  sustaining  the  orig- 
inal bill,  and  awarding  a  perpetual  injunc- 
tion substantially  in  the  language  of  the 
preliminary  order  dated  September  5,  1905. 

Appellant  now  maintains  that  the  court 

below   erroneously   construed   and  applied 

20  soft 


-320-322 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebu, 


the  act  of  1866,  and  undertook  to  bestow 
upon  the  telegraph  company  rights  in  its 
highways  beyond  the  power  of  Congress  to 
grant;  that  its  ways  are  occupied  without 
lawful  authority,  either  state  or  Federal; 
that  such  occupation  constitutes  a  continu- 
ing nuisance;  and  that  the  original  bill 
should  have  been  dismissed,  leaving  the 
town  free  to  act  as  seemed  advisable. 

Many  opinions  of  this  court  establish  be- 
yond question  the  validity  and  point  out 
the  general  purposes  of  the  act  of  1866. 
*'It  substantially  declares,  in  the  interest 
of  commerce  and  the  convenient  transmis- 
sion of  intelligence  from  place  to  place  by 
the  government  of  the  United  States  and  its 
citizens,  that  the  erection  of  telegraph 
lines  shall,  so  far  as  state  interference  is 
concerned,  be  free  to  all  who  will  submit 
to  the  conditions  imposed."  Pensacola 
Teleg.  Co.  v.  Western  U.  Teleg.  Co.  96  U. 
S.  1,  11,  24  L.  ed.  708,  711.  A  sUte  has 
no  authority  to  say  that  a  telegraph  com- 
pany may  not  operate  lines  constructed 
over  postal  routes  within  its  borders 
Western  U.  Teleg.  Co.  v.  Atty.  Gen.  126  U. 
S.  530,  554,  31  L.  ed.  790,  795,  8  Sup.  Ct. 
Rep.  961.  A  city  may  not  arbitrarily  ex- 
clude the  wires  and  poles  of  a  telegraph 
company  from  its  streets,  but  may  impose 
reasonable  restrictions  and  regulations.  St. 
Louis  T.  Western  U.  Teleg.  Co.  148  U.  8. 
92,  105,  37  L.  ed.  380,  385,  13  Sup.  Ct.  Rep. 
485;  Western  U.  Teleg.  Co.  v.  Richmond, 
224  U.  S.  160,  170,  56  L.  ed.  710,  716,  32 
Sup.  Ct.  Rep.  449.  See  also  Western  U. 
Teleg.  Co.  v.  Pennsylvania  R.  Co.  196  U. 
S.  640,  49  L.  ed.  312,  25  Sup.  Ct.  Rep.  133, 
1  Ann.  Cas.  617;  United  States  v.  Union  P. 
R.  Co.  160  U.  S.  1,  44,  40  L.  ed.  319,  334, 
16  Sup.  Ct.  Rep.  190;  Postal  Teleg.  Cable 
Co.  V.  Chicopee,  207  Mass.  341,  343,  32 
L.R.A.(N.8.)  997,  93  N.  E.  927. 

If  the  official  records  of  the  selectmen 
disclosed  that,  [321]  responding  to  the  pe- 
tition of  1884,  they  gave  a  writing  "specify- 
ing where  the  posts  may  be  located,  the  kind 
of  posts,  and  the  height  at  which  and  the 
places  where  the  wires  may  run,"  and  if 
thereafter  the  telegraph  company  had 
placed  poles  and  strung  wires  accordingly, 
plainly,  we  think,  under  the  opinions  cited 
above,  such  lines  would  be  protected  by  the 
act  of  1866  against  exclusion  or  other  arbi- 
trary action  by  the  town. 

With  full  knowledge  of  all  circumstances, 
the  town  authorities  permitted  the  location 
and  construction  of  lines  along  the  high- 
ways, and  for  more  than  twenty  years  ac- 
quiesced in  their  maintenance  and  opera- 
tion. The  company  has  expended  large 
sums  of  money  and  perfected  a  great  in- 
strumentality of  interstate  and  foreign 
commerce,   in  the  continued  operation  of 


which  both  the  general  public  and  the  goT- 
emment  have  an  important  interest.  Un- 
der similar  circumstances  it  has  been  de- 
termined, upon  broad  principles  of  equity, 
that  an  owner  of  land,  occupied  by  a  raU- 
road  without  his  previous  consent,  will  be 
regarded  as  having  acquiesced  therein  and 
be  estopped  from  maintaining  either  tres- 
pass or  ejectment  (Roberts  v.  Northern  P. 
E.  Co.  158  U.  S.  1,  11,  39  L.  ed.  873,  877, 
16  Sup.  Ct.  Rep.  766;  Northern  P.  R.  Co.  v. 
Smith,  171  U.  S.  260,  271,  275,  43  L.  ed. 
157,  161,  163,  18  Sup.  Ct.  Rep.  794);  and 
like  reasons  may  demand  similar  protection 
to  the  possession  of  a  telegraph  company. 
A  municipal  corporation,  under  exceptional 
circumstances,  may  be  held  to  have  waived 
its  rights  or  to  have  estopped  itself.  Ran- 
dolph County  V.  Post,  93  U.  S.  602,  613, 
23  L.  ed.  957,  959;  Boone  County  v.  Bur- 
lington &  M.  River  R.  Co.  13U  U.  S.  684, 
693,  35  L.  ed.  319,  322,  11  Sup.  Ct.  Rep. 
687;  City  R.  Co.  v.  Citizens'  Street  K.  Co. 
166  U.  S.  657,  566,  41  L.  ed.  1114,  1117,  17 
Sup.  Ct.  Rep.  653;  Louisville  v.  Cumber- 
land Teleph.  &  Teleg.  Co.  224  U.  e.  649,  662, 
56  L.  ed.  934,  940,  32  Sup.  Ct.  Rep.  672; 
Dill.  Mun.  Corp.  6th  ed.  §§  1194,  1227. 

The  streets  and  highways  of  Essex  are 
undoubtedly  post  roads  within  the  meaning 
of  the  act  of  1866.  Western  U.  Teleg.  Co. 
V.  Richmond,  224  U.  S.  160,  170,  56  L.  ed. 
710,  716,  32  Sup.  Ct.  Rep.  449,  act  of  March 
1,  1884,  chap.  9,  23  Stat,  at  L.  3,  Comp. 
Stat.  1913,  §  7467.  What  rights— if  any— 
in  respect  of  them  [322]  were  immediately 
secured  by  the  telegraph  company  through 
acceptance  of  that  act,  we  need  not  consider. 
It  entered  upon  those  now  occupied  notori- 
ously, peacefully,  and  without  objection,  and 
has  developed  there  a  necessary  means  of 
communication.  The  statute  must  be  con- 
strued and  applied  in  recognition  of  exist- 
ing conditions  and  with  a  view  to  effectuate 
the  purposes  for  which  it  was  enacted. 
Among  the  latter,  as  stated  in  Pensacola 
Teleg.  Co.  v.  Western  U.  Teleg.  Co.  and 
Western  U.  Teleg.  Co.  v.  Atty.  Gen.  supra, 
are  the  extension  and  protection  of  instru- 
mentalities essential  to  commercial  inter- 
course and  the  efficient  conduct  of  govern- 
mental affairs.  In  the  circumstances, 
appellee  has  acquired  the  same  Federal  right 
to  maintain  and  operate  its  poles  and  wirea 
along  the  ways  in  question  that  would  have 
attached  had  the  selectmen  granted  a  formal 
antecedent  permit.  Commercial  transac- 
tions and  the  orderly  conduct  of  govern- 
mental business  have  come  to  depend  on  the 
daily  use  of  these  lines,  and  certainly  would 
be  as  seriously  hindered  by  their  severance 
as  if  they  had  been  constructed  after  an  of- 

2S9  U.  S. 


1915. 


PROVO  BENCH  CANAL  k   I.  00.  v.  TANNER, 


822-324 


lldml  location^  There  it  no  Buggestion  that 
ordinary  travel  ia  being  interfered  with; 
and,  having  long  acquiesced  in  appellee's 
peaceful  possession,  the  town  may  not  now 
rely  upon  the  claim  that  this  was  obtained 
without  compliance  with  prescribed  regula- 
tions, and  treat  the  company  as  a  naked 
trespasser.  Its  rights  under  the  Federal 
law  would  be  violated  by  the  threatened 
arbitrary  interference. 

The  further  claim  is  here  made  for  the 
first  time  that,  in  any  event,  the  injunction 
is  too  broad.  In  Western  U.  Teleg.  Co.  v. 
Richmond,  supra,  it  was  pointed  out  that 
the  act  of  1866  does  not  deprive  a  munici- 
pality of  the  right  to  subject  telegraph  com- 
panies occupying  its  streets  to  reasonable 
regulations.  The  injunction  as  granted 
might  interfere  with  action  altogether  prop- 
er, and  the  decree  below  will  be  modified  by 
the  addition  of  the  words,  [323]  "Provided, 
that  nothing  herein  shall  be  so  construed  as 
to  prevent  the  board  of  selectmen  or  the 
town  of  Essex  from  subjecting  the  location 
and  operation  of  the  company's  lines  to  rea- 
sonable regulations."  With  this  modifica- 
tion, it  is  affirmed.  The  costs  will  be 
charged   to   appellant. 

Modified  and  affirmed. 


PROVO  BENCH  CANAL  &  IRRIGATION 
COMPANY  and  the  North  Union  Irriga- 
tion Company,  Plffs.  in  Err., 

V. 

CALEB  TANNER. 
(See  S.  0.  Reporter's  ed.  323-325.) 

Error  to  state  oonrt  ^  scope  of  review 
—  findings  of  fact. 

The  contention  that  property  was 
taken  without  due  process  of  law  by  an 
award  of  nominal  damages  only  in  the  pro- 
ceedings by  which  a  landowner,  under  UtiUi 
Comp.  Laws  1907,  §  1288x22,  secured  the 
right  to  enlarge  irrigation  canals  already 
constructed  by  others,  presents  no  question 
which  the  Federal  Supreme  Court  may  con- 
sider on  writ  of  error  to  a  state  court, 
where  the  latter  court,  although  expressly 
recognizing  the  right  of  recovery  for  any 
substantial  damage,  found  as  a  matter  of 
fact  that  none  had  been  shown  by  the  proof, 
and  that  consequently  only  a  nominal  sum 
could  be  recovered. 

[For  other  cnses,  see  Appeal  and  Error,  2175- 
2208,  in  Digest  Sup.  Ct.  1008.] 

[No.  72.] 

Argued  and  submitted  November  11,  1015. 
Decided  December  6,  1015. 

Note. — ^As  to  review  of  questions  of  fact 
OB  writ  of  error  to  a  state  court — see  Smiley 
V.  Kansas,  49  L.  ed.  U.  6.  546. 
•0  L.  ed. 


IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Utah  to  review  a  judgment 
which  affirmed  a  judgment  of  the  District 
Court  for  the  Fourth  Judicial  District-  of 
that  state,  awarding  nominal  damages  only 
in  a  proceeding  by  a  landowner  to  obtain 
permission  to  enlarge  irrigation  canals  al- 
ready constructed  by  others.    Affirmed. 

See  same  case  below,  40  Utah,  105,  121 
Pa^.  584. 

Mr.  J.  W.  N.  Whltecotton  argued  the 
cause  and  filed  a  brief  for  plaintiffs  in  er- 
ror. 

Mr.  Charles  S.  Varlan  submitted  the 
cause  for  defendant  in  error.  Mr.  D.  D. 
Houtz  was  on  the  brief. 

Memorandum  opinion  by  Mr.  Justice  Mc- 
Reynolds,  by  direction  of  the  court: 

Plaintiffs  in  error,  having  acquired  ease- 
ments and  rights  of  way  over  certain 
lands  in  the  state  of  Utah,  constructed 
[324]  thereon  connecting  canals  to  convey 
water  intended  for  irrigation  purposes.  Re- 
lying upon  the  provisions  of  a  statute  of 
that  state  (Comp.  Laws  1007,  §  1288x22), 
copied  in  the  margin,!  the  validity  of  which 
is  not  contested  (Clark  v.  Nash,  108  U.  S. 
361,  40  L.  ed.  1085,  25  Sup.  Ct.  Rep.  676,  4 
Ann.  Cas.  1171),  defendant  in  error  Tanner 
instituted  the  original  proceeding,  praying 
for  permission  to  increase  the  carrying  ca- 
pacity of  the  canals,  that  the  character  of 
the  enlargement  and  resulting  damages  be 
determined,  and  that,  upon  payment  of  the 
sum  assessed  and  completion  of  the  enlarge- 
ment, he  be  decreed  the  right  to  flow  water 
therein.  Answers  were  filed,  proof  taken, 
and,  the  cause  having  been  duly  heard  by 
the  court  without  a  jury,  a  decree  was  en- 
tered granting  the  relief  prayed  under  care- 
fully specified  conditions,  among  them  being 
a  perpetual  bond  to  protect  against  future 
injuries.  Each  of  the  owners  was  awarded 
$1  as  damages.    Upon  appeal  the  action  of 


iWhen  any  person,  corporation,  or  asso- 
ciation desires  to  convey  water  for  irriga- 
tion or  for  aay  other  beneficial  purpose,  and 
there  is  a  canal  or  ditch  already  construct- 
ed that  can  be  enlarged  to  convev  the  re- 
quired quantity  of  water,  then  such  person, 
corporation,  or  association,  or  the  owner  or 
owners  of  the  land  through  which  a  new 
canal  or  ditch  would  have  to  be  constructed 
to  convey  the  quantity  of  water  necessary, 
shall  have  the  right  to  enlarge  said  canal 
or  ditch  already  constructed,  by  compen- 
sating the  owner  of  the  canal  or  ditch  to 
be  enlarged,  for  the  damage,  if  any,  caused 
by  said  enlargement;  provided,  uiat  said 
enlargement  shall .  be  done  at  any  time 
from  the  1st  day  of  October  to  the  1st  day 
of  March,  or  at  any  other  time  that  may 
be  agreed  upon  with  the  owner  of  said  canu 
or  ditcJu 


324,  326 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tboc, 


the  trial  court  was  approved  by  the  su- 
preme court.    40  Utah,  105,  121  Pac.  584. 

Counsel  for  plaintiffs  in  error  asserts 
here  that,  "after  all,  the  whole  question  is, 
was  there  a  taking  of  the  property  of  the 
canal  owners;"  and,  answering  this  in  the 
affirmative,  he  maintains  that  the  judgment 
below  deprives  them  thereof  without  due 
process  of  law.  But  the  state  court,  ex- 
pressly recognizing  the  right  of  recovery*  for 
[325]  any  substantial  damage,  found,  as 
matter  of  fact,  that  none  had  been  shown  by 
the  proof,  and  consequently  only  a  nominal 
sum  could  be  recovered.  It  declared  that 
"nothing  is  made  to  appear  upon  which  a 
finding  or  judgment  for  substantial  damages 
can  rest" — ^''there  is  no  direct  evidence  upon 
this  point  whatever,"  and  cited  Chicago,  B. 
ft  Q.  R.  Co.  V.  Chicago,  166  U.  S.  226,  41 
L.  ed.  079,  17  Sup.  Ct.  Rep.  581,  in  support 
of  the  award. 

The  record  discloses  no  error  which  we 
can  consider  (Waters-Pierce  Oil  Co.  v. 
Texas,  212  U.  S.  86,  07,  53  L.  ed.  417,  424, 
20  Sup.  Ct.  Rep.  220),  and  the  judgment 
is  affirmed. 


L.  LAWRENCE  WEBER,  Appt, 

V. 

FREDERICK  S.  FREED,  Deputy  Collector 
of  United  States  Customs  in  Charge  of 
the  Port  of  Newark,  N.  J. 

(See  S.  C.  Reporter's  ed.  325-330.) 

Injunction  ~  to  enforce  entry  of  prize 
fight  films  —  sufficiency  of  bill. 

The  contention  that  Congress  exceed- 
ed its  power  under  the  commerce  clause  of 
the  Federal  Constitution  by  enacting  the 
provisions  of  the  act  of  July  31,  1012  (37 
Stat,  at  L.  240,  chap.  263,  Comp.  Stat.  1013, 
§  10,416),  §  1,  making  it  unlawful  to  bring 
into  or  to  cause  to  be  brought  into  the 
United  States  from  abroad,  any  film  or 
other  pictorial  representation  of  any  prize 
fight  which  is  designed  to  be  used,  or  may 
be  used,  for  purposes  of  public  exhibition, 
is  so  obviously  devoid  of  merit  that  a  bill 
which,  on  the  ground  of  the  unconstitution- 
ality of  such  statute,  sought  to  compel  the 
collector  of  customs  to  permit  the  entry  of 

Note. — On  the  power  of  Congress  to  regu- 
late commerce — see  notes  to  State  ex  rel. 
Corwin  v.  Indiana  &  O.  Oil  &  Min.  Co.  6 
L.R.A.  570;  Bullard  v.  Northern  P.  R.  Co. 
11  L.RwA.  246;  Re  Wilson,  12  L.R.A.  624; 
Gibbons  v.  Ogden,  6  L.  ed.  U.  S.  23;  Brovnn 
▼.  Maryland,  6  L.  ed.  U.  S.  678;  Gloucester 
Ferry  Co.  v.  Pennsylvania,  20  L.  ed.  U.  S. 
158;  Ratterman  v.  Western  U.  Teleg.  Co. 
32  L.  ed.  U.  S.  220;  Harmon  v.  Chicago,  37 
L.  ed.  U.  S.  216 ;  and  Cleveland.  C.  C.  &  St. 
L.  R.  Co.  V.  Backus,  38  L.  ed.  U.  S.  1041. 
SOS 


photographic  films  of  a  foreign  prise  flght» 
states  no  cause  of  action,  and  u  properly 
dismissed  by  a  Federal  district  court. 
[For    other    cases,    see    Injnnction,    200-217: 
Commerce,  III.  b,  in  Digest  Sap.  Ct  1008.] 

[No.  644.] 

Argued  December  1,  1015.    Decided  Decem- 
ber 13,  1015. 

APPEAL  from  the  District  Court  of  the 
United  States  for  the  District  of  New 
Jersey  to  review  a  decree  dismissing  a  bill 
in  a  suit  to  compel  the  collector  of  customs 
to  permit  the  entry  into  the  United  States 
of  photographic  films  of  a  foreign  prize 
fight.  Affirmed. 
The  facts  are  stated  in  the  opinion. 

Mr.  Benjamin  F.  Spellman  argued  the 
cause,  and,  with  Mr.  Charles  A.  Towne, 
filed  a  brief  for  appellant: 

The  police  power  was  never  delegated  to 
the  general  government. 

Passenger  Cases,  7  How.  470,  12  L.  ed. 
780;  Cooley,  Const.  Lim.  574;  Keller  v. 
United  States,  213  U.  S.  144,  53  L.  ed. 
738,  20  Sup.  Ct.  Rep.  470,  16  Ann.  Cas. 
1066. 

Photographic-film  positives,  imported  by 
the  owner,  designed  to  be  used  for  purposes 
of  public  exhibition  by  him,  and  not  for 
purposes  of  traffic,  sale,  or  commerce,  are 
not  articles  of  commerce. 

Definitions  of  Commerce:  Century  Diet.; 
Standard  Diet.;  Webster's  Diet.;  Gibbons 
V.  Ogden,  0  Wheat.  1,  180,  100,  6  L.  ed. 
23,  68,  60;  Adair  v.  United  States,  208  U. 
S.  161,  177,  52  L.  ed.  436,  443,  28  Sup.  Ct. 
Rep.  277,  13  Ann.  Cas.  764;  Hannibal  &  St. 
J.  R.  Co.  V.  Husen,  05  U.  S.  465,  470,  24 
L.  ed.  527,  520;  Lottery  Case  (Champion  v. 
Ames)  188  U.  S.  321,  352,  353,  47  L.  ed. 
402,  400,  500,  23  Sup.  Ct.  Rep.  321,  13  Am. 
Crim.  Rep.  561;  Mobile  Coimty  v.  Kimball, 
102  U.  S.  601,  702,  26  L.  ed.  238,  241; 
Kidd  V.  Pearson,  128  U.  S.  1,  20,  32  L.  ed. 
346,  340,  2  Inters.  Com.  Rep.  232,  0  Sup. 
Ct.  Rep.  6;  Second  Employers'  Liability 
Cases  (Mondou  v.  New  York,  N.  H.  ft  EL 
R.  Co.)  223  U.  S.  1,  46,  56  L.  ed.  327,  344, 
38  L.R.A.(N.S.)  44,  32  Sup.  Ct.  Rep.  160, 
1  N.  C.  C.  A.  875 ;  Paul  v.  Virginia,  8  WalL 
168,  10  L.  ed.  357;  Hooper  v.  California, 
155  U.  S.  648,  30  L.  ed.  207,  5  Inters.  Com. 
Rep.  610,  15  Sup.  Ct.  Rep.  207;  New  York 
L.  Ins.  Co.  V.  Cravens,  178  U.  S.  380,  44 
L.  ed.  1116,  20  Sup.  Ct.  Rep.  062. 

The  public  exhibition  of  motion  picturea 
is  not  commerce;  and  hence  the  photo* 
graphic-film  positives  referred  to  in  this 
case,  being  designed  to  be  used  for  purposes 
of  such  exhibitions,  are  not  instrumentali- 
ties of  commerce. 

SSS  U.  8. 


WEBER  T.  FBEED. 


Pwpla  T.  Klaw,  BS  Viae.  72,  106  N.  T.  I 
Bi9p.  Ul  i  MetropoUUn  Opera  Co.  t.  Hun- ' 
■mtcin,  IBS  App.  Div.  <W1,  147  N.  Y. 
B^p.  638. 

The  ooort  dccliaed  to  hettr  AHiatuit  At- 
tanM7  Guieral  Wftiren,  who  filed  «  brlaf 
ler  appellee: 

Th«  power  of  Congren  to  regulate  eom- 
■terce  with  foreign  oationi  includei  the 
power  to  prohibit.  The  contention  of  ap- 
pellant that  this  power  la  limited  to  the 
eidiuion  from  the  United  States  of  prop- 
tftjr  Intended  for  tale  ii  clearlj  foreGloaed 
tij  tha  ileciaiona  of  thla  oonrt,  and  thia  court 
iriU  daellne  juriidiction  of  the  caie,  ai  in 
rabatance  ao  wholly  wanting  in  merit  ■■  to 
be  frlToloua  and  wholly  unaubstantial. 

Brolan  t.  United  States,  236  V.  8.  !16, 
218,  221,  6S  L.  ed.  644,  647,  649,  36  Bup. 
CL  Bop.  £86;  Bnttfleld  v.  Btranahan,  192 
n.  8.  470,  4B  L.  ed.  626,  24  Sup.  Ct  Bep. 
MS;  The  Abbj  Dodge,  223  U.  S.  160,  176, 
HL.ed.S90,  393,  32  Sup.  Ct.  Rep.  310. 

Commerce,  as  used  In  the  Conititution, 
eomprdiends  traffic,  navigation,  and  every 
9«eies  of  commercial  intercourse  or  trade. 

Interstate  Commerce  CommiBaion  v.  Brim- 
tan,  164  U.  B.  447,  470,  38  L.  ed.  1047, 
1064,  4  Intara.  Com.  Bep.  646,  14  Sup.  Ct. 
Bep.  1126;  Lottery  Case  (Champion  t. 
Ames)  IBS  U.  8.  321,  362,  47  L.  ed.  4S2, 
49S,  23  Sup.  CL  Bep.  321,  13  Am.  Crim. 
Bep.  661. 

The  commerce  clause  operates  to-day  upon 
modea  of  interstate  commerce  unlcnown  to 
the  fathers,  and  It  will  operate  with  equal 
forte  upon  any  new  modes  of  such  com- 
OBve  which  the  future  may  derelop. 

Re  Defaa,  168  U.  B.  664,  691,  89  L.  ed. 
1092,  1106,  16  Sup.  Ct  Rep.  90O. 

Films  are  aiticlaa  Buaeaptible  of  pur< 
diaae  and  sale,  and  are  commonly  bought 
and  aold.  Th^  are,  therefore,  articles  of 
trade,  and  the  subject  of  large  interstate 
transactions. 

United  SUtea  t.  Motion  Picture  Patenta 
Co.  226  Fed.  803;  Mutual  Film  Corp.  t. 
Indoatrial  Commlaalon,  836  U.  8.  830,  69 
L.  ed.  658,  36  Sup.  Ct.  Rep.  387;  Mutual 
Film  Co.  T.  Induatrlal  CommisaEon,  836 
V.  S.  248,  69  L.  ed.  661,  36  Sup.  Ct  Rep. 
393. 

The  white  slave  law,  so  far  as  it  is  dl- 
Metad  against  trauaportation  of  women 
for  nae  as  a  source  of  profit,  la  analogoua 
to  the  statute  at  bar ;  for  in  both  caaea  the 
object  of  the  transportation  Is  the  use  of 
the  thing  or  person  transported,  aa  capi- 
tal from  which  income  Is  to  t>e  derived, 
rather  than  aa  an  object  of  sale. 

Hoke  T.  United  SUtes,  887   U.  B.  308, 
67  L.  ed.  623,  43  L.R-A.(N.B.)  906,  S3  Sup. 
CL  Rep.  881,  Ann.  Caa.  1913E,  906, 
«0  !•.««. 


The  appellant  contends  that  there  eaa 
he  no  commerce  unless  there  are  two  or 
more  parties  involved, — that  commerce  can- 
not exiat  where  there  is  hut  one  party.  This 
broad  statement  ia,  of  course,  not  true 
either  in  tact  or  in  law. 

Pipe  Line  Caaea  (United  SUtes  *.  Ohio 
Oil  Co.)  234  U.  8.  648,  68  L.  ed.  1460,  34 
Bup.  Ct.  Bep.  966;  Covington  k.  C.  Bridge 
Co.  T.  Kentucky,  164  U.  8.  204,  38  L. 
ed.  968,  4  Inters.  Com.  Rep.  649,  14  Sup. 
Ct.  Rep.  1087. 

The  power  of  Congress  to  exclude  ar- 
ticles from  foreign  trade  la  plenary,  aa. 
stated  In  the  Brolan  Case;  but  even  if  not 
■0  plenary,  its  power  is  at  least  aufficlent 
to  forbid  the  introduction  of  prize-fight 
flima,  to  keep  them  out  of  the  channels  of 
commerce  on  the  ground  that,  in  the  opin- 
ion of  Congreaa,  they  ahould  be  thus  de- 
clared to  he  "illicit  articles— articles  whidi 
the  law  seeks  to  keep  out  of  eommerce 
.  .  .  articles  which  are  outlaws  of  com- 
merce," in  the  words  of  thia  court  in  Hipo- 
lite  Egg  Co.  V.  United  SUtes,  280  U.  S. 
46,  64,  67,  S8,  66  L.  ed.  364,  306,  36S,  31 
Sup.  Ct  Rep.  664. 

Even  if  Congrcai  be  not  expressly  vested 
with  a  national  police  power,  and  even  if 
Congress  eipresily  intended  to  legislate  to 
supply  deficienciea  in  the  exercise  of  policv 
power  by  certain  states,  yet  It  is  vested 
with  express  and  plenary  power  to  regulate 
commerce  with  foreign  nationa,  and  may  eo 
regulate,  without  superviBlon  of  its  im- 
pelling reasons  by  this  court.  Congreaa 
alone  is  judge  of  the  necesaity  of  excluaion. 
from  foreign  trade. 

United  SUtea  v.  Marigold,  9  How.  660, 
666,  667,  13  L.  ed.  267,  260,  201. 

While  the  eommerce  clause  empowered 
Congreaa  to  r^ulate  commerce,  not  publio- 
morals,  the  second  may,  nevertheless,  be  In- 
cidenUI  to  the  first.  It  ia  no  objection  t» 
the  validity  of  Congreiaional  legialatioir 
that  an  article  prohibited  by  Congress  in 
the  legitimate  exercise  of  its  commerce 
power  might  also  be  prohibited  by  the  atatea 
in  the  exercise  of  their  police  power. 

Hoke  T.  United  SUtes.  227  U.  S.  308, 
320.  823,  67  L.  ed.  623,  626,  627,  43  L.R.A. 
(N.S.)  900,  33  Sup.  Ct  Rep.  881,  Aon.  Caa. 
1013E,  906;  Edward  B.  Whitney,  Latest  De- 
velopment of  the  Interstate  Commerce  Pow- 
er, in  1  Mich.  L.  Rev.  p.  616  (1903). 

Hie  appellant's  contuition  that  thla  court 
can  inquire  into  the  reasons  impelling  Con- 
gress to  exclude  prise-fight  films  is  unaup- 
portable, 

Doyle  V.  ContinenUl  Ina.  Co.  94  U.  8. 
636,  641,  24  L.  ed.  148,  161;  Lottery  Caaa 
(Champion  v.  Ames)  188  U.  S.  321,  47  L. 
ed.  492,  23  Sup.  Ct.  Rep.  321,  13  Am.  Crim. 
Rep.  661)  Northern  SocuriUea  Co.  1.  U<a.\ta& 


32&-330 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Term, 


StatcB,  193  U.  S.  197,  337,  48  L.  ed.  679, 
700,  24  Sup.  Ct.  Rep.  436. 

Mr.   Chief   Justice  White  delivered  the 
opinion  of  the  court: 

The  act  of  July  31,  1912  (§  1,  chap.  263, 
37  Stat,  at  L.  240,  Comp.  Stat.  1913, 
§  10,416),  makes  it  unlawful  ''to  bring  or 
to  cause  to  be  brought  into  the  United 
States  from  abroad,  any  film  or  other  pic- 
torial representation  of  any  prize  fight  or 
encounter  of  pugilists,  under  whatever 
name,  which  is  designed  to  be  used  or  may 
be  used  for  purposes  of  public  exhibition." 
With  this  provision  in  force,  in  April,  1915, 
the  appellant  brought  to  the  port  of  entry 
of  the  city  of  Newark  in  the  state  of  New 
Jersey  photographic  films  of  a  pugilistic 
encounter  or  prize  fight  which  had  taken 
place  at  Havana,  and  demanded  of  the  dep- 
uty collector  of  customs  in  charge  the 
right  to  enter  the  films.  On  refusal  of  the 
official  to  permit  the  entry,  appellant  filed 
his  bill  of  complaint  to  enforce  the  right 
to  enter  by  a  mandatory  injunction  and  by 
other  appropriate  relief  to  accomplish  the 
purpose  in  view.  The  ground  relied  on  for 
the  relief  was  the  averment  that  the  prohi- 
bition of  the  act  of  Congress  [320]  in  ques- 
tion was  repugnant  to  the  Constitution  be- 
cause, in  enacting  the  same,  "Congress  ex- 
ceeded its  designated  powers  under  the  Con- 
stitution of  the  United  States,  and  at- 
tempted, under  the  guise  of  its  powers  under 
the  commerce  clause,  to  exercise  police  power 
expressly  reserved  in  the  states."  The  col- 
lector moved  to  dismiss  on  the  ground  that 
the  bill  stated  no  cause  of  action  because 
the  assailed  provision  of  the  act  of  Con- 
gress was  constitutional,  and  therefore  on 
the  face  of  the  bill  there  was  no  jurisdic- 
tion to  award  the  relief  sought. 

The  motion  was  sustained  and  a  decree 
of  dismissal  was  rendered,  and  it  is  this 
decree  which  it  is  sought  to  reverse  by  the 
appeal  which  is  before  us,  the  propositions 
relied  upon  to  accomplish  that  result  but 
reiterating  in  various  forms  of  statement 
the  contention  as  to  the  repugnancy  to  the 
Constitution  of  the  provision  of  the  act  of 
Congress.  But  in  view  of  the  complete 
power  of  Congress  over  foreign  commerce, 
and  its  authority  to  prohibit  the  intro- 
duction of  foreign  articles  recognized  and 
enforced  by  many  previous  decisions  of  this 
court,  the  contentions  are  so  devoid  of 
merit  as  to  cause  them  to  be  frivolous. 
Buttfield  V.  Stranahan,  192  U.  S.  470,  48 
L.  ed.  525,  24  Sup.  Ct.  Rep.  349;  The  Abby 
Dodge,  223  U.  S.  166,  176,  56  L.  ed.  390, 
393,  32  Sup.  Ct.  Rep.  310 ;  Brolan  v.  United 
States,  236  U.  S.  216,  59  L.  ed.  544,  35  Sup. 
Ct.  Rep.  285. 
It  ia  true  that  it  is  sought  to  take  this 


case  out  of  the  long-recognized  rule  by  the 
proposition  that  it  has  no  application  be- 
cause the  assailed  provision  was  enacted  to 
regulate  the  exhibition  of  photographic 
films  of  prize  fights  in  the  United  States, 
and  hence  it  must  be  treated  not  as  pro- 
hibiting the  introduction  of  the  films,  but 
as  forbidding  the  public  exhibition  of  the 
films  after  they  are  brought  in, — a  subject 
to  which,  it  is  insisted,  the  power  of  Con- 
gress does  not  extend.  But,  aside  from  the 
fictitious  assumption  on  which  the  proposi- 
tion is  based,  it  is  obviously  only  another 
form  of  denying  the  power  of  Congress  to 
prohibit,  since  if  the  imaginary  premise  and 
proposition  based  on  it  were  acceded  to,  the 
contention  [330]  would  inevitably  result  in 
denying  the  power  in  Congress  to  prohibit 
importation  as  to  every  article  which,  after 
importation,  would  be  subject  to  any  u»e 
whatever.  Moreover,  the  proposition  plain- 
ly is  wanting  in  merit,  since  it  rests  upon 
the  erroneous  assumption  that  the  motive 
of  Congress  in  exerting  its  plenary  power 
may  be  taken  into  view  for  the  purpose  of 
refusing  to  give  effect  to  such  power  when 
exercised.  Doyle  v.  Continental  Ins.  Co.  94 
U.  S.  535,  541,  24  L.  ed.  148,  151;  McCray 
V.  United  States,  195  U.  S.  27,  53-59,  49 
L.  ed.  78,  94-97,  24  Sup.  Ct.  Rep.  769,  1 
Ann.  Cas.  561 ;  Calder  v.  Michigan,  218  U. 
S.  591,  598,  54  L.  ed.  1163,  1167,  31  Sup.  Ct. 
Rep.  122. 
Affirmed. 


TEXAS     k    PACIFIC     RAILWAY    COM- 
PANY,  Plff.  in  Err., 

V. 

J.  T.  BIGGER  et  al. 

(See  S.  C.  Reporter's  ed.  330-339.) 

Error  to  circuit  court  of  appeals  —  dis- 
missal on  motion. 

1.  A  writ  of  error  to  the  circuit  court 
of  appeals  in  a  suit  against  a  Federal  cor- 
poration which  had  removed  the  case  from 

Note. — On  appellate  jurisdiction  of  Fed- 
eral Supreme  Court  over  circuit  courts  of 
appeals — see  notes  to  Bagley  v.  General  Fire 
Extinguisher  Co.  53  L.  ed.  U.  S.  605,  and 
St.  Anthony's  Church  v.  Pennsylvania  R. 
Co.  59  L.  ed.  U.  S.  1119. 

As  to  degree  of  care  required  toward  pas- 
senger at  station — see  note  to  St.  Louis,  I. 
M.  &  S.  R.  Co.  V.  Woods,  33  L.R.A.(N.S.) 
855. 

On  duty  of  carrier  as  to  condition  of  place 
used  as  flag  station — see  note  to  Fulghum 
V.  Atlantic  Coast  Line  R.  Co.  39  UR.A. 
(N.S.)    558. 

As  to  what  injuries  may  be  deemed  the 
proximate  result  of  discharging  passenger 
at  improper  place,  or  one  not  his  destina- 
tion— see  note  to  Georgia  R.  &  Electric  Co. 
V.  McAllister,  7  UR.A.(N.S.)  1177. 

2S9  U.  S. 


m^ 


TEXAS  A  P.  R.  CO.  v.  BIQOER. 


a  state  eourt  to  a  Federal  district  court 
will  not  be  dismissed  where  the  questions 
raised  by  such  writ  of  error  are  not  frivo- 
lous. 

(For  other  cases,  see  Appesl  sod  Error,  VII. 
1,  in  Digest   Sup.   Ct.   1908.] 

Ple«dlns  ^  to  Jurisdiction  —  waiver. 

2.  Ihe  defendant,  in  a  suit  removed  by 
it  from  a  state  court  to  a  Federal  district 
eourt,  may  not  raise  the  question  of  the 
state  court's  jurisdiction  by  an  amended 
answer  filed  in  the  Federal  court,  where  the 
petition  for  removal  contained  no  reserva- 
tion of  a  question  of  such  iurisdiction,  and 
where,  after  the  case  reached  the  Federal 
court,  there  were  pleadings  to  the  merits 
and  other  action  submitting  to  the  juris- 
diction. 

[For  other  cssen,  see  Pleading,  I.  g,  In  Digest 
Sop.  Ct.  1908.] 

Trlml  —  question  for  Jury  —  knowledge 
of  passenger. 

3.  Whether  or  not  a  passenger  for  a 
station  beyond  the  carrier's  line  should  have 
known  that  there  was  a  through  coach  at- 
tached to  the  train  is  a  question  for  the 
jury,  in  an  action  against  such  carrier  for 
the  passenger's  death,  alleged  to  have  been 
caused  by  exposure  to  a  storm  when  trans- 
ferring at  the  junction  point. 

[For  other  cases,  see  Trial,  402a-417.  in  Di- 
gest Sop.  Ct.   1908.1 

Connecting  curriers  —  duty  to  passen- 
ger at  Junction  ffoint. 

4.  A  carrier  which  has  accepted  a  pas- 
senger for  a  destination  beyond  its  own  line 
does  not  discharge  its  duty  by  delivering  him 
at  the  junction  point  during  a  heavy  rain, 
with  no  other  other  shelter  than  that  af- 
forded by  a  "switch  shanty,"  where  he 
could  have  reached  a  through  coach  at- 
tached to  the  train  by  merely  passing 
through  other  cars  had  he  been  informed 
that  Uiere  was  such  a  coach. 

(For  other  cases,  see  Carriers,  II.  a,  8,  to 
Digest   Sup.  Ct.   1908.] 

Connecting  carriers  —  measure  of  care 
toward  passenger  at  Junction  point. 

5.  A  connecting  carrier  owes  the  same 
degree  of  care  towards  a  through  passenger 
who  has  alighted  from  a  train  at  a  junc- 
tion point  to  change  cars  that  it  is  bound 
to  observe  in  his  transportation. 

[For  other  cases,  see  Carriers.  II.  a,  4.  a,  in 
Digest   Sup.   Ct.  1908.  J 

Appeal  '—  error  In  Instructions  —  pre- 
judice. 

6.  The  jury  in  an  action  against  a  car- 
rier for  the  death  of  a  passenger  could  not 
have  been  embarrassed  by  the  court's  in- 
structions as  to  the  degree  of  care  which  the 
carrier  owed  to  the  passenger  under  the 
circumstances,  where,  if  the  testimony  for 
the  plaintiff  was  true,  the  carrier  did  not 
observe  even  ordinary  care,  and  if  that  for 
defendant  was  true,  the  company  was  not 
liable,  and  the  jury  was  so  instructed. 
(For  other  esses,  see  Appeal  end  Brror,  VIII. 

m,  4,  a,  in  Digest  Sop.  Ct.  1908.] 

[No.    342.] 

Submitted    November  .30,    1916.      Decided 

December  13,   1915. 
«•  Ii.  ed. 


1 


N  ERROR  to  the  United  SUtes  Circuit 
Court  of  Appeals  for  the  Fifth  Circuit 
to  review  a  judgment  which  affirmed  a 
judgment  of  the  District  Court  for  the 
Western  District  of  Texas  in  favor  of  plain- 
tiff in  an  action  against  a  carrier  for  the 
death  of  a  passenger.     Affirmed. 

See  same  case  below,  133  C.  C.  A.  673, 
218  Fed.  990. 

The  facts  are  stated  in  the  opinion. 

Messrs.  George  Thompson  and  T.  D. 
Cobb  submitted  the  cause  for  plaintiff  in 
error : 

The  question  of  jurisdiction  was  properly 
raised  and  preserved. 

O'Connell  v.  Reed,  5  C.  C.  A.  693,  12  U. 
S.  App.  369,  66  Fed.  531. 

Under  the  evidence  introduced  the  court 
erred  in  not  instructing  a  verdict  for  de- 
fendants. The  death  of  the  deceased  was 
caused  by  his  own  exposure  and  negligence 
and  want  of  care,  and  was  not  the  direct 
and  proximate  result  of  any  injuries  re- 
ceived by  him  while  he  was  on  defendant's 
train  as  a  passenger. 

Bowen  v.  New  York  C.  R.  Co.  18  N.  Y. 
408,  72  Am.  Dec.  629;  Brunswick  ft  W.  R. 
Co.  V.  Wiggins,  61  L.R.A.  113,  and  notes, 
113  Ga.  842,  39  S.  E.  551 ;  Davis  v.  Houston 
A  T.  C.  R.  Co.  26  Tex.  Civ.  App.  8,  69  S. 
W.  844;  Gulf,  C.  ft  S.  F.  R.  Co.  T.  Guess, 
—  Tex.  Civ.  App.  — ,  164  S.  W.  1061; 
Houston  ft  T.  C.  R.  Co.  v.  Batchler,  37  Tex. 
Civ.  App.  116,  83  S.  W.  902,  32  Tex.  Civ. 
App.  14,  73  S.  W.  981 ;  International  ft  G. 
N.  R.  Co.  V.  Welch,  86  Tex.  204,  40  Am.  St. 
Rep.  829,  24  S.  W.  390;  Louisville  ft  N. 
R.  Co.  V.  Keller,  104  Ky.  768,  47  8.  W. 
1072;  6  Am.  Neg.  Rep.  348;  Missouri,  K. 
ft  T.  R.  Co.  V.  Hagan,  42  Tex.  Civ. 
App.  133,  93  8.  W.  1017;  Nunn  v. 
Georgia  R.  Co.  71  Ga.  710,  61  Am.  Rep. 
284;  Gulf,  C.  ft  S.  F.  R.  Co.  v.  Butcher, 
83  Tex.  316,  18  S.  W.  683;  International  ft 
G.  N.  R.  Co.  V.  Halloren,  63  Tex.  64,  37 
Am.  Rep.  744;  West  Chicago  Street  R.  Co. 
V.  Walsh,  78  111.  App.  595;  St.  Louis  South- 
western R.  Co.  V.  Missildine, —  Tex.  Civ. 
App.  — ,  157  S.  W.  246;  St.  Louis,  A.  ft  T. 
R.  Co.  V.  Finley,  79  Tex.  88,  16  S.  W.  266, 
6  Am.  Neg.  Cas.  699;  Street,  Personal  In- 
juries, §§  368,  394,  396;  Texas  ft  P.  R.  Co. 
V.  Miller,  79  Tex.  78,  11  L.Rji.  396,  23  Am. 
St.  Rep.  308,  15  S.  W.  264,  6  Am.  Neg.  Cas. 
692;  Texas  ft  P.  R.  Co.  v.  Bingham,  90  Tex. 
227,  38  8.  W.  162;  Texas  ft  P.  R.  Co.  v. 
Cole,  66  Tex.  563,  1  8.  W.  629;  Wood  v. 
New  York  C.  ft  H.  R.  R.  Co.  17  Am.  Neg. 
Rep.  276,  note;  2  White,  Personal  Injuries, 
p.  1075. 

The  law  requires  the  highest  degree  of 
care  only  while  the  passenger  is  on  the 
train.    After    the    passenger    has    left   the 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Xnic, 


train  and  is  no  longer  under  the  control  of 
the  trainmen  (though  he  may  still  be  a 
pastenger  until  he  leaves  the  depot),  the 
railway  only  owes  him  the  degree  of  ordi- 
nary care. 

Texas  ft  P.  R.  Co.  t.  Dick,  26  Tex.  Civ. 
App.  256,  63  8.  W.  896,  10  Am.  N^.  Rep. 
196;  Townes,  Torts  (Tex.)  90;  Davis  v. 
Houston  k  T.  C.  R.  Co.  25  Tex.  Civ.  App. 
8,  59  S.  W.  844;  St.  Louis,  A.  ft  T.  R.  Co. 
V.  Finley,  79  Tex.  88,  16  S.  W.  266,  6  Am. 
Neg.  Cas.  500;  Texas  ft  P.  R.  Co.  v.  Cole, 
66  Tex.  563,  1  S.  W.  629;  Missouri,  K.  ft 
T.  R.  Co.  v.  Hagan,  42  Tex.  Civ.  App.  133, 
93  S.  W.  1014;  St.  Louis  Southwestern  R. 
Co.  v.  Missildine,  —  Tex.  Civ.  App.  — ,  157 
S.  W.  245;  Gulf,  C.  ft  S.  F.  R.  Co.  v.  Guess, 
—  Tex.  Civ.  App.  — ,  154  S.  W.  1061;  2 
White,  Personal  Injuries,  §§  19,  20,  pp. 
994,  995;  Texas  ft  P.  R.  Co.  v.  Bigham,  90 
Tex.  227,  38  S.  W.  162;  Street,  Personal 
Injuries,  §§  358,  394,  396. 

Railroads  are  not  required  to  provide 
adequate  accommodations  for  passengers 
where  they  alight  to  change  cars,  so  that 
they  may  be  protected  from  the  inclemency 
of  the  weather. 

St.  Louis  ft  S.  F.  R.  Co.  t.  Grider,  110 
Ark.  437,  161  S.  W.  1032;  Stamp  v.  Eastern 
R.  Co.  —  Tex.  Civ.  App.  — ,  161  S.  W.  450. 

The  carrier  discharged  the  duty  imposed 
by  the  court's  charge,  viz.,  to  provide  ade- 
quate^ safe,  and  comfortable  accommoda- 
tions, and  such  as  to  protect  the  passen- 
gers from  the  inclemency  of  the  weather. 
It  provided  for  such  accommodation  by  a 
through  car  of  the  I.  ft  G.  N.  R.  Co.  which  it 
transported  over  all  its  connecting  lines 
for  passengers  of  the  I.  ft  G.  N.  bound  for 
points  over  said  line,  and  a  through  pas- 
senger owed  some  duty  and  care  to  ascer- 
tain sueh  fact  for  himself. 

2  White,  Personal  Injuries,  pp.  586,  1075; 
Gulf,  C.  ft  S.  F.  R.  Co.  V.  Guess,  —  Tex. 
Civ.  App.  — ,  154  S.  W.  1061;  5  Am.  ft 
Eng.  Enc.  Law,  pp.  557-561;  International 
ft  G.  N.  R.  Co.  V.  Welch,  86  Tex.  204,  40 
Am.  St.  Rep.  829,  24  S.  W.  390. 

Bigger  being  sick  and  a  consumptive  when 
he  began  his  journey,  he  was  guilty  of  neg- 
ligence in  continuing  his  journey  in  wet 
clothing. 

International  ft  G.  N.  R.  Co.  T.  Halloren, 
63  Tex.  54,  37  Am.  Rep.  744;  Texas  ft  P. 
R.  Co.  V.  Miller,  79  Tex.  78,  11  L.R.A.  395, 
28  Am.  St.  Rep.  308,  15  S.  W.  264;  6  Am. 
N^.  Cas.  592;  Texas  ft  P.  R.  Co.  v.  Cole, 
66  Tex.  563,  1  S.  W.  629;  Missoun,  K.  ft 
T.  R.  Co.  V.  Hagan,  42  Tex.  Civ.  App.  133, 
93  S.  W.  1014;  Gulf,  C.  ft  S.  F.  R.  Co.  t. 
Guess,  —  Tex.  Civ.  App.  — ,  164  S.  W. 
1061;  6  Am.  ft  Eng.  Enc  Law,  671;  Ft. 
Worth  ft  R.  G.  R.  Co.  V.  Stewart,  ~  Tex. 
Civ.  App.  — ,  146  &  W.  866;   St.  Louis 


Southwestern  R.  Co.  v.  Freles,  —  Tex.  CiT. 
App.  — ,  166  S.  W.  91. 

The  said  Bigger,  having  been  an  invaUd 
and  affected  with  consumption  at  and  before 
he  got  wet,  had  no  business  or  employment. 
The  verdict  in  this  case  waa,  therefore,  ex- 
cessive, and  based  upon  no  sufficient  evi- 
dence of  expectancy. 

Street,  Personal  Injuriee,  f  394. 

The  court  having  erroneously  submitted 
the  issue  to  the  jury  as  to  whether  or  not 
defendant  notified  the  deceased  to  tranafer 
to  the  I.  ft  G.  N.  car,  before  reaching  Long- 
view,  the  defendant  claiming  to  have  made 
the  announcement  in  the  coach  in  which 
deceased  was  riding,  which  he  as  an  ordi- 
narily prudent  person  should  have  heard, 
and  having  instructed  the  jury  that  there 
was  a  sharp  conflict,  on  the  question  of 
announcement  for  the  jury  to  reconcile^ 
when  there  was  none,  it  was  error  not  to 
give  the  requested  special  charge  to  the 
effect  that  the  testimony  of  defendant's 
witnesses  could  not,  in  the  absence  of  anj- 
thing  to  discredit  or  contradict  them,  be 
arbitrarily  disregarded  because  they  were 
employed  by  the  railway  company. 

Brunswick  ft  W.  R.  Co.  v.  Wiggins,  61 
L.R.A.  113,  and  note,  113  Ga.  842,  39  B. 

E.  551. 

The  court  should  have  instructed  the  jury 
as  requested  on  the  question  of  ordinary 
care  required  of  Bigger,  as  a  sick  passen- 
ger, and  his  failure  to  transfer,  and  his 
failure  to  stop  at  Longview  and  otherwise 
take  care  of  himself.  Bigger 's  want  of 
care  in  not  informing  himself  of  the  at- 
tached car,  and  failure  to  have  it  attached 
to  transfer  him,  was  both  negligence  and 
a  waiver. 

6  Am.  ft  Eng.  Enc.  Law,  676. 

The  undisputed  evidence  showing  that 
Bigger  was  safely  transported  on  the  train 
of  and  over  the  line  of  the  T.  ft  P.  R.  Co., 
and  that  the  injury,  if  any,  was  received 
after  he  left  the  train  at  the  depot  to  enter 
the  I.  ft  G.  N.  car,  and  the  suit  being  based 
upon  the  existence  of  a  partnership  between 
the  defendants,  and  no  proof  having  been 
offered  to  show  the  ownership  of  the  ground 
and  whose  was  the  duty,  if  any  existed,  to 
build  and  maintain  the  depot  and  sheds, 
it  was  error  to  dismiss  any  of  the  parties 
and  hold  the  T.  ft  P.  alone. 

International  ft  G.  N.  R.  Co.  v.  Halloren, 
53  Tex.  54,  37  Am.  Rep.  744;  Gulf,  C.  ft  S. 

F.  R.  Co.  V.  Butcher,  83  Tex.  316,  18  & 
W.  583;  Houston  ft  T.  C.  R.  Co.  v.  Batchler» 
37  Tex.  Civ.  App.  116,  83  S.  W.  902,  82  TcK. 
Civ.  App.  14,  73  S.  W.  981;  Texas  ft  P. 
R.  Co.  V.  Miller,  79  Tex.  78,  11  LwR.A  895» 
23  Am.  St.  Rep.  308,  16  S.  W.  264,  6  Am. 
N^.  Cas.  692;  Louisville  ft  N.  R.  Co.  t. 
KeUer,  104  Ky.  768,  47  8.  W.  1072,  6  Am. 

»t9  V.  B. 


1915                                        TEXAS  k  P.  B.  CO.  ▼.  BIGGER.                                         831 

Keg.  Rep.  348;  West  Chicago  Street  R.  Co.  ft  S.  F.  R.  Co.  175  Mo.  App.  457,  161  S. 

T.  Walsh,  78  111.  App.  595;  Davis  v.  Houston  W.  638;  Stamp  ▼.  Eastern  R.  Co.  —  Tex. 

4  T.  C.  R.  Co.  25  Tex.  Civ.  App.  8,  59  S.  Civ.   App.   — ,   161    S.   W.   450;    Dallas  ▼. 

W.  844;    Nunn  v.  Georgia  R.  Co.  71   Qa.  Moore,   32   Tex.  Civ.   App.   230,   74   S.   W. 

710,  51  Am.  Rep.  284 ;   St.  Xx>uis,  A.  AT.  95 ;  Thomp.  Neg.  1947,  f  6218. 

R.  Co.  T.  Finley,  79  Tex.  88,  15  S.  W.  266,  The  passenger  is  under  some  obligation 

6  Am.  Neg.  Cas.  599;  Texas  A  P.  R.  Co.  w,  to  use  ordinary  care  for  himself  and  to 

Cole,  66  Tex.  563,  1  S.  W.  629;  Missouri,  exercise   his   faculties   in    looking   out   for 

K.  ft  T.  R.  Co.  y.  Hagan,  42  Tex.  Civ.  App.  and  taking  care  of  himself  on  the  trip. 

133,  93  S.  W.  1014;  St.  Louis  Southwestern  Louisville  ft  N.  R.  Co.  v.  Messer,  164  Ky. 

R.  Co.  v.  Missildine,  —  Tex.  Civ.  App.  — ,  218,  175  S.  W.  360. 

167  S.  W.  245;   Gulf,  C.  ft  S.  F    R    Co.  Messrs.    H.    O.    Carter    and    Perry    J. 

"'       •"'  Zi  /^„^^-  ^PP;  T' .        ^'  :l'  Lewis  submitted  the  cause  for  defendants 

1061;    2  White,   Personal   Injuries,   §§   19,  ^^  error- 

20,  pp.  944,  945,  1075;  Wood  v.  New  York  ^^^^  ^  p^^y  has  asserted  and  submitted 

C.  ft  H.  R.  R.  Co.  17  Am.  Neg.  Rep.  276,  jt^^-  ^  ^^  jurisdiction  of  a  court,  it  is 

note;  5  Am.  ft  Eng.  Enc.  Law,  2d  ed.  pp.  ^^  j^^^  ^j^^^  ^     1^^^  j^^  privilege  to  be 

658-561,  571,  576,  645;  International  ft  G.  ,„^  ;„  ^^^  ^^j^^^  ^^^ 

N.  R.  Co.  v.  Welch,  86  Tex.  204,  40  Am.  ^^  j^oore,  209  U.  S.  491-613,  52  L.  ed 

St  Rep.  829,  24  S.  W.  390;   Texas  ft  P.  904-914,  28  Sup.  a.  Rep.  585,  706,  14  Ann. 

R.  Co.  V.   Bigham,  90  Tex.  227,  38  8.  W.  q^^    j^q^.   Western  Loan  ft  Sav.  Bank  v. 

162;  Street,  Personal  Injuries,  §§  358,  396,  g^^^^  ^  g   ^onsol.  Min.  Co.  210  U.  S.  368- 

894;   Brunswick  ft  W.  R.  Co.  v.  Wiggins,  372,  52  L.  ed.  1101-1103,  28  Sup.  a.  Rep. 

61  L.R.A.  113,  and  note,  113  Ga.  842,  39  72O;  Texas  ft  P.  R.  Co.  v.  Cox,  146  U.  S. 

S-  ^-  ^^^'                               ,                   ,   ,  593-603,  36  L.  ed.  829-832,  12  Sup.  Ct.  Rep. 

The  circuit  court  of  appeals  erred  in  hold-  ^Qg 

ing  that  it  has  no  authority  to  pass  upon  ^iie  case  of  Gulf,  C.  ft  S.  F.  R.  Co.  v. 

the  question    of   the   cxcessiveness   of   the  g^elton,  30  Tex.   Civ.  App.  72,  69   S.   W. 

verdict.  ^53^  70  8.  W.  369,  96  Tex.  301,  72  S.  W. 

Fclton  ▼.  Spiro,  24  C.  C.  A.  327,  47  U.  j^^  ^^i^  ^^^  ^  railroad  was  negligent 
8.  App.  402,  78  Fed.  576,  2  Am.  Neg.  Cas.  ^Yiere  the  conductor  in  charge  of  the  train 
682;  Mt.  Adams  ft  E.  P.  Inclined  R.  Co.  failed  to  inform  a  passenger  that  there  were 
V.  Lowrey,  20  C.  C.  A.  596,  43  U.  S.  App.  coaches  attached  to  the  train  in  which  he 
408,  74  Fed.  463;  Farrar  v.  Wheeler,  75  ^^^^1^^  continue  his  journey,  and  that  it  was 
C.  C.  A.  386,  146  Fed.  483;  Felt  v.  Puget  negligence  on  the  part  of  the  railway  corn- 
Sound  Electric  R.  Co.  175  Fed.  477;  Duke  p^y  ^  ^^^^  ^d  command  the  passenger 
V.  St.  Louis  ft  S.  F.  R.  Co.  172  Fed.  686.  ^  j^^^  ^^  ^^^^^  ^^  ^  pl^^  upon  its  plat- 

The  undisputed  evidence  showing  that  ^^^  ^^at  was  not  a  safe  place  for  the  pas- 
Bigger  came  to  San  Antonio  a  sick  man,  to  ggng^rs  to  alight.  This  case  also  holds 
regain  his  health,  because  he  could  never  ^j^at  the  passenger,  in  obeying  the  request 
live  in  Tennessee,  and  was  returning  from  a  ^^  ^  employee,  was  not  guilty  of  contrib- 
visit  to  Tennessee,  f»a  the  I  ft  G.  N.  and  ^^^  negligence. 

T.  ft  P.  roads,  in  a  train  upon  which  there  ^^j^^  Personal  Injuries,  §  663;  Louis- 
was  an  I.  ft  G.  N.  coach  provided  for  I.  ft  ^.jj^  j^  j^  ^  q^  ^  K^ll^r,  104  Ky.  768, 
G.  N.  passengers,  which  he  could  have  en-  47  g  ^  1Q72,  5  Am.  Neg.  Rep.  348. 
tered  and  in  which  he  doubtless  traveled  The  degree  of  care  which  the  court  charged 
going  to  Tennessee,  this  being  the  safer  j^  ^j^^  ^^^^^  ^^^  ^f  ^l^i^  country, 
way  for  him  to  travel,  as  he  had  traveled  Indianapolis  ft  St.  L.  R.  Co.  v.  Horst,  93 
over  the  same  route  and  was  familiar  with  ^  g  291,  23  L.  ed.  898,  7  Am.  N^.  Cas. 
it,  and  the  undisputed  evidence  showing  331.  Missouri,  K.  ft  T.  R.  Co.  v.  White, 
that  he  was  guilty  of  want  of  ordinary  care  22  Tex.  Civ.  App.  424,  65  S.  W.  593;  St. 
in  not  making  inquiries  concerning  his  Lo^j^  Southwestern  R.  Co.  v.  Parks,  40 
route,  train,  or  cars,  or  in  not  going  in  said  rp^^  qj^  ^pp  430^  gQ  g  ^  343.  Missouri, 
car,  irrespective  of  whether  the  railwsy  was  g^  4  j  ^  ^  ^  q^^^^  _  j.^^  q.^  ^pp 
guilty  or  not  of  failure  of  any  duty  in  not  _  j^^  g^  ^  453.  Houston  ft  T.  C.  R.  Co. 
giving  notice  to  transfer  to  the  I.  ft  G.  N.  ^  Batchler,  32  Tex.  Civ.  App.  14,  73  S. 
car,  or  in  not  providing  sheds  to  protect  w.  981;  International  ft  G.  N.  R.  Co.  v. 
Mm  from  the  rain  after  leaving  the  train,  Holloren,  53  Tex.  54,  37  Am.  Rep.  744; 
— ^his  own  want  of  care  was  the  proximate  Pennsylvania  Co.  v.  Roy,  102  U.  S.  451, 
cause  of  his  injury.  26  L.  ed.  141,  10  Am.  Neg.  Cas.  593. 

International  ft  G.  N.  R.  Co.  v.  Edwards, 

100  Tex.  24,  93  S.  W.  106 ;  Louisville  ft  N.  Mr.  Justice  MoKenna  delivered  the  opin- 

R.  Co.  V.  Peck,  162  Ky.  6,  49  LJa.A.(N.S.)  ion  of  the  court: 

108,  153  S.  W.  40;  RiiBsell  T.  St.  Louii  Action  for  panonal  In^uxiM,  VstfSOiigDX.  V 


331-334 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cor.  Tkm; 


J.  T.  Bigger  against  plaintiff  in  error  and 
the  International  &  Great  Northern  Rail- 
way Company  and  the  St.  Louis,  Iron  Moun- 
tain, k  Southern  Railway  Company  in  the 
state  district  court  of  Bexar  county,  Texas. 

The  case  made  by  Bigger's  pleading  was 
this: 

Bigger  was  a  passenger  upon  the  Texas 
A  Pacific  Railway  Company's  train  on  a 
ticket  from  San  Antonio,  Texas,  to  Owens- 
boro,  Kentucky,  and  return,  having  pur- 
trhased  the  ticket  from  the  International  & 
Great  Northern  Railway  Company,  at  San 
Antonio,  Texas.  A  partnership  was  alleged 
between  the  companies. 

Bigger  was  returning  from  Owensboro  to 
San  Antonio,  and  was  compelled  and  re- 
quired to  leave  the  train  at  [332]  Longview 
during  a  very  severe  downpour  of  rain  at  a 
place  where  there  was  no  protection.  His 
clothes  became  thoroughly  drenched  with 
rain,  and  he  was  required  to  ride  in  them 
so  drenched  until  he  reached  San  Antonio 
at  about  10  o'clock  at  night.  As  a  result 
«>f  such  exposure  and  wetting  h^  became 
seriously  ill. 

At  the  time  the  Texas  k  Pacific  reached 
the  station  at  Longview  there  was  in  the 
train  a  car  destined  to  San  Antonio,  on  the 
line  of  the  International  k  Great  Northern 
Railway,  of  which  the  employees  of  the 
Texas  k  Pacific  knew,  but  they  neglected  to 
inform  Bigger  of  the  fact  and  give  him  an 
opportunity  to  transfer  to  such  car. 

It  was  charged  in  his  complaint  that  such 
facts  constituted  negligence  on  the  part  of 
the  company  and  its  employees. 

In  accordance  with  a  petition  by  the  Texas 
k  Pacific  Company  the  case  was  removed  to 
the  United  States  district  court  for  the 
western  district  of  Texas.  There  an  amend- 
ed petition  or  complaint  was  filed,  suggest- 
ing Bigger 's  death,  and  his  wife  and  six 
children  were  made  parties  plaintiff. 

The  St.  Louis,  Iron  Mountain,  k  Southern 
Railway  Company  filed  a  separate  demurrer 
and  answer. 

The  International  k  Great  Northern  Rail- 
way Company  and  the  Texas  k  Pacific  Rail- 
way Company  joined  in  a  general  demurrer 
and  in  an  answer  to  the  merits.  Subse- 
quently both  of  the  latter  companies  were 
given  leave  to  amend  and  availed  themselves 
of  it.  The  answer  of  the  Texas  k  Pacific 
Railway  Company  contained  a  general  de- 
murrer, a  general  denial  of  the  allegations, 
and  set  up  special  matters  in  defense.  It 
contained  no  plea  or  exception  to  the  juris- 
diction in  the  court,  state  or  Federal. 

The  case  was  continued  and  set  for  trial 
upon  motion  of  defendants,  and  the  Texas 
k  Pacific  Railway  Company  then  filed  a 
second  amended  answer,  in  which  it  set 
up  that  it  was  incorporated  under  an  act 


of  Congress,  had  [333]  its  domicil  in  Dal- 
las, Texas,  that  no  part  of  ita  road  waa  ia 
Bexar  county,  and  therefore  the  action  was 
improperly  brought  in  the  latter  eountj, 
and  the  court  was  without  jurisdiction  to 
try  it,  it  being  "one  arising  under  and  in- 
volving damages  for  personal  injury."  In- 
sufficiency of  the  petition  in  law  was  also 
alleged  and  that  the  petition  showed  on  its 
face  that  the  company  was  a  common  car- 
rier without  any  elements  of  partnership 
existing  between  it  and  the  other  defend- 
ants. The  answer  also  contained  general 
denials  of  the  allegations  of  the  petition, 
and  averred  besides  that  Bigger  had  ampla 
opportunity  to  transfer  from  one  coach  to 
another,  and  that  had  he  used  ordinary 
care  he  would  have  got  into  the  proper 
coach  either  when  he  first  boarded  the  train 
or  at  some  time  during  passage.  That  tha 
railway  company  complied  with  its  duty 
when  it  safely  transported  Bigger  to  Long- 
view,  and  at  that  station  its  relation  to 
him,  10  far  as  he  was  a  passenger,  termi- 
nated, as  he  was  entitled  to  ride  to  such 
point  and  no  farther. 

That  it  stopped  its  train  at  the  usual 
place,  and  the  station  building  and  aheltar 
from  rain  was  in  close  proximity  to  such 
point.  Ihat  other  passengers  alighted  and 
proceeded  to  such  station  building,  that 
there  was  no  reason  why  Bigger  should  not 
have  done  so,  and  that  his  exposure  waa  due 
to  his  own  negligence. 

That  his  ill  health  and  subsequent  death 
were  not  caused  by  nor  were  they  the  re- 
sult of  any  negligence  of  the  company,  but 
that  he  was  in  an  extremely  poor  stata  of 
health,  having  been  the  victim  for  a  long 
time  of  a  tubercular  infection  which  had  ao 
far  progressed  that  he  had  been  compelled 
to  give  up  his  work  and  return  to  San  An- 
tonio, with  hope  practically  abandoned,  and 
that  his  death  was  the  proximate  and  direct 
result  of  such  infection. 

Upon  the  issues  thus  joined  the  case  waa 
tried  to  a  jury.  The  court  directed  a  verdict 
for  all  of  the  companies  [334]  except  the 
Texas  k  Pacific,  against  which  company  » 
verdict  was  returned  in  the  aggregate 
amount  of  $15,250,  the  amounts  awarded 
to  the  wife  and  children  being  respectively 
specified.  Judgment  was  entered  accordingly 
and  affirmed  by  the  circuit  court  of  appeals. 

A  motion  is  made  to  dismiss  or,  alter- 
natively, to  affirm. 

The  motion  to  dismiss  is  overruled.  The 
railway  company  is  a  Federal  corporation 
and  the  questions  raised  are  not  frivoloua.  1 
We  pass,  therefore,  to  the  merits. 

iThis  case  was  pending  in  this  court  be- 
fore and  at  the  time  of  the  passage  of  the 
act  of  January  28,  1915,  38  Stat,  at  L.  804, 
chap.  22,  %%  6  and  6,  which  takes  away  from 

SS9  U.  8. 


1919. 


TEXAS  &  P.  R.  CO.  V.  BIQOKR. 


834-336 


The  questions  of  fact  must  be  considered 
u  determined  agftimt  the  company  by  the 
ferdict  of  the  jury;  that  is,  that  Bigger 
was  required  to  get  off  the  train  at  Long- 
?iew  in  a  drenching  rain,  that  the  accom- 
modations there  were  insufficient  for  the 
protection  of  passengers,  that  he  could  have 
been  transferred  to  a  coach  attached  to  the 
train,  but  was  not,  nor  was  he  told  of  it, 
and  that  the  exposure  resulted  in  his  death. 
And,  further,  the  verdict  is  conclusive  as 
to  the  condition  of  his  health  and  as  to  the 
expectancy  from  his  life. 

Our  consideration,  therefore,  must  be  con- 
fined  to  the  questions  of  law  arising  on  giv- 
ing or  refusing  instructions,  or  on  some 
other  ruling  of  the  court.  There  is  such 
other  ruling.  The  company  in  its  second 
amended  answer  in  the  district  court  ex- 
cepted to  plaintiff's  petition  on  the  ground 
that  it  showed  on  its  face  that  the  suit  was 
improperly  brought  in  Bexar  county.  The 
exception  was  overruled  and  this  is  at- 
ligned  as  error.  It  was  not  error.  The 
petition  for  removal  contained  no  reserva- 
tion of  a  question  of  the  jurisdiction  of  the 
itate  court,  and  after  the  case  reached 
the  district  court  there  were  pleadings  to  the 
[835]  merits  and  other  action  submitting 
to  the  jurisdiction.  Texas  k  P.  R.  Ck)'.  v. 
Hill,  237  U.  S.  208,  59  L.  ed.  918,  35  Sup. 
Ct.  Rep.  575. 

There  is  the  general  contention  that  a 
verdict  should  have  been  directed  for  the 
company.  The  contention  involves  the 
whole  case,  and  facts  and  law  are  so  inter- 
mingled as  to  make  the  latter  inseparably 
dependent  upon  the  former.  For  instance, 
it  is  urged  that  Bigger  did  not  exercise 
care  when  he  boarded  the  train  at  Little 
Rock.  He  could  have  known,  it  is  said, 
that  there  was  an  International  &  Great 
Korthem  coach  attached  to  the  train,  and 
that  he  should  have  heard  the  announce- 
ment to  passengers  to  transfer  to  that 
coach ;  and  "should  at  some  time  during  the 
route  have  looked  and  listened."  The  an- 
nouncement is  disputed,  and  whether  he 
should  have  known  of  the  International  k 
Great  Northern  coach  was  for  the  jury  to 
decide. 

There  is  testimony  to  the  effect  that  Big- 
ger was  required  to  get  out  at  Longview 
during  a  rain  of  such  severity  as  to  amount 
to  a  cloud-burst,  and  which  had  covered  the 
ground  with  water.  Against  this,  it  is  said 
that  where  he  descended  from  the  train  was 
a  suitable  place  to  walk,  and  that  there 
were  sheds  and  depots  and  other  buildings 

courts  of  the  United  States  jurisdiction  in 
raits  by  or  against  any  railroad  company 
on  the  ground  that  such  company  was  in- 
corporated under  an  act  of  Congress.  The 
ict  excepts  actions  or  suits  pending  at  the 
time  of  the  passage  of  the  act. 
••  li.  ed. 


near  at  hand  to  protect  him  from  the  rain. 
And  it  is  urged  that  he  should  not  have 
continued  his  journey  in  wet  clothes;  that 
he  could  have  changed  clothes  at  a  hotel  in 
Liongview  or  sought  the  accommodations 
of  a  Pullman  sleeper.  Finally  it  is  said  that 
the  Texas  k  Pacific  owed  him  no  further 
duty  when  he  left  its  train.  The  latter  con- 
tention can  be  immediately  risjected.  Tha 
company  accepted  him  as  a  passenger  for  a 
destination  beyond  Longview,  and  its  duty 
was  not  discharged  by  delivering  him  to  a 
storm,  protected  from  its  inclemency  only 
by  the  shelter  afforded  by  a  "switch  shanty," 
so-called  by  an  employee  of  the  road.  We 
may  remark  that  to  that  shanty  a  lady 
passenger  was  also  conducted  by  the  portcor 
of  the  train,  he  apparently  not  having 
knowledge  of  the  existence  [336]  of  other 
buildings  which  the  company  alleged  were 
available  to  Bigger.  The  lady  testified  that 
the  water  was  "3  inches  deep  on  the  ground" 
and  came  to  her  ankles,  and  that  "it  was 
raining  just  like  a  cloud-burst."  Nor  was 
it  a  condition  suddenly  occurring.  It 
rained  before  the  train  reached  Longview. 
"and  the  tracks  looked,"  the  witness  said* 
"like  they  were  covered  with  water."  And* 
we  may  say,  as  indicating  the  severity  of 
the  storm,  the  train  was  compelled  to  re- 
turn to  Longview  on  account  of  washouts. 
Such  conditions  of  discomfort  and  peril  to 
health  she.  Bigger,  and,  it  appears,  two 
other  passengers,  were  required  to  pass  to 
and  endure  in  order  to  take  a  car  which 
was  attached  to  the  train  and  which  could 
have  been  reached  by  merely  passing 
through  other  cars.  And  these  were  the 
conditions  a  jury  had  the  right  to  believe 
existed,  although  there  was  contradiction 
of  them.  The  other  contentions  involved 
considerations  for  the  judgment  of  the  jury. 

There  is  an  objection  to  the  charge  of  the 
court  that  it  gave  too  much  emphasis  to  the 
duty  of  the  company,  and  not  enough  to 
the  duty  of  Bigger  as  a  passenger.  The  ob- 
jection involves  the  charge  as  a  whole,  and, 
as  it  would  be  inconvenient  to  quote  it,  we 
simply  say  that  the.  objection  is  not  justi- 
fied. The  court  expressed  the  elements  of 
liability  of  the  company,  and  it  expressed 
as  well  the  conditions  of  recovery  on  the 
part  of  plaintiffs,  and  it  is  hypercritical  to 
say  that  the  emphasis  was  more  on  one  than 
on  the  other,  as  presently  will  be  shown. 

The  most  important  contention  of  the 
company  is  based  on  the  charge  of  the 
court  as  to  the  degree  of  care  required  of  the 
company.  The  court  said  that  if  Bigger's 
"illness  and  subsequent  death  did  not  result 
directly  from  the  negligence  of  the  defend- 
ant, they  [plaintiffs]  would  not  be  entitled 
to  recover."  And,  it  was  added,  "What, 
then,  it  negligence  t     It  \a  t>DA  i«^\uT«  \a> 


83&^89 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TkBM» 


do  what  a  reasonable  person  would  ordi- 
narily have  done  under  the  circumstances  of 
[337]  the  situation,  or  the  doing  what  such 
person,  under  the  existing  circumstances, 
would  not  have  done.  The  essence  of  the 
fault  mav  He  in  omission  or  in  commission. 
The  duty  is  dictated  and  measured  by  the 
exigencies  of  the  occasion." 

The  court  -  recited  the  evidence  and  the 
contentions  of  the  parties,  and  said  that  it 
was  the  duty  of  the  company  "to  provide 
adequate  and  safe  accommodations  for  pas- 
sengers where  they  could  alight  to  change 
cars  and  wliere  they  could  be  protected." 
And,  further,  that  if  this  was  done  the  com- 
pany had  fulfilled  its  duty  and  no  recov- 
ery could  be  had  against  it.  If  it  had  not 
done  so,  and,  "if  the  employees  of  the  de- 
fendant required  the  deceased  to  get  off  the 
train  in  a  severe  rain,  and  his  illness  re- 
sulted therefrom  without  any  fault  or  neg- 
ligence on  his  part,  the  plaintiffs  would  be 
entitled  to  recover."  And  it  was  said:  "In 
this  connection  you  are  further  instructed 
that  the  deceased  was  required  to  look  out 
for  his  own  comfort  and  safety;  and  if  he 
was  in  any  respect  guilty  of  negligence  con- 
tributing to  his  illness  and  death,  then  no 
recovery  can  be  had  by  the  plaintiffs  in  this 
proceeding." 

The  court,  at  the  request  of  the  company, 
further  instructed  the  jury  that  if  Bigger, 
at  the  time  he  entered  the  car,  was  sick  with 
lung  trouble,  and  knew  thrre  were  chances 
of  injury  by  exposure,  and  he  neglected  to 
use  ordinary  care  and  prudence  to  protect 
himself  against  any  contingency  which 
might  arise  during  the  journey,  and  if  he 
changed  cars  when,  by  the  use  of  ordinary 
care,  he  could  have  avoided  doing  so,  or  if 
there  was  a  safer  way  for  him  to  have  gone, 
which  lie  might  have  ascertained  by  ordi- 
nary care,  the  company  would  not  be  re- 
sponsible for  the  injury  which  resulted,  if 
any  resulted.  And,  further,  that  "all  these 
facts  and  circumstances  in  connection  with 
his  [Bigger's]  condition"  should  be  consid- 
ered in  determining  "whether  or  not  he 
used  that  ordinary  care  and  prudence  which 
an  ordinarily  prudent  person  would  have 
exercised  [338]  under  similar  circum- 
stances." To  these  instructions  there  was 
no  objection  except  to  that  part  which  ex- 
tended the  duty  of  the  company  to  the  pro- 
tection of  passengers  after  they  had  alighted 
from  the  train. 

But  the  court  instructed  the  jury,  at  the 
request  of  plaintiffs,  that  the  railway  com- 
pany "owed  its  passengers  the  duty  to  exer- 
cise that  high  degree  of  care  that  would  be 
exercised  by  every  prudent  person  under 
the  same  or  similar  circumstances,  and  a 
failure  to  exercise  such  degree  of  care  would  I 
be  negligence."  This  instruction  is  at- 1 
S16 


tacked  as  error  only  because  it  imposed  » 
high  degree  of  care  on  the  company  aft«r 
Bigger  had  left  the  train  "and  was  there- 
fore in  a  position  to  use  care  in  taking 
care  of  himself."  The  ground  of  the  ob- 
jection seems  to  be  that  the  duty  of  the 
company  ceased  upon  the  arrival  of  ita 
train  at  Longview.  To  this,  as  we  have 
already  said,  we  cannot  assent.  The  aame 
care  was  necessary  to  be  observed  for  Big- 
ger's  protection  at  that  place,  -under  the 
circumstances  presented  by  the  record,  as 
was  necessary  to  be  observed  in  his  trans- 
portation, and  the  charge  of  the  court  cor- 
rectly expressed  it.  Pennsylvania  Co.  v. 
Roy,  102  U.  S.  451,  26  L.  ed.  141,  10  Am. 
Neg.  Gas.  693;  Indianapolis  &  St.  L.  R. 
Co.  V.  Horst,  93  U.  S.  291,  23  L.  ed.  898,  7 
Am.  Neg.  Cas.  331. 

But  even  if  the  railway  company  could 
plead  a  lesser  degree  of  care  than  that  de- 
clared to  be  its  duty  in  the  charge  of  the 
court,  it  is  very  disputable  if  error  was  com- 
mitted to  the  prejudice  of  the  company.  Be- 
tween the  plaintiffs'  ground  of  action  and 
the  company's  ground  of  defense  there  was 
a  clear  line  of  distinction.  The  testimony 
of  plaintiffs  was  to  the  effect  that  Bigger 
was  compelled  to  descend  from  the  train  in 
the  midst  of  a  severe  storm  to  the  inade- 
quate protection  of  a  mere  shanty  to  await 
the  car  for  San  Antonio,  such  car  being  at- 
tached to  the  train  he  was  on  and  to  which 
he  could  have  gone  by  simply  passing 
through  other  cars  had  he  been  told  that 
it  was  part  of  the  train.  The  company  as- 
serts that  he  was  told  and  that  he  dis- 
regarded the  information.  If  the  latter 
[330]  was  true  the  company  was  not  liable, 
and  the  court  so  instructed  the  jury.  If 
the  testimony  of  plaintiffs  was  true,  th« 
company  did  not  observe  even  ordinary  care; 
and  which  was  the  fact  it  was  for  the  jurj 
to  decide,  and  their  judgment  in  deciding 
could  not  have  been  embarrassed  by  a  con* 
sideration  of  degrees  of  negligence  or  care. 

The  other  contentions  of  the  company  we 
think  do  not  require  special  comment.  Thej 
are  directed  to  the  proposition,  many  times 
repeated,  that  the  company  owed  no  duty 
to  Bigger,  or  else  had  observed  it,  and  that 
Bigger  had  not  used  care  either  in  avoiding 
exposure  or  in  preventing  an  injurious  ef- 
fect from  it.  They  attack  the  sufficiencj 
of  the  evidence,  and  assert,  in  effect,  tha4 
its  conflicts  should  be  resolved  againat 
plaintiffs.  The  propositions  of  law  involved 
are  those  which  we  have  considered. 

Judgment  affirmed. 

The  Chikt  Jusncs,  Mr.  Justice  Van  Be* 
vanter,  and  Mr.  Justice  McReynolds  di»> 
sent,  because  they  are  of  opinion  that  some 

2S9  U.  8. 


inc.  ATOEISOH,  T.  t  8.  F.  R.  CO.  t.  SWEARINOBR.  SM 

rf  ttw  butmetioiii  oompUlned  of  laid  upoi        Ur.  Bobvrt  Dnnlap  «rgacd  th*  oftUM, 

tt«  emrriar    K   heavier   Antj  than   th*   la«     and,  with  Meiara.  Gardiner  Lathrop,  J.  W. 

neofnlica.  Tttj,  and  A.  H.  Culw«ll,  flled  a,  brief  for 

plaintiff  In  error: 

_^^^  Tha    court    erred    in    charging    in    effeot 

that  a  violation  of  the  honra  of  aerTiee  act 

waa   n^ligence   pw  •«,   and    dcatroyed   tha 

defenaea  of  auuBicd  riak  and  contributorj 

negligence,  regardieai  of  whether  or  not  it 

CLAUDB  SWBABINOBN.  *■■  *^«   proximate  cause   of  the   aecldenL 

St.    Loula,    I.    M.    &    S.    R.    Co.    t.    Mo- 

(Sm  a  C.  Eeporter'i  ad.  339-344.)  Whirter,   2M   U.  8.   266,   ZBO,   281,  57   L. 

ed.  1179,  I1B7,  1133,  33  Sup.  Ct.  Rep.  8SS; 

Kaater  and   aerrajit  —  employera'   Ila-     Nitro-Glycerine  Caie  (Parrott  t.  Weill)   16 

bllilj  —  TloUtlon  of  hoara  of  aervlca     Wall    637,    El    L.    ed.    211;    Puget    Sound 

act  —  Mssnmed   riak  —  contributor]     Traction   Light  A   P.   Co.  t.   Hunt,    139   C 

>rcllgenc«.  C.  A.  432,  223  Fed.  955;  29  Cyc.  800;  His- 

The   unjnattfled  retant.on  of  an   in     „„,i   k.  t  T.  R.  Co.  v.  Foreman,  08  C.  C. 

tnatat«  railway  employee  on  dutj  for  mori      ,     „,     ,-,    _    .    ,-1.    wmi.„.i    v.ii«.   t> 

than  aixt«m  hours,  e™trary  to  the  houn     ^    ^^\"\  ^'^i  t  /    "''*'"°'l.  ^j"^   ^ 

•f  serrica  act  of  March  4,   1907    (34  SUt     ^o.  v.  Fulgham  L.R.A.-,  -,  104  C.  C.  A. 

•t  L.  1416,  Ohap.  2939,  Corap.  SUt.   1913     161,  181  Fed.  96;   Felt  ».  Boston  4  M.  R. 

I  3677),  I  2,  doaa  not  make  the  railway  com     Co.  ISl  Masa.  311,  37  N.  E.  376;  Hannigan 

Moy  nnqnalifledly  liable  for  ncgligentlj'  in     t.  Lehigh  k  H.  River  R.  Co.  167  N.  Y.  244, 

jnring  hun.  Irrespective  of  hli  contributor]     51  N    E   9S2 

atgUgenea  or  awmned  riik,  nnleas  the  re  xhe  conrfs  suhmieelon  of  tha  prorlao  of 
tentioD  eontributed  to  the  injury,  since  th<  ,|,.  ■,„„„  „.  __ai_.  .«*  -,..  _„»  s^,in.j_„ti_ 
lUtnta    that    excludes    contributory    negli     ""  ""•""  °'  ■"""•  "^  **'  '"''  »"ffl=i'^tly 

rice  and  a«iun.ption  of  riak  i«  anch  c?.e.  comprehensive. 
not  the  hour*  of  aerTlce  act  itaeU,  bu(  ^tiJUd  States  v.  New  World,  O.  t  W.  R. 
tha  inbaequent  employers'  liability  act  ol  Co.  21S  Fed.  704;  Chicago,  St.  L.  A  N.  0. 
April  22,  IBOe  (35  Stat,  at  L.  tt6,  chap  R.  Co.  t.  Pullman  Southern  Car  Co.  139 
149,  Comp.  SUt.  1913,  §|  8669,  8660),  ||  3,  U.  8.  79,  B8,  35  L.  ed.  97,  100,  ll'Sup.  Ct. 
4,  whidi  haa  that  operation  only  when  tbt     Rep.  490. 

toeaeh  of  the  law  contributM  to  the  Injury         There   are  four   provtao*  to  the  act,  and 
it  must  be  assumed  that  a  definite  meaning 
*■""■  '*■'  was   intended   for   each   of  them,   and    that 

they  did  not  mean  the  aame  thing. 

United   SUtes  t.  Great  Northern  R.  Co. 
130  C.  C.  A.  238,  220  Fed.  033. 
IN  ERHOB  to  t^a  United  State,  Circuit    ,    ^*"'"  **■*  '^'^f"'  «<»  consequent  de- 
1   Court  of  Appeals  for  the  Fifth  Circuit    ^^    ""    "    unavoidable    acold«t,    or    the 
~        .  .    ,  ,.     I.,  I.     •»        J       ,    ,        result  of  a  cause  not  known  to  the  carrier, 

tojeriew  a  judgment  which  affirmed  a  judg-  -.      m  a.  ■      i       '      i        t. 

V     ,  ..      T^Ii  ._.  ^     _.  .      „      ,.,    .  or  lU  officer  or  agent  in  charge  of  such  em- 

■edl  of  the  District  Court  for  tlie  Western       ,  i  .v     .-  u  ,  i  «  .i. 

«._.  ■_.    .  T.  11  .     1   .   i-«  .  ployeo  at  the  time  such  employee  left  the 

DUtnct  of  Texa.  in  favor  of  plaintiff  m  an  [^rminal,  and  which  could  uot  have  been 
action  for  per^inal  injunea.     Reversed.  reasonably  foreseen,  were  appropriate  que.- 

The  facte  are  steted  in  the  opinion. ^^^^  ^j  ,,pt  „hich  shouU  have  been  sub- 

}  the  jury,   unleu,    of   course,   de- 
evidence  of  exoneration  waa  clear 


liability  act — ace  notes  to  Lamphere  v.  Ore-  und  undisputed. 

CR.  A  NaT.  Co.  47  L.R.A.(I4.S.)  38;  and  Missouri,  K.  A  T.  R.  Co.  v.  United  6tete^ 

board  Air  Line  R,  Co.  v.  Horton,  L.R.A.  ^31  u.  8.  112,  68  L.  ed.  144,  34  Sup.  Ct. 

1W6C,  47.                        ,,_.,..■               ,*  Rep.  20;  United  SUtes  T.Lehigh  Valley  R. 

Aa  to  the  validity  of  legislation  r^lat-  [^I'^g  ^   j,   j^  ^BZ,  219  Fed.  632. 

mm  houra   of  labor — see   note   to   Atkin   t.  ..               .  .,     .   .     .    <  r<     _,         ,          >_ 

K^uaa,    48    L.    ed.    U.    B.    148;    Ej.    parte  It  was  not  the  intent  of  Congress  to  make 

Wong    Wing.    61    L.R.A.(N.8.)     361;    and  the  railway  companies  Insurers,  nor  to  exact 

Killer  T,  WUaon,  L.RA.1915F,  829.  from  them  practical  impassibilities. 

Otmerally,  aa  to  servant's  aiaumption  of  Northern  P.  R.  Co.  v.  United  SUtes,  129 

riak—aee  notes  to  Pidcock   t.  Union   P.  R.  0.  C.  A.  514,  213  Fed.   163;  United  States 

Co.   1    L.RA.  131;    Foley   t.   Pettee   Mach.  ,,  Missouri  P.  H.  Co.  130  C.  C.  A.  6,  213 

Works,  4  L.R.A.  61;  Howard  v.  Delaware  k  ^^   j^q 

p.  R.  Co.  T.  Dooly.  12  L.R.A.  342;   Kehler  ^"  plamtifl  wight  recover  in  any  one  tif 

T.  Sehwenk,   13   L.R.A.  374;    and  Southern  1»b  contingencies   mentioned,   ignoring   the 

t.  Co.  T.  8eley,  38  L.  ed.  U.  fi.  391.  question  whether  in  any  such  case  the  al- 

M  L.  ed.  W^ 


342,  343 


SUFREBiE  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


leged  negligence  was  the  proximate  cause 
of  the  accident  or  injury  ^  and,  moreover, 
the  evidence  was  insufficient  to  justify  the 
submission  of  certain  alleged  grounds  of 
recovery  to  the  jury. 

Chambers  v.  Everding  &  Farrell,  71  Or. 
521,  136  Pac.  885,  143  Pac.  620;  Texas  & 
P.  R.  Co.  V.  Bigham,  90  Tex.  223,  38  S.  W. 
163;  Milwaukee  &  St.  P.  R.  Co.  v.  Kellogg, 
94  U.  S.  469,  24  L.  ed.  256 ;  Wolosek  v.  Ciii- 
cago  &  M.  Electric  R.  Co.  158  Wis.  475,  149 
N.  W.  201 ;  Cole  v.  German  Sav.  k  L.  Soc. 
63  L.R.A.  416,  59  C.  C.  A.  593,  124  Fed. 
113,  14  Am.  Neg.  Rep.  676;  Stefanowski  ▼. 
Chain  Belt  Co.  129  Wis.  484,  7  L.R.A.(N.S.) 
955,  109  N.  W.  532;  Missouri  P.  R.  Co.  v. 
Columbia,  65  Kan.  300,  58  L.RA.  399,  69 
Pac.  338;  Cleghom  v.  Thompson,  62  Kan. 
727,  54  L.R.A.  402,  64  Pac.  605;  1  Suther- 
land,  Damages,  3d  ed.  §  16;  1  Shearm.  & 
Redf.  Neg.  4th  ed.  §  28;  Fleming  v.  Beck, 
48  Pa.  313;  Hoag  v.  Lake  Shore  A  M.  S.  R. 
Co.  85  Pa.  293,  27  Am.  Rep.  653;  Morrison 
V.  Davis,  20  Pa.  175,  57  Am.  Dec.  695; 
Memphis  A  C.  R.  Co.  v.  Reeves,  10  Wall. 
176,  19  L.  ed.  909 ;  Chicago,  St.  P.  M.  k  O. 
R.  Co.  V.  Elliott,  20  L.R.A.  582,  5  C.  C.  A. 
347,  12  U.  S.  App.  381,  55  Fed.  952,  7  Am. 
Neg.  Cas.  478;  SchefTer  v.  Washington  City, 
V.  M.  &  G.  S.  R.  Co.  105  U.  S.  249,  26  L. 
ed.  1070;  Glassey  v.  W'orcester  Consol. 
Street  R.  Co.  185  Mass.  315,  70  N.  £.  190, 
16  Am.  Neg.  Rep.  86;  Stone  v.  Boston  & 
A.  R.  Co.  171  Mass.  536,  41  L.R.A.  794, 
51  N.  £.  1,  4  Am.  Neg.  Rep.  490;  Kreigh 
V.  Westinghouse,  C.  K.  &,  Co.  11  LuRJk.. 
(N.S.)  684,  81  C.  C.  A.  338,  152  Fed.  120. 

The  evidence  was  conclusive  that  plaintiff 
assumed  the  risk  of  the  position  of  the 
engine  in  the  train,  and  of  the  position  and 
size  of  the  sill  step. 

Seaboard  Air  Line  R.  Co.  v.  Horton,  233 
U.  S.  504,  505,  58  L.  ed.  1070,  L.R.A.1915C, 
1,  34  Sup.  Ct.  Rep.  635,  Ann.  Cas.  1915B, 
475,  8  N.  C.  C.  A.  834;  Kohn  v.  McNulta, 
147  U.  8.  238,  37  L.  ed.  150, 13  Sup.  Ct.  Rep. 
298;  Southern  P.  Co.  v.  Seley,  152  U.  S. 
145,  38  L.  ed.  391,  14  Sup.  Ct.  Rep.  530. 

The  evidence  was  wholly  insufficient  to 
submit  certain  grounds  of  alleged  negli- 
gence to  the  jury. 

Griffin  ▼.  Springfield  Street  R.  Co.  219 
Mass.  55,  106  N.  E.  552. 

The  court  erred  in  instructing  the  jury  in 
this  case  that,  in  respect  to  allegations  as 
to  assumed  risk  and  contributory  negli- 
gence and  the  existence  of  a  casualty  and 
an  unforeseeable  cause,  the  burden  of  proof 
rested  upon  the  defendant. 

Beach»  Contrib.  Neg.  3d  ed.  gg  427,  428. 
«1S 


Mr.  Perry  J.  Lewis  submitted  the  cause 
for  defendant  in  error.  Messrs.  C.  P.  John- 
son and  S.  Engelking  were  on  the  brief: 

The  language  of  the  court,  *'If  you  find 
that  the  breaking  of  the  valve  yoke  could 
have  been  guarded  against,  or  foreseen  by 
the  exercise  of  ordinary  care,  then  you  are 
instructed  that  the  law  authorizes  you  to 
infer  negligence  on  the  part  of  the  defendant 
at  the  time  of  his  injury  in  requiring  him  to 
be  on  duty  more  than  sixteen  hours,*'  is 
complained  of  as  charging  negligcnV:c  per  se. 
However,  this  identical  language,  under  sim- 
ilar circumstances,  was  approved  by  this 
court  in  Grand  Trunk  R.  Co.  v.  Ives.  144 
U.  S.  408,  418,  36  L.  ed.  485,  480,  12  Sup. 
Ct.  Rep.  679,  12  Am.  Nog.  Cas.  650,  and 
seems  to  have  been  literally  embo<lied  in 
the  charge. 

The  inference  of  proximate  cause  was  in- 
evitable. 

Delaware^  L.  &  W.  R.  Co.  v.  Converse,  139 
U.  S.  469,  472,  35  L.  ed.  213,  215,  11  Sup. 
Ct.  Rep.  569. 

The  general  charge  fully  covered  the  iden- 
tical matter  set  out  in  special  charge  num- 
ber two.     Its  refusal  was  therefore  proper. 

Hartford  Life  Annuity  lus.  Co.  v.  Unsell, 
144  U.  S.  439,  447,  36  L.  ed.  4t0,  409,  12  Sup. 
Ct.  Rep.  671;  New  York,  L.  E.  A  VV.  R.  Co. 
V.  Winter,  143  U.  S.  60,  70,  75.  3G  L.  ed.  71, 
79,  80,  12  Sup.  Ct.  Rep.  356,  8  Am.  Nog. 
Cas.  690. 

Tlie  charge  which  places  on  defendant  the 
burden  of  proof  as  to  the  defenses  of  con- 
tributory negligence,  assumed  risk,  and  the 
relief  of  the  proviso,  was  proper. 

Indianapolis  A  St.  L.  R.  Co.  v.  Horst,  93 
U.  S.  291,  298,  23  L.  ed.  898,  900,  7  Am. 
Neg.  Cas.  331;  Washington  &  G.  R.  Co.  t. 
Harmon  (Washington  &.  G.  R.  Co.  v.  To- 
briner)  147  U.  S.  671,  580,  37  L,  ed.  284, 
288,  13  Sup.  Ct.  Rep.  557. 

Mr.  Justice  Holmes  delivered  the  opin- 
ion of  the  court: 

This  is  a  suit  for  personal  injuries  suf- 
fered by  the  plaintiff  (defendant  in  error) 
while  acting  as  fireman  upon  and  in  charge 
of  a  defective  engine  tluvt  had  been  picked 
up  by  a  train.  He  had  been  kept  on  duty  for 
more  than  [343]  sixteen  hours,  and,  as  we 
take  it  for  present  purposes,  contrary  to  the 
act  of  March  4,  1907,  chap.  2939,  S  2,  34 
SUt.  at  L.  1415,  1416,  Comp.  SUt.  1913,  §| 
8677,  8678,  without  the  justifications  or  ex- 
cuses allowed  in  §  3.  While  about  to  do 
some  oiling  according  to  directions,  he  fell 
from  the  running  board  of  the  pilot  and  his 
leg  was  cut  off.  There  was  evidence  of  neg- 
ligence on  the  part  of  the  railroad,  but  the 
defendant   set    up   that   the    plaintiff   was 

2S9  U.  S. 


1915. 


UNITED  STATES  t.  NORMILE. 


343,  344 


guilty  of  contributory  negligence  and  as- 
sumed the  risk.  The  only  matter  that  we 
have  to  consider  here  is  an  instruction  giv- 
en to  the  jury  touching  the  effect  of  keeping 
the  plaintiff  on  duty  overtime  upon  these 
matters  alleged  by  the  defense. 

The  delay  that  led  to  keeping  the  plaintiff 
on  duty  too  long  was  caused  by  th&  breaking 
of  a  valve  yoke,  and  a  part  of  the  charge 
was  as  follows:  "If,  hewever,  you  believe 
that  said  breaking  of  the  valve  yoke  was  no 
such  casualty  or  unknown  and  unforeseeable 
cause  as  is  provided  by  law,  that  is  to  say,  if 
you  find  that  the  breiJcing  of  the  valve  yoke 
could  have  been  guarded  against  or  foreseen 
by  the  exercise  of  ordinary  care,  then  you 
are  instructed  that  the  law  authorizes  you 
to  infer  negligence  on  the  part  of  the  defend- 
ant at  the  time  of  plaintiff's  injury,  in  re- 
quiring him  to  be  on  duty  more  than  sixteen 
hours.  And  if  in  the  breaking  of  the  valve 
yoke  you  find  no  casualty  or  such  unknown 
and  unforeseeable  cause  as  aforesaid,  then 
and  in  that  event  you  will  entirely  disregard 
defendant's  pleas  of  contributory  n^ligence 
and  assumed  risk,  as  then  the  plaintiff  can 
in  no  way  be  held  to  have  been  guilty  of 
contributory  negligence  in  going  upon  the 
pilot  while  the  engine  was  moving,  nor  can 
he  in  any  way  be  held  to  have  assumed  any 
of  the  risks  ordinarily  incident  to  his  work 
or  even  open  and  apparent  to  him  at  the 
time  he  was  hurt." 

The  last  half  of  this  instruction  was  ex- 
cepted to  in  the  presence  of  the  jury,  but  the 
charge  was  not  modified.  It  was  the  one  in- 
struction specifically  directed  to  the  matter 
[344]  of  overtime.  The  natural  under- 
standing of  it  by  people  untrained  in  the 
law,  if  not  by  everybody,  would  be  that  the 
unjustified  retention  of  the  plaintiff  at  his 
work  for  more  than  sixteen  hours  would 
make  the  defendant  liable  whether  the 
retention  contributed  to  the  injury  or 
not.  The  statute  that  excludes  the  de- 
fenses of  contributory  negligence  and  as- 
sumption of  risk  in  such  a  case  is  not 
the  hours  of  labor  act  itself,  but  the 
subsequent  employers'  liability  act  of  April 
22,  1908,  chap.  149,  §§  3,  4,  36  Stat,  at  L. 
65,  66,  Comp.  SUt.  1913,  §§  8657,  8659,  8660. 
The  latter  has  that  operation  only  when 
the  breach  of  the  law  contributes  to  the  in- 
jury. St.  Louis,  I.  M.  A  S.  R.  Co.  ▼•  Mc- 
Whirter,  229  U.  S.  265,  279,  280,  57  L.  ed. 
1179, 1187,  33  Sup.  Ct  Rep.  858.  We  do  not 
think  it  possible  to  read  the  absolute  lan- 
guage of  the  instruction  as  implicitly  lim- 
ited to  such  a  case. 

Judgment  reversed. 

Mr.  Justice  Day  and  Mr.  Justice  Pitney 
dissent. 
6«  lu 


UNITED  STATES,  Appt.« 
v. 

SIMON  NORMILE,  John  A.  Fastabend, 
and  William  F.  McGregor,  Late  Partners 
as  Normile,  Fastabend,  &  McGregor.  (No. 
83.) 


SIMON  NORMILE,  John  A.  Fastabend, 
and  William  F.  McGr^or,  Late  Partners 
as  Normile,  Fastabend^  A  McGregor, 
Appts., 

V, 

UNITED  STATES.   (No.  84.) 
(See  S.  C.  Reporter's  ed.  344-349.) 

United  States  —  contracts  —  Increased 
cost  —  temporary  structures. 

1.  The  cost  of  the  last  two  of  three 
unsuccessful  temporary  dams  erected  by 
the  contractor  for  a  public  work  at  a  place 
designated  by  the  government  engineer  in 
charge,  and  the  charges  for  superintendence 
during  the  time  consumed  in  constructing 
them,  are  not  chargeable  to  the  United 
States,  where  the  contract  was  silent  as  to 
temporary  structures,  and  the  site  desig- 
nated by  the  engineer  seems  to  have  been  as 
good  as  any  other,  the  final  success  on  a 
new  site  having  be^  achieved  by  new  meth- 
ods, not  by  change  of  place,  there  beins 
nothing  to  show  that  the  new  methods  could 
not  earlier  have  been  adopted. 

[For  other  cases,  see  United  States,  VI.  f. 
Id   Digest  Sup.  Ct.  1908.] 

United  States  —  contracts  —  extra  ex- 
pense —  delay. 

2.  The  increased  cost  of  the  necessary 
labor  and  materials  for  a  public  work,  due 
to  the  breaking  out  of  the  war  of  1898  with 
Spain,  is  not  chargeable  to  the  United  States 
because  of  an  unexplained  delay  on  its  part 
in  notifying  the  contractors  that  they  could 
begin  work,  where  the  notice  was  given  in 
time  to  begin  work  as  early  as  contemplated 
by  the  specifications,  and  the  prices  had  ad- 
vanced before  the  supposed  neglect  on  the 
part  of  the  government  began,  and  the  con- 
tractors had  not  the  facilities  to  accumulate 
materials,  even  if  they  had  been  notified 
at  an  earlier  date. 

[For  other  cases,  see  United  States,  YI.  f» 
in  Digest  Sup.  Ct.  1908.] 


[Nos.  83  and  84.] 

Argued  December  3,  1916.    Decided  Decem- 
ber 13,  1916. 

CROSS  APPEALS  from  the  Court  of 
Claims  to  review  a  judgment  allow- 
ing in  part  a  claim  for  extra  expense  in- 
curred in  carrying  out  a  contract  for  a 
public  work.  Judgment  reversed  and  pe- 
tition dismissed. 
See  same  case  below,  49  Ct.  CI.  78. 
The  facts  are  stated  in  the  opinion. 

S19 


84e,  347 


SUPREME  COURT  OF  THE  UNH^ED  STATES. 


Oct. 


Aflsistant  Attorney  General  Thompson 
argued  the  cause,  and,  with  Mr.  Philip  M. 
Aahford,  filed  a  brief  for  the  United  States. 

Messrs.  Frank  Carter  Pope  and  Ben- 
jamin Carter  argued  the  cause  and  filed  a 
brief  for  Simon  Normile  et  al.: 

In  determining  the  rights  of  parties  under 
a  contract,  a  court  will  give  great  defer- 
ence to  the  practical  interpretation  which 
has  been  put  on  it,  in  the  course  of  its 
performance,  by  the  parties  themselves. 

District  of  Columbia  v.  Gallaher,  124  U. 
6.  606,  31  L.  ed.  626,  8  Sup.  Ct.  Rep.  686; 
Brooklyn  Lb  Ins.  Co.  v.  Dutcher,  96  U.  S. 
269,  24  L.  ed.  410;  Old  Colony  Trust  Co. 
V.  Omaha,  230  U.  S.  100,  67  L.  ed.  1410,  33 
Sup.  Ct.  Rep.  967;  Simpson  v.  United 
SUtes,  172  U.  S.  372,  382,  43  L.  ed.  482, 
486,  19  Sup.  Ct.  Rep.  212;  Topliff  v.  Top- 
liff,  122  U.  S.  121,  30  L.  ed.  1110,  7  Sup. 
Ct  Rep.  1067;  Fitzgerald  y.  First  Nat. 
Bank,  62  C.  C.  A.  276,  114  Fed.  474. 

The  United  States,  in  letting  a  construc- 
tion contract,  warrants  the  adequacy  of  the 
plan  and  the  competence  and  diligence  of 
its  agents  in  the  performance  of  all  duties 
imposed  upon  them  by  the  contract. 

Simpson  y.  United  States,  172  U.  S.  372, 
43  L.  ed.  482,  19  Sup.  Ct.  Rep.  212;  Christie 
y.  United  States,  237  U.  S.  234,  69  L.  ed. 
933,  36  Sup.  Ct.  Rep.  666;  United  States  v. 
Gibbons,  109  U.  S.  200,  27  L.  ed.  906,  3  Sup. 
Ct.  Rep.  117;  Moore  y.  United  States,  46 
Ct.  CI.  139;  Spearin  y.  United  States,  Ct.  CI. 
not  reported;  Wyandotte  &  D.  R.  Co.  y. 
King  Bridge  Co.  40  C.  C.  A.  326,  100  Fed. 
197. 

One  party  to  a  contract,  having  prevented 
performance  by  the  other  within  the  stipu- 
lated time,  is  not  relieved  from  liability 
by  anything  done  in  the  enforcement  or  dis- 
charge of  provisions  in  the  contract,  or  of 
other  agreements  supplemental  thereto,  by 
which  liquidated  damages  were  to  be  paid 
by  such  other  party  in  the  event  of  delay 
chargeable  to  him  or  purely  accidental. 

Maryland  Steel  Co.  v.  United  SUtes,  236 
U.  S.  461,  69  L.  ed.  312,  36  Sup.  Ct.  Rep. 
190;  United  States  v.  United  Engineering 
A  Contracting  Co.  234  U.  S.  236,  68  L.  ed. 
1294,  34  Sup.  Ct.  Rep.  843. 

One  party,  who  has  prevented  the  per- 
formance of  a  contract,  cannot  be  heard 
to  say,  in  defense  of  a  claim  against  him 
for  damages,  that  the  other  party  should 
have  gone  on  and  done  those  things,  unless 
in  the  situation  which  actually  arose,  that 
would  have  been  required  for  performance 
of  the  contract  on  his  part. 

Hinckley  v.  Pittsburgh  Bessemer  Steel 
Co.  121  U.  S.  264,  30  L.  ed.  967,  7  Sup. 
Ct.  Rep.  876. 

When  one  party  to  a  contract  has  pre- 

sso 


vented  performance  thereof  in  accordance 
with  its  terms,  and  plans  made  by  the  other 
party  for  obtaining  his  materials  have  been 
upset  thereby,  the  innocent  party  is  not 
bound,  upon  the  termination  of  the  delay, 
to  buy  forthwith  the  entire  supply  of  mate- 
rials which  will  be  required, — and  least  of 
all  where,  by  reason  of  the  delay,  condi- 
tions have  so  changed  that  the  materials 
cannot  be  used  as  rapidly  as  was  intended 
by  the  contract. 

Kelly  ft  Kelly  v.  United  States,  81  Ct 
CI.  861. 

[346]  Mr.  Justice  Holmes  delivered  the 
opinion  of  the  court. 

This  is  a  claim  for  extra  expenses  in- 
curred in  performing  a  contract  to  build  a 
dam  and  certain  accessories  on  the  Yamhill 
river,  Oregon.  The  contract  was  made  on 
March  11,  1898,  and  required  the  claim- 
ants to  begin  work  as  prescribed  l^  f  41 
of  the  specifications,  to  complete  the  keep- 
er's dwelling,  etc.,  within  sixty  days  from 
notification,  and  the  whole  work  before  De- 
cember 31,  1898.  Paragraph  41  of  the  q>eei* 
fications  stated  that  the  sites  for  the  oob- 
struction  had  not  yet  been  purchased  and 
that  no  work  would  be  begun  until  they  were 
secured.  It  then  provided  that  within  ten 
days  after  notification  that  the  sites  had 
been  secured  and  the  contract  had  been  ap- 
proved, the  contractor  "must  proceed  with 
the  work  in  a  vigorous  manner;  he  musi 
complete  the  keeper's  dwelling,  woodshed, 
walks,  fences,  etc.,  within  sixty  days 
from  date  of  notification,  and  the  whole 
contract  on  or  before  December  31,  1808.** 
It  added  that  because  of  the  spring  rise 
of  the  Willamette,  etc,  it  was  probable 
that  work  on  the  lock  and  dam  could 
not  be  beguu  before  June  at  the  ear- 
liest; and  that  the  date  of  completion  had 
been  set  because  it  was  desired  that  all  work 
should  be  finished  during  one  low-water 
season, — the  meaning  of  which  was  known 
by  the  claimants.  Authority  to  purchase 
was  asked  by  telegraph  on  March  10  and 
granted  on  March  16.  The  abstract  of  title 
and  deeds  were  sent  to  the  Chief  of  Engi- 
neers on  April  9  and  14,  and  the  contraetora, 
fvho  had  given  notice  of  their  readiness 
to  begin,  were  told  on  April  9  that  the  deeds 
had  been  sent  on.  On  April  29  a  telegram 
was  received  showing  encumbrances  to  be 
removed  before  the  deeds  were  accepted.  On 
May  13  the  attorney  for  the  United  States 
approved  the  title.  On  May  12  the  oontraet- 
ors  began  work  on  the  keeper's  dwellings 
etc.,  and  on  June  14  were  given  the  notifica- 
tion to  proceed. 

[347]  Before  June  14,  1898,  considerable 
work  had  been  done,  material  had  been  as- 

2S9  V.  8. 


1915. 


UNITED  STATES  t.  NORMILE. 


847-349 


•embled,  and  labor  employed.  The  war  with  i  superintendence  during  the  time  consumed 
Spain  began  on  April  21,  1898,  raising  the  in  constructing  them,  we  are  of  opinion  that 
price  of  labor  and  materials.  The  increased  the  United  States  is  entitled  to  prevail  in 
eost  ia  found,  but  it  is  found  also  that  this  i  its  appeal.  The  contract  was  silent  as  to 
increase  was  not  shown  to  be  due  to  any  them,  and  did  not  embrace  them.    A  contract 


breach  of  contract  by  the  United  States, 
and  that  the  claimants  did  not  have  room 
tnd  facilities  for  storing  large  consignments 
of  materials.  The  claimants,  however,  in- 
sist upon  this  item  being  allowed,  and  make 
it  the  ground  of  their  cross  appeal. 

In  1899,  after  a  lock  wall  had  been  built 
it  right  angles  with  the  line  of  the  wing 
dam  and  parallel  to  the  line  of  the  stream, 
it  became  necessary  to  divert  the  water 
from  the  line  of  the  wing  dam  in  order  that 
the  latter  might  be  built.  •This  had  to  be 
done  by  sending  the  water  through  the  lock 
chamber,  and  to  that  end  it  was  necessary 
to  build  a  temporary  dam.  The  claimants 
had  no  civil  engineer,  although  they  com- 
■landed  some  experience.  They  asked  the 
local  engineer  in  charge  for  the  United 
States  where  the  temporary  dam  should  be 
placed.  He  indicated  a  site  near  the  head  of 
the  lock,  where  the  river  was  narrow,  as  the 
only  suitable  place,  and  the  claimants  start- 
ed upon  the  dam  in  June.  The  up-stream 
end  of  the  lock  chamber  was  closed  with  a 
lift-wall,  and  to  turn  the  water  through  the 
chamber  it  had  to  be  raised  16  feet.  The 
bottom  of  the  river  was  inclined  to  disin- 
tegrate, and  when  the  water  was  raised  to 
12  feet  the  dam  broke.  Two  more  attempts 
were  made  with  the  same  result.  Early  in 
1900  the  claimants  applied  to  the  local  en- 
gineer for  leave  to  change  the  place  and  to 
cut  a  hole  through  the  lift-wall,  which  was 
granted,  and  the  dam  was  built.  The  bot- 
tom of  the  river  at  the  new  site  was  similar 
to  that  at  the  old,  and  it  would  not  have 
been  possible  to  construct  the  dam  there 
without  the  relief  afforded  by  the  hole.  The 
eourt  of  claims  allowed  the  cost  of  the  last 
two  temporary  dams  and  the  United  States 
appeals. 

[348]  The  specifications  provided  that  if 
the  time  for  performance  should  be  extended, 
all  expenses  for  inspection  and  superintend- 
ence should  be  deducted.  The  claimants  re- 
vested an  extension  of  time,  not  suggesting 
violence  of  the  elements,  contemplated  in  the 
contract  as  a  ground,  or  fault  of  the  United 
States.  The  extension  was  granted  with  a 
warning  that  it  would  not  absolve  them  from 
the  above  expenses.  The  court  of  claims  al- 
lowed the  claimants  the  expenses  accrued 
during  the  time  of  building  the  second  and 
third  temporary  dams,  from  which  allow- 
ance also  the  United  States  appeals. 

Taking  up  first  the  allowance  for  the  un- 
«icce8aful  temporary  dams  and  charges  for 
«0  li.  ed.  21 


to  produce  a  result  does  not  bring  the  means 
employed  to  provide  it  into  the  contract. 
Bacon  ▼.  Parker,  137  Mass.  309,  311 ;  United 
States  V.  O'Brien,  220  U.  S.  321,  327,  65  L. 
ed.  481,  484,  31  Sup.  Ct.  Bep.  406.  They 
remain  under  the  control  of  the  contractors 
alone.  The  claimants  rely  upon  specifica- 
tion 40:  "The  lines  and  levels  for  this 
work  will  be  established  on  the  ground  by 
the  engineers,  and  the  contractor  must  con- 
form and  keep  thereto."  But  this  refers  to 
the  work,  the  permanent  structure,  not  to 
the  transitory  instrumentality  used  in  build- 
ing it.  While  the  engineer  in  answer  to 
the  claimants  pointed  out  a  place  for  the 
temporary  dam,  it  does  not  appear  to  have 
been  ordered  to  be  placed  there.  Moreover, 
the  site  seems  to  have  been  as  good  as  any 
other,  the  final  success  having  been  achieved 
by  cutting  a  hole  in  the  lift-wall  of  the 
lock  chamber,  not  by  the  change  of  place. 
There  is  nothing  to  show  that  the  claimants 
could  not  have  left  this  opening,  or  have  ob- 
tained leave  to  make  it  earlier.  Leave  was 
granted  as  soon  as  asked,  llie  mode  of 
constructing  the  temporary  dam  was  whol- 
ly the  claimants'  affair. 

[340]  Upon  the  cross  appeal  also  we  are 
of  opinion  that  the  government  is  in  the 
right.  If  it  had  attempted  to  hold  the 
claimants  to  the  time  originally  men- 
tioned in  the  contract,  the  question 
might  be  different,  but  we  see  no  ground 
for  a  claim  on  their  part  to  hold  the 
United  States  liable  for  delay.  Speci- 
fication 41,  the  substance  of  which  has  been 
stated,  is  inconsistent  with  the  implication 
of  an  undertaking  that  the  claimants  shall 
be  notified  to  begin  within  any  particular 
time.  The  findings  hardly  warrant  the 
statement  in  the  opinion  that  the  delay  from 
May  13  to  June  14  was  chargeable  to  the  de- 
fendant's neglect.  It  simply  ia  left  unex- 
plained. The  notice  was  given  in  time  to  be- 
gin work  on  the  lock  and  dam  as  early  as 
was  contemplated  by  specification  41.  But 
further,  as  is  pointed  out  by  the  court  be- 
low, the  prices  had  advanced  before  the  sup- 
posed neglect  began, — ^not  to  speak  of  the 
finding  that  the  claimants  had  not  the  fa- 
cilities to  accumulate  material  even  if  they 
had  been  notified  at  an  earlier  date. 

Judgment  reversed* 

Petition  dismissed. 

Mr.  Justice  McReynolda  took  no  part  Id 
the  consideration  or  decision  of  these  eases. 


849 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tmmu, 


GREAT  NORTHERN   RAILWAY  COM- 
PANY, Plff.  in  Err., 

V. 

H.  W.  OTOS. 
(See  S.  C.  Reporter's  ed.  349-352.) 

Master  and  serraDt  —  safety  appliances 

—  employers'    liability   —   switching 
to  repair  track. 

1.  A  car  in  an  interstate  train  which 
was  marked  for  repairs  and  was  to  be 
switched  to  the  repair  track  before  going 
farther  was  not  withdrawn  from  interstate 
commerce  so  as  to  relieve  the  carrier  from 
liability,  under  the  safety  appliance  acts 
of  March  2,  1893  (27  Stat,  at  L.  631,  chap. 
106,  Comp.  Stat.  1913,  §  8606),  and  April 
14,  1910  (36  Stat,  at  L.  298,  chap.  160, 
Comp.  Stat.  1913,  §  8617),  and  the  employ- 
ers' liability  act  of  April  22,  1908  (35  SUt. 
at  L.  65,  chap.  149,  Comp.  Stat.  1913,  | 
8657),  to  a  switch  foreman  engaged  in 
breaking  up  the  train,  who  was  injured  in 
the  switching  operations  because  of  a  de- 
fective automatic  coupler  on  such  car. 
[For    other   cases,    see   Master    and    Servant, 

II.   a,   in   Digest   Sup.   Ct.   1908.] 

Master  and  servant  —  safety  appliances 

—  moving  car  for  repairs. 

2.  Whether  or  not  the  absolute  liabili- 
ty imposed  upon  the  carrier,  under  the 
safety  appliance  act  of  March  2,  1893  (27 
Stat,  at  L.  531,  chap.  196,  Comp.  Stat.  1913, 
§  8600),  extends  to  the  moving  of  a  car 
defectively  e<)uipped  to  a  place  where  it 
may  be  repaired,  the  supplementary  act  of 
April  14,  1910  (36  Stat,  at  L.  298,  chap. 
160,  Comp.  SUt.  1913,  S  8617),  unmis- 
takably imports  that  the  liability  exists. 
[For    other   cases,    see   Master   and    Servant, 

II.   a,   In   Digest   Sup.   Ct.   1908.] 

Master  and  servant  —  employers'  liabil- 
ity —  safety  appliances  —  contribu- 
tory negligence. 

3.  Contributory  negligence  of  an  injured 
employee  is  not  a  defense  to  an  action  by 
him  under  the  safety  appliance  acts  of 
March  2,  1893  (27  Stat,  at  L.  531,  chap. 
196,  Comp.  SUt.  1913,  §  8606),  and  April 
14,  1910  (36  Stat,  at  L.  298,  chap.  160, 
Comp.  Stat.  1913,  §  8617),  and  the  employ- 
ers' liability  act  of  April  22,  1908  (35 
Stat,  at  L.  65,  chap.  149,  Comp.  Stat.  1913, 

Note. — On  the  constitutionality,  applica- 
tion, and  effect  of  the  Federal  employers' 
liability  act — see  notes  to  Lamphere  v.  Ore- 
gon R.  A  Nav.  Co.  47  L.R.A.(N.S.)  38;  and 
Seaboard  Air  Line  R.  Co.  v.  Horton,  L.R.A. 
1915C,  47. 

On  the  liability  of  a  railroad  comprny  for 
injuries  to  an  employee  while  coupling  cars 
•^-^ee  notes  to  Kohn  v.  McNulta,  37  L.  ed. 
U.  S.  150;  and  Northern  P.  R.  Qo.  v.  Everett, 
38  L.  ed.  U.  S.  373. 

On  the  duty  and  liability  under  Fedsral 
and  state  railway  safety  appliance  acts — see 
notes  to  Chicago,  M.  A  St.  P.  R.  Co.  v. 
United  States,  20  L.R.A.(N.S.)  473;  Lake 
Shore  &  M.  S.  R.  Co.  v.  Benson,  41  L.R.A. 
(NS.)  49. 
S22 


I  8657),  if  a  defective  automatic  coupler 
was  the  proximate  cause  of  the  injurv. 
[For    other   cases,    see   Master   and    Servant^ 
II.   a,  in  Digest   Sap.  Ct.   1908.) 

[No.  429.] 

Argued  November  30,   1915.     Decided  De* 
cembar  13,  1915. 

JN  ERROR  to  the  Supreme  Court  of  the 
State  of  Minnesota  to  review  a  judg- 
ment which,  on  a  second  appeal,  affirmed 
a  judgment  of  the  District  Court  of  the 
County  of  Yellow  Medicine,  in  that  state,  in 
favor  of  plaintiff  in  an  action  under  the 
safety  appliance  and  employers'  liability 
acts.    Affirmed.  * 

See  same  case  below  on  first  appeal,  129 
Minn.  283,  150  N.  W.  922;  on  second  ap- 
peal, 129  lyiinn.  523,  151  N.  W.  1102. 

The  facts  are  stated  in  the  opinion. 

Mr.  E.  C.  lilndley  argued  the  cause,  and„ 
with  Messrs.  M.  L.  Countryman  and  A.  L. 
Janes,  filed  a  brief  for  plaintiff  in  error : 

A  wrong  or  tort  cannot  be  founded  upon 
a  non-negligent  necessary  act,  performed 
pursuant  to  a  paramount  duty. 

Cooley,  Torts,  2d  ed.  791;  Bigelow,  Torts, 
64;  Pollock,  Torts,  19;  Sqammon  v.  Chica- 
go, 25  111.  424,  79  Am.  Dec.  334. 

A  car,  even  though  loaded  with  interstate 
commerce,  while  being  taken  to  a  repair 
track  for  necessary  repairs  of  defects  dis- 
covered by  inspection  in  transit,  is  not 
engaged  in  interstate  commerce,  and  such 
movement  is  not  a  violation  of  the  Federal 
safety  appliance  law.  It  is  a  necessary 
act,  done  in  compliance  with  the  statutory- 
duty. 

Texas  k  P.  R.  Co.  v.  Rigsby,  138  C.  C.  A. 
51,  222  Fed.  221;  Delk  v.  St.  Louis  &  S.  F. 
R.  Co.  220  U.  8.  580,  55  L.  ed.  590,  31  Sup. 
Ct.  Rep.  617. 

Mr.  Tom  Davis  argued  the  cause,  and,^ 
with  Messrs.  Samuel  A.  Anderson  and  Ern- 
est A.  Michel,  filed  a  brief  for  defendant  in 
error : 

Defendant  in  error  was  engaged  in  inter- 
state commerce. 

St.  Louis  A  S.  F.  R.  Co.  v.  Conarty,  23a 
U.  S.  243,  59  L.  ed.  1290,  35  Sup.  Ct.  Rep. 
785;  Delk  v.  St.  Louis  k  S.  F.  R.  Co.  220 
U.  S.  580,  589,  55  L.  ed.  590,  596,  31  Sup. 
Ct.  Rep.  617;  Johnson  v.  Southern  P.  Co^ 
196  U.  S.  1,  49  L.  ed.  363,  25  Sup.  Ct.  Rep. 
158,  17  Am.  Neg.  Rep.  412;  Chicago,  M.  k 
St.  P.  R.  Co.  V.  Voelker,  70  L.R.A.  264,  65 
C.  C.  A.  226,  129  Fed.  522;  Pederson  v. 
Delaware,  L.  k  W.  R.  <^.  229  U.  S.  146, 
57  L.  ed.  1126,  33  Sup.  Ct.  Rep.  648,  Ann. 
Caa.  1914C,  153,  3  N.  C.  C.  A.  779. 

The  safety  appliance  act  applies  to  alt 

2S9  U.  8» 


lyio. 


GREAT  XORTHERX  R.  CO.  t.  OTOS. 


360-352 


care  and  similar  vehicles  used  on  any  rail- 
road engaged  in  interstate  commerce. 

Johnson  ▼.  Southern  P.  Go.  196  U.  S.  1, 
49  L..  ed.  363,  26  Sup.  Ct.  Rep.  158,  17  Am. 
Neg.  Rep.  412;  Schlemmer  ▼.  Buffalo,  R.  ft 
P.  R.  Co.  206  U.  S.  1,  61  L.  ed.  681,  27 
Sup.  Ct  Rep.  407;  Southern  R.  Co.  y. 
United  States,  222  U.  S.  20,  66  L.  ed.  72, 
32  Sup.  Ct.  Rep.  2,  3  N.  C.  C.  A.  822. 

There  is  a  liability  while  the  car  is  being 
removed  to  the  repair  track,  under  the 
amended  statute. 

Doherty,  Liability  of  Raihroads  to  Inter- 
tfUte  Employees,  pp.  200,  308-310;  St.  Louis 
ft  S.  F.  R.  Co;  V.  Gonarty,  238  U.  S.  243, 
59  L.  ed.  1290,  35  Sup.  Ct.  Rep.  785. 

Mr.  Justice  Holmes  delivered  the  opin- 
ion of  the  court: 

This  is  an  action  under  the  safety  ap- 
pliance act  and  employers'  liability  act. 
The  plaintiff  (defendant  in  error)  was  a 
switch  foreman  and  was  breaking  up  a  train 
that  had  come  into  his  state  from  the  west. 
At  the  moment  when  he  was  hurt  he  had 
three  cars  attached  to  a  switching  engine; 
the  rear  one  consigned  to  Duluth,  and  to  be 
switched  to  another  track;  the  next  con- 
signed to  Minneapolis;  both  loaded.  The 
automatic  coupler  on  the  Minneapolis  car 
was  out  of  order,  the  pin  lifter  was  missing, 
other  repaire  were  needed,  and  there  was 
evidence  that  it  had  been  marked  for  re- 
pairs and  was  to  be  switched  to  the  repair 
track  before  going  further.  In  the  switch- 
ing operation  the  plaintiff,  being  unable  to 
uncouple  the  Duluth  car  from  the  side  where 
the  pin  lifter  was  missing  without  going 
between  the  cars,  did  so  while  the  cars  were 
moving,  and  was  badly  hurt  The  jury  was 
instructed  that  [351]  if  th.e  injuries  "were 
due  directly  to  the  absence  and  imperfect 
working  condition  of  the  coupler  in  ques- 
tion" the  defendant  would  be  liable.  The 
plaintiff  got  a  verdict  and  judgment  was  or- 
dered for  $30,000,  which  order  was  affirmed 
by  the  supreme  court  of  the  state.  128 
Minn.  283,  150  N.  W.  922. 

The  defendant  argues  that  the  car  had 
been  withdrawn  from  interstate  commerce, 
and  that  therefore  the  act  of  March  2, 1893, 
chap.  196,  §  2,  27  SUt  at  L.  631,  Comp. 
Stat  1913,  §  8G06,  does  not  apply;  that  if  it 
does  apply,  the  defendant  was  required 
by  that  act  and  the  supplementary  act  of 
April  14,  1910,  chap.  160,  36  Stat,  at  L. 
298,  Comp.  SUt.  1913,  §  8617,  to  remove 
the  esLT  for  repairs,  and  that  its  effort  to 
comply  with  the  statutes  could  not  consti- 
tnte  a  tort;  and  that  the  plaintiff  was  a  per- 
son intrusted  by  it  with  the  details  of  the 
•0  L.  ed. 


removal,  and  could  not  make  it  responsible 
for  the  mode  in  which  its  duty  was  carried 
out;  that  he  might  have  detached  the  car 
while  it  was  at  rest.  But  we  are  of  opinion 
that  the  argument  cannot  prevail. 

The  car  was  loaded  and  in  fact  was  car- 
ried to  Minneapolis  the  next  day.  It  had 
not  been  withdrawn  from  interstate  com- 
merce, but  merely  subjected  to  a  delay  in 
carrying  it  to  its  destination.  At  the  mo- 
ment of  the  accident  it  was  accessory  to 
switching  the  Duluth  car.  It  does  not  seem 
to  us  to  need  extended  argument  to  show 
that  the  oar  still  was  subject  to  the  act  of 
Congress.  Delk  v.  St.  Louis  ft  S.  F.  R.  Co. 
220  U.  S.  680,  56  L.  ed.  590,  31  Sup.  Ct. 
Rep.  617.  As  the  safety  appliance  act  gov- 
erned the  case,  it  imposed  an  absolute  lia- 
bility upon  the  carrier.  St  Louis,  I.  M.  4 
8.  R.  Co.  V.  Taylor,  210  U.  S.  281,  62  L.  ed. 
1061,  28  Sup.  Ct  Rep.  616,  21  Am.  Neg.  Rep. 
464;  Chicago,  B.  &  Q.  R.  Go.  v.  United 
SUtes,  220  U.  S.  559,  55  L.  ed.  582,  31 
Sup.  Ct  Rep.  612.  The  supplementary  act 
of  April  14,  1910,  chap.  160,  $  4,  36  Stat 
at  L.  299,  Comp.  Stat  1913,  §  8621,  re- 
lieves the  carrier  from  the  statutory  penal- 
ties while  the  car  is  being  hauled  to  the 
nearest  available  point  where  it  can  be  re- 
paired, but  expressly  provides  that  it  shall 
not  be  construed  to  relieve  from  liability 
for  injury  to  an  employee  in  connection  with 
the  hauling  of  the  car.  The  [352]  next 
section  recites  that  under  §  4  the  movement 
of  a  car  with  defective  equipment  may  be 
made  within  the  limits  there  specified  with- 
out incurring  the  penalties,  '*but  shall  in  all 
other  respects  be  unlawful."  .  Whether  or 
not  the  absolute  liability  created  by  the  earl- 
ier act  extended  to  the  present  case,  and  we 
are  far  from  implying  that  it  did  not,  the 
act  of  1910  imports,  with  unmistakable  itera- 
tion, that  the  liability  exists.  Under  the 
instructions  of  the  court  the  jury  must  have 
found  that  the  defect  was  the  proximate 
caiAie  of  the  injury,  as  that  was  made  a 
condition  of  the  plaintiff's  right  to  recover. 
If  BO,  the  fact  that  the  plaintiff's  conduct 
contributed  to  the  result  was  not  a  defens^. 
Act  of  April  22,  1908,  chap.  149,  §§  3,  4, 
36  SUt.  at  L.  65,  66,  Comp.  Stat  1913,  §| 
8667,  8659,  8660.  Grand  Trunk  Western 
R.  Co.  V.  Lindsay,  233  U.  S.  42,  58  L.  ed. 
838,  34  Sup.  Ct  Rep.  681,  Ann.  Gas.  1914C, 
168.  In  view  of  the  statutes,  it  is  unneces- 
sary to  consider  the  limits  to  the  plaintiff's 
authority  by  his  instructions  from  above. 
In  any  view  of  the  evidence  he  was  not 
withdrawn  from  the  protection  of  the  acts. 

Judgment  afiOrmeiL 

MS 


SUPREME  COURT  OF  THE  UNITED  STATES. 


SEABOARD  AIR  LINE  RAILWAY,  Plff. 

in  Err., 

V. 

BEAUREQARD  MAGDALENE  KOEN- 
NECKE,  M  Administratrix  of  the  Es- 
tate of  J.  T.  KOENNECKE,  Deceased. 

(See  S.  C.  Reporter's  ed.  362-866.) 

Ck>nstltntlonaI  law  ^  due  process  of 
law  ^  procedure  ^  refaslng  continu- 
ance. 

1.  Requiring  the  trial  of  an  action  for 
the  death  of  an  interstate  railway  employee 
to  proceed  after  allowing  an  amendment  to 
the  complaint,  which  already  contained  an 
allegation  of  dependency,  so  as  specifically 
to  bring  the  case  within  the  Federal  employ- 
ers' liability  act  of  April  22,  1908  (35  SUt 
at  L.  65,  chap.  149,  C^omp.  Stat.  1913, 
§  8657),  is  not  such  an  abuse  of  discretion 
as  amounts  to  a  denial  of  the  due  process 
of  law  guaranteed  by  U.  S.  Const.,  14th 
Amend.,  where  defendant's  counsel  was  not 
willing  to  say  that  he  was  taken  by  sur- 
prise, although  stating  that  he  was  not  pre- 
pared on  the  question  of  dependency. 

[For  other  cases,  see  Constitutional  Law, 
IV.  b,  8,  in  Diffest  Sup.  Ct.  1908.] 

Master  and  servant  —  employers'  lia- 
bility —  when  servant  is  engaged  in 
interstate  commerce. 

2.  A  railway  employee  injured  while 
acting  as  switchman  was  employed  in  in- 
terstate commerce  within  the  meaning  of 
the  Federal  employers'  liability  act  of  April 
22,  1908  (35  Stat,  at  L.  65,  chap.  149,  Comp. 
Stat.  1913,  §  8657),  where  he  was  engaged 
at  the  time  in  distributing  the  cars  from  an 
interstate  train,  and  clearing  the  track  for 
another  interstate  train. 

(For  other  cases,  see  Master  and  Senrant,  II. 
a,  In  Diffest  Sup.  Ct.  1908.] 

Trial  ^  taking  case  from  Jury  ^  negli- 
gence ^  assumption  of  risk. 

3.  An  action  against  a  railway  com- 
pany for  the  death  of  a  switchman  in  its 
yard  could  not  have  been  taken  from  the 
jury  on  the  ground  either  that  there  was  no 
negligence,  or  that  the  deceased  assumed 
the  risk,  where  the  iury  might  have  found 
that  he  was  killed  by  a  train  which  had 
just  come  in  and  was  backing  into  the 
yard,  that  the  movement  was  not  a  yard 
movement,  that  it  was  on  the  main  track, 
and  that  there  was  no  lookout  on  the  end  of 
the  train,  and  no  warning  of  its  approach. 
[For  other  en  Res,  see  TriaU  VL  d,  in  Digest 

Sup.  Ct.   1908.1 

[No.  491.1 


Oct.  Teem, 
Decided  Ds- 


NoTE. — On  the  constitutionality,  applica- 
tion, and  effect  of  the  Federal  employers' 
liability  act — see  notes  to  Lamphere  v.  Ore- 
gon R.  &  Nav.  Co.  47  L.R.A.(N.S.)  38;  and 
Seaboard  Air  Line  R.  Co.  v.  Horton,  L.R.A. 
1915C,  47. 

On  volenti  non  fit  injuria  as  a  defense  to 
actions  by  injured  servants — see  note  to 
O'Maley  v.  South  Boston  Gaslight  Co.  47 
L.R.A.  161. 


I  Argued  November  30,   1915.     Deci 

cember  13,  1915. 

IN  ERROR  to  the  Supreme  Court  of  ths 
State  of  South  Carolina  to  review  a 
judgment  which  affirmed  a  judgment  of  the 
Court  of  Common  Pleas  for  Richland  Coun- 
ty, in  that  state,  in  favor  of  plaintiff  in  an 
action  for  death.     Affirmed. 

See  same  case  below,  101  S.  C.  86,  85  S. 
£.  374. 
The  facts  are  stated  in  the  opinion. 

Mr.  Jo  Berry  S.  Lyles  argued  the  cause 
and  filed  a  brief  for  plaintiff  in  error  :^ 

Since  the  Federal  act  does  not  provide 
the  specifications  and  regulations  or  rules  of 
conduct  in  detail,  we  must  look  to  the 
common  law  to  fill  the  gap;  but  it  must 
be  the  common  law  as  it  exists  uniformly 
throughout  the  area  to  which  the  act  ap- 
plies, and,  still  seeking  uniformity,  this 
can  be  found  only  in  the  common  law  as 
construed  uniformly  in  the  Federal  courts, 
and  not  in  the  varying  and  different  rules 
and  regulations  found  in  the  conunon  law 
as  construed  by  the  several  states. 

Second  Employers'  Liability  Cases  (Mon- 
dou  V.  New  York,  N.  H.  &  H.  R.  Co.)  223 
U.  S.  1,  56  L.  ed.  327,  38  L.RJl.(N.S.)  44, 
32  Sup.  Ct  Rep.  169,  1  N.  C.  C.  A.  875; 
Seaboard  Air  Line  R.  Co.  v.  Horton,  233 
U.  S.  492,  58  L.  ed.  1062,  L.R.A.1915C,  1, 
34  Sup.  Ct.  Rep.  635,  8  N.  C.  C.  A.  834, 
Ann.  Cas.  1915B,  475;  Seaboard  Air  Line 
R.  Co.  V.  Tilghman,  237  U.  S.  499,  59  L.  ed. 
1069,  35  Sup.  Ct.  Rep.  653;  Central  Ver- 
mont R.  Co.  V.  White,  238  U.  S.  507,  69 
L.  ed.  1433,  35  Sup.  Ct.  Rep.  865,  9  N.  C. 
C.  A.  265. 

The  uniform  rule  prevailing  in  the  Fed* 
eral  courts  is  that  an  employee  in  a  switch- 
ing yard,  primarily  purposed  and  used  for 
the  constant  switching  movement  of  cars 
and  engines,  is  charged  with  notice  of  such 
primary  purpose,  as  a  man  of  ordinary  in- 
telligence and  prudence,  and  can  reasonably 
expect  no  special  warning  of  such  a  move- 
ment so  long  as  it  is  an  ordinary  and  cus- 
tomary one.  The  primary  purpose  of  such 
a  yard  is  the  ordinary  switching  of  cars 
and  engines,  and  employees  there  take  their 
employment  for  the  purpose  of  assisting  in 
such,  not  for  the  purpose  of  hindering  or 
delaying  it.  Employees,  therefore^  must 
look  out  for  the  moving  cars  and  engines, 
and  so  long  as  there  is  nothing  unusual 
about  the  movement,  those  in  charge  of  the 
cars  and  engines  are  not  obliged  to  look 
out  for  employees. 

Aerkfetz  v.  Humphreys,  145  U.  S.  418, 
36  L.  ed.  758,  12  Sup.  Ct.  Rep.  835;  Tuttle 
V.  Detroit,  G.  H.  &  M.  R.  Co.  122  U.  S.  194, 
30  L.  ed.  1114,  7  Sup.  Ct.  Rep.  1166;  Nor- 

839  U.  S. 


Itl5. 


SEABOARD  A.  L.  R.  CO.  v.  KOEMNECKS. 


folk  k  W.  R.  Co.  ▼.  GeBswine,  76  C.  C.  A. 
814,  144  Fed.  56;  Connelly  v.  Pennsylvania 
R.  Co.  47  L.R.A.(N.S.)  867,  and  note,  119 
G.  C.  A.  392,  201  Fed.  54. 

Error  was  committed  by  the  trial  court 
in  not  taking  the  case  from  the  Jury  and 
instructing  a  verdict  for  the  defendant  upon 
the  assumption  that  there  was  no  evidence 
mfficient  to  justify  the  submission  of  the 
ease  to  the  jury  for  its  consideration. 

Seaboard  Air  Line  R.  Co.  v.  Padgett,  236 
U.  S.  668,  59  L.  ed.  777,  35  Sup.  Ct  Rep. 
481. 

There  was  no  evidence  that  plaintiff's 
intestate  was  employed  in  interstate  com- 
merce. 

Seaboard  Air  Line  R.  Co.  t.  Duvall;  225 
U.  8.  477,  482,  56  L.  ed.  1171,  1174,  82  Sup. 
Ct  Rep.  790;  Grand  Trunk  Western  R.  Co. 
?.  Lindsay,  238  U.  S.  42,  58  L.  ed.  838,  34 
Sap.  Ct.  Rep.  581,  Ann.  Cas.  1914C,  168; 
Illinois  C.  R.  Co.  v.  Behrens,  233  U.  S.  473, 
68  L.  ed.  1051,  34  Sup.  Ct.  Rep.  646,  Ann. 
Ofts.  1914C,  163. 

The  question  is  still  open  for  review  in 
this  court  whether  there  was  any  evidence 
of  negligence  on  the  part  of  the  defendant, 
and  whether  there  was  any  evidence  proxi- 
mately connecting  any  breach  of  duty  shown 
to  have  existed  with  the  injuries  suffered 
bjr  the  intestate. 

St  Louis,  I.  M.  &  S.  R.  Co.  v.  McWhirter, 
220  U.  S.  265,  57  L.  ed.  1179,  33  Sup.  Ct. 
Rep.  858. 

Even  granting  that  the  testimony  shows  a 
breach  of  duty  on  the  part  of  defendant 
ander  some  one  or  more  of  ther  allegations 
of  the  complaint,  there  is  no  evidence  to 
justify  the  reasonable  inference  that  such 
breach  of  duty  was  a  proximate  cause  of 
intestate's  death.  The  cause  of  intestate's 
death  is  a  matter  of  pure  surmise,  and  it 
it  is  no  more  reasonable  to  conjecture  that 
it  was  caused  by  the  negligence  of  the  de- 
fendant in  any  of  the  particulars  alleged 
than  it  is  to  conjecture  that  it  was  caused 
entirely  by  the  negligence  of  intestate,  by 
a  mistake  of  judgment  on  his  part,  or  in 
any  other  manner  to  which  the  limitless 
road  of  conjecture  may  lead  us. 

Patton  V.  Texas  &  P.  R.  Co.  179  U.  S.  658, 
46  L.  ed.  361,  21  Sup.  Ct.  Rep.  275;  Qreen 
?.  Southern  R.  Co.  72  S.  C.  308,  52  S.  £.  45, 
6  Ann.  Cas.  165. 

The  evidence  admitted  only  of  the  infer- 
ence that  intestate  assumed  the  risks. 

Seaboard  Air  Line  R.  Co.  v.  Horton,  233 
TJ.  8.  492,  58  L.  ed.  1062,  L.R.A.1915C,  1, 
34  Sup.  Ct.  Rep.  635,  8  N.  C.  C.  A.  834, 
Ann.  Cas.  1915B,  475;  Randall  v.  Baltimore 
*  0.  R.  Co.  109  U.  S.  478,  27  L.  ed.  1003, 
3  Sup.  Ct.  Rep.  322;  Tuttle  v.  Detroit,  G. 
H.  k  M.  R.  Co.  122  U.  S.  194,  30  L.  ed. 
10  L.  ed. 


1116,  7  Sup.  Ct.  Rep.  1166;  Southern  R.  Co. 
V.  Logan,  71  C.  C.  A.  281,  138  Fed.  725. 

When  the  plaintiff  sought  to  change  her 
complaint  by  alleging  the  facts  that  the 
defendant  carrier  was  engaged,  and  the 
plaintiff's  intestate  employed,  in  interstate 
conunerce,  she  sought  absolutely  to  change 
her  cause  of  action  from  one  under  one 
statute  to  one  under  another  and  different 
statute,  as  these  are  the  two  facts  making 
the  Federal  act  applicable^ 

Seaboard  Air  Line  R.  Co.  v.  Duvall,  225 
U.  S.  477,  482,  56  L.  ed.  1171,  1174,  32 
Sup.  Ct.  Rep.  790;  Grand  Trunk  Western 
R.  Co.  V.  Lindsay,  233  U.  S.  42,  58  L.  ed. 
838,  34  Sup.  Ct.  Rep.  581,  Ann.  Cas.  1914C, 
168. 

The  theory  of  the  supreme  court  of  South 
Carolina  that  the  change  made  by  the 
amendment  was  merely  technical,  and  not 
substantial,  is  contrary  to  the  decisions  of 
this  court. 

Troxell  v.  Delaware,  L.  k  W.  R.  Co.  227 
U.  S.  435,  57  L.  ed.  586,  33  Sup.  Ct.  Rep. 
274;  St.  Louis,  I.  M.  k  S.  R.  Co.  v.  Hes- 
terly,  228  U.  S.  702,  57  L.  ed.  1031,  33 
Sup.  Ct.  Rep.  703;  St.  Louis,  8.  F.  k  T. 
R.  Co.  v.  Scale,  229  U.  S.  156,  67  L.  ed. 
1129,  33  Sup.  Ct.  Rep.  651,  Ann.  Cas.  1914C, 
156;  North  Carolina  R.  Co.  v.  Zachary,  232 
U.  S.  248,  58  L.  ed.  591,  34  Sup.  Ct.  Rep. 
305,  9  N.  C.  C.  A.  109,  Ann.  Cas.  1914C, 
159;  Toledo,  St.  L.  k  W.  R.  Co.  v.  Slavin, 
236  U.  S.  454,  59  L.  ed.  671,  35  Sup.  Ct. 
Rep.  306. 

The  defendant  was,  therefore,  forced  on 
to  trial  on  an  entirely  distinct  and  separate 
cause  of  action,  on  which  it  had  never  been 
summoned  into  court,  and  on  which  it  had 
had  no  notice.  It  was  forced  to  proceed 
with  the  trial  of  this  new  case  over  its 
objection,  and  its  prayer  for  a  reasonable 
time  within  which  to  prepare  to  meet  the 
new  case  was  denied. 

Coe  V.  Armour  Fertilizer  Works,  237  U. 
S.  413,  59  L.  ed.  1027,  35  Sup.  Ct.  Rep. 
625. 

Mr.  Frank  O.  Tompkins  argued  the 
cause,  and,  with  Messrs.  C.  S.  Monteith  and 
W.  H.  Cobb,  filed  a  brief  for  defendant  in 
error: 

The  allowance  of  this  amendment  in  no 
way  contravened  the  Federal  act.  The 
court  merely  gave  effect  to  a  rule  of  local 
practice. 

Birt  V.  Southern  R.  Co.  87  S.  C.  239,  69 
S.  £.  233;  Shelton  v.  Southern  R.  Co.  86 
S.  C.  98,  67  S.  E.  899;  Hewlett  v.  South 
Bound  R.  Co.  93  S.  C.  76,  76  S.  E.  32. 

And  such  practice  has  the  approval  of  this 
court. 

Missouri,  K.  k  T.  R.  Co.  v.  Wulf,  226 
U.  S.  570,  67  L.  ed.  356,  33  Sup.  Ct.  Re^. 


353,  354 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Tebic, 


135,  Ann.  Cas.  1914B,  134;  North  Carolina 
It.  Co.  y.  Zachary,  232.  U.  8.  248,  58  L. 
ed.  591,  34  Sup.  Ct.  Rep.  305,  9  N.  C.  C.  A. 
109,  Ann.  Cas.  1914C,  159;  Wabaah  R.  Co. 
V.  Hayes,  234  U.  S.  86,  58  L.  ed.  1226,  34 
Sup.  Ct.  Rep.  729,  6  N.  C.  C.  A.  224;  Toledo, 
St.  L.  &  W.  R.  Co.  y.  Slavin,  236  U.  S.  454, 
59  L.  ed.  671,  35  Sup.  Ct.  Rep.  306. 

The  amendment  allowed  in  the  case  at 
bar  was  clearly  within  the  power  and  discre- 
tion of  the  court:  Such  an  amendment  may 
be  allowed  even  during  the  trial,  when  it 
does  not  so  materially  change  the  claim  or 
defencie  as  to  result  in  prejudice  to  the  ad- 
verse party. 

Shelton  v.  Southern  R.  Co. ;  Birt  v.  South- 
ern R.  Co.,  and  Hewlett  v.  South  Bound  R. 
Co.,  supra;  Central  Vermont  R.  Co.  v. 
White,  238  U.  S.  507,  59  L.  ed.  1433,  35 
Sup.  Ct.  Rep.  865,  9  N.  C.  C.  A.  265. 

Where  such  amendments  are  asked  for 
during  the  trial,  if  the  opposite  party 
would  be  misled  or  surprised  thereby  to 
his  prejudice,  it  is  incumbent  upon  him  to 
make  the  fact  appear  by  affidavit  or  other- 
wise, to  the  satisfaction  of  the  court;  and, 
if  that  is  done,  the  court  would  either  re- 
fuse the  amendment,  or,  granting  it,  would 
continue  the  hearing,  or  impose  such  other 
terms  and  conditions  as  it  might  deem  nec- 
essary to  prevent  prejudice. 

Shelton  v.  Southern  R.  Co.  supra. 

Intestate  was  engaged  in  interstate  com- 
merce. 

St.  Louis,  S.  F.  &  T.  R.  Co.  v.  Scale,  229 
U.  S.  156,  57  L.  ed.  1129,  33  Sup.  Ct.  Rep. 
651,  Ann.  Cas.  1914C,  156;  Pederson  v. 
Delaware,  L.  &  W.  R.  Co.  229  U.  S.  146,  57 
L.  ed.  1125,  33  Sup.  Ct.  Rep.  648,  3  N.  C. 
C.  A.  779,  Ann.  Cas.  1914C,  153;  New  York 
C.  A  H.  R.  R.  Co.  v.  Carr,  238  U.  S.  260, 
59  L.  ed.  1298,  35  Sup.  Ct.  Rep.  780,  9  N. 
v/.  C  A.  1. 

The  engine  that  killed  deceased  was  not 
engaged  in  an  ordinary  or  customary  switch 
or  intra-yard  movement,  but  was  engaged 
in  a  train  movement  over  main  line  tracks, 
which  movement  had  not  been  completed, 
and  the  movement  was  not  and  could  not 
be  made  with  the  freedom  which  is  usual 
in  an  intra-yard  movement. 

United  States  v.  Chicago,  B.  &  Q.  R.  Co. 
237  U.  S.  410,  59  L.  ed.  1023,  35  Sup.  Ct 
Rep.  634;  United  States  v.  Erie  R.  Co. 
237  U.  S.  402,  59  L.  ed.  1019,  35  Sup.  Ct. 
Rep.  621. 

There  was  ample  testimony  offered  in 
support  of  every  allegation  of  negligence 
charged  in  the  complaint,  and  the  case  was 
submitted  to  the  jury  under  a  full  charge  of 
the  court.  The  charge  was  such  as  has  been 
approved  by  this  court  in  Seaboard  Air  Line  i 
R.  Co.  V.  Moore,  228  U.  8.  433,  57  L.  ed. 


907,  33  Sup.  Ct.  Rep.  580;  McGovem  v. 
Philadelphia  &  R.  R.  Co.  235  U.  S.  389,  59 
L.  ed.  283,  35  Sup.  a.  Rep.  127,  8  N.  C.  C. 
A.  67. 

Even  if  we  were  to  concede,  which  we  by 
no  means  do,  that  the  testimony  offered  in 
support  of  the  allegations  of  negligence  in 
the  complaint  was  meager,  this  court  should 
not  dismiss  the  case. 

American  R.  Co.  v.  Didricksen,  227  U.  S. 
145,  57  L.  ed.  456,  33  Sup.  Ct.  Rep.  224; 
Myers  v.  PitUburgh  Coal  Co.  233  U.  S.  184, 
58  L.  ed.  906,  34  Sup.  Ct.  Rep.  550. 

A  direction  of  a  verdict  was  not  war- 
ranted and  would  have  been  improper. 

McGovem  v.  Philadelphia  &  R.  R.  Co. 
supra. 

The  contention  advanced  by  the  plaintiff 
in  error  to  the  effect  that  the  question  of 
dependency  was  not  an  issue,  under  the 
state  law,  is  erroneous.  It  is  true  that  re- 
covery under  the  state  law  can  be  had  in 
the  absence  of  evidence  showing  pecuniary 
loss,  but  where  there  is  no  evidence  of 
pecuniary  loss,  it  is  the  duty  of  the  court 
to  instruct  the  jury  not  to  consider  pe- 
cuniary loss  as  an  element  of  damage. 

Barksdale  v.  Seaboard  Air  Line  R.  Co. 
76  S.  C.  183,  56  S.  E.  906. 

Mr.  Justice  Holmes  delivered  the  opin- 
ion of  the  court: 

This  is  an  action  brought  by  the  defendant 
in  error  for  causing  the  death  of  her  intes- 
tate, J.  T.  Koennecke.  That  latter  was  run 
over  by  a  train  of  the  plaintiff  in  error  (the 
defendant)  while  acting  as  switchman  in 
the  defendant's  yard  at  Cayce,  South  Caro- 
lina. The  declaration  alleged  reckless  neg- 
ligence, and  set  out  that  the  wife  and  four 
children  nanied  were  the  only  heirs  and  dis- 
tributees of  the  deceased,  that  they  were 
dependent  upon  him  for  support,  and  that 
they  had  suffered  damage  to  the  amount  of 
$75,000.  There  was  a  statute  in  South  Car- 
olina similar  to  Lord  Campbell's  act  and 
allowing  exemplary  damages  in  the  case 
alleged.  In  view  of  testimony  brought  out 
on  cross-examination  of  the  plaintiff's  wit- 
nesses the  plaintiff  [354]  asked  leave  to 
amend  so  as  specifically  to  bring  the  case 
under  the  employers'  liability  act  of  Con- 
gress, of  April  22,  1908,  chap.  149,  35  SUt. 
at  L.  65,  Comp.  SUt.  1913,  §  8657,  the  dec- 
laration as  it  stood  not  disclosing  in  terms 
under  which  statute  the  action  was  brought. 
If  it  were  read  as  manifestly  demanding  ex- 
emplary damages,  that  wuuld  point  to  the 
state  law,  but  the  allegation  of  dependence 
was  relevant  only  under  the  act  of  Congress. 
The  amendment  was  allowed  over  a  denial 
of  the  power  of  the  court  to  allow  it,  which, 
however,  is  not  argued  here.  Central  Ver- 
mont R.  Co.  V.  White,  238  U.  S.  507,  59  L. 

239  V.  S. 


mfc                                  CHRIBTUNSON  v.  KINO  COUNTY.                             SIM-S66 

•d.  1433,  35  Sup.  Ct.  Rep.  866;  Miuouri  yard,  thftt  the  movement  was  not  s  yard 
K.  ft  T.  R.  Co.  T.  Waif,  226  V.  S.  670,  C76  moTement,  that  it  was  on  the  main  track, 
fi7  L.  ed.  355,  363,  33  Sup.  CL  Rep.  135  and  that  there  waa  no  lookout  on  the  end 
inn.  Cai.  1S14B,  134.  The  defendant  then  of  the  train  and  no  warning  of  ita  ap- 
objected  to  the  trial  going  on.  The  courl  proach.  In  ahort,  the  jury  might  have 
hft  it  to  the  counsel  to  say  whether  he  wai  found  that  the  eaae  waa  not  that  of  an  in- 
taken  by  iurprise,  and,  the  counsel  not  being  jury  done  by  a  awitching  engine  known  to 
billing  to  eay  so,  although  saying  that  h«  i„  engaged  upon  its  ordinary  buelneea  in  » 
wa.  not  prepared  on  the  question  of  d^  ^^^  ^-^^^  Aerkfeti  v.  HumphreyB,  115  D. 
pendency  ordered  the  trial  to  proceed.  I  g  ^^^  jg  ^  ^  ^^^  ^2  Sup  Ct  Rep.  B35, 
waa  alleged  as  an  error  that  the  requiremenl  i.  .<  i.  ^i.  i  i  ^^  1 
™  contrary  to  the  Uth  Amendment.  Th,  bt^  one  where  the  rule,  of  the  company  and 
other  error,  alleged  concerned  the  eulGciency  "'^''^We  care  required  a  lookout  to  be 
of  the  evidence  said  to  bring  the  case  with.  ''«?»■  "  •«'"•  *^  »»  "'•»  "  "•»"«  have 
in  the  act  of  CongrcM  and  al<K>  the  evidence  '««''  »""PO."ble  to  take  the  ease  from  the 
touching  the  questions  of  nf^Iigence  and  as-  J"'?  on  the  ground  either  that  there  woe  no 
sumption  of  risk.  The  plaintiff  got  »  ver-  negligence  or  that  the  deceased  asaumed  the 
diet  fur  $22,600,  and  the  supreme  court  ol  "'^-  ^P""  *■  consideration  of  all  the  ob- 
tbe  state  .usUined  the  judgment.  101  fi.  C,  jections  urged  by  the  plaintiff  in  error  fn 
8S,  8S  S.  £.  374.  its  argument  and  in  it.  briefs,  we  are 
There  is  nothing  to  show  that  the  trial  o'  opinion  that  the  judgment  should  b«  af- 
eonrt  exceeded  .  ita  discretionary  power  in  fl>'R>ed. 
allowing  the  trial  to  go  on, — atill  less  that  Judgment  affirmed, 
there  was  such  an  arbitrary  requirement  as 

to  amount  to  a  denisl  of  due  process  of  law  — 

within  the  Hth  Amendment.   The  court  well  ,---,,  THn\f*s  rHRifSTTAHRns   Piff   i, 

may  have  considered  that  the  defendant  was  "**J  THOMAS  CHRISTIANSON,  Pl«.  in 

endeavoring  to  get  a   technical   advantage,  -trr., 

n  it   had   a    right   to,   but   that   it   would  ^' 

MfTer  no  wrong,     ilie  cause  of  action  arose  COUNTV  OF  KINO, 

under   a   different   law   by   the   amendment.  Reporter's  ed.  369-373.) 

but   the    facta    constituting   the   tort   were  v    ct  u      .       (»-            *-              <     i 
He  same,  whichever  law  gave  them  that  ef- 
fect, and  the  court  wa.  warranted  in  think- 
ii^  that  on  the  matter  of  dependency  there 

[35S1  Next  it  i.  urged  that  there  waa  no  court  of  appeals  i.  not  final  where  it  suf- 

evidence  that  the  deceaaed  was  employed  In  Aclently  appear,  from  the  amended  bill  that 

iatersUte   commerce.     Upon   .uch   matters,  jur'sdietion    below    did    not   depend   solely 

a.  upon  queetion.  of  negligence  and  the  like,  "pO"  ""■  cititenahip  of  the  respective  par- 

brought  here  only  because  arising  in  actions  Nora.— On  appellate  jurisdiction  of  Fed- 

on  the  .tatat«,  and  involving  no  new  prin-  eral   Supreme  Court  over  circuit  courts  of 

eiple,   we  conSne   ourselves  to  a  summary  appeals — see  notes  to  Bagley  v..General  Fire 

■tatement  of  reaults.    The  deceased  was  en-  Extinguisher  Co.  53  L.  ed.  U.  S.  fl05;  and  St. 

Kaged  in  distributing  the  cars  from  an  in-  *„''',''™j'',,^"^,''J',  J-   Pe'»''«yl'""'ia   R.   Co. 

tersUU   train   and   clearing   the   track    for  ^^J^  ??■  "■  ^-  ",  n                         /     i     ■ 

..~.i.      ■   .      *  i    .     -        I?                           J  On  the  power  of  Congress  over  terntonea 

Mother  interstate  tram.    He  see  no  ground  _^  „„J~t„  pj^t  Naj.  Bank  v.  Yankton 

for  dispute  upon  tbi.  point.     Illinoi.  C.  R.  County,  25  L.  ed.  U.  S.  1048. 

Co.  r.  Behrena,  233  U.  S.  473,  478,  68  L.  ed.  As  to  whether  judicial  proeeeding  ia  neces- 

10S1.  1065,  34  Sup.  Ct.  Rep.  646,  Ann.  Cas.  sary  to  effect  escheat— see  note  to  Louiaville 

IBUC.  163.    The  tuggeation  that,  the  train  School  Board  v.  King,  16  L.RJk.(N.S.)  379. 

Ihat  had  come  in   being  a  local  train,  it  *■  *•  ewheat,  generally— see   notes   to 

■Igfat  have  dropped  all  the  cars  that  came  Awe'lc"  i^oitft.  Co.  v.  Tennille,  12  L,B.A. 

hL  outaid.  the  sUU  and  taken  up  other.,  f^^^"^  Hunilton  y.  Brown,  40  L.  «!.  U. 

appears  to  us  to  present  too  remote  a  po«-  On  wnclusivenesa  of  judgments,  gereral- 

tibility   to   warrant   withdrawing   the   case  |y,  .ee  notes  to  Sharon  v.  Terry,   1   L.R.A. 

from  the  jury.     See  New  York  C.  &  H.  R.  672;    Bollong    v.    Schuyler    Nat.    Bank,    3 

H,  Co.  V.  Carr,  238  U.  S.  260,  50  L.  ed.  1208,  I>.R.A.  142;  Wlese  v.  San  Francisco  Musical 

36  Sup   Ct   Rep   730  Fund  Soc.  7  L.RA.  677;  Morrill  v.  Morrill, 

We  see  dually  little  ground  for  the  con-  lio^^-*-„^"\?'!?!:i'o'';  ""P*"-.  "  ^-^-^i 

•».:»  .fc.»  .w™ _„  .„ij ^r '*B;   Bank  of  United  States  v.  Beverly,  11 

tention  that  there  was  no  evidence  of  neg-  ^^  ^   ^   g,  ^      j^^„^  g^^^,  gtreet^Bail 

ligence.     It  at  least  might  have  been  found  ^.^    ,    Wharton.  38  L.  ed.  U.  8.  420;   and 

that  Koennecke  was  killed  by  a  train  that  Southern  P.  R.  Co.  t.  United  States,  42  L. 

had  jiut  come  in  and  was  backing  into  the  ed.  U.  S.  365. 

«•  L.  ed.  \%1 


867,  358 


SUPREME  CX)UBT  OF  THE  UNITED  STATES. 


Oct.  TkBic, 


ties,  bnt  that  the  controversy  inyoWed,  with 
other  questions,  the  construction  of  an  act 
of  Congress  prescribing  the  authority  of  a 
territorial  legislature. 

[For  other  caues,  see  Appeal  and  Error,  ni. 
d,  2,  b,  in  Digest  Sap.  Ct.  1908.] 

Territories  ^  legislative  power  ^  es- 
cheat. 

2.  To  provide  for  escheat  to  the  county 
on  the  death  of  an  owner  in  fee  without 
heirs,  as  was  done  by  Wash.  Laws  1862-^, 
p.  262,  was  within  tiie  legislative  power  of 
the  territorial  legislature,  which  was  de- 
fined by  the  Washington  organic  act  of 
March  2,  1853  (10  Stat,  at  L.  172,  chap.  90, 
Ck>mp.  Stat.  1913,  §  3438),  §  6,  as  extending 
to  "all  rightful  subjects  of  legislation,"  not 
inconsistent  with  the  Federal  Constitution 
and  laws,  notwithstanding  the  further  pro- 
vision of  that  section  that  "no  law  sh^ll  be 
passed  interfering  with  the  primary  dis- 
posal of  the  soil.*' 

[For  other  cnnes,  see  Territories,  II.,  In  Digest 
Sop.  (X  1908.] 

Statutes  ^  entitling  ^  expression   of 
anbject  ^  plurality  of  subjects. 

3.  The  provisions  of  Wash.  Laws  1862- 
63,  p.  262,  for  escheat  to  the  county  on  the 
death  of  an  owner  in  fee  without  heirs,  have 
"proper  relation"  to  other  matters  embraced 
in  the  statute,  and  are  adequately  "ex- 
pressed in  the  title,"  within  the  meaning  of 
the  Washington  organic  act  of  March  2, 
1853  (10  Stat,  at  L.  172,  chap.  90,  Comp. 
Stat.  1913,  §  3425),  §  6,  where  the  title  of 
the  act  was  "An  Act  Defining  the  Jurisdic- 
tion and  Practice  in  the  Probate  Courts  of 
Washington  Territory,"  and  it  covered  the 
whole  subject  of  probate  practice,  of  wills, 
of  descent,  and  of  distribution. 

[For  other  cfines,  see  Statutes,  I.  e,  in  Diffest 
Sup.   Ct.   1908.] 

Territories  ~  legislative  powers  —  es- 
cheat. 

4.  The  Washington  territorial  legisla- 
ture having  authority  under  the  organic 
act  of  March  2,  1853  (10  Stat,  at  L.  172, 
chap.  90,  Comp.  Stat.  1913,  §  3425),  §  6, 
to  provide  for  escheat  on  failure  of  heirs, 
could  suitably  provide  as  to  the  tribunal 
which  should  have  jurisdiction  and  the 
procedure  for  determining  whether  the  rule 
was  applicable  in  a  particular  case. 

[For  other  en  Men,  see  Territories,  II.,  in  Digest 
Snp.  Ct.  1908.1 

Probate   courts  ^  Jurisdiction   —   es- 
cheat. 

6.  A  probate  court  having  power  under 
Wash.  Laws  1862-63,  p.  193,  to  determine 
the  interests  of  the  heirs  of  a  decedent  in 
the  real  estate  to  be  distributed,  had  also 
the  power  to  determine  whether  there  were 
heirs,  and  if  it  found  that  there  were  none, 
to  decree  an  escheat  to  the  county,  under  a 
provision  of  that  act  which  made  such  es- 
cheat on  failure  of  heirs  a  part  of  the 
scheme  of  distribution  as  tiierein  defined. 
[For  other  cases,  see  Courts,  II.  b,  2,  In 
Digest  Sop.  Ct.  1908.1 

Executors   and    administrators  —  ap- 
pointment —  collateral  attack. 

6.  The  appointment  of  an  administra- 
tor by  a  probata  court  having  Jurisdiction 
8t8 


over  the  subject-matter  is  not  subject  to 
collateral  attack  l>ecause  of  any  informality 
in  the  petition  for  his  appointment. 
[For  other  cases,  see  Bxecators  and  Admin> 
istrators,  IL  b,  in  Digest  Sup.  Ct.  1908.] 

Ck>nstltntlonaI  law  —  due  process  of  law 
^  escheat. 

7.  Property  is  not  taken  without  due 

process  of  law,  contrary  to  U.  S.  Const,, 

14th  Amend.,  by  a  decree  of  a  probate  court, 

made  under  statutory  authority,  escheating 

to  the  county,  after  appropriate  notice,  the 

real  property  of  an  intestate  who  was  found 

to  have  left  no  heirs. 

[For    other    cases,    see    Constitutional    Law, 
441-622,  in  Diffest  Sap.  Ct.  1908.] 

Judgment  —  conclusiveness  —  collater* 
al  attack  ^  probate  court. 

8.  Th^  decree  of  a  probate  court  of  com- 
petent iurisdiction,  made  under  statutory 
authority,  escheatiuff  to  the  county,  after 
appropriate  notice,  Uie  real  property  of  an 
intestate  who  was  found  to  have  left  no 
heirs,  is  not  open  to  collateral  attack  by  a 
person  claiming  title  as  heir  and  grantee 
of  other  heirs. 

[For  other  cases,  see  Judgment,  882-891,  in 
Digest  Sup.  Ct.  1908.1 

[No.  67.] 

Argued  November  9  and  10,  1915.    Decided 
December  13,  1915. 

IN  ERROR  to  the  United  SUtes  Circuit 
Court  of  Appeals  for  the  Ninth  Circuit 
to  review  a  judgment  which  aflirmed  a  judg- 
ment of  the  District  Court  for  the  Western 
District  of  Washington,  Northern  Division, 
sustaining  a  demurrer  to,  and  dismissing, 
the  complaint  in  an  action  to  recover  land 
and  to  quiet  title.    Affirmed. 

See  same  case  below,  122  C.  C.  A.  188» 
203  Fed.  894. 

Statement  by  Mr.  Justice  Hughes: 
This  is  a  suit,  brought  in  1911,  to  recover 
lands  in  the  city  of  Sesittle,  county  of  King, 
state  of  Washington,  and  to  quiet  title. 
See  Rem.  &  Bal.  Code  (Wash.)  §  785.  The 
plaintiff  claimed  title  as  heir,  and  grantee 
of  other  heirs,  of  Lars  Torgerscm  Qrotnes, 
who  died  intestate  in  the  county  of  King, 
territory  of  Washington,  in  March,  1865. 
The  defendant,  the  county  of  King,  succeeded 
the  county  of  King  of  the  territory,  which 
had  control  of  the  property  pursuant  to  a 
decree  of  escheat  which  was  passed  by  the 
probate  court  in  May,  1869.  The  legislature 
of  the  territory  had  provided  that  in  case, 
of  the  death  of  an  iutestate  leaving  no  kin- 
dred, his  estate  should  escheat  to  the  county 
in  which  it  was  situated.  Washington  Laws 
1862-63,  p.  262.  [358]  Donurrer  was  filed 
to  the  amended  complaint  on  the  grounds 
(among  others)  that  the  complaint  did  not 
state  facts  sufficient  to  constitute  a  cause  of 
action,  and  that  the  action  had  not  been  eom- 

889  U.  8* 


VU.                                 CHRIBTUNBON  t.  EINO  00UNT7.  U8-»» 

Braced   wtthin   the   time   limited   bf   law.  hereby  distribiited  U  followa,  to  wit:     The 

The  demurrer  was  auatained  and  judgment  entire  estate  to  the  eountj  of  King,  in  Walh- 

diamitaing   the   complaint   waa   affirmed   bj  ington  territory. 

the  court  of  appcali.  122  C.  C.  A.  IBS,  203 

Fed.  69*.  "The  following  is  a  particular  desoription 

After  alleging  title  in  tee  in  Lars  Tor-  of  the  said  reaidue  of  said  estate  referred 

fcraoB  Grotnea,  and  the  fact  that  he  had  to  in  thia  decree,  and  of  which  diatribution 

icqnircd  the  land  under  the  name  of  John  is  ordered,  adjudged,  and  decreed,  to  wit; 

Thompaon  (liaving  changed  his  name  to  con-  "let.  Cash,  to  wit:     t343.B3  gold  coin. 

«i*l  his   identity)    through    certain   mesne  "2d.  And  real  estate,  to  wit:     One  hun- 

eraveyaneea  from  the  grantee  of  the  United  dred  and  sixty  acrea  of  land  on  Duwamish 

fttatea,  the  amended  complaint  aet  forth  in  river,  in  King  count;,  W.  T.,  more  partleu- 

letail  the  procecdinga  in  the  probate  court,  larly  described  in  a  certain  deed  from  Jo- 

whieh  may  be  anmmarited  as  follows:   That  aeph  Williamson  and  William  Qrcenfleld  to 

<■  Uareh  20,  18G5,  the  probate  court,  upon  Jolin  Thompaon,  dated  January  IDth,  A.  n. 

U  informal  request  of  H.  L,  Yealer  and  J,  ISB".  ^"d  recorded  in  Volume  1  of  the  ree- 

WUIiamwrn,  aaaumcd  to  appoint  Daniel  Bag-  o"^*  "t  King  county,  W.  T.,  on  pages  468, 

lay  adminiatrator   of  the   estate  of  John  *^°'  *f^  *™- 
Thompaon,  deceased,  the  order  reciting  that 

tte  deeedent  bad  died  in  the  county,  intea-  ''"' 

to;  tb.t  Ju,  ^k.1.  tau,.rii.t.  pro.  ;?"«'  ^-y  f ,'■■  ;»"■■• , 

<«di»g.  tl,.  .dmml.tr.l»r  pr.MnM  U.  p»  '.'  "'  J  ''f,?  ""'5  tl"  "'VtX, 
~r7  "  ^  ,  ,„  ,„„„  ,  ..  ..  ,  and  void,  tliat  the  probate  court  waa  wholly 
fibon  on  February  12.  1869,  stating  that  no  ^^^^^^  juri^liction  to  paMi  [360]  upon  th« 
beirs  at  Uw  had  been  found  after  diligent  ^.^^^  ^^  j^e  land  described  or  to  declare  it  ee- 
•eareh,  and  praying  that  the  administrator  cheated;  that  ail  claims  to  the  land  by  de- 
might  be  discharged  and  that  afUr  due  no-  tendmt,  and  all  its  sets  relating  thereto, 
tice  the  eataU  might  be  turned  over  to  the  i,„d  beea  under  this  assailed  decree,  and 
eoonty  or  aueh  further  order  made  as  might  that  the  defendant  had  no  instrument  or 
be  meet;  and  that  on  May  20,  18B9,  after  judgment  purporting  to  evidence  any  title 
publication  of  notice  for  four  weeks  in  a  in  it;  that  neither  the  defendant  nor  any 
local  newspaper,  a  lliial  decree  of  dittribu-  other  authority  had  inatituted  any  suit  or 
tiou  was  entered  which  recited  the  proceed-  proceeding  before  any  tribunal  for  the  pur- 
higs  and  continued  aa  follows:  poae  of   liaving  an  escheat  declared  or   its 

"That  said  decedent  died  intestate  In  the  claim  of  title  conHrmed.  Tlie  acU  of  the 
county  of  King,  Washington  territory,  on  county  in  relation  to  the  land  were  set  forth, 
the  —  day  of  March,  a,  d.  1805,  leaving  do  the  tracts  involved  being  described  aa  the 
Iwirs  surviving  him;  "King  County  Farm,"  "King  County  Eo(- 
*........  pital  Grounds,"  "King  County  Addition  to 

"There  being  no  heirs  of  said  decedent,  the  City  of  Seattle,"  "King  County  2d  Ad- 

tbat  the  entire  estate  escheat  to  the  county  dition  to  the  City  of  Seattle."    The  plain- 

U  King,  in  Washington  territory.  tiff  did  not  seelc  to  recover  the  lands  whicli 

[358]    "Now  on  this  20th   day  of  May,  liaJ  been  appropriated  for  railroad  rights  of 

i.  D.  ISOQ,  on  motion  of  said  Daniel  Bagley,  way   or   highways,   or   that   portion    wJiich 

administrator  of  said  estate,  and  no  excep-  had  been  sold  to  innocent  purchasers,  and 

tious  or  objections  being  tiled  or  made  by  it  was  also  conceded  that  the  county  might 

any  person  interested  in  the  said  estate  or  retain   tlie   buildinga   and    tangible   better- 

etherwiae;  ments  which  it  had  placed  upon  the  land,  aa 

"It  ia  hereby  ordered,  adjudged,  and  dc-  stated, 

ereed:     that  ell  the  acts  and  proceedings  of  At   the   outaet,    after    alleging   that   the 

■aid  administrator,  aa  reported  by  thia  court  plaintifT  tvna  a  subject  of  the  King  of  Nor- 

ud  as  appearing  upon  the  recorila  thereof,  way  and  that  the  matter  in  dispute  exceeded 

bt  and  tiic  same  are  hereby  approved  and  in  value  the  sum  of  $300,000,  the  amended 

eonflrmed;  and  that  after  deducting  said  es-  complaint  set  forth  that  the  controversy  In- 

timated  expenses  of  cloaing  the  adminiatra-  volved   the   construction   of   Amendments  K 

Hon,   the   residue    of   aaid    estate   of   John  and   14  of  the  Constitution   of  the  United 

Thompson,  deceased,  not  heretofore  distrib-  States,  and  of  g|  18S1,  1907,  and  1924  of  the 

nted,  hereinafter  particularly  described,  and  Revised     Statutes    of    the    United     Statea 

now  remaining  in  the  hands  of  aaid  adminia-  (Comp.  Stat.  1B13,  g  S438),  relating  to  the 

trator,  and    any   other  property   not  now  territory  of  Washington. 

blown  or  discovered  which   may  belong  to  It  was   further  stated  that  the  hetrs  of 

tlie  aaid  estate,  or  in  which  the  said  estate  the  decedent  had  no  knowledge  of  his  wfaere- 

Biiy  have  any  interest,  be  and  the  aame  is  abouta  or  death  until  three  years  prior  t« 

ID  L.  ed.  \%« 


3eo 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Tfsii, 


tbe  beginning  of  the  action,  and  that  the  I 
heirs,   and  particularly   the   plaintiff,  had 
been  diligent  since  receiving  thia  informal 
tion  in  searching  for  the  proofs  of  the  de- 
cedent's identity  and  of  their  relationship. 

Mr.  Edward  Jndd  argued  the  cause,  and, 
with  Messrs.  Livingston  B.  Stedman  and  S. 
S.  Langland,  filed  a  brief  lor  plaintiff  in 
«rror : 

Under  our  system  of  government  all  prop- 
erty that  escheats  in  a  territory  goes  to  the 
United  States. 

Williams  ▼.  Wilson,  Mart.  &  Y.  248; 
Etheridge  ▼.  Doe,  18  Ala.  565;  Territory  ▼. 
Lee,  2  Mont.  124,  6  Mor.  Min.  Rep.  248; 
Church  of  Jesus  Christ  of  L.  D.  S.  v.  United 
SUtes,  136  U.  S.  1,  34  L.  ed.  481,  10  Sup. 
Ct.  Rep.  792. 

The  organic  law  of  the  territory  conveyed 
to  it  no  property  rights  of  the  United 
States. 

36  Cyc.  1171,  1177. 

The  territorial  act  giving  escheated  prop- 
erty to  its  counties  trenched  upon  the  pri- 
mary disposal  of  the  soil  in  a  manner  for- 
bidden by  the  organic  act. 

Territory  v.  Lee,  2  Mont.  124,  6  Mor.  Min. 
Rep.  248;  King  v.  Ware,  53  Iowa,  97,  4 
N.  W.  868. 

The  territorial  act  giving  escheated  prop- 
erty to  its  counties  had  not,  under  the  or- 
ganic law,  a  title  broad  enough  to  aover  the 
aubject-matter. 

Bradley  Engineering  &  Mach.  Co.  v. 
Muzzy,  54  Wash.  227,  103  Pac.  37,  18  Ann. 
Cas.  1072;  Harland  ▼.  Territory,  3  Wash. 
Terr.  131,  13  Pac.  453. 

The  sovereign  does  not  take  escheated 
property  as  a  successor  to  the  decedent. 
For  failure  of  heirs  the  title  of  the  decedent 
•ceases  and  terminates;  the  original  title  of 
the  sovereign  revives,  and  the  title  of  the 
sovereign  is  based  upon  its  original  owner- 
ship, and  not  upon  the  ownership  of  the 
decedent. 

State  V.  Ames,  23  La.  Ann.  71 ;  Re  Miner, 
143  Cal.  194,  76  Pac.  968. 

It  is  necessary  to  have  a  proceeding  of 
""office  found'*  before  title  to  escheated  lands 
can  revest  in  the  sovereign. 

People  ex  rel.  Atty.  Gen.  ▼.  Roach,  76 
Cal.  294,  18  Pac.  407;  Re  Miner,  supra; 
Wilbur  V.  Tobey,  16  Pick.  180;  Doe  ex  dem. 
Hayne  v.  Redfem,  12  East,  96;  Hall  v.  Git- 
tings,  2  Harr.  &  J.  125;  Wallahan  v.  In- 
gersoll,  11:7  111.  123,  7  N.  E.  620;  Jackson 
«z  dem.  Smith  v.  Adams,  7  Wend.  367 ;  Peo- 
ple V.  Folsom,  6  Cal.  379 ;  Peterkin  v.  Inloes, 
4  Md.  175;  University  of  North  Carolina  v. 
Harrison,  90  N.  C.  385;  Catham  v.  State, 
2  Head,  653;  People  v.  Fulton  F.  Ins.  Co.  25 
Wend.  218;  Hammond  v.  Inloes,  4  Md.  138; 
Wiederanders  v.  State,  64  Tex.  133;  Hamil- ' 


ton  V.  Brown,  161  U.  S.  261,  40  L.  ed.  094, 
16  Sup.  Ct.  Rep.  585. 

The  territorial  act  defining  the  jurisdic- 
tion of  the  probate  court  did  not  cover  es- 
cheats. 

Stewart  v.  Lohr,  1  Wash.  343,  22  Am.  St. 
Rep.  150,  25  Pac.  457 ;  Re  Alfstad,  27  Wash. 
176,  67  Pac.  593;  Re  Belt,  29  Wash.  540,  92 
Am.  St.  Rep.  916,  70  Pac.  74;  Harris  y. 
M'Kee,  4  Mart.  N.  S.  485. 

The  proceedings  were  insufficient,  under 
the  territorial  laws,  to  give  jurisdiction. 

18  Cyc.  122. 

The  probate  proceedings  were  not  due 
process  of  law. 

8  Cyc.  1080;  Hamilton  v.  Brown,  161  U. 
S.  261,  40  L.  ed.  604,  16  Sup.  Ct.  Rep.  585. 

Mr.  Robert  H.  Evans  argued  the  cause, 
and,  with  Messrs.  Alfred  H.  Lundin  and 
John  F.  Murphy,  filed  a  brief  for  defendant 
in  error: 

So  far  as  the  original  complaint  is  con- 
cerned, jurisdiction  in  the  district  court  de- 
pended entirely  upon  the  diverse  citizenship 
of  the  parties. 

Hanford  v.  Davies,'  163  U.  S.  274,  41  L. 
ed.  157,  16  Sup.  Ct.  Rep.  1051. 

A  case  cannot  be  said  to  arise  under  the 
Constitution  of  the  United  States,  or  be  con- 
trolled by  Federal  statute,  unless  its  de- 
cision turns  upon  the  construction  to  be 
given  thereto. 

Empire  State-Idaho  Min.  &  Developing  Co. 
V.  Hanley,  205  U.  S.  226,  51  L.  ed.  779,  27 
Sup.  Ct.  Rep.  476. 

It  must  affirmatively  appear  from  plain- 
tiff's pleadings  that  the  case  is  one  substan- 
tially and  really  dependent  upon  the  con- 
struction to  be  given  the  particular  section 
of  the  Constitution  or  the  Federal  statute, 
and  this  must  be  asserted  by  plaintiff  as  an 
issue  of  fact  in  his  pleadings  in  logical  form, 
such  as  is  required  by  the  rules  of  good 
pleading. 

Omaha  Electric  Light  &  P.  Co.  v.  Omaha, 
230  U.  S.  123,  57  L.  ed.  1419,  33  Sup.  Ct. 
Rep.  974. 

Plaintiff  in  error,  by  electing  to  carry  his 
case  for  review  to  the  circuit  court  of  ap- 
peals, instead  of  directly  to  this  court,  if 
the  case  is  really  one  involving  the  Consti- 
tution of  the  United  States,  has  exhausted 
his  right  to  have  the  decision  of  the  dis- 
trict court  against  him  reviewed  on  appeal, 
and,  as  a  result  thereof,  this  court  is  with- 
out jurisdiction. 

Bois^  Artesian  Hot  k  Cold  Water  Co.  y. 
Bois4  City,  230  U.  S.  98,  57  L.  ed.  1409, 
33  Sup.  Ct.  Rep.  1003;  Macfadden  ▼.  United 
States,  213  U.  S.  291,  53  L.  ed.  801,  29  Sup. 
Ct.  Rep.  490. 

Congress  never  disapproved  any  of  the 
probate  acts  of  Washington  territory.  They 

tS9  U.  S. 


IflS. 


CHRISTIANSON  v.  KING  COUNTY. 


361,  382 


are  to  be   deemed   valid  unless  ao   disap- 
proYed. 

ClinUm  y.  Englebrecht,  13  Wall.  434,  20 
Ia,  ed.  659. 

The  claim  that  the  territorial  legisla- 
ture was  without  power  to  legislate  upon 
the  subject  of  escheats  is  based  upon  the 
restriction  that  no  law  should  be  passed 
interfering  with  the'  primary  disposal  of 
the  soil.  T)ie  county  •claims  that  this  re- 
striction has  no  possible  application  to  the 
<atse.  It  was  only  intended  by  Congress  to 
prerent  the  territorial  legislature  from 
passing  laws  interfering  with  the  authority 
of  Congress  to  direct  the  manner  in  which 
the  public  domain  of  the  United  States 
should  be  disposed  of  by  the  government. 

Oury  Y.  Goodwin,  3  Ariz,  255,  26  Pac. 
376;  Topeka  Commercial  Security  Co.  v. 
McPherson,  7  Okla.  332,  54  Pac.  489;  Crane 
Y.  Reeder,  21  Mich.  24,  4  Am.  Rep.  430. 

Congress  intended  to,  and  did,  leave  the 
subject-matter  of  escheat  to  the  several 
states  and  territories,  and  escheated  prop- 
erty must  go  where  the '  local  statutes  di- 
rect. 

Hamilton  v.  Brown,  101  U.  S.  256,  40 
Ix  ed.  691,  16  Sup.  Ct.  Rep.  585. 

The  supreme  court  of  Washington,  as 
well  as  the  local  Federal  courts,  have  rec- 
ognized the  validity  of  the  territorial  stat- 
utes of  1862,  and  the  power  of  the  territorial 
assembly  to  enact  laws  dealing  with  es- 
cheats. 

Territory  v.  Klee,  1  Wash.  183,  23  Pac. 
417;  Pacific  Bank  v.  Hannah,  23  C.  C.  A. 
522,  59  U.  S.  App.  457,  90  Fed.  72;  Re  Sul- 
livan, 48  Wash.  631,  94  Pac.  483,  05  Pac.  71. 

There  is  nothing  in  the  organic  act  to 
prevent  the  territorial  assembly  from  con- 
ferring jurisdiction  over  escheats  or  the 
distribution  of  estates  of  deceased  persons 
in  case  of  failure  of  kindred.  The  organic 
set  places  no  restriction  upon  the  territorial 
legislature  from  conferring  the  ordinary 
jurisdiction  and  powers  upon  its  probate 
courts. 

Ferris  v.  Higley,  20  Wall.  375,  22  L.  ed. 
383. 

Plaintiff  in  error  -  contends  that  before 
the  estate  could  be  escheated,  it  was  neces- 
sary, under  the  law,  for  the  public  authori- 
ties to  bring  some  proceeding  in  the  nature 
of  an  inquest  of  office,  or  office  found,  in 
some  court  other  than  the  probate  court. 
•Such  may  have  been  the  method  pursued 
st  common  law,  but  whether  this  or  some 
other  method  shall  be  resorted  to  in  this 
eountry  depends  wholly  upon  the  statutes  of 
the  particular  state  or  territory  where  the 
property  is  situated. 

Hamilton  v.  Brown,  supra. 

No  one.  can  claim  a  vested  right  before 
death  of  the  intestate  in  the  laws  controlling 
«0  li.  ed. 


the  descent  and  distribution  of  property, 
and  such  laws  and  regulations  are  subject, 
like  rules  of  the  common  law,  to  legislative 
change  at  any  time. 

Munn  V.  Hlinois,  94  U.  S.  113,  24  L.  ed. 
77. 

No  different  effect  can  be  given  to  the  de- 
crees of  probate  courts,  made  within  this 
jurisdiction,  from  that  given  to  the  de- 
crees of  other  courts  of  record.  Both  are 
conclusive  and  binding. 

Broderick's  Will  (Kieley  y.  McGlynn)  21 
Wall.  503,  22  L.  ed.  599. 

Such  effect  has  been  given  to  the  decrees 
of  the  probate  courts  of  the  state  of  Wash- 
ington by  the  supreme  court  of  the  state. 

Re  Ostlund,  67  Wash.  359,  135  Am.  St. 
Rep.  990,  106  Pac.  1116;  Magee  v.  Big 
Bend  Land  Co.  51  Wash.  406,  99  Pac.  16. 

Mr.  Justice  Hughes,  after  making  the 
foregoing  statement,  delivered  the  opinion 
of  the  court: 

The  motion  to  dismiss  must  be  denied.  It 
sufficiently  appears  from  the  amended  bill 
that  jurisdiction  did  not  depend  solely  upon 
the  citizenship  of  the  respective  [362]  par- 
ties, but  that  the  controversy  involved,  with 
other  questions,  the  construction  of  the  act 
of  Congress  prescribing  the  authority  of  the 
territorial  legislature.  In  this  view,  the  de- 
cision of  the  circuit  court  of  appeals  is  not 
final.  Vicksburg  v.  Henson,  231  U.  S.  259, 
267,  58  L.  ed.  209,  215,  34  Sup.  Ct.  Rep.  95. 

The  plaintiff  in  error  contends  that  the 
land  in  question  did  not  escheat  to  the  coun- 
ty of  King,  territory  of  Washington,  for  the 
reasons  (1)  that  the  territory  was  not  a 
sovereign,  but  a  municipal  corporation;  (2) 
that  the  organic  law  of  the  territory  con- 
veyed to  it  no  property  rights  of  the  United 
States;  (3)  that  the  act  of  the  territorial 
legislature  providing  for  escheat  to  counties 
was  forbidden  by  the  organic  law;  (4)  that 
this  legislative  act  was  invalid  because  its 
title  was  not  broad  enough  to  cover  the  sub- 
ject-matter; and  (5)  that  there  was  never 
any  office  found. 

There  is,  of  course,  no  dispute  as  to  the 
sovereignty  of  the  United  States  over  the 
territory  of  Washington,  or  as  to  the  con- 
sequent control  of  Congress.  As  an  organ- 
ized political  division,  the  territory  pos- 
sessed only  the  powers  which  Congress  had 
conferred,  and  hence  the  territorial  legis- 
lature could  not  provide  for  escheat  unless 
such  provision  was  within  the  granted  au- 
thority. Sere  v.  Pitot,  6  Cranch,  332,  337, 
3  L.  ed.  240,  241;  American  Ins.  Co.  v.  356 
Bales  of  Cotton,  1  Pet.  511,  543,  7  I*,  ed. 
242,  255 ;  First  Nat.  Bank  v.  Yankton  Coun- 
ty, 101  U.  S.  129,  133,  26  L.  ed.  1046,  1047. 
The  organic  act  (March  2,  1853,  10  Stat,  at 
L.   172,   175,  chap.  90,  Comp.   Stat.    191 3« 


362-366 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Temm, 


§§  3425,  3438;  see  Rev.  Stat.  §§  1851,  1924, 
Comp.  Stat.  1913,  f  3438)  provided  as  fol- 
lows: 

"Sec.  6.  •    •    •    That  the  legislative  power 
of  the  territory  shall  extend  to  all  rightful 
subjects  of  legislation  not  inconsistent  with 
the   Constitution  and   laws  of  the   United 
States.    But  no  law  shall  be  passed  interfer- 
ing with  the  primary  disposal  of  the  soil; 
no  tax  shall  be  imposed  upon  the  property 
of  the  United  States;   nor  shall  the  lands 
or  other  property  of  nonresidents  be  taxed 
higher  than  the  lands  or  other  property  of 
residents.  All  the  [363]  laws  passed  by  the 
legislative  assembly  shall  be  submitted  to 
the  Congress  of  the  United  States,  and,  if 
disapproved,  shall  be  null  and  of  no  effect: 
Provided,  That  nothing  in  this  act  shall  be 
construed  to  give  power  to  incorporate  a 
bank  or  any  institution  with  banking  pow- 
ers, or  to  borrow  money  in  the  name  of  the 
territory,  or  to  pledge  the  faith  of  the  people 
of  the  same  for  any  loan  whatever,  directly 
or    indirectly.      No    charter    granting    any 
privileges  of  making,  issuing,  or  putting  in- 
to circulation  any  notes  or  bills  in  the  like- 
ness  of   bank  notes,   or  any   bonds,   scrip, 
drafts,  bills  of  ^change,  or  obligations,  or 
granting  any  other  banking  powers  or  privi- 
leges, shall  be  passed  by  the  legislative  as- 
sembly; nor  shall  the  establishment  of  any 
branch  or  agency  of  any  such  corporation, 
derived  from  other  authority,  be  allowed  in 
said  territory;  nor  shall  said  legislative  as- 
sembly authorize  the  issue  of  any  obligation, 
scrip,  or  evidence  of  debt»  by  said  territory, 
in  any  mode  or  manner  whatever,  except 
certificates    for    service   to    said    territory. 
And  all  such  laws,  or  any  law  or  laws  incon- 
sistent with  the  provisions  of  this  act,  shall 
be  utterly  null  and  void.    And  all  taxes  shall 
be  equal  and  uniform;  and  no  distinctions 
shall  be  made  in  the  assessments  between 
different  kinds  of  property,  but  the  assess- 
ments shall  be  according  to  the  value  there- 
of.   To  avoid  improper  influences,  which  may 
result  from  intermixing  in  one  and  the  same 
act  such  things  as  have  no  proper  relation 
to  each  other,  every  law  shall  embrace  but 
one  object,  and  that  shall  be  expressed  in  the 
title." 

This  manifestly  was  not  a  grant  of  the 
property  of  the  United  States,  but  it  was 
an  authority  which  extended  to  "all  right- 
ful subjects*'  of  legislation  save  as  it  was 
limited  by  the  essential  requirement  of  con- 
formity to  the  Constitution  and  laws  of  the 
United  States  and  by  the  restrictions  im- 
posed. Tlie  prohibition  against  interference 
''with  the  primary  disposal  of  the  soil*'  de- 
fined a  limitation  which  had  been  established 
from  the  beginning  in  organizing  [364] 
territorial  governments.  This  provision 
was    found    in    the    ordinance    passed    by 


the  Congress  of  the  Confederation,  April 
23,  1784,  for  the  government  of  the 
Western  Territory  (Amer.  Cong.  Pub. 
Journals,  vol.  4,  1782-1788,  p.  379), 
and  it  was  re-enacted  in  the  supersed- 
ing ordinance  of  1787  (art.  4, 1  Stat,  at  L. 
52,  note).  It  was  incorporated  either  by  ap- 
propriate reference^  or  by  express  statement* 
in  the  organic  acts  of  the  territories,  and  It 
was  continued  in  substantially  the  same 
words  in  many  of  the  enabling  acts  under 
which  states  were  admitted  to  the  Union.  < 
For  example,  when  Wisconsin  was  admitted, 
it  was  stipulated  as  a  condition  (9  Stat,  at 
L.  68,  chap.  89 )  that  the  state  should  "never 
interfere  with  the  primary  disposal  of  the 
soil  within  the  same  by  the  United  States," 
— a  condition  which  had  its  exact  equivalent 
in  the  provision  of  other  enabling  acts  that 
the  states  should  "never  interfere  with  the 
primary  disposal  of  the  public  lands"  lying 
within  them  (Arkansas,  5  Stat,  at  L.  51, 
chap.  100;  Iowa,  Florida,  5  Stat,  at  L.  743, 
chap.  48 ;  California,  9  Stat,  at  L.  452,  chap. 
50).  The  restriction  had  reference  to  the 
disposition  of  the  public  lands  of  the  United 
States,  and  neither  as  to  state  nor  as  to 
territory  did  these  words  purport  to  limit 
the  legislative  power,  otherwise  duly  exer- 
cised, where  property  had  passed  into 
private  ownership  and  there  was  no  interfer- 
ence with  the  exclusive  authority  of  Con- 
gress in  dealing  with  the  public  domain. 
Carroll  ▼.  Safford.  3  How.  441,  461,  11  L.  ed. 
671,680;  Witherspoon  ▼.  Duncan,  4  Wall. 
210,  218,  18  L.  ed.  339,  342;  Van  Brocklin  ▼. 
Tennessee  (Van  Brocklin  v.  Anderson)  117 
U.  S.  151,  164,  163,  29  L.  ed.  845,  849,  850,  6 
Sup.  Ct.  Rep.  670;  [365]  Crane  v.  Reeder, 
21  Mich.  24,  74,  4  Am.  Rep.  430;  Oury  v. 
Goodwin,  3  Ariz.  255,  260,  26  Pac.  376;  To- 
peka  Commercial  Secur.  Co.  v.  McPherson,  7 
Okla.  332,  338-340,  64  Pac.  489.  So  far  as 
"the  primary  disposal  of  the  soil"  was  con- 
cerned, provision  for  escheat  on  the  death  of 

1  Territory  south  of  the  Ohio,  1  SUt.  st 
L.  123,  chap.  14;  Mississippi,  1  Stat,  at  Ia. 
549,  chap.  28;  Indiana,  2  Stat,  at  L.  68, 
chap.  41 ;  Michigan,  2  Stat,  at  L.  309,  chap. 
5;  Illinois,  2  Stat,  at  J>.  514,  chap.  13;  Ala- 
bama, 3  Stat,  at  L.  371,  chap.  59. 

s  £.  g.  Territory  of  Orleans,  2  Stat,  at  L. 
284,  chap.  38;  Missouri,  2  Stat,  at  L.  747, 
chap.  95;  Florida,  3  Stat,  at  L.  655,  chap. 
13;  Wisconsin,  5  Stat,  at  L.  13,  chap.  54; 
Iowa,  5  Stat,  at  L.  237,  chap.  96;  Oregon, 
9  Stat,  at  L.  325,  chap.  177:  Minnesota,  9 
Stat,  at  L.  405,  chap.  121;  New  Mexico, 
9  Stat,  at  L.  449,  chap.  49;  Utah,  9  SUt. 
at  L.  454,  chap.  51. 

SE.  g.  Missouri,  3  Stat,  at  L.  547,  chap. 
22;  Arkansas,  5  Stat,  at  L.  51,  chap.  100; 
Iowa,  Florida,  5  Stat,  at  L.  743,  chap.  48; 
California,  9  Stat,  at  !>.  452,  chap.  50; 
Wisconsin,  9  Stat,  at  L.  58,  chap.  89;  Kan* 
sas,  12  Stat  at  L.  127,  chap.  20. ' 

as9  u.  s. 


1916. 


CHKISTIANSOK  v.  KING  COUNTY. 


365-367 


as  owner  in  fee  without  beira  could  not  be 
deemed  to  be  an  interference,  whether  the 
proriaion  was  enacted  by  a  territory  or  by  a 
lUte. 

The  ecope  of  the  authority  conferred  upon 
territorial  governments  has  frequently  been 
described.    Subject  to  the  general  scheme  of 
local  government  defined  by  the  organic  act, 
and  the  special  provisions  it  contains,  and 
subject  also  to  the  right  of  Congress  "to  re- 
vise, alter,  and  revoke  at  its  discretion,"  the 
local  legislature  has  generally  been  intrusted 
''with  the  enactment  of  the  entire  system  of 
municipal  law."    Hombuckle  v.  Toombs,  18 
WalL  648,  655,  21  L.  ed.  906,  067.    "Right- 
ful subjects"  of  legislation,  except  as  other- 
wise provided,  included  all  those  Subjects 
upon  which  legislatures  had  been  accustomed 
to  act    Maynard  v.  Hill,  125  U.  S.  190,  204, 
31  L.  ed.  654,  656,  8  Sup.  Ct  Rep.  723 ;  Clin- 
ton Y.  Englebrecht,  13  WalL  434,  442,  20 
L  ed.  659,  C61;  Cope  v.  Cope,  137  U.  S.  682, 
684,  34  L.  ed.  832,  833,  11  Sup.  Ct.  Rep.  222; 
Walker  v.  New  Mexico  &  S.  P.  R.  Co.  165  U. 
8.  593,  604,  41  L.  ed.  837,  843,  17  Sup.  Ct. 
Rep.  421,  1  Am.  Neg.  Rep.  768.  Unquestion- 
ably, authority  was  granted  to  the  territory 
to  legislate  with  respect  to  the  devolution 
of  real  property  on  the  death  of  the  owner. 
Tlius  in  Cope  v.  Cope,  137  U.  S.  682,  684, 
34  L.  ed.  832,  833,  11  Sup.  Ct.  Rep.  222, 
where  the  validity  of  an  act  of  the  territori- 
al legislature  of  Utah  permitting  inheritance 
by  illegitimate  children  was  sustained,  it 
was  said  by  the  court,  after  referring  to  the 
restrictions  of  the  organic  act:     "With  the 
exceptions  noted  in  this  section,  the  power  of 
the  territorial  legislature  was  apparently  as 
plenary  as  that  of  the  legislature  of  a  state. 
Haynard  y.  Hill,  125  U.  S.  190,  204,  31  L. 
ed.*654,  656,  8  Sup.  Ct.  Rep.  723.    The  dis- 
tribution of  and  the  right  of  succession  to 
the  estates  of  deceased  persons  are  matters 
exclusively    of    state    cognizance,    and    are 
such  as  were  within  the  competence  of  the 
territorial   legislature  to   deal  with   as   it 
saw  fit,  in  the  absence  of  an  inhibition  by 
Congress."    Escheat   on    failure    [366]    of 
heirs  was  a  familiar  subject  of  legislation  in 
the  American  commonwealths.    The  rule  of 
the  common  law  in  this  respect,  as  in  others, 
was  subject  to  modification,  and  adaptation 
to  local  conditions  was  essentially  a  matter 
<if  legislative  policy.    In  the  case  of  the  ter- 
ritories. Congress  could  have  dealt  with  this 
subject  if  it  chose,  but  it  did  not  see  fit  to 
establish  a  rule  of  its  own.     The  matter, 
however,  remained  a  ''rightful  subject"  of 
legislation,  and  Congress  did  not  except  it 
from  the  broad  grant  of  legislative  power. 
Assuming  that  it  had  authority,  the  legis- 
lative assembly  of  the  territory  of  Washing- 
ton at  its  first  session  provided  in  its  article 
on  '^Descent  of  Real  Estate"  that  ''if  the  in- 
•0  Ii.  ed. 


testate  shall  leave  no  kindred,  his  estate 
shall  escheat  to  the  territory."  Statutes  of 
Washington  Territory  1854,  p.  306.  Similar 
provision  was  made  in  the  case  of  personal- 
ty. Id.  p.  308.  In  1860,  it  was  enacted  that 
if  the  intestate  should  leave  no  kindred  his 
real  estate  should  escheat  to  the  county  in 
which  it  was  situated,  and  his  personal  es- 
tate to  the  county  in  which  the  administra- 
tion was  had.  Washington  Laws  1859-60, 
pp.  222,  224.  These  provisions  were  re-en- 
acted in  the  ''probate  practice  act"  of  1863. 
Washington  Laws  1862-63,  pp.  262,  265.  By 
the  Code  of  1881,  the  estate,  on  failure  of 
heirs,  was  to  escheat  to  the  territory  "for 
the  support  of  the  common  schools"  in  the 
county  in  which  the  decedent  resided  or 
where  the  estate  was  situated.  Sec.  3302, 
Eighth.  It  is  significant  that  these  acts, 
thus  asserting  the  legislative  power  from 
the  time  of  the  organization  of  the  territory 
until  it  became  a  state,  were  never  disap- 
proved by  Congress. 

It  is  urged  that  to  sustain  the  legislative 
authority  to  enact  legislation  of  this  charac- 
ter would  be  contrary  to  the  principles  de- 
clared in  the  case  of  the  Church  of  Jesus 
Christ  of  L.  D.  S.  y.  United  States,  136  U. 
S.  1,  34  L.  ed.  478,  10  Sup.  Ct.  Rep.  702. 
But  this  contention  is  without  basis.  In 
that  case,  the  suit  was  brought  pursuant  to 
an  act  of  Congress,  and  it  was  pointed  out 
that  Congress  had  expressly  declared  in  the 
earlier  act  of  1862  that  all  real  [367]  estate 
acquired  by  the  corporation  contrary  to  its 
provisions  should  "be  forfeited  and  escheat 
to  the  United  States."  Id.  p.  47.  Our  at- 
tention is  also  directed  to  statements  in  the 
opinions  in  Williams  y.  Wilson,  Mart,  k  Y. 
248,  252,  and  Etheridge  v.  Doe,  18  Ala.  565, 
574,  but  neither  of  these  cases  involved  the 
question  of  the  validity  of  territorial  legis- 
lation for  escheat.  In  Territory  v.  Lee,  2 
Mont.  124,  6  Mor.  Min.  Rep.  248,  the  act 
of  the  territory  by  which  it  was  attempted 
to  forfeit  placer  mines  held  by  aliens  was  de- 
clared to  be  invalid,  but  the  controlling  con- 
sideration was  that  its  provisions  were  re- 
pugnant to  the  authority  and  action  of  Con- 
gress with  respect  to  the  disposition  of  the 
public  lands.  See  also  King  v.  Ware,  53 
Iowa,  97,  4  N.  W.  858,  860.  On  the  other 
hand,  in  Crane  v.  Reeder,  21  Mich.  24,  76,  4 
Am.  Rep.  450,  the  legislation  of  the  territory 
of  Michigan  providing  for  escheat  on  failure 
of  lawful  heirs  was  found  not  to  be  in  con- 
flict with  the  ordinance  of  1787  or  with  any 
act  of  Congress.  And,  so  far  as  the  question 
has  been  considered  with  regard  to  the  ter- 
ritory of  Washington,  the  authority  of  the 
legislature  has  been  upheld.  Pacific  Bank 
Y.  Hannah,  32  C.  C.  A.  522,  59  U.  S.  App. 
457,  90  Fed.  72,  79;  see  Territory  y.  Klee, 
1  Wash.  183,  188,  23  Pac  417. 


367-370 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Tbkm, 


It  is  also  objected  that  the  title  of  the 
act  here  involved  was  not  sufficient  under 
the  last  provision  of  §  6  of  the  organic  act 
above  quoted.  Rev.  Stat.  §  1924.  The  stat- 
ute under  which  the  proceeding  was  had  was 
entitled,  ''An  act  Defining  the  Jurisdiction 
and  Practice  in  the  Probate  Courts  of  Wash- 
ington Territory."  Washington  Laws  1862- 
63,  p.  193.  It  covered  the  whole  subject  of 
probate  practice,  of  wills,  of  descent,  and 
of  distribution.  We  are  of  the  opinion  that 
the  matter  of  escheat  for  failure  of  heirs 
did  have  "proper  relation''  to  the  other  mat- 
ters embraced  in  the  statute,  and  that  the 
object  was  adequately  expressed  in  the  title 
within  the  meaning  of  the  organic  law.  The 
objection  that  there  was  no  "office  found" 
is  not  substantial,  save  as  it  may  be  deemed 
to  [368]  raise  the  question  whether  there 
was  compliance  with  the  territorial  legisla- 
tion, which  we  shall  presently  consider.  If 
the  legislature  had  authority  to  establish  its 
rule  as  to  escheat,  it  was  also  competent  for 
it  suitably  to  provide  as  to  the  tribunal 
which  should  have  jurisdiction,  and  the  pro- 
cedure for  determining  whether  the  rule  was 
applicable  in  a  particular  case.  Hamilton  v. 
Brown,  161  U.  S.  256,  263,  40  L.  ed.  691, 
695,  16  Sup.  Ct.  Rep.  585. 

Concluding  that  escheat  in  the  case  of 
death  of  an  owner  without  heirs  was  a  right- 
ful subject  of  legislation  within  the  meaning 
of  the  organic  act, — ^not  inconsistent  with 
the  Constitution  and  laws  of  the  United 
States,  and  not  embraced  within  the  stated 
exceptions, — and  that  the  provision  in  the 
probate  practice  act  was  a  valid  exercise  of 
the  authority  thus  granted,  we  are  brought 
to  the  question  as  to  the  jurisdiction  of  the 
probate  court  to  enter  the  decree  set  forth 
in  the  amended  complaint,  and  as  to  the 
effect  of  that  decree. 

Section  9  of  the  organic  act  (10  Stat,  at 
L.  175,  chap.  90;  see  Rev.  Stat.  §  1907) 
provided  that  the  "judicial  power''  of  the 
territory  should  be  vested  "in  a  supreme 
court,  district  courts,  probate  courts,  and 
In  justices  of  the  peace,"  and  that  the  juris- 
diction of  these  courts,  including  the  probate 
courts,  should  be  "as  limited  by  law."  The 
territorial  legislature,  having  the  power  to 
define  the  jurisdiction  of  the  probate  courts, 
provided  in  the  act  which  was  in  force  at 
the  time  of  the  proceedings  in  question  that 
these  courts  should  have  original  jurisdic- 
tion within  their  respective  counties  over 
probate  proceedings,  the  granting  of  letters 
testamentary  and  of  administration,  and  the 
settlement  of  accounts  of  executors  and  ad- 
ministrators (probate  practice  act  of  Janu- 
ary 16,  1863,  9  3;  Washington  Laws  1862- 
63,  p.  199) .  On  qualification,  an  administra- 
tor was  entitled  to  tlie  immediate  possession 
of  the  real  estate  as  well  as  of  the  personal 
3S4 


estate  of  the  deceased,  and  to  receive  the 
rents  and  profits  until  the  estate  was  set- 
tled [369]  or  delivered  over  by  order  of  tlie 
probate  court  to  the  heirs  or  deviseed  ( id.  § 
165,  p.  228).  At  any  time  subsequent  to  the 
second  term  of  the  probate  court  after  the 
issue  of  letters,  any  heir  might  present  his. 
petition  to  the  court,  asking  for  his  share  of 
the  estate  (id.  §  309,  p.  256) ;  and  the  act 
contained  the  following  express  provisions 
for  distribution,  which  related  to  both  real 
and  personal  property:  "Sec.  317.  Upon 
the  settlement  of  the  accounts  of  the  execu- 
tor, or  administrator,  or  at  any  subsequent 
time,  upon  the  application  of  the  executor 
or  administrator,  or  any  heir,  devisee  or  leg- 
atee, the*  court  shall  proceed  to  distribute 
the  residue  of  the  estate,  if  any,  among  the 
persons  who  are  by  law  entitled. 

"Sec.  318.  In  the  decree  the  court  shall 
name  the  person  and  the  portion,  or  parts 
to  which  each  shall  be  entitled;  and  such 
persons  shall  have  the  right  to  demand  and 
recover  their  respective  shares  from  the 
executor  or  administrator,  or  any  person 
having  the  same  in  possession." 

Those  "by  law  entitled"  to  the  real  es- 
tate were  described  in  §  3401  (id.  pp.  201, 
262 ) ,  which  gave  the  order  of  taking  [370] 
according  to  relationship,  and  in  the  last 
paragraph  provided  for  escheat  to  the  coun- 
ty if  there  were  no  kindred.  It  does  not 
seem  to  be  disputed  that  under  this  act,  if 
proceedings  in  a  probate  court  were  properly 
initiated,  that  court  would  have  jurisdiction 
to  enter  a  decree  determining  the  interests 
of  heirs  and  distributing  the  real  estate  to 
those  of  the  kindred,  if  any,  who  were  found 
to  be  entitled  to  take  as  provided  in  this 
section.     This   jurisdiction    formerly   exer- 

iThis  section  provided: 

"Sec.  340.  When  any  person  shall  die 
seised  of  any  lands,  tenements,  or  heredita- 
ments, or  any  ri^ht  thereto,  or  entitled  to 
any  interest  therein,  in  fee  simple,  or  for  the 
life  of  another,  not  having  lawfully  devised 
the  same,  they  shall  descend,  subject  to  his 
debts,  as  follows: 

"1st.  In  equal  shares  to  his  children,  and 
to  the  issue  of  any  deceased  child,  by  right 
of  representation,  and  if  there  be  no  child 
of  the  intestate  living  at  the  time  of  his 
death,  his  estate  shall  descend  to  all  hla 
other  lineal  descendants;  and  if  all  the 
same  descendants  are  in  the  same  degree  of 
kindred  to  the  intestate,  they  shall  have 
the  estate  equally,  otherwise  they  shall  take 
according  to  representation. 

"2d.  If  he  shall  leave  no  issue,  his  estate 
shall  descend  to  his  father." 

(Then  follow  paragraphs  3d,  4th,  Sth, 
6th,  and  7th  with  respect  to  kindred  of 
different  decrees.) 

"8th.  If  the  intestate  shall  leave  no  kin- 
dred, his  estate  shall  escheat  to  the  county 
in  which  such  estate  may  be  situate." 

839  V.  8. 


ine.  CHRIBTIAN80N  y   KING  COUNTY.  370-371 

dMd  Irf  th«  probate  courts  of  tlie  territory  the  BBme  form  in  the  Code  of  18S1  (S  713). 

ku  been  cootiaued  in  the  luperior  courta  of  It  appeara  that  from  1863  to  tbe  year  19QT 

the  lUte,  litting  fn  probate.     Kern,  ft  Bal.  (aee  Rem.  ft  Bal.  Code,  S  13S6)   there  was 

Code  (Waih.)   Jg  1587  et  wq.     See  Stewart  no  proviaion  in  the  Uwe  of  either  the  terri- 

t.  Lobr,  1  Waah.  341,  342,  22  Am.  St.  Hep.  tory  or  the  aUt«  in  relation  to  escheat,  aave 

150,  23  Pac.  457 1   Balch  v.  Smith,  4  Wash,  thoae  found  in  the    probate   practice   acte; 

4>7,  500,  502,  30  Pac.  048;  Haielton  v.  Bo-  and  the  act  of  1907   did    not    dUturb    thtt 

gardui,  S  Wash.  102,  103,  3fi  Psc.  602;  Re  juriidictioa  of  the  court  which  had  the  ad- 

Snllivan,  48  Waah.  031,  S4  Pac.  483,  95  Pac.  miniHtration    of    the    estate.     Referring  to 

Tl;  Re  Oitlund,  57  Wash.  35S,  364,  366,  JS6  this,  it  is  sUtad  bj  tbe  district  judge  that 

Am.   St.   Rep.   B0O,   106  Pac.   1116.     Speak-  "the  probate  coutte  of  the  territory  and  tbe 

ag  of  the  essential  nature  of  this  proceed-  superior  eourU  of  the  state  have  unitorm- 

isg  for  distribution,  and  describing  the  dc-  If  assumed  jurisdiction  in  this  class  of  caaea, 

cree  If   rendered  upon   due   process  of  law  and  the  right  of  the  state  or  county  to  ap- 

u  flnal  and  conclusive,  the  court  said  in  the  pear  in  the  probate  proceeding  and  contest 

case  of  Re  Ostlund,  67  Wash.  359,  364,  366,  the   rights   of   other     clnimaute    has    been 

135  Am.  St.  Rep.  090,  106  Pac.  1116:     "Its  recognized  by  the  highest  court  of  the  sUte." 

nrj   object   and    purpose   is    to    judicially  168   Fed.   p.   706,    citing    Re    Sullivan,    48 

determine  who  takes  the  property  left  by  Waah.    631,    94    Fac.  483,  65  Pac.  71.     See 

the  deceased."     See  also  Alaska  Bkg.  k.  S.  also  Helm  t.  Johnson,  40  Wash.  420,  4^1, 

D.  Co.  T.  Noyes,  64  Wash.  672,  678,  117  Pac.  82  Pac.  402. 

4>2;  McDowell  v.. Beckham,  72  Wash.  224,  Deeming  it  to  be  clear  that  the  probate 
tt7,  130  Pac.  350;  Krohn  Y.  Birsch,  81  court  had  jurisdiction  to  declare  sn  escheat 
Wash.  222,  226,  142  Pac.  647.  But  it  U  and  to  distribute  the  real  property  to  the 
MBtended  that  the  county,  asserting  escheat,  county  when  it  was  found  thiit  the  intes- 
did  not  claim  as  successor  to  the  decedent;  tete  had  left  no  kindred  (probate  practice 
that  the  jurisdiction  of  the  probate  court  act  1H63,  |§  317,  318,  340,  Bth,  p.  262), 
ctaaed  as  soon  as  it  ascertained  that  there  [3Tt]  we  pass  to  the  remaining  question 
«ere  no  heirs,  and  that  it  had  no  power  to  with  respect  U>  the  proceedings  that  were  ac- 
deelare  the  escheat  and  decree  distribution  tually  taken  in  that  court  in  connection  with 
to  the  county.  We  cannot  accede  te  this  the  property  in  controversy.  It  is  objected 
view.  It  is  not  tlie  ease,  in  a  proper  sense,  that  the  petition  for  the  appointment  of  an 
of  an  attempt  to  determine  the  title  of  third  administrator  was  informal ;  that  it  did  not 
persons,  that  is,  of  adverse  claimants,  set  forth  the  jurisdictional  facts;  that  it 
Stewart  t.  Lohr,  1  Wash.  341,  342,  22  Am.  was  signed  by  Uie  persons  not  shown  to  liavc 
St  Rep.  160,  25  Pac.  457.  Tbe  provision  for  nny  interest  in  the  esUte,  and  asked  for  tbe 
escheat  to  the  county  in  case  the  intestate  appointment  of  another  "stranger;"  and 
left  no  kindred  was  a  part  of  the  scheme  of  that  hence  the  court  never  acquired  juris- 
distribution  defined  by  the  act,  and  we  can-  diction,  and  that  ite  appointment  of  the  ad- 
not  doubt  that  not  only  had  the  court  the  ministrator  and  its  subsequent  proceedings 
power  to  determine  the  interests  of  the  were  null  and  void.  But  it  is  not  disputed 
[S71J  heirs  in  the  real  estate  to  be  distribu-  that  the  real  property  was  witliin  the  coun- 
ted, but  it  likewise  had  the  power  to  deter-  ty.  The  owner,  a  resident  of  that  county, 
laine  whether  timers  were  heirs,  and  if  it  was  had  died.  The  order  of  appointment  re- 
found  that  there  were  none,  to  decree  dis-  cited  that  he  had  died  intestete.  As  m 
tribution  according  to  the  statute.  court  of  record  (id.  |  5,  p.  200)  having  ca- 
It  is  insisted  that  S  480  of  the  civil  prac-  paeity  to  administer,  ita  jurisdiction  over 
tiee  act  of  1834  (p.  218)  prescribed  the  the  subject— as  has  been  said  by  the  su- 
procedurc  in  relation  to  escheats;  that  is,  preme  court  of  the  state  of  Washington 
it  provided  for  tbe  filing  of  an  information  „iti,  reference  to  the  probate  court  of  the 
by  the  prosecuting  attorney  in  the  district  territory i— "carries  with  it  the  presump- 
._„.  „  .».  .„  ..,_.  ^j^^  ^^  ^^^  integrity  of  the  judgment^  the 
s  does  the  judgment  of  a  oourt  of 
jurisdiction."     Magee  v.   Big  Bend 

•Mill  mnnponded  to  !  480  of  Ih.  (omer  oot  roid,  uid,  not  bam;  to.d,  it  1.  not  .ob- 

;?..'5'    '.".'f    "f'.'r*",    T"    "r""    ~!        ITh.  refer.™.  I,  to  tb,  prob.t.  ooorl  of 

(I  472.  p.  »S) .    In  lb.  tlv.l  pmct.ce  not  of  ^,  ,.„i„„  „  a  a,|,ud  md.r  tb.  Cod. 

1883.  tbis  proTilion.  without  th.  referniM  ^[   iggj.    ^ut   iU   juri.dirtfon   »a.   not  M- 

to  McbMt.  wai  rantinunl  [)  61B.  Waihing-  Mntially  dilT.rent  from  tbat  of  th.  probata 

ton  Lawa  1862-83.  p.  192).  and  it  ia  found  in  court  under  the  Mrlier  probata  practica  act. 
•0  L.  ed.  *** 


372-374                    SUPREME  OOURT  OF  THE  UNITED  STATES.  Oor.  Xnoc, 

ject  to  collateral  attack.    Ibid.;  Grignon  t.  [374]  ROBERT  MOODT  k  SONS,  Apptt^ 

Astor,  2  How.  319,  339,  11  L.  ed.  283,  291;  v. 

Florentine  y.  Barton,  2  Wall.  210,  216,  17  CENTURY  SAYINGS  BANK. 

L.  ed.  783,  785;  Comatock  v.  Crawford,  3 

Wall.  396,  403,  18  L.  ed.  34,  37;  McNitt  T.  (See  S.  C.  Reporter's  ed.  374-382.) 

Turner,   16  Wall.  352,  366,  21  L.  ed.  341, 

348;  Veach  v.  Rice,  131  U.  S.  293,  314,  33  Appeal  —  to  oircnlt  court  of  appeals 

L.  ed.  163,  170,  9  Snp.  Ct.  Rep.  730;  Sim-  —  bankruptcy  case. 

mons  V.  Saul,   138  U.  S.  439,  457,  34  L.  1-  ^'hi*  appearance  of  the  mortgagees  in 

ed.    1054,    1062,    11    Sup.    Ct.    Rep.    360;  ^V^  ^  notice  of  the  petition  of   the 

A    -D             Au      no      »•  1           OA            aa  mortgagor's  trustees  m  bankruptcy  for  the 

4    Bacon,    Abr.    96;    Pick    v.    Strong,    26  marsKaling  of  assets,  the  sale  of  the  encum- 

Minn.  303,  3  N.  W.  697;  Morgan  v.  Locke,  bered  property,  and  the  application  of  the 

28  La.  Ann.  806 ;  Riley  v.  McCord,  24  Mo.  proceeas  to  the  payment  of  all  liens  thereon, 
265.    It  appears  that  subsequently  the  pro-  ^^^  *^«ir  assertion  of  their  conflicting  rishts 

bate  court   Iter  opportunity  had  b^n  af-  jir^^j  rvH^V.:  rS*^.^  A 

forded  to  discover  [373]  heirs,  entertained  proceeds,  was  the  equivalent  of  ui  affirma- 

a  petition  of  the  administrator  for  final  ac-  tive  intervention,  and,  when  taken  in  eon- 

dount  and  distribution.  The  statutory  notice  nection  with  the  trustees'  petition,  brought 

(probate  practice  act  1863,  §  319)  was  pub-  ^^  ^^«  bankruptcy  proceedings  a  "contro- 

...    J       J         XL        A         J       Au               J  versy"  over  which  the  circuit  court  of  ap- 

lished  and  on  the  return  day  the  proceed-  ,J  ^^^  ^^3^^^  ^     ^^  bankrupt  act  S 

mg  was  duly  continued,  and,  on  hearing,  the  J^jy  j^  ^393  (39  stat.  at  L.  644,  chap.  641, 

decree  was  entered  settling  the  account,  find-  Comp.  Stat.  1013,  §  1229),  §  24,  with  the 

ing  that  there  were  no  heirs,  and  directing  same  appellate  jurisdiction  which,  under  the 

distribution    of    the    real  property,  as  de-  Judicial  Code,  §  128,  it  possesses  in  other 

scribed,  to  the  county  of  King.     This  pro-  f**^'  ^.                         .         ,       ^  «          ™ 

J.                        *•  111.  •              -D    /\-Ai     J  f^<>'  other  cases,  see  Appeal  and  Error,  III. 

ceedmg  was  essentially  m  rem.  Re  Ostlund,  c,  in  Digest  Sup.  Ct.  1008.] 

supra;  Alaska  Bkg.  &  8.  D.  Co.  t.  Noyes,  Marshaling  assets  ~  homestead  ~  walT- 

64  Wash.  672,  676,  117  Pac.  492;  McDowell  er. 

V.  Beckham,  72  Wash.  224,  227,  130  Pac.  ^  ^' /?^® 'i^^*  **^.*°^i!!^;  *^*  P"^ 
350;  Krohn  v.  Hirsch,  81  Wash.  222,  226,  I'ZL^''  l!!^' 1  ^^^O.  under  which  a 
1^0  T>  aAf  rj,  4.  4,  M  AX.  homestead,  even  when  validly  mortgaged, 
142  Pac.  647.  It  was  competent  for  the  may  be  sold  "only  for  a  deficiency  r^S^ 
court  to  inquire  whether  there  were  heirs,  ing  after  exhausting  all  other  property*' 
and,  if  there  were  such,  to  determine  who  covered  by  such  mortgage,  is  not  stricuy 
were  entitled  to  teke  according  to  the  order  Personal  to  the  mortgagors,  but  may  be  as- 
prescribed  by  the  statute,  and  also.  If  it  was  f^^  ^^  a  junior  mortgagee  in  a  proceed- 
;,.,./,  V  •  *  1  Av  ing"  to  marshal  assets  as  to  the  varions  moit- 
found  that  there  were  no  heirs,  to  make  the  ^^ge  liens,  notwithsUnding  the  subsequent 
distribution  to  the  county,  as  the  statute  waiver  bv  the  mortgagors  of  their  home- 
required.    It  is  apparent  that  there  was  no  stead  right. 

deprivation  of  property  without  due  process  ^^D^g^Jt^^SupV^Ct.  Toos.*"*"*""^  ^^^  *" 

of  law.    The  court,  after  appropriate  notice, 

did  determine  that  there  were  no  heirs,  and  r^^    7q  1 

its    decree,    being    the    act  of  a  court  of 

competent  jurisdiction  under  a  valid  stat-  ^^^  November  10  and  11,  1916.    Decided 

ute,  bound  all  the  world,  including  the  plain-  December  13    1916. 

tiff  in  error.    It  cannot  be  regarded  as  open 

to  attack  in  this  action.    Grignon  v.  Astor,  .   t>t>-b»at   *         xv     tt  'a  j  ox  1.      n>i      sx 

o  XT        910   oon   11  T      A  OQQ  001 .  T?i«,.««  A  PPEAL  from  the  United  States  Circuit 

2HOW.310   339   n  L  ed  283  291;  Floren.  ^  ^^^  ^^                  ^^^  ^^^ 

«T  ;c°"p'*°'.^„^*"w^'^'/?a"-  n-  't  cuit  to  review  a  decree  which  rfveri^d  » 

783    785;   Caujo  le  y    Ferr.«    (Caujolle  v.  ^^^^  ^^  ^^^  ^.^^^.^  ^^^  ^^^  ^^ 

^o    nL    T"  ^-n  ',^-  ;          i,f^      \'  «"»  Di"*"'*  <>«  !»*•.  apportioning  the  pro- 

612;  Broderick's  Will  (Kieley  v.  McGlynn)    '    *^^ ^  *^ 

21  Wall.  603,  22  L.  ed.  699;  Simmons  v.  NoTE.-On  appellate  jurisdiction  of  Fed- 
Saul,  138  U.  8.  439,  457,  34  L.  ed.  1054,  1062,  gy^j  Supreme  Court  over  circuit  courts  of 
11  Sup.  Ct.  Rep.  369;  Goodrich  v.  Ferris,  appeals— see  notes  to  Bagley  v.  General  Fir« 
214  U.  S.  71,  80,  81,  53  L.  ed.  914,  918,  919,  Extinguisher  Co.  53  L.  ed.  U.  S.  605:  and 

29  Sup.  Ct.  Rep.  580.  St.  Anthony's  Church  v.  Pennsylvania  K. 
As,  in  this  view,  the   judgment    of    the  Co.  69  L.  ed.  U.  S.  1119. 

court  below  must  be  affirmed,  we  do  not  find  ^n  appellate  jurisdiction  of  Federal  Su- 

,.                     .            'J      ▲!.            A*        xu  x  preme  Court  in  bankruptcy  cases — see  note 

it  necessary  to  consider  the  questions  that  P^  j^^^^  ^   g^^^^  g^  ^   ^   g   ^^3 

have  been  argued  with  respect  to  the  ap-  q^  marshaling  assets  for  benefit  of  mori- 

plication  of  the  statute  of  limitationa  gi^^r— see  note  to   Newby  v.   Norton,   47 

Judgment  affirmed.  L.ILA.(N.S.)    302. 

SSd  tS9  U.  8. 


uu. 


UOODT  V.  CBNTUBT  SAT.  BANK. 


ceeda  of  the  Hte  of  a  b^nkrupt'i  encumbered 
propertj.    Affirmed. 

See  same  case  below,  120  C.  C.  A.  49B, 
a»  Fed.  77S. 
Tfae  twcte  are  atated  in  the  opinion. 
Hr.  S.  F.  Proatjr  argued  the  cause,  and, 
with  Meiara.  George  F.  Haid  and  NewUrn 
P.  Willia,  filed  a  brief  for  appellanU: 

The  homcfltead  waj  »  defeasible  right  in 
the  owner  of  tha  propertj,  and  it  remained 
hotneatead  jiut  ao  long  as  the  beneficiaries 
(the  familj)  desired  to  continue  It  as  such. 
Anj  act,  therefore,  which  destroyed  tha 
homestead  charactsr  of  th«  propertj,  also 
radarad  inapplkable  the  statutory  provl- 
siaa  with  reference  thereto.  So,  ahandon- 
■lent  bj  the  selection  of  another  homestead, 
a  conTc^ane*  of  the  absolute  fee  bj  the 
bnslMnd  and  wife,  or  a  waiver  in  writing 
of  the  homestead  by  husband  and  wife, 
would  place  the  property  in  the  same  con- 
dition as  other  non -homestead  property. 

Davia,  M.  ft  Co.  v.  Kelley,  14  Iowa,  623; 
Godfrey  v.  Thornton,  U  Wis.  683,  1  N.  W. 
»2. 

The  statute  undoubtedly  was  enacted  tor 
the  benefit  of  the  owner  of  the  homestead, 
aad,  like  other  proTisiona  of  law,  may  be 
waived  hy  him. 

Dilger  V.  Palmer,  60  Iowa,  121,  10  N.  W. 
763,  11  N.  W.  134. 

The  supreme  court  of  Iowa  held  in  the 
eaae  of  Furman  v.  Dewell,  3E  Iowa,  170, 
that  where  a.  judgment  debtor  moved  from 
one  parcel  of  land  to  another  after  the 
docketing  of  the  judgment,  but  both  of 
which  parcels  he  owned  before,  the  lien  was 
enforceable  against  the  old  homestead  only. 
The  appellee  in  the  present  case  is  in  no 
position  to  assert  any  exemption  which 
might  at  one  time  hare  existed  with  ref- 
erence to  the  homestead  property,  because 
its  rights  are  no  greater  or  stronger  than 
would  be  those  of  a  purchaser  ol  the  home- 
atcad. 

Barktf  t.  Hollins,  30  Iowa,  413. 
It  was  not  within  the  power  ol  the  owner 
either  to  convey  or  otherwise  confer  upon  a 
third  person  any  of  the  rights  acquired  by 
him  under  the  statute,  lite  rights  so  con- 
ferred were  purely  personal.  The  statute 
does  not  pretend  to  create  an  estate,  but 
■imply  attempts  to  confer  upon  the  owner 
an  axanptloa.  Bums  v.  Eeas,  21  Iowa, 
250)  or  a  valuable  right  (Sayers  r.  Child- 
«rs,  112  Iowa,  680,  84  N.  W.  038),  for  the 
purpose  of  securing  to  him  a  place  of 
abode  safe  from  eviction  by  his  creditors. 
Where  a  mortgage  is  executed  on  the 
homestead  and  other  real  estate,  and,  be- 
fore foreclosure,  the  mortgagor  sells  and 
eotiTeys  the  other  real  estate  and  a  part 
of  the  homestead  to  others,  he  cannot  in- 
«t  lb  ed.  E 


slet,  in  a  foreclosure  proceeding,  that  the 
property  so  sold  and  conveyed  by  him  shall 
be  first  exhausted  before  that  part  of  the 
homestead  which  he  retains  ihail  be  sold 
to  pay  the  mortgage  debt  The  words 
"other  property"  in  said  section  mnst  be 
limited  to  proper^  which  belongs  to  the 
mortgagor  at  the  time  of  foreclosure. 

Dilger  v.  Palmer,  60  Iowa,  117,  10  N.  W. 
763.  14  N.  W.  134. 

Under  the  doctrine  of  this  ease  it  must 
be  held  that  the  Iowa  court  recogniwd  the 
construction  for  which  we  contend,  that  the 
status  of  the  property  at  the  time  of  the 
sale  determines  the  rights  and  liabilities  of 
the  parties,  and  it  at  that  time  all  of  the 
property  subject  to  the  mortgage  is  non- 
exempt  property,  then  the  whole  of  it  may 
be  sold,  regardless  of  the  statute. 

If  none  bf  the  property  of  the  bankrupt 
came  within  the  provisions  of  the  Iowa  stat- 
ute, the  case  was  one  for  the  application 
of  the  equitable  doctrine  of  marshaling 
assets;  and,  as  between  Johnson  and  Moody, 
Moody  would  have  a  right  to  first  require 
the  exhausting  of  the  property  on  which 
homestead  formerly  existed  by  the  Johnson 
mortgage  before  resorting  to  the  fund  or 
property  upon  which  they  had  a  common  Hen. 
'  Pom.  Eq.  Jur.  3d  ed.  |  306;  Re  Hobson, 
81  Iowa,  3B2,  11  L.RJl.  266,  40  N.  W.  1005. 

The  right  to  marshal  assets  is  not  a 
fixed  rl^t,  and  is,  therefore,  more  or  lesa 
shifting,  to  adapt  itself  to  subsequent  as 
well  as  to  prior  equities. 

Green  *.  Rsmtge,  18  Ohio,  428,  SI  Am. 
Dec.  468;  Richards  v.  Cowles,  106  Iowa, 
741,  76  N.  W.  04B. 

The  court  of  appeals  was  without  juris- 
diction to  consider  the  case  upon  an  appeal, 

Thompson  t.  Mauzy,  BS  C.  C.  A.  467, 
174  Fed.  814;  Snow  t.  Dalton,  122  C.  C.  A. 
101,  203  Fed.  846;  First  Nat.  Bank  v. 
Chicago  Title  *  T.  Co.  108  U.  S.  280,  2B1, 
40  L.  ed.  1051,  1066,  26  Sup.  Ct.  Rep.  603; 
Barto  T.  Stewart,  21  Wash.  606,  GB  Pac. 
480;  Re  Whitener,  44  C.  C.  A.  434,  105  Fed. 
186;  Holder  v.  Stratton,  J91  U.  6.  115,  48 
L.  ed.  116,  24  Sup.  Ct.  Bep.  45;  Wynkoop, 
H.  C.  Co.  v.  Gaines,  227  U.  8.  4,  S,  67  L.  ed. 
3B1,  3S3,  33  Sup.  Ct.  Bep.  214;  TefTt,  W.  t 
Co.  V.  Munsuri,  222  U.  S.  114,  120,  66  L. 
ed.  118,  120,  32  Sup.  Ct  Rep.  67;  Be 
Mueller,  68  C.  a  A.  34S,  135  Fed.  714. 

Mr.  William  O.  Harvlson  argued  the 
cause,  and,  with  Messrs.  Horatio  F.  Dale 
and  Thomas  F.  Stevenson,  filed  a  brief  for 
appellee ; 

The  bank's  right  of  appeal  to  the  dr- 
cuit  court  of  appeals  from  the  order  of  the 
district  court  in  this  case  is  allowed  under 
the  court  of  appeals  act  of  March  3,  18B1. 

Be  Irving,  224  U.  S.  183,  66  L.  ed.  726, 
2  %%1 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Twmm, 


32  Sup.  Ct.  Rep.  446;  Knapp  v.  Milwaukee 
TruBt  Ck>.  216  U.  8.  545,  54  L.  ed.  610, 
30  Sup.  Ct.  Rep.  412;  Coder  v.  Aria,  213 
U.  S.  223,  53  L.  ed.  772,  20  Sup.  Ct.  Rep. 
436,  16  Ann.  Caa.  1008;  First  Nat.  Bank 
y.  Chicago  Title  &  T.  Co.  198  U.  S.  280, 
40  L.  ed.  1051,  25  Sup.  Ct.  Rep.  603; 
Files  V.  Brown,  59  C.  C.  A.  403,  124  Fed. 
133;  Re  Friend,  67  C.  C.  A.  500,  134  Fed. 
778;  Martin  v.  Globe  Bank  &  T.  Co.  119 
C.  C.  A.  363,  201  Fed.  31;  Rode  &  Horn 
▼:  Phipps,  115  C.  C.  A.  316,  195  Fed.  414; 
Re  Mueller,  68  C.  C.  A.  349,  135  Fed.  711; 
Brady  v.  Bernard,  95  C.  C.  A.  656,  170 
Fed.  576;  Morehouse  v.  Pacific  Hardware 
ft  Steel  Co.  100  C.  C.  A.  647,  177  Fed.  337. 

Such  right  of  appeal  is  also  allowed  by  § 
24a  of  the  bankrupt  act  of  1898. 

Hobbs  y.  Head  &  D.  Co.  231  U.  S.  692, 

58  L.  ed.  440,  34  Sup.  Ct.  Rep.  253 ;  Lazarus 
y.  Prentice,  234  U.  S.  263,  58  L.  ed.  1305, 
34  Sup.  Ct.  Rep.  851;  Greey  y.  Dockendorflf, 
231  U.  S.  513,  58  L.  ed.  330,  34  Sup.  a. 
Rep.  166;  Houghton  y.  Burden,  228  U.  S. 
161,  57  L.  ed.  780,  33  Sup.  Ct.  Rep.  491; 
Re  Loying,  224  U.  S.  183,  56  L.  ed.  725, 
32  Sup.  Ct.  Rep.  446;  Tefft,  W.  &  Co.  y. 
Munsuri,  222  U.  S.  114,  56  L.  ed.  118,  32 
Sup.  Ct.  Rep.  67 ;  Knapp  y.  Milwaukee  Trust 
Co.  216  U.  S.  545,  54  L.  ed.  610,  30  Sup. 
Ct.  Rep.  412;  Coder  y.  Arts,  213  U.  S. 
223,  53  L.  ed.  772,  29  Sup.  Ct.  Rep.  436, 
16  Ann.  Cas.  1008;  First  Nat.  Bank  y. 
Chicago  Title  &  T.  Co.  198  U.  S.  280,  49 
L.  ed.  1051,  25  Sup.  Ct.  Rep.  693;  Hewit 
y.  Berlin  Mach.  Works,  194  U.  S.  296,  48 
L.  ed.  986,  24  Sup.  Ct.  Rep.  690;  Triumph 
Electric  Co.  y.  Patterson,  127  C.  C.  A.  612, 
211  Fed.  244;  New  Hampshire  Say.  Bank 
T.  Vamer,  132  C.  C.  A.  631,  216  Fed.  721 ; 
Sterne  y.  Merchants'  Nat.  Bank,  133  C.  C. 
A.  66,  216  Fed.  862;  Thomas  y.  Woods,  26 
L.RJl.(N.S.)  1180,  97  C.  C.  A.  535,  173 
Fed.  585,  19  Ann.  Cas.  1080;  Files  y.  Brown, 

59  C.  C.  A.  403,  124  Fed.  133;  Re  Friend, 
67  C.  C.  A.  500,  134  Fed.  778;  Rode  & 
Horn  y.  Phipps,  115  C.  C.  A.  316,  195  Fed. 
414;  Barnes  y.  Pampel,  113  C.  C.  A.  81, 
192  Fed.  525;  Brady  y.  Bernard,  95  C.  C.  A. 
666,  170  Fed.  576;  Re  Mueller,  68  C.  C.  A. 
349,  136  Fed.  711;  Kirkpatrick  y.  Hames- 
berger,  118  C.  C.  A.  334,  199  Fed.  886; 
Thompson  y.  Mauzy,  98  C.  C.  A.  457,  174 
Fed.  611;  Re  J.  Jungmann,  108  C.  C.  A. 
380,  186  Fed.  302;  Morehouse  y.  Pacific 
Hardware  ft  Steel  Co.  100  C.  C.  A.  647, 
177  Fed.  337. 

Such  right  of  appeal  is  also  allowed  by 
S  25a  (3)  of  the  bankrupt  act  of  1898. 

Re  Loying,  224  U.  S.  183,  56  L.  ed.  725, 
32  Sup.  Ct.  Rep.  446;  Tefft,  W.  ft  Co.  y. 
Munsuri,  222  U.  S.  114,  56  L.  ed.  118,  32 
Sup.  Ct.  Rep.  67;  Coder  y.  Arts,  213  U.  S. 

sss 


223,  53  L.  ed.  772,  29  Sup.  Ct.  Rep.  436» 
16  Ann.  Cas.  1008. 

The  action  before  the  court  ia  not  a 
"proceeding  in  bankruptcy'*  proper.  It  ia  a 
''controversy  arising  in  bankruptcy  pro- 
ceedings," or  a  "controversy  arising  in  the 
settlement  of  the  estate  of  a  bankrupt."  The 
right  of  appeal  therein  is  allowed  as  in  the 
last  three  propositions  above  stated. 

Houghton  v.  Burden,  228  U.  S.  161,  67 
L.  ed.  780,  33  Sup.  Ct.  Rep.  491;  Tefft, 
W.  ft  Co.  y.  Munsuri,  222  U.  S.  114,  56  L. 
ed.  118,  32  Sup.  Ct.  Rep.  446;  Hewit  y. 
Berlin  Mach.  Works,  194  U.  S.  296,  48  L. 
ed.  986,  24  Sup.  Ct.  Rep.  690;  Files  y. 
Brown,  59  C.  C.  A.  403,  124  Fed.  133;  Re 
Friend,  67  C.  C.  A.  500,  134  Fed.  778. 

The  waiver  of  homestead  by  the  bankrupt 
and  his  wife  was  without  effect  as  against 
the  bank  and  its  rights  under  its  mortgage. 

1.  The  homestead  ordinarily  is  exempt 
from  judicial  sale,  and  in  this  case  consists 
of  40  acres. 

Re  Bailey,   176   Fed.  990. 

2.  The  homestead,  being  so  exempt,  did 
not  pass  to  the  trustees  by  virtue  of  the 
adjudication  of  bankruptcy. 

Ibid.;  Hull  y.  Dicks,  235  U.  S.  684,  50 
L.  ed.  372,  35  Sup.  Ct.  Rep.  152. 

The  homestead  was  liable  to  sale  in  pay- 
ment of  the  Johnson,  or  first,  mortgage,  but 
only  after  exhausting  the  remaining  920 
acres  covered  thereby.  The  920  acres  of 
non-homestead  land  having  sold  for  more 
than  enough  to  pay  the  Johnson  mortgage, 
the  excess  of  proceeds  of  the  920  acres  was 
properly  applied  upon  the  Moody,  or  second, 
mortgage.  This  left  the  homestead  40  acres 
subject  to  sale  under  the  bank's  mortgage 
only. 

Taylor  y.  Trulock,  59  Iowa,  558,  13  N.  W. 
661. 

By  executing  the  bank's  mortgage,  the 
bankrupt  and  his  wife,  for  a  valuable  con- 
sideration, conveyed  to,  or  waived,  their 
homestead  right  in  favor  of  the  bank.  The 
bank,  in  legal  effect,  became  a  purchaser, 
for  value,  of  the  homestead,  subject  to  tlie 
bankrupt's  right  to  redemption  only.  The 
bankrupt  had  no  power  to  subsequently 
again  convey  or  waive  the  homestead  to 
the  bank's  prejudice. 

Re  Gill,  79  Iowa,  296,  9  L.R.A.  126,  44  N. 
W.  553 ;  Central  Trust  Co.  v.  Stepanek,  138 
Iowa,  131,  15  L.R.A.(N.S.)  1025,  128  Am. 
St.  Rep.  175,  115  N.  W.  891;  Boggs  y. 
Douglass,  105  Iowa,  344,  75  N.  W.  185; 
Linscott  v.  Lamart,  46  Iowa,  312. 

The  bank  has  the  same  rights  under  its 
mortgage  upon  the  homestead,  and  aa 
against  Moody,  that  it  has  as  against  John- 
son and  against  the  bankrupt,  becauae 
Moody  has  no  right  in  the  homeatead,  either 


1915. 


MOODY  V.  CENITJRY  SAV.  BANK. 


37ft,   376 


as  a  secured  or  as  a  general  creditor.  Un- 
der its  mortgage,  tlie  bank  steps  into  the 
shoes  of,  or  is  subrogated  to  the  exemption 
rights  of,  the  bankrupt. 

Alley  y.  Bay,  9  Iowa,  &09;  Bolton  v. 
Obeme,  H.  &  Co,  79  Iowa,  278,  44  N.  W. 
547;  Redfield  v.  Stocker,  91  Iowa,  383^  59 
N.  W.  270;  Waugh  v.  Bridgeford,  69  Iowa, 
336,  28  N.  W.  626;  Re  Bailey,  176  Fed. 
090;   Linscott  v.  Lamart,  46  Iowa,  312. 

Equity  regards  the  substance,  not  the 
form.  In  fact,  the  bank  had  a  lien  on  one 
fund  only,  the  proceeds  of  the  homestead. 

11  Am.  &  Eng.  Enc.  Law,  2d  ed.  title, 
Equity,  184. 

Marshaling  of  assets  can  only  be  applied 
where  the  creditor  against  whom  the  rule 
is  invoked  has  two  or  more  funds  to  look 
to,  and  his  rights  will  not  be  prejudiced  by 
the  application  of  the  rule. 

Story,  £q.  Jur.  12th  ed.  §§  660,  642;  8 
Pom.  Eq.  Jur.  1905,  ed.  §  1414;  Re  Hobson, 
81  Iowa,  392,  11  L.R.A.  255,  46  N.  W.  1095 ; 
Cutler  V.  Ammon,  65  Iowa,  281,  21  N.  W. 
604;  Wolf  V.  Smith,  36  Iowa,  454;  Clarke 
T.  Bancroft,  13  Iowa,  320 ;  Dickson  v.  Chom, 
6  Iowa,  19,  71  Am.  Dec.  382;  Tollerton 
T.  Anderson,  108  Iowa,  217,  78  N.  W.  822; 
Wallin  V.  Murphy,  117  Iowa,  640,  91  N.  W. 
93(0;  Re  Bailey,  176  Fed.  990;  McArthur 
T.  Martin,  23  Minn.  74;  Marr  v.  Lewis,  31 
Ark.  203,  25  Am.  Rep.  553;  Dorr  v.  Shaw, 
4  Johns.  Ch.  17;  Evertson  v.  Booth,  19 
Johns.  486;  Woolcocks  v.  Hart,  1  Paige, 
Ch.  186;  Stevens  v.  Church,  41  Conn.  369; 
Shedd  &  Co.  v.  Bank  of  Brattleboro,  32 
Vt.  709;  Walker  v.  Covar,  2  S.  C.  16;  Den- 
ham  V.  Williams,  39  Ga.  312;  Calloway  v. 
People's  Bank,  54  Ga.  672;  Briggs  v.  Plan- 
ters' Bank,  Freem.  Ch.  (Miss.)  574;  Em- 
mons ▼.  Bradley,  56  Me.  333;  Herriman  v. 
Skillman,  33  Barb.  378;  Sweet  v.  Redhead, 
76  111.  374. 

Mr.  Justice  Van  Devanter  delivered  the 
opinion  of  the  court: 

The  facts  bearing  upon  the  questions  pre- 
sented by  his  appeal  are  tlicse:  On  his  vol- 
untary petition  Oscar  M.  Hartzell,  a  resident 
of  Madison  county,  Iowa,  was  adjudged  a 
bankrupt.  He  owned  960  acres  of  land  in 
that  county,  40  acres  of  which  he  and  his 
family  had  been  and  were  occupying  as  a 
homestead.  Three  mortgages  in  terms  cover- 
ing all  the  land  had  been  given  by  him, — 
the  first  to  Emma  Johnson,  the  second  to 
Moody  k  Son,  and  the  third  to  the  Century 
Savings  Bank.  His  wife  had  joined  in  the 
first  and  third,  but  not  in  the  second.  Aft- 
er he  was  adjudged  a  bankrupt,  he  and  his 
wife  executed  an  instrument  waiving  and 
surrendering  their  right  in  the  homestead, 
ai|d  authorizing  the  trustees  in  bankruptcy 
60  Ij.  ed. 


to  take  possession  and  dispose  of  the  same 
for  the  benefit  of  all  the  creditors.  At 
a  later  date  the  trustees  filed  in  the  bank- 
ruptcy proceeding  a  petition  asserting  title 
to  all  the  land,  reciting  the  existence  of  the 
mortgages  and  other  asserted  liens,  and 
praying  that  the  960  acres  be  sold  free  of 
all  liens,  that  the  proceeds  be  held  by  the 
trustees  subject  to  the  further  order  of  the 
court,  that  all  persons  asserting  liens  on 
any  part  of  the  land  be  required  to  set  them 
up  by  answer,  that  certain  of  the  asserted 
liens  be  declared  void,  and  that  as  to  the 
others  the  assets  be  marshaled.  Acting  up- 
on this  petition  the  court,  with  the  assent 
of  the  parties  in  interest,  directed  that  the 
land  be  sold  as  prayed,  that  all  liens  thereon 
be  transferred  to  the  proceeds,  and  that  the 
latter  be  held  by  the  trufttees  for  the  pay- 
ment of  whatever  liens  or  claims  might  be  es- 
tablished against  the  same.  The  lands  were 
sold,  all  liens  found  to  be  superior  to  the 
three  mortgages  were  paid  out  of  the  pro- 
ceeds, and  there  remained  a  balance  of  $54- 
264.77,  [376]  which,  although  $13,683.94  in 
excess  of  what  was  required  to  pay  the 
first  mortgage,  was  insufficient  to  pay 
it  and  either  of  the  others.  Of  this 
balance,  $8,000  arose  from  the  sale  of 
the  homestead.  Moody  &  Son  and  the 
Century  Savings  Bank,  both  appearing 
in  response  to  notice  of  the  trustees'  pe- 
tition, asserted  confiicting  rights  under 
their  respective  mortgages  to  a  part  of  the 
proceeds.  Although  conceding  that  the  first 
mortgage — ^that  to  Johnson— should  be  fully 
paid,  they  differed  widely  respecting  the 
disposition  of  the  proceeds  of  the  home- 
stead. Moody  &  Son  asserting  a  right 
to  have  the  same  applied  on  the  first 
mortgage,  and  to  receive  on  their  mort- 
gage whatever  remained  of  the  proceeds 
of  the  other  land,  and  the  bank  as- 
serting a  right  to  have  the  first  mortgage 
satisfied  from  the  proceeds  of  the  other  land, 
and  to  receive  on  its  mortgage  the  proceeds 
of  the  homestead.  Under  the  first  conten- 
tion Moody  &  Son  would  receive  $13,683.94 
and  the  bank  nothing,  while  imder  the  oth- 
er. Moody  &  Son  would  receive  $5,083.04 
and  the  bank  $8,000.  The  bankruptcy  court 
rejected  both  contentions  and  held  that  the 
proceeds  of  the  homestead  and  those  of  the 
other  land  should  be  proportionally  applied 
in  paying  the  first  mortgage,  that  the  bal- 
ance then  remaining  from  the  sale  of  the 
homestead,  being  $2,947.22,  should  be  paid 
on  the  bank's  mortgage,  and  that  the  balance 
from  the  sale  of  the  other  land,  being  ^10,- 
736.67,  should  be  paid  on  Moody  &  Son's 
mortgage.  A  decree  was  entered  accordingly 
and  the  bank  appealed  to  the  circuit  court 
of  appeals,  which,  after  overruling  a  motion 
challenging   its  jurisdiction^  sustained  the 


STf-Sn  SUPREME  COUKT  OF  THE  UNITED  STATES.  Oct.  TEUi, 

bulk's  contentitm,  and  reversed  the  decrei!  homestead  whpn  the  mortgages  were  givoi 
with  instructions  vhich  were  equivalent  and  up  to  the  time  of  the  walrer  before  men- 
dee  Chesapet^e  i,  P.  Teleph.  Co.  t.  Han-  tioned.  The  homeaUad  [378J  right  in  thU 
Ding,  ISe  U.  S.  Z3B,  840,  40  L.  ed.  1144,  114S,  land  was  a  creation  of  the  statutes  of  the 
2S  Sup.  Ct.  Rep.  BSl;  Metropolitan  Water  state,  and  therefore  to  determine  what  bear- 
Co.  V.  Kaw  Valley  Drainage  Dist.  223  U.  8.  ing  this  right  had  upon  the  validity  and  op- 
S19,  S23,  56  L.  ed.  S33,  G36,  32  Sup.  Ct.  Rep.  erafion  of  the  mortgages  «e  must  turn  to 
2461  to  directing  a  decree  giving  full  effect  those  statutes  and  the  decisions  of  the  au- 
to that  contention.  ]23  C.  C.  A.  SBC,  204  preme  court  of  the  state  construing  and  ap- 
Fed.  003;  126  C.  C.  A.  49B,  209  Fed.  77fi.  pljing  them.  The  sUtutei  are  found  in  the 
Moody  i.  Son  then  appealed  to  this  court.  Code  of  1BB7,  and  are  as  follows: 

[3TT]   Whether  the  circuit  court  of  ap-        "Sec.  2972.  The  homestead  of  every  fami- 

peala    rightly    sustained    this    jurisdiction  ly,  whether  owned  by  the  husband  or  wife, 

turns   upon   whether   this   is   one  of   those  is  exempt  from  judicial  sale,  where  there  ia 

"controversies   arising   in   bankruptcy   pro-  no  special  declaration  of  statute  to  the  con- 

ceedings"    over    which    the    circuit    courts  trary.    ,    .    . 

of  appeals  are  invested,  by  g  24a  of  the  "Sec.  2974.  No  conveyance  or  encum- 
bankruptcy  act,  with  the  same  appel-  brance  of  or  contract  to  convey  or  encumber 
late  jurisdiction  that  they  possess  in  the  homestead,  if  the  owner  is  married,  i* 
other  caaea  under  the  Judicial  Code,  valid,  unless  the  husband  and  wife  join  in 
I  188  (36  Stat,  at  L.  1133,  chap.  231,  the  execution  of  the  same  joint  instrument, 
Comp.  Stat.  1913.  g  1120),  or  is  a  mere  step  whether  the  homestead  is  exclusively  the 
In  bankruptcy  proceedings,  the  appellate  subject  of  the  contract  or  not,  but  such  cart- 
review  of  which  is  regulated  by  other  pro-  tracts  may  be  enforced  ai  to  real  estate 
visions  of  the  bankruptcy  act.  If  it  is  a  other  than  the  homestead  at  the  option  of 
controversy  arising  in  bankruptcy  proceed-  the  purchaser  or  encumbrancer.  .  .  . 
Ings,  the  jurisdiction  of  that  court  was  prop-  "Sec.  2976.  The  homestead  may  be  sold 
erly  invoked,  as  is  also  that  of  this  court,  on  execution  for  debts  contracted  prior  to 
We  entertain  no  doubt  that  it  is  such  a  con-  its  acquisition,  but  in  such  case  it  shall  not 
troversy.  It  has  every  attribute  of  a  suit  in  be  sold  except  to  supply  any  deficiency  ra- 
equity  for  the  marshaling  of  assets,  the  aale  maining  after  exhausting  the  other  property 
of  the  encumbered  property,  and  the  applica-  qf  the  debtor  liable  to  execution.  It  may 
tion  of  the  proceeds  to  the  liens  in  the  order  also  be  sold  tor  dehU  created  by  written 
and  mode  ultimately  fixed  by  the  decree,  contract,  executed  by  the  pers(His  having 
'I'ne,  it  was  begun  by  the  trustees,  and  not  'he  power  to  convey,  and  expressly  stipulat- 
by  an  adverse  claimant,  but  this  is  imma-  ing  that  It  is  liable  therefor,  but  then  only 
terial.  for  the  mortgagees,  who  claimed  ad-  for  a  deBcien<7  remaining  after  exhauating 
Tersely  to  the  trustees,  not  only  appeared  all  other  property  pledged  by  the  same  con- 
In  response  to  notice  of  the  trustees'  peti-  tract  for  the  payment  of  the  driit.  .  .  . 
tion,  but  asserted  their  mortgage  liens  and  "Sec.  2981.  The  owner  may,  from  time  to 
•ought  to  have  them  enforced  against  the  pro-  time,  change  the  limits  of  the  homestead  by 
eeeda  of  the  property  conformably  to  the  con-  changing  the  metes  and  bounds,  as  well  aa 
tentiona  before  stated.  This  was  the  eqniva-  th^  record  of  the  plat  and  description,  or 
lent  of  an  affirmative  intervention,  and,  v^caU  It,  but  such  changes  shall  not  preju- 
when  taken  in  connection  with  the  trust«cB'  jj^^  conveyances  or  liens  made  or  created 
petition,  brought  into  the  bankruptcy  pro-  p„viously  thereto,  and  no  such  change  of 
eeedlngs  a  controversy  which  was  quite  ^j,^  ^^^[^^  homestead,  made  without  the  oon- 
apart  from  the  ordina^  steps  in  such  pro-  ^^^^^  ^,  ^^^  j^^^^^^  ^^  „„^  ,1,^,1  ^^ 
ceedings  and  well  withm  the  letter  "ad  ^j,  „  ter  [379]  rights,  or  those  of  the  chil- 
T't   "oln's    wr^'nn'-J'J   ^    n««  ^•^-    The  new  hom.st^d,  to  the  extent  in 

iai.2 St^. 2!sr8: ^'5W:^t '» «- -"- ">« «'<! - '--" o- -""> 

Cd.  610,  613,  30  Sup.  Ct.  Rep.  412;  Tett,  W.  """^  '>*«''■  ^  ^^  ^  ^  ^.  ,  . 
4  Co.  V.  Munsuri,  222  U.  S.  114.  118,  66  L.  Counsel  are  agreed  that  under  these  stat- 
ed. 118,  119,  32  Sup.  Ct.  Rep.  87;  Houghton  "tes  the  mortgages  to  Johnson  and  the  bank, 
V.  Burden,  228  U.  S.  181,  185,  57  L.  ed.  780,  In  "h"'*  the  wife  joined,  became  valid  liens 
788,  33  Snp.  Ct.  Rep.  491;  Globe  Bank  &  T.  on  the  homestead  as  well  aa'on  the  other 
Co.  V.  Martin,  230  U.  S.  2B8,  206,  69  L.  ed.  land;  that  the  intervening  mortgage  to 
«83,  587,  35  Sup.  Ct.  Rep.  377.  Moody  &  Son,  in  which  the  wife  did  not  join. 
Coming  to  the  merits,  the  matter  for  de-  was  void  as  to  the  homestead,  and  became 
elsion  is  the  proper  application  or  dispcsi-  a  valid  lien  only  on  the  other  land;  that 
tton  of  the  proceeds  of  the  40  acres  which  this  mortgage  remsined  void  as  to  the  home- 
tfae  bankrupt  and  bis  family  occupied  aa  a  stead,  notwithstanding  the  subsequent  waiv- 

s^a  i»  V.  s. 


lOlff. 


MOODY  v.  CENTUBY  SAV.  BANK. 


879-381 


cr  of  the  homestead  right,  and  that  ita  in- 
Tmlidity  in  that  respect  could  be  asserted 
bj  the  bank  as  a  subsequent  mortgagee.  We 
tiierefore  come  to  the  provision  in  f  2076 
that  the  homestead,  even  where  validly 
mortgaged,  may  be  sold  "only  for  a  deficiency 
remaining  after  exhausting  all  other  prop* 
erty"  covered  by  the  same  mortgage. 
Whether  only  the  mortgagors  may  claim  the 
benefit  of  this  provision,  and  they  only 
while  they  retain  the  homestead,  is  the  real 
point  in  dispute.  Moody  &  8<m  insist  that 
it  merely  confers  on  the  mortgagors  a  per- 
sonal privilege  which  they  may  exercise  or 
waive,  as  they  choose;  that  in  this  instance 
the  privilege  was  surrendered  or  terminated 
when  the  homestead  right  was  waived,  and 
in  consequence  the  provision  has  no  bearing 
on  the  proper  application  or  disposition  of 
the  proceeds  of  either  the  homestead  or  the 
other  land.  The  bank,  on  the  other  hand, 
insists  that  the  right  to  have  this  provision 
followed  is  not  strictly  personal  to  the  mort- 
gagors, but  may  be  asserted  by  one  to  whom 
they  transfer  an  interest  in  the  homestead, 
such  as  a  subsequent  vendee  or  mortgagee, 
and  that  no  act  of  theirs,  done  after  the 
transfer,  can  prejudice  the  transferee  in  the 
exercise  of  this  right.  The  solution  of  the 
question  is  not  free  from  difficulty,  but  we 
are  persuaded,  as  was  the  circuit  court  of 
appeals,  that,  in  view  of  the  decision  of  the 
supreme  [380]  court  of  the  state  in  lin- 
soott  V.  Lamart,  48  Iowa,  312,  the  bank's 
contention  must  be  sustained. 

The  facts  in  that  case,  so  far  as 'now 
material,  were  these:  One  Ash  owned  71 
acres  of  land,  40  of  which  were  his  home- 
stead. He  and  his  wife  mortgaged  the  en- 
tire tract  to  Lamart.  Linscott  subsequently 
obtained  a  judgment  against  Ash  and  pur- 
chased one  half  of  the  tract  at  a  sale  under 
the  judgment.  Later  Ash  and  his  wife  sold 
and  conveyed  the  entire  tract  to  Lamart,  it 
being  understood  that  this  should  not  ex- 
tinguish the  mortgage.  Lamart  went  into 
possession  and  Linscott  brought  a  suit  to 
determine  the  rights  of  the  parties  in  the 
land.  Lamart  prevailed  and  the  supreme 
court  affirmed  the  decree,  saying:  "Ash  and 
his  wife  had  the  right  to  sell  and  convey 
the  homestead  to  Lamart,  and  he  has  tho 
right  to  hold  it  exempt  from  judicial  sale 
on  plaintiff's  judgment."  And,  after  hold- 
ing the  sale  under  the  judgment  void  be- 
cause it  included  part  of  the  homestead,  the 
court  further  said:  ''What,  then,  are  the 
rights  of  the  parties?  If  Ash  had  not  con- 
veyed to  Lamart,  upon  foreclosure  of  the 
mortgage,  the  homestead  could  only  "he  sold 
to  supply  the  deficiency  remaining  after  ex- 
hausting the  other  property'  included  in  the 
mortgage.  Lamart  paid  Ash  some  $1,400 
for  the  whole  tract,  being  more  than  twice 
80  L.  ed. 


the  amount  of  the  mortgage.  No  fraud  is 
diarged  or  shown,  and  as  he  had  the  right 
to  purchase  the  homestead  and  hold  it  as 
against  plaintiff's  judgment,  he  should  now 
have  the  right  to  have  the  proceeds  of  the 
land,  aside  from  the  homestead,  applied  in 
payment  of  his  mortgage,  to  the  exclusion  of 
junior  liens.  In  other  words,  it  would  bo 
inequitable  to  put  him  in  a  worse  position 
than  he  would  be  if  he  had  not  taken  the 
title  from  Ash.  The  plaintiff,  by  this  rule, 
is  left  in  precisely  the  same  position  he 
would  now  occupy  if  Ash  were  still  holding 
his  homestead,  and  Lamart  his  mortgage.'* 
Thus,  under  tilie  influence  of  the  provision 
in  8  2978,  it  was  ruled  [381]  that  the 
mortgage,  which  embraced  the  home- 
stead and  other  land,  could  be  satis- 
fied out  of  the  latter  to  the  exclusion 
of  a  junior  judgment  lien  embracing 
the  other  land,  but  not  the  homestead^ 
and  this  although  the  mortgagors  had 
sold  the  homestead  and  no  longer  had  any- 
right  therein.  This  decision  is  more  nearly 
in  point  than  any  other,  and  we  think  it 
shows  that  the  right  to  invoke  the  provi- 
sion in  §  2978  is  neither  strictly  personal 
to  the  mortgagors  nor  wholly  terminated  by 
their  waiver  of  the  homestead  right.  Moody 
k  Son  place  some  reliance  upon  Barker  v. 
BoUins,  30  Iowa,  412,  and  Dilger  v.  Palmer, 
80  Iowa,  117,  10  N.  W.  783,  14  N.  W.  134, 
although  conceding  that  the  cases  are  not 
closely  in  point.  We  think  they  are  without 
present  bearing.  In  the  former  a  purchaser 
of  a  mortgaged  homestead,  who  thereafter 
made  the  land  his  homestead,  claimed  that 
this  entitled  him  to  have  the  mortgage  sat- 
isfied from  other  unmortgaged  property  of 
the  mortgagor,  and  the  claim  was  denied, 
the  court  observing:  **Hi8  homestead  was 
not  within  the  contemplation  of  the  parties 
to  the  contract  sued  on.  The  creditor  might 
well  be  held  to  have  contracted  with  refer- 
ence to  all  the  phases  of  homestead  claimed 
by  his  debtor;  but  not  as  to  any  such  claim 
by  third  parties,  who  should  voluntarily 
purchase  the  property  with  full  knowledge 
of  the  encumbrance  upon  it.  They  cannot 
intrude  their  rights  upon  the  property  to  the 
prejudice  of  the  creditor."  In  the  other 
case  a  homestead  was  mortgaged  with  other 
land,  and  the  mortgagors  thereafter  sold 
the  latter  to  a  third  person,  but  retained 
the  former.  When  it  was  sought  to  fore- 
close the  mortgage,  the  mortgagors  claimed 
that  §  2978  entitled  them  to  have  the  mort- 
gage satisfied  from  the  nonhomestead  prop* 
erty,  which  they  had  sold,  and  the  claim 
was  rejected,  the  court  holding  that  by  their 
sale  of  the  nonhomestead  land  they  were 
estopped  from  insisting  that  it  constituted 
the  primary  fund  for  the  payment  of  th» 
mortgage. 

S41 


882^84 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  Tbim, 


[382]  Concluding,  as  we  do,  that  the 
Circuit  Court  of  Appeals  rightly  applied 
the  local  statutes  as  construed  bj  the  Su- 
preme Court  of  the  state,  its  decree  is  af- 
firmed. 


NORTHERN    PACIFIC    RAILWAY    COM- 
PANY,  Plff.  in  Err., 

V. 

P.  J.  CONCANNON  and  Wife.1 
(See  S.  C.  Reporter's  ed.  382-388.) 

Adverse  possession  —  of  railway  right 
of  way. 

1.  Adverse  possession  enjoyed  after  the 
passage  of  the  act  of  April  28,  1904  (33 
Stat,  at  L.  538,  chap.  1782),  confirming  con- 
veyances "hertofore  made"  of  portions  of 
the  Northern  Pacific  Railroad  Company's 
right  of  way  outside  the  200-foot  limit, 
cannot  be  considered  in  determining  whether 
the  possession  has  continued  long  enough 
to  ripen  into  title. 

(For  other  cases,  see  Adverse  Possession.  I. 
h,  In  Digest  Sup.  Ct.  1908.] 

Error  to  state  court  —  proper  Jadgment 

—  reversal  —  leaving  local  question 

open. 

2.  The  Federal  Supreme  Court,  when 
reversing  a  judgment  of  a  state  court  which 
erroneously  held  that  adverse  possession  en- 
joyed after  the  passage  of  the  act  of  April 
28,  1904  (33  Stat,  at  L.  538,  chap.  1782), 
confirming  conveyances  "heretofore  made" 
of  portions  of  the  Northern  Pacific  Rail- 
road Company's  right  of  way  outside  the 
200-foot  limit,  could  be  considered  in  deter- 
mining whether  possession  had  continued 
long  enough  to  ripen  into  title, — will  leave 
open  the  question  of  adverse  possession  as- 
serted to  have  been  completed  prior  to  the 

Sassage  of  that  act  which  the  state  court 
id  not  dispose  of  because  of  the  erroneous 
opinion  which  it  entertained  concerning  the 
meaning  of  that  act. 

[For  other  cases,  see  Appeal  and  Error,  IX.  e. 
in  Digest  Sup.  Ct.   1908.] 

[No.  87.] 

Argued  and  submitted  December  3,   1916. 
Decided  December  20,  1915. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Washington  to  review  a  judg- 
ment which  affirmed  a  judgment  of  the  Su- 
perior Court  of  Pierce  County,  in  that  state. 
In  favor  of  defendants  in  an  action  of  eject- 
ment. Reversed  and  remanded  for  further 
proceedings. 

^Stipulation  was  filed  in  Northern  P.  R. 
Co.  ▼.  Shade  and  Northern  P.  R.  Co.  v. 
Classen  [Nos.  88,  89]  that  they  should  abide 
the  event  of  this  case. 

Note. — On  adverse  possession  of  railroad 
right  of  wav — see  notes  to  Roberts  v.  Sioux 
City  &  P.  R.  Co.  2  L.R.A.(N.S.)  272;  and 
Dufin  V.  Ohio  River  R.  Co.  L.RJL1916B, 
S57. 


See  same  case  below,  76  Wash.  591,  136 
Pac.  652. 
The  facts  are  stated  in  the  opinion. 

Mr.  Charles  W.  Bnnn  argued  the  cause 
and  filed  a  brief  for  plaintiff  in  error. 

Mr.  'William  H.  Hayden  submitted  the 
cause  for  defendants  in  error. 

Mr.  Chief  Justice  White  delivered  the 
opinion  of  the  court : 

As  the  successor  to  the  rights  of  the 
Northern  Pacific  Railroad  Company,  the 
Railway  Company,  plaintiff  in  error,  sued 
to  recover  a  piece  of  land  alleged  to  be  with- 
in the  strip  400  feet  wide  granted  by  the  act 
of  Congress  to  the  former  company  as  a 
right  of  way.  13  Stat,  at  L.  365,  chap.  217. 
The  asserted  right  to  a  reversal  of  the  de- 
cree which  awarded  the  land  to  the  defend- 
ant is  based  upon  an  error  which  it  is  as- 
serted the  court  committed  in  interpreting 
an  act  of  Congress.  33  Stat,  at  L.  538,  chap. 
1782. 

To  at  once  recur  to  a  previous  ruling 
concerning  the  power  of  the  company  to  dis- 
pose of  land  embraced  in  the  grant  of  right 
of  way  which  undoubtedly  led  to  the  adop- 
tion of  the  act  of  Congress  referred  to,  and 
additionally  to  refer  to  a  decision  concern- 
ing the  significance  of  that  act,  rendered 
before  this  case  arose,  will  make  clear  the 
question  to  be  decided. 

In  Northern  P.  R.  Co.  v.  Townsend,  190 
U.  S.  267,  47  L.  ed.  1044,  23  Sup.  Ct.  Rep. 
671,  it  became  necessary  tc  determine  wheth- 
er title  by  adverse  possession  under  a  state 
law  could  be  acquired  to  any  portion  of  the 
railroad's  right  of  way.  Applying  the  prin- 
ciples announced  in  Northern  P.  R.  Co.  t. 
Smith,  171  U.  S.  261,  43  L.  ed.  158,  18  Sup. 
Ct.  Rep.  794,  it  was  held  that  as  the  Rail- 
road Company  to  which  the  right  of  way  was 
originally  granted  was  incapable  [384]  of 
conveying  any  part  of  the  400  feet  strip 
composing  its  right  of  way,  it  followed  that 
no  possession  adverse  to  the  company  could 
confer  title,  any  state  law  to  the  contrary 
notwithstanding.  About  a  year  after  thi)i  de- 
cision the  act  to  which  we  have  previously 
referred  was  adopted,  the  title  and  first  sec- 
tion reading  as  follows: 

An  Act  Validating  Certain  Conveyances  of 
the  Northern  Pacific  Railroad  Company 
and  the  Northern  Pacific  Railway  Com* 
pany. 

That  all  conveyances  heretofore  made  by 
the  Northern  Pacific  Railroad  Company  or 
b^  the  Northern  Pacific  Railway  Company, 
of  land  forming  a  part  of  the  right  of  way  of 
the  Northern  Pacific  Railroad,  granted  by 
the  government  by  any  act  of  Congress,  are 
hereby  legalized,  validated,  and  confirmed: 
Provided,   That  no   such   conveyance   shall 

2S9  U.  8. 


1915. 


NORTHERN  P.  R.  CO.  v.  CONCANNON. 


384-387 


hATe  effect  to  diminish  said  right  of  way  to 
a  less  width  than  one  hundred  feet  on  each 
side  of  the  center  of  the  main  track  of  the 
railroad  as  now  established  and  maintained. 

The  second  and  last  section  made  the  act 
operative  only  upon  acceptance  of  its  terms 
by  the  Northern  Pacific  Railway  Company. 

There  was  presented  in  Northern  P.  R. 
Co.  V.  Ely,  197  U.  S.  1,  40  L.  ed.  639,  25 
Sup.  Ct.  Kcp.  302,  the  question  whether  this 
statute  gave  validity  to  a  title  by  adverse 
possession  to  a  piece  of  land  outside  of  the 
200,  but  within  the  400,  feet  of  the  right 
of  way,  where  the  possession  relied  upon  was 
completed  before  the  act  was  adopted,  and 
therefore  was  adequate  at  that  time  under 
the  state  law  to  bar  the  title  of  the  com- 
pany. Although  the  statute  only  expressly 
embraced  "conveyances  heretofore  made,"  it 
was  decided  that,  in  view  of  its  remedial 
purposes,  its  provisions  were  applicable  to 
the  case  in  hand;  that  is,  it  was  held  that 
the  word  '"conveyance"  included  also  a  suf- 
ficient adverse  possession  completed  when 
the  act  was  passed. 

[385]  As  the  land  in  controversy  in  this 
case  is  within  the  400,  but  outside  the  200, 
feet,  the  court  below  was  right  in  concluding 
that  it  was  within  the  provisions  of  the  act 
if  they  were  otherwise  applicable.  In  deter- 
mining such  applicability,  as  it  was  found 
that  at  the  time  the  act  was  passed  the 
possession  of  the  defendant  had  not  existed 
for  a  sufficient  length  of  time  to  bar  the 
right  of  the  railroad,  the  court  came  to 
consider  whether  tlie  statute  authorized  the 
taking  into  view  of  adverse  possession  en- 
joyed after  the  passage  of  the  act.  An- 
swering this  inquiry  from  a  consideration 
not  only  of  the  text  of  the  act,  but  of  the 
ruling  in  Northern  P.  R.  Co.  v.  Ely,  supra, 
it  was  decided  that  the  statute  intended  to 
permit  the  consideration  of  such  subsequent 
possession,  and  therefore  the  title  by  pos- 
aession  of  the  defendant,  which  was  inade- 
quate considering  the  state  of  things  ex- 
isting at  the  time  of  the  passage  of  the 
statute,  was  decided  to  be  valid  as  against 
the  Railroad  Company,  in  consequence  of  the 
-effect  given  to  the  possession  after  the  pas- 
sage of  the  statute.  75  Wash.  691^  135  Pac. 
652. 

We  are  of  opinion  that  this  interpretation 
-of  the  act  is  inconsistent  with  its  text,  and 
was  erroneously  supposed  to  be  supported 
l>y  the  ruling  in  Northern  P.  R.  Co.  v.  Ely. 
We  say  it  is  inconsistent  with  its  text,  be- 
cause in  express  terms  the  validating  pow- 
der which  the  act  exerted  was  made  appli- 
cable only  to  "all  conveyances  heretofore 
made,"  and  nothing  in  the  context  lends 
itself  to  the  conclusion  that  Congress  con- 
templated conferring  on  the  Railway  Com- 
pany unlimited  power  in  the  future  to  dis- 
^0  li.  ed. 


pose  of  its  right  of  way,  or  to  give  the  right 
to  others  to  devest  the  railroad  of  the  title 
to  such  right  of  way  by  future  adverse  pos- 
session. And  this  meaning  of  the  act  is 
aptly  illustrated  by  its  title,  since  it  treats 
its  provisions  as  only  confirming  convey- 
ances theretofore  made,  and  not  as  confer- 
ring power  on  the  Railway  Company  to 
make  conveyances  of  its  right  of  way  for  the 
future. 

[386]  But  the  argument  is  that  although 
this  interpretation  may,  as  an  original  ques- 
tion, be  well  founded,  it  is  not  open  to  adopt 
it  consistently  with  the  ruling  in  the  Ely 
Case.  The  reasoning  is  this:  The  statute,  it 
is  said,  if  literally  interpreted,  only  relates 
to  conveyances,  and  not  to  adverse  posses- 
sion; but  as  adverse  possession  complete  at 
the  time  of  the  passage  of  the  act  was 
brought  within  its  scope  by  the  ruling  in 
the  Ely  Case,  therefore  the  statute  was  in 
that  case  interpreted  in  a  broad,  and  not  a 
literal,  sense.  Giving  to  the  statute  this 
significance,  the  argument  is  that  it  is  in- 
consistent to  now  hold  that  the  statute  does 
not  include  all  conveyances  and  all  posses- 
sion without  regard  to  whether  they  were 
made  or  perfected  before  or  after  the  pas- 
sage of  the  act.  But  this  fails  to  consider 
that  the  ruling  in  the  Ely  Case  related 
exclusively  to  a  possession  which  had  com- 
pletely ripened  at  the  time  of  the  passage 
of  the  act,  and  therefore  that  case  was  con- 
cerned only  with  the  subject  with  which  the 
statute  dealt;  that  is,  rights  hitherto  ac- 
quired, and  which  were  in  a  generic  sense 
within  the  remedy  which  the  statute  was 
intended  to  afford, — ^the  curing  of  infirmi- 
ties in  titles  which  had  become  complete 
prior  to  the  passage  of  the  act.  Indeed, 
the  opinion  in  the  Ely  Case  shows  that  the 
reasoning  by  which  it  came  to  pass  that  the 
word  ''conveyances"  in  the  statute  also  em- 
braced titles  by  possession  perfected  before 
the  passage  of  the  act  was  but  an  applica- 
tion of  the  familiar  rule  that  a  remedial 
statute,  where  it  is  reasonably  possible  to 
do  so,  must  be  interpreted  so  as  to  embrace 
the  remedies  which  it  was  obviously  intend- 
ed to  afford.  The  difference,  then,  between 
that  case  and  this,  is  that  which  exists  be- 
tween, on  the  one  hand,  interpreting  the 
words  of  the  statute  so  as  to  cause  them  to 
include  things  which  are  within  its  contem- 
plation, and,  on  the  other  hand,  adopting 
of  an  interpretation  which  would  destroy 
the  express  limitations  of  the  statute  and 
cause  it  to  accomplish  a  purpose  which  its 
text  plainly  demonstrates  it  was  not  in- 
tended to  reach. 

[387]  It  is  urged  that  even  if  it  be  found 
that  error  was  committed  in  interpreting 
the  statute,  nevertheless  the  judgment  be- 
low should  be  affirmed,  because  it  rests  not 
alone  upon*  the  mistakesi  intAX^TC^XAAXQii  ^\ 


887,  888 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  Tbim, 


the  itatute,  but  also  upon  an  independent 
state  ground  adequate  to  sustain  it;  that 
is,  a  finding  that  there  had  been  possession 
adequate  to  bar  the  right  of  the  Railway 
Compsny,  completed  before  the  adoption  of 
the  act.  We  are  of  opinion,  however,  that 
there  is  no  ground  upon  which  this  propo- 
sition can  rest  since  the  court  below,  after 
finding  that  the  defendsnt's  possession  be- 
fore the  act  had  not  been  for  a  suflScient 
time  to  bar  the  right  of  the  Railway  Com- 
pany, and  then  considering  whether  an  ade- 
qviate  lapse  of  time  would  not  result  from 
joining  to  the  possession  of  the  defendant 
the  prior  possession  of  other  persons  assert- 
ed to  be  predecessors  in  title  of  the  defend- 
ant, did  not  pass  upon  that  question.  On 
the  contrary,  the  court,  after  pointing  out 
difficulties  arising  from  what  it  considered 
to  be  infirmities  in  the  proof  concerning  the 
nature  and  character  of  the  possession  of 
the  alleged  predecessors  and  their  privity 
with  the  defendant,  held  that  it  was  unnec- 
essary to  solve  such  difficulties  because, 
under  the  statute,  the  defendant  could 
complete  the  time  necessary  to  bar  the  right 
of  the  Railway  Company  by  resorting  to 
possession  enjoyed  by  him  after  the  passage 
of  the  act. 

Although  from  these  considerations  it  re- 
sults that  our  duty  is  to  reverse  because  of 
the  erroneous  construction  given  to  the  act 
of  Congress,  and  which  was  the  sole  basis 
of  the  decision  below,  we  are  of  opinion  that 
the  order  of  reversal  should  not  preclude 
the  right  in  the  court  below  to  consider 
and  pass  upon,  in  the  light  of  the  statute 
as  correctly  construed,  the  question  of  ad- 
verse possession  asserted  to  have  been  com- 
pleted prior  to  the  passage  of  the  act,  which, 
as  we  have  seen,  the  court  did  not  dispose 
of  because  of  the  erroneous  opinion  which 
it  entertained  concerning  the  meaning  of 
the  act  of  Congress;  and  our  decree^  [388] 
therefore,  will  leave  that  question  open.  The 
issue  thus  left  open  involves  a  question 
arising  under  the  state  law  which  should 
be  passed  upon  primarily  by  the  state  court. 
In  saying  this,  however,  we  must  not  be 
considered  as  holding  that  ultimate  authori- 
ty to  review  such  question  when  passed 
upon  would  not  exist  in  tliis  court  to  the 
extent  that  such  power  to  review  may  be 
essential  to  the  enforcement  of  the  provi- 
sions of  the  act  of  Congress  in  question. 
Elansas  City  Southern  R.  Co.  v.  C.  H.  Albers 
Commission  Co.  223  U.  S.  673,  591,  66  L. 
ed.  556,  665,  32  Sup.  Ct.  Rep.  316;  Creswill 
v.  Grand  Lodge,  K.  P.  225  U.  S.  246,  251,  56 
L.  ed.  1074,  1076,  32  Sup.  Ct.  Rep.  822; 
Norfolk  &  W.  R.  Co.  v.  Conley,  236  U.  S. 
606,  609,  610,  69  L.  ed.  745,  747,  748,  P.  U. 
R.  1915C,  293,  35  Sup.  Ct.  Rep.  437.  See 
Gaar,  S.  &  Co.  v.  Shannon,  223  U.  S.  468, 
144 


470,  471,  66  L.  ed.  610,  512,  32  Sup.  Ct. 
Rep.  236.  It  follows,  subject  to  the  reserva- 
tion stated,  that  the  judgment  below  must 
be  roTersed  and  the  case  remanded  for 
further  proceedings  not  inconsistent  with 
this  opinion. 
And  it  is  so  ordered. 


ATLANTIC     COAST     LINE     RAILROAD 
COMPANY,  Plff.  in  Err, 

V. 

R.  W.  GLENN. 
(See  S.  C.  Reporter's  ed.  888-394.) 

Error  to  state  court  —  declsioii  on  non- 
Federal  groand. 

1.  A  decision  of  the  highest  state  court, 
affirming  a  judgment  against  a  terminal  car- 
rier in  an  action  bv  a  shipper  for  damages 
on  account  of  a  delay  in  trsnsit,  cannot  be 
said  to  rest  upon  a  local  ground  independ- 
ent of  the  question  of  the  validity  under  the 
Federal  Constitution  of  the  provisions  of 
S.  C.  Civ.  Code  1912,  §§  2764,  2765,  making 
each  carrier  participating  in  a  through 
shipment  liable  for  loss  or  damage  occur- 
ring anywhere  en  route,  because  the  jury 
was  instructed  that  there  was  a  presump- 
tion which  might  be  rebutted  that  the  de- 
lay, if  any,  occurred  on  the  line  of  the 
terminal  carrier,  where  evidence  offered  by 
such  carrier  which  would  have  a  tendency  to 
show  that  it  was  not  in  fault,  and  hence 
tending  to  rebut  the  presumption,  was  ex- 
cluded from  the  consideration  of  the  jury 
by  a  ruling  that  the  statute  imposed  upon 
the  terminal  carrier  the  duty  to  responci  to 
the  shipper  for  the  negligence  of  the  initial 
carrier. 

[For  other  cases,  see  Appeal  and  Brror,  1463- 
1528,  In  Digest  Sup.  Ct.  1908.] 

Note. — On  the  general  subject  of  writ* 
of  error  from  the  United  States  Supreme 
Court  to  state  courts — see  notes  to  Martin 
V.  Hunter,  4  L.  ed.  U.  S.  97;  Hamblin  t. 
Western  Land  Co.  37  L.  ed.  U.  S.  267;  Re 
Buchanan,  39  L.  ed.  U.  S.  884;  and  Kipley 
V.  Illinois,  42  L.  ed.  U.  S.  998. 

On  what  adjudications  of  state  courts  can 
be  brought  up  for  review  in  the  Supreme 
Court  of  the  United  States  by  writ  of  error 
to  those  courts — see  note  to  Apex  Transp. 
Co.  V.  Garbade,  62  L.R.A.  513. 

On  how  and  when  questions  must  be 
raised  and  decided  in  a  state  court  in  order 
to  make  a  case  for  a  writ  of  error  from  the 
Supreme  Court  of  the  United  States — see 
note  to  Mutual  L.  Ins.  Co.  v.  McGrew,  63 
L.R.A.  33. 

On  liability  of  connecting  carrier  for  looa 
beyond  its  own  line — see  notes  to  Roy  y. 
Chesapeake  &  O.  R.  Co.  31  L.RA.(N.S.)  1; 
and  Galveston,  H.  &  S.  A.  R.  Co.  v.  Wallace^ 
56  L.  ed.  U.  S.  516. 

On  the  constitutionality  of  statutes  re- 
stricting contracts  and  business,  generally— 
see  note  to  State  v.  Loomis,  21  L.R.A  780. 

1S9  V.  B^ 


1915. 


ATLANTIC  C.  L.  R.  CO.  v.  GLENN. 


Constitutional  law  —  dne  process  off  law 
— >  freedom  off  contract  —  regnlatini^ 
liability  off  connecting  carrier. 

2.  No  rights  under  U.  S.  Const.,  14th 
Amend.,  are  infringed  by  the  provisions  of 
S.  C.  Civ.  Code  1912,  §§  2754,  2755,  under 
which  all  carriers  participating  in  a  through 
intrastate  shipment  are  made  the  agents 
of  each  other  with  respect  to  the  transpor- 
tation, so  that  any  of  the  carriers  may.be 
sued  for  loss  or  damage  occurring  on  any 
part  of  the  route,  being  given  the  right  of 
recovery  over  against  the  carrier  in  fault. 
[For  other  cases,  see  Constitutional  Law.  441- 

499.   591t604,  870-876.  in  Digest  Snp.  Ct. 

1908.1 

[No.  91.] 

Argued  and   submitted   December  6,  1915. 
Decided  December  20,  1915. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  South  Carolina  to  review  a 
judgment  which  affirmed  a  judgment  of  the 
Court  of  Common  Pleas  of  Dillon  County, 
in  that  state,  in  favor  of  a  shipper  in  an 
action  against  a  terminal  carrier  for  dam- 
ages growing  out  of  delay  in  transit.  Af- 
firmed. 

Scte  same  case  below,  96  S.  C.  357,  80  S. 
S.898. 

The  facts  are  stated  in  the  opinion. 

Mr.  P.  A.  Wlllcox  argued  the  cause,  and, 
with  Mr.  F.  L.  Willcox,  filed  a  brief  for 
plaintiff  in  error: 

Stipulations  like  iKose  against  which 
this  legislation  was  directed  have  at  all 
times  been  recognized  previous  to  the  legis- 
lation as  lawful  and  reasonable  limita- 
tiona  Previous  to  this  legislation  the  ini- 
tial carrier  could  not  make  a  contract  bind- 
ing upon  the  terminal  carrier. 

Venning  v.  Atlantic  Coast  Line  R.  Co. 
78  S.  C.  49,  12  L.RA.(N.S.)  1217,  125 
Am.  St.  Rep.  768,  58  S.  E.  983. 

Previous  to  this  legislation  the  liability 
of  a  common  carrier  terminated  with  its 
prompt  delivery  of  the  property  in  good 
order  to  the  next  connecting  carrier,  and 
likewise,  it  would  seem,  the  liability  of  a 
connecting  carrier  terminated  upon  its 
prompt  delivery  of  the  property  to  the  next 
connecting  carrier,  or  to  the  consignee,  in 
the  same  condition  in  which  the  property 
was  received  by  it. 

St.  Louis  Ins.  Co.  v.  St.  Louis,  V.  T.  H. 
k  I.  R.  Co.  104  U.  8.  146,  26  L.  ed.  679. 

A  citizen  of  the  state  of  South  Carolina 
has  an  inherent  right  to  enter  into  a  con- 
tract with  a  common  carrier  for  the  trans- 
portation of  property  over  its  own  and  con- 
necting lines.  He  has  an  inherent  right  to 
make  a  contract  for  a  fair  consideration, 
passing  to  him,  relieving  the  common  car- 
rier— whether  initial  or  otherwise — ^from 
60  li.  ed. 


liability  for  the  default  of  another,  which 
has  already  occurred.  This  act,  as  enforced 
by  the  stsjke  supreme  court,  deprives  a  citi- 
zen of  that  right.  It  likewise  deprives  the 
common  carrier  of  the  reciprocal  right  to 
carry  goods  at  a  lower  rate  than  would 
otherwise  be  applicable  upon  condition  that 
it  should  not  be  liable  for  the  default  of 
another — possibly  insolvent— conmion  car- 
rier. 

Allgeyer  v.  Louisiana,  165  U.  S.  578,  41 
L.  ed.  832,  17  Sup.  Ct.  Rep.  427;  Wil- 
liams V.  Fears,  179  U.  S.  270,  45  K  ed. 
186,  21  Sup.  Ct.  Rep.  128. 

Messrs.  P.  A.  Willcox,  P.  L.  Willcox,  and 
Henry  Buck  also  filed  a  brief  for  plaintiff 
in  error. 

Mr.  Frederick  S.  Tyler  submitted  the 
cause  for  defendant  in  error.  Messrs.  Jou 
P.  Lane  and  L.  B.  Haselden  were  on  the 
brief: 

The  police  power  of  a  state  embraces 
regulations  designed  to  promote  the  public 
convenience  or  the  general  prosperity  as 
well  as  regulations  designed  to  promote  the 
public  health,  the  public  morals,  or  the  pub- 
lic safety. 

Chicago,  B.  &  Q.  R.  Co.  v.  Illinois,  200  U. 
S.  561,  502,  50  L.  ed.  506,  609,  26  Sup.  Ct. 
Rep.  341,  4  Ann.  Cas.  1175 -,  Crowley  v. 
Christensen,  137  U.  S.  86,  34  L.  ed.  620, 
11  Sup.  Ct.  Rep.  13;  Noble  State  Bank  v. 
Haskell,  219  U.  S.  104,  111,  55  L.  ed.  112, 
116,  32  L.R.A.(N.S.)  1062.  31  Sup.  Ct.  Rep. 
186,  Ann.  Cas.  1912A,  487. 

There  is  no  such  thing  as  absolute  free- 
dom of  contract.  Contracts  which  contra- 
vene public  policy  cannot  be  lawfully  made 
at  all,  and  the  power  to  make  contracts 
nuiy  in  all  cases  be  regulated  as  to  form, 
evidence,  and  validity  as  to  third  persons. 
The  power  of  government  extends  to  the 
denial  of  liberty  of  contract  to  the  extent 
of  forbidding  or  regulating  every  contract 
which  is  reasonably  calculated  to  injurious- 
ly affect  the  public  interests. 

Atlantic  Coast  Line  R.  Co.  v.  Riverside 
Mills,  219  U.  S.  186,  202,  55  L.  ed.  167, 
180,  81  L.R.A.(N.S.)  7,  31  Sup.  Ct.  Rep. 
164. 

The  legislature  or  law-making  powers  are 
the  judges  of  public  policy,  and  when  they 
have  the  constitutional  power  to  legislate, 
public  policy  is  what  the  statutes  passed 
by  them  enact;  and  when  the  state  has 
spoken  through  its  legislature,  there  is  no 
more  room  for  speculation  as  to  what  the 
policy  of  the  state  is. 

9  Cyc.  482. 

The  mere  fact  that  a  court  may  differ 
with  the  legislature  in  its  views  of  public 
policy,  or  that  judges  may  hold  views  in- 
consistent with  the  propriety  of  the  legia- 


389-391 


SUPIl£3f£  COURT  OF  THE  UNITED  STATES. 


Oct. 


Ution  in  question,  affords  no  ground  for 
judicial  interference,  unless  the  act  in  ques- 
tion is  unmistakably  and  palpably  in  excess 
of  legislative  power. 

McLean  v.  Arkansas,  211  U.  S.  547,  63 
L.  ed.  319,  29  Sup.  Ct.  Rep.  206. 

Will  the  Supreme  Court  of  the  United 
States  declare  unconstitutional  an  act  of 
the  legislature  of  South  Carolina  when  it 
only  affects  matters  within  the  borders  of 
that  state,  and  is  a  regulation  in  the  best 
interests  of  the  public,  and  is  made  in  the 
interests  of  public  policy? 

Atlantic  Coast  Line  R.  Co.  v.  Riverside 
Mills,  219  U.  S.  186,  206,  55  L.  ed.  167, 
182,  31  L.RA..(N.S.)  7,  31  Sup.  Ct.  Rep. 
164;  Crowley  v.  Christensen,  137  U.  S.  86, 
34  L.  ed.  620,  11  Sup.  Ct.  Rep.  13;  Noble 
State  Bank  v.  Haskell,  219  U.  S.  104-110, 
55  L.  ed.  112-116,  32  L.R.A.{N.8.)  1062, 
31  Sup.  Ct.  Rep.  186,  Ann.  Cas.  1912A, 
487;  Hurtado  v.  California,  110  U.  S.  516- 
558,  28  L.  ed.  232-246,  4  Sup.  Ct.  Rep. 
Ill,  292;  Patterson  v.  The  Eudora,  190 
U.  S.  169,  179,  47  L.  ed.  1002,  1007,  23 
Sup.  Ct.  Rep.  821 ;  Twining  v.  New  Jersey, 
211  U.  S.  78,  127,  53  L.  ed.  97,  117,  29 
Sup.  Ct.  Rep.  14;  Knoxvillc  Iron  Co.  v. 
Harbison,  183  U.  S.  13,  22,  46  L.  ed.  55, 
61,  22  Sup.  Ct.  Rep.  1;  McLean  v.  Arkan- 
sas, 211  U.  S.  547,  53  L.  ed.  319,  29  Sup. 
Ct.  Rep.  206;  Billings  v.  Illinois,  188  U. 
S.  97,  104,  47  L.  ed.  400,  403,  23  Sup.  Ct. 
Rep.  272;  Mobile  County  v.  Kimball,  102 
U.  S.  691,  707,  26  L.  ed.  238,  243;  Cam- 
field  V.  United  States,  167  U.  S.  518,  42 
L.  ed.  260,  17  Sup.  Ct.  Rep.  864. 

Mr.  Chief  Justice  White  delivered  the 
opinion  of  the  court: 

Sections  2754  and  2755  of  the  Civil  Code 
of  South  Carolina  (1912)  provide  in  part 
as  follows: 

"All  common  carriers  over  whose  transpor- 
tation lines,  [390]  or  parts  thereof,  any 
freight,  baggage  or  other  property  received 
by  either  of  such  carriers  for  through  ship- 
ment or  transportation  by  such  carriers  on  a 
contract  for  through  carriage,  recognised, 
acquiesced  in  or  acted  upon  by  such  carriers, 
shall  in  this  state,  with  the  respect  to  the 
undertaking  and  matters  of  such  transpor- 
tation, be  considered  and  construed  to  be 
connecting  lines,  and  be  deemed  and  held 
to  be  the  agents  of  each  other,  each  the 
agent  of  the  others,  and  all  the  others  the 
agents  of  each,  and  shall  be  held  and  deemed 
to  be  under  a  contract  with  each  other  and 
with  the  shipper,  owner  and  consignees  of 
such  property  for  the  safe  and  speedy 
through  transportation  thereof  from  point 
of  shipment  to  destination;  and  such  con- 
S46 


tract  as  to  the  shipper,  owner  or  ooDsignee 
of  such  property  shall  be  deemed  and  held 
to  be  the  contract  of  each  of  such  common 
carriers;    •    .    . 

"For  any  damages  for  injury,  or  damage 
to,  or  loss,  or  delay  of  any  freight,  baggage 
or  other  property  sustained  anywhere  in 
such  through  transportation  over  connecting 
lines,  or  either  of  them,  as  contemplated 
and  defined  in  the  next  preceding  section  of 
this  act,  either  of  such  connecting  carriers 
which  the  person  or  persons  sustaining  such 
damages  may  first  elect  to  sue  in  this  state 
therefor,  shall  be  held  liable  to  such  per- 
son or  persons,  and  such  carrier  so  held 
liable  to  such  person  or  persons  shall  be 
entitled  in  a  proper  action  to  recover  the 
amount  of  any  loss,  damage  or  injury  it 
may  be  required  to  pay  such  person  or  per- 
sons from  the  carrier  through  whoee  negli- 
gence the  loss,  damage  or  injury  was  sus- 
tained, together  with  costs  of  suit." 

In  November,  1911,  these  provisions  being 
in  force,  Glenn,  the  defendant  in  error, 
through  an  agent,  delivered  to  the  Southern 
Railway  Company  at  Chester,  South  Caro- 
lina, a  carload  of  cattle  for  through  ship- 
ment to  Latta,  South  Carolina,  on  the  At- 
lantic Coast  Line  Railroad.  The  Southern 
Railroad  accepted  the  cattle,  issued  [391]  a 
bill  of  lading  for  their  shipment  to  Latta 
over  its  own  and  its  connecting  lines,  and 
transported  them  over  its  own  line  to  Co- 
lumbia, South  Carolina,  where  they  were  b^ 
it  delivered  to  and  accepted  by  the  Atlantic 
Coast  Liine  Railroad  Company,  by  which 
compsny  they  were  carried  under  the  origi- 
nal bill  of  lading  to  Latta  and  there  de- 
livered to  Glenn,  the  consignee.  There  waa 
delay  in  the  transit,  and  to  recover  dam- 
ages on  account  of  resulting  injury  to  the 
cattle  Glenn  brought  this  suit  against 
the  Atlantic  Line,  alleging,  conformably  to 
the  statute  above  quoted,  that  the  Southern 
Railway,  in  so  far  as  the  shipment  involved 
was  concerned,  was  the  agent  of  the  de- 
fendant, and  consequently  asserting  a  right 
to  recover  from  the  defendant  damages  re- 
sulting from  the  negligence  of  the  South- 
ern Railway  or  of  the  defendant  or  both. 
The  defendant  denied  this  right  and  sought 
to  escape  all  liability  by  establishing  that 
it  had  promptly  transported  and  delivered 
the  cattle  after  receiving  them  from  tho 
Southern  Railway,  that  the  delay,  if  any, 
had  not  occurred  on  its  line,  and  that  by 
virtue  of  the  following  provision  of  the 
contract  of  shipment  defendant  was  not  re- 
sponsible for  any  delay  occurring  on  the 
line  of  the  Southern  Railway: 

"That  the  responsibility,  either  as  com- 
mon carrier  or  warehouseman,  of  each  car- 

1S9  U.  8. 


1915. 


ATLANTIC  C.  L.  R.  00.  v.  GLENN. 


391-494 


rier  orer  whose  line  the  property  nhipped 
hereunder  shall  be  transported,  shall  cease 
MB  soon  as  delivery  is  made  to  the  next  car- 
rier or  to  the  consignee;  and  the  liability 
of  the  said  lines  contracted  with  is  several, 
and  not  joint;  neither  of  the  said  carriers 
shall  be  responsible  or  liable  for  any  act, 
omission,  or  negligence  of  the  other  carriers 
over  whose  lines  said  property  is  or  is  to  be 
transported." 

Ihis  defense  was,  on  motion  of  the  plain- 
tiff, stricken  by  the  court  from  the  answer 
on  the  ground  that  the  provision  of  the  con- 
tract was  void  because  in  conflict  with  the 
statute  which  we  have  quoted,  and  irulings 
to  the  same  effect  were  [392]  made  during 
the  course  of  the  trial  in  excluding  evidence 
offered  by  the  defendant,  in  refusing  instruc- 
tions by  it  requested,  and  in  charging  the 
jury  that  the  provisions  of  the  statute  were 
applicable  to  the  case,  and  that  the  defend- 
ant was  liable  for  damage  resulting  from 
its  own  or  the  negligence  of  the  Southern 
Railway.  A  judgment  in  favor  of  the  plain- 
tiff, rendered  on  the  verdict  of  the  jury, 
was  affirmed  by  the  court  below,  which  held 
that  the  statute  was  rightly  applied  to  the 
case  and  was  not  repugnant  to  the  due  proc- 
ess clause  of  the  14th  Amendment  (96  S. 
C.  357,  80  S.  £.  898),  and  the  correctness 
of  that  conclusion  is  the  question  for  de- 
cision on  this  writ  of  error. 

We  fil^t  dispose  of  a  motion  to  dismiss. 
It  is  based  on  the  proposition  that  since 
the  court  instructed  the  jury  that  there 
was  a  presumption,  which  might  be  rebut- 
ted, that  the  damage  to  the  cattle,  if  any, 
occurred  on  the  line  of  the  delivering  carri- 
er, that  is,  the  defendant  company,  the  jury 
might  have  found  for  the  plaintiff  wholly 
irrespective  of  the  statute,  and  therefore 
the  judgment  rests  upon  an  independent 
state  ground  broad  enough  to  sustain  it. 
But  the  want  of  foundation  for  the  proposi- 
tion is  manifest  when  it  is  considered  that 
evidence  offered  by  the  defendant  which 
would  have  a  tendency  to  show  that  no 
damage  and  no  delay  occurred  on  its  line, 
and  hence  tended  to  rebut  the  presumption, 
was  excluded  from  the  consideration  of 
the  jury  by  the  ruling  of  the  court  that  the 
statute  imposed  upon  the  defendant  the 
duty  to  respond  to  the  plaintiff  for  the  neg- 
ligence of  the  Southern  Railway.  The  mo- 
tion is  therefore  denied. 

Coming  to  the  merits  we  are  of  the  opin- 
ion that  the  case  is  controlled  by  Atlantic 
Coast  Line  R.  Co.  v.  Riverside  Mills,  219 
U.  S.  180,  65  L.  ed.  167,  31  L.R.A.(N.S.) 
7,  31  Sup.  Ct.  Rep.  164.  In  that  case  the 
constitutionality  of  the  act  of  Congr 
40  L.  ed. 


known  as  the  Carmaek  amendment  to  the 
act  to  regulate  commerce  was  considered, 
the  question  presented  being  whether  Con- 
gress, under  its  power  to  regulate  commerce, 
could    make   an    initial    carrier    liable   to 
[393]  the  holder  of  a  biU  of  lading  issued 
by  it  for  a  through  interstate  shipment  of 
property  over  its  own  and  connecting  lines 
for  a  loM  occurring  after  the  property  had 
been  delivered  by  it  to  a  connecting  carrier, 
and  while  in  the  control  of  such  carrier.   It 
was  decided  that  the  act  was  a  valid  regula- 
tion of  interstate  commerce,  and  hence  that 
no  rights  of  the  initial  carrier  secured  by 
the  5th  Amendment  had  been  violated.  It  is 
true  that  case  involved  the  power  of  Con* 
gress  over  interstate,  while  this  concerns  the 
power  of  a  state  over  intrastate,  commerce, 
but  the  reasoning  by  which  the  conclusion 
as  to  the  existence  of  the  power  was  sus- 
tained in  that  case  compels  a  like  conclusion 
with  reference  to  the  power  of  a  state  over 
commerce  wholly  within  its  borders.     In- 
deed, in  argument  the  controlling  force  in  a 
general  sense  of  the  Riverside  Case  is  con- 
ceded; but  it  is  insisted  that  it  can  here 
have  no  application  because  liability  is  im- 
posed by  the  state  statute  upon  the  terminal 
and  intermediate  carriers  as  well  as  the  in- 
itial   or    receiving   carrier;    while    in    the 
Riverside  Case  the  liability  alone  of  the 
latter  was  under  consideration^    But  it  is 
obvious  that  this  proposition  challenges  not 
the  power,  but  the  wisdom  of  exerting  it, 
since  in  the  nature  of  things  the  power  to 
constitute  an  initial  carrier  the  agent  of 
the  terminal  carrier  is  not  different  from 
the  power  to  make  the  terminal  carrier  the 
agent  of  the  initial  carrier.    Of  coarse  we 
confine  onrselves  to  the  ease  before  us  and 
therefore  do  not  decide  what  would  be  the 
rights  of  the  terminal  carrier  if,  against 
its  will,  it  had  be«i  compelled  to  accept  the 
cattle  from  the  initial  carrier  in  a  damaged 
condition,  or  if  they  had  never  been  deliv- 
ered to  it.    These  questions  are  not  present- 
ed by  the  record,  since  it  is  not  contended 
that  the  acceptance  of  the  cattle  by  the 
Atlantic  Coast  Line  was  not  voluntary.    In 
fact,  it  is  stated  in  the  argument  of  the 
plaintiff  in  error  that  long  prior  to. the 
shipment  in  question  the  statute  had  been 
construed  by  the  court  below  to  permit  the 
connecting  carrier,  upoki  [894]  accepting  a 
shipment  from  an  initial  carrier^  to  repudi- 
ate the  original  bill  of  lading  and  issue  a 
new  one.  Venning  v.  Atlantic  Coast  Line  R. 
Co.  78  S.  C.  42,  12  L.R.A(N.8.)  1217,  126 
Am.  St.  Rep.  768^  58  S.  E.  983« 
Affirmed. 

S47 


394 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oor.  IteM, 


J.  C.  HADACHECK,  Plff.  in  Err., 

V. 

a  E.  SEBASTIAN,  Chief  of  Police  of  the 
City  of  Lot  Angeles. 

(See  S.  C.  Reporter's  ed.  304-414.) 

Ck^nstltatlonal  law  —  due  procees  off  law 
—  police  power  —  forbidding  brick- 
yards in  designated  area. 

1.  A  municipal  ordinance  enacted  in 
good  faith  as  a  police  measure,  prohibiting 
brickmaking  within  a  designated  area,  does 
not  take,  without  due  process  of  law,  the 
property  of  an  owner  of  a  tract  of  land 
within  the  prohibited  district,  although 
such  land  contains  valuable  deposits  of  clay 
suitable    for    brickmaking    which    cannot 


profitably  be  removed  and  manufactured 
mto  brick  elsewhere,  and  is  far  more  valua- 
ble for  brickmaking  than  for  any  other  pur- 
pose, and  had  been  acquired  by  him  before  it 
was  annexed  to  the  municipality,  and  had 
long  been  used  by  him  as  a  brickyard. 
[For  other  cases,  see  Constitotlonal  Law.  IV. 
b,  6;  IV.  c,  8,  in  Digest  Sup.  Ct.  1908.] 

Ck^nstitutional  law  —  equal  protection 
of  the  laws  —  forbidding  brickmak- 
ing in  designated  area. 

2.  Prohibiting  by  municipal  ordinance 
the  manufacture  of  brick  within  a  desig- 
nated area  cannot  be  said  to  deny  the  equal 
protection  of  the  laws  to  the  owner  of  a 
brickyard  within  the  prohibited  district, 
where  thd  record  does  not  show  that  brick- 
yards in  other  localities  within  the  mu- 
nicipality where  the  same  conditions  exist 
are   not   regulated   or   prohibited,   or   that 


Note. — For  a  discussion  of  police  power, 
generally — see  notes  to  State  v.  Marshall,  1 
L.RA..  51;  Re  Gannon,  5  L..R.A.  359;  State 
V.  Schlemmer,  10  L.R.A.  135;  Ulman  v.  Bal- 
timore, 11  L.R.A.  224;  Electric  Improv.  Co. 
V.  San  Francisco,  13  L.R.A.  131;  and  Bar- 
bier  V.  Connolly,  28  L.  ed.  U.  S.  923. 

As  to  municipal  power  over  nuisances — 
see  notes  to  Grossman  v.  Oakland,  36  L.R.A. 
593;  and  Ex  parte  Lacey,  38  L..R.A.  640. 

As  to  the  constitutionality  of  statutes  re- 
stricting contracts  and  business — see  note 
to  State  v.  Loomis,  21  L.RJk.  789. 

As  to  the  business  of  burning  brick  as  a 
nuisance,  see  note  to  Phillips  v.  Lawrence 
Vitrified  Brick  &  Tile  Co.  2  L.R.A.(N.S.) 
92. 

On  the  general  subject  of  writs  of  error 
from  United  States  Supreme  Court  to  state 
courts — see  notes  to  Martin  v.  Hunter,  4 
L.  ed.  U.  S.  97;  Hamblin  v.  Western  Land 
Co.  37  L.  ed.  U.  S.  267;  Re  Buchanan,  39 
L.  ed.  U.  S.  884 ;  and  Kipley  v.  Illinois,  42 
L.  ed.  U.  S.  998. 

On  what  questions  the  Federal  Supreme 
Court  will  consider  when  reviewing  the 
judgments  of  state  courts — see  note  to  Mis- 
soiu'i  ex  reL  Hill  v.  Dockery,  63  L.R.A. 
571. 

Validity  of  municipal  regulation  or  prohibi- 
tion of  brick  kilns  or  yards. 

Very  few  cases  involve  this  question. 

A  municipal  ordinance  making  a  yard 
where  bricks  are  burned,  within  the  city 
limits,  and  within  1,200  feet  of  any  private 
residence  or  public  schoolhouse  or  park, 
without  permission,  a  nuisance,  is  void  both 
for  unreasonableness  and  as  effecting  an 
unconstitutional  taking  or  destroying  of 
private  property  without  due  process  of 
law.  Denver  v.  Rogers,  46  Colo.  479,  25 
L.RJk.{N.S.)  247,  104  Pac.  1042. 

But  an  ordinance  prohibiting  the  erec- 
tion of  brick  kilns  in  the  corporate  limits, 
by  a  city  that  has  charter  power  to  make 
and  enforce  the  necessary  police  regula- 
tions and  regulate  the  erection  of  all  build- 
ings and  other  structures  within  the  cor- 
porate limits,  is  valid  as  against  an  action 
S48 


in  mandamus  to  compel  the  city  building 
inspector  to  issue  a  permit  in  violation 
thereof,  in  the  absence  of  a  showing  that 
the  enactment  was  an  unreasonable  and 
arbitrary  invasion  of  individual  rights  un- 
der the  guise  of  police  regulations.  State 
ex  rel.  Knttenbrink  v.  Withnell,  91  Neb. 
101,  40  L.R.A.(N.S.)  898,  135  N.  W.  376. 
An  ordinance  of  a  town  board  of  health 

f prohibiting  the  exercise  within  the  town 
imits  of  the  trade  or  employment  of  ex- 
cavating clay  for  the  purpose  of  manufac- 
turing bricks  except  upon  premises  '*now 
owned  and  operated"  by  a  specified  brick 
company,  without  a  permit,  and  without 
furnishing  a  bond  conditioned  upon  the  ob- 
servance of  the  terms  of  the  permit,  was 
refused  enforcement  in  Belmont  v.  New  Eng- 
land Brick  Co.  190  Mass.  442,  77  N.  E.  604, 
as  against  the  said  brick  company  which  was 
excavating  clay  from  additional  land  ac- 
quired after  the  passage  of  the  ordinance. 
The  court  said:  *To  make  bricks  requires 
clay,  and  the  occupation  of  manufacturing 
them  in  which  the  defendant  was  engaged 
is  not  within  the  class  of  employments  pre- 
sumably offensive,  or  for  which,  under  Itev. 
Laws,  chap.  75,  §  99,  a  license  must  be 
obtained  before  they  can  be  prosecuted  law- 
fully. Neither  is  this  business  generally 
recognized  as  directly  harmful  to  the  healtii 
or  property  of  the  community.  But  the 
prohibition  that  clay  could  not  be  dug  for 
this  purpose  except  out  of  land  owned  by 
the  aefendant  when  the  order  was  passed 
might  be  indirectly  sufficient  to  prevent  the 
further  transaction  of  its  business  for  want 
of  material;  and  if  the  acquisition  of  the 
additional  land  described  in  the  bill  from 
which  clav  could  be  dug  became  necessary, 
the  prohibition  might  come  very  near  to 
being  a  confiscation  of  property  rights  with- 
out compensation."  The  object  of  the  or- 
dinance, viz,,  the  prevention  of  the  accumn- 
lation  of  stagnant  water  in  the  pits,  form- 
ing breeding  places  for  mosquitoes,  could 
have  been  accomplished,  the  court  said, 
without  "an  impairment  of  private  rights  so 
disproportionate  with  the  gain  to  the  public 
health  as  to  make  it  unreasonable  and  there- 
fore invalid." 

189  U.  S. 


UU  HADACHECK  v.  SEBASTUK. 

•thw  objcetioiiftU*  buBincMM  ^n  permitUd  Huekcattlut's    Appeal,   70    Pa.    102,    10 

within  ue  ume  dirtrict.  Am.  Kep.  M9;  BtaU  es  rel.  Horikottle  v. 

Kiiop  to  rt-t.  oourt  -  Kopo  ol  renew  ^  ^"f"  .^'''i^fi  ?";''^*  J''*  ^-  " 

—  loGsI  I»w.  ^■•'-  **3'  2  I'.B-i.(N.B.)    92,  82  Pm.  787; 

S.  The  decision  of  ths  highert  court  of  Denver  v.  Rogers,  46  Colo.  47B,  26  L.JLA. 

a  lUte  thkt  a  municipal  ordinance  which  is  (N.S.}    247,  104  Pac.  1042;   Windfall  Mfg. 

•nerted  to  violate  the  Federal  ConBtitution  Co.  v.  PattenoD,   148   lad.   414,  S7  L.RjL 

ii  within  the  cjty'i  charter  powerj,  and  ia  381,  62  Am.  St.  E«p.  032,  47  N.  B.  2,  18 

not  forbidden  by  the  itate  ConaUtution,  la  u^.  Mhi.  Rep.  074;  Belmont  t.  New  Eng- 

eoocluelTe  upon  the  Federal  Supreme  Court  ,^j  g^^  j^    j^q  ^^^^  ^^    „  j^^ 

oa  writ  of  error  to  the  itate  court.  -J^, 

iror  other  oaea,  a*t  Appeal  and  Brror,  3134-  '^ 

tUl,  In  Dlxeet  Snp.  Ct  IVOB.)  Therefore   the   dty   cannot   prohibit   the 
maintenance  of  n  hriekyard  uulcu,  by  ren- 

[Ho.  32.]  ion  of  the  manner  of  Ita  opermtitm.  It  be- 
come* a  nuiaance  in  fact. 

Sidaitted  October  22,  IBIB.     Decided  De-  Yate.   v.   Milwaukee,   10   Wall.   497,   10 

oember  20,  IBIB.  l.   ed.   884;    Everett  v.  Council   Bluffs,  46 

I..  -»n«T.  .     .1     o                ^     -.     .  .1  Ifwa,  66;  Ei  parte  Sing  Lee,  08  Cal.  354, 

M  ERROR  to  the  Supreme  Court  of  the  g^    ^.j^     ^^/  3^    ^^  g^    ^       2I8,    31 

SUte   of   Cahfornia   to    review    a    judg-  p^    245;    Re  Sam   Kee,  31   Fed.  680;    Be 

Bent  refu«ng  relwf  by  habeo  corpiu  to  a  ^       ^^j,  gg  Fed.  623;  Ex  parte  Whitwall, 

perMn   convicted   of  Tiolatlng  a  municipal  gg  [,^j    ^3    jg  ^.r.a.  727,  35  Am.  St.  Rep. 

ordinance  prohibiting  brickmaking  within  a  ^52,  32  Pac.  870;   Stockton  Laundry  Ca«>, 

-«.„,.*«!  .re^     Affirmed  g^    ^^                  ^^^   ,                        ^J  ^ 

lie  below,  166  Csl.  416.  L.RA.  ^„    „  t  i>  .  ,wo.   o^f    nn^   i>..    -.n.^. 


deeignated  area.    Affirmed. 

See  same  case  below,  16{ 

1»16B,  1248,  132  Pac.  684. 


470,  25  L.E.A.(N.8.)    247,    104  Pac.   1042; 

XI.-  ».,.-  .™  .».*^  t„  fk.  i»ini»n  Denver  v.  Mullen,  7  Colo.  34e,  3  Pac.  607; 

The  facts  are  stated  in  tne  opinion.  ni_.iii      ^  r.            -.a  r-  <     m.    .-,   •       c. 

'^  Phillips  V.  Denver,  IS  Colo.  184,  41  Am.  St. 

Hr.   Emmet   H.    WlUon   submitted   the  Rep.  230,  34  Pac.  002. 

cauae  for  plaintiff  In  error.     Mr.  C.  0,  De  The  city  council  of  the  city  of  Lob  Ange- 

Gsrmo  was  on  the  brief:  lee  ie  not  empowered  to  paBB  an  ordinance 

If  the  ordinance  purport*  to   have  been  making    that    a    nuisance    which    ie   not    a 

enacted  to  protect  the  public  health,  morals,  nuisance  per  *«.     The   legislative  declare- 

or  aafetjr,  but  has  no  subatantial  relation  tion  cannot  alter  the  character  of  a  business 

to  those  object*,  constitutional  rights  have  go  «*  to  make  a  nuisance  of  that  which  is 

been  invaded,  and  it  ie  the  dnty  of  the  court  not  auch  In  fact. 

m  to  adjudge.  Ex  parte  Sing  Lee,  OS  Cal.  364,  24  L.Rj|,. 

Yick  Wo  T.  Hopkins,  118  U.  S.  366,  30  195,    3I    Am.    St.    Rep.    218,    31    Pac.   246; 

L.  ad.  220,  a  Sup.  Ct.  Rep.  1064;   Lochner  Los   Angeles    County    r.    Hollywood    Cem«- 

V.  New  York,  108  U.  8.  45,  49  L.  ed.  937,  tery  Asso.  124  Cal.   344,  71  Am.   St.  Rep. 

SS  8vp.  Ct.  Rep.  539,  3  Ann.  Cas.   1133;  711,  57  Pu.  153;  Grossman  v.  Oakland,  30 

lawton  T.  Steele,  152  D.  8.  183,  38  L.  ed.  Or.   478,   30   L.R.A.  593,   60  Am.   St.   Rep. 

385,  14  Sup.  Ct  Rep.  499.  832,  41  Pac.  5;  Re  Sam  Kee,  31  Fed.  680; 

The    state,    or    any    political    auhdiflslon  Re    Hong    Wah,    82    Fed.    623;     Ex    parte 

thereof,  when  legisl^ing  for  the  protection  Whltwell,   98   Cal.   73,   19   L.R.A.    727,   86 

of    the    public    health,    the    publie    morals.  Am.   SL   Rep.   152,   32   Pac.   870;    Yatea  t. 

or  the  publie  safety.  Is  subject  to  the  para-  Milwaukee,    10   Wall.   497,   19   L.   ed.   984; 

mount  authori^  of  the  Constitution  of  the  Everett    v.    Council    Bluffs,    46    Iowa,    06; 

United  States,  and  ia  not  permitted  to  via-  Stockton  Laundry  Case,  26  Fed.  611. 

late  rights  secured  or  guaranteed  thereby.  The  power  possesBed  by  the  city  to  abate 

Haiderson  v.  New  York  (Henderson  v.  nuieancee  doea  not  include  power  to  prevent 
Wickham)  92  tT.  S.  259,  28  L.  ed.  643;  unless  the  business  is  a  nuisance  per  •«, 
HannUAl  ft  St.  J.  R.  Co.  ▼.  Husen,  05  tJ.  Such  things  as  become  nuisances  only  be- 
8.  465,  24  L.  ed.  527;  New  Orleans  Gaslight  cause  of  the  method  of  their  operation  can- 
Co.  V.  Louisiana  Light  k  H.  V.  k  Mfg.  not  be  Stopped  or  luppressed,  under  the 
Co.  lis  U.  S.  650,  29  L,  ed.  616,  8  Sup.  power  to  abate,  except  upon  clear  demon- 
Ct  Rep.  262;  Walling  v.  Michigan,  116  stration  that  they  are  nuisances. 
U.  a.  446,  20  L.  ed.  691,  6  Sup.  Ct.  Rep.  Lake  View  t.  Lets,  44  111.  SI. 
454;  Yick  Wo  t.  Hopkins,  118  U.  S.  356,  The  mere  l^islative  declaration  of  th« 
SO  Li,  ed.  220,  6  Sup.  CL  Rep.  1064.  existence   of   a   nuisance   will   not   be  ae- 

The  business  of  operating  brickyards  and  cepted  as  a  fact  by  the  courts, 

manufacturing  brick  is  a  useful,  uceeasary,  Dobbins  v.  Los  Angeles,  195  U.  S.  223,  49 

and  lawful  occupation,  and  is  not  a  nui-  L.  ed.  16S,  26  Sup.  Ct.  Rep.  18;  Re  Hong 

sance  per  se.  Wah,  82  Fed.  623 ;  Stockton  Laundry  Case, 

00  Z^  ed.  %^% 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  IteM, 


26  Fed.  611;  Re  Smith,  143  C^l.  371,  77 
Pae.  180;  Ex  parte  Sing  Lee,  96  Cal.  357, 
24  L.R.A.  105,  31  Am.  St.  Rep.  218,  31 
Pac.  245;  Hume  v.  Laurel  Hill  Cemetery, 
142  Fed.  563;  Los  Angeles  County  ▼.  Holly- 
wood Cemetery  Asso.  124  Cal.  350,  71  Am. 
St.  Rep.  75,  57  Pac.  153 ;  Laurel  Hill  Ceme- 
tery V.  San  Francisco,  152  Cal.  472,  27 
L.RJk.(N.S.)  260,  03  Pac.  70,  14  Ann.  Cas. 
1080;  Freund,  Pol.  Power,  §  63;  Dill.  Mun. 
Corp.  5th  ed.  §  666. 

The  determination  by  the  legislative  body 
of  what  is  a  proper  exercise  of  the  police 
power  is  neither  final  nor  conclusive,  but 
is  subject  to  the  supervision  of  the  courts. 
Legislative  judgment  as  to  the  reasonable- 
ness of  an  ordinance  is  not  necessarily  ac- 
cepted by  the  courts. 

Dobbins  v.  Los  Angeles,  105  U.  S.  223, 
40  L.  ed.  169,  25  Sup.  Ct.  Rep.  18;  Re 
Kelso,  147  Cal.  611,  2  L.R.A.  ( N.S. )  706, 
100  Am.  St.  Rep.  178,  82  Pac.  241;  Cov- 
ington &  L.  Tump.  Road  Co.  v.  Sandford, 
164  U.  S.  578,  502,  41  L.  cd.  560,  565,  17 
Sup.  Ct.  Rep.  108;  Lawton  v.  Steele,  152 
U.  S.  133,  38  L.  ed.  385,  14  Sup.  Ct.  Rep. 
400;  Re  Smith,  143  Cal.  368,  77  Pac.  180; 
Ex  parte  Whitwell,  08  CaL  73,  10  L.RJk. 
727,  35  Am.  St.  Rep.  152,  32  Pac.  870; 
Ex  parte  Sing  Lee,  06  Cal.  354,  24  L.R.A. 
105,  31  Am.  St.  Rep.  218,  31  Pac.  245; 
Yates  V.  Milwaukee,  10  Wall.  407,  10  L. 
ed.  084;  Laurel  Hill  Cemetery  v.  San  Fran- 
cisco, 152  Cal.  470,  27  L.R.A.(N.S.)  260, 
93  Pac.  70,  14  Ann.  Cas.  1080;  Ruhstrat 
v.  People,  185  111.  133,  40  L.R.A.  181,  76 
Am.  St.  Rep.  30,  57  N.  E.  41,  12  Am.  Crim. 
Rep.  453;   Freund,  Pol.  Power,  §   144. 

In  cases  of  this  kind  the  court  must 
scrutinize  the  objects  and  purposes  sought 
to  be  accomplished  by  the  ordinance  in 
question  for  the  purpose  of  determining  its 
validity.  In  so  doing  they  are  not  limited 
to  matters  that  appear  upon  the  face  of 
the  ordinance,  but  may  consider  all  the 
circumstances  in  the  light  of  existing  con- 
ditions. 

Dobbins  v.  Los  Angeles,  105  U.  S.  223, 
40  L.  ed.  169,  25  Sup.  Ct.  Rep.  18;  Lake 
View  V.  Tate,  130  III.  247,  6  L.R.A.  268, 
22  N.  E.  701;  Ex  parte  Patterson,  42  Tex. 
Crim.  Rep.  256,  51  L.RJk.  654,  58  S.  W. 
1011;  People  v.  Armstrong,  73  Mich.  288, 
2  L.R.A.  721,  16  Am.  St.  Rep.  578,  41  N. 
W.  276;  Oxanna  v.  Allen,  90  Ala.  468,  8 
So.  70;  Tugman  ▼.  Chicago,  78  111.  405; 
Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Con- 
nersville,  147  Ind.  277,  37  L.R.A.  176,  62 
Am.  St.  Rep.  418,  46  N.  E.  570;  State  v. 
Boardmaa,  03  Me.  73,  46  L.R.A.  750,  44 
Atl.  118;  Kosciusko  v.  Slomberg,  68  Miss. 
460,  12  L.R.A.  528,  24  Am.  St.  Rep.  281, 
SftO 


9  So.  297;  Crowley  v.  West,  52  La.  Ann. 
526,  47  L.RJi.  652,  78  Am.  St.  Rep.  355, 
27  So.  53;  Hume  V.  Laurel  Hill  Cemetery, 
142  Fed.  552;  Laurel  Hill  Cemetery  v.  San 
Francisco,  152  Cal.  472,  27  L.RJk.(N.8.) 
260,  03  Pac.  70,  14  Ann.  Cas.  1080;  Odd 
Fellows'  Cemetery  Asso.  v.  San  Francisco, 
140  Cal.  236,  73  Pac.  087;  Re  Smith,  143 
Cal.  370,  77  Pac.  180;  Re  Kelso,  147  CaL 
612,  2  L.RJi.(N.S.)  706,  100  Am.  St.  Rep. 
178,  82  Pac.  241;  Los  Angeles  County  v. 
Hollywood  Cemetery  Asso.  124  Cal.  350, 
71  Am.  St.  Rep.  75,  57  Pac.  153;  Freund* 
Pol.  Power,  §§  68,  138;  Pieri  v.  Shields- 
boro,  42  Miss.  403;  Corrigan  v.  Gage,  68 
Mo.  541;  Chicago  v.  Rumpff,  45  III.  90, 
02  Am.  Dec.  106. 

Discriminatory  legislation  cannot  be  sus- 
tained even  though  enacted  under  color  of 
sanitary  power. 

Laurel  Hill  Cemetery  v.  San  Francisco, 
152  Cal.  464,  27  L.R.A.(N.S.)  260,  03  Pac. 
70,  14  Ann.  Cas.  1080;  Freund,  Pol.  Power, 
§  138. 

A  law  is  not  general  or  constitutional  if 
it  imposes  peculiar  disabilities  or  burden- 
some conditions  in  the  exercise  of  a  common 
right  upon  a  person  selected  from  the  gen- 
eral body  of  those  who  stand  in  precisely 
the  same  relation  to  the  subject  of  the  law. 

Pasadena  v.  Stimson,  01  Cal.  238,  27  Par. 
604;  Bruch  v.  Colombet,  104  Cal.  347,  3h 
Pac.  45;  Darcy  v.  San  Jose,  104  Cal.  642, 
38  Pac.  600;  People  v.  Central  P.  R.  Co. 
105  Cal.  584,  38  Pac.  905;  Cullen  v.  Glen- 
dora  Water  Co.  113  Cal.  503,  30  Pac.  760, 
45  Pac.  822,  1047;  Ex  parte  Clancy,  00 
Cal.  553,  27  Pac.  411;  Krause  v.  Durbrow, 
127  Cal.  681,  60  Pac.  438. 

The  imposition  of  dissimilar  regulations 
upon  different  persons  engaged  in  the  same 
business  must  be  founded  upon  differences 
that  will  rationally  justify  the  diversity 
of  legislation. 

Ex  parte  Jentzsch,  112  Cal.  474,  32  L.R.A. 
664,  44  Pac.  803;  Darcy  v.  San  Jose,  104 
Cal.  642,  38  Pac.  500;  Ex  parte  Bohen, 
115  Cal.  372,  36  L.ILA.  618,  47  Pac.  55; 
Ex  parte  Dickey,  144  Cal.  237,  66  L.R.A. 
028,  103  Am.  St.  Rep.  82,  77  Pac.  024,  1 
Ann.  Cas.  428;  People  ex  rel.  Wineburgh 
Adv.  Co.  V.  Murphy,  105  N.  Y.  126,  21 
L.R.A.(N.S.)  735,  88  N.  E.  17;  Phillipn 
V.  Denver,  10  Colo.  170,  41  Am.  St.  Rep. 
230,  34  Pac.  002;  Belmont  v.  New  Eng- 
land Brick  Co.  190  Mass.  442,  77  N.  £. 
504;  Com.  v.  Maletsky,  203  Mass.  241,  24 
L.R.A.(N.S.)  1168,  80  N.  E.  245;  Chicago 
V.  Netcher,  183  111.  104,  48  L.R.A.  261,  75 
Am.  St.  Rep.  03,  55  N.  E.  707;  Bracevillc 
Coal  Co.  V.  People,  147  111.  66,  22  L.R.A. 
340,  37  Am.  St.  Rep.  206,  35  N.  E.  62. 

The  ordinance  in  question  deprives  the 

2S9  U.  S. 


1915. 


HADACHECK  t.  SEBASTIAN. 


plaintiff  in  error  of  his  property  without 
doe  process  of  law,  and  is  therefore  void. 

Frorer  v.  People,  141  111.  171,  16  L.RJk. 
492,  31  N.  E.  305;  Ramsey  t.  People,  142 
111.  380,  17  L.R.A.  853,  32  N.  E.  364;  Chi- 
etgo,  B.  &  Q.  R.  Ck).  v.  Chicago,  166  U. 
8.  226,  41  L.  ed.  979,  17  Sup.  Ct  Rep. 
581;  Chicago  v.  Netcher,  183  111.  104,  48 
LR.A.  261,  75  Am.  St.  Rep.  93,  55  N.  E. 
707;  Braecville  Coal  Co.  v.  People,  147 
Ul.  66,  22  L.RJk.  340,  37  Am.  St.  Rep.  206, 
35  N.  £.  62. 

In  order  to  sustain  the  validity  of  a 
muiicipal  ordinance  it  is  necessary  for  the 
court  to  determine  that  its  provisions  are 
reasonable. 

Chicago  v.  Rumpff,  45  111.  90,  92  Am.  Dec. 
196;  Toledo,  W.  &  W.  R.  Co.  v.  Jackson- 
Tille,  67  111.  37,  16  Am.  Rep.  611;  Tugman 
T.  Chicago,  78  111.  405;  Lake  View  v.  Tate, 
130  111.  247,  6  L.RJk.  268,  22  N.  E.  791; 
Oxanna  v.  Allen,  90  Ala.  468,  8  So.  79. 

The  ordinance  is  unreasonable  because 
the  severe  measures  adopted  were  not  rea- 
sonably necessary  for  the  prevention  of  the 
sets  complained  of  in  reference  to  the  brick- 
yard. Remedies  other  than  confiscation  of 
the  property  would  have  been  effective. 

Dobbins  v.  Los  Angeles,  196  U.  S.  223, 
49  L.  ed.  169,  25  Sup.  Ct.  Rep.  18;  Laurel 
Hill  Cemetery  v.  San  Francisco,  162  Cal. 
472,  27  L.R.A.(N.S.)  260,  93  Pac.  70,  14 
Ann.  Cas.  1080;  Hume  v.  Laurel  Hill  Ceme- 
tery, 142  Fed.  552;  Los  Angeles  County  v. 
Hollywood  Cemetery  Asso.  124  Cal.  349,  71 
Am.  St.  Rep.  75,  57  Pac.  153;  Judson  v. 
Los  Angeles  Suburban  Gas  Co.  157  Cal. 
168,  26  L.R.A.(N.S.)  183,  106  Pac.  581, 
21  Ann.  Cas.  1247;  Ex  parte  Sing  Lee,  96 
Cal.  354,  24  L.R.A.  195,  31  Am.  St.  Rep. 
218,  31  Pac.  245. 

The  ordinance  is  unreasonable  because, 
if  any  nuisance  has  existed,  the  same  may 
be  abated  by  regulatory  rather  than  by 
■oppressive  and  confiscatory  measures.  The 
Irasiness  should  be  allowed  to  continue  up- 
on eliminating  such  features,  if  any,  as 
constituted  a  nuisance. 

Hume  V.  Laurel  Hill  Cemetery,  142  Fed. 
564;  Judson  v.  Los  Angeles  Suburban  Gas 
Co.  157  Cal.  168,  26  L.R.A.(N.S.)  183, 
106  Pac.  681,  21  Ann.  Cas.  1247;  Green  v. 
Like,  54  Miss.  540,  28  Am.  Rep.  378; 
Chamberlain  v.  Douglas,  24  App.  Div.  582, 
48  N.  Y.  Supp.  710;  Pach  v.  Geoffroy,  67 
Hun,  401,  22  N.  Y.  Supp.  275;  Yocum  v. 
Hotel  St.  George  Co.  18  Abb.  N.  C.  340; 
Miller  v.  Webster  City,  94  Iowa,  162,  62  N. 
W.  648. 

The  ordinance  is  unreasonable  because  it 
ii  not  limited  with  reference  to  conditions 
ud  measures.  The  danger  may  be  slight 
ttd  remote,  while  the  remedy — entire  sup- 
pression—could not  be  more  drastic 
•6  L.  ed. 


Re  Smith,  143  Cal.  371, 77  Pac.  180;  Hume 
V.  Laurel  Hill  Cemetery,  142  Fed.  564; 
Laurel  Hill  Cemetery  ▼.  San  Francisco,  152 
Cal.  472,  27  L.RJ^.(N.S.)  260,  93  Pac.  70, 
14  Ann.  Cas.  1080;  Freund,  PoL  Power, 
§  143. 

The  ordinance  is  unreasonable  because 
the  means  adopted  is  out  of  proportion  to 
the  danger  involved.  The  restraint  should 
not  be  disproportionate  to  the  danger. 

Los  Angeles  County  v.  Hollywood  Ceme- 
tery Asso.  124  Cal.  350,  71  Am.  St.  Rep. 
75,  57  Pac.  153;  Odd  Fellows'  Cemetery 
Asso.  V.  San  Francisco,  140  Cal.  233,  73 
Pac.  987;  Hume  v.  Laurel  Hill  Cemetery, 
142  Fed.  564;  Freund,  Pol.  Power,  §§  150, 
158. 

The  ordinance  is  imreasonable  because 
the  law  will  not  take  cognizance  of  petty 
inconveniences  and  slight  grievances. 

Freund,  Pol.  Power,  §  178;  Joyce,  Nui- 
sances, §§  93,  96;  Laurel  Hill  Cemetery 
V.  San  Francisco,  152  Cal.  470,  27  L.R.A. 
(N.S.)  260,  93  Pac.  70,  14  Ann.  Cas.  1080; 
Van  De  Vere  v.  Kansas  City,  107  Mo.  83, 
28  Am.  St.  Rep.  396,  17  S."w.  695;  Sus- 
quehanna Fertilizer  Co.  v.  Spangler,  86  Md. 
562,  63  Am.  St.  Rep.  533,  39  Atl.  270; 
Tuttle  V.  Church,  53  Fed.  422;  Gilbert  v. 
Showerman,  23  Mich.  448;  McGuire  ▼. 
Bloomingdale,  8  Misc.  478,  29  N.  Y.  Supp. 
580;  Miller  v.  Webster  City,  94  Iowa,  162, 
62  N.  W.  648;  Gallagher  v.  Flury,  99 
Md.  181,  57  Atl.  672. 

The  ordinance  is  discriminatory  and  im- 
reasonable  because  the  district  was  un- 
reasonably and  irrationally  created. 

Re  Sam  Kee,  31  Fed.  680;  Stockton 
Laundry  Case,  26  Fed.  611;  Re  Hong 
Wah,  82  Fed.  623;  Re  Smith,  143  Cal. 
372,  77  Pac.  180;  Freund,  Pol.  Power, 
§  179. 

The  police  power  cannot  be  used'  for  the 
purpose  of  protecting  property  values. 

Hume  V.  Laurel  Hill  Cemetery,  142  Fed. 
565;  Re  Hong  Wah,  82  Fed.  625;  Dobbins 
V.  Los  Angeles,  195  U.  S.  223,  49  L.  ed. 
169,  25  Sup.  Ct.  Rep.  18;  Chicago  v.  Gun- 
ning System,  214  111.  628,  70  L.R.A.  230, 
73  N.  E.  1035,  2  Ann.  Cas.  892;  Ex  parte 
Whitwell,  98  Cal.  73,  19  L.R.A.  727,  35 
Am.  St.  Rep.  152,  32  Pac.  870;  Ex  parte 
Dickey,  144  Cal.  236,  66  L.R.A.  928,  lOa 
Am.  St.  Rep.  82,  77  Pac.  924,  1  Ann.  Cas. 
428;  Re  Smith,  143  Cal.  368,  77  Pac.  180; 
Re  Kelso,  147  Cal.  609,  2  L.R.A.(N.S.)  796, 
109  Am.  St.  Rep.  178,  82  Pac.  241;  Cooley, 
Const.  Lim.  7th  ed.  837. 

Mr.  Alber  lice  Stephens  submitted  the 
cause  for  defendant  in  error.  Messrs. 
Charles  S.  Burnell  and  Warren  L.  Williams 
were  on  the  brief: 

We  submit  the  opinions  and  decisidna  of 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cor.  Tkuc, 


the  supreme  court  of  the  state  of  California 
upon  the  case  here  under  consideration. 

Ex  parte  Hadacheck,  165  Cal.  416,  L.RJI. 
1016B,  1248,  132  Pac.  584;  Hadacheck  ▼. 
Alexander,  169  Cal.  259,  147  Pac.  259. 

Also  other  decisions  of  said  court,  pass- 
ing upon  the  validity  of  similar  ordinances 
prohibiting  the  maintenance  of  certain  class- 
es of  business  in  residence  districts. 

Ex  parte  Quong  Wo,  161  Cal.  220,  118 
Pac.  714;  Grumbach  v.  Lelande,  154  Cal. 
679,  08  Pac.  1059;  Re  Montgomery,  163 
Cal.  457,  125  Pac.  1070,  Ann.  Cas.  1914A, 
130;  Re  Linehan,  72  Cal.  114,  13  Pac.  170. 

The  police  power  extends  to  all  the  great 
public  needs. 

Camfield  v.  United  States,  167  U.  S.  518, 
42  L.  ed.  260,  17  Sup.  Ct.  Rep.  864;  Bacon 
V.  Walker,  204  U.  S.  311,  317,  51  L.  ed. 
409,  502,  27  Sup.  Ct.  Rep.  289 ;  Chicago,  B. 
&  Q.  R.  Co.  V.  Illinois,  200  U.  S.  592,  50  L. 
ed.  609,  26  Sup.  Ct.  Rep.  341,  4  Ann.  Cas. 
1175;  Noble  State  Bank  v.  Haskell,  219  U. 
S.  104,  55  L.  ed.  112,  32  L.R.A.(N.S.) 
1062,  31  Sup.  Ct.  Rep.  186,  Ann.  Cas.  1912A, 
487;  Lake  Shore  &  M.  S.  R.  Co.  v.  Ohio, 
173  U.  S.  285,  43  L.  ed.  702,  19  Sup.  Ct. 
Rep.  465;  Thorpe  v.  Rutland  &  B.  R.  Co. 

27  Vt.  140,  62  Am.  Dec.  625:  Pound  v. 
Turck,  95  U.  S.  464,  24  L.  ed.  527;  Han- 
nibal &  St.  J.  R.  Co.  V.  Husen,  96  U.  S. 
470,  24  L.  ed.  530;  German  Alliance  Ins. 
Co.  V.  Lewis,  233  U.  S.  389,  58  L.  ed.  1011, 
L.R.A.1915C,  1189,  34  Sup.  Ct.  Rep.  612; 
Bracey  v.  Darst,  218  Fed.  482. 

Under  what  circumstances  the  police 
power  should  be  exercised  to  prohibit  the 
conduct  of  certain  classes  of  business  with- 
in a  certain  district  is  a  matter  of  police 
regulation  for  the  municipal  authorities. 

New  Orleans  v.  Murat,  119  La.  1093,  44 
So.  898;  Barbier  v.  Connolly,  113  U.  S.  27, 

28  L.  ed.  923,  5  Sup.  Ct.  Rep.  357;  Soon 
Hing  V.  Crowley,  113  U.  S.  703,  28  L.  ed. 
1145,  5  Sup.  Ct.  Rep.  730. 

It  is  primarily  for  the  legislative  body 
clothed  with  the  proper  power,  to  determine 
when  such  regulations  are  essential,  and 
its  determination  in  this  regard,  in  view  of 
its  better  knowledge  of  all  the  circumstan- 
ces, and  of  the  presumption  that  it  is  acting 
with  a  due  regard  for  the  rights  of  all 
parties,  will  not  be  disturbed  in  the  courts 
imless  it  can  plainly  be  seen  that  the  regu- 
lation has  no  relation  to  the  ends  above 
stated,  but  is  a  clear  invasion  of  personal 
or  property  rights  imder  the  guise  of  police 
regulation. 

Ex  parte  Hadacheck,  165  Cal.  416,  L.R.A. 
1916B,  1248,  132  Pac.  584;  Ex  parte  Quong 
Wo,  161  Cal.  230,  118  Pac.  714;  SUte  ex 
rel.  Krittenbrink  v.  Withnell,  91  Neb.  101, 1 
40  L.RJ^.{N.S.)  898,  135  N.  W.  376;  Re 
^52 


Montgomery,  163  Cal.  457,  125  Pac.  1070, 
Ann.  Cas.  1914A,  130;  Odd  Fellaws'  Ceme- 
tery Asso.  V.  San  Francisco,  140  CaL  226, 
73  Pac.  987;  Re  Smith,  143  CaL  370,  77 
Pac.  180;  Missouri  P.  R.  Go.  y.  Omaha, 
235  U.  S.  121,  59  L.  ed.  157»  35  Sup.  Ct. 
Rep.  82 ;  German  Alliance  Ins.  Go.  y.  Lewis, 
233  U.  S.  389,  414,  58  L.  ed.  1011,  1022, 
L.R.A.1915C,  1189,  34  Sup.  Ct.  Rep.  612; 
Laurel  Hill  Cemetery  v.  San  Francisco,  152 
Cal.  464,  27  L.RJk.(N.S.)  260,  93  Pac  70, 
14  Ann.  Cas.  1080;  Ex  parte  Tuttle,  01  CaL 
591,  27  Pac.  933. 

The  reasons  actuating  the  legislative  body 
in  enacting  the  regulation  need  not  neces- 
sarily appear  from  a  reading  of  the  ordi- 
nance itself. 

Grumbach  v.  Lelande,  154  Cal.  685,  98  Pae. 
1059;  Odd  Fellow's  Cemetery  Asso.  v.  San 
Francisco,  140  Cal.  233,  73  Pac.  987;  Ex 
parte  Tuttle,  91  Cal.  591,  27  Piu^  933;  Re 
Zhizhuzza,  147  CaL  334,  81  Pac  955. 

The  laws  and  policy  of  a  state  may  be 
framed  and  shaped  to  suits  conditions  of 
climate  and  soil,  and  the  exercise  of  the 
police  power  may  and  should  have  refer- 
ence to  the  particular  situation  and  needs 
of  the  oonmiunity. 

Ohio  Oil  Co.  V.  Indiana,  177  U.  S.  190,  44 
L.  ed.  729,  20  Sup.  Ct.  Rep.  676,  20  Mor. 
Min.  Rep.  466;  Clark  v.  Nash,  198  U.  8. 
361,  49  L.  ed.  1085,  25  Sup.  Ct.  Rep.  676, 
4  Ann.  Cas.  1171;  Strickley  v.  Highland 
Boy  Gold  Min.  Co.  200  U.  S.  527,  60  L. 
ed.  581,  26  Sup.  Ct.  Rep.  301,  4  Ann.  Ca«. 
1174;  Offield  v.  New  York,  N.  H.  ft  H.  R. 
Co.  203  U.  &  372,  51  L.  ed.  231,  27  Sup. 
Ct.  Rep.  72;  New  Mexico  ex  rel.  McLean  v. 
Denver  &  R.  G.  R.  Co.  203  U.  S.  38,  61  L. 
ed.  78,  27  Sup.  Ct.  Rep.  1;  Sown  v.  Walling, 
204  U.  S.  320,  51  L.  ed.  503,  27  Sup.  Ct 
Rep.  292;  Bacon  v.  Walker,  204  U.  S.  311, 
51  L.  ed.  499,  27  Sup.  Ct.  Rep.  289;  Plessy 
V.  Ferguson,  163  U.  S.  537,  41  L.  ed.  256, 
16  Sup.  Ct.  Rep.  1138;  Welch  y.  Swasey, 
193  Mass.  364,  23  L.RJ^.(N.S.)  1160,  118 
Am.  St.  Rep.  523,  79  N.  E.  745. 

It  is  not  necessary  that  a  business  be  a 
nuisance  per  se  to  be  regulated. 

Ex  parte  Lacey,  108  Cal.  326,  38  L.R^ 
640,  49  Am.  St.  Rep.  93,  41  Pac  411;  Ez 
parte  Quong  Wo,  161  Cal.  220,  118  Pac 
714;  Moses  v.  United  States,  16  App.  D.  C. 
428,  50  L.R.A.  532;  Rhodes  v.  Dunbar,  67 
Pa.  275,  98  Am.  Dec  221;  Beadman  y. 
Tredwell,  31  L.  J.  Ch.  N.  S.  892;  Bardiam 
V.  Hall,  22  L.  T.  N.  S.  116;  Bamford  v. 
Turnley,  3  Best,  k  S.  62,  31  L.  J.  Q.  B.  N. 
S.  286,  9  Jur.  N.  S.  377,  10  Wedc.  Rep. 
803;  Campbell  v.  Seaman,  63  N.  Y.  568, 
20  Am.  Rep.  567. 

The  question  whether  the  classification  of 
subjects  for  the  exercise  of  the  police  power 

1S9  V.  S. 


1919. 


HADACHECK  v.  SEBASTIAN. 


is  proper  Ib  not  to  be  determined  upon  hard 
and  fast  rules,  but  must  be  answered  after 
a  consideration  of  the  particular  subject  of 
litigation. 

Re  Stoltenberg,  165  Cal.  789,  134  Pac. 
971. 

Whenever  a  thing  or  act  is  of  such  a 
nature  that  it  may  become  injurious  to  the 
welfare  of  the  community  if  not  suppressed 
or  regulated,  the  legislative  body  may,  in 
the  exercise  of  its  police  power,  make  and 
enforce  ordinances  to  regulate  or  prohibit, 
although  it  may  never  have  been  offensive 
or  injurious  in  the  past.  The  exercise  of 
this  power  is  not  limited  to  regulation  of 
such  things  as  may  have  already  become 
nuisances. 

Odd  Fellows'  Cemetery  Asso.  v.  San  Fran- 
cisco, 140  Cal.  231,  73  Pac.  987. 

The  length  of  time  during  which  a  busi- 
ness has  existed  in  a  certain  locality  does 
not  make  its  prohibition  for  the  future  un- 
constitutional. 

Tiedeman,  State  k  Federal  Control  of 
Persons  &  Property ;  State  ex  rel.  Russell  v. 
Beattie,  16  Mo.  App.  131;  Sedgw.  Stat.  & 
Const.  Law,  434;  Chicago,  B.  &  Q.  R.  Co. 
V.  Illinois,  200  U.  S.  502,  50  L.  ed.  609, 
26  Sup.  Ct.  Rep.  341,  4  Ann.  Cas.  1175; 
Frcund,  Pol.  Power,  §  529;  State  ex  rel. 
Horskottle  v.  Board  of  Health,  16  Mo.  App. 
8;  Powell  V.  Brookfleld  Pressed  Brick  &Tile 
Co.  104  Mo.  App.  713,  78  S.  W.  648;  Bush- 
nell  V.  Robeson,  62  Iowa,  542,  17  N.  W. 
888;  Baltimore  v.  Fairfield  Improv.  Co.  87 
Md.  352,  40  L.R.A.  494,  67  Am.  St.  Rep. 
344,  39  Atl.  1081 ;  Harmison  v.  Lewiston,  46 
m.  App.  164;  Com.  v.  Upton,  6  Gray,  473; 
Rhodes  v.  Dunbar,  57  Pa.  275,  98  Am.  Dec. 
221;  People  v.  Detroit  White  Lead  Works, 
82  Mich.  471,  9  L.R.A.  722,  46  N.  W.  735. 

Where  the  police  power  restricts  con- 
stitutional rights,  particularly  as  to  prop- 
erty, the  value  of  that  property  is  not  ma- 
terial to  the  issue. 

Mugler  V.  Kansas,  123  U.  S.  623,  31  L. 
ed.  205,  8  Sup.  Ct.  Rep.  273;  Grumbach  v. 
Lelande,  154  Cal.  684,  98  Pac.  1059;  West- 
em  Indemnity  Co.  v.  Pillsbury,  —  Cal.  — , 
151  Pac.  398 ;  Erie  R.  Co.  v.  Williams,  233 
U.  S.  685,  700,  58  L.  ed.  1155,  1161,  51 
LJLA.(N.S.)    1097,  34  Sup.  Ct.  Rep.  761. 

The  size  of  the  territory  affected  by  the 
ordinance  is  no  criterion  by  which  to  be 
guided  in  judging  of  its  discriminatory  qual- 
ities. 

Ex  parte  Quong  Wo,  161  Cal.  226,  118 
Pac.  714;  Re  Martin,  157  Cal.  67,  26  L.R.A. 
(N.S.)  242,  106  Pac.  235;  Re  Miller,  162 
Cal.  687,  124  Pac.  427;  Miller  v.  Wilson, 
236  U.  S.  373,  59  L.  ed.  628,  L.R.A.1915F, 
829,  35  Sup.  Ct.  Rep.  342. 

That  a  statute  will  result  in  injury  to 


legislature  of  power  to  enact  it,  though  a 
statute  is  invalid  where  its  purpose  is  pri- 
marily the  destruction  of  property. 

Enos  V.  Banff,  98  Neb.  245,  152  N.  W. 
397. 

The  character  and  value  of  property  con* 
tiguous  to  the  business  of  plaintiff  in  error 
is  very  much  to  be  considered. 

SUte  ex  rel.  Krittenbrink  v.  Withnell,  91 
Neb.  101,  40  L.R.A.(N.S.)  898,  135  N.  W. 
376. 

That  similar  conditions  exist  in  other 
localities  is  no  reason  why  an  ordinance 
regulating  and  equally  affecting  everyone  in 
a  given  locality  should  be  declared  uncon- 
stitutionaL 

Ex  parte  Tuttle,  91  Cal.  591,  27  Pac.  933; 
Re  Smith,  143  Cal.  370,  77  Pac.  180;  Re 
Zhizhuzsa,  147  Cal.  334,  81  Pac.  955;  Ex 
parte  Quong  Wo,  161  Cal.  220,  118  Pac. 
714. 

A  statute  enacted  within  the  police  power 
will  not  be  adjudged  invalid  merely  be- 
cause omitted  cases  might  have  been  prop- 
erly included  in  the  statute. 

People  V.  Charles  Schweinler  Press,  214 
N.  Y.  395,  LJI.A.— ,  — ,  108  N.  E.  639; 
People  ex  rel.  Krohn  v.  Warden,  152  N.  Y. 
Supp.  1136;  State  v.  Olson,  26  N.  D.  304, 
L.R.  A.— ,  — ,  144  N.  W.  661 ;  King  v.  Vicks- 
burg  R.  &  Light  Co.  88  Miss.  456,  6  L.RJL 
(N.S.)  1036,  117  Am.  St  Rep.  749,  42  So. 
204;  Rochester  v.  Macauley-Fien  Mill.  Co. 
199  N.  Y.  207,  32  LJR.A.(N.S.)  554,  92  N. 
E.  641. 

Every  holder  of  property  holds  it  under 
the  implied  liability  that  its  use  may  be 
so  regulated  that  it  shall  not  encroach  in* 
juriously  on  the  enjoyment  of  property  by 
others,  or  be  injurious  to  the  community. 

Pittsburg,  C.  C.  &  St.  L.  R.  Co.  v.  Chap- 
pell,  —  Ind.  — ,  106  N.  E.  403. 

Brickyards  and  brick  manufacturing 
plants,  as  well  as  all  businesses  which  re- 
quire the  generation  of  smoke,  soot,  and 
gas,  have  universally  been  held  to  be  ob- 
jectionable and  may  be  enjoined  or  regu- 
lated. 

State  ex  rel.  Krittenbrink  v.  Withnell,  91 
Neb.  101,  40  L.R.A.(N.S.)  898,  135  N.  W. 
376;  Susquehanna  Fertilizer  Co.  v.  Malon^ 
73  Md.  268,  9  L.R.A.  737,  25  Am.  St.  Rep. 
596,  20  Atl.  900;  Booth  v.  Rome,  W.  k  O. 
Terminal  R.  Co.  140  N.  Y.  267,  24  L.R.A. 
105,  37  Am.  St.  Rep.  558,  35  N.  E.  592; 
McMorran  v.  Fitzgerald,  106  Mich.  649, 
58  Am.  St.  Rep.  511,  64  N.  W.  569;  King 
V.  Vicksburg  R.  k  Light  Co.  88  Miss.  456, 
6  L.R.A.(N.S.)  1036,  117  Am.  St.  Rep.  749, 
42  So.  204;  Rochester  v.  Macauley-Fien 
Mill.  Co.  199  N.  Y.  207,  32  L.R.A.(N.S.) 
554,  92  N.  E.  641;  Powell  v.  Brookfleld 
Pressed  Brick  k  Tile  Mfg.  Co.  104  Mo.  App. 


tome  private  interest  does  not  deprive  the    713,  78  S.  W.  648;  Odd  Fellows'  Cemetery 
«•  li.  ed.  23  ^^% 


404»  406 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cot.  Tknc» 


Asso.  y.  San  Fnwciaco,  140  Gal.  228,  73  Pao. 
087 ;  Kirchgraber  ▼.  Lloyd,  69  Mo.  App.  69. 

The  supreme  court  of  California  baa  de- 
termined aa  a  fact,  after  considering  the 
evidence  (consisting  of  affidavits  and  coun- 
ter-aflSdavits  accompanying  the  petition  and 
return),  that  the  district  surrounding  peti- 
tioner's brickyard  has  become  primarily  a 
residence  section,  and  that  the  occupants 
of  neighboring  dwellings  are  seriously  dis- 
commoded by  petitioner's  operations. 

Ex  parte  Hadachecic,  166  CaL  410,  L.RJL 
1916B,  1248,  132  Pac.  684. 

The  presumption  is  in  favor  of  the  valid- 
ity of  the  ordinance,  and  this  presumption 
has  not  been  rebutted  by  any  evidence  pro- 
duced by  plaintiff  in  error,  but,  on  the  con- 
trary, the  evidence  presented  at  the  hear- 
ing of  the  petition  for  a  writ  of  habeas 
corpus,  by  way  of  affidavits,  shows  that 
the  ordinance  was  one  that  was  necessary 
for  the  protection  of  the  public  health,  com- 
fort, safety,  and  welfare. 

Ibid. 

It  is  well  settled  that  prohibition  of  in- 
dustries in  certain  sections  of  cities  is  but 
a  regulation,  and  is  always  so  treated. 

£z  parte  Byrd,  84  Ala.  17,  6  Am.  St. 
Rep.  328,  4  So.  397;  Re  Wilson,  32  Minn. 
146,  19  N.  W.  723;  Shea  v.  Muncie,  148 
Ind.  14,  46  N.  E.  138;  Cronin  v.  People, 
82  N.  Y.  318,  37  Am.  Rep.  564;  Newton  v. 
Joyce,  160  Mass.  83,  56  Am.  St.  Rep.  385, 
44  N.  £.  116;  Ex  parte  Quong  Wo,  161  Cal. 
231,  118  Pac.  714;  Little  Rock  v.  Rein- 
man-Wolfort  Automobile  Livery  Co.  107 
Ark.  174,  156  8.  W.  105;  St.  Louis  ▼.  Rus- 
sell, 110  Mo.  248,  20  L.RJk.  721,  22  S.  W. 
470;  Ex  parte  Botts,  —  Tex.  Crim.  Rep. 
— ,  44  L.RJl.(N.S.)   029,  154  S.  W.  221. 

The  city  has  the  right  to  regulate  an 
occupation  by  confining  the  conducting 
thereof  within  prescribed  limits. 

Ex  parte  Quong  Wo,  101  Cal.  220,  118 
Pae.  714;  Re  Montgomery,  103  Cal.  457, 
126  Pac.  1070,  Ann.  Cas.  1914A,  130;  Grum- 
bach  V.  Lelande,  154  Cal.  079,  98  Pac.  1059; 
Ex  parte  Lacey,  108  Cal.  320,  38  L.RJI. 
040,  49  Am.  St.  Rep.  93,  41  Pac.  411;  White 
V.  Bracelin,  144  Mich.  332,  107  N.  W.  1056, 
8  Ann.  Cas.  250;  Strauss  v.  Galesburg,  203 
IlL  234,  07  N.  E.  830;  Shea  v.  Muncie,  148 
Ind.  14,  40  N.  E.  138;  New  Orleans  v. 
Murat,  119  La.  1093,  44  So.  898;  Uttle 
Rock  T.  Reinman-Wolfort  Automobile  Co. 
107  Ark.  174,  155  S.  W.  105;  St.  Louis  v. 
Russell,  110  Mo.  248,  20  L.RJI.  721,  22 
8.  W.  470;  Ex  parte  Botts,  —  Tex.  Crim. 
Rep.  — ,  44  L.R.A.(N.S.)  029,  154  S.  W. 
221 ;  Barbier  v.  Connolly,  113  U.  S.  27,  28 
L.  ed.  923,  5  Sup.  Ct.  Rep.  357;  Soon  Hing 
T.  Crowley,  113  U.  S.  703,  28  L.  ed.  1145, 
6  Sup.  Ct  Rep.  730. 
SS4 


Mr.  Justice  MoKenna  delivered  the  opin- 
ion of  the  court: 

Habeas  corpus  prosecuted  in  the  supreme 
court  of  the  state  of  California  for  the  dis- 
charge of  plaintiff  in  error  from  the  cus- 
tody of  defendant  in  error,  chief  of  police 
of  the  city  of  Los  Angeles. 

Plaintiff  in  error,  to  whom  we  shall  refer 
as  petitioner,  was  convicted  of  a  misde- 
meanor for  the  violation  of  an  ordinance 
of  the  city  of  Los  Angeles  which  makes  it 
unlawful  for  any  person  to  establish  or 
operate  a  brickyard  or  brickkiln,  or  any 
establishment,  factory,  or  place  for  the 
manufacture  or  burning  of  brick  within 
described  limits  in  the  city.  Sentence  was 
pronounced  against  him  [405]  and  he  was 
committed  to  the  custody  of  defendant  in 
error  as  chief  of  police  of  the  city  of  Los 
Angeles. 

Being  so  in  custody  he  filed  a  petition  in 
the  supreme  court  of  the  state  for  a  writ  of 
habeas  corpus,  llie  writ  was  issued.  Sub- 
sequently defendant  in  error  made  a  return 
thereto,  supported  by  affidavits,  to  which 
petitioner  made  sworn  reply.  The  court 
rendered  judgment  discharging  the  writ  and 
remanding  petitioner  to  custody.  The  chief 
justice  of  the  court  then  granted  this  writ 
of  error. 

Ihe  petition  sets  forth  the  reason  for  re- 
sorting to  habeas  corpus  and  that  petitioner 
is  the  owner  of  a  tract  of  land  within  the 
limits  described  in  the  ordinance,  upon 
which  tract  of  land  there  is  a  very  valuable 
bed  of  clay,  of  great  value  for  the  manu- 
facture of  brick  of  a  fine  quality,  worth  to 
him  not  less  than  $100,000  per  acre,  or 
about  $800,000  for  the  entire  tract  for 
brickmaking  purposes,  and  not  exceeding 
$00,000  for  residential  purposes,  or  for  any 
purpose  other  than  the  manufacture  of 
brick.  That  he  has  made  excavations  of 
considerable  depth  and  covering  a  very  large 
area  of  the  property,  and  that  on  account 
thereof  the  land  cannot  be  utilized  for  resi- 
dential purposes  or  any  purpose  other  than 
that  for  which  it  is  now  used.  That  he 
purchased  the  land  because  of  such  bed  of 
clay  and  for  the  purpose  of  manufacturing 
brick ;  that  it  was,  at  the  time  of  purchase, 
outside  of  the  limits  of  the  city,  and  distant 
from-  dwellings  and  other  habitations,  and 
that  he  did  not  expi*ct  or  believe,  nor  did 
other  owners  of  property  in  the  vicinity 
expect  or  believe,  that  the  territory  would 
be  annexed  to  the  city.  That  he  has  erected 
expensive  machinery  for  the  manufacture 
of  bricks  of  fine  quality  which  have  been 
and  are  being  used  for  building  purposes 
in  and  about  the  city. 

That  if  the  ordinance  be  declared  valid, 
he  will  be  compelled  to  entirely  abandon  hia 

SS9  U.  8. 


l»lf. 


HADACHECK  ▼   SEBASTIAN. 


4OIMO0 


business  and  will  be  deprived  of  the  use  of 
his  property. 

[406]  That  the  manufacture  of  brick 
must  necessarily  be  carried  on  where  auit- 
sble  clay  is  found,  and  the  clay  cannot  be 
transported  to  some  other  location ;  and,  be- 
sides, the  clay  upon  his  property  is  particu- 
larly fine,  and  day  of  as  good  quality  can- 
not be  found  in  any  other  place  within  the 
city  where  the  same  can  be  utilised  for  the 
manufacture  of  brick.  That  within  the  pro- 
hibited district  there  is  one  other  brickyard 
besides  that  of  plaintiff  in  error. 

That  there  is  no  reason  for  the  prohibi- 
tion of  the  business;  that  its  maintenance 
cannot  be  and  is  not  in  the  nature  of  a  nui* 
lance  as  defined  in  §  8479  of  the  CiTil  Code 
of  the  state,  and  cannot  be  dangerous  or 
detrimental  to  health  or  the  morals  or 
safety  or  peace  or  welfare  or  convenienoo  ol 
the  people  of  the  district  or  eity. 

That  the  business  is  so  conducted  as  not 
to  be  in  any  way  or  degree  a  nuisanoe;  no 
noises  arise  therefrom,  and  no  noxious  odors, 
and  that  by  the  use  of  certain  means  (which 
are  described)  provided  and  the  situation  of 
the  brickyard  an  extremely  small  amount 
of  smoke  is  emitted  from  any  kiln,  and  what 
is  emitted  is  so  dissipated  that  it  is  not  a 
nuisance  nor  in  any  manner  detrimental  to 
health  or  comfort.  That  during  the  seven 
years  which  the  brickyard  has  been  conduct- 
ed no  complaint  has  been  made  of  it,  and  no 
attempt  has  ever  been  made  to  regulate  it. 

That  the  city  embraces  107.62  square  miles 
in  area  and  76  per  cent  of  it  is  devoted  to 
residential  purposes;  that  the  district  de- 
scribed in  the  ordinance  includes  only  about 
3  square  miles,  is  sparsely  settled,  and  con- 
tains large  tracts  of  unsubdivided  and  unoc- 
cupied land;  and  that  the  boundaries  of  the 
district  were  detemAned  for  the  sole  and 
ipecific  purpose  of  prohibiting  and  suppress- 
ing the  business  of  petitioner  and  that  of 
the  other  brickyard. 

That  there  are  and  were,  at  the  time  of 
the  adoption  of  the  ordinance,  in  other  dis- 
tricts of  the  city  thickly  built  up  with  resi- 
dences brickyards  maintained  more  detri- 
mental to  the  inhabitants  of  the  city.  That 
a  petition  was  filed,  [4071  signed  by  sever- 
al hundred  persons,  representing  such  brick- 
yards to  be  a  nuisance,  and  no  ordinance  or 
regulation  was  passed  in  regard  to  such  pe- 
tition, and  the  brickyards  are  operated  with- 
out hindrance  or  molestation.  That  other 
brickyards  are  permitted  to  be  maintained 
without  prohibition  or  regulation. 

That  no  ordinance  or  regulation  of  any 
kind  has  been  passed  at  any  time*  regulating 
or  attempting  to  regulate  brickyards,  or  in- 
quiry made  whether  they  could  be  main- 
tained without  being  a  nuisance  or  detri- 
mental to  health. 
•0  li.  ed. 


That  the  ordinance  does  not  state  a  publie 
offense,  and  is  in  violation  of  the  Constitu- 
tion of  the  state  and  the  14th  Amendment 
to  the  Constitution  of  the  United  SUtes. 

That  the  business  of  petitioner  is  a  lawful 

one,  none  of  the  materials  .used  in  it  ara 

{ combuatible,  the  machinery  is  of  the  moat 

approved  pattern,  and  its  conduct  will  no4 

create  a  nuisance. 

There  is  an  allegation  that  the  ordinance^ 
if  enforced,  fosters  and  will  foster  a  monop- 
oly, and  protects  and  will  protect  other  per- 
sons engaged  in  the  manufacture  of  brick 
in  the  city,  and  discriminates  and  will  dis- 
criminate against  petitioner  in  favor  of 
such  other  persons,  who  are  his  competitors^ 
and  will  prevent  him  from  entering  into 
competition  with  them. 

The  petition,  after  almost  every  para- 
graph, charges  a  deprivation  of  property,  the 
taking  of  property  without  compensation, 
and  that  the  ordinance  is  in  consequence  in- 
valid. 

We  have  given  this  outline  of  the  petition, 
as  it  presents  petitioner's  contentions,  with 
the  circumstances  (which  we  deem  most 
material)  that  give  color  and  emphasis  to 
them. 

But  there  are  substantial  traverses  made 
by  the  return  to  the  writ,  among  others,  a 
denial  of  the  charge  that  the  ordinance  waa 
arbitrarily  directed  against  the  business  of 
[408]  petitioner,  and  it  is  alleged  that 
there  is  another  district  in  which  brick- 
yards are  prohibited. 

There  was  a  denial  of  the  allegations  that 
the  brickyard  was  conducted  or  could  be 
conducted  sanitarily,  or  was  not  offensive  to 
health.  And  there  were  affidavits  supporting 
the  denials.  In  these  it  was  alleged  that  the 
fumes,  gases,  smoke,  soot,  steam,  and  dust 
arising  from  petitioner's  brickmaking  plant 
have  from  time  to  time  caused  sickness  and 
serious  discomfort  to  those  living  in  the 
vicinity. 

There  was  no  specific  denial  of  the  value 
of  the  property,  or  that  it  contained  depos- 
its of  clay,  or  that  the  latter  could  not  be 
removed  and  manufactured  into  brick  else- 
where. There  was,  however,  a  general  de- 
nial that  the  enforcement  of  the  ordinance 
would  "entirely  deprive  petitioner  of  his 
property  and  the  use  thereof." 

How  the  supreme  court  dealt  with  the  al- 
legations, denials,  and  affidavits  we  can 
gather  from  its  opinion.  The  court  said, 
through  Mr.  Justice  Sloes:  "The  district 
to  which  the  prohibition  was  applied  con- 
tains about  3  square  miles.  Tlie  petitioner 
is  the  owner  of  a  tract  of  land,  containing 
8  acres,  more  or  less,  within  the  district  de- 
scribed in  the  ordinance.  He  acquired  his 
land  in  1902,  before  the  territory  to  which 
the  ordinance  was  directed  had  been  annexed 


«)8-411 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tteic, 


to  the  city  of  Los  Angeles.  His  land  contains 
valuable  deposits  of  clay  suitable  for  the 
manufacture  of  brick,  and  he  has,  during  the 
entire  period  of  his  ownership,  used  the  land 
for  brickmaking,  and  has  erected  thereon 
:ilns,  machinery,  and  buildings  necessary  for 
such  manufacture.  The  land,  as  he  alleges, 
is  far  more  valuable  for  brickmaking  than 
for  any  other  purpose."  [166  Cal.  418, 
L.R.A.1016B,  1248,  132  Pac.  684.] 

The  court  considered  the  business  one 
which  could  be  regulated,  and  that  regula- 
tion was  not  precluded  by  the  fact  "that  the 
value  of  investments  made  in  the  business 
prior  to  any  legislative  action  will  be  greatly 
diminished,"  and  that  no  complaint  could 
be  based  upon  the  fact  that  [409]  petition- 
er had  been  carrying  on  the  trade  in  that 
locality  for  a  long  period. 

And,  considering  the  allegations  of  the 
petition,  the  denials  of  the  return,  and  the 
evidence  of  the  aflidavits,  the  court  said  that 
the  latter  tended  to  show  that  the  district 
created  has  become  primarily  a  residential 
section,  and  that  the  occupants  of  the  neigh- 
boring dwellings  are  seriously  incommoded 
by  the  operations  of  petitioner;  and  that 
such  evidence,  "when  taken  in  connection 
with  the  presumptions  in  favor  of  the  pro- 
priety of  the  legislative  determination,  is 
certainly  sufficient  to  overcome  any  conten- 
tion that  the  prohibition  [of  the  ordinance] 
was  a  mere  arbitrary  invasion  of  private 
right,  not  supported  by  any  tenable  belief 
that  the  continuance  of  the  business  .  .  . 
was  so  detrimental  to  the  interests  of  others 
as  to  require  suppression." 

The  court,  on  the  evidence,  rejected  the 
contention  that  the  ordinance  was  not  in 
good  faith  enacted  as  a  police  measure,  and 
that  it  was  intended  to  discriminate  against 
petitioner,  or  that  it  was  actuated  by  any 
motive  of  injuring  him  as  an  individual. 

The  charge  of  discrimination  between  lo- 
calities was  not  sustained.  The  court  ex- 
pressed the  view  that  the  determination  of 
prohibition  was  for  the  legislature,  and  that 
the  court,  without  regard  to  the  fact  shown 
in  the  return  that  there  was  another  district 
in  which  brickmaking  was  prohibited,  could 
not  sustain  the  claim  that  the  ordinance 
was  not  enacted  in  good  faith,  but  was  de- 
signed to  discriminate  against  petitioner 
and  the  other  brickyard  within  the  district. 
"The  facts  before  us,"  the  court  finally  said, 
''would  certainly  not  justify  the  conclusion 
that  the  ordinance  here  in  question  was  de- 
signed, in  either  its  adoption  or  its  enforce- 
ment, to  be  anything  but  what  it  purported 
to  be;  viz.,  a  legitimate  regulation,  operat- 
ing alike  upon  all  who  come  within  its 
terms." 

We  think  the  conclusion  of  the  court  is 
Justified  by  the  evidence  and  makes  it  unnec- 

sse 


essary  to  review  the  many  [410]  cases  cited 
by  petitioner  in  which  it  is  decided  that  the 
police  power  of  a  state  cannot  be  arbitrarily 
exercised.  The  principle  is  familiar,  but  in 
any  given  case  it  must  plainly  appear  to 
apply.  It  is  to  be  remembered  that  we  are 
dealing  with  one  of  the  most  essential  powers 
of  government,— -one  that  is  the  least  limit- 
able.  It  may,  indeed,  seem  harsh  in  its 
exercise,  usually  is  on  some  individual,  but 
the  imperative  necessity  for  its  existence 
precludes  any  limitation  upon  it  when  not 
exerted  arbitrarily.  A  vested  interest  can- 
not be  asserted  against  it  because  of  condi- 
tions once  obtaining.  Chicago  &  A.  R.  Co.  v. 
Tranbarger.  238  U.  S.  67,  78,  69  L,  ed.  1204, 
1211,  35  Sup.  Ct.  Rep.  678.  To  so  hold 
would  preclude  development  and  fix  a  city 
forever  in  its  primitive  conditions.  There 
must  be  progress,  and  if  in  its  march  private 
interests  are  in  the  way,  they  must  yield  to 
the  good  of  the  community.  The  logical  re* 
suit  of  petitioner's  contention  would  seem  to 
be  that  a  city  could  not  be  formed  or  en- 
larged against  the  resistance  of  an  occupant 
of  the  ground,  and  that  if  it  grows  at  all 
it  can  only  grow  as  the  environment  of  the 
occupations  that  are  usually  banished  to  the 
purlieus. 

The  police  power  and  to  what  extent  it 
may  be  exerted  we  have  recently  illustrated 
in  Reinman  v.  Little  Rock,  237  U.  S.  171, 
69  L.  ed.  900,  35  Sup.  Ct.  Rep.  611.  The 
circumstances  of  the  case  were  very  much 
like  those  of  the  case  at  bar,  and  give  reply 
to  the  contentions  of  petitioner,  especially 
that  which  asserts  that  a  necessary  and  law- 
ful occupation  that  is  not  a  nuisance  per  se 
cannot  be  made  so  by  legislative  declaration. 
There  was  a  like  investment  in  property,  en- 
couraged by  the  then  conditions;  a  like  re- 
duction of  value  and  deprivation  of  property 
was  asserted  against  the  validity  of  the  or- 
dinance there  considered;  a  like  assertion  of 
an  arbitrary  exercise  of  the  power  of  prohi- 
bition. Against  all  of  these  contentions,  and 
causing  the  rejection  of  them  all,  was  ad- 
duced the  police  power.  There  was  a  pro- 
hibition of  a  business,  lawful  in  itself,  there 
as  here.  It  was  a  livery  stable  there;  a 
brickyard  here.  They  differ  in  [411]  par- 
ticulars, but  they  are  alike  in  that  whidi 
cause  and  justify  prohibition  in  defined 
localities, —  that  is,  the  effect  upon  the 
health  and  comfort  of  the  community. 

The  ordinance  passed  upon  prohibited  the 
conduct  of  the  business  within  a  certain  de- 
fined area  in  Little  Rock,  Arkansas.  This 
court  said  of  it:  granting  that  the  business 
was  not  a  nuisance  per  se,  it  was  clearly 
within  the  police  power  of  the  state  to  regu- 
late it,  "and  to  that  end  to  declare  that  in 
particular  circumstances  and  in  particular 
localities  a  livery  stable  shall  be  deemed  "x 

239  U.  S. 


1915. 


HADACHECK  v.  SEBASTIAN. 


411-113 


nuisance  in  fact  and  in  law."  And  the  only 
limitation  upon  the  power  was  stated  to  be 
that  the  power  could  not  be  exerted  arbi- 
trarily or  with  unjust  discrimination.  There 
was  a  citation  of  cases.  We  thinlc  the  pres- 
ent case  is  within  the  ruling  thus  declared. 

There  is  a  distinction  between  Reinman  t. 
Little  Rock  and  the  case  at  bar.  There  a 
particular  business  was  prohibited  which 
was  not  affixed  to  or  dependent  upon  its  lo- 
cality; it  could  be  conducted  elsewhere. 
Here,  it  is  contended,  the  latter  condition 
does  not  exist,  and  it  is  alleged  that  the 
manufacture  of  brick  must  necessarily  be 
carried  on  where  suitable  clay  is  found,  and 
that  the  clay  on  petitioner's  property  can- 
not be  transported  to  some  other  locality. 
This  is  not  urged  as  a  physical  impossibility, 
but  only,  counsel  say,  that  such  transporta- 
tion and  the  transportation  of  the  bricks  to 
places  where  they  could  be  used  in  construc- 
tion work  would  be  prohibitive  "from  a 
financial  standpoint."  But  upon  the  evi- 
dence the  supreme  court  considered  the  case, 
as  we  understand  its  opinion,  from  the 
standpoint  of  the  offensive  effects  of  the  op- 
eration of  a  brickyard,  and  not  from  the 
deprivation  of  the  deposits  of  clay,  and  dis- 
tinguished Ex  parte  Kelso,  147  Cal.  609,  2 
L.IUL(N.S.)  796,  109  Am.  St.  Rep.  178, 
82  Pac.  241,  wherein  the  court  declared  in- 
valid an  ordinance  absolutely  prohibiting 
the  maintenance  or  operation  of  a  rock  or 
stone  quarry  within  a  certain  portion  of  the 
city  and  county  of  San  Francisco.  [412] 
The  court  there  said  that  the  effect  of  the  or- 
dinance was  "to  absolutely  deprive  the  own- 
ers of  real  property  within  such  limits  of  a 
valuable  right  incident  to  their  ownership, 
via.,  the  right  to  extract  therefrom  such 
rock  and  stone  as  they  may  find  it  to  their 
advantage  to  dispose  of."  The  court  ex- 
pressed the  view  that  the  removal  could  be 
regulated,  but  that  "an  absolute  prohibition 
of  such  removal  under  the  circumstances" 
could  not  be  upheld. 

In  the  present  case  there  is  no  prohibi- 
tion of  the  removal  of  the  brick  clay;  only  a 
prohibition  within  the  designated  locality 
of  its  manufacture  into  bricks.  And  to  this 
feature  of  the  ordinance  our  opinion  is  ad- 
dressed. Whether  other  questions  would 
arise  if  the  ordinance  were  broader,  and 
opinion  on  such  questions,  we  reserve. 

Petitioner  invokes  the  equal  protection 
clause  of  the  Constitution  and  charges  that 
it  is  violated  in  that  the  ordinance  (1) 
"prohibits  him  from  manufacturing  brick 
upon  his  property  while  his  competitors  are 
permitted,  without  regulation  of  any  kind, 
to  manufacture  brick  upon  property  situat- 
ed in  all  respects  similarly  to  that  of  plain- 
tiff in  error;"  and  (2)  that  it  "prohibits 
the  conduct  of  his  business  while  it  permits 
the  maintenance  within  the  same  district  of 
•0  li.  ed. 


any  other  kind  of  business,  no  matter  how 
objectionable  the  same  may  be,  eitiier  in  its 
nature  or  in  the  manner  in  which  it  is  con- 
ducted." 

If  we  should  grant  that  the  first  q[>ecifica- 
tion  shows  a  violation  of  classification,  that 
is,  a  distinction  between  businesses  which 
was  not  within  the  l^islative  power,  peti- 
tioner's contention  encounters  the  objection 
tliat  it  depends  upon  an  inquiry  of  fact 
which  the  record  does  not  enable  us  to  de- 
termine. It  is  alleged  in  the  return  to  the 
petition  that  brickmaking  is  prohibited  in 
one  other  district,  and  an  ordinance  is  re- 
ferred to  regulating  business  in  other  dis- 
tricts. To  this  plaintiff  in  error  replied 
that  the  ordinance  attempts  to  prohibit  the 
operation  of  certain  [413]  businesses  hav- 
ing mechanical  power,  and  does  not  prohibit 
the  maintenance  of  any  business  or  the  op- 
eration of  any  machine  that  is  operated  by 
animal  power.  In  other  words,  petitioner 
makes  his  contention  depend  upon  disput- 
able considerations  of  classification  and  up- 
on a  comparison  of  conditions  of  which  there 
is  no  means  of  judicial  determination,  and 
upon  which,  nevertheless,  we  are  expected 
to  reverse  legislative  action  exercised  upon 
matters  of  which  the  city  has  control. 

To  a  certain  extent  th%  latter  conunent 
may  be  applied  to  other  contentions;  and, 
besides,  there  is  no  allegation  or  proof  of 
other  objectionable  businesses  being  permit- 
ted within  the  district,  and  a  speculation  of 
their  establishment  or  conduct  at  some  fu- 
ture time  is  too  remote. 

In  his  petition  and  argument  something  is 
made  of  the  ordinance  as  fostering  a  monop- 
oly and  suppressing  his  competition  with 
other  bricknmkers.  The  charge  and  argu- 
ment are  too  illusive.  It  is  part  of  the 
charge  that  the  ordinance  was  directed 
against  him.  The  charge,  we  have  seen,  waa 
rejected  by  the  supreme  court,  and  we  find 
nothing  to  justify  it. 

It  may  be  that  brickyards  in  other  lo- 
calities within  the  city  where  the  same  con- 
ditions exist  are  not  regulated  or  prohibited^ 
but  it  does  not  follow  that  they  will  not  be» 
That  petitioner's  business  was  first  in  time 
to  be  prohibited  does  not  make  its  pro- 
hibition unlawful.  And  it  may  be,  as  said! 
by  the  supreme  court  of  the  state,  that  the- 
conditions  justify  a  distinction.  However,, 
the  inquiries  thus  suggested  are  outside  of 
our  province. 

There  are  other  and  subsidiary  conten- 
tions which,  we  think,  do  not  require  discus- 
sion. They  are  disposed  of  by  what  we  have 
said.  It  may  be  that  something  else  than 
prohibition  would  have  satisfied  the  condi- 
tions. Of  this,  however,  we  have  no  means 
of  determining,  and  besides,  we  cannot  de- 
clare invalid  the  exertion  of  a  power  which 
the  city  undoul)tedly  has  because  of  a  charge 

85T 


413-416 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  Tknc, 


that  it  does  [414]  not  exactly  accommodate 
the  conditionB,  or  that  some  other  exercise 
would  have  been  better  or  less  harsh.  We 
must  accord  good  faith  to  the  citj  in  the  ab- 
sence of  a  clear  showing  to  the  contrary  and 
an  honest  exercise  of  Judgment  upon  the  cir- 
cumstances which  induced  its  action. 

We  do  not  notice  the  contention  that  the 
ordinance  is  not  within  the  city's  charter 
powers,  nor  that  it  b  in  violation  of  the 
state  Constitution,  such  contentions  raising 
only  local  questions  which  must  be  deemed 
to  have  been  decided  adversely  to  petitioner 
by  the  supreme  court  of  the  state. 

Judgment  affirmed. 


ELI  P.  WILLIAMS,  Elmer  Williams,  and 
Charles  H.  Williams,  Plffs.  in  Err., 

V. 

BEN  F.  JOHNSON. 
(See  S.  C.  Reporter's  ed.  414-421.) 

Oonstltntional  law  —  impairing  contract 
obligations  —  due  process  of  law  — 
Indian  allotments. 

Congress,  in  the  exercise  of  its  ple- 
nary control  over  Indians,  could,  notwith- 
standing the  contract  and  due  process  of 
law  clauses  of  the  Federal  Constitution,  pro- 
vide, as  it  did  in  the  act  of  April  21,  1004 
(33  Stat  at  L.  204,  chap.  1402),  that  the 
restrictions  on  alienation  by  allottees  of  In- 
dian blood  under  the  act  of  July  1,  1002 
(32  SUt.  at  L.  641,  chap.  1362 ),  which  that 
act  imposes,  could  be  removed  by  the  Secre- 
tarv  of  the  Interior  upon  application  to  the 
Indian  agent  in  charge  if  the  latter  should 
be  satisfied,  upon  a  uill  investigation,  that 
the  removal  of  the  restrictions  was  for  the 
interest  of  the  allottee. 
CFor  othe^  cases,  see  Conntltuttonal  Law,  lY. 

b.  6;   IV.  ff.  2;   IndUns,   WllU.  in  Digest 

8ap.  Ct  1908.1 

[No.  110.] 

Submitted  December  6,  1915.    Decided  De- 
cember 20,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Oklahoma  to  review  a  decree 
which  affirmed  a  decree  of  the  District  Court 
of  Grady  County,  in  that  state,  in  favor  of 
plaintiff  in  a  suit  to  quiet  title.    Affirmed. 

Note. — Generally  as  to  what  laws  are 
Toid  as  impairing  obligation  of  contracts — 
oee  notes-  to  Franklin  County  Grammar 
School  V.  Bailey,  10  L,RJi.  405;  Bullard 
▼.  Northern  P.  R.  Co.  11  L.R.A.  246;  Hen- 
derson V.  State  Soldiers  &  8.  Monument 
Comrs.  13  L.RJL.  160;  and  Fletcher  v.  Peck, 
3  L.  ed.  U.  S.  162. 

On  power  of  Congress  over  Indians — see 
note  to  Worcester  v.  Georgia,  8  L.  ed.  U. 
S.  484. 
^53 


See  same  case  below,  32  Okla.  247,  122 
Pac.  485. 
The  facts  are  stated  in  the  opinion. 

Messrs.  EU  P.  Williams,  Elmer  Wil- 
liams, and  Charles  H.  Williams,  in  propriif 
perMonia,  submitted  the  caiyM  for  plaintiffs 
in  error: 

Congress  is  without  power  to  change  a 
contract  or  agreement  for  a  valuable  con- 
sideration with  an  individual  Indian  allot- 
tee. 

Choate  v.  Trapp,  224  U.  S.  665,  56  L.  ed. 
941,  32  Sup.  Ct.  Rep.  565;  Jones  v.  Meehan, 
175  U.  S.  1,  44  L.  ed.  49,  20  Sup.  Ct.  Rep. 
L 

The  Choctaw  and  Chickasaw  Nations  have 
complete  title  except  that  said  Nations 
have  no  right  to  transfer  or  alienate  the 
land  except  to  the  United  States,  or  with 
its  consent. 

Marchie  Tiger  v.  Western  Invest.  Co.  221 
U.  S.  286,  55  L.  ed,  738,  31  Sup.  Ct.  Rep. 
578. 

Where  Congress  has  passed  an  act,  and 
property  rights  or  contract  rights  are  ac- 
quired under  said  act,  thereafter  Congress 
is  without  power  to  pass  an  act  annulling 
or  in  any  way  affecting  the  rights  so  ac- 
quired under  the  former  act  of  Congress. 

Carondelet  Canal  &  Nav.  Co.  v.  Louisiana, 
233  U.  S.  362,  58  L.  ed.  1001,  34  Sup.  Ct 
Rep.  627. 

Mr.  Reford  Bond  submitted  the  cause 
for  defendant  in  error.  Messrs.  Alger  Mel- 
ton and  Adrian  Melton  were  on  the  brief : 

No  contract  or  agreement  can  exist  as 
between  the  government  and  these  Indians 
by  reason  of  the  treaty. 

United  Stotes  v.  Kagama,  118  U.  S.  375, 
30  L.  ed.  228,  6  Sup.  Ct.  Rep.  1109;  Lone 
Wolf  V.  Hitchcock,  187  U.  S.  553,  47  L. 
ed.  299,  23  Sup.  Ct.  Rep.  216;  Choctaw 
Nation  v.  Hitchcock,  119  U.  S.  1,  30  L. 
ed.  306,  7  Sup.  Ct.  Rep.  75;  Stephens  T. 
Cherokee  Nation,  174  U.  S.  445,  43  L.  ed. 
1041,  19  Sup.  Ct.  Rep.  722;  Starr  v.  Long 
Jim,  227  U.  S.  613,  57  L.  ed.  670,  33  Sup. 
Ct.  Rep.  358. 

[416]  Mr.  Justice  McKenna  delivered 
the. opinion  of  the  court: 

Suit  to  quiet  title,  brought  by  Johnson, 
defendant  in  error,  in  the  district  court  of 
Grady  county,  state  of  Oklahoma,  against 
plaintiffs  in  error. 

The  contention  of  defendant  in  error  is 
that  the  land  was  an  allotment  to  one  Selin 
Taylor,  a  member  of  the  Choctaw  Tribe  of 
Indians  by  blood;  that  on  November  22, 
1904,  a  patent  was  duly  issued  to  him,  exe- 
cuted by  the  proper  officers  of  that  Nation 
and  the  Chickasaw  Nation,  and  the  United 

2S9  U.  S. 


191& 


WILLIAMS  T.  JOHNSON. 


416-418 


States,  and  that  at  the  time  of  the  allotment 
the  land  was  inalienable. 

On  February  9,  1906,  the  United  States 
Indian  agent  issued  to  Taylor  a  certificate 
(No.  2458)  removing  Taylor's  disabilities  re- 
specting the  alienation  of  the  land,  and  on 
February  16th  Taylor  conveyed  the  land  by 
warranty  deed  to  C.  B.  Campbell,  and  the 
latter  and  his  wife,  on  March  13th  following, 
conveyed  the  land  by  like  deed  to  Johnson. 
The  deeds  were  duly  recorded. 

On  November  15,  1906,  Taylor  and  his 
wife  conveyed  the  land  by  warranty  deed  to 
James  £.  Whitehead,  and  on  October  22, 
1909,  Whitehead  conveyed  the  land  to  one 
McNeill,  who,  on  the  25th  of  that  month, 
conveyed  to  Johnson. 

Johnson's  petition  alleged  that  the  claim 
of  title  of  the  defendants  ( plaintiffs  in  error 
here)  was  based  upon  a  power  of  attorney 
covering  the  land,  executed  by  Taylor  on 
March  11,  1907,  and  charged  that  the  power 
of  attorney  constituted  a  cloud  upon  his 
(Johnson's)  title. 

The  answer  of  the  defendants  admitted 
the  allotment  to  Taylor  and  the  execution  of 
the  various  instruments  of  conveyance  from 
him  and  his  grantees  to  Johnson,  and  al- 
leged that  Taylor  received  his  allotment  un- 
der an  act  of  Congress  of  July  1,  1902, 
known  as  an  "Act  to  Ratify  and  Confirm  an 
Agreement  with  the  [417]  Choctaw  and 
Chickasaw  Tribes  of  Indians,  and  for  Other 
Purposes"  [32  Stat,  at  L.  641,  chap.  1362], 
and  that  the  act  was  called  an  "agreement" 
and  was  ratified  by  Congress  and  the  voters 
of  those  tribes,  and  was  a  binding  contract 
upon  the  United  States  and  the  Indians  of 
those  tribes,  and  particularly  Taylor.  That 
Taylor  is  not  a  ward  of  the  United  States 
and  was  not  at  the  time  the  land  was  allot- 
ted, and  that  by  an  act  of  Congress  of  March 
3,  1901  (31  Stat,  at  L.  1447,  chap.  869) 
Taylor  was  made  a  citizen  of  the  United 
States,  with  the  rights,  privileges,  and  im- 
munities of  such. 

That  the  Choctaw  and  CHiickasaw  Nations, 
and  not  the  United  States,  are  the  grantors 
in  the  patent  to  Taylor,  and  imposed  re- 
strictions upon  him  against  the  alienation 
of  the  land,  and  have  not  consented  to  the 
removal  of  those  restrictions.  That  the 
deeds  executed  by  Taylor  under  which  John- 
son claimed  title  were  in  violation  of  such 
restrictions  and  therefore  void.  That  the 
patent  to  Taylor  was  issued  by  authority  of 
S  29  of  the  act  of  Congress  of  June  28,  1898 
(30  Stat,  at  L.  495,  chap.  517),  and  con- 
tained the  following  clause:  "Subject,  how- 
ever, to  the  provisions  of  the  act  of  Con- 
gress approved  July  1st,  1902  (32  Stat,  at 
L.  641,  chap.  1362)." 

That  Taylor  and  the  defendants  claim 
title  to  the  land  under  that  agreement  and 
60  L.  ed. 


patent;  that  the  restrictions  imposed  upon 
the  alienation  of  the  land  were  for  the  pro- 
tection and  benefit  of  the  members  of  the 
tribes;  that  Taylor  was  a  full-blood  Choc- 
taw Indian  and  a  member  of  the  Choctaw 
tribe,  did  not  understand  the  English  lan- 
guage, was  wholly  ignorant  of  laud  values, 
was  in  need  of  and  entitled  to  the  protection 
and  benefit  of  the  restrictions  so  imposed; 
and  that  such  "protection  was  of  great  value 
and  was  to  him  property  as  much  as  the 
land  itself." 

That  the  deeds  executed  by  Taylor  to 
Campbell  and  Whitehead  were  in  open  vio- 
lation of  the  restrictions  against  alienation 
in  the  act  of  Congress  of  July  1,  1902,  supra, 
under  which  Taylor  was  allotted  the  land, 
and  also  in  [418]  violation  of  the  restric- 
tions upon  alienation  contained  in  the  pat- 
ent from  the  Choctaw  and  Chickasaw  Na- 
tions to  him,  and  were  executed  under  an 
unconstitutional  act  of  Congress  approved 
April  21,  1904  (33  SUt.  at  L.  204,  chap. 
1402).  That  the  object  of  that  act  of 
Congress  and  of  the  certificate  to  Tay- 
lor was  to  remove  the  restrictions  upon 
the  alienation  of  the  land,  and  that 
they  impair  the  obligation  of  the  con- 
tract or  binding  agreement  "upon  the  United 
States  and  upon  the  Choctaw  and  Chickasaw 
Nations  and  upon  all  Choctaws  and  Chicka- 
saws,"  and  especially  Seiin  Taylor,  and  are 
repugnant  to  the  act  of  Congress  under 
which  Taylor  was  allotted  the  land,  and  also 
to  the  Constitution  of  the  United  States 
and  the  clause  in  the  5thAmendment  thereof 
which  provides  that  no  person  siial!  be  de- 
prived of  his  property  without  due  process 
of  law.  A  cancelation  of  the  deeds  was 
prayed,  the  annulment  of  the  interest  of 
Johnson  in  the  land  and  the  rents  thereof, 
and  judgment  for  the  possession  of  the  land. 

A  demurrer  to  the  answer  was  sustained, 
and  defendants  (plaintiffs  in  error)  declin- 
ing to  plead  further,  a  decree  was  entered 
quieting  Johnson's  title  to  the  land.  Upon 
appeal  the  judgment  was  sustained  by  the 
supreme  court  of  the  state,  and  error  was 
prosecuted  from  this  court. 

The  record  presents  the  general  question. 
Was  the  land  alienable  by  Taylor  T  This 
depends  upon  the  validity  of  certificate  No. 
2458,  issued  to  Taylor,  and  that  again  on 
the  validitv  of  the  act  of  Congress  of  April 
21,  1904  (83  Stat,  at  L.  204,  chap.  1402). 
This  act  removed  the  restrictions  imposed 
by  the  act  of  July  1 ,  1902,  upon  allottees  of 
either  of  the  Five  Civilized  Tribes  who  were 
not  of  Indian  blood,  and  provided  for  the 
removal  by  the  Secretary  of  the  Interior  of 
all  restrictions  upon  the  alienation  of  all 
other  allottees  of  said  tribes  (with  certain 
exceptions)  upon  application  to  the  Indian 
agent  in  charge  of  such  tribes,  il  the  agent 


418-421 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tsim» 


was  Batisfled,  upon  full  investigation  of  each 
individual  [419]  case,  that  the  removal  of 
restrictions  was  for  the  interest  of  the  al- 
lottee. 

The  certificate  shows  that  the  implication 
was  made  by  Taylor,  and  yet  plaintiffs  in 
error  assert  the  invalidity  of  boUi  certificate 
and  act  because  they  are,  it  is  contended, 
repugnant  to  the  act  of  Congress  of  July  1, 
1002  (32  SUt.  at  L.  641,  chap.  1362),  which, 
it  is  contended,  constituted  a  contract  be- 
tween the  United  States  and  the  Choctaw 
and  Chickasaw  Nations  and  all  Choctaws 
and  Chickasaws;  that  the  restriction  upon 
alienation  was  a  protection  to  Taylor 
"against  his  own  improvident  acts,"  that  it 
was  '*not  a  personal  privilege  and  repeal- 
able,"  but  was  "an  incident  attached  to  the 
land  itself,"  and  "was  to  him  property  as 
much  as  the  land  itself." 

The  act  of  July  1,  1902,  is  entitled,  "An 
Act  to  Ratify  and  Confirm  an  Agreement 
with  the  Choctaw  and  Chickasaw  Tribes  of 
Indians,  and  for  Other  Purposes."  It  re- 
cites that  "in 'consideration  of  the  mutual 
undertakings  here  contained,  it  is  agreed" 
that  (§16)  all  land  shall  be  alienable  after 
issue  of  patent  in  certain  quantities  and  at 
certain  times,  "provided  that  such  land  shall 
not  be  alienable  by  the  allottee  or  his  heirs 
at  any  time  before  the  expiration  of  the 
Choctaw  and  Chickasaw  tribal  governments 
for  less  than  its  appraised  value;"  that  (§ 
68)  "no  act  of  Congress  or  treaty  provision, 
nor  any  provision  of  the  Atoka  agreement, 
inconsistent  with  this  agreement,  shall  be 
in  force  in  said  Choctaw  and  Chickasaw 
Nations;"  and,  further  (§  73),  that  "this 
agreement  shall  be  binding  upon  the  United 
States  and  upon  the  Choctaw  and  Chicka- 
saw Nations  and  all  Choctaws  and  Chicka- 
saws, when  ratified  by  Congress  and  by  a 
majority  of  the  whole  number  of  votes  cast 
by  the  legal  voters  of  the  Choctaw  and 
Chickasaw  Tribes  in  the  manner  following: 


n 


It  is  conceded  by  plaintiffs  in  error  that 
an  act  of  Congress  can  supersede  a  prior 
treaty,  but  they  insist  that  it  is  [420]  well 
settled  "that  (>>ngress  is  without  power  to 
chancre  a  contract  or  agreement  for  a  valua- 
ble consideration  with  an  individual  Indian 
allottee."  Choate  v.  Trapp,  224  U.  S.  665, 
56  L.  ed.  041,  32  Sup.  Ct.  Rep.  565,  and 
Jones  V.  Meehan,  175  U.  S.  1,  44  L.  ed.  40, 
20  Sup.  Ct.  Rep.  1,  are  cited,  and  incidental- 
ly Marchie  Tiger  v.  Western  Invest.  Co.  221 
TJ.  S.  286,  55  L.  ed.  738,  31  Sup.  Ct.  Rep. 
678,  and  Mullen  v.  United  SUtes,  224  U.  S. 
448,  56  L.  ed.  834,  32  Sup.  Ct.  Rep.  404. 

The  cases  do  not  apply.  It  has  often 
been  decided  that  the  Indians  are  wards  of 
the  nation,  and  that  Congress  has  plenary 
control  over  tribal  relations  and  property, 
S«0 


and  that  this  power  continues  after  the  In- 
dians are  made  citizens,  and  may  be  ezer- 
eiafid  as  to  restrictions  upon  alienation. 
Marchie  Tiger  v.  Western  Invest.  Co.  supra. 
Against  this  ruling  Choate  t.  Trapp  does 
not  militate.  In  the  latter  ease  it  was  de- 
cided that  taxation  could  not  be  imposed 
upon  allotted  land  a  patent  to  which  was 
issued  under  an  act  of  Congress  containing 
a  provision  "that  the  land  should  be  non- 
taxable" for  a  limited  time;  and,  excluding 
the  application  of  the  Marchie  Tiger  Case, 
it  was  said  that  exemption  from  taxation 
"and  nonalienability  were  two  separate  and 
distinct  objects."  And  further,  'H>ne  con- 
veyed a  right  and  the  other  imposed  a  limi- 
tation." The  power  to  do  the  latter  was 
declared,  and  it  was  said  "the  right  to  re- 
move the  restriction  [limitation  upon  alien- 
ation]  was  in  pursuance  of  the  power  under 
which  Congress  could  legislate  as  to  the 
status  of  the  ward,  and  lengthen  or  shorten, 
the  period  of  disability.  But  the  provision 
that  the  land  should  be  nontaxable  was  a 
property  right,  which  Congress  undoubtedly 
had  the  power  to  grant.  That  right  fully- 
vested  in  the  Indians  and  was  binding  upoiL 
Oklahoma." 

Jones  V.  Meehan,  supra,  is  an  instance  of 
the  same  principle,  and  is  not  opposed  Uy 
the  power  of  Congress  to  remove  restrictions 
upon  alienation.  And  there  is  nothing  an- 
tagonistic to  the  cited  cases  in  Mullen  v.. 
United  States,  supra. 

A  question  was  intimated  in  the  Marchie 
Tiger  Case  whether  a  [421]  grantee  of  an 
Indian  could  avail  himself  of  the  Indian's 
right,  if  he  had  any,  to  assert  the  unconsti- 
tutionality of  an  act  of  Congress,  and  it  is> 
still  more  questionable  whether  plaintiffs  in 
error  can  be  heard  to  urge  the  rights  of  the 
Choctaw  and  Chickasaw  Nations.  However, 
we  may  reserve  opinion.  Those  nations  are 
not  parties  to  this  suit  and  no  contract, 
rights  of  Taylor  have  been  violated. 

Judgment  atlirmed. 


CHICAGO,  ROCK  ISLAND,  &  PAaFIC 
RAILWAY  COMPANY,  and  Frank  Drake,. 
Plffs.  in  Err., 

V. 

DANIEL  C.  WHTTEAKER. 

(See  8.  C.  Reporter's  ed.  421-425.) 

Error  to  state  court  —  scope  of  reviewr 
—  removal  of  causes. 

1.  Whether  or  not  the  petition  states  w^ 

•  Note. — On  error  to  state  court  where  re- 
morval  to  Federal  court  was  sought — see  note- 
to  Williams  v.  First  Nat.  Bank,  64  L.  ed. 
U.  S.  626. 

2S9  U.  S^ 


lOlJ. 


CHICAGO,  R.  L  &  P.  R.  CO.  t.  WHITBAKEB. 


cause  of  action  against  a  resident  joined 
as  oodefendant  with  a  nonresident  is  a  mat- 
ter of  local  law  which  is  not  open  on  a  writ 
of  error  from  the  Federal  Supreme  Court, 
presenting  the  question  whether  the  joinder 
was  frftuaulently  made  for  the  purpose  of 

frcventing  a  removal  to  a  Federal  court. 
For  other  cases,  see  Appeal  and  Error,  2072- 
2123.  in  Digest  Sap.  Ct.  1908.] 

Removal  of  causes  —  separable  contro- 
versy —  fraudulent  Joinder. 

2.  Tlie  motive  of  plaintiff  in  joining  an 
impecunious  resident  railway  employee  as 
a  codefendant  with  a  nonresident  railway 
eorporation  in  a  n^ligence  suit  is  not  ma- 
terial upon  the  question  of  the  right  of  the 
latter  to  remove  the  caxise  to  a  Federal 
wart  if  such  defendants  are  jointly  liable 
uider  the  local  law. 

[For  other  cases,  see  Removal  of  Causes,  lY. 
C  in  Digest  Sup.  Ct  1908.] 

Removal  of  causes  —  fraudulent  Joinder 
—  snlHcienoy  of  petition. 

3.  Allegations  in  the  petition  by  which 
a  nonresident  railway  company  joined  aa 
codefendant  with  a  resident  employee  in  a 
negligence  suit  seeks  to  remove  the  case  to 
a  Federal  court  on  the  ground  of  fraudu- 
lent joinder  are  insufficient  if  they  merely 
traverse  the  allegations  upon  which  the  lia- 
bility of  the  resident  defendant  is  rested, 
where  no  negligent  act  or  omission  person- 
al to  the  railway  company  is  charged  in  the 
petition  in  the  state  court,  which,  tested  by 
the  local  law,  states  a  case  of  joint  liability, 
the  company's  liability,  like  that  of  the  em- 
ployee, being  in  effect  based  upon  his  alleged 
aegligence. 

[For  other  cases,  see  Removal  of  Caoses.  IV. 
b;  VI.  d,  iu  Dlcest  Sup.  Ct.  1908.] 

[No.  111.] 

Submitted  December  8,  1915.    Decided  De- 
cember 20,  1916. 

IN  EKROK  to  the  Supreme  Court  of  the 
State  of  Missouri  to  review  a  judgment 
which  affirmed  a  judgment  of  the  Circuit 
Court  of  Clinton  County,  in  that  state,  in 
favor  of  plaintiff  in  an  action  against  a  for- 
eign railway  company  and  a  resident  em- 
ployee, which  the  corporate  defendant  had 
attempted  to  remove  to  a  Federal  court. 
Affirmed. 

As  to  removal  of  causes  in  cases  of  sep- 
arable controversy — see  notes  to  Miller  v. 
Clifford,  6  L.R.A.(N.S.)  50;  Sloane  v.  An- 
derson, 29  L.  ed.  TJ.  S.  899;  Butler  v.  Na- 
tional Home  for  Disabled  Volunteer  Sol- 
diers, 86  L.  ed.  U.  8.  346;  Merchants'  Cotton 
Press  &  S.  Co.  v.  Insurance  Co.  of  N.  A. 
38  L.  ed.  U.  S.  195;  and  Torrence  v.  Shedd« 
36  L,  ed.  U.  8.  528. 

On  fraud  in  joining  a  resident  as  co- 
defendant  with  a  nonresident  defendant  for 
the  purpose  of  preventing  a  removal  to  the 
Federal  courts  on  the  ground  of  diverse 
citizenship,  see  note  to  Boatmen's  Bank  v. 
Fritslen,  22  L.R.A.(NJ3.)  1236. 
•a  L.  e4. 


See  same  case  below,  252  Mo.  438,  160 

6  W.  1009. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Paul  B.  Wallcer  and  H.  Jj, 
Bell  submitted  the  cause  for  plaintiffs  in 
error: 

A  simple  and  conclusive  test  of  the  suffi- 
ciency of  the  allegations  of  the  petition 
for  removal  and  the  accompanying  affida- 
vits is  whether  or  not  such  facts,  if  pleaded 
in  an  answer,  would  have  been  subject  to 
demurrer  on  the  ground  that,  as  a  matter 
of  law,  and  being  admitted  to  be  true,  they 
would  not  be  a  defense  so  far  as  the  de- 
fendant Drake  is  concerned. 

Little  York  Gold-Washing  &  Water  Co. 
V.  Kcyes,  96  U.  S.  199,  24  L.  ed.  656. 

If  the  state  court  had  granted  the  re- 
moval, and  the  plaintiff  in  the  Federal  court 
had  filed  a  motion  to  remand  without  tak- 
ing direct  issue  on  the  facts  alleged  in  the 
petition  for  removal  and  acompanying  af- 
fidavits, the  motion  to  remand  would  have 
been  but  the  filing  of  a  demurrer,  which 
would  have  raised  only  the  legal  question 
whether,  upon  the  facts  stated  in  the  peti- 
tion for  removal  and  accompanying  affida- 
vits, a  case  for  removal  was  made  out. 

Kentucky  v.  Powers,  201  U.  S.  1,  33-35, 
50  L.  ed.  633,  648,  649,  2G  Sup.  Ct.  Kep. 
387,  5  Ann.  Cas.  602;  Dishon  v.  Cincin- 
nati, N.  0.  &  T.  P.  R.  Co.  06  C.  C.  A.  345, 
133  Fed  471 ;  Hunter  v.  Illinois  C.  R.  Co. 
110  C.  C.  A.  459,  188  Fed.  649;  Gibson 
V.  Chesapeake  &  0.  R.  Co.  131  C.  C.  A. 
332,  215  Fed.  26. 

The  state  court  has  no  power  to  try 
questions  of  fact  arising  upon  the  petition, 
but  must  accept  the  facts  therein  alleged 
as  true. 

Foster,  Fed.  Pr.  5th  ed.  $  654. 

In  holding  that  the  question  for  determi- 
nation was  confined  to  the  consideration  of 
whether  the  petition  on  its  face  stated  a 
joint  cause  of  action,  the  Missouri  courts 
ignored  the  long  and  well  settled  rule  to 
the  contrary. 

Black's  Dillon,  Removal  of  Causes,  §§  76, 
101;  Moon,  Removal  of  Causes,  §  177; 
Stone  T.  South  Carolina,  117  U.  S.  430, 
432,  29  L.  ed.  962,  963,  6  Sup.  Ct  Rep. 
799;  Carson  v.  Hyatt,  118  U.  S.  279,  287, 
30  L.  ed.  107,  169,  6  Sup.  Ct.  Rep.  1050; 
Burlington,  C.  R.  &  N.  R.  Co.  v.  Dunn,  122 
U.  S.  513,  615,  516,  30  L.  ed.  1159,  1160, 

7  Sup.  Ct.  Rep.  1262. 

Where  the  facts  stated  in  the  petition 
for  removal  show  a  cause  properly  remov- 
able from  a  state  to  a  Federal  court,  the 
state  court  has  no  jurisdiction  to  pass  final- 
ly upon  them;  that  right  is  only  for  a  Fed- 
eral court,  it  having  the  exclusive  province 
of  passing  upon  such  questions  of  fact. 


6UFBEME  COURT  OF  THE  UNITED  STATES. 


Oct.  Iknc, 


Texas  &  P.  B.  Go.  t.  Eastin,  214  U.  S. 
163,  159,  63  L.  cd.  046,  060,  20  Sup.  Ct. 
Rep.  664;  Chesapeake  &  0.  R.  Co.  t.  Mc- 
Cabe,  213  U.  S.  207,  63  L.  ad.  766,  20  Sup. 
Ct.  Rep.  430;  Iowa  C.  R.  Co.  v.  Bacon, 
236  U.  S.  306,  310,  69  L.  ed.  601,  603,  36 
Sup.  Ct.  Rep.  367;  Chicago,  R.  I.  &  P.  R. 
Co.  y.  Dowell,  229  U.  S.  102,  113,  57  L.  ed. 
1000,  1095,  33  Sup.  Ct.  Rep.  684;  Rea  T. 
Standard  Mirror  Co.  158  N.  C.  24,  73  S. 
E.  116;  Donovan  v.  Wells,  F.  &  Co.  22 
I..R.A.(N.S.)  1250,  04  C.  C.  A.  600,  160 
Fed.  368;  Hunter  v.  Illinois  C.  R  Co. 
110  C.  C.  A  459,  188  Fed.  648;  Gibson 
▼.  Chesapeake  &  0.  R.  Co.  131  C.  C.  A. 
832,  216  Fed.  26;  Boatman's  Bank  v.  Fritz- 
len,  75  Kan.  488,  22  L.RA.(N.S.)  1235, 
80  Pac  015,  68  C.  C.  A  288,  135  Fed.  650, 
653,  212  U.  S.  364,  373,  53  L.  ed.  551, 
667,  20  Sup.  Ct.  Rep.  366. 

The  fact  that,  following  an  improper 
refusal  of  a  state  court  to  grant  a  removal, 
a  jury  returns  a  joint  verdict  against  both 
the  nonresident  and  the  resident  defendants, 
is  of  no  importance. 

Whitcomb  v.  Smithson,  176  U.  S.  636, 
638,  44  L.  ed.  303,  305,  20  Sup.  Ct.  Rep. 
248;  Illinois  C.  R.  Co.  v.  Outland,  160  Ky. 
714,  170  S.  W.  48;  Illinois  C.  R.  Co.  v. 
Sheegog,  215  U.  S.  308,  316,  64  L.  ed. 
208,  211,  30  Sup.  Ct.  Rep.  101. 

So,  it  has  been  held  by  this  court  that  a 
decision  upon  the  trial  in  a  state  court, 
after  a  petition  for  removal  has  been  de- 
nied, to  the  effect  that  there  is  no  liabil- 
ity against  the  resident  defendant,  does 
not  show  that  the  case  was  removable  at 
the  time  the  original  petition  therefor  was 
filed,  nor  does  it  make  it  removable  at  the 
time  of  such  ruling  by  the  trial  court. 

Whitcomb  v.  Smithson,  175  U.  S.  635, 
44  L.  ed.  303,  20  Sup.  Ct.  Rep.  248;  Ala- 
bama G.  S.  R.  Co.  V.  Thompson,  200  U.  S. 
217,  50  L.  ed.  447,  26  Sup.  Ct.  Rep.  161, 
4  Ann.  Cas.  1147;  Lathrop,  S.  &  H.  Co.  v. 
Interior  Constr.  &  Improv.  Co.  216  U.  S. 
246,  261,  64  L.  ed.  177,  170,  30  Sup.  Ct. 
Rep.  76;  American  Car  &  Foundry  Co.  t. 
Kettlehake,  236  U.  S.  311,  315,  316,  50 
L.  ed.  594,  696,  597,  36  Sup.  Ct.  Rep.  356. 

The  action  of  a  court  or  jury  upon  the 
merits  of  a  controversy  cannot  control  or  be 
persuasive  upon  a  consideration  of  the  ques- 
tion of  jurisdiction.  It  is  fundamental,  as 
this  court  has  so  frequently  held,  that  the 
question  of  jurisdiction  must  be  deter- 
mined by  and  only  by  the  record  as  it  stood 
at  the  time  the  petition  for  removal  and  its 
accompanying  documents  were  filed. 

Sears  v.  Atchison,  T.  &  S.  F.  R.  Co.  163 
Mo.  App.  711,  147  S.  W.  860. 

The  decision  of  this  court  in  Wecker  t. 
National  Enameling  k  Stamping  Co.  204 
U.   S.   176,   185,   186,  61   L.  ed.  430,  435, 


436,  27  Sup.  Ct.  Rep.  184,  0  Ann.  Cas.  767, 
seems  conclusive  of  the  situation  now  be- 
fore the  court. 

See  also  Illinois  C.  R.  Co.  y.  Sheegog; 
215  U.  S.  308,  316,  64  L.  ed.  208,  211,  80 
Sup.  Ct.  Rep.  101 ;  Chesapeake  &  O.  R.  Co. 
V.  Cockrell,  232  U.  S.  146,  164,  68  L.  ad. 
644,  547,  34  Sup.  Ct.  Rep.  278. 

Mr.  Paul  E.  Walker  filed  a  separate  brief 
for  plaintiffs  in  error: 

False  and  fraudulent  devices  conceived 
for  the  purpose  of  preventing  a  litigant 
from  exercising  a  guaranteed  right  of  re- 
moval have  been  unequivocally  condemned. 

Arapahoe  County  v.  Kansas  P.  R  Co. 
4  DilL  277,  Fed.  Cas.  No.  502;  Wecker  ▼. 
National  Enameling  &  Stamping  Co.  204 
U.  S.  176,  185,  186,  61  L.  ed.  430,  436,  486, 
27  Sup.  Ct.  Rep.  184,  9  Ann.  Cas.  767; 
Chesapeake  &  O.  R.  Co.  v.  Cockrell,  232  U. 
S.  146,  164,  58  L.  ed.  644,  647,  34  Sup.  Ci. 
Rep.  278. 

The  verdict  of  the  jury  in  the  state  court 
against  both  defendants  cannot  be  taken  as 
proof  that  the  removal  was  properly  de- 
nied. It  has  long  been  the  settled  law  that 
neither  the  decision  of  a  court  nor  the  ver- 
dict of  a  jury,  either  for  or  against  a 
resident  defendant,  can  be  considered  in 
the  determination  of  the  question  of  juris- 
diction upon  a  petition  for  removaL  A 
ruling  or  decision  on  the  merits  cannot  re- 
late back  and  determine  the  correctness  of 
a  ruling  on  the  question  of  jurisdiction. 

Whitcomb  v.  Smithson,  175  U.  S.  635,  638, 
44  L.  ed.  303,  305,  20  Sup.  Ct.  Rep.  248; 
Illinois  C.  R.  Co.  v.  Sheegog,  216  U.  S. 
308,  316,  54  L.  ed.  208,  211,  30  Sup.  Ct. 
Rep.  101;  Alabama  G.  S.  R.  Co.  v.  Thomp- 
son, 200  U.  S.  206,  217,  60  L.  ed.  441,  447, 
26  Sup.  Ct.  Rep.  161,  4  Ann.  Cas.  1147; 
Lathrop,  S.  k,  H.  Co.  v.  Interior  Constr. 
k  Improv.  Co.  215  U.  S.  246,  261,  64  L.  ed. 
177,  179,  30  Sup.  Ct.  Rep.  76;  American  Car 
k  Foundry  Co.  y.  Kettelhake,  236  U.  8. 
311,  315,  316,  69  L.  ed.  594,  596,  697,  36 
Sup.  Ct.  Rep.  365. 

Messrs.  James  P.  Gilmore  and  Press 
T.  Cross  submitted  the  cause  for  defend- 
ant in  error: 

The  petition  for  removal  was  properlj 
denied. 

Chesapeake  &  0.  R.  Co.  v.  Cockrell,  232 
U.  S.  146,  58  L.  ed.  544,  34  Sup.  Ct.  Rep. 
278;  Chicago,  R.  I.  A  P.  R.  Co.  v.  Schwy- 
hart,  227  U.  S.  184,  57  L.  ed.  473,  33  Sup. 
Ct.  Rep.  250;  Chicago,  B.  &  Q.  R.  Co.  ▼. 
Willard,  220  U.  S.  413,  65  L.  ed.  621,  31 
Sup.  Ct.  Rep.  460;  Illinois  C.  R.  Co.  t. 
Sheegog,  215  U.  S.  308,  54  L.  ed.  208,  30 
Sup.  Ct.  Rep.  101;  Southern  R.  Co.  ▼. 
Miller,  217  U.  S.  209,  64  L.  ed.  732,  80 
Sup.  Ct.  Rep.  460;  Alabanm  Q.  S.  R.  Co.  t. 

2S9  V.  B. 


1915. 


CHICAGO,  B.  L  &  P.  R.  CO.  ▼.  WHITEAKBR. 


428»  424 


Thompflon,  200  U.  8.  206-218,  60  L.  ed. 
441-446,  26  Sup.  Ct  Kep.  161,  4  Ann. 
Cu.  1147. 

On  removal,  the  only  question  to  con- 
sider was  whether  there  was  a  real  inten- 
tion to  get  a  joint  judgment,  and  whether 
there  was  colorable  ground  for  it,  shown 
as  the  record  stood  at  the  time  the  removal 
WM  denied. 

Chicago,  R.  I.  &  P.  R.  Co.  y.  Schwyhart, 
227  U.  8.  1S4,  57  L.  ed.  473,  33  Sup.  a. 
Hep.  250. 

Under  the  petition  and  the  Missouri  law, 
onless  plaintiff  obtained  a  judgment  against 
the  servant  defendant  he  could  not  recover 
against  the  railway  company,  and  plaintiff 
will  be  presumed  to  have  joined  the  servant 
in  good  faith,  and  with  the  intent  to  get  a 
joint  judgment. 

McGlnnis  v.  Chicago,  R.  I.  k  P.  R.  Co. 
200  Mo.  347,  0  L.R.A.(N.S.)  880,  118  Am. 
8t  Rep.  661,  98  S.  W.  590,  9  Ann.  Cas. 
656;  Whiteaker  v.  Chicago,  R.  I.  &  P.  R. 
Co.  252  Mo.  438,  160  8.  W.  1009. 

Where  a  master  and  servant  are  joined 
as  defendants,  and  a  judgment  is  sought 
against  the  master  on  the  sole  ground  of 
the  servant's  negligent  acts,  then  any  claim 
of  fraud  and  falsehood  in  joining  the  serv- 
ant goes  to  the  merits  of  the  action  as  an 
entirety,  and  not  to  the  joinder,  and  indi- 
cates that  plaintiff's  case  is  iU  founded  as 
to  all  the  defendants. 

Chesapeake  &  O.  R.  Co.  t.  Cockrell,  232 
U.  8.  146,  58  L.  ed.  544,  34  Sup.  Ct.  Rep. 
278. 

All  doubts  are  to  be  resolved  in  favor 
of  the  jurisdiction  of  the  state  court.  No 
presumption  can  be  indulged  in  favor  of 
the  jurisdiction  of  the  Federal  court. 

Mexican  Nat.  R.  Co.  v.  Davidson,  157 
U.  8.  208,  39  L.  ed.  675,  15  Sup.  Ct.  Rep. 
563;  Hanrick  v.  Hanrick,  153  U.  8.  192, 
38  L.  ed.  685,  14  Sup.  Ct.  Rep.  835;  Shaw 
V.  Quinpy  Min.  Co.  145  U.  8.  444,  36  L. 
el  768,  12  Sup.  Ct.  Rep.  935. 

The  state  court  is  not  ousted  of  juris- 
diction unless  the  cause  is  properly  re- 
movable. Federal  jurisdiction  cannot  be 
inferred,  but  it  must  appear  positively  up- 
^  the  face  of  the  pleadings. 

Hanford  v.  Bavies,  163  U.  8.  273,  41 
Ii.  ed.  157,  16  Sup.  Ct.  Rep.  1051;  Bors  v. 
Preston,  111  U.  8.  252,  28  L.  ed.  419,  4 
Sup.  Ct.  Rep.  407;  Mansfield,  C.  k  L.  M. 
R.  Co.  V.  Swan,  111  U.  8.  379,  28  L.  ed. 
462,  4  Sup.  Ct.  Rep.  510;  Grace  v.  Am- 
erican Cent.  Ins.  Co.  109  U.  8.  278,  27 
L  ed.  932,  3  Sup.  Ct.  Rep.  207 ;  National 
8.  8.  Co.  V.  Tugman,  106  U.  8.  118,  27  L. 
«1  87,  1  Sup.  Ct.  Rep.  58;  Southern  R. 
Co.  V.  Carnon.  194  U.  8.  138,  8  L.  ed.  909, 
24  Sup.  Ct.  Rep.  609. 

The  joint  liability  of  the  defendant  un- 
60  L.  ed. 


I  der  the  pleadings  is  a  matter  of  stats  law, 
'  and  the  decision  of  the  highest  court  of  the 
state  will  not  be  reversed  by  the  Federal 
Supreme  Court  on  the  question  of  fraudu- 
lent joinder  to  prevent  removal 

Chicago,  R.  I.  &  P.  R.  Co.  v.  Schwyhart, 
227  U.  S.  184,  57  L.  ed.  473,  83  Sup.  Ct. 
Rep.  250;  Chicago,  R.  I.  A  P.  R.  Co.  v. 
Dowell,  229  U.  8.  102,  57  L.  ed.  1090,  33 
Sup.  Ct.  Rep.  684;  Alabama  G.  S.  R.  Co. 
V.  Thompson,  200  U.  8.  206,  50  L.  ed.  441, 
26  Sup.  Ct.  Rep.  161,  4  Ann.  Cas.  1147; 
Illinois  C.  R.  Co.  v.  Sheegog,  215  U.  8. 
308,  54  L.  ed.  208,  30  Sup.  Ct.  Rep.  lOL 

Mr.  Justice  HcKenna  delivered  the  opin- 
ion of  the  court: 

Action  foA*  damages,  brought  against  the 
Chicago,  Rock  Island,  k  Pacific  Railway 
Company  and  Frank  Drake,  as  defendants, 
in  the  circuit  court  of  Clinton  county,  state 
of  MisBoiiri. 

The  action  was  for  personal  injuries  in- 
flicted upon  defendant  in  error  by  Drake, 
who  was  a  conductor  on  a  train  of  the 
railway  company.  It  is  alleged  that  Drake, 
"while  acting  in  the  line  of  his  duties  to  de- 
fendant railway  company,  as  such  conduct- 
or and  agent,  and  in  the  course  of  his  em- 
ployment, approached  plaintiff  (who  was 
then  sitting  on  the  top  of  one  of  the  cars 
in  said  train)  .  .  .  and  wrongfully  and 
unlawfully"  kicked  him  from  the  train 
while  it  was  running  at  a  high  rate  of  speed, 
plaintiff  being  without  fault.  The  injuries 
received  were  detailed,  and  judgment  was 
prayed  for  $15,000. 

The  railway  company  filed  a  petition  for 
removal  of  the  case  to  the  United  States 
circuit  court  for  the  western  district  of 
Missouri,  in  which  it  was  alleged  that  the 
controversy  was  between  citizens  of  dif- 
ferent states,  the  plaintiff  in  the  action  be- 
ing a  citizen  of  Missouri  and  the  railway 
company  a  citizen  of  Illinois.  That  the  al- 
leged cause  of  action  was  a  separable  con- 
troversy capable  of  determination  between 
the  plaintiff  and  the  railway  company ;  that 
Drake  was  joined  as  defendant  for  the  sole 
and  fraudulent  purpose  of  preventing  the 
company  from  removing  the  action  from  the 
state  court,  and  thereby  defeating  the  juris- 
diction of  the  United  States  circuit  court. 
[424]  That  plaintiff  did  not  have  and  could 
not  have  had  any  cause  of  action  against 
Drake  or  upon  which  to  base  a  recovery 
against  him,  all  which  was  known  to  plain- 
tiff at  the  time  of  the  institution  of  the  ac- 
tion ;  that  Drake  was  a  man  of  small  means, 
having  but  little  property  from  which  a 
judgment  could  be  recovered,  while  the  rail- 
way company  had  property  more  than  suffi- 
cient to  pay  the  amount  sued  for.  That  any 
act  of  n^Ugenoe  on  the  part  of  Drake  was 


424-426                    SUPREME  COURT  OF  THE  UNITED  STATES.              Oct.  Tekm. 

Ml  Act  of  the  nilwa;  compan]',  and  It  wai  language  of  the  elted  caae  ia  aigaia  kppli- 

accordingljr   reaponaible  and   liable  for   th<  cable;   "Ab  no  negligent  act  or  MniHiaii  p«r- 

itame,    Xbat  plaintiff,  when  he  instituted  the  tonal  to  the  railway  eompanjr  waa  charged, 

action,   had   no   reHBOnable  hope,   intention,  and  ita  liability,  like  that"  irf  Ita  employee, 

or  expectation  of  recovering  any  judgment  "waa,  in  effect,  predicated  upon  the  allied 

against  Drake.  negligence  of  the  latter,  the  ihowing  mani- 

A  bond  was  duly  tendered  and  the  peti-  (estly  went  to  the  merita  of  the  action  as  an 

tion    waa    accompanied    by    two    aflldaTita  entirety,  and  not  to  the  joinder;  that  is  to 

which  in  effect  contradicted  the  allegations  9ay,   it   indicated   that   the  plaintiB'a   caae 

of  the  p«tition  aa  to  Drake  by  showing  that  was  ill  founded  ae  to  all  the  defendant*.* 

he  was  not  on  top  of  the  train,  and  could  not  We  conclude  here  as  we  concluded  ther^ 

have    attempted    nor    have    dohe    the    acts  that  the  plaintiff  had  a  right  of  action  under 

charged  against  him.  the   law   of   the   state   and   to   insist   upon 

I'he  petition  for  removal  waa  denied  and  Drake's   piesence  as   a   real   defendant  "•• 

the  case  aubeequently  tried  to  a  jury  which  upon  that  of  the  raiUay  company."    There 

returned  a  verdict  for  plaintiff  in  the  sum  was  no  error,  therefore,  in  the  ruling  of  the 

of  fB.SOO,  upon  which  judgment  was  entered  Supreme   Court,   and   its   judgment   ia   af- 

It  was  affirmed  by  the  supreme  court  of  the  firmed. 
■tAte. 

There  la  but  one  question  presented:    the  

eorrectness  of  the  ruline  upon  the  petition .     _ 

fcr  ,«,o..l  to  the  DniUd  SUtt.  dr.ui.  t««J  ""M^  ™"ER.  PH.  ta  Err., 

court.      The   railway    company   assails   the  '■ 

ruling  in  an  elaborate  argument  and  by  an  SiOl.  J.  STRAHL. 

industrious  review  of  case^L     In  reply  re-  ^^  Reporter',  ed.  428-435., 

cent  decision*  of  thia  court  need  only  be  '                     '^                                ' 

coMidered.  Conatltntlonal    Uw  —  police    power  — 

The  supreme  court  of  the  state  decided  rcguluUng   Inntecper'e   dutj   in   cmo 

that  the  petition  stated  a  cause  of  action  gf  g^^. 

against  Drake  and  the  railway  company,  and  i,  ihe  requirement  of  Neb.   Rev.  Stat. 

whether   it  did,  we  said  in   Chicago,  R.   I.  1913,  S  3104,  that  innkeepers  in  case  of  lire 

t  P.  R.  Co.  T.  Bchwyhart,  2Z7  U.  S.  1B4,  D7  shall  give  notice  of  the  same  to  all  guesU 

■    ^     ip  ct.  Rep,  250,  was  a  mat-  ""*  inmates  at  once,  and  shall  do  all  la 

We  held  further  that  "■""  "" ''  "" ■*  ' '" 

motive   of   plaintiff,    taken    by   itself, 

not  affect  the  right  to  remove,"  and  

"if  there  is  a  joint  liability  he  has  an  [M5]  tion,' a'guesrwas  perm Uted  to  slMp  for't  .. 

absolute  right  to  enforce  it,  whatever  the  hours  after   there   were  indications   that   a 

reason  that  makes  him  wish  to  assert  the  fire  existed,  awaking  only  to  find  that  all 

right."    In  that  case  aa  in  this  there  was  a  means  of  escape,  except  by  a  rope  which 

petition  for  removal  on  the  ground  of  fraud-  proved  too  weak  to  sustain  his  weight,  were 

nient  joinder  of  detendante  to  defeat  Feder-  ="'  •>'f  >'?,""'  d^n^'ty  "f  the  smoke,  and  the 

al  jurisdiction.    The  case,  are  substantial-  J^-^  S'r  \f^::'Z' ^.Z^^Zir^:,.  IV. 

ly  parallel,  e,  in  Dlseit  Snp.  Ct.  1908.J 

In  Chesapeake  t  0.  R.  Co.  t.  Coekrell.  Note.— For  a  discussion  of  police  power, 
232  U.  8.  146,  58  L.  ed.  644,  34  Sup.  tt.  Rep.  ™erally-Bee  notes  to  SUte  v  Mar^ll.  1 
278,  it  was  decided  that  it  is  not  enough  to  L.R.A.  161;  Re  Gannon,  5  L.R.A.  359;  SUU 
assert  that  there  was  a  fraudulent  joinder  v.  Schlemmer,  10  L.R.A.  136;  Ulman  v.  Bal- 
of  defendants,  hut  there  must  be  "a.  state-  timore,  11  L.R.A.  224;  Electric  Improv.  Co. 
ment  of  facts  rightly  engendering  that  con-  v.  San  Francisco,  13  L.R.A.  131 ;  and  Bar- 
elusion;"  and  that  "merely  to  traverse  the  bier  v.  Connolly.  28  L.  ed.  U.  8.  023. 
-              s  upon  which  the  liability  of  the  .  9"  "">  ^'»:T^?  "'  '".  '""peeper  for  in- 

.  -  '^ /    .„„,„  juries  caused  by  lack  or  insufflciency  of  fire 

.*^   "PP'y  protection— see  note  to  Ritter  V.  Norman,  43 

™=  ^,, — ^.   ™  —  jOinder  wiil  [,h.A.{N.S.)  661. 

not  suffice:     the  showing  must  be  auch  as  Generally,    as    to    liability    for    injuriee 

compels  the  conclusion  that  the  joinder  is  caused   by   lack   or   ingiifficieaey   of   fire  ea- 

without  right  and  made  in  bad  faith."    And  t^pes — see  notes  to  Rose  v.  Kin^  15  L.R.A. 

"it  was  not  such,"  it  was  said,  "unless  it  160;   Yall   v.   Snow,   10   L.R.A.(N.S.}    177; 

was  without  any  reasonable  basis."  Arnold   v.   National   Starch   Co.   21   L..R.A. 

There  is  nothing  more  than  a  traverse  of  JN|-)   "|i  -nd  West  v.  Inman,  39  L.R.A. 

the   cause   of,  action   in   the   present   case.  '    ;■''.      .;      „  ,...^     ,   .,.„    i.^  ,   .__ 

_       ,,        .'              ,.       1.^.1.4111  Asto   the   validity   of   class   legislatitm. 

The  attempt  was  made  to  show  that  Drake  j,„„ally-see  notes  to  SUte  v.  eoodwill. 

could  not  have  been  guilty  as  charged  be-  g  L.RJi.  621 ;  and  State  v.  Loomis,  21  L.R-&. 

cause  he  waa  elsewhere  on  the  train.    The  789. 

S0*  **9   V.  3. 


1016. 


MILLER  V.  STRAHL. 


ConsUtQtioiiAl  law  —  due  process  of  law 
—  uncertainty  of  statute. 

2.  There  is  no  such  uncertaintj  in  the 
requirement  of  Neb.  Rey.  Stat.  1013,  §  3104, 
that  innkeepers  in  case  of  fire  shall  "do  all 
in  tJieir  power"  to  save  guests  and  inmates, 
as  to  render  the  statute  invalid  under  U. 
S.  Const.,  14th  Amend.,  as  wanting  in  due 
process  of  law. 

[For  other  cases,  see  Constitutional  Law»  IV. 
b,  7,  in  Digest  Sup.  Ct.  1008.] 

Constitntional  law  —  equal  protection 
of  tbe  laws  —  classification  —  regulat- 
ing duty  of  Innkeepers  In  case  of  fire. 

3.  Singling  out  hotels  having  more  than 
fifty  rooms  as  proper  subjects  for  r^;ula- 
tions  respecting  tiie  duty  of  hotel  keepers 
towards  guests  and  inmates  in  case  of  fire,  as 
18  done  by  Neb.  Rev.  Stat.  1013,  §  3104,  does 
not  render  the  statute  repugnant  to  U.  S. 
Const.,  14th  Amend.,  as  denying  the  equal 
protection  of  the  laws. 

fFor  other  cases,  see  Constitntional  Law,  IV. 
a,  5,  in  Digest  Sap.  Ct.  1008.] 

[No.  458.] 

Argued  November  20,   1015.     Decided  De- 
cember 20,  1015. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Nebraska  to  review  a  judgment 
which  affirmed  a  judgment  of  the  District 
Court  of  Douglas  County,  in  that  state,  in 
favor  of  plaintiff  in  an  action  against  a 
hotel  keeper  to  recover  for  personal  injuries 
sustained  by  a  guest  during  a  fire.  Af- 
firmed. 

See  same  case  below,  07  Neb.  820,  151  N. 
W.  052. 

The  facts  are  stated  in  the  opinion. 

Mr.  Edgar  M.  Morsman,  Jr.,  argued 
the  cause  and  filed  a  brief  for  plaintiff  in 
error: 

Requiring  a  person  to  do  all  in  his  pow- 
er to  save  another  fails  to  point  out  to 
such  person  with  sufficient  clearness  the 
course  of  conduct  to  be  pursued,  and  fur- 
nishes no  criterion  whereby  such  person 
can  judge  his  acts.  Therefore  .fine,  im- 
prisonment, and  payment  of  damages  for 
failure  to  do  all  in  one's  power  to  save 
another  deprives  a  person  of  liberty  and 
property  without  that  due  process  of  law 
guaranteed  by  the  Constitution  of  the  Unit- 
ed SUtes. 

Collins  y.  Kentucky,  234  U.  S.  634,  58 
L.  ed.  1510,  34  Sup.  Ct.  Rep.  024;  Interna- 
tional Harvester  Co.  v.  Kentucky,  234  U. 
S.  216,  58  L.  ed.  1284,  84  Sup.  Ct.  Rep. 
853;  State  v.  Mann,  2  Or.  238;  Cook  v. 
State,  26  Ind.  App.  278,  50  N.  £.  480; 
United  SUtes  ▼.  Capital  Traction  Co.  34 
App.  D.  C.  502,  10  Ann.  Cas.  68;  Brown 
v.  State,  137  Wis.  543,  110  N.  W.  338; 
Tozer  y.  United  States,  4  Inters.  Com.  Rep. 
245,  52  Fed.  017;  Railroad  Commission  v. 
•0  li.  ed. 


Grand  Trunk  Western  R.  Co.  170  Ind.  255, 
100  N.  £.  852;  United  States  v.  Reese,  02 
U.  S.  214,  23  L.  ed.  563;  American  School 
y.  McAnnulty,  187  U.  S.  04,  47  L.  ed.  ^0, 
23  Sup.  Ct.  Rep.  331;  Czarra  y.  Medical 
Supervisors,  25  App.  D.  C.  443;  Chicago, 
M.  &  St.  P.  R.  Co.  y.  Polt,  232  U.  S.  165, 
58  L.  ed.  554,  34  Sup.  Ct.  Rep.  301. 

A  master  must  fumish  his  employee  a 
safe  place  in  which  to  work;  and,  failing 
to  do  so,  must  respond  in  damages.  But, 
having  furnished  a  safe  place,  the  master 
cannot  be  made  liable  because  he  fails  to 
risk  his  own  safety  to  save  the  servant. 
An  innkeeper  may  be  made  responsible  for 
damage  done  by  fire,  but,  not  being  made 
responsible  therefor,  he  cannot  be  held  lia- 
ble because  he  fails  to  risk  his  own  safety 
in  order  to  save  his  guest  unharmed. 

Louisville  A  N.  R.  Co.  v.  Com.  00  Ky. 
132,  33  L.R.A.  200,  50  Am.  St.  Rep.  457, 
35  S.  W.  120;  Jacobson  v.  Massachusetts, 
107  U.  S.  11,  40  L.  ed.  643,  25  Sup.  Ct. 
Rep.  358,  8  Ann.  Cas.  765;  Munn  v.  Illinois, 
04  U.  S.  113,  24  L.  ed.  77;  Gastenau  v. 
Com.  108  Ky.  473,  40  LJIJI.  Ill,  04  Am. 
St.  Rep.  386,  56  S.  W.  705;  Coppage  v. 
Kansas,  230  U.  S.  1,  50  L.  ed.  441,  LJt.A. 
1015C,  060,  35  Sup.  Ct.  Rep.  240. 

Requiring  that  the  keepers  of  inns  hav- 
ing more  than  fifty  rooms  shall  awaken  and 
notify  guests  of  fire,  and  do  all  in  their 
power  to  save  them  unharmed  from  fire, 
denies  the  equal  protection  of  the  laws  to 
such  innkeepers,  as  compared  with  the  keep- 
ers of  inns  having  less  than  fifty  rooms. 

Atdiison,  T.  &  S.  F.  R.  Co.  v.  Vosburg, 
238  U.  S.  56,  50  L.  ed.  1100,  L.RJL1015E, 
053,  35  Sup.  Ct  Rep.  675. 

Mr.  H.  C.  Brome  argued  the  cause,  and, 
with  Messrs.  Clinton  Brome  and  H.  S. 
Daniel,  filed  a  brief  for  defendant  in  error: 

The  14th  Amendment  to  the  Constitution 
of  the  United  States  does  not  prohibit  legis- 
lation which  is  limited  either  in  the  objects 
to  which  it  is  directed,  or  by  the  territory 
within  which  it  is  to  operate.  It  merely 
requires  that  all  persons  subjected  to  such 
legislation  shall  be  treated  alike,  imder  like 
circumstances,  both  in  the  privileges  and 
liabilities  imposed. 

Hayes  v.  Missouri,  120  U.  S.  68,  30  U 
ed.  578,  7  Sup.  Ct.  Rep.  350;  Barbier  v. 
Connolly,  113  U.  S.  27,  28  L.  ed.  023,  5 
Sup.  Ct.  Rep.  357 ;  McLean  v.  Arkansas,  211 
U.  S.  546,  53  L.  ed.  318,  20  Sup.  Ct.  Rep. 
206;  Williams  v.  Arkansas,  217  U.  S.  70, 
54  L.  ed.  673,  80  Sup.  Ct.  Rep.  403,  18 
Ann.  Cas.  865 ;  Atchison,  T.  &  S.  F.  R.  Co. 
V.  Vosburg,  238  U.  S.  56,  50  L.  ed.  1100, 
LJLA.1015E,  053,  35  Sup.  Ct.  Rep.  675. 

It  is  not  enough  that  a  state  law,  as 
written,  is  capable  of  a  construction  that 


SUPREUE  COUST  OF  THE  UKITBD  STATES.              OOT.  Iteu, 

would  render  it  repngnant  to  tone  provi-  room*  uid  w»m  four  or  mora  itoriM  U|^i 

•Ion    of    the    Constitution    of    th«    United  tlut  botween  midnight  and  d«wB,  Juiiujj 

States,  to  authorize  this  court  to  pronounce  23,  ISll,  ■  "boatUe  fire"  broke  oat  in  the 

It  Invalid.     If  the  law,  aa  conatrued  b^  the  hotel,  which,  it  la  alleged,  bj  reaaon  of  the 

oonrta  of  the  state,  doea  not  oSend  against'  negligence  of  plaintiff  in  error,  waa  not  prop' 

ooDatitntlonal  provisions,  then  it  must  be  erij'  discovered  or  controlled,  and  a  portion 

held  valid  here.  of  the  hotel  waa  burned,  the  halls  thereof 

Tampa  Waterworks  Co.  v.  Tempa,  IBB  U.  filled  with  amokc  and  gssea,  endangering  the 
B.  241,  60  U  ed.  170,  26  Sup.  Ct.  Rep.  Uvea  of  the  guests  and  inmatea;  that  phun- 
£3;  Bmiler  v.  Kanaaa,  1B6  U.  8.  447,  4B  till  in  error  and  his  acrvanta  failed  and 
Ih  ed.  fi46,  25  Sup.  Ct.  Rep.  SSB;  Soper  neglected  to  awaken  the  guest*  or  give  them 
T.  Lawrence  Bros.  Co.  201  U.  S.  371,  50  notice  of  the  Are,  and  that  by  reason  there- 
in, ed.  7B2,  26  Bnp.  Ct.  Rep.  473;  Gatewood  of  defendant  in  error  waa  injured  bj  the 
T.  North  Carolina,  203  U.  8.  631,  61  L.  smoke  and  gases  in  attempting  to  eocape 
ed.  305,  27   Sup.  Ct.   Rep.   167;   Uaiorano  from  the  hotel. 

V.  Baltimore  ft  O.  R.  Co.  213  U,  S.  268,  The  specifications  of  n^Iigence  are  m  fol- 

63  L.  ed.  782,  29  Bup.  Ct  Rep.  424.  lowai       ' 

It  will  be  time  enough  to  consider  wheth-  {1|   Failure    to    maintain    •    competent 

er  or  not  the  penal  provisions  of  the  Ne-  night  watchman;   that  the  hotel   waa  not 

brsaka  innkeepera  act  are  enforceable  when  properly   patrolled,  examined,   or  inapected, 

that  question  eriaes.  '■^^   that   its   emplojcea   negligently    fatted 

Wyatt  V.  McCreery  ft  Co.  126  App.  Div.  to  be  at  their  posts  of  duty  to  reipond  to 

660.  Ill  N.  Y.  Bupp.  (W;  Wolf  v.  Smith,  14B  the  warninga  given  them, 

Ala.  457,  9  L.R.A.(y.H.l    338,  42  Bo.  824.  '^l   Plaintiff  in   error   did  not  maintain 

The  l^slativfl  enactment  compUlned  of  «"  efficient  or  sufficient  system  of  Are  gongs 

It   a    valid    and    salutary    exerciae    of    the  lor  erouHing  guesta,  that  he  did  not,  as  soon 

police  power  of  the  state.     Barring  apeciflc  »•  "le  A"  *"  discovered,  ring  or  cause  to 

requirements,  all  property  designed  to  pro-  **  """K  •  8"  fo^S  o»  *•>•  (ourth  floor,  or 

Biote  the  public  health  and  safety,  ft  doea  ^^K  "  «"'■»  *•»  ^  ru°«  •  telephone  in  the 

BO  more  than  declare  the  common-law  du^  ""o*""  "*  defendant  In  error,  or  in  any  other 

of  the  innkeeper  with  respect  to  his  guests.  ^*7  »waken,  arouse,  or  notify  him  of  the 

Ths    supreme    court    of    the    state    of    Ne-  eiiatence  of  the  Are. 

bra*ka  has  given  the  law  a  senaible  and  (3)  PUintlff  in  error  did  not  aotify  de- 
proper  construction.  As  construed  by  that  fendant  in  error  of  the  location  of  the  atair- 
oourt,  there  is  no  danger  that  plaintUT  in  ""J  leading  from  the  fourth  floor;  that 
error  will  be  compelled  to  endanger  hia  *•  ''°t«I  did  not  have  a  sufficient  number 
life  or  that  of  his  employee  in  performing  <»*  eUirwaya;  that  plaintiff  in  error  failed 
the  dutiea  Imposed  upon  him  or  them.  to  "peraU  the  elevator,  failed  to  respond  to 

United  States  v.  Kirby,  7  Wall.  482,  IB  defendant  In  error's  demand  to  be  removed, 

L.  ed.  278;  Clancy  v.  Barker,  71  Neb.  83,  "^  '»"«>  ^  ''*"'  ""y  I'K^*'  ■'«"•  "  "o*'" 

SB  ULA.  642,  115  Am.  St.  Rep.  65B,  B8  indicating  the  location  of  the  elevator. 

M.    W.   440,   103  N.    W.  446,  8   Ann.    Cas.  *^1    Defendant  in  error's  room  was  fur- 

682,  15  Am.  N«g.   Rep.  584,   18  Am.  N«g.  "'"^ed  with  a  [430]  rope  which  pUintiff  in 

^^a,  173,  error  represented  could  i>c  used  for  the  pur- 
pose of  a  fire  escape,  but  that  it  waa  too 

Mr.  Juatiee  HcKenna  delivered  the  opin-  ""•Jl  "d  inaufflcient  for  such  purpose,  and 

ton  of  the  court:  that  proper  directions  were  not  given  for 

Action  for  the  recovery  of  $16,000  on  ae-  't«  use  as  a  means  of  escape.   Defendant  in 

oount  of  injuriea  auatained  by  defendant  in  error  attempted  to  eacepe  by  means  of  this 

error  while  a  guest  at  the  hotel  of  plain-  rope   and    in   doing    so  suffered    bodily    in- 

tlff  in  error,  cauaed  by  the  negligence  of  juries. 

the  latter  and  in  violation  of  a  law  of  the  There  were  general  denials  of  these  allc- 

state  of  Nebraska.  gations  and  averments  of  negligence  on  the 

Plaintiff  in  the  case,  defendant  in  error  part  ol  defendant  in  error  which  directly, 

here,  alleges  that  the  plaintiff  in  error  was  it  is  averred,  contributed  to  and  caused  his 

the   proprietor    and    operator    of   what   la  injuries,  and  without  which,  it  is  further 

known   as   the   Millard   Hotel,   located   in  averred,  he  would  not  have  received  them. 

Omaha,    Nebraska,    and    that,    as    such,   he  A  knowledge  of  or  mesne  of  knowledge  of  the 

received  and  entertained    [4S9]    defendant  plans  of  the  hotel  and  meana  of  ingress  and 

in  error  as  a  guest  for  hire;    that  on  the  ^eaa    were    averred,    and    also    the    equip- 

alght  of  January  22,  1911,  and  during  the  ment  of  the  hotel  lights  in  ite  halls,  notices 

morning  of  January  23,  defendant  in  error  and  tire  escapes. 

occupied  a  room  on  the  fourth  floor  of  the]  The  case  whs  tried  to  a  jury  which  re- 
hotel;  that  the  hotel  had  more  than  fifty  turned  a  verdict  for  defendant  in  error  in 
'««  ISI  V.  s. 


191& 


KILLER  T.  STRAHU 


a(M88 


th«  ram  of  $6^00,  up<»i  which  Judgment 
wag  entered.  It  wm  affirmed  by  the  au- 
preme  eourt  of  the  atate. 

The  aupreme  court  in  ita  opinion  aaya: 
It  ia  undiaputed  that  the  amell  of  amoke 
waa  detected  by  one  of  the  employeea  in 
the  hotel  about  1:30  A.  M.,  and  that  later 
a  gueat  called  the  attention  of  the  night 
clerk  to  the  amell  of  amoke;  that  the  clerk 
did  nothing  further  than  to  look  into  the 
coapidor  to  aee  if  paper,  or  aome  like  com- 
bnatible  matter,  might  be  burning  there. 
And  thia  was  two  houra  before  the  appellee 
awoke  to  find  the  halla  filled  with  amoke. 
Theae  facta,  together  with  the  teatimony 
relating  to  the  fire  gonga,  fire  eacapea,  and 
the  general  conduct  of  appellant'a  agenta, 
were  all  properly  aubmitted  to  the  jury." 
[97  Neb.  823,  151  N.  W.  952.] 

The  court  decided  that  there  waa  a  com- 
mon-law liability  upon  a  hotel  keeper  "to 
protect  hia  gueata  from  danger  when  it  ia 
reaaonably  within  hia  power  to  do  ao,"  and 
cited  beaides,  §  3104  of  the  Reviaed  Stat- 
utea  of  the  atate,  1913,  which  reada  aa  fol- 
towa: 

*'In  hotela  or  lodging  houaea  containing 
more  than  fifty  [431]  rooms,  and  being  four 
or  more  stories  high,  the  proprietor  or  lessee 
of  each  hotel  or  lodging  house  shall  employ 
and  keep  at  leaat  one  competent  watchman, 
whose  duty  it  shall  be  to  keep  watch  and 
guard  in  such  hotel  or  lodging  house  againat 
fire  and  to  give  warning  in  case  a  fire  should 
break  out.  Such  watchman  shall  be  on 
duty  between  the  hours  of  9  o'clock  P.  M. 
and  8  o'clock  ▲•  M.,  and  in  case  of  fire  he 
shall  instantly  awaken  each  gueat  and  all 
other  peraona  therein,  and  inform  them  of 
rach  fire.  A  large  alarm  bell  or  gong  shall 
be  placed  on  each  fioor  or  story,  to  be  used 
to  alarm  the  inmates  of  such  hotel  or  lodg- 
ing house  in  case  of  fire  therein.  It  shall 
be  the  duty  of  every  proprietor,  or  keeper  of 
inch  hotel  or  lodging  house,  in  case  of  fire 
therein  to  give  notice  of  same  to  all  guests 
and  inmates  thereof  at  once  and  to  do  all 
in  their  power  to  save  such  guests  and  in- 
mates." 

The  statute  ia  attacked  on  the  ground 
that  it  contravenea  the  Constitution  of  the 
state  (with  which  we  have  no  concern)  and 
the  Conatitution  of  the  United  States.  Aa 
a  foundation  for  the  contention  plaintiff  in 
error  aaserta  that  the  trial  court,  whose 
actimi  waa  affirmed  by  the  aupreme  court 
of  the  atate,  specifically  instructed  the  jury 
that  plaintiff  in  error  "and  all  his  employees 
and  the  night  watchman  at  the  hotel  owed" 
to  defendant  in  error  "the  active  duty  after 
the  fire  had  broken  out  [italics  counsers] 
aa  followa:  (a)  To  notify  him  (Strahl)  of 
the  exiatence  of  the  fire  ao  that  he  might 
eacape  unharmed,  (b)  To  do  all  in  their ' 
•0  Ii.  ed. 


power  to  aave  him  (Strahl)  from  the  fire^ 
and  that  failure  to  perform  either  of  theae 
dutiee  made  Rome  Miller  [plaintiff  in  error] 
liable  in  damagea.  In  other  words,  the 
trial  court  conatrued  the  act  of  1883,  above 
mentioned,  ao  aa  to  make  Rome  Miller  li- 
able for  the  penalty  mentioned  in  the 'act 
(fine,  impriaonment,  and  liable  for  dam- 
agea) in  the  event  (1)  either  he  or  the 
watchman  or  any  employee  in  the  hotel 
failed  to  do  all  in  their  power  to  aave  £mil 
J.  Strahl  from  the  fire  [432]  free  of  injury 
or  (2)  either  the  proprietor  of  the  hotel 
(Miller),  the  watchman,  or  any  other  em- 
ployee, failed  to  awaKcn  and  notify  Strahl 
of  the  exiatence  of  the  fire." 

Plaintiff  in  error  admits  that  the  atate  of 
Nebraaka  may  "without  limit"  preacribe 
"regulations  having  reference  to  the  pert 
formance  of  acta  and  the  taking  of  preci^u- 
tion  prior  to  the  time  when  a  fire  breaka 
out."  But  oounael  aaya,  "After  the  fire 
breaka  out,  we  deny  that  the  legislature, 
under  ita  police  power,  can  compel  the  inn- 
keeper or  the  watchman,  or  any  employee,  to 
do  any  act  which  involvea  a  riak  to  the  life 
and  liberty  of  auch  person."  Such  limita- 
tion of  the  police  power  ia  ezpresaed  in 
varioua  waya,  and  that  it  ia  not  within 
such  power  to  compel  a  watchman  or  other 
employee  to  remain  in  a  burning  building 
"for  the  purpose  of  doing  all  in  their  pow- 
er to  save  the  lives  of  the  guestu,  and  for 
the  pi  rpose  of  awakening  the  guests  and 
notifying  them  of  the  fire,"  auch  lives  being, 
it  ia  added,  "just  as  precious  and  valuable 
to  the  state  aa  ia  the  life  of  the  gueat." 

We  need,  not  pause  to  conaider  differences 
between  the  value  of  livea  to  the  state,  or 
whether  one  life  ia  more-  precioua  than  an- 
other to  the  atate,  or  of  more  concern  to 
the  state  to  preserve  than  the  other.  It  ia 
quite  certain  that  he  who  aaaumea  duties 
may  be  required  to  perform  them.  When 
plaintiff  in  error  engaged  in  the  business  of 
hotel  keeper  he  undertook  its  obligations, 
and  we  need  not  consider  whether  the  stat- 
ute exacts  from  him  and  his  employees  hero- 
ic conduct,  and  not  much  more  need  be  said 
in  answer  to  the  contentiona  of  plaintiff  in 
error. 

The  command  of  the  atatute  ia  that  in 
case  of  a  fire  the  keepers  of  hotels  must 
f^ive  "notice  of  the  aame  to  all  guesta  and 
inmates  thereof  at  once,  and  to  do  all  in 
their  power  to  save  auch  gueata  and  in- 
mates." Could  the  statute  exact  less?  It 
is  the  dictate  of  humanity,  and  gets  nothing 
from  its  expression  aa  a  legal  obligation 
except  a  penalty  for  ita  violation,  and  the 
facta  of  the  case  reject  [433]  any  charge 
that  it  was  enforced  to  the  extent  of  risk  of 
the  life  of  anybody  or  to  the  injury  of  any- 
body* 

%%1 


483-436 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cor.  TsiMy 


Plaintiff  in  error  was  charged  with  cer- 
tain acts  of  omission,  the  jury  found  that 
he  was  guilty  as  charged,  and  the  finding 
was  sustained  by  the  trial  and  supreme 
courts.  We  may  say  without  particular  re- 
view that  they  were  plain  violations  of  duty 
required  by  the  statute.  There  was  an  es- 
pecially significant  fact:  the  fire  was  de- 
tected by  one  of  the  employees  of  the  hotel 
about  1:  30  A.  M.,  and  later  a  guest  called 
the  attention  of  the  clerk  to  the  smell  of 
smoke.  The  clerk  was  moved  by  this  warn- 
ing to  look  into  a  cuspidor,  and  no  further ; 
and  this  was  two  hours  before  defendant  in 
error  awoke  to  find  the  halls  filled  with 
smoke.  The  neglect  cannot  be  magnified 
by  comment.  If  the  action  of  a  clerk  un- 
der such  circumstances  would  be  a  discharge 
of  duty  to  one  guest  it  would  be  a  dis- 
charge of' duty  to  many  guests;  if  to  men, 
then  to  women  and  children,  and  the  trage- 
dy which  might  result  appalls  the  imagi- 
nation. But  to  one  or  many  the  duty  to 
investigate  when  the  existence  of  a  fire  is 
indicated  or  suspected  is  clear.  It  is  to  be 
remembered  that  in  the  case  at  bar  there 
were  indications  of  fire  at  1 :  30  ▲•  M.,  and 
that  at  3:  30  defendant  in  error  awoke  to 
find  the  halls  filled  with  smoke.  He  could 
get  no  response  to  his  calls  by  telephone; 
he  sought  the  elevator,  but  it  was  not  run- 
ning, and,  not  knowing  the  location  of  the 
stairway,  he  returned  to  his  room  and  at- 
tempted to  escape  by  means  of  a  rope  fire 
escape.  These  facts  and  others  referred  to 
by  the  court  justified  the  jury  in  concluding 
that  plaintiff  in  error  did  not  do  all  in  his 
power  to  save  defendant  in  error. 

It  is  entirely  aside  from  the  questions  in 
the  case  and  the  requirements  of  the  statute 
to  consider  the  dismays  and  perils  of  an 
extreme  situation,  and  what  then  might  be 
expected  of  courage  or  excused  to  timidity. 
It  was  one  of  the  purposes  of  the  statute 
to  preclude  such  extremity.  [434]  It  re- 
quires careful  inspection  of  conditions, 
especially  through  the  night,  to  detect 
the  existence  of  fire,  and  prompt  action 
if  it  is  detected.  Had  these  require- 
ments been  observed  in  the  present  case, 
defendant  in  error  would  not  have  been 
permitted  to  sleep  in  a  burning  hotel 
for  two  hours  until  means  of  escape 
were  cut  off  by  the  density  of  the  smoke 
and  the  absence  of  the  employees  of  the 
hotel  from  their  posts— except  by  a  rope, 
which  proved  too  weak  to  sustain  his 
weight. 

Plaintiff  in  error  contends  further  that 
the  statute  "is  lacking  in  due  process  of 
law"  because  "it  fails  to  prescribe  any 
fixed  rule  of  conduct."  The  argument  is 
that  the  requirement  "to  do  all  in  one's 
power"  fails  to  inform  a  man  of  ordinary 
363 


intelligence  what  he  must  or  must  not  do 
under  given  circumstances.. 

Rules  of  conduct  must  necessarily  be  ex- 
pressed in  general  terms  and  depend  for 
their  application  upon  circumstances,  and 
circumstances  vary.  It  may  be  true,  ns 
counsel  says,  that  "men  are  differently  con- 
stituted," some  being  "abject  cowards,  and 
few  only  are  real  heroes;"  that  the  brains 
of  some  people  work  "rapidly  and  normally 
in  the  face  of  danger  while  other  people  lose 
all  control  over  their  actions."  It  is  mani- 
fest that  rules  could  not  be  prescribed  to 
meet  these  varying  qualities.  Yet  all  must 
be  brought  to  judgment.  And  what  better 
test  could  be  devised  then  the  doing  of  "all 
in  one's  power"  as  determined  by  the  cir- 
ctmistances? 

The  case  falls,  therefore,  under  the  rule  of 
Nash  V.  United  States,  229  U.  S.  373,  67  L. 
ed.  1232,  33  Sup.  Ct.  Rep.  780,  and  not  un- 
der the  rule  of  International  Harvester  Co. 
V.  Kentucky,  234  U.  S.  216,  68  L.  ed.  1284, 
34  Sup.  Ct.  Rep.  863. 

It  is  objected  that,  as  the  statute  is  di- 
rected to  keepers  of  hotels  having  more  than 
fifty  rooms,  and  does  not  apply  to  keepers 
of  hotels  having  less,  it  therefore  discrimi- 
nates against  the  former  and  deprives  them 
of  the  equal  protection  of  the  laws.  The 
contention  is  untenable.  McLean  y.  Arkmn- 
sas,  211  U.  S.  630,  63  L.  ed.  316,  29  Sup.  Ct. 
Rep.  206;  Williams  y.  Arkansas,  217  [436] 
U.  S.  79,  64  L.  ed.  673,  30  Sup.  Ct.  Rep.  403, 
18  Ann.  Cas.  866;  Chicago,  B.  &  Q.  R.  Co.  y. 
McGuire,  219  U.  S.  649,  66  L.  ed.  328,  31 
Sup.  Ct.  Rep.  269 ;  Quong  Wing  y.  Kirken- 
dall,  223  U.  S.  69,  66  L.  ed.  360,  32  Sup. 
Ct.  Rep.  192;  SQhmidinger  y.  Chicago,  226 
U.  S.  678,  67  L.  ed.  364,  33  Sup.  Ct.  Rep. 
182,  Ann.  Cas.  1914B,  284;  Booth  v.  Indi- 
ana, 237  U.  S.  391,  69  L.  ed.  1011,  36  8up. 
Ct.  Rep.  617. 

Judgment  affirmed* 


EX  PARTE  JESSE  W.  UPPERCU,  PcU- 

tioner. 

(See  S.  C.  Reporter's  ed.  436-441.) 

Records  —  access  to  sealed  depositions 
and  exhibits. 

1.  The  right  of  any  litigant  of  access 
to  depositions  and  exhibits  on  file  in  another 
cause  which  contain  evidence  material   to 

Note. — ^As  to  when  mandamus  is  the 
proper  remedy,  generally — see  notes  to 
United  States  ex  rel.  International  Con- 
tracting Co.  V.  Lament,  39  L.  ed.  U.  S.  100; 
M'Cluny  v.  Silliman,  4  L.  ed.  U.  S.  263; 
Fleming  v.  Guthrie,  3  L.Rji.  64;  Bumsville 
Turnpk.  Co.  v.  State,  3  L.RA..  266;  State 
ex  rel.  Charleston,  C.  &  a  R.  Co.  v.  White- 

239  U.  8. 


191G. 


EX  PARTE  UPPERCU. 


his  case  cannot  be  defeated  by  an  order  of 
the  court  sealing  such  depositions  and  im- 
pounding the  exhibits,  where  neither  the 
parties  to  the  original  action  nor  the  de- 
ponents have  any  privilege. 
I  For  other  cases,  see  Becord,  in  Digest  Sop. 
Ct.   1908.] 

Jfmndamus  —  access  to  Judicial  records 
^  other  remedy. 

2.  The  right  to  require  by  mandamus 
that  petitioner  be  afforded  access  to  deposi- 
tions and  exhibits  containing  evidence  ma- 
terial to  his  case  wbich  are  on  file  in  an 
Action  brought  by  the  United  States  in  a 
Federal  district  court,  but  which  are  sealed 
by  the  order  of  that  court,  is  not  defeated 
because  of  an  order  not  appealed  from,  re- 
jecting his  motion  for  leave  to  inspect  such 
depositions,  on  the  ground  that  such  motion 
was  made  in  tbe  original  case  and  that  he 
was  not  a  party  to  it,  nor  by  the  subsequent 


denial  of  the  government's  motion  to  Tacate 
or  modify  the  court's  order  so  as  to  allow 
the  depositions  to  be  used,  to  which  denial 
exceptions  were  taken  which  have  not  yet 
been  heard  by  the  circuit  court  of  appeals. 
[For  other  cases,  see  Mandamus,  II.  b,  in  Di- 
gest Sap.  Ct.  1908.] 

[No.  14,  Original.] 

Argued  December  6,  1915.    Decided  Decem- 
ber 20,  1916. 

ORIGINAL  PETITION  for  a  Writ  of  Man- 
damns  to  enforce  petitioner's  ri*;ht  of 
access  to  certain  depositions  and  exhibits  on 
file  in  an  action,  but  sealed  by  order  of  a 
Federal  District  Court.  Rule  made  abso- 
lute. 
The  facts  are  stated  in  the  opinion. 


sides,  3  L.K.A.  777 ;  and  £x  parte  Hum,  13 
L.R.A.  120. 

Right  of  access  to  judicial  records. 

The  right  of  a  litigant  to  inspect  judicial 
records  which  concern  him  seems  unques- 
tioned. 

Thus,  plaintiff  in  an  action  for  malicious 
prosecution  is  entitled  to  inspect  and  make 
A  copy  of  the  information  taken  by  a  jus- 
tice of  the  peace  on  which  the  warrant  for 
the  arrest  was  granted.  Welch  v.  Rich- 
ards, Barnes,  468. 

And  plaintiff  in  an  action  of  trespass  and 
^Jse  imprisonment  may  inspect  the  book  of 
proceedings  of  the  court  in  which  he  was 
sued  and  was  taken  in  execution,  but  only 
«o  far  as  they  relate  to  the  suit  against 
himself.    Wilson  v.  Rogers,  2  Strange,  1242. 

And  the  record  of  proceedings  on  an  in- 
finest,  or  to  discover  the  murderer,  under 
Tex.  Code  Crim.  Proe.  Acts,  941,  942,  in 
which  testimony  of  the  witnesses  is  taken 
^wn,  is  a  public  document  which  one  ac- 
cused of  murder  has  a  right,  on  proper  mor 
tion,  to  inspect  and  use.  Jenkins  v.  Stat^ 
46  Tex.  Crim.  Rep.  173,  76  S.  W.  312. 

A  person  indicted  for  homicide  is  entitled 
to  inspect  the  testimony  taken  at  the  cor- 
oner's inquest,  which,  conformably  to  Conn. 
Rev.  Laws  1888,  §  2011,  6ad  been  reduced 
to  writing  and  lodged  with  the  clerk  of  the 
superior  court,  since,  if  not  a  public  record, 
it  is  a  public  document  relating  to  matters 
of  public  interest,  and  required  by  law  to 
be  kept  by  a  public  officer,  who  is  the  cus- 
todian of  the  records  of  judicial  proceedings 
and  other  public  documents.  And  a  different 
ruling  is  not  demanded  because  of  $§  2009, 
2016,  which  authorize  the  inquest  or  any 
part  of  it  to  be  in  private,  and  empower  the 
coroner  to  keep  the  witnesses  separate. 
Daly  V.  Dimock,  66  Conn.  679,  12  Atl.  406. 

Ihe  committing  magistrate  or  his  clerk, 
if  the  latter  has  official  charge  of  the  crim- 
inal complaint  on  which  the  warrant  of 
arrest  issued,  must,  under  N.  Y.  Code  Crim. 
Proc.  §§  188,  206,  permit  the  accused's  at- 
torney to  inspect  such  complaint^ — and  this 
40  L.  ed. 


although  a  different  attorney  appeared  for 
the  prisoner  at  the  time  of  his  arrest.  Peo- 
ple ex  rel.  Steinhardt  v.  Fuller,  16  N.  Y. 
Crim.  Rep.  344,  68  N.  Y.  Supp.  742. 

Some  of  the  cases  go  so  far  as  to  extend 
this  right  of  access  to  anyone. 

Thus,  it  has  been  held  that  the  transcript 
of  record  on  appeal  and  all  the  papers  and 
documents  relating  thereto,  upon  filing  with 
the  clerk  of  the  appellate  court  become  pub- 
lic judicial  records  to  which  all  persons 
have  the  right  of  access.  £x  parte  Draw- 
baugh,  2  App.  D.  C.  404. 

And,  in  Nash  v.  Lathrop,  142  Mass.  29,  6 
N.  E.  669,  it  was  held  that  any  person, 
though  not  a  citizen,  had  a  right  of  access 
to  the  opinions  of  the  supreme  court  of 
Massachusetts. 

On  the  other  hand.  It  has  been  held  that 
a  party  is  not  entitled  to  the  inspection  of 
judicial  records  unless  some  satisfaetorv 
reason  is  given.  Rex  v.  Maidstone,  6  Dowl. 
&  R.  334. 

An  imlimited  right  of  a  citizen  of  the 
United  States  to  Sispect  and  examine  all 
the  records  and  papers  belonging  to  the 
court  does  not  exist,  said  the  court  in  Re 
McLean,  2  Flipp.  612,  Fed.  Cas.  No.  8,877. 

So,  the  clerk  of  a  court  may  refuse  to 
furnish  a  copy  of  the  proceedings  in  a  di- 
vorce suit  for  newspaper  publication,  in  the 
absence  of  any  statutory  provision  on  the 
subject.  Re  Caswell,  18  K.  I.  836,  27  LJt.A. 
82,  49  Am.  St.  Rep.  814,  29  Atl.  269. 

Parties  to  pending  suits  mav,  under  the 
direction  of  the  court,  lawfully  withhold 
the  records  and  papers  in  the  case  so  as  to 
prevent  examination  by  a  newspaper  re- 
porter until  the  ease  is  made  public  by  the 
consent  of  the  parties  or  by  proceedings  in 
open  court.  Schmedding  v.  May,  86  Mich. 
1,  24  Am.  St.  Rep.  74,  48  N.  W.  201. 

But  the  rules  and  practice  of  the  Patent 
Office  furnish  no  warrant  for  ordering  that 
the  files  relating  to  an  appeal  from  the  Pat- 
ent Office  to  the  court  of  appeals  of  the 
District  of  Columbia  shall  be  preserved  in 
secrecy,  and  directing  the  clerk  not  to  per- 
mit said  files  or  any  part  thereof  to  be  in- 
spected except  OB  request  of  appellant  or 

24  se» 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tkuc/> 


Blr.  Alrin  Cashini^  Cass  argued  the 
cause  and  filed  a  brief  for  petitioner: 

The  writ  of  mandamus  is  the  proper 
remedy. 

Re  Winn,  218  U.  8.  458,  53  L.  ed.  873, 
29  Sup.  Ct  Rep.  515;  Re  Pollitz,  206  U. 
a  331,  51  L.  ed.  1083,  27  Sup.  Ct  Rep. 
729;  Re  Grossmayer,  177  U.  S.  48,  44  L. 
ed.  665,  20  Sup.  Ct  Rep.  535;  Re  Hohorst, 
150  U.  S.  653,  37  L.  ed.  1211,  14  Sup.  Ct 
Rep.  221. 

Court  records  are  inherently  public,  and, 
subject  to  reasonable  regulations,  any  per- 
son showing  a  legitimate  interest  (and  this 
is  liberally  construed)  has  the  common-law 
right  of  full  disclosure. 

Sloan  Filter  Co.  v.  El  Paso  Reduction 
Co.  117  Fed.  504;  Bell  v.  Commonwealth 
Title  Ins.  &  T.  Co.  180  U.  S.  131,  47  L. 
ed.  741,  23  Sup.  Ct  Rep.  560. 

Mr.  Frank  W.  Knowlton  argued  the 
cause,  and,  with  Messrs  Charles  F.  Choatc, 
Jr.,  and  James  Garfield,  filed  a  brief  for 
respondent: 

A  writ  of  mandamus  will  never  be  granted 
where  there  is  another  adequate  legal 
remedy  open  to  the  petitioner.  It  cannot  be 
used,  for  example,  to  perform  the  functions 
of  an  appeal  or  a  writ  of  error. 

Ex  parte  Roe,  234  U.  S.  70,  58  L.  ed. 
1217,  34  Sup.  Ct  Rep.  722;  Ex  parte  Hard- 
ing, 219  U.  S.  363,  55  L.  ed.  252,  37  L.R.A. 
(N.S.)  392,  31  Sup.  Ct.  Rep.  324;  Re  Pol- 
Utz,  206  U.  S.  323,  51  L.  ed.  1081,  27  Sup. 
Ct.  Rep.  729;  Chandler  v.  Pailthorp,  97 
Mich.  621,  57  K.  W.  189. 


A  writ  of  mandamus  can  never  be  aaad 
to  control  the  Judicial  discretion  of  a  sub- 
ordinate court. 

Ex  parte  Roe,  234  U.  S.  70,  58  L.  ed. 
1217,  34  Sup.  Ct.  Rep.  722;  Re  Winn,  21S 
U.  S.  458,  468,  53  L.  ed.  873,  877,  29  Sup. 
Ct  Rep.  515. 

Though  mandamus  may  be  used  under 
appropriate  circumstances  to  compel  a  court 
to  decide  an  issue,  it  cannot  be  used  to- 
dictate  how  such  issue  shall  be  decided. 
Consequently,  it  cannot  compel  the  review- 
ing or  vacating  of  a  judgment,  decree,  or 
order  already  made,  on  the  ground  that  the 
issue  was  wrongly  decided. 

Ex  parte  Morgan,  114  U.  S.  174,  29  L. 
ed.  185,  5  Sup.  Ct  Rep.  825;  Ex  parte 
Schwab,  98  U.  S.  240,  25  L.  ed.  105;  Ex 
parte  Loring,  94  U.  S.  418,  24  L.  ed.  165; 
Chiera  t.  Brevoort,  97  Mich.  638,  57  N.  W. 
193. 

The  act  of  a  court  suppressing  or  refus- 
ing to  suppress  a  deposition,  being  judicial,, 
will  not  be  controlled  by  mandamus. 

Ex  parte  Elston,  25  Ala.  72;  26  Cyc. 
205. 

A  writ  of  mandamus  will  never  be  grant- 
ed unless  the  petitioner  has  a  clear  and 
specific  right  to  be  enforced  by  it. 

Re  Key,  189  U.  S.  84,  47  L.  ed.  720,  2* 
Sup.  Ct.  Rep.  624;  Ex  parte  Cutting,  94 
U.  S.  14,  24  L.  ed.  49. 

Depositions  differ  from  other  public  docu- 
ments which  are  required  to  be  open  to  the 
inspection  of  alL 

Wigmore,    Ev.    §    2111    (3);    Myers    v. 


his  attorneys,  or  upon  special  order  of  the 
court,  first  obtained  after  notice  to  appel- 
lant's attorneys.  Such  files  are  subject  to 
public  inspection  like  those  in  any  other 
case.    Ex  parte  Drawbaugh,  supra. 

Statutes  exist  in  some  jurisdictions  ex- 
tending the  right  of  inspection  to  any  per- 
son. 

Under  a  West  Virginia  statute  "the  rec- 
ords and  papers  of  every  court  shall  be 
open  to  the  inspection  of  any  person."  State 
ex  rel.  Clark  v.  Long,  37  W.  Va.  266,  16  S. 
E.  578. 

But  this  does  not  mean  that  inspection 
is  for  everyone  for  pastime,  whim,  or  fancy. 
The  person  seeking  it  must  have  some  in- 
terest and  the  purpose  of  the  inspection 
must  be  legitimate.  Payne  v.  Staunton, 
55  W.  Va.  202,  46  S.  E.  927,  2  Ann.  Cas. 
74. 

The  books  containing  docket  or  minute 
entries  of  the  judgments  and  decrees  of 
the  Federal  circuit  and  district  courts  were 
by  statute  "open  to  the  inspection  of  any 
person."    Re  McLean,  supra. 

The  docket  of  a  justice  of  the  peace  where- 
in judgments  are  recorded  is  a  public  record 
within  the  meaning  of  Neb.  Comp.  Stat. 
chap.  74,  declaring  Siat  "all  citizens  of  this 
state  and  all  other  persons  interested  in 
S70 


the  examination  of  the  public  records,  are 
herebv  fully  empowered  and  authorized  to 
examine  the  same,  free  of  charge,  during 
the  hours  the  respective  offices  may  be  kept 
open  for  the  ordinary  transaction  of  busi- 
ness." State  ex  rel.  hewby  v.  Ellsworth,  61 
Neb.  444,  85  N.  VV.  439. 

And  the  sustaining  of  an  objection  to 
the  use  of  a  copy  of  a  stenographic  report 
of  evidence  in  another  trial,  because  the 
party  using  the  juime  had  refused  to  allow 
mspection,  was  error,  since  the  original 
was  open  to  the  inspection  of  either  party, 
and  either  or  both  could  have  obtained  'a 
copy  of  the  same.  Spielman  v.  Flynn,  1& 
Neb.  342,  27  N.  W.  224. 

Any  citizen  may,  without  payment  of  fee,, 
inspect  and  make  memoranda  for  purposea 
of  newspaper  publication  of  the  contents  of 
a  marriage  license  docket  kept  by  the  clerk 
of  the  orphans'  court.  The  docket,  under 
the  local  statutes,  is  -a  public  record,  and 
the  record  therein  of  the  issuance  of  a  li- 
cense is  the  record  of  a  judicial  act,  the 
clerk's  decision  for  or  against  the  license 
being  as  much  a  judgment  as  an^  other 
act  involving  the  exercise  of  judicial  con- 
duct Marriage  License  Docket,  4  Pa.  Dist^ 
R.  162. 

See,  however,  Kalamasoo  Qazette  Co.  t» 


191&. 


EX  PARTE  UPPSRCU. 


438,  490 


Roberto,  36  FU.  255,  17  So.  358;  Re  Mc- 
LesB,  2  Flipp.  512,  Fed.  Cat.  No.  8,877; 
Be  Cincinnati  Enquirer,  Fed.  Cas.  No. 
2;719;  Beale  v.  Thompson,  8  Cranch,  70,  3 
L.  ed.  491;  Gross  t.  Ck>ffe7,  111  Ala.  474, 
20  8o.  428;  House  t.  Can^>,  32  Ala.  649; 
Koore  t.  M'Cullough,  6  Mo.  444;  Weeks, 
Depositions,  §  365. 

A  court  has  power  and  discretion  to  sup- 
press depositions: 

(1)  For  irre^larities  in  the  taking  or 
return. 

Dunkle  ▼.  Worcester,  6  Biss.  102,  Fed. 
Gas.  No.  4,162. 

(2)  For  containing  scandalous  matter. 
Re  Caswell,  .18  R  I.  835,  27  L.RA.  82, 

49  Am.  St.  Rep.  814,  29  Atl.  259. 

Mr.  Justice  Holmes  delivered  the  opin- 
ion of  the  court: 

This  is  a  petition  for  a  writ  of  mandamus 
to  direct  the  judges  and  clerk  of  the  district 
eonrt  for  the  district  of  Massachusetts  to 
allow  the  petitioner  access  to  depositions 
ind  exhibito  on  file  in  a  certoin  case,  but 
now  Sep  led  by  order  of  the  court.  The  facts 
alleged,  shortly  stated,  are  as  follows:  The 
ease  referred  to  was  an  action  by  the  p^ov. 
eminent  against  the  Dwight  Manufactur- 
ing Company  for  penalties  under  the  immi- 
gration act  of  February  20,  1907,  chap. 
1134,  34  Stat,  at  L.  898,  Ck>mp.  SUt.  1913, 
§  4242.  On  June  22,  1914,  it  was  com- 
promised by  the  payment  of  $50,000  and 
the  action  was  discontinued.  lu  pursuance 
of  a  preyious  agreement  with  the  Secretary 


of  Commeree  and  Labor  the  petitioner  was 
paid  $25,000  for  services  rendered  in  the 
suit.  He  now  is  sued  by  one  Paehinakis 
for  45  per  cent  of  that  sum  upon  an' allega- 
tion of  title  to  the  amount.  It  is  allied 
that  the  testimony  of  Pachinakis  in  one  of 
the  depositions  will  show  that  he  swore  that 
he  had  ''no  interest  or  right  in  or  expecta- 
tion to  those  moneys;"  that  Pachinakis  was 
the  principal  violator  of  the  law,  and  that 
his  present  claim  is  an  attempt  to  profit 
by  his  own  wrong,  and  against  publio  policy. 
The  petitioner  also  is  sued  by  an  employee 
of  Henry  C.  Quinby,  the  attorney  in  both 
suits,  upon  an  assigned  claim  of  William 
H.  Garland  for  $3,750,  in  respect  of  services 
of  Garland  in  the  former  action.  Garland 
having  been  a  salaried  Assistant  United 
States  Attorney  until  January,  1914,  and 
thereafter  until  the  end  of  the  action  spe- 
cial [439]  counsel  for  the  government,  and, 
as  the  petitioner  believes,  having  been  fully 
paid  by  the  government.  The  petitioner  ex- 
pects to  prove  from  the  papers  on  file  that 
Garland's  services  were  rendered  to  the  gov- 
ernment alone,  and  not  to  him;  that  Gar- 
land's claim  for  additional  compensation  is 
against  public  policy;  and  that  it  is  exorbi- 
tant as  well  as  unjust.  Quinby  is  Gar- 
land's lawyer,  and  is  employed  by  Pach- 
inakis upon  Garland's  advice  by  an  ar- 
rangement between  the  two. 

When  the  former  action  was  compromised. 
Judge  Dodge,  the  respondent,  made  an  or- 
der, "both  parties  consenting,  that  all  depo- 
sitions herein  be  sealed  by  the  clerk  and 


Kalamazoo  County  Clerk,  148  Mich.  460, 
111  N.  W.  1070,  where  the  court,  while 
folding  that  the  records  of  marriage  li- 
censes and  returns  in  the  county  clerk's 
office  could  not  be  withheld  from  inspec- 
tion by  newspaper  reporters,  manifestly 
regarded  such  records  as  "public,"  not 
judicial." 

The  county  records  as  filed,  which,  by 
Mass.  Pub.  Stat.  chap.  37,  §  13,  are  ordered 
to  be  open  for  public  inspection  and  ex- 
amination, and  of  which  any  person  may 
take  copies,  are  the  records  and  files  of  the 
county,  not  of  the  courts  of  the  common- 
wealth within  and  for  that  county.  Cow- 
ley V.  Palsifer,  137  Mass.  392,  50  Am.  Rep. 
818. 

Written  instructions  from  the  attorney 
for  an  execution  creditor  to  the  sheriff  with 
reference  to  the  enforcement  of  the  execu- 
tion are  not  "public  records  or  other  mat- 
ters in  the  oflice"  of  the  sheriff  which,  imder 
Cal.  Pol.  Code  §  1032,  are  required  to  be 
open  to  inspection  by  any  citizen  of  the 
itste,  nor  are  they  "public  writings"  which, 
mider  Cal.  Code  Civ.  Prov.  §  1892,  every 
dtizen  has  a  right  to  inspect.  Whelan  v. 
Snperior  Ct.  114  Cal.  548,  46  Pac.  468. 

An  inspection  of  the  justice's  files  and 
nemoranda  was  refused  before  he  had  made 
•0  L.  ed. 


up  his  record,  although  the  local  statute 
provided  that  the  justice  shall  keep  a  record, 
and  his  "books"  of  records  shall  be  at  all 
times  subject  to  the  inspection  of  persons 
interested.  Perkins  v.  Cummings,  66  Vt. 
485,  29   Atl.   675. 

Tlie  user  of  an  alleged  patented  device 
has  such  an  interest  in  a  suit  in  which  the 
novelty  of  the  invention  and  validity  of 
the  patent  are  in  issue  that  he  may  inspect 
and  obtain  copies  of  the  testimonv  and 
documents  on  file,  and  the  court  will  not 
permit  such  right  to  be  defeated  by  allow- 
ing a  withdrawal  of  the  testimony  and  ex- 
hibits from  the  files  upon  a  settlement  and 
dismissal  of  the  suit.  Sloan  Filter  Go.  v. 
El  Paso  Reduction  Co.  117  Fed.  504. 

Cases  bearing  upon  the  right  of  access 
for  private  abstract  purposes  are  not  here 
included,  that  question  being  the  subject 
for  consideration  in  a  note  to  Bell  v.  Com- 
monwealth Title  Ins.  &  T.  Co.  47  L.  ed. 
U.  S.  741.  ' 

Nor  does  this  note  include  the  right  to 
inspect  grand  jury  minutes— as  to  whi6h 
see  note  to  State  v.  Rhoads,  27  L.R.A.(N.S.) 
558.  I 

Generally,  on  the  right  to  inspect  publie 
records,  see  note  t6  Re  Caswell,  27  L.R.A. 
82.  • 

%1V 


439-441 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Taau. 


retained  in  the  file*  of  liii  office,  Bubject 
to  the  right  of  either  p&rtj  U>  inspect  till 
Munc,  tad  that  all  exhibits  be  impounded 
with  th*  clerk,  subject  to  the  aame  right  ol 
«tth«r  pkrty  to  iuipect  them."  After  tb( 
flret  preientAtion  of  the  claim  of  Pachinakit, 
the  petitionet'i  couniel  made  a  motion  in 
the  former  action  for  leave  to  intpect  tbc 
•bove'meotioDed  depoaitiona.  The  United 
States  assented,  although  Garland,  when 
referred  to  as  the  Assistant  Attorney  last 
in  charge  of  the  matter,  advised  against  it. 
The  former  defendant  opposed  the  motion 
and  it  was  denied,  seemingly  and  as  was 
understood  by  the  petitioner's  counsel,  on 
tbe  ground  that  the  petitioner  was  not  a 
party  to  the  cause.  Subsequently  the  Unit- 
ed States  District  Attorney  made  a  motion 
that  the  order  be  vacated  or  modified  so 
•s  to  allow  the  depositions  to  be  used,  and, 
after  a  denial,  renewed  the  motion  with  a 
fuller  statement  of  grounds,  suggesting  a 
misapprehension  at  the  former  bearing. 
This  motion  also  was  denied  and  exceptions 
were  taken  that  have  not  yet  been  heard 
by  the  circuit  court  of  appeals. 

It  appears  from  what  we  have  said  that 
there  are  documents  present  within  tbe 
jurisdiction  that  furnish  evidence  mnterial 
to  the  petitioner's  case.  The  general  prin- 
ciple is  that  he  has  a  ri^ht  to  have  them 
produced.  [MO]  It  does  not  matter  whetli- 
«r  th^  have  been  used  in  the  original  cause 
or  not.  or  to  whom  they  belong.  The  right  to 
evidence  to  be  obtained  from  an  existing  ob- 
ject does  not  depend  upon  having  an  in- 
terest in  it,  or,  in  a  case  like  this,  upon 
having  an  Interest  in  the  original  cause, 
or  upon  tbe  object  being  admissible  or  in- 
admissible in  the  cause  for  which  it  was 
prepared,  or  upon  the  right  or  want  of  right 
of  the  public  to  examine  tbe  thing.  The 
necessities  of  litigation  and  the  require- 
ments of  justice  found  a  new  right  of  a 
wholly  different  kind.  So  long  as  the  object 
physically  exists,  anyone  needing  it  as  evi- 
dence at  a  trial  has  a  right  to  call  for  it, 
unlesB  some  exception  is  shown  to  the  gen- 
eral rule.  We  discover  none  here.  Neither 
the  parties  to  the  original  cause  Dor  the 
deponents  have  any  privilege,  and  the  mere 
unwillingnesB  of  an  unprivileged  person  to 
have  the  evidence  used  cannot  be  strength- 
ened by  such  a  judicisi  flat  as  this,  forbid- 
ding it,  however  proper  and  effective  the 
•ealing  may  have  been  as  agsinst  the  public 
«t  large.  Ttut,  as  the  custodian  could  not 
obey  the  summons  of  a  magistrate  to  pro- 
duce the  documents  without  encountering 
tbe  command  of  his  immediate  superior,  the 
orderly  course  is  to  obtain  a  remission  of 
that  command  from  the  source  from  which 
It  came, — a  remission  which,  in  oar  opinion. 
It  is  the  duty  of  the  judge  to  graaL 

J  7* 


The  only  other  queation  is  whether  ther* 
is  any  technical  difficulty  in  the  way  of 
this  court  ordering  what  in  ita  opinion  jna- 
tice  requires  and  what  otherwise  the  peti- 
tioner mgy  not  be  able  to  obtain.  The 
previous  proceedings  do  not  stand  in  his 
way.  The  rejection  of  his  motion  on  the 
narrow  ground  that  it  was  made  in  the 
former  action  and  that  be  was  not  a  party 
to  it  did  not  require  to  be  followed  up, 
and  that  of  the  government,  although  in 
his  interest  by  reason  of  his  being  particu- 
larly concerned  in  a  general  act  of  justice 
being  done,  doea  not  confine  him  to  ft  pro- 
ceeding In  which  be  is  not  master  of  the 
cause.  [441]  The  assertion  of  his  rights  re- 
quires no  particular  formality.  It  would 
have  been  enough  if,  on  the  attention  of  tbe 
court  being  called  to  tbe  matter,  it  had 
directed  that  the  order  should  not  be  con- 
strued as  affecting  those  who  otherwise  had 
a  right  to  copies  of  tbe  papers.  It  is  enough 
lor  this  court  that  it  has  been  intimated 
with  luflicient  clearness  that  the  order  has 
a  wider  scope  and  is  to  be  applied  as  against 
him.  As  against  the  petitioner  the  order 
has  no  judicial  character,  but  is  simply  an 
unauthorized  exclusion  of  him  by  virtue  of 
de  facto  power.  The  proceeding  is  not  for 
delivery  of  the  papers  upon  a  claim  of 
title,  but  simply  to  remove  the  unautboriced 
impediment  and  to  correct  an  act  in  excea* 
of  the  jurisdiction  of  the  lower  eourt.  We 
are  of  opinion  that  the  authority  of  this 
court  should  be  exercised  in  this  ease. 

Rule  absolute. 


STATE  BOARD  OF  EQUAUZATION,  and 
Elitts  M.  Ammons,  James  B.  Pearee,  M. 
A.  Leddy,  Roady  Kenehen,  and  Fred  Frt- 
rar,  as  Members,  etc.,  et  al. 

(See  8.  C.  Reporter's  ed.  441-440.) 

Error  to  state  conrt  —  scope  at  review 
—  construction  of  aUte  Constltatlan 
and  laws. 

],  The  proper  construction  of  the  Con- 
stitution and  laws  of  a  state  is  not  tor  tbe 
Federal  Supreme  Court  to  determine  on  a 
writ  of  error  to  a  state  court. 
[For  otlier  caaeii,  ■«  Appeal  and  Error,  2124- 
21S1,   In  DlESat   Sop.   Ct.   ISOS.I 

Note. — On  the  general  subject  of  writs  of 
error  from  United  States  Supreme  Court 
to  state  courts — see  notes  to  Martin  v.  Hun- 
ter, 4  L.  ed.  U.  3.  97;  Hamblin  v.  Weetem 
Und  Co.  37  L.  ed.  U.  S.  867;  Re  Buchanan, 
39  L.  ed.  U.  S.  884;  and  Kipley  v.  Illinota. 
IS  L.  ed.  U.  8.  998. 

On  what  questions  the  Federal  Buprem* 

sat  u.  s. 


1915.  BIMETALLIC   INVEST.  GO.  v.  STATE   BO.  OF  EQUALIZATION. 


Error  to  state  oonrt  ^  scope  of  review 

—  tocal  law. 

2.  The  Federal  Supreme  Court,  on  a 
writ  of  error  to  a  state  court  to  review  a 
deeree  directing  the  dismissal  of  a  suit  in 
equity,  may  not  consider  the  question  wheth- 
er or,  not  the  state  oourt  could  have  thrown 
out  the  suit  on  the  ground  that  there  was 
an  adequate  remedy  at  law,  where  the  high- 
est state  court  treated  the  merits  as  legiti- 
mately before  it. 

[For  other  cases,  see  Appeal  and  Error,  2209- 
2226,  in  Digest  Sop.   Ct.  1908.] 

Constitutional  law  »  due  process  of  law 

—  notice  and  hearing  —  tax  matters. 

3.  An  order  of  the  Colorado  Tax  Com- 
mission and  State  Board  of  Equalization, 
requiring  the  local  taxing  officer  to  make  a 
40  per  cent  increase  in  the  assessed  valua- 
tion of  all  taxable  property  in  the  city  and 
county  of  Denver,  is  not  wanting  in  due 
process  of  law  because  no  opportimity  to 
be  heard  was  given  to  the  individual  tax- 
payers, nor  to  any  city  or  county  official 
other  than  such  as  they  ma^  have  had  by 
reason  of  the  fact  that  the  time  of  meeting 
of  the  boards  is  fixed  by  law. 

(For  other  cases,  see  CoDstltotional  Law,  725- 
744.  in  Digest  Sop.  Ct^  1908.] 

(No.  116.] 

Argued  December  7  and  8,  1916.    Decided 
December  20, 1015. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Colorado  to  review  a  decree 
which,  reversing  a  decree  of  the  District 
Court  of  the  City  and  County  of  Denver, 
in  that  state,  directed  the  dismissal  of  a 
suit  to  enjoin  the  enforoement  of  an  order 
of  the  State  Tax  Commission  and  State 
Board  of  Equalization,  increasing  the  valua- 
tion of  taxable  property  in  Denver.  Af- 
firmed. 

See  same  ease  below,  56  Colo.  512,  138 
Pac.  1010. 

The  facts  are  stated  in  the  opinion. 

.  Mr.  Horace  Phelps,  argued  the  cause  and 
^ed  a  brief  for  plaintiff  in  error: 

In  matters  of  taxation  the  proceedings  for 
assessment  of  property  are  necessarily  sum- 
mary in  their  nature,  but  where  the  tax  is 
laid  against  the  property  according  to  value, 
there  must  be  provision  for  such  notice  and 
hearing  as  are  appropriate  in  such  cases. 

Hagar  v.  Reclamation  Dist.  Ill  U.  S. 
701,  710,  28  L.  ed.  569,  572,  4  Sup.  Ct. 
Rep.  663;  Weyerhaueser  v.  Minnesota,  176 


U.  S.  550,  44  L.  ed.  583,  20  Sup.  Ct.  Rep. 
485. 

It  is  essential  to  due  process  that  notice 
and  a  hearing  be  demandable  as  a  matter 
of  right,  not  granted  as  a  mere  matter  of 
favor  or  grace,  and  that  the  hearing  be  be- 
fore an  officer  or  board  or  tribimal  having 
jurisdiction  to  hear  and  determine  the  mat- 
ter and  to  give  appropriate  relief. 

Roller  Y.  Holly,  176  U.  S.  398,  409,  44 
L.  ed.  520,  524,  20  Sup.  Ct.  Rep.  410; 
Security  Trust  k  S.  V.  Co.  v.  Lexington, 
203  U.  S.  323,  333,  51  L.  ed.  204,  208,  27 
Sup.  Ct.  Rep.  87;  Londoner  v.  Denver,  210 
U.  S.  373,  52  L.  ed.  1103,  28  Sup.  Ct.  Rep. 
708;  Stuart  v.  Palmer,  74  N.  Y.  183,  30 
Am.  Rep.  289. 

The  action  of  the  Colorado  Tax  Commis- 
sion and  the  State  Board  of  Equalization 
complained  of  here  constituted  a  reassess- 
ment of  all  property  affected  thereby. 

Gray,  Limitations  of  Taxing  Power,  § 
1295,  p.  639;  Kuntz  v.  Sumption,  117  Ind. 
1,  2  L.RA..  655,  19  N.  E.  474;  Carney  v. 
People,  210  HI.  434,  71  N.  E.  365;  People 
Y.  Cosmopolitan  L.  Ins.  Co.  246  111.  448, 
92  N.  E.  922;  Overing  v.  Foote,  65  N.  Y. 
269;  Douglas  y.  Westchester  County,  172 
N.  Y.  309,  65  N.  E.  162;  Tohnan  v.  Salomon, 
191  lU.  204,  60  N.  E.  809. 

Even  if  the  power  of  reassessment  or 
revaluation  were  vested  in  and  could  law- 
fully be  exercised  by  either  or  both  of  those 
boards,  the  reassessment  or  raise  in  valua- 
tion could  only  be  made  upon  notice  and 
hearing,  or  opportunity  to  be  heard. 

Gray,  Limitations  of  Taxing  Power,  § 
1295;  Bellingham  Bay  &  B.  C.  R.  Co.  v. 
New  Whatcom,  172  U.  S.  314,  43  L.  ed. 
460,  19  Sup.  Ct.  Rep.  205;  Davidson  v. 
New  Orleans,  96  U.  S.  97,  105,  24  L.  ed. 
616,  620;  Gale  v.  Stat!er,  47  Colo.  72,  105 
Pac.  858;  State  Revenue  Agent  v.  Tonella 
(Adams  v.  Tonella)  70  Miss.  714,  22  L.R.A. 
846,  14  So.  17;  Kimts  v.  Sumption,  117 
Ind.  1,  2  LJLA.  655,  19  N.  £.  474;  People 
ex  reL  Barnard  v.  Wemple,  117  N.  Y.  77, 
22  N.  E.  761;  Meyers  v.  Shields,  61  Fed. 
718. 

There  was  no  hearing;  thete  was  no  no- 
tice; the  rights  of  the  property  owner  were 
ignored;  and  the  decision  of  the  supreme 
court  of  the  state,  sustaining  the  order  of 
the  boards,  was  state  action  depriving  the 
taxpayer  of  property  without  due  process 


Court  will  consider  in  reviewing  the  judg- 
ments of  state  courts — see  note  to  Missouri 
ex  rel.  Hill  v.  Dockery,  63  L.R.A.  571. 

As  to  what  constitutes  due  process  of  law, 
generally — see  notes  to  People  v.  O'Brien,  2 
L.R.A.  235 ;  Kuntz  v.  ^Sumption,  2  L.R.A. 
655;  Re  Gannon,  5  L.R.A.  359^  Ulman  t. 
Baltimore,  11  L.RJI.  224;  Gilman  v.  Tucker, 
60  L.  ed. 


13  L.RJk.  304;  Pearson  v.  Yewdall,  24  L^ 
ed.  U.  S.  436;  and  Wilson  v.  North  Caro- 
lina, 42  L.  ed.  U.  S.  865. 

On  notice  and  hearine  required  to  con- 
stitute due  process  of  law — see  notes  to 
Kuntz  V.  Sumption,  2  L.R.A.  657;  Chauvin 
V.  Valiton,  3  hJSLA.  194;  and  Ulman  v. 
Baltimore,  11  L.ILA.  225. 


443,  444 


SUPREME  OOUBT  OF  THE  UNITED  STATES. 


Got.  Tkrm, 


of  law,  in  yiolation  of  the  provisions  of  the 
14th  Amendment. 

Central  of  Georgia  R.  Go.  t.  Wright, 
207  U.  S.  127,  62  L.  ed.  134,  28  Sup.  Ct 
Rep.  47, 12  Ann.  Gas.  463. 

Mr.  Fred  Farrar,  Attorney  General  of 
Colorado,  and  Mr.  Xorton  Montgomery 
argued  the  cause  and  filed  a  brief  for  de- 
fendant in  error  the  State  Board  of  Equali- 
zation : 

It  is  acknowledged,  that  the  right  to  tax 
is  a  soyereign  power,  and  that  the  power  of 
the  legislature  in  adopting  laws  for  taxa- 
tion and  the  procedure  therefor  is  plenary, 
limited  only  by  the  express  inhibitions  of 
national  and  state  Constitutions. 

Cooley,  Const.  Lim.  6th  ed.  chap.  7;  New- 
man v.  People,  23  Colo.  306,  47  Pac.  278; 
Bellingham  Bay  Improv.  Co.  v.  New  What- 
com, 172  U.  S.  320,  43  L.  ed.  463,  19  Sup. 
Ct.  Rep.  873. 

Even  though  it  should  be  conceded  that 
the  plaintiff  in  error  was  denied  by  the 
statutes  of  Colorado  due  process  of  law, 
still  it  would  not  have  been  entitled  to 
judgment  imless  it  had  further  shown  that 
it  had  brought  itself  within  some  of  the 
recognized   heads  of  equity  Jurisprudence. 

Singer  Sewing  Mach.  Co.  v.  Benedict,  220 
U.  S.  481,  57  L.  ed.  1288,  33  Sup.  Ct.  Rep. 
941;  SUte  R.  Tax  Cases,  92  U.  S.  675, 
613,  23  L.  ed.  663,  673. 

In  determining  what  is  meant  by  due 
process  of  law,  a  marked  distinction  is 
recognized  in  cases  involving  general  taxes, 
from  cases  involving  other  subject-matters, 
the  authorities  and  decisions  holding  that 
matters  involving  general  taxes  should  be 
given  a  most  liberal  construction. 

Turpin  v.  Lemon,  187  U.  S.  51,  47  L.  ed. 
70,  23  Sup.  Ct.  Rep.  20;  McGehee,  Due 
Process  of  Law,  p.  232;  Cooley,  Taxn.  3d 
ed.  53-55;  McMillen  v.  Anderson,  95  U.  S. 
41,  24  L.  ed.  335;  Kelly  v.  Pittsburgh,  104 
U.  S.  79,  26  L.  ed.  658;  Pittsburgh,  C.  C. 
A  St.  L.  R.  Co.  V.  Bac*^us,  154  U.  S.  425, 
38  L.  ed.  1036,  14  Sup.  Ct.  Rep.  1114. 

County  boards  of  equalization,  as  well  as 
state  boards  of  equalization,  have  the  right 
to  raise  or  lower  the  assessed  valuation  of 
all  property  within  a  particular  district  or 
county  without  notice  to  each  or  any  own- 
er of  such  property. 

State  ex  rel.  Jennings  Bros.  Invest.  Co. 
v.  Armstrong,  19  Utah,  117,  56  Pac.  1079; 
Territory  v.  First  Nat.  Bank,  10  N.  M. 
203,  65  Pac.  172;  SUte  R.  Tax  Cases,  02 
U.  S.  575,  23  L.  ed.  663;  Suydam  v.  Mer- 
rick County,  19  Neb.  155,  27  N.  W.  142; 
Carrico  v.  Crocker,  38  Okla.  440,  133  Pao. 
183. 
874 


Mr.  James  A.  Marsh  argued  the  cause, 
and,  with  Mr.  George  Q.  Richmond,  filed  a 
brief  for  defendant  in  error  Clair  J.  Pitch- 
er: 

The  constitutional  guaranty  of  due  process 
of  law  was  not  afforded  to  the  plaintiff  in 
error. 

Gale  V.  Statler,  47  Colo.  74, 105  Pac  858; 
Brown  v.  Denver,  7  Colo.  311,  3  Pac  455; 
People  ex  rel.  State  Normal  School  v.  State 
Bd.  of  Equalization,  20  Colo.  220,  37  Pac. 
964;  Security  Trust  &  S.  V.  Co.  v.  Lexing- 
ton, 203  U.  S.  323,  51  L.  ed.  204,  27  Sup. 
Ct  Rep.  87;  Central  of  Georgia  R.  Co.  v. 
Wright,  207  U.  S.  138,  52  L.  ed.  141,  28 
Sup.  Ct.  Rep.  47;  Londoner  v.  Denver,  210, 
U.  S.  373,  52  L.  ed.  1103,  28  Sup.  Ct.  Rep. 
708;  Taylor  v.  Louisville  &  N.  R.  Co.  31 
C.  C.  A.  537,  60  U.  S.  App.  166,  88  Fed. 
360;  Carney  v.  People,  210  111.  434,  71 
N.  E.  365;  Hovey  v.  Elliott,  167  U.  S. 
414,  42  L.  ed.  220,  17  Sup.  Ct.  Rep.  841; 
Chicago,  B.  &  Q.  R.  Co.  v.  Chicago,  166  U. 
S.  235,  41  L.  ed.  984,  17  Sup.  Ct.  Rep. 
581;  Galpin  v.  Page,  18  Wall.  350,  21  L. 
ed.  959;  Glidden  v.  Harrington,  189  U.  S. 
258,  47  L.  ed.  801,  23  Sup.  Ct.  Rep.  574; 
Turpin  v.  Lemon,  187  U.  S.  51,  47  L.  ed. 
70,  23  Sup.  Ct.  Rep.  20;  Hagar  v.  Recla- 
mation Dist.  Ill  U.  S.  701,  708,  28  L.  ed. 
569,  572,  4  Sup.  Ct  Rep.  663;  Railroad 
Tax  Cases,  8  Sawy.  238,  13  Fed.  752; 
Bellingham  Bay  &  B.  C.  R.  Co.  v.  New 
Whatcom,  172  U.  S.  318,  43  L.  ed.  461, 
19  Sup.  Ct.  Rep.  205;  Kimtz  v.  S^umption, 
117  Ind.  1,  2  L.R.A.  655,  19  N.  E.  474; 
Walsh  V.  State,  142  Ind.  357,  33  L.R.A. 
392,  41  N.  E.  65;  Lehman  v.  Robinson,  59 
Ala.  219;  Clcghorn  v.  Postlcwaite,  43  111. 
431 ;  Tolman  v.  Salomon,  191  111.  204,  60 
N.  E.  809;  State  ex  rel.  Ziegenhein  v. 
Spencer,  114  Mo.  574,  21  S.  W.  837;  Phil- 
lips  V.  New  Buffalo  Twp.  64  Mich.  683,  31 
N.  W.  582;  Winona  &  St.  P.  R.  Co.  v. 
Minnesota,  159  U.  S.  526,  40  L.  ed.  247, 
16  Sup.  Ct.  Rep.  83;  Weyerhaueser  v.  Min- 
nesoU,  176  U.  S.  550,  44  L.  ed.  583,  20 
Sup.  Ct.  Rep.  485;  Gallup  v.  Schmidt,  183 
U.  S.  305,  46  L.  ed.  212,  22  Sup.  Ct  Rep. 
162;  Coe  v.  Armour  Fertilizer  Works,  237 
U.  S.  413,  424,  59  L.  ed.  1027,  1031,  35 
Sup.  Ct.  Rep.  625;  St.  Louis  Southwestern 
R.  Co.  V.  Arkansas,  235  U.  S.  350,  362,  59 
L.  ed.  265,  271,  35  Sup.  Ct.  Rep.  99. 

Mr.  Justice  Hohnes  delivered  the  op  in* 
ion  of  the  court: 

This  is  a  suit  to  enjoin  the  State  Board 
of  Equalization  and  the  Colorado  Tax  Com- 
mission from  putting  in  force  and  the  de- 
fendant Pitcher,  as  assessor  of  Denver,  from 
obeying,  an  order  af  the  boards,  increasing 
the  valuation  of  all  taxable  property  in  Den- 
ver 40  per  cent  The  order  [444]  was  sus- 

ast  u.  8. 


19U. 


DAYTON  GOAL  &  I.  CO.  v.  CINCINNATI,  N.  O.  4  T.  P.  B.  00.     444-446 


tftinad  and  the  suit  directed  to  be  dismiBsed 
by  the  eupreme  court  of  the  state.  56  Colo. 
512,  188  Pac.  1010.  See  66  Colo.  343,.  138 
Pac  509.  The  plaintiff  is  the  owner  of  real 
«Btate  in  Denver,  and  brings  the  case  here  on 
the  ground  that  it  was  given  no  opportunity 
to  be  heard,  and  that  therefore  its  property 
will  be  taken  without  due  process  of  law, 
contrary  to  the  14th  Amendment  of  the  Con- 
stitution of  the  United  States.  That  is  the 
only  question  with  which  we  have  to  deal. 
There  are  suggestions  on  the  one  side  that 
the  construction  of  the  state  Constitution 
and  laws  was  an  unwarranted  surprise,  and 
on  the  other,  that  the  decision  might  have 
been  placed,  although  it  was  not,  on  the 
ground  that  there  was  an  adequate  remedy 
at  law.  With  these  suggestions  we  have 
nothing  to  do.  They  are  matters  purely  of 
state  law.  The  answer  to  the  former  needs 
no  amplification;  that  to  the  latter  is  that 
the  allowance  of  equitable  relief  is  a  ques- 
tion of  state  policy,  and  that  as  the  su- 
preme court  of  the  state  treated  the  merits 
as  Intimately  before  it,  we  are  not  to 
^>eculate  whether  it  might  or  might  not 
have  thrown  out  the  suit  upon  the  prelimi- 
nary ground. 

For  the  purposes  of  decision  we  assume 
that  the  constitutional  question  is  presented 
in  the  baldest  way, — ^that  neither  the  plain- 
tiff nor  the  assessor  of  Denver,  who  pre- 
sents a  brief  on  the  plaintiff's  side,  nor  any 
representative  of  the  city  and  county,  was 
l^ven  an  opportunity  to  be  heard,  other 
than  such  as  they  may  have  had  by  reason 
of  the  fact  that  the  time  of  meeting  of  the 
boards  is  fixed  by  law.  On  this  assumption 
it  is  obvious  that  injustice  may  be  suffered 
if  some  property  in  the  county  already  has 
been  valued  at  its  full  worth.  But  if  cer- 
tain property  has  been  valued  at  a  rate  dif- 
ferent from  that  generally  prevailing  in 
the  county,  the  owner  has  had  his  oppor- 
tunity to  protest  and  appeal  as  usual  in 
our  system  of  taxation  (Hagar  v.  Reclama- 
tion Dist.  Ill  U.  S.  701,  709,  710,  28  L.  ed. 
689,  572,  573,  4  Sup.  Ct.  Rep.  663),  so  that 
it  mnst  be  assumed  that  the  property  [445] 
owners  in  the  county  all  stand  alike.  The 
question,  then,  is  whether  all  individuals 
have  a  constitutional  right  to  be  heard  be- 
fore a  matter  can  be  decided  in  which  all  are 
equally  concerned, — ^here,  for  instance,  be- 
fore a  superior  board  decides  that  the  local 
taxing  officers  have  adopted  a  system  of 
undervaluation  throughout  a  cpunty,  as 
notoriously  often  has  been  the  case.  The 
answer  of  this  court  in  the  State  R.  Tax 
Cases,  02  U.  8.  575,  23  L.  ed.  663,  at  least, 
ma  to  any  further  notice,  was  that  it  was 
hard  to  believe  that  the  proposition  was 
■eriously  made.  | 

Where  a  rule  of  conduct  applies  to  more 

•e  ii.  ed. 


than  a  few  people,  it  is  impracticable  that 
everyone  should  have  a  direct  voice  in  its 
adoption.  The  Constitution  does  not  re- 
quire all  public  acts  to  be  done  in  town 
meeting  or  an  assembly  of  the  whole.  Gen- 
eral statutes  within  the  state  power  are 
passed  that  affect  the  person  or  property  ol 
individuals,  sometimes  to  the  point  of  ruuHf 
without  giving  them  a  chance  to  be  heard. 
Their  rights  are  protected  in  the  only  way 
that  they  can  be  in  a  complex  society,  bj 
their  power,  immediate  or  remote,  over 
those  who  make  the  rule.  If  the  result  in 
this  case  bad  been  reached,  as  it  might  have 
been  by  the  state's  doubling  the  rate  of 
taxation,  no  one  would  suggest  that  the 
14th  Amendment  was  violated  unless  every 
person  affected  had  been  allowed  an  oppor- 
tunity to  raise  his  voice  against  it  before 
the  body  intrusted  by  the  state  Constitu- 
tion with  the  power.  In  considering  this 
case  in  this  court  we  must  assume  that  the 
proper  state  machinery  has  been  used,  and 
the  question  is  whether,  if  the  state  Con- 
stitution had  declared  that  Denver  had  been 
undervalued  as  compared  with  the  rest  of 
the  state,  and  had  decreed  that  for  the  cur- 
rent year  the  valuation  should  be  40  per 
cent  higher,  the  objection  now  urged  could 
prevail.  It  appears  to  us  that  to  put  the 
question  is  to  answer  it.  There  must  be  a 
limit  to  individual  argument  in  such  mat- 
ters if  government  is  to  go  on.  In  Lon- 
doner V.  Denver,  210  U.  S.  373,  385,  52  L. 
ed.  1103,  1112,  28  Sup.  Ct.  Rep.  708,  [446] 
a  local  board  had  to  determine  "wheth- 
er, in  what  amount,  and  upon  whom"  a 
tax  for  paving  a  street  should  be  levied 
for  special  benefits.  A  relatively  small 
number  of  persons  was  concerned,  who 
Were  exceptionally  affected,  in  each  case 
upon  individual  grounds,  and  it  was  held 
that  they  had  a  right  to  a  hearing.  But 
that  decision  is  far  from  reaching  a  gen- 
eral determination  dealing  only  with  the 
principle  upon  which  all  the  assessments  in 
a  county  had  been  laid. 
Judgment  affirmed. 


DAYTON    COAL    &     IRON    COMPANY, 
Limited,  Plff.  in  Err., 

V. 

CINCINNATI,  NEW  ORLEANS,  &  TEXAS 
PACIFIC  RAILWAY  COMPANY,  Nash- 
ville, Chattanooga,  &  St.  Louis  Railway 
Company,  and  Western  k  Atlantic  Rail- 
road Company. 

(See  S.  C.  Reporter's  ed.  446-451.) 

Error  to  state  court  —  scope  of  rerlew 
^  Jurisdiction  below. 

1.  The  judgment  of  the  highest  state 


SUPREME  COURT  OF  THE  UNITED  STATES.  Oct.  Tboc, 


court  ordering  a  bill  and  cross  bill  to  be 
dismissed  for  want  of  jurisdiction  is  con- 
clusive upon  the  Federal  Supreme  Court  on 
writ  of  error  unless  the  denial  of  a  Federal 
right  is  involved. 

[For  other  cases,  see  Appeal  and  Error,  2209- 
2226,  in  Digest  Sup.  Ct.  1908.] 

Carriers  —  establishing  Joint  rates  — 
restriction  to  published  tariffs. 


by  the  initial  carrier  over  the  protest  of  a 
party  thereto. 

Camden  Iron  Works  t.  United  States,  85 
C.  C.  A.  685,  158  Fed.  561;  Black  Horse 
Tobacco  Co.  v.  Illinois  C.  R.  Co.  17  Inters. 
Com.  Rep.  588;  Judson,  Interstate  Com- 
merce, 2d  ed.  §§  313,  314;  Louisville  k  N. 
R.  Co.  v.  Dickerson,  112  C.  C.  A.  295,  191 

2.  A  through  freight  rate  duly  filed  by  Fed.  709 ;  Chicago,  B.  k  Q.  R.  Co.  t.  United 

the  initial  carrier  with  the  IntersUte  Com-  states,  85  C.  C.  A.  194,  157  Fed.  830. 
merce  Commission  became  on  its  effective 

date  the  lawful  through  joint  rate,  and  the  Mr.  M.  M.  Allison  argued  the  cause  for 
only  one  which  the  connecting  carrier  might  defendant  in  error  the  Cincinnati,  New  Or- 
is wfully  receive  or  the  shipper  properly  pay,  leans,  &  Texas  Pacific  Railway  Company, 
where  such  connecting  carrier  received  the 

new  tariff  and  stamped  and  filed  it,  and.  Mr.  Joseph  E.  Brown  argued  the  cause, 
without  giving  any  formal  notice  to  the  and,  with  Messrs.  Foster  V.  Brown,  Frank 
initial  carrier  of  its  acceptance,  which  was  Spurlock,  and  Claude  Waller,  filed  a  brief 
not  at  that  time  required  by  the  Interstate  for  defendants  in  error  the  Nashville,  Chat- 
Commerce  Commission,  acted  upon  such  tanooga,  &  St.  Louis  Railway  Company  and 
tariff,  insisting  that  the  new  rate  was  the  the  Western  &  Atlantic  Railroad  Company: 

{^^SlauTpa^y^^^^^^^^^^                            "'"^^^^  ,J»^e  courts  of  Tenn^ee  omnot^li^e 

[For  other  csrcs.  see  Carriers.  III.  g,  In  Dl-  *"«  plaintiff  m  error  from  the  controlling 

sest  Sup.  Ct.  1908.]  effect  of  the  rate  filed  with  the  Commission 

|.^      g.  .  by  the  defendant  in  error.    The  plaintiff  in 

'-            '^  error  could  only  be  relieved  from  the  bind- 

Argued  November  12.   1915.     Decided  De-  i"f  '^'f*^  °^*^*»  "**^^y  ^f  *^^«*  °^  **"• 

cember  20    1915  Interstate  Commerce  Commission. 

'  Texas  &  P.  R.  Co.  v.  Abilene  Cotton  Oil 

IN  ERROR  to  the  Supreme  Court  of  the  Co.  204  U.  S.  426,  61  L.  ed.  653,  27  Sup. 

State  of  Tennessee  to  review  a  decree  Ct.  Rep.  350,  9  Ann.  Cas.  1076;  Baltimore 

which,  reversing  a  decree  of  the  Chancery  *  C.  R.  Co.  v.  United  States,  215  U.   S. 

Court  of  Hamilton  County,  in  that  state,  di-  ^^^>  ^  ^-  «d-  ^92,  30  Sup.  Ct.  Rep.  164; 

rected  the  dismissal  of  the  original  bill  and  Robinson  v.  Baltimore  ft  0.  R.  Co.  222  U. 

cross  bill  in  a  suit  between  shipper  and  car-  S.  506,  56  L.  ed.  288,  32  Sup.  Ct.  Rep.  114; 

rier  over  the  right  of  the  latter  to  enforce  MitcheU  Coal  ft  Coke  Co.  v.  Pennsylvania 

a  new  through  joint  freight  rate.    Affirmed.  R.  Oo,  230  U.  S.  247,  57  L.  ed.  1472,  3S 

See  same  case  below,  183  8.  W.  739.  Sup.  a.  Rep.  916. 

ITie  facts  are  stated  in  the  opinion.  The  publication   and   filing  of  the  rate 

,    ,                      .  of  70  cents  per  ton  by  the  defendant   in 

^^^'^^^^^^y^'^i^Y^l^.^^  **"?'. 't'^i  ^"^^'  «>^^'i°g  **>«  transportation  of  iron 

Mr.  W.  B.  MiUer  filed  a  brief  for  plaintiff  ^^^e  between  the  points  named  therein,  so 

in  error:                                                        ^  l^^ig  ^^  jt  remained  uncanceled  by  the  In- 

The  state  court  had  jurisdiction  to  m-  terstate  Commerce  Commission,  was  as  fixed 

quire  whether  the  original  joint  and  law-  ^^d  unalterable,  either  by  the  shipper  or 

fully  established  rate  from  Cartersville  to  ^y  the  carrier,  as  if  that  particular  rate 

Dayton,  via  Chattanooga,  had  been  changed  jj^d  been  established  by  an  act  of  Congress. 

in  the  manner  required  by  the  act,  and  if  ^fter  the  filing  of  this  rate  it  became  the 

so,  what  change  therein  resulted.  absolute  duty  of  the  defendant  in  error  to 

Clafiin  V.  Houseman,  93  U.  S.  130-143,  ^gg^g  ^^  ^He^  the  freight  charges  speci- 

23  L.  ed.  833-840;  Pennsylvania  R.  Co.  v.  ^^  therein,  and  it  would  have  been  unUw- 

PuriUn  Coal  Min.  Co.  237  U.  S.  131,  59  f^y  f^^  jt  to  have  collected  any  other  or 

L.  ed.  873,  35  Sup.  Ct.  Rep.  484;  Illinois  different  rate. 

C.  R.  Co.  V.  Mulberry  Hill  Coal  Co.  238  United  States  ▼.  New  York  C.  ft  H.  R. 

U.  S.  275,  69  L.  ed.  1306,  35  Sup.  a.  Rep.  R.  Co.  212  U.  S.  509,  53  L.  ed.  629,  29  Sup. 

760.  Ct.  Rep.  309;  Armour  Packing  Co.  v.  United 

An  agreed  joint  rate  may  not  be  changed  States,  209  U.  S.  56,  83,  52  L.  ed.  681,  695, 


Note. — On  the  general  subject  of  writs 
of  error  from  United  States  Supreme  Court 
to  state  courts — see  notes  to  Martin  v.  Hun- 
ter, 4  L.  ed.  U.  S.  97;  Hamblin  v.  Western 
Land  Co.  37  L.  ed.  U.  S.  267 ;  Re  Buchanan, 
39  L.  ed.  U.  S.  884;  and  Kipley  v.  Illinois, 
42  L.  ed.  U.  S.  998. 

On  what  questions  the  Federal  Supreme 


Court  will  consider  in  reviewing  the  judg- 
ments of  state  courts — see  note  to  Missouri 
»x  rel.  Hill  v.  Dockery,  63  L.R.A.  571. 

As  to  the  right  of  a  carrier  to  recover 
difference  between  rate  charged  shipper  and 
proper  rste — see  note  to  Central  R.  Co.  t. 
Mauser,  49  L.R.A.(N.S.)  92. 


1915.  DAYTON  COAL  ft  I,  CO.  v.  CINCINNATI,  N.  O.  ft  T.  P.  B.  00.     447,  448 


28  Sup.  Ct.  Rep.  428;  PemiflylTaiiia  R.  Co. 
T.  International  Coal  Min.  Co.  230  U.  & 
184,  67  L*.  ed.  1446,  33  Sup.  Ct  Rep.  893; 
Mitchell  Coal  ft  Coke  Co.  y.  Pennsylvania 
R  Co.  230  U.  S.  247,  57  L.  ed.  1472,  33 
Sup.  Ct.  Rep.  916;  Boston  ft  M.  R.  Co.  v. 
Hooker,  233  U.  S.  97,  58  L.  ed.  868,  L.ILA. 
191«B,  450,  34  Sup.  Ct.  Rep.  526,  Ann.  Cas. 
1915B,  593. 

The  quotation  of  a  rate,  or  a  contract 
for  a  rate,  less  than  the  established  rate,  or 
one  afterwards  established  by  the  carrier,  is 
not  binding  upon  the  carrier. 

Gulf,  C.  &  S.  P.  R.  Co.  V.  Hefley,  168  U. 
&  98,  39  I*,  ed.  910,  15  Sup.  Ct.  Rep.  802; 
Armour  Packing  Co.  v.  United  States,  209 
U.  S.  66,  83,  62  L.  ed.  681,  696,  28  Sup. 
Ct.  Rep.  428;  Texas  ft  P.  R.  Co.  v.  Mugg, 
202  U.  S.  242,  50  L.  ed.  1011,  26  Sup.  Ct. 
Rep.  628;  Louisville  ft  N.  R.  Co.  v.  Mottley, 
219  U.  S.  467,  56  L.  ed.  297,  34  L.RJl.(N.S.) 
671,  31  Sup.  Ct.  Rep.  265;  Illinois  C.  R.  Co. 
T.  Henderson  Elevator  Co.  226  U.  S.  441, 
57  L.  ed.  290,  33  Sup.  Ct.  Rep.  176;  Boston 
ft  M.  R.  Co  V.  Hooker,  233  U.  S.  97,  58  L. 
ed.  868,  L.R.A.1916B,  460,  34  Sup.  Ct.  Rep. 
526,  Ann.  Cas.  1915D,  593;  Louisville  ft  N. 
R.  Co.  V.  Maxwell,  237  U.  S.  99,  69  L.  ed. 
855,  L.R.A.1915E,  665,  P.U.R.1916C,  300, 
35  Sup.  Ct.  Rep.  494. 

An  actual  concurrence  is  not  necessary 
to  the  lawfulness  or  validity  of  a  joint 
freight  rate. 

United  States  v.  New  York  C.  ft  H.  R. 
R.  Co.  212  U.  S.  609,  53  L.  ed.  629,  29  Sup. 
Ct.  Rep.  313. 

Since  the  enactment  of  the  act  to  regulate 
commerce  and  the  amendments  thereto  the 
Interstate  Commerce  Commission  has  uni- 
formly exercised  the  jurisdiction  and  power 
to  determine  the  reasonableness  and  legality 
of  interstate  freight  rates,  and  has  held 
that  joint  through  rates  are  legal,  although 
not  concurred  in  by  the  carriers  named  in 
the  schedule. 

Robertson  Paper  Co.  v.  Boston  ft  M.  R. 
Co.  21  Inters.  Com.  Rep.  254. 

Participation  by  one  of  several  carriers 
in  a  rate  named  in  tariffs  filed  by  others  is 
evidence  of  the  lawful  rate  as  against  such 
participating  carrier,  and  the  initial  line 
publishing  such  a  tariff  thereby  becomes  re-, 
sponsible  to  the  shipper  under  the  tariff. 

Camden  Iron  Works  v.  United  States,  85 
C.  C.  A.  585,  158  Fed.  561;  Chicago,  B. 
ft  Q.  R.  Co.  V.  United  States,  86  C.  C.  A. 
194,  157  Fed.  830;  Kansas  City  Southern  R. 
Co.  V.  C.  H.  Albers  Commission  Co.  223  U. 
8.  573,  56  L.  ed.  556,  82  Sup.  Ct  Rep.  316. 

Mr.  Justice  Day  delivered  the  opinion  of 
the  court: 

Tlie  Dayton  Coal  ft  Iron  Company,  Limit- 
ed, hereinafter  called  the  Dayton  Company, 
•0  L.  ed. 


filed  its  bill  in  the  chancery  court  at  Chatta- 
nooga, Tennessee,  seeking  to  enjoin  the  Cin- 
cinnati, New  Orleans,  ft  Texas  Pacific  Rail* 
way  Company,  generally  known  as,  and 
hereinafter  called,  the  Southern  Railway, 
from  prosecuting  a  certain  suit  in  the  Unit- 
ed States  circuit  court  for  the  southern 
district  of  Ohio,  brought  by  the  Southern 
Railway  against  the  Dayton  Company  to 
recover  upon  certain  shipments  of  iron  ore 
which  it  was  alleged  had  been  shipped  at  a 
tariff  of  70  cents  per  ton,  being  10  cents 
more  per  ton  than  the  Dayton  Company 
contended  was  the  true  rate  on  such  ship- 
ments. The  difference  amounted  to  $4,- 
933.08,  for  which  sum  the  Federal  suit  was 
brought. 

The  shipments  of  iron  ore  were  made 
from  Carterville,  and  other  points  in 
Georgia,  to  Da3rton,  Tennessee,  the  Nash- 
ville, Chattanooga,  ft  St.  Louis  Rail- 
way Company,  operating  the  Western  ft  At- 
lantic Railroad  Company,  being  the  initial 
carrier.  The  bill  averred  that  the  Dayton 
Company  had  a  defense  against  the  action 
in  the  Federal  court,  partly  legal  and  part- 
ly equitable,  and  that  the  [448]  Nashville* 
Chattanooga,  ft  St.  Louis  Railway  Company 
and  the  Western  ft  Atlantic  Railroad  Com- 
pany were  necessary  and  proper  parties  to 
the  determination  of  the  controversy,  and 
were  not  within  the  jurisdiction  of  the  Fed- 
eral court.  It  was  further  charged  that  the 
freight  contract  was  binding  upon  all  the 
parties  for  60  cents  per  ton,  and  that  each 
and  all  of  the  defendants  were  bound  by 
that  rate. 

The  Southern  Railway  answered,  setting 
up,  among  other  things,  that,  according  to 
the  requirements  of  the  Federal  act  to  regu- 
late commerce,  as  amended  in  1906  [34 
Stat,  at  L.  684,  chap.  3591,  Comp.  Stat. 
1913,  §  8563],  the  Nashville,  Chattanooga, 
ft  St.  Louis  Railway  duly  filed  and  pub- 
lished a  schedule  known  as  "Tariff  I.  C.  C. 
#1351  A,"  showing  the  joint  rate  for  the 
transportation  of  iron  ore  from  Carters- 
ville,  Georgia,  and  nearby  points,  to  Dayton, 
Tennessee,  to  be  70  cents  a  ton,  and  that 
that  tariff  became  effective  on  March  5th, 
1907;  that  the  Southern  Railway  was 
named  as  one  of  the  parties  to  this  joint 
tariff,  and  it  and  the  other  defendants  were 
bound  by  it  and  prohibited  by  law  from 
charging  more  or  less  than  the  tariff  named 
and  filed ;  that  after  the  tariff  went  into  ef- 
fect on  March  5th,  1907,  the  Southern  Rail- 
way billed  to  the  Dayton  Company  iron  ore 
shipped  from  Cartersville,  Georgia,  and 
from  Emerson  ft  Rogers,  Georgia,  to  Day- 
ton, Tennessee,  covered  by  the  through  tariff 
rate,  filed  as  aforesaid,  at  the  rate  of  70 
cents  per  ton,  and  insisted  and  still  insists 
upon  the  payment  of  that   rate;  that  the 

S77 


448H161 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oor.  TiBM, 


Dayton  Company,  insisting  that  the  rate 
was  10  cents  over  the  legal  rate,  had  settled 
its  freight  bills  monthly,  making  a  deduc- 
tion of  10  cents  by  an  arrangement  witli  the 
Southern  Company;  that  the  Dayton  Com- 
pany refused  to  pay  this  difference,  and 
therefore  the  suit  was  brought  in  the  United 
States  circuit  court  for  the  southern  dis- 
trict of  Ohio,  and  that  before  answering  in 
that  suit  complainant  had  filed  the  present 
bill,  though  the  suit  in  the  United  States 
court  was  still  pending  and  [449]  undeter- 
mined. The  other  railroad  companies  de- 
fendants also  filed  an  answer,  making  like 
allegations  as  to  the  making  and  filing  of 
the  70-cent  rate,  eifectiye  March  6th,  1907. 

The  Southern  Railway  filed  a  cross  bill, 
in  which  it  again  set  up  the  alleged  legal 
effect  of  the  filing  of  the  70-cent  rate  to 
take  effect  on  March  5th,  1907,  averring 
that  it  had  paid  the  Nashville,  Chattanooga, 
ft  St.  Louis  Railway  Company  its  propor- 
tion of  said  rate,  and  that  the  difference  be- 
tween the  60-  and  70-cent  rate  was  due  to  it 
from  the  Dayton  Company,  and  asked  that 
it  be  given  judgment  upon  its  cross  bill 
against  that  company  on  that  account  for 
the  sum  of  $4,933.08;  or,  if  it  should  be  de- 
termined that  it  was  not  entitled  thereto, 
because  of  the  illegality  of  the  published 
rate,  made  and  insisted  upon  by  the  Nash- 
ville, Chattanooga,  &  St.  Louis  Railway 
Company,  that  it  have  judgment  for  that 
amount  against  its  codefendant,  the  Nash- 
ville, Chattanooga,  &  St.  Louis  Railway 
Company.  Answers  were  filed  to  this  cross- 
bill. 

Upon  hearing,  the  chancery  court  de- 
termined the  case  in  favor  of  the  complain- 
ant, holding  that  the  70-cent  rate  was 
illegal,  inequitable,  and  unenforceable,  and 
that  the  complainant  was  entitled  to  the 
60-cent  rate,  as  contended  for  by  it ;  and  en- 
joined the  Southern  Railway  from  prose- 
cuting its  suit  in  the  Federal  court  except 
for  certain  items  not  included  in  the  contro- 
versy about  the  rates,  and  held  that  upon 
the  cross  bill  the  Southern  Railway  was  en- 
titled to  recover  from  the  Nashville,  Chatta- 
nooga, &  St.  Louis  Railway  Company  the 
10  cents  per  ton  which  the  latter  company 
had  received  because  of  ore  shipped  by 
complainant  from  Cartersville  and  other 
southern  points  to  Dayton,  Tennessee,  un- 
der color  and  by  reason  of  the  70-cent  rate. 
Upon  appeal,  the  supreme  court  of  Tennes- 
see reversed  the  decree  of  the  chancery 
court,  and  held  that  the  70-cent  rate  was 
[450]  the  legal  rate  in  force  from  and  after 
March  5th,  1907,  and  that  if  it  had  jurisdic- 
tion to  determine  the  case  it  would  so  de- 
cide. For  reasons  set  forth  in  its  opinion, 
however,  it  reached  the  conclusion  that,  be- 
cause'of  the  acts  of  Congress  concerning  the 


Interstate  Commerce  Commission,  there  was 
no  jurisdiction  to  entertain  the  original  bill, 
and  that  it  and  the  cross  bill  must  be  dis- 
missed. It  is  to  reverse  this  decision  that 
the  writ  of  error  in  this  case  was  sued  out. 

The  supreme  court  of  Tennessee  is,  of 
course,  the  ultimate  judge  of  the  extent  of 
its  jurisdiction,  and  unless  a  denial  of  Fed- 
eral rights  is  involved,  its  decision  upon 
that  subject  is  final  and  conclusive.  From 
what  we  have  already  said,  however,  it  is 
apparent  that  the  real  Federal  question  in- 
volved in  this  controversy  concerns  the 
right  of  the  Southern  Railway  to  enforce 
the  70-cent  rate  on  the  shipments  of  iron 
ore  from  Cartersville  and  other  points  in 
Georgia  to  Dayton,  Tennessee.  Upon  this 
point  the  supreme  court  reached  the  con- 
clusion that  the  70-cent  rate  was  the  only 
legal  rate  in  force  at  the  time  of  the  ship- 
ments; that  it  was  filed  with  the  Interstate 
Commerce  Commission  on  February  2d, 
1907,  to  take  effect  on  March  5th,  1907; 
that  it  was  thus  filed  by  the  Nashville, 
Chattanooga,  k  St.  Louis  Railway  Com- 
pany and  duly  received  and  stamped  by  the 
Southern  Railway  as  the  connecting  car- 
rier; and  that  the  last-named  railroad  con- 
curred in  the  tariff  by  receiving  freight 
under  that  schedule  and  making  settlements 
under  it.  This  made  the  rate  a  joint  one, 
in  accordance  with  the  rulings  of  the  Inter- 
state Commerce  Commission  at  that  time» 
and  under  tlie  interstate  commerce  act  there 
could  be  no  departure  from  this  published 
rate. 

Our  examination  of  the  record  (Kansas 
City  Southern  R.  Co.  ▼.  C.  H.  Albers  Com- 
mission Co.  223  U.  S.  573,  56  L.  ed.  656, 
32  Sup.  Ct.  Rep.  316)  satisfies  us  tiiat 
upon  this  question  of  the  legal  effect  of  the 
filed  tariffs  and  the  consequent  establish- 
ment of  the  70-cent  rate  the  supreme  [451] 
court  of  Tennessee  was  clearly  right  It  ap- 
pears that  the  70-cent  rate  was  duly  filed 
by  the  Nashville,  Chattanooga,  &  St.  Louis 
Railway  Company  with  the  Interstate  Com- 
merce Commission;  that  it  became  effective 
upon  March  5th,  1907;  that  ttie  connecting 
carrier,  the  Southern  Railway,  received  the 
tariff  and  stamped  and  filed  it,  and  acted 
upon  it,  insisting  that  70  cents  was  the 
legal  rate,  although  permitting  the  Dayton 
Cpmpany  to  make  payments  at  the  rate  of 
60  cents  per  ton.  Such  payments  could  not 
have  the  effect  to  modify  the  right  of  the 
parties  to  insist  upon  the  legal  rate  as  filed 
and  published.  True,  the  Southern  Rail- 
way did  not  formally  inform  the  initial 
carrier  of  its  acceptance  of  this  tariff;  nor 
was  this  necessary.  United  States  y.  New 
York  C.  k  H.  R.  R.  Co.  212  U.  S.  509,  5S 
I  L.  ed.  629,  29  Sup.  Ct.  Rep.  313.  This  prac- 
tice of  acceptance  without    formal    notice 

2St  U.  8. 


1916. 


CHICAGO  &  A.  R.  00.  V.  WAGNER. 


451,  462 


reeognised  by  the  Interstate  Commerce 
Commfwion,  as  appears  by  its  orders  set 
oat  in  the  record,  until  the  order  of  the 
Commission  in  May,  1907,  requiring  accept- 
ance to  be  specifically  given  and  certified 
to  the  Commissicm,  thus  avoiding  the  con- 
fusion and  misunderstandings  which  arose 
under  the  former  practice. 

That  it  is  essential  to  the  maintenance  of 
uniform  rates  and  the  avoidance  of  rebates 
and  preferential  treatment  that  the  tariff 
rates  filed  with  the  Commission  according 
to  the  interstate  oommerce  act»  while  in 
force,  shall  be  the  only  rates  which  the  car- 
rier may  lawfully  receive  or  the  shipper 
pn^>erly  pay  is  too  thoroughly  settled  by 
the  former  decisions  of  this  court  to  require 
further  discussion.  The  principle  is  stated 
and  many  previous  cases  in  this  court  cited 
in  a  case  decided  at  the  last  term, — ^Louis- 
▼iDe  &  N.  R.  Co.  v.  Maxwell,  237  U.  S.  94, 
97,  98,  59  L.  ed.  853,  865,  L.ILA.1915E, 
666,  P.U.R.1916C,  300,  35  Sup.  Ct.  Rep. 
494. 

It  follows  that  the  Supreme  Court  of 
Tennessee  did  not  err,  in  so  far  as  any 
Federal  right  is  involved,  in  the  judgment 
rendered  dismissing  the  bilL 

Affirmed. 


[462]    CHICAGO  &  ALTON  RAILROAD 
COBiPANY,  Plff.  in  Err., 

V. 

JOSEPH  M.  WAGNER. 

(See  S.  a  Reporter's  ed.  462-468.) 

Error  to  state  oonrt  ^  Federal  question 
—  release  of  one  Joint  tort  feasor. 

1.  The  contention  that  an  agreement  by 
a  railway  employee  that  his  acceptance  of 
''benefits  for  injury"  from  a  railway  com- 
pany's relief  department  shall  release  the 
company  from  all  liability  for  damages  grow- 
ing out  of  such  injury,  athough  it  may  be 

Note. — On  the  general  subject  of  vn'its 
of  error  from  United  States  Supreme  Court 
to  state  courts — see  notes  to  Martin  v.  Him- 
ter,  4  L.  ed.  U.  S.  97;  Hamblin  v.  Western 
Land  Co.  37  1m  ed.  U.  S.  267 ;  Re  Buchanan, 
39  L.  ed.  U.  S.  884;  and  Kipley  ▼.  Hlinois, 
42  L.  ed.  U.  S.  998. 

On  what  questions  the  Federal  Supreme 
Court  will  consider  in  reviewing  the  judg- 
ments of  state  courts — see  note  to  Mis- 
souri ex  rel.  Hill  v.  Dockery,  63  L.R.A.  671. 

As  to  the  effect  of  release  of  one  joint 
tort  feasor  on  liability  of  other — see  note  to 
Abb  V.  Northern  P.  R.  Co.  58  L.RA.  293. 

On  the  constitutional^^,  application,  and 
effect  of  the  Federal  empkr^ers'  liabili^  act 
—see  note  to  Lainphere  v.  Oregon  R.  &  Nav. 
Co.  47  LJI.A.(NJ.)  38;  Seaboard  Air  Line 
R.  Co.  V.  Horton»  LJLA.  1916C,  47. 
•0  L.  ed. 


invalid  as  to  such  company  under  the  Fed- 
eral employers'  liability  act  of  April  22, 1908 
(36  Stat,  at  L.  65,  chi^.  149,  Comp.  Stat. 
1913, 1  8661),  S  6,  operates  to  discharge  an- 
other railway  company  as  a  joint  tort  feasor 
from  its  common-law  liability,  presents  no 
Federal  question  which  may  be  reviewed  by 
the  Federal  Supreme  Court  on  writ  of  er- 
ror to  a  state  court,  where  the  latter  court 
held  that  the  release,  being  invalid  as  to  the 
employing  company,  was  not  available  as 
a  defense  to  the  other  company. 
[For  other  cases,  see  Appeal  and  Error,  2072-> 
2128,   in  Digest  Sup.  Ct;   1908.] 

Joint  tort  feasors  —  release  of  one  ^ 
effect  of  employers'  liability  act. 
2.  An  agreement  by  a  railwav  employee 
that  his  acceptanee  of  "benefits  lor  injury" 
from  the  railway  company's  relief  depart- 
ment shall  release  the  company  from  all 
liability  for  damages  growing  out  of  such 
injury,  which  would  1^  invalid  as  to  the 
employing  company  imder  the  Federal  em- 
ployers' aability  act  of  April  22,  1908  (35 
Stat,  at  L.  66,  chap.  149,  Comp.  Stat  1913, 
I  8601),  §  5,  if  sued  under  that  act  by  an 
employee  engaged  at  the  time  of  injury  in 
interstate  commerce,  must  also  be  deemed 
invalid  in  an  action  by  such  employee 
against  another  railway  company  which,  be- 
cause of  such  agreement,  seeks  to  escape  its 
common-law  liability  for  the  injury  on  the 
theory  that  it  was  a  joint  tort  feasor,  and 
that  the  release  of  one  joint  tort  feasor  is 
the  release  of  all,  since  it  is  impossible  to 
determine  whether  the  employing  company 
is  discharged  except  by  determining  what 
would  happen  were  it  sued. 
[Matters  as  to  joint  tort  feasors,  see  Joint 
Creditors  and  Debtors,  in  Digest  Svp.  Ct. 
1908.1 

[No.  376.] 

Submitted  November  29,  1915.    Decided  De- 
cember 20,  1915. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Illinois  to  review  a  judgment 
which  affirmed  a  judgment  of  the  Appellate 
Court  of  that  state  for  the  First  District, 
modifying,  and  affirming  as  modified,  a 
judgment  of  the  Superior  Court  of  Cook 
County  in  favor  of  plaintiff  in  a  personal- 
injury  suit.    Affirmed. 

See  same  ease  below,  266  111.  245,  106  N. 
E.  809,  Ann.  Cas.  1916A,  778. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Silas  H.  Strawn,  Sdward  W. 
Brerett,  and  J.  Sidney  Condit  submitted 
the  cause  for  plaintiff  in  error: 

Section  6  of  the  employersj  liability  act 
is  inapplicable  in  this  case  because  plaintiff 
was  not  an  employee  of  defendant. 

Robinson  v.  Baltimore  4  O.  R.  Co.  237 
U.  S.  84,  69  L.  ed.  849,.  36  Sup.  Ct.  Rep. 
491,  8  N.  C.  C.  A.  1;  Missouri,  K.  4  T. 
R.  Co.  V.  West,  232  U.  S.  682,  68  L.  ed.  796, 
34  Sup.  Ct  Rep.  47L 


454,  455 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Got.  Tkbic 


Section  5  of  the  employers'  liability  act 
does  not  invalidate  a  release,  resultant  to 
a  joint  tort  feasor  from  the  acceptance  of 
relief  benefits  under  a  relief  contract. 

Robinson  v.  Baltimore  &.  0.  R.  Co.  supra. 

The  misapplication  of  §  5  of  the  em- 
ployers' liability  act»  and  th&  denial  of 
plaintiff's  asserted  construction  thereof,  pre- 
sent a  Federal  question  giving  this  court 
jurisdiction. 

Seaboard  Air  Line  R.  Ck).  v.  Horton,  233 
U.  S.  492,  499,  58  L.  ed.  1062,  1068,  L.R^. 
101 5C,  1,  34  Sup.  Ct.  Rep.  635,  8  N.  C.  C. 
A.  834,  Ann.  Cas.  1915B,  475;  St.  Louis, 
I.  M.  k  S.  R.  Co.  v.  McWhirter,  229  U.  S. 
265,  57  L.  ed.  1179,  33  Sup.  Ct.  Rep.  858; 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Taylor,  210 
U.  S.  281,  292,  52  L.  ed.  1061,  1066,  28 
Sup.  Ct.  Rep.  616,  21  Am.  Neg.  Rep.  404; 
Seaboard  Air  Line  R.  Co.  v.  Tilghman,  237 
U.  S.  499,  59  L.  ed.  1069,  35  Sup.  Ct.  Rep. 
653;  Toledo,  St.  L.  &  W.  R.  Co.  v.  Slavin, 
236  U.  S.  454,  59  L.  ed.  671,  35  Sup.  Ct. 
Rep.  306;  Seaboard  Air  Line  R.  Co.  v.  Pad- 
gett, 236  U.  S.  668,  59  L.  ed.  777,  35  Sup. 
Ct.  Rep.  481;  Southern  R.  Co.  v.  Crockett, 
234  U.  S.  725,  58  L.  ed.  1564,  34  Sup.  Ct. 
Rep.  897;  Missouri,  K.  &  T.  R.  Co.  v.  West, 
232  U.  8,  682,  58  L.  ed.  795,  34  Sup.  Ct. 
Rep.  471;  Nutt  v.  Knut,  200  U.  S.  12,  19, 
50  L.  ed.  348,  852,  26  Sup.  Ct.  Rep.  216; 
McCormick  y.  Market  Nat.  Bank,  165  U. 
S.  538,  41  L.  ed.  817,  17  Sup.  Ct.  Rep. 
433;  El  Paso  &  N.  E.  R.  Co.  v.  Gutierrez, 
215  U.  S.  87,  54  L.  ed.  106,  30  Sup.  Ct. 
Rep.  21;  Straus  v.  American  Publishers' 
Asso.  231  U.  S.  222,  58  L.  ed.  192,  L.R.A. 
1915A,  1099,  34  Sup.  Ct.  Rep.  84,  Ann.  Cas. 
1915 A,  369;  Houston  &  T.  C.  R.  Co.  t. 
Texas,  177  U.  S.  66,  67,  44  L.  ed.  673,  674, 
20  Sup.  Ct.  Rep.  545;  Buel  v.  Van  Ness,  8 
Wheat.  312,  321,  5  L.  ed.  624,  626;  Mat- 
thews V.  Zane,  4  Cranch,  382,  2  L.  ed.  654. 

Where  the  highest  court  of  the  state 
assumes  that  the  record  sufficiently  presents 
for  its  decision  a  question  of  Federal  right, 
this  court  will  take  jurisdiction. 

Mallinckrodt  Chemical  Works  v.  Missouri, 
238  U.  S.  41,  59  L.  ed.  1192,  35  Sup.  Ct. 
Rep.  671;  Chambers  v.  Baltimore  &.  O.  R. 
Co.  207  U.  S.  142,  148,  52  L.  ed.  143,  146, 
28  Sup.  Ct.  Rep.  34;  San  Jos^  Land  k  Water 
Co.  V.  San  Jo84  Ranch  Co.  189  U.  S.  177,  47 
L.  ed.  765,  23  Sup.  Ct.  Rep.  487;  Montana 
ex  rel.  Haire  v.  Rice,  204  U.  S.  291,  51  L. 
ed.  490,  27  Sup.  Ct.  Rep.  281;  Home  for 
Incurables  v.  New  York,  187  U.  S.  157, 
47  L.  ed.  118,  63  L.R.A.  320,  23  Sup.  Ct. 
Rep.  84;  Missouri,  K.  &  T.  R.  Co.  ▼.  Elliott, 
184  U.  S.  530,  46  L.  ed.  673,  32  Sup.  Ct. 
Rep.  446. 

Mr.  James  C.  McShane  submitted  the 
cause  for  defendant  in  error: 

The  state  court's  holding  that  plaintiff's  | 
S80 


acceptance  of  benefits  from  the  Burlington 
relief  department  did  not  operate  as  a  re- 
lease, or  satisfaction,  to  defendant,  does  not 
present  a  Federal  question. 

Seaboard  Air  Line  R.  Co.  v.  Duvall,  225 
U.  S.  477-488,  56  L.  ed.  1171-1176,  32  Sup- 
Ct.  Rep.  790;  Waters-Pierce  Oil  Co.  ▼. 
Texas,  212  U.  S.  86,  53  L.  ed.  417,  29  Sup. 
Ct.  Rep.  220;  Chesapeake  &  O.  R.  Co.  v. 
McDonald,  214  U.  S  191,  53  L.  ed.  963,  29 
Sup.  Ct.  Rep.  546;  F.  G.  Oxley  Stave  Co. 
V.  Butler  County,  166  U.  S.  648,  41  L.  ed. 
1149,  17  Sup.  Ct.  Rep.  709. 

The  release  was  void  as  between  the' par- 
ties to  it,  and,  consequently,  it  could  not 
operate  as  a  valid  release  to  defendant. 

McMullen  v.  Hoffman,  174  U.  S.  654,  43  L. 
ed.  1123,  19  Sup.  Ct.  Rep.  839;  6  R.  C.  L.  § 
215,  p.  819. 

Mr.  Justice  Hughes  delivered  the  opin- 
ion of  the  court: 

Joseph  M.  Wagner  brought  this  action 
in  the  superior  court  of  Cook  county, 
Illinois,  against  the  Chicago  &.  Alton  Rail- 
road Company  to  recover  damages  tor  in- 
juries alleged  to  have  been  sustained 
through  its  negligence.  At  the  time  of  the 
accident,  he  was  employed  by  the  Chicago, 
Burlington,  &  Quincy  Railroad  Company  as 
a  conductor  in  charge  of  a  switching  crew, 
and  was  engaged  in  moving  cars  over  a 
track  of  the  Chicago  &  Alton  Railroad  Com- 
pany in  Chicago, — ^the  track  being  used  by 
the  Burlingtcm  company  under  an  arrange- 
ment with  the  Alton  company.  He  was  in- 
jured by  striking  a  semaphore  post  which, 
as  he  alleged,  was  in  dangerous  proximity 
to  the  track.  The  Burlington  company  was 
not  a  party  to  the  suit.  In  defense,  tho 
Alton  company  proved  that  Wagner  was  a 
member  of  the  relief  department  of  the 
Burlington  company,  to  which  the  em- 
ployees of  that  company  made  monthly 
contributions,  and  that  in  his  agreement 
with  that  company  it  was  provided  that  his 
acceptance  "of  benefits  for  injury"  should 
operate  ''as  a  release  and  satisfaction 
of  all  claims  against  said  company  and 
all  other  companies  associated  there- 
with in  the  administration  of  their 
relief  departments,  for  damages  aris- 
ing from  or  growing  out  of  said  injury.** 
The  Alton  company  was  not  thus  associated 
with  the  Burlington  company,  and  the  re- 
lease by  its  terms  did  not  run  to  it.  But  it 
was  insisted  that  the  Burlington  company 
was  a  [455]  joint  tort  feasor  with  the  Al- 
ton company,  and  hence  that  release  to  the 
former  would  operate  to  discharge  the  latter. 
It  was  found  by  the  state  court  that  after 
the  injury  Wagner  had  accepted  from  the 
relief  fund  of  the  Burlington  company  the 
sum  of  $1,231  as  benefits,  and  that  there 

239  U.  S. 


Jllo. 


CHICAGO  &  A.  R.  CO.  v.  WAQN£R. 


46(M157 


hftd  been  paid  in  his  behalf  for  hospital 
bills,  etc.,  $1,349.59;  and  it  was  further 
found  that  the  contribution  of  the  Burling- 
ton company  did  not  exceed  15  per  cent  of 
this  amount,  or  $387.09.  In  rebuttal  (and 
over  the  defendant's  exception)  Wagner 
introduced  evidence  that  at  the  time  of  the 
accident  he  was  engaged  as  the  employee  of 
the  Burlington  company  in  interstate  com- 
merce, and  he  contended  that  the  agreement 
for  the  release  of  that  company  through  ac- 
ceptance of  benefits  from  the  relief  fund  wa^ 
invalid  under  §  5  of  the  employers'  liability 
set  (35  Stat,  at  L.  65,  chap.  149,  Com  p.  Stat. 
1913;  §  8661).  The  trial  court  refused  to 
Ifive  a  peremptory  instruction  in  favor  of 
the  Alton  company,  and  also  denied  a  re- 
quest to  instruct  the  jury,  in  substance, 
that  if  it  found  that  Wagner  had  accepted 
ptyment  from  the  Burlington  company  in 
tttisfaction  of  his  claim  against  that  com- 
pany arising  from  the  injury,  such  accept- 
ance would  be  a  bar  to  this  action  against 
the  Alton  company.  The  court  did  charge 
that  if  the  Alton  company  was  found  to  be 
guilty,  it  should  not  be  credited  with  any 
amn  which  the  Burlington  company  had 
paid.  To  these  rulings  the  Alton  Company 
excepted.  A  verdict  was  rendered  against 
it  for  $15,000,  and  judgment  was  entered 
accordingly.  The  appellate  court,  first  dis- 
trict, required  a  remittitur  of  $387.09,  the 
amount  found  to  have  been  contributed  by 
the  Burlington  company  to  the  benefits  re- 
eeived,  and  affirmed  the  judgment  for  the 
remainder.'  180  111.  App.  196.  And  the 
judgment  for  the  reduced  amount  was  af- 
firmed by  the  supreme  court  of  the  state. 
^  111.  245, 106  N.  £.  809,  Ann.  Cas.  1916A, 
778. 

The  jurisdiction  of  this  court  is  invoked 
upon  the  ground  that,  in  refusing  to  give 
effect  to  the  release,  the  state  court  mis- 
eonstrued  §  5  of  the  employers'  liability 
[456]  act.i  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Taylor,  210  U.  S.  281,  293,  52  L.  ed.  1061, 
1067,  28  Sup.  Ct.  Rep.  616,  21  Am.  Neg.  Rep. 
464;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Mc- 
Whirter,  229  U.  S.  265,  275,  57  L.  ed.  1179, 
1185,  33  Sup.  Ct.  Rep.  858. 

The  action  was  not  brpught  under  that 
act.  There  were  allegations  in  the  original 
declaration  to  the  efi'ect  that  Wagner,  at 
the  time  of  the  injury,  was  engaged  in 
interstate  commerce  as  an  employee  of  the 


Burlington  company,  but  it  seems  to  have 
been  agreed  upon  the  trial  that 'the  action 
was  not  governed  by  the  Federal  statute; 
and  this  indeed  was  manifest,  as  the  Bur- 
lington company  was  not  a  party  to  the 
action,  and  the  Alton  company  was  not  the 
plaintiff's  employer.  Robinson  v.  Baltimore 
4  O.  R.  Co.  237  U.  S.  84,  91,  59  L.  ed.  849, 
851,  35  Sup.  Ct.  Rep.  491,  8  N.  C.  C.  A.  1. 
It  was  tried  as  a  common -law  action  on 
the  case. 

It  was  also  undisputed  that  the  Alton 
company  was  not  a  party  to  the  contract  for 
release,  or  associated  in  the  Burlington's 
relief  department..  Section  5  of  the  Fed- 
eral act  has  plainly  no  application  to  re- 
leases given  to  those  who  are  not  employers 
(Robinson  v.  Baltimore  &  O.  R.  Co. 
supra),  and  wc  do  not  understand  that 
there  was  any  contention  or  ruling  to  the 
contrary  in  the  state  court.  The  Alton 
company  simply  claimed  the  benefit  of  the 
release  to  the  Burlington  company  upon  the 
ground  that  the  Burlington  company  was  a 
joint  tort  feasor.  But  the  rule  invoked, 
that  the  release  of  one  joint  tort  feasor  is  a 
release  of  all,  is  a  rule  of  the  common  law, 
— in  this  case,  of  the  [457]  common  law  of 
Illinois.  Chicago  v.  Babcock,  143  111.  358, 
366,  32  N.  £.  271.  That  is,  assuming  that 
the  Burlington  company  was  the  employer, 
and  that  the  contract  for  its  discharge  from 
liability  for  this  injury  through  the  ac- 
ceptance of  benefits  from  ita  relief  depart- 
ment was  invalid  under  §  5  of  the  employ- 
ers' liability  act,  the  question  whether  that 
release,  thus  invalid  as  against  the  Burling- 
ton company,  would  operate  to  discharge  the 
Alton  company  as  a  joint  tort  feasor  from 
its  common-law  liability,  was  not,  and  we 
do  not  find  that  it  was  held  to  be,  a  matter 
of  Federal  law.  The  supreme  court  of  the 
state  said  upon  this  point,  after  stating 
that  there  was  no  valid  release  to  the  plain- 
tiff's employer:  "If  it"  (the  release)  "was 
not  valid  so  far  as  the  Burlington  company 
was  concerned,  it  was  clearly  invalid  as  to 
the  plaintiff  in  error,  and  constituted  no 
defense  to  this  action."  This,  as  we  view 
it,  was  but  to  say  that  the  release  could 
not  aid  the  Alton  company  for  the  very 
plain  reason  that  the  alleged  joint  tort 
feasor  had  not  been  discharged.  The  state 
law  did  not  recognize  the  discharge  of  the 
defendant  by  virtue  of  a  release  of  a  joint 


^This  section  is  as  follows: 

"Sec.  6.  That  any  contract,  rule,  regula- 
tion, or  device  whatsoever,  the  purpose  or 
intent  of  which  shall  be  to  enable  any  com- 
iion  carrier  to  exempt  itself  from  any  lia- 
bility created  by  this  act,  shall  to  that  ex- 
tent be  void :  Provided,  That  in  any  action 
brought  against  any  such  common  carrier 
40  L.  ed. 


under  or  by  virtue  of  any  of  the  provisions 
of  this  act,  such  common  carrier  may  set  off 
therein  any  sum  it  has  contributed  or  paid 
to  any  insurance,  relief  benefit,  or  indemni- 
ty that  may  have  been  paid  to  the  injured 
employee  or  the  person  entitled  thereto  on 
account  of  the  injury  or  death  for  which 
said  action  was  brought." 


457-460 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oor.  TMaM, 


tort  feasor  which,  under  the  law  applicable 
thereto,  wai  found  to  be  without  validity. 

The  only  Federal  question  which  it  can 
be  said  was  decided  was  with  respect  to  the 
validity  of  the  release  as  between  Wa^er 
and  the  Burlington  company.  It  is  urged 
that  §  5  was  wholly  inapplicable  in  an 
action  brought  against  a  third  person  to 
enforce  a  liability  not  created  by  the  Fed- 
eral act.  The  argument  is,  in  substance, 
that  in  this  action  against  the  Alton  com- 
pany, inasmuch  as  it  is  not  brought  to  en- 
force the  liability  imposed  by  the  Federal 
statute,  §  5  cannot  be  considered  for  any 
purpose;  that  is,  that  under  §  5  the  release 
can  be  decmpd  to  be  invalid  only  so  far  as  it 
is  actually  used  to  protect  the  Burlington 
company  from  liability  in  a  suit  against  it 
under  the  act.  This  involves,  we  think,  a 
fundamental  misconception.  It  is,  of  course, 
impossible  to  determine  [458]  whether  a 
joint  tort  feasor  is  discharged  except  by 
asking  what  would  happen  if  he  were  sued. 
The  liability  created  by  the  act  arose  when 
the  injury  was  received,  and  it  is  clear  tliat 
if  it  was  received  while  Wagner  was  en- 
gaged in  interstate  commerce,  his  acceptance 
of  benefits  under  the  relief  contract  would 
not  bar  an  action  against  his  employer. 
Philadelphia,  B.  &  W.  R.  Co.  v.  Schubert, 
224  U.  S.  603,  613,  56  L.  ed.  Oil,  016,  32 
Sup.  Ct.  Rep.  580,  1  N.  C.  C.  A.  802. 
When,  therefore,  the  Alton  company  sought 
to  escape  from  liability,  otherwise  exist- 
ing under  the  state  law,  by  reason  of 
a  release  to  the  Burlington  company,  it  was 
entirely  competent  for  the  plaintiff  to 
show  the  nature  of  his  employment  and 
that  the  asserted  release  was  within  the 
Federal  statute,  and  could  not  operate 
as  a  discharge  of  the  Bui'lington  com- 
pany with  respect  to  the  injury  sus- 
tained. And  the  state  court  found  upon 
abundant  evidence  that  Wagner  was  en- 
gaged as  an  employee  of  that  company  in 
interstate  commerce  when  he  was  hurt. 

There  was  thus  no  misconstruction  of  the 
Federal  act  in  holding  that  the  contract 
between  Wagner  and  the  Burlington  com- 
pany, and  his  acceptance  of  benefits  there- 
under, did  not  release  the  latter  from  lia- 
bility for  the  injury,  and  that  under  §  5 
that  company,  assuming  it  to  be  a  joint 
tort  feasor,  would  merely  have  the  right  to 
set  off  any  sum  which  it  had  contributed  to 
the  benefits  received;  and  there  was  no  de- 
nial by  the  state  court  of  any  Federal  right 
in  declining  to  treat  the  relief  contract, 
and  the  acceptance  of  benefits,  as  a  dis- 
charge of  the  Alton  company. 

Judgment  affirmed. 

sss 


[459]  INTER-ISLAND  STEAM  NAVIGA- 
TION COMPANY,  Limited,  Plff  in  Err., 

▼. 
J.  J.  BYRNE  and  Daniel  Kaleikl. 

(See  S.  C.  Reporter's  ed.  450-463.) 

Execution   —   exemptions   ^   seamen** 
wages. 

Ihe  exemption  of  seamen's  wages 
from  attachment,  given  by  the  act  of  June 
7,  1872  (17  SUt.  at  L.  2&Z,  chap.  3^, 
Comp.  Stat.  1013,  §  8287),  §  61,  re-enacted 
as  U.  S.  Rev.  Stat.  §  4536,  Comp.  Sut. 
1013,  §  8325,  was  repealed  as  to  seamen  en- 
gaged in  the  coastwise  trade  by  the  pro- 
visions of  the  act  of  June  0,  1874  (18  Stat, 
at  L.  64,  chap.  260,  Comp.  Stat.  1013,  § 
8201),  that  none  of  the  provisions  of  the 
earlier  act  "shall  apply  to  sail  or  steam 
vessels  engaged  in  the  coastwise  trade." 
[For  other  cusea,  see  Execution,  II.  a,  in  Di- 
gest Sup.  Ct.  1008.J 

[No.  288.] 

Submitted  November  20,  1015.    Decided  De- 
cember 20,  1015. 

IN  ERROR  to  the  Supreme  Court  of  the 
Territory  of  Hawaii  to  review  a  judg- 
ment  which    affirmed   a   judgment    of   the 
District   Court    of    Honolulu    in    favor    of 
plaintiff  in  a  garnishment  suit.     Affirmed. 
See  same  case  below,  22  Haw.  160. 
The  facts  are  stated  in  the  opinion. 

Mr.  Charles  R.  Hemenway  submitted 
the  cause  for  plaintiff  in  error.  '  Mr.  S.  W. 
Sutton  was  on  the  brief. 

Messrs.  Frank  E.  Thompson  and  John 
W.  Cathcart  submitted  the  cause  for  de- 
fendants in  error. 

Mr.  Justice  McReynolds  delivered  the 
opinion  of  the  court: 

Defendant  in  error  Byrne  brought  suit 
against  Kaleiki  in  the  district  court  of  Hon- 
olulu and  served  the  navigation  company 
with  a  garnishee  summons  in  accordanoe 
with  the  local  statute.  Answering,  the  com- 
pany set  up  that  Raleiki  was  hired  direct- 
ly by  it  (not  through  a  shipping  commis- 
sioner) as  a  mate  on  the  "Claudine,"  ply- 
ing only  in  the  interisland  coast  trade,  and 
asked  a  discharge  because  of  the  exemption 
from  attachment  of  seamen's  wages  by  S 
4536,  Revised  Statutes  of  the  United  States 
(Comp.  Stat.  1013,  §  8326).  The  trial 
court  held  that  subsequent  legislation  ex- 
cluded seamen  engaged  in  such  coastwise  i 
[460]  trade  from  the  exemption,  and  ren-  " 
dered  judgment  against  both  Kaleiki  and    J 

Note. — As.  to  exemption  of  seamen's  wages  ^ 
from  attachment — see  note  to  Tod  y.  Ken-  -^ 
tucky  Union  R.  Co.  18  IJEtJL  SIO. 

9St  V. 


1915. 


JNTERISIAND  STEAM  NAV.  CO.  v.  BTRNE. 


460-462 


the  company.  This  action  waa  aflSnned  by 
the  lapreme  court  of  the  territory  of  Hawaii 
(22  Haw.  160),  and  the  cause  is  here  upon 
writ  of  error. 

By  a  comprehensive  act  containing  sixty- 
eight  sections,  approved  Jime  1,  1872,  and 
entitled,  "An  Act  to  Authorize  the  Ap- 
pointment of  Shipping  Commissioners  by  the 
Several  Circuit  Courts  of  the  United  States, 
to  Superintend  the  Shipping  and  Discharge 
of  Seamen  Engaged  in -Merchant  Ships  Be- 
longing to  the  United  States,  and  for  the 
Further  Protection  of  Seamen/'  chap.  322, 
17  Stat,  at  L.  262,  Comp.  Stat.  1913,  § 
8287.  Congress  prescribed  regulations  con- 
cerning the  employment,  wages,  treatment, 
and  protection  of  seamen.  Section  61  reads 
aa  follows:  "That  no  wages  due  or  accru- 
ing to  any  seaman  or  apprentice  shall  be 
■ubject  to  attachment  or  arrestment  from 
any  court;  and  every  payment  of  wages 
to  a  seaman  or  apprentice  shall  be  valid  in 
law,  notwithstanding  any  previous  sale  or 
assignment  of  such  wages,  or  of  any  attach- 
ment, encumbrance,  or  arrestment  thereon; 
and  no  assignment  or  sale  of  such  wages, 
or  of  salvage  made  prior  to  the  accruing 
thereof,  shall  bind  the  party  making  the 
same,  except  such  advanced  securities  as 
are  provided  for  iii  this  act."  Without 
material  modification  in  language,  this  be- 
came §  4536  of  the  Revised  Statutes  ( Comp. 
Stat  1913,  §  8325),  enacted  into  law  June 
22,  1874,  with  the  following  limitation — 
S  5601  Comp.  Stat.  1913,  §  10,598): 
"The  enactment  of  the  said  revision  is 
not  to  affect  or  repeal  any  act  of  Con- 
gress passed  since  the  1st  day  of  De- 
cember one  thousand  eight  hundred  and 
seventy-three,  and  all  acts  passed  since  that 
date  are  to  have  full  effect  as  if  passed  aft- 
er the  enactment  of  this  revision,  and  so 
far  as  such  facts  vary  from,  or  conflict  with 
any  provision  contained  in  said  revision, 
they  are  to  have  effect  as  subsequent  stat- 
utes, and  as  repefiling  any  portion  of  the 
revision  inconsistent  therewith." 

The  act  of  June  9,  1874,  chap.  260,  18 
Stat  at  L.  64,  Comp.  Stat  1913,  §  8291,  "in 
reference  to  the  operations  of  the  shipping 
oommissioners'  act,  approved  [461]  June 
■eventh,  eighteen  hundred  and  seventy-two," 
provided:  "That  none  -of  the  provisions 
of  an  act  entitled  'An  Act  to  Authorize  the 
Appointment  of  Shipping  Commissioners 
by  the  Several  Circuit  Courts  of  the  United 
States  to  Superintend  th6  Shipping  and  Dis- 
charge of  Seamen  Engaged  in  Merchant 
Ships  Belonging  to  the  United  States,  and 
for  the  Further  Protection  of  Seamen'  shall 
apply  to  sail  or  steam  vessels  engaged  in  the 
cosstwise  trade,  except  the  coastwise  trade 
between  the  Atlantic  and  Pacific  coasts, 
or  in  the  lake-going  trade  touching  at  for- 
€0  Ii.  ed. 


eign  ports  or  otherwise,  or  in  the  trade  be- 
tween the  United  States  and  the  British 
North  American  possessions,  or  in  any  case 
where  the  seamen  are  by  custom  or  agree- 
ment entitled  to  participate  in  the  profits 
or  result  of  a  cruise,  or  voyage." 

The  understanding  of  Congress  concern- 
ing the  effect  of  the  repealing  act  of  1874 
is  indicated  by  subsequent  legislation  re- 
ferred to  below. 

Section  2  of  an  act  approved  June  19, 
1886,  chap.  421,  24  Stat  at  L.  79,  Comp. 
Stat.  1913,  §  8138,  specified  that  "shipping 
commissioners  may  ship  and  discharge 
crews  for  any  vessel  engaged  in  the  coast- 
wise trade  ...  at  the  request  of  the 
master  or  owner  of  such  vessel,"  etc. 

"An  Act  to  Amend  the  Laws  Belative  to 
Shipping  Commissioners,"  approved  August 
19, 1890,  chap.  801,  26  Stat  at  L.  320,  Comp. 
Stat  1913,  §  8293,  declared  that  when  a 
crew  is  shipped  by  a  shipping  commissioner 
for  any  American  vessel  in  the  coastwise 
trade,  as  authorized  by  §  2,  act  of  1886 
above,  an  agreement  shall  be  made  with 
each  seaman  in  the  same  manner  as  pro- 
vided by  §§  4511  and  4512,  Rev.  Stat  Comp. 
Stat.  1913,  §§  8300  and  8302  (both  from  the 
act  of  1872) ;  and  it  further  provided  that 
other  sections  of  the  Revised  Statutes  (not 
including  §  4536),  also  originally  in  the  act 
of  1872,  shall  extend  to  and  embrace  such 
vessel  to  the  same  extent  as  if  mentioned 
therein. 

By  an  act  approved  February  18,  1895, 
chap.  97,  28  Stat,  at  L.  667,  Comp.  Stat. 
1913,  §  8293,  [462]  the  act  of  1890,  supra, 
was  so  amended  as  to  render  applicable  to 
seamen  in  the  coastwise  trade  when  shipped 
by  a  shipping  commissioner  certain  other 
sections  of  the  Revised  Statutes,  including 
§  4536,  from  the  act  of  1872;  and  it  fur- 
ther provided,  "but  in  all  other  respects 
such  shipment  of  seamen  and  such  ship- 
ping agreement  shall  be  regarded  as  if  both 
shipment  and  agreement  had  been  entered 
into  between  the  master  of  a  vessel  and  a 
seaman  without  going  before  a  shipping 
commissioner:  Provided,  That  the  cloth- 
ing of  any  seaman  shall  be  exempt  from 
attachment" 

Tlie  act  of  March  8,  1897,  chap.  389,  29 
Stat,  at  L.  687,  689,  Comp.  Stat  1913, 
S^§  8293,  8296,  amends  the  foregoing  act 
of  1895  by  adding  another  section  of  the 
Revised  Statutes  to  those  therein  enumer- 
ated. 

Plaintiff  in  error  maintains :  "The  words 
in  the  act  of  1874  'none  of  the  provisions 
.  .  .  shall  apply  to  said  or  steam  vessels 
engaged  in  the  coastwise  trade'  are  apt  in 
their  application  to  many  of  the  sections 
in  the  act  of  1872,  as,  for  example,  §§  4511 
to  4519,  inclusive    (Comp.  Stat   1913, 

t9 


462,  463 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oot.  TtMM, 


8300-8310).  These  words  are  not  such  as 
would  be  expected  it  §  4536  (Comp.  Stat. 
1913,  §  8325)  was  intended  to  be  referred 
to,  for  there  is  nothing  in  that  section  which 
applies  to  vessels  or  the  duties  of  masters 
and  owners  under  the  shipping  commission- 
ers' act.  As  we  view  it,  §  4536  remained 
unaffected  by  the  act  of  1874,  neither  spe- 
cifically nor  by  reasonable  implication  re> 
pealed  as  to  seamen  in  the  coastwise  trade." 

The  fundamental  purpose  of  the  act  of 
1872  was  to  afford  protection  to  seamen  in 
respect  to  their  treatment  and  wages.  The 
act  of  1874  by  its  express  terms  rendered 
the  provisions  of  the  earlier  act  inapplica- 
ble to  vessels  in  the  ordinary  coastwise 
trade  (United  States  v.  The  Grace  Lothrop, 
05  U.  S.  527,  632,  24  L.  ed.  514,  515),  and 
the  suggested  narrow  construction  would 
tend  to  defeat  the  particular  end  in  view, — 
the  relief  of  vessels  making  relatively  short 
[463]  voyages,  with  frequent  opportunities 
for  reaching  ports,  from  burdensome  require- 
ments not  then  deemed  essential  to  the  wel- 
fare of  seamen  employed  thereon.  Certain- 
ly, we  think,  the  provisions  in  the  act  of 
1872  having  direct  reference  to  wages  (in- 
cluding those  in  §  4536,  Rev.  Stat.  Comp. 
Stat.  1913,  §  8325),  because  of  their  inti- 
mate connection  with  the  navigation  of 
vessels,  must  be  considered  as  applicable 
thereto  and  therefore  included  within  the 
scope  of  the  amendment  of  1874.  Subse- 
quent legislation  clearly  indicates  that  Con- 
gress entertained  this  view.  It  would  be 
difficult  to  account  for  the  acts  of  1886, 
1890,  1895,  and  1897,  supra,  upon  any  other 
tlieory. 

The  particular  point  now  presented  was 
reserved  in  Wilder  v.  Inter-Island  Steam 
Nav.  Co.  211  U.  S.  239,  245,  53  L.  ed.  164, 
20  Sup.  Ct.  Rep.  58,  15  Ann.  Cas.  127.  It 
has  become  of  less  importance  since  the  act 
of  March  4,  1915,  chap.  153,  38  Stat,  at  L. 
1164,  1169,  wherein  the  provisions  of  §  61 
of  the  act  of  1872  were  re-enacted. 

The  judgment  of  the  court  below  is  af- 
firmed. 


CATHERINE  C.  REESE,  Administratrix 
of  the  Estate  of  Garrett  Tracy  Reese, 
Deceased,  Plff.  in  Err., 

V. 

PHILADELPHIA  ft  READING  RAILWAY 

COMPANY. 

(See  S.  C.  Reporter's  ed.  463-466.) 

Appeal  —  withdrawing  case  from  jury 
—  when  not  error. 

The    conclusions    of    the   two    lower 

courts  that  the  evidence  was  insufficient  to 

<*arry  to  the  jury  the  question  of  negligence 

in  an  action  for  death  brought  under  the 

SS4 


Federal  employers'  liability  act  of  April 
22,  1908  (35  Stat,  at  L.  65,  chap.  149, 
Comp.  Stat.  1913,  §  8657),  will  not  be  dia- 
turbed  by  the  Federal  Supreme  Court  where 
the  evidence  shows  that  the  deceased,  a  ea* 
pable,  experienced  fireman  in  a  night  switch- 
ing crew  operating  in  a  properly  lighted 
yard,  who  was  acquainted  with  the  condi- 
tions, was  icilled  by  coming  in  contact  with 
a  freight  car  standing  on  a  parallel  track 
while,  with  his  engine  in  motion,  he  was  at- 
tempting, about  midnight,  to  procure  drink- 
ing water  at  a  tap  on  the  side  of  the  tender 
at  a  point  in  the  vard  where  both  tracks 
were  occupying  a  highway,  and  were  closer 
together  than  the  standard  distance. 
[For  other  cases,  see  Appeal  and  Brror,  Yin. 
m,  6;  TrUl,  VI.  b,  In  Digest  Sup.  Ct.  1908.] 

[No.  608.] 

Argued  December  1,  1915.    Decided  Decem- 
ber 20,  1915. 

IN  ERROR  to  the  United  States  Circuit 
Court  of  Appeals  for  the  Third  Circuit 
to  review  a  judgment  which  affirmed  a  judg- 
ment of  the  District  Court  for  the  Eastern 
District  of  Pennsylvania,  granting  a  non- 
suit in  an  action  brought  under  the  Fed- 
eral employers'  liability  act.    Affirmed. 

See  same  case  below,  140  C.  C.  A.  060, 
225  Fed.  518. 

The  facts  are  stated  in  the  opinion. 

Mr.  George  Denuning  argued  the  canae 
and  filed  a  brief  for  plaintiff  in  error: 

Inasmuch  as  the  next  duty  to  be  per- 
formed by  the  engine  was  to  pull  a  train  of 
loaded  cars  from  the  Noble  street  yard  to 
Berks  street,  which  hauling  was  part  of 
the  journey  or  trip  of  this  train  of  can, 
and  of  which  train  of  cars  two  cars'  were 
destined  to  points  outside  the  state,  and 
the  engine  was  actually  on  itb  road  to  per- 
form this  duty,  the  engine  and  its  crew, 
including  the  dead  fireman,  were  engaged  in 
interstate  commerce. 

Pedersen  v.  Delaware,  L.  ft  W.  R.  Co. 
229  U.  S.  146,  57  L.  ed.  1125,  33  Sup. 
Ct.  Rep.  648,  3  N.  C.  C.  A.  779,  Ann.  Gas. 
1914C,  153;  St.  Louis,  S.  F.  ft  T.  R.  Co. 
V.  Scale,  229  U.  S.  156,  57  L.  ed.  1129, 
33  Sup.  Ct.  Rep.  651,  Ann.  Cas.  1914C,  156; 
Norfolk  ft  W.  R.  Co.  v.  Earnest,  229  U.  8. 
114,  57  L.  ed.  1096,  33  Sup.  Ct.  Rep.  654, 
Ann.  Cas.  1914C,  172;  North  Carolina  R. 
Co.  V.  Zachary,  232  U.  S.  248,  58  L.  ed. 
591,  34  Sup.  Ct.  Rep.  305,  9  N.  C.  C.  A. 
109,  Ann.  Cas.  1914C,  159;  New  York  C. 
ft  H.  R.  R.  Co.  V.  Carr,  238  U.  S.  260,  60 

Note. — On  the  constitutionality,  appliea- 
tion,  and  effect  of  the  Federal  employers' 
liability  act — see  notes  to  Lamphere  v.  Ore- 
gon R.  ft  Nav.  Co.  47  L.R.A.(N.S.)  38;  and 
Seaboard  Air  Line  R.  Co.  v.  Horton,  L.RJL 
1915C,  47. 

aS9  V.  8. 


1915. 


BEE8B  V.  PHILADELPHIA  4  K.  B.  GO. 


li.  ed.  1298,  35  Sup.  Ct.  Rep.  780,  0  N.  C. 
C.  A.  1. 

Although  A  munidpality,  under  excep- 
tional circumstances,  can  require  a  railroad 
to  replace  its  two  tracks  in  a  crowded  street 
with  one  track  (Baltimore  v.  Baltimore 
Trust  &  G.  Co.  166  U.  S.  673,  41  L.  ed. 
1160,  17  Sup.  Ct.  Rep.  696),  yet  it  would 
iiecm  to  be  clearly  beyond  its  police  power 
to  attempt  to  regulate  railroad  tracks  on 
a  public  street  in  such  a  way  as  to  en- 
danger the  life  and  limb  of  railroad  em- 
ployees. Ihis  would  be  injustice  and  op- 
pression, and  tiierefore  unlawful. 

New  York  &  N.  E.  R.  Co.  v.  Bristol,  151 
U.  S.  556,  38  L.  ed.  269,  14  Sup.  Ct.  Rep. 
437. 

If  a  local  or  municipal  regulation,  ordi- 
nance, direction,  or  supervision  did  require 
the  placing  of  tracks  so  close  together  as 
to  violate  the  standard  of  safety,  such  local 
or  municipal  regulation,  ordinance,  direc- 
tion, or  supervision  would  be  improper,  un- 
lawful, and  unenforceable,  because  it  would 
be  imposing  an  arbitrary  and  imreasonable 
requirement  upon  interstate  commerce. 

Chicago,  B.  ft  Q.  R.  Co.  ▼.  Railroad  Com- 
mission, 237  U.  S.  229,  59  L.  ed.  931,  P.U.R. 
1915C,  309,  35  Sup.  Ct.  Rep.  560. 

Such  a  regulation,  if  it  did  exist,  would 
be  an  unfair  one,  and  an  imreasonable  exer- 
cise of  the  police  power,  in  that  it  would 
deny  the  railroad  employees  the  equal  pro- 
tection of  the  law  guaranteed  by  the  14th 
Amendment  of  the  Federal  Constitution, 
and  therefore  could  not  be  sustained  and 
should  not  be  obeyed. 

Atchison,  T.  ft  S.  P.  R.  Co.  ▼.  Vosburg, 
238  U.  S.  56,  59  L.  ed.  1199,  L.R.A.1915E, 
953,  35  Sup.  Ct.  Rep.  675;  Great  Northern 
R.  Co.  V.  Minnesota,  238  U.  S.  340,  59  L. 
ed.  1337,  P.U.R.1915D,  701,  35  Sup.  Ct. 
Rep.  753;  Southwestern  Teleg.  ft  Teleph. 
Co.  V.  Danaher,  238  U.  S.  482,  59  L.  ed. 
1419,  L.R.A.1916A,  1208,  P.U.R.1915D,  571, 
35  Sup.  Ct.  Rep.  886;  Chicago,  M.  ft  St.  P. 
R.  Co.  V.  Wisconsin,  238  U.  S.  491,  59  L. 
ed.  1423,  L.R.A.1916A,  1133,  P.U.R.1915D, 
706,  35  Sup.  Ct.  Rep.  869. 

It  might  be  pleaded  that  to  properly  con- 
struct and  maintain  the  tracks  on  this 
street  and  thereby  safeguard  the  lives  and 
limbs  of  employees  would  involve  great  ex- 
pense. But  it  has  been  held  that  a  railroad 
cannot  escape  a  duty  by  pleading  the  ex- 
pense of  its  performance. 

Chicago,  B.  ft  Q.  R.  Co.  v.  Railroad  Com- 
mission, supra. 

A  railroad  company  is  bound  to  anticipate 
and  to  provide  against  that  which  is  a 
regular  custom  or  habit  of  its  employees  in 
the  line  of  their  duties.    A  normal  response 


with  that  duty,  so  far  as  responsibility  of 
the  employer  is  concerned. 

26  C^c.  1250;  Taylor,  B.  ft  H.  R.  Co. 
V.  Taylor,  79  Tex.  104,  23  Am.  St.  Rep. 
316,  14  S.  W.  918;  Keenan  v.  Flemington 
Coal  Co.  40  Scot  L.  R.  144,  5  Sc.  Sess.  Cas. 
5th  Series,  164,  10  Scot.  L.  T.  409 ;  Blovelt 
V.  Sawyer  [1904]  1  K,  B.  271,  73  L.  J. 
K.  B.  N.  S.  155,  68  J.  P.  110,  52  Week.  Rep. 
503,  89  L.  T.  N.  S.  658,  20  Times  U  R.  105, 
6  W.  C.  C.  16;  Elliott  v.  Rex,  6  W.  C.  C. 
27;  Jarvis  v.  Hitch,  —  Ind.  App.  — ,  65 
N.  E.  608;  Birmingham  Rolling  Mill  Co.  v. 
Rockhold,  143  Ala.  115,  42  So.  96;  Neice 
V.  Farmers'  Co-Op.  Creamery  ft  Supply  Co. 
90  Neb.  470,  133  N.  W.  878;  Houston  ft  T. 
C.  R.  Co.  V.  Turner,  99  Tex.  547,  91  S.  W. 
562;  1  Bradbury,  Workmen's  Compensation 
Cases,  pp.  419-452  inclusive;  also  footnotes 
to  Milwaukee  v.  Althoff,  4  N.  C.  C.  A.  122 ; 
Heldmaier  v.  Cobbs,  96  111.  App.  315,  105 
111.  172,  62  N.  E.  853 ;  Thomas  v.  Wisconsin 
C.  R.  Co.  108  Minn.  485,  23  LJC.A.(N.S.) 
954,  122  N.  W.  456;  Carnegie  Steel  Co.  v. 
Rowan,  30  Ohio  C.  C.  202;  Adams  v.  South- 
ern R.  Co.  166  Ala.  449,  51  So.  987. 

Where  a  railroad  company  for  nine  years 
without  objection  permitted  its  employees 
to  ride  on  its  engines  and  the  steps  there- 
of in  the  discharge  of  their  duties,  it  was 
held  to  be  charged  with  knowledge  of  their 
custom  in  doing  so,  and  negligent  in  per- 
mitting obstructions  so  close  to  the  track 
as  to  strike  such  employees. 

Heilig  V.  Southern  R.  Co.  152  N.  C. 
469,  67  S.  E.  1009. 

It  is  thoroughly  competent  and  proper  to 
prove  the  custom,  usage,  and  continuous 
practice  of  employees,  and  both  the  master 
and  servant  are  bound  thereby. 

Prescott  V.  Ball  Engine  Co.  176  Pa.  459, 
53  Am.  St.  Rep.  683,  35  Ati.  224. 

Where  it  is  customary  for  the  brakemen 
to  ascend  to  and  descend  from  the  tops  of 
the  cars  by  the  side  ladders  instead  of  the 
end  ladders,  a  railroad  company  is  negligent 
if  it  permits  obstructions  so  close  to  the 
tracks  as  to  strike  them  In  so  doing. 

Georgia  P.  R.  Co.  v.  Davis,  92  Ala.  300, 
25  Am.  St.  Rep.  47,  9  So.  252;  Chicago 
ft  I.  R.  Co.  V.  Russell,  91  111.  298,  33  Am. 
Rep.  54;  Allen  v.  Burlington,  C.  R.  ft  N. 
R.  Co.  57  Iowa,  623,  11  N.  W.  614;  Sisco 
V.  Lehi^  ft  H.  R.  R.  Co.  76  Hun,  582,  27 
N.  Y.  Supp.  671;  Texas  ft  P.  R.  Co.  v.  Hohn, 
1  Tex.  Civ.  App.  36,  21  S.  W.  942 ;  Riley  v. 
West  Virginia  C.  ft  P.  R.  Co.  27  W.  Va. 
145;  Central  Trust  Co.  v.  East  Tennessee, 
V.  ft  G.  R.  Co.  73  Fed.  661. 

The  nonsuit  altered  by  the  lower  court 
cannot  be  sustained  upon  the  ground  of  the 
assumption  of  risk  on  the  part  of  the  de- 


to  a  call  of  nature,  while  on  duty,  is  en-  j  ceased  fireman. 

tirely   proper,    and    inseparably   connected        Stewart  v.  Central  R.  Co.  235  Pa.  811,  84 

60  L.  ed.  25  S9^ 


464,  466 


SUPKEME  COURT  OF  THE  UNITED  STATES. 


Oct.  TtMM, 


AtL  38;  Dwyer  v.  St.  Louia  &  S.  F.  R.  Co. 
62  Fed.  87 ;  West  v.  Chicago,  B.  ft  Q.  R.  Co. 
103  C.   C.  A.  293,  170   Fed.  801;    Chesa- 
peake &  0.  R.  Co  ▼.  Cowley,  02  C.  C.  A. 
201,  166  Fed.  283;   Chicago,  M.  ft  St.  P. 
R.  Co.  v.  Donovan,  87  C.  C.  A.  600,  160 
Fed.  826;    San  Francisco  ft  P.  S.  S.   Co. 
V.  Carlson,  89  C.  C.  A.  45,  161  Fed.  861 
(low  appliance) ;    Pennsylvania  R.  Co.  v. 
Jones,  60  C.  C.  A.  87,  123  Fed.  753   (ab- 
sence of  bumper) ;  Pittsburgh,  S.  ft  N.  R. 
Co.  V.  Lamphere,  69  C.  C.  A.  542,  137  Fed. 
20  (low  trestle) ;  Gila  Valley,  G.  ft  N.  R 
Co.  V.  Lyon,  203  U.  S.  465,  51  L.  ed.  276, 
27  Sup.  Ct.  Rep.  146  (defective  buffer) ;  26 
Cyc.  1240,  1250;   Norfolk  ft  W.  R.  Co.  ▼. 
Beckett,  90  C.  C.  A.  25, 163  Fed.  479;  Choc- 
taw, O.  ft  G.  R.  Co.  V.  McDade,  191  U.  8. 
64,  48  L.  ed.  96,  24  Sup.  Ct.  Rep.  24,  15  Am. 
Neg.  Rep.  230;  Seaboard  Air  Line  R.  Ck).  v. 
Horton,  233  U.  S.  492,  68  L.  ed.  1062,  LJt.A. 
1915C,  1,  34  Sup.  Ct.  Rep.  635,  8  N.  C.  C. 
A.  834,  Ann.  Cas.  1915B,  475;   Harvey  v. 
Texas  ft  P.  R.  Co.  92  C.  C.  A.  237,  166  Fed. 
385,  affirmed  in  228  U.  S.  310,  5J  L.  ed.  862, 
33  Sup.  Ct.  Rep.  518;   Texas  ft  P.  R.  Co. 
V.   Swearingen,    196   U.   S.   61,   49   L.    ed. 
382,  25   Sup.   Ct.   Rep.   164,   17   Am.   Neg. 
Rep.  422;  Louisville  ft  N.  R.  Co.  v.  Lank- 
ford,  126  C.  C.  A.  247,  200  Fed.  321. 

With  all  the  inferences  which  might  be 
deduced  from  the  testimony,  there  are  sev- 
eral views,  at  least,  which  can  be  properly 
taken  of  the  facts  in  the  case,  which  would 
completely  exonerate  the  dead  fireman  of 
all  blame  from  negligence,  as  well  as  as- 
sumption of  risk. 

Kreigh  v.  Westinghouse,  C.  K.  ft  Co.  214 
U.  S.  249,  53  L.  ed.  984,  29  Sup.  Ct.  Rep. 
619;  Choctaw,  O.  ft  G.  R.  Co.  v.  McDade, 
191  U.  S.  64,  48  L.  ed.  96,  24  Sup.  Ct.  Rep. 
24,,  15  Am.  Neg.  Rep.  230;  Gardner  v. 
Michigan  C.  R.  Co.  150  U.  S.  349,  37  L. 
ed.  1107,  14  Sup.  Ct.  Rep.  140;  Deserant  v. 
Cerillos  Coal  R.  Co.  178  U.  S.  409,  44  L. 
ed.  1127,  20  Sup,  CJt.  Rep.  067,  20  Mor.  Min. 
Rep.  673;  Norfolk  ft  W.  R.  Co.  v.  Earnest, 
229  U.  S.  114,  57  L.  ed.  1090,  33  Sup. 
Ct.  Rep.  654,  Ann.  Cas.  1914C,  172;  Chi- 
cago  R.  I.  ft  P.  R.  CJo.  V.  Brown,  229  U. 
S.  317,  319,  321,  57  L.  ed.  1204-1206,  33 
Sup.  Ct.  Rep.  840,  3  N.  C.  C.  A.  826 ;  Sea- 
board Air  Line  R.  Co.  v.  Tilghman,  237 
U.  S.  499,  59  L.  ed.  1069,  35  Sup.  Ct  Rep. 
653;  Central  Vermont  R.  Co.  v.  White,  238 
U.  S.  507,  60  L.  ed.  1433,  35  Sup.  Ct.  Rep. 
865,  0  N.  C.  C.  A.  265;  Richmond  ft  D.  R. 
Co.  V.  Powers,  140  U.  S.  43,  45,  37  L.  ed. 
042,  043,  13  Sup.  Ct.  Rep.  748,  7  Am.  Neg. 
Cas.  369;  Texas  ft  P.  R.  Co.  v.  Harvey,  228 
U.  S.  319,  57  L.  ed.  852,  33  Sup.  Ct.  Rep. 
518. 
S8« 


Mr.  William  Clarke  Mason  argued  the 
cause,  and,  with  Mr.  Charles  Heebner,  filed 
a  brief  for  defendant  in  error: 

The  record  is  barren  of  sufficient  evidence 
.upon  which  to  sustain  a  verdict  based  upon 
negligence  on  the  part  of  the  railway  com- 
pany. 

Baltimore  ft  0.  R.  Co.  v.  Newell,  116  C. 
C.  A.  428,  196  Fed.  866. 

Mr.  Justice  McReynolds  delivered  the 
opinion  of  the  court: 

Relying  upon  the  Fctleral  employers'  lia^ 
bility  act,  plaintiff  in  error  brought  salt 
against  the  railway  company  in  the  district 
court  to  recover  damages  for  her  husband's 
death,  alleged  to  have  resulted  from  the 
negligent  and  improper  construction  and 
maintenance  of  its  tracks  in  too  close  prox- 
imity to  each  other. 

At  the  conclusion  of  plaintifTs  testimony,, 
the  trial  court,  finding  '*no  evidence  of 
negligence  or  neglect  to  provide  him  [the 
employee]  with  a  safe  place  to  work  as  to 
the  act  he  was  performing  at  that  time,'' 
entered  a  nonsuit  and  afterwards  refused  to 
take  it  off.  This  was  aflirmcd  by  the  circuit 
court  of  appeals  (140  C.  C.  A.  G60,  22i> 
Fed.  518)  upon  the  ground  tliat  the  rail- 
road ''did  not  fail  in  its  duty  to  provide 
the  deceased  with  a  reasonably  safe  place 
to  work;"  and  the  sole  question  for  our 
consideration  is  whether  any  other  con- 
clusion could  be  legitimately  drawn  front 
the  facts  disclosed. 

[465]  For  use  in  shifting  freight  cars 
and  making  up  trains,  the  defendant  main- 
tains as  a  part  of  its  Xoble  street  yard,  two 
parallel  tracks  running  north  and  south 
along  Front  street,  Philadelphia,  from  which 
other  tracks,  curves,  and  turnouts  lead  into 
different  freight  sheds,  warehouses,  etc. 
These  were  located  and  are  maintained 
under  an  ordinance  of  the  city  accord in<^  to 
plans  duly  approved  by  its  officials.  At  and 
near  the  place  of  the  accident  the  street  ia 
almost  entirely  occupied  by  tliero.  Tlic 
distance  between  such  north  and  south 
tracks  is  much  less  than  the  general  stand- 
ard adopted  by  the  company,  and  box  cara 
moving  thereon  have  barely  enough  roon> 
to  pass.  These  conditions  are  obvious  and 
have  existed  for  fifteen  years  or  more. 

Deceased  was  a  capable,  experienced  fire- 
man in  a  night  switching  crew  operating  in- 
the  yard,  whicli  was  properly  lighted,  and 
acquainted  with  the  general  conditions  de- 
scribed. The  cause  was  tried  upon  the^ 
theory  that  about  midnight,  November  18, 
1912,  while  his  engine  was  moving  5  milea 
per  hour  along  one  of  the  parallel  tracks, 
he  attempted  to  procure  drinking  water  at 
a  tap  in  the  side,  near  the  bottom,  and  ^ 
feet  from  the  front  of  the  tender;  that  \rt 

as9  u.  s^ 


1913. 


UKITGD  STATES  v.  HAUBUBGAUERIKANISCHE  CO. 


doiDg  10  his  body  was  extended  ouUide  tbt 
line  of  both  tender  and  engine  and  crushed 
bj  conUct  with  K  freight  ear  itanding  on 
tlie  Other  parallel  track;  and  that  the  rail- 
way negligently  constructed  and  maintained 
these  tracks  too  near  each  other. 

The  rule  ia  welt  settled  that  a  railroad 
company  is  not  to  be  held  as  guarantying  or 
varranting  absolute  safety  to  its  employees 
under  all  circumatances,  but  la  bound  to 
e\cTci»e  the  care  which  the  exigency  reaaon- 
alily  demands  in  furnishing  proper  roadbed, 
traeka,  and  other  structorea.  A  failure  to 
ciereiso  such  care  constitutes  negligence. 
L'nioo  P.  B.  Co.  t.  O'Briea.  181  U. 
S.  1S1,  45T,  40  L,  ed.  766,  770,  16  Sup. 
Ct  Rep.  61B;  Choctaw,  0.  A  O.  R.  Co.  r. 
McDade,  101  U.  S.  64,  67,  4S  L.  ed.  96,  100, 
24  Sup.  Ct.  Rep.  24,  15  Am.  Neg.  Rep.  230; 
Myers  v.  Pittsburgh  Coal  Co.  S33  U.  S.  184, 
Ifil,  58  L.  ed.  S08,  010,  34  Sup.  Ct.  Rep.  650. 
A  railroad  yard  [466]  where  traina  arc  made 
up  neceaaarily  lias  a  great  number  of  tracks 
and  switcliea  close  to  one  another  (Randall 
».  Baltimore  4  O.  R.  Co.  100  U.  S.  478,  482, 
27  L.  cd.  1003,  1005,  3  Sup.  Ct.  Rep.  322)  ; 
and  certainly  the  mere  existence  of  such 
conditiona  is  not  enough  to  support  an  in- 
ference of  negligence  where,  as  here,  it  ia 
n<>cesaBry  to  utilize  a  public  street.  Both 
the  District  Court  and  the  Circuit  Court  of 
Appeals  felt  constrained  to  hold  the  eri- 
denee  insufTicicnt  to  carry  the  question  of 
negligence  to  the  jury,  and,  having  ex- 
amined the  record,  wfe  are  unable  to  say 
tlut  they  reached  a  wrong  result.  The 
judgment  is  alErmcd. 

Ifr.  Justice  Hnghca  and  Mr.  Juatice 
Pllmej  are  of  the  opinion  that  upon  the 
question  of  the  defendant's  negligence, — the 
only  question  upon  which  the  court  below 
ruled, — there  wss  sufficient  evidence  to  go 
to  the  jury,  and  therefore  dissent. 


pean  War  preventa  the  Federal  SuproM 
Court  from  deciding  on  the  nerita  an  ap- 
peal from  a  decree  presenting  the  question 
whether  the  provisions  of  the  an ti -trust  aet 
of  July  2,  1890  (26  Stat,  at  L.  200,  chap. 
647,  Comp.  But.  1013,  1  3B20),  ara  violated 
by  a  combination  of  steamship  companies  t» 
monopoliu  Trans- Atlantic  transportation.. 
(For  other  case*,  sea  Apiieil  and  Srror,  VII. 

1.  2.  In  Dlgeat  Sup.  C^  1908.] 
Evidence  ^  Judicial  notice  ^  eslstcnco 

of  w«r. 

2.  The  Federal  Supreme  Court  takes 
judicial  notice  of  the  existence  of  the  prea- 
ent  European  War. 

[For  otbcr  cases,  see  Evldeuce.  I.  d,  la  Digest 

Sap.  Ct.  1908.] 
Appeal  —  judcment  —  revcrslnc  wltli-. 

ODt  prejndltw. 

3.  The  Federal  Supreme  Court,  inatead 
of  dismissing  an  appeal  from  a  decree  of  a 
Federal  district  court  adverse  to  the  gov- 
ernment's contention  that  a  combination  of 
steamship  companies  to  monopolite  Trans- 
Atlantic  transportation  violates  the  anti^ 
truat  act  of  July  2,  1890  (20  SUt.  at  L. 
209,  chap.  047,  Comp.  Stat.  1013,  §  B820), 
because  the  controversy  has  become  a  moot 
one  in  view  of  the  Kuropean  War,  will  re- 
verse the  decree  and  remand  the  case  with 
directions  to  dismiss  the  bill  without  preju- 
dice to  the  right  of  the  government  in  the 
future  to  assail  any  actual  contract  or  com- 
bination deemed  to  oSend  againat  the  anti- 


USITED  STATES  OF  AMERICA,  Appt., 


HAMBURG- AM EHIKANISCHE  PACKET- 
FAHRT-ACTIEN  GESELI^CHAFT  et 
aL,  Appts., 


(See  8.  C.  Reporter'a  ed.  466-178.) 

Appeal  —  dismissal  ^  moot  cane. 

J.  The  moot  character  of  the  contra- 1 
versy  beeauac  of  the  existence  of  the  Euro-  ' 
to  L.  cd. 


'  [Nob.  288  and  332.] 

Argued  November  3  and  4,  1015.     Decided 
January  10,  1010. 

CROSS  APPEALS  from  the  District  Court 
of  the  United  States  for  the  Southern 
Diatrict  of  New  York  to  review  a  decree 
granting  a  portion  only  of  the  relief  sought 
by  the  United  States  ia  a  suit  under  the 
anti-trust  act  againat  Trans -Atlantic  steam- 
ship companies.  Reversed  and  remanded, 
wilJi  directions  to  diamisa  the  bill  without 
prejudice. 

See  same  case  below,  216  Fed.  071. 

The  facts  are  stated  in  the  opinion.  1 

Assistant   to   the   Attorney    General    G.    I 
Carroll  Todd  argued  the  cause,  and,  with    | 
Special  Assistant  to  the  Attorney  General 
Thurlow  M,   Gordon,   Bled  a  brief  for   tha 
United  SUtea: 

The  esse  has  not  become  moot  by  reason 
of  the  European  War. 

United  Statea  v.  Trans-Miasouri  Freight 
Asso.  166  U.  S.  290,  30S,  41  L.  ed.  1007, 
1016,  17  Sup.  Ct.  Bep.  840;  Southern  P. 
Terminal  Co.  v.  Interstate  Commerce  Com- 
mission, 219  U.  8,   408,  65  L.  ed.  310,  31 

Note. — As  to  judicial  notice — see  note  to 
live  v.  State,  4  L.R.A.  33. 


468,  469                   SUPREME  COURT  OF  THE  UNITED  STATES.              Oof.  TkBM, 

Sup.   Ct.    Rep.   279;    Boise   City   Irrig.   &  Mr.   Chief  Justice  While  deliyered  the 

Land  Co.  t.  Clark,  65  C.  C.  A.  309,  131  Fed.  opinion  of  the  court: 

415;  United  States  t.  Prince  Line,  220  Fed.  The  United  States,  on  January  4th,  1911, 

230.  commenced  this  suit  to  prevent  the  further 

ikf.    ^^.«><Ba                    —   jAv  execution  of  an  agreement  to    which    the 

Mr.    Charles   P.    Spooner   argued   the    ,  .     ,     ,  ^'      .  a  ^u:-.i.  'a 

J    — ai.u  -».€     *^_  ,      ^»a  defendants  were  parties  and  which  it  waa 

cause,  and,  with  Messrs.  John  C.  Spooner     ,         ,  ...   J^  .,  ^   . ,...  _     .  .^ 

JT          T    »•!.       iiij      X.  •  *  £     Av  charged  constituted  the  foundation  of  an 

aiid  James  L.  Bishop,  filed  a  brief  for  the  .^^^j    combination    in    violation   of   the 

Hamburg-American  Steamship  Company  et  ^„^tru8t  act  (26  SUt.  at   L.   209,   chap. 

*^  647,  Comp.  Stat  1913,  §  8820).    The  reUef 

Mr.  liuciua  H.  Beers  argued  the  cause,  asked,  moreover,  in  the  nature  of  things 

and,  with  Mr.  Allan  B.  A.  Bradley,  filed  a  embraced    certain    subsidiary    agreements 

brief  for  the  Cunard  Steamship  Company  made  during  the  course  of  the  execution  of 

et  aL  the  main  contract,  in  furtherance  of  its  al« 

Mr.  Charles  C.  Barllngham  argued  the  >««*«»    prohibited    result      The    prineipa} 

cause,  and.  with  Mr.  Roseoe  H.  Hnpper.  ^v*^*"  J^iofi    k  f         I       ^         > 

llled  a  brirf  for  the  Americw,  Line  et  al.:  f«''™'!7  ^'^^^]'  ""*  '*•  >«  «••""•«;  '" 

Among  the  parties  are  corporations  of  '"'«!  *''*7»""''  *'* VT*    ,  '"*k  "" 

i-i      i.  T>  -i.  '     f^               -D  y  '\^       J  T>..  not  later  than  December  Ist  of  each  year  a 

Great  Britain,  Germany,  Belgium,  and  Rus-  ..       m  j.x.    -  *.    *,-          *,  ^         *.- 

,              .  .    '              /            V                     *  notice  of  the  intention  not  to  continue  was 

sia,  countries  now   at  war,  by  reason  of  r^    rk     -.u      o    inin   u^   ^..^-   i .  4, 

, ,  .    .,                    A  u  •       •      i»    i.           i.  given.    On  December  3,  1010,  however,  just 

which  the  agreement,  being  in  effect  a  part-  ®  _     4,u   v.  t    ^  *i,:-    I..-*    «.--    «i«j    \u^ 

, .    ,   .  ®        .,     '         **      ..         ,    '^,  a  month  before  this    suit    was    filed,    the 

nership  between  these  corporations,  is  abso-  . ___-___x  ^  Question  was  renewed  for  a 

lutely  at  an  end  and  all  further  transac-  ^^^^J  g^^  y^rs                 renewed  for  a 

tions  under  it  are  void  and  illegal.    All  com-  P^^^           ^J^  ^^^  argument  on  behalf  of 

mercal   intercourse   between   these  parties  ^^^  ^^^  g^^^^  ^  statement  of  the  corpo- 

has   been  prohibited,  as  can  be  judicially  ^^^  defendante  to  the  bill,  some  of  wh^ 

noticed.                   rr  -^  a  o^  t       ic  nr  n  ^^  become  parties  to  the  alleged  illegal 

Montgomery  V.  United  States,  16  Wall,  .^^^ination    by    subsidiary  a^p^eement  or 

396,  21  L.  ed.  97 ;  United  States  v.  Lapfene,  ^^^^^^^^  ^A^  a*  ^  later  date   than   the 

17  Wall.  601,  21  L.  ed.  693,  7  Moore,  Inter-  ^^ff^rn^^TrJo! 

..       ,  T     V-,.      a. J.    OCA  original  contract, 

national  Law  Dig.  244,  250.  ^   ^r^y^^  ^jj^  j^^^  Steamship  Company, 

Thw  court  will  not  entertain  moot  cases  limited,  hereafter  called  the   'Allan   Lin^' 

or  cases  in  which  the  issues  have  already  ^     g^.^j^j^     corporation,     operating     from 

been  settled  by  Upse  of  time  or  otW^  Portland,     Boston,    and     Philadelphia    to 

Richardson  vMcChesney,  218  U.  8.  487,  j^^^        Liverpool,    and  Glasgow  and  re- 

54  L.  ed.  1121,  31  Sup.  Ct.  Rep.  43;  Buck's  ^^^^     »             r     »                  -o 

Stove  &  Range  Co.  V   American  Federation  ^^^^^  g   "International  Mercantile  Ma- 

of  Labor   219  U.  8.  681,  66  L.  ed   345    31  ^^^  Company,  a  New  Jersey  corporaUon, 

Sup.  Ct.  Rep.  472;  Gompers  v  Buck's  Stove  operating  from  New  York  and  PhiladelphU 

t^!^  o?-T^l\^;^o1   o%:f^o\  a  ^  ^  to  Liverpool  and  Southampton  and  return. 

797,  809,  34  L.R.A.(N^.)  874,  31  Sup.  Ct  3   .j^^^       together  with  those  of  its 

Rep.  492;  Wmgert  v.  First  Nat.  Bank,  223  ^^^^i^^  company,  defendant  IntemaUon- 

F.\®'t^.I?;  ^^     «             lo.   TT  ^o  -h^F:  al  Navigation  Company,  Limited,  also  oper- 

391;  Little  v.  Bowery  134  U.  S.  647,  33  ^4.       ^^^^  ^^^  y^^k  and  Philadelphia  to 

L.  ed.  1016,  10  Sup.  Ct  Rep.  620;   Flour  Liverpool    and    Southampton,    ...    are 

Inspectors  v.  Glover,  160  U.  S.  170,  40  L.  referred    to  as  the    'American    Line.'     Be- 

ed.  382,  16  Sup.  Ct.  Rep.  321;  California  v.  ^.^j^    International    Navigation    Company, 

San  Pablo  &  T.  K  Co.  149  U.  S.  308,  37  L.  Limited,    it    also    controls    through    stock 

cd.  747,  13  Sup.  Ct.  Rep.  876;   San  Mateo  ownership  the  defendants  British  &  North 

County  V.  Southern  P.  R.  Co.  116  U.  S.  138,  Atlantic      Steam      Navigation      Company, 

29  L.  ed.  689,  6  Sup.  Ct.  Rep.  317;  Mills  Limited,  Soci6t«  Anonyme    de    Navigation 

V.  Green,  169  U.  S.  661,  40  L.  ed.  293,  16  g^jg^  Americaine,  and  Oceanic  Steam  Navi- 

Sup.  Ct.  Rep.  132;  Jones  v.  Montague,  194  g^^i^^  Company,  Limited. 

U.  S.  147,  48  L.  ed.  913,  24  Sup.  Ct.  Rep.  4.  "British  &  North  Atlantic  Steam  Navl- 

611.  gation  Company,  Limited,  a  British  corpo- 

Mr.  Joseph  Iiarocque  argued  the  cause,  ration,  hereafter  called  the  'Dominion  Line,' 

and,  with  Messrs.  William  G.  Choate  and  operating  from  Portland  to  Liverpool  and 

Nelson  Shipman,  filed  a  brief  for  the  North  '^®*"''"-     .^^^  ,                ^    xt     •     *•      «  , 

German  Lloyd  et  al.  ,  ^'  7^^^^  ^T^"       Navigation  Beige 

''  Americaine,    a    Belgian    corporation,    here- 

Mr.  Ralph  James  M.  Bullowa  filed  a  brief  after  called  tlie  *Red  Star  Line,'  operating 
for  the  Russian  East  Asiatic  Steamship  I  from  New  York  and  Philadelphia  to  Ant- 
Company  et  aL  werp  and  return. 


1915. 


UNITED  STATES  v.  HAMBURGAMERIKANISCHE  Oa        469-478 


6.  "Oeemnie  Steam  Navigation  Company, 
Limited^  a  British  corporation,  hereafter 
eallcd  the  'White  Star  Line/  operating 
from  New  Yoric  and  Boston  to  Liverpool 
and  Southampton  and  return. 

7.  "The  Anchor  Line  (Henderson  Broth- 
ers), Limited,  a  British  corporation,  here- 
after called  the  'Anchor  Line,'  operating 
from  New  York  to  Glasgow  and  return. 

8.  "Canadian  Pacific  Railway  Company, 
a  Canadian  corporation,  operating  a  regu- 
lar line  of  steamships,  hereafter  called  the 
'Canadian  Pacific  Line,'  from  Montreal, 
Quebec,  and  St.  John  in  the  Dominion  of 
Canada  to  Liverpool,  England,  and  return. 
It  also  owns  and  operates  a  transconti- 
nental railroad  which,  partly  through 
branches  running  into  the  United  States 
and  partly  through  connections  with  the 
Wabash  and  other  American  railroads, 
[470]  transports  a  substantial  proportion 
(12  per  cent)  of  its  steamship  passengers 
to  and  from  points  in  this  country. 

0.  "The  Cunard  Steamship  Company, 
Limited,  a  British  corporation,  hereafter 
called  ttiB  'Cunard  Line,'  operating  from 
New  York  and  Boston  to  Liverpool  in  Eng- 
land, Fiume  in  Hungary,  and  Trieste  in 
Austria,  and  return. 

10.  "Hamburg-Amerikanische  Packetfahrt- 
Actien  Gesellschafti  a  German  corporation, 
hereafter  called  the  'Hamburg-American 
Line,'  operating  from  New  York  to  Ham- 
burg and  return. 

11.  "Nord  Deutscher  Lloyd,  a  German 
corporation,  hereafter  called  the  'North  Ger- 
man Lloyd  Line/  operating  from  New  York, 
Baltimore,  and  Galveston  to  Bremen  and 
return. 

12.  "Nederlandsh-Amerikaansche  Stoom- 
vaart  Maatschapij  ( Holland- Amerika  Lijn ) , 
a  Netherlands  corporation,  hereafter  called 
the  'Holland-American  Line/  operating  be- 
tween New  York  and  Rotterdam  and  re- 
turn. 

13.  "Russian  East  Asiatic  Steamship 
Company,  a  Russian  corporation,  hereafter 
called  the  'Russian-American  Line,'  oper- 
ating between  New  York  and  Libau,  Rus- 
sia, and  return." 

The  individuals  named  as  defendants 
were  the  principal  officers  and  agents  in 
this  country  of  the  corporate  defendants. 
We  extract  from  the  argument  on  behalf 
of  the  government  the  following  statement 
of  the  main  provisions  of  the  principal 
agreement. 

"(1)  The  parties  guarantee  to  each 
other  certain  definite  percentages  of  the 
entire  steerage  traffic  carried  by  them  both 
eaatbound  and  westbound  between  Euro- 
pemn  ports  and  the  United  States  and 
Canada,  except  Mediterranean  passengers. 

"(2)  Any  line  exceeding  its  allotment 
•0  Ii.  ed. 


must  pay  into  the  pool  a  compensation 
price  of  £4  for  each  excess  passenger,  which 
sum  is  to  be  paid  proportionately  to  the 
line  or  lines  [471]  which  have  not  carried 
their  full  quota.  It  is  expressly  stated  that 
this  provision  'forms  one  of  the  main  fea- 
tures of  the  entire  contract' 

"(3)  Each  line  must  make  a  weekly  re- 
port of  the  number  of  steerage  passengera 
carried,  and  from  these  the  secretary  of  the 
pool  compiles  weekly  statements  showing 
the  pool  position  of  each  line.  He  also  pre- 
pares each  month  provisional  accounts  of 
the  compensation  due  from  lines  which 
have  exceeded  their  quota.  This  must  be 
paid  immediately  on  pain  of  heavy  penal- 
ties. Final  settlements  are  made  at  the 
end  of  each  year. 

"(4)  Each  line  undertakes  to  arrange  its 
rates  and  service  in  such  manner  that  the 
number  of  steerage  passengers  it  actually 
carries  shall  correspond  as  nearly  as  pos- 
sible with  the  number  allotted  to  it  by  the 
contract.  If  any  line  exceeds  its  proportion 
it  is  in  duty  bound  to  adopt  measures 
calculated  to  bring  about  a  correct  adjust- 
ment. The  other  lines  may  either  await  the 
action  of  the  individual  line,  or  a  majority 
of  the  lines  representing  75  per  cent  of  the 
pool  shares  can  immediately  order  rates  on 
a  plus  line  to  be  raised  or  rates  on  a  minus 
line  to  be  lowered,  and  from  this  order 
there  is  no  appeal.  It  is  expressly  stated, 
however,  that  'all  parties  were  unanimous- 
ly of  the  opinion  that  the  adjustment  is, 
whenever  practicable,  to  be  effected  not  by 
reducing  the  rates  of  one  line,  but,  on  the 
contrary,  by  raising  the  rates  of  one  or 
several  of  the  lines.  i 

"(5)  No  line  has  the  right  to  alter  its 
steerage  rates  without  having  previously 
informed  the  secretary;  i.  e.,  all  lines  are 
bound  to  maintain  existing  rates  until  the 
other  pool  members  are  notified. 

"(6)  No  circulars  or  publications  shall 
be  issued  by  any  line  reflecting  upon  or 
instituting  comparisons  with  any  other 
conference  line  unfavorable  to  the  latter, 
and  no  party  shall  support  (advertise  in) . 
any  newspaper  which  shall  systematically 
attack  any  conference  line.  I 

"(7)  To  insure  the  faithful  performance 
of  the  agreement,  [472]  each  line  deposits 
with  the  secretary  a  promissory  note  in  the 
amount  of  £1,000  for  each  per  cent  of  traffic, 
allotted  to  it  in  the  pool.  From  this 
amount  penalties  may  be  collected  ranging 
from  £250  for  smaller  infractions  to  the 
forfeiture  of  the  entire  deposit  if  the  line 
withdraws  from  the  agreement  before  its 
expiration,  refuses  to  pay  compensation 
money,  or  assists  directly  or  indirectly  any 
opposition  line.  { 

"(8)  New  lines  may  be  admitted  or  th« 


472-474 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


terms  of  the  agreement  altered  only  by 
unanimous  vote,  unless  otherwise  provided 
in  the  contract. 

"(0)  To  assist  in  the  carrying  out  of  the 
agreement  a  secretary  was  appointed. 

*'(10)  Regular  meetings  are  to  be  held 
alternately  at  London  and  Cologne  for  the 
purpose  of  carrying  out  this  agreement  and 
agreements  collateral  thereto.  These  meet- 
ings constitute  what  is  called  the  Atlantic 
Conference. 

"Representatives  of  the  Atlantic  Confer- 
ence Lines  likewise  meet  in  New  York  in 
what  is  called  the  American  Atlantic 
Conference  or  New  York  Conference." 

It  is  to  be  observed  in  addition  that  the 
agreement  expressly  provided  that  the 
withdrawal  of  any  one  of  the  lines  from  the 
contract  should  release  all  others  from  all 
future  obligation  unless  the  others  agreed 
among  themselves  to  continue. 

To  the  elucidation  of  the  view  we  take  of 
the  case  it  suffices  to  say  that,  as  the  re- 
sult of  the  answers  of  the  defendants,  the 
issues  which  arose  for  decision  were  two- 
fold in  character:  Did  the  anti-trust  act 
relate  to  the  business  of  ocean  transporta- 
tion with  which  the  assailed  agreement  and 
those  subsidiary  to  it  were  concerned;  and 
if  so,  did  the  agreements  and  the  conduct 
of  the  defendants  under  them  constitute  a 
violation  of  the  provisions  of  the  anti-trust 
act? 

The  court  below,  although  deciding  that 
the  ocean  [473]  transportation  covered  by 
the  main  agreement  was  under  the  control 
of  the  anti-trust  act,  yet  held  that  the  as- 
sailed contract  and  the  action  of  the  parties 
under  it  were  not  within  the  terms  of  the 
act,  and  therefore  that  the  complaint  of  the 
government  on  that  subject  was  without 
foundation.  The  court,  however,  concluded 
that  a  certain  subsidiary  agreement  which 
had  been  entered  into  in  the  process  of  the 
execution  of  the  original  agreement  had 
given  rise  to  a  practice  which  was  rep- 
robated by  the  anti-trust  act,  and  the 
further  execution  of  such  agreement  and  the 
carrying  out  of  the  practice  under  it  were 
by  the  decree  forbidden.  The  court  reached 
these  conclusions  upon  opinions  formed 
concerning  the  nature  and  character  of 
ocean  transportation  with  which  the  agree- 
ment was  concerned,  the  evils  which  had 
existed  in  the  traffic  and  which  it  was  the 
purpose  of  the  agreement  to  remedy,  the 
practice  of  the  commercial  world  in  dealing 
with  such  transportation  in  the  past,  the 
benefit  which  had  resulted  to  commerce 
from  the  execution  of  the  agreement,  the 
reflex  light  thrown  upon  its  intent  and 
object  by  the  reaisonable  rates  which  had 
been  applied  in  its  execution,  and  many 
other  conditions  which  had  come  to  pass  as 
890 


a  result  of  the  agreement,  tending  to  the 
amelioration  of  the  conditions  of  steerage 
travel  and  the  resulting  benefaction  to  the 
safety,  comfort,  and  health  of  the  millions 
of  human  beings  traveling  by  steerage,  to 
which  class  of  traffic  alone  the  contract  re- 
lated.    21G  Fed.  071. 

The  contentions  which  presumably  were 
urged  in  the  court  below  and  which  it  ia 
deemed  by  the  parties  here  arise  for  de- 
cision will  at  once  appear  by  giving  a  brief 
statement  concerning  those  made  on  thia 
appeal  by  the  United  States  and  by  the  de- 
fendants as  appellees  or  on  a  cross  appcaL 
On  behalf  of  the  United  States  it  is  insisted 
that  the  provisions  of  the  anti-trust  act 
govern  the  subject,  that  the  terms  of  the 
agreement  constitute  a  plain  violation  of 
tliat  act,  that  the  conduct  of  the  parties 
under  [474]  it  adds  additional  force  to  the 
considerations  arising  from  the  text  of  the 
contract,  since  it  demonstrates  that  the 
purpose  of  the  agreement  was  to  destroy 
competition,  to  acquire  dominion  over  ratets 
and  to  fix  them  as  the  result  of  monopoly, 
and  that  it  is  wholly  irrelevant  to  inquire 
whether,  in  executing  the  wrongful  powers 
which  were  acquired  by  the  contract,  the 
parties  were  beneficent  in  their  action,  since 
what  the  act  forbids  is  the  monopoly  and 
the  combination  for  the  purpose  of  obtain- 
ing monopoly,  and  there  is  no  distinction 
in  the  act  between  a  good  monopoly  and  a 
bad  one.  On  the  other  hand,  the  conten- 
tions of  the  defendants  are  as  follows: 
First,  that,  conceding  the  power,  it  is  not 
to  be  assumed,  in  the  absence  of  express 
declaration  to  that  effect,  that  the  purpose* 
of  Congress  in  the  anti-trust  act  was  to 
extend  its  authority  into  foreign  countries 
to  prevent  the  execution  in  such  countries 
of  contracts  which  were  there  legal  and 
and  which  were  intended,  in  view  of  tiie 
conditions  there  prevailing,  to  better  enable 
the  discharge  by  ocean  carriers  of  their 
duty.  Second,  that  it  appears  from  subse- 
quent legislation  of  Congress  that  it  was 
not  its  intention  to  deal  with  ocean  trans- 
portation from  and  to  foreign  countries  by 
the  anti-trust  act,  since  such  transportation 
was  dealt  with  in  subsequent  legislation  in 
a  manner  which  persuasively  leads  to  such 
conclusion.  Chap.  349,  §§  73-77,  28  Stat, 
at  L.  570,  Comp.  Stat.  1913,  §§  8831-8835 ; 
chap.  11,  §  34,  30  Stat,  at  L.  213;  Joint 
Resolution,  38  Stat,  at  L.  779.  Third,  that 
in  fully  investigating  and  considering  the 
question  whether  ocean  transportation  to 
and  from  foreign  countries  was  included  in 
the  anti-trust  act,  in  an  elaborate  report  a 
committee  of  the  House  of  Representatives 
had  expressed  conclusions  in  conflict  with 
the  view  that  the  act  did  apply,  and  had 
recommended  the  adoption  of  legislation  to 

239  U.  8. 


1915. 


UNITED  STATES  v.  HAMBURGAMERIKANISCHE  CO.         474-477 


fotrd  agminst  evils  in  such  trafllc,  if  any, 
tnd  which  legislation,  if  adopted,  would  be 
in  a  large  sense  incompatible  [475]  with 
the  conclusion  that  the  anti-trust  act  was 
applicable  to  such  transportation. 

While  this  mere  outline  shows  the  ques- 
tions which  are  at  issue  and  which  would 
require  to  be  considered  if  we  had  the  right 
to  decide  the  controversy,  it  at  once  fur- 
ther demonstrates  that  w^  may  not,  without 
disregarding  our  duty,  pass  upon  them  be- 
cause of  their  absolute    want    of    present 
sc'tuality ;  that  is,  because  of  their  now  moot 
character  as  an  inevitable  legal  consequence 
springing  from  the  European   War  which 
is  now  flagrant,— ra  matter    of    which    we 
take  judicial  notice.    Montgomery  v.  Unit- 
ed SUtes,  15  Wall.    395,    21    L.    ed.    97; 
United  States  v.  Lap^ne,  17  Wall.  601,  21 
L.  ed.  693,  7  Moore,  Int.  Law  Dig.  244,  250. 
The  legaUproposition  is  not    in    substance 
controverted,    but    it  is  urged,  in  view  of 
the  character  of  the  questions  and  the  possi- 
bility or  probability  that,  on  the  cessktion 
of  war,  the  parties  will  resume  or  recreate 
their  asserted  illegal  combination,  we  should 
now  decide  the  controversies  in  order  that 
by  operation  of  the  rule  to  be  established 
any  attempt  at  renewal  of  or  creation  of 
the  combination  in  the  future  will  be  ren- 
dered impossible.     But  this  merely  upon  a 
prophecy  as  to  future  conditions  invokes  the 
exercise  of  judicial  power  not  to  decide  an 
4^xisting    controversy,    but    to    establish    a 
rule  for  controlling   predicted   future   con- 
duct, contrary  to  the  elementary  principle 
which  was  tlius  stated  in  California  v.  San 
Pablo  k  T.  R.  Co.  149  U.  S.  308,  314,  37  L. 
ed.  747,  748,  13  Sup.  Ct.  Rep.  876: 

'The  duty  of  this  court,  as  of  every  ju- 
dicial tribunal,  is  limited  to  determining 
rights  of  persons  or  of  property  which  are 
actually  controverted  in  the  particular 
case  before  it.  When,  in  determining  such 
rights,  it  becomes  necessary  to  give  an 
opinion  upon  a  question  of  law,  that  opinion 
may  have  weight  as  a  precedent  for  future 
decisions.  But  the  court  is  not  empowered 
to  decide  moot  questions  or  abstract 
propositions,  or  to  declare,  for  the  govern- 
ment of  future  cases,  principles  or  rules  of 
law  which  cannot  affect  the  result  as  to  the 
thing  in  issue  [476]  in  the  case  before  it. 
No  stipulation  of  parties  or  counsel,  whether 
in  the  case  before  the  court  or  in  anv  othdr 
case,  can  enlarge  the  power,  or  aflfect  the 
duty,  of  the  court  in  this  regard." 

See  also  Lord  Veazie,  8  How.  251,  12  L. 
ed.  1067;  Cheong  Ah  Moy  v.  United  States, 
113  U.  S.  216,  28  L.  ed.  983,  6  Sup.  Ct.  Rep. 
431;  Little  v.  Bowers,  134  U.  S.  547,  33  L. 
•0  li.  ed. 


ed.  1016,  10  Sup.  Ct.  Rep.  620;  Jones  v. 
Montague,  194  U.  S.  147,  48  L.  ed.  013,  24 
Sup.  Ct.  Rep.  611;  Security  Mut.  L.  Ins. 
Co.  V.  Prcwitt,  200  U.  S.  446,  50  L.  ed.  546, 
26  Sup.  Ct.  Rep.  314;  Richardson  v.  Mc- 
Chesney,  218  U.  S.  487,  54  L.  ed.  1121,  31 
Sup.  Ct.  Rep.  43;  Stearns  v.  Wood,  236  U. 
S.  75,  50  L.  ed.  475,  35  Sup.  Ct.  Rep.  229. 

Our  attention  has  indeed  been  directed 
to  a  recent  decision  in  United  States  t. 
Prince  Line,  220  Fed.  230,  where,  al- 
though it  was  recognized  that  "the  combi- 
nation against  which  this  proceeding  is 
directed,  composed  of  two  British  and  two 
German  steamship  companies,  has  been 
practically  dissolved  as  a  result  of  the 
European  War,"  and  'the  questions  present- 
ed "have  become  largely  academic,"  the 
court  nevertlieless  proceeded  to  consider  and 
dispose  of  the  case  on  the  merits,  observing 
in  conclusion,  however:  "In  view  of  the 
fact  that  the  logic  of  events  has  turned  this 
investigation  into  an  autopsy,  instead  of  a 
determination  of  live  issues,  it  seems  un- 
necessary to  discuss  the  persuasiveness  of 
the  proofs,"  etc.  But  we  cannot  give  our 
implied  sanction  to  what  was  thus  done  or 
accept  the  persuasiveness  of  the  reasoning 
upon  which  the  action  was  based,  in  view 
of  the  settled  decisions  of  this  court  to  the 
contrary,  and  the  fundamental  principles  of 
public  policy  upon  which  they  are  based. 
In  fact,  at  this  term,  although  we  were 
pressed  to  take  jurisdiction  of  a  cause  in 
a  capital  case  after  the  death  penalty  had 
been  inflicted  on  the  accused,  we  declined  to 
do  so  and  dismissed  for  want  of  jurisdic- 
tion because  the  case  had  become  a  moot 
one.  Director  of  Prisons  v.  Court  of  First 
Instance,  230  U.  S.  633,  post,  478,  36  Sup. 
Ct.  Rep.  220. 

Nor  is  there  anything  in  United  States  ▼. 
Trans-Missouri  Freight  Asso.  166  U.  S.  290, 
41  L.  ed.  1007,  17  Sup.  Ct.  Rep.  540,  and 
Southern  Pacific  Terminal  Co.  v.  Interstate 
Commerce  Commission,  219  U.  S.  498,  55  L. 
ed.  310,  31  Sup.  Ct.  Rep.  270  [477]  which 
conflicts  with  this  fundamental  doctrine.  In 
the  first,  the  Trans-Missouri  Case,  a  combi- 
nation between  railroads,  charged  to  be 
illegal,  was  by  consent  dissolved,  and  it 
was  held  that,  in  view  of  the  continued 
operation  of  the  railroads  and  the  relations 
between  them,  their  mere  consent  did  not 
relieve  of  the  duty  to  pass  upon  the  pending 
charge  of  illegality  under  the  statute  of 
their  previous  conduct,  since  by  the  mere 
volition  of  the  parties  the  combination 
could  come  into  existence  at  any  moment. 
Leaving  aside  some  immaterial  diflferences. 
in  terms  the  ruling  in  the  Southern  Paciflc 


477»  478  SUPREME  COURT  OF 

Case  was  baaed  upon  the  decision  in  the 
Trans-Missouri  Case.  Here,  on  the  con- 
trary, the  business  in  which  tiie  parties  to 
the  combination  were  engaged  has,  by  force 
of  events  beyond  their  control,  ceased,  and 
by  the  same  power  and  a  continued  relation 
concerning  it  between  them  has  become  un*. 
lawful  and  impossible.  The  difference  be- 
tween this  and  the  Trans-Missouri  Case  was 
clearly  laid  down  in  Mills  t.  Green,  169  U. 
S.  651,  40  L.  ed.  293,  Id  Sup.  Ct  Rep.  132, 
where,  after  announcing  the  general  rule 
as  to  the  absence  of  authority  to  consider 
a  mere  moot  question,  and  referring  to 
possible  exceptions  resulting  from  the  fact 
that  the  want  of  actuality  had  arisen  either 
from  the  consent  of  the  parties  or  the  action 
of  a  defendant,  it  was  declared:  "But  if 
the  intervening  event  is  owing  to  the  plain- 
tiff's own  act  or  to  a  power  beyond  the  con- 
trol of  either  party,  the  court  will  stay  its 
hand." 

Although  it  thus  follows  that  there  are 
no  issues  on  the  merits  before  us  which  we 
have  a  right  to  decide,  it  yet  remains  to  be 
determined  what  our  order  should  be  with 
reference  to  the  decree  below  rendered, 
which,  as  we  have  seen,  was  against  the 
government  and  in  favor  of  the  assailed 
combination  because  it  was  found  not  to  be 
within  the  prohibitions  of  the  anti-trust 
act.  As  established  by  the  ruling  in  South 
Spring  Hill  Gold  Min.  Co.  v.  Amador 
Medean  Gold  Min.  Co.  145  U.  S.  300,  30 
L.  ed.  712,  12  Sup.  Ct  Rep.  921,  our  con- 
clusion on  such  subject  must  be  reached 
without  at  all  considering  the  merits  of  the 
cause,  [478]  and  must  be  based  solely  upon 
determining  what  will  be  "most  consonant 
to  Justice"  in  view  of  the  conditions  and 
circumstances  of  the  particular  case. 
Coming  to  consider  the  question  in  that 
light,  and  in  view  of  the  nature  and  char- 
acter  of  the  conditions  which  have  caused 
the  case  to  become  moot,  we  are  of  opinion 
that  the  ends  of  justice  exact  that  the  judg- 
ment below  should  not  be  permitted  to 
stand  when,  without  any  fault  of  the 
government,  there  is  no  power  to  review  it 
upon  the  merits,  but  that  it  should  be  re- 
versed and  the  case  be  remanded  to  the 
court  below  with  directions  to  dismiss  the 
bill  without  prejudice  to  the  right  of  the 
government  In  the  future  to  assail  any 
actual  contract  or  combination  deemed  to 
offend  against  the  anti-trust  act. 

And  it  ia  so  ordered. 

Mr.  Justice  McReynoIds  took  no  part  in 
the  consideration  or  decision  of  these  oases. 


THE  UNITED  STATES. 


Oot.  Twkm, 


MYLES  SALT  COMPANY,  Limited,  Plff. 

in  Err., 

V. 

BOARD  OF  COMMISSIONERS  OF  THE 
IBERIA  k  ST.  MARY  DRAINAGE  DIS- 
TRICT and  George  Henderson,  Sheriff 
and  £x-officio  Tax  Collector  of  the  Par- 
ish of  Iberia. 

(See  S.  C.  Reporter's  ed.  478-485.) 

Error  to  state  ooart  —  Federal  question 
—  validity  of  state  law  as  adminis- 
tered. 

•  1.  The  contention  that  a  state  law  as 
administered  and  justified  by  the  highest 
court  of  the  state  violates  the  Federal  Con- 
stitution presents  a  Federal  question  which 
will  support  a  writ  of  error  from  the  Feder- 
al Supreme  Court  to  the  state  court,  al- 
though the  state  law  as  written  is  not 
attacked. 
[For  other  cases,  see  Appeal  and  Error,  1645- 

1672.  in  Digest  Sup.  Ct.  1808.]  . 

Constitutional  law  —  due  process  ot 
law  —  drainage  district  ^  inclndini: 
land  not  benefited. 

2.  An  island  which,  being  high  land, 
is  not,  and  cannot  be,  benefited  directly  or 
indirectly  by  a  drainage  improvement,  may 
not,  consistently  with  the  due  process  of 
law  clause  of  U.  S.  Const.,  14th  Amend.,  be 
included  within  the  drainage  district  sole- 
ly fot  the  purpose  of  deriving  a  revenue 
from  the  levy  and  collection  of  drainage 
taxes  thereon  for  the  benefit  of  other  lands 
subject  to  be  improved  by  drainage. 
[For  other  cases,  see  Constitutional  Law, 
661-581,  in  Digest  Sup.  Ct.  1808.] 

[No.  141.] 

Argued  December  16,  1915.     Decided  Jan* 

uary  10,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Louisiana  to  review  a  decree 
which   affirmed   a   decree   of   the   District 

Note. — On  the  general  subject  of  writs  of 
error  from  United  States  Supreme  Court  to 
state  courts — see  notes  to  Martin  v.  Hun- 
ter, 4  L.  ed.  U.  S.  97;  Hamblin  v.  Western 
Land  Co.  37  L.  ed.  U.  S.  267 ;  Re  Buchanan, 
30  L.  ed.  U.  S.  884;  and  Kipley  v.  lUinoia 
42  L.  ed.  U.  S.  998. 

As  to  what  adjudications  can  be  brought 
up  for  review  in  the  Supreme  Court  of  the 
United  States  by  writ  of  error  to  those 
courts — see  note  to  Apex  Transp.  Co.  v. 
Garbade,  62  L.R.A.  513. 

As  to  what  constitutes  due  process  of  law, 
generally — see  notes  to  People  v.  O'Brien, 
2  L^RJl,  255;  Kuntz  v.  Sumption,  2  L.ILA. 
655;  Re  Gannon,  5  L.R.A.  350;  Ulman  ▼• 
Baltimore,  11  L.R.A.  224;  Gilman  v.  Tuck- 
er, 13  L.R.A.  304;  Pearson  v.  Yewdall,  24 
L.  ed.  U.  S.  436 ;  and  Wilson  v.  North  Caro- 
lina, 42  L.  ed.  U.  S.  865. 

On  necessity  of  special  benefit  to  sustain 
assessments  for  local  improvements — see 
note  to  Re  Madeira  Irrig.  Dist.  14  LJLA, 
755. 

SS9  V.  8. 


UYLEB  SALT  CO.  t.  BD.  OP  COMUISBIOHIEBB. 


land  tor  drKinage  Uxm.    Reveried  and  »•  Mlsaonrl  P.  S.  Co.  t.  Flt^erald,  160  U. 

■uidad  loT  further  proceedingi.  8.  666,  40  L.  cd.  fi36,  16  Sup.  Ct.  Rep.  38V. 

Sm    ume    CAW    below,    134   Ia.    SOS,    M  Hie  question  propounded  ll  nob  Federal, 

Bo.  823.  bnt  one  td  be  determined   by   tbe  lani  of 

1  be  facta  are  stated  in  tbe  opinion.  Louisiana.    Under  tbe  Uv  of  Louiaiana.  th« 

Mr.  EdKW  H.  F.rrar  ai«ued  tb.  cam*  ■'=**'>''  "'  *^'  leglalatiYO  body  In  the  eier- 

Ud  flirf  a  brief  for  plainUS  in  error:  ^^'^  <•'  **»  di^wetioa  u  to  what  property 

Tbe  drainagB  tax  waa  in  the  nature  of  a  "'"U  ^  included  in  a.  drainage  dietrict  will 

beal  aMesament,  baaed  on  aome  benefit  to  ■"•'  *^  Inquired   Into  by  the   court,  except 

tke   properly    tued.     Tbia    ia   the    law   of  "P*""  'Pec'"!  aMnnent  of  fraud,  which  waa 

LouUian*.  "''*  pl«*ded. 

Levee  Comre.  ».  Lorio  Broa.  33  La.  Ann.  ^  GraTelle  t.  Iberia  t  St.  M.  Drainage 

«76:  Chamocl:  t.  Fordoehe  ft  G.  T.  SpecUl  ^'"'-  ^^  ^-  "3,  28  So.  802;  Burguierea  r. 

Leree  Diet.  38  La.  Ann.  323;  Williams  t.  Sanders,  HI  La.  110,  36  Bo.  4T8;  Kelly  *. 

Bayou  Sale  Drainace  Dirt.  130  Ia.  9ffl>,  68  Chadwick,  104  La.  719,  29  Bo.  286;  Bernard 

Sfc  847.  •■  Bayou   Portage   Drainage  Dirt.   180  I*. 


The  aboTo  ia  the  rule  to  be  applied  in-  the 


837,  68  So.  4S3. 


t  of  the  14th  Amendment  to  the       ■"""  »TP™ent  that  benefit  to  the  property 

Conatitution  of  the  United  Statea,  where  '"  "■•  •"'=  **•"  °P°"  "'"''*  **•"  *""  """W 
the  aeUon  of  a  state  in  asseaaing  such  a  **  justified,  and,  that  there  wai,  therefore, 
Uz  U  arbitrary  and  conflacatory.  *  *"'n8  "'  property  without  due  process  of 

Norwood  V.  Baker,  172  U.  S.  280,  43  L,  ^^-  ^«»  ""*-  '"  **•"  •beenee  of  aTcrmenta 
•d.  443,  10  Sup.  Ct.  Rep.  187;  French  y.  ""*  ^'"  *"  '*  **"'8  ^"''^  *"  contraven- 
Barber  Asphalt  Paving  Co.  181  U.  S.  324,  *'"''  °*  **"  '*"•  "'  *^«  *****  "'  Louisiana,  or 
«  L.  ed.  879.  21  Sup.  Ct.  Rep.  025;  Ton-  that  the  laws  of  Louisiana  i 
«wud»  v.  I^yon.  181  U.  S.  380,  46  L.  ed.  ^,^^  Constitution  of  the  I 
908,  21  Sup.  Ct  Rep.  BOB;  Cau  Farm  ^'^^"H  *  Federal  question  into  the  case  lor 
Co.   T.   Detroit,    181    U.   S,   396,   45   L.   ed.    ^«i«ion. 

914,  21  Sup.  Ct.  Hep.  644;  Detroit  t.  New  Orleans  t.  New  Orleans  Waterworks 
Parker,  181  V.  S.  3B0,  46  L.  ed.  fil7,  21  Sup.  Co-  "2  U.  8.  79,  36  L.  ed.  843,  12  Sup.  Ct 
Ct  Bep.  624;  Union  Refrigerator  Tranait  ^"P'  "*!  ^""'"B  ^-  I*^"""-  B'  U.  S.  694. 
Co.  T.  Kentucky,  199  U.  8.  194,  50  L.  ed.  ^^  ^-  «"■  388;  Brown  t.  Atwell,  92  U.  S. 
ISO,  26  Bup.  Ct.  Hep.  36,  4  Ann.  Caa.  493.    ^^^-  ^^  ^-  «''■  >"'   Church  t.  Kel»ey,   121 

And  the  supreme  wnrt  of  Louisiana  it«lf    V'^-^^fj  ="^  \  "^:  •'™;  \  ^up    Ct.  Hep. 
applied   this    doctrine    in    a    drainage    case    887;  California  Powder  Works  t.  Davis,  161 
Wh^  the  property  in  one  part  of  a  distrirt    U.  8.  389,  38  L  ed.  208,  14  Sup.  Ct  Hep. 
waa  being  taxed  for  the  sole  benefit  of  prop-    "  • 
er^  in  another  part  of  the  district  „  ^o  give  thie  court  jurisdiction  nnder  U. 

Williame  v.  Bayou  Sale  Drainage  Diet  "■  ^'"-  ^tat.  i  708,  several  things  ahonld 
130  La    869    G8  So    847  ^  apparent  front   tbe  record;    the  first   is 

The  'prop^ilion  that'  legislative  dlsore-  that  thqre  was  a  Federal  question  involved 
tien  in  delimiting  a  district  within  which  '""^  determination ;  that  a  decision  of  the 
local  assessments  are  to  be  levied  can  if  *'ederal  question  was  necessary  to  the  de- 
•xercieed  in  an  arbitrary  and  cooilscstory  "'''°''  °'  ">«  ">«*  »"*  ""  actually  decided 
way.  and  that  courts  have  no  authority  to    ^^'  *'*'*  <*""?■  ,     „ 

right  the  wrong,  is  distinctly  repudUted  by  Chouteau  v.  Gibson,  111  U.  S.  ZOO,  28  L. 
thia  court  in  Norwood  v.  Baker,  172  U.  S.  «''■  *""'  ^  ^up.  Ct.  Rep.  340;  Dibble  t.  Bel- 
268.  43  L.  ed.  443,  10  Sup.  Ct.  Rep.  187,  ''ngham  Bay  Land  Co.  183  U.  8.  68.  41 
and  Union  Refrigerator  Transit  Co.  v.  L.  ed.  74,  16  Sup.  Ct.  Bep.  938;  Meyer  v. 
Kentucky,  180  U.  8.  184,  50  L.  ed.  160,  Riclunond,  172  U.  S.  100,  43  L.  ed.  381,  18 
28  Sup.  Ct.  Rep.  30,  4  Ann.  Cas,  493.  Sup.  Ct  Rep.  106. 

The  peculiar  facts  of  this  esse,  as  averred  If  it  appear  from  the  record  that  s  Fed- 
tn  the  plaintilT's  petition,  constitute  a  tsk-  oral  question  was  directly  involved,  so  that 
ing  of  property  without  due  process  of  law,  s  state  court  could  not  have  given  judg- 
ta  flagrant  and  as  manifest  as  that  in  the  ment  without  deciding  it,  that  would  be 
Norwood  Case.  sufficient;  but  resort  cannot  be  had  to  the 

Mr.  L.  T.  Dulan;  argued  the  csuse  snd  expedient  of  importing  into  the  record  the 
filed  a  brief  for  defendants  in  error:  legislation  of  the  state  as  Judicially  known 

The  judgmmt  of  the  supreme  court  of  the  to  ita  courts,  snd  holding  the  vslldity  ot 
state  rests  entirely  upon  an  independent  I  such  legislation  to  have  been  drawn  into 
question  of  pleadings  under  the  laws  of  question  and  decision  necessarily  rendered 
•0  L.  ed.  ««« 


479-181 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Term, 


tliereoii  in  arriving  at  concluBions  actually 
presented  and  considered. 

Powell  v.*  Brunswick  County,  150  U.  S. 
433,  37  L.  ed.  1134,  14  Sup.  Ct.  Rep.  160. 

The  only  issue  raised  by  the  pleadings 
and  passed  upon  by  the  state  court  is  one 
to  bo  determined  under  the  laws  of  Louisi- 
ana; and  the  issue  and  judgment  are  in  no 
manner  affected  by  the  allegations  that 
plaintiff's  property  is  being  taken  without 
due  process  of  law,  in  contravention  of  the 
Federal  Constitution,  when  the  averments 
of  the  petition  are  insufficient  to  maintain 
an  attack  upon  the  tax,  which  is  not  com- 
plained of  as  being  in  violation  of  the  Con- 
stitution and  laws  of  the  state,  and  where 
•no  averment  is  made  that  the  Constitution 
and  laws  of  Louisiana  are  repugnant  to,  or 
in  contravention  of,  the  protective  provi- 
sions of  the  Federal  Constitution. 

Capital  City  Dairy  Co.  v.  Ohio,  183  U. 
8.  238,  248,  46  L.  ed.  171,  170,  22  Sup. 
Ct.  Rep.  120. 

The  decision  of  the  supreme  court  of  Lou- 
ifiana,  affirming  the  decision  of  the  trial 
court,  and  maintaining  the  exception  of  no 
cause  of  action,  is  based  entirely  upon  the 
settled  jurisprudence  of  the  state  as  an- 
nounced by  the  supreme  court  in  a  number 
of  cases,  all  consistent  with  the  jurispru- 
dence of  the  Supreme  Court  of  the  United 
States,  as  announced  in  French  v.  Barber 
Asphalt  Paving  Co.  181  U.  S.  324,  45  L. 
sd.  870,  21  Sup.  Ct.  Rep.  625;  Norwood  v. 
Baker,  172  U.  S.  269,  43  L.  ed.  443,  19  Sup. 
Ct.  Rep.  187;  DeGravelle  v.  Iberia  ft  St. 
M.  Drainage  Dist.  104  La.  703,  29  So.  302; 
Burguieres  v.  Sanders,  111  La.  110,  35  So. 
478;  Bernard  v.  Bayou  Portage  Drainage 
Dist.  130  La.  637,  58  So.  493 ;  Moody  ft  Co. 
▼.  Chadwick,  108  La.  66,  32  So.  181 ;  Kelly 
▼.  Pittsburgh,  104  U.  S.  78,  26  L.  ed.  658; 
Kirtland  v.  Hotchkiss,  100  U.  S.  401,  498, 
400,  25  L.  ed.  558,  562;  Fallbrook  Irrig. 
Dist.  v.  Bradley,  164  U.  S.  112,  41  L.  ed. 
360,  17  Sup.  Ct.  Rep.  56;  Spencer  v.  Mer- 
chant, 125  U.  S.  345,  31  L.  ed.  763,  8  Sup. 
Ct.  Rep.  021;  Kelly  v.  Chadwick,  104  La. 
710,  20  So.  205. 

Mr.  Justice  McKenna  delivered  the  opin- 
ion of  the  court: 

Suit  to  restrain  the  sale  of  plaintiff  in 
error's  land  about  to  be  made,  it  is  alleged, 
by  defendants  in  error,  to  collect  a  tax  of 
6  mills  for  four  years,  aggregating  the  sum 
of  $2,000  and  penalties.  (We  shall  refer 
to  the  parties  as  plaintiff  and  defendants, 
respectively,  that  being  their  relation  in 
the  state  courts.) 

There  is  no  dispute  about  the  state  laws. 
It  is  stated  in  plaintiff's  brief  that  it  is  a 
matter  of  ordinary  'geographic  knowledge 
that  large  portions  of  the  flat  lands  in 
3»4 


Louisiana  adjacent  to  the  Gulf  coast  are 
subject  to  fluvial  or  tidal  overflow  and  must 
be  leveed  and  drained  by  systems  of  gen- 
eral and  special  public  levees  and  drains. 
To  this  end  [480]  legislation  has  been  en- 
acted, beginning  in  1888  and  receiving  con- 
stitutional sanction  in  1808  (art.  281).  By 
an  act  passed  in  1900  (Acts  of  1900,  p.  12) 
previous  statutes  were  consolidated  and  it 
was  provided  that  when  the  drainage  of  any 
locality  was  such  that,  in  the  opinion  of 
the  police  juries  of  the  respective  parishes, 
it  should  become  necessary  to  organize  or 
create  a  drainage  district  composed  partly  , 
of  land  situated  in  adjoining  parishes,  then 
such  drainage  district  should  be  created  by 
joint  action  of  the  police  juries  of  the  re- 
spective parishes. 

The  districts  were  authorized  to  issue 
bonds  for  drainage  purposes  and  levy  a  5- 
mill  tax  on  all  property  subject  to  taxa- 
tion situated  in  them.  The  statute  was 
amended  in  details  and  re-enacted  in  1002 
and  1010  (Acts  of  1002,  p.  203;  Acta  of 
1010,  p.  542). 

Acting  under  these  statutes  the  police 
juries  of  the  adjoining  parishes  of  Iberia  and 
St.  Mary  organized  the  drainage  district 
with  which  the  case  at  bar  is  concerned, 
and  the  organization  of  which  is  attacked. 

The  ground  of  the  attack  is  that  the 
district  for  the  construction  and  mainte- 
nance of  which  the  tax  was  levied  was  of  no 
benefit  to  plaintiff's  land  and  was  formed 
only  for  the  benefit  of  the  other  lands, 
was  an  unconstitutional  usurpation  of  au- 
thority, and  was  and  is  an  effort  to  take 
plaintiff's  property  without  due  process  of 
law,  in  violation  of  the  14th  Amendment  to 
the  Constitution  of  the  United  States. 

The  case  was  heard  upon  the  petition  in 
the  case  and  an  exception  by  defendants  of 
no  cause  of  action.  The  court  dissolved 
the  injunction  that  had  been  theretofore 
granted  and  dismissed  the  suit  with  an 
»ward  of  costs  and  attorneys*  fees.  Judg- 
ment was  entered  accordingly  and  sustained 
by  the  supreme  court  of  the  state. 

The  trial  court  held  that  the  gist  of  plain- 
tiff's demand  was  to  the  effect  that  no  bene- 
fit was  or  would  be  derived  by  its  property 
by  the  general  drainage  system  and  the  levy 
[481]  and  collection  of  tiie  tax  on  its  prop- 
erty. The  court  said  the  question  presented 
by  the  demand  was  no  longer  an  open  one. 
The  principle  laid  down  by  the  courts,  it 
was  declared,  is  that  the  ereation  and  deter- 
piination  of  drainage  districts  being  a  l^it- 
imate  and  lawful  exercise  of  discretionary 
powers,  the  courts  are  without  power  to 
impugn  or  inquire  into  motives  "where  no 
fraud  is  pleaded."  The  supreme  oourt  af- 
firmed the  action  of  the  district  court  and 
the  principle  upon  which  it  was  based,  aay- 

189  U.  8. 


1915. 


MYLES  SAI-T  CO.  v.  BD.  OF  C0M311SSI0NERS. 


481-483 


ing  tlimt  that  court  accepted  the  view  as 
comet  "that  the  decisions  heretofore  ren- 
dered lettle  the  question  forever,  that  the 
local  authorities  as  to  drainage  have  the  ab- 
solute right  to  organize  drainage  districts 
and  give  them  shape  and  boundary  lines 
as  they  choose."  And  it  was  further  said: 
"It  is  upon  that  theory  that  the  case  is  be- 
fore us  for  decision;  .  .  •  without  an 
element  of  fraud  alleged,  the  court  properly 
dismissed  the  suit.  .  .  .  Here  no  fraud 
has  been  alle^^ed,  nor  its  equivalent."  [134 
La.  005,  906,  04  So.  825.]  Prior  cases  were 
cited. 

la  this  a  correct  view  of  the  petition? 
The  principle  of  law  involved  in  the  answer 
to  the  question  is  well  known.  There  is 
no  doubt  that  the  legislature  of  a  state 
may  constitute  drainage  districts  and  de- 
fine their  boundaries,  or  may  delegate  such 
authority  to  local  administrative  bodies,  as, 
in  the  present  case,  to  the  police  juries  of 
the  parishes  of  the  state,  and  that  their  ac- 
tion cannot  be  assailed  under  the  14th 
Amendment  unless  it  is  palpably  arbitrary 
and  a  plain  abuse.  Mouck  v.  Little  River 
Drainage  Dist.  decided  November  20,  1015 
[230  U.  8.  254,  ante  266,  36  Sup.  Ct.  Rep. 
3d].  Does  the  district  under  review  come 
within  the  principle  or  its  limitation?  Was 
it  formed  in  an  arbitrary  manner  and  in 
plain  abuse  of  power?  The  answer  depends 
upon  the  allegations  of  the  petition,  which, 
being  excepted  to  for  insufficiency  in  law, 
must  be  taken  as  true. 

We  condense  them  narratively  as  follows: 
Weeks  island,  [482]  the  property  which  is 
the  subject  of  the  controversy,  is  one  of  sev- 
eral islands,  being  the  highest  uniform  ele- 
vation above  sea  level  in  southwest  Louisi- 
ana. It  rises  abruptly  175  feet  or  more,  is 
surrounded  on  two  sides  by  bayous,  on  the 
rear  by  a  salt-water  marsh,  and  on  the 
front  by  a  bay  (Vermilion  bay),  with  a 
small  strip  of  salt-water  marsh  intervening. 

Its  topography  is  high  and  rolling,  the 
drainage  excessive,  and  washing  and  erosion 
are  serious  problems.  The  country  around 
it  outside  of  the  sea  marsh  is  thickly  set- 
tled and  presents  the  character  of  low 
lands  as  distinguished  from  high  lands  or 
uplands,  reaching  a  maximum  elevation  of 
about  15  feet  as  against  a  maximum  eleva- 
tion of  Weeks  island  of  175  feet. 

In  lieu  of  needing  drainage  the  problem 
the  island  is  confronted  with  "is  to  guard 
against  washing  and  erosion,  and  that  the 
drainage  of  all  of  the  territory  between  it 
and  Bayou  Teche  on  all  sides  and  to  all 
extents  leads  to  the  marshes  subject  to 
tidal  overflow  between  it  and  the  main- 
land." 

Some  years  ago  a  drainage  district,  known 
as  the  Iberia  &  S.  Mary  Drainage  District,/ 
•0  li.  ed. 


was  organized  at  the  instigation  of  inter- 
csted  individuals  for  the  purpose  of  drain- 
age into  the  bayous  and  marshes  surroupd- 
ing  Weeks  island  of  certain  lands  lying 
between  Bayou  Teche  and  the  marshes. 

Solely  with  the  view  of  deriving  revenues 
from  the  assessment  of  Weeks  island  and 
the  salt  deposit  therein,  and  only  for  the 
benefit  of  the  other  properties,  and  not 
upon  the  theory  that  a  general  scheme  of 
drainage  would  inure  to  the  benefit  of  all 
of  the  property  therein,  even  indirectly, 
and  not  through  an  exercise  of  sound  and 
legal  legislative  discretion,  the  island  waa 
included  within  the  confines  of  the  district. 
In  pursuance  of  such  scheme  and  plan  an 
election  was  held  for  the  imposition  of  an 
ad  valorem  tax  of  5  mills  for  a  period  of 
forty  years  [483]  upon  which  to  predicate 
an  issue  of  bonds.  The  election  resulted  in 
the  imposition  of  the  tax. 

It  was  not  intended  nor  has  it  ever  been 
intended,  nor  was  it  possible  nor  is  it 
possible,  to  give  any  of  the  benefits  of  the 
drainage  scheme  to  Weeks  island  or  to  the 
salt  deposit  therein,  directly  or  indirectly, 
its  inclusion  in  the  district  being  solely 
and  only  for  the  purpose  of  deriving  revenue 
therefrom  for  the  special  benefit  of  the 
other  lands  subject  to  be  improved  by  drain- 
age, without  any  benefit  to  plaintiff  or  its 
property  whatever.  The  island  is  the  high- 
est assessed  piece  of  property  in  the  district, 
and  has  never  received  one  single  cent  of 
benefit  from  the  drainage  system  construct- 
ed and  maintained  in  such  district,  and 
never  can  or  will  in  the  future  receive  any 
benefit  whatever  from  the  system. 

PlaintiflT  has  uniformly,  for  the  reasons 
detailed,  refused  to  pay  the  tax,  and  at  no 
time  prior  to  this  year  has  an  effort  been 
made  to  collect  the  same,  plaintiff  having 
based  its  refusal  to  pay  on  its  constitution- 
al rights.  But  at  the  instance  of  the  com- 
missioners of  the  district  the  sheriff  and* 
ex-officio  tax  collector  of  Iberia  parish  has 
demanded  the  tax  on  the  island  and  its  salt 
mine,  and  is  about  to  advertise  the  property 
as  delinquent  for  the  period  of  four  years, 
aggregating  $2,000  with  the  addition  of  the 
penalties  provided  by  law. 

The  inclusion  of  the  island  within  the 
district  is  charged  to  be  an  unconstitution- 
al usurpation  of  authority  and  an  effort  to 
take  plaintiff's  property  without  due  proc- 
ess of  law.  A  like  charge  is  made  as  to 
the  assessment  of  the  tax  and  its  collec- 
tion. 

There  is  no  doubt  that  a  Federal  right 
was  asserted.  Indeed,  plaintiff  was  at  pains, 
it  says,  "not  to  invoke  for  its  protection 
any  provision  of  the  Constitution  and  laws 
of  the  state  of  Louisiana;  not  to  make  any 
attack  upon  any  law  of  the  state  of  Louisi- 


483-486 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oot.  Tbm, 


ana  or  of  any  of  its  subdivisionB."  And, 
further,  the  pleadings  "were  deliberately 
[484]  cast  in  this  form  so  as  to  exclude 
every  question  of  local  or  state  law  and  to 
compel  the  consideration  and  decision  of  the 
Federal  question  only." 

But,  notwithstanding  the  studied  effort 
so  made  and  declared,  defendants  contend 
that  plaintiff  missed  its  purpose  and  that 
a  Federal  question  was  neither  presented 
to  the  courts  below  nor  decided  by  them, 
and  a  motion  is  made  to  dismiss.  It  is 
said  that  "under  the  law  of  Louisiana 
the  action  of  the  legislative  body  (the  po- 
lice jury),  in  the  exercise  of  its  discretion  as 
to  what  property  shall  be  included  in  a 
drainage  district,  will  not  be  inquired  into 
by  the  court,  except  upon  a  special  aver- 
ment of  fraud,  which  is  not  pleaded."  And 
such  decision,  it  is  further  contended,  was 
a  decision  upon  the  state  law,  and  presents 
no  Federal  question,  the  statute  of  the  state 
not  being  attacked. 

We  cannot  concur  in  the  contention.  It 
if  true  the  law  of  the  state  as  written  is 
not  attacked,  but  the  law  as  administered 
and  justified  by  the  supreme  court  of  the 
state  is  attacked,  and  it  is  asserted  to  be 
a  violation  of  the  Constitution  of  the  United 
States.  The  question  presented  is  Feder- 
al and  the  motion  to  dismiss  is  denied.  And 
the  considerations  that  move  a  denial  of 
the  motion  move  a  decision  of  the  merits 
of  the  question. 

The  charge  is  that  plaintiff's  property 
was  included  in  the  district  not  in  the 
exercise  of  '  legal  legislative  discretion,"  not 
that  the  scheme  of  drainage  would  inure 
to  the  benefit  of  the  property,  even  indirect- 
ly, but  with  the  predetermined  "purpose 
of  deriving  revenues  to  the  end  of  granting 
a  special  benefit  to  the  other  lands  subject 
to  be  improved  by  drainage,  without  any 
benefit"  to  plaintiff  "or  its  property  what- 
ever," present  or  prospective. 

Nothing  could  be  more  arbitrary  if  drain- 
age alone  be  regarded.  But  there  may  be 
other  purposes,  defendants  say,  and,  besides, 
that  the  benefit  to  the  property  need  not 
be  direct  or  immediate;  it  may  be  indirect, 
such  as  might  [485]  accrue  by  reason  of  the 
general  benefits  derived  by  the  surrounding 
territory.  But  such  benefit  is  excluded  by 
the  averments,  and  it  certainly  cannot  be 
said  that  the  elevated  land  of  Weeks  island 
could  be  a  receptacle  for  stagnant  water, 
or  would  be  otherwise  a  menace  to  health 
if  not  included  within  the  district,  or  would 
defeat  the  purpose  of  the  law,  which  seems 
to  have  been  the  ground  of  decision  in 
George  v.  Young,  45  La.  Ann.  1232,  14  So. 
137. 

Tlie  case,  therefore,  if  within  the  limita- 
tion of  the  power  of  the  state  as  laid  down 

spe 


in  Houck  ▼.  Little  River  Drainage  Dist. 
supra,  which  cites  Norwood  ▼.  Baker,  172 
U.  S.  269,  43  L.  ed.  443,  10  Sup.  Ct.  Rep. 
187,  and  retains  its  principle.  It  has  not 
the  features  which  determined  French  v. 
Barber  Asphalt  Paving  Co.  181  U.  8.  324, 
45  L.  ed.  879,  21  Sup.  Ct.  Rep.  625,  and 
the  cases  which  have  followed  that  case, 
and  Phillip  Wagner  v.  Leser  [239  U.  S. 
207,  ante,  230,  36  Sup.  Ct  Rep.  66],  decided 
coincidently  with  Houck  v.  Little  River 
Drainage  Dist.  and  cited  in  the  latter. 

It  is  to  be  remembered  that  a  drainage 
district  has  the  special  purpose  of  the  im- 
provement of  particular  property,  and  when 
it  is  so  formed  to  include  property  which  is 
not  and  cannot  be  benefited  directly  or  in- 
directly, including  it  only  that  it  may  pay 
for  the  benefit  to  other  property,  there  is 
an  abuse  of  power  and  an  act  of  confisca- 
tion. Phillip  Wagner  v.  Leser,  supra.  We 
are  not  dealing  with  motives  alone,  but  as 
well  with  their  resultant  action;  we  are 
not  dealing  with  disputable  grounds  of  dis- 
cretion or  disputable  degrees  of  benefit,  but 
with  an  exercise  of  power  determined  by 
considerations  not  of  the  improvement  of 
plaintiff's  property,  but  solely  of  the  im- 
provement of  the  property  of  others, — pow- 
er, therefore,  arbitrarily  exerted,  imposing  a 
burden  without  a  compensating  advantage 
of  any  kind. 

Therefore,  the  judgment  of  the  Supreme 
Court  of  Louisiana  is  reversed  and  the  case 
remanded  for  further  proceedings  not  incon- 
sistent with  this  opinion. 

So  ordered. 


[486]  NORTHWESTERN  LAUNDRY  and 
T.  R.  Hazard,  Appts., 

V. 

CITY  OF  DES  MOINES  et  al. 
(See  S.  C.  Reporter's  ed.  486-496.) 

Appeal  —  from  district  court  —  extend- 
ing review  beyond  Federal  question. 

1.  The  jurisdiction  of  the  Federal  Su- 
preme Court  of  an  appeal  from  a  final  de- 
cree of  a  Federal  district  court  dismissing 
on  the  merits  the  bill  in  a  suit  involving  a 
Federal  question  extends  to  a  determina- 
tion not  only  of  such  question,  but  of  every 
other    question    properly    arising    on    the 

record. 

[For  other  caseR,  see  Appeal  and  Error,  4297- 
4300,  In  Digest  Sup.  Ct.  1908.] 

Note. — On  direct  review  in  Federal  Su- 
preme Court  of  judgments  of  district  or  cir- 
cuit courts — see  notes  to  Gwin  v.  United 
States,  46  L.  ed.  U.  S.  741 ;  and  B.  Altman 
k  Co.  v.  United  States,  56  L.  ed.  U.  S.  804. 

For  a  discussion  of  police  power,  gen- 
>erally — see  notes  to  State  v.  Marshall,   1 

289  U.  S» 


Itli. 


NORTHWESTERN  LAUNDRY  ▼.  DBS  H0INS8. 


Conitttvtioiial  law  —  police  power  — 
legnlaflng  smoke  naisan<*e  —  dae 
pgoea—  of  law  ^  eqaal  protection  of 
the  laws. 

2.  80  far  SB  the  Federal  Constitution 
is  eoncerned,  a  state  may,  by  itself  or 
through  authorised  municipalities,  declare 
the  emission  of  dense  smoke^  in  cities  or 
populous  neighborhoods  to  be  a  nuisance  and 
subject  to  restraint  as  such,  and  the  harsh- 
ness of  such  legislation  or  its  effect  upon 
business  interests,  short  of  a  merely  arbi- 
trary ensctment,  are  not  valid  constitu- 
tional objections,  nor  is  there  any  valid 
Federal  constitutional  objection  in  the  fact 
that  the  regulation  may  require  the  dis- 
continuance of  the  use  of  property,  or 
subject  the  occupant  to  large  expenses  in 
complying  with  the  terms  of  the  'law  or 
ordinance. 

[For  other  cases,  see  Constitntional  Law, 
IV.  a,  5;  IV.  b,  5;  IV.  c,  8,  in  Digest  Sup. 
Ct.  1908.] 

Statutes  —  repeal  and  re-enactment  — 
effect. 

3.  The  express  repeal  by  Iowa  act  of 
March  20,  1913,  of  the  earlier  act  of  April 
15,  1911,  which  granted  identically  the 
same  authority  to  municipalities  to  abate 
the  smoke  nuisance  as  is  conferred  by  the 
repealing  statute,  did  not  have  the  effect 
of  annulling  a  municipal  ordinance  adc^ted 
under  the  sanction  of  the  earlier  law. 
CFor  other  cases,  see  Statntes,  III.  c;  IV.,  in 

Dlirest  Sap.  Ct.  1908.] 

Mnnidpal  corporations  ^  powers  — 
atmtlug  smoke  nuisance. 

4.  Authority  to  abate  the  smoke  nuisance 
conferred  upon  municipalities  by  the  Iowa 
act  of  April  15,  1911,  extends  to  the  adop- 
tion of  an  ordinance  declaring  the  emis- 
sion of  dense  smoke  in  certain  parts  of  the 
city  to  be  a  nuisance,  and  prohibiting  the 
same,  and  delegating  first  to  an  inspector 
and  then  to  a  smoke  abatement  commission 
the  power,  subject  to  judicial  review,  to 
prescribe  the  requirements  in  each  case. 
(For  other  cases,  see  Mnnlclpal  Corporations, 

II.  c.  In  Digest  Sap.  CL  1908.] 

Constitutional  law  —  equal  protection 
of  the  laws  —  atiating  smoke  nui- 
sance. 

5.  The  equal  protection  of  the  laws  is 
not  denied  by  a  municipal  ordinance  for  the 

Srevention  of  the  emission  of  dense  smoke 
1  portions  of  the  city,  where  it  applies  to 
all  coming  within  its  terms,  although  other 
businesses  might  have  been,  but  were  not, 
included. 

(For  other  cases,  see  Constltatlonal  Law,  IV. 
a,  B,  in  Digest  Sap.  Ct.  1908.] 

[No.  121.] 


Argued  and  submitted  December  9,  1916. 
Decided  January  10,  1910. 

APPEAL  from  the  District  Court  of  the 
United  States  for  the  Southern  District 
of  Iowa  to  review  a  decree  dismissing  the 
bill  in  a  suit  to  enjoin  the  enforcement  of 
a  municipal  ordinance  prohibiting  the  emis- 
sion of  dense  smoke  in  portions  of  the  city. 
Affirmed. 
The  facts  are  stated  in  the  opinion. 

Mr.  O.  M.  Brocket  submitted  the  cause 
for  appellants: 

Injunction  lies  to  restrain  enforcement  of 
invalid  municipal  ordinances,  the  execution 
of  which  injuriously  affects  private  rights. 

Deems  v.  Baltimore,  80  Md.  164,  26 
L.R.A.  541,  45  Am.  St  Rep.  339,  30  Atl. 
648;  Mobile  v.  Louisville  &  N.  R.  Co.  84 
Ala.  115,  5  Am.  St.  Rep.  342,  4  So.  106; 
Stevens  v.  St.  Mary's  Training  School,  144 
111.  336,  18  L.R.A.  832,  36  Am.  St.  Rep. 
438,  33  N.  £.  962;  Austin  v.  Austin  City 
Cemetery  Asso.  87  Tex.  330,  47  Am.  St.  Rep. 
114,  28  S.  W.  528;  Bear  v.  Cedar  Rapids, 
147  Iowa,  341,  27  L.R.A.(K.S.)  1150,  126 
N.  W.  324. 

It  is  a  violation  of  the  14th  Amendment 
to  the  Constitution  of  the  United  States  to 
vest  in  any  officer  or  body  of  officers  wholly 
arbitrary  and  unregulated  discretion  to 
grant  or  withhold  licenses  to  hold  and  enjoy 
the  natural  and  lawful  rights  of  property 
and  occupation,  as  is  attempted  by  the  pro- 
visions of  the  ordinance  complained  of. 

Yick  Wo  v.  Hopkins,  118  U.  S.  359,  30 
L.  ed.  221,  6  Sup.  Ct.  Rep.  1064;  Richmond 
V.  Dudley,  129  Ind.  112,  13  L.R.A.  587, 
28  Am.  St.  Rep.  180,  28  N.  E.  312;  Grainger 
V.  Douglass  Park  Jockey  Club,  78  C.  C.  A. 
199,  148  Fed.  513,  9  Ann.  Cas.  997. 

Prior  to  the  enactment  of  Iowa  Laws 
1911,  chap.  37,  it  was  well-settled  law  in 
this  state  that  cities  had  no  power  to  de- 
clare what  should  constitute  nuisances,  or 
prescribe  punishment  for  their  maintenance, 
nor  to  bring  actions  in  court  for  their  abate- 
ment. 

Everett  t.  Council  Bluffs,  46  Iowa,  66; 
Cole  V.  Kegler,  64  Iowa,  59,  19  N.  W.  843; 
Nevada  v.  Hutchins,  59  Iowa,  506,  13  N. 
W.  634;  Knozville  v.  Chicago,  B.  t  Q.  R. 
Co.  83  lowA,  636,  32  Am.  St.  Rep.  321,  50 
N.  W.  61 ;  Chariton  ▼.  Barber,  54  Iowa,  360, 


L.KA.  51;  Re  Gannon,  5  L.R.A.  359;  State 
V.  Schlcmmer,  10  L.R.A.  135;  Ulman  v. 
Baltimore,  11  L.R.A.  224;  Electric  Improv. 
Co.  V.  San  Francisco,  13  L.R.A.  131 ;  and 
Barbier  v.  Connolly,  28  L.  ed.  U.  S.  923. 

As  to  municipal  control  over  smoke  as 
•  public  nuisance — see  notes  to  St.  Louis 
▼•  Edward  Heitzeberg  Packing  &,  Provision 
Co.  39  L.RAl.  551 ;  Atlantic  City  v.  France, 
18  L.R.A.(N.S.)  156  i  and  Rochester  v. 
•0  L.  ed. 


Macauley-Fien  Mill.  Co.  32  L.R.A.(N.S.) 
554. 

As  to  the  validity  of  class  legislation,  gen- 
erally— see  notes  to  State  v.  Goodwill,  6 
L.RJL  621 ;  State  v.  Loomis,  21  L.KA.  789. 

As  to  constitutional  equality  of  privi- 
leges, immunities,  and  protection,  generally 
— see  note  to  Louisville  Safety  Vault  &  T. 
Co.  V.  Louisville  &  N.  R.  Co.  14  UR.A.  579. 


StJPfiEME  COURT  OF  THE  UNITED  STATES. 


Cot.  Tebx, 


37  Am.  B«p.  209,  a  N.  W.  528;  Ottumw«  v. 
Chiim,  75  Iowa,  407,  38  N.  W.  870. 

If  the  repealing  clause  found  in  loifB  ftct 
Hucli  20,  1913,  in  fact  repe^ed  the  act  of 
tb«  34tb  general  aisembly,  the  onl;  ftu- 
thority  claimed  for  the  offensive  ordinancs 
was  thereby  withdrawn  and  the  ordinauee 
was   therefore   nullified. 

Martin  v.  OakalDOM,  —  Iowa,  — ,  BS  N. 
W.  567;  Pritcbard  v.  Savannah  Street  A:  R. 
Resort  R.  Co.  87  Ga.  204,  14  L.R.A.  721, 
13  S.  E.  4S3;  St.  Louis  t.  Kellman,  235  Mo. 
6S7,  139  S.  W.  433. 

Was  Iowa  Laws  1911,  cbap.  37  repealed 
b;  the  act  of  March  20,  ISlSt 

United  States  v.  Muagrave,  160  Fed.  700; 
United  SUtcs  t.  09  Diamonds,  2  L.R.A. 
(N.8.)  185,  72  C.  C.  A.  0,  139  Fed.  961; 
Kunkalman  v.  Gibaon,  171  Ind.  503,  84  N. 
E.  985,  86  N.  E.  850;  Elmer  v.  United 
States,  45  Ct.  CI.  SO;  People  ex  rel,  Higgins 
V.  Frreman,  242  III.  152,  89  N.  E.  067; 
People  ex  rel.  Eaaterday  v.  McCullough, 
143  111.  App.  112;  Rockingbam  County  t. 
Cbase,  75  N.  H.  127,  71  Atl.  634;  Hampton 
T.  Hickey,  88  Ark.  324,  114  S.  W.  707; 
Thornton  v.  State,  5  Ga.  App.  307,  S3  S.  E. 
301;  Ruffalo  v.  Lewis,  102  N.  Y.  193,  84  N. 
E.  809;  Milligan  t.  Arnold,  60  Ind.  App. 
660,  98  N.  E.  822;  Pctitti  t.  SUte,  7  Okla. 
Crim.  Rep.  12,  IZl  Pac.  278;  Murpby  v.  Ut- 
ter, 1B6  U.  S.  9S,  46  L.  ed.  1070,  22  Sup.  Ct. 
Rep.  776;  United  States  t.  Tynen,  11  Wall. 
88,  20  L.  ed.  1S3;  36  Cyc.  1077,  1076;  Childs 
V.  Shower,  18  Iowa,  272;  Allen  v.  Daven- 
port, 107  Iowa,  00,  77  N.  W.  532;  Ogden  v. 
Witherspoon,  3  N.  C.  (2  Hayw.)  2Z7,  Fed. 
Cas.  No.  10,461. 

The  provisions  of  the  ordinance  which 
are  the  basis  for  the  prosecutions  com- 
plained of  are  in  giccbb  of  the  authority 
delegated  by  the  acts  in  question. 

Clarke,  D.  i.  Co.  v.  Davenport,  14  Iowa, 
600;  Tuttle  V.  Church,  63  Fed.  426. 

The  features  of  the  ordinance  here  in- 
volved are  void  for  unreasonablenets. 

Davie  v.  AniU,  73  Iowa,  326,  36  N.  W. 
244;  State  Center  v.  Barenstein,  60  Iowa, 
240,  23  N.  W.  662;  Meyere  v.  Chicago,  R. 
I.  A  P.  R.  Co.  67  Iowa,  655,  42  Am.  Rep. 
60,  10  N.  W.  80«;  Munsell  v.  Carthage,  105 
111.  App.  110;  Everett  v.  Council  Bluffs,  46 
Iowa,  96;  Bush  v.  Dubuque,  60  Iowa,  233, 
28  N.  W.  642;  CenUrviUe  v.  MilUr,  67  Iowa, 
66,  10  N.  W.  203;  St.  Louis  t.  Edward 
Heitzeberg  Packing  ft  PToviaion  Co.  141  Mo. 
376,  39  L.R.A.  651,  64  Am.  St.  Rep.  610, 
42  S.  W.  054. 

The  Iowa  statute,  if  construed  to  dele- 
gate authority  to  enact  ordinancea  contain- 
ing the  provisions  in  queetion,  is  void  be-| 
cause  repugnant  to  both  the  state  and  Fed-I 
eral  Constitutions.  ' 

S»0 


.  Neola  V.  Reichart,  131  Iowa,  402,  100  N. 
W.  5;  Iowa  City  ».  Mclnnemy,  114  Iowa. 
680,  87  N.  W.  408;  Bloomfield  v.  Trimble, 
64  Iowa,  399,  37  Am.  Rep.  212,  6  N.  W. 
686;  Bear  v.  Cedar  Rapids,  147  Iowa,  341, 
27  L.R.A.1N.S.1  1160,  126  N.  W.  324;  SUte 
V.  Benekc,  0  Iowa,  203;  OeebTiek  t.  StaU. 
6  Iowa,  401;  SUte  v.  Weir,  33  Iowa,  134, 
11  Am.  Rep.  115;  Weir  v.  Cram,  37  Iowa, 
649;  Ford  v.  North  Dea  Moines,  80  Iowa, 
626,  46  N.  W.  1031 ;  SUte  ex  rel.  Howe  v. 
Des  Moines,  103  Iowa,  76,  30  L.R.A.  285, 
64  Am.  St.  Rep.  167,  72  N.  W,  639;  Dowling 
V.  Lancashire  Ins.  Co.  92  Wis.  63,  31  L.R.A, 
112.  85  N.  W.  738;  State  v.  King,  37  Iowa, 
462;  Dea  Moines  v.  HilHs,  66  Iowa,  043,  S 
N.  W.  638;  Robert  J.  Boyd  Paving  t  Con- 
tracting Co.  V.  Ward,  2B  C.  C.  A.  687,  56  U. 
S.  App.  730,  S6  Fed.  27;  SUte  ex  r«I.  Child* 
V.  Copeland,  66  Minn.  316,  34  L.R^.  777, 
61  Am.  St.  Rep.  410,  60  N.  W.  27;  SUte 
v.  Tower,  185  Mo.  79,  68  L.R.A.  402,  84 
S.  W.  10;  SUte,  Dcxheiraer,  Prosecutor,  v. 
Orange,  60  N.  J.  L.  Ill,  30  Atl.  706. 

Mr.  Eskil  C.  Carlson  argued  the  cause, 
and,  witl)  Messrs.  H.  W.  Byers  and  Karl 
M.  Steer,  Sled  a  brief  for  appellees: 

A  Federal  court  cannot  iaaue  an  injunc- 
tion to  restrain  judicial  proceedings  in  a 
sUte  court,  except  in  bankruptcy  matters. 

Haines  v.  Carpenter,  01  U.  S.  254,  23  L. 
ed.  346;  Dial  v.  Reynolds,  08  U.  S.  340,  24 
L.  ed.  044;  Re  Sawyer,  124  U.  S.  200,  31  L. 
Dd.  402,  e  Sup.  Ct.  Rep.  482. 

A  court  of  equity  cannot  issue  an  injunc- 
tion to  restrain  the  enforcement  of  a  crim- 
inal ordinance,  at  least,  without  a  showing 
of  Irreparable  injury,  there  being  a  plain, 
speedy,  and  adequate  remedy  at  law. 

Re  Sawyer,  124  U.  S.  200,  31  L.  ed.  402, 
S  Sup.  Ct.  Rep.  482;  Harkrader  v.  Wadley, 
172  U.  S.  148,  43  L.  ed.  398,  10  Sup.  Ct. 
Rep.  110;  FitU  v.  McGhee,  172  U.  S.  SIO. 
43  L.  ed.  635,  19  Sup.  Ct.  Rep.  260;  Davia 
ft  F.  Mfg.  Co.  T.  Los  Angeles,  180  U.  S. 
207,  47  L.  ed.  778,  23  Sup.  Ct.  Rep.  40S; 
Ewing  V.  Webster  City,  103  Iowa,  220,  72 
N.  W.  511;   22  Cyc.  903. 

In  construing  and  interpreting  the  sUtute 
and  ordinance,  and  in  determining  their 
validity  under  the  state  Constitution 
and  sUtutes,  this  court  must  follow  the  de- 
cisions of  the  highest  court  of  the  sUte. 

W.  W.  Cargill  Co.  v.  MinnewiU,  180  U. 
S.  452,  45  L.  ed.  619,  21  Sup.  Ct.  Rep.  423; 
Hasmussen  v.  Idaho,  ISl  U.  S.  108,  45  L. 
ed.  820,  21  Sup.  Ct.  Rep.  504;  Yaeoo  ft  M. 
Valley  R.  Co.  v.  Adams,  IBl  U.  S.  580,  4S 
L.  ed.  1011.  21  Sup.  Ct.  Rep.  720,  180  U. 
S.  1,  45  L.  ed.  395,  21  Sop.  Ct.  Rep.  240; 
Robinson  v.  Belt,  187  U.  8.  41,  47  L.  ed. 
65,  23  Sup.  Ct.  Rep.  16;  Manley  v.  Park, 
187  V.  S.  547,  47  L.  ed.  206,  23  Sup.  Ct. 
SSt  V.  s. 


1915. 


XORTHWE8TEHN  LAUNDRY  t.  D£S  MOINEa 


Rep.  208;   Wliitmier  k  F.  Co.  ▼.  Buffalo, 
U8  Fed.  773;  12  Cyc.  808. 

The  emission  of  densj  smoke  in  populous 
cities  is  a  proper  subject  of  police  regula- 
tion as  a  public  nuisance. 

Moses  V.  United  States,  16  App.  D.  G. 
428,  50  LJLA.  532;  Harmon  v.  Chicago,  110 
111.  400,  51  Am.  Rep.  608; -People  ▼.  Lewis, 
86  Mich.  273,  40  N.  W.  140;  8t.  Paul  v. 
Haugbro,  03  3linn.  50,  66  L.RJk.  441,  106 
Am.  St.  Hep.  427,  100  N.  W.  470,  2  Ann. 
Cas.  580;  State  t.  Tower,  185  Mo.  70,  68 
JjJLJi.  402,  84  8.  W.  10;  Rochester  ▼.  Ma- 
cauley-Fien  MUl.  Co.  100  N.  Y.  207,  32 
L.RJk.(N.S.)  554,  02  N.  E.  641;  McGill  ▼. 
Pintsch  Compressing  Co.  140  Iowa,  429, 
20  L.RJl.(N.S.)  466,  118  N.  W.  786';  Bow- 
ers  ▼.  Indianapolis,  160  Ind.  105,  81  N.  £. 
1097,  13  Ann.  Cas.  1108. 

The  repeal  and  simultaneous  re-enactment 
of  substantially  the  same  provisions  is  to 
be  construed  and  considered  as  a  continua- 
tion of  the  prior  statute,  subject  to  the  mod- 
iflcations,  and  the  binding  force  and  effect 
thereof  is  not  destroyed  or  interrupted 
thereby. 

Hancock  v.  Perry,  78  Iowa,  550,  43  N.  W. 
527;  State  v.  Prouty,  115  Iowa,  657,  84 
N.  W.  670;  Allen  v.  Davenport,  107  Iowa, 
90,  77  N.  W.  532;  Robinson  v.  Ferguson, 
110  Iowa,  325,  03  N.  W.  350. 

The  delegation  to  cities  of  the  power  to 
regulate  the  emission  of  dense  smoke  within 
their  limits  is  proper,  valid,  and  constitu- 
tional. 

State  T.  King,  37  Iowa,  462;  Des  Moines 
Gas  Co.  T.  Des  Moines,  44  Iowa,  505,  24 
Am.  Rep.  756;  Des  Moines  v.  Hillis,  55 
Iowa,  643,  8  N.  W.  638 ;  State  ex  rel.  Howe 
v.  Des  Moines,  103  Iowa,  76,  30  L.RJl.  285, 
64  Am.  St.  Rep.  157,  72  N.  W.  630;  Fair- 
field V.  Shallenberger,  135  Iowa,  615,  113 
N.  W.  450;  11  Cyc,  603. 

Tlie  classification  of  cities  affected  ac- 
cording to  population  is  reasonable,  valid, 
and  constitutional. 

Missouri  v.  Lewis  (Bowman  v.  Lewis) 
101  U.  S.  22,  25  L.  ed.  089;  Hayes  v.  Mis 
souri,  120  U.  S.  68,  30  L.  ed.  578,  7  Sup.  Ct. 
Rep.  350;  Haskel  v.  Burlington,  30  Iowa, 
232;  Owen  v.  Sioux  City,  91  Iowa,  100,  50  N. 
W.  3;  Ulbrecht  v.  Keokuk,  124  Iowa,  1,  07 
N.  ^.  1082;  Eckerson  v.  Des  Moines,  137 
Iowa,  452,  115  N.  W.  177 ;  SUte  v.  Tower, 
185  Mo.  70,  68  L.R.A.  402,  84  S.  W.  10. 

The  statute  is  uniform  in  its  operation, 
within  the  meaning  of  the  Constitution  of 
Iowa,  art.  1,  §  6. 

Haskel  v.  Burlington,  30  Iowa,  232  ^  Owen 
V.  Sioux  City,  91  Iowa,  190,  50  N.  W.  3; 
Fairfield  v.  Shallenberger,  135  Iowa,  615, 
U3  N.  W.  450;  Eckerson  ▼.  Des  Moines, 
137  Iowa,  452,  115  N.  W.  177. 
60  L.  ed. 


The  legislature  did  not  authorise  double 
punishment  for  the  same  offense,  but  it 
could  have  authorized  municipalities  to 
punish  an  offense  also  punishable  under  the 
state  law. 

Bloomfield  v.  Trimble,  54  Iowa,  300,  87 
Am.  R^.  212,  6  N.  W.  586;  Avoca  ▼.  Heller, 
120  Iowa,  227,  105  N.  W.  444;  Blodgett  v. 
McVey,  131  Iowa,  552,  108  N.  W.  230; 
NeoU  ▼.  Reichart,  131  Iowa,  402,  100  N. 
W.  5;  2  DiU.  Mun.  Corp.  §§  630-^33;  Fox 
▼.  Ohio,  5  How.  410,  12  L.  ed.  213;  United 
States  V.  Marigold,  0  How.  560,  13  L.  ed. 
257 ;  Moore  v.  Illinois,  14  How.  13, 14  L.  ed. 
306. 

The  ordinance  is  fairly  within  the  au- 
thority conferred  upon  the  city  by  the  stat- 
ute, under  the  rule  that  the  city  may  exer- 
cise such  powers  as  are  inherent  in  it,  and 
such  as  are  expressly  or  impliedly  conferred 
upon  it,  including  those  necessary  or  inci- 
dental to  the  carrying  into  effect  of  its 
express  powers,  regard  always  being  had 
to  the  intention  of  the  legislature. 

Davenport  v.  Kelly,  7  Iowa,  102;  Mul- 
larky  v.  Cedar  Falls,  10  Iowa,  21;  Dubuque 
V.  Stout,  32  Iowa,  47,  80,  7  Am.  Rep.  171 ; 
State  ex  rel.  Cedar  Rapids  v.  Holcomb,  68 
Iowa,  107,  56  Am.  Rep.  853,  26  N.  W.  33; 
Wood  V.  Farmer,  60  Iowa,  533,  20  N.  W. 
440;  Walnut  v.  Rankin,  70  Iowa,  65,  29 
N.  W.  806;  Taylor  v.  McFadden,  84  Iowa, 
262,  50  N.  W.  1070. 

The  classification  of  plants  in  the  ordi- 
nance is  reasonable  and  valid,  and  there  is 
no  unjust  discrimination. 

Moses  V.  United  States,  16  App.  D.  C. 
428,  50  L.RJl.  532;  Bowers  v.  Indianapolis, 
160  Ind.  105,  81  N.  E.  1007,  13  Ann.  Cas. 
1108;  Harmon  v.  Chicago,  110  111.  400,  51 
Am.  Rep.  698;  People  v.  Lewis,  86  Mich. 
273,  49  N.  W.  140;  SUte  v.  Chicago,  M. 
k  St.  P.  R.  Co.  114  Minn.  122,  33  L.R.A. 
(N.S.)  404,  130  N.  W.  545,  Ann.  Cas.  1912B, 
1030;  State  v.  Tower,  185  Mo.  79,  68  L.R.A. 
402,  84  S.  W.  10;  Barbier  v.  Connolly,  113 
U.  S.  27,  28  L.  ed.  023,  5  Sup.  Ct  Rep.  357. 

The  ordinance  is  not  unreasonable  and 
void  as  vesting  arbitrary  and  unregulated 
discretion  in  the  smoke  inspector  and  smoke 
abatement  commission. 

Hubbell  v.  Higgins,  148  Iowa,  36,  126  N. 
W.  014,  Ann.  Cas.  1012B,  822;  Western  U. 
Teleg.  Co.  v.  Richmond,  224  U.  S.  160,  56 
L.  ed.  710,  32  Sup.  Ct.  Rep.  440;  Davis  v. 
Massachusetts,  167  U.  S.  43,  42  L.  ed.  71, 
17  Sup.  Ct.  Rep.  731;  Gundling  v.  Chicago, 
177  U.  S.  183,  44  L.  ed.  725,  20  Sup.  Ct.  Rep. 
633;  Fischer  v.  St.  Louis,  104  U.  S.  361, 
48  L.  ed.  1018,  24  Sup.  Ct.  Rep.  673. 

The  provision  for  the  use  of  Reigelman's 
smoke  chart  is  reasonable  and  valid. 

Rochester  v.  Macauley-Fien  MilL  Co.  109 

Stt 


489-491 


SUPBSIIE  COURT  OF  THE  UNITED  STATES. 


Cor.  TmKMf 


N.  Y.  207,  32  L.RJL(NJ3.)  654,  92  N.  E. 
641;  Cincinnati  ▼.  Burkhardt,  30  Ohio  C. 
0.  350. 

There  is  no  violation  of  the  constitutional 
proTisions  respecting  exoessiTft  fines  and  un- 
usual punishments. 

Pervear  t.  Massachusetts,  5  WalL  475,  18 
L.  ed.  608;  2  Dill.  Mun.  Corp.  5th  ed.  g  646; 
State  ▼.  Botkin,  71  Iowa,  87,  60  Am.  Rep. 
780,  32  N.  W.  185;  Hooper  ▼.  California,  155 
U.  S.  648,  30  L.  ed.  297,  5  Inters.  Com.  Rep. 
610,  15  Sup.  Ct.  Rep.  207. 

The  ordinance  is  presumed  to  he  reason- 
able and  valid;  the  party  attacking  it  has 
the  burden  of  showing  invalidity,  and  any 
doubt  should  be  resolved  in  favor  of  its 
validity. 

State  ex  rel.  Cedar  Rapids  v.  Holoomb, 
68  Iowa,  107,  56  Am.  Rep.  853,  26  N.  W. 
ZZ;  Snouffer  v.  Cedar  Rapids  &  M.  C.  R 
Co.  118  Iowa,  287,  02  N.  W.  79;  McGuire 
V.  Chicago,  B.  ft  Q.  R  Co.  131  Iowa,  340,  33 
LJl.A.(N.S.)  706,  108  N.  W.  902;  Hubbell 
▼.  Higgins,  148  Iowa,  36,  126  N.  W.  914, 
Ann.  Cas.  1912B,  822;  2  Dill.  Mun.  Corp. 
5th  ed.  §  640;  2  McQuillin,  Mun.  Corp.  g 
974;  21  Am.  k  Eng.  Enc.  Law,  2d  ed.  978. 

An  ordinance  should  not  be  held  unrea- 
sonable or  invalid  as  a  violation  of  the  Con- 
stitution or  otherwise,  unless  such  invalid- 
ity is  clearly  and  unmistakably  made  to  ap- 
pear. 

Fletcher  v.  Peck,  6  Cranch,  87,  3  L.  ed. 
162;  Livingston  County  v.  Darlington,  101 
U.  S.  407,  25  L.  ed.  1015;  Ificol  v.  Ames,  173 
U.  S.  500,  43  L.  ed.  786,  19  Sup.  Ct.  Rep. 
522. 

Mr.  Justice  Day  delivered  the  opinion  of 
the  court: 

The  Northwestern  Laundry  and  T.  R 
Hazard,  its  president,  filed  a  bill  in  the 
district  court  of  the  United  States  for  the 
southern  district  of  Iowa,  against  the  city 
of  Des  Moines,  Iowa;  James  R.  Hanna, 
mayor;  W.  A.  Needham,  commissioner; 
Zell  G.  Roe,  commissioner;  F.  T.  Van  Liew, 
commissioner;  J.  I.  Myerly,  commissioner; 
W.  H.  Byers,  commerce  counsel;  R.  0. 
Brennan,  city  solicitor;  Eskil  C.  Carlson, 
assistant  city  solicitor;  Harry  McNutt, 
smoke  inspector;  and  Paul  Beer,  W.  H. 
Harwood,  L.  Harbach,  B.  S.  Walker,  and 
Geo.  France,  members  smoke  abatement 
commission.  The  purpose  of  the  bill  was  to 
enjoin  the  enforcement  of  an  ordinance  of 
the  city  of  Des  Moines,  effective  September 
6th,  1011,  which  provided  that  the  emission 
of  dense  smoke  in  portions  [400]  of  that 
city  should  be  a  public  nuisance  and  pro- 
hibited the  same.  To  that  end  the  ordinance 
authorized  the  appointment  of  a  smoke  in- 
spector, and  otherwise  dealt  with  the  sub-  i 
Jeet  with  a  view  to  effecting  the  prohibited 


purpose  declared.  The  case  was  heard  upon 
the  bill  and  a  motion  practically  *«»i^iit«ng 
to  a  demurrer. 

The  bill  and  amended  bill  are  very 
lengthy.  For  our  purposes^  their  allega- 
tions and  the  requirements  of  the  ordinance 
sufliciently  appear  in  what  is  said  in  the 
discussion  and  disposition  of  the  case. 

The  protection  of  the  due  process  and 
equal  protection  clauses  of  the  14th  Amend- 
ment is  invoked.  It  is  insisted  that  the 
ordinance  is  void  because  its  standard  of 
efficiency  requires  the  remodeling  of  practi- 
cally all  furnaces  which  were  in  existence 
at  the  time  of  its  adoption;  it  forbids  re- 
modeling or  substituted  equipment  without 
a  prescribed  license;  it  forbids  new  con- 
struction without  such  license;  it  fails  to 
specify  approved  equipment,  and  instead 
delegates,  first  to  the  inspector,  and  second, 
to  the  smoke  abatement  commission,  the 
unregulated  discretion  to  arbitrarily  pre- 
scribe the  requirements  in  each  case,  with- 
out reference  to  any  other  as  to  the  required 
character  of  smoke  prevention  device,  thus 
making  the  right  of  complainants  and  their 
class  to  own  and  operate  such  furnaces  sub- 
ject to  the  pleasure  of  the  inspector  and 
commission.  It  is  averred  that  the  ordi- 
nance exceeds  the  authority  delegated  to  the 
city  by  the  legislature;  that  it  attempts  to 
substitute  its  own  definition  of  the  crime 
and  nuisance  committed  by  the  emission  of 
dense  smoke  for  that  enacted  by  the  legis- 
lature in  the  act  under  the  pretended  au- 
thority of  which  the  ordinance  is  adopted; 
that  it  is  unreasonable  and  tyrannical  and 
exceeds  the  authority  delegated  for  want 
of  uniformity  as  to  the  whole  city  and 
because  the  exceptions  specified  are  not 
natural  and  just.  It  is  alleged  that  the 
ordinance  prescribes  arbitrary  tests  of  de- 
grees of  density,  and  enables  the  inspector 
to  present  irrebuttable  [401]  proof  of  vio- 
lation; that  it  provides  for  uulimited  prose- 
cutions and  successive  fines,  constituting  ex- 
cessive punishment  in  the  aggregate,  with- 
out adequate  remedy  or  relief,  and  under- 
takes to  deprive  the  courts  of  power  to  de- 
termine whether  the  nuisances  have  in  fact 
been  committed  or  maintained. 

A  motion  to  dismiss  the  bill  covered  three 
grounds:  First,  that  the  bill  did  not  state 
any  matter  of  equity  entitling  complain- 
ants to  the  relief  prayed,  nor  were  the  facta, 
as  stated  in  the  bill,  sufficient  to  entitle 
complainants  to  any  relief  against  defend- 
ants; second,  that  the  bill  showed  upon  its 
face  that  the  complainants  have  a  plain, 
speedy,  and  adequate  remedy  at  law;  and 
third,  as  it  appeared  on  the  face  of  the  bill 
that  the  complainants  were  all  residents 
of  the  state  of  Iowa,  and  the  relief  demand- 
ed was  against  an  ordinance  of  the  defend- 

ast  17.  8. 


1»U.                        NOBTHWESTERN  LAUKDKT  t.  DES  MOINEB.  401-4M 

ant  citf ,  the  court  ««■  without  jurisdic- 1  BUch  appears  to  be  the  law  In  Iowa.  Mo- 
tion. Tho  court  auitaiiied  the  motion,  and  Gill  v.  Pintsch  Compressing  Co.  140  Iowa, 
«otered  a  Itnal  decree  dismiaaing  the  biU  429,  20  I>B^,(N.S.)  468,  118  N,  W.  788. 
»ith  prejudice.  There  was  no  attempt  to  it  is  contended  that  the  ordinance  is  in 
make  a  separate  iHue  on  the  question  of  excess  of  the  legialatiTB  authority  conferred 
jurisdiction,  or  to  take  an  appeal  upon  by  tho  state  of  Iowa  upon  the  city  of  Des 
that  question  alone  to  this  court.  Judicial  Moines.  This  question  does  not  teem  to 
Code,  g  238,  36  SUt.  at  L.  1157,  chap.  231,  have  been  directly  passed  upon  by  the  sn- 
Comp.  SUt.  1013,  I  1215.  preme  court  of  Iowa. 

The  decree  waa  a  general  one  on  the  mer-  n,*  aUtute  of  Iowa  enacted  April  16th, 
it*,  and,  as  the  bill  charged  a  violation  of  iQH,  before  the  passage  of  thfa  ordinance, 
the  14th  Amendment  not  so  frivolous  as  to  ia  as  follows: 
fail   to  give   original   juriadiction,   the   ap- 
peal to  thia  court  from  the  final  decree  An  Act  Declaring  the  Emission  of  Smoke 
brings  the  whole  case  here.    Holder  v.Ault-  within   the  Corporate  UmiU  of  Certain 


,  Jl.  A  Co.  16S  U.  S.  Bl,  88,  42  L.  ed. 

fi«0,   671,   IB   Sup.   Ct.   Bep.   26S}   Field  v. 

Barber  Asphalt  Paving  Co.   194  U.  B.  61B, 

620,  48  L.  ed.  1142,  nS2,  24  Sup.  Ct.  Bep. 

784;  Bois«  Artesian  Hot  k  Cold  WaUr  Co. 

V.  Boia«  City,  230  U.  S,  S4,  SI,  67  L.  ed. 
1400,  1406,  33  Sup.  Ct.  Bep.  997. 

We  are  not  furnished  with  any  reference 
to  an  Iowa  statute  giving  an  adequate  rem- 
edy at  law,  and  we  find  none  auch.  We 
hne  therefore  to  deal  with  the  questions, 
Ptdcral  and  state,  made  npon  the  face  of 
the  bill. 

So  far  as  the  Federal  Constitution 
eaanrned,  we  have  no  doubt  the  state  m 
I?  itself,  or  through  authorised  muuicipni- 
ilin,  declare  the  emission  of  dense  smoke 
in  [4BS]  cities  or  populous  neighborhoods 
a  nuisance  and  subject  to  restraint  as  auch ; 
sad  that  the  harahneas  of  such  l^slatii 


Cities  to  be  a  Public  Nuisance,  and  Con* 
f erring  upon  Such  Cities  Additional 
Powers  for  the  Abatement  of  Buch  Nnl- 


Be  it  enacted  by  the  General  Assembly 
of  the  State  of  Iowa: 

Section     I.     Declared    a    nuisance. — The 

1  of  dense  smoke  within  the  corpo- 

mits  of  any  of  the  [493]  cities  of  thia 

state  now  or  hereafter  having  a  population 

of  aixty-five  thousand   {65,000)    inhabitants 

ver,   including  cities  acting  under   the 

commission   plan   of   government  is  hereby 

declared  to  be  a  public  nuisance. 

Section  2.  Abatement. — Every  such  ei^ 
is  hereby  empowered  to  provide  by  ordi- 
nance for  the  abatement  of  such  nuisance 
litber   by   fine   or   imprisonment  or   by   ac- 

___^  „_,„„,.„  „.  _u^u  „  .outiiuu     *'**"  '"  district  court  of  the  county  in 

witai^ert'uMnb^^Bi^VVwMU%hort"of  ''*''''^^  ""=*'  "^'  '•  located,  or  by  both,  auch 
a  merely  arbitrary  enactment,  are  not  valid  ''"™  *°  ^  proaecuted  in  the  name  of  tho 
fonstitutional  objections.  Nor  is  there  ■*"?■  ^'^  ""?  "'"^  *>?  ordinance  prov.d* 
7  valid   Federal  constitutional  objection    *n    necessary    rules    and    regulation,    for 

-     -  smoke   inspection   and   the   abatement   and 

prevention  of  the  smoke  nuisance.    34  Lawa 
of  Iowa,  chap.  37,  p.  27. 

The  ordinance  in  question  was  passed 
on  the  eth  day  of  September,  ISll,  and  be- 
came effective,  as  we  have  said,  on  that 
date.     The  city  of  Des  Moines  Is  within 

L.  ed.  1204,  36  Sup"."ct.' E™."678rHada''c'heck    ""  t«™"  "'  *'■  «»■    On  March  20th,  1013, 

v.  Sebaatian,  decided  December  20th,  1916    J*"*  "eg'"!"'"'*  !«">»''  Mother  law,  as  fol- 

[239  U.  S.  304,  ante,  348,  36  Sup.  Ct.  Bep.    ''"'•  = 

143]. 
That  snch   emiaaion   of   smoke   is   within    ^°  ^"^  Declaring  the  Emission  of  Smoke 

the  regulatory  power  of  the  state  has  been       Z}^^'°  0>e , Corporate  L.mita  of  Certain 


in  the  fait  that  the  regulation  may  require 
the  disconUnuance  of  the  use  of  property, 
or  subject  the  occupant  to  large  expense  in 
complying  witb  the  terms  ol  the  law  or 
ordinance.  Becent  cases  in  this  court  are 
Beinman  v.  Little  Bock,  237  U.  S.  171,  SB 
J.,  cd.  900,  33  Sup.  Ct.  Bep.  611;  Chicago 
A  A.  B.  Co.  T.  Tranbcrger,  238  U.  S.  67,   "" 


«ften  affirmed  by  state  courts.     Harmon  i 

Chicago,   110   lU.    400,   SI    Am.   Bep.   608; 

Bowers  v.   Indianapolis,   169   Ind.    105,   81 

N.   E.  1097,  13  Ann.  Cas.  1198;   People  v. 

Lewis,  SB  Mich.  273,  49  N.  W.   140;   St. 

Paul  T.  Haugbro,  93  Minn.   69,  66   L.B.A. 

441,  10«  Am.  St  Bep.  427,  100  N.  W.  470, 

2  Ann.  Cas.  580;   State  v.  Tower,  185  Mo. 

TO,  88  LB.A.  402,  84  S.  W.  10;   Bocheater    of  the  State  of  loWa: 

T.   Haeanley-Fien  Mill  Co.   190  N.  Y.  207,        Saction     1.  Declared 

32  L.B.A.(N.B.)    664,  92  N.  E.  641.     And    emission  of  dense  smoke  within  the  cqt^<v- 

«0  Ii.  «d.  2S  4«V 


Cities,  Including  Cities  Acting  under 
Special  Charter,  to  be  a  Public  Nuisance 
and  Conferring  upon  Such  Cities  Addi- 
tional Powers  for  the  Abatement  of  Such 
Nuisances  and  Bepcaling  Chapter  Thirty- 
seven  (37)  of  the  Laws  of  the  Thirty- 
fourth  General  Assembly.    .    .    , 


Be  it  enacted  by  the  General  Assembly 


403-496 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Teem, 


rate  limits  of  the  cities  of  the  state,  includ- 
ing cities  acting  under  commission  form  of 
government,  now  or  hereafter  having  a 
population  of  thirty  thousand  or  over  and 
in  cities  acting  under  special  charter  or 
hereafter  having  a  population  of  sixteen 
thousand  or  over,  is  hereby  declared  a 
nuisance. 

Section  2.  Abatement. — Every  such  city 
is  hereby  empowered  to  provide  by  ordi- 
nance for  the  abatement  of  [404]  such  nui- 
sance either  by  fine  or  imprisonment,  or  by 
action  in  the  district  court  of  the  county  in 
which  such  city  is  located,  or  by  both;  such 
action  to  be  prosecuted  in  the  name  of  the 
city.  They  may  also  by  ordinance  provide 
all  necessary  rules  and  regulations  for 
smoke  inspection  and  the  abatement  and 
prevention  of  the  smoke  nuisance. 

Section  3.  Repeal. — That  chapter  thirty- 
seven  (37)  of  the  laws  of  the  thirty -fourth 
general  assembly  be  and  the  same  is  here- 
by repealed.  35  Laws  of  Iowa,  p.  43. 

This  statute  likewise  includes  the  city  of 
Des  Moines. 

The  former  statute  was  repealed  by  the 
new  one.  The  effect  of  this  repeal  upon 
the  validity  of  the  ordinance  is  a  state 
question,  and  as  we  understand  the  Iowa 
decisions,  the  authority  of  the  ordinance 
here  in  question  remained  unimpaired.  The 
statutory  change  did  not  have  the  effect 
to  annul  the  ordinance  passed  under  the 
former  identical  grant  of  authority.  Allen 
V.  Davenport,  107  Iowa,  90,  77  N.  W.  532; 
State  V.  Prouty,  116  Iowa,  657,  84  N.  W. 
670. 

It  is  further  contended  that,  conceding 
the  statutory  authority,  the  ordinance  is 
in  excess  of  the  legislative  grant.  This 
question  does  not  seem  to  have  been  passed 
upon  specifically  in  any  Iowa  case  called 
to  our  attention.  The  statute,  after  de- 
claring the  emission  of  dense  smoke  with- 
in the  corporate  limits  of  such  cities  as  Des 
Moines  to  be  a  nuisance,  authorizes  the 
city  to  provide  by  ordinance  for  the  abate- 
ment of  such  nuisance  b}  fine  or  imprison- 
ment or  by  action  in  the  district  court  of 
the  county,  or  both,  such  action  to  be  prose- 
cuted in  the  name  of  the  city;  and,  further- 
more, municipalities  are  authorized  to  pro- 
vide by  ordinance  all  necessary  rules  and 
regulations  for  smoke  inspection  and  the 
abatement  or  prevention  of  the  smoke  nui- 
sance. The  smoke  inspector  must  be 
qualified  by  training  and  experience  to 
understand  the  theory  and  practice  of  smoke 
inspection.  He  has  the  benefit  of  coun- 
sel of  the  smoke  abatement  commission, 
[405]  consisting  of  five  members  to  be  ap- 
pointed by  the  city  council,  at  least  one  of 
whom  must  have  had  experience  in  the 
40S 


installation  and  conduct  of  power  and 
heating  plants.  From  the  smoke  inspec- 
tor there  is  an  appeal  to  the  smoke 
abatement  commission  in  case  of  dis- 
agreement over  plans  for  newly  con- 
structed plants  or  reconstruction  of  old 
ones.  This  grant  of  authority  would  seem 
to  be  sufficient  to  authorize  the  passage 
of  an  ordinance  of  a  reasonable  nature,  such 
as  we  believe  the  one  now  under  considera- 
tion to  be.  It  delegates  authority  to  carry 
out  details  to  boards  of  local  commis- 
sioners. That  such  rules  and  regulations 
are  valid,  subject  as  they  are  to  final  con- 
sideration in  the  courts,  to  determine 
whether  they  are  reasonably  adapted  to  ac- 
complish the  purpose  of  a  statute,  has 
been  frequently  held.  2  Dill.  Mun.  Corp. 
5th  ed.  §  574.  We  find  nothing  in  the  Iowa 
cases  to  indicate  that  the  supreme  court  of 
that  state  has  laid  down  any  different  rule 
upon  this  question.  That  the  courts  of 
Iowa  may  be  resorted  to  in  case  of  an  abuse 
of  the  powers  vested  in  the  inspector  and 
commission  seems  to  follow  from  the  deci- 
sion of  the  supreme  court  of  that  state  in 
Hubbell  V.  Higgins,  148  Iowa,  86,  126  K. 
W.  914,  Ann.  Cas.  1912B,  822. 

As  to  the  attack  upon  the  ordinance  be- 
cause of  arbitrary  classification,  this  ques- 
tion has  been  so  often  discussed  that  noth- 
ing further  need  be  said.  The  ordinance  ap- 
plies equally  to  all  coming  within  its 
terms,  and  the  fact  that  other  businesses 
might  have  been  included  does  not  make 
such  arbitrary  classification  as  annuls  the 
legislation.  Nor  does  it  make  classifica- 
tion illegal  because  certain  cities  are  in- 
cluded and  others  omitted  in  the  statute. 
Eckcrson  v.  Des  Moines,  137  Iowa,  452,  115 
N.  W.  177. 

We  think  the  District  Court  was  right 
in  dismissing  the  bill  upon  its  merits. 

Affirmed. 


[406]  SOUTHERN  RAILWAY  COMPANY,. 

Plff.  in  Err., 

V. 

W.  L.  LLOYD. 
(See  S.  C.  Reporter's  ed.  496-502.) 

Removal    of    causes  —  separable    con* 
troversy  —  sufficiency  of  petition. 

1.  Allegations  in  the  petition  for  the 
removal  of  an  alleged  separable  controversy 
to  a  Federal  court  for  diverse  citizenship 
are  not  sufficient  where  they  amount  sim- 

NoTE. — As  to  removal  of  causes  in  cases 
of  separable  controversy — see  notes  to  Mil- 
ler v!  Clifford,  5  L.R.A.(N.S.)  50;  Sloane 
V.  Anderson,  29  L.  ed.  U.  S.  899;  Butler  v. 
National  Home,  36  L.  ed.  U.  S.  346;  Tbr- 

ast  u.  s. 


191S. 


SOUTHERN  R.  CO.  v.  LLOYD. 


ply  to  a  traverse  of  the  factt  alleged  in 
the  plaintifiTs  petition,  and  in  that  way  un- 
dertake to  try  the  merits  of  a  cause  of 
action  good  upon  its  face. 
[For  other  cases,  see  RemoTsl  of  Csnses,  IV. 
b;  IV.  c;  VL  d,  in  Digest  Sup.  Ct.  llK>8.j 

Removal  of  canses  —  separable  con- 
iroTersy  ^  nonsuit  as  to  resident  de- 
fendant. 

2.  An  order  of  nonsuit  as.  to  the  resi- 
dent -corporation  which  was  joined  as  co- 
defendant  with  a  nonresident  corporation 
did  not  convert  the  action  into  a  separable 
controversy  for  the  purpose  of  removal  to 
a  Federal  court,  where  plaintiff  excepted  to 
such  order,  with  the  right  of  review  in  the 
highest  state  court. 

[Foi  other  cases,  see  Removal  of  Causes,  IV. 
c,  in  Digest  Sup.  Ct.  1908.] 

Removal  of  causes  —  diverse  citlien* 

ship  ^  separable  controversy  ^  salt 

brought    nnder    Federal    employers' 

liability  act. 

3.  Jhe  prohibition  of  the  Judicial  Code, 
§  28,  against  the  removal  to  a  Federal 
court  of  any  case  arising  under  the  Fed- 
eral employers'  liability  act  or  any  amend- 
ment thereto,  prevents  the  removal  for  di- 
verse citizenship  as  a  separable  controversy 
of  a  nit  brought  under  that  statute  in 
which  a  resident  and  nonresident  corpora- 
tion were  made  defendants  upon  a  removal 
petition  which  alleges  fraudulent  joinder, 
and  avers  that  the  injury  did  not  happen 
in  interstate  commerce. 

[For  other  cases,  see  Removal  of  Caaseii.  IV. 
b;  IV.  c;  VI.  d.  In  Digest  Sup.  Ct.  1008.] 

Error  to  state  court  —  scope  of  review 
—  question  of  local  practice. 

4.  A  ruling  of  the  highest  state  court 
in  an  action  brought  under  the  Federal 
employers'  liability  act  that  no  issue  as  to 
assumption  of  risk  was  made  or  submitted 
to  the  trial  court,  and  that  therefore  under 
the  state  practice  no  question  concerning 
that  subject  was  presented  on  appeal,  de- 
nies no  right  of  a  Federal  character  which 
may  be  reviewed  in  the  Federal  Supreme 
Court  on  writ  of  error  to  the  state  court. 
[For  other  cases,  see  Appeal  and  Error.  2200- 

2226,  io  Digest  Sup.  Ct.  1008.] 

[No.  206.] 

Argued  November  20,  1015.     Decided  Jan- 
uary 10,  1016. 


IN  ERROR  to  the  Supreme  Court  of  the 
State  of  North  Carolina  to  review  a 
judgment  which,  on  a  second  appeal,  af- 
firmed a  judgment  of  the  Superior  Court 
of  Guilford  County,  in  that  state,  in  favor 
of  plaintiff  in  an  action  under  the  Federal 
employers'  liability  act.    Affirmed. 

See  same  case  below  on  first  appeal,  162 
N.  C.  485,  78  S.  £.  480;  second  appeal,  166 
N.  C.  24.  81  S.  E.  1003,  7  N.  C.  C.  A.  520. 

The  facta  are  stated  in  the  opinion. 

Mr.  John  M.  Wilson  argued  the  cause, 
and,  with  Messrs.  L.  E.  Jeffries  and  H. 
O'B.  Cooper,  filed  a  brief  for  plaintiff  in 
error: 

The  North  Carolina  Railroad  Company 
was  fraudulently  joined  as  defendant. 

Chesapeake  k  0.  R.  Co.  v.  Cockrell,  232 
U.  8.  146,  68  L.  ed.  544,  34  Sup.  Ct.  Rep. 
278;  Wecker  v.  National  Enameling  & 
Stamping  Co.  204  U.  S.  176,  51  L.  ed.  430, 
27  Sup.  Ct.  Rep.  184,  0  Ann.  Cas.  757; 
Stone  V.  South  Carolina,  117  U.  S.  430,  20 
L.  ed.  062,  6  Sup.  Ct.  Rep.  700;  Rea  v. 
Standard  Mirror  Co.  158  N.  C.  28,  73  S<  £. 
116;  Lloyd  v.  North  Carolina  R.  Co.  162 
N.  C.  485,  78  S.  E.  480. 

The  state  court  had  no  authority  to  ex- 
amine questions  of  fact  on  a  petition  to 
remove. 

Chesapeake  ft  0.  R.  Co.  v.  Cockrell,  232 
U.  S.  146,  58  L.  ed.  544,  34  Sup.  Ct.  Rep. 
278;  Rea  v.  Standard  Mirror  Co.  158  N.'C. 
28,  73  S.  E.  116. 

Making  a  defense  in  the  state  court  was 
no  waiver  of  the  right  to  remove. 

Powers  V.  Chesapeake  ft  0.  R.  Co.  160 
U.  S.  04,  42  L.  ed.  673,  18  Sup.  Ct.  Rep. 
264;  Removal  Cases,  100  U.  S.  457,  25  L. 
ed.  503;  Home  L.  Ins.  Co.  v.  Dunn,  10  Wall. 
214,  22  L.  ed.  68;  Baltimore  ft  (X  R.  Co.  v. 
Koontz,  104  U.  S.  5,  26  L.  ed.  643;  Stone  v. 
South  Carolina,  117  U.  S.  430,  20  L.  ed. 
062,  6  Sup.  Ct.  Rep.  700. 

Was  the  Federal  employers'  liability  act 
applicable? 

Illinois  C.  R.  Co.  v.  Behrens,  233  U.  8. 
473,  58  L.  ed.  1051,  34  Sup.  Ct.  Rep.  646, 
Ann.  Cas.  1014C,  163;  Ruck  v.  Chicago,  M. 


ronce  v.  Shedd,  36  L.  ed.  U.  S.  528;  and 
Merchants'  Cotton  Press  ft  S.  Co.  v.  Insur- 
ance Co.  of  N.  A.  38  L.  ed.  U.  S.  196. 

On  removal  of  causes  in  cases  of  diverse 
citizenship — see  notes  to  Whelan  v.  New 
York,  L.  E.  ft  W.  R.  Co.  1  L.R.A.  65:  Sed- 
don  V.  Virginia,  T.  ft  C.  Steel  ft  I.  Co.  1 
L.RJ^.  108;  Huskins  v.  Cincinnati,  N.  0. 
ft  T.  P.  R.  Co.  5  L.RJI.  545;  Bierbower  v. 
Miller,  0  L.R.A.  228;  Brodhead  v.  Shoe- 
maker, 11  L.R.A.  567;  Meyer  v.  Delaware 
R.  Constr.  Co.  25  L.  ed.  U.  S.  503;  Butler 
V.  National  Home,  36  L.  ed.  U.  S.  346;  and 
Torrence  v.  Shedd,  36  L.  ed.  U.  S.  528. 

On  the  constitutionality,  application,  and 
«0  I«.  ed. 


effect  of  the  Federal  employers'  liability  act 
— see  notes  to  Lamphere  v.  Oregon  R.  ft 
Nav.  Co.  47  L.R.A.  (N.S.)38;  and  Seaboard 
Air  Line  R.  Co.  v.  Horton,  L.R.A.1015C,  47. 

On  the  general  subject  of  writs  of  error 
from  the  United  States  Supreme  Court  to 
state  courts — see  notes  to  Martin  v.  Hunter, 
4  L.  ed.  U.  S.  07 ;  Hamblin  v.  Western  Land 
Co.  37  L.  ed.  U.  S.  267;  Ro  Buchanan,  30 
L.  ed.  U.  S.  884;  and  Kipley  v.  Illinois,  42 
L.  ed.  U.  S.  998. 

On  what  questions  the  Federal  Supreme 
Court  will  consider  when  reviewing  the 
judgments  of  state  courts — see  note  to  Mis- 
souri ex  rel.  Hill  v.  Dockery,  63  L.R.A.  571. 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tekm, 


&  St.  P.  R.  Ck).  163  WiB.  158^  140  N.  W. 
1074;  Gray  v.  Chicago  &  N.  W.  R.  Co.  163 
Wis.  637,  142  N.  W.  505;  La  Casae  ▼.  New 
Orleans,  T.  k  M.  R.  Co.  135  La.  129,  64 
So.  1012;  Wright  v.  Chicago,  R.  I.  k  P.  R. 
Co.  94  Neb.  317,  143  N.  W.  220;  Parsons 
V.  Delaware  &  H.  Co.  167  App.  Div.  636, 
153  N.  Y.  Supp.  179 ;  Rosney  v.  Erie  R.  Co. 
68  C.  C.  A.  155,  135  Fed.  311;  Chicago  & 
N.  W.  R.  Co.  V,  United  States,  21  L.R.A. 
(N.S.)  690,  93  C.  C.  A.  450,  168  Fed.  236; 
Siegel  V.  New  York  C.  &  H.  R.  R.  Co.  178 
Fed.  873;  United  States  v.  Rio  Grande 
Western  R.  Co.  98  C.  C.  A.  293,  174  Fed. 
399. 

There  was  not  sufficient  evidence 'of  neg- 
ligence to  support  a  verdict  under  the  Fed- 
eral employers'  liability  act. 

Seaboard  Air  Line  R.  Co.  v.  Padgett,  236 
U.  S.  668,  69  L.  ed.  777,  35  Sup.  Ct.  Rep. 
48L 

Ordinary  risks  are  presumed  to  have  been 
undertaken  by  a  servant. 

I^batt,  Mast  &  S.  1167,  1171,  1173. 

Assumption  of  risk  incident  to  service  is 
not  really  assumption  of  risk,  but  is  merely 
the  absence  of  negligence,  and  consequently 
is  not  necessary  to  be  pleaded  as  a  defense. 

Labatt.  Mast.  &  S.  1186a;  New  York, 
N.  H.  &  H.  R.  Co.  V.  Vizvari,  L.R.A.1916C, 
9,  126  C.  C.  A.  632,  210  Fed.  118. 

The  rule  of  ordinary  care  obtains  in  the 
Federal  courts,  and  the  plaintiff  assumes 
the  risk  incident  to  the  service. 

Pattonv.  Texas  &  P.  R.  Co.  179  U.  S.  668, 
46  L.  ed.  361,  21  Sup.  Ct.  Rep.  276;  North- 
ern P.  R.  Co.  V.  Peterson,  162  U.  S.  346, 
40  L.  ed.  994,  16  Sup.  Ct.  Rep.  843;  Hough 
V.  Texas  &  P.  R.  Co.  100  U.  S.  213,  25  L. 
ed.  612;  Southern  P.  Co.  v.  Seley,  162  U. 
S.  146,  38  L.  ed.  391,  14  Suf.  Ct.  Rep.  630; 
See  also  White  v.  Thomasville  Light  k  P. 
Co.  161  N.  C.  368,  66  S.  E.  210;  Dartmouth 
Spinning  Co.  v.  Achord,  84  Ga.  14,  6  L.R.A. 
190,  10  S.  E.  449;  Lane  v.  North  Carolina 
R.  Co,  154  N.  C.  96,  69  S.  E.  780. 

The  issue  of  contributory  negligence 
should  have  been  submitted. 

Norfolk  Southern  R.  Co.  v.  Ferebee,  238 
U.  S.  269,  69  L.  ed.  1303,  36  Sup.  Ct.  Rep. 
782. 

If  the  plaintiff  was  not  engaged  in  inter- 
state commerce,  the  suit  should  have  been 
dismissed. 

Second  Employers'  Liability  Cases  (Mon- 
dou  V.  New  York,  N.  H.  ft  H.  R.  Co.)  223 
U.  S.  1,  66  L.  ed.  327,  38  L.R.A.(N.S.)  44, 
32  Sup.  Ct.  Rep.  169,  1  N.  C.  C.  A.  876; 
Seaboard  Air  Line  R.  Co.  v.  Horton,  233  U. 
S.  492,  68  L.  ed.  1062,  L.R.A.1916C,  1,  34 
Sup.  Ct.  Rep.  636,  Ann.  Cas.  1916B,  476, 
9  N.  C.  C.  A.  834;  Delaware,  L.  k  W.  R. 
Co.  ▼.  Yurkonis,  238  U.  S.  439,  69  L.  ed. 
Jd97,  36  Sup.  Ct.  Rep.  902. 


Mr.  Aubrey  L.  Brooks  argued  the  cause 
and  filed  a  brief  for  defendant  in  error: 

The  North  Carolina  Railroad  Company, 
as  lessor  to  the  Southern  Railway  Company, 
is  engaged  in  interstate  commerce. 

North  Carolina  R.  Co.  v.  Zachary,  232  U. 
S.  248,  68  L.  ed.  693,  34  Sup.  Ct.  Rep.  305, 
Ann.  Cas.  1914C,  159,  9  N.  C.  C.  A.  109. 

An  action  may  be  maintained  against  it 
for  such  negligence  as  is  shown  in  this 
record. 

Ibid.;  Logan  v.  North  Carolina  R.  Co. 
116  N.  C.  941,  21  S.  E.  959. 

Suit  was  maintainable  against  the  South- 
ern Railway  Company  and  the  North  Caro- 
lina Railroad  Company  as  joint  tort  feasors. 

Torrence  v.  Shedd,  144  U.  S.  627,  36  L. 
ed.  628,  12  Sup.  Ct.  Rep.  726. 

The  case  was  not  removable,  the  joinder 
of  the  resident  defendant  being  the  exercise 
of  a  lawful  right. 

Chesapeake  k  0.  R.  Co.  v.  Cockrell,  232 
U.  S.  146,  68  L.  ed.  644,  34  Sup.  Ct.  Rep. 
278. 

The  act  under  which  the  suit  was  brought 
expressly  conferred  jurisdiction  upon  the 
state  court  to  try  and  determine  the  issue 
involved,  whether  the  suit  had  been  brought 
against  the  North  Carolina  Railroad  Com- 
pany or  the  Southern  Railway  Company,  or 
both  jointly. 

Kansas  City  Southern  R.  Co.  v.  Leslie, 
238  U.  S.  699,  69  L.  ed.  1478,  36  Sup.  Ct. 
Rep.  844. 

The  defendant  in  error  at  the  time  of 
the  injury  was  engaged  in  interstate  com- 
merce. 

North  Carolina  R.  Co.  v.  Zachary,  232  U. 
S.  248,  68  L.  ed.  691,  34  Sup.  Ct.  Rep.  306, 
Ann.  Cas.  1914C,  169,  9  N.  C.  C.  A.  109; 
Pedersen  v.  Delaware,  L.  ft  W.  R.  Co.  229 
U.  S.  146,  57  L,  ed.  1125,  33  Sup.  Ct.  Rep. 
648;  Ann.  Cas.  1914C,  163,  3  N.  C.  C.  A. 
779;  St.  Louis,  S.  F.  k  T.  R.  Co.  v.  Scale, 
229  U.  S.  166,  67  L.  ed.  1129,  33  Sup.  Ct. 
Rep.  661,  Ann.  Cas.  1914C,  166;  Sears  v. 
Atlantic  Coast  Line  R.  Co.  169  N.  C.  446, 
86  S.  E.  176. 

The  defendant  did  not  plead  assumption 
of  risk,  nor  was  any  issue  relating  thereto 
tendered  by  it,  or  submitted  by  the  court. 
This  is  necessary,  under  our  practice  and 
procedure,  in  order  to  raise  that  question, 
as  we  regard  it  as  a  distinct  defense,  which 
must  be  pleaded  and  an  issue  thereon  ten- 
dered by  the  defendant  or  submitted  by  the 
court,  of  its  motion. 

Dorsett  v.  Clement-Ross  Mfg.  Co.  131  N. 
C.  264,  42  S.  £.  612 ;  Eplee  v.  Southern  R. 
Co.  166  N.  C.  293,  71  S.  £.  326;  Bolden  ▼. 
Southern  R.  Co.  123  N.  Q,  614,  31  S.  E. 
851;  West  v.*  Brevard  Tanning  Co.  164  N. 
C.  44,  69  S.  £.  087. 

ast  u.  s. 


1918L 


SOUTHERN  R.  CO  v.  LLOYD. 


497-490 


[497]  Mr.  Justice  Day  delivered  the 
opinion  of  the  court: 

W.  L.  Lloyd,  herein  called  the  plaintiff, 
brought  his  action  in  the  superior  court  of 
Guilford  county,  North  Carolina,  against 
the  defendant,  the  Southern  Railway  Com- 
pany, joined  with  its  lessor,  the  North 
Carolina  Railroad  Company.  The  action 
was  brought  under  the  Federal  employers' 
liability  act  of  1908,  35  Stat,  at  L.  65, 
ehap.  149,  as  amended  April  5th,  1910,  36 
Stat,  at  L.  291,  chap.  143,'Comp.  SUt 
1913,  §  8662. 

The  North  Carolina  Railroad  Company  la 
a  corporation  of  the  state  of  North  Caro- 
lina, owning  a  railroad  line  extending 
from  Goldsboro,  North  Carolina,  to  Char- 
lotte, in  the  same  state.  The  Southern 
Railway  Company  is  organized  under  the 
laws  of  the  state  of  Virginia,  and  is  a  com- 
mon carrier  engaged  in  interstate  commerce, 
transporting  freight  and  passengers  from 
the  city  of  Washington,  District  of  Colum- 
bia, through  Greensboro,  and  over  the  tracks 
of  the  North  Carolina  Railroad  Company 
ihrough  Spencer,  Salisbury,  and  Charlotte. 

The  petition  charges  that  the  Southern 
Railway  Company  was,  at  the  time  of  the 
injuries  complained  of,  operating  as  lessee 
of  the  North  Carolina  Railroad   Company 
the  roads  and  side  tracks  at  Spencer;  that 
on  January  l!2th,  1911,  plaintiff  was  cm- 
ployed   as   an   engineer  by   the   defendant, 
Southern     Railway     Company,     upon     its 
freight   trains   running   over    said   line   of 
road    from    Spencer,    North    Carolina,    to 
Monroe,  Virginia,  and  was  engaged  in  in- 
terstate traffic;  that  upon  said  date  he  was 
directed  as  engineer  to  take  charge  of  a 
certain    engine    at    Spencer,    to    ascertain 
whether  the  same  was  in  serviceable  con- 
dition, as  it  had  just  come  from  the  re- 
pair shops;   that  while  he  was  operating  | 
the  engine  on  one  of  the  side  tracks  of  the 
North  Carolina  Railroad  Company's  main 
line  at   Spencer,  and   was   oiling   and   in- 
specting  the    same,    in    stooping   over   the 
engine  to  ascertain  if  the  ash  pan  and  other 
equipments  were  in  proper  condition,  a  lever 
about  2  [408]  feet  long,  located  at  the  rear 
of  the  driving  wheel  and  the  lower  side  of 
the  engine,  used  for  the  purpose  of  operat- 
ing the  damper  to  the  ash  pan,  tripped  and 
violently  struck   the  plaintiff  in  the  fore- 
head,  causing    serious    harm    and    injury; 
that  the  defective  condition  was  known  to 
the  Southern   Railway  Company,   and  un- 
known to  the  plaintiff;  that  the  plaintiff, 
at  the  time  of  the  injury,  was  employed  by 
the    Southern    Railway    Company   for    the 
purpose  of  transporting  interstate  commerce 
running  to  and  from  Spencer,  North  Caro- 
lina, along  the  main  line  of  the  Southern 
Railway  Company,  part  of  which  said  line 
•O  L.  ed. 


included  the  portion  of  said  North  Carolina 
Railroad  Company's  line  leased  by  the 
Southern  Railway  Company  from  Greens- 
boro, North  Carolina,  to  Spencer,  North  Car- 
olina ;  that  the  engine  upon  which  the  plain- 
tiff was  hurt  was,  and  had  been,  exclusively 
used  by  the  Southern  Railway  Company  in 
the  transportation  of  interstate  commerce 
over  the  line  of  said  road  between  Spencer 
and  Monroe,  Virginia,  and  that  the  plain- 
tiff, at  the  time  of  his  injury,  was  in  charge 
of  said  engine.  Negligence  of  the  Southern 
Railway  Company  ia  charged  in  furnishing 
the  plaintiff  with  an  unsafe  and  dangeroua 
engine,  knowing  the  same  to  be  such,  and 
thereby  rendering  the  plaintiff's  employ- 
ment hazardous  and  dangerous,  and  un- 
necessarily exposing  him  to  peril. 

The  Southern  Railway  Company  in  due 
season  filed  its  petition  for  removal  of  the 
case  to  the  district  court  of  the  United 
States  for  the  western  district  of  North 
Carolina,  because  of  its  diversity  of  citi- 
zenship with  the  plaintiff,  and  alleging  that 
the  joinder  of  the  North  Carolina  Railroad 
Company,  the  local  defendant,  was  fraudu- 
lently made  to  avoid  Federal  jurisdiction; 
that  the  plaintiff  was  not  engaged  in  inter- 
state commerce  at  the  time  of  the  accident; 
that  the  engine  upon  which  he  was  injured 
was  not  engaged  in  any  kind  of  commerce  at 
the  time  of  the  accident;  and  that  these  al- 
legations in  the  petition  were  [400]  fraud- 
ulent and  false,  which  the  plaintiff  know,  or 
could  have  ascertained  by  the  exercise  of 
the  slightest  diligence  upon  his  part.  The 
court  refused  to  remove  the  case,  to  which 
refusal  the  Southern  Railway  Company 
excepted. 

Upon  issue  joined,  the  case  came  on  for 
trial  at  the  February  term,  1913,  of  the 
superior  court  of  Guilford  county.  At  the 
close  of  plaintiff's  testimony,  the  court  inti- 
mated that  there  was  no  cause  of  action 
against  the  North  Carolina  Railroad  Com- 
pany; upon  this  intimation  a  nonsuit  was 
taken  as  to  that  company.  Thereupon  the 
Southern  Railway  Company  filed  a  second 
petition  for  removal  which  the  court,  after 
argument,  granted,  and  an  order  was  made, 
removing  the  case  to  the  district  court  of 
the  United  States  for  the  western  district 
of  North  Carolina.  The  plaintiff  excepted 
to  this  order  of  removal,  and  to  the  non- 
suit as  to  the  North  Carolina  Railroad  Com- 
pany, and,  upon  appeal  to  the  supreme 
court  of  North  Carolina,  that  court  held 
that  the  case  should  not  have  been  removed, 
and  remanded  it  to  the  superior  court  of 
Guilford  county  for  trial.  162  N.  C.  485, 
78  S.  £.  489. 

The  case  coming  on  again  for  trial  in  the 
superior  court,  the  Southern  Railway  Com- 
pany renewed  its  objections  to  the  juris-. 


400-^1 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  XkBK» 


diction  bj  a  plea,  and  set  up  that  the  case 
had  been  docketed  in  the  district  court  of 
the  United  States  for  the  western  district 
of  North  Carolina,  that  no  motion  had  been 
made  to  remand  the  same,  that  the  order 
removing  it  had  not  been  revoked,  and  that 
the  case  was  then  pending  for  trial  in  the 
district  court  as  aforesaid.  The  North 
Carolina  Railroad  Company  also  filed  a 
plea  to  the  jurisdiction.  These  pleas  were 
overruled,  and  upon  trial  a  verdict  and 
judgment  was  rendered  in  favor  of  the 
plaintiff.  Upon  appeal  to  the  supreme  court 
of  North  Carolina,  that  judgment  was  af- 
firmed. 166  N.  C.  24,  81  S.  E.  1003,  7  N. 
C.  C.  A.  620. 

From  the  statement  of  the  case  already 
made,  it  is  apparent  that  the  plaintiff 
sought  to  recover  under  the  [500]  Federal 
employers'  liability  act,  joining  both  rail- 
road companies  upon  .the  theory  that  the 
lessor  company  remained  liable  under  the 
law  of  North  Carolina  upon  the  cause  of  ac- 
tion asserted  by  the  plaintiff.  See  North 
Carolina  R.  Co.  v.  Zachary,  232  U.  S.  248, 
68  L.  ed.  691,  34  Sup.  Ct.  Rep.  306,  Ann.  Cas. 
101 4C,  160.  On  the  face  of  the  petition  a 
case  was  made  invoking  the  jurisdiction  of 
the  state  court  to  recover  under  the  Fed- 
eral act,  because  of  the  negligence  charged. 
That  the  state  court  had  jurisdiction  of 
such  an  action  is  expressly  provided  by 
the  Federal  statute.  Act  of  April  6,  1910, 
36  Stat,  at  L.  291,  chap.  143,  Comp.  Stat. 
1913,  §  8662. 

In  no  case  can  the  right  of  removal  be 
established  b^r  a  petition  to  remove  which 
amounts  simply  to  a  traverse  of  the  facts 
alleged  in  the  plaintiff's  petition,  and  in 
that  way  undertaking  to  try  the  merits  of 
a  cause  of  action,  good  upon  its  face.  Chesa- 
peake &  0.  R.  Co.  V.  Cockrell,  232  U.  S. 
146,  68  L.  ed.  644,  34  Sup.  Ct.  Rep.  278.  It 
is  only  in  cases  wherein  the  facts  alleged 
in  the  petition  for  removal  are  sufficient  to 
fairly  raise  the  issue  of  fraud  that  the  state 
court  is  required  to  surrender  its  juris- 
diction. The  order  of  nonsuit  in  the  trial 
court  as  to  the  North  Carolina  Railroad 
Company,  appealed  from  by  plaintiff,  with 
the  right  of  review  in  the  supreme  court  of 
the  state,  did  not  make  the  case  removable 
as  to  the  Southern  Railway  Company. 
American  Car  k  Foundry  Co.  v.  Kettelhake, 
236  U.  S.  811,  60  L.  ed.  694,  36  Sup.  Ct. 
Rep.  367.  Moreover,  as  we  shall  see  later, 
under  the  employers'  liability  act,  no  case 
is  removable  merely  because  of  diversity  of 
citizenship. 

The  act  of  1910,  supra,  expressly  gives 
jurisdiction  to  the  state  court,  and  pro- 
Tides  that  no  case  arising  under  its  provi- 
•sions,  brought  in  a  state  court  of  competent 
jurisdiction,  shall  be  removed  to  any  court 


of  the  United  States.  Section  28  of  the 
Judicial  Code,  36  Stat,  at  L.  1087,  chap. 
231,  Comp.  Stat.  1913,  §  1010,  conUins  a 
like  provision,  and  expressly  provides  that 
no  case  arising  under  the  employers'  lia- 
bility act  or  any  amendment  thereto, 
brought  in  a  state  court  of  competent  juris- 
diction, shall  be  removed  to  any  court  of  the 
United  States.  The  question  of  the  effect 
of  this  provision  upon  the  right  [501]  to 
remove  a  case  because  of  diversity  of  citi- 
zenship, since*  the  passage  of  the  act  re- 
ferred to,  was  before  this  court  and  passed 
upon  in  Kansas  City  Southern  R.  Ca  v. 
Leslie,  238  U.  S.  699,  69  L.  ed.  1478,  36 
Sup.  Ct.  Hep.  844.  It  was  therein  held  that 
there  was  no  authority  to  remove  such  ac- 
tion from  the  state  court  to  the  Federal 
court  because  of  diversity  of  citizenship. 
Nor  did  the  alleged  fraudulent  joinder  of 
the  local  defendant  in  the  state  court  give 
such  right.  North  Carolina  R.  Co.*  v.  Zach- 
ary, supra.  And  see  Chicago,  R.  I.  k  P.  R. 
Co.  V.  Whiteaker,  decided  in  this  court, 
December  20,  1016  [239  U.  S.  421,  ante,  360,' 
36  Sup.  Ct.  Rep.  152].  Such  right  did  not 
arise  from  the  allegation  of  the  removal 
petition  that  the  injury  did  not  happen  in 
interstate  commerce.  Chesapeake  &  0.  R. 
Co.  V.  Cockrell,  supra.  It  follows  that  the 
state  court  did  not  err  in  its  judgment  as 
to  the  right  of  removal  upon  the  facts  pre* 
sen  ted  in  this  case. 

As  to  other  questions  of  a  Federal  char- 
acter, they  may  be  briefly  disposed  of.  It 
is  insisted  that  the  trial  court  should  have 
given  the  instruction  requested  by  the  rail- 
road company  to  the  effect  that,  upon  the 
facts  shown,  the  plaintiff  was  not  engaged 
in  interstate  commerce  at  the  time  of  his 
injury.  Upon  this  subject  there  is  testi- 
mony in  the  record  to  support  the  allega- 
tions of  plaintiff's  petition  and  the  charge 
to  the  jury  as  given.  The  trial  court 
charged  that,  in  order  to  recover,  the  bur- 
den was  upon  the  plaintiff  to  show  that  at 
the  time  he  received  his  injury  he  was  en- 
gaged in  interstate  commerce.  In  refusing 
the  request  asked,  and  leaving  the  issue  to 
the  jury,  the  trial  court  committed  no  er- 
ror, and  the  supreme  court  of  the  state 
rightly  affirmed  the  judgment  in  that  re- 
spect. North  Carolina  R.  Co.  v.  Zachary, 
supra;  Pedersen  v.  Delaware,  L.  &  W.  R. 
Co.  229  U.  S.  146,  67  L.  ed.  1126,  33  Sup. 
Ct.  Rep.  648,  Ann.  Cas.  1914C,  153,  3  N. 
C.  C.  A.  779;  New  York  C.  &  H.  R.  R.  Co. 
V.  Carr,  238  U.  &  260,  69  L.  ed.  1298,  35 
Sup.  Ct.  Rep.  780;  Pennsylvania  Co.  v. 
Donat,  decided  by  this  court  November  1st, 
1916  [239  U.  S.  60,  ante,  130,  36  Sup.  Ct 
Rep.  4.] 

The  court  properly  refused  the  request  as 
to  contributory  negligence  and  gave  the  rule 

ast  u.  s. 


Idlb. 


HAPAI  ▼.  BKOWK. 


601,  502 


laid  down  in  the  employers'  [602]  liability 
act.  Ab  to  assumption  of  risk,  the  su- 
preme court  held  that  no  such  issue  was 
made  or  submitted  to  the  trial  court  (a 
conclusion  fully  supported  by  the  record), 
and  therefore  under  the  state  practice  no 
question  concerning  that  subject  was  pre- 
sented on  appeal.  This  conclusion  denied 
no  right  of  a  Federal  character. 
Judgment  affirmed. 


HENRY  C.  HAPAI,  G.  W.  A.  Hapai,  and 
Nelson  K.  Sniffen,  Plffs.  in  £rr., 

▼. 

HAY  K.  BROWN,  Arthur  M.  Brown,  Her 
Husband,  Blanche  Walker,  John  Walker, 
Her  Husband,  et  al. 

(See  S.  C.  Reporter's  ed.  502-506.) 

Foreign  Judgments  ^  collateral  attack. 

1.  A  d^ree  of  the  highest  court  of  the 
Kingdom  of  Hawaii,  which  has  been  given 
«fTcct  by  ^he  territorial  supreme  court  as 
an  adjudication  of  title,  should  not  be  de- 
clared invalid  by  the  Federal  courts  on 
the  ground  that  the  bill,  being  one  for 
partition,  could  not  be  made  the  means  of 
trying  a  disputed  title. 

I  For  otlier  cases,  see  Judgment,  VI.  a.  In  Di- 
gest Sap.  Ct  1908.] 

Appeal  ^  mode  of  review  ^  error  to 

IIa%valian  sopreme  court. 

2.  A  decree  of  the  Hawaiian  supreme 
court  in  a  suit  involving  the  requisite  juris- 
dictional amount,  triea  without  a  jury,  is 
reviewable  in  the  Federal  Supreme  Court 
by  writ  of  error,  under  the  provision  of 
the  Judicial  Code,  §  246,  by  which  writs 
«f  error  and  appeals  from  the  final  judg- 
ments and  decrees  of  the  Supreme  Court  of 
Hawaii  may  be  taken  in  the  same  manner, 
under  the  same  regulations,  and  in  the 
same  classes  of  cases  in  which  they  may  be 
taken  from  the  final  judgments  and  decrees 
of  the  courts  of  a  state,  and  also  in  all 
cases  wherein  the  amount  involved,  exclu- 
sive of  costs,  exceeds  the  sum  or  value  of 
$5,000. 

(For  other  cases,  see  Appeal  and  Error,  II. 
b.  In  Digest  Sup.  Ct.  1008.] 

[No.  120.] 

Argued  December  17,  1015.     Decided  Jan- 
uary 10,  1916. 


I 


N  ERROR  to  the  Supreme  Court  of  the 
Territory  of  Hawaii  to  review  a  decree 


Note. — As  to  conclusiveness  of  judgment 
Tendered  in  foreign  country— see  notes  to 
Dunstan  v.  Higgins,  20  L.R.A.  668;  and 
Fisher,  B.  &  Co.  v.  Fielding,  32  L.R.A.  236. 

(>u  appellate  jurisdiction  of  Federal  Su- 
preme   Court    over    Hawaiian    courts — see 
note  to  Toyota  v.  Hawaii,  57  L.  ed.  U.  S. 
180. 
«0  L.  ed. 


which  afllrmed  a  decree  of  the  Circuit  Court 
of  the  First  Judicial  Circuit  in  favor  of 
defendants  in  a  suit  to  quiet  title.    Affirmed. 

See  same  case  below,  21  Haw.  756. 

The  facts  are  stated  in  the  opinion. 

Mr.  Ix>rrin  Andrews  argued  the  cause 
and  filed  a  brief  for  plaintiffs  in  error: 

A  bill  for  partition  cannot  be  made  a 
means  of  trying  a  disputed  title. 

Kaaimanu  v.  Kauwa,  3  Haw.  612;  Kap- 
uakela  v.  laea,  0  Haw.  555;  Ahin  v.  Opele, 

17  Haw.  525;  Kaneohe  Rice  Mill  Co.  v. 
Holi,  20  Haw.  600;  Brown  v.  Davis,  21  Haw. 
327 ;  4  Kent,  Com.  365 ;  Freeman,  Cotenancy 
k  Partition,  §  502;  Bispham,  Eq.  535;  Nash 
V.  Simpson,  78  Me.  142,  3  Atl.  53;  Pierce 
V.  Rallins,  83  Me.  172,  22  Atl.  110;  Chapin 
V.  Sears,  18  Fed.  814;  Clark  v.  Roller,  109 
U.  S.  541,  50  L.  ed.  300,  26  Sup.  Ct.  Rep. 
141;  Brown  v.  Cranberry  Iron  &  Coal  Co. 

18  C.  C.  A.  444,  25  U.  S.  App.  670,  72 
Fed.  96,  40  Fed.  850;  Stuart  v.  Coalter,  4 
Rand.  (Va.)  74,  15  Am.  Dec  731;  Hoff- 
man V.  Beard,  22  Mich.  62;  Manners  v. 
Manners,  2  N.  J.  Eq.  384,  35  Am.  Dec.  512 ; 
I^eil  V.  West,  21  Fla.  508;  Hay  v.  Estell, 
18  N.  J.  Eq.  252;  Lucas  v.  King,  10  N. 
J.  Eq.  280;  Tobin  v.  Tobin,  45  Wis.  200; 
Slockbower  v.  Kanouse,  50  N.  J.  Eq.  481, 
26  Atl.  333;  Horton  v.  Sledge,  29  Ala.  478; 
Shearer  v.  Winston,  33  Miss.  140;  Ellis 
V.  Feist,  65  N.  J.  Eq.  548,  56  Atl.  369; 
Havens  v.  Seashore  Land  Co.  57  N.  J.  Eq. 
143,  41  Atl.  755;  Riverview  Cemetery  Co.  v. 
Turner,  24  N.  J.  Eq.  18;  Lewis  v.  Cocks, 
23  Wall.  471,  23  L.  ed.  71;  Walker  v.  Laflin, 
26  111.  473. 

The  jurisdiction  to  review  judgments  or 
decrees  of  the  courts  of  the  territory  of 
Hawaii  is  to  be  determinedi  not  by  the  law 
governing  as  respects  territories  generally, 
but  by  U.  S.  Rev.  Stat.  §  709,  relating  to 
the  power  to  review  judgments  and  decrees 
of  state  courts. 

Equitable  Life  Assur.  Soc.  v.  Brown,  187 
U.  S.  309,  47  L.  ed.  191,  23  Sup.  Ct.  Rep. 
123;  Wilder's  S.  8.  Co.  v.  Hind,  47  C.  C. 
A.  243,  108  Fed.  113. 

This  court  hat  considered  writs  of  error 
in  jury-waived  cases  and  decided  the  same 
on  their  merits. 

Damon  v»  Hawaii,  104  U.  8.  154,  48  L. 
ed.  016,  24  Sup.  Ct  Rep.  617. 

Mr.  A.  A.  Wilder  argued  the  cause,  and, 
with  Messrs.  Alexander  Britton,  Evans 
Browne,  and  F.  W.  Clements,  filed  a  brief 
for  defendants  in  error: 

The  trial  and  the  determination  of  the 
issue  of  title  was  with  the  consent  of  the 
parties.  Under  such  circumstances  the  ob- 
jection must  now  be  deemed  to  have  been 
waived. 

Kuala  V.  Kuapahi,  16  Haw.  800;  Reynes 


603-505 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oci.  Term, 


V.  Dumont,  130  U.  S.  354,  305,  32  L.  ed. 
934,  946,  9  Sup.  Ct.  Rep.  486;  Kilbourn  v. 
Sunderland,  130  U.  S.  505,  514,  32  L.  ed. 
1005,  1008,  9  Sup.  Ct.  Rep.  594;  Brown, 
B.  &  Co.  ▼.  Lake  Superior  Iron  Co.  134 
U.  S.  530,  33  L.  ed.  1021,  10  Sup.  Ct.  Rep. 
604;  Tyler  ▼.  Savage,  143  U.  S.  79,  97,  36 
L.  ed.  82,  88,  12  Sup.  Ct.  Rep.  340;  Re 
Tyler,  149  U.  S.  164,  181,  37  L.  ed.  689, 
694,  13  Sup.  Ct.  Rep.  785 ;  Hollina  ▼.  Brier- 
field  Coal  k  I.  Co.  150  U.  S.  371,  381,  37 
L.  ed.  1113,  1115,  14  Sup.  Ct.  Rep.  127; 
Ingley  v.  United  States,  150  U.  S.  512,  515, 
37  L.  ed.  1163,  1165,  14  Sup.  Ct.  Rep.  158; 
Pollock  V.  Farmers'  Loan  k  T.  Co.  157  U. 
S.  429,  554,  39  L.  ed.  759,  809,  1^  Sup.  Ct. 
Rep.  673;  Detroit  v.  Detroit  Citizens'  Street 
R.  Co.  184  U.  S.  368,  381,  46  L.  ed.  592, 
605,  22  Sup.  Ct.  Rep.  410;  Beyer  v.  Le 
Fevre,  186  U.  S.  114,  118,  46  L.  ed.  1080, 
1082,  22  Sup.  Ct.  Rep.  765. 

The  appellate  jurisdiction  of  this  court 
over  the  judgment  of  a  territorial  court  in 
a  case  where  there  was  no  trial  by  jury  is 
by  appeal,  and  by  appeal  only. 

Stringfellow  v.  Cain,  99  U.  S.  610,  25  L. 
ed.  421;  Hecht  v.  Boughton,  105  U.  S.  235, 
26  L.  ed.  1018;  United  States  v.  Union  P. 
R.  Co.  105  U.  S.  263,  26  L.  ed.  1021;  Story 
v.  Black,  119  U.  S.  235,  30  L.  ed.  341,  7 
Sup.  Ct.  Rep.  176;  Woolf  v.  Hamilton,  108 
U.  S.  15,  27  L.  ed.  635,  1  Sup.  Ct.  Rep.  139; 
Bonnifleld  v.  Price,  154  U.  S.  672,  and  26 
L.  ed.  1022,  14  Sup.  Ct.  Rep.  1194;  Porto 
Rico  v.  Emmanuel,  235  U.  S.  251,  59  L. 
ed.  215,  35  Sup.  Ct.  Rep.  33. 

Mr.  Justice  Holmes  delivered  the  opin- 
ion of  the  court: 

This  is  a  bill  to  quiet  title  to  an  un- 
divided ^%Q  of  the  ahupuaa  of  Kaonoulu, 
a  large  tract  of  land  in  the  island  of  Maui, 
territory  of  Hawaii.  The  plaintiffs  claim 
through  the  children  of  one  Keaka  other 
than  one  daughter,  Paakuku,  through  whom 
the  defendants  claim  the  whole  tract. 

One  of  the  defenses  was  res  judicata. 
The  proceeding  relied  upon  as  having  de- 
cided the  relative  rights  of  the  parties  was 
a  bill  brought  in  November,  1871,  by  the 
plaintiffs'  predecessors  against  Paakuku  and 
others,  alleging  title  in  Keaka  during  her 
life;  a  devise  by  her  to  her  heirs,  followed 
by  joint  possession  on  the  part  of  the 
plaintiffs  and  of  Paakuku  as  quasi  trustee; 
and  waste,  a  wrongful  sale  and  a  wrongful 
lease  by  Paakuku.  The  bill  prayed  for  an 
account  from  Paakuku,  that  the  sale  and 
lease  be  ordered  to  be  canceled  as  against 
the  plaintiffs,  and  that  a  partition  be  de- 
creed. Paakuku's  answer  set  up  a  convey- 
ance of  the  premises  by  Keaka  to  her  in 
fee,  and  continuous  possession  by  her  since 
the  date  of  the  same.  It  also  alleged  that 
408 


Keaka's  will,  if  not  overridden  by  the  sub- 
sequent deed,  devised  the  land  to  Paakuku 
in  fee,  subject  to  some  merely  personal  and 
revocable  rights  in  some  of  the  plaintiffs. 

[504]  The  case  was  tried  in  the  supreme 
court  before  the  Chief  Justice.  On  October 
1,  1874,  a  minute  was  entered:  "The  opin- 
ion of  the  court  is  that  the  petitioners  have 
no  title  to  the  lands  of  Kaonoulu  and  Kalu- 
apulu  and  so  adjudge.  There  is  no  con- 
troversy about  the  title  of  the  land  at 
Wailuku  and  the  petition  for  partition  of 
that  land  is  hereby  granted  and  decreed 
accordingly."  An  <^inion  filed  two  days 
later  discusses  the  title,  decides  that  the 
deed  alleged  by  Paakuku  is  freed  from 
every  suspicion,  and  repeats  the  language 
of  the  minute.  On  October  12  it  was  de- 
creed that  the  plaintiffs  take  nothing  by 
their  bill.  The  supreme  court  in  the  pres- 
ent case  expressed  the  opinion  which,  apart 
from  the  deference  due  to  it  upon  a  local 
matter,  does  not  require  argument  to  sup- 
port it,  that  the  intention  and  meaning  of 
the  decree  of  October  12  was  t»  dismiss 
the  bill  on  the  ground  that  the  plaintiffs 
had  not  the  title  alleged.  It  therefore  af- 
firmed a  judgment  for  the  defendants,  hold- 
ing that  the  plaintiffs  were  concluded  by 
the  former  decree.  The  only  point,  if  any, 
that  can  be  argued,  is  that  in  general  a 
bill  for  partition  cannot  be  made  a  means 
of  trying  a  disputed  title  (Clark  v.  Roller, 
199  U.  S.  541,  545,  60  L.  ed.  300,  302,  26 
Sup.  Ct.  Rep.  141),  and  that  therefore  the 
decree  should  be  taken  to  be  a  dismissal  for 
want  of  jurisdiction,  or  at  least  allowed 
no  greater  effect  than  if  it  had  gone  on 
that  ground. 

But,  as  we  cannot  doubt  the  import  of 
the  decree  when  rendered,  we  are  narrowed 
in  our  inquiry  to  the  question  of  juris- 
diction in  an  accurate  sense.  Unless  we 
are  prepared  to  pronounce  the  decree  void 
for  want  of  power  to  pass  it,  and  open  to 
collateral  attack,  the  decision  in  this  case 
must  stand.  But  there  was  no  inherent 
difliculty,  no  impossibility  in  the  nature  of 
things  or  for  want  of  physical  power,  in 
the  attempt  to  decide  title  in  the  suit  of 
1871.  And,  as  was  observed  at  the  last 
term,  it  would  seem  surprising  to  suggest 
that  the  highest  court  in  the  Hawaiian 
Islands  did  not  Know  its  own  powers,  or  de- 
cide in  accordance  [505]  with  the  require- 
ments of  the  law  of  which  that  court  was 
the  final  mouthpiece.  John  li  Estate  v. 
Brown,  235  U.  S.  342,  349,  59  L.  ed.  259,  35 
Sup.  Ct.  Rep.  106.  The  plaintiffs  in  the 
former  case  in  no  way  protested  against  the 
trial  of  their  title,  but,  on  the  contrary^ 
sought  relief  distinct  from  partition,  that 
made  the  trial  necessary.  Even  if  we  were 
disposed  to  go  behind  the  decisions  of  the 

239  U.  S. 


191& 


HAUiOWELL  V.  COMMONS. 


605,  50d 


Qiief  Justice  of  the  Kingdom  and  of  the 
highest  court  of  the  territory  upon  a  mat- 
ter like  this,  it  would  seem  to  us  as  un- 
reasonable to  hold  the  adjudication  of  title 
void  because  partition  was  prayed  as  to  hold 
it  void  because  the  decree  was  made  upon  a 
multifarious  bill.  The  cases  where  objec- 
tions to  the  jurisdiction,  though  taken  in 
the  cause,  have  been  held  to  have  been 
waived,  go  farther  than  we  have  to  go 
here.  We  will  not  speculate  as  to  how  ex- 
treme a  case  must  be  to  produce  a  different 
result;  it  is  enough  that  this  is  far  from 
the  line. 

The  defendants  in  error  filed  a  motion  to 
dismiss,  which,  in  view  of  our  opinion  up- 
on the  merits,  they  probably  would  not 
care  to  press,  but  which  we  are  not  at 
liberty  to  disregard.  The  case  is  brought 
here  by  writ  of  error,  whereas,  it  is  said, 
it  should  have  been  brought  up  by  appeal. 
By  §  246  of  the  Judicial  Code  of  March  3, 
1911,  chap.  231,  36  Stat,  at  L.  1087,  Comp. 
SUt.  1913,  §  1223,  writs  of  error  and  ap- 
peals from  the  final  judgments  and  de- 
crees of  the  supreme  court  of  Hawaii  may 
be  taken  ''in  the  same  manner,  under  the 
lame  regulations,  and  in  the  same  classes 
of  cases,  in  which"  they  may  be  taken  from 
the  final  judgments  and  decrees  of  the 
court  of  a  state,  ''and  also  in  all  cases 
wherein  the  amount  involved,  exclusive  of 
eoets,  .  .  .  exceeds  the  sum  or  value  of 
five  thousand  dollars.''  The  present  suit 
comes  here  under  the  last  clause;  at  the 
trial  a  jury  was  waived,  and  the  proposi- 
tion is  that  the  earlier,  provisions  of  the 
section  do  not  govern  this  clause,  but  that, 
except  when  there  is  s  trial  by  jury,  the 
cases  there  mentioned  must  be  brought  to 
this  court  by  appeal  under  the  act  of  April 
7,  1874,  chap.  80,  §  2,  18  Stat  at  L.  27, 
Comp.  Stat.  1913,  §  1652.  It  is  said  that 
[606]  this  has  been  the  practice.  See,  e,  g.^ 
William  W.  Bierce  v.  Uutchins,  206  U.  S. 
340,  51  L.  ed.  828,  27  Sup.  Ct.  Rep.  524. 
Whether  or  not  the  incidental  assumption  in 
that  decision  that  an  appeal  would  lie  was 
correct,  we  are  of  the  opinion  that  the  pro- 
ceeding by  writ  of  error  was  justified  by 
the  plain  meaning  of  §  246.  So  far  as  the 
policy  ot  Congress .  might  permit  (see  act 
of  March  3,  1915,  chap.  90,  §  274b,  38  Stat, 
at  L.  956),  we  should  be  disposed  to  be  a 
little  astute  to  save  a  party's  rights  from 
being  lost  through  mistakes  upon  a  techni- 
cal matter  in  the  somewhat  confused  con- 
dition of  the  statutes.  But  we  cannot 
doubt  that  the  path  adopted  was  right. 

Judgment  affirmed. 
••  Ii.  ed. 


SIMEON  HALLOWELL,  Appt., 

V. 

JOHN  M.  COMMONS,  as  Acting  IndUn 
Agent  and  Superintendent  and  Special 
Disbursing  Agent  for  the  Omaha  Tribe 
of  Indians  of  Nebraska,  and  Sarah  II. 
Walker. 

(See  S.  C.  Reporter's  ed.  506-509.) 

Federal  courts  —  jurisdiction  —  suit 
by  heir  of  Indian  allottee. 

1.  Any  jurisdiction  which  the  Federal 
courts  may  have  had  of  suits  to  establish 
the  equitable  title  of  alleged  heirs  of  an 
Indian  allottee  dying  intestate  during  the 
trust  period  must  be  deemed  to  have  been 
taken  away,  even  as  to  pending  cases,  by  the 
provisions  of  the  act  of  June  25,  1910  (36 
Stat,  at  L.  855,  chap.  431,  Comp.  Stat. 
1913,  §  4226),  vesting  in  the  Secretary  of 
the  Interior  the  final  and  conclusive  ascer- 
tainment of  such  heirs,  notwithstanding 
the  provision  of  U.  S.  Rev.  Stat.  §  13, 
Comp.  Stat.  1013,  §  14,  that  the  repeal  of 
any  statute  shall  not  extinguish  any  lia- 
bility incurred  under  it. 

[For  other  cases,  see  Courts,  V.  c,  2,  g,  In 
Digest  Sup.  Ct.  1908.] 

Federal  courts  —  jurisdiction  —  con- 
gressional control  —  suit  by  heir  of 
Indian  allottee. 

2.  Congress,  in  the  exercise  of  its  con- 
trol over  courts  of  its  own  creation  and 
over  the  Indians,  could  validly  take  away, 
even  as  to  pending  cases,  as  it  did  by  the 
act  of  June  25,  1910  (36  Stat,  at  L.  855, 
chap.  431,  Comp.  SUt.  1913,  §  4226),  any 
jurisdiction  which  the  Federal  district 
courts  may  have  had  of  suits  to  establish 
the  equitable  title  of  alleged  heirs  of  au 
Indian  allottee  dying  intestate  during  the 
trust  period,  and  vest  in  the  Secretary  of 
the  Interior  the  final  and  conclusive  as- 
certainment of  such  heirs. 

[For  other  cases,  see  Courts.  I.  J;  Indians^ 
VIII.,  in  Digest  Sup.  Ct.  1908.] 

[No.  135.] 


Submitted  December   15,   1915.     Decided 
January  10,  1916. 

• 

APPEAL  from  the  United  States  Circuit 
Court  of  Appeals  for  the  Eighth  Cir- 
suit  to  review  a  decree  which  afiirmed  a 
decree  of  the  District  Court  for  the  District 
of  Nebraska,  dismissing  the  bill  in  a  suit 
to  establish  the  equitable  title  of  an  alleged 
heir  of  an  Indian  allottee  dying  intestate 
during  the  trust  period.     Afiirmed. 

See  same  case  below,  127  C.  C.  A.  343, 
210  Fed.  793. 

The  facts  are  stated  in  the  opinion. 

Note. — ^As  to  Federal  control  over  In- 
I  dians — see  note  to  Worcester  ▼.  Qeorgia,  8 
'  L.  ed.  U.  S.  484. 


607,  508 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tsmm, 


Messrs.  Hiram  Chmse  and  William 
Ross  King  submitted  the  cause  for  appel- 
lant: 

The  repeal  or  amendment  of  a  statute  con* 
ferrlng  a  right  has  been  held  not  applicable 
to  pending  cases. 

United  SUtes  Fidelity  &  G.  Co.  ▼.  United 
States,  209  U.  S.  306,  52  L.  ed.  804,  28  Sup. 
Ct.  Rep.  537;  United  States  Fidelity  k  G. 
Co.  V.  United  States,  204  U.  S.  349,  51  L. 
ed.  516,  27  Sup.  Ct.  Rep.  381;  Burton  v. 
Seifert  A  Co.  108  Va.  338,  61  8.  E.  933. 
.  At  common  law,  all  actions  were  ter- 
minated with  the  repeal  of  the  statute  under 
which  they  existed.  The  evil,  effect  of  this 
rule,  both  with  respect  to  criminal  and  civil 
actions  pending  at  the  time  of  amendment, 
has  been  recognized  by  numerous  statutes 
and  by  the  trend  of  decisions,  which  in  every 
way  seek  to  avoid  the  consequences  of  the 
common-law  rule. 

Eastman  v.  Clackamas  County,  32  Fed. 
33;  Hertz  v.  Woodman,  218  U.  S.  216,  54 
L.  ed.  1006,  30  Sup.  Ct.  Rep.  621;  Burton 
V.  Seifert  &  Co.  108  Va.  338,  61  S.  E.  933; 
Merlo  V.  Johnston  City  &  B.  M.  Coal  k  Min. 
Co.  258  111.  328, 101  N.  E.  525;  Consolidated 
Barb  Wire  Co.  v.  Stevenson,  71  Kan.  64, 
79  Pac.  1085;  Wells  v.  Remington,  118  Wis. 
573,  95  N.  W.  1004;  Murphy  v.  Uttter,  186 
U.  S.  95,  46  L.  ed.  1070,  22  Sup.  Ct.  Rep. 
776;  Hochstettler  v.  Mosier  Coal  &  Min.  Co. 
8  Ind.  App.  442,  35  N.  E.  027. 

Assistant  Attorney  General  Knaebel 
submitted  the  cause  for  appellees: 

The  plain  result  of  the  act  of  1910  was 
to  transfer  back  to  the  Secretary  of  the  In- 
terior the  exclusive  power  to  settle  disputes 
like  the  one  here  involved,  which  had  been 
taken  away  from  him  and  vested  in  the 
Federal  courts  by  the  acts  of  1894  and 
1901;  and  so  it  has  been  held,  even  in  cases 
which  were  pending  before  the  act  of  1910 
became  effective. 

Bond  V.  United  States,  181  Fed.  613 ;  Pel- 
AU-Yakot  V.  United  States,  188  Fed.  387 ; 
Parr  v.  Colfax,  117  C.  C.  A.  48,  107  Fed. 
302. 

If  a  law  conferring  jtirisdiction  is 're- 
pealed without  any  reservation  as  to  pend- 
ing cases,  all  such  cases  fall  with  the  law. 

Baltimore  &  P.  R.  Co.  v.  Grant,  08  U.  S. 
398,  401,  25  L.  ed.  231,  232. 

Mr.  Justice  Holmes  delivered  the  opin- 
ion of  the  court: 

lliis  is  a  bill  to  establish  the  equitable 
title  of  the  plaintiff  to  an  allotment  made 
to  Jacob  Hallowell,  deceased,  a  member 
of  the  Omaha  Tribe,  in  accordance  with 
§§  5,  6,  of  the  act  of  August  7,  1882,  chap. 
434,  22  Stat,  at  L.  341.  The  patent  to 
Jacob  Hallowell  followed  the  language  of 
4f 


§  6,  and  declared  that  the  United  Staten 
would  hold  his  land  for  the  period  of 
twenty-five  years  in  trust  for  the  sole  use 
of  the  allottee  "or  in  case  of  his  decease,  of 
his  heirs  according  to  the  laws  of  the  state 
of  Nebraska."  Ihe  plaintiff  says  that  he 
is  the  sole  heir  as  against  various  other 
claims  set  forth  in  the  bilL  We  do  not  go 
into  further  particulars,  as  we  are  of  opin- 
ion that  the  circuit  court  of  appeals  was 
right  in  holding  that  the  district  court  had 
no  [508]  jurisdiction  of  the  case.  127  C. 
C.  A.  343,  210  Fed.  793. 

It  is  unnecessary  to  consider  whether 
there  was  jurisdiction  when  the  suit  was 
begun.  By  the  act  of  June  25,  1910,  chap. 
431,  36  Stat,  at  L.  855,  Comp.  Stat.  1913, 
§  4226,  it  was  provided  that  in  a  case  like 
this  of  the  death  of  the  allottee  intestate 
during  the  trust  period,  the  Secretary  of 
the  Interior  should  ascertain  the  legal  heirs 
of  the  decedent,  and  his  decision  should  be 
final  and  conclusive;  with  considerable  dis- 
cretion as  to  details.  This  act  restored  to 
the  Secretary  the  power  that  had  been  taken 
from  him  by  acts  of  1894  [28  Stot.  at  L. 
305,  chap.  290]  and  February  6,  1901,  chap. 
217,  31  Stat,  at  L.  760,  Comp.  Stat.  1913, 
§  4214.  McKay  v.  Kalyton,  204  U.  S.  458, 
468,  51  L.  ed.  566,  570,  27  Sup.  Ct.  Rep. 
346.  It  made  his  jurisdiction  exclusive  in 
terms,  it  made  no  exception  for  pending 
litigation,  but  purported  to  be  universal, 
and  so  to  take  away  the  jurisdiction  that 
for  a  time  had  been  conferred  upon  the 
courts  of  the  United  State^.  The  appellant 
contends  for  a  different  construction  on  the 
strength  of  Rev.  Stat.  §  13,  Comp.  Stat. 
1913,  §  14,  that  the  repeal  of  any  statute 
shall  not  extinguish  any  liability  incurred 
under  it  (Hertz  v.  Woodman,  218  U.  S. 
205,  216,  54  L.  ed.  1001,  1000,  30  Sup.  Ct. 
Rep.  621),  and  refers  to  the  decisions  up- 
on the  statutes  concerning  suits  upon  cer- 
tain bonds  given  to  the  United  States  (Unit- 
ed States  Fidelity  &  G.  Co.  v.  United  States, 
209  U.  S.  306,  52  L.  ed.  804,  28  Sup.  Ct.  Rep. 
537).  But,  apart  from  a  question  that  we 
have  passed,  whether  the  plaintiff  even  at- 
tempted to  rely  upon  the  statutes  giving  ju- 
risdiction to  the  courts  in  allotment  cases,  the 
reference  of  the  matter  to  the  Secretary, 
unlike  the  changes  with  regard  to  suits  upon 
bonds,  takes  away  no  substantive  right,  but 
simply  changes  the  tribunal  that  is  to  hear 
the  case.  In  doing  so  ii  evinces  a  change 
of  policy,  and  an  opinion  that  the  rights 
of  the.  Indians  tan  be  better  preserved  by 
the  quasi  paternal  supervision  of  the  gen- 
eral head  of  Indian  affairs.  The  considera- 
tion  applies  with  the  same  force  to  all 
eases,  and  was  embodied  in  a  statute  that 
no  doubt  was  intended  to  apply  to  all,  so 
far  as  construction  is  concerned. 

289  U.  S. 


1915. 


SEVEN  CASES  v.  UNITED  STATES. 


600,  610 


[509]  There  is  equally  little  doubt  as  to 
tlie  power  of  Congress  to  pass  the  act,  so 
construed.  We  presume  that  no  one  would 
question  it  if  the  suit  had  not  been  begun. 
It  is  a  strong  proposition'  that  bringing 
this  bill  intensified,  strengthened,  or  en- 
larged the  plaintiff's  rights,  as  suggested  in 
De  Lima  ▼.  Bidwell,  182  U.  S.  1, 190,  200,  45 
L.  ed.  1041,  1057,  1058,  21  Sup.  Ct  Rep. 
743.  See  Simmons  ▼.  Hanover,  23  Pick. 
188,  103,  194;  Hepburn  v.  Cnrts,  7  Watts, 
300,  32  Am.  Dec.  760;  Welch  v.  Wadsworth, 
30  Conn.  140,  154,  70  Am.  Deo.  236;  Atwood 
V.  Buckingham,  78  Conn.  423,  62  Atl.  616. 
The  diillculty  in  applying  such  a  proposi- 
tion to  the  control  of  Congress  over  the 
jurisdiction  of  courts  of  its  own  creation  is 
«8pecially  obvious.  See  Bird  v.  United 
SUtes,  187  U.  a  118,  124,  47  L.  ed.  100, 
103,  23  Sup.  Ct.  Rep.  42.  In  any  event,  the 
rights  of  the  Indians  in  this  matter  re- 
mained subject  to  such  control  on  principles 
that  have  been  illustrated  in  many  ways. 
See  Marchie  Tiger  v.  Western  Invest.  Co. 
221  U.  S.  286,  55  L.  ed.  738,  31  Sup.  Ct. 
Rep.  578;  Hallowell  v.  United  SUtes,  221 
U.  S.  317,  55  L.  ed.  750,  31  Sup.  Ct  Rep. 
587. 

The  decision  of  the  Circuit  Court  of  Ap- 
peals in  this  case  is  in  accord  with  such 
earlier  decisions,  as  we  have  seen.  Bond 
T.  United  SUtes,  181  Fed.  613;  Pel-aU-yakot 
v.  United  SUtes,  188  Fed.  387;  Parr  ▼. 
Colfax,  117  C.  C.  A.  48,  197  Fed.  302. 

Decree  dismissing  the  bill  for  want  of 
jurisdiction   affirmed. 


(510]  SEVEN  CASES  (More  or  Less), 
Eaeh  ConUining  Twelve  Bottles  of  Eck- 
man's  Alterative,  Eckman  Manufacturing 
Company,  Owner,  Plff.  in  Err., 

V. 

UNITED  STATES  OF  AMERICA.  (No.  50.) 


SIX  CASES  (More  or  Less),  Each  Con- 
Uining Twelve  Bottles  of  Eckman's  Al- 
terative, Eckman  Manufacturing  Com- 
pany, Owner,  Plff.  in  Err., 

V. 

UNITED  STATES  OF  AMERICA.  (No.  51.) 

(See  S.  C.  Reporter's  ed.  510-519.) 

Commerce  —  In  misbranded  drugs  ^ 
power  of  Congress  —  prohibiting 
false  Btatemenu  as  to  curative  ef- 
fecu. 

1.  Congress,  in  the  exercise  of  iU  au- 
thoribr  over  interstate  commerce,  could 
lawful] V  amend  the  food  and  dru^  act  of 
June  SN),  1906  (34  SUt.  at  L.  768,  chap. 
^915),  §  8,  as  it  did  by  the  act  of  August 
23,  1912  (37  SUt.  at  L.  416,  chap.  352, 
Comp.  SUt.  1913,  §  8724),  so  as  to  make 
40  L.  ed. 


contraband  of  intersUte  commerce,  as  mis- 
branded,  drugs  which  bear  or  oonUin  in 
or  upon  packages  or  Ubels  false  and  fraud- 
ulent sUtemenU  as  to  ourative  or  thera- 
peutic effect. 

[For  other  cases,  see  Commerce,  lY.  b,  1,  in 
Digest  Sup.  Ci  1908.1 

Pure  food  and  drugs  law  —  misbrand- 
iniT  ^  statements  in  circnlara. 

2.  Circulars  conUined  in  the  package 
are  comprehended  by  the  amendment  of 
August  23,  1912  (37  SUt.  at  L.  416,  chap. 
352,  Comp.  SUt.  1913,  §  8724),  to  the 
foo4  and  drugs  act  of  Jime  30,  1906  (34 
SUt.  at  L.  768,  chap.  3915),  §  8,  declaring 
that  a  drufl  shall  be  deemed  to  be  mis- 
branded  if  lu  package  or  laliel  shall  bear 
or  conUin  any  sUtement,  design,  or  de- 
vice regarding  the  curative  or  werapeutic 
effect  of  the  drug  or  anv  of  the  ingredients 
or  substances  conUined  therein,  which  is 
false  and  fraudulent. 

[For  other  cases,  see  Food  and  Drngs,  In  Dl- 

^tt  Sup,  Ct.  1918  Supp.] 
Constitutional    law  ^  due   process   of 

law  —  indeflniteness  of  penal  sUtuto. 

3.  There  is  no  such  uncerUinty  in  the 
amendment  by  the  act  of  August  23,  1912 
(37  SUt.  at  L  416,  chap.  362,  Comp.  SUt. 
1913,  S  8724),  to  the  food  and  drugs  act  of 
June  30,  1906  (34  SUt.  at  L.  768,  chap. 
3915),  §  8,  making  contraband  of  intersUte 
commerce,  as  misbranded,  drugs  which  bear 
or  conUin  in  or  upon  packages  or  labels 
false  and  fraudulent  sUtemenU  as  to  cura- 
tive or  therapeutic  effect,  as  te  render  the 
amendatery  act  repugnant,  te  U.  S.  Const., 
5th  Amend.,  as  operating  as  a  deprivation 
of  liberty  and  property  without  due  process 
of  law,  or  to  the  6th  Amendment,  as  not 
permitting  of  the  laying  of  a  definite 
charge. 

[For  other  cases,  see  Constitutional  Law,  IV. 
b.  9;  Criminal  Law,  I.  a,  la  Digest  Sup.  Ct. 
1908.1 

Pnre  food  and  drugs  law  —  snfllclency 

of   libel   —  allegation   of   false  and 

fraudulent  statements  of  tlierapentio 

effect. 

4.  The  falsity  and  fraudulent  char- 
acter of  the  sUtemenU  and  circulars  con- 
Uined in  each  package  of  a  drug,  vis., 
"Effective  as  a  prevenUtive  for  pneumonia,'* 
and  "We  know  it  has  cured,"  and  that  it 


NoTK. — On  the  power  of  Congress  te  regu- 
late commerce — see  notes  te  SUte  ex  rel. 
Corwin  v.  Indiana  &  0.  Oil,  (?as  k  Min.  Co. 
6  L.R. A.  579 ;  Bullard  v.  Northern  P.  R.  Co. 
11  L.R.A.  246;  Re  Wilson,  12  L.RJI.  624; 
Gibbons  v.  Ogden,  6  L.  ed.  U.  S.  23 ;  Brown 
V.  Maryland,  6  L.  ed.  U.  S.  678;  Gloucester 
Ferry  Co.  v.  Pennsylvania,  29  L.  ed.  U.  S. 
158;  Ratterman  v.  Western  U.  Teleg.  Co. 
32  L.  ed.,  U.  S.  229;  Harmon  t.  Chicago, 
37  L.  ed.  U.  S.  216;  and  Cleveland,  C.  C.  & 
St.  L.  R.  Co.  V.  Backus,  88  L.  ed.  U.  S.  1041. 

As  te  validity  of  police  regulations  as  te 
branding  or  labeling  articles  of  commerce-^ 
see  note  to  Alcorn  Cotton  Oil  Co.  v.  SUte, 
40  L.RJl.(N.S.)  875. 

As  to  expression  of  opinion  as  fraud — 
see  note  to  Hedin  v.  Minneapolis  Medical  k 
Surgical  Institute,  85  L.RJL  417. 

4ii 


SUPBEME  OOURT  OF  THE  UNITED  STATES. 


Oor. 


*'will  cure  tuberculosis/'  is  sufficiently 
shown  in  libels  for  the  condemnation  of 
the  drues  as  misbranded,  in  violation  of 
the  food  and  drugs  act  of  June  30,  1006 
(34  Stat,  at  L.  708,  chap.  3915),  §  8,  as 
amended  by  the  act  of  August  23,  1912 
(37  Stat,  at  L.  416,  chap.  352,  Comp.  Stat. 
1013,  §  8724),  where  it  is  alleged  that 
such  statements  were  false  and  fraudulent, 
and  with  respect  to  tuberculosis  it  was 
averred  that  the  statement  was  that  the 
article  "has  cured,"  and  "will  cure,"  where- 
as, "in  truth  and  in  fact,"  it  will  "not  cure," 
and  there  is  no  "medicinal  substance  nor 
mixture  of  substances  known  at  present" 
which  can  be  relied  on  to  effect  a  cure. 
[For  Giber  cases,  see  Food  and  Drugs,  in  Dl- 
gest  Sup,  Ct.  1913  Supp.l 

[Nob.  50  and  51.] 

Argued  December  2,  1915.     Decided  Janu- 
ary  10,   1916. 

TWO  WRITS  OF  ERROR  to  the  District 
Court   of   the   United    States   for   the 
District  of  Nebraska  to  review  judgments 
condemning  drugs  as  misbranded.    Affirmed. 
The  facts  are  stated  in  the  opinion. 

Mr.  Daniel  W.  Baker  argued  the  cause, 
and,  with  Mr.  Francis  D.  Weaver,  filed  a 
brief  for  plaintiff  in  error: 

This  is  a  penal  statute  and  must  be  con- 
strued as  such. 

Hipolite  Egg  Co.  ▼.  United  States,  220  U. 
S.  45-60,  55  L.  ed.  364-369,  31  Sup.  Ct 
Rep.  364;  United  States  v.  Johnson,  177 
Fed.  313:  Huntington  v.  Attrill,  146  U.  S. 
667-669,  36  L.  ed.  1127,  1128,  13  Sup.  Ct. 
Rep.  224;  United  States  v.  Chouteau,  102 
U.  S.  603,  26  L.  ed.  246;  Lagler  v.  Bye, 
42  Ind.  App.  592,  85  N.  E.  36;  Diversey  v. 
Smith,  103  111.  390,  42  Am.  Rep.  14;  Boyd 
V.  United  States,  116  U.  S.  616,  29  L.  ed. 
746,  6  Sup.  Ct.  Rep.  524;  Coffey  v.  United 
States,  116  U.  S.  436,  29  L.  ed.  684,  6  Sup. 
Ct.  Rep.  437;  Lees  v.  United  States,  150 
U.  S.  476,  37  L.  ed.  1150,  14  Sup.  Ct.  Rep. 
163;  Hepner  v.  United  States,  213  U.  S. 
Ill,  53  L.  ed.  723,  27  L.R.A.(N.S.)  739, 
29  Sup.  Ct.  Rep.  474,  16  Ann.  Cas.  960; 
United  States  v.  Harris,  177  U.  S.  305,  44 
L.  ed.  780,  20  Sup.  Ct.  Rep.  609;  United 
States  ▼.  Lacher,  134  U.  S.  629,  33  L.  ed. 
1083,  10  Sup.  Ct.  Rep.  625;  Northern  Se- 
curities Co.  ▼.  United  SUtes,  193  U.  S. 
358,  48  L.  ed.  709,  24  Sup.  Ct.  Rep.  436< 

The  power  of  Congress  over  interstate 
commerce  is  not  an  unlimited  power.  The 
power  of  Congress  is  prescribed  by  the  Con- 
stitution. And  the  power  to  regulate  com- 
merce is  like  all  'the  other  powers  given  by 
the  Constitution,  and  it  cannot  and  must 
not  be  construed  to  extend  to  regulations 
of  police,   which  have  been  left  with   the 

4ia 


states  and  cannot  be  assumed  by  the  na- 
tional government. 

Keller  v.  United  States,  213  U.  S.  138, 
53  L.  ed.  737,  29  Sup.  Ct.  Rep.  470,  16 
Ann.  Cas.  1066;  United  States  v.  Delaware 
&  H.  Co.  164  Fed.  229 ;  McDermott  v.  Wis- 
cousin,  228  U.  S.  115,  57  L.  ed.  754,  47 
LJLA.(N.S.)  984,  33  Sup.  Ct.  Rep.  431, 
Ann.  Cas.  1915A,  39. 

The  act  violates  the  5th  and  6th  Amend- 
ments to  the  Federal  Constitution. 

United  States  ▼.  Delaware  &  H.  Co.  164 
Fed.  229;  American  School  v.  McAnnulty, 
187  U.  S.  94,  47  L.  ed.  90,  23  Sup.  Ct.  Rep. 
33;  Tozer  v.  United  States,  4  Inters.  Com. 
Rep.  245,  52  Fed.  919;  Todd  v.  United 
States,  158  U.  S.  282,  39  L.  ed.  982,  15 
Sup.  Ct.  Rep.  889;  United  States  v.  Lacher, 
134  U.  S.  628,  33  L.  ed.  1083,  10  Sup.  Ct. 
Rep.  625;  United  States  v.  Grimaud,  170 
Fed.  210;  State  v.  Mann,  2  Or.  241;  Brown 
V.  State,  137  WU.  543,  119  N.  W.  338; 
United  States  v.  Capital  Traction  Co.  34 
App.  D.  C.  597,  19  Ann.  Cas.  68. 

Ihe  libel  is  not  specific,  in  that  it  docs 
not  directly  point  out  to  the  defendant 
wherein  he  has  violated  the  law. 

United  States  v.  Simmons,  96  U.  S.  360, 
24  L.  ed.  819;  United  SUtes  v.  Carll,  105 
U.  S.  611,  26  L.  ed.  1135,  4  Am.  Crim.  Rep. 
246;  United  States  v.  Hess,  124  U.  S.  483, 
31  L.  ed.  516,  8  Sup.  Ct.  Rep.  571;  Petti- 
bone  V.  United  States,  148  U.  S.  202,  37 
L.  ed.  422,  13  Sup.  Ct.  Rep.  542;  Blitz  v. 
United  States,  153  U.  S.  315,  38  L.  ed.  727, 
14  Sup.  Ct.  Rep.  024;  Evans  v.  United 
States,  153  U.  S.  587,  38  L.  ed.  831,  14  Sup. 
Ct.  Rep.  934,  9  Am.  Crim.  Rep.  668;  Led- 
better  v.  United  States,  170  U.  S.  610,  42 
L.  ed.  1163,  18  Sup.  Ct.  Rep.  774. 

Where  there  is  used  a  written  instrument 
as  a  ground  for  an  offense  or  cause  of  ac- 
tion, such  instrument  must  be  set  out  either 
in  its  legal  effect  or  in  substance,  and  it 
cannot  be  referred  to  by  disconnected  parts 
or  sentences. 

McClure  v.  Review  Pub.  Co.  38  Wash. 
160,  80  Pac.  303;  Edgerley  v.  Swain,  32 
N.  H.  481;  Com.  v.  Wright,  1  Cush.  62; 
Schubert  v.  Richter,  92  Wis.  199,  66  N.  W. 
107. 

There  can  be  no  proceeding  under  the 
pure  food  and  drugs  act  to  condemn  drugs, 
unless  alleged  fraudulent  and  false  state- 
ments appear  on  the  original  packages,  or 
on  the  bottles  themselves.  There  can  be  no 
seizure  where  the  statements  are  not  con- 
tained on  the  label  or  on  the  package. 

United  States  v.  American  Druggists'  Syn- 
dicate, 186  Fed.  387;  McDermott  v.  Wis- 
consin, 228  U.  S.  115,  57  L.  ed.  754,  47 
L.RJi.(N.S.)  984,  33  Sup.  Ct.  Rep.  431, 
Ann.  Cas.  1915A,  39. 

2S9  V.  8, 


1915. 


SE^'EX  CASES  V.  UNITED  STATES. 


^alaely/'  when  used  at  a  foundation  for 
a  criminal  prosecution,  or  a  quasi  criminal 
proceeding  like  this,  means  something  more 
than  merely  untrue. 

Hatcher  ▼.  Dunn,  102  Iowa,  411,  36  L.R^. 
489,  71  N.  W.  343;  Ratterman  v.  Ingalls, 
48  Ohio  Si.  468,  28  N.  E.  168;  SUte  ▼. 
Brady,  100  Iowa,  191,  36  L.RJL  693,  62 
Am.  St.  Rep.  560,  69  N.  W.  290. 

By  the  use  of  the  word  "fraudulent,"  in 
the  Sherley  amendment,  it  was  intended  that 
the  statement  made  must  be  a  fraudulent 
act  on  the  part  of  the  person  making  it, — 
that  the  party  making  the  statement  must 
be  guilty  of  some  act  of  moral  turpitude. 

MiUer  ▼.  Tobin,  18  Fed.  609;  Ball  t. 
lively,  4  Dana,  370;  Hagerman  ▼.  Buchan- 
mn,  45  N.  J.  Eq.  292,  14  Am.  St.  Rep.  732, 
17  Atl.  946;  Byard  ▼.  Holmes,  34  N.  J.  L. 
296,  •  Mor.  Min.  Rep.  657;  People  t. 
Wiman,  85  Hun,  320,  32  N.  Y.  Supp.  1037 ; 
Re  Reiifeld,  36  Misc.  472,  73  N.  Y.  Supp. 
808;  4  Bouvier's,  Inst.  167. 

The  words  "fraud"  and  "fraudulent"  are 
mere  conclusions  of  law,  and  the  mere  use 
of  them  in  a  pleading  is  of  no  effect.  The 
pleading  must  state  facts  showing  the  state- 
ments  to  be  fraudulent. 

Phcenix  Ins.  Co.  ▼.  Moog,  78  Ala.  284,  56 
Am.  Rep.  31;  St.  Louis  A,  S.  F.  R.  Co.  v. 
Johnson,  133  U..S.  566-578,  33  L.  ed.  683- 
687,  10  Sup.  Ct.  Rep.  390;  Fogg  t.  Blair, 
139  U.  S.  118-127,  35  L.  ed.  104-107,  11 
Sup.  Ct.  Rep.  476;  Fox  y.  Hale  k  N.  Silver 
Hin.  Co.  5  Cal.  Unrep.  980,  53  Pac.  32; 
Tolbert  ▼.  Caledonia  Ins.  Co.  101  Ga.  746,  28 
S.  E.  991;  Anderson  Transfer  Co.  v.  Fuller, 
73  111.  App.  52;  Ward  ▼.  Luneen,  25  111. 
App.  160;  Kerr  ▼.  Steman,  72  Iowa,  241, 
33  N.  W.  654;  Cohn  ▼.  Goldman,  76  N.  Y. 
284;  16  Cyc.  231;  Cqsgrove  T.  Fisk,  90  Cal. 
75,  27  Pac.  56;  New  Bank  y.  Kleiner,  112 
Wis.  287,  87  N.  W.  1090;  Cade  v.  Head 
Camp,  P.  J.  W.  W.  27  Wash.  218,  67  Pac. 
603;  Crowley  y.  Hicks,  98  Wis.  566,  74 
N.  W.  348;  Brans  y.  United  States,  153 
U.  S.  584,  38  L.  ed.  830,  14  Sup.  Ct.  Rep. 
934,  9  Am.  Crim.  Rep.  668;  United  States 
T.  Post,  113  Fed.  852;  Erbaugb  v.  United 
States,  97  C.  C.  A.  663,  173  Fed.  435; 
Etheredge  y.  United  SUtes,  108  C.  C.  A. 
356,  186  Fed.  437;  United  States  y.  Louis- 
TUle  k  N.  R.  Co.  165  Fed.  036;  United  SUtes 
▼.  68  Cases  of  Syrup,  172  Fed.  782 ;  United 
States  y.  650  Cases  of  Tomato  Catsup,  166 
Fed.  773;  Nave-McCord  Mercantile  Co.  y. 
United  States,  104  C.  C.  A.  486,  182  Fed. 
46. 

Assistant  Attorney  General  Underwood 
trgoed  the  cause  and  filed  a  brief  for  de- 
teidant  in  error: 

The  letter  of  the  amendment,  its  spirit 
tad  that  of  the  entire  act»  the  evil  to  be 
60L.  ed. 


remedied,  and  the  legislative  history  of  the 
amendment,  all  show  indubitably  that  Con- 
gress intended  to  exclude  from  interstate 
commerce  all  articles  accompanied  by  false 
and  fraudulent  representations  of  the  kind 
in  question,  whether  printed  on  the  ex- 
terior label  or  upon  circulars  inclosed  with- 
in the  original  package. 

Church  of  the  Holy  Trinity  v.  United 
SUtes,  143  U.  S.  457,  463,  36  L.  ed.  226, 
229,  12  Sup.  Ct.  Rep.  511;  Lake  County 
V.  Rollins,  130  U.  S.  662,  670,  32  L.  ed. 
1060,  1063,  9  Sup.  Ct.  Rep.  651;  United 
States  y.  Lexington  Mill  k  Elevator  Co.  232 
U.  S.  399,  400,  58  L.  ed.  658,  661,  LJtA. 
1915B,  774,  34  Sup.  Ct.  Rep.  337;  United 
States  y.  Antikamnia  Chemical  Co.  231  U. 
S.  654,  667,  58  L.  ed.  410,  425,  34  Sup. 
Ct.  Rep.  222,  Ann.  Cas.  1915A,  49;  United 
SUtes  y.  Goldenberg,  168  U.  S.  95,  102,  42 
L.  ed.  394,  398,  18  Sup.  Ct.  Rep.  3;  Pot- 
ter's Dwarr.  SUt.  146;  New  Lamp  Chimney 
Co.  V.  Ansonia  Brass  k  Copper  Co.  91  U. 
S.  656,  663,  23  L.  ed.  336,  339;  Johnson  v. 
Southern  P.  Co.  106  U.  S.  1,  18,  49  L.  ed. 
363,  369,  25  Sup.  Ct.  Rep.  158,  17  Am. 
Neg.  Rep.  412;  United  States  v.  Winn,  3 
Sumn.  211,  Fed.  Cas.  No.  16,740;  Post- 
master General  v.  Early,  12  Wheat.  136, 
148,  6  L.  ed.  577,  582;  Murphy  v.  Utter, 
186  U.  S.  95,  46  L.  ed.  1070,  22  Sup.  Ct. 
Rep.  776;  Piatt  v.  Union  P.  R.  Co.  99  U. 
S.  48,  58,  25  L.  ed.  424,  427. 

The  Sherley  amendment  is  a  constitution^ 
al  regulation  of  intersUte  commerce. 

Gibbons  v.  Ogden,  9  Wheat.  1,  196,  6 
L.^ed.  23,  70;  Lottery  Case  (Champion  v. 
Ames)  188  U.  S.  321,  353,  355,  47  L.  ed. 
492,  500,  501,  23  Sup.  Ct.  Rep.  321,  13  Am. 
Crim.  Rep.  561;  M'Culloch  v.  Maryland, 
4  Wheat.  421,  4  L.  ed.  605;  Hipollte  Egg 
Co.  y.  United  SUtes,  220  U.  S.  45,  55  L. 
ed.  364,  31  Sup.  Ct.  Rep.  364;  Flint  v.  Stone 
Tracy  Co.  220  U.  S.  107,  176,  55  L.  ed. 
389,  423,  31  Sup.  Ct.  Rep.  342,  Ann.  Cas. 
1912B,  1312;  Legal  Tender  Cases,  12  Wall. 
457,  20  L.  ed.  287 ;  United  SUtes  v.  Patten, 
226  U.  S.  525,  57  L.  ed.  333,  44  L.R.A. 
(N.S.)  325,  33  Sup.  Ct.  Rep.  141;  Loewe 
v.  Lawlor,  208  U.  S.  274,  52  L.  ed.  488,  28 
Sup.  Ct.  Rep.  301,  13  Ann.  Cas.  815;  Second 
Employers'  Liability  Cases  (Mondou  v.  New 
York,  N.  H.  k  H.  R.  Co.)  223  U.  S.  1,  47, 
56  L.  ed.  327,  345,  38  L.R.A.(N.S.)  44,  32 
Sup.  Ct.  Rep.  169,  1  N.  C.  C.  A.  875;  Mc- 
Dermott  v.  Wisconsin,  228  U.  S.  115,  128, 
130,  57  L.  ed.  754,  764,  47  L.R.A.(N.S.) 
984,  33  Sup.  Ct.  Rep.  431,  Ann.  Cas.  1915A, 
39;  Hoke  v.  United  SUtes,  227  U.  S.  308, 
322,  323,  57  L.  ed.  523,  527,  5293,  43  L.R.A. 
(N.S.)  906,  33  Sup.  Ct.  Rep.  281,  Ann.  Cas. 
1913E,  905;  Gloucester  Ferry  Co.  v.  Penn- 
sylvania, 114  U.  S.  196,  215,  29  L.  ed.  158, 

41f 


512 


SUlPREME  CJOURT  OF  THE  UNITED  STATES. 


Oor.  Tbbic» 


166,  1-  Inters.  Com.   Rep.  382,  5  Sup.  Ct. 
Rep.  826;  Cooley,  Const.  Lim.  7th  ed.  856. 

The  Sherley  amendment  is  not  a  regula- 
tion of  matters  of  opinion. 

Chaffee  v.  United  States,  18  Wall.  516, 
542,  21  L.  ed.  008,  912;  Cliquot's  Cham- 
pagne, 3  Wall.  114,  18  L.  ed.  116;  Stebbins 
▼.  Eddy,  4  Mason,  423,  Fed.  Cas.  No.  13,342; 
Russell  V.  Clarke,  7  Cranch,  60,  04,  3  L.  ed. 
271,  280;  McDonald  v.  Smith,  130  Mich.  211, 
102  N.  W.  668;  Com.  v.  Pierce,  138  Mass. 
165,  52  Am.  Rep.  264,  5  Am.  Crim.  Rep. 
301;  Cooley,  Torts,  3d  ed.  p.  025;  Smith  v. 
Land  &  House  Property  Corp.  L.  R.  28  Ch. 
Div.  15,  51  L.  T.  N.  S.  718,  40  J.  P.  182; 
Hedin  v.  Minneapolis  Medical  &  S.  Institute, 
62  Minn.  146,  35  L.R.A.  417,  54  Am.  St 
Rep.  628,  64  N.  W.  158;  State  v.  Jules,  85 
Md.  311,  36  Atl.  1027;  Reg.  v.  Giles,  10 
Cox,  C.  C.  44,  Leigh.  &  C.  C.  C.  502,  32 
L.  J.  Mag.  Cas.  N.  S.  50,  11  Jur.  N.  S.  110, 
11  L.  T.  N.  S.  643,  13  Week.  Rep.  327 ;  Fos- 
ter V.  Swasey,  2  Woodb.  &  M.  217,  Fed.  Cas. 
No.  4,084;  Reg.  v.  Bruce,  1  Frost.  & 
F.  523;  Murray  v.  Tolman,  162  111.  417, 
44  N.  E.  748;  Scott  v.  Burnright,  131 
Iowa,  507,  10  N.  W.  422;  Culley  v. 
Jones,  164  Ind.  168,  73  N.  E.  94;  Simar 
V.  Canaday,  53  N.  Y.  298,  13  Am.  Rep. 
523;  Hickey  v.  Morrell,  102  N.  Y.  454, 
5  Am.  Rep.  824,  7  N.  E.  321;  French 
V.  Ryan,  104  Mich.  625,  62  N.  W.  1016; 
McDonald  v.  Smith,  130  Mich.  211,  102  N. 
W.  668;  Montgomery  Southern  R.  Co.  v. 
Matthews,  77  Ala.  357,  54  Am.  Rep.  60; 
Eibel  V.  Von  Fell,  55  N.  J.  Eq.  670,  38  Atl. 
201;  Birdsey  v.  Butterfield,  34  Wis.  52; 
Darling  v.  Stuart,  63  Vt.  570,  22  Atl.  634 ; 
Cruess  v.  Fessler,  30  Cal.  336;  Smith  v. 
Griswold,  6  Or.  440;  Kohler  Mfg.  Co.  v. 
Beeshore,  8  C.  C.  A.  215,  17  U.  S.  App.  352, 
50  Fed.  572 ;  Missouri  Drug  Co.  v.  Wyman, 
120  Fed.  623;  Walters  v.  Rock,  18  N.  D. 
45,  115  N.  W.  511;  Ayres  v.  French,  41 
Conn.  142;  Pom.  Eq.  Jur.  §  878;  State  ex 
rel.  Feller  v.  State  Medical  Examiners,  34 
Minn.  301,  26  N.  W.  125 ;  Durland  v.  United 
SUtes,  161  U.  S.  306,  313,  40  L.  ed.  709, 
711,  16  Sup.  Ct.  Rep.  508;  Evans  v.  United 
SUtes,  153  U.  S.  584,  502,  38  L.  ed.  830, 
833,  14  Sup.  Ct.  Rep.  034,  0  Am.  Crim.  Rep. 
668;  Public  Clearing  House  v.  Coyne,  104 
U.  S.  407,  516,  48  L.  ed.  1002,  1101,  24 
Sup.  Ct.  Rep.  780;  Bowen  v.  State,  0  Baxt. 
45,  40  Am.  Rep.  71;  United  States  v.  Am- 
erican Laboratories,  222  Fed.  104. 

The  act  is  not  violative  of  the  5th  or  6th 
Amendment. 

Hoke  V.  United  States,  227  U.  S.  308,  323, 
57  L.  ed.  523,  527,  43  L.R.A.(N.S.)  006,  33 
Sup.  Ct.  Rep.  281,  Ann.  Cas.  1013E,  005; 
Gibbons  v.  Ogden,  0  Wheat.  1,  107,  6  L.  ed. 
23,  70;  Dent  v.  West  Virginia,  120  U.  S. 
^J4 


114,  32  L.  ed.  623,  0  Sup.  Ct.  Rep.  231; 
WaUon  V.  Maryland,  218  U.  S.  173,  54  L. 
ed.  087,  30  Sup.  Ct.  Rep.  644;  Collins  v. 
Texas,  223  U.  S.  288,  206,  56  L.  ed.  430, 
444,  32  Sup.  Ct.  Rep.  286;  Hawker  v.  New 
York,  170  U.  S.  180,  42  L.  ed.  1002,  18  Sup. 
Ct.  Rep.  573;  Reetz  ▼.  Michigan,  188  U. 
S.  505,  47  L.  ed.  563,  23  Sup.  Ct.  Rep.  300. 

This  is  a  proceeding  in  rem, — a  civil,  and 
not  a  criminal,  case. 

Friedenstein  v.  United  SUtes,  125  U.  S. 
224,  231,  31  L.  ed.  736,  740,  8  Sup.  Ct.  Rep. 
838;  Whelan  v.  United  SUtes,  7  Cranch, 
112,  3  L.  ed.  286;  Hipolite  Egg  Co.  v. 
United  States,  220  U.  S.  45,  55,  55  L.  ed. 
364,  367,  31  Sup.  Ct.  Rep.  364;  The  Tliree 
Friends,  166  U.  S.  1,  40,  41  L.  ed.  807,  013, 
17  Stlp.  Ct.  Rep.  405;  Swearingen  v. 
United  SUtes,  161  U.  S.  446,  451,  40  L. 
ed.  765,  766,  16  Sup.  Ct.  Rep.  562;  United 
SUtes  V.  Wong  Kim  Ark,  160  U.  S.  640, 
42  L.  ed.  890,  18  Sup.  Ct.  Rep.  456;  Keck 
V.  United  SUtes,  172  U.  S.  434,  446,  43 
L.  ed.  505,  510,  10  Sup.  Ct.  Rep.  254;  Ohio 
ex  rel.  Lloyd  v.  Dollison,  104  U.  S.  445, 
450,  48  L.  ed.  1062,  1066,  24  Sup.  Ct.  Rep. 
703;  United  SUtes  v.  Smith,  5  Wheat. 
153,  150,  160,  5  L.  ed.  57,  58,  50;  United 
SUtes  V.  Kelly,  11  Wheat.  417,  6  L.  ed. 
508;  Baker  v.  SUte,  12  Ohio  St.  214;  Com. 
V.  Exler,  243  Pa.  155,  80  Atl.  068;  SUte 
V.  Camley,  67  Vt.  322,  31  Atl.  840;  Nash 
V.  United  SUtes,  220  U.  S.  373,  377,  57 
L.  ed.  1232,  1235,  33  Sup.  Ct.  Rep.  780; 
International  Harvester  Co.  v.  Kentucky, 
234  U.  S.  216,  223,  58  L.  ed.  1284,  1288, 
34  Sup.  Ct.  Rep.  853. 

The  libel  in  this  case  meeU  even  the  re- 
quirements of  the  rules  of  pleading  in  crim- 
inal cases. 

United  SUtes  v.  Simmons,  06  U.  8.  360, 
362,  24  L.  ed.  810,  820;  Fogg  v.  Blair,  130 
U.  S.  118,  127,  35  L.  ed.  104,  107,  11  Sup. 
Ct.  Rep.  476;  Wecker  v.  National  Enameling 
&  SUmping  Co.  204  U.  S.  176,  185,  51  L. 
ed.  430,  435,  27  Sup.  Ct.  Rep.  184,  0  Ann. 
Cas.  757 ;  Evans  v.  United  States,  153  U.  S. 
584,  503,  38  L.  ed.  830,  833,  14  Sup.  Ct. 
Rep.  034,  0  Am.  Crim.  Rep.  668;  Morrow 
V.  Bonebrake,  84  Kan.  724,  34  L.RJiL.(N.S.) 
1147,  115  Pac.  585;  Garvin  v.  Harrell,  27 
Okla.  373,  35  L.R.A.(N.S.)  862,  113  Pac 
186,  Ann.  Cas.  1012B,  744. 

Mr.  Justice  Hughes  delivered  the  opin- 
ion of  the  court: 

Libels  were  filed  by  the  United  SUtes,  in 
December,  1012,  to  condemn  cerUin  articles 
of  drugs  (known  as  "Eckman's  Alterative") 
as  misbranded  in  violation  of  §  8  of  the 
food  and  drugs  act.  The  articles  had  been 
shipped  in  interstate  commerce,  from  Chi- 
cago to  Omaha,  and  remained  at  the  latter 

2S9  U.  S. 


1915. 


SEVEN  CASES  v.  UNITED  STATSa 


612-515 


place  unsold  and  in  the  unbroken  original  i 
packages.  Ihe  two  cases  present  the  same  I 
questions,  tlie  libels  being  identical  save 
with  respect  to  quantities  and  the  persons 
in  possession.  In  each  case  demurrers  were 
filed  by  the  shipper,  the  Eckman  Manufac- 
turing Company,  which  challenged  both  the 
Euflicieiicy  of  the  libels  under  the  applicable 
provision  of  the  statute  and  the  constitu- 
tionality of  that  provision.  [513]  The  de- 
murrers were  overruled,  and,  the  Eckman 
Company  having  elected  to  stand  on  the  de- 
murrers, judgments  of  condemnation  were 
entered. 

Section  8  of  the  food  and  drugs  act,  as 
amended  by  the  act  of  August  23,  1012, 
chap.  352,  37  SUt.  at  L.  416,  Comp.  Stat. 
1913,  §  8724,  provides,  with  respect  to  the 
misbranding  of  drugs,  as  follows: 

"Sec.  8.  That  the  term  'misbranded,'  as 
used  herein,  shall  apply  to  all  drugs  or 
articles  of  food  or  articles  which  enter  into 
the  composition  of  food,  the  package  or 
label  of  which  shall  bear  any  statement, 
design,  or  device  regarding  such  article,  or 
the  ingredients  or  substances  contained 
therein  which  shall  be  false  or  misleading 
in  any  particular,  and  to  any  food  or  drug 
product  which  is  falsely  branded  as  to  the 
state,  territory,  or  country  in  which  it  is 
manufactured  or  produced. 

"That  for  the  purposes  of  this  act  an 
article  shall  also  be  deemed  to  be  mis- 
branded.    In  case  of  drugs: 


"Third.  If  its  package  or  label  shall  bear 
or  contain  any  statement,  design,  or  device 
regarding  the  curative  or  therapeutic  effect 
of  such  article  or  any  of  the  ingredients 
or  substances  contained  therein,  which  is 
false  and  fraudulent." 

The  amendment  of  1912  consisted  in  the 
addition  of  paragraph  "Third,"  which  is  the 
provision  here  involved. 

It  is  alleged  in  each  libel  that  every  one 
of  the  cases  of  drugs  sought  to  be  con- 
demned contained  twelve  bottles,  each  of 
which  was  labeled  as  follows: 

''Eckman's  Alterative, — contains  twelve 
per  cent  of  alcohol  by  weight,  or  fourteen 
per  cent  by  volume — used  as  a  solvent.  For 
all  throat  and  lung  diseases  including 
Bronchitis,  Bronchial  Catarrh,  Asthma, 
Hay  Fever,  Coughs  and  Colds,  and  Catarrh 
of  the  Stomach  and  Bowels,  and  Tuberculo- 
sis (Consumption)  .  '.  .  Two  dollars  a 
bottle.  Prepared  only  by  Eckman  Mfg.  Co. 
Laboratory  Philadelphia,  Penna.,  U.  S.  A." 

[514]  And  in  every  package,  containing 
one  of  the  bottles,  there  was  contained  a  cir- 
cular with  this  statement: 

"Effective  as   a  preventative   for   Pneu- 
monia."   "We  know  it  has  cured  and  that 
it  has  and  will  cure  Tuberculosis." 
•0  L.  ed. 


The  libel  charges  that  the  statement  "ef- 
fective as  a  preventative  for  pneumonia" 
is* "false,  fraudulent,  and  misleading  in  this, 
to  wit,  that  it  conveys  the  impression  to 
purchasers  that  said  article  of  drugs  can 
be  used  as  an  effective  preventative  for 
pneumonia,  whereas,  in  truth  and  in  fact, 
said  article  of  drugs  could  not  be  so  used ;" 
and  that  the  statement,  "we  know  it  has 
cured"  and  that  it  "will  cure  tuberculosis" 
is  "false,  fraudulent,  and  misleading  in  this, 
to  wit,  that  it  conveys  the  impression  to 
purchasers  that  said  article  of  drugs  will 
cure  tuberculosis,  or  consumption,  whereas, 
in  truth  and  in  fact,  said  article  of  drugs 
would  not  cure  tuberculosis,  or  consump- 
tion, there  being  no  medicinal  substance  nor 
mixture  of  substances  known  at  present 
whidi  can  be  relied  upon  for  the  effective 
treatment  or  cure  of  tuberculosis,  or  con- 
sumption." 

Ihe  principal  question  presented  on  this 
writ  of  error  is  with  respect  to  the  validity 
of  the  amendment  of  1912. 

So  far  as  it  is  objected  that  this  measure, 
though  relating  to  articles  transported  in 
interstate  commerce,  is  an  encroachment 
upon  the  reserved  powers  of  the  states,  the 
objection  is  not  to  be  distinguished  in  sub- 
stance from  that  which  was  overruled  in 
sustaining  the  white  slave  act,  36  Stat,  at 
L.  825,  chap.  395,  Comp.  Stat  1913,  §  8812. 
Hoke  V.  United  SUtes,  227  U.  S.  308,  57  L. 
ed.  523,  43  L.RJiL.(K.S.)  906,  33  Sup.  Ct. 
Rep.  281,  Ann.  Cas.  1913E,  905.  There, 
after  stating  that  "if  the  facility  of  inter- 
state transportation"  can  be  denied  in  the 
case  of  lotteries,  obscene  literature,  dis- 
eased cattle  and  persons,  and  impure  food 
and  drugs,  the  like  facility  could  be  taken 
away  from  "the  systematic  enticement  of 
and  the  enslavement  in  prostitution  and  de- 
bauchery of  women,"  the  court  concluded 
with  the  reassertion  of  [515]  the  simple 
principle  that  Congress  is  not  to  be  denied 
the  exercise  of  its  constitutional  authority 
over  interstate  commerce,  and  its  power  to 
adopt  not  only  means  necessary  but  conveni- 
ent to  its  exercise,  because  these  means  may 
have  the  quality  of  police  regulations.  Id. 
pp.  322,  323.  See  Gloucester  Ferry  Co.  v. 
Pennsylvania,  114  U.  S.  196,  215,  29  L.  ed. 
158,  166,  1  Inters.  Com.  Rep.  382,  5  Sup. 
Ct.  Rep.  826;  Hipolite  Egg  Co.  v.  United 
SUtes,  220  U.  S.  45,  57,  55  L.  ed.  364,  368, 
31  Sup.  Ct.  Rep.  364;  Lottery  Case  (Cham- 
pion V.  Ames)  188  U.  S.  321,  47  L.  ed. 
492,  23  Sup.  Ct.  Rep.  321,  13  Am.  Crim. 
Rep.  561. 

It  is  urged  that  the  amendment  of  1012 
does  not  embrace  circulars  contained  in  the 
package,  but  only  applies  to  those  state- 
ments which  appear  on  the  package  or  on 
the  bottles  themselves;  that  is,  it  is  sa* 

4 


615-617 


SUPKEME  CJOURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


that  the  word  "contain"  in  the  amendment 
must  have  the  same  meaning  in  the  case  of 
'both  "package"  and  "label."  Reference  is 
made  to  the' original  provision  in  the  first 
sentence  of  §  8  with  respect  to  the  state- 
ments, etc.,  which  the  package  or  label 
shall  "bear."  And  it  is  insisted  that  if  the 
amendment  of  1912  covers  statements  in 
circulars  which  are  contained  in  the  pack- 
age, it  is  unconstitutional.  Such  state- 
ments, it  is  said,  are  not  so  related  to  the 
commodity  as  to  form  part  of  the  commerce 
which  is  within  the  regulating  power  of 
Congress. 

But  it  appears  from  the  legislative  his- 
tory of  the  act  that  the  word  "contain" 
was  inserted  in  the  amendment  to  hit  pre- 
cisely the  case  of  circulars  or  printed  mat- 
ter placed  inside  the  package,  and  we  think 
that  is  the  fair  import  of  the  provision. 
Cong.  Rec.  62d  Cong.  2d  Sess.  vol.  48,  part 
11,  page  11,322.  And  the  power  of  Congress 
manifestly  does  not  depend  upon  the  mere 
location  of  the  statement  accompanying  the 
article,  that  is,  upon  the  question  whether 
the  statement  is  on  or  in  the  package  which 
is  transported  in  interstate  commerce.  The 
further  contention  that  Congress  may  not 
deal  with  the  package  thus  transported  in 
the  sense  of  the  immediate  container  of  the 
article  as  it  is  intended  for  consumption 
is  met  by  McDermott  v.  Wisconsin,  228  U. 
S.  115,  57  L.  ed.  754,  47  L.RJL(N.8.)  084, 
33  Sup.  Ct.  Rep.  431,  Ann.  Cas.  1915A,  39. 
There  the  [516]  court  said:  "That  the  word 
'package'  or  its  equivalent  expression,  as 
used  by  Congress  in  §§  7  and  8  in  defining 
what  shall  constitute  adulteration  and  what 
shall  constitute  misbranding  within  the 
meaning  of  the  act  [food  and  drugs  act]  clear- 
ly refers  to  the  immediate  container  of  the 
article  which  is  intended  for  consumption 
by  the  public,  there  can  be  no  question. 
•  •  .  Limiting  the  requirements  of  the 
act  as  to  adulteration  and  misbranding 
simply  to  the  outside  wrapping  or  box  con- 
taining the  packages  intended  to  be  pur- 
chased by  the  consumer,  so  that  the  im- 
porter, l^  removing  and  destroying  such 
covering,  could  prevent  the  operation  of  the 
law  on  the  imported  article  yet  unsold, 
would  render  the  act  nugatory  and  its  pro- 
visions wholly  inadequate  to  accomplish  the 
purposes  for  which  it  was  passed."  And, 
after  stating  that  the  requirements  of  the 
act,  thus  construed,  were  clearly  within 
the  power  of  Congress  over  the  facilities  of 
interstate  commerce,  the  court  added  that 
the  doctrine  of  original  packages  set  forth 
in  repeated  decisions,  which  protected  the 
importer  in  the  right  to  sell  the  imported 
goods,  was  not  "intended  to  limit  the  right 
of  Congress,  now  asserted,  to  keep  .the  chan- 
nels of  interstate  commerce  free  from  the 
41« 


carriage  of  injurious  or  fraudulently  brand- 
ed articles,  and  to  choose  appropriate  means 
to  that  end."    Id.  pp.  130,  131,  137. 

Referring  to  the  nature  of  the  state- 
ments which  are  within  the  purview  of  the 
amendment,  it  is  said  that  a  distinction 
should  be  taken  between  articles  that  are 
illicit,  immoral,  or  harmful  and  those  which 
are  legitimate,  and  that  the  amendment 
goes  beyond  statements  dealing  with  iden- 
tity or  ingredients.  B*i^  the  question  re- 
mains as  to  what  may  be  regarded  as 
"illicit/'  and  we  find  no  ground  for  saying 
that  Congress  may  not  condemn  the  inter- 
state transportation  of  swindling  prepara- 
tions designed  to  cheat  credulous  sufferers, 
and  make  such  preparations,  accompanied 
by  false  and  fraudulent  statements,  [517] 
illicit  with  respect  to  interstate  commerce, 
as  well  as,  for  example,  lottery  tickets.  The 
fact  that  the  amendment  is  not  limited,  as 
was  the  original  statute,  to  statements  re- 
garding identity  or  composition  (United 
States  V.  Johnson,  221  U.  S.  488,  55  L.  ed. 
823,  31  Sup.  Ct.  Rep.  627),  does  not  mark  a 
constitutional  distinction.  The  false  and 
fraudulent  statement  which  the  amendment 
describes  accompanies  the  article  in  the 
package,  and  thus  gives  to  the  article  its 
character  in  interstate  commerce. 

Finally,  the  statute  is  attacked  upon  the 
ground  that  it  enters  the  domain  of  specula- 
tion (American  School  v.  McAnnulty,  187 
U.  S.  94,  47  L.  ed.  90,  23  Sup.  Ct.  Rep.  33), 
and  by  virtue  of  consequent  uncertainty 
operates  as  a  deprivation  of  liberty  and 
property  without  due  process  of  law,  in 
violation  of  the  5th  Amendment  of  the  Con- 
stitution, and  does  not  permit  of  the  lay- 
ing of  a  definite  charge  as  required  by  the 
6th  Amendment.  We  think  that  this  ob- 
jection proceeds  upon  a  misconstruction  of 
the  provision.  Congress  deliberately  ex- 
cluded the  field  where  there  are  honest  dif- 
ferences of  opinion  between  schools  and 
practitioners.  Cong.  Rec  62d  (^ng.  2d 
Sees.  vol.  48,  part  12,  Appx.  p.  675.  It 
was,  plainly,  to  leave  no  doubt  upon  this 
point  that  the  words  "false  and  fraudulent^ 
were  used.  This  phrase  must  be  taken  with 
its  accepted  legal  meaning,  and  thus  it  most 
be  found  that  the  statement  contained  in 
the  package  was  put  there  to  accompany 
the  goods  with  actual  intent  to  deceive, — 
an  intent  which  may  be  derived  from  the 
facts  and  circumstances,  but  which  must 
be  established.  Id.  676.  That  false  and 
fraudulent  representations  may  be  made 
with  respect  to  the  curative  effect  of  sub- 
stances is  obvious.  It  is  said  that  the  owner 
has  the  right  to  give  his  views  regarding 
the  effeet  of  his  drugs.  But  state  of  mind 
is  itself  a  fact,  and  may  be  a  material  fact, 
and   false  and  iraudulent  representations 

9S9  U.  8. 


1915. 


COMMERCIAL  NAT.  BANK  y.  CANAL-LOUISIANA  B.  k  T.  CO.      517-520 


majr  be  made  about  it;  and  persons  who 
make  or  deal  in  substances  or  compositions 
[518]  alleged  to  be  curative  are  in  a  posi- 
tion to  have  superior  knowledge,  and  may  be 
held  to  good  faith  in  their  stat^nents.  Rus- 
sell V.  Clark,  7  Cranch,  60»  02,  3  L.  ed.  271, 
279;  Durland  v.  United  SUtes,  161  U.  S. 
306,  313,  40  L.  ed.  709,  711,  16  Sup.  Ct.  Rep. 
508;  Stebbins  v.  Eddy,  4  Mason,  414,  423, 
Fed.  Cas.  No.  13,342;  Kohler  Mfg.  Co.  v. 
Beeshore,  50  Fed.  572,  574;  Missouri  Drug 
Co.  V.  Wyman,  129  Fed.  623,  628;  McDon- 
ald V.  Smith,  139  Mich.  211,  102  N.  W. 
668;  Hedin  T.  Minneapolis  Medical  k  8. 
Institute,  C2  Minn.  146,  149,  35  L.R.A.  417, 
54  Am.  St.  Rep.  628,  64  N.  W.  158;  Hickey 
V.  Morrell,  102  N.  Y.  454,  463,  55  Am.  Rep. 
824,  7  N.  E.  821;  Reg.  v.  Giles,  10  Cox,  C. 
C.  44,  Leigh  &  C.  C.  C.  502,  34  L.  J.  Mag. 
Cas.  50,  11  Jut.  N.  S.  119,  11  L.  T.  N.  S. 
643,  13  Week.  Rep.  327;  Smith  v.  Land  k 
House  Property  Corp.  L.  R.  28  Ch.  Div.  7, 
15,  51  L.  T.  N.  S.  718,  49  J.  P.  182.  It  can- 
not be  said,  for  example,  that  one  who 
should  put  inert  matter  or  a  worthless  com- 
position in  the  channels  of  trade,  labeled 
or  described  in  an  accompanying  circular  as 
a  cure  for  disease,  when  he  knows  it  is  not, 
is  beyond  the  reach  of  the  lawmaking  power. 
Congress  recognized  that  there  was  a  wide 
field  in  which  assertions  as  to  curative  effect 
are  in  no  sense  honest  expressions  of  opin- 
ion, but  constitute  absolute  falsehoods,  and 
in  the  nature  of  the  case  can  be  deemed  to 
have  been  made  only  with  fraudulent  pur- 
pose. The  amendment  of  1912  applies  to 
this  field  and  we  have  no  doubt  of  its 
validity. 

With  respect  to  the  sufficiency  of  the 
averments  of  the  libels,  it  is  enough  to  say 
that  these  averments  should  receive  a  sen- 
sible construction.  There  must  be  a  definite 
charge  of  the  statutory  offense,  but  we  are 
not  at  liberty  to  indulge  in  hypercriticism 
m  order  to  escapo  the  plain  import  of  the 
words  used.  There  is  no  question  as  to  the 
adequacy  of  the  description  of  the  article, 
or  of  the  shipments,  or  of  the  packages.  It 
is  said  that  there  was  no  proper  statement 
of  the  contents  of  the  circular.  But  the 
libels  give  the  words  of  the  circular,  and 
we  think  that  the  allegations  were  sufficient 
to  show  the  manner  in  which  they  were 
used.  The  objection  that  it  was  not  al- 
lied that  the  statements  in  question  ap- 
peared on  the  original  packages  or  on 
the  bottles  themselves,  as  already  pointed 
[510]  out,  is  based  on  a  misconstruction  of 
the  statutory  provision.  The  remaining 
and  most  important  criticism  is  that 
the  libels .  did  not  sufficiently  show  that 
the  statements  were  false  and  fraudulent 
But  it  was  alleged  that  they  were  false  and 
fraudulent,  and  with  respect  to  tuberculo- 
«0  L.  ed.  27 


sis  it  was  averred  that  the  statement  was 
that  the  article  "has  cured"  and  "will  cure," 
whereas  "in  truth  and  in  fact"  it  would 
"not  cure,"  and  that  there  was  no  "medic- 
inal substance  nor  mixture  of  substances 
known  at  present"  which  could  be  relied 
upon  to  effect  a  cure.  We  think  that  this 
was  enough  to  apprise  those  interested  in 
the  goods  of  the  charge  which  they  must 
meet.  It  was,  in  substance,  a  charge  that, 
contrary  to  the  statute,  the  article  had  been 
made  the  subject  of  interstate  transporta- 
tion with  a  statement  contained  in  the  pack- 
age that  the  article  had  cured  and  would 
cure  tuberculosis,  and  that  this  statement 
was  contrary  to  the  fact,  and  was  made 
with  actual  intent  to  deceive. 
Judgments  affirmed. 

Mr.  Justice  McReynolds  took  no  part  In 
the  consideration  or  decision  of  these  cases. 


[520]  COMMERCIAL  NATIONAL  BANK 

OF  NEW  ORLEANS,  Appt., 

▼. 

CANAL-LOUISIANA  BANK  &  TRUST 
COMPANY  and  Jonas  Hiller,  Trustee  of 
Estate  of  Dreuil  -k  Company,  et  al.,  Bank- 
rupts. 

(See  S.  C.  Reporter's  ed.  520-530.) 

Warehouse  receipts  —  pledge  —  bona 
fide  purchaser. 

1.  A  pledgee  of  bills  of  lading  for  cotton, 
who  permits  the  pledgeor  to  withdraw  such 
bills  of  lading  under  an  agreement  to  hold 
for  the  pledgee's  account,  and  thus  enables 
the  pledgeors  to  obtain  negotiable  ware- 
house receipts  which  they  pledge  to  a  bank 
as  security  for  their  notes,  cannot  question 
the  title  of  the  latter,  having  clothed  the 
pledgeor  with  the  indicia  of  ownership, 
within  the  meaning  of  the  doctrine  estab- 
lished by  the  uniform  warehouse  receipts 
act  (La.  Acts  1908,  No.  221,  §§  40,  41,  47), 
that  if  the  owner  of  goods  permits  another 
to  have  possession  or  custody  of  negotiable 
wareliouse  receipts  running  to  the  order 
of  the  latter  or  to  bearer,  it  is  a  represen- 
tation of  title  upon  which  bona  fide  nego- 
tiators for  value  are  entitled  to  rely,  de- 
spite breaches  of  trust  or  violations  of 
agreement  on  the  part  of  the  apparent 
owner. 

[For  other  cases,  see  Warehoosemen,  in  Digest 
Snp.  Ct  1908.1 

Note. — ^As  to  the  effect  of  putting  paper 
or  securities  transferable  by  delivery, 
or  indorsed  or  assigned  in  blank,  into  an- 
other's possession,  to  estop  owner  as  against 
purchaser  in  good  faith — see  note  to  Me- 
Carthy  y.  Crawford,  29  L.R.A.(N.S.)   252. 

On  construction  of  statute  according  to 
purpose  for  which  it  was  passed — see  note 
to  United  States  v.  Saunders,  22  L.  ed.  U. 
S.  736. 


SUPREME  COiniT  OF  THE  UKITED  STATES.  Oct.  Tbui, 

Statntea    •^    construction    —    uniform  .  ■greementa  ateem»,Tj  tor  the  CAirylng  on  ol 

stnt«  InwB.  coinmercui]  buaineM.    By  the  tnut  reoeipt 

2.  The  rule  of  construction  eatkbliahed  no  title  i*  given  to  the  perton  rcoeiving  the 
by  the  uniform  wftrehouee  receipt*  act  (La.  g^n^^ 

AoU   1908,  No.  221,  |   67),  vii.,  "thii  Mt    *  „.  V    „.! ii„  im.  *  r<„    iar  v^    «jb, 

•hall  be  «  interpreted  „d  eon.trued  »  to  r/^^I^^^^'c  C  A   1^     83  F^'  ?m 

eSeetutiU  iU,  general  purpoie  to  make  uni-  5=  ^attu.,  IM  C.  C.  A.  171,  183  Fed.  736i 

form  the  law  of  those  Btatea  which  enact  R*  D-'nUp  Carpet  Co.  208  Fed.  731;   Buah 

it,"  requires  that  the  cardinal  principle  of  t.   Export   Storage   Co.   136  Fed.   836. 

the  act,  which  ia  to  gire  effect  to  the  mer-  A  pledge  ia  not  deatrojed  by  the  pledgee 

eantile   view   of   documenU   of   title,   ahall  intrusting  the  pledgeor  with  the  title  to  the 

have   recognition   to   the   exclusion   of   any  _^g  pledged   (when  the  goods  pledged  can 

^conaiatent  doctrine  which  may  have  pre-  .jm  ^  ij^tifled  in  the  pledgeor's  hand.), 

vioualy   obtained   m  any  of   the   itatea   en-  ,        .t       ,  j             i  j        *?              _.     . 

jjjjjjj,  '(J                            •'  unless  the  pledgeor  pledges  the  property  to 

[For  other  eises,  see  SUtutes,  II.,  In  Digert  aomeone  else  acting  in  good  faith. 

8np.  Ct.  IWS.]  New  York  Security  t  T.  Co.  ».  Llpman, 

WarehODse   re««lpta  —  pledge  —  bona  157  jf.  Y.  551,  G2  N.  E.  696i   Blydenstein 

lido  purcliBser.  ,.  Kew  York  Security  &  T.  Co.  15  C.  C.  A. 

3.  The  rights  of  a  pledgee  of  warehouse  -.  ,-  ,,  „  .^^  ,,'  --  -  .  ,-„ 
rewipU  undM  the  unfform  warehouw  re  ^*' ^°  "/■  ^PP"  "t'  V  .  ^i  ^  u 
ceipts  act  (La.  Acts  1908,  No.  221,  ;g  40,  "  ">«  depoHitor  of  the  good^  though  ha 
41,  47),  aa  a  bona  flde  purchaser,  where  the  h'd  do  title,  had  ability  or  capacity  to 
pledgeors  had  been  clothed  with  apparent  transfer  a  title  to  a  purchaser  for  value, 
ownership  by  the  real  owner,  are  not  lost  either  by  virtue  of  actual  authority  or  bo- 
by  permitting  the  pledgeors  to  withdraw  f^^^  a,^  ^,^^„  had  allowed  a  situation  to 
such  receipt  under  an  agreement  to  hold  ^^jg^  ^^ich  would  estop  him  from  asMTt- 
for  the  pledgee's  account,  where  this  did  .  „  .  .  ,.,,  .  ..  „^.  ,1.  „„.  _„_„ 
not  resuft  in  a  subsequent  negotiation  of  '"8  ^'*  ""^  *»  "••  ^*'  ^*  •*■"*  "^'^ 
them  to  a  purchaser  in  good  faith  for  value.  "houW  protect  a  purchaser  of  the  document 
[For  other  caseg,  see  WarehoDKiuen,  In  Dinst  of  title  that  would  protect  a  purchaser  ot 

Bnp.  Ct.  1M8.1  U,,  good^ 

fNo    1171  Williston,  Sales,  pp.  722,  723;  Pollard  *. 

^             '-*  ReardoD,  13  C.  C.  A.  171,  21  U.  B.  App.  630, 

Argued   December   8,   1816.      Decided   Jan-  85  Fed.  862;  Roland  M.  Baker  Co.  v.  Brown, 

uary  10,  1016.  •up'"'- 

The  Louisiana  law,  outside  of  the  uniform 

APPEAL  from  the  United  States  Circuit  laws,  recognizes  the  absolute  pledge  of  ware- 
Court  of  Appeals  for  the  Fifth  Circuit  house  receipts  by  delivery  only, 
to  rt-view  a  decree  which  affirmed  a  d^ree  Mechanics'  BIdg.  Asso.  v.  Ferguson,  29 
of  the  District  Court  for  the  Eastern  Dis-  La.  Ann.  648;  Lafayette  Bank  v.  Bruif,  S8 
trict  ot  Louisiana,  adverse  to  a  petition  La.  Ann.  024 ;  Chafle  v.  DuBose,  36  La,  Ann, 
for  the  recovery  from  a  trustee  in  bank-  267 ;  Fidelity  &  D.  Co.  v.  Johnston,  117 
niptcy  of  cotton  alleged  to  have  been  held  La.  889,  42  80.  367 ;  Kyle  v.  Sigur,  121 
by  the  bankrupts  for  the  accountr  of  the  La.  889,  46  So.  910;  Honold  v.  Meyer,  M 
petitioner.  Rercrsed  and  remanded  with  La.  Ann.  685;  Oiovanovich  v.  Citixena* 
direction  to  enter  a  decree  in  favor  of  the  Bank,  26  La.  Ann.  IT;  Saloy  v.  Hibemia 
appellant.  Nat.  Bank,  39  La.  Ann.  90,  1  Bo.  667. 

Bee   same  case   below,   128   C.   C.  A.   16,  The  claim  ot  the  Canal -Louisiana  bank  ia 

211  Fed*.  337.  not  the  prior  equity. 

The  facts  are  stated  in  the  opinion.  1  Pom.  Eq.  Jur.  3d  ed.  pp.  690,  601,  604, 

Mr.  Edivln  T.  Merrick  argued  the  cause  805,  §«  414.  417;  2  Pom.  Eq.  Jur.  S  710,  p. 

Mm  filed  a  brief  tor  appellant:  1243;   Nesiin  v.  Wells,  F.  &  Co.  104  U.  8. 

When  Dreuil  &  Company  withdrew  from  "»■  28  L.  ed.  806;  Bacon  t.  Harris.  62  Fed. 

the  Canal.Louisiana  Bank  the  bills  ot  lad-  "^i;  Boone  v.  Chiles,  10  Pet.  210,  211,  9 

ing  for  the  cotton  In  question,  which  had  L.   ed.   400;    Parshall  v.   Eggert,   64   N.   Y. 

been  pledged  to  the  bank  for  money  loaned,  ^^'                                                     ,      . 

and,  after  sending  it  to  a  pickery,  obtained  Whe"  there  is  equal  equity  the  law  muat 

two   negotiable   warehouse    receipts   for   it,  P"™*"-                                  „  „    _    .    . 

and   pUdged   these   warehouse  receipts   for  P^ilUps  v.  Phillips.  4  DeG.  P    k  3.  217. 

the  ii^ootton,  this   latter  pledge  wa.  a  31  L.  J.  Ch.  N.  8.  321,  8  Jur.  N.  8    1«.  5 

Talid  and  binding  one,  so  long  a.  the  pledge,  ^  T.  N.  S.  655,  10  Week.  Rep.  236,  10  Kng. 

waa  acting  in  good  faith.  R"'-  ^a"-  638. 

Roland  M.  Baker  Co.  r.  Brown,  214  Mass.  Mr.  Henrr  Hooney  argued  the  e«iue  mad 

IBS,  100  N.  E.  1026.  flled  a  brief  for  appellees: 

Trust     receipts     have     been     reec^Ixed  By  the  very  terms  of  the  trust  receipt,  tba 

throi^hont  tlie  nation  as  valid  Mid  naetnl  ftrm  of  Dreuil  ft  Company  waa  conatitated 

^XS  It*  V.  s. 


1915.  COMMERCIAL  NAT.  BANK  y.  CANAL-LOUISIANA  B.  k  T.  CO.    622,  623 


the  special  bailee  of  the  Canal-Louisiana 
Bank  k  Trust  Company,  and  was  specificallj 
required  to  surrender  to  such  bank  either 
the  proceeds  derived  from  the  sale  of  the 
said  cotton,  or  the  warehouse  receipts  or 
bills  of  lading  covering  the  same.  Hence, 
Dreuil  k  Company  were  without  any  right 
or  authority  to  execute  the  pledge  to  the 
Commercial  National  Bank,  and  such  pledge 
was  invalid  and  of  no  effect  against  the 
bailor,  without  fault  and  in  good  faith. 

Re  Dreuil,  206  Fed.  668. 

By  the  law  of  Louisiana,  title  to  the  cot- 
ton passed  by  the  delivery  to  the  Canal- 
Louisiana  Bulk  k  Trust  Ccmipany  of  the 
bill  of  lading,  and  was  thereafter  vested  in 
said  bank. 

Fidelity  k  D.  Ce.  v.  Johnston,  117  La. 
880,  42  So.  867. 

Inasmuch  as  both  banks  had  surrendered 
their  respective  muniments  of  title, — the 
Canal-Louisiana  Bank  k  Trust  Company  its 
negotiable  bill  of  lading,  and  the  Commercial 
National  Bank  its  n^otiable  warehouse  re- 
ceipt,— both  banks  stood  upon  their  trust 
receipts  as  evidence  of  the  pledge.  Under 
such  instruments  their  titles  are  equal,  and 
the  more  ancient  prevails. 

Stern  Bros.  v.  Germania  Nat.  Bank,  34 
La.  Ann.  1110;  Lallande  v.  His  Creditors, 
42  La.  Ann.  705,  7  So.  806;  Denis,  Con- 
tracts of  Pledge^  p.  100. 

The  Canal-Louisiana  Bank  k  Trust  Com- 
pany was  without  negligence  in  constituting 
Dreuil  k  Company  its  special  bailee  for  the 
purposes  designated  in  the  trust  receipt,  and 
the  bank's  action  did  not  affect  detrimen- 
tally its  rij^ts  as  pledgee. 

Jacquet  v.  His  Creditors,  38  La.  Ann.  863; 
Story,  Bailm.  |  200;  Weems  v.  Delta  Moss 
Co.  33  La.  Ann.  073;  Troplong  Nantisse- 
ment,  311;  Clark  ▼.  Iselin,  21  Wall.  360, 
22  L.  ed.  660;  White  ▼.  Piatt,  6  Denio,  260; 
Century  Throwing  Co.  ▼.  Muller,  116  C.  C. 
A.  614,  107  Fed.  262. 

[522]  Mr.  Justice  Huches  delivered  the 
opinion  of  the  court: 

This  is  a  controversy  arising  in  a  bank- 
ruptcy proceeding.  The  Commercial  Nation- 
al Bank  of  New  Orleans  petitioned  the 
district  court  for  the  recovery  from  the  trus- 
tee in  bankruptcy  of  certain  bales  of  cotton 
alleged  to  have  been  held  by  the  bankrupts, 
Dreuil  k  Company,  for  the  account  of  the 
petitioner  under  trust  receipts.  The  Canal- 
Louisiana  Bank  k  Trust  Company  defended, 
presenting  its  reconventional  demand  based 
upon  a  claim  of  superior  title.  The  district 
ooort  entered  a  decree  in  favor  of  the 
Canal-Louisiana  Bank  k  Trust  Company 
(206  Fed.  668),  which  was  affirmed  by  the 
dreuit  court  of  appeals.  128  C.  C.  A.  16, 
211  Fed.  337. 
•0  Ii.  ed. 


The  controversy  arises  from  the  following 
transactions  which  were  had  prior  to  the 
bankruptcy.  On  December  0,  1012,  Dreuil  k 
Company,  holding  inland  bills  of  lading  for 
two  lots  of  cotton  (40  bales  and  60  bales 
respectively),  pledged  the  bills  of  lading 
with  the  Canal-Louisiana  Bank  to  secure 
certain  promissory  notes  for  moneys  ad- 
vanced. On  December  13,  1012,  the  bills  of 
lading  were  withdrawn  from  the  Canal- 
Louisiana  Bank  on  trust  receipts,  as  fol- 
lows: 

"Received  of  Canal  Bank  k  Trust  Com- 
pany the  bills  of  lading  or  other  documents 
or  securities  as  enumerated  below,  held  by 
the  said  bank  as  collateral  pledged  to  se- 
cure advances  made  to  the  undersigned,  and 
in  c<msideration  thereof,  the  undersigned 
hereby  agrees  to  pay  over  to  the  said  bank 
or  its  assigns,  and  to  specifically  apply 
against  the  very  same  advances  tiie  pro- 
ceeds of  the  sale  of  the  property  mentioned 
in  the  said  documents;  or  to  deliver  to  the 
said  bank  or  its  assignees  the  shipping 
documents  or  warehouse  receipts  represent- 
ing the  undermentioned  goods  within  one 
day  from  the  receipt  thereof,  this  delivery 
being  temporarily  made  the  undersigned 
for  convenience  only,  without  novation  of 
the  original  debt,  or  giving  the  under- 
signed any  title  thereto,  except  as  [528] 
trustee  for  the  said  bank,  and  except  to  re- 
ceive the  avails  thereof  or  the  documents 
therefor  for  account  of  the  said  bank." 

Dreuil  k  Company,  surrendering  the  bills 
of  lading  to  the  railroad  company,  obtained 
delivery  of  the  cotton  and  sent  It  to  a 
''pickery,"  where  the  lot  of  40  bales  was 
remade  into  60,  and  the  lot  of  60  bales  into 
00.  Dreuil  k  Company  then  stored  the 
cotton  with  a  warehouseman,  the  Planters** 
Press,  receiving  two  negotiable  wardiouse> 
receipts  which,  on  December  17,  1012,  they 
pledged  to  the  Commercial  Bank  as  se- 
curity for  their  notes.  On  December  20^,. 
1012,  and  December  28,  1012,  these  ware- 
house receipts,  respectively,  were  withdrawn 
by  Dreuil  k  Company  from  the  Commercial 
Bank  on  trust  receipts  similar  in  tenor  to 
those  which  had  been  given,  as  above  stated, 
to  the  Canal-Louisiana  Bank.  Dreuil  k 
Company  then  obtained  a  delivery  of  the 
cotton  from  the  Planters'  Press;  on  De- 
cember 31,  1012,  they  were  adjudicated 
bankrupts  and  temporary*  receivers  were 
appointed.  It  appears  that  60  of  the  bales 
had  been  disposed  of,  but  the  remainder  of 
the  cotton,  which  had  been  sent  by  Dreuil 
k  Company  td  a  steamer  for  shipment,  was 
recovered  by  the  receivers  and  placed  by 
them  in  the  Planters'  Press,  warehouse  re* 
ceipts  being  issued  therefor  which  passed 
into  the  possession  of  the  trustee.  Despite 
the   changes   mentioned,    and    re-markinga 

41 


623-^20 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbuc, 


(which  we  need  not  consider),  the  district 
court  found  the  identity  of  the  cotton  to 
•be  established,  and  there  is  no  further 
controversy  upon  that  point.  Nor  is  it 
controverted  that  the  Commercial  Bank 
was  a  purchaser  in  good  faith  for  value  of 
the  warehouse  receipts  negotiated  to  it. 

We  assume  that  under  the  jurisprudence 
of  Louisiana  the  transaction  between  Dreuil 
ft  Company  and  the  Canal-Louisiana  Bank 
(described  by  the  bank  as  a  pledge),  created 
rights  in  the  bank  in  the  nature  of  owner- 
ship for  the  purpose  of  securing  its  ad- 
vances (Rev.  SUt.  [La.]  2482;  [524]  Civil 
Code,  arts.  3167,  3158,  3170,  3173 ;  Fidelity 
k  D.  Co.  y.  Johnston,  117  La.  880,  889,  42  So. 
357;  act  94  of  1912  [uniform  bills  of  lading 
act],  §  32) ;  and  that  when  the  Canal- 
Louisiana  Bank  intrusted  the  bills  of  lading 
to  Dreuil  &  Company  for  the  purposes  de- 
scribed in  the  trust  receipts,  given  to  that 
bank,  it  could  still  assert  its  title  as  against 
Dreuil  &  Company  and  their  trustees  in 
bankruptcy.  See  Clark  v.  Iselin,  21  Wall. 
360,  3C8,  22  L.  ed.  568,  571;  Re  E.  Rebou- 
lin  Fils  &,  Co.  165  Fed.  245;  Charavay  v. 
York  Silk  Mfg.  Co.  170  Fed.  819;  ReCattus, 

106  C.  C.  A.  171,  183  Fed.  733;  Century 
Throwing  Co.  v.  MuUer,  116  C.  C.  A.  614, 

107  Fed.  252;  Re  Dunlap  Carpet  Ca  206 
Fed.  726;  Assets  Realization  Co.  v.  Sov- 
ereign Bank,  126  C.  C.  A.  662,  210  Fed.  156; 
Moors  V.  Kidder.  106  N.  Y.  32,  12  N.  E. 
818;  Drexel  v.  Pease,  133  N.  Y.  129,  30  N. 
E.  732;  Moors  v.  Wyman,  146  Mass.  60,  15 
N.  E.  104;  Moors  v.  Drury,  186  Mass.  424, 
71  N.  E.  810;  Hamilton  v.  Billington,  163 
Pa.  76,  43  Am.  St.  Rep.  780,  29  Atl.  904; 
Willi ston.  Sales,  §  437.  No  question  is  pre- 
sented as  to  the  effect,  in  the  light  of  the 
uniform  bills  of  lading  act  passed  in  Louisi- 
ana in  1912  (act  94),  of  an  attempted 
negotiation  by  Dreuil  k  Company  of  the 
bills  of  lading  contrary  to  the  terms  of  the 
trust  receipts.  See  Roland  M.  Baker  Co. 
V.  Brown,  214  Mass.  196,  203,  100  N.  E. 
1025.  The  bills  of  lading  were  not  negoti- 
ated; they  served  their  purpose,  being  sur- 
rendered to  the  railroad  company  on  the 
delivery  of  the  goods  to  Dreuil  k  Com- 
pany. The  transactions  with  the  "pickery" 
are  not  material  to  the  question  to  be  de- 
cided. Dreuil  k  Company  having  obtained 
possession  of  the  cotton,  as  was  contemplat- 
ed, placed  it  in  store  and  the  question  is  as 
to  the  effect  of  the  negotiation  of  the  ware- 
house receipts  to  the  Conmiercial  Bank. 

It  is  a  familiar  rule  that  one  who  has  no 
title  to  chattels  cannot  transfer  title  unless 
he  has  the  owner's  authority  or  the  owner 
is  estopped.  See  Civil  Code  (La.)  'arts. 
2452,  3142,  3145,  3140.  It  follows  that,  in 
tlie  absence  of  circumstances  creating  an 
estoppel,  one  without  title  cannot  [585] 
420 


transfer  it  by  the  simple  device  of  warehous- 
ing the  goods  and  indorsing  the  receipts. 
But  if  the  owner  of  the  goods  has  permitted 
another  to  be  clothed  with  the  apparent 
ownership  through  the  possession  of  ware- 
house receipts,  negotiable  in  form,  there  is 
abundant  ground  for  protecting  a  bona  fide 
purchaser  for  value  to  whom  the  receipts 
have  been  negotiated.  Pollard  v.  Reardon, 
13  C.  C.  A.  171,  21  U.  S.  App.  639,  65  Fed. 
848,  852;  WilUston,  Sales,  §  421.  The  ^ect 
of  the  negotiation  of  warehouse  receipts  is 
defined  in  the  uniform  warehouse  receipts 
act,  enacted  in  Louisiana  by  act  221  of  1008. 
This  act  provides: 

"Sec.  40.  Who  may  negotiate  a  receipt. — 
A  negotiable'  receipt  may  be  negotiated — 

"(a)   By  the  owner  thereof;  or 

"(b)  By  any  person  to  whom  the  pos- 
session or  custody  of  the  receipt  has  been 
intrusted  by  the  owner,  if,  by  the  terms  of 
the  receipt,  the  warehouseman  undertakes 
to  deliver  the  goods  to  the  order  of  the 
person  to  whom  the  possession  or  custody 
of  the  receipt  has  been  intrusted,  or  if  at 
the  time  of  such  intrusting  the  receipt  is 
in  such  form  that  it  may  be  negotiated  by 
delivery." 

"Sec.  41.  Rights  of  person  to  whom  a  re- 
ceipt has  been  negotiated. — ^A  person  to 
whom  a  n^otiable  receipt  has  been  duly 
negotiated  acquires  thereby — 

"(a)  Such  title  to  the  goods  as  the  per- 
son negotiating  the  receipt  to  him  had  or 
had  ability  to  convey  to  a  purchaser  in 
good  faith  for  value,  and  also  such  title  to 
the  goods  as  the  depositor  or  person  to 
whose  order  the  goods  were  to  be  delivered 
by  the  terms  of  the  receipt  bad  or  had 
ability  to  convey  to  a  purchaser  in  good 
faith  for  value;  and 

"(b)  The  direct  obligation  of  the  ware- 
houseman to  hold  possession  of  the  goods 
for  him  according  to  the  terms  of  the  re- 
ceipt as  fully  as  if  the  warehouseman  had 
contracted  directly  with  him." 

...... 

[526]  "Sec  47.  When  negotiation  not  im- 
paired by  fraud,  mistake,  or  duress. — The 
validity  of  the  negotiation  of  a  receipt  is  not 
impaired  by  the  fact  that  such  negotiation 
was  a  breach  of  duty  on  the  part  of  the 
person  making  the  negotiation,  or  by  the 
fact  that  the  owner  of  the  receipt  was  in- 
duced by  fraud,  mistake,  or  duress  to  in- 
trust the  possession  or  custody  of  the  re- 
ceipt to  such  person,  if  the  person  to  whom 
the  receipt  was  negotiated,  or  a  perscm  to 
whom  the  receipt  was  subsequoitly  negoti- 
ated, paid  value  therefor,  without  notice 
of  the  breacli  of  duty,  or  fraud,  mistake,  or 
duress.'* 

It  will  be  observed  that  "one  who  takes 
by  trespass  or  a  finder  is  not  included  with- 

839  U.  8. 


1015.  COMMERCIAL  NAT.  BANK  ▼.  CANAL-LOUISIANA  B.  ft  T.  CO.     626-528 


in  the  deecription  of  those  who  may  nego- 
tiate." (Report  bf  ConHuissionert  on  Uni- 
form State  Laws,  January  1,  1910,  p.  204.) 
Aaide  from  this,  the  intention  is  plain  to 
facilitate  the  use  of  warehouse  receipts  as 
documents  of  title.  Under  §  40,  the  person 
who  may  n^otiate  the  receipt  is  either  the 
''owner  thereof,"  or  a  "person  to  whom  the 
possession  mr  custody  of  the  receipt  ha^ 
been  intrusted  by  the  owner"  if  the  receipt 
is  in  the  form  described.  The  warehouse 
receipt  represents  the  goods,  but  the  in- 
trusting of  the  receipt,  as  stated,  is  more 
than  the  mer^  delivery  of  the  goods;  it  is 
a  representation  that  the  one  to  whom  the 
possession  of  the  receipt  has  been  so  intrust- 
ed has  the  title  to  the  goods.  By  §  47,  the 
negotiation  of  the  receipt  to  a  purchaser 
for  value  without  notice  is  not  impaired 
by  the  fact  that  it  is  a 'breach  of  duty,  or 
that  the  owner  of  the  receipt  was  induced 
"by  fraud,  mistake,  or  duress"  to  intrust 
the  receipt  to  the  person  who  negotiated  it.. 
And,  under  S  41»  one  to  whom  the  negotia- 
ble receipt  has  been  duly  negotiated  acquires 
such  title  to  the  goods  as  the  person  nego- 
tiating the  receipt  to  him,  or  the  depositor 
or  person  to  whose  order  the  goods  were  de- 
liverable by  the  terms  of  the  receipt,  either 
had  or  "had  ability  to  convey  to  a  pur- 
chaser in  good  faith  for  value."  The  [527] 
clear  import  of  these  provisions  is  that  if  the 
owner  of  the  goods  permits  another  to  have 
the  possession  or  custody  of  negotiable 
wareliouse  receipts  running  to  tbe  order  of 
the  latter,  or  to  bearer,  it  is  a  representa- 
tion of  title  up<m  which  bona  fide  purchas- 
ers for  value  are  mtitled  to  rely,  despite 
breaches  of  trust  or  violations  of  agreement 
on  the  part  of  the  apparent  owner. 

It  cannot  be  doubted  that  if  Dreuil  I 
Company  had  pledged  to  the  Commercial 
Bank  the  bills  of  lading  which  they  with- 
drew from  the  Canal-Louisiana  Bank  under 
the  trust  receipts,  the  former,  paying  value 
in  good  faith,  would  have  had  the  superior 
right.  This  would  have  been  directly  with- 
in the  terms  of  the  uniform  bills  of  lading 
act  (La.  act  04,  1912,  §9  31,  32,  38,  39). 
Roland  M.  Baker  Co.  v.  Brown,  supra;  see 
William  T.  Hardie  k  Co.  v.  Vicksburg,  S. 
k  P.  R.  Co.  118  La.  254,  42  So.  793.  It 
seems  to  be  contended  ihat  the  case  is  dif- 
ferent with  the  warehouse  receipts.  But 
it  cannot  be  said  that  it  was  not  within  the 
contemplation  of  the  parties  that  Dreuil  ft 
Company,  on  obtaining  the  goods  from  the 
railroad  company,  should  put  them  in  ware- 
house and  take  the  usual  receipts.  As  we 
have  stated,  we  are  not  concerned  with 
what  happened  at  the  ''pickery,"  as  the  case 
is  precisely  the  same,  so  far  as  the  Com- 
mercial Bank  it  concerned,  as  if  the  original 
bales  had  been  war^onsed  (without  remak- 


ing)  as  soon  as  received.  It  was  not  the 
placing  of  the  cotton  in  warehouse  in  the 
usual  course  of  business,  but  tbe  n^otia^ 
tion  of  the  receipts,  that  constituted  the 
violation  of  Dreuil  &  Company's  agreement 
with  the  Canal-Louisiana  Bank.  By  the 
very  terms  of  that  agreement  Dreuil  &,  Com- 
pany were  to  take  the  position  of  "trustee" 
for  the  bank,  with  authority  to  receive  '*the 
avails"  of  the  goods  or  "the  documents"* 
therefor  for  account  of  the  bank,  and  be- 
ing bound  to  apply  the  proceeds  of  sale  to 
the  bank's  advances.  And  in  taking  docu- 
ments of  title,  in  ordinary  course,  pursuant 
to  the  agreement,  which  was  intended  to 
facilitate  the  [528]  disposition  of  the  cot- 
ton through  Dreuil  k  Company,  the  latter 
were  manifestly  permitted  to  take  such  docu- 
ments to  their  own  order,  as  they  took  the 
bills  of  lading  with  which  they  were  in- 
trusted. To  repeat,  it  was  the  negotiaiion 
of  the  receipts  that  constituted  the  breach 
of  trust.  But  after  the  Canal-Louisiana 
Bank  had  allowed  Dreuil  k  Company  to  be 
clothed  with  apparent  ownership  through 
possession  of  the  receipts,  it  cannot  bo 
tieard  to  question  the  title  of  a  bona  fide 
purchaser  for  value  to  whom  they  had  been 
negotiated.  Re  Richheimer,  130  C.  C.  A. 
542,  221  Fed.  16. 

It  is  said  that  under  the  law  of  Louisi- 
ana, as  it  stood  prior  to  the  enactment  of 
the  uniform  warehouse  receipts  act,  the 
Commercial  Bank  would  not  have  taken 
title  as  against  the  Canal-Louisiana  Bank 
(Stern  Bros.  v.  Germania  Nat.  Bank,  34 
La.  Ann.  1119;  Lallande  v.  His  Creditors, 
42  La.  Ann.  705,  7  So.  895;  Holton  v.  Hub- 
bard, 49  La.  Ann.  715,  22  So.  338;  Mechan- 
ics' k  T.  Ins.  Co.  V.  Kiger,  103  U.  8.  352, 
20  L.  ed.  433 ;  but  see  WilUam  T.  Hardie  k 
Co.  V.  Vicksburg,  S.  &  P.  R.  Co.  supra) ; 
and  it  is  urged  that  the  new  statute  is  but 
a  step  in  the  development  of  the  law,  and 
that  decisions  under  the  former  state  stat- 
utes are  safe  guides  to  its  construction.  We 
do  not  find  it  necessary  to  review  these  de- 
cisions. It  is  apparent  -  that  if  these  uni- 
form acts  are  construed  in  the  several 
states  adopting  them  according  to  former 
local  views  upon  analogous  subjects,  we 
shall  miss  the  desired  uniformity,  and  we 
shall  erect  upon  the  foundation  of  uniform 
language  separate  legal  structures  as  dis- 
tinct aa  were  the  former  varying  laws.  It 
was  to  prevent  this  result  that  the  uniform 
warehouse  receipts  act  expressly  provides 
(9  57) :  "This  act  shall  be  so  interpreted 
snd  construed  as  to  effectuate  Its  general 
purpose  to  make  uniform  the  law  of  those 
states  which  enact  it."  This  rule  of  construc- 
tion requires  that  in  order  to  accomplish  the 
beneficent  object  of  unifying,  so  far  as  this 
is  possible  under  our  dual  system,  the  com- 

421 


628-^1 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oor.  TwMM^ 


mercial  law  of  the  country,  there  should  be 
taken  into  consideration  the  fundamental 
[520]  purpose  of  the  uniform  act,  and  that 
it  should  not  be  r^arded  merely  as  an  off- 
shoot of  local  law.  The  cardinal  principle 
of  the  act — which  has  been  adopted  in  many 
states— is  to  give  effect,  within  the  limits 
stated,  to  the  mercantile  view  of  documents 
of  title.  There  had  been  statutes  in  some 
of  the  states  dealing  with  such  documents, 
but  there  still  remained  diversity  of  legal 
rights  under  similar  commercial  transac- 
tions. We  think  that  the  principle  of  the 
uniform  act  should  have  recognition  to  the 
exclusion  of  any  inconsistent  doctrine  which 
may  have  previously  obtained  in  any  of  the 
states  enacting  it;  and,  in  this  view,  we 
deem  it  to  be  clear  that,  in  the  circumstan- 
ces disclosed,  the  Commercial  Bank  took  title 
to  the  warehouse  receipts  and  to  the  cotton 
in  question. 

Finally,  it  is  insisted  that  whatever  right 
the  Commercial  Bank  might  have  had,  if 
it  had  retained  the  warehouse  receipts^  it 
lost  as  against  the  Canal-Louisiana  Bank  by 
permitting  Dreuil  &  .Company  to  withdraw 
the  documents  under  the  trust  receipts 
which  they  gave  to  the  Commercial  Bank; 
that  is,  that  as  the  cotton  came  into  the 
possession  of  Dreuil  &  Company,  the  equi- 
ties of  the  two  banks  are  equal,  and  the 
earlier  equity  should  prevail.  We  think 
that  this  contention  begs  the  question.  The 
Commercial  Bank  did  not  lose  its  riglits  by 
permitting  the  withdrawal  of  its  warehouse 
receipts  under  the  agreement  to  hold  for  its 
account,  any  more  than  the  CanaM^uisiana 
Bank  lost  its  rights  merely  by  the  with- 
drawal of  the  bills  of  lading  under  its  trust 
receipts.  It  was  because  the  Canal-Louisi- 
ana Bank  clothed  Dreuil  k  Company  with 
the  indicia  of  ownership  that  a  bona  fide 
purchaser  for  value  was  enabled  to  take 
title;  and  a  similar  result  would  have  fol- 
lowed if,  after  the  withdrawal  of  tlie  ware- 
house receipts  from  the  Commercial  Bank, 
there  had  been  a  like  n^otiation  by  Dreuil 
&  Company.  But  there  was  no  subsequent 
negotiation,  and  the  Commercial  [530] 
Bank,  in  the  absence  of  the  intervention  of  a 
purchaser  in  good  faith  for  value,  did  not 
lose  its  rights  by  the  agreement  under  which 
the  cotton  which  it  had  duly  acquired  was 
to  be  held  for  its  account.  There  is  no 
equality  of  equities,  for  it  was  through  the 
action  of  the  Canal -Louisiana  Bank  and  the 
apparent  ownership  it  created  in  Dreuil  & 
Company  that  the  Commercial  Bank  was  led 
to  advance  its  money  upon  the  faith  of  the 
documents  of  title. 

The  decree  is  reversed  and  the  cause  is 
remanded,  with  direction  to  enter  a  decree 
in  favor  of  the  appellant. 

It  is  so  orderei 
499 


I 


UNITED  STATES,  Appt. 

V. 

CECIL  D.  ROSS. 
(See  S.  C.  Reporter's  ed.  530-538.) 

Army  —  pay  of  private  —  extra  duty. 

A  private  in  the  Hospital  Corps  of 
the  United  States  Army,  whose  duties,  as 
defined  by  the  act  of  March  1,  1887  (24 
Stat,  at  I^  435,  chap.  311,  Comp.  SUt  1913, 
§  1819),  §  5,  as  amended  by  the  act  of 
July  13,  1892  (27  Stat,  at  L  120,  chap. 
162,  Comp.  Stat.  1913,  {  1824),  include 
those  of  ward  masters,  cooks,  nurses,  and 
attendants  in  hospitals,  and  ''such  other 
duties  as  may  by  proper  authority  be  re- 
quired of  them,"  cannot  be  said,  contrary 
to  the  practical  judgment  of  the  War  De- 
partment, to  have  beien  on  extra  duty  call- 
ing for  extra  pay  while  he  was,  under  verbal 
order  of  the  surgeon  commanding,  in  charge 
of  the  telegraph  and  telephone  office  in  the 

feneral    hospital    at   the   Presidio   of    San 
•"rancisco,  he  not  having  been  detailed  on 
extra  duty,  and  there  being  no  dear  abuse 
of  the  necessary  official  discretion  shown. 
[For  other  cases,  see  Army  and  Navy,  X^  in 
Digest  Sup.  Ct.  1908.1 

[No.  131.] 

Argued  December  10,  1915.    Decided  Janu- 
ary 10,  1010. 

APPEAL  from  the  Court  of  Claims  to  re- 
view an  award  of  extra  pay  of  a  pri- 
vate in  the  Hospital  Corps  of  the  United 
States  Army.    Reversed  and  remanded  with 
instructions  to  dismiss  the  petition. 
See  same  case  below,  49  Ct.  CI.  55. 
The  facts  are  stated  in  the  opinion. 

Assistant  Attorney  General  Thompson 
argued  the  cause,  and,  with  Mr.  George  M. 
Anderson,  filed  a  brief  for  appellant. 

Mr.  Charles  F.  Oonaaul  argued  the 
cause,  and,  with  Miss  Ida  M.  Moyers,  filed 
a  brief  for  appellee. 

Mr.  Justice  Hu^lid*  delivered  the  opin- 
ion of  the  court: 

Tlie  United  States  brings  this  appeal  from 
a  judgment  of  the  court  of  claims  award- 
ing to  Cecil  D.  Ross  the  sum  of  $303.45, 
as  extra  pay  while  he  was  in  charge  of  the 
telegraph  and  telephone  office  at  the  general 
hospital,  Presidio  of  San  Francisco.  49  Ct. 
CI.  55. 

The  facts  found  by  the  court  were  in  sub- 
stance as  follows:  The  claimant  enlisted  on 
April  25,  1900,  as  an  infantry  private  in 
the  United  States  Army;  he  was  trans- 
ferred to  the  Hospital  Corps,  and  on  No- 
vember 8,  1900,  to  the  general  hospital  at 
the  Presidio,  where  he  was  placed  in  charge 
of  the  telegraph  and  telephone  office  by 
verbal  order  of  the  surgeon  commanding; 

2Z9  U.  8. 


1915. 


UNITED  STATES  ▼.  BOSS. 


681-684 


and  he  performed  duties  accordingly,  save 
for  intervals  of  sickness,  until  he  was  dis- 
charged from  the  service  on  April  24,  1903, 
by  reason  of  the  expiration  of  his  term  of 
enlistment.  He  was  not  under  the  super- 
vision  of  anyone  connected  with  the  Signal 
Corps,  but  remained  under  the  orders  of  the 
medical  [532]  officer  in  command  at  the 
hospital.  No  pay  was  given  to  him  on 
account  of  his  services  as  telegrapher 
other  than  the  usual  pay  and  allow- 
ances of  a  private  in  the  Hospital  Corps. 
The  muster  rolls  in  the  hospital  show 
that  during  the  entire  period,  except  when 
sick,  he  was  reported  as  "telegraph  op- 
erator." These  muster  rolls,  "returns  from 
the  Hospital  Corps,"  passed  under  the 
review  of  the  detailing  and  command- 
ing officers  at  the  hospital,  and  in  due 
course  reached  the  War  Department.  An 
effort  was  made  by  the  hospital  authori- 
ties to  secure  the  detail  of  a  man  from 
the  Signal  Corps  in  the  place  of  the  claim- 
ant, but  failed.  During  the  time  that  the 
claimant  was  on  duty  at  the  hospital,  he 
was  excused  from  otlier  duties,  calls,  de- 
tails, and  inspection.  The  fact  that  he  was 
performing  duty  in  the  telegraph  and  tele- 
phone department  throughout  the  entire 
period,  as  stated,  was  personally  known  to 
the  major  and  surgeon  commanding.  The 
findings  also  set  forth  the  following  exhibit: 

U.  S.  A.  General  Hospital, 

Presidio,  San  Francisco,  Cal.,  November 
23,  1903. 

Respectfully  returned  to  Cecil  D.  Ross, 
late  private,  first  class.  Hospital  Corps, 
(J.  S.  A.,  Holly  Springs,  Miss.,  with  the  in- 
formation that  the  following  indorsement 
was  written  in  this  office  on  a  communica- 
tion from  the  Chief,  Record  and  Pension 
Office,  War  Department,  Washington,  D. 
C,  requesting  information  regarding  your 
detail  on  extra  duty  In  the  telegraph  office 
at  this  hospital: 

"U.  S.  A.  General  Hospital, 

"Presidio  of  S.  F.,  Cal.,  November  12, 
1903. 

"Respectfully  returned  to  the  Chief, 
Record  and  Pension  Office,  War  Depart- 
ment, Washington,  D.  C,  with  the  informa- 
tion that  Private  Cecil  D.  Ross,  Hospital 
Corps,  U.  S.  Army,  joined  at  this  hospital 
for  duty  Nov.  8,  1900,  and  was  discharged 
April  24,  1903,  by  reason  of  expiration  of 
term  of  enlistment. 

"He  was  on  duty  in  the  telephone  and 
telegraph  office  [533]  at  this  hospital  from 
Nov.  9,  1900,  until  date  of  discharge,  but  no 
printed  order  was  ever  issued  detailing  him 
on  extra  duty,  as  at  an  institution  of  this 
•0  L.  ed. 


kind  there  are  many  duties  to  be  performed, 
the  general  character  of  which  are  similar. 

"W.   P.   Kendall, 
"Major  and  Surgeon,  U.  S.  A.,  Command- 
ing." 

Although  no  order  was  issued  detailing 
you  on  extra  duty  in  the  telephone  and 
telegraph  office  at  this  hospital,  you,  never- 
theless, performed  this  duty  from  November 
9,  1900,  until  the  date  of  your  discharge. 

W.  P.  Kendall, 
Major  and  Surgeon,  U.  S.  Army,  Command- 
ing HospitaL 

The  government  insists  that  there  Is  no 
statutory  authority  for  extra-duty  pay  to 
enlisted  men  of  the  Medical  Department  of 
the  Army,  that  the  right  of  recovery  is 
denied  by  the  Army  Regulations  and  by 
statute,  and  that  the  claimant  did  not  per- 
form extra  duty. 

From  an  early  date,  provision  has  been 
made  for  the  payment  of  enlisted  men  on 
extra  duty  at  "constant  labor  of  not  less 
than  ten  days."  Acts  of  March  2,  1819, 
chap.  45,  3  Stat,  at  L.  488;  May  19, 
1846,  chap.  22,  9  Stat,  at  L.  14;  July  13, 
1866,  chap.  176, 14  Stat  at  L.  93,  Comp.  SUt. 
1913,  9  2168;  Feb.  1,  1873,  chap.  88,  17 
Stat,  at  L.  422,  Comp.  SUt.  1913,  9  2158; 
Rev.  Stat.  §  1287,  Comp.  Stat.  1U13,  9 
2158;  acts  of  July  5,  1884,  chap.  217,  23 
Stat,  at  L.  110,  Comp.  SUt.  1913,  9  0849; 
March  3,  1885,  chap.  339,  23  SUt.  at  L. 
359,  Comp.  SUt.  1913,  9  2159.  For  the 
present  purpose,  we  may  assume  that  the 
court  of  claims  correctly  construed  the  pro- 
visos of  the  appropriation  acU  of  July  5, 
1884,  and  March  3,  1885,  as  amendatory  of 
§  3287  of  the  Revised  SUtuUs  (Comp. 
SUt.  1913,  9  2158),  and  as  thus  having 
the  effect  of  providing  a  general  rule.  49 
Ct.  CI.  pp.  63*65.  See  Army  Regulations 
(1889)  163;  (1895)  165;  (190iy  183; 
(1904)  168;  (1908)  168;  (1910)  169;  (1913) 
170;  14  Comp.  Dec.  p.  153;  15  Comp.  Dec. 
p.  375.  The  applicable  clause,  in  this 
view,  of  the  act  of  1885,  provides  that 
"such  extra-duty  pay  hereafter  shall  be 
at  the  rate  of  fifty  cehU  per  day  for  me- 
chanics, artisans,  school -Uachers,  and  clerks 
at  [534]  Army,  division,  and  department 
headquarters,  and  thirty-five  cenU  per  day 
for  other  clerks,  teamsters,  laborers,  and 
other  enlisted  men  on  extra  duty." 

The  regulation  in  force  at  the  time  in 
question — to  which  the  government  refers 
as  denying  the  right  of  recovery — sUtes 
that  "enlisted  men  of  the  several  sUff 
departmenU  will  not  be  detailed  on  extra 
duty  without  authority  from  the  Secretary 
of  War.  They  are  not  entitled  to  extra- 
duty  pay  for  services  rendered  in  their 
respective    departments."      Army    Regula- 


SS4-«86 


SUPREMB  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbmi 


tions  (1895J  167;  (1901)  185.  And  the 
statute  which  the  governgnent  cites  (Rev. 
Stat.  9  1235,  Comp.  Stat.  1913,  §,2007) 
provides  that  detail  for  employment  in 
"constant  labor"  shall  be  "only  upon  the 
written  order  of  a  commanding  officer,  when 
such  detail  is  for  ten  or  more  days."  We 
agree  with  the  contention  of  the  claimant 
that  the  regulation  can  have  force  only  so 
far  as  it  may  be  deemed  to  be  in  accord 
with  the '  acts  of  Congress ;  and  we  may 
assume  in  deciding  the  present  case,  as  was 
held  by  the  court  below,  that  §  1235  of 
the  Revised  Statutes  was  not  intended  to 
preclude  a  recovery  of  extra-duty  pay  where 
there  had  been  a  detail  to  extra  duty  by 
competent  authority,  although  not  in 
writing,  and  extra  duty  entitling  the  en- 
listed man  to  extra  pay  under  the  statute 
had  actually  been  performed. 

But  the  question  remains  whether  'the 
claimant  did  perform  "extra  duty."  The 
term  is  obviously  a  relative  one;  and  it 
cannot  be  determined  that  the  enlisted  man 
was  performing  extra  duty  without  a  com- 
plete understanding  of  the  scope  of  the 
duties  which  he  might  properly  be  expect- 
ed to  perform  in  accordance  with  his  en- 
listment without  receiving  extra  pay. 
What  might  be  extra  duty  in  the  case  of 
men  of  the  line  might  not  be  extra  duty  in 
the  case  of  men  in  the  staff  departments. 
The  claimant  had  been  transferred  to  the 
Hospital  Corps;  by  that  transfer  he  be- 
came a  member  of  that  Corps  and  bound  to 
perform,  without  extra  pay,  any  of  the 
duties  which  perUined  to  that  [535]  ser- 
vice. The  act  of  March  1,  1887,  chap.  311 
(24  SUt.  at  L.  435,  Comp.  Stat.  1913,  i 
1819),  organizing  the  Hospital  Corps,  defin- 
ing its  duty,  and  fixing  the  pay  of  its  mem- 
bers (as  amended  by  the  act  of  July  13, 
1892,  chap.  162,  27  Stat,  at  L.  120,  Comp. 
Stat.  1913,  §  1824),  provides:    . 

"That  the  Hospital  Corps  of  the  United 
States  Army  shall  consist  of  hospital  stew- 
ards, acting  hospital  stewards,  and  pri- 
vates; and  all  necessary  hospital  services 
in  garrison,  camp,  or  field  (including  ambu- 
lance service)  shall  be  performed  by  the 
members  thereof,  who  shall  be  regularly 
enlisted  in  the  military  service;  said 
Corps  shall  be  permanently  attached  to 
the  Medical  Department,  and  shall  not  be 
included  in  the  effective  strength  of  the 
Army  nor  counted  as  a  part  of  the  enlist- 
ed force  provided  by  law. 

"Sec.  2.  That  the  Secretary  of  War  is 
empowered  to  appoint  as  many  hospital 
stewards  as,  in  his  judgment,  the  service 
may  require;  but  not  more  than  one  hos- 
pital  steward   shall   be   stationed   at   any 


post  or  place  without  special  authority  of 
the  Secretary  of  War. 

"Sec.  5.  That  the  SecreUry  of  War  is 
empowered  to  enlist,  or  cause  to  be  en- 
listed, as  many  privates  of  the  Hospital 
Corps  as  the  service  may  require,  and  to 
limit  or  fix  the  number,  and  make  sueh 
regulations  for  their  government  as  may 
be  necessary;  and  any  enlisted  man  In 
the  Army  shall  be  eligible  for  transfer  to 
the  Hospital  Corps  as  a  private.  They 
shall  perform  duty  as  ward  masters,  cooks, 
nurses,  and  attendants  in  hospitals,  and 
as  stretcher  bearers,  litter  bearers,  and  am- 
bulance attendants  in  the  field,  and  such 
other  duties  as  may  by  proper  authority 
be  required  of  them. 

"Sec.  6.  That  the  pay  of  privates  of  the 
Hospital  Corps  shall  be  eighteen  dollars 
per  month,  with  the  increase  on  account 
of  length  of  service  as  is  now  or  may 
hereafter  be  allowed  by  law  to  other  en- 
listed men.  They  shall  be  entitled  to  the 
same  allowance  as  a  corporal  of  the  arm 
of  service  with  which  they  may  be  on  duty." 

[536]  The  Army  Regulations  of  1895 
contained  the  following: 

"1433.  General  hospitals  will  be  under 
the  exclusive  control  of  the  Surgeon-Gen- 
eral and  will  be  governed  by  such  reguli^ 
tions  as  the  Secretary  of  War  may  pre- 
scribe.   .     .     . 

"1435.  The  senior  surgeon  is  charged 
with  the .  management  and  is  responsible 
for  the  condition  of  the  post  hospital,  which 
will  be  at  all  times  subject  to  inspection  bj 
the  commanding  officer.     .     .     . 

"1436.  The  surgeon  of  the  post  will 
assign  his  assistants  and  the  members  of 
the  Hospital  Corps  to  duty,  and  report 
them  on  the  muster  rolls  in  the  capacity 
in  which  they  are  serving.     .  ." 

See  Army  Regulations  (1901)  1C21,  1628, 
1629;    (1913)    1439,  1447,  1448. 

It  cannot  be  doubted  that  it  was  the  in- 
tention that  the  members  of  the  Hospital 
Corps  should  perform,  for  the  stated  pay, 
all  the  duties  that  are  properly  incident 
to  the  conduct  of  hospitals  as  efficient  in- 
strumentalities. The  act  provides  that  the 
privates  "shall  perform  duty  as  ward  mas- 
ters, cooks,  nurses,  and  attendants  in  hos- 
pitals .  .  .  and  such  other  duties  as 
may  by  proper  authority  be  required  of 
them."  We  know  of  no  way  of  defining 
these  "other  duties"  except  by  reference 
to  what  may  be  reasonably  demanded  in 
the  conduct  of  a  fully  equipped  hospital, 
considered  as  an  administrative  unit,  in- 
cluding all  that  is  required  in  its  varied 
work.  Telephone  service  may  well  be  re- 
garded as  essential  to  the  convenient  eon- 
duct  of  a  properly  managed  institution  of 

2S9  U.  S. 


191& 


MOSS  V.  RAMEY. 


536-538 


tliis  sort.  With  a  correct  understanding 
of  its  needs  that  facility  may  be  deemed 
to  be  BO  less  incidental  to  the  hospital  service 
tiian  attendance  at  the  door,  or  in  the  re- 
ception room,  or  in  connection  with  the 
offices  of  administration.  And  if,  in  the 
practical  judgment  of  the  military  author- 
ities, the  efficient  management  of  a  gen- 
eral hospital  requires  the  maintenance  of 
both  a  telephone  [537]  and  telegraph  office, 
we  know  of  no  ground  for  saying  that  mem- 
bers of  the  Corps  who  are  assigned  to  this 
duty  as  a  part  of  the  current  work  of  the  es- 
tablishment are  any  more  entitled  to  extra 
pay  than  they  would  be  in  any  other  of 
the  numerous  aetivities  which  the  success- 
ful administration  of  the  hospital  may  de- 
mand. 

Certainly,  the  question  was  one  calling 
in  the  first  instance  for  the  practical  judg- 
ment of  the  Department.  Numerous  regu- 
lations, for  a  very  long  period  of  years, 
hare  shown  the  desire  to  prevent  abuses 
in  the  service  by  unwarranted  details  to 
''extra  duty"  as  a  basis  for  extra  pay.  The 
regulation,  above  quoted,  that  enlisted 
men  of  the  several  staff  departments  will 
not  be  detailed  on  extra  duty  without  au- 
thority from  the  Secretary  of  War,  is 
significant  in  this  aspect.  In  the  conduct  of 
an  institution  like  a  general  hospital,  where 
Congress  has  provided  that  all  necessary 
services  shall  be  performed  by  the  members 
of  the  Hospital  Corps,  there  is  every  reason 
for  caution,  and  for  the  exercise  of  careful 
official  judgment,  in  determining  whether  a 
particular  case  justifies  or  requires  a  detail 
on  "extra  duty."  It  is  said  that  the  au- 
thorities in  the  present  instance  endeav- 
ored to  secure  the  detail  of  a  member  of  the 
Signal  Corps  for  the  duty  in  question,  but 
dearly  we  may  not  infer  from  the  failure 
to  obtain  such  assistance  from  the  outside 
that  the  service  was  not  regarded  as  with- 
in the  scope  of  the  duties  which  members  of 
the  Hospital  Corps  might  properly  be  re- 
quired to  perform.  The  inference  is  to  the 
contrary. 

The  judgment  of  the  Department  was 
that  the  claimant  was  not  on  extra  duty. 
He  was  not  in  fact  assigned  on  extra  duty; 
there  was  no  such  detail  in  accordance  with 
the  regulations  or  the  statute  as  there 
should  have  been  if  he  was  considered  to 
be  on  extra  duty.  And,  in  the  only  official 
report  relative  to  the  matter,  it  appears 
that  "no  printed  order  was  ever  issued  de- 
tailing him  on  extra  duty,  as  at  an  insti- 
tution of  this  kind  there  are  many  [538] 
duties  to  be  performed,  the  general  charac- 
ter of  which  are  similar.** 

We  are  asked  to  overrule  this  depart- 
mental judgment,  and  to  take  this  service 
out  of  the  broad  description  of  the  statute 
••  L.  ed. 


relating  to  the  duties  of  members  of  the 
Hospital  Corps.  We  find  no  basis  for  such 
action.  On  the  contrary,  we  cannot  es- 
cape the  conclusion  that,  in  view  of  the 
provisions  of  the  act  of  Congress  and  of 
the  authorized  regulations  with  respect  to 
the  conduct  of  military  hospitals,  we  are 
not  at  liberty  to  say  that  extra-duty  pay 
has  been  earned  in  connection  with  service 
therein — where  there  was  no  detail  on  ex- 
tra duty — unless  there  is  a  clear  abuse  of 
the  necessary  official  discretion.  No  such 
abuse  is  shown  here. 

The  judgment  of  the  court  below  is  re- 
versed and  the  cause  remanded,  with  direc- 
tion to  dismiss  the  claimant's  petition. 

It  is  so  ordered. 


ALBERT  B.  MOSS  et  al.,  Plffs.  in  Err., 

v. 

ALFRED  H.  RAMET. 
(See  8.  C.  Reporter's  ed.  538-547.) 

EMdence  —  presumption  —  omlssloii  of 
island  from  government  survey. 

1.  There  is  no  room  for  any  iuference 
that  an  island  was  not  in  existence  at  the 
time  of  a  government  survey  because  the 
field  notes  and  plat  make  no  mention  of  it, 
or  that,  if  there,  it  was  a  mere  sand  bar, 
or  of  inconsiderable  area  and  value,  whore 
such  island  contains  about  120  acres,  lias 
banks  rising  abruptly  above  the  water,  is 
of  stable  formation,  has  a  natural  growth 
of  grass  and  of  trees  suitable  for  firewood, 
and  has  evidently  been  in  its  present  condi- 
tion since  long  before  the  survey. 

(For  other  cases,    wc  Evidence,    II.   L   8.    In 
Dlf^est   Sup.   Ct  1908.] 

Public  lands  —  survey  —  errors. 

2.  The  errors  of  the  government  sur- 
veyor in  failing  to  extend  the  survejr  over 
an  island  in  a  navigable  stream  did  not 
make  it  any  the  less  a  part  of  the  public 
domain. 

(For  other  cases,    see  Public  Lands,    I.  e,   4, 
In  Digest  Sop.  Ct.  1906.] 

Waters  —  relative  rights  of  state  and 
United  States  —  Islands. 

3.  A  large  island  on  the  Idaho  side  of 
the  Snake  river, — a  navigable  stream, — 
being  In  existence  when   Idaho   became  a 

Noiv. — On  error  in  surveys  and  descrip- 
tions in  patents — see  note  to  Watts  v.  Lind- 
sey,  6  L.  ed.  U.  S.  423. 

On  government  grant  bounded  by  water 
as  carrying  title  to  islands  therein — see  note 
to  United  States  v.  Chandler-Dunbar  Water 
Power  Co.  52  L.  ed.  U.  S.  881. 

On  title  to  islands,  generally — see  notes 
to  Holman  v.  Hodges,  58  L.RJI.  673,  and 
Wilson  V.  Watson,  35  LJtJL(N.S.)   227. 

On  what  questions  the  Federal  Supreme 
Court  will  consider  in  reviewing  the  judg- 
ments of  state  courts — see  note  to  Missouri 
ex  rel.  Hill  t.  Dockery,  63  L.RJL  571. 

42S 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TkBM, 


state,  did  not  pass  to  the  state  upon  ad- 
mission to  statdiood,  or  come  witnin  tiie 
disposing  influence  *  of  its  laws,  but  re- 
mained the  property  of  the  United  States, 
subject  to  disposal  by  it. 
[For  other  cases,  tee  Waters,  I.  b,  8,  la 
Digest  Sap.  Ct  1908.] 

Waters  —  title     to     Island  —  Federal 
ffrant. 

4.  Patents  for  fractional  lots  on   the 

east  bank  of  the  Snake  river — a  navigable 

stream  forming  the  boundary  between  Idaho 

and  Oregon — do  not  embrace  an  island  lying 

between  such  lots  and  the  thread  of  the 

stream. 

[For  other  cases,  see  Waters,  I.  d,  4:  Bound- 
aries,   IV.  b.    in  Digest  Sup.  Ct.  190S.] 

Error  to  state  court  —  scope  of  review 
—  local  law. 

6.  Whether  or  not  a  state  appellate 
court  may  alter  or  correct  its  interlocutory 
decision  upon  the  first  ap[>ea]  when  the 
same  case,  with  the  same  parties,  comes 
iKsfore  it  again,  is  a  question  of  local  law 
upon  which  the  decision  of  the  highest  court 
of  the  state  controls  the  Federal  Supreme 
Court. 

[For  other  cases,   see  Appeal  and  Error,  tMB- 
«»«<    in  Digest  Sop.  (ft   1908.] 


[No.  61.] 

Argued  December  9,   1915.     Decided   Jan- 
uary 10,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Idaho  to  review  a  decree  which, 
on  a  second  appeal,  reversed  a  decree  of  the 
District  Court  of  Canyon  County,  in  that 
state,  in  favor  of  plaintiffs  in  a  suit  to  quiet 
title,  and  remanded  the  cause  with  a  direc- 
tion to  dismiss  it.    Affirmed. 

See  same  case  below  on  first  appeal,  14 
Idaho,  598,  95  Pae.  513;  on  second  appeal, 
25  Idaho,  1,  136  Pac.  608. 

The  facts  are  stated  in  the  opinion. 

Mr.  Oliver  O.  Haga  argued  the  cause, 
and,  with  Messrs.  James  H.  Richards  and 
McKeen  F.  Morrow,  filed  a  brief  for  plain- 
tiffs in  error: 

When  land  patented  by  the  United  States 
government  under  the  public  laws  is  shown 
hj  the  official  plat  of  the  survey  as  border- 
ing on  a  fresh  water  river,  the  body  of  water 
whose  margin  is  meandered  is  the  true 
boundary,  and  not  the  meander  line. 

Hardin  v.  Jordan,  140  U.  S.  371,  380, 
35  L.  ed.  428,  432,  11  Sup.  Ct.  Rep.  808, 
838;  St.  Clair  County  v.  Lovingston,  23 
Wall.  46,  23  L.  ed.  59;  Mitchell  v.  Smale, 
140  U.  S.  406,  35  L.  ed.  442,  11  Sup.  Ct. 
Rep.  810,  840;  St.  Paul  &  P.  R.  Co.  v. 
Schurmeir,  7  Wall.  272,  19  L.  ed.  74; 
Jefferis  v.  East  Omaha  Land  Co.  134  U. 
S.  178,  38  L.  ed.  872,  10  Sup.  Ct.  Rep.  518; 
Middleton  v.  Pritchard,  4  Dl.  514,  38  Am. 
Dec.  112;  Houck  v.  Yates,  82  111.  170; 
Fuller  y.  Dauphin,  124  111.  542,  7  Am.  St. 


Rep.  388,  16  N.  E.  917;  Knudsen  v.  Oman- 
son,  10  Utah,  124,  37  Pac.  250. 

One  of  the  important  rights  of  a  ripariaa 
owner  is  access  to  the  navigable  part  of  a 
river  from  the  front  of  his  land. 

St  Louis  V.  Ruts,  138  U.  S.  226,  247,  34 
L.  ed.  941,  949,  11  Sup.  Ct  Rep.  337; 
Dutton  V.  Strong,  1  Black,  23,  17  L.  ed. 
29;  St  Paul  ft  P.  R.  Co.  v.  Schurmeir, 
7  WalL  272,  19  L.  ed.  74;  Yates  v.  Mil- 
waukee, 10  Wall.  497,  503,  19  L.  ed.  984, 
986. 

When  land  is  bounded  by  a  river,  the 
water  is  appurtenant  to  the  land,  and  con- 
stitutes one  of  the  advantages  of  its  situa- 
tion, and  a  material  part  of  its  value,  and 
enters  largely  into  the  consideration  for 
acquiring  it;  and  for  the  government  to 
later  survey  and  dispose  of  the  strips  of 
land  that  were  left  between  the  meander 
line  and  the  body  of  water  purporting  to 
have  been  meandered  is  an  injustice  to  the 
original  entryman  or  patentee  who  acquired 
the  meandered  lots  under  the  belief  that 
they  extended  to  the  river  or  other  body  of 
water,  and  a  resurvey  and  sale  of  such  land 
should  not  be  permitted  except  in  case  of 
fraud  or  palpable  mistake  in  the  original 
survey. 

Mitchell  V.  Smale,  140  U.  S.  406,  35 
L.  ed.  442,  11  Sup.  Ct.  Rep.  819,  840; 
Lamprey  v.  State,  52  Minn.  181,  18  L.RJL 
670,  38  Am.  St.  Rep.  541,  53  N.  W.  1139; 
Hardin  v.  Jordan,  140  U.  S.  371,  35  L. 
ed.  428,  11  Sup.  Ct  Rep.  808,  838;  Knud- 
sen V.  Omanson,  10  Utah,  124,  37  Pac.  250; 
Grand  Rapids  &  I.  R.  Co.  v.  Butler,  160 
U.  S.  87,  40  L.  ed.  85,  15  Sup.  Ct.  Rep.  901; 
Chandos  v.  Mack,  77  Wis.  573,  10  L.R.A. 
207,  20  Am.  St.  Rep.  139,  46  N.  W.  803. 

Except  in  cases  of  omission  by  accident, 
fraud,  or  palpable  mistake,  the  United 
States  has  no  authority  to  make  surveys, 
subsequent  to  patent  to  the  upland,  of  any 
land  between  the  meander  line  and  the 
body  of  water  purporting  to  have  been 
meandered  in  the  original  survey. 

St.  Paul  k  P.  R.  Co.  V.  Schurmeir,  7 
Wall.  272,  289,  19  L.  ed.  74,  78;  Hardin 
V.  Jordan,  140  U.  S.  371,  383,  35  L.  ed. 
428,  433,  11  Sup.  Ct.  Rep.  808,  838;  Mitchell 
V.  Smale,  140  U.  S.  406,  412,  413,  35  L.  ed. 
442,  444,  445,  11  Sup.  Ct.  Rep.  819,  840; 
Moore  v.  Robbins,  06  U.  S.  530,  533,  24 
L.  ed.  848,  850;  Franzini  v.  Layland,  120 
Wis.  72,  97  N.  W.  499;  Davis  v.  Wiebold, 
139  U.  S.  507,  35  L.  ed.  238,  11  Sup.  Ct. 
Rep.  628;  Grand  Rapids  k  I.  R.  Co.  ▼. 
Butler,  159  U.  S.  87,  40  L.  ed.  85,  15  Sup. 
Ct.  Rep.  991;  St  Louis  Smelting  k  Ref. 
Co.  V.  Kemp,  104  U.  S.  636,  646,  26  L.«ed. 
875,  878,  11  Mor.  Min.  Rep.  673;  Lindsay 
V.  Hawes,  2  Black,  554,  560,  561,  17  L.  ed. 

2S9  V.  8. 


]»15. 


MOSS  y.  RAMEY. 


265,  268;  Cragin  t.  Powell,  128  U.  8.  691, 
32  L.  ecL  566,  9  Sup.  Ct.  Rep.  203;  Webber 
T.  Pere  Marquette  Boom  Co.  62  Mich.  635, 
30  N.  W.  469;  Sliufeldt  t.  Spaulding,  37 
Wis.  662 ; .  SUte  v.  Lake  St.  Clair  Fiahing 
k  Shooting  Club,  127  Mich.  587,  87  N.  W. 
117. 

Where  the  government  haa  never  com- 
plained of  either  fraud  or  mistake  in  the 
original  Bnrrey,  a  squatter  on  land  between 
the  meander  line  and  the  water  cannot  be 
heard  to  complain  that  the  government  has 
parted  with  title  to  a  larger  acreage  than 
it  received  pay  for,  and,  as  between  such 
squatter  and  the  riparian  owner,  the  latter 
has  the  better  title. 

WhiUker  v.  McBride,  197  U.  8.  510,  40 
L.  ed.  857,  25  Sup.  Ct  Rep.  530. 

Where  a  survey  and  patent  show  a  river 
to  be  one  of  the  boundaries  of  the  tract, 
it  is  a  legal  deduction  that  there  is  no 
vacant  land  left  for  appropriation  between 
the  river  and  the  river  boundary  of  such 
tract. 

St.  Clair  County  v.  Lovingston,  23  Wall. 
46,  23  L.  ed.  59;  Churchill  v.  Grundy,  5 
Dana,  100;  Jeiferis  v.  East  Omaha  Land 
Co.  134  U.  S.  190,  33  L.  ed.  876,  10  Sup. 
Ct.  Rep.  518;  St  Louis  v.  Rutz,  138  U. 
S.  243,  34  L.  ed.  048,  11  Sup.  Ct.  Rep. 
337;  Ross  v.  Faust,  54  Ind.  475,  23  Am. 
Rep.  655;  Turner  v.  Parker,  14  Or.  341,  12 
Pac.  496. 

Where  surveys  have  been  made  and  lands 
entered  in  reliance  upon  the  decisions  of 
this  court  that  the  riparian  owner  took  to 
the  water  purporting  to  have  been  mean- 
dered, such  decisions  will  be  held  to  con- 
stitute rules  of  property,  and  the  riparian 
owner  will  be  protcKsted  accordingly. 

The  claim  that  the  land  in  controversy 
was  still  part  of  the  public  domain  was  not 
raised  in  the  trial  court  on  the  second 
trial,  and  the  supreme  court  of  Idaho  had 
no  power  to  reverse  that  court  and  deter- 
mine that  it  was  public  land,  and  that  title 
had  not  passed  to  plaintiffs  in  error. 

Lamkin  v.  Sterling,  1  Idaho,  123;  Miller 
V.  Donovan,  11  Idaho,  545,  83  Pac.  608; 
Medbury  v.  Maloney,  12  Idaho,  634,  88 
Pac  81;  Marysville  Mercantile  Co.  v.  Home 
F.  Ins.  Co.  21  Idaho,  377,  121  Pac.  1026; 
Pomeroy  v.  Qordan,  25  Idaho,  279,  137  Pac. 
888. 

The  action  of  the  supreme  court  in  going 
entirely  outside  the  record  to  determine  that 
the  land  in  controversy  was  public  land,  and 
that  title  had  not  passed  to  plaintiffs  in 
error,  was  a  denial  of  the  equal  protection 
of  the  laws  and  of  due  process  of  law. 

5  Ene.  U.  S.  Sup.  Ct.  Rep.  618. 

Where  a  question  necessary  for  the  de- 
termination of  a  case  has  been  presented 
•0  L.  ed. 


to  and  decided  by  an  appellate  court,  such 
decision  becomes  the  law  of  the  case  in  all 
subsequent  proceedings  in  the  same  action, 
and  is  a  final  adjudication,  from  the  con- 
sequences of  which  the  court  cannot  de- 
part nor  the  parties  relieve  th^nselves. 

Westerfield  v.  New  York  L.  Ins.  Co.  157 
Cal.  339,  107  Pac  699;  Lindsay  v.  Peo- 
ple, 1  Idaho,  438;  Hall  v.  Blackman,  9 
Idaho,  555,  75  Pac.  608;  Hunt^  v.  Porter, 
10  Idaho,  86,  77  Pac.  439;  Steve  v.  Bon- 
ners  Ferry  Lumber  Co.  13  Idaho,  394,  92 
Pac.  363;  Gerber  v.  Nampa  k  M.  Irrig. 
Dist  19  Idaho,  765,  116  Pac  104;  Nampa 
V.  Nampa  k  M.  Irrig.  Dist.  23  Idaho,  422, 
131  Pac  8;  Himely  v.  Rose^  5  Cranch,  318, 
3  L.  ed.  Ill;  Skillem  v.  May,  6  Cranch, 
267,  3  L.  od.  220;  Martin  v.  Hunter,  1 
Wheat  304,  374,  4  L.  ed.  97,  114;  Browder 
V.  M'Arthur,  7  Wheat  58,  5  L.  ed.  397; 
The  SanU  Maria,  10  Wheat  431,  6  L.  ed. 
359 ;  Sibbald  v.  United  States,  12  Pet  488, 
9  L.  ed.  1167;  Washington  Brid;;e  Co.  v. 
Stewart,  3  How.  413,  11  L.  ed.  658;  Siser  v. 
Many,  16  How.  98,  14  L.  ed.  861;  Roberts  v. 
Cooper,  20  How.  467,  15  L.  ed.  969;  Cook 
V.  Burnley  (Cook  v.  Porter)  11  Wall.  672, 
20  L.  ed.  84;  Tyler  v.  Maguire,  17  Wall. 
253,  294,  21  L.  ed.  576,  587 ;  Wayne  County 
V.  Kennicott,  94  U.  S.  498,  24  L.  ed.  260; 
The  Lady  Pike  (Pearce  v.  Germania  Ins. 
Co.)  96  U.  S.  461,  24  L.  ed.  672;'  Ames  v. 
Quimby,  106  U.  S.  342,  27  L.  ed.  100,  1 
Sup.  Ct.  Rep.  116;  Clark  v.  Keith,  106  U. 
S.  464,  27  L.  ed.  302,  1  Sup.  Ct.  Rep.  568; 
Chaffin  V.  Taylor,  116  U.  S.  567,  29  L.  ed. 
727,  6  Sup.  Ct.  Rep.  518;  Barney  v.  Winona 
k  St  P.  R.  Co.  117  U.  S.  231,  29  L.  ed. 
859,  6  Sup.  Ct.  Rep.  654;  Gaines  v.  Rugg 
(Gaines  v.  Caldwell)  148  U.  S.  228,  37  L. 
ed.  432,  13  Sup.  Ct.  Rep.  611;  Re  San- 
ford  Fork  k  Tool  Co.  160  U.  S.  247,  40 
L.  ed.  414,  16  Sup.  Ct.  Rep.  291;  Great 
Western  Teleg.  Co.  v.  Burnham,  162  U.  S. 
330,  40  L.  ed.  991,  16  Sup.  Ct.  Rep.  850; 
Thompson  v.  Maxwell  Land  Grant  k  R. 
Co.  168  U.  S.  451,  456,  42  L.  ed.  539,  541, 
18  Sup.  Ct.  Rep.  121;  Illinois  v.  Illinois  C. 
R.  Co.  184  U.  S.  77,  46  L.  ed.  440,  22  Sup. 
Ct  Rep.  300;  United  States  v.  Camou,  184 
U.  8.  572,  46  L.  ed.  694,  22  Sup.  Ct.  Rep. 
505;  Mutual  L.  Ins.  Co.  v.  Hill,  193  U. 
S.  551,  48  L.  ed.  788,  24  Sup.  Ct  Rep.  538; 
Richardson  v.  Ainsa,  218  U.  S.  289,  54  L. 
ed.  1044,  31  Sup.  Ct.  Rep.  23;  Balch  v. 
Haas,  20  C.  C.  A.  151,  36  U.  S.  App.  693, 
73  Fed.  974;  Hal^  v.  Kirkpatrick,  44  C. 
C.  A.  102,  104  Fed.  647;  Montena  Min. 
Co.  V.  St.  Louis  Min.  k  Mill.  Co.  78  C.  C. 
A.  33,  147  Fed.  897;  Taenzer  v.  Chicago, 
R.  I.  &  P.  R.  Co.  112  C.  C.  A.  153,  191 
Fed.  543. 

This  rule  applies  regardless  of  whether 

49' 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


the  previous  decision  is  right  or  wrong,  and 
is  a  limitation  on  the  court's  power,  and 
not  a  mere  rule  of  practice. 

Washington  Bridge  Co.  v.  Stewart,  3  How. 
413, 11  L.  ed.  658;  ChafiSn  v.  Taylor,  116  U. 
S.  567,  29  L.  ed.  727,  6  Sup.  Gt.  Rep.  518; 
Sibbald  ▼.  United  States,  12  Pet.  488,  493, 

9  L.  ed.  1167, 1169;  Gaines  v.  Rugg  (Gaines 
V.  Caldwell)  148  U.  S.  228,  37  L.  ed.  432, 
13  Sup.  Ct.  Rep.  611;  Tyler  ▼.  Maguire, 
17  Wall.  253,  21  L.  ed.  576;  IllinoU  v. 
Illinois  C.  R.  Co.  184  U.  S.  77,  46  L.  ed. 
440,  22  Sup.  Ct.  Rep.  300;  United  States 
V.  Camou,  184  U.  S.  572,  46  L.  ed.  694, 
22  Sup.  Ct.   Rep.  505;   Hunter  v.  Porter, 

10  Idaho,  86,  77  Pac.  439;  Leese  v.  Clark, 
20  Cal.  416. 

The  cases  from  this  court,  relied  upon  by 
the  supreme  court  of  Idaho  to  justify  its 
departure  from  the  rule  of  law  of  the  case, 
do  not  sustain  its  action. 

United  States  v.  Denver  &  R.  G.  R.  Co. 
191  U.  S.  84,  48  L.  ed.  106,  24  Sup.  Ct. 
Rep.  33;  Zeckendorf  v.  Steinfeld,  225  U. 
S.  445,  56  L.  ed.  1156,  32  Sup.  Ct.  Rep. 
728;  Messenger  v.  Anderson,  225  U.  S.  436, 
56  L.  ed.  1152,  32  Sup.  Ct.  Rep.  739;  Chesa- 
peake &  O.  R.  Co.  V.  McCabe,  213  U.  S. 
207,  53  L.  ed.  765,  29  Sup.  Ct.  Rep.  430; 
Kiug  V.  West  Virginia,  216  U.  S.  92,  54 
L.  ed.  396,  30  Sup.  Ct.  Rep.  225;  Reming- 
ton V.  Central  P.  R.  Co.  198  U.  S.  95,  49 
L.  ed.  959,  25  Sup.  Ct.  Rep.  577;  Great 
Western  Teleg.  Co.  v.  Bumham,  162  U.  S. 
339,  40  L.  ed.  991,  16  Sup.  Ct.  Rep.  850; 
Northern  P.  R.  Co.  v.  Ellis,  144  U.  S. 
458,  36  L.  ed.  504,  12  Sup.  Ct.  Rep.  724; 
Tyler  v.  Magwire,  17  Wall.  253,  294,  21 
L.  ed.  576,  587. 

The  rule  of  law  of  the  case  applies  to 
intermediate  appellate  courts  and  to  the 
highest  courts  of  a  state  where  Federal 
questions  are  involved,  and  if,  pending  a 
second  appeal,  the  rule  of  law  on  which  such 
a  decision  was  based  is  changed  by  a  higher 
court,  the  lower  court  has  no  power  to 
reverse  or  modify  its  ori(?inal  decree. 

Silva  V.  Pickard,  14  Utah,  245,  47  Pac. 
144;  District  of  Columbia  v.  Brewer,  32 
App.  D.  0.  388;  Ogle  v.  Turpin,  8  111.  App. 
453;  Herr  v.  Graden,  22  Colo.  App.  511, 
127  Pac.  319;  State  y.  Bank  of  Commerce, 
96  Tenn.  591,  36  S.  W.  719. 

Under  the  laws  of  Idaho,  the  remittitur 
from  the  supreme  court  went  down  twenty 
days  after  the  decision  on  the  first  ap- 
peal, and  as  such  decision  construed  a 
Federal  grant  and  determined  the  rights 
of  plaintiffs  in  error  to  the  land  in  con- 
troversy, the  Judgment  of  that  court  be- 
came final  upon  the  expiration  of  the  two 
years  allowed  for  issuance  of  writ  of  error 
from  this  court,  and  the  Idaho  supreme 
428 


court  was  without  power  on  a  subsequent 
appeal,  &ye  years  later,  to  reverse  such 
judgment,  and  its  action  in  doing  so  im- 
pairs a  vested  right  under  such  Federal 
grant. 

Moss  V.  Ramey,  14  Idaho,  598,  95  Pac. 
513,  25  Idaho,  1,  136  Pac.  608. 

llie  findings  of  the  trial  court  on  the 
issue  of  adverse  possession  were  conclusive, 
both  on  this  court  and  the  state  supreme 
court;  and  the  Federal  questions  in  this 
case  being  decisive  of  the  whole  controversy, 
this  court,  if  it  finds  the  decision  of  the 
state  court  on  such  questions  erroneous, 
should  order  the  afllrmance  of  the  decision 
of  the  trial  court. 

Waters-Pierce  Oil  Co.  v.  Texas,  212  U. 
S.  86,  53  L.  ed.  417,  29  Sup.  Ct.  Rep. 
220;  Robertson  v.  Moore,  10  Idaho,  115, 
77  Pac.  218;  Mellen  v.  Great  Western  Beet 
Sugar  Co.  21  Idaho,  353,  122  Pac.  30,  Ann. 
Cas.  1913D,  621;  Weeter  Lumber  Co.  v. 
Fales,  20  Idaho,  255,  118  Pac.  289,  Ann. 
Cas.  1913A,  403;  Miller  v.  Blunck,  24 
Idaho,  234,  133  Pac.  383;  Murdock  v.  Mem- 
phis, 20  Wall.  590,  642,  22  L.  ed.  429, 
446;  Fairfax  v.  Hunter,  7  Cranch,  603, 
628,  3  L.  ed.  453,  461;  Martin  v.  Hunter, 
1  Wheat.  304,  323,  362,  4  L.  ed.  97,  102, 
111;  Tyler  v.  Magwire,  17  Wall.  253,  293, 
21  L.  ed.  576,  586;  Stanley  v.  Schwalby, 
162  U.  S.  255,  283,  40  L.  ed.  960,  970,  16 
Sup.  Ct.  Rep.  754. 

As  between  a  riparian  owner  and  a 
squatter,  the  former  has  the  better  title 
to  land  between  the  meander  line  and  the 
water's  edge,  where*  the  government  sur- 
vey shows  the  riparian  land  as  bordering 
on  the  water. 

WhiUker  v.  McBride,  197  U.  S.  610, 
49  L.  ed.  857,  25  Sup.  Ct.  Rep.  530. 

Decisions  on  the  binding  effect  of  gov- 
ernment surveys  nnd  rights  of  riparian 
owners  are  rules  of  property. 

St.  Paul  &  P.  R.  Co.  V.  Schurmeir,  7 
Wall.  272,  289,  19  L.  ed.  74,  78;  St.  Clair 
County  V.  Lovingston,  23  Wall.  46,  23 
L.  ed.  59;  Cragin  v.  Powell,  128  U.  S. 
691,  32  L.  ed.  566,  9  Sup.  Ct.  Rep.  203; 
Jefferis  v.  East  Omaha  Land  Co.  134  U.  S. 
178,  33  L.  ed.  872,  10  Sup.  Ct.  Rep.  518; 
St.  Louis  V.  Rutz,  138  U.  8.  226,  34  L. 
ed.  941,  11  Sup.  Ct.  Rep.  337;  Hardin  v. 
Jordan,  140  U.  S.  371,  35  L.  ed.  428,  11 
Sup.  Ct.  Rep.  808,  838;  Mitchell  v.  8male» 
140  U.  S.  406,  35  L.  ed.  442,  11  Sup.  Ct 
Rep.  819,  840;  Middleton  v.-  Pritchard,  4 
ni.  610,  38  Am.  Dec.  112;  Houck  v.  Yates, 
82  ni.  179;  Fuller  v.  Dauphin,  124  Hi. 
542,  7  Am.  St.  Rep.  388,  16  N.  E.  917; 
Boorman  v.  Sunnuchs,  42  Wis.  236;  Pere 
Marquette  Boom  Co.  v.  Adams,  44  Mich. 
403,  6  N.  W.  857;  Ridgway  v.  Ludlow,  6a 

2S9  U.  fiL 


1015. 


MOSS  V.  RAMEY. 


Ind.  249;  Kraut  y.  Crawford,  18  Iowa,  549, 
87  Am.  Dec.  414;  Morgan  r.  Reading,  3 
Smedea  k  M.  366;  Forsyth  v.  Smale,  7 
Bias.  201,  Fed.  Caa.  No.  4,950. 

Where  decisions  hare  been  made  in  the 
eonstruction  of  a  statute  or  a  constitutional 
provision,  and  contracts  entered  into  or 
rights  acquired  subsequent  to  such  construc- 
tion, the  construction  of  the  statute  is 
deemed  in  effect  to  be  a  part  of  the  stat- 
ute, and  subsequent  decisions  changing  such 
construction  and  orerruling  the  prior  cases 
have  no  greater  effect  than  an  amendment 
of  the  statute  would  have;  that  is  to  say, 
they  operate  prospectively,  but  not  retro- 
spectively, and  only  affect  contracts  en- 
tered into  and  rights  acquired  subsequent 
to  the  change  in  the  decision. 

11  Cyc  758;  Louisiana  v.  Pilsbury,  105 
U.  S.  278,  26  L.  ed.  1090;  7  R.  C.  L.  1010; 
Ohio  L.  Ins.  &  T.  Co.  v.  Debolt,  16  How. 
416,  14  L.  ed.  997;  Kenosha  v.  Lamson,  9 
Wall.  477,  19  L.  ed.  725;  Weightman  v. 
Clark,  103  U.  S.  256,  26  L.  ed.  392;  Burgess 
V.  Seligman,  107  U.  S.  20,  27  L.  ed.  359,  2 
Sup.  Ct.  Rep.  10;  Anderson  v.  Santa  Anna 
Tyirp.  116  U.  S.  356,  29  L.  ed.  633,  6  Sup. 
Ct.  Rep.  413;  German  Sav.  Bank  v.  Frank- 
lin County,  128  U.  S.  526,  32  L.  ed.  519, 
9  Sup.  Ct.  Rep.  159;  Los  Angeles  v.  Los 
Angeles  City  Water  Co.  177  U.  S.  558,  44 
L.  ed.  886,  20  Sup.  Ct.  Rep.  736;  Muhlker 
V.  New  York  k  H.  R.  Co.  197  U.  S.  544, 
677,  49  L.  ed.  872,  880,  25  Sup.  Ct.  Rep.  522; 
Birrell  v.  New  York  A  H.  R.  Co.  198  U. 
S.  390,  49  L.  ed.  1096,  25  Sup.  Ct.  Rep.  667 ; 
Siegel  V.  New  York  k  H.  R.  Co.  200  U.  S. 
615,  50  L.  ed.  621,  26  Sup.  Ct.  Rep.  756; 
Sauer  v.  New  York,  206  U.  S.  536,  51  L. 
ed.  1176,  27  Sup.  Ct.  Rep.  086;  Kenyon  v. 
Welty,  20  Cal.  637,  81  Am.  Dec.  137 ;  Jones 
T.  Williams,  155  N.  C.  179,  36  L.R.A.(N.S.) 
426,  71  S.  E.  222;  Hill  v.  Brown,  144  N.  C. 
117,  56  S.  E.  693;  Hill  v.  Atlantic  k  N. 
C.  R.  Co.  143  N.  C.  539,  9  L.R.A.(N.S.) 
606,  55  S.  E.  854 ;  State  v.  O'Keil,  147  Iowa, 
613,  33  L.R.A.(N.S.)  788,  126  N.  W.  454, 
Ann.  Cas.  1912B,  691;  Kelley  v.  Rhoads,  7 
Wyo.  237,  39  L.R.A.  594,  75  Am.  St.  Rep. 
904,  51  Pac.  593;  Haskett  v.  Maxey,  134 
Ind.  182,  19  L.R.A.  379,  33  X.  E.  358; 
Harris  v.  Jex,  55  N.  Y.  421,  14  Am.  Rep. 
286. 

Mr.  Will  R.  Kinir  argued  the  cause  and 
filed  a  brief  for  defendant  in  error  : 

The  rule  of  ret  judicata  cannot  apply  un- 
less the  decision  in  question  completely  dis- 
poses of  the  cause  and  puts  an  end  to  the 
litigation  between  the  parties  on  that  sub- 
jeet-mattcr.  Unless  a  final  judgment  or 
deeree  is  rendered  in  a  suit,  the  proceedings 
in  the  same  are  never  regarded  as  a  bar 
to  a  subsequent  action. 

10  Enc.  U.  8.  Sup.  Ct.  Rep.  774. 
•0  L.  ed. 


A  judgment  reversing  the  judgment  of 
an  inferior  court,  and  remanding  the  cause 
for  further  proceedings,  does  not  do  this. 

St.  CUir  County  v.  Lovingston,  18  Wall. 
628,  21  L.  ed.  813;  Parcels  v.  Johnson,  20 
WaU.  654,  22  L.  ed.  410;  McComb  v.  Knox 
County,  91  U.  S.  2,  28  L.  ed.  186;  Bostwick 
V.  Brinkerhoff,  106  U.  S.  4,  27  L.  ed.  74, 
1  Sup.  Ct  Rep.  16;  Great  Western  Telcg. 
Co.  V.  Bumham,  162  U.  S.  342,  40  L.  ed. 
992,  16  Sup.  Ct.  Rep.  850;  United  States  v. 
Beatty,  232  U.  S.  463,  58  L.  ed.  686,  34 
Sup.  Ct.  Rep.  392;  Atlantic  Coast  Line  R.  ^ 
Co.  V.  McElmurray  Bros.  14  Ga.  App.  196, 
80  S.  E.  680. 

The  case  at  bar  was  not  finally  decided  by 
the  Idaho  supreme  court  in  1908,  on  its 
first  hearing  before  that  court.  It  was  re- 
versed and  remanded  for  new  trial  because 
the  trial  court's  findings  were  supposedly 
made  on  "a  wrong  theory  of  the  law." 

Moss  T.  Ramey,  14  Idkho,  598,  95  Pac. 
513. 

The  Supreme  Court  of  the  United  States 
will  not  review  on  writ  of  error  a  case  in 
which  a  Federal  question  is  involved  unless 
the  decision  of  the  state  court  is  final. 

Bostwick  V.  Brinkerhoff,  106  U.  8.  3,  27 
L.  ed.  73,  1  Sup.  Ct.  Rep.  15. 

The  Supreme  Court  of  the  United  States 
is  not  bound  by  a  prior  decision  in  a  state 
court  involving  a  Federal  question. 

United  States  v.  Denver  A  R.  G.  R.  Co. 
191  U.  S.  84,  93,  48  L.  ed.  106,  109,  24  Sup. 
Ct.  Rep.  33;  Messenger  v.  Anderson,  225 
U.  S.  436,  66  L.  ed.  1152,  82  Sup.  Ct.  Rep. 
739;  Zeokendorf  v.  Steinfeld,  225  U.  S. 
445,  66  L.  ed.  1156,  32  Sup.  Ct.  Rep.  728; 
Chesapeake  k  O.  R.  Co.  v.  McKell,  126  C. 
C.  A.  336,  209  Fed.  614. 

An  appellate  court  may,  on  a  second  ap- 
peal, correct  the  entry  of  the  former  judg- 
ment so  as  to  make  it  express  the  true  de- 
cision of  the  case. 

2  R.  C.  L.  S  188. 

Questions  of  practice,  as  interpreted  by 
the  state  court,  as  in  this  instance,  are  not 
reviewable  by  this  court  on  appeal. 

Duncan  v.  United  Sta^-s,  7  Pet.  435,  451, 
8  L.  ed.  739,  745;  Johnson  v.  Drew,  171  U. 
S.  93,  98,  43  L.  ed.  88,  90,  18  Sup.  Ct.  Rep. 
800. 

Since  plaintiffs  have  brought  this  action 
tp  quiet  their  title,  their  right  to  recover  de- 
pends upon  the  strength  of  their  own  title, 
and  not  upon  the  weakness  of  the  defendant's 
title.  Before  the  defendant  is  required  to 
defend  his  claim  to  the  island,  the  plaintiffs 
must  establish  their  right  thereto;  and  in 
so  doing  must  establish  their  title  on  the 
ground  that  their  predecessor  in  interest 
acquired  title  to  said  land  by  reason  of 
the  patent  issued  to  him  by  the  government 
for  the  lots  bordering  on  Snake  river,  oppo- 
site said  island. 

42' 


544-546 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oci.  Tbrm» 


McNitt  V.  Turaer,  16  Wall.  362,  21  L.  ed. 
346;  Watts  v.  Ldndsey,  7  Wheat.  a61,  5  L. 
ed.  424;  Fussell  v.  Gregg,  113  U.  Sr  550, 
28  L.  ed.  093,  5  Sup.  Ct.  Rep.  631. 

The  finding  of  facta  made  in  the  highest 
court  of  a  state  is  binding  upon  the  Su- 
preme Court  of  the  United  States,  and  will 
be  the  basis  of  decision  there. 

Adams  v.  Church,  103  U.  S.  510,  48  L. 
ed.  769,  24  Sup.  Ct.  Rep.  512j  Egan  v.  Hart, 
165  U.  S.  188,  41  L.  ed.  680,  17  Sup.  Ct. 
Rep.  500;  Jenkins  v.  Neff,  186  U.  S.  230, 
235,  46  L.  ed.  1140,  1142,  22  Sup.  Ct.  Rep. 
906;  1  Enc.  U.  S.  Sup.  Ct.  Rep.  1005;  Cliff 
V.  United  States,  195  U.  S.  159,  49  L.  ed. 
139,  25  Sup.  Ct.  Rep.  1. 

Not  only  the  very  nature  of  a  writ  of  er- 
ror, but  also  the  rulings  of  this  court  from 
the  beginning,  make  it  clear  that  on  error  to 
a  state  court  in  a  suit  in  equity,  as  in  a 
case  at  law,  when  the  facts  are  found  by 
the  court  below,  this  court  is  concluded  by 
such  finding. 

1  Enc.  U.  S.  Sup.  Ct.  Rep.  781;  Egan  v. 
Hart,  165  U.  S.  188,  189,  41  L.  ed.  680,  681, 
17  Sup.  Ct.  Rep.  300;  E.  Bement  &  Sons 
T.  National  Harrow  Co.  186  U.  8.  70,  83, 
46  L.  ed.  1058,  1064,  22  Sup.  Ct.  Rep.  747 ; 
Dower  v.  Richards,  151  U.  S.  658,  666,  38 
L.  ed.  305,  308,  14  Sup.  Ct.  Rep.  452,  17 
Mor.  Min.  Rep.  704. 

Mr.  Justice  Van  DeTanter  delivered  the 
opinion  of  the  court: 

This  is  a  suit  to  quiet  the  title  to  an  un- 
suryeyed  island  in  the  Snake  river,  a  navi- 
gable stream,  the  thread  of  which  at  that 
place  is  the  dividing  line  between  the  states 
of  Oregon  and  Idaho.  The  island  lies  be- 
tween the  main  channel  and  the  bank  on 
the  Idaho  side,  and  is  separated  from  the 
latter  by  a  lesser  channel  from  100  to  300 
feet  in  width,  which  carries  a  considerable 
part  of  the  waters  of  the  river,  save  when 
it  is  at  its  lower  stages.  The  plaintiffs 
hold  patents  from  the  United  States,  issued 
In  1890  and  1892,  for  certain  lots  on  the 
Idaho  side,  opposite  the  island,  and  claim 
it  under  these  patents,  while  the  defendant 
insists  that  it  remains  public  land,  and  that 
he  has  a  possessory  right  to  it,  acquired 
by  settling  thereon  in  1894,  and  subsequent- 
ly improving  and  cultivating  it.  [545]  The 
island  contains  about  120  acres,  has  banks 
rising  abruptly  above  the  water,  is  of  stable 
formation,  has  a  natural  growth  of  grass 
and  of  trees  suitable  for  firewood,  and  evi- 
dently has  been  in  its  present  condition  since 
long  before  the  adjacent  lands  on  the  Idaho 
side  were  surveyed,  which  was  in  1868.  The 
field  notes  and  plat  represented  the  survey 
as  extending  to  the  river,  but  made  no  men- 
tion of  the  island.  They  also  represented 
the  lots  or  fractional  tracts  immediately  op- 
4S0 


posite  the  island  as  containing  110.40  acres. 
The  patents  under  which  the  plaintiffs  claim 
described  the  lots  by  giving  the  nimibers 
assigned  and  the  acreage  accredited  to  theiu 
on  the  plat,  and  then  saying,  "according  to 
the  official  plat  of  the  survey  of  the  said 
land  returned  to  the  General  Land  Oflice 
by  the  Surveyor  General."  The  trial  court 
concluded  that  the  island  remained  unsur- 
veyed  public  land,  and  that  the  plaintiffs' 
lands  extended  only  to  the  river,  and  ren- 
dered judgment  against  the  plaintiffs.  They 
appealed,  and  the  supreme  court  of  the 
state  held,  one  member  dissenting,  that 
the  patents  passed  the  title  not  only  to  the 
lots  as  shown  on  the  plat,  but  also  to  all 
islands  lying  between  them  and  the  thread 
of  the  stream.  The  judgment  was  accord- 
ingly reversed  and  a  new  trial  ordered  to 
determine  whether  the  plaintiffs  had  lost 
title  to  the  island  through  adverse  posses- 
sion. 14  Idaho,  598,  95  Pac.  513.  Upon 
the  new  trial  judgment  was  given  for  the 
plaintiffs  and  the  defendant  appealed.  The 
supreme  court,  in  deference  to  our  inter- 
mediate decision  in  Scott  v.  Lattig,  227  U. 
S.  229,  57  L.  ed.  490,  44  L.R.A.(N.S.)  107. 
33  Sup.  Ct.  Rep.  242,  then  recalled  its  deci- 
sion upon  the  first  appeal,  reversed  the 
judgment  rendered  upon  the  second  trial, 
and  remanded  the  cause  with  a  direction 
to  dismiss  it.  25  Idaho,  1,  136  Pac.  608. 
The  plaintiffs  bring  the  case  here. 

While  the  inference  naturally  arising 
from  the  silence  of  the  field  notes  and  plat 
is  that  the  island  was  not  there  at  the  time 
of  the  survey,  or,  if  there,  was  a  mere  sand 
bar  or  of  inconsiderable  area  and  value,  what 
is  shown  and  [546]  conceded  respecting  its 
stable  formation,  elevation,  size,  and  ap- 
pearance, completely  refutes  this  inference, 
and  demonstrates  that  the  island  was  in 
its  present  condition  at  the  time  of  the 
survey  and  when  Idaho  became  a  state, 
which  was  twenty-two  years  later. 

Thus  the  facts  bearing  on  the  status  of 
the  island  and  the  operation  of  the  patents 
are  essentially  the  same  as  in  Scott  v. 
Lattig;  and,  in  view  of  what  was  there 
held,  it  suffices  to  say:  The  error  of  the 
surveyor  in  failing  to  extend  the  survey 
over  the  island  did  not  make  it  any  the 
less  a  part  of  the  public  domain.  It  was 
fast,  dry  land,  and  neither  a  part  of  the 
bed  of  the  river  nor  land  under  water,  and 
therefore  did  not  pass  to  the  state  of  Idaho 
on  her  admission  into  the  Union,  but  re- 
mained public  land  as  before.  The  descrip- 
tive terms  in  the  patents  embraced  the  lots 
abutting  on  the  river,  as  shown  on  the  plat, 
but  not  this  island  lying  between  the  lots 
and  the  thread  of  the  stream.  Chapman  ft 
D.  Lumber  Co.  v.  St.  Francis  Levee  Dist. 
232  U.  8.  186,  58  L.  ed.  664,  34  Sup.  Ct 

tt9  V.  8* 


1915. 


CHICAGO  R.  I.  &  P.  R.  CO.  v.  WRIGHT. 


546-548 


Rq>.  297;  Gauthier  v,  Morrison,  232  U.  S. 
452,  58  L.  ed.  680,  34  Sup.  Ct  Rep.  384; 
Producers  Oil  Co.  v.  Hansen,  238  U.  S.  325, 
89  L.  ed.  1330,  35  Sup.  Ct.  Rep.  755.  The 
claim  that  the  island  passed  under  the  pat- 
ents is  therefore  ill-founded.  The  case  of 
^liiUker  v.  McBride,  197  U.  S.  510,  49  L. 
ed.  857,  25  Sup.  Ct.  Rep.  530,  upon  which 
the  plaintiffs  rely,  is  distinguishable  in 
that  what  was  there  claimed  to  be  an  is- 
land contained  only  22  acres  and  was  not 
•bown  to  be  of  stable  formation,  and  the 
Land  Department  had  repeatedly  refused  to 
treat  it  as  public  land. 

It  is  contended  that  the  decision  upon  tne 
Arst  appeal  became  the  law  of  the  case,  and 
that  by  recalling  that  decision  when  con- 
sidering the  second  appeal  the  court  in- 
fringed upon  the  due  process  of  law  clause 
of  the  14th  Amendment.  The  contention 
smst  faiL  There  is  nothing  in  that  or  any 
other  clause  of  the  i4th  Amendment  which 
prevents  a  state  from  permitting  an  appel- 
late court  to  alter  or  correct  its  interlocu- 
tory decision  upon  a  first  appeal  when  the 
nme  case,  with  the  same  [547]  parties, 
comes  before  it  again;  and  whether  this  is 
permitted  is  a  question  of  local  law,  upon 
whidi  the  decision  of  the  highest  court  of 
the  state  is  controlling  here.  King  v.  West 
Virginia,  216  U.  S.  92,  100,  54  L.  ed.  396, 
401,  30  Sup.  Ct.  Rep.  225;  John  y.  PauUin, 
231  U.  S.  583,  58  L.  ed.  381,  34  Sup.  Ct. 
Rep.  178. 

It  also  18  contended  that,  under  the  due 
process  of  law  clause  of  such  Amendment, 
the  court  was  not  at  liberty,  upon  the  sec- 
ond appeal,  to  change  its  first  decision,  be- 
cause, after  the  case  was  remanded  for  a 
new  trial,  the  defendant  acquiesced  in  that 
decision  by  an  amendment  to  his  answer 
completely  eliminating  from  the  case  all 
controversy  respecting  the  status  of  the 
island  and  the  operation  of  the  patents. 
This  contention  is  without  any  real  basis 
in  the  record.  The  original  answer  is  not 
before  us,  but  the  amended  one  is,  and  it, 
in  addition  to  otherwise  traversing  the 
plaintiffs'  allegation  of  ownership,  express- 
ly denies  that  they  or  either  of  them  "have 
any  right,  title,  or  interest  whatever  in  any 
portion"  of  the  island.  And  examining  the 
evidence  taken  on  the  second  trial  we  find 
that  the  defendant  was  then  still  insisting 
that  the  island  was  public,  and  not  private, 
land.  It  is  idle,  therefore,  to  claim  that 
the  point  involved  in  the  first  decision  was 
completely  eliminated  from  the  case  between 
the  two  appeals.  Whether,  if  the  record 
were  otherwise,  it  could  be  said  that  there 
was  an  abuse  of  due  process,  need  not  be 
considered. 

Judgment  affirmed. 
••  Ii.  ed. 


[548]  CHICAGO,  ROCK  ISLAND,  &  PA- 
CIFIC  RAILWAY  COMPANY,  Plff.  in 
Err., 

V. 

LIZZIE  L.  WRIGHT  and  Henry  C.  Berge, 
Administrators,  etc 

(See  S.  C.  Reporter's  ed.  548-555.) 

Master  and  servant  ^  employers'  lia- 
bility ^  when  employee  is  engaged  In 
interstate  commerce. 

1.  An  employee  of  an  interstate  carrier, 
injured  in  a  collision  while  taking  a  road 
engine  from  a  point  in  one  state  to  a  re- 
pair shop  in  another  state,  was  employed 
at  the  time  in  interstate  commerce,  witnin 
the  meaning  of  the  Federal  employers'  lia- 
bility act  of  April  22,  1908  (35  SUt.  at  L. 
65,  chap.  149,  Comp.  SUt.  1913,  §  8657), 
although  tlie  train  order  under  which  he 
was  then  proceeding  directed  that  his  en- 
gine be  run  "extra"  between  two  named 
points,  both  of  which  are  in  the  same  state. 
I  For  other  cases,   see  Master  and  Servant.   II. 

a.    In  Digest  8up.  Ct  1908.] 

Appeal  ^  harmless  error  ^  submitting 
case  under  wrong  statute. 

2.  Error  in  submitting  a  case  to  the 
jury,  as  if  the  state  employers'  liability 
act  rather  than  the  Federal  employers'  lia- 
bility act  of  April  22,  1908  (35  Stat,  at 
L.  65,  chap.  149,  Comp.  Stat.  1913,  §  8657), 
were  controlling,  does  not  require  the  re- 
versal of  a  judgment  in  favor  of  plaintiff, 
where,  on  the  only  material  point  on  which 
the  two  acts  differ,  the  state  act  is  more 
favorable  to  the  employer  than  is  the  act 
of  Congress.   • 

[For  other  cases,  see  Appeal  and  Error,   VIII. 
m,   in  Digest  Sup.  Ct.  1908.] 

Master  and  servant  ^  employers'  lia- 
bility —  negligence  ^  rules. 

3.  The  running  of  a  switching  engine  on 
the  main  track  through  a  deep  and  curved 
cut  within  the  yard  limits  at  such  a  rate 
of  speed  as  to  endanger  the  safety  of  an 
"extra"  which  the  switching  crew  knows 
may  be  coming  through  the  cut  on  the  same 
track  is  actionable  negligence  under  the 
Federal  employers*  liability  act  of  April 
22,  1908  (35  Stat,  at  L.  65,  chap.  149,  Comp. 
Stat.  1913,  §  8657),  whether  permitted  by 
the  railway  company's  rules  or  not,  and 
renders  the  railway  company  responsible 
for  the  killing  of  the  engineer  of  the  extra 
in  the  resulting  collision. 

[For  other  cases,   see  Master  and  Servant,   II. 
a,   in  Digest  Sup.  Ct  1908.] 

[No.  167.] 

Argued  November  30,  1915.     Decided  Jan- 
uary 10,  1916. 

Note. — On  the  constitutionality,  applica- 
tion, and  effect  of  the  Federal  employers' 
liability  act — see  notes  to  Lamphere  v.  Ore- 
gon R.  ft  Nav.  Co.  47  L.R^.(N.S.)  38,  and 
Seaboard  Air  Line  R.  Co.  ▼.  Horton,  L.RJL 
1915C,  47. 

4^v 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tnoi, 


IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Nebraska  to  review  a  judgment 
which  affirmed  a  judgment  of  the  District 
Court  of  Lancaster  County,  in  that  state, 
in  favor  of  plaintiffs  in  a  personal-injury 
action.     Affirmed. 

See  same  case  below,  94  Neb.  317,  143 
N.  W.  220;  on  rehearing,  06  Neb.  87,  Ht! 
N.  W.  1024. 

The  facts  are  stated  in  the  opinion. 

Mr.  E.  P.  Holmes  argued  the  cause,  and, 
with  Mr.  Paul  E.  Walker,  filed  a  brief  for 
plaintiff  in  error: 

Tlie  administrators  of  an  engineer  in  the 
employ  of  a  railroad  company,  operating  a 
lone  engine  being  taken  from  Fairbury,  Ne- 
braska, to  Council  Bluffs,  Iowa,  killed  while 
on  said  trip,  are  entitled  to  maintain  a  suit 
against  the  railway  company  under  the 
Federal  employers'  liability  act. 

North  Carolina  R.  Co.  v.  Zachary,  232  U. 
S.  248,  68  L.  ed.  591,  34  Sup.  Ct.  Rep.  305, 
9  N.  C.  C.  A.  109,  Ann.  Cas.  191 4C,  159. 

If  the  case  is  one  where  the  employee  is 
employed  by  the  interstate  carrier  in  such 
commerce,  then  the  Federal  employers'  lia- 
bility act  is  exclusive,  and  it  is  error  to  try 
the  case  under  a  state  employers'  liability 
act. 

Toledo,  St.  L.  A  W.  R.  Co.  r.  Slavin,  236 
U.  S.  454,  59  L.  ed.  671,  35  Sup.  Ct.  Rep. 
306;  St.  Louis,  S.  F.  &  T.  R.  Co.  v.  Scale, 
229  U.  S.  156,  57  L.  ed.  1129,  38  Sup.  Ct. 
Rep.  651,  Ann.  Cas.  1914C,  156;  North  Caro- 
lina R.  Co.  v.  Zachary,  supr^i;  Second  Em- 
ployers' Liability  Cases  (Mondou  v.  New 
York,  N.  H.  &  H.  R.  Co.)  223  U.  S.  1,  49, 
56  L.  ed.  327,  345,  38  L.R.A.(N.S.)  44,  32 
Sup.  Ct.  Rep.  169,  1  N.  C.  C.  A.  875. 

In  construing  and  applying  the  Federal 
employers'  liability  act  the  decisions  of 
the  national  courts  control  over  those  of 
the  state  courts,  and  in  determining  when  a 
carrier  is  guilty  of  negligence  under  the 
Federal  act  the  decisions  of  the  Federal 
courts  control,  and  if  the  state  court,  apply- 
ing the  Federal  act  or  in  trying  a  case  which 
should  have  been  tried  under  that  act,  erred 
in  the  trial  of  the  case  in  holding  the  car- 
rier liable,  it  is  such  an  error  as  this  court 
may  review. 

Roberts,  Injuries  to  Interstate  Employees, 
§  8,  p.  15;  St.  Louis,  I.  M.  k  S.  R.  Co.  v. 
McWhirter,  229  U.  S.  265,  56  L.  ed.  1179, 
33  Sup.  Ct.  Rep.  858;  Michigan  C.  R.  Co. 
V.  Vreeland,  227  U.  S.  59,  57  L.  ed.  417, 
33  Sup.  Ct.  Rep.  192,  Ann.  Cas.  1914C.  176. 

Rules  that  yard  engines  in  yard  limits 
might  occupy  tracks,  protecting  themselves 
against  first-class  and  passenger  trains,  and 
that  extra  trains  must  run  through  yards 
under  control,  looking  out  for  yard  engines 
and  other  engines,  are  reasonable  and  suffi- 
cient. 
4SS 


Central  R.  Co.  v.  Young,  L.RJ^. — ,  — ,  118 
C.  C.  A.  465,  200  Fed.  359;  1  Bailey,  Per- 
sonal Injuries,  2d  ed.  p.  797;  3  Labatt,  Mast. 
&  S.  p.  2948;  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Ship,  98  C.  C.  A.  257,  174  Fed.  353 ;  ROsney 
V.  Erie  R.  Co.  68  C.  C.  A.  155,  135  Fed. 
311;  Great  Northa-n  R.  Co.  v*  Hooker,  95 
C.  C.  A.  410,  170  Fed.  154;  Kansas  &  A. 
Valley  R.  Co.  v.  Dye,  16  C.  C.  A.  604,  36 
U.  S.  App.  23,  70  Fed.  24;  Little  Rock  & 
M.  R.  Co.  V.  Barry,  43  L.RJL  349,  28  C. 
C.  A.  644,  56  U.  S.  App.  37,  84  Fed.  944; 
Scott  V.  Eastern  R.  Co.  90  Minn.  135,  95 
N.  W.  892,  14  Am.  Neg.  Rep.  373;  Vedder 
V.  Fellows,  20  N.  Y.  126;  Enright  v.  Toledo, 

A.  A.  A  N.  k.  R.  Co.  93  Mich.  409,  53  N. 
W.  536;  Berrigan  v.  New  York,  L.  E.  A  W. 
R.  Co.  131  N.  Y.  582,  30  N.  E.  57;  Whalen 
V.  Michigan  C.  R.  Co.  114  Mich.  612,  72  N. 
W.  323;  Kenefick-Hammond  Co.  t.  Rohr, 
77  Ark.  290,  91  S.  W.  179,  19  Am.  Neg. 
Rep.  69;  Ward  v.  Manhattan  R.  Co.  95  App. 
Div.  437,  88  N.  Y.  Supp.  758;  Wolsey  v. 
Lake  Shore  &  M.  S.  R.  Co.  33  Ohio  St. 
227;  Aerkfetz  v.  Humphrey!,  145  U.  S.  418, 
36  L.  ed.  758,  12  Sup.  Ct.  Rep.  835;  Larow 
V.  New  York,  L.  E.  A  W.  R.  Co.  61  Hun,  11, 
15  N.  Y.  Supp.  384;  Shuster  v.  Philadelphia, 

B.  k  W.  R.  Co.  6  Penn.  (DeL)  4,  4  LJLA. 
(N.S.)  407,  62  Atl.  689;  Shannon  ▼.  New 
York  C.  &  H.  R.  R.  Co.  88  App.  Div.  349,  84 
N.  Y.  Supp.  646;  Smith  t.  New  York  C.  & 
H.  R.  R.  Co.  88  Hun,  468,  84  N.  Y.  Supp. 
881;  Niles  v.  New  York  C.  A  H.  R.  R.  Co. 
14  App.  Div.  58,  43  N.  Y.  Supp.  751,  1  Am. 
Neg.  Rep.  511;  Corcoran  v.  New  York,  N. 
H.  &  H.  R.  Co.  77  App.  Div.  505,  78  N.  Y. 
Supp.  953. 

When  an  empty  car  or  a  lone  engine  for 
whatever  purpose  is  going  from  a  point  in 
one  state  to  a  point  in  another,  within  the 
meaning  of  the  Federal  employers'  liability 
act,  the  crew  moving  it  are  engaged  in  in- 
terstate commerce. 

North  Carolina  R.  Co.  v.  Zachary,  232  U. 
S.  248,  58  L.  ed.  591,  34  Sup.  Ct.  Rep.  305, 
9  N.  C.  C.  A.  109,  Ann.  Cas.  1914C,  159; 
Roberts,  Injuries  to  Interstate  Employees,  p. 
113. 

Mr.  George  W.  Berge  argued  the  cause, 
and,  with  Mr.  Halleck  F.  Rose,  filed  a  brief 
for  defendants  in  error: 

A  necessary  movement  of  a  defective 
empty  car  or  engine  alone,  for  the  purpose 
of  repair  only,  and  not  in  connection  with 
any  cars  commercially  used,  does  not  con- 
stitute interstate  conunerce ;  and  in  such'  a 
case  it  matters  not  whether  the  defective 
car  or  engine  is  being  transported  between 
two  points  in  a  state,  or  whether  it  crosses 
state  lines. 

Chicago  A  N.  W.  R.  Co.  v.  United  SUtes, 
21  L.R.A.(N.S.)  690,  93  C.  C.  A.  450,  168 
Fed.   236;    United    States  t.   Rio   Grande 

SS9  U.  8. 


1915. 


CHICAGO  R.  L  ft  P.  R.  CO.  T.  WRIQHT. 


MO 


Western  R.  Co.  98  C.  C.  A.  298,  174  Fed. 
899;  Siegel  v.  New  York  C.  ft  H.  R.  B.  Co. 
178  Fed.  878;  Johnson  v.  Southern  P.  Co. 
196  U.  S.  1,  49  L.  ed.  868,  25  Sup.  Ct  Rep. 
158, 17  Am.  Neg.  Rep.  412;  Tajlor  v.  Boston 
ft  M.  R.  Go.  188  Mass.  390,  74  N.  E.  591; 
fionthcrn  R.  Co.  t.  Snyder,  109  C.  C.  A. 
344,  187  Fed.  492;  St.  Louis  ft  S.  F.  R.  Co 
T.  Delk,  86  C.  C.  A.  95,  158  Fed.  931,  14 
Ann.  Gas.  288;  United  States  t.  Southern 
P.  Co.  04  C.  C.  A.  629,  169  Fed.  407 ;  Chi- 
cago Junction  R.  Co.  v.  King,  94  C.  C.  A. 
652,  169  Fed.  872;  Illinois  C.  R.  Co.  v. 
Bowles,  71  Miss.  1003,  15  So.  138;  Breske 
T.  Minneapolis  ft  St.  L.  R.  Co.  115  Minn. 
886,  132  N.  W.  337;  Dlinois  C.  R.  Co.  v. 
Behrens,  233  U.  S.  478,  58  L.  ed.  1051,  84 
Sup.  Ct  Rep.  646,  Ann.  Cas.  1914C,  163. 

The  Federal  employer's  liability  act  is  in 
pari  materia  with  the  Federal  safety  appli- 
ance act,  and  what  is  interstate  commerce 
under  one  act  must  be  so  under  the  other. 
At  least,  they  must  be  construed  together. 

North  Carolina  R.  Co.  v.  Zachary,  232 
TJ.  S.  248,  58  L.  ed.  591,  34  Sup.  Ct.  Rep. 
805,  9  N.  C.  C.  A.  109,  Ann.  Cas.  1914C,  159. 

The  court's  instructions  assume,  based 
upon  the  undisputed  evidence,  that  the  de- 
ceased, at  the  time  he  was  Idlled,  was  en- 
gaged outside  of  interstate  commerce;  and 
the  plaintiff  in  error,  having  requested  such 
instructions,  is  bound  by  them;  and  it  must 
Iw  taken  as  settled  that  the  state  employers' 
liability  act  is  applicable  to  thb  case,  and 
not  the  Federal  act. 

Wabash  R.  Co.  ▼.  Hayes,  234  U.  S.  86, 
58  L.  ed.  1226,  84  Sup.  Ct.  Rep.  729,  6 
N.  C.  C.  A.  224. 

The  right  to  proceed  in  an  action  for  per- 
sonal injuries  under  the  Federal  employers' 
liability  act  may  be  waived. 

Graber  v.  Duluth,  S.  S.  ft  A.  R.  Co.  159 
Wis.  414,  150  N.  W.  489 ;  Leora  v.  Minne- 
apolia,  St.  P.  ft  S.  Ste.  M.  R.  Co.  156  Wis. 
886,  146  N.  W.  520,  8  N.  C.  C.  A.  108; 
Hanson  v.  Chicago,  M.  ft  St.  P.  R.  Co.  167 
Wis.  455,  146  N.  W.  524;  Wabash  R.  Co. 
▼.  Hayes,  supra;  Chesapeake  ft  O.  R.  Co.  v. 
McDonald,  214  U.  S.  191,  53  L.  ed.  963, 
29  Sup.  Ct.  Rep.  546;  Harding  v.  Illinois, 
106  U.  S.  78,  49  L.  ed.  394,  25  Sup.  Ct. 
R^.  176. 

In  the  case  at  bar  the  evidence  is  all  one 
way,  showing  conclusively  that  the  deceased 
was  engaged  outside  of  interstate  commerce. 
•Suppose,  however,  as  a  matter  of  fact,  he 
had  been  engaged  in  interstate  commerce, 
but  the  evidence  showing  this  fact  had  been 
excluded  by  the  trial  court, — still  this  would 
be  error  without  prejudice  where  the  rail- 
way company's  position  was  made  no  worse 
beoinse  the  case  was  tried  upon  the  hypoth* 
«sis  that  the  state  law  governed. 

Chicago  ft  N.  W.  R.  Co.  v.  Gray,  237  U. 
«•  L.  ed. 


S.  399,  59  L.  ed.  1018,  35  Sup.  Ct.  Rep.  620, 
9  N.  C.  C.  A.  452. 

Questions  of  fact  which  are  merely  pre- 
liminary to  or  the  possible  basis  of  a  Fed- 
eral question  are  not  in  themselves  Federal. 

Telluride  Power  Transmission  Co.  v.  Rio 
Grande  Western  R.  Co.  175  U.  S.  639,  44 
L.  ed.  305,  20  Sup.  Ct.  Rep.  245;  Telluride 
Power  Transmission  Co.  v.  Rio  Grande 
Western  R.  Co.  187  U.  S.  569,  47  L.  ed.  307, 
23  Sup.  Ct.  Rep.  178;  Crary  v.  Devlin,  154 
U.  S.  619,  and  23  L.  ed.  510,  14  Sup.  Ct. 
Rep.  1199;  Merced  Min.  Co.  v.  Boggs,  3 
Wall.  304,  18  L.  ed.  245;  Dower  v.  Richards, 
151  U.  S.  659,  38  L.  ed.  306,  14  Sup.  Ct. 
Rep.  452,  17  Mor.  Min.  Rep.  704;  Speed  v. 
McCarthy,  181  U.  S.  269,  45  L.  ed.  855, 
21  Sup.  Ct  Rep.  618. 

Nor  does  this  court  sit  to  review  the  find- 
ings of  facts  made  in  the  state  court,  but 
accepts  the  findings  of  the  court  of  the 
state  upon  matters  of  fact  as  conclusive, 
and  is  confined  to  a  review  of  questions  of 
Federal  law  within  the  jurisdiction  con- 
ferred upon  this  court. 

Waters-Pierce  Oil  Co.  v.  Texas,  212  U.  S. 
97,  53  L.  ed.  424,  29  Sup.  Ct.  Rep.  220; 
Quimby  v.  Boyd,  128  U.  S.  488,  32  L.  ed. 
502,  9  Sup.  Ct.  Rep.  147 ;  Egan  v.  Hart,  165 
U.  S.  188,  41  L.  ed.  680,  17  Sup.  Ct.  Rep. 
300;  Dower  v.  Richards,  151  U.  S.  658, 
38  L.  ed.  305,  14  Sup.  Ct  Rep.  452,  17  Mor. 
Min.  Rep.  704;  Thayer  v.  Spratt,  189  U.  S. 
346,  47  L.  ed.  845,  23  Sup.  Ct.  Rep.  576; 
Missouri,  K.  ft  T.  R.  Co.  v.  West,  232  U.  S. 
682,  58  L.  ed.  795,  34  Sup.  Ct  Rep.  471. 

[549]  Mr.  Justice  Van  Decanter  deliv- 
ered the  opinion  of  the  court: 

This  was  an  action  against  a  railroad 
company  by  personal  rq>resentatives  to  re- 
cover for  the  death  of  their  intestate,  an 
employee  of  the  company,  resulting  from 
a  collision  of  two  locomotives  on  the  com- 
pany's railroad  at  Lincoln,  Nebraska.  One 
of  the  locomotives  was  a  switch  engine  re- 
turning to  the  city  from  an  adjacent  trans- 
fer track,  and  the  other  a  road  engine  on 
the  way  to  a  distant  repair  shop.  The  for- 
mer was  in  charge  of  a  switching  erew, 
and  the  latter  of  an  engine  crew  in  which 
the  intestate  was  the  engineer.  At  the 
place  of  the  collision  the  track  is  in  a  deep 
and  curved  cut  which  shi^rtens  the  view 
along  the  track.  The  causal  negligence  set 
up  in  the  petition  included  allegations  that 
the  defendant  negligently  failed  to  provide 
a  suitable  rule  regulating  the  speed  and 
movement  of  switch  engines  through  the 
cut;  that  the  switch  engine  was  being  run 
through  the  cut  at  a  negligent,  reckless,  and 
dangerous  rate  of  speed,  and  without  its 
engineer  having  it  under  control,  and  that 
when  the  employees  in  charge  of  it  came 
28  4S> 


649-662 


SUPREME  COURT  OF  aiiE  UNITED  STATES. 


OoT.  TwaM., 


within  view  of  the  other  engine  thej  negli- 
gently jumped  to  the  ground  without  re- 
versing their  engine  or  attempting  to  stop 
it,  notwithstanding  it  reasonably  and  safely 
could  have  been  stopped  in  time  to  prevent 
the  collision.  The  answer  denied  all  that 
was  alleged  in  the  petition,  and  charged  the 
intestate  with  gross  contributory  negli- 
gence and  an  assumption  of  the  risk.  The 
petition  described  the  road  engine  as  mov- 
ing from  one  point  to  another  in  Nebraska, 
and  said  nothing  about  interstate  commerce, 
but  the  answer  alleged  that  this  engine  was 
being  taken  to  a  point  in  another  state,  and 
that  the  defendant  was  engaged  and  the 
intestate  was  employed  in  interstate  com- 
merce. At  the  trial  the  evidence  disclosed 
that  the  defendant  was  operating  a  railroad 
extending  through  Kansas,  Nebraska,  Iowa, 
and  other  [550]  states;  that  the  road  en- 
gine was  on  the  way  from  Phillipsburg, 
Kansas,  to  Council  Bluffs,  Iowa;  that  the 
train  order  under  which  the  intestate  was 
proceeding  at  the  time  read,  "Engine  1486 
will  run  extra  Fairbury  to  Albright,"  both 
points  being  in  Nebraska,  and  that  when 
Albright  was  reached  another  order  was  to 
be  given,  covering  the  remainder  of  the 
trip.  Notwithstanding  the  allegation  in 
the  answer  and  this  evidence,  the  court  sub- 
mitted the  case  to  the  jury  as  if  it  were 
controlled  by  the  employers'  liability  act 
of  Nebraska,  and  not  by  the  act  of  Con- 
gress. The  plaintiff  had  a  verdict  and 
judgment,  and  the  latter  was  affirmed  by 
the  supreme  court  of  the  state.  04  Neb. 
317,  143  N.  W.  220,  06  Neb.  87,  146  N. 
W.  1024.  The  defendant  prosecutes  this 
writ  of  error. 

It  is  entirely  clear  that  taking  the  road 
engine  from  Phillipsburg,  Kansas,  to  Coun- 
cil Bluffs,  Iowa,  was  an  act  of  interstate 
commerce,  and  that  the  intestate,  while  par- 
ticipating in  that  act,  was  employed  in  such 
commerce.  That  the  engine  was  not  in 
commercial  use,  but  merely  on  the  way  to 
a  repair  shop,  is  immaterial.  It  was  being 
taken  from  one  state  to  another,  and  this 
was  the  true  test  of  whether  it  was  moving 
in  interstate  commerce.  See  North  Cfirolina 
R.  Co.  V.  Zachary,  232  U.  S.  248,  250,  58 
L.  ed.  501,  505,  34  Sup.  Ct.  Rep.  306,  Ann. 
Cas.  1014C,  150.  The  courU  of  the  state 
rested  their  decision  to  the  contrary  upon 
the  train  order  under  which  the  intestate 
was  proceeding,  and  upon  the  decisions  in 
Chicago  A  N.  W.  R.  Co.  v.  United  States, 
21  L.RJl.(N.S.)  600,  03  C.  C.  A.  450,  168 
Fed.  236,  and  United  States  v.  Rio  Grande 
Western  R.  Co.  08  C.  C.  A.  203,  174  Fed. 
300.  In  this  they  misoonoeived  the  meaning 
of  the  train  ordir  and  the  effect  of  the  de- 
cisions cited.  The  order  was  given  by  a 
division  train  daspatcher,  and  meant  that 
between  the  points  named  therein  the  en- 
Mne  would  have  the  status  of  an  extra 
4 


train,  and  not  that  it  was  going  merely 
from  one  of  those  points  to  the  other.  The 
cases  cited  arose  under  the  safety  appliance 
acts  of  Congress,  and  what  was  decided  was 
that  those  acts  were  not  intended  [551]  to 
penalize  a  carrier  for  hauling  to  an  adjacent 
and  convenient  place  of  repair  a  car  with 
defective  appliances,  when  the  sole  pur- 
pose of  the  movement  was  to  have  the  de- 
feet  corrected,  and  the  car  was  hauled  alone, 
and  not  in  connection  with  other  cars  in 
commercial  use.  It  was  not  held  or  sug- 
gested that  such  a  hauling  from  one  state 
to  another  was  not  a  movement  in  inter- 
state commerce,  but  only  that  it  was  not 
penalized  by  those  acts. 

As  the  injuries  resulting  in  the  intes- 
tate's death  were  sustained  while  the  com- 
pany was  engaged,  and  while  he  was  em- 
ployed by  it,  in  interstate  commerce,  the 
company's  responsibility  was  governed  by 
the  employers'  liability  act  of  Congress, 
chap.  140,  35  Stat,  at  L.  65,  chap.  143,  36 
Stat,  at  L.  201,  Conip.  Stat  1013,  §  8662; 
and  as  that  act  is  exclusive  and  supersedes 
state  laws  upon  the  subject,  it  was  error 
to  submit  the  case  to  the  jury  as  if  the 
state  act  were  controlling.  Wabash  R.  Co. 
V.  Hayes,  234  U.  S.  86,  80,  68  L.  ed.  1226, 
1230,  34  Sup.  Ct.  Rep.  720,  6  N.  C.  C.  A. 
224,  and  cases  cited. 

But  error  affords  no  ground  for  reversal 
where  it  is  not  prejudicial,  and  here  it  is 
plain  that  the  company  was  not  prejudiced. 
While  there  are  several  differences  between 
the  state  act  and  the  act  of  Congress,  the 
only  difference  having  a  present  bearing  is 
one  relating  to  contributory  negligence. 
The  state  act  declares  that  in  cases  where 
the  employee's  negligence  is  slight  and 
that  of  the  employer  is  'gross  in  compari- 
son, the  former's  negligence  shall  not  bar 
a  recovery,  but  shall  operate  to  diminish 
the  damages  proportionally.  In  other  cases 
contributory  negligence  remains  a  bar  as  at 
common  law.  Comp.  Stat.  1007,  §  2803b; 
Cobbey's  Anno.  Stat.  1011,  §  10,502.  The 
act  ol  Congress,  on  the  other  hand,  declares 
that  the  employee's  negligence  shall  not  bar 
a  recovery  in  any  case,  but  shall  operate 
to  diminish  the  damages  proportionally  in 
all  cases,  save  those  of  a  designated  class, 
of  which  this  is  not  one.  Thus,  it  will  bo 
seen  that  the  state  act  is  more  favorable  to 
the  employer  than  is  the  act  of  Congress. 
The  instructions  to  the  jury  followed  the 
state  [552]  act,  and  consequently  were 
more  favorable  to  the  company  than  they 
would  have  been  had  they  followed  the  act 
of  Congress.  To  illustrate:  under  the  in- 
structions given,  a  finding  that  the  in* 
testate's  injuries  were  caused  by  con- 
curring negligence  of  the  ccmipany  and 
himself,  and  that  his  negligence  was 
more  than  slight  and  the  company's  less 
than  gross,  must  have  resulted  in  a  ver- 

289  U.  8. 


1915. 


CHICAGO  R.  I.  ft  P.  R.  CO.  r.  WRIGHT. 


652-554 


diet  for  the  company,  while,  under  instruo- 
tkmB  following  tiie  act  of  CongresB,  such  a 
finding  must  have  resulted  in  a  verdict  for 
the  plaintiffs,  with  the  damages  proportion- 
ally diminished.  Of  course,  no  prejudice 
could  have  resulted  to  the  company  from 
the  instructions  being  more  favorable  to  it 
than  they  should' have  been  under  the  con- 
trolling law. 

The  company  requested  a  directed  verdict 
in  its  favor  on  the  ground  that  there  was 
no  evidence  of  any  negligence  whereon  it 
could  be  held- responsible  for  the  intestate's 
death,  but  the  request  was  denied,  and  the 
supreme  court  of  the  state  sustained  the  rul- 
ing. In  this  it  is  contended  that  the 
company  was  denied  a  Federal  right;  that 
is,  the  right  to  be  shielded  from  responsi- 
bility under  the  act  of  Congress  when  an 
essential  element  of  such  responsibility  is 
entirely  wanting.  See  St.  Louis,  I.  M.  &  S. 
R.  Co.  V.  McWhirter,  229  U.  8.  255,  275, 
277,  57  L.  ed.  1179,  1185,  1186,  83  Sup.  Ct. 
Rep.  8i)8;  Seaboard  Air  Line  R.  Co.  v. 
Padgett,  236  U.  S.  668,  673,  59  L.  ed.  777, 
781,  35  Sup.  Ct  Rep.  481.  The  collision 
was  on  the  main  track  and  within  the  outer 
portion  of  the  yard  limits  at  Lincoln.  At 
that  point  the  track  was  in  a  deep  and 
curved  cut  which  made  the  view  along  the 
track  from  an  engine  passing  in  either  di- 
rection comparatively  short.  The  intestate 
was  proceeding  to  a  distant  point  under 
an  order  which  gave  his  engine  the  status 
of  an  extra  train,  and  the  switching  crew 
were  returning  to  the  city  with  their  engine 
after  completing  some  switching  work  at 
an  adjacent  transfer  track.  The  switching 
crew  knew  the  extra  was  in  the  yard  and 
that  they  might  meet  it  while  going  through 
the  cut,  for  the  engineer  in  that  crew  testi- 
fied: 

Q.  What  did  he  [the  fireman]  [553]  say? 

A.  He  says:  **Here  they  are,"  or  ''there 
they  are/'  or  something  like  that. 

Q.  You  knew  who  "they"  was,  what 
"they"  referred  to,  you  knew  it  was  this 
extra? 

A.  I  thought  it  was. 

Q.  Yes,  you  was  expecting  it? 

A.  I  was  expecting  it  in  a  way.  Yes, 
I  was  told  to  look  out  for  it,  which  we 
were  doing. 

Q.  You  knew  it  was  likely  to  come 
around  that  curve? 

A.  Yes,  sir. 

i^nd  yet  the  switching  crew  were  proceed- 
ing through  the  cut  at  so  high  a  speed  that 
they  were  unable  to  stop  their  engine  and 
avoid  a  collision  notwithstanding  the  extra 
wu  420  feet  away  when  it  came  within 
▼iew  and  waa  brought  practically  to  a  stop 
••  Ii.  ed. 


within  50  feet.  Among  the  company's  rules 
were  the  following:  "All  except  first-class 
trains  will  approach,  enter,  and  pass 
through  the  following  named  yards  [among 
them  being  the  yard  at  Lincoln]  under  full 
control,  expecting  to  find  the  main  track 
occupied  or  obstructed."  "Yard  limits  will 
be  indieated  by  yard-limit  boards.  Within 
these  yard  limits  engines  may  occupy  main 
tracks,  protecting  themselves  against  over- 
due trains.  Extra  trains  must  protect 
themselves  within  yard  limits."  The  in- 
testate's engine  was  neither  a  first-class  nor 
an  overdue  train,  but,  as  before  stated, 
had  the  status  of  an  extra  train.  The  com- 
pany took  the  position  that  the  rules  placed 
upon  the  intestate  the  entire  burden  of 
taking  the  requisite  precautions  to  avoid 
a  collision  with  the  switch  engine  at  any 
place  within  the  yard  limits,  whether  in 
the  cut  or  elsewhere,  and  therefore  that  no 
negligence  could  be  imputed  to  the  company 
or  the  switching  crew  in  respect  of  the 
speed  or  control  of  the  switch  engine.  This 
position  was  pointedly  illustrated  by  the 
foreman  of  the  switching  crew,  who  testi- 
fied: 

Q.  But  you  went  on  the  theory  and  as- 
sumed that  everything  had  to  get  out  of 
the  way  for  you  except  this  passenger  [a 
first-class  train  soon  to  pass  through  the 
cut]? 

A.  Yes,  sir. 

Q.  Although  you  knew  the  extra  was  in 
the  yards? 

A.  Yes,  sir. 

Q.  And  you  claim  it  under  that  rule? 

[554]  A.  Y^,  sir.     .    .    . 

Q.  You  ought  to  run  under  control* 
though,  in  the  yard  limits? 

A.  \NTiy,  I  don't  see  why? 

Q.  How? 

A.  Other  trains  are  supposed  to  look  out 
for  us.    .    .    . 

Q.  What  is  the  rule  about  switch  en- 
gines running  under  control  in  the  yard 
limiU? 

A.  There  is  not  any. 

Q.  How? 

A.  There  is  no  rule. 

And  that  position  was  also  illustrated  by 
the  division  train  master,  who  stated  that 
"switch  engines  had  the  right  over  all  ex- 
cept first-class  trains  in  the  yards,  and 
other  trains  would  have  to  look  out  for 
them,"  and  further  testified: 

Q.  Whan  you  say  you  examine  men  for 
switch  engines  do  you  use  these  rules? 

A.  Yes,  and  the  time-tables. 

Q.  You  tell  switch  engine  men  that  they 
have  a  right  to  run  25  miles  an  hour  in  the 
yards? 

A.  Tts,  sir. 


654-666 


SUPREliE  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Tebm» 


Q.  You  tell  them  thatT 

A.  If  they  want  to.  I  dont  teU  them  any- 
thing about  running. 

Q.  How  ia  that? 

A.  I  don't  tell  them  anything  about  how 
fatt  they  shall  run  or  how  slow. 

Q.  You  understand,  of  course,  that  they 
can  at  any  time  run  their  engines  n^li- 
gently? 

A.  I  tmderstand  that,  yes. 

Q.  You  don't  tell  them  to  be  careful  at 
all  when  you  instruct  your  switch  engine 
men? 

A.  I  tell  them  to  run  their  engines  ac- 
cording to  the  rules. 

Q.  But  you  hare  no  rules  respecting 
switch  engines? 

A.  No,  we  have  instructions  sometimes. 

Q.  Have  you  any  rules  respecting  switch 
engines? 

A.  No,  sir.    .    •    • 

Q.  What  do  you  tell  your  switch  engine 
men  about  your  rules,  about  running  under 
control  in  yard  limits? 

A.  Don't  tell  them  anything,  not  in  re- 
gard to  running  under  control  in  the  yards. 

The  plaintiffs  took  the  position  that  the 
rules,  if  regarded  as  devolving  upon  one  in 
the  intestate's  situation  the  measure  of  re- 
sponsibility indicated,  and  permitting  the 
switching  crew  to  run  their  engine  through 
the  cut,  not  imder  control,  but  at  high  speed, 
when  they  knew  that  they  might  meet  the 
other  engine,  were  unreasonable  in  that  re- 
spect.   Whether  the  rules  were  thus  imrea- 
sonable  was  submitted  to  the  jury  as  a  ques- 
tion of  [555]  fact  over  the  company's  objec- 
tion that  the  question  was  one  of  law  for 
the  court.    The  jury  found,  as  the  record 
plainly  shows,  that  the  rules  were  unreason- 
able, and  that  the  switch  engine  was  negli- 
gently run  at  greater  speed  than  was  rea- 
sonable in  the  circumstances.    Dealing  with 
these  subjects,  the   supreme  court  of  the 
state  said   (96  Neb.  87,  146  N.  W.  1024) : 
"The  decedent  was  running  his  engine  un- 
der full  control,  within  the  meaning  of  the 
rule  of  the  company.    There  was  no  express 
rule  as  to  the  speed  allowed  to  the  switch 
engine.     Of  course,  the  law  requires  that 
such  engine  should  not  be  run  at  an  unrea- 
sonable rate  of   speed   under   the   circum- 
stances.   The  engineer  of  the  switch  engine 
must  have  had  a  clear  view  of  the  approach- 
ing engine  for  at  least  420  feet,  and  it  was 
run  at  least  370  feet  of  this  distance  before 
the  collision  occurred.     It  could  have  been 
stopped  within  a  distance  of  60  feet  unless 
running  at  a  greater  speed  than  20  miles 
an  hour;  and,  knowing,  as  the  crew  of  the 
switch  engine  did,  that  No.  1486  [the  extra] 
was  in  the  yards,  to  run  at  a  greater  speed 
than  20  miles  an  hour  in  such  a  locality  and 

4se 


under  such  circumstances  was  in  itself  neg- 
ligence. In  such  a  case  the  court  might 
properly  have  told  the  jury  that  any  rule 
of  the  company  which  permitted  such  action 
was  unreasonable,  and  the  giving  of  an 
erroneous  instruction  as  to  the  reasonable- 
ness of  the  rules  would  be  without  preju- 
dice to  the  defendant."    ' 

While  doubting  that  the  rules,  rightly  un- 
derstood, permitted  the  switching  crew  to 
proceed  at  a  q>eed  which  obviously  en- 
dangered the  safety  of  the  extra,  which  they 
knew  might  be  coming  through  the  cat  on 
the  same  track,  we  agree  that  if  this  was 
permitted  by  the  rules,  they  were  in  that 
respect  unreasonable  and  void.  And  in 
either  case,  we  think  it  is  manifest  that 
there  was  ample  evidence  of  n^ligenco 
whereon  the  company  could  be  held  respon- 
sible under  the  act  of  Congress. 

Judgment  affirmed. 


[556]  BRUCE  SHANKS,  Plff.  in  Err., 

V. 

DELAWARE,  LACKAWANNA,  &  WEST- 
ERN RAILROAD  COMPANY. 

(See  a  C.  Reporter's  ed.  566-660.) 

Master  and  servant  —  employers'  11m- 
biUty  —  when  servant  is  engaged  In 
Interstate  commerce. 

An  employee  in  a  machine  shop  oper- 
ated by  a  railway  company  for  repairing 
parts  of  locomotives  used  by  it  both  in 
interstate  and  intrastate  transportation  ia 
not  employed  in  interstate  commerce  with- 
in the  meaning  of  the  Federal  employers' 
liability  act  of  April  22,  1908  (85  Stat,  at 
L.  65,  chap.  140,  Comp.  SUt.  1013,  %  8657), 
while  engaged  in  takmg  down  and  putting 
into  a  new  location  in  such  shop  an  over- 
head countershaft  through  which  power  is 
communicated  to  some  of  the  machinery 
used  in  repair  work. 

[For  other  cases,  see  Master  and  Servant,  II« 
a,  in  Digest  Sup.  Ct.  1908.} 

[No.  477.] 

Argued  November  30,  1915.     Hecided  Jan- 
uary 10,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  New  York  in  and  for  the  Coun- 
ty of  Kings  in  that  state,  to  review  a  judg- 
ment entered  pursuant  to  the  mandate  of 
the  Court  of  Appeals,  which  affirmed  a 
judgment  of  the  Appellate  Division  of  the 

NoiK. — On  the  constitutionality,  applica- 
tion, and  effect  of  the  Federal  employers' 
liability  act — see  notes  to  Lamphere  v.  Ore- 
gon R.  ft  Nav.  Co.  47  L.RA..(N.S.)  38,  and 
Seaboard  Air  line  R.  Co.  v.  Horton,  L.RJL 
191 5C,  47. 


1916. 


SHAKKS  V.  D£LAWAR£,  L.  4  W.  R.  CO. 


656,  567 


Supreme  Court,  Second  Department,  revers- 
ing, with  A  direction  to  dismiss  Uie  com- 
plaint^  A  judgment  of  the  triAl  term  of  the 
Supreme  Court  in  lAYor  of  plaintiff  in  an 
action  under  the  FedexAl  employers'  lia- 
liiUty  act.     AfTirmed. 

See  same  cAse  below  in  Appellate  Divi- 
sion, 303  App.  Div.  565,  148  N.  Y.  Snpp. 
1034;  in  Court  of  Appeals,  214  N.  Y.  413, 
108  N.  K.  644. 

The  facts  are  stated  in  the  opinion. 

Mr.  Joseph  A.  Sliay  argued  the  cause, 
and,  with  Messrs.  Nash  Rockwood  and  L. 

B.  McKelvejr,  filed  a  brief  for  plaintiff  in 
error: 

As  matter  of  fact  and  as  matter  of  law 
this  plaintiff  was  employed  in  interstate 
commerce  at  the  time  of  his  injury,  within 
the  meaning  of  the  Federal  statute,  as  it 
has  been  construed  and  applied  in  every 
authoritative  decision. 

Pedersen  v.  Delaware,  L.  4  W.  R.  Co.  229 
U.  8.  146-161,  57  1m  ed.  1125-1127,  33  Sup. 
Ct.  R^.  648,  3  N.  C.  C.  A.  779,  Ann.  Oas. 
1914C,  153;  St.  Louis,  8.  F.  4  T.  R.  Co.  v. 
Scale,  229  U.  S.  159,  57  L.  ed.  1133,  33  Sup. 
Ct.  Rep.  651,  Ann.  Cas.  1914C,  156;  North 
Carolina  R.  Co.  v.  Zachary,  232  U.  S.  248, 
66  L.  ed.  591,  34  Sup.  Ct.  Rep.  305,  9  N. 

C.  C.  A.  109,  Ann.  Cas.  1914C,  159;  Second 
Employers'  Liability  Cases  (Mondou  v.  New 
York,  N.  H.  k  H.  R.  Co.)  223  U.  S.  1, 
56  L.  ed.  327,  38  L.R.A.(N.S.)  44,  32  Sup. 
Ct.  Rep.  169,  1  N.  C.  C.  A.  875;  Lamphere 
V.  Oregon  R.  k  Nav.  Co.  47  L.R.A.(N.S.)  1, 
116  a  C.  A.  156,  196  Fed.  336;  Northern 
P.  R.  Co.  v.  Maerkl,  117  C.  C.  A.  237,  198 
Fed.  1;  Central  R.  Co.  v.  Colasurdo,  113, 
C.  C.  A.  370,  192  Fed.  901,  180  Fed.  832; 
Horton  t.  Oregon-Washington  R.  &  Nav.  Co. 
72  Wash.  503,  47  L.RJL(N.S.)  8,  130  Pac 
897;  Law  v.  Illinois  C.  R.  Co.  L.R.A.1915C, 
17,  126  C.  C.  A.  27,  208  Fed.  869;  Eng  t. 
Southern  P.  R.  Co.  210  Fed.  92;  Thomas  v. 
Boston  4  M.  R.  Co.  134  C.  C.  A.  554,  219 
Fed.  180;  Illinois  C.  R.  Co.  v.  Nelson,  122 
C.  C.  A.  258,  203  Fed.  956;  Montgomery  v. 
Southern  P.  Co.  64  Or.  597,  47  L.R.A.(N.S.) 
13,  131  Pac  507 ;  LouUville  4  N.  R.  Co.  t. 
Melton,  218  U.  S.  36-48,  54  L.  ed.  921-926, 
47  L.R.A.(N.S.)  84,  30  Sup.  Ct  Rep.  676; 
Cousins  T.  Illinois  C.  R.  Co.  126  Minn.  172, 
L.R.A.— ,  — ,  148  N.  W.  58;  Seaboard  Air 
Line  R.  Co.  t.  Ilorton,  L.R.A.1915C,  60, 
note;  Darr  ▼.  Baltimore  4  0.  R.  Co.  197 
Fed.  665;  Thomson  v:  Columbia  4  P.  S.  R. 
Co.  205  Fed.  203,  4  N.  C.  C.  A.  925;  John- 
son v.  Great  Northern  R.  Co.  102  C.  C.  A. 
89, 178  Fed.  643;  Zikos  v.  Oregon  R.  4  Nav. 
Co.  179  Fed.  897;  New  York  C.  4  H.  R.  R. 
Co.  T.  Carr,  238  U.  S.  260,  59  L.  ed.  1298, 
35  Sup.  Ct.  Rep.  780,  9  N.  C.  C.  A.  1; 
Thornton  t.  Kansas  City,  M.  4  O.  R.  Co. 
n  Kan.  684,  139  Pac.  410,  Ann.  Cat.  1915D, 
•0  li.  ed. 


{314;   Thompson  v.  Cincinnati,  N.  O.  4  T. 
P.  R.  Co.  165  Ky.  256,  176  S.  W.  1006. 

Mr.  Alexander  Pope  Humphrey  argued 
the  cause,  and,  with  Mr.  William  S.  Jenney, 
filed  a  brief  for  defendant  in  error: 

At  the  time  plaintiff  sustained  the  in- 
juries complained  of  he  was  not  employed  by 
the  defendant  in  interstate  commerce. 

Illinois  C.  R.  Co.  v.  Behrens,  233  U.  S. 
473,  58  L.  ed.  1051,  34  Sup.  Ct.  Rep.  646, 
Ann.  Cas.  1914C,  163;  Delaware,  L.  4  W. 
R.  Co.  V.  Yurkonis,  238  U.  S.  439,  50  L. 
ed.  1397,  35  Sup.  Ct.  Rep.  902. 

Each  case  must  be  decided  in  the  light 
of  the  particular  facts,  with  a  view  of  deter- 
mining whether,  at  the  time  of  the  injury, 
the  employee  is  engaged  in  interstate  busi- 
ness  or  in  an  act  which  is  so  directly  and 
immediately  connected  with  sucli  business  as 
substantially  to  form  a  part  or  a  necessary 
incident  thereof. 

New  York  C.  4  H.  R.  R.  Co.  ▼.  Carr,  238 
U.  S.  200,  59  L.  ed.  1298,  35  Sup.  Ct.  Rep. 
780,  0  N.  0.  C.  A.  !• 

Mr.  Justice  Van  Devanter  delivered  the 
opinion  of  the  court: 

Shanks  sued  the  railroad  company  for 
damages  resulting  from  personal  injuries 
suffered  through  its  negligence  while  ho  was 
in  its  employ,  and  rested  his  right  to 
[557] recover  upon  the  employers'  liability 
act  of  Congress.  His  injuries  were  received 
in  New  Jersey,  and  his  action  was  brought 
in  the  supreme  court  of  New  York.  He  pre- 
vailed at  the  trial,  but  in  the  appellate  divi- 
sion the  judgment  was  reversed,  with  a  di- 
rection that  his  complaint  be  dismissed  with- 
out prejudice  to  any  remedy  he  might  have 
under  the  law  of  New  Jersey,  and  this 
was  affirmed  by  the  court  of  appeals,  the 
ground  of  the  appellate  rulings  being  that 
at  the  time  of  the  injury  he  was  not  cm- 
ployed  in  interstate  commerce.  1G3  App. 
Div.  565,  148  N.  Y.  Supp.  1034;  214  N.  Y 
413,  108  N.  E..  644.  To  obtain  a  review  of 
the  judgment  of  the  court  of  appeals  he 
sued  out  this  writ  ot  error,  which  was 
directed  to  the  supreme  court  because  the 
record  was  then  in  its  possession.  See 
Atherton  v.  Fowler,  91  U.  S.  143,  23  L.  ed. 
265;  Wurts  v.  Hoagland,  105  U.  S.  701,  26 
L.  ed.  1109;  Si6ux  Remedy  Co.  t.  Cope,  235 
U.  S.  197,  59  L.  ed.  193,  35  Sup.  Ct.  Rep.  57. 

In  so  far  as  its  words  are  material  here, 
the  employers'  liability  act  declares  that 
"every  common  carrier  by  railroad  while  en- 
gaging in  commerce  between  any  of  the 
several  states  •  •  •  shall  be  liable  in 
damages  to  any  person  suffering  injury 
while  he  is  employed  by  such  carrier  in  such 
commerce"  [35  Stat,  at  L.  65,  chap.  149, 
Comp.  Stot.  1918,  %  8657],  if  the  injury 
resultt  in  whole  or  in  part  from  the  neirli- 

4tf 


667-660 


SUPIEIEME  COURT  OF  THE  UNITED  STATES. 


Oct.  Temm, 


gence  of  the  carrier  or  of  anj  of  its  officers, 
agents,  or  employees.  Thus  it  is  essential 
to  a  right  of  recovery  under  the  act  not 
only  that  the  carrier  be  engaged  in  inter- 
state commerce  at  the  time  of  the  injury, 
but  also  that  the  person  suffering  the  in- 
jury be  then  employed  by  the  carrier  in 
such  commerce.  And  so  it  results  where 
the  carrier  is  also  engaged  in  intrasti^te 
commerce,  or  in  what  is  not  commerce  at 
all,  that  one  who>  while  employed  therein 
by  the  carrier,  suffers  injury  through  its 
negligence,  or  that  of  some  of  its  officers, 
agents,  or  employees,  must  look  for  redress 
to  the  laws  of  the  state  wherein  the  injury 
occurs,  save  where  it  results  from  the  viola- 
tion of  some  Federal  statute,  such  as  the 
safety  appliance  acts. 

[558]  The  facts  in  the  present  ease  are 
these:  The  railroad  company  was  engaged 
in  both  interstate  and  intrastate  transporta- 
tion, and  was  conducting  an  extensive  ma- 
chine shop  for  repairing  parts  of  locomotives 
used  in  such  transportation.  While  em- 
ployed in  this  shop.  Shanks  was  injured 
through  the  negligence  of  the  company. 
Usually  his  work  consisted  in  repairing  cer- 
tain parts  of  locomotives,  but  on  the  day  of 
the  injury  he  was  engaged  solely  in  taking 
down  and  putting  into  a  new  location  an 
overhead  countershaft — a  heavy  shop  fix  lure 
— through  which  power  was  communicated 
to  some  of  the  machinery  used  in  the  repair 
work. 

The  question  for  decision  is,  Was  Shanks 
at  the  time  of  the  injury  employed  in  inter- 
state commerce  within  the  meaning  'of  the 
employers'  liability  act?  What  his  em- 
ployment was  on  other  occasions  is  im- 
material, for,  as  before  indicated,  the  act 
refers  to  the  service  being  rendered  when 
the  injury  was  suffered. 

Having  in  mind  the  nature  and  usual 
course  of  the  business  to  which  the  act  re- 
lates and  the  evident  purpose  of  Congress 
in  adopting  the  act,  wc  think  it  speaks  of 
interstate  commerce,  not  in  a  technical 
legal  sense,  but  in  a  practical  one  better 
suited  to  the  occasion  (see  Swift  &  Co.  v. 
United  SUtes,  196  U.  S.  375,  398,  49  L.  ed. 
618,  525,  25  Sup.  Ct.  Hep.  276),  and  that 
the  true  test  of  employment  in  such  com- 
merce in  the  sense  intended  is.  Was  the 
employee,  at  the  time  of  the  injury,  engaged 
in  interstate  transportation,  or  in  work  so 
closely  related  to  it  as  to  be  practically  a 
part  of  it? 

Applying  this  test,  we  have  held  that  the 
requisite  employment  in  interstate  com- 
merce exists  where  a  car  repairer  is  re- 
placing a  drawbar  in  a  car  then  in  use  in 
■ach  commerce  (Second  Employers'  Lia- 
biUty  Cases  [Walsh  v.  New  York,  N.  H.  k 
H.  R.  Co.]  223  U.  8.  1,  60  L.  ed.  327,  38 
4SS 


L.R.A.(NJ3.)  44,  82  Sup.  Ct.  Rep.  169,  1  N. 
C.  C.  A.  875) ;  where  a  fireman  is  walking 
ahead  of  and  piloting  through  several 
switches  a  locomotive  which  is  to  be  at- 
tached to  an  interstate  train  and  to  assist 
in  moving  the  same  up  a  grade  (Norfolk  k 
W.  R.  Co.  V.  Earnest,  229  U.  S.  114,  67  L. 
ed.  1096,  38  Sup.  Ct.  Rep.  654,  Ann.  Caa. 
1914C,  172),  [559]  where  a  workman  about 
to  repair  a  bridge  regularly  used  in  inter- 
state transportation  is  carrying  from  a 
tool  car  to  the  bridge  a  sack  of  bolts  needed 
in  his  work  (Pedersen  v.  Delaware,  L.  &  W. 
R.  Co.  229  U.  8.  146,  57  L.  ed.  1125,  33  Sup. 
Ct.  Rep.  648,  Ann.  Cas.  1914C,  153,  3  N.  C. 
C.  A.  779) ;  where  a  clerk  is  on  his  way 
through  a  railroad  yard  to  meet  an  in- 
bound interstate  freight  train  and  to 
mark  the  cars  so  the  switching  crew  will 
know  what  to  do  with  them  when  break- 
ing up  the  train  (St.  Louis,  8.  F.  k 
T.  R.  Co.  V.  Scale,  220  U.  8.  156,  67 
L.  ed.  1129,  33  Sup.  Ct.  Rep.  651,  Ann.  Cas. 
1914C,  156);  where  a  fireman,  having  pre- 
pared his  engine  for  a  trip  in  interstate 
commerce,  and  being  about  to  start  on  his 
run,  is  walking  across  adjacent  tracks  on 
an  errand  consistent  with  his  duties 
(North  Carolina  R.  Co.  v.  Zachary,  232  U. 
S.  248,  58  L.  ed.  501,  34  Sup.  Ct.  Rep.  305, 
Ann.  Cas.  191 4C,  159) ;  and  where  a  brake- 
man  on  a  train  carrying  several  cars  of 
interstate  and  two  of  intrastate  freight  is 
assisting  in  securely  placing  the  latter  on 
a  side  track  at  an  intermediate  station  to 
the  end  that  they  may  not  run  back  on  the 
main  track,  and  that  the  train  may  proceed 
on  its  journey  with  the  interstate  freight 
(New  York  C.  k  H.  R.  R.  Co.  v.  Carr,  238 
U.  S.  260,  59  L.  ed.  1298,  35  Sup.  Ct.  Hep. 
780). 

Without  departing  from  this  test,  we  also 
have  held  that  the  requisite  employment  in 
interstate  commerce  does  not  exist  where  a 
member  of  a  switching  crew,  whose  general 
work  extends  to  both  interstate  and  intra- 
state traffic,  is  engaged  in  hauling  a  train 
or  drag  of  cars,  all  loaded  with  intrastate 
freight,  from  one  part  of  a  city  to  another 
(Illinois  C.  R.  Co.  v.  Behrens,  233  U.  S. 
473,  58  L.  ed.  1051,  34  Sup.  Ct.  Rep.  646, 
Ann.  Cas.  1914C,  163),  and  where  an  em- 
ployee in  a  colliery  operated  by  a  railroad 
company  is  mining  coal  intended  to  be  used 
in  the  company's  locomotives  moving  in 
interstate  commerce  (Delaware,  L.  &  W. 
R.  Co.  T.  Yurkonis,  238  U.  S.  430,  59  L.  ed. 
1397,  35  Sup.  Ct.  Rep.  902).  In  neither 
instance  could  the  service  indicated  be  said 
to  be  interstate  transportation,  or  so  close- 
ly related  to  it  as  to  be  practically  a  pari 
of  it. 

Coming   to   apply   the   test   to   the   case 
in    hand,    it    is    plain    that    Shanks    was 

239  U.  S. 


1915. 


INTER8TATB  AMUSEMENT  00.  ▼.  ALBER'i. 


660,  660 


not  employed  in  interstate  tntniportation, 
[560]  or  in  repairing  or  keeping  in  usable 
condition  a  roadbed,  bridge,  engine,  car,  or 
other  instrument  then  in  use  in  such  trans- 
portation. What  he  was  doing  was  altering 
the  location  of  a  fixture  in  a  machine  shop. 
The  connection  between  the  fixture  and 
interstate  transportation  was  remote  at 
best,  for  the  o|i]y  function  of  the  fixture 
was  to  communicate  power  to  machinery 
used  in  repairing  parts  of  engines  some  of 
which  were  used  in  such  transportation. 
This,  we  think,  demonstrates  that  the  work 
in  which  Shanks  was  engaged,  like  that  of 
the  coal  miner  in  the  Yurkonis  case,  was 
too  remote  from  interstate  transportation 
to  be  practically  a  part  of  it,  and  therefore 
that  he  was  not  employed  in  interstate  com- 
merce within  the  meaning  of  the  employers' 
liability  act. 
Judgment  affirmed* 


INTERSTATE  AMUSEMENT  COMPANY, 

Plff.  in  Err., 

V. 

W.  S.  ALBERT,  Fletch  Catron,  and  Ten- 
nessee Realty  k  Leasing  Company. 

(See  S.  0.  Reporter's  ed.  660-668.) 

Error  to  state  court  »  scope  of  review 

—  finding  of  fact. 

1.  ^1ie  findings  of  fact  are  eonclusive 

upon  the  Federal  Supreme  Court  on  writ 

of  error  to  a  state  court  in  ordinary  cases 

other  than  those  arising  under  the  contract 

clause  of  the  Federal  Constitution,  unless 

there  is  fecund  for  the  insistence  that  a 

Federal  right  has  been  denied  as  the  result 

of  a  finding  that  is  without  support  in  the 

evidence. 

[For    other    cases,     see    Appeal    and    Error, 
tl75-2108.    in  Digest  Sup.  Ct  1908.] 

Error  to  state  court  —  scope  of  roTiew 

—  finding  of  fact. 

2.  Evidence  tending  to  show  the  trans- 
action of  business  within  the  state  by  a  for- 
eign corporation,  engaged  in  booking  the- 
atrical companies  and  vaudeville  acts  for 
theater  owners,  in  consideration  of  a  week 
ly  'booking  fee"  and  a  commission  upon  the 

NoTK. — As  to  review  of  questions  of  fact 
on  writ  of  error  to  a  state  court — see  note 
to  Smiley  v.  Kansas,  49  L.  ed.  U.  S.  646. 

On  state  regulation  of  interstate  or  for- 
eign commerce — see  notes  to  Norfolk  k  W. 
R.  Co.  V.  Com.  13  L.R.A.  107,  and  Glouces- 
ter Ferry  Co.  v.  Pennsylvania,  28  L.  ed.  U. 
&  ]5S. 

As  to  constitutional  equality  of  privi- 
leges, immunities,  and  protection,  generally 
—see  note  to  Louisville  Safety  Vault  4  T. 
Co.  V.  Louisville  k  N.  R.  Co.  14  L.RA.  679. 

On  recognition  or  exclusion  of  foreign  cor- 
porations— see  note  to  Cone  Export  k  Com- , 
mission  Co.  ▼.  Poole,  24  LJLA.  289. 
••  I<.  ed. 


actors'  salaries,  under  contracts  which, 
while  binding  It  to  "use  every  precaution 
to  see  that  artists  fulfil  their  contracts," 
recite  that  it  is  acting  solely  in  the  capacity 
of  agent  of  the  theater  owner,  and  is  not 
responsible  for  failure  of  artists  to  fulfil 
their  contracts,  nor  for  any  accident  or  de- 
lay preventing  them  from  arriving  when 
scheauled,  is  sufiicicnt  to  support,  on  writ 
of  error  to  a  state  court,  a  finding  that  such 
corporation  was  doing  business  within  the 
state  other  than  interstate  commerce. 
[For  other  cases,  see  Appeal  and  Error, 
2176-2208,  in  Digest  Sup.  iX  1908.] 

Foreign  corporatious  —  state  regula- 
tion —  commerce  — >  due  process  of 
law. 

3.  A  foreign  corporation  doin^  local 
business  within  the  state  may,  consistently 
with  the  commerce  and  due  process  of  law 
clauses  of  the  Federal  Constitution,  be  re- 
quired to  file  a  copy  of  its  charter  with  the 
secretary  of  state,  conformably  to  Tenn. 
Laws  1895,  chap.  81,  as  a  condition  pre- 
cedent to  its  right  to  sue  in  the  state  courts 
upon  a  contract  made  in  its  conduct  of  such 
business. 

[For  other   cases,    see  Corporations,    XII.   h, 
in   Digest   Sup.   Ct.   1908.] 

Constitutional  law  —  equal  protection 
of  tlie  laws  »  state  regulation  of  for- 
eign corporation. 

4.  A  forei|;n  corporation  engaged  in 
booking  theatrical  companies  and  vaude- 
ville acts  for  theater  owners  in  considers* 
tion  of  a  weekly  booking  fee  and  a  commis- 
sion on  the  actors'  salaries  may,  consistent- 
ly with  the  equal  protection  of  the  laws 
clause  of  the  Federal  Constitution,  be  re- 
quired to  file  a  copy  of  its  charter  with  the 
secretary  of  state,  conformably  to  a  local 
statute,  as  a  condition  precedent  to  its  right 
to  sue  upon  a  contract  made  in  its  conduct 
of  such  business. 

[For  other  cases,   see  CoDstitutlooal  Law.   lY. 
a,   S.    in   Digest   Sup.   Ct   1908.] 

[No.  69.] 

Argued  November  10,  1915.     Deculed  Jan- 
uary 10,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Tennessee  to  review  a  judprraent 
which,  reversing  a  judgment  of  tlie  Chan- 
cery Court  of  Hamilton  County,  in  that 
state,  directed  the  dismissal  of  a  suit  by 
a  foreign  corporation  which  had  not  filed  a 
copy  of  its  charter  with  the  secretary  of 
state.    Affirmed. 

See  same  case  below,  128  Tenn.  417,  161 
S.  W.  488. 

The  facte  are  stated  in  the  opinion. 


Mr.  G.  H. 

with  Messrs. 
Miller,  filed  i 
There  is  no 
ment,  and  no 
the  company 
contemplated 


West  argued  the  cause,  and, 
W.  £.  Dnunmond  and  W.  B. 
i  brief  for  plaintiff  in  error: 
evidence  to  support  the  judg- 
basis  for  the  conclusion. that 
did  business  in  Tennessee  as 
l^  the  act.    And  to  deny  it 

4SP 


SUPREME  COURT  OF  THE  UNITED  SlAliub 


OCT.  Tjcbm^ 


reooyery  without  any  basis  or  evidence  to 
support  the  judgment  of  denial  is  to  de- 
prive it  of  property  without  due  process  of 
law. 

Kansas  City  Southern  R.  Co.  v.  C.  H.  Al- 
bers  Commission  Co.  223  U.  S.  673,  56  L. 
ed.  556,  32  Sup.  Ct.  Rep.  316;  Creswill  y. 
Grand  Lodge  K.  P.  225  U.  S.  246,  56  L. 
ed.  1074,  32  Sup.  Ct.  Rep.  822;  Wood  t. 
Chesborough,  228  U.  S.  678,  57  L.  ed.  1018, 
33  Sup.  Ct.  Rep.  700;  St.  Louis,  I.  M.  k  S. 
R  Co.  T.  McWhirter,  229  U.  S.  277,  57  L. 
ed.  1186,  33  Sup.  Ct.  Rep.  858;  Washington 
ex  rel.  Oregon  R.  &  Nav.  Co.  v.  Fairchild, 
224  U.  S.  510,  56  L.  ed.  803, '32  Sup.  Ct. 
Rep.  535. 

On  a  writ  of  error  to  a  state  court  in  such 
a  case  this  court  will  review  the  findings 
of  fact  by  the  state  court  and  analyze  the 
facts  when  necessary  to  determine  whether 
or  not  a  Federal  right,  seasonably  claimed, 
has  been  infringed. 

Washington  ex  rel.  Oregon  R.  k  Nav.  Co. 
T.  Fairchild,  224  U.  S.  510,  56  L.  ed.  863, 
32  Sup.  Ct.  Rep.  535;  Northern  P.  R.  Co. 
y.  North  Dakota,  236  U.  S.  585,  59  L.  ed. 
735,  L.R.A.— ,  — ,  P.  U.  R  1915C,  277,  35 
Sup.  Ct.  Rep.  432,  Ann.  Cas.  1016A,  1; 
Norfolk  4  W.  R  Co.  v.  Conley,  236  U.  S. 
.  605,  59  L.  ed.  745,  P.  U.  R.  1015C,  293,  35 
Sup.  Ct.  Rep.  438. 

And  while  generally,  if  a  decision  of  the 
state  court  can  be  upheld  on  an  independ- 
ent ground  it  will  not  be  disturbed,  yet, 
if  such  ground  or  conclusion  can  only  be 
upheld  by  a  denial  of  due  process  of  law, 
the  state  court  will  be  reversed. 

Stewart  v.  Michigan,  232  U.  S.  665,  58 
L.  ed.  786,  34  Sup.  Ct.  Rep.  476. 

Where  a  state  statute  creates  a  new  of- 
fense and  prescribes  the  penalty,  or  gives  a 
new  right  and  declares  a  remedy,  the  pun- 
ishment or  remedy  can  be  only  that  which 
the  statute  prescribes.  D.  R.  Wilder  Mfg. 
Co.  V.  Com  Products  Ref.  Co.  236  U.  S.  165, 
59  L.  ed.  520,  35  Sup.  Ct.  Rep.  308,  Ann. 
Cas.  1916A,  118;  David  Lupton's  Sons  Co. 
y.  Automobile  Club,  225  U.  S.  489,  56  L. 
ed.  1177,  32  Sup.  Ct.  Rep.  711,  Ann.  Cas. 
1914A,  699.  The  Tennessee  statute  places 
no  ban  on  anything  short  of  transacting 
the  usual  and  customary  business  within  the 
borders  of  the  state. 

Advance  Lumber  Co.  y.  Moore,  126  Tenn. 
321,  148  S.  W.  212. 

The  general  right  to  contract  relative  to 
business,  and  to  purchase  or  sell  labor,  is 
protected  from  prohibitive  state  legislation 
by  the  14th  Amendment. 

Adair  v.  United  States,  208  U.  S.  173,  62 
L.  ed.  442,  28  Sup.  Ct  Rep.  277,  13  Ann. 
Gas.  764. 

Thus,  plaintiff  in  error  had  a  right  to 
make  the  contract  involved  in  this  case  and 
44^ 


to  engage  actors  in  Chicago  pursuant  there- 
to. A  judgment  based  solely  upon  a  stat- 
ute against  foreign  corporations  doing  busi- 
ness in  a  state  is  void  when  applied  to  su<^ 
business  done  beyond  the  state,  being  a  dep- 
rivation of  property  without  due  process  of 
law. 

Old  Wayne  Mut.  Life  Aseo.  v.  McDonough, 
204  U.  S.  22,  51  L.  ed.  361,  27  Sup.  Ct. 
Rep.  236;  Simon  v.  Southern  R.  Co.  236  U. 
S.  115,  59  L.  ed.  402,  35  Sup.  Ct.  Rep.  255. 

The  rudiments  of  fair  play  required  by 
the  14th  Amendment  are  wanting  when  a 
corporation  is  deprived  of  its  earned  com- 
pensation for  services  rendered  in  a  foreign 
state  to  a  resident  of  another  state  simply 
because  the  service  rendered  contemplate 
and  results  in  individuals  going  into  the 
domestic  state  for  the  transaction  of  their 
own  business,  and  in  furtherance  of  that 
of  a  resident  of  such  domestic  state. 

Chicago,  M.  k  St.  P.  K.  Co.  v.  Polt,  232 
U.  S.  165,  58  L.  ed.  554,  34  Sup.  Ct.  Rep. 
301. 

The  highest  court  of  a  state  is  sn  instru- 
mentality of  the  state  through  which  the 
latter  may  deprive  a  citizen  of  his  property 
without  due  process  of  law. 

Chicago,  B.  k  Q.  R.  Co.  v.  Chicago,  166 
U.  S.  226,  41  L.  ed.  979,  17  Sup.  Ct.  Rep. 
581;  Abbott  v.  National  Bank,  175  U.  8. 
400,  44  L.  ed.  217,  20  Sup.  Ct.  Rep.  153. 

Any  state  statute,  the  effect  of  which  is 
to  declare  interstate  commerce  unlawful,  is 
itself  invalid  and  unenforceable. 

International  Textbook  Co.  v.  Pigg,  217 
U.  S.  91,  54  L.  ed.  678,  27  L.R.A.(N.S.)  408, 
30  Sup.  Ct.  Rep.  481,  18  Ann.  Cas.  1103; 
International  Textbook  Co.  v.  Lynch,  218 
U.  8.  664,  54  L.  ed.  1201,  31  Sup.  Ct.  Rep. 
226;  Buck  Stove  k  Range  Co.  v.  Vickers, 
226  U.  S.  205,  57  L.  ed.  189,  33  Sup.  Ct. 
Rep.  41;  Hey  man  v.  Hays,  236  U.  8.  178, 
59  L.  ed.  527,  35  Sup.  Ct.  Rep.  403. 

The  contention  tiiat  a  statute  as  con- 
strued and  applied  by  a  state  court  is  void, 
as  an  attempted  state  regulation  of  inter- 
state commerce,  will,  in  event  of  a  decision 
against  such  contention,  support  a  writ 
of  error  from  this  court. 

Adams  Exp.  Co.  v.  Kentucky,  214  U.  8. 
218,  53  L.  ed.  972,  29  Sup.  Ct.  Rep.  633. 

Plaintiff  in  error  did  not  solicit  other  ooa- 
tracts  in  Tennessee  at  the  time  the  one  ia 
question  was  made,  or  during  its  existenosl 
But,  if  it  had  done  so,  as  such  contraeta 
were  to  be  executed  by  it  in  Chicago  ia 
ordinary  course,  the  solicitation  thereof  Ib 
Tennessee  by  traveling  salesmen  would  hava 
been  protected  as  interstate  commcroa 
against  the  burdens  imposed  by  tlie  Tennaa- 
see  statutes. 

Stewart  v.  Michigan,  232  U.  8.  666,  6S 
L.  ed.  786,  34  Sup.  Ct.  Rep.  476;  Crenahair 

330  U.  & 


1915. 


INTBRSTATE  AMUSEMENT  00.  t.  ALBERT. 


▼.  Arkmaiaa,  227  U.  S.  389,  57  L.  ed.  565,  33 
Sup.  Ct  Eep.  294. 

The  transmission  of  a  proposal  for  an  in- 
terstate transaction  is  a  part  of  the  inter- 
state transaction  (Dozier  v,  Alabama,  218 
U.  S.  124,  54  L.  ed.  965,  28  LJtA.(N.S.) 
264,  CO  Sup.  Ct  Hep.  649;  Davis  v.  Virginia, 
236  U.  S.  697,  59  L.  ed.  795,  35  Sup.  Ct 
Rep.  470),  and  a  message  of  proposal,  such 
as  that  sent  by  plaintiff  in  error  from  Chi- 
cago to  Chattanooga, — and  which  the  Ten- 
nessee court  held  to  preclude  secovery  be- 
cause a  doing  of  business  in  Tennessee, — is 
but  a  species  of  interstate  commerce  not  sub- 
ject to  state  regulation. 

Western  U.  Teleg.  Co.  v.  Commercial  Mill 
Co.  218  U.  S.  406,  54  L.  ed.  1088,  36  L.RJL 
(N.S.)  220,  31  Sup.  Ct.  Rep.  59,  21  Ann. 
Cas.  815;  Western  U.  Teleg.  Co.  v.  Brown, 
234  U.  S.  542,  58  L.  ed.  1457,  34  Sup.  Ct. 
Rep.  055,  5  N.  C.  C.  A.  1004. 

A  state  cannot  tax  a  corporation  for 
doing  such  character  of  business,  yet  this 
Tennessee  statute  lays  a  twofold  annual  tax 
on  corporations  subject  thereto. 

Pullman  Co.  v.  Kansas,  216  U.  S.  62,  54 
L.  ed.  384,  30  Sup.  Ct.  Rep.  232;  Western 
U.  Teleg.  Co.  v.  Kansas,  216  U.  S.  1,  54  L. 
cd.  355,  30  Siq>.  Ct.  Rep.  190;  Galveston, 
H.  &  S.  A.  R.  Co.  V.  Texas,  210  U.  S.  217, 
52  X'.  ed.  1031,  28  Sup.  Ct.  Rep.  638;  At- 
chison, T.  k  S.  F.  R.  Co.  V.  O'Connor,  223 
U.  S.  280,  56  L.  ed.  436,  32  Sup.  Ct.  Rep. 
216. 

Neither  can  a  state  tax  the  property  of  a 
foreign  corporation  located  in  another  state, 
or  its  capital  stock  represented  by  such 
property, — but  this  is  precisely  what  the 
Tennessee  statute  does. 

Ludwig  V.  Western  V.,  Teleg.  Co.  216  U. 
S.  146,  54  L.  ed.  423,  30  Sup.  Ct.  Rep.  280; 
Pullman  Co.  v.  Kansas,  216  U.  8.  62,  54  L. 
ed.  384,  30  Sup.  Ct.  Rep.  232. 

Interstate  commerce  includes  the  trans- 
portation of  persons  and  property.  There 
may  be,  therefore,  a  movement  of  persons 
as  well  as  of  property.  That  is,  a  person 
may  move  or  be  moved  in  interstate  com- 
merce. Hence^  if  the  Amusement  Company 
had  been  obligated  to  present  the  artists  ha 
Tennessee  instead  of  merely  contracting  with 
them  to  go  there  and  then  using  every  pre- 
eaution  to  see  that  the  artists  fulfilled  their 
contracts,  the  business  by  it  done  would 
have  been  interstate  commerce. 

Hoke  V.  United  States,  227  U.  8.  320,  57 
L.  ed.  526,  43  L.RJL(N.S.)  906,  33  Sup.  Ct 
Rep.  281,  Ann.  Cas.  1913E,  906. 

The  decision  complained  of  denies  to 
plaintiff  in  error  the  equal  protection  of  the 
laws  of  Tennessee,  contrary  to  the  .14th 
Amendmen  t. 

Advance  Lumber  Ca  t.  Moor«»  126  Tenn. 
m,  148  S.  W.  212. 
•0  Ii.  ed. 


liCr.  Joe  V.  Willlaiiui  argae4  the  eaaeb 
and,  with  Messrs.  F.  M.  Thompson  and  Neal 
L.  Thompson,  filed  a  brief  for  defendants  in 
error: 

Was  the  contract  between  the  plaintiff 
and  defendant  one  of  the  nature  of  commerce 
between  the  states,  or  was  it  of  an  intra- 
state nature? 

Judson,  Interstate  Commerce,  2d  ed.  §  8, 
p.  16;  Paul  V.  Virginia,  8  Wall.  168-183,  19 
L.  ed.  357-361;  International  Textbook  Co. 
V.  Pigg,  217  U.  S.  91,  54  L.  ed.  678,  27 
L.R.A.(N.S.)  493,  30  Sup.  Ct.  Rep.  481,  18 
Ann.  Cas.  1103;  Hooper  v.  California,  155 
U.  S.  648,  39  L.  ed.  297,  5  Inters.  Com.  Rep. 
610,  15  Sup.  Ct.  Rep.  207. 

The  facts  in  the  instant  case  show,  in  ac- 
cordance with  the  authorities,  that  the  plain- 
tiff was  engaged  in  carrying  on  its  usual  and 
ordinary  business  in  Tennessee. 

Diamond  Glue  Co.  v.  United  States  Glue 
Co.  187  U.  S.  611,  47  L.  ed.  328,  23  Sup. 
Ct.  Rep.  206;  Chattanooga  Nat.  Bldg.  k 
L.  Asso.  T.  Denson,  189  U.  S.  408,  47  L.  ed. 
870,  23  Sup.  Ct.  Rep.  630;  Elliott  v.  Parlin 
k  0.  Co.  71  Kan.  665,  81  Pac  500;  Farrior 
V.  New  England  Mortg.  Secur.  Co.  88  Ala. 
275,  7  So.  200. 

"Business*'  is  said  to  be  a  word  of  large 
significance,  and  to  denote  the  employment 
or  occupation  in  which  a  person  is  engaged 
to  procure  a  living.  Goddard  v.  Chaffee,  2 
Allen,  395,  79  Am.  Dec.  706;  Martin  v. 
State,  59  Ala.  36,  3  Am.  Crim.  Rep.  287. 
Under  a  statute  that  any  person  who  shall 
do  any  manner  of  labor,  business,  etc.,  shall 
be  punished,  etc.,  the  loaning  of  money  and 
taking  a  note  therefor  was  held  to  be  busi- 
ness within  the  meaning  of  such  statute. 
Troewert  v.  Decker,  51  Wis.  46,  37  Am. 
Rep.  808,  8  N.  W.  26.  In  Towle  v.  Larrabee, 
26  Me.  466,  it  was  held  that  a  promissory 
note  made  on  Sunday  for  the  price  of  a 
horse  bought  on  that  day  was  void  as  being 
in  contravention  of  the  statute  prohibiting 
trade  and  business.  In  Lovejoy  v.  Whipple, 
18  Vt.  379,  46  Am.  Dec  157,  the  taking  of  a 
promissory  note  executed  upon  Sunday  in 
consummation  of  a  contract  previously  made 
was  considered  business.  "It  thus  seems,*' 
as  said  by  Thurman,  J.,  'Ho  be  the  common 
expression  of  the  courts  that  the  making  of 
a  contract  is  business  within  the  meaning 
of  these  acta."  Bloom  v.  Richards,  2,  Ohio 
St.  388. 

Counsel  for  plaintiff  urges  in  his  brief 
that  the  statutes  of  Tennessee  are  in  con- 
flict with  the  rlfl^tt  given  by  the  Constltu- 
tion,  beeause  of  certain  requirements  in  the 
■tatates  aa  to  fees  which  must  be  paid  by 
foreign  corporations  when  th^  are  domes* 
tieated  in  Tennessee.  No  claim  is  made, 
"however,  that  foreign  corporations  are  die- 

441 


664»  565                   SUPREME  CX)URT  OF  THE  UNITED  STATES.              Oct.  Tkmm, 

criminated  against  as  compared  with  local  process    of    law"    and    "equal    protection" 

corporations  in  Tennessee.  clauses  of  the  14tb  Amendment. 

Baltic  Min.  Co.  ▼.  Massachusetts,  231  U.  Excerpts  from  the  statute  are  set  forth 

S.  68-88,  58  L.  ed.  127-136,  L.RJ1.— ,  — ^  in  the  margin.  1 

84  Sup.  Ct  Rep.  15.  [565]  It  is  the  insistence  of  plaintiflT  in 
A  privilege  tax  on  the  business  of  a  cor-  error  that  it  could  not,  consistently  with  the 

poration  done  within  the  state  is  not  a  tax  cited  provisions  of  the  Federal  Constitution, 

upon  interstate  commerce,  although  the  com-  be  required  to  subject  itself  to  the  law  of 

pany  is  also  engaged  in  business  between  the  the  state  unless  it  was  doing  business  with- 

Btates.  in  the  sUte;   and  that  in  fact  it  did  no 

Pacific  Exp.  Co.  V.  Seibert,  142  U.  S.  339,  .^ch  business,  or,  if  it  did  any,  it  waa  in- 

85  L.  ed.  1036,  3  Inters.  Com.  Rep.  810,  12  terstate  commerce,  not  subject  to  sUte  regu- 
Sup.  Ct.  Rep.  250;  Osborne  v.  Florida,  164  lotion. 

U.  S.  650,  41  L.  ed.  586,  17  Sup.  Ct  Rep.  Respecting  the  effect  of  the  written  oon- 

iL  tract  under  which  the  cause  of  action  arose. 

The  contention  made  and  passed  upon  in  the  court  held  that  it  created  merely  the 

the  sUte  court  cannot  be  enlarged  upon  by  relationship  of  principal  and  agent  between 

assignments  of  error  made  to  brmg  the  case  ^^e  parties;   that  by  it  plaintiff  in  error 

to  ttiis  court.                                      ,  ««^  „  became  the  agent  of  Catron  k  Albert,  bound 

«  9.^''?*"^  *.^;3  ^' J-  Cleveland,  235  U.  to  render  them  the  personal  services  called 

S.  50,  59  L.  ed.  127,  35  Sup.  Ct.  Rep.  21.  j^^  j,y  the  contract  in  consideration  of  the 

It  must  be  conceded  that  a  sUte  may  re-  specified  sums  to  be  paid  by  them  to  it,  and 

strict  the  right  of  foreign  corporations,  not  ^hat  this  consideration  was  to  be  forward- 

only  to  -ue  in  Its  courts  (Bank  of  AugusU  ^  ^^^,    ^    Matron  &  Albert  from  ChatU- 

V.  Earle,  18  Pet.  519,  589,  591,  10  U  ed.  „             Teimessee,    to    Chicago,      Illinois, 

274  308,309;  Anglo-American  Provision  Co.  ^^^^^  ^^,  ^^^  ^^     ,^i„tiff  f„  ,„^^   ^„ 

t'  ^/''io«^o7a^''°  ^'  i^^  ^o\^Px^!  located;  that  by  the  terms  of  the  agreement 

L.  ed   225,  24  Sup.  Ct.  Rep.  92)    but  that  ^^^^^  ,^  ^„^^  ^^  ^^^  ^  be  reiponsible 

in  addition,  a  SUte  may  restrict  the  right  of  ^^  j^.j^^^  ^„  ^^     ^^^  ^^  ^j^^  ^^^^  ^ 

such    corporations    to    engage    in    busmess  j^j^j  ^^j^  contracts,  nor  for  any  accident 

7««    i«  1     "^VJ^V'  V*^«^"^*' 8  Wf  •  or  delay  preventing  their  arrival  in  Chat- 

]11't}\\I^\It''  J^Sr  7V  9*^^'^?^**'  tanooga  at  the  tim^  appointed;  that  under 

pi.^in  IK  s,      ^-  p-     Jht^  ^""^^  ^"-  the  contract  and  the  evidence  showing  tha 

Rep.  610, 15  Sup.  a.  Rep.  207).  ^^^^^.^„   ^^    .^^   .^  ^^   „^^  contemplated 

rmoMt  ■»#      T    xi      -.*-._       J  1.        J  Ai_  ^hat  plaintiff  in  error  should  engage,  nor 

664]  Mr   Justice  Pltne,  dehrered  the  j;^  j^  ^  j„  „  j^,  ,,^„,d  .howl  ew 

opinion  of  the  court:  •      xu      •  *      *  *      *             *  *•          «    7?^ 

ni  •  x*i»  s                              J        .  J         X  >n    the    interstate    transportation    of    the 

Plamtin   in  error  recovered  a  ludflrment  .               g        j     -n        *            j  xu  x     u«i^ 

.              -  . ,             .      -  .,       .  ^      i    *  troupes  of  vaudeville  actors,  and  that  while 

in  one  of  the  courts  of  the  state  of  Tennes*  .a*xx             **•          «         u      ^  — 

.       ..       ^,    ^                "  interstate    transportation    of    such    actors 

see  upon  a  cause  of  action  that  arose  out       .  .x  •  u*  ^*  u *  -     :  .:^     «.     - 

-      ^  ...            .      A    J  X  J  -»#       ^^    ,/»«i^  might  or  might  not  become  an  incident  or 

of  •  written  contract   dated  May  24      009.  jj^^  ^^  the  execution  of  the  contract,  such 

whereby  ,t  agreed  to  "engap  »nd  book"  for  j^tereUte   commerce   wa.   only   incidental. 

the  firm  of  Catron  &  Albert,  then  operating    ^ 

a  theater  in  Chattanooga   Tennessee   a  cer-  ^               ^^^^  ^^ 

tain  number  of  "vaudeville  acts"  each  week  ^^        j22;  amended  by  Act;  of  1895,  chap, 

for  certain  weeks  in  each  year,  during  the  gl,  to  read  as  follows: 

continuance  of  the  contract,  in  considera-  ''Section  1.     .     .    .    That  each  and  every 

tion  of  the  payment  weekly  of  a  "booking  corporation  created  or  organized  under,  or 

fee"  of  $10  and  a  commission  of  5  per  cent  by  virtue  of,  any  government  other  than 

upon  the  salary  of  each  performer.    It  ap-  that  of  the  state,  for  any  purpose  whatever, 

peared  that  plaintiff  in  error  was  a  cor-  desiring  to  own  property,  or  carry  on  buai- 

poration  of  the  state  of  Missouri,  but  had  'Vf**?/?  this  state  of  any  kind  or  character, 

r  situs    in    Chicago.    Illinois.     Upon    the  ^L^  a^y  o'f%?s"^?ha1^^^^ 

ground  that  it  was  guilty  of  noncompliance  "Section  2.     .     .    .    That  it  shall  be  un- 

with  the  statute  of  Tennessee  relating  to  lawful  for  any   foreign  corporation  to  do 

foreign  corporations  doing  'business  in  the  business,  or  attempt  to  do  business,  in  this 

state,  in  that  it  had  failed  to  file  a  copy  of  state  without  first  having  complied  with 
its  charter  in  the  office  of  the  secretary  of 
state,  the  supreme  court  of  Tennessee  re- 
versed the  judgment  and  dismissed  the  suit 
(128  Tenn.  417,  161  S.  W.  488),  and  the 
case  comes  here  upon  questions  raised  un- 
der the  "commerce  clause"  of  the  Consti- 1  gtate  as  fully  as  if  it  were  created  unto 

tution  of  the  United  States  and  the  "due  the  laws  of  the  state  of  Tennessee ;     .    .    J^ 

443  %Z%  U.  8. 


the  provisions  of  this  act, 

"Section  3.  .  .  .  That  when  a  oor* 
poration  complies  with  the  pjpovisions  of 
this  act,  said  corporation  may  then  sue  and 
be  sued  in  the  courts  of  this  state,  and 
shall  be  subject  to  the  jurisdiction  of  ^is 


]S15. 


INTERSTATE  AMUSEMENT  00.  t.  ALBERT. 


56(Mm 


and  not  a  part  of  the  agreement  as  made 
between  the  parties.  It  was  held  that  this 
dreumstance  did  not  exempt  the'  business 
done  under  the  contract  from  state  r^^Ui- 
tion  or  control.  Williams  v.  Fears,  179  U. 
8.  270,  274,  43  L.  ed.  18G,  188,  21  Sup.  Ot. 
Bep.  128,  and  Hooper  v.  California,  165  U. 
8.  648,  G55,  30  L.  cd.  297,  300,  6  Inters. 
Com.  Rep.  610,  15  Sup.  Ct.  Rep.  207,  were 
dted. 

[666]  The  court  further  found  as  matter 
of  fact  that  it  was  the  ordinary  business 
of  plaintiff  in  error  to  send  troupes  of 
actors  from  one  theater  to  another  in 
the  state  of  Tennessee  for  the  purpose 
of  presenting  plays  to  audiences  assembled 
fai  each  separate  theater,  and  from  the 
revenues  derived  by  means  of  such  per- 
formances it  received  an  income,  and  its 
eompensation  arose  from  acts  done  in 
Tennessee  in  the  several  theaters  where 
the  troupes  of  actors  appeared  an4  per- 
formed; that  the  account  sued  on  showed 
more  than  fifty  different  items,  each 
representing  plaintiff  in  error's  share  of 
the  revenues  received  from  as  many  sepa- 
rate and  distinct  performances  by  troupes 
of  actora  which  it  caused  to  appear  in  de- 
fendants' theater  alone;  and  that  for  the 
purpose  of  enlarging  and  extending  its  busi- 
seos  in  Tennessee  plaintiff  in  error  had 
agents  who  entered  that  state  and  made 
contracts  wit]\  other  theater  owners  than 
Catron  k  Albert;  that  its  articles  of  asso- 
ciation stated  its  purpose  to  be  to  conduct 
And  operate  a  general  theatrical  and  amuse- 
ment business,  and  this  purpose  it  carried 
out  by  the  establishment  of  "circuits"  on 
^liieh  were  located  theaters  convenient  one 
to  another,  and  its  scheme  contemplated  the 
Bulking  of  contracts  with  each  of  these 
theaters  similar  to  that  of  Catron  k  Albert, 
and  the  collection  of  its  revenues  arising 
from  booking  fees  and  its  percentages  on 
actors'  salaries;  that,  in  short,  it  was  a 
middleman,  levying  tribute  from  the  owners 
<tf  the  houses  where  amusement  was  afforded 
and  from  the  actors  whose  talents  were  em- 
ployed; and  that  its  claim  in  suit  arose 
out  of  business  thus  conducted. 

It  is  settled  that  such  findings  of  fact, 
in  ordinary  cases  other  than  those  arising 
under  the  "contract  clause"  of  the  Consti- 
tution, are  binding  upon  this  court.  Waters- 
Pierce  Oil  Co.  V.  Texas,  212  U.  S.  86,  97, 
l»  L.  ed.  417,  424,  29  Sup.  Ct.  Rep.  220; 
Rankin  t.  Emigh,  218  U.  S.  27,  32,  64  L. 
•1  915,  920,  80  Sup.  Ct.  Rep.  672;   Mied- 
reich  v.   Lauenstein,  232   U.  S.   236,   243, 
M  L.  ed.  584,  589,  34  Sup.  €t.  Rep.  309. 
But  the  rule  has  its  exceptions,  as,  for  in- 
stancy where  there  is  ground  for  the  insis- 
tence that  a  Federal  [567]  right  has  been 
denied  as  the  result  of  a  finding  that  is  with- 
•0  li.  ed. 


out  support  in  the  evidence.  Southern  P. 
Co.  V.  Schuyler,  227  U.  S.  601,  611,  57  L. 
ed.  662,  669,  43  L.R.A.(N.S.)  901,  33  Sup. 
Ct.  Rep.  277;  North  Carolina  R.  Co.  t. 
Zachary,  232  U.  S.  248,  269,  58  L.  ed.  591, 
505,  34  Sup.  Ct.  Rep.  305,  Ann.  Cas.  191 4C, 
159;  Carlson  v.  Washington,  234  U.  S. 
103,  106,  58  L.  ed.  1237,  1238,  84  Sup.  Ct. 
Rep.  717. 

Plaintiff  in  error  makes  the  point  that  the 
findings  here  are  without  support  in 
the  evidence;  but  this  is  not  well  taken.  The 
evidence  is  meager, — ^none  having  been  of- 
fered by  plaintiff  in  error, — ^but  there  is 
evidence  tending  to  show  business  trans- 
acted in  the  state,  and  it  does  not  clearly 
appear  to  have  been  interstate  business. 
Referenoe  is  made  to  the  form  of  the  con- 
tract, and  especially  its  fifth  paragraph, 
which  states  that  plaintiff  in  error  is  acting 
solely  in  the  capacity  of  agent  of  the  theater 
owner,  and  is  not  responsible  for  failure 
of  artists  to  fulfil  their  contracts,  nor  for 
any  accident  or  delay  preventing  them  from 
arriving  in  Chattanooga  when  scheduled; 
but  the  same  paragraph  binds  plaintiff  in 
error  to  "use  every  precaution  to  see  that 
artists  fulfil  their  contracts."  Moreover, 
the  proliibition  of  the  statute,  which,  as  con- 
strued and  applied  by  the  courts  of  Ten- 
nessee in  a  line  of  cases,  renders  illegal  the 
contracts  of  foreign  corporations  carrying 
on  business  without  complying  with  the 
laws  applicable  thereto,  and  debars  such 
corporations  from  suing  in  the  state  courts 
thereon  ( Gary-Lombard  Lumber  Co.  v.  Thom- 
as, 92  Tenn.  587,  593,  22  S.  W.  743;  New 
Hampshire  Ins.  Co.  v.  Kennedy,  96  Tenn. 
711,  714,  36  S.  W.  709;  Harris  v.  Water  k 
Light  Co.  108  Tenn.  245,  67  S.  W.  811; 
Advance  Lumber  Co.  v.  Moore,  126  Tenn. 
313,  148  S.  W.  212),  was  evidently  esUb- 
lished  as  a  matter  of  public  policy,  not  so 
much  for  the  benefit  of  parties  sued  as  in 
the  interest  of  the  people  at  large;  and  the 
question  is  not  so  much — What  was  agreed 
to  be  done?  as — What  was  done? 

There  being  adequate  support  in  the  rec- 
ord for  the  finding  of  the  supreme  court  of 
the  state  that  plaintiff  in  error  was  doing 
business  in  the  state,  other  than  interstate 
[568]  commerce,  without  complying  with 
the  statute  quoted,  the  contentions  based  up- 
on the  commerce  clause  and  the  due  process 
of  law  clause  alike  must  fall.  For  the  au- 
thority of  the  state  to  restrict  the  right  of  a 
foreign  corporation  to  engage  in  business 
within  its  limits  or  to  sue  in  its  courts,  so 
long  as  interstate  commerce  be  not  thereby 
burdened,  is  perfectly  well  settled.  Paul  v. 
Virginia,  8  Wall.  168,  181,  19  L.  ed.  357, 
360;  Hooper  v.  California,  :155  U.  S.  648,« 
655,  39  L.  ed.  297,  300,  5  Inters.  Com.  Rep. 
610,  15  Sup.  Ct.  Rep.  207;  Bank  of  Augusta 


668 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Teix, 


▼.  Earle,  13  Pet.  519,  580,  591,  10  L.  ed. 
274,  308,  300;  Anglo-American  Provision 
Co.  T.  DavU  Provision  Co.  101  U.  S.  373, 
48  L.  ed.  225,  24  Sup.  Ct.  Rep.  92;  Sioux 
Remedy  Co.  v.  Cope,  235  U.  S.  107,  203,  50 
L.  ed.  103,  107,  35  Sup.  Ct.  Rep.  57. 

The  insistence  based  upon  the  "equal  pro- 
tection" clause  is  unsubstantial,  and  calla 
for  no  discussion. 

Judgment  affirmed. 


HOME  BOND  COMPANY,  Appt., 

V. 

H.  V.  McCHESNEY,  Trustee  in  Bankruptcy 
of  the  Estates  of  the  American  Fibre  Reed 
Company,  and  the  New  England  Chair 
Company,  Bankrupts. 

(See  S.  C.  Reporter's  ed.  668-576.) 

Pledge  ~  of  accounts  recelTable  ~  sale. 

1.  Accounts  receivable  were  not  seld, 
but  were  merely  transferred  as  collateral 
security  for  loans  by  oontracte  under  wliich 
the  transferee  was  to  make  advances  on  ac- 
ceptable accounts  purporting  to-  be  sold  to 
it,  but  which  the  transferrer  was  to  and 
did  collect,  bearing  all  the  expense  in  con- 
nection with  such  collection,  the  so-called 
purchase  price,  viz.,  the  difference  between 
the  face  of  the  accounts  and  the  discount, 
not  being  known  until  payment  of  the  ac- 
count, and  then  depending  upon  the  time 
that  elapsed  since  the  date  of  the  advance, 
and  what  is  deemed  to  have  been  the  de- 
ferred payment  of  the  purchase  price  being 
simply  a  return  of  the  excess  of  the  col- 
lection over  and  above  the  advance  and  the 
discount,  the  contracts  also  providing  that 
in  case  of  the  nonpayment  of  any  of  the 
accounts  at  maturity,  or  of  the  debtor  be- 
coming insolvent,  the  transferrer  should 
repurcnase  the  account  and  pay  therefor 
the  advance  made  thereon,  plus  the  dis- 
count. 

[For  other  cases,    see   Pledge,    II.,    In   Digest 
Sup.   Ct.  1908.] 

Attorneys'  fees  ~  nnder  pledge  of  ac- 
counts receivable. 

2.  Counsel  fees  in  bankruptcy  proceed- 
ings were  not  comprehended  by  a  provision 
in  a  contract  by  wnich  the  bankrupts  trans- 
ferred their  accounts  receivable  as  collateral 
securitJ  for  loans,  that  they  should  reim- 
burse the  transferee  in  case  the  latter  should 
employ  counsel  or  cause  l^al  action  to  be 
instituted  to  enforce  the  payment  of  any 
of  said  accounts  or  any  part  thereof,  either 
fo  its  own  name,  or  in  the  name  of  the  bank- 

nipts. 

[For    other    eases,    see    Attorneys'    Fees,    in 
Digest  Bnp.  Ct  1906.] 

[No.  90.] 

Argued  December  3,   1916.     Deeided  Jan- 
nary  10»  1916. 


APPEAL  from  the  United  SUtes  Circuit 
Court  of  Appeals  for  the  Sixth  Circuit 
to  review  a  decree  which  affirmed  a  decree 
of  the  District  Court  for  the  Eastern  Dis- 
trict of  Kentucky,  disallowing  certain 
claims  against  bankrupt  estates.  Affirmed. 
See  same  case  below,  127  C.  C.  A.  668; 
210  Fed.  893. 
The  facts  are  stated  in  the  opinion. 

Mr.  Robert  Kinkead  argued  the  causey 
and  Messrs.  S.  M.  Sapinsky,  James  B.  Dnf- 
fin,  Owen  D.  Duffin,  and  S.  M.  Stockslagsr 
filed  a  brief  for  appellant: 

It  is  a  rule  of  interpretation  that  where  a 
contract  is  fairly  open  to  two  constructional 
by  one  of  which  it  would  be  lawful,  and  bj 
the  other  unlawful,  the  former  must  bt 
adopted. 

Hobbs  V.  McLean,  117  U.  S.  576,  29  L.  ed. 
943,  6  Sup.  Ct.  Rep.  870;  United  States  t. 
Central  P.  R.  Co.  118  U.  S.  235,  30  L.  ed. 
173,  6*  Sup.  Ct.  Rep.  1038;  Red  Rock  t. 
Henry,  106  U.  S.  596,  27  L.  ed.  251,  1  Sup. 
Ct.  Rep.  434 ;  Lorillavd  v.  Clyde,  86  N.  Y. 
384 ;  Curtis  v.  Gokey,  68  N.  Y.  300 ;  Mandal 
V.  Mandal,  28  La.  Ann.  556;  39  Cyc.  017» 
918;  Jenkins'  Succession,  5  La.  Ann.  682; 
Archibald  v.  Thomas,  3  Cow.  284;  Re  Can- 
field,  113  C.  C.  A.  562,  193  Fed.  934;  Hough- 
ton V.  Burden,  228  U.  S.  161,  57  L.  ed.  780, 
38  Sup.  Ct.  Rep.  491. 

Likewise,  the  courts  will  invariably  con- 
strue an  agreement  so  as  to  give  it  a  legal 
effect  rather  than  a  usurious  one. 

39  Cyc.  917,  918. 

To  constitute  the  offense  of  usury,  there 
must  be  an  intent  to  do  something  which  is 
in  violation  of  the  statute. 

39  Cyc.  919;  Bank  of  United  SUtes  t. 
Waggener,  9  Pet.  378,  9  L.  ed.  163. 

Nothing  in  our  contract  contained,  and 
nothing  in  the  conduct  of  the  parties  in  the 
transactions  thereunder,  is  sufficient  in  any 
degree  to  impute  to  either  the  bankrupt  com- 
panies or  to  our  client  "an  intent"  to  vio- 
late the  statute  against  usury. 

Lloyd  V.  Scott,  4  Pet.  205,  7  L.  ed.  833; 
McAleese  v.  Goodwin,  16  C.  C.  A.  387,  32 
U.  S.  App.  650,  69  Fed.  759;  Gunby  t. 
Armstrong,  66  C.  C.  A.  627,  133  Fed.  417. 

Notwithstanding  the  fact  that  the  vendor 
indorses  or  guarantees  the  accounts  sold, 
such  a  transaction  is  regarded  as  a  valid 
sale  of  a  chattel  with  a  warranty  of  ita 
soundness,  and  the  purchaser  is  allowed  to 
enforce  the  obligation  to  its  full  extent 
against  his  own  indorser  and  aU  prior  par* 
ties. 

39  Cyc.  934;  Oldham  v.  Turner,  8  B. 
Mon.  67;  Durant  v.  Banta,  27  N.  J.*  U 
624;  Cantrell  v.  Ford,  —  Tenn.  — ,  4% 
S.  W.  581;  Leavitt  v.  Delauny,  4  N.  Y. 
364;  Nichols  v.  Pearson,  7  Pet.  103,  8  U 
ed.  623;  I  Page,  Contr.  p.  743,  (  477. 

888  u.  a. 


1913. 


HOM£  BOND  CO.  t.  McCHESNEY. 


66»-572 


Even  in  Alabama  the  doctrine  that  the 
mere  guaranty  bj  the  teller  of  an  aooount 
leoeivable  transforma  the  transaction  from 
a  sale  into  a  loan  hat  been  repudiated  and 
oTertumed. 

Capital  City  Ins.  Co.  t.  Quinn,  73  Ala. 
€G8;  Wildamith  v.  Tracy,  80  Ala.  261;  Orr 
T.  Sparkman»  120  Ala.  9,  23  So.  829. 

An  account  receiyable  in  the  state  of  Ken- 
tucky may  be  sold  just  exactly  like  any 
other  species  of  property. 

Xewl^  T.  HiU,  2  Met  530. 

Where  a  promissory  note  has  been  fairly 
mad^  80  that  the  payee  has  acquired  a  legal 
right  to  sue  the  maker  thereon,  he  may  then 
dispose  of  it  at  any  rate  of  discount  from 
its  face. 

Didcerman  t.  Day,  31  Iowa,  444,  7  Am. 
Rep.  1§6.  . 

The  burden  of  proof  rests  on  the  party 
pleading  usury. 

1  Remington,  Bankr.  p.  697,  %  1199;  Re 
Samuel  Wilde's  Sons,  133  Fed.  662. 

Unless  there  was  a  loan  there  can  be  no 
usury. 

1  Page,  Contr.  p.  741,  9  466;  Struthers  ▼. 
Drexel,  122  U.  S.  487,  80  L.  ed.  1216,  7 
Sup.  Ct.  Rep.  1298. 

A  person  owning  accounts  can  well  afford 
to  sell  them  at  a  discount  in  order  to  ob- 
tain ready  money,  and  such  a  Bale  did  not 
infect  the  transaction  with  the  vice  of  usury. 

Salt  Fork  Coal  Ca  t.  Eldridge  Coal  Co. 
170  ni.  App.  268. 

Mr.  Iiewia  A.  Nuokola  argued  the  cause, 
and,  with  Messrs.  John  Bryce  Baskin  and 
Eli  H.  Brown,  Jr.,  filed  a  brief  for  appellee: 

The  contract  shows  on  its  face  that  it 
is  one  of  lending,  and  not  one  of  sale. 

35  Cyc.  39,  40;  Robinson  v.  Farrelly,  16 
Ala,  472;  Yankey  v.  Lockheart,  4  J.  J. 
Marsh.  276;  Re  Grand  Union  Co.  135  C.  C. 
A.  237,  219  Fed.  353;  Ra  Fishel,  117  C.  C. 
A.  224, 198  Fed.  464. 

Wh^re  there  is  a  dispute  or  uncertainty 
as  to  the  facta,  the  courts  will  be  slow  to 
hold  that  usury  has  been  exacted,  or  was  in 
contemplation;  but  where  there  is  no  dis- 
pute of  fact,  and  it  appears,  or  a  clear  pre- 
ponderance of  the  evidence  or  the  contract 
itself  shows,  that  the  transaction  is  tainted 
with  usury,  then  it  will  be  closely  scruti- 
nized, and  no  shift  or  device  or  scheme  to 
evade  the  statute  will  be  tolerated. 

Bright  V.  Wagle,  3  Dana,  254;  Emig  v. 
Mutual  Ben.  L.  Ins.  Co.  127  Ky.  588,  23 
L.R.A.(N.S.)  828,  106  6.  W.  230;  Ringer  t. 
Virgin  Timber  Co.  218  Fed.  1008;  Edring- 
ton  V.  Harper,  3  J.  J.  Marsh.  354,  20  Am. 
Dec  145. 

Mr.  Justice  Pitney  delivered  the  opinion 
of  tiie  court: 

The  New  England  Chair  Company,  and 
••  Ii.  ed. 


its  successor,  the  American  Fibrd  Reed 
Company,  are  Kentucky  corporations  which 
were  engaged  in  business  at  Frankfort,  in 
tiiat  state.  On  Fd>ruary  1,  1012,  involun- 
tary petitions  in  bankruptcy  were  filed 
against  both  companies,  and  they  were  duly 
adjudicated  bankrupts.  The  two  cases  in 
bankruptcy  were  consolidated  and  directed 
to  proceed  as  one  cause,  and  the  estates 
are  under  administration  as  one  estate.  The 
present  appellant,  the  Home  Bond  Com- 
pany, an  Indiana  corporation,  filed  inter- 
vening petitions,  claiming  certain  funds  in 
the  hands  of  the  trustee,  obtained  by  him 
through  the  collection  of  accounts  receiv- 
able of  the  bankrupt  corporations,  to  which 
the  petitioner  claimed  title  under  two  con- 
tracts in  writing  made  between  it  and  the 
respective  corporations;  one  with  the  New 
England  Chair  Company  under  date  March 
6,  1911,  the  other  with  the  American  Fibre 
Reed  Company  under  date  November  9, 
1911,  after  the  latter  had  taken  over  the 
assets  and  assumed  the  liabilities  of  the 
Chair  Company.  These  agreements  are 
identical  in  form,  and  a  copy  of  one  is  set 
forth  in  the  margin,  i 

[670]  Petitioner  also  set  up  a  elaim 
against  the  trustee  for  the  sum  of  $800, 
being  $100  per  month  from  March  16  to 
October  12,  1912,  inclusive,  paid  by  it  to 
one  Manning,  [671]  who,  in  the  6th  clause 
of  the  contract  of  November  0,  1911,  was 
by  the  Reed  Company  appointed  attorney 
in  fact  to  receive  remittances  in  payment  of 
the  ac6ounts  [672]  receivable  and  transmit 


iThis  agreement,  made  this  6th  day  of 
March,  1911,  at  Indianapolis,  Indiana,  by 
and  between  New  England  Chair  Company, 
hereinafter  called  first  party,  and  the  Uome 
Bond  Company,  hereinafter  called  second 
party. 

Witnesseth,  that,  for  one  dollar  ($1)  and 
other  good  and  valuable  considerations,  each 
to  the  other  paid,  receipt  whereof  is  hereby 
acknowledged,  the  parties  hereto  have 
agreed  and  do  hereby  agree  as  follows: 

First.  That  said  second  partv  shall  buy 
from  said  first  party  all  acceptable  accounte 
tendered  to  it  by  said  first  party  and  pav 
therefor  the  face  value  thereof  less  the  fol- 
lowing discounts: 

1  per  cent  on  accounts  that  are  paid  with- 
in 15  days; 

2  per  cent  on  accounts  that  are  paid  with- 
in 30  days; 

3  per  cent  on  accounts  that  are  paid  with- 
in 60  days; 

4  per  cent  on  accounts  that  are  paid  with- 
in  90  days; 

5  per  cent  on  accounts  that  are  paid  with- 
in 120  days; 

6  per  cent  on  accounts  that  are  paid  with- 
in 150  days; 

7  per  cent  on  accounts  that  are  paid  with- 
in 180  days; 

subject  however,  to  the  terms  of  this  and 

445 


672-^74 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbk, 


them  to  petitioner.  It  was  averred  that 
$100  per  month  was  a  reasonable  charge, 
and  that,  under  the  provisions  of  the  6th 
clause,  the  Reed  Company  was  to  pay  Man- 
ning, but  failed  to  do  so,  and  petitioner 
was  compelled  to  make  such  payment. 

The  trustee  filed  answers  contesting 
the  principal  claim  on  the  ground  that  the 
transactions  between  petitioner  and  the 
bankrupt  corporations  did  not  amount  to 
a  purchase  of  the  accounts  receivable,  but 
constituted  mere  loans  of  money  (with  the 
accounts  assigned  as  collateral  [573]  secu- 
rity) at  usurious  rates  of  interest;  and  trav- 
ersing the  claim  for  moneys  paid  to  Man- 
ning upon  grounds  that  will  appear  below. 
The  special  master  to  whom  the  matter  was 
referred  overruled  the  claim,  sustaining  the 
trustee's  contention,  and  holding,  in  view 
of  the  agreed  statement  of  facts  submitted 
to  him  by  the  parties  in  lieu  of  proof,  that 
the  contracts  were  not  sales  of  the  accounts 
by  the  respective  bankrupt  corporations  to 
petitioner,  but  were  transfers  of  the  ac- 
counts as  security  for  loans;  and  that  these 
loans  were  made  at  usurious  rates  of  inter- 
est, whether  the  contracts  were  made  in 
Indiana  or  Kentucky,  since  the  amounts 
retained  as  a  "service  charge"  under  the 
contracts  amounted  to  at  least  24  per 
centum  per  annum  on  the  moneys  paid  by 


the  petitioner  from  the  time  of  payment  to 
the  time  of  reimbursement,  while  the  stat- 
utes of  both  states  fixed  G  per  centum  per 
annum  as  the  legal  rate  of  interest,  provid- 
ing that  any  excess  might  be  relieved 
against,  and,  if  paid,  recouped,  and  while 
the  Indiana  statute  permitted  interest  up 
to  8  per  cent  to  be  contracted  for  in  writ- 
ing, it  provided  that  if  over  8  per  cent  were 
contracted  for  or  collected,  all  over  6  per 
cent  should  be  forfeited.  The  special  mas- 
ter therefore  held  that  in  the  settlement 
the  transactions  between  the  petitioner  and 
trustee  should  be  purged  of  usury,  and  the 
petitioner  be  treated  as  a  creditor  of  the 
bankrupt  corporations  with  security  for  its 
debt.  As  to  the  claim  for  the  $800  paid  by 
petitioner  to  Manning,  the  special  master 
overruled  this  upon  the  ground  that  there 
was  nothing  to  show  what  services,  if  any, 
were  rendered  by  Manning  as  attorney  in 
fact  during  the  time  from  March  16,  1912, 
to  November  12,  1912.  It  appeared  that 
during  the  continuance  of  the  contracts  be- 
tween the  petitioner  and  the  Chair  Com- 
pany and  the  Reed  Company  respectively. 
Manning  was  an  officer  and  employee  of  the 
respective  companies;  that  for  all  services 
rendered  by  him  while  so  employed  by  these 
companies,  including  such  as  he  [674]  ren- 
dered as  attorney  in  fact,  he  was  to  receive 


any  subsequent  written  agreements  executed 
by  the  parties  hereto. 

Second.  That  the  second  party  shall  pay: 

78  per  cent  on     30  day  accounts; 

77  per  cent  on    60  day  accounts; 

76  per  cent  on     90  day  accounts; 

76  per  cent  on  120  day  accounts; 

74  per  cent  on  150  day  accounts; 

73  per  cent  on  180  day  accounts; 
upon  delivery  to  and  acceptance  by  second 
party  of  such  accounts  duly  assigned  to  the 
party  of  the  second  part;  and  the  remain- 
der, less  discount  and  deductions  taken  by 
the  debtor,  shall  be  paid  immediately  after 
the  collection  of  the  account  by  the  second 
party,  provided,  however,  no  payment  of 
the  remainder  shall  be  made  while  any  of 
said  accounts  are  in  default. 

Third.  The  first  party  shall  properly  as- 
sign and  deliver  to  said  second  partv  all 
accounts  purchased,  including  the  right  of 
stoppage  in  transitu,  either  in  the  name  of 
the  party  of  the  first  part  or  in  the  name 
of  the  party  of  the  second  part  (provided, 
however,  the  party  of  the  second  part  shall 
not  be  charged  with  negligence  in  not  mak- 
ing stoppage  in  transitu  in  any  event  un- 
less thereunto  requested  by  the  party  of 
the  first  part).  It  the  merchandise  named 
in  tiie  accounts  should  be  refused  or  re- 
turned, for  any  cause,  the  title  to  such  mer- 
chandise shall  be  and  remain  in  said  second 
party  until  such  accounts  are  paid. 

Fourth.  Said  first  party  hereby  guaran- 
tees the  payment  to  the  second  party  or  its 
assigns  of  all  aocounta  purchased  hereun- 
44« 


der  according  to  the  terms  thereof.  In  the 
event  of  nonpayment  at  maturity  to  said 
second  party,  of  any  accounts  purchased 
as  aforesaid,  or  should  the  debtor  become 
insolvent,  said  first  party  hereby  covenants 
and  agrees  to  repurchase  said  accounts 
within  five  days  after  receipt  of  written 
notice  thereof,  and  to  pay  therefor  the  same 
amount  paid  to  the  first  party  by  said  sec- 
ond party,  plus  the  discount  provided  for 
in  the  first  paragraph  of  this  contract; 
said  second  party  is  hereby  given  the  right 
without  notice  to  said  first  party  to  credit 
any  moneys  coming  into  its  possession,  be- 
longing to  said  first  party,  on  its  accounts. 

Fifth.  Immediately  after  the  purchase  of 
every  account  hereunder,  said  first  party 
shall  make  upon  its  book  an  entry  showing 
the  absolute  sale  of  said  accounts  to  said 
second  party,  and  said  second  party  is  here- 
by given  the  right  and  privilege  of  audit- 
ing the  books,  accounts  and  records  of  said 
first  party,  relating  to  said  accounts,  at 
any  time  that  it  may  see  fit  so  to  do. 

Sixth.  Whereas  it  is  for  Uie  mutual  bene- 
fit of  the  parties  hereto  that  the  collection 
of  said  accounts  shall  in  the  first  instanoe 
be  remitted  to  the  party  of  the  first  part 
and  in  its  name;  the  party  of  the  first  part 
shall  at  all  times  appoint  some  person  or 
persons  mutually  acceptable  to  both  of  the 
parties  hereto,  their  attorney  in  fact  to  re- 
ceive all  such  remittances  in  whatever  form 
thev  may  be  made,  and  to  transfer,  assign 
and  transmit  all  such  proceeds  to  said 
party  of  the  second  part. 

tt9  V.  B. 


1915. 


HOME  BOND  CO.  t.  MoCHESNBY. 


574,  575 


a  regular  salary,  which  was  paid  to  him  by 
the  Chair  Company  until  the  business  was 
taken  over  by  the  Reed  Company,  and  then 
by  it  until  April  9,  1912,  wben  the  cus- 
todian toolc  charge  of  the  bankrupts'  es- 
tates, with  the  exception  of  salary  for  tlie 
two  weeks  ending  April  9,  which  was  owing 
to  him  from  the  Heed  Company;  that  from 
April  9  to  September  9,  1912,  Manning  was 
in  the  employ  of  the  custodian  as  clerk, 
and  thereafter  in  the  employ  of  the  trustee 
in  the  same  capacity,  and  his  salary  for 
this  emplo3mient  had  been  paid  him  out  of 
the  bankrupts'  estates.  The  special  master 
also  overruled  a  claim  made  by  petitioner 
for  allowance  of  its  counsel  fee  in  the  same 
proceedings.  The  demand  for  such  allow- 
ance was  based  upon  the  8th  clause  of  the 
agreement,  which  it  was  contended  was 
broad  enough  to  embrace  not  only  counsel 
fees  incurred  in  the  collection  of  accounts 
receivable  from  delinquent  debtors  or  cus- 
tomers of  the  Chair  Company  or  the  Reed 
Company,  but  also  counsel  fees  incurred  by 
petitioner  in  collecting  directly  from  either 
of  those  companies  any  accounts  receivable 
which  had  come  into  its  hands  and  for 
which  it  or  its  trustee  in  bankruptcy  failed 
to  account. 

1  hereupon  the  special  master  stated  an 
account    between    the    petitioner    and    the 


bankrupts'  estates,  making  the  proper  al- 
lowances for  the  usury,  finding  a  balance 
of  t>nly  $576.10  due  from  the  trustee  to  the 
petitioner,  and  recommending  that  this  be 
ordered  paid  over,  but  only  upon  condition 
that  the  petitioner  turn  over  or  account 
to  the  trustee  for  the  contracts  of  March 
6,  1911,  and  November  9,  1911,  and  any  un- 
collected accounts,  or  papers  connected  with 
the  uncollected  accounts,  delivered  to  it  un- 
der those  contracts. 

Petitioners'  exceptions  to  this  report  were 
overruled  by  the  district  court  (206  Fed. 
309) ,  and  a  decree  <was  entered  in  accordance 
with  the  recommendations  of  [676]  the 
special  master.  The  circuit  court  of  appeals 
affirmed  the  decree.  127  C.  C.  A.  552,  210 
Fed.  893. 

Upon  the  present  appeal  it  is  insisted 
that  there  was  error  in  holding  that  peti- 
tioner and  appellant,  by  virtue  of  the  con- 
tracts between  it  and  the  bankrupts  and 
the  transactions  and  conduct  of  the  parties, 
did  not  become  the  purchaser  or  owner  of 
the  accounts  receivable  in  question,  and 
that  the  transactions  were  really  loans, 
with  the  accounts  receivable  transferred  as 
collateral  security.  But  it  seems  to  us  so 
entirely  clear  that  the  conclusions  reached 
by  the  special  master  and  approved  by  both 
courts  were  correct  that  we  deem  it  un- 


And  said  party  of  the  first  part  shall  im- 
mediately, upon  receipt  of  such  remittances 
in  whatever  form  the  same  shall  be  made, 
deliver  the  same  to  such  attorney  for  trans- 
mittal to  the  party  of  the  second  part; 
and  said  attorney  shall  at  all  times  have 
access  to  all  mail  received  by  said  party 
of  the  first  part  and  all  books  and  records 
of  the  party  of  the  first  part,  to  discover 
what  payments  and  remittances  are  made 
upon  such  accounts. 

And  in  consideration  of  the  execution  of 
this  agreement  by  the  party  of  the  second 
part,  said  party  of  the  first  part  under- 
takes and  tlgreea  to  guarantee  the  faithful 
conduct  of  said  attorney  in  fact  in  the  re- 
ceipt, assignment  and  transmittal  of  all 
sudi  payments  or  remittances.  And  upon 
the  like  consideration  said  party  of  the 
first  part  shall  pay  unto  said  attorney  in 
fact  compensation  for  all  such  services  so 
rendered  in  that  behalf;  and  that  we  will 
furnish  and  provide  for  said  attorney  in 
fact  all  necessary  clerical  or  stenographic 
assistance  for  making  reports  to  party  of 
the  first  part,  and  all  postage  or  express 
charges  for  transmitting  reports  and  re- 
mittances; said  attorney  in  fact  shall  also 
have  the  right  and  power,  and  it  shall  be 
his  duty  to  indorse  the  name  of  the  party 
of  the  first  part  on  any  freight  or  express 
bill  or  bill  of  lading  relating  to  said  ac- 
counts; and  ratifying  and  confirming  all  its 
said  attorney  may  do  in  the  premises.  And 
said  attorney  in  fact  as  to  all  such  matters 
sball  receive  such  moneys  or  other  remit- 
•0  L.  ed. 


tanoe  solely  for  the  party  of  the  second 
part  and  shall  at  all  times  be  subject  to 
its  exclusive  orders  with  relation  thereto; 
and  it  is  now  mutually  agreed  between  the 
parties  hereto  that  K.  Manning  shall  be 
and  continue  such  attorney  in  fact  to  per- 
form such  duties,  until  by  mutual  agree- 
ment of  the  parties  hereto,  another  person 
shall  be  appointed  in  his  stead. 

Seventh.  That  said  second  party  in  mak- 
ing purchase  of  accounts  hereunder  relies 
upon  the  guaranties  and  covenants  of  said 
first  party  herein  contain. i  and  upon  the 
written  representations  made  to  it  by  said 
first  party  as  to  the  financial  responsibility 
of  said  first  partv;  that  said  written  repre- 
sentation heretofore  made  and  that  may 
hereafter  be  made  are  for  the  purpose  of 
establishing  the  credit  of  said  first  party 
with  said  second  party  so  that  sale  of  ac- 
counts may  be  made  hereunder. 

Eighth.  That  said  first  party  shall  exe- 
cute and  deliver  to  said  second  party  or 
its  assigns,  any  document  necessary  or  prop- 
er to  carry  into  effect  this  contract  and 
should  second  party  employ  counsel  or  cause 
legal  action  to  be  instituted  to  enforce  the 
payment  of  any  of  said  accounts,  or  any 
part  thereof,  either  in  its  own  name  or  of 
the  name  of  the  party  of  the  first  part,  then 
and  in  either  case  said  first  party  shall 
immediately  pay  to  said  second  party  or 
its  assigns,  all  court  costs,  expenses,  attor- 
ney's and  stenographer's  fees  which  may  be 
by  it  expended  In  such  proceedings. 

In  witness  whereof,  etc 

447 


675,  676 


SUPREME  OOURT  OF  THE  UNITED  STATES. 


Oct  Teix, 


necessary  to  discuss  the  matter  at  any 
length.  To  quote  from  the  opinion  of  the 
district  court:  "The  considerations  which 
support  this  conclusion  are  that  the  bank- 
rupts were  to  and  did  collect  the  accounts 
and  bear  all  expenses  in  connection  with 
their  collection;  what  is  claimed  to  have 
been  the  purchase  price  for  the  accounts, 
to  wit,  the  difference  between  the  face  of 
the  accounts  and  the  discount,  was  not 
known  until  payment  of  the  account  and 
receipt  thereof  by  the  company,  and  then 
depended  on  the  time  that  had  elapsed  since 
the  date  of  the  advance  of  the  75  per  cent; 
what  is  claimed  to  have  been  deferred  pay- 
ment of  the  purchase  price  was  simply  a 
return  to  the  bankrupt  of  the  excess  of  the 
collection  over  and  above  the  advance  and 
discount;  and  the  provision  that,  in  the 
event  of  nonpayment  of  any  of  the  ac- 
counts at  maturity,  or  the  debtor  becoming 
insolvent,  the  bankrupt  should  repurchase 
the  account  and  pay  therefor  the  advance 
made  thereupon,  plus  the  discount.  .  .  . 
In  so  far  as  the  contracts  in  question  here 
use  words  fit  for  a  contract  of  purchase, 
they  are  mere  shams  and  devices  to  cover 
loans  of  money  at  usurious  rates  of  inter- 
est. That  the  company  was  not  adverse 
to  the  use  of  shams  is  otherwise  apparent 
from  the  use  by  it  of  the  word  'service,'  in 
ifts  dealings  with  the  bankrupts  under  the 
^ntracts,  [676]  to  characterize  the  dis- 
counts. In  any  view  of  the  contracts  those 
discounts  were  not  charges  for  services  ren- 
dered the  bankrupts.  Loans  are  never  re- 
garded as  services." 

Houghton  V.  Burden,  228  U.  S.  161,  57 
L.  ed.  780,  33  Sup.  Ct.  Rep.  491,  affirming 
Re  Canfield,  113  C.  C.  A.  562,  193  Fed.  034, 
is  plainly  distinguishable,  for  there  the 
contract  contemplated  actual  services  by 
the  lender,  and  this  provision  was  found 
not  to  have  been  a  mere  cover  for  usury. 

The  rulings  adverse  to  the  claim  tor 
moneys  paid  to  Manning  and  for  counsel 
fees  in  the  proceedings  are  so  manifestly 
correct  as  to  require  no  discussion. 

Decree  affirmed. 


KANAWHA     ft     MICHIGAN    RAILWAY 
COMPANY,  Plff.  in  Err., 

V. 

T.  L.  KERSE,  Administrator  of  the  Estate 
of  Thomas  P.  Barry,  Deceased. 

(See  S.  C.  Reporter's  ed.  676-^82.) 

Master  and  servant  ~  employers'  Ila- 
bllitj  —  negligence. 

1.  It  is  actionable  negligence  under  the 
employers'  liability  act  of  April  22,  1908 
(35  Stat  at  L.  66,  chap.  149,  Comp.  Stat. 
44S 


1913,  §  8657),  for  a  railway  companv, 
through  its  employees,  to  conduct  its  switch- 
ing operations  upon  a  private  switch  ob- 
structed in  such  a  manner  as  to  endanger 
the  lives  of  brakemen  upon  its  cars. 
[For  other  cases,  see  Master  and  Servant, 
II.  a,    in  Digest  Sup.  Ct.  1908.] 

Trial  —  qnesUon  for  jnr  j  ~  assumption 
of  risk. 

2.  The  trial  court  cannot  be  charged 
with  error  in  refusins  to  take  the  question 
of  the  assumption  of  risk  from  the  jury 
in  an  action  under  the  Federal  employers' 
liability  act  of  April  22,  1908  (35  Stat,  at 
L.  65,  chap.  149,  Comp.  Stat.  1913,  §  8657), 
unless  the  evidence  tending  to  diow  sudi 
assumption  of  risk  was  clear  and  from  ua- 
impeached  witnesses  and  free  from  contra- 
diction. 

[For    other   cases,    see    Trial,    VI.    e.    tL    In 
Digest   Sup.   Ct.  1908.] 

Appeal  —  harmless  error  ^  refnsln^  re- 
quested instruction. 

3.  Error  in  refusing  a  requested  in- 
struction does  not  require  a  reversal  of  the 
jud^ent  where  the  jury,  by  its  q>eciflo 
lindmffs  of  fact,  distinctly  n^Uved  the 
h^otnesis  upon  which  alone  ue  instruc- 
tion was  based. 

[For    other    cases,     see    Appeal    and    Error. 
4737-4739.   in  Digest  Sup.  CCvM,^ 

[No.  129.] 

Argued  December  10,  1915.     Decided  Jan- 
uary 10,  1916. 

IN  ERROR  to  the  Circuit  Court  of  Kana- 
wha County,  in  the  State  of  West  Vir- 
ginia,  to   review  a  judgment   in   favor   of 
plaintiff   in   an   action   under   the   Federal 
employers'  liability  act.    Affirmed. 
The  facts  are  stated  in  the  opinion. 

Messrs.  Ijeroj  Allebaeh  and  W.  N.  Kiny 
argued  the  cause  and  filed  a  brief  for  plain- 
tiff in  error: 

The  evidence  will  be  analyzed  by  the  Fed- 
eral Supreme  Court  on  a  writ  of  error  to  a 
state  court  to  the  extent  necossiiry  to  g^ve 
the  plaintiff  in  error  the  benefit  of  Its  as- 
serted Federal  right. 

North  Carolina  R.  Co.  v.  Zachaiy,  232 
U.  S.  248,  58  L.  ed.  591,  34  Sup.  Ct  Rep. 
305,  9  N.  C.  C.  A.  109,  Ann.  Cas.  lOUC, 
159. 

The  burden  of  proving  n^ligence  on  the 
part  of  the  defendant  rested  upon  the  plain- 
tiff. 

Southern  Railway-Carolina  Div.  t.  Ben- 
nett, 233  U.  S.  80,  58  L.  ed.  860,  34  Sup. 
Ct.  Rep.  566. 

Note. — On  the  constitutionality,  applica- 
tion, and  effect  of  the  Federal  employers' 
liability  actr— see  notes  to  Lamphere  t.  Ore- 
gon R.  k  Nav.  Co.  47  L.R.A.(N.S.)  38,  and 
Seaboard  Air  line  R.  Co.  t.  Horton,  L.RA. 
19150,47. 

%%%  U.  S. 


1915. 


KANAWHA  &  M.  R.  CO.  t.  KERSE. 


678 


The  raUway  company  was  not  liable  un- 
less negligence  was  shown. 

Ibid.;  Seaboard  Air  Line  B.  Co.  t.  Hor- 
ton,  233  U.  S.  492,  58  L.  ed.  1062,  L.R.A. 
1915C,  1,  34  Sup.  Ct.  Rep.  635,  8  N.  C.  C. 
A.  834,  Ann.  Cas.  1915B,  475. 

To  hold  that,  under  the  statute,  the  rail- 
road company  is  liable  for  the  injury  or 
death  of  an  employee  resulting  from  any 
defect  or  insufficiency  In  its  cars,  engines, 
appliances,  etc.,  however  caused,  is  to  take 
from  the  act  the  words  "due  to  its  negli- 
gence.'' 

The  plain  effect  of  these  words  is  to  con- 
dition the  liability  upon  negligence;  and 
had  there  been  doubt  before  as  to  the  com- 
mon-law rule,  certainly  the  act  now  limits 
the  responsibility  of  the  company  as  indi- 
eated. 

Seaboard  Air  Line  R.  Co.  t.  Horton, 
supra. 

Assumption  of  risk  and  the  negligence  of 
plaintiff  were  available  as  defenses. 

Ibid.;  Farley  v.  New  York,  N.  H.  ft  H. 
R.  Co.  87  Conn.  328,  87  Atl.  990;  Hogg,  PL 
ft  Forms,  §  228,  pp.  184,  185;  Ridgeley  v. 
West  Fairmont,  46  W.  Va.  445,  33  S.  E. 
236 ;  Woodell  v.  West  Virginia  Improv.  Co. 
38  W.  Va.  47,  17  S.  E.  386;  Williamson  v. 
Newport  News  ft  M.  Valley  Co.  34  W.  Va. 
657,  12  L.R.A.  297,  26  Am.  St.  Rep.  927, 
12  S.  E.  824;  Oliver  v.  Ohio  River  R.  Co. 
42  W.  Va.  703,  26  S.  E.  444;  Sanderson  v. 
Panther  Lumber  Co.  50  W.  Va.  42,  55  L.R.A. 
008,  88  Am.  St.  Rep.  841,  40  S.  E.  368 ;  Pan- 
key  V.  Atchison,  T.  ft  S.  F.  R.  Co.  180  Mo. 
App.  185,  168  S.  W.  274,  6  N.  C.  C.  A.  74. 

The  refusal  of  the  trial  court  to  instruct 
the  jury  to  find  in  favor  of  the  railway  com- 
pany denied  to  the  railway  company  its 
right  to  immunity  from  liability  under  the 
Federal  employers'  liability  act,  and  is, 
therefore,  error,  calling  for  a  reversal  of  the 
judgment. 

St.  Louis,  I.  M.  ft  S.  R.  Co.  v.  McWhirter, 
229  U.  S.  265,  282,  67  L.  ed.  1179,  1188, 
33  Sup.  Ct.  Rep.  868;  Hoylman  v.  Kanawha 
ft  M.  R.  Co.  65  W.  Va.  270,  22  L.RJl.(N.S.) 
741,  64  S.  E.  536,  17  Ann.  Cas.  1149. 

The  uncontradicted  evidence  clearly 
ahowed  actual  knowledge  on  the^  part  of 
Barry  of  the  presence  of  the  obstruction  over 
the  track  and  of  the  dangers  surrounding  it. 

Melton  V.  Chesapeake  ft  0.  R.  Co.  64  W. 
Va.  J  68,  61  8.  E.  39. 

Mr.  George  A.  Berry  argued  the  cause, 
and,  with  Mr.  R.  F.  Downing,  filed  a  brief 
lor  defendant  in  error: 

The  facts,  and  the  conclusions  to  be  drawn 
from  them,  are  for  the  Jury,  and  cannot  be 
reviewed  by  the  Federal  Supreme  Court  up- 
on writ  of  error. 

Standard  Oil  Co.  t.  Brown,  218  U.  &  78, 


87,  54  L.  ed.  039,  946,  30  Sup.  Ct.  Rep. 
669;  Herencia  v.  Guzman,  219  U.  S.  44,  55 
L.  ed.  81,  81  Sup.  Ct.  Rep.  135;  United 
States  Exp.  Co.  v.  Ware,  20  WalL  543,  22 
L.  ed.  422;  New  York,  L.  E.  ft  W.  R.  Co.  v. 
Winter,  143  U.  S.  60,  75,  86  L.  ed.  71,  80, 
12  Sup.  Ct.  Rep.  856,  8  Am.  Neg.  Cas.  690; 
Lincohi  t.  Power,  151  U.  S.  486,  438,  38 
L.  ed.  224,  225,  14  Sup.  Ct.  Rep.  887; 
Humes  v.  United  States,  170  U.  S.  210,  42 
L.  ed.  1011, 18  Sup.  Ct  Rep.  602. 

The  danger  from  injury  from  coming  in 
contact  with  this  piece  of  timber  was  not 
one  of  the  risks  incident  to  Barry's  em- 
ployment as  a  brakeman  in  the  employ  of 
the  defendant. 

Seaboard  Air  Line  R.  Co.  t.  Horton,  283 
U.  S.  601,  505,  58  L.  ed.  1068,  1070,  L.Rji. 
1915C,  1,  34  Sup.  Ct  Rep.  635,  8  N.  C.  C.  A. 
834,  Ann.  Cas.  1915B,  475;  Erslew  t.  New 
Orleans  ft  N.  E.  R.  Co.  49  La.  Ann.  86,  21 
So.  153;  New  York,  N.  H.  ft  H.  R.  Co.  t. 
CLeary,  35  C.  C.  A.  562,  93  Fed.  737; 
Holden  t.  Fitchburg  R.  Co.  129  Mass.  268, 
87  Am.  Rep.  343;  Gates  t.  Chicago,  M.  ft 
St.  P.  R.  Co.  2  S.  D.  422,  50  N.  W.  907; 
Chesapeake  ft  O.  R.  Co.  t.  Cowley,  02  C.  C. 
A.  201,  166  Fed.  283;  Norfolk  ft  W.  R.  Co. 
V.  Beckett,  00  C.  C.  A.  25,  163  Fed.  479; 
Ohio,  L  ft  W.  R.  Co.  t.  Johnson,  31  111. 
App.  183;  Lindsay  v.  Norfolk  ft  S.  R.  Co. 
132  N.  C.  59,  43  6.  E.  511, 13  Am.  Neg.  Rep. 
597;  Greenleaf  t.  Dubuque  ft  S.  C.  R.  Co. 
33  Iowa,  52,  14  Am.  N^.  Cas.  607;  Mc- 
Duffee  v.  Boston  ft  M.  R.  Co.  81  Vt  62,  130 
Am.  St  Rep.  1019,  69  Atl.  124;  Coles  v. 
Union  Terminal  R.  Co.  124  Iowa,  48,  99 
N.  W.  108;  Nance  t.  Newport  News  ft  M. 
Valley  R.  Co.  13  Ky.  L.  Rep.  654,  17  S.  W. 
570;  Pittsburgh,  C.  C.  ft  St  L.  R.  Co.  t. 
Parish,  28  Ind.  App.  189,  91  Am.  St.  Rep. 
120,  62  N.  E.  514;  Wright  v.  Yazoo  ft  M. 
Valley  R.  Co.  197  Fed.  94. 

Mr.  Justice  Pitney  delivered  the  opinion 
of  the  court: 

This  was  an  action  under  the  Federal 
employers'  liability  act  to  recover  damages 
because  of  the  death  of  one  Barry,  a  brske- 
man  in  the  Railway  Company's  yard  at 
Charleston,  West  Virginia,  on  April  23, 
1911.  It  was  pleaded  and  was  proved  with- 
out dispute  that  he  received  injuries  re- 
sulting in  his  death  while  employed  in  inter- 
state commerce  by  the  Railway  Company, 
admittedly  a  oonmion  carrier.  There  was  a 
verdict  in  favor  of  the  administrator,  and 
the  supreme  oourt  of  appeals  of  West  Vir-' 
ginia  refused  to  allow  a  writ  of  error  to 
review  the  resulting  judgment;  hence  our 
writ  was  directed  to  the  trial  court. 

The  principal  argument  of  plaintiff  in 
error  is  addressed  to  the  refusal  of  the 
court  to  direct  a  verdict  in  favor  of  de- 


«0  L.  ed. 


29 


44 


678-^81 


8UPREMB  OOXJRT  OF  THE  UNITBD  STATES. 


Oct.  Tebm» 


fendant  upon  the  ground  that  there  was  no 
proof  of  negligence  on  the  part  of  the  Rail- 
way Company,  and  that  there  was  clear  and 
undisputed  proof  that  Barry  assumed  the 
risk  of  such  an  injury  as  that  which  re- 
sulted in  his  death. 

It  appears  that  Barry  was  an  experienced 
yard  brakeman,  and  was  employed  in  that 
capacity  by  the  Railway  Company  in  its 
Charleston  yard.  Among  the  industries 
served  by  the  yard  was  that  of  the  Kana- 
wha Brewing  [670]  Company,  which  had  a 
private  switch  running  through  its  premises 
and  connecting  with  defendant's  main  line. 
Some  time  prior  to  April  23,  1011,  carpen- 
ters in  the  employ  of  the  Brewing  Company 
had  placed  one  or  two  pieces  of  timber, 
about  2  inches  thick  and  3  to  6  inches  wide, 
in  a  horizontal  position  across  the  switch 
track,  and  at  a  height  between  3  feet  apd 
4i  feet  above  the  top  of  an  ordinary  box 
car.  The  timber  was  secured  by  nails  to 
two  buildings  on  opposite  sides  of  the  track. 
There  was  a  conflict  of  testimony  as  to  the 
iMigth  of  time  that  the  timber  had  been  in 
position  prior  to  the  accident,  witnesses 
fixing  it  at  periods  varying  from  two  or 
three  days  to  a  month.  It  was  necessary 
for  members  of  defendant's  yard  crew  to 
pasr  in  and  out  of  the  switch  and  under  the 
obstruction  frequently.  The  timber  was  in 
plain  view,  but  because  of  a  sharp  curve  in 
the  switch  track  could  be  seen  by  those 
upon  the  top  of  a  car  for  only  a  short  dis- 
tance when  approaching  it.  On  the  23d 
of  April  a  switching  crew,  of  which  Barry 
was  that  day  a  member,  went  upon  the 
switch  to  haul  out  upon  the  main  line  a  car 
destined  for  interstate  commerce.  The  en- 
gine, in  charge  of  one  Leonard,  was  backed 
in  upon  the  switch,  and  Barry  coupled  up 
the  car,  which  was  an  ordinary  box  car, 
and  then  climbed  to  the  top  of  it.  Leonard 
started  to  pull  out  of  the  switch,  and  as 
the  train  proceeded  Barry,  who  was  stand- 
ing near  the  rear  end  of  the  car,  and  not 
looking  forward,  but  sidewise  (presumably 
watching  Wintz,  the  conductor,  who  was 
standing  upon  the  ground,  in  charge  of  the 
train),  came  in  contact  with  the  timber 
and  was  thrown  to  the  ground,  sustaining 
a  facture  of  the  skull,  from  which  he  soon 
died. 

The  action  of  the  Railway  Company, 
through  its  employees,  in  conducting  its 
switching  operations  upon  a  switch  obstruct- 
ed, as  this  one  was,  in  such  manner  as  to 
endanger  the  lives  of  brakemen  upon  its 
cars,  speaks  so  clearly  of  negligence  that 
no  time  need  be  spent  upon  it.  [680]  The 
evidence  that  the  timber  had  been  in  the  po- 
sition described  for  a  considerable  period  of 
time  was  presumptive  evidence  of  notice  to 
the  company;  besides  which,  the  switch  en- 
450 


u 


gineer  and  conductor  both  testified  to  ac- 
tual knowledge  on  their  part,  prior  to  the 
time  of  the  accident  to  Barry.  Under  the 
employers'  liability  act  (35  SUt  at  L.  66, 
chap.  149,  §  1,  Comp.  Stat.  1913,  §  8657)  tb« 
action  lies  for  "injury  or  death  resulting  in 
whole  or  in  part  from  the  negligence  of  any 
of  the  officers,  agents,  or  employees  of  such 
carrier." 

Upon  the  question  of  assumption  of  risk, 
the  case  for  the  Railway  Company  was 
stronger.  One  Forbes,  a  fellow  brakeman, 
testified  that  Barry  had  worked  on  the  same 
crew  with  witness  during  all  the  time  he 
was  employed  by  the  company,  this  being 
something  like  a  month;"  that  the  ob- 
struction across  the  Brewing  Company's 
track  had  been  there  "pretty  near  the  whole 
time  Mr.  Barry  was  working  for  the  com- 
pany,— ^must  have  been  there  something  like 
a  month ;"  that  "I  told  Mr.  Barry  to  be  care- 
ful and  watch  this  piece  of  timber,  myself, 
and  I  and  Mr.  Barry  had  passed  under  it 
ourselves,  and  we  had  to  get  down  this  way 
(witness  stoops  quite  low)  to  get  under  the 
piece  of  timber  on  the  box  car,  and  I  told 
him  several  times  about  watching;"  and 
that  he  and  Barry  probably  went  in  on  the 
switch  together  two  or  three  times  a  day, 
and  he  had  often  seen  Barry  go  under  the 
obstruction.  And  Wints,  the  conductor,  tea- 
tified  that  Barry  commenced  work  for  the 
company  "about  the  first  of  the  month,  and 
worked  up  until  the  23d;"  also  that  "I  no- 
tified him  about  the  overhead  pieces,  to  bt 
careful  and  watch  out  for  them."  This 
testimony,  as  seen  in  print,  certainly  seems 
convincing,  although  Wints,  upon  crosB*«K- 
amination,  could  not  say  but  that  he  had 
told  Mr.  Kerse,  the  administrator,  that  he 
and  Barry  had  "never  had  any  conversatioB 
at  all  about  this  overhead  obstruction." 

But  there  was  substantial  contradiction 
of  the  testimony  [681]  of  these  witnesses. 
Leonard,  the  engineer  of  the  yard  locomotive^ 
called  as  a  witness  for  plaintiff,  testified  dis- 
tinctly that  the  day  on  which  Barry  met  his 
death  was  the  first  that  the  witness  had  seen 
him;  that  he  did  not  know  whether  Barry 
was  employed  by  the  Railway  Company  or 
not.  And  one  Greter,  called  by  defendant^ 
testified  that  it  was  to  him  Barry  had  ap- 
plied for  employment  as  yard  brakeman,  and 
he  identified  the  written  application  signed 
by  Barry;  he  also  testified  that  Barry  en- 
tered the  service  of  the  company  "about 
three  or  four  days"  after  the  application  was 
approved.  The  application  itself  was  in- 
troduced in  evidence  by  defendant;  it  Is 
dated  March  31,  1911,  and  is  indorsed  "Ap- 
proved, A.  N.  Lyon,  Supt.,  4/14/1911."  Tk« 
latter  date,  coupled  with  Greter's  testimony, 
would  seem  to  fix  April  17th  or  18th  (five  or 
six  days  before  the  accident)  as  the  earliest 


1915. 


NEW  YORK  C.  ft  H.  IL  R.  00.  T.  GRAY. 


581-im 


date  on  which  Barry  wm  employed  by  the 
Railway  Company.  And  this  is  so  inconsist- 
ent with  a  material  part  of  the  testimony 
of  Forbes  and  Wintz  that  the  jury  may  rea- 
sonably have  concluded  that  their  testimony 
ihould  be  rejected  in  toto, — falsus  in  uno, 
falsus  in  omnibus, — and  that  in  truth,  as 
indicated  by  the  testimony  of  Leonard,  Bar- 
ry had  never  worked  upon  the  Brewing  Com- 
pany's switch  previous  to  the  time  of  the 
disaster.  The  burden  of  proof  of  the  as- 
sumption of  risk  was  upon  defendant,  and 
unless  the  evidence  tending  to  Ahow  it  was 
clear  and  from  unimpeached  witnesses,  and 
free  from  contradiction,  the  trial  court 
could  not  be  charged  with  error  in  refus- 
ing to  take  the  question  from  the  jury. 

Only  one  matter  remains  to  be  mentioned. 
The  court  refused  to  instruct  the  jury,  as 
requested  by  defendant,  '^at  if  they  find 
from  the  evidence  that  Thomas  P.  Barry 
knew  of  the  presence  of  the  piece  of  timbcar 
over  the  track  of  the  Kanawha  Brewing 
Company,  and  knew  that  it  would  not  dear 
a  man  standing  on  the  top  of  a  bos  car,  and 
with  such  knowledge  continued  in  the  serv- 
ice of  [582]  the  Kanawha  ft  Michigan  Rail- 
way Company,  where  his  duties  required  him 
to  pass  under  said  piece  of  timber,  then  said 
Gliomas  P.  Barry  must  be  held  to  have  as- 
sumed the  risk  of  being  injured  by  being 
struck  by  said  piece  of  timber  and  there  can 
be  no  recovery  by  the  plaintiff  herein.^ 

Since  knowledge  of  a  fixed  obstruction 
over  the  track  in  such  a  position  as  not  to 
clear  a  man  standing  upon  the  top  of  a  box 
ear  would  seem  necessarily  to  import  to  an 
experienced  brakeman  that  there  was  a  risk 
of  injury  to  him  in  that  situation,  and  since 
there  was  no  evidence  of  objection  by  Barry 
or  promise  of  reparation  by  his  employer  to 
rebut  tiie  presumptien  that  the  risk  was 
assumed,  the  refusal  of  this  request  i^pears 
plainly  erroneous.  But  this  does  not  result 
in  a  reversal  of  the  judgment  under  review, 
because  by  specific  findings  of  fact  the  jury 
negatived  the  hypothesis  upon  which  alone 
the  instruction  was  based.  In  response  to 
particular  interrogatories  submitted  by  the 
court,  they  found  that  Barry  did  not  know 
that  the  piece  of  timber  was  stretched  over 
the  track,  and  (of  course)  did  not  know  that 
the  timber  was  so  low  that  it  would  not 
dear  him  standing  upon  the  top  of  the  box 
ear. 

A  judgment  is  not  to  be  reversed  for  an 
error  by  which  the  plaintiff  in  error  cannot 
have  been  prejudiced.  And  the  refusal  of  an 
instruction  as  to  the  legal  result  that  would 
follow  only  upon  the  hypothesis  that  the  de- 
ceased knew  of  the  presence  of  the  timber, 
and  knew  it  would  not  clear  a  man  stand- 
ing upon  the  top  of  a  box  car,  became  legal- 
ly insignificant  when  the  jury  had  in  its ' 
•0  Ii.  ed. 


findings  distinctly  negatived  the  faets  that 
made  up  the  hypothesis.  Thus  the  progress 
of  the  trial  rendered  the  error  wholly  im- 
material  to  the  merits.  Greenleaf  v.  Birth, 
5  Pet  182,  135,  8  L.  ed.  72,  73;  Fidelity  ft 
D.  Co.  V.  Courtney,  186  U.  S.  342,  351,  46 
L.  ed.  1108,  1198,  22.  Sup.  Ct  Rep.  888. 
Judgment  affirmed. 


[683]  NEW  YORK  CENTRAL  ft  HUDSON 
RIVER  RAILROAD  COMPANY,  Plff.  in 
Err  .9 

V. 

CHARLES  P.  GRAY. 
(See  S.  C.  Reporter's  ed.  589-687.) 

Carriers  —  Federal  regulation  ~  In- 
Talldatinc  contraot  for  free  trans- 
portation ~  recoverj  of  contract  price. 

There  is  nothing  in  the  prohihitioB 
of  the  Hephum  act  of  June  20,  1906  (34 
Stot.  at  t.  587,  chap.  3501,  Comp.  Stat. 
1913,  §  8569),  S  2,  against  charging,  col- 
lecting, or  receiving  a  greater  or  less  or  dif- 
ferent compensation  for  transportation  than 
that  specified  in  the  carrier's  published 
rates,  which  prevents  or  relieves  a  earrier 
from  making  just  compensation  in  money 
for  the  unpaid  balance  of  the  purchase  price 
of  a  map  made  for  it,  because  the  deliverr 
of  the  particular  consideration  stipulated 
for  in  the  contract,  viz.,  free  transportation, 
became  unlawful  upon  the  passage  of  thai 
statute. 

[For  other  eases,  set  Carriers^  III.,  la  Digest 
Sup.  Ct  1M6.] 

[No.  147.] 

Argued  Debember  17,  1915.     Decided  Jan- 
uary 10,  1916. 

IN  ERROR  to  the  Supreme  Court,  Appel- 
late Division,  First  Department  of  the 
State  of  New  York,  to  review  a  judgment 
which  alBrmed  a  judgment  of  the  Appellate 
Term  of  the  Supreme  0>urt,  affirming  a 
judgment  of  the  City  Ck>urt  of  the  City  of 
New  York,  in  favor  of  plaintiff  in  an  action 
on  a  contract.    Affirmed. 

See  same  case  bdt>w,  in  Appellate  Divi- 
sion, 161  App.  Div.  924,  145  N.  Y.  Supp. 
1125. 

The  facts  are  stated  in  the  opinion. 

Mr.  William  Kann  argued  the  caus^ 
and,  with  Mr.  Charles  C.  Paulding,  filed  a 
brief  for  plaintiff  in  error: 

The  transportation  which  plaintiff  in  er- 

NoTK. — As  to  rights  and  remedies  where 
agreement  by  carriers  to  issue  passes  is  im- 
possible of  performance  because  of  subse- 
mient  legislation— eee  note  to  Louisville  ft 
N.  R.  Co.  V.  Crowe,  49  L.R^(N3.)  848. 

4S« 


584,  586 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbk, 


ror  agreed  to  furnish  defendant  in  error  was 
to  be  used  on  interstate  journeys,  and  was, 
therefore,  subject  to  the  provisions  of  the 
act  of  February  4,  1887,  and  the  amend- 
ments thereof  and  supplements  thereto, 
known  as  the  interstate  commerce  act. 

Southern  P.  Terminal  Co.  t.  Interstate 
Commerce  Commission,  219  U.  S.  408,  55  L. 
ed.  310,  31  Sup.  Ct.  Rep.  219;  Texas  &  N. 
O.  R.  Co.  V.  Sabine  Tram  Co.  227  U.  S. 
Ill,  57  L.  ed.  442,  33  Sup.  Ct.  Rep.  229; 
Railroad  Commission  t.  Texas  &  P.  R.  Co. 
229  U.  S.  336,  57  L.  ed.  1215,  33  Sup.  Ct 
Rep.  837. 

On  and  after  August  28,  1906,  the  date 
upon  which  the  amendment  to  the  interstate 
commerce  act  of  June  29,  1906,  became  ef- 
fective, it  was  unlawful  for  the  plaintiff  in 
cfrror  to  furnish  defendant  in  error  trans- 
portation for  use  on  an  interstate  journey, 
except  upon  receiving  from  him  in  money 
the  regular  fare  provided  in  its  tariffs  in 
payment  for  such  transportation. 

Louisville  k  N.  R.  Co.  v.  Mottley,  219  U. 
S.  467,  55  L.  ed.  297,  34  L.R.A.(N.S.)  671, 
31  Sup.  Ct.  Rep.  265;  Chicago,  I.  &  L.  R. 
Co.  V.  United  States,  219  U.  S.  486,  55  L. 
ed.  305,  31  Sup.  Ct.  Rep.  272. 

The  refusal  of  plaintiff  in  error  to  furnish 
defendant  in  error  transportation  in  Sep- 
tember, 1906,  to  apply  in  part  payment  of 
the  map  in  question,  did  not  constitute  a 
l>reaeh  of  the  agreement  on  its  part,  and  no 
cause  of  action  arose  in  favor  of  defendant 
in  error  because  of  such  refusal. 

People  T.  Globe  Mut.  L.  Ins.  Co.  91  N.  Y. 
174. 

Mr.  Arthnr  W.  Clement  argued  the 
cause,  and,  with  Mr.  Wilson  £.  Tipple,  filed 
a  brief  for  defendant  in  error: 

Admitting  for  argument  (1)  that  the 
transportation  which  plaintiff  in  error 
agreed  to  furnish  was  to  be  used  on  inter- 
state journeys,  (2)  that  after  August  28, 
1906,  it  was  unlawful  for  the  plaintiff  in 
error  to  furnish  further  transportation  un- 
der its  agreement,  and  (3)  that  the  refusal 
of  plaintiff  in  error  to  furnish  defendant  in 
error  transportation  in  September,  1906, 
was,  for  that  reason,  right  and  proper, 
nevertheless  the  defendant  in  error  is  en- 
titled to  recover  the  value  of  the  map  fur- 
nished by  him  pursuant  to  the  agreement, 
less  the  various  amounts  received  by  him  in 
part  payment.  The  action  is  not  brought 
to  recover  damages  for  breach  of  contract, 
or  to  enforce  specific  performance  of  the  con- 
tract. 

Louisville  &  K.  R.  Co.  v.  Crowe,  156  Ky. 
27.  49  L.R.A.(N.S.)  848,  160  S.  W.  759; 
Jones  V.  Judd,  4  N.  Y.  411;  Day  v.  New 
York  C.  R,  Co.  61  N.  Y.  583;  Tracy  v. 
Talmage,  14  N.  Y.  162,  67  Am.  Dec.  132; 
45S 


Irwin  V.  Curie,  171  N.  Y.  409,  68  L.K.A. 
830,  64  N.  E.  161 ;  Akers  v.  Mutual  L.  Int. 
Co.  59  Misc.  273,  112  N.  Y.  254. 

The  legal  residt  of  the  failure  of  the 
plaintiff  in  error  to  furnish  the  transporta- 
tion when  demanded  was  to  convert  the 
claim  from  one  for  transportation  into  one 
for  money. 

New  York  News  Pub.  Co.  v.  National  S. 
S.  Co.  148  N.  Y.  39,  42  N.  E.  514. 

Mr.  Justice  Pitney  delivered  the  opinion 
of  the  court: 

In  the  month  of  November,  1900,  Charles 
P.  Gray,  the  defendant  in  error,  made  an 
agreement  with  the  representatives  of  the 
New  York  Central  k  Hudson  River  Railroad 
Company,  plaintiff  in  error,  to  make  for  the 
company  a  large  map  of  the  Vanderbilt 
Lines  for  the  World's  Fair,  which  was  to 
take  place  at  Buffalo  in  the  following  year. 
The  price  agreed  to  be  paid  him  was  $750, 
of  which  $150  was  to  be  paid  in  cash  and 
the  balance  in  transportation  to  be  used  by 
defendant  in  error  in  traveling  between  New 
York  city  and  his  farm  in  Girard,  Penn- 
sylvania, following  the  lines  of  plaintiff  in 
error  between  New  York  and  Buffalo,  and 
the  line  of  another  and  independent  rail- 
road between  that  point  and  Girard.  The 
map  was  made,  delivered,  and  accepted,  and 
the  cash  pajrment  [685]  of  $150  was  made. 
At  different  times  between  the  making  of  the 
contract  and  the  month  of  September,  1900, 
defendant  in  error  received  from  plaintiff 
in  error  transportation  to  the  value  of  $55.- 
77,  applicable  to  this  contract.  In  Septem- 
ber, 1006,  he  called  upon  the  company  for 
transportation  for  himself  and  wife  froin 
New  York  city  to  Buffalo  and  return,  in* 
tending  to  use  it  for  a  visit  to  the  farm  at 
Girard,  Pennsylvania.  The  demand  was  re- 
fused, upon  the  ground  that,  because  of  the 
provisions  of  the  interstate  commerce  law, 
the  company  could  furnish  no  additional 
transportation  on  account  of  his  services.  A 
second  demand  of  the  same  kind  having 
been  refused,  defendant  in  error  brought  an 
action  against  plaintiff  in  error  in  the  city 
court  of  the  city  of  New  York  for  the  unpaid 
balance  of  the  agreed  price  of  the  map,  to 
which  plaintiff  in  error  set  up  the  defense 
that  by  the  terms  of  the  Hepburn  act  of 
June  29,  1906  [34  Stat,  at  L.  584,  chap. 
3591,  Comp.  SUt.  1913,  §  8563],  it  was  un- 
lawful to  furnish  transportation  for  any 
part  of  an  interstate  journey  In  payment 
for  services  or  for  any  other  oonsideration 
exoept  a  regular  fare  paid  in  money.  The 
trial  court,  holding  that  this  constituted 
no  defense  to  the  action,  directed  a  verdict 
in  favor  of  defendant  in  error  for  an  amount 
made  up  by  taking  the  agreed  price  of  the 
map,  deducting  the  cash  payment  and  the 

SS9  U.  S. 


191A. 


GLEVBLAKD,  a  C.  A  ST.  L.  R.  00.  t.  DFITLBBACH. 


685-.588 


Ainoiint  paid  in  transportation,  and  adding 
intcrcft  to  the  balance.  IQo  particular  ques- 
tion was  or  is  made  as  to  the  quantum  of 
recoYerj.  The  resulting  judgment  was  af- 
firmed by  the  appellate  term  of  the  supreme 
court,  and  its  determination  was  affirmed 
by  the  appellate  division  of  the  supreme 
court  for  the  first  judicial  department. 
Leave  to  appeal  to  the  court  of  appeals  of 
the  state  waa  denied,  and  this  writ  of  error 
was  sued  out. 

Among  the  prohibitions  contained  in  the 
act  of  June  29,  1000,  is  the  following  (34 
Stat,  at  Jm,  687,  chap.  8501,  Comp.  Stat. 
1918,  i  8669):  '^or  shall  any  carrier 
charge  or  demand  or  collect  or  receive  s 
greater  or  less  or  different  compensation 
for  such  transportation  [686}  of  passengers 
or  property,'or  for  any  service  in  connection 
therewith,  between  the  points  named  in  such 
tariffs  than  the  rates,  fares,  and  charges 
which  are  specified  in  the  tariff  filed  and  in 
effect  at  the  time;  nor  shall  any  carrier 
refund  or  remit  in  any  manner  or  by  any 
device  any  portion  of  the  rates,  fares,  and 
charges  so  specified,  nor  extend  to  any  ship- 
per or  person  any  privileges  or  facilities  in 
the  transportation  of  passengers  or  prop- 
erty, except  such  as  are  specified  in  such 
tariffs."  The  reference,  of  course,  is  to 
common  carriers  by  railroad  in  interstate 
commerce;  and  it  is  not  questioned  that 
plaintiff  in  error  is  within  this  category. 
The  act  toolc  effect  August  28,  1906  (34 
Stat,  at  L.  888,  Res.  47). 

In  Louisville  k  N.  R.  Co.  v.  Mottley,  210 
U.  S.  467,  476,  et  seq.,  55  L.  ed.  297,  301, 
84  L.Rji.(N.a)  671,  31  Sup.  Ct.  Rep.  265. 
it  was  held  tliat  the  prohibition  we  have 
quoted  prevented  the  exchange  of  transpor- 
tation for  services,  advertising,  releases, 
property,  or  anything  else  than  money,  and 
that  this  operated  upon  an  agreement  made 
hmg  before  the  passage  of  the  act,  where- 
by the  carrier,  in  consideration  of  a  release 
of  damages  for  injuries  sustained  by  Mottley 
and  his  wife  in  consequence  of  a  collision  of 
trains  upon  the  railroad,  agreed  to  issue 
free  passes  to  them,  renewable  annually  dur- 
ing their  several  lives,  the  result  being  that 
after  the  taking  effect  of  the  Hepburn  act 
specific  performance  of  this  agreement  could 
no  longer  be  required. 

That  the  prohibition  applies  with  respect 
to  transportation  within  the  bounds  of  a 
state  as  part  of  an  interstate  journey  is 
quite  clear.  Southern  P.  Terminal  Co.  v.  In- 
tergtate  Commerce  Commission,  219  U.  S. 
498, 627,  55  L.  ed.  810,  320,  31  Sup.  Ct.  Rep. 
279;  Railroad  Commission  v.  Worthington, 
225  U.  S.  101,  110,  56  L.  ed.  1004,  1008,  32 
Sup.  Ct.  Rep.  653;  Railroad  Commission  v. 
Texas  &  P.  R.  Co.  229  U.  S.  336,  340,  57  L. 
sd.  1215,  1218,  83  Sup.  Ct.  Rep.  837. 
•OL.  ed. 


In  the  present  case,  therefore,  the  rail- 
road company  acted  strictly  in  accordance 
with  the  law  when  it  refused  any  longer 
to  furnish  transportation  to  defendant  in 
error  in  performance  of  the  contract  of 
November,  1900.  [587]  But  from  this  it  hy 
no  means  follows  that  it  could  refuse  to 
make  just  compensation  in  money  for  the 
unpaid  balance  of  the  purchase  price  of  the 
map.  The  judgment  of  the  state  court  pro- 
ceeded upon  the  ground  that  since  the  con- 
tract had  been  fully  performed  by  Gray,  so 
that  the  railroad  company  had  received  the 
entire  benefit  of  it,  and  since  the  delivery  of 
the  particular  consideration  stipulated  for 
had  been  prohibited  by  the  act  of  Congressy 
the  company  thereupon  became  bound  upon 
general  principles  of  justice  to  pay  him  an 
equivalent  in  money  for  the  balance  of  the 
consideration.  In  so  holding  the  court  waa 
simply  administering  the  applicable  prin- 
ciples of  state  law,  and  did  not  run  counter 
to  the  act  of  Congress.  If  the  court  had  ac- 
corded legal  efficacy  to  an  executory  contract 
made  after  the  taking  effect  of  the  Ilepbum 
act,  and  contrary  to  its  provisions,  a  dif- 
ferent question  would  be  presented.  But 
there  is  nothing  in  the  act  to  prevent  or  re- 
lieve a  carrier  from  paying  in  money  for 
something  of  value  which  it  had  long  before 
received  under  a  contract  valid  when  made,, 
even  though  the  contract  provided  for  pay- 
ment in  transportation,  which  the  passage 
of  the  act  rendered  thereafter  illegal.  In. 
the  Mottley  Case,  while  the  right  to  fur- 
thei  specific  performance  of  the  contract 
for  free  passage  was  denied,  the  court  said 
(219  U.  S.  486)  :  "Whether,  without  en- 
forcing the  contract  in  suit,  the  defendants, 
in  error  may,  by  some  form  of  proceeding 
against  the  railroad  company,  recover  or- 
restore  the  rights  they  had  when  the  rail- 
road collision  occurred,  is  a  question  not  be- 
fore us,  and  we  express  no  opinion  on  it.'' 

Judgment  affirmed. 


[588]  CLEVELAND,  CINCINNATI,  CHI- 
CAGO &  ST.  LOUIS  RAILWAY  COM- 
PANY, Plff.  in  Err^ 

V. 

EDWARD  DETTLEBACH, 
(See  S.  C.  Reporter's  ed.  588-595.) 

Carriers  ~  limiting  liability  —  agreed 
valne  —  terminal  carrier  ~  liability 
as  warehoaseman. 

The  liability  of  a  terminal  carrier  in 
an  interstate  shipment  for  a  loss  due  to  its 
negligence  while  the  goods  were  in  its  poa- 

Non. — On  the  validity  of  agreement  to 
restrict    carrier's    liability,    generally — see 

45S 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TnM, 


session  as  warehouseman  at  the  place  of 
destination  must  be  regarded  as  controlled 
by  a  limitation  to  an  agreed  valuation  made 
to  adjust  the  rate  contained  in  the  uniform 
bill  of  lading  issued  l^  the  initial  carrier, 
in  view  of  the  provisions  of  the  Hepburn 
act  of  June  20,  1006  (34  SUt.  at  L.  584, 
chap.  3501,  Comp.  Stat.  1013,  §  8563),  en- 
larging the  definition  of  the  term  "trans- 
portation" so  as  to  include  all  services  ren- 
dered in  connection  therewith,  and  of  a 
provision  of  thA  bill  of  lading  that  "every 
service  to  be  performed  hereunder"  is  sub- 
ject to  all  the  conditions  therein  contained. 
[For  other  cases,  see  Carriers,  II.  b,  7,  b.  In 
Digest  Sup.  Ct  1908.1 

[No.  220.] 

Argued  November  20,  1015.     Decided  Jan- 
uary 10, 1016. 

IN  ERROR  to  the  Court  of  Appeals  for 
the  Eighth  District  of  the  State  of  Ohio 
to  review  a  judgment  which  affirmed  a  judg- 
ment of  the  Court  of  Common  Pleas  of  the 
City  of  Cleveland,  in  that  state,  in  favor  of 
a  shipper  for  the  market  value  of  a  ship- 
ment destroyed  while  in  the  possession  of 
the  terminal  carrier,  notwithstanding  a  limi- 
tation of  liability  in  the  bill  of  lading  to  an 
agreed  value.  Reversed  and  remanded  for 
further  proceedings. 
The  facts  are  stated  in  the  opinion. 

Mr.  Bdward  A.  Foote  argued  the  cause, 
and,  with  Mr.  Frank  L.  Littleton,  filed  a 
brief  for  plaintiff  in  error: 

If  a  stipulation  limiting  the  time  for  fil- 
ing claims  for  loss  or  damage  is  applicable 
to  the  warehouseman's  service  (Armstrong 
V.  Chicago,  M.  k  St.  P.  R.  Co.  53  Minn.  183, 
54  N.  W.  1050;  Hutchinson,  Carr.  3d  ed. 
§  446),  certainly  a  stipulation  as  to  the 
value  of  articles  shipped  under  a  bill  of 
lading  which  provides  that  every  service 
thereunder  shall  be  performed  subject' to  its 
conditions  is  applicable  to  the  service  of 
warehouseman  when  the  contract  specifically 
provides  for  that  service. 


Mr.  O.  O.  Young  argued  the  cause,  and, 
with  Messrs.  Jesse  A.  Fenner  and  Charles 
L.  Stocker,  filed  a  brief  for  defendant  in 
error: 

After  freight  has  reached  the  destination, 
and  the  consignee  has  had  a  reasonable  op- 
portunity to  receive  it,  the  railway  company 
no  longer  stands  in  the  relation  of  carrier 
to  the  goods.  It  becomes  an  ordinary  bailee 
for  hire,  with  the  right  to  charge  storage 
for  whatever  time  the  goods  remain  in  its 
possession.  This  is  a  distinct  service  from 
the  carriage  of  the  goods.  The  basis  of 
liability  of  the  company  is  different,  and  the 
basis  of  compensation  is  also  different  from 
that  controlling  during  the  transit. 

2  Hutchin^n,  Carr.  §  714. 

If  provisions  increasing  the  liability  of 
carriers  while  goods  are  in  transit  are  not 
to  be  applied  after  the  transportation 
(Welch  V.  Concord  R.  Co.  68  K.  H.  206, 
44  Atl.  304),  neither  should  provisions  limit- 
ing liability  during  transit  have  such  ap- 
plication. 

The  rule  is  that  all  such  limitations  are 
to  be  strictly  construed  agaixist  the  carriers. 

4  Elliott,  Contr.  §  3221. 

And  such  exemption  will  not  extend  be- 
yond the  express  language  of  the  contract. 

Amory  Mfg.  Co.  v.  Gulf,  C.  ft  S.  F.  R.  Co. 
80  Tex.  410,  50  Am.  St.  Rep.  65,  37  S.  W. 
856;  Nicholas  v.  New  York  C.  ft  H.  R.  R. 
Co.  80  N.  Y.  370. 

Under  the  general  law,  the  owner  in  this 
case  was  entitled  to  the  value  of  his  goods. 

E.  0.  Standard  Mill.  Co.  v.  White  Line 
Central  Transit  Co.  122  Mo.  258,  26  S.  W. 
704;  Union  P.  R.  Co.  v.  Moyer,  40  Kan. 
184,  10  Am.  St.  Rep.  183,  10  Pac.  630 ;  Rice 
V.  Hart,  118  Mass.  201,  10  Am.  Rep.  433: 
Gleadell  v.  Thomson,  56  N.  Y.  104;  Tar- 
bell  V.  Royal  Exch.  Shipping  Co.  110  N.  Y. 
170,  6  Am.  St  Rep.  350,  17  N.  E.  721: 
Wheeler  v.  Oceanic  Steam  Nav.  Co.  125  N. 
!  Y.  161,  21  Am.  St.  Rep.  720,  26  N.  E.  248 : 
j  Wiegand  v.  Central  R.  Co.  75  Fed.  370,  af- 


notes  to  Deming  v.  Merchants'  Cotton-Press 
ft  Storage  Co.  13  L.RJL.  518;  Missouri  P. 
R  Co.  V.  Ivey,  1  L.R.A.  500;  Hartwell  v. 
Northern  P.  Exp.  Co.  3  L.R.A.  342;  Rich- 
mond ft  D.  R.  Go.  V.  Payne,  6  L.R.A.  840; 
Adams  Exp.  Co.  v.  Harris,  7  L.R.A.  214; 
Duntl^  V.  Boston  ft  M.  R.  Co.  0  L.RJk.. 
452;  Gulf,  C.  ft  S.  F.  R.  Co.  v.  Gatewood, 
10  L.Rji.  410;  Pacific  Exp.  Co.  v.  Foley, 
12  L.R.A.  700;  Ballou  v.  Earle,  14  L.R.A. 
433;  Little  Rock  ft  Ft.  6.  R.  Co.  v.  Cravens, 
18  L.RJL.  527;  Everett  v.  Norfolk  ft  S.  R. 
Go.  1  L.Rji.(N.S.)  085;  New  Jersey  Steam 
Nav.  Co.  T.  Merchants'  Bank,  12  L.  ed.  U. 
S.  465;  and  Chicago,  M.  ft  St.  P.  R.  Co. 
T.  Solan,  42  L.  ed.  U.  S.  688. 

At  to  validity  of  stipulation  limiting  car- 
rier's liability  to  agreed  valuation,  as  af- 
fected by  the  Hepburn  act — see  note  to  Ber- 
454 


nard  v.  Adams  Exp.  Co.  28  L.R.A.(N.S.) 
203. 

On  the  construction  of  the  Hepburn  act, 
generally — see  note  to  Galveston,  H.  ft  8. 
A.  R.  Co.  V.  Wallace,  56  L.  ed.  U.  S.  516. 

As  to  carrier's  power  to  limit  amount  of 
liability  in  case  of  negligence,  generally 
—see  note  to  Ballou  v.  Earle,  14  L.&A.  433. 

On  the  right  of  a  carrier  to  terminate  its 
responsibili^  as  warehouseman — see  note 
to  Branson  v.  Atlantic  Coast  Line  R.  Co. 
0  LJl.A.(N.S.)  577. 

On  the  Carmack  amendment  as  affectin|^ 
state  regulations  as  to  stipulations  limiting 
liability  of  common  carrier  for  loss  or  dam- 
age to  goods — see  notes  to  Adams  Exp.  Co. 
V.  Croninger,  44  L.Rji.(N.S.)  257,  and 
Louisville  ft  N.  R.  Co.  v.  Miller,  50  L.R.A. 
(N.S.)  810. 

SS9  U.  S. 


1U13. 


CLEVELAND,  C.  C.  ft  ST.  L.  R.  00.  t.  DETTLBBACH. 


680,690 


finned  in  25  C.  C.  A.  681,  89  U.  8.  App. 
763,  79  Fed.  991. 

Congress*  has  not  yet  legislated  upon  the 
flobject  of  the  liability  of  a  warehouseman  in 
inch  a  case  as  this;  and  until  it  does,  state 
kws  will  control. 

Missouri,  K.  A  T.  R.  Co.  t.  Harris,  234 
U.  S.  412,  58  L.  ed.  1377,  L.R.A.1916E,  942, 
34  Sup.  Ct.  Rep.  790;  Adams  Exp.  Co.  t. 
Croninger,  226  U.  S.  491,  67  L.  ed.  314, 
44  L.RJi.(N.8.)  267,  33  Sup.  Ct.  Rep.  148. 

Messrs.  C.  C.  Young  and  Jesse  A.  Fenner 
also  filed  a  separate  brief  for  defendant  in 
error: 

Courts  generally  are  reluctant  to  permit 
common  carriers  to  relieve  themselves  by 
contract  from  the  ordinary  consequences  of 
their  own  negligence. 

Bermel  v.  New  York,  N.  H.  A  H.  R.  Co. 
62  App.  Div.  389,  70  N.  Y.  Supp.  804,  af- 
firmed in  172  N.  Y.  639,  66  N.  E.  1113; 
1  Moore,  Carr.  p.  498;  Rosenthal  t.  Weir, 
170  N.  Y.  148,  67  L.R.A.  527,  63  N.  E.  65. 

Gross  negligence  of  the  plaintifiT  in  error 
as  warehouseman  afiTords  another  reason 
why  it  should  not  avail  itself  of  the  stipula- 
tion as  to  the  value  in  order  to  reduce  its 
damages.  It  was  not  in  the  contemplation 
of  the  shipper  when  this  clause  was  inserted 
that  any  representative  of  the  carrier  would 
be  guilty  of  such  conduct.  Failure  to  de- 
liver property  without  lawful  excuse  is  the 
same  as  a  conversion  of  it. 

Vanderbilt  v.  Ocean  S.  S.  Co.  132  C.  C.  A. 
226,  215  Fed.  886. 

And  loss  of  goods  hy  a  wrong  delivery, 
made  negligently  by  the  carrier,  is  a  con- 
version for  which  the  carrier  is  liable  to  ac- 
count for  the  full  value  of  the  goods,  this 
kind  of  loss  not  being  within  the  terms  of 
the  special  contract  fixing  a  conventional 
value  upon  the  goods  at  the  time  of  ship- 
ment, in  consideration  of  the  rate  of  freight 
being  reduced. 

Savannah,  F.  &  W.  R.  Co.  v.  Sloat,  93 
Ga.  803,  20  S.  £.  219. 

And  it  is  well  established  that,  in  a  suit 
for  conversion,  the  wrongdoer  cilnnot  take 
advantage  of  an  agreed  valuation  of  the 
property  in  order  to  limit  the  amount  of  the 
lUbility. 

Georgia  S.  k  F.  R.  Co.  v.  Johnson,  121 
Ga.  231,  48  S.  E.  807.  See  also  Georgia, 
F.  &  A.  R.  Co.  V.  Blish  Mill^Co.  15  Ga. 
App.  142,  82  S.  E.  784;  St.  Louis,  I.  M.  ft 
8.  R.  Co.  V.  Wallace,  —  Tex.  Civ.  App.  — , 
176  S.  W.  764 ;  Shelton  v.  Canadian  North- 
«m  R.  Co.  189  Fed.  163. 

And  where  ths  bill  of  lading  provided  that 
the  carrier  should  not  be  liable  for  loss  by 
fire,  and  there  was  unreasonable  delay  on 
the  part  of  the  connecting  carrier  in  for- 
warding the  goodSy  and  the  same  were  de- 
«•  L.  ed. 


strc^yed  by  fire  while  in  the  transfer  ware- 
house, the  carrier  was  held  liable  for  the 
loss. 

Erie  R.  Co.  v.  Star  ft  C.  MilL  Co.  89 
C.  a  A.  669,  162  Fed.  879. 

[580]  Mr.  Justice  Pitney  delivered  the 
opinion  of  the  court: 

The  court  whose  judgment  we  have  here 
under  review  sustained  a  judgment  rendered 
by  an  inferior  state  court  in  favor  of  Dettle- 
bach  and  against  the  railway  company  for 
the  market  value  of  certain  goods  which, 
having  been  shipped  in  interstate  commerce, 
were  lost  through  the  negligence  of  the  rail- 
way eompany  (the  terminal  carrier)  while 
in  its  possession  as  warehouseman  at  the 
place  of  destination;  overruling  the  conten- 
tion that,  because  of  a  limitation  of  liability 
agreed  upon  by  plaintiflT's  agent  in  consid- 
eration of  a  reduced  rate  of  freight,  and  con- 
tained in  the  bill  of  lading  that  was  issued 
by  the.  initial  carrier,  and  by  force  of  the 
provisions  of  the  interstate  commerce  act 
and  its  amendments,  especially  the  Hepburn 
act  of  1906  [34  Stat  at  L.  584,  chap.  3691, 
Comp.  Stat.  1913,  §  8563],  the  recovery 
ought  to  be  limited  in  accordance  with  the 
stipulation.  This  question,  it  may  be  ob- 
served, as  afiTecting  the  warehouseman's  re- 
sponsibility, was  not  passed  upon  in  Bos- 
ton ft  M.  R.  Co.  V.  Hooker,  233  U.  S.  97. 
109,  58  L.  ed.  868,  874,  L.R.A.1915B,  450, 
Ann.  Cas.  1916D,  593. 

llie  facts  are  as  follows:  Dettlebach,  the 
plaintifiT,  on  September  18,  1911,  shipped 
certain  packages  of  merchandise,  described 
as  household  goods,  over  the  Chicago,  Bur- 
lington, ft  Quincy  Railway  and  connecting 
lines  from  Denver,  Colorado,  consigned  to 
his  wife  at  Cleveland,  Ohio.  They  were  re- 
ceived for  transportation  under  the  terms 
of  a  bill  of  lading,  prepared  in  the  form  ap- 
proved and  recommended  by  the  Interstate 
Commerce  Commission  in  its  report  of  June 
27,  1908  (14  Inters.  Com.  Rep.  346,  352: 
22  Ann.  Rep.  I.  C.  C.  1908,  p.  57),  which 
contained  the  following  provision: 

"It  is  mutually  agreed,  as  to  each  car- 
rier of  all  or  any  of  said  property  over  all 
or  any  portion  of  said  route  to  destination, 
and  as  to  each  party  at  any  time  interested 
in  all  or  any  of  said  property,  that  every 
eervioe  to  he  performed  [600]  hereunder 
shall  be  subject  to  all  the  conditions,  wheth- 
er printed  or  written,  herein  contained  (in- 
cluding conditions  on  back  hereof),  and 
which  are  agreed  to  by  the  shipper  and  ac- 
cepted for  himself  and  his  assigns." 

Among  the  oonditions  printed  upon  the 
back  were  the  following: 

"See.  3.  .  .  .  The  amount  of  any  loss 
or  damage  for  which  any  carrier  is  liable 
shall  be  computed  on  the  basis  of  the  value 

455 


69(M(02 


SUPBEMB  OOURT  OF  THB  UNITED  8XATBS. 


Oct.  Tbbm. 


of  the  property  ...  at  the  place  and 
time  of  shipment  under  this  bill  of  lading, 
unless  a  lower  value  has  been  represented  in 
writing  by  the  shipper  or  has  been  agreed 
upon  or  is  determined  by  the  elassiftcation 
or  tariffs  upon  which  the  rate  is  based,  in 
any  of  which  events  such  lower  value  shall 
be  the  maximum  amount  to  govern  such 
computation,  whether  or  not  such  loss  or 
damage  occurs  from  negligence.    .    .    ." 

"Sec  5.  Property  not  removed  by  the  par- 
ty entitled  to  receive  it  within  forty-eight 
hours  (exclusive  of  legal  holidays)  after  no- 
tice of  its  arrival  has  been  duly  sent  or  giv- 
en may  be  kept  in  car,  depol^  or  place  of 
delivery  of  the  carrier,  or  warehouse,  sub- 
ject to  a  reasonable  charge  for  storage  and 
to  carrier's  responsibility  as  warehouseman 
only.    .    .    ." 

Upon  the  face  of  the  bill  of  lading  was 
the  following  declaration  signed  by  plain- 
tiff's agent:  "I  hereby  declare  the  valuation 
of  the  property  shipped  imder  this  bill  of 
lading  does  not  exceed  $10  per  cwt." 

The  court  found  as  a  fact  that  the  ship- 
per, by  consenting  to  the  limitation,  received 
a  consideration  in  the  shape  of  a  substantial 
reduction  in  the  freight  rate,  and  that  this 
supported  the  agreement  to  limit  the  com- 
pany's liability.  No  question  was  made 
but  that  the  agreement  was  in  accordance 
with  the  filed  tariff. 

The  goods  thus  shipped  were  transported 
by  the  initial  carrier  to  the  junction  be- 
tween its  line  and  that  of  defendant,  [601] 
and  transported  by  the  latter  company  to 
destination,  where  they  arrived  on  Septem- 
ber 27.  They  were  not  called  for  by  the 
consignee,  and  remained  in  defendant's  pos- 
session as  warehouseman  until  November  1, 
1011,  when,  through  its  negligence,  certain 
of  the  goods,  of  the  market  value  of 
$2,792,  were  lost. 

This  action  having  been  brought  to  re- 
cover the  value  of  the  goods  lost,  and  the 
claim  of  Federal  right  already  mentioned 
having  been  made  and  overruled,  a  verdict 
and  judgment  went  against  defendant  for 
the  market  value  of  the  goods,  and  this 
was  affirmed  by  the  court  of  appeals,  eighth 
district,  state  of  Ohio.  The  supreme  court 
of  the  state  declined  to  review  the  judg- 
ment. The  case  comes  here  under  9  237, 
Judicial  Code  [36  Stat,  at  L.  1156,  chap. 
231,  Comp.  Stat.  1913,  §  1214]. 

It  is  no  longer  open  to  question  that  if 
the  loss  had  occurred  in  the  course  of 
transportation  upon  defendant's  line,  the 
limitation  of  liability  agreed  upon  with 
the  initial  carrier,  as  this  was,  for  the  pur- 
pose of  securing  the  lower  of  two  rates  of 
freight,  would  have  been  binding  upon 
plaintiff,  in  vlsiw  of  the  Carmaek  amend- 
45t 


ment.  Adams  Exp.  Co.  v.  Croninger,  22t 
V.  S.  491,  509,  57  L.  ed.  314,  321,  44  UR^ 
(N.S.)  257,  33  Sup.  Ct.  Rep.  l^iS;  Kansas 
City  Southern  R.  Co.  v.  Carl,  227  U.  S.  639» 
648,  654,  57  L.  ed.  683,  686,  689,  33  Sup. 
Ct.  Rep.  391;  Missouri,  K.  A  T.  R.  Co.  v. 
Harriman,  227  U.  S.  657,  668,  57  L.  ed.  690^ 
696,  33  Sup.  Ct.  Rep.  397.  The  question  i* 
whether  the  limitation  of  liability  may  be 
deemed  to  have  spent  its  force  upon  the 
completion  of  the  carrier's  service  as  such, 
or  must  be  held  to  control,  also,  during  the 
ensuing  relation  of  warehouseman.  The 
court  of  appeals,  recognizing  the  question 
as  one  of  difficulty,  reasoned  thus: 

"To  occupy  this  twofold  relation  is  of  ad- 
vantage to  the  company.  As  soon  as  the 
company  can  occupy  it  by  replacing  with  it 
its  former  relation  as  a  common  carrier,  it 
obtains  the  benefit  of  the  rule  of  ordinary 
care  instead  of  the  higher  degree  of  vigi- 
lance which  the  law  charges  upon  carriers 
for  hire.  And  the  company  is  further  ad- 
vantaged by  an  early  shifting  of  its  status 
as  carrier  to  that  of  Wrehouseman, 
through  its  right  in  the  latter  capacity  ta 
[502]  charge  for  the  storage  of  consigned 
goods,  from  the  time  when  its  relation  to 
them  as  carrier  ceases." 

The  court  considered  that  the  declaration 
of   value   stamped  upon  the  bill  of  lading, 
and  signed  by  plaintiff's  agent,  carried  no 
suggestion  that  it  should  inure  to  the  ad- 
vantage of  a  warehouseman  after  becoming 
inert  for  the  relief  of  the  carrier,  and  that 
the  custody  and  protection  of  the  goods  a* 
warehouseman  is  a  distinct    service    from 
that  of  their  transportation,  and  for  it  ad- 
ditional   compensation    may    be    charged; 
proceeding    as    follows:      "The    additional 
compensation   is  not  at  all  diminished  in 
this    case    because    of    the    agreement    of 
limitation     of     liability.      The    reduction 
in  the  rate  of  carriage  which  can  be  used 
as  a  consideration  to  support  that  agree* 
ment  is  no  consideration  for  a  like  limita- 
tion   of    the    liability    as    warehouseman, 
because    there    is    no    reduction    in    ware- 
housing charges  provided  or  stipulated  for 
in  the  transaction.     It  is  not  easy  to  sea 
why  the  consideration — ^not  a  large  one-^ 
which  is  permitted  to  support    the    agree- 
ment to  a  limited  liability  on  the  part  of 
the  carrier  should  do  double  duty  by  serv- 
ing also  to  uphold  a  like  limitation  of  th# 
liability  of  a  warehouseman, — the  latter  not 
agreeing  to  abate  any  part  of  proper  storage 
charges.    To  so  extend  the  contract  of  re- 
lease would  give  an  advantage  to  the  ware- 
houseman, but  none  to  the  owner.    To  allow 
that  consideration  would  be  to  permit  the 
carrier  to  cast  off  his  obligation  as  car- 
rier and  take  up  a  lighter  burden,  while  he 
denies  to  the  shipper  all  right  to  share  in 

SS9  V.  8* 


1915. 


CLEVELAND,  C.  C.  &  ST.  L.  R.  (X).  ▼.  DETTLEBAGH. 


592-995 


the  benefit  fd  the  changed  relation.  The 
rate  which  the  warehouseman  may  charge 
for  storage  remains  unaffected  by  the  re- 
lease of  liability  as  a  carrier.  The  ware- 
houseman could  collect  the  reasonable  value 
of  his  service  whether  the  limitation  of 
the  carrier's  liability  was  or  was  not  stipu- 
lated. He  could  not  be  compelled  to  take 
less  because  of  the  stipulation.  He  could 
collect  no  more  if  the  stipulation  had  not 
been  made." 

We  recognise  the  cogency  of  the  reason- 
ing from  the  [603]  standpoint  of  the  com- 
mon-law responsibility  of  a  railway  company 
as  carrier  and  as  warehouseman.  But  we 
have  to  deal  with  the  effect  of  an  express 
contract,  made  for  the  purpose  of  inter* 
state  transportation,  and  this  must  be  de- 
termined in  the  light  of  the  act  of  Congress 
regulating  the  matter.  The  question  is 
Federal  in  its  nature.  Missouri,  K.  ft  T. 
R.  Co.  V.  Harriman,  227  U.  S.  657,  672,  57 
L.  ed.  690,  698,  33  Sup.  Ct.  Rep.  397;  Atchi- 
son, T.  ft  S.  F.  R.  Co.  V.  Robinson,  233  U. 
8.  173,  180,  58  L.  ed.  901,  905,  34  Sup.  Ct. 
Rep.  556. 

The  provision  that  we  have  quoted  from 
the  contract  is  to  the  effect  that  "every 
service  to  be  performed  thereunder"  is 
subject  to  the  conditions  contained  in  it. 
One  of  these  conditions  is,  in  substance, 
that  where  a  valuation  has  been  agreed 
upon  between  the  shipper  and  the  carrier, 
such 'value  shall  be  the  maximum  amount 
for  which  any  carrier  may  be  held  liable, 
whether  or  not  the  loss  or  damage  occurs 
from  negligence.  And  that  this,  as  a  mere 
matter  of  construction,  applies  to  the  re- 
lation of  warehouseman  as  well  as  to  the 
strict  relation  <^  carrier,  is  manifest  from 
the  further  provision  that  property  not  re- 
moved within  forty-eight  hours  after  notice 
of  arrival  may  be  Icept  "subject  to  a  reason- 
able cuarge  for  storage  and  to  carrier's  re- 
sponsibility as  warehouseman  only."  Thus, 
"any  loss  or  damage  for  wliich  any  carrier 
is  liable"  includes  not  merely  the  responsi- 
bility of  carrier,  strictly  so  called,  but 
"carrier's  responsibility  as  warehouseman" 
also. 

And  this  is  quite  in  line  with  the  letter 
and  policy  of  the  commerce  act,  and  espe- 
cially of  the  amendment  of  June  29,  1906, 
known  as  the  Hepburn  act  (34  Stat,  at  L. 
584,  chap.  3591,  Comp.  Stat.  1913,  §  8563), 
which  enlarged  the  definition  of  the  tern 
"transportation"  (this,  under  the  original 
act,  included  merely  "all  instruments  of 
shipment  or  carriage")  so  as  to  include 
"cars  and  other  v^lcles  and  all  instru- 
mentalities and  faoilitiea  of  shipment  or 
csrriage,  irrespective  of  ownership  or  of 
any  contract^  express  or  implied,  for  the 
M  L.  ed. 


Qse  thereof  ofid  ott  9mvioe9  im  oonneciion 
with  the  receipt,  delivery,  [604]  elevation, 
and  transfer  in  transit,  ventilation,  refrig- 
eration or  icing,  ttoroye,  and  handling  op 
property  transported;  and  it  shaU  be  the 
duty  of  every  carrier  subject  to  the  pro- 
visions of  this  act  to  provide  and  furnish 
9uch  tro/neportation  upon  reasonable  request 
therefor,  and  to  establish  through  routes 
and  just  and  reasonable  rates  applicable 
thereto.  All  charges  made  for  any  eervice 
rendered  or  to  he  rendered  tn  the  trane- 
portation  of  passengers  or  property  ae 
aforeeaid,  or  m  oonfieo^um  therewith,  shall 
be  just  and  reasonable;  and  every  unjust 
and  unreasonable  charge  for  each  eervioee  or 
any  pari  thereof  is  prohibited  and  declared 
to  be  unlawful." 

From  this  and  other  provisions  of  the 
Hepburn  act  it  is  evident  that  Congress 
recognized  that  the  duty  of  carriers  to  the 
public  included  the  performance  of  a 
variety  of  services  that,  according  to  the 
theory  of  the  common  law,  were  separable 
from  the  carrier's  service  as  carrier,  and,  in 
order  to  prevent  overcharges  and  discrimi- 
nations frcmi  being  made  under  the  pretext 
of  performing  such  additional  services,  it 
enacted  that,  so  far  as  interstate  carriers  by 
rail  were  concerned,  the  entire  body  of 
such  services  should  be  included  togetlier 
under  the  single  term  "transportation," 
and  subjected  to  the  provisions  of  the  act 
respecting  reas<mable  rotes  and  the  like. 
The  recommendation  of  the  Interstate 
Commerce  Commission  for  the  adoption  of 
the  uniform  bill  of  lading  was  of  course 
made  in  view  of  this  legislation,  and  while 
not  intended  to  be  and  not  in  law  binding 
upon  the  carriers,  it  is  entitled  to  somu 
weight.  It  recognizes — whether  correctly 
or  not  is  a  question  not  now  presented — 
the  ti^t  of  the  carrier  to  make  a  charge, 
the  amount  of  which  has  not  been  definitely 
fixed  in  advance,  for  storage  as  warehouse- 
man in  addition  to  the  charge  for  trans- 
portation; but  at  the  same  time  it  recog- 
nizes that  a  valuation  lower  than  the  actual 
value  may  be  agreed  upon  between  the  ship- 
per and  the  carrier,  or  determined  by  the 
classification  [606]  or  tariffs  upon  which 
the  rate  is  based;  and  ii  is  a  necessary  corol- 
lary that  what  should  be  a  reasonable  charge 
for  storage  would  be  determined  in  the  light 
of  all  the  circumstances,  including  the 
valuation  placed  upon  the  goods. 

We  conclude  that,  under  the  provisions  of 
the  Hepburn  act  and  the  terms  of  the  bill 
of  lading,  the  valuation  placed  upon  the 
property  here  in  question  must  be  held  to 
apply  to  defendant's  responsibility  as  ware- 
houseman. 

Judgment  reversed,   and  the   eanse   re- 

457 


696 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm» 


manded  for  further  proceedings  not  Incon- 
sistent with  this  opinion. 

Mr.  Justice  Holmes  took  no  part  in  the 
consideration  or  decision  of  this  case. 


SEABOARD  AIR  LINE  RAILWAY,  Plff.  in 

Err., 

V. 

JAMES  T.  HORTON. 
(See  S.  C.  Reporter's  ed.  696-602.) 

Master  and  servant  —  assoniptlon  of 
risk  '  promise  to  repair  —  inuninent 
danger. 

1.  The  danger  of  the  explosion  of  the 
tube  in  a  water  gauge  on  a  locomotiTe  boil- 
er, which  normally  should  withstand  the 
prtesure  to  which  it  is  subjected,  cannot  be 
said,  as  a  matter  of  law,  to  be  so  imminent 
as  to  import  an  assumption  by  an  experi- 
enced engineer  of  the  risk  of  injury  arising 
from  the  absence  of  any  guard  glass  after 
he  had  reported  the  defect  and  was  given 
a  promise  to  repair. 

[For  other  cases,  see  Master  and  Senrant,  II. 

b.  4,   In  Digest  Sup.  Ct.  1908.] 

Master  and  servant  —  oontribntory  neg- 
ligence '  eon  tinning  in  employment 
after  promise  to  repair  defect. 

2.  An  experienced  railway  engineer  in- 
jured through  the  explosion  of  a  tube  in  a 
water  gauge  on  a  •locomotive  boiler  cannot 
be  said  as  a  matter  of  law  to  be  chargeable 
with  contributory  negligence  because  he  con- 
tinued .to  run  his  engine  with  knowledge 
that  there  was  no  guard  glass  for  such  tube 
after  he  had  reported  the  defect  and  was 

?iven  a  promise  to  repair. 
For  other  cases,  see  Master  and  Servant,  II. 

c.  S,  In  Digest  Sup.  Ct.  1908.] 

Proximate  cause  —  personal  injury  — 

explosion  of  water  gauge. 

8.  A  railway  engineer's  conduct  in  us- 
ing a  water  gauge  without  a  guard  glass 
when  he  could  have  cut  the  gauge  off  and 
used  the  gauge  cocks  instead  cannot  be  said 
to  have  l^en  the  proximate  cause  of  an  in- 
jury resultinff  from  the  bursting  of  the 
water  tube,  where  there  is  evidence  to  show 
that  the  gauge  cocks  themselves  are  not  a 
safe  instrumentality  because  of  their  lia- 
bility to  become  clogged. 
[For   other   cases,    see    Proximate    Cause,    in 

Digest  Sup.  Ct  1906.] 

[No.  541.] 


Argued  November  80  and  December  1,  1915. 
Decided  January  10,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  North  Carolina  to  review  a 
judgment  which,  on  a  third  appeal,  affirmed 
a  judgment  of  the  Superior  Court  of  Wake 
County,  in  that  state,  in  favor  of  plaintiif 
in  an  action  brought  under  the  Federal  em- 
ployers' liability  act.    Affirmed. 

See  same  case  below  on  first  appeal,  157 
N.  C.  146,  72  S.  £.  958;  on  second  appeal, 
162  N.  C.  424,  78  S.  E.  494;  on  third  ap- 
peal, 169  N.  C.  108,  85  S.  E.  218. 

The  facts  are  stated  in  the  opinion. 

Mr.  Murray  Allen  argued  the  cause  and 
filed  a  brief  for  plaintiff  in  error: 

The  sufficiency  of  evidence  to  establiah  a 
cause  of  action  or  a  defense  tjider  the  Fed- 
eral employers',  liability  act  is  to  be  de- 
termined according  to  the  rule  of  the  Fed- 
eral courts,  and  not  according  to  the  practice 
of  the  state  courts. 

St.  Louis,  1.  M.  &  S.  R.  Co.  v.  McWhirter, 
220  U.  S.  265,  57  L.  ed.  1179,  38  Sup.  Ct. 
Rep.  858;  Central  Vermont  R.  Co.  v.  White, 
238  U.  S.  507,  59  L.  ed.  1438,  35  Sup.  Ct 
Rep.  865,  9  N.  C.  C.  A.  265. 

It  is  the  duty  of  the  trial  judge  to  with- 
draw a  case  from  the  jury  where  the  evi- 
dence is  undisputed,  or  is  so  conclusive  that 
the  court,  in  the  exercise  of  its  discretion, 
must  set  aside  a  verdict  returned  in  oppo- 
sition to  it. 

Randall  v.  Baltimore  A  O.  R.  Co.  109  U. 
S.  478,  27  L.  ed.  1003,  3  Sup.  Ct  Rep.  322; 
Delaware,  L.  &  W.  R.  Co.  v.  Converse,  139 
U.  S.  469,  35  L.  ed.  213,  11  Sup.  Ct.  Rep. 
569;  Slocum  v.  New  York  L.  Ins.  Co.  228 
U.  S.  364,  57  L.  ed.  879,  33  Sup.  Ct.  Rep. 
523,  Ann.  Cas.  1914D,  1029. 

This  rul6  has  been  applied  by  this  court 
in  an  action  involving  the  defense  of  as- 
sumption of  risk,  where  it  appeared  from 
all  of  the  evidence  that  plaintiff  assumed 
the  risk. 

Butler  V.  Frazee,  211  U.  S.  459,  53  L.  ed, 
281,  29  Sup.  Ct  Rep.  136. 

It  would  be  an  idle  proceeding  to  submit 
the  evidence  to  the  jury  when  they  could 
justly  find  only  one  way. 

North  Pennsylvania  R.  Co.  v.  Commercial 
Nat.  Bank,  123  U.  S.  727,  733,  31  U  ed. 
287,  288,  8  Sup.  Ct.  Rep.  266. 


NoTB. — On  the  rights  of  a  servant  who 
continues  work  upon  the  faith  of  his  mas- 
ter's promise  to  remove  a  specific  cause  of 
danger — see  note  to  Illinois  Steel  Co.  v. 
Mann,  40  L.RJi.  781. 

On  the  effect  of  promise  to  repair,  where 
danger  is  great  and  imminent — «ee  note  to 
Comer  v.  Sfeyer,  20  L.R.A.(N.S.)   597. 

On  the  constitutionalilT,  application,  and 
effect  of  the  Federal  employers'  liabili^  act 
4i^3 


— see  notes  to  Lamphere  v.  Oregon  R.  h 
Nav.  Co.  47  L.RA..(N.S.)  38,  and  Seaboard 
Air  Line  R.  Co.  v.  Horton,  L.R.A.1016O, 
47. 

As  to  master's  duty  to  furnish  suitable 
and  safe  machinery  and  applianoee,  and  lia* 
bility  to  servant  for  their  being  insufficient 
or  out  of  repair — see  note  to  Kichmond  h 
D.  R.  Co.  V.  EUiott,  37  L.  ed.  U.  S.  728. 

%%%  U.  8. 


J915. 


SEABOARD  A.  L.  R.  GO.  t.  HORTON. 


Upon  all  the  evidence  in  tbis  caae,  plain- 
tiff assumed  the  risk  of  injury  from  the 
defective  water  glass  as  matter  of  law. 

Seaboard  Air  Line  H.  Co.  t.  Horton,  233 
U.  S.  492,  68  L,  ed.  1062,  LJUi.l916C,  1, 
34  Sup.  Ct.  Rep.  635,  8  N.  C.  C.  A.  834, 
Ann.  Gas.  1915B,  475;  District  of  Ck>lumbia 
V.  McElligott,  117  U.  S.  621,  29  L.  ed.  946, 
6  Sup.  Ct.  Rep.  884;  Roccia  v.  Black  Dia- 
mond Coal  Min.  Co.  57  C.  C.  A.  567,  121 
Fed.  451;  Indianapolis  ft  St.  L.  R.  Co.  v. 
Watson,  114  Ind.  20,  5  Am.  St.  Rep.  578, 
14  N.  B.  721,  15  K.  £.  824;  Attleton  t. 
Bibb  Mfg.  Co.  5  Ga.  App.  779,  63  S.  E.  918; 
Alteriac  t.  West  Pratt  Coal  Co.  161  Ala. 
435,  49  So.  867;  Erdman  ▼.  Illinois  Steel 
Co.  95  Wis.  6,  60  Am.  St.  Rep.  66,  69  K. 
W.  993;  McAndrews  ▼.  Montana  Union  R. 
Co.  15  Mont.  290,  39  Pac.  85;  Albrechi  t. 
Oiicago  k  N.  W.  R.  Co.  108  Wis.  530,  53 
L.RJL  653,  84  K.  W.  882;  St.  Louis,  A.  k 
T.  R.  Co.  V.  Kelton,  55  Ark.  483,  18  S.  W. 
933;  Western  Coal  k  Min.  Co.  v.  Gamer,  87 
Ark.  190,  22  LJtJL(N.S.)  1183,  112  S.  W. 
392;  Levesque  ▼.  Janscm,  165  Mass.  16, 
42  K.  E.  335;  Musser-Sauntry  Land,  Log- 
ging A  Mfg.  Co.  T.  Brown,  61  C.  G.  A.  207, 
126  Fed.  141;  Holmes,  Common  Law,  p. 
124;  Dowd  T.  Erie  R.  Co.  70  N.  J.  L.  451, 
57  Atl.  248,  16  Am.  Neg.  Rep.  122;  Hough 
V.  Texas  ft  P.  R.  Go.  100  U.  S.  213,  25  L. 
ed.  612. 

When  the  undisputed  evidence  leads  to 
but  one  conclusion,  assumption  of  risk  is  a 
question  of  law. 

26  Cyc.  1479;  Southern  P.  Go.  t.  Seley, 
152  U.  S.  145,  38  L.  ed.  391,  14  Sup.  Ct. 
Rep.  530;  Butler  v.  Frames,  211  U.  S.  469, 
53  L.  ed.  281,  29  Sup.  Ct  Rep.  136;  Kyner 
V.  Portland  Gold  Min.  Co.  106  G.  G.  A.  245, 
184  Fed.  46;  St.  Louis  ft  S.  F.  R.  Go.  t. 
&iowden,  —  Okla.  — ,  149  Pac.  1083. 

Should  it  be  conceded  that  the  fireman 
submitted  to  the  same  i-isk  as  the  engineer, 
Horton,  this  would  neither  show  nor  tend  to 
show  that  the  danger  was  of  such  character 
thai  a  man  of  ordinary  prudence  would  con- 
tinue to  work  in  its  presence  in  reliance  on 
the  promise  to  repair. 

Lindsay  t.  HoUerbaeh  ft  M.  C<mtract  Go. 
29  Ky.  L.  Rep.  68,  4  L.RJ^.(N.S.)  830,  92 
S.  W.  294;  Baltimore  ft  P.  R.  Co.  t.  Jones, 
95  U.  S.  439,  24  L.  ed.  506,  7  Am.  Neg.  Gas. 
840;  Smith  T.  Beaudry,  175  Mass.  286,  50 
N.  E.  596. 

The  promise  to  repair  must  be  the  indu- 
cing motive  for  remaining  in  the  employ- 
ment. 

Lahatt,  Mast  ft  S.  p.  1184. 

The  burden  of  proof  in  actions  under  the 
Federal  employers'  liability  act  is  a  matter 
of  substance  in  which  the  state  courts  can- 
not follow  their  own  practice  and  fix  their 
own  rules. 

Central  Vermont  R.  Co.  t.  Whit^  238  U. 
•0  li.  ed. 


S.  507,  59  L.  ed.  1433,  35  Sup.  Ct  Rep. 
865,  9  N.  G.  G.  A.  265. 

The  existence  of  the  defect  and  the  ap- 
preciation of  the  danger  incident  thereto 
being  established  by  plaintiff's  evidence,  the 
burden  was  on  plaintiff  to  satisfy  the  jury 
by  a  pr^Kmderance  of  evidence  that  he  re- 
ported the  defect  and  was  giyen  a  promise  of 
repair. 

Malm  T.  Thelin,  47  K^.  686,  66  K.  W. 
650. 

The  court  should  haye  instructed  the  jury 
that  plaintiff  was  guilty  of  contributory  neg- 
ligence as  a  matter  of  law. 

Elliott  T.  Chicago,  M.  ft  St  P.  R.  Co. 
150  U.  S.  245,  37  L.  ed.  1068,  14  Sup.  Ct. 
Rep.  85;  Aerkfetz  v.  Humphreys*  145  U.  S. 
418,  36  L.  ed.  758,  12  Sup.  Ct.  Rep.  835; 
Schofield  V.  Chicago,  M.  ft  St  P.  R.  Co.  114 
U.  S.  615,  29  L.  ed.  224,  5  Sup.  Ct.  Rep. 
1125;  Chicago,  R.  I.  ft  P;  R.  Co.  t.  Hous- 
ton, 95  U.  S.  697,  24  L.  ed.  542,  7  Am.  Neg. 
Gas.  345;  McCarthy  t.  Washburn,  42  App. 
Div.  252,  58  N.  Y.  Supp.  1125;  Hannigan  v. 
Smith,  28  App.  Div.  176,  50  N.  T.  Supp. 
845;  3  Labatt,  Mast,  ft  S.  p.  3275. 

There  has  been  no  negligence  on  the  part 
of  the  defendant 

Texas  ft  P.  R.  Go.  t.  Barrett,  166  U.  S. 
617,  41  L.  ed.  1136,  17  Sup.  Ct.  Rep.  707, 
1  Am.  Keg.  Rq>.  745;  Patton  t.  Texas  ft 
P.  R.  Co.  179  U.  S.  658,  45  L.  ed.  361,  21 
Sup.  Ct.  Rep.  275;  Washington  ft  G.  R.  Go. 
V.  McDade,  135  U.  S.  654,  570,  34  L.  ed. 
235,  241,  10  Sup.  Ct.  Rep.  1044. 

Horton's  injury  resulted  from  his  own  dis- 
obedience of  the  defendant's  rules,  and  he 
has  failed  to  establish  any  negligent  omis- 
sion of  duty  on  the  part  of  the  defendant. 

Holland  v.  Seaboard  Air  Line  R.  Co.  143 
N.  G.  435,  55  a  E.  835 ;  Whitson  t.  Wrenn, 
134  N.  G.  86,  46  S.  E.  17 ;  Stewart  t.  Van 
Deventer  Carpet  Co.  138  K.  G.  60,  50  S.  E. 
562. 

In  an  action  for  personal  injuries,  while 
defendant  has  the  burden  of  proof  of  con- 
tributory n^ligence^  plaintiff  must  estab- 
lish grounds  of  defendant's  liability;  and  to 
hold  the  master  responsible,  the  servant 
must  show  by  substantial  proof  that  appli- 
ances furnished  were  defective,  and  must 
show  knowledge  of  the  defect,  or  some  omis- 
sion in  regard  thereto. 

Looney  t.  Metropolitan  R.  Go.  200  U.  S. 
480,  50  L.  ed.  564,  26  Sup.  Gt  Rep.  803, 
19  Am.  N^.  Rep.  627. 

The  master  must  be  fixed  with  notice  of 
a  defect  in  his  appliances  to  create  liability 
in  favor  of  an  employee  who,  with  knowl- 
edge of  the  defect,  has  been  injured  thereby. 

Hudson  V.  Charleston,  G.  ft  G.  R.  Co.  104 
K.  G.  499,  10  S.  E.  669;  Blevins  t.  Erwin 
Cotton  Mills,  150  K.  G.  493,  64  S.  B.  428; 
LabaU,  Mast  ft  8.  §§  119  et  seq. 


696,697 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebic, 


Evidence  which  Bhows  that  the  aorvant 
had  knowledge  of  the  defect  and  appreciated 
the  risk,  and  that  this  appreciation  was 
attended  hy  circumstances  which  make  a 
proper  case  for  the  application  of  the  max- 
im, "Volenti  non  fit  injuria/'  establishes 
that  the  master  has  been  guilty  of  no  breach 
of  duty  in  exposing  the  servant  to  the  risk. 
The  application  of  the  maxim,  in  a  proper 
case,  makes  necessary  a  negative  response 
to  the  issue  of  negligence. 

Thomas  ▼.  Quartermaine,  L.  R.  18  Q.  B. 
Div.  695,  66  L.  J.  Q.  B.  N.  S.  340,  67  L.  T. 
N.  S.  637,  35  Wee^Rep.  655,  61  J.  P.  616; 
Smith  ▼.  Baker  [1891]  A.  C.  326,  60  L.  J. 
Q.  B.  N.  S.  683,  66  L.  T.  N.  S.  467,  40  Week. 
Rep.  392,  66  J.  P.  660;  Katalla  Go.  ▼. 
Rones,  108  C.  C.  A.  132,  186  Fed.  30;  Wor- 
den  T.  Gore-Meenan  Co.  88  Conn.  642,  78 
Atl.  422;  St.  Louis  Cordage  Co.  t.  Miller, 
63  L.RJ^.  661,  61  C.  C.  A.  477,  126  Fed. 
496,  16  Am.  N^.  Rep.  476;  Thomp.  Keg. 
§  412;  Membery  ▼.  Great  Western  R.  Co. 
L.  R.  14  App.  Cas.  187,  68  U  J.  Q.  B.  N.  S. 
663,  61  L.  T.  N.  6.  666,  38  Week.  Rep.  145, 
54  J.  P.  244. 

Plaintiff's  use  of  a  defective  glass,  when 
there  was  available  a  safe  way  to  operate 
the  engine,  was  the  proximate  cause  of  his 
injury. 

White,  Personal  Injuries  on  Railroads, 
§  685;  Covington  v.  Smith  Furniture  Co. 
138  N.  C.  374,  60  S.  E.  761;  Dermid  v. 
Southern  R.  Co.  148  N.  C.  183,  61  S.  E. 
667;  H.  D.  Williams  Cooperage  Co.  v. 
Headrick,  86  C.  C.  A.  648,  169  Fed.  683. 

The  master  discharges  his  duty  by  exer- 
cising due  care  in  respect  to  providing  a 
reasonably  safe  place  to  work. 

Hough  V.  Texas  k  P.  R.  Co.  100  U.  S. 
218,  26  L.  ed.  616;  Washington  k  G.  R. 
Co.  V.  McDade,  136  U.  S.  570,  34  L.  ed. 
241,  10  Sup.  Ct.  Rep.  1044;  Choctaw,  0.  k 
G.  R.  Co.  V.  McDade,  191  U.  S.  64,  48 
L.  ed.  96,  24  Sup.  Ct.  Rep.  24,  16  Am.  Keg. 
Rep.  230;  Gardner  v.  Michigan  C.  R.  Co. 
160  U.  a  369,  37  L.  ed.  1110,  14  Sup.  Ct. 
Rep.  140;  Baltimore  k  0.  R.  Co.  v.  Baugh, 
149  U.  S.  368,  37  U  ed.  772,  18  Sup.  Ct. 
Rep.  914;  Powell  v.  American  Sheet  k  Tin 
Plate  Co.  216  Pa.  618,  66  Atl.  1113;  Kyner 
V.  Portland  Gold  Min.  Co.  106  C.  C.  A.  246, 
184  Fed.  43. 

An  erroneous  instruction  on  the  issue  of 
damages,  in  an  action  based  upon  the  Fed- 
eral employers'  liability  act,  is  sufficient  to 
sustain  a  reversal. 

Korfolk  k  W.  R.  Co.  v.  Holbrook,  286  U. 
8.  626,  69  L.  ed.  392,  36  Sup.  Ct.  Rep.  143, 
7  K.  C.  C.  A.  814 ;  Kansas  City  Southern  R. 
Co.  V.  Leslie,  238  U.  8.  699,  69  L.  ed.  1478, 
86  Sup.  Ct  Rep.  844. 

A  servant  must  either  aver  his  want  of 
knowledge  of  the  defect  which  caused  the 
4«0 


injury,  or  that,  having  such  knowledge,  he 
informed  the  master  and  continued  in  the 
employment  upon  a  promise,  express  or  im- 
plied, to  remedy  the  defect. 

Chicago  k  0.  Coal  k  Car  Co.  v.  Korman, 
49  Ohio  St.  698,  32  K.  E.  867;  Griffiths  v. 
London  ft  St  K.  Docks  Co.  L.  R.  13  Q.  B. 
Div.  269,  63  L.  J.  Q.  B.  K.  S.  604,  61  L.  T. 
K.  S.  633,  33  Week.  Rep.  36,  49  J.  P.  100. 

Evidence  tending  to  show  that  defective 
machinery  was  used  under  a  promise  by  the 
master  to  remove  the  defect  was  inadmis- 
sible where  such  promise  had  not  been  plead- 
ed. 

Malm  T.  Thelin,  47  Keb.  686,  66  K.  W. 
660. 

Mr.  Clyde  A.  Douglass  argued  the 
cause,  and,  with  Mr.  William  C.  Douglass, 
filed  a  brief  for  defendant  in  error. 

Mr.  Justice  Pitney  delivered  the  opinion 
of  the  court : 

This  action,  based  upon  the  Federal  em- 
ployers' liability  act  (36  Stat  at  L.  65, 
chap.  149,  36  Stat,  at  L.  291,  chap.  143, 
Comp.  Stat  1913,  S  8662),  was  under  con- 
sideration on  a  former  occasion,  when  a 
judgment  in  favor  of  defendant  in  error  was 
reversed  and  the  cause  remanded  for  further 
proceedings.  233  U.  S.  492,  68  L.  ed.  1062, 
L.R.A.1916C,  1,  34  Sup.  Ct.  Rep.  635,  Ann. 
Cas.  1915B,  476,  8  K.  C.  C.  A.  834.  There 
was  a  new  trial,  end  the  resulting  judg- 
ment in  favor  [697]  of  Horton,  the  em- 
ployee, having  been  affirmed  by  the  supreme 
court  of  Korth  Carolina  (169  K.  C.  108,  86 
S.  E.  218),  the  case  is  brought  here  again, 
with  numerous  assignments  of  error,  of 
which,  however,  only  a  few  need  be  noticed. 

Plaintiff  was  injured  while  in  the  employ 
of  defendant  in  interstate  commerce.  He 
was  an  experienced  locomotive  engineer, 
and  was  so  employed  when  injured.  His 
engine  was  equipped  with  a  Buckner  water 
gauge,  a  device  attached  to  the  boiler  head 
for  the  purpose  of  showing  the  level  of  the 
water  in  the  boiler,  and  consisting  of  a 
brass  frame  inclosing  a  glass  tube  12  or  14 
inches  long,  and  i  inch  in  diameter,  the 
glass  being  about  |  inch  thick.  The  tube 
was  placed  vertically,  and  was  connected 
with  the  boiler  above  and  below,  so  tiiat  it 
received  water  and  steam  direct  from  the 
boiler  and  under  a  pressure  of  200  pounds. 
In  order  to  protect  the  engineer  and  fireman 
from  injury  in  ease  of  the  bursting  of  the 
ttibe,  a  thick  piece  of  plain  glass,  known 
as  a  guard  glass,  should  have  been  in  posi- 
tion in  slotA  arranged  for  the  purpose  in 
front  of  the  water  tube.  Plaintiff  took 
charge  of  the  engine  in  question  on  July 
27  or  28,  1910,  and  noticed  at  that  time  that 
the  guard  glass  was  missing.    He  reported 

SS9  U.  8. 


1015. 


SBABOARD  A.  L.  R.  CO.  t.  HORTON. 


697-600 


Uiii  to  a  roundlunue  f oreiiuuii«  to  whom  luch 
feport  should  properlj  bt  made,  and  asked 
lor  a  now  guard  glass.  The  foreman  replied 
that  ha  had  none  in  stock,  but  would  send 
for  ono^  and  that  plaintiff  in  the  meantime 
should  run  the  engine  without  one.  He  did 
so  for  about  a  week,  and  until  August  4tli, 
when  the  water  tubs  exploded,  and  the  fly- 
ing glass  struck  him  in  the  face,  causing 
the  injuriea  up<m  which  the  action  was 
grounded. 

The  pi'iucipal  insistence  of  defendant 
(plaintiff  in  error)  is  that,  upon  all  the 
eridence,  plaintiff,  as  a  matter  of  law,  as- 
sumed the  risk  of  injurj  arising  fr<«n  the 
absence  of  the  guard  glass.  The  rule 
applicable  to  the  situation  was  expressed 
bj  this  court  upon  the  former  reriew  of  the 
eas^  in  the  following  terms  (233  U.  8. 
M4) :  ''Whai  the  [698]  employee  does  know 
of  the  defect  [arising  from  the  employer's 
negligence],  and  appreciates  the  risk  that 
ia  attributable  to  it,  then  if  he  continues 
in  the  employment,  without  objection,  or 
without  obtaining  from  the  employer  or  his 
representative  an  assurance  that  the  de- 
feet  will  be  remedied,  the  employee  assumes 
the  risk,  even  though  it  arise  out  of  the 
master's  breach  of  duty.  If,  however,  there 
be  a  promise  of  reparation,  then  during 
such  time  as  may  be  reasonably  required 
for  its  performance,  or  until  the  particular 
time  specified  for  its  performance,  the  em- 
ployee, relying  upon  the  promise,  does  not 
assume  the  risk  unless  at  least  the  danger 
be  so  imminent  that  no  ordinarily  prudent 
man  under  the  circumstances  would  rely 
upon  such  promise." 

By  motions  for  nonsuit  and  for  dismissal 
of  t^e  action,  and  by  various  requests  for 
instructions  to  the  jury,  all  of  which  were 
refused,  defendant  raised  tlie  point  that  al- 
though plaintiff  reported  the  absence  of  the 
guard  glass  to  defendant's  foreman  and 
received  a  promise  of  repair,  yet  the  danger 
waa  so  imminent  that  no  ordinarily  pru- 
dent man  under  the  circumstances  would 
have  relied  upon  the  promise,  and  hence 
plaintiff,  as  matter  of  law,  assumed  the  risk 
•f  injury. 

But  we  do  not  think  it  can  be  said  as  mat- 
ter of  law  that  the  danger  was  so  im- 
minent that  no  ordinarily  prudent  man 
under  the  circumstances  would  continue  in 
the  employment  in  reliance  upon  the 
promise.  It  was  not  the  function  of 
the  guard  glass  to  prevent  the  bursting  of 
the  water  tube,  but  obly  to  limit  the  effect 
of  such  an  explosion  in  case  it  happened  to 
•ecur.  That  there  was  a  constant  danger 
that  the  tube  might  explode  was  abundant- 
ly proved,  and  was  admitted  by  plaintiff. 
But  the  tube  waa  designed  to  withstand  the 
pressure  of  200  pounds,  and  ordinarily  did 
•0  lu  ed. 


so.  It  was  its  proper  function  to  do  so. 
One  witness  said:  "They  may  last  a  day,  a 
week,  a  month,  or  a  year,  or  it  may  last 
an  hour,  or  shorter."  The  jury  [699] 
might  reasonably  believe  that  such  a  water 
glass  would  probably  not  explode  in  tiie  or- 
.dinary  use  of  it  unless  it  was  imperfect  or 
defective  in  some  respect  other  than  the  ab- 
sence of  the  guard  glass,  and  that,  since 
there  was  no  evidence  of  this,  Horton  was 
justified  in  assuming  that  the  danger  of  an 
explosion  was  not  inunediately  threatening. 

There  is  a  substantial  difference  in  the 
attitude  of  the  employee  towards  the  known 
dangers  arising  out  of  defects  attributable 
to  the  employer's  negligence,  depending 
upon  whether  there  has  or  has  not  been  a 
promise  of  repair.  It  was  clearly  expressed 
is  a  well-reasoned  opinion  by  the  supreme 
court  of  New  Jersey  (Dowd  v.  Erie  R.  Co. 
70  N.  J.  L.  451,  455,  57  AU.  248,  16  Am. 
Keg.  Rep.  122)  thus:  "To  the  rule  that  the 
servant  assumes  the  obvioiu  risks  of 
tlie  employment,  an  exception  is  made  where 
the  master  has  promised  to  amend  the  defect 
or  to  make  the  place  safe,  and  the  servant 
continues  the  work  in  reliance  upon  the 
promise.  .  •  .  The  master  is  exempted 
from  liability  in  the  case  of  obvious  risks 
for  the  reason  that  the  servant,  by  con- 
tinuing in  the  employment  with  knowledge 
of  the  danger,  evinces  a  willingness  to  in- 
cur the  risk,  and  up<m  the  principle 
Volenti  non  fit  injuria.'  But  when  the 
servant  shows  that  he  relied  upon  a  promise 
made  to  him  to  remedy  the  defect,  he  n^a- 
tives  the  inference  of  willingness  to  incur 
the  risk." 

To  relieve  the  employer  from  responsi- 
bility for  injuries  that  may  befall  the  em- 
ployee while  remaining  at  his  work  in  re- 
liance upon  a  promise  of  reparation,  there 
must  be  something  more  than  knowledge  by 
the  employee  that  danger  confronts  him,  or 
that  it  ia  constant.  The  danger  must  be 
imminent, — immediately  threatening, — so  as 
to  render  it  clearly  imprudent  for  him 
to  confront  it,  even  in  the  line  of  duty, 
pending  the  promise.  The  danger  of  the 
explosion  of  the  water  glass,  which  normal- 
ly should  withstand  the  pressure  to  which 
it  was  subjected,.  [600]  but  which  might 
probably  explode  at  some  time  near  or  re- 
mote, cannot  be  said,  as  matter  of  law,  to 
have  been  so  imminent  as  to  import  an 
assumption  of  the  risk  by  Horton  notwith- 
standing the  employer's  promise  to  replace 
the  guard  glass.  It  .would  require  a  much 
plainer  case  than  this  to  justify  taking  the 
question  from  the  jury. 

It  is  insisted  that  the  trial  court  erred 
in  refusing  to  instruct  the  jury  tliat  plain- 
tiff was  guilty  of  contributory  negligence 
as  a  matter  of  law.     This,  also,  ia  based 

4f- 


600-6n                    8UPKZMB  COURT  OF  THE  UNITED  STATES.              Oct.  Tbbk, 

upon  th«  gnnind  of  the  obrioni  mnd  immi-  placed  upon  the  ground  of  •sanmption  of 
nent  nature  of  the  duiger  to  plaintiff  ari*-  risk  or  of  contributory  negligence.  8c« 
ing  out  of  the  abience  of  the  guard  glau.  Hough  v.  Texas  k  P.  R.  Co.  100  U.  8.  SI3, 
But  the  reasonable  reliance  of  the  employee  224,  22S,  25  L.  ed.  612,  617,  SIS ;  Dowd  t. 
upon  the  employer's  promise  to  repair  the  Erie  R.  Co.  70  N.  J.  L.  451,  456,  57  AtL 
defect  ia  aa  good  an  answer  to  the  charge  !48,  IS  Am.  Neg.  Rep.  122;  Clarke  t. 
of  contributoiy  negligence  as  to  the  conten-  Holmes,  T  Hurlit.  t  N.  037,  045,  31  L.  J. 
tlon  that  the  risk  was  assumed.  The  cm-  Eich.  N.  S.  358,  S  Jur.  N.  B.  092,  10  Week, 
ployer's  direction  or  request  that  the  Rep,  406.  The  distinction,  which  was  of 
employee  remain  at  work  pending  per-  little  consequence  when  asiumption  of  risk 
lormanee  of  the  promlie  has  a  ma-  and  contributory  negligence  led  to  the  sune 
terial  bearing  upon  the  employee's  duty  result,  becomes  important  in  aotions  found- 
in  the  meantime,  and  therefore  upon  the  ed  upon  the  Federal  employers'  liability 
question  of  bii  negligence,  which  involves  act,  which  in  ordinary  cases  recognises  as- 
the  notion  of  tome  fauH  or  breach  of  iaty  iumpticm  of  risk  aa  a  complete  bar  to  the 
cm  his  part.  Beaboard  Air  Line  R.  Co.  v.  action,  while  contributory  negligence  mere- 
Horton,  233  U.  8.  402,  S03,  58  L.  ed.  1062,  ly  mitigates  the  damages,  as  was  pointed 
1060,  L.R.A.1010C,  1,  3i  Sup.  Ct.  Eep.  036,  out  when  the  case  was  here  befors.  6e*- 
Ann.  Cas.  1015B,  476,  8  N.  C.  C.  A.  S34.  board  Atr  Line  B.  Co.  t.  Horton,  supra.  The 
Hence,  the  question  of  Horton's  contribu-  disputable  point  above  referred  to  was  not 
tory  negligence  was  at  best  a  matter  for  then  presented  for  decision.  Nor  ia  it  now 
the  jury  to  determine.  presented,  for  upon  the  last  trial  the  court. 
All  the  disputable  questions  of  fact  were  in  the  instruction  given  to  the  jury,  put 
submitted  to  the  jury  under  instructions  the  plaintiff  (upon  the  bypotheeis  of  his 
that  were  suffleiently  favorable  to  defend-  persisting  [BOS]  in  the  face  of  an  imminent 
ant.  The  jury  were  told,  in  substance,  that  danger,  where  a  man  of  ordinary  prudence 
if  tli«7  found  the  absence  of  the  guard  glass  would  not}  in  the  position  of  assuming  the 
was  known  to  plsintiff,  and  be  reported  the  risk — a  position  more  favorable  to  defend- 
defect  and  was  given  a  promise  to  repair,  snt  (plaintiff  in  error]  than  that  of  con- 
and  if  he  knew  and  appreciated  the  danger  tributary  negligence. 

incident    thereto,    and    the  danger  wsa  so  It  is  further  argued    that   Horton's   own 

obvious  that  a  man  of    ordinary    prudence  conduct  in  using  the  Buckner  gauge  with- 

would  not  have  continued  to  use  the  water  oiit  the  guard   glass,  when  he  could   have 

gauge  without  the  guard  glass,    then    the  cut  this  off  and  used  the  gauge  cocks,  said 

plaintiff  assumed  the  risk.     This  was  unduly  to  be  an  entirely  safe  instrumentality,  was 

favorable  to  defendant,  in  that  it  omitted  to  unquestionably  the  proximate  cause  of  liis 

state   that    In    order    to    qualify    plaintiff's  injury.     But   there   was   evidence   to   show 

right  to  rely   upon  the   1601]    promise  of  that  the  gauge  cocks  themselves  were  not  a 

reparation  the  danger  must  be  imnjlnent  as  safe  instrumenUlity,  because  of  their   lU- 

well  as  obvious.    But,  besides  this,  we  deem  bllity   to   become   clogged.      Hence,    at    the 

it  proper  to  say.  In  view  of  tiie  fact  that  the  utmost,  there  was  here  no    more    than    a 

instruction  referred  to  seems  to  have  been  quesUon  for  the  jury, 

intended   to   conform   to   our    opinion   de-  o^ter    poinU    are    raised,  but  thoy  ai« 

Uvered  upon  the  fon«r  «r,t  of  error    that  .^   u^bstanUal,    and    require   nonpar- 

we  did  not  then  Intend  to  decide  whether  an  J             ^^^.^                       ^                  *"* 

employee,  remammg    at    work    in    reliance  j^^          ^  ^^^^ 

upon  the  employer's  promise  to  repair  a  de-  ** 
fective    appliance,     but    where    the   danger 

known    is  so  Imminent  that   no  ordinarily  .^— ^_ 
prudent  man  under  the  circumstances  would 

remain     at     work    in    reliance    upon    the  NARCI80  BASSO,  Appt, 

promise,  should  be  held  to  assume  the  risk,  v. 

or,   rather,   to   be  guilty    of   contributory  UNITED  STATES, 
n^ligencs.    What  we  said  was  that  the  em- 

pIoye^  to  ths  ^tuation  described   "doe.  not  Reporter's  ed.  60!t-e08.) 

assume  the  risk  uhIch,  at  leosl,  the  danger  '                       *^ 
be  M  imminent,"  etc.     While  most  court* 

agree  that  an  employee  cannot,  without  im-  CInlma  —  against  tbe  Vnlied  StatM  — 

pairing  bis  right  to  recover  from   the   em:  JnrladlcUon  —  torts. 

li«.«.  »».in  .*  -™i.  It.  th.  »»«.«  n*  .  ^^'  cowt  of  claims  has  no  inrlsdlctioa 

ployer.  remain  at  worlt  in  the  presence  of  a  ^^^^  ^^^  .j^^^^^^  ^^  ^,  ^^^  J   jgg^   („ 

known  danger  so  imminent  that  no  reason-  g^^^    ^^  j^    j^g    ^^^        jBjj^  ^,  ^  cauM  rf 

ably  prudent  man  would  sonfront  it,  even  action    against    the    United    States    bnasl 

whers  the  emplt^er  has   promised   repara-  i  wholly  upon  the  tortious  acts  of  iU  agents 
tlon,  th^  differ  as  to  whether  this  ia  to  be '  by  whieh  the  claimant  allegaa  he  waa  d^ 

««#  »t  u.  s. 


1015. 


BASSO  ▼.  UNITED  STATES. 


694-606 


nrived  of  righto  under  the  Federal  Contti- 
tution. 

[For  other  cases,  see  CUIns,  126-181,  in  Dl- 
feti   Sap.  Ct.  1908.] 

[No.  142.] 

Argned  January  6,  1016.    Decided  January 

17,  1916. 

APPEAL  from  the  Court  of  Claims  to 
review  a  judgment  dismissing,  for  want 
of  jurisdiction,  a  suit  against  the  United 
States,  based  upon  the  tortious  aeto  of  ito 
agents.    Affirmed. 
See  same  case  below,  49  Ct.  CI.  700. 
The  facto  are  stoted  in  the  opinion. 

Mr.  Henry  M.  Ward  argued  Hie  cause 
and  iUed  a  brief  for  appellant: 

The  jurisdiction  of  the  court  of  claims 
orer  a  claim  ez  delicto,  founded  upon  the 
Constitution  of  the  United  Stotes,  is  sup- 
ported by  the  recent  decisions  of  this  court. 

Dooley  t.  United  Stotes,  182  U.  S.  222, 
45  L.  ed.  1074,  21  Sup.  Ct.  Rep.  762; 
Unitdi  Stotes  ▼.  Lynah,  188  U.  S.  445,  47  L. 
ed.  539,  23  Sup.  Ct.  Bep.  849;  United 
Stotes  T.  Welch,  217  U.  S.  338,  54  L.  ed. 
787,  28  L.RJ^.(N.S.)  385,  30  Sup.  Ct.  Rep. 
527,  10  Ann.  Cas.  680;  United  Stotes  v. 
Orixzard,  219  U.  S.  180,  55  L.  ed.  165,  31 
L.RJk.(N.S.)  1135,  31  Sup.  Ct  Rep.  162; 
United  Stotes  ▼.  Emery,'  B.  T.  Realty  Co. 
237  U.  S.  28,  59  L.  ed.  825,  35  Sup.  Ct. 
Rep.  499;  Christie-Street  Commission  Co. 
▼.  United  Stotes,  69  C.  C.  A.  464,  136  Fed. 
826;  United  Stotes  ▼.  Finch,  119  C.  C.  A. 
433,  201  Fed.  05,  Ann.  Cas.  1916A,  319; 
United  Stotes  ▼.  Hyams,  76  C.  C.  A.  523, 
146  Fed.  15. 

Aasistont  Attorney  General  Thompson 
argued  the  cause  and  filed  a  brief  for  ap- 
pellee: 

Appellant's  allied  claim  Is  predicated 
upon  an  action  sounding  in  tort,  and  the* 
court  of  claims  has,  therefore,  no  juris- 
diction of  the  same. 

Schillinger  t.  United  Stotes,  155  U.  S. 
163-168,  89  L.  ed.  108-110,  15  Sup.  Ct 
Rep.  85. 

Mr.  Justice  McKenna  deliyered  the  opin- 
ion of  the  court: 

Appellant  is  a  Spanish  subject  who  re- 
sided, at  the  time  his  alleged  cause  of  ac- 
tion aoemcd  and  at  the  time  his  petition 
was  filed  in  the  court  of  claims,  in  the  is- 
land of  Porto  Rico. 

Porto  Rico  was  ceded  to  the  United  Stotes 
by  the  Treaty  of  Paris*  ratifications  of 
uti^  were  exchanged  April  11,  1809  [30 
Stot  at  L.  1754].  The  island  was  ooen- 
pled  by  the  miUtary  forces  of  the  United 
States  prior  to  January  !»  1890,  and  Feb- 
•0  li.  ed. 


ruary  1,  1899,  the  President  of  the  United 
Statesy  by  order,  promulgated  the  "Amend- 
ed Customs  Tariff  and  Regulations  for 
Porto  in  Porto  Rico,"  which  fixed  and  pro- 
vided for  the  collection  of  duties  upon  all 
articles  imported  into  [605]  Porto  Rico. 
And  duties  were  collected  thereaf tor  in  ac- 
cordance with  such  tariff  and  the  amend- 
mento  thereto  made  from  time  to  time  until 
May  1,  1900. 

Certain  officers  of  the  Army  were  desig- 
nated to  act  and  did  act  as  collectors  of 
customs  under  such  tariff  at  the  several 
porto  of  entry  in  Porto  Rico,  and  enforced 
such  tariff  upon  merchandise  brought  into 
Porto  Rico  from  the  United  Stotes  and  from 
foreign  countriea 

Under  authority  of  general  order  No.  88. 
the  general  commanding  in  the  island  es- 
toblished  a  provisional  court  of  the  United 
Stotes  for  the  department  of  Porto  Rico. 

On  or  about 'July  13,  1899,  by  informa- 
tion filed  by  the  prosecuting  officer  of  the 
provisional  court,  appellant  was  charged 
before  that  court  with  the  crime  of  having 
imported  from  the  United  Stotes  into  Porto 
Rico  certoin  merchandise  without  having 
made  entry  of  the  same  in  the  customhouse, 
and  without  having  paid  duty  thereon.  He 
was  arraigned,  pleaded  not  guilty,  and  the 
case  was  set  for  trial. 

At  the  trial  he  entored  a  plea  that 
§§  2865  and  3082  of  the  Revised  Stotutefi  of 
the  United  Stotos  (Comp.  Stot  1013, 
§§  5548,  5785)  were  without  force  or  ef- 
fect in  Porto  Rico,  that  the  latter  was  part 
of  the  United  Stotes,  and  that  there  was 
no  warrant  in  law  for  imposing  duties  on 
goods  brought  from  the  United  Stotes  into 
the  island. 

The  defenses  were  not  allowed,  he  was 
found  guilty,  sentenced  to  imprisonment, 
and  was  imprisoned  for  twenty-seven  days. 
He  alleged  the  foregoing  facto  in  his  peti- 
tion, and  that  he  suffered  damages  thereby 
in  the  sum  of  $10,000,  $7,500  general  and 
$2,500  special  damages.  That  he  is  advised 
by  counsel  that  the  act  for  which  he  was 
aocused  and  condemned  did  not  then  con- 
stituto  a  crime;  that  the  said  sections  of 
the  Revised  Stotutes  of  the  United  Stotes 
under  which  the  provisional  court  claimed 
authority  to  act  were  not  in  force  in  Porto 
Rico,  and  the  court  was  [606]  wholly  with- 
out jurisdiction  in  the  premises,  and  ito  sen- 
tence was  null  and  void,  and  that,  by  rea- 
son of  such  accusation,  trial,  conviction, 
sentence,  and  imprisonment,  he  was  de- 
prived of  his  liborty  without  due  process 
of  law  in  violation  of  the  Constitution  of 
the  United  States. 

Judgment  was   prayed  lor  the  sum  of 
$10,000. 
The  United  Stotes  filed  a  general  traverse 


606-e08 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbbm, 


of  the  petition,  but  subsequently  moved  to 
dismiss  upon  the  ground  that  the  court  had 
no  jurisdiction  to  consider  it,  it  presenting 
"an  action  for  damages  in  a  case  sound- 
ing in  tort." 

The  motion  was  sustained  and  judgment 
entered  dismissing  the  petition  for  want  of 
jurisdiction,    lliis  appeal  was  then  taken. 

Appellant  concedes  that  "the  cause  of 
action  not  merely  'sounds  in  tort,'  but  is 
based  wholly  upon  the  tortious  actions  of 
the  agents  of  thfe  United  States."  He,  how- 
ever, contends  that  the  court  of  claims  has 
jurisdiction  under  the  Tucker  act  over 
claims  ex  delicto  founded  upon  the  Con- 
stitution of  the  United  States.  And  this, 
he  further  con  tends,  is  supported  by  the 
recent  decisions  of  tliis  court,  and  relies  es- 
pecially upon  Dooley  v.  United  States,  182 
U.  S.  222,  45  L.  ed.  1074,  21  Sup.  Ct.  Rep. 
762. 

But  that  case  did  not  overrule  Schillinger 
V.  United  States,  155  U.  S.  163,  39  L.  ed. 
108,  15  Sup.  Ct.  Rep.  85,  which,  counsel 
says,  holds  directly  contrary  to  his  con- 
tention, and  that  he  has  not  the  ingeniiity 
to  suggest  how  the  court  can  now  decide  the 
case  at  bar  in  appellant's  favor  without  at 
least  by  implication  overruling  the  Schil- 
linger Case.  We  are  not  disposed  to  over- 
rule the  case,  either  directly  or  by  implica- 
tion. The  court  found  nothing  in  it 
antagonistic  to  the  reasoning  and  conclu- 
sion reached  in  the  Dooley  Case. 

In  United  SUtes  v.  Lynah,  188  U.  S. 
445,  47  L.  ed.  539,  23  Sup.  Ct  Rep.  349,  the 
Schillinger  Case  was  treated  as  subsisting 
authority,  and  Mr.  Justice  Brown,  who 
wrote  the  opinion  in  the  Dooley  Case,  in 
his  concurring  opinion  in  the  Lynah  Case, 
considered  it  as  correctly  declaring  the  law. 

[607]  The  Dooley  Case  and  cases  subse- 
quent to  it  which  are  relied  upon  by  appel- 
lant concerned  the  exaction  of  duties  or 
*  taxes  by  the  United  States  or  its  officers,  or 
property  taken  by  the  government  for  pub- 
lic purposes.^  In  such  cases  jurisdiction  in 
the  court  of  claims  for  the  recovery  of 
the  duties  and  taxes  or  for  the  value  of  the 
property  taken  was  declared. 

In  the  case  at  bar  (assuming  as  true  all 
that  is  charged)  there  was  a  wrong  in- 
flicted, if  a  wrong  can  be  said  to  have  been 
inflicted  by  the  sentence  of  a  court  legally 
constituted,  after  judgment  upon  issues 
openly  framed  by  the  opposing  parties,  both 

^United  States  v.  Welch,  217  U.  S.  333, 
54  L.  ed.  787.  28  L.R.A.(N.S.)  385,  30  Sup. 
Ct.  Rep.  527,  19  Ann.  Cas.  680;  United 
States  V.  Grizzard,  219  U.  8.  180,  55  L.  ed. 
165,  31  L.R.A.(N.S.)  1135,  31  Sup.  Ct.  Rep. 
162;  United  SUtes  v.  Emery,  B.  T.  Realty 
Co.  237  U.  S.  28,  59  L.  od.  825,  36  Sup.  Ct. 
Rep.   409, 


of  fact  and  the  applicable  law,  whether  that 
law  was  §§  2865  and  8082  of  the  Revised 
Statutes  or  the  Constitution  of  the  United 
SUtes  (Comp.  Stat.  1913,  §§  5548,  5785). 
But,  conceding  that  a  wrong  was  inflicted 
through  these  judicial  forms,  the  case  never- 
theless is  of  different  character  from  the 
Dooley  Case,  as  was  also  the  Schillinger 
Case.  The  latter  ease  passed  upon  the 
jurisdiction  of  the  court  of  claims  in  ac- 
tions founded  on  tort,  and  declared  the  gen- 
eral principle  to  be,  based  on  a  policy  im- 
posed by  necessity,  that  govemmenU  are 
not  liable  "for  unauthorized  wrongi  inflicted 
on  the  citizen  by  their  officers,  though  oc- 
curring while  engaged  in  the  discharge  of 
official  duties."  And  it  was  further  said: 
"Congress  has  wisely  reserved  to  itself  th« 
right  to  give  or  withhold  relief  where  the 
claim  is  founded  on  wrongful  proceedings 
of  an  officer  of  the  government."  Gibbons 
V.  United  SUtes,  8  Wall.  269,  275,  19  L. 
ed.  453,  454;  Morgan  v.  United  SUtss,  14 
Wall.  531,  534,  20  L.  ed.  738,  739. 

The  Schillinger  Case  was  cited  in  the 
New  Orleans-Belize  Royal  Mail  &  C.  A.  8.  8. 
Co.  V.  United  SUtes,  239  U.  S.  202,  ante,  227, 
36  Sup.  Ct.  Rep.  76,  in  rejection  of  a  con- 
tention that  the  United  SUtes  was  liable 
for  services  imposed  by  their  officers  ouUide 
of  a  contract  [608]  with  the  Ri^  Mail 
Company,  in  the  performance  of  which  the 
vessel  owned  by  the  company  was  damaged* 

We  repeat,  therefore,  that  the  Schillin* 
ger  Case  being  subsisting  authority,  and 
appellant  conceding  that,  if  such  be  its 
value,  it  is  controlling,  further  discussion  is 
unnecessary. 

Judgment  affirmed. 

Mr.  Justice  McReynolds  took  no  part  ia 
the  consideration  and  decision  of  this 


WILLIAM    W.   WHITE,   Appt, 

V. 

UNITED  STATES.    (No.  163.) 


JOHN   D.   FORD,  Appt, 

V. 

UNITED  STATES.    (No.  154.) 
(See  S.  C.  Reporter's  ed.  608-614.) 

Navy  —  pay  of  retired  officer  —  nctlYie 
service. 
Officers  in  the  Navy  transferred  to  the 
retired  list  with  an  increase  In  rank  are 
not  entitled  to  pay  and  allowances  of  the 
higher  grade  during  active  servioe  after  re* 
tirement,  by  virtue  of  the  provision  of  the 
act  of  March  4,  1913  (37  SUt  at  L.  801, 
chap.  148,  Comp.  SUt.  1913,  §  2838),  that 
all  naval  officers  who  have  be^  or  duUl  be 
advanced  since  March  8,  1899,  shall  have 

SS9  V.  8. 


1916. 


WUITK  T.  UNITED  8TATBS. 


the  pay  and  allowaneea  of  the  higher  grade 
from  the  dates  of  their  oommieiiion,  einoe 
each  proYiBion  muat  be  read  at  applying 
only  to  advanced  officers  upon  the  active 
list 

(For  other  cases,  see  Army  and  Navy,  YI.  b, 
in  Digest  Sop.  Ct.  1908.1 

[Nos.  163  and  164.] 

Argued  January  7,  1916.    Decided  January 

17,  1916. 

APPEALS  from  the  Court  of  Claims  to 
review  judgments  sustaining  demurrers 
to  petitions  of  retired  naval  officers  for  in- 
creased pay  while  in  active  service.     Af- 
firmed. • 
See  same  case  below,  49  Ct.  CI.  702. 
The  facts  are  stated  in  the  opinion. 

lir.  Simon  liyon  argued  the  cause,  and, 
with  Messrs.  Edward  S.  McCalmont  and 
R.  B.  H.  Lyon,  filed  a  brief  for  appellant  in 
No.  153: 

So  long  as  the  language  used  is  unam- 
biguous, a  departure  from  the  natural  mean- 
ing is  not  justified  by  any  consideration 
of  its  consequence  or  public  policy;  and  it 
is  the  plain  duty  of  the  court  to  give  it 
force  and   effect. 

Lake  County  v.  Rollins,  ISO  U.  S.  662, 
32  L.  ed.  1060,  9  Sup.  Ct  Rep.  651 ;  United 
SUtes  V.  Goldenberg,  168  U.  S.  05,  42 
L.  ed.  304,  18  Sup.  Ct.  Rep.  3;  Johnson  v. 
Southern  P.  Co.  196  U.  S.  15,  49  L.  ed. 
368,  25  Sup.  Ct  Rep.  158,  17  Am.  Keg.  Rep. 
412. 

It  is  fairly  and  justly  presumable  that 
the  legislature,  which  was  unrestrained  in  its 
authority  over  the  subject,  has  so  shaped 
the  law  as,  without  ambiguity  or  doubt,  to 
bring  within  it  everything  that  was  meant 
should  be  embraced. 

Cooley,  Tazn.  3d  ed.  p.  464. 

The  statute  must  be  held  to  mean  what 
its  language  imports;  when  it  is  clear  and 
imperative,  reasoning  ab  inconvenienti  is  of 
no  avail,  and  there  is  no  room  for  construc- 
tion. 

Cherokee  Tobacco  (Boudinot  t.  United 
States)  11  WalL  616,  20  L.  ed.  227;  Lewis 
V.  United  States,  92  U.  S.  621,  23  L.  ed. 
514;  Lake  County  t.  Rollins,  130  U.  S. 
602,  32  L.  ed.  1060,  9  Sup.  Ct  Rep.  651. 

Construction  and  interpretation  have  no 
function  where  the  terms  of  the  statute  are 
plsin  and  certain,  and  its  meaning  clear. 

Colorado  A  N.  W.  R.  Co.  v.  United  States, 
209  U.  S.  544,  52  L.  ed.  91»,  28  Sup.  Ct. 
Bep.  510. 

The  statute  is  a  remedial  one  and  should 
he  liberally  interpreted. 


Merchanto'  Nat  Bank  t.  United  States, 
42  Ct  CI.  6;   1  Kent,  Com.  465. 

In  expounding  remedial  laws,  the  courts 
will  extend  the  remedy  as  far  as  the  words 
will  admit 

H^den's  Case,  8  Coke^  7;  Pierce  v.  Hop- 
per, 1  Strange,  258. 

A  remedial  statute  ought  not  to  be  con- 
strued so  as  to  defeat  in  part  the  very 
purpose  of  its  enactment 

Beley  v.  Naphtaly,  169  U.  S.  853,  42 
L.  ed.  775,  18  Sup.  Ct.  Rep.  354;  Jones  ▼. 
New  York  Guaranty  &  L  Co.  101  U. 
S.  626,  25  L.  ed.  1034;  Twenty  Per  Cent 
Cases  (United  States  ▼.  Fit^trick)  13 
WalL  575,  20  L.  ed.  708;  Ross  v.  Doe,  1 
Pet   667,  7   L.  ed.   307. 

Although  the  pendency  of  one  class  of 
claims  may  have  induced  the  passage  of 
an  act  of  Congress  providing  for  their 
adjustment,  the  act  may  embrace  other 
claims  if  its  terms  are  sufficiently  wide  so 
to  do. 

United  SUtes  t.  Hvoslef,  237  U.  S.  1, 
59  L.  ed.  813,  35  Sup.  Ct.  Rep.  459,  Ann. 
Cas.  1916A,  286;  Thames  ft  M.  M.  Ins. 
Co.  T.  United  SUtes,  237  U.  S.  19,  59 
L.  ed.  821,  35  Sup.  Ct  Rep.  496,  Ann.  Cas. 
1015D,  1087. 

Where  a  law  is  plain  and  unambiguous, 
whether  expressed  in  general  or  limited 
terms,  there  is  no  room  left  for  construc- 
tion, and  a  resort  to  extrinsic  facU  is  not 
permitted  to  ascerUin  iU  meaning. 

Bartlett  v.  Morris,  9  Port  (Ala.)  266; 
United  SUtes  v.  Musgrave,  160  Fed.  700; 
Lake  County  v.  Rollins,  130  U.  S.  671,  32 
L.  ed.  1060,  9  Sup.  Ct  Rep.  651. 

Assistant  Attorney  General  niompsoii 
argued  the  cause,  and,  vrith  Mr.  Richard  P. 
Whiteley,  filed  a  brief  for  the  United  SUtes 
in  Ko.  153. 

Mr.  Frederick  A.  Fenning  argued  the 
cause,  and,  with  Messrs.  Lloyd  Odendlial 
and  Spencer  Gordon,  filed  a  brief  for  ap- 
pellant in  Ko.  KM  t 

The  act  of  March  4,  1913,  should  be  in- 
terpreted licoording  to  the  usual  meaning 
of  iU  words. 

Maillard  v.  Lawrence,  16  How.  255,  261, 
14  Lw  ed.  927,  930;  Cherokee  Tobacco 
(Boudinot  T.  United  SUtes)  11  WalL  616, 
620,  20  L.  ed.  227,  229;  United  SUtes  v. 
Temple,  105  U.  S.  97,  99,  26  L.  ed.  967, 
968;  Knox  County  v.  Morton,  15  C.  C.  A 
673,  32  U.  S.  App.  513,  68  Fed.  787 ;  Union 
Cent  L.  Ins.  Co.  v.  Champlin,  54  C.  C. 
A.  208,  116  Fed.  858. 

A  retired  officer  is  certainly  an  officer 
of  the  Navy. 
Silver  v.  Ladd,  7  WaU.  219,  19  L.  ed.  i      Franklin  v.  United  SUtes,  29  Ct  CL  6; 
1)8;  Johnson  v.  Southern  P.  Co.  mqfira; '  T^ler  v.  United  States  16  Ct  CL  223,  10^ 
••  L.  ed.  30  4 


611-613 


SUPREME  COURT  OF  THE  UNTTBD  STATES. 


Oor.  ToMy 


U.  S.  244,  26  L.  ed.  985 ;  Fowler  t.  United 
States,  31  Ct  CL  35. 

A  grade  is  a  step  in  a  series,  a  rank 
(Schuetze  ▼.  United  States,  24  Ct.  CI.  229), 
such  as  from  commander  to  captain,  to 
admiral  It  has  nothing  to  do  with  the 
question  of  active  or  retired  service. 

Assistant  Attorney  General  Thompson 
argued  the  cause  and  filed  a  brief  for  the 
United  SUtes  in  ^o.  154. 

Mr.  Justice  Holmes  delivered  the  opin- 
ion of  the  court: 

These   claims   raise   the   same   question. 
The  claimant  White  was  a  lieutenant  com- 
mander in  the  Navy.    On  June  30,  1905,  he 
was  transferred  to  the  retired  list,  on  his 
own  request,  with  the  rank  of  commander 
(act  of  March  3,  1890,  chap.  413,  §§  8,  9, 
30    SUt.    at   L.    1004,    Comp.    Stat.    1913, 
§§   2636,   2637),   and   on   April    13,    1911, 
was  commissioned  a  commander  on  the  re- 
tired   list   from    June    30,    1905.    (Act    of 
March  4,  1911,  chap.  266,  36  SUt.  at  L. 
1354,  Comp.  Stat.  1913,  §  2068.)     He  was 
continued  in  active  service  from  June  30, 
1905,  until  October  31,  1911.     (Act  of  June 
7,   1900,   chap.   859,   31   Stat,   at   L.   703.) 
The  claimant  Ford  was  a  captain,  was  re-  [ 
tired  on  May  19,   1902,  under  Rev.  Stat. 
§  1444,  Comp.  Stat.  1913,  S  2622,  with  the 
rank  of  rear  admiral  (act  of  March  3,  1899, 
chap.  413,  §  11,  30  SUt.  at  L.  1007,  Comp. 
SUt.  1913,  §  2641),  and  was  commissioned 
rear  admiral  on  the  retired  list  from  May 
19,  1902.     (Act  of  March  4,  1911,  chap.  266, 
36    SUt.    at   L.    1354,    Comp.    SUt.    1913, 
§  2068.)     He  was  continued  on  active  duty 
from    May    19,    1902,   until    December   25, 
1907.     (Act  of  June  7,  1900,  chap.  859,  31 
SUt  at  L.  703.)     As  provided  by  the  last- 
mentioned  sUtuU,  both  of  these  officers  re- 
ceived the  pay  and  allowances  of  the  rank 
they  held  before  they  were  retired.    By  the 
naval  appropriation  act  of  March  4,  1913, 
chap.  148,  37  SUt.  at  L.  891,  892,  Comp. 
SUt.  1913,  §  2838,  it  was  enacted  that  "aU 
officers  of  the  Navy  who,  since  the  third  day 
of  March,  eighteen  hundred  and  ninety-nine, 
have  been   advanced  or  may  hereafter   be 
advanced  in  grade  or  rank  pursuant  to  law 
shall  be  allowed  the  pay  and  allowances  of 
the  higher  [612]  grade  or  rank  from  the 
dates  sUted  in  their  commissions."     The 
claims  are  made  under  this  act  for   the 
difference  between  the  pay  and  allowances 
received  during  active  service  after  retire- 
ment and  that  of  the  higher  grade  to  which 
the    claimanU    respectively    had   been    ad- 
vanced.    Demurrers  to  the  petitions  were 
sustained  by  the  court  of  claims. 

The  claimanU,  although  pressing  the  uni- 
versal application  of  the  sUtuU  according 
to  tht  literal  meaning  of  iU  words,  still 


Ucitly  concede  that  we  must  go  behind 
the  letter  of  the  law.  For  while  the  stat- 
uU  says  that  all  officers  who  have  been  ad- 
vanced since  the  daU  mentioned  shall  have 
the  pay  of  the  higher  grade,  and  says  noth- 
ing about  active  service,  the  claims  are  oon- 
fined  to  the  periods  of  active  service  named^ 
which  implies  a  concession  that  the  advance 
in  grade  by  itself  was  not  enough.  And 
this  concession  was  required  by  the  fact 
that  the  sUtuU  granU  allowances  as  well 
as  pay,  and  that  allowances  are  an  inci- 
dent of  active  duty  alone. 

As  it  stands  admitted  that  the  sUtuto 
is  of  more  limited  scope  than  is  apparent  on 
iU  face,  to  an  untrained  reader,  at  least,  the 
question  is  whether  it  is  to  be  read  as  ap- 
plying to  all  advanced  officers  who  have 
been  on  active  service,  or  only  to  all  such 
officers  upon   the  active   list.     We  are  of 
opinion  that  the  latUr  is  the  true  meaning, 
and  that  the  decision  of  the  court  of  claims 
was  right.     The  general  rule  of  the  sUt- 
utes  is  found  in  Rev.  SUt.  §  1462,  Comp. 
SUt.  1913,  §  2652.    <^o  officer  on  the  re- 
tired list  of  the  Navy  shall  be  employed  oo 
active  duty  except  in  time  of  war."     An 
exception,  limited  to  twelve  years  from  ito 
passage,  was  made  by  the  act  of  June  7, 
1900,  allowing  officers  on  the  retired  list, 
in  the  discretion  of  the  SecreUry  of  the 
Navy,  to  be  ordered  to  such  duty  as  they 
might  be  able  to  perform,  and  giving  them 
while  so  employed  the  pay  and  allowances 
of  the  grade  on  the  active  list  from  which 
they  were  retired.    When  the  act  of  1918, 
under  which  these  claims  are  made,  [613] 
was  passed,  this  exception  had  expired, — all 
services  under  it  had   been   rendered   and 
paid  for,  and,  with  other  exceptions  not  af- 
fecting this  case,  the  general  rule  was  in 
force.    It  is  more  rational  to  suppose  that 
Congress  was  dealing  with  present  affairs 
than    that   it    was   reopening   transactions 
that  might  be  Un  years  old,  and  that  must 
have  been  finished,  at  the  latest,  nearly  a 
year  before.    And  this  construction  is  con- 
firmed when  we  notice  that  the  increased 
pay  and  allowances  are  given  from  the  date 
of  the  conmiission;  that  is,  if  the  claimante 
are  right,   from   the  daU  of  their   retire- 
ment,   without   regard   to   tiie   time    when 
their  active  duty  began.     In  these  eases  it 
was   continuous  with   their  service   before 
retirement.    But  it  might  have  begun  years 
afterwards,   and   yet,   by  the   sUtuU,   the 
daU  of  the  increase  in  pay  and  the  allow- 
ances would  have  been  the  same. 

The  conclusion  to  which  the  sUtutes  di* 
rectly  concerned  would  lead  us  is  confirmed 
still  further  by  consideration  of  the  act  of 
August  22,  1912,  chap.  335,  37  SUt.  at  L. 
328,  329.  This  act  provided  that  thereafter 
any  naval  officer  on  the  retired  list  roighti 


1916. 


NORTHERN  P.  R.  CO.  v.  MSB8B. 


618,  614,  617 


with  his  consent,  in  the  discretion  of  the 
Secretary  of  the  Navy,  be  ordered  to  such 
duties  as  he  might  be  able  to  perform,  and 
while  so  employed  in  time  of  peace  should 
receiYe  the  pay  and  allowances  of  an  officer 
on  the  aetire  list  of  the  same  rank,  pro* 
Tided  that  he  was  not  to  receive  more  than 
the  pay  and  allowances  of  a  lieutenant, 
senior  grade,  on  the  active  list  of  like 
lengtii  of  service,  snd,  if  his  retired  pay 
exceeded  that,  then  he  was  to  receive  his 
retired  pay  only.  The  clash  that  there 
would  be  between  the  policy  of  this  act  and 
that  of  1013,  if  construed  as  the  claimants 
would  have  it  construed,  is  plain. 

Finally,  it  may  be  worth  noticing  that 
the  reports  that  introduced  the  enactment 
pointed  out  as  the  evil  to  be  remedied  that, 
under  the  act  of  June  22,  1874,  chap.  302, 
18  Stat,  at  L.  191,  Comp.  SUt.  1013,  § 
2837,  the  only  officers  who  did  not  receive 
the  pay  of  [614]  their  grade  from  the  time 
they  took  rank  as  stated  in  their  commis- 
sions were  the  youngest  officers,  who  were 
appointed  to  the  lowest  grade,  and  therefore 
not  promoted  to  fill  a  vacancy,  as  contem- 
plated in  the  act  of  1874.  House  Rep.  No. 
1080.  62d  Cong.  2d  Sees.  Senate  Rep.  No. 
1217.     62d  Cong.  3d  Sess. 

Judgments  affirmed. 

Mr.  Justice  McReynoIds  took  no  part  in 
the    consideration    and    decision    of    these 


NORTHERN   PACIFIC   RAILWAY   COM- 
PANY,  Petitioner, 

V. 

HARY  A.  MEESE  et  sL 
(See  a  C.  Reporter's  ed.  614-620.) 

Federal  courts  —  following  state  deci- 
sions —  construction  of  workmen's 
compensation  act. 

1.  The  Federal  courts  must  accept  the 
conclusion  of  the  highest  state  court  that 
the  Washington  workmen's  compensation 
act  (Wash.  Laws  1011,  chap.  74)  took  swav 
any  ezistins  riglit  imder  Rem.  k  BaL 
Code,  §§  183,  104,  to  maintain  an  action 
for  the  wrongful  death  of  an  employee,  not 
only  as  against  the  employer,  but  as  against 
any  third  person  by  whose  negligence  the 
death  may  have  been  caused,  where  the  em- 


ployee sustained  the  fatal  injury  while  en- 
gaged about  his  ordinary  duties  at  his  em- 
ployer's plant. 

[For  other  cases,  see  Courts,  VII.  c,  8.  In 
Digest  Sup.  Ct.  1008.1 

Constitutional  law  —  equal  protection 
of  the  laws  —  workmen's  compensa- 
tiou  act  —  taking  away  remedy 
against  third  person. 

2.  The  equal  protection  of  the  laws  is 
not  denied  by  construing  the  Washington 
workmen's  compensation  act  (Wash.  Laws 
1011,  chap.  74),  as  takine  away  any  exist- 
ing right,  under  Rem.  &  Bal.  Ck>de,  §§  183, 
104,  to  maintain  an  action  for  the  wrong- 
ful death  of  an  employes,  not  only  as  against 
the  employer,  but  as  against  any  third  per- 
son by  whose  negligence  the  deaui  may  have 
been  caused,  where  the  employee  sustained 
the  fatal  injury  while  engaged  about  his 
ordinary  duties  at  his  employer's  plant. 
[For  other  cases,  see  Constitutional  Law,  lY. 
a,  6,  in  Digest  Sup.  Ct.  1008.] 

[No.   133.] 

Argued  and  submitted  December  13,  1015. 
Decided  January  17,  1016. 

ON  WRIT  of  Certiorari  to  the  United 
States  Circuit  Court  of  Appeals  for  the 
Ninth  Circuit  to  review  a  judgment  which 
reversed,  with  directi(ms  to  overrule  a  de- 
murrer to  the  complaint,  a  judgment  of  the 
District  Court  for  the  Western  District  of 
Washington,  dismissing  a  complaint  in  an 
action  for  death.  Judgment  of  the  Circuit 
Court  of  Appeals  reversed,  and  that  of  the 
District  Court  afiSrmed. 

Sec  same  case  below,  127  C.  C.  A.  622, 
211  Fed.  264,  4  N.  C.  C.  A.  810. 

The  facts  are  stated  in  the  opinion. 

Mr.  Charles  W.  Bunn  argued  the  cause 
and  filed  a  brief  for  petitioner. 

Mr.  Govnor  Teats  submitted  the  cause 
for  respondents.  Messrs.  Leo  Teats  and 
Ralph  Teats  were  on  the  brief. 

Mr.  Justice  McReynoIds  delivered  the 
opinion  of  the  court: 

Benjamin  Meese,  an  employee  of  the  Seat- 
tle Brewing  &  Malting  Company,  was  fatal- 
ly injured  on  April  12,  1013,  while  engaged 
about  his  ordinary  duties  at  its  plant  in 
Seattle.  Alleging  that  his  death  resulted 
from  the  negligence  of  the  petitioner  rail- 
way company,  his  wife  and  children  brought 
this  action  for  damages  in  the  district  court 


NoTB. — ^As  to  state  decisions  and  laws  as 
rules  of  decision  in  Federal  courts-'See 
notes  to  C!lark  v.  Graham,  5  L.  ed.  U.  S. 
334;  Elmendorf  v.  Taylor,  6  L.  ed.  U.  S. 
200;  Jackson  ex  dem.  St.  John  v.  Chew,  6 
L.  ed.  U.  S.  583;  Mitchell  v.  Burlington,  18 
L.  ed.  U.  S.  351 ;  United  SUtes  ex  rel.  Butz 
v.  Muscatine,  10  L.  ed.  U.  S.  400;  Fore- 
paugh  V.  Delaware,  L.  ft  W.  R.  Co.  5  L.RJ^. 
•0  Ii.  ed. 


508;  and  Snare  &  T.  0>.  ▼.  Friedman,  40 
L.R.A.(N.S.)  380. 

On  workmen's  compensation  acts,  gen- 
eraUy — see  note  to  Milwaukee  v.  Miller, 
L.ILA.1016A,  23. 

As  to  constitutional  equality  of  privileges, 
immunities,  and  protection,  generally — see 
note  to  Louisville  Safety  Vaiut  k  T.  Co.  v. 
Louisville  ft  N.  R.  0>.  14  L.R.A.  570. 

4«^ 


617-619 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oor.  TEBii, 


of  the  United  States.  They  relied  upon  the 
following  aections,  Remington  k  Balllnger's 
Annotated  Codea  and  Statutes  of  Washing- 
ton: 

"Section  183.  ..  .  When  the  death  of 
a  person  is  caused  by  the  wrongful  act  or 
neglect  of  another,  his  heirs  or  personal 
representatives  may  maintain  an  action  for 
damages  against  the  person  causing  the 
death." 

"Section  194.  No  action  for  a  personal 
injury  to  any  person  occasioning  his  death 
shall  abate,  nor  shall  such  right  of  action 
determine,  by  reason  of  such  death,  if  he 
have  a  wife  or  child  living,  .  .  .;  but 
inch  action  may  be  prosecuted,  or  com- 
menced and  prosecuted,  in  favor  of  such 
wife  or  in  favor  of  the  wife  and  children. 


» 


The  railway  company  demurred,  specify- 
ing as  one  of  the  groimds  therefor:  'That 
there  is  no  authority  in  law  under  which 
the  plaintiffs'  action  can  be  maintained  as 
against  this  answering  defendant,  it  ap- 
pearing from  the  complaint  that  Benjamin 
Meese,  on  account  of  whose  wrongful  death 
this  action  was  brought,  sustained  the  in- 
juries [618]  of  which  complaint  is  made,  at 
the  place  of  work  and  plant  of  his  employer, 
and  that  plaintiffs'  claim  comes  within  the 
terms  of  chapter  74  of  the  Session  Laws  of 
the  state  of  Washington  for  1911,  being  an 
act  relating  to  compensation  of  injured 
workmen,"  approved  March  14,  1911. 

By  the  act  referred  to  the  legislature  of 
Washington  specifically  repealed  certain  sec- 
tions of  Remington  k  Ballinger's  Code,  not 
including  $§^83  And  194 ;  established  a  com- 
prehensive plan  for  the  relief  of  workmen 
injured  in  extrahazardous  work,  ahd  their 
families  and  dependents,  regardless  of  the 
questipn  of  fault;  and  likewise  made  pro- 
vision for  raising  the  necessary  funds  by 
enforced  contributions  from  specified  em- 
ployers, both  breweries  and  railroads  being 
included. 

The  trial  court  (206  Fed.  222)  held  that 
the  purpose  of  the  act  of  March  14,  1911, 
was  not  merely  to  end  controversies  between 
employers  and  employees  in  respect  of  in- 
juries to  the  latter,  but  to  end  all  suits  at 
law  for  the  injury  or  death  of  employees 
while  engaged  in  certain  occupations,  no 
matter  Vy  whom  injured  or  killed,  with  cer- 
tain exceptions  not  here  important.  And 
bj  a  judgment  dated  July  11,  1913,  the 
demurrer  was  accordingly  sustained  and 
the  complaint  dismissed. 

This  action  of  the  trial  court  was  re- 
Teraed  by  the  circuit  court  of  appeals  (127 
C.  C.  A.  622,  211  Fed.  254,  4  N.  C.  C.  A. 
819),  the  latter  being  of  opinion  that  the 
act  in  question  did  not,  and  was  not  intend- 
ed to,  deprive  complainanta  of  their  right  to 


proceed  under  §§  183  and  194  of  the  Code, 
since  deceased  was  not  its  employee  when 
the  accident  occurred.  Counsel  for  the 
railway  called  especial  attention  to  Peet  y. 
Mills,  76  Wash.  437,  L.RJL1916A,  358,  136 
Pac.  685,  Ann.  Cas.  1915D,  154,  4  N.  C.  C. 
A.  786,  decided  November  28,  1913,  and  in- 
sisted that  the  conclusions  there  announced 
were  in  accord  with  the  opinion  and  judg- 
ment of  the  district  court  then  under  re- 
view; but  the  circuit  court  of  appeals  re- 
jected this  view,  saying:  "We  are  unable 
to  agree  [619]  with  counsel  that  the  su- 
preme court  of  the  state  of  Washington  in 
that  case  reached  a  conclusion  different 
from  that  reached  by  ua   in   the   present 


M 


case. 

The  error  now  assigned  and  relied  on  is: 
"That  the  circuit  court  of  appeaU  phould 
have  followed  Peet  v.  Mills,  and  have  af- 
firmed the  judgment  of  the  district  court." 

It  is  settled  doctrine  that  Federal  courts 
must  accept  the  construction  of  a  state 
statute  deliberately  adopted  by  ita  highest 
court.  Old  Colony  Trust  Co.  t.  Omaha,  230 
U.  S.  100,  116,  57  L.  ed.  1410,  1416,  33  Sup. 
Ct.  Rep.  967;  Fairfield  v.  Qallatin  County, 
100  U.  S.  47,  52,  25  L.  ed.  544,  546.  The 
supreme  court  of  Washington  in  Peet  ▼. 
Mills  construed  the  statute  in  question,  and 
we  think  its  opinion  plainly  supports  the 
holding  of  the  district  court  and  is  in  di- 
rect opposition  to  the  conclusion  reached 
by  the  circuit  court  of  appeals.  The  follow- 
ing excerpts  from  the  opinion  will  suflloe 
to  indicate  its  import: 

''By  this  appeal,  we  are  again  called  upon 
to  review  the  workmen's  compensation  act 
of  1911  (Laws  1911,  chap.  74,  p.  345,  8 
Rem.  k  Bal.  Code,  §§  6604-1  et  seq.),  un- 
der appellant's  contention  that  the  act  is 
applicable  only  where  recovery  is  sought 
upon  the  groimd  of  negligenoe  of  the  em- 
ployer.   .    .    . 

".  .  .  The  conclusion  is  evident  that, 
in  the  enactment  of  this  new  law,  the 
legislature  declared  it  to  be  tiie  policy  of 
this  state  that  every  hazardous  industry 
within  the  purview  of  the  act  should  bear 
the  burden  arising  out  of  injuries  to  its 
employees;  and  that  it  was  the  further 
policy  of  the  state  to  do  away  with  the 
recognized  evils  attaching  to  the  remedies 
under  existing  forms  of  law  and  to  sub- 
stitute a  new  remedy  that  should  be  ample, 
full,  and  complete,  reaching  every  injury 
sustained  by  any  workman  while  employed 
in  any  such  industry,  regardless  of  the 
cause  of  the  injury  or  the  negligenoe  to 
which  it  might  be  attributed.  We  can  con- 
ceive of  no  language  the  legislature  might 
have  employed  that  would  make  its  purpose 
and  intent  more  ascertainable  than  that 
made  use  of  in  the  1st  section  of  the  act. 

SS9  U.  8. 


1916. 


ROGERS  T.  HENliEPIN. 


610-621 


To  atj  with  [620]  appellftnt  that  the  intent 
of  the  act  is  limited  to  the  abolishment  of 
Begligenoe  as  a  ground  of  action  against  an 
employer  only  is  to  overlook  and  read  out  of 
the  act  and  its  declaration  of  principles 
the  economic  thought  sought  to  be  crystal- 
lized into  law, — that  the  industry  itself  was 
the  primal  cause  of  the  injury,  and,  as 
such,  riiould  be  made  to  bear  its  burdens. 
•  .  .  Thai  in  so  doing  the  legislative 
mind  was  intent  upon  the  abolishment  of 
all  causes  of  action  that  may  have  thereto- 
fore existed,  irrespective  of  the  persons  in 
favor  of  whom  or  against  whom  such  right 
might  have  existed,  is  equally  clear  from 
the  language  of  t  5  of  the  act,  containing 
m  schedule  of  awards,  and  providing  that 
each  workman  injured  in  the  course  of  his 
employment  should  receive  certain  compen- 
sation, and  'such  payment  shall  be  in  lieu 
of  any  and  all  rights  of  action  whatsoever 
against  any  person  whomsoever.'  .  .  . 
For  these  reasons  we  are  of  the  opinion 
that  the  compensation  provided  by  the  act 
in  case  of  injury  to  any  workman  in  any 
hazardous  occupation  was  intended  to  be 
exclusive  of  every  other  remedy,  and  that 
all  causes  of  action  theretofore  existing, 
except  as  they  are  saved  by  the  provisos  of 
the  act,  are  done  away  with." 

Respondents'  suggestion  that  the  con- 
struction of  the  act  adopted  by  the  trial 
court  would  cause  it  to  conflict  with  the 
equal  protection  clause  of  the  14th  Amend- 
ment is  without  merit.  They  have  raised 
no  other  question  involving  applicitlou  of 
the  Federal  Constitution. 

The  judgment  of  the  Circuit  Court  of 
Appeals  must  be  reversed  and  the  action 
of  the  District  Court  affirmed. 

And  it  is  so  ordered. 

« 

Mr.  Justice  McKenna  is  of  opinion  that 
the  statute  was  properly  construed  by  the 
circuit  court  of  appeals,  and  that  its  con- 
clusions do  not  conflict  with  the  opinion  of 
the  state  supreme  court.  He  therefore  dis- 
sents. 


[621]    GEORGE   D.   ROGERS,   Frank  E. 
Crandall,  et  al.,  Appts., 

V. 

COUNTY  OF  HENNEPIN,  Henry  0. 
Hanke,  as  Its  County  Treasurer  and  In- 
dividually, and  Al  P.  Brickson,  as  Coun- 
ty Auditor  and  Individually. 

(See  a  C.  Rq»orter's  ed.  621,  622.) 

€k>nrta  —  amoant  in  <x>ntroTersy  — 
uniting  claims. 

Members  of  a  chamber  of  commerce 
eannot  unite  the  amounts  for  whieh  th^ 
•6  Ii.  ed. 


are  individually  assessed  on  account  of  such 
membership  in  order  to  make  up  the  amount 
necessary  to  sustain  the  jurisdiction  of  a 
Federal  district  court  of  a  suit  to  prevent 
the  collection  of  such  taxes  as  illegal. 
[For  other  cases,  see  Courts,  008-911,  In  Di* 
gest  Sup.  Ct  1908.] 

[No.  411.] 

Argued  December  6,   1916.     Decided  Jan- 
uary 17,  1916. 

APPEAL  from  the  District  Court  of  ths 
United  States  for  the  District  of  Min- 
nesota to  review  a  decree  which  dismissed 
the  bill  in  a  suit  to  enjoin  the  colleetion  of 
taxes.    Affirmed. 
The  facts  are  stated  in  the  opinion. 

Mr.  H.  V.  Mercer  argued  the  cause  and 
filed  a  brief  for  appellants: 

The  district  court  improperly  decided  the 
question  of  the  amount  in  controversy. 

Ex  parte  Baltimore  k  0.  R.  Co.  106  U. 
S.  '5,  27  L.  ed.  78,  1  Sup.  Ct.  Rep.  36; 
Troy  Bank  v.  G.  A.  Whitehead  k  Co.  222 
U.  S.  30,  66  L.  ed.  81,  32  Sup.  Ct  Rep.  9; 
Washington  Market  Co.  v.  Hoffman,  101 
U.  S.  112,  26  L.  ed.  782;  Davies  v.  Corbin, 
112  U.  S.  86,  28  L.  ed.  627,  5  Sup.  Ct.  Rep. 
4;  McDaniel  v.  Traylor,  106  U.  S.  416, 
49  L.  ed.  633,  25  Sup.  Ct.  Rep.  360; 
Smithers  v.  Smith,  204  U.  S.  633,  51  L.  ed. 
656,  27  Sup.  Ct.  Rep.  207 ;  Central  of  Geor- 
gia  R.  Co.  V.  Wright,  207  U.  S.  134,  62 
L.  ed.  139,  28  Sup.  Ct.  Rep.  47,  12  Ann. 
Cas.  463. 

Dismissal  should  not  be  made  for  want  of 
jurisdiction  except  in  case  of  legal  cer- 
tainty. 

Ralston  Steel  Car  Co.  v.  National  Dump- 
Car  Co.  222  Fed.  500;  Boyd  v.  New  York 
k  H.  R.  Co.  220  Fed.  174;  Schunk  v.  Mo- 
line,  M.  k  S.  Co.  147  U.  S.  500,  37  L.  ed. 
255,  13  Sup.  Ct.  Rep.  416;  Barry  T.  Ed- 
munds, 116  U.  S.  680,  20  L.  ed.  729,  6 
Sup.  Ct.  Rep.  501;  Put*in-Bay  Waterworks, 
Light  &  R.  Co.  T.  Ryan,  181  U.  S.  400, 
45  L.  ed.  927,  21  Sup.  Ct.  Rep.  709; 
Kearny  Cmmty  v.  Vandriss,  53  C.  C.  A. 
102,  115  Fed.  866. 

The  general  allegation  of  amount  is  suffi- 
cient. 

ChocUw,  0.  k  G.  R.  Co.  t.  Harrison,  235 
U.  S.  292,  59  L.  ed.  234,  35  Sup.  Ct.  Rep. 
27;  Galveston,  H.  &  S.  A.  R.  Co.  v.  Texas^ 
210  U.  S.  217-227,  52  L.  ed.  1031-1037,  28 
Sup.  Ct.  Rep.  638;  St.  Louis  Southwestern 
R.  Co.  V.  Arkansas,  235  U.  S.  350-362,  59 
L.  ed.  265-271,  35  Sup.  Ct  Rep.  99;  Wet- 
more  T.  Rymer,  169  U.  S.  115,  42  L.  ed. 
682,  18  Sup.  Ct  Rep.  293. 

The  plaintiffs  are  not  bound  to  sit  idle 
year  after  year,  because  the  damage,  taken 
separately  each  year,  is  not  up  to  the  jnris- 


SUPREME  COURT  OF  THE  UNITED  STATES.  Oct.  T^bm, 

dictional   amount.    Federal  courts  do  not  1 546,    162   Fad.    856;    Cooper  ▼.   Reynolda, 

allow  wrongful  confiscation  by  degrees.  10  Wall.  308,  315,  19  L.  ed.  931,  932;  Wis- 

Hutchinson  ▼.  Beckham,  55  C.  C.  A.  333,  consin  ▼.  Torinus,  28  Minn.  175,  9  N.  W. 

118  Fed.  399;  Board  of  Trade  t.  Cella  Com-  725;   30  Cyc.  115;   Minnesota  Y.  Northern 

mission  Co.  70  C.  C.  A.  28.  145  Fed.  28;  Securities  Co.  184  U.  S.  199,  46  L.  ed.  499, 

Hunt  ▼.  New  York  Cotton  Exch.  205   U.  22  Sup.  Ct.  Rep.  308;  1  Street,  Fed.  Eq.  Pr. 

S.   322,   51   L.  ed.  821,  27    Sup.   Ct.  Rep.  §§  426,  507,  pp.  260,  311;  Smyth  v.  Ames, 

529;    Scott  T.  Donald,   165   U.   S.  107,   41  169  U.  S.  466,  42  L.  ed.  819,  18  Sup.  Ct. 

L.  ed.  648,  17  Sup.  Ct.  Rep.  262;  Ex  parte  Rep.  418;  Hale  ▼.  Allinson,  188  U.  S.  56,  47 

Young,  209  U.   S.   146,  52  L.  ad.   723,  13  L.  ed.  380,  23  Sup.  Ct.  Rep.  244. 

L.R.A.  (N.S.)*  932,   28   Sup.   Ct.   Rep.   441,  It  was  good  practice  to  sue  in  the  name 

14  Ann.  Cas.  764;   Berryman  t.  Whitman  of  three  members,  representing  themselves 

College,  222  U.  S.  334,  56  L.  ed.  225,  32  and  others  similarly  situated. 

Sup.  Ct.  Rep.  147;  McNeill  ▼.  Southern  R.  PUtt  v.  Lecocq,  15  L.R.A.(N.S.)  558,  85 

Co.  202  U.  S.  543,  50  L.  ed.  1142,  26  Sup.  C.  C.  A.  621;  158  Fed.  723;  Penny  v.  Cen- 

Ct.  Rep.  722.  tral  Coal  k  Coke  Co.  71  C.  C.  A.  135,  138 

Regardless  of  whether  one  or  many  of  Fed.  769;   Smyth  t.  Ames,  169  U.  S.  466, 

the    members    are    plaintiffs,    the    decision  42  L.  ed.  819,  18  Sup.  Ct.  Rep.  418;  Bedford 

would  dispose  of  the  whole  question  at  to  v.  Ellis  [1901]  A.  C.  8,  70  L.  J.  Ch.  N.  S. 

all  and  make  it  res  judicata.  102,  83  L.  T.  N.  S.  686,  17  Times  L.  R.  139; 

Mcintosh    T.    Pittsburg,    112    Fed.    705;  Smith  ▼.  Swormstedt,  16  How.  288,  14  L. 

Smith  ▼.  Swormstedt,  16  How.  302,  14  L.  ed.  942;  Wallace  v.  Adams,  204  U.  S.  415» 

ed.  942 ;  Illinois  C.  R.  Co.  ▼.  Caffrey,  128  51  L.  ed.  547,  27  Sup.  Ct.  Rep.  363 ;  Watson 

Fed.  770;   Lyman  ▼.  Paris,  53  Iowa,  408,  ▼.  National  Life  k  T.  Co.  88  C.  C.  A.  880» 

5  N.  W.  621;    Sauls  ▼.  Freeman,  24  Fla.  162  Fed.  7;  Evans  v.  Chamber  of  Commerce^ 

222,    12    Am.    St.    Rep.    190,    4    So.    525;  86  Minn.  453, 91  N.  W.  8. 

Ashton   V.    Rochester,    133   N.   Y.   193,   28  A  contention,  here  made  in  good  faith. 

Am.  St.  Rep.  619,  30  N.  E.  965,  31  N.  E.  is  that  the  rights  of  these  parties  are  joint 

334;  Cromwell  v.  Sac  County,  94  U.  S.  351,  and   inseparable   for   the  purposes  of   this 

24    L.    ed.    195;    Fayerweather    v.    Ritch,  case;    this  contention  alone  involves  more 

195  U.  S.  276,  49  L.  ed.  193,  25  Sup.  Ct.  than    the  jurisdictional    amount;    it   must 

Rep.  58;  Fitch  v.  Stanton  Twp.  Ill  C.  C.  be  decided, — that  alone  is  sufficient. 

A.  210,  190  Fed.  310;  Hickman  v.  Fletcher,  Smithers  v.  Smith,  204  U.  S.  633,  51  L. 

115  C.  C.  A.  595,  195  Fed.  907.  ed.  656,  27  Sup.  Ct.  Rep.  297;  City  R.  Co. 

Where  the  controlling  object  of  the  suit  v.  Citizens'  Street  R.  Co.  166  U.   S.   557, 

is,  as  here,  something  common  to  all,  and  561,  41  L.  ed.  1114,  1115,  17  Sup.  Ct.  Rep. 

indivisible,  the  amounts  may  be  aggregated,  653 ;  Southern  P.  R.  Co.  v.  California,  118 

although  each  interest,  in  so  far  as  divisible,  U.  S.  109,  30  L.  ed.  103,  6  Sup.  Ct.  Rep. 

is  insufficient  in  amount  and  divisible  as  993;  St.  Paul,  M.  k  M.  R.  Co.  v.  St.  Paul 

to  all  others.  &  N.  P.  R.  Co.  15  C.  C.  A.  167,  32  U.  8. 

Troy  Bank  v.  0.  A.  Whitehead  k  Co.  222  App.    372,    68    Fed.    2;    Green    County    v. 

U.  S.  39,  56  L.  ed.  81,  32  Sup.  Ct.  Rep.  9;  Thomas,  211  U.  S.  598,  53  L.  ed.  343,  29 

Shields  v.  Thomas,  17   How.  3,  15  L.  ed.  Sup.  Ct.  Rep.  168. 

93;    Wariiington   Market  Co    v.   Hoffman,  ^    ^     ^^^  ^   g^j^  Attorney  General 

nK^'  L^T^'^^L\:^r   ^T'J.^Tl  ^'  of  Mimiiota,  and  Mr.  WiUiam  jf  Steven- 

Corbm,  112  U.  S.  36   28  IL  ed.  627   5  gup.  ^^  ^            ;^^              ^„^   ^^  ^^   j^^„ 

?h^'S-  T*'  ^'^^o^'L/'c^^^n/'  ^^^  ^«n®-  M.  Reef,  filed  a  brief  for  appellees: 

SJ^'if  ^r^'  ^^^.V"''•o^^.^P^,^S^  Each   member   in   the   chamber   of   com- 

fields  V.  Thonjas,  17  How.  8,  15  L.  ed  03;  ^^^^^  .^  ^^^^^  individually  for  his  per- 

?^^"^/  l^.^^'l^V^'o^^^^'  ®^^^i'  ^^W'  »o"*l    P^ope^y   ^^^^'    The   assessment   i. 

L™1  ;    hitman   (5;ile?e    Si*  U    S  -^^^^^^  ^^    ?-'-»'    ^^^    -*    ^^^^^   ^- 

^J^^  li  ^  ?o  o       ^%     \}i'  property.     The  person  is  taxed  on  account 

334^  56  U  ed  226,  32  Sup   a.  Rep.  147  ^^  J. ^  ^wnershirof  the  property,  and  the 

Members  of  this  sort  of  association  have  ^^^^^  ^^  ^^^                 determines  the  amount 

interwoven  and  common  mterests  unknown  .  .,      .        u,,^.  4i./i«-k:i:<.-  ;.  *.i«*<>i«r  ~»» 

to   ordinary   stockholders.     Even    ordinary  ««  *^«  ^  ^^*  ^*  liability  is  purety  p«. 

stockholders  would  be  indispensable  in  such  -onal;  consequently  the  proceedings  for  the 

case,  and  the  members  here  are  clearly  in-  collection  of  delmquent  personal  prop«^ 

dispensable.    Even  though  omitted  in  name,  ta^^s  are  m  personam, 

their  rights  are  indispensably  controlled.  CUrke  v.  Steams  County,  47  Minn.  652, 

Williams  v.  Bankhead,  19  Wall.  563,  22  50  N.  W.  615;  SUte  v.  Red  River  Vall^ 

L.  ed.  184;  Rogers  v.  Penobscot  Min.  Co.  Elevator  Co.  69  Minn.  131,  72  N.  W.  60; 

83  C.  C.  A.  380,  154  Fed.  610;  McAndrews  Laird,  N.  Co.  v.  Pine  County,  72  Minn.  409, 

V.  Chicago,  L.  S.  &  E.  R.  Co.  89  C.  C.  A.  75  N.  W.  723;  State  ex  rel.  Vossen  v.  Eber- 


uu. 


BOOEBS  T.  HKNNEPIN. 


621,  622 


liard.  90  Ifinn.  120,  Off  N.  W.  1116;  Du 
Pttge  County  ▼.  Jenks,  65  111.  281. 

The  claims  of  plaintiffa  cannot  be  aggre- 
gated to  make  up  the  jurisdictional  amount. 

Sioux  Falls  Nat.  Bank  v.  Swenson,  48  Fed. 
621;  Smithson  v.  Hubbell,  81  Fed.  594; 
Whelas  t.  St  Louis,  180  U.  S.  379,  45  L. 
ed.  583,  21  Sup.  Ct.  Rep.  402,  aflSrming  96 
Fed.  865;  Bussell  t.  Stansell,  105  U.  S. 
303,  26  L.  ed.  989;  Walter  ▼.  Northeastern 
R.  Co.  147  U.  S.  370,  37  L.  ed.  206,  13  Sup. 
Ct.  Bep.  348;  Henderson  ▼.  Wadsworth,  115 
U.  S.  264,  29  L.  ed.  377,  6  Sup.  Ct.  Bep. 
140;  Fanners'  Loan  A.  T.  Co.  ▼.  Waterman, 
106  U.  a  265,  27  L.  ed.  115,  1  Sup.  Ct. 
Bep.  181;  Adams  ▼.  Crittenden,  106  U.  S. 
576,  27  L.  ed.  99,  1  Sup.  Ct  Bep.  92;  Clay 
▼.  Field,  1S8  U.  S.  479,  34  L.  ed.  1049,  11 
Sup.  Ct  Bep.  419;  Gibson  T.  Shufeldt,  122 
U.  S.  27,  80  L.  ed.  1083,  7  Sup.  Ct.  Bep. 
1066;  DaTis  t.  Schwarts,  155  U.  S.  647, 
39  L.  ed.  296,  15  Sup.  Ct.  Bep.  237 ;  Hagge 
▼.  Kansas  City  Southern  B.  Co.  104  Fed. 
898. 

The  effect  on  future  taxation  of  a  deci- 
sion that  tiie  particular  taxation  is  invalid 
cannot  be  availed  of  to  add  to  the  sum  or 
value  of  the  matter  in  dispute. 

Holt  V.  Indiana  Mfg.  Co.  176  U.  S.  68- 
72,  44  L.  ed.  874-376,  20  Sup.  Ct.  Bep.  272; 
New  England  Mortg.  Secur.  Co.  v.  Gay,  145 
•0  li.  ed. 


U.  S.  123,  36  U  ed.  646,  12  Sup.  Ct.  Bep. 
815;  Clay  Center  v.  Farmers'  Loan  k  T.  Co. 
145  U.  S.  224,  36  L.  ed.  685,  12  Sup.  Ct. 
Bep.  817;  Citizens*  Bank  v.  Cannon,  164 
U.  S.  310,  41  L.  ed.  451,  17  Sup.  Ct  Bep. 
89. 

Mr.  Justice  McReynolda  delivered  the 
opinion  of  the  court: 

Three  complainants,  claiming  to  repre- 
sent themselves  and  others  like  situated 
(numbering  altogether  550),  instituted  this 
proceeding  in  equity  against  Hennepin 
county,  Minnesota,  and  certain  of  its  of- 
ficers, in  the  district  court  of  the  United 
States,  seeking  an  injunction  to  prevent 
collection  of  a  tax  under  $40  assessed 
against  each  of  them,  for  the  year  1913,  on 
account  of  his  membership  in  the  Minneapo- 
lis Chamber  of  Commerce.  [622]  Defend- 
ants challenged  the  court's  power  to  enter- 
tain the  cause  upon  the  ^ound  that  the 
amount  in  controversy  as  to  each  complain- 
ant is  the  sum  charged  against  him,  and 
demands  against  all  cannot  be  aggregated 
in  order  to  confer  jurisdiction.  The  district 
court  sustained  this  objection  upon  author- 
ity of  Wheless  v.  St  Louis,  180  U.  S.  379, 
45  L.  ed.  583,  21  Sup.  Ct  Bep.  402,  and  dis- 
missed the  bill.  It  committed  no  error  in 
so  doing,  and  ita  judgment  is  affirmed. 

471 


MEMOH-A^NDj^ 


OF 


Oammb  DiiPOiBD  OF  Without  Opihiohi. 


[626]  Qbobob  D.  LiLNOAsm  et  al.,  Plain- 

tifls  in  error,  ▼.  Jamks  W.  TBACKm  et  al. 

[No.  530.] 
Error    to    state    court — ^frivolout    Federal 

question-— validity  of  state  local  option 

law. 

In  Error  to  the  Court  of  Appeals  of  the 
State  of  Kentucky  to  review  a  judgment 
which  affirmed  a  judgment  of  the  Circuit 
Court  of  Scott  County,  in  that  state,  ad- 
judging valid  a  local  option  election. 

See  same  case  below,  164  Ky.  177,  175 
S.  W.  366. 

Messrs.  Bynum  E.  Hinton  and  J.  H. 
Hazelrigg  for  plaintiffs  in  error. 

Mr.  T.  L.  Edelen  for  defendants  in  error. 

October  26,  1915.  Per  Curiam:  Dis- 
missed for  want  of  jurisdiction  upon  the 
authority  of  (1)  Consolidated  Tump.  Co. 
V.  Norfolk  A  0.  V.  R.  Co.  228  U.  S.  596, 
600,  57  L.  ed.  982,  983,  33  Sup.  Ct  Rep. 
609;  Manhattan  L.  Ins.  Co.  v.  Cohen,  234 
U.  S.  123,  137,  58  L.  ed.  1245,  1254,  34  Sup. 
Ct.  Rep.  874;  Easterling  Lumber  Co.  v. 
Pierce,  235  U.  8.  380,  59  L.  ed.  279,  35  Sup. 
Ct.  Rep.  133;  (2)  Mugler  v.  Kansas,  123 
U.  8.  623,  31  L.  ed.  205,  8  Sup.  Ct.  Rep.  273; 
Rippey  v.  Texas,  193  U.  S.  504,  48  L.  ed. 
767,  24  Sup.  Ct  Rep.  516;  Eberle  v.  Michi- 
gan, 232  U.  S.  700,  58  L.  ed.  803,  34  Sup. 
Ct.  Rep.  464. 


WnuAic  Wallbbboht,  Sb.,  et  al..  Plaintiffs 

in  Error,  v.  E.  K.  IirosAic  et  al.   [No. 

549.] 
Error    to    state    court — ^frivolous    Federal 

question — ^validity   of    state   prohibitory 

law. 

In  Error  to  the  Court  of  Appeals  of  the 
State  of  Kentucky  to  review  a  judgment 
which  affirmed  a  judgment  of  the  Circuit 
Court  of  Bell  Coimty,  in  that  state,  ad- 
judging valid  a  local  option  election. 

See  same  case  below,  164  Ky.  463,  175  8. 
W.  1022. 

Messrs.  James  H.  Hazelrigg  and  Lawrence 
Maxwell  for  plaintiffs  in  error. 
•0  Ii.  ed. 


Mr.  T.  L.  Edelen  for  defendants  in  error. 

October  25,  1915.  Per  Curiam:  Dis- 
missed for  want  of  jurisdiction  upon  the  au- 
thority of  Waters-Pierce  Oil  Co.  v.  Texas, 
212  U.  8.  112,  118,  53  L.  ed.  431,  434,  29 
Sup.  Ct.  Rep.  227 ;  Deming  v.  Carlisle  Pack- 
ing Co.  226  U.  8.  102,  57  L.  ed.  140,  33 
Sup.  Ct.  Rep.  80;  Overton  v.  Oklahoma, 
235  U.  8.  31,  59  L.  ed.  112,  35  Sup.  Ct.  Rep. 
14. 


Long  Bkll  Luhbei  Co.,  Appellant,  v.  Wal- 

TKB  Moses.    [No.  18.] 
Appeal — final  judgment. 

Appeal  from  the  United  States  Circuit 
[626]  Court  of  Appeals  for  the  Fifth  Cir- 
cuit to  review  a  decree  which  reversed,  with 
instructions  to  sustain  the  demurrer  to  the 
biU,  a  decree  of  the  Circuit  Court  of  the 
United  States  for  the  Western  District  of 
Louisiana  in  favor  of  complainant  in  a 
suit  to  establish  title  to  timber,  and  enjoin 
interference  with  the  cutting  of  such  timber. 

See  same  case  below,  124  C.  C.  A.  185,  206 
Fed.  51. 

Mr.  William  R.  Thurmond  for  appellant. 

Mr.  Elijah  Robinson  for  appellee. 

October  25,  1915.  Per  Curiam:  Dis- 
missed for  want  of  jurisdiction  upon  the 
authonty  of  United  States  v.  Krall,  174 
U.  8.  385,  43  U  ed.  1017,  19  Sup.  Ct.  Rep. 
712;  Macfarland  v.  Brown,  187  U.  8.  239, 
47  L.  ed.  159,  23  Sup.  Ct.  Rep.  105;  Mis- 
souri &  K.  I.  R.  Co.  V.  Olathe,  222  U.  8. 
185,  56  L.  ed.  155,  32  Sup.  Ct  Rep.  46; 
United  States  v.  Beatty,  232  U.  8.  463,  58 
L.  ed.  686,  34  Sup.  Ct  Rep.  392. 


FtBST- National  Baitk  of  Bell  Foubohe, 

8.  Dak.,  Plaintiff  in  Error,  v.  Aoolph  O. 

Ebebhabt  et  al  [No.  155.] 
Error  to  district  court — ^jurisdiction — ^prior 

appeal  to  district  court  of  appeals. 

In  Error  to  the  District  Court  of  the 
United  States  for  the  District  of  Minnesota 
to  review  a  judgment  entered  pursuant  to 
the  mandate  of  the  Circuit  Court  of  Ap- 
peals for  the  Eighth  Circuit,  which,  revers- 

47S 


626-628 


SUPREME  OOURT  OF  THE  UNITED  STATES. 


Oor.  Tbkic, 


ing  the  judgment  below,  remanded  the  same 
for  a  new  trial. 

Messrs.  Norman  T.  Mason  and  James  A. 
George  for  plaintiffs  in  error. 

Mr.  Harrison  L.  Schmitt  for  defendants 
in  error. 

October  25,  1916.  Per  Curiam:  Dis- 
missed for  want  of  jurisdiction  upon  the 
authority  of  Aspen  Min.  &  Smelting  Ck>.  v. 
Billings,  150  U.  S.  31,  37  L.  ed.  986,  14  Sup. 
Ct.  Rep.  4;  Brown  y.  Alton  Water  Co.  222 
U.  S.  325,  56  L.  ed.  221,  82  Sup.  Ct.  Rep. 
156 ;  Union  Trust  Co.  v.  Westhus,  228  U.  S. 
519,  57  L.  ed.  947,  33  Sup.  Ct.  Rep.  593; 
Shapiro  y.  United  States,  235  U.  S.  412,  59 
L.  ed.  291,  35  Sup.  Ct.  Rep.  122. 


JAHSS  DuYAL  et  al..  Plaintiff  in  Error,  v. 

State  or  Louisiana.  [No.  223.] 
Error    to    state    court — frivoloua    Federal 

question. 

In  Error  to  the  Supreme  Court  of  the 
State  of  Louisiana  to  review  a  judgment 
which  affirmed  a  conviction  of  murder  in 
the  District  Court  for  the  Parish  of 
Acadia,  in  that  state. 

See  same  case  below,  135  La.  710,  L.R.A. 
— ,  — ,  65  So.  904. 

Messrs  Edward  N.  Pugh  and  [627]  Philip 
8.  Pugh,  for  plaintiffs  in  error. 

Messrs.  R.  G.  Pleasant  and  Daniel  Wend- 
ling  for  defendant  in  error.* 

October  25,  1915.  Per  Curiam:  Dis- 
missed for  want  of  jurisdiction  upon  the 
authority  of  (1)  Waters-Pierce  Oil  Co.  v. 
Texas,  212  U.  S.  112,  118,  53  L.  ed.  431,  434, 
29  Sup.  Ct.  Rep.  227;  Deming  v.  Carlisle 
Packing  Co.  226  U.  S.  102,  57  L.  ed.  140, 
33  Sup.  Ct.  Rep.  80;  Overton  v.  Oklahoma, 
235  U.  S.  31,  59  L.  ed.  112,  35  Sup.  Ct.  Rep. 
14;  (2)  Northern  P.  R.  Co.  v.  Herbert,  116 
U.  S.  642,  29  L.  ed.  755,  6  Sup.  Ct.  Rep. 
590;  Hayes  v.  Missouri,  120  U.  S.  68,  30  L. 
ed.  578,  7  Sup.  Ct.  Rep.  350;  Howard  v. 
Kentucky,  200  U.  S.  164,  50  L.  ed.  421,  26 
Sup.  Ct.  Rep.  189. 


John  R.  Gbebnlebs,  Plaintiff  in  Error,  v. 

Fro)  L.  Mobbis.  [No.  36.] 
Indian    allotments — restriction    on    aliena- 
tion. 

In  Error  to  the  Supreme  Court  of  the 
State  of  Kansas  to  review  a  judgment  which 
affirmed  a  judgment  of  the  District  Court 
of  Douglas  County,  in  that  state,  in  favor 
of  plaintiff  upon  a  breach  of  warranty  as 
to  title  to  an  Indian  allotment. 

See  same  case  below,  90  Kan.  472,  135 
Pac  569. 
Mr.  C.  A.  Magaw  for  plaintiff  in  error. 
Mr.  Charles  Blood  Smith  for  defendant  in 
error. 
474 


November  1,  1915.  Per  Cvriam:  Judg- 
ment reversed  with  costs,  and  cause  re- 
manded for  further  proceedings  upon  the 
authority  of  Mullen  v.  United  States,  224 
U.  S.  448,  56  L.  ed.  834,  32  Sup.  Ct.  Rep. 
494;  Adkins  v.  Arnold,  235  U.  S.  417,  59  L. 
ed.  294,  35  Sup.  Ct  Rep.  118;  Skelton  v. 
Dill,  235  U.  S.  206,  59  L.  ed.  198,  35  Sup. 
Ct.  Rep.  60. 


Petebbobough     Railboad,     Appellant,     v. 

Boston  &  BCaine  Railboad  et  al     [No. 

29.] 
Appeal — from    district    court    —    Federal 

question. 

Appeal  from  the  District  Court  of  the 
United  States  for  the  District  of  New 
Hampshire  to  review  a  decree  which  refused 
to  enforce  provisions  for  free  transporta- 
tion, contained  in  a  railway  lease. 

Mr.  Henry  A.  Cutter  for  appellant. 

Messrs.  Edgar  J.  Rich  and  Archibald  R 
Tisdale  for  appellees. 

November  1,  1915.  Per  Curiam:  Dis- 
missed for  want  of  jurisdiction  upon  the 
authority  of  Carey  ▼.  Houston  &  T.  C.  R. 
Co.  150  U.  S.  170,  87  L.  ed.  1041,  14  Sap. 
Ct.  Rep.  63;  Cornell  v.  Green,  163  U.  8. 
75,  41  L.  ed.  76,  16  Sup.  Ct.  Rep.  969;  Bm* 
pire  State-Idaho  Min.  A,  Developing  Co.  y. 
Hanley,  205  U.  S.  225,  51  L.  ed.  779,  27 
Sup.  Ct.  Rep.  476;  Childers  v.  McClaughry, 
210  U.  S.  139,  54  L.  ed.  420,  80  Sup.  Ct 
Rep.  370. 


Chables  p.  BowDrrcH  et  al..  Plaintiffs  in 

Error,  v.  Jaokson  Compact  et  al.   [No. 

20.] 
Error  to  state  court — ^Federal  question. 

In  Error  to  the  Superior  Court  of  the 
State  of  New  Hampshire  to  review  a  decree 
dismissing  the  bill  in  a  suit  to  enjoin  a 
sale  of  the  assets  of  a  corporation,  entered 
pursuant  to  the  opinion  of  the  New  Hamp- 
shire Supreme  Court  on  a  case  reserved. 

See  same  case  below,  in  New  Hampshire 
Supreme  Court,  76  N.  H.  361,  L.R.A. — , 
— ,  82  Atl.  1014,  Ann.  Cas.  1913A,  366. 

Mr.  Burton  E.  Eames  for  plaintiffs  in 
error. 

Mr.  Frank  S.  Streeter  for  defendants  in 
error. 

November  1,  1915.  [688]  Per  Curiam: 
Dismissed  for  want  of  jurisdiction  upon  the 
authority  of  F.  G.  Ozley  Stave  Co.  v. 
Butler  County,  166  U.  S.  648,  41  L.  ed. 
1149,.  17  Sup.  Ct.  Rep.  709;  Mailers  v.  Com- 
mercial Loan  &  T.  Co.  216  U.  S.  613,  64  L. 
ed.  638,  30  Sup.  Ct.  Rep.  438;  Applebv  v. 
Buffalo,  221  U.  S.  524,  55  L.  ed.  888,  31  Sup. 
Ct.  Rep.  699;  Cleveland  &  P.  R.  Co.  v.  Cleve- 
land, 235  U.  S.  50,  59  L.  ed.  127,  35  Sap. 
Ct.  Rep.  21. 

%t9  u.  a. 


1915. 


MEMORANDA  CASES. 


628,  620 


GASDnnEB  Invistmext  Compaitt  et  aL^  Ap- 
pellanta,  v.  Jackson  Compaut  et  al.  [No. 
455.] 
Appeal — ^from  circuit  court  of  appeals — Fed- 
eral question. 

Appeal  from  the  United  States  Circuit 
Court  of  Appeals  for  the  First  Circuit  to 
review  a  decree  which,  reversing  a  decree 
of  the  District  Court  of  the  United  States 
for  the  District  of  New  Hampshire,  directed 
the  dismissal  upon  specified  ternu  of  the 
bill  in  a  suit  to  enjoin  the  sale  of  the  as- 
sets of  a  corporation. 

See  same  case  below,  138  C.  C.  A.  266,  217 
Fed.  860. 
Mr.  Burton  E.  E&mes  for  appellanta. 
Mr.  Frank  S.  Streeter  for  appellees. 
November  1,  1015.     Per  Curiam:     Dis- 
missed for  want  of  jurisdiction   upon   the 
authority  of  Bagley  v.  General    Fire    Ex- 
tinguisher Co.  212  U.  8.  477,  58  L.  ed.  605, 
20  Sup.  Ct.  Rep.  341;   Weir  v.  Rountree, 
216  U.  S.  607,  54  L.  ed.  635,  30  Sup.  Ct. 
Rep.  418;  Shulthis  v.  McDougal,  225  U.  S. 
561,  56  L.  ed.  1205,  32  Sup.  Ct.  Rep.  704; 
St.  Anthony's  Church  v.  Pennsylvania  R. 
Co.  237  U.  S.  575,  50  L.  ed.  1110,  35  Sup. 
Ct.  Rep.  720. 


H.  J.  Bbat,  Trustee,  etc.,  et  aL,  Appellants, 

Y.  United  Statbb  Fidelitt  &  Guakaxtt 

CoMPAirr.     [No.  854] 
Appeal — from   circuit   court  of   appeals — 

bankruptcy  case. 

Appeal  from  the  United  States  Circuit 
Court  of  Appeals  for  the  Fourth  Circuit  to 
review  a  decree  which  dismissed  a  petition 
to  superintend  and  revise  proceedings  in 
bankruptcy  in  the  District  Court  for  the 
Northern  District  of  West  Virginia,  and 
affirmed  a  decree  of  that  court,  confirming 
the  report  of  a  referee. 

See  same  case  below,  138  C.  C  A.  660,  218 
Fed.  087. 

Mr.  Philip  W.  Frey  for  appellants. 

Mr.  B.  M.  Ambler  for  appellee. 

November  8,  1015.  Pw  Curiam:  Dis- 
missed for  want  of  jurisdiction  upon  the 
authority  of  Chapman  t.  Bowen,  207  U.  S. 
80,  01,  52  L.  ed.  116,  117,  28  Sup.  Ct  Rep. 
32;  J.  W.  Calnan  Co.  t.  Doherty,  224  U.  S. 
145,  56  L.  ed.  702,  32  Sup.  Ct  Rep.  460; 
Synnott  y.  Tombstone  ConsoL  Mines  Co.  234 
U.  S.  740,  58  L.  ed.  1575,  84  Sup.  Ct.  Rep. 
674.  See  United  States  Fidelity  ft  G.  Co.  y. 
Bray,  225  U.  8.  205,  56  K  ed.  1055,  82  Sup. 
Ct.  Rep.  620. 
•0  Ii.  ed. 


[689]  Laxtha  Eiohkl  et  aL,  Appellant^  y. 

UlflRD    StaTCS    FIDOJTT    k    GUABAHTT 

PplCPANT   [No.  307.] 
Appeal — final  judgment 

Appeal  from  the  United  States  Circuit 
Court  of  Appeals  for  the  Third  Circuit  to 
review  a  decree  which,  reversing  a  decree 
of  the  District  Court  for  the  Western  Dis- 
trict of  Pennsylvania,  directed  the  entry 
of  a  decree  in  acoorduice  with  its  opinion. 

See  same  case  below,  185  C.  C.  A.  478, 
210  Fed.  803. 

Mr.  William  M.  Hall  for  appellants. 

Mr.  B.  M.  Ambler  for  appellee. 

November  8,  1015.  Per  Curiam:  Dis- 
missed for  want  of  jurisdiction  upon  the 
authority  of  United  States  v.  Krall,  174 
U.  S.  385,  43  L.  ed.  1017,  10  Sup.  Ct  Rep. 
712;  German  Nat.  Bank  v.  Speckert,  181 
U.  8.  405,  45  L.  ed.  026,  21  Sup.  Ct  Rep. 
688 ;  United  States  v.  Beatty,  232  U.  8.  463, 
58  L.  ed.  686,  84  Sup.  Ct.  Rep.  802. 


David  C.  Andbbwe  et  al..  Copartners,  etc. 
Appellants,  y.  Habst  V.  Osbobh,  Trustee, 
etc     [Na  57.] 
Appeal — ^review  of  faet#— concurrent  find- 
ings. 

Appeal  from  the  United  States  Circuit 
Court  of  Appeals  for  the  Third  Circuit  to 
review  a  decree  which  afllrmed  an  order  of 
the  District  Court  for  the  District  of  New 
Jersey,  reversing  an  order  of  a  referee  in 
bankruptcy. 

See  same  case  below,  126  C.  C.  A.  06,  200 
Fed.  148. 
Mr.  David  C.  Myers  for  appellants. 
Mr.  Nathan  Bilder  for  appellee. 
November  8,  1015.    Per  Curiam:    Judg- 
ment afllrmed  with  costs  upon  the  authority 
of    First    Nat    Bank    v.    Littlefield,    226 
U.  8.  110,  112,  57  L.  ed.  145,  146,  83  Sup. 
Ct  Rep.  60;  Texas  &  P.  R.  Co.  v.  Railroad 
Commission,  232  U.  8.  338,  58  L.  ed.  630, 
34  Sup.  Ct.  Rep.  438;   Greey    y.    Docken- 
doHT,  231  U.  8.  518,  58  L.  ed.  880,  84  Sup. 
Ct.  Rep.  166. 


Fbank  Zodbow,  Plaintiff  in  Error,  v.  Szatv 

or  WisooNsnr.     [No.  43.] 
Error    to    state    court — frivolous    Federal 

question — state  limitation  of  number  of 

sialoons. 

In  Error  to  the  Supreme  Court  of  the 
State  of  Wisconsin  to  review  a  judgment 
which  aflirmed  a  conviction  in  the  Munic- 
ipal Court  of  Milwaukee  County,  in  that 
state,  for  selling  intoxicating  liquors  with- 
out a  license. 

See  same  case  below,  164  Wis.  661,  148 
K.  W.  608. 

475 


029-^1 


SUPREME  COURT  OF  THE  UNITED  STATEa 


Oor. 


Mr.  David  S.  Rote  for  plaintiff  in  error. 

Messra.  Walter  C.  Owen  and  J.  E.  Meeser- 
■chmidt  for  defendant  in  error. 

November  8,  1015.  Per  Ouriam:  Dis- 
missed for  want  of  jurisdiction  upon  the 
authority  of  Deming  v.  Carlisle  Packing 
Co.  228  U.  8.  102,  105,  57  L.  ed.  140,  143, 
33  Sup.  Ct.  Rep.  80;  Consolidated  Tump. 
Co.  V.  Norfolk  &  O.  V.  R.  Co.  228  U.  S.  606, 
600,  57  L.  ed.  082,  983,  S3  Sup.  Ct.  Rep. 
609;  Parker  v.  McLain,  237  U.  S.  460,  471, 
472,  50  L.  ed.  1051,  1053,  1054,  35  Sup.  Ct. 
Rep.  632. 


[630]  Job  Maboun,  Plaintiff  in  Error,  v. 

State  or  Louisiana.    [No.  45.] 
Error  to  state  court — ^Federal   question — 

how  raised  and  decided— due  process  of 

law. 

In  Error  to  the  Supreme  Court  of  the 
State  of  Louisiana  to  review  a  judgment 
which  affirmed  a  conviction  In  the  City 
Court  of  the  City  of  Shreveport,  in  that 
state,  for  selling  liquors  without  a  license. 

See  same  case  below,  133  La.  1083,  63 
So.  508. 

Messrs.  A.  L.  Alexander  and  Taliaferro 
Alexander  for  plaintiff  in  error. 

Mr.  Ruffin  G.  Pleasant  for  defendant  in 
error. 

November  8,  1015.  Per  Ouriam:  Dis- 
missed for  want  of  jurisdiction  upon  the 
authority  of  (1)  Phoenix  R.  Co.  v.  Landis, 
231  U.  S.  578,  582,  58  L.  ed.  377,  381,  34 
Sup.  Ct.  Rep.  179;  John  v.  Paullin,  231  U. 
*S.  583,  58  L.  ed.  381,  34  Sup.  Ct.  Rep.  178; 
(2)  Hallinger  v.  Davis,  146  U.  S.  314,  36 
L.  ed.  986,  13  Sup.  Ct.  Rep.  105;  Maxwell 
V.  Dow,  176  U.  S.  581,  44  L.  ed.  597,  20 
Sup.  Ct.  Rep.  448,  404;  Jordan  v.  Massa- 
ehusetU,  225  U.  S.  167,  176,  56  L.  ed.  1038, 
1041,  32  Sup.  Ct.  Rep.  651;  Frank  v.  Man- 
gum,  287  U.  S.  300,  340,  50  L.  ed.  069,  985, 
86  Sup.  Ct.  Rep.  582. 


Ex  PABn:  Iir  the  Mattd   or  Clotd  H. 

DuNCAif,  Petitioner.     [No. .] 

Motion    for   Leave   to    File  Petition  for 
Writ  of  Mandamus. 

Mr.  Cloyd  H.  Duncan,  petitioner,  pro  se. 

November  15,  1915.    Denied. 


W.  N.  Skewalteb,  Administrator  of  Robert 
Shewalter,  Deceased,  Plaintiff  in  Error, 

T.  CaBOLINA,  CXJITOHIIBLD,  &  OhIO  RAIL- 
WAY.    [No.  60.] 
Death — action    under    employers'    liability 
act — survival — action  by  father — ^pecuni- 
ary loss. 
In  Error  to  the  Supreme  Court  of  the 

^70 


State  of  Tennessee  to  review  a  judgment 
which  reversed  a  judgment  of  the  Circuit 
Court  of  Sullivan  County,  in  that  state,  in 
favor  of  plaintiff  in  an  action  under  the 
Federal  employers'  liability  act  for  dam- 
ages for  the  death  of  plaintiff's  son. 

See  same  case  below,  128  Tenn.  363» 
L.R.A.1916C,  064,  161  S.  W.  1136,  Ann. 
Cas.  1015C,  605. 

Mr.  Robert  [631]  Burrow  for  plaintiff  in 
error. 

Mr.  J.  Norment  Powell  for  defendant  in 
error. 

November  15,  1015.  Per  Ouriam:  Judg- 
ment affirmed,  with  costs,  upon  the  authori- 
ty of  (1)  Michigan  C.  R.  Co.  v.  Vreeland, 
2C7  U.  S.  50,  57  L.  ed.  417,  33  Sup.  Ct.  Rep. 
102,  Ann.  Cas.  1014C,  176;  American  R. 
Co.  V.  Didricksen,  227  U.  S.  145,  57  L.  ed. 
456,  33  Sup.  Ct.  Rep.  224;  Gulf,  C.  &  S.  F. 
R.  Co.  V.  McGinnis,  228  U.  S.  173,  57  L.  ed. 
785,  33  Sup.  Ct.  Rep.  426,  3  N.  C.  C.  A. 
806;  Garrett  v.  Louisville  &  N.  R.  Co.  236 
U.  S.  308,  50  L.  ed.  242,  35  Sup.  Ct.  Rep. 
32;  St.  Louis,  I.  M.  &  8.  R.  Co  v.  Craft, 
237  U.  S.  648,  50  L.  ed.  1160,  35  Sup.  Ci. 
Rep.  704;  Kansas  City  Southern  R.  Co. 
V.  Leslie,  238  U.  S.  500,  50  L.  ed.  1478,  36 
Sup.  Ct.  Rep.  844;  (2)  Barron  v.  Baltimore, 
7  Pet.  243,  8  L.  ed.  672;  Jack  v.  Elansas* 
100  U.  S.  372,  370,  380,  50  L.  ed.  234,  236, 
26  Sup.  Ct.  Rep.  73,  4  Ann.  Cas.  630;  Brown 
V.  New  Jersey,  175  U.  S.  172,  44  L.  ed.  119, 
20  Sup.  Ct.  Rep.  77 ;  Twining  v.  New  Jersey, 
211  U.  S.  78,  03,  53  L.  ed.  07,  103,  20  Sup. 
Ct  Rep.  14. 


PENNSTLYAinA    RAILBOAD    COMPAlfT    Y.    W. 

F.  Jaoobt  k  Company.     [No.  130.] 
Carriers— duty  to  furnish  cars— damages. 

On  a  Certificate  from  and  Writ  of  Certio- 
rari to  the  United  States  Circuit  Court  of 
Appeals  for  the  Third  Circuit,  bringing  up 
for  review  a  cause  pending  in  that  court 
on  writ  of  error  to  a  judgment  of  the  Dis:* 
trict  Court  for  the  Eastern  District  of  Penn- 
sylvania, enforcing  an  award  of  damages 
made  by  the  Interstate  Commerce  Commis- 
sion because  of  discrimination  in  distribu- 
tion of  coal  cars. 

Messrs.  Francis  I.  Qowen  and  John  G. 
Johnson  for  petitioner. 

Mr.  William  A.  Qla^gow,  Junior,  for  re- 
spondent. 

November  15,  1015.  Judgment  alBrmed* 
with  costs,  by  a  divided  court,  and  eause  re- 
manded to  the  District  Court  of  the  United 
States  for  the  Eastern  District  of  Pennirfl* 
vania. 

ISO  U.  8. 


1919. 


MEMORANDA  CASKa 


631-633 


ToBK  ft  Whitkct  Compaht,  plaintiff  in 
Error,   v.   Nbw   Yobk,  Nkw   Haven,   k 
Habttosd  Railboad  CoMPAirr.    [No.  62.] 
Error  to  state  court — ^Federal  qnestion— de- 
cision on  non-Federal  ground. 
In  Error  to  the  Superior  Court  of  Maeta- 
chueetts  to  review  a  judgment  entered  pur- 
•oaat  to  the  mandate  of  the  Maesachueetts 
Supreme  Judicial  Court  for  the  recovery 
of  an  unpaid   balance  of   freight  charges 
which,  through  the  carrier's  mistake,  had 
not  been  claimed  or  collected  at  the  time 
of  the  delivery  of  the  shipment. 

See  same  case  below,  in  Supreme  Judicial 
Court  of  Massachusetts,  216  Mass.  36,  102 
N.  E.  366. 
Mr.  Amos  L.  Taylor  for  plaintiff  in  error. 
Mr.  J6hn  L.  Hall  for  defendant  in  error. 
November  20,  1016.  Per  Curiam:  Dis- 
missed for  the  want  of  jurisdiction  upon 
the  authority  of  (1)  Lesthe  v.  Thomas, 
207  U.  S.  93,  62  L.  ed.  118,  28  Sup.  Ct.  Rep. 
30;  Tazoo  ft  M.  Valley  R  Co.  v.  Brewer, 
231  U.  S.  246,  249,  68  L.  ed.  204,  206,  34 
Sup.  Ct.  Rep.  90;  Mellon  Co.  v.  McCafferty, 
this  day  decided,  239  U.  &  134,  ante,  181, 
36  Sup.  Ct  Rep.  94;  (2)  Equitable  Life 
Assur.  Soc  V.  Brown,  187  U.  S.  308,  314,  47 
L.  ed.  100,  193,  23  Sup.  Ct  Rep.  123;  Con- 
solidated Turnp.  Co.  v.  Norfollc  ft  0.  V. 
R.  Co.  228  U.  S.  690,  600,  67  L.  ed.  982, 
983,  33  Sup.  Ct  Rep.  609;  Easterling  Lum- 
ber Co.  V.  Pierce,  236  U.  S.  380,  69  L.  ed. 
270,  36  Sup.  Ct.  Rep,  133.  See  Louisville  ft 
N.  R.  Co.  V.  Maxwell,  237  U.  S.  94,  97,  98, 
69  L.  ed.  853,  866,  L.R.A.1915E,  666,  P.  U. 
R.1916C,  300,  36  Sup.  Ct  Rep.  494,  and 
cited. 


(682]  Obobgs  M.  Dienkb  et  al.,  Plaintiffb 

in  Error,  v.  I.  M.  LA2fi  et  al.  [No.  689.] 
Error    to    state    court — frivolous    Federal 

question— validity  of  state  local  option 

law. 

In  Error  to  the  Court  of  Appeals  of  the 
State  of  Kentucky  to  review  a  judgment 
which  affirmed  a  judgment  of  the  Circuit 
Court  of  Mason  County,  in  that  state,  sus- 
taining the  validity  of  a  local  cation  elec- 
tion. 

See  same  case  below,  165  Ky.  396,  176 
8.  W.  1167. 

Messrs.  J.  M.  Collins  and  J.  H.  Hazelrigg 
for  plaintiffs  in  error. 

Mr.  £.  L.  Worthington  for  defendants  in 
error. 

December  (8,  1915.  Per  Curiam:  Dis- 
missed for  want  of  jurisdiction  upon  the 
authority  of:  (1)  Consolidated  Tump.  Co. 
V.  Norfolk  ft  0.  V.  R.  Co.  228  U.  S.  696, 
600,  67  L.  ed.  982,  983,  33  Sup.  Ct  Rep. 
600;  Manhattan  L.  Ins.  Co.  v.  Cohen,  234 
U.  S.  123,  137,  68  L.  ed.  1246,  1254,  34  Sup. 
•0  14.  ed. 


Ct  Rep.  874;  Easterling  Lumber  Co.  v. 
Pierce,  236  U.  S.  380,  59  L.  ed.  279,  35  Sup. 
Ct  Rep.  133;  (2)  Lancaster  v.  Thacker, 
239  U.  S.  625,  ante,  473,  36  Sup.  Ct.  Rep. 
162;  Wallbrecht  v.  Ingram,  239  U.  S.  625, 
ante,  473,  36  Sup.  Ct.  Rep.  162;  (3)  Waters- 
Pierce  Oil  Co.  V.  Texas,  212  U.  S.  112, 
118,  53  L.  ed.  431,  434,  29  Sup.  Ct  Rep. 
227;  Deming  v.  Carlisle  Packing  Co.  220 
U.  S.  102,  57  L.  ed.  140,  33  Sup.  Ct.  Rep. 
80;  Overton  v.  Oklahoma,  235  U.  S.  31,  69 
L.  ed.  112,  36  Sup.  Ct  Rep.  14. 


Halitaz  Tonopah  Miimro  Compaiit,  Plain- 
tiff in  Error,  v.  John  W.  Lawbon.    [No. 
113.] 
Constitutional  law — ^freedom  to  contract-— 
employers'  liability — release  as  defense. 
In  Error  to  the  Supreme  Court  of  the 
State  of  Nevada  to  review  a  judgment  of 
the  District  Court  of  Nye  County,  in  that 
state,  in  favor  of  plaintiff  in  a  personal- 
injury  action. 

See  same  case  below,  39  Nev.  591,  135 
Pac.  611,  138  Pac  261. 

Mr.  Henry  M.  Hoyt,  2d,  for  plaintiff  in 
error.  * 

Mr.  E.  C.  Brandenburg  for  defendant  in 
error. 

December  13,  1915.  Per  Curiam:  Judg- 
ment affirmed  with  costs  upon  the  authority 
of  Chicago,  B.  ft  Q.  R.  Co.  v.  McGuire,  219 
U.  S.  549,  55  L.  ed.  328,  31  Sup.  Ct.  Rep. 
269;  Philadelphia,  B.  ft  W.  R  Co.  v.  Schu- 
bert, 224  U.  S.  603,  66  L.  ed.  Oil,  32  Sup. 
Ct  Rep.  689,  1  N.  G.  C.  A.  892. 


Washington    Dbedoino    ft    Impbovement 

Company,  Plaintiff  in  Error,  v.  Qbobob 

KiNNEAB  and  Angle  Kinnear,  His  Wife; 

John  R.  Kinnear  and  Leta  Kinnear,  His 

Wife,  et  al.     [No.  115.] 
Error  to  state  court — Federal  question. 

In  Error  to  the  Supreme  Court  of  the 
State  of  Washington  to  review  a  judgment 
which  affirmed  a  judgment  of  the  Superior 
Court  of  Thurston  County,  in  that  state, 
dismissing  the  amended  complaint  in  a  suit 
to  vacate  certain  judgments  affecting  the 
title  to  tide  lands. 

See  same  case  below,  63  Wash.  696,  115 
Pac.  1135. 

Mr.  W.  F.  Hays  for  plaintiff  in  error. 

Messrs.  W.  V.  Tanner,  G.  E.  De  Steiguer, 
and  George  B.  Cole  for  defendants  in  error. 

[633]  December  13,  1915.  Per  Curiam: 
Dismissed  for  want  of  jurisdiction  upon  the 
authority  of  Washington  Dredging  ft  Im- 
prov.  Co.  V.  Washington,  231  U.  S.  742,  58 
L.  ed.  463,  34  Sup.  Ct  Rep.  318;  Washing- 
ton Dredging  ft  Improv.  Co.  v.  Washington, 
235  U.  S.  688,  59  L.  ed.  426,  36  Sup.  Ct 
Rep.  204* 

477 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  '. 


Nkw  Yobk  Ckittbal  ft  Huosoir  Biyo  Rail- 
road   CoMFAKT,    FUintiff    in    Error,    *. 
Saudel  p.  McCdrnell.     [No.  119.] 
Error  to  atate  cour^-decUion  on  ooo-Fed- 
•ral  ground. 

In  Error  to  the  Supreme  Court  of  the 
State  of  North  Carolina  to  review  a  judg- 
ment whlcb  affirmed  a  judgment  of  tite 
Superior  Court  of  Moore  Counfy,  in  tliat 
atate,  in  faTor  of  plaintiff  in  a  auit  to  re- 
cover damages  from  the  initial  carrier  of 
an  Interatata  ahipment 

See  aame  eaoe  below,  163  N.  C.  504,  TS 

S.  B.  974. 

Mr.  Walter  H.  Neal  for  plaintiff  In  error. 

Mr.  S.  S.  Oregor;  (or  defendant  in  error. 

December  IS,  1015.     Per  Curiam;     Die- 

miued   for   want  of  juriBdiction    upon   tlie 

authority   of   Euatie  y.   Bollea,   160   U.   S. 

361,  37  L.  ed.  1111,  14  Sup.  a.  Rep.  131; 

Wood  ¥.  ChBiborough,  228  U,   8.  872,  677, 

07  L.  ed.  1018,  1020,  S3  Sup.  Ct.  Rep.  706; 

New  Orleans  &  N.   E.  R.   Co.  t.  National 

Bice  Mill.  Co.  234  U.  S.  80,  B6,  68  L.  ed. 

1223,   1226,  34   Sup.  Ct.  Rep.   726;    Mellon 

Co.  V.  McCaffertj,  239  U.  B.  134,  auto,  181, 

36  Sup.  Ct.  Rep.  34. 

Chaileb  R.  Eoctb,  Plaintiff  in  Error,  v. 

BALTDf(»B  k  Ohio  Raii.boai)  Compakt. 

INo.  307.1 
Error    to    atate    eonrt — frivolous    Federal 

question. 

In  Error  to  tbe  Supreme  Court  of  the 
State  of  Ohio  to  review  a  judgment  which, 
reversing  a  judgment  of  the  Circuit  Court 
of  MVhoDlng  County,  in  that  state,  ordered 
Judgment  for  defendant  in  a  persooal-ln- 
jury  action. 

See  same  ease  below,  88  Ohio  St.  306, 
104  N.  E.  M4,  Ann.  Cas.  1916A,  12S6. 

Mr.  David  F.  Anderson  tor  plaintiff  in 
error. 

Messrs.  George  F.  Arrel,  James  P.  Wil- 
son, and  Union  C.  De  Ford  for  defendant 
in  error. 

December  13,  1016.  Per  Owiam:  Die- 
miised  for  want  of  jurisdiction  upon  the 
authority  of  Wabash  R.  Co.  v.  Hayee,  234 
U.  8.  86,  58  L.  ed.  1226,  34  Sup.  Ct.  Rep. 
729,  B  N.  C.  C.  A.  224. 


Dnnmtt  or  Pbisomb,  nalntifl  In  Error 
and  Appellant,  t.  Codbt  or  Fibot  Ik- 
STAHOi  [634]  <sw  THB  PBOViNOi  or  Ca- 
nrx,  Tkhth  Judicial  Dibtbict.  [No. 
4S8.] 
Appeal — moot  ease. 

In  Error  to,  and  Appeal  from,  the  Su- 
preme Court  of  the  Philippine  Islands,  to 
review  a  judgment  sustaining  the  Jurisdio- 
tlon  of  the  Court  of  Firat  Instanee  of  tbe 


Province  of  Cavite  to  grant  a  atay  of  «m- 
cation  to  convicts  under  sentence  of  death 
which  has  since  t>een  executed. 

Mesera.  S.  T.  Ansel]  and  C.  J.  Gerkin  for 
plaintiff  in  error  and  appellant. 

Hr.  C.  W.  O'Brien  for  defendant  in  error 
and  appellee. 

December  13,  1015.  Per  Curiam:  Dia- 
missed  for  want  of  jurisdiction  upon  th* 
authority  of  Jones  v.  Montague,  104  U.  8. 
147,  48  L.  ed.  013,  24  Sup.  Ct.  Rep.  011; 
UwU  V.  United  SUteg,  216  U.  S.  611,  M 
L.  ed.  637,  30  Sup.  Ct.  Rep.  438;  Biehard- 
aon  V.  UeChesney,  218  U.  8.  487,  H  L.  ed. 
1121,  31  Sup.  Ct.  Bep.  43;  Stearns  v.  Wood. 
236  U.  S.  7S,  50  L.  ed.  475,  S6  Sup.  Ct.  Rep. 


Sadie  A.  Stead,  Executrix,  etc,  et  al..  Ap- 
pellants, V.  Isabella  M.  CuBnas  et  aL 
[No.  132.]  T 

Appeal — from  circuit  court  of  appeals- 
jurisdiction. 

Appeal  from  the  United  State*  Circuit 
Court  of  Appeals  for  the  Ninth  Circuit  to 
review  a  decree  which  affirmed  a  decree  of 
the  Circuit  Court  for  the  Northern  District 
of  California,  sustaining  demurrers  to  and 
dismissing  the  bill  in  a  suit  to  cancel  cer- 
tain deeds  and  vacate  the  probate  ot  a  wilL 
See  same  case  below,  112  C.  C.  A.  463, 
101  Fed.  529,  on  rehearing,  123  C.  C.  A.  507, 
205  Fed.  430. 
Mr.  Horace  W.  Philbrooli  for  appellanta. 
Mr.  Garret  W.  McEnerney  for  appellees. 
December  20,  1015.  .  P«r  Curiam:  Dia- 
missed  for  want  of  jurisdiction  upon  tb* 
authority  of:  (1)  Cosmopolitan  Min.  Co. 
V.  Walsh,  193  U.  S.  460,  48  L.  ed.  749,  24 
Sup.  Ct.  Rep.  48S;  Fsrrell  v.  O'Brien 
(O'Callaghan  v.  O'Brien)  100  U.  8.  80,  SO 
L.  ed.  101,  25  Gup.  Ct.  Rep.  727;  Empire 
State-Idaho  Mln.  t  Developing  Co.  v.  Han- 
iey,  205  U.  8.  226,  235,  236,  61  L.  ed.  779, 
783,  784,  27  Sup.  Ct.  Rep.  476i  (2)  Ar- 
buclile  V.  Blackburn,  101  U.  S.  405,  48  L.  ed. 
239,  24  Sup.  Ct.  Rep.  148;  Hull  v.  Burr, 
234  U.  8.  712,  720,  68  L.  ed.  1657,  ISSl,  34 
Sup.  Ct.  Rep.  802;  0.  &  C  Merriam  Co. 
V.  Syndicate  Pub.  Co.  237  U.  S.  618, 
621,  50  L.  ed.  1148,  1140,  35  Sup.  Ct.  Bep. 
708. 


MoKTiMEB  M.  Elkah,  Plaintiff  in  Error,  t. 

State  or  Mabtlahd.     [No  144.) 
Constitutional  law — equal  protection  of  th* 

laws — state  regulation  of  pay  and  boon 

of  labor  on  public  works. 

In  Error  to  the  Court  of  Appeala  ot  tha 

State  of  Maryland  to  review  a  jndgmant 

which  affirmed  a  eonviction  in  tbe.  Criminal 

s»  n.  R. 


1U15. 


MEMORANDA  CASES. 


634-636 


Court  of  Baltimore  City,  of  violating  the 
law  regulating  the  pay  and  hours  of  labor 
on  public  works. 

See  same  ease  below,  122  Md.  642,  90  Atl. 
183. 

Mr.  Joseph  S.  Goldsnnth  for  plaintiff  in 
trror. 

Mr.  Edgar  Allan  Poe  for  defendant  in  er- 
ror. 

December  20,  1016.  Pw  Curiam:  Judg- 
ment affirmed  with  costs  upon  the  authority 
of  Atkin  T.  Kansas,  101  U.  8.  207,  48  L. 
ed.  148,  24  Sup.  Ct.  Rep.  124;  Heim  t.  Mc- 
Call,  230  [635]  U.  S.  176,  ante,  206,  36 
Sup.  Ct.  R^.'78;  Crane  y.  New  York,  230 
U.  8.  106,  ante,  218,  36  Sup.  Ct.  Rep.  86. 


MiNinBAPOLis,    St.    Paul,   ft    Sault   Sn. 

Marie  Railsoad  Cohpant,  Plaintiff  in 

Error,  t.  Louisk  Alexander,  Adminis- 

tratrix,  etc.  [No.  148.]  "       ^ 

Error    to    state    court — ^frivolous    Federal 

question — requiring  railway  companies  to 

fence  roads. 

In  Error  to  the  Supreme  Court  of  the 
State  of  Wisconsin  to  review  a  judgment 
which  affirmed  a  judgment  of  the  Circuit 
Court  of  Marquette  County,  in  that  state, 
in  favor  of  plaintiff  in  an  action  of  death 
founded  upon  a  violation  of  a  state  statute 
requiring  railway  companies  to  fence  their 
roads. 

See  same  ease  below,  166  Wis.  477, 146  N. 
W.  610. 

Mr.  William  A.  Hayes  for  plaintiff  in 
err<»>. 

Mr.  D.  W.  McNamara  and  Miss  Anna  B. 
Hull  for  defendant  in  error. 

January  10,  1016.  Per  Curiam:  Dis- 
missed for  want  of  jurisdiction  upon  the 
authority  of  (1)  Consolidated  Tump.  Co. 
V.  Norfolk  ft  0,  V.  R.  Co.  228  U.  S.  606, 
600,  67  L.  ed.  082,  083,  33  Sup.  Ct.  Rep. 
600;  Manhattan  L.  Ins.  Co.  v.  Cohen,  234 
U.  S.  123,  137,  68  L.  ed.  1245,  1254,  34  Sup. 
Ct.  Rep.  874;  Easterling  Lumber  Co.  v. 
Pierce,  235  U.  S.  380,  68  L.  ed.  270,  35  Sup. 
Ct.  Rep.  133;  (2)  Missouri  P.  R.  Co.  v. 
Humes,  115  U.  S.  612,  20  L.  ed.  463,  6  Sup. 
Ct.  Rep.  110;  Minneapolis  ft  St.  L.  R.  Co. 
T.  Beckwith,  120  U.  S.  26,  32  L.  ed.  685,  0 
Sup.  Ct.  Rep.  207 ;  Minneapolis  ft  St.  L.  R. 
Co.  T.  Emmons,  140  U.  S.  364,  37  L.  ed. 
760,  13  Sup.  Ct.  Rep.  870;  (3)  Waters- 
Pierce  Oil  Co.  y.  Texas,  212  U.  S.  112,  118, 
63  L.  ed.  431,  434,  20  Sup.  Ct.  Rep.  227; 
Deming  v.  Carlisle  Packing  Co.  226  U.  S. 
102,  67  L.  ed.  140,  33  Sup.  Ct  Rep.  80; 
Ororton  t.  Oklahoma,  236  U.  8.  31,  60  L. 
ed.  112,  35  Sup.  Ct.  Rep.  14. 
•0  Ii.  ed. 


Robert  M.  Pdrcell  et  al..  Plaintiffs  in  Er- 
ror, Y.  Quaker  Realty  Cohpant,  Luc- 
XTED.     [No.  152.] 
Error    to    state    court — frivolous    Federal 
question. 

In  Error  to  the  Supreme  Court  of  the 
State  of  Louisiana  to  review  a  judgment 
which  affirmed  a  judgment  of  the  Civil  Dis- 
trict Court  for  the  Parish  of  Orleans,  in 
that  state,  in  favor  of  plaintiff  in  an  ac- 
tion to  oonfirm  title  to  land  sold  to  the 
state  for  delinquent  taxes. 

See  same  case  below,  134  La.  1022,  64  So. 
804. 

Mr.  E.  Howard  McCaleb  for  plaintiffs  in 
error. 

Mr.  William  Winans  Wall  for  defendants 
in  error. 

January  10,  1016.  Per  Curiam:  Dis- 
missed for  want  of  jurisdiction  upon  the 
authority  of  (1)  Castillo  v.  McConnico, 
168  U.  S.  674,  42  L.  ed.  622,  18  Sup.  Ct. 
Rep.  220;  De  Beam  y.  Safe  Deposit  ft  T. 
Co.  233  U.  S.  24,  34,  58  L.  ed.  833,  837,  34 
Sup.  Ct.  Rep.  684;  McDonald  v.  Oregon 
R.  ft  Nav.  Co.  233  U.  S.  665,  660,  670,  68 
L.  ed.  1145,  1148,  1140,  34  Sup.  Ct.  Rep. 
772;  (2)  Ross  v.  Oregon,  227  U.  S.  150, 
161,  67  L.  ed.  458,  463,  33  Sup.  Ct.  Rep. 
220,  Ann.  Cas.  101 4C,  224;  Moore-Mans- 
field Constr.  Co.  v.  Electrical  Installation 
Co.  234  U.  S.  610,  624,  58  L.  ed.  1503,  1505, 
34  Sup.  Ct.  Rep.  041 ;  Willoughby  v.  [636] 
Chicago,  235  U.  S.  45,  50  L.  ed.  123,  35  Sup. 
Ct.  Rep.  23;  Cleveland  ft  P.  R.  Co.  v.  Cleve- 
land, 236  U.  S.  60,  60  L.  ed.  127,  35  Sup. 
Ct.  Rep.  21. 


Ex  Paris:    Iv  the  Matter  of  Robert  B. 

Whttt,  Petitioner.     [No.  — ,  Orig.] 

Motion  for  leave  to  file  petition  for  Writ 
of  Mandamus. 

Messrs.  Frank  W.  Clancy,  A.  C.  Voorhees, 
and  H.  L.  Bickley  for  petitioner. 

No  appearance  for  respondent. 

January  10,  1016.    Denied. 


Lbonabd  R.  Coates,  Plaintiff  in  Error,  t. 

District  or  Colxticbia.     [No.  156.] 
Appeal — ^from  District  of  Columbia  courts 

—construction  of  Federal  law. 

In  Error  to  the  Court  of  Appeals  of  the 
District  of  Columbia  to  review  a  judgment 
which  afilrmed  a  judgment  of  the  Supreme 
Court  of  the  District,  dismissing  an  action 
to  recover  damages  for  the  negligence  of 
the  defendant's  health  department. 

See  same  case  below,  42  App.  D.  C.  104. 

Mr.  F.  P.  B.  Sands  for  plaintiff  in  error. 

Messrs.  Conrad  H.  Syme  and  Robert  L. 
Williams  for  defendant  in  error. 
I     January  17,  1016.     Per  Curiam:     Dis- 
'  missed  for  want  of  jurisdiction  upon  the 

479 


636-688 


SUPKEMB  COURT  OF  THE  UNITED  STATES. 


Oct.  Tk/m, 


authority  of  American  Security  ft  T.  Co.  t. 
District  of  Columbia,  224  U.  S.  491,  56  L. 
ed.  856,  32  Sup.  Ct.  Rep.  553;  District  of 
Columbia  t.  Philadelphia,  B.  ft  W.  R.  Co. 
232  U.  S.  716,  58  L.  ed.  812,  34  Sup.  Ct. 
Rep.  331;  Washington,  A.  ft  Mt.  V.  R.  Co. 
v.  Downey,  236  U.  S.  100,  59  L.  ed.  533,  35 
Sup.  Ct.  Rep.  406. 


William  B.  THOicpsoir,  Plaintiff  in  Error, 

V.  City  of  St.  Louis.    [No,  157.] 
Appeal — final  judgment. 

In  Error  to  the  Supreme  Court  of  the 
State  of  Missouri  to  review  a  judgment 
which  reversed  a  judgment  of  the  Circuit 
Court  of  the  City  of  St.  Louis,  dismissing 
the  petition  in  condemnation  proceedings, 
and  remanding  the  cause  for  further  pro- 
ceedings. 

See  same  case  below,  257  Mo.  541,  165  S. 
W.  1057. 

Mr.  William  B.  Thompson  for  plaintiff  in 
error. 

Mr.  Truman  P.  Toung  for  defendant  in 
error. 

January  17,  1916.  Per  Cfwriam:  Dis- 
missed for  want  of  jurisdiction  upon  the 
authority  of  Louisiana  Nav.  Co.  v.  Oyster 
Commission,  226  U.  S.  99,  57  L.  ed.  138,  33 
Sup.  Ct.  Rep.  78;  United  States  v.  Beatty, 
232  U.  S.  463,  58  L.  ed.  686,  34  Sup.  Ct. 
Rep.  392;  Pons  v.  Yazoo  ft  M.  Valley  R.  Co. 
232  U.  S.  720,  58  L.  ed.  814,  34  Sup.  Ct. 
Rep.  602. 


[637]  HiLMA  Nelson,  Plaintiff  in  Error,  v. 

RiCHABD  G.  Wood.     [No.  158.] 
Error  to  circuit  court  of  appeals — finality 

of  decision — diverse  citizenship. 

In  Error  to  the  United  States  Circuit 
Court  of  Appeals  for  the  Third  Circuit  to 
review  a  judgment  dismissing  a  writ  of  er- 
ror to  the  District  Court  for  the  Eastern 
District  of  Pennsylvania  in  a  personal-in- 
jury action. 

See  same  case  helow,  126  C.  C.  A.  598, 
210  Fed.  18. 

Mr.  A.  J;  H.  Frank  for  plaintiff  in  error. 

Messrs.  C.  E.  Morgan,  3d,  and  R.  Stuart 
Smith  for 'defendant  in  error. 

January  17,   1916.     Per  Curiam:     Dis- 
missed for  want  of  jurisdiction  upon  the 
authority  of  Bagley  v.  General   Fire  Ex- 
tinguisher Co.  212  U.  S.  477,  53  L.  ed.  605, 
29  Sup.  Ct  Rep.  341;  McCormick  t.  Okla- 
homa City,  236  U.  S.  657,  59  L.  ed.  771, 
35  Sup.  Ct.  Rep.  455;  St.  Anthony  Church  j 
v.  Pennsylvania  R.  Co.  237  U.  S.  575,  59  i 
L.  ed.  1119,  85  Sup.  Ct.  Rep.  729;  G.  ft  C.  I 
Merriam  Co.  y.  Syndicate  Pub.  Co.  237  U.  I 
8.  618,  59  L.  ed.  ;1148,  35  Sup.  Ct  Rep.  708. ' 
4S0 


Vandalia  RAn.BOAD  Company,  Plaintiff  in 

Error,  v.  Chablss  STiL¥rKLL.  [No.  172.] 
Constitutional  law — equal  protection  of  the 

laws — due    process    of    law — ^workmen's 

compensation  act. 

In  Error  to  the  Supreme  Court  of  the 
State  of  Indiana  to  review  a  judgment 
which  affirmed  a  judgment  of  the  Circuit 
Court  of  Morgan  County,  in  that  state,  in 
favor  of  plaintiff  in  a  personal-injury  ac- 
tion. 

See  same  case  below,  181  Ind.  267,  104 
N.  £.  289,  5  N.  C.  C.  A.  483. 

Mr.  Samuel  0.  Pickens  for  plaintiff  In 
error. 

'    Mr.  Wymond  J.  Beckett  for  defendant  in 
error. 

January  17,  1916.  Per  Curiam:  Judg- 
ment affirmed  with  costs  upon  the  authority 
of  Jeffrey  Mfg.  Co.  v.  Blagg,  235  U.  S.  57]» 
59  L.  ed.  364,  35  Sup.  Ct  Rep.  167,  7  N.  a 
C.  A.  570. 


RobiAt  Kitchens,  Appellant,  t.  J.  C.  Ham- 
ilton, Sheriff,  etc.     [No.  672.] 
Habeas  corpus — Federal   interference  with 
state  administration  of  criminal  law. 
Appeal  from  the  District  Court  of  the 
United  States  for  the  Southern  District  of 
Qeorgia  to  review  a  decree  denying  a  peti- 
tion for  a  writ  of  habeas  corpus  on  bdudf 
of  a  person  in  custody  under  a  conviction  of 
crime  in  a  court  of  that  state. 
Mr.  John  R.  Cooper  for  appellant 
Mr.  Clifford  Walker  for  appellee. 
January  17,  1916.    Per  Curiam:    Judg- 
ment affirmed  with  costs  upon  the  authoritj 
of  Andrews  v.  Swartz,  156  U.  S.  272,  39  L. 
ed.  422,  15  Sup.  Ct.  Rep.  389;   Frank  y. 
Mangum,  237  U.  S.  309,  59  L.  ed.  969,  35 
Sup.  Ct.  Rep.  582. 


Frank  R.  Shattuok,  Trustee,  ete.,  et  aL, 

Appellants,  v.  Titlk  Quaeantt  k  Sitbbtt 

COHPANT.     [No.  729.] 
Appeal — ^from   circuit   court   of   appeal*-* 

bankruptcy  case. 

[638]  Appeal  from  the  United  States 
Circuit  Court  of  Appeals  for  the  Third  Cir- 
cuit to  review  a  decree  which  reversed  a  de- 
cree of  the  District  Court  for  the  Eastern 
District  of  Pennsylvania,  allowing  or  dis- 
allowing certain  claims  against  a  bankrupt 
estate,  and  ordered  the  reinstatement  of  the 
orders  of  the  referee. 

See  same  case  below,  140  0.  0.  A.  87,  224 
Fed.  401. 

Mr.  Walter  Lee  Sheppard  for  i^pellants. 

Mr.  Frank  Rogers  Donahue  for  appsUee. 

January  17,'  1916.  Per  Curiam:  Dis- 
missed for  want  of  Jurisdiction  upon  the  au- 
thority of  act  of  Congress  of  January  28, 
1915.  See  Central  Trust  Co.  t.  Lneders, 
239  U.  a  11,  ante,  119,  36  Sup.  Ct  Rep.  1. 

%t9  V.  B. 


1916. 


MEMORANDA  CASES. 


688-640 


L.   Sninm   and   B.    Frank,   Individually, 

etc,,  et  al.,  Petitioners,  v.  T.  8.  Faulk  k 

CoHPANT.     [Nob.  658  and  550.] 

Petition  for  Writs  of  Certiorari   to   the 

Cnited  States  Circuit  Court  of  Appeals  for 

the  Fifth  Circuit. 

See  same  case  below,  137  C.  C.  A.  699, 
222  Fed.  01. 

Messrs.  Leon   Weil  and   Horace  String- 
fellow  for  petitioners. 

Messrs.  W.  A.  Blount,  A.  C.  Blount,  and 
F.  B.  Carter  for  respondent. 
October  18,  1015.    Denied. 


Trinftt  Gold  Dredgino  &  Htdraulio  Com- 
pany, Petitioner,  t.  Angele  Beauoby,  as 
Executrix,  etc.     [No:  582.] 
Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Ninth  Circuit. 

See  same  case  below,  139  C.  C.  A.  269, 
223  Fed.  739. 

Messrs.  Edward  J.  McCutchen,  A.  Craw- 
ford Greene,  Alex.  Britton,  Evans  Browne, 
and  F.  W.  Clements  for  petitioner. 

Messrs.    Thomas    B.    Dozier    and    F.    S. 
Brittain  for  respondent. 
October  18,  1015.    Denied. 


RoBEBT  H.  MoNTGOMEBY,  ss  Trustee,  etc.. 

Petitioner,  v.  Bottlebs  Seal  Company. 

[No.  594.] 

[639]  Petition  for  a  Writ  of  Certiorari 
to  the  United  States  Circuit  Court  of  Ap- 
peals for  the  Second  Circuit. 

See  same  case  below,  140  C.  C.  A.  200, 
224  Fed.  492. 

Mr.  Scldcn  Bacon  for  petitioner. 

Mr.  Alfred  D.  Lind  for  respondent. 

October  18,  1015.     Denied. 


City  of  New  Obt.eans  et  al..  Petitioners,  T. 

PENif  Bbidoe  Company.    [No.  626.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit. 

See  same  case  below,  138  C.  C.  A.  101, 
222  Fed.  737. 

Messrs.  I.  D.  Moore  and  Percy  S.  Bene- 
dict for  petitioners. 

Messrs.  R.  E.  Milling  and  William  Grant 
for  respondent. 

October  18,  1015.    Denied. 
«0  Ij.  ed. 


Ida  R.  Rqbebts  et  aL,  Petitioners,  y.  Myba 

J.  ROBBBTS.     [No.  686.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit. 

See  same  case  below,  138  C.  C.  A.  102, 
223  Fed.  775. 

Messrs.  M.  F.  Watts  and  William  R. 
Gentry  for  petitioners. 

No  counsel  appeared  for  respondent. 

October  18,  1015.    Denied. 


JoHir  A.  Lewis,  as  Executor,  etc.,  et  al., 

Petitioners,  v.  William  B.  Holmes  et  al. 

[Nos.  636  and  637,] 

Petition  for  WriU  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Seventh  Circuit. 

See  same  case  below,  140  C.  C  A.  8,  224 
Fed.  410. 

Messrs.  Jackson  H.  Ralston  and  Morton 
S.  Cressy  for  petitioners. 

Messrs.  John  P.  Wilson,  Eli  B.  Felsen- 
thal,  Nathan  G.  Moore,  William  B.  Mc- 
ilvaine  for  respondents. 

October  18,  1015.    Denied. 


Miens    Wilokbns,    Petitioner,  r.    Alwinb 

S.  Wilckens.    [No.  640.] 

Petition  for  a  Writ  of  [640]  Certiorari 
to  the  United  States  Circuit  Court  of  Ap- 
peals for  the  Eighth  Circuit. 

See  same  case  below,  133  C.  C.  A.  202, 
217  Fed.  208. 

Mr.  William  J.  Courtright  for  petitioner. 

Mr.  C.  S.  Montgomery  for  respondent. 

October  18,  1015.    Draied. 


LiLUB  W.  Reed,  Petitioner,  t.  Baltimobb 
6l  Ohio  Railboad  Company.  [No.  642.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Sixth  Circuit. 

See  same  case  below,  139  C.  C.  A.  192, 

223  Fed.  689,  10  N.  C.  C.  A.  107. 
Mr.  Charles  W.  Baker  for  petitioner. 
Messrs.  Judson  Harmon,  Edward  Colston, 

George  Hoadly,  and  A.  W.  Goldsmith  for 

respondent. 
October  18,  1915.    Denied. 


Chables   G.    Gitth,    Petitioner,   y.   Guth 
Chocolate  Company.     [No.  647.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Fourth  Circuit. 

See  same  case  below,  140  C.  C.  A.  410, 

224  Fed.  032. 
Messrs.   Charles  F.  Harl^  and  George 

W.  Lindsay  for  petitioner. 
Mr.  Fredericlc  L.  Emery  for  respondent. 
October  18,  1915.    Denied. 
81  4f- 


640-648 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Iknc, 


CHABLB8  S.  HnrcHMAN,  Petitioner,  v.  Coir- 

BOLIDATED    ABIZONA   SMXLTINO    COMPANY. 

(No.  652.] 

Petition  for  &  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  First  Circuit 

See  same  case  below,  129  0.  0.  A.  267, 
212  Fed.  81S. 

Mr.  Charles  H.  Burr  for  petitioner. 

Mr.  J.  Markbsm  Marshall  for  respondent. 

October  18,  1915.    Denied. 


EoBKBT  Whititet,  Petitioner,  v.  New  Yobk 

SOArFOLOING  COMPAKT.      [No.   661.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit. 

See  same  case  below,  140  C.  C.  A.  138, 
224  Fed.  452.    . 

Messrs.  James  A.  [641]  Carr,  Wallace  R. 
Lane,  Edwin  S.  Clarkson,  and  Walter  A. 
Johnston  for  petitioner. 

Mr.  Paul  Bakewell  for  respondent. 

October  18,  1915.     Denied. 


American  Rotabt  Valve  Company,  Peti- 
tioner,   V.    ALBEBT    £.    MOOBHEAD.       [No. 
662.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Seventh  Circuit. 

See  same  case  below,  139  C.  C.  A.  662, 

224  Fed.  1019. 
Messrs.  W.  Clyde  Jones  and  John  Ridout 

for  petitioner. 
Mr.  James  W.  Noel  for  respondent. 
October  18,  1915.     Denied. 


Hamilton   Tbust   Company   et   al.,   Peti- 
tioners, V.  John  L.  Bisheb,  Jb.,  etc.    [No. 
621.] 
Petition    for    Writs    of   Mandsmus   and 

Certiorari    to    the    United    States    Circuit 

Court  of  Appeals  for  the  Ninth  Circuit. 
See  same  case  below,  139  C.  C.  A.  42,  223 

Fed.  494. 
Mr.  Emmett  Callahan  for  petitioners. 
Messrs.  William  P.  Richardson  and  Will 

R.  King  for  respondent. 
October  18,  1915.    Denied. 


United  States  ex  bel.  State  of  Louisi- 
ana, Petitioner,  v.  Hon.  Aleck  Boabman, 
Judge,  etc.    [No.  667.] 
Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit. 

Messrs.    Ruffin   G.   Pleasant  and   Daniel 
Wendling  for  petitioner. 
i     Messrs.   Edgar  H.   Farrar,  Henry   Bern- 
stein, and  Willard  F.  Keeney  for  respond- 
ent. 
'     October  25,  1915.    Granted. 


W.  F.  JncHSBSON,  as  Assessor,  etc^  et  aU 
Petitioner,   v.   United   States   kz   wmu 
Fall  City  CoNBTBucnoN  Co.    [No.  612.] 
Petition  for  a  Writ  of  Certiorari  to  tlio 
United  SUtes  Circuit  Court  [64S]  of  Ap- 
peals for  the  Eighth  Circuit. 

See  same  case  below,  138  C.  C.  A.  85,  222 
Fed.  489. 
Mr.  C.  F.  Greenlee  for  petitioner. 
No  counsel  appeared  for  respondent. 
October  25,  1015.    Denied. 


Vandaua  Raiuboad  Company,  Petitioner,. 

V.  United  States.     [No.  641.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Seventh  Circuit. 

See  same  case  below,  141  C.  C.  A.  469» 
226  Fed.  713. 

Messrs.  John  G.  Williams,  Thomas  W. 
White,  Lindorf  0.  Wliitnel,  and  Samuel  W. 
Fordyce,  Jr.,  for  petitioner. 

Mr.  G.  Carroll  Todd,  Assistant  to  the 
Attorney  General,  for  respondent. 

October  25,  1915.    Denied. 


National  Bank  or  Commebce  or  St.  Louis,, 

Petitioner,  v.  £.  B.  Allcn,  United  States 

Collector,  etc.    [No.  003.] 

Petition  for  a  Writ  of  (.  ertiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit. 

See  same  case  below,  139  C.  C.  A.  20, 
223  Fed.  472. 

Messrs.  A.  C.  Stewart,  T.  Taylor  Bryan, 
and  George  II.  Williams  for  petitioner. 

No  counsel  appeared  for  respondent. 

October  25,  1915.    Denied. 


Edmund  W.  Mudgb  et  al..  Petitioners,  t. 

Black,  Suebidan,  &  Wilson  et  al.     [No. 

605.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit. 

See  same  case  below,  140  C.  C.  A.  397, 
224  Fed.  919. 

Messrs.  Frank  T.  Gladney  and  Frank  J. 
Hogan  for  petitioners. 

No  counsel  appeared  for  respondents. 

October  25,  1915.    Denied. 


MoRBis  L.  Bettman,  Petitioner,  v.  United 

States.    [No.  009.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Sixth  Circuit. 

See  same  case  below,  140  C.  C.  A.  265» 
224  Fed.  810. 

Mr.  Frank  F.  Dinsmore  for  [643]  peti- 
tioner. 

Mr.  Solicitor  General  Davis  for  respond- 
ent. 

October  25,  1915.    Denied. 

SS9  U.  8. 


1015. 


MEMORANDA  CASES. 


•43-64ft 


GcoBQB  L.  CoLBUSN  et  al.,  Petitioners,  ▼. 

UiriTED  States.    [No.  671.] 

Petition  for  a  Writ  of  Certiorari  to  tbe 
United  States  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit. 

See  same  case  below,  139  C.  C.  A.  186, 
223  Fed.  600. 

Mr.  Chester  H.  Krum  for  petitioners. 

Mr.  Solicitor  General  Davis  and  Mr. 
Assistant  Attorney  General  Wallace  for 
respondent. 

October  25,  1915.    Denied. 


I  Mabt  M.  Hnx,  Executrix,  etc.,  et  al.,  Psti*^ 

tioners,  v.  Jambs  H.  Lovkwbll,  etc.,  et 

al.    [No.  668.1 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Sixth  Circuit. 

See  same  case  below,  133  C.  C.  A.  449,. 
217  Fed.  689. 

Mr.  Caruthers  Ewing  for  petitioners. 

Messrs.  W.  J.  Lamb,  W.  M.  Randolph,  and 
Wassell  Randolph  for  respondents. 

November  8,  1915.    Denied. 


AaniuB  C.  Brady,  Petitioner,  v.  Mabtin 

E.  Kerx.     [No.  545.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Third  Circuit. 

See  same  case  below,  138  C.  C.  A.  299, 
222  Fed.  873. 

Mr.  E.  Spencer  Miller  for  petitioner. 

Mr.  Owen  J.  Roberts  for  respondent. 

November  1,  1915.    Denied. 


Lbonabd  Cboil  Pabkeb  et  al.,  Petitioners, 
▼.  Barbara  Parker.     [No.  675.] 
Petition  for  &  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Fifth  Circuit 

See  same  case  below,.  137  C.  C.  A.  626, 

222  Fed.  186. 

Messrs.  Theodore  Mack    and    Gaines    B. 

Turner  for  petitioners. 

Messrs.    F.    M.    Etheridge    and    J.    M. 

McCormick  for  respondent. 
November  1,  1915.    Denied. 


Gerard  B.  Townsbnd  et  al.,  Petitioners,  t. 

Geobgia  Southbbn  ft  Florida  Railway 

Company  et  aL    [No.  678.] 

Petition  for  &  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit. 

See  same  case  below,  133  C.  C.  C  657, 
218  Fed.  55. 

Messrs.  Lctuis  Marshall,  3larion  [644] 
Erwin,  and  Joseph  Fried  for  petitioners. 

Messrs.  J.  Ellsworth  Hall  and  Alexander 
C.  King  for  respondents. 

November  1,  1915.    Denied. 


Caicbbia    Ibon    Company,     Petitioner,     T. 

Cabnbgie  Steel  Company  (Ltd.).    [No. 

561.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Third  Circuit. 

See  same  case  below,  140  C.  C.  A.  437, 
224  Fed.  947. 

Messrs.  Francis  T.  Chambers  and  James 
I.  Kay  for  petitioner. 

Messrs.  Charles  C.  Linthicum  and  David 
A.  Reed  for  respondent. 

November  8,  1915.    Denied** 
•6  li.  ed. 


LnxY  BuscH  et  al.,    etc.    Petitioners,   t. 
Stbombebg-Cablsoit    Telephonb  Maitu- 

FAOTUBINO  COMFANT.     [No.  686.] 

Petition  for  a  Writ  of  Certiorari  to  ths 
United  States  Circuit  Court  of  AppeiJs  for 
the  Eighth  Circuit. 

See  same  case  below,  141  C.  C.  A.  180» 
226  Fed.  200. 

Joseph  H.  Zumbalen  for  petitioners. 

Messrs.  Warwick  M.  Hough  and  Walter 
H.  Saunders  for  respondent. 

November  15,  1915.    Denied. 


Babbeb  Asphalt  Pavtno  Company,  Peti- 
tioner, V.  City  of  St.  Paul.    [No.  691.] 
Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit. 

See  same  case  below,  138  C.  C.  A.  558» 
224  Fed.  842. 

Mr.  [645]  Morris  M.  Townlej  for  peti- 
tioner. 
Mr.  Thomas  D.  O'Brien  for  respondent. 
November  15,  1915.    Denied. 


Atchison,  Topbka,  &  Santa  Fb  Railway 

Company,  Petitioner,  v.  Unitd  Statbs. 

[No.  674.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Ninth  Circuit. 

Messrs.  Robert  Dunlap,  E.  W.  Camp» 
Paul  Burks,  Alexander  Britton,  and  Eviina 
Browne  for  petitioner. 

No  counsel  appeared  for  respondent. 

November  29,  1915.     Granted. 


Fbbd  yon  Battmbaoh,  Collector,  etc.  Pe- 
titioner, V.  Sabgent  Land  Company  [No. 
707];  Feed  yon  Battmbach,  Collector^ 
etc..  Petitioner,  y.  StnroN  Land  Com- 
pany [No.  708];  and  Fbed  yon  Baum- 
baoh.  Collector,  etc..  Petitioner,  v.  Keab- 
SABQB  Land  Company  [No.  709]. 
Petition  for  Writs  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Eighth  Circuit. 
The  Attorney  General  and  the  Solicitor 

General  for  petitioner. 
No  counsel  appeared  for  respondents. 
November  29,  1915.    Granted. 

4$' 


646-048 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbik, 


Otoman  Zab  Adusst  Hanish,  Petitioner, 
Y.  UNiraD  Statbb.     [No.  677.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Serenth  Circuit. 
See  Mune  case  below»  227  Fed.  584. 
Mr.  James  R.  Ward  for  petitioner. 
No  counsel  appeared  for  respondent. 
November  29,  1015.    Denied. 


Don  a.  Moun  Day  and  L.  D.  Moun  Day, 

Petitioners,    v.    United    States.      [No. 

602.] 

[646]  Petition  for  a  Writ  of  Certiorari 
to  the  United  States  Circuit  Court  of  Ap- 
peals for  the  Eighth  Circuit. 

See  same  case  below,  140  C.  C.  A.  03,  225 
Fed.  065. 

Mr.  Charles  Blood  Smith  and  Mr.  Chapin 
Brown  for  petitioners. 

The  Solicitor  General  and  Mr.  Assistant 
Attorney  General  Wallace  for  respondent. 

November  29,  1915.    Denied. 


Wbbsteb  Balunqeb,  Petitioner,  v.   West 
Pdbubhino  Company.     [No.  704.] 
Petition  for  a  Writ  of  Certiorari  to  the 
Court  of  Appeals  of  the  District  ef  Colum- 
bia. 

See  same  case  below,  44  App.  D.  C.  49. 
Mr.  Webster  Ballinger  for  petitioner. 
Mr.  H.  Winship  Wheatley  for  respondent. 
November  29,  1915.    Denied* 


E.  I.  Da  Pont  db  Nkicoubs  Powdeb  Com- 
pany et  al.,  Petitioners,  v.  Waltib  E. 
Mabland  et  al.    [No.  581.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the.  Third  Circuit. 
Messrs.  Edwin  J.  Prindle  and  Warren  H. 

Small  for  petitioners. 

No  appearance  for  respondents. 
December  6,  1915.    Granted. 


S.  S.  White  Dental  Manufactttbino  Com- 
pany, Petitioner,  v.  Oscab  H.  Pikpeb,  et 
al.    [No.  718.] 
Petition  for  a  'Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Seventh  Circuit. 

See  same  case  below,  228  Fed.  30. 
Messrs.    Henry    N.    Paul,    Jr.,    Jos.    C. 

Fraley,  and  Edward  Rector  for  petitioner. 
Mr.  Charles  A.  Brown  for  respondents. 
December  6,  1915.    Granted. 

4S4 


Thompson  &  Ford  Lumbeb  Company,  Peti- 
tioner, V.  Charles  Dillingham,  Receiver, 
etc.,  et  al.     [No.  684.] 
Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  [647]  Fifth  Circuit. 

See  same  case  below,  139  C.  C.  A.  376, 
223  Fed.  1000. 

Messrs.  H.  M.  Garwood  and  William  A. 
Vinson  for  petitioner. 

Mr.   Thomas  M.   Kennerly   for   respond- 
ents. 
December  6,  1915.    Denied* 


Marion   W.   Rose,   Petitioner,   y.   United 

States.    [No.  723.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit. 

See  same  case  below,  227  Fed.  357. 

Messrs.  George  X.  McLanahan  and  James 
T.  Neville  for  petitioner. 

Mr.  Solicitor  General  Davis  and  Mr.  As- 
sistant Attorney  General  Wallace  for  re- 
spondent. 

December  6,  1915.    Denied. 


Charles  Edward  Grelle  et  al..  Petition- 
ers, V.  City  of  Eugene,  Oregon,  et  aL 
[No.  724.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Ninth  Circuit. 

See  same  case  below,  137  C.  C.  A.  18,  221 

Fed.  68. 
Mr.  T.  J.  Geisler  for  petitioners. 
Mr.  Martin  L.  Pipes  for  respondents. 
December  6,  1915.    Denied. 


Hugh  McCurdt  Eaton,  Administrator,  etc., 

Petitioner,   v.   County   or  Shiawassee. 

[No.  784.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Sixth  Circuit. 

See  same  case  below,  134  C.  C.  A.  316, 
218  Fed.  588. 

Mr.  Bernard  B.  Selling  for  petitioner. 

Mr.  Harrison  Geer  for  respondent. 

December  13,  1915.    Denied. 


Rook  Spring  Distilling  Company  et  aL, 

•Petitioners,  v.  W.  A.  Gaines  &  Company. 

[No.  747.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Sixth  Circuit. 

Messrs.  William  T.  Ellis  and  [648]  Luth- 
er  Ely  Smith  for  petitioners. 

Messrs.  James  L.  Hopkins,  Daniel  W. 
Lindsey,  and  Edmund  F.  Trabue  for  re* 
spondent. 

December  20,  1915.    Granted. 

289  U.  8. 


1915. 


MEMORANDA  CASES. 


e4&-«50 


St.  Louis  Union  Tbust  Compant,  Petition- 
er, v.  Mabt  E.  Mellon  et  al.  [No.  735.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Eighth  Circuit. 

See  same  case  below,  140  C.  C.  A.  567, 

225  Fed.  698. 
Mr.  W.  F.  Wilson  for  petitioner. 
No  counsel  appeared  for  respondents. 
December  20,  1915.    Denied. 


Dan  a.  Wabd  et  aL,  Petitioners,  v.  Thomas 
W.  Mobqan,  Warden,  etc.     [No.  744.] 
Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit.  ^ 

See  same  case  below,  140  C.  C.  A.  238, 
224  Fed.  698. 
Mr.  Edwin  A.  Krauthoff  for  petitioners. 
Mr.  Solicitor  General  Davis  and  Mr.  As- 
sistant Attorney   General  Wallace  for  re- 
spondent. 
December  20,  1915.    Denied* 


National  Bank  or  Commcbcb  in  St.  Louis, 

Petitioner,  t.  Equitable  Tbust  Compant 

OF  Nkw  Yomk.    [No.  751.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit. 

See  same  case  below,  227  Fed.  526. 

Mr.  George  L.  Edwards  for  petitioner. 

Messrs.  Charles  S.  Rowland,  Frederick 
N.  Judson,  and  John  F.  Green  for  respond- 
ent. 

December  20,  1915. 


Wesisbn  Glass   Company,  Petitioner,  v. 

ScHMEBTZ  Wns  Glass  Compant  et  al. 

[No.  752.] 

Petition  for  &  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Seventh  Circuit. 

See  same  case  below,  141  C.  C.  A.  486, 
226  Fed.  730. 

Messrs.  Albert  H.  Graves  and  Louis 
[640]  Quarles  for  petitioner. 

Messrs.  Thomas  B.  Kerr,  Drurj  W.  Coop- 
er, and  Arthur  J.  Baldwin  for  respondents. 

December  20,  1915.    Denied. 


Abdciombib  k  FiTCH  Company  et  al..  Pe- 
titioners, V.  Fbedebick  E.  Baldwin  et  aL 
[No.  767.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Second  Circuit. 
Messrs.  James  R.  OfBeld  and  Charles  K. 

Offield  for  petitioners. 

Ko  appearance  for  respondents. 
January  10,  1916.    Granted. 

•0  L.  ed. 


Chot  Gum,  etc.,  Petitioner,  v.  Samuel  W. 

Backus,   Conmiissioner,  etc.    [No.  749.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Ninth  Circuit. 

See  same  case  below,  139  C.  C.  A.  35,  223 
Fed.  487. 

Mr.  Corry  M.  Stadden  for  petitioner. 

The  Solicitor  G^eral  and  Assistant  At- 
torney General  Wallace  for  respondent. 

January  10,  1916.    Denied. 


John  M.  Bubsouqhs  et  aL,  Petitioners,  t. 

Flobsncs  L.  Chambebs.    [No.  755.] 

Petition  for  a  Writ  of  Certiorari  to  the 
Court  of  Appeals  of  the  District  of  Co- 
lumbia. 

See  same  case  below,  44  App.  D.  C.  169. 

Messrs.  B.  F.  Leightou  and  Wharton  £. 
Lester  for  petitioners. 

Messrs.  George  E.  Sullivan  and  Walter  C. 
English  for  respondent. 

January  10,  1916.    Denied. 


Sangamon  Loan  ft  Tbust  Compant,  Trus- 
tee, etc..  Petitioner,  v.  United  Shoe  Ma- 
CHINEBT  Compant.    [No.  765.] 
Petition  for  &  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Seventh  Circuit. 

See  same  case  below,  227  Fed.  401. 
Messrs.   Henry   Lyman   Child   and   Otis 

[650]  Scott  Humphrey  for  petitioner. 
No  counsel  appeared  for  respondent. 
January  10,  1916.    Denied. 


San  Antonio  ft  Aiansas  Pass  Railwat 
Compant,  Petitioner,  v.  Streets  West- 
EUf  Stable  Cas  Compant.  [No.  770.} 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Fifth  Circuit. 
Messrs.  George  Thompson  and  J.  H.  Bar* 

wise,  Jr.  for  petitioner. 
Messrs.  Levy  Mayer  and  Carl  Meyer  for 

respondent. 
January  10,  1916.    Denied. 


Wells  Fabqo  ft  Compant,  Petiticmer,  v. 

Matob  and  Aldebmen  or  Jebset  Citt. 

[No.  792.] 

Petition  for  &  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Third  Circuit. 

See  same  case  below,  135  C.  C.  A.  371» 
219  Fed.  699. 

Mr.  Chas.  W.  Stockton  for  petitioner. 

Mr.  John  Bentley  for  respondents. 

January  17,  1916.    Denied. 

4S5 


«50-662 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


Thomas  W.  McComb,  Plaintiff  in  Error,  t. 

CkXMMONWEALTH  OF  PENNBTLVAITTA.     [No. 

2.1 

In  Error  to  the  Supreme  Court  of  the 
State  of  Pennsylvania. 

See  same  case  below,  in  Superior  Court 
of  Pennsylvania,  30  Pa.  Super.  Ct.  411,  in 
Supreme  Court  of  Pennsylvania,  227  Pa. 
877,  76  Atl.  100. 

Mr.  John  G.  Johnson  for  plaintiff  in  error. 

Messrs.  William  M.  Hargest  and  Lyman 
D.  Gilbert  for  defendant  in  error. 

October  12,  1916.  Dismissed,  with  costs, 
on  motion  of  co\msel  for  the  plaintiff  in 
error. 


UNioif  Pacoio  Railboad  Company,  Plain- 
tiff in  Error,  v.  Babboba  Zitnik,  Ad- 
ministratrix, etc.     [No.  151.] 
[651]  in  Error  to  the  Supreme  Court  of 
the  State  of  Nebraska. 

See  same  case  below,  95  Neb.  152,  145 
N.  W.  344. 
Mr.  N.  H.  Loomis  for  plaintiff  in  error. 
Messrs.   Constantine  J.   Smyth   and  Ed- 
ward J.  Smith  for  defendant  in  error. 

October  12,  1915.  Dismissed,  with  costs, 
on  motion  of  counsel  for  the  plaintiff  in  er- 
ror. 


iLLiNoia     Centbal    Railboad    Compant, 

Plaintiff  in  Error,  v.  Abthub  Slaughteb. 

[No.  195.] 

In  Error  to  the  Supreme  Court  of  the 
State  of  Minnesota. 

See  same  case  below,  first  appeal,  125 
Minn.  96,  145  N.  W.  790,  second  appeal, 
125  Minn.  532,  147  N.  W.  284. 

Messrs.  Pierce  Butler,  Blewett  Lee,  and 
W.  S.  Horton  for  plaintiff  in  error. 

Mr.  Samuel  A.  Anderson  for  defendant  in 
error. 

October  12,  1915.  Dismissed  per  stipu- 
lation. 


Railway  Tbansfo  CoMPAmr  of  the  Citt 

OF  Minneapolis,  Plaintiff   in   Error;   v. 

Joseph  La  Mebe.    [No.  202.] 

In  Error  to  the  Supreme  Court  of  the 
State  of  Minnesota. 

Messrs.  William  H.  Bremner  and  F.  M. 
Miner  for  plaintiff  in  error. 

Mr.  Samuel  A.  Anderson  for  defendant  in 
error. 

October  12,  1915.     Dismissed  per  stipu- 
lation. 
48« 


SoTTTHEBN  Railwat  Compant,  Plaintiff  in 
Error,  t.  A.  B.  Bbamlett.    [No.  255.] 
In  Error  to  the  Supreme  Court  of  the 

State  of  South  Carolina. 
Mr.  L.  E.  Jeffries  for  plaintiff  in  «rror. 
No   counsel   appeared   for   defendant    in 

error. 
October  12,  1915.    Dismissed,  with  costs, 

on  motion  of  counsel  for  the  plaintiff  in 

error. 


MoAlesteb  Eowabds  Coal  Company  et  al., 

Plaintiffs  in  Error,  v.  M.  E.  Tbapp,  State 

Auditor,  etc.     [No.  256.] 

In  Error  to  the  Supreme  Court  of  the 
State  [652]  of  Oklahoma. 

Messrs.  Charles  B.  Stuart  and  James  H. 
Gordon  for  plaintiffs  in  error. 

Mr.  Robert  E.  Wood  for  defendant  in 
error. 

October  12,  1915.  Judgment  reversed  at 
the  costs  of  the  plaintiffs  in  error,  and 
cause  remanded  for  further  proceedings  per 
stipulation  of  counseL 


W.  S.  Allen,  Secretary  of  State,  et  al..  Ap- 
pellants,  v.    WiLUAM*  R.   COMPTON   COM- 
PANY et  al.     [No.  305.] 
Appeal  from  the  District  Court  of  the 

United  States  for  the  Southern  District  of 

Iowa. 
Mr.  George  Cosson  for  appellants. 
No  appearance  for  appellees. 
October  12,  1915.     Dismissed  with  costs, 

on  motion  of  counsel  for  the  appellants. 


QuiNCY,  Omaha,  &  Kansas  City  Railboad 

Company,  Plaintiff  in  Error,  v.  Shelby  P. 

Noel.    [No.  378.] 

In  Error  to  the  Kansas  City  Court  of 
Appeals,  State  of  Missouri. 

Mr.  Willard  P.  Hall  for  plaintiff  in 
error. 

No  appearance  for  defendant  in  error. 

October  12,  1915.  Dismissed  with  costs, 
on  motion  of  counsel  for  the  plaintiff  in 
error. 


Delawabe,  Lackawanna,  &  Westebn  Rail- 
boad    Company,     Petitioner,     v.     Matt 

YCTBKONIS.      [No.  548.] 

On  Petition  for  a  Writ  of  Certiorari  to 
the  United  States  Circuit  Court  of  Appeals 
for  the  Second  Circuit. 

See  same  case  below,  137  C.  C.  A.  23,  220 
Fed.  429. 

Mr.  William  S.  Jenney  for  petitioner. 

No  appearance  for  respondent. 

October  12,  1915.  Dismissed  on  motion 
of  counsel  for  the  petitioner. 

SS9  V.  S. 


1915. 


MEMORANDA  CASES. 


662-655 


JoHX  Deebe  Plow  Cokpant,  Petitioner,  t. 

LEOif  D.  MowRT,  Trustee,  etc.    TNo.  588.] 

On  Petition  for  a  Writ  [653]  of  Certior- 
ari to  the  United  States  Circuit  Court  of 
Appeals  for  the  SL\th  Circuit. 

Mr.  Duane  E.  Fox  for  petitioner. 

No  appearance  for  respondent. 

October  12,  1915.  Dismissed  on  motion 
of  counsel  for  the  petitioner. 


OoiiMOirwBAi.TH  or  ViBGiiTiA,  Complain- 
ant, ▼.  John  PisBBonT  Moboan.  [No 
11,  Orig.] 

Original  bill  in  equity  filed  by  the  Com 
nonwealth  of  Virginia. 

Mr.  John  Garland  Pollard  for  complain- 
ant. 

No  counsel  appeared  for  respondent. 
October  18,  1915.     Dismissed  with  costs, 
on  motion  of  counsel  ior  the  complainant. 


MoTLOW,  PUintiff  in  Error,  ▼.  State 

OF  Tennessee.    [No.  7.] 

In  Error  to  the  Supreme  Court  of  the 
€tate  of  Tennessee. 

See  same  case  below,  126  Tenn.  647, 
L.H.A.— ,  — ,  145  S.  W.  177. 

Mr.  John  J.  Vertrees  for  plaintiff  in  er- 
ror. 

^lessrs.  Frank  M.  Thompson  and  William 
li.  Granbery  for  defendant  in  error. 

October  18,  1015.  Dismissed  with  costs 
on  motion  of  counsel  for  the  plaintiff  in 
«rror. 


J.  M.  KiLLinai  et  aL,  Plaintiffs  in  Error, 

▼.    Samuel   Stewabt,    as   Treasurer    of 

Wyandotte  County,  Kans.,    et   aL     [No. 

416.] 

In  'Error  to  the  Supreme  Court  of  the 
State  of  Kansas. 

Mr.  L.  W.  Keplinger  for  plaintiffs  in 
«rror. 

No  counsel  appeared  for  def^idants  in 
error. 

October  18,  1916.  Dismissed  with  costs, 
on  motion  of  counsel  for  the  plaintiffs  in 
error. 


Nick  Abbioo,  Plaintiff  in  Error,  y.  Qus  A. 

Htebs,  Sheriff,  etc.     [No.  690.] 

In  Error  to  the  Supreme  Court  of  [654] 
the  State  of  Nebraska. 

Messrs.  Marquis   Eaton  and  Thomas  S. 
Allen  for  plaintiff  in  error. 

Mr.  Willis  E.  Reed  for  defendant  in  error. 

October  21,  1916.    Dismissed  with  costs, 
per  stipulation. 
<6  L.  cd. 


MiKX  iNDoyiNA,  Plaintiff  in  Error,  v.  Gus 
A.  Htebs,  Sheriff,  etc.    [No.  691.] 
In  Error  to  the  Supreme  Court  of  the 

State  of  Nebraska. 
Messrs.  Marquis  Eaton  and  Thomas  8. 

Allen  for  plaintiff  in  error. 
Mr.  Willis  E.  Reed  for  defendant  In  error. 
October  21,  1915.    Dismissed  with  oosto, 

per  stipulation. 


MM 


R08A  Gu2n>ALL,  Individually,  etc.,  et  aL, 

Appellants,     v.     Maithattan     Railway 

Company  et  al.    [No.  19.] 

Appeal  from  the  District  Court  of  the 
United  States  for  the  Southern  District  of 
New  York. 

See  same  case  below,  206  Fed.  410. 

Messrs.  Edward  S.  Hatch  and  Vincent  P. 
Donihee  for  appellants. 

Mr.  James  L.  Quackenbnsh  for  appellees. 

October  21,  1916.  Dismissed,  per  stipu- 
lation. 


AuQvar  Boulanoeb,  Plaintiff  in  Error,  t. 

State  or  Louisiana.    [No.  46.] 

In  Error  to  the  Supreme  Court  of  the 
State  of  Louisiana. 

Mr.  Taliaferro  Alexander  for  plaintiff  in 
error. 

No  counsel  appeared  for  defendant  in 
error. 

October  28,  1916.  Dismissed  with  eosts, 
pursuant  to  the  Tenth  Rule. 


Standabd  Fashion  Coiipany,  Plaintiff  in 
Error,  v.  J.  L.  Gbant.  [No.  469.] 
In  Error  to  the  Supreme  Court  of  [655] 

the  State  of  North  Carolina. 

See  same  case  below,  165  N.  C.  453,  81 

S.  E.  606. 
Messrs.    J.    S.    Manning    and    Francis 

Rooney  for  plaintiff  in  error. 
Mr.   James   I(.   Price   for   defendant   in 

error. 
November  1,  1916.    Dismissed  ^ith  costs, 

on  motion  of  counsel  for  the  plaintiff  in 

error. 


OzABK  Oil  Company,  Appellant,  v.  Wil- 
liam Bebbyhill.     [No.  76.] 
In  Error  to  the   District   Court   of   the 

United  States  for  the  Eastern  District  of 

Oklahoma. 
Mr.  Haskell  B.  Talley  for  appellant. 
No  counsel  appeared  for  appellee. 
Norember  10, 1916.  Dismissed  with  costs, 

pursuant  to  the  Tenth  Rule. 

48 


W^-t69 


SUPREME  OOURT  OF  TfiE  UNITED  STATES. 


Oct.  Te/m, 


Illinois     Cbntbal    Railboad     Company, 

Plaintiff    in   Error,    v.    W.   L.    Pelton. 

[No.  569.] 

In  Error  to  the  Supreme  Court  of  the 
State  of  Iowa. 

Messrs.  Walter  S.  Horton  and  Blewett 
Lee  for  plaintiff  in  error. 

Messrs.  William  Squire  Kenyon  and  Den- 
nis M.  Kelleher  for  defendant  in  error. 

November  15, 1915.  Dismissed,  per  stipu- 
lation. 


St.  Louis  &  San  Fbancisoo  Railroad  Com- 
pany, Appellant,  v.  PuBUc  Sebvicb  Com- 
mission or  Missouri  et  al.   [No.  92]; 
Atchison,  Tofeka,  ft  Santa  Fe  Railway 
Company,  Appellant,  v.  Public  Sebvicb 
Commission   of  Missoubi  et  al.     [No. 
93];  St.  Louis  Southwestebn  Railway 
Company,  Appellant,  v.  Public  Sebvicb 
Commission  op  Missoubi  et  al.     [No. 
94];  Chicago,  Rock  Island,  ft  Pacific 
Railway  Company,  Appellant,  v.  Public 
Sebvicb  Commission  of  Missoubi  et  al 
[No.  96] ;  [656]  St.  Louis,  Kansas  City 
ft  Colorado  RailboadCompany,  Appellant 
V.  Pxtrlio  Sebvicb  Commission  of  Mis 
souRi  et  al.[No.  96] ;  Kansas  City  South 
KBN  Railway  Company,  Appellant,  v.  Pub 
Lie  Sebvicb  Commission  of  Missoubi  et 
al.  [No.  97] ;  Missoubi  Pacific  Railway 
Company,  Appellant,  v.  Public  Sebvice 
Commission  of  Missoubi  et  al.     [No. 
98];    St.    Louis,    Ibon    Mountain,    ft 
Southern  Railway  Company,  Appellant, 
Y.  PuBUO  SisvicE  Commission  of  Mis- 
soubi et  al.     [No.  99] ;  Missoubi,  Kan- 
SAS,  ft  Texas  Railway  Company,  Appel- 
lant, V.  Public  Sebvice  Commission  of 
Missoubi  et  al.     [No.   100];    Chicago, 

BUBUNOTON,  ft  QUINCY  RAILROAD  COM- 
PANY, Appellant,  v.  Pubuo  Sebvice  Com- 
mission OF  Missoubi  et  al.  [No.  101]; 
Chicago,  Milwaukee,  ft  St.  Paul  Rail- 
way Company,  Appellant,  v.  Pubuo  Sebv- 
icb Commission  of  Missoubi  et  al.  [No. 
102];  And  Chicago  ft  Alton  Railboad 
Company,  Appellant,  v.  Public  Sebvice 
Commission  of  Missoubi  et  al.  [No. 
103]. 
Appeals  from  the  District  Court  of  the 

United  States  for  the  Weistem  District  of 

Missouri. 
See  same  case  below,  210  Fed.  902. 
Messrs.  Frank  Hagerman  and  Edward  J. 

White  for  appellants. 
Messrs.  John  T.  Barker  and  William  G. 

Busby  for  appellees. 
November  29, 1915.    Dismissed  with  costs, 

on  motion  of  counsel  for  the  appellant. 

4SS 


Whjuam   J.   Deupbeb,   Trustee,  etc.   Ap- 
pellant, V.  Alice  P.  Watson.    [No.  215.) 
Appeal  from  the  United  States  Circuit 
Court  of  Appeals  for  the  Sixth  Circuit. 
Mr.  Frederick  W.  Schmitz  for  appellant. 
No  counsel  appeared  for  appellee. 
December  2,  1915.    Dismissed  with  costs, 
on  motion  of  [657]  counsel  for  the  appel- 
lant. 


Missoubi     Pacific     Railway     Company^ 

Plaintiff  in  Error,  v.  State  of  Missoubi 

AT  the  Relation  of  the  City  of  St. 

Louis.     [No.  349.] 

In  Error  to  the  Supreme  Court  of  the 
State' of  BfissourL 

Messrs.  Ernest  A  Green  and  James  F. 
Green  for  plaintiff  in  error. 

No  counsel  appeared  for  defendant  in 
error. 

December  2,  1915.  Dismissed  with  costs, 
per  stipulation. 


Ralsa  F.  Mobley  et  al.,  Plaintiffs  in  Error, 
V.  William  M.  Fewel.    [No.  105.] 
In  Error  to  the  Supreme  Court  of  the 

State  of  Oklahoma. 
Mr.  A.  J.  Biddison  for  plaintiffs  in  error. 
Mr.  Henry  B.  Martin  for  defendant  in 

error. 
December  2,  1915.    Dismissed  with  costs, 

j^ursuant  to  the  Tenth  Rule. 


Mabiano  Riesa  Palmeb,  on  Behalf  of  Him- 
self and  other  Notaries,  Appellant,  v. 
Samuel  D.  Gbomeb,  Treasurer,  A.  R. 
Sawyer,  Auditor,  and  Foster  V.  Brown, 
Attorney  General  of  Porto  Rico.  [No. 
741.] 
Appeal  from  the  Supreme  Court  of  Porto 

Rico. 

Mr.  Samuel  T.  Ansell  for  appellees. 

December  6,  1915.  Docketed  and  dis- 
missed with  costs,  on  motion  of  counsel  for 
the  appellees. 


Clabbnob  H.  Venneb,  Plaintiff  in  Error, 

V.  Chicago  City  Railway  Company  ot 

aL  [No.  125.] 

In  Error  to  the  Supreme  Court  of  the 
State  of  Illinois. 

Mr.  Elijah  N.  Zoline  for  plaintiff  in  error. 

No  counsel  appeared  for  defendants  in  er* 

ror. 

December  8,  1915.    Dismissed  with  costs, 
pursuant  to  the  [658]  Tenth  Rule. 

SS9  U.  8. 


1915. 


MEMORANDA  CASES. 


968,  t59 


Mabia  L.  Ovebton  et  al.,  Appellanta,  t. 

Unitkd  States.  [No.  130.] 

Appeal  from  the  Court  of  Claims. 

See  same  case  below,  49  Ct.  CI.  700. 

Mr.  W.  H.  Conaway  for  appellants. 

The  Attorney  General  and  Mr.  Solicitor 
General  Davis  for  appellee. 

December  9,  1916.  Judgment  reversed 
snd  cause  remanded  for  further  proceed- 
ings, upon  confession  of  error  and  motion 
of  Mr.  Solicitor  General  Davis  for  the  ap- 
pelh 


Abthub  Rtle  et  al.,  as  Trustees,  etc.,  Ap- 
pellants,  v.  UNrrED  Statss.    [No.  150.] 
Appeal  from  the  Court  of  Claims. 
See  same  case  below,  49  Ct.  CI.  699. 
Messrs.  H.  T.  Newcomb  and  Morris  F. 

Frey  for  appellants. 
The  Attorney  General  and  Mr.  Solicitor 

General  Davis  for  appellee. 
December  17,   1915.     Judgment  reversed 

and  cause  remanded  for  further  proceedings 

upon  confession  of  error  and  motion  of  Mr. 

Solicitor  General  Davis  for  the  appellee. 


UifiTKD  Statbs,  Appellant,  t.  Jxransoii 

F.  MOSEB.     [No.  159.] 

Appeal  from  the  Court  of  Claims. 

See  same  case  liclow,  49  Ct.  CI.  285. 

The  Attorney  General  for  appellant. 

Messrs.  George  A.  King  and  William  B. 
King  for  appellee. 

December  17,  1915.  Dismissed,  on  motion 
of  counsel  for  the  appellant. 


Obbook-Washinoton  Railboad  k  Nayiqa- 
TiON    CoiiPANT,    Plaintiff   in    Error,   t. 
Henbt  M.  Pfeifpeb.    [No.  407.] 
In  Error  to  the  Supreme  Court  of  the 

SUte  of  [650]  Oregon. 
Messrs.   W.   W.   Cotton   and  Henry  W. 

Gark  for  plaintiff  in  error. 

•0  li.  ed. 


Mr.  H.  M.  Pfeiffer  defendant  in  error, 
pro  se. 

December  20,  1915.  Dismissed  with  costs 
on  motion  of  counsel  for  the  plaintiff  in 
error. 


Nnm  L.  Soorr,  Appellant,  t.  Mrs.  E.  N. 

Phiufo  et  al.  [No.  334.] 

Appeal  from  the  Supreme  Court  of  the 
Territory  of  Hawaii 

See  same  case  below,  22  Haw.  412. 

Mr.  John  W.  Cathcart  for  appellant. 

No  appearance  for  appellees. 

January  6,  1916.  Dismissed  with  costs 
on  motion  of  counsel  for  the  appellant. 


Coon  Rapids  National  Bank  et  al..  Plain- 
tiffs in  Error,  v.  Maggie  I.  Leb,!  Execu- 
trix, etc  [No.  796.] 

In  Error  to  the  Supreme  Court  of  the 
State  of  Iowa. 
No  appearance  for  plaintiffs  in  error. 
Mr.  A.  B.  Cummins  in  behalf  of  Mr.  O. 
M.  Brodcett  for  defendant  in  error. 

January  10,  1916.  Dodceted  and  dis- 
missed with  costs,  pursuant  to  the  Ninth 
Rule. 


Statb  of  Washinoton  EC  BSi^  Augustus 
S.  Pbabodt,  Plaintiff  in  Error,  Trustee, 
T.  City  of  Seattlb  et  aL     [No.  191.] 
In  Error  to  the  Supreme  Court  of  the 

State  of  Washington. 
Messrs.  George  Donworth  and  Elmer  E. 

Todd  for  plaintiff  in  error. 
Mr.  Howard  A.  Hanson  for  defendants  in 

error. 

September  7,  1915.    Dismissed  pursuant 

to  the  Twenty-eighth  Rule,  per  stipulation 

of  counsel. 

1  Death  of  Anderville  Lee  suggested,  snd 
M»pearance  of  Maggie  I.  Lee,  as  party  de- 
fendant in  error  herein,  filed  ana  entered 
on  January  10,  1916. 

48» 


CASES 


ABGUSD  AND  DECIDED 


SUPREME  COURT 


OF  nn 


UISriTED  STATES 


A* 


OCTOBER  TEUM,  1915. 


Vol  240. 


••!.•«.  „, 


ItEFESSNCE  TABLE 

or  BUOH  ams 

DsoisED  nr  TJ.  a  sttfbxmx  ooxtbi; 

OOTOBBB  TBRII,  ItlB, 
840, 


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31.  iM. 

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la. 

Sl»l                     «»- 

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15S-166 

Bimiiy  Oo.  t.  ORliloraia 

576 

27S-«r8 

GNiarlBi  Stone  Co.  ▼.  P.  J. 

ii»-iftr 

t7t 

Carlin  CoaaU.  Co. 

841 

IM 

Cancgk  8Im1  Oo.  t.  IMi- 
•d  StatM 

27t-t7t 

M                        m 

84t 

076 

27t-Ml 

m                         M 

t4t 

lW-161 

M                        m 

t77 

2Sl-tM 

M                        m 

tM 

ltl-164 

m                        m 

078 

2M 

Union  Naval  Storea  Ca.  t. 

1N-Ii6 

m                       m 

t7t 

United  Statea 

tM 

Itl 

Kahma  Ottv  8out]i«ni  R. 
Oow  ▼•  QoftrdlMi  Tnui 

286-tM 

M                                     M 

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288-tM 

m                         u 

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280-Ml 

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tM 

17S-174 

«                                     M 

tat 

201-teS 

M                          m 

ttl 

1T4-Xn 

«                                     M 

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2M 

Gl^eefe  t.  United  Statea 

Ml 

2n-178 

«                                     « 

too 

206-^08 

M                                       M 

tM 

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Straus  t.  NotMema  Hotter 

208-200 

M                                       «• 

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Co. 

600 

200-801 

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8M 

17»-ltl 

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301-S04 

m                          m 

887 

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«                                         M 

608 

304^^806 

M                                       M 

8M 

18S 

«                                         W 

604 

306 

Carolina  Glaaa  Co.  t.  Sooth 

IM 

Bogm  T.  Hennepin  County 

604 

Carolina 

8M 

Ii0-1M 

608 

307-800 

M                         m 

8M 

lW-188 

M                                                 M 

607 

300-^11 

m                        m 

Ml 

ltS-100 

«                             « 

608 

311-814 

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8M 

IfO-lfi 

«                                m 

600 

314-417 

M                                         « 

8M 

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Unttod  Stotet  t.  Mmrrlmi 

600 

317-818 

«                        m 

8M 

iN-m 

m                            m 

802 

310 

Fidelitj  4  D.  06.  T.  Ptnn- 

m-800 

m                            m 

80S 

sylTania 

8M 

tod-eo2 

m                           m 

804 

320^421 

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tOS-£06 

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806 

321-tM 

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tM 

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M                                          M 

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824 

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M7-210 

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324 

Seaboard  Air  Line  R.  Ca  ▼. 

tl0-«13 

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Railroad  Commissten 

tM 

tl»-fil4 

•f                                          « 

800 

328-tM 

M                        m 

t71 

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niinoU  Snretj  Co.  t.  Unit- 

3M 

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t7t 

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800 

320-830 

m                   m 

678 

tli-tl6 

«                                     M 

812 

StO-833 

m                  m 

874 

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w                         m 

81S 

333 

m                  m 

878 

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«                         « 

814 

334 

PhiladalpUa  4  R.  R.  Ca.  t. 
United  Scatea 

ttl-224 

M                                     M 

816 

876 

tB4-£26 

M                                     M 

818 

338-338 

m                      m 

677 

tl»-tt7 

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338-341 

m                      m 

678 

tf7 

KansM  City  Ft  8.  &  K.  R. 

341 

m                       m 

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Co.  ▼.  Botkin 

817 

342 

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n^-fii 

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87t 

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m                       m 

810 

344-446 

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346-347 

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348-860 

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360-861 

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866-866 

n                      n 

8M 

Shepiierd 

822 

368-860 

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w                        m 

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360-862 

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688 

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Bmbree  t.  Ksnsis  City  k 
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382-884 

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384-887 

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800 

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387-tM 

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820 

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HamUton-BrowB  Shoe  Co. 

372-876 

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804 

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820 

376 

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806 

t0t-t66 

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380-Ml 

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700 

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88S 
8S4 

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888 

838 

881-8M 
388-8M 

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387 
388-800 

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701 
708 

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708 

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700 

m$ 

M                                         M 

710 

497 

M                        ** 

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490 

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Hi 

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707 

40^-401 

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712 

992-492 

H                          m 

700 

401-4IOS 

M                                            M 

712 

992-606 

m                       m 

700 

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HftnoTer  Star  MilL  Oft.  t. 

090-007 

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770 

HftteaU 

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607*609 

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771 

496-407 

M                                       W 

719 

610 

Armour   &   Co.   T.   North 

407-409 

«                                     M 

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Dakota 

771 

409-412 

a                           m 

717 

611 

M                                     « 

778 

412^14 

m                          « 

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611-919 

m                        m 

774 

414-417 

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619-019 

m                        m 

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417-419 

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610-017 

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770 

410-429 

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St  Louis,  L  M.  4  &  R.  Oft. 

412-429 

«                                   M 

722 

770 

429-420 

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770 

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722 

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497-429 

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716 

inf  OU  Go.  T.  OklahsMa 

770 

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622-624 

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490-431 

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716 

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727 

020-629 

m                       m 

702 

49»-430 

m                   m 

722 

629-681 

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490-499 

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716 

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Aekerlind  t.  United  States 

702 

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700 

688 

m                               m 

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Peeoft  4  K.  T.  R.  Oo.  T. 

688-080 

m                               m 

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Roftftobloom 

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680-687 

w                                m 

780 

441 

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791 

687-688 

Fkmhsa  t.  United  States 

780 

442-449 

United    SUtes    t.    Ihdtsd 

680-640 

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791 

641 

Jones  Nat.  Bank  t.  Yatos 

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M                                     \$ 

792 

648-644 

M                                      M 

704 

444 

Qreat  Northen  R.  Go.  t. 

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792 

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660-662 

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440-449 

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794 

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Cayslioga  River  Power  Co. 

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748 

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WnUnk  T.  United  States 

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400-404 

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744 

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746 

679-681 

m                           M 

810 

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681 

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746 

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761 

cago  Auditorium  Asso. 

OU 

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762 

686-680 

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697-699 

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609 

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810 

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700 

601 

m                            M 

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m                          m 

701 

601-004 

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821 

400-480 

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606 

United  States  T.  Union  Mfg. 

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702 

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922 

401r-492 

«                       m 

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600—008 

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822 

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m                      m 

706 

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mv^                 **•* 

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826 

642 

lUrbanka  Steam  Shofal  Cb. 

611 

Southerm  Bxp.  Co.  t.  Bjm 

226 

T.  WUk 

241 

612-619 

M                                             U 

226 

6if  216 

M                        m 

244 

6U-416 

M                                            M 

227 

64^-442 

M                        m 

2tf 

616 

M                                              M 

222 

f  f§  f  If 

m                      m 

•a 

617-610 

▼amer  ▼.  New  Hanpihlrt 

662 

Georgia  t.  Tenneisea  Ow- 

Sav.  Bank 

226 

perOo. 

24i 

6MK-4E8 

Baltimore  &  0.  R.  Go.  ▼. 

222-221 

m                        m 

24T 

Hostetter 

222 

222 

North  Carolina  t.  Tnaea- 

62S-626 

«<                                     M 

22Q 

eee 

24T 

626 

Bullen  ▼.  Wiacontin 

22Q 

ffli  m 

M                                    M 

2tt 

626 

«                                   M 

284 

224-667 

M                           a 

242 

620-682 

«                                   W 

226 

667-660 

w                                « 

262 

682 

a                       M 

2M 

662^661 

M                           a 

2il 

682 

Southern  R.  Oo.  t.  Preaaott 

226 

661-262 

w                         a 

22i 

688-684 

«<                                          M 

227 

622-466 

a                         a 

222 

684-686 

M                                            « 

2M 

221^-227 

a                         a 

264 

686-680 

M                                          M 

22Q 

667-268 

a                        « 

222 

68^-641 

«                                          • 

640 

•M  «.ai 


THE  DECISIONS 


or  TRB 


Supreme  Court  of  the  United  States 


lY 


OCTOBER  TERM,  1915. 


^RANK  R.  BRUSHABER,  Appt., 

V. 

^lON  PACIFIC  RAIUIOAD  COMPANY. 
(See  S.  C.  Reporter's  ed.  1-26.) 

''^Junction    —    against    Illegal    Ux    — 
^tockliolc1er*8  suit. 

1.  The  maintenance  by  a  stockholder  of 

*  •Uit  to  restrain  a  corporation  from  volim- 

. ''Uy  complying  with  the  income  tax  provi- 

i*^»i8  of  the  tariff  act  of  October  3,  1913  (38 

Y*^-  at  L.  166,  chap.  16),  upon  the  ffrounds 

^^  the  repugnancy  of  the  statute  to  tne  Fed- 

^^al   Constitution,  of  the  peculiar  relation 

^£  the  corporation  to  the  stockholders,  and 

r^eir    particular    interests    resulting    from 

fT^^ny  of  the  administrative  provisions  of 

^^  assailed  act,  of  the  confusion,  wrong,  and 

^^Itiplicity  of   suits,  and  the  absence  of 

^^1  means  of  redress,  which  will  result  if  the 

^^I'poration  pays  the  tax  and  complies  with 

I  f^^^  act  in  other  respects  without  protest,  as 

^^   la  alleged  it  is  its  intention  to  do,  is  not 

.^^bidden  by  the  prohibition  of  U.  S.  Rev. 

^^t.    §    3224,    Comp.    Stat.    1913,    §   6947, 

1^  ^^inst  enjoining  the  enforcement  of  taxes. 

*'^'>r  other  caftes,  «ee  Injunction,  I.  k.  In  Dl- 

^     ^^«t    Sup.   Ct.    1908.1 

^^^«rnal  revenue  —  power  of  Congress 
"***»  1n€*OTne  tax. 
;^_  2.  The  whole  purpose  of  U.  S.  Const., 
^^^t.1^  Amend.,  giving  Congress  the  power  "to 
^^^  and  collect  taxes  on  incomes,  from  what- 
^^.^^i"  source  derived,  without  apportionment 

^^^^OTE. — On  injunction  to  restrain  the  col- 

"^^^^ion  of  illegal  taxes — see  notes  to  Odlin  v. 

^X^^odruff,  22  L.R.A.  699;  Dows  v.  Chicago, 

^^    X-.  ed.  U.  S.  65;  and  Ogden  City  v.  Arm- 

r?*^'  42  L.  ed.  U.  S.  445. 
^^^^J^H  the  constitutionality  of  income  taxes 
^"rj^«  notes  to  Alderman  v.  Wells,  27  L.R.A. 
-teT^-S.)    864,   and    State   ex  rel.   Bolens   v. 
'  ^f^r,  L.RA.  1916B,  669. 
^^    X.  ed. 


among  the  several  states,  and  without  re< 
gard  to  any  census  or  enumeration,"  was 
to  exclude  the  source  from  which  a  taxed 
income  was  derived  as  the  criterion  by  which 
to  determine  the  applicability  of  the  con- 
stitutional requirement  as  to  apportionment 
of  direct  taxes. 

[For  other  cases,  see  Internal  Bevenne,  I.  b, 
in  Digest   Sup.   Ct   1908.] 

Constitutional  law  —  due  process  of  law 
—  Income  tax  —  retroactive  effect. 

3.  The  retroactive  effect  of  the  income 
tax  provisions  of  the  tariff  act  of  October 
3,  1913  (38  Stat,  at  L.  166,  chap.  16), 
which  fix  the  preceding  March  1st  as  the 
time  from  which  the  taxed  income  for  the 
first  ten  months  is  to  be  computed,  does 
not  render  the  tax  repugnant  to  the  due 
process  of  law  clause  of  U.  S.  Const.,  5tli 
Amend.,  nor  inconsistent  with  the  16th 
Amendment  itself,  since  the  date  of  retro- 
activity did  not  extend  beyond  the  time  when 
the  latter  Amendment  became  operative. 
[For  other  cases,  see  Constitutional  IjSw,  IV. 

b,  6;  IV.  f,  2,  in  Digest  Sup.  Ct.  1908.] 

Internal  revenue  —  income  tax  —  ex* 
emptions. 

4.  Power  to  exclude  from  taxation  some 
income  of  designated  persons  and  classes, 
and  to  exempt  entirely  certain  enumerated 
organizations  or  corporations,  such  as  labor, 
agricultural,  or  horticultural  organizational 
mutual  savings  banks,  etc.,  was  not  by  im- 
plication forbidden  to  Congress  by  the  pro- 
visions of  U.  S.  Ck)nst.,  16th  Amend.,  that 
Congress  may  lay  and  collect  taxes  on  in- 
comes "from  whatever  source  derived." 
[For  other  cases,  see  Internal  Bevenne,  I.  b. 

In  Digest  Sup.  Ct.  1908.] 

Internal  revenue  —  income  tax  —  ex^ 
emptions. 
6.  Labor,  agricultural,  or  horticultural 
organizations,  mutual  savings  banks,  etc., 
could  be  excepted  from  the  operation  of  the 
income  tax  provisions  of  the  tariff  act  of 
October  3,  1913   (38  SUi.  at  L.  166,  ehat^. 


SUPRBMB  COUET  OF  THE  UNITED  STATBa 


Oor.  Tkm. 


1i),  withont  rtndering  the  tax  repngnant  to 
the-Federal  GoDititution. 
[For  oUier  <■•«■,  aea  iDtenwl  BvTenue,  I.  b; 
III.  b,  In  DItMt  Suii.  Ct.  1908.1 

Internal  revenoe  —  Income  tax  —  anl- 
tarmlijr. 

S.  A  geographical  uniformity  Klon«  ia 
what  is  exacted  bj  the  provitiona  of  U.  S. 
Conrt,,  art.  1,  |  8,  that  "all  dntiea,  Im- 
poeta,  and  exciees  ahall  be  nnilonn  through- 
out the  United  SUtei." 
IFoT  otber  cawi,  *ee  iDterual  BaTennc,  I.  b, 

Id  Dlveat  8a p.  Ct.  IVOS.I 
ConatltuUonal    law   —    dae   proceaa   of 

Ian  —  Income  tu. 

7.  The  due  proceaa  of  law  claaBe  of  U. 
B.  CoDtt.,  Sth  Amend.,  la  not  a  limitatioD 


under  a  eeeming  exerciie  of  the  taxing  pow- 
er, Uie  taxing  statute  U  so  arbitrary  aa 
to  compel  the  cooclugion  that  it  was  not 
the  exertion  of  taxation,  but  the  conflica- 
tion  of  property,  or  iB  so  wanting  in  basia 
for  clauification  aa  to  produce  auch  a  groee 
and  patent  inequality  as  ineritably  to  lead 
to  the  aame  coseluaion. 
IFor  otber  caeea,  lee  ComtltntlDnal  Law,  IV. 

b,  0,  In  Difeii  Sop.  Ct.  Ift08.1 
Conatltntlonal   law  —  dne  proceM  of 

law  —  Inoome  tax. 
8.  The  progreuive  rate  feature  o(  the 
inrome  tax  impoaed  bj  the  act  of  October 
3,  1013  (38  Stat,  at  h.  166,  chap.  16),  doee 
not  eauae  such  tax  to  tranacend  the  concep- 
tion of  all  taxation,  and  to  be  a  mere  arbi- 
trary abuaa  of  power  which  must  be  treated 
aa  wanting  in  due  proceaa  of  law. 
(For  other  eaaei,  ice  ConiitlliitlaDal  Law,  JV. 

b.  0,  In  DIgeit   Sup.   Ct   1908.] 
Conatltntlonal    law   —   due    process    ot 

law  —  Income  tax  —  discrimination. 
0.  The  methoda  ot  collection  at  the 
eonrce,  prescribed  by  the  income  tax  pro- 
visions of  the  tariff'act  of  October  3,  1013 
(38  but.  at  L.  lee,  chap.  16),  are  not 
wanting  in  due  proceaa  of  law  because  of 
the  coat  to  which  corporations  are  subjected 
by  the  duty  ot  eollwtiou  east  upon  them, 
nor  because  of  the  resulting  discrimination 
between  corporations  indebted  upon  coupon 
and  registered  bonds  and  those  not  so  in- 
debted, nor  because  of  the  discrimination 
against  corporations  which  have  assumed 
the  payment  ot  taxes  on  their  bonds  which 
results  from  the  fact  that  some  or  all  of 
their  bondholders  may  be  exempt  from  the 
income  tax,  nor  because  of  the  discrimina- 
tion against  ownera  ot  corporate  bonds  in 
favor  ot  individaala  none  of  whose  income 
is  derived  from  such  property,  nor  because 
the  law  does  not  release  corporate  bond- 
holders from  the  payment  ol  a  tax  on  their 
bonds,  even  after  auch  taxes  have  been  de- 
ducted by  the  corporation,  if,  after  the  de- 
duction, the  coryraration  should  fall,  nor 
Irrcauae  the  payment  of  the  tax  by  the  cor- 
poration does  not  relieve  the  owners  ol 
bonds,  the  taxes  on  which  have  been  assumed 
by  the  corporation,  from  their  duty  to  in- 
clude the  income  from  such  bends  in  making 
a  return  ot  all  income. 
(For  other  caseR,  pee  Connlitatlonsl  Law,  IT. 

fc   A  la  DlSMt  8ap.  Ct.  IMS.] 


Conatltntlonal    law  —  dne  prooM*  tit 
law  —  Income  tax  —  dlacrUntiwtlon. 

10.  Limiting  the  amount  of  Interart 
which  may  be  deducted  from  groaa  incoma 
at  a  corporation  for  the  purpose  of  Axfaw 
the  taxable  income  to  interest  on  indebtef 
nesa  not  exceeding  one  half  the  som  of 
bonded  indebtednesa  and  paid-up  eapltkl 
ttock,  aa  is  done  by  the  income  tax  proirt- 
liona  of  the  tariff  act  ot  October  3,  IDIS 
(38  Stat,  at  L.  166,  chap.  10),  is  not  want- 
ing In  due  proceu  of  law  because  discrim- 
inating between  different  classes  of  oor- 
porations  and  individuals. 

[For  otber  cases,  see  Constltntianal  lisw,  IT. 
b.  6,  In  DlKCSt  Sup.  Ct  180S.] 

Constitutional    law  —  due  process   ot 
law  —  income  tax  —  discrimination. 

11.  Allowing  individuals  to  deduct  fron 
their  gross  income  dividends  paid  them  by 
corporations  whose  incomes  are  taxed,  and 
not  giving  such  right  of  deduction  to  cor- 
porations, as  is  done  by  the  income  tax 
provisions  of  the  tariff  act  of  October  S, 
1D13  (3R  SUt.  at  L.  166,  chap.  1«),  doea 
not  render  the  tax  wanting  in  due  process 
of  law. 

IFor  other  cnsea,  see  CoDatltational  Law.  IT. 

b,  fl,  in  Divest  Bap.  Ct  190H.] 
Constitutional    law   —   due   process   ot 

law  —  Income  tax  —  discrimination. 
J'l.  The  allowance  of  a  deduction  of 
(3,000  or  (4,000  to  those  who  pay  the  nor- 
mal tax,  as  ia  done  by  the  income  tax  provi- 
sions of  the  Urilf  act  of  October  3,  1013 
(38  SUt.  at  L.  166,  chap.  16),  is  not  want- 
ing in  due  process  ot  law  because  those 
whose  incomes  are  greater  than  (20,000  are 
not  allowed,  for  the  purpoae  of  the  addition- 
al or  progressive  Ux,  a  second  right  to  da- 
duct  the  (3,000  or  (4,000  which  they  have 
already  enjoyed,  nor  because,  for  the  pur- 
pose of  the  additional  tax,  no  second  right 
to  deduct  dividends  received  from  corpora* 
tions  is  permitted. 
[ITor  otber  cskk,  see  Conitltn Clonal  Law,  IV. 

b.  fl,  in  DIxest  8np.  Ct  1808.] 
Constitutional    law   —   dae   procttas    itf 

law  —  Income  Ux  —  discrimination. 

13.  The  allowance  ot  a  deduction  of  eUt- 
ed  amounU  for  the  purpoae  ot  ascerUining 
the  Uxable  income,  as  is  done  by  the  in- 
come Ux  provisions  of  the  taritf  act  of 
October  3,  1013  {38  SUt,  at  U  16U,  chap. 
16),  doea  not  render  the  Ux  wanting  in 
due  process  ot  law  because  ot  the  discrim- 
ination between  married  and  single  peopla, 
and  between  husbands  and  wives  who  ar« 
living  together  and  those  who  are  not. 
[For  otber  ntn,  we  ConiCIIntlonal  Law.  IT. 

b,  a.  Id  Dlaest  Sup.  Ct  1B08.) 
Constitutional    law   —   doe   proccsa    of 
law  —  Income  Ux  —  disc:rlnilnatloB, 

14.  No  unconstitutional  discriminatitm 
and  want  al  due  process  of  law  resnlU  bn- 
cause  the  owners  of  houses  in  which  tbaj 
live  arc  not  compelled  by  the  income  tu 
provisions  of  the  Uriff  act  of  October  t, 
1S13  (38  SUt.  at  h.  166,  chap.  16),  to  Mti- 
mato  the  renUI  value  in  making  up  their 
incomes,  while  thoae  who  live  in  rented 
houses  nre  not  allowed,  in  making  up  tbair 
Uxable   income,   to  deduct   the   rent  whhk 

140  V.  S. 


1915. 


BRU8HABER  t.  UNION  P.  R.  00. 


they  haTe  paid*  nor  iNlbauie  of  the  fact  that 

although  family  enenaes  are  not,  as  a  rple, 

permitted  to  be  deducted  from  gross  income, 

farmers  are  permitted  to  omit  from  their 

income  return  certain  products  of  the  farm 

which  are  susceptible  of  use  by  them  for 

sustaining  their  families  during  the  year. 

[For  otber  cases,  see  Constitutional  Lew,  IV. 
b,  6,  In  Digest  Sup.  Ct.  1»08.] 

ConstltQtioiUil  law  —  delegation  of 
power  —  Administration  of  Income 
tax. 

15.  An  unwarrantable  delegation  of  legis- 
lative authority  was  not  made  by  the  in- 
come tax  provisions  of  the  tariff  act  of 
October  3,  1013  (88  SUt.  at  L.  166,  ehi^. 
16),  because  certain  administrative  powers 
to  raf orce  the  act  were  conferred  by  it  upon 
the  Secretary  of  the  Treasury. 
(For  other  cases,  see  Conttltntlonsl  Lew,  III. 
b.  In  Digest  Sup.  Ct.  1008.] 

[No.  140.] 

Argued  October  14  and  15,  1015.    Decided 
January  24,  1016. 

APPEAL  from  the  District  Court  of  the 
Uniced  States  for  the  Southern  District 
of  New  York  to  review  a  decree  dismissing 
the  bill  in* a  suit  by  a  stockholder  to  re- 
strain the  corporation  from  voluntarily  com- 
plying M-ith  the  Fjederal  income  tax.  Af- 
firmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Jnllen  T.  Davles  argued  the  cause, 
and,  with  Messrs.  Brainard  Tolles,  Qarrard 
Glenn,  and  Martin  A.  Schenck,  filed  a  brief 
for  i^pellant: 

Arbitrary  selection  under  the  guise  of 
classification  is  uniformly  condemned. 

SanU  Clara  County  t.  Southern  P.  R.  Co. 
18  Fed.  385,  affirmed  in  118  U.  S.  804,  80 
L.  ed.  118,  6  Sup.  Ct.  Rep.  1182;  San  Ber- 
nardino County  T.  Southern  P.  R.  Co.  118 
U.  S.  417, 30  L.  ed.  125, 6  Sup.  Ct.  Rep.  1144 ; 
San  Mateo  County  v.  Southern  P.  R.  Co.  18 
Fed.  145;  1  Cooley,  Taxn.  3d  ed.  1,  4;  Gray, 
limitations  of  Taxing  Power,  p.  353; 
Cooley,  Const.  Lim.  pp.  607,  615;  Citizens' 
Sav.  k  L.  Asso.  v.  Topeka,  20  WalL  655,  22 
L.  ed.  455;  United  States  v.  Singer,  15  WaU. 
Ill,  21  L.  ed.  40;  M'CuUoch  v.  Maryland, 
4  Wheat.  316,  4  L.  ed.  570;  Ward  v.  Mary- 
land, 12  Wall.  418,  20  L.  ed.  440|  PoUock 
T.  Farmers'  Loan  k  T.  Co.  167  U.  S.  420, 
30  L.  ed.  750,  15  Sup.  Ct.  Rep.  678;  South- 
ern R.  Co.  V.  Greene,  216  U.  S.  400,  54  L.  ed. 
636,  80  Sup.  Ct.  Rep.  287,  17  Ann.  Caa. 
1247. 

Unapportioned  compulsory  serviee  it  not 
a  tax. 

United  SUtes  t.  Baltimore  ^b  0.  R.  Co. 
17  WalL  822,  326,  21  L.  ed.  507,  50tf;  Re 
Vkrrell,  211  Fed.  213,  6  N.  a  a  A.  858; 
Savannah  v.  Cooper,  131  Ga.  674»  68  a  B. ' 
•0  I«.  ed. 


188;  Bouvier's  Law  Diet;  Toone  t.  State, 
178  Ala.  70,  42  LJLA.(N.a)  1045,  50  So. 
665;  New  Jersey  v.  Anderson,  203  U.  S. 
483,  51  L.  ed.  284,  27  Sup.  Ct  Rep.  137. 

Enforced  labor  by  legislative  enactment 
without  compensation  is  an  unconstitu- 
tional taking  of  property. 

Louisville  &  N.  R.  Co.  v.  Central  Stock- 
yards Co.  212  U.  S.  132,  53  L.  ed.  441,  20 
Sup.  Ct.  Rep.  246;  United  States  y.  Welch, 
217  U.  S.  333,  330,  54  L.  ed.  787,  780,  28 
L.RJ1.(N.S.)  385,  80  Sup.  Ct  Rep.  527,  10 
Ann.  Cas.  680;  United  States  v.  Buffalo 
PitU  Co.  ^34  U.  S.  228,  58  L.  ed.  1200,  34 
Sup.  Ct.  Rep.  840;  Richards  v.  Washington 
Terminal  Co.  233  U.  S.  546,  58  L.  ed.  1088, 
LJLAa015A,  887,  34  Sup.  Ct.  Rep.  654; 
James  v.  Campbell,  104  U.  S.  356,  26  L.  ed. 
786;  Chicago,  B.  ^b  Q.  R.  Co.  v.  Chicago,  16d 
U;  S.  226,  41  L.  ed.  070,  17  Sup.  Ct.  Rep. 
581;  Lake  Shore  &  M.  S.  R.  Co.  t.  Smith, 
173  U.  S.  684,  43  L.  ed.  858;  10  Sup.  Ct.  Rep. 
565;  McCully  v.  Chicago,  B.  k  Q.  R.  Co.  212 
Mo.  1,  110  S.  W.  711;  Atty.  Gen.  v.  Old 
Colony  R.  Co.  160  Mass.  62,  22  L.R.A.  112, 
35  N.  E.  252;  Chicago,  M.  &  St.  P.  R.  Co. 
V.  Wisconsin,  238  U.  S.  401,  50  L.  ed.  1423, 
L.RA.1016A,  1133,  P.U.R.1015D,  706,  35 
Sup.  Ct  Rep.  860;  United  SUtes  v.  Mitch- 
ell, 58  Fed.  003. 

Congress,  in  the  exercise  of  its  taxing 
power,  is  nevertheless  bound  by  the  express 
and  implied  provisions  of  the  Constitution. 

Connolly  v.  Union  Sewer  Pipe  Co.  184 
U.  S.  540,  46  L.  ed.  670,  22  Sup.  Ct.  Rep. 
431. 

The  grant  of  power  to  Congress  by  the 
Constitution  does  not  become  effective  until 
Congress  exercises  the  power  by  legislation. 

Sturges  V.  Crowninshield,  4  Wheat.  122,  4 
L.  ed.  520;  Missouri  P.  R.  Co.  v.  Larabee 
Flour  Mills  Co.  211  U.  S.  612-623,  53  L.  ed. 
352-361,  20  Sup.  Ct.  Rep.  214;  Minnesota 
Rate  Cases  (Simpson  v.  Shepard)  230  U.  S. 
352-308,  57  L.  ed.  1511-1540,  48  LJIA. 
(NJ3.)  1151,  33  Sup.  a.  Rep.  720,  Ann.  Cas. 
1016A,  18. 

No  legislative  fiat  of  October  8,  1013, 
could  change  what  already  existed.  Such 
amounts  as  had  been  received  by  the  tax- 
payer prior  to  that  date  were  no  longer 
income,  but  had  become  capital,  and  merged 
in  the  general  corpus  of  his  estate. 

Merchants'  Ins.  Co.  v.  McCartney,  1  Lowf 
Dec.  447,  Fed.  Cas.  No.  0,443;  People  ex 
reL  Cornell  University  v.  Davenport,  30 
Hun,  177;  Sun  Mut  Ins.  Co.  v.  New  York, 
8  N.  Y.  241;  Gray  v.  Darlington,  16  WalL 
63,  21  L.  ed.  45;  Riddle's  Appeal,  00  Pa. 
270;  Goodwin  v.  McGaughey,  108  Minn.  248, 
122  N.  W.  6;  Kalbach  v.  Clark,  183  Iowa, 
215,  12  LJLA.(NJ3.)  801,  110  N.  W.  500,  12 
Ann.  Caa.  647. 

Where  an  assessment  rests  in  part  upon 


SUFEEHB  OOUET  OF  THE  VHITKD  STATES. 


Oct.  Tuk, 


m.  lubject  ov«r  which  the  KBaeuing  BUthoritf 
baa  no  juriadiction,  or  wher«  the  tax  ii 
levied  In  part  for  aa  Illegal  pnrpoae,  and 
no  method  appears  wherebf  tiw  legal  ele- 
ment can  be  wparated  from  that  which  i< 
Illegal,  the  whole  tax,  or  the  whole  aueaa- 
ment,  aa  the  ease  may  be,  ia  void. 

Stetaon  v.  Kempton,  13  Maaa.  272,  7  Am. 
Dec.  145;  Libb^  r.  Bunibam,  16  Mau.  144; 
Joyner  v.  School  Diet.  3  Cuah.  607;  Free- 
land  y.  HastingB,  10  Allen,  670;  Johnson  t. 
Colbum,  36  Vt.  BS3(  I^cej  -r.  Darii,  4 
Mich.  140,  06  Am.  Dee.  624;  CUrhe  v. 
Strickland,  2  Curt.  C.  C.  43D,  Fed.  Cas.  Mo. 
2,864;  Union  Nat.  Bank  v.  Chicago,  3  Bias. 
82,  Fed.  Cas.  No.  14,374;  Worthen  t.  Bad- 
gett,  32  Ark.  496;  Santa  Gara  County  v. 
Southern  P.  R.  Co.  116  U.  S.  3B4,  SO  L.  ed. 
lie,  6  Sup.  Ct.  Rep.  1132;  Alexandria 
Canal,  R.  k.  Bridge  Co.  v.  District  of  Colom- 
bia, 6  Mackey,  376;  Alexandria  Canal,  R. 
A  Bridge  Co.  v.'  District  of  Columbia,  1 
Hackey,  817. 

Solicitor  General  Davis  and  Assistant 
Attorney  Oeneril  Wallace  argued  the  cause, 
and,  with  Attorney  General  Gregory,  filed  a 
brief  for  the  United  SUtes: 

The  court  below  waa  without  jurisdic- 
tion. 

Snyder  v.  Harks,  100  U.  S.  189,  27  L.  ed. 
001,  3  Sup.  Ct.  Rep.  167;  Shelton  r.  Piatt, 
130  U.  S.  691,  36  L.  ed.  273,  11  Snp.  Ct.  Rep. 
646;  Allen  v.  Pullman's  Palace  Car  Co.  130 
U.  S.  668,  36  L.  ed.  303,  11  Sup.  Ct.  Rep. 
682;  Straus  v.  Abraat  Realty  Co.  200  Fed. 
327;  Hawes  r.  Oakland  (Hawes  v.  Contra 
Costa  Water  Co.)  104  U.  S.  460,  26  L.  ed. 
827. 

No  facta  are  alleged  indicating  any 
greater  danger  of  multiplicity  of  euita,  or 
clouds  on  titles,  in  connection  with  the  en- 
forcement of  these  taxes,  than  in  the  case 
of  any  other  tax. 

Daws  T.  Chicago,  11  WaU.  108,  20  L.  ed. 
«6;  Southern  R.  Co.  t.  King,  217  U.  S.  624, 
6S4,  630,  64  L.  ed.  868,  8T1,  872,  30  Sup.  a. 
Rep.  694. 

The  uniformity  requirement  of  clause  1 
of  g  8  of  article  I.  of  the  Constitution  is 
limited  to  duties,  imposts,  and  excises,  and 
does  not  apply  to  direct  taxes. 

Pollock  V.  Farmers'  Loan  t  T.  Co.  167  U. 
C.  657,  30  L.  ed.  810,  IS  Sup.  Ct  Rep.  673; 
Spreckels  Sugar  Ref.  Co.  t.  HeClain,  192 
U.  S.  307, 413,  46  L.  ed.  496,  601,  24  Sup.  Ct. 
376;  License  Tax  Cases,  6  WaU.  402,  471, 18 
L.  ed.  407,  600. 

Apportionment  being  restricted  to  direct 
taxes  only  (Flint  v.  Stone  Tracy  Co.  220 
U.  S.  107,  162,  177,  66  L.  ed.  380,  413,  423, 
«  Sup.  Ct.  Bep.  342,  Ann.  Cas.  10126, 
1312),  the  16th  Amendment,  in  removing 
a*t  rMtiiotion,  reoognii«d  any  tax  upon 


I  income  "from  whatevu-  source  derived"  aa 
'  a  direct  tax,  and,  as  such,  subject  to  Hm 
apportionment   rules    unless    specially    oz- 

The  Constitution  imposee  on  the  taxing 
power  no  rule  of  implied  or  inherent  nid* 
formity. 

PoIk>ck  v.  Farmers'  Loan  ft  T.  Co.  167  XJ. 
S.  657,  30  L.  ed.  810,  16  Sup.  Ct.  Rep.  673; 
License  Tax  Oases,  6  Wall.  462,  471,  18  L. 
ed.  407,  500;  Patton  v.  Brady,  1S4  U.  S. 
608,  46  L.  ed.  713,  22  Sup.  Ct.  Rep.  403; 
McCray  v.  United  States,  105  U.  S.  27,  «« 
L,  ed.  76,  24  Sup.  Ct.  Rep.'76D,  1  Ann.  Oa«. 
561 ;  Flint  v.  Stone  Tracy  Co.  220  U'.  S.  107, 
66  L.  ed.  389,  31  Sup.  Ct.  Rep.  342,  Ann. 
Cas.  1012B,  1312. 

The  rule  of  uniformity,  where  applicable,' 
is  not  violated  by  either  exemption,  claaai- 
Scation,  or  discrimination  unless  these  be  ao 
arbitrary  and  outrageous  as  to  indicate 
favoritism  or  prejudice. 

Knowlton  v.  Moore,  178  U.  S.  41,  44  L. 
ed.  06B,  20  Sup.  Ct.  Rep.  747;  Flint  v. 
Stone-Tracy  Co.  220  U.  S.  107,  66  L.  ed. 
380,  31  Sup.  Ct.  Rep.  342,  Ann.  Cas.  1012B, 
1312;  Cook  r.  Marshall  County,  196  U.  S. 
261,  49  L.  ed.  471,  26  Sup.  Ct.  Rep.  233; 
Nicol  V.  Ames,  173  U.  S.  S0»,  43  L.  ed.  786, 
10  Sup.  Ct.  Rep.  622. 

The  express  uniformity  clause  of  the 
Constitution  requires  only  geographical,  and. 
not  intrinsic,  uniformity. 

Knowlton  v.  Moore,  178  U.  S.  41,  44  L. 
ed.  069,  20  Sup.  Ct  Rep.  747;  Billings  ▼. 
United  SUtes,  232  U.  S.  261,  68  L.  ed-  6M, 
34  Sup.  Ct.  Rep.  421. 

Assuming  also  that  the  Bth  Amendment 
controls  the  taxing  power, — as  it  doea 
not, — and  even  that  the  "equal  protection" 
requirement  of  the  14th  Amendment  may 
be  either  read  into  or  spelled  out  of  the  lan- 
guage of  the  6th  Amendment, — as  It  may 
not, — neither  would  operate  to  forbid  rea- 
sonable exemption,  claseiBcation,  or  dis- 
crimination. 

District  of  Columbia  v.  Brooke,  214  U.  S. 
138,  63  L.  ed.  041,  20  Sup.  Ct.  Rep.  660; 
Second  Employers'  Liability  Cases  (Mon- 
dou  V.  New  York,  N.  H.  &  H.  R.  Co.)  223 
U.  S.  1,  66  L.  ed.  327,  38  L.R.A.(N.S.)  44, 
32  Sup.  Ct.  Rep.  160,  1  N.  C.  C.  A.  876; 
Barrett  v.  IndUna,  229  U.  S.  26,  29,  67  L. 
ed.  1060,  1052,  33  Sup.  Ct.  Rep.  6B2;  Inter- 
national Harvester  Co.  v.  Missouri,  234  U. 
S.  100,  214,  216,  68  L.  sd.  1276,  1283,  1284, 
62  LJLA.(N.S.)  626,  34  Sup.  Ct.  Rep.  859; 
Metropolis  Theater  Co.  v.  Chicago,  228  U. 
S.  61,  60,  67  L.  ed.  730,  733,  S3  Sup.  Ct 
Rep.  441 ;  Lindsley  v.  National  Carbonio 
Gas  Co.  220  U.  -S.  61,  78,  65  L.  ed.  800,  377, 
81  Slip.  Ct.  Rep.  337,  Ann.  Cas.  1&12C,  160; 
Gibbons  v.  District  of  Columbia,  116  U.  & 
404,  20  L.  ad.  680,  6  Sap.  Ct  Rep.  427; 

14*  u.  a. 


1916. 


BRUSHABER  v.  UNION  P.  R.  00. 


Bcera  ▼.  Glynn,  211  U.  S.  477,  53  L.  ed. 
290,  29  Sup.  Ct.  Rep.  190;  Magoun  v.  Illi- 
nob  Trust  A  Say.  Bank,  170  U.  S.  299,  42 
L.  ed.  1044,  18  Sup.  Ct.  Rep.  594;  Welch 
T.  Cook,  97  U.  S.  641,  24  L.  ed.  1112;  Home 
<of  the  Friendless  v.  Rouse,  8  Wall.  430,  19 
L.  ed.  496;  East  Saginaw  Salt  Mfg.  Co.  v. 
East  Saginaw,  13  Wall.  373,  20  L.  ed.  611. 

Selection  and  classification  is  an  exdu- 
aive  function  of  Congress  until  its  exercise 
becomes  plainly  the  result  of  prejudice  or 
fsToritism. 

Coolej,  Const.  Lim.  3d  ed.  p.  739;  Pacific 
Ins.  Co.  V.  Soule,  7  Wall.  433,  19  L.  ed.  95; 
McCray  v.  United  States,  195  U.  S.  27,  49 
1m  ed.  78,  24  Sup.  Ct  Rep.  769,  1  Ann.  Cas. 
561;  Veazie  Baiflc  v.  Fenno,  8  Wall.  548,  19 
L.  ed.  487;  Treat  v.  White,  181  U.  S.  264, 
45  L.  ed.  853,  21  Sup.  Ct.  Rep.  611;  Flint  v. 
Stone  Tracy  Co.  220  U.  S.  107,  55  L.  ed. 
389,  31  Sup.  Ct.  Rep.  342,  Ann.  Cas.  1912B, 
1312;  Patton  v.  Brady,  184  U.  S.  608,  46 
L.  ed.  713,  22  Sup.  Ct.  Rep.  493;  Lindsley 
T.  Natural  Carbonic  Gas  Co.  220  U.  S.  61, 
55  L.  ed.  369,  31  Sup.  Ct.  Rep.  337,  Ann. 
Cas.  1912C,  160;  Metropolis  Theater  Co.  ▼ 
Chicago,  228  U.  S.  61,  57  L.  ed.  730,  33 
Sup.  Ct.  Rep.  441;  International  Harvester 
Co.  V.  Missouri,  234  U.  S.  199,  58  L.  ed. 
1270,  52  L.RA..(N.S.)  525,  34  Sup.  Ct.  Rep. 
859;  Nicol  v.  Ames,  173  U.  S.  509,  43  L.  ed. 
786.  19  Sup.  Ct.  Rep.  522;  Barrett  v.  In- 
diana, 220  U.  S.  26,  57  L.  ed.  1050,  33  Sup. 
Ct.  Rep.  692. 

None  of  the  exemptions  or  discrimina- 
"tions  here  complained  of  produce  lack  of 
uniformity. 

Nicol  y.  Ames,  173  U.  S.  509,  43  L.  ed 
786,  19  Sup.  Ct.  Rep.  522;  Lindsley  v. 
Ifatural  Carbonic  Gas  Co.  220  U.  S.  61,  55 
!#.  ed.  369,  31  Sup.  Ct.  Rep.  387,  Ann.  Cas. 
1912C,  160;  Flint  v.  Stone  Tracy  Co.  220 
U.  S.  107,  55  L.  ed.  380,  31  Sup.  Ct.  Rep. 
M2,  Ann.  Gas.  1912B,  1312;  Home  of  the 
Friendless  v.  Rouse,  8  WalL  430,  19  L.  ed. 
495;  East  Saginaw  Salt  Mfg.  Co.  v.  East 
Saginaw,  13  WalL  373,  20  L.  ed.  611;  Gib- 
lK>ns  T.  District  of  Columbia,  116  U.  S.  404, 
29  L.  ed.  680,  6  Sup.  Ct.  Rep.  427;  Peacock 
T.  Prait,  58  C.  C.  A.  48, 121  Fed.  777 ;  Black, 
bieome  Taxes,  p.  28;  Kentucky  R.  Tax 
Cases,  115  U.  S.  321,  337,  29  L.  ed.  414,  419, 
S  Sup.  Ct.  Rep.  57;  Pacific  Exp.  Co.  v.  Sei- 
bcrt,  142  U.  S.  339,  354,  35  L.  ed.  1035, 
1040,  3  Inters.  Com.  Rep.  810,  12  Sup.  Ct. 
Rep.  £50;  Income  Tax  Cases,  148  Wis.  456, 
LJI.A.1915B,  569,  134  N.  W.  673,  135  N. 
W.  164,  Ann.  Cas.  1913A,  1147;  Tennes- 
aee  v.  Wliitworth,  117  U.  S.  129,  29  U 
•ed  830,  6  Sup.  Ct  Rep.  645;  New  Or- 
leans v.  Citizens'  Bank,  167  U.  S.  371,  42 
L.  ed.  202;  17  Sup.  Ct.  Rep.  905;  Powers 
T.  Detroit,  G.  H.  A  M.  R.  Co.  201  U.  S.  548, 
M  L.  ed.  860,  26  Sup.  Ct.  Rep.  556;  South- 
«•  Ii.  ed. 


em  R.  Co.  y.  King,  217  U.  S.  534,  54  L.  ed. 
871,  30  Sup.  Ct.  Rep.  594;  New  York  ex 
rel.  Hatch  v.  Reardon,  204  U.  S.  160,  51  L. 
ed.  422,  27  Sup.  Ct.  Rep.  188;  Stratton's 
Independence  v.  Howbert,  231  U.  S.  399,  58 
L.  ed.  285,  34  Sup.  Ct.  Rep.  136;  Coltness 
Iron  Co.  y.  Black,  L.  R.  6  App.  Cas.  315,  51 
L.  J.  Q.  B.  N.  S.  626,  45  L.  T.  N.  S.  145, 
20  Week.  Rep.  717,  46  J.  P.  20;  Alianza  Co. 
y.  BeU  [1904]  2  K.  B.  666,  [1905]  1  K.  B. 
184,  74  L.  J.  K.  B.  N.  S.  219,  53  Week.  Rep. 
257,  92  L.  T.  N.  S.  184,  21  Times  L.  R.  134, 
[1906]  A.  C.  18,  75  L.  J.  K.  B.  N.  S.  44,  54 
Week.  Rep.  413,  93  L.  T.  N.  S.  705,  22  Times 
L.  R.  94;  Com.  y.  Ocean  Oil  Co.  59  Pa.  61, 
14  Mor.  Min.  Rep.  126;  Com.  t.  Penn  Gas 
Coal  Co.  62  Pa.  241,  14  Mor.  Min.  Rep.  163; 
Ohio  Tax  Cases,  232  U.  S.  576,  590,  591,  58 
L.  ed.  738,  744,  745,  34  Sup.  Ct.  Rep.  372; 
Southwestern  Oil  Co.  y.  Texas,  217  U.  S. 
114,  126,  127,  54  L.  ed.  688,  604,  30  Sup. 
Ct.  Rep.  496;  Magoun  y.  Hlinois  Trust  & 
Say.  Bank,  170  U.  S.  292,  293,  296,  42  L.  ed. 
1042,  1043,  18  Sup.  Ct.  Rep.  504;  Knowlton 
y.  Moore,  178  U.  S.  109,  44  L.  ed.  996,  20 
Sup.  Ct.  Rep.  747. 

The  tax  is  not  an  infraction  of  the  gen- 
eral power  of  the  states  to  authorize  the 
formation  of  corporations  and  joint  stock 
companies. 

Flint  y.*  Stone  Tracy  Co.  220  U.  S.  107, 
158,  55  L.  ed.  389,  416,  31  Sup.  Ct.  Rep.  342, 
Ann.  QuB.  1912B,  1812. 

The  burden  of  "source  collection,"  placed 
upon  certain  corporations,  does  not  violate 
the  Constitution. 

First  Nat.  Bank  y.  Kentucky,  9  WalL 
353,  363,  19  L.  ed.  701,  704;  Home  Say. 
Bank  y.  Des  Moines,  205  U.  S.  503,  51  L. 
ed.  901,  27  Sup.  Ct.  Rep.  571;  Cooley,  Taxn. 
3d  ed.  p.  832;  Patton  y.  Brady,  184  U.  S. 
608,  620,  621,  46  L.  ed.  713,  719,  720,  22 
Sup.  Ct.  Rep.  493;  Bell's  Gap  R.  Co.  y. 
Pennsylvania,  134  U.  S.  232,  239,  33  L.  ed. 
892,  895,  10  Sup.  Ct.  Rep.  533;  Cummings 
y.  Merchants'  Nat.  Bank,  101  U.  S.  153,  156, 
25  L.  ed.  903,  904;  National  Safe  Deposit 
Co.  y.  Stead,  232  U.  S.  58,  70,  58  L.  ed. 
504,  510,  34  Sup.  Ct.  Rep.  209;  Gray,  Limi- 
tations of  Taxing  Power,  §  1195;  First 
Nat.  Bank  y.  Chehalis  County,  166  U.  S. 
440,  444,  41  L.  ed.  1069,  1072,  17  Sup.  Ct. 
Rep.  629;  Merchants'  &  M.  Nat.  Bank  y. 
Pennsylvania,  167  U.  S.  461,  464,  42  L.  ed. 
236,  237,  17  Sup.  Ct.  Rep.  829;  Carstairs  y. 
Cochran,  193  U.  S.  10,  48  L.  ed.  696,  24  Sup. 
Ct.  Rep.  318;  Union  Bank  y.  Richmond,  94 
Va.  316,  26  S.  E.  821 ;  Com.  y.  Citizens'  Nat. 
Bank,  117  Ky.  946,  80  S.  W.  158. 

The  taxation  of  income  accrued  prior  to 
the  passage  of  the  act  violates  no  constitu- 
tional nor  equitable  principle. 

Drexel  v.  Com.  46  Pa.  31;  Stockdale  y. 

Atlantic  Ins.  Co.  20  Wall.  323,  22  L.  ed. 

32  497 


9,  10 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct. 


S48;  Income  Tax  Gases,  148  Wis.  456, 
LJLA.1016B,  660,  134  N.  W.  673,  136  N.  W. 
164,  Ann.  Gas.  1013A,  1147;  Coolej,  Tazn. 
3d  ed.  pp.  492-494.  See  also  Locke  t.  New 
Orleans,  4  Wall.  172,  18  L.  ed.  334;  Graj 
T.  Darlington,  16  WalL  63,  66,  21  L.  ed.  46, 
46;  Maine  v.  Grand  Trunk  R.  Go.  142  U.  S. 
217,  36  L.  ed.  994,  3  Inters.  Gom.  Rep.  807, 
12  Sup.  Ct.  Rep.  121,  163;  Patton  v.  Brady, 
184  U.  S.  608,  46  L.  ed.  713,  22  Sup.  Gt  Rep. 
493;  Flint  v.  Stone  Tracy  Go.  220  U.  S. 
108,  66  L.  ed.  389,  31  Sup.  Gt.  Rep.  342, 
Ann.  Gas.  1912B,  1312. 

There  is  no  invalid  delegation  of  judicial 
authority  to  the  Secretary  of  the  Treasury. 

Den  ex  dem.  Murray  v.  Hoboken  Land 
k  ImproT.  Go.  18  How.  272,  15  L.  ed.  372; 
Fong  Yeu  Ting  v.  United  States,  149  U.  S. 
698,  714,  37  L.  ed.  906,  913,  13  Sup.  Gt.  Rep. 
1016;  Lem  Moon  Sing  v.  United  States,  158 
U.  S.  638,  644,  39  L.  ed.  1082,  1084,  16  Sup. 
Gt.  Rep.  967;  Nishimura  Ekiu  v.  United 
SUtes,  142  U.  S.  651,  660,  35  L.  ed.  1146, 
1149,  12  Sup.  Gt.  Rep.  336;  United  SUtes 
y.  Duell,  172  U.  S.  676,  586,  43  L.  ed.  669, 
563,  19  Sup.  Gt.  Rep.  286;  Butterworth  v. 
United  SUtes,  112  U.  S.  60,  67,  18  L.  ed. 
656,  661,  6  Sup.  Gt.  Rep.  25;  Runkle  ▼. 
United  SUtes,  122  U.  S.  643,  657,  30  L.  ed. 
1167,  1171,  7  Sup.  a.  Rep.  1141;  United 
SUtes  V.  Ju  Toy,  198  U.  S.  253,  49  L.  ed. 
1040,  26  Sup.  Gt.  Rep.  644;  Tang  Tun  ▼. 
Edsell,  223  U.  S.  673,  56  L.  ed.  606,  32  Sup. 
Gt.  Rep.  359;  United  SUtes  ▼.  Sing  Tuck, 
194  U.  S.  161,  170,  48  L.  ed.  917,  921,  24 
Sup.  Gt.  Rep.  621;  Japanese  Immigrant 
Gase  (YamaUya  v.  Fisher)  189  U.  S.  86,  98, 
47  L.  ed.  721,  724,  23  Sup.  Gt.  Rep.  611; 
United  SUtes  ex  rel.  Turner  v.  Williams, 
194  U.  S.  279,  48  L.  ed.  979,  24  Sup.  Gt. 
Rep.  719;  Ghin  Bak  Kan  v.  United  SUtes, 
186  U.  S.  193,  46  L.  ed.  1121,  22  Sup. 
Gt.  Rep.  891;  Fok  Yung  Yo  v.  United 
SUtes,  186  U.  S.  296,  46  L.  ed.  917,  22 
Sup.  Gt.  Rep.  686;  Union  Bridge  Go.  ▼. 
United  SUtes,  204  U.  S.  364,  386,  61  L.  ed. 
623,  533,  27  Sup.  Gt.  Rep.  367 ;  Buttfield  v. 
Stranahan,  192  U.  S.  470,  48  L.  ed.  625,  24 
Sup.  Gt.  Rep.  349;  Oceanic  Steam  Nav.  Go. 
y.  Stranahan,  214  U.  S.  320,  63  L.  ed.  1013, 
29  Sup.  Gt.  Rep.  671. 

There  is  ample  provision  for  hearing  and 
appeal  upon  the  matter  of  assessment. 

Kentucky  R.  Tax  Gases,  116  U.  S.  321, 
831,  29  L.  ed.  414,  416,  6  Sup.  Gt.  Rep.  67 ; 
People's  Nat.  Bank  t.  Marye,  107  Fed.  670; 
Hagar  ▼.  Reclamation  Dist.  Ill  U.  S.  701, 
709,  28  L.  ed.  669,  672,  4  Sup.  Gt.  Rep.  663; 
PitUburgh,  G.  G.  k  St.  L.  R.  Go.  v.  Board 
of  Public  Works,  172  U.  S.  32,  45,  43  L.  ed. 
354,  358,  19  Sup.  Gt.  Rep.  90;  Turpin  v. 
Lemon,  187  U.  S.  51,  68,  47  L.  ed.  70,  74, 
23  Sup.  Gt.  Rep.  20;  Glidden  v.  Harrington, 
189  U.  8.  255,  268,  47  L.  ed.  798,  801,  23 
498 


Sup.  Gt.  Rep.  674;  Hodge  v.  Muscatine 
Gounty,  196  U.  S.  276,  281,  49  L.  ed.  477, 
478,  26  Sup.  Gt  Rep.  237. 

The  invalidity  of  a  part  of  the  act  would 
not  invalidate  the  whole. 

Gooley,  Gonst.  Lim.  7th  ed.  pp.  246,  247, 
260;  Marshall  Field  &  Go.  v.  GUrk,  143  U. 
S.  649,  36  L.  ed.  294,  12  Sup.  Gt.  Rep.  495; 
Huntington  v.  Wortfaen,  120  U.  S.  97,  30 
L.  ed.  688,  7  Sup.  Gt.  Rep.  469. 

Mr.  Henry  W.  Glark  filed  a  memorandum 
for  appellee. 

Mr.  Ghief  Justice  White  delivered  the 
opinion  of  the  court: 

As  a  stockholder  of  the  Union  Pacific 
Railroad  Gompany,  the  appellant  filed  his 
bill  to  enjoin  the  corporation  from  comply- 
ing with  the  income  Ux  provisions  of  the 
Uriff  act  of  October  3,  1913  (§  II.,  chap.  16, 
38  SUt.  at  L.  166).  Because  of  constitu- 
tional questions  duly  arising  the  case  is  here 
on  direct  appeal  from  a  decree  susUining  a 
motion  to  dismiss  because  no  ground  for  re- 
lief was  sUted. 

The  right  to  prevent  the  corporation  from 
returning  and  paying  the  tax  was  based  up- 
on many  averments  as  to  the  repugnancy  .of 
the  sUtute  to  the  Constitution  of  the  United 
SUtes,  of  the  peculiar  relation  of  the  cor- 
poration to  the  stockholders,  and  their  par- 
ticular interests  resulting  from  many  of  tlie 
administrative  provisions  of  the  assailed  act, 
of  the  confusion,  wrong,  and  multiplicity 
[lO]  of  suits  and  the  absence  of  all  means  of 
redress  which  would  result  if  the  corporation 
paid  the  tax  and  complied  with  the  act  in 
other  respecU  without  protest,  as  it  was  al- 
leged it  was  its  intention  to  do.  To  put  out 
of  the  way  a  question  of  jurisdiction  we  at 
once  say  that  in  view  of  these  avermenU 
and  the  ruling  in  PoUock  v.  Farmers'  Loan 
ft  T.  Co.  167  U.  S.  429,  39  L.  ed.  7r>9,  15 
Sup.  Gt.  Rep.  673,  susUining  the  right  of 
a  stockholder  to  sue  to  restrain  a  corpora- 
tion under  proper  averments  from  volun- 
Urily  paying  a  Ux  charged  to  be  unconsti- 
tutional on  the  ground  that  to  permit  ^ucll 
a  suit  did  not  violate  the  prohibitions  of 
§  3224,  Revised  SUtutes  (Corop.  SUt.  1913, 
§  5947),  against  enjoining  the  enforcement 
of  taxes,  \te  are  of  opinion  that  the  con- 
tention here  made  that  there  was  no  juris- 
diction of  the  cause,  since  to  enterUin  it 
would  violate  the  provisions  of  the  Revised 
SUtutes  referred  to,  is  without  merit.  Be- 
fore coming  to  dispose  of  the  case  on  the 
merits,  however,  we  observe  that  the  de- 
fendant corporation  having  called  the  at- 
tention of  the  government  to  the  pendency 
of  the  cause  and  the  nature  of  the  contro* 
versy  and  its  unwillingness  to  volunUrily 
refuse  to  comply  with  the  act  assailed,  the 
United  SUtes,  as  amicus  curie,  has  at  bar 

240  U.  8. 


1915. 


BRUSHABER  ▼.  UNJON  P.  R.  00. 


10-13 


been  heard  both  orally  and  by  brief  for 
the  purpose  of  siutaining  the  decree. 

Aside  from  averments  as  to  citizenship 
and  residence,  recitals  as  to  the  provisions 
of  the  statute,  and  statements  as  to  the 
business  of  the  corporation,  contained  in 
the  first  ten  paragraphs  of  the  bill,  ad- 
vanced to  sustain  jurisdiction,  the  bill  al- 
leged twenty-one  constitutional  objections 
specified  in  that  number  of  paragraphs  or 
subdivisions.  As  all  the  grounds  assert  a 
violation  of  the  Constitution,  it  follows  that, 
in  a  wide  sense,  they  all  charge  a  repug- 
nancy of  the  statute  to  the  16th  Amend- 
ment, under  the  more  immediate  sanction 
of  which  the  statute  was  adopted. 

The  various  propositions  are  so  inter- 
mingled as  to  cause  it  to  be  difficult  to 
classify  them.  We  are  of  opinion,  however, 
[11]  that  the  confusion  is  not  inherent,  but 
rather  arises  from  the  conclusion  that  the 
16th  Amendment  provides  for  a  hitherto 
unknown  power  of  taxation;  that  is,  a 
power  to  levy  an  income  tax  which,  al- 
though direct,  should  not  be  subject  to  the 
regulation  of  apportionment  applicable  to 
all  other  direct  taxes.  And  the  far-reach- 
ing effect  of  this  erroneous  assumption  will 
be  made  clear  by  generalizing  the  many 
contentions  advanced  in  argument  to  sup- 
port it,  as  follows:  (a)  The  Amendment 
authorizes  only  a  particular  character  of 
direct  tax  without  apportionment,  and  there- 
fore if  a  tax  is  levied  under  its  assumed 
authority  which  docs  not  partake  of  the 
characteristics  exacted  by  the  Amendment, 
it  is  outside  of  the  Amendment,  and  is  void 
as  a  direct  tax  in  the  general  constitutional 
sense  because  not  apportioned,  (b)  As  the 
Amendment  authorizes  a  tax  only  upon  in- 
comes "from  whatever  source  derived,"  the 
exclusion  from  taxation  of  some  income  of 
designated  persons  and  classes  is  not  au- 
thorized, and  hence  the  constitutionality  of 
the  law  must  be  tested  by  the  general  pro- 
visions of  the  Constitution  as  to  taxation, 
and  tiius  again  the  tax  is  void  for  want  of 
apportionment,  (c)  As  the  right  to  tax 
"incomes  from  whatever  source  derived" 
for  which  Uie  Amendment  provides  must 
be  considered  as  exacting  intrinsic  uniform- 
ity, therefore  no  tax  comes  under  the  au- 
thority of  the  Amendment  not  conforming 
to  such  standard,  and  hence  all  the  provi- 
sions of  the  assailed  statute  must  once 
more  be  tested  solely  under  the  general 
and  pre-existing  provisions  of  the  Consti- 
tution, causing  the  statute  again  to  be  void 
in  the  absence  of  apportionment,  (d)  As 
tl>e  power  conferred  by  the  Amendment  is 
new  ami  prospective,  the  attempt  in  the 
statute  to  make  its  provisions  retroactively 
apply  is  void  because,  so  far  as  the  retroac- 
tive period  is  concerned,  it  is  governed  by 
•0  L.  ed. 


the  pre-existing  constitutional  requirement 
as  to  apportionment. 

But  it  clearly  results  that  the  proposi- 
tion and  the  contentions  [12]  under  it,  if 
acceded  to,  would  cause  one  provision  of  the 
Constitution  to  destroy  another;  that  is, 
they  would  result  in  bringing  the  provisions 
of  the  Amendment  exempting  a  direct  tax 
from  apportionment  into  irreconcilable  con- 
flict with  the  general  requirement  that  all 
direct  taxes  be  apportioned.  Moreover,  the 
tax  authorized  by  the  Amendment,  beinn 
direct,  would  not  come  under  the  rule  of 
uniformity  applicable  under  the  Constitu- 
tion to  other  than  direct  taxes,  and  thus  it 
would  come  to  pass  that  the  result  of  the 
Amendment  would  be  to  authorize  a  partic- 
ular direct  tax  not  subject  either  to  ap* 
portionment  or  to  the  rule  of  geographical 
uniformity,  thus  giving  power  to  impose 
.a  different  tax  in  one  state  or  states  than 
was  levied  in  another  state  or  states.  This 
result,  instead  of  simplifying  the  situation 
and  making  clear  the  limitations  on  the 
taxing  power,  which  obviously  the  Amend- 
ment must  have  been  intended  to  accom- 
plish, would  create  radical  and  destructive 
changes  ifi  our  constitutional  system  and 
multiply  confusion. 

But  let  us  by  a  demonstration  of  the 
error  of  the  fundamental  proposition  as  to 
the  significance  of  the  Amendment  dispel 
the  confusion  necessarily  arising  from  the 
arguments  deduced  from  it.  Before  coming, 
however,  to  the  text  of  the  Amendment,  to 
the  end  that  its  significance  may  be  de- 
termined in  the  light  of  the  previous  legis- 
lative and  judicial  history  of  the  subject 
with  which  the  Amendment  is  concerned, 
and  with  a  knowledge  of  the  conditions 
which  presumptively  led  up  to  its  adoption, 
and  hence  of  the  purpose  it  was  intended 
to  accomplish,  we  make  a  brief  statement 
on  those   subjects. 

That  the  authority  conferred  upon  Con- 
gress by  §  8  of  article  1  "to  lay  and  col- 
lect taxes,  duties,  imposts  and  excises*'  is 
exhaustive  and  embraces  every  conceivable 
power  of  taxation  has  never  been  questioned, 
or,  if  it  has,  has  been  so  often  authoritative- 
ly declared  as  to  render  it  necessary  only 
to  state  the  doctrine.  And  it  has  also  never 
[13]  been  questioned  from  the  foundation, 
without  stopping  presently  to  determine 
under  which  of  the  separate  headings  the 
power  was  properly  to  be  classed,  that  there 
was  authority  given,  as  the  part  was  includ- 
ed in  the  whole,  to  lay  and  collect  income 
taxes.  Again,  it  has  never  moreover  been 
questioned  that  the  conceded  complete  and 
all-embracing  taxing  power  was  subject,  so 
far  as  they  were  respectively  applicable,  to 
limitations  resulting  from  the  requirements 
of  art.  1,  §  8,  cl.  1,  that  "all  duties,  «»- 


15-16 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebic, 


posts  and  excises  shall  be  uniform  through- 
out the  United  States,"  and  to  the  limita- 
tions of  art  I.,  §  2,  cl.  3,  that  "direct  taxes 
shall    be    apportioned    among    the    several 
states,"  and  of  art  1,  §  9,  cl.  4,  that  "no 
capitation,  or  other  direct,  tax  shall  be  laid, 
unless  in  proportion  to  the  census  or  enu- 
meration hereinbefore  directed  to  be  taken." 
In  fact,  the  two  great  subdivisions  embra- 
cing the  complete  and  perfect  delegation  of 
the  power  to  tax  and  the  two  correlated 
limitations    as   to    such    power    were    thus 
aptly  stated  by  Mr.  Cliief  Justice   Fuller 
in    Pollock    V.    Farmers'    Loan    k    T.    Co. 
157   U.   S.   supra,   at  page  557:      "In   the 
matter  of  taxation,  the  Constitution  recog- 
nizes the  two  great  claiBses  of  direct  and 
indirect  taxes,  and  lays  down  two  rules  by 
which  their  imposition  must  be  governed, 
namely:     The  rule  of  apportionment  as  to 
direct  taxes,  and  the  rule  of  uniformity  as 
to  duties,  imposts,  and  excises."     It  is  to 
be  observed,  however,  as  long  ago  pointed 
out  in  Veazie  Bank  v.  Fenno,  8  Wall.  533, 
541,  19  L.  ed.  482,  485,  that  the  require- 
ments of  apportionment  as  to  one  of  the 
great  classes  and  of  uniformity  as  to  the 
other  class  were  not  so  much  a  limitation 
upon  the  complete  and  all-embracing   au- 
thority to  tax,  but  in  their  essence  were 
simply  regulations  concerning  the  mode  in 
which  the  plenary  power  was  to  be  exerted. 
In   the   whole   history   of   the  government 
down  to  the  time  of  the  adoption  of  the 
16th  Amendment,  leaving  aside  some  con- 
jectures expressed  of  the  possibility  of  a 
tax   lying    intermediate    between    the    two 
great  classes  and  embraced  [14]  by  neither, 
no  question  has  been  anywhere  made  as  to 
the  correctness  of  these  propositions.     At 
the   very   beginning,   however,   there  arose 
differences  of  opinion  concerning  the  criteria 
to  be  applied  in  determining  in  which  of 
the    two   great   subdivisions   a   tax    would 
fall.     Without  pausing  to  state  at  length 
the  basis  of  these  differences  and  the  con- 
sequences which  arose  from  them,  as  the 
whole  subject  was  elaborately  reviewed  in 
Pollock  v.  Farmers'  Loan  &  T.  Co.  157  U. 
S.  429,  39  L.  ed.  759,  15  Sup.  Ct.  Rep.  673, 
158  U.  S.  601,  39  L.  ed.  1108,  15  Sup.  Ct. 
Rep.  912,  we  make  a  condensed  statement 
which  is  in  substance  taken  from  what  was 
said,  in   that  case.     Early  the   differences 
were  manifested  in  pressing  on  the  one  hand 
and  opposing  on  the  other,  the  passage  of 
an  act  levying  a  tax   without  apportion- 
ment on  carriages  "for  the  conveyance  of 
persons,"  and  when  such  a  tax  was  enacted 
the  question  of  its  repugnancy  to  the  Con- 
stitution soon  came  to  this  court  for  de- 
termination.    Hylton  T.  United  States,  8 
Dall.  171,  1  L.  ed.  656.    It  was  held  that 
the  tax  came  within  the  class  of  excises, 
ftOO 


duties,  and  imposts,  and  therefore  did  not 
require  apportionment,  and  while  this  ccm- 
clusion  was  agreed  to  by  all  the  members  of 
the  court  who  took  part  in  the  decision  of 
the  case,  there  was  not  an  exact  coincidence 
in  the  reasoning  by  which  the  conclusion 
was  sustained.    Without  stating  the  minor 
differences,  it  may  be  said  with  substan- 
tial accuracy  that  the  divergent  reasoning 
was  this:     On  the  one  hand,  that  the  tax 
was  not  in  the  class  of  direct  taxes  requir- 
ing apportionment,  because  it  was  not  levied 
directly  on  property  because  of  its  owner- 
ship, but  rather  on  its  use,  and  was  there- 
fore an  excise,  duty,  or  impost;  and  on  the 
other,  that  in  any  event  the  class  of  direct  ^ 
taxes  included  only  taxes  directly  levied  on 
real  estate  because  of  its  ownership.    Put- 
ting out  of  view  the  difference  of  reasoning 
which  led  to  the  concurrent  conclusion  in  the 
Hylton  Case,  it  is  undoubted  that  it  came  to 
pass  in  legislative  practice  that  the  line  of 
demarcation  between  the  two  great  classes 
of  direct  taxes  on  the  one  hand  and  excises, 
duties,    and    [15]    imposts   on   the   other, 
which  was  exemplified  by  the  ruling  in  that 
case,  was  accepted  and  acted  upon.    In  the 
first  place  this'  is  Shown  by  the  fact  that 
wherever  (and  there  were  a  number  of  cases 
of  that  kind)  a  tax  was  levied  directly  on 
real  estate  or  slaves  because  of  ownership, 
it  was  treated  as  coming  within  the  direct 
class  and  apportionment  was  provided  for, 
while  no  instance  of  apportionment  as  to 
any  other  kind  of  tax  is  afforded.     Again 
the   situation   is  aptly   illustrated   by   the 
various  acts  taxing  incomes  derived  from 
property  of  every  kind  and  nature  which 
were  enacted  beginning  in  1861,  and  last- 
ing during  what  may  be  termed  the  Civil 
War  period.    It  is  not  disputable  that  these 
latter  taxing  laws  were  classed  under  the 
head  of  excises,  duties,  and  imposts  because 
it  was  assumed  that  they  were  of  that  char* 
acter    inasmuch    as,    although    putting    a 
tax  burden  on  income  of  every  kind,  includ- 
ing that  derived  from  property  real  or  per- 
sonal, they  were  not  taxes  directly  on  prop* 
erty  because  of  its  ownership.     And  thia 
practical   construction   came  in   theory   to 
be  the  accepted  one,  since  it  was  adopted 
without  dissent  by  the  most  eminent  of  the 
text  writers.     1   Kent,   Com.   254,   256;    1 
Story,  Const.  §   955;   Cooley,  Const.  Lim. 
5th  ed.  ♦480 ;  Miller,  Constitution,  237 ;  Pom. 
Const.  Law,  §  281 ;  1  Hare,  Const.  Law,  249, 
250;    Burroughs,    Taxn.    502;    Ordronaux, 
Constitutional  Legislation,  225. 

Upon  the  lapsing  of  a  considerable  period 
after  the  repeal  of  the  income  tax  laws  re- 
ferred to,  in  1894  [28  Stat,  at  L.  509,  chap. 
349],  an  act  was  passed  laying  a  tax  on 
incomes  from  all  classes  of  property  and 
other  sources  of  revenue  which  was  not  ap* 

240  U.  8« 


1915. 


BRUSHABER  t.  UNION  P.  R.  00. 


15-18 


portioned,  and  which  therefore  was  of  course  t 
assumed  to  come  within  the  classification 
of  excises,  duties,  and  imposts  which  were 
subject  to  the  rule  of  uniformity,  but  not 
to  the  rule  of  apportionment.  The  oonsti- 
tntional  validity  of  this  law  was  challenged 
on  the  ground  that  it  did  not  fall  within  the 
class  of  excises,  duties,  and  imposts,  [16j 
but  was  direct  in  the  constitutional  sense, 
and  was  therefore  void  for  want  of  appor- 
tionment, and  that  question  came  to  this 
court  and  was  passed  upon  in  Pollock  v. 
Farmers'  Loan  k  T.  Co.  157  U.  S.  429.  30  L. 
ed.  750,  15  Sup.  Ct.  Rep.  673,  158  U.  S.  601, 
39  L.  ed.  1108,  15  Sup.  Ct.  Rep.  912.  The 
court,  fully  recognizing  in  the  passage 
which  we  have  previously  quoted  the  all- 
embracing  character  of  the  two  great  clas- 
sifications, including,  on  the  one  hand,  di- 
rect taxes  subject  to  apportionment,  and  on 
the  other,  excises,  duties,  and  imposts  sub- 
ject to  uniformity,  held  the  law  to  be  un- 
constitutional in  substance  for  these  rea- 
sons: Concluding  that  the  classification  of 
direct  was  adopted  for  the  purpose  of  ren- 
dering it  impossible  to  burden  by  taxation 
acccumulations  of  property,  real  or  per- 
sonal, except  subject  to  tho  regulation  of 
apportionment,  it  was  held  that  the  duty 
existed  to  fix  what  was  a  direct  tax  in  the 
constitutional  sense  so  as  to  accomplish 
this  purpose  contemplated  by  the  Consti- 
tution. (157  U.  S.  581.)  Coming  to  consider 
the  validity  of  the  tax  from  this  point  of 
view,  while  not  questioning  at  all  that  in 
common  understanding  it  was  direct  merely 
on  income  and  only  indirect  on  property, 
it  was  held  that,  considering  the  substance 
of  things,  it  was  direct  on  property  in  a 
constitutional  sense,  since  to  burden  an  in- 
come by  a  tax  was,  from  the  point  of  sub- 
stance, to  burden  the  property  from  which 
the  income  was  derived,  and  thus  accom- 
plish the  very  tiling  which  the  provision  as 
to  apportionment  of  direct  taxes  was  adopt- 
ed to  prevent.  As  this  conclusion  but  en- 
forced a  regulation  as  to  the  mode  of 
exercising  power  under  particular  circum- 
stances, it  did  not  in  any  way  dispute  the 
all-embracing  taxing  authority  possessed  by 
Congress,  including  necessarily  therein  the 
power  to  impose  income  taxes  if  only  they 
conformed  to  the  constitutional  regulations 
which  were  applicable  to  them.  Moreover,  in 
addition,  the  conclusion  reached  in  the  Pol- 
lock Case  did  not  in  any  degree  involve  hold- 
ing that  income  taxes  generically  and  neces- 
sarily came  within  the  class  [17]  of  direct 
taxes  on  property,  but,  on  the  contrary, 
recognized  the  fact  that  taxation  on  income 
was  in  its  nature  an  excise  entitled  to  be 
enforced  as  such  unless  and  until  it  was 
concluded  that  to  enforce  it  would  amount 
to  accomplishing  the  result  which  the  re- 
•0  li.  ed. 


quirement  as  to  apportionment  of  direct 
taxation  was  adopted  to  prevent,  in  which 
case  the  duty  would  arise  to  disregard  form 
and  consider  substance  alone,  and  hence 
subject  the  tax  to  the  regulation  as  to  ap- 
portionment which  otherwise  as  an  excise 
would  not  Bippij  to  it.  Nothing  could  serve 
to  make  this  clearer  than  to  recall  that  in 
the  Pollock  Case,  in  so  far  as  the  law  taxed 
incomes  from  other  classes  of  property  than 
real  estate  and  invested  personal  property, 
that  is,  income  from  "professions,  ^ades, 
employments,  or  vocations"  (158  U.  S. 
637),  its  validity  was  recognized;  indeed, 
it  was  expressly  declared  that  no  dispute 
was  made  upon  that  subject,  and  attention 
was  called  to  the  fact  that  taxes  on  such 
income  had  been  sustained  as  excise  taxes 
in  the  past.  Id.  p.  635.  The  whole  law  was, 
however,  declared  unconstitutional  on  the 
ground  that  to  permit  it  to  thus  operate 
would  relieve  real  estate  and  invested  per- 
sonal property  from  taxation  and  "would 
leave  the  burden  of  the  tax  to  be  borne  by 
professions,  trades,  employments,  or  voca- 
tions; and  in  that  way  what  was  intended 
as  a  tax  on  capital  would  remain,  in  sub- 
stance, a  tax  on  occupations  and  labor" 
(id.  p.  637), — ^a  result  which,  it  was  held, 
could  not  have  been  contemplated  by  Con- 
gress. 
This  is  the  text  of  the  Amendment: 
"The  Congress  shall  have  power  to  lay 
and  collect  taxes  on  incomes,  from  what- 
ever source  derived,  without  apportionment 
among  the  several  states,  and  without  re- 
gard to  any  census  or  enumeration/' 

It  is  clear  on  the  face  of  this  text  that 
it  does  not  purport  to  confer  power  to  levy 
income  taxes  in  a  general  sense, — an  author- 
ity already  possessed  and  never  questioned, 
— [18]  or  to  limit  and  distinguish  between 
one  kind  of  income  taxes  and  another,  but 
that  the  .whole  purpose  of  the  Amendment 
was  to  relieve  all  income  taxes  when  im- 
posed from  apportionment  from  a  consid- 
eration of  the  source  whence  the  income 
was  derived.  Indeed,  in  the  light  of  tho 
history  which  we  have  given  and  of  the  deci- 
sion in  the  Pollock  Case,  and  the  ground 
upon  which  the  ruling  in  that  case  was 
based,  there  is  no  «scape  from  the  conclu- 
sion that  the  Amendment  was  drawn  for 
the  purpose  of  doing  away  for  the  future 
with  the  principle  upon  which  the  Pollock 
Case  was  decided;  that  is,  of  determining 
whether  a  tax  on  income  was  direct  not  by 
a  consideration  of  the  burden  placed  on  the 
taxed  income  upon  which  it  directly  oper- 
ated, but  by  taking  into  view  the  burden 
which  resulted  on  the  property  from  which 
the  income  was  derived,  since  in  express 
terms  the  Amendment  provides  that  income 
taxeSi  from  whatever  source  the  inccmne  may 


1&-81 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Tknc, 


be  derired,  ihall  not  be  subject  to  the  regu- 
lation of  apportionment.  From  this  in  sub- 
stance it  indisputably  arises,  first,  that  all 
the  contentions  whidi  we  have  previously 
noticed  concerning  the  assumed  limitations 
to  be  implied  from  the  language  of  the 
Amendment  as  to  the  nature  and  character 
of  the  income  taxes  which  it  authorizes  find 
no  support  in  the  text  and  are  in  irrecon- 
cilable conflict  with  the  very  purpose  which 
the  Amendment  was  adopted  to  accomplish. 
Second,  that  the  contention  that  the  Amend- 
ment treats  a  tax  on  income  as  a  direct 
tax  although  it  is  relieved  from  apportion- 
ment and  is  necessarily  therefore  not  sub- 
ject to  the  rule  of  uniformity  as  such  rule 
only  applies  to  taxes  which  are  not  direct, 
thus  destroying  the  two  great  classifications 
which  have  been  recognized  and  enforced 
from  the  beginning,  is  also  wholly  without 
foundation  since  the  command  of  the 
Amendment  that  all  income  taxes  shall  not 
be  subject  to  apportionment  by  a  considera- 
tion of  the'  sources  from  which  the  taxed  in- 
come may  be  derived  [  19]  forbids  the  appli- 
cation to  such  taxes  of  the  rule  appliei^  in 
the  Pollock  Case  by  which  alone  such  taxes 
were  removed  from  the  great  class  of  ex- 
cises, duties,  and  imposts  subject  to  the 
rule  of  uniformity,  and  were  placed  under 
the  other  or  direct  class.  This  must  be 
unless  it  can  be  said  that  although  the  Con- 
stitution, as  a  result  of  the  Amendment,  in 
express  terms  excludes  the  criterion  of 
source  of  income,  that  criterion  yet  remains 
for  the  purpose  of  destroying  the  classifica- 
tions of  the  Constitution  by  taking  an  ex- 
cise out  of  the  class  to  whidi  it  belongs  and 
transferring  it  to  a  class  in  which  it  cannot 
be  placed  consistently  with  the  require- 
ments of  the  Constitution.  Indeed,  from 
another  point  of  view,  the  Amendment 
demonstrates  that  no  such  purpose  was  in- 
tended, and  on  the  contrary  shows  that  it 
was  drawn  with  the  object  of  maintaining 
the  limitations  of  the  Constitution  and  har- 
monizing their  operation.  We  say  this  be- 
cailse  it  is  to  be  observed  that  although 
from  the  date  of  the  Hyltbn  Case,  because 
of  statements  made  in  the  opinions  in  that 
case,  it  had  come  to  be  accepted  that  direct 
taxes  in  the  constitutional  sense  were  con- 
fined to  taxes  levied  directly  on  real  estate 
because  of  its  ownership,  the  Amendment 
contains  nothing  repudiating  or  challeng- 
ing the  ruling  in  the  Pollock  Case  that  the 
word  "direct"  had  a  broader  significance, 
since  it  embraced  also  taxes  levied  directly 
on  personal  property  because  of  its  owner- 
•ship,  and. therefore  the  Amendment  at  least 
impliedly  makes  such  wider  significance  a 
part  of  the  Constitution, — a  condition  which 
clearly  demonstrates  that  the  purpose  was 
not  to  change  the  existing  interpretation 
1(02 


except  to  the  extent  necessary  to  accom- 
plish the  result  intended;  that  is,  the  pre- 
vention of  the  resort  to  the  sources  from 
which  a  taxed  income  was  derived  in  order 
to  cause  a  direct  tax  on  the  income  to  be  a 
direct  tax  on  the  source  itself,  and  thereby 
to  take  an  income  tax  out  of  the  class  of 
excises,  duties,  and  imposts,  and  place  it 
in  the  class  of  direct  taxes. 

[SO]  We  come,  then,  to  ascertain  the 
merits  of  the  many  contentions  made  in  the 
light  of  the  Constitution  as  it  now  stands; 
that  is  to  say,  including  within  its  terms  the 
provisions  of  the  16th  Amendment  as  cor- 
rectly interpreted.  We  first  dispose  of  two 
propositions  assailing  the  validity  of  the 
statute  on  the  one  hand  because  of  its  re- 
pugnancy to  the  Constitution  in  other  re- 
spects, and  especially  because  its  enactment 
was  not  authorized  by  the  16th  Amendment. 

The  statute  was  enacted  October  3,  1013, 
and  provided  for  a  general  yearly  income 
tax  from  December  to  December  of  each 
year.  Exceptionally,  however,  it  fixed  a 
first  period  embracing  only  the  time  from 
March  1,  to  December  31,  1913,  and  this 
limited  retroactivity  is  assailed  as  repug- 
nant to  the  due  process  clause  of  the  5th 
Amendment,  and  as  inconsistent  with  the 
16th  Amendment  itself.  But  the  date  of 
the  retroactivity  did  not  extend  beyond  the 
time  when  the  Amendment  was  operative, 
and  there  can  be  no  dispute  that  there  was 
power  by  virtue  of  the  Amendment  during 
that  period  to  levy  the  tax,  without  appor- 
tionment, and  so  far  as  the  limitations  of 
the  Constitution  in  other  respects  are  con- 
cerned, the  contention  is  not  open,  since 
in  Stockdale  v.  Atlantic  Ins.  Co.  20  Wall. 
323,  331,  22  L.  ed.  348,  351,  in  susUining 
a  provision  in  a  prior  income  tax  law  which 
was  assailed  because  of  its  retroactive  char- 
acter, it  was  said: 

"The  right  of  Congress  to  have  imposed 
this  tax  by  a  new  statute,  although  the 
measure  of  it  was  governed  by  the  income 
of  the  past  year,  cannot  be  doubted;  much 
less  can  it  be  doubted  that  it  could  impose 
such  a  tax  on  the  income  of  the  current 
year,  though  part  of  that  year  had  elapsed 
when  the  statute  was  passed.  The  joint 
resolution  of  July  4th,  1864  [13  Stat,  at  L. 
417],  imposed  a  tax  of  5  per  cent  upon  all 
income  of  the  previous  year,  although  one 
tax  on  it  had  already  been  paid,  and  no  one 
doubted  the  validity  of  the  tax  or  attempt- 
ed to  resist  it." 

[SI]  The  statute  provides  that  the  tax 
should  not  apply  to  enumerated  organiza- 
tions or  corporations,  such  as  labor,  agricul- 
tural or  horticultural  organizations,  mutunl 
savings  banks,  etc.,  and  the  argument  is 
that  as  the  Amendment  authorized  a  tax  on 
incomes  "from  whatever  source  derived,"  by 

240  U.  S. 


1015. 


BRUSHABER  t.  UNION  P.  R.  00. 


21-23 


implication  it  excluded  the  power  to  make 
these  exemptions.  'But  this  is  only  a  fonn 
of  expressing  the  erroneous  contention  as  to 
the  meaning  of  the  Amendment,  which  we 
haye  already  disposed  of.  And  so  far  as 
this  alleged  illegality  is  based  on  other  pro- 
visions of  the  Constitution,  the  contention 
is  also  not  open,  since  it  was  expressly  con- 
sidered and  disposed  of  in  Flint  t.  Stone 
Tracy  Co.  220  U.  S.  108,  173,  65  L.  ed.  389, 
422,  31  Sup.  Ct  Rep.  342,  Ann.  Cas.  1912B, 
1312. 

Without  expressly  stating  all  the  other 
contentions,  we  summarize  them  to  a  de- 
gree adequate  to  enable  us  to  typify  and 
dispose  of  all  of  them. 

1.  The  statute  levies  one  tax  called  a 
normal  tax  on  all  incomes  of  individuals 
up  to  $20,000,  and  from  that  amount  up,  by 
gradations,  a  progressively  increasing  tax, 
called  an  additional  tax,  is  imposed.  No 
tax,  however,  is  levied  upon  incomes  of  un- 
married individuals  amounting  to  $3,000 
or  less,  nor  upon  incomes  of  married  per- 
aons  amounting  to  $4,000  or  less.  The 
progressive  tax  and  the  exempted  amounts, 
it  is  said,  are  based  on  wealth  alone,  and 
the  tax  is  therefore  repugnant  to  the  due 
process  clause  of  the  5th  Amendment. 

2.  Tlie  act  provides  for  collecting  the  tax 
at  the  source;  that  is,  makes  it  the  duty  of 
corporations,  etc.,  to  retain  and  pay  the 
sum  of  the  tax  on  interest  due  on  bonds 
and  mortgages,  unless  the  owner  to  whom 
the  interest  is  payable  gives  a  notice  that 
he  claims  an  exemption.  This  duty  cast 
upon  corporations,  because  of  the  cost  to 
which  they  are  subjected,  is  asserted  to  be 
repugnant  to  due  process  of  law  as  a  taking 
of  their  property  without  compensation, 
and  we  recapitulate  various  contentions  as 
to  discrimination  against  corporations  and 
against  individuals,  [22]  predicated  on  pro- 
visions of  the  act  dealing  with  the  subject. 

(a)  Corporations  indebted  upon  coupon 
and  registered  bonds  are  discriminated 
against,  since  corporations  not  so  indebted 
are  relieved  of  any  labor  or  expense  in- 
volved in  deducting  and  paying  the  taxes 
of  individuals  on  the  income  derived  from 
bonds. 

(b)  Of  the  class  of  corporations  indebted 
as  above  stated,  the  law  further  discrimi- 
nates against  those  which  have  assumed  the 
payment  of  taxes  on  their  bonds,  since  al- 
though some  or  all  of  their  bondholders  may 
he  exempt  from  taxation,  the  corporations 
have  no  means  of  ascertaining  such  fact, 
and  it  would  therefore  result  that  taxes 
would  often  be  paid  by  such  corporations 
when  no  taxes  were  owing  by  the  individ- 
vals  to  the  government. 

(c)  The  law  discriminates  against  own- 
ers of  corporate  bonds  in  favor  of  individ- ' 
4%  L.  ed. 


ualt  none  of  whose  income  fa  derived  from 
such  property,  since  bondholders  are,  dur- 
ing the  interval  between  the  deducting  and 
the  paying  of  the  tax  on  their  bonds,  de- 
prived of  the  use  of  the  money  so  withheld. 

(d)  Again,  corporate  bondholders  are  dis- 
criminated against  because  the  law  does  not 
release  them  from  payment  of  taxes  on  their 
bonds  even  after  the  taxes  have  been  de- 
ducted by  the  corporation,  and  therefore  if, 
after  deduction,  the  corporation  should  fail, 
the  bondholders  would  be  compelled  to  pay 
the  tax  a  second  time. 

(e)  Owners  of  bonds  the  taxes  on  which 
have  been  assumed  by  the  corporation  are 
discriminated  against  because  the  payment 
of  the  taxes  by  the  corporation  does  not 
relieve  the  bondholders  of  their  duty  to  in- 
clude the  income  from  such  bonds  in  making 
a  return  of  all  income,  the  result  being  a 
double  payment  of  the  taxes,  labor  and 
expense  in  applying  for  a  refund,  and  a 
deprivation  of  the  use  of  the  sum  of  the 
taxes  during  the  interval  which  elapses  b^ 
fore  they  are  ref imded. 

[S3]  3.  The  provision  limiting  the 
amount  of  interest  paid  which  may  be  de- 
ducted from  gross  income  of  corporations 
for  the  purpose  of  fixing  the  taxable  income 
to  interest  on  indebtedness  not  exceeding 
one  half  the  sum  of  bonded  indebtedness 
and  paid-up  capital  stock  is  also  charged  to 
be  wanting  in  due  process  because  discrim- 
inating between  different  classes  ol  corpo- 
rations and  individuals. 

4.  It  is  urged  that  want  of  due  process 
results  from  the  provision  allowing  indi- 
viduals to  deduct  from  their  gross  income 
dividends  paid  them  by  corporations  whose 
incomes  are  taxed,  and  not  giving  such 
right  of  deduction  to  corporations. 

5.  Want  of  due  process  is  also  asserted 
to  result  from  the  fact  that  the  act  allows 
a  deduction  of  $3,000  or  $4,000  to  those  who 
pay  the  normal  tax,  that  is,  whose  incomes 
are  $20,000  or  less,  and  does  not  allow  the 
deduction  to  those  whose  incomes  are  great- 
er t)ian  $20,000;  that  is,  such  persons  are 
not  allowed,  for  the  purpose  of  the  addi- 
tional or  progressive  tax,  a  second  right  to 
deduct  the  $3,000  or  $4,000  which  they  have 
already  enjoyed.  And  a  further  violation 
of  due  process  is  based  on  the  fact  that  for 
the  purpose  of  the  additional  tax  no  sec- 
ond right  to  deduct  dividends  received  from 
corporations  is  permitted. 

6.  In  various  forms  of  statement,  want 
of  due  process,  it  is  moreover  insiated,  arises 
from  the  provisions  of  the  act  allowing  a 
deduction  for  the  purpose  of  ascertaining 
the  taxable  income  of  stated  amounts,  on 
the  ground  that  the  provisions  discriminate 
between  married  and  single  people,  and 
discriminate  between  husbands  and  wives 

BOS 


23-20 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tkkm» 


who  are  living  together  and  those  who  are 
not. 

7.  Discrimination  and  want  of  due  proc- 
ess result,  it  is  said,  from  the  fact  that 
the  owners  of  houses  in  which  they  live  are 
not  compelled  to  estimate  the  rental  value 
in  making  up  their  incomes,  while  those 
who  are  living  in  rented  houses  and  pay 
rent  are  not  allowed,  in  making  up  their 
taxable  income,  to  deduct  rent  which  they 
have  [S4]  paid,  and  that  want  of  due  proc- 
ess also  results  from  the  fact  that  although 
family  expenses  are  not,  as  a  rule,  per- 
mitted to  be  deducted  from  gross,  to  arrive 
at  taxable,  income,  farmers  are  permitted 
to  omit  from  their  income  return  certain 
products  of  the  farm  which  are  susceptible 
of  use  by  them  for  sustaining  their  fami- 
lies during  the  year. 

So  far  as  these  numerous  and  minute,  not 
to  say  in  many  respects  hypercritical,  con- 
tentions are  based  upon  an  assumed  viola- 
tion of  the  uniformity  clause,  their  want  of 
legal  merit  is  at  once  apparent,  since  it  is 
settled  that  that  clause  exacts  only  a  geo- 
graphical uniformity,  and  there  is  not  a 
semblance  of  ground  in  any  of  the  proposi- 
tions for  assuming  that  a  violation  of  such 
uniformity  is  complained  of.  Knowlton  v. 
Moore,  178  U.  S.  41,  44  L.  ed.  969,  20  Sup. 
Ct.  Rep.  747;  Patton  v.  Brady,  184  U.  S. 
008,  022,  40  L.  ed.  713,  ^20,  22  Sup.  Ct. 
Rep.  493;  Flint  v.  Stone  Tracy  Co.  220  U. 
S.  107,  158,  55  L.  ed.  380,  430,  31  Sup.  Ct. 
Rep.  342,  Ann.  Cas.  1912B,  1312;  Billings 
V.  United  States,  232  U.  S.  201,  282,  58  L. 
ed.  590,  005,  34  Sup.  Ct.  Rep.  421. 

So  far  as  the  due  process  clause  of  the 
6th  Amendment  is  relied  upon,  it  suffices  to 
say  that  there  is  no  basis  for  such  reliance, 
since  it  is  equally  well  settled  that  such 
clause  is  not  a  limitation  upon  the  taxing 
power  conferred  upon  Congress  by  the  Con- 
stitution; in  other  words,  that  the  Consti- 
tution does  not  conflict  with  itself  by  con- 
ferring, upon  the  one  hand,  a  taxing  power, 
and  taking  the  same  power  away,  on  the 
other,  by  the  limitations  of  the  due  process 
clause.  Treat  V.  White,  181  U.  S.  204^  45 
L.  ed.  863,  21  Sup.  Ct.  Rep.  Oil;  Patton  v. 
Brady,  384  U.  S.  008,  40  L.  ed.  713,  22 
Sup.  Ct.  Rep.  493 ;  McCray  v.  United  States, 
395  U.  S.  27,  01,  49  L.  ed.  78,  97,  24  Sup. 
Ct.  Rep.  709,  1  Ann.  Cas.  501;  Flint  v. 
Stone  Tracy  Co.  220  U.  S.  307,  158,  55  L. 
ed.  389,  410,  31  Sup.  Ct.  Rep.  342,  Ann. 
Cas.  1912B,  3312;  Billings  v.  United  States. 
232  U.  S.  201,  282,  58  L.  ed.  590,  005,  34 
Sup.  Ct.  Rep.  423.  And  no  change  in  the 
situation  here  would  arise  even  if  it  be  con- 
ceded, as  we  think  it  must  be,  that  this  doc- 
trine would  have  no  application  in  a  case 
where,  although  there  was  a  seeming  exer- 
cise of  the  taxing  power,  the  act  complained 
ft04 


of  waa  80  arbitrary  as  to  constrain  to  the 
conclusion  that  it  was  not  the  exertion  of 
taxation,  but  a  confiscation  of  property; 

that  is,  a  takiiig  [25]  of  the  same  in  viola- 
tion of  the  5th  Amendment;  or,  what  ia 
equivalent  thereto,  was  so  wanting  in  basis 
for  classification  as  to  produce  such  a  gross 
and  patent  inequality  as  to  inevitably  lead 
to  the  same  conclusion.  We  say  this  be- 
cause none  of  the  propositions  relied  upon 
in  the  remotest  degree  present  such  ques- 
tions. It  is  true  that  it  ia  elaborately  in- 
sisted that  although  there  be  no  express 
constitutional  provision  prohibiting  it,  the 
progressive  feature  of  the  tax  causes  it  to 
transcend  the  conception  of  all  taxation 
and  to  be  a  mere  arbitrary  abuse  of  power 
which  must  be  treated  as  wanting  in  due 
process.  But  the  proposition  disregards  the 
fact  that  in  the  very  early  history  of  the 
government  a  progressive  tax  was  imposed 
by  Congress,  and  that  such  authority  was 
exerted  in  some,  if  not  all,  of  the  various 
income  taxes  enacted  prior  to  1894  to  which 
we  have  previously  adverted.  And  over  and 
above  all  this  the  contention  but  disre- 
gards the  further  fact  that  its  absolute 
want  of  foundation  in  reason  was  plainly 
pointed  out  in  Knowlton  v.  Moore,  178  U. 
S.  41,  44  L.  ed.  909,  20  Sup.  Ct.  Rep.  747, 
and  the  right  to  urge  it  was  necessarily 
foreclosed  by  the  ruling  in  that  case  made. 
In  this  situation  it  is,  of  course,  super- 
fluous to  say  tlint  arguments  as  to  the  ex- 
pediency of  levying  such  taxes,  or  of  the 
economic  mistake  or  wrong  involved  in  their 
imposition,  are  beyond  judicial  cognizance. 
Besides  this  demonstration  of  the  want  of 
merit  in  the  contention  based  upon  the  pro- 
gressive feature  of  the  tax,  the  error  in 
the  others  is  equally  well  established  cither 
by  prior  decisions  or  by  the  adequate  bases 
for  classification  which  are  apparent  on  the 
face  of  the  assailed  provisions;  that  is* 
the  distinction  between  individuals  and  cor- 
porations, the  difTerencc  between  various 
kinds  of  corporations,  etc.,  etc.  Ibid.; 
Flint  V.  Stone  Tracy  Co.  220  U.  S.  107, 
158,  55  L.  ed.  389,  410,  31  Sup.  Ct  Rep. 
342,  Ann.  Cas.  3932B,  3312;  Billings  t. 
United  States,  232  U.  S.  201,  282,  58  L. 
ed.  590,  005,  34  Sup.  Ct.  Rep.  421;  First 
Nat.  Bank  v.  Kentucky,  9  Wall.  353,  19  L. 
ed.  701:  Nntionnl  Safe  Deposit  Co.  v.  Stead, 
232  U.  S.  68,  70.  58  L.  ed.  504.  510.  34  Sup. 
Ct.  Rep.  209.  In  fact,  comprehensively  sur- 
veying all  the  contentions  [26]  relied  upon, 
aside  from  the  erroneous  construction  of 
the  Amendment  which  we  have  previously 
disposed  of.  we  cannot  escape  the  conclu- 
sion tliat  they  all  rest  upon  the  mistaken 
theory  that  although  there  be  difl'erences 
between  the  subjects  taxed,  to  difl'erently  tar 
them  transcends  the  limit  of  taxation  and 

240  V.  S. 


mtt. 


FLEITMANN  v.  WELSBACU  STREET  LIGHTINQ  CX). 


26,27 


•momnto  to  a  want  of  due  process,  and  tliat 
where  a  tax  levied  is  believed  by  one  who 
resists  its  enforcement  to  be  wanting  in 
wisdom  and  to  operate  injustice,  from  that 
fact  in  the  nature  of  things  there  arises  a 
want  of  due  process  of  law  and  a  resulting 
authority  in  the  judiciary  to  exceed  its 
powers  and  correct  what  is  assumed  to  be 
mistaken  or  unwise  exertions  by  the  legis- 
lative authority  of  its  lawful  powers,  even 
although  there  be  no  semblance  of  warrant 
in  the  Constitution  for  so  doing. 

We  have  not  referred  to  a  contention 
tliat  because  certain  administrative  powers 
to  enforce  the  act  were  conferred  by  the 
statute  upon  the  Secretary  of  the  Treasury, 
therefore  it  was  void  as  unwarrantedly  dele- 
gating legislative  authority,  because  we 
think  to  state  the  proposition  is  to  answer 
it.  Marshall  Field  &  Co.  t.  Clark,  143  U. 
S.  «49,  36  L.  ed.  294,  12  Sup.  Ct  Rep.  495; 
Buttfield  V.  Stranahan,  192  U.  S.  470,  490, 
48  L.  ed.  525,  535,  24  Sup.  Ct.  Rep.  349; 
Oceanic  Steam  Nav.  Co.  v.  Stranahan,  214 
U.  S.  320,  53  L.  ed.  1D13,  29  Sup.  Ct.  Rep. 
671. 

Affirmed. 

Mr.  Justice  »fcReynol«ls  took  no  part  in 
the  consideration  and  decision  of  this  case. 


[Z7]  WILLIAM  M.  FLEITMANN,  Suing 
on  Behalf  of  Himself  and  All  Other  Stock- 
holders of  the  Consolidated  Street  light- 
ing Company,  Who  Shall  El^t  to  Come 
in  and  Contribute  to  the  Expense  of  the 
Action,  Appt., 

T. 

WELSBACH    STREET   LIGHTING    COM- 
PANY OF  AMERICA.  (No.  146.) 


WILLIAM  M.  FLEITMANN,  Suing  at 
Above,  Appt., 

T. 

ARTHUR  E.  SHAW.     (No.  146.) 

(See  S.  C.  Reporter's  ed.  27-29.) 

Corporations  —  stockbolcler's  suit  — 
recoTcrlnf:  penalty  under  anti*trast 
act  —  right  to  Jury  trial. 

A  stockliolder  may  not  maintain  a  suit 
In  equity  to  recover  for  the  corporation, 
upon  the  latter's  refusal  to  sue,  the  penalty 
of  threefold  damages  under  the  Sherman 
anti-trust  act  of  July  2,  1890  (20  Stat  at 
L.  209,  chap.  047,  Comp.  Stat.  1913,  §  8820), 
from  persons  and  corporations  whom  he 
charges  with  the  ruin  of  his  corporation 
in  pursuance  of  a  monopolistic  combination, 
since  the  right  of  defendants  to  a  jury  trial 
cannot  thus  be  taken  away. 
(For  otber  cases,  see  Corporations.  IX.  d,  2: 
Jnry,  I.  h,  in  Digest  Sop.  Ct.  1908.] 


••  L.  ed. 


[Nos.  145  and  146.] 


Argued  December  17,  1915.     Decided  Jan- 
uary 24,  1910. 

TWO  APPEALS  from  the  United  States 
Circuit  Court  of  Appeals  for  the  Second 
Circuit  to  review  decrees  which  affirmed  de- 
crees of  the  District  Court  for  the  Southern 
District  of  New  York,  dismissing  the  bills 
in  suits  in  equity  brought  by  a  stockholder 
to  recover  for  the  corporation  the  penalty 
of  threefold  damages  under  the  anti-trust 
act  from  persons  and  corporations  whom  he 
charges  with  the  ruin  of  his  corporation 
in  pursuance  of  a  monopolistic  combination. 
Affirmed. 

See  same  case  below,  128  C.  C.  A.  81,  211 
Fed.  103. 

The  facts  are  stated  in  the  opinion. 

Mr.  Henry  It,  Scheuerman  argued  the 
cause,  and,  with  Messrs.  Henry  A.  Wise  and 
Harry  F.  Mela,  filed  a  brief  for  appellant: 

Whenever  a  right  of  action  exists  in 
favor  of  a  corporation,  and  the  latter,  by 
reason  of  its  being  under  the  control  of  the 
very  parties  against  whom  the  right  of 
action  exists,  fails  and  refuses  to  enforce 
it,  any  stockholder,  upon  the  failure  of  his 
bona  fide  attempts  to  procure  corporate 
action,  or  upon  his  showing  that  corporate 
action,  if  taken,  would  not  be  prosecuted  in 
good  faith,  may  maintain  a  suit  in  equity 
to  secure  re(fress  to  the  corporation. 

Dodge  V.  Woolsey,  18  How.  331,  15  L.  ed. 
401;  Hawes  v.  Oakland  (Hawes  v.  Contra 
Costa  Water  Co.)  104  U.  S.  450,  26  L.  ed. 
827;  Delaware  &  H.  Co.  v.  Albany  ft  S.  R. 
Co.  213  U.  S.  435,  63  L.  ed.  862,  29  Sup.  Ct. 
Rep.  540. 

Is  there  any  valid  reason  for  denying  the 
application  of  that  rule  to  a  case  where  the 
cause  of  action  in  favor  of  the  corporation 
arises  under  the  Sherman  anti-trust  law, 
and  thus  making  such  a  case  an  exception 
to  the  general  rule? 

(1)  Is  there  any  reason  based  on  the  let* 
ter  of  the  statute? 

(2)  Is  there  any  reason  based  on  prece- 
dent? 

(3)  Is  there  any  reason  based  upon  the 
general  principles  underlying  stockholders* 
suits? 

Alexander  v.  Central  R.  Co.  3  Dill.  487, 
Fed.  Cos.  No.  166;  Morgan  v.  Kansas  P.  R. 
Co.  21  Blatchf.  134,  15  Fed.  55;  Ervin  v. 
Oregon  R.  &  Nav.  Co.  23  Blatchf.  517,  27 
Fed.  625;  Backus  v.  Brooks,  115  C.  C.  A. 
364,  195  Fed.  452;  Farmers*  Loan  &  T.  Co. 
V.  New  York  &  N.  R.  Co.  150  N.  Y.  410,  34 
L.RA.  76,  55  Am.  St.  Rep.  689,  44  N.  E. 
1043;  Dodge  t.  Woolsey,  18  How.  331,  15 
L.  ed.  401;  Kavanaugh  ▼.  Commonwealth 
Trust  Co.  181  N.  Y.  121,  73  N.  E.  662. 

(4)  Is  there  any  reason  based  on   the 

50ft 


27,  S8                      SUPREME  COURT  OF  THE  UNITED  STATES.  Ocr.  Tw, 

aireanuUnM  that  the  right  of  setion  in  '  110  U.  a  347-362,  30  L.  ed.  451-4fiS,  7  Sapu 

favor  of  the  corporatioD  is  one  at  common  Ct.  Rep.  24D;  WUtabead  v.  Shattuck,  188 

law  for  money  damagesT  U.  S.  147-151,  34  L.  ed.  ST3,  874,  11  Snp. 

.£tna  Ina.  Co.  v.  Albany  &.  S.  R.  Co.  160  Ct.  Rep.  270;  Scott  v.  Neely,  140  U.  S.  10«- 

Fed.  132,  affirmed  on  opinion  below  in  OS  113,  35  L.  ed.  358,  II   Sup.   Ct.  Rep.   712; 

C.  C.  A.  303.  170  Fed.  1019;  Delaware  &,  H.  Ciuriden  v.  Middleton,  232  U.  S.  633,  636,  08 

Oo.  Y.  Albany  &.  S.  R.  Co.  215  U.  S.  SOI,  54  L.  ed.  765,  767,  34  Sup.  Ct.  Rep.  4G8;  Scott 

L.  ed.  344,  30  Sup.  a.  Rep.  401.  v.  Armstrong,  146  U.  S.  40B,  512,  36  L.  «d. 

(5)  la  there  any  reason  based  on  the  1050,  1063,  13  Sup.  a.  Rep.  148;  Lindsay 
circumstance  that  the  right  of  the  corpo-  v.  Firat  Nat.  BanV,  166  U.  S.  486,  493,  39 
ration  ia  a  statutory  cause  of  action  T  L.  ed.  506,  508,  16  Sup.  Ct.  Rep.  472;  Gray 

Dodge  T.  Woolaey,  18  How.  331,  15  L.  ed.  v.  Grand  Trunk  Western  R.  Co.  B4  G.  C.  A. 

401.  392,  166  Fed.  741. 

(6)  la  there  any  reasoo  based  on  ex- 
pediency T  Mr.  Justice  Holmes  delivered  the  opinion 

Minnesota  t.  Northern  Securities  Co.  194  of  the  court: 

U.  S.  48,  70,  71,  48  L.  ed.  S70,  880,  881,  24  This   ia   a   bill   by   a   stoclcholder   of   tha 

Sup.  Ct.  Rep.  6B8.  Consolidated     Street     Lighting     Company, 

The  object  of  the  statute  was  to  provide  against  that  company  and  a  number  [28] 

a  right  of  action   for  such  injuries,  which  of    other   corporations   and   individuah,   to 

did   not   eiist   at   common    Uw    (Addyston  ^        ^  ^[,6  defendants  other  than  his  own 

Hpe  &  Steel  Co.  y.  United  States.  46  L.R.A.  ^,„p^„y  to  pay  to  the  latter  threefold  dam- 

122   29  C.  C.  A    141,  64  US   App.  723,  85  ^^Jj^,,  the  Sherman  act.     July  2,  18TO. 

l""^  ^V"o«;  \!^''  **,  ''■  "t,  !''■  '"  ^^"P-  «T-  8  7,  26  Sut.  at  L.  200,  210. 
Sup.  Ct.  Rep.  n«).  It  was  designed  to  pro-  ^^  ^^^  g^^g  According 
mote  commerce,  and  to  protect  those  who  __  ^;  „  ..  '  "  .u  ,  ,  j  .  * 
may  have  invested  their  capital  Jn  commer-  *^*''!  all^gat.ons  the  other  defendants  eoii- 
cial  enterpriaea  from  being  oppressed  and  "P'^""  ^  '""^'"^  ''"'  hr,>„i,e«,  of  municipal 
despoiled  by  unlawful  combinations  in  vio-  ''ehlmg,  etc.,  throughout  the  Lnited  SUtes, 
lation  of  the  act.  The  appellees  seek  such  ""d  in  pursuance  of  their  conspiracy  pro- 
a  eonstruetion  of  the  act  as  would  defeat  """e^  their  agent  to  purchase  from  the  for- 
the  intent  of  Congress  and  the  object  of  ™e''  "w"*"  »  majority  of  the  stock  m  the 
the  legialatioD.  plaintiff's  company,  and  then  proceeded  to 
ruin  it  and  drive  it  out  of  business  by  mis- 
Mr.  Edward  W.  Hatch  argued  the  cause,  conducting  its  affaire.  The  plaintiff  has  de- 
and,  with  Mr.  WillUm  F.  Sheehan,  filed  a  ^gnded  of  his  company  and  its  officers  to 
brief  for  appelleea:  institute  proceedings,  but  they  have  refused 
The  courta  below  did  not  err  in  holding  ^he  bill  waa  dismissed  by  the  district  court 
that  the  bill  of  complaint  does  not  set  (,n  motion  of  the  appellees  in  the  two  ap- 
forth  a  good  cause  of  action  in  equity.  „,|g  before  this  court,  and  the  decree  was 
Blindell  V.  Hagan,  54  Fed.  40;  Pidcock  v.  ^f^^^^  by  the  circuit  court  of  appeals. 
Harrington,  64  Fed.  821;  Metcalf  v.  Amer-  j^g  c  C  A  31  211  Fed  103 
ican  School.Furniture  Co.  108  Fed.  009,  The  biil  allegU  in  terms  that  it  is  brought 
affirmed  without  opinion  m  51  C.  C.  A.  500,  ^^  ^„^„  threefold  the  damages  alleged; 
IK  Fed  1020,  Southern  Indiana  Ex().  Co.  „  ^^^^  ^^  ,„,h  damages  waT  the  d^.; 
T.  United  States  Exp.  Co.  98  Fed^  B59,  af-  ^     ^_     „,,   „„,             ?„„   „„,   „„;     ^ 

Srv''/^or"r>''''''«''  f  i;^  ^.V^  »«   «PP"^'   *»  the  cirLit  court  of  appeala 

82  Fed   1022;  Irving  v   Neal,  209  Fed.  477;  ^„  holding  that  such  a  suit  in  equity  Lid 

Pollard  V.  Bailey,  20  WaU    520.  627,  22  L.  ^^,  be  maintained  by  a  single  stockholder; 

ed.  376,  378;  Greer,  M.  ft  Cd   v.  Stoller   77  ^^at  was  the  only  question  dealt   with  by 

«*^-,«i  iTol.    T"^"  Z    F  ■  *  J*l^f  "">  district  court,  and  that  was  the  ground 


Co.  166  Fed.  820;  Loeb  v.  Eastman  Kodak 


of  decision  in  the  circuit  court  of  appeals. 


Co.  106  a  C.  A.  142,  183  Fed.  704;   Corey    ^  ,,,„     j,  j,,^  ^nly  questior.  

T.  Independent  Ice  Co.  207  F«l.  469;  United  qj  ^/„„^  ^be  claim  set  up  is  tbat  of  the 

Copper  Securities  Co.  v.  Amalgamated  Cop-  („          tion   alone,   and   if   the   corporation 

per  Co.  L.RA.  -,  -,  139  C.  C.  A.  13.  223  „„^  proceeding  directly  under  the  aUtuta 

Fed.  421;   HUnois  C.  R.  Co.  v.  Adams,  180  „„   ^^^    ^an    doubt   that    its   onlv    remedy 

U.  S.  28,  34,  36,  46  L.  ed.  410,  412,  413,  21  ^^uij  be  at  law.     Therefore  the  inquiry  at 

Sup.    Ot.    Rep.    251;    Hawea    r.    Oakland  once  arises  why  the  defendants'  right  to  a 

(Hawea  t.  Contra  CosU  Water  Co.)    104  jury  trial  should  he  Ukeo  away  because 

U.  S.  450-460,  26  L.  ed.  827-«32;  Dodge  v.  the   present   plaintiff   cannot   persuade   the 

Woolaey,  18  How.  331.  341,  16  L.  ed.  401,  only  party  having  a  cause  of  action  to  sue, 

404;  Dowell  v.  Mitchell.  106  U.  S.  430-432,  —how  the  liability  which  ia  the  principal 

20  L.  ad.  1142,  1143;  Buzard  t.  Houston,  matter  can  be  converted  into  an  incident 

sam  a40  V.  s. 


191S.    MT.  VERNONWOODBERRY  COTTON  DUCK  CO.  t.  ATJ^BAMA  L  P.  CO. 2S-30 


of  tlie  plaintififs  domestic  difficulties  with 
the  eompany  that  has  been  wronged. 

No  doabt  there  are  cases  in  which  the  na- 
ture of  the  [29]  right  asserted  for  the  com- 
pany, or  the  failure  of  the  defendants  con- 
cerned  to   insist   upon    their   rights,   or   a 
different  state  system,  has  led  to  the  whole 
matter  being  disposed  of  in  equity;  but  we 
agree  with  the  courts  below  that  when  a 
penalty  of  triple  damages  is  sought  to  be 
inflicted,  the  statute  should  not  be  read  as 
attempting  to  authorize  liability  to  be  en- 
forced otherwise  than  through  the  verdict 
of  a  jury  in  a  court  of  common  law.     On 
the  contrary,  it, plainly  provides  the  latter 
remedy,  and  it  provides  no  other.     Pollard 
▼.  Bailey,  20  Wall.  620,  22  L.  ed.  376.    Even 
the  act  of  October  15,  1014,  chap.  323,  §  16, 
38  8Ut.  at  L.  730,  737,  passed  since  this 
euit  was  begun,  does  not  go  farther  in  terms 
than  to  give  an  injunction  to  private  per- 
sons aofRinst  threatened  loss. 

It  now  is  suggested,  evidently  as  an  after- 
thought since  the   decision   in   the  district 
<^urt,  that  there  might  be  a  decree  directing 
the  corporation  to  sue,  or,  if  it  fails  to  do 
^o«    permitting  the   plaintiff  to   sue   in   its 
lanie  and  on  its  behalf.    But  the  bill  is  not 
'earned  for  that  purpose,  as  the  court  below 

I^ccree  alTirmed. 

^Ir.  Justice   McKenna  and  Mr.  Justice 
^**iiey  dissent. 


)]  MT.  VERNON-WOODBERRY  COT- 
TON DUCK  COMPANY  et  al.,  Plffs.  in 
Krr., 

T. 

AI-^BAMA  INTERSTATE  POWER  COM 

PANY. 

(See  S.  C.  Reporter's  ed.  30-33.) 

^■*»'or  to  stnte  court  —  final  Judsrment. 

1.  A  judgment  of  the  highest  court  of 
*.  •tate,  finally  disposing  of  a  writ  of  pro- 
»!^>ition  sued  out  under  Ala.  Code  3907,  §§ 
48e4-4867,  4872,  to  prevent  an  inferior 
^^rt  from  taking  jurisdiction  of  an  ac- 
•*^H,  is  a  final  judgment,  within  the  mean- 
^"^^  of  the  Judicial  Code,  §  237,  governing 


writs  of  error  to  state  courts,  although  such 
judgment  does  not  determine  the  m^ts  of 
the  principal  suit. 

[For  other  cases,  see  Appeal  and  Error,  I.  d, 
in  Digest  Sup.  Ct.  1008.] 

Error  to  atate  court  —  following  deoi- 
ttion  below. 

2.  The  Federal  Supreme  Court  on  writ 
of  error  to  a  state  court  to  review  a  judg- 
ment dismissing  a  writ  of  prohibition  to 
prevent  a  probate  court  from  taking  juris- 
diction of  condemnation  proceedings  will 
follow  the  rulings  of  the  state  court  upon 
such  objections  urged  in  support  of  the  writ 
of  prohibition  as  the  asserted  invalidity  of 
the  state  condemnation  laws  under  the  state 
Constitution,  and  the  irregularity  of  the 
proceedings  under  those  laws,  and  the  in- 
sufliciency  of  the  condemnation  petition. 
[For  other  cases,  see  Appeal  and  Error,  21.*i4- 

2163,  2209-2226.  in  Digest  Sup.  Ct.  1008.] 

Eminent  domain  —  public  use  —  dis- 
tribution of  power  produced  by  water 
as  motive  force. 

3.  The  manufacture,  supply,  and  sale 
to  the  public  of  power  produced  by  water 
as  a  motive  force  is  a  public  use  for  which 
land,  water,  and  water  rights  may,  con- 
sistently with  U.  S.  Const.,  14th  Amend., 
be  condemned. 

[For  other  cases,  see  Eminent  Domain,  I.  d, 
In   Digest  Sup.   Ct.    1908.1 

Eminent  domain  —  Jurisdiction  —  va- 
lidity of  state  statute. 

4.  Neither  the  jurisdiction  of  a  state 
probate  court  over  condemnation  proceed- 
ings instituted  by  a  corporation  organized 
to  manufacture,  supply,  and  sell  to  the 
public  power  produced  by  water  as  a  motive 
force,  nor  the  constitutionality  of  the  state 
laws  authorizing  the  proceedings,  are  af- 
fected because  the  rights  sought  to  be  con- 
demned are  below  instead  of  above  the  con- 
templated dam,  nor  because  the  corpora- 
tion, before  condemning  rights,  must  have 
obtained,  by  other  means,  at  least  an  acre 
on  either  side  of  the  stream  for  a  dam  site, 
nor  because  the  proceedings  may  be  begun 
before^the  dam  is  built. 

[For  other  cases,  see  Eminent  Domain,  L  a, 
in  Dlflrest  Sup.  Ct.  1908. J 

Constitutional  law  —  equal  protection 
of  the  laws  —  exceptions  in  condem- 
nation statute. 

5.  Excepting  from  the  eminent  domain 
powers  conferred  by  state  law  upon  corpora- 
tions organized  to  manufacture,  supply,  and 
sell  to  the  public  power  produced  by  water 
as  a  motive  force,  private  residences,  lands 
of  other  corporations  having  similar  powers, 


^OTE. — On  the  general  subject  of  writs  of 
♦y^nr  from  United  States  Supreme  Court  to 
•^le  courts — sec  notes  to  Martin  v.  Hunter, 
*  t^  ed.  U.  S.  97;  Hamblin  v.  Western  I^nd 
^.  37  L.  cd.  U.  S.  267;  Re  Bucharan,  39 
Y  ^'  ^'-  ^.  884;  and  Kipley  v.  Illinois,  42 
^  ed.  U.  S.  n08. 

On  what  questions  the  Federal  Supreme 
^Urt  will  consider  when  reviewing  the 
r^dgments    of    state    courts — see    note    to 

Miasouri  ex  rel.  Hill  v,  Dockery,  63  L.R.A. 

671. 

••  li.  ed. 


As  to  what  judgments  or  decrees  are  final 
for  purposes  of  review — see  notes  to  Gibbons 
V.  Ogden,  6  L.  ed.  U.  S.  302,  and  Schlosser 
V.  Hemphill,  49  L.  ed.  U.  S.  1001. 

As  to  what  is  a  public  purpose  which  will 
justify  the  power  of  eminent  domain — see 
notes  to  Pittsburg  W.  &  K.  R.  Co.  v.  Ben- 
wood  Iron  Works,  2  L.R^.  680;  Barre 
R.  Co.  V.  Montpelier  &  W.  Riyer  R.  Go.  4 
L.R.A.  785;  and  Sweet  v.  Rechd,  40  L.  ed. 
U.  S.  188. 

Generally,  as  to  judicial  powec  q^«c  t!^^ 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Temup 


and  cotton  factories,  subject  to  the  taking 
of  the  ^excess  of  water  over  that  in  actual 
use>  or*  capable  of  use,  at  normal  stages  of 
the  stream,  is  too  plainly  reasonable  to 
come  within  the  condemnation  of  the  14th 
Amendment  to  the  Federal  Constitution. 
[For  other  cases,  see  Constitutional  Law,  lY. 
a,  1,  in  Diirest  Sup.  Ct  1008.1 

[No.   200.] 

Submitted  January  10,  1016.    Decided  Jan- 
uary 24,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Alabama  to  review  a  judgment 
which,  on  an  appeal  from  the  Circuit  Court 
of  Tallapoosa  County,  in  that  state,  dis- 
missed a  writ  of  prohibition  to  prevent  the 
Probate  Court  of  that  county  from  taking 
jurisdiction  of  condemnation  proceedings. 
Affirmed. 

See  same  case  below,  186  Ala.  622,  65 
So.  287. 

The  facts  are  stated  in  the  opinion. 

Messrs.  H.  N.  Randolph  and  Edwin  6. 
Bactjer  submitted  the  cause  for  plaintiffs 
in  error: 

Eminent  domain  statutes  are  strictly 
construed. 

Lewis,  Em.  Dom.  3d  ed.  If  388;  New  York 
&  H.  R.  Co.  V.  Kip,  46  N.  Y.  546,  7  Am.  Rep. 
385;  Re  Poughkcepsic  Bridge  Co.  108  N.  Y. 
491,  15  N.  E.  601;  15  Enc.  Law  &  Proc.  567; 
United  SUtes  v.  Raucrs,  70  Fed.  748; 
Cooley,  Const.  Lim.  p.  61;  Mills,  Em.  Dom. 
•f  48;  McElroy  v.  Kansas  City,  21  Fed.  260; 
Binney's  Case,  2  Bland,  Ch.  09;  Ex  parte 
Smith,  23  Ala.  94;  Sadler  v.  Langham,  34 
Ala.  311;  Ex  parte  Hill,  38  Ala.  429;  Ex 
parte  Stickney,  40  Ala.  160;  Bottoms  v. 
Brewer,  64  Ala.  288;  Ex  parte  Lyon,  60 
Ala.  650;  Nashville,  C.  &  St.  L.  R.  Co.  v. 
Hobbs,  120  Ala.  600,  24  So.  933;  Biking- 
ham  R.  &  Electric  Co.  v.  Birmingham  Trac- 
tion Co.  121  AU.  479,  25  So.  777;  Hobbs  v. 
Nashville,  C.  &  St.  L.  R.  Co.  122  AU.  602,  82 
Am.  St.  Rep.  103,  26  So.  139;  Ex  parte 
State,  150  Ala.  489,  10  L.RA.(N.S.)  1129, 
124  Am.  St.  Rep.  79,  43  So.  490;  Moore  v. 
Wright,  34  Ala.  311;-McCulley  v.  Cunning- 
ham, 96  Ala.  583,  11  So.  694. 


The  authority  must  be  strictly  pursued. 

Lewis,  Em.  Dom.  f  387;  DarrOw  v.  Chi- 
cago, L.  S.  &  S.  a  R.  Co.  169  Ind.  99,  81 
N.  E.  1081;  State,  Vreeland,  Prosecutor,  v. 
Jersey  Qty,  54  N.  J.  L.  49,  22  Atl.  1052. 

The  due  and  orderly  enactment  of  law 
is  intimately  and  directly  related  to  due 
process. 

Cooley,  Const.  Lim.  7th  ed.  pp.  186,  259^ 
506;  Lewis,  Era.  Dom.  3d  ed.  §  409,  p.  738. 

It  follows  that  the  power  conferred  upon 
the  legislature  to  make  laws  cannot  be  dde- 
gated  by  that  department  to  any  other 
body  or  authority. 

Cooley,  Const.  Lim.  7th  fd,  p.  163. 

Applying  this  principle,  the  supreme 
court  of  Oregon,  in  a  case  similar  in  some 
respects  to  the  one  at  bar,  held  that  the 
legislature  cannot  delegate  to  code  commis- 
sioners the  power  to  amend  the  laws  of  the 
state. 

State  V.  Gaunt,  13  Or.  115,  9  Pac  55. 

Whether  or  not  the  use  for  which  prop- 
erty is  sought  to  be  condemned  is  a  public 
use  is  a  question  of  law,  and  not  of  fact. 

1  Lewis,  Em.  Dom.  dd  ed.  §  251,  p.  497» 
and  cases  cited  in  note  8;  London  v.  Sample 
Lumber  Co.  91  Ala.  606,  8  So.  281;  Sadler 
V.  Langham,  34  Ala.  326. 

A  legislature  has  no  power,  in  any  case, 
to  take  the  property  of  one  individual  and 
pass  it  over  to  another,  without  reference 
to  some  use  to  which  it  is  to  be  applied 
for  the  public  benefit. 

Cooley,  Const.  Lim.  6th  ed.  p.  651,  7th 
ed.  p.  764.  See  also  Lewis,  Em.  Dom.  §  250 ; 
New  York,  N.  H.  &  H.  R.  Co.  v.  Offield,  77 
Conn.  417,  59  Atl.  510;  Arnsperger  v.  Craw- 
ford, 101  Md.  247,  70  L.RA.  497,  61  AtL 
413;  Re  Eureka  Basin  Warehouse  &  Mfsr. 
Co.  96  N.  Y.  44 ;  Re  Niagara  Falls  &  W.  R. 
Co.  108  N.  Y.  375,  15  N.  E.  420;  Re  Split 
Rock  Cable  Road  Co.  128  N.  Y.  408,  28 
N.  E.  506;  Healy  Lumber  Co.  v.  Morris,  33 
Wash.  490,  63  L.RA.  820,  99  Am.  St.  Rep. 
964,  74  Pac.  681 ;  Re  Tuthill,  163  N.  Y.  133, 
49  LJIJL  781,  79  Am.  St.  Rep.  574,  57  N.  E. 
303. 

This  statute  restricts  to  an  exceedingly 
limited  class  the  corporations  (i.  e.,  cotton 


right  of  eminent  domain — see  note  to  Graf- 
ton V.  St  Paul,  M.  &  M.  R.  Co.  22  L.R.A. 
(N.S.)  1. 

As  to  whether  generation  of  electrical 
power  by  private  corporation  is  a  public 
use — see  notes  to  State  ex  rel.  Tacoma  In- 
dustrial Co.  V.  White  River  Power  Co.  2 
L.R.A.(N.8.)  842,  and  Walker  t.  Shasta 
Power  Co.  19  L.R.A.(N.S.)  726. 

On  effect  of  offer  to  serve  public  on  right 
to  resort  to  eminent  domain  in  aid  of  at- 
tempt to  transmute  water  power  into  elec- 
tricity for  sale — see  note  to  Jones  t.  North 
Georgia  Electric  Co.  6  LJEtJL(NJ3.)  122. 
508 


On  the  duty  to  serve  public  as  affecting 
liability  of  public  utility  for  temporary  in- 
terference with  water  rights — see  note  to 
Taylor  v.  Indiana  &  M.  Electric  Co.  L.R.A. 
1915E,  294. 

On  who  may  raise  objection  tliat  state 
statute  contains  an  unconstitutional  dis- 
crimination— see  note  to  Pugh  v.  Pugh,  38 
L.R.A.(N.S.)  954. 

On  constitutional  equality  of  privileges, 
immunities,  and  protection,  generalljp — see 
note  to  Louisville  Safety  Vault  &  T.  Co.  ▼• 
Louisville  &  N.  R.  Co.  14  L.RA..  579. 

2 JO  U.  8. 


ltl».    MT.  VERNONWOODBERRY  COTTOX  DUCK  CO.  v.  ALABAMA  I.  P.  CO. 


factories  owned  by  corporations  possessing 
lands,  hydraulic  structures,  water  or  water 
riglita  in  excess  of  what  is  actually  in  use 
or  may  be  used  at  normal  stages  of  the 
atream)  whose  property  can  be  condemned. 
Tliia  is  a  purely  arbitrary  classification  of 
the  kind  of  cotton  mill  corporations  whose 
property  rights  may  be  condemned,  and 
denies  to  such  corporations  the  equal  pro- 
tection of  the  law  guaranteed  by  the  14th 
Amendment. 

Duncan  y.  Missouri,  152  U.  S.  377,  382,  38 
L.  ed.  485,  487,  14  Sup.  Ct.  Rep.  570;  Gulf. 
C  A  S.  F.  R.  Co.  T.  Ellis,  166  U.  S.  150,  156, 
159»  160,  166,  41  L.  ed.  666,  668-671,  17  Sup. 
Ct.  Rep.  265;  Cooley,  Const.  Lim.  7th  ed. 
561  et  seq.;  Cotting  v.  Kansas  City  Stock 
Yards  Co.  (Cotting  v.  Godard)  183  U.  S.  79, 
46  L.  ed.  92,  22  Sup.  Ct!  Rep.  30;  Connolly 
▼.  Union  Sewer  Pipe  Co.  184  U.  S.  540,  660, 
661,  46  L.  ed.  679,  690,  22  Sup.  Ct.  Rep. 
431. 

It  is  a  denial  of  due  process  to  tmdertake 
to  condemn  property  in  a  court  wholly 
without  jurisdiction  of  such  proceedings. 

Cooley,  Const.  Lim.  7th  ed.  p.  760;  2 
Lewis,  Em.  Dom.  3d  ed.  §  865;  Richland 
School  Twp.  V.  Overmyer,  164  Ind.  382,  73 
N.  E.  811;  Re  Poughkeepsie  Bridge  Co.  108 
N.  Y.  490,  15  N.  E.  601. 

A  judgment  of  the  highest  court  of  a 
state  jn  a  proceeding  for  a  prohibition  is  a 
••final"  judgment  in  a  "suit,"  from  which  a 
writ  of  error  will  lie  to  this  court. 

Weston  V.  Charleston,  2  Pet.  449,  7  L.  ed. 
481;  Colorado  Eastern  R.  Co.  v.  Union  P.  R. 
Co.  36  C.  C.  A.  263,  94  Fed.  312;   Tippe- 
canoe County  V.  Lucas,  93  U.   S.  108,  23 
^  ed.   822;    Bostwick   v.   Brinkerhoff,   106 
^.  8.  3,  27  L.  ed.  73;  Haseltine  v.  Central 
^»t.  Bank,  183  U.  S.  130,  46  L.  ed.  117,  22 
Sup.  Ct.  Rep.  49;  Missouri  ft  K.  I.  R.  Co.  v. 
^iathe,  222  U.  S.  185,  66  L.  ed.  155,  32  Sup. 
^-   Rep.  46;  Louisiana  Nav.  Co.  v.  Oyster 
^tximission,  226  U.  S.  99,  67  L.  ed.  138,  33 
^'Jp.  a.  Rep.  78;  Cook  v.  Cook,  18  FU.  636; 
-^tlanta  v.  First  Methodist  Church,  83  Ga. 
*^0,  10  S.  E.  231. 

^essrs.  Tliomas  W.  Martin  and  Ray 
'^^tshton  submitted  the  cause  for  defend- 
•*^^  in  error.  Mr.  Lawrence  Macfarlane 
^^  on  the  brief: 

Many  of  the  questions  which  are  sug- 

f^%ted  by  the  assignments  of  error,  as  well 

*•  by  the  brief  for  the  plaintiffs  in  error, 

•r*  not  open  here. 
Rasmussen  v.  Idaho,  181 U.  S.  198, 46  L.  ed. 

820,  21  Sup.  Ct.  Rep.  594 ;  United  States  v. 

Jones,  109  U.  S.  513,  27  L.  ed.  1015,  3  Sup. 

Ct.  Rep.   346;    Strickley   v.   Highland   Boy 

Gold  Min.  Co.  200  U.  S.  627,  60  L.  ed.  681, 

26  Sup.  Ct.  Rep.  301,  4  Ann.  Cas.  1174; 

Leeper  v.  Texas,  139  U.  S.  462,  36  L.  ed. 

•0  li.  ed. 


225,  11  Sup.  Ct.  Rep.  677;  Re  Duncan,  130 
U.  S.  449,  35  L.  ed.  219,  11  Sup.  a.  Rep. 
673;  Long  Island  Water  Supply  Co.  t. 
Brooklyn,  166  U.  S.  685,  41  L.  ed.  1165,  17 
Sup.  Ct.  Rep.  718;  Smith  y.  Jennings,  206 
U.  S.  276,  51  L.  ed.  1061,  27  Sup.  Ct.  Rep. 
610. 

The  right  of  eminent  domain  antedates 
constitutiops,  and  is  an  incident  of  sover- 
eignty inherent  in  and  belonging  to  every 
sovereign  state. 

United  States  v.  Jones,  109  U.  S.  613,  27 
L.  ed.  1016,  3  Sup.  Ct.  Rep.  346;  Searl  v. 
School  Dist.  133  U.  S.  653,  83  L.  ed.  740,  10 
Sup.  Ct.  Rep.  374. 

All  of  the  elements  which  enter  into  the 
value  of  the  property  to  be  taken  are  em- 
braced within  the  term  ''just  compensa- 
tion." 

Searl  v.  School  Dist.  supra;  United  States 
V.  Chandler-Dunbar  Water  Power  Co.  229 
U.  S.  53,  57  L.  ed.  1063,  33  Sup.  Ct.  Rep. 
667 ;  New  York  v.  Sage,  239  U.  S.  57,  ante, 
143,  36  Sup.  Ct.  Rep.  25;  Alabama  C.  R.  Co. 
V.  Muagrove,  169  Ala.  424,  53  So.  1009; 
United  States  v.  Gettysburg  Electric  R.  Co. 
160  U.  S.  668,  40  L.  ed.  576,  16  Sup.  Ct. 
Rep.  427;  Alabama  Power  Co.  v.  Garden, 
189  Ala.  384,  66  So.  596;  McEachin  v.  Tus- 
caloosa, 164  Ala.  263,  51  So.  153. 

The  legislature  may  classify  subjects  of 
condemnation. 

Magoun  v.  Illinois  Trust  &  Sav.  Bank, 
170  U.  S.  283,  42  L.  ed.  1037,  18  Sup.  a. 
Rep.  594;  Missouri,  K.  &  T.  R.  Co.  v.  May, 
194  U.  S.  267,  48  L.  ed.  971,  24  Sup.  Ct. 
Rep.  638. 

The  state  may  authorize  in  condemna- 
tion cases  the  taking  possession  prior  to 
the  final  determination  of  the  amount  of 
compensation,  and  payment  thereof. 

Cherokee  Nation  v.  Southern  Kansas  R. 
Co.  135  U.  S.  641,  34  L.  ed.  295,  10  Sup.  Ct. 
Rep.  965;  Sweet  v.  Rechel,  159  U.  S.  380, 
40  L.  ed.  188,  16  Sup.  Ct.  Rep.  43;  A. 
Backus  Jr.  <&  Sons  v.  Fort  Street  Union 
Depot  Co.  169  U.  S.  657,  42  L.  ed.  853,  18 
Sup.  Ct.  Rep.  445;  Williams  v.  Parker,  188 
U.  S.  491,  47  L.  ed.  659,  23  Sup.  Ct.  Rep. 
440. 

In  the  light  of  the  holding  by  the  su- 
preme court  of  Alabama  in  the  present  and 
other  cases,  that  the  mapufacture,  supply, 
and  sale  to  the  public  of  electric  power 
generated  by  water  as  a  motive  force  is  a 
public  use  or  purpose  for  which  property 
may  be  taken  under  the  power  of  eminent 
domain,  there  is  no  question  which  can 
arise  in  this  court. 

Union  Lime  Co.  v.  Chicago  &  N.  W.  R. 
Co.  233  U.  S.  211,  68  L.  ed.  924,  34  Sup.  a. 
Rep.  622;  Fallbrook  Irrig.  Dist.  v.  Bradley. 
164  U.  S.  112,  41  L.  ed.  369,  17  Sup.  a. 
Rep.  56;  Clark  t.  Kaah,  198  U.  S.  361,  49 


30,  31 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TkBM, 


L.  ed.  1085,  25  Sup.  Ct.  Rep.  676,  4  Ann. 
Gas.  1171;  Strickley  v.  Highland  Boy  Gold 
Min.  Ck>.  200  U.  S.  527,  50  L.  ed.  581,  26 
Sup.  Ct.  Rep.  301,  4  Ann.  Gas.  1174;  Offield 
V.  New  York,  N.  H.  &  H.  R.  Co.  203  U.  S. 
372,  51  L.  ed.  231,  27  Sup.  Ct.  Rep.  72; 
Hairston  v.  Danville  &  W.  R.  Co.  208  U.  S. 
598,  52  L.  ed.  637,  28  Sup.  Ct.  Rep.  331,  13 
Ann.  Cas.  1008;  Head  v.  Amo^eag  Mfg. 
Co.  113  U.  S.  9,  28  L.  ed.  889,  5  Sup.  a. 
Rep.  441. 

The  supreme  court  of  Alabama  referred 
to  a  number  of  cases  which  have  sustained 
the  principle  that  the  furnishing  of  elec- 
tricity  to  the  public  in  such  manner  is  a 
public  use;  and,  in  addition  to  the  cases 
cited  in  the  opinion,  and  in  the  note  to 
§  268  of  Lewis  on  Eminent  Domain,  3d  ed. 
the  following  recent  cases  sustain  the  same 
principle: 

Lucas  V.  Ashland  Light,  Mill  k  P.  Co.  02 
Neb.  550,  138  N.  W.  761;  Tuttle  v.  Jeffer- 
son  Power  &  Improv.  Co.  31  Okla.  710,  122 
Pac  1102;  Wisconsin  River  Improv.  Co.  v. 
Pier,  137  Wis.  325,  21  L.RA.(N.S.)  538,  118 
N.  W.  857 ;  Great  FalU  Power  Co.  v.  Webb, 
123  Tenn.  584,  133  S.  W.  1105;  Hagerla  v. 
Mississippi  River  Power  Co.  202  Fed.  776; 
State  ex  reL  Dominick  v.  Superior  Ct.  52 
Wash.  196,  21  LJIA.(NJS.)  448,  100  Pac 
317;  Deerfield  River  Co.  v.  Wilmington 
Power  ft  Paper  Co.  83  Vt.  548,  77  Atl.  862; 
Nolan  V.  Central  Georgia  Power  Co.  134  Ga. 
201,  67  S.  E.  656;  Otter  Tail  Power  Co.  v. 
Brastad,  128  Minn.  415,  151  N.  W.  198; 
Pittsburg  Hydro-Electric  Co.  v.  Liston,  70 
W.  Va.  83,  40  L.RA..(N.S.)  602,  73  S.  E. 
86. 

Messrs.  Thomas  W.  Martin  and  Ray 
Rushton  filed  a  separate  brief  for  defend- 
ant in  error: 

The  effect  of  the  judgment  of  the  su- 
preme court  of  Alabama  is  to  leave  the 
trial  of  the  case  to  proceed  in  the  court  of 
first  instance  as  if  there  had  been  no  pro- 
ceeding instituted  to  delay  or  prohibit  the 
trial.  The  merits  are  yet  to  be  determined. 
There  is  no  exact  judgment  to  be  entered, 
granting  or  refusing  to  grant,  or  condemn- 
ing or  refusing  to  condemn,  the  property 
described  in  the  petition,  so  that  the  case 
falls  within  the  rule  laid  down  in  the  fol- 
lowing cases: 

Benjamin  t.  Dubois,  118  U.  S.  46,  30 
L.  ed.  62,  6  Sup.  Ct.  Rep.  925;  Dainese  v. 
KendaU,  119  U.  S.  53,  80  L.  ed.  305,  7  Sup. 
Ct.  Rep.  65;  Keystone  Manganese  ft  Iron 
Co.  T.  Martin,  132  U.  S.  01,  33  L.  ed.  275, 
10  Sup.  Ct.  Rep.  32;  Meagher  t.  Minnesotn 
Thresher  Mfg.  Oo.  145  U.  S.  608,  36  L.  ed. 
834,  12  Sup.  Ct.  Rep.  876;  Union  Mut  L. 
Ins.  Co.  y.  Kirchoff,  160  U.  S.  374,  40  L.  ed. 
461,  16  Sup.  Ct.  Rep.  318;  Great  Western 
510 


Teleg.  Oo.  v.*  Bumham,  162  U.  S.  339,  40 
L.  ed.  991,  16  Sup.  Ct.  Rep.  850;  Clark  t. 
Kansas  City,  172  U.  S.  334,  43  L.  ed.  467, 10 
Sup.  Ct.  Rep.  207;  Grant  v.  Phoenix  Mut.  L. 
Ins.  Co.  106  U.  S.  429,  27  L.  ed.  237,  1  Sup. 
Ct.  Rep.  414;  Moses  v.  Mobile,  15  Wall.  387, 
21  L.  ed.  176;  Loeber  v.  Shroeder,  140  U.  S. 
680,  37  L.  ed.  856,  13  Sup.  Ct.  Rep.  934; 
Schlosser  v.  Hemphill,  198  U.  S.  173,  40 
L.  ed.  1001,  25  Sup.  Ct.  Rep.  654 ;  Haseltine 
V.  Central  Nat.  Bank,  183  U.  8.  130,  40 
L.  ed.  117,  22  Sup.  Ct.  Rep.  49;  Missouri  ft 
K.  I.  R.  Co.  V.  OUthe,  222  U.  S.  185,  50 
L.  ed.  155,  32  Sup.  Ct.  Rep.  46;  Louisiana 
Nav.  Co.  V.  Oyster  Commission,  226  U.  S. 
90,  57  L.  ed.  138,  33  Sup.  Ct.  Rep.  78;  Lodge 
V.  Twell,  135  U.  S.  232,  34  L.  ed.  153,  10 
Sup.  Ct.  Rep.  745;  Bostwick  v.  Brinkeroff, 
106  U.  S.  3,  27  L.  ed.  73,  1  Sup.  Ct.  Rep.  15. 

Mr.  Justice  Holmes  delivered  the  opiniou 
of  the  court: 

This  is  a  petition  for  a  writ  of  prohibition 
to  prevent  the  probate  court  of  Tallapoosa 
county  from  taking  [31]  jurisdiction  of 
condemnation  proceedings  instituted  by  the 
Alabama  Interstate  Power  Company  to  take 
land,  water,  and  water  rights  belonging  to 
the  petitioner.  An  alternative  writ  was 
issued,  but  the  supreme  court  of  the  state 
ordered  it  to  be  quashed  and  the  writ  to  be 
dismissed.  186  Ala.  622,  65  So.  287.  The 
grounds  of  the  petition  are  that  the  statutes 
of  Alabama  do  not  authorize  the  proceed- 
ings, and  that  if  they  do  they  contravene 
the  14th  Amendment  of  the  Constitution  of 
the  United  States.  The  supreme  court  up- 
held the  statutes  and  the  jurisdiction  of 
the  probate  court,  but  left  the  sufficiency  of 
the  petition  for  condenmation,  whether 
every  subject  of  which  condemnation  was 
sought  could  be  condemned,  and  the  ability 
of  the  Power  Company  to  prove  its  case,  to 
be  determined  in  the  condemnation  case. 
There  is  a  motion  to  dismiss  the  writ  of 
error  on  the  ground  that  the  present  deci- 
sion is  not  final  because  it  does  not  deter- 
mine the  merits;  but  this  motion  must  be 
denied.  Prohibition  is  a  distinct  suit  and 
the  judgment  finally  disposing  of  it  is  a 
final  judgment  within  the  meaning  of  the 
Judicial  Code,  act  of  March  3,  1011,  chap. 
231,  §  237,  36  SUt.  at  L.  1087,  1156,  Comp. 
Stat.  1013,  9§  968,  1214,  under  the  sUtutes 
of  Alabama  and  by  the  common  law.  Code 
of  1907,  If  4864-4867,  4872;  Weston  t. 
Charleston,  2  Pet.  449,  464,  465,  7  Lw  ed. 
481,  486,  487.  The  fact  that  it  does  not 
decide  the  merits  of  the  principal  suit  is 
immaterial.  It  is  not  devoted  to  that  point, 
but  only  to  the  preliminary  question  of  the 
jurisdiction  of  the  court  in  whicli  that  suit 
is  brought. 

The  argument  in  favor  of  granting  the 

240  U.  S* 


1915. 


NEW  YORK,  P.  ft  K.  R.  00.  t.  PENINSULA  PRODUCE  EXGH.         81-34 


writ,  presented  by  the  plaintiffs  in  error,  is 
addressed  in  great  part  to  matters  with 
which  this  court  has  no  concern.  It  is 
argued  that  the  prol>ate  court  could  not  be 
giyen  jurisdiction  of  the  condemnation  pro- 
eeedings  consistently  with  the  Constitu- 
tion of  the  state;  that  \mder  the  same  in- 
strument the  state  legislature  had  no  power 
to  pass  the  condemnation  acts;  that  the 
petition  ^as  insufficient  to  found  jurisdic- 
tion of  the  case  and  was  defective  in  various 
[3S]  ways;  that  a  part  of  the  condemna- 
tion sought  was  bad  under  the  statutes  in 
any  event;  and  that  certain  words  in  the 
Alabama  Code  under  which  it  is  sought  to 
condemn  rights  below  the  contemplated  dam 
of  the  Power  Company  never  were  properly 
enacted  by  the  legislature  of  the  state. 
All  these  points  must  be  taken  to  have  been 
decided  adversely  to  the  plaintiff  in  error 
by  the  supreme  court  of  Alabama  so  far  as 
they  might  furnish  grounds  for  prohibition, 
and  they  all  are  matters  on  which  this  court 
follows  the  supreme  court  of  the  state. 

The  principal  argument  presented  that  is 
open  here,  is  that  the  purpose  of  the  con- 
demnation is  not  a  public  one.  The  purpose 
of  the  Power  Company's  incorporation,  and 
that  for  which  it  seeks  to  condemn  property 
of  the  plaintiff  in  error,  is  to  manufacture, 
supply,  and  sell  to  the  public,  power  pro- 
duced by  water  as  a  motive  force.  In  the 
organic  relations  of  modem  society  it  may 
sometimes  be  hard  to  draw  the  line  that  is 
supposed  to  limit  the  authority  of  the  legis- 
lature to  exercise  or  delegate  the  power  of 
eminent  domain.  But  to  gather  the  streams 
from  waste  and  to  draw  from  them  energy, 
labor  without  brains,  and  so  to  save  man- 
kind from  toil  that  it  can  be  spared,  is  to 
supply  what,  next  to  intellect,  is  the  very 
foundation  of  all  our  achievements  and  all 
our  welfare.  If  that  purpose  is  not  public, 
we  should  be  at  a  loss  to  say  what  is.  The 
inadequacy  of  use  by  the  general  public  as 
a  universal  test  is  established.  Clark  v. 
Nash,  198  U.  S.  361,  40  L.  ed.  1085,  25  Sup. 
Ct  Rep.  670,  4  Ann.  Cas.  1171;  Strickley  v. 
Highland  Boy  Gold  Min.  Co.  200  U.  S. 
627,  531,  50  L.  ed.  581,  583,  26  Sup.  Ct 
Rq>.  301,  4  Ann.  Cas.  1174.  The  respect  duo 
to  che  judgment  of  the  state  would  have 
great  weight  if  there  were  a  doubt.  Hair- 
ston  V.  Danville  k  W.  R.  Co.  208  U.  8.  608, 
607,  52  L.  ed.  637,  641,  28  Sup.  Ct.  Rep. 
331,  13  Ann.  Cas.  1008;  O'Neill  v.  Leamer, 
239  U.  S.  244,  253,  ante,  249, 265, 36  Sup.  Ct. 
Bep.  54.  But  there  is  none.  See  Otis  Co. 
V.  Ludlow  Mfg.  Co.  201  U.  S.  140,  151,  50 
L.  ed.  696,  705,  26  Sup.  Ct.  Rep.  353.  We 
perceive  no  ground  for  the  distinction  at- 
tempted between  the  taking  of  rights  below 
the  contemplated  dam,  such  as  these  are,  I 
•ad  those  above.  Compensation  is  provided 
••  L.  ed. 


for  aooording  to  rules  [83]  that  the  eovrt 
below  declares  to  be  well  settled  and  that 
appear  to  be  adequate.  The  details  as  to 
what  may  be  taken  and  what  not  under  the 
statutes  and  petition  are  not  open  here.  Be- 
fore a  corporation  can  condemn  rights  it  is 
required  to  have  obtained,  by  other  means, 
at  least  an  acre  on  each  idde  of  the  stream 
for  a  dam  site,  and  this  is  supposed  to  show 
that  the  use  is  not  public.  It  is  only  a 
reasonable  precaution  to  insure  good^  faith. 
A  hardly  consistent  argument  is  that  the 
dam  should  be  built  before  the  necessity  of 
taking  waters  below  can  be  shown.  But  a 
plan  may  show  the  necessity  beforehand. 
All  that  we  decide  is  that  no  general  objec- 
tion based  on  these  grounds  affects  the  juris- 
diction of  the  probate  court  or  the  con- 
stitutionality of  the  act. 

Certain  exceptions  from  the  powers  con- 
ferred, such  as  private  residences,  lands  of 
other  corporations  having  similar  powers, 
and  cotton  factories,  subject  to  the  taking 
of  the  excess  of  water  over  that  in  actual 
use  or  capable  of  use  at  normal  stages  of 
the  stream,  are  too  plainly  reasonable  so  far 
as  they  come  in  question  here  to  need 
justification.  Discrimination  is  alleged,  but 
not  argued.  We  see  nothing  that  runs 
against  the  14th  Amendment.  The  right 
given  to  take  possession  before  the  compen- 
sation is  finally  determined  also  is  not 
argued.  Williams  v.  Parker,  188  U.  S.  491, 
502,  47  L.  ed.  559,  562,  23  Sup.  Ct.  Rep. 
440.  Without  further  discussion  of  the 
minutis,  we  are  of  opinion  that  the  deci- 
sion of  tiie  Supreme  Court  of  Alabama  upon 
the  questions  arising  under  the  Constitution 
of  the  United  States  was  correct. 

Judgment  affirmed. 


[84]  NEW  YORK,  PHILADBLPHIA,  & 
NORFOLK  RAILROAD  COMPANY,  Plff. 
in  Err., 

T. 

PENINSULA  PRODUCE  EXCHANGE  OF 

MARYLAND. 

(See  S.  C.  Reporter's  ed.  34-42.) 

Connecting  carriers  —  delay  beyond 
own  line  —  Carmack  amendment. 

1.  Damages  for  the  loss  of  the  market 
because  of  unreasonable  delay  in  transpor- 
taticm  occurring  anywhere  en  route  are  com- 
prehended by  the  provision  of  the  Carmack 
amendment  of  June  29,  1906  (34  Stat,  at 
L.  593,  chap.  3591),  §  7,  to  the  act  of 
February  4,  1887  (24  Stat,  at  L.  379,  chap. 
104,  Comp.  Stat.  1913,  {  8592),  f  20,  which 

Note. — ^As  to  the  rights  and  liabilities  of 
connecting  carriers — see  notes  to  Fox  v. 
Boston  &  M.  R.  Co.  1  L.RJL  703;  Crossan  v. 
New  York  4  N.  S.  R.  Co.  8  L.R.A.  766; 

511 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Term, 


makes  the  initial  carrier  of  an  interstate 
shipment  liable  to  the  holder  of  the  bill  of 
lading  for  "any  loss,  damage,  or  injury  to 
such  property"  caused  by  it  or  by  any  car- 
rier in  the  cnain  of  transportation,  despite 
any  agreement  or  stipulation  to  the  con- 
trary, with  the  right  of  recovery  over 
against  the  carrier  at  fault  in  the  amount 
of  such  "loss,  damage,  or  injury"  as  the 
former  carrier  may  have  been  required  to 
pay  to  the  owners  of  the  property. 
[  For  other  rases,  see  Carriers,  II.  c,  in  Digest 
Sup.  Ct.  1913  Supp.] 

Error  to  state  court  —  harmless  error 
—  instructions  —  evidence. 

2.  A  judgment  of  the  highest  state 
court  which  affirms  a  judgment  against  a 
carrier  for  the  damages  sustained  by  a 
shipper  through  a  decline  in  market  value, 
due  to  an  unreasonable  delay  in  the  trans- 
portation of  an  interstate  shipment,  will 
not  be  reversed  because  the  trial  court,  by 
its  instructions,  erroneously  permitted  the 
jury  to  award  as  damaf^  the  amount  of 
such  decline  in  value  without  reference  to 
a  limitation  in  the  bill  of  lading  and  in  the 
carrier's  published  tariff  that  the  carrier's 
liability  for  loss  or  damage  is  to  be  comput- 
ed on  the  basis  of  the  value  of  the  ship- 
ment plus  the  freight  at  the  time  and  place 
of  shipment,  unless  a  lower  value  is  agreed 
upon,  or  because  the  trial  court  erroneously 
excluded  such  tariff  with  its  conditions 
when  offered  in  evidence,  where,  upon  the 
facts  as  the  highest  court  finds  them  to  be, 
the  agreed  maximum  of  liability  as  stipulat- 
ed is  not  exceeded  by  the  judgment. 
[For  other  caf^es.  see  Appeal  and  Error,  n051- 
6065,  C071-5126,  in  Digest  Sup.  Ct.  1908.] 

[No.  337.] 

Argued  December  35  and  16,  1915.    Decided 
January  24,  1916. 

IN  ERROR  to  the  Court  of  Appeals  of 
the  State  of  Maryland  to  review  a  judg- 
ment which  affirmed  a  judgment  of  the 
Circuit  Court  for  Somerset  County,  in  that 
state,  in  favor  of  a  shipper  in  an  action 
against  an  initial  carrier  for  the  loss  of 
the  market,  due  to  imreasonable  delay  in 
the  transportation  of  an  interstate  ship- 
ment.    Affirmed. 

See  same  case  below,  122  Md.  215,  89  Atl. 
433. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Henry  Wolf  Bikl6  and  Frederic 
D.  McKenney  argued  the  cause  and  filed 
a  brief  for  plaintiff  in  error: 

While  it  is  well  settled  in  this  court  that 
a  carrier  accepting  property  consigned  to 
a  point  beyond  its  own  line  is  not  liable 


for  the  transportation  of  the  property  after 
it  leaves  its  rails,  in  the  absence  of  express 
agreement  to  assume  such  •  responsibility 
(Michigan  C.  R.  Co.  v.  Mineral  Springs 
Mfg.  Co.  16  WaU.  318,  21  L.  ed.  297;  Og- 
densburg  &  L.  C.  R.  Co.  v.  Pratt,  22  Wall. 
123,  22  L.  ed.  827),  in  the  present  proceed- 
ing there  is  an  express  stipulation  against 
the  assumption  of  such  liability,  except  as 
it  has  been  imposed  by  law.  It  follows, 
therefore,  that  the  plaintiff  in  error  is 
under  no  liability  to  the  shipper  unless  the 
I  Carmack  amendment  is  sufficiently  broad 
in  its  scope  to  include  liability  for  delay 
occurring  on  the  line  of  a  connection. 

Myrick  v.  Michigan  C.  R.  Co.  107  U.  S. 
102,  27  L.  ed.  325,  1  Sup.  Ct.  Rep.  425; 
Wabash  R.  Co.  v.  Pearce,  192  U.  S.  179,  48 
L.  ed.  397,  24  Sup.  Ct.  Rep.  231. 

The  Carmack  amendment  carefully  con- 
fines the  liability  imposed  on  the  initial 
carrier  to  loss,  damage,  or  injury  caused  by 
it  or  by  any  common  carrier,  railroad,  or 
transportation  company,  to  which  such 
property  may  be  delivered,  or  over  whose 
line  or  lines  such  property  may  pass;  and 
this  liability  is  not  coextensive  with  the 
common-law  liability  of  the  individual  car- 
riers. 

Galveston,  ,K.  ft  S.  A.  R.  Co.  v.  Wallace, 
223  U.  S.  481,  491,  56  L.  ed.  516,  523,  32 
Sup.  Ct.  Rep.  205;  Kansas  City  Southern  R. 
Co.  V.  Carl,  227  U.  S.  639,  649,  57  L.  ed. 
683,  687,  33  Sup.  Ct.  Rep.  391. 

From  the  earliest  times  the  liability 'for 
delay  has  been  an  entirely  different  ami 
distinct  liability  from  that  for  loss,  dam- 
age, or  injury  to  the  property.  The  latter 
liability  has  been  the  unique  liability 
shared  by  the  carrier  and  the  iniikee})cr. 
(See  Holmes,  Common  Law,  chap.  5,  and 
Professor  Beale's  article,  11  Harvard  L. 
Rev.  158.)  This  liability  required  tlie  car- 
rier to  answer  at  all  events  for  the  safety 
of  the  property  except  in  those  situations 
for  which  the  law  itself  created  excuses, 
vix.,  the  act  of  God,  the  act  of  the  public 
enemy,  the  act  of  the  law,  the  act  of  the 
shipper,  and  the  nature  of  the  goods.  But 
delay  in  itself  is  not  a  cause  of  action;  it 
must  be  negligent  delay. 

Story,  Baihn.  9th  ed.  §  545A;  Scbouler, 
Bailm.  ft  Carr.  3d  ed.  §  488;  Hutchinson, 
Carr.  3d  ed.  §  653;  Pennsylvania  R.  Oo.  ▼. 
Clark,  118  Md.  514,  85  Atl.  613. 

Furthermore,     where     property     having 
moved  over  the  lines  of  several  railroads* 
is  delivered  at  destination  damaged,  there 


Hill  V.  Denver  ft  R.  G.  R.  Co.  4  L.RJL  376; 
International  ft  G.  N.  R.  Co.  v.  Tisdale,  4 
LwRJ^.  545;  Browning  v.  Goodrich  Transp. 
Co.  10  L.RJL  415;  Richmond  ft  D.  R.  Co. 
V.  Pa3me,  6  L.R.A.  849;  Adams  Exp.  Co.  v. 
Harris,  7  LJtJL  214;  Miller  v.  South  Caro- 
ftl2 


lina  R.  Co.  9  L.R.A.  833;  and  Roy  v.  Chesa- 
peake ft  O.  R.  Co.  31  L.RJl.(N.S.)  1. 

Effect  of  Carmack  amendment  on  liability 
of  connecting  carrier  for  loss  beyond  its 
own  line — see  note  to  Galveston,  H.  ft  S.  A. 
R.  Co.  V.  Wallaos,  56  L.  ed.  U.  S.  516. 

240  V.  8. 


19U.          VKW  YOBK.  P.  4  N.  R.  CO.  ▼.  PENINSULA  PBODUGB  EXGH. 

iB  a  prcftumptioii,  when  it  is  shown  that  Supp.  225;  Kramer  t.  Chicago,  M.  &  St.  P. 

each  property  was  delivered  to  the  initial  R.  Go.  101  Iowa,  178,  70  N.  W.  119,  1  Am. 

earner  in  good  condition,  that  the  damage  Neg.  Rep.  220. 

occunred  on  the  line  of  the  final  carrier.  The  Peninsula  Produce  Exchange  seeks  in 

This  presumption  results  from  the  appli-  this  case  to  recover  upon  a  liability  which 

cation  of  another  presumption,  that  a  con-  not  only  is  not  offered  in  the  tariffs  of  the 

ditioB  found  to  exist  is  presumed  to  con-  carrier,  but  is  specifically  contrary  to  the 

tfame  until  the  contrary  appears.    In  cases  contract  of  transportation  into  which  the 

of  delay  resulting  in  no  physical  damage,  carrier,  through  the  medium  of  its  tariffs, 

BO   similar  application  of  the  more  com-  offers  to  enter. 

prehensive  presumption  is  possible,  and  it  Chicago  &  A.  R.  Co.  v.  Kirby,  226  U.  S. 

is  settled  in  cases  of  delay  that  there  is  no  165,  56  L.  ed.  1033,  32  Sup.  Ct.  Rep.  648, 

presumption  as  to  the  line  on  which  the  Ann.  Cas.  1014A,  501;  Atchison,  T.  ft  S.  F. 

delay  occurred,  but  that  the  plaintiff  must  R.  Co.  v.  Robinson,  233  U.  S.  173,  58  L.  ed. 

localize  the  delay  on  the  line  of  the  carrier  001,  34  Sup.  Ct.  Rep.  656;  Boston  ft  M.  R. 

selected  by  him  for  suit.  Co.  v.  Hooker,  233  U.  S.  97,  58  L.  ed.  868, 

East  Tennessee,  V.  ft  O.  R.  Co.  t.  John-  L.RA.  1915B,  460,  34   Sup.  Ct.  Rep.  526, 

SOB,  86  6a.  497,  11  S.  E.  809;  Almand  v.  Ann.  Cas.  1916B,  593;  Adams  Exp.  Co.  t. ' 

Georgia  R.  ft  Bkg.  Co.  05  Ga.  775,  22  S.  E.  Croninger,  226  U.  S.  491,  57  L.  ed.  314,  44 

674;  Hutchinson,  Carr.  3d  ed.  1690;  6  Cyc.  L.RA.(N.S.)    257,   33    Sup.    Ct.    Rep.    148; 

400,  note  40,  p.  491 ;  Detroit  ft  B.  C.  R.  Co.  Kansas  City  Southern  R.  Co.  v.  Carl,  227 

T.  McKenzie,  43  Mich.  609,  5  N.  W.  1031.  U.  S.  639,  57  L.  ed.  683,  33  Sup.  Ct.  Rep. 

It  seems  improbable  that  Congress  could  391. 

have  intended  to  include  liability  for  delay  The  reasonableness  of  the  limitation  was 

by  tiie  use  of  the  words,  "loss,  damage,  or  not  open  for  discussion  in  the  state  court, 

,  Injury  to  the  property,"  which  have  a  mean-  since  the  shipment  was  an  interstate  ship- 

ing    that    excludes    delay.     Moreover,    in  mcnt,  and  no  complaint  had  been  made  to 

Adams  Exp.  Co.  v.  Croninger,  226  U.  S.  491,  the  Interstate  Commerce  Commission  of  the 

67  Lw  ed.  314,  44  LJRA.(N.S.)  257,  33  Sup.  unreasonableness  of  the  regulation  in  ques- 

Ct.  Rep.  148,  this  court  apparently  recog-  tion.     If    any   complaint   could   justly   be 

nixes  delay  as  a  distinct  and  separate  cause  lodged  against  the  stipulation,  clearly  the 

of  action  from  loss,  injury,  or  damage  to  Interstate  Commerce  Commission  would  be 

property.  the    tribimal    primarily   trusted    with    the 

But,  if  an  initial  carrier  may  be  held  for  jurisdiction  to  dispose  of  the  controversy, 

the  delay  of  the  connecting  carrier  if  such  Texas  ft  P.  R.  Co.  v.  Abilene  Cotton  Oil 

delay  causes  damage  or  injury  to  the  prop-  Co.  204  U.  S.  426,  51  L.  ed.  553,  27  Sup.  Ct. 

erty,   it  would   still  remain   to   determine  Rep.  350,  9  Ann.  Cas.  1076;  Baltimore  ft  O. 

whether  the  initial  carrier  could   be  held  R.  Co.  v.  United  States,  216  U.  S.  481,  54 

ifhere  such  delay  caused  no  loss,  damage,  L.  ed.  292,  30  Sup.  Ct.  Rep.  164;  Robinson 

or  injury  to  the  property,  but  only  loss,  v.  Baltimore  ft  O.  R.  Co.  222  U.  S.  506,  56 

damage,  or  injury  to  the  shipper  consequent  L.  ed.  288,  32  Sup.  Ct.  Rep.  114;   Morris- 

upon  conditions  having  no  reference  to  the  dale  Coal  Co.  v.  Pennsylvania  R.  Co.  230 

actual  transportation  of  the  goods.    To  bus-  U.  S.  304,  57  L.  ed.  1494,  33  Sup.  Ct.  Rep. 

tain  such  liability  would  involve  the  car-  938;   Boston  ft  M.  R.  Co.  v.  Hooker,  233 

rier  in  a  liability  uncertain  in  extent  and  U.  S.  97,  58  L.  ed.  868,  L.RA.  1915B,  450, 

speculative  in  character,— a  liability  which  34  Sup.  Ct.  Rep.  526,  Ann.  Cas.  1915D,  593. 

would  eantimvene  the  public  interest.  ^^     j^^^    ^    Ellegood    argued    the 

^^'^^.^  *n^-  ^;^^^»**'  R.  I.  &  P.  cause  and  filed  a  brief  for  defendant  in  er- 

A*  vx>.  81  Inters.  iJom.  Kep.  8.  ror* 

ProTbion.  of   bills   of   la<ling   requiring  ^j^^  ^^^^  ^f  ^^  ^^^„  ^^  respecting 

«*t  notices  of  clauns  for  loss  or  damage  ^^^^,  jj^^y.^     ^^^  p^,^  sUtute  itself. 

to  shipments  shall  be  filed  withm  a  sp«a-  .^^           ^  J'     .„^  ^^,  p„,i,io„, 

ned  time  are  not  sufficient  to  justify  a  de- Ji   ™^^:i„   —U.^^^   -««   .^kio^.u-f    «# 

m.«^  #^  .  -;«.;! *;...  ^i,-,-.  *ii  -u;«_  ™^<^   speedily   remove   any   ambiguity,   if 


^istinct^  States  v.  Lexington  Mill  ft  Elevator  Co.  232 

Johnson  v.  Missouri,  K.  ft  T.  R.  Co.  107  ^'  ^-  ^^^*  ^^  ^-  ^'  ^^^»  L.RA.  1915B,  774, 

App.  Div.  374,  95  N.  Y.  Supp.  182;  D.  Klass  34  Sup.  a.  Rep.  337. 

<^mmiMion  Co.  v.  Wabash  R.  Co.  80  Mo.       The  statute,  original  and  amendments,  is 

^PP.  164;  Leonard  v.  Chicago  ft  A.  R.  Co.  remedial,  and,  by  the  universal  rule,  must 

54  Mo.  App.  293;  Frey  v.  New  York  C.  ft  receive  a  liberal  construction  to  effectuate 

^*  R.  R.  Co.  114  App.  Div.  747,  100  N.  Y.  iU  intent  as  an  entirety;  but  that  which 
♦<>  L.  ed.                                                          33  .^Y'^ 


3e»  87 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tknc^. 


k  oontended  for  would  defeat  its  purpoee  in 
part;  that  ie,  aa  a  remedy  for  relief  for 
"aaj  lossy"  except  for  lose  or  damaged 
gooda.  Thia  ia  not  to  be  tolerated  unlese 
the  words  of  the  statute  compel  it. 

Washington  Market  Go.  t.  Hoffnuu,  101 
U.  S.  112,  116,  25  L.  ed.  782,  784. 

Its  operation  may  be  restrained  or  en- 
larged beyond  the  ordinary  import  of  the 
words  when  the  purpose  of  the  statute  and 
public  policy  require  it. 

United  States  v.  Trans-Missouri  Freight 
Asso.  166  U.  S.  290,  41  L.  ed.  1007,  17  Sup. 
Ct.  Rep.  640. 

It  is  with  the  right  of  the  person  sus- 
taining the  loss,  and  not  with  any  specific 
cause  of  injury  to  the  property,  that  the 
statute  is  concerned. 

New  York,  P.  ft  N.  R.  Co.  t.  Peninsula 
Produce  Exch.  122  Md.  216,  89  Atl.  433. 

The  liability  imposed  by  the  statute  is 
the  liability  imposed  by  the  common  law. 

Adams  Exp.  Co.  y.  Oroninger,  226  U.  S. 
491,  492,  57  L.  ed.  314,  315,  44  LJELA.(N.S.) 
257,  38  Sup.  Ct.  Rep.  148;  Galveston,  H.  & 
S.  A.  R.  Co.  T.  Wallace,  56  L.  ed.  517,  and 
note,  223  U.  S.  481,  32  Sup.  Ct.  Rep.  205; 
Missouri,  K.  ft  T.  R.  Co.  v.  Harriman,  227 
U.  S.  657,  671,  57  L.  ed.  690,  698,  33  Sup. 
Ct.  Rep.  397. 

The  common-law  duty  required  the  car- 
rier to  transport  and  deliyer  within  a  rea- 
sonable time;  and  any  failure  of  this  duty 
within  a  reasonable  time  renders  the  car- 
rier liable  for  all  the  consequences. 

Philadeli^ia,  W.  ft  B.  R.  Co.  v.  Lehman, 
56  Md.  233,  40  Am.  Rep.  415. 

The  duty  to  deliver  safely,  and  the  duty 
to  deliver  in  due  time,  are  distinct  obli- 
gations. 

Baltimore  ft  0.  R.  Go.  t.  Whitehill,  104 
Md.  310,  64  Atl.  1033;  PhiUdelphia,  B.  ft  W. 
R.  Co.  T.  Diffendal,  109  Md.  509,  72  Atl.  193, 
458;  Baltimore,  C.  ft  A.  R.  Co.  v.  William 
Sp^-ber  ft  Co.  117  Md.  602,  84  Atl.  72; 
Philadelphia,  W.  ft  B.  R.  Co.  v.  Lehman, 
supra. 

Mr.  Justice  Hughes  delivered  the  opinion 
of  the  court: 

On  May  26,  1910,  the  Peninsula  Produce 
Exchange  of  Maryland  delivered  to  the  New 
York,  Phihidelphia,  ft  Norfolk  Railroad 
Company  at  Marion,  Maryland,  a  carload 
of  strawberries  for  tranq>ortation  to  New 
York  dty.  The  conditions  of  the  transpor- 
tation were  set  forth  in  the  bill  of  lading 
issued  by  the  railroad  company.  The  prop- 
erty was  delivered  at  destination  lome  hours 
later  than  the  customary  time  of  arrival, 
and  thia  action  was  brought  to  recover  dam- 
ages for  the  failure  to  transport  and  de- 
liver with  reasonable  despatch.  Judgment 
in  favor  of  the  shipper  was  affirmed  l^  the 
ftl4 


court  of  appeals  of  Maryland.  122  Md.  215^ 
89  AtL  433. 

The  plaintiff  in  error,  in  its  brief,  states- 
that  "Uie  questions  involved  are  two—" 

"1:  Does  the  Carmack  amendment  [84 
Stat,  at  L.  593,  chap.  8591,  Comp.  Stat. 
1918,  S  8592]  impose  on  the  'initial  car- 
rier* liabili^  for  delay  occurring  on  the 
line  of  its  connection  without  physical  dam- 
age to  the  property? 

"2.  Was  the  plaintiff  entitled  to  recover 
because  its  shipment  failed  to  arrive  in 
time  for  the  market  of  May  28th,  when  the 
regulations  under  which  the  shipment  moved 
were  published  in  tariffs  duly  on  file  with 
the  Interstate  Commerce  Commission,  and 
specifically  provided:  'No  carrier  is  bound 
to  transport  said  property  by  any  particular 
train  or  vessel,  or  in  time  for  any  particular 
market,  or  otherwise  than  with  reasonable 
despatch,  unless  by  specific  agreement  in- 
dorsed hereon*?" 

The  first  question,  arising  from  the  fact 
that  it  did  not  appear  that  the  delay  oc- 
curred on  the  line  of  the  initial  [37]  carrier 
(the  defendant)  was  raised  by  an  unsuc- 
cessful demurrer  to  the  declaration,  and 
both  questions  were  presented  by  prayers 
for  instructions  which  were  denied. 

The  amendment  of  §  20  of  the  interstate 
commerce  act,  known  as  the  Carmack 
amendment  (act  of  June  29,  1906,  chap. 
3591,  §  7,  34  Stat,  at  L.  584,  505,  Comp. 
Stat.  1913,  9  8592),  provides  "that  any 
common  carrier  .  .  .  receiving  property 
for  transportation  from  a  point  in  one 
state  to  a  point  in  another  state  shall  issue 
a  receipt  or  bill  of  lading  therefor  and 
shall  be  liable  to  the  lawful  holder  thereof 
for  any  loss,  damage,  or  injury  to  sucb 
property  caused  by  it  or  by  any  common 
carrier  ...  to  which  such  property 
may  be  delivered  or  over  whose  line  or  linea 
such  property  may  pass,  and  no  contract^, 
receipt,  rule,  or  regulation  shall  exempt 
such  common  carrier  .  .  .  from  the  lia- 
bility hereby  imposed." 

We  need  not  review  at  length  the  con- 
siderations which  led  to  the  adoption  of  thia 
amendment.  These  were  stated  in  Atlantie 
Coast  Line  R.  Co.  v.  Riverside  Mills,  21& 
U.  S.  186,  199-203,  55  L.  ed.  167,  179-181,. 
31  L.RA.(N.S.)  7,  31  Sup.  Ct.  Rep.  164. 
It  was  there  pointed  out  that  along  with 
singleness  of  rate  and  continuity  of  car- 
riage in  through  shipments  there  had  grown 
up  the  practice  of  requiring  specific  stipu- 
lations limiting  the  liability  of  each  sepa- 
rate company  to  its  own  part  of  the  through 
route,  and,  as  a  result,  the  shipper  could 
look  to  the  initial  carrier  for  recompense 
only  "for  loss,  damage,  or  delay"  occurring 
on  its  own  line.  This  ''burdensome  situa- 
tion" was  "the  matter  which  Congress  un- 

240  U.  S» 


1915. 


NEW  YOBK,  F.  k  K.  R.  CO.  y.  PENINSULA  PRODUCE  EXCH.         S7-40 


dertook  to  regulata.*'  And  it  wu  conduded 
ttat  the  requirement  that  interstate  car- 
riers holding  themselves  out  as  receiving 
packages  for  destinations  beyond  their  own 
terminal  should  be  compelled  "as  a  condi- 
tion of  continuing  in  that  traffic  to  obligate 
themselves  to  carry  to  the  point  of  destina- 
tion, using  the  lines  of  connecting  carriers 
as  their  own  agencies,"  was  within  the 
power  of  Congress.  The  rule,  said  the  court 
in  defining  the  purpose  of  the  Carmack 
amendment,  "is  adapted  to  [88]  secure  the 
rights  of  the  shipper  by  securing  unity  of 
transportation  with  imity  of  responsibility." 
And,  again,  we  said  in  Adams  Exp.  Co.  v. 
Croninger,  226  U.  S.  491,  57  L.  ed.  314,  44 
L.R.A.(N.S.)  257,  33  Sup.  Ct.  Rep.  148, 
that  this  legislation  embraces  "the  subject 
of  the  liability  of  the  carrier  under  a  bill 
of  ladiDg  which  he  must  issue."  "The  duty 
to  issue  a  bill  of  lading  and  the  liability 
thereby  assumed  are  covered  in  full,  and 
though  there  is  no  reference  to  the  effect 
upon  state  regulation,  it  is  evident  that 
Congress  intended  to  adopt  a  uniform  rule 
and  relieve  such  c<mtracts  from  the  diverse 
regulation  to  which  they  had  been  there- 
tofore subject."    Id.  p.  506. 

It  is  now  insisted  that  Congress  failed  to 
accomplish    this    paramount    object;    that 
while  unity  of  responsibility  was  secured  if 
the  goods  were   injured   in   the  course   of 
transportation   or  were  not  delivered,  the 
statute  did  not  reach  the  case  of  a  failure  to 
transport    with    reasonable    despatch.     In 
such  case  it  is  said  that,  although  there  is 
a  through  shipment,  the  shipper  must  still 
look  to  the  particular  carrier  whose  neglect 
caused  the  delay.    We  do  not  think  that  the 
language  of  the  amendment  has  the  inade- 
quacy attributed  to  it.     The  words   "any 
loss,  damage,  or  injury  to  such  property," 
caused  by  the  initial  carrier  or  by  any  con- 
necting carrier,  are  comprehensive  enough 
to  embrace  all  damages  resulting  from  any 
failure  to  discharge  a  carrier's  duty  with 
respect  to  any  part  of  the  transportation 
to  the  agreed  destination.    It  is  not  neces- 
sary, nor  is  it  natural,  in  view  of  the  gen- 
eral  purpose   of  the  statute,   to  take  the 
words  "to  the  property"  as   limiting  the 
word  "damage"  as  well  as  the  word  "in- 
jury," and  thus  as  rendering  the  former 
wholly  superfluous.    It  is  said  that  there  is 
a  different  responsibility  on  the  part  of  the 
carrier   with    respect   to  delay   from   that 
which  exists  where  there  is  a  failure  to 
carry  safely.     But  the  difference  is  with 
respect    to   the   measure   of   the   carrier's 
obligation;  the  duty  to  transport  with  rea- 
sonable despatch  is  none  the  less  an  inte- 
gral  part   of   the   normal   undertaking  of 
[89]  the  carrier.    And  we  can  gather  no  in- 
tent to  unify  only  a  portion  of  the  carrier's 
•t  L.  ed. 


I  responsibility.     Further,  it  is  urged  that 
the  amendment  provides  that  the  initial 
carrier  may  recover   from  the  -connecting 
carrier  "on  whose  line  the  loss,  damage^  or 
injury  shall  have  been  sustained  the  amount 
of  such  loss,  damage,  or  injury  as  it  may  be 
required  to  pay  to  the  owners  of  such  prop- 
erty;" and  this,  it  is  said,  shows  that  the 
"loss,  damage,  or  injury"  desoribed  is  that 
which  may  be  localized  as  having  occurred 
on  the  line  of  one  of  the  carriers,  and  there- 
fore should  be  limited  to  physical  loss  or 
injury.     But  we  find  no  difficulty  in  this^ 
as  the  damages  required  to  be  paid  by  the 
initial  carrier  are  manifestly  r^arded  as 
resulting  from  some  breach  of  duty,  and  the 
purpose  is  simply  to  provide  for  a  recovery 
against  the  connecting  carrier  if  the  latter, 
as  to   its  part  of   tiie  transportation,   is 
found  to  be  guilty   of  that  breach.     The 
view  we  have  expressed  finds  support  in 
the  explicit  terms  of  the  act  of  January  20, 
1914,  chap.  11,  38  Stat  at  L.  278,  which 
provides  "that  no  suit  brought  in  any  state 
court  of  competent  jurisdiction  against  a 
railroad  company    ...    to  recover  dam- 
ages for  delay,  loss  of,  or  injury  to  prop- 
erty  received   for   transportation   by   such 
common  carrier  under  section  twenty  of  the 
act  to  regulate  conunerce    .    .    .    shall  be 
removed  to  any  court  of  the  United  States 
where  the  matter  in  controversy  does  not 
exceed,  exclusive  of  interest  and  costs,  the 
sum  or  value  of  $3,000."    If  the  language 
of  §  20  can  be  regarded  as  ambiguous,  this 
legislative  interpretation  of  it  as  conferring 
a  right  of  action  for  delay,  as  well  as  for 
loss  or  injury  to  the  property  in  the  course 
of    transportation,    is    entitled    to    great 
weigh t.l    Alexander  v.  Alexandria,  5  [40} 
Cranch,  1,  7,  8,  3  L.  ed.  10-21 ;  United  SUtea 
V.  Freeman,  3  How.  556,  564,  565,  11  L.  ed. 
724,  727,  728;  Cope  v.  Cope,  137  U.  &  682, 
688,  34  L.  ed.  832,  834,  11  Sup.  Ct  Rep. 
222. 

The  second  question,  as  stated,  is  sought 
to  be  raised  under  the  stipulation  of  the  bill 
of  lading  (being  one  of  the  conditions  filed 
with  the  tariffs  under  the  interstate  com- 
merce act)  that  the  carrier  is  not  bound 
to  transport  "by  any  particular  train  or 
vessel,  or  in  time  for  any  particular  mar- 
ket, or  otherwise  than  with  reasonable  des- 

iThe  language  of  the  Carmack  amend- 
ment has  been  construed  in  various  decisions 
by  state  courts  as  embracins  damages  for 
delay.  Ft.  Smith  4(  W.  R.  Co.  v.  Awbrey, 
39  Okla.  270,  134  Pao.  1117;  Southern  P. 
Co.  T.  L^on,  —  Hiss.  — ,  66  So.  209;  Peooa 
ft  N.  T.  R.  Co.  V.  Cox,  —  Tex.  Civ.  App.  — , 
150  S.  W.  265;  Norfolk  Truckers  Exch.  v. 
Norfolk  Southern  R.  Co.  116  Va.  466,  82 
S.  E.  02.  Contra,  Byers  v.  Southern  Exp. 
Co.  165  N.  C.  542,  81  S.  E.  741. 


4<M2 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Tnat, 


pateh."    See  Chicago  k  A.  R.  Go.  ▼.  Kirby, 
225  U.  S.  155,  56  L.  ed.  1033,  32  Sup.  Ct. 
Rep.  648,  Ann.  Cas.  1914A,  501;  Atchison, 
T.  &  S.  F.  R.  Co.  y.  Robinson,  233  U.  S.  173, 
58  Lb  ed.  901,  34  Sup.  Ct.  Rep.  556.     But 
the  argument  upon  this  point  is  not  ad- 
dressed to  the  issue,  as  recovery  was  not 
sought  or  permitted,  except  for  a  failure 
to  transport  with  reasonable  despatch.    The 
declaration  alleged  that  the  berries  "were 
to  be  transported  with  safety,  and  with  rea- 
sonable despatch,  and  delivered     ...     in 
safe   condition   and    with    reasonable    dili- 
gence;" that  the  defendant,  or  its  connect- 
ing lines,  did  not  "transport  or  deliver  the 
same  with  reasonable  despatch;''  and  that 
the  damage  was  due  to  their  failure  to  use 
"due  and  reasonable  diligence."    The  court 
instructed  the  jury  that  it  became  the  duty 
of  the  defendant  and  all  connecting  lines  "to 
use  reasonable  care,  diligence,  and  exertion 
in  forwarding  and  transporting  and  deliver- 
ing" the  berries,  and  that  if  the  jury  should 
believe  that  the  defendant  and  the  connect- 
ing lines,  or  any  of  them,  "did  not  use  such 
care,  diligence,  and  exertion,"  and  that  by 
reason  of  the  failure  so  to  do  the  berries 
arrived  "too  late  for  the  market  of  the  day 
on  which  they  would  have  arrived  if  they 
had  been  forwarded  and  transported  with 
such  care,  diligence,  and  exertion,  and  that 
the   plaintiff  thereby   sustained   loss,   then 
their  verdict  should  be  for  the  plaintiff."  As 
the  court  of  appeals  of  Maryland  said,  the 
ground  of  the  [41]  action  was  "the  failure 
to  carry  with  reasonable  despatch,  and  the 
loss  of  marketability  is  mentioned  as  the 
element  of  damage."    That  is,  the  reference 
to  the  market  said  to  have  been  lost  was 
merely  for  the  purpose  of  calculating  dam- 
ages which  were  sought  solely  because  of 
lack  of  reasonable  diligence,  and  not  upon 
the  allegation  of  any  added  duty  with  re- 
spect to  a  particular  train  or  market.    The 
stipulation   invoked   does   not   attempt   to 
limit  the  duty  of  the  carrier  to  transport 
with  reasonable  despatch,  and  we  are  not 
called  upon  to  consider  its  effect  in  any 
other  aspect. 

The  instructions,  however,  permitted  the 
jury  to  award  as  damages  the  amount  of 
the  decline  in  value,  due  to  the  delay,  at 
the  place  of  destination,  without  stating  the 
limitation  set  forth  in  the  tariff  of  the 
plaintiff  in  error  as  filed;  and  this  tariff, 
with  the  accompanying  conditions,  duly  of- 
fered in  evidence,  was  excluded.  It  was  con- 
ceded by  the  court  of  appeals  that  these 
rulings  were  erroneous,  but  the  court  foimd 
that  they  worked  no  harm  to  the  plaintiff 
in  error.  The  condition  in  the  bill  of  lad- 
ing and  in  the  filed  tariff  provided  that  "the 
amount  of  any  loss  or  damage  for  which 
any  carrier  is  liable  shall  be  computed  on ' 
SJ0 


the  basis  of  the  value  of  the  property  (being 
the  bona  fide  invoice  price,  if  any,  to  tht 
consignee,  including  the  freight  ehargea,  if 
prepaid)  at  the  place  and  time  of  shipment 
under  this  bill  of  lading,  unleaa  a  lower 
value  has  been  represented  in  writing  by 
the  shipper  or  has  been  agreed  upon  or  U 
determined  by  the  classification  or  tariffs 
upon  which  the  rate  is  based,  in  any  of 
which  events  such  lower  value  shall  be  the 
maximum  amount  to  govern  such  computa- 
tion, whether  or  not  such  loss  or  damage 
occurs  from  negligence."    Treating  the  rate 
charged    for   the   transportation    as   based 
upon  assent  to  this  provision,  the  court  of 
appeals   construed    the   stipulation   not  as 
changing  the  basis  of  liability,  but  aa  limit- 
ing the  amount  of  the  recovery  in  any  event 
to  the  value  of  the  property  [42]  at  the 
time  and  place  of  shipment,  no  other  value 
having  been  agreed  upon.  Adams  Exp.  Co.  ▼. 
Croninger,  226  U.  S.  491,  57  L.  ed.  314,  44 
L.RJl.(N.S.)    257,  33   Sup.   Ct.   Rep.   148; 
Wells,  F.  k  Co.  V.  Neiman-Marcus  Co.  227 
U.  S.  469,  57  L.  ed.  600,  33  Sup.  Ct.  Rep. 
267;  Boston  k  M.  R.  Co.  v.  Hooker,  233  U. 
S.  97,  58  L.  ed.  868,  L.R.A.1915B,  450,  Ann. 
Caa  1915D,  593;   George  N.  Pierce  Co.  ▼. 
Wells,  F.  k  Co.  236  U.  S.  278,  59  L.  ed.  576, 
35  Sup.  Ct.  Rep.  351.    It  appeared  from  the 
evidence  that  the  berries  were  sold  in  New 
York  city  at  an  average  price  of  6}  cents  a 
quart.    It  was  also  proved  that  the  decline 
in  value  due  to  the  delay  was  from  2  to  3 
cents  a  quart.    The  jury  gave  a  verdict  for 
$180.48,  which  included  $153.60,  principal, 
and  $26.88  interest.    That  Is,  the  jury  gave 
damages  at  the  rate  of  2  cents  a  quart  for 
the  240  crates  (7,680  quarts)  shipped.    The 
court  held  that  it  could  not  be  said,  aa  the 
defendant   contended,    that    there    was    no 
proof   of   actual   damage   from   the  delay; 
and  that,  so  far  as  the  maximum  liability 
fixed  by  the  filed  tariff  was  concerned,  the 
court  was  justified  in  taking  the  value  of 
the  berries  at  the  time  and  place  of  ship- 
ment as  being  at  least  equal  to  the  2  centa 
a  quart  allowed.    Upon  this  point  the  court 
of  appeals  said:     "It  may  be  judicially  as- 
sumed  that  their  value  at  the  time  and 
place  of  shipment  was  at  least  equal  to  the 
2  cents  per  quart  which  the  Jury  allowed 
as  damages,  and  in  the  view  we  have  taken 
of  the  case  no  just  purpose  would  be  aerved 
in  reversing  the  judgment  and  subjecting 
the  parties  to  the  expense  of  a  new  trial." 
That  is  to  say,  upon  the  facta  as  the  state 
court  found  them  to  be,  the  agreed  maxi- 
mum of  liability  as  stipulated  was  not  ex- 
ceeded. 

We  cannot  say,  in  the  light  of  the  evi- 
dence, that  the  state  court  denied  to  the 
plaintiff  in  error  any  Federal  right  in  hold- 
ing aa  it  did  with  respect  to  the  amount 

S40  U.  S. 


ms. 


LOOMIS  Y.  LEHIGH  VALLEY  K.  CX). 


42,48 


€f  the  ndne  of  the  berries  at  the  time  and 
pliee  of  ehipment,  and  in  thia  view  we  are 
viable  to  eonelude  that,  in  disposing  of  the 
Federal  questi<ms,  there  was  anj  error 
wbieh  would  require,  or  justify,  a  reversal. 
Jud^ent  affirmed. 


[43]  LESLIE  G.  LOOMIS  and  Leslie  G. 
Loomis,  Jr.,  Plffs.  in  Err., 

V. 

LEHIGH   VALLEY  RAILROAD   COM- 
PANY. 

(See  8.  C.  Reporter's  ed.  49-61.) 

State  Cioorts  —  JorlsdlcUon  ^  salt 
against  interstatft  carrier  — >  necessity 
of  acUon  by  Interstate  Conuneroe 
Commission. 

Without  preliminary  action  by  the  In- 
terstate Commerce  Commission  a  state  court 
his  no  jurisdiction  of  an  action  by  shippers 
to  recover  from  an  interstate  carrier  sums 
expended  .by  them  in  constructing  grain 
doors  or  bullcheads  in  cars  furnished  by  the 
Ctfrier  for  interstate  carload  shipments  of 
fam  products  in  bulk,  the  applicable  duly 
filed  interstate  rate  schedules  making  no 
nferenoe  to  allowances  for  grain  doors  or 
bulkheads. 

[for  other  cases,  see  Courts.  VI.  a;  Carriers, 
UI.  c  in  Digest  Sup.  Ct.  1008.1 

[No.  106.] 

Aigued  December  6,  1015.    Decided  January 

24,  1016. 

IK  ERROR  to  the  Supreme  Court  of  the 
State  of  New  York  in  and  for  the  County 
<rf  Ontario  to  review  a  judgment  entered 
pursuant  to  the  mandate  of  the  Court  of 
Appeals  of  that  state,  which  modified,  and 
affirmed  as  modified,  a  judgment  of  the  Ap- 
P^ate  Division  of  the  Supreme  Court, 
Fourth  Department,  directing  a  judgment 
for  the  plaintiffs  upon  a  verdict  in  their 
^vor  at  a  trial  term  of  the  Supreme  Court 
|a  an  action  by  shippers  to  recover  from  an 
iitterstate  carrier  sums  expended  by  them 
^  constructing  grain  doors  or  bulkheads  in 
^*n  furnished  by  the  carrier.    Affirmed. 

See  same  case  below,  in  appellate  division, 
U7  App.  Div.  105,  132  N.  Y.  Supp.  138; 
hi  court  of  appeals,  208  N.  Y.  312,  101  N. 
B.007. 

Xhe  faets  are  stated  in  the  opinion. 

Mr.  Edward  P.  White  argued  the  cause, 
And,  with  Mr.  John  Colmey,  filed  a  brief  for 
Plahitiffs  in  error: 

It  was  the  common-law  duty  of  the  de- 
fendant to  furnish  the  lumber  in  suit. 

Hutchinson,  Oarr.  §  407 ;  Cincinnati,  N.  O. 
•OL.  ed. 


.  ft  T.  P.  R.  Co.  V.  N.  K.  Fairbanks  ft  Co.  3S 
I  C.  C.  A.  611,  62  U.  S.  App.  231,  00  Fed. 
467;  Hilton  Lumber  Co.  v.  Atlantic  Coast 
Ldne  R.  Co.  141  N.  C.  171,  6  L.RJL(NJ3.) 
225,  53  S.  E.  823;  'Chicago  ft  A.  R.  Co.  v. 
Davis,  150  lU.  58,  50  Am.  St.  Rep.  143,  48 
N.  E.  382;  New  York  SUte  Shippers'  Pro- 
tective Asso.  V.  New  York  C.  ft  H.  R.  R.  Co. 
2  P.  S.  C.  R.  (2d  DUt.  N.  Y.)  251. 

An  action  will  lie  at  common  law  in 
favor  of  the  plaintiffs  against  the  defend- 
ant for  the  moneys  so  paid,  laid  out,  and 
expended  by  the  plaintiffs  for  the  defend- 
ant. 

Goodale  v.  Lawrence,  88  N.  T.  513,  42  Am. 
Rep.  250;  Farron  v.  Sherwood,  17  N.  T. 
227. 

While  the  suction  is  one  at  law,  yet  the 
essence  of  it  is  in  equity.  It  Is  in  its  nature 
equitable,  and  is  founded  upon  the  principle 
of  fair  play,~that  is,  no  man  should  be 
compelled  to  pay  another  man's  debts. 

Commercial  Nat.  Bank  v.  Sloman,  12i 
App.  Div.  874,  106  N.  Y.  Supp.  508;  Rob- 
erto V.  Ely,  113  N.  Y.  131,  20  N.  E.  606; 
Xeass  V.  Mercer,  15  Barb.  321;  Norton  v. 
Coons,  6  N.  T.  40. 

The  common -law  duty  asserted  by  the 
plaintiffs  is  reaflirmed  by  §  1  of  the  inter- 
stote  commerce  act,  the  liability  of  the  de- 
fendant is  necessarily  implied  by  §  15,  and 
the  common-law  remedy  is  expressly  saved 
by  S  22. 

Pennsylvania  R.  Co.  v.  Puritan  Coal  Min. 
Co.  237  U.  S.  121,  50  L.  ed.  867,  35  Sup.  Ct. 
Rep.  484;  Eastern  R.  Co.  v.  Littlefield,  237 
U.  8.  140,  50  L.  ed.  878,  35  Sup.  Ct  Rep. 
480;  Illinois  C.  R.  Co.  v.  Mulberry  HiU 
Coal  Co.  238  U.  8.  275,  50  L.  ed.  1306,  35 
Sup.  Ct.  Rep.  760. 

The  common-law  duty  asserted  in  this 
action  was  enforceable  at  the  place  of  ship- 
ment by  the  courts  of  the  state  of  New 
York,  whatever  the  destination  of  the 
freight. 

Chicago,  M.  ft  St.  P.  R.  Co.  v.  Solan,  169 
U.  S.  133,  42  L.  ed.  688,  18  Sup.  Ct.  Rep. 
280;  Atlantic  Coast  Line  R.  Co.  v.  Mazur- 
sky,  216  U.  S.  122,  54  L.  ed.  411,  30  Sup. 
Ct.  Rep.  378;  People  ex  rel.  Pennsylvania 
R.  Co.  V.  Knight,  171  N.  Y.  354,  08  Am.  St. 
Rep.  610,  64  N.  E.  162,  102  U.  S.  21,  48  L. 
ed.  325,  24  Sup.  Ct.  Rep.  202;  New  York, 
N.  H.  ft  H.  R.  Co.  V.  New  York,  165  U.  S. 
628,  41  L.  ed.  853,  17  Sup.  Ct.  Rep.  418; 
Missouri  P.  R.  Co.  v.  Larabee  Flour  Mills 
Co.  211  U.  S.  612,  53  L.  ed.  352,  20  Sup. 
Ct.  Rep.  215;  Louisville  ft  N.  R.  Co.  v.  F.  W. 
dook  Brewing  Co.  223  U.  S.  70,  56  L.  ed. 
355,  32  Sup.  Ct.  Rep.  180;  Missouri  P.  R. 
Co.  V.  Castle.  224  U.  S.  541,  66  L.  ed.  876, 
32  Sup.  Ct.  Rep.  606. 

fbVl 


SUPRSME  OOUBT  OF  THE  UNITED  STATES. 


Oct.  Temm, 


Mr.  Iijnuui  M.  Bam  argued  the  oauw, 
and,  with  Messrs.  Daniel  J.  Kenefick  and 
niomas  R.  Wheeler,  filed  a  brief  for  de- 
fendant in  error: 

The  courts  of  the  state  of  New  Toxk  had 
no  jurisdiction  over  the  interstate  ship- 
ments involved,  since  Congress  had  legis- 
lated upon  the  field  covering  such  inter- 
state "transportation,''  and  had  assumed 
exclusive  jurisdiction  thereof. 

Boston  ft  M.  R.  Go.  v.  Hooker,  233  U.  S. 
97,  68  I4.  ed.  868,  L.RJI.  1915B,  460,  34  Sup. 
Ct.  Rep.  626,  Ann.  Cas.  1916D,  693;  Victor 
Fuel  Co.  V.  Atchison,  T.  ft  S.  F.  R.  Co.  14 
Inters.  Com.  Rep.  119;  George  N.  Pierce  Co. 
V.  Wells,  F.  ft  Co.  236  U.  S.  278,  69  L.  ed. 
676,  36  Sup.  Ct.  Rep.  361;  Chicago  ft  A.  R. 
Go.  V.  Kirby,  226  U.  S.  166,  66  L.  ed.  1033, 
82  Sup.  Ct.  Rep.  648,  Ann.  Cas.  1914A,  601 ; 
Kansas  City  Southern  R.  Co.  v.  C.  H.  Albers 
Commission  Co.  223  U.  S.  673,  66  L.  ed. 
666,  82  Sup.  Ct.  Rep.  316;  Armour  Packing 
Co.  V.  United  States,  209  U.  S.  66,  72,  62 
L.  ed.  681,  691,  28  Sup.  Ct.  Rep.  428;  New 
Toric,  N.  H.  ft  H.  R.  Co.  V.  Interstate  Com- 
merce Commission,  200  U.  S.  361,  391,  60 
L.  ed.  616,  621,  26  Sup.  Ct.  Rep.  272;  Texas 
ft  P.  R.  Co.  V.  Abilene  Cotton  Oil  Co.  204 
U.  8.  426,  61  L.  ed.  663,  27  Sup.  Ct.  Rep. 
860,  0  Ann.  Cas.  1075;  LouisviUe  ft  N.  R. 
Co.  V.  MoHley,  219  U.  S.  467,  66  L.  ed.  297, 
34  LJLA.(NJ3.)  671,  31  Sup.  Ct.  Rep.  266; 
Pennsylvania  R.  Co.  v.  Puritan  Coal  Min. 
Co.  237  U.  S.  121,  69  L.  ed.  867,  36  Sup. 
Ct.  Rep.  484;  Pennsylvania  R.  Co.  v.  Clark 
Bros.  Coal  Min.  Co.  238  U.  S.  466,  69  L.  ed. 
1406,  36  Sup.  Ct.  Rep.  896;  Chicago,  R.  L 
ft  P.  R.  Co.  V.  Hardwick  Farmers'  Elevator 
Co.  226  U.  S.  426,  67  L.  ed.  284,  46  L.RA. 
(NJ3.)  203,  33  Sup.  a.  Rep.  174;  Southern 
R.  Co.  V.  Reid,  222  U.  S.  424,  66  L.  ed.  267, 
32  Sup.  Ct.  Rep.  140;  Robinson  v.  Balti- 
more ft  0.  R.  Co.  222  U.  S.  606,  66  L.  ed. 
288,  32  Sup.  Ct  Rep.  114;  Texas  ft  P.  R. 
Co.  V.  Abilene  Cotton  Oil  Co.  204  U.  S.  426, 
446,  61  L.  ed.  663,  661,  27  Sup.  a.  Rep. 
860,  9  Ann.  Gas.  1076;  McNeill  v.  Southern 
R.  O).  202  U.  S.  643,  60  L.  ed.  1142,  26  Sup. 
Ot  Rep.  722;  Baltimore  ft  0.  R.  Co.  v. 
United  Slates,  216  U.  S.  481,  64  L.  ed.  292,' 
SO  Sup.  Ct.  Rep.  164;  Atlantic  Coast  Line 
R.  Co.  V.  Macon  Grocery  Co.  02  C.  C.  A.  114, 
166  Fed.  206,  affirmed  in  216  U.  S.  50  i .  54 
L.  ed.  300,  30  Sup.  Ct.  Rep.  184;  AtchiBon, 
T.  ft  S.  F.  R.  Go.  T.  United  SUtes,  232  U.  S. 
199,  68  L.  ed.  668,  34  Sup.  Ct  Hep.  291; 
Mitchell  Goal  ft  Ooke  Co.  v.  Pennsylvania 
R.  Co.  230  U.  S.  247,  258,  269,  67  L.  ed. 
1472,  1476,  1477,  83  Sup.  Ct.  Rep.  916; 
Morrisdale  Coal  Co.  t.  Pennsylvania  R.  Ca. 
280  U.  S.  304,  67  L.  ed.  1494,  38  Sup.  Ct 
Bsp.  938;  Pennsylvania  R.  Go.  T.  Interna- 
tional Coal  Min.  Go.  230  U.  S.  184,  67  L.  ed. 
1446,  33  Sup.  Ct.  Rep.  893,  Ann.  Gas.  1916A« 
518 


316;  Atchison,  T.  ft  S.  F.  E.  Go.  t.  United 
SUtes,  232  U.  S.  199,  68  L.  ed.  668,  34  Sup. 
Ct  Rep.  291;  National  Wholesale  Lumber 
Dealers'  Asso.  v.  Atlantic  Coast  Line  R.  Go. 
14  Inters.  Com.  Rep.  164. 

*Mr.  Justice  McReynoIds  delivered  th« 
opinion  of  the  court: 

Plaintiffs  in  error  have  long  been  ship- 
pers of  grain  and  produce  over  the  line  of 
defendant  carrier  from  Victor  and  other  sta- 
tionif  in  Western  New  York.  From  time  to 
time  during  a  period  beginning  in  August, 
1906,  and  ending  [47]  May  6,  1908,  they 
requested  it  to  furnish  at  such  places  for 
their  use  one  or  more  cars — about  two  hun- 
dred altogether — suitable  for  transporting 
in  bulk,  wheat,  oats,  rye,  apples,  cabbages, 
and  potatoes.  In  response,  it  sent  ordinary 
box  and  refrigerator  cars  inadequate  for  the 
required  service  untU  fitted  with  inside 
doors  or  transverse  bulkheads.  Prior  to 
1906,  in  like  circumstances,  the  custom  was 
for  the  railroad  to  supply  lumber  without 
charge  and  shippers  constructed  these  tem- 
porary fittings.  This  practice  was  discon- 
tinued at  the  stations  mentioned,  and,  dur- 
ing the  period  specified,  it  refused  either  to 
supply  such  material  or  cars  completely 
prepared  for  carrying  in  bulk  the  enumer- 
ated articles.  Plaintiffs  were  therefore  com- 
pelled to  construct  inside  doors  or  bulk- 
heads in  the  cars  which  they  loaded  and 
delivered  to  defendant  for  transportation  to 
points  both  within  and  beyond  the  stnte. 
The  total  cost  of  material  used  was  $322.07, 
— it  varied  from  40  cents  to  $3.60  per  car. 

Payment  of  the  amount  so  expended  was 
demanded  by  plaintiffs  and  refused.  With- 
out preliminary  resort  to  the  Interstate 
Commerce  Commission,  they  then  brought 
this  action  in  a  state  court  upon  the  theory 
that  the  carrier  having  failed  to  perform 
its  common-law  duty  to  furnish  s^dequate 
cars,  they  were  entitled  to  recover  as  dam- 
ages their  consequent  outlay.  Defendant 
denied  liability,  and  further  challenged  the 
court's  jurisdiction  over  claims  incident  to 
interstate  shipments  because:  It  was  and 
remains  an  interstate  carrier  subject  to  the 
act  to  regulate  commerce  as  amended  and 
supplemented  as  well  as  the  act  of  Congress 
passed  February  19,  1908  [82  Stat  at  L. 
847,  chap.  708,  Comp.  Stat  1918,  f  8697], 
known  as  the  Elkins  act,  etc;  it  had  filed 
with  the  Interstate  Commerce  Commission 
the  tariffs  under  which  such  shipments  were 
made;  these  tariffs  fixed  rates  for  trana- 
portation  only,  and  did  not  provide  for  pay- 
ments or  allowances  for  grain  doors,  bulk- 
heads, or  lumber  for  [48]  constructing  the 
same;  the  rates  were  reasonable  and  Just 
and  had  not  been  held  otherwise  by  the 
Interstate  Ccmimerce  Commission. 

240  V.  8. 


ins. 


LOOMIS  T.  LEHIQH  VALLSY  R.  CO. 


48^60 


The  eonrt  of  appeals  held  that  the  com- 
mon law  impoted  upon  the  railroads  the 
duty  of  furnishing  cars  equipped  with  in- 
side doors  or  bulkheads  for  transporting 
grain  or  provisions  in  bulk,  and  unless  local 
or  Federal  statutes  had  established  difTerent 
rules,  plaintiffs  were  entitled  to  recorer. 
Having  considered  the  statutes,  it  concluded 
the  local  act  created  no  bar  to  recovery  on 
account  of  the  intrastate  shipments,  but  that 
Congress  had*  assumed  such  control  over  in- 
terstate shipments  as  to  deprive  the  state 
courts  of  power  to  consider  claims  arising 
out  of  them.  208  N.  Y.  312,  101  N.  E.  907. 
The  judgment  of  the  appellate  division  in 
favor  of  plaintiffs  for  total  cost  of  material 
supplied  bj  them  was  modified  accordingly 
and  the  record  and  proceedings  remitted  to 
the  supreme  court,  Ontario  county.  This 
irrit  of  error  was  then  sued  out  to  obtain  a 
review  of  the  judgment  of  the  court  of  ap- 
peals, being  addressed  to  the  supreme  eourt 
because  the  record  was  in  its  possession. 
Shanks  v.  Delaware,  L.  &  W.  R.  Co.  239  U. 
6.  556,  ante,  436,  36  8up.  Ct.  Rep.  188. 

Ko  Krious  dispute  exists  ooncerning  the 
facts.    Tlie  applicable  duly-filed  interstate 
rate  schedules  made  no  reference  to  allow- 
ances for  grain  doors  or  bulkheads,  and  the 
circumstances  under  which  these  were  in- 
•tmlled,   together  with  their  cost,   are  not 

'Controverted.  Whether  there  was  jurisdic- 
tion in  the  state  court  to  pass  upon  the  car- 
rier'! liability  incident  to  the  interstate 
^rmffie  is  the  sole  point  demanding  c<msid- 

oration. 

The  effect  of  the  act  to  regulate  commerce, 
-^H  lupplemented  and  amended,  upon  the 
jurisdiction  of  courts,  has  been  expounded 
in  many  cases  heretofore  decided.  Texas  & 
P.  R.  Co.  V.  Abilene  Cotton  Oil  Co.  204  U. 
'S-  426.  61  L.  ed.  553.  27  Sup.  Ct.  Rep.  350, 
'^  Ann.  Cas.  1075;  Baltimore  &  0.  R.  Co. 
'''  United  States,  215  U.  S.  481,  54  L.  ed. 
^»  30  Sup.  Ct.  Rep.  164;  Robinson  v. 
^itimore  &  0.  R.  Co.  222  U.  S.  506,  56  L. 
^<^-  288,  32  Sup.  a.  Rep.  114;  Mitchell  [49] 
^1   A  Coke  Co.  V.  Pennsylvania  R.  Co.  230 

^  S.  247,  57  L.  ed.  1472,  33  Sup.  a.  Rep. 

^^^5   ^Bforrisdale  Coal  Co.  v.  Pennsylvania  R. 

y^  5^30  U.  S.  304,  57  L.  ed.  1494,  33  Sup. 

^  ^ep.  938 :  Minnesota  Rate  Cases  ( Simp- 

^^    ^.  Shepard)   230  U.  S.  352,  57  L.  ed. 

^^^»     48   L.R.A.(N.S.)    1151,   33    Sup.   Ct. 

jJfP-     729;  Texas  k  P.  R.  Co.  v.  American 


Tie 


Timber  Co.  234  U.  S.  138,  58  L.  ed. 


^^^»  34  Sup.  Ct  Rep.  885,  Pennsylvania  R. 
■^®-  ^-  Puritan  Coal  Min.  Co.  237  U.  S.  121, 
*^  ^-  ed.  867,  36  Sup.  Ct.  Rep.  484 ;  Penn- 
"^^^^nia  R.  Co.  V.  Clark  Bros.  Coal  Min. 
^-  238  U.  S.  456,  59  L.  ed.  1406,  36  Sup. 
^-  "Hep.  896. 

speaking  through  Mr.  Justice  Lamar  In 
*0  ti.  ed. 


Mitchell  Coal  &  Coke  C6.  T.  Pennsylvania 
R.  Co.  230  U.  S.  supra,  we  said  (p.  266)  t 
"The  courts  have  not  been  given  Jurisdiction 
to  fix  rates  or  practices  in  direct  proceed- 
ings,  nor  can  they  do  so  collaterally  during 
the  progress  of  a  lawsuit  when  the  action  is 
based  on  the  claim  that  unreasonable  allow- 
ances have  been  paid.  If  the  decision  of 
such  questions  was  conmiitted  to  different 
courts  with  different  juries  the  results 
would  not  only  vary  in  degree,  but  might 
often  be  opposite  in  character — ^to  the  ds- 
struction  of  the  uniformity  In  rate  and  prac- 
tice which  was  the  cardinal  object  of  the 
sUtute." 

In  the  liinnesota  Rate  Cases,  230  U.  8. 
supra,  we  further  said  (p.  419) :  'TIm 
dominating  purpose  of  the  statute  was  to 
secure  conformity  to  the  prescribed  stand- 
ards through  the  exs^ination  and  appre- 
ciation of  the  complex  facts  of  transporta- 
tion by  the  body  created  for  that  purpose; 
and,  as  this  court  has  repeatedly  held,  it 
would  be  destructive  of  the  system  of  regu- 
lation defined  by  the  statute  if  the  court, 
without  the  preliminary  action  of  the  Com- 
mission, were  to  undertake  to  pass  upon  the 
administrative  questions  which  the  statute 
has  priniarily  confided  to  it." 

And  in  Texas  &  P.  R.  Co.  v.  American 
Tie  &  Timber  Co.  234  U.  S.  supra,  the  rule 
was  thus  stated  (p.  146) :  "It  is  equally 
clear  that  the  controversy  as  to  whether 
the  lumber  tariff  included  cross-ties  was  one 
primarily  to  be  determined  by  the  Commis- 
sion in  the  exercise  of  its  power  concern- 
ing tariffs  and  the  authority  to  regulate 
conferred  upon  it  by  the  statute.  Indeed, 
we  think  it  is  indisputable  that  that  sub- 
ject is  directly  controlled  by  the  authori- 
ties which  establish  that,  for  the  preserva- 
tion of  the  uniformity  which  [50]  it  was 
the  purpose  of  the  act  to  regulate  com- 
merce to  secure,  the  courts  may  not  as  an 
original  question  exert  authority  over  sub- 
jects which  primarily  come  within  the  juris- 
diction of  the  Commission." 

An  adequate  coneideration  of  the  present 
controversy  would  require  acquaintance  with 
many  intricate  facts  of  transportation  and 
a  consequent  appreciation  of  the  practical 
effect  of  any  attempt  to  define  services  cov- 
ered by  a  carrier's  published  tariffs,  or  char- 
acter of  equipment  which  it  must  provide,  or 
allowances  which  it  may  make  to  shippers 
for  instrumentalities  supplied  and  services 
rendered.  In  the  last  analysis  the  instant 
cause  presents  a  problem  which  directly 
concerns  rate-making  and  is  peculiarly  ad- 
ministrative. Atchison,  T.  k  S.  F.  R.  Co. 
V.  United  SUtes,  232  U.  8.  199,  220,  58  L. 
ed.  199,  576,  34  Sup.  Ct.  Rep.  291.  And 
the    preservation    of    uniformity    and    pre- 


50,  61 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TEBMt 


▼ention  of  diBcrimination  render  essen- 
tial some  appropriate  ruling  by  the  Inter- 
state Commerce  Commission  before  it  may 
be  submitted  to  a  court.  See  Pennsyl- 
vania R.  Co.  ▼.  Puritan  Coal  Min.  Co. 
237  U.  S.  pp.  128,  129,  50  L.  ed.  871,  872, 
35  Sup.  Ct.  Rep.  484;  Pennsylvania  R.  Co. 
V.  Clark  Bros.  Coal  Min.  Co.  238  U.  S.  pp. 
469,  470,  59  L.  ed.  1412,  85  Sup.  Ct.  Rep. 
896. 

If,  in  respect  to  interstate  business,  the 
courts  of  New  York  may  determine,  as  origi- 
nal matters,  rate-making  problems,  those  in 
other  states  have  like  jurisdiction.  The  un- 
certainty and  confusion  which  would  neces- 
sarily result  is  manifest.  Ample  authority 
has  been  given  the  Commission,  in  cir- 
cumstances like  those  here  shown,  to  ad- 
minister proper  relief,  and  in  connection 
therewith  to  approve  some  general  rule  of 
action.  In  so  doing  it  would  effectuate  the 
great  purpose  for  which  the  statute  was 
enacted. 

On  June  1,  1908,  before  this  proceeding 
was  begun,  the  Interstate  Commerce  Com- 
mission ruled:  "A  carrier  may  not  lawfully 
reimburse  shippers  for  the  expense  incurred 
in  attaching  grain  doors  to  box  cars  unless 
expressly  so  provided  in  its  tariff."  (Con- 
ference Ruling  No.  78.)  In  National  Whole- 
sale Lumber  Dealers'  Asso.  v.  Atlantic  Coast 
Line  R.  Co.  14  Inters.  Com.  Rep.  154,  [61] 
June  23, 1908,  after  much  consideration,  the 
Commission  refused  to  order  carriers  either 
to  furnish  flat  cars  equipped  in  all  respects 
for  transporting  lumber  or  grant  allowances 
for  cost  incurred  by  shippers  in  connection 
therewith.  In  New  York  State  Shippers' 
Protective  Asso.  v.  New  York  C.  &  H.  R. 
R.  Co.  30  Inters.  Com.  Rep.  437  (1914), 
the  regulations  and  practices  of  railroads 
in  Western  New  York  with  respect  to  car 
fittings  used  in  bulk  transportation  of  grain 
and  produce  were  challenged.  The  shippers 
claimed:  "It  is  the  carrier'*  duty  to  supply 
cars  at  all  seasons  of  the  year,  fully 
equipped  for  the  safe  transportation  of 
grain,  potatoes,  and  other  produce  in  bulk 
without  further  fitting;  or,  that  if  a  car 
be  tendered  the  shipper  which  cannot  safely 
be  used  for  such  commodities,  in  view  of 
their  nature  or  of  the  condition  of  the 
weather,  it  is  the  carrier's  duty  to  furnish, 
or  to  pay  for,  all  materials  and  labor  neces- 
sary to  render  the  car  reasonably  safe." 
This  was  denied.  The  opinions  in  these 
causes  strikingly  indicate  the  complicated 
administrative  problem  involved. 

We  find  no  error  in  the  judgment  below 
and  it  it  affirmed. 

ftao 


KANSAS    CITY    WESTERN    RAILWAY 
CX)MPANY,  Plff.  in  Err., 

V. 

GEORGE  B.  McADOW. 

(See  S.  0.  Reporter's  ed.  51-55.) 

error  to  state  court  —  scope  of  reriew 
— >  non-Federal  question. 

1.  No  question  under  the  laws  of  the 

United  States  which  may  be  reviewed  by 

writ  of  error  to  a  state  court  may  be  based 

upon  the  fact  that  the  M>plicabiuty  of  the 

Federal   employers'   liability   act   of   April 

22,    1908    (35   Stat,   at   L.   65,   chap.    149, 

Comp.  Stat.  1913,  §  8657),  first  appeared 

from    an    amendment    to    the    declaration 

which  alleged  the  same  facts  except  that 

it  did  not  allege,  as  did  the  amendment, 

that  plaintiff  was  injured  on  an  interstate 

trip. 

(For  other  cases,  see  Appeal  and  Error, 
2072-2226,   In   Digest   Sup.   Ct.    1908.] 

Pleading  —  amendment  —  bringing  case 

under    Federal    employers'    liability 

act. 

2.  The  allowance  of  an  amendment  to 
the  declaration  expressly  bringing  the  ac- 
tion within  the  Federal  employer's  liability 
act  of  April  22,  1908  (35  Stat,  at  L.  65, 
chap.  149,  Comp.  Stat.  1913,  §  8657),  in- 
fringes no  Federal  right  where  it  alleges  the 
same  facts  as  the  original  declaration,  with 
the  exception  of  an  additional  allegation 
that  plaintiff  was  injured  on  an  interstate 

trip. 

[Amendment  of  pleadings,  generally,  see 
Pleading,   I.  n.  In   Digest  Sup.  Ct.   1908.] 

Pleading  «  necessity  of  invoking  stat- 
ute —  employers'  liability  —  Judicial 
notice. 

3.  The  declaration  need  not  invoke  the 
Federal  employers'  liability  act  of  April 
22,  1908  (35  SUt.  at  L.  65,  chap.  149, 
Comp.  Stat.  1913,  §  8657),  in  terms,  if  the 
facts  stated  bring  the  action  under  that  stat- 
ute, since  the  law  governing  the  situation 
is  equally  the  law  of  the  state,  whether  de- 
rived from  Congress  or  the  state  legislature, 
and  must  be  noticed  by  the  courts. 

[For  other  cases,  see  Pleading,  II;  Bvidence, 
I.  b.  in  Digest  Sup.  Ct.  1908.] 

Error  to  state  court  —  scope  of  review. 

4.  Whether  state  or  congressional  legis- 
lation governs  a  personal-injury  action 
brought  by  an  employee  against  an  electric 

Note. — On  the  general  subject  of  writs 
of  error  from  United  States  Supreme  Court 
to  state  courts — see  notes  to  Martin  v. 
Hunter,  4  L.  ed.  U.  S.  97 ;  Hamblin  v.  West- 
em  Land  Co.  37  L.  ed.  U.  S.  267 ;  Re  Buch- 
anan, 39  L.  cd.  U.  S.  884;  and  Kipley  v. 
Illinois,  42  L.  cd.  U.  S.  998. 

On  what  questions  the  Federal  Supreme 
Court  will  consider  when  reviewing  the 
judgments  of  state  court — see  note  to  State 
ex  rel.  Hill  v.  Dockery,  63  L.R.A.  571. 

On  the  constitutionality,  application,  and 
effect  of  the  Federal  employers*  liability  act 
— see  notes  to  Lamphere  v.  Oregon  K.  ft 
Nav.  Co.  47  L.R.A.(N.S.)  38;  and  Seaboard 
Air  Line  R.  Co.  v.  Horton,  L.R.A.1915C,  47. 

240  U.  S. 


1915. 


KANSAS  CITY  W.  R.  00.  ▼.  McADOW. 


railway  company  need  not  be  determined 
by  tbe  Federal  Supreme  Court  on  writ  of 
error  to  a  state  court  to  review  a  judgment 
in  favor  of  the  employee,  wbere  the  state 
and  Federal  statutes  are  so  similar  that  the 
railway  company's  liability  does  not  appear 
to  be  affected  by  the  question  which  of  tnem 

foverned  the  case. 
For    other    cases,    see    Appeal    and    BIrror, 
2070-2226.   in   Digest   Sup.   Ct.   1008.] 

(No,  127.] 

Submitted  January  18,  1916.    Decided  Jan- 
uary 31,  1916. 

IN  ERROR  to  the  Kansas  City  Court  of 
Appeals  of  the  State  of  Missouri  to  r*> 
view  a  judgment  ifHiich  affirmed  a  judgment 
of  the  Circuit  Court  of  Jackson  County,  in 
that  state,  in  favor  of  plaintiff  in  a  per- 
sonal-injury action.    Affirmed. 

See  same  case  below,  —  Mo.  App.  — ,  164 
S.  W.  188. 
The  facta  are  stated  In  the  opinion. 

Messrs.  Charles  F.  Hntchlngs  and  Mc- 
Oabe  Moore  submitted  the  cause  for  plain- 
tiff in  error: 

The  questions  of  fact  inherently  involve 
the  operation  and  effect  of  the  Federal  law 
and  are  therefore  reviewable. 

St.  Louis,  I.  M.  k  S.  R.  .Co.  v.  McWhirter, 
229  U.  a  265,  57  L.  ed.  1179,  33  Sup.  Ct. 
Rep.  862;  St.  Louis,  I.  M.  ft  S.  R.  Co.  v. 
Taylor,  210  U.  S.  281,  52  L.  ed.  1061,  28 
Sup.  Ct.  Rep.  620,  21  Am.  Neg.  Rep.  464; 
Kansas  City  Southern  R.  Co.  v.  C.  H.  Al- 
bers  Commission  Co.  223  U.  S.  673,  56  L.  ed. 
556,  32  Sup.  Ct.  Rep.  316;  Norfolk  &  W.  R. 
Co.  V.  Conley,  236  U.  S.  605,  59  L.  ed.  745, 
P.  U.  R.  1915C,  293,  86  Sup.  Ct.  Rep.  437. 

Plaintiff  in  error  was  not  a  common  car- 
rier of  interstate  commerce  by  railroad 
within  the  purview  and  contemplation  of 
the  Federal  statute  on  which  the  alleged 
cause  of  action  was  based. 

Omaha  ft  C.  B.  Street  R.  Co.  v.  Interstate 
Commerce  Commission,  230  U.  S.  324,  57  L. 
ed.  1501,  46  L.RA..(N.S.)  385,  33  Sup.  a. 
Rep.  890;  Kansas  City,  0.  B.  ft  Electric  R. 
Co.  V.  Railroad  Comrs.  73  Kan.  168,  84  Pac. 
755;  Sams  v.  St  Louis  ft  M.  River  R.  Co. 
174  Mo.  53,  61  LJRA..  475,  73  S.  W.  686. 

The  law  denies  the  right  to  plaintiff  to 
amend  his  declaration  asserting  a  right  of 
recovery  at  common  law,  so  that  a  right 
to  recover  under  a  statute  may  be  availed 
of. 

Union  P.  R.  Co.  v.  Wyler,  158  U.  S.  285, 
39  L.  ed.  983,  15  Sup.  Ct.  Rep.  877. 

If  it  be  a  departure  to  file  an  amended 
petition  in  which  the  cause  of  action  is 
based  on  a  state  statute,  it  certainly  is 
more  of  a  departure  to  base  the  cause  of 
action  in  an  amended  petition  on  the  Fed- 
60  L.  ed. 


I  eral  employers'  liability  act,  which  excludes 
;  the  concurrent  existence  of  any  common- 
law  action  for  negligence  arising  out  of  the 
facts  necessary  to  maintain  an  action  under 
its  provisions,  and  which  supersedes  and 
makes  inoperative  all  laws  of  the  states  by 
virtue  of  which  a  right  of  action  heretofore 
existed  to  enable  an  interstate  employee  to 
recover  damages  for  personal  injuries 
against  an  interstate  carrier. 

Cound  V.  Atchison,  T.  ft  S.  F.  R.  Co.  173 
Fed.  531;  Doherty,  Liability  of  Railroads 
to  Interstate  Employees,  p.  65;  Second  Em- 
ployers' Liability  Cases  (Mondou  v.  New 
York,  N.  H.  ft  H.  R.  Co.)  223  U.  S.  1,  56 
L.  ed.  327,  38  L.RA.(N.S.)  44,  32  Sup.  a. 
Rep.  178,  1  N.  C.  C.  A.  875. 

A  substantive  right  or  defense  arising 
under  the  Federal  employers'  liability  act 
cannot  be  lessened  or  destroyed  by  a  local 
rule  of  practice. 

Norfolk  Southern  R.  Co.  v.  Ferebee,  238 
U.  S.  269,  59  L.  ed.  1303,  35  Sup.  Ct.  Rep. 
781;  Atlantic  Coast  Line  R.  Co.  v.  Bumctte, 
239  U.  S.  199,  ante,  226,  36  Sup.  Ct.  Rep.  76. 

Messrs.  John  H.  Atwood  and  Oscar  8. 
Hill  submitted  the  cause  for  defendant  in 
error: 

There  was  in  fact  no  departure. 

Missouri,  K.  ft  T.  R.  Co.  v.  Wulf,  226  U. 
S.  570,  57  L.  ed.  355,  33  Sup.  Ct.  Rep.  135, 
Ann.  Cas.  1914B,  134;  Midland  Valley  R. 
Co.  V.  Ellis,  109  Ark.  206,  159  S.  W.  214; 
De  Valle  Da  Costa  v.  Southern  P.  Co.  100 
a  C.  A.  313, 176  Fed.  843;  Hudson  v.  South- 
west Missouri  R.  Co.  173  Mo.  App.  611,  150 
S.  W.  9;  Wabash  R.  Co.  v.  Hayes,  234  U.  S. 
86,  58  L.  ed.  1226,  34  Sup.  Ct.  Rep.  729,  6 
N.  C.  C.  A.  224;  Illinois  C.  R.  Co.  v.  Nelson, 
128  C.  C.  A.  525,  212  Fed.  69. 

This  court  will  not  review  questions  of 
state  procedure. 

Central  Vermont  R.  Co.  v.  White,  238 
U.  S.  507,  59  L.  ed.  1433,  35  Sup.  Ct  Ri';». 
865,  9  N.  C.  C.  A.  265;  Brinkmeier  v.  Mis- 
souri P.  R.  Co.  224  U.  S.  268,  56  L.  ed.  758, 
32  Sup.  Ct.  Rep.  412;  Texas  ft  N.  0.  R.  Co. 
V.  Miller,  221  U.  S.  408,  416,  55  L.  ed.  789, 
796,  81  Sup.  Ct.  Rep.  534. 

Under  the  evidence  in  this  case  there  can 
be  no  doubt  but  that  the  federal  employers' 
liability  act  applies. 

Second  Employers'  liability  Cases  (Mon- 
dou V.  New  York,  N.  H.  ft  H.  R.  R.  Co.) 
223  U.  S.  1,  56  L.  ed.  327,  38  L.RA.(N.S.) 
44,  32  Sup.  Ct.  Rep.  169,  1  N.  C.  C.  A.  875; 
Pedersen  v.  Delaware,  L.  ft  W.  R.  Co.  229 
U.  S.  146,  57  L.  ed.  1125,  83  Sup.  a.  Rep. 
648,  Ann.  Oas.  I914C,  153,  3  N.  C.  0.  A.  779; 
St.  Louis,  S.  P.  ft  T.  R.  Co.  v.  Scale,  229 
U.  S.  156,  57  L.  ed.  1129,  33  Sup.  Ct.  Rep. 
651,  Ann.  Cas.  19140,  156;  North  Carolina 
R.  Co.  V.  Zachary,  232  U.  S.  248,  58  L.  ed. 

ftai 


52-64 


SUPREBIB  COURT  OF  THB  UNITED  STATES. 


Oct.  Tkbic, 


691,  84  Sup.  Ct.  Rep.  305»  Ann.  Gas.  1014C» 
169,  9  K.  G.  0.  A.  109;  United  States  r. 
Colorado  &  K.  W.  R.  Go.  15  LJELA.(N.S.) 
167,  86  C.  a  A.  27,  157  Fed.  342,  13  Ann. 
Cas.  893;  Central  R.  Go.  t.  Colasurdo,  113 
G.  G.  A.  379,  192  Fed.  901;  Northern  P.  R. 
Co.  T.  Maerkl,  117  C  a  A.  237,  198  Fed.  1; 
Bennett  v.  United  States,  114  C.  G.  A.  403, 
194  Fed.  630;  Gloucester  Ferry  Go.  r.  Penn- 
sylvania, 114  U.  S.  196-203,  29  L.  ed.  158- 
161, 1  Inters.  Com.  Rep.  382,  6  Sup.  Gt.  Rep. 
826;  Covington  &  C.  Bridge  Go.  v.  Ken- 
tucky, 154  U.  8.  204,  217,  38  L.  ed.  962,  968, 
4  Inters.  Com.  Rep.  649,  14  Sup.  Ct.  Rep. 
1087 ;  The  Passaic,  100  Fed.  644. 

And  interurban  railroads  are  clearly  em- 
braced within  the  act. 

Omaha  ft  C.  B.  Street  R.  Co.  v.  Interstate 
Commerce  Commission,  230  U.  S.  324,  57 
L.  ed.  1501,  46  L.RA.(NJS.)  385,  33  Sup.  Ct. 
Rep.  890;  Spokane  ft  I.  E.  R.  Go.  t.  Camp- 
beU,  133  C.  C.  A.  370,  217  Fed.  518;  Wash- 
ington, A.  ft  Mt.  U.  R.  Co.  V.  Downey,  40 
App.  D.  G.  147. 

The  law  of  the  state  of  Kansas  appli- 
cable to  railroad  employees,  pleaded  by 
plaintiff  in  error  in  its  answer,  being  iden- 
tical in  effect  with  the  Federal  employers' 
liability  act,  the  question  of  whether  the 
defendant  in  error  was  engaged  in  intra- 
state or  interstate  commerce  is  immateriaL 

Chicago  ft  N.  W.  R.  Co.  v.  Gray,  237  U. 
S.  399,  59  L.  ed.  1018,  35  Sup.  Gt.  Rep.  620, 
9  N.  C.  G.  A.  452;  Illinois  C.  R.  Co.  t.  Nel- 
son, 128  C.  C.  A.  525,  212  Fed.  72. 

This  court  accepts  the  findings  of  the 
Kansas  City  court  of  appeals  upon  the 
question  of  fact  as  final,  and  imder  those 
findings  there  is  no  escape  for  plaintiff  in 
error  from  liability  in  this  case. 

Waters-Pierce  Oil  Co.  v.  Texas,  212  U.  S. 
97,  53  L.  ed.  424,  29  Sup.  Ct.  Rep.  220;  King 
T.  West  Virginia,  216  U.  S.  100,  54  L.  ed 
401,  30  Sup.  Ct.  Rep.  225;  Chrisman  v.  Mil- 
ler, 197  U.  S.  319,  49  L.  ed.  772,  25  Sup.  Ct 
Rep.  468. 

Mr.  Justice  Holmes  delivered  the  opinion 
of  the  court: 

This  is  an  action  for  personal  injuries, 
brought  by  the  defendant  in  error  against 
the  plaintiff  in  error,  in  whose  employ  he 
was.  The  original  petition  alleged  that  the 
defendant  operated  a  line  of  electric  rail- 
way extending  from  Leavenworth,  Kansas, 
through  Wolcott  and  Kansas  City,  in  the 
same  state,  into  Kansas  City,  Missouri; 
that  the  plaintiff  was  a.  motorman  up<m  a 
car  on  the  line  and  was  injured  in  Kansas 
by  a  collision  due  to  the  defendant's  negli- 
genesv  An  amendment  was  allowed  alleging 
that  the  [68]  plaintiff  was  injured  on  a 
trip  from  Kansas  C^ty,  Missouri,  to  Leaven- 
worth, with  further  details,  and  that  the 

6as 


defendant's  negligent  acts  were  in  violation 
of  the  act  of  Congress  controlling  such  mat- 
ters when  the  parties  were  engaged  in  com- 
merce among  the  states.  The  defendant  was 
a  Kansas  corporation  having  an  electric 
railway  from  Leavenworth  into  Kansas  City, 
Kansas.  It  had  a  traffic  agreement  with  the 
Metropolitan  Street  Railway  Company  oper- 
ating street  railways  in  Kansas  City,  Mis- 
souri, by  which  the  latter  was  to  receive 
the  cars  of  the  former,  carrying  passengers 
and  freight,  and  move  them  through  desig- 
nated streets  in  Missouri  and  back  to  Kan- 
sas; each  party  to  be  liable  for  damage  due 
to  its  negligence  during  this  part  of  the 
transit,  and  the  fares  and  freight  money  to 
he  divided  in  certain  proportions.  By  a 
later  agreement  the  route  was  modified  and 
it  was  provided  that  the  defendant  should 
pay  the  trainmen's  wages  during  the  move- 
ment in  Missouri,  but  that  they  should  be 
under  the  exclusive  control  of  the  Metro- 
politan Company,  and,  as  between  said  com- 
panies, should  in  all  respects  be  regarded 
for  the  time  being  as  its  employees.  There 
was  evidence  that  in  fact,  at  the  time  of  the 
accident,  the  only  control  exercised  by  the 
Missouri  Company  was  to  put  a  conductor 
upon  the  car  to  receive  the  fares;  that  while 
in  Missouri  it  received  its  orders  from  the 
Kansas  side;  and  that  the  company  was 
in  the  hands  of  receivers,  who  seem  not  to 
have  recognized  the  contract.  The  plaintiff 
got  a  verdict,  which  was  sustained.  The  er- 
rors assigned  are,  in  substance,  that  the 
amendment  expressly  bringing  the  case  un- 
der the  act  of  Congress  ought  not  to  have 
been  allowed;  that  the  act  does  not  apply  to 
electric  roads,  and  that,  if  it  does,  the  de- 
fendant was  not  engaged  in  commerce  among 
the  states,  or  at  least  was  not  if  the  con- 
tract between  the  companies  governed  the 
movement  of  the  car. 

As  to  the  first,  it  would  be  enough  to  say 
that  if  the  [64]  declaration  on  which  the 
case  was  tried  brought  it  under  the  act,  the 
fact  that  it  appeared  as  an  amendment  to 
one  that  alleged  the  same  facts  with  the  ex- 
ception of  the  plaintiff's  coming  from  be- 
yond the  state  raises  no  question  under  the 
laws  of  the  United  States.  Central  Vermont 
R.  Co.  V.  White,  238  U.  S.  507,  513,  59  L.  ed. 
1433,  1437,  35  Sup.  Ct.  Rep.  865,  9  N.  G.  C. 
A.  265;  Brinkmeier  v.  Missouri  P.  R.  Co. 
224  U.  S.  268,  270,  56  L.  ed.  758,  760,  32 
Sup.  Ct.  Rep.  412.  The  state  court  sus- 
tained the  amendment  on  the  ground  of 
waiver,  but  if  it  had  held  It  allowable  as  a 
matter  of  course,  no  Federal  right  would 
have  been  infringed.  Wabash  R.  Co.  ▼. 
Hayes,  234  U.  S.  86,  90,  58  L.  ed.  1226, 
1230,  34  Sup  Ct.  Rep.  729,  6  K.  C.  G.  A. 
224.  It  is  said  that  by  the  amendment  It 
gave  a  jurisdiction  to  the  Missouri  court 

140  U.  8. 


1915. 


GA8T  REALTY  &  L  00.  t.  SCHNEIDER  GRAKITE  00. 


64»  65 


that  otherwise  it  would  not  have  had  under 
ihe  act  of  April  6,  1910,  chap.  143,  36 
8Ut.  at  L.  291,  Comp.  SUt.  1918,  |  1010. 
Bnt  actions  of  tort  are  transitory,  and  the 
argument  based  on  the  act  of  1910  would 
have  no  application  unless  the  defendant 
was  engaged  in  business  governed  by  that 
Act.  The  argument  would  be  that  if  so 
engaged,  then,  under  the  statute,  the  inter- 
state road  could  not  be  sued  in  a  state  court 
onless  it  was  doing  business  in  that  state. 
We  express  no  assent  to  it,  but  if  sound 
it  would  afford  no  ground  for  objecting  to 
the  amendment;  and  no  question  of  juris- 
diction was  raised.  The  amendment  intro- 
duced no  fact  inconsistent  with  those  first 
alleged,  and  it  was  unnecessary  lli^en  the 
facts  were  stated  to  invoke  the  act  of  Con- 
fess in  terms.  The  law  governing  the  sit- 
uation is  equally  the  law  of  tlie  state, 
whether  derived  from  Congress  or  the  state 
legislature,  and  must  be  noticed  by  the 
•courts.  Grand  Trunk  Western  R.  Co.  v. 
Lindsay,  238  U.  S.  42,  48,  58  L.  ed.  838, 
S42,  34  Sup.  Ct.  Rep.  581,  Ann.  Cas.  1914C, 
168;  Second  Employers'  Liability  Cases 
(Mondott  T.  New  York,  N.  H.  k  H.  R.  Co.) 
223  U.  S.  1,  57,  56  L.  ed.  327,  349,  38  L.R.A. 
(N.S.)  44,  32  Sup.  Ct.  Rep.  169,  1  N.  0. 
€.  A.  875. 

The  defendant's  road  appears  to  be  of  the 
«lasa  of  the  traction  company  that  was  be- 
fore the  court  in  United  States  v.  Baltimore 
A  O.  S.  W.  R.  Co.  226  U.  S."  14,  57  L.  ed. 
104,  33  Sup.  Ct.  Rep.  5,  and  that  was  ex- 
cepted from  the  decision  in  Omaha  &  C.  B. 
Street  R.  Co.  v.  Interstate  Commerce  Com- 
mission, 230  U.  S.  324,  337,  57  L.  ed.  1501, 
1506,  46  L.R.A.(N.S.)  385,  33  Sup.  a.  Rep. 
890.  Such  roads  have  been  held  [55]  to  be 
within  the  act  of  Congress.  Spokane  ft  I.  E. 
R.  Co.  V.  Campbell,  133  C.  C.  A.  370,  217 
Fed.  518.  See  act  of  June  18, 1910,  chap.  300, 
i  12,  36  Stat,  at  L.  539,  552,  Comp.  SUt. 
1913,  f  8583.  So,  again,  many  cases  have 
intimated  that  the  technical  considerations 
by  which  the  defendant  seeks  to  establish 
that  it  was  not  engaged  in  commerce  among 
the  states  are  not  final.  Pennsylvania  R. 
Co.  T.  Clark  Bros.  Coal  Min.  Co.  238  U.  S. 
456,  467,  59  L.  ed.  1406,  1411,  35  Sup.  Ct 
Rep.  896;  Savage  v.  Jones,  225  U.  S.  501, 
520,  56  L.  ed.  1182,  1189,  32  Sup.  Ct.  Rep. 
715;  Swift  &  Co.  v.  United  bUtes,  196  U. 
S.  375,  398,  49  L.  ed.  518,  523,  25  Sup.  Ct. 
Rep.  276.  But  these  questions  really  are 
immaterial  here  since  the  Kansas  statute 
is  so  similar  to  that  of  the  United  States 
that  the  liability  of  the  defendant  does  not 
appear  to  be  affected  by  the  question  which 
of  them  governed  the  case.  In  such  circum- 
stances it  is  unnecessary  to  decide  which  law 
ai^lied.  Chicago  ft  N.  W.  R.  Co.  ▼.  Gray, 
«t  Ii.  ed. 


237  U.  S.  899,  59  L.  ed.  1018,  86  Sup.  Ct 
Rep.  620,  9  N.  C.  0.  A.  452. 
Judgment  affirmed. 


GAST  REALTY  ft  INVESTBfENT  COM- 
PANY and  Emily  Gast,  Plffs.  in  Err., 

V. 

SCHNEIDER  GRANITE  COMPANY. 

(See  S.  C.  Reporter's  ed.  55-^.) 

Oonstitutlonal  law  ^  due  process  of 
law  —  eqnal  prelection  of  the  laws  -• 
public  improvements  — >  assessment. 

A  municipal  ordinance  that,  in  creat- 
ing the  taxing  district  upon  which,  under 
the  city  charter,  three  fourths  of  the  cost 
of  paving  a  street  is  to  be  assessed  accord- 
ing to  area,  established  a  boundary  line  that, 
after  nmning  for  some  distance  on  a  line 
not  100  feet  back  from  the  street,  jumped 
to  nearly  500  feet,  when  it  encountered  an 
undivided  tract,  and  that  on  the  opposite 
side  of  the  street  was  150  feet  and  240  feet 
away,  violates  U.  S.  Const.,  14th  Amend., 
where  such  differences  were  not  based  upon 
any  consideration  of  difference  in  benefits 
conferred,  but  were  established  mechanical- 
ly, in  obedience  to  the  criteria  that  the 
charter  directed  to  be  applied. 

[For  other  cases,  see  Constitutional  Law, 
202-836,  550-581,  in  Diffest  Sup.  Ct.  1008.] 

[No.  211.] 

Argued  January  21, 1010.    Decided  January 

31,  1016. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Missouri  to  review  a  judgment 
which  affirmed  a  judgment  of  the  St.  Louis 
City  Circuit  Court  in  favor  of  plaintiff  in 
a  suit  to  collect  a  paving  tax.    Reversed.! 

See  same  case  below,  250  Mo.  153,  168  8. 
W.  687. 
The  facts  are  stated  in  the  opinion. 

Messrs.  Thomas  G.  Rntledge  and  David 
Goldsmith  argued  the  cause,  and,  with 
Messrs.  Jacob  M.  Lashly  and  Robert  A. 
Holland,  Jr.,  filed  a  brief  for  plaintiffs  in 
error: 

A  single  legislative  rule  for  fixing  benefit 
districts  in  a  city  for  special  assessments 
for  street  improvements  alike  for  platted 
and  unplatted  districts  by  providing  that 
the  district  line  be  drawn  half  way  between 
the  improved  streets  and  the  next  parallel 
street,  no  matter  how  far  distant  that 
street  may  be,  and  although  property  may 

1  Motion  for  leave  to  file  petition  for  re- 
hearing denied  March  20,  1016.  See  post, 
1230. 

Note. — On  the  right  to  subdivide  private 
owner's  land  for  the  purpose  of  assessment 
for  public  improvement---see  note  to  Chi- 
cago T.  Wells,  23  LJLA.(NJ3.)  405. 

MS 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Temu, 


be  subdivided  and  platted  on  one  side  of 
the  improvement  so  that  the  next  parallel 
street  is  far  distant,  is  repugnant  to  the 
14th  Amendment  to  the  Constitution  of 
United  States. 

Louisville  v.  American  Standard  Asphalt 
Co.  125  Ky.  497,  102  S.  W.  806;  Cooper  v. 
Xevin,  90  Ky.  86,  13  S.  W.  841;  McGrew  v. 
Kansas  City,  64  Kan.  61,  67  Pac.  438;  Gil- 
sonite  RooAng  k  Paving  Co.  v.  St.  Louis 
Fair  Asso.  231  Mo.  589,  132  S.  W.  657; 
Granite  Bituminoiis  Paving  Co.  v.  Fleming, 
251  Mo.  210,  158  S.  W.  4;  Loth  v.  St.  Louis, 
257  Mo.  399,  165  S.  W.  1023;  Schneider 
Granite  Co.  v.  Gast  Realty  &  Invest.  Co. 
259  Mo.  164,  168  S.  W.  692. 

The  etFect  of  this  charter  provision  of 
the  city  of  St.  Louis  is  clearly  shown  in 
numerous  reported  decisions  of  the  supreme 
court  of  Missouri,  in  which  it  was  passed 
upon  and  applied  to  platted  and  unplatted 
tracts,  regardless  of  the  resulting  injustice 
and  inequality. 

Gilsonite  Roofing  &  Paving  Co.  v.  St. 
Louis  Fair  Asso.  231  Mo.  594,  132  S.  W. 
657;  Granite  Bitiuninoiis  Paving  Co.  v. 
Fleming,  251  Mo.  216,  158  S.  W.  4;  Loth 
V.  St.  Louis,  257  Mo.  406,  165  S.  W.  1023; 
William  R.  Bush  Constr.,  Co.  ▼.  Withnell, 
185  Mo.  App.  408,  170  S.  W.  361. 

This  coiu*t  can  take  judicial  notice  of  the 
streets  of  the  city  of  St.  Louis,  their  rela- 
tion to  and  distance  from  each  other,  and 
of  the  fact  that  there  are  in  such  a  city, 
whose  bounds  are  established  by  public 
law,  and  therefore  judicially  known,  large 
unplatted  tracts  of  land  lying  in  close  prox- 
imity to  land  which  is  subdivided. 

Redell  v.  Moores,  63  Neb.  219,  55  L.R.A. 
740.  93  Am.  St.  Rep.  431,  88  N.  W.  243; 
Williams  v.  State,  64  Ind.  555,  31  Am.  Rep. 
135 :  Stout  V.  Grant  County,  107  Ind.  348,  8  N. 
E.  222;  Endlich,  Interpretation  of  Statutes, 
§  29;  1  Greenl.  Ev.  Lewis's  ed.  §  6;  Pacific 
Paving  Co.  v.  Verso,  12  Cal.  App.  362,  107 
Pac.  590;  Brady  v.  Page,  59  Cal.  52;  Stealey 
V.  Kansas  City,  179  Mo.  407,  78  S.  W.  599; 
Skelly  V.  New  York  Elev.  R.  Co.  7  Misc.  88, 
27  N.  Y.  Supp.  304;  McMastcr  v.  Morse,  18 
Utah,  27,  55  Pac.  70;  State  ex  rel.  Mason 
V.  Consumers'  Power  Co.  119  Minn.  225,  41 
L.RA.(N.S.)  1181,  137  N.  W.  1104,  Ann. 
Cas.  1914B,  19;  Gardner  v.  Eberhart,  82  111. 
316;  6  Wigmore,  Ev.  2d  ed.  §  2571,  pp.  673, 
674;  Jones  v.  United  States,  137  U.  S.  202, 
216,  34  L.  ed.  691,  697,  11  Sup.  Ct.  Rep.  80; 
State  ex  rel.  Keck  v.  Seibert,  130  Mo.  202, 
32  S.  W.  670;  Haaren  v.  Mould,  144  Iowa, 
296,  24  L.RA.(N.S.)  404,  122  N.  W.  921. 

The  power  of  the  legislature  in  providing 
for  the  assessment  of  special  taxes  for  local 
improvements  is  not  unlimited.  Any  rule 
or  proceeding  which  arbitrarily  charges  land 
with  an  assessment  greater  than  the  bene- 
524 


fits  is,  to  the  extent  of  the  excess,  a  taking 
of  private  property  for  public  use  without 
compensation. 

People  ex  rel.  Detroit  &  H.  R.  Co.  t» 
Salem,  20  Mich.  452,  4  Am.  Rep.  400;  Diets 
v.  Neenah,  91  Wis.  422,  64  N.  W.  299;  Nor- 
wood V.  Baker,  172  U.  S.  269,  278,  43  L.  ed, 
443,  447,  19  Sup.  Ct.  Rep.  137 ;  4  Dill.  Mun. 
Corp.  5th  ed.  §  1443,  p.  2567;  Cooley,  Taxn. 
2d  ed.  661;  State,  Agens,  Prosecutor,  v. 
Newark,  37  N.  J.  L.  421,  18  Am.  Rep.  729;. 
Stuart  V.  Palmer,  74  N.  Y.  189,  30  Am.  Rep. 
289;  King  v.  Portland,  38  Or.  414,  55  L.RJ^ 
812,  63  Pac.  2;  Preston  v.  Roberts,  12  Bush^ 
570;  Fulkerson  v.  Bristol,  105  Va.  555,  54 
S.  E.  468;  Hyattsville  v.  Smith,  105  Md. 
318,  66  Atl.  44;  Martin  v.  District  of  Co- 
lumbia, 205  U.  S.  135,  139,  51  L.  ed.  743,. 
744,  27  Sup.  Ct.  Rep.  440;  Davidson  v.  New 
Orleans,  96  U.  S.  97,  104,  108,  24  L.  ed.  616, 
619,  621;  2  Page  &  J..  Taxation  by  Assess- 
ment, §  665,  p.  1141;  White  v.  Gove,  18a 
Mass.  336,  67  N.  E.  359;  Getting  v.  Kansas 
City  Stock  Yards  Co.  (Cotting  v.  Godard) 
183  U.  S.  79,  110,  46  L.  ed.  92,  100,  22  Sup. 
Ct.  Rep.  30;  Gilsonite  Roofing  &  Paving 
Co.  V.  St.  Louis  Fair  Asso.  231  Mo.  589,  132 
S.  W.  657;  Hagar  v.  Reclamation  Dist.  Ill 
U.  S.  701,  708,  28  L.  ed.  569,  572,  4  Sup. 
Ct.  Rep.  663;  Louisville  &  N.  R.  Co.  v.  Bar- 
ber Asphalt  Paving  Co.  197  U.  S.  430,  49 
L.  ed.  819,  25  Sup.  Ct.  Rep.  466. 

A  general,  prospective  law,  providing  for 
the  apportionment  of  the  cost  of  an  im- 
provement, must,  in  order  to  be  valid,  pro- 
vide for  the  apportionment  by  some  rule 
capable  of  producing  reasonable  equality 
between  the  parties  assessed,  and  a  fair 
distribution  of  the  tax  proportionately  to 
the  benefits. 

Ibid. 

The  charter  provision  in  this  case  is  in- 
valid because  the  rule  provided  by  it  for 
the  apportionment  of  the  cost  of  the  im- 
provement is  not  capable  of  producing  rea- 
sonable equality  between  the  parties  as- 
sessed, is  not  based  upon  the  idea  of 
benefits,  and  makes  equality  and  justice 
and  apportionment  according  to  benefits 
legally  impossible.  It  is  a  vicious,  arbi- 
trary, and  capricious  rule  which  cannot  be 
justly  applied  to  unplatted  tracts  of  land, 
and  its  application  results  in  gross  inequal- 
ity and  injustice  and  practical  confiscation. 

Ibid. 

Mr.  Hickman  P.  Rodgers  argued  the 
cause,  and,  with  Mr.  William  K.  Koerner, 
filed  a  brief  for  defendant  in  error: 

The  charter  provisions  under  which  this 
assessment  was  made  are  not  repugnant  to 
the  14th  Amendment  of  the  Constitution  of 
the  United  States. 

Shumate  v.  Heman»  181  U.  S.  402,  45  L. 

240  U.  8. 


a9i5. 


GAST  REALTY  k  h  00.  y.  SCHNEIDER  GRANITE  CX). 


67-69 


€d.  922,  26  Sup.  Ct.  Rep.  645;  French  ▼. 
Barber  Asphalt  Paving  Co.  181  U.  S.  324, 
46  L.  ed.  879,  21  Sup.  Ct.  Rep.  626;  Schulte 
▼.  Heman,  189  U.  S.  607,  47  L.  ed.  922,  23 
Sup.  Ct  Rep.  862. 

An  Assessment  against  all  the  ground 
within  an  improvement  district  will  not  be 
overthrown  merelj  because  one  part  of 
ground  within  the  district  may  have  re- 
ceived greater  benefit  from  the  improve- 
ment than  another  part;  nor  for  the  reason 
that  the  improvement  does  not  adjoin  or 
abut  a  particular  piece  of  groimd  within 
such  district. 

Davidson  v.  New  Orleans,  96  U.  S.  97,  24 
L.  ed.  616;  KeUy  v.  Pittsburgh,  104  U.  S. 
78,  26  L.  ed.  658;  Hagar  v.  Reclamation 
Dist.  Ill  U.  S.  701,  28  L.  ed.  569,  4  Sup.  a. 
Rep.  663;  Spencer  v.  Merchant,  126  U.  S. 
345,  31  L.  ed.  763,  8  Sup.  Ct  Rep.  921 ;  FaU- 
brook  Irrig.  Dist  v.  Bradley,  164  U.  S.  112, 
41  L.  ed.  369,  17  Sup.  Ct.  Rep.  66;  Cleve- 
land, C.  C.  &  St.  L.  R.  Co.  V.  Porter,  210 
U.  S.  177,  184,  62  L.  ed.  1012,  1015,  28  Sup 
Ct.  Rep.  647. 

The  question  as  to  whether  a  particular 
piece  of  property  is  benefited  by  a  local 
improvement,  and  to  what  extent,  is  legis- 
lative, and  not  subject  to  Judicial  review. 

Spencer  v.  Merchant,  126  U.  S.  345,  31 
L.  ed.  763,  8  Sup.  Ct.  Rep.  921;  Webster 
V.  Fargo,  181  U.  S.  394,  46  L.  ed.  912,  21 
Sup.  Ct.  Rep.  623;  French  t.  Barber  Asphalt 
Paving  Co.  181  U.  S.  324,  46  L.  ed.  879,  21 
Sup.  Ct.  Rep.  625;  Chadwick  t.  Kelley,  187 
U.  S.  540,  545,  47  L.  ed.  293,  295,  23  Sup. 
Ct  Rep.  176;  Schaefer  v.  Werling,  188  U.  S 
516,  47  L.  ed.  670,  23  Sup.  Ct.  Rep.  449. 

Mr.  Justice  Holmes  delivered  the  opinion 
of  the  court: 

This  is  a  suit  to  collect  a  tax  for  paving 
Broadway,  a  street  in  St.  Louis,  levied  upon 
land  of  the  defendants  fronting  upon  that 
street  The  plaintiff,  defendant  in  error, 
did  the  work,  received  an  assignment  of  the 
tax,  and  got  a  judgment  for  the  amount. 
The  only  question  here  is  whether  the  ordi- 
nance levying  the  tax  under  the  charter  of 
the  city  is  consistent  with  the  14th  Amend- 
ment of  the  Constitution  of  the  United 
States.  The  charter  provides  that  one 
fourth  of  the  total  cost  shall  be  levied 
upon  all  the  property  fronting  upon  or  Ad- 
joining the  improvement  according  to  front- 
age and  three  fourths  according  to  area 
upon  all  the  property  in  the  district,  ascer- 
tained as  follows:  "A  line  shall  be  drawn 
midway  between  the  street  to  be  improved 
and  the  next  parallel  or  converging  street 
00  each  side  of  the  street  to  be  improved, 
which  line  shall  be  the  boundary  of  the  dis- 
trict, except  as  hereinafter  provided,  name- 
ly: If  the  property  adjoining  the  street  to 
69  li.  ed. 


be  improved  is  divided  into  lots,  the  dis- 
trict line  shall  be  so  drawn  as  to  include 
the  entire  depth  of  all  lota  fronting  on  the 
street  to  be  improved.  ...  If  there  it 
no  parallel  or  converging  street  on  either 
side  of  the  street  improved,  the  district 
lines  shall  be  drawn  300  feet  from  and 
parallel  to  the  street  to  be  improved;  but 
if  there  be  a  parallel  or  converging  street 
on  one  side  of  the  street  to  be  improved  to 
fix  and  locate  the  district  line,  then  the  dis- 
trict line  on  the  other  side  shall  be  drawn 
parallel  to  the  street  to  be  [58]  improved 
and  at  the  average  distance  of  the  opposite 
district  line  so  fixed  and  located."  The  de- 
fendants' land  has  a  frontage  on  the  west 
side  of  Broadway  of  1,083.88  feet  out  of  a 
total  in  the  district  constituted  said  to  be 
4,372  feet.  It  is  an  undivided  tract  extend- 
ing back  nearly  a  thousand  feet  to  Church 
road.  On  the  south  the  adjoining  property 
was  divided  into  lots  of  small  depth,  and  on 
the  opposite  side  of  Broadway  the  next 
parallel  street  was  about  300  feet  from 
Broadway.  The  ordinance  establishing  the 
taxing  district  treated  Church  road  as  the 
next  parallel  street  within  the  meaning  of 
the  charter,  and  included  the  defendants' 
tract  to  a  depth  of  between  400  and  600  feet, 
while  the  small  lots  next  to  it  were  included 
to  only  about  100  feet,  the  opposite  lots  to 
about  160  feet,  and  another  undivided  tract 
on  the  east  of  Broadway  was  included  by 
average  distance  to  a  depth  of  240  feet. 
The  ordinance  establishing  these  lines  was 
held  to  follow  the  charter  and  to  be  con- 
sistent with  the  14th  Amendment  by  the 
(Supreme  court  of  the  state.  269  Mo.  163, 
168  S.  W.  687. 

The  legislature  may  create  taxing  dis- 
tricts to  meet  the  expense  of  local  improve- 
ments, and  may  fix  the  basis  of  taxation 
without  encountering  the  14th  Amendment 
unless  its  action  is  palpably  arbitrary  or 
a  plain  abuse.  Houck  v.  Little  River  Drain- 
age Dist.  239  U.  S.  254,  262,  ante,  266,  273, 
36  Sup.  Ct  Rep.  68.  The  front-foot  rule  has 
been  sanctioned  for  the  cost  of  paving  a 
street.  In  such  a  case  it  is  not  likely  that 
the  cost  will  exceed  the  benefit,  and  the 
law  does  not  attempt  an  imaginary  exact- 
ness, or  go  beyond  the  reasonable  probabili- 
ties. French  v.  Barber  Asphalt  Paving  Co. 
181  U.  S.  324,  46  L.  ed.  879,  21  Sup.  Ct.  Rep. 
626;  Cass  Farm  Co.  v.  Detroit,  181  U.  S. 
396,  397,  46  L.  ed.  914,  916,  21  Sup.  Ct. 
Rep.  644.  So  in  the  case  of  a  square  bound- 
ed by  principal  streets,  the  land  might  be 
assessed  half  way  back  from  the  improve- 
ment to  the  next  street.  Louisville  k  N. 
R.  Co.  V.  Barber  Asphalt  Paving  Co.  197  U. 
8.  430,  49  L.  ed.  819,  25  Sup.  Ct.  Rep.  466. 
But,  as  is  implied  by  Houck  v.  Little  River 
Drainage  Dist.,  if  the  [69]  law  is  of  such  a 

616 


60,  00 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct. 


character  that  there  U  no  reasonable  pre- 
sumption that  substantial  justice  generally 
will  be  done,  but  the  probability  is  that  the 
parties  will  be  taxed  disproportionately  to 
each  other  and  to  the  benefit  conferred,  the 
law  cannot  stand  against  the  complaint  of 
one  so  taxed  in  fact.  Martin  ▼.  District  of 
Columbia,  205  U.  S.  135,  139,  51  L.  ed.  743, 
744,  27  Sup.  Ct.  Rep.  440. 

The  city  of  St.  Louis  is  shown  by  this 
case  and  by  others  in  the  Missouri  reports 
to  contain  tracts  not  yet  cut  into  city  lots, 
extending  back  from  streets  without  en- 
countering a  parallel  street  much  farther 
than  the  distance  within  which  paving  could 
be  supposed  to  be  a  benefit.  See,  for  in- 
stance, Gilsonite  Roofing  k  Paving  Co.  v 
St.  Louis  Fair  Aaao.  231  Mo.  589,  132  S.  W 
657;  Granite  Bituminous  Paving  Co.  v. 
Fleming,  251  Mo.  210,  158  S.  W.  4;  Loth 
▼.  St.  Louis,  257  Mo.  399,  165  S.  W.  1023; 
William  R.  Bush  Constr.  Co.  v.  Withnell, 
185  Mo.  App.  408,  170  S.  W.  361.  The 
ordinance,  following  the  charter  as  con- 
strued, established  a  line  determining  tho 
proportions  in  which  the  tax  was  to  be  borne 
that,  after  nmning  not  a  hundred  feet  from 
the  street,  leaped  to  near  500  feet  when  it 
encountered  such  a  tract,  end  on  the  op- 
posite side  of  the  street  was  150  and  240 
feet  away.  The  differences  were  not  based 
upon  any  consideration  of  difference  in  the 
benefits  conferred,  but  were  established  me- 
chanically in  obedience  to  the  criteria  that 
the  charter  directed  to  be  applied.  The 
defendants'  case  is  not  an  incidental  result 
of  a  rule  that,  as  a  whole  and  on  the  aver- 
age, may  be  expected  to  work  well,  but  of 
an  ordinance  that  is  a  farrago  of  irrational 
irregularities  throughout.  It  is  enough  to 
say  that  the  ordinance  following  the  orders 
of  the  charter  is  bad  upon  its  face  as  dis- 
tributing a  local  tax  in  grossly  unequal 
proportions,  not  because  of  special  consid- 
erations applicable  to  the  parcels  taxed, 
but  in  blind  obedience  to  a  rule  that  re- 
quires the  result.  And  it  cannot  be  said 
that  the  ordinance  as  a  whole  may  be  re- 
garded as  an  individual  [60]  exception  un- 
der a  rule  that  promises  justice  in  all  ordi- 
nary cases.  The  charter  provisions  as  ap- 
plied to  a  city  like  St.  Louis  must  be  taken 
to  contemplate  such  ordinances  imder  the 
construction  given  to  it  by  the  state  courts. 

Judgment  reversed. 

By  stipulation  of  counsel  the  same  judg- 
ment will  be  entered  in  case  No.  210  [Gast 

RBALTT  k  IirVESTMENT  COMPAIIT  V.  SOHNSI- 

DEB  Geanits  Company]. 


DAVID  LAMAR,  Plff.  in  Err., 

v. 
UNITED  STATES. 

(See  S.  C.  Reporter's  ed.  60-4M.) 

Federal  courts  — >  Jurlsdlotlon  — >  crimes* 

1.  A  Federal  district  court  which  haa 
jurisdiction  under  the  Judicial  Code,  f  24, 
of  all  crimes  cognizable  under  the  authority 
of  the  United  States,  acts  equally  within  its 
jurisdiction,  whether  it  decides  a  man  to  ba 
guilty  or  innocent  under  the  criminal  law, 
and  whether  its  decision  is  right  or  wrong. 
[For  other  cases,  see  Courts,  Y.  c,  5,  in  Digest 

Sup.  Ct.  1008.1 

Federal  courts  — >  Jurisdiction  «  crimes. 

2.  The  jurisdiction  of  a  Federal  district 
court  over  a  prosecution  under  the  Federal 
Criminal  Code,  §  32,  for  falsely  pretending, 
with  intent  to  defraud,  to  be  a  Federal  of- 
ficer, is  not  defeated  because  the  indict- 
ment may  not  charge  a  crime  against  the 
United  States,  since  such  obje&on  goes 
only  to  the  merits. 

[For    other    caseM,    see    Courts,    Y.    c,    6,    in 
Digest   Sup.   Ct.   1908.] 

Error  to  district  court  — >  Federal  ques* 
tlon. 

3.  The  Federal  Supreme  Court  cannot 
take  jurisdiction  of  a  writ  of  error  to  a 
district  court  on  the  theory  that  the  con- 
struction of  the  Federal  Constitution  was 
involved  in  the  decision  that  a  Congress- 
man is  an  officer  of  the  United  States  within 
the  meanine  of  the  Criminal  Code,  §  32, 
under  which  a  person  may  be  criminally 
punished  for  falsely  pretending,  with  in- 
tent to  defraud,  to  be  an  officer  of  the 
United  SUtes. 

[For    other    cases,    see    Appeal    and    Brror* 
038-989.  in  Digest  Sup.  Ct.  1908.] 

Indictment  —  sufficiency  —  false  per- 
sonation of  a  Federal  officer. 

4.  An  indictment  charging  tho  false 
personation,  with  intent  to  defraud,  of  an 
officer  of  the  United  States,  contrary  to  the 
Criminal  Code,  §  32,  is  not  so  insufficient 
as  to  infringe  the  accused's  constitutional 
rights  because  the  nature  of  the  fraud  in- 
tended was  not  set  forth. 

[For    other    cases,    see    Indictment,    II.,    In 
Digest  Sup.  Ct.  1908.] 

Courts  —  venne  of  crime  «  false  per- 
sonation. 

5.  The  constitutional  rights  of  a  per- 
son accused  of  falsely  pretending,  with  in- 
tent to  defraud,  contrarr  to  the  Criminal 
Code,  S  32,  to  be  an  officer  of  the  United 
States,  are  not  infringed  by  his  trial  In  the 
Federal  district  court  for  the  southern  dis* 
trict  of  New  York,  where  the  personation 
was  by  telephone  to  a  person  in  that  dis- 
trict 

[For  other  cases,  see  Courts,  Y.  c,  7,  b,  la 
Digest  Sup.  Ct.  1008.] 

[No.  434.] 

NOTB. — On  direct  review  in  Federal  Su- 
preme Court  of  judgments  of  district  or  cir- 
cuit courts— see  notes  to  Qwln  v.  United 
SUtes,  46  L.  ed.  U.  S.  741;  B.  Altman  4t 
Co.  V.  United  SUtes,  56  L.  ed,  U.  S.  894. 

240  U.  $• 


J015. 


LAMAR  Y.  UNITED  STATES. 


64 


Submitted  January  17,  1916.    Decided  Jan- 
uary 31,  1916. 

IK  ERROR  to  the  District  Court  of  the 
United  States  for  the  Southern  District 
of  New  York  to  review  a  eonyiotion  for 
false  personation  of  a  Federal  officer.    Dis- 
missed for  want  of  jurisdiction. 
The  facta  are  stated  in  the  opinion. 

Messrs.  Carl  E.  Whitney  and  A.  lico 
Everett  submitted  the  cause  for  plaintiff  in 
error: 

When  the  district  court  assumes  to  enter- 
tain a  controversy  not  among  those  enu- 
merated by  the  Constitution  or  statutes,  it  is 
without  jurisdiction,  and  the  Supreme  Court 
of  the  United  States  may,  and  always  does, 
review,  under  §  238  of  the  Judicial  Code, 
the  jurisdictional  question  thus  raised. 

Frederic  L.  Grant  Shoe  Co.  v.  W.  M.  Laird 
Co.  212  U.  S.  446,  53  L.  ed.  591,  29  Sup. 
Ct  Rep.  32;  Globe  Newspaper  Co.  v. 
Walker,  210  U.  S.  356,  52  L.  ed.  1096,  28 
Sup.  Ct.  Rep.  726;  The  Jefferson,  215  U.  S. 
130,  54  L.  ed.  125,  30  Sup.  Ct.  Rep.  54,  17 
Ann.  Cis.  907;  American  Surety  Co.  t. 
Shultz,  237  U.  S.  159,  59  L.  ed.  892,  85  Sup. 
Ct.  Rep.  525;  The  Fair  v.  Kohler  Die  & 
Specialty  Co.  228  U.  S.  22,  57  L.  ed.  716,  33 
Sup.  Ct.  Rep.  410;  Healy  ▼.  Sea  Gull 
Specialty  Co.  237  U.  S.  479,  59  L.  ed.  1056, 
35  Sup.  Ct.  Rep.  658;  United  States  use  of 
Alexander  Bryant  Co.  t.  New  York  Steam 
Fitting  Co.  235  U.  S.  327,  59  L.  ed.  253,  35 
Sup.  Ct.  Rep.  108. 

A  Congressman  is  not  an  officer  of  the 
United  SUtes. 

Whart.  St.  Tr.  200,  817,  note;  Story, 
Const.  1st  ed.  §  791;  Tucker,  Const.  §  199; 
Burton  t.  United  SUtes,  202  U.  S.  344,  50 
L.  ed.  1057,  26  Sup.  Ct.  Rep.  688,  6  Ann. 
Cas.  362;  United  SUtes  v.  Mouat,  124  U. 
S.  303,  31  L.  ed.  463,  8  Sup.  Ct.  Rep.  505; 
United  SUtes  t.  Smith,  124  U.  S.  525,  31 
L.  ed.  534,  8  Sup.  Ct.  Rep.  505. 

The  proceedings  below  are  faUlly  defec- 
tive, in  that  it  does  not  appear  in  what 
sUte  or  district  the  crime  was  committed. 

Hyde  v.  United  SUtes,  225  U.  S.  347,  56 
L.  ed.  1114,  82  Sup.  Ct.  Rep.  793,  Ann.  Cas. 
1914A,  614. 

The  failure  of  the  indictment  to  describe 
the  eircnmstancet  of  the  offense  was  a  de- 
nial of  defendant's  constitutional  rig^t  to 
be  informed  of  the  nature  and  cause  of  the 
•ecosatioB. 

United  SUtes  ▼.  Cruikshank,  92  U.  S. 
542,  28  L.  ed.  588;  United  SUtes  r.  Mills, 

7  Pet  142,  8  L.  ed.  637;  United  SUtes  v. 
Cbok,  17  WalL  174,  21  L.  ed.  539;  United 
SUtes  T.  Hess,  124  U.  S.  483,  31  L.  ed.  516, 

8  Sup.  Ot  Rep.  671. 

The  construction  of  the  Constitution  was 
•t  L.  ed. 


necessarily  involved  in  deciding  that  a  Con- 
gressman was  an  officer,  and  in  defining  hie 
duties. 

Pettit  T.  Wahihe,  194  U.  S.  205,  48  L.  ed. 
938,  24  Sup.  Ct.  Rep.  657;  Mackenzie  v. 
Hare,  239  U.  S.  299,  ante,  297,  36  Sup.  CL 
Rep.  106. 

Soliciter  General  Davis  submitted  the 
cause  for  defendant  in  error: 

The  court  below  had  jurisdiction  te  con- 
strue the  sUtute  in  question.  lU  error,  if 
any,  in  so  doing,  is  one  over  which  the  cir- 
cuit court  of  ypeals  has  exclusive  appellate 
jurisdiction. 

Fore  River  Shipbuilding  Co.  t.  Hagg,  219 
U.  S.  175,  179,  55  L.  ed.  163,  164,  31  Sup. 
Ct.  Rep.  185;  Smith  v.  McKay,  161  U.  S. 
355,  359,  40  L.  ed.  731,  732,  16  Sup.  Ct.  Rep. 
490;  R.  J.  Darnell  v.  Dlinois  C.  R.  Co.  225 
U.  S.  243,  245,  56  L.  ed.  1072,  1073,  32  Sup. 
Ct.  Rep.  760;  Dlinois  C.  R.  Co.  v.  Adams, 
180  U.  S.  28,  34,  45  L.  ed.  410,  412,  21  Sup. 
Ct.  Rep.  251. 

It  was  the  statute,  and  not  the  Consti- 
tution, which  the  court  below  was  called 
upon  te  construe.  No  constitutional  ques- 
tion, therefore,  is  involved. 

Empire  SUte-Idaho  Min.  &  Developing 
Co.  V.  Hanley,  205  U.  S.  225,  232,  51  L.  ed. 
779,  782,  27  Sup.  Ct.  Rep.  476. 

Members  of  Congress  hold  "office,"  and  a 
member  of  Congress  is  an  "officer." 

2  Bouvier's  Law  Diet.  1897  ed.  p.  540; 
Swafford  v.  Templeten,  185  U.  S.  487,  492, 
46  L.  ed.  1005,  1007,  22  Sup.  a.  Rep.  783; 
The  Floyd  Acceptances,  7  WalL  666,  676, 19 
L.  ed.  169,  173;  United  SUtes  v.  Maurice, 
2  Brock.  102,  Fed.  Cas.  No.  15,747. 

Decisions  of  sUte  courte  and  state  sUt- 
utes  recognize  members  of  the  sUte  legis- 
latures as  "sUte  officers."  The  analogy  is 
complete. 

Morril  v.  Haines,  2  N.  H.«  251 ;  Shelby  v. 
Alcorn,  36  Miss.  291,  72  Am.  Dec.  169;  SUte 
ex  reL  Holmes  v.  Dillon,  90  Mo.  233,  2  S.  W. 

417. 

A  member  of  Congress  is  a  Federal,  and 
not  a  sUte.  officer. 

Eversole  v.  Brown,  21  Ky.  L.  Rep.  027, 
53  S.  W.  527 ;  SUte  ex  reL  Spofford  v.  Gif • 
ford,  22  Idaho,  632,  126  Pao.  1060;  SUte  v. 
Russell,  10  Ohio  S.  &  a  P.  Dec  264. 

Mr.  Justice  Hoimes  delivered  the  opinion 
of  the  court: 

The  plaintiff  in  error  was  tried  and  con- 
victed upon  an  indictment  charging  him 
with  liaving  falsely  pretended  te  be  an  of- 
ficer of  the  government  of  the  United  SUtea, 
te  wit,  a  member  of  the  House  of  Represen- 
Utives,  that  is  te  say,  A.  Mitchell  Palmer, 
a  member  of  Congress,  with  intent  te  de- 
fraud J.  P.  Morgan  k  Company  and  the 

517 


64-66 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tkbm, 


United  States  Steel  Corporation.  The  case 
is  brought  here  directly  on  the  ground  that 
the  court  had  no  jurisdiction  becaiise  the 
indictment  does  not  charge  a  crime  against 
the  United  States,  and  that  the  interpreta- 
tion of  the  Constitution  was  involved  in  the 
decisi<m  that  a  Congressman  is  an  officer 
of  the  United  States.  There  are  subsidiary 
objections  stated  as  constitutional  that  the 
indictment  is  insufficient,  and  that  it  does 
not  appear  in  what  district  the  crime  was 
committed. 

On  the  matter  of  jurisdiction  it  is  said 
that  when  the  controversy  concerns  a  sub- 
ject  limited  by  Federal  law,  such  as  bank- 
ruptcy (Frederic  L.  Grant  Shoe  Co.  v.  W. 
M.  Laird  Co.  212  U.  S.  446,  53  L.  ed.  691, 
29   Sup.   Ct.   Rep.   332),   copyright    (Globe 
Newspaper  Co.  v.  Walker,  210  U.  S.  356,  62 
L.  ed.  1096,  28  Sup.  Ct.  Rep.  726),  patents 
(Healy  v.  Sea  Gull  Specialty  Co.  237  U.  S. 
470,  59  L.  ed.  1056,  35  Sup.  Ct.  Rep.  658), 
or  admiralty  (The  Jefferson,  215  U.  S.  130, 
54  L.  ed.  125,  30  Sup.  Ct.  Rep.  54,  17  Ann. 
Cas.  907),  the  jurisdiction  so  far  coalesces 
with  the  merits  that  a  case  not  within  the 
law  is  not  within  the  jurisdiction  of  the 
court   (The  Ira  M.  Hedges  [Lehigh  Valley 
R.  Co.  v.  Cornell  S.  B.  Co.]  218  U.  S.  264, 
270,  54  L.  ed.  1039,  1040,  31  Sup.  Ct.  Rep. 
17,  20  Ann.  Cas.  1235;  Haddock  v.  Haddock, 
201  U.  S.  662,  50  L.  ed.  867,  26  Sup.  Ct. 
Rep.  625,  5  Ann.  Cas.  1).     Jurisdiction  is 
a  matter  of  power,  and  covers  wrong  as  well 
as  right  decisions.    Fauntleroy  v.  Lum,  210 
U.  S.  230,  234,  235,  52  L.  ed.  1039,  1041,  28 
Sup.  Ct.  Rep.  641;    Burnet  v.   Desmomes 
y  Alvarez,  226  U.   S.   145,   147,  57  L.  ed. 
159,  160,  33  Sup.  Ct.  Rep.  63.  There  may  be 
instances  in  which  it  is  [65]  hard  to  say 
whether  a  law  goes  to  the  power  or  only  to 
the  duty  of  the  court;  but  the  argument  is 
pressed  too  far.    A  decision  that  a  patent  is 
bad,  either  on  ^he  facts  or  on  the  law,  is  as 
binding  as  one  that  it  is  good.    The  Fair  v. 
Kohler  Die  &  Specialty  Co.  228  U.  S.  22, 
25,  57  L.  ed.  716,  717,  33  Sup.  Ct.  Rep.  410. 
And  nothing  can  be  clearer  than  that  the 
district  court,  which  has  jurisdiction  of  all 
crimes  cognizable   under  the  authority  of 
the  United  States  (Judicial  Code  of  March 
3,  1911,  chap.  231,  §  24,  second  [36  Stat,  at 
L.   1091,   Comp.   Stet.   1913,   §  991    (2)]), 
acts  equally  within  its  jurisdiction  whether 
it  decides  a  man  to  be  guilty  or  innocent 
under  the  criminal   law,   and  whether   its 
decision  is  right  or  wrong.    The  objection 
that  the  indictment  does  not  charge  a  crime 
against  the  United  States  goes  only  to  the 
merits  of  the  case. 

As  to  the  construction  of  the  Constitu- 
tion being  involved,  it  obvioiuly  is  not. 
The  question  is  in  what  sense  the  word  "of- 
fler^  is  used  in  the  Criminal  Code  of  March 
528 


4,  1909,  chap.  321,  |  32  [35  SUt.  at  L. 
1095,  Comp.  Stat.  1913,  §  10,196].  The 
same  words  may  have  different  meanings  in 
different  parts,  of  the  same  act,  and  of  course 
words  may  be  used  in  a  statute  in  a  differ- 
ent sense  from  that  in  which  they  are  used 
in  the  Constitution.  American  Security  k 
T.  Co.  T.  District  of  Columbia,  224  U.  S. 
491,  494,  56  L.  ed.  856,  857,  32  Sup.  Ct. 
Rep.  553. 

There  were  fainter  suggestions  that  the 
defendant's  constitutional  rights  were  in- 
fringed because  the  nature  of  the  fraud  in- 
tended was  not  set  forth,  and  because  the 
state  and  district  wherein  the  crime  was 
committed  were  not  proved.  The  indictment 
is  not  for  defrauding,  but  for  personation 
with  intent  to  defraud;  the  nature  of  the 
fraud  intended  is  not  material  and  even 
might  not  yet  have  been  determined.  It  is 
not  an  indictment  for  a  conspiracy  to  com- 
mit an  offense  against  the  United  States, 
where  the  offense  intended  must  be  shown  to 
be  a  substantive  crime.  It  reasonably  may 
be  inferred  from  the  evidence  that  the  de- 
fendant was  tried  in  the  right  state  and  dis- 
trict in  fact.  If  so,  his  constitutional  rights 
were  preserved.  The  personation  was  by  tel- 
ephone to  a  person  [66]  in  New  York 
(southern  district),  and  it  might  be  found 
that  the  speaker  also  was  in  the  southern 
district;  but  if  not,  at  all  events  the  per- 
sonation took  effect  there.  Burton  v.  United 
SUtes,  202  U.  S.  344,  389,  50  L.  ed.  1067, 
1074,  26  Sup.  Ct.  Rep.  688,  6  Ann.  Cas.  362. 
These  objections  are  frivolous  and  the  oth- 
ers have  been  shown  to  be  unfounded.  It 
follows  that  the  writ  of  error  must  be  dis- 
missed. 

Writ  of  error  dismissed. 

Mr.  Justice  McReynolds  took  no  part  in 
the  consideration  or  decision  of  this  case. 


ILLINOIS  CENTRAL  RAILROAD  COM- 
PANY, Plff.  in  JDrr., 

V. 

FULTON  M.  SKAGGS. 
(See  S.  C.  Reporter's  ed.  66-74.) 

Evidence   —   sulHclency   «   employers* 
lUbility. 

1.  A  recovery  under  the  Federal  em- 
ployers' liability  act  of  April  22,  1908  (36 
Stat,  at  L.  65,  chap.  149,  Comp.  Stat.  101d» 
§   8657),   is  supported   by  evidence  upon 

Note. — On  the  constitutionality,  applica- 
tion, and  effect  of  the  Federal  employers' 
liability  act— see  notes  to  Lamphere  v.  Ore- 
gon R.  k  Nav.  Co.  47  L.RJl.(N.S.)  38,  and 
Seaboard  Air  Line  R.  Co.  ▼.  Horton,  L.RJL 
1915C,  47. 

S40  U.  S. 


IfU. 


ILUK0I8  C.  H.  00.  Y.  8KAGGS. 


irliieli  it  eoald  be  found  that  a  fellow  eery- 

aat  wma  Diligent,   and   that  tliereby   the 

injury  complained  of  resulted,  although  the 

injured  employee  may  himself  have  partici- 

jM&ed  in  the  act  which  caueed  the  injury. 

[For    other    cases,    see    Evidence,   XII.    d,    in 
Digest   Sup.  Ct.   1908.] 

Appeal  —  reversible  error  —  instruc- 
tions. 

2.  The  failure  of  the  trial  court  partic- 
ularly to  specify  in  its  charge  in  an  ac- 
tion under  the  j^ederal  employers'  liability 
act  of  April  22,  1908  (35  SUt.  at  L.  65, 
«hap.  149,  Comp.  Stat.  1913,  §  8657),  some 
matters  to  which  its  attention  was  not 
suitably  called,  is  not  ground  for  reversal. 
IFor  other  cases,  see  Appeal  and  Error, 
6127--B141.   in   Digest   Sap.   Ct.   1908.] 

Jippeftl  ^  reYerslble  error  —  instroc- 
ttons. 

8.  The  rule  that  a  party  is  not  entitled 

te  sit  silent  until   after  the  verdict,  and 

tlien  insist  that  it  shall  be  set  aside  because 

of  the   failure   on   the    part   of   the   trial 

court  particularly  to  specify  in  its  charge 

*om€  matter  to  which  its  attention  had  not 

l^een  suitably   called,   was   not   altered   by 

'tbe  provisions  of  Minn.  Gen.  Stat.  §  7830, 

binder  which  a  party  may   (without  taking 

"^Kccrptions   at   the    trial)    specify    upon    a 

motion   for   a  new  trial   alleged   errors   in 

^o     ruling    or    instructions    of    the    trial 

"Oourt. 

C£*or    other    cases,    see    Appeal    and    Error, 
^127-5141.   in  Digest  Sup.  Ct.   1908.] 

^l*l>cal  —  reversible  error  ^  instruc- 
^Aona. 

4.  Error  in  instructing  the  jury  in  an 

"Action    under   the    Federal   employers'    lia- 

^ilit^y  act  of  April  22,  1908  (35  Stat,  at  L. 

chap.  149,  Comp.  SUt.  1913,  §  8657), 

if    the    injured    employee    was    negli- 

"a  comparative  amount,  depending  up- 

^^    ^he  ratio  of  his  negligence  to  the  negu- 

?^^c«  of  defendant,"  should  be  considered 

?y   ^be  jury,  and  that  the  jury  should  "take 

*^''<>    consideration   his   negligence   in   com- 

*^*'*'i5!on  with  the  negligence  of  the  defend- 

^**^»"  does  not  call  for  the  reversal  of  a 

^y*^STnent  in  favor  of  plaintiff,  where  the 

^^^»"t   also   read   the   applicable   provisions 

^^    tlie  statute  to  the  jury  and  said:     "The 

?^^lgn  of  this  statute  seems  to  be  to  place 

-^^  responsibility  for  negligence  in  all  cases 

iJJ?^  where  it  belongs,  and  to  make  every- 

^^^^y  who  is  responsible  for  negligence  which 

^^oduces  injury  or  an  accident  responsible 

^^J  that  part  of  it  and  to  the  extent  to 

^^<iich  iliey  contributed  to  it,  and  so  the 

^^w  provides  that  contributory   negligence 

^^>C8  not  bar  a  recovery,  but  thst  the  dam- 

^^^es  to  which  one  is  entitled  are  to  be  re- 

^^ced  in  proportion  as  his  own  negligence 

^TMtributed  to  bring  about  the  injury.    That 

?|^%,  in  a  case  like  this,  if  it  should  be  found 

^^at  both  parties  were  to  blame,  that  both 

^ere  negligent,  both  the  defendant  and  the 

l^laintiff,   then   the   defendant   company   is 

^  be  responsible  to  the  extent  to  which  it 

"^as  to  blame  and  the  plaintiff  would  be 

Responsible  himself  to  the  extent  to  which 

He  was  tn  blame,"  and  no  request  was  made 

«A  It.  #WI 


for  a  correction  of  the  first-mentioned  parts 
of  the  charge. 

[For    other    cases,    see    Appeal    and    Error, 
6071-5126,   in   Diffest   Sup.   Ct.   1908.] 

[Xo.  194.] 

Argued  January  19  and  20,  1916.    Decided 
January  31,  1016. 

TN  ERROR  to  the  Supreme  Court  of  the 


State  of  Minnesota  to  review  a  judg- 
ment  which,  on  a  second  appeal,  affirmed 
a  judgment  of  the  District  Court  for  Ram- 
sey County,  in  that  state,  in  favor  of  plain- 
tiff in  an  action  under  the  Federal  em- 
ployers' liability  act.    Affirmed. 

See  same  case  below,  on  first  appeal,  124 
Minn.  503,  145  N.  W.  381;  on  second  ap- 
peal, 125  Minn.  532,  147  N.  W.  1135. 

The  facts  are  stated  in  the  opinion. 

Mr.  W.  S.  Horton  argued  the  cause,  and, 
with  Mr.  Blewett  Lee,  filed  a  brief  for  plain- 
tiff in  error: 

The  state  court  erroneously  applied  the 
Federal  employers'  liability  act  to  the 
facts. 

29  Cyc.  419,  420;  1  Thomp.  Neg.  p.  4; 
Ellis  V.  Louisville,  H.  &  St.  L.  R.  Co.  155 
Ky.  745,  160  S.  W.  512. 

The  state  court  erroneously  construed  the 
part  of  the  Federal  employers'  liability  act 
regulating  the  damages  as  applied  to  the 
facts  shown  in  this  record. 

Seaboard  Air  Line  R.  Co.  v.  Tilghman,  237 
U.  S.  499,  501,  69  L.  ed.  1069,  1070,  35  Sup. 
Ct.  Rep.  653;  Norfolk  &  W.  R.  Co.  v.  Earn- 
est, 229  U.  S.  114,  57  L.  ed.  1096,  33  Sup. 
Ct.  Rep.  654,  Ann.  Cas.  1914C,  172. 

Inasmuch  as  Skaggs  directly  participated 
in  uncoupling  the  engine  from  the  cars  and 
leaving  them  at  the  place,  the  company  was 
not  negligent  as  to  him,  because  it  did  not 
owe  him  the  duty  to  see  that  he  did  his 
work  properly,  or  to  furnish  another  em- 
ployee to  advise  whether  his  work  was 
properly  done;  even  though  another  em- 
ployee jointly  participated  with  Skaggs, 
yet,  as  between  him  and  the  company,  it 
was  none  the  less  his  act,  for  which  there 
can  be  no  liability. 

Ellis  V.  Louisville,  H.  &  St.  L.  R.  Co. 
supra;  Thomp.  Neg.  §  3879;  Perigo  v.  In- 
dianapolis Brewing  Co.  21  Ind.  App.  338,  52 
N.  E.  462;  McKay  v.  Hand,  168  Mass.  270, 
47  N.  E.  104,  2  Am.  Neg.  Rep.  714;  Calla- 
way V.  Allen,  12  C.  C.  A.  114,  24  U.  S.  App. 
388,  64  Fed.  297;  Davis  v.  Chicago  Edison 
Co.  195  111.  31,  62  N.  E.  829. 

It  is  essential  to  liability  that  there  shall 
exist  a  duty  on  the  part  of  the  company  to 
protect  plaintiff  from  the  particular  cause 
of  injury. 

29  Cyc.  419,  420;  1  Thomp.  Neg.  p.  4. 
84  V%%% 


S7,  W                       SUPREME  COiniT  OF  THE  UNITED  STATES.  Ooi.  TtMM, 

The  trUI  court  imtnicted  that  the  pkin-  114,  67  L.  ed.  1096,  33  Sup.  CL  Bep.  8M. 
tUT  below  wu  entitled  to  recoTer  if  BucfaU,  Aim.  Cu.  1914C,  172. 
the  other  brAkeman,  wu  negligenti    omit- 
ting in  ereiT  reipect  from  their  eoiiiider>-  Mr.  Juttice  Hncbea  delivered  the  opinltm 
tion  Sluggs'B  partidpatioii  in  the  act  and  gf  the  court: 

opportunity  to  luiow  the  condition.    Id  thus  This  it  a  writ  of  error  to  reriew  a  judg- 

liating  a  complete  right  to  recover,  it  waa  ment  recovered  under  the  Federal  employera* 

eaaential  that  all  the  conditions  shown  \>j  liabilitf  act.    There  la  no  quettion  but  that 

the  undisputed  testimony  be  Included.  the  defendant  in  error,  Fulton  M.   Bkagga, 

Pennoclc  v.  Dialogue,  2  Pet.  1,  IG,  7  L.  ed.  <raa  injured  while  be  waa  engaged  in  intar- 

38T,  332;   Clarke  v.  Courtnej,  G  Pet.  319,  lUU  commerce  in  the  couraa  of  hia  amploy- 

3fi4,  S  L.  ed.  140,  152;  Greenleaf  v.  Birth,  nent  by  the  plaintilT  in  error.     It  ia  cor. 

»  Pet.  £92,  299,  9  L.  ed.  132,  135.  tended  that  the  iUte  Murt  erred  in  iU  ap- 

Exceptiona    were    taken    and    errors    as-  plication  of  the  statute  to  the  facta,  both 

signed  in  the  state  court  in  accordance  with  with  reapeet  t«  the  conditions  of   liabUitj' 

the  method   prescribed  by   the  statutes   of  uid  the  meaeure  ol  damages, 

the  state  as  conetrued  by  the  courts.    It  is  Skaggi  had  been  employed  by  the  companjr 

not  required  that  for  such  an  error  an  ex.  for    about    four    yeari,    first    in    connection 

eeption  be  taken  at  the  time  the  instruc-  with  the  building  and  repair  of  bridges,  and 

tion  ie  given.     It  is  sufficient  to  raise  it  in  then,  for  about  two  years,  as  a  locomotive 

the  motion  for  new  trial.  fireman.     ^   '«w   days  before  the   accident 

Sasaen  v.  Haegle,  I2S  Minn.  441,  62  L.R.A.  he  l>^an  work  as  a  brakeman  on  a  freight 

(N.S.)   1176,  147  N.  W.  445.  train,  hia  Drat  run  being  from  Freeport  to 

Mr.  H«n.ph«,BMton  argued  the  cause,  Clinton,  Illinois,  on  J«,«r7  10    1913      It 

«.d,  with   Mr.  John  H.  Kay,  Sled  a  brief  *«  on  the  return  tr.p  to  Freeport,  on  Janu- 

lor  defendant  in  error:  "7    W.   3?".   t''"*^''*   *"    '"J""^-     ^ 

The    court    cannot    review    the    evidence  "*'  consisted  of  the  conductor,  the  eng^ 

merely  for  the  purpose  of  determining  on  neer  the  fireman,  the  rear  brakeman,  named 

whi/side  of  t^e  c^  the  greater  weight  ^^f^^^'J^^,     trf  .fm'r '  xtr.  '  « '::f 

''lS:;rt^R"hards,  161  V.  S.  658,  38  I.  "«•««"»  'r.^ '".T'^^'m   s^^t 

^    ins    ^A  a.,«    /v    »»_    jeo    it«.    Mi-  tion  of  rear  brakeman  because  Of  Ins  greater 

•d.  SOS,  14  Sup.  Ct.  Rep.  4S2,  17  Mor.  Mm.  _,            .      „.,i,^    *™t3iw    ■•>. 

n        Til.     n  -ii  ..        I     1—     J    tan  Tt    □  experience.     The  train  reached   Amboy,  aa 

Rep.  704;   Bartlett  v.  Lockwood,  160  U.  8.  .   f          .,    .       ...          ^     .  o     >  1.^1,  V    u 

MB    *n  r     ^    .nn    i«   b,.„    n*    d.      iii  intermediate  sUtion,  about  2  0  clock  A.  U. 

3S8,  40  L.   ea.  460,   16  oup.  Ut.   Kep.   334;     ,.  ^     1         u     ._ui      ti —^  a< 

Bgi:n  T.  Hart,  165  U.  S.  188.  41  L.  rf.  880  "  -"  *  d-rlj    co id  P'^''*^    ^here  were  M- 

17  Sup.  Ct.  Rep.  300;  Thayer  y.  Spratt,  180  'TV,'?,   'f  .    J      ^1  .Jn  «.  ™t  !« 

U.  S.  346,  354,  47  L    ed.  845,  MO,  23  Sup.  ^^   '  '  '' w*  i^^    ^            .    tL^^ 

a.  Rep.  5T6;  Minneapolis,  St.  P.  4  S.  SU.  mediately  behind  these  f""  "T' =  *^" ^^ 

M.  R.  Co.  ».  Popplar.  237  U.  S.  369,  59  L.  '"^,"%'"''\t  '*    "!  l^k    to'^a^Sl 

ed.    1000,  35   Sup    d.  Rep.   809;    Seaboard  ^'^^T       "',  I              ti„„  with  a  naLiw 

Air  Line  R.  Co.  V.  Padgett,  236  U.  B.  668,  b"^?""-!  "«'^1>  """"''2?/.''^  L«^.^ 

To  be  effective,  the  proper  tune  to  have  /^      .^i,^          .         „itb    j^^   remaining 

had  the  court  consider  the  question  o(  re-  ^^  returned  to  the  main  track  and 

duction    of   damage,    was    when    the   court  ^       ^^^^   ^^   ^j,,   ji^^ti„„   „f  the  car* 

was  charging  the  jury;  and  either  by  a  re-  ^,_,^j^  ,^,j  ^^  j^f^  ,t^„ji       „„  t^at  trmck. 

quest  to  charge  or  by  an  exception  te  the  ^^^^^  ^,^^J.i„^  ,  ^^^  disUnce,  the  engine 

charge  aa  given.  ^.^^  stopped,  was  uncoupled,  and  was  moved 

Waligor.   V.   St.    Paul    Foundry   Co.    107  f^^^^^^  ,|o„e  across  the  switch  leading  to- 

Minn.  550,  119  N.  W.  395;  SUte  v.  Zempel,  ^            ^       ^^^^    the  purpose  being  to  re- 

103   Minn.   429,  116  N.  W.  275;    Smith   v.  ^.^'^i^  the  paseiog  track  and  from  thence  t«^ 

Great  Northern  R.  Co.  —  Minn.  — ,  153  N.  ^^^^^^  to  a  further  track  to  the  west.  In 

W.  618.  „jjjj  to  pick  up  certein  other  cars  which 

No   instructions   of   any   kind   were   re-  ^^^^  ^^  ^^      j  in^^  the  train.  There  had  not 

quested    by    defendant,    and    no    exceptions  j^^^^  ^^^^^  however,  a  safe  clearance  for  the 

were  taken  at  the  time  of  the   trial,  and  engin^^  ,nd,  wlien  the  engine  backed  to  the 

the  trial  court's  attention  was  not,  in  any  p^gtng  track,   Skaggs,  who  was  ridbg  on 

manner,  at  the  time  of  the  trial,  called  to  the  right  side  at  the  rear  of  the  tender,  waa 

the    matters    now    complained    of.      Under  hit  by  the  end  of  the  foremost  car  left  on 

thcaa  drcumstauces   the  plaintiff  In  error  the  main  track,  waa  knocked  to  the  ground, 

should   not   now    be   heard  to   complain   of  and  was  run  over,  this  being  the  Injury  of 

the  court's   charge.  which  he  complains. 

Norfolk  *  W.  R.  Oo.  t.  Eamart,  «9  U.  S  WhUe  tiiere  la  little  or  no  dilute  aa  t* 


mil. 


ILUNOIS  C.  R.  CX).  y.  SKAGG8. 


08-71 


thcM  facts,  there  it  a  conflict  of  testimony 
as  to  the  relation  of  Buchta,  the  other  bralce- 
man,  to  the  occurrence.     Omitting  various 
details  ol   the   movements   which,   for  the 
present   purpose,   need   not   be   considered, 
and  taking  the  testimony  of  Skaggs,  which 
the  jury  waa  at  liberty  to  believe,  these 
faets  appear:     When,  after  leaving  the  two 
cars  on  the  passing  track,  the  engine,  with 
the  remaining  string  of  cars,  returned  to  the 
main  track  and  backed  down,  Skaggs  gave 
the  signal  to  stop,  repeating  a  signal  which 
was  received,  as  he  [69]  supposed,  from  the 
«ODdiictor.    At  that  time  Buchta  was  some- 
where in  the  yard   (he  had  been  lining  up 
flwitehes  for  the  intended  movements),  but 
Sksggs  did  not  see  him  when  the  cars  were 
stopped.    Skaggs  then  went  to  the  depot  to 
siacertain  the  meaning  of  the  signal,  and 
told  by  the  conductor  that  it  was  neces- 
ry  to  pick  up  certain  other  cars.    Return- 
g  to  the  engine,  he  attempted  to  uncouple 
:St  from  the  right-hand  side,  but  found  this 
■  lifllcult,  and  Buchta,  who  was  then  on  the 
^cspposite  side,  effected  the  uncoupling  and 
id,  "Go  ahead."     On  Skaggs's  signal,  the 
igine  started  forward;  but  Skaggs  did  not 
ow  whether  the  cars  were  left  so  as  to 
ive  sufficient  clearance  for  an  engine  going 
to  the  passing  track,  and  asked  Buchta  as 
this.     He  did  not  receive  a  satisfactory 
swer;  he  stopped  the  engine,  got  off,  and 
in  asked  Buchta,  who  replied:     "They 
clear  a  mile,  go  ahead,  and  if  we  don't 
out  of  bcre  the  sixtcen-hour   law   will 
tch    us    before    we    get    into    Freeport." 
kaggs  at  that  time  was  on  the  track  at 
e  rear  of  the  tender  and  not  more  than 
ear's  length  from  the  standing  car.     He 
^en  got   on   the  engine,   rode   up   to   the 
"Witch,  through  the  switch,  gave  the  back-up 
~3gnal,  stepped  on  the  comer  of  the  tender 
d  waa  looking  back  for  any  signal  that 
ight  be  given  by  the  other  brakeman  when 
e  was  caught  between  the  rear  right-hand 
^de  of  the  tender  and  the  end  of  the  stand- 
g  car,  as  already  stated. 
It  is  contended  that  the  state  court  erred 
permitting  a  recovery  under  the  Federal 
'Astute  for  the  reason  that  the  injury  re- 
^^Ited  from  Skaggs's  own  act,  or  from  an 
<t  in  which  he  participated.    The  company, 
k  is  said,  "cannot  be  negligent  to  an  em- 
^oyee  whose  failure  of  duty  and  neglect  pro- 
need  the  dangerous  condition."     It  may 
taken  for  granted  that  the  statute  does 
ot  contemplate  a  recovery  by  an  employee 
^vr  the  consequences  of  action  exclusively 
^is  own;  that  is,  where  his  injury  does  not 
^"esult  in  whole  or  in  part  from  the  negli- 
gence of  any  of  the  officers,  agents,  or  em- 
ployees of  the  employing  carrier,  or  [70 J 
^y  reason  of  any  defect  or  insufficiency,  due 
to  its  negligence,  in  its  property  or  equip- 
%0  li.  ed. 


ment.    35  Stat,  at  L.  65,  chap.  149,  Comp. 
Stat.  1913,  §  8657.    But,  on  the  other  hand, 
it  cannot  be  said  that  there  can  be  no  recov- 
ery  simply   because   the   injured  employee 
participated  in  the  act  which  caused  the  in- 
jury. The  inquiry  must  be  whether  there  is 
neglect  on  the  part  of  the  employing  carrier, 
and,  if  the  injury  to  one  employee  resulted 
**in  whole  or  in  part"  from  the  negligence  of 
any  of  its  other  employees,  it  is  liable  under 
the  express  terms  of  the  act.    That  is,  the 
statute  abolished  the  fellow-servant  rule.    If 
the  injury  was  due  to  the  neglect  of  a  co- 
employee  in  the  performance  of  his  duty, 
that  neglect  must  be  attributed  to  the  em- 
ployer;   and  if  the  injured  employee  was 
himself  guilty  of  negligence  contributing  to 
the  injury,  the  statute  expressly  provides 
that  it  "shall  not  bar  a  recovery,  but  the 
damages  shall  be  diminished  by  the  jury  in 
proportion  to  the  amount  of  negligence  at*> 
tributable  to  such  employee."     See  Second 
Employers'  Liability  Cases  (Mondou  v.  New 
York,  N.  H.  k  H.  R.  Co.)  223  U.  8.  1,  49, 
50,  56  L.  ed.  327,  345,  346,  38  L.R.A.(NJ3.) 
44,  32  Sup.  Ct.  Rep.  169,  1  N.  C.  C.  A.  876; 
Seaboard  Air  Line  R.  Co.  v.  Tilghman,  2S7 
U.  S.  499,  501,  59  L.  ed.  1069,  1070,  35  Sup. 
Ct.  Rep.  653.     We  think  that  the  argument 
for  the  plaintiff  in  error  overlooks  the  infer- 
ences of  fact  which  the  jury  was  entitled  to 
draw.    Thus,  the  jury  could  properly  regard 
the  two  brakemen  as  assisting  each  other  in 
the  movement  in  question.    Such  assistanoe 
was  certainly  appropriate,  if  not  absolutely- 
necessary.    The  very  purpose  of  having  two- 
brakemen  was  not  to  put  upon  either  the 
entire  responsibility.    Working  together  un- 
der the  exigencies  of  such  operations,  par- 
ticularly when  conducted  in  the  nighttime^ 
it  was  manifestly  contemplated  that  the  one* 
brakeman  would  supplement  the  other,  and 
not  be  compelled,  at  the  peril  of  his  rights^ 
personally  to  examine  what  the  other  did, 
or  the  basis  of  the  reports  the  other  gave. 
Each  had  a  reasonable  latitude  in  relying 
upon  the  statements  of  the  other,  made  in 
the  course  of  the  operation  and  as  a  part  of 
it.  The  supreme  court  of  the  state  said:  "It 
was  [71]  a  very  dark  night,  and  evidently 
there  was  necessity  for  haste.    If  plaintiff's 
story  is  true,  Buchta  was  in  a  position  to 
know  about  clearance,  while  plaintiff  was 
not;  and  we  are  unable  to  say  plaintiff  had 
not  the  right  to  rely  upon  his  statement 
in  regard  thereto."    [124  Minn.  506,  145  N. 
W.  381.]     In  this  we  find  no  error.     When 
the  engine  was  uncoupled,  Sk|igg8  was  on 
the  right-hand  side,  while  Buchta  was  on 
the   other   side, — the   side   of   the   passing 
track, — ^a  better  place  to  judge  the  clear- 
ance.   The  fact  that  Skaggs  asked  his  ques- 
tions   is    itself    not    without    significance. 
These  questions  indicated  doubt  on  Skaggs's 


^ 


71-73 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cot.  Tebic, 


part,  while  Buchta's  reply  showed  certain- 
ty on  his.  It  was  plainly  permissible  to  in- 
fer from  the  testimony  that  the  two  men 
were  not  in  positions  of  equal  advantage, 
and  Skaggs  was  entitled  to  the  exercise  of 
reasonable  care  on  the  part  of  Buchta  in 
observing  and  reporting  the  position  of  the 
cars.  As  there  was  evidence  upon  which  it 
could  be  found  that  Buchta  was  negligent, 
and  that  thereby  injury  resulted  to  Skaggs, 
it  cannot  be  said  that  the  recovery  in  this 
aspect  of  the  case  was  contrary  to  the  stat- 
ute. 

But  it  is  urged  that  the  trial  court  erred 
in  its  instructions  to  the  jury.    After  stat- 
ing that  if  any  employee  "was,  at  the  time 
of  this  accident,  n^ligent  in  the  perform- 
ance of  his  duty,  which  negligence  was  the 
direct  cause  of  the  injury  sustained  by  the 
plaintiff,  then  the  defendant    .    .    .    would 
be  liable  for  that  negligence,"  and  after  re- 
ferring to  the  "direct  conflict  of  testimony" 
with  respect  to  what  was  said  and  done  by 
Buchta,  the  trial  court  charged  as  follows: 
*'Did  the  employee  Buchta  fail  to  exercise 
that  ordinary  and  reasonable  care  which  a 
prudent  person  would  have  exercised  under 
the   circumstances   existing   at   that  time? 
If  he  did  fail  to  exercise  such  ordinary  and 
reasonable  care,  then  he  would  be  guilty  of 
negligence,  and  that  negligence  in  this  case 
would  be  the  negligence  of  the  defendant 
railway  company.    You  must  determine  this 
question  of  fact  from  all  of  [72]  the  testi- 
mony in  the  case."    It  was  added,  in  sub- 
stance, that  if  Buchta  did  not  fail  to  exer- 
cise reasonable  care,  the  plaintiff  was  not 
entitled  to  recover.    It  is  contended  that  the 
trial  court  erred  in  failing  to  qualify  the  in- 
struction quoted,  and  other  statements  to 
the  same  eflfect,  by  reference  to  what  Skaggs 
himself  did,  knew,  or  was  in  a  position  to 
know.    But  in  view  of  the  state  of  the  tes- 
timony, and  the  point  to  which  the  court's 
instruction  was  addressed,  we  cannot  say 
that  it  was  in  itself  erroneous.    If  the  plain- 
tiff in  error  desired  any  addition,  amplifica- 
tion, or  qualification  in  order  to  present  its 
point  of  view  to  the  jury,  it  should  have 
made    appropriate    request    therefor.      The 
record  does  not  show  that  the  plaintiff  in 
error  either  objected  at  the  time  to  any 
statement  made  by  the  court  to  the  jury, 
or  that  it  made  any  request  whatever  for 
instructions.     While  under  the  local  stat- 
ute (Qen.  Stat.  [Minn.]  §  7830)  the  plain- 
tiff in  error  was  permitted  (without  taking 
exceptions  at  the  trial)   to  specify  upon  a 
motion   for  a  new  trial  alleged  errors   in 
the  rulings  or  instructions  of  the  trial  court, 
we  do  not  find  that  this  statute  alters  the 
salutary  rule  that  a  party  is  not  entitled  to 
sit  silent  until  after  the  verdict  and  then 
insist  that  it  shall  be  set  aside  because  of 
582 


a  failure  on  the  part  of  the  trial  court  par- 
ticularly to  specify  in  its  charge  some  mat- 
ter to  which  its  attention  had  not  been 
suitably  called.  State  v.  Zempel,  103  Minn. 
428,  429,  116  N.  W.  276;  Waligora  ▼.  St. 
Paul  Foundry  Co.  107  Minn.  564,  669,  119 
N.  W.  395;  Sassen  v.  Haegle,  126  Minn. 
441,  52  L.R.A.(N.S.)  1176,  147  N.  W.  446; 
State  y.  Sailor,  130  Minn.  84,  163  N.  W. 
271;  Smith  v.  Great  Northern  R.  Co.  — 
Minn.  — ,  153  N.  W.  613.  This,  also,  is  a 
sufficient  answer  to  the  complaint  of  the 
failure  of  the  trial  court  to  charge  the  jury 
with  respect  to  assumption  of  risk.  There 
was  no  request  for  any  instruction  upon  this 
point.  So  far  as  these  criticisms  are  con- 
cerned, we  are  unable  to  say  that  any  as- 
serted Federal  right  was  denied  by  the  state 
court. 

[73]  The  remaining  question  is  with  re- 
spect to  the  instructions  of  the  trial  court 
on  the  subject  of  contributory  negligence. 
In  the  course  of  these  the  court  fell  into  the 
error  of  saying  that,  if  Skaggs  was  negli- 
gent,   "a    comparative    amount,    depending 
upon  the  ratio  of  his  n^ligence  to  the  negli- 
gence of  the  defendant,  would  be  considered 
by  you  (the  jury) ;  and,  again,  that  the  jury 
should  "take  into  consideration  hit  negli- 
gence in  comparison  with  the  negligence  of 
the  defendant."    But  the  court  read  the  ap- 
plicable provision  of  the  statute  to  the  jury 
and  also  said:     "The  design  of  this  statute 
seems  to  be  to  place  the  responsibility  for 
negligence  in  all  cases  just  where   it  be- 
longs, and  to  make  everybody  who  is  re- 
sponsible for  negligence  which  produces  in- 
jury or  an  accident  responsible  for  that  part 
of  it  and  to  the  extent  to  which  they  con- 
tributed  to   it,   and   so   the    law   provides 
that  contributory  negligence  does  not  bar 
a    recovery,    but    that    the    damages    to 
which   one   is  entitled  are  to   be   reduced 
in   proportion  as  his  own  negligence  con- 
tributed to  bring  about  the  injury.     That 
is,  in  a  case  like  this,  if  it  should  be  found 
that  both  parties  were  to  blame,  that  both 
were  negligent,  both  the  defendant  and  the 
plaintiff,  then  the  defendant  company  it  to 
be  responsible  to  the  extent  to  which  it  was 
to  blame,  and  the  plaintiff  would  be  respon- 
sible himself  to  the  extent  to  which  he  was 
to  blame."    And  no  request  wu  made  for  a 
correction  of  the  first-mentioned  parts  of  the 
charge.    It  was  recognized  by  the  supreme 
court  of  the  state  that  those  parts  failed  to 
conform  to  the  correct  interpretation  of  the 
statutory  rule  as  defined  in  Norfolk  &  W. 
R.  Co.  V.  Earnest,  229  U.  S.  114,  122,  57 
L.  ed.  1096,  1101,  S3  Sup.  Ct.  Rep.  664,  Ann. 
Gas.  1914C,  172,  and  the  court  quoted  what 
we  there  said,  aa  follows:    "But  for  the  use 
in   the   second   instance  of  the  additional 
words  'as  compared  with  the  negligence  of 

240  V.  8. 


19i; 


CROCKER  T.  UNITED  STATES. 


78,74 


the  defendant'  there  would  be  no  room  lor 
eritieiem.  Those  words  were  not  happily 
chosen,  for  to  have  reflected  what  the  stat- 
ute contemplates  they  should  have  read  'as 
compared  [74]  with  the  combined  negli- 
gence of  himself  and  the  defendant/  We  Ba> 
this  because  the  statutory  direction  that  the 
diminution  shall  be  'in  proportion  to  the 
amount  of  negligence  attribut«ble  to  such 
employee'  means,  and  can  only  mean,  that, 
where  the  causal  negligence  is  partly  at- 
tributable to  him  and  partly  to  the  car- 
rier, he  shall  not  recover  full  damages,  but 
only  a  proportional  amount  bearing  the 
same  relation  to  the  full  amount  as  the 
negligence  attributable  to  the  carrier  bears 
to  the  entire  negligence  attributable  to  both. 
.  .  .  Not  improbably  the  mistake  in  the 
instruction  was  purely  verbal  and  would 
have  been  promptly  corrected  had  attention 
been  specially  called  to  it,  and  possibly  it 
was  not  prejudicial  to  the  defendant." 

The  state  court  concluded  that  "upon  the 
whole  instruction  no  prejudice  to  defendant 
resulted."    And  in  this  Tiew  we  concur. 

Judgment  affirmed. 


FRANK  CROCKER,  Trustee  in  Bankruptcy, 

etc,  Appt., 

T. 

UNITED  STATES. 

(See  S.  C.  Reporter's  ed.  74-82.) 

Appeal  —  from  court  of  claims  —  find- 
Inga  of  fact. 

1.  Findings  of  the  court  of  claims  In  an 
action  at  law  determine  all  matters  of  fact 


precisely  as  the  verdict  of  a  jury,  and  the 
Federal  Supreme  Court  is  not  at  liberty  to 
refer  to  the  opinion  of  the  court  of  claims 
for  the  purpose  of  eking  out,  controlling, 
or  modifying  the  scope  of  the  findings. 
[For  other  caies,  eee  Appeal  find  Error. 
4892-4902,  in  Digest  Sop.  Ct.  1008.] 

Contracts  «  public  policy  «  affectini^ 
olllclal  action. 

2.  The  employment  of  a  person  by  a  cor- 
poration upon  a  compensation  contingent 
upon  success  to  secure  a  contract  from  the 
Postmaster  General  for  furnishing  letter  car- 
riers'  satchels  is  invalid  as  against  public 
policy. 

[For  other  eases,  aee  Contracts,  IV.  d,  8,  In 
Digest  Sup.  Ct.  1908.] 

Contracts  «  public  policy  —  affectini^ 
olllclal  action. 

3.  Public  policy  forbids  any  secret  ar- 
rangement between  the  agents  of  a  corpora- 
tion and  the  superintendent  of  the  free 
delivery  mail  service,  who  is  charged  with 
important  duties  relating  to  the  purchase  of 
letter  carriers'  satchels  for  such  service, 
whereby,  in  case  the  corporation  shall 
secure  the  contract  for  furnishing  such 
satchels,  the  superintendent  is  to  receive  a 
share  of  the  profits. 

[For   other   cases,    aee   Contracts,   IV.   d,    8, 
in  Digest  Sup.  Ct  1908.] 

United  States  —  contract  —  rescission 

for  fraud. 

4.  The  Postmaster  General  was  justi- 
fied in  rescinding,  because  tainted  with 
fraud,  a  contract  with  a  corporation  for 
furnishing  letter  carriers'  satchels  for  the 
free  delivery  service  upon  his  discovery  of 
the  existence  of  a  secret  arrangement 
whereby  the  superintendent  of  such  service, 
in  case  the  corporation  secured  the  con- 
tract, wsa  to  receive  a  share  of  the  profits, 
although  the  corporation  may  have  been 
without  actual  knowledge  of   the   corrupt 


Note. — ^Validity  of  agreement  by  which 
compensation  is  contingent  upon  success  in 
procuring  contract  with,  or  allowanoe  of 
claim  against,  the  United  States. 

Very  like  Ciockkb  t.  UifnvD  States  is 
the  case  of  Providence  Tool  Co.  v.  Norris,  2 
Wall.  45,  17  L.  ed.  868,  where  it  wis  held 
that  an  agreement,  for  compensation  contin- 
gent upon  success,  to  procure  contracts  from 
the  government  to  furnish  it  with  supplies, 
was  against  public  policy  and  void.  The 
court  said:  ^All  agreements  for  pecuniary 
considerations  to  control  the  business  opera- 
tions of  ^e  government,  or  the  r^ular  ad- 
ministration of  justice,  or  the  appointments 
to  public  offices,  or  the  ordinary  course  of 
legislation,  are  void  as  against  public  pol- 
icy, without  reference  to  the  question  wheth- 
er improper  means  are  contemplated  or  used 
in  their  execution.  The  law  looks  to  the 
general  tendency  of  such  agreements;  and 
it  doses  the  door  to  temptation,  by  refus- 
ing them  recognition  in  any  of  the  courts 
of  the  country." 

So,  in  Hovey  t.  Storer,  68  Me.  486,  where 
the  owners  of  a  vessel  authorised  their  agent 
to  dmrter  her  to  the  government  for  $100 
66  U  ed. 


per  day,  and  relinquish  all  over  that  amount 
to  the  agent,  it  was  heid  that  a  contract 
made  by  the  agent  with  the  government, 
through  the  intervention  of  another,  by 
which  the  government  was  to  pay  $150  per 
day,  was  invalid  as  against  public  policy; 
but  the  court  refused  to  disturb  it  in  so  far 
as  it  had  been  executed. 

The  New  York  courts  view  these  oontraeta 
with  less  disfavor. 

Thus,  an  agreement  to  procure  orders  from 
the  United  States  government  for  supplies 
to  be  furnished  for  use  upon  vessels  in  the 
public  service,  in  consideration  of  one  half 
the  net  profits,  is  valid  where  it  does  not 
contemplate  resort  to  any  but  legitimate 
methoda  in  procuring  the  orders.  Swift 
V.  Aspell,  40  Misc.  453,  82  N.  Y.  Supp. 
669. 

And  an  agreement  to  pay  a  commission 
of  5  per  cent  on  the  amount  of  the  charter 
for  obtaining  a  charter  from  the  United 
States  for  a  steamship  does  not  contravene 
public  policy.  Howland  ▼.  CoiBn,  47  Barb. 
653. 

Nor  does  a  contract  by  which  one  under- 
takes to  pay  a  commission  for  chartering 

5Sft 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oor.  Tbuc* 


arrangement,  where  it  waa  made  by  the  cor- 
poration's agents  while  endeavorinff  to  se- 
cure the  contract  for  the  corporation,  and 
was  a  means  to  that  end,  and  the  fruits  of 
their  efforts  were  accepted  by  the  corpora^ 
tion. 

[For  other  cases,  see  United  States,  VI.,  in 
Dtffeat   Sup.   Ct.  1008.] 

United  Slates  «  contracts  —  quantum 
▼alebat. 

6.  The  fact  that  no  recovery  can  be 
had  upon  a  contract  with  the  Postmaster 
Oeneral  for  furnishing  letter  carriers'  satch- 
els, where  such  contract  was  tainted  with 
fraud  and  has  been  rescinded  by  him  upon 
that  ground,  is  not  an  obstacle  to  a  re- 
covery upon  a  quantum  valebat. 
[For  other  cases,  see  United  States,  VI.,  in 
Digest  Sup.  Ct  1908.] 

Evidence  «  contract  price  as  admission 
of  value. 

6.  The  contract  price  for  letter  car- 
riers' satchels  to  be  furnished  under  a  con- 
tract with  the  Postmaster  General  cannot 
be  treated  as  an  admission  by  the  govern- 
ment of  the  value  of  the  satchels,  for  the 
purpose  of  sustaining  a  recovery  upon  a 
quantum  valebat,  where  the  contract  had 
been  rescinded  because  of  a  secret  arrange- 
ment witli  a  government  official  whereby  he 
was  to  share  in  the  contractor's  profits. 
[l<'or  other  cases,  see  Bvidence,  XI.  f,  lu 
Digest  Sup.  Ct.   Rep.  1908.] 

[No.   77.] 

Argued  December  1  and  2,  1915.     Decided 
January  31,  1916. 


APPEAL  from  the  Court  of  CUdint  to  re- 
view a  judgment  rejecting  all  but  a 
small  part  of  a  olaim  for  furnishing  letter 
carriers'  satchels  under  contract  with  the 
Postmaster  General.    Affirmed. 
See  same  case  below,  49  Ct.  CI.  85. 
The  facts  are  stated  in  the  opinion. 

Mr.  James  H.  Hayden  argued  the  cause, 
and,  with  Mr.  Robert  C.  Hayden,  filed  a 
brief  for  appellant: 

The  fraudulent  practices  mentioned  by 
the  court  of  claims  did  not  affect  the  rights 
or  obligations  that  the  parties  acquired  or 
assumed  by  the  contract  in  suit. 

If  the  fiction  about  the  omission  of 
straps,  mentioned  by  the  court  of  claims, 
had  been  the  fact,  and  if  it  had  been  true 
that  the  company  delivered  only  the  body 
portions  of  satchels  of  classes  A  and  C,  the 
rates  named  in  the  contract  would  have 
furnished  evidence  by  means  of  which  the 
value  of  the  incomplete  satchels  should 
have  been  ascertained. 

Salomon  v.  United  States,  19  WalL  17, 
19,  22  L.  ed.  46,  47. 

Assistant  Attorney  General  Thompson 
argued  the  cause  and  filed  a  brief  for  ap« 
pellee: 

This  was  one  indivisible  transaction  per- 
meated with  fraud,  of  which  appellant  com- 
pany was  chargeable  with  constructive 
knowledge. 


his  vessel  to  the  government,  to  persons  who 
are  related  to  the  government's  agents  in 
charge  of  selecting  vessels  for  charter,  where 
the  agents  so  employed  did  not  agree  to  use 
any  corrupt  means  to  procure  the  charter. 
Southard  v.  Bovd,  51  N.  Y.  177. 

And  in  Lyon  v.  Mitchell,  36  N.  Y.  235. 
93  Am.  Dec.  502,  a  contract  by  which  a 
broker  undertook  to  dispose  of  certain 
steamers  to  the  government  for  a  commis- 
sion of  10  per  cent  of  the  total  amount  re- 
ceived for  them  was  held  valid,  and  a  re- 
covery was  allowed  thereon. 

In  Cummins  v.  Barkalow,  1  Abb.  App. 
Dec  479,  a  contract  by  a  dealer  in  arms 
to  pay  an  agent  a  share  of  the  profits  for 
obtaining  from  the  government  an  order  for 
the  purchase  of  arms  was  held  valid,  there 
being  nothing  to  show  that  it  called  for  any 
illegal  or  improper  action  on  the  part  of 
the  agent. 

In  Winpenny  v.  French,  18  Ohio  St  470, 
it  was  held  that  a  contract  with  a  broker 
employed  to  negotiate  contracts  with  the 
government  for  the  sale  of  baskets  to  the 
Army  for  a  certain  commission  was  not 
illegal,  the  court  elaborately  distinguishing 
Providence  Tool  Co.  v.  Norris,  supra. 

Contracts  to  procure  the  allowance  of  a 
claim  against  the  United  States  have  also 
been  condemned  where  compensation  is  made 
contingent  upon  success. 

Thus,  in  Jones  v.  Blacklidge,  9  Kan.  562, 
12  Am.  Rep.  506,  which  was  a  case  of  the 
5S4 


collection  of  a  claim  against  the  govern- 
ment, the  court  says  that  all  contracts  for 
the  collection  of  claims,  whether  they  are 
to  be  performed  before  the  courts,  before 
Congress  or  the  legislature,  or  before  any 
of  the  executive  departments,  for  a  compen- 
sation contingent  upon  success,  are  clearly 
against  public  policy;  for  compensation  in 
such  cases,  being  contingent,  is  often  very 
large  in  amount,  and  holds  out  great  in- 
ducements and  temptations  to  the  use  of 
undue  and  even  corrupt  means  for  its  col- 
lection. 

A  contract  to  give  a  percentage  of  a  claim 
against  the  government  for  services  in  col- 
lecting it  is  void  as  against  public  policv, 
where  the  services  in  fact  consisted  largely 
in  procuring  legislation  from  Congress  by 
which  the  Postoffice  Department  should  be 
required  to  pay  the  claim.  Spalding  v. 
Ewing,  149  Pa.  375,  15  L.RJL  727,  34  Am. 
St  Rep.  608,  24  Atl.  219,  affirming  9  Pa. 
Co.  Ct.  471. 

An  agreement  by  an  attorney  to  obtain 
the  allowance  of  a  claim  against  the  govern- 
ment, the  services  contemplated  to  be  rem* 
dered  consisting  mainly  in  the  procurement 
of  legislation  by  Congress,  and  in  personal 
solicitation  of  members  for  that  puxpoee» 
will  not  be  enforced  by  the  courts,  although 
no  improper  or  unlawful  means  were  used 
or  intended  to  be  used.  Owens  v.  Wilkin- 
son, 20  App.  D.  C.  51. 

But  a  contract  for  the  proeecution  of  a 

240  U.  8. 


1915. 


CROCKER  T.  UNITED  STATES. 


76,76 


Crawford  ▼.  United  Stat«f ,  212  U.  S.  188, 
i>8  L.  ed.  466,  28  Sup.  Ct.  Rep.  260,  15  Ann. 
Cm.  392;  Providence  Tool  Co.  ▼.  Norris,  2 
Wan.  45,  66,  17  L.  ed.  868,  871;  Kmmm  ▼. 
Beadi,  96  N.  Y.  404;  Den  ex  dem.  Stewart 
▼.  Johnson,  18  N.  J.  L.  87;  Fairohild  ▼. 
HcMahon,  139  N.  Y.  290,  36  Am.  St.  Rep. 
701.  34  N.  E.  779. 

In  addition  to  appellant  company't  con- 
etnictive  knowledge,  the  contract  wat  in- 
herently unlawful  and  therefore  unenforce- 
able. 

2  Dill.  Mun.  Corp.  5th  ed.  p.  1146;  San 
Diego  ▼.  San  Diego  &  L.  A.  R.  Co.  44  Cal. 
106;  Drake  ▼.  Elizabeth,  69  N.  J.  L.  190, 
54  AtL  248;  Foster  ▼.  Cape  May,  60  N.  J. 
L.  78,  36  AtL  1089;  Heughes  ▼.  Board  of 
Education,  37  App.  Div.  180,  56  N.  Y.  Supp. 
799;  Jacques  ▼.  Louisville,  32  Ky.  L.  Rep. 
574,  106  S.  W.  308;  2  Century  Dig.  Contr. 
%  462;  Woodward,  Quasi  Contr.  1913,  chap. 
8,  p.  210;  Hentig  ▼.  Staniforth,  5  Maule  & 
S.  122,  17  Revised  Rep.  203;  Oom  v.  Bruce, 
12  East,  225,  11  Revised  Rep.  367;  McGour- 
key  V.  Toledo  &  0.  a  R.  Co.  146  U.  S.  536, 
36  L.  ed.  1079,  13  Sup.  Ct.  Rep.  170; 
Thomas  v.  Brownville,  Ft.  K.  &  P.  R.  Co. 
100  U.  S.  522,  27  L.  ed.  1018,  3  Sup.  Ct. 
Rep,  315;  United  States  v.  Carter,  217  U. 
S.  286,  54  L.  ed.  769,  30  Sup.  Ct.  Rep.  515, 
10  Ann.  Cas.  594;  Wardell  v.  Union  P.  R. 
Co.  103  U.  S.  651,  26  L.  ed.  509,  7  Mor.  I 


Ifin.  Rep.  144;  West  ▼.  Camden,  135  U.  8. 
507,  34  L.  ed.  264,  10  Sap.  Ct.  Rep.  888. 

Mr.  Justioe  Van  Deranter  dellTered  the 
opinion  of  the  court: 

This  is  a  claim  for  furnishing  letter  car- 
riers^ satchels  under  a  contract  with  the 
Postmaster  QeneraL  The  contractor  wat  a 
New  Jersey  corporation  and  its  trustee  in 
bankruptqr  is  the  present  claimant.  In  the 
court  of  claims  a  small  part  of  the  daim 
was  sustained  and  the  balance  rejected. 
49  Ct  CI.  85.  Only  the  claimant  appeals, 
so  the  part  sustained  is  not  here  in  con- 
troversy. 

[76]  As  shown  by  the  findings  the  facts 
are  these:  By  public  advertisement  in  May, 
1902,  the. Postmaster  General  solicited  bids 
for  furnishing  letter  carriers'  satchels  for 
the  free  delivery  service  for  a  period  of 
four  years.  Shortly  after  the  advertisement 
the  New  Jersey  company  and  one  Lorena 
entered  into  a  written  agreement  whereby 
the  company  employed  him  to  assist  In  se- 
curing for  it  the  contract  for  furnishing 
the  satchels,  it  being  particularly  stipulated 
that  he  and  the  company's  vice  president, 
one  Crawford,  should  determine  the  bid  to 
be  made,  and  should  present  it  in  the  com- 
pany's name;  that,  if  the  company  got  the 
contract,  Loreni  ihould  receive  i^l  profits 
arising  out  of  the  same  in  excess  of  25  cents 
on  each  satchel,  and  that,  if  the  company 


claim  against  the  Federal  government,  which 
provides  for  the  presentation  of  the  claims 
by  the  agent,  and  for  "any  diplomatic  nego- 
tiations as  may  be  deemed  by  him  best  for 
the  interest  of  the  party  of  the  second  part," 
is  not  void  on  its  face,  and  where  there  is 
no  improper  personal  solicitation  of  the 
members  of  Congress,  tiie  party  perform- 
ing the  services  is  entitled  to  his  compensa- 
tion. Knut  V.  Nutt,  83  Miss.  365,  102  Am. 
St.  Rep.  452,  35  So.  686,  affirmed  in  200 
U.  8.  13,  50  L.  ed.  350,  26  Sup.  Ct.  Rep. 
216. 

A  contract  of  employment  of  attorneys 
to  obtain  the  allowance  of  a  claim  by  the 
Federal  fl;ovemment  for  property  destroyed 
during  the  Civil  War,  where  the  chief  ob- 
stacle to  the  allowance  of  the  claim  was  a 
strong  belief  on  the  part  of  certain  mem- 
bers of  the  Senate  that  the  claimant  had  not 
been  a  loyal  citizen,  was  sustained  in  Pen- 
n^Miker  v.  Williams,  136  Ky.  120,  120  8. 
W.  321.  The  trial  court  answered  the  ob- 
jection in  a  manner  which  was  approved  by 
the  court  of  appeals,  by  stating  that  there 
was  no  proof  in  the  record  to  show  that 
any  lobbying  was  done  by  the  attorneys,  but 
there  was  proof  that  such  services  were 
rendered  as  any  reputable  lawyer  might 
Tender  under  the  circumstances.  A  petition 
for  modification  and  extension  of  this  opin- 
ion was  overruled  in  136  Ky.  143,  123  S. 
W.  672. 

Contracts  to  pay  attorneys  a  contingent 
40  li.  ed. 


fee  for  purely  professional  services  in  prose- 
cuting a  claim  against  the  United  States 
are  legitimate  (Stanton  v.  Embrey,  93  U. 
8.  557,  23  L.  ed.  985;  Bemiss  v.  Taylor, 
110  U.  S.  42,  28  L.  ed.  64,  3  Sup.  Ct.  Rep. 
441;  Trist  v.  Child  (Burke  v.  Child)  21 
Wall.  441,  22  L.  ed.  623;  Wright  v.  Tebbitts, 
91  U.  S.  252,  23  L.  ed.  320;  Bergen  v. 
Frisbie,  125  Cal.  168,  57  Pac.  784),  except 
where  such  agreements  are  denounced  by 
statute.  For  examples  of  such  statutes,  see 
Wailee  v.  Smith,  157  U.  S.  271,  39  L.  ed. 
698,  15  Sup.  Ct.  Rep.  624;  Ball  v.  Halsell, 
161  U.  S.  72,  40  L.  ed.  622,  16  Sup.  Ct. 
Rep.  554;  Bachman  v.  Larson,  109  U.  S. 
659,  27  L.  ed.  1067,  3  Sup.  Ct.  Rep.  479; 
Tanner  v.  United  States,  32  CL  Cl.  192; 
Lynch  v.  Pollard,  26  Tex.  Civ.  App.  103, 
62  S.  W.  945 ;  Ralston  v.  Dunaway,  —  Ark. 
•— ,  184  S.  W.  425. 

As  to  the  validity  of  contracts  to  procure 
legislative  action,  generally — see. notes  to 
Houlton  V.  Dunn,  30  L.RJk.  737,  and  Stroem- 
er  V.  Van  Orsdel,  4  L.RJL(N.S.)  213. 

And  as  to  the  validity  of  a  contract  as 
affected  by  the  fact  that  its  performance 
may  involve  the  necessity  of  procuring  s<une 
action  ^  public  officials-— see  note  to  Cole  v. 
Brown-Hurl^  Hardware  Co.  18  LJRJi. 
(NJ3.)  1161. 

On  the  validity  of  a  contract  as  to  loca- 
tion of  a  public  buildim^— see  note  to  Ed- 
wards T.  Qoldsboro,  4  LJLA.(KJ3.)  689. 

5S5 


7^78 


SUPREME  COURT  OF  THE  UNITED  8TATE& 


Ooi.  Xbm^ 


did  not  get  the  contract,  he  was  to  accept 
$1  aa  full  payment  for  his  services.    Lorenz 
and   Crawford  then   entered  into  a  secret 
arrangement   with   one   Machen,   who   was 
superintendent  of  the  free  delivery  service 
and  charged  with  important  duties  relating 
to  the  purchase  of  the  satchels,  whereby,  in 
the  event  the  company  got  the  contract, 
Lorens's   share   of   the  profits   was   to   be 
divided  among  them  on  the  basis  of  one 
half  to  Machen  and  one  fourth  to  each  of 
the   others.     After   this   arrangement   was 
made  a  bid  for  the  satchels  was  prepared 
and  submitted  in  the  company's  name,  and 
was  accepted  by  the  Postmaster  General. 
The  contract  sued  upon  followed  in  r^ular 
course,  the  company  agreeing  therein  to  fur- 
nish the  satchels  in  such  quantities  and  at 
such    times    as    the    postoffice    authorities 
might  direct.     The  satchels  were  to  be  of 
three  classes,  those  of  classes  A  and  C  to 
have  shoulder  straps  and  those  of  class  B 
to  be  without  straps.    The  prices  to  be  paid 
by    the   government   were    $2.10    for    each 
satchel  of  class  A;  $3.16  for  each  of  class 
B.,  and  $3.15  for  each  of  class  C.    This  in- 
cluded   the    shoulder    straps    on    those    of 
classes  A  and  C.    The  company  was  not  a 
manufacturer  of  satchels  or  of  the  materials 
used  in  making  them,  and  to  enable  it  to 
comply  with  [77]  the  contract  it  arranged, 
through    Crawford,    to   have    the    satchels 
made  by  a  manufacturer  at  Hartford,  Con- 
necticut.    But,  as  the  manufacturer  could 
not  supply  shoulder  straps  of  the  type  re- 
quired,  the   company   and   Lorenz   entered 
into  a  further  agreement  to  the  effect  that 
Lorenz  should  supply  the  shoulder  straps, 
that  out  of  what  was  paid  by  the  govern- 
ment for  the  satchels  the  company  should 
pay  him  45  cents  on  each  satchel  of  class 
A,  $1.19  on  each  of  class  B,  and  84  cents  on 
each  of  class  C,  as  his  share  of  the  profits  j 
and  to   reimburse   him   for   supplying  the 
straps.      Crawford   and    Machen    had    con- 
ferred about  the  straps,  and  Machen  had 
said   that  the  'government   would   get   the 
straps,  pay  for  them,  send  them  to  the  com- 
pany's manufacturer,  and  adjust  any  dif- 
ference afterwards. 

Thereafter  and  prior  to  March  17,  1903, 
the  company  furnished  over  10,000  satchels 
pursuant  to  the  terms  of  the  contract,  save 
that  the  shoulder  straps  on  those  of  classes 
A  and  C,  which  were  in  excess  of  $5,000, 
were  provided  and  paid  for  by  the  govern- 
ment, through  Machen,  at  a  cost  of  39^ 
cents  each.  These  satchels  were  all  paid 
for  by  the  government,  through  Machen,  at 
the  contract  rates  without  any  deduction 
for  the  straps.  Out  of  the  moneys  so  re- 
ceived the  company  paid  Lorenz  45  cents 
on  each  satchel  of  class  A,  $1.19  on  each 
of  clasa  By  and  84  cents  on  each  of  class  C, 
^S0 


and  he  in  turn  divided  what  he  received 
with  Machen  and  Crawford. 

Between  March  17  and  April  80,  1903^ 
the  company  furnished  6,201  more  satchels, 
pursuant  to  the  terms  of  the  contract,  save 
that  the  shoulder  straps  on  those  of  elassea 
A  and  C,  of  which  there  were  4,912,  wera 
provided  and  paid  for  by  the  government^ 
through  Machen,  at  a  cost  of  39^  oenta 
each.  These  satchels  were  accepted  and 
retained  by  the  postoffice  authorities.  But 
when  payment  for  them  under  the  contract 
was  requested,  it  was  refused.  This  waa 
because  the  Postmaster  General  had  then 
learned  of  the  corrupt  arrangement  giving 
[78]  Machen  an  interest  in  the  profits,  and 
had  rescinded  the  contract  and  stopped  fur- 
ther payments  under  it. 

No  shoulder  straps  were  furnished  by  the 
company,  through  Lorenz  or  otherwise,  and 
both  he  and  Crawford  knew  that  the  strapa 
were  purchased  and  supplied  by  the  gov- 
ernment. Before  the  rescission  by  the 
Postmaster  General  the  company  did  not 
know  that  Machen  was  to  share  or  waa 
sharing  in  the  profits,  or  that  the  govern- 
ment was  supplying  the  shoulder  straps, 
save  as  the  company  may  have  been  charge- 
able with  the  knowledge  of  Lorenz  and 
Crawford,  who  represented  it  in  securing 
and  executing  the  contract. 

It  was  for  furnishing  the  6,201  satchela 
after  March  17,  1903,  that  a  recovery  waa 
sought  in  the  court  of  claims,  and  the  part 
of  the  claim  rejected  was  for  the  4,912 
satchela  of  classes  A  and  C,  the  rejection 
being  put  on  the  grounds  (a)  that  no  re- 
covery could  be  had  upon  the  contract,  be- 
cause it  called  for  satchels  with  shoulder 
straps  and  the  company  did  not  furnish  the 
straps,  and  (b)  that  no  recovery  could  bo 
had  upon  a  quantum  valebat,  because  the 
value  of  the  satchels  as  furnished  was  not 
shown. 

In  the  briefs  reference  is  made  to  portiona 
of  the  opinion  delivered  in  the  court  of 
claims  sa  if  they  were  not  in  accord  with 
the  findings.  We  do  not  so  read  the  opin- 
ion, but  deem  it  well  to  observe,  aa  waa 
done  in  Stone  v.  United  States,  164  U.  8. 
380,  382,  383,  41  L.  ed.  477,  478,  17  Sup. 
Ct.  Rep.  71,  that  "the  findings  of  the  court 
of  claims  in  an  action  at  law  determine 
all  matters  of  fact  precisely  as  the  verdict 
of  a  jury,"  and  that  "we  are  not  at  liberty 
to  refer  to  the  opinion  for  the  purpose  of 
eking  out,  controlling,  or  modifying  the 
scope  of  the  findings."  See  also  Collier  t. 
United  States,  173  U.  S.  79,  80,  43  L.  ed. 
621,  622,  19  Sup.  Ct.  Rep.  330;  United 
States  V.  New  York  Indians,  173  U.  8.  46i» 
470,  43  L.  ed.  769,  771, 19  Sup.  Ct  Rep.  487. 

We  are  of  opinion  that  in  the  transactions 
out  of  which  the  claim  arose  there  waa  aa 

S40  U.  8. 


1915. 


CROCK£R  ▼.  UNITED  STATES. 


78-81 


obTiooi  departure  from  recognized  Ic^l  and 
moral  standards.  It  began  when  the  corn- 
pan  j  employed  Lorenz,  upon  a  compensa- 
tion contingent  [79]  upon  success,  to  secure 
the  contract  for  furnishing  the  satchels,  and 
it  persisted  until  its  discovery  by  the  Post- 
master General  led  to  the  rescission  of  the 
contract.  Because  of  their  baneful  tend- 
ency as  here  illustrated,  agreements  like 
that  under  which  Lorenz  was  employed  are 
deemed  inconsistent  with  sound  morals  and 
publie  policy,  and  therefore  invalid.  Deal- 
ing with  su<^  an  agreement  this  court  said 
in  Providence  Tool  Co.  v.  Norris,  2  Wall. 
45,  54,  55,  17  L.  ed.  868,  870,  871:  ''AU 
ocmtracts  for  supplies  should  be  made  with 
those,  and  with  those  only,  who  will  execute 
them  most  faithfully,  and  at  the  least  ex- 
pense to  the  government.  Considerations 
as  to  the  most  efficient  and  economical  mode 
of  meeting  the  public  wants  should  alone 
control,  in  this  respect,  the  action  of  every 
department  of  the  government.  No  other 
consideration  can  lawfully  enter  into  the 
transaction,  so  far  sa  the  government  is 
concerned.  Such  is  the  rule  of  publie  pol- 
icy; and  whatever  tends  to  introduce  any 
other  elements  into  the  transaction  is 
against  public  policy.  That  agreements  like 
the  one  under  consideration  have  this  tend- 
ency is  manifest  They  tend  to  introduce 
persona]  solicitation  and  personal  influence 
sa  elements  in  the  procurement  of  contracts; 
and  thus  directly  lead  to  inefficiency  in  the 
public  service,  and  to  unnecessary  expendi- 
tures of  the  public  funds.  .  .  •  Agree- 
ments for  compensation  contingent  upon 
success  suggest  the  use  of  sinister  and  cor- 
rupt means  for  the  accomplishment  of  the 
end  desired.  The  law  meets  the  suggestion 
of  evil,  and  strikes  down  the  contract  from 
its  inception.  There  is  no  real  difference  in 
principle  between  agreements  to  procure 
favors  from  legislative  bodies,  and  agree- 
ments to  procure  favors  in  the  shape  of  con- 
tracts from  the  heads  of  departments.  The 
introduction  of  improper  elements  to  con- 
trol the  action  of  both  is  the  direct  and 
inevitable  result  of  all  such  arrangements." 
Further  recognition  of  this  rule  is  found  in 
Marshall  v.  Baltimore  &  0.  R.  Co.  16  How. 
314,  334,  335,  14  L.  ed.  953,  961,  962;  [80] 
Trist  V.  Oiild  (Busker  ▼.  Child)  21  WaU. 
441,  22  L.  ed.  623;  Meguire  v.  Corwine,  101 
U.  S.  108,  25  L.  ed.  899;  Oscanyan  v.  Win- 
chester Repeating  Arms  Co.  108  U.  S.  261, 
273,  26  L.  ed.  539,  544;  Sage  v.  Hampe,  235 
U.  8.  99,  105,  59  L.  ed.  147, 150,  85  Sup.  a. 
Hep.  94. 

The  secret  arrangement  whereby  Maehen 
was  to  share  in  the  profits  wsa  most  repre- 
hensible. Its  natural  effect,  as  also  its 
purpose,  was  to  secure  for  the  company  an 
inadmissible  advantage.  The  satchels  were 
•0  Jj.  ed. 


wanted  for  the  free  delivery  service,  and 
Machen's  relation  to  that  service  made  it 
probable,  if  not  certain,  that  his  advice 
respecting  the  reasonableness  of  the  bid, 
the  number  of  satchels  required  from  time 
to  time,  and  the  company's  performance  of 
the  contract,  would  be  sought  and  given 
consideration  by  his  superiors  in  the  Post- 
office  Department.  The  advertisement  for 
bids,  the  postal  regulations  (1002  ed.  §§  17 
and  70),  and  the  findings  leave  no  doubt 
that  he  was  charged  with  important  duties 
of  that  character.  Public  policy  and  sound 
morals  forbade  that  he  should  have  any  per- 
sonal interest  in  the  bid  or  contract  lest 
he  might  be  tempted  to  advance  that  in- 
terest at  the  expense  of  the  government. 
Under  the  secret  arrangement,  which  was 
made  before  the  bid  was  submitted,  he  had 
such  an  interest  and  therefore  was  in  a 
position  where  the  hope  of  personal  gain 
was  likely  to  exercise  a  predominant  in- 
fluence and  prevent  a  faithful  discharge  of 
his  public  duties,  as  in  fact  it  did.  Re- 
ferring to  this  arrangement,  this  court  said 
in  Crawford  v.  United  States,  212  U.  S.  183, 
192,  53  L.  ed.  465,  469,  29  Sup.  Ct.  Rep. 
260,  15  Ann.  Cas.  392:  "Its  almost  neces- 
sary result,  if  carried  out,  would  be  to  de- 
fraud the  United  States.  The  fraud  might 
be  perpetrated  by  getting  the  contract  at  a 
higher  price  than  otherwise  would  have 
been  obtained,  or,  if  already  obtained,  then 
the  United  States  might  be  defrauded  by 
the  general  superintendent  [Maehen]  ac- 
cepting improper  satchels,  not  made  of  the 
materials  or  in  the  manner  specified  in  the 
contract,  or  by  his  requiring  the  delivery 
of  more  satchels  than  were  sufficient  for  the 
wants  of  the  Department.  •  •  •  Such  a 
corrupt  agreement,  if  [81]  carried  out, 
would  naturally,  if  not  necessarily,  result  in 
defrauding  the  United  States  by  causing  it 
to  pay  more  for  satchels  than  was  neces- 
sary, or  for  more  satchels,  or  possibly  in- 
ferior ones,  than  it  otherwise  would,  but  for 
the  corrupt  agreement  set  forth." 

Of  course,  the  secret  arrangement  with 
Maehen  operated  to  vitiate  the  company's 
contract,  and  justified  the  Postmaster  Gen- 
eral in  rescinding  it  on  discovering  the 
fraud.  Warden  ▼.  Union  P.  R.  Co.  103  U. 
8.  651,  658,  26  L.  ed.  509,  511,  7  Mor.  Min. 
Rep.  144;  Thomas  v.  Brown ville.  Ft.  K.  ft 
P.  R.  Co.  109  U.  S.  522,  524,  27  L.  ed.  1018, 
1019,  S  Sup.  Ct  Rep.  815;  McGourkey  v. 
Toledo  ft  O.  C.  R.  Co.  146  U.  S.  536,  552, 
566,  86  L.  ed.  1079,  1085,  1090,  13  Sup.  a. 
Rep.  170;  Smith  ▼.  Sorby,  L.  R.  8  Q.  B.  Div. 
552,  note;  Harrington  t.  Victoria  Graving 
Dock  Co.  L.  R.  8  <i.  B.  Div.  549,  47  L.  J. 
Q.  B.  N.  S.  594,  89  L.  T.  N.  S.  120,  26 
Week.  Rep.  740;  2  Dill.  Mun.  Ck>rp.  5th  ed. 
§  778.    And  this  is  so,  even  though  the  com- 

ftS7 


81-88 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm» 


pany  was  without  actual  knowledge  of  the 
corrupt  arrangement.  It  was  made  by 
Lorenz  and  Crawford  while  endeavoring  to 
secure  the  contract  for  the  company  and 
was  a  means  to  that  end.  They  were  the 
company's  agents  and  were  securing  the 
contract  at  its  request.  It  accepted  the 
fruits  of  their  efforts  and  thereby  sanc- 
tioned what  they  did,  and  made  their  knowl- 
edge its  own.  Krumm  v.  Beach,  96  N.  Y. 
308,  404;  Fairchild  v.  McMahon,  139  N. 
Y.  290,  36  Am.  St.  Rep.  701,  34  N.  E.  779; 
White  V.  Sawyer,  16  Gray,  686,  689;  First 
Nat.  Bank  v.  New  Milford,  36  Conn.  93, 
101;  Barwick  ▼.  English  Joint  Stock  Bank, 
L.  R.  2  Exch.  269,  265,  36-  L.  J.  Exch.  N. 
S.  147,  16  L.  T.  N.  S.  461,  16  Week.  Rep. 
877,  12  Eng.  Rul.  Cas.  298;  Mackay  v. 
Commercial  Bank,  L.  R.  6  P.  C.  394,  410,  et 
seq.  43  L.  J.  P.  C.  N.  S.  31,  30  L.  T.  N.  S. 
180,  22  Week.  Rep.  473;  Leake,  Contr.  6th 
ed.  265.  335,  336;  Wald's  Pollock,  Contr. 
3d  ed.  392. 

It  results  that  no  recovery  could  be  had 
upon  the  contract  with  the  Postmaster  Gen- 
eral, because  it  was  tainted  with  fraud  and 
rescinded  by  him  on  that  ground.  But  this 
was  not  an  obstacle  to  a  recovery  upon  a 
quantum  valebat.  Clarke  v.  United  States, 
95  U.  S.  539,  643,  24  L.  ed.  618,  519;  War- 
dell  V.  Union  P.  R.  Co.  103  U.  S.  659,  26 
L.  ed.  612,  7  Mor.  Min.  Rep.  144;  Thomas 
V.  Brownville,  Ft.  K.  &  P.  R.  Co.  109  U.  S. 
525,  27  L.  ed.  1010,  3  Sup.  Ct.  Rep.  315. 
Whether  requisite  proof  was  made  of  the 
value  of  the  satchels  as  furnished  is  another 
[82]  question.  The  court  of  claims  made 
no  finding  of  their  value,  and,  in  explana- 
tion of  this,  said  that  there  was  "a  com- 
plete absence"  of  evidence  upon  the  sub- 
ject. The  burden  of  proof  was  with  the 
claimant,  and,  if  he  failed  to  carry  it,  he 
is  not  in  a  position  to  complain, — especially 
as  it  appears  that  the  government  season- 
ably objected  that  he  had  not  proved  the 
value.  He  insists,  however,  that  the  find- 
ings show  the  price  at  which  the  govern 
ment  contracted  to  take  the  satchels  with 
the  shoulder  straps,  and  also  what  it  cost 
the  government  to  supply  the  straps,  and 
that  the  difference  should  be  regarded,  in 
the  absence  of  other  evidence,  as  represent- 
ing the  value  of  the  satchels  as  furnished. 
— ^tliat  is,  without  the  straps.  The  insist- 
ence proceeds  upon  the  theory  that  the  con- 
tract price  was  in  the  nature  of  an  admis- 
sion by  the  government  of  the  value  of  the 
satchels  with  the  straps.  However  this 
might  be  in  other  circumstances,  it  is  whol- 
ly inadmissible  here,  for  the  fraud  with 
which  the  contract  was  tainted  completely 
discredited  the  contract  price,  and  pre- 
vented it  from  being  treated  as  an  admis- 
sion of  the  value  by  the  government.  It 
588 


therefore  was  incumbent  upon  the  claimant 
to  show  the  value  by  other  evidence,  and, 
as  this  was  not  done,  no  recovery  could  be 
had  upon  a  quantum  valebat. 
Judgment  affirmed. 

Mr.  Justice  McKenna  and  Mr.  Justice 
Holmes  dissent,  being  of  opinion  that  the 
case  should  be  remanded  for  findings  on  the 
question  of  value. 

Mr.  Justice  McHeynolds  took  no  part  in 
the  consideration  or  decision  of  this  case. 


[83]  JUAN  SURIS  CARDONA,  Appt, 

V. 

FRANCISCO  P.  QUliTONES  and  £1  Banco 
de  Puerto  Rico. 

(See  S.  C.  Reporter's  ed.  83-90.) 

Appeal  «  time     for     taking  —  when 
deemed  begun. 

1.  An  appeal  to  the  Federal  Supreme 
Court  from  the  supreme  court  of  Porto  Rico, 
which  was  prayed  within  the  statutory  time, 
will  not  be  dismissed  because  it  was  not 
allowed  by  the  court  within  that  time. 
[For  other  cases,  see  Appeal  and  Error,  2591- 

2603,  in  Digest  Sup.  Ct.   1V08.J 

Appeal  ^  from    Porto    Kloo    supreme 
court  ^  review  of  facts. 

2.  The  facts  cannot  be  reviewed  by  the 
Federal  Supreme  Court  on  an  appeal  from 
the  Porto  Rico  supreme  court  where  the 
record  does  not  contain  the  oral  and  docu- 
mentary evidence  upon  which  the  court 
acted  except  so  far  as  the  same  may  be 
shown  by  the  opinion  of  the  court  below, 
or  may  be  contained  in  a  statement  of  facts 
prepared  by  that  court  for  the  purposes  of 
the  appeal. 

[For  other  cases,  see  Appeal  and  Error,  VIII. 
1,  8,  in  Digest  Sap.  Ct.  1908.] 

Appeal  «  from    Porto    Rico    supreme 

court  «  following  decision  below  « 

local  law. 

3.  The  action  of  the  supreme  court  of 
Porto  Rico  as  to  matters  concerning  purely 
local  law,  such  as  the  form  of  the  pleadings, 
the  allowance  of  a  default  judgment  as  to 
issues  presented  by  certain  amendments  of 
the  pleadings,  the  admissibility  of  docu- 
mentary evidence,  etc.,  will  not  be  dis- 
turbed by  the  Federal  Supreme  Court  on 
appeal  unless  the  latter  court  is  convinced 
that  such  action  was  clearly  erroneous. 
[For  other  cases,  see  Appeal  and  Error,  VIII. 

m,  in  Digest  Sap.  Ct.  1908.] 

Note.— On  appellate  jurisdiction  of  Fed- 
eral Supreme  Court  over  Porto  Rican  courts 
— see  note  to  Garrozi  v.  Dastas,  51  L.  ed. 
U.  S.  369, 

On  the  practice  and  procedure  governing 
the  transfer  of  causes  to  the  Federal  Su- 
preme Court  on  writ  of  error  or  appeal — 
see  note  to  Wedding  v.  Meyler,  66  L.RJL 
833. 

S40  V.  8. 


iyio. 


GARDOIJA  ▼.  QUiSiONES. 


83-86 


Appeal  —  scope   of    rerlew  —  eonten- 
tions  which  dispute  findings  of  fact. 

4.  Legal  propositions  which  ignore  or 
dispnte  the  findings  of  fact  on  which  the 
eonclnsion  of  the  court  below  was  based 
cannot  be  successfully  urffed  in  the  Federal 
Supreme  Court  as  grounds  for  the  reversal 
on  appeal  of  a  decree  of  the  Porto  Rico  su- 

Sreme  court  in  a  case  in  which  the  record 
I  not  in  such  shape  as  to  permit  a  review 
of  the  facts. 

(For  other  cases,  see  Appeal  and  Error,  VIII. 
e.  in  Digest  Sup.  Ct.  1908.] 

[No.  185.] 

Submitted  January  18,  1916.    Decided  Feb- 
ruary 21,  1918. 

APPEAL   from    the    Supreme   Court   of 
Porto  Rico  to  review  a  decree  which 
affirmed  a  decree  of  the  District  Court  of 
Mayaguez  in  favor  of  defendant  in  an  ac- 
tion in  the  nature  of  ejectment.    Affirmed. 
See  same  case  below,  17  P.  R.  R.  614. 
The  facts  are  stated  in  the  opinion. 

Mr.  Jos6  R.  F.  Savage  submitted  the 
cause  for  appellant.  Mr.  Fernando  Vftzquez 
was  on  the  brief. 

Mr.  Francis  H.  Dexter  submitted  the 
eause  for  appellees. 

Mr.  Chief  Justice  White  delivered  the 
opinion  of  the  court: 

Both  courts  below  rejected  the  claim  of 
title  made  by  the  appellant  to  a  tract  of 
land  of  40  cuerdas.  As  the  [84]  appeal 
was  prayed  within  the  statutory  time,  the 
mere  date  of  its  allowance  by  the  court  is 
not  controlling,  and  the  motion  to  dismiss 
which  proceeds  upon  a  contrary  assumption 
is  therefore  without  foundation  and  is  over- 
ruled. United  SUtes  v.  Vigil,  10  Wall.  423, 
427,  19  L.  ed.  954,  055. 

Obviously,  upon  the  theory  that  our 
power  to  review  was  controlled  by  the  rule 
obtaining  as  to  territorial  courts  of  the 
United  States,  this  record,  as  was  the  case 
in  Elzaburu  v.  Chaves,  239  U.  S.  283,  ante, 
290,  36  Sup.  Ct.  Rep.  47,  contains  a  state- 
ment of  facts  prepared  by  the  lower  court 
for  the  purposes  of  this  appeal.  As  there 
is  an  entire  absence  from  the  record  of  the 
oral  and  documentary  evidence  upon  which 
the  court  below  acted,  except  so  far  as  the 
same  may  be  shown  by  the  opinion  of  the 
oourt,  or  may  be  contained  in  the  state- 
ment of  facts,  it  follows  that  the  record 
does  not  enable  us  to  review  the  facts,  and 
we  proceed  to  dispose  of  the  legal  proposi- 
tions urged  for  reversal  in  the  light  of  the 
facts  as  stated  and  as  elucidated  in  the 
opinion  of  the  court.  Abbreviating  and  some 
what  changing  the  order  in  which  they  are 
stated  below,  we  recapitulate  the  essential 
facts  as  follows: 
40  li.  ed. 


Two  brothers,  Jos4  Salvador  Suris  and 
Ram5n  Maria  Suris,  having  acquired  by 
various  acts  of  purchase  70  cuerdas  of  land 
in  the  ward  of  Sabana  Eneas  of  San  Ger- 
man, in  November,  1870,  executed  a  mort- 
gage on  40  cuerdas  of  the  land  thus  ac- 
quired, being  the  40  cuerdas  here  in  contro- 
versy, in  favor  of  the  Charity  Hospital  at 
San  GermAn.  In  1879  the  Charity  Hospital 
conunenced  proceedings  to  foreclose  this 
mortgage,  but  such  proceedings  were  stayed 
imtil  1882  in  consequence  of  an  appeal 
taken  to  the  Territorial  Audiencia.  After 
the  cessation  of  the  stay,  in  that  year  an 
attachment  against  100  cuerdas  of  land  be- 
longing to  the  two  brothers  was  levied  and 
the  property  thus  attached  was  placed  (se- 
questered) in  the  hands  of  one  Pablo  Maria 
StefanL  On  the  same  day,  [85]  February  9, 
1882,  by  a  contract  under  private  signature 
the  two  Suris  brothers  sold  to  Stefani  the 
40  cuerdas  here  in  controversy  which  had 
been  mortgaged  to  the  hospital,  the  pur- 
chaser obligating  himself  to  pay  the  hospi- 
tal debt,  and,  if  a  surplus  remained,  to 
pay  certain  attorney's  fees  which  had  been 
incurred.  The  agreement  also  contained  a 
conveyance  to  Stefani  of  another  and  dis- 
tinct tract  of  land  for  anothec  and  distinct 
price.  This  agreement  under  private  signa- 
ture was  never  inscribed  upon  the  public 
records.  A  few  days  after .  it  was  made, 
and  presumably  before  the  contract  of  sale 
had  been  carried  out,  the  Suris  brothers 
executed  before  a  notary  an  act  of  consoli- 
dation of  the  various  properties  which  they 
had  acquired,  which  they  described  as  "Per- 
seguida,"  and  this  act  was  put  upon  the 
public  records.  Under  the  private  agree- 
ment Stefani,  the  purchaser,  went  into  pos- 
session and  discharged  the  obligations  of 
the  private  contract  of  sale. 

In  1888  a  commercial  firm,  Schulze  & 
Company,  as  creditors  of  the  Succession  of 
Stefani,  who  had  in  the  meanwhile  died« 
brought  suit  against  his  Succession  to  en- 
force its  debt,  and  for  the  purpose  of  get- 
ting upon  the  records  the  possessory  title 
of  Stefani  to  enable  an  attachment  to  be 
levied,  instituted  and  carried  out  the  neces- 
sary proceedings.  When  the  order  for 
record  was  obtained,  the  property  was  levied 
upon  and  sold  at  a  judicial  sale  and  was 
bought  in  by  Schulze  &  Company.  After 
thus  becoming  the  purchasers  of  the  land 
in  controversy,  the  firm  in  1899  executed 
before  a  notary  and  put  of  record  a  deed 
consolidating  into  a  plantation  called 
'Imisa"  various  tracts  of  land  containing 
102.30  cuerdas,  the  deed  reciting  that  one 
of  the  parcels  of  land  included  in  the  plan- 
tation was  a  tract  of  40  cuerdas  called 
I  "Hospital"  or  'Terseguida."  Ram6n-  Maria 
*  Suris,  one  of  the  original  vendors,  died  in 

5S9 


8&-88 


SUPREME  COURT  OF  THB  UNITED  STATES. 


Oct.  Tkbic, 


the  meanwhile,  and  in  1900  hie  heirs  put 
upon  record  a  declaratory  deed  asserting 
their  undivided  ownership  [86]  as  the  suc- 
cessors of  their  father  to  a  tract  of  40 
cuerdaa,  known  as  "Perseguida." 

The  Bank  of  Porto  Rico,  as  the  holder 
of  a  mortgage  put  upon  the  Imisa  planta- 
tion by  Schulze  &  Company,  foreclosed  the 
same  and  bought  in  the  property  in  August, 
1005,  and  in  November  of  the  following  year 
(1906)  the  bank  sold  the  plantation  thus 
acquired  to  Francisco  P.  Quifiones,  the  de- 
fendant, his  title  as  purchaser  having  been 
inscribed  upon  the  public  records. 

In  1907  Jos6  Salvador  Suris,  one  of  the 
original  vendors  under  the  act  of  private 
sale,  as  well  as  the  widow  and  heirs  of 
his  deceased  brother,  Ram6n  Maria  Suris, 
the  other  original  vendor,  each  executed 
deeds  of  sale  of  an  undivided  half  interest 
in  the  property  called  "Perseguida"  to  Juan 
Suris  Oardona,  a  son  of  Jos6,  and  these  acts 
of  sale  were  put  upon  the  public  registry. 
A  few  days  later  the  parties  vendor  to 
the  acts  above  stated  executed  another  no- 
tarial act  in  which  they  declared  that  the 
property  had  not  been  in  their  possession, 
but  in  the  possession  of  the  defendant 
Quifiones  and  the  Bank  of  Porto  Rico,  and 
therefore  they  had  not  collected  revenues, 
and  they  ceded  to  the  purchaser  the  right 
to  collect  such  revenues.  Under  the  owner- 
ship alleged  to  result  from  these  acts  this 
suit  was  commenced  by  Cardona  to  recover 
the  property. 

The  findings  in  express  terms  establish 
that  ''from  1882  the  property  sued  for 
ceased  to  belong  to  the  brothers  Jos^  Sal- 
vador and  Ram6n  Marfa  Suris  by  Reason 
of  the  sale  set  out  in  the  private  contract, 
and  since  then  it  has  been  in  the  quiet, 
peaceful,  and  public  possession,  as  owners, 
in  good  faith  and  by  title  of  purchase  of 
Stefani,  later  of  Schulze  &  Company,  then 
of  the  Banco  de  Puerto  Rico,  and  finally 
of  QuiSlones,  residents  of  Porto  Rico/'  As 
to  the  purchase  by  Cardona,  the  plaintifT, 
from  his  father  and  the  representatives  of 
hit  deceased  uncle,  the  findings  expressly 
state:  "When  the  plaintiff  purchased  the 
property  sought  to  be  recovered  he  knew 
the  [87]  history  of  it  as  here  related  and 
knew  that  his  father  and  cousins  had  not 
possessed  the  same  since  the  year  1882.' 
And  the  conclusion  reached  as  to  the  ulti- 
mate facta  on  this  subject  is  thus  expressed 
in  the  opinion  of  the  court  below :  "In  view 
of  the  manner  in  which  the  facts  have  oc- 
curred, we  have  no  doubt  whatever  that  the 
deeds  of  sale  of  the  property  in  question 
executed  in  favor  of  Juan  Suris  Cardona 
have  had  no  other  purpose  than  that  he 
should  institute  this  suit  to  avail  himself 
of  and  assert  his  rights  aa  a  third  party 
540 


and  thus  save  his  father  and  the  heirs  of 
his  uncle  from  the  consequences  of  the  pri- 
vate document  executed  in  favor  of  Stefani; 
and  we  are  likewise  convinced  that  the 
plaintiff  knew  the  history  of  the  said  prop- 
erty before  he  made  his  purchase,  and  that 
his  father  and  his  cousins  had  not  pos- 
sessed the  same  since  1882,  as  stated  in  th* 
complaint." 

Applying  the  law  to  the  facts  stated, 
the  court  concluded:  (a)  "Under  such  con- 
ditions the  plaintiff  cannot  claim  the  bene- 
fits which  the  law  grants  to  third  parties, 
because  nobody  can  be  a  third  party  who, 
although  he  had  not  intervened  in  the  first 
contract  of  sale,  purchased,  however,  know- 
ing that  his  vendors  were  not  the  owners 
and  had  no  possession  of  the  property  sold. 
The  same  doctrine  has  already  been  estab- 
lished by  this  court  in  the  ease  of  Voight 
V.  Ribas,  1  Decisiones  de  Puerto  Rico,  60, 
decided  May  10,  1900."  [17  P.  R.  R.  642.] 
(b)  From  the  possession  which,  as  we  have 
seen,  the  court  found  to  have  existed  from 
1882  in  Stefani  and  his  successors,  Schulze 
&  Company,  the  Bank  of  Porto  Rico  and 
Quifiones,  and  the  various  titles  which  were 
put  upon  the  record  in  the  transfers  aa 
made,  especially  the  inclusion  of  the  prop- 
erty in  the  plantation  "Imisa,"  it  was  held 
that  between  the  parties  there  was  a 
sufficient  basis  laid  for  a  just  title  and  pos- 
session as  owner  in  good  faith,  adequate 
to  sustain  a  prescription  of  ten  yeara, 
which  was  upheld. 

The  contentions  for  reversal  are  numer- 
ous and  are  [88]  greatly  multiplied  by 
their  reiteration  in  somewhat  changed  form 
of  statement  under  the  very  many  proposi- 
tions and  subdivisions  of  propositions  em* 
braced  in  the  elaborate  printed  argument, 
but  we  dispose  of  them  as  follows: 

First.  Giving  effect  to  the  settled  doc- 
trine by  which  we  do  not  disturb,  but,  on 
the  contrary,  uphold,  the  action  of  the 
court  below  as  to  matters  concerning  pure- 
ly local  law  except  upon  conviction  on  our 
part  of '  clear  error  committed  (Nadal  v. 
May,  233  U.  S.  447,  464,  68  L.  ed.  1040, 
1041,  34  Sup.  Ct.  Rep.  611;  Villanueva  ▼. 
Villanueva,  239  U.  S.  293,  299,  ante,  293, 296, 
36  Sup.  Ct.  Rep.  109),  we  at  once  dismiss 
from  view  the  various  contentions  concern- 
ing the  form  of  the  pleadings,  the  question 
whether  a  default  should  not  have  been 
allowed  as  to  the  issues  presented  by  cer- 
tain amendments  of  the  pleadings,  the  ad- 
missibility as  between  the  parties  or  their 
successors  or  assigns  of  the  act  under 
private  signature,  either  because  of  the 
asserted  ambiguity  of  its  terms  or  the  in- 
adequacy of  the  number  of  witnesses  to  its 
execution,  and  many  other  subjects  of  a 

S40  U.  S* 


1915. 


UNITED  STATES  ▼.  ANDREWS. 


88-90 


kindred  nature  too  numerout  to  be  reeapttu- 
lated. 

Seeond.  We  aleo  at  once  put  out  of  Tiew 
the  yariouB  contentiont  iterated  and  re- 
iterated under  every  proposition  which, 
while  a^arently  accepting  the  findings, 
virtually  dispute  them,  such  as  the  con- 
tentions that  the  private  instrument  did 
not  amount  to  a  sale  to  Stefani  because 
certain  alleged  bankruptcy  proceedings  re* 
fsnred  to  in  the  opinion  of  the  court  ex- 
cluded the  right  of  the  Suris  brothers  at 
that  time  to  sell  the  property,  that  no 
possession  followed  in  Stefani  from  the 
making  of  the  private  sale  because  that  in- 
strument waa  one  not  importing  possession 
in  and  of  itself,  without  proof  of  manual 
tradition,  and  also  numerous  other  conten- 
tions of  a  kindred  character  concerning  the 
judicial  proceedings  taken  by  Schulze  & 
Company  to  acquire  title  and  the  deed  of 
consolidation  by  them  recorded  which  we 
further  do  not  stop  to  specifically  point  out. 

[80]  With  these  things  disposed  of,  the 
remaining  contentions  come  to  this:  That 
the  decision  of  the  court  below  was  plainly 
violative  of  the  local  law  known  as  the 
mortgage  law,  and  the  general  provisions 
of  the  Code  concerning  the  necessity  of  the 
public  record  of  title  to  real  estate  and  the 
protection  afforded  by  the  same,  and  that, 
moreover,  an  obvious  disregard  of  the  mort- 
gage law  and  the  provisions  of  the  Code 
resulted  from  giving  to  the  sale  under 
private  signature  and  the  proceedings  and 
subsequent  transmutations  of  title  based 
upon  it  the  character  of  a  just  title 
suiBcient  on  its  face  to  be  the  basis  of  the 
ten  years'  prescription  under  the  Code, 
which  the  court  below  upheld.  But,  when 
stripped  of  the  confusion  in  the  mode  in 
which  they  are  stated,  and  reduced  to  their 
ultimate  significance,  all  the  contentions  on 
these  subjects  are  exclusively  based  upon 
the  assumption  that  the  plaintiff  below 
was  entitled  to  the  protection  afforded  by 
the  mortgage  law  to  third  persons  and  to 
the  assumed  inadequacy  of  the  title  relied 
upon  by  the  defendant  to  sustain  the  ten 
years'  prescription  as  against  a  third  per- 
son. The  propositions,  therefore,  in  their 
essence,  when  correctly  understood,  but 
ignore  or  dispute  the  findings  of  the  court 
below  upon  which  its  conclusion  was  ex- 
pressly based,  that  the  plaintiff  was  not  a 
third  person,  either  because  he  was  merely 
a  person  interposed  as  a  means  of  enabling 
him  apparently  to  assert  in  his  own  name, 
for  the  benefit  of  his  authors  in  title,  rights 
which  they  were  incapable  themselves  of 
asserting,  indeed,  could  not,  without  fraud 
OB  their  part,  enjoy,  or  because,  if  not  in 
a  strict  sense  a  person  interposed,  he  was 
Bevertheless  not  a  third  person  within  the 
•9  li.  ed. 


intendment  of  the  local  law,  because  he 
acquired  with  full  knowledge  of  the  want 
of  title  in  his  vendors  and  of  the  absence 
of  possession  on  their  part,  and  also  with 
knowledge  not  only  of  an  outstanding  title, 
but  of  possession  aa  owner  which  was  then 
and  had  been  enjoyed  by  the  defendant  and 
his  predecessors  in  right.  Thus  to  [OO] 
bring  the  propositions  to  the  true  basis 
upon  which  they  rest  serves  at  once,  with- 
out more,  to  establish  their  absolute  want 
of  foundation,  and  to  demonstrate  the  cor- 
rectness of  the  judgment  below  and  the 
duty  to  affirm  it. 
Affirmed. 


UNITED  STATES,  Appt., 

V. 

LINCOLN  C.  ANDREWS. 

(See  S.  C.  Reporter's  ed.  90-96.) 

Army  —  |^y  of  oflloer  —  absence  on 
leave. 

1.  The  right  of  an  Army  offioer  to  half 
pay  while  on  leave  of  absence,  which  is  ex- 
pressly conferred  by  U.  S.  Rev.  Stat,  f  1265, 
Comp.  Stat.  1913,  f  2104,  cannot  be  defeated 
by  the  action  of  the  military  authorities  in 
affixing  a  condition  to  the  grant  of  a  leave 
of  absence,  that  the  leave  shall  be  without 
pay. 

[For  other  cases,  see  Arroj  and  Navy,  VI. 
b,  m  Digest  Sup.  Ct.  1908.] 

Army  —  pay  of  officer  —  absence  on 
leave  —  estoppel. 

2.  An  Army  officer  is  not  bound  by  his 
acceptance  of  leave  of  absence  without  pro- 
test against  the  affixing  of  the  condition 
that  the  leave  shall  be  without  pay,  since 
such  condition  contravenes  the  express 
terms  of  U.  S.  Rev.  Stat,  f  1265,  Comp. 
SUt.  1913,  §  2104,  by  which  he  is  entitled 
to  half  pay  during  the  leave. 

[For  otber  cases,  see  Armj  and  Navy,  TI. 
b;  Estoppel,  III.  b,  7,  in  Digest  Sup.  Ct. 
1908.) 

Army  «  pay  of  officer  —  absence  on 
leave. 

8.  The  absence  of  an  Armv  officer  based 
on  leave  to  which  was  affixed  a  condition, 
contrary  to  U.  S.  Rev.  Stat.  §  1265,  Comp. 
Stat.  1913,  §  2104,  that  the  leave  shall  be 
without  pay,  cannot  be  treated,  because  of 
the  illegality  of  such  condition,  as  an  ab<* 
sence  without  leave,  for  which,  under  the 
statute,  no  pay  could  be  allowed. 
[For  other  cases,  see  Army  snd  Navy,  VI. 
b,  la  Digest  Sup.  Ct  1908.] 

[No.  193.] 

Argued  January  21  and  24,  1916.    Decided 
February  21,  1916. 

APPEAL  from  the  Court  of  Claims  to  re- 
view  an  award  of  half  pay  to  an  Army 
offioer  while  absent  on  leave.    Affirmed. 

541 


92 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Tebic» 


See  Mme  caie  below,  49  Ct.  CI.  801. 
The  facta  are  stated  in  the  opinion. 

Assistant  Attorney  General  Tkompaon 
argued  the  cause  and  filed  a  brief  for  ap- 
pellant: 

In  respect  to  administrative  matters  in 
the  Army,  where  it  is  necessary  to  exercise 
judgment  or  discretion,  unless  there  is  a 
clear  abuse  and  a  patent  contravention  of 
a  statute,  this  court  will  not  interfere. 

Reaves  v.  Ainsworth,  219  U.  S.  296,  304, 
55  L.  ed.  225,  228,  31  Sup.  Ct.  Rep.  230; 
United  States  v.  Ross,  230  U.  S.  530,  ante, 
422,  86  Sup.  Ct.  Rep.  198. 

Moreover,  the  President's  power  to  put 
appellee  on  leave  without  pay  can  hardly 
be  questioned;  for,  although  U.  S.  Rev. 
SUt.  I  1265,  Comp.  SUt  1913,  §  1856,  does 
not  specifically  grant  him  this  power,  it 
does  not  deny  him  such  power. 

Shurtleff  v.  United  States,  189  U.  S.  311- 
317,  47  L.  ed.  828-832,  23  Sup.  Ct  Rep. 
535. 

The  President  certainly  haa  the  right  to 
suspend  an  officer  temporarily  where  the 
exigencies  or  good  of  the  service  demand 
it,  or  to  furlough  him  for  a  definite  period 
for  the  same  reason,  or  to  remove  him 
entirely  from  office. 

Ex  parte  Hennen,  18  Pet.  259,  10  L.  ed 
162;  Blake  ▼.  United  States,  103  U.  S.  227, 
286,  26  L.  ed.  462,  465;  Mullan  v.  United 
States,  140  U.  8.  240,  35  L.  ed.  489,  11  Sup 
Ct.  Rep.  788;  Parson  v.  United  SUtcs,  167 
U.  S.  324,  42  L.  ed.  185,  17  Sup.  Ot.  Rep. 
880;  Shurtleff  v.  United  States,  189  U.  S. 
317,  47  L.  ed.  832,  23  Sup.  Ct.  Rep.  535; 
Hartigan  v.  United  SUtes,  196  U.  S.  169, 
49  L.  ed.  434,  25  Sup.  Ct.  Rep.  204 ;  United 
States  V.  Murray,  100  U.  S.  536,  537,  25  L. 
ed.  756. 

Mr.  Oeorire  A.  King  argued  the  cause, 
and,  with  Messrs.  William  B.  King  and 
William  E.  Harvey,  filed  a  brief  for  ap- 
pellee: 

Tlie  judgment  in  the  claimant's  favor  was 
clearly  the  only  one  possible  under  the 
provisions  of  the  Revised  Statutes. 

United  States  v.  Williamson,  28  Wall. 
411,  23  L.  ed.  89;  United  States  v.  Temple, 
105  U.  S.  97,  26  L.  ed.  967 ;  United  States 
T.  Graham,  110  U.  S.  219,  28  L.  ed.  126, 
8  Sup.  Ct.  Rep.  682;  United  States  v.  Wil- 
son, 144  U.  S.  24,  36  L.  ed.  832,  12  Sup.  Ct. 
Rep.  539;  United  States  t.  Shields,  153  U. 
S.  88,  91,  38  L.  ed.  645,  646,  14  Sup.  Ct 
Rep.  785;  Glavey  v.  United  States,  182  U. 
S.  595,  45  L.  ed.  1247,  21  Sup.  Ct.  Rep.  891 ; 
Goldsborough  ▼.  United  States,  Taney,  80, 
Fed.  Caa.  No.  6519;  Adams  ▼.  United  States, 
20  Ct  CL  117;  15  Ops.  Atty.  Gen.  442,  443; 
Rush  V.  United  States,  85  Ct  OL  233; 
54S 


Ohio  Nat.  Bank  t.  Hopkins,  8  App.  D.  C* 
146;  Willey's  Case,  11  Comp.  Dec  570. 

The  compensation  of  a  government  official 
is  by  law  attached  to  the  offiee,  and  cannot 
be  changed  by  executive  officera. 

C'nverae  v.  United  Statea,  21  How.  463, 
16  L.  ed.  192;  Dyer  t.  United  Statea,  20 
Ct  a.  166;  Geddea  t.  United  SUtes,  88 
Ct.  CI.  428;  Miller  v.  United  SUtea,  lOS 
Fed.  413;  Sherlock  t.  United  SUtea,  48  Ct 
a.  161. 

An  officer  la  entitled  to  hia  aalary,  not 
upon  any  theory  of  contract  or  quaai  con- 
tract, not  because  he  performs  certain  work 
or  ataya  at  a  certain  place,  but  becauae  he 
holda  the  office. 

United  Statea  T.  Williamaon,  28  Wall. 
411,  28  L.  ed.  89;  United  Statea  v.  Wicker- 
sham,  201  U.  S.  390,  50  L.  ed.  798,  26  Sup. 
Ct.  Rep.  469;  Allstaedt  v.  United  States,  3 
Ct.  a.  284;  Ware  v.  United  SUtes.  7  Ct 
CI.  565;  Sleigh  V.  United  States,  9  Ct.  CI. 
369;  Reinhard  v.  United  States,  10  Ct 
CI.  282;  Fraser  v.  United  SUtcs,  16  Ct 
CI.  507;  Palmer  v.  United  SUtes,  17  Ct 
CI.  230;  Lellmann  v.  United  SUtes.  37  Ct.  CI. 
128;  Corcoran  v.  United  SUtes.  38  Ct.  CI. 
341;  Steele  v.  United  States.  40  Ct  CI.  403; 
Stilling  T.  United  SUtes,  41  Ot.  CI.  61; 
Collins  V.  United  SUtes.  45  Ct.  CI.  63; 
Beuhring  v.  United  SUtes.  45  Ct.  CI.  404; 
People  ex  rel.  Satterlee  v.  Board  of  Police, 
75  N.  Y.  38;  Kehn  v.  SUte.  93  N.  Y.  291; 
Fitzsimmons  v.  Brooklyn.  102  N.  Y.  536,  65 
Am.  Rep.  835.  7  N.  E.  787;  13  Ops.  Atty. 
Gen.  103;  15  Ops.  Atty.  Gen.  175;  Willey's 
Case,  11  Comp.  Dec.  570;  Clancy's  Case.  20 
Comp.  Dec.  741. 

There  can  be  no  valid  waiver  of  official 
compensation    fixed   by   sUtute. 

Montague  v.  Massey.  76  Va.  813;  Purdy 
V.  Independence,  75  Iowa,  356.  39  N.  W. 
641;  Gallaher  v.  Lincoln.  63  Neb.  339.  88 
N.  W.  505;  Galpin  ▼.  Chicago,  269  111.  27, 
109  N.  E.  713. 

Mr.  Chief  Justice  White  delivered  the 
opinion  of  the  court: 

The  United  SUtes  appeals  from  a  judg- 
ment awarding  the  appellee  $325.  found  to 
be  due  him  under  Revised  SUtutes.  f  1265, 
Comp.  SUt  1918.  §  2104,  for  half  pay  as  a 
capUin  of  cavalry  of  fifteen  years'  service 
for  a  period  of  three  months  from  August 
1  to  October  81,  1907,  during  which  time  it 
was  found  he  was  abaent  on  leave.  The 
court  aUted  the  facte  aa  followa: 

The  claimant,  having  accepted  employ- 
ment with  a  commercial  company,  was 
granted  aix  montha*  leave  of  abeence,  to 
Uke  effect  January  1,  1007,  by  f  2,  Special 
Ordera,  No.  805,  War  Department,  dated 
December  28,  1906,  which  leave  waa  extend- 
ed for  four  montha,  to  Uke  effect  July  1» 

S40  U.  8. 


10  J  5. 


UNITED  STATES  v.  ANDREWS. 


92-06 


1007,  and  to  expire  October  31,  1007,  by  f 
20,  Special  Orders,  War  Department,  dated 
June  17,  1007. 

'^hile  the  claimant  waa  enjoying  the  ex- 
tension of  hia  leave  of  abaence,  the  Adju- 
tant General  of  the  United  [M]  SUtea 
Army,  on  July  31,  1007,  aent  him  the  fol- 
lowing telegram: 

"  'By  direction  of  the  President,  although 
your  leave  ia  not  revoked,  your  abaence 
from  this  date  will  be  without  pay.' 

'Oils  leave  without  pay  from  August  1, 
1007,  to  October  31,  1007,  was  not  request- 
ed by  the  claimant,  but  he  did  not  file  a 
protest  against  such  action  nor  relinquish 
his  leave  and  return  to  duty. 

'^he  claimant  was  absent  from  duty  from 
January  1, 1007,  to  October  31, 1907.  From 
August  1,  1007,  to  October  31,  1007,  he  re- 
ceived no  pay.  His  half  pay  for  said  period 
was  $325."    [40  Ct.  CI.  301.] 

It  is  apparent  from  the  authorltiea  oited 
in  the  per  curiam  opinion  of  the  court  be- 
low (Glavey  v.  United  States,  182  U.  S.  505, 
45  L.  ed.  1247,  21  Sup.  a.  Rep.  801;  Whit- 
ing V.  United  States,  35  Ct.  CI.  201,  301; 
Dyer  v.  United  States,  20  a.  Q.  166)  that 
the  allowed  recovery  waa  based  upon  the 
conclusion  that  the  half  pay  during  the 
leave  of  absence  was  expressly  sanctioned 
by  law  (Rev.  Stat.  §  1265),  and  hence  any 
condition  conflicting  with  such  statutory 
right  was  void,  and  that  the  officer  being 
entitled  to  rely  upon  the  statute,  no  estop- 
pel against  him  could  be  implied  because  of 
his  having  acted  upon  the  leave,  albeit  it 
contained  a  condition  in  conflict  with  the 
rights  conferred  by  the  statute.  To  test 
the  merits  of  these  conclusions  will  dispose 
of  the  entire  case,  since  all  the  contentions 
of  the  government  are  embraced  in  three 
propositions:  1,  the  aaserted  existence  of 
authority  to  grant  the  leave,  conditioned  on 
its  being  without  pay,  notwithstanding  the 
statute;  2,  even  if  such  power  did  not  exist, 
the  binding  effect  of  the  condition  upon  the 
officer  who  accepted  the  leave  which  was 
subject  to  it;  and  3,  in  any  event,  the  im- 
possibility of  separating  the  grant  of  leave 
from  the  condition  upon  which  the  leave 
was  based,  thus,  under  the  hypothesis  of  il- 
legality, rendering  the  grant  void,  and  caus- 
ing the  absence  [94]  from  duty  which  was 
enjoyed  under  the  apparent  sanction  of  the 
grant  to  be  an  absence  without  leave,  for 
which,  under  the  statute,  no  right  to  -pay 
exiated.  It  is  manifest  that  these  conten- 
tions assume,  aa  did  the  conclusions  of  the 
court  below,  that  the  telegram  stated  in  the 
findings  operated  to  grant  a  new  leave  for 
the  three  months  therein  specified,  subject 
to  the  condition  that  it  should  be  without 
pay,  and  in  separately  testing  the  proposi- 
60  h,  ed. 


tiona  we  shall  treat  the  telegraphic  order 
aa  having  that  significance. 

1.  Aa  in  view  of  the  plain  text  of  Revised 
Statutea,  f  1265,  there  is  no  room  for  dis- 
puting that  the  right  to  half  pay  during  the 
period  of  the  leave  in  question  waa  conferred 
by  the  statute,  there  is  and  can  be  no  dispute 
that,  tested  by  the  statute  alone,  the  court 
below  did  not  err  in  allowing  the  claim  for 
auch  half  pay.  But  the  contention  is  that 
error  was  committed  because  the  conferring 
of  the  right  to  pay  by  the  statute  was  not 
exclusive,  and  therefore  did  not  deprive  of 
the  authority  aa  an  incident  to  the  power 
to  grant  the  leave  to  affix  the  condition  that 
the  leave  should  be  without  pay  notwith- 
standing the  statute.  It  is  unnecessary, 
however,  to  stop  to  point  out  the  unsound- 
ness of  this  proposition,  since  the  error  upon 
which  it  rests  is  authoritatively  demonstrat- 
ed by  previoua  decisions  which  substantially 
leave  the  proposition  not  open  for  discus* 
sion.  United  States  v.  Williamson,  23  Wall 
411,  416,  23  L.  ed.  80,  00;  United  SUtes  v. 
Wilson,  144  U.  S.  24,  36  L.  ed.  332,  12  Sup. 
Ct.  Rep.  530;  United  States  v.  Shields,  153 
U.  S.  88,  01,  38  L.  ed.  645,  646,  14  Sup. 
Ct.  Rep.  735;  Glavey  v.  United  States,  182 
U.  S.  505,  45  L.  ed.  1247,  21  Sup.  Ct  Rep. 
801.  Nor,  in  contemplation  of  the  caaea 
which  we  have  just  cited,  and  additionally, 
in  view  of  the  provision  of  Revised  Stat- 
utes, i  1220,  Comp.  Stat.  1013,  §  2001,  that 
"no  officer  in  the  military  or  naval  service 
shall  in  time  of  peace  be  dismissed  from 
service  except  upon  and  in  pursuance  of  the 
sentence  of  a  court-martial  to  that  effect,  or 
in  commutation  thereof,"  is  there  any  neces- 
sity to  point  out  the  want  of  application  of 
the  authorities  dealing  with  the  power  to 
dismiss  civil  [95]  officers  which  are  cited  as 
a  basis  for  the  proposition  that  a  like  power 
applies  to  Army  officers,  and  therefore,  aa 
there  waa  authority  to  dismiss,  the  lesser 
right  of  granting  the  leave  without  pay 
necessarily  obtained.  So,  also,  it  is  un- 
neceesary  to  enter  into  any  detailed  analysis 
of  the  decision  in  Hartigan  v.  United  States, 
106  U.  S.  160,  49  L.  ed.  434,  25  Sup.  Ct. 
Rep.  204,  since  that  case  concerned  the 
power  to  remove  a  cadet  at  the  Military 
Academy,  and  the  recognition  of  the  right 
to  exercise  that  authority  was  in  express 
terms  baaed  upon  the  view  that  although 
in  a  sense  a  part  of  the  Army,  cadets  at 
the  Military  Academy  were  not  officers 
within  the  intendment  of  Revised  Statutes, 
S  1220,  and  indeed  the  opinion  in  the  Harti- 
gan Caae  in  aubstance  refutes  the  extreme 
contention  as  to  power  which  ia  now  sought 
to  be  sustained.  - 

2.  The  contention  as  to  the  estoppel  re- 
sulting from  the  failure  to  protest  against 
the  condition  affixed  to  the  leave,  and  the 

54S 


96-97 


SUPREME  CX)URT  OF  THE  UNITED  STATES 


Ooi.  IkBM, 


binding  force  of  such  condition,  even  if  il- 
legal, resulting  from  an  acceptance  of  the 
leave  containing  it,  it  by  necessary  implica- 
tion foreclosed  by  all  the  cases  previously 
cited,  and  in  fact  was  in  express  terms  con- 
sidered and  held  to  be  without  merit  in 
Glavey  v.  United  States,  182  U.  S.  595,  45 
L.  ed.  1247,  21  Sup.  Ct.  Rep.  891.  Because 
that  case  concerned  an  illegal  condition  at- 
tached to  the  performance  of  the  duties  of 
an  office,  and  this  involves  an  illegal  con- 
dition attached  to  a  grant  of  leave,  affords 
no  ground  for  distinction  between  that  case 
and  this.  The  basis  of  the  ruling  in  the 
Glavey  Case  was  the  right  of  the  official  to 
rely  upon  the  provisions  of  the  statute,  and 
the  resulting  want  of  power  to  apply  a 
principle  of  estoppel.  And  as  here  there 
was  express  statutory  authority  for  the  half 
pay  during  the  leave,  the  reason  in  the  Gla- 
vey Case  is  controlling,  and  the  distinction 
relied  upon  involves  no  difference  justifying 
taking  this  case  out  of  the  principle  settled 
in  the  Glavey  case.  As  the  statute  con- 
ferred the  right  to  the  half  pay  during  the 
leave,  it  necessarily  follows  that  the  ex- 
clusion of  executive  authority  over  that  sub- 
ject which  resulted  extended  to  [06]  and 
was  coterminous  with  the  power  which  the 
statute  exerted. 

3.  The  contention  that  even  if  the  con- 
dition which  was  attached  to  the  leave  be 
treated  .is  illegal,  and  the  acceptance  of  the 
leave  containing  it  be  decided  not  to  have 
operated  an  estoppel,  nevertheleas,  under 
such  circumstances,  the  leave  mudt  be  treat- 
ed as  void,  and  the  absence  based  on  it  be 
held  to  have  been  one  without  leave,  for 
which  no  pay  could  be  allowed  under  the 
statute,  is  self -contradictory,  and  besides,  in 
its  essence,  must  rest  upon  the  assumption 
that  there  was  power  to  affix  the  condition, 
the  terms  of  the  statute  to  the  contrary 
notwithstanding.  The  contention,  therefore, 
is  in  substance  foreclosed  by  Glavey  v. 
United  States,  supra,  and  the  decided  cases 
to  which  we  have  previously  referred.  How 
completely  this  is  the  case  will  be  demon- 
strated by  observing  that  the  decision  in 
the  Glavey  Case  wu  expressly  based  on  the 
ground  that  public  policy  'forbade  giving 
^ny  effect  whatever  to  an  attempt  to  de- 
prive by  unauthorized  agreement  made  with 
an  official,  express  or  implied,  under  the 
guise  of  a  condition  or  otherwise,  of  the 
right  to  the  payigiven  by  the  statute.  And, 
of  course,  the  contention  now  made  that 
the  absence  with  leave,  which  carried  pay 
under  the  statute,  was  converted  into  an 
absence  without  leave,  carrying  no  pay,  in 
consequence  of  an  unauthorized  attempt  to 
subject  the  granted  leave  to  an  illegal  pro- 
vision that  it  should  be  without  pay,  is  ab- , 
solutely  in  conflict  with  the  previous  cases 
544 


and  the  rule  of  public  policy  upon  which 
they  were  based.  In  fact,  the  contention 
but  in  a  changed  form  asserta  the  applica- 
tion  of  estoppel,  which,  at  we  have  seen, 
was  expressly  adversely  disposed  of  in  the 
previous  cases. 
Affirmed* 

Mr.  Justice  McReynoldt  took  no  part  in 
the  consideration  and  dedtion  of  this 


[07]    FRAKOIS   SHERWOOD  MALE,   at 
Trustee  for  Gilbert  W.  Ohapin,  A[^it., 

V. 

ATCHISON,     TOPEKA,    ft     SANTA    FE 
RAILWAY  COMPANY. 

(See  S.  C.  Reporter's  ed.  97-102.) 

Appeal  «  from  district  oourt  —  moot 
controversy. 

1.  An  appeal  from  a  Federal  district 
court  to  the  Supreme  Court,  presenting  tti% 
sole  question  of  the  jurisdiction  below,  wiU 
not  be  dismissed  on  the  ground  tiiat  since 
the  dismissal  of  the  bill  by  the  court  be- 
low for  want  of  jurisdiction  the  controversy 
between  the  parties  has  become  a  moot  one 
by  reason  of  a  judgment  of  a  state  court 
dismissing,  upon  the  merits,  a  suit  between 
the  same  parties  upon  the  tame  alleged 
cause  of  action. 

[For  other  cases,  see  Appeal  and  Error,  VII. 
1,  8m.   in  Diffest  Sup.  Ct.  1908.] 

Appeal  «  from  district  court  «  juris- 
diction below. 

2.  Questions  of  lurisdiction  of  the  Fed- 
eral  district  court  depending  upon  contro- 
versies as  to  the  district  of  residence,  where 
the  statutory  rights  in  that  regard  have  not 
been  waived,  are,  when  decided  below,  ques- 
tions of  Federal  jurisdiction  susceptible  of 
being  brought  to  the  Supreme  Court  under 
the  provisions  of  the  Judicial  Code,  §  238, 
by  direct  appeal. 

[For  other  cases,  see  Appeal  and  Error,  895- 
914,  in  Dlffest  Sap.  Ct.  1008.] 

Federal   courts  «   proper   district   for 
suit  «  action  under  Federal  law. 

3.  A  suit  to  enforce  the  alleged  liabil- 
ity in  equity  of  a  Kansas  corporation  up- 
on the  bonds  of  a  railway  company,  created 
by  an  act  of  Conn-ess,  involves  a  question 
inherently  Federiu  in  its  nature,  so  that, 
under  the  Judicial  Code,  §  51,  it  may  not, 
without  the  consent  of  the  Kansas  corpora- 
tion, be  brought  in  any  other  Federal  dis- 
trict than  that  of  its  residence. 

[For  otber  cases,  see  Courts.  028-078,  In  Di- 
gest Sup.  Ct.  1008.] 


Note. — On  direct  review  in  Federal  Su- 
preme Court  of  judgments  of  district  or 
circuit  oourta— see  notes  to  Qwin  t.  United 
States,  46  L.  ed.  U.  S.  741;  and  B.  Altman 
k  Co.  V.  United  SUtet,  56  L.  ed.  U.  S.  804. 

At  to  proper  Federal  district  for  suit— see 
note  to  Roberta  ▼.  Lewis,  86  h>  ed.  U.  S.  579. 

S40  U.  S. 


1915. 


MALE  y.  ATCHISON,  T.  ft  S.  F.  R.  Ca 


Oa-101 


[No.  220.] 

Argued  January  24,  1916.    Decided  Febru- 
ary 21,  1916. 

APPEAL  from  the  District  Court  of  the 
United  SUtes  for  the  Southern  Dis- 
trict of  New  York  to  review  a  decree  which 
dismissed,  for  want  of  jurisdiction,  the  bill 
in  a  suit  to  enforce  the  liability  in  equity 
of  a  Kansas  corporation  upon  the  bonds  of 
a  railway  company  incorporated  luder  an 
act  of  Congress.    Affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Wllliain  G.  Cooke  argued  the  cause 
and  filed  a  brief  for  appellant. 

Mr.  Walker  D.  Hines  argued  the  cause 
and  filed  a  brief  for  appellee. 

Mr.  Chief  Justice  White  delivered  the 
opinion  of  the  court: 

On  this  direct  appeal  a  reversal  is  sought 
of  a  decree  below  which  dismissed  the  bill 
for  want  of  jurisdiction.  There  is  a  mo- 
tion to  dismiss  on  the  ground  that  "the 
questions  involved  upon  this  appeal  are 
moot  questions  .  .  .  [00]  for  the  rea- 
son that,  subsequent  to  the  dismissal  of  the 
bill  herein  by  the  lower  court,  the  appellant, 
as  plaintiff,  instituted  in  the  supreme  court 
of  the  state  of  New  York,  county  of  New 
York,  an  action  upon  the  same  alleged 
cause  of  action  against  the  same  defendants, 
and  that  such  action  in  the  supreme  court 
of  the  state  of  New  York  was  heard  and 
determined,  and  that  a  final  judgment  upon 
the  merits  therein  was  rendered,  dismissing 
the  complaint  filed  in  said  action  as  against 
this  appellee."  But  as  our  power  to  review 
is  limited  to  the  question  of  jurisdiction 
alone,  and  as  the  ground  of  the  motion  ob- 
viously involves  the  defense  of  "the  thing 
adjudged,"  going  to  the  merits,  the  motion 
to  dismiss  is  overruled,  and  we  come  to  con- 
sider the  question  of  the  jurisdiction  of  the 
court  below;  that  is,  whether,  as  a  Federal 
court,  it  had  power  to  entertain  the  cause. 
Louisville  Trust  Co.  v.  Knott,  191  U.  S.  233, 
48  L.  ed.  161,  24  Sup.  Ct.  Rep.  110;  Fore 
River  Shipbuilding  Co.  v.  Hagg,  219  U.  S. 
175,  55  L  ed.  163,  31  Sup.  Ct.  Rep.  185; 
Famigia  v.  Philadelphia  &  R.  R.  Co.  233  U. 
8.  352,  58  L.  ed.  906,  34  Sup.  Ct.  Rep.  501. 

The  bill  alleged  that  the  complainant, 
Male,  who  sued  as  the  trustee  of  Gilbert  W. 
Chapin,  was  a  citizen  of  the  state  of  New 
York  and  an  inhabitant  and  resident  of  the 
southern  district  thereof.  The  defendants 
were  the  Atlantic  &  Pacific  Railroad  Com- 
pany, a  corporation  created  by  an  act  of 
Congress,  the  Atchison,  Topeka,  k  Santa  Fe 
Railroad  Company^  a  corporation  organised 
60  L.  ed. 


imder  an  act  of  the  legislature  of  the  terri- 
tory of  Kansas,  the  Atchison,  Topeka,  & 
Santa  Fe  Railway  Company,  a  corporation 
organized  under  the  laws  of  the  state  of 
Kansas,  and  the  Boston  Safe  Deposit  & 
Trust  Company,  a  corporation  organized 
under  the  laws  of  the  state  of  Massachu- 
setts. We  do  not  stop  to  summarize  the 
averments  of  the  bill  in  order  to  make 
clear  the  nature  of  the  relief  sought  because 
we  accept  as  adequate  for  the  purpose  of 
the  question  before  us  the  statement  made 
on  that  subject  in  the  printed  argument  filed 
on  behalf  of  [100]  the  appellant  as  follows: 
''The  relief  prayed  for  is  judgment  for 
$120,000  and  interest  upon  certain  income 
bonds  issued  by  the  Atlantic  &  Pacific  Rail- 
road Company  on  the  1st  day  of  October, 
1880,  and  maturing  October  1st,  1910,  and 
for  an  adjudication  that  the  Atchison,  To- 
peka, k  Santa  Fe  Railway  Company  (the 
present  appellee)  is  liable  in  equity  for 
the  amount  of  such  judgment  by  reason  of  the 
matters  set  forth  in  the  bill  of  complaint." 
As  further  stated  in  the  argument  for  the 
appellant,  the  bill  alleged  that  the  Atlan- 
tic &  Pacific  Railroad  Company  "is  practi- 
cally out  of  existence,  and  has  not  been  nor 
can  it  be,  served  with  process,"  and  that 
the  Atchison,  Topeka,  ft  Santa  Fe  Railroad 
Company  and  the  Boston  Safe  Deposit  & 
Trust  Company  were  not  served  with  proc- 
ess, and  are  not  deemed  to  be  necessary 
parties  to  the  cause,  and  may  be  put  out 
of  view.  The  Atchison,  Topeka,  &  Santa 
Fe  Railway  Company,  the  only  other  de- 
fendant (the  appellee)  was  served  through 
one  of  its  officers  in  the  city  of  New  York. 
It  thereupon  appeared  specially  and  "for  the 
single  and  sole  purpose  of  making  a  motion 
to  set  aside  the  service  of  the  subpoena  and 
dismiss  the  bill  of  complaint  as  to  it  for 
want  of  jurisdiction  over  the  person  of  said 
defendant."  And  subsequently  it  moved  to 
dismiss  on  two  grounds:  1.  That  as  its 
residence  was  in  Kansas,  it  could  not  be 
sued  outside  of  the  district  of  which  it  was 
a  resident  without  its  consent;  and  that  as 
Male,  the  complainant,  was  only  colorably 
joined  as  a  complainant,  the  real  party  be- 
ing Chapin,  for  whom  Male  assumed  to  act 
as  trustee,  and  who  was  a  citizen  and  resi- 
dent of  Connecticut,  there  was  no  jurisdic- 
tion over  the  cause,  as  the  suit  was  brouf^ht 
in  the  district  of  the  residence  of  neither 
of  the  real  parties;  and,  2,  tjiat  as  the  com- 
plainant sought  to  enforce  a  liability  on  the 
bonds  of  the  Atlantic  &  Pacific  Railroad 
Company,  a  corporation  created  by  an  act 
of  Congress,  involving  an  inherently  Federal 
question,  there  was  no  jurisdiction  in  the 
court  over  the  [101]  defendant,  because, 
Under  such  circumstances,  it  was  entitled  to 
be  sued  in  the  court  of  the  district  of  its 
35  545 


101-103 


SUPREMB  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Tebm^ 


residence,  and  could  not  without  its  consent 
be  impleaded  in  the  district  of  the  residence 
of  the  plaintiff,  even  if  Male  was  treated 
as  the  real  plaintiff,  and  entitled  otherwise 
to  sue  in  the  southern  district  of  New  York. 
As  stated  in  the  certificate  of  the  court  be- 
low, the  judgment  of  dismissal  for  want  of 
Jurisdiction  was  based  upon  both  of  the 
grounds;  that  is,  the  want  of  authority  to 
sue  in  the  southern  district  of  New  York 
because  that  was  the  district  of  the  resi- 
dence of  neither  of  the  parties,  and  because, 
owing  to  the  Federal  question,  the  defendant 
was  entitled  to  be  sued  in  the  district  of 
its  residence. 

It  is  not  disputable  that,  in  so  far  as  the 
contentions  as  to  jurisdiction  depended  alone 
upon  the  right  to  sue  because  of  the  dis- 
trict in  which  the  parties  resided,  they  did 
not  present  questions  of  inherent  Federal 
jurisdiction.  We  say  this  because  contro- 
versies as  to  such  subjects  concern  a  per- 
sonal privilege  susceptible  of  being  waived, 
which  would  not  be  the  case  if  they  involved 
contentions  which  were  intrinsically  and 
necessarily  Federal.  St.  Louis  ft  S.  F.  R. 
Co.  V.  McBride,  141  U.  S.  127,  35  L.  ed.  659, 
11  Sup.  Ct.  Rep.  982;  Ex  parte  Wisner,  203 
U.  S.  449,  51  L.  ed.  264,  27  Sup.  Ct.  Rep. 
150:  Re  Moore,  209  U.  S.  490,  52  L.  ed.  904, 
28  Sup.  Ct.  Rep.  585,  706,  14  Ann.  Cas. 
1164;  Western  Loan  &  Sav.  Co.  v.  Butte  & 
B.  Min.  Co.  210  U.  S.  368,  62  L.  ed.  1101, 

28  Sup.  Ct.  Rep.  720.  But  while  this  is  the 
case,  it  is  yet  also  true  that  questions  of 
jurisdiction  depending  upon  controversies  as 
to  the  district  of  residence,  where  the  statu- 
tory rights  in  that  regard  have  not  been 
waived,  when  decided  below,  are  questions 
of  Federal  jurisdiction,  susceptible  of  being 
brought  here  by  direct  appeal  under  the 
provisions  of  §  238  of  the  Judicial  Code  [36 
SUt.  at  L.  1157,  chap.  231,  Comp.  Stat. 
1913,  §  1215].  Davidson  Bros.  Marble  Co. 
V.  United  SUter ,  213  U.  S.  10,  53  L.  ed.  675, 

29  Sup.  Ct  Rep.  324;  United  States  v.  Con- 
gress Constr.  Co.  222  U.  S.  199,  56  L.  ed. 
163,  3*2  Sup.  Ct.  Rep.  44. 

Our  power  to  review  thus  being  settled, 
the  only  question  is,  Did  the  court  err  in 
holding  that,  as  a  Federal  court,  within  the 
meaning  of  the  statute,  it  had  no  authority 
under  the  circumstances  to  entertain  the 
cause  T  In  [102]  solving  this  issue,  without 
expressing  any  opinion  as  to  the  want  of 
jurisdiction  based  upon  the  contention  that 
Male,  the  complainant,  had  no  real,  but  only 
a  colorable  and  fictitious^  interest,  and  hence 
that*  the  suit  was  brought  neither  in  the 
district  of  the  residence  of  the  complainant, 
nor  that  of  the  defendant,  and  confining  our 
attention  to  the  ruling  that  there  was  a 
want  of  power  to  entertain  the  cause  in 
•46 


any  other  than  the  district  of  the  residenca- 
of  the  defendant,  because  of  the  inherently 
Federal  question  presented,  we  think  that 
the  refusal  to  take  jurisdiction  was  clearly- 
right  and  should  be  afi&rmed.  Undoubtedly 
the  asserted  right  to  a  judgment  on  the- 
bonds  of  the  Atlantic  A  Pacific  Railroad 
Company,  a  corporation  created  by  an  act 
of  Congress,  involved  an  inherently  Federal 
question.  Osbom  v.  Bank  of  United  States^ 
9  Wheat.  738,  6  L.  ed.  204;  Washington  & 
I.  R.  Co.  V.  C<£ur  d'Alene  R.  A  Nav.  Co.  160^ 
U.  S.  77,  40  L.  ed.  346,  10  Sup.  Ct.  Rep.  231; 
Re  Dunn,.  212  U.  S.  374,  53  L.  ed.  558,  2» 
Sup.  Ct.  Rep.  299;  Texas  &  P.  R.  Co.  v. 
Hill,  237  U.  S.  208,  59  L.  ed.  918,  35  Sup. 
Ct.  Rep.  575:  This  being  true,  it  is  also  in- 
disputable that  the  defendant  was  entitled 
to  be  sued  in  the  district  of  its  residence^ 
and  was  not,  without  its  consent,  liable  ta 
be  sued  within  the  district  of  the  residence 
of  the  complainant.  Macon  Grocery  Co.  v. 
Atlantic  Coast  Line  R.  Co.  215  U.  S.  501, 
54  L.  ed.  300,  30  Sup.  Ct.  Rep.  184;  §  51^ 
Judicial  Code  [36  SUt.  at  L.  1101,  chap. 
231,  Comp.  Stat.  1913,  §  1033]. 

As  it  follows  that  no  error  was  committed 
by  the  court  below  in  holding  that  it  waa 
without  power  to  exercise  jurisdiction  of 
the  cause,  its  decree  must  be  and  it  is  af- 
firmed. 


[108]  JOHN  R.  STANTON,  Appt, 

V. 

BALTIC  MINING  COMPANY  et  aL 
(See  S.  C.  Reporter's  ed.  103-114.) 

Injunction  —  against     illegal     tax  ^ 

8tockiiolder*8  suit. 

1.  The  maintenance  by  a  stockholder  of 

NOTB.— On  injunction  to  restrain  the  col- 
lection of  illegal  taxes — see  notes  to  Odlin 
V.  Woodruff,  22  L.RJI.  699;  Dows  v.  Chi- 
cago, 20  L.  ed.  U.  S.  65;  and  Ogden  City 
V.  Armstrong,  42  L.  ed.  U.  S.  445. 

On  the  constitutionality  of  income  taxea 
— see  notes  to  Alderman  v.  Wells,  27  L.ILA. 
(N.S.)  864;  State  ex  reL  Bolens  v.  Frear^ 
L.RJL.1915B,  569. 

As  to  what  constitutes  due  process  of  law^ 
generally — see  notes  to  People  v.  O'Brien, 
2  L.RJI.  255;  Kuntz  v.  Sumption,  2  L.RJL 
655;  Re  Gannon,  5  L.RA..  859;  Ulman  v. 
Baltimore,  11  L.ILA.  224;  Oilman  v.  Tucker, 
13  h.RJL,  304;  Pearson  v.  Yewdall,  24  L. 
ed.  U.  S.  436;  Wilson  v.  North  Carolina, 
42  L.  ed.  U.  S.  865. 

As  to  the  validity  of  class  l^dslation, 
generally — see  notes  to  State  v.  Goodwill, 
6  L.RjiL.  621;  and  State  T.  Loomis,  21 
L.R.A.  789. 

As  to  constitutional  equality  of  privi- 
leges, immunities,  and  protection,  generally 
—see  note  to  Louisville  Safety  Vault  ft  T. 
Co.  T.  Louisvilla  4  N.  R.  Co.  14  L.ILA.  579. 

140  U.  8» 


1915. 


STANTON  ▼.  BALTIC  MIN.  CO. 


a  Bait  to  restrain  a  corporation  from  volun- 
tarily complying  with  the  income  tax  pro- 
visions of  the  tariff  act  of  October  3,  1913 
(38  Stat,  at  L.  166,  chap.  16,  Comp.  Stat. 
1913,  §§  6319-6336),  upon  the  grounds 
of  the  repugnancy  of  the  statute  to  the 
FlBderal  Constitution,  of  the  peeuliar  rela- 
tion of  the  corporation  to  the  stockhold- 
ers, and  their  particular  interests  result- 
ing from  many  of  the  administrative 
provisions  of  the  assailed  act,  of  the  con- 
fusion, wrong,  and  multiplicity  of  suits,  and 
the  absence  of  all  means  of  redress  which 
will  result  if  the  corporation  pays  the  tax 
and  complies  with  the  act  in  other  respects 
without  protest,  as  it  is  all^^  it  is  its 
intention  to  do,  is  not  forbidden  by  the  pro- 
hibition of  U.  S.  Rev.  SUt.  S  3224,  Comp. 
Stat.  1913,  §  5947,  against  enjoining  the  en- 
forcement of  taxes. 

I  For  other  cartes,  nee  Injunction,  I.  k.  In 
Dl^Ht  Sup.  Ct.  1908.] 

Constitutional  law  —  due  process  of 
law  —  discrimination  —  Income  tax 
on  mining  companies. 

2.  Mining  companies  and  their  stock- 
holders are  not  denied  the  equal  protection 
of  the  laws  nor  deprived  of  their  property 
without  due  process  of  law,  contrary  to  U. 
S.  Const.,  5th  Amend.,  by  the  income  tax 
provisions  of  the  tariff  act  of  October  3, 
1913  (38  Stat,  at  L.  166,  chap.  16),  under 
which  the  deduction  permitted  for  depre- 
ciation arising  from  depletion  of  ore  de- 
posits is  limited  to  5  per  cent  of  the  gross 
value  at  the  mine  of  the  output  during  the 
year,  while  other  individuals  and  corpora- 
lions  have  the  right  to  deduct  a  fair  and 
reasonable  percentage  for  losses  and  depre- 
ciation. 

(For  other  eases,  see  Constitutional  Law, 
IV.  b,  6;  IV.  a,  4,  in  Digest  Sap.  Ct.  1908.] 

Constitutional  law  —  due  process  of 
law  —  income  tax  —  discrimination. 

3.  Allowing  individuals  to  deduct  from 
their  gross  income  dividends  paid  them  by 
corporations  whose  incomes  are  taxed,  and 
not  giving  such  right  of  deduction  to  cor- 
porations, as  is  done  by  the  income  tax  pro- 
visions of  the  tariff  act  of  October  8,  1913 
(38  Stat,  at  L.  166,  chap.  16),  does  not 
render  the  tax  wanting  in  due  process  of 
law. 

[For  other  ca%s,  see  Constitutional  Law, 
IV.  b.  6.  in  Difirest  Sup.  Ct.  1908.] 

Constitutional  law  —  discrimination  — 
due  process  of  law  —  income  tax. 

4.  No  unconstitutional  discrimination 
results  from  the  progressive  rate  feature 
of  the  income  tax  imposed  by  the  act  of 
October  3,  1913  (38  SUt.  at  L  166,  chap. 
16),  because  the  surtax  applies  to  individ- 
ual incomes  only,  not  to  corporate  ones. 
[For    other    cases,    see    Con»tftntional    Law, 

IV.  b,  6;  IV.  b,  4,  in  Digest  Sup.  Ct  1908.] 

Constitutional  law  —  discrimination^— 
due  process  of  law  —  Income  tax*— 
exemptions. 

5.  Corporations  are  not  unconstitution- 
ally discriminated  against  because  of  the 


at  L.  166,  chap.  16),  make  of  individual 

incomes  below  $4,000. 

[For    otiier    cases,    see    Constitutional    Law, 
IV.  b,  6;  IV.  b,  4,  In  Digest  Sup.  Ct.  1908. J 

Internal  revenue  —  income  tax  —  ex- 
emptions. 

6.  Labor,  agricultural,  or  horticultural 

organizations,  mutual  savings  banks,  etc.» 

could  be  excepted  from  the  operation  of  the 

income  tax  provisions  of  the  tariff  act  of 

October  8,  1918   (38  Stat,  at  L.  166,  chap. 

16),  without  rendering  the  tax  repugnant 

to  the  Federal  Constitution. 

[For    other   cases,    see    Internal    Revenue,    I. 
b;  III.  b,  in  Digest  Sup.  Ct.  1908.] 

Internal  revenue  —  power  of  Congress 
—  Income  tax. 

7.  The  whole  purpose  of  U.  8.  Const., 
16th  Amend.,  giving  Congress  the  power  **to 
lay  and  collect  taxes  on  incomes,  from  what- 
ever source  derived,  without  apportionment 
among  the  several  states,  and  without  re- 
gard to  any  census  or  enumeration,"  was 
to  exclude  the  source  from  which  a  taxed 
income  was  derived  as  the  criterion  by 
which  to  determine  the  applicability  of  the 
constitutional  requirement  as  to  apportion- 
ment of  direct  taxes. 

[For    other    cases,    see    Internal    Revenue,    L 
b,  in  Digest  Sup.  Ct.  1908.] 

Internal  revenue  —  income  tax  —  min- 
ing corporations  —  direct  tax. 

8.  The  taxation  of  mining  companies 
cannot  be  taken  out  of  the  rule  established 
by  U.  S.  Const.,  16th  Amend.,  excluding  the 
source  from  which  a  taxed  income  is  derived 
as  the  criterion  by  which  to  determine  the 
applicability  of  the  constitutional  require* 
ment  as  to  apportionment  of  direct  taxes, 
because  an  inadequate  allowance  by  way 
of  deduction  is  made  by  the  income  tax  pro- 
visions of  the  tariff  act  of  October  3,  1913 
(38  Stat,  at  L.  166,  chap.  16),  for  the  ex- 
haustion of  the  ore  body. 

[For    other   cases,    see   Internal    Revenue.    L 
b.  in  Digest  Sup.  Ct.  1908.] 

Internal  revenue  —  income  tax  —  min- 
ing corporations  —  direct  tax. 

9.  Independently  of  the  operation  of  U. 
8.  Const.,  16th  Amend.,  the  tax  imposed 
by  the  income  tax  section  of  the  tariff  act 
of  October  8,  1913  (38  SUt.  at  L.  166,  chap. 
16),  upon  the  product  of  the  working  of  a 
corporate  mine,  is  not  a  direct  tax  on  prop- 
erty by  reason  of  its  ownership  because  ade- 
quate allowance  may  not  1^  made  for  the 
exhaustion  of  the  ore  body  to  result  from 
working  the  mine. 

(For    other   cases,    see   Internal    Revenue,    I. 
b,  in  Digest  Sup.  Ct.  1908.] 


[No.  359.] 

Argued  October  14  and  16,  1916. 
February  21,  1916. 


Decided 


APPEAL  from  the  District  Court  of  the 
United  States  for  the  District  of 
Massachusetts  to  review  a  decree  dismiss- 
exwnption  which  the  Income  tax  provisions  I  "ig  the  bill  in  a  suit  by  a  stockholder  to 
of  the  tariff  act  of  October  8,  1913  (88  Stat,  restrain  the  corporation  from  voluntarily 
•0  L.  ed.  547 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


complying   with   the   Federal   income   tax. 
AflSrmed. 
The  facte  are  stated  in  the  opinion. 

Mr.  Charles  A.  Snow  argued  the  cauae 
and  filed  a  brief  for  appellant: 

Nothing  can  be  income  lulese  it  repre- 
sents a  gain  or  profit.  If  it  represents  a 
loss  of  capital  assets,  that  must  first  be 
restored  or  allowed  for,  before  any  income 
can  result. 

Stratton's  Independence  y.  Howbert,  231 
U.  S.  399,  415,  58  L.  ed.  285,  292,  34  Sup. 
Ct.  Rep.  136;  Seligman,  Income  Tax,  §  5; 
Black,  Income  Tax,  §§  32,  34;  Spooner  ▼. 
Phillips,  62  Conn.  62,  16  L.R.A.  461,  24 
Atl.  524;  bnited  States  ▼.  Nipissing  Mines 
Co.  202  Fed.  803;  Sargent  Land  Co.  v.  Von 
Baumbach,  207  Fed.  423,  L.R.A. — ,  — , 
134  C.  C.  A.  649,  219  Fed.  31;  Stevens  v. 
Hudson's  Bay  Co.  101  L.  T.  N.  S.  96,  25 
Times  L.  R.  709;  Secretary  of  State  v. 
Scoble  [1903]  A.  C.  299,  72  L.  J.  K.  B.  N.  S. 
617,  51  Week.  Rep.  675,  19  Times  L.  R. 
550,  89  L.  T.  N.  S.  1 ;  Foley  v.  Fletcher,  3 
Hurlst.  ft  N.  769,  28  L.  J.  Exch.  N.  S.  100, 
5  Jur.  N.  S.  342,  7  Week.  Rep.  141,  4  Mor. 
Min.  Rep.  130;  Merchants'  Ins.  Go.  v.  Mc- 
Cartney, 1  Low.  Dec.  447,  Fed.  Cas.  No. 
9,443;  Com  v.  Central  Transp.  Co.  145  Pa. 
89,  22  Atl.  209;  Gibson  v.  Cooke,  1  Met. 
75. 

Classification,  for  purposes  of  taxation, 
must  rest  on  some  reasonable  and  sufficient 
basis  of  distinction. 

Ohio  Tax  Cases,  232  U.  S.  576,  590,  58 
L.  ed.  737,  744,  34  Sup.  Ct.  Rep.  372; 
Brown-Forman  Co.  v.  Kentucky,  217  U.  S. 
563,  572,  54  L.  ed.  883,  886,  30  Sup.  Ct. 
Rep.  578 ;  Lindsley  v.  Natural  Carbonic  Gas 
Co.  220  U.  S.  61,  79,  55  L.  ed.  369,  377,  31 
Sup.  Ct.  Rep.  337,  Ann.  Cas.  1912C,  160; 
Toyota  v.  Hawaii,  226  U.  S.  184,  187,  57 
U  ed.  180,  33  Sup.  Ct.  Rep.  47;  Magoun 
▼.  Illinois  Trust  ft  Sav.  Bank,  170  U.  S. 
283,  293,  42  L.  ed.  1037,  1042,  18  Sup.  Ct. 
Rep.  594;  Bradley  v.  Richmond,  227  U.  S. 
477,  484,  57  L.  ed.  603,  606,  33  Sup.  Ct. 
Rep.  318;  Southwestern  Oil  Co.  ▼.  Texas, 
217  U.  S.  114,  121,  54  L.  ed.  688,  692,  30 
Sup.  Ct.  Rep.  496;  Schmidinger  v.  Chicago, 
226  U.  S.  578,  57  L.  ed.  364,  33  Sup.  Ct. 
Rep.  182,  Ann.  Oas.  1914B,  284;  Southern 
R  Co.  V.  Greene,  216  U.  S.  400,  417,  54  L. 
ed.  536,  541,  30  Sup.  Ct.  Rep.  287,  17  Ann. 
Cas.  1247;  German  Alliance  Ins.  Co.  v. 
Hale,  219  U.  S.  307,  318,  55  L.  ed.  229,  236, 
31  Sup.  Ct  Rep.  246;  Kidd,  D.  ft  P.  Co.  v. 
Musselman  Grocer  Co.  217  U.  S.  461,  473, 
M  L.  ed.  839,  845,  30  Sup.  Ct.  Rep.  606; 
Quong  Wing  ▼.  Kirkendall,  223  U.  S.  59, 
64,  65,  56  L.  ed.  350,  352,  353,  32  Sup.  Ct. 
Rep.  192;  Connolly  v.  Union  Sewer  Pipe 
Co.  184  U.  S.  540,  559,  46  L.  ed.  679,  689, ' 
A48 


22  Sup.  Ot.  Rep.  431;  Gulf,  C.  ft  8.  F.  R. 
Co.  ▼.  ElUs,  165  U.  S.  150,  157,  41  L.  ad. 
666,  669,  17  Sup.  Ct  Rep.  255. 

Subject  to  these  qualifications,  undoubt- 
edly the  legislature  has  a  wide  discretion, 
especially  in  taxation,  which  should  not  be 
abridged  by  the  courts. 

Flint  ▼.  Stone  Tracy  Co.  220  U.  8.  107, 
158,  159,  55  L.  ed.  389,  416,  31  Sup.  Ct 
Rep.  342,  Ann.  Cas.  1912B,  1312;  Bell's 
Gap  R.  Co.  V.  Pennsylvania,  134  U.  S.  232, 
237,  33  L.  ed.  892,  895,  10  Sup.  Ct.  Rep. 
533;  Southwestern  Oil  Co.  t.  Texas,  217 
U.  S.  114,  121,  127,  54  L.  ed.  688,  692,  694, 
30  Sup.  Ct.  Rep.  496;  Beers  v.  Glynn,  211 
U.  S.  477,  53  L.  ed.  290,  29  Sup.  Ct.  Rep. 
186;  New  York  ex  rel.  Hatch  ▼.  Reardon, 
204  U.  S.  152,  51  L.  ed.  415,  27  Sup.  Ot 
Rep.  188,  9  Ann.  Cas.  736;  Armour  Pack- 
ing Co.  ▼.  Lacy,  200  U.  S.  226,  50  L.  ed. 
451,  26  Sup.  Ct.  Rep.  282;  Savannah,  T.  ft  I. 
of  H.  R.  Co.  V.  Savannah,  198  U.  S.  392,  49 
L.  ed.  1097,  25  Sup.  Ct.  Rep.  690;  Co<^  v. 
MarshaU  County,  196  U.  S.  261,  49  L.  ed. 
471,  25  Sup.  Ct  Rep.  233;  Home  Ins.  Co.  v. 
New  York,  134  U.  S.  594,  33  L.  ed.  1025, 
10  Sup.  Ct.  Rep.  593;  American  Sugar  Rcf. 
Co.  V.  Louisiana,  179  U.  S.  89,  45  L.  ed. 
102,  21  Sup.  Ct.  Rep.  43. 

A  classification  is  unconstitutional  if 
there  is  no  fair  reason  for  the  law  that 
would  not  require,  with  equal  force,  its  ex- 
tension to  others  whom  it  leaves  untouched. 

Barrett  v.  Indiana,  229  U.  S.  26,  29,  30, 
57  L.  ed.  1050,  1052,  1053,  33  Sup.  Ct  Rep. 
692;  Watson  ▼.  Maryland,  218  U.  S.  173, 
179,  54  L.  ed.  987,  990,  30  Sup.  Ct.  Rep. 
644;  Williams  v.  Arkansas,  217  U.  S.  79, 
90,  54  L.  ed.  673,  677,  30  Sup.  Ct.  Rep.  493, 
18  Ann.  Cas.  865 ;  Missouri,  K.  ft  T.  R.  Co. 
V.  May,  194  U.  S.  267,  269,  48  L.  ed.  971, 
972,  24  Sup.  Ct.  Rep.  638;  International 
Harvester  Co.  ▼.  Missouri,  234  U.  S.  199, 
213,  58  L.  ed.  1276,  1283,  34  Sup.  Ct.  Rep. 
859. 

A  classification  does  not  offend  because 
not  made  with  mathematical  nicety,  or  be- 
cause, in  practice,  it  results  in  some  in- 
equality. 

Lindsley  v.  Natural  Oarbonic  Gas  Co.  220 
U.  S.  61,  78,  55  L.  ed.  369,  377,  31  Sup.  Ct 
Rep.  337,  Ann.  Cas.  1912C,  160. 

Graduated  inheritance  taxes  are  based 
on  reasonable  classification. 

Keeney  v.  New  York,  222  U.  S.  625,  66  L. 
ed.  299,  38  LJR.A.(N.S.)  1139,  32  Sup.  Ct. 
Rep.  105;  Magoun  v.  Illinois  Trust  ft  Sav. 
Bank,  170  U.  S.  283,  293,  42  L.  ed.  1037, 
1042,  18  Sup.  Ct.  Rep.  594. 

It  is  competent  for  a  legislature  to  de- 
termine upon  what  differences  a  distinction 
may  be  made,  for  the  purpose  of  statutory 
classification,    between    objects    otherwise 

840  U.  8. 


1915. 


STANTON  ▼.  BALTIC  MIN.  CO. 


lutTing  rcflemblances.  Such  power,  of 
oourse,  cannot  be  arbitrarily  exercised.  The 
distinction  must  bave  a  reasonable  basis. 
International  Hanrester  Co.  ▼.  Missouri, 
284  U.  8. 199,  214,  216,  68  L.  ed.  1276,  1283, 
1284,  62  L.RJL(N.8.)  626,  34  Sup.  Ct  Rep. 
869;  CUrk  ▼.  Kansas  Ci^,  176  U.  S.  114, 
44  L.  ed.  392,  20  Sup.  Ct.  Rep.  284;  Qund- 
ling  ▼.  Chicago,  177  U.  S.  188,  44  L.  ed. 
726,  20  Sup.  Ct.  Rep.  633;  Petit  ▼.  Minne- 
sota, 177  U.  S.  164,  44  L.  ed.  716,  20  Sup. 
Ct  Rep.  666;  WillUms  v.  Fears,  179  U.  S. 
270,  46  L.  ed.  186,  21  Sup.  Ct.  Rep.  128; 
Grimth  ▼.  Connecticut,  218  U.  S.  563,  54 
L.  ed.  1161,  81  Sup.  Ct.  Rep.  132;  Chicago, 
R.  I.  ft  P.  R.  Co.  ▼.  Arkansas,  219  U.  S. 
453,  460,  66  L.  ed.  290,  296,  31  Sup.  Ct 
Rep.  276 ;  6th  Ave.  Coach  Co.  t.  New  York, 
221  U.  S.  467,  55  L.  ed.  816,  81  Sup.  Ct. 
Rep.  709;  Murphy  ▼.  California,  225  U.  S. 
623,  66  L.  ed.  1229,  41  LJtA.(N.S.)    153, 

32  Sup.  Ot.  Rep.  697;  Rosenthal  t.  New 
York,  226  U.  S.  260,  269,  270,  67  L.  ed. 
212,  216,  217,  33  Sup.  Ct.  Rep.  27,  Ann. 
Cas.  1914B,  71 ;  Denver  v.  New  York  Trust 
Co.  229  U.  S.  123,  143,  57  L.  ed.  1101,  1124, 

33  Sup.  Ct.  Rep.  657;  Patsone  v.  Pennsyl- 
vania, 232  U.  S.  138,  144,  58  L.  ed.  539, 
543,  34  Sup.  Ct.  Rep.  281;  Missouri,  K.  A 
T.  R.  Co.  V.  Cade,  233  U.  S.  642,  58  L.  ed. 
1135,  34  Sup.  Ct.  Rep.  678;  Keokee  Consol. 
Coke  Co.  V.  Taylor,  234  U.  S.  224,  58  L.  ed. 
1288,  34   Sup.  Ot.  Rep.  856. 

Assuming,  however,  the  adoption  of  a 
proper  classification,  upon  a  reasonable 
basis,  all  within  the  class  selected,  and  sub- 
ject to  like  conditions,  must  be  treated 
alike. 

Chicago  Dock  ft  Canal  Co.  v.  Fraley,  228 
U.  S.  680,  681,  57  L.  ed.  1022,  33  Sup.  Ct. 
Rep.  715;  Southwestern  Oil  Co.  v.  Texas, 
217  U.  8.  114,  121,  127,  54  L.  ed.  688,  692, 
694,  30  Sup.  Ct.  Rep.  496;  Selover,  B.  ft 
Co.  V.  Walsh,  226  U.  S.  112,  57  L.  ed.  146, 
33  Sup.  Ct  Rep.  69;  Kentucky  R.  Tax 
Cases,  115  U.  S.  321,  337,  29  L.  ed.  414,  419, 
6  Sup.  Ct.  Rep.  57;  Home  Ins.  Co.  v.  New 
York,  134  U.  S.  594,  606,  33  L.  ed.  1025, 
1031,  10  Sup.  Ot.  Rep.  593. 

The  equal  protection  of  the  laws  is  a 
pledge  of  the  protection  of  equal  laws  to 
all  under  like  circumstances. 

German  Alliance  Ins.  Co.  t.  Hale,  219 
U.  S,  307,  818,  55  L.  ed.  229,  236,  31  Sup. 
Ct  Rep.  246;  Yick  Wo  v.  Hopkins,  118  U. 
8.  356,  367,  30  L.  ed.  220,  225,  6  Sup.  Ct 
Rep.  1064;  Barbier  v.  Connolly,  113  U.  S. 
27,  28  L.  ed.  928,  6  Sup.  Ct.  Rep.  357; 
Soon  Hing  v.  Crowley,  113  U.  8.  703,  28 
L.  ed.  1145,  5  Sup.  Ct  Rep.  730. 

Classifications  have  been  held  to  be  un- 
constitutional, which  were  no  more  arbi- 
69  li.  ed. 


trary  and  unequal  than  the  present  classi- 
fication. 

Gulf,  C.  ft  S.  F.  R.  Co.  V.  Ellis,  165  U.  8. 
150,  41  L.  ed.  666,  17  Sup.  Ct  Rep.  255; 
Missouri,  K.  ft  T.  R.  Oo.  v.  Cade,  233  U.  8. 
642,  58  L.  ed.  1135,  34  Sup.  Ct  Rep.  678; 
Cotting  T.  Kansas  City  Stockyards  Co. 
(Cotting  T.  Godard)  183  U.  8.  79,  46  L. 
ed.  92,  22  Sup.  Ct.  Rep.  30;  Connolly  v. 
Union  Sewer  Pipe  Co.  184  U.  8.  540,  46 
U  ed.  679,  22  Sup.  Ct.  Rep.  431;  Southern 
R.  Co.  V.  Greene,  216  U.  8.  400,  54  L.  ed. 
536,  30  Sup.  Ct.  Rep.  287,  17  Ann.  Cas. 
1247;  Smith  v.  Texas,  233  U.  S.  630,  58  L. 
ed.  1129,  L.RJ1.1915D,  677,  34  Sup.  Ct 
Rep.  681,  Ann.  Cas.  1915D,  420;  San  Fran- 
cisco Nat  Bank  v.  Dodge,  197  U.  8.  70,  49 
L.  ed.  669,  25  Sup.  Ct  Rep.  384;  Covington 
V.  First  Nat  Bank,  198  U.  S.  100,  49  L.  ed. 
963,  25  Sup.  Ct.  Rep.  562. 

The  attempted  classification  must  rest 
on  some  reasonable  basis  for  distinction. 
It  must  also  rest  upon  some  difference  in- 
dicating a  reasonable  and  just  relation  to 
the  act  in  respect  of  which  the  classification 
is  proposed. 

German  Alliance  Ins.  Co.  v.  Hale,  219  U. 
8.  307,  318,  55  L.  ed.  229,  236,  31  Sup.  Ct. 
Rep.  246;  Kidd,  D.  ft  P.  Co.  v.  Musselman 
Grocer  Co.  217  U.  S.  461,  472,  54  L.  ed. 
839,  845,  30  Sup.  Ct  Rep.  606;  Gulf,  C.  ft 
8.  F.  R.  Co.  V.  Ellis,  165  U.  8.  150,  165,  41 
L.  ed.  666,  671,  17  Sup.  Ct  Rep.  255; 
American  Sugar  Ref.  Co.  v.  Louisiana,  179 
U.  8.  89,  92,  45  L.  ed.  102,  103,  21  Sup. 
Ct  Rep.  43;  Magoun  v.  Illinois  Trust  ft 
Sav.  Bank,  170  U.  S.  283,  293,  294,  42  L. 
ed.  1037,  1042,  1043,  18  Sup.  a.  Rep.  594. 

Conceding  that  the  legislative  body  may 
arbitrarily  impose  varying  excises  upon 
different  kinds  of  corporations,  it  by  no 
means  follows  that  direct  taxes  may  be 
thus  exacted. 

Magoun  v.  Illinois  Trust  ft  Sav.  Banic, 
170  U.  8.  283,  302,  42  L.  ed.  1037,  1045,  18 
Sup.  Ct.  Rep.  594. 

When  the  ore  has  been  detached  from 
the  soil  in  which  it  is  imbedded,  it  becomes 
personal  property. 

Forbes  v.  Gracey,  94  U.  8.  762,  765,  766, 
24  L.  ed.  313,  314,  14  Mor.  Min.  Rep.  183; 
Buford  V.  Houtz,  133  U.  8.  320,  332,  33  L. 
ed.>  618,  622,  10  Sup.  Ct.  Rep.  305. 

The  fruits  and  products  of  land,  whether 
vegetable  or  mineral,  until  severed,  are  as 
much  realty  as  the  land  itself,  or  the  rent- 
als thereof. 

Caldwell  v.  Fulton,  31  Pa.  483,  72  Am. 
Dec.  760,  3  Mor.  Min.  Rep.  238;  Pollock  v. 
Farmers'  Loan  ft  T.  Co.  158  U.  8.  601,  692,^ 
89  L.  ed.  1108,  1144,  15  Sup.  Ct.  Rep.  912;. 
Oo.  Litt.  4  (a)    (b) ;  2  Bl.  Com.  18. 

Ore,  in  place,  is  capital,  and  is  part  of 


SUPRBMS  COURT  OF  THE  UNITED  STATES. 


Oct.  Term. 


the  real  estate.  It  is  just  as  mudi  a  part 
of  the  real  estate  as  trees  standing  on  the 
land. 

Sargent  Land  Go.  t.  Von  Baumbach,  207 
Fed.  423. 

The  timber,  when  cut,  is  still  part  of  the 
principal,  and  the  produce  of  it  is  invested, 
and  the  interest  only  is  paid  to  the 'tenant 
for  life. 

Daly  ▼.  Beckett,  24  Beav.  114,  8  Jur.  N. 
S.  754,  5  Week.  Rep.  514. 

There  is  no  fair  reason  for  the  law  that 
would  not  require,  with  equal  force,  its  ex- 
tension to  others  whom  it  leaves  untouched. 

Barrett  t.  Indiana,  229  U.  S.  26,  30,  57 
L.  ed.  1050,  1052,  33  Sup.  Ct.  Rep.  692;  In- 
ternational Harvester  Co.  v.  Missouri,  234 
U.  S.  199,  214,  58  L.  ed.  1276,  1283,  52 
LJtJL.(N.S.)  525,  34  Sup.  Ct.  Rep.  859; 
Watson  V.  Maryland,  218  U.  S.  173,  179,  54 
L.  ed.  987,  990,  30  Sup.  Ct.  Rep.  644. 

The  discrimination  against  mines  is  of 
an  ''unusual  character,"  wholly  "unknown 
to  the  practice  of  our  governments,"  and  is 
pure  favoritism,  class  legislation,  and  pal- 
pably arbitrary  classification,  resting  upon 
no  reasonable  basis  for  distinction. 

Bell's  Gap  R.  Co.  v.  Pennsylvania,  134 
U.  S.  232,  237,  33  L.  ed.  892,  895,  10  Sup. 
Ct.  Rep.  533. 

Justice  requires  that  the  burdens  of  gov- 
ernment shall,  as  far  as  is  practicable,  be 
laid  equally  on  all;  and,  if  property  is 
taxed  once  in  one  way,  it  would  ordinarily 
be  wrong  to  tax  it  again  in  another  way, 
when  the  burden  of  both  taxes  falls  on  the 
same  person. 

Tennessee  v.  Whitworth,  117  U.  S.  129, 
136,  29  L.  ed.  830,  832,  6  Sup.  Ct.  Rep. 
649. 

Even  the  taxing  power  of  Congress  is 
subject  to  some  limitations,  under  the  5th 
Amendment,  and  legislation  is  condemned 
thereby  which  selects  objects  and  rules 
of  valuation  arbitrarily  and  without  any 
reasonable  basis. 

Second  Enq>loyers'  Liability  Cases  (Mon- 
dou  V.  New  York,  N.  H.  ft  H.  R.  Co.)  223 
U.  S.  1,  52,  53,  56  L.  ed.  327,  347,  38 
L.R.A.(N.S.)  44,  82  Sup.  Ct.  Rep.  169,  1 
N.  0.  C.  A.  875;  United  States  v.  Heinse, 
218  U.  S.  532,  54  L.  ed.  1139,  31  Sup.  Ct. 
Rep.  98,  21  Ann.  Gas.  884;  District  of 
Columbia  v.  Brooke,  214  U.  S.  138,  53  L. 
ed.  941,  29  Sup.  Ct.  Rep.  560. 

Both  the  5th  and  tha  14th  Amendments 
presuppose  equality  before  the  law,  which 
is  a  fimdamental  necessity,  inhering  in  our 
form  of  government,  and  not  requiring  ex- 
press statonent  in  the  Constitution. 

Yick  Wo  V.  Hopkins,  118  U.  S.  356,  369, 
370,  80  L.  ed.  220,  226,  6  Sup.  Ct.  Rep. 
1064;  Qulf,  C.  ft  S.  F.  R.  Go.  y.  EUis,  165 
A50 


I  U.  S.  150,  159,  160,  41  L.  ed.  666,  669,  670, 
17  Sup.  Ct.  Rep.  255;  Vanzant  v.  Waddel,  2 
Yerg.  270;  State  v.  Loomis,  115  Mo.  307, 
I  314,  21  L.RJ^.  789,  22  8.  W.  350. 

Palpably  arbitrary  classification,  for  pur- 
poses of  taxation,  without  any  reasonable 
basis,  violates  due  proceds  of  law,  as  guar- 
anteed by  the  5th  Amendment. 

Bank  of  Columbia  v.  Okely,  4  Wheat. 
235,  244,  4  L.  ed.  559,  561;  Re  Kemmler» 
136  U.  S.  436,  448,  34  L.  ed.  519,  524,  10 
Sup.  Ct.  Rep.  930;  Holden  v.  Hardy,  169 
U.  8.  366,  389,  42  L.  ed.  780,  790,  18  Sup. 
Ct.  Rep.  383;  Scott  v.  McNeal,  154  U.  S. 
34,  45,  38  L.  ed.  896,  901,  14  6up.  Ct.  Rep. 
1108. 

The  phrase  cannot  be  so  construed  as 
to  leave  Congress  free  to  make  any  process 
"due  process  of  law"  by  its  mere  will. 

Den  ex  dem.  Murray  v.  Hoboken  Land 
ft  Improv.  Co.  18  How.  272,  276,  15  L.  ed. 
372,  374. 

Due  process  is  secured  by  laws  operating 
on  all  alike,  and  not  subjecting  the  indi- 
vidual to  the  arbitrary  exercise  of  the  pow- 
ers of  government,  unrestrained  by  the 
established  principles  of  private  right  and 
distributive  justice. 

Leeper  v.  Texas,  139  U.  S.  462,  468,  35  L. 
ed.  225,  227,  11  Sup.  Ct.  Rep.  577;  HurUdo 
V.  California,  110  U.  S.  516,  535,  28  L.  ed. 
232,  238,  4  Sup.  Ct.  Rep.  Ill,  202;  Duncan 
V.  Missouri,  152  U.  S.  377,  38  L.  ed.  485, 

14  Sup.  Ct.  Rep.  570;  Twining  v.  New  Jer- 
sey, 211  U.  S.  78,  101,  102,  53  L.  ed.  97, 
107,  29  Sup.  Ct.  R^.  14. 

The  principle  of  classification  is  not  dif- 
ferent in  tax  laws  than  in  other  lawa 

Connolly  v.  Union  Sewer  Pipe  Co.  184  U. 
S.  540,  570,  46  L.  ed.  679,  694,  22  Sup.  Ct. 
Rep.  431 ;  Cox  v.  Texas,  202  U.  S.  446,  450, 
451,  50  L.  ed.  1099,  1101,  26  Sup.  Ct.  Rep. 
671. 

There  is  no  such  thing  as  unlimited 
power  of  taxation  in  Congress.  Equality 
and  unformity  are  an  inherent  necessity 
in  all  taxation. 

Pollock  V.  Farmers'  Loan  ft  T.  Co.  157 
U.  S.  429,  599,  39  L.  ed.  759,  825,  15  Sup. 
Ot  Rep.  673;  Citizens'  Sav.  ft  L.  Asso.  v. 
Topeka,  20  Wall.  655,  22  L.  ed.  455;  Par- 
kersburg  v.  Brown,  106  U.  S.  487,  27  L.  ed. 
238,  1  Sup.  Ct.  Rep.  442. 

Gross  discriminations  in  former  income 
tax  would  probably  have  rendered  it  un- 
constitutional, if  it  had  not  been  held  so  on 
other  grounds. 

Pollock  V.  Farmers'  Loan  ft  T.  Go.  157 
U.  8.  429,  599,  600,  89  L.  ed.  759,  825,  826, 

15  Sup.  Ct.  Rep.  673;  Ballard  ▼.  Hunter, 
204  U.  S.  241,  255,  256,  51  L.  ed.  461,  471, 
472,  27  Sup.  Ct.  Rep.  261;  Magoun  v. 
Illinois  Trust  ft  Sav.  Bank,  170  U.  S.  283, 

840  U.  8. 


1&15. 


STANTON  T.  BALTIC  MIN.  CO. 


±b4,  42  L.  ed.  1037,  1043,  18  Sup.  Ct.  R«p. 
^IKM ;  Bell's  Gap  R.  Co.  v.  PennBylvania,  134 
U.  S.  232,  237,  33  L.  ed.  892,  896,  10  Sup. 
•Ct.  Rep.  533. 

Mr.  John  R.  Van  Derlip  filed  a  brief  a« 
amicus  euriof  for  appellant: 

No  tax  can  be  imposed  without  express 
legislation  authorizing  it;  and,  luiless  the 
intention  of  the  legislature  to  lay  the  tax 
be  explicitly  and  distinctly  shown  by  um- 
ambiguous  words,  the  public  cannot  be 
charged  with  its  burden;  for,  if  there 
be  reasonable  doubt  of  the  intent,  it  will  be 
•denied. 

Cooley,  Taxn.  267,  268;  Eidman  v.  Mar- 
tinez, 184  U.  S.  678,  583,  46  L.  ed.  697,  701, 
«2  Sup.  Ct.  Rep.  615. 

A  legislative  body  cannot,  by  giving  a 
tax  a  certain  name,  change  its  nature  or 
-effect. 

Pollock  V.  Farmers'  Loan  ft  T.  Co.  167 
U.  S.  680-683,  39  L.  ed.  818-820,  16  Sup. 
Ot.  Rep.  673;  Galveston,  H.  &  S.  A.  R.  Go. 
-V.  Texas,  210  U.  S.  217,  227,  62  L.  ed  1031, 
1037,  28  Sup.  Ct.  Rep.  638;  Choctaw,  0.  & 
•G.  R.  Co.  V.  Harrison,  235  U.  S.  292,  298, 
69  L.  ed.  234,  237,  35  Sup.  Ct.  Rep.  27. 

In  determining  the  character  of  an  al- 
leged tax,  its  actual  and  practical  result 
will  be  considered,  rather  than  the  cor- 
rectness of  the  theoretical  or  abstract  ideas 
upon  which  it  purports  to  be  based. 

Nicol  V.  Ames,  173  U.  S.  609,  515,  43  L. 
ed.  786,  791,  19  Sup.  Ct.  Rep.  622. 

Things  which  are  not  in  fact  income  can- 
not be  made  such  by  mere  legislative  fiat; 
it  is  beyond  the  power  of  a  legislature, 
state  or  national,  to  include  in  income  the 
capital,  or  principal,  from  which  the  income 
is  derived. 

State  ex  rel.  Bolens  v.  Frear,  148  Wis.  612, 
LR.A.1915B,  569,  134  N.  W.  673,  135  N. 
W.  164,  Ann.  Cas.  1913A,  1147;  Stevens  ▼. 
Hudson's  Bay  Co.  101  L.  T.  N.  S.  96,  26 
Times  L.  R.  709;  Secretary  of  State  v.  Sco 
ble  [1903]  A.  C.  299,  72  L.  J.  K.  B.  N.  S. 
-617,  61  Week.  Rep.  676,  19  Times  L.  R. 
550,  89  L  T.  N.  S.  3. 

As  respects  pecuniary  returns  from  in- 
vestments in  any  kind  of  property,  it  may 
be  accurately  asserted  that  income  is  that 
part  of  the  net  receipts  of  a  taxpayer 
which  represents  gains  or  profits  after  re- 
turning to  him  the  full  value  of  his  princi- 
pal investment  from  the  use,  disposition, 
or  transmutation  of  which  the  gain  or 
profit  results. 

Black,  Income  Tax,  §§  32,  34;  Waring  v. 
Savannah,  60  Ga.  93;  Mundy  v.  Van  Hoose, 
104  Ga.  292,  30  S.  S.  783;  Seligman,  In- 
•come  Tax,  §  6 ;  Wilcox  v.  Middlesex  County, 
103  Mass.  644;  Sargent  Land  Co.  v.  Von  I 
Baumbach,  207  Fed.  423;  Mitchell  Broa. ' 
«•  li.  ed. 


Co.  v.  Doyle,  226  Fed.  487;  Stratton's  In- 
dependence V.  Howbert,  231  U.  S.  416,  58 
L.  ed.  292,  34  Sup.  Ct.  Rep.  136;  Stevens 
V.  Hudson's  Bay  Co.  101.  L.  T.  N.  S.  96, 
25  Times  L  R.  709;  Secretary  of  State  v. 
Scoble,  [1903]  A.  C.  299,  72  L.  J.  K.  B.  N. 
8.  617,  61  Week.  Rep.  675,  19  Times  L.  R. 
550,  89  L.  T.  N.  S.  1;  Com.  v.  Central 
Transp.  Co.  146  Pa.  89,  22  Atl.  209. 

Only  so  much  of  the  receipts  or  royalties 
(as  the  case  may  be)  as  are  in  excess  of 
the  capital  investment  included  in  them  is 
income  which  can  be  considered  in  assessing 
an  income  tax. 

Stratton's  Independence  v.  Howbert,  23 
U.  S.  399,  68  L  ed.  285,  34  Sup.  Ct.  Rep. 
136;  Foley  v.  Fletcher,  3  Hurlst.  &  N.  769, 
28  L.  J.  Ex3h.  N.  S.  100,  6  Jur.  N.  S.  342, 
7  Week.  Rep.  141,  4  Mor.  Min.  Rep.  130; 
Von  Baumbach  v.  Sargent  Land  Co.  L.R.A. 
— ,  -—,  134  C.  C.  A.  649,  219  Fed.  31; 
United  States  v.  Nipissing  Mines  Co.  202 
Fed.  803. 

It  is  incompetent  for  Congress,  in  evalu- 
ating the  net  income  of  a  taxpayer  for  the 
purpose  of  taxation,  to  include  therein 
property  which  is  not  income,  and  which  is 
exempt  by  constitutional  provision  from 
such  taxation. 

Gordon  v.  Oornes,  47  N.  Y.  612 ;  Delaware, 
L  &  W.  R.  Co.  V.  Pennsylvania,  198  U.  S. 
341,  40  L.  ed.  1077,  26  Sup.  Ct.  Rep.  669; 
Louisville  &  J.  Ferry  Co.  v.  Kentucky,  188 
U.  S.  385,  47  L.  ed.  613,  23  Sup.  Ct.  Rep. 
463. 

The  allowance  for  depreciation  must  be 
based  upon  the  value,  and  not  the  cost,  of 
the  property. 

Von  Baumbach  v.  Sargent  Land  Co.  L.R.A. 
— ,  — ,  134  C.  C.  A.  649,  219  Fed.  37; 
Mitchell  Bros.  Co.  v.  Doyle,  226  Fad.  437. 

The  16th  Amendment  is  prospective  only 
in  its  operation  (Shreveport  v.  Cole,  129  U. 
S.  36,  32  L.  ed.  689,  9  Sup.  Ct.  Rep.  210), 
and  Congress  acquired  no  power  thereunder 
to  tax  income  previously  accrued  Its 
authority  affected  only  incomes  derived  in 
the  future. 

Mercur  Gold  Min.  ft  Mill.  Co.  v.  Spry,  16 
Utah,  222,  52  Pac.  382;  Centennial  Eureka 
Min.  Co.  V.  Juab  County,  22  Utah,  395,  62 
Pac.  1024;  Mitchell  Bros.  Co.  v.  Doyle, 
supra. 

Those  properietors  of  mining  properties 
who,  prior  to  March  1,  1913,  had  already 
disposed  of  their  ores,  to  be  mined  by  their 
vendees,  are  manifestly  exempt  from  the  pay- 
ment of  any  income  tax  upon  the  moneys 
received  by  them  for  such  ores,  because  the 
fact  of  the  disposition  at  a  specified  price 
of  itself  demonstrates  the  value  attaching 
to  the  ore  at  the  time  of  its  disposal.  All 
possible  gains  over  original  cost  had  then 

551 


107-100 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct,  Term, 


been  realized  and  had  become  capitalized. 
The  owners  had  sold  their  property  for  so 
much. 

Mitchell  Bros.  Co.  y.  Doyle  and  Von 
Baumbach  v.  Sargent  Land  Co.,  supra. 

The  sale  outright  of  a  mining  property 
may  be  fairly  described  as  a  mere  conver- 
sion of  the  capital  from  land  into  money; 
a  sale  which  gives  the  vendee  the  absolute 
right  of  possession  and  removal  of  ore  is 
''outright/'  regardless  of  the  time  of  pay- 
ment. 

Von  Baumbach  t.  Sargent  Land  Co. 
L.R.A.— ,  — ,  134  C.  C.  A.  649,  219  Fed. 
39;  Stevens  v.  Hudson's  Bay  Co.  101  L.  T. 
N.  S.  96,  25  Times  L.  R.  709;  Secretary  of 
State  ▼.  Scoble  [1903]  A.  C.  299,  72  L.  J. 
K.  B.  N.  S.  617,  61  Week.  Rep.  675,  19 
Times  L.  R.  560,  89  L.  T.  N.  S.  1 ;  Foley  v. 
Fletcher,  3  Hurlst.  &  N.  769,  28  L.  J.  Exch. 
N.  S.  100,  6  Jur.  N.  S.  342,  7  Wedc.  Rep. 
141,  4  Mor.  Min.  Rep.  130. 

No  brief  was  filed  for  appellees. 

Mr.  Chief  Justice  White  delivered  the 
opinion  of  the  court: 

As  in  Brushaber  v.  Union  P.  R.  Co.  240 
U.  S.  1,  ante,  236,  36  Sup.  Ct.  Rep.  236,  this 
case  was  commenced  by  the  appellant  as  a 
stockholder  of  the  Baltic  Mining  Company, 
the  appellee,  to  enjoin  the  voluntary  pay- 
ment by  the  corporation  and  its  officers  of 
the  tax  assessed  against  it  under  the  in- 
come tax  section  of  the  tariff  act  of  Octo- 
ber 3,  1918  (38  Stat,  at  L.  166,  181,  chap. 
16).  As  the  grounds  for  the  equitable 
relief  [108]  sought  in  this  case  so  far  as 
the  question  of  jurisdiction  is  concerned  are 
substantially  the  same  as  those  which  were 
relied  upon  in  the  Brushaber  Case,  it 
follows  that  the  ruling  in  that  case  uphold- 
ing the  power  to  dispose  of  that  controversy 
is  controlling  here,  and  we  put  that  subject 
out  of  view. 

Further,  also,  like  the  Brushaber  Case, 
this  is  before  us  on  a  direct  appeal  prose- 
cuted for  the  purpose  of  reviewing  the  ac- 
tion of  the  court  below  in  dismissing  on 
motion  the  bill  for  want  of  equity. 

The  bill  averred:  "That,  under  and  by 
virtue  of  the  alleged  authority  contained 
in  said  income  tax  law,  if  valid  and  con- 
stitutional, the  respondent  company  is  tax- 
able at  the  rate  of  1  per  cent  upon  its  gross 
receipts  from  all  sources,  during  the  calen- 
dar year  ending  December  31,  1914,  after 
deducting  (1)  its  ordinary  and  necessary 
expenses  paid  within  the  year  in  the  main- 
tenance and  operation  of  its  business  and 
properties,  and  (2)  all  losses  actually  sus- 
tained within  the  year,  and  not  compen- 
sated by  insurance  or  otherwise,  including 
depreciation  arising  from  depletion  of  its 
ore  deposits  to  ths  limited  extent  of  6  per 
353 


cent  of  the  'gross  value  at  the  mine  of  the 
output'  during  said  year."  It  was  fur- 
ther alleged  that  the  company  would,  if 
not  restrained,  make  a  return  for  taxation 
conformably  to  the  statute,  and  would  pay 
the  tax  upon  the  basis  stated  without  pro- 
test, and  that  to  do  so  would  result  in  de- 
priving- the  complainant  as  a  stockholder 
of  rights  secured  by  the  Constitution  of 
the  United  States,  as  the  tax  which  it  waa 
proposed  to  pay  without  protest  was  void 
for  repugnancy  to  that  Constitution.  The 
bill  contained  many  averments  on  the  fol- 
lowing subjects,  which  may  be  divided  into 
two  generic  classes:  (A)  Those  concern- 
ing the  operation  of  the  law  in  question 
upon  individuals  generally  and  upon  other 
than  mining  corporations,  and  the  discrimi- 
nation against  mining  corporations  whidi 
arose  in  favor  of  such  other  corporation* 
and  individuals  [109]  by  the  legislation,  a» 
well  as  discrimination  which  the  provisions 
of  the  act  operated  against  mining  corpora- 
tions because  of  the  separate  and  more  un- 
favorable burden  cast  upon  them  by  the 
statute  than  was  placed  upon  other  cor- 
porations and  individuals, — averments  aU 
of  which  were  obviously  made  to  support 
the  subsequent  charges  which  the  bill  con- 
tained as  to  the  repugnancy  of  the  law  im- 
posing the  tax  to  the  equal  protection,  due 
process,  and  uniformity  clauses  of  the  Con- 
stitution. And  (B)  those  dealing  with  the 
practical  results  on  the  company  of  the 
operation  of  the  tax  in  question,  evidently 
alleged  for  the  purpose  of  sustaining  the 
charge  which  the  bill  made  that  the  tax 
levied  was  not  what  was  deemed  to  be  the 
peculiar  direct  tax  which  the  16th  Amend- 
ment exceptionally  authorized  to  be  levied 
without  apportionment,  and  of  the  result- 
ing repugnancy  of  the  tax  to  the  Consti- 
tution as  a  direct  tax  on  property  because 
of  its  ovniership,  levied  without  conforming 
to  the  regulation  of  apportionment  generally 
required  by  the  Constitution  as  to  such 
taxation. 

We  need  not  more  particularly  state  the 
averments  as  to  the  various  contentions  in 
class  (A),  as  their  character  will  neces- 
sarily be  made  manifest  by  the  statement 
of  the  legal  propositions  based  on  them 
which  we  shall  hereafter  have  occasion  to 
make.  As  Ut  the  averments  concerning  class 
(B),  it  suffices  to  say  that  it  resulted 
from  copious  allegations  in  the  bill  as  to 
the  value  of  the  ore  body  contained  in  the 
mine  which  the  company  worked,  and  the 
total  output  for  the  year  of  the  product  of 
the  mine  after  deducting  the  expenses  as 
previously  stated;  that  the  5  per  cent 
deduction  permitted  by  the  statute  was  in- 
adequate to  allow  for  the  depletion  of  tiie 
ors  body,  and  therefore  the  law  to  a  Inrge 

840  V.  8* 


1915. 


STANTON  V.  BALTIC  MIN.  CO. 


109-112 


flKteat  taxed  not  the  mere  profit  arising 
from  the  operation  of  the  mine,  but  taxed 
as  income  the  yearly  product  which  repre- 
sented to  a  large  extent  the  yearly  deple 
tioD  or  exhaustion  of  [110]  the  ore  body 
from  which,  during  the  year,  ore  was  taken. 
Indeed,  the  following  alleged  facts  concern- 
ing the  relation  which  the  annual  produc- 
tion bore  to  the  exhaustion  or  diminution 
of  the  property  in  the  ore  bed  must  be  taken 
as  true  for  the  purpose  of  reviewing  the 
judgment  sustaining  the  motion  to  dismiss 
the  bill: 

That  the  real  or  actual  yearly  income 
deriTed  by  the  respondent  company  from 
its  business  or  property  does  not  exceed 
$550,000.  That,  under  the  income-tax,  the 
said  company  is  held  taxable,  in  an  aver- 
age year,  to  the  amount  of  approximately 
$1,150,000,  the  same  being  ascertained  by 
deducting  from  its  net  receipts  of  $1,400,000 
only  a  depreciation  of  $100,000  on  its  plant 
and  a  depletion  of  its  ore  supply  limited  by 
law  to  5  per  cent  of  the  value  of  its  annual 
gross  receipts,  and  amounting  to  $150,000; 
whereas,  in  order  properly  to  ascertain  its 
actual  income,  $750,000  per  annum  should 
be  allowed  to  be  deducted  for  such  deple- 
tion, or  Ave  times  the  amount  actually  al- 
lowed." 

Without  attempting  minutely  to  state 
every  possible  ground  of  attack  which 
might  be  deduced  from  the  averments  of 
the  bill,  but  in  substance  embracing  every 
material  grievance  therein  asserted  and 
pressed  in  argument  upon  our  attention  in 
^e  elaborate  briefs  which  have  been  sub- 
mitted, we  come  to  separately  dispose  of 
the  legal  propositions  advanced  in  the  bill 
and  arguments  concerning  the  two  classes. 

Class  A.  Under  this  the  bill  charged  that 
the  provisions  of  the  statute  "are  uncon- 
stitutional and  void  under  the  5th  Amend- 
ment, in  that  they  deny  to  mining  compa- 
nies and  their  stockholders  equal  protection 
of  the  laws  and  deprive  them  of  their  prop- 
erty without  due  process  of  law/'  for  the 
following  reasons: 

(1)  Because  all  other  individuals  or  cor- 
porations were  given  a  right  to  deduct  a 
fair  and  reasonable  percentage  for  losses 
and  depreciation  of  their  capital,  and  they 
were  [111]  therefore  not  confined  to  the 
arbitrary  6  per  cent  fixed  as  the  basis  for 
deductions  by  mining  corporations. 

(2)  Because  by  reason  of  the  differences 
in  the  allowances  which  the  statute  per- 
mitted, the  tax  levied  was  virtually  a  net 
income  tax  on  other  corporations  and  in- 
dividuals, and  a  gross  income  tax  on  min- 
ing corporations. 

(3)  Because  the  statute  established  a 
discriminating  rule  as  to  individuals  and 
other  corporations  as  against  mining  cor- 
60  Ii.  ed. 


porations  on  the  subject  of  the  method  of 
the  allowance  for  depreciations. 

(4)  Because  the  law  permitted  all  in- 
dividuals to  deduct  from  their  net  income 
dividends  received  from  corporations  which 
had  paid  the  tax  on  their  incomes,  and  did 
not  give  the  right  to  corporations  to  make 
such  deductions  from  their  income  of  divi- 
dends received  from  other  corporations 
which  had  paid  their  income  tax.  This  was 
illustrated  by  the  averment  that  09  per 
cent  of  the  stock  of  the  defendant  company 
was  owned  by  a  holding  company,  and  that 
under  the  statute  not  only  was  the  cor- 
poration obliged  to  pay  the  tax  on  its  in- 
come, but  so  also  was  the  holding  company 
obliged  to  pay  on  the  dividends  paid  it  by 
the  defendant  company. 

(5)  Because  of  the  discrimination  result- 
ing from  the  provision  of  the  statute  pro- 
viding for  a  progressive  increase  of  taxa- 
tion or  surtax  as  to  individuals,  and  not 
as  to  corporations. 

(6)  Because  of  the  exemptions  which  the 
statute  made  of  individual  incomes  below 
$4,000,  and  of  incomes  of  labor  organiza- 
tions and  various  other  exemptions  which 
were  set  forth. 

But  it  is  apparent  from  the  mere  state- 
ment of  these  contentions  that  each  and 
all  of  them  were  adversely  disposed  of  by 
the  decision  in  the  Brushaber  Case,  and  they 
all  therefore  may  be  put  out  of  view. 

Class  B.  Under  this  class  these  proposi- 
tions are  relied  upon: 

[112]  (1)  That  as  the  16th  Amendment 
authorizes  only  an  exceptional  direct  income 
tax  without  apportionment,  to  which  the 
tax  in  question  does  not  conform,  it  is  there- 
fore not  within  the  authority  of  that 
Amendment. 

(2)  Not  being  within  the  authority  of 
the  16th  Amendment,  the  tax  is  therefore, 
within  the  ruling  of  Pollock  t.  Farmers' 
Loan  &  T.  Co.  157  U.  S.  429,  39  L.  ed.  759, 
15  Sup.  Ct  Bep.  673;  158  U.  S.  601,  39 
L.  ed.  1108,  15  Sup.  Ct.  Rep.  912,  a  direct 
tax  and  void  for  want  of  compliance  with 
the  regulation  of  apportionment. 

As  the  first  proposition  is  plainly  in  con- 
flict with  the  meaning  of  the  16th  Amend- 
ment as  interpreted  in  the  Brushaber  Case, 
it  may  also  be  put  out  of  view.  As  to  the 
second,  while  indeed  it  is  distinct  from  the 
subjects  considered  in  the  Brushaber  Case 
to  the  extent  that  the  particular  tax  which 
the  statute  levies  on  mining  corporations 
here  under  consideration  is  distinct  from 
•the  tax  on  corporations  other  than  mining 
and  on  individuals,  which  was  disposed  of 
in  the  Brushaber  Case,  a  brief  analysis  will 
serve  to  demonstrate  that  the  distinction 
is  one  without  a  difference,  and  therefore 
that  the  proposition  is  also  foreclosed  by 

55S 


112-115 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


the  preyiouB  ruling.  The  contention  is  that 
as  the  tax  here  imposed  is  not  on  the  net 
product,  but  in  a  sense  somewhat  equivalent 
to  a  tax  on  the  gross  product  of  the  work- 
ing of  the  mine  by  the  corporation,  there- 
fore the  tax  is  not  within  the  purview  of 
the  16th  Amendment,  and  consequently  it 
must  be  treated  as  a  direct  tax  on  property 
because  of  its  ownership,  and  as  such  void 
for  want  of  apportionment.  But,  aside 
from  the  obvious  error  of  the  proposition, 
intrinsically  considered,  it  manifestly  dis- 
regards the  fact  that  by  the  previous  ruling 
it  was  settled  that  the  provisions  of  the 
16th  Amendment  conferred  no  new  power 
of  taxation,  but  simply  prohibited  the  pre- 
vious complete  and  plenary  power  of  in- 
come taxation  possessed  by  Congress  from 
the  beginning  from  being  taken  out  of  the 
category  of  indirect  taxation  to  which  it 
inherently  belonged,  and  being  placed  [113] 
in  the  category  of  direct  taxation  subject  to 
apportionment  by  a  consideration  of  the 
sources  from  which  the  income  was  derived, 
— that  is,  by  testing  the  tax  not  by  what 
it  was,  a  tax  on  income,  but  by  a  mistaken 
theory  deduced  from  the  origin  or  source 
of  the  income  taxed.  Mark,  of  course,  in 
saying  this  we  are  not  here  considering  a  tax 
not  within  the  provisions  of  the  16th 
Amendment,  that  is,  one  in  which  the  regu- 
lation of  apportionment  or  the  rule  of  uni- 
formity is  wholly  negligible  because  the 
tax  is  one  entirely  beyond  the  scope  of  the 
taxing  power  of  Congress,  and  where  con- 
sequently no  authority  to  impose  a  burden, 
either  direct  or  indirect,  exists.  In  other 
words,  we  are  here  dealing  solely  with  the 
restriction  imposed  by  the  16th  Amend- 
ment on  the  right  to  resort  to  the  source 
whence  an  income  is  derived  in  a  case  where 
there  is  power  to  tax  for  the  purpose  of 
taking  the  income  tax  out  of  the  class  of 
indirect,  to  which  it  generically  belongs, 
and  putting  it  in  the  class  of  direct,  to 
which  it  would  not  otherwise  belong,  in  or- 
der to  subject  it  to  the  regulation  of  ap- 
portionment. But  it  is  said  that  although 
this  be  ur.doubtedly  true  as  a  general  rule, 
the  peculiarity  of  mining  property  and  the 
exhaustion  of  the  ore  body  which  must  re- 
sult from  working  the  mine  cause  the  tax 
in  a  case  like  this,  where  an  inadequate 
allowance  by  way  of  deduction  is  made  for 
the  exhaustion  of  the  ore  body,  to  be  in 
the  nature  of  things  a  tax  on  property  be- 
cause of  its  ownership,  and  therefore  sub- 
ject to  apportionment.  Not  to  so  hoUi*  it 
is  urged,  is  as  to  mining  property  but  to 
say  that  mere  form  controls,  thus  render- 
ing in  substance  the  command  of  the  Con- 
stitution that  taxation  directly  on  property 
because  of  its  ownership  be  apportioned, 
wholly  illusory  or  futile.  But  this  merely 
354 


asserts  a  right  to  take  the  taxation  of  min- 
ing  corporations  out  of  the  rule  established 
by  the  16th  Amendment  when  there  is  no 
authority  for  so  doing.  It  moreover  rests 
upon  the  wholly  fallacious  [114]  assump- 
tion that,  looked  at  from  the  point  of  view 
of  substance,  a  tax  on  the  product  of  a  mine 
is  necessarily  in  its  essence  and  nature  in 
every  case  a  direct  tax  on  property  because 
of  its  ownership,  unless  adequate  allowance 
be  mad^  for  the  exhaustion  of  the  ore  body 
to  result  from  working  the  mine.  We  say 
wholly  fallacious  assumption  because,  in- 
dependently of  the  effect  of  the  operation 
of  the  16th  Amendment,  it  was  settled  in 
Stratton's  Independence  v.  Howbert,  231  U. 
8.  309,  58  L.  ed.  285,  34  Sup..  Ct.  Rep.  136, 
that  such  tax  is  not  a  tax  upon  property 
as  such  because  of  its  ownership,  but  a  true 
excise  levied  on  the  results  of' the  business 
of  carrying  on  mining  operations,  (pp.  413 
et  seq.) 

As  it  follows  from  what  we  have  said 
that  the  contentions  are  in  substance  and 
effect  controlled  by  the  Brushaber  Case, 
and,  in  so  far  as  this  may  not  be  the  case, 
are  without  merit,  it  results  that,  for  the 
reasons  stated  in  the  opinion  in  that  case 
and  those  expressed  in  this,  the  judgment 
must  be  and  it  is  affirmed. 

Mr.  Justice  McReynolds  took  no  part  in 
the  consideration  and  decision  of  this  case. 


[116]  TYEE  REALIT  COMPANY,  Plff.  in 

Err., 

V. 

CHARLES  W.  ANDERSON,  Collector  of  In- 
ternal Revenue. 


EDWIN  THORNE,  Plff.  in  Err., 

V. 

CHARLES  W.  ANDERSON,  Collector  of  In- 
ternal Revenue. 

(See  S.  C.  Reporter's  ed.  116-118.) 

Internal  revenue  —  power  of  Conirreaa 
—  income  tax. 

1.  The  whole  purpose  of  U.  S.  Const^ 
16th  Amend.,  giving  Congress  the  power 
"to  lay  and  collect  texes  on  incomes,  from 
whatever  source  derived,  without  apportion- 
ment among  the  several  states,  and  with- 
out regard  to  any  census  or  enumeration," 
was  to  exclude  the  source  from  which  a 
taxed  income  was  derived  as  the  criterion 
by  which  to  determine  the  applicability  of 

Note. — On  the  constitutionality  of  income 
taxes — see  notes  to  Alderman  v.  Wells,  27 
L.R.A.(N.S.)   864;  and  State  ex  reL  Bolens 
V.  Frear,  L.R.A.1915B,  569. 
As  to  what  constitutes  due  process  of  law, 
*  generally — see  notes  to  People  v.  O'Brien, 

840  U.  8. 


1916. 


TYEE  REALTY  CO.  ▼.  ANDERSON. 


tlie  constitutional    requirement   as    to   ap-  Mr.  Julieii  T.  Davtes  argued  the  cause, 

Dortionment  of  direct  taxes.  and,  with  Messrs.  Brainard  Tolles,  Garrard 

^'"b.'  In^DieSt lup.'ct.  mSj'*    Re^en'i*.    I-  Glenn,  and  Martin  A.  Schenck,  filed  a  brief 

Consatuaonal    law  —  due    process    of  ^^\  plaintiffs  in  error: 

law  —  Income  tax  —  retroactive  effect.  ^^7    «tatute    providing    for    an    income 

2.  The  retroactive  effect  of  the  income  tax,  of  necessity  means  a  tax  upon  net  in- 
tax  provisions  of  the  tariff  act  of  October  comes. 

3. 1913  (38  SUt.  at  L.  166,  chap.  16,  Comp.  Thompson  v.  ReddiAg  [1897]   1  Ch.  879, 

Stat.  1913,  §  6319),  which  fix  the  preceding  66  L.  J.  Ch.  N.  S.  460,  76  L.  T.  N.  S.  839, 

March  Iflt  as  the  tinae  from  which  the  taxed  45  ^eek.  Rep.  457;  Peck  v.  Kinney,  74  C. 

S^^.  w  r?nH^^^  C.  A.  270, 143  Fed.  76;  Opinions  of  Justices, 

pated,  does  not  render  the  tax  repugnant  to  -,         '       _,        j        ▼         mi     tt  n       » 

the  due  process  of  Uw  clause  of  U  S.  Const.,  5,  ^^^'  ^^^>  ^""^"^^  ^-  Lamoille  Valley  R. 

5th  Amend.,  nor  inconsistent  with  the  16th  ^o-  52  Vt.   177;   Andrews  v.  Boyd,  6  Me. 

Amendment  itself,  since  the  date  of  retro-  1»9;  Lawless  v.  Sullivan,  L.  R.  6  App.  Cas. 

-activity   did   not   extend    beyond   the   time  373,  60  L.  J.  P.  C.  N.  S.  38,  44  L.  T.  N.  8. 

when  the  latter  Amendment  became  opera-  897,  29  Week.  Rep.  917;  Kingston  ▼.  Oui- 

*»v«-  ada  Life  Asaur.  Co.  19  Ont.  Rep.  453 ;  Taxa- 

iPpr    other    cases,    see    Constitutional    Law,  fj^n  Pomra    v    Antill   riOO^I    A    C.    192    71 

IV.  b.  C;  IV.  f.  2,  in  Dlgeat  8up.  Ct.  1908./  "®'*  ^   i      v.  Ant  ill  liyOJSJ   A.  U  4ZZ,  71 

Consatutional    law  —  due    process    of  J':  '^'  *;  ^- ^-  ^-  ®i'  ?^  ^  '^'  ^*  ^'  ^^^'  ^® 

Jaw  —  income  tax.  Times  L.  R.  644;  Colquhoun  v.  Brooks,  L. 

3.  The  progressive  rate  feature  of  the  R.  14  App.  Cas.  493,  69  L.  J.  Q.  B.  N.  8. 
income  tax  imposed  bj  the  act  of  October  53,  61  L.  T.  N.  S.  518,  38  Week.  Rep.  289, 
^,  J  913  (38  SUt.  at  L.  166,  cliap.  16,  Comp.  54  J.  P.  277. 

Stm,t.  1913,  §  6319),  does  not  cause  such  tax  Instances  of  taxes  on  gross  receipts  are 

i^^?"?'^"**  ^^^  conception  of  all  taxation,  common,  but  they  are  not  and  never  have 

'^ViJ^^utt'^'lr^:^/^^  ^;;    -"-^,   in<^e    Uxes.     Examples    of 

pi'<:>ces8  of  law.  ®"*^"  taxes  have  been  before  this  court  many 

[B*or    other    cases,    see    Constitutional    Law,  ^i^^s  in  cases  ranging  from  State  Tax  on 

X^,  b.  6.  in  Digest  Sup.  Ct.  1UU8.J  R.  Gross  Receipts,  16  Wall.  284,  21  L.  ed. 

Cc>s^satutional  'law  —  due    process    of  164,  through  Philadelphia  ft  S.  Mail  S.  8. 

m^w  —  income  tax  —  discrimination.  Co    v.  Pennsylvania,  122  U.  S.  326,  30  L. 

.   i'  Limiting    the    amount    of    interest  ^^    jgOO,  1  Inters.  Com.  Rep.  308,  7  Sup. 

wJ^  ^h  may  be  deducted  from  gross  income  ^   ^     ^j^g   ^  ^^        ^^  ^  ^       ^  £ 

01      «a  corporation  for  the  purpose  of  fixing  ^     i^ott   ooit    oct      T  n.^^    «  t  7 

th«     taxable  income  to  interest  on  indebted-  Co.  142  U.  S   217,  35  L.  ed.  994,  3  Inters. 

ne^^   not   exceeding   one   half   the   sum   of  Com.  Rep.  121,  163,  12  Sup.  Ct  Rep.  807. 

boxiac^ed    indebtedness    and    paid-up    capital  But  such  a  tax  as  that  is  not  an  income 

sto<:!^i(^  as  is  done  by  the  income  tax  provi-  tax,  and  belongs  in  quite  a  different  cate- 

***^*^8  of  tiie  tariff  act  of  October  3,   1913  gory.    The  so-called   income  tax   laws   im- 

(3S     Stat,  at  L.  166,  chap.  16,  Comp.  Stet.  posed  by  Congress  during  the  Civil  War,  it 

1»X  3.  §0319),  is  not  wanting  in  due  process  j,   i          ^,1^^^   ^„I      ^^^ain    deductions, 

«     i«w  because  discriminating  between  dif-  _„  ,     .      .,^  «.«««<./ ^#  4.u^  «,«--»«*  -♦IT 

fer^^t  classes  of  corporation;  and  Individ-  "i**^^  ^,  ^^?  "'^^"^J  ^^  *^^  P^\««°*  f**^ 

^                                   '^  ute.    But   these  statutes  are  not   instruc- 

other    cases,    see    Constitutional    Law,  <^i^«    ^^o™    the    present    viewpoint.      This 
.  b,  6,  in  Digest  Sup.  Ct.  1908.] 

[Nos.  393  and  394.] 


ual 

court  solemnly  determined  that  they  did 
not  impose  an  income  tax  on  a  holder  of 
stocks  or  bonds  of  the  corporation  upon 
which  the  tax  was  laid,  "but  on  th*  eam- 
'^Sxied  October  14  and  15,  1915.     Decided    ings   of   the   corporations   which    pay    the 

February  21,  1916.  interest"   (Michigan  C.  R.  Co.  v.  Collector, 

(Michigan  C.  R.  Co.  v.  Slack)    100  U.  8. 

TWO  WRITS   of   Error   to  the  District    595,  25  L.  ed.  647).    In  Little  Miami  ft 
Court   of    the    United    SUtes    for    the    C.  ft  X.  R.  Co.  v.  United  States,  108  U.  8. 
Southern  District  of  New  York  to  review    277,  27  L.  ed.  724,  2  Sup.  Ct.  Rep.  627,  this 
i^^^mcnts  sustaining  demurrers  to  the  com-    court  determined  that  the  tax  was  imposed 
P^^Qts  in  actions  to  recover  back  income    upon   the   profits   of   companies,   and   that 
^^^  paid  under  protest.    Affirmed.  these  profits  meant  profits  .of  the  company 

"^e  facts  are  stated  in  the  opinion.  .in  its  business  as  a  whole;  that  is  to  say. 


*  ^.HA.  255 ;  Kuntz  v.  Sumption,  2  L.R Jl. 
^;  Re  Gannon,  5  L.R.A.  359;  Ulman  v. 
Baltimore,  11  L.R.A.  224;  Oilman  v.  Tucker, 
18  LR.A.  304;  Pearson  v.  Yewdall,  24  L. 
«d.  U.  S.  436;  and  Wilson  v.  North  Caro- 
lini,  42  L.  ed.  U.  S.  865. 

As  to  ths  validity  of  class  legislation, 
10  L.  ed. 


generally — see  notes  to  State  v.  Goodwill, 
6  L.R.A.  621 ;  and  State  v.  Loomis,  21  L.RJL 
789. 

As  to  constitutional  equality  of  privileges, 
immunities,  and  protection,  generally — see 
note  to  Louisville  Safety  Vault  ft  T.  Co.  v. 
LouisvUle  ft  N.  R.  Co.  14  L«RJu  ^1<^. 

1k^^ 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


the  excess  of  the  aggregate  of  gains  from 
all  sources,  over  the  aggregate  of  losses. 
Later  this  court  held  that  the  tax  thus 
laid  was  an  excise  tax  upon  the  business 
conducted  by  the  corporation,  and  not  a 
tax  upon  the  bondholder  or  stockholder. 

United  States  v.  Erie  R.  Co.  106  U.  S. 
327,  27  L.  ed.  161,  1  Sup.  Ct.  Rep.  223. 

The  classification  is  arbitrary  and  un- 
reasonable. 

1  Cooley,  Taxn.  3d  ed.  p.  1;  Gray,  Limi- 
tations of  Taxing  Fewer,  p.  353;  Cooley, 
Const.  Lim.  pp.  607,  615;  M'Culloch  v. 
Maryland,  4  Wheat.  316,  4  L.  ed.  579;  Citi- 
zens' Sav.  k  L.  Asso.  ▼.  Topeka,  20  Wall. 
655,  663,  22  L.  ed.  455,  461 ;  United  States 
V.  Singer.  15  Wall.  Ill,  121,  21  L.  ed.  49, 
51;  Scholey  ▼.  Rew,  23  Wall.  331,  348,  23 
L.  ed.  99,  102;  Ward  v.  Maryland,  12  Wall. 
418,  431,  20  L.  ed.  449,  453;  Loughborough 
V.  Blake,  5  Wheat  317,  5  L.  ed.  98;  Pollock 
V.  Farmers*  Loan  &  T.  Co.  157  U.  S.  429, 
39  L.  ed.  759,  15  Sup.  Gt.  Rep.  673;  South- 
ern R.  Co.  ▼.  Greene,  216  U.  S.  400,  54  L. 
ed.  536,  30  Sup.  Ct  Rep.  287;  Pembina 
Consol.  Silver  Min.  Co.  v.  Pennsylvania,  125 
U.  S.  181,  188,  31  L.  ed.  650,  653,  2  Inters. 
Com.  Rep.  24,  8  Sup.  Ct.  Rep.  737;  Santa 
Clara  County  v.  Southern  P.  R.  Co.  9  Sawy. 
165,  18  Fed.  385,  affirmed  in  118  U.  S.  394, 
30  L.  ed.  118,  6  Sup.  Ct  Rep.  1132;  San 
Bernardino  County  v.  Southern  P.  R.  Co. 
118  U.  S.  417,  30  L.  ed.  125,  6  Sup.  Ct  Rep. 
1144;  San  Mateo  County  v.  Southern  P.  R. 
Co.  7  Sawy.  517,  13  Fed.  145;  Northern  P. 
R.  Co.  V.  Walker,  47  Fed.  685. 

A  constitutional  provision,  like  a  statute, 
must  be  interpreted  in  the  light  of  his- 
tory. 

Briscoe  v.  Bank  of  Kentucky,  11  Pet  332, 
9  L.  ed.  738;  Legal  Tender  Cases,  12  Wall. 
457,  20  L.  ed.  287. 

The  discrimination  effected  by  the  pres- 
ent statute  violates  the  express  provisions 
of  the  Constitution. 

Pollock  V.  Farmers'  Loan  &  T.  Co.  157 
U.  S.  429,  659,  39  L.  ed.  759,  811,  15  Sup. 
Ct  Rep.  673;  Railroad  Tax  Case,  8  Sawy. 
238,  13  Fed.  722;  Santa  Clara  County  t. 
Southern  P.  R.  Co.  9  Sawy.  165,  18  Fed. 
386,  affirmed  in  118  U.  8.  394,  30  L.  ed. 
118,  6  Sup.  Ct.  Rep.  1132;  Gulf,  C.  ft  S.  F. 
R.  Co.  V.  Ellis,  166  U.  S.  150,  165,  41  L. 
ed.  666,  668,  17  Sup.  Ct.  Rep.  255;  SUte 
ex  rel.  White  House  School  Dist.  v.  Read- 
ington,  36  N.  J*  L.  70;  Lexington  v.  Mc- 
Quillan, 9  Dana,  516,  36  Am.  Dec.  159; 
Cope's  Estate,  191  Pa.  22,  45  L.R.A.  616, 
71  Am.  St  Rep.  749,  43  Atl.  79;  Gray, 
Limitations  of  Taxing  Power,  p.  353; 
Cooley,  Const  Lim.  pp.  607,  616;  Citizens' 
Sav.  ft  L.  Asso.  v.  Topeka,  20  Wall.  655, 
22  L.  ed.  456;  United  SUtes  v.  Singer,  15 
556 


WaU.  Ill,  121,  21  L.  ed.  51;  Scholey  ▼. 
Rew,  23  WalL  331,  23  L.  ed.  99 ;  M'Oulloch 
V.  Maryland,  4  Wheat  316,  435,  4  L.  ed. 
579,  608;  Loughborough  v.  Blake,  5  Wheat. 
317,  326,  6  L.  ed.  98,  100;  Ward  v.  Mary- 
land, 12  Wall.  418,  431,  20  L.  ed.  449,  453; 
Southern  R.  Co.  v.  Greene,  216  U.  S.  400, 
54  L.  ed.  536,  30  Sup.  Ct  Rep.  287,  17 
Ann.  Cas.  1247;  Pembina  Consol.  Silver 
Min.  Co.  V.  Pennsylvania,  125  U.  S.  181, 
188,  81  L.  ed.  650,  653,  2  Inters.  Com.  Rep. 
24,  8  Sup.  Ct  Rep.  737.    . 

Progressive  taxation  on  inheritances  does 
not  constitute  a  precedent  for  the  case  at 
bar,  for  such  taxation  is  not  upon  property, 
but  upon  the  right  to  succession,  and  the 
property  taxed  is  not  held  by  the  owner  as 
a  matter  of  right  but  goes  to  the  recipient 
as  a  matter  of  privilege  fr<Hn  the  state. 

Magoun  v.  Illinois  Trust  ft  Sav.  Bank, 
170  U.  S.  283,  288,  42  L.  ed.  1037,  1040,  18 
Sup.  Ct.  Rep.  594;  Knowlton  v.  Moore,  178 
U.  S.  41,  47,  44  L.  ed.  969,  972,  20  Sup.  Ot. 
Rep.  747 ;  Scholey  v.  Rew,  23  WalL  831,  23 
L.  ed.  99. 

There  are  limitations  upon  the  powers 
of  all  governments,  without  any  express 
designation  of  them  in  their  organic  law, 
— limitations  which  inhere  in  their  very 
nature  and  structure. 

United  SUtes  v.  Erie  R.  Co.  106  U.  8. 
327,  834,  27  L.  ed.  151,  156,  1  Sup.  Ct.  Rep. 
223. 

Such  limitations  bind  Congress  in  the 
exercise  of  its  taxing  power. 

Citizens'  Sav.  ft  L.  Asso.  v.  Topeka,  20 
Wall.  655,  662,  22  L.  ed.  455,  461. 

The  5th  Amendment  imposes  a  curb  on 
the  Federal  government  (French  v.  Bar- 
ber Asphalt  Paving  Co.  181  U.  S.  324,  329, 
45  L.  ed.  879,  884,  21  Sup.  Ct.  Rep.  625). 
The  very  words  used  in  the  amendment,  "by 
due  process  of  law,"  have  their  equivalent, 
as  expressed  by  Lord  Coke,  in  the  words, 
"law  of  the  land,"  and  prohibi"^,  among 
other  things,  taking  private  property  for 
public  use  without  just  compensation  (Dav- 
idson V.  New  Orleans,  96  U.  S.  97,  101,  24 
L.  ed.  616,  618).  This  limiUtion  is  as 
old  as  the  principle  of  civilized  govern- 
ment, and  was  by  the  5th  Amendment  in- 
troduced into  the  Constitution  of  the  United 
States  as  a  limitation  upon  the  powers  of 
the  national  government  (Munn  v.  Illinois, 
94  U.  S.  113,  123,  24  L.  ed.  77,  83).  The 
due  process  of  law,  as  thus  described,  pro- 
tects the  citizen  against  the  arbitrary  ex- 
ercise of  the  powers  of  government,  tmre- 
strained  by  the  .established  principle  of 
private  right  and  distributive  justice. 

Bank  of  Columbia  v.  Okely,  4  Wheat 
237,  244,  4  Ix  ed.  659,  661;   OaldweU  ▼. 

840  U.  8. 


1916. 


DODGB  T.  OSBORK. 


11(^118 


Tezfts,  187  U.  8.  692,  697,  84  L.  ed«  816, 
818,  11  Sup.  Ct.  Rep.  224. 

Solicitor  General  DaTla  and  AMiatant 
Attorney  General  Wallace  argued  the 
eauM,  and,  with  Attorney  General  Gr^^ry, 
filed  a  brief  for  defendant  in  error. 

For  their  contentions,  see  their  brief  as 
reported  in  Bruahaber  v.  Union  P.  B.  Oo. 
ante,  493. 

Mr.  Chief  Justice  White  delivered  the 
opinion  of  the  court: 

Both  the  plaintiffs  in  error,  the  one  in 
393  a  corporation  and  the  other  in  394  an 
individual,  paid  under  protest  [117]  to  the 
collector  of  internal  revenue,  taxes  assessed 
under  the  income  tax  section  of  the  tariff 
act  of  October  8,  1913  (sec.  II.,  chap.  16,  38 
Stat,  at  li  166,  Comp.  Stat.  1913,  §  6319). 
After  an  adverse  ruling  by  the  Commission- 
er of  Internal  Revenue  on  appeals  which 
were  prosecuted  conformably  to  the  statute 
( Rev.  Stat.  §S  3220,  3226,  Comp.  Stot.  1913, 
§§  5944,  6949)  by  both  the  parties  for  a 
refunding  to  them  of  the  taxes  paid,  these 
suits  were  commenced  to  recover  the 
amounts  paid  on  the  ground  of  the  repug- 
nancy to  the  Constitution  of  the  section  of 
the  statute  under  which  the  taxes  had  been 
collected,  and  the  cases  are  here  on  direct 
writs  of  error  to  the  judgments  of  the 
court  below,  sustaining  demurrers  to  both 
complaints  on  the  ground  that  they  stated 
no  cause  of  action. 

Every  contention  relied  upon  for  reversal 
In  the  two  cases  is  embraced  within  the  fol- 
lowing propositions:  (a)  that  the  tax  im- 
posed by  the  statute  was  not  sanctioned  by 
the  16th  Amendment  because  the  statute  ex- 
ceedcd  the  exceptional  and  limited  power  of 
direct  income  taxation  for  the  first  time 
conferred  upon  Congress  by  that  Amend- 
ment, and,  being  outside  of  the  Amendment, 
and  governed  solely,  therefore,  by  the  gen- 
eral taxing  authority  conferred  upon  Con- 
gress by  the  Constitution,  the  tax  was  void 
as  an  attempt  to  levy  a  direct  tax  without 
apportionment  under  the  rule  established 
by  Pollock  V.  Farmers'  Loan  &  T.  Co.  157 
U.  S.  429,  39  L.  ed.  759,  15  Sup.  Ct.  Rep. 
673;  158  U.  S.  601,  39  L.  ed.  1108,  15  Sup. 
Ct  Rep.  912;  (b)  that  the  statute  is, 
moreover,  repugnant  to  the  Constitution  be- 
cause of  the  provision  therein  contained  for 
its  retroactive  operation  for  a  designated 
time,  and  because  of  the  illegal  discrimina- 
tions and  inequalities  which  it  creates,  in- 
cluding the  provision  for  a  progressive  tax 
en  the  income  of  individuals  and  the  method 
provided  in  the  statute  for  computing  the 
taxable  income  of  corporations. 

But  we  need  not  now  enter  into  an  origi- 
nal consideration  of  the  merits  of  these  con- 
66  li.  ed. 


I  tentions  because  each  and  all  of  them  were 
eonsidered  and  adversely  disposed  of  in 
Brushaber  v.  Union  P.  R.  Co.  240  U.  S.  1, 
ante,  493,  36  Sup.  Ct.  Rep.  236.  That  case 
[118]  therefore,  is  here  absolutely  con- 
trolling and  decisive.  It  follows  that  for 
the  reasons  stated  in  the  opinion  in  the 
Brushaber  Case,  the  judgments  in  these 
cases  must  be  and  they  are  affirmed. 

Mr.  Justice  McReynolds  took  no  part  in 
the  consideration  and  decision  of  these  cases. 


JOHN  F.  DODGE  and  Horace  E.  Dodge, 

Appts., 

V. 

WILLIAM  H.  OSBORN,  Commissioner  of 
Internal  Revenue. 

(See  8.  0.  Reporter's  ed.  118-122.) 

Injunction  —  against  Income  tax  —  re- 
covery Iwck  of  taxes  paid. 

1.  The  inhibition  of  U.  S.  Rev.  Stat. 
§  3224  (Comp.  SUt.  1913,  §  5947),  against 
suits  to  restrain  the  assessment  or  collec- 
tion of  a  tax,  and  the  provisions  of  §§  3220, 
3226,  3227  (Comp.  Stat.  1013,  §§  5944, 
5949,  5950),  making  an  appeal  to  the  Ck)m- 
miesioner  of  Internal  Revenue  after  pay- 
ment and  his  refusal  to  refund  prerequisites 
to  a  suit  to  recover  taxes  erroneously  or  il- 
legally assessed  and  collected,  are  made  ap- 
plicable to  taxes  imposed  under  the  income 
tax  section  of  the  tariff  act  of  October  3, 
1913  (38  SUt.  at  L.  166,  chap.  16),  by  H  L 
of  that  act,  which  provides  that  all  admin- 
istrative, special,  and  general  provisions  of 
layr,  including  the  laws  in  relatipn  to  the 
assessment,  remission,  collection,  and  re- 
fund of  internal  revenue  taxes  not  hereto- 
fore specifically  repealed,  and  not  inconsist- 
ent with  the  provisions  of  this  section,  are 
hereby  extended  and  made  applicable  to  all 
the  provisions  of  this  section  and  to  the  tax 
herein  imposed. 

[For  other  cases,  see  Injunction.  I.  k ;  Taxes, 
III.  g.  2,  in  Digest  Sop.  Ct.  1908.) 

Injunction  —  against      tax  —  Income 

taxes. 

2.  The  courts  are  precluded,  by  the  in- 
hibition of  U.  S.  Rev.  Stat.  §  3224,  Comp. 
Stat.  1913,  S  5947,  against  suits  to  restrain 
the  assessment  or  collection  of  any  tax, 
from    taking   jurisdiction    of   a    bill    filed 

Note. — On  injimction  to  restrain  the  col- 
lection of  illegal  taxes — see  notes  to  Odlin  v. 
Woodruff,  22  L.RJL.  699;  Dows  v.  Chicago, 
20  L.  ed.  U.  S.  65;  and  Ogden  City  v.  Arm- 
strong, 42  Lw  ed.  U.  S.  445. 

As  to  what  constitutes  due  process  of  law, 
generally — see  notes  to  People  v.  O'Brien, 
2  L.R»A..  255;  Kunts  v.  Sumption,  2  L.RJL 
655;  Re  Gannon,  5  L.RJL  359;  Ulman  v. 
Baltimore,  11  L.RJL  224;  Oilman  v.  Tuck- 
er, 13  L.R.A.  304;  Pearson  v.  Yewdall,  24 
L.  ed.  U.  S.  436;  and  Wilson  v.  North  Caro- 
lina, 42  L.  ed.  U.  S.  865. 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tknc^ 


against  the  CommiRsioner  of  Internal  Reve- 
nue to  enjoin  the  assessment  and  collection 
of  the  taxes  imposed  bv  the  income  tax  sec- 
tion of  the  tariff  act  of  October  3,  1013  (38 
Stat,  at  L.  166,  chap.  16),  on  the  ground 
that  that  statute  is  void  for  repugnancy  to 
the  Constitution  of  the  United  States. 
[For  other  cases,  see  Injunction,  I.  k,  in 
Digest  Sup.  Ct.  1908.] 

Injanction  —  against      tax  —  income 
taxes. 

8.  Allegations  in  a  bill  filed  against  the 
Commissioner  of  Internal  Revenue  to  enjoin 
the  assessment  and  collection  of  the  taxes 
imposed  by  the  income  tax  section  of  the 
tariff  act  of  October  8,  1913  (38  SUt.  at 
L.  166,  chap.  16),  that  unless  the  taxes  are 
enjoined  many  suits  by  other  persons  will 
be  brought  for  the  recovery  of  the  taxes 
paid  by  them,  and  that  by  reason  of  U.  S. 
Rev.  Stat.  §  3187,  Comp.  Stot.  1913,  §  5900, 
making  the  tax  a  lien  on  plaintiff's  prop- 
erty, the  assessment  of  the  taxes  would  con- 
stitute a  cloud  on  plaintiff's  title,  do  not 
take  the  case  out  of  the  rule  that  under 
S  3224,  Comp.  Stat.  1913,  §  5947,  a  suit 
may  not  be  brought  to  enjoin  the  assess- 
ment or  collection  of  a  tax  because  of  the 
alleged  unconstitutionality  of  the  statute 
imposing  it,  even  assuming  that  this  doc- 
trine has  no  application  to  a  case  where, 
whoUv  independent  of  any  claim  of  the  un- 
constitutionality of  the  tax  sought  to  be 
enjoined,  additional  equities  sufficient  to 
sustain  jurisdiction  are  alleged. 
[For  other  cases,  see  Injunction,  I.  k,  in 
Digest  Sup.  Ct.  1908.1 

Constitntional  law  —  due  process  of  law 
—  relief  against  illee:al  tax. 

4.  There  is  no  want  of  due  process  of 
law  in  the  provisions  of  U.  S.  Rev.  Stat. 
§§  3220,  3226,  3227,  Comp.  SUt.  1913, 
§§  5944,  .5949,  5950, 'makinc  an  appeal  to 
the  Commissioner  of  Internal  Revenue  after 
payment  and  his  refusal  to  refund  prere- 
quisites to  a  suit  to  recover  taxes  erroneous- 
ly or  illegally  assessed  and  collected. 
[For  other  cases,  see  Constitutional  Law, 
629-678.  in  Digest  Sup.  Ct.  1908.] 

[No.  396.] 

Submitted  October  12,  1915.     Decided  Feb- 
ruary 21,  1916. 

APPEAL  from  the  Court  of  Appeals  of 
the  District  of  Columbia  to  review  a 
decree  which  affirmed  a  decree  of  the  Su- 
preme Court  of  the  District,  dismissing,  for 
want  of  jurisdiction,  the  bill  in  a  suit  to 
enjoin  the  assessment  and  collection  of  in- 
come taxes.    Affirmed. 

See  same  case  below,  43  App.  D.  C.  144. 
The  facts  are  stated  in  the  opinion.         . 

Hr.  Fred  A.  Baker  submitted  the  cause 
for  appellants: 

A  distinction  exists  between  official 
action  which  is  an  unlawful  assumption  of 
authority  that  has  not  been  conferred,  and 


a  mistaken,  erroneous,  or   irregular   exer- 
cise of  authority. 

De  Lima  v.  Bidwell,  182  U.  S.  1,  46  L* 
ed.  1041,  21  Sup.  a.  Rep.  743;  Ogden  City 
V.  Armstrong,  168  U.  S.  224,  240,  42  L.  ed» 
444,  452,  18  Sup.  Ct.  Rep.  98;  2  Gneist^ 
History  of  Eng.  Const.,  p.  369;  Colonial 
Bank  v.  Willan,  L.  R.  5  P.  C.  417,  43  L. 
J.  P.  C.  N.  S.  39,  30  L.  T.  N.  S.  237,  22 
Week.  Rep.  516;  Reg.  v.  Cheltenham,  1  Q. 

B.  474,  1.  Gale  &  D.  167,  10  L.  J.  Mag.  Gas. 
N.  S.  99.. 

An  unconstitutional  act  of  Congress  or 
of  a  state  l^islature  confers  no  jurisdiction 
or  authority. 

Osborn  v.  Bank  of  United  States,  9 
Wheat.  738,  868,  6  L.  ed.  204,  235;  Piper 
V.  Pearson,  2  Gray,  120,  61  Am.  Dec.  438; 
Kelly  V.  Bemis,  4  Gray,  83,  64'  Am.  Dec. 
50;  Lynn  v.  Polk,  8  Lea,  129. 

The  right  to  an  injunction  in  cases  with- 
in the  jurisdiction  of  a  court  of  equity  is 
a  constitutional  rights  which  cannot  be 
destroyed  or  seriously  impaired  by  any  act 
of  Congress. 

Hepburn  v.  Griswold,  8  Wall.  603,  19  L. 
ed.  513;  Green  v.  Biddle,  8  Wheat.  1,  6 
L.  ed.  547;  Park  v.  Detroit  Free  Press  Oo. 
72  Mich.  566,  1  L.R.A.  599,  16  Am.  St. 
Rep.  544,  40  N.  W.  731. 

The  case  of  the  plaintiffs  is  within  recog- 
nised grounds  of  equitable  jurisdiction. 

Ogden  City  v.  Armstrong,  168  U.  S.  224, 
42  L.  ed.  444,  18  Sup.  Ct.  Rep.  98;  Wilson 
V.  Lambert,  168  U.  S.  611,  42  L.  ed.  590, 
18  Sup.  Ct.  Rep.  217;  Cummings  v.  Mer- 
chants' Nat.  Bank,  101  U.  S.  153.  25  L.  ed. 
903;  Hills  v.  National  Albany  Exch.  Bank,. 
105  U.  S.  319,  26  L.  ed.  1052;  SUnl^y  v. 
Albany  County,  121  U.  S.  535,  30  L.  ed. 
1000,  7  Sup.  Ct.  Rep.  1234;  Fargo  v.  Hart» 
193  U.  S.  490,  48  L.  ed.  761,  24  Sup.  Ct. 
Rep.  498;  Raymond  v.  Chicago  Union  Trac- 
tion Co.  207  U.  S.  20,  52  L.  ed.  78,  28  Sup. 
Ct.  Rep.  7,  12  Ann.  Cas.  757;  Western  U. 
Teleg.  Co.  v.  Andrews,  216  U.  S.  165,  54 
L.  ed.  430,  30  Sup.  Ct.  Rep.  286;  Journal 
of  Commerce  k  C.  Bulletin  v.  Burleson, 
220  U.  S.  600,  57  L.  ed.  1347,  33  Sup.  Ct. 
Rep.  464;  Vesta  Mills  v.  Charleston,  60  S. 

C.  1,  38  S.  E.  226;  Dows  v.  Chicago,  11 
Wall.  108,  20  L,  ed.  65;  Union  P.  R.  Co.  ▼. 
Cheyenne  (Union  P.  R.  Co.  v.  Ryan)  lia 
U.  S.  516,  28  L.  ed.  1098,  5  Sup.  Ct.  Rep. 
601;  Shelton  v.  Piatt,  139  U.  S.  591,  35  L. 
ed.  273,  11  Sup.  Ot.  Rep.  646;  Ohio  Tax 
Cases,  232  U.  S.  576,  587,  58  L.  ed.  737^ 
743,  34  Sup.  Ct.  Rep.  372;  Rogers  v.  Nich- 
ols, 186  Mass.  440,  71  N.  £.  950 ;  Stevens  y. 
Mulligan,  •  167  Mass.  84,  44  N.  E.  1086; 
Loring  v.  Hildreth,  170  Mass.  328,  40 
LwR.A.  127,  64  Am.  St.  Rep.  301,  49  N.  E. 

240  U.  8» 


1015. 


DODGE  V.  OSBORN. 


119-121 


C52;  White  ▼.  Gore,  183  Man.  333,  07 
N.  E.  359. 

The  revenue  oiBcers  of  the  United  States 
are  personally  liable  in  common -law  and 
equitable  actions  for  acts  not  within  their 
authority  or  jurisdiction. 

2  Anson,  Law  ft  Custom  of  the  Const,  pp. 
231,  477 ;  Dicey,  Law  of  the  Const,  pp.  320, 
321;  Leach  t.  Money,  19  How.  St.  Tt.  1001; 
Wilkes  V.  Wood,  19  How.  St.  Tr.  1163; 
Wilkes  V.  Lord  Halifax,  19  How.  St.  Tr. 
1406;  2  Stephen,  History  of  Grim.  Law,  61; 
1  Bryoe,  Am.  Com.  p.  239;  United  States 
T.  Peters,  5  Cranch,  115,  3  L.  ed.  53;  Meigs 
T.  M'Clung,  9  Cranch,  11,  3  L.  ed.  639;  Oa- 
bom  T.  Bank  of  United  States,  9  Wheat. 
738,  868,  6  L.  ed.  204,  235;  United  States 
T.  Lee,  106  U.  S.  196,  27  L.  ed.  171,  1  Sup. 
Ct  Rep.  240. 

Solicitor  General  DaTin  and  Assistant  At- 
torney General  Wallace  submitted  the 
cause  for  appellee.  Attorney  General  Greg- 
ory was  on  the  brief. 

For  their  contentions,  see  their  brief  as 
reported  in  Brushaber  ▼.  Union  P.  R.  Oo. 
ante,  493. 

Mr.  Chief  Justice  White  delivered  the 
opinion  of  the  court: 

The  appellants  filed  their  bill  in  the  su- 
preme court  of  the  District  of  Columbia 
against  the  Commissioner  of  Internal  Reve- 
nue to  enjoin  the  assessment  and  collection 
of  the  taxes  imposed  by  the  income  tax  sec- 
tion of  the  tariff  act  of  October  3,  1913  ( 38 
Stat,  at  L.  166,  181,  chap.  16),  and  especial- 
ly the  surtaxes  therein  provided  for,  on  the 
ground  that  the  statute  was  void  for  repug- 
nancy to  the  Constitution  of  the  United 
States.  The  case  is  here  on  appeal  from  the 
judgment  of  the  court  below,  affirming  the 
action  of  the  trial  court  in  sustaining  a 
motion  to  dismiss  the  complaint  for  want 
of  jurisdiction  because  the  complainants 
had  an  adequate  remedy  at  law,  and  because 
of  the  provision  of  S  3224,  Revised  Statutes 
(Comp.  Stat.  1913,  g  5947),  that  ''no  suit 
for  the  purpose  of  restraining  the  assess- 
ment or  collection  of  any  tax  shall  be  main- 
tained in  any  couri." 

We  at  once  put  out  of  view  a  contention 
that  §  3224  is  not  applicable  to  taxes  im- 
posed by  the  income  tax  law  since  we  are 
clearly  of  the  opinion  that  [120]  it  is 
within  the  contemplation  of  paragraph  L  of 
the  act  which  provides: 

That  all  administrative,  special,  and 
general  provisions  of  law,  inehidiiig  the 
laws  in  relation  to  the  asseasment,  remis- 
sion, collection,  and  refund  of  internal- 
revenue  taxes  not  heretofore  specifieally  re- 
pealed and  not  inconsistent  with  the  pro- 
60  li.  ed. 


I  visions  of  this  section,  are  hereby  extended 
and  made  applicable  to  all  the  provisions  of 
this  section  and  to  the  tax  herein  imposed." 
And  for  the  same  reason  we  do  not  further 
notice  a  contention  as  to  the  inapplicability 
of  §S  3220,  3226,  and  3227  (Comp.  Stat. 
1913,  SS  5944,  5949,  5950),  to  which  effect 
was  given  by  the  court  below,  requiring  an 
appeal  to  the  Commissioner  of  Internal 
Revenue  after  payment  of  a  tax  claimed  to 
have  been  erroneously  or  illegally  assessed 
and  collected,  and,  upon  his  refusal  to  re- 
turn the  sum  paid,  giving  a  right  to  sue  for 
its  recovery. 

The  question  for  decision,  therefore,  is 
whether  the  sections  of  the  Revised  Statutes 
referred  to  are  controlling  as  to  the  case  in 
hand.  The  plain  purpose  and  scope  of  the 
sections  are  thus  stated  in  Snyder  v.  Marks, 
109  U.  8.  189,  193,  194,  27  L.  ed.  901,  903,  3 
Sup.  Ct.  Rep.  157,  a  suit  brought  to  enjoin 
the  collection  of  a  revenue  tax  on  tobacco: 

'<The  inhibition  of  S  3224  (Comp.  Stati 
1913,  §  5947),  applies  to  all  assessments  of 
taxes,  made  under  color  of  their  offices,  by 
internal  revenue  officers  charged  with  gen- 
eral jurisdiction  of  the  subject  of  assessing 
taxes  against  tobacco  manufacturers.  The 
remedy  of  a  suit  to  recover  back  the  tax 
after  it  is  paid  is  provided  by  statute,  and 
a  suit  to  restrain  its  collection  is  forbidden. 
The  remedy  so  given  is  exclusive,  and  no 
other  remedy  can  be  substituted  for  it. 
.  .  .  Clieatham  v.  United  States  (Cheat- 
ham V.  Norvekl)  92  U.  S.  85,  88,  23  L.  ed. 
561,  562,  and  again  in  State  R.  Tax  Cases, 
92  U.  S.  575,  613,  23  L.  ed.  663,  673,  it  was 
said  by  this  court,  ^at  the  system  pre- 
scribed by  the  United  States  in  regard  to 
both  customs  duties  and  internal  revenue 
taxes,  of  stringent  measures,  [121]  not 
judicial,  to  collect  them,  with  appeals  to 
specified  tribunals,  and  suits  to  recover 
back  moneys  illegally  exacted,  was  a  sys- 
tem of  corrective  justice  intended  to  be 
complete^  and  enacted  under  the  right  be- 
longing to  the  government  to  prescribe  the 
conditions  on  which  it  would  subject  itself 
to  the  judgment  of  the  courts  in  the  col- 
lection of  its  revenues.  In  the  exercise  of 
that  rif^t,  it  declares,  by  |  3224,  that  iU 
officers  shall  not  be  enjoined  from  collect- 
ing a  tax  claimed  to  have  been  unjustly  as- 
sessed, when  those  officers,  in  the  course  of 
general  jurisdiction  over  the  subject-matter 
in  question,  have  made  the  assignment  [as- 
sessment] and  claim  that  it  is  valid.*' 

And  this  doctrine  has  been  repeatedly  ap- 
plied until  it  is  no  longer  open  to  quMtion 
that  a  suit  may  not  be  brought  to  enjoin  the 
assessment  or  collection  of  a  tax  because  of 
the  alleged  unconstitutionality  of  the  stat- 


121,  122 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Teim, 


ute  imposing  it.  Shelton  v.  Piatt,  139  U.  S. 
591,  35  L.  ed.  273,  11  Sup.  Ct.  Rep.  646; 
Pittsburgh,  C.  C.  &  St.  L.  R.  Go.  v.  Board  of 
Public  Works,  172  U.  S.  32,  43  L.  ed.  354, 
19  Sup.  Ct.  Rep.  90;  Pacific  Steam  Whaling 
Go.  V.  United  SUt«s,  187  U.  S.  447,  451,  452, 
47  L.  ed.  253,  255,  256,  23  Sup.  Ct.  Rep.  154. 

But  it  is  contended  that  this  doctrine  has 
no  application  to  a  case  where,  whollj  inde- 
pendent of  anj  claim  of  the  unconstitu- 
tionality of  the  tax  sought  to  be  enjoined, 
additional  equities  sufficient  to  sustain 
jurisdiction  are  alleged,  and  this,  it  is  as- 
serted, being  such  a  case,  falls  within  the  ex- 
ception to  the  general  rule.  But,  conceding 
for  argument's  sake  only  the  legal  premise 
upon  which  the  contention  rests,  we  think 
the  conclusion  that  this  case  falls  within 
such  exception  is  wholly  without  merit, 
since,  after  an  examination  of  the  com- 
plaint, we  are  of  the  opinion  that  no  ground 
.for  equitable  jurisdiction  is  alleged.  It  is 
true  the  complaint  contains  averments  that 
unless  the  taxes  are  enjoined  many  suits  by 
other  persons  will  be  brought  for  the  re- 
covery of  the  taxes  paid  by  them,  and  also 
that  by  reason  of  §  3187,  Rev.  Stat.  (Comp. 
Stat.  1913,  §  5909),  making  the  Ux  a  lien 
on  plaintiffs'  property,  the  assessment  of  the 
taxes  would  constitute  a  cloud  on  plaintiffs' 
[122]  title.  But  these  allegations  are 
wholly  inadequate  under  the  hypothesis 
which  we  have  assumed  solely  for  the  sake 
of  the  argument,  to  sustain  jurisdiction, 
since  it  is  apparent  on  their  face  they  al- 
lege no  ground  for  equitable  relief  inde- 
pendent of  the  mere  complaint  that  the  tax 
is  illegal  and  unconstitutional  and  should 
not  be  enforced, — allegations  which,  if  rec- 
ognized as  a  basis  for  equitable  jurisdiction, 
would  take  every  case  where  a  tax  was  as- 
sailed because  of  its  unconstitutionality  out 
of  the  provisions  of  the  statute,  and  thus 
render  it  nugatory,  while  it  is  obvious  that 
the  statute  plainly  forbids  the  enjoining  of 
a  tax  unless  by  some  extraordinary  and  en- 
tirely exceptional  circumstance  its  pro- 
visions are  not  applicable. 

There  is  a  contention  that  the  provisions 
requiring  an  appeal  to  the  Commissioner  of 
Internal  Revenue  after  payment  of  the 
taxes,  and  giving  a  right  to  sue  in  case  of 
his  refusal  to  refund,  are  wanting  in  due 
process,  and  therefore  there  is  jurisdiction. 
But  we  think  it  suffices  to  state  that  con- 
tention to  demonstrate  its  entire  want  of 
merit. 

Affirmed* 

Mr.  Justice  McReynolda  took  no  part  in 
the  consideration  and  decision  of  this  case. 


JOHN  F.  DODOE  and  Horace  E.  Dodge, 

Appts., 

V. 

JAMES  J.  BRADY,  Collector  of  Internal 

Revenue. 

(See  8.  C.  Reporter's  ed.  122-126.) 

ApiMal  —  reversible  error  —  lack  of 
jurladlction  »  suit  to  recorer  taxes 
wrongfully  collected. 

A  Federal  district  court  cannot  be 
said  to  have  committed  reversible  error  in 
assuming  to  pass  upon  the  merits  of  a  con- 
troversy presented  by  a  supplemental  bill 
alleging  that,  since  the  filing  of  the  original 
bill  to  enjoin  the  collector  of  internal  reve- 
nue from  collecting  the  surtaxes  assessed 
under  the  income  tax  section  of  the  tariff 
act  of  October  3,  1913  (38  SUt.  at  L.  166, 
chap.  16,  Comp.  SUt.  1913,  §§  6319- 
6336),  on  the  ground  of  its  unconstitu- 
tionality, the  Commissioner  of  Internal 
Revenue  had  ruled  adverselv  upon  plaintiffs' 
protest,  and  that  they  had  thereupon  paid 
the  taxes  under  protest,  and  prayins  a  re- 
covery of  the  amount  paid  to  the  ccMleotoTy 
and  the  other  relief  asked  in  the  original 
bill,  notwithstanding  the  failure  of  such 
supplemental  bill  to  allege  a  compliance 
with  the  conditions  imposed  by  U.  S.  Rev. 
Stat.  §§  3220,  3226,  Comp.  Stat.  1913, 
§§  5944,  5949,  as  prerequisites  to  a  suit  to 
recover  taxes  wrongfully  collected,  vim,,  an 
appeal  to  the  Commissioner  of  Internal 
Revenue  after  payment,  and  his  refusal  to 
refund. 

[For  other  cases,  see  Appeal  and  Brror. 
5189-5196.  in  Direst   Sup.  Ct.  1908.] 

[No.  213.] 


Argued  October  14  and  15,  1915. 
February  21,  1916. 


APPEAL  from  the  District  Court  of  the 
United  States  for  the  Eastern  District 
of  Michigan  to  review  a  decree  dismissing 
a  suit  to  enjoin  the  collection  of  an  income 
tax,  and  to  recover  the  amount  of  the  tax 
paid  imder  protest.  Affirmed. 
The  facts  are  stated  in  the  opinion. 

Mr.  William  D.  Guthrie  argued  the 
cause,  and,  with  Mr.  Fred  A.  Baker,  filed  a 
brief  for  appellants : 

Even  if  it  could  be  shown  affirmatively 
that  the  abuse  of  the  taxing  power  was  not 
in  the  minds  of  the  people  of  the  United 
States  at  the  time  the  5th  Amendment  waa 
adopted,  and  that  the  framers  apprehended 
no  danger  from  abuse  and  discriminations 
in  the  exercise  of  that  power,  this  would 
not  limit  the  scope  of  the  Amendment  if 
the  case  now  presented  came  fairly  within 
its  general  spirit  and  letter. 

Dartmouth  College  v.  Woodward,  4* 
Wheat.  518,  644,  4  L.  ed.  629,  661. 

Had   the   first   Congresa   deliberated   at 

S40  U.  8. 


1916. 


DODGE  V.  BRADT. 


124,  126 


kngth  upon  the  dioioe  of  a  proritioii  which 
ifwdd  be  more  effective  than  any  other  to 
prerent  an  abuse  of  the  taxing  power,  it 
^aold  not  have  selected  one  more  appro- 
priate than  "due  process  of  law."  The 
phrase  "due  process  of  law/'  or  its  equiva- 
lent, "the  law  of  the  land/'  long  antedated 
the  establishment  of  our  political  institu- 
tions. It  embodied  then,  as  now,  the  most 
fundamental  and  far-reaching  maxim  of 
•constitutional  law  and  political  justice,  and 
it  represented  the  broadest  and  most  com- 
prehensive guaranty  of  personal  and  prop- 
erty rights.  In  fact,  there  are  no  words 
in  our  Ir  nguage  which  signify  or  mean  more 
ia  respect  of  the  rights  and  liberties  of  the 
individual. 

Monongahela  Nav.  Co.  v.  United  States, 
148  U.  S.  312,  324,  336,  37  L.  ed.  463,  467, 
471,  13  Sup.  Ot  Rep.  622. 

The  prohibition  against  the  deprivation 
<i  property  without  due  process  of  law 
cannot  mean  one  thing  under  the  5th 
Amendment  and  another  thing  under  the 
14th  Amendment. 

Wij^t  V.  Davidson,  181  U.  8.  371,  377, 
45  L.  ed.  000,  903,  21  Sup.  Ot.  Rep.  616; 
Twining  ▼.  New  Jersey,  211  U.  8.  78,  101, 
63  L.  ed.  97,  107,  29  Sup.  Ct.  Rep.  14; 
French  ▼.  Barber  Asphalt  Paving  Co.  181 
U.  8.  324,  329,  45  L.  ed.  879,  884,  21  Sup. 
Ct  Rep.  625. 

Any  provision  of  an  act  of  Congress  im- 
posing an  unequal  and  discriminatory  tax 
hy  means  of  unreasonable  and  arbitrary 
selection  among  those  of  the  class  taxed 
Would  conflict  with  the  provisions  of  U.  S. 
Const.  5th  Amendment,  by  depriving  the 
individual  of  property  without  due  process 
of  law,  or  taking  private  property  for  pub- 
lic use  without  just  compensation. 

Southwestern  Oil  Co.  v.  Texas,  217  U.  S. 
114,  119,  64  L.  ed.  688,  691,  30  Sup.  a. 
Rep.  496;  Santa  Clara  County  v.  Southern 
P.  R  Co.  9  Sawy.  ]  65,  18  Fed.  399,  affirmed 
hi  118  U.  S.  394,  30  L.  ed.  118,  6  Sup.  Ct. 
Rep.  1132. 

The  grant  of  power  to  tax  in  and  of 
itself  implies  the  limitation  that  a  tax 
Dmst  necessarily  be  a  common  burden, 
-equally  imposed  upon  all  of  the  same  class, 
-owning  the  same  kinds  of  property,  having 
the  same  kind  of  income,  doing  the  same 
•iets,  or  exercising  the  same  privileges. 

Pollock  V.  Farmers'  Loan  k  T.  Co.  157  U. 
5.  429,  5&9,  39  L.  ed.  759,  825,  15  Sup.  Ct. 
Rep.  673;  State  v.  United  States  k  C.  Exp. 
Co.  60  N.  H.  236;  SUte  ex  rel.  White  House 
tSchool  Dist.  V.  ReadinFt/»n  Twp.  36  N. 
/.  L.  70;  Cooley,  Taxn.  3d  ed.  pp.  4,  260; 
Cooley,  Ccmst.  Law,  3d  ed.  p.  356. 
40  li.  ed. 


Mr.  Fred  A.  Baker  filed  a  separate  brief 
for  appellants: 

The  Secretary  of  the  Treasury  cannot  be 
authorized  to  determine  without  notice  or 
a  hearing  whether  a  corporation  has  accu- 
mulated a  surplus  in  excess  of  the  needs  and 
purposes  of  the  business. 

Coe  V.  Armour  Fertilizer  Works,  237  U. 
S.  413,  59  L.  ed.  1027,  35  Sup.  Ct.  Rq>. 
625;  Stuart  v.  Palmer,  74  N.  Y.  188,  30 
Am.  Rep.  289;  Security  Trust  k  S.  V.  Co. 
V.  Lexington,  203  U.  S.  323,  333,  51  L.  ed. 
204,  208,  27  Sup.  Ct.  Rep.  87;  Central  of 
Georgia  R.  Co.  v.  Wright,  207  U.  S.  127, 
52  L.  ed.  134,  28  Sup.  Ct.  Rep.  47,  12  Ann. 
Cas.  463;  Roller  v.  Holly,  176  U.  8.  398, 
409,  44  L.  ed.  520,  624,  *20  Sup.  Ct.  Rep. 
410;  Louisville  k  N.  R.  Co.  v.  Central 
Stock  Yards  Co.  212  U.  8.  132,  144,  63 
L.  ed.  441,  446,  29  Sup.  Ot.  Rep.  246. 

There  are  some  limitations  on  the  power 
to  tax  which  are  inherent  in  the  forms  of 
constitutional  government  which  prevail  in 
the  United  States,  and  in  the  nature  of  our 
institutions. 

Miller,  Const,  p.  241 ;  Citizens'  Sav.  k  L. 
Asso.  V.  Topeka,  20  Wall.  655,  22  L.  ed. 
455. 

Some  rule  of  uniformity  and  equality  is 
absolutely  essential  to  any  valid  taxation. 

Sutton  V.  Louisville,  5  Dana,  31;  Lex- 
ington V.  McQuillan,  9  Dana,  513,  35  Am. 
Dec.  159;  Howell  v.  Bristol,  8  Bush,  493; 
State  ex  rel.  White  House  School  Dist.  v. 
Readington  Twp.  36  N.  J.  L.  66 ;  People  ex 
rel.  Griffin  v.  Brooklyn,  4  N.  Y.  420,  55 
Am.  Dec.  266;  State  v.  Travelers'  Ins.  C^. 
73  Conn.  255,  57  L.R.A.  481,  47  Atl.  299. 

Taxes  cannot  be  levied,  or  money  in  the 
treasury  be  appropriated,  for  the  relief  of 
taxpayers. 

Cooley  V.  Granville,  10  Cush.  56;  Hooper 
V.  Emery,  14  Me.  375;  Weeks  v.  Milwaukee, 
10  Wis.  243;  Brewer  Brick  Co.  v.  Brewer, 
62  Me.  62,  16  Am.  Rep.  395. 

Solicitor  General  Davis  and  Assistant 
Attorney  General  Wallace  argued  the 
cause,  and,  with  Attorney  General  Gregory, 
filed  a  brief  for  appellee. 

For  their  contentions,  see  their  brief  as 
reported  in  Brushaber  v.  Union  P.  R.  Co. 
ante,  493. 


Mr.  Chief  Justice  White  delivered  the 
opinion  of  the  court: 

The  appellants  are  the  same  persons  who 
sued  in  Dodge  v.  Osbom,  just  decided  [240 
U.  8.  118,  ante,  557,  36  Sup.  Ct.  Rep.  276]. 
After  the  dismissal  of  that  suit  by  the  su- 
preme court  of  the  District  of  Columbia  for 
want  of  jurisdiction,  the  parMes,  on  June 
10,  1914,  filed  their  bill  in  the  court  below 
against  the  collector  [125]  of  internal  rev- 
36  t^%^. 


125-127 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tkem^ 


enue,  to  enjoin  the  collection  of  the  surtaxes 
asBessed  against  them,  which  were  disputed 
in  the  previous  case  on  substantially  the 
same  grounds  alleged  in  the  complaint  in 
that  case.  The  bill  alleged,  however,  that 
plaintiffs  had  filed  with  the  collector  "an 
appeal  or  claim  for  the  remission  and 
abatement  of  the  surtaxes"  because  of  the 
unconstitutionality  of  the  statute  imposing 
them,  and  that  the  Commissioner  of  Inter- 
nal Revenue  to  whom  the  claim  had  been 
forwarded  by  the  collector  had  such  protest 
under  advisement.  Upon  the  filing  of  the 
bill  the  plaintiffs  moved  for  a  preliminary 
injunction  which  was  denied  July  29,  1914. 
On  the  same  day,  by  leave  of  court,  a  sup- 
plemental bill  was  filed  which  alleged  that 
since  the  filing  of  the  original  bill  the  Com- 
missioner of  Internal  Revenue  had  ruled 
adversely  upon  plaintiffs'  protest,  and  that 
thereupon  they  had  paid  the  surtaxes  to  the 
collector  under  protest,  and  they  prayed  a 
recovery  of  the  amount  paid  to  tiie  collector 
and  for  the  other  relief  asked  in  the  orig- 
inal bill.  The  defendant  moved  to  dismiss 
the  bill  for  want  of  jurisdiction  because  the 
suit  was  brought  to  enjoin  the  collection  of 
a  tax,  contrary  to  the  provisions  of  §  3224, 
Revised  Statutes  (Comp.  Stat.  1913,  § 
5947),  and  for  want  of  equity  because  the 
income  tax  law  was  constitutional  and 
valid.  The  court  sustained  the  motion  on 
the  latter  ground  and  dismissed  the  bill  on 
the  merits,  and  the  case  is  here  on  direct 
appeal  because  of  the  constitutional  ques- 
tions. 

The  government  insists  that  the  court  be- 
low was  without  jurisdiction  to  decide  the 
merits,  and  we  come  first  to  that  question. 
It  is  apparent  if  the  original  bill  alone  is 
taken  into  view  that  the  suit  was  brought 
to  enjoin  the  collection  of  a  tax,  and  the 
court  was  without  jurisdiction  for  the  rea- 
sons stated  in  the  previous  case.  And  it  is 
argued  by  the  government  that  there  was  no 
jurisdiction  under  the  supplemental  bill, 
since  it  fails  to  allege  that  an  appeal  was 
taken  to  the  Commissioner  of  Internal  Rev- 
enue after  the  payment  of  the  taxes,  and 
that  he  refused  [126]  to  refund  them,  and 
therefore  fails  to  allege  a  compliance  with 
the  conditions  imposed  by  §§  3220  and  3226 
of  the  Revised  Statutes  (Comp.  SUt.  1913, 
§§  5944,  5949 ) ,  as  prerequisites  to  a  suit  to 
recover  taxes  wrongfully  collected.  But, 
broadly  considering  the  whole  situation, 
and  taking  into  view  the  peculiar  facts  of 
the  case,  the  protest  to  the  Commissioner, 
and  his  exertion  of  authority  over  it,  and 
his  adverse  ruling  upon  the  merits  of  the 
tax,  thereby  passing  upon  every  question 
which  he  would  be  called  upon  to  decide  on 
an  appeal  for  a  refunding  of  the  taxes  paid, 
we  think  that  this  case  ii  lo  exceptional  in 

503 


character  as  not  to  justify  us  in  holding- 
that  reversible  error  was  committed  by  the- 
court  below  in  passing  upon  the  case  upon 
I  its  merits,  thus  putting  an  end  to  further 
I  absolutely  useless  and  unnecessary  contro- 
versy.   We  say  useless  and  unnecessary  be- 
cause  on    the    merits    all   the   contentiona 
urged  by  the  appellants  concerning  the  un- 
constitutionality of  the  law  and  of  the  sur- 
taxes which  it  imposes  have  been  considered 
and  adversely  disposed  of  in  Brushaber  v. 
Union  P.  R.  Co.  240  U.  S.  1,  ante,  493,  36- 
Sup.  Ct.  Rep.  236. 
Judgment  affirmed. 

Mr.  Justice  McReynoIds  took  no  part  In. 
the  consideration  and  decision  of  this  ease.. 


[127]  IDA  MAY  INNES,  Plff.  in  Err., 

V. 

JOHN  W.  TOBIN,  Sheriff  of  Bexar  Goun* 

ty,  Texas. 

(See  S.  C.  Reporter's  ed.  127-135.) 

Interstato  extradition  »  fugitive  fronts 
jastice. 

1.  The  surrender  of  a  person  in  one 
state  for  removal  to  another  as  a  fugitive- 
is  expressly  or  by  necessary  implicyatioi^ 
prohibited  bv  U.  S.  Rev.  Stat.  §  5278,  Comp. 
Stat.  1913,  *§  10,126,  where  it  clearly  ap- 
pears that  the  person  was  not  and  could  not 
have  been  a  fugitive  from  the  justice  of  the- 
demanding  state. 

[For  other  cases,  see  Extradition,  I.,  In  Digest 
Sup.  Ct  1908.] 

Api>cal  »  presamptions  —  extradition* 
»  fugitive  from  jastice. 

2.  The  Federal  Supreme  Court,  when 
reviewing  the  refusal  of  a  state  court  to- 
discharge  on  habeas  corpus  a  person  whose 
extradition  is  sought  by  another  state,  will 
assume  that  the  accused  was  a  fugitive  f romi 
the  justice  of  the  demanding  state,  where 
there  was  no  question  of  such  fact  made  in 
the  application  for  habeas  corpus,  the  relief 
relied  upon  being  solely  that  there  was  and 
could  have  been  no  night  into  the  state,. 
since  the  coming  therein  was  involuntary, 
and  resulted  solely  from  other  extradition 
proceedings,  and  that  view  of  the  subject 
was  assumed  by  the  court  below  to  be  un- 
que^ioned,  and  neither  in  the  assignments 
of  error  in  the  Federal  Supreme  Court  nor 
in  the  arguments  is  the  contrary  view  in- 
sisted upon  or  even  suggested. 

[For  other  cases,  see  Appeal  and  Brror,  VIII.. 
d.  In  Digest  Sup.  Ct.  1908.] ■ 

NOTE; — As  to  who  are  fugitives  from  jus- 
tice for  purposes  of  extradition — see  notes 
to  Cook  V.  Hart,  36  L.  ed.  U.  S.  934;  and 
Bassing  ▼.  Cady,  52  L.  ed.  U.  S.  540. 

As  to  whether  a  state  which  has  extradit- 
ed a  person  from  another  state  or  country 
may  surrender  him  to  a  third  state  or  coun- 
try— see  note  to  this  case  in  the  state  oourt- 
as  reported  in  LJUL1916C,  1251?. 

240  U.  8- 


1915. 


IKN£S  V.  TOBIN. 


Interstate  extradition  —  proceedings 
after  surrender  »  release  or  return. 

3.  Nothing  in  the  interstate  extradition 
proriaions  of  U.  8.  Rar.  Stat.  I  5278,  Comp. 
Stat  1913,  S  10,126,  givea  the  extradited 
person  any  immmnity  after  trial  and  ac* 
quittal  in  the  demanding  state  from  her 
subsequent  surrender  to  another  state  upon 
an  extradition  warrant  instead  of  releasing 
her  from  Custody  or  returning  her  to  the 
state  whence  she  was  originally  brought. 
[For  otber  cases,  see  Extradition,  V.,  In  Di- 
gest Sup.  Ct.  1908.] 

Interstate  extradition  »  exclusiyeness 
of  Federal  power  »  congressional 
inaction  —  Inyolnntary  presence  of 
a<»nscd. 

4.  The  failure  of  Congress  when  enact- 
ing the  interstate  extradition  provisions  of 
U.  S.  Rev.  SUt  §  5278,  Comp.  8Ut. 
1913,  S  10,126,  to  provide  for  the  case  of 
a  fugitive  from  justice  who  has  not  fled  into 
the  state  where  ne  is  found,  but  was  brought 
into  it  involuntarily  by  a  requisition  from 
another  state,  does  not  take  the  matters^ 
within  the  unprovided  area  out  of  possible* 
state  action,  out  leaves  the  state  free  to 
deliver  the  accused  to  any  state  from  whose 
justice  he  has  fled. 

[For  otber  cases,  see  Bxtradltioa,  II.,  In  Digest 
Sup.  Ct.  1908.] 

[No.  532.] 

Argued  January  6,  1916.  Decided  February 

21,  1916. 

IN  ERROR  to  the  Court  of  Criminal  Ap- 
peals of  the  State  of  Texas  to  review  a 
Judgment  which  affirmed  a  judgment  of  the 
District  Court  of  Bexar  County,  in  that 
state,  refusing  to  discharge  on  habeas  cor- 
pus a  person  whose  extradition  is  sought 
by  another  state.    Affirmed. 

See  same  case  below,  —  Tex.  Crlm.  Rep. 
— .  L.RJk.l916C,  1251,  173  S.  VV.  291. 

The  facts  are  stated  in  the  opinion. 

Mr.  Joseph  W.  Bailey  argued  the  cause, 
and,  with  Mr.  R.  H.  Ward,  filed  a  brief  for 
plaintiff  in  error: 

The  extradition  clause  of  the  Constitu- 
tion is  not  self-executing. 

Hyatt  ▼.  New  York,  188  U.  S.  691,  708.. 
47  L.  ed.  657,  660,  23  Sup.  Ct  Rep.  456,  12 
Am.  Crim.  Rep.  311;  Kentucky  v.  Denni- 
son,  24  How.  66,  16  L.  ed.  717;  Roberts  v. 
Reilly,  116  U.  S.  80,  29  L.  ed.  544,  6  Sup. 
Ct  Rep.  291. 

This  clause  not  being  self-executing.  Con- 
gress passed  a  law  putting  it  into  force, 
which  law  clearly  contemplates  that,  in 
order  to  be  a  fugitive  from  justice,  there 
must  have  been  a  voluntary  flight,  because 
the  statute  speaks  of  a  demand  of  the 
executive  authority  of  a  state  for  the  sur- 
render of  a  person  as  a  fugitive  from  jus- 
tice by  the  executive  authority  of  the  state 
to  which  such  person  has  fled,  and  it  pro- 
•d  li.  ed. 


vides  that  the  indictment  or  affidavit  must 
be  certifled  as  authentic  by  the  governor  of 
the  state  from  whence  the  person,  so 
charged,  has  fled,  etc.,  and  it  makes  it  the 
duty  of  the  executive  authority  of  the  state 
to  which  such  person  has  fled,  to  cause  him 
to  be  arrested  and  secured. 

Hyatt  V.  New  York,  188  U.  8.  691,  715, 
47  L.  ed.  657,  662,  23  Sup.  Ct  Rep.  456,  12 
Am.  Crim.  Rep.  311;  2  Moore,  Extradition, 
p.  900,  §  569;  Rorer,  Interstate  Law,  p. 
308;  State  v.  Hall,  115  N.  C.  811,  28  L.  R. 
A.  292,  44  Am.  St  Rep.  501,  20  S.  E.  729, 
10  Am.  Crim.  Rep.  297;  Tennessee  v.  Jack- 
son, 1  hJSLA.  370,  36  Fed.  258;  Ex  parte 
Thaw,  214  Fed.  423;  Spear,  Extradition,  pp. 
558-^71;  Re  Robinson,  29  Neb.  135,  8 
L.R.A.  398,  26  Am.  St  Rep.  378,  45  N.  W. 
267;  State  v.  Simmons,  39  Kan.  262,  18 
Pac.  177;  SUte  v.  Hall,  40  Kan.  338,  10 
Am.  St  Rep.  200,  19  Pac.  918;  Re  Cannon, 
47  Mich.  481,  11  N.  W.  280;  Ex  parte  Mc- 
Knight,  48  Ohio  St  588,  14  L.RJ^.  128,  28 
N.  E.  1034;  Re  Tod,  12  S.  D.  386,  47  UTLA. 
566,  76  Am.  St.  Rep.  616,  81  N.  W.  637,  12 
Am.  CriuL  Rep.  303. 

Mr.  Hugh  M^  Dorsey  argued  the  cause, 
and,  with  Mr.  C.  C.  McDonald  flled  a  brief 
for  defendant  in  error: 

Plaintiff  in  error  was  a  fugitive  from 
justice. 

Roberts  T.  Reilly,  116  U.  8.  80,  29  L.  ed. 
544,  6  Sup.  Ct.  Rep.  291;  Applcyard  v. 
Massachusetts,  203  U.  S.  222,  51  L.  ed.  161,. 
27  Sup.  Ct  Rep.  122,  7  Ann.  Cas.  1073  ^ 
Hibler  v.  State,  43  Tex.  197;  Ex  parte 
Brown,  28  Fed.  653;  Rfe  White,  5  O.  C.  A. 
29,  14  U.  S.  App.  87,  55  Fed.  54;  Re  Bloch,. 
87  Fed.  981;  State  ex  rel.  Burner  v.  Rich- 
ter,  37  Minn.  436,  35  N.  W.  9;  Tavlor  v. 
Wise,  —  Iowa,  — ,  126  N.  W.  1126;  Ex 
parte  Dickson,  4  Ind.  Terr.  481,  69  S.  W. 
943;  Coleman  v.  State,  53  Tex.  Crim.  Rep. 
93,  113  S.  W.  17;  Com.  v.  Hare,  36  Pa. 
Super.  Ct  125;  People  ex  rel.  American 
Surety  Co.  v.  Benbam,  71  Misc.  345,  128 
N.  Y.  Supp.  610;  Ex  parte  Williams,  10 
Okla.  Crim.  Rep.  344,  51  L.R.A.(N.S.)  668, 
186  Pac.  597 ;  Re  Galbreath,  24  N.  D.  582, 
139  N.  W.  1050;  People  ex  rel.  Suydam  v. 
Sennott,  20  Alb.  L.  J.  230. 

No  irregularity  in  the  extradition  of  a 
fugitive  criminal,  when  brought  within  the 
jurisdiction  of  the  court  having  cognisance 
of  his  crime,  can  be  available  to  him  as  a 
means  of  escaping  trial  and  punishment. 

Mahon  v.  Justice,  127  U.  S.  700,  32  L.  ed. 
283,  8  Sup.  Ct  Rep.  1204. 

The  Constitution  of  the  United  States 
and  the  act  of  Congress  apply  only  to  fugi- 
tives from  justice;  but  a  state  may,  never- 
theless, in  the  exercise  of  its  reserved  sov- 
ereign power«  provide  for  the  surrender  of 

fttt 


120-131 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbbm, 


persons  indicted  for  crime  in  another  state, 
but  who  have  never  fled  from  it. 

State  V.  HaU,  115  N.  O.  811,  28  L.R.A. 
289,  44  Am.  St.  Rep.  501,  20  S.  E.  729,  10 
Am.  Crim.  Rep.  297;  Re  Roberts,  24  Fed. 
]32;  Kurtz  V.  State,  22  Fla.  36,  1  Am.  St. 
Rep.  173;  Com.  v.  Hall,  9  Gray,  262,  69 
Am.  Dec.  285;  Ex  parte  Ammons,  34  Ohio 
St.  518;  Hartman  v.  Aveline,  63  Ind.  344, 
30  Am.  Rep.  217. 

Mr.  Chief  Justice  l¥hlte  delivered  the 
opinion  of  the  court: 

The  governor  of  Oregon  honored  a  requisi- 
tion made  by  the  governor  of  Texas  for  the 
delivery  of  the  plaintiff  in  error  for  removal 
to  Texas  aa  a  fugitive  from  the  justice  of 
that  state.  The  accused  was  taken  to 
Texas,  tried  for  murder  and  a  conspiracy  to 
commit  murder,  and  acquitted.  She  was, 
however,  not  released  from  custody  because 
she  was  ordered  by  the  governor  of  Texas, 
under  a  requisition  of  the  governor  of 
Georgia,  to  be  held  for  delivery  to  an  agent 
of  the  state  of  Georgia  for  removal  to  that 
state  as  a  fugitive  from  justice. 

Alleging  these  facts,  an  application  for 
release  by  habeas  corpus  was  then  presented 
to  a  state  court  upon  the  charge  that  the 
extradition  proceedings  and  the  warrant  of 
removal  thereunder  were  "wholly  null  and 
void"  because  ''your  petitioner  waa  never 
a  fugitive  from  justice  from  the  state  of 
Georgia  to  the  state  of  Texas  within  the 
meaning  and  intent  of  the  laws  of  the  Unit- 
ed States  regulating  extradition  proceed- 
ings." On  the  return  to  the  writ,  the  court, 
finding  the  facts  to  be  as  above  stated,  re- 
fused to  discharge  the  petitioner,  and  the 
case  is  [130]  before  us  to  review  a  judg- 
ment of  the  court  of  criminal  appeals, 
which  adopted  the  findings  of  the  trial 
court  and  affirmed  its  action.  —  Tex.  Crim. 
Rep.  — ,  L.R.A.1910C,  1251,  173  S.  W.  291. 

All  the  Federal  questions  involve  the 
meaning  of  §  2  of  article  4  of  the  Constitu- 
tion, which  is  as  follows:  "A  person 
charged  in  any  state  with  treason,  felony, 
or  other  crime,  who  shall  flee  from  justice 
and  be  found  in  another  state,  shall,  on  de- 
mand of  the  executive  authority  of  the  state 
from  which  he  fled,  be  delivered  up,  to  be 
removed  to  the  state  having  jurisdiction  of 
the  crime."  Tliey  also  depend  on  §  5278  of 
the  Revised  Statutes,  which  is  but  a  re- 
production of  §  1  of  the  act  of  February  12, 
1793  (chap.  7,  1  Stat,  at  L.  302,  Comp.  Stat 
1913,  §  10,126),  giving  effect  to  and  estab- 
lishing the  methods  of  procedure  to  be  re- 
sorted to  for  the  purpose  of  enforcing  the 
provisions  of  the  Constitution  on  the  sub- 
ject to  the  extent  that  their  execution  was 
by  the  statute  provided  for. 

Broadly,  there  is  but  a  single  question  for 
6«4 


consideration:  Was  the  order  for  ren- 
dition repugnant  to  the  Constitution  and 
the  provisions  of  the  statute?  But  two  in- 
quiries are  involved  in  its  solution:  First, 
waa  the  rendition  order  void  because, 
under  the  facta,  there  was  no  power  to 
award  it  except  by  disregarding  express 
prohibitions  or  requirements  of  the  Con- 
stitution or  statute,  or  by  necessary  im- 
plication adversely  affecting  rights  there- 
by created?  and  second,  even  although  thia 
was  not  the  case,  was  the  order  neverthe- 
less void  because,  under  the  circumstances, 
it  dealt  with  a  situation  which,  by  the  ef- 
fect of  the  statute,  was  taken  out  of  the 
reach  of  state  authority,  even  although  no 
express  provision  was  made  in  the  statute 
for  dealing  with  such  condition  by  any  au- 
thority, state  or  Federal?  We  consider  the 
two  inquiries  under  separate  headings.     . 

First.  For  the  purpose  of  the  solution  of 
the  inquiry  under  this  heading  we  treat  the 
following  propositions  aa  beyond  question: 
(a)  That  prior  to  the  adoption  of  the 
[131]  Constitution  fugitives  from  justice 
were  surrendered  between  the  states  con- 
formably to  what  were  deemed  to  be  the 
controlling  principles  of  comity.  Kentucky 
V.  Dennison,  24  How.  66,  101,  102,  16  L.  ed. 
717,  727;  2  Moore,  Extradition  k  Inter- 
state Rendition,  pp.  820  et  seq.  (b)  ThAt  it 
was  intended  by  the  provision  of  the  Con- 
stitution to  fully  embrace  or  rather  to  con- 
fer authority  upon  Congress  to  deal  with 
such  subject.  Prigg  v.  Pennsylvania,  16 
Pet.  539,  10  L.  ed.  1060;  Kentucky  ▼.  Den- 
nison, supra;  Tayl(^  v.  Taintor,  16  Wall. 
366,  21  L.  ed.  287;  Appleyard  v.  Massachu- 
setts, 203  U.  S.  222,  51  L.  ed.  161,  27  Sup. 
Ct.  Rep.  122,  7  Ann.  Cas.  1073;  (c)  That 
the  act  of  1793  (now  Revised  Statutes,  § 
5278,  Comp.  Stat.  1913,  §  10,126)  waa  en- 
acted for  the  purpose  of  controlling  the 
subject  in  so  far  aa  it  waa  deemed  wise  to 
do  so,  and  that  its  provisions  were  intended 
to  be  dominant,  and,  so  far  as  they  oper- 
ated, controlling  and  exclusive  of  state 
power.  Prigg  v.  Pennsylvania,  10  Pet.  539, 
10  L.  ed.  1060;  Kentucky  v.  Dennison,  24 
How.  104,  105,  16  L.  ed.  728;  Mahon  v. 
Justice,  127  U.  S.  700,  32  L.  ed.  283,  8  Sup. 
Ct.  Rep.  1204;  Lascelles  v.  Georgia,  148 
U.  S.  537,  37  L.  ed.  649,  13  Blip.  Ct.  Rep. 
687. 

Coming  in  the  light  of  these  prineiplea  to 
apply  the  statute,  it  is  not  open  to  ques- 
tion that  its  provisions  expressly  or  by 
necessary  implication  prohibited  the  sur- 
render of  a  person  in  one  state  for  removal 
as  a  fugitive  to  another  where  it  elearly  ap- 
pears that  the  person  was  not  and  could  not 
have  been  a  fugitive  from  the  justice  of  the 
demanding  state.  Ex  parte  Reggel,  114  U. 
S.  642,  29  L.  ed.  250,  5  Sup.  Ct.  Rep.  1148, 

240  V.  S. 


1916. 


INNBS  V.  TOBIN. 


131-134 


5  Am.  Crim.  Rep.  218;  Roberts  ▼.  Reilly, 
116  U.  8.  80,  29  L.  ed.  644,  6  Sup.  Ct.  Rep. 
291 ;  HyAtt  T.  New  York,  188  U.  S.  691,  47 
L.  ed.  657,  23  Sup.  Ct.  Rep.  456»  12  Am. 
Grim.  Rep.  311;  Bassing  ▼.  Cady,  208  U.  S. 
386,  392,  62  L.  ed.  640,  643,  28  Sup.  Ct.  Rep. 
392,  13  Ann.  Cas.  906. 

From  this  it  results  that  the  first  inquiry 
here  is,  did  it  appear  that  the  accused  was  a 
fugitive  from  the  justice  of  the  state  of 
Georgia?  While  the  facts  which  we  have 
stated  do  not  disclose  affirmatively  that  she 
was  ever  in  Georgia,  and  the  date,  if  at  all, 
of  her  flight  from  that  state,  we  think  that 
she  was  such  a  fugitive  is  to  be  assumed  for 
three  obvious  reasons:  because  there  was 
no  question  of  such  fact  made  in  the  appli- 
cation for  habeas  corpus,  since  it  is  appar- 
ent on  the  face  of  the  application  that  the 
ground  of  relief  relied  upon  was  not  that 
there  had  [138]  been  no  flight  from  Georgia, 
but  that  there  was  and  could  have  been  no 
flight  into  Texas,  since  the  coming  into  that 
state  was  involuntary  and  resulted  solely 
from  the  extradition  proceedings;  because 
that  view  of  the  subject  was  assumed,  both 
in  the  elaborate  opinion  of  the  court  below 
and  that  of  the  dissenting  judge,  to  be  un- 
questioned; and  finally,  because  neither  in 
the  assignments  of  error  in  this  court  nor 
in  the  arguments  pressed  upon  our  atten- 
tion is  the  contrary  view  insisted  upon  or 
even  suggested.  fSrom  that  aspect,  there- 
fore, there  is  no  ground  for  saying  that  the 
extradition  order  conflicted  with  the  ex- 
press provision  of  the  statute. 

Was  there  a  conflict  between  the  statute 
and  the  order  for  removal  to  Georgia,  aris- 
ing by  necessary  implication  from  the  fact 
that  the  accused  had  been  brought  into  the 
state  of  Texas  on  a  requisition  up<m  the 
state  of  Oregon,  and  had  not  been  released 
from  custody  or  been  returned  to  Oregon, 
is  the  only  remaining  question  under  this 
heading.  While  it  is  quite  true,  as  pointed 
out  ii^  the  opinion  of  the  court  below,  and 
in  that  of  the  judge  who  dissented,  that 
there  are  some  decided  cases  and  opinions 
expressed  by  text  writers  which  sustain  the 
affirmative  view  of  this  inquiry,  the  subject 
is  here  not  an  open  one  since  it  has 
been  expressly  foreclosed  by  the  decision  in 
Lascelles  v.  (Georgia,  148  U.  S.  637,  37  L.  ed. 
649,  13  Sup.  Ct.  Rep.  687.  In  that  case  the 
issue  for  decision  was  whether  a  person  ac- 
cused, who  had  been  removed  to  the  state  of 
Georgia  from  another  state  on  extradition 
proceedings  for  trial  for  a  specifled  crime, 
was  liable  in  Georgia  to  be  tried  for  an- 
other and  different  crime.  Reviewing  the 
whole  subject  and  calling  attention  to  the 
broad  lines  of  distinction  between  inter- 
national extradition  of  fugitives  from 
justice  and  interstate  rendition  of  such  fugi- 
•0  li.  ed. 


tives  under  the  Constitution  and  the  pro- 
visions of  the  act  of  Congress,  and  the 
error  of  assuming  that  the  doctrine  of 
asylum  applicable  under  international  law 
to  the  one  case  was  applicable  to  the  other, 
it  was  [133]  held  that  the  right  to  prose- 
cute for  such  other  offense  existed.  The 
court  said:  "Neither  the  C<mstitution  nor 
the  act  of  Congress  providing  for  the  rendi- 
tion of  fugitives  upon  proper  requisition 
being  made  confers,  either  expressly  or  by 
implication,  any  right  or  privilege  upon 
such  fugitives  under  and  by  virtue  of 
which  they  can  assert,  in  the  state  to  which 
they  are  returned,  exemption  from  trial  for 
any  criminal  act  done  therein.  No  purpose 
or  intention  is  manifested  to  afford  them 
any  immunity  or  protection  irom  trial  and 
punishment  for  any  offenses  committed  in 
the  state  from  which  they  flee.  On  the 
contrary,  the  provision  of  both  the  Consti- 
tution and  the  statutes  extends  to  all  crimes 
and  offenses  punishable  by  the  laws  of  the 
state  where  the  act  is  done.  Kentucky  v. 
Dennison,  24  How.  66,  101,  102,  10  L.  ed. 
717,  727 ;  Ex  parte  Reggel,  114  U.  &  642,  29 
L.  ed.  260,  6  Sup.  Ct.  Rep.  1148,  6  Am.  Crim. 
Rep.  218." 

We  are  thus  brought  to  the  remaining 
heading,  which  is: 

Second.  Although  the  order  for  rendition 
was  not  in  conflict,  either  expressly  or  by 
necessary  implication,  with  any  of  the  pro- 
visions of  the  Constitution  or  statute,  was  it 
nevertheless  void  under  the  circumstances 
because  it  dealt  with  a  subject  with  which  it 
was  beyond  the  power  of  the  state  to  deal, 
and  which  was  therefore  brought,  as  the 
result  of  the  adoption  of  the  statute,  within 
exclusive  Federal  control,  although  no  pro- 
vision dealing  with  such  subject  is  found 
in  the  statute  ?  To  appreciate  this  question, 
the  proposition  relied  upon  needs  to  be  ac- 
curately stated.  It  is  this:  The  Constitu- 
tion provides  for  the  rendition  to  a  state  of 
a  person  who  shall  have  fled  from  justice 
and  be  found  in  another  state;  that  is,  for 
the  surrender  by  the  state  in  which  the 
fugitive  is  found.  This,  it  is  conceded, 
would  cover  the  case  and  sustain  the  au- 
thority exercised,  as  the  accused  was  a  fugi- 
tive from  the  justice  of  Georgia  and  was 
found  in  Texas.  But  the  proposition  insists 
that  the  statute  is  not  as  broad  as  the 
Constitution,  since  it  provides  not  for  the 
surrender  of  the  fugitive  [134]  by  the  state 
in  which  he  is  found,  but  only  for  his  sur- 
render by  the  state  into  which  he  has  fled, 
thus  leaving  unprovided  for  the  case  of  a 
fugitive  from  justice  who  Is  found  in  a 
state,  but  who  has  not  fled  into  such  state, 
because  brought  into  such  state  involuntar- 
ily by  a  requisition  from  another.  And  the 
argument  is  supported  by  the  contention 


lU-186 


SUPREME  COURT  OF  THE  UNITED  STATES. 


OOT.  TtMM, 


that,  as  the  statute  exercises  the  power  con- 
ferred by  the  Constitution  and  is  exclusive, 
it  occupies  the  whole  field  and  prohibits  all 
state  action  even  upon  a  subject  for  which 
the  statute  has  not  provid^,  and  which 
therefore  in  no  manner  comes  within  its  ex- 
press terms.  But  we  are  of  the  opinion 
that  the  contention  rests  upon  a  mistaken 
premise  and  unwarrantedly  extends  the 
scope  of  the  decided  cases  upon  which  it 
relies.  The  first,  because  it  erroneously  as- 
sumes that  although  the  statute  leaves  a 
subject  with  which  there  was  power  to  deal 
under  the  Constitution  unprovided  for,  it 
therefore  took  all  matters  within  such  un- 
provided area  out  of  any  possible  state 
action.  And  the  second,  because,  while  it  is 
undoubtedly  true  that  in  the  decided  cases 
relied  upon  (Kentucky  v.  Dennison,  supra; 
Roberts  v.  Reilly,  116  U.  S.  80,  29  L.  ed. 
544,  6  Sup.  Ct.  Rep.  201;  Hyatt  v.  New 
York,  188  U.  S.  691,  47  L.  ed.  657,  23  Sup. 
Ct  Rep.  456,  12  Am.  Crim.  Rep.  311)  the 
exclusive  character  of  the  legislation  em- 
bodied in  the  statute  was  recognized,  those 
cases,  when  rightly  considered,  go  no  fur- 
ther than  to  establish  the  exclusion  by  the 
statute  of  all  state  action  from  the  matters 
for  which  the  statute  expressly  or  by  neces- 
sary implication  provided. 

No  reason  is  suggested  nor  have  we  been 
able  to  discover  any,  to  sustain  the  assump- 
tion that  the  framers  of  the  statute,  in  not 
making  its  provisions  exactly  coterminous 
with  the  power  granted  by  the  Constitution, 
did  so  for  the  purpose  of  leaving  the  subject, 
so  far  as  unprovided  for,  beyond  the  opera- 
tion of  any  legal  authority  whatever,  state 
or  national.  On  the  contrary,  when  tlie 
situation  with  which  the  statute  dealt  is 
contemplated,  the  reasonable  assumption  is 
that  by  the  omission  to  [135]  extend  the 
statute  to  the  full  limits  of  constitutional 
power  it  must  have  been  intended  to  leave 
the  subjects  unprovided  for  not  beyond  the 
pale  of  all  law,  but  subject  to  the  power 
which  then  controlled  them, — state  author- 
ity until  it  was  deemed  essential  by  further 
legislation  to  govern  them  exclusively  by 
national  authority.  In  fact,  such  conclu- 
sion is  essential  to  give  effect  to  the  act  of 
Congress,  since  to  hold  to  the  contrary 
would  render  inefficacious  the  regulations 
provided  concerning  the  subjects  with 
which  it  dealt.  This  becomes  manifest  when 
it  ii  considered  that,  if  the  proposition 
now  insisted  upon  were  accepted,  it  would 
follow  that  the  delivery  of  a  criminal  who 
was 'a  fugitive  from  justice  by  one  state 
on  a  requisition  by  another  would  exhaust 
the  power,  and  the  criminal,  therefore, 
whatever  might  be  the  extent  and  char- 
acter of  the  crimes  committed  in  other 
statei^  would  remain  in  the  state  into 
^0S 


which  he  had  been  removed  without  any 
authority  to  deliver  him  to  other  stavna 
from  whose  justice  he  had  fled.  And  this, 
while  paralyzing  jthe  authority  of  all 
the  states,  it  must  be  moreover  apparent* 
would  cause  them  all  to  become  involuntary 
asylums  for  criminals;  for  no  method  is 
suggested  by  which  a  criminal  brought  into 
a  state  by  requisition,  if  acquitted,  could  be 
against  his  will  deported,  since  to  admit 
such  power  would  be  virtually  to  concede 
the  right  to  surrender  him  to  another  state 
as  a  fugitive  from  justice  for  a  crime  com- 
mitted within  its  borders. 

It  follows  from  what  we  have  said  that 
the  court  below  was  right  in  refusing  to 
discharge  the  accused,  and-  its  judgment, 
therefore,  must  be  and  it  is  affirmed. 

By  stipulation  of  counsel  a  similar  judg- 
ment will  be  entered  in  case  of  Viotob  E. 
Innes  v.  TOBIN,  Sheriff,  No.  533. 


[136]  TITLE  GUARANTY  &  SURETY 
COMPANY  OP  SCRANTON,  Penn^l- 
vania,  a  Corporation,  and  Vernon  W. 
Piatt,  Plffs,  in  Err., 

V. 

STATE  OF  IDAHO  to  and  for  the  Use  and 
Benefit  of  O.  W.  ALLEN  et  al. 

(See  S.  C.  Reporter's  ed.  136-142.) 

Removal  of  causes  —  diverse  citisen* 
ship  »  state  as  party  —  amount  In 
controversy. 

1.  A  suit  b^  a  state  for  the  use  and 
benefit  of  certain  named  depositors  in  a 
state  bank,  citizens  of  such  state,  against 
a  former  state  bank  commissioner,  now  a 
nonresident,  and  the  nonresident  surety  on 
his  bond,  to  recover  the  losses  separately 
claimed  by  each  of  such  depositors  becauae 
of  the  bank  commissioner's  neglect  of  his 
official  duties,  may  not  be  removed  from  a 
state  to  a  Federal  court  for  diverse  citi- 
zenship, whether  the  state  be  treated  as  the 
real  party  plaintiff  or  merely  as  a  nominal 
party,  where  none  of  the  individual  claims 
equals  $3,000. 

[For  other  eases,  see  Removal  of  Causes.  TO- 
TS. 24T-255,  In  Digest  Sup.  Ct.  1908.] 

Note. — On  removal  of  causes  in  cases  of 
diverse  citizenship — see  notes  to  Whelan  v. 
New  York,  L.  E.  &  W.  R.  Co.  1  L.R.A.  65; 
Seddon  v.  Virginia,  T.  &  C.  Steel  &  I.  Co.  1 
L.R.A.  108;  Huskins  v.  Cincinnati,  N.  O.  & 
T.  P.  R.  Co.  3  L.R.A.  545;  Bierbower  v. 
Miller,  9  L.R.A.  228;  Brodhead  v.  Shoe- 
maker, 11  L.R.A.  56T;  Delaware  R.  Constr. 
Co.  V.  Meyer,  25  L.  ed.  U.  S.  593 ;  Butler  ▼. 
National  Home,  36  L.  ed.  U.  S.  346;  aall 
Torrence  v.  Shedd,  36  L.  ed.  (U.  8.)  528. 

On  constitutionality  of  statute  authoris- 
ing officer  to  take  charge  of  assets  of  bank 
upon  suspicion  of  insolvency — see  note  to 
State  Sav.  &  C.  Bank  v.  Anderson,  L.R.A. 
1915E,  675. 

240  U.  8. 


1916. 


TITLB  GUARAIITT  &  S.  00.  t.  IDAHO 


ALLEN. 


•ConatitiitioiuU  law  —  dna  procc—  of  law 
—  olosins  InsolTent  tank. 

2.  A  state  may,  oonsUtentlj  with  the 
•due  process  of  law  clause  of  U.  S.  Const., 
14th  Amend.,  clothe  a  bank  commisAioner 
with  power  to  close  the  doors  of  a  state 
iMuik  if,  on  examination,  it  is  found  to  be 
insolvent,  without  awaiting  judicial  pro- 
ceedings. 

(For  other  eases,  see  Constitutional  Law,  lY. 
b.  7.  in  Digest  Sup.  Ct.  1908.] 

[No.  815.] 

Submitted  January  24,  1916.    Dedded  Feb- 
ruary 21,  19ie. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Idaho  to  review  a  judgment 
which  affirmed  a  judgment  of  the  District 
-Court  of  Ada  County,  in  that  state,  in  favor 
•of  plaintiff  in  an  action  by  the  state  for  the 
use  and  benefit  of  certain  depositors  in  a 
atate  bank  against  a  former  state  commis- 
sioner and  the  surety  on  his  bond.  Dis- 
missed for  want  of  jurisdiction. 

See  same  case  below,  27  Idaho,  752,  152 
Pac.  189. 

The  facts  are  stated  in  the  opinion. 

Mr.  Samuel  H.  Hays  submitted  the 
•cause  for  plaintiffs  in  error.  Messrs.  John 
F.  Nugent  and  Pasco  B.  Carter  were  on 
the  brief: 

The  state  is  seeking  to  recover  the  entire 
fund  deposited.  The  supreme  court  of  the 
state  held  that  the  state  in  this  case  is  the 
trustee  of  an  express  trust.  We  may  prop- 
•erly  consider  the  fund  represented  by  the 
total  judgment  as  a  trust  fund  recovered 
under  such  trust.  In  such  cases,  the  aggre- 
gate amount  is  to  be  taken  in  ascertaining 
the  amount  in  controversy. 

Handley  ▼.  Stuts,  137  U.  S.  366,  34  L.  ed. 
706,  11  Sup.  Ct.  Rep.  117 ;  Baltimore  &  0. 
S.  W.  R.  Co.  V.  United  States,  220  U.  S. 
94,  55  L.  ed.  384,  31  Sup.  Ct.  Rep.  368; 
Kaus  V.  American  Surety  Co.  199  Fed.  972; 
Spokane  Valley  Land  k  Water  Co.  v.  Koo- 
tenai County,  199  Fed.  481;  Jones  v.  Mu- 
tual Fidelity  Co.  123  Fed.  506. 

The  state  was  only  a  nominal  plaintiff, 
being  a  trustee  without  any  financial  inter- 
est in  the  matter;  therefore,  the  question 
ol  citisenship  was  the  citisenship  of  the 
real  parties  in  interest,  they  being  citizens 
^  Idaho. 

New  Orleans  v.  Gaines  (Neyr  Orleans  t. 
Whitney)  138  U.  S.  595,  34  L.  ed.  1102,  11 
Sup.  Ot  Rep.  428;  Mexican  C.  R.  Co.  v. 
Ednnan,  187  U.  S.  429,  432,  47  L.  ed.  245, 
-247,  23  Sup.  Ct  Rep.  211. 

Section  73  of  the  banking  act  of  the  state 
•of  Idaho  was  unconstitutional  in  that  it 
4id  not  provide  for  due  process  of  law. 

Chicago,  M.  &  St.  P.  R.  Co.  T.  Minnesota, 
40  L.  ed. 


I  134  U.  S.  418,  33  L.  ed.  970,  S  Inters.  Com. 
^  Rep.  209,  10  Sup.  Ct  Rep.  462,  702. 

Mr.  Joseph  H.  Peterson,  Attorney  Qen- 
eral  of  Idaho,  submitted  the  cause  for  de- 
fendants in  error.  Messrs.  Paris  Martin 
and  W.  E.  Cameron  were  on  the  brief: 

In  order  for  this  court  to  be  justified  In 
holding  that  the  Idaho  supreme  court  com- 
mitted error  in  affirming  the  action  of  the 
trial  court  in  refusing  to  grant  the  petition 
of  the  plaintiffs  in  error  to  remove  this 
cause  to  the  Federal  district  court,  it  must 
first  appear  from  the  record  that  the  cause 
was  one  within  the  possible  jurisdiction  of 
the  Federal  district  court,  and  was  one 
which  could  properly  havj^  been  commenced 
in  that  Federal  court 

Ex  parte  Wisner,  203  U.  S.  449,  457,  51 
L.  ed.  264,  267,  27  Sup.  Ct  Rep.  150; 
Re  Winn,  213  U.  S.  458,  53  L.  ed.  873,  29 
Sup.  Ct  Rep.  515. 

There  was  a  general  averment  in  the 
petition  for  removal  that  the  amount  in 
controversy  in  this  suit  exceeded  the  sum 
of  $3,000,  exclusive  of  interest  and  costs, 
but  this  was  a  mere  conclusion. 

Fishback  v.  Western  U.  Teleg.  Co.  161  U. 
S.  96,  40  L.  ed.  630,  16  Sup.  Ct  Rep.  506. 

When  two  or  more  parties  having  sepa- 
rate and  distinct  demands,  as  in  the  case 
at  bar,  are  united  for  convenience  and  econ- 
omy in  a  single  suit,  it  is  essential  that  the 
demand  of  each  be  of  the  requisite  jurisdic- 
tional amount;  and  the  separate,  distinct 
demands  of  the  various  parties  cannot  be 
united,  aggregated,  and  added  together  for 
the  purpose  of  making  up  an  amount  suf- 
ficient to  confer  jurisdiction  upon  a  Federal 
court. 

Walter  v.  Northeastern  R.  Oo.  147  U.  S. 
370,  37  L.  ed.  206,  13  Sup.  Ct.  Rep.  348; 
Putney  v.  Whitmire,  66  Fed.  387;  Smith- 
son  V.  Hubbell,  81  Fed.  594;  Cooper  v.  Pres- 
ton, 105  Fed.  403;  Washington  County  v. 
Williams,  49  C.  C.  A.  G21,  111  Fed.  813; 
McDaniel  v.  Tray  lor,  123  Fed.  338;  Wis- 
consin C.  R.  Co.  V.  Phoenix  Ins.  Co.  123 
Fed.  989;  Eaton  v.  Hoge,  72  C.  O.  A.  74. 
141  Fed.  64,  5  Ann.  Cas.  487;  Troy  Bank 
V.  G.  A.  Whitehead  &  Co.  184  Fed.  932,  222 
U.  S.  39,  56  L.  ed.  81,  32  Sup.  Ct.  Rep.  9; 
Auer  V.  Lombard,  19  C.  C.  A.  72,  33  U.  S. 
App.  438,  72  Fed.  209;  Schwed  v.  Smith, 
106  U.  S.  188,  27  L.  ed.  156,  1  Sup.  Ct. 
Rep.  221;  Freeman  v.  Dawson,  110  U.  S. 
264,  28  L.  ed.  141,  4  Sup.  Ct  Rep.  94;  Ex 
parte  Phcenix  Ins.  Co.  117  U.  S.  367,  29 
L.  ed.  923,  6  Sup.  Ct.  Rep.  772;  Clay  v. 
Field,  138  U.  S.  464,  34  L.  ed.  1044,  11 
Sup.  Ct  Rep.  419;  Northern  P.  R.  Co.  t. 
Walker,  148  U.  S.  891,  37  L.  ed.  494,  IS 
Sup.  Ct  Rep.  650;  Davis  v.  S<^warts,  155 
U.  a  647,  39  L.  ed.  296,  15  Sup.  Ct  Rep. 

ft«7 


139,  140 


SUPREME  COUBT  OF  THE  UNITED  STATES. 


Cot.  Tbbm^ 


237 :  Fiflhback  ▼.  Western  U.  Teleg.  Co.  lei 
U.  8.  96,  40  L.  ed.  630,  10  Sup.  Ct  Bep. 
606;  Citizens'  Bank  ▼.  Cannon,  164  U.  S. 
319,  41  L.  ecL  451,  17  Sup.  Ct.  Bep.  89; 
North  American  Transp.  k  Trading  Co.  v. 
Morrison,  178  U.  S.  262,  44  L.  ed.  1061,  20 
Sup.  Ct  Bep.  869;  Woodside  v.  Beckham, 
216  U.  S.  117,  64  L.  ed.  408,  30  Sup.  Ct. 
Bep.  367;  Oliver  ▼.  Alexander,  6  Pet.  143, 
8  L.  ed.  349;  Bich  ▼.  Lambert,  12  How. 
347,  13  L.  ed.  1017;  Seaver  y.  Bigelow,  6 
Wall.  208,  18  L.  ed.  696;  Farmers'  Loan  k, 
T.  Co.  v.  Waterman,  106  U.  S.  266,  27  L. 
ed.  116,  1  Sup.  Ct.  Bep.  131;  Stewart  ▼. 
Dunham,  116  U.  S.  61,  29  L.  ed.  329,  6  Sup. 
Ct.  Bep.  1163;  Gibson  y.  Shufeldt,  122  U.  S. 
27,  30  L.  ed.  108$,  7  Sup.  Ct  Bep.  1066; 
State  ex  rel.  Barker  v.  Chicago  &  A.  B. 
Co.  216  Fed.  662;  Wheless  v.  St  Louis,  180 
U.  S.  379,  46  L.  ed.  683,  21  Sup.  Ct  Bep. 
402. 

A  state  is  not  a  citizen  within  the  mean- 
ing of  removal  acts. 

SUme  V.  South  Carolina,  117  U.  8.  430,  29 
L.  ed.  962,  6  Sup.  Ct  Bep.  799. 

Admitting,  for  the  sake  of  argument, 
that  a  Federal  constitutional  question  is  in- 
volved in  the  case,  and  that  the  Idaho 
supreme  court  decided  a  Federal  constitu- 
tional question,  and  that  the  decision  of 
such  Federal  constitutional  que8ti<m  was 
necessary  to  the  decision  rendered  by  the 
Idaho  supreme  court,  yet  that  question  is 
so  wholly  devoid  of  merit  as  to  leave  no 
room  for  real  controversy  in  the  matter. 

Noble  State  Bank  v.  HaskeU,  219  U.  S. 
676,  66  L.  ed.  341,  32  LJLA.(N.S.)  1066,  31 
Sup.  Ct.  Bep.  299,  219  U.  S.  104,  66  L. 
ed.  112,  32  LJUL(N.S.)  1062,  31  Sup.  Ct 
Bep.  186,  Ann.  Cas.  1912A,  487;  Shallen- 
berger  v.  First  State  Bank,  219  U.  S.  114, 
66  L.  ed.  117,  31  Sup.  Ct  Bep.  189; 
Asaaria  State  Bank  v.  Dolley,  219  U.  S. 
121,  66  L.  ed.  123,  31  Sup.  Ct.  Bep.  189; 
Be  Mandel,  224  Fed.  642;  SUte  Sav.  k 
Commercial  Bank  v.  Anderson,  166  Cal. 
446,  L.BA.1916E,  676,  132  Pac.  756.  . 

[139]  Mr.  Chief  Justice  White  delivered 
the  opinion  of  the  court: 

The  case  is  before  us  on  a  motion  to  dis- 
miss or  affirm.  The  action  of  the  court 
below  which  it  is  sought  to  review  affirmed 
a  judgment  of  the  trial  court  entered  on  the 
verdict  of  a  jury  in  a  suit  brought  by  the 
state  for  the  use  and  benefit  of  O.  W.  Allen 
and  two  hundred  and  eighteen  other  named 
depositors  of  the  Boise  State  Bank  against 
Piatt,  a  state  bank  commissioner,  and  the 
surety  on  his  bond,  for  losses  alleged  to 
have  been  suffered  by  each  of  the  individ- 
uals named  as  the  result  of  alleged  neglect 
of  official  duty  imposed  by  the  state  law 
ft«8 


upon  the  bank  commissioner.  The  wrong- 
relied  upon  was  his  alleged  misconduct  in 
not  closing  the  doors  of  the  bank,  and  per- 
mitting it  to  continue  bufliness  after  he  had 
discovered,  as  the  result  of  an  official  ex- 
amination, 'that  the  bank  was  hopelessly 
insolvent.  The  bill  as  a  first  cause  of  action 
fully  set  out  the  facts  and  stated  the  legal 
grounds  relied  upon  to-  establish  the  losa 
and  right  of  O.  W.  Allen  to  recover,  and 
separate  causes  of  action  were  then  stated 
in  favor  of  each  of  the  two  hundred  and 
eighteen  other  depositors.  There  was  an 
application  to  remove  the  case  to  the  dis- 
trict court  of  the  United  States  on  th» 
ground  of  diverse  citizenship,  the  depositors 
named  being  citizens  of  Idaho,  and  Piatt, 
the  bank  commissioner,  being  then  a  resi- 
dent of  California,  and  the  Surety  Company 
of  Pennsylvania,  which  application  was  de- 
nied. After  issue  joined  there  was  a  trial 
before  a  jury  and  a  verdict  in  favor  of 
the  plaintiff,  the  state,  and  against  the  de- 
fendants, "on  each  and  every  cause  of  action 
set  forth  in  the  complaint  herein,  to  and 
for  the  use  and  benefit  of  each  of  tlie  par- 
ties named  in  each  of  the  separate  causes 
of  action  set  forth  In  plaintiff's  complaint.*' 
And  it  was  conformably  adjudged  "Uiat  the 
said  plaintiff  do  have  and  recover  of  and 
from  the  said  defendants  ..  .  .  for  the 
[140]  use  and  benefit  of  each  of  the  follow- 
ing-named parties,  the  sums  set  opposite 
their  respective  names,  to  wit,"  etc  No  one 
of  the  amounts  thus  awarded  to  the  plaintiff 
for  the  use  of  any  one  of  the  named  per- 
sons equalled  $3,000,  but  the  sum  of  all  the 
claims  equalled  $30,000.  In  affirming  the 
judgment  the  court  below  held  that  the  re- 
lief prayed  was  authorized  by  the  state  stat- 
utes, and  that  they  also  conferred  authority 
upon  the  state  to  bring  the  suit  as  an  ex- 
press trustee  for  the  use  and  benefit  of  the 
respective  parties. 

The  Federal  questions  relied  upon  are, 
first,  the  alleged  wrongful  denial  of  th» 
right  to  remove,  and  second,  an  asserted 
error  committed  by  the  court  below  in  re- 
fusing to  sustain  a  claim  under  the  du» 
process  clause  of  the  14th  Amendment. 

The  first  is  plainly  without  merit.  Treat- 
ing the  state  as  the  party  plaintiff,  it  is  not 
open  to  question  that  there  was  no  right 
to  reipove.  Stone  v.  South  Carolina,  117 
U.  S.  430,  29  L.  ed.  962,  6  Sup.  Ct.  Bep. 
799;  Missouri,  K.  A  T.  B.  Co.  v.  Missouri 
B.  ft  W.  Comrs.  (Missouri,  K.  ft  T.  B.  Co. 
V.  Hickman)  188  U.  S.  63,  68,  46  L.  ed.  78, 
80,  22  Sup.  Ct  Bep.  18.  And  if  we  were  to- 
accede  to  the  contention  made  in  argument 
that  the  state  must  be  treated  as  merely 
a  nominal  party,  and  the  right  to  remove 
be  then  determined  by  the  citizenship  of  the 
individuals  for  whose  benefit  recovery  waa 

240  r.  s* 


1916. 


BANNINO  CO.  V.  CALIFORNIA 


WBBB. 


140-142 


allowed,  ft  would  yet  follow,  since  none  of 
the  diatinet  judgmentB  in  favor  of  any  of 
the  individuals  art*  large  enough  to  confer 
jurisdiction,  that  the  court  below  correctly 
held  that  there  was  no  basis  for  the  right 
to  remove.  Woodside  v.  Beckham,  216  U. 
8.  117,  54  L.  ed.  408,  30  Sup.  Ct.  Rep.  367; 
Troy  Bank  v.  0.  A.  Wliitehead  &  Co.  222 
U.  S.  30,  56  L.  ed.  81,  32  Sup.  Ct.  Rep.  9; 
Rogers  v.  Hennepin  County,  239  U.  S.  621, 
ante,  469,  36  Sup.  Ct.  Rep.  217.  In  fact,  the 
correctness  of  these  conclusions  is  made 
clear  by  the  arguments  advanced  to  the 
contrary,  since  they  serve  only  to  confuse 
and  are  destructive  of  each  other.  Thus,  on 
the  one  hand,  for  the  purpose  of.  establish- 
ing the  existence  of  diversity  of  citizenship 
justifying  the  removal,  it  is  urged  that  the 
state  must  be  treated  as  merely  a  nominal 
party,  having  [141]  no  interest,  and  as  in 
no  wise  concerned  in  the  judgment,  and  then 
upon  the  hypothesis  that  the  state  is  elimi- 
nated, in  order  to  establish  a  jurisdictional 
amount  sufficient  to  remove,  the  award  of 
distinct  and  separate  amounts  made  by  the 
judgment  in  favor  of  each  of  the  distinct 
plainrtifTs  is  wholly  ignored,  and  it  is  urged 
that  there  is  but  judgment,  which  is  in 
favor  of  the  state,  and  which  is  composed 
of  the  aggregate  of  the  distinct  amounts. 
Second.  The  proposition'  under  the  14th 
Amendment  relied  upon  is  that,  consistently 
with  that  Amendment,  the  state  had  not  the 
power  to  put  upon  the  bank  commissioner 
the  duty  of  closing  the  bank  in  case,  on  ex- 
amination, it  was  found  to  be  insolvent, 
since  such  suthority,  consistently  with  due 
process,  could  only  have  been  exerted  after 
judicial  proceedings  to  ascertain  the  facts, 
and  the  awarding  of  relief  accordingly.  The 
pleadings  leave  it  exceedingly  doubtful 
whether  the  question  thus  urged  was  pre- 
sented in  either  of  the  courts  below,  and  it 
is,  besides,  obvious  from  the  opinion  of  the 
court  below  that  it  considered  that  the  only 
question  raised  under  the  Constitution  of 
tiie  United  States  was  a  contention  that 
there  would  result  a  want  of  due  process 
if  the  state  statutes  conferred  upon  an  ad- 
ministrative officer  the  authority  to  liqui- 
date the  affairs  of  the  insolvent  bank  with- 
out judicial  proceedings.  We  say  this  be- 
cause, in  its  opinion,  the  court  observed 
that  if  that  was  the  contention,  it  was  ir- 
relevant, as  the  statutes  did  not  authorize 
liquidation  except  as  a  result  of  judicial 
proceedings,  although  they  did  impose  upon 
the  bank  commissioner  the  duty,  after  he 
found  a  bank  to  be  insolvent,  to  close  its 
doors  and  prevent  the  further  transaction 
of  business  until,  in  the  orderly  course  of 
procedure,  a  judicial  liquidation  might  be 
accomplished.  But  assuming,  as  it  is  now 
insisted  in  argument  was  the  eaae>  thai  the 
•0  li.  ed. 


'  qaesti<m  relied  upon  was  the  repugnancy  of 
the  state  statute  to  the  due  process  clause 
of  the  14th  Amendment,  because  [142] 
power  was  conferred  upon  an  administrative 
officer  in  the  event  of  insolvency  to  close  the 
doors  of  a  bank  without  awaiting  judicial 
proceedings,  and  that  the  observation  on 
that  subject  by  the  court  below  was  an  ad- 
verse decision  of  such  question,  we  think  it 
suffices  to  state  the  proposition  to  demon- 
strate its  want  of  merit.  Noble  State  Bank 
V.  Haskell,  219  U.  S.  104,  55  L.  ed.  112,  32 
LJLA.(N.S.)  1062,  31  Sup.  Ct.  Rep.  186, 
Ann.  Cbs.  1912A,  487;  Shallenberger  v. 
First  State  Bank,  219  U.  S.  114,  55  L.  ed 
117,  31  Sup.  Ct.  Rep.  189. 
Dismissed  for  want  of  Jtrisdiction. 


BANNING  COMPANY,  Mary  H.  Banning, 
Lucy  T.  Greenleaf,  Mary  U.  Morris,  Han- 
cock, Banning,  k  Pacific  Electric  Rail- 
way Company,  PUfs!  in  Err., 

V.  • 

PEOPLE  OF  THE  STATE  OF  CALIFOR- 
NIA upon  the  Information  of  U.  S. 
WEBB,  Attorney  General. 

(See  8.  C.  Reporter's  ed.  142-156.) 

Constitutional  law  —  Impairing  con- 
tract obligations  —  sale  of  state  lands. 

Compliance  with  the  provisions  of 
CaL  act  of  April  27,  1863,  governing  the 
sale  of  tide  lands  of  the  state,  by  making 
an  application  for  their  purchase,  taking 
the  required  oath,  and  expending  money  for 
a  survey,  cannot  be  said  to  consummate, 
without  the  payment  of  some  instalment  of 
the  purchase  price,  a  binding  contract  be- 
tween the  purchaser  and  the  state,  protected 
by  U.  S.  Const,  art.  1,  %  10,  against  im- 
pairment by  subsequent  legislation,  not- 
withstanding a  subsequent  judgment  of  a 
state  court  in  his  favor,  rendered  in  a  con- 
test over  conflicting  applications. 
[For  other  cases,  see  Constitutional  Law, 
1088-1097,  in  Digest  Snp.  Ct.  1908.J 

[No.  73.] 

Argued  January   19,   1916.     Decided  Feb- 
ruary 21,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  California  to  review  a  decree 
which  affirmed  a  decree  of  the  Superior 
Court  of  Los  Angeles  County  in  favor  of  the 

NoTB. — Generally,  as  to  what  laws  are 
void  as  impairing  obligation  of  contracts — 
see  notes  to  Franklin  County  Grammar 
School  V.  Bailey,  10  h3,JL  405;  Bullard  v. 
Northern  P.  R.  Co.  11  L.R.A.  246;  Hender- 
son v.  State  Soldiers  k  S.  Monument  Comrs. 
13  L.R.A.  169;  and  Fletcher  t.  Peck,  3  L. 
ed.  U.  a  162. 

5^ 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


state  in  a  suit  by  it  to  qniet  title  to  tide 
lands.    Affirmed. 

See  same  ease  below,  166  CaL  630,  138 
Pac.  100. 

Ihe  facte  are  stated  in  the  c^inion. 

Mr.  James  A.  Gibson  argued  the  cause, 
and,  with  Mr.  Edward  E.  Bacon,  filed  a  brief 
for  plaintiffs  in  error : 

The  state's  offer  to  sell,  accepted  bj  filing 
an  application  to  purchase,  consummates  a 
binding  contract. 

McConnaughy  ▼.  Pennoyer,  43  Fed.  196, 
140  U.  S.  1,  35  L.  ed.  363,  11  Sup.  Ct.  Rep. 
699. 

Decisions  under  preemption  laws  are  dis- 
tinguishable. Thfy  do  not  involve  the  doc- 
trine of  contract  by  offer  and  acceptance. 

Northern  P.  R.  Co.  t.  De  Lacey,  174  U.  8. 
622,  628,  43  L.  ed.  1111,  1113,  19  Sup.  Ct. 
Rep.  791 ;  Tarpey  v.  Madsen,  178  U.  S.  215, 
221,  44  L.  ed.  1042,  1045,  20  Sup.  Ct.  Rep. 
849;  Yosemite  Valley  Case  (Hutchings  v. 
Low)  15  Wall.  77,  86,  21  L.  ed.  82,  85; 
Frisbie  v.  Whitney,  9  Wall.  187,  193,  197, 
19  L.  ed.  668,  670,  672. 

Sufficient  consideration  for  the  state's 
contract  is  found  in  expenditures  on  the 
faith  of  an  offer,  and  an  implied  promise 
by  the  applicant  to  pay  the  purchase  price. 

Hendrick  v.  Lindsay,  93  U.  S.  143,  148, 
149,  23  L.  ed.  855,  857. 

Our  contention  of  contract  by  offer  and 
acceptance  is  sustained  by  numerous  de- 
cisions under  the  contract  clause  of  the 
Federal  Constitution. 

Blair  v.  Chicago,  201  U.  S.  400,  472,  50 
L.  ed.  801,  831,  27  Sup.  Ct.  Rep.  427 ;  Rus- 
sell y.  Sebastian,  233  U.  S.  195,  204,  58  L. 
ed.  912,  921,  L.R.A.  — ,  — ,  34  Sup.  Ct.  Rep. 
517,  Ann.  Cas.  1914C,  1282;  New  Orleans 
Gaslight  Co.  v.  Louisiana  Light  &  H.  P.  & 
Mfg.  Co.  115  U.  S.  650,  660,  29  L.  ed.  516, 
520,  6  Sup.  Ct.  Rep.  252;  New  Orleans 
Waterworks  Co.  v.  Rivers,  115  U.  S.  674, 
680,  681,  29  L.  ed.  525,  527,  528,  6  Sup.  Ct. 
Rep.  273;  Walla  Walla  v.  Walla  Walla 
Water  Co.  172  U.  S.  1,  9,  43  L.  ed.  341,  345, 
19  Sup.  Ct.  Rep.  77;  Louisville  v.  Cumber- 
land Teleph.  k  Teleg.  Co.  224  U.  S.  649,  663, 
664,  56  L.  ed.  934,  940,  941,  32  Sup.  Ct.  Rep. 
572 ;  Grand  Trunk  Western  R.  Co.  v.  South 
Bend,  227  U.  S.  544,  552,  57  L.  ed.  633, 
639,  44  L.RJl.(N.S,)  405,  33  Sup.  Ct.  Rep. 
303;  Owensboro  ▼.  Cumberland  Teleph.  & 
Teleg.  Oo.  230  U.  S.  58,  65,  57  L.  ed.  1389, 
1393,  33  Sup.  Ct.  Rep.  988;  Bois4  Artesian 
Hot  k  Cold  Water  Co.  v.  Bois^  City,  230 
U.  S.  84,  90,  91,  57  L.  ed.  1400,  1406,  1407, 
33  Sup.  Ct  Rep.  997;  New  York  Electric 
Lines  Co.  ▼.  Empire  City  Subway  Co.  235 
U.  S.  179,  59  L,  ed.  184,  LJLA.  — ,  — ,  35 
Sup.  Ct.  Rep.  72,  Ann.  Cas.  1915A,  906. 

A  Judgment  is  conclusive  as  to  all  the 
570 


media  coneludendi,  and  it  needs  no  author- 
ity to  show  that  it  cannot  be  impeached 
either  in  or  out  of  the  state,  by  showing 
that  it  was  based  upon  a  mistake  of  law. 

American  Exp.  Co.  v.  MuUins,  212  U.  S. 
311,  314,  53  L.  ed.  526,  527,  29  Sup.  Ot 
Rep.  381,  15  Ann.  Cas.  536. 

The  presumption  is  very  strong  that  a 
statute  was  not  meant  to  act  retrospee- 
tively,  and  it  ought  never  to  receive  such  a 
construction  if  it  is  susceptible  of  any 
other.  It  ought  not  to  receive  such  a  con- 
struction unless  the  words  used  are  so 
clear,  strong,  and  imperative  that  no  other 
meaning  can  be  annexed  to  them,  or  unless 
the  intention  of  the  legislature  cannot  be 
otherwise  satisfied. 

United  States  Fidelity  k  G.  Co.  t.  United 
States,  200  U.  S.  306,  314,  52  L.  ed.  804, 
807,  28  Sup.  Ct.  Rep.  537. 

In  all  cases  where  the  court  has  acquired 
jurisdiction  of  the  action,  its  jurisdiction 
must  extend  to  the  determination  of  the 
right  of  the  applicant,  or  the  successful 
applicant,  to  purchase  from  the  state. 

Hinckley  v.  Fowler,  43  Cal.  04;  Cadierque 
V.  Duran,  49  Cal.  356;  Christman  v. 
Brainard,  51  Cal.  534;  Wright  v.  Lauge- 
nour,  55  Cal.  280;  Dillon  v.  Saloude,  68 
Cal.  267,  9  Pac.  162;  Cushing  v.  Keslar,  68 
Cal.  473,  9  Pac.  659 ;  Garfield  v.  Wilson,  74 
Cal.  175,  15  Pac.  620;  Anthony  v.  Jillson, 
83  Cal.  299,  23  Pac.  419,  16  Mor.  Min.  Rep. 
26;  Goldberg  v.  Thompson,  96  Cal.  117,  30 
Pac.  1019. 

Where  only  one  of  the  contestants  is  an 
applicant  for  purchase,  it  is  held  in  numer- 
ous cases  to  be  the  duty  of  the  court  to 
determine  as  to  his  right  to  purchase;  and 
the  same  principle  will  apply,  in  other 
cases,  to  the  prevailing  applicant. 

Tyler  v.  Houghton,  25  Cal.  30 ;  Cadierque 
V.  Duran,  49  Cal.  356;  Garfield  v.  Wilson, 
74  Cal.  175,  15  Pac  620;  Perri  v.  Beau- 
mont, 91  Cal.  33,  27  Pac.  534;  Youle  v. 
Thomas,  146  Cal.  537,  80  Pac.  714;  McFaul 
V.  Pfankuch,  98  Cal.  402,  33  Pac.  397; 
Lobree  v.  Mullan,  70  Cal.  150,  11  Pac.  685 ; 
Cunningham  v.  Shanklin,  60  Cal.  118. 

Several  of  the  decisions  which  we  have 
cited  in  support  of  our  construction  of  the 
statute  were  rendered  prior  to  the  institu- 
tion of  the  contest  action  in  which  the 
right  of  purchase  was  adjudicated  to  the 
predecessor  of  plaintiffs  in  error. 

Hinckley  v.  Fowler,  43  Cal.  56;  Tyler  t. 
Houghton^  25  Cal.  30. 

It  is  not  within  the  power  of  a  legisla- 
ture to  take  away  rights  which  have  once 
been  vested  by  a  judgment.  Legislation 
may  act  on  subsequent  pcoeeedings,  may 
abate  actions  pending^  but  when  those 
actions   have   passed    into   judgment,    the 

S4d  U.  8. 


1015. 


BAKNINO  (X).  ▼.  CALIFORNIA  KX.  bkl.  WEBB. 


146 


power    of    the   legislature   to   disturb  the  t 
ri^ts  created  thereby  ceases.  ' 

McCuUougfa  ▼.  Virginia,  172  U.  S.  102, 
123,  43  L.  ed.  382,  389,  19  Sop.  Ct  Rep. 
134;  United  States  ▼.  Klein,  13  Wall.  128, 
20  L.  ed.  519. 

Messrs.  Albert  Lee  Stephens  and  James 
A.  Anderson  argued  the  cause,  and,  with 
Mr.  W.  H.  Anderson  and  Mr.  U.  8.  Webb, 
Attorney  General  of  California,  filed  a  brief 
for  defendant  in  error: 

By  an  unbroken  line  of  decisions,  begin- 
ning in  1870  and  extending  to  the  present 
date  without  any  conflict,  it  has  become 
the  thoroughly  established  law  of  the  state 
of  California  that  applicants  to  purchase 
«tate  lands  of  any  character  or  descrip- 
tion acquire  no  vested  right  until  pa3mient 
of  part  of  the  purchase  price;  such  rule  of 
decision  has  become  a  law  of  property  with 
reference  to  school  lands  by  express  adjudi- 
cation since  1870,  and  by  express  adjudica- 
tion since  1897  as  to  tide  lands. 

People  y.  Shearer,  30  Cal.  645;  Button  ▼. 
Frisbie,  37  Cal.  475;  Eckart  ▼.  Campbell, 
39  Cal.  256;  Johnson  v.  Squires,  55  Cal. 
103;  Urton  v.  Wilson,  65  Cal.  11,  2  Pac. 
411;  Mosely  v.  Torrence,  71  Oal.  321,  12 
Pac.  430;  Manley  y.  Cunningham,  72  Cal. 
236,  13  Pac.  622;  Klauber  v.  Higgins,  117 
Cal.  451,  49  Pac.  466;  Messenger  v.  Kings- 
bury, 168  Cal.  615,  112  Pac.  65;  Polk  y. 
Sleeper,  158  Cal.  632,  112  Pac.  179;  Ayers 
y.  Kingsbury,  25  Cal.  App.  183,  143  Pac. 
85. 

An  unbroken  line  of  decisions  of  this 
court  has  established  the  doctrine  that  an 
applicant  to  purchase  lands  of  the  United 
States  either  under  the  pre-emption  laws, 
or  under  town-site  laws,  or  under  special 
laws  authorizing  the  sale  of  land,  acquires 
no  rights  as  against  the  goyernment  until 
all  of  the  preliminary  steps  required  by 
law  are  complied  with ;  and,  where  payment 
is  required,  until  such  payment,  in  whole 
or  in  part,  has  been  made;  such  laws  of 
the  United  States  are  so  similar  to  the  laws 
of  the  state  of  California  with  reference  to 
the  sale  of  its  public  lands  that  the  de- 
cisions of  this  court  with  reference  to  the 
former  are  direct  authority  here. 

Bagnell  y.  Broderick,  13  Pet.  436,  10  L. 
ed.  235;  Rector  y.  Ashley,  6  Wall.  142- 
150,  18  L.  ed.  783-735;  Hot  Springs  Cases, 
t2  U.  S.  713,  23  L.  ed.  696;  Frisbie  y. 
Whitney,  9  Wall.  187,  193,  19  L.  ed.  668, 
671;  Yosemite  Valley  Case  (Hutchings  y. 
Low)  15  Wall.  77,  21  L.  ed.  82;  Shepley  y. 
Cowan,  91  U.  S.  330,  23  L.  ed.  424. 

This  court  will  follow  the  decisions  of 
the  state  supreme  court,  construing  a  stat- 
ute under  whieh  it  is  claimed  a  yested  right 
«d  L.  ed. 


has  accrued,  where  the  question  is  balanced 
in  doubt. 

Burgess  y.  Seligman,  107  U.  S.  20,  32,  27 
L.  ed.  359,  365,  2  Sup.  Ct.  Rep.  10;  Board 
of  Liquidation  y.  Louisiana,  179  U.  S.  622, 
638,  45  L.  ed.  347,  354,  21  Sup.  Ot.  Rep. 
263;  Freeport  Water  Co.  y.  Freeport,  180 
U.  Si  587,  609,  45  L.  ed.  679,  693,  21  Sup. 
Ct.  Rep.  493;  Vicksburg  y.  Vicksburg 
Waterworks  Co.  206  U.  S.  496,  506,  51  L. 
ed.  1155,  1159,  27  Sup.  Ct.  Rep.  762;  Yazoo 
k  M.  VaUey  R.  Co.  y.  Adams,  181  U.  8. 
580,  581,  45  L.  ed.  1011,  1012,  21  Sup.  Ct 
Rep.  729;  Milwaukee  Electric  R.  k,  Light 
Co.  y.  Railroad  Commission,  238  U.  S.  174, 
59  L.  ed.  1254,  P.U.R.1915D,  591,  35  Sup. 
Ct.  Rep.  823,  824;  Campbell  y.  Wade, 
132  U.  S.  34-37,  33  L.  ed.  240-242,  10  Sup. 
Ct.  Rep.  9. 

There  was  no  implied  promise  to  pay 
when  the  applicant  filed  his  application. 

Eckart  y.  Campbell,  39  Cal.  256. 

As  to  the  effect  of  re-enacting  provisions 
in  a  law  which  is  simultaneously  repealed, 
see  36  Cyo.  1084. 

See  also  Bear  Lake  A  Riyer  Waterworks 
&  Irrig.  Co.  y.  Garland,  164  U.  S.  1-11,  41 
L.  ed.  327-332,  17  Sup.  Ct.  Rep.  7;  Pacific 
Mail  S.  &  Co.  y.  JoUffe,  2  Wall.  450-456, 
17  L.  ed.  805-807. 

The  adjudication  by  the  superior  court 
on  the  contest  referred  to  it  by  the  sur- 
veyor general  does  not  estop  the  state. 

Cunningham  y.  Crowley,  51  Cal.  128;  Lo- 
bree  y.  Mullan,  70  Cal.  153,  11  Pao.  685; 
Youle  y.  Thomas,  146  Cal.  537,  80  Pac.  714; 
Berry  y.  Cammet,  44  Cal.  351;  Polk  y. 
Sleeper,  158  Oal.  632,  112  Pac.  179;  Steel 
y.  St.  Louis  Smelting  &  Ref.  Co.  106  U.  S. 
447-457,  27  L.  ed.  226-230,  1  Sup.  Ct.  Rep. 
389;  Klauber  y.  Higgins,  117  Cal.  458,  49 
Pac.  466. 

The  state  had  power  to  retake  lands 
covering  the  shores  and  a  large  part  of  the 
bed  of  a  navigable  bay  in  front  of  a  sea- 
port, even  though  some  right  in  the  land 
may  have  been  theretofore  granted  by  the 
state. 

Eldridge  y.  Cowell,  4  Cal.  80;  Guy  t. 
Hermance,  6  Cal.  73,  63  Am.  Dec  85;  Peo- 
ple y.  Williams,  64  Cal.  498,  2  Pac.  393; 
People  ex»  rel.  Harbor  Comrs.  v.  Kerber, 
152  Cal.  736,  125  Am.  St.  Rep.  93,  93  Pac. 
878;  Montgomery  y.  Portland,  190  U.  S. 
89,  47  L.  ed.  965,  23  Sup.  Ct.  Rep.  735; 
niinoU  C.  R.  Co.  v.  Hlinois,  146  U.  S.  387- 
476,  36  L.  ed.  1018-1051,  13  Sup.  Ct.  Rep. 
110. 

Mr.  Justice  HoKenna  delivered  the  opin- 
ion of  the  court: 

Suit  brought  bj.the  state  of  California  to 
quiet  title  to  certain  lands  embraced  in  a 

57^ 


14^148 


SUPREME  (X)URT  OF  THE  UNITED  STATES. 


Oct.  Teem, 


patent  issued  under  certain  statutes  of  the 
state,  authorizing  the  sale  of  tide  lands. 

The  lands  involved  constituted  location 
No.  67  of  the  state  tide  lands,  and  the 
state  alleged  that  they  had  been  at  all  times 
a  portion  of  the  inner  bay  of  San  Pedro  and 
below  the  line  of  ordinary  high  tide;  that 
they  were  partly  within  the  limits  of  the 
city  of  San  Pedro  and  partly  within  the 
limits  of  Wilmington;  that  prior  to  and 
since  1870  no  portion  of  them  had  ever 
been  redaimable  for  agricultural  or  other 
purposes,  and  that  the  state  had  at  all  times 
withheld  them  from  sale. 

The  intermediate  pleadings  we  may  omit. 
The  defendants  (plaintiffs  in  error  here) 
filed  separate  answers,  the  pertinent  parts 
of  which  may  be  summarized  as  follows: 
They  denied  the  title  of  the  state,  the  loca- 
tion of  the  lands  as  alleged,  or  their  rela- 
tion to  the  cities  of  San  Pedro  and  Wil- 
mington, or  that  they  were  not  susceptible 
of  reclamation  for  agricultural  purposes,  or 
that  they  had  been  withheld  from  sale  by 
the  state. 

For  an  affirmative  defense  it  was  alleged 
that  one  Phineas  Banning,  in  February, 
1866,  made  application  to  the  [146]  state 
under  an  act  of  its  legislature  for  the  dis- 
position of  state  lands  to  purchase  the  lands 
in  controversy;  that  he  possessed  the  quali- 
fications to  apply  to  purchase  the  lands,  and 
on  February  15,  1866,  did  apply  to  pur- 
chase them  under  an  act  of  the  legislature 
providing  for  their  sale,  approved  April  27, 
1863,  and  in  conformity  to  his  application 
and  the  provisions  of  §  7  of  that  act  caused 
a  survey  of  the  lands  to  be  made  and  a 
plat  and  field  notes  thereof  to  be  completed 
by  the  county  surveyor  of  Los  Angeles 
county,  and  paid  a  large  sum  of  money  to 
such  surveyor  April  2,  1866,  for  legal  fees; 
that  he  caused  a  copy  of  his  application 
and  aflSdavit  to  be  filed  in  the  office  of  the 
surveyor  general  of  the  state  February  15, 
1866;  that  on  said  date  he  subscribed  the 
oath  required  by  §  28  of  the  act  of  1863, 
and  complied  with  %  29;  that  by  reason  of 
such  proceedings  he  acquired  the  title  to 
the  lands  and  a  contract  was  created  be- 
tween him  and  the  state  whereby  the  state 
agreed  to  sell  him  the  lands  upon  the  terms 
provided  in  the  act  of  1863.  That  he  com- 
plied with  all  other  provisions  of  the  act 
and  of  other  acts,  and  that  a  patent  was 
duly  issued  to  him  and  the  title  thereby 
conveyed  to  him,  and  by  him  conveyed  to 
defendants.  That  the  state  by  this  action 
is  attempting  to  impair  the  obligation  of 
the  contract  between  the  state  and  Banning, 
in  violation  of  article  1,  §  10,  of  the  Con- 
•titutfon  of  the  United  States. 

That  subsequently  other  applications  were 
ft7S 


made  to  purchase  other  lands  in  the  vieiii- 
ity  of  location  No.  57,  which  overlapped  and 
conflicted  with  that  made  by  Banning;  that 
one  of  said  applicants,  to  wit,  one  William 
McFadden,  made  a  demand  upon  the  sur- 
veyor general  of  the  state  that,  in  pursuance 
of  §  3413  of  the  Political  Code  of  the  state, 
the  contest  between  the  applicants  be  re- 
ferred to  the  proper  court  for  judicial  de- 
termination of  the  question  as  to  which  of 
the  applicants  was  entitled  to  a  patent 
from  the  state.  That,  in  accordance  with 
[147]  the  requests,  the  surveyed  general  re- 
ferred the  contest  to  the  district  court  of 
the  seventeenth  judicial  district  of  the  state 
in  and  for  the  county  of  Los  Angeles,  and 
in  pursuance  thereof  McFadden  commenced 
an  action  against  Banning  and  certain  other 
parties,  and  it  was  therein  adjudged  that 
Banning  was  entitled  to  purchase  and  to 
have  a  patent  issued  to  him,  and  that  Ban- 
ning was  entitled  to  the  approval  of  his 
survey  and  application  as  to  all  of  the  lands 
described  in  his  amendatory  application  of 
January  2,  1878,  except  a  certain  described 
tract,  and  was  entitled  to  comply  with  the 
further  provisions  of  the  law  to  purchase 
and  receive  a  patent  therefor. 

That  Banning,  on  April  5,  1880,  paid  the 
first  instalment  on  the  purchase  price  of  the 
land,  and,  on  April  10,  1880,  a  certificate 
of  purchase  was  issued  to  him  whereby  it 
was  certified  that  he  had  in  all  respects 
complied  with  the  law  and  was  entitled  to 
receive  a  patent;  that  subsequently,  on  De- 
cember 14,  1881,  another  certificate  was  is- 
sued certifying  that  full  payment  had  been 
made  to  the  state  and  that  the  decree  of 
the  court  in  the  contest  proceedings  had 
been  fully  complied  with,  and  that  he  was 
entitled  to  a  patent,  and  thereafter  on  De- 
cember 16,  1881,  a  patent  was  duly  issued 
in  accordance  with  the  certificate  and  the 
decree  of  the  district  court,  and  duly  re- 
corded in  the  office  of  the  recorder  of  Loa 
Angeles  county. 

That  the  defendants  have  succeeded  to  the 
rights  of  Banning  and  have  become  vested 
with  a  fee-simple  title  to  the  lands  para- 
mount to  the  claim  of  the  state  or  of  any 
person;  that  the  state  is  estopped  by  the 
judgment  of  the  district  court  and  the  pro- 
ceedings from  claiming  any  right,  title,  or 
interest  in  them  or  any  of  them,  and  that 
the  patent  and  proceedings  are  a  bar  to 
the  claim  of  the  state  or  of  anyone. 

As  a  third  defenee,  §§  312,  815-^19  [148] 
of  the  Code  of  Procedure  of  the  state  were 
pleaded  as  a  bar  to  the  action. 

The  trial  court  found  to  be  true  the 
allegations  of  the  state  as  to  the  character 
of  the  lands,  their  location  within  the  inner 
harbor  of  San  Pedro,  and  that,  since  1870, 
they  have  been  within  2  miles  of  the  city 

S40  U.  8. 


191^. 


BANNING  CO.  ▼.  CAL^ORNIA  KZ  bkl.  WEBB. 


14S-150 


of  San  Pedro  and  Wilmington,  being  partly 
witliin  the  limits  of  those  cities. 

The  oourt  also  found  the  fact  of  the  ap- 
plication of  Banning  as  alleged,  the  conflict 
with  McFadden,  its  reference  to  the  dis- 
trict court  for  decision,  the  decision  and 
judgment  rendered,  and  the  subsequent  pro- 
ceedings had,  the  payment  of  the  purchase 
price  of  the  lands,  and  the  issue  of  patent 
to  Banning.  It  further  found  that  the  pat- 
ent was  void,  that  no  title  vested  thereby  to 
any  land  below  ordinary  high  tide,  that  the 
state  was  not  estopped  by  the  judgment  or 
the  subsequent  proceedings,  and  that  they 
did  not  bar  the  claims  of  the  state,  nor  con- 
stitute an  adjudication  of  the  matters  in 
controversy  against  the  state,  or  debar  it 
from  prosecuting  this  action.  The  court 
mlso  decided  against  the  bar  of  the  sections 
of  the  Code  of  Procedure. 

From  these  findings  the  oourt  concluded 
And  decreed  that  the  state  was  the  owner  of 
the  lands,  and  that  the  defendants  had  not 
nor  had  either  of  them  any  estate  or  titl^ 
in  them.  A  motion  for  new  trial  was  made 
and  denied,  and  on  appeal  the  supreme  court 
«iBrmed  the  judgment  and  order  denying 
the  new  trial. 

There  is  no  dispute  about  the  facts.  Ban- 
ning complied  with  the  act  of  1863  and  sub- 
sequent acts  concerning  the  sale  of  the 
lands,  and  acquired  title  if  they  had  the 
efficacy  to  convey  it,  or  were  not  suspended 
in  their  operation  by  subsequent  legislation 
and  by  the  Constitution  of  the  state,  adopt- 
ed in  1879.1  The  supreme  court  denied  in 
[140]  some  respects  such  efficacy,  and  de- 
cided that  all  of  the  right  of  Banning  to 
acquire  title  to  the  lands  was  taken  away 
by  the  Constitution  of  1879,  and  the  legisla- 
tion to  which  we  shall  presently  refer. 

We  need  not  encumb^  the  opinion  with 
a  detail  of  the  statutes.  It  is  conceded  and 
the  supreme  court  has  decided  that  title 
could  be  acquired  to  the  tide  lands  of  the 
state  under  the  act  of  1868,  and  it  is  con- 

I'^No  individual,  partnership  or  corpora- 
tion, claiming  or  possessing  the  frontage  or 
tidal  lands  of  a  harbor,  bay,  inlet,  estuary, 
or  other  navigable  water  in  this  state,  shall 
be  permitted  to  exclude  the  right  of  way  to 
such  water  whenever  it  is  required  for  any 
public  purpose,  nor  to  destroy  or  obstruct 
the  free  navigation  of  such  water;  and  the 
legislature  shall  enact  such  laws  as  will 
give  the  most  liberal  construction  to  this 
provision,  so  that  access  to  tiie  navigable 
waters  of  this  state  shall  be  alwavs  anain- 
able  for  the  people  thereof."  Article  XV., 
•  2. 

The  Constitution  of  the  state  has  special 
relevancy  in  regard  to  contentions  not  be- 
fore us.  We  refer  to  and  insert  it  only  for 
the  sake  of  completeness,  it  being  referred 
to  throughout  the  argument. 
•0  li.  ed. 


ceded  that  Banning  proceeded  regularly  un- 
der that  statute  and  acquired  the  title  if 
other  statutes  or  the  Constitution  of  1879 
did  not  intervene  to  prevent.  It  is  upon 
the  efficacy  of  the  later  statutes  and  the 
Constitution  that  the  questions  in  the  case 
depend. 

The  specific  contention  of  plaintiffs  in 
error  is  that,  by  the  application  to  purchase 
the  lands  under  the  act  of  1863,  the  ex- 
penditure of  money  in  accordance  with  its 
provisions  for  a  survey  of  the  lands,  the 
statute  of  1868  and  the  Political  Code,  and 
the  judgment  in  the  McFadden  contest,  a 
contract  between  Banning  and  the  state 
was  made  which  the  Constitution  of  1879 
or  subsequent  statutes  could  not  impair. 

The  opposing  contention  is  that  no  in- 
violable right  of  purchase  vested  in  Banning 
or  contract  occurred  until  the  payment  by 
him  of  the  purchase  price  of  the  lands,  snd 
that  such  payment  was  after  the  adoption 
of  the  Constitution  and  legislation  with- 
drawing the  lands  from  sale.  In  other 
words,  that  the  lands  were  withdrawn  from 
sale  before  any  right  became  consummated. 

[150]  Some  dates  are  necessary  to  be 
given:  Banning's  application  was  made  in 
February,  1866.  It  was  allowed  to  repose 
without  attention  until  the  contest  initiated 
by  McFadden  in  April,  1878,  on  account  of 
McFadden's  application  that  overlapped  and 
conflicted  with  Banning's.  Judgment  was 
entered  in  this  contest  November  26,  1879. 
This  judgment  decided  Banning's  to  be  the 
prior  right.  He  made  a  flrst  payment  on 
the  lands  March  6, 1880.  The  certificate  was 
issued  April  10, 1880,  and  a  patent  executed 
December  16,  1881.  The  Constitution  was 
adopted  in  1879,  as  we  have  seen.  And  fur- 
ther, in  1872,  the  town  of  Wilmington  was 
incorporated,  and  the  supreme  court  held 
that  by  an  act  passed  April  4,  1870,  all 
lands  within  2  miles  of  "'any  town  or  vil- 
lage* "  (SUtutes  of  1869-70,  §  877)  were  ex- 
cluded from  sale.  This  provision  w:  s  re- 
peated in  the  Political  Code  of  1872,  §  3488. 
The  act  of  incorporation  of  Wilmington  was 
repealed  in  1887  (Stats.  1887,  108,  109), 
but  the  court  said:  "If,  in  point  of  law, 
Wilmington  was  an  incorporated  town 
.  .  .  during  the  interval  between  the 
passage  and  the  repeal  of  the  law,  then  all 
proceedings  to  purchase  the  lands  in  ques- 
tion taken  in  that  interval  would  be  invalid 
with  respect  to  land  within  the  2-mile 
limit."  [People  ex  rel.  Webb  v.  California 
fish  Co.  166  Cal.  603,  138  Pac  79.]  This 
being  the  law,  and  the  lands  lying  within 
2  miles  of  the  limits  of  Wilmington  as  in- 
corporated by  the  act  of  1872,  the  court 
said:  "The  patent  is  void  and  all  claims  of 
any  of  the  defendants  thereunder  are  in- 
vaUd.**     [166  Cal.  632,  138  Pac.  100.] 

57- 


160-163 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Temm, 


We  accept  this  construction  of  the  act  in- 
corporating Wilmington  and  the  effect  of 
the  act  of  April  4,  1870,  and  of  §  3488  of 
the  Political  Code  and  the  exclusion  thereby 
of  tide  lands  within  2  miles  of  Wilmington 
from  sale;  and  we  are  brought  to  the  short 
point  of  the  effect  of  the  application  and 
proceedings  under  it  by  the  payment  of  the 
first  instalment  of  the  purchase  price  of  the 
lands  and  the  other  ac^  relied  on,  whether 
they  consummated  [151]  a  contract  be- 
tween the  state  and  Banning,  protected  by 
the  Constitution  of  the  United  States. 

To  support  such  conclusion  plaintiffs  in 
error  cite  McConnaughy  v.  Pnnnoyer,  43 
Fed.  190,  in  whidi  Judge  Deady  expressed 
the  Tiew  of  an  Oregon  statute  which  offered 
the  lands  of  that  state  for  sale,  that  such 
an  application  was  "a  written  acceptance  of 
the  offer  of  the  state,  in  relation  to  the 
land  of  the  state  described  therein,"  and 
they  cite  the  same  case  in  this  court  (140 
U.  S.  1,  18,  86  L.  ed.  363,  368,  11  Sup.  a. 
Rep.  699),  where  that  view  was  pronounced 
forcible  and  might  have  been  conclusive  but 
for  the  opposing  consideration  that  suggest- 
ed itself  that  the  bare  application  itself, 
unaccompanied  by  the  payment  of  any  con- 
sideration, partook  of  the  nature  of  a  pre- 
emption claim  under  the  laws  of  the  United 
States,  with  reference  to  which  it  had  been 
held  that  the  occupancy  and  improvement 
of  the  land  by  the  settler  and  the  filing  of 
the  declaratory  statement  of  such  fact  con- 
ferred no  vested  right  as  against  the  gov- 
ernment of  the  United  States  until  all  of 
the  preliminary  steps  prescribed  by  law,  in- 
cluding the  payment  of  the  price,  were  com- 
plied with.  Yosemite  Valley  Case  (Hutch- 
ings  V.  Low),  16  Wall.  77,  21  L.  ed.  82,  and 
Frisbie  v.  Whitney,  9  Wall.  187,  19  L.  ed. 
668,  were  cited.  The  court  found  it  unneces- 
sary to  determine  between  those  views. 

The  cited  cases  were  approved  in  Camp- 
bell V.  Wade,  132  U.  S.  34,  38,  33  L.  ed.  240, 
242,  10  Sup.  Ct.  Rep.  9,  and  their  principle 
applied  to  statutes  of  the  state  of  Texas, 
one  offering  land  for  sale  and  the  other  with- 
drawing it  before  the  performance  of  the 
conditions  which  gave  a  right  of  purchase. 
These  conditions  were  an  application  to  the 
surveyor  of  the  county  in  which  the  land 
was  situated  to  siurvey  the  land  and  within 
sixty  days  after  survey  to  file  it  in  the  Gen- 
eral Land  OflSoe.  Within  sixty  days  after 
such  filing,  it  was  provided  by  the  statute, 
it  should  be  the  right  of  the  applicant  to 
pay  the  purchase  money,  and  upon  doing  so 
to  receive  patent  for  the  land.  ''But  for  this 
declaration  of  the  act,**  this  [152]  oourt 
said,  by  Mr.  Justice  Field,  '-we  might  doubt 
whether  a  rig^t  to  purchase  could  be  con- 
sidered as  conferred  by  the  mere  survey  so 
as  to  bind  the  state.** 
674 


f  Considering  the  same  statute  in  Telfener 
V.  Russ,  146  U.  S.  622,  632,  36  L.  ed.  800, 
806,  12  Sup.  Ct.  Rep.  930,  it  was  said  that 
the  right  was  "designated  in  the  decision  of 
the  supreme  oourt  of  the  state  as  a  vested 
right  that  could  not  be  defeated  by  subse- 
quent legislation." 

Plaintiffs  in  error  eite  Northern  P.  R.  Co. 
V.  De  Lacey,  174  U.  S.  622,  43  L.  de.  1111, 
19  Sup.  Ct.  Rep.  791,  as  in  some  way  modi- 
fying the  doctrine  of  the  Yosemite  Valley 
Case  and  of  Fnsbie  v.  Whitney.  That  case 
involved  the  question  whether  a  claim  of 
pre-emption  had,  under  the  circumstances 
stated  in  the  case,  so  far  attadied  to  the 
land  in  controversy  that  it  did  not  pass 
under  a  grant  to  the  railroad  company  as 
land  to  which  the  United  SUtes  had  "full 
title,  not  reserved,  sold,  granted,  or  other- 
wise appropriated,  and  free  from  pre- 
emption, or  other  claims  or  rights."  It  was 
held  to  have  so  passed;  in  other  words,  that 
the  claim  had  not  attached  to  the  land,  De- 
Lacy  not  having  performed  the  conditions 
of  its  pre-emption.  The  case  has  no  vahic 
in  the  solution  of  the  questions  presented 
by  the  case  at  bar.  Nor  have  the  other 
cases  cited  by  plaintiffs  in  error  for  the 
proposition  that  an  offer  made  by  a  state, 
though  no  particular  person  be  designated, 
and  accepted,  constitutes  a  contract  which 
will  be  protected  by  the  Federal  Constitu- 
tion. The  proposition  in  its  generality  may 
be  admitted.  Its  illustration  and  applica- 
tion in  the  cited  cases  it  would  protract 
this  opinion  unnecessarily  to  detail.  It  is 
enough  to  say  that  the  cases  are  not 
apposite.  The  offer  and  acceptance  must 
have  the  characteristics  of  a  bargain,  must 
be  conventional  counterparts,  as  in  the  cited 
cases,  and  of  which  we  may  say  generally 
franchises  were  offered  on  one  part  and  ac- 
cepted on  the  other  by  the  undertaking  of 
works  costly  to  construct  and  costly  to 
maintain,  and  from  which  the  public  de- 
rived great  benefit. 

[153]  But  even  in  such  case  it  was 
pointed  out  in  Wisconsin  &  M.  R.  Co.  v. 
Powers,  191  U.  S.  379,  386,  48  L.  ed.  229, 
231,  24  Sup.  Ct.  Rep.  107,  that  the  offer  of  a 
state  does  not  necessarily  imply  a  contract. 
It  may  be  of  encouragement  merely,  "hold- 
ing out  a  hope,  but  not  amounting  to  a  cove- 
nant." The  offer  of  the  state  was  an  exemp- 
tion from  taxation,  and  the  asserted  accept- 
ance of  the  offer  which  was  said  to  oonaum- 
mate  a  contract  was  the  building  of  a  rail- 
road, and  it  was  observed  that  the  "building 
and  operating  of  the  railroad  was  a  suffi- 
cient detriment  or  change  of  position  to  con- 
stitute a  consideration  if  the  other  elements 
were  present.  But  the  other  elements  are 
that  the  promise  and  the  detriment  are  the 
'  conventional  inducements  each  for  the  other. 

246  V.  8. 


1916. 


BANNING  CO.  t.  CALIF«DRNIA  ex  bel.  WEBB 


153-155 


No  matter  what  the  aetual  motive  may  have 
been,  by  the  express  or  implied  terms  of  the 
supposed  contract,  the  promise  and  con- 
sideration must  purport  to  be  the  motive 
each  for  the  other,  in  whole  or  at  least  in 
part.  It  is  not  enough  that  the  promise 
induces  the  detriment  or  that  the  detriment 
induces  the  promise,  if  the  other  half  is 
wanting."  The  ''offer*  and  "acceptance"  we 
held  not  to  constitute  a  contract.  This  com- 
ment is  applicable  to  the  case  at  bar,  and 
the  supreme  court  of  the  state  has  decided, 
as  we  shall  presently  see,  that  the  filing  of 
the  application  does  not  constitute  a  bind- 
ing contract  upon  the  part  of  the  applicant 
and  the  state. 

But  plaintiffs  in  error  say  that  this  court 
is  not  bound,  against  the  invocation  of  the 
contract  clause  of  the  Constitution  of  the 
United  States,  by  the  decision  of  the  su- 
preme court  of  the  state  of  California  as  to 
the  construction  and  effect  of  the  act  of 
1863,  and  subsequent  legislation  supplement- 
ing its  provisions.  Louisiana  R.  &  Nav.  Co. 
V.  Behrman,  235  U.  S.  164,  59  L.  ed.  175,  35 
8up.  Ct.  Rep.  62;  New  York  Electric  Lines 
Co.  V.  Empire  City  Subway  Co.  235  U.  S. 
179,  59  L.  ed.  184,  L.ILA.  — ,  — ,  35  Sup. 
Ct.  Rep.  72,  Ann.  Cas.  1915A,  906.  And 
they  insist  that  the  language  of  the  act  ex- 
plicitly offered  the  lands  for  sale,  which 
offer  was  accepted  by  Banning  through  his 
application,  the  oath  taken  by  him,  and  the 
expenditures  [154]  made  by  him,  and  that 
this  construction  has  supporting  strength 
from  the  judicial  contest  authorized  by  the 
act,  and  that  the  judgment  rendered  in  such 
contest  was  effective  not  only  against  the 
losing  contestant)  but  against  the  state  as 
welL 

If  we  apply  the  analogy  of  the  pre-emp- 
tion laws  we  shall  have  to  reject  immedi- 
ately the  contention  based  on  the  proceed- 
ings aside  from  the  judgment  rendered  upon 
a  conflict  of  applications,  and  against  the 
asserted  effect  of  such  judgment^  we  have 
also  the  analogy  of  a  conflict  of  claims  un- 
der the  mining  laws  of  the-  United  States. 
In  other  words,  the  state  made  an  offer  to 
sell,  which  might  have  been  perfected  into 
an  inviolable  right,  and  provided  for  a  con- 
test of  conflicting  claims,  not  as  against  it- 
self, but  as  to  the  rights  of  the  contending 
parties.  The  rightful  claimant  being  deter- 
mined and  his  right  of  purchase  perfected, 
the  state  is  then  bound  by  its  offer,  and  is 
then,  and  not  until  then,  precluded  from 
legislation  withdrawing  it.  And  the  right 
of  purchase  is  perfected  only  by  the  pay- 
m«it  of  some  instalment  of  the  purchase 
price  of  the  land.  It  is  only  then  that  the 
state  has  received  anything  of  value  from 
the  applicant.  What  he  has  done  prior,  the  I 
expenditures  he  haa  made,  are  but  the 
•0  Ii.  ed. 


qualifications  to  become  a  purchaser,  not 
binding  him  to  proceed,  nor  binding  the 
state  to  wait  for  that  which  may  never  bo 
done  before  it  determines  on  other  uses  or 
disposition  of  the  lands.  And  to  wait 
might  mean  serious  embarrassment.  We 
have  seen  in  the  case  at  bar  that  Banning 
applied  first  in  1866.  His  application  was 
permitted  to  repose  in  the  files  of  the  coun- 
ty or  state  officers  until  1878,  when  activ- 
ity upon  it  was  provoked  by  another  appli- 
cation. 

Plaintiffs  in  error  have  been  unable  to 
cite  a  single  decision  in  sanction  of  their 
contention.  The  supreme  court  refers  to 
one  (Hinckley  t.  Fowler,  43  Cal.  63),  de- 
cided in  1872,  as  possibly  being  urged  to 
support  it.  [155]  If  we  may  venture  to  ex- 
press our  understanding  of  that  case,  we 
should  say  that  it  is  seriously  disputable  if 
it  so  decides.  However,  the  court  said  that 
the  case,  so  far  as  it  announced  such  view, 
that  is,  "so  far  as  it  announces  the  rule 
that  the  filing  of  the  application  creates  a 
contract  binding  on  the  state  before  any 
part  of  the  price  is  paid,  must  be  considered 
as  overruled  by  the  later  decisions."  Mes- 
senger V.  Kingsbury,  158  Cal.  615,  112  Pac. 
65,  and  cases  cited.  Also  Polk  v.  Sleeper, 
158  Cal.  632,  112  Pae.  179.  And  these  cases 
have  become  rules  of  property  and  factors 
in  decision, — indeed,  would  determine  it, 
even  if  we  had  doubt  of  the  construction  of 
the  applicable  statutes,  under  the  ruling  of 
Burgess  v.  Seligman,  107  U.  S.  20,  27  L. 
ed.  359,  2  Sup.  Ct.  Rep.  10,  and  many  subse- 
quent cases. 

A  somewhat  confused  contention  is  made 
that  by  the  act  of  March  28,  1868,  and 
under  the  Political  Code  the  rights  of  plain* 
tiffs  in  error  were  preserved,  and  yet  it 
seems  to  be  contended  that,  though  both 
act  and  Code  contain  a  provision  excluding 
from  their  operation  tide  lands  within  2 
miles  of  any  town  or  village,  such  provision 
is  not  applicable  to  lands  theretofore  applied 
for.  The  contentions  we  may  suppose  were 
rejected  by  the  supreme  court.  And  plain* 
tiffs  in  error  say  that  a  decision  either  way 
cannot  affect  their  "prior  contention,  that 
a  binding  contract  of  sale  was  created  by 
the  acceptance  of  the  state's  offer,  throu|^ 
the  filing  in  1866  of  an  application  to  pur- 
chase under  the  act  of  1863.**  Further  dis- 
cussion of  the  coQtentions  is  therefore  un- 
necessary. Nor  is  further  discussion  of  the 
effect  of  the  judgment  in  the  contest  pro- 
ceedings necessary.  If,  by  the  incorporation 
of  Wilmington  in  1872,  the  act  of  April, 
1870,  and  the  Political  Code  of  1872,  which 
excluded  all  tide  lands  within  2  miles  of 
Wilmington,  became  effective,  the  lands 
were  withdrawn  from  sale,  and  plaintiffs 
in  error  could  have  acquired  no  rights  bv 

r 


155,  156 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Cot.  Tebm, 


proceedings  subsequent  to  such  incorpora- 
tion. This,  we  have  seen,  was  the  judgment 
of  [156]  the  supreme  court  of  the  state. 
The  court  had  decided  in  prior  cases  that 
the  state  was  not  a  party  to  the  contest 
(Cunningham  v.  Crowley,  51  Cal.  128,  133) ; 
that  the  contest  decided  only  the  rights  of 
the  opposing  parties  (Berry  y.  Cammet,  44 
Cal.  347;  Polk  y.  Sleeper,  supra). 

The  judgment  undoubtedly  is  conclusive 
between  the  parties,  determines  their  rights, 
as  between  Uiemselves,  and  establishes  the 
privilege  to  purchase  the  lands  acquired  by 
the  prior  application,  even  against  the  state, 
**80  long  09  the  statute  retnained  in  force,'* 
to  use  the  language  of  Hinckley  y.  Fowler, 
supra.  This  explanation  may  be  given  of 
all  the  cases  cited  by  plaintiffs  in  error  upon 
the  effect  of  the  judgment.^  As  long  as  the 
statute  existed,  rights  could  be  acquired 
under  it.  Upon  its  repeal  or  limitation, 
such  opportunity  was  taken  away. 

Judgment  affirmed. 


CARNEGIE  STEEL  OOBiPANY,  Appt., 

y. 

UNITED  STATES. 
(See  S.  C.  Reporter's  ed.  156-166.) 

United  States  —  oontraots  —  ezcuae  for 
delay  —  unavoidable  cause. 

Delay  in  the  performance  of  a  con- 
tract to  manufacture  18-inch  face-hardened 
armor  plate  for  the  United  States,  caused 
by  the  manufacturer's  ignorance,  shared  by 
the  world  when  the  contract  was  made,  of 
the  necessary  scientific  process,  was  not  due 
to  "unavoidable  causes,  such  as  fires,  storms, 
labor  strikes,  actions  of  the  United  States, 
and  so  forth,"  within  the  meaning  of  the 
provision  of  the  contract  that,  in  computing 
the  liquidated  damages  which  might  be  de- 
ducted by  the  United  States  from  the  con- 
tract price  for  delay,  the  manufacturer 
should  be  given  credit  for  delays  due  to  such 
causes. 

(For   other   cases,   see   United   States,   VI.   e. 
In  Digest  Sap.  Ct.  1908.] 

[No.  171.] 

1  Cadierque  v.  Duran,  49  Cal.  350;  Christ- 
man  V.  Brainard,  51  Cal.  5.34;  Wright  v. 
Laugenour.  55  Cal.  280;  Dillon  v.  Saloude, 
68  Cal.  267,  9  Pac.  162;  Cushing  v.  Keslar, 
68  Cal.  473,  9  Pac.  659;  Garfield  v.  Wilson, 
74  Cal.  175, 15  Pac.  620;  Anthony  v.  Jillson, 
83  Gal.  299,  300,  23  Pac.  419,  16  Mor.  Min. 
Rep.  26;  Goldberg  v.  Thompson,  96  Cal. 
117,  80  Pac  1019. 

Note.— On  the  effect  of  intervening  im- 
possibility  to   perform    contract    as   relief 
from  the  obligation — see  note  to  Stewart  v. 
Stone,  14  L.RjL  216. 
576 


Argued  January  21,   1916.     Decided  Feb- 
ruary 21,  1916. 

APPBAL  from  the  Court  of  Claims  to 
review  a  judgment  sustaining  in  part 
a  demurrer  of  the  United  States  to  a  peti- 
tion for  the  recovery  of  an  amount  alleged 
to  be  due  claimant  under  a  oontraet  with 
the  United  States.    Affirmed. 

See  same  case  below,  49  Ct.  CI.  403. 
The  facts  are  stated  in  the  opinion. 

Mr.  James  H.  Hayden  argued  the  cause 
and  filed  a  brief  for  appellant: 

The  contract  in  suit  was  drawn  by  the 
Bureau  of  Ordnance,  and  any  language  of 
doubtful  meaning  contained  in  it  should  be 
given  an  interpretation  favorable  to  the 
company,  rather  than  one  favorable  to  the 
Ordnance  Department. 

Noonan  v.  Bradley,  9  Wall.  394,  19  L.  ed. 
757;  Garrison  v.  United  States,  7  WalL 
688,  19  L.  ed.  277;  Orient  Mut  Ins.  Co.  ▼. 
Wriest,  1  Wall.  456,  17  L.  ed.  505. 

The  proviso  in  the  contract  relates  to  the 
forfeiture  by  the  company  of  part  of  the 
sum  that  the  Department  agreed  to  pay  for 
the  armor  actually  furnished.  Clauses  of 
contracts  and  of  statutes  relating  to  for- 
feitures invariably  receive  the  one  of  two 
or  more  possible  interpretations  which  it 
most  favorable  to  the  party  against  whom 
the  forfeiture  is  asserted. 

Philadelphia,  W.  &  B.  R.  Co.  ▼.  Howard, 
13  How.  307,  340,  14  L.  ed.  157,  171;  New 
York  Indians  v.  United  States,  170  U.  S.  1, 
25,  42  L.  ed.  927,  935,  18  Sup.  Ct.  Rep. 
531. 

Where  the  meaning  of  an  instrument  or 
statute  is  obscure  and  the  language  em- 
ployed is  a  proper  subject  for  interpreta- 
tion, courts  will  give  effect  to  every  pro- 
vision and  word,  and  will  not  treat  any 
part  of  it  as  meaningless  or  nugatory,  un- 
less its  provisions  are  in  hopeless  conflict. 

Philadelphia  v.  River  Front  R.  Co.  133 
Pa.  134,  19  Atl.  356. 

The  proviso  does  not  purport  to  be  com- 
plete in  itself,  and  on  its  face  bears  evi- 
dence of  its  incompleteness.  The  expres- 
sion "such  as"  and  the  abbreviation  "etc** 
— a  catch-all— demonstrate  that  fact.  It 
follows  that  the  doctrine  eapreeBio  umus 
eat  excluaio  alterUu  is  not  to  be  followed 
in  determining  the  true  intent  and  mean- 
ing of  the  proviso. 

United  States  v.  Barnes,  222  U.  S.  613, 
56  L.  ed.  291,  32  Sup.  Ct.  Rep.  417. 

Presumably  the  Ordnance  Department  be- 
lieved tha^t  delay  would  be  detrimental  to 
the  government,  and  the  penal  clauses  ot 
the  contract  were  designed  to  prevent  it; 
but  it  is  evident  that  the  Department  real- 
iced  that  difficulties  might  be  encountered 

S40  V.  8. 


191ft. 


CARNEGIE  STEEL  CX).  v.  UNITED  STATES. 


160,  161 


Rowe  ▼.  Peabody,  207  Mass.  226,  08  N.  E. 
604;  Marsh  v.  Johnston,  125  App.  Div.  507, 
100  N.  Y.  Supp.  1106;  Lorillard  v.  Clyde, 
142  N.  Y.  456,  24  L.R.A.  113,  37  N.  E.  489 ; 
Buffalo  &  L.  Land  Co.  t.  Bellevue  Land  & 
Improv.  Co.  165  N.  Y.  247,  51  LJLA.  061, 
50  N.  E.  5;  Chicago  &  N.  W.  R.  Co.  v. 
Sawyer,  60  lU.  285,  18  Am.  Rep.  613; 
Beach,  Contr.  §  217;  Chitty,  Contr.  272; 
Day  V.  United  States,  48  Ct.  a.  128. 

Mr.  Justice  McKenna  delivered  the  opin- 
ion of  the  court: 

Petition  in  the  court  of  claims  for  the 
recovery  of  $8,506.36,  alleged  to  be  due 
claimant  as  a  balance  of  the  price  of  armor 
plate  furnished  the  government  under  a  con- 
tract between  it  and  claimant. 

The  contract  is  an  elaborate  one  and  by 
it  claimant  engaged  to  manufacture  for  the 
Ordnance  Department  armor  plates  of  a  cer- 
tain ^  designated  thickness,  in  conformity 
with  instructions,  specifications,  and  draw- 
ings attached  to  and  made  a  part  of  the 
contract.  And  claimant  agreed  to  provide 
certain  of  the  18*inch  plates  for  the  pur- 
pose of  the  ballistic  test  prescribed  by  the 
specifications,  and  that  such  plates,  when 
subjected  to  the  ballistic  test,  should  fulfil 
certain  requirements  set  forth  in  the  speci- 
fications. The  dates  of  delivery  were  to  be 
on  or  before  September  7,  1011,  and  No- 
vember 7, 1011,  and  the  place  of  delivery  the 
Bethlehem  Steel  Company,  South  Bethle- 
hem, Pennsylvania. 

The  government  engaged  to  receive  the 
plates  when  manufactured,  tested,  and  ap- 
proved as  provided,  and  make  payment  for 
them  in  instalments'  from  time  to  time  as 
the  manufacture  of  the  armor  and  material 
progressed  [161]  and  after  delivery. 
In  the  event  of  the  claimant  failing 
to  prosecute  the  manufacture  of  the 
armor  and  material  properly,  or  to  com- 
plete delivery  on  or  before  the  dates 
named  in  the  contract,  the  Cliief  of  Ord- 
nance might  complete  such  manufac- 
ture at  the  expense  of  claimant,  charg- 
ing it  with  the  cost  thereof  in  excess 
of  the  contract  price;  ''or  else  (2)  waive  the 
time  limit  named  in  the  contract  and  permit 
the  claimant  to  complete  the  delivery  of  the 
armor  and  material  within  a  reasonable 
time,  and  thereupon  deduct  from  the  sum 
stipulated  to  be  paid  the  claimant  for  all 
of  the  armor  and  material,  as  liquidated 
damages,  a  sum  equal  to .  Vso  ^^  ^  P^ 
centum  of  the  contract  price  of  all  armor 
and  material  remaining  undelivered  on  No- 
vember 7, 1011,  for  each  day  of  delay  in  its 
delivery;  Provided,  however,  that  in  com- 
puting the  amount  of  any  such  deduction, 
the  claimant  should  be  given  credit  for  de- 
Satterlee  v.  United  States,  80  Ct.  CL  33;  lays  occurring  during  the  performance  of 
40  li.  ed.  87  577 


during  the  manufacture  of  the  armor  for 
which  it  would  be  quite  unjust  to  hold  the 
company  reflpimsible,  or  for  which  no  con- 
tractor would  assume  responsibility.  Ac- 
cordingly, it  was  provided  that  the  company 
should  not  be  held  responsible  for  delay 
found  to  have  been  produced  by  causes  of 
a  certain  kind, — not  that  the  delay  due  to 
such  causes  would  be  less  detrimental  to 
the  government,  but  because  the  company's 
excuse  would  i^ppeal  to  the  Department's 
sense  of  right.  That  was  the  office  of  the 
proviso. 

Minis  V.  United  States,  15  Pet.  423,  10  L. 
ed  701;  White  v.  United  States,  101  U.  S. 
545,  48  L.  ed.  206,  24  Sup.  Ct.  Rep.  171. 

Is  it  not  unreas(mabl6  to  assume  that  the 
Department  selected,  arbitrarily,  four  of 
the  many  unavoidable  causes  possessing  the 
same  characteristics,  and  said  that  the 
company  would  be  excused  if  the  perform- 
ance of  the  contract  should  be  delayed  by 
one  of  the  four  causes,  but  not  otherwise? 

Weiss  T.  Swift  &  Co.  36  Pa.  Super.  Ct. 
376. 

In  the  present  instance  the  facts  were  not 
such  as  to  warrant  an  attempt  to  apply 
the  maxim  60>pre99%o  uniuM  est  esfolusio 
iUterius, 

Broom,  Legal  Maxims,  8th  ed.  506,  515; 
Broom,  Legal  Maxims,  7th  eJ.  680. 

Nor  is  this  case  for  the  application  of 
the  doctrine  of  ejiudem  gtnerU, 

United  SUtes  v.  Mescall,  215  U.  S.  26,  64 
L.  ed.  77,  30  Sup.  Ct  R^.  10;  Chicago, 
M.  A  St  P.  R.  Co.  T.  Hoyt,  140  U.  S.  1,  14, 
37  L.  ed.  625,  620,  13  Sup.  Ct.  Rep.  770; 
Ettdlich,  Interpretation  of  Statutes,  §  112; 
McReynolds  v.  People,  230  111.  623,  82  N.  E. 
045;  Brown  v.  Corbin,  40  Minn.  508,  42 
N.  W.  481. 

Assistant  Attorney  General  Thompson 
argued  the  cause  and  filed  a  brief  for  ap- 
pellee: 

The  delays  were  not  within  the  terms  of 
the  contract,  such  as  fires,  storms,  labor 
strikes,  actions  of  the  United  States,  etc., 
and  therefore  appellant  was  liable  for  the 
same. 

Dermott  v.  Jones  (Ingle  v.  Jones)  2 
Wall.  1,  17  L.  ed.  762;  Hanthorn  v.  Quinn, 
42  Or.  1,  60  Pac.  817;  The  Harriman,  0 
WaU.  161,  19  L.  ed.  620;  Florida  R.  Co.  v. 
Smith,  21  Wall.  266,  263,  22  L.  ed.  613, 
516;  Smooths  Case,  16  Wall  30,  46,  21 
L.  ed.  107,  110;  Jacksonville,  M.  P.  R.  & 
Nav.  Co.  V.  Hooper,  160  U.  S.  614,  527, 
40  L.  ed.  616,  624,  16  Sup.  Ct  Rep.  370; 
Simpson  v.  United  States,  172  U.  S.  372,  43 
L.  ed.  482,  10  Sup.  Ct.  Rep.  212;  United 
States  V.  Gleason,  176  U.  S.  588,  602,  44 
Iw  ed.   284,   280.   20   Sup.    Ct.   R^.   228; 


161-164 


SlJPRfiME  COURT  OP  THE  UNITED  STATES. 


Oct.  Tmc, 


the  contract,  which  the  Chief  of  Ordimnce 
might  determine  to  have  been  due  to  un- 
avoidable causes,  such  as  fires,  storms,  labor 
strikes,  actions  of  the  United  States,  and 
so  forth,'  and  that  the  date  of  completion 
of  the  delivery,  for  the  purposes  of  the  final 
settlement  between  the  parties,  should  be  a 
date  to  be  ascertained  by  deducting,  from  the 
whole  period  between  the  signing  of  the 
contract  and  the  date  of  the  actual  delivery, 
all  delays  which  were  found  to  have  been 
due  to  unavoidable  causes." 

It  is  alleged  that  claimant  encountered 
difficulties  which  were  unforeseen  by  both 
parties  when  the  contract  was  made,  and 
were  then  unforseeable,  and  in  consequence 
thereof  the  delivery  of  the  armor  and  per- 
taining material  was  delayed  unavoidably. 

That  prior  to  the  manufacture  of  the  ar- 
mor no  face-hardened  armor  18  inches  in 
thickness  had  been  manufactured  in  this  or 
any  foreign  country,  and  no  information 
with  respect  to  the  process  or  processes  to 
be  employed  in  its  manufacture  was  obtain- 
able. 

[162]  That,  for  the  purpose  of  learn- 
ing what  manner  of  treatment  or  face- 
hardening  process  should  be  applied  to 
the  18-inch  plates,  and  in  order  that 
they  might  attain  the  highest  degree 
of  efficiency  posuble,  and  meet  all  the 
requirements  of  the  specifications,  claim- 
ant completed  one  of  the  plates,  ap- 
plying to  it  a  treatment  or  face-harden- 
ing process  deduced  from  the  formula  which 
claimant  and  every  other  manufacturer  of 
armor  plate  in  this  and  every  foreign  coun- 
try had  followed  in  the  manufacture  of 
armor  plate,  and  which  was  recognized  by 
authorities  on  the  subject  as  the  one  which 
would  give  the  best  results. 

That  upon  its  completion  the  plate  was, 
on  April  19,  1911,  subjected  to  the  ballistic 
test  and  it  met  the  requirements  of  the 
specifications.  Thereupon  claimant  proceed- 
ed to  complete  all  of  the  plates,  certain  of 
which  were  selected  for  the  purpose  of  the 
ballistic  test  and  failed  to  fulfil  the  require- 
ments of  the  specifications.  Other  plates 
were  selected  and  failed.  Thereupon  claim- 
ant, with  all  due  diligence  and  despatch, 
made  or  caused  to  be  made  by  metallurgical 
experts  exhaustive  tests  and  experiments, 
and  it  was  ascertained  that,  in  order  to  pass 
the  test  required  by  the  Ordnance  Depart- 
ment, the  plates  must  possess  certain  me- 
tallurgical qualities  or  conditions  which,  up 
to  that  time,  were  unknown  to  anyone,  and 
the  necessity  for  which  was  not  foreseeable 
when  the  contract  was  made.  In  conduct- 
ing the  test  it  was  necessary  to  use  plates 
of  full  size  and  the  tests  were  conducted 
with  all  due  diligence  and  despatch.  From 
the  p]Mte§  thus  tested  the  Ordnance  Depart- 


ment  selected  a  third  plate  which  was  test- 
ed January  19th  and  24th,  1912,  and  waa 
found  to  fulfil  the  requirements  of  the  sped* 
fications.  Claimant  in  due  course  flnishad 
all  of  the  plates  which  the  contract  calM 
for,  and  they  were  approved  and  delivarad 
as  in  the  manner  prescribed. 

It  is  alleged  that  by  reason  of  the  cir* 
cumstances  detailed  [163]  there  were  de- 
lays in  the  delivery  of  the  plates,  and  thmt 
the  delays  were  due  to  causes  which  were 
unavoidable  within  the  meaning  of  the  con- 
tract. 

On  account  of  the  delays,  however,  tlie 
Ordnance  Department  proposed  to  deduet 
from  the  contract  price  of  the  armor  and 
pertaining  material  the  sum  of  $8,598.16  aa 
liquidated  damages  on  account  of  a  portloB 
of  the  delay.  Claimant  made  protest,  as- 
serting that  the  delays  were  due  to  causes 
provided  for  in  articles  4  and  8  of  the  con- 
tract. 

By  article  4  it  was  provided  that  in  case 
of  failure  of  claimant  to  deliver  any  or  all 
of  the  armor  contracted  for  there  would  be 
deducted  from  any  payment  to  be  made  to 

claimant  Vso  ^^  ^  P®^  ^^^^  ^^  ^^  contract 
price  of  all  of  the  armor  remaining  unde- 
livered for  each  and  every  day  of  delay  in 
the  completion  of  the  contract,  not,  however, 
by  way  of  penalty,  but  as  liquidated  dam- 
ages. 

It  was,  however,  provided  in  article  8  of 
the  contract,  that  the  Chief  of  Ordnance,  in 
case  of  delay  in  the  delivery  of  the  armor, 
as  provided  in  article  1  of  the  contract,  in- 
stead of  completing  the  manufacture  or  de- 
livery of  the  material  at  the  expense  of 
claimant,  might  waive  the  time  limit  and 
deduct  from  any  payment  due  or  to  become 
due  the  liquidated  damages,  if  any,  provided 
for  in  article  4:  "Provided,  however,  thai 
in  making  final  settlement  based  upon  tlie 
date  of  completion  of  the  delivery,  the  psriy 
of  the  first  part  [claimant]  shall  receive 
credit  for  such  delays  occurring  during  the 
performance  of  the  contract  as  the  Chief 
of  Ordnance  may  determine  to  have  been 
due  to  unavoidable  causes,  such  as  firea, 
storms,  labor  strikes,  action  of  the  United 
States,  etc.,  and  the  date  of  completion  ahaD 
be  considered  for  the  purposes  of  final  settle- 
ment as  the  date  of  the  actual  completion 
of  the  delivery,  less  the  delays  due  to  un- 
avoidable causes;  but  none  of  the  above 
causes  shall  constitute  a  basis  for  an  action 
against  the  United  States  for  damages." 

[164]  The  government  filed  a  demurrer 
to  the  petition.  It  was  sustained  ne 
to  $7,564.08  of  the  amount  sued  lor 
and  overruled  aa  to  $1,081.08.  Tl» 
damages  on  account  of  delay  to  the- 
amount  of  the  latter  sum  the  court 
found  was  due  to  the  government's  delaj* 

S40  U.  8. 


1015. 


KANSAS  CITY  8.  R.  CX).  v.  GUARDIAN  TRUST  00. 


164-166 


The  other  sum,  that  is  $7,564.08,  the  court 
attributed  to  the  claimant,  the  court  Bay- 
ing, through  Chief  Justice  Campbell,  that 
'Hhe  difficulties  imder  which  claimant  la- 
bored •  .  .  were  not  due  to  'unavoidable 
causes'  within  the  meaning  of  those  terms 
in  the  contract,  and,  though  unforeseen,  did 
not  render  the  performance  impossible;"  and 
added:  The  court  cannot  make  a  different 
contract  from  that  which  the  parties  made 
for  themselves.  The  Harriman,  9  Wall. 
161,  172, 19  L.  ed.  629,  633;  Sun  Printing  & 
Pub.  Asso.  V.  Moore,  183  U.  S.  642,  46  L. 
ed.  366,  22  Sup.  Ct.  Rep.  240;  Satterlee's 
Case,  30  Ct.  CI.  31;  Pacific  Hardware  &  Steel 
Co.  V.  United  SUtes,  49  Ct.  CL  327."  [40 
Ct.  CI.  407.] 

It  will  be  observed  that  the  point  in  the 
case  18  a  short  one.  It  is  whether  the 
causes  of  delay  alleged  in  the  petition  were 
unavoidable,  or  were  of  the  character  de- 
scribed in  the  contract;  that  is,  "such  as 
fires,  storms,  labor  strikes,  action  of  the 
United  States,  etc."  The  contention  that 
the  alleged  causes  can  be  assigned  to  such 
category  creates  some  surprise.  It  would 
seem  that  the  very  essence  of  the  promise 
of  a  contract  to  deliver  articles  is  ability 
to  procure  or  make  them.  But  claimant 
says  its  ignorance  was  not  peculiar,  that  it 
was  shared  by  the  world,  and  no  one  knew 
that  the  process  adequate  to  produce  14- 
inch  armor  plate  would  not  produce  18- inch 
armor  plate.  Yet  claimant  shows  that  its 
own  experiments  demonstrated  the  inade- 
quacy of  the  accepted  formula.  A  success- 
ful process  was  therefore  foreseeable  and 
discoverable.  Ant  it  would  seem  to  have 
been  an  obvious  prudence  to  have  preceded 
manufacture,  if  not  engagement,  by  experi- 
ment rather  than  risk  failure  and  delay  and 
their  consequent  penalties  by  extending  an 
old  formula  to  a  new  condition. 

[165]  But  even  if  this  cannot  be  asserted, 
the  case  falls  within  The  Harriman,  supra, 
where  it  is  said  that  "the  principle  deducible 
from  the'  authorities  is  that  if  what  is 
agreed  to  be  done  is  possible  and  lawful,  it 
must  be  done.  Difficulty  or  improbability 
of  accomplishing  the  undertaking  will  not 
avail  the  defendant.  It  must  be  shown  that 
the  thing  cannot  by  any  means  be  affected. 
Nothing  short  of  this  will  excuse  nonper- 
formance." 

And  it  was  held  in  Sun  Printing  &  Pub. 
Asso.  V.  Moore,  183  U.  S.  642,  46  L.  ed.  360, 
22  Sup.  Ct.  Rep.  240,  that  "it  was  a  well- 
settled  rule  of  law  that  if  a  party  by  his 
contract  charges  himself  with  an  obligation 
possible  to  be  performed,  he  must  make  it 
good,  unless  its  performance  is  rendered  im- 
possible by  the  act  of  God,  the  law,  or 
the  other  party.  Unforeseen  difficulties, 
however  great,  will  not  excuse  him."  Cases 
60  L.  ed. 


were  cited,  and  it  was  said  the  principle  waa 
sustained  by  many  adjudications. 

It  was  said,  however,  in  The  Harriman, 
that  **the  answer  to  the  objection  of  hard- 
ship in  all  such  cases  is  that  it  might  have 
been  guarded  against  by  a  proper  stipula- 
tion," and  such  a  stipulation  is  relied  on  in 
the  case  at  bar.  Ignorance  of  the  scientific 
process  necessary  for  face-hardening  18-inch 
armor  plate  is  asserted  to  be  an  unavoidable 
cause  of  the  character  of  the  enumeration 
of  article  8  of  the  contract;  that  is,  such 
as  fires,  storms,  labor  strikes,  action  of  the 
United  States,  etc."  The  contention  is  that 
it  is  the  same  "genus  or  kind,"  because  (1) 
it  was  not  foreseeable  when  the  contract 
waa  made;  (2)  was  not  the  result  of  any 
act  or  neglect  on  the  part  of  claimant;  (3) 
was  not  a  cause  the  company  could  prevent. 
What  we  have  already  said  answers  these 
contentions.  Ability  to  perform  a  contract 
is  of  its  very  essence.  It  would  have  no 
sense  or  incentive,  no  assurance  of  fulfil- 
ment, otherwise;  and  a  delay  resulting  from 
the  absence  of  such  ability  is  not  of  the 
same  kind  enumerated  in  the  contract — is 
not  a  cause  extraneous  to  it  and  [166]  in- 
dependent of  the  engagements  and  exertions 
of  the  parties. 

Judgment  affirmed. 

Mr.  Justice  McReynolds  took  no  pars 
in  the  consideration  and  decision  of  thii 
case. 


KANSAS   CITY    SOUTHERN   RAILWAY 
COMPANY,  Appt., 

V. 

GUARDIAN  TRUST  COMPANY,  Central 
Improvement  Company,  Cambria  Steel 
Company,  and  Kansas  City  Suburbui 
Belt  Railroad  Company. 

(See  S.  0.  Reporter's  ed.  166-178.) 

Corporations  ^  reorganisation  ^  liabil- 
ity to  creditors. 

1.  Unsecured  creditors  of  a  corporation 
whose  property,  though  worth  enough  above 
the  mortgage  to  pay  their  claims,  was  sold 
on  foreclosure  for  the  amount  of  the  mort- 
gage to  a  new  corporation  formed  under  a 
reorganization  scheme  by  which  the  new 
company  was  to  issue  its  stocks  and  bonds 

Note. — On  the  effect  of  consolidation, 
merger,  or  absorption  of  corporation  on  its 
unsecured  liabilities  in  the  absence  of  statu- 
tory or  contract  provision — see  notes  to  At- 
lantic &  B.  R.  Co.  T.  Johnson,  11  L.RJL 
(N.S.)  1119;  Luedecke  v.  Des  Moines  Cabi- 
net Co.  32  L.RJL(N.S.)  616;  and  Jenninn, 
N.  &  Co.  V.  Crystal  Ice  Co.  47  L.RJL(NJL) 
1068. 

On  the  liability  of  a  consolidated  railroad 

579 


SUPREME  COURT  OF  THE  UNITED  STATEa 


Oct.  Twmu, 


in  exchange  for  stock  and  bonds  in  the  old 

company, — are  entitled  to  charge  the  new 

corporation  with  their  debts. 

(For  other  cases,  see  Corporations,  III.  b,  in 
Digest  Sup.  Ct.  1908.1 

Estoppel  —  by  accepting  benefits. 

2.  A  creditor  of,  and  stockholder  in,  a 
corporation,  by  assenting  to  a  reor^^iza* 
tion  plan  which  did  not  on  its  face  give  no- 
tice of  intent  to  prefer  the  company's  stock- 
holders to  its  creditors,  and  by  exchanging 
its  stock  under  such  plan  for  stock  in  the 
new  corporation,  did  not  lose  its  rights  to 
charge  the  new  corporation  with  its  debt, 
where  such  corporation  acquired  all  the 
property  of  the  old  corporation  under  a 
sale  on  foreclosure  for  the  amount  of  the 
mortgage,  though  such  property  was  worth 
enough  above  the  mortgage  to  pay  the  cred- 
itors. 

[For  other  cases,  see  Estoppel,  III.  b,  7,  in 
Digest  Sap.  Ct.  1908.] 

Corporations  —  reorganiiatlon  —  liabil- 
ity to  creditors. 

8.  The  right  of  an  unsecured  creditor 
of  a  corporation,  whose  property,  though 
worth  enough  above  the  mortgage  to  pay  the 
debt,  was  sold  on  foreclosure  for  the 
amount  of  the  mortgage  to  a  new  corpora- 
tion formed  under  a  reorganization  scheme, 
to  charge  the  new  corporation  with  its  debt, 
was  not  affected  by  a  provision  in  the  re- 
organization agreement  that  no  right  or 
obligation  is  created  thereby  or  assumed 
thereunder  by  or  for  any  new  company  in 
favor  of  any  bondholder  or  any  other  cred- 
itor or  holder  of  any  claim  with  respect  to 
any  property  acquired  by  purchase  at  any 
foreclosure  sale,  even  thoUgh  such  creditor 
became  a  party  to  the  reorganization  agree- 
ment because  of  its  other  interests  as  a 
stockholder  in  the  old  company. 
[For  other  cases,  see  Corporations,  III.  b,  in 
Digest  Sap.  Ct.   1908.] 

CoriH>rations  —  reorganization  —  liabil- 
ity to  creditors. 

4.  The  exchange  of  stock  in  an  old  cor- 
poration, having  a  substantial  value,  for 
stock  in  another  corporation  formed  pur- 
suant to  a  reorganization  scheme,  justifies 
the  conclusion  that  there  was  a  valuable 
equity  in  the  property  of  the  old  corpora- 
tion for  which  the  new  corporation  must 
account  to  unsecured  creditors  of  the  old 
corporation  where,  in  carrying  out  the  re- 
organization plan,  the  new  corporation  ac- 
quired all  the  properly  of  the  old  corpora- 
tion for  the  amount  of  the  mortgage. 

[For  other  cases,  see  Corporations,  III.  b.  in 

Digest  Sap.  Ct.   1908.] 
Corporations  —  reorganisation  —  rights 

of  creditors  —  laches. 

5.  A  creditor  is  not  barfed  by  laches 

company  for  the  debts  of  its  predecessor — 
see  note  to  Chicago  A  I.  Coal  R.  Co.  v.  Hall, 
2d  L.R.A.  231. 

On  the  right  of  a  corporation  which  has 
transferred  all  or  substantially  all  of  its 
assets  to  another  corporation  to  subject  as- 
sets so  transferred  to  an  equitable  lien  or 
5 reference — see  note  to  Ex  parte  Savings 
tank,  5  L.RJL.(NJ3.)  520. 
580 


from  asserting  its  right  to  charge  witlT  its 
debt  a  new  oorporat&n  whieh,  in  carrying 
out  a  reorganization  scheme,  acquired  aU 
the  proper^  of  the  old  corporation,  whidi 
was  worth  more  than  the  mortgaffe,  at  a 
sale  on  foreclosure  for  the  amount  of  the 
mortgage,  where  the  creditor  set  up  its 
claim  in  another  suit  prior  to  the  fore- 
closure sale  and  tried  to  become  a  party  to 
the  foreclosure  suit,  and  did  succeed  there- 
in in  saving  its  rights  from  prejudice,  and, 
when  the  corporations  came  into  the  suit  at 
bar,  set  up  its  claim  again. 

[For  other  caHes,  see  Limitation  of  Actions, 
I.  b,  2,  in  Digest  Sup.  Ct.  1908.] 

Appeal  —  In  equity  case  ^  review  of 
merits  —  estceptlon  on  other  grounds. 

6.  The  erroneous  conclusion  of  the  mas- 
ter in  an^  equity  suit  Uiat,  under  the  facts 
surrounding  a  corporate  reorganization,  the 
new  corporation  was  not  liable  for  the  un- 
secured debts  of  the  old  corporation,  could 
be  reversed  by  the  circuit  court  of  appeals 
on  appeal  upon  the  merits,  although  the 
exceptions  to  such  conclusion  were  put  upon 
other  grounds. 

[For  other  cases,  see  Appeal  and  Brror,  TI. 
a,  4,  in  Digest  Sap.  Ct.  1908.] 

Appeal  —  from  circuit  court  of  appeals 
—  Federal  question. 

7.  Allegations  in  the  bill  and  in  a  pe- 
tition in  intervention  which  assert  respec- 
tively a  lien  under  a  judsment  of  a  Federal 
court  and  title  under  a  decree  of  a  Feueral 
court  raised  Federal  questions  which  confer 
jurisdiction  on  the  Federal  Supreme  Court 
on  appeal  from  a  decree  of  a  circuit  court  of 
appeals  in  the  suit. 

[For  other  cases,  see  Appeal  and  Brror,  790- 
807.  in  Digest  Sup.  Ct.  1908.] 

[No.  85.] 

Argued  December  13,  14,  and  16,  1915     De- 
cided February  21,  1916. 

APPEAL  from  the  United  States  Circuit 
Court  of  Appeals  for  the  Eighth  Cir- 
cuit to  review  a  decree  which,  on  a  second 
appeal,  held,  reversing  a  decree  of  the  Cir- 
cuit Court  for  the  Western  District  of  Mis- 
souri, that  a  certain  unsecured  creditor  of 
a  corporation  could  charge  with  its  debt  a 
new  corporation  formed  under  a  reorganiza- 
tion scheme.    Affirmed. 

See  same  case  below,  first  appeal,  120  C. 
C.  A.  121,  201  Fed.  811;  second  appeal,  127 
C.  C.  A.  184,  210  Fed.  696. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Samuel  W.  Moore  and  Samuel 
Untermyer  argued  the  cause  and  filed  a 
brief  for  appellant: 

If  the  bill  of  the  Cambria  Company 
stated  facts  sufficient  to  present  a  distinct 
ground  of  Federal  jurisdiction  independent 
of  that  of  diversity  of  citizenship,  then  the 
decision  of  the  court  of  appeals  was  not 
final,  and  the  motion  to  dismiss  the  appeal 
must  be  overruled. 

S40  U.  8. 


1916. 


KANSAS  CITY  8.  R.  00.  ▼.  6UABDIAN  TRUST  00. 


Viokabiirg  t.  Henson,  231  U.  S.  259,  58 
L.  ed.  209,  84  Sup.  Ct.  Rep.  95;  Warner 
y.  Searlo  &  H.  Co.  191  U.  8.  105,  48  L.  ed. 
145,  24  Sup.  Ct  Rep.  79;  St.  Louis  K.  0. 
&  C.  R.  Co.  T.  WabMh  R.  Co.  217  U.  S. 
247,  54  L.  ed.  762,  80  Sup.  Ct  Rep.  510; 
Howard  t.  United  SUtes,  184  U.  S.  676,  46 
L.  ed.  754,  22  Sup.  Ct.  Rep.  543;  Union  P. 
R.  Co.  V.  Harris,  158  U.  S.  826,  39  L.  ed. 
1003,  15  Sup.  Ct.  Rep.  843,  10  Am.  Neg. 
Ou.  585;  Mississippi  R.  Commission  v. 
lUinois  0.  R.  Co.  203  U.  S.  335,  51  L.  ed. 
209,  27  Sup.  Ct  Rep.  90;  United  SUtes 
Fidelity  &  O.  Co.  v.  Bray,  225  U.  S.  205,  56 
L.  ed.  1055,  32  Sup.  Ct  Rep.  620. 

It  is  the  face  of  the  bill  of  the  Cambria 
Company  to  which  we  must  look  lor  the 
jurisdictional  averments.  It  is  not  ma- 
terial or  important  what  questions  arising 
upon  the  issues  made  by  this  Ull  were 
actually  decided. 

Florida,  0.  &  P.  R.  Co.  ▼.  Bell,  176  U.  S. 
321,  44  L.  ed.  486,  20  Sup.  Ct.  Rep.  399; 
Omaha  Electric  Light  &  P.  Co.  v.  Omaha, 
230  U.  S.  123,  57  L.  ed.  1419,  33  Sup.  Ot. 
Rep.  974;  Siler  v.  Louisville  &  N.  R.  Co. 
213  U.  a  175,  53  L.  ed.  753,  29  Sup.  Ct 
Rep.  451. 

Where  the  case  made  by  the  plaintiff  is 
one  which  depends  upon  the  proper  con- 
struction of  an  act  of  Congress,  with  the 
oontingency  of  being  sustained  by  one 
oonstruction  and  defeated  by  another,  it  is 
one  arising  under  the  laws  of  the  United 
States. 

Northern  P.  R.  Co.  r.  Soderberg,  188  U. 
S.  526,  47  L.  ed.  575,  23  Sup.  Ct  Rap.  365; 
Re  Lennon,  166  U.  S.  548,  41  L.  ed.  1110,  17 
Sup.  Ct  Rep.  658. 

The  right  of  the  Cambria  Company  to 
relief  turned  upon  the  existence  of  the  Judg- 
ment lien  created  by  act  of  Congress,  which 
the  Ctoibria  Company  asserted  and  the 
Trust  Company  denied.  Did  not  the  dis- 
position of  this  issue  depend  upon  the  laws 
of  the  United  States,  and  was  not  the  juris- 
diction of  the  lower  court,  as  depending 
upon  the  subject-matter,  properly  invoked? 

Cooke  y.  Avery,  147  U.  S.  375,  37  L.  ed. 
200,  13  Sup.  Ct.  Rep  340;  First  Nat  Bank 
V.  Society  for  Savings,  25  C.  C.  A.  466,  42 
U.  S.  App.  517,  80  Fed.  581;  Sowles  t. 
Witters,.46Fed.  497. 

The  reason  of. the  rule  finds  support  in 
many  adjudicated  cases.  An  action  on  the 
bond  of  a  marshal  of  the  United  States,  or 
on  the  bond  of  a  clerk,  or  on  the  official 
bond  of  a  cashier  of  a  national  bank,  or 
on  the  bond  of  a  Federal  contractor,  given 
for  the  protection  of  persons  furnishing 
materials  and  labor  for  the  construction  of 
public  works,  or  on  a  supersedeas  bond,  are 
hdd  to  arise  under  the  laws  of  the  United 
States  for  the  reascm  that  the  ease  depends 
•0  li.  ed. 


upon  the  scope  and  effect  of  the  bond,  and 
the  meaning  of  the  statute  under  which  it 
was  given. 

Bock  T.  Perkins,  139  U.  S.  628,  35  L.  ed. 
314,  11  Sup.  Ct.  Rep.  677;  Howard  v. 
United  SUtes,  184  U.  S.  676,  46  L.  ed.  754, 
22  Sup.  Ct  Rep.  543;  Walker  t.  Windsor 
Nat  Bank,  5  C.  C.  A.  421,  5  U.  S.  App. 
423,  56  Fed.  76;  United  States  use  of  HUl 
y.  American  Surety  Co.  200  U.  S.  197,  50 
L.  ed.  437,  26  Sup.  Ct  Rep.  168;  United 
States  V.  American  Bonding  &  T.  Co.  22 
C.  C.  A.  420,  61  U.  S.  App.  584,  89  Fed. 
925;  United  States  use  of  Anniston  Pipe  k 
Foundry  Co.  v.  National  Surety  Co.  34 
C.  C.  A.  526,  92  Fed.  549;  United  SUtes 
use  o<  Fidelity  Nat.  Bank  y.  Bundle,  40 
C.  C.  A.  450,  100  Fed.  400;  Hardaway  v. 
National  Surety  Co.  80  C.  C.  A.  283,  150 
Fed.  465;  Seymour  v.  Phillips  &  O.  Oonstr. 
Co.  7  Biss.  460,  Fed.  Cas.  No.  12,689. 

An  action  against  a  corporation  created 
by  Congress  is  one  arising  under  the  Uws 
of  the  United  SUtes,  for  the  reason  that 
the  oorporation  has  no  powers  and  can 
incur  no  obligations  except  as  authorized 
or  provided  by  iU  charter.  (Pacific  Rail- 
road Removal  Cases,  115  U.  S.  1,  29  L. 
ed.  319,  5  Sup.  Ct  Rep.  1113;  Texas  k  P. 
R.  Co.  V.  Cox,  145  U.  S.  593,  36  L.  ed.  829, 
12  Sup.  Ct  Rep.  905).  Likewise,  an  action 
on  an  injunction  bond  given  in  the  course 
of  proceedings  in  the  Federal  court  arises 
under  the  Uws  of  the  United  SUtes. 

TuUock  V.  Mulvane,  184  U.  S.  497,  46  L. 
ed.  657,  22  Sup.  Ct  Rep.  372;  Missouri,  K. 
&  T.  R.  Co.  V.  Elliott  184  U.  S.  530,  46  L. 
ed.  673,  22  Sup.  Ct.  Rep.  446. 

A  suit  on  a  supersedeas  bond,  given  in 
oonformity  to  the  Federal  sUtute,  to  super- 
sede a  judgment  in  an  action  for  a  breach 
of  contract,  during  the  pendency  of  a  writ 
of  error  from  a  Federal  circuit  court  of 
appeals,  is  one  which  arises  under  the  Con- 
stitution or  laws  of  the  United  SUtes. 

American  Surety  Co.  v.  ShulU,  237  U.  S. 
159,  59  L.  ed.  892,  35  Sup.  Ct  Rep.  625. 

The  intervening  petition  of  the  Southern 
Company  was  a  suit  arising  under  the  laws 
of  the  United  SUtes,- and  idt  that  reason 
alone  the  right  of  i^peal  to  this  court  ex- 
isU,  regardless  of  the  source  of  jurisdiction 
of  the  Cambria  bilL  The  decision  of  the 
court  of  appeals  in  this  case  was  not  final 
for  the  further  reason  that  the  intervening 
petition  of  the  Southern  Company  (which 
was  in  the  nature  of  an  original  bill 
asserted  the  equiUble  title  to  certain  real 
and  personal  pr9perties  held  or  claimed  by 
the  Trust  Company,  based  upon  foreclosure 
decrees  rendered  in  the  United  SUtes  cir- 
cuit court  for  the  western  district  of 
Missouri,    and   sales    had    thereunder,    at 

581 


SUPREME  COURT  OF  THE  UNITED  STATE& 


Oct.  TkBM, 


which  the  Southern  Company  became  the 
purchaser. 

Dupasseur  v.  Rochereau,  21  Wall.  180, 
22  L.  ed.  588;  PitUburj^  C.  C.  &  St.  L. 
R.  Co.  V.  Long  Island  Loan  &  T.  Co.  173 
U.  S.  493,  508,  43  L.  ed.  528,  533,  19  Snp. 
Ot.  Rep.  238;  Tullock  v.  Mulvane,  184  U. 
S.  497,  46  L.  ed.  657,  22  Sup.  Ct.  Rep. 
372. 

The  Southern  Company  set  up  a  right  to 
recover  as  the  result  of  a  judicial  sale 
made  under  a  decree  of  the  United  States 
circuit  court,  and  therefore  a  Federal  ques- 
tion was  presented. 

C<Hnmercial  Puh.  Co.  t.  Beckwith,  188 
U.  S.  567,  47  L.  ed.  598,  23  Sup.  Ct.  Rep. 
382;  State  ez  reL  Atty.  Gen.  v.  Frost,  113 
Wis.  623,  89  N.  W.  915;  Cooke  v.  Ayery, 
147  U.  S.  375,  37  L.  ed.  209,  13  Sup.  Ct. 
Rep.  340. 

Where  an  ancillary  bill  upon  its  face 
presents  Federal  questions,  the  right  of 
appeal  to  this  court  from  the  circuit  court 
of  appeals  exists,  regardless  of  the  source 
of  Jurisdiction  of  the  main  action. 

Railroad  Commission  v.  Worthington, 
225  U.  S.  101,  56  L.  ed.  1004,  32  Sup.  U. 
Rep.  653. 

The  plan  of  reorganization  is  binding 
upon  the  Trust  Company  because  it  actiyely 
participated  in  the  plan,  and  greatly  bene- 
fited by  it  in  the  exdiange  of  its  own 
securities  in  the  old  companies  for  those 
of  the  Southern  Company.  Equity  will  not 
permit  the  Trust  Company  to  retain  the 
benefits  of  the  plan  and  at  the  same  time 
attack  it  as  fraudulent.  It  cannot  claim 
both  under  and  against  the  plan. 

14  Am.  &  Eng.  Enc.  Law,  273,  281 ;  Whit- 
aker  y.  Whitaker,  157  Mo.  353,  58  S.  W.  5 ; 
20  Cyc.  434,  435,  608. 

The  application  of  the  doctrine  of  "quasi 
estoppel,"  or  of  estoppel  by  the  acceptance 
of  benefits,  is  fatal  to  any  right  of  recovery 
on  the  part  of  the  Trust  Company. 

16  Cyc.  784;  Wormser  v.  Metropolitan 
Street  R.  Co.  184  N.  Y.  83,  112  Am.  St. 
Rep.  596,  76  N.  E.  1036,  6  Ann.  Cas.  123; 
Pott  v.  Beacon  Vacuum  Pump  k  Electrical 
Co.  28  0.  C.  %.  431,  50  U.  S.  App.  271,  84 
Fed.  371;  Towers  v.  African  Tug  Co.  [1904] 
1  Ch.  558,  73  L.  J.  Ch.  N.  S.  395,  62  Week. 
Rep.  530,  90  L.  T.  N.  S.  298,  20  Times  L. 
R.  292,  11  Manson,  198;  United  States  ex 
rel.  International  Contracting  Co.  v.  La- 
mont,  155  U.  S.  303,  39  L.  ed.  160,  15  Sup. 
Ct.  Rep.  97;  North  Chicago  Street  R.  Co. 
V.  Chicago  Union  Traction  Co.  150  Fed. 
626;  Farmers'  Bank  v.  Groves,  12  How.  51, 
13  L.  ed.  889;  Compton  v#  Jesup,  167  U. 
8.  1,  42  L.  ed.  55,  17  Sup.  Ct.  Rep.  795; 
United  States  v.  Hodson,  10  Wall.  395,  19 
L.  ed.  937;  Daniels  v.  Teamey,  102  U.  S. 
415,  26  L.  td.  187;  Winslow  t.  Baltimore 
68S 


A  0.  R.  Co.  208  U.  8.  59,  52  L.  ed.  388,  28 
Sup.  Ct.  Rep.  190;  Loy  v.  Alston,  96  C.  C. 
A.  578,  172  Fed.  90;  Shackleton  v.  Bagga- 
ley,  95  C.  C.  A.  505,  170  Fed.  57;  United 
States  use  of  Hine  v.  Morse,  218  U.  S.  493, 
54  L.  ed.  1123,  31  Sup.  Ct.  Rep.  37,  21  Ann. 
Cas.  782;  State  ex  reL  Pope  v.  Germania 
Bank,  90  Minn.  150,  95  N.  W.  1116;  Sem- 
inole Securities  Co.  v.  Southern  L.  Ins.  Co. 
182  Fed.  85;  Gaddes  v.  Pawtucket  Inst,  for 
Savings,  33  R.  I.  177,  80  Atl.  415,  Ann. 
Cas.  1913B,  407;  Sage  v.  Finney,  156  Mo. 
App.  30,  135  S.  W.  996. 

The  doctrine  of  equitable  election  is  a 
complete  bar  to  a  recovery  by  the  Trust 
Company. 

Peters  v.  Bain,  133  U.  S.  670,  33  L.  ed. 
696,  10  Sup.  Ct.  Rep.  354;  Merchants'  Nat. 
Bank  v.  Sexton,  228  U.  S.  634,  57  L.  ed. 
998,  33  Sup.  Ct.  Rep.  725;  11  Am.  k  Eng. 
Enc.  Law,  2d  ed.  p.  59;  Codrington  v. 
Lindsay,  L.  R.  8  Ch.  678,  42  L.  J.  Ch.  N.  S. 
626,  28  L.  T.  N.  S.  177,  21  Wedc.  Rep.  182; 
Pitman  v.  Ewing  [1911]  A.  O.  217,  80  L.  J. 
P.  C.  N.  S.  178,  104  L.  T.  N.  S.  611,  48 
Scot.  L.  R.  401,  21  Ann.  Cas.  547;  Fox  v. 
Windes,  127  Mo.  512,  48  Am.  St.  Rep.  648, 
30  S.  W.  325;  1  Herman,  Estoppel  &  Res 
Judicata,  p.  11;  2  Herman,  Estoppel  &  Res 
Judicata,' §  1028,  p.  1156;  Stone  v.  Cook, 
179  Mo.  545,  78  S.  W.  801;  Kavanaugh  v. 
Shacklett,  111  Va.  423,  69  S.  E.  335;  Sav- 
ings Bank  v.  Todd,  114  Va.  708,  77  S.  £. 
446. 

The  doctrine  of  equitable  estoppel  is  also 
a  complete  bar  to  a  recovery  by  the  trust 
company. 

Farmers'  Loan  &  T.  Co.  v.  Central  R.  & 
Bkg.  Co.  120  Fed.  1006;  Matthews  v 
Murchison,  15  Fed.  691;  Symmes  v.  Union 
Trust  Co.  60  Fed.  830;  Vose  v.  Cowdrey, 
49  N.  Y.  343;  Reagan  v.  First  Nat.  Bank, 
157  Ind.  623,  61  N.  E.  575,  62  N.  E.  701 ; 
Jessup  V.  Hulse,  21  N.  Y.  168;  Old  Nat. 
Bank  y.  Heckman,  148  Ind.  490,  47  N.  E. 
953;  Jacobs  v.  Jefferson  Lumber  Co.  — 
Tex.  — ,  15  S.  W.  236 ;  Mitchell  v.  Mitchell, 
212  Pa.  62,  61  Atl.  670;  Olliver  v.  King. 
8  De  G.  M.  k  G.  110,  25  L.  J.  Ch.  N.  S.  427, 
2  Jur.  N.  S.  312,  4  Week.  Rep.  382;  Perisho 
v.  Perisho,  71  111.  App.  222;  Rapalee  v. 
Stewart,  27  N.  Y.  310;  Canton  Roll  ft 
Mach.  Co.  y.  Rolling  MiU  Co.  155  Fed.  321 ; 
Thompson  v.  Cohen,  127  Mo.  215,  28  S.  W. 
984,  29  S.  W.  885;  Gutzweiller  v.  T^kman, 
23  Mo.  168;  Smith  v.  Espy,  9  N.  J.  Eq. 
160;  Richards  v.  White,  7  Minn.  345,  Gil. 
271 ;  Fiske  v.  Carr,  20  Me.  301. 

Where  a  person's  conduct  is  such  as  to 
operate  as  an  estoppel,  the  estoppel  will 
be  implied  regardless  of  the  fact  that  he 
may  protest  and  insist  that  it  shall  noi 
have  that  effect. 
United  States  ex  rel.  International  Con« 

840  v:  8. 


1915. 


KANSAS  CITY  6.  R.  00.  t.  OUABDIAN  TRUST  00. 


trmctiiig  Oo.  t.  Lamont,  155  U.  8.  808, 
li.  ed.  160,  15  Sup.  Ct.  Rep.  07;  Wonnser 
^.  Metrf^Iitan  Street  R.  Co.  184  N.  Y.  83, 
112  Am.  St.  R^.  696,  76  N.  £.  1036,  6 
Ann.  Cu.  123;  Post  T.  Beacon  Vacuum 
Pump  &  Electrical  Co.  28  C.  C.  A.  431,  50 
U.  S.  App.  271,  84  Fed.  371. 

The  prorision  of  the  plan  which  made  a 
tentative  appropriation  of  $475,000  for  the 
payment  of  floating  debts  of  all  the  com- 
panies was  not  a  contract  for  the  benefit 
of  the  Trust  Company  as  a  creditor,  upon 
which  it  was  entitled  to  maintain  an  action. 
The  purpose  and  intention  of  this  provision 
was  to  benefit  the  security  holders,  and  not 
^  benefit  the  unsecured  creditors  of  the 
•constituent  companies.  That  unsecured 
•ereditors  may  have  been  incidentally  bene- 
fited does  not  change  the  rule  or  extend 
^he  contract  to  strangers  not  in  priiity 
with  it 

German  Alliance  Ins.  Oo.  ▼.  Home  Water 
ISupply  Co.  226  U.  S.  220,  57  L.  ed.  195, 
42  L.R.A.(N.S.)  1000,  33  Sup.  Ct.  Rep.  32; 
ISt.  Louis  Y.  6.  H.  Wright  Contracting  Co. 
-202  Mo.  451,  119  Am.  St.  Rep.  810,  101  S. 
W.  6;  Beattie  Mfg.  Co.  v.  Qark,  208  Mo. 
89,  106  S.  W.  20;  Howsmon  v.  Trenton 
Wat^  Co.  119  Mo.  304,  23  L.RJi.  146,  41 
Am.  St.  Rep.  654,  24  S.  W.  784;  Metropoli- 
tan Trust  Co.  V.  Topeka  Water  Co.  132 
Fed.  702;  Allen  k  0.  Mfg.  Co.  v.  Shreve- 
•port  Waterworks  Co.  113  La.  1091,  68 
L.RJL  650,  104  Am.  St.  Rep.  525,  37 
So.  980,  2  Ann.  Cas.  471;  Second  Nat. 
Bank  v.  Grand  Lodge  F.  &  A.  M.  98  U. 
8.  123,  25  L.  ed.  75;  Keller  y.  Ashford, 
133  U.  S.  610,  33  L.  ed.  667,  10  Sup.  Ct. 
Rep.  494;  Say  ward  v.  Dexter,  H.  k  Co.  19 
<!.  0.  A.  176,  44  U.  S.  App.  376,  72  Fed. 
758;  American  Exch.  Nat.  Bank  y.  North- 
•em  P.  R.  Co.  76  Fed.  130;  Moyer  ▼.  Ft. 
Wayne,  C.  &  L.  R.  Oo.  132  Ind.  88,  31  N.  E. 
567;  Freeman  y.  Pennsylvania  Co.  173  Pa. 
^4,  33  Atl.  1034;  Mcllvane  v.  Big  Stony 
Lumber  Co.  105  Va.  613,  54  S.  E.  473; 
Armour  k  Co.  v.  Western  Constr.  Co.  36 
Wash.  529,  78  Pac.  1106. 

The  acceptance  and  retention  of  benefits 
under  a  will,  contract,  plan  of  reorganiza- 
tion, or  what  not,  operates  as  a  complete 
•estoppel  or  bar  against  any  action  or  pro- 
ceeding which  does  not  recognize  and  give 
effect  in  its  entirety  to  the  transaction  from 
which  the  benefits  have  been  derived.  What- 
•ever  name  may  be  given  to  this  rule,  it  is 
one  firmly  established  in  our  jurisprudence. 
It  is  not  dependent  upon  (a)  the  existence 
•ol  a  misrepresentation,  (b)  ignorance  of 
the  truth,  or  (e)  action  induced  by  the  mis- 
representation, or  (d)  injury  if  the  truth  is 
permitted  to  be  proved. 

Bigelow,  Estoppel,  6th  ed.  p.  732;  16  Oye. 
784;  Hector  y.  Mann,  225  Mo.  228,  124  B. 
4«  Ii.  ed. 


W.  1109;  Utermehle  y.  Norment,  197  U.  S. 
40,  49  L.  ed.  655,  25  Sup.  Ct.  Rep.  291,  3 
Ann.  Cas.  520;  Humes  Constr.  Co.  v.  Phila- 
delphia Oasualty  Co.  32  R.  I.  246,  79  Atl.  1, 
Ann.  Cas.  1912D,  906;  Tozer  v.  Ocean  Acci. 
k  Guarantee  Corp.  94  Minn.  478,  103  N.  W. 
509 ;  Gaddes  v.  Pawtucket  Inst,  for  Savings, 
33  R.  I.  177,  80  AU.  415,  Ann.  Cas.  1013B, 
407 ;  Field  v.  Doyon,  64  Wis.  560,  25  N.  W. 
653;  Chard  v.  Warren,  122  N.  C.  75,  29  S. 
E.  373;  Greeley  v.  Provident  Sav.  Bank, 
103  Mo.  212,  15  S.  W.  429;  St.  Lotiis  v. 
Davidson,  102  Mo.  149,  22  Am.  St.  Rep. 
764,  14  S.  W.  825;  Bigelow,  Estoppel,  5th 
ed.  685;  Robinscm  y.  Pebworth,  71  Ala. 
240. 

The  application  to  the  facts  in  this  case 
of  the  familiar  rules  that  he  who  seeks 
equity  must  do  equity,  and  must  come  into 
court  with  clean  hands,  is  fatal  to  the  con- 
tention of  the  Trust  Company,  even  if  it 
be  assumed  (as  it  is  not)  that  the  reor- 
ganization plan  amounted  to  a  fraudulent 
conveyance  to  stockholders  of  assets  to 
which  general  creditors  had  a  right  to 
resort  for  the  satisfaction  of  their  claims. 

Harriman  v.  Northern  Securities  Co.  197 
U.  S.  244,  295,  49  L.  ed.  739,  763,  25  Sup. 
Ct.  Rep.  493;  Randall  v.  Howard,  2  Black, 
585,  17  L.  ed.  269;  Wheeler  v.  Sage,  1  Wall. 
518,  17  L.  ed.  646;  Dent  v.  Ferguson,  132 
U.  S.  50,  33  L.  ed.  242,  10  Sup.  Ct.  Rep.  13; 
Bartle  v.  Nutt,  4  Pet.  184,  7  L.  ed.  825; 
Schermerhom  v.  De  Chambrun,  12  C.  O.  A. 
81,  26  U.  S.  App.  212,  64  Fed.  195;  Law- 
ton  V.  Estes,  167  Mass.  181,  57  Am.  St. 
Rep.  450,  45  N.  E.  90;  Deppen  y.  German- 
American  Title  Co.  24  Ky.  L.  Rep.  110,  70 
S.  W.  868;  Lemay  v.  Bibeau,  2  Minn.  291, 
Gil.  251;  Scott  v.  Edes,  3  Minn.  388,  Gil. 
271. 

If  the  plan  became  fraudulent  only  after 
the  Trust  Company's  debt  was  not  paid,  as 
the  court  of  appeals  decided,  nevertheless 
the  Trust  Company's  retention  of  the  fruits 
of  the  scheme  is  a  conclusive  bar  to  a 
recovery. 

Kahn  v.  Peter,  104  Ala.  523,  16  So.  524 ; 
Brewer  v.  Nash,  16  R.  I.  458,  27  Am.  St. 
Rep.  749,  17  Atl.  857. 

The  plan  could  not  become  fraudulent  by 
events  subsequently  transpiring. 

20  Cyc.  413;  Krueger  y.  Vorhauer,  164 
Mo.  156,  63  S.  W.  1098. 

If  the  reorganization  plan  was  ever 
fraudulent  and  voidable  as  to  creditors,  it 
was  so  at  the  time  of  its  execution  by  the 
Trust  Company,  and  the  eovenant  is  a  com- 
plete bar. 

Louisville  Trust  Co.  y.  Louisville,  N.  A. 
&  C.  R.  Co.  174  U.  S.  674,  43  L.  ed.  1180, 
19  Sup.  Ct.  Rep.  827;  Chicago,  R.  I.  &  P. 
R.  Co.  y.  Howard,  7  Wall.  892,  19  L.  ed. 

U7. 

68S 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TwMMp 


A  retention  of  the  fruits  of  the  fraud  is 
a  conclusive  election  to  hold  under  the  plan, 
and  is  an  insurmountable  barrier  to  any 
attack  upon  the  plan. 

Stone  V.  Cook,  179  Mo.  534,  64  L.RJL. 
287,  78  S.  W.  801;  11  Am.  k  Eng.  Eno.  Law, 
2d  ed.  p.  98;  Young  v.  Young,  61  N.  J. 
£q.  491,  27  AU.  627;  Medill  v.  Snyder, 
61  Kan.  15,  78  Am.  St.  Rep.  306,  58  Pac. 
962. 

If  the  Southern  Company,  after  becoming 
the  owner  of  the  property  of  the  Gulf  Com- 
pany and  of  the  stocks  and  bonds  of  the 
Belt  Company  on  April  1,  1900,  had  con- 
tinued in  the  operation  and  management  of 
the  Gulf  property  acquired  at  foreclosure 
sale,  and  had  continued  to  own  the  stocks 
and  bonds  of  the  Belt  Company,  without 
causing  any  action  to  be  instituted  for  the 
foreclosure  of  the  mortgage  securing  the 
bonds,  for  a  period  of,  say,  five,  ten,  or 
twenty  years,  no  one  would  contend  that 
such  a  transaction  was  unlawful,  irregular, 
or  even  unusual. 

Pullman's  Palace  Car  Co.  v.  Missouri  P. 
R.  Co.  115  U.  S.  587,  29  L.  ed.  499,  6  Sup. 
Ct.  Rep.  194;  Peterson  v.  Chicago,  R.  I.  k 
P.  R.  Co.  206  U.  S.  384,  51  L.  ed.  841,  27 
bup.  Ct.  Rep.  513;  Atchison  T.  k  S.  F.  R. 
Co.  V.  Cochran,  43  Kan.  225,  7  L.R.A.  414, 
19  Am.  St.  Rep.  129,  23  Pac.  151;  Stone 
v.  Cleveland,  C.  C.  k  St.  L.  R.  Co.  202  N. 
Y.  352,  35  L.R.A.(N.S.)  770,  96  N.  E.  816. 

If,  upon  the  expiration  of  any  one  of  the 
periods  supposed,  the  Belt  Company  had 
made  default  in  the  payment  of  interest 
upon  the  bonds  held  by  the  Southern  Com- 
pany, and  the  trustee  in  the  mortgage  of 
the  Belt  Company,  as  required  by  the  terms 
of  the  mortgage  in  such  contingency,  had 
caused  the  property  to  be  foreclosed  and 
sold,  no  stockholders'  interest  being  pre- 
served to  the  Southern  Company,  no  credi- 
tor of  the  Belt  Company  could  have  com- 
plained, and  no  one  would  have  imagined 
that  there  was  any  fraudulent  conveyance 
to  defeat  the  claims  of  creditors. 

Pullman's  Palace  Car  Co.  v.  Missouri  P. 
R.  Co.  115  U.  S.  587,  29  L.  ed.  499,  6  Sup. 
Ct.  Rep.  194. 

The  mortgage  indebtedness  of  the  Belt 
Company  was  $1,000,000.  It  was  sold  at 
foreclosure  sale  for  $1,000,000,  which  the 
master  found  was  the  fair  market  value 
at  that  time.  Under  these  circumstances, 
the  Trust  Company,  as  a  creditor  of  the 
Bjelt  Company,  has  not  been  injured  and 
has  no  right  to  complain. 

Wenger  t.  Chicago  k  E.  R.  Co.  61  0.  C. 
A.  660,  114  Fed.  84;  Farmers'  Loan  k  T. 
Ca  T.  Louisville,  N.  A.  &  0.  R.  Co.  108 
Fed.  180. 

A  remhing  truft  was  created  in  faror  of 
the  railway  companies  paying  for  the  prop- 
SS4 


erties  deeded  to  the  Central  Company,  and 
this  equitable  interest  passed  under  the 
after-acquired  property  clauses  of  their 
mortgages.  The  Central  Company  acquired 
the  properties  subject  to  this  trust,  and 
the  interest  of  its  stockholders  was  likewise 
subject  thereto.  The  Trust  Company  ac- 
quired the  stock  of  the  Central  Company 
with  a  knowledge  of  these  facts,  and  ita 
equities,  therefore,  are  subordinate  to  those 
of  the  Southern  Company. 

Osborne  v.  Perkins,  60  C.  C.  A.  168,  112 
Fed.  127;  Lauter  v.  Jarvis-Conklin  Mortg. 
Trust  Co.  29  C.  C.  A.  473,  54  U.  S.  App.  49, 
85  Fed.  894;  Condit  v.  Maxwell,  142  Mo. 
266,  44  S.  W.  467 ;  Sanf ord  v.  Savings  k  L. 
Soc  80  Fed.  54;  Wade  v.  Sewell,  56  Fed. 
129;  Ducie  v.  Ford,  138  U.  S.  687,  34  L. 
ed.  1091,  11  Sup.  Ct.  Rep.  417;  Albright  v. 
Oyster,  140  U.  S.  493,  35  L.  ed.  534,  11  Sup. 
Ot.  Rep.  916;  Toledo,  D.  &  B.  R.  Co.  v. 
Hamilton,  134  U.  S.  296,  33  L.  ed.  905,  10 
Sup.  Ct.  Rep.  546;  Augusta  T.  &  O.  R.  Co. 
V.  Kittel,  2  C.  C.  A.  615,  2  U.  S.  App.  409, 
52  Fed.  63;  Brady  v.  Johnson,  75  Md.  445, 
20  L.R.A.  737,  26  Atl.  49;  McGourkey  ▼. 
Toledo  &  0.  C  R.  Co.  146  U.  S.  536,  31^ 
L.  ed.  1079,  13  Sup.  Ct.  Rep.  170;  Con- 
tracting k  Bldg.  Co.  V.  Continental  Trust 
Co.  47  O.  C.  A.  143,  108  Fed.  1 ;  New  Eng- 
land Waterworks  Co.  v.  Farmers'  Loan  k- 
T.  Co.  69  C.  C.  A.  297,  136  Fed.  521 ;  Cen- 
tral Trust  Co.  V.  Kneeland,  138  U.  S.  414, 
34  L.  ed.  1014,  11  Sup.  Ct.  Rep.  357. 

Where  the  proi>erties  are  bought  with  the 
funds  of  the  mortgagor  for  its  purposes,  it 
is  universally  held  that  the  after-acquired 
property  clauses  attach  immediately,  re- 
gardless of  the  circumstances  that  the  legal 
title  may  be  vested  in  an  individual  or  in 
a  corporation. 

Guaranty  Trust  Co.  v.  Atlantic  Coast 
Electric  R.  Co.  71  O.  C.  A.  41,  138  Fed.  617 ; 
^ew  England  Waterworks  Co.  v.  Farmeri^ 
Loan  k  T.  Co.  69  C.  C.  A.  297,  136  Fed. 
621;  Farmers'  Loan  k  T.  C6.  v.  Denver  L. 
k  G.  R.  Co.  60  C.  C.  i.  588,  126  Fed.  46, 
Wade  V.  Chicago,  S.  k  St.  L.  R.  Co.  14i^ 
U.  S.  327,  341,  37  L.  ed.  755,  761,  13  Sup. 
Ot.  Rep.  842;  Central  Trust  Co.  v.  Kned- 
and,  138  U.  S.  414,  424,  34  L.  ed.  1014, 
1017,  11  Sup.  Ct.  Rep.  357;  Augusta  T.  tL 
G.  R.  Co.  V.  Kittel,  2  C.  C.  A.  615,  2  U.  8, 
App.  409,  62  Fed.  63. 

It  is  the  particular  province  of  a  court 
of  equity  to  look  through  a  transaction  to 
the  substance  of  it,  and  to  disregard  the 
form  or  appearance  it  may  take. 

McGourkey  v.  Toledo  &  0.  R.  Co.  146  U 
S.  686,  666,  86  L.  ed.  1079,  1090, 18  Sup.  Ct. 
Rep.  170;  Smith  v.  Moore,  118  C.  C.  A. 
127, 199  Fed.  690;  Linn  k  L.  Timber  Oo.  T. 
United  Statea,  116  0.  0.  A.  267,  196  Fed. 
608. 

S40  V.  B. 


1913. 


KANSAS  CITY  S.  R,  CX).  ▼.  GUARDIAN  TRUST  CO. 


If  the  possession  of  the  Trust  Company  1 
of  this  stock  as  pledgee  gave  to  it  an  equit- 1 
able  interest  in  the  property  itself,  why 
did  not  the  ownership  of  the  stock  by  the 
Belt  Company  give  to  it  an  equitable  inter- 
est in  the  property  itself,  which  passed 
under  the  after-acquired  property  clause  of 
its  mortgage?  And  if  this  equitable  inter- 
est did  pass  to  the  trustee,  how  could  it 
ever  have  been  afterwards  devested  from 
the  trustee  and  reinvested  in  the  Trust 
Company? 

Pcre  Marquette  R.  Co.  r.  Graham,  136 
Mich.  444,  09  N.  W.  408;  Columbia  Finance 
k  T.  Co.  V.  Kentucky  Union  R.  Co.  9  C.  C. 
A.  264,  22  U.  S.  App.  64,  60  Fed.  794; 
Knevals  v.  Florida,  C.  k  P.  R.  Co.  18  C.  O. 
A.  410,  23  U.  S.  App.  649,  66  Fed.  224; 
Omaha  &  St.  L.  R.  Co.  v.  Wabash,  St.  L. 
A  P.  R.  Co.  108  Mo.  298,  18  S.  W.  1101; 
United  States  Trust  Co.  v.  Wabash,  St  L. 
&  P.  R.  Co.  32  Fed.  480;  Brady  T.  John- 
eon,  76  Md.  446,  20  L.R.A.  737,  26  Atl. 
49;  Monmouth  County  Electrie  Co.  t.  Mc- 
Kenna,  68  N.  J.  £q.  160,  60  Atl.  32 ;  Harris 
v.  Youngstown  Bridge  Co.  33  C.  O.  A.  69, 
62  U.  S.  App.  112,  90  Fed.  322;  Contracting 
&  Build.  Co.  V.  Continental  Trust  Go.  47  C. 
C.  A.  143,  108  Fed.  1;  Toledo,  D.  A  B,  R. 
Co.  ▼.  Hamilton,  134  U.  S.  296,  33  L.  ed. 
906,  10  Sup.  Ct.  Rep.  646. 

The  Trust  Company  was  acting  in  a  dual 
capacity.  It  was  trustee  for  the  bondhold- 
ers under  tlie  mortgages  with  after-acquired 
property  clauses  which,  as  the  master 
found,  attached  to  the  properties  of  the 
Central  Company.  It  also,  in  its  individual 
capacity,  took,  or  attempted  to  take,  the 
same  properties  to  secure  an  indebtedness 
to  it  from  the  Belt  Company.  A  trustee, 
under  such  circumstances,  will  not  be  per- 
mitted to  take  or  receive  any  of  the  Belt 
Company's  assets  or  properties  and  appro- 
priate them  as  security  for  its  own  indebt- 
edness. 

Guaranty  Trust  Co.  t.  Atlantic  Coast 
Electric  Co.  71  C.  C.  A.  41,  138  Fed.  617; 
King  V.  Remington,  36  Minn.  16,  29  N.  W. 
362;  Ex  parte  James,  8  Ves.  Jr.  337,  7  Re- 
vised Rep.  76;  Ex  parte  Bennett,  10  Ves. 
Jr.  381,  8  Revised  Rep.  1;  Poillon  y.  Mar- 
tin, 1  Sandf.  Ch.  669;  Duncomb  t.  New 
York,  H.  &  N.  R.  Co.  84  N.  Y.  190;  Citse 
T.  Carroll,  35  N.  Y.  386;  Gardner  v.  Ogden, 
22  N.  Y.  327,  78  Am.  Dec  192;  Ex  parte 
flughea,  6  Yes.  Jr.  617;  Fulton  t.  Whitney, 
66  N,  Y.  648;  OUver  t.  Court,  8  Price,  127, 
Dmniell,  801,  22  Revised  Rep.  720. 

There  is  no  basis  whatever  for  the  oon- 
tention  that  the  entire  floating  debt  of  the 
eonstituent  companies  has  been  paid  ex- 
eept  only  the  debt  of  the  Trust  Company. 

Hoard  v.  Chesapeake  &  O.  R.  Co.  123 
TJ.  S.  222,  31  L.  ed.  130,  8  Sup.  Ct  Rep.  74; 
40  L.  ed. 


State  Trust  Co.  v.  Kansaa  City,  P.  &  G.  R. 
Co.  110  Fed.  10;  State  Trust  Co.  v.  Kansas 
City,  P.  &  G.  R.  Co.  120  Fed.  398,  128  Fed. 
129,  129  Fed.  466;  Westinghouse  Air  Brake 
Co.  y.  Kansas  City  Southern  R.  Co.  71  C. 
C.  A.  1,  137  Fed.  26;  Fordyce  v.  Bradley, 
49  C.  0.  A.  698,  111  Fed.  769;  State  Trust 
Co.  T.  Kansas  City,  P.  4  G.  R.  Co.  116  Fed. 
367,  116  Fed.  1023. 

A  different  rule  applies  to  one  who  is 
both  creditor  and  security  holder. 

Bank  of  Ft.  Madison  v.  Alden,  129  U.  S. 
372,  32  L.  ed.  726,  9  Sup.  Ct.  Rep.  332; 
Thompson  v.  Bemis  Paper  Co.  127  Mass. 
696:  Cunningham  v.  Holley,  M.  M.  &,  Co. 
68  C.  C.  A.  140,  121  Fed.  720;  WhitehUl  v. 
Jacobs,  76  Wis.  474,  44  N.  W.  630. 

The  reorganization  plan  and  agreement 
do  not  constitute  a  contract  for  the  pay- 
ment of  the  floating  debt  of  the  constituent 
companies. 

Robinson  t.  Iron  R.  Co.  136  U.  S.  622, 
34  L.  ed.  276,  10  Sup.  Ct  Rep.  907. 

Even  if  the  reorganization  plan  and 
agreement  amounted  to  an  express  contract 
to  pay  the  floating  debt  (which  is  strenu- 
ously denied),  yet  it  was  not  a  contract 
made  for  the  benefit  of  unsecured  creditors, 
as  its  object,  and  hence  the  Trust  Company 
cannot  maintain  an  action  upon  it. 

German  Alliance  Ins.  Co.  v.  Home  Water 
Supply  Co.  226  U.  S.  220,  67  L.  ed.  196,  42 
LJLA.(N^.)  1000,  83  Sup.  Ot.  Rep.  32; 
Second  Nat.  Bank  v.  Grand  Lodge,  F.  k  A. 
M.  98  U.  S.  123,  124,  26  L.  ed.  76,  76;  St. 
Louis  T.  G.  H.  Wright  Contracting  Co. 
202  Mo.  461,  119  Am.  St  Rep.  810,  101  S. 
W.  6;  Beattie  Mfg.  Co.  v.  Clark,  208  Mo. 
89,  106  S.  W.  29;  Howsmon  v.  Trenton 
Water  Co.  119  Mo.  304,  23  L.R.A.  146,  41 
Am.  St  Rep.  664,  24  S.  W.  784 ;  Metropoli- 
tan Trust  Co.  y.  Topeka  Water  Co.  132  Fed. 
702;  Allen  &  0.  Mfg.  Co.  v.  Shreveport 
Waterworks  Co.  113  La.  1091,  68  L.R.A. 
660,  104  Am.  St.  Rep.  626,  37  So.  980,  2 
Ann.  Gas.  471;  Keller  v.  Ashford,  133  U. 
S.  610,  33  L.  ed.  667,  10  Sup.  Ct.  Rep.  494 ; 
Sayward  t.  Dexter,  H.  k  Co.  19  C.  C.  A. 
176,  44  U.  S.  App.  376,  72  Fed.  768 ;  Moyer 
V.  Ft  Wayne,  C.  &  L.  R.  Co.  132  Ind.  88, 
81  N.  B.  667;  Freeman  v.  Pennsylvania  R. 
Go.  178  Pa.  274,  83  Atl.  1034;  Mcllvane  ▼. 
Big  Stony  Lumber  Co.  106  Va.  613,  64  S.  £. 
478;  Armour  &  Co.  t.  Western  Constr.  Co. 
88  Wash.  629,  78  Pae.  1106;  Rochester  Dry 
Goods  Co.  T.  Fahy,  111  App.  Dlv.  748,  97 
N.  Y.  Supp.  1013 ;  Nalle  v.  Costley,  —  Tex. 
Civ.  App.  — ,  174  S.  W.  626;  Chung  Kee  v. 
Davidson,  78  Cal.  622,  16  Pac.  100;  Clark 
y.  P.  M.  Hennessey  Constr.  Co.  122  Minn. 
476,  142  N.  W.  873;  COonnell  v.  Mercan- 
tile Trust  Co.  166  Mo.  App.  398,  147  S.  W. 
841;  Gulf  Gompress  Co.  v.  Harris,  C.  k  Co. 

685 


SUPREME  COURT  OF  THE  UNITED  STATES.  Oct.  Term. 

158  Ala.  343,  24  L.R.A.(N.S.)   399,  48  So.  property   of   the   Belt   Companj,   the   sale 

477.  thereunder,  and  the  purchase  by  the  South- 

The  Southern  Company  is  not  liable  for  em  Company,  did  not  operate  .to  establish 

the  debts  of  the  Belt  Company   upon  the  a  consolidation. 

theory  of  a  statutory  consolidation  of  the  National  Foundry  &.  Pipe  Works  ▼.  Ocon- 

two  companies.  to  City  Water  Supply  Co.  105  Wis.  48,  81 

Harriman  v.  Northern  Securities  Co.  197  N.  W.  125;  Hoard  v.  Chesapeake  &  O.  R. 

U.  S.  244,  49  L.  ed.  739,  25  Sup.  Ct.  Rep.  Co.  123  U.  S.  222,  31  L.  ed.  130,  8  Sup.  Ct. 

498;   Burge  v.  St.  Louis,  M.  k  S.  R.  Co.  Rep.  74;  Dickey  v.  Kansas  City  &  I.  Rapid 

100  Mo.  App.  460,  74  S.  W.  7;   3  Purdy's  Transit  R.  Co.  122  Mo.  223,  26  S.  W.  686; 

Beach,  Priv.  Oorp.  p.  1844;  6  Am.  k  Eng.  Helton  v.  St.  Louis,  K.  k  N.  R.  Co.  25  Mo. 

Ene.  Law,  2d  ed.  p.  801;  St.  Louis  k  S.  F.  App.  322. 

R.  Co.  V.  Cross,  171  Fed.  480;  Gulf,  C.  k  w^..,.     i^.-^-.-i«i,    w     x^i.      ««    -  ^ 

0  v  T»   /^         ir      11   TO  rr      \«A    ir   A  Messrs.    Frederick    W.    Lehmann    and 

S.  F.  R.  Co.  V.  Newell,  73  Tex.  334,  15  Am.    ^^^^.^^  „   «» i«-i.    w-        —    j  *u 

flf  n^r.  7ftft  11  Q  \xi\aq.  Pk-.«  I  \/iin\.\  <^«>'«e  H-  English,  Jr.,  argued  the  cause. 
Bt.  Rep.  788,  II  8.  W.  342;  Onase  v.  Michi-  „„^  -,uk  \ji^  va^^^a  -d  r««*^-  «i-.j  « 
rrli^^i.    n^    loi   iLTj-v    iioi    OA  XT    x«7  *nd,  with  Mr.  Edward   P.   Gates,   filed  a 


1.  XT  *   i>     1     ^ft  XT  V    Ain    oe  T  -a  A    AA4  *  trust  lUHQ  to  wuicu  ine  creQitors  wej 

•eh  Nat   Bank.  49  Neb  412.  35  L.R.A^444.  ^.^j^  .^           .      ^  ^^  .tockholder.. 

T  ?•  !       «?■  J'  tl                  '      '^^  Central  Improy.  Co.  v.  Cambria  Steel  Co. 

V.  Johnston.  63  AU.  237.  120  C.  C.  A.  121.  201  Fed.  811,  127  C.  C.  A. 

If  the  Southern  Company  and  the  Belt    ,«.    aM\  i?^    ana     xr    *v  n    -o    n 

^                 ,                        I'j  X  J         J       AU  ^8*»  210  Fed.  696;   Northern  P.  R.  Co.  t. 

Company    became    consolidated    under    the    x»^^,   aoa  tt   q   .iqo    k7  t    ^   ooi    oo  o 

*-..    *^     :     .   .    ,              I  .      J  V     AU     rr      A  l'<>yd,  228  U.  S.  482,  57  L.  ed.  931,  33  Sup. 

Missouri  statute,  as  claimed  by  the  Trust  q^"  ^       -- .                                                   *^ 

Company,  then  both  corporations  ceased  to  L,^  ^'         *  u-j    a  xu    *       i               ^      m 

liTiiLrrAi-i                u                  'J  The  amount  bid  at  the  foreclosure  sale  of 

exist.     The  Trust  Company  has  recognized  .,  ^  ^^,.   _        «^                         .,             ... 

•         ,.           .                 .       AU         -A  ***®  S«l^  property  was  no  evidence  of   its 

and   continues   to    recognize   the   existence  y-|„g         r    r     ^ 

of  both  companies,  and  is  estopped  to  assert  t'a        at>*a           /^u-           ».  -^t    t:> 

that  thev  were  consolidated  and  thereby  be-  In^«»t™ent  Registry  v.  Chicago  k  M.  E. 

mat  wi^  were  consoiioatea  ana  tnereoy  DC  ^    ^^    ^^^  ^    ^    ^    J3^^  2^2  ^^    g^, 

came  extinct.  Northern  P.  R.  Co.  v.  Boyd,  228  U.  S.  48*/, 

1. TTi^i;  n    r'i;«?%S?'  v.  Missouri  P.  ^^  l.  ed.  931,  33  Sup.  Ct.  R;p.  554;  Shickle 

f^,^""'   «^  Vp  ^'   loi'     L  ;          *  ^'  V.  Watts,  94  Mo.  410,  7  S.  W.  274;  Mollitt 

501,   6   Sup.   Ct.   Rep    194;    State   ex   re^.  ^    ^^^^^'        ^^^  ^^;  ^^3    3^         ^^ 

Houck  V.  Lesueur,  145  Mo.  322,  46  S.  W.    ^ :«„:ii^  rr'     .a  r.  t      •     -n     xt     a     Z 

lA're    ir    1    1    iL  TT7   T>   n          xr*         •    leo  Louisville  Trust  Co.  V.  LouisviUe  N.  A.  & 

1075;  Keokuk  k  W.  R.  Co.  v.  Missouri,  152  n   j>    n^   t^A  tt   o    uta    ao  r      a    iio/>    in 

YT    o    OAT    00  T      A    Attn    -t A  a        riA    u  C.  R.  Co.  1<4  U.  S.  674,  43  L.  ed.  1130,  19 

U.  S.  301,  38  L.  ed.  450,  14  Sup.  Ct.  Rep.  g       ^.    „       go-                                        * 

592;  Yazoo  k  M.  Valley  R.  Co.  v.  Adams,  n-u       1         r      '          •     *•               -j  j   r 

180  U.  S.  1.  45  L.  ed.  395.  21  Sup.  Ct.  Rep.  ,.  ^'•«  pUn  of  Teorgan.zat.on  provided  for 

240,  77  MiBB.  194.  60  L.R.A.  33,  24  So.  200,  *e  payment  of  the  debts  of  the  old  com- 

317.    28    So.    956;    Vick.burg   &    Y.    City  ^'The  Mtimate  as  to  the  floatinir  debt  was 

Teleph.  Co.  v.  Citizena'  Teleph.  Oo.  79  Miss.  .*"!  ,?r^    '  "  5.  •."'^"°K  "*"  ^*" 

841.  89  Am.  St.  Rep.  666,  30  So.  725;  Lee  "°*    '°*';''"'tl    "•/    ^'^k  °".  '''*°"        * 

y.  Atlantic  Coaat  Line  R.  Co.  160  Fed.  775.  *Tr    *"  ?*.  ?"/  ""^*'  *■•*  P''""  ,  .  .^ 

rp,             •  SAX      U-.  AU    o     AU        n  The  provision  for  the  payment  of  debts 

The  acquisition  by  the  Southern  Company  ji1.au       i                    ^  i-    -a  j  u     au 

...       v*,          juj      ^autiiaA  made  by  the  plan  was  not  limited  by  the 

of  the  stocks  and  bonds  of  the  Belt  Com-  .   .        a      *  au     u     ju  u 

,     .,                    •           J      Ai  interests  of  the  bondholders, 

pany  and  other  companies  under  tlie  reor-  ^^                           i     •        «       j*a          «. 

v....          ,_        \      Aj'j        A  There  was  no  exclusion  of  creditors  who 

ganization    plan    and    agreement    did    not  .      ,      «,    u            j    ^    i  u  u 

^    ^.           *^            i«j  A'         «  AU  y^•ere  also  bondholders  and  stockholders, 

operate  as  a  consolidation  of  those  com-  a,i  x.          ..^               au    m      a  /-« 

Jl  .  All  the  creditors  save  the  Trust  Company 

^  Pullman's  PaUce  Car  Co.  t.  Missouri  P.  were   paid,   and   the   Trust   Company   was 

R.  Co.  115  U.  S.  587,  29  L.  ed.  499,  6  Sup.  P^ITu^V^^'a  r.  aai  a  a 
Ct.  Rep.  194;  Peterson  v.  Chicago,  R.  L  k  ,  The  Trust  Company  was  entitled  to  en- 
P.  R.  Co.  205  U.  S.  364,  61  lTIi.  841,  27  f^"t  the  provisions  of  the  plan  as  a  con- 
Sup,  a.  Rep.  513;  Atchison.  T.  k  S.  P.  R.  *'*^*  '^'ft^l'  ^'  ?*^""^^-  ^  ,^  ^  ^ 
CO.  V.  Cochran,  43  Kan.  225,  7  L.R.A.  414,  ^  ^^^^^  ^,^^'  ^»;"\^;  x  !!J  ^^'^rJ*  * 
19  Am.  St.  Rep.  129,  28  Pac.  151;  Com.  v.  ^  ^-  *®  ^'  ^'  ^^3,  25  L,  ed.  75;  Johns  t. 
Monongahela  Bridge  Co.  216  Pa.  108,  64  Wilson,  180  U.  S.  440,  45  L.  ed.  613.  21  Sup. 
Atl.  909.  8  Ann.  Cas.  1078;  Ulmer  v.  Lime  ^t.  Rep.  445;  Meyer  v.  Lowell,  44  Mo.  328; 
Rock  R.  Co.  98  Me.  579,  66  L.RJL.  387,  67  ^^^e  Mfg.  Co.  v.  aark.  208  Mo.  89,  106 
Atl.  1001;  Exchange  Bank  t.  Macon  Constr.  S.  W.  29. 

Co.  (Mcllghe  ▼.  Macon  Oonstr.  Co.)  97  Ga.  There  was  no  covenant  by  the  Trust  Com- 

1,  88  L.R.A.  800,  25  S.  E.  826;  Jessup  v.  pany  that  it  would  not  hold  the  new  oom- 

niinois  0.  R.  Co.  86  Fed.  736.  pany  for  any  of  the  debts  of  the  old. 

The  foreelotura  of  the  mortgage  upon  the  Webster  t.  Dwelling  House  Ins.  Co.  53 

^S0  S40  U.  8. 


1915. 


KANSAS  CITY  S.  R.  CO.  v.  GUARDIAN  TRUST  CO. 


Ohio  St.  558,  30  L.R.A.  719,  53  Am.  St. 
Rep.  658,  42  N.  £.  546;  Hobbs  v.  McLean, 
117  U.  S.  667,  29  L.  ed.  940,  6  Sup.  Ct.  Rep. 
S70;  United  States  v.  Central  P.  R.  Co.  118 
U.  S.  235,  30  L.  ed.  173,  6  Sup.  Ct.  Rep. 
1038;  Noonan  T.  Bradley,  9  Wall.  394,  19 
L.  ed.  757. 

The  Trust  Company  was  not  barred  aa  a 
creditor  by  participating  in  the  plan  as 
bondholder  and  stockholder. 

The  Southern  Company  was  liable  as  be- 
ing a  consolidation  of  the  old  companies. 

Iicavenworth  County  v.  Chicago,  R.  I.  & 
P.  R.  Co.  134  U.  S.  688,  33  L.  ed.  1064,  10 
Sup.  Ct.  Rep.  708;  State  ex  rel.  Houck  v. 
Lcsueur,  145  Mo.  822,  46  S.  W.  1075; 
J£vana  v.  Interstate  Rapid  Transit  R.  Co. 
106  Mo.  594,  17  S.  W.  489;  Wells  v. 
Missouri-Edison  Electric  Co.  108  Mo.  App. 
<07,  84  S.  W.  204;  Barrie  v.  United  R.  Co. 
138  Mo.  App.  557,  119  S.  W.  1020;  John- 
son V.  United  R.  Co.  247  Mo.  326,  152  S.  W. 
362,  374;  Chicago,  S.  F.  k  C.  R.  Co.  v. 
Ashling  160  111.  373,  43  X.  E.  373;  Shad- 
ford  V.  Detroit,  Y.  &  A.  A,  R.  Co.  130  Mich. 
300,  89  N.  W.  COO. 

The  lands  of  the  Central  Improvement 
Company  did  not  pass  under  the  after- 
acquired  property  clause  of  the  Belt  mort- 
gage. 

Humphreys  v.  McKlssock,  140  U.  S.  304, 
35  L.  ed.  473,  11  Sup.  Ct.  Rep.  779;  Pardee 
V.  Aldridge,  189  U.  S.  429,  47  L.  ed.  883, 
23. Sup.  Ct.  Rep.  514;  Smith  v.  McCullough, 
104  U.  S.  25,  26  L.  ed.  037 ;  Boston  k  N.  Y. 
Air  Line  R.  Co.  v.  Coffin,  50  Conn.  150; 
Dinsmore  y.  Racine  &  M.  R.  Co.  12  Wis. 
650. 

There  it  no  reason  of  law,  policy,  or  mor- 
als for  preferring  stockholders  to  general 
creditors  in  the  reorganization  of  railroad 
properties. 

Messrs.  George  H.  English,  Jr.,  Edward 
P.  Qates,  and  Walter  C.  Clephane  filed  a 
separate  brief  for  the  Guardian  Trust  Com- 
pany. 

Mr.  Harry  8.  Mecartney  argued  the 
eause,  and,  with  Mr.  Newell  H.  Clapp,  filed 
a  brief  for  intervening  stockholders  of  the 
Guardian  Trust  Company: 

The  plan  invited  deposits  of  bonds  and 
stocks  upon  the  express  condition  of  the 
payment  of  the  floating  debt.  The  decree 
ordered  against  the  Southern  can  validly 
rest  upon  this  express  promise  alone. 

The  Key  City,  14  Wall.  653,  20  L.  ed. 
896;  T^sen  v.  Wabash  R.  Co.  15  Fed.  763. 

The  words  of  a  document  will,  in  cases 
of  doubt,  be  construed  most  strongly 
against  the  party  using  them;  and  particu- 
larly is  this  true  in  cases  of  deeds  poll. 

17  Am.  k  Eng.  Enc.  Law,  14. 

A  construction  is  to  be  placed  on  a  docu* 
•0  L.  ed. 


ment  such  as  will  render  it  reasonable 
rather  than  unreasonable,  and  just  to  both 
the  parties  rather  than  unjust.  (17  Am.  k 
Eng.  Enc.  Law,  18),  and  as  being  made  for 
a  legal  rather  than  an  illegal  purpose. 

Such  an  agreement  is  construed  strictly 
against  the  -committee. 

5  Thomp.  Corp.  2d  ed.  |  5993;  United 
Waterworks  Co.  y.  Omaha  Water  Co.  164 
N.  Y.  53,  58  N.  E.  58;  United  Waterworks 
Co.  V.  Stone^  127  Fed.  587;  Industrial  k 
General  Trust  v.  Tod,  180  N.  Y.  215,  73  N. 
£•  7;  Kratzenstein  v.  Western  Assur.  Co. 
116  N.  Y.  54,  5  L.RJk.  799,  22  N.  E.  221. 

If  the  agreement  and  plan  did  not  consti- 
tute an  express  contract,  i.  e.,  a  complete 
agreement  to  pay  the  floating  debt,  then 
they  did  constitute  a  contract  implied  in 
fact  to  make  such  payment. 

15  Am.  k  Eng.  Enc  Law,  1077,  1078. 

One  of  the  instances  where  a  new  cor- 
poration is  liable  for  the  debts  of  an  old 
one  is  where  it  has  in  express  terms  or  by 
reasonable  implication  assumed  the  debts 
of  the  old  corporation. 

10  Cyc  287,  and  cases  cited;  Chicago  k 
I.  Coal  R.  Oo.  ▼.  Hall,  23  L.ILA.  231,  note. 

The  principle  of  estoppel  and  election 
absolutely  controls  this  entire  case. 

16  Cyc.  784-786. 

The  merging  or  joining  together  of  the 
stock  and  assets  of  the  Belt  and  Southern 
companies  constituted  a  consolidation  in 
fact  of  such  companies. 

Leavenworth  County  v.  Chicago,  R.  I.  & 
P.  R.  Co.  184  U.  S.  688,  33  L.  ed.  1064,  10 
Sup.  Ct.  Rep.  708;  Chicago,  S.  F.  &  C.  R. 
Co  V.  Ashling,  160  IlL  373,  43  N.  E.  373; 
Williamson  v.  New  Jersey  Southern  R.  Co. 
26  N.  J.  Eq.  398;  Shadford  v.  Detroit,  Y. 
k  A.  A.  R.  Co.  130  Mich.  300,  89  N.  W.  960. 

The  exchange  of  stock  is  the  distinguish- 
ing feature — the  very  test — of  a  consolida- 
tion. 

Morawetz,  Priv.  Corp.  §  939;  7  R.  C.  L.  §§ 
155,  156;  Louisville,  N.  A.  &  C.  R.  Co.  v. 
Boney,  3  L.R.A.  435,  note;  Chicago  k  I. 
Coal  R.  Co.  y.  Hall,  23  L.RJL.  231,  note; 
7  Thomp.  Corp.  2d  ed.  §  8241. 

There  being  a  statute  of  Missouri  allow- 
ing consolidation,  the  Southern  Company  is 
estopped  to  deny  that  it  did  not  observe 
the  technical  method  required  or  furnished 
by  statutes  to  accomplish  the  same. 

Morawets,  Priv.  Corp.  §  939;  7  R.  C.  L. 
$§  180,  155,  156;  Louisville,  N.  A.  &  C.  R. 
Oo.  V.  Boney,  3  L.R.A.  435,  note;  Chicago 
k  I.  Coal  R.  Co.  ▼.  Hall,  23  L.RJL  231, 
note;  7  Thomp.  Corp.  2d  ed.  §  8241. 

The  new  corporation  is  liable: 

1st.  When  it  is  merely  a  ''continuation'' 
of  the  old  (this  case). 

2d.  When  it  has  by  "express  terms  or  by. 

587 


172-174 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct. 


reasonable  implication"  aasumed  the  debts 
of  the  old  {this  case). 

3d.  Where  it  has  received  the  assets  of 


Company.  In  September,  1900,  a  suit  waa 
begun  to  foreclose  the  Belt  mortgage,  and 
on  December  31,  1001,  it  was  sold  for  th» 


the  old  under  such  circumstances  as  to  make    amount  of  its  mortgage  to  the  appellant, 
xv^  A i-j * — J xu j.x —     jjjg  court  of  appeals  thought  it  plain  that 

the  foreclosure  was  part  of  the  prigiuai 
plan;  and  as  it  also  thought  that  the  mort- 
gaged property  was  worth  enough  above  the 
mortgage  to  pay  the  unsecured  creditors,  it 
held  that  the  stockholders,  when  receiving 
pay  for  their  stock,  were  receiving  it  in 
substance  as  the  proceeds  of  a  transaction 
that  removed  all  property  of  the  Belt  Com- 
pany from  its  unsecured  creditors'  reach. 
The  appellant  was  the  principal  holder  of 
the  Belt  Company  stock,  as  well  as  the 
purchaser  of  its  property  with  notice  of  the 
outstanding  debts,  and  therefore  was  de- 
creed to  pay  the  Trust  Company's  claim. 

The  proceedings  began  with  a  creditors' 
bin  by  the  Cambria  Steel  Company  against 
the  Belt  Company  and  the  Guardian  Trust 
Company  to  prevent  the  latter  from  selling 
securities  held  by  it  for  an  alleged  debt  of 
the  Belt  Company,  the  bill  denying  the  debt. 
The  court  of  [174]  appeals  thought  that 
this.suit  was  really  a  suit  of  the  appellant. 
The  Cambria  Steel  Company  has  disap- 
peared and  the  proceedings  have  been  car- 
ried on  by  the  Belt  Company,  the  instru- 
ment of  the  appellant,  and  later  by  the 
appellant,  intervening  in  the  suit,  and  all 
charging  that  the  Trust  Company  was  in- 
debted to  the  Belt.  The  Trust  Company, 
on  the  other  hand,  asserted  its  rights  and 
prayed  judgment  for  its  debt  in  its  answer 
to  the  Belt,  although  it  failed  to  insert 
a  similar  prayer  in  its  answer  to  appellant. 
The  ground  of  the  appellant's  intervention 
was  that  the  Belt  mortgage  covered  after- 
acquired  property,  so  that  it  was  entitled  to 
the  securities  in  the  Trust  Company's  hands 
unless  the  Trust  Company  could  make  good 
its  claim.  On  the  other  hand,  the  decree 
foreclosing  the  Belt  mortgage  expressly  left 
open  the  right  of  the  Trust  Company  to 
contend  that  the  appellant  was  bound  to  pay 
the  Belt  Company's  unsecured  debts. 

The  appellant  attacks  the  conclusion  of 
the  circuit  court  of  appeals  upon  several 
grounds.  In  the  first  place  it  contends  that 
the  Trust  Cbmpany  is  bound  by  the  plan 
because  it  was  a  party  to  it,  exchanged  its 
own  Belt  Company  stock  in  pursuance  of  it, 
was  a  depositary  undor  it,  and  used  all  its 
influence  to  induce  other  stockholders  and 
bondholders  to  come  in.  It  asserts  that  the 
plans  contained  an  express  covenant  not  to 
hold  the  new  company  liable  for  the  debts 
of  the  old  one  It  also  asserts  that  the 
property  was  not  worth  more  than  the 
mortgage.  We  will  consider  these  and 
some  subordinate  matters  in  turn. 

The  plan  presented  elaborate  estimates  of 

240  V.  S. 


the  transaction  a.  fraud  upon  the  creditors. 

4th.  Where  a  statute  imposes  such  a  lia- 
bility (this  case). 

Chicago  &  I.  Coal  R.  Co.  v.  Hall,  23 
LJLA.  231,  note;  7  R.  C.  L.  §  156. 

The  equities  in  favor  of  the  Trust  Com- 
pany result  from  consolidation  alone,  and 
from  the  express  promise  in  the  plan. 

Northern  P.  R.  Co.  v.  Boyd,  228  U.  S. 
482,  57  L.  ed.  031,  33  Sup.  Ct.  Rep.  554. 

The  liability  in  every  such  case  is  a  full 
liability,  and  is  not  limited  to  the  value  of 
the  stock  or  property  given  the  old  stock- 
holders, nor  to  the  value  of  the  assets  trans- 
ferred. 

7  R.  C.  L.  §  155. 

Mr.  Justice  Holmes  delivered  the  opin- 
ion of  the  court: 

This  is  an  appeal  from  a  decree  in  which 
the  circuit  court  of  appeals  decided  that 
the  Guardian  Trust  Company,  as  an  un- 
secured creditor  of  the  Kansas  City  Subur- 
ban Belt  Railroad  Company,  was  entitled 
to  charge  the  appellant  for  the  Belt  Com- 
pany's debt,  because  the  reorganization 
scheme,  adopted  upon  a  foreclosure  of  a 
mortgage  of  the  Belt  Company's  property 
and  a  purchase  by  the  appellant,  left  the 
unsecured  creditors  inadequately  provided 
for,  while  it  made  a  considerable  provision 
for  the  stockholders  in  the  Belt  Road.  120 
C.  C.  A.  121,  201  Fed.  811,  127  C.  C.  A. 
184,  210  Fed.  696.  See  Northern  P.  R.  Co. 
V.  Boyd,  228  U.  S.  482,  57  L.  ed.  931,  33 
Sup.  Ct.  Rep.  554. 

The  facts  are  less  complicated  than  the 
proceedings  that  [173]  have  grown  out  of 
them.  The  Kansas  City,  Pittsburg,  A  Gulf 
Railroad  extended  from  Kansas  City  to  Port 
Arthur  on  the  Gulf  of  Mexico.  It  used  ter- 
minals at  Kansas  City  belonging  to  the 
Belt  company  above  mentioned,  and  com- 
panies in  its  control,  and  at  Port  Arthur 
belonging  to  a  Dock  Company.  All  three 
were  mortgaged,  and  after  a  default  on  the 
bonds  of  the  Gulf  Company  in  1899,  a  plan 
was  made  to  bring  the  road  and  terminals 
into  one  hand.  The  Gulf  Company's  mort- 
gage was  to  be  foreclosed  and  a  new  com- 
pany formed,  which  was  to  exchange  its  own 
securities  for  the  stock  and  bonds  of  the 
Gulf,  Dock,  and  Belt  Companies,  making  a 
new  mortgage  to  raise  the  necessary  funds. 
The  Gulf  Company's  mortgage  was  fore- 
closed, the  appellant  company  was  formed, 
issued  its  new  securities,  and  in  March  and 
April,  1900,  became  the  owner  of  the  Gulf 
road  and  of  most  of  the  stocks  and  bonds 
of   the  old  companies^  including   the   Belt 

sss 


1915. 


KANSAS  CITY  S.  R.  CO.  t.  GUARDIAN  TRUST  CO. 


174-177 


the  funds  required.     One  item  was:   "For 
present  stock  [of  the  Kansas  City  Suburban 
Belt  Railroad  Company]  one  quarter  of  a 
diare   of   new   preferred   stock   and   three 
quarters  of  a  share  of  new  common  stock 
of  the   company   as   reorganized  for  each 
share  of  the  present  stock  of  those  who  may 
deposit  thervimder."     The  Trust  Company 
exchanged  its  stock  and  it  is  said  that  by 
ito  retention  of  this  benefit  [175]  it  has 
precluded  itself  from  claiming  its  debt.  But 
the  plan  also  stated  at  the  outset  as  one  <^ 
the  results  to  be  attained,  "The  payment  of 
the  floating  debt  and  the  existing  Car  Trust 
obligations,"  and  at  a  later  point  it  allowed 
for  payment  of  floating  debts,  $475,000,  to 
come  from  proceeds  of  the  sale  of  first  mort- 
gage bonds  and  preferred  stock  and  pay- 
ment of  $10  per  share  by  participating  stock- 
holders.   It  is  true  that  the  estimate  turned 
oat  to  be  much  too  small,  but  the  plan  did 
not  on  its  face  give  notice  of  an  intent  to 
prefer  the  Belt  stockholders  to  its  creditors, 
and  therefore  t&e  Trust  Company,  by  assent- 
ing to  it  and  exchanging  stock  under  it, 
lost  no  rights.    What  has  happened  is  that, 
owing  perhaps  to  unexpected  difficulties,  the 
plan  has  not  been  carried  out.    The  appel- 
lant has  no  ground  for  complaining  that  the 
Trust  Company  has  not  tendered  back  its 
stock,  whidi  it  took  before  the  foreclosure 
of  the  Belt  Road  was  begun. 

But  it  is  said  that  the  Trust  Company 
covenanted  not  to  assert  its  claim  because  the 
agreement  provided  that  "no  right  is  con- 
ferred, nor  any  trust,  liability,  or  obligation 
{except  .  •  .)  is  created  by  this  agreement 
or  the  plan,  or  is  assumed  hereunder,  or  by 
or  for  any  new  company  in  favor  of  any 
bondholder  or  any  other  creditor  or  any 
holder  of  any  claims  whatsoever  against  the 
said  companies,  .  .  .  with  respect  to  any 
property  acquired  by  purchase  at  any  fore- 
closure sale."  It  appears  to  us  that  argu- 
ment cannot  make  plainer  the  meaning  of 
these  words.  They  exclude  an  obligation 
arising  from  the  instrument,  but  neither 
purport  to  nor  could  exclude  rights  of  cred- 
itors founded  on  the  facts  to  which  we  have 
referred.  Those  rights  were  untouched,  and 
none  the  less  that  this  particular  creditor 
became  a  party  to  the  agreement  because  of 
its  other  interests  that  were  concerned.  Wo 
may  remark  in  this  connection  that  we  are 
squally  unable  to  find  in  the  plan  a  con- 
tract in  favor  of  the  Trust  Company  as  an 
imsecured  creditor.  The  plan  sets  out  a 
[176]  general  scheme  that  it  was  hoped 
would  be  worked  out,  but  its  nature,  the 
words  quoted,  and  the  authority  givoi  to 
the  committee  for  carrying  out  the  plan  to 
modify  it  and  to  use  their  discretion,— all 
are  inconsistent  with  the  notion  of  a  prom- 
ise thSrt  all  unsecured  debts  should  be  paid. 
•0  L.  cd. 


As  the  claim  of  the  Trust  Company  was 
put  by  the  court  of  appeals  upon  the  equi- 
table Tiifiit  of  creditors  to  be  preferred  to 
stockholders  against  the  property  of  a 
debtor  corporation,  it  is  essential  to  inquire 
whether  the  appellant  received  any  such 
property, — ^that  is,  whether  it  got  by  the 
foreclosure  more  than  enough  to  satisfy  the 
mortgage,  which  was  a  paramount  lien. 
The  master  found,  as  he  expressed  it,  in  the 
absence  of  proof  to  the  contrary,  that  the 
amount  for  which  the  property  was  sold, 
$1,000,000,  the  amount  of  the  mortgage,  was 
its  fair  market  value.  Although  the  evi- 
dence was  not  reported,  the  circuit  court  of 
appeals  was  of  opinion  that  it  sufficient- 
ly appeared  that  there  was  a  valuable 
equity.  The  argument  for  the  appellant 
assumes  that  the  different  oonclusion  was 
reached  while  leaving  the  master's  find- 
ing to  stand.  But  the  decision  rather 
lays  that  finding  on  one  side  upon  con- 
siderations that  may  be  summed  up  in 
a  few  words.  The  allowance  made  for  the 
Belt  Company's  bonds  shows  that  they  were 
regarded  as  well  secured.  The  stockholders 
of  the  Qulf  Company  in  their  exchange  paid 
$10  a  share  for  stock  of  the  appellant  re- 
ceived by  them.  Therefore  it  must  be  as- 
sumed that  the  stock  of  the  appellant  was 
worth  at  least  that  amount.  Therefore  the 
$4,750,000  of  that  stock  given  for  the  Belt 
Company's  stock  was  worth  at  least  $476,- 
000,  and  probably  more.  But  the  value  of 
this  stock  depended  on  the  value  of  the 
Belt  Company's  property  above  the  mort- 
gage. It  appears  to  us  that  while  perhaps 
not  justifying  definite  figures,  the  reason- 
ing warrants  the  belief  that  there  was  an 
equity  for  which  the  appellant  must  ac- 
count. 

,  The  appellant  urges  that  the  foreclosure 
sale  is  to  be  [177]  treated  as  a  distinct 
transaction, — ^that  after  it  had  become  the 
owner  of  the  greater  part  of  the  bonds  and 
stock  of  the  Belt  Company  it  was  free  to  do 
as  it  pleased.  If  it  had  dimply  kept  the 
stock  it  would  have  incurred  no  liability  to 
creditors  of  the  Bdt  Company,  and  an  inde- 
pendent foreclosure  would  put  it  in  no  worse 
place.  But  the  ownership  of  the  Belt  Road 
by  the  new  company  was  contemplated  front 
the  first,  and  although  no  fraud  on  cred- 
itors was  suggested  or  intended  in  the  plan, 
still  the  court  of  appeals  was  justified  in 
regarding  the  whole  proceeding  as  one  from 
the  start  to  the  close,  and  in  throwing  on 
the  appellant  the  responsibility  of  so  carry- 
ing it  out  as  to  avoid  inequitable  results. 

It  is  said  that  the  Trust  Company  is 
barred  by  laches:  that  the  appellant  took 
possession  on  January  1,  1902,  and  that  the 
Trust  Company  did  not  assert  its  claim  un- 
til 1005  in  this  cause;  that  it  knew  and 

58t 


177-179 


SUPRRME  COURT  OF  THK  UNITED  STATES. 


OOT.  TdX, 


WM  Intimktelj  eonneclwl  with  every  itep 
of  the  r«orguiizatioa,  ud  wa«  lilent  at  a 
time  when  ita  conduct  would  influence 
othnra,  ■■  the  eucceiaful  suertion  of  ita 
claim  would  have  depreaaed  the  market 
value  of  the  Appellant'a  stock  and  bonda. 
But  the  Trnat  Company  set  up  its  claim  in 
thia  suit  In  answer  to  the  Cambria  bill  on 
November  S,  1000.  The  very  ground  of  the 
bill  waa  to  prevent  the  Traat  Company  from 
aelliag  securities  to  satisfy  the  claim  aa  it 
had  given  notice  that  it  intended  to.  The 
company  tried  to  became  a  party  to  the  Belt 
foreclosure  and  did  succeed  in  saving  its 
rights  from  prejudice.  When  later  the  Belt 
Company  aod  the  appellants  came  Into  thia 
suit,  it  set  up  ita  claim  again.  Without 
going  into  further  detail  we  are  o(  opinion 
that  the  Trust  Company  is  not  barred. 

Same  technical  objections  may  be  left 
pretty  much  upon  the  decision  below.  127 
C.  C.  A.  1S4,  210  Fed.  669.  It  ia  objected 
that  the  liability  of  the  appellant  is  not 
open  because  the  exception  to  the  maater's 
conclusion  against  it  waa  put  upon  other 
grounds  than  the  merits,  but  we  [ITS]  see 
no  reaaon  to  doubt  that  the  court  of  appeals 
waa  ri^t  in  thinking  that  justice  would  be 
done  by  adopting  the  course  that  it  did.  So 
it  ia  said  that  the  appellant  was  induced  by 
the  form  of  the  eiceptiona  to  forego  reopen, 
ing  the  maater's  finding  that  the  Belt  Com- 
pany waa  indebted  to  the  Trust  Company. 
But  it  is  not  to  be  believed  that  the  sppel. 
lant  haa  given  up  anything  that  it  thought 
worth  insisting  up<m.  127  O.  C.  A.  184,  210 
Fed.  TOO.  So  as  to  the  absence  of  a  ipeciflc 
prayer  for  relief  in  the  Trust  Company's 
answer  to  the  appellant's  intervention  in 
its  own  name.  In  short,  while  it  ia  true 
that  reorganization  plans  often  would  fail 
if  the  old  stockholders  could  not  be  In- 
duced to  come  in  and  to  contribute  some 
fresh  money,  and  that  the  necessity  of  such 
arrangements  should  lead  courts  to  avoid 
strtiSeial  scruples,  atill  we  are  not  prepared 
to  say  that  the  court  of  appeals  was  wrong 
In  flnding  that  there  had  been  a  transgres. 
aion  of  the  well-settled  rule  of  equity  in 
this  case,  or  that  it  went  further  than  to 
see  that  substantial  justice  should  be  done. 

There  is  a  motion  to  dismiss  upon  which, 
in  view  of  our  decision,  the  defendant  in 
error  would  not  desire  to  insist,  and  on  the 
other  side  a  petition  for  certiorari  in  case 
its  appeal  should  be  dismissed.  In  the  cir- 
cumstances the  distinctions  become  of  little 
importance.  But  the  Cambria  bill  asserted 
a  lien  under  the  judgment  of  a  Federal 
court,  and  the  petition  of  the  appellant  as- 
serted title  under  a  decree  of  a  Federal 
court,  BO  that  the  decree  may  be  affirmed 
Upon  the  appeal.  Cooke  v.  Avery,  147  U. 
S.  87S.  87  I'  «d.  209,  13  Sup.  Ct.  Rap.  340; 
S0O 


Commercial  Pub  Co.  t.  Backwitb,  188  D. 
S.  567,  669,  47  L.  ed.  598,  609,  £3  Sup.  Ct 
Rep.  382.  The  case  haa  been  ao  fully  dia- 
cussed  below  that  we  think  it  ui 
go  into  further  detail. 
Decree  afErmed. 

The  Chut  Jcsticb  and  Mr.  Jostioe  Taa 
I>()Tant«r  are  o(  opinion  that,  upon  tlw 
findings  of  the  master,  the  decrae  should  b» 
reveraed,  and  therefore  dissent. 


[IT^]  ISADOR  STRAUS  and  Nathan 
Straus,  Trading  and  Doing  Busineaa  nn' 
der  the  Firm  Name  and  Style  of  R.  H. 
Uacy  A  Company,  Petitioners, 

NOTASEHE  HOSIERY  COMPANY. 

(See  S.  C,  Reporter's  ed.  179-183.) 

Trademark  —  raise  representation  a* 
bar  to  relief. 

1.  A  trademark  tor  hosiery,  in  which 
the  word  "Notaseme"  is  prominently  dis- 
played, with  the  statement  that  it  is  r«is- 
tered  in  the  United  States  Patent  OlBoa, 
when  in  fact  the  trademark  as  registered 
does  not  contain  the  word  "Notaseme," 
registration  having  previously  been  r»- 
fused  to  the  trademark  with  that  word 
upon  it,  embodies  such  misrepresentation 
that  it  will  not  be  protected. 
[For  other  cases,  see  Trademark  IV.  b.  In  Di- 
gest Sup.  Ct.  leos.i 
DamBs«B  —  nnfalr  oompetltlon  —  loM 

Z.  Unfair  imitation  of  a  label  does  not 
charge  the  user  with  liability  to  account 
for  all  the  profits,  where  the  supposed  un- 
fairness  consists  mainly  in  the  Imitation  of 
a  device  which,  by  reason  of  misrepresenta- 
tion, has  lost  its  protection  as  a  trademark. 
IVar  other  cues,    tee    DsniiRn,   VI.   t.    In    Dl- 

geat    tup.   Ct.    laOB.] 
Damnces  —  nnfatr  competition  —  kMt 

3.  So  tar  as  purchasers  from  the  un- 
fair Imitator  of  a  laliel,  which,  by  reason  of 
misrepresentatiDn,  has  lost  its  protection 
ss  a  trademark,  bought  for  any  other  rea- 
son but  the  inducement  of  the  design  aup- 
posed  to  indicate  the  other's  product,  the 
latter  has  no  claim  on  the  imitator's  profits. 
rroT  other  caut,  nee  Damsgea,  VI.  (,  In  !>!• 
gett    Sup.    Ct.    IMS.] 

[No.  IM.] 

Argued  Janusry  17  and  18,  191S.     Decided 
February  21,  1910. 

Note. — On  deception  as  bar  to  relief  for 
infringement  of  trademark — see  notes  t» 
Joseph  V.  Macowsky,  10  UR-A.  63;  and 
Clinton  E.  Wordcn  &  Co.  v.  California  Fig 
Syrup  Co.  47  L.  ed.  U.  B.  282. 

On  damages  for  iufringenent  of  trade- 
mark, as  affected  by  loss  of  profits — m» 
Rose  V.  Birsh,  61  ULA.  823. 

140  <J.  B. 


1913. 


STRAUS  V.  NOTAS£M£  HOSIERY  00. 


ON  WRIT  of  Certiorari  to  the  United 
States  Circuit  Court  of  Appeals  for 
the  Second  Circuit  to  reriew  a  decree  which, 
on  a  second  appeal,  affirmed  a  decree  of  the 
District  Court  for  the  Southern  District  of 
New  York  in  favor  of  complainant  in  a 
suit  for  infringement  of  a  trademarlc  and 
unfair  competition.    Reversed. 

See  same  case  below  on  first  appeal,  110 
O.  C.  A.  134,  201  Fed.  99;  on  second  appeal, 
131  C.  C.  A.  503,  215  Fed.  861. 

The  facts  are  stated  in  the  opinion. 

Mr.  fidoAond  B.  Wise  argued  the  cause 
and  filed  a  brief  for  petitioners: 

The  petitioners  were  not  guilt^r  of  unfair 
trade. 

Goodyear's  India  Rubber  Glove  Mfg. 
Co.  V.  Goodyear  Rubber  Co.  128  U.  S.  598, 
32  L.  ed.  535,  9  Sup.  Ct.  Rep.  166;  Standard 
Paint  Co.  v.  Trinidad  Asphalt  Mfg.  Co. 
220  U.  S.  461,  55  L.  ed.  543,  31  Sup.  Ct. 
Rep.  456 ;  Elgin  Nat.  Watch  Co.  v.  Illinois 
Watch  Case  Co.  179  J.  S.  665,  45  L.  ed.  365, 
21  Sup.  Ct.  Rep.  270;  J.  G.  Rowley  06.  v. 
Rowlet,  113  C.  C.  A.  386,  193  Fed.  390; 
Rathbone,  S.  k  Co.  v.  Champion  Steel  Range 
Co.  37  LJLA.(N.S.)  258,  110  C.  C.  A.  596, 
189  Fed.  26;  Hanover  Star  Mill.  Co.  v. 
Allen  k  W.  Co.  L.RJL  1916D,  136,  125  0. 
C.  A.  515,  208  Fed.  516;  Rushmore  v. 
Badger  Brass  Mfg.  Co.  117  C.  0.  A.  255, 
198  Fed.  379;  G.  k  C,  Merriam  Co.  y.  Saal- 
field,  117  C.  C.  A.  245,  198  Fed.  369 ;  3  Cyc. 
760,  and  notes.  Howe  Scale  Co.  v.  Wyckoff, 
Seamans  k  Benedict,  198  tJ.  S.  118,  140,  49 
L.  ed.  972,  986,  25  Sup.  Ct.  Rep.  609. 

The  court  below  erroneously  followed  the 
rule  of  permitting  recovery  of  profits  au- 
thorized by  statute  in  cases  of  patents, 
copyrights,  and  trademarks,  although  there 
was  a  total  lack  of  proof  of  confusion  of 
goods,  of  substitution  of  goods,  or  compe- 
tition between  the  parties. 

Hanover  Star  Mill.  Co.  v.  Allen  k  W. 
Co.  L.RJL  1916D,  136,  125  C.  C.  A.  515, 
208  Fed.  516;  Saxlehner  v.  Siegel-Cooper 
Co.  179  U.  S.  42,  45  L.  ed.  77,  21  Sup.  Ct. 
Rep.  16;  Rushmore  v.  Badger  Brass  Mfg. 
Co.  117  C.  0.  A.  255.  198  Fed.  379;  G.  k  C. 
Merriam  Co.  v.  Saalfield,  117  C.  C.  A.  245, 
198  Fed.  369. 

Even  if  the  rule  in  patent  and  trademark 
eases  as  to  the  recovery  of  profits  as  dam- 
ages were  applicable,  the  decision  of  the 
eourt  below  was  erroneous  in  awarding  as 
damages  all  profits  made  by  the  petitioners 
on  the  sale  of  "Irontez"  hosiery  in  the  ab- 
senoe  of  proof  of  how  much,  if  in  any  re- 
speeta  at  all,  the  label  eontributed  to  the 
sale  of  the  article.  • 

Westinghouse  Eleetrie  k  Mfg.  Co.  v. 
Wagner  Electric  k  Mfg.  Co.  225  U.  S.  604, 
614,  615,*  56  L.  ed.  1222,  1226,  1226,  41 
tt  Ij.  ed. 


LJl.A.(N.S.)  653,  32  Sup.  Ot  Rep.  691; 
Dowagiac  Mfg.  Co.  v.  Minnesota  Moline 
Plow  Co.  235  U.  a  641,  69  L.  ed.  898,  36 
Sup.  Ot  R^.  221. 

In  actual  use,  the  word  ''Notaseme*'  in 
white  script  on  the  black  band,  with  the 
word  "trademark"  in  the  flourish  under  the 
word,  was  the  conspicuous  feature  -of  the 
mark,  and,  in  that  form,  had  been  refused 
registration  by  the  Patent  Office,  because 
the  word  correctly  described  the  character 
of  the  article.  That  the  rejection  in  that 
form  was  perfectly  proper  is  beyond  criti- 
cism. (Columbia  Mill  Co.  v.  Alcorn,  150 
U.  S.  460,  87  L.  ed.  1144,  14  Sup.  Ct.  Rep. 
161;  Elgin  Nat.  Watch  Co.  v.  Illinois 
Watch  Case  Co.  179  U.  S.  665,  46  L.  ed.  365, 
21  Sup.  Ct.  Rep.  270) ;  and  the  fact  that 
the  words  were  condensed  into  one  does  not 
change  this  rule. 

Barrett  Chemical  Co.  v.  Stem,  176  N.  Y. 
27,  68  N.  B.  65. 

When  that  descriptive  name  was  removed 
and  the  label  wHs  registered  as  a  trade- 
mark, the  rectangular  figure  traversed  by  a 
black  band  did  not,  in  the  slightest  degree, 
indicate  by  its  own  meaning  (and  there  was 
no  proof  of  such  indication  by  association) 
the  origin  or  ownership  of  the  article  to 
which  it  was  to  be  applied,  and  as  it  did 
not  do  so,  it  served  no  useful  purpose. 

Amoskeag  Mfg.  Co.  v.  Trainer,  101  U.  S. 
51,  25  L.  ed.  998. 

Though  colors  on  a  label  may  make  the 
dress  of  the  article  striking  and  attractive, 
the  mere  coloring  is  not  usually  the  sub- 
ject of  a  trademark. 

Ooats  V.  Merrick  Thread  Co.  149  U.  S. 
562,  87  L.  ed.  847,  13  Sup.  Ct.  Rep.  966. 

Where  a  symbol  or  label  is  worded  so  as 
to  make  a  distinct  assertion  which  is  false, 
the  trademark  will  not  be  recognised,  nor 
can  any  right  to  its  exclusive  use  be  main- 
tained. 

Holzapfels  Composition  Co.  v.  Rahtjen's 
American  Composition  Co.  183  U.  S.  1,  46 
L.  ed.  49,  22  Sup.  Ct.  Rep.  6. 

Mr.  E.  Hayward  Fairbanks  argued  the 
cause,  and,  with  Mr.  James  H.  Qriffin,  filed 
a  brief  for  respondent: 

In  such  a  trademark  case  as  this,  where 
a  property  right,  a  monopoly  created  by 
statute,  is  invaded,  a  complainant  is  en- 
titled to  all  defendants'  profits,  however 
made,  from  the  iU^al  use  of  the  spurious 
mark,  and  in  ease  of  kny  uncertainty,  all 
doubts  will  be  resolved  against  the  in- 
fringer. 

Burdell  v.  Denig,  92  U.  8.  716,  23  L.  ed. 
764;  Dan.  Oh.  Pr.  6th  Am.  ed.  p.  1634; 
Upton,  Trade-Marks,  233,  234;  Benkert  v. 
Feder,  34  Fed.  636;  Root  v.  Lake  Shore  k 
M.  &  B.  Co.  106  U.  8.  189,  207,  26  L.  ed. 

691 


170-181 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbbm, 


975,  981;  Tilgman  ▼.  Proctor,  125  U.  S.  136, 
148,  81  L.  ed.  664,  668,  8  Sup.  Ct.  Rep.  804; 
ThaddeuB  Dayida  Co.  v.  Davids  Mfg.  Oo.  233 
U.  S.  461,  58  L.  ed.  1046,  34  Sup.  Ct.  Rep. 
648,  Ann.  Cas.  1015B,  322;  EdeUten'  v. 
Edelflten,  1  DeG.  J.  &.  S.  185,  9  Jur.  N.  S. 
470,  7  L.  T.  N.  S.  768,  11  Week.  Rep.  328; 
Lever  t.  Goodwin,  L.  R.  36  Ch.  Div.  1,  57 
L.  T.  N.  S.  583,  36  Week.  Rep.  177 ;  Sawyer 
y.  Kellogg,  0  Fed.  601 ;  Atlantic  Mill.  Co.  v. 
Rowland,  27  Fed.  24;  Graham  v.  Plate,  40 
Cal.  593,  6  Am.  Rep.  639;  Avery  v.  Meikle, 
85  Ky.  435,  448,  7  Am.  St.  Rep.  604,  3  S. 
W.  609;  W.  R.  Linn  Shoe  Co.  v.  Auburn 
Lynn  Shoe  Co.  100  Me.  461,  479,  4  L.R.A. 
(N.S.)  960,  62  Atl.  499;  RegU  v.  Jaynes, 
191  Mass.  245,  77  N.  E.  774;  Forster  Mfg. 
Co.  V.  Cutter-Tower  C6.  211  Mass.  219,  97 
N.  E.  749;  Paul,  Trade-Marks,  9  326. 

Broadly  speaking,  it  is  not  exact  to  sepa- 
rate the  doctrine  of  trademark  infringe- 
ment and  unfair  competition.  The  un- 
derlying doctrine  is  the  same,  the  control 
of  fraud,  great  or  petty,  however  the  fraud- 
ulent transaction  has  been  carried  on,  by 
the  intervention  of  equity.  Trademark  in- 
fringement is  obviously  but  one  form  of 
unfair  competition. 

McLean  v.  Fleming,  96  U.  S.  245,  24  L.  ed. 
828 ;  Blanchard  v.  HiU,  2  Atk.  484 ;  Redda- 
way  V.  Banham  [1896]  A.  C.  204,  74  L.  T. 
N.  S.  289,  44  Week.  Rep.  638,  25  Eng.  Rul. 
Cas.  193;  Goodyear's  India  Rubber  Glove 
Mfg.  Co.  v.  Goodyear  Rubber  Co.  128  U.  S. 
598,  32  L.  ed.  535,  9  Sup.  Ct.  Rep.  166; 
Lawrence  Mfg.  Co.  v.  Tennessee  Mfg.  Co. 
138  U.  S.  537,  34  L.  ed.  997,  11  Sup.  Ct. 
Rep.  396. 

The  successful  suitor  in  equity  is  entitled 
to  recover  the  gains  and  profits  which  ac- 
crued to  the  infringer  and  wrongdoer  by 
his  adoption  of  a  garb  for  his  goods  to 
which  another  has  a  better  and  prior  right, 
particularly  where  there  exists  a  plain, 
fraudulent  intent,  persisted  in  after  notice, 
as  here. 

P.  E.  Sharpless  Co.  v.  Lawrence,  130  C. 
C.  A.  59,  213  Fed.  423;  Saxlehner  v.  Eisner 
k,  M.  Co.  179  U.  S.  19,  45  L.  ed.  60,  21 
Sup.  Ct.  Rep.  7;  Singer  Mfg.  Co.  v.  June 
Mfg.  Co.  163  U.  S.  169,  41  L.  ed.  118,  16  Sup. 
Ct  Rep.  1002;  Singer  Mfg.  Co.  v.  Bent,  163 
U.  S.  207,  41  L.  ed.  132,  16  Sup.  Ct.  Rep. 
1016;  Sawyer  T.  Horn,  4  Hughes,  239,  1 
Fed.  24;  Sartor  v.  Schaden,  125  Iowa,  696, 
101  N.  W.  511;  Avery  v.  Meikle,  85  Ky.  485, 
7  Am.  St.  Rep.  604,  3  S.  W.  609;  Forster 
Mfg.  Co.  v.  Cutter-Tower  Co.  211  Mass.  219, 
97  N.  E.  749;  Florence  Mfg.  Oo.  v.  Dowd, 
110  G.  C.  A.  608,  189  Fed.  44;  Gulden  v. 
Chance,  106  C.  C.  A.  16,  182  Fed.  303; 
G.  k  C.  Merriam  Co.  t.  Saalfield,  117  C.  C. 
A.  246,  198  Fed.  369;  Regis  v.  Jaynes,  191 
JUSmv.  246,  77  N.  E.  774;  Paul,  Trade-Marks, 


p.  566,  S  326;  Williams  v.  Mitchell,  45  C. 
C.  A.  265,  106  Fed.  168;  Walter  Baker  k 
Co.  v.  Slack,  65  C.  C.  A.  138,  130  Fed.  514; 
Wolf  Bros,  k  Co.  v.  Hamilton-Brown  Shoe 
Co.  124  C.  C.  A.  409,  206  Fed.  611. 

Mr.  Justice  Holmes  delivered  the  opin- 
ion of  the  court: 

This  is  a  bill  in  equity  brought  by  the 
Notaseme  Hosiery  Company  to  restrain  in- 
fringement of  a  registered  trademark  and 
unfair  competition  alleged  to  have  been 
practised  by  the  petitioners,  and  to  recover 
damages  and  [180]  profits.  The  plaintiff's 
trademark,  as  registered,  was  a  rectangle 
with  a  black  band  running  from  the  left  hand 
upper  to  the  right  hand  lower  comer,  the 
upper  and  lower  panels  on  the  two  sides  of 
the  band  being  printed  in  red.  As  used,  it 
contained  the  word  "Notaseme"  in  white 
script  upon  the  black  band,  with  the  words 
"Trade  Mark"  in  small  letters  upon  the 
white,  and  beneath  the  label  was  printed 
"Reg.  U.  S.  Pat.  Office."  In  fact  regis- 
tration had  been  refused  to  the  label  with 
the  word  "Notaseme"  upon  it,  that  word 
being  merely  a  corrupted  description  of  the 
seamless  hosiery  sold.  The  defendants, 
among  other  items  of  a  large  retail  busi- 
ness in  New  York,  sold  hose  with  seams, 
which  they  advertised  under  the  name  "Iron- 
tex."  After  this  name  had  been  adopted,  in 
pursuance  of  their  request  designs  were  sub- 
mitted to  them  and  one  was  chosen.  It 
turned  out  that  this  was  made  by  the  print- 
er who  had  made  the  Notaseme  label.  It 
also  was  a  rectangle  with  a  diagonal  blade 
band  and  red  panels,  the  band  in  this  case 
running  from  the  right  hand  upper  comer 
to  the  left  hand  lower,  and  having  the  word 
"Irontex"  in  white  script  upon  the  band  and 
"The  hose  that — wears  like  iron"  printed  in 
black  upon  the  two  triangles  of  red.  The 
defendants  never  had  seen  or  heard  of  the 
plaintiff,  its  label  or  its  goods,  until  Novem- 
ber, 1909,  when  they  were  notified  by  the 
plaintiff  that  they  were  infringing  its 
registered  trademark.  They  ultimately 
stood  upon  their  rights. 

At  the  original  hearing  in  the  circuit 
court  it  was  held  that  the  plaintiff  had  em- 
bodied such  a  misrepresentation  in  the 
trademark  as  used  that  it  would  not  be 
protected,  and  that  unfair  dealing  was  not 
made  out.  This  decision  was  reversed  by 
the  circuit  court  of  appeals  on  the  ground 
that  although  the  evidence  did  not  show 
actual  deception,  the  label  used  by  the  de- 
fendants so  far  resembled  the  plaintiflTi 
that  it  would  have  deception  as  its  natural 
result,  and  that  the  plaintiff  was  entitled  to 
[181]  relief  whether  the  trademark  on  its 
label  was  good  or  bad  as  such.  110  C.  C.  A. 
134, 201  Fed.  09.  The  plaintiff  was  allowed  to 

94t  U.  8. 


191ff. 


STRAUS  V.  NOTASEME  HOSIERY  CO. 


181-183 


recover  profits  from  a  reasonable  time  after  i  have  assumed,  it  was  a  wrong  knowingly 

j»  mm  «  A.  %_        J  A.*  M      A.\^  •  •!  *  A.  * *  J^A.       J         L        X  .#  X%-  •        ^  •  X 


the  defendants  had  notice  of  the  similarity 
of  the  two  designs,  which  was  put  at  Janu- 
ary 1,  1010.  209  Fed.  495,  131  C.  C.  A.  503, 
216  Fed.  861. 

We  agree  with  the  circuit  court  that  the 
plaintiff  is  not  in  a  position  to  recover  for 
an  infringement  of  a  registered  trademark. 
The  maiic  that  it  used  held  out  to  the  pub- 
lic ah  registered  in  the  Patent  Office  pre- 
cisely the  element  that  had  been  rejected 
there.  It  affirmed  that  the  authority  of  the 
United  States  had  sanctioned  that  for  which 
that  authority  had  been  refused,  and  by 
grasping  at  too  much  lost  all,  so  far  as  this 
case  is  concerned.  Holzapfers  Compositions 
Co.  V.  Rahtjen's  American  Composition  Co. 
183  U.  S.  1,  8,  46  L.  ed.  49,  53,  22  Sup.  Ct. 
Rep.  6.  The  liability  of  the  defendant  must 
be  derived  from  unfair  competition  if  it 
exists. 

That  it  was  unfair  to  continue  the  use  of 
A  label  so  similar  in  general  character  to 
the  plaintifTs  we  are  not  disposed  to  deny. 
But  it  does  not  follow  that  the  defendants 
are  chargeable  with  profits  as  a  matter  of 
course.  Very  possibly  the  statutory  rule  for 
wrongful  use  of  a  trademark  may  be  extend- 
ed by  analogy  to  unfair  competition  in  a 
proper  case.  But,  as  the  ground  of  recovery 
in  the  latter  instance  is  that  the  defendant 
has  taken  some  undue  advantage  of  the 
plaintiff's  reputation,  or  that  of  his  goods, 
and  as  the  nature  and  extent  of  the  wrong 
may  vary  indefinitely,  it  cannot  be  assumed 
in  all  cases  that  the  defendant's  sales  were 
due  to  that  alone. 

Ordinarily  imitation  is  enough  to  imply 
that  the  matter  imitated  is  important,  at 
least,  to  the  sale  of  the  goods.  But  when 
the  similarity  arises  as  the  one  before  us 
did,  it  indicates  nothing,  except  perhaps  the 
poverty  of  the  designer's  invention. 
Furthermore  the  defendants'  persistence  in 
tlieir  use  of  the  design  after  notice  proves 
little  or  nothing  against  them.  They  had 
been  advertising  [182]  their  goods  by  name 
and  using  the  design  in  connection  with  the 
name.  The  natural  interpretation  is  not 
that  they  wanted  to  steal  the  plaintiff's 
good  will,  of  which  they  then  learned  for  the 
first  time,  but  that  they  wished  to  preserve 
their  own.  When  they  stood  upon  their 
rights  of  course  they  made  themselves  re- 
sponsible for  the  continued  use  of  a  label 
that  might  be  held  likely  to  deceive,  and  if 
it  should  be  held  manijfestly  to  have  that 
tendency,  they  would  be  chargeable  for 
what,  in  contemplation  of  law,  was  an  in- 
tentional wrong,  or  a  fraud,  although  the 
case  is  wholly  devoid  of  any  indication  of 
an  alHual  intent  to  deceive,  or  to  steal  the 
reputation  of  the  plaintiff's  goods.  If  the 
defendants'  conduct  was  a  wrong,  as  we 
•0  li.  ed. 


committed,  but  no  further  inference  against 
the  defendants  can  be  drawn  from  the  fact. 

It  seems  a  strong  thing  to  give  relief  on 
the  ground  of  unfair  competition  when  the 
supposed  unfairness  consists  mainly  in  the 
imitation  of  a  device  that  sought,  obtained, 
and  lost  protection  as  a  trademark.  If  a 
would-be  trademark  loses  its  protection  as 
such,  that  means  that  the  public  has  a  right 
to  use  it,  and  it  would  be  strange  to  bring 
the  protection  back  simply  by  giving  it  an- 
other name.  If  the  red  square  with  the 
diagonal  black  band  is  not  a  trademark,  it 
would  seem  to  be  free  to  the  world.  See 
Flagg  Mfg.  Co.  V.  Holway,  178  Mass.  83,  91, 
59  N.  £.  667.  Saxlehner  v.  Wagner,  216  U. 
S.  375,  380,  381,  54  L.  ed.  525,  527,  528,  30 
Sup.  Ct.  Rep.  298.  We  assume  that,  coupled 
with  the  script  upon  the  band,  there  is  suf- 
fici^it  pictorial  similarity  to  deceive  some 
persons,  but,  unless  we  go  considerably 
farther,  to  charge  the  defendants  with  all 
the  profits  would  be  unjust. 

The  question  remains  whether  the  peti- 
tioners' sales  probably  were  induced  to  any 
large  extent  by  confusion  in  the  mind  of 
the  public  between  the  petitioners'  goods 
and  the  plaintiff's.  The  goods  were  different 
in  character,  were  called  by  a  different  name, 
were  sold  mainly  in  different  [183]  places 
and  by  parties  not  likely  to  be  mistaken  for 
each  other.  The  petitioners  had  advertised 
them  as  Irontex  since  April,  1908.  Their 
business  was  that  of  retailers  in  the  city  of 
New  York,  where  they  were  widely  known. 
The  Notaseme  Company's  business  was 
wholesale,  from  Philadelphia,  starting  with 
New  England  and  the  South.  So  far  as 
purchasers  bought  because  the  petitioners 
recommended  the  goods,  or  on  the  strength 
of  the  name,  by  whatever  recommended,  as 
distinguished  from  the  colors  and  figures  of 
the  label,  or  from  knowledge  of  the  specific 
article,  or  from  preference  for  full  fashioned 
over  seamless  hose,  or  for  any  reason  but 
the  inducement  of  the  red  square,  bar,  and 
script  supposed  to  indicate  the  plaintiff*s 
hose,  the  plaintiff  has  no  claim  on  the  peti- 
tioners' profits. 

There  is  some  indication  that  the  plain- 
tiff's business  was  mainly  in  hosiery  for 
men,  while  Macy  &  Company's  was  more 
than  three  quarters  for  women  and  children. 
That  the  name,  which  the  defendants  do  not 
imitate,  but,  on  the  contrary,  exclude  by 
using  another  wholly  unlike  it,  was  thought 
more  important  by  the  plaintiff  than  it  now 
is  willing  to  admit,  is  shown  not  only  by  th«t 
use  of  it  upon  the  trademark  proper,  but  by 
the  adoption  of  a  new  name  for  the  plain- 
tiff company  to  conform  to  it.  Taking  aU 
these  considerations  into  account,  coupled 
with  the  absence  of  evidence  that  any  de- 
38  50" 


188,  184 


8UPBBME  COURT  OF  THE  UNITED  STATES. 


Oct.  TwaMp 


ceit  or  substitution  was  aiscomplished  in 
fact,  we  find  it  impossible  to  believe  that 
any  considerable  part  of  the  petitioner's 
business  was  due  to  their  ^oods  being  sup- 
posed to  be  the  plaintiff's  hose.  The  peti- 
tioners properly  were  enjoined  f rcmi  further 
use  of  the  mark  in  controversy,  but,  so  far 
as  the  decree  charged  them  with  profits,  it 
is  reversed. 
Decree  reversed. 

Mr.  Justice  McKennm  and  Mr.  Justice 
Pitney  dissent. 


[184]  GEORGE  D.  ROGERS,  A.  L.  Goetx- 
man,  and  F.  E.  Crandall,  Representing 
Themselves  and  Others  Similarly  Situ- 
ated, Plffs.  in  Err., 

V. 

COUNTY  OF  HENNEPIN  et  al. 

(See  S.  C.  Reporter's  ed.  184-192.) 

Error  to  state  court  «  Federal  qneatlon 
^  decision  on  non-Federal  ground. 

1.  A  decision  of  the  highest  court  of  a 
state  affirming  a  decree  below  which  dis- 
missed a  suit  to  cancel  certain  tax  assess- 
ments, and  to  enjoin  the  collection  of  the 
tax,  cannot  be  said  to  rest  upon  a  ground 
independent  of  the  Federal  questions  raised 
with  respect  to  the  validity  of  the  tax, 
where  the  sole  reason  assigned  by  the  court 
for  its  decision  was  the  controlling  effect 
of  its  prior  decision  in  an  action  by  the 
state  to  recover  the  tax  in  which  some, 
though  not  all,  of  the  same  objections  as 
to  the  validity  of  the  tax  under  the  Federal 
Constitution  were  raised  and  overruled. 
[For    other    cases,    see    Appeal    and    Brror, 

1466-1528,  in  Digest  Sap.  Ct  1008.] 

Taxes  ^  Intangible  property  ^  member- 
ship In  chamber  of  commerce. 

2.  Memberships     in     an     incorporated 
chamber  of  commerce  which  has  no  capital 

stock  and  transacts  no  business  for  profit. 


merely  furnishing  buildings  and  equipment 
for  its  members,  who,  under  its  rules,  trans- 
act business  upon  the  trading  floor,  which 
is  in  fact  a  grain  exchange,  are  property 
and  taxable  as  such. 

[For  other  cases,  see  Taxes,  I.  c,  1,  In  Dlcest 
Sap.  Ct.  1908.] 


JCrror   to   state   court  ^  scope   of 
▼lew  ^  local  law. 

3.  The  question  whether  memberships 

in  a  chamber  of  commerce  are  in  fact  tsjc- 

able   under   the   statutes   of   a   state  is   ik 

matter  of  local  law  with  which  the  Federal 

Supreme  Court,  on  writ  of  error  to  a  state 

court,  is  not  concerned. 

[For  other  cases,  see  Appeal  and  Brror. 
2124-2161,  In  Digest  Sap.  Ct.  1008.1 

Constltntional  law  —  dne  process  of 
law  —  taxes. 

4.  The  assessment  for  taxation  of  mem- 
berships in  a  chamber  of  commerce  under 
the  head  of  "moneys  and  credits"  is  an 
administrative  matter  which  does  not  touch 
the  fundamentals  contemplated  by  the  14th 
Amendment  to  the  Federal  Constitution. 

[For  other  eases,  see  Con-stltutlonul  Law* 
IV.  b,  6,  in  Dlflrest  Sap.  Ct.  1008.] 

Constitutional  law  —  equal  protection 
of  the  laws  —  dne  process  of  law  — » 
double  taxation. 

5.  State    taxation    of   memberships   in 

an    incorporated    chamber   of   commerce   la 

not  repugnant  to  the  Federal  Constitution 

as  double  taxation  because  the  property  of 

the  corporation  has  been  fully  taxed,  since 

such    memberships    are    property,    distinoi 

from  the  assets  of  the  corporation. 

[For  other  cases,  see  Constitutional  Law. 
IV.  a,  4;  IV.  b,  6,  in  Digest  Sup.  Ct.  1908.] 

Taxes  —  situs  ^  membership  In  chant* 
her  of  commerce. 
0.  A  state  may  fix  the  situs  for  taxa* 
tion  of  memberships  in  an  incorporated 
chamber  of  commerce,  furnishing  the  build- 
ings and  equipment  ifor  a  grain  exchange^ 
at  the  place  in  the  state  at  which  the  ex* 
change  is  located,  whether  such  memberships 
be  held  by  residents  or  nonresidents. 

[For  other  cases,  see  Taxes,  I.  c,  6,  in  Digest 
Sop.  Ct.  1908.] 


NoT& — On  the  general  subject  of  writs  of 
enoT  from  United  States  Supreme  Court  to 
state  courts — see  notes  to  Martin  v.  Hun- 
ter, 4  L.  ed.  U.  S.  97;  Hamblin  v.  Western 
Land  Co.  37  L.  ed.  U.  S.  267 ;  Re  Buchanan, 
39  L.  ed.  U.  S.  884 ;  and  Kipley  v.  lUinois, 
42  L.  ed.  U.  S.  998. 

On  what  adjudications  of  state  courts  can 
be  brought  up  for  review  in  the  Supreme 
Coiurt  of  the  United  States  by  writ  of  error 
to  those  courts— see  note  to  Apex  Transp. 
Co.  V.  Oarbade,  62  L.H  Jl.  613. 

On  how  and  when  questions  must  be 
raised  and  decided  in  a  state  court  in  order 
to  make  a  case  for  a  writ  of  error  from  the 
Supreme  Court  of  the  United  States — sec 
note  to  Mutual  L.  Ins.  Co.  v.  Mc€hrew,  63 
L.R^.  83. 

On  what  questions  the  Federal  Supreme 
Court  will  consider  when  reviewing  the 
Ju4gment&  oi  state  courts— see  luyts  to 
S04 


State  ex  rel.  Hill  v.   Dockery,   63   L.R^ 

671. 

As  to  what  constitutes  due  process  of  law» 
generally — see  notes  to  People  v.  O'Brien^ 
2  L.R.A.  266;  KunUs  v.  Sumption,  2  L.R.A. 
666;  Re  Gannon,  6  KR.A.  369;  Ulmaa  t. 
Baltimore,  11  L.R.A.  224;  Oilman  v.  Tuck- 
er, 13  L.R.A.  304;  Pearson  v.  Yewdall,  24 
L.  ed.  U.  S.  436 ;  and  Wilson  v.  North  Caro- 
lina, 42  L.  ed.  U.  S.  866. 

On  the  validity  of  class  legislation,  gen- 
erally— see  notes  to  State  v.  Goodwill,  5 
L.R.A.  621;  and  State  v.  Loomis,  21  L.RJL 
789. 

As  to  constitutional  equality  of  privileges^ 
immunities,  and  protection,  generally — see 
note  to  Louisville  Safety  Vault  k  T.  Co.  t» 
Louisville  k  N.  R.  Co.  14  L.R.A.  679. 

On  membership  in  board  of  trade  or  ex- 
change as  subject  of  taxation — see  note  t» 
SUte  V.  McPhail,  50  L.RJL(N.S.)   266. 

240  U.  8* 


1915. 


ROGERS  y.  HEKNEPIK. 


ConstltDtional  law  —  equal  protection 


7.  The  taxation  of  membershipt  in  an 
ineorporatcd  chamber  of  commerce  does 
not  deny  the  members  the  equal  protection 
of  the  law's  guaranteed  by  U.  S.  Const.,  14th 
Amend.,  because  of  the  exemption  from 
taxation  of  such  organizations  as  the  as- 
sociated press,  lodges,  fraternal  orders, 
churches,  etc. 

[For    other    canes,    see    Constitatlonal    Lew, 
IV.  a.  4,  In  Diflrest  Sup.  Ct.  1908.] 

[No.  104.] 

Argued  December  0,  1915.    Decided  Febru- 
ary 21,  1910. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Minnesota  to  review  a  decree 
which  affirmed  a  decree  of  the  District 
Court  for  the  County  of  Hennepin,  in  that 
state,  in  favor  of  defendants  in  a  suit  to 
cancel  certain  tax  assessments  and  to  re- 
strain the  collection  of  the  taxes.    Affirmed. 

See  same  case  below,  124  Minn.  539,  145 
N.  W.  112. 

The  facts  are  stated  in  the  opinion. 

Mr.  fl.  V.  Mercer  argued  the  cause  and 
filed  a  brief  for  plaintiffs  in  error: 

It  is  aa  possible  to  invade  the  rights  of 
due  process  of  law  and  equal  protection, 
secured  by  the  14th  Amendment,  through 
the  judicial,  as  through  any  other,  depart- 
ment of  the  state. 

Fayerweather  v.  Ritch,  195  U.  S.  276,  49 
L.  ed.  193,  25  Sup.  Ct.  Rep.  58;  Chicago, 

B.  &  Q.  R.  Co.  V.  Chicago,  166  U.  S.  226,  41 
L.  ed.  979,  17  Sup.  Ct.  Rep.  581;  Citizens' 
Say.  k  L.  Asso.  v.  Topdca,  20  Wall.  655,  22 
L.  ed.  455. 

The  upholding  of  this  decision  on  the 
basis  of  ''money  and  credits"  by  reference 
to  State  V.  McPhail,  124  Minn.  398,  50 
L.R.A.(N.S.)  255,  145  N.  W.  108,  Ann.  Caa. 
J915C,  538,  is  so  utterly  devoid  of  statutory 
or  other  basis  as  to  be  a  mere  arbitrary 
judicial  foreclosure  of  the  question  without 
statutory  authority  therefor. 

Fayerweather  v.  Ritch,  supra. 

The  Federal  court  had  a  right  to  pass 
upon  this  question,  on  its  own  judgment, 
under  the  circumstances,  as  to  the  inter- 
pretation of  the  statute. 

Merritt  v.  American  Steel  Barge  Co.  24 

C.  C.  A.  580,  49  U.  S.  App.  85,  79  Fed.  228; 
Northrop  v.  Columbian  Lumber  Co.  108  C. 
C.  A.  640,  186  Fed.  770;  Burgess  v.  Selig- 
man,  l07  U.  S.  20,  27  L.  ed.  359,  2  Sup.  Ct. 
Rep.  10;  Hardin  v.  Jordan,  140  U.  S.  371, 
35  L.  ed.  428,  11  Sup.  Ct.  Rep.  808,  838; 
Carroll  County  v.  Smith,  111  U.  S.  556,  28 
L.  ed.  517,  4  Sup.  Ct.  Rep.  539;  Loeb  v. 
Columbia  Twp.  179  U.  S.  472,  45  L.  ed.  280, 
21  Sup.  Ct.  Rep.  174;  Great  Southern  Fire 
•t  Jj.  ed. 


Proof  Hotel  y.  Jones,  198  U.  S.  582,  4S 
L.  ed.  778,  24  Sup.  Ct.  Rep.  576;  Hunt  v. 
New  Yorlc  Cotton  Exch.  205  U.  S.  322,  51 
L.  ed.  821,  27  Sup.  Ct  Rep.  529;  Kuhn  v. 
Fairmont  Coal  Co.  215  U.  S.  349,  54  L.  ad. 
228,  30  Sup.  Ct.  Rep.  140;  ^tna  L.  Ins.  Co. 
V.  Moore,  231  U.  S.  544,  58  L.  ed.  356,  84 
Sup.  Ct.  Rep.  186. 

The  decision  in  the  McPhail  Case,  if  in 
any  way  treated  as  a  decision  as  to  "money 
and  credits,"  does  what  this  court  said  it 
could  not  itself  do. 

James  v.  Bowman,  190  U.  S.  127-141,  47 
L.  ed.  978-983,  23  Sup.  Ct.  Rep.  678. 

It  was  not  within  the  jurisdictional  proy- 
inoe  of  Minnesota  to  assess  those  beyond 
its  border. 

Union  Refrigerator  Transit  Co.  y.  Ken- 
tucky, 199  U.  S.  194,  50  L.  ed.  150,  26  Sup. 
Ct.  Rep.  36,  4  Ann.  Oas.  493;  Louisville  k 
J.  Ferry  Co.  y.  Kentucky,  188  U.  8.  385,  47 
L.  ed.  513,  23  Sup.  Ct  Rep.  463;  Delaware 
L.  k  W.  R.  Co.  y.  Pennsylvania,  198  U.  & 
342,  49  L.  ed.  1077,  25  Sup.  Ct  Rep.  669; 
Joslyn  y.  St  Paul  Distilling  Co.  44  Minn. 
188,  46  N.  W.  337;  State  y.  Nelson,  107 
Minn.  319,  119  N.  W.  1058. 

State  y.  McPhail  does  not  apply  the  facta 
of  this  case  to  the  rule  of  equality. 

SUte  y.  Nelflon,  107  Minn.  323, 119  N.  W. 
1058;  Delaware,  L.  &  W.  R.  Co.  y.  Penn^I- 
vanU,  198  U.  S.  842,  49  L.  ed.  1077,  25  Sup. 
Ct.  R^.  669; ^Fayerweather  y.  Ritch,  106 
U.  S.  276,  49  L.  ed.  193,  25  Sup.  Ct.  Rep.  58. 

Both  the  Minnesota  Constitution  and  the 
14th  Amendment  to  the  Federal  Constitu- 
tion prohibit  an  intentional  and  deliberate 
discrimination  in  tazatioii  that  Is  substan- 
tially unfair. 

State  ex  rel.  Mudeking  v.  Parr,  109  Minn. 
147,  134  Am.  St  Rep.  759,  123  N.  W.  408; 
State  y.  Cudahy  Packing  Co.  103  Minn. 
419,  115  N.  W.  645,  1069;  Central  R.  Co.  y. 
Jersey  City,  199  Fed.  237 ;  Detroit,  G.  H.  k 
M.  R.  Co.  V.  Fuller,  205  Fed.  86;  Ritter- 
busch  y.  Atchison,  T.  &  S.  F.  R.  Co.  117 
C.  C.  A.  154,  198  Fed.  46;  Lacy  y.  Me- 
Cafferty,  131  0.  C.  A.  494,  215  Fed.  352; 
Atchison,  T.  ft  S.  F.  R.  Co.  v.  Sullivan,  97 
C.  C.  A.  1,  173  Fed.  461;  PaUman  Co.  y. 
Knott,  235  U.  S.  23,  59  L.  ed.  105,  35  Sup. 
Ct  Rep.  2;  Choctaw,  O.  k  G.  R.  Co.  v.  Har- 
rison, 235  U.  S.  292,  298,  59  L.  ed.  234,  237, 
35  Sup.  Ct  R^.  27 ;  Galveston,  H.  ft  8.  A. 
R.  Co.  v.  Texas,  210  U.  S.  217-227,  52  L.  ed. 
1031-1037,  28  Sup.  Ct  Rep.  638;  37  Am. 
Law  Rev.  p.  654;  Pelton  y.  Commercial 
Nat  Bank,  101  U.  S.  143,  25  L.  ed.  901; 
Cummings  v.  Mwchants*  Nat  Bank,  101 
U.  S.  153,  25  L.  ed.  903;  Upshur  County 
v.  Rich,  135  U.  S.  467,  473,  476,  94  L. 
ed.  196,  198,  199,  10  Sop.  Ct  Rq>.  651; 
Fargo  V.  Hart,  193  U.  S.  490,  48  L.  ed. 
761,   24   Sup.    Ct    Rep.   498;    Coulter   t. 


185,  186 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


Louisville  k  N.  R.  Co.  196  U.  S.  509,  49 
L.  ed.  615,  25  Sup.  Ct.  Rep.  342;  Ray- 
mond ▼.  Chicago  Union  Traction  Co.  207 
U.  S.  20,  ^2  L.  ed.  78,  28  Sup.  Ot.  Rep.  7, 
12  Ann.  Cas.  757 ;  Chicago,  B.  t  Q.  R.  Co.  v. 
Chicago,  166  U.  S.  226,  41  L.  ed.  979,  17 
Sup.  Ct.  Rep.  581;  First  Nat.  Bank  v.  Al- 
bright, 208  U.  S.  548,  52  L.  ed.  614,  28 
Sup.  Ct.  Rep.  349;  Clement  Nat.  Bank  v. 
Vermont,  231  U.  S.  120,  58  L.  ed.  147,  34 
Sup.  Ct.  Rep.  31 ;  Southern  R.  Co.  ▼.  Greene, 
216  U.  S.  400,  54  L.  ed.  536,  30  Sup.  Ct. 
Rep.  287,  17  Ann.  Oas.  1247. 

Other  courts  have  universally  refused 
taxation  of  such  memberships. 

San  Francisco  v.  Anderson,  103  Cal.  69, 
42  Am.  St.  Rep.  98,  36  Pac.  1034;  People 
ex  rel.  Lammon  v.  Feitner,  167  N.  Y.  1,  82 
Am.  St.  Rep.  698,  60  N.  E.  265 ;  White  v. 
Brownell,  2  Daly,  329;  Baltimore  v.  John- 
son, 96  Md.  737,  61  L.R. A.  568,  54  Atl.  646 ; 
Arapahoe  County  v.  Rocky  Mountain  News 
Printing  Co.  15  Colo.  App.  189,  61  Pac.  494. 

Mr.  Lyndon  A.  Smith,  Attorney  General 
of  Minnesota,  and  Mr.  William  J.  Steven- 
son, argued  the  cause,  and,  with  Mr.  John 
M.  Rees,  filed  a  brief  for  defendants  in  er- 
ror: 

There  is  ample  statutory  authority  for 
taxing  this  class  of  property  in  Minnesota, 
and  the  state  statutes  have  been  interpreted 
by  the  highest  court  in  the  state  to  include 
such  property.  This  raises  no  Federal  ques- 
tion. 

Columbus  Southern  R.  Co.  v.  Wright,  151 
U.  S.  470,  38  L.  ed.  238,  14  Sup.  Ct.  Rep. 
390;  Games  v.  Stiles,  14  Pet.  322,  10  L.  ed. 
476;  Erie  R.  Co.  v.  Pennsylvania.  21  Wall. 
492,  497,  22  L.  ed.  595,  598;  Bailey  v. 
Magwire,  22  Wall.  215,  22  L.  ed.  850; 
Brown-Forman  Go.  v.  Kentucky,  217  U.  S. 
563,  54  I.,  ed.  883,  30  Sup.  Ct.  Rep.  578 ; 
Adams  v.  Nashville,  95  U.  S.  19,  24  L.  ed. 
369;  Lane  County  v.  Oregon,  7  Wall.  71, 
19  L.  ed.  101;  Pullman's  Palace  Car 
Co.  V.  Pennsylvania,  141  U.  S.  18,  35  L. 
ed.  613,  3  Inters.  Com.  Rep.  595,  11  Sup. 
Ct.  Rep.  876;  Central  P.  R.  Co.  v.  Nevada, 
162  U.  S.  512,  40  L.  ed.  1057,  16  Sup.  Ct. 
Rep.  885;  Stryker  y.  Goodnow  (Stryker  v. 
Crane)  123  U.  S.  527,  538,  31  L.  ed.  194, 
199,  8  Sup.  Ot.  Rep.  203;  Winona  k  St.  P. 
Land  Co.  y.  MinnesoU,  159  U.  S.  526,  40 
L.  ed.  247,  16  Sup.  Ct.  Rep.  83;  United 
States  Exp.  Co.  v.  Minnesota,  223  U.  S.  335, 
56  L.  ed.  459,  32  Sup.  Ct.  Rep.  211;  Horn 
Silver  Min.  Co.  v.  New  York,  143  U.  S.  305, 
36  L.  ed.  164,  4  Inters.  Com.  Rep.  57,  12 
Sup.  Ct.  Rep.  403. 

The  claim  that  the  local  assessor  failed 
to  list  other  like  property  does  not  show 
that   plaintiffs    in   error   were    prejudiced 
thereby. 
59t 


First  Nat.  Bank  v.  Ayers,  160  U.  S.  660, 
40  L.  ed.  573,  16  Sup.  Ct.  Rep.  412. 

The  claim  of  double  taxation  amounts 
at  most  only  to  overvaluation,  and  is  imma- 
terial here. 

Bank  of  Oommerce  v.  Tennessee,  161  U.  S. 
134,  40  L.  ed.  645,  16  Sup.  Ct.  R^.  456; 
Van  Allen  v.  Assessors  (Churchill  v.  Utica) 
3  WaD.  573,  18  L.  ed.  229;  New  York  v. 
Tax  k  A.  Comrs.  4  Wall.  244,  18  L.  ed.  344; 
Davidson  v.  New  Orleans,  96  U.  S.  97,  24 
L.  ed.  616;  State  v.  Jones,  24  Minn.  251; 
State  V.  Rand,  39  Minn.  502,  40  N.  W.  835. 

The  residence  of  plaintiffs  in  error  out- 
side the  taxing  district  or  the  state  does  not 
of  itself  show  that  in  this  action  there  has 
been  any  depriving  of  such  parties  of  a 
Federal  right. 

Columbus  Southern  R.  Co.  v.  Wright,  151 
U.  S.  470,  481,  483,  38  L.  ed.  238,  243,  244, 
14  Sup.  Ct.  Rep.  396;  Gallup  v.  Schmidt, 
183  U.  S.  300,  305,  46  L.  ed.  207,  212,  22 
Sup.  Ct.  Rep.  162;  New  York  ex  rel.  New 
York  C.  &  H.  R.  R.  Co.  v.  Miller,  202  U.  S. 
584,  50  L.  ed.  1155,  26  Sup.  Ot.  Rep.  714; 
Metropolitan  L.  Ins.  Co.  v.  New  Orleans, 
205  U.  S.  305,  51  L.  ed.  853,  27  Sup.  Ct.  Rep. 
499;  Corry  v.  Baltimore,  196  U.  S.  466,  49 
L.  ed.  556,  25  Sup.  Ct.  Rep.  297 ;  Savings  k 
L.  Soc.  V.  Multnomah  County,  160  U  S.  421, 
428,  42  L.  ed.  803,  805,  18  Sup.  Ct.  Rep. 
392. 

Mr.  Justice  Hnghes  delivered  the  opin- 
ion of  the  court: 

This  is  a  suit  in  equity  to  cancel  certain 
assessments  for  the  year  1912,  and  to  re- 
strain the  collection  of  taxes  imposed  ac- 
cordingly upon  the  plaintiffs  and  others  in 
like  case  with  respect  to  their  membershipB 
in  the  Chamber  of  Commerce  of  the  city  of 
Minneapolis.  There  were  three  groups  al- 
leged to  be  represented  by  the  respi?ctive 
plaintiffs:  One,  of  members  residing  in 
Minneapolis;  another,  of  those  residing 
within  the  state,  but  outside  that  city;  and 
a  third,  of  citizens  and  residents  of  other 
states.  The  complaint,  among  other  things, 
averred  in  substance  that  the  Chamber  of 
Commerce  was  incorporated  under  the  laws 
of  Minnesota;  that  it  had  no  capital  stock 
and  transacted  no  business  for  profit;  that 
it  furnished  buildings  and  equipment  for 
its  members,  who,  under  its  rules,  transact- 
ed business  with  eacli  other  (for  themselves 
and  their  customers)  upon  the  trading  floor 
which  was  in  fact  a  grain  exchange;  that 
the  property  of  the  corporation  had  been 
fully  taxed;  that  the  memberships,  in  case 
of  winding  up,  would  have  actually  no  value 
[186]  above  the  assets  so  taxed;  that  it  had 
been  the  practical  construction  of  the  tax 
laws  of  the  state  that  such  memberships  were 
not  taxable;  that  the  assessments  in  question 

240  U.  S. 


1015. 


ROGERS  T.  HENNEPIN. 


186-188 


had  been  laid  under  the  head  of  "Moneys 
and  Credits,"  and  that  they  were  excessive; 
that  memberships  in  other  associations  were 
not  taxed  ''although  standing  in  a  similar 
position;'*  that  the  members  of  the  Chamber 
of  Commerce  were  "unlawfully  and  prejudi- 
cially" discriminated  against  "by  unequally 
assessing  them,"  and  that  their  property  was 
taken  ^Srithout  due  process  of  law,  contrary 
to  the  state  and  Federal  Constitutions;*'  that, 
unless  restrained,  the  attempt  to  enforce  the 
tax  would  result  in  a  multiplicity  of  suits; 
that  in  the  case  of  members  residing  outside 
of  the  city  of  Minneapolis,  the  certificates 
of  membership  were  "kept  at  their  re- 
spective residences"  and  such  members  did 
not  "operate"  upon  the  exchange  personal- 
ly except  "at  rare  intervals,"  and  that  their 
use  of  such  memberships  was  practically 
limited  to  benefits  obtained  "from  having 
other  members  buy  or  sell  grain  for  them  as 
commission  merchants"  at  one  half  the 
"regular  commission"  by  reason  of  "a 
privilege  extended  to  the  members  under  the 
rules." 

The  defendants  demurred  to  the  complaint 
upon  the  ground  that  it  did  not  state  facts 
sufficient  to  constitute  a  cause  of  action. 
The  trial  court  denied  a  motion  for  tempo- 
rary injunction  and  sustained  the  demurrer, 
and  thereupon  judgment  was  entered  in 
favor  of  the  defendants.  The  plaintiffs  ap- 
pealed to  the  supreme  court  of  the  state,  as- 
signing as  error  the  holding  of  the  trial 
court  that  the  assessments  "did  not  deny 
to  the  several  members  in  the  respective 
classes  the  equal  protection  of  the  laws"  and 
did  not  constitute  a  taking  of  property 
"without  due  process  of  law  and  without 
compensation,"  contrary  to  the  Federal 
Constitution.  The  latter  objection  was 
stated  in  various  forms,  specific  complaint 
being  made  of  the  assessment  of  those  mem- 
bers who  were  said  to  be  outside  the  [  187] 
jurisdiction  of  the  taxing  officers.  Another 
appeal  was  then  pending  in  the  same  court  in 
the  case  of  State  v.  McPhail,  124  Minn.  398, 
50  L.RJ^.(N.S.)  265,  146  N.  W.  108,  Ann. 
Cas.  1916C,  538,  relating  to  the  taxation  of 
memberships  in  the  Board  of  Trade  of  Du- 
luth,  and,  by  stipulation,  the  appeals  were 
heard  together.  In  the  Duluth  Case,  the 
supreme  court  held  thtft  the  membership 
was  taxable  tmder  the  statutes  of  the  state, 
and,  further,  sustained  the  tax  there  laid 
as  against  contentions  under  the  due  process 
and  equal  protection  clauses  of  the  14th 
Amendment.  The  court  said:  "We  do  not 
sustain  the  claims  that  the  taxation  of 
memberships  in  a  board  of  trade  or  stock 
exchange  would  violate  provisions  of  the 
Federal  or  state  Constitution.  .  .  .  We 
see  no  improper  classification  here,  nor  any 
bck  of  equality  or  uniformity.  Nor  would  it 
•0  Jj.  ed. 


be  double  taxation  The  members  of  the 
board  are  not  required  to  pay  taxes  on  the 
physical  and  tangible  property  of  the  board, 
nor  does  the  board  pay  taxes  upon  the  in- 
tangible rights  which  constitute '  the  value 
of  a  membership.  And  we  hold  that  pro- 
ceedings to  tax  such  a  membership  do  not 
deprive  the  member  of  his  property  without 
due  process  of  law,  take  property  for  public 
use  without  just  compensation,  or  deny  such 
member  the  equal  protection  of  the  laws,  in 
violation  of  familiar  provisions  of  the  Fed- 
eral Constitution  and  Amendments."  State 
V.  McPhail,  supra. 

At  the  same  time,  the  decision  in  the 
instant  case  was  rendered  with  an  opinion 
per  curiam  in  which,  after  a  summary  state- 
ment of  the  nature  of  the  case,  the  court 
ruled  as  follows:  "The  case  was  submitted 
on  briefs  in  this  court  with  State  v.  Mc- 
Phail. The  decision  in  that  case,  filed  here- 
with, controls  this.  Judgment  affirmed." 
124  Minn.  539,  145  N.  W.  112.  And  this 
writ  of  error  has  been  sued  out. 

The  defendants  in  error  insist  that  the  de- 
cision of  the  state  court  involved  no  Federal 
question;  that  the  suit  was  for  injunction 
and  that  the  plaintiffs  had  an  adequate 
[188]  remedy  at  law.  They  invoke  the  fa- 
miliar rule  that  when  the  decision  of  the 
state  court  rests  upon  an  independent  or  non- 
Federal  ground,  adequate  to  support  it,  this 
court  has  no  jurisdiction.  Hammond  v. 
Johnston,  142  U.  8.  73,  78,  35  L.  ed.  941, 
942,  12  Sup.  Ct.  Rep.  141 ;  Qaar,  S.  k  Co.  v. 
Shannon,  223  U.  S.  468,  470,  66  L.  ed.  510. 
512,  32  Sup.  Ct.  Rep.  236.  But  the  state 
court,  which  alone  determines  local  ques- 
tions of  procedure,  did  not  deny  relief  be- 
cause an  injunction  was  sought  or  because 
it  was  considered  that  under  the  state  law 
another  remedy  was  appropriate.  It  said 
nothing  whatever  as  to  the  form  of  remedy, 
or  as  to  the  right  to  proceed  in  equity,  but 
considered  and  decided  the  case  on  the 
merits,  including  the  Federal  questions. 
No  other  conclusion  can  be  drawn  from  the 
fact  that  the  sole  reason  for  the  decision  is 
found  in  the  reference  to  State  v.  McPhail 
as  authority, — a  case  in  which  no  pro- 
cedural question  was  involved.  There,  the 
action  was  brought  by  the  state  itself  to 
recover  the  tax,  and  the  decision  was  direct- 
ly and  exclusively  upon  the  validity  of  the 
tax,  it  being  sustained  first,  as  one  author- 
ized by  the  state  law,  and,  then,  as  not  re- 
pugnant to  the  Federal  Constitution.  The 
fact  that  there  were  some  objections  to  the 
constitutional  validity  of  the  tax  in  the 
present  case  that  were  not  urged  in  the 
McPhail  Case  does  not  affect  the  matter. 
They  were  all  grounds  for  the  contention 
that  the  tax  denied  the  equal  protection  of 
the  laws  and  took  property  without  due 


18»-190 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Thk, 


process  of  law.  That  was  the  ultimate  con- 
tention which  was  overruled  with  respect  to 
the  tax  in  the  McPhail  Case,  and  the  al- 
lusion to  that  decision  as  "controlling" 
plainly  meant  that  the  court  thought  that 
all  the  reasons  urged  for  a  different  view 
were  without  merit,  and  that  the  present 
tax  did  not  violate  the  14th  Amendment. 
It  is  well  settled  that  where  the  state  court 
does  not  decide  against  the  plaintiff  in  er- 
ror upon  an  independent  state  ground,  but, 
deeming  the  Federal  question  to  be  before  it, 
actually  entertains  it  and  decides  it  adverse- 
ly to  the  Federal  right  asserted,  this  court 
has  [180]  jurisdiction  to  review  the  judg- 
ment, assuming  it  to  be  a  final  judgment,  as 
it  is  here.  Hancock  Nat.  Bank  v.  Farnum, 
176  U.  S.  640,  642,  44  L.  ed.  619,  620, 20  Sup. 
Ct.  Rep.  506 ;  San  Jos^  Land  k  Water  Co.  v. 
San  Jose  Ranch  Co.  189  U.  S.  177,  179,  180, 
47  L.  ed.  766,  766,  768,  23  Sup.  Ct.  Rep.  487 ; 
American  Exp.  Co.  v.  Mullins,  212  U.  S.  311, 
313,  53  L.  ed.  525,  526,  29  Sup.  Ct.  Rep.  381, 
15  Ann.  Cas.  536;  Atchison,  T.  k  S.  F.  R. 
Co.  V.  Sowers,  213  U.  S.  55,  63,  53  L.  ed. 
695,  698,  29  Sup.  Ct.  Rep.  397;  Miedreich 
▼.  Lauenstein,  232  U.  S.  236,  243,  58  L.  ed. 
584,  589,  34  Sup.  Ct.  Rep.  309 ;  North  Caro- 
lina R.  Co.  V.  Zachary,  232  U.  S.  248,  257, 
58  L.  ed.  591,  595,  34  Sup.  Ct.  Rep.  305,  9 
N.  C.  C.  A.  109,  Ann.  Cas.  1914C,  159;  Carl- 
son V.  Washington,  234  U.  S.  103,  106,  58 
L.  ed.  1237,  1238,  34  Sup.  Ct.  Rep.  717; 
Mallinckrodt  Chemical  Works  v.  Missouri, 
238  U.  S.  41,  49,  59  L.  ed.  1192,  1195,  35 
Sup.  Ct.  Rep.  671. 

It  is  not  to  be  doubted — giving  full  effect 
to  all  the  allegations  of  the  complaint — 
that  the  memberships,  despite  the  restric- 
tions of  the  rules,  were  property.  See  Hyde 
▼.  Woods,  94  U.  S.  523,  525,  24  L.  ed.  264, 
265;  Sparhawk  v.  Yerkes,  142  U.  S.  1,  12, 
36  L.  ed.  915,  917,  12  Sup.  Ct.  Rep.  104; 
Page  V.  Edmunds,  187  U.  S.  596,  604,  47  L. 
ed.  318,  322,  23  Sup.  Ct.  Rep.  200.  As  was 
said  by  the  supreme  court  of  the  state  with 
respect  to  memberships  deemed  to  be  essen- 
tially similar:  "A  membership  has  a  use 
value  and  a  buying  and  selling  or  market 
value.  It  is  bought  and  sold.  .  .  .  There 
Is  a  lien  upon  it  for  balances  due  membera 
...  It  passes  by  will  or  descent  and  by 
Insolvency  or  bankruptcy.  .  .  .  It  is  true 
that  there  are  certain  restrictions  in  the 
ownership  and  use  of  a  membership.  These 
may  increase  or  decrease  its  value,  probably 
In  the  case  of  a  board  of  trade  membership 
greatly  enhance  it.  They  do  not  prevent  its 
being  property."  124  Minn.  p.  401.  Of 
course,  there  id  nothing  in  the  Federal  Con- 
stitution which  prevents  the  memberships 
here  involved  from  being  taxed,  and  the 
question  whether  they  were  in  fact  taxable 
under  the  statutes  of  the  state  was  a  matter 
£fPS 


of  local  law  with  which  we  are  not  eon- 
cemed.  It  was  the  province  of  the  stata 
court  to  determine  what  the  terms  of  tht 
taxing  statute  authorized,  and  it  is  for  this 
court  to  say  whether,  in  view  of  the  opera- 
tion of  the  statute,  as  thus  defined,  it  over- 
rides the  Federal  right  which  is  claimed. 
Clemait  Nat.  Bank  v.  Vermont  231  U.  8. 
130,  134,  58  L.  ed.  153,  156,  34  Sup.  Ct  Rep. 
31.  It  is  insisted  that  there  was  no 
l^islative  [100]  authority  for  an  offi- 
cial listing  of  this  kind  of  property, 
or  for  an  official  estimate  of  its 
value,  and  hence  that  there  is  no  valid 
taxing  scheme.  But  it  is  manifest  that  the 
state  court,  in  holding  the  memberships  to 
be  embraced  within  the  description  of  prop- 
erty subject  to  taxation  under  the  statutes, 
also  held  that  the  statutory  scheme,  in- 
cluding the  provision  for  listing  and  for 
official  valuation,  did  apply  to  these  mem- 
berships. See  124  Minn.  pp.  404-400. 
Complaint  is  made  that  in  the  present  caae 
the  memberships  were  assessed  under  tlie 
head  of  "Moneys  and  Credits."  But  this 
is  an  administrative  matter  which  docs  not 
touch  the  fundamentals  contemplated  by 
the  14th  Amendment.  If  there  was  any 
error  or  irregularity  in  tlie  particular  ap- 
plication of  the  state  statute  in  the  case 
of  the  assessments  in  question,  it  was  sub- 
ject to  correction  according  to  the  local 
practice;  and  the  argument  that  the  stat- 
ute is  defective  because  there  is  no  legis- 
lative authority  for  listing  and  estimate 
we  think  is  directly  opposed  to  the  con- 
struction placed  upon  the  statute  by  the 
state  court.  It  is  also  apparent  that  there 
is  no  merit  in  the  objection  that  there  waa 
a  violation  of  the  Federal  Constitution 
through  what  is  called  double  taxation. 
The  membership*  as  property,  was  distinct 
from  the  assets  of  the  corporation.  Van 
Allen  V.  Assessors  (Churchill  v.  Utica)  3 
Wall.  573,  584,  18  L.  ed.  229,  234;  Farring- 
ton  V.  Tennessee,  95  U.  S.  679,  087,  24  L. 
ed.  558,  560;  Davidson  v.  New  Orleans,  96 
U.  S.  97,  106,  24  L.  ed.  616,  620;  Bank  of 
Commerce  v.  Tennessee,  161  U.  S.  134,  146, 
40  L.  ed.  645,  649,  16  Sup.  Ct  Rep.  456;  and 
see  St.  Louis  Southwestern  R.  Co.  v.  Ar- 
kansas, 235  U.  S.  350,  367,  368,  69  L.  ed. 
265,  273,  274,  35  Sup.  Ct.  Rep.  99.  The 
correct  valuation  of  the  membership,  in 
view  of  all  relevant  facts,  was  a  matter 
for  the  taxing  officials,  and  we  do  not  alt 
to  review  their  judgment  The  complaint 
makes  no  case  whatever  of  a  denial  by  tbe 
statutory  scheme  of  proper  opportunity  for 
the  hearing  of  grievances  where  the  esti- 
mate is  regarded  by  the  members  as  extea 
sive.  See  New  York  ex  rel.  Brookl3m  City  R. 
Co.  V.  New  York  State  Tax  Comrs.  199  U. 
S.  48,  51,  52,  50  L.  ed«  79,  84,  85,  26  Sup. 

940  V.  8. 


1015. 


UNITED  STATES  t.  MORRISON. 


190-192 


Ct  Rep.  71S;  Oitaii  lot.  Go.  ▼.  Board  of 
AmtMon,  221  [101]  U.  S.  358, 860, 56  L.  ed. 
769,  771,  81  Sup.  Ct  Rep.  554.  On  the  eon- 
tnij,  the  complaint  alleges  that  the  plain- 
Utt  duly  appeared  before  the  Board  of  Equal- 
iation  of  the  dtj  of  Minneapolia  and  the 
Minnesota  Tax  Commission,  acting  as  the 
State  Board  of  Equalization,  and  on  behalf 
•of  himself  and  other  members  asked  to 
haye  the  assessment  canceled,  or,  if  not 
canceled,  to  have  it  reduced  to  what  was 
asserted  to  be  a  fairer  valuation,  and  that 
the  boards  were  each  apparently  inclined 
to  grant  the  application;  but,  as  it  would 
<ccm,  withheld  action  pending  the  decision 
oi  tibe  eourts  as  to  the  taxability  of  the 
memberships. 

There  is  the  further  contention  with  re- 
spect to  the  authority  of  the  state  to  tax 
the  memberships  owned  by  citizens  of  oth- 
«r  states.  It  is  urged  that  the  member- 
ships are  intangible  rights  held  by  the 
member  at  his  domicil.  But  it  sufficiently 
appears  from  the  allegations  that  the  mem- 
t>erships  represented  rights  and  privileges 
which  were  exercised  in  transactions  at  the 
•exchange  in  the  city  of  Minneapolis,  and 
we  are  of  the  opinion,  applying  a  principle 
which  has  had  recognition  with  respect  to 
•credits  in  favor  of  nonresidents  arising 
from  business  within  the  state,  and  in  the 
•case  of  shares  of  stock  of  domestic  corpora- 
iionBy  that  it  was  competent  for  the  state 
to  fix  the  situs  of  the  memberships  for  the 
purpose  of  taxation,  whether  they  were 
held  by  residents  or  nonresidents,  at  the 
place  within  the  state  where  the  exchange 
was  located.  Tappan  v.  Merchants'  Nat. 
Bank,  19  Wall  400,  499,  22  L.  ed.  189,  193; 
New  Orleans  v.  Stempel,  175  U.  8.  309,  319, 
44  L.  ed.  174, 180,  20  Sup.  Ct.  Rep.  110;  State 
Assessors  v.  Comptoir  National  IVEscompte, 
191  U.  S.  388,  403,  48  L.  ed.  232,  238,  24 
Sup.  Ct.  Rep.  109;  Corry  v.  Baltimore,  196 
TJ.  S.  466,  474,  49  L.  ed.  566,  661,  25  Sup. 
Ot.  Rep.  297;  Metropolitan  L.  Ins.  Co.  v. 
New  Orleans,  205  U.  8.  395,  402,  51  L.  ed. 
853,  856,  27  Sup.  Ct.  Rep.  499;  Liverpool 
•4  L.  &  G.  Ins.  Co.  v.  Board  of  Assessors, 
221  U.  S.  346,  354,  355,  65  L.  ed.  762,  767, 
768,  L.R.A.1915C,  903,  81  Sup.  Ct.  Rep. 
.660;  Hawley  v.  Maiden,  232  U.  S.  1,  12, 
5t  L.  ed.  477,  482,  84  Sup.  Ct.  Rep.  201. 

With  respect  to  discrimination,  there  is 
no  tenable  objection  because  of  the  exemp- 
tion from  taxation  (if  they  were  exempt) 
•of  the  various  organizations  to  which  the 
I^aintiffs  in 'error  refer, — such  as  the  "Asso- 
•eiated  Press,  [108]  lodges,  fraternal  orders, 
churches,  etc."  The  description  itself  sug- 
gests manifest  distinctions  whieh  the  state 
is  entitled  to  observe  in  its  taxing  policy, 
despite  the  general  allegation  that  these  as- 
sociations stand  '^  a  similar  position.'' 
40  Jj.  ed. 


The  state  has  a  broad  diaeretloB  as  to  tax 
exemptions  (Bell's  Oap  R.  Co.  v.  Pennsyl- 
vania, 184  U.  S.  232,  237,  88  L.  ed.  892, 
895,  10  Sup.  Ct.  Rep.  633),  and  the  aver- 
ments of  the  complaint  are  very  far  from 
showing  any  basis  for  a  eharge  of  viola- 
tion of  the  14th  Amendment  by  unwarrant- 
able discrimination.  And,  finally,  with  re- 
spect to  the  argument  that  the  plaintiffs  in 
error  were  denied  due  process  of  law  be- 
cause the  state  court  decided  the  case  upon 
the  authority  of  the  McPhail  Case,  without 
referring  to  the  asserted  distinctions  be- 
tween the  two  cases,  it  is  enough  to  say 
that  the  cause  was  heard  and  determined, 
and,  viewing  the  judgment  as  passing  upon 
all  the  Federal  questions  raised,  we  find  no 
error. 
Judgment  affirmed. 

Mr.  Justice  McReynolds  is  of  opinion 
that  the  writ  of  error  should  be  dismissed. 


UNITED  STATES,  Appt, 

V. 

W.  J.  MORRISON,  Finley  Morrison,  and 
the  Sligh  Furniture  Company. 

(See  S.  C.  Reporter's  ed.  192-214.) 

Public  lands  —  school  grant  —  when 
title  passes  —  necessity  of  survey. 

1.  Title  did  not  pass  to  the  state  of 
Oregon  under  the  provision  of  the  act  of 
February  14,  1869  (11  SUt.  at  L.  383, 
chap.  33,  Comp.  SUt  1913,  g  6799  (42)), 
§  4,  admitting  Oregon  as  a  state,  that  sec- 
tions 16  and  36  in  each  township,  or  eqtiiva- 
lent  lands  if  such  sections  have  been  sold 
or  otherwise  disposed  of,  ''shall  be  granted" 
to  said  state  for  the  use  of  the  schools,  until 
the  school  sections  were  defined  by  a  com- 
pleted survey,  and  until  that  time  Congress 
was  at  liberty  to  dispose  of  the  land;  its 
obligation  in  that  event  being  properly  to 
compensate  the  state  for  whatever  deficien- 
cies resulted. 

[For  other  cases,  see  Public  Lands,  I.  e»  8, 
in  Digest  Sup.  Ct.  1908.] 

Public  lands  «. school  grant  «  oontroil 
of  Congress. 

2.  No  limitation  upon  the  authority  of 
Congress  to  dispose  of  public  lands  before 
title  thereto  paissed  to  the  state,  upon  a 
completed  survey,  under  the  act  of  Febniary 
14, 1859  (11  Stat,  at  L.  383,  chap.  33,  Comp. 
SUt.  1913,  S  6799  (42)),  g  4,  admittimr 
Oregon  as  a  state,  was  imposed  by  U.  S. 
Rev.  SUt.  SS  2275,  2276,  Comp.  SUt  1913, 
SS  4860,  4861,  as  amended  by  the  act  of  Feb- 
ruary 28,  1891  (26  SUt.  at  L.  796,  chap. 
884,  Comp  SUt.  1918,  §S  4860,  4861),  pro- 
tecting settlements  when  made  "before  the 
survey  of  the  lands  in  the  field." 

[For  other  cases,  see  Pnblie  Lands,  L  e,  8, 
in  Digest  Sup.  Ct.  1908.] 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebu, 


Pnbllc  lands  —  school  grant  «  when 
■oTTey  is  complete. 

3.  The  suryey  of  the  lands  embraced  in 
the  school  grant  made  by  the  act  of  Febru- 
arv  14,  1859  (11  Stat,  at  L.  383,  chap.  33, 
Comp.  SUt.  1913,  S  6799  (42)),  g  4,  ad- 
mitting Oregon  as  a  state,  did  not  become 
a  completed  administrative  act  so  as  to 
prevent  Congress  from  otherwise  disposing 
of  such  lands,  until  such  survey  was  finally 
accepted  by  the  Commissioner  of  the  Gen- 
eral Land  Office,  although  such  survey, 
after  prolonged  examination,  was  finally 
approved  by  him  without  modification. 
[For  other  cases,  see  PabUc  Lands,  I.  c.  8, 

in  Digest  Sap.  Ct  1908.] 

Public  lands  ^  survey  ^  official  ap- 
proval. 

4.  The  descriptions  by  townships  of 
lands  withdrawn  oy  the  Secretary  of  the 
Interior  for  forestry  purposes,  and  the  ref- 
erence in  the  official  correspondence  in  con- 
nection with  such  withdrawal  to  a  diagram 
showing  townships  and  sections,  does  not 
constitute  an  official  approval  of  the  survey 
of  such  lands. 

[For  other  cases,  see  Public  Lands,  I.  e,  4, 
in  Digest  Sup.   Ct.   1908.] 

Public  lands  —   forest  reserve  ^  ex- 
cepted lands. 

5.  The  exception  in  the  President's 
proclamation  of  January  26,  1907  (34  Stat, 
at  L.  3270),  enlarging  the  Cascade  Forest 
Reserve,  "of  all  lands  which  at  this  date 
are  embraced  within  any  withdrawal  or 
reservation  for  anv  use  or  purpose  to  which 
this  reservation  for  forest  uses  is  incon- 
sistent," referred  to  withdrawals  or  reserva- 
tion by  the  government  itself  for  other  and 
inconsistent  uses,  and  was  made  with  a  view 
to  avoiding  confusion  in  governmental  ac- 
tion, not  to  let  in  subsequently  accruing 
claims  of  title  under  school  grants,  as  to 
which  (Congress  had  indicated  its  purpose 
to  make  compensation  for  deficiencies  when 
lands  which  otherwise  would  have  passed 
to  the  state  thereunder  had  been  duly  taken 
for  reservations. 

[For  other  cases,  see  Public  Lands,  I.,  in  Di- 
gest Sup.  Ct.  1018  Sapp.] 

Pnbllc  lands  ^  forest  reserve  —  unsnr- 

veyed  lands. 

6.  Unsurveyed  lands  might  be  reserved 
by  the  President  in  the  exercise  of  his  au- 
thority under  the  acts  of  March  3,  1891 
(26  Stat,  at  L.  1103,  chap.  561,  Comp.  Stat. 
1913,  §  5121),  S  24,  and  June  4,  1897  (30 
Stat,  at  L.  36,  chap.  2),  to  establish  forest 
reservations  on  the  public  domain. 

[For  other  cases,  see  Public  Lands.  I.,  In  Di- 
gest Sup.  Ct.  1013  Sapp.] 

[No.  138.] 

Argued  December  16,  1915.     Decided  Feb- 
ruary 21,  1916. 

APPEAL  from  the  United  States  Circuit 
,  Court  of  Appeals  for  the  Ninth  Circuit 
to  review  a  decree  which  reversed,  with  di* 
rections  to  dismiss  the  bill,  a  decree  of  the 
District  Court  for  the  Distriet  of  Oregon 

0O0 


in  favor  of  the  United  States  in  a  suit  by 
it  to  quiet  title.  Reversed,  and  decree  of 
District  Court  affirmed. 

See  same  case  below,  128  C.  C.  A.  485,  212 
Fed.  29. 

The  facts  are  stated  in  the  opinion. 

Assistant  Attorney  General  Knaebel 
argued  the  cause,  and^  with  Mr.  8.  W.  Wil- 
liams, filed  a  brief  for  appellant: 

The  grant  of  school  lands  made  to  the 
state  of  Oregon  by  the  act  of  February  14, 
1859,  did  not  operate  to  vest  title  in  the 
state  to  any  particular  tract  of  land  until 
the  same  was  surveyed  under  the  authoritj 
of  the  United  States. 

Lessieur  v.  Price,  12  How.  59,  13  L.  ed. 
893;  United  States  v.'  Thomas,  151  U.  8. 
577,  38  L.  ed.  276,  14  Sup.  Ct.  Rep.  426; 
Wisconsin  v.  Hitchcock,  201  U.  S.  202,  ISO 
L.  ed.  727,  26  Sup.  Ct.  Rep.  498;  Heydea- 
feldt  V.  Daney  Gold  &  S.  Min.  Co.  93  U.  8. 
634,  23  L.  ed.  995,  13  Mor.  Min.  Rep.  204; 
Re  Colorado,  6  Land  Dec.  412;  California 
V.  Wright,  24  I^nd  Dec.  54;  South  Dakota 
V.  Riley,  34  Land  Dec.  657;  South  Dakota 
V.  Thomas,  35  Land  Dec.  171. 

Public  lands  of  the  United  States  are  not 
surveyed  until  the  plat  and  field  notes 
thereof  are  approved  by  the  surveyor  gen- 
eral, accepted  by  the  (Commissioner  of  the 
General  Land  Office,  and  filed  in  the  local 
land  office. 

Barnard  v.  Ashley,  18  How.  43,  15  Lw  ed. 
285;  California  v.  Townsend,  2  Cupp's  Pub- 
lic Land  Laws,  1117;  Anderson  v.  Minna- 
sota,  37  Land  Dec  390;  Tubbs  v.  WilhoHk 
138  U.  S.  134,  34  L.  ed.  887,  11  Sup.  Ot 
Rep.  279 ;  Knight  v.  United  Land  Asso.  14S 
U.  S.  161,  35  L.  ed.  974,  12  Sup.  U.  Rep. 
258;  Michigan  Land  h  Lumber  Co.  v.  Rnt^ 
168  U.  S.  689,  42  L.  ed.  591, 18  Sup.  Ct.  Rep. 
208. 

Regulations  of  the  Land  Department  haiPV 
all  the  force  and  effect  of  law.  They  art 
made  in  furtherance  of  the  statutes,  whioli 
cannot  well  be  enforced  without  them. 

Germania  Iron  Co.  v.  James,  32  C.  C.  A. 
348,  61  U.  S.  App.  1,  89  Fed.  811,  46  a  G. 
A.  476,  107  Fed.  597. 

Mr.  Mark  Norris  argued  the  cause,  anda 
with  Mr.  Oscar  E.  Waer,  filed  a  brief  te 
appellee,  the  Sligh  Furniture  Company :« 

The  grant  was  a  grant  tfi  prcssetUi. 

Ham  V.  Missouri,  18  How.  126,  15  L.  ed. 
334 ;  Beecher  v.  Wetherby,  95  U.  8.  617,  §4 
L.  ed.  440;  United  States  v.  Thomas,  lil 
U.  S.  577,  583,  38  L.  ed.  276,  278,  14  8q^ 
Ct.  Rep.  426;  Alabama  v.  Schmidt,  Sit 
U.  8.  168,  58  L.  ed.  555,  34  Sup.  Ct.  Rsp^ 
801 ;  United  States  v.  Tully,  140  Fed.  904 j 
Heydenfeldt  v.  Daney,  Gold  k  S.  Min.  Oib 
93  U.  8.  634,  23  L.  ed.  995,  13  Mor.  M3b. 
Rep.    204;    Minnesota    v.    Hitchcock,    18S 

240  U.  •. 


1915. 


UNITED  STATES  ▼.  MORRISON. 


U.  S.  373»  46  L.  ed.  954»  22  Sup.  Ct  Rep. 
660;  WiBconain  v.  Hitchcock,  201  U.  S.  202, 
60  L.  ed.  727»  26  Sup.  Ct.  Rep.  498;  St. 
Paul  &  P.  R.  Co.  ▼.  Northern  P.  R.  Co.  139 
U.  S.  6,  35  L.  ed.  79,  11  Sup.  Ci  Rep.  389 ; 
United  States  v.  Oregon  &  C.  R.  Co.  176  U. 
S.  28,  44  L.  ed.  358,  20  Sup.  Ct.  Rep.  261; 
Butti  y.  Northern  P.  R.  Co.  119  U.  S.  65, 

30  L.  ed.  330,  7  Sup.  Ct  Rep.  100;  Southern 
P.  R.  Co.  V.  United  States  168  U.  S  1,  42 
L.  ed.  355,  18  Sup.  Ct.  Rep.  18;  United 
States  y.  Southern  P.  R.  Co.  146  U.  S.  570, 
36  L.  ed.  1091,  13  Sup.  Ct.  Rep.  152;  Men- 
otti  y.  DUlon,  167  U.  S.  703,  42  L.  ed.  333, 
17  Sup.  a.  Rep.  946;  Miswuri,  K.  &  T.  R. 
Co.  y.  Cook,  163  U.  S.  491,  41  L.  ed.  239,  16 
Sup.  Ct.  Rep.  1093;  New  York  Indians  y. 
United  SUtes,  170  U.  S.  1,  42  L.  ed.  927,  18 
Sup.  Ct.  Rep.  531 ;  Wright  y.  Roseberry,  121 
U.  S.  488,  501,  30  L.  ed.  1039,  1042,  7  Sup. 
Ct.  Rep.  985;  Tubbs  y.  Wilhoit,  138  U.  a 
134,  136,  34  L.  ed.  887,  888, 11  Sup.  Ct.  Rep 
279;  Rogers  Locomotive  Mach.  Works  y. 
American  Emigrant  Co.  164  U.  8.  559,  570, 
41  L.  ed.  562,  557,  17  Sup.  Ct.  Rep.  188; 
Chandler  v.  Calumet  &  H.  Min.  Co.  149  U.  S. 
79,  91,  37  L.  ed.  657,  661,  13  Sup.  Ct.  Rep. 
798 ;  French  y.  Fyan,  93  U.  S.  169,  23  L.  ed. 
812;  Martin  y.  Marks,  97  U.  S.  345,  24  L. 
ed.  040;  Hannibal  &  St.  J.  R.  Co.  y.  Smith, 
9  Wall.  95,  19  L.  ed.  599;  Rice  y.  Sioux 
aty  Sl  St.  P.  R.  Co.  110  U.  S.  695,  28  L.  ed. 
289,  4  Sup.  Ct.  Rep.  177 ;  Michigan  Land  & 
Lumber  Co.  y.  Rust,  168  U.  S.  589,  591,  42 
L.  ed.  591,  592,  18  Sup.  Ct.  Rep.  208. 

If  the  grant  was  not  in  prct9enii,  title 
yested  when  the  field  survey  was  made. 

Cooper  y.  Roberts,  18  How.  173,  15  L.  ed. 
338;  Hibberd  y.  Slack,  84  Fed.  571. 

If  title  had  not  vested  upon  the  comple- 
tion of  the  field  survey,  it  did  vest  upon  its 
approval  by  the  surveyor  general  of  Ore- 
gon. 

Endlich,  Interpretation  of  Statutes,  ed. 
1888,  §  85;  PlaU  v.  Union  P.  R.  Co.  99  U.  a 
48,  63,  25  L.  ed.  424,  429;  Smith  y.  Town- 
send,  148  U.  S.  490,  494,  37  L.  ed.  533,  634, 
13  Sup.  Ct.  Rep.  634;  Mobile  &  0.  R.  Co.  v. 
Tennessee,  153  U.  8.  486,  602,  88  L.  ed.  793, 
790,  14  Sup.  Ct.  Rep.  968;  Dewey  v.  United 
SUies,  178  U.  S.  510,  520,  44  L.  ed.  1170, 
1174,  20  Sup.  Ct  Rep.  981;  Burfenning  y. 
Chicago,  St  P.  M.  &  O.  R.  Co.  163  U.  8. 
823,  41  L.  ed.  176,  16  Sup.  Ct.  Rep.  1018; 
Uaitad  States  y.  George,  228  U.  8.  14,  67 
L.  ed.  712,  83  Sup.  Ct  Rep.  412;  Daniels  y. 
Wagner,  237  U.  S.  547,  59  L.  ed«  1102, 
LJLA.1016A,  1116,  36  Sup.  Ct  Rep.  740; 
St  Louis  Smelting  k  Ref.  Co.  v.  Kemp,  104 
U.  S.  636,  646,  26  L.  ed.  875,  878,  11  Mor. 
Min.  Rep.  673;  Wright  y.  Roseberry,  121 
U.  S.  48S,  510,  30  L.  ed.  1039,  1048,  7  Sup. 
Ct  Rep.  085;  Doolan  v.  Carr,  125  U.  S.  618, 

31  L.  ed.  844,  8  Sup.  Ot.  Rep.  1228;  Davis 
•0  li. 


y.  Wiebbold,  139  U.  S.  507,  629,  36  L.  ed. 
238,  246,  11  Sup.  Ct.  Rep.  628;  Knight  v. 
United  Land  Asso.  142  U.  S.  161,  35  L.  ed. 
974,  12  Sup.  Ct.  Rep.  258. 

The  official  use  of  the  plat  as  filed  in  the 
General  Land  Office  constituted  an  approval 
of  it,  which  binds  the  United  States. 

Wright  V.  Roseberry,  121  U.  S.  488,  501, 
30  L.  ed.  1039,  1042,  7  Sup.  Ct.  Rep.  985; 
Tubbs  y.  Wilhoit,  138  U.  8.  134,  144,  145, 

34  L.  ed.  887,  890,  891, 11  Sup.  Ct.  Rep.  279; 
Cooper  v.  Roberts,  18  How.  173,  15  L.  ed. 
338. 

Immediately  upon  the  formal  approval  of 
the  survey,  the  statutory  reservation  and 
grant  originally  made  to  Oregon  destroyed 
the  effect  of  the  temporary  withdrawal,  and 
vested  title  in  the  state. 

Burfenning  v.  Chicago,  St.  P.  M.  &  0.  R. 
Co.  163  U.  S.  323,  41  L.  ed.  176,  16  Sup.  a. 
Rep.  1018;  United  States  v.  George,  228  U. 
S.  14,  57  L.  ed.  712,  33  Sup.  a.  Rep.  412; 
Daniels  y.  Wagner,  237  U.  S.  547,  59  L.  ed. 
1102,  L.R.A.1916A,  1116,  35  Sup.  Ct.  Rep. 
740;  St.  Louis  Smelting  &  Ref.  Co.  v.  Kemp, 
104  U.  S.  636,  646,  26  L.  ed.  875,  878,  11 
Mor.  Min.  Rep.  673;  Wright  v.  Roseberry, 
121  U.  S.  488,  519,  30  L.  ed.  1039,  1048,  7 
Sup.  Ct  Rep.  985;  Doolan  v.  Carr,  125  U.  S. 
618,  81  L.  ed.  844,  8  Sup.  Ct.  Rep.  1228; 
Knight  y.  United  Land  Asso.  142  U.  S.  161, 

35  L.  ed.  974,  12  Sup.  Ct.  Rep.  258. 

The  lands  had  not  been  ''sold  or  other- 
wise disposed  of"  when  the  siu'vey  was  for- 
mally approved  on  January  31,  1006,  and 
title  therefore  vested  in  the  state  of  Oregon 
on  that  date,  if  not  before. 

Ham  y.  Missouri,  18  How.  126,  15  L.  ed. 
334;  Conley  v.  State,  85  Ga.  348,  11  S.  £. 
659;  Piatt  v.  Union  P.  R.  Co.  99  U.  S.  48, 
25  L.  ed.  424;  Roberson  v.  State,  100  Ala. 
37,  14  So.  554;  Maxwell  y.  State,  140  Ala. 
131,  37  So.  266. 

The  alleged  executive  withdrawal  of 
these  lands  made  December  16,  1905,  was 
of  no  force. 

Wolsey  y.  Chapman,  101  U.  S.  769,  25  L. 
ed.  920;  Wilcox  v.  Jackson,  13  Pet  498,  10 
L.  ed.  264;  United  States  y.  Blendauer,  122 
Fed.  703;  Newhall  v.  Sanger,  92  U.  S.  761, 
763,  23  L.  ed.  769,  770;  Bardon  v.  Northern 
P.  R.  Co.  145  U.  S.  535,  538,  36  L.  ed.  806, 
809,  12  Sup.  Ct.  Rep.  856;  Barker  v.  Har- 
vey, 181  U.  S.  481,  490,  45  L.  ed.  963,  968, 
21  Sup.  Ct  Rep.  690;  Union  P.  R.  Co.  v. 
Harris,  215  U.  S.  388,  54  L.  ed.  247,  30  Sup. 
Ct.  Rep.  138;  Barnard  y.  Ashley,  18  How. 
43,  46,  15  L.  ed.  285,  286;  Hosmer  y.  Wal- 
lace, 97  U.  S.  575,  579,  24  L.  ed.  1130,  1131; 
Buxton  v.  Traver,  130  U.  S.  232,  235,  32 
L.  ed.  920,  921,  9  Sup.  Ct  Rep.  509. 

The  presidential  proclamation  of  January 

•01 


196,  197 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm 


25, 1907»  was  of  no  force  as  far  as  the  lands 
in  question  were  concerned  because 

(a)  The  proclamation  did  not  affect  these 
lands. 

(b)  The  proclamation  expresslj  excepted 
the  lands. 

Bardon  v.  Northern  P.  R.  Co.  145  U.  S. 
535,  539,  36  L.  ed.  806,  809, 12  Sup.  Ct.  Rep. 
856;  Missouri,  K.  &  T.  R.  Co.  v.  Roberts, 
152  U.  S.  114,  119,  38  L.  ed.  377,  380,  14 
Sup.  Ct.  Rep.  496;  United  States  v.  Blen- 
dauer,  122  Fed.  703. 

Mr.  Richard  Sleight  filed  a  brief  for  ap- 
pellees W.  J.  and  Finley  Morrison: 

The  grant  of  the  school  sections  to  the 
state  irrevocably  pledged  this  land  to  the 
state,  and  placed  it  beyond  the  power  of 
Congress  or  the  President  to  divert  it  to 
other  purposes. 

Beecher  v.  Wetherby,  95  U.  6.  517,  24  L. 
ed.  440;  Cooper  y.  Roberts,  18  How.  173, 
15  L.  ed.  338;  Ham  v.  Missouri,  18  How. 
126,  15  L.  ed.  334;  Schneider  v.  Hutchinson, 
35  Or.  253,  76  Am.  St.  Rep.  474,  57  Pac. 
324. 

The  title  to  school  lands  became  vested  in 
the  state  when  the  survey  was  jnade  in  the 
field. 

Hibberd  v.  Slack,  84  Fed.  571;  Oakley  v. 
Stuart,  52  Cal.  535. 

The  act  of  1891  (U.  S.  Rev.  SUt.  §  2275. 
Comp.  Stat.  1913,  S  4860,  as  amended)  ex- 
pressly gives  the  state  the  right  of  election 
to  select  other  lands  in  lieu  of  those  in  the 
school  sections  which  have  been  embraced 
within  a  reservation,  or  to  await  the  ex- 
tinguishment of  the  reservation,  and  the 
restoration  of  the  lands  therein  embraced 
to  the  public  domain,  and  then  to  take  the 
specific  lands  in  such  sections. 

United  SUtes  v.  Thomas,  151  U.  S.  577, 
583,  38  L.  ed.  276,  278,  14  Sup.  Ct.  Rep. 
426. 

[106]  Mr.  Justice  Hughes  delivered  the 
opinion  of  the  court: 

The  United  States  brought  this  suit  to 
quiet  title  to  lands  in  section  16,  township 
3  south,  range  6  east,  Willamette  Meridian, 
Oregon.  By  the  act  of  February  14,  1859, 
chap.  33  (11  Stat,  at  L.  383,  Comp.  SUt. 
1913,  §  6799  (42)),  for  the  admission  of 
Oregon  into  the  Union,  it  was  provided 
(§4): 

'^hat  the  following  propositions  be,  and 
t^e  same  are  hereby,  offered  to  the  said 
people  of  Oregon  for  their  free  acceptance 
or  rejection,  which,  if  accepted,  shall  be  ob- 
ligatory on  the  United  States  and  upon  the 
said  state  of  Oregon,  to  wit:  First,  That 
sections  numbered  sixteen  and  thirty-six  in 
every  township  of  public  lands  in  said  state, 
and  where  either  of  said  sections,  or  any 


part  thereof,  has  been  sold  or  otherwise  been 
disposed  of,  other  lands  equivalent  thereto, 
and  as  contiguous  as  may  be,  shall  be  grant* 
ed  to  said  state  for  the  use  of  schools. 
.  •  •  Provided,  however.  That  in  case  any 
of  the  lands  herein  granted  to  the  state  of 
Oregon  have  heretofore  been  confirmed  to 
the  territory  of  Oregon  for  the  purposes 
specified  in  this  act,  the  amoimt  so  con- 
firmed shall  be  deducted  from  the  quantity 
specified  in  this  act." 

The  propositions  of  the  enabling  act  were 
accepted  by  the  legislative  assembly  of  the 
state  of  Oregon  on  June  3,  1859.  1  Lord's 
Oregon  Laws,  pp.  28,  29. 

There  was  a  stipulation  of  facts,  in  sub- 
stance, as  follows: 

Prior  to  May  27,  1902,  no  survey  of  any 
kind  had  been  made  by  the  United  States 
of  the  lands  in  question.  On  June  2,  1902, 
a  field  survey  was  made  under  the  direction 
of  the  United  States  surveyor  general  of 
Oregon.  This  officer  approved  the  survey  on 
June  2,  1903,  and  on  June  8,  1903,  trans- 
mitted copies  of  plat  of  survey  and  field 
notes  to  the  Commissioner  of  the  General 
Land  Office.  On  October  13,  1904,  the  Com- 
missioner informed  the  surveyor  general 
that  the  deputy  had  failed  to  describe 
[107]  the  kind  of  instrument  used  in.  the 
execution  of  the  work,  or  to  record  any 
polaris  or  solar  observations  at  that  time, 
and  that  a  supplemental  report  would  be 
necessary.  Additional  field  notes  were 
transmitted  to  the  Commissioner  on  Sep- 
tember 8,  1905.  The  Commissioner  ac- 
cepted the  survey  on  January  31,  1906. 
In  view  of  reports  of  illegal  settlement, 
it  was  directed  that  no  entries  should  be 
allowed  until  further  permission,  as  the 
survey  was  accepted  "for  payment  only." 
The  plat  was  received  in  the  local  land 
office  on  February  7,  1906.  On  Novem- 
ber 16,  1907,  the  suspension  was  revoked, 
and  the  surveyor  general  of  Oregon  was  di- 
rected to  place  the  plat  on  file  in  the  local 
land  office,  and  it  was  filed  accordinc^ly  in 
substantially  the  same  form  in  which  it  had 
been  accepted  by  the  surveyor  general  "with- 
out change  or  correction." 

On  December  16,  1905,  the  Secretary  of 
the  Interior  "temporarily  withdrew  for  for- 
estry purposes  from  all  forms  of  disposition 
whatsoever,  except  under  the  mineral  laws 
of  the  United  States,  all  the  vacant  and  un- 
appropriated public  lands"  within  described 
areas,  which  include  the  land  in  controversy. 
Notice  of  this  withdrawal  was  given  on 
December  19,  1905,  to  the  register  and  re- 
ceiver of  the  local  land  office.  In  taking 
this  action  the  Secretary  of  the  Interior 
and  the  Commissioner  described  the  lands 
"according  to  the  rectangular  system  of 
government  survey.'*    On  January  26,  1907, 

240  U.  8. 


1915. 


UNITED  STATES  ▼.  MOBRISON. 


197-800 


the  President  issued  a  proclamation  enlarg- 
lag  the  Cascade  Bangs  Forest  Reserve  so  as 
to  include  the  section  sixteen  in  question 
and  other  lands.  This  proclamation,  by  its 
terms,  excepted  ''all  lands  which  at  this 
date  are  embraced  within  any  withdrawal 
•or  reservation  for  any  use  or  purpose  tu 
which  this  reservation  for  forest  uses  is  in- 
consistent."   84  Stat,  at  L.  3270. 

It  was  the  contention  of  the  government 
that,  by  reason  of  the  withdrawal  by  exccu- 
tive  order  for  forestry  purposes  prior  to  the 
acceptance  of  the  purvey  by  the  [108] 
Commissioner  of  the  General  Ltand  Office, 
the  title  to  the  lands  did  not  pass  to  the 
state  under  the  school  grant.  The  appellees 
claimed  title  under  a  conveyance  from  the 
state,  its  certificates  of  sales  having  been 
executed  on  October  10,  1006,  and  its  deed 
on  January  9,  1907.  Decree  in  favor  of  the 
United  States  (United  States  v.  Oowlishaw, 
202  Fed.  317)  was  reversed  by  the  circuit 
court  of  appeals  (Morrison  v.  United  States, 
128  C.  C.  A.  485,  212  Fed.  29),  and  the  gov- 
emment  appeals  to  this  court. 

The  first  enactment  for  the  sale  of  public 
lands  in  the  western  territory  provided  for 
setting  apart  section  16  of  every  township 
for  the  maintenance  of  public  schools  (ordi- 
nance of  1785;  Cooper  v.  Roberts,  18  How. 
173,  177,  15  L.  ed.  338,  339) ;  and,  in  carry- 
ing out  this  policy,  grants  were  made  for 
common-school  purposes  to  each  of  the  pub- 
lic-land states  admitted  to  the  Union.  Be- 
tween the  years  1802  and  1846  the  grants 
were  of  every  section  16,1  and,  thereafter, 
of  sections  16  and  36.'  In  some  instances, 
additional  sections  have  been  granted.  In 
the  case  of  Oregon,  the  following  provision 
had  been  made  in  establishing  the  territori- 
al government  (act  of  August  14,  1848, 
chap.  177,  §  20,  9  SUt.  at  L.  323,  330)  : 

"That  when  the  lands  in  the  said  terri- 
tory shall  be  surveyed  under  the  direction 
of  the  government  of  the  United  States,  pre- 
paratory to  bringing  the  same  into  market, 
sections  numbered  sixteen  and  thirty-six  in 
each  [109]  township  in  said  territory  shall 


be,  and  the  same  is  hereby,  reserfied  for  the 
purpose  of  being  applied  to  schools  in  said 
territory,  and  in  the  states  and  territories 
hereafter  to  be  erected  out  of  the  same." 

In  1850,  Congress  created  the  office  of 
surveyor  general  of  the  public  lands  in  Ore- 
gon, and  provided  for  survey  and  for  dona- 
tions to  settlers  (act  of  September  27,  1860, 
chap.  76,  9  Stat,  at  L.  496),  and  this  act 
provided  (S  9) :  "That  no  claim  to  a  dona* 
tion  right  .  .  ,  upon  Mctions  sixteen  or 
thirty-six,  shall  be  valid  or  allowed,  if  the 
residence  and  cultivation  upon  which  the 
same  is  founded  shall  have  commenced  after 
the  survey  of  the  same."  By  the  act  of 
February  19,  1851,  chap.  10  (9  Stat,  at  L. 
568),  Congress  authorized  the  legislative 
assemblies  of  the  territories  of  Oregon  and 
Minnesota  "to  make  such  laws  and  needful 
regulations  as  they  shall  deem  most  expe- 
dient to  protect  from  injury  and  waste  see* 
tions  numbered  sixteen  and  thirty-six  .  .  . 
reserved  in  each  township  for  the  support 
of  schools  therein."  In  1853  (act  of  Janu- 
ary 7,  1853,  chap.  6,  10  Stat,  at  L.  150)  the 
legislative  assembly  of  Oregon  was  author- 
ised "in  all  cases  where  the  sixteen  or  thir- 
ty-six sections,  or  any  part  thereof,  shall  be 
taken  and  occupied  under  the  law  making 
donations  of  land  to  actual  settlers"  to  se- 
lect, "in  lieu  thereof,  an  equal  quantity  of 
any  unoccupied  land  in  sections,  or  fraction- 
al sections,  as  the  ease  may  be."  And  these 
provisions  were  followed  in  1859  by  the 
proposition  of  the  enabling  act  (supra)  ac- 
cepted by  the  state  of  Oregon  that  these 
sections  "in  every  township  of  public  lands" 
within  the  state,  and  "where  either  of  said 
sections,  or  any  part  thereof,  has  been  sold 
or  otherwise  been  disposed  of,  other  lands 
equivalent  thereto,  and  as  contiguous  as 
may  be,  shall  be  granted  to  said  state  for 
the  use  of  schools." 

Prior  to  survey,  the  designated  sections 
were  undefined  and  the  lands  were  unidenti- 
fied. It  is  insisted  by  the  [200]  appellees 
that  there  was  a  grant  in  prtxaenti,  under 
which  the  state  acquired  a  vested  right  in 


lOhio  (2  Stat  at  L.  175,  chap.  40); 
Louisiana  (2  Stat,  at  L.  394,  chap.  39,  5 
Stat,  at  L.  600,  chap.  33) ;  Indiana  (3  SUt. 
at  L.  200,  chap.  57);  Mississippi  (2  Stat, 
at  L.  234,  chap.  27,  10  Stat,  at  L.  6,  chap. 
35) ;  Illinois  (3  Stat,  at  L.  430,  chap.  67) ; 
Alabama  (3  Stat,  at  L.  491,  chap.  47); 
Missouri  (3  Stat,  at  L.  547,  chap.  22,  Comp. 
Stat.  1913,  9  6799  (42));  Arkansas  (5 
SUt.  at  L.  58,  chap.  120) ;  Michigan  (5 
SUt.  at  L.  59,  chap.  121 ) ;  Florida  ( 5  SUt. 
at  L.  788,  chap.  75,  Comp.  SUt.  1013,  § 
6799(42) ) ;  Iowa  (5  SUt.  at  L.  789,  chap. 
76,  CoBip.  SUt.  1913,  §  6799(42) ) ;  Wiscon- 
tm  (9  SUt.  at  L.  58,  chap.  89,  Comp.  SUt. 
1913,  I  6799(42)). 

iCalifomU  (10  SUt.  at  L.  246.  chap. 
•O  Ii.  ed. 


145) ;  MinnesoU  (11  Stat,  at  L.  167,  chap. 
60,  Comp.  SUt.  1913,  S  6799(42) ) ;  Oregon 
(11  SUt.  at  L.  383,  chap.  33) ;  Kansas  (12 
Stat,  at  L.  127,  chap.  20);  Nevada  (18 
SUt.  at  L.  32,  ehap.  36,  Comp.  SUt.  1918, 
§  6799  ( 42 ) ) ;  Nebraska  ( 13  SUt.  at  L.  49, 
chap.  59);  Colorado  (18  SUt.  at  L.  475, 
chap.  139) ;  North  DakoU,  South  DakoU, 
Montana,  and  Washington  (25  SUt.  at  L^ 
679,  chap.  180) ;  Idaho  (26  SUt.  at  L.  216, 
chap.  656) ;  Wyoming  (26  SUt.  at  L.  222, 
chap.  664) ;  UUh  (28  Stat,  at  L.  109,  chap. 
138);  Oklahoma  (84  SUt.  at  L.  272,  chap. 
3335,  Comp.  SUt.  1913,  §  5245);  New 
Mexico  (36  SUt.  at  L.  561,  chap.  310); 
Arizona  (86  SUt.  at  L.  672,  chap.  810). 


200-202 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Twm, 


tbe  lands,  subject  only  to  identification 
which  would  relate  back  to  the  date  of  the 
grant,  and  that  ''any  sale  or  disposAl"  sub- 
sequent to  that  date  "was  illegal  and  void." 
It  will  be  observed,  however,  that  the  lan- 
guage used  is  not  that  of  a  present  grant. 
The  expression  is  "shall  be  granted,"  and 
these  words  are  used  both  with  respect  to 
the  described  sections  and  to  the  undefined 
indemnity  lands  which  would  be  received  in 
compensation  for  losses.  In  the  latter  ease, 
there  was  obviously  no  present  grant,  and 
none,  we  think,  was  intended  in  the  former. 
Attention  is  called  to  the  words  "herein 
granted"  in  the  proviso  of  the  enabling  act, 
but  this  is  a  mere  reference  to  what  pre- 
cedes, and  does  not  change,  or  purport  to 
change,  the  terras  of  the  donation.  It  must 
have  been  manifest  to  Congress,  executing 
this  definite  policy  with  respect  to  the  vast 
area  of  the  public  lands,  that  not  improba- 
bly a  long  period  would  elapse  in  the  case  of 
numerous  townships  before  surveys  would  be 
completed.  Not  only  was  it  inevitable  that 
upon  survey  there  would  be  found  to  be  frac- 
tional townships  in  which  there  would  be 
either  no  section  sixteen,  or  thirty-six,  or 
only  a  portion  of  one  or  the  other,  but  in 
various  instances  there  might  be  prior 
claims,  or  actual  settlements,  or  it  might 
appear  before  surveys  were  had  that  there 
were  important  public  interests  which,  in 
the  judgment  of  Congress,  should  be  sub- 
served by  some  other  disposition  of  lands  of 
a  particular  character.  On  the  other  hand, 
it  was  not  important  to  the  state  that  it 
should  receive  specific  lands,  if  suitable  in- 
demnity were  given.  It  was  in  this  situa- 
tion that,  in  making  its  school  grants  to 
the  public-land  states,  Congress  provided 
that  the  described  sections,  or  equivalent 
lands  if  the  former  in  whole  or  in  part  had 
"been  sold  or  otherwise  been  disposed  of," 
should  be  granted.  Whether  or  not  provi- 
sion had  already  been  made  for  [201]  the 
sale  or  disposition  of  public  lands  within 
the  borders  of  the  state  at  the  time  of  its 
admission,  the  language  of  the  school  grant 
was  substantially  the  same.  And  we  think 
that  its  import  is  clear.  The  designation  of 
these  sections  was  a  convenient  method  of 
devoting  a  fixed  proportion  of  public  lands 
to  school  uses;  but  Congress,  in  making  its 
compacts  with  the  states,  did  not  undertake 
to  warrant  that  the  designated  sections 
would  exist  in  every  township,  or  that,  if 
existing,  the  state  should  at  all  events  take 
title  to  the  particular  lands  found  to  be 
therein.  Congress  did  undertake,  however, 
that  these  sections  should  be  granted  un- 
less they  had  been  sold  or  otherwise  dis* 
posed  of;  that  is,  that  on  the  survey,  de- 
fining ^e  sections,  the  title  to  the  lands 
ahould  pASB  to  the  state  provided  sale 
0O4 


or  other  disposition  had  not  previously 
been  made;  and,  if  it  had  been  made,  thai 
the  state  should  be  entitled  to  select  equiva- 
lent lands  for  the  described  purpose. 

By  the  act  of  May  20,  1826,  chap.  83  (4 
Stat,  at  L.  179,  Comp.  SUt.  1913,  §  4861), 
there  had  been  provision  made  for  compen- 
sation in  the  case  of  townships  and  fraction- 
al townships,  for  which  the  stated  ap- 
propriation for  school  purposes  had  not  been 
made.  In  1859,  a  further  act  was  passed 
( Feb.  26,  1859,  chap.  58,  1 1  Stat,  at  L.  385, 
Comp.  Stat.  1913,  §  4860),  to  the  effect  that 
where  settlement  with  a  view  to  pre-emption 
had  been  made  "before  the  survey  of  the 
lands  in  the  field"  on  sections  16  or  36,  these 
sections  should  "be  subject  to  the  pre-emp- 
tion claim  of  such  settler."  And  it  was 
added — "if  they,  or  either  of  them,  shall 
have  been  or  shall  be  reserved  or  pledged  for 
the  use  of  schools  or  colleges  in  the  state  or 
territory  in  which  the  lands  lie,  other  lands 
of  like  quantity  are  hereby  appropriated  in 
lieu  of  such  as  may  be  patented  by  pre- 
emptors ;  and  other  lands  are  also  hereby  ap- 
propriated to  compensate  deficiencies  for 
school  purposes  where  said  sections  sixteen 
or  thirty-six  are  fractional  in  quantity, 
where  one  or  both  are  wanting  by  [SOS] 
reason  of  the  township  being  fractional,  or 
from  any  natural  cause  whatever."  These 
lands  were  to  be  selected  in  accordance  with 
the  principles  of  adjustment  defined  in  the 
act  of  1826.  These  provisions  were  incor- 
porated in  §§  2275  and  2276  of  the  Revised 
SUtutes  (Comp.  Stat.  1913,  §§  4860,  4861). 
And  the  latter  were  amended  by  the  act  of 
February  28,  1891,  chap.  384  (26  Stat,  at  L. 
796,  Comp.  SUt.  1913,  §§  4860,  4861),  whieh 
in  part  provided:  "And  other  lands  of  equal 
acreage  are  also  hereby  appropriated  and 
granted,  and  may  be  selected  by  said  state 
or  territory,  where  sections  sixteen  or  thirty- 
six  are  mineral  land,  or  are  included  within 
any  Indian,  military,  or  other  reservation, 
or  are  otherwise  disposed  of  by  the  United 
States."  In  this  manner.  Congress  has 
undertaken  to  discharge  its  obligation  by 
assuring  to  the  states  the  equivalent  of  the 
school-grant  sections  when  these  have  ''been 
sold  or  otherwise  been  disposed  of." 

The  questipn  now  presented  was  not  in- 
volved in  Ham  v.  Missouri,  18  How.  126, 
15  L.  ed.  334,  or  in  Cooper  v.  Roberta,  18 
How.  173,  15  L.  ed.  338.  The  former  case 
related  to  the  school  grant  to  Missouri  under 
the  act  of  March  6,  1820  (3  Stat,  at  L.  547, 
chap.  22,  Comp.  Stat.  1913,  §  6709,  (42)). 
Ham  had  been  indicted  for  waste  and  tres- 
pass on  the  16th  section  of  one  of  the  town- 
ships, and  his  conviction  was  affirmed.  In 
defense,  he  claimed  title  under  a  Spanish 
grant.  This  had  been  rejected  by  the  Board 
of  Commissioners  in  1811,  and  it  appeared 

940  U.  8. 


1915. 


UNITED  STATES  t.  MORRISON. 


20^205 


that  the  United  States  had  full  power  of  dit- 
IKMition  at  the  time  of  the  donation  to  the 
ctate.  Referring  to  the  provision  for  the 
grant  of  equivalent  lands,  to  take  the  place 
•of  those  "sold  or  otherwise  disposed  of/'  the 
eourt  said:  "Sale,  necessarily  signifying  a 
Uigal  sale  by  a  competent  authority^  is  a  dis- 
position, final  and  irrevocable,  of  the  land. 
The  phrase  'or  otherwise  dispose  of  must 
signify  some  disposition  of  the  property 
equally  efficient,  and  equally  incompatible 
with  any  right  in  the  state,  present  or 
potential,  as  deducible  from  the  act  of  1820, 
and  the  ordinance  of  the  same  year."  But  in 
the  case  cited  there  [203]  had  been  no  such 
disposition.  Reliance  was  placed  by  Ham 
upon  an  act  of  1828  (6  Stat,  at  L.  386, 
chap.  135)  confirming  the  grant  to  his 
predecessors,  but  this  confirmatory  act  ex- 
plicitly provided  that  it  should  not  '*preju- 
•dice  the  rights  of  third  persons,  nor  any 
title  heretofore  derived  from  the  United 
States,  either  by  purchase  or  donation." 
And  it  further  appeared  that  the  survey  had 
been  made  of  the  land  in  question  before  the 
•oonfirmatory  act  waa  passed  (see  18  How. 
p.  134).  In  Cooper  v.  Roberts,  supra, 
the  plaintiff  asserted  title  under  the 
school  grant  made  to  Michigan  (act 
of  June  23,  1830,  5  Stat,  at  L.  59, 
chap.  121).  The  section  16  in  controversy 
had  been  surveyed  in  1847.  Sale  had  been 
made  by  the  state  in  February,  1851,  and  its 
patent  had  issued  in  November  of  that  year. 
It  was  in  1850,  after  the  lands  had  been  sur- 
veyed, that  the  defendant's  grantor  had  ap- 
plied to  the  officers  of  the  land  office  to  enter 
the  land,  and  the  entry  was  allowed  in  1852 
'witli  a  reservation  of  the  rights  of  Michigan, 
which  the  Secretary  of  the  Interior  deemed 
to  be  superior.  It  was  in  these  circum- 
stances, it  being  found  that  there  was  no 
legal  impediment  through  any  legislation, 
that  the  court  held  that  the  title  had  passed 
to  the  state. 

In  the  case  of  Heydenfeldt  v.  Daney  Gold 
A  S.  Min.  Co.  03  U.  S.  634,  23  L.  ed.  905,  13 
Mor.  Min.  Rep.  204,  there  had  been  a  dis- 
position of  the  land  under  the  authority  of 
Congress  between  the  date  of  the  school 
grant  and  the  date  of  the  survey.  This  case 
arose  under  the  school  grant  to  Nevada  (act 
of  March  21,  1864,  13  Stat,  at  L.  30,  32, 
chap.  36),  which  was  one  of  the  exceptional 
instEuices  where  words  of  present  grant  were 
used,  these,  however,  being  qualified  by  the 
cUuse  relating  to  sale  or  other  disposition. 
The  act  provided:  "That  sections  numbers 
sixteen  and  thirty-six,  in  every  township, 
and  where  such  sections  have  been  sold  or 
otherwise  disposed  of  by  any  act  of  Con- 
gress, other  lands  equivalent  thereto  .  .  . 
shall  be,  and  are  hereby,  granted  to  said 
state  for  the  support  of  common  schools." 
«0  Ii.  ed. 


I  The  plaintiff  claimed  under  a  patent  [204] 
issued  by  the  state  of  Nevada  in  1868.  The 
land  was  mineral  land,  and  the  defendant 
was  in  possession^  carrying  on  the  mining 
business,  having  obtained  a  patent  from  the 
United  States  under  the  acts  of  July  26, 
1866  (14  SUt.  at  L.  251,  chap.  262),  as 
amended,  and  May  10,  1872  (17  Stat,  at  L. 
91,  chap.  152,  Comp.  Stat.  1013,  §  4614). 
The  entry  an4  claim  of  the  defendant's 
predecessors  in  interest  were  made  in  1867, 
prior  to  the  survey  of  the  section  in  ques- 
tion. It  was  held  that  the  lands  were  sub- 
ject to  the  disposition  of  Congress  until  the 
survey  and  its  approval;  and  hence  the 
judgment  in  favor  of  the  defendant  was 
affirmed.  The  words  of  present  grant  were 
deemed  to  be  restricted  by  the  words  of 
qualification.  The  court  said  that  it  was 
intended  to  place  Nevada  **on  an  equal 
footing  with  states  then  recently  admit- 
ted. Her  people  were  not  interested  in 
getting  the  identical  sections  10  and  36 
in  every  township.  Indeed,  it  could  not  be 
known  until  after  a  survey  where  they 
would  fall,  and  a  grant  of  quantity  put  her 
in  as  good  a  condition  as  the  other  states 
which  had  received  the  benefit  of  this 
bounty.  A  grant,  operating  at  once,  an4  at- 
taching prior  to  the  surveys  by  the  United 
States,  would  deprive  Congress  of  the  power 
of  disposing  of  any  part  of  tlie  lands  in  Ne- 
vada, until  they  were  segregated  from  those 
granted.  In  the  mean  time,  further  im- 
provements would  be  arrested,  and  the  per- 
sons who,  prior  to  the  surveys,  had  occu- 
pied and  improved  the  country,  would  lose 
their  possessions  and  labor,  in  case  it  turned 
out  that  they  had  settled  upon  the  speci- 
fied sections.  .  .  .  Until  the  atatu^  of 
the  lands  was  fixed  by  a  survey,  and  they 
were  capable  of  identification,  Congress  re- 
served absolute  power  over  them;  and  if,  in 
exercising  it,  the  whole  or  any  part  of  a  16th 
or  36th  section  had  been  disposed  of,  the 
state  was  to  be  compensated  by  other  lands 
equal  in  quantity,  and  as  near  as  may  be  in 
quality.  By  this  means  the  state  was  fully 
indemnified,  the  settlers  ran  no  risk  of 
losing  the  labor  of  years,  and  Congress  was 
left  [205]  free  to  legislate  touching  the 
national  domain  in  any  way  it  saw  fit,  to 
promote  the  public  interests."  It  is  said 
that  the  Nevada  school  grant  added  the 
words  "by  any  act  of  Congress"  to  the 
phrase  "otherwise  disposed  of,"  and  that 
the  former  words  are  not  in  the  Oregon 
grant.  But  this  does  not  mark  a  distinc- 
tion, as  "otherwise  disposed  of,"  of  course, 
implies  that  the  disposition  shall  be  by 
competent  authority.  It  is  also  urged 
that  the  court  emphasized  the  fact  that 
there  had  been  no  sale  or  disposition 
of   the   public   lands   in   Nevada   prior   to 


«N^207 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Temm, 


the  enabling  act,  and  therefore  that  the 
clauae  oould  refer  only  to  futnre  disposi- 
tion; whereas,  in  the  case  of  Oregon,  tiiere 
had  been  earlier  provisions  for  the  disposal 
of  the  publid  domain.  But  Congress  nsed 
the  same  phrase  substantially  in  nearly 
every  one  o!  the  school  grants,  and  it  was 
the  manifest  intention  to  place  the  states  on 
the  same  footing  in  this  matter.  The  same 
elause,  relating  to  the  same  subject,  and 
enacted  in  pursuance  of  the  same  policy,  did 
not  have  one  meaning^  in  one  grant  and  a 
different  meaning  in  another;  it  covered 
other  dispositions,  whether  prior  or  sub- 
sequent, if  made  before  the  land  had  been 
appropriately  identified  by  survey  and  title 
had  passed.  Nor  is  a  distinction  to  be  ob- 
served between  mineral  lands  and  other 
lands,  if  in  fact  CongresA  disposed  of  them. 
The  validity  of  the  disposition  would  not  be 
affected  by  the  character  of  the  lands,  al- 
though this  might  supply  the  motive  for  the 
action  of  Congress.  We  regard  the  decision 
in  the  Heydenfeldt  Case  as  establishing  a 
definite  rule  of  construction. 

In  opposition  to  this  definition  of  the  ef- 
fect of  the  donation  for  school  purposes,  the 
appellees  rely  upon  what  was  said  in  Beech- 
er  V.  Wetherby,  96  U.  S.  517,  24  L.  ed.  440. 
That  was  an  action  of  replevin  to  recover 
logs  cut  on  a  section  16  in  Wisconsin  which 
had  been  granted  by  the  enabling  act  of  1846 
(9  Stat,  at  L.  68,  chap.  89,  Comp.  Stat.  1913, 
I  6799  (42)).  The  exterior  lines  of  the 
township  in  which  the  land  was  [206]  situ- 
ated were  run  in  October,  1862,  and  the  sec- 
tion lines  in  May  and  June,  1864;  and  the 
defendant  claimed  under  patents  from  the 
state  issued  in  1866  and  1870.  The  land  had 
been  occupied  by  the  Menominee  Indians, 
but  their  right  was  only  that  of  occupancy. 
'The  fee  was  in  the  United  States,  subject 
to  that  right,  and  could  be  transferred  by 
them  whenever  they  chose."  By  the  treaty 
of  1848  (9  Stat,  at  L.  952)  these  Indians 
agreed  to  cede  to  the  United  States  all  their 
lands  in  Wisconsin,  it  being  stipulated  that 
they  should  be  entitled  to  remain  on  the 
lands  for  two  years.  In  view  of  their  un- 
willingness to  withdraw,  a  further  act  was 
passed  (10  Stat  at  L.  1064)  by  which  a 
tract  was  assigned  to  them  embracing  the 
land  in  controversy.  Subsequently,  a  portion 
of  this  reservation  was  assigned  by  another 
treaty  to  the  Stockbridge  and  Munsee  tribes, 
and  for  the  benefit  of  the  latter  Congress 
passed  the  act  of  February  6,  1871  (16  Stat, 
at  L.  404,  chap.  38),  providing  for  the  sale 
of  certain  townships.  The  plaintiff  asserted 
title  under  patents  issued  by  the  Utaited 
States  in  1872  pursuant  to  this  act.  It  ap- 
peared, however,  that  the  Indian  occupation 
of  the  land  had  ceased  before  the  logs  were 
cut  The  court  held  that  the  title  had  vest- 
S00 


ed  in  the  state,  and  hence  that  the  plaintiff 
had  acquired  no  title  by  his  patents  from 
the  United  States.  It  was  said  in  the  opin- 
ion that  by  the  compact  with  the  state  (the 
school  grant)  the  lands  were  ''withdrawn 
from  any  other  disposition,  and  set  apart 
from  the  public  domain,  so  that  no  subse- 
quent law  authorizing  a  sale  of  it  could  be 
construed  to  embrace  them,  although  thej 
were  not  specially  excepted;"  and  that 
after  this  compact  "no  subsequent  sale  or 
other  disposition  .  .  .  could  defeat  the 
appropriation."  But  it  was  also  stated 
that  "when  the  logs  in  suit  were  cut,  those 
tribes  (Stockbridge  and  Munsee)  had  re- 
moved from  the  land  in  controversy,  and 
other  sections  had  been  set  apart  for  their 
occupation."  That  is,  the  lands  had  been 
surveyed  in  1854;  prior  to  [207]  that  time, 
there  had  been  no  other  disposition  of  the 
fee  by  the  United  States;  the  title  had 
vested  in  the  state,  subject  at  most  to  the 
Indian  occupancy,  and  this  had  terminated. 
There  was  abundant  reason  for  the  decisio* 
that  these  lands  were  not  embraced,  and 
were  not  intended  to  be  embraced,  in  the 
provisions  for  sale  made  by  the  act  of  1871. 
What  was  said  in  the  opinion  must  be  con- 
sidered in  the  light  of  the  facts  (Weyer- 
haeuser V.  Hoyt,  219  U.  S.  380,  394,  66  L.  ed. 
268,  264,  31  Sup.  Ct.  Rep.  300).  The 
Heydenfeldt  Case  was  not  cited  and  cannot 
be  regarded  as  overruled.  See  New  York 
Indians  v.  United  States,  170  U.  S.  1,  18, 
42  L.  ed.  927,  933,  18  Sup.  Ct.  Rep.  .531; 
Minnesota  v.  Hitchcock,  186  U.  S.  375,  399- 
401,  46  L.  ed.  966,  967,  968,  22  Sup.  Ct.  Rep. 
660. 

The  rule  which  the  Heydenfeldt  Case 
established  has,  we  understand,  been  uni- 
formly followed  in  the  land  office.  After  re- 
viewing the  cases,  Secretary  Lamar  con- 
cluded (December  6,  1887.  Re  Colorado,  6 
I>and  Dec.  412,  417)  that  thi?  school  grant 
"does  not  take  effect  until  after  survey,  and 
if  at  that  date  the  specific  sections  are  in 
a  condition  to  pass  by  the  grant,  the  abso- 
lute fee  to  said  sections  immediately  vests 
in  the  state,  and  if  at  that  date  said  see- 
tions  have  been  sold  or  disposed  of,  the 
state  takes  indemnity  therefor."  And  see,  te 
the  same  effect,  Niven  v.  California,  6  Land 
Dec.  439;  State  v.  Kuhn,  24  Land  Dec.  12» 
18;  Stote  v.  Wright,  24  Land  Dec.  64,  67; 
SUte  V.  Riley,  34  Land  Dee.  657,  660; 
State  V.  Thomas,  36  Land  Dec.  171,  173;  Re 
F.  A.  Hyde  ft  Co.  37  Land  Dec.  164,  166; 
Re  Montana,  38  Land  Dec.  247,  260. 

The  case  of  United  States  v.  Thomas,  161 
U.  S.  677,  38  L.  ed.  276,  14  Sup.  Ct.  Rep. 
426,  involved  the  Wisconsin  school  grants 
the  question  being  whether  the  Federal 
court  in  that  state  had  jurisdiction  to  try 
an  Indian  charged  with  the  murder  of  an- 

940  U.  8* 


1915. 


UNITED  STATES  t.  MORRISON. 


907-210 


othor  Indimn  within  the  limits  of  section  16 
in  a  township  forming  part  of  an  Indian 
reservation.  It  appeared  that  by  treaty 
prior  to  the  enabling  act  of  1846  the 
Indians  had  stipulated  for  the  right  of  oc- 
cupancy; that  they  had  nerer  been  removed 
from  the  lands;  and  that,  by  treaty  [808] 
of  1854,  the  particular  reservation  in  ques- 
tion had  been  estabUshad.  The  lands  were 
not  surveyed  until  1865.  From  any  point  of 
view  it  was  clear  that  the  title  had  never 
vested  in  the  state,  except  as  subordinate  to 
the  right  of  occupation  of  the  Indiana,  and 
it  was  held  that  the  Federal  Jurisdiction  ex- 
isted. Minnesota  v.  Hitchcock,  supra,  was 
a  suit  brought  by  the  state  to  enjoin  the 
Secretary  of  the  Interior  from  se)U^g  any 
sections  16  and  36  in  the  Red  Lake  Indian 
Reservation,  the  sales  having  been  author- 
ised by  the  act  of  January  14,  1880  (25 
Stat,  at  L.  642,  chap.  24),  which  was  passed 
for  the  relief  of  the  Chippewa  Indians.  The 
school  grant  to  Minnesota  was  made  by  the 
enabling  act  of  1857  (11  Stat,  at  L.  167, 
chap.  60,  Comp.  Stat  1013,  |  6700  (42)). 
The  lands  in  question,  however,  were  not 
surveyed  until  after  Uie  act  of  1880  had 
been  passed,  and  the  agreement  it  contem- 
plated had  been  made  with  the  Indians.  The 
oourt  dismissed  the  bill  of  the  state.  It  was 
held  that  when  Congress  undertook  in  1889 
"to  make  provision  for  this  body  of  lands, 
it  could  have,  by  treaty  taken  simply  a  ces- 
sion of  the  Indian  ri^^ts  of  occupancy,  and 
thereupon  the  lands  would  have  become  pub- 
lic lands  and  within  the  scope  of  the  school 
grant;"  but  that  Congress  also  'Hiad  the 
power  to  make  arrangements  with  the 
Indians  by  which  the  entire  tract  would  be 
otherwise  appropriated.  .  .  .  Before  any 
survey  of  the  lands,  before  the  state  right 
had  attached  to  any  particular  sections,  the 
United  States  made  a  treaty  or  agreement 
with  the  Indians,  by  which  they  accepted  a 
cession  of  the  entire  tract  under  a  trust  for 
its  disposition  in  a  particular  wiiy."  The 
Heydenfeldt  case  was  cited  with  approvaL 
Referring  to  the  Joint  resolution  passed  by 
CongreBB  cm  March  3,  1857  (11  Stat,  at  L. 
254),  to  the  effect  that  in  case  of  settle- 
ments on  the  16th  or  36th  sections,  their  se- 
lection as  town  sites,  or  their  reservation  for 
publie  uses  prior  to  survey,  other  lands 
should  be  selected  in  lieu  thereof,  [209] 
and  to  the  contention  of  the  state  that  the 
"public  uses"  thus  oontemf^ted  were  "gov- 
ernmental uses,"  the  eourt  said:  "It  is  un- 
necessary to  rest  upon  a  determination  of 
this  question.  We  refer  to  the  resolution  as 
an  express  declaration  by  Congress  that  the 
school  sections  were  not  grant^  to  the  state 
absolutely,  and  beyond  any  further  control 
by  Congress,  or  any  further  action  under  the 
general  land  laws.  As  in  Heydsnlddt  T. 
60  L«  ed. 


Dan^  Gold  k  8.  Min.  Co.  supra,  priority 
was  given  to  a  mining  entry  over  tiie  state's 
school  right,  so  here,  in  terms,  preference  is 
given  to  private  entries,  town-site  entries,  or 
reservations  for  public  uses.  In  other 
words,  the  act  of  admission,  with  its  clause 
in  respect  to  school  lands,  was  not  a 
promise  by  Congress  that  under  all  circum-^ 
stances,  either  then  or  in  the  future,  these 
specific  school  sections  were  or  should  be- 
come the  property  of  the  state.  The  possi- 
bility of  other  disposition  was  contemplated, 
the  rig^t  of  Congress*  to  make  it  was  recog- 
nised, and  provision  made  for  a  selection  of 
other  lands  in  lieu  thereof.  In  this  con- 
nection may  also  be  noticed  the  act  of  Febru- 
ary 28,  1801,  although  passed  after  the  ap- 
proval of  the  agreement  for  the  cession  of 
these  lands  by  the  Indians.  That  act  in 
terms  authorised  the  selection  of  other  lands 
"where  sections  sixteen  or  thirty-six  are 
mineral  land,  or  are  included  within  any 
Indian,  military,  or  other  reservation,  or 
are  otherwise  disposed  of  by  the  United 
SUtcs." 

The  case  of  Wisconsin  v.  Hitchcock,  201 
U.  S.  202,  50  L.  ed.  727,  26  Sup.  Ct.  Rep. 
408,  followed  United  States  v.  Thomas, 
and  Minnesota  v.  Hitchcock,  supra.  In 
Alabama  v.  Schmidt,  232  U.  S.  168,  58  L. 
ed.  555,  34  Sup.  Ct.  Rep.  301,  there  was  no 
question  as  to  the  acquisition  of  title  by  the 
state.  It  was  held  that,  assuming  that  the 
state  had  acquired  tiUe  to  the  lands  em- 
braced in  the  school  grant,  it  had  authority 
to  subject  the  lands  in  its  hands  to  the  ordi- 
nary incidents  of  other  titles  in  the  state, 
including  that  of  adverse  possession. 

[810]  We  conclude  that  the  state  of  Ore- 
gon did  not  take  title  to  the  land  prior  to 
the  survey;  and  that  until  the  sections 
were  defined  by  survey  and  title  had  vested 
in  the  state.  Congress  was  at  liberty  to 
dispose  of  the  land,  its  obligation  in  that 
event  being  properly  to  compensate  the 
state  for  whatever  deficiencies  resulted. 

The  remaining  question,  then,  is  whether 
there  had  been  a  survey  prior  to  an  au- 
thorized withdrawal  for  forestry  purposes. 
The  surveying  of  the  public  lands  is  an  ad- 
ministrative act  confided  to  the  control  of 
the  Commissioner  of  the  Qeneral  Land  Of- 
fice under  the  direction  of  the  Secretary  of 
the  Interior.  Act  of  July  4, 1836,  chap.  352, 
5  Stat,  at  L.  107,  Rev.  Stat,  f  453,  Comp. 
Stat.  1018, 1  600.  It  was  competent  for  the 
Commissioner,  acting  within  this  authority, 
to  direct  how  surveys  should  be  made,  and 
to  require  that  they  should  be  subject  to  his 
examination  and  approval  before  they  were 
filed  as  officially  complete  in  the  local  land 
office.  Cragin  v.  Powdl,  128  U.  S.  601,  607, 
608,  32  L.  ed.  566,  568,  0  Sup.  Ct.  Rep.  208; 
Tid»baT.  Wilhoit,  188  U.  8.  134, 148,  144,  34 


210-213 


SUPREME*  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


L.  ed.  887,  890,  891,  11  Sup.  Ct.  Hep.  270; 
Knight  V.  United  Land  Asbo.  142  U.  S.  161, 
177,  182,  35  L.  ed.  974,  979,  981,  12  Sup. 
Ct.  Rep.  258;  Michigan  Land  &  Lumber  Co. 
V.  Rust,  168  U.  S.  589,  594,  42  L.  ed.  591, 
593,  18  Sup.  Ct.  Rep  208.  This  was  a  con- 
tinuing authority  which  was  not  suspended 
by  the  school  grant  to  the  state.  The  subse- 
quent adoption  of  rules  relating  to  surveys 
did  not  alter  the  terms  of  the  grant,  but 
these  rules  did  control  the  administrative 
action,  which,  in  view  of  the  terms  of  the 
grant,  was  necessary  to  make  the  grant  ef- 
fective. By  order  of  April  17,  1879,  the 
Commissioner  required  that  surveyors 
general  should  not  "file  the  duplicate  plats 
in  the  local  land  offices  until  the  duplicates 
have  been  examined  in  this  office  and  ap- 
proved," and  the  surveyors  general  "of- 
ficially notified  to  that  effect."  Re  F.  A. 
Hyde  k  Co.  37  Land  Dec.  165.  It  cannot  be 
doubted  that  this  requirement  was  within 
the  authority  of  the  Commissioner  (see 
Tubbs  V.  Wilhoit,  138  U.  S.  134,  143,  144,  34 
L.  ed.  887,  890,  891,  11  Sup.  Ct.  Rep.  279) ; 
and  it  necessarily  follows  that  the  making 
of  the  field  survey  and  its  approval  [811] 
by  the  surveyor  general  of  Oregon  did  not 
make  the  survey  complete  as  an  official  act. 
It  still  remained  subject  to  the  exami- 
nation and  approval  of  the  Commissioner, 
and  for  that  purpose  copies  of  the  plat  of 
survey  and  field  notes  were  transmitted  to 
the  Commissioner,  who,  not  being  satisfied, 
required  a  supplemental  report.  The  mat- 
ter was  still  in  abeyance  when  the  lands  in 
controversy  were  withdrawn  for  forestry 
purposes  by  the  Secretary  of  the  Interior  on 
December  16,  1905.  Reference  is  made  to 
the  terms  of  the  territorial  act  of  1848 
(supra)  with  respect  to  the  reservation  of 
the  described  sections  when  the  lands  were 
"surveyed  .  .  .  preparatory  to  bringing 
the  same  into  market,"  but  this  provision 
furnishes  no  ground  for  the  contention  that 
an  incomplete  and  unapproved  survey  was 
intended.  Much  less  can  it  be  said  that,  un- 
der the  grant  of  the  enabling  act  of  1859,  the 
title  would  pass  at  any  intermediate  stage  of 
the  survey.  Nor  is  there  merit  in  the  con- 
tention that  is  based  on  §  2275  of  the  Re- 
vised Statutes  as  amended  by  the  act  of 
February  28,  1891  (supra),  protecting 
settlements  when  made  "before  the  survey 
of  the  lands  in  the  field."  That  act  imposes 
no  limitation  upon  the  authority  of  Con- 
gress to  dispose  of  the  lands  before  title 
passes  to  the  state;  and  if  title  passes  upon 
survey,  it  must  be  upon  a  survey  duly  com- 
pleted according  to  the  authorized  regula- 
tions of  the  Department.  It  is  said,  however, 
that  in  this  case  the  plat  was  officially 
used  by  the  Commissioner  of  the  General 
Land  Office  and  the   Secretary   of   the  In- 


terior  in  connection  with  the  withdrawal  un- 
der consideration,  and  hence  that  the  survey 
must  be  deemed  to  have  been  officially  ap- 
proved. Wright  V.  Roseberry,  121  U.  S.  488, 
517,  30  L.  ed.  1039,  1047,  7  Sup.  Ct.  Rep. 
985;  Tubbs  v.  Wilhoit,  supra.  It  is  true 
that  the  lands  withdrawn  were  conveniently 
described  according  to  townships,  and  that 
the  official  correspondence  referred  to  an 
accompanying  diagram  showing  the  town- 
ships and  sections.  But  neither  the  [218] 
correspondence  nor  the  diagram  contained 
any  reference  to  a  survey  of  the  land« 
in  question  or  constituted  an  approval  of  a 
survey.  These  lands  still  remain  to  be  of- 
ficially defined  in  the  appropriate  manner, 
and  according  to  the  agiced  statement  the 
survey  was  accepted  by  the  Commissioner 
of  the  Oeneral  Land  Office,  as  stated,  on 
January  31,  1906,  and  was  filed  in  the  local 
land  office  on  November  16,  1007,  entries' 
during  the  interval  having  been  sus- 
pended pending  certain  investigations. 
We  think  that  it  is  immaterial  that 
the  survey  was  finally  approved  by  the 
Commissioner  without  modification,  for 
pending  the  approval  it  remained  in  his 
hands,  officially  incomplete,  awaiting  the  re- 
sult of  his  examination.  Again,  it  is  nrged 
that  the  survey,  when  approved,  related  back 
to  the  date  of  the  grant,  or  at  least  to  the 
date  of  the  survey  in  the  field.  The  former 
contention  is  but  a  restatement  in  another 
form  of  the  argument  that  Congress  could 
not  dispose  of  the  land  pending  the  surrey, 
which,  as  we  have  seen,  is  answered  by  the 
terms  of  the  grant;  and  if  Congress  had  this 
power  of  disposition,  it  must  mean  that  the 
lands  could  be  disposed  of  under  the  au- 
thority of  Congress  at  any  time  before  the 
survey  became  a  completed  administrative 
act.  The  doctrine  of  relation  cannot  be  in- 
voked to  destroy  this  authority. 

In  establishing  and  enlarging  the'Cascade 
Range  Forest  Reserve,  the  President  acted 
under  the  express  authority  conferred  by  the 
acts  of  March  3,  1891,  chap.  561,  §  24  (26 
Stat,  at  L.  1095,  1103,  Comp.  Stat.  1013,  §§ 
5116,  5121),  and  June  4,  1897,  chap.  2  (30 
Stat,  at  L.  11,  36).  The  power  to  establish 
the  permanent  reservation  included  the 
power  to  make  temporary  withdrawals 
(United  States  v.  Midwest  Oil  Co.  236  U.  8. 
459,  476,  59  L.  ed.  673,  682,  35  Snp.  Ct.  Rep. 
309) ;  and  the  order  of  the  Secretary  of  the 
Interior,  made  on  December  16,  1905,  mnst 
be  regarded  as  the  act  of  the  President. 
Wilcox  V.  Jackson,  13  Pet.  498,  10  L.  ed. 
264.  The  disposition  by  the  President,  un- 
der the  authority  of  Congress,  was  a  dis- 
position by  Congress. 

[813]  It  is  finally  contended  that  the 
proclamation  by  the  President  on  January 
25, 1907  [34  SUt.  at  L.  3270],  expressly  ez- 

940  V.  8. 


1915. 


ILLIN0I8  SURETT  00.  t.  UNITED  STATES. 


218,  214 


oq>ted  tbe  lands  in  question.  The  exception 
WM  "of  all  lands  which  at  this  date  are  em- 
braced within  any  withdrawal  or  r&erva- 
tion  for  any  use  or  purpose  to  which  this 
reservation  for  forest  uses  is  inconsistent.** 
The  erideht  purpose  of   the  proclamation 
was  to  confirm  and  make  permanent  the 
prior  withdrawal  for  forestry  purposes,  not 
to  override  it.     The  very  object  of  that 
withdrawal  was  to  prevent  claims  of  title 
from  thereafter  attaching  to  the  lands.  And 
the  reference  in  the  exception  to  "any  with- 
drawal or  reservation,"  as  we  view  it,  was 
to  withdrawals  or  reservations  by  the  gov- 
ernment itself  for  other  and  inconsistent 
uses,  and  was  with  a  view  of  avoiding  con- 
fusion in  governmental  action,  not  to  let  in 
subsequently  accruing  claims  of  title  under 
school  grants  as  to  which  Congress  had  indi- 
cated its  purpose  to  make  compensation  for 
deficiencies    when    lands    which    otherwise 
would  have  passed  to  the  state  thereimder 
had  been  duly  taken  for  reservations.   The 
contention  that  the  lands  were  not  "public 
lands"  imtil  surveyed,  and  hence  were  not 
subject  to  reservation  by  the  President  un- 
der the  act  of  Congress,  is  plainly  without 
basis.     See  Bev.  Stat,  g  453,  Comp.  Stat. 
1913,    I    609.      The    provisions    for    forest 
reservations  refers  to  any  part  of  the  public 
lands  which  were  subject  to  the  disposition 
of   Congress.     It  is  also  argued   that  the 
state,  under  the  act  of  February  28,  1891 
(supra),  has  the  right  to  await  the  "ex- 
tinguishment" of  the  "reservation,"  and  the 
"restoration  of  the  lands  therein  embraced 
to  the  public  domain,"  and  then  to  take  the 
described  sections.    We  are  not  called  upon 
to  consider  any  such  question  here,  and  we 
express  no  opinion  upon  it,  as  there  has 
been  no  extinguishment  of  the  reservation, 
and  from  any  point  of  view  it  must  be  con- 
cluded that  no  title  had  passed  to  the  state 
when  it  made  the  conveyance  under  which 
the  appellees  claim. 

[214]  The  decree  of  the  Circuit  Court  of 
Appeals  is  reversed,  and  that  of  the  Dis- 
trict Court  is  affirmed. 

It  is  so  ordered. 

Mr.  Justice  McReynolds  took  no  part  in 
the  consideration  and  decision  of  this  case. 


ILLINOIS   SURETY  COMPANY,  Plff.   in 

Err., 

V. 

UNITED  STATES  to  the  use  of  J.  A. 
PEELER,  L.  M.  Peeler,  and  P.  A.  Peeler, 
Partners,  Trading  under  the  Firm  Name 
of  Faith  Granite  Company,  et  al. 

(See  S.  C.  Report^'s  ed.  214-227.) 

Action  —  prematurity  ^  suit  on  bond 


partment  of  the  basis  of  settlement  with  a 
public  contractor  fidopted  by  the  supervis- 
ing architect,  who  recommended  that  only 
actual  damages  be  charged  against  the  con- 
tractor, and  that  the  proper  voucher  be  is- 
sued in  his  favor  for  the  specific  amount 
found  to  be  the  balance  due,  is,  although 
the  check  in  payment  was  not  then  issu^, 
the  "final  settlement"  of  the  contract,  with- 
in the  meaning  of  the  provision  of  the  act 
of  August  13,  1894  (28  Stat,  at  L.  278, 
chap.  280),  as  amended  by  the  act  of  Feb- 
ruary 24,  1906  (83  Stat,  at  L.  811,  chap. 
778,  Comp.  SUt.  1913,  §  6923),  that  no  suit 
on  a  contractor's  bond  shall  be  brought  by 
persons  supplying  him  with  labor  or  ma- 
terials within  six  months  after  the  perform- 
ance and  final  settlement  of  the  contract. 
[For  other  casen.  see  Action  or  Suit,  I.  b.  In 
Digest  8ap.  Ct.  1908.] 

Pleading  «  amendment  «  curing  de- 
fective statement  of  right  of  action 
^  suit  on  bond  of  public  contractor. 

2.  The  court  may  permit  the  defective 
statement  in  the  complaint  of  an  existing 
right  of  action  by  subcontractors  under  the 
act  of  August  13,  1894  (28  Stat,  at  L.  278, 
chap.  280),  as  amended  by  the  act  of  Feb- 
ruary 24,  1005  (33  Stat,  at  L.  811,  chap. 
778,  Comp  Stat  1913,  §  6923),  upon  the 
bond  of  a  public  contractor,  to  be  corrected 
by  the  addition  of  appropriate  allegations 
showing  that  the  action  was  not  premature- 
ly brought. 

[For  other  casex,  see  Pleading,  I.  n,  in  Dleest 
Sup.  Ct,  1908.  J 

Action  «  law  or  equity  «  suit  on  bond 
of  public  contractor. 

3.  A  suit  by  laborers  and  materialmen, 
brought  in  the  name  of  the  United  States 
under  the  authority  of  the  act  of  August 
13,  1894  (28  SUt.  at  L.  278,  chap.  280), 
as  amended  by  the  act  of  February  24,  1005 
(33  Stat,  at  L.  811,  chap.  778,  Comp.  Stat. 
1913,  §  6923),  upon  the  bond  of  a  public 
contractor,  conditioned  for  the  prompt  pay- 
ment bv  him  of  all  persons  supplying  nim 
with  labor  or  material  in  the  prosecution  of 
the  work  provided  for  in  such  contract,  is 
one  at  law,  and  not  in  equity,  although  the 
statute  gives  priority  to  the  claim  or  judg- 
ment of  the  United  States,  and  provides 
that  the  aggregate  recovery  shall  not  exceed 
the  penalty  on  the  bond,  and  that  if  the 
total  amount  due  exceeds  such  penalty, 
judgment  shall  be  given  to  each  creditor 
pro  roia  of  the  amount  of  the  recovery. 
[For  other  cases,  see  Action  or  Soit,  L  a,  1. 

in  Digest  Sap.  Ct  1908.] 

Parties  *  suit  on  bond  of  public  con- 
tractor ^  substitution. 

4.  The  participation  by  an  alleged  as- 
signee solely  for  its  own  benefit  in  a  suit 
by  laborers  and  materialmen,  brought  in  the 
name  of  the  United  States,  under  the  au- 
thority of  the  act  of  August  13,  1894  (28 
Stat,  at  L.  278,  chap.  280),  as  amended  by 
the  act  of  February  24,  1905  (33  Stat,  at 
L.  811,  chap.  778,  Comp.  Stat.  1913,  §  6923), 
upon  the  fx>nd  of  a  public  contrs^ctor,  is 
not  the  equivalent  of  the  filing  of  a  claim 
on  behalf  of  the  assignor,  who  was  not  one 


of  public  contractor. 

1.  The  approval  by  the  Treasury  De-  of  the  plaintiffs,  and  on  whose  behalf  there 
«0  L.  ed.  39  009 


SVPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TwKMr 


waa  DO  Intcrrentioi 


and  doe*  not  juitify 
' I  ftTor  of  the 
I  purported  m- 


Argued  Janumrj  14,   1910.     Decided  Feb- 
ruary 21,  1918. 

IN  ERROK  bo  the  United  SUtea  Cirevlt 
Court  of  Appeals  for  the  Fourth  Circuit 
to  review  a  judgment  whicii  affirmed  ■  judg- 
ment of  the  Diitrict  Court  tor  the  Eaateru 
District  of  South  Carolina  in  (avor  of  plain- 
tiff in  a  BUit  by  aubcontracton  upon  the 
bond  of  a  public  contractor.  Modified  bj 
Btrilcing  out  a  proviaion  in  favor  of  one  of 
the  Bubcontraetora,  and  aa  tbua  modified  af- 

See  eame  case  below,  131  C.  C.  A.  476, 
215  Fed.  334. 

The  facta  are  atated  in  the  opioioD. 

Mr.  Brnnm  E.  HInion  argued  Uie  cauae 
and  filed  a  brief  for  plaiDtiff  in  error: 

The  right  of  action  is  in  equity,  and  not 
at  law. 

United  SUtea  use  of  Brading-Marshal 
Lumber  Co.  v.  VVelia,  203  Fed.  146;  Illinois 
SuTPty  Co.  ¥.  United  SUtea,  129  C.  C  A. 
6B4,  212  Fed.  136;  United  SUtea  nae  of 
Pittaburg  Planing  Mill  Co.  v.  Scheurman, 
SIB  Fed.  eiS. 

An  action  which  ia  inherently  equiUble 
in  lU  character  cannot  be  adjudicated  in  a 
court  of  law,  even  by  consent  of  the  parties. 

Tbompaon  v.  Central  Ohio  R.  Co.  6  Wall. 
134,  18  L.  ed.  766;  Lindsay  v.  Firet  Nat. 
Bank,  1S6  U.  S.  486,  39  L.  cd.  SOS,  16  Sup. 
a.  Rep.  472;  Levi  v.  Mathewa,  76  C.  C.  A. 
122,  146  Fed.  102. 

This  action   was  prematurely  brought. 

Stitser  r.  United  States,  106  C.  C  A.  61, 
182  Fed.  613;  United  SUtea  nae  of  SUrrett- 
Fielda  Co.  t.  MassachusetU  Bonding  A  Ins. 
Co.  216  Fed.  241;  UniUd  SUtes  ex  rel. 
Brown-Ketcfaam  Iron  Worlu  v.  Robinson, 
ISO  C.  0.  A.  432,  214  Fed.  38;  United  SUtes 
use  of  Wataon-FUgg  Engineering  Co.  v. 
Winkler,  162  Fed.  397;  United  SUtea  nse 
of  Chief  AU  Over  v.  Bailey,  207  Fed.  TS3. 

A  complete  exposition  of  the  govern- 
ment's method  of  settling  ite  aeoounU  will 
be  found  in  McKnlght's  Case,  13  Ct.  Q.  299. 

Each  of  the  Departments  has  more  or 
leas  different  methods  of  procedure.  The 
Treasury  Department .  has  the  method 
aliown  in  this  caae.  The  method  of  the  War 
Department  is  different  (United  SUtea  uae 
of  SUrrett-Fielda  Co.  v.  MassachusetU 
Bonding  ft  Ins.  Co.  216  Fed.  241).  The 
method  of  the  Navy  Department  appe«rt  to 
be  diffovnt  from  dther  of  thete  (Stitaor  t.  ' 
#^0 


United  States,  105  C.  C.  A.  61,  182  Fed. 
513).  The  method  of  the  Interior  Depart- 
ment appears  to  be  still  difTcrent  (Unitad 
SUtea  use  of  Chief  AU  Over  t.  Bailey,  20T 
Fed.  783). 

The  court  was  without  authority  to  rai- 
der judgment  for  the  benefit  of  the  Carolina. 
Electrical  Company. 

Miller  v.  M'Intyre,  Q  Pet.  61,  a  L.  ed.  820; 
Hewitt  V.  Pennsylvania  Steel  Co.  24  Fed. 
370;  Miller  v.  Pollock,  BB  Pa.  202;  First 
'  Nat.  Bank  v.  Sfaoetnaker,  117  Pa.  94,  2  Am. 
St.  Rep.  649,  11  Atl.  304. 

The  amended  complaint  and  petitions  did 
not  relate  back  to  the  commencement  of 
the  action. 

Lilly  V.  Charlotte,  C.  4  A.  R.  Co.  32  S.  C. 
142,  10  8.  E.  932;  Coker  v.  Monaghan  Mills, 
119  Fed.  706;  St  Louia  A  S.  F.  R.  Co.  v. 
Loughmiller,  193  Fed.  603;  Brinkmeier  r. 
Missouri  P.  R.  Co.  224  U.  S.  269,  66  L.  ed, 
759,  32  Sup.  Ct.  Rep.  412. 

Messrs,  Benjnmln  E.  Pierce  and  D.  W. 
Roblnaon  argued  the  cause,  and,  with  Mr. 
John  L.  Rendleman,  filed  a  brief  for  de- 
fendants in  error ; 

Settlement  may  mean,  and  ia  aometimea 
used  to  mean,  payment;  but  we  submit  that 
it  ia  a  much  broader  term;  It  doea  not. 
neceeaarily  mean  payment,  but,  in  iU  gen- 
erally accepted  meaning,  ia  an  adjustmeni 
or  agreement  between  the  parties  as  the- 
conclusion   of  niattera   between  them. 

United  SUtea  ex  ref.  Brown-Ketcban 
Iron  Works  v.  Robinson,  130  C.  C.  A.  432, 
214  Fed.  38;  Stitzer  v.  United  SUtes,  lOS 
C.  C.  A.  66,  182  Fed.  613;  United  SUtea 
use  of  Watson-Flagg  Engineering  Co.  t. 
Winkler,  162  Fed.  401;  United  Staten  uaa- 
of  Chief  All  Over  v.  Bailey,  207  Fed.  783; 
United  SUtes  use  of  SUrrett-Fields  Co. 
V.  MaasachusetU  Bonding  A  Ina.  Co.  21S 
Fed.  243;  Bouvier'a  Law  Diet.  Settlement; 
Century  Diet.  Settlement;  Rose  v.  Bradley, 
01  Wis.  619,  66  N.  W.  609;  Sims  t.  Waters, 
65  Ala.  442;  Phipps  v.  WillU,  63  Or.  IBO, 
B6  Pac.  866,  99  Pac.  935,  18  Ann.  Cm.  119; 
Toombs  V.  Stockwcll,  131  Mich.  633,  92  N. 
W.  288;  Auierau  v.  Naglee,  74  Cal.  60,  1ft- 
Pac.  371;  Greene  County  t.  light,  72  Ark. 
41,  77  S.  W.  916;  Miller  t.  Conaolidatad 
Patrons  &  F.  Mut.  Ins.  Co.  113  Iowa,  211, 
84  N.  W.  1049;  Jackson  v.  Ely,  67  Ohio  St. 
460,  49  N.  E.  792;  Pomeroy  T.  MiUs,  ST 
N.  J.  Eq.  678;  Alben  v.  MerchanU'  Excb. 
140  Mo.  App.  446,  120  S.  W.  139;  Roberto 
V.  Spencer,  112  Ind.  86,  13  N.  £.  129;  7 
Words  *   Phrases,   6446,   6447.  and  oases. 

The  settlement  made  by  the  Department, 

and    ite   rulings   and   constructions   of   th* 

aUtntea,  are  entitled  to  and  are  given  great 

weight  by  the  courts. 

United  SUtes  t.  Cerecedo  Hermanoa  T 

S40  V.  S. 


1915. 


ILLINOIS  SURETY  CO.  v.  UNITED  STATES. 


CkMopafiia,  200  U.  8.  330,  52  L.  ed.  821,  28 
Siq>.  Ct.  Rep.  532;  Jacobs  ▼.  Prichard,  223 
U.  S.  214,  56  L.  ed.  400,  32  Sup.  Ct.  Rep. 
280;  United  States  v.  Hammers,  221  U.  S. 
225,  226,  55  L.  ed.  714,  715,  31  Sup.  a. 
Hep.  503. 

It  is  the  settled  policj  of  the  court 
that  this  act  shall  receive  a  liberal  con- 
struction so  as  to  advance  its  purpose. 

United  States  use  of  Hill  ▼.  American 
Surety  Co.  200  U.  S.  208,  50  L.  ed.  440,  26 
Sup.  Ct.  Rep.  168;  Mankin  v.  United  States, 
215  U.  S.  530,  54  L.  ed.  317,  30  Sup.  Ct.  Rep. 
174;  Title  Guaranty  ft  T.  Co.  t.  Crane  Co. 
210  U.  S.  33,  34,  55  L.  ed.  77,  31  Sup.  Ct. 
Rep.  140;  United  States  use  of  Alexander 
Bryant  Co.  v.  New  York  Steam  Fitting  Co. 
235  U.  S.  327,  50  L.  ed.  253,  35  Sup.  Ct.  Rep. 
108;  Title  Guaranty  ft  T.  Co.  v.  Puget 
Sound  Engine  Works,  80  C.  C.  A.  624,  163 
Fed.  168;  Equitable  Surety  Co.  t.  United 
States,  234  U.  S.  455,  456,  58  L.  ed.  1306, 
1307,  34  Sup.  Ct.  Rep.  803;  United  States 
V.  Freeman,  8  How.  556,  11  L.  ed.  724. 

The  amendment  was  clearly  within  U.  S. 
Rev.  SUt.  §  054,  Comp.  Stat.  1013,  §  1591 ; 
McDonald  ▼.  Nebraska,  41  C.  C.  A.  284,  101 
Fed.  171;  4  Fed.  Stat.  Anno.  507,  and  cases; 
2  Fed.  Stat.  Anno.  Supp.  1443,  1444;  Texas 
ft  P.  R.  Co.  T.  Cox,  145  U.  S.  503,  597,  606, 
36  L.  ed.  820,  831,  833, 12  Sup.  Ct.  Rep.  005; 
Missouri,  K.  ft  T.  R.  Co.  ▼.  Wulf ,  226  U.  S. 
576,  57  L.  ed.  363,  33  Sup.  Ct.  Rep.  135,  Ann. 
Cas.  1014B,  134;  Athintio  ft  P.  R.  Co.  v. 
Laird,  164  U.  S.  401,  41  L.  ed.  488,  17  Sup. 
Ct.  Rep.  120. 

The  law  of  the  United  States  governs, 
and  not  the  law  or  rules  of  the  particular 
state. 

Mexican  C.  R.  Co.  t.  Duthie,  189  U.  S.  78, 
47  L.  ed.  717,  23  Sup.  Ct.  Rep.  610;  Van 
Doren  y.  Pennsylvania  R.  Co.  35  C.  C.  A. 
200,  03  Fed.  260;  Manitowoc  Malting  Co.  v. 
Fuechtwanger,  160  Fed.  083. 

The  statute  invests  the  courts  of  the 
United  States  with  large  discretion  in  per- 
mitting the  correction  of  defects  in  plead- 
ings and  process  by  amendment,  and  rulinics 
of  this  character  constitute  no  ground  for 
reversal  unless  the  discretion  is  grossly 
abased. 

Great  Northern  R.  Co.  v.  Herron,  68  C.  C. 
A.  601,  136  Fed.  40;  Mexican  C.  R.  Co.  v. 
Dothie,  180  U.  S.  78,  47  L.  ed.  717,  23  Sup. 
Ct.  Rep.  610. 

Where  the  question  of  failure  of  plead* 
ings  to  show  jurisdiction  is  raised  in  the 
trial  court,  it  ^uld  permit  amendment  for 
the  purpose  of  remedying  the  defect.  Where 
the  Supreme  Court  has  reversed  and  re- 
manded the  cause  for  failure  of  record  to 
show  Juriadiction  in  the  lower  court,  the 
latter  may  permit  amendment  to  show  that 
jurisdiction  really  existed  when  suit  was 
60  L.  ed. 


brought,  if  the  facts  warrant  it.  Or  the 
Supreme  Court,  in  its  mandate,  may  direct 
that  amendment  be  permitted. 

1  Rose's  Code  of  Fed.  Proc.  §  0,  p.  65; 
Howard  v.  De  Cordova,  177  U.  S.  614,  44  L. 
ed.  010,  20  Sup.  Ct.  Rep.  817 ;  King  Bridge 
Co.  ▼.  Otoe  County,  120  U.  S.  227,  30  L.  ed. 
624,  7  Sup.  Ct.  Rep.  552;  Springstead  v. 
Crawfordsville  State  Bank,  231  U.  S.  542,  58 
L.  ed.  856,  34  Sup.  Ct.  Rep.  105;  ^enard  v. 
Goggan,  121  U.  S.  253,  30  L.  ed.  014,  7  Sup. 
Ct.  Rep.  873;  Metcalf  v.  Watertown,  128 
U.  S.  500,  32  L.  ed.  544,  0  Sup.  Ct.  Rep.  173 ; 
Campbell  v.  Johnson,  02  C.  C.  A.  566,  167 
Fed.  102. 

Whether  we  consider  the  conditions  pre- 
scribed by  the  statute  in  the  nature  of  a 
statute  of  limitation  or  as  an  essential  con- 
dition to  the  success  of  plaintiffs  right, 
any  amendment  relates  to  the  commence- 
ment of  the  action,  and  the  limitation  of 
six  months  and  one  year,  respectively,  runs 
to  the  original  commencement  of  the  ac- 
tion, and  not  to  the  date  of  the  amend- 
ment. 

Patilk)  V.  Allen -West  Conunission  Co.  65 
C.  C.  A.  510,  131  Fed.  680;  Armstrong  Cork 
Co.  V.  Merchants'  Refrigerating  Co.  107  C. 
C.  A.  00,  184  Fed.  190;  McDonald  v.  Ne- 
braska, 41  C.  C.  A.  287,  101  Fed.  171 ;  Van 
Doren  v.  Pennsylvania  R.  Co.  85  C.  C.  A. 
203,  03  Fed.  271;  Sanger  v.  Newton,  134 
Mass.  308. 

The  rights  of  interveners  in  this  case  are 
in  nowise  affected  by  a  nonsuit  of  plain- 
tiff. 

United  States  use  of  Port  Blakely  Mill 
Co.  V.  Massachusetts  Bonding  ft  Ins.  Co.  108 
Fed.  027 ;  Title  Guaranty  ft  T.  Co.  v.  Crane 
Co.  210  U.  S.  24,  55  L.  ed.  72,  31  Sup.  Ct. 
Rep.  140;  Title  Guaranty  ft  T.  Co.  v.  Puget 
Sound  Engine  Works,  80  C.  C.  A.  618,  163 
Fed.  168;  17  Am.  ft  Eng.  Enc.  Law,  2d  ed. 
185;  11  Enc.  PI.  ft  Pr.  500;  Poehhnann  v. 
Kennedy,  48  Cal.  207. 

The  court  had  a  right,  and  it  was  its 
duty,  to  render  judgment  in  favor  of  the 
real  party  in  interest  without  regard  to  the 
matter  of  form,  and  to  make  such  one  a 
real  party  to  the  action. 

Missouri,  K.  ft  T.  R.  Co.  v.  Wulf,  226 
U.  S.  576,  57  L.  ed.  363,  33  Sup.  Ct.  Rep. 
135,  Ann.  Cas.  1014B,  134;  McDonald  v. 
Nebraska,  41  C.  C.  A.  287,  101  Fed.  171. 

The  proceeding  under  this  statute  is  an 
action  at  law. 

United  States  v.  Congress  Constr.  Co.  222 
U.  S.  100,  56  L.  ed.  163,  82  Sup.  Ct.  Rep. 
44;  United  States  use  of  Gibson  Lumber 
Co.  T.  Boomer,  106  C.  C.  A.  164,  183  Fed. 
726;  Stitxer  v.  United  States,  105  C.  C.  A. 
51,  182  Fed.  513;  Baker  Contract  Co.  v. 
United  States,  122  C.  C.  A.  561,  204  Fed. 
300;  Eberhart  v.  United  States,  123  C.  C. 


21G,  sie 


BUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Txui, 


A.  181,  204  Fed.  884;  United  SUtea  Fidel- 
ity A  G.  Co  V.  United  SUtei,  209  U.  S.  308, 
62  L.  ed.  804,  28  Sup.  Ct.  Rep.  637;  United 
^tatei  use  uf  Hill  v,  Ainertc&n  Suretj  Co. 
200  U.  S.  107,  50  L.  ed.  437,  28  Sup.  a.  Hop. 
188;  Mankin  v.  United  SUtea,  215  U.  S.  633, 
638,  64  L.  ed.  315,  317,  30  Sup.  Ct.  Rep.  174; 
United  SUtee  v.  Frcel,  188  U.  S.  300,  312, 
4«  L.  ed.  IITT,  1179,  22  8up.  Ct.  Rep.  876; 
United  Statea  Fidelity  £  G.  Co.  t.  United 
SUtes,  204  U.  8.  349,  51  L.  ed.  618,  27  Sup. 
Ct.  Bep.  381;  Davidson  Broa.  Marble  Co.  v. 
United  States,  213  U.  S.  10,  63  L.  ed.  076, 
20  Sup.  Ct.  Rep.  324;  United  States  use  of 
Alexander  Bryant  Co.  v.  New  York  Steam 
Fitting  Co.  233  U.  S.  327,  50  L.  ed.  253,  35 
Sup.  Ct-  Rep.  108;  United  States  ex  rel. 
Teraa  Portland  Cement  Co.  v.  McCord,  233 
U.  S.  167,  58  L.  ed.  803,  34  Sup.  Ct.  Hep. 
660,  133  C.  C.  A-  074.  218  Fpd.  901;  United 
States  <x  rel.  Brown-Ketcbani  Iron  Works 
r.  Robinson,  130  C.  C.  A.  434,  214  Fed.  38; 
United  Slates  v.  United  SUtes  Fidelity  4 
a.  Co.  23ti  U.  S.  512,  69  L.  ed.  606,  35  Hup. 
Ct.  Rej>.  2<)8,  110  C.  C.  A.  187,  194  Fed.  611. 

Messrs.  Arthur  W.  Fairchild,  Edwin  S. 
Mack,  And  Georse  P.  NJilter.  as  amiei  curia, 
filed  a  brier  on  behalf  of  the  Weatera  Lime 
&  Ceirient  Company; 

Before  a  suit  maj'  be  commenced  under 
this  statute,  tiiere  must  be  both  complete 
performanoe  of  Ihe  contract  and  final  set- 
tlement of  the  contract. 

United  SUtes  ex  rel.  Texas  Portland  Ce- 
ment Co.  V.  McCord,  233  U.  S.  157,  58  L.  ed. 
893.  34  Sup.  Ct.  Kep.  6.^0;  United  SUtes  ex 
rel.  Proctor  Mtg.  Co.  v.  Staiinard,  207  Fed. 
201 1  United  Stales  use  of  Chief  All  Over  v- 
Bailey,  207  Fed.  782;  Stitier  v.  United 
States,  106  C.  C.  A.  51,  182  Fed.  513;  United 
States  use  of  Starrett-Fields  Co.  t.  Mas- 
sachusettB  Bondini;  &  Ins.  Co.  216  Fed.  241. 

"Settlement"'  means  an  adjustment  of  dif- 
ferences bv  aj^epment. 

.15  (.'yc."l443. 

The  real  (rround  of  the  decision  below 
was  that  there  was  an  adjustment  by  agree- 
ment,—a  proposition  finding  support  in 
other  decisions. 

IllinoU  Surety  Co.  t.  United  States,  131 
C.  C.  A.  476,  216  Fed.  334;  United  States 
V.  niinoia  Surety  Co.  141  C.  C.  A.  409,  226 
Fed.  662;  Stitzer  r.  United  SUtes,  106  C. 
C  A.  U,  162  Fed.  G13. 

If,  in  the  sUtute  under  consideration, 
the  words  "final  settlement"  refer  to  the 
same  thing  referred  to  by  the  words  "set- 
tled" and  "settlement,"  used  in  reference 
to  the  settlement  and  adjustment  of  claima 
and  demands  a^'ainst  the  United  SUUs  in 
the  Department  of  the  Treasury,  we  have 
then  poinUd  out  to  alt  persona  interested 
the  action  for  which  they  muat  be  on  the 
0H 


alert,  and  the  office  in  which  they  are  to 
seek  tor  the  information.  There  ia  fixed, 
with  a  reasonable  degree  of  definiteness,  tba 
thing,  or  action,  which  determine!  the  date 
of  final  settlement.  It  is  the  only  reason- 
able construction  U  be  given  to  the  act  If 
the  ordinary  rule  ia  not  to  \m  followed. 

United  SUtea  use  of  Chief  AU  Over  t. 
Bailey,  207  Fed.  782;  Uulted  SUtei  use  of 
SUrrett-Fielda  Co.  v.  Maauehuaetto  Bond- 
ing &.  Ine.  Co.  21S  Fed.  241. 

Mr.  Justice  Hngbes  delivered  the  opinion 
of  the  court; 

This  action  was  brought  by  subeontraet- 
ora  under  the  ai:t  of  August  13,  18B4  (28 
Stat,  at  L.  278,  chap.  280),  aa  amended  hf 
the  act  of  February  24,  IBOS  (33  8Ut.  at  L. 
SI!,  chap.  77H,  Conip.  Slat.  1913,  §  6023), 
in  the  name  of  the  United  SUtei,  to  reeover 
upon  a  contractor's  bond.  The  contract  wu 
for  the  construction  of  a  postoffiee  building 
in  Aiken,  South  Carolina  (35  SUt.  at  L. 
62S,  628,  chap.  228),  and  the  lUinoli 
Surety  Company  (plaintilT  in  error) 
uaa  the  aurcty.  TIic  summons  and 
complaint  were  filed  on  March  4,  191S. 
Motion  to  dismias  was  made  on  Sep- 
tember 22,  1B13,  upon  the  ground  that 
the  complaint  did  not  allege  that  there  had 
been  a  completion  and  final  settlement  of 
the  contract  between  the  contractor  and  tha 
United  SUtes;  or  that  there  had  been  audi 
completion  and  settlement  more  than  aiz 
months,  and  within  one  year,  prior  to  tba 
commeni^enieiit  of  the  action.  [216]  An- 
other ground  for  the  motion  was  that  the 
remedy  under  the  statute  was  in  equity.  The 
motion  was  denied,  the  court  permitting  th* 
complaint  to  be  amended  so  as  to  allege  that 
the  contract  was  completed  in  July,  1B12; 
that  final  settlement  waa  made  by  Dm  ' 
Treasury  Department  on  August  21,  IB12; 
and  that  no  suit  had  been  brought  by  the 
United  Ststes  againat  the  contractor  and  hia 
surety  within  the  six  months'  period  The 
defendant,  reserving  iU  objection  to  the 
order  denying  the  motion  and  allowing 
the  amendment,  answered.  Jury  trial  wu 
waived  by  written  stlpatatiou  and  the  ca« 
was  heard  by  the  district  judge,  who  fonnd, 
in  sutiaUnce,  the  facU  to  be  as  followa; 

That  the  building  waa  completed,  and  oa 
August  21,  1912,  the  Treasury  Departmcst 
"sUUd  and  determined  the  final  balaaea'  to 
be  paid  the  contractor  under  the  oonttaot 
at  the  sum  of  tS.SBB.Ol;  that  thia  "adjaafr- 
ment  and  determination"  waa  eommiml- 
cated  to  the  contraotor;  that  on  Angmt 
26,  1012,  a  voucher  of  that  dat«  wu  pc*- 
pared  by  the  Department,  showing  the  bal- 
ance, as  above  sUted,  to  which  the  om- 
tractor  appended  his  signature,  certifying 
the  amount  to  be  correct,  and  that  <M 
140  U.  B. 


1»15. 


ILLIKOIS  SURETY  CO.  t.  UNITED  STATES. 


216-219 


that  day  there  was  a  definite  acceptance 
bj  the  contractor  of  the  adjustment; 
that  on  September  11,  1912,  a  check  for 
the  above-mentioned  sum  was  made  out 
by  the  disbursing  clerk  of  the  Department, 
payable  to  the  order  of  the  contractor,  who 
thereafter  collected  it;  that  upon  the  re- 
quest of  the  relator  (the  Faith  Granite 
Company)  the  Secretary  of  the  Treasury, 
on  January  16,  1013,  furnished  to  it  a  certi- 
fied copy  of  the  contract  and  bond,  and 
that  on  the  6th  day  of  March,  1013,  .  .  . 
the  present  action  was  instituted  by  the 
filing.  .  .  .  and  by  service  of  summons 
and  complaint  on  defendant  Surety  Com- 
pany." It  also  appeared  that  no  action  had 
been  instituted  by  the  United  States  upon 
the  bond  within  the  six  months  allowed  by 
the  statute. 

[217]  The  district  court  gave  judgment 
for  amounts  found  to  be  due  to  those  for 
whose  benefit  the  action  was  brought,  and 
to  certain  interveners,  and  this  judgment 
was  afiirmed  by  the  circuit  court  of  appeals, 
131  C.  C.  A.  476,  215  Fed.  334.  The  conten- 
tions presented  are:  (1)  That  the  action 
was  instituted  prematurely;  (2)  that  the 
amendment  of  the  complaint  was  improper- 
ly allowed;  (8)  that  there  was  no  right  of 
action  at  law;  and  (4)  that  the  court  erred 
in  giving  judgment  for  the  Carolina  Elec- 
trical Company,  one  of  the  subcontractors. 

1.  The  statute  provides:  "If  no  suit 
ahonld  be  brought  by  the  United  States 
within  six  months  from  the  completion  and 
final  settlement  of  said  contract,  then  the 
person  or  persons  supplying  the  contractor 
^th  labor  and  materials  shall,  upon  appli- 
cation therefor,  and  furnishing  affidavit 
•  •  .  be  furnished  with  a  certified  copy 
of  said  contract  and  bond,  upon  which  he  or 
^ey  shall  have  a  right  of  action,  and  shall 
1^1  and  arc  hereby,  authorized  to  bring  suit 
^^  the  name  of  the  United  States  .  .  . 
against  said  contractor  and  his  sureties,  and 
^  prosecute  the  same  to  final  judgment  and 
«ecution;  Provided,  That  ...  it  shall 
iiot  be  commenced  until  after  the  complete 
P^i'formance  of  said  contract  and  final 
*^tlement  thereof,  and  shall  be  commenced 
Within  one  year  after  the  performance  and 
final  settlement  of  said  contract,  and  not 
^ter."  In  United  States  ex  rel.  Texas  Port- 
land Cement  Co.  v.  McCord,  i  233  U.  S.  167, 
^^  L.  ed.  803,  34  Sup.  Ct.  Rep.  650,  we  said 
^^  this  act  created  a  new  right  of  action 
^pon  terms  named;  and  hc^cc  that  an 
action  brought  by  creditors  before  six 
iBODths  had  expired  from  the  time  of  the 
"completion  and  final  settlement  of  the  con* 
tnct"  could  not  be  sustained.    In  the  pres- 

iThe  statute  is  set  forth  in  full  in  the 
aiirgin  of  the  opinion  in  the  case  cited. 
••  L.  ad. 


ent  case,  the  plaintiff  in  error  insists  that 
I  there  was  no  fi,nal  settlement  within  the 
meaning  of  the  statute  prior  to  the  issue  of 
the  check  [218]  for  payment  to  the  con- 
tractor on  September  11,  1012,  and  that  in 
this  view  the  action  was  brought  too  soon. 

It  was  evidently  the  purpose  of  the  act  of 
1005  to  remedy  the  defect  in  the  act  of  1804 
by  assuring  to  the  United  States  adequate 
opportunity  to  enforce  its  demand  against 
the  contractor's  surety,  and  priority  with 
respect  to  such  demand.  Mankin  v.  United 
States,  215  U.  S.  533,  538,  54  L.  ed.  315, 
317,  30  Sup.  Ct.  Rep.  174;  United  States  ex 
rel.  Brown-Ketcham  Iron  Works  v.  Robin- 
son, 130  C.  C.  A.  432,  214  Fed.  38,  30,  40. 
Accordingly  it  was  provided  that  if  the 
United  States  sued  upon  the  bond,  the  de- 
scribed creditors  should  be  allowed  to  inter- 
vene, and  be  made  parties  to  the  action,  but 
subject  "to  the  priority  of  the  claim  and 
judgment  of  the  United  States."  And  it 
was  only  in  case  the  United  States  did  not 
sue  within  the  specified  period  that  the 
creditors  could  bring  their  action.  With 
this  object  in  view, — ^to  protect  the  priority 
of  the  United  States,  and  at  the  same  time 
to  give  a  remedy  to  materialmen  and  labor* 
ers  on  the  contractor's  bond  and  a  reason- 
able time  to  prosecute  it  (United  Ststes 
use  of  Alexander  Bryant  Co.  v.  New  York 
Steam  Fitting  Co.  235  U.  S.  327,  337,  50  L. 
ed.  253,  257,  35  Sup.  Ct.  Rep.  108),— it  was 
natural  that  the  time  allowed  exclusively 
for  action  by  the  government  should  begin 
to  run  when  the  contract  had  been  com- 
pleted, and  the  government,  in  its  final 
adjustment  and  settlement  according  to 
established  administrative  methods,  had  de- 
termined what  amount,  if  any,  was  due.  Then 
the  government  would  have  ascertained  the 
amount  of  its  claim,  if  it  had  one,  and  could 
bring  suit  if  it  desired.  As  such  determina- 
tions are  regularly  made  in  the  course  of 
administration,  nothing  would  seem  to  be 
gained  by  postponing  the  date,  from  which 
to  reckon  the  six  months,  to  the  time  of  pay- 
ment. Indeed,  if  an  amount  were  found  to 
be  due  from  the  contractor,  and  he  was  in- 
solvent, there  might  be  no  payment,  and,  if 
payment  were  essential,  there  would  be  no 
date  from  which  the  time  for  the  bringing 
of  the  creditors'  action  could  be  computed. 

The  pivotal  words  are  not  "final  payment," 
but  "final  [210]  settlement,"  and  in  view 
of  the  significance  of  the  latter  term  in 
administrative  practice,  it  is  hardly  likely 
that  it  would  have  been  used  had  it  been 
intended  to  denote  payment.  See  United 
States  V.  Illinois  Surety  Co.  105  Fed.  306, 
300;  United  States  use  of  Chief  All  Over  t. 
Bailey,  207  Fed.  782,  784;  United  States  ez 
rel.  Brown-Ketcham  Iron  Works  t.  Robin- 
son (C.  0.  A.  2d  0.)  iupra;  United  Statei 


219-221 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbk» 


use  of  StArrett-Fields  Co.  t.  Massachusetts 
Bonding  &  Ins.  Co.  2]  5  Fed.  241,  244; 
United  States  use  of  John  Davis  Co.  v. 
lUinois  Surety  Co.  (CCA.  7th  C)  226 
Fed.  653,  662.  The  word  ''settlement,"  in 
connection  with  public  transactions  and  ae* 
counts,  has  been  used  from  the  beginning  to 
describe  administrative  determination  of  the 
amount  due.  By  the  act  of  September  2, 
1789,  chap.  12  (1  Stat,  at  L.  65,  Comp.  Stat. 
1913,  §  235),  establishing  the  Treasury  De- 
partment, the  Comptroller  was  charged  with 
the  duty  of  examining  "all  accounts  settled 
by  the  auditor."  (§3.)  And  it  was  made 
the  duty  of  the  auditor  to  receive  "all  pub- 
lic accounts  and  after  examination  to  certi- 
fy the  balance,"  subject  to  the  provision 
that  any  person  whose  account  should 
be  so  audited  might  appeal  to  the 
iomptroller  "against  such  settlement" 
The  act  of  March  3,  1809,  chap.  28, 
§  2  (2  Stat.  at'L.  536,  Comp.  Stat. 
1913,  §  406),  gave  authority  to  the 
Comptroller  to  direct  the  auditor  forthwith 
"to  audit  and  settle  any  particular  ac- 
count" which  he  was  authorized  to  audit' 
and  settle,  and  "to  report  such  settlemenf* 
for  his  revision  and  final  decision.  (See 
Rev.  Stat.  §  271.)  By  the  act  of  March  3, 
1817,  chap.  45,  §  2)  3  Stat,  at  L.  306,  Comp. 
SUt.  1913,  §  308),  it  was  provided  that  "all 
claims  and  demands  whatever,  by  the  Unit- 
ed States  or  against  them,  and  all  accounts 
whatever,  in  which  the  United  States  are 
concerned,  either  as  debtors  or  as  creditors, 
shall  be  settled  and  adjusted  in  the  Treas* 
ury  Department."  This  provision  was  car- 
ried into  §  236  of  the  Revised  Statutes 
(Comp.  Stat.  1913,  §  368).  The  words 
"settled  and  adjusted"  were  taken  to  mean 
the  determination  in  the  Treasury  Depart- 
ment for  administrati\  (*  purposes  of  the 
state  of  the  account  and  the  amount  due. 
See  2  Ops.  Atty.  Gen.  518,  625,  629,  630.  R*^ 
ferring  [220]  to  this  provision,  it  was  said 
by  Mr.  Chief  Justice  Waite,  in  delivering 
the  opinion  of  the  court  in  Cooke  v.  United 
States,  91  U.  S.  889,  399,  23  L.  ed.  237,  243: 
"Thus  it  is  seen  that  all  claims  against  the 
United  States  are  to  be  settled  and  adjusted 
'in  the  Treasury  Department;'  and  that  is 
located  'at  the  seat  of  government.'  The  as- 
sistant-treasurer in  New  Toric  is  a  custo* 
dian  of  the  public  money,  which  he  naay  pay 
out  or  transfer  upon  the  order  of  the  proper 
department  or  officer;  but  he  has  no  author- 
ity to  settle  and  adju9t,  that  is  to  say,  to 
determme  upon  the  validity  of,  any  claim 
against  the  government.  He  can  pay  only 
after  the  adjustment  has  been  made  'in  the 
Treasury  Department,'  and  then  upon  drafts 
drawn* for  that  purpose  by  the  treasurer." 
Again,  the  act  of  July  31,  1894,  chap.  174 
(28  Stat,  at  L.  162,  206-208,  Comp.  Stat. 
•14 


1913,  S§  57,  425),  relating  to  the  examin»> 
tion  of  accounts  by  auditors,  and  revisions 
of  accounts,  etc,  provides,  in  §  8,  that  "the 
balances  which  may  from  time  to  time  be 
certified  by  the  auditors  to  the  Division  of 
Bookkeeping  and  Warrants  or  to  the  Post- 
master General  upon  the  settlements  of  pub- 
lic accounts  shall  be  final  and  conclusive 
upon  the  executive  branch  of  the  govern- 
ment," except  that  any  person  whose  ac 
counts  may  have  been  "settled,"  the  head  of 
the  executive  department,  etc.,  to  which  the 
account  pertains,  or  the  Comptroller  of  the 
Treasury,  may,  witliin  a  year,  obtain  a  re' 
vision  in  the  manner  stated ;  also  that  "any 
person  accepting  payment  under  a  settle* 
ment  by  an  auditor  shall  be  thereby  pre- 
cluded from  obtaining  a  revision  of  such 
settlement  as  to  any  items  from  which  pay 
ment  is  accepted;"  and,  further,  that  "when 
suspended  items  are  finally  settled  a  revi- 
sion may  be  had  as  in  the  case  of  the  origi- 
nal settlement."  By  the  act  of  May  28, 
1896,  chap.  252,  §  4  (29  Stat,  at  L.  140, 
179,  Comp.  Stat.  1913,  §  390),  the  Secretary 
of  the  Treasury  was  directed  to  make  report 
annually  to  Congress  of  such  oflicers  as  were 
found  "upon  final  settlement  of  their  ac- 
counts" to  have  been  indebted  to  the  govern- 
ment, [221]  and  to  have  failed  to  pay  the 
amount  of  their  indebtedness  into  the 
Treasury. 

We  should  not  say,  of  course,  that  in- 
stances may  not  be  found  in  which  the 
word  "settlement"  has  been  used  in  acts 
of  Congress  in  other  senses,  or  in  the  sense 
of  "payment."  But  it  is  apparent  that  the 
word  "settlement"  in  connection  with  pub- 
lic contracts  and  accounts,  which  are  the 
subject  of  prescribed  scrutiny  for  the  pur- 
pose of  ascertaining  the  rights  and  obliga- 
tions of  the  United  States,  has  a  well-de- 
fined meaning  as  denoting  the  appropriate 
administrative  determination  with  respect 
to  the  amount  due.  We  think  that  the 
words  "final  settlement"  in  the  act  of  1005 
had  reference  to  the  time  of  this  determi- 
nation when,  so  far  as  the  government  was 
concerned,  the  amount  which  it  was  finally 
bound  to  pay  or  entitled  to  receive  was  fixed 
administratively  by  the  proper  authority. 
It  is  manifestly  of  the  utmost  importance 
that  there  should  be  no  uncertainty  in  the 
time  from  which  the  six  months'  period 
runs.  The  time  of  the  final  administrative 
determination  of  the  amount  due  is  a  defi- 
nite time,  fixed  by  public  record  and  readily 
ascertained.  As  an  administrative  matter, 
it  does  not  depend  upon  the  consent  or 
agreement  of  the  other  party  to  the  eon- 
tract  or  account.  The  authority  to  make 
it  may  not  be  suspended,  or  held  in  abey- 
ance, by  refusal  to  agree.  Whether  the 
amount  so  fixed  is  due,  in  law  and  fact,  un- 

240  U.  8. 


1015. 


ILLINOIS  SUTRETY  CO.  t.  UNITED  STATES. 


221-224 


^onbtodly  remains  a  question  to  be  adjudi- 
cated, if  properly  raised  in  judicial  pro- 
ceedings, but  this  does  not  afTect  the 
running  of  the  time  for  bringing  action  un- 
•der  the  statutory  provision. 

In  the  present  case,  the  construction  of 
the  building  was  in  charge  of  the  Secretary 
of  the  Tronsiiry  and  under  the  general 
•■upervision  of  the  supervising  architect. 
Tlie  Secretary  of  the  Treasury  was  author- 
ized to  remit  the  whole  or  any  part  of  the 
stipulated  liquidated  damages  as  in  his  dls- 
•cretion  might  be  just  and  equitable.  [222] 
Act  of  June  6,  1002,  32  Stat,  at  L.  326, 
chap.  1036,  Comp.  Stat.  1013,  §  6022.  On 
August  21,  1012,  the  supervising  archi- 
tect having  received  the  certificate  of  the 
<^ef  of  the  technical  division  of  the 
office  that  all  work  embraced  in  the 
contract  had  been  satisfactorily  completed, 
made  his  statement  of  the  amount  finally 
due,  recommending  that  only  the  actual 
•damage  (as  stated)  be  charged  against  the 
contractor,  and  tliat  the  proper  voucher 
ahould  be  issued  in  favor  of  the  contractor 
for  the  balance,  to  wit,  $3,000.01.  And,  on 
the  same  date,  this  recommendation  was 
approved  and  actual  damages  charged  ac- 
cordingly by  direction  of  the  Secretary  of 
the  Treasury.  This,  in  our  judgment,  was 
the  "final  settlement"  of  the  contract  with- 
in the  meaning  of  the  act.  We  understand 
that  tlie  administrative  construction  of  the 
act  has  been  to  the  same  effect.  The  regu- 
lation of  the  Treasury  Department,  as  it 
appears  from  its  circular  issued  for  the 
information  of  persons  interested  in  claims 
for  materia]  and  labor  supplied  in  the  prose- 
cution of  work  on  buildings  under  the  con- 
trol of  that  Department  (Dept.  Cire.  No. 
45,  Sept.  12,  1012),  la  at  follows:  "The 
Department  treats  as  the  date  of  final  set- 
tlement mentioned  in  said  acts"  (referring 
to  the  Acts  of  1804  and  1005,  supra),  "the 
date  on  which  the  Department  approves  the 
basis  of  settlement  under  such  contract 
recommended  by  the  supervising  architect, 
and  orders  payment  accordingly." 

We  conclude  that  the  action  was  not 
brought  prematurely. 

2.  With  respect  to  the  amendment  of  the 
complaint,  it  is  apparent  that,  as  there  was 
an  existing  right  of  action  under  the  stat- 
ute at  the  time  the  suit  was  brought,  the 
case  was  not  within  the  decision  in  United 
States  ex  rel.  Texas  Portland  Cement  Co.  t. 
McCord,  233  U.  S.  157,  58  L.  ed.  803,  34 
Sup.  Ct.  Kep.  550.  No  new  or  different 
cause  of  action  was  alleged  in  the  amended 
complaint.  The  court  merely  permitted  the 
defective  statement  of  the  existing  right  to 
be  corrected  by  the  addition  of  appropriate 
allegations,  [223]  and  in  this  there  was  no 
error.  Rev.  Stat.  §  054,  C>>mp.  Stat.  1013, 
«0  Ia.  ed. 


§  1501;  Missouri,  K.  &  T.  R.  Co.  t.  Wolf, 
226  U.  S.  570,  576,  57  L.  ed.  355,  363,  33 
Sup.  Ct.  Rep.  135,  Ann.  Caa.  1014B,  134. 

3.  It  is  contended  that  the  right  given 
by  the  statute  to  the  described  creditors  ia 
of  an  equitlible  nature,  and  that  the  court 
erred  in  permitting  recovery  at  law.  The 
objection  in  the  present  case  is  merely  tech* 
nical,  as  the  parties  stipulated  to  waive 
trial  by  jury,  and  the  case  waa  heard  and 
decided  by  the  district  judge  upon  faets 
about  which  there  is  no  dispute.  The  ques- 
tion has  not  been  raised  heretofore  in  this 
court,  but  it  has  been  aasumed  in  many 
cases  that  the  action  to  be  brought  under 
the  statute  upon  the  contractor's  bond, 
whether  the  action  were  instituted  by  the 
United  States  (United  States  v.  Congress 
Constr.  Co.  222  U.  S.  100,  56  L.  ed.  163, 
32  Sup.  Ct.  Rep.  44),  or  by  creditors  in  the 
name  of  the  United  States,  was  an  action 
at  law.  United  States  Fidelity  &  G.  Co.  v. 
United  States,  200  U.  S.  306,  52  L.  ed. 
804,  28  Sup.  Ct.  Rep.  537;  Mankin  v.  Unit- 
ed States,  215  U.  S.  533,  54  L.  ed.  315,  30 
Sup.  Ct.  Rep.  174;  Title  Guaranty  k  T.  Co. 
V.  Crane  Co.  210  U.  S.  24,  35,  55  L.  ed.  72, 
77,  81  Sup.  Ct.  Rep.  140;  United  States  ex 
rel.  Alexander  Bryant  Co.  v.  New  York 
Steam  Fitting  Co.  235  U.  S.  327,  50  L.  ed. 
253,  35  Sup.  Ct.  Rep.  108.  In  Title  Guar- 
anty ft  T.  Co.  V.  Crane  Co.  210  U.  S.  24,  35, 
55  L.  ed.  72,  77,  31  Sup.  Ct.  Rep.  140,  a 
question  arose  as  to  the  propriety  of  allow- 
ing a  docket  fee  to  each  claimant.  Section 
824  of  the  Revised  Statutes  (Comp.  Stat. 
1013,  §  1378),  provides  for  a  docket  fee  of 
$10  "in  cases  at  law,  when  judgment  h 
rendered  without  a  jury."  The  court  said: 
"The  allowance  of  a  docket  fee  of  $10  to 
each  claimant  appears  to  us  to  be  correct. 
Rev.  Stat.  §  824.  The  claims  are  several 
and  represent  distinct  causes  of  action  in 
different  parties,  although  consolidated  in 
a  single  suit."  In  the  circuit  and  district 
courts  and  in  the  circuit  courts  of  appeals, 
while  it  Seems  that  objection  has  rarely 
been  made,  there  has  been  almost  complete 
uniformity  in  treating  the  creditors'  action 
under  the  act  of  1005  as  one  at  law.  See 
United  States  use  of  Wataon-Flagg  En- 
gineering Co.  V.  Winkler,  162  Fed.  307; 
Stitzer  v.  United  States  (C.  C.  A.  3d  C.) 
105  C.  C.  A.  51,  182  Fed.  513;  United 
States  use  of  Gibson  Lumber  Co.  v.  Boom- 
er (C.  C.  A.  8th  C.)  106  C.  C.  A.  164,  183 
Fed.  726;  United  States  ex  rel.  James  B. 
Clow  ft  Sons  V.  Illinois  Surety  Co.  105  Fed. 
306;  Baker  Contr.  Co.  v.  [224]  United 
States  (C.  C.  A.  4th  C.)  122  C.  C.  A.  560,  204 
Fed.  300;  Eberhart  v.  United  States  (C.  C. 
A.  8th  C.)  123  C.  C.  A.  180,  204  Fed.  884; 
United  States  use  of  Chief  All  Over  v.  Bai- 
ley, 207  Fed.  783;  Vermont  Marble  Co.  v. 

•1ft 


224-226 


SUPREME  COURT  OF  THE  UNITfiD  STATES. 


Oct.  Tbbm, 


National  Surety  Co.  (C.  C.  A.  3d  C.)  130  C. 
C.  A.  65,  213  Fed.  420;  United  States  ex  rel. 
Brown-Ketcham  Iron  Works  v.  Robinson  (C. 
C.  A.  2d  C.)  130  C.  C.  A.  432,  214  Fed.  38; 
United  States  use  of  Starrett^Fields  Co.  v. 
Massachusetts  Bonding  ft  T.  Co.  215  Fed. 
241 ;  United  States  use  of  Fowden  t.  Emery, 
225  Fed.  287;  United  States  use  of  John  Da- 
vis Co.  ▼.  Illinois  Surety  Co.  (C.  C.  A.  7th 
C.)  226  Fed.  653.  It  was  expressly  held  to 
be  an  action  at  law  in  United  States  ex  rel. 
Proctor  Mfg.  Co.  t.  Stannard  (D.  C.  N.  D. 
N.  Y.)  207  Fed.  198,  202.  The  contrary 
conclusion  was  reached  in  United  States 
use  of  Brading-Marshal  Lumber  Co.  v. 
Wells  (D.  C.  E.  D.  Tenn.),  203  Fed.  146, 
147;  Illinois  Surety  Co.  t.  United  States 
(C.  C.  A.  2d.  C.)  129  C.  C.  A.  584,  212 
Fed.  136,  139,  and  United  States  use  of 
Pittsburg  Planing  Mill  Co.  v.  Scheurman 
(D.  C.  Idaho)  218  Fed.  915,  919.  The 
point  was  raised  on  rehearing  in  United 
States  use  of  John  Davis  Co.  v.  Illinois 
Surety  Co.  (C.  C.  A.  7th  C.)  226  Fed.  pp. 
663,  664,  but,  as  it  came  too  late,  it  was 
not  decided. 

The  statute  provides  that  the  bond  shall 
have  ''the  additional  obligation  that  such 
contractor  or  contractors  shall  promptly 
make  payments  to  all  persons  supplying  him 
or  them  with  labor  and  materials  in  the 
prosecution  of  the  work  provided  for  in  such 
contract."  In  this  respect,  the  provision 
is  substantially  the  same  as  that  contained 
in  the  act  of  1894,  and  the  obligation  in 
favor  of  the  materialmen  and  laborers  has 
been  held  to  be  a  distinct  obligation.  Unit- 
ed States  Fidelity  k  0.  Co.  t.  Golden 
Pressed  Brick  &  Fire  Co.  (United  States 
Fidelity  &  G.  Co.  v.  United  States)  191  U. 
S.  416,  423,  425,  48  L.  ed.  242,  245,  246,  24 
Sup.  Ct.  Rep.  142;  United  States  use  of 
Hill  V.  American  Surety  Co.  200  U.  S.  197, 
201,  202,  50  L.  ed.  437,  439,  440,  26  Sup. 
Ct.  Rep.  168.  It  is  an  obligation  for  the 
payment  of  money  to  the  persons  described, 
which  they  are  entitled  to  enforce.  The 
nature  of  the  obligation  is  not  changed 
by  the  fact  that  there  is  to  be  but  one  ac- 
tion. If  the  United  States  brings  the  ac- 
tion, the  persons  described  are  entitled  to  be 
made  parties,  and  "to  have  their  rights  and 
claims  adjudicated  in  such  action,  and  judg- 
ment rendered  [225]  thereon."  II  the  Unit- 
ed States  does  not  sue  within  the  time  speci- 
fied, they  may  bring  action  on  the  bond  in 
the  name  of  the  United  States,  and  "prose- 
cute the  same  to  final  judgment  and  execu- 
tion." Any  creditor  who  duly  presents  his 
claim  in  such  an  action  becomes  a  party 
thereto  with  a  distinct  cause  of  action. 
Title  Guaranty  k  T.  Co.  t.  Crane  Co.  219 
U.  8.  24,  86,  66  L.  ed.  72,  77,  31  Sup.  Ct. 
Rep.  140.  The  obligation  of  the  surety  thus 
SIS 


enforced  in  a  single  action  is  a  legal  obli- 
gation to  the  United  States  for  the  use  and 
benefit  of  the  several  claimants.  We  do  nol 
regard  the  requirements  that  "the  claim 
and  judgment  of  the  United  States"  shsU 
have  priority,  and  that  the  aggregate  re- 
covery shall  not  exceed  the  penalty  on  tlui 
bond,  as  insuperable  obstacles  to  proceed- 
ing at  law.  It  is  the  case  of  an  undertaking 
for  the  payment  of  many  claims,  not  to 
exceed  the  specified  penalty.  If  the  total 
amount  due  exceeds  the  penalty  of  the  bond, 
it  is  provided  that  "judgment  shall  be  given 
to  each  creditor  pro  rata  of  the  amount  of 
the  recovery."  This,  however,  merely  re- 
quires an  arithmetical  calculation  after  tho 
different  causes  of  action  have  been  passed 
upon,  and  the  amount  due  upon  each  de- 
termined. We  see  no  ground  upon  which 
the  conclusion  can  be  justified  that  the  li- 
ability of  the  surety  on  its  bond  is  to  be 
determined  in  equity.  The  contrary  luui 
been  the  generally  accepted,  and  we  think, 
the  correct,  practice. 

It  should  be  added  that  a  different  sittuk- 
tion  would  arise  if  the  surety,  availing 
itself  of  the  statutory  privilege,  should  paj 
into  court  the  full  amount  of  its  liability, 
to  wit,  the  penalty  on  the  bond,  for  distribo- 
tion*  In  Va&t  case  the  legal  obligation  of 
the  surety  would  be  discharged  by  the  ex- 
press terms  of  the  statute,  and  the  proceed- 
ing would  be  simply  for  the  distribution  of 
a  fund  in  court. 

4.  The  plaintiff  in  error  contends  that  tlie 
court  erred  in  giving  judgment  in  favor  ol 
the  Carolina  Electrical  Company.  The 
record  shows  that  among  those  named  as 
the  persons  instituting  the  action  was  the 
"Electrical  [226]  Engineering  k  Contract- 
ing Company,  assignee  of  Joseph  B.  Chae- 
hire,  Jr.,  receiver  of  the  Carolina  Electrical 
Company."  The  complaint  set  forth  that  the 
Carolina  Electrical  Company  (a  North  Caro- 
lina corporation)  had  furnished  to  the  con- 
tractor certain  material  and  labor  for  whiidi 
there  remained  unpaid  the  sum  of  $498.<Mls 
that  on  October  4,  1912,  Joseph  B.  Cheahin^ 
Jr.,  was  appointed  receiver  of  that  compa^ 
ny;  and  that  on  March  1,  1913,  ita  eUAm 
had  been  "assignejd  and  transferred  for  Tal* 
ue"  to  the  above-named  plaintiff  by  the  re- 
ceiver, and  that  the  plaintiff  was  the  aolt 
owner  of  the  account,  and  had  succeeded  to 
all  the  rights  incident  thereto  which  had  bo- 
longed  to  the  Carolina  Electrical  Company. 
The  alleged  transfer  was  denied.  EH- 
dence  was  introduced  to  show  the  ineorpora* 
tion,  and  the  appointment  of  the  receiver* 
The  district  judge  found  that  the  or^er 
proved  was  insufficient  to  establish  the  ao- 
thority  of  the  receiver  to  assign  the  claim, 
but  held  that  the  proceeding  in  the  case  was 
a  sufficient  filing  of  the  claim  on  behalf  of 

240  U.  & 


1915. 


KANSAS  CITY,  F.  S.  &  M.  R.  CO.  v.  BOTKIN. 


226,227 


the  Carolina  Electrical  Company.  Judg- 
ment was  awarded  in  favor  of  that  company, 
with  direction  that  it  should  be  paid  "only 
to  such  person  as  may  be  authorized  by  law 
to  receive  it  for  said  Carolina  Electrical 
Company,"  and  the  judgment  to  this  edTect 
was  affirmed. 

In  this,  we  think,  the  court  erred.  The 
Carolina  Electrical  Company  was  not  one 
of  the  plaintiffs  and  there  was  no  interven- 
tion on  its  behalf.  The  trial  court  in  its 
findings  sets  forth  the  interventions  of  cer- 
tain other  parties,  and  states  that  no  more 
interventions  appear  to  have  been  filed  in 
the  cause.  It  is  true,  of  course,  that  the 
real  party  in  interest  who  is  entitled  to  en- 
force the  cause  of  action  may  be  substituted 
as  plaintiff.  See  McDonald  v.  Nebraska,  41 
C.  C.  A.  278,  101  Fed.  171,  178.  But  the 
present  case  is  not  one  of  misnomer,  or  of 
a  nominal  plaintiff  for  whom  the  real  party 
in  interest  is  substituted,  or  indeed  of  any 
proper  substitution.  The  plaintiff,  the  Elec- 
trical i:Iiiginecring  &  [227]  Contracting 
Company,  was  not  a  nominal  party,  nor  was 
action  in  any  sense  brought  for  the  benefit 
of  the  Carolina  Electrical  Company.  The  rec- 
ord shows  that  it  was  brought,  so  far  as 
this  claim  is  concerned,  solely  for  the  benefit 
of  the  Electrical  Engineering  ft  Contracting 
Company  upon  the  allegation  that  the  claim 
had  been  assigned  to  it  for  value,  and  that 
it  was  the  exclusive  and  beneficial  owner. 
According  to  the  record,  the  Carolina  Elec- 
trical Company  was  not  made  a  party  at 
any  stage  of  the  action  unless  this  was  ac- 
complished by  the  decision  and  the  judg- 
ment. But  at  the  time  of  the  decision, 
November  10,  1013,  by  reason  of  the  express 
limitation  of  the  statute,  it  was  too  late 
for  that  company  to  intervene. 

The  judgment  is  modified  by  striking  out 
the  provision  in  favor  of  the  Carolina  Elec- 
trical Company,  and  as  thus  modified  is 
affirmed. 

Judgment  affirmed. 


a  corporation,  the  maximum  charge  being 
$2,500  in  the  case  of  all  corporations  hav- 
ing a  paid-up  capital  of  $5,000,000  or  more, 
does  not  offend  against  the  commerce  clause 
of  the  Federal  Constitution  as  applied  to  a 
railway  company  with  a  paid-up  capital  ex* 
ceeding  $30,000,000,  whose  lines  extend  into 
other  states. 

[For  other  cases,  see  Commerce,  III.  d,  5;  III. 
d.  7.  in  Digest  Sup.  Ct.  1008.] 

Constitutional  law  «  due  process  of 
law  —  privilege  tax. 
2.  A  domestic  railway  company  whose 
lines  extend  into  other  states  is  not  taxed 
upon  its  property  outside  the  jurisdiction 
of  the  state,  contrary  to  the  Federal  Con- 
stitution, by  the  exaction,  under  Kan.  Laws 
1918r  chap.  135,  of  the  annual  tax  graduated 
according  to  paid-up  capital  stock,  imposed 
by  that  statute  upon  domestic  corporations 
for  the  privilege  of  being  a  corporation, 
since  such  tax  is  not  a  property  tax. 

[For    other    canes,    see    Constitutional    Law, 
58e-540,  In  Digest  Sap.  Ct.  1908.] 

[No.  450.] 

Submitted  January  7,  1916.     Decided  Feb- 
ruary 21,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Kansas  to  review  a  judgment 
which  affirmed  a  judgment  of  the  District 
Court  of  Shawnee  County,  in  that  state, 
in  favor  of  defendant  in  a  suit  by  a  domestic 
railway  corporation  to  recover  back  the 
amount  of  a  privilege  tax  paid  by  it.  Af- 
firmed. 

See  same  case  below,  95  Kan.  261,  147 
Pac.  791. 

The  facts  are  stated  in  the  opinion. 


KANSAS  CITY,  FORT  SCOTT,  &  MEM- 
PHIS  RAILWAY  COMPANY,  Plff.  in 
Err., 

v. 

J.  T.  BOTKIN,  Secretary  of  State  of  the 
State  of  Kansas. 

(See  S.  C.  Reporter's  ed.  227-235.) 

Connnnerce  —  state  privilege  tax  ^  in- 
terstate railway. 

1.  The  annual  tax,  graduated  accord- 
ing to  paid-up  capital  stock,  imposed  upon 
domestic  corporations  under  Kan.  Laws 
1913,  chap.  135,  on  the  privilege  of  being 
«0  li.  ed. 


Note. — State  licenses  or  taxes,  as  af- 
fecting interstate  commerce — see  notes  to 
Rothermel  v.  Meyerle,  9  L.RJ^..  366;  Amer- 
ican Fertilizing  Co.  v.  Board  of  Agriculture, 
11  L.R.A.  179;  Gibbons  v.  Ogden,  6  L.  ed. 
U.  S.  23;  Brown  v.  Maryland,  6  L.  ed.  U. 
S.  678;  Ratterman  v.  Western  U.  Teleg.  Co. 
32  L.  ed.  U.  S.  229;  Harmon  v.  Chicago,  37 
L.  ed.  U.  S.  217;  Cleveland,  C.  C.  &  St.  L. 
R.  Co.  V.  Backus,  38  L.  ed.  U.  S.  1041; 
Postal  Teleg.  Cable  Co.  v.  Adams,  39  L.  ed. 
U.  S.  311;  and  PitUburg  &  S.  Coal  Co.  v. 
Bates,  39  L.  ed.  U.  S.  538. 

On  corporate  taxation  and  the  commerce 
clause — see  note  to  Sandford  v.  Poc,  60 
L.RJL.  641. 

On  the  taxation  of  corporate  capital 
stock,  generally — see  note  to  State  Bd.  of 
Equaliuition  v.  People,  58  L.RJ^..  513. 

As  to  what  constitutes  due  process  of  law, 
generally — see  notes  to  People  v.  O'Brion, 
2  L.RA.  255;  Kuntz  v.  Sumption,  2  L.K.A. 
655;  Re  Gannon,  5  L.RA.  359;  Ulman  v. 
Baltimore,  11  L.RJ^..  224;  Oilman  v.  Tuck- 
er, 13  LJLA.  304;  Pearson  v.  Yewdall,  24 
L.  ed.  U.  S.  436;  and  Wilson  v.  North  Caro- 
lina, 42  L.  ed.  U.  S.  865. 


280,  281 


8UPREH£  COURT  OF  TH£  UNITED  STATBa 


Oct.  TnM, 


Metsrt.  R.  B.  Vermilion  and  W.  F. 
Brans  tiibmitted  the  cause  for  plaintiff  in 
error: 

The  statute  imposes  a  burden  on  inter- 
state oommeroe,  and  seeks  to  tax  property 
beyond  the  jurisdiction  of  the  state  of  Kan- 
sas. 

Western  U.  Tdeg.  Co.  v.  Kansas,  216  U. 
S.  31,  54  L.  ed.  367,  30  Sup.  Ct.  Rep.  100; 
Philadelphia  A  S.  Mail  S.  S.  Co.  v.  Pennsyl- 
vania, 122  U.  S.  326,  30  L.  ed.  1200, 1  Inters. 
Com.  Rep.  308,  7  Sup.  Ct.  Rep.  1118;  Gal- 
veston, H.  ft  S.  A.  R  Co.  T.  Texas,  210  U.  S. 
217,  52  L.  ed.  1031,  28  Sup.  Ct.  Rep.  638; 
Meyer  v.  Wells,  F.  &  Co.  223  U.  8.  298,  56 
L.  ed.  445,  32  Sup.  Ct  Rep.  218;  Ludwig  ▼. 
Western  U.  Teleg.  Co.  216  U.  S.  146,  54  L. 
ed.  423;  30  Sup.  Ct.  Rep.  280;  Crane  Co.  v. 
Looney,  218  Fed.  260. 

Mr.  James  P.  Coleman  submitted  the 
cause  for  defendant  in  error.  Mr.  S.  M. 
Brewster,  Attorney  General  of  Kansas,  and 
Messrs.  W.  P.  Montgomery  and  J.  L.  Hunt 
were  on  the  brief: 

Chapter  135,  Session  Laws  of  Kansas  of 
1013,  imposes  an  excise  tax  upon  the  right 
or  privilege  of  the  plaintiff  in  error  to 
exist  as  a  corporation  under  the  laws  of 
the  state  of  Kansas. 

Kansas  City,  Ft.  S.  ft  M.  R  Co.  v.  Ses- 
sions, 95  Kan.  261,  147  Pac.  791;  Society 
for  Savings  v.  Coite,  6  Wall.  594,  18  L.  ed. 
897;  Hamilton  Mfg.  Co.  v.  Massachusetts,  6 
Wall  632,  18  L.  ed.  904;  Provident  Inst.  v. 
Massachusetts,  6  Wall.  611,  18  L.  ed.  907; 
Home  Ins.  Co.  v.  New  York,  134  U.  S.  594, 
33  L.  ed.  1025,  10  Sup.  Ct.  Rep.  593. 

The  state  has  full  power  to  impose  such 
a  privilege  tax. 

Society  for  Savings  v.  Coite,  6  Wall.  594, 
18  L.  ed.  897;  Hamilton  Mfg.  Co.  v.  Massa- 
chusetts, 6  Wall.  632,  18  L.  ed.  904;  Provi- 
dent Inst.  T.  Massachusetts,  6  Wall.  611, 
18  L.  ed.  907;  Horn  Silver  Min.  Co.  v.  New 
York,  143  U.  S.  305,  36  L.  ed.  164,  4  Inters. 
Com.  Rep.  57,  12  Sup.  Ct.  Rep.  403;  Phila- 
delphia ft  R.  R.  Co.  T.  Pennsylvania,  15 
Wall  284,  21  L.  ed.  164;  Philadelphia  ft  S. 
Mail  S.  S.  Co.  V.  Pennsylvania,  122  U.  S.  326, 
30  L.  ed.  1200,  1  Inters.  Com.  Rep.  308,  7 
Sup.  Ct.  Rep.  1118;  Minot  v.  Philadelphia, 
W.  ft  B.  R.  Co.  18  Wall.  206,  21  L.  ed.  888. 

Such  a  franchise  tax,  if  otherwise  valid, 
may  be  computed  or  measured  in  amount 
by  the  amount  of  the  capital  stock  of  the 
corporation  employed  in  part  in  carrying  on 
interstate  conunerce. 

Flint  T.  Stone  Tracy  Co.  220  U.  S.  107, 
55  L.  ed.  389,  31  Sup.  Ct.  Rep.  342,  Ann. 
Cas.  1912B,  1312;  United  States  Exp.  Co.  v. 
Minnesota,  223  U.  S.  335,  56  L.  ed.  459,  32 
Sup.  Ct  Rep.  211;  Baltic  Min.  Co.  v.  Mas- 
•  18 


sachusetts,  231   U.   8.  68,  58  L.  ed.   127» 
L.RA.  — ,  — ,  34  Sup.  Ct.  Rep.  15. 

The  statute  imposing  the  tax  provides 
that  the  amount  to  be  paid  for  the  privilege 
for  which  it  is  required  shall  be  determined 
by  reference  to  the  capital  employed  in  ex- 
ercising that  privilege,  and  such  capital,  or 
the  property  in  wMch  such  capital  is  in- 
vested, is  not  itself  taxed. 

Home  Ins.  Co.  t.  New  York,  134  U.  S. 
594,  33  L.  ed.  1025,  10  Sup.  Ct.  Rep.  593; 
New  York  ex  reL  Cornell  v.  Sohmer,  235 
U.  S.  549,  59  L.  ed.  355,  35  Sup.  Ct.  Rep. 
162. 

The  statute  in  question,  as  applied  to 
domestic  railway  corporations,  does  not  bur- 
den interstate  commerce. 

Philadelphia  ft  R  R  Co.  v.  Pennsylvania, 
15  WaU.  284,  21  L.  ed.  164;  PhiUdelphia 
ft  S.  Mail  8.  S.  Co.  v.  Pennsylvania,  122  U. 
S.  326,  30  L.  ed.  1200,  1  Inters.  Com.  Rep. 
308,  7  Sup.  Ct.  Rep.  1118;  Minot  v.  Phila- 
delphia, W.  ft  B.  R  Co.  18  WalL  206,  21  L. 
ed.  888;  Wiggins  Ferry  Co.  v.  East  St. 
Louis,  107  U.  S.  365,  27  L.  ed.  419,  2  Sup.  Ct. 
Rep.  257;  Ashley  v.  Ryan,  153  U.  S.  436,  38 
L.  ed.  773,  4  Inters.  Com.  Rep.  664,  14  Sup. 
Ct.  Rep.  865;  Baltimore  ft  O.  R.  Co.  y. 
Maryland,  21  Wall.  456,  22  L.  ed.  678. 

The  question  involved  is  not  within  the 
rule  of  law  determined  in  Western  U.  Teleg. 
Co.  V.  Kansas,  216  U.  S.  1,  54  L.  ed.  355,  30 
Sup.  Ct.  Rep.  190,  and  Pullman  Co.  y.  Kan- 
sas, 216  U.  S.  56,  54  L.  ed.  378,  30  Sup.  Ct 
Rep.  232.  See  also  Kansas  City  Ft.  S.  ft  M. 
R.  Co.  V.  Sessions,  95  Kan.  261, 147  Pac  791. 

Mr.  Justice  Hughes  delivered  the  opin- 
ion of  the  court: 

By  chapter  135  of  the  Laws  of  1918,  of 
Kansas,  every  domestic  corporation  is  re- 
quired to  pay  to  the  secretary  of  state  an 
annual  fee  which  is  graduated  according 
to  the  amount  of  its  paid-up  capital  stock. 
When  this  capital  stock  does  not  exceed 
$10,000,  the  fee  is  $10;  when  it  exceeds 
$10,000,  but  is  not  over  $25,000,  the  fee  is 
$25 ;  and  there  are  further  increases,  gradu- 
ated as  stated,  until  the  maximum  fee  of 
$2,500  is  reached,  that  sum  [231]  being 
payable  in  all  cases  where  the  paid-up  cap- 
ital stock  exceeds  $5,000,000.  The  plaintiff 
in  error  is  a  railroad  corporation  organized 
under  the  laws  of  Kansas,  and  its  road  ex- 
tends into  several  states.  It  has  a  paid-up 
capital  stock  of  $31,660,000.  On  March  31, 
1914,  it  paid  to  the  secretary  of  state,  un- 
der protest,  the  required  fee  of  $2,500,  and 
brought  this  action  to  recover  the  amount, 
insisting  that  the  tax  is  a  direct  burden 
upon  interstate  commerce  and  is  laid  upon 
property  outside  the  state,  and  hence  is  in- 
valid under  the  Federal  Constitution.  The 
supreme  court  of  Kansas  sustained  the  tax» 

240  U.  8. 


JOIo. 


KANSAS  CITY,  F.  8.  &  M.  R.  CO.  v.  BOTKIN. 


231-233 


thus  defining  its  nature:  "The  fee  collected 
is  a  tax  upon  the  right  of  corporate  exist- 
ence— the  franchise  granted  by  the  state 
to  be  a  corporation — to  do  business  with 
the  advantages  associated  with  that  form 
of  organization.''  05  K«in  261,  147  Pac. 
791. 

It  must  be  assumed,  in  accordance  with 
repeated  decisions,  that  the  state  cannot 
lay  a  tax  on  interstate  commerce  "in  any 
form,"  by  imposing  it  either  upon  the  busi- 
ness which  constitutes  such  conunerce  or 
the  privilege  of  engaging  in  it,  or  upon  the 
receipts  as  such  derived  from  it.  State 
Freight  Tax  Case,  15  Wall.  232,  21  L.  ed. 
146;  Philadelphia  &  S.  Mail  S.  S.  Co.  t. 
Pennsylvania,  122  U.  S.  326,  336,  344,  30 
L.  ed.  1200,  1201,  1204,  1  Inters.  Com.  Rep. 
308,  7  Sup.  Ct.  Rep.  1118;  Leloup  v.  Mo- 
bile, 127  U.  S.  640,  32  L.  ed.  311,  2  Inters. 
Com.  Rep.  134,  8  Sup.  Ct.  Rep.  1380;  Lyng 
V.  Michigan,  135  U.  S.  161,  166,  34  L.  ed. 
150,  153,  3  Inters.  Com.  Rep.  143,  10  Sup. 
Ct.  Rep.  725;  McCall  y.  California,  136  U. 
S.  104,  34  L.  ed.  391,  3  Inters.  Com.  Rep. 
181,  10  Sup.  Ct.  Rep.  881;  Galveston,  H. 
A  S.  A.  R.  Co.  T.  Texas,  210  U.  S.  217,  228, 
52  L.  ed.  1031,  1038.  28  Sup.  Ct.  Rep.  638; 
Western  U.  Teleg.  Co.  v.  Kansas,  216  U. 
S.  1,  36,  37,  54  L.  ed.  355,  369,  370,  30 
Sup.  Ct.  Rep.  190;  Pullman  Co.  t.  Kansas, 


rq>resent  property  not  subject  to  the  state's 
taxii^  power.    Thus,  in  Society  for  Savings 
▼.  Coite,  6  Wall.  594,  606,  607,  18  L.  ed. 
897,  iK)2,  903,  the  power  to  levy  the  fran- 
chise tax  was  deemed  to  be  ''wholly  unaf- 
fected" by  the  fact  that  the  corporation  had 
invested  in  Federal  securities;  and  in  Home 
Ins.  Co.  T.  New  York,  134  U.  S.  594,  509, 
600,  83  L.  ed.  1025,  1029,  1030,  10  Sup.  Ct. 
Rep.  593,  it  was  held  that  a  tax  upon  the 
privilege  of  being  a  corporation   was  not 
rendered  invalid  because  a  portion  of  its 
capital    (the  tax  being  measured  by  divi- 
dends)  was  represented  by  United  States 
bonds.  These  cases  were  cited  with  distinct 
approval,  and  the  rule  they  applied  in  dis- 
tinguishing  between   the   subject   and   the 
measure  of  the  tax  was  recognized  as  an 
established  one,  in  Flint  t.  Stone  Tracy  Co. 
220  U.  S.  107, 165,  55  L.  ed.  389, 419,  31  Sup. 
Ct.  Rep.  342,  Ann.  Cas.  1912B,  1312.    It  is 
also  manifest  that  the  state  is  not  debarred 
from  imposing  a  tax  upon  the  granted  privi- 
lege  of   being   a   corporation,   because   the 
corporation  is  engaged  in  interstate  as  well 
as  intrastate  commerce.    Delaware  R.  Tax, 
18  Wall.  206,  231,  232,  21  L.  ed.  888,  806; 
State  R.  Tax  Cases,  92  U.  S.  575,  603,  23 
L.  ed.  663,  669;  Philadelphia  &  S.  Mail  S. 
S.  Co.  V.  Pennsylvania,  122  U.  S.  326,  336, 
344,  30  L.  ed.  1200,  1201,   1204,  1  Inters. 


216  U.  S.  56,  65,  54  L.  ed.  378,  385,  30  Sup.    Com.  Rep.  308,  7  Sup.  Ct.  Rep.  1118;  Ash- 


Ct.  Rep.  232;  Meyer  v.  Wells  F.  &  Co.  223 
U.  S.  208,  56  L.  ed.  445,  32  Sup.  Ct.  Rep. 
218;  Baltic  Min.  Co.  v.  Massachusetts,  231 
U.  S.  68,  83,  58  L.  ed.  127,  133,  L.R.A.— , 
— ,  34  Sup.  Ct.  Rep.  15.  And,  further,  in 
determining  whether  a  tax  has  such  a  direct 
relation  to  interstate  commerce  as  to  be  an 
exercise  of  power  prohibited  by  the  com- 
merce clause,  our  decision  must  regard  the 
substance  of  the  exaction, — its  operation 
and  effect  as  enforced, — ^and  cannot  depend 
upon  the  manner  in  which  the  taxing  scheme 
has  been  characterized.  Galveston,  H.  & 
S.  A.  R.  Co.  V.  [«3«]  Texas,  210  U.  S.  217, 
228,  52  L.  ed.  1031,  1038,  28  Sup.  a.  Rep. 
638;  United  States  Exp.  Co.  v.  Minnesota, 
223  U.  S.  335,  346,  56  L.  ed.  459,  465,  32  Sup. 
Ct  Rep.  211 ;  St.  Louis  Southwestern  R.  Co. 
▼.  Arkansas,  235  U.  S.  350,  362,  59  L.  ed. 
265,  271,  35  Sup.  Ct.  Rep.  99. 

Examining  the  statute  in  the  present  case, 
we  see  no  reason  to  doubt  the  accuracy  of 
the  description  of  the  tax  by  the  state 
court.  We  take  it  to  be  simply  a  tax  on 
the  privilege  of  being  a  corporation,— -on 
the  primary  corporate  franchise  granted  by 
the  state.  The  authority  of  the  state  to 
tax  this  privilege,  or  franchise,  has  al- 
ways been  recognized,  and  it  is  well 
settled  that  a  tax  of  this  sort  is  not  neces- 
sarily rendered  invalid  because  it  is  meas- 
ured by  capital  stock  which  in  part  may 
•0  li.  ed. 


ley  V.  Ryan,  153  U.  S.  436,  38  L.  ed.  773, 
4  Inters.  Com.  Rep.  664,  14  Sup.  Ct.  Rep. 
865;  New  Ydrk  ex  rol.  Cornell  S.  B.  Co.  v. 
Sohmer,  235  U.  S.  549,  559,  560,  59  L.  ed. 
355,  359,  360,  35  Sup.  Ct.  Rep.  162.     And, 
agreeably  to  the  principle  above  mentioned, 
it  has  never  been,  and  cannot  be,  maintained 
that  an  annual  tax  upon  this  privilege  is  in 
itself,  and  in  all  cases,  repugnant  [233]  to 
the    Federal    power   merely   because    it    is 
measured  by  authorized  or  paid-up  capital 
stock.    The  selected  measure  may  appear  to 
be  simply  a  matter  of  convenience  in  com- 
putation, and  may  furnish  no  basis  what- 
ever for  the  conclusion  that  the  effort  is 
made  to  reach  subjects  withdrawn  from  the 
taxing  authority.  We  have  recently  had  oc- 
casion  (Baltic  Min.  Co.  v.  Massachusetts, 
231  U.  S.  68,  83,  58  L.  ed.  127, 133,  L.RJL.— , 
— ,  34  Sup.  Ct.  Rep.  15)  to  emphasize  the 
necessary  caution  that  ''every  case  involving 
the  validity  of  a  tax  must  be  decided  upon 
its  own  facts;"  and  if  the  tax  purports  to 
be  laid  upon  a  subject  within  the  taxing 
power  of  the  state,  it  is  not  to  be  con- 
denmed  by  the  application  of  any  artificial 
rule,  but  only  where  the  conclusion  is  re- 
quired   that    its    necessary    operation    and 
effect  is  to  make  it  a  prohibited  exaction. 
In  Philadelphia  ft  S.  Mail  S.  8.  Co.  t. 
Pennsylvania,  122  U.  S.  326,  336,  344,  30  L. 
ed.  1200.  1201,  1204,  1  Inters.  Com.  Ren. 


233-235 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm» 


368,  7  Sup.  Ct.  Rep.  1118,  the  state  had 
laid  "a  tax  of  A  of  1  per  centum  upon  the 
gross  receipts  of  said  company  for  tolls  and 
transportation."  As  the  court  said:  "The 
tax  was  levied  directly  upon  the  receipts 
derived  by  the  company  from  its  fares  and 
freightb  for  the  transportation  of  persons 
and  goods  between  different  states,  and  be- 
tween the  states  and  foreign  coimtries,  and 
from  the  charter  of  its  vessels  which  was 
for  the  same  purpose."  It  was  necessarily 
concluded  that  the  tax  was  imposed  upon 
interstate  commerce.  In  Galveston,  H.  &  S. 
A.  R.  Co.  V.  Texas,  210  U.  S.  217,  228,  52 
L.  ed.  1031,  1038,  28  Sup.  Ct.  Rep.  638,  the 
tax  upon  the  railroad  company  was  "equal 
to  1  per  centum  of  its  gross  receipts."  The 
court  held  that  this  was  "merely  an  effort 
to  reach  the  gross  receipts,  not  even  dis- 
guised by  the  name  of  an  occupation  tax, 
and  in  no  way  helped  by  the  words  'equal 
to.' "  By  the  statute  which  was  under  re- 
view in  Wefitem  U.  Teleg.  Co.  v.  Kansas, 
216  U.  S.  1,  86,  37,  54  L.  ed.  355,  369,  370, 
30  Sup.  Ct.  Rep.  190,— as  was  said  in  Flint 
v.  Stone  Tracy  Co.  supra,  summarizing  that 
case, — ^the  state  "undertook  to  levy  a  graded 
charter  fee  upon  the  entire  capital  stock 
of  one  hundred  millions  of  dollars  on  the 
Western  Union  Telegrsph  Company,  a  for- 
eign corporation,  and  engaged  in  [234] 
commerce  among  the  states,  as  a  condition 
of  doing  local  business  within  the  state  of 
Kansas.  This  court  held,  looking  through 
forms  and  reaching  the  substance  of  the 
thing,  that  the  tax  thus  imposed  was  in 
reality  a  tax  upon  the  right  to  do  interstate 
business  within  the  state,  and  an  undertak- 
infr  to  tax  property  beyond  the  limits  of  the 
state;  that  whatever  the  declared  purpose, 
when  reasonably  interpreted,  the  necessary 
operation  and  effect  of  the  act  in  question 
was  to  burden  interstate  commerce  and  to 
tax  property  beyond  the  jurisdiction  of  the 
titate,  and  it  was  therefore  invalid."  To 
the  same  effect  were  Pullman  Co.  v.  Kan- 
sas, 216  U.  S.  56,  65,  54  L.  ed.  378,  385, 
30  Sup.  Ct.  Rep.  232,  and  Ludwig  v.  West- 
ern U.  Teleg.  Co.  216  U.  S.  146,  54  L.  ed. 
423,  30  Sup.  Ct.  Rep.  280.  The  act  before 
the  court  in  Meyer  v.  Wells  F.  &  Co.  223 
U.  S.  208,  56  L.  ed.  445,  32  Sup.  Ct.  Rep. 
218,  which  provided  for  what  was  called  a 
"gross  revenue  tax,"  was  deemed  to  be  "so 
similar  to  the  Texas  statute  held  bad"  in 
the  case  of  Galveston,  H.  &  S.  A.  R.  Co.  v. 
Texas,  as  to  deserve  a  similar  condemna- 
tion. On  the  other  hand,  in  United  States 
Exp.  Co.  V.  Minnesota,  223  U.  S.  335,  346, 
56  L.  ed.  450,  465,  82  Sup.  Ct.  Rep.  211, 
it  appeared  that  the  reference  to  gross  re- 
620 


*» 


ceipts  was  only  intended  fairly  to  measure 
a  tax  upon  a  subject  within  the  taxing 
power  of  the  state,  and  the  tax  was  sus- 
tained. And,  in  the  case  of  Baltic  Min.  Co. 
V.  Massachusetts,  supra,  where  a  tax  on 
foreign  corporations  was  measured  by  the 
authorized  capital  stock  and  was  limited  to 
$2,000,  the  court  also  reached  the  conclu- 
sion "that  the  authorized  capital  is  only 
used  as  the  measure  of  a  tax,  in  itself  law- 
ful, without  the  necessary  effect  of  burden- 
ing interstate  commerce,"  and  that  hence 
the  legislation  was  within  the  authority  of 
the  state.  It  is  true  that  in  that  case  it 
was  pointed  out  that  the  taxing  act  did 
not  apply  to  corporations  engaged  in  rail- 
road, telegraph,  etc.,  business,  or  to  those 
corporations  whose  business  is  interstate 
commerce;  but  it  was  also  distinctly  stated 
that  the  products  of  the  corporations  be- 
fore the  court  were  "sold  and  shipped  in 
interstate  commerce,"  and  that  to  that  ex- 
tent they  were  "engaged  [235]  in  the  busi- 
ness of  carrying  on  interstate  commerce 
and  were  "entitled  to  the  protection  of  the 
Federal  Constitution  against  laws  burden- 
ing commerce  of  that  character."  It  was 
because  the  tax,  although  measured  by 
authorized  capital  stock,  could  not,  in  view 
of  its  limitations,  be  regarded  as  imposing 
a  direct  burden  upon  interstate  commerce, 
that  the  tax  was  upheld.    231  U.  S.  pp.  86« 

87. 

In  the  present  case,  the  tax  is  not  laid 
upon  transactions  in  interstate  commerce, 
or  upon  receipts  from  interstate  commerce, 
either  separately  or  intermingled  with  other 
receipts.  It  does  not  fluctuate  with  the 
volume  of  interstate  business.  It  is  not 
a  tax  imposed  for  the  privilege  of  doing 
an  interstate  business.  It  is  a  franchise 
tax,— on  the  privilege  granted  by  the  state 
of  being  a  corporation, — and  while  it  is 
graduated  according  to  the  amount  of  paid- 
up  capital  stock,  the  maximum  charge  is 
$2,500  in  the  case  of  all  corporations  hav- 
ing a  paid-up  capital  of  $5,000,UU0  or  more. 
This  is  the  amount  imposed  in  the  present 
case,  where  the  corporation  has  a  capital  of 
$31,660,000.  We  And  no  ground  for  saying 
that  a  tax  of  this  character,  thus  limited, 
is  in  any  sense  a  tax  imposed  upon  inter- 
state commerce. 

For  similar  reasons,  the  contention  can- 
not be  sustained  that  the  tax  was  one  on 
property  beyond  the  jurisdiction  of  the 
state.  Undoubtedly,  a  tax  may  be  in  form 
a  privilege  tax  and  yet,  in  substance,  may 
be  a  tax  on  property.  But  the  present  tax 
cannot  be  regarded  as  a  property  tax  at  all. 

Judgment  affirmed. 

S40  V.  8. 


1915. 


LUJSK  V.  BOIKIX. 


236-238 


[236]  JAMES  W.  LUSK,  William  C.  Nix- 
on, and  William  B.  Biddle,  Receivers  of 
the  Railroads  and  Property  of  St  Louis 
&  San  Francisco  Railroad  Company,  Plffs. 
in  £rr., 

V. 

J.  T.  BOTKIN,  Secretary  of  SUte  of  the 
State  of  Kansas. 

(See  8.  C.  Reporter's  ed.  236-239.) 

Appeal  —  Judgment  —  affirmance  — 
sustuininfi:  privilege  tax  on  foreign 
corporation. 

A  decision  upholding  the  validity  of 
the  annual  tax  imposed  by  Kan.  Laws 
1913,  chap.  135,  upon  a  foreign  railway 
company  doing  business  in  Kansas,  meas- 
ured by  that  proportion  of  its  capital  stock 
which  is  devoted  to  its  Kansas  business, 
must  be  affirmed  by  the  Federal  Supreme 
Court,  where  that  court  had  upheld  the 
validity  of  the  tax  imposed  by  the  same 
statute  upon  domestic  corporations,  and ' 
the  sole  basis  of  the  attack  upon  the  stat- 1 
ute  as  applied  to  foreign  corporations  is 
the  asserted  discrimination  against  such  I 
corporations,  resulting  from  the  supposed 
invalidity  of  the  tax  on  domestic  corpora- 
tions. 

(For  other  caseii,  see  Appeal  and  Error.  IX.  e. 
In  Digest  Sop.  Ct.  1908.1 

[No.  451.] 

Submitted  January  7,  1916.    Decided  Feb- 
ruary 21,  1916. 

IX  ERROR  to  the  Supreme  Court  of  the 
State  of  Kansas  to  review  a  judgment 
which  affirmed  a  judgment  of  the  District 
Court  of  Shawnee  County,  in  that  state, 
in  favor  of  defendant  in  a  suit  by  a  foreign 
corporation  to  recover  a  privilege  tax  paid 
by  it.    Affirmed. 

See  same  case  below,  95  Kan.  271,  147 
Pac.  704. 

The  facts  are  stated  in  the  opinion. 

Messrs.  R.  R.  Vermilion  and  W.  F. 
fivans  submitted  the  cause  for  plaintiffs 
in  error. 

Mr.  James  P.  Coleman  submitted  the 
cause  for  defendant  in  error.  Mr.  S.  M. 
Brewster,  Attorney  Qeneral  of  Kansas,  and 
Messrs.  W.  P.  Montgomery  and  J.  L.  Hunt 
were  on  the  brief. 


Mr.  Pant  E.  Walker,  as  anUou§  ourUe, 
filed  a  brief  for  the  Chicago,  Rock  Island, 
k  Pacific  Railway  Company. 

[237]  Mr.  Justice  Hughes  delivered  the 
opinion  of  the  court: 

The  plaintiffs  in  error,  the  receivers  of  a 
railroad  corporation  organized  under  the 
laws  of  the  state  of  Missouri,  brought  this 
action  to  recover  the  sum  of  $2,500,  alleged 
to  have  been  paid  under  protest  to  the  secre- 
tary of  state  of  the  state  of  Kansas  as  a 
tax  upon  foreign  corporations  imposed  by 
chapter  135  of  the  Laws  of  1913.  A  general 
demurrer  to  the  petition  was  sustained, 
and,  as  the  plaintiff  declined  to  plead 
further,  judgment  was  rendered  in  favor  of 
the  defendant.  This  judgment  was  afllrmed 
by  the  supreme  court  of  the  state.  95  Kan. 
I  271,  147  Pac.  794. 

I  The  act  above  mentioned  (§  2)  requires 
I  ''every  foreign  corporation,  for  profit,  now 
I  or  hereafter  doing  business  in  this  state, 
j  and  owning  or  using  a  part  or  all 
I  of  its  capital  in  this  state,  and  sub- 
I  ject  to  compliance  with  the  laws  re- 
lating to  the  admission  of  foreign  corpora- 
tions to  do  business  in  Kansas"  to  make 
annual  report,  setting  forth  certain  facts,  to 
the  secretary  of  state.  It  is  further  provid- 
ed that  "upon  the  filing  of  such  report  the 
secretary  of  state,  from  the  facts  thus  re- 
ported and  any  other  facts  coming  to  his 
knowledge  bearing  upon  the  question,  shall 
determine  the  proportion  of  the  issued 
capital  stock  of  the  company  represented  by 
its  property  and  business  in  Kansas,  and 
shall  charge  and  collect  from  such  company, 
in  addition  to  the  initial  fees,  for  the  privi- 
lege of  exercising  its  franchise  in  Kansas, 
an  annual  fee  upon  that  proportion  of  such 
foreign  corporation's  issued  capital  stock 
as  is  devoted  to  its  Kansas  business."  The 
amount  of  the  fee  is  graduated  according 
to  the  amount  of  the  issued  capital  stock 
''used  in  Kansas."  The  minimum  annual 
fee  is  $10,  when  the  issued  capital  stock  so 
used  does  not  exceed  $10,000;  and  the  maxi- 
mum annual  fee  is  $2,500,  when  the  issued 
capital  stock  so  used  exceeds  $5,000,000. 

[238]  Construing  these  provisions  of  the 
act,  and  answering  the  objection  that,  as  to 
a  railroad  company,  and  other  foreign  cor- 
porations, doing  both  a  local  and  interstate 


KoTE. — State  license  or  taxes,  as  affecting 
interstate  commerce — see  notes  to  Rother- 
mel  V.  Meyerle,  9  L.R.A.  366;  American 
Fertilizing  Co.  v.  Board  of  Agriculture,  11 
L.RJL  179;  Gibbons  v.  Ogden,  6  K  ed.  U. 
8.  23;  Brown  v.  Maryland,  6  L.  ed.  U.  S. 
678;  Ratterman  v.  Western  U.  Teleg.  Co. 
32  L.  ed.  U.  S.  229;  Harmon  v.  Chicago,  37 
L.  ed.  U.  S.  217;  Cleveland,  C.  C.  &  St.  L. 
R.  Co.  V.  Backus,  38  L.  ed.  U.  8.  1041; 
60  ^.  ed. 


Postal  Teleg.  Cable  Co.  v.  Adams,  39  L.  ed. 
U.  S.  311;  and  Pittsburg  &  S.  Coal  Co.  ▼. 
Bates,  39  L.  ed.  U.  S.  538. 

On  corporate  taxation  and  the  commerce 
clause — see  note  to  Sandford  ▼.  Poe,  60 
L.R.A.  643. 

On  the  taxatoin  of  corporate  capital  stock, 
generally — see  note  to  State  Bd.  of  Equali- 
zation ▼.  People,  58  L.RJI.  513. 


238-240 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Twmu, 


business,  the  act  was  invalid  because  it  un- 
dertook to  regulate  interstate  commerce,  the 
supreme  court  of  Kansas  said  in  State  ex 
rel.  Dawson  v.  Sessions,  95  Kan.  272,  276, 
147  Pac.  789: 

"The  requirements  of  the  statute  are  im- 
posed on  such  foreign  corporations  doing 
business  in  this  state  as  are  'subject  to  com- 
pliance with  the  laws  relating  to  the  ad- 
mission of  foreign  corporations  to  do  busi- 
ness in  Kansas.'  (§2.)  Corporations  which 
are  engaged  solely  in  interstate  commerce 
are  therefore  wholly  exempt  from  all  its 
provisions,  and  those  which  do  both  an 
Interstate  and  an  intrastate  business  are 
exempt  so  far  as  concerns  the  former. 
The  phrases  'that  proportion  of  such  foreign 
corporation's  issued  capital  stock  as  is  de- 
voted to  its  Kansas  business'  (§  2) ,  and  'the 
issued  capital  stock  used  in  Kansas,'  refer 
to  the  amount  of  capital  invested  in  doing  a 
purely  local  business.  The  total  capital  of 
the  company  is  involved  only  as  a  basis  for 
arriving  at  a  reasonable  estimate  of  the 
capital  devoted  to  transportation  originat- 
ing and  ending  in  Kansas." 

In  the  instant  case,  the  objections  to  the 
tax  upon  the  foreign  corporation  rest  en- 
tirely upon  the  asserted  invalidity  of  the 
tax  imposed  by  the  same  statute  upon  do- 
mestic corporations;  it  is  insisted  that  the 
foreign  corporation  had  complied  with 
statutory  conditions  entitling  it  to  be  treat- 
ed not  less  favorably,  and  that,  if  the  tax 
laid  by  the  statute  upon  domestic  corpora- 
tions is  invalid,  the  tax  laid  upon  the 
foreign  corporation  cannot  be  sustained. 
Apparently,  no  other  contention  was  pre- 
sented to  the  supreme  court  of  the  state  (95 
Kan.  271).  And,  accordingly,  in  the  brief 
of  the  plaintiffs  in  error  in  this  court,  the 
questions  involved  are  stated  to  be:  (a) 
that  the  act  under  which  the  tax  was  de- 
manded is  uncofastitutional  because  "when 
applied  to  railroad  [230]  companies  organ- 
ized imder  the  laws  of  the  state  of  Kansas," 
owning  lines  extending  into  other  states,  the 
act  places  a  burden  upon  interstate  com- 
merce and  undertakes  to  tax  property  out- 
side the  state;  (b)  that  the  act  seeks  "to 
place  a  tax  upon  the  entire  capital  stock  of 
domestic  corporations  owning  and  operating 
railroads  in  Kansas  and  other  states,"  that 
it  thereby  attempts  to  tax  property  outside 
the  state,  in  contravention  of  the  14th 
Amendment,  and  that  it  "is  therefore  void 
as  to  domestic  corporations;"  and  (c)  that 
the  compliance  by  the  Missouri  corporation 
(of  which  the  plaintiffs  in  error  are  re- 
ceivers) with  the  terms  of  chapter  186  of 
the  Laws  of  1887,  of  Kansas,  "constituted 
a  contract  between  the  railroad  company 
and  the  state,  by  which  the  state  bound 
Hbc}!  not  to  subject  the  railroad  company  or 


the  plaintiffs  in  error  to  any  greater  liabili- 
ties than  those  imposed  upon  railroad  corpo- 
rations organized  under  the  laws  of  Kansas^ 
and  conferred  upon  such  foreign  corpora- 
tion complying  with  said  act  'all  the  ri^ta, 
privileges,  and  franchises'  of  Kansas  rail- 
road corporations;"  and  that  it  follow* 
that,  if  the  tax  act  is  unconstitutional  as 
to  domestic  corporations,  the  imposition  of 
the  tax  in  question  upon  the  Missouri 
corporation  "would  violate  the  obligations 
of  the  contract"  and  would  deny  to  it  "the 
equal  protection  of  the  laws." 

In  the  case  of  Kansas  City,  Ft  S.  &  M.  R. 
Co.  V.  Botkin,  decided  this  day  [240  U.  S. 
227,  ante,  617,  36  Sup.  Ct.  Rep.  261],  we 
have  considered  the  arguments  against  the 
tax  imposed  by  the  statute  upon  domestic 
corporations,  and  we  have  found  the  objec- 
tions to  be  untenable.  Thus,  the  sole  bants 
for  the  attack  made  by  the  plaintiffs  in 
error  upon  the  statute  fails,  and  the  judg- 
ment must  be  affirmed. 

Judgment  affirmed. 


[240]    ST.    LOUIS    &    SAN   FRANCISCO 
RAILROAD  COMPANY,  Plff.  in  Err., 

V. 

H.  B.  SHEPHERD. 

(See  S.  C.  Reporter's  ed.  240-242.) 

Error  to  state  court  —  Federal  question 
—  when  raised  in  time. 

1.  A  Federal  question  first  set  up  and 
asserted  in  a  petilion  for  rehearing  after 
the  judgment  in  the  trial  court  had  been 
affirmed  by  the  highest  court  of  the  state 
will  not  support  the  jurisdiction  of  the  Fed- 
eral Supreme  Court  on  writ  of  error,  where 
the  petition  was  not  entertained,  but  waa 
denied,  without  passing  on  the  Federal  ques- 
tion thus  tardily  raised. 

[For    other    cases,    see    Appeal    and     Error, 
1292-1310.   in   Digest   Sup.   Ct.  1008.1 

EIrror  to  state  court  —  frivolous  Fed- 
eral question. 

2.  The  contention  that  due  effect  waa 

Note. — On  the  general  subject  of  writs 
of  error  from  United  States  Supreme  Court 
to  state  courts — see  notes  to  Martin  ▼. 
Hunter,  4  L.  ed.  U.  S.  97 ;  Hamblin  v.  West- 
ern Land  Co.  37  L.  ed.  U.  S.  267;  Re  Bu- 
chanan, 39  L.  ed.  U.  8.  884;  and  Kipley  t. 
Illinois,  42  L.  ed.  U.  S.  998. 

On  what  adjudications  of  state  courts  can 
be  brought  up  for  review  in  the  Suprema 
Court  of  the  United  States  by  writ  of  error 
to  those  courts — see  note  to  Apex  Ttuuqp. 
Co.  V.  Garbade,  62  L..RJI.  618. 

On  how  and  when  questions  must  bs 
raised  and  decided  in  a  state  court  in  ordar 
to  make  a  case  for  a  writ  of  error  from  th* 
Supreme  Court  of  the  United  SCatcs  sea 
note  to  Mutual  L.  Ins.  Co.  v.  McGrew,  6S 
L.RJL  33. 

240  V.  B. 


1915. 


ST.  LOUIS  ft  S.  F.  R.  CO.  ▼.  SHEPHERD. 


not  sAymk,  in  an  action  for  damages  result- 
ing from  alleged  unreasonable  delay  in  the 
transportation  of  cattle,  to  the  provisions 
of  the  act  of  June  29,  1906  (84  Stat,  at  L. 
607,  chap.  6694,  Comp.  Stat  1913,  |  8661), 
limiting  the  time  that  cattle  in  interstate 
transit  may  be  confined  in  cars  without  be- 
ing unloaded,  is  too  devoid  of  merit  to  serve 
as  the  basis  of  a  writ  of  error  from  the 
Federal  Supreme  Court  to  a  state  court, 
where  the  question  whether  l^e  transporta- 
tion reasonably  could  have  been  completed 
within  the  maximum  time— thirl^-aix  hours 
— ^was  the  subject  of  direct  and  eonflicting 
testimony,  and  was  submitted  te  the  jury 
as  one  of  fact,  with  instructions  that,  under 
the  Federal  law,  the  carrier  could  not  keep 
the  stock  in  the  cars  longer  than  thirty-six 
hours,  and  that  if  the  jury  finds  from  the 
evidence  that  it  was  not  reasonably  possible 
for  the  shipment  to  reach  its  destination 
within  that  limit,  it  is  not  liaUe  for  the 
dela^  caused  by  the  unloading,  and  no  ex* 
oeption  was  reserved  to  this  instruction,. no 
modification  of  it  was  suggested,  and  no 
other  instruction  upon  the  subject  was  re- 
quested. 

[For    other    cases,    see    Appeal    and    Error, 
1110-1137.  in  Digest  Snp.  Ct  1908.] 

[No.  160.] 

Submitted  January  12,  1916.    Decided  Feb- 
ruary 21,  1916. 

IK  ERROR  to  the  Supreme  Court  of  the 
State  of  Oklahoma  to  review  a  judg- 
ment which  affirmed  a  judgment  of  the 
County  Court  of  Murray  County,  in  that 
state,  in  favor  of  plaintiff  in  an  action 
against  a  carrier  for  damages  due  te  unrea- 
sonable delay  in  transporting  an  interstate 
shipment  of  cattle.  Dismissed  for  want  of 
jurisdiction. 

See  same  case  below,  40  Okla.  680,  139 
Pac.  833. 

The  facta  are  stated  in  the  opinion. 

Mr.  W.  F.  Evans  submitted  the  causA 
for  plaintiff  in  error.  Messrs.  R.  A.  Klein- 
Schmidt  and  E.  H.  Foster  were  on  the  brief : 

The  righte  and  remedies  afforded  a  ship- 
per in  interstate  commerce  by  the  provi- 
sions of  the  interstate  commerce  act  and  ite 
amendmenta  are  exclusive  of  all  others,  ex- 
cept such  as  are  given  by  existing  Federal 
law. 

Texas  A  P.  R.  Co.  t.  Abilene  Cotton  Oil 
Co.  204  U.  a  426,  61  L.  ed.  653,  27  Sup.  Ct 
Rep.  860,  0  Ann.  Gas.  1076;  Adams  Exp. 
Co.  T.  Croninger,  226  U.  S.  491,  67  L.  ed. 
814,  44  LJLA.(N.S.)  267,  83  Sup.  Ot.  Rep. 
148;  Kansas  City  Southern  R.  Co.  v.  Carl, 
227  U.  S.  639,  67  L.  ed.  683,  33  Sup.  Ct.  Rep. 
391;  Missouri,  K.  &  T.  R.  Co.  v.  Harriman, 
227  U.  S.  667,  67  L.  ed.  690,  33  Sup.  Ct. 
Rep.  897-;  Wells,  F.  &  Co.  v.  Neiman-Mar- 
cus  Co.  227  U.  S.  469,  67  L.  ed.  600,  33  Sup. 
Ct  Rep.  267;  St.  Louis,  L  M.  A  a  R.  Co. 
60  li.  ed. 


V.  Edwards,  227  U.  S.  265,  57  L.  ed.  606, 
33  Sup.  Ct.  Rep.  262;  Barrett  v.  New  York, 
232  U.  S.  14,  58  L.  ed.  483,  34  Sup.  Ct.  Rep. 
203;  Boston  &  M.  R.  Co.  v.  Hooker,  233  U. 
S.  97,  67  L.  ed.  868,  LJIA.1916B,  460,  34 
Sup.  Ct.  Rep.  626,  Ann.  Cas.  1915D,  503; 
George  N.  Pierce  Co.  v.  Wells,  F.  &  Co.  236 
U.  a  278,  69  L.  ed.  676,  36  Sup.  Ct.  Rep. 
351;  Charlesten  &  W.  C.  R.  Co.  v.  Vam- 
viUe  Furniture  Co.  237  U.  S.  697,  69  L.  ed. 
1137,  36  Sup.  Ct.  Rep.  716;  Atchison,  T.  & 
S.  F.  R.  Co.  V.  Robinson,  233  U.  S.  173,  68 
L.  ed.  901,  34  Sup.  Ct  Rep.  556. 

The  stipulation  that  the  live  stock  was 
not  te  be  transported  within  any  specific 
time,  ete.,  is  valid. 

Smith  V.  Chicago,  R.  I.  &  P.  R.  Co.  112 
Mo.  App.  610,  87  S.  W.  9;  Fulbright  v.  Wa- 
bash R.  Co.  118  Mo.  App.  482,  04  S.  W.  002 ; 
Gilbert  v.  Chicago,  R,  I.  &  P.  R.  Co.  132 
Mo.  App.  697,  112  S.  W.  1002;  St  Louis,  I. 
M.  &  S.  R.  Co.  V.  Jones,  93  Ark.  537,  137 
Am.  St  Rep.  99,  125  S.  W.  1025;  Cleveland, 
C.  C.  &  St.  L.  R.  Co.  V.  Heath,  22  Ind.  App. 
47,  63  N.  E.  198. 

No  duty  of  a  common  carrier  te  trans- 
port and  deliver  live  stock  in  season  for  a 
particular  market  exista  at  common  law,  in 
the  absence  of  an  express  undertaking  to 
that  effect. 

6  Am.  &  Eng.  Eno.  Law,  461. 

If  plaintiff  in  error  had  undertaken  by 
express  contract  te  deliver  this  live  stock 
in  season  for  the  market  of  May  15th,  that 
contract  would  have  been  void. 

Chicago  &  A.  R.  Co.  v.  Kirby,  225  U.  S. 
165,  66  L.  ed.  1033,  82  Sup.  Ct  Rep.  648, 
Ann.  Cas.  1914A,  601. 

The  provision  of  the  contract  requiring 
notice  is  valid. 

St  Louis  &  a  F.  R.  Co.  t.  Phillips,  17 
Okla.  264,  87  Pac  470;  St.  Louis  &  S.  F.  R. 
Co.  V.  Cake,  25  Okla.  227,  105  Pac  322; 
Missouri,  K.  &  T.  R.  Co.  v.  Hancock,  26 
Okla.  265,  109  Pac  223;  Midland  Valley  R. 
Co.  V.  Ezell,  29  Okla.  40,  116  Pac.  163; 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Conway,  34 
Okla.  356,  126  Pac.  1110;  St.  Louis  &  S.  F. 
R.  Co.  T.  Bilby,  35  Okla.  589, 130  Pac  1089 ; 
St  Louis  &  S.  F.  R.  Co.  v.  Zickafoose,  39 
Okla.  302,  136  Pac  406,  6  N.  C.  C.  A.  717; 
Chicago,  R.  L  &  P.  R.  Co.  V.  Bruce,  —  Okla. 
— ,  150  Pac  880;  St.  Louis  &  S.  F.  R.  Co. 
V.  Pickens,  —  Okla.  — ,  151  Pac  1056;  St 
Louis  ft  S.  F.  R.  Co.  t.  Waggoner,  —  Okla. 
— ,  162  Pac  448. 

The  provision  of  the  contract  limiting  the 
time  in  which  te  bring  suit  is  valid. 

Missouri,  K.  &  T.  R.  Co.  t.  Harriman,  227 
U.  S.  667,  67  L.  ed.  690,  33  Sup.  Ct  Rep. 
397;  Missouri,  K.  &  T.  R.  Co.  t.  Hancock, 
26  Okla.  266,  109  Pac  223;  St  Louis  &  S. 
F.  R.  Co.  V.  Pickens,  —  Okla.  — ,  151  Pac 
1066. 


240-242 


SUPIIEME  COURT  OF  THE  UNITED  STATES. 


Cot.  Tbbm, 


The  contract  stipulations  do  not  exempt 
the  carrier  from  liability  for  negligence. 

Hart  V.  Pennsylvania  R.  Co.  112  U.  S. 
331,  28  L.  ed.  717,  6  Sup.  Ct.  Rep.  151; 
Adams  Exp.  Co.  v.  Croninger,  226  U.  S.  401, 
57  L.  ed.  314,  44  L.RA.(NJS.)  257,  33  Sup. 
Ct.  Rep.  148;  Kansas  City  Southern  R.  Co. 
▼.  Carl,  227  U.  S.  630,  57  L.  ed.  683,  33  Sup. 
Ct.  Rep.  301;  St.  Louis  &  S.  F.  R.  Co.  v. 
Phillips,  17  Okla.  264,  87  Pac.  470;  Missoun, 
K.  &  T.  R.  Co.  V.  Hancock,  26  Okla.  265,  100 
Pac.  223;  Midland  Valley  R.  Co.  v.  Ezell,  20 
Okla.  40,  116  Pac.  163;  Chicago,  R.  I.  &  P. 
R.  Co.  V.  Conway,  34  Okla.  365,  125  Pac 
1110;  St.  Louis  &  S.  F.  R.  Co.  v.  Zickafoose, 
30  Okla.  302, 135  Pac.  406,  6  N.  C.  C.  A.  717 ; 
Missouri,  K.  &  T.  R.  Co.  v.  Harriman,  227 
U.  S.  657,  57  L.  ed.  600,  33  Sup.  Ct.  Rep. 
307. 

The  effect  of  the  decision  of  the  supreme 
coiurt  of  Oklahoma  is  to  render  plaintiff  in 
error  liable  for  delay  incident  to  compliance 
with  an  act  of  Congress. 

Galveston,  H.  &  S.  A.  R.  Co.  v.  Wamken, 
12  Tex.  Civ.  App.  645,  35  S.  W.  72;  St. 
Louis,  I.  M.  A,  S.  R.  Co.  v.  Davenport,  07 
Ark.  82,  133  S.  W.  186;  St.  Louis,  I.  M.  & 
8.  R.  Co.  V.  Smith,  —  Tex.  Civ.  App.  — , 
135  S.  W.  507 ;  St.  Louis,  L  M.  &  S.  R:  Co. 
V.  West  Bros.  —  Tex.  Civ.  App.  — ,  150  S. 
W.  142. 

Mr.  J.  B.  Thompson  filed  a  brief  for  de- 
fendant in  error. 

Mr.  Justice  Van  Dcvanter  delivered  the 
opinion  of  the  court: 

This  was  an  action  for  damages  resulting, 
as  was  alleged,  from  unreasonable  delay  in 
transporting  cattle  from  Fort  [241] 
Worth,  Texas,  to  Kansas  City,  Missouri,  in 
May,  1000.  The  plaintiff  had  a  verdict  and 
judgment,  and  the  latter  was  affirmed.  40 
Okla.  580,  130  Pac.  833.  The  errors  as- 
signed are  that  due  effect  was  not  given  to 
certain  provisions  of  the  Carniack  amend- 
ment to  the  interstate  commerce  act  (§  7, 
chap.  3501,  34  Stat,  at  L.  584,  505,  Comp. 
Stat.  1013,  §S  8563,  8502),  or  to  the  act 
limiting  the  time  that  cattle  in  interstate 
transit  may  be  confined  in  cars  without  be- 
ing unloaded  for  rest,  water,  and  feed. 
Chap.  3504,  84  Stat,  at  Jj.  607,  Comp.  Stat. 
1013,  S  8651. 

The  claim  under  the  Carmack  amendment 
was  first  set  up  and  asserted  in  a  petition 
for  rehearing  after  the  judgment  in  the  trial 
court  wasT  affirmed  by  the  supreme  court 
of  the  state.  The  petition  was  not  enter- 
tained, but  was  denied  without  passing  upon 
the  Federal  question  thus  tardily  raised. 
That  question,  therefore,  is  not  open  to  con- 
sideration here.  Pim  ▼.  St.  Louis,  165  U. 
8.  273,  41  L.  ed.  714,  17  Sup.  Ct.  Rep.  322 ; 
Ifntnal  L.  Ins.  Co.  ▼.  McGrew,  188  U.  8. 


201,  308,  47  L.  ed.  480,  484,  08  LJLA.  33, 
23  Sup.  Ct  Rep.  375;  McCorquodale  v.  Tex- 
as, 211  U.  S.  432,  437,  53  L.  ed.  260,  270,  20 
Sup.  Ct.  Rep.  146;  Forbes  v.  State  Council, 
216  U.  8.  306,  300,  64  L.  ed.  534,  535,  30 
Sup.  Ct.  Rep.  206;  Consolidated  Tump.  Co. 
V.  Norfolk  A  0.  V.  R.  Co.  228  U.  S.  326, 
334,  57  L.  ed.  867,  862,  33  Sup.  Ct.  Rep.  510. 

The  claim  made  under  the  other  act  was, 
that  part  of  the  delay  was  excusable,  be- 
cause the  transportation  reasonably  could 
not  have  been  completed  within  the  maxi- 
mum time^-thirty-six  hours — during  which 
the  cattle  could  be  confined  in  the  cars,  and 
it  therefore  became  necessary  under  the  act 
to  unload  them  for  rest,  water,  and  feed  for 
at  least  five  hours,  as  was  done.  Whether 
the  transportation  reasonably  could  have 
been  completed  within  thirty-six  hours  waa 
the  subject  of  direct  and  conflicting  testi- 
mony, and  was  committed  to  the  jury  as  a 
question  of  fact.  In  that  connection  the 
court  said  to  the  jury-:  "You  are  instruct- 
ed that  under  the  laws  of  the  United  States 
the  defendant  company  could  not  keep  the 
stock  in  this  shipment  in  the  cars  longer 
than  thirty-six  hours,  and  if  you  find  from 
the  evidence  that  it  was  not  reasonably  pos- 
sible that  the  shipment  should  reach  Kan- 
sas City  [242]  within  the  thirty-six-hour 
limit,  then  it  is  not  liable  for  the  delay 
caused  by  the  unloading  of  the  stock."  No 
exception  was  reserved  to  this  instruction, 
no  modification  of  it  was  suggested,  and  no 
other  instruction  upon  the  subject  was  re- 
quested. It  therefore  is  apparent  that  the 
assignments  based  upon  this  statute  are  so 
devoid  of  merit  as  to  be  frivolous. 

Writ  of  error  dismissed. 


W.  S.  EMBREE  et  al.,  Plffs.  in  Err., 

V. 

KANSAS  CITY  &  UBERTY  BOULEVARD 
ROAD  DISTRICT  et  al. 

(See  S.  C.  Reporter's  ed.  242-261.) 

Constitutional  law  —  due  process  of  law 
—  notice  and  hearing  —  public  im- 
provements. 

1.  Landowners  within  a  road  district 
as  established  by  an  order  of  a  county 
court  conformably  to  Mo.  Rev.  Stat.  1000, 
chap.  102,  art.  7,  and  Mo.  Laws  1011,  p.  378, 
were  accorded  the  opportunity  to  be  heard 
upon  the  question  whether  their  lands  would 
be  benefited  bv  its  creation,  which  is  es- 
sential to  satisfy  the  due  process  of  law 
clause  of  U.  S.  Const.  14th  Amend.,  where 

KoTB. — ^As  to  what  constitutes  due  process 
of  law,  ^nerally — see  notes  to  People  ▼. 
O'Brien,  2  L.R.A.  265;  Kunts  v.  Sumption, 
2  L.R.A.  666;  Re  Gannon,  6  L.RJI.  850; 
Ulman  v.  Baltimore,  11  LJLA.  224:  Oilman 

S40  U.  8. 


1916. 


SMBREB  T.  KANSAS  CITY  &  L.  B.  ROAD  DIST. 


the  statute,  ^icb  was  fully  complied  with 
in  this  r^;ara7  requires  that  adequate  pub- 
lic notice  be  ffiven  of  the  presentation  of  the 
petition  for  uie  creation  of  the  district,  and 
the  time  when  it  will  be  considered,  msJces 
provision  for  the  presentation  of  remon- 
strances by  owners  of  land  within  the  pro- 
posed  district,  and  directs  that  the  petition 
and  remonstrances  be  heard  by  the  county 
court,  that  the  court  make  such  change  in 
the  boundaries  "as  the  public  good  may  re- 
quire," and  that  the  boimdaries  be  not  en- 
larged unless  the  owners  of  the  lands  not 
before  included  consent  in  writing  or  appear 
at  the  hearing  and  be  given  an  opportunity 
to  present  objections. 

[For  other  cases,  see  Const itattonal  Law.  745- 
763.  in  Digest  Sop.  Ct.  190S.1 

Constitutional  law  —  due  process  of  law 

—  notice  and  bearlni;  —  public  im- 
provements. 

2.  The  opportunity  of  landowners  with- 
in a  proposed  road  district  to  be  heard  upon 
the  question  whether  their  lands  will  be 
benefited  by  its  creation,  which  is  accorded 
by  Mo.  Rev.  Stat.  1909,  chap.  102,  art.  7, 
and  Mo.  Laws  1911,  p.  373,  is  no  less  suffi- 
cient to  satisfy  the  requirements  of  due 
process  of  law  because  the  particular  road 
to  be  improved  is  yet  to  be  selected. 

[B'or  other  cases,  see  Constitutional  Law,  745- 
7S3,   in   Digest   Sup.  Ct.   1908.] 

Constitutional  law  -*  dne  process  of  law 

—  notice   and   hearing  —  public   im- 
provenicntH. 

3.  Due  process  of  law  does  not  require 
that  landowners  witliin  a  road  district  as 
established  by  an  order  of  a  county  court 
conformably  to  Mo.  Rev.  Stat.  1900,  chap. 
102,  art.  7,  and  Mo.  Laws  3911,  p.  373,  be 
afforded  a  hearing  upon  the  question  wheth- 
er the  benelits  from  the  improvement  of  the 
road  selected  to  the  lands  in  the  different 
sones  will  be  in  accord  with  the  graduated 
ratings  fixed  by  the  statute  itself,  which 
provides  that  the  cost  is  to  be  apportioned 
by  rating  the  lands  without  the  buildings 
thereon  at  their  full  fair  value  where  lying 
within  1  mile  from  the  road,  at  75  per  cent 
of  such  value  where  lying  between  1  and  2 
miles  from  the  road,  and  at  50  per  cent  of 
such  value  where  lying  more  than  2  miles 
therefrom,  and  then  charging  each  tract 
with  a  share  of  the  entire  cost  correspond- 
ing to  its  proportion  of  the  value  of  all  the 
lands  as  so  rated. 

(For  other  esses,  see  Constitutional  Law,  745- 
753.  in  Digest  8np.  Ct.   1908.] 

Constitutional  law  —  dne  process  of  law 

—  hearing  -»  public  improvements. 

4.  A  sufficient  opportunity  to  be  heard 
on  the  question  of  the  value  of  their  lands 
is  accorded  to  landowners  within  a  road 
district  established  by  a  county  court  con- 
formably to  a  general  law  so  as  to  satisfy 
the  due  process  of  law  requirement  of  U. 


S.  Const.,  14th  Amend.,  although  no  bear- 
ing is  given  when  the  lands  are  appraised, 
where  the  mode  of  enforcement  of  the  tax 
assessed  to  meet  the  cost  of  the  road  im- 
provement is  by  a  suit  in  court,  when  own- 
ers aggrieved  by  the  valuations  may  have  a 
full  hearing  on  that  question. 
[For  other  cases,  see  Constitutional  Law,  745« 
768,  in  Digest  Sup.  Ct.  1908.] 

[No.  187.] 

Argued  and  submitted  January  ;18  and  19, 
1916.    Decided  February  21, 1916. 

IN  BRROR  to  the  Supreme  Court  of  the 
State  of  Missouri  to  review  a  decree 
which  affirmed  a  decree  of  the  Circuit  Court 
of  Clay  County,  in  that  state,  in  favor  of 
defendants  in  a  suit  to  restrain  the  issue 
and  sale  of  road  district  bonds.  Affirmed. 
See  same  case  below,  257  Mo.  593,  166  8. 
W.  282. 
The  facts  are  stated  in  the  <^inion. 

Mr.  Harris  li,  Moore  argued  the  cause, 
and,  with  Messrs.  W.  A.  Craven,  Ernest 
Simrall,  James  F.  Simrall,  and  John  M. 
Cleary,  filed  a  brief  for  plaintiffs  in  error: 

Where  the  power  to  determine  the  boun- 
daries of  the  benefit  district,  that  is  to  say, 
what  property  shall  be  assessed  to  pay  for 
an  improvement,  is  delegated  to  a  non- 
legislative  body,  due  process  of  law  de- 
mands notice  and  a  hearing  on  whether  the 
property  so  marked  out  for  taxation  is,  in 
fact,  benefited. 

Fallbrook  Irrig.  Dist.  v.  Bradley,  164  U. 
S.  170,  41  L.  ed.  392,  17  Sup.  Ct.  Rep.  56; 
Argyle  v.  Johnson,  39  Utah,  600,  118  Pac. 
487;  Spencer  v.  Merchant,  125  U.  S.  345,  31 
L.  ed.  763,  8  Sup.  Ct.  Rep.  021;  Soliah  v. 
Heskin,  222  U.  S.  522,  56  L.  ed.  294,  32 
Sup.  Ct.  Rep.  103;  Paulsen  v.  Portland,  140 
U.  6.  30,  37  L.  ed.  637,  13  Sup.  Ct.  Rep.  750; 
Re  Kissel  Ave.  81  Misc.  541, 143  N.  Y.  Supp. 
467;  Bauman  v.  Ross,  167  U.  S.  548,  42  L. 
ed.  270,  17  Sup.  Ct.  Rep.  966. 

While  it  is  true  that  ordinarily  a  benefit 
assessment  that  must  be  collected  by  suit 
cannot  be  said  to  be  wanting  in  due  process 
of  law,  yet  if,  in  such  suit,  the  property 
owner  cannot  have  tried  the  question  of 
whether  his  property  is  benefited,  then  such 
suit  does  not  constitute  due  process  of  law 
as  to  that  question,  or  supply  the  lack  of 
a  hearing  thereon. 

Londoner  v.  Denver,  210  U.  S.  373,  385, 
52  L.  ed.  1103,  1112,  28  Sup.  Ct.  Rep.  708; 
Everington  v.  Park  Comrs.  119  Minn.  334, 


▼.  Tucker,  13  L.R.A.  304;  Pearson  v.  Ycw- 
deU,  24  L.  ed.  U.  S.  436;  and  Wilson  r. 
North  Carolina,  42  L.  ed.  U.  S.  865. 

On  notice  and  hearing  required,  general- 
ly, to  constitute  due  process  of  law — see 
notes  to  Kunt  ▼.  Sumption,  2  L.Rjl.  657; 
60  li.  ed. 


Chauvin  v.  Valiton,  3  L.Rji.  194;  and  Ul- 
man  ▼.  Baltimore,  11  L.R.A.  225. 

On  landowner's  right  to  notice  and  hear- 
ing on  assessment  for  public  improvement 
— see  note  to  Chicago,  M.  ft  St.  P.  R.  Co. 
V.  Janesville,  28  L.R.A.(N.S.)  1201. 
40  «9« 


^45 


SUPREME  COURT  OP  THE  UNITED  STATES. 


Oct.  Tkrm^ 


138  N.  W.  426;  Argyle  v.  Johnson,  39  Utah, 
500,  118  Pac  487;  Central  of  Georgia  R. 
Co.  T.  Wright,  207  U.  S.  127,  62  L.  ed.  134, 
28  Sup.  Ct.  Rep.  47,  12  Ann.  Cas.  463;  Nor- 
wood T.  Baker,  172  U.  S.  260,  43  L.  ed.  443, 
19  Sup.  Ot.  Rep.  187. 

The  decision  of  the  supreme  court  of 
Missouri,  in  so  far  as  it  construes  the  stat- 
ute in  question,  is  conclusive;  and  where 
it  has  held  that  the  statute  contains  a  legis- 
lative determination  of  the  benefit  district, 
then  that  is  a  conclusive  decision  that  there 
is  no  hearing  on  that  question,  when  suit 
is  brought  to  collect. 

Central  of  Georgia  R.  Co.  r.  Wright,  207 
U.  8.  127,  62  L.  ed.  134,  28  Sup.  Ct.  Rep. 
47,  12  Ann.  Cas.  463. 

While  the  fact  that  a  benefit  assessment 
is  to  be  collected  by  suit  ordinarily  con- 
stitutes due  process  of  law,  yet  when  a 
benefit  assessment  has  become  a  final  lien, 
divided  into  twenty  instalments,  recorded 
in  the  public  records  as  a  lien  on  the  land, 
and  sold  for  cash,  even  if  it  is  a  fact  that 
each  property  owner  may  defend  each  of 
the  twenty  suits  required  to  be  brought 
against  each  separate  piece  of  property,  be- 
ing subject  to  heavy  penalties  and  attor- 
neys' fees  in  case  of  failure  to  make  good 
the  defense  in  whole  or  in  part,  there  is 
neither  such  timely  nor  adequate  hearing  as 
is  necessary  to  constitute  due  process  of 
law. 

Londoner  v.  Denver,  210  U.  S.  873,  385, 
52  L.  ed.  1103,  1112,  28  Sup.  Ct.  Rep.  708; 
Everington  v.  Park  Comrs.  119  Minn.  354, 
138  N.  W.  426;  Argyle  v.  Johnson,  39  Utah, 
500,  118  Pac.  487;  Central  of  Georgia  R. 
Co.  V.  Wright,  supra;  Norwood  v.  Baker, 
172  U.  S.  269,  43  L.  ed.  443,  19  Sup.  Ct. 
Rep.  187. 

Mr.  William  M.  Williams  submitted 
the  cause  for  defendants  in  error.  Mr. 
Claude  Hardwicke  was  on  the  brieif: 

This  court  will  adopt  and  follow  the  con- 
struction given  by  the  supreme  court  of 
Missouri*  to  the  statute  of  that  state  under 
consideration  in  this  case. 

Lindsley  v.  Natural  Carbonic  Gas  Co.  220 
U.  S.  61,  55  L.  ed.  369,  31  Sup.  Ct.  Rep. 
337,  Ann.  Cas.  1912C,  160;  Weightman  v. 
Clark,  103  U.  S.  256,  260,  26  L.  ed.  392, 
393;  Chicago,  M.  A.  St.  P.  R.  Co.  v.  Iowa, 
233  U.  S.  334,  58  L.  ed.  988,  34  Sup.  Ct. 
Rep.  592. 

The  supreme  court  of  Missouri,  in  con- 
struing the  statute  of  that  state  under  re- 
view in  this  case,  held  that  the  only  method 
provided  for  the  collection  of  taxes  assessed 
for  the  benefits  to  the  lands  in  the  road  dis- 
trict is  by  suit  upon  tax  bills  in  the  ordi- 
nary courts  of  justice,  and  that  in  said 
suit  all  the  defenses  the  landowner  may 
616 


have,  from  the  inception  of  the  proceedings 
to  the  judgment  upon  the  tax  bill,  may  be 
interposed. 

Embree  ▼.  Kansas  City  &  L.  Boulevard 
Road  Dist.  257  Mo.  611,  166  S.  W.  282. 

The  supreme  court  of  Missouri,  having 
construed  Mo.  Rev.  Stat.  1909,  chap.  102, 
art.  7,  as  amended  in  1911,  providing  for 
the  organization  of  special  benefit  assess- 
ment road  districts,  to  require  the  enforce- 
ment of  the  tax  assessed  upon  lands  in  th» 
district,  by  suit  upon  a  tax  bill  in  a  court 
of  competent  jurisdiction,  with  proper 
service  of  process  upon  the  landowner,  as  in 
ordinary  actions,  with  all  defenses  against 
the  tax  open  to  the  landowner,  such  statute 
does  not  deny  due  process  of  law,  and  is  not 
in  confiict  with  the  14th  Amendment  of  the 
Federal  Constitution. 

Embree  v.  Kansas  City  &,  L.  Boulevard 
Road  Dist.  257  Mo.  603,  166  S.  W.  282; 
Hagar  v.  Reclamation  Dist.  Ill  U.  S.  701,. 
28  L.  ed.  569,  4  Sup.  Ct.  Rep.  663;  King  v. 
Portland,  184  U.  S.  61,  46  L.  ed.  431,  22 
Sup.  Ct.  Rep.  290;  Walston  v.  Nevin,  128 
U.  S.  578,  32  L.  ed.  544,  9  Sup.  Ct.  Rep. 
192;  Londoner  v.  Denver,  210  U.  S.  373^ 
385,  52  L.  ed.  1103,  1112,  28  Sup.  Ct.  Rep. 
708;  Davidson  v.  New  Orleans,  96  U.  S.  97^ 
24  L.  ed.  616;  Paulsen  v.  Portland,  149  U. 
S.  30,  37  L.  ed.  637,  13  Sup.  Ct.  Rep.  750; 
St.  Louis  V.  Richeson,  76  Mo.  486. 

While  the  supreme  court  of  Missouri^ 
after  holding  that  the  landowner  is  entitled 
under  the  statute  to  make  any  and  all  de- 
fenses he  may  have  in  a  suit  upon  the  tax 
bill,  did  not  go  further  and  decide  his  right 
to  be  heard  in  the  first  instance  in  opposi- 
tion to  the  organization  of  the  district,  and 
to  the  inclusion  of  his  land  in  the  territory 
to  be  assessed  for  benefits  for  road  improve- 
ments therein,  the  statute  clearly  provider 
for  notice  to  the  landowners  and  an  oppor- 
tunity for  a  preliminary  hearing  upon  these 
issues  before  the  county  court,  and  such 
hearing  was,  in  fact,  accorded  to  the  plain- 
tiffs in  error  in  this  case,  as  provided  by 
the  statute. 

Fallbrook  Irrig.  Dist.  v.  Bradley,  164  U. 
S.  112,  41  L.  ed.  369,  17  Sup.  Ct.  Rep.  56; 
Davidson  v.  New  Orleans,  96  U.  S.  97,  24 
L.  ed.  616. 

Mr.  Justice  Van  Devanter  delivered  the 
opinion  of  the  court: 

This  is  a  suit  to  restrain  the  issue  and 
sale  of  road  district  bonds  and  the  levy 
and  recordation  of  special  taxes  to  pay 
them.  A  trial  of  the  issues  resulted  in  a 
judgment  for  the  defendants,  which  at  first 
was  reversed  and  on  a  rehearing  was  af- 
firmed. 257  Mo.  593,  166  S.  W.  282.  The 
plaintiffs  prosecute  this  writ  of  error. 

When  tike  suit  was  begun  the  road  dis- 

340  U.  8» 


1915. 


SMBREE  ▼.  KANSAS  CITY  &  L.  B.  ROAD  DIST. 


245-248 


trict  had  been  organized,  a  road  bad  been 
selected  for  improvement,  and  preliminary 
steps  had  been  taken  for  issuing  the  bonds 
and  levying  the  special  taxes, — all  conform- 
ably to  the  local  statute.  Rev.  Slat.  (Mo.) 
1909,  chap.  102,  art.  7;  Mo.  Laws  1911,  373. 
The  district  is  about  7  miles  in  length  and 
8  in  width,  and  is  bounded  on  the  greater 
part  of  one  side  by  the  Missouri  river.  The 
road  selected  for  improvement  extends 
through  the  district  in  the  direction  of  its 
length.  The  cost  of  the  improvement  is  to 
be  met  temporarily  by  the  issue  and  sale 
of  bonds,  and  ultimately  by  the  levy  and 
collection  of  special  taxes  upon  all  the  lands 
in  the  district.  The  cost  is  to  be  appor- 
tioned by  rating  the  lands — without  the 
buildings  thereon — at  their  full  fair  value 
where  lying  within  1  mile  of  the  road,  at 
75  per  cent  of  such  value  where  lying  be- 
tween 1  and  2  miles  from  the  road,  and  at 
50  per  cent  of  such  value  where  lying  more 
than  2  miles  therefrom  (all  seem  to  be  with- 
in 2  miles  here),  and  then  charging  each 
tract  with  a  share  of  the  entire  cost  cor- 
responding to  its  proportion  of  the  value 
of  all  the  lands  as  so  rated.  The  lands  are 
appraised  by  the  district  commissioners  and 
the  cost  of  the  fmprovement  is  apportioned 
by  the  county  clerk. 

[246]  The  plaintiffs  own  lands  within 
the  district  and  object  to  the  issue  of  the 
bonds  and  to  the  levy  of  the  special  taxes, 
upon  the  ground  that  the  scheme  for  sub- 
jecting the  lands  to  the  payment  of  the  cost 
is  repugnant  to  the  due  process  clause  of  the 
14th  Amendment  to  the  Constitution  of  the 
United  States  in  that  the  landlord  is  not 
afforded  any  opportunity  to  be  heard  on  the 
questions  whether  his  lands  will  be  bene- 
fited by  the  improvement,  whether,  if  bene- 
fited, the  benefits  in  the  different  zones  will 
he  in  accord  with  the  graduated  ratings  be- 
fore indicated,  and  whether  the  appraise- 
ment of  his  lands  for  the  purposes  of  the 
tpportionment  is  fair. 

The  district  was  not  established  or  defined 
by  the  legislature,  but  by  an  order  of  the 
county   court,  made  under  a  general   law. 
Whether  there   was   need   for  the  district, 
and,  if  so,  what  lands  should  be  included 
•and  what  excluded,  was  committed  to  the 
judgment  and  discretion  of  that  court,  sub- 
ject to  these  qualifications:     First,  that  the 
^iistrict  should  contain  at  least  640  acres 
of  contiguous  land  and  be  wholly  within 
the  county;  second,  that  the  court's  action 
should  be  invoked  by  a  petition  signed  by 
the  owners  of  a  majority  of  the  acres  in  the 
proposed  district;  and,  third,  that  public  no- 
tice— conceded   to  be   adequate — should   be 
C;iven,  by  the  clerk  of  the  court,  of  the  pres- 
entation of  the  petition  and  the  date  when 
it  would  be  considered,  and  that  owners  of 
60  li.  ed. 


land  within  the  proposed  district  should  be 
accorded  an  opportunity  to  appear,  either 
collectively  or  separately,  and  oppose  its  for- 
mation. In  this  connection  the  statute 
says:  'The  court  shall  hear  such  petition 
and  remonstrance,  and  shall  make  such 
change  in  the  boundaries  of  such  proposed 
district  as  the  public  good  may  require  and 
make  necessary,  and  if  after  such  changes 
are  made  it  shall  appear  to  the  court  that 
such  petition  is  signed  or  in  writing  consent- 
ed to  by  the  owners  of  a  majority  of  all  the 
acres  of  land  within  the  district  as  so 
changed,  the  court  shall  make  a  preliminary 
[247]  order  establishing  such  public  road 
district,  and  such  order  shall  set  out  the 
boundaries  of  such  district  as  established 
.  .  .  but  the  boundaries  of  no  district 
shall  be  so  changed  as  to  embrace  any  land 
not  included  in  the  notice  made  by  the 
clerk  unless  the  owner  thereof  shall  in 
writing  consent  thereto,  or  shall  appear  at 
the  hearing,  and  is  notified  in  open  court  of 
such  fact  and  given  an  opportunity  to  file 
or  join  in  a  remonstrance."  The  order  actu- 
ally made  shows  that  four  of  the  present 
plaintiffs,  with  three  others,  appeared  in 
opposition  to  the  petition,  recites  that  "the 
court,  after  hearing  and  considering  said 
petition  and  said  protests  and  remon- 
strances and  all  evidence  offered  in  support 
thereof,  finds  that  the  public  good  requires 
and  makes  necessary  the  organization,  for- 
mation, and  creation  of  such  proposed  pub- 
lic road  district  .  .  .  with  boimdaries 
as  stated  in  said  petition,"  and  sets  out  the 
boundaries  of  the  district  as  established. 

The  sole  purpose  in  creating  the  district, 
as  the  statute  shows,  was  to  accomplish  the 
improvement  of  public  roads  therein, — ^the 
particular  roads  to  be  designated  by  the  dis- 
trict commissioners  and  an  approving  vote 
of  the  landowners. 

As  the  district  was  not  established  by  the 
legislature,  but  by  an  exercise  of  delegated 
authority,  there  was  no  legislative  decision 
that  its  location,  boundaries,  and  needs  were 
such  that  the  lands  therein  would  be  bene- 
fited by  its  creation  and  wfiat  it  was  in- 
tended to  accomplish,  and,  this  being  so,  it 
was  essential  to  due  process  of  law  that  the 
landowners  be  accorded  an  opportunity  to 
be  heard  upon  the  question  whether  their 
lands  would  be  thus  benefited.  If  the  stat- 
ute provided  for  such  a  hearing,  the  de- 
cision of  the  designated  tribunal  would  be 
sufficient,  unless  made  fraudulently  or  in 
bad  faith.  Fallbrook  Irrig  Dist.  v.  Bradley, 
164  U.  S.  112,  167,  174,  175,  41  L.  ed.  369, 
391,  394,  17  Sup.  Ct.  Rep.  56. 

Did  the  statute  contemplate  such  a  hear- 
ing? We  have  [248]  seen  that  it  required 
that  adequate  public  notice  be  given  of  the 
presentation  of  the  petition  for  the  creation 


248-250 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TkBM, 


of  the  dif  trict  and  the  time  when  it  would 
be  considered,  made  provision  for  the  pres- 
entation of  remonstrances  by  o¥mer8  of 
lands  within  the  proposed  district,  and  di- 
rected that  the  petition  and  remonstrances 
be  heard  by  the  county  court,  that  the  court 
make  such  change  in  the  boimdaries  "as  the 
public  good  may  require"  and  that  the 
boundaries  be  not  enlarged  unless  the  owners 
of  the  lands  not  before  included  consent  in 
writing  or  appear  at  the  hearing  and  be 
given  an  opportunity  to  present  objections. 
That  a  hearing  of  some  kind  was  contem- 
plated is  o|t)vious,  and  is  conceded.  But  it 
is  insisted  that  it  was  not  to  be  directed  to 
the  question'  whether  the  lands  included 
would  be  benefited  by  the  creation  of  the 
district  and  what  it  was  intended  to  accom- 
plish. If  that  were  so,  there  would  be  little 
purpose  in  the  hearing  and  no  real  necessity 
for  it. 

True,  the  statute  does  not  in  terms  say 
that  lands  which  will  not  be  benefited  shall 
be  excluded,  or  that  only  such  as  will  be 
benefited  shall  be  included,  but  it  does  say 
that  the  court  shail  make  such  change  in 
the  proposed  boundaries  "as  the  public  good 
may  require."  In  the  presence  of  this  com- 
prehensive direction  there  can  be  no  doubt 
that  the  legislature  intended  to  authorize 
and  require  the  county  court  to  adjust  the 
boundaries  so  they  would  include  only  such 
lands  as  might  be  reasonably  expected  to 
be  benefited  by  the  improvement  of  the  dis- 
trict roads,  and  therefore  might  be  properly 
charged  with  the  cost  of  that  work.  That 
there  is  an  inseparable  union  between  the 
public  good  and  due  regard  for  private 
rights  should  not  be  forgotten. 

Of  course,  the  nature  and  extent  of  the 
hearing  contemplated  by  the  statute  is  a 
question  of  local  law,  and  if  it  were  clear 
that  the  supreme  court  of  the  state  had 
settled  it,  we  should  accept  and  follow  that 
ruling.  Whether  [240]  the  question  has 
been  settled  is  at  least  uncertain.  In  the 
principal  opinion  delivered  on  the  original 
hearing  that  court  said:  "We  hold  that  the 
general  assembly,  in  granting  to  landowners 
of  a  proposed  road  district  the  privilege  of 
being  heard  by  remonstrance,  intended  that 
such  landowners  should  have  the  rij^ht  in 
such  remonstrance  to  urge  against  the  or- 
ganization of  the  district  or  the  inclusion 
of  their  lands  therein  any  statutory  or  con- 
stitutional grounds  which  such  landowners 
may  possess;  and  that  if  such  grounds  be 
valid  the  court  may  exclude  the  lands  of 
the  remonstrants  or  refuse  to  incorporate 
the  proposed  district.  This  ruling  is  ren- 
dered necessary  to  avoid  the  conclusion  that 
the  general  assembly  directed  a  hearing 
without  intending  that  any  relief  might 
thereby  be  obtained."  That  opinion,  al- 
628 


though  copied  into  the  record,  does  not 
appear  in  the  Missouri  Reports.  They 
contain  only  the  opinion  delivered  on  the  re- 
I  hearing.  The  former  may  have  been  entire- 
ly recalled.  If  so,  the  question  dealt  with 
in  the  quotation  made  from  it  has  not  been 
settled,  for  the  later  opinion  is  silent  upon 
the  subject.  But  whether  the  question  be 
settled  or  open  is  not  of  much  importance, 
for,  as  before  indicated,  our  view  of  the 
statute  accords  with  that  expressed  by  the 
state  court  in  the  excerpt  from  the  first 
opinion. 

We  conclude  therefore  that  the  statute 
did  provide  for  according  the  landowners  an 
opportunity  to  be  heard,  when  the  district 
was  created,  upon  the  question  whether 
their  lands  would  be  benefited,  and  also 
that  the  order  establishing  the  district 
shows  that  the  statute  was  complied  with 
in  that  regard. 

But  in  opposition  to  this  conclusion  it  is 
urged  that  an  adequate  hearing  could  not 
be  had  at  that  time  because  the  road  to  be 
improved  had  not  been  selected  and  no  one 
could  say  what  lands  would  be  benefited. 
We  are  not  impressed  with  this  contention. 
As  was  well  understood,  [250]  the  purpose 
in  creating  the  district  was  to  bring  about 
the  improvement  of  its  roads.  Their  num- 
ber, location,  and  condition  were  known,  as 
was  also  the  extent  and  nature  of  their  use. 
The  district  was  of  limited  area  and  the 
proximity  or  relation  of  every  part  to  each 
road  was  patent.  As  applied  to  such  a 
situation,  we  perceive  no  serious  obstacle 
to  determining  with  approximate  certainty 
and  satisfaction  whether  the  improvement 
of  any  one  or  more  of  the  roads — even 
though  no  particular  one  was  as  yet  select- 
ed— ^would  be  of  benefit  throughout  the  dis- 
trict. We  say  with  approximate  certainty 
and  satisfaction,  because  this  is  all  that  is 
required.  At  best  the  question  is  one  of 
opinion  and  degree,  even  where  the  im- 
provement to  be  made  has  been  definitely 
determined.  The  boimdaries  of  drainage, 
irrigation,  and  other  benefit  districts  are 
often  defined  in  this  way.  Indeed,  it  is  con- 
ceded that  had  the  legislature  created  this 
particular  district,  the  present  objection 
would  be  untenable.  If  such  a  body  can 
obtain  the  requisite  information  and  exer- 
cise the  requisite  judgment,  it  is  not  easy 
to  believe 'that  the  task  would  be  more 
difiScult  for  a  county  coiu't  sitting  in  the 
vicinity. 

The  claim  that  the  landowners  are  en- 
titled to  a  hearing  on  the  question  whether 
the  benefits  in  the  different  zones  will  be 
in  accord  with  the  graduated  ratings  of  their 
lands  is  not  seriously  pressed  upon  our  at- 
tention and  requires  but  brief  notice.  The 
ratings  are  not  fixed  in  the  exercise  of  dele- 

S40  U.  8. 


1916. 


HAMILTONBROWN  SHOE  CO.  v.  WOLF  BROS,  ft  CO. 


250,  251 


gated  authoritj,  but  by  the  statute  itself, 
which  must  be  taken  as  a  legislative  de- 
cision that  in  a  district  lawfully  constituted, 
in  the  manner  before  indicated,  the  benefits 
to  the  lands  in  the  different  zones  will  be 
in  approximate  accord  with  the  ratings 
named.  This  being  so,  no  hearing  is  essen- 
tial to  give  effect  to  this  feature  of  the  ap- 
portionment. A  legislative  act  of  this 
nature  can  be  successfully  called  in  ques- 
tion only  when  it  is  so  devoid  of  any  rea- 
sonable basis  as  to  be  essentially  arbitrary 
and  [251]  an  abuse  of  power  (Wagner  v. 
Leaer,  239  U.  S.  207,  ante,  230,  36  Sup.  Ct. 
Bep.  66;  Houck  v.  Little  River  Drainage 
Disi.  239  U.  S.  254,  ante,  266,  36  Sup.  Ct. 
Rep.  58;  Myles  Salt  Co.  v.  Iberia  &  St.  M. 
Drainage  Dist.  239  U.  S.  478,  ante,  392,  36 
Sup.  Ct.  Rep.  204;  Cast  Realty  &  Invest.  Co. 
V.  Schneider  Granite  Co.  240  U.  S.  55,  ante, 
623,  36  Sup.  Ct.  Rep.  254.  And  see  Bi-Metal- 
lic  Invest.  Co.  v.  State  Bd.  of  Equalization, 
239  U.  S.  441,  445,  446,  ante,  372,  375,  36 
Sup.  Ct.  Rep.  141),  which  obviously  is  not 
the  case  here. 

The  claim  that  the  landowners  are  not 
afforded  an  opportunity  to  be  heard  in  re- 
spect of  the  value  of  their  lands  is  also  un- 
tenable. While  no  hearing  is  given  when 
the  lands  are  appraised,  one  is  accorded 
when  the  tax  is  sought  to  be  enforced.  The 
node  of  enforcement  is  by  a  suit  in  a  court 
of  justice,  when,  as  the  supreme  court  of 
the  state  holds,  owners  aggrieved  by  the 
valuation  may  have  a  full  hearing  upon 
that  question.  This  is  due  process.  David- 
son V.  New  Orleans,  96  U.  S.  97,  104,  24 
L  ed.  616,  619;  Hagar  v.  Reclamation  Dist. 
Ill  U.  8.  701,  711,  28  L.  ed.  569,  573,  4 
^np.  Ct.  Rep.  663. 

Judgment  affirmed. 


IHAMILTON-BROWN    SHOE     COMPANY, 

Petitioner, 

V. 

WOLF  BROTHERS  ft  COMPANY. 

(See^S.  C.  Reporter's  ed.  251-263.) 

Appeal  ^  harmless  error  —  measure  of 
damai^s. 

1.  The  adoption  b^  the  master  of  a 
^3neasure  of  recovery  which  might  be  errone- 
ous, if  the  suit  could  be  regarded  as  one  of 
imfair  competition  without  trademark  in- 
iringement,  does  not  require  the  reversal  by 
the  Federal  Supreme  Court  of  a  decree  for 


complainant,  as  recommended  by  the  mas- 
ter, where  a  claim  of  trademark  rieht, 
which  that  court  finds  to  be  well  founded, 
was  asserted  in  the  bill  and  has  not  becsi 
abandoned,  and  the  proofs  adduced  before 
the  master,  and  his  findings  thereon,  are 
as  applicable  to  a  claim  of  compensa- 
tion for  infringement  of  the  trademark  as 
to  a  claim  of  compensation  for  unfair  com- 
petition in  the  absence  of  a  trademark. 
[For  other  cases,  see  Appeal  and  Error,  VIII. 
m.  1.  In  Digest  Sap.  Ct.  1908.] 

Trademark  ^  geographical  or  descrip- 
tive term  —  "American  Girl." 

2.  The  words  "The  American  Girl"  are 
neither  geographical  nor  descriptive  as  ap- 
plied to  women's  shoes  made  and  sold  in 
the  United  States,  and  are  therefore  the 
subject  of  exclusive  appropriation  as  a 
trademark  for  such  product. 

[For  other  cases,  see  Trademark,  II.,  in  Di- 
gest Sup.   Ct.   1008.] 

Certiorari  —  to  circuit  conrt  of  appeals 

—  scope  of  review  —  elTcct  of  prior 

refusal  of  writ. 

3.  The  refusal  of  the  Federal  Supreme 
Court  to  review  by  certiorari  a  decree  of  a 
circuit  court  of  appeals  in  a  trademark  suit 
which,  though  interlocutory,  has  been 
treated  as  settling  the  law  of  the  ease  so 
as  to  furnish  the  rule  for  the  guidance  of 
the  referee,  the  district  court,  and  the  cir- 
cuit court  of  appeals  itself  upon  the  sec- 
ond appeal,  does  not  preclude  the  Supreme 
Court,  when  reviewing  on  certiorari  the 
final  decree  of  the  circuit  court  of  appeals, 
rendered  on  the  second  appeal,  from  no- 
ticing and  rectifying  any  errors  that  may 
have  occurred  in  the  interlocutory  proceed- 
ings. 

[For    other    cases,    see    Certiorari,    II.    c,    in 
Digest  Sap..  Ct.  1008.] 

Damages  -*  lost     profits  —  trademark 
salt.  * 

4.  The  owner  of  .a  valid  trademark  is 
entitled  to  recover  the  profits  acquired  by 
an  infringer  from  infringing  sales. 

[For    other    cases,    see    Damages,    VI.    t,    in 
Digest  Sop.  Ct.  IOCS.] 

Evidence  —  burden    of   proof  —  trade- 
mark case  -*  separation  of  profits. 

5.  The  inherent  impossibility  of  an  ap- 
portionment between  the  profits  attributa- 
ble to  the  use  of  a  simulated  trademark  and 
those  attributable  to  the  intrinsic  merit  of 
the  infringer's  product  is  a  sufliicient  rea- 
son for  not  charging  the  owner  of  a  trade- 
mark, when  suing  the  infringer,  with  the 
burden  of  showing  what  part  of  the  latter's 
profits  were  attributable  to  the  use  of  the 
infringing  mark, — especially  where  the  in- 
fringement was  not  innocent. 

[For   other  cases,   see   Evidence,   II.   k,   1,  in 
Digest  Sup.  Ct.  1008.] 

[No.  37.] 


Note. — On  trademark  in  geographical 
same — see  notes  to  Dyment  v.  Lewis,  26 
L.RJL(N.S.)  73;  and  Elgin  Nat.  Watch 
Co.  V.  Illinois  Watch  Case  Co.  45  L.  ed.  U. 
S.  365. 

On   damages  for  infringement  of  trade- 

60  li.  ed. 


mark  as  affected  by  loss  of  profits — see  Rose 
V.  Hirsh,  51  L.R.A.  823. 

On  certiorari  from  Federal  Supreme 
Court  to  circuit  courts  of  appeals — see 
notes  to  United  States  v.  Dickinson,  53  tu 
ed.  U.  S.  711. 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tkmm, 


Argued  October  28  and  29,  1916.     Decided 
February  21,  1916. 

ON  WRrr  of  Certiorari  to  the  United 
States  Circuit  Court  of  Appeals  for  the 
Eighth  Circuit  to  review  a  decree  which, 
on  a  second  appeal,  reversed  a  decree  of  the 
District  Court  for  the  Eastern  District  of 
Missouri,  awarding  nominal  damages  in  a 
suit  to  restrain  infringement  of  a  trademark 
and  unfair  competition,  with  directions  to 
enter  a  decree  against  defendant  for  the 
damages  recommended  by  the  master.  Af- 
firmed. 

See  same  case  below,  on  first  appeal,  91 
C.  C.  A.  363,  165  Fed.  413;  on  second  ap- 
peal, 124  C.  C.  A.  409,  206  Fed.  611. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Luke  E.  Hart  and  Joseph  W. 
Bailey  argued  the  cause,  and,  with  Messrs. 
H.  S.  Priest,  Morton  Jourdan,  and  Charles 

B.  Howry,  filed  a  brief  for  petitioner: 
Unfair  competition  consists  in  the  sale  of 

the  goods  of  one  manufacturer  or  vendor 
for  the  goods  of  another;  and  if  defendant 
so  conducts  its  business  as  not  to  palm  off 
its  goods  as  those  of  complainant,  the  ac- 
tion fails. 

Howe  Scale  Co.  v.  Wyckoff,  Seamans  & 
Benedict,  198  U.  S.  140,  49  L.  ed.  986,  25 
Sup.  Ct.  Rep.  609;  Standard  Paint  Co.  v 
.  Trinidad  Asphalt  Mfg.  Co.  220  U.  S.  461,  55 
L.  ed.  543,  3  Sup.  Ct.  Rep.  456;  Elgin  Nat. 
Watch  Co.  V.  Illinois  Watch  Case  Co.  179 
U.  S.  665,  45  L.  ed.  365,  21  Sup.  Ct.  Rep. 
270;  Brown  Chemical  Co.  v.  Meyer,  139  U. 
S.  540,  35  L.  ed.  247,  11  Sup.  &t.  Rep.  625; 
Good^ar's  India  Rubber  Glove  Mfg.  Co.  v. 
Goodyear  Rubber  Co.  128  U.  S.  598,  32  L. 
ed.  535,  9  Sup.  Ct.  Rep.  166;  Baker  v. 
Baker,  53  C.  C.  A.  167,  115  Fed.  299;  J.  G. 
Rowley  Co.  v.  Rowlet,  113  C.  C.  A.  386,  193 
Fed.  390;  Rathbone,  S.  &,  Co.  v.  Champion 
Steel  Range  Co.  37  L.RJ^.(N.S.)   258,  110 

C.  C.  A.  596,  189  Fed.*26;  G.  &  C.  Merriam 
Co.  V.  Ogilvie,  95  C.  C.  A.  423,  170  Fed.  167 ; 
Apollo  Bros.  V.  Perkins,  125  C.  C.  A.  192, 
207  Fed.  530;  Rushmore  v.  Badger  Brass 
Mfg.  Co.  117  C.  C.  A.  255,  198  Fed.  379. 
See  also  John  T.  Dyer  Quarry  Co.  v.  Schuyl- 
kill Stone  Co.  185  Fed.  557 ;  N.  K.  Fairbank 
Co.  T.  Windsor,  61  C.  C.  A.  233,  124  Fed. 
200;  Dr.  A.  Reed  Cushion  Shoe  Co.  v.  Frew, 
158  Fed.  552;  Newcomer  v.  Scriven  Co.  94 
C.  C.  A.  77,  168  Fed.  621. 

This  is  a  case  of  alleged  unfair  Competi- 
tion in  business.  It  is  an  action  on  ac- 
count of  alleged  fraudulent  conduct  on  the 
part  of  defendant  to  plaintiff's  injury;  it  is 
not  a  trademark  or  a  patent  case.  The 
plaintiff  can  recover  such  damages  only  as 
it  shows  it  has  sustained,  or  such  profits 
as  defendant  has  made  by  reason  of  the 
6S0 


alleged  unfair  competition.  It  must  show: 
(a)  that  it  has  lost  trade  which  it  other- 
wise could  have  bad  but  for  defendant's 
alleged  wrongful  acts;  or  (b)  that  defend- 
ant sold  its  goods  to  the  trade  as  and  for 
the  plaintiff's  with  the  belief  at  the  time 
of  the  purchase  on  the  part  of  the  trade 
that  it  was  purchasing  plaintifl^s  goods,  and 
not  those  of  defendant. 

Elizabeth  v.  American  Nicholson  Pav.  Co. 
97  U.  S.  126,  24  L.  ed.  1000;  Baker  v.  Baker, 
53  0.  C.  A.  157,  115  Fed.  297;  Newcomer  ▼. 
Scriven  Co.  94  C.  C.  A.  77,  168  Fed.  621; 
Kann  v.  Diamond  Steel  Co.  32  C.  C.  A.  324, 
61  U.  S.  App.  22,  89  Fed.  712;  New  Orleans 
Coffee  Co.  v.  American  Coffee  Co.  124  La.  19, 
49  So.  730;  Dr.  A.  Reed  Cushion  Shoe  Co. 
V.  Frew,  158  Fed.  552,  on  appeal,  89  C.  C. 
A.  577,  162  Fed.  887;  Lawrence  Mfg.  Co.  v. 
Tennessee  Mfg.  Co.  138  U.  S.  549,  34  L.  ed. 
1004,  11  Sup.  Ct.  Rep.  396;  G.  &  C.  Merriam 
Co.  V.  Ogilvie,  95  C.  C.  A.  423,  170  Fed.  169. 

Under  the  analogy  of  the  patent  cases, 
plaintiff  would  not  be  entitled  to  recover 
the  "entire  profits"  made  by  the  defendant 
from  the  manufacture  and  sale  of  American 
Lady  shoes,  but  only  that  part  of  the  "en- 
tire profits"  which  was  due  and  attributable 
to  the  use  of  the  offending  mark. 

Walker,  Patents,  4th  ed.  §§  555,  711; 
Keystone  Mfg.  Co.  v.  Adams,  151  U.  S.  139, 
38  L.  ed.  103,  14  Sup.  Ct.  Rep.  205;  Dobson 
V.  Hartford  Carpet  Co.  114  U.  S.  444,  446, 
29  L.  ed.  178,  179,  5  Sup.  Ct.  Rep.  045; 
Westinghouse  Electric  &  Mfg.  Co.  v.  Wag- 
ner Electric  &  Mfg.  Co.  225  U.  S.  604,  620, 
56  L.  ed.  1222,  1228,  41  L.ILA.(N.S.)  653,  32 
Sup.  Ct.  Rep.  691;  Dowagiac  Mfg.  Co.  v. 
Minnesota  Moline  Plow  Co.  235  U.  S.  641, 
59  L.  ed.  398,  35  Sup.  Ct.  Rep.  221;  Elisa- 
beth V.  American  Nicholson  Pav.  Co.  97  U. 
S.  126,  24  L.  ed.  1000;  Mowry  v.  Whitney, 
14  Wall.  620,  20  L.  ed.  860. 

The  American  Lady  shoes  sold  by  the  de- 
fendant ''since  the  commencement  of  this 
suit"  were  ''accompanied  with  other  mat- 
ter clearly  indicating"  that  they  were  the 
product  of  the  Hamilton-Brown  Shoe  Com- 
pany, and  therefore  the  defendant  cannot 
be  required  to  account  for  them.     * 

Delaware  k  H.  Canal  Co.  v.  Clark,  13 
Wall.  327,  20  L.  ed.  584;  Howe  Scale  Co.  v. 
Wyckoff,  Seamans  &  Benedict,  198  U.  S. 
118,  140,  49  L.  ed.  972,  986,  25  Sup.  Ct.  Rep. 
600;  Dr.  A.  Reed  Cushion  Shoe  Co.  v.  Frew, 
89  C.  C.  A.  577,  162  Fed.  887;  Elgin  Nat. 
Watch  Co.  V.  Illinois  Watch  Case  Co.  179  U. 
S.  665,  45  L.  ed.  365,  21  Sup.  Ct.  Rep.  270; 
Standard  Paint  Co.  v.  Trinidad  Asphalt 
Mfg.  Co.  220  U.  S.  461,  55  L.  ed.  543,  S  Sup. 
Ct.  Rep.  456;  Brown  Chemical  Co.  v.  Meyer, 
139  U.  S.  547,  35  L.  ed.  250,  11  Sup.  Ct. 
Rep.  625;  Goodyear's  India  Rubber  Glove 
Mfg.  Co.  ▼.  Goodyear  Rubber  Co.  128  U.  SL 

240  V.  & 


1915. 


HAIOLTONBROWN  SHOE  00.  t.  WOLF  BRO&  t  00. 


^8,  32  L.  ed.  636,  9  Sup.  Ot  Rep.  106;  Sax- 
lehner  v.  Wagner,  216  U.  8.  376,  64  L.  ed. 
^26,  30  Sup.  €t  Rep.  298;  J.  F.  Rowley  Oo. 
V.  Rowlet,  113  O.  a  A.  386,  193  Fed.  390; 
<1.  &  0.  Merriam  Co.  r.  Ogilvie,  96  G.  a  A. 
423,  170  Fed.  169;  Trinidad  Asphalt  Mfg. 
Co.  V.  Standard  Paint  Go.  90  0.  a  A.  196, 
163  Fed.  977;  Walter  Baker  &  Co.  r.  Oraj, 
^  L.RJL.(KJS.)  899,  113  C.  G.  A.  417,  192 
Fed.  921;  McLean  t.  Fleming,  96  U.  S.  246, 
24  L.  ed.  828;  Coats  y.  Merrick  Tluread  Co. 
149  U.  8.  669,  37  L.  ed.  861, 13  Sup.  Ct.  Rep. 
966;  Proctor  ft  Q.  Co.  v.  Globe  Ref.  Co. 
34  a  G.  A.  406,  92  Fed.  362;  Samson  Cord- 
age Works  T.  Puritan  Cordage  Mills,  197 
Fed.  206;  Centaur  Go.  v.  Marshall,  38  G.  G. 
A.  413,  97  Fed.  786;  Allen  B.  Wrisley  Go. 
T.  Iowa  Soap  Co.  69  a  0.  A.  64,  122  Fed. 
796. 

The  amount  of  the  defendant's  profit  is 
the  amount  that  is  left  after  everj  item 
which  the  manufacture  and  sale  cost  the  de- 
fendant has  been  deducted;  and  if  the  de- 
fendant made  no  profit,  plaintiff  is  entitled 
to  none. 

Keystone  Mfg.  Oo.  t.  Adams,  161  U.  S. 
139,  148,  38  L.  ed.  103,  106,  14  Sup.  Ot 
Rep.  296. 

The  action  of  the  master  and  of  the  court 
•of  appeals  in  refusing  to  allow  the  defend- 
ant, as  an  element  of  the  cost  of  manufac- 
turing and  selling  American  Lady,  shoes,  in- 
terest on  its  capital,  which  was  devoted  ez- 
^lusiYoly  to  the  American  Lady  line  of 
shoes,  oyer  and  above  borrowed  moneys,  is 
erroneous. 

Gould's  Mfg.  Go.  T.  Oowing,  106  U.  S.  263, 
267,  26  L.  ed.  987,  988;  Seabury  ft  Johnson 
T.  Am  Ends,  162  U.  S.  661,  670,  38  L.  ed. 
^63,  666,  14  Sup.  Ct.  Rep.  683;  Troy  Iron 
ft  Nail  Factory  y.  Coming,  6  Blatchf.  328, 
Fed.  Gas.  No.  14,196;  Steam  Stone  Gutter 
Co.  y.  Windsor  Mfg.  Co.  17  Blatehf .  24,  Fed. 
Cas.  Na  13,336. 

Mr.  Lawrence  Maxwell  argued  the 
cause,  and,  with  Messrs.  Simeon  M.  Johnson 
and  Percy  Werner,  filed  a  brief  for  respond- 
ent: 

The  question  is  whether  the  defendants 
haye  or  have  not  knowingly  put  into  the 
hands  of  the  retail  dealers  the  means  of 
deceiving  the  ultimate  purchaser. 

Scheuer  y.  Muller,  20  G.  G.  A.  161,  46  U. 
S.  App.  184,  26  U.  S.  App.  784,  74  Fed.  226; 
Bennison  Mfg.  Co.  y.  Thomas  Mfg.  Go.  94 
Fed.  651 ;  National  Biscuit  Go.  y.  Baker,  96 
Fed.  135;  N.  K.  Fairbank  Co.  y.  R.  W.  BeU 
Mfg.  Co.  23  C.  C.  A.  554,  49  tj.  S.  App.  190, 
77  Fed.  869;  Revere  Rubber  Oo.  y.  Consoli- 
dated Hoof  Pad  Co.  139  Fed.  151;  Lever  y. 
<3oodwin,  L.  R.  36  Ch.  Div.  1,  67  L.  T.  N.  S. 
683,  36  Week.  Rep.  177;  Gulden  y.  Chanoe,! 
106  C.  C.  A.  16,  182  Fed.  303.  ' 

40  li.  ed. 


It  was  evidently  for  the  purpose  of  f acili* 
tating  such  fraud  that  defendant  left  its 
name  off  the  shoe  where  it  would  be  seen 
by  the  ultimate  purchaser,  and  placed  it  in- 
conspicuously on  cartons,  where  it  would 
not  be  seen  by  her  until  after  she  had 
bought  the  shoes,  if  at  all. 

Herring-Hall-Marvin  Safe  Co.  y.  Hall's 
Safe  Go.  208  U.  S.  664,  569,  62  L.  ed.  616, 
620,  28  Sup.  Ct  Rep.  350;  Singer  Mfg.  Co. 
y.  June  Mfg.  Go.  163  U.  S.  177,  41  L.  ed. 
121,  16  Sup.  Ot.  Rep.  1002;  George  G.  Fox 
Go.  y.  Hathaway,  199  Mass.  99,  24  L.RA. 
(NJ3.)   900,  86  N.  S.  417. 

Plaintiff  was  entitled  to  an  account  of 
defendant's  profits. 

Regis  y.  Jaynes,  191  Mass.  249,  77  N.  E. 
774;  Root  y.  Lake  Shore  &  M.  S.  R.  Go.  105 
U.  S.  189,  207,  26  L.  ed.  975,  981;  Tilghmati 
y.  Proctor,  125  U.  S.  136,  148,  31  L.  ed. 
664,  668,  8  Sup.  Ct.  Rep.  894;  Singer  Mfg. 
Go.  y.  June  Mfg.  Co.  163  U.  S.  169,  41  L. 
ed.  118,  16  Sup.  Ct.  Rep.  1002;  Herring- 
HaU-Marvin  Safe  Co.  v.  Hall's  Safe,  208  U. 
a  654,  62  L.  ed.  616,  28  Sup.  Ct.  Rep.  360. 

Defendant  has  infringed  a  ''property" 
right. 

G.  &  G.  Merriam  Oo.  y.  Saalfield,  117  0. 
0.  A.  245,  198  Fed.  369;  Secondary  Riidits 
in  Trade-Mark  Cases,  18  Yale  L.  J.  671; 
Sartor  v.  Schaden,  125  Iowa,  696,  101  N.  W. 
611;  Wotherspoon  v.  Gurrie,  L.  R.  5  H.  L. 
508,  42  L.  J.  Gh.  N.  a  130,  27  L.  T.  N.  S. 
393;  Singer  Mfg.  Co.  y.  June  Mfg.  Co.  163 
U.  S.  169,  188,  41  L.  ed.  118,  125,  16  Sup. 
Ct  Rep.  1002;  Sazlehner  v.  Siegel-Cooper 
Go.  179  U.  S.  42,  46  L.  ed.  77,  21  Sup.  Ct. 
Rep.  16;  Edelsten  v.  Edelsten,  1  DeG.  J.  & 
a  186,  9  Jur.  N.  S.  479,  7  L.  T.  N.  S.  768, 
11  Week.  Rep.  328;  Lever  v.  Goodwin,  L.  R. 
36  Ct.  Div.  1,  57  L.  T.  N.  S.  683,  36  Week. 
Rep.  177;  W.  R.  Lynn  Shoe  Go.  v.  Auburn- 
Lynn  Shoe  Co.  100  Me.  461,  4  L.R.A.(NJ3.) 
960,  62  Atl.  499;  Avery  y.  Meilde,  86  Ky. 
448,  7  Am.  St.  Rep.  604,  3  S.  W.  609;  Regis 
y.  Jaynes,  191  Mass.  245,  77  N.  £.  774; 
Forster  Mfg.  Co.  v.  Cutter-Tower  Co.  211 
Mass.  219,  97  N.  B.  749;  Paul,  Trade-Mark, 
I  326;  Noiaseme  Hosiery  Co.  y.  Straus,  209 
Fed.  496,  131  G.  a  A.  503,  216  Fed.  361;  P. 
B.  Sharpless  Co.  y.  Lawrence,  130  G.  C  A. 
69,  213  Fed.  423. 

Plaintiff  has  sustained  the  burden  of 
proof. 

Avery  y.  Meikle,  86  Ky.  436,  7  Am.  St. 
Rep.  604,  3  S.  E.  609;  Lawrence  Mfg.  Go. 
y.  Tennessee  Mfg.  Go.  138  U.  S.  538,  646, 
34  L.  ed.  998,  1003,  11  Sup.  Ct.  Rep.  396; 
Forster  Mfg.  Co.  y.  Gutter-Tower  Co.  211 
Mass.  219,  97  N.  E.  749;  National  Biscuit 
Co.  y.  Baker,  05  Fed.  136.    • 

"American  Girl"  is  a  valid  trademark. 

Keasbey  v.  Brooklyn  Chemical  Works, 
142  N.  Y.  467,  40  Am.  St.  Rep.  623,  37  N.  E. 


253-265 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


476;  Dennison  Mfg.  Co.  v.  Thomas  Mfg.  Co. 
94  Fed.  653;  Joseph  Banigan  Rubber  Co.  v. 
Bloomingdale,  89  Off.  Gaz.  1670. 

Plaintiff  it  entitled  to  interest  on  the 
amount  awarded  from  March  9,  1910,  the 
date  as  of  which  the  master  stated  the  ac- 
count. 

Tilghman  t.  Proctor,  125  U.  8.  136,  160, 
31  L.  ed.  664,  672,  8  Sup.  Ct.  Rep.  894. 

Mr.  Justice  Pitney  delivered  the  opinion 
of  the  court: 

Respondent,  an  Ohio  corporation  en- 
gaged in  the  manufacture  of  shoes,  filed 
its  bill  of  complaint  on  January  29,  1906, 
in  the  circuit  court  of  the  United  States  for 
the  eastern  district  of  Missouri,  eastern 
division,  against  petitioner,  a  Missouri  cor- 
poration engaged  in  the  same  business,  seek- 
ing an  injunction  to  restrain  infringement 
of  an  alleged  trademark  for  shoes  consist- 
ing of  the  words  "The  American  Girl," 
by  the  use  of  the  words  *' American  Lady" 
as  a  colorable  imitation,  and  also  unfair 
competition  in  trade,  carried  on  by  means 
that  included  the  use  of  the  latter  words; 
and  praying  an  accounting  of  damages  and 
profits.  On  final  hearing  the  circuit  court 
dismissed  the  bill.  Upon  appeal,  the  cir- 
cuit court  of  appeals  (91  C.  C.  A.  363,  165 
Fed.  413)  held  that  "The  American  Girl" 
was  a  geographical  name,  and,  as  applied 
to  women's  shoes,  was  descriptive  merely 
of  shoes  manufactured  in  America  and  to 
be  worn  by  women,  and  not  an  arbitrary 
or  fanciful  name  to  indicate  the  maker,  and 
hence  that  the  term  [254]  as  applied  to 
shoes  was  not  the  subject  of  a  valid  trade- 
mark. But  the  court  held  that  complainant 
was  entitled  to  be  protected  against  imfair 
trade;  that  the  record  disclosed  that  it  and 
its  predecessors  in  business  had  employed 
the  words  "The  American  Girl"  as  a  trade- 
mark continuously  since  the  year  1896,  had 
extensively  advertised  their  shoes  under 
that  name,  with  the  catch  phrase  "A  shoe 
as  good  as  its  name,"  in  trade  journals  and 
newspapers  throughout  the  United  States, 
and  largely  throughout  the  southern  states, 
and  thus  established  an  extensive  trade 
therefor;  and  that  defendant,  by  adopting 
in  the  year  1900  and  thereafter  using  the 
name  "The  American  Lady,"  with  certain 
catch  phrases,  in  connection  with  shoes  made 
by  it,  and  this  with  full  knowledge  of  com- 
plainant's rights,  was  guilty  of  unfair  com- 
petition, tending  to  and  resulting  in  con- 
fusion in  the  trade,  and  that  complainant 
was  entitled  to  relief.  The  decree  of  the 
circuit  court  was  therefore  reversed,  with 
directions  to  -decree  an  injunction  and  an 
accounting  limited  to  the  time  since  the 
eonunencement  of  the  suit. 

Complainant  petitioned  this  court  for  a 

ess 


I  writ  of  certiorari  to  review  that  decision, 
I  but  this  was  denied.  214  U.  S.  514,  53  H 
ed.  1063,  29  Sup.  Ct.  Rep.  696. 

Tliereafter  the  circuit  court,  pursuant  to 
the  mandate  of  the  court  of  appeals,  made 
a  decree  granting  an  injunction  in  accord- 
ance  with  the  opinion  of  that  court,  and 
referring  to  a  master  an  accounting  of  the 
damages  and  profits  for  which  defendant 
might  be  liable,  "limited  to  shoes  sold  by 
the  defendant  since  the  filing  of  the  bill 
in  this  case,  and  which  were  marked  with 
the  name  'American  Lady,'  and  not  accom- 
panied with  any  other  matter  clearly 
indicating  that  such  shoes  were  of  the  manu- 
facture of  the  Hamilton-Brown  Shoe  Com- 
pany." An  accounting  was  had,  extending 
frojn  the  date  of  the  commencement  of  the 
suit  to  March  10,  1910.  Complainant  made 
no  attempt  to  introduce  substantial  proof 
as  to  the  amount  of  [255]  its  damages, 
declaring  that  they  were  practically  in- 
capable of  exact  computation.  All  the 
testimony  was  directed  to  the  question  of 
defendant's  profits. 

The  master  reported  that  during  the  peri- 
od covered  by  the  accounting  defendant  sold 
"American  Lady"  shoes,  which,  because  of 
differences  in  marking,  he  divided  into  three 
classes: 

Class  1.  974,016  pairs  of  shoes  bearing 
the  words  "American  Lady"  stamped  upon 
the  sole,  and  bearing  no  other  impression 
or  distinguishing  mark.  Tlie  profits  upon 
these  were  found  to  be  $254,401.72. 

Class  2.  961,607  pairs  of  shoes  marked 
"American  Lady,"  with  the  words  "Hamil- 
ton-Brown Shoe  Co.,"  but  without  the  word 
"Makers,"  or  other  matter  indicating  that 
the  shoes  were  of  defendant's  manufacture. 
The  profits  upon  these  were  found  to  be 
$190,909.83. 

Class  3.  593,872  pairs  of  shoes  marked 
"American  Lady,"  but  bearing  also  the 
marks  "Hamilton-Brown  Shoe  Co.,  Makers." 
The  profits  .upon  these  were  found  to  be 
$132,740.77. 

The  master  recommended  that  a  judgment 
be  entered  for  the  profits  accruing  from  the 
first  two  classes,  aggregating  $445,311.55. 
The  profits  accruing  from  the  third  claas 
he  held  complainant  was  not  entitled  to  re- 
cover under  the  opinion  of  the  court  of  ap- 
peals and  the  decree  of  the  circuit  court, 
entered  in  accordance  with  it.  Both  parties 
having  filed  exceptions,  the  district  court 
(successor  of  the  circuit  court),  overruled 
those  of  complainant,  sustained  those  of  de- 
fefidant,  and  adjudged  a  recovery  of  $1  nom- 
inal damages.     192  Fed.  930. 

Complainant  appealed  to  the  circuit  court 

of  appeals,  contending  that  a  decree  should 

have  been  rendered  in  its  favor  for  the  prof- 

'  its  upon  the  first  two  classes  of  shoes,  in  ao- 

S40  U.  8. 


1915. 


HAHILTON-BROWN  SHOE  00.  t.  WOLF  BROS,  ft  00. 


266-258 


eordance  with  the  master's  recommendation, 
and  that  it  should  have  included  the  profits 
upon  the  third  class,  which  were  denied  by 
the  master.  The  court  of  appeals  [256] 
reversed  the  decree,  with  directions  that  de* 
fendant's  exceptions  to  the  master's  report 
be  overruled,  that  the  report  be  confirmed, 
and  that  a  decree  be  entered  against  de- 
fekidant  for  the  amount  recommended  by 
him,  with  costs.  124  a  0.  A.  409,  206  Fed. 
6U. 

This  writ  of  certiorari  having  been  al- 
lowed, we  proceed  to  deal  with  the  questions 
presented  by  the  record. 

Regarding  the  case  as  one  of  unfair  com- 
petition without  trademark  infringement*  it 
is  insisted  by  petitioner  that  tbe  normal  re- 
covery does  not  include  the  gains  and  profits 
of  defendant,  according  to  the  rule  admit- 
tedly applicable  in  equity  to  trademark  cas- 
es, but  tiiat  the  injured  party  is  limited  to 
such  damages  as  it  shows  it  has  sustained; 
and  that  the  present  case  is  devoid  of  cir- 
cumstances to  take  it  out  of  the  ordinary 
rule. 

If,  however,  complainant  was  and  is  en- 
titled to  the  use  of  the  words  "The  American 
Girl"  as  a  trademark,  in  the  strict  sense  of 
tbe  term,  and  if  the  proofs  adduced  before 
the  master,  and  his  findings  thereon,  are  as 
applicable  to  a  claim  of  compensation  for 
infringement  of  the  trademark  as  to  a  claim 
of  compensation  for  unfair  competition  in 
the  absence  of  trademark,  it  will  not  be  nec- 
essary to  pass  upon  the  question  of  the 
proper  measure  of  recovery  in  a  non-trade- 
mark case.  As  above  pointed  out,  a  claim 
of  trademark  right  was  asserted  in  the  bill, 
and  it  has  not  been  abandoned.  It  was  over- 
ruled by  the  circuit  court  of  appeals  on  the 
first  appeal,  upon  reasoning  with  which  we 
are  unable  to  concur.  We  do  not  regard  the 
words  'The  American  Girl,"  adopted  and 
employed  by  complainant  in  connection  with 
shoes  of  its  manufacture,  as  being  a  geo- 
graphical or  descriptive  term.  It  does  not 
signify  that  the  shoes  are  manufactured  in 
America,  or  intended  to  be  sold  or  used  in 
America,  nor  does  it  indicate  the  quality  or 
characteristics  of  the  shoes.  Indeed,  it  does 
not,  in  its  primary  signification,  indicate 
shoes  at  all.  It  is  a  fanciful  designation, 
arbitrarily  selected  by  complainant's  [257] 
predeoessors  to  designate  shoes  of  their 
manufacture.  We  are  convinced  that  it  was 
•abject  to  appropriation  for  that  purpose, 
and  it  abimdantlj  appears  to  have  been  ap- 
propriated and  used  by  complainant  and 
those  under  whom  it  claims. 

The  eases  cited  to  the  contrary  are  dis- 
tlngnishable.  In  Delaware  ft  H.  Ganal  Co* 
T.  Clark,  18  Wall.  811,  824,  20  L.  ed.  681, 
§88,  the  word  "Lackawanna"  was  rejected 
■s  a  trademark  for  ooal  because  it  designat- 
•0  li.  ed. 


ed  the  district  in  which  the  ooal  was  pro- 
duced. In  Columbia  Mill  Co.  v.  Alcorn,  150 
U.  S.  460,  466,  37  L.  ed.  1144,  1147,  14  Sup. 
Ct.  Rep.  151,  it  was  held  that  "Columbia" 
could  not  be  appropriated  for  exclusive  use 
as  a  trademark  because  it  was  a  geograph- 
ical name.  So,  with  respect  to  ''Elgin,"  as 
designating  watches  (Elgin  Nat.  Watch  Co. 
▼.  lUinoU  Watch  Case  Co.  179  U.  S.  665, 673, 
45  L.  ed.  365,  878,  21  Sup.  Ct.  Rep.  270)  ; 
"Genesee,"  claimed  as  a  trademark  for  salt 
(Genesee  Salt  Co.  v.  Bumap,  20  C.  C.  A. 
27,  43  U.  S.  App.  243,  73  Fed.  B18 ) ;  "Old 
Country,"  as  a  mark  for  soap  (Allen  B. 
Wrisley  Co.  v.  Iowa  Soap  Co.  59  C.  C.  A. 
54,  122  Fed.  796).  If  the  mark  here  in  con- 
troversy were  "American  Shoes,"  these  cas- 
es would  be  quite  in  point.  (And  see  Shav- 
er T.  Heller  ft  M.  Co.  65  L.R.A.  878,  48 
C.  C.  A.  48,  108  Fed.  821,  826.)  But  "The 
American  Girl"  would  be  as  descriptive  of 
almost  any  article  of  manufacture  as  of 
shoes;  that  is  to  say,  not  descriptive  at  alL 
The  phrase  is  quite  analogous  to  "American 
Express,"  held  to  be  properly  the  subject  of 
exclusive  appropriation  as  a  trademark  for 
sealing  wax  in  Dennison  Mfg.  Co.  v.  Tliomas 
Mfg.  Ck>.  94  Fed.  651,  653. 

It  is  contoided  that  this  question  is  set- 
tled otherwise,  at  least  as  between  these 
parties,  by  the  decision  of  the  circuit  court 
of  appeals  on  the  first  appeal,  and  our  re- 
fusal to  review  that  decision  upon  complain- 
ant's petition  for  a  writ  of  certiorari,  and 
that  the  only  questions  open  for  review  at 
this  time  are  those  that  were  before  the 
court  of  appeals  upon  the  second  appeal. 
This,  however,  is  based  u]Km  an  erroneous 
view  of  the  nature  of  our  jurisdiction  to  re- 
view tiie  judgments  and  decrees  of  the  cir- 
cuit court  of  [258]  appeals  by  certiorari 
under  $  240,  Judicial  Code  [36  Stat  at  L. 
1157,  chap.  231],  derived  from  §  6  of  the 
Evarts  act  of  March  3,  1891,  26  Stat,  at  L. 
828,  chap.  517,  Comp.  SUt.  1913,  §  1217.  As 
has  been  many  times  declared,  this  is  a  ju- 
risdiction to  be  exercised  sparingly,  and  only 
in  cases  of  peculiar  gravity  and  general  im- 
portance, or  in  order  to  secure  uniformity  of 
decision.  Re  Lau  Ow  Bew,  141  U.  S.  583, 
587,  35  L.  ed.  868,  869,  12  Sup.  Ct.  Rep.  43; 
Re  Woods,  143  U.  S.  202,  36  L.  ed.  125,  12 
Sup.  Ct.  Rep.  417;  Lau  Ow  Bew  v.  United 
States,  144  U.  S.  47,  58,  36  L.  ed.  340,  344, 
12  Sup.  Ct.  Rep.  517;  American  Constr.  Co. 
V.  Jacksonville,  T.  ft  K.  W.  R.  Co.  148  U.  S. 
372,  383,  37  L.  ed.  486,  491,  13  Sup.  Ct.  Rep. 
758;  Forsyth  v.  Hammond,  166  U.  S.  506, 
514,  41  L.  ed.  1095,  1098,  17  Sup.  Ct.  Rep. 
665 ;  Fields  v.  United  States,  205  U.  S.  292, 
206,  51  L.  ed.  807,  810,  27  Sup.  Ct.  Rep. 
543^  And,  except  in  extraordinary  cases, 
the  writ  is  not  issued  until  final  decree. 
American  Constr.  Co.  r.  Jacksonville,  T.  ft 


258-260 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbkm» 


K.  W.  R.  Co.  148  U.  S.  372,  378,  384,  37  L. 
ed.  486,  489,  491,  13  Sup.  Ct.  Rep.  758; 
The  Three  Frienda,  166  U.  S.  1,  49,  41  L.  ed. 
897,  913,  17  Sup.  Ct.  Rep.  495;  The  Con- 
queror,  166  U.  S.  110,  113,  41  L.  ed.  937, 
939,  17  Sup.  Ct.  Rep.  510;  Denver  v.  New 
York  Trust  Co.  229  U.  S.  123,  133,  57  L. 
ed.  1101,  1120,  33  Sup.  Ct.  Rep.  657.  The 
decree  that  was  sought  to  be  reviewed  by 
certiorari  at  complainant's  instance  was  not 
a  final  one,  a  fact  that  of  itself  alone  fur- 
nished sufficient  ground  for  the  denial  of 
the  application;  besides  which  it  appears, 
by  reference  to  our  files,  that  the  applica- 
tion was  opposed  by  the  present  petitioner 
upon  the  ground  that  the  case,  however  im- 
portant to  the  parties,  involved  no  question 
of  public  interest  and  general  importance, 
nor  any  conflict  between  the  decisions  of 
state  and  Federal  courts,  or  between  those 
of  Federal  courts  of  different  circuits. 

It  is,  of  course,  sufficiently  evident  that 
the  refusal  of  an  application  for  this  ex- 
traordinary writ  is  in  no  case  equivalent  to 
an  affirmance  of  the  decree  that  is  sought  to 
be  reviewed.  And,  although  in  this  instance 
the  interlocutory  decision  may  have  been 
treated  as  settling  "the  law  of  the  case"  so 
as  to  furnish  the  rule  for  the  guidance  of 
the  referee,  the  district  court,  and  the  court 
of  appeals  itself  upon  the  second  appeal, 
this  court,  in  now  reviewing  the  final  de- 
cree by  virtue  of  the  writ  of  certiorari,  is 
called  upon  to  notice  and  rectify  any  error 
that  may  have  occurred  in  the  interlocutory 
proceedings.  Panama  R.  Co.  v.  [250]  Na- 
pier Shipping  Co.  166  U.  S.  280,  284,  41  L. 
ed.  1004, 1005,  17  Sup.  Ct.  Rep.  572;  United 
States  V.  Denver  &  R.  6.  R.  Co.  191  U. 
S.  84,  93,  48  L.  ed.  106,  109,  24  Sup.  Ct.  Rep. 
33 ;  Lutcher  &  M.  Lumber  Co.  v.  Knight,  217 
U.  S.  257,  267,  64  L.  ed.  757,  761,  30  Sup. 
Ct.  Rep.  505;  Messenger  v.  Anderson,  225 
U.  S.  436,  444,  56  L.  ed.  1152,  1156,  32  Sup. 
Ct.  Rep.  739. 

Having  reached  the  conclusion  that  com- 
plainant is  entitled  to  the  use  of  the  words 
"The  American  Girl"  as  a  trademark,  it  re- 
sults that  it  is  entitled  to  the  profits  ac- 
quired by  defendant  from  the  manifestly  in- 
fringing sales  under  the  label  "American 
Lady," — at  least  to  the  extent^  that  such 
profits  are  awarded  in  the  decree  under  re- 
view. The  right  to  use  a  trademark  is  rec- 
ognized as  a  kind  of  property,  of  which  the 
owner  is  entitled  to  the  exclusive  enjoyment 
to  the  extent  that  it  has  been  actually  u^ed. 
McLean  v.  Fleming,  96  U.  S.  245,  252,  24  L. 
ed.  828,  831;  Manhattan  Medicine  Co.  v. 
Wood,  108  U.  S.  218,  224,  27  L.  ed.  706,  708, 
2  Sup.  Ct.  Rep.  436.  The  infringer  is  re- 
quired in  equity  to  account  for  and  yield 
up  his  gains  to  the  true  owner,  upon  a  prin- 
ciple analogous  to  that  which  charges  a 
6S4 


trustee  with  the  profits  acquired  by  wrong- 
ful use  of  the  property  of  the  cestui  que 
truet.  Not  that  equity  assumes  jurisdic- 
tion upon  the  ground  that  a  trust  exists. 
As  pointed  out  in  Root  v.  Lake  Shore  ft  M. 
S.  R.  Co.  105  U.  S.  189,  214,  26  L.  ed.  975, 
984;  and  Tilghman  v.  Proctor,  125  U.  S. 
136,  148,  31  L.  ed.  664,  668,  8  Sup.  Ct.  Rep. 
894  (patent  cases),  the  jurisdiction  must 
be  rested  upon  some  other  equitable  ground, 
— in  ordinary  cases,  as  in  the  present,  the 
right  to  an  injunction, — ^but  the  court  of 
equity,  having  acquired  jurisdiction  upon 
such  a  ground,  retains  it  for  the  purpose  of 
administering  complete  relief,  rather  than 
send  the  injured  party  to  a  court  of  law  for 
his  damages.  And  profits  are  then  allowed 
as  an  equitable  measure  of  compensation, 
on  the  theory  of  a  trust  ew  malefioio.  In  the 
courts  of  England,  the  rule  seems  to  be  that 
a  party  aggrieved  must  elect  between  dam- 
ages and  profits,  and  cannot  have  both.  In 
this  country,  it  is  generally  held  that  in  a 
proper  case  both  damages  and  profits  may 
be  awarded.  As  already  observed,  the  decree 
under  review  allows  profits  only,  confines 
the  allowance  to  such  as  accrued  [260] 
after  the  commencement  of  the  suit,  and  ex- 
cludes all  sales  where  the  term  "American 
Lady"  was  accompanied  with  any  other 
matter  clearly  indicating  that  suc^  shoes 
were  of  the  manufacture  of  the  Hamilton- 
Brown  Shoe  Company.  It  was  construed  to 
exclude  all  shoes  bearing  in  addition  to 
"American  Lady*'  the  marks  "Hamilton- 
Brown  Shoe  Co.,  Makers."  The  account 
was  based  upon  undisputed  data,  and  no 
reason  is  suggested  why,  if  otherwise  accu- 
rate, it  is  not  as  properly  applicable  upon 
the  theory  of  trademark  as  upon  that  of 
unfair  competition  aside  from  trademark 
infringement,— at  least,  so  far  as  defendant 
is  entitled  to  criticize  it;  complainant  is 
not  attacking  the  decree. 

It  is,  however,  insisted  by  defendant  (pe- 
titioner) that  whether  the  recovery  be  based 
upon  the  theory  of  trademark,  or  upon  that 
of  unfair  competition,  the  profits  recovera- 
ble should  be  limited  to  such  amount  as 
may  be  shown  by  direct  and  positive  evi- 
dence to  be  the  increment  of  defendant's  in- 
come by  reason  of  the  infringement,  and 
that  the  burden  of  proof  is  upon  complain* 
ant  to  show  what  part  of  defendant's  profits 
were  attributable  to  the  use  of  the  infring- 
ing mark.  It  is  said  the  true  rule  is  strict- 
ly analogous  to  that  applied  in  patent  cas- 
es, and  Mowry  v.  Whitney,  14  Wall.  620, 
650,  20  L.  ed.  860,  865;  Elizabeth  v.  Ameri- 
can Nicholson  Pav.  Co.  97  U.  S.  126,  139, 
24  L.  ed.  1000,  1006;  Garretson  v.  Clark, 
111  U.  S.  120,  121,  28  L.  ed.  371,  372,  4 
Sup.  Ct  Rep.  291;  Dobson  v.  Hartford 
Carpet  Co.  114  U.  S.  439,  444,  29  L.  ed.  177, 

S40  V.  8. 


1915. 


HAMILTON-BROWN  SHOE  CO.  t.  WOLF  BROS,  k  00. 


260-26.1 


178,  5  Sup.  Ct.  Rep.  945;  Tilghman  t.  Proc- 
tor, 125  U.  S.  136,  146,  31  L  ed.  664,  667, 
t  Sup.  Ct.  Rep.  894;  Keystone  Mfg.  Co.  v. 
Adams,  151  U.  S.  139,  147,  38  L.  ed.  103, 
105,  14  Sup.  Ct.  Rep.  295;  Wcstinghouse 
Electric  k  Mfg.  Co.  v.  Wagner  Electric  & 
Mfg.  Co.  225  U.  S.  604,  615,  50  L.  ed.  1222, 
1226,  32  Sup.  Ct.  Rep.  691;  and  Dowagiac 
Mfg.  Co.  ▼.  Minnesota  Moline  Plow  Co.  235 
U.  S.  641,  59  L.  ed.  398,  35  Sup.  Ct.  Rep. 
221,  are  relied  upon.  The  rule  invoked  is 
tliat  wliich,  as  pointed  out  in  the  last  two 
of  these  cnses,  is  applicable  where  plaintiff's 
patent  relates  to  a  part  onlj  of  a  machine 
or  combination  or  process,  or  to  particular 
improvements  in  a  machine  or  other  device. 
In  such  case,  where  the  invention  is  used  in 
combination  with  other  elements  of  value 
not  covered  bj  the  patent,  [261]  so  that 
plaintiff's  patent  creates  only  a  pai-t  of  the 
profits,  he  is  entitled  to  recover  only  that 
part,  and  must  give  evidence  tending  to  ap- 
portion the  profits  between  the  patented 
and  unpatented  features.  But,  as  pointed 
out  in  the  Wcstinghouse  Case  (p.  618), 
there  is  a  recognized  exception  where  the 
plaintiff  carries  the  burden  of  proof  to  the 
extent  of  showing  the  entire  profits,  but  is 
unable  to  apportion  them,  either  because  of 
the  action  of  the  wrongdoer  in  confusing 
his  own  gains  with  those  which  belong  to 
plaintiff,  or  because  of  the  inherent  impos- 
sibility of  making  an  approximate  appor- 
tionment. There,  "on  established  principles 
of  equity,  and  on  the  plainest  principles  of 
justice,  the  guilty  trustee  cannot  take  ad- 
vantage of  his  own  wrong." 

Assuming  the  asserted  analogy  to  patent 
cases  to  exist,  a  sufficient  reason  for  not  re- 
quiring complainant  in  the  present  case  to 
make  an  apportionment  between  the  profits 
attributable  to  defendant's  use  of  the  offend- 
ing mark  and  those  attributable  to  the  in- 
trinsic merit  of  defendant's  shoes  is  that 
such  an  apportionment  is  inherently  impos- 
sible. Certainly,  no  formula  is  suggested  by 
which  it  could  be  accomplished.  The  result 
of  acceding  to  defendant's  contention,  there- 
fore, would  be  to  deny  all  compensation  to 
complainant.  And  it  is  to  be  remembered 
tliat  defendant  does  not  stand  as  an  inno- 
cent infringer.  Not  only  do  the  findings  of 
the  court  of  appeals,  supported  by  abundant 
evidence,  show  that  the  imitation  of  com- 
plainant's mark  was  fraudulent,  but  the 
profits  included  in  the  decree  are  confined 
to  such  as  accrued  to  defendant  through  its 
persistence  in  the  unlawful  simulation  in 
the  face  of  the  very  plain  notice  of  complain- 
ant's rights  that  is  contained  in  its  bill. 
As  was  said  by  the  supreme  court  of  Califor- 
nia in  a  similar  case,  Graham  y.  Plate,  40 
CaL  593,  598,  6  Am.  Rep.  639,  640:  "In 
sales  made  under  a  simulated  trademark  it 
<•  L.  ed. 


is  impossible  to  decide  how  much  of  the 
profit  resulted  from  the  intrinsic  value  of 
[262]  the  commodity  in  the  market,  and 
how  much  from  the  credit  given  to  it  by  the 
trademark.  In  the  very  nature  of  the  case 
it  would  be  impossible  to  ascertain  to  what 
extent  he  could  have  effected  sales  and  at 
what  prices  except  for  the  use  of  the  trade- 
mark. No  one  will  deny  that  on  every  prin- 
ciple of  reason  and  justice  the  owner  of  the 
trademark  is  entitled  to  so  much  of  the 
profit  as  resulted  from  the  use  of  the  trade- 
mark. The  difficulty  lies  in  ascertaining 
what  proportion  of  the  profit  is  due  to  the 
trademark,  and  what  to  the  intrinsic  value 
of  the  commodity;  and  as  this  cannot  be  as- 
certained with  any  reasonable  certainty,  it 
is  more  consonant  with  reason  and  justice 
that  the  owner  of  the  trademark  should 
have  the  whole  profit  than  that  he  should  be 
deprived  of  any  part  of  it  by  the  fraudulent 
act  of  the  defendant.  It  is  the  same  prin- 
ciple which  is  applicable  to  a  confusion  of 
goods.  If  one  wrongfully  mixes  his  own 
goods  with  those  of  another,  so  that  they 
cannot  be  distinguished  and  separated,  he 
shall  lose  the  whole,  for  the  reason  that  the 
fault  is  his;  and  it  is  but  just  that  he 
should  suffer  the  loss  rather  than  an  inno- 
cent party,  who  in  no  degree  contributed  to 
the  wrong."  •  To  the  same  effect  are  Avery  v, 
Meikle,  85  Ky.  435,  448,  7  Am.  St.  Rep.  604, 
610,  8  S.  W.  609;  El  Modello  Cigar  Mfg. 
Co.  T.  Gato,  25  Fla.  886,  915,  6  L.R.A.  823, 
829,  28  Am.  St.  Rep.  537,  544,  7  So.  23 ;  Regis 
V.  Jaynes,  191  Mass.  245,  249,  251,  77  N.  £. 
774;  W.  R.  Lynn  Shoe  Co.  v.  Auburn-Lynn 
Shoe  Co.  100  Me.  461,  479,  4  L.R.A.(N.S.) 
9C0,  62  Atl.  499;  Saxlehner  v.  Eisner  k 
M.  Co.  70  C.  C.  A.  452,  138  Fed.  22,  24. 

Finally,  it  is  contended  that  the  account, 
as  stated  by  the  master  and  confirmed  by 
the  circuit  court  of  appeals,  failed  to  make 
due  allowance  for  certain  items  entering  iur 
to  the  cost  of  manufacturing  and  selling 
the  shoes  in  diminution  of  defendant's  prof- 
its, including  interest  on  capital,  deprecia- 
tion of  real  estate,  taxes,  insurance,  advertis- 
ing, and  trade  discounts.  Tliese  are  matters 
of  fact,  respecting  which  we  see  no  suffi- 
cient reason  for  disturbing  the  decree.  One 
of  the  points  [263]  most  earnestly  insisted 
upon  is  that  certain  overhead  charges,  ap- 
pearing on  defendant's  books  as  "Advance 
Boston  House,  $73,772.03,"  and  "Allowance 
to  Boston,  $103,075.14,"  of  which  the  amount 
chargeable  pro  rata  against  "American  Lady" 
shoes  not  marked  "Makers,"  tor  the  period 
covered  by  the  accounting,  was  $10,271.69, 
ought  to  have  been  deducted  in  computing 
defendant's  profits.  The  only  explanation 
of  these  charges  is  in  a  stipulation  of  the 
parties  that  they  "represent  allowances 
made  by  the  wholesale  house  of  Hamilton- 


203,  264 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Term, 


Brown  Shoe  Company  on  goods  shipped  by 
it  to  what  is  known  as  the  'Boston  House', 
being  a  separate  and  distinct  corporation 
from  the  defendant  company,  and  the 
amount  received  by  the  Hamilton-Brown 
Shoe  Company  from  the  'Boston  House'  for 
goods  shipped  to  it  was  $73J72.03  and 
$103,075.14  less  than  the  price  at  which 
the  goods  were  billed  to  that  house,  and 
those  items  do  not  represent  moneys  paid 
by  the  Hamilton-Brown  Shoe  Company  to 
the  'Boston  House,'  or  advances  by  the  Ham- 
ilton-Brown Shoe  Company  to  the  'Boston 
House.' "  If,  in  the  master's  calculation  of 
the  profits,  defendant  had  been  charged 
with  sales  of  the  goods  at  the  prices  at 
which  they  were  billed  to  the  Boston  House, 
the  insistence  that  a  deduction  of  $10,271.69 
ought  to  be  allowed  as  being  in  the  nature 
of  a  trade  discount  would  seem  correct. 
But  that  is  not  made  to  appear,  and  we  can- 
not conclude  that  the  master  erred  in  over- 
ruling this  allowance. 
Decree  affirmed. 

The  Chxet  Justice  and  Mr.  Justice  Tan 
Devanter  are  of  opinion  that  the  term  "The 
American  Girl,"  as  applied  to  women's  shoes 
made  and  sold  in  America,  is  geographical 
and  descriptive,  and  not  subject  to  exclusive 
appropriation  as  a  trademark,  and  that  up- 
on this  record  a  recovery  of  the  entire  prof- 
its is  not  admissible.  They  therefore  dis- 
sent* 


[264]  GUERINI  STONE  COMPANY,  Plff. 

in  Err., 
v. 

P.    J.    CARLIN    CONSTRUCTION    COM- 
PANY. 

(See  S.  C.  Reporter's  ed.  264-283.) 

Contracts  —  construction  —  reference 
to  extrinsic  agreement. 

1.  A  reference  in  a  subcontract  to  the 

general  contract  for  a  particular  purpose 

makes  it  a  part  of  the  subcontract  only  for 

the  purpose  specified. 

[For  other  cases,  see  Contracts,  II.  a,  in  Di- 
gest Sup.  Ct.  1008.] 

Contracts  —  oonstraction  of  subcon- 
tract —  controlling  effect  of  general 
contract. 

2.  The  subcontractor  for  a  part  of  the 
work  called  for  by  a  general  contract  with 
the  United  States  for  the  construction  of  a 
public  building  was  not  bound  by  the  pro- 
visions  of  the  general  contract  so  as  to  be 
obliged  to  submit  to  delays  resulting  from 
the  action  of  the  ffovemment,  where  the 
subcontract,  although  referring  to  the  draw- 

Note. — On  loss  of  profits  as  rn  element  of 
damages  for  breach  of  contract — see  note  to 
Wells  v.  National  Life  Asso.  53  L..R.A.  84. 
€86 


inffs  and  specifications  for  the  purpose  of 
indicating  what  work  was  to  be  done  by 
the  subcontractor  and  in  what  manner,  and 
making  the  supervising  architect  of  the 
Treasury  the  architect  or  referee,  contains 
no  clause  incorporating  into  itself  the  pro- 
visions of  the  general  contract,  or  even  In 
general  terms  referring  to  that  instrument, 
and  expressly  places  upon  the  seneral  con- 
tractor the  obligation  to  provide  all  labor 
and  material  not  includea  in  the  subcon- 
tract in  such  manner  as  not  to  delay  the 
material  progress  of  the  work. 
[For  other  cases,  see  Contracts,  II.  a,  in  Di- 
gest Sup.  Ct.  1008.] 

Contracts  —  breach  of  subcontract  ~ 
delay  by  general  contractor  —  reim- 
bursement of  subcontractor. 

3.  A  provision  in  a  subcontract  which 
extends  the  time  for  completion  in  case 
the  subcontractor  is  delayed  bv  the  fault 
of  the  general  contractor,  and  thus  relieves 
the  subcontractor  from  the  liability  to  liqui- 
dated  damages  imposed  by  the  contract  in 
case  of  failure  to  complete  his  work  with- 
in a  specified  time,  cannot  be  so  construed 
as  to  aeprive  the  subcontractor  of  his  right 
under  another  provision  of  the  subcontract 
to  reimbursement  Tor  any  loss  attributable 
to  any  delay  resulting  from  the  general  con- 
tractor's failure  to  provide  materials  not 
included  in  the  subcontract. 

[For  other  cases,  see  Contracts,  V.  f,  in  Di- 
gest Sup.  Ct.  1908.] 

Contracts  —  breach  of  contract  —  de* 
lay  by  general  contractor  —  '  reim- 
bursement of  subcontractor. 

4.  The  failure  to  furnish  a  foundation 
upon  which  a  subcontractor's  work  could 
be  superimposed  was  a  failure  to  provide 
labor  and  materials  not  included  within  the 
subcontract,  within  the  meaning  of  such 
contract  binding  the  general  contractor  to 
reimburse  the  subcontractor  for  any  loss 
caused  by  delay  resulting  from  the  general 
contractor's  failure  to  provide  such  labor 
and  materials. 

[For  other  cases,  see  Contracts,  V.  f,  in  Di- 
gest Sup.  Ct.  1008.] 

Contracts  —  breach  of  contract  —  de* 
lay  by  general  contractor  —  reim- 
bursement of  subcontractor. 

6.  Delays  attributable  to  action  by  the 
government  were  among  those  intended  to 
be  safeguarded  by  a  provision  in  a  subcon- 
tract for  a  part  of  tiie  work  called  for  by 
a  general  contract  with  the  United  States 
for  the  construction  of  a  public  building, 
that  "the  general  contractors  will  provide 
all  labor  and  materials  not  included  in  this 
contract  in  such  manner  as  not  to  delay  the 
material  progress  of  the  work,  and  in  the 
event  of  failure  so  to  do,  thereby  causing 
loss  to  the  subcontractor,  agree  that  they 
will  reimburse  the  subcontractor  for  such 
loss." 

[For  other  cases,  see  Contracts,  V.  f.  In  Di- 
gest Sup.  Ct.  1008.] 

Trial  —  question  for  Jury  —  lost  profits. 

6.  The  profits  which  a  subcontractor 
probably  would  have  gained  if  the  contract 
had  been  proceeded  with  in  the  ordinary 
manner  should  not  have  been  excluded  from 

S40  V.  8. 


19  J  3. 


GUERINI  STONE  00.  t.  P.  J.  CARLIN  C0N8TR.  CO. 


265 


the  jury  at  contingent  and  speculative  in 
an  action  by  him  against  the  general  con- 
tractors  for  the  latter's  breach  of  the  con- 
tract,  where  there  was  testimony  from  an 
experienced  witness  as  to  the  probable  cost 
to  the  subcontractor  of  lurnisuing  the  ma- 
terials and  doing  the  work  called  for  by  the 
mbeontract. 

[For  other  canps.   see  Trial,  VI.  c,  In  Digest 
Sup.  Ct   IflOS.] 

Trial   —  request     for     instructions  — 
breach  of  contract. 

7.  The  refusal  of  a  requested  instruc- 
tion that  if  the  general  contractor  failed 
to  make  payments  as  called  for  by  the  sub- 
contract on  account  of  work  done  by  the 
subcontractor  in  accordance  with  the  con- 
tract, such  failure  constitutes  a  breach  of 
the  contract  on  the  part  of  the  general 
contractor,  is  not  error,  where  the  subcon- 
tract does  not  specify  the  amouut  of  the 
advance  payments,  or  indicate  how  they 
are  to  be  ascertained,  merely  providing  that 
Uie  contract  price  is  to  be  paid  "in  month- 
ly payments  on  account,  not  to  exceed  in 
amount  85  per  cent  of  the  cost  of  the  work 
actually  erected  in  the  building"  on  con- 
dition that  the  subcontractor  furnish  a 
written  requisition  not  less  than  twelve 
daprs  before  payment  is  required,  and  the 
evidence  fails  to  show  that  the  requisitions 
were  based  upon  the  cost  of  the  work,  or 
that  any  clear  statement  of  such  cost  was 
submitted  with  them. 

(For  otber  cases,  see  Trial,  VII.  d,  in  Dlsefit 
Sup.  Ct.  1908.] 

Trial  -*  requested  instructions  ^  dam- 


8.  It  is  not  error  to  refuse  a  requested 
instruction  as  to  damages  which  contains 
dements  that  would  not  properly  be  ap- 
plicable if  recovery  should  be  based  solely 
upon  some  of  the  grounds  of  action  declared 
upon. 

(Vor  other  cases,  see  Trial,  VII.  d,  in  Digest 
Sup.  Ct.  190S.J 

[No.  78.] 

Argued  and  submitted  November  12,  1015. 
Decided  February  21,  1916. 

JN  ERROR  to  the  District  Court  of  the 
United  States  for  Porto  Rico  to  review 
a  judgment  for  a  part  of  the  damages 
sought  by  a  subcontractor  in  an  action 
against  the  general  contractor  for  a  breach 
of  contract.  Reversed  and  remanded  for 
further  proceedings. 
The  facts  are  stated  in  the  opinion. 

Mr.  Edward  S.  Paine  argued  the  cause 
and  filed  a  brief  for  plaintiff  in  error: 

The  terms  of  the  contract  between  the 
govemment  and  the  general  contractor  are 
Boi  to  be  incorporated  in  the  contract  be- 
tween plaintiff  and  defendant,  and  they 
famish  no  defense  to  the  defendant  under 
the  circumstances  here  alleged  and  proven. 

Noyes  v.  Butler  Bros.  98  Minn.  448,  108 
N.  W.  839;  Modern  Steel  Structural  Co.  t. 
«•  Ju  ed. 


English  Constr.  Co.  129  Wis.  31,  108  N.  W. 
70;  Mannix  ▼.  Tryon,  152  Cal.  31,  91  Pac. 
983;  Young  y.  Borzone,  26  Wash.  4,  66  Pac. 
135,  421;  Moreing  y.  Weber,  3  Cal.  App. 
14,  84  Pae.  220;  2  Page,  Contr.  p.  1730. 

The  court  erred  .in  charging  that  pro- 
spective future  profits  could  not  be  recov- 
ered. 

United  SUtes  y.  Behan,  110  U.  S.  338,  28 
L.  ed.  168,  4  81;^.  Ct.  Rep.  81;  Ironton  y. 
Harrison  Constr.  Co.  129  C.  C.  A.  29,  212 
Fed.  353;  Anvil  Min.  Co.  v.  Humble^  153 
U.  8.  540,  38  L.  ed.  814,  14  Sup.  Ct.  Rep. 
876,  18  Mor.  Min.  Rep.  98;  Pennsylvania 
Steel  Co.  y.  New  York  City  R,  Co.  117  C. 
C.  A.  503,  198  Fed.  721 ;  Kenney  y.  Knight, 
127  Fed.  403. 

The  court  erred  in  charging  that  the  de- 
fendant could  not  be  liable  in  money  dam- 
ages for  delay  in  furnishing  the  granite,  or 
for  delays  other  than  failure  to  provide 
labor  and  material. 

Nelson  t.  Pickwick  Associated  Co.  30  111. 
App.  333;  Del  Genovese  y.  3d  Ave.  R.  Co. 
13  App.  Div.  424,  affirmed  in  162  N.  Y. 
614,  57  N.  £.  1127;  O'Heron  y.  American 
Bridge  Co.  177  111.  App.  405. 

The  court  erred  in  admitting  in  evidence 
an  unaccepted  bid  as  proof  of  the  cost  of 
completing  the  work  covered  by  plaintiff's 
contract. 

Sharp  y.  United  States,  191  U.  8.  341, 
48  L.  ed.  211,  24  Sup.  Ct.  Rep.  114;  Hine 
V.  Manhattan  R.  Co.  132  N.  Y.  481,  15 
L.R.A.  591,  30  N.  £.  985. 

Mr.  Francis  H.  Dexter  submitted  the 
cause  for  defendant  in  error. 

Mr.  Justice  Pitney  delivered  the  opin- 
ion of  the  court: 

We  have  here  under  review  a  judgment 
for  damages  in  favor  of  plaintiff  in  error 
against  defendant  in  error,  reversal  being 
asked  upon  the  ground  that,  through  errone- 
ous rulings  made  by  the  trial  judge,  the  re- 
covery was  unduly  limited.  The  writ  of 
error  was  sued  out  under  §  244,  Jud.  Code 
(act  of  March  3,  1911,  chap.  231,  36  Stat, 
at  L.  1087,  1157,  Comp.  Stat.  1913,  §§  968, 
1221),  prior  to  the  act  of  January  28,  1016 
(38  Stat,  at  L.  804,  chap.  22,  §§  3  and  6). 

Defendant,  a  corporation  of  the  state  of 
New  York,  on  December  12,  1910,  secured 
a  contract  with  the  government  of  the 
United  States  for  the  bonstruction  of  a 
postoffice  and  court  building  at  San  Juan, 
Porto  Rico.  A  few  days  later  it  entered 
into  a  subcontract  in  writing  with  one 
Guerini,  by  the  first  paragraph  of  which  he 
agreed:  'To  furnish  and  set  in  position,  in- 
cluding the  concrete  backing,  all  the  imita- 
tion of  sandstone,  and  to  construct  the 
interior  concrete  walls,  concrete  floors,  con- 


HVV 


265-268 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


Crete  roof,  backing  the  granite  construction, 
enclosing  all  the  I  beams  .  .  .  agree- 
able to  the  drawings  and  specifications  made 
by  the  said  architect  (copies  of  which  have 
been  delivered  to  the  subcontractor),  and 
to  the  dimensions  and  explanations  thereon, 
therein  and  herein  [266]  contained,  accord- 
ing to  the  true  intent  and  meaning  of  said 
drawings  and  specifications,"  etc.;  it  being 
agreed  that  the  work  should  be  done  ''under 
the  direction  and  to  the  satisfaction  of  the 
general  contractors  and  James  Knox.  Taylor, 
architect  (acting  as  agents  of  the  owner) 
or  his  or  its  representative.'' 

A  subsequent  paragraph  reads  as  follows: 

"25th.  The  subcontractor  further  agrees 
to  furnish  the  material  and  build  the  con- 
crete footing  complete  to  the  basement  floor 
for  the  sum  of  $6.70  a  cubic  foot. 

''Also  to  furnish  the  materials  and  build 
all  the  sidewalks  for  the  sum  of  $1.85  a 
square  yard. 

"Also  set  in  position  all  the  granite  walls, 
steps,  balusters,  buttresses,  and  curbing, 
and  all  other  granite  work  for  the  sum  of 
40  cents  a  square  foot  surface.  The  three 
above  items  to  be  at  the  option  of  the  gen- 
eral contractor.    .    .    .** 

Thereafter  the  plaintiff  corporation  was 
formed  under  the  laws  of  Massachusetts, 
and  Guerini  transferred  the  contract  to  it. 
Defendant  was  notified  of  this,  expressed 
satisfaction  in  writing  under  date  Febru- 
ary 20,  1911,  and  thereafter  dealt  with 
plaintiff  as  subcontractor. 

At  a  later  time,  defendant  exercised  the 
third  only  of  the  options  given  to  it  by  the 
25th  paragraph. 

The  plan  of  the  building  contemplated  a 
foundation  of  concrete  and  piles,  which  was 
to  be  constructed  by  defendant  complete  to 
the  basement  fioor;  above  this  a  basement 
story,  surfaced  with  granite  blocks  to  be 
furnished  by  defendant  (as  a  practical  mat- 
ter, to  be  sent  from  the  United  States)  and 
to  be  set  in  position  by  plaintiff  under  the 
accepted  option.  The  blocks  were  to  be 
backed  witii  concrete,  to  be  furnished  and 
set  by  plaintiff.  Above  the  basement  story, 
the  exterior  walls  were  to  be  faced  with 
imitation  sandstone,  backed  with  concrete, 
which,  together  with  interior  walls,  fioors, 
and  roof  of  concrete,  were  to  be  constructed 
by  plaintiff. 

[267]  The  contract  contained  the  follow- 
ing clauses  that  bear  upon  the  matters  in 
dispute: 

"fith.  The  subcontractor  shall  and  will 
proceed  with  the  said  work  and  every  part 
and  detail  thereof  in  a  prompt  and  diligent 
manner,  ...  and  shall  and  will  wholly 
finish  Uie  said  work  according  to  the  said 
drawings  and  specifications  and  this  con- 
tract in  800  days  from  the  date  upon  which 
«88 


the  building  is  ready  to  receive  his  work 
and  after  he  has  been  notified  to  proceed 
by  general  contractors,  and  in'  default  there- 
of, the  subcontractor  shall  pay  the  general 
contractors  the  sum  of  $20  for  every  day 
thereafter  that  the  said  work  shall  remain 
unfinished  as  and  for  liquidated  damages. 
The  subcontractor  further  agrees  to  begin 
work  at  the  building  within  three  daya 
from  the  time  that  he  is  notified  by  tibe 
general  contractors  that  the  building  i» 
ready  to  receive  such  work. 

"Tth.  .  .  .  Should  the  subcontractor 
be  obstructed  or  delayed  in  the  prosecu- 
tion  or  completion  of  the  work  by  neglect, 
delay,  or  default  of  the  owner,  the  archi- 
tect, the  general  contractors,  or  of  any 
other  contractors  employed  by  them  upon 
the  work,  or  by  alterations  which  may  be 
required  in  said  work,  or  by  any  damage 
which  might  happen  by  fire,  lightning, 
earthquake,  or  cyclone,  or  by  the  abandon- 
ment of  the  work  by  the  employees  through 
no  fault  of  the  subcontractor,  then  the  time 
herein  fixed  for  the  completion  of  the  work 
shall  be  extended  for  a  period  equivalent  to 
the  time  lost  by  reason  of  any  or  all  of  the 
causes  aforesaid,"  etc. 

"11th.  The  general  contractors  will  pro- 
vide all  labor  and  materials  not  included  in 
this  contract  in  such  manner  as  not  to  delay 
the  material  progress  of  the  work,  and  in 
the  event  of  failure  so  to  do,  thereby  causing 
loss  to  the  subcontractor,  agree  that  they 
will  reimburse  the  subcontractor  for  such 
loss;  and  the  subcontractor  agrees  that  if 
he  shall  delay  the  material  progress  of  the 
work  so  [268]  as  to  cause  any  damage  for 
which  the  general  contractors  shall  become 
liable,  then  he  shall  make  good  to  the  gen- 
eral contractors  any  such  damage  over  and 
above  any  damage  for  general  delay,  herein 
otherwise  provided ;  the  amount  of  such  losa 
or  damage  in  either  case,  to  be  fixed  and  de- 
termined by  the  architect,  or  by  arbitra- 
tion, as  provided  in  article  3d  in  this  con- 
tract. 

"12th.  It  is  hereby  mutually  agreed  by 
the  parties  hereto  that  the  sum  to  be  paid 
by  the  general  contractors  to  the  subcon 
tractor  for  said  work  and  materials  shall  be 
sixty-four  thousand  seven  hundred  and  fifty 
dollars  ($64,750),  subject  to  additions  or  de- 
ductions as  hereinbefore  provided,  and  that 
such  sum  shall  be  paid  in  current  funds  by 
the  general  contractors  to  the  subcontractCHr 
in  monthly  payments  on  account,  not  to  ex- 
ceed in  amount  85  per  cent  of  the  cost  of 
the  work  actually  erected  in  the  building, 
provided  that  the  subcontractor  furnishes  to 
the  general  contractors  a  written  requisi* 
tion,  on  a  form  to  be  supplied  by  the  gen* 
eral  contractors,  not  less  than  twelve  daya 
before  payment  is  required,    ..." 

S40  U.  S» 


1015. 


GUERINI  STOXE  CO.  v.  P.  J.  CARLIN  C0N8TR.  00. 


868-271 


The  aetion  was  commenced  in  June,  1912. 
The  complaint,  besides  the  jurisdictional 
ayerments,  alleged  the  making  of  the  con- 
tract between  Guerini  and  defendant,  the 
assignment  to  plaintiff,  and  defendant's  con- 
sent and  recognition  of  plaintiff  as  the  con- 
.  tracting  party;  averred  that  thereafter  and 
during  the  month  of  February,  1911,  at 
defendant's  request  and  in  pursuance  of  the 
terms  of  the  contract,  plaintiff  employed 
and  sent  to  Porto  Rico  its  representatives, 
brou^t  laborers  from  the  United  States 
and  employed  others  in  Porto  Rioo,  organ- 
ized its  working  forces,  purchased  and  sup- 
plied the  necessary  tools  and  materials,  and 
prepared  itself  and  was  ready  and  willing 
to  perform  its  obligations  under  the  con- 
tract, but  that  thereafter  until  the  16th 
day  of  October,  1911,  plaintiff  was  not  per- 
mitted by  defendant  to  proceed  with  the 
work,  owing  to  defendant's  failure  to  pro- 
vide the  necessary  [269]  granite  blocks; 
that  on  that  day  plaintiff  did  proceed  with 
all  possible  diligence  and  performed  all  the 
work  provided  for  by  the  contract  as  fast 
as  defendant,  in  the  course  of  construction 
work,  permitted  plaintiff  to  do  so;  that 
nevertheless  during  the  period  from  October 
16»  1011,  until  March  9,  1912,  the  work  was 
unreasonably  and  unjustifiably  delayed  by 
the  failure  of  defendant  to  provide  neces* 
sary  materials  and  carry  on  its  part  of  the 
constraotion  work  so  as  to  permit  plaintiff 
to  perform  the  work  required  of  it  under 
the  contract,  and  that  plaintiff  was  thereby 
greatly  damaged;  that  on  March  9,  1912, 
all  work  of  every  nature  was  stopped  on 
the  building,  and  plaintiff  was  prevented  by 
defendant  from  continuing  with  any  work; 
that  said  stoppage  "has  continued  ever  since, 
is  still  continuing,  and  .  .  .  will  con- 
tinue for  a  period  of  at  least  several  months 
liereafter,"  and  that  defendant  has  accord- 
ingly committed  a  breach  of  its  obligations 
under  the  contract,  the  result  of  which  has 
been  and  is  to  cause  great  damage  and  loss 
to  plaintiff,  which  has  been  obliged  to  keep 
its  labor  force  on  hand  during  all  of  said 
period  at  great  loss  and  expense;  that  by 
the  terms  of  the  contract  payment  of  not 
more  than  86  per  cent  of  the  amount  of  the 
work  actually  done  was  due  and  payable 
by  defendant  monthly  on  twelve  days'  no- 
tice from  plaintiff  to  defendant,  and  that 
plaintiff  during  the  months  of  December, 
1911,  and  January  and  February,  1912, 
duly  notified  and  demanded  of  defendant 
payment  of  the  sums  due  for  the  work 
actually  performed,  but  that  defendant  con- 
tinuously and  repeatedly  failed  and  refused 
to  make  said  payments;  that  because  of 
said  repeated  violation  and  breach  of  the 
contract  on  the  part  of  defendant,  plaintiff, 
under  date  of  May  22, 1912,  notified  defend- 
•0  L.  ed. 


ant  in  writing  of  its  election  to  terminate 
the  contract  and  bring  its  action  for  dam- 
ages for  breach  thereof;  and  that  plaintiff 
has  offered  to  defendant  to  arbitrate  their 
differences,  but  that  defendant  has  refused. 
Plaintiff  claimed  damages  to  the  amounl  of 
$45,797.45  [270]  for  work  and  labor  per- 
formed, materials  furnished,  and  moneys 
expended  in  and  about  the  performance  of 
the  contract,  and  for  lost  profits.  In  a 
separate  paragraph  an  indebt^lness  of  about 
$40,000  was  alleged,  for  the  reasonable  value 
of  work,  labor,  and  materials  supplied. 

Defendant  ajoswered,  admitting  some  of 
the  averments  of  the  complaint,  but  denying 
that  plaintiff  had  complied  with  the  terms 
of  the  contract  or  had  been  prevented  by 
defendant  from  proceeding  with  and  carry- 
ing on  its  work;  admitting  that  plaintiff 
notified  defendant  of  its  election  to  cancel 
or  rescind  the  contract  and  bring  its  action 
f«r  damages  for  the  alleged  breach  thereof, 
but  denying  that  there  was  cause  for  rescis- 
sion, and  denying  that  plaintiff  had  sus- 
tained damages  as  claimed  by  it.  The  an- 
swer further  set  up  that  the  subcontract 
was  subject  to  all  the  terms  and  conditions 
of  the  principal  contract  made  between  de- 
fendant and  the  government  of  the  United 
States;  that  defendant  had  at  all  times 
[nroceeded  strictly  in  accordance  with  the 
terms  and  conditions  of  the  latter  contract, 
that  during  the  course  of  the  construction 
of  the  building  the  representatives  of  the 
government  found  it  desirable  or  necessary 
to  change  the  manner  of  constructing  the 
foundations,  and  that  this  action  of 
the  government  was  within  its  rights  under 
the  original  contract,  and  plaintiff  was 
bound  thereby  equally  with  defendant. 

The  case  was  tried  before  the  judge  of  the 
district  court  and  a  jury.  Plaintiff  intro- 
duced evidence  tending  to  support  the  ma- 
terial averments  of  its  complaint.  It  ap- 
peared that  in  January,  1911,  defendant  no- 
tified plaintiff's  predecessor  that  'Svork  must 
start  at  once,"  and  that  in  February  plain- 
tiff sent  its  representatives  to  Porto  Rico; 
that  upon  their  arrival  so  little  work  had 
been  done  upon  the  foundations  that  they 
were  unable  to  do  anything  upon  the  build- 
ing itself,  but  preliminary  work  was  done 
in  the  way  of  getting  tools  and  machinery  to 
the  Island,  building  [271]  workshops  and  an 
office,  and  preparing  moulds  for  the  casting 
of  the  artificial  stone;  that  during  the  spring 
and  summer  delay  was  occasioned  by  the 
failure  of  defendant  to  construct  the  founda- 
tions; that  this  continued  until  about  the 
first  week  in  October,  when  the  foundation 
work  and  the  grading  inside  the  foundation 
walls  had  proceeded  to  a  point  that  would 
admit  of  the  eommenoement  of  the  course  of 
granite,  and  enough  granite  was  upon  th^ 


271-278 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbbm» 


IH'ound  to  allow  a  start  to  be  made  of  set- 
ting it.  In  August  or  September  plaintiff 
was  notified  of  defendant's  acceptance  of 
the  option  to  call  upon  plaintiff  to  set  the 
grapite  at  40  cents  per  square  foot,  but 
the  granite  was  slow  in  arriving,  and  some 
of  the  stones  were  misfits,  so  that  the  work 
of  lajing  was  considerably  interrupted. 
There  was  diflScultj  also  with  the  derrick 
equipment,  defendant  having,  under  the  con- 
tract, furnished  two  derricks  and  an  engine, 
but  with  insufficient  power  to  admit  of 
operating  both  derricks  at  the  same  time. 
This  was  remedied,  some  time  in  Decem- 
ber, by  the  provision  of  additional  power. 
The  granite  setting  proceeded  from  the  mid- 
dle of  October  to  the  12th  of  February, 
1912,  plaintiff's  evidence  being  to  the  effect 
that  it  was  set  as  fast  as  delivered,  but  that 
because  the  granite  came  in  separate  ship- 
ments, a  little  at  a  time,  sometimes  with 
needed  blocks  missing,  the  work  of  setting 
it  could  not  be  speeded.  On  or  about  Feb- 
ruary 12,  1912,  plaintiff  stopped  setting 
granite,  with  defendant's  consent. 

The  evidence  tended  to  show  that  much 
of  the  delay  during  the  spring  and  summer 
of  1911  was  occasioned  by  a  change  made 
by  arrangement  between  defendant  and  the 
government  in  the  provisions  of  the  general 
contract  respecting  the  mode  of  construct- 
ing the  foundations.  The  pleader  would 
seem  to  have  limited  the  complaint  respect- 
ing delay  prior  to  October  10,  1911,  to  such 
as  was  due  to  defendant's  failure  to  provide 
granite  blocks,  but  the  evidence  was  not 
thus  limited. 

In  February,  1912,  when  the  granite  work 
had  been  [272]  practically  finished,  it  was 
ascertained  that  the  foundations  had  set- 
tled, and  that  there  were  variations  in  the 
foundation  work  from  the  specifications  as 
agreed  upon  between  the  government  and 
defendant.  On  March  9th  work  was  sus- 
pended by  order  of  the  government,  pending 
an  investigation  which  resultinl  in  showing 
that  practically  the  entire  building  would 
have  to  be  underpinned  in  order  to  secure  a 
safe  foundation.  This  result  was  officially 
communicated  to  defendant  under  date 
March  25,  1912,  and  a  few  days  later,  pur- 
suant to  an  order  of  the  Assistant  Secre- 
tary of  the  Treasury,  all  work  upon  the 
building  was  stopped  ''pending  the  settle- 
ment of  responsibility  for  deviations  from 
contract  requirements  regarding  founda- 
tions." The  question  of  responsibility  lay 
between  defendant  and  the  representatives 
of  the  government;  plaintiff  having  had 
nothing  to  do  with  the  foundations.  Leav- 
ing the  question  undetermined,  the  govern- 
ment, in  the  month  of  May,  1912,  entered 
into  an  agreement  with  defendant  for  under- 
pinning  the  entire  building.  It  perhaps  docs ' 
€40 


I  not  clearly  appear  when  this  work 
commenced,  but  it  was  in  progress  whaa 
the  action  was  begun,  and  Mr.  Berrynuut, 
the  government's  superintendent  of  coB- 
struction  then  in  charge  of  the  building, 
testified:  "This  work  is  now  [Novembtf, 
1912]  about  85  per  cent  completed."  The 
same  witness  testified  that  from  March  9th, 
1912,  until  the  time  of  the  trial,  "condi- 
tions were  such  that  it  was  impossible  for 
the  Guerini  Stone  Company  to  continue 
with  their  work  under  the  contract." 

On  March  9,  1912,  plaintifFs  agent  at  San 
Juan  was  notified  by  defendant's  representa- 
tive there  that  the  Federal  authorities  bad 
'>rdered  all  work  upon  the  building  suspend- 
ed pending  investigation  of  the  foundations. 
On  the  same  day  he  wrote  defendant's  San 
Juan  ofiSce  asking  whether  plaintifTs  men 
should  be  discharged  and  sent  back  to  the 
United  States,  but  got  no  satisfactory  reply. 
Further  correspondence  upon  the  same 
topic  led  to  no  result. 

[273]  Meanwhile,  the  parties  had  been  in 
disagreement  about  payments  on  account. 
The  contract  {\  12)  provided  for  payment 
of  the  contract  price  "in  monthly  payments 
on  account,  not  to  exceed  in  amount  85 
per  cent  of  the  cost  of  the  work  actually 
erected  in  the  building,  provided  that  tlw 
subcontractor  furnishes  to  the  general  con- 
tractors a  written  requisition,  on  a  form  to 
be  supplied  by  the  general  contractors,  not 
less  than  twelve  days  before  payment  is  re- 
quired," etc.  The  contract,  however,  did  not 
provide  how  the  cost  of  the  work  other  than 
the  granite  setting  should  be  ascertained. 
For  the  concrete  backing  and  other  concrete 
work  and  the  imitation  sand-stone  ooyered 
by  the  subcontract,  no  "unit  prices"  were 
specified.  The  price  of  "0.70  a  cubic  foot," 
mentioned  in  the  25th  paragraph  as  the 
optional  price  for  concrete  footings,  was 
treated  by  the  parties  as  if  intended  to 
read  $0.70  per  cubic  yard, — approximately 
26  cents  per  cubic  foot.  This,  however,  hnd 
reference  to  work  that  plaintiff  was  not 
called  upon  to  do,  and  obviously  did  not 
furnish  a  unit  price  for  the  concreting  actu- 
ally done  by  plaintiff. 

In  December,  1011,  and  January,  1912, 
plaintiff  made  written  requisitions  for  pay- 
ments on  account,  based  upon  statements  of 
the  "amount  of  work  completed  to  date." 
They  were  not  complied  with,  and  thd  par- 
ties soon  realized  the  practical  importanee 
of  agreeing  upon  a  unit  price  to  be  em- 
ployed in  estimating  the  amounts  payable. 
According  to  the  testimony  of  Bir.  Con- 
verse, President  and  Treasurer  of  the 
Ciuerini  Company,  he  went  from  Boston  to 
New  York  city  on  February  2,  1912,  by  ap- 
pointment, and  conferred  with  Mr.  Oirlin, 
defendant's  representative,  upon  the  subject 

S40  U.  8. 


1016. 


GUERINI  STONE  00.  ▼.  P.  J.  CARLIN  OONSTR.  CO. 


278-276 


4d  unit  prieet,  and  it  wm  then  agreed  that 
plaintiff  should  make  its  applications  and 
reeeive  its  payments  upon  the  basis  of  a 
certain  written  schedule  of  units,  produced 
by  Mr.  Carlin,  which  specified  (inter  alia) : 
^'Exterior  and  interiov  concrete  walls, 
arches,  and  cement  [274]  work,  $1.07  per 
<nu  It.;  concrete  floors  and  casings,  45 }o.  per 
sq.  ft."  Mr.  Carlin,  in  his  testimony,  denied 
that  such  an  agreement  was  made,  but  ad- 
mitted that  the  schedule  had  been  agreed 
upon  between  defendant  and  the  govern- 
ment's  superintendent  of  construction,  and 
used  as  •  basis  for  payments  by  the  gov- 
^ramenl  to  defendant,  including  payments 
for  the  work  done  by  plaintiff  under  the 
miboontract.  At  the  interview  of  February 
2d,  Mr.  Converse  received  a  check  for  $3,- 
766.50  on  account,  as  against  $12,750  previ- 
ously called  for.  Under  date  of  March  9th 
«  requisition  for  $ll,7Z6M  was  made,  and 
against  this  a  payment  of  $074  was  made 
about  two  weeks  thereafter.  No  other  pay- 
ments were  made  to  plaintiff.  It  appeared, 
however^  that  for  the  work  theretofore 
done  by  plaintiff,  defendant  had  received 
from  the  government  at  least  $13,871.25  (a 
witness  called  by  defendant  said  "about 
$19,000"),  based  upon  the  price  of  $1.07  per 
•cubic  foot  for  concrete.  It  was  explained 
that  this  unit  price  was  fixed  by  the  first 
auperintendent  of  construction,  who  had 
•charge  during  the  year  1011  and  the  first 
month  of  the  following  year,  and  that  his 
aueeessor,  who  took  charge  on  February  1, 
1912,  employed  a  lower  unit  price,  on  the 
basis  of  which  the  Carlin  Company  had  been 
•overpaid  about  $8,000. 

Enough  has  been  said  to  indicate  the  situ- 
ation as  it  stood  on  May.  22,  1012,  on  which 
date  plaintiff  wrote  to  defendant,  reciting 
briefly  its  complaints  respecting  defendant's 
previous  conduct  and  the  stoppage  ol  the 
work,  and  concluding  as  follows: 

"Under  these  circumstances  and  owing  to 
your  entire  failure  to  comply  with  the 
terms  of  the  contract,  we  hereby  notify  you 
that   we  now  terminate  the  contract  and 


additional  expense,  if  any,  above  your  con- 
tract price." 

Plaintiff  further  produced  evidence  tend- 
ing to  show  that  the  moneys  expended  by 
it  in  and  about  the  performance  of  the  con- 
tract amounted  to  upwards  of  $30,000;  that 
if  permitted  to  complete  the  contract  under 
ordinary  conditions,  its  estimated  profits 
would  have  been  about  $9,700;  and  that  de- 
fendant had  taken  over  machinery,  tools, 
etc.,  belonging  to  plaintiff,  estimated  to  be 
worth  from  $3,300  to  $3,800. 

Defendant  to  some  extent  disputed  the 
facts  recounted  in  SPd  inferable  from  plain- 
tiff's evidence,  but  based  its  defense  princi- 
pally upon  the  provisions  of  the  contract 
between  defendant  and  the  government, 
which  it  was  insisted  must  be  read  into  the 
contract  between  plaintiff  and  defendant. 
Among  those  provisions  was  this: 

'*It  is  further  covenanted  and  agreed  that 
the  United  SUtes  shall  have  the  right  of 
suspending  the  whole  or  any  part  of  the 
work  herein  contracted  to  be  done,  when- 
ever, in  the  opinion  of  the  supervising  archi- 
tect, it  may  be  necessary  for  the  purposes 
or  advantage  of  the  work,  and  upon  such 
occasion  or  occasions  the  contractor  shall, 
without  expense  to  the  United  States,  propr 
erly  cover  over,  secure,  and  protect  such  of 
the  work  as  may  be  liable  to  sustain  injury 
from  the  weather,  or  otherwise;  and  for 
all  such  suspensions  the  contractor  shall  be 
allowed  one  day  additional  to  the  time  here- 
in stated  for  each  and  every  day  of  such 
delay  so  caused  in  the  completion  of  the 
work,  the  same  to  be  ascertained  by  the 
[276]  supervising  architect;  and  a  similar 
allowance  of  extra  time  will  be  made  for 
such  other  delays  as  the  supervising  archi* 
tect  may  find  to  have  been  caused  by  the 
United  States,  provided  that  a  written  claim 
therefor  is  presented  by  the  contractor 
within  ten  days  of  the  occurrence  of  such 
delays;  provided,  further,  that  no  claim 
shall  be  made  or  allowed  to  the  contractor 
for  any  damages  which  may  arise  out  of 
any  delay  caused  by  the  United  States." 


.    „  J        ^    xt         .^v  XV  •         J  •      -^d  among  the  "Generar  Conditions"  pre- 

ahall  proceed  no  further  with  the  work,  and    ^^.^  ^^^  si^ifications  was  this: 

"The  Department,  acting  for  the  United 


that  we  shall  hold  you  liable  for  damages 
we  have  sustained  by  reason  of  your  breach 
•of  contract,  including  your  failure  to  provide 
labor  and  materials  not  included  in  the  con- 
tract with  [275]  us  in  such  manner  as  not 
to  delay  the  material  progress  of  our  work 
and  your  failure  to  make  payments  in  ac- 
cordance with  the  terms  of  the  contract,  and 
all  other  breaches  of  contract  on  your  part." 
Defendant  acknowledged  receipt  and  re* 
plied  May  31,  1912:  ''Said  letter  is  a  breach 
•of  contract  on  your  part,  and  we  shall  im- 
mediately proceed  to  have  the  work  done  by 
other  parties,  and  shall  charge  you  with  the 
«•  Jj.  ed.  41 


States,  reserves  the  right  to  suspend  any 
portion  of  the  work  embraced  in  the  con- 
tract whenever,  in  its  opinion,  it  would  be 
inexpedient  to  carry  on  said  work." 

Other  contentions  were  made  which  are 
not  now  material. 

The  jury  rendered  a  verdict  somewhat 
special  in  form,  finding  for  the  plaintiff  and 
assessing  its  damages  at  $6,609.25,  ''includ- 
ing the  value  of  tools  inventoried  at  $3,000." 
The  judge  had  instructed  them  that  for  cer- 
tain material  and  appliances  used  by  plain- 
tiff in  carrying  out  its  contract,  and  which 


27(^270 


813PREMF  COUKT  OF  THE  UNITED  STATES. 


Oct.  TsBiff^ 


were  placed  in  the  custody  and  charge  of 
defendant,  "credit  must  be  given,  in  what- 
ever decision  you  anive  at,  to  the  plaintiff 
company,  and  in  the  uncontradicted  sum  of 
$3,000."  Just  how  the  residue  of  the  ver- 
dict was  made  up  we  have  no  means  of  de- 
termining, nor  is  it  now  important. 

The  chief  oontrov^ersy  here  is  over  the 
admission  in  evidence  of  the  general  con- 
tract, and  the  .effect  given  to  it  in  the  rul- 
ings of  the  trial  judge,  which  were  in  sub- 
stance that  the  provisions  of  that  contract, 
including  those  above  quoted,  were  to  be 
read  into  *the  subcontract,  and  that  for  any 
delays  which  resulted  from  the  action  of 
the  representatives  of  the  government  in 
changing  the  foundations  or  plans  of  the 
building,  in  suspending  or  stopping  the 
work,  or  otherwise,  defendant  was  not 
[277]  responsible  to  plaintiff.  To  these 
rulings  exceptions  were  duly  taken. 

From  what  was  said  by  the  trial  judge 
it  would  seem  that  he  labored  under  the  im- 
pression that  the  supervising  architect  of 
the  treasury  was  a  party  to  the  subcon- 
tract. This  is  not  the  case;  he  did  not  sign 
the  agreement,  and  his  name  was  inserted 
solely  in  the  capacity  of  architect  or  referee. 
And  although  the  subcontract  very  plainly 
imports  that  it  covers  only  a  part  of  the 
work  of  constructing  the  building,  and  that 
the  Carlin  Company  was  the  general  con- 
tractor, it  contains  no  clause  incorporating 
into  itself  the  provisions  of  the  principal 
contract,  or  even  in  terms  referring  to  that 
instrument.  The  subcontractor's  work  was 
agreed  to  be  done  according  to  drawings 
and  specifications,  "copies  of  which  have 
been  delivered  to  the  subcontractor."  These 
copies  were  not  produced,  nor  was  their  non- 
production  accounted  for.  The  parties  seem 
to  have  assumed  that  the  drawings  and 
specifications  of  which  copies  were  to  have 
been  delivered  wth  the  subcontract  were 
identical  with  those  that  formed  a  part  of 
the  general  contract;  and  we  adopt  that 
assumption. 

The  reference  in  the  subcontract  to  the 
drawings  and  ^ecifications*  was  evidently 
for  the  mere  purpose  of  indicating  what 
work  was  to  be  done,  and  in  what  manner 
done,  by  the  subcontractor.  Notwithstand- 
ing occasional  expressions  of  a  different 
view  (see  Shaw  v.  First  Baptist  CSiurch,  44 
Minn.  22,  24',  46  N.  W.  146;  Avery  v.  Ionia 
County,  71  Mich.  538,  546,  547,  39  N.  W. 
742;  Stein  v.  McCarthy,  120  Wis.  288,  296, 
97  N.  W.  912),  in  our  opinion  the  true  rule, 
based  upon  sound  reason  and  supported  by 
the  greater  weight  of  authority,  is  that  in 
the  case  of  subcontracts,  as  in  other  cases 
of  express  agreements  in  writing,  a  refer- 
race  by  the  contracting  parties  to  an  ex- 
traneous writing  for  a  partieular  purpose 
«4S 


makes  it  a  part  of  their  agreement  only 
for  the  purpose  specified.  Woodruff  y. 
Hougli,  91  U.  S.  596,  602,  28  L.  ed.  332, 
335;  [278]  Neuval  v.  Cowell,  36  Cal.  648, 
650;  Mannix  v.  Tryon,  152  CaL  31,  39,  91 
Pac.  983;  Moreing  v.  Weber,  3  Cal.  App.  14, 
20,  84  Pae.  220;  l^ort  v.  Van  Dyke,  50 
Minn.  286,  289,  52  N.  W.  643 ;  Noyes  v.  But- 
ler Bros.  98  Minn.  448,  450,  108  N.  W.  839; 
Modem  Steel  Structural  Co.  v.  Bnglisb 
Constr.  Co.  129  Wis.  31,  40,  41,  108  N.  W. 
70. 

In  the  present  case,  not  only  was  th* 
reference  to  the  drawings  and  specifications 
for  a  limited  purpose,  but  the  subcontract, 
by  the  express  terms  of  its  11th  paragraph, 
placed  upon  the  general  contractor  (defend* 
ant)  the  obligation  to  "provide  all  labor 
and  materials  not  included  in  this  contract 
in  such  manner  as  not  to  delay  the  material 
progress  of  the  work."  Applying  this  to 
the. facts  of  the  case,  defendant  agreed  to 
furnish  the  foundation  in  such  manner  that 
plaintiff  might  build  upon  it  without  delay. 
This  is  inconsistent  with  any  implication 
that  the  parties  intended  that  delays  at- 
tributable to  the  action  of  the  owner  should 
leave  plaintiff  remediless. 

We  therefore  hold  that  the  general  con- 
tract was  notiidmissible  in  evidence  against 
plaintiff,  unf^s  for  the  purpose  of  showing 
(if,  indeed,  it  did  show)  what  drawings  and 
specifications  were  referred  to  in  the  sub- 
contract; and  that  the  rulings  of  the  trial 
judge  holding  plaintiff  bound  by  the  pro- 
visions of  the  general  contract,  so  as  to  be 
obliged  to  submit  to  delays  resulting  from 
the  action  of  the  government,  were  errone* 
ous. 

Another  point  that  may  conveniently  be 
dealt  with  here  is  raised  by  an  exception 
taken  to  the  instruction  that  "even  if  there 
was  'delay  in  furnishing  granite,  there  could 
have  been  no  liability  under  the  subcontract 
for  such  delay,  in  money,  but  such  a  con- 
dition was  to  be  remedied  by  an  extension 
of  time  for  completion,  as  therein  provided.'' 
This  was  clearly  erroneous.  Paragraph  11 
binds  defendant  to  reimburse  plaintiff  for 
any  loss  caused  by  delay  resulting  from  de- 
fendant's failure  to  provide  materials  not 
included  in  the  subcontract.  The  1279] 
granite  was  in  this  category.  The  trial 
court  misapplied  f  7.  The  extension  of  time 
therein  provided  for  was  intended  as  a  dis- 
pensation, under  given  circumstances,  of  the 
liability  to  liquidated  damages  imposed 
upon  the  subcontractor  by  f  6  for  failure  to 
complete  his  work  within  the  time  therein 
limited.  The  purpose  of  f  7  is  to  relieve 
the  subcontractor.  It  cannot  properly  be 
construed  to  deprive  him  of  his  right  under 
f  11  to  reimbursement  for  losses  attribu* 
table  to  delays  assumed  by  the  general  con- 

S40  U.  S. 


1918. 


GUBRINI  STONE  00.  y.  P.  J.  CARUN  00N8TIL  00. 


279-281 


tntetor.  NeltoB  y.  Pickwick  AssocUted  Oo. 
30  IlL  App.  333. 

What  lias  been  said  indicates  the  disposi* 
tiom  tliat  must  be  made  of  another  excep- 
tion  taken  by  plaintiff,  which  was  to  the  in- 
struction that  tinder  j[  7  plaintiff  was  not 
entitled  to  recover  damages  or  money  com- 
pensation from  defendant  even  though  It 
should  appear  that  plaintiff  "was  obstructed 
or  delayed  in  the  prosecution  or  completion 
of  the  work  by  the  neglect,  delay,  or  de- 
fault of  the  government  of  the  United 
States,  the  supervising  architect,  or  his  rep- 
resentatives, or  by  defendant,  or  by  altera- 
tions required  in  the  work,  since  by  the 
provisions  of  that  paragraph  the  only  rem- 
edy of  plaintiff  in  such  cases  is  the  time 
allowance  therein  provided  for;  unless,  how- 
ever, you  should  believe  frpm  the  evidence 
that  the  defendant  failed  to  provide  labor 
and  materials  not  included  in  the  subcon- 
tract, in  such  manner  as  to  delay  the  ma- 
terial progress  of  the  work." 

As  we  have  shown,  the  failure  to  furnish 
a  foundation  upon  which  plaintiff's  work 
could  be  superimposed  was  a  failure  to 
provide  "labor  and  materials  not  included 
in  this  contract,"  within  tl^e  meaning  of 
f  11.  To  furnish  the  foundation  defendant 
assumed  an  obligation  not  conditioned  by 
the  question  whether  it  was  at  fault,  or 
whether  the  delay  was  involuntary  on  its 
pait  because  attributable  to  a  stoppage  of 
work  by  the  owner,  in  the  exercise  of  a 
right  conferred  upon  it  by  the  principal  con- 
tract. [280]  Defendant,  of  course,  had  no* 
tice  of  the  government's  right  to  suspend 
the  work,  and  could  easily  have  safeguarded 
itself  against  responsibility  to  the  subcon- 
tractor for  delays  attributable  to  the  exer- 
cise of  that  right  by  an  appropriate  modifi- 
cation of  f  11  of  the  subcontract,  for  which 
presumably  an  allowance  would  have  been 
made  to  the  subcontractor  in  the  form  of 
an  increased  price  for  its  work  or  otherwise. 
This  not  having  been  done,  f  11  must  be 
enforced  as  it  is  written.  It  matters  not 
whether  plaintiff  or  its  predecessor  had  no- 
tice of  the  provision  of  the  general  contract 
respecting  suspension  of  the  work,  since 
that  provision  was  not  incorporated  into  the 
subcontract.  It  must  be  presumed  that  de- 
lays attributable  to  action  by  the  govern- 
ment were  among  those  intended  to  be  safe- 
guarded by  f  11. 

There  was  testimony  as  to  the  profits 
that  plaintiff  probably  would  have  gained 
if  the  contract  had  been  proceeded  with  in 
the  ordinary  manner.  But  this  question 
was  excluded  from  the  consideration  of  the 
jury  upon  the  ground  that  the  profits  were 
contingent  and  speculative.  In  this  there 
wsa  error.  The  testimony  was  from  an  ex- 
perienced witness,  and  included  an  estimate 


of  the  total  cost  to  plaintiff  of  the  doin|p 
of  the  work  called  for  in  the  subcontract. 
This  amounted  to  $53,012.  The  contract 
price  was  $64,750.  The  witness  testified 
that  a  profit  of  $9,700  would  have  been 
made.  Whether  he  intended  to'  say  $11,700 
was  for  the  jury  to  determine.  No  more 
definite  or  certain  method  of  estimating  the 
profits  could  well  be  adopted  than  to  deduct 
from  the  contract  price  the  probable  cost 
of  furnishing  the  materials  and  doing  the 
work.  Philadelphia,  W.  &  B.  R.  Co.  y. 
Howard,  13  How.  307,  344,  14  L.  ed.  157,. 
173;  Hinckley  v.  Pittsburgh  Bessemer  Steel 
Ck>.  121  U.  S.  2C4,  275,  30  L.  ed.  067,  970,. 
7  Sup.  Ct  Rep.  875;  Anvil  Min.  Co.  v. 
Humble,  153  U.  S.  540,  540,  38  L.  ed.  814, 
817,  14  Sup.  Ct.  Rep.  876. 

Error  is  assigned  to  the  refusal  of  the 
trial  judge  to  give  the  following  instruc- 
tion: 

[281]  "If  you  find  that  the  defendant 
failed  to  make  payments  as  called  for  by  the 
contract,  on  account  of  work  done  by  the 
plaintiff  in  accordance  with  the  terms  of  the 
contract,  such  failure  constitutes  a  breach 
of  the  contract  on  the  part  of  the  defend- 
ant, and  justified  the  plaintiff  in  stopping 
work  under  the  contract,  and  entitles  it  te 
recovery  from  the  defendant  of  such  dam- 
ages as  may  be  proper  on  the  evidence  and 
under  the  instructions  which  the  court  will 
give  you  in  that  regard." 

The  request  was  evidently  based  upon 
the  doctrine  illustrated  in  South  Fork  Canal 
Co.  V.  Gordon,  6  Wall.  561,  18  L.  ed.  804; 
Phillips  &  C.  Constr.  Co.  v.  Seymour,  91  U. 
S.  646,  649,  23  L.  ed.  341,  342;  Norrington 
V.  Wright,  115  U.  S.  188,  205,  20  L.  ed. 
366,  360,  6  Sup.  Ct  Rep.  12.  There  is  m 
diflOiculty,  however,  in  applying  that  doc- 
trine to  this  case,  due  to  the  fact  that  the 
contract  does  not  either  specify  the  amount 
of  the  advance  payments  or  indicate  how 
they  are  to  be  ascertained.  The  language 
of  f  12  is  that  the  contract  price  is  to  be 
paid  "in  monthly  payments  on  account  not 
to  exceed  In  amount  85  per  cent  of  the  cost 
of  the  work  actually  erected  in  the  build- 
ing, provided/'  etc  Tliere  is  no  clause,  such 
as  is  frequently  found  in  contracts  of  this 
character,  that  the  amounts  payable  from 
time  to  time  shall  be  ascertained  and  certi- 
fied by  the  architect  The  language  cannot 
be  construed  to  oblige  the  general  contractor 
to  pay  precisely  85  per  cent  of  the  cost  of 
the  work  done;  the  use  of  the  words  "not 
to  exceed"  forbids  this.  The  paragraph 
must  receive  a  reasonable  construction,  and 
undoubtedly  required  the  general  contractor 
to  make  substantial  payments  monthly, 
fairly  approximating,  but  not  exceeding,  85 
]  per  cent  of  the  cost  of  the  work.  But  the 
proviso  requiring  the  subcontractor  to  fur- 

«4» 


mv^ 


281-284 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  Tmmm, 


waA  to  the  general  contractor  a  written 
Tequisition  did  not  entitle  the  subcontractor 
to  be  the  sole  judge  of  the  amount  it  was 
entitled  to  receive.  On  the  contrary,  the 
provision  that  the  requisition  should  be  sub- 
mitted "not  less  than  twelve  days  before 
payment  is  required"  evidently  contemplat- 
ed [282]  that  the  general  contractor  was  to 
be  afforded  an  opportunity  to  verify  the  pro- 
priety of  the  demand  made.  But  the  evi- 
dence fails  to  show  that  the  requisitions 
were  based  upon  the  cost  of  the  work,  or 
that  any  clear  statement  of  such  cost  was 
submitted  with  them.  As  already  pointed 
out,  the  parties  endeavored  to  arrive  at  an 
agreement  about  unit  prices,  in  order  that 
these  might  be  employed  in  making  up  the 
requisitions.  Whether  they  did  so  agree  the 
eridence  left  in  dispute.  If  the  agreement 
was  made,  it  was  at  the  interview  of  Febru- 
ary 2, 1912.  A  letter  is  in  evidence,  written 
by  plaintiff  to  defendant  under  date  of  Feb- 
ruary 6,  saying:  "In  accordance  with  your 
instruction  to  Mr.  Converse  we  have  made 
our  January  requisition  in  the  units  and 
unit  prices  used  by  the  government  engineer. 
.  .  .  We  inclose  formal  requisition  for 
$9,012.50  due  us  under  contract."  But  the 
requisition  itself  was  not  introduced.  The 
next  and  last  requisition  appears  to  have 
been  made  under  date  March  9,  1912,  and 
this  stated:  "Amount  of  work  completed  to 
date,  $18,237."  But  such  details  as  were 
furnished  do  not  seem  to  bear  out  this  esti- 
mate. In  the  state  of  the  record,  we  can- 
not say  that  there  was  Irror  in  the  refusal 
of  the  requested  instruction. 

Error  is  assigned  because  of  the  refusal 
to  instruct  the  jury  as  follows: 

"In  estimating  the  recovery  to  which  the 
plaintiff  is  entitled,  if  you  find  he  is  en- 
titled to  recover,  you  should  consider  the 
reasonable  expenditures  incurred,  the  un- 
avoidable losses  incident  to  stoppage,  the 
amount  of  work  actually  performed,  the 
amount  plaintiff  was  actually  entitled  to 
by  reason  of  such  work  at  the  contract 
price,  and  the  profits  which  plaintiff  could 
have  made  if  allowed  to  complete  the  work 
under  the  contract." 

Had  the  requested  application  of  these 
elements  of  damage  been  confined  to  the 
case  of  plaintiff  being  found  entitled  to  re- 
coTer  upon  the  theory  that  the  contract 
was  [283]  rightfully  terminated  by  the  no- 
tice of  May  22,  1912,  we  assume  it  ought  to 
have  been  panted.  United  States  v.  Behan, 
110  U.  S.  338,  28  L.  ed.  168,  4  Sup.  Ct.  Rep. 
81;  Anvil  Min.  Co.  v.  Humble,  153  U.  S. 
540,  551,  552,  38  L.  ed.  814,  817,  818,  14 
Sup.  Ct.  Rep.  876;  Roehm  v.  Horst,  178 
U.  S.  1,  21,  44  L.  ed.  953,  961,  20  Sup. 
Ct.  Rep.  780.  But,  as  already  pointed  out, 
other  grounds  of  action  were  declared  upon: 
•44 


(a)  defendant's  failure  to  provide  granite 
blocks  prior  to  October  16,  1911;  (b)  iU 
failure  between  that  date  and  March  19, 
1012,  to  provide  necessary  materials  and 
carry  on  its  part  of  the  construction  work; 
and  (c)  a  quantum  meruit  for  labor  per- 
formed and  materials  furnished.  In  the 
event  of  plaintiff's  recovery  being  based 
upon  these  grounds  only,  some  of  the  ele- 
ments indicated  in  the  request  would  not 
be  properly  applicable.  The  form  of  the  re- 
quest was  such  that  compliance  with  it 
might  have  misled  the  jury,  and  hence  there 
was  not  error  in  refusing  it. 

Exceptions  were  taken  to  the  refusal  of 
certain  oj^ber  instructions  requested  by 
plaintiff  with  the  object  of  basing  a  recov- 
ery of  damages,  including  profits,  upon  the 
ground  of  plaintiff  having  been  prevented 
by  defendant's  acts  from  performing  its  con- 
tract within  the  time  specified  or  a  reason- 
able extension  thereof,  or  on  the  ground 
that  defendant's  refusal  to  make  payments 
and  other  breaches  of  contract  were  so  un- 
reasonable and  inexcusable  as  to  indicate 
an  inability  or  unwillingness  on  its  part  to 
carry  out  the  contract,  or  to  amount  to  a 
refusal  to  perform  it  in  the  future,  such 
as  to  justify  plaintiff  in  stopping  work. 
But  these  exceptions  have  not  been  fully 
argued,  and  the  requests  are  perhaps  want- 
ing in  accuracy;  hence,  we  pass  them  with- 
out consideration. 

Judgment  reversed,  and  the  cause  remand- 
ed for  further  proceedings  in  accordance 
with  this  opinion. 

Mr.  Justice  McReynolds  took  no  part  in 
the  consideration  or  decision  of  this  cane 


[284]    UNION    NAVAL    STORES    COM- 
PANY, Plff.  in  Err., 
v. 

UNITED  STATES. 
(See  S.  C.  Reporter's  ed.  284-293.) 

Evidence  —  variance. 

1.  Evidence  that  it  was  the  crude,  and 
not  the  manufactured,  product  that  was 
taken,  supports  the  claim  of  the  complaint 
in  an  action  brought  bv  the  United  states 
for  conversion  that  spirits  of  turpentine  and 
rosin  were  taken  from  certain  government 
lands. 

[For  other  cases,  see  Evidence,  XIII.  b,  in  Di- 
gest Sup.  Ct.  1908.] 

NoTB. — On  the  right  to  cut  timber  on  pub- 
lic land — see  note  to  King-Ryder  Lumber 
Co.  V.  Scott,  70  L.RJL  873. 

On  title  by  accession  to  crops,  fruit,  and 
timber  wrongful Iv  severed — see  note  to  Car- 
penter V.  Lingenfelter,  32  LJLA.  422. 

On  confusion  of  goods  —see  note  to  Petera 
▼.  Bain,  33  L.  ed.  U.  S.  090. 

240  U.  8. 


10  J  (^. 


UNION  NAVAL  STORES  CO.  v.  UNITED  STATES. 


Pleadlnir  —  conTerslon  —  tnrpentine 
taken  from  goyermneiit  land  —  de- 
scription of  lands. 

2.  Error  in  the  particular  description 
of  the  lands  in  the  complaint  in  an  action 
hj  the  United  States  (or  the  conversion  of 
q>irits  of  turpentine  and  rosin,  alleged  to 
have  been  taken  from  government  lands,  is 
of  no  serious  consequence  where  they  wer<* 
otherwise  described  as  a  certain  homestead, 
and  there  was  uncontradicted  evidence  that 
the  lands  referred  to  and  no  others  were 
known  by  this  description. 

Cl«*or  othor  cases,  see  Pleading,  II.,  in  Digest 
8ap.  Ct  1908.] 

Trial  —  taklnir  case  from  Jnry  —  nomi* 

nal  damages  —  conversion. 

3.  The  failure  of  the  evidence  in  an 
action  by  the  United  States  for  the  con- 
version  of  spirits  of  turpentine  and  rosin 
alleged  to  have  been  taken  from  certain 
government  lands  to  show  precisely  what 
quantities  of  such  products  of  crude  tur- 
pentine  taken  from  the  public  lands  were 
received  by  the  defendant  was  not  ground 
for  a  peremptory  instruction  to  find  in  the 
latter's  favor  or  to  limit  the  recovery  to 
nominal  damages,  where  there  was  evidence 
from  which  tlie  jury  could  form  a  reason- 
ably certain  estimate  of  the  amount  of 
crude  turpentine  taken  from  such  lands  dur- 
ing the  years  in  question,  and  the  amount 
of  spirits  and  rosin  that  this  probably 
yielded. 

[For  other  cases,  see  Trial,  VI.  b;  Damages. 
VI.  n,  in  Digest  Sup.  Ct.  1908.] 

Public  lands  -*  taking  turpentine  from 

—  iicnorance  of  illegality  of  act. 

4.  The  boxing  and  chipping  of  pine 
trees  on  public  lands  covered  by  an  unper* 
footed  homestead  entry  by  any  person  who 
knew  the  character  of  the  land,  and  the  ex* 
tracting  of  crude  turpentine  therefrom  for 
sale  and  profit,  constituted  a  wilful  tres- 
pass, although  he  may  have  acted  without 
knowledge  of  the  illegality  of  the  act. 
[For    other    cases,    see    Public    Lands,    I.    b; 

Trespass,  in  Digest  Sap.  Ct.  1908.] 

Public  lands  —  taking  turpentine  flrom 

—  following  converted  piroperty. 

6.  The  value  of  the  distilled  product  of 

crude    turpentine    taken    by    tlie    distiller 

from   land  which  he  knew  was  covered  by 

an    unperfected    homestead    entry   may   be 

recovered  by  the  United  States  from  any 

person  into  whose  possession  such  product 

may  pass. 

[For  otbcr  cases,  see  Public  Triads,  I.  b; 
Trover.  In   Digest   Sup.  Ct.  1908.] 

Public  lands  —  taking  turpentine  from 
-*  continuing  trespass. 

6.  The  distillation  by  the  trespasser  of 
the  crude  turpentine  taken  by  him  from 
(government  lands  is  a  continuing  act  of 
trespass  tliat  did  not  devest  the  United 
States  of  its  property,  but  left  it  still  en- 
titled to  the  manufactured  product. 

[For  other  cnsps,  see  i*ublic  IadcIs,  I.  b: 
Trover,  in  Digest  8up.  Ct.  1008.  J 

Accession  of  goods  —  knowledge  of 
ownership. 

7.  One  who  knowingly  takes  the  prop- 
erty of  another  cannot  \^  changing  its  form 
ۥ  li.  ^d. 


or  increasing  its  value,  or  by  conuningliaf 

it  with  other  property  of  his  own,  aeqalra 

title  by  accession. 

[For  other  cases,  see  Accession  and  Confusloa* 
Id  Digest:  Sup.  Ct.  1908.] 

Public  lands  —  taking  tnrpentine  from 
—  accession  —  conversion. 

8.  Ihe  mortgagee  in  a  mortgage  givsii 
to  secure  advances  and  the  faithful  per- 
formance by  the  mortgagor  of  his  agreement 
to  extract  crude  turpentine  from  certain 
lands  and  to  manufacture  the  same  into 
spirits  of  turpentine  and  rosin,  and  to  ship 
the  manufactured  products  to  the  mort- 
gagee, to  be  sold  for  the  mortgagor'a  ac- 
count, cannot,  under  the  doctrine  of  aooes- 
sion,  escape  the  obligation  to  answer  to  the 
United  States  for  the  value  of  tlie  manu- 
factured product  of  the  government  prop- 
erty which  came  into  its  possession  through 
the  practice  of  the  mortgagor  in  his  dis- 
tilling operations  to  mix  with  crude  gum  to 
which  he  had  an  unquestioned  title  a  small 
but  substantial  quantity  of  gum  knowinglj 
taken  by  him  from  government  land. 

[For  other  cases,  see  Public  Lands,  I.  b;  Ac- 
cession and  Confusion;  Trover,  in  Digest 
Sup.  Ct.  1908.] 

Mortgage  —  after*acquired  property  — • 

tnrpentine  taken  from  public  lands. 

9.  An  after-acquired-property  clause  in 
a  mortgage  given  to  secure  advances  and 
the  faithful  performance  by  the  mortgagor 
of  his  agreement  to  extract  crude  turpen- 
tine from  certain  lands  and  to  nuinidac- 
ture  the  same  into  spirits  of  turpentine  and 
rosin,  and  ship  the  manufactured  products 
to  the  mortgagee,  to  l>e  sold  for  the  mort- 
gagor's account,  will  not  confer  title  upon 
the  mortgagee  to  property  of  the  United 
States  which  came  into  its  possession 
through  the  practice  of  the  mortgagor  in 
his  distilling  operations  to  mix  with  crude 
gum  to  whidi  he  had  an  unquestioned  title 
a  small  but  substantial  ouantity  of  gnm 
knowingly  taken  by  him  from  government 
lands,  since  property  in  such  product  could 
not  be  acquired  by  the  mortgagor  without 
the  consent  of  the  United  States. 

[For  other  cases,  see  Mortgage,  I.  d,  2,  in  Di- 
gest Sap.  Ct.  1908.] 

Trover  —  neoesaity  of  demand  for  pea* 

session. 
10.  A  demand  by  the  United  States  for 
the  spirits  of  turpentine  and  rosin  manu- 
factured from  crude  gum  unlawfully  taken 
from  public  lands  is  futile  and  therefore 
unnecessary  in  order  to  support  an  action 
of  conversion  against  a  corporation  whieh 
has  received  the  earao  from  the  trespasser 
mixed  with  a  much  greater  quantity  to 
which  he  had  unquestioned  title,  where  the 
corporation  sold  tho  entire  product  soon 
after  its  receipt,  and  accounted  to  sueii 
trespasser  for  the  proceeds. 
[For   otber   cases,   see  Trover:   Public   Lands. 

I.  b,  in  Digest  Sop.  Ct.  1908.] 

[No.  80.] 

Submitted    November    11,    1916.     Dcdded 
February  21,  1916. 

%4B 


SUPREME  OOURT  OF  TBE  UNITED  STATES. 


Got.  Tknc, 


IK  ERROR  to  the  Unit^l  SUtet  Circuit 
Court  of  Appeals  for  tlie  Fifth  Circuit- 
to  review  a  judgment  which  modified,  and 
affirmed  as  modified,  a  judgment  of  the 
District  Court  for  the  Southern  District  of 
Alabama  in  favor  of  the  United  States  in 
«n  action  for  the  conversion  of  turpentine 
and  rosin  from  public  lands.    Affirmed. 

See  same  case  below,  123  C.  C.  A.  1,  202 
Fed.  401. 

The  facts  are  stated  in  the  opinion. 

Mr.  Richard  William  Stouts  submitted 
the  cause  for  plaintiff  in  error : 

When  personalty  is  attached  to  realty,  as 
bricks,  lumber,  or  machinery,  when  built 
into  a  house,  these  things  cease  to  be  per- 
acmalty,  and  become  merged  into  the  realty. 
In  that  case  the  identity  is  considered  lost, 
and  the  right  to  follow  the  same  ceases 
and  the  doctrine  of  accession  applies.  This 
doctrine  goes  even  to  the  extent  of  holding 
that  the  rights  of  the  owner  and  the  rights 
of  a  chattel  mortgagee  thereof  may  be  thus 
annihilated  through  the  doctrine  of  acces- 
sion, and  merged  into  the  realty. 

Peirce  ▼.  Qoddard,  22  Pick.  559,  33  Am. 
Dec.  764;  Fryatt  v.  Sullivan  Co.  6  Hill, 
117;  Ricketts  v.  Dorrell,  55  Ind.  473;  Mil- 
,lar  V.  Humphries,  2  A.  K.  Marsh.  447. 

Kor  is  this  principle  unconstitutional.  It 
existed  before  our  Constitutions  were  writ- 
ten, and  was  applied  both  by  the  ancient 
civil  and  common  law.  It  is  deemed  to  be 
recognized  by  the  Contsitution  as  an  exist- 
ing principle,  and  the  Constitution  is  to  be 
construed  in  the  light  of  its  existence. 

Cecil  V.  Clark,  44  W.  Va.  650,  30  S.  £. 
216. 

Personal  property  may  become  merged 
into  other  personal  property  under  the  doc- 
trine of  accession,  and  thereby  cease  to 
exist  in  its  prior  character,  in  the  eye  of  the 
law,  as  completely  as  if  it  were  attached  to 
realty. 

Abom  V.  Mason,  14  Blatchf.  405,  Fed. 
Gas.  No.  10;  Woodruff  ft  B.  Iron  Works  v. 
Adams,  37  Conn.  239;  Merritt  v.  Johnson, 
7  Johns.  473,  6  Am.  Dec.  280;  Davis  v. 
Easley,  13  HI.  198;  Dunn  v.  Oneal,  1  Sneed, 
106,  60  Am.  Dec.  140;  Pulcifer  v.  Page,  32 
Me.  404,  54  Am.  Dec.  582;  Arnott  v.  Eoinsas 
P.  R.  Co.  19  Kan.  109 ;  Atchison,  T.  k  S.  F. 
R.  Co.  V.  Schriver,  72  Kan.  5C0,  4  L.R.A. 
(N.S.)  1059,  84  Pao.  119;  Wetherbee  v. 
Qreen,  22  Mich.  311,  7  Am.  Rep.  653; 
Brown  v.  Sax,  7  Cow.  95;  Worth  v.  North- 
am,  26  N.  C.  (4  Ired.  L.)  102;  Carpenter  v. 
Lingenfelter,  42  Neb.  728,  32  LILA.  430,  60 
K.  W.  1022;  Ex  parte  Ames,  1  Low.  Dec. 
561,  Fed.  Cas.  No.  323. 

There  is  no  tenancy  in  common  if  there  is 
a  difference  in  quality  and  grade  of  goods 
mixed. 
€4« 


Lupton  V.  White,  15  Ves.  Jr.  442.  10  Re- 
vised Rep.  94,  2  Mor.  Min.  Rep.  430;  Jen- 
kins V.  Steanka,  19  Wis.  126,  88  Am.  Dec 
675;  Reid  v.  King,  89  Ky.  388,  12  S.  W. 
772. 

There  can  be  no  recovery  by  one  supposed 
tenant  in  common  against  the  other  in  tro- 
ver, conversion,  or  replevin,  unless  the  goods 
contributed  by  each  to  a  common  mass  are 
identical  in  quality,  kind,  and  value,  so 
that  a  portion  by  measurement  would  be 
practicable  and  just. 

Piazzek  v.  White,  23  Kan.  621,  33  Am. 
Rep.  211;  Kimberly  v.  Patchin,  19  N.  Y. 
330,  75  Am.  Dec.  334;  Grimes  v.  Cannell,  23 
Neb.  187,  36  N.  W.  479;  Young  v.  Miles, 
20  Wis.  623;  Weeks  v.  Hackett,  104  Me. 
271,  19  L.RJk.(N.S.)  1201,  129  Am.  St. 
Rep.  390,  71  Ail.  858,  15  Ann.  Cas.  1158; 
Kaufmann  v.  Schilling,  58  Mo.  219. 

In  case  of  the  bestowal  of  labor  by  even 
a  wrongdoer  upon  the  goods  of  another,  so 
as  to  impart  extraordinary  value  to  the 
goods,  the  goods  would  belong  to  the  party 
who  put  the  labor  upon  them,  and  not  to 
the  former  owner. 

Wetherbee  v.  Green,  22  Midi.  311,  7  Am. 
Rep.  653. 

Where  goods  have  been  changed  in  char- 
acter by  being  put  through  a  process  so  that 
the  original  identity  is  lost,  the  original 
owner  loses  his  property  by  reason  of  the 
change. 

Ibid.;  Lampton  v.  Preston,  1  J.  J.  Marsh. 
454,  19  Am.  Dec.  105. 

llie  doctrine  of  accession  to  property  is 
not  confined  to  cases  of  innocent  taking. 

United  States  v.  Detroit  Timber  A  Lum- 
ber Co.  100  U.  S.  331,  332,  50  L.  ed.  503, 
504,  26  Sup.  Ct.  Rep.  282. 

Every  man  is  presumed  to  know  the  law 
to  such  an  extent  that  he  may  be  held 
responsible  for,  and  required  to  compensate 
another  for,  an  injury  done  such  other,  and 
as  against  this  measure  of  responsibility  no 
plea  of  ignorance  of  the  law  will  avail.  But 
this  maxim  has  never  been  applied  to  pun- 
ish him  beyond  that  measure  for  not  know- 
ing the  law.  Nor  should  it  be  applied  to 
punish  third  parties  innocent  of  conduct 
meriting  punishment. 

Morgcn  v.  United  States,  94  C.  C.  A.  518, 
169  Fed.  249;  Gentry  v.  United  Stotes,  41 
C.  C.  A.  185,  101  Fed.  51,  55  C.  C.  A.  658, 
119  Fed.  70;  United  SUtes  v.  Van  Winkle, 
51  C.  C.  A.  533,  113  Fed.  903,  22  Mor.  Min. 
Rep.  56;  United  States  v.  Homestake  Min. 
Co.  54  C.  C.  A.  303,  117  Fed.  481,  22  Mor. 
Min.  Rep.  365. 

The  doctrine  which  entitles  the  govern- 
ment to  recover  the  increased  value  in 
manufactured  rosin  and  turpentine  over  the 
crude  is  based  entirely  upon  the  idea  of 
punishing  a  wilful  wrongdoer,  and  this  doc- 

%40  V.  B. 


1916. 


UNION  NAVAL  STORES  CO.  ▼.  UNITED  STATES. 


trine  can  luiTe  no  reference  to  the  man  who 
«cta  upon  an  honest  belief  as  to  his  legal 
rights,  even  though  he  may  be  mistaken  as 
to  the  law. 

United  States  y.  Homestake  Min.  Co. 
•npra. 

The  forfeiting  doctrine  of  confusion  of 
goods  does  not  apply  against  mortgagees 
who  are  innocent  third  parties. 

Smith  ▼.  Au  Ores  Twp.  9  L.RJL(N.S.) 
«76,  80  C.  C.  A.  145,  150  Fed.  257;  Mer- 
chants' Nat.  Bank  ▼.  McLaughlin,  2  Fed. 
128;  Ex  parte  Ames,  1  Low.  Dec  561,  Fed. 
Cas.  No.  323;  Weaver  v.  Neal,  61  W.  Va. 
57,  123  Am.  St.  Rep.  972,  55  S.  £.  909; 
Putnam  v.  Cushing,  10  Gray,  335;  Willard 
T.  Rice,  11  Met.  493,  45  Am.  Dec.  226;  Park- 
er V.  Williams,  77  Me.  138,  1  Atl.  138; 
Wells  V.  Baits,  112  N.  C.  283,  34  Am.  St. 
Rep.  506,  17  S.  E.  417 ;  Tippett  v.  Barham, 
37  L.R.A.(N.S.)  119,  103  C.  C.  A.  430,  180 
Fed.  81;  Union  Trust  Co.  v.  Southern  Saw 
MiUs  k  Lumber  Co.  92  C.  C.  A.  101,  166 
Fed.  199;  Detroit  Steel  Cooperage  Co.  ▼. 
Sistersville  Brewing  Co.  115  C.  C.  A.  349, 
195  Fed.  450. 

Before  the  passage  of  the  criminal  statute 
of  June  4,  1906,  it  was  not  prima  facie  un- 
lawful to  box  and  work  trees  for  turpentine. 

Bryant  v.  United  SUtes,  45  C.  C.  A.  145, 
105  Fed.  941;  Orrell  v.  Bay  Mfg.  Co.  83 
Miss.  800,  70  L.RJL  881,  36  So.  561 ;  Milli- 
kin  v.  Carmichael,  139  Atl.  226,  101  Am.  St. 
Rep.  29,  35  So.  706;  United  Stotes  v. 
Waters- Pierce  Oil  Co.  116  0.  C.  A.  391,  196 
Fed.  767. 

To  show  conversion  by  a  tenant  in  com- 
mon there  must  be  either  a  demand  for 
possession  and  a  refusal  thereof  (Bond  v. 
Ward,  7  Mass.  123,  5  Am.  Dec.  30;  Bum- 
ham  V.  Marshall,  56  Vt.  365;  Gibson  v.  Mc- 
Intirc,  110  Iowa,  417,  81  N.  W.  699 ;  Smith 
V.  Welch,  10  Wis.  94;  Kewaunee  County  v. 
Decker,  30  Wis.  636),  or  a  showing  that 
some  disposition  was  made  thereof  that  was 
inconsistent  with  and  destructive  of  the 
rights  of  the  cotenant. 

One  who  effects  a  substantial  change  in 
the  form  or  nature  of  property  without  the 
knowledge  or  consent  of  the  owner  is  liable 
for  a  conversion,  and  trover  will  lie  for  the 
new  product  if  the  owner  has  not  lost  title 
thereto  under  the  doctrine  of  accession. 

38  Cyc.  2026,  Riddle  v.  Driver,  12  Ala. 
590;  Curtis  v.  Groat,  6  Johns.  168,  5  Am. 
Dec.  204;  Brown  v.  Sax,  7  Cow.  95. 

While  the  actual  wrongdoer  (in  this  case, 
Rayford)  may  be  liable  for  the  highest 
value  up  to  time  of  judgment,  an  innocent 
purchaser,  from  even  such  an  one,  can  only 
be  held  liable  as  of  the  time  of  the  purchase 
or  other  inception  of  his  rights. 

Fisher  v.  Brown,  17  C.  C.  A.  225,  87  U.  S. 
App.  407,  70  Fed.  571;  Powers  T.  United 
\%9  L.  ed. 


SUtes,  56  C.  C.  A.  128,  119  Fed.  562;  E.  B. 
Bolles  Wooden-ware  Cio.  v.  United  States, 
106  U.  S.  432,  27  L.  ed.  230,  1  Sup.  Ct.  Rep. 
398;  Potter  ▼.  United  States,  58  C.  C.  A. 
231,  122  Fed.  53. 

Assistant  Attorney  General  Kiuiebel  sub* 
mitted  the  cause  for  defendant  in  error: 

The  boxing  of  trees  upon  the  lands  in 
question  was  a  trespass. 

Shiver  v.  United  SUtes,  159  U.  &.  491,  40 
L.  ed.  231,  16  Sup.  Ct.  Rep.  54. 

The  owner  has  a  ri^t  to  insist  that  the 
land  remain  as  it  is — ^the  trees  untouched— 
except  in  so  far  as  his  license  or  demise 
authorised  changes. 

Taylor,  Land,  ft  T.  5th  ed.  fS  345,  348, 
360,  351;  Underbill,  Land,  k  T.  1909,  pp. 
707,  714;  McAdam,  Land,  ft  T.  4th  ed.  pp. 
1286,  1291;  Livingston  v.  Reynolds,  26 
Wend.  115;  McGregor  v.  Brown,  10  N.  Y. 
114. 

Boxing  and  chipping  trees  for  turpentine 
is  decidedly  not  cultivation  in  the  sense  of 
the  homestead  act  ( Re  Wooten,  5  Land.  Dec. 
389;  Re  McKensie,  86  Land.  Dec.  302; 
United  SUtes  v.  Waters-Pierce  Oil  Co.  116 
C.  C.  A.  891,  196  Fed.  767),  or  in  any  sense 
whatever. 

The  hypothesis  of  innooenea  seems  quite 
too  absurd  for  serious  consideration. 

Re  Cromartie,  1  Land  Dee.  607;  Acting 
Secretary's  Letter  of  July  1,  1885,  4  Land 
Dee.  1;  Re  Wooten,  5  Land  Dec  389;  Re 
McKensie,  36  Land  Dec.  302;  Parish  v. 
United  States,  106  C.  C.  A.  570,  184  Fed. 
590;  McKenzie  v.  United  States,  106  C.  C. 
A.  666,  184  Fed.  988;  United  States  v.  Tay- 
lor, 35  Fed.  484. 

The  trespass  being  proved,  wilfulness  is 
presumed. 

United  States  v.  Ute  Coal  ft  Coke  Co.  85 
C.  C.  A.  302,  158  Fed.  23;  Liberty  Bell  (3k>ld 
Min.  Co.  V.  Smuggler-Union  Min.  Co.  122 
C.  C.  A.  113,  203  Fed.  802,  231  U.  S.  747, 
58  L  ed.  464,  34  Sup.  Ct.  Rep.  320;  Ontral 
Coal  ft  Coke  Co.  v.  Penny,  97  C.  C.  A.  600, 
173  Fed.  344. 

The  burden  of  proving  the  trespass  inno- 
cent was  on  the  defendant. 

Dartmouth  College  v.  International  Paper 
Co.  132  Fed.  92;  £.  G.  Beechwood  Ice  Co.  v. 
American  Ice  Co.  176  Fed.  435;  United 
States  V.  Ute  Coal  ft  Coke  Co.  85  C.  C.  A. 
302,  158  Fed.  23;  Liberty  Bell  Gold  Min. 
Co.  ▼.  Smuggler-Union  Min.  Co.  122  C.  C. 
A.  113,  203  Fed.  802,  231  U.  S.  747,  58  L. 
ed.  464,  34  Sup.  Ct.  Rep.  320;  E.  E.  Bolles 
Woodenware  Co.  v.  United  States,  106  U.  S. 
432,  435,  27  L.  ed.  230,  231,  1  Sup.  Ct.  Rep. 
398;  Pine  River  Logging  ft  Improv.  Co.  v. 
United  States,  186  U.  S.  279,  293,  46  L.  ed. 
1164,  1171,  22  Sup.  Ct.  Rep.  920;  Northern 
P.  R.  Co.  T.  Lewis,  162  U.  S.  366,  374,  40 


^^ 


^^9m 


mm 


285,  286 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbm^ 


L.  ed.  1002,  1006,  16  Sup.  Ct.  Rep.  831;  St. 
Louis  Stave  Go.  v.  United  States,  100  C.  C. 
A.  640,  177  Fed.  178 ;  1  C.  J.  388. 

The  evidence  introduced  proves  wilfulness, 
not  innocence. 

Liberty  Bell  Gold  Min.  Co.  v.  Smuggler, 
Union  Min.  Co.  122  C.  C.  A.  113,  203 
Fed.  802,  231  U.  8.  747,  54  L.  ed.  464,  34 
Sup.  Ct.  Rep.  320. 

The  action  being  an  ambulatory  one  for 
the  conversion  of  the  manufactured  prod- 
ucts, it  was  not  necessary  to  allege  the  place 
of  conversion.  Nor  was  it  necessary  to  aver 
the  source  of  plaintiff's  title  to  the  goods 
converted. 

38  Cyc.  2069;  Melrose  Mfg.  Co.  v.  Ken- 
nedy, 59  Fla.  312,  51  So.  595. 

l^ere  is  no  such  vagueness  or  uncertainty 
in  the  evidence  concerning  the  amount  and 
value  of  the  goods  converted  as  would  war- 
rant an  attack  upon  the  verdict. 

Sauntry  v.  United  States,  55  C.  C.  A.  148, 
117  Fed.  132. 

Leaving  the  mortgage  aside,  it  is  plain 
that  the  government's  right  to  recovery  was 
not  affected  by  the  mixtures  and  alterations 
wrought  by  the  guilty  trespasser. 

6  Am.  &  Eng.  E;ic.  Law,  pp.  504,  596; 
The  Idaho,  93  U.  S.  575,  585,  23  L.  ed.  978, 
981;  1  C.  J.  387,  388;  Silsbury  v.  McCoon, 
3  N.  Y.  379,  53  Am.  Dec.  307;  Lampton  v. 
Preston,  1  J.  J.  Marsh.  455,  19  Am.  Dec. 
104;  Curtis  V.  Groat,  6  Johns.  169,  5  Am. 
Dec.  204;  Eaton  v.  Langley,  65  Ark.  448, 
42  L.R.A.  474,  47  S.  W.  123;  Tuttle  v. 
White,  46  Mich.  485,  4  Am.  Rep.  175,  9  N. 
W.  528;  Rockwell  v.  Saunders,  19  Barb.  473; 
Potter  V.  Mardre,  74  N.  C.  36;  Newton  v. 
Porter,  69  N.  Y.  137,  25  Am.  Rep.  152; 
Strubbee  v.  Cincinnati  R.  Co.  78  Ky.  481; 
Carpenter  v.  Lingenfelter,  32  L.rA.  422, 
note;  Distilled  Spirits  (Harrington  ▼. 
United  SUtes)  11  Wall.  356,  368,  20  L.  ed. 
167,  171;  E.  E.  Bolles  Wooden-ware  Co.  v. 
United  States,  106  U.  S.  432,  27  L.  ed.  230, 
1  Sup.  Ct.  Bjep.  398. 

While  it  is  true  that  a  mortgagee  who, 
under  authority  of  a  recording  act,  has  left 
the  mortgagor  in  possession,  may  follow  tho 
goods  if  wrongfully  sold,  and,  if  confused 
with  other  goods  of  the  mortgagor,  may 
seize  upon  all  for  the  satisfaction  of  his 
mortgage,  we  have  yet  to  find  an  authorit}^ 
for  the  proposition  that  an  innocent  third 
party,  bearing  no  relationship  whatever  to 
the  parties  to  the  mortgage,  may  be  de- 
prived of  his  goods  in  this  way  for  the  en- 
richment of  the  mortgagee. 

Robinson  ▼.  Holt,  39  N.  H.  557,  75  Am. 
Dec.  233. 

Even  if  the  goods  were  affected  by  a  lien, 
the  conversion  would  not  be  excused  or  the 
damages  diminished. 

Cooley,  Torts,  3d  ed.  pp.  69,  875;  8  Cyc 
648 


574;  6  Am.  k  Eng.  Enc.  Law,  594;  Ryder  v. 
Hathaway,  21  Pick.  305;  Hesseltine  ▼. 
Stockwell,  30  Me.  242,  50  Am.  Dec.  627;  D. 
M.  Osborne  &  Co.  v.  Cargill  Elevator  Co.  62 
Minn.  400,  64  K.  W.  1135;  38  Cyc  2010, 
2024,  2028. 

If  there  was  a  lien,  its  existence  was 
made  immaterial  by  the  sale  of  the  goods. 

Saltus  V.  Everett,  20  Wend.  273,  32  Anu 
Dec.  541;  Galvin  v.  Galvin  Brass  ft  Iron 
Works,  81  Mich.  16,  45  N.  W.  654. 

Mr.  Justice  Pitney  delivered  the  opin- 
ion of  the  court: 

This  was  an  action  by  the  United  States 
against  the  Union  Naval  Stores  Company 
for  the  conversion  during  the  years  1904 
and  1905  of  spirits  of  turpentine  and  rosin, 
alleged  to  have  been  taken  by  defendant 
from  certain  government  lands  in  the  coun- 
ty of  ^lobile,  in  the  state  of  Alabama, 
known  as  the  Freeland  homestead,  and  thus 
and  otherwise  more  particularly  described 
in  the  complaint. 

The  facts,  as  they  appeared  at  the  trial, 
were  as  follows:  Freeland  had  made  an 
application  for  a  homestead  entry  under*  f 
2289,  Rev.  Stat.  (Comp.  SUt.  1913,  §  4530), 
but  never  perfected  it.  Being  the  owner  of 
other  lands  in  the  same  neighborhood,  Free- 
land  agreed  with  one  Rayford  to  give  him 
a  tiu7>entine  lease  for  a  lump  sum  upon  all 
of  his  timber,  not  including  the  homestead. 
A  third  party  having  been  employed  to  re- 
duce the  agreement  to  writing,  Freeland 
discovered  that  the  homestead  had  been 
included,  and  he  called  Rayford's  attention 
to  this  and  tendered  back  the  [286J  check 
given  for  the  consideration  money,  on  the 
ground  that  if  the  homestead  was  included 
in  the  lease  he  would  be  in  danger  of  losing 
his  entry.  Rayford  replied:  "There  is  no 
law  against  turpentining  a  piece  of  home- 
stead land  as  long  as  you  are  on  it."  And 
so  Freeland  made  no  further  objection. 

Rayford,  during  the  years  in  question, 
conducted  turpentining  operations  upon  the 
Freeland  homestead  and  a  large  number  of 
other  tracts  in  its  vicinity.  Under  date 
December  21,  1903,  he  had  entered  into  a 
"shipping  contract"  with  the  Union  Naval 
Stores  Company,  by  which  he  undertook  to 
cut  and  box  at  least  10  crops  of  10,500 
boxes  each  from  lands  described  in  a  deed 
of  trust  or  mortgage  of  even  date  given  by 
him  to  one  Wade  as  trustee  of  the  company, 
and  to  manufacture  the  crude  turpentine 
into  spirits  of  turpentine  and  rosin,  and 
deliver  the  maniifactured  product  at  Mobile, 
Alabama,  or  other  points  selected  by  it.  By 
the  same  agreement  plaintiff  in  error  under- 
took to  advance  moneys  to  be  used  by  Ray- 
ford, and  that  it  would  receive  the  manu- 
factured turpentine  and  rosin  and  sell  it 

940  U.  8. 


1015. 


UNION  NAVAL  STORES  00.  t.  UNITED  STATES. 


286-289 


for  Rayford's  account  at  stipulated  charges 
and  commissions.  The  mortgage  was  given 
to  secure  the  advances  and  the  performance 
of  the  shipping  agreement.  It  covered 
Rayford's  turpentine  leases,  and  also  all 
emde  and  manufactured  spirits  of  turpen- 
tine, and  other  products  owned  or  in  any 
manner  secured  by  Rayford  during  the  con- 
tinuance of  the  contract.  The  crude  tur- 
pentine taken  by  Rayford  from  the  home- 
stead was  mixed  with  that  taken  from  his 
other  properties  at  or  before  it  reached  the 
still;  and  the  manufactured  products  were 
shipped  from  time  to  time  to  plaintiff  in 
error  at  Mobile,  bills  of  lading  being  sent 
by  mail,  and  accounts  of  sales  being  re- 
turned by  plaintiff  in  error  to  Rayford. 

It  was  admitted  that,  during  the  years 
1904  and  1905,  spirits  of  turpentine  and 
rosin  were  received  by  plaintiff  in  error 
from  Rayford,  under  the  contract  and  mort- 
gage referred  [287]  to,  in  quantities  great- 
er than  those  claimed  for  in  the  suit.  There 
was  evidence  as  to  the  market  values  of 
these  products  during  the  period  in  question, 
but  none  as  to  the  market  value  of  crude 
turpentine.  A  verdict  and  judgment  having 
gone  in  favor  of  the  United  States  for 
12,447.55,  defendant  appealed  to  the  circuit 
court  of  appeals,  where  it  was  directed  that 
so  much  of  this  as  represented  interest  prior 
to  the  commencement  of  the  action  should 
be  remitted,  and  the  judgment  otherwise 
affirmed.     123  0.  C.  A.  1,  202  Fed.  491. 

There  are  numerous  assignments  of  error, 
based  upon  exceptions  taken  at  the  trial, 
one  of  them  to  the  refusal  to  direct  a  ver- 
dict in  favor  of  defendant,  the  others  to 
instructions  given  or  refused  to  be  given. 
Without  reciting  these  in  detail,  we  will 
express  our  views  upon  the  principal  ques- 
tions of  law  that  are  raised. 

Neither  the  complaint  nor  the  evidence 
is  fatally  defective  or  uncertain.  The  claim 
is  for  spirits  of  turpentine  and  rosin  taken 
from  certain  described  lands.  That  it  was 
the  crude,  and  not  the  manufactured,  prod- 
uct that  was  in  a  literal  sense  taken  from 
the  land,  is  of  no  consequence.  The 
land  is  referred  to  only  to  identify  the 
chattels,  conversion  of  which  is  alleged. 
Whether  there  was  an  error  in  the  partie- 
ular  description  of  the  lands,  as  is  iuBisted, 
is  a  matter  of  no  serious  consequence,  for 
they  were  otherwise  described  as  the  "Louis 
I.  Freeland  Homestead,*'  and  there  was  un- 
contradicted evidence  that  the  lands  re- 
ferred to,  and  no  others,  were  known  by 
this  description.  That  the  evidence  did  not 
show  precisely  what  quantities  of  turpen- 
tine spirits  and  rosin,  manufactured  from 
the  crude  turpentine  taken  from  the  home- 
stead, were  received  by  the  plaintiff  in  error, 
was  not  ground  for  a  peremptory  instruc- 
to  L.  ed. 


tion  to  find  for  defendant,  or  to  limit  the 
recovery  to  nominal  damages,  since  there 
was  evidence  from  which  the  jury  could 
form  a  reasonably  certain  estimate  of  the 
amount  of  crude  taken  from  the  homestead 
during  the  [288]  years  in  question,  and  the 
amount  of  spirits  and  rosin  that  this  prob- 
ably yielded. 

There  was  no  error  in  charging  that  "the 
boxing  of  trees  by  a  settler  on  public  land 
coverwl  by  an  unperfected  homestead  entry, 
or  by  any  person  who  knew  it  was  public 
land  (which  an  unperfected  homestead  en- 
try is),  and  the  extracting  of  crude  tur- 
pentine therefrom,  constitutes  in  law  an 
intentional,  wilful  trespass,  although  he 
may  have  acted  without  knowledge  of  the 
illegality  of  the  act,  and  that  from  such 
persons  the  United  States  are  entitled  to 
recover  the  value  of  the  product  manufac- 
tured from  such  crude  turpentine  by  the 
settler,  or  from  any  person  into  whose  pos- 
session the  same  may  have  passed."  This 
refers,  of  course,  as  other  parts  of  the 
charge  clearly  show,  to  a  manufacture  by 
Rayford,  who  was  himself  the  trespasser. 

The  rights  and  privileges  of  an  entry- 
man  with  reference  to  standing  timber 
were  considered  and  discussed  in  Shiver  v. 
United  States,  169  U.  S.  491,  497,  498,  40 
L.  ed.  231-233,  16  Sup.  Ot.  Rep.  54,  where, 
after  reviewing  the  pertinent  sections  of  the 
Revised  Statutes,  it  was  said:  "From  this 
r^§um4  of  the  homestead  act,  it  is  evident, 
first,  that  the  land  entered  continues  to  be 
the  property  of  the  United  States  for  five 
years  following  the  entry,  and  until  a  pat- 
ent is  issued;  .  .  .  third,  that  mean- 
time such  settler  has  the  right  to  treat  tlie 
land  as  his  own  so  far,  and  so  far  only, 
as  is  necessary  to  carry  out  the  purposes 
of  the  act.  The  object  of  this  legislation 
is  to  preserve  the  right  of  the  actual  settler, 
but  not  to  open  the  door  to  manifest  abuses 
of  such  right.  Obviously  the  privilege  of 
residing  on  the  land  for  five  years  would  be 
ineffectual  if  he  had  not  also  the  right  to 
build  himself  a  house,  outbuildings,  and 
fences,  and  to  clear  the  land  for  cultiva- 
tion. .  .  .  It  is  equally  clear  that  he 
is  bound  to  act  in  good  faith  to  the  govern- 
ment, and  that  he  has  no  right  to  pervert 
the  law  to  dishonest  purposes,  or  to  make 
use  of  the  land  for  profit  or  speculation. 
The  law  [289]  contemplates  the  possibility 
of  his  abandoning  it,  but  he  may  not  in  the 
meantime  ruin  its  value  to  others,  who  may 
wish  to  purchase  or  enter  it.  With  respect 
to  the  standing  timber,  his  privileges  are 
analogous  to  those  of  a  tenant  for  life  or 
years.  ...  By  analogy  we  think  the 
settler  upon  «  homestead  may  cut  such  tim- 
ber as  is  necessary  to  clear  the  land  for  cul- 
tivation, or  to  build  him  a  house,  outbuild- 


280-291 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tkbm, 


ings,  and  fences,  and,  perhaps,  as  indicated 
in  the  charge  of  the  court  below,  to  exchange 
such  timber  for  lumber  to  be  devoted  to  the 
same  purposes;  but  not  to  sell  the  same  for 
money,  except  so  far  as  the  timber  may 
have  been  cut  for  the  purpose  of  cultiva- 
tion." 

There  is  nothing  in  the  letter* or  policy 
of  the  homestead  act  that  permits  the  box- 
ing and  chipping  of  pine  trees  for  the  pur- 
pose of  extracting  turpentine  for  sale  and 
profit.  It  cannot  be  regarded  as  cultiva- 
tion within  the  meaning  of  the  act;  it 
affects  the  value  of  the  inheritance  too  seri- 
ously for  that.  As  is  well  known,  the  pro- 
cess requires  the  cutting  of  a  deep  gash  or 
''box"  into  the  side  of  the  tree,  so  shaped 
as  to  catch  and  retain  a  considerable  quan- 
tity of  the  crude  gum,  and  repeated  cbip- 
pings  thereafter,  by  each  of  which  an  ad- 
ditional portion  of  the  bark  is  cut  through 
to  the  wood  so  as  to  expose  a  fresh  bleeding 
surface.  It  not  only  saps  the  vital  strength 
of  the  tree  and  lessens  its  power  to  resist 
the  force  of  the  wind,  but  exposes  the  wood 
to  decay  and  to  wood-boring  grubs  and 
beetles;  while  the  waste  gum,  being  highly 
inflammable,  increases  the  danger  of  forest 
fires.  Government  publications  have  repeat- 
edly pointed  out  the  ill  effects  of  the  prac- 
tice.i 

The  recognition  of  these  evils  led  Con- 
gress to  pass  the  [200]  act  of  June  4,  1900, 
chap.  2571,  34  Stat,  at  L.  208,  now  found  in 
Crim.  Code,  §  51  (act  of  March  4,  1909, 
chap.  321,  35  Stat,  at  L.  1088,  1098,  Comp. 
Stat.  1913,  SS  10,165,  10,218).  It  is  true 
that  in  Bryant  v.  United  States  (1901) 
45  C.'C.  A.  145,  105  Fed.  941,  the  circuit 
court  of  appeals  for  the  fifth  circuit,  in 
holding  that  boxing  for  turpentine  was  not 
a  criminal  offense  within  the  meaning  of 
§  2461,  Rev.  Stat.  (Comp.  Stat.  1913,  S 
4980),  said,  obiter,  "We  think  it  is  not  a 
matter  of  common  knowledge  that  such  cut- 
ting and  boxing  of  pine  trees  destroy  the 
value  of  the  trees  as  timber,  or  that  it  has 
a  tendency  even  to  retard  the  growth  of 
the  trees,"  and  that  this  view  was  made  the 
basis  of  a  decision  by  the  circuit  court  of 
appeals  from  the  eighth  circuit  that,  prior 
to  the  act  of  1906,  the  boxing  of  trees  for 
turpentine  on  public  lands  was  not  action- 
able.    United  States  v.  Waters  Pierce  Oil 

1  "A  New  Method  of  Turpentine  Orchard- 
ing," Bulletin  No.  40,  Bureau  of  Forestry, 
1903,  pp.  9-18;  "The  Naval  Stores  Indus- 
try," Bulletin  No.  229,  Department  of  iUri- 
culture,  July  28,  1915;  "Conservative  ^r- 
pentining,"  Senate  Doc.  676,  60th  Cong.,  2d 
Hess.,  vol.  11,  p.  498.  See  also  Re  Cromartie, 
1  Land  Dec.  607 ;  4  Land  Dec.  1 ;  Re  Wooten, 
5  Land  Dec  889;  Re  McKenzie,  36  Land 
Dec.  802. 
650 


Co.  116  C.  C.  A.  391,  196  Fed.  767,  769.  We 
are  clear,  however,  that  the  act  of  1906  only 
rendered  criminal  that  which  before  was 
actionable  because  not  included  in  any  right 
or  privilege  expressly  or  by  implication  con- 
ferred upon  the  homesteader  by  the  act  of 
Congress.  So  the  circuit  court  of  appeals 
for  the  fifth  circuit  held  in  Parish  v.  United 
States,  106  C.  C.  A.  570,  184  Fed.  590. 
And  see  United  Statea  v.  Taylor,  36  Fed. 
484. 

Rayford,  in  conducting  his  turpentining 
operations  upon  the  homestead  with  notice 
that  the  land  was  the  property  of  the  United 
States,  became  a  wilful  trespasser,  although 
he  may  have  supposed,  as  he  is  said  to 
have  declared,  that  there  was  "no  law 
against  it."  He  acted  with  full  notice  of 
the  facts,  and  his  mistake  of  law  cannot 
excuse  him. 

Upon  the  facts  as  the  jury  must  have 
foimd  them,  the  distillation  by  Rayford  of 
the  gum  that  was  taken  from  the  govern- 
ment's land  was  a  continuing  act  of  tres- 
pass that  did  not  devest  the  United  States 
of  its  property,  but  left  it  still  entitled  to 
the  manufactured  products.  Distilled  Spir- 
its (Harrington  v.  United  SUtes)  11  Wall. 
356,  369,  20  L.  ed.  167,  171.  If  the  doctrine 
of  confusion  of  goods  were  to  be  applied,  the 
entire  product  of  the  still  would  belong  to 
the  United  States.  The  [291]  Idaho,  93  U. 
S.  575,  586,  23  L.  ed.  978,  982.  But,  by  the 
instructions  of  the  trial  judge,  recovery  was 
limited  to  the  value  of  the  products  manu- 
factured from  crude  gum  taken  from  the 
Freeland  homestead. 

It  is  ingeniously  .argued  that  a  different 
rule  must  govern  as  between  the  United 
States  and  the  defendant  company,  because 
the  company  had  a  mortgage  upon  Rayford's 
product,  both  crude  and  manufactured;  that 
the  crude  stuff  as  soon  as  it  reached  the 
still  was  inextricably  mixed  with  a  much 
greater  quantity  to  which  Rayford  had  an 
unquestioned  title,  which  passed  to  defend- 
ant at. once  by  virtue  of  the  mortgage,  and 
that  the  evidence  shows  such  hopeless  con- 
fusion and  admixtures  of  unknown  quanti- 
ties and  varying  qualities  of  gum  that  no 
reasonable  ascertainment  of  the  rights  of  the 
parties  as  tenants  in  common  is  possible; 
therefore,  the  government  proper^,  being 
relatively  small  in  value,  passed  to  defend- 
ant under  the  doctrine  of  accession.  It  is 
less  confidently  argued  that  the  same  result 
would  apply  even  as  between  the  lawful 
owner  and  a  wilful  trespasser;  but  this  we 
deem  clearly  untenable.  One  who  knowings 
ly  takes  the  property  of  another  cannot,  by 
changing  its  form  or  increasing  its  value,  or 
by  commingling  it  with  other  property  of 
his  own,  acquire  title  by  accession.     Dis- 

140  U.  S. 


1915. 


O^EEFE  T.  UNITED  STATES. 


291-294 


tilled  Spirits,  supra;  Silsbury  v.  MeCoon, 
3  N.  Y.  379,  63  Am.  Dec.  307,  315,  note. 

The  argument  based  upon  the  mortgage 
is  confronted  with  this  obstacle,  to  say 
nothing  of  others:  that  the  mortgage  and 
the  shipping  contract  alilce  contemplated 
that  Rayford  should  manufacture  the  crude 
turpentine  into  spirits  and  rosin  and  ship 
these  to  defendant,  and  such  was  the  actual 
course  of  dealing  thereunder.  Defendant  at 
no  time  asserted  any  lien  upon  or  property 
in  the  crude  material  by  virtue  of  the  mort- 
gage. And  even  if  it  were  now  permitted 
by  a  fiction  to  assert  ownership  in  all  that 
part  of  the  crude  gum  which  was  the  law- 
ful property  [202]  of  Rayford,  as  of  the 
time  that  it  reached  his  still,  it  must  per- 
force place  itself  in  the  position  of  employ- 
ing Rayford  as  its  agent  for  the  purpose  of 
distilling  the  turpentine.  Now  Rayford,  in 
doing  this,  placed  with  it  a  comparatively 
small,  but  still  substantial,  quantity  of 
crude  turpentine  that  was  the  property  of 
the  United  States.  Defendant  cannot  take  a 
benefit  from  the  distilling  operations  thus 
conducted  by  Rayford  without  at  the  same 
time  assuming  a  responsibility  for  that 
which  he  did;  and  what  he  did  in  distilling 
the  government's  gum  was  a  continuing 
trespass,  that  left  the  United  States  entitled 
to  its  property  in  its  changed  form,  the 
same  if  the  distilling  was  done  by  Rayford 
under  an  agency  from  defendant,  as  if  done 
on  his  individual  account. 

And,  of  course,  if  defendant's  title  dates 
from  the  time  of  the  delivery  to  it  of  the 
manufactured  product,  it  can  take  no  great- 
er interest  than  that  which  Rayford  held. 

Thus,  whether  we  indulge  the  fiction,  or 
whether  we  adhere  to  the  practical  fact, 
which  is  that  Rayford  under  the  contract  de- 
livered manufactured  products  to  defendant, 
the  latter  can  take  no  credit  for  the  work 
and  labor  bestowed  upon  the  turpentine  by 
the  wrongdoer,  but  must  answer  for  its 
value  as  manufactured  products.  E.  E. 
Bolles  Wooden-Ware  Co.  v.  United  States, 
106  U.  S.  432,  435,  27  L.  ed.  230,  231,  1 
Sup.  Ct.  Rep.  398;  Guffey  v.  Smith,  237 
U.  S.  101,  119,  59  L.  ed.  856,  866,  35  Sup. 
Ct.  Rep.  526. 

The  after-acquired-property  clause  in  the 
mortgage  does  not  help  matters  for  defend- 
ant. Property  in  the  turpentine  could  not 
be  acquired  by  Rayford  without  the  consent 
of  the  United  States,  and  this  he  did  not 
have.  See  Holt  v.  Henley,  232  U.  S.  637, 
640,  58  L.  ed.  767,  772,  34  Sup.  Ct.  Rep.  459 ; 
Detroit  Steel  Cooperage  Co.  v.  Sisters- 
ville  Brewing  Co.  233  U.  S.  712,  58  L.  ed. 
1166,  34  Sup.  Ct.  Rep.  753. 

It  is  insisted  that  if  a  tenancy  in  com- 
mon existed  in  the  manufactured  product, 
the  possession  of  it  by  defendant  company 
60  Ii.  ed. 


was  not  tortious,  and  that  in  order  to  show 
a  conversion  there  must  be  either  a  demand 
for  possession  and  refusal  thereof,  or  a 
showing  that  some  [293]  disposition  was 
made  of  the  chattels  inconsistent  with  and 
destructive  of  the  rights  of  plaintiff  as  co- 
tenant.  But,  taking  the  shipping  contract 
and  th»  mortgage  with  the  testimony  and 
admissions  as  to  the  course  of  business  car- 
ried on  thereunder,  the  jury  was  fully  war- 
ranted in  finding  that  defendant  had 
converted  the  manufactured  products  by  sell- 
ing them  soon  after  they  were  received,  and 
accounting  to  Rayford  for  the  proceeds.  The 
question  of  conversion  was  submitted  to 
the  jury,  with  a  proper  instruction  that  in 
such  *  «vent  a  demand  for  possession  was 
futile  and  therefore  unnecessary. 

The  trial  court  instructed  the  jury  that 
recovery  should  be  based  upon  the  market 
value  of  the  spirits  and  rosin  at  the  time 
they  were  received  by  defendant,  and  it  is 
insisted  that  the  value  at  the  time  of  the 
conversion  ought  to  have  been  taken  instead. 
As  to  this  it  is  sufficient  to  say  that,  except 
as  it  was  to  be  inferred  that  probably  the 
manufactured  products  were  sold  not  long 
after  their  receipt  by  defendant,  there  is 
nothing  to  throw  light  upon  the  time  that 
intervened  between  receipt  and  sale;  and 
while  by  stipulatioik  the  highest  and  lowest 
market  prices  for  turpentine  and  for  rosin 
during  the  years  1904  and  1905  were  shown, 
it  did  not  appear  at  what  time  the  prices 
were  high,  and  at  what  time  low.  In  short, 
the  evidence  contained  nothing  to  aid  the 
jury  in  distinguishing  between  the  market 
price  at  the  time  of  receipt  and  the  market 
price  at  the  time  of  sale.  Defendant  did 
nothing — if  it  could — ^to  elucidate  the  mat- 
ter by  evidence,  nor  did  its  exceptions  call 
the  attention  of  the  trial  judge  to  the  point 
now  insisted  upon. 

Minor  points  are  raised,  but  none  that 
seems  to  eall  for  discussion. 

Judgment  affirmed. 

Mr.  Justice  McReynolds  took  no  part  in 
the  consideration  or  decision  of  this  case. 


[204]  J.  D.  CKEEFE,  Receiver  ot  Kew 
Orleans,  Texas,  ft  Mexico  Railroad  Com- 
pany, Appt, 

▼. 

UNITED  STATES  and  the  Interstate  Com- 
merce Commission. 

(See  8.  O.  Repoiter's  ed.  294-305.) 

Interstate    Gonaiineroe    Gommlssion    — 

—  powers  -*  division  of  Joint  rates 

—  tap  HfkeB, 

1.  To   prescribe  the  maximum   allow- 
ance out  of  the  joint  rates  which  trunk  li^^ 


SU^KEME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


railways  may  make  to  tap  lines  which  are 
owned  hj  the  persons  who  own  the  timber 
and  mills  which  they  principally  serve  can- 
not be  said  to  be  beyond  the  powers  of  the 
Interstate  Commerce  Commission  because 
no  joint  rate  was  fixed  either  by  the  Com- 
mission or  by  the  carriers,  and  they  had 
not  been  afforded  an  opportunity  to  agree 
in  respect  to  the  division,  since,  in  addition 
to  the  provisions  of  the  act  of  February 
4,  1887  (24  Stat,  at  L.  379,  chap.  104), 
§  15,  as  amended  by  the  act  of  June  18, 
1010  (36  Stat,  at  L.  539,  551,  chap.  309, 
Comp.  Stat.  1913,  §§  993,  8583),  §  12,  deal- 
ing expressly  with  the  division  of  rates 
where  carriers  fail  to  agree  among  them- 
selves as  to  the  division,  or  where  they 
have  refused  or  neglected  voluntarily  to 
establish  through  routes  or  joint  rates,  the 
section  also  empowers  the  Commission,  if 
of  the  opinion  that  any  individual  or  joint 
rates  or  charges,  or  classifications,  regula- 
tions, or  practices  are  unjust,  or  unlawful- 
ly discriminatory,  to  prescribe  others  which 
shall  be  just  and  reasonable,  and  authorizes 
the  Commission  to  determine  the  maximum 
charge  which  the  carrier  may  pay  for  serv- 
ices rendered  or  instriunentalities  furnished 
by  the  owner  of  the  property  transported. 
[Powers  of  Interstate  Commerce  Commission, 
see  Interstate  Commerce  Commission,  in  Di- 
gest Sup.  Ct.  1908.] 

Carriers  —  -tap  line  cases  —  dlTision  of 
joint  rates. 

2.  The  division  of  through  rates  be- 
tween trunk  line  rail^ys  and  tap  lines  as 
prescribed  by  the  Interstate  Commerce  Com- 
mission is  not  necessarily  arbitrary  be- 
cause, while  classifying  all  service  rendered 
by  the  tap  lines  for  distances  up  to  3  miles 
from  junction  points  as  switching,  and  al- 
lowing for  this  a  division  of  $2  and  $3  a 
car,  allowances  for  all  distances  above  3 
miles  are  based  upon  mileage. 

[For  other  cases,  see  Carriers,  III.,  in  Digest 
Sup.  Ct.  1908.] 

Constitutional  law  —  due  process  of  law 
—  right  of  carrier  to  give  rebates  or 
bonuses. 

3.  A  trunk  line  railway  has  no  right 
protected  by  the  due  process  of  law  clause 
of  the  Federal  Constitution  to  build  up  its 
business  by  paying  tap  line  railroads 
bonuses  or  rebates  which  have  been  for- 
bidden by  Congress  from  considerations  af- 
fecting the  public  welfare. 

[For  other  cases,  see  Constitutional  Law,  IV. 
b,  4,  tQ  Digest  Sup.  Ct.  1908.] 

[No.  516.] 

Argued  December  15,  1915.     Decided  Feb- 
ruary 21,  1916. 

APPEAL  from  the  District  Court  of  the 
United  States  for  the  Eastern  District 
of  Louisiana  to  review  a  decree  which  dis- 
missed a  bill  praying  the  annulment  of  an 
order  of  the  Interstate  Commerce  Commis- 
sion prescribing  the  maximum  allowance 
out  of  joint  rates  which  trunk  line  rail- 
ways may  make  to  tap  lines.    Affirmed. 

The  facts  are  stated  In  the  opinion. 
65S 


Messrs.  U.  Generes  Dufonr  and  Walter 
F.  Taylor  argued  the  cause,  and,  with  Mr* 
Morgan  M.  Mann,  filed  a  brief  for  appel- 
lant: 

The  Interstate  Commerce  Commission  had 
no  power  to  make  the  order  of  July  29th, 
1914,  herein  complained  of. 

Interstate  Commerce  Commission  v.  Chi- 
cago  G.  W.  R.  Co.  209  U.  S.  119,  62  L.  ed. 
712,  28  Sup.  Ct.  Rep.  493;  Re  Transporta- 
tion of  Salt,  10  Inters.  Com.  Rep.  148;  In- 
terstate Commerce  Commission  v.  Stickney, 
215  U.  S.  98,  54  L.  ed.  112,  30  Sup.  Ct.  Rep. 
66;  Southern  P.  Co.  v.  Interstate  Commerce 
Commission,  219  U.  8.  433,  55  L.  ed.  283, 
31  Sup.  Ct.  Rep.  298. 

The  Commission,  in  making  the  order 
complained  of,  applied  erroneous  principles 
of  law,  in  that  it  excluded  from  consider- 
ation competitive  conditions  as  an  element 
to  be  taken  into  account  in  determining 
whether  a  division  is  just  and  reasonable, 
or  unlawfully  discriminatory  and  a  cloak 
for  a  rebate. 

Interstate  Commerce  Commission  v.  Chi- 
cago G.  W.  R.  Co.  141  Fed.  1003,  affirmed 
in  209  y.  S.  108,  52  L.  ed.  705,  28  Sup.  Ct. 
Rep.  493;  Phipps  v.  London  &  N.  W.  R.  Co. 
[1892]  2  Q.  B.  229,  61  L.  J.  Q.  B.  N.  S.  379, 
66  L.  T.  N.  S.  721,  8  Eng.  Ry.  &  C.  Traffic 
Cas.  83;  Interstate  Commerce  Commission 
V.  Baltimore  &  O.  R.  Co.  145  U.  S.  263,  36 
L.  ed.  699,  4  Inters.  Cora.  Rep.  92,  12  Sup. 
Ct.  Rep.  844;  Cincinnati,  N.  0.  &  T.  P.  R. 
Co.  V.  Interstate  Commerce  Commission,  162 
U.  S.  184,  40  L.  ed.  935,  5  Inters.  Com.  Rep. 
391,  16  Sup.  Ct.  Rep.  700;  Interstate  Com- 
merce Commission  v.  Alabama  Midland  R. 
Co.  168  U.  S.  144,  104,  42  L.  ed.  414,  422, 
18  Sup.  Ct.  Rep.  45;  Louisville  k  N.  R.  Co. 
V.  Behlmer,  175  U.  S.  648,  44  L.  ed.  309.  20 
Sup.  Ct.  Rep.  209:  East  Tennessee,  V.  &  G. 
R.  Co.  V.  Interstate  Commerce  Commission, 
181  U.  S.  1,  45  L.  ed.  719,  21  Sup.  (  t.  U<'p. 
516;  Texas  &  P.  R.  Co.  v.  Interstate  Com- 
merce Commission,  162  U.  S.  197,  40  L.  ed. 
940,  5  Inters.  Com.  Rep.  405,  16  Sup.  Ct. 
Rep.  666;  Interstate  Commerce  Commission 
V.  Louisville  &  N.  R.  Co.  190  U.  S.  273.  47 
L.  ed.  1047,  23  Sup.  Ct.  Rep.  687 ;  Interstate 
Commerce  Commission  v.  Western  &  A.  R. 
Co.  35  C.  C.  A.  217,  93  Fed.  83;  Judson,  In- 
terstate Commerce,  §§  175-183. 

The  order  oi  July  29th,  1914,  is  arbitrary, 
and  there  was  no  substantial  evidence  in  the 
record  upon  which  the  same  could  have  been 
based.  There  was  no  evidence  before  the 
Commission  to  sustain  its  finding  to  the 
effect  that  any  allowance  or  division  in  ex- 
cess of  those  which  it  prescribed  would 
result  in  undue  preference  and  imjust  dis- 
crimination. 

Interstate  Commerce  Commission  v. 
Union  P.  R.  Co.  222  U.  S.  541,  56  L.  ed. 

240  U.  8* 


1915. 


O'KEEFE  V.  UNITED  STATES. 


308,  32  Sup.  Ct.  Rep.  108;  Ft.  Dodge  Com- 
mercial Club  V.  Illinois  C.  R.  Co.  16  Inters. 
Com.  Rep.  681;  Business  Men's  Asso.  v. 
Chicago,  St.  P.  M.  &  O.  R.  Co.  2  Inters.  Com. 
Rep.  41;  New  York  Produce  Exch.  v.  Balti- 
more &  O.  R.  Co.  7  Inters.  Com.  Rep.  660; 
Loup  t)reek  Colliery  Co.  v.  Virginian  R. 
Co.  12  Inters.  Com.  Rep.  471;  Gustin  v. 
Atchison,  T.  &  S.  F.  R.  Co.  8  Inters.  Cora. 
Rep.  288;  Wilmington  Tariff  Asso.  v.  Cin- 
cinnati, P.  k  V.  R.  Co.  0  Inters.  Com.  Rep. 
167;  Corporation  Commission  t.  Norfolk  & 
W.  R.  Co.  19  Inters.  Com.  Rep.  300. 

The  effect  of  the  Commission's  order  is  to 
deprive  complainant  of  its  property  without 
due  process  of  law  by  denying  to  complain- 
ant the  right  to  contract  and  compete  for 
traffic  originating  on  the  line  of  tho  Louisi- 
ana &  Pacific  Railway  Company. 

Interstate  Commerce  Commission  v.  Chi- 
cago G.  W.  R.  Co.  209  U.  S.  108,  62  L.  ed. 
705,  28  Sup.  Ct.  Rep.  493. 

The  rights  of  the  complainant  have  not 
been  foreclosed  by  the  action  of  the  Com- 
mission. 

Interstate  Commerce  Commission  t. 
Louisville  &  N.  R.  Co.  227  U.  S.  88,  67  L. 
ed.  431,  33  Sup.  Ct.  Rep.  186;  Interstate 
Commerce  Commission  v.  Union  P.  R.  Co. 
222  U.  S.  641,  56  L.  ed.  308,  32  Sup.  Ct.  Rep. 
108. 

Mr.  Joseph  W.  Folk  argued  the  cause 
and  filed  a  brief  for  the  Interstate  Com- 
merce Commission: 

In  the  absence  of  prior  action  by  the  Com- 
mission, the  courts  have  no  jurisdiction  to 
determine  the  discriminatory  or  nondis- 
criminatory character  of  any  agreement  as 
to  divisions. 

Atchison,  T.  &  S.  F.  R.  Co.  v.  United 
States,  232  U.  &  199,  221,  58  L.  ed.  568,  576, 
34  Sup.  Ct.  Rep.  291. 

The  Commission  had  power  to  fix  maxi- 
mum divisions. 

Louisiana  &  P.  R.  Co.  v.  United  States, 
209  Fed.  253,  234  U.  S.  1,  29,  58  L.  ed.  1185, 
1196,  34  Sup.  Ct.  Rep.  741;  Ellis  v.  Inter- 
state Commerce  Commission,  237  U.  S.  434, 
445,  59  L.  ed.  103G,  1041,  35  Sup.  Ct.  Rep. 
645;  Texas  &  P.  R.  Co.  v.  Interstate  Com- 
merce Commission,  1G2  U.  S.  197,  40  L.  ed. 
940,  5  Inters.  Com.  Rep.  405,  16  Sup.  Ct. 
Rep.  666;  lUinois  C.  R.  Co.  v.  Interstate 
Commerce  Commission,  206  U.  S.  441,  51  L. 
ed.  1128,  27  Sup.  Ct.  Rep.  700;  Interstate 
Coounerce  Commission  v.  Illinois  C.  R.  Co. 
215  U.  6.  462,  64  L.  ed.  280,  30  Sup.  Ct. 
Rep.  155;  Mitchell  Coal  ft  Coke  Co.  v.  Penn- 
sylvania R.  Co.  230  U.  S.  247,  57  L.  ed. 
1472,  33  Sup.  Ct.  Rep.  916;  Houston,  E.  k 
W.  T.  R.  Co.  V.  United  States,  234  U.  S. 
342,  58  L.  ed.  1341,  34  Sup.  Ct.  Rep.  833; 
Louisville  ft  N.  R.  Co.  v.  United  States,  238 
•0  li.  ed. 


U.  S.  1,  20,  59  L.  ed.  1177,  1184,  86  Sup.  Ct 
Rep.  696. 

The  Commission  had  pow^  to  fix  the 
divisions  upon  a  mileage  basis. 

Ozark  Fruit  Growers'  Asso.  v.  St.  Louis 
ft  S.  F.  R.  Co.  16  Inters.  Com.  Rep.  140; 
Re  Investigation  of  Alleged  Unreasonable 
Rates  on  Meats,  22  Inters.  Com.  Rep.  176; 
Indianapolis  Freight  Bureau  v.  Cleveland, 
C.  C.  ft  St.  L.  R.  Co.  23  Inters.  Com.  Rep. 
198;  Re  Advances  on  Fresh  Meats  ft  Pack- 
ing House  Products,  23  Inters.  Com.  Rep. 
663 ;  Iowa  State  Bd.  of  R.  Comrs.  v.  Arizona 
Eastern  R.  Co.  28  Inters.  Com.  Rep.  193;  F. 
S.  Royster  Guano  Co.  v.  Atlantic  Coast 
Line  R.  Co.  31  Inters.  Com.  Rep.  458;  Rail- 
road Commission  v.  St.  Louis  Southwestern 
R.  Co.  34  Inters.  Com.'  Rep.  472;  Thompson 
V,  Railroad  Commission,  198  Fed.  691; 
Texas  ft  P.  R.  Co.  v.  Railroad  Commission, 
112  C.  C.  A.  638,  192  Fed.  280. 

The  Commission  having  the  power  to 
regulate  these  divisions,  it  was  an  adminis- 
trative question  within  its  province  to  de- 
termine whether  they  should  be  regulated 
upon  a  mileage  basis  or  otherwise. 

Interstate  Commerce  Commission  v.  Union 
P.  R.  Co.  222  U.  S.  641,  647,  650,  66  L.  ed. 
308,  311,  312,  32  Sup.  Ct.  Rep.  108;  Inter- 
state Commerce  Commission  ▼.  Illinois  C. 
R.  Co.  215  U.  S.  452,  470,  54  L.  ed.  280, 
287,  30  Sup.  Ct.  Rep.  156;  Baltimore  ft  O. 
R.  Co.  V.  United  States,  216  U.  S.  481,  494, 
54  L.  ed.  292,  297,  30  Sup.  Ct.  Rep.  164; 
Illinois  C.  R.  Co.  v.  Interstate  Commerce 
Commission,  206  U.  S.  441,  464,  51  L.  ed. 
1128,  1133,  27  Sup.  Ct.  Rep.  700;  Los 
Angeles  Switching  Case  (Interstate  Com- 
merce Commission  v.  Atchison,  T.  ft  S.  F. 
R.  Co.)  234  U.  S.  294,  314,  58  L.  ed.  1319, 
1328,  34  Sup.  Ct.  Rep.  814;  Interstate  Com- 
merce Commission  v.  Chicago,  R.  I.  ft  P.  R. 
Co.  218  U.  S.  88,  103,  54  L.  ed.  946,  965,  30 
Sup.  Ct.  Rep.  661;  United  States  v.  Louis- 
ville ft  N.  R.  Co.  235  U.  S.  314,  320,  59  L. 
ed.  245,  250,  36  Sup.  Ct.  Rep.  113. 

Disadvantages  in  rates  due  to  disad- 
vantageous location  do  not  constitute  an 
undue  prejudice  or  an  undue  discrimination, 
cither  in  fact  or  in  law. 

United  States  v.  Baltimore  ft  0.  R.  Co. 
231  U.  8.  274,  58  L.  ed.  218,  34  Sup.  Ct.  Rep. 
75. 

It  is  not  the  province  of  the  Commission 
to  equalize  by  rate  adjustment  dissimilar 
conditions^  due  to  location. 

Page  Mill  Co.  v.  Norfolk  ft  W.  R.  Co.  30 
Inters.  Com.  Rep.  612;  Railroad  Comrs.  v. 
Atchison,  T.  ft  S.  F.  R.  Co.  22  Inters.  Com. 
Rep.  410;  Wichita  Business  Asso.  ▼.  Atchi- 
son, T.  ft  S.  F.  R.  Co.  30  Inters.  Com.  Rep. 
55. 

The  act  to  regulate  oommeroe  does  not 


295,  ^96 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Temm, 


attempt  to  equalize  fortunes,  opportunities, 
or  abilities. 

Interstate  Commerce  Commission  ▼.  Dif- 
fenbaugh,  222  U.  S.  42,  46,  56  L.  ed.  83,  87, 
32  Sup.  Ct.  Rep.  22;  Southern  P.  Co.  v.  In- 
terstate Commerce  Commission,  219  U.  S. 
433,  55  L.  ed.  283,  31  Sup.  Ct.  Rep.  298. 

Competitive  conditions  cannot  justify  the 
purchase  of  traffic. 

Wight  V.  United  States,  167  U.  S.  512, 
42  L.  ed.  258,  17  Sup.  Ct.  Rep.  822. 

The  legality  of  maximum  divisions  fixed 
by  the  Commission  must  prevail  over  any 
alleged  equities  of  appellant. 

Southern  P.  Co.  v.  Interstate  Commerce 
Commission,  supra. 

Any  agreement  with  respect  to  divisions 
contrary  to  the  order  of  the  Commission  is 
illegal  and  void. 

Armour  Packing  Co.  v.  United  States,  209 
U.  S.  56,  52  L.  ed.  681,  28  Sup.  Ct.  Rep.  428. 

The  act  to  regulate  commerce  was  in- 
tended to  correct  rebating,  favoritism,  and 
discrimination,  and  to  bring  about  justice 
and  equality  in  the  treatment  of  shippers. 

Interstate  Commerce  Commission  v.  Chi- 
cago, R.  I.  &  P.  R.  Co.  218  U.  S.  88,  54  L. 
ed.  946,  30  Sup.  Ct.  Rep.  651. 

Assistant  Attorney  General  Underwood 
argued  the  cause  and  filed  a  brief  for  the 
United  States: 

The  discriminations  which  the  Commis- 
sion found  to  exist  could  only  be  remedied 
by  establishing  uniform  divisions  on  a  mile 
age  basis. 

Ozark  Fruit  Growers'  Asso.  v.  St.  Louis  & 
S.  F.  R.  Co.  16  Inters.  Com.  Rep.  140;  Re 
Investigation  of  Alleged  Unreasonable  Rates 
on  Meats,  22  Inters.  Com.  Rep.  176 ;  Indian- 
apolis Freight  Bureau  v.  Cleveland,  C.  C.  & 
St.  L.  R.  Co.  23  Inters.  Com.  Rep.  198; 
Sheridan  Chamber  of  Commerce  v.  Chicago, 
B.  &  Q.  R.  Co.  26  Inters.  Com.  Rep.  644; 
Mississippi  River  Case,  28  Inters.  Com.  Rep. 
61;  Arizona  Corp.  Commission  v.  Atchison, 
T.  &  S.  F.  R.  Co.  28  Inters.  Com.  Rep.  428; 
Thompson  v.  Railroad  Commission,  198  Fed. 
691;  Texas  ft  P.  R.  Co.  v.  Railroad  Commis- 
sion, 112  C.  C.  A.  538,  192  Fed.  280. 

The  order  was  within  the  authority  of 
the  Commission,  was  made  after  full  in- 
vestigation, is  supported  by  the  proof,  and  is 
conclusively  correct. 

Interstate  Commerce  Commission  v. 
Illinois  C.  R.  Co.  215  U.  S.  452,  470,  64  L. 
ed.  280,  287,  30  Sup.  Ct.  Rep.  155;  Inter- 
state Commerce  Commission  v.  Union  P.  R. 
Co.  222  U.  S.  541,  547,  56  L.  ed.  308,  811, 
32  Sup.  Ct.  Rep.  108;  United  States  v. 
Louisville  k  N.  R.  Co.  235  U.  S.  314,  320, 
321,  59  L.  ed.  245,  250,  251,  35  Sup.  Ct.  Rep. 
113;  Pennsylvania  Co.  v.  United  States,  236 
U.  S.  351,  59  L.  ed.  616,  P.  U.  R.  1915B,  261, 
S3  Sup.  Ct.  Rep.  870. 
0^4 


Mr.  Justice  Pitney  delivered  the  opinion 
of  the  court: 

This  is  an  appeal  from  a  decree  dismiss* 
ing  a  bill  filed  by  appellant,  as  receiver  of 
the  New  Orleans,  Texas,  ft  Mexico  Railroad 
Company,  against  the  United  States  and  the 
Interstate  Commerce  Commission,  pfaying 
the  annulment  of  an  order  of  the  Commis- 
sion, dated  July  29,  1914,  made  in  the  Tap 
Line  Cases,  following  the  decision  of  this 
court  reported  in  234  U.  S.  1,  58  L.  ed.  1185, 
34  Sup.  Ct.  Rep.  741.  The  order  required 
certain  trunk  line  railway  companies,  in- 
cluding the  New  Orleans,  Texas,  ft  Mexico, 
to  reopen  through  routes  and  publish  joint 
rates  to  interstate  destinations  with  certain 
tap  lines,  including  Louisiana  ft  Pacific  Rail- 
way Company,  with  wliich  appellant's  road 
had  and  has  a  connection,  and  prohibited 
any  of  the  line  carriers  from  making  to 
any  of  the  tap  lines  an  allowance  or  di- 
vision out  of  the  joint  rates  in  excess  of 
maximum  amounts  prescribed  as  follows: 

'Tor  switching  a  distance  of  1  mile  or 
less  from  the  junction,  $2  per  cnr;  over  1 
mile  and  up  to  3  miles  from  tlie  junction,  $3 
per  car;  on  shipments  from  points  over  3 
miles,  and  not  more  than  6  miles  from  the 
junction,  1^  cents  per  100  pounds;  over  6 
miles,  and  not  more  than  10  miles  from  the 
junction,  2  cents  per  100  pounds;  over  10 
miles,  and  not  more  than  20  miles  from  the 
junction,  2i  [296]  cents  per  100  pounds; 
over  20  miles,  and  not  more  than  30  miles 
from  the  junction,  3  cents  per  100  pounds; 
over  30  miles,  and  not  more  than  40  miles 
from  junction,  3i  cents  per  100  pounds; 
over  40  miles  from  the  junction,  4  cents  per 
100  pounds."    [31  Inters.  Com.  Rep.  492.] 

The  following  is  an  outline  of  the  his- 
tory of  the  case.  After  the  supplemental 
report  of  the  Commission  in  Star  Grain  ft 
Lumber  Co.  v.  Atchison,  T.  ft  S.  F.  R.  Co. 
14  Inters.  Com.  Rep.  364,  372;  17  Inters. 
Com.  Rep.  338,  in  which  the  making  of  al- 
lowances and  divisions  to  tap  lines  for  the 
traffic  of  proprietary  mills  was  condemned, 
although  no  formal  order  was  entered,  the 
trunk  lines,  including  the  New  Orleans, 
Texas,  ft  Mexico,  filed  cancelation  of  tariffs 
theretofore  filed  providing  for  joint  rates 
with  various  tap  lines,  including  the  Louis- 
iana ft  Pacific.  Certain  of  the  tap  lines 
filed  complaints  with  the  Commission,  re- 
questing that  through  routes  and  joint 
rates  with  trunk  lines  be  enforced.  The 
Commission  thereupon  investigated  the  tap 
line  situation  with  reference  to  lumber 
operations  in  the  states  of  Arkansas,  Mis- 
souri, Louisiana,  and  Texas.  Pending  this 
investigation,  the  cancelation  of  joint  rates 
was  suspended  from  time  to  time.  Oa 
April  23,  1912,  the  Commission  filed  its  re- 
port, and  on  May  14,  1912,  its  supplemental 

940  U.  8. 


1015. 


O'KEEFE  ▼.  UNITED  STATES. 


296-299 


report  (23  Inters.  Com.  Rep.  277,  549),  and 
in  orders  dated  Maj  14  and  October  30, 
1912,  based  upon  these  reports,  it  found 
that  the  tracks  and  equipment  of  the  tap 
lines  with  respect  to  the  industry  of  the 
proprietary  lumber  companies  were  plant 
facilities,  and  the  service  performed  for  the 
proprietary  companies  in  moving  logs  to 
the  mill  and  mill  products  to  the  trunk 
line  was  not  a  transportation  service  by 
a  common  carrier  railroad,  but  a  plant  serv- 
ice by  a  plant  facility,  and  that  any  allow- 
ance or  division  out  of  the  rate  on  account 
thereof  was  unlawful  and  resulted  in  undue 
and  unreasonable  preferences  and  unjust 
discriminations;  and  the  order  of  October 
30  required  the  trunk  lines,  including  the 
[297]  New  Orleans,  Texas,  ft  Mexico,  to 
desist  and  abstain  from  making  any  such  al- 
lowance to  any  of  the  tap  lines  mentioned. 
Certain  of  the  tap  lines,  including  the 
Louisiana  ft  Pacific,  filed  petitions  in 
the  commerce  court  to  annul  this  order.  The 
court  granted  this  relief  (209  Fed.  244), 
and  its  decision  was  affirmed  by  this  court 
(234  U  S.  1),  the  court  holding  that  the 
O>mmission  exceeded  its  authority  in  con- 
demning the  tap  line  railroads,  when  duly 
incorporated  as  common  carriers  under  the 
state  laws,  as  being  a  mere  attempt  to 
evade  the*  commerce  law  and  secure  rebates 
and  preferences  for  themselves.  At  the 
same  time  the  court  said  (p.  28) : 

"It  is  doubtless  true,  as  the  Commission 
amply  shows  in  its  full  report  and  supple- 
mental report  in  these  cases,  that  abuses 
exist  in  the  conduct  and  practice  of  these 
lines  and  in  their  dealings  with  other  car- 
riers which  have  resulted  in  unfair  ad- 
vantages to  the  owners  of  some  tap  lines 
and  to  discriminations  against  the  owners 
of  others.  Because  we  reach  the  conclusion 
that  the  tap  lines  involved  in  these  appeals 
are  common  carriers,  as  well  of  proprietary 
as  nonproprietary  traffic,  and  as  such  en- 
titled to  participate  in  joint  rates  with 
other  common  carriers,  that  determination 
falls  far  short  of  deciding,  indeed,  does  not 
at  all  decide,  that  the  division  of  such  joint 
rates  may  be  made  at  the  will  of  the  car- 
riers involved,  and  without  any  power  of  the 
Commission  to  control.  That  body  has  the 
authority  and  it  is  its  duty  to  reach  all  un- 
lawful discriminatory  practices  resulting  in 
favoritism  and  unfair  advantages  to  par- 
ticular shippers  or  carriers.  It  is  not  only 
within  its  power,  but  the  law  makes  it  the 
duty  of  the  Commission  to  make  orders 
whkh  shall  nullify  such  practices  resulting 
in  rebating  or  preferences,  whatever  form 
they  take  and  in  whatsoever  guise  they  may 
appear.  If  the  divisions  of  joint  rates  are 
sudi  as  to  amount  to  rebates  or  discrimina- 
tions in  favor  of  the  owners  of  the  tap  lines 
••  Ij.  ed. 


because  of  their  disproportionate  amount  in 
view  of  the  [208]  service  rendered,  it  is 
within  the  province  of  the  Commission  to 
reduce  the  amount  so  that  a  tap  line  shall 
receive  just  compensation  only  for  what  it 
actually  does." 

After  this  decision,  the  Commission,  after 
a  rehearing  and  further  argument,  but  with- 
out taking  further  testimony,  and  upon  the 
same  record  on  which  its  orders  of  May  14 
and  October  30,  1912,  had  been  entered, 
made  further  findings  (31  Inters.  Com.  Rep. 
490),  upon  which  was  based  the  order  of 
July  29,  1914,  now  under  attack. 

The  New  Orleans,  Texas,  ft  Mexico  Rail- 
road Company  operates,  directly  and 
through  stock  ownership  of  other  companies, 
a  system  of  railroad  extending  from  New 
Orleans  across  the  states  of  Louisiana  and 
Texas.  The  Louisiana  ft  Pacific  Railway 
Company,  incorporated  under  the  laws  of 
the  state  of  Louisiana,  owns  and  operates  a 
tap  line  within  that  state,  including  ap- 
proximately 80  miles  of  main  and  branch 
lines,  its  main  line  extending  from  De  Rid- 
der  southerly  to  Lake  Charles,  approximate- 
ly 45  miles,  crossing  and  forming  a  junction 
with  the  main  line  of  the  New  Orleans, 
Texas,  ft  Mexico  at  Fulton,  which  is  about 
25  miles  from  De  Ridder  and  19  miles  from 
Lake  Charles.  The  Louisiana  ft  Pacific  con- 
nects also  with  the  following  trunk  lines: 
At  De  Ridder,  with  the  Gulf,  Cok>rado,  ft 
Santa  Fe  and  the  Kansas  City  Southern ;  at 
Bon  Ami  (near  De  Ridder)  with  the  Kan- 
sas City  Southern;  and  at  Lake  Charles, 
with  the  Louisiana  ft  Western  (Southern 
Pacific  Company),  the  Kansas  City  South- 
em,  and  the  St.  Louis,  Iron  Mountain,  ft 
Southern.  Located  along  the  line  of  the 
Louisiana  ft  Pacific  are  certain  lumber  mills, 
which  are  called  proprietary  mills  because 
controlled  by  the  same  interests  which  own 
the  stock  of  the  Louisiana  ft  Pacific.  Some 
of  these  are  at  De  Ridder,  Bon  Ami,  and 
Longville,  all  of  which  points  are  north  of 
Fulton,  while  one  is  at  Gossport,  near  Lake 
Charles.  At  Bannister  and  Ragley,  on  the 
line  of  the  Louisiana  ft  Pacific,  north  of 
Fulton,  there  are  nonproprietary  mills. 

[200]  In  the  year  1906,  before  the  con- 
struction or  definite  location  of  the  New  Or- 
leans, Texas,  ft  Mexico,  an  agreement  was 
made  between  that  company,  then  known  by 
another  name^.on  the  one  hand,  and  the 
Louisiana  ft  Pacific  and  the  various  com- 
panies owning  the  proprietary  mills,  on  the 
other,  whereby  the  Louisiana  ft  Pacific  and 
the  lumber  companies  agreed  to  give  a  sub- 
stantial amount  of  their  tonnage  to  the  New 
Orleans,  Texas,  ft  Mexico  upon  a  division 
of  the  joint  rates  approximating  35  per  cent, 
not  exceeding,  however,  in  any  case,  5^ 
oenta  per  hundred  pounds.    The  lumber  * 


299-301 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


nage  which,  pursuant  to  this  arrangement, 
the  New  Orleans,  Texas,  ft  Mexico  expected 
to  receive  and  did,  until  the  order  of  July 
29,  1914,  actually  receive,  was  a  great  in- 
ducement for  the  company  to  locate  its  line 
through  the  territory  where  it  is  located. 
During  the  five  fiscal  years  prior  to  July, 
1914,  its  lumber  tonnage  amounted  to  37.45 
per  cent  of  its  total  gross,  and  of  this  the 
Louisiana  ft  Pacific  supplied  approximately 
one  third,  or  about  13  per  cent  of  the  total 
gross  tonnage.  Since  the  order  of  July  29, 
1914,  the  New  Orleans,  Texas,  ft  Mexico  has 
been  deprived  of  practically  all  of  this  ton- 
nage, which  has  been  diverted  to  the  other 
trunk  lines  because  the  Louisiana  ft  Pacific, 
in  order  to  gain  as  large  a  division  of  the 
joint  rate  as  possible,  moves  its  lumber  ton- 
nage from  points  near  the  northerly  end  of 
its  line  across  the  line  of  the  New  Or- 
leans, Texas,  ft  Mexico,  and  delivers  it  to 
the  trunk  lines  at  the  southerly  end  of  its 
line;  and  also  takes  tonnage  originating 
near  the  southerly  end  of  its  line,  carries 
it  across  the  line  of  the  New  Orleans,  Texas, 
ft  Mexico,  and  delivers  it  to  trunk  lines  at 
or  near  its  northerly  terminus.  It  is  said 
that  the  practical  effect  of  the  Commission's 
order  results  always  to  the  disadvantage  of 
the  New  Orleans,  Texas,  ft  Mexico  with  re- 
spect to  traffic  originating  upon  the  line  of 
the  Louisiana  ft  Pacific,  and  that  the  disad- 
vantage is  in  no  case  less  than  1  cent  per 
hundred  pounds,  or  approximately  $5  per 
[300]  car.  A  single  illustration  will  suffice. 
From  the  mill  at  Longville  to  the  junction 
of  the  New  Orleans,  Texas,  ft  Mexico  the  dis- 
tance is  8.2  miles,  so  that  if  the  product  of 
this  mill  were  shipped  over  appellant's  road, 
the  Louisiana  ft  Pacific  would  receive  only  2 
cents  *per  hundred  pounds,  or  $10  per  car; 
whereas,  by  carrying  the  product  beyond 
Fulton  to  Lake  Charles,  and  there  deliver- 
ing it  to  a  trunk  line,  the  Louisiana  ft 
Pacific  receives  a  division  of  3  cents  per 
hundred;  or  by  taking  the  Longville  product 
to  De  Ridder,  the  Louisiana  ft  Pacific  like- 
wise receives  3  cents  per  himdred.  As  the 
trunk  lines  all  operate  under  a  common 
blanket  rate  on  lumber  for  this  territory, 
the  through  rate  is  the  same  in  all  circum- 
stances, and  the  proprietary  mills  route 
their  shipments  in  such  manner  as  to  give 
to  the  Louisiana  ft  Pacific  the  largest  pos- 
sible division,  always  to  the  disadvantage 
of  the  New  (h-leans,  Texas,  ft  Mexico. 

It  is  insisted  by  appellant  that  the  Com- 
mission was  without  power  to  prescribe 
maximum  divisions,  as  was  done  by  the  or- 
der of  July  29,  1914,  because  no  joint  rate 
was  fixed,  either  by  the  Commission  or  by 
the  parties,  and  they  had  not  been  afforded 
an  opportunity  to  agree  in  respect  to  the 
division.  This  is  based  upon  the  view  that 
656 


§  15  of  the  Commerce  act  as  amended  (act 
of  June  18,  1910,  chap.  309,  §  12,  36  Stat 
at  L.  539,  551,  Comp.  Stot.  1913,  §§  993, 
8583),  contains  only  two  provisions  dealing 
expressly  with  the  division  of  rates,  the 
first  being  applicable  where  the  carriers  fail 
to  agree  among  themselves  upon  the  divi- 
sion, the  other  where  the  carriers  have  re- 
fused or  neglected  to  establish  through 
routes  or  joint  rates  voluntarily.  Without 
stopping  to  consider  whether  the  circum- 
stances of  this  case  bring  it  within  either 
of  these  provisions,  we  deem  it  clear  that 
to  regard  these  only  is  to  take  too  narrow 
a  view  of  the  scope  of  the  section.  The 
first  part  of  the  same  section  enacts :  "That 
whenever  .  .  .  the  Commission  shall  be 
of  opinion  that  any  individual  or  joint  rates 
[301]  or  charges  whatsoever  demanded, 
charged,  or  collected  by  any  common  carrier 
or  carriers  subject  to  the  provisions  of  this 
act  for  the  transportation  of  .  .  •  prop- 
erty ...  or  that  any  individual  or 
joint  classifications,  regulations,  or  practices 
whatsoever  of  such  carrier  or  carriers  .  .  . 
are  imjust  or  unreasonable  or  unjustly  dis- 
criminatory, or  unduly  preferential  or  pre- 
judicial or  otherwise  in  violation  of  any  of 
I  the  provisions  of  this  act,  the  Commission 
is  hereby  authorized  and  empowered  to  de- 
termine and  prescribe  what  will  be  the  just 
and  reasonable  individual  or  joint  rate  or 
rates,  charge  or  charges,  to  be  thereafter  ob- 
served in  such  case  as  the  maximum  to  be 
charged,  and  what  individual  or  joint  classi- 
fication, regulation,  or  practice  is  just,  fair, 
and  reasonable,  to  be  thereafter  followed, 
and  to  make  an  order  that  the  carrier  or 
carriers  shall  cease  and  desist,"  etc.  And  a 
later  part  of  the  same  section  (p.  553)  pre- 
scribes: **If  the  owner  of  property  trans- 
ported under  this  act  directly  or  indirectly 
renders  any  service  connected  with  such 
transportation,  or  furnishes  any  instrumen- 
tality used  therein,  the  charge  and  allow- 
ance therefor  shall  be  no  more  than  is  just 
and  reasonable,  and  the  Commission  may, 
after  hearing  on  a  complaint  or  on  its  own 
initiative,  determine  what  is  a  reasonable 
charge  as  the  maximum  to  be  paid  by  the 
carrier  or  carriers  for  the  services  so  ren- 
dered or  for  the  use  of  the  instrumentality 
so  furnished,  and  fix  the  same  by  appropri- 
ate order,"  etc. 

In  the  case  in  234  U.  S.  1,  this  court  did 
not  ignore,  but  fully  recognizedi  the  signifi- 
cance of  the  community  of  interest  between 
the  lumber  company  and  the  tap  line.  It 
was  pointed  out  (p.  27)  that  timber  and  its 
manufactured  products  were  exempted  from 
the  absolute  prohibition  of  the  commodity 
clause  of  the  Hepburn  act  (of  June  29, 
1906,  chap.  3591,  34  Stat,  at  L.  684,  585, 
Comp,  Stat.  1913,  {  8563).     But  this  was 

940  U.  8. 


1015. 


OICEEFE  V.  UNITED  STATES. 


801-304 


regarded  as  one  of  the  dreiimstances  render- 
ing it  important  that  the  Commission  should 
deal  with  the  abuses  [302]  found  to  exist 
in  the  diyision  of  joint  rates  with  the  tap 
lines,  not  by  abolishing  them  altogether,  but 
by  "reducing  the  amount  so  that  a  tap  line 
shall  receive  just  compensation  only  for 
what  it  actually  does."  So,  in  Interstate 
Commerce  Commission  v.  Diffenbaugh,  222 
U.  S.  42,  46,  56  L.  ed.  83,  87,  32  Sup.  a. 
Rep.  22,  the  court  said:  "The  act  of  Con- 
gress in  terms  contemplates  that  if  the  car- 
rier receives  services  from  an  owner  of  prop- 
erty transported,  or  uses  instrumentalities 
furnished  by  the  latter,  he  shall  pay  for 
thenu  That  is  taken  for  granted  in  §  15; 
the  only  restriction  being  that  he  shall  pay 
no  more  than  is  reasonable,  and  the  only 
permissive  element  being  that  the  Commis- 
sion may  determine  the  maximum."  Again, 
in  Ellis  V.  Interstate  Commerce  Commission, 
237  U.  S.  434,  445,  59  L.  ed.  1036,  1041,  35 
Sup.  Ct  Rep.  645,  it  was  said:  "The  inter- 
vening corporation  may  be  a  means  by 
which  an  owner  of  property  transported  in- 
directly renders  the  services  in  question,  and 
in  that  event  its  charges  are  subject  to  the 
Commission  by  §  15." 

We  are  clear  that  the  Commission  had 
jurisdiction  to  make  the  order  of  July  29, 
1014. 

Next  it  is  insisted  that  the  Commission 
applied  erroneous  principles  of  law,  in  that 
it  excluded  from  consideration  competitive 
conditions  as  an  element  in  determining 
whether  a  division  is  just  and  reasonable  or 
unlawfully  discriminatory.  The  order  is 
not  open  to  this  criticism.  It  not  only  takes 
competitive  conditions  into  consideration, 
but  establishes  the  maximum  divisions  for 
the  very  purpose  of  preventing  preferences, 
discriminations,  and  rebates,  as  methods  of 
competition. 

It  is  insisted  that  there  was  no  evidence 
before  the  Commission  to  sustain  its  find- 
ing to  the  effect  that  any  allowance  or  di- 
vision in  excess  of  the  limits  prescribed 
would  result  in  undue  preference  and  imjust 
discrimination.  This,  of  course,  is  to  be 
tested  by  a  consideration  of  the  evidence 
that  was  before  the  Commission.  The  re- 
port and  supplemental  report  of  April  23 
and  Hay  14,  and  the  orders  of  May  14  and 
October  30,  1912,  and  the  [303]  oral  evi- 
dence and  main  exhibits  before  the  Commis- 
sion from  the  beginning  of  the  tap  line  in- 
vestigation to  the  making  of  the  order  last 
mentioned  were  offered  in  evidence.  Appel- 
lant, however,  has  printed  only  a  small  part 
of  the  testimony,  being  that  vrhich  especially 
relates  ta  the  Louisiana  k  Pacific  Railway, 
its  organization,  ownership,  manner  and  cost 
of  construction,  operating  revenue  and  ex- 
penses, accumulated  surplus,  etc.  But,  be- 
•0  li.  ed. 


sides  these  details  as  to  thb  line,  the  Com- 
mission had  before  it,  as  its  reports  show, 
a  mass  of  evidence  relating  to  numerous 
other  tap  lines,  operated  under  somewhat 
similar  circumstances,  including  evidence  as 
to  the  aDowances  actually  made  to  them 
out  of  the  joint  rate.  Evidence  of  what  was 
allowed  on  these  tap  lines  had  a  tendency 
to  show  what  ^as  reasonable  and  therefore 
permissible  upon  other  tap  lines,  including 
the  Louisiana  ft  Pacific.  It  is  said  there  was 
no  evidence  to  enable  the  Commission  to 
fix  a  just  compensation  to  that  line  for  a 
haul  of  a  given  number  of  miles  as  com- 
pared with  the  just  compensation  for  a  haul 
of  a  greater  or  lesser  number  of  miles;  no 
evidence  as  to  terminal  expenses,  or  cost  of 
road  haul,  or  the  relation  between  these 
factors,  or  as  to  other  elements  which 
should  be  taken  into  account  in  fixing  a  di- 
vision according  to  the  length  of  haul.  But 
the  evidence  showed  that  some  limitation 
was  caUed  for,  and,  in  general  at  least,  fur- 
nished the  materials  upon  which  to  base  it. 
A  tribunal  such  as  the  Interstate  Commerce 
Commission,  expert  in  matters  of  rate  regu- 
lation, may  be  presumed  to  be  able  to  draw 
inferences  that  are  not  obvious  to  others. 
Nor  can  it  be  said  that  the  Commission's 
action  was  arbitrary  because,  while  classify- 
ing all  the  service  for  distances  up  to  3 
miles  from  jimction  as  switching,  and  al- 
lowing for  this  a  division  of  $2  and  $3  per 
car,  allowances  for  all  distances  above  3 
miles  are  based  upon  mileage.  It  is  ad- 
mitted that  distance  is  an  element  properly 
to  be  considered;  but  appellant  insists 
[304]  that  terminal  service,  the  origin  of 
traffic,  etc.,  are  more  important  elements. 
This  is  an  administrative  question.  The  tap 
line  problem  is  exceedingly  complex,  and  the 
importance  of  a  general  rule  based  upon 
simple  elements  easily  ascertained  is  obvi- 
ous. We  are  not  able  to  say  that  the  adop- 
tion of  the  mileage  basis  is,  imder  the  cir- 
cmnstances,  sufficient  to  sustain  a  charge  of 
arbitrary  action. 

The  final  contention,  which  is  that  the 
Commission's  order  in  effect  deprives  the 
New  Orleans,  Texas,  &  Mexico  of  its  prop- 
erty without  due  process  of  law,  by  deny- 
ing to  it  the  right  to  contract  and  compete 
for  traffic  originating  on  the  line  of  the 
Louisiana  &  Pacific,  is  transparently  un- 
sound. The  trunk  line  has  no  constitution- 
al right  to  build  up  its  business  by  paying 
bonuses  or  rebates  that  have  been  forbidden 
by  act  of  Congress  from  considerations  af- 
fecting the  public  welfare. 

We  are  not  to  be  understood  as  conced- 
ing that  appellant  is  in  a  legal  sense  ag- 
grieved by  the  action  of  the  Commission  in 
limiting  the  allowance  to  the  tap  line.  The 
case  la  singular,  in  that  neither  this  tap 
42  61^" 


sot,  SOB                   BUPBEUB  CX)URT  OP  THB  UNITED  STATES.  Qcr.  Ttmu, 

line  nor  any  tap  line  la  oomptkiuiug  that  CVimmiHioD,  In  pauing  on  the  clAlm,  found 

tbe  allowance  ii  too  emtUl;  nor  ia  any  tnmk  that  the  claimant  naa  indebted  t«  the  atate 

line  complaining  that  it  is  too  great.     Tha  i"  a  ipecified  amount,  being  th«  dlfferenM 

real   basia  of  appellant's   complaint,  repre-  between  Uie  amount  of  the  claim  and  tb* 

..-fi...  .  *^,„v  li—  n.^;^   ;.  tk.t  »h«  .1  """  which  It  found  that  the  claimant  had 

•entmg  a  tnmk  bne  carrier   i«  that  the  a^-  ,i„„,,     f„uduie„tly   collected  from  tha 

towanee  to  the  Up  Ime  i.  too  amaU.    It  i.  J^^te.  and  rendered   judgment  accordingh! 

queationable  whether  It  lies  in  the  mouth  „he„  the  aUte  supreme  court,  in  afflrm- 

of  the  line  carrier  to  object  on  thii  ground,  lug  the  action   of  the  Diapenaary  Commia- 

We  recognize  the  exceptional  situation  in  lion,  did  ao  only  in  ao  far  aa  the  Commia- 

which   appellant'i  road   ia   placed,  and   the  «ion  declined  to  approve  the  claim,  espreaa- 

hardahip  that  reaulta  to  it  from  the  appli-  '7  holding  that  the  validity  of  any  poasibl* 

cation  of  the  order  of  July  26,  19H.  to  the  ae^'.^d  by  the  aUte  againat  the  claimant 

t— <n.  «.:^«. »:..«.,.»«  »i..ii»  nr<k.Tn..i.  remained  wholly  uncontrolled  by  the  Com- 

trafflc  originating  upon  the  line  of  the  Louia-  miggig^.g  gnjing                             ' 

Una  &  Pacific.     After  that  order,  the  New  [p^,  „(b„  caeea,' eee  Conttltutlonal  Law.  IV. 

Orleans,  Teiaa,  ft  Mexico  and  the  Louiaiana  b,  B,  in  Digest  Sup.  CL  l»OB.l 

ft  Pacific  undertook  to  agree  upon  through  Oonstltatlonal    law  —  due    proceaa    oT 

routes  and  joint  rates,  with  divielona  not  law  —  Itupairinc  contract  obllyMtloB 

greater  than  those  allowed  by  the  Commie-  —  transfer  ol  state  funds, 

sion,  but  aaid  to  be  equalized  ao  as  to  en-  2.  The  removal  by  the  South  Carolina, 

able  the  New  Orleans,  Teiaa.  ft  Mexico  to  Dispenaary  Commiasion    under  the  "uthor- 

compet,    (30S)    on   equal   terms   with   the  L°.  .n' th:  tin.  «^  ^"^  Sf™  «'■- 

.,.,,.           ~..                    .        ,  lunda  in  the  banda  of  county  diapensanea. 

Other  trunk  lines.    Th.a  agreement,  ao  far  aa  due  to  a  corporation  which  the  Cklmmiasim 

appears,  has  not  been  aubmitted  to  the  Com-  has  found  to  be  indebted  to  the  state,  does 

mission  for  ita  approval  or  disapproval,  and  not  deprive  the  corporation  of  ite  property 

i  intimate  no  opinion  upon  the  question  without  due  proceaa  of  law,  nor  impair  any 

'    '  contract  obligations,  the  state  nut  having 

consented  to  be  sued. 

(For  other  fbhs,  loe  Constltatloaal   Law,   IT. 
b.  *:    IV.   t,  m    Diceu   Bap.   Ct.    IWS.] 

Slate  —  Immanltr     from     ealt  —   salt 
■C^lnat  state  officers. 

3.  The  state's  immunity  from  suit  pra- 

"^^^  vents  a  Federal  court  from  taking  juria* 

diction  of  a  suit  against  individual  meni- 

CASOLINA    GLASS    COMPANY,    Plff.    tn  bers  of  the  South  Carolina  Dispensary  Com- 

Err.,  mission    to    recover    judgment    for    moneys 

V.  due  the  plaintiff   from  county  dispensaries 

STATE  OF  SOUTH  CAROLINA.    (No.  IS.)  which  the  Commission,  acting  under  the  au- 

thority  of  state  l^alation  attacked  aa  on* 

CAROLINA    OLASS    COMPANY,    Plff.    In  conatltutlonal,    had    withdrawn    from    sud> 

£rr^  county  diapenaariea,  upon  finding  that  plain- 

V  tiS  waa  indebted  to  the  state. 

WILLIAM  J.  MURRAY,  Chairman,  John  "'".""J'"  Sf1{,08*l  ^'"*''  ^''"^"'  '"  "' 

McSween,  et  al..  Constituting  the  State  "^     °            ,       , 

Diapenaary  Conualaaion,  et  al?  (No.  B.)  Error  from  circuit  court  of  .ppcala  - 

■^          ^           constltntional  question. 

CAROLINA   GLASS   COMPANY.   PUT.   in  ,      <■  ^  Federal  circuit  court  of  app«U 

j<ff_  haa  no  appellate  jurisdiction   m   an   action 

y  *'  in   which   the   juriadiction   of    the    diatriet 

WILLIAM   J.   MURRAY,   John   McSween,  '?"r*.r"'   '"1°'""^   "P-"   ?%■".'!   ^""^ 

VjTv^.   -a    w~^iL™:   w.**™    V^A  that   the    controversy    involved    the    appli< 

f.«^Sr  ^;  J^^«  B^i             '  «'ti™  «'  »»••  F"'""'  Conatitution. 

Jamea  8.  Bric«.     (No.  EOS.)  ,p„^  „t^„  „^    ^  Appeal  and   Error.   III. 

■  c.  In  Dlceat  Sup.  Ct  1908,1 

CAROLINA   GLASS    COMPANY,   Plff.    in 

^'-  [Nos.  12,  9,  206,  and  204.] 

WILUAM  J.  MURRAY,  John  McSween,  Kotk.— Generally,  on  suite  against  a  atata 

Adolphtw  N.  Wood,  Aveiy  Patton,  and  _Bee  notes  to  Murdock  Parlcw  Grate  Co. 

Jamea  8.  Brice.     (No.  204.)  ».  Com.  e  L.Rji..  3Bfl;  Carr  v.  State,  11 

L.R.A.   370;   Beera  t.   Arkansas,   16  L.  ed. 

(See  S.  C.  Reporter'a  ed.  306-318.)  U.  8.  091;  Hans  v.  Louiaiana,  33  L.  ed.  C. 

S.  B42. 

-  dne    proceaa    of  On  anlte  against  state  offlcera  aa  sulta 

against  atate-^^ee  notes  to  Sanders  v.  Sax- 

1.  A  claim  for  goods  fumiahed  to  the  ton,  1  L.RA.(N.S.)  727;  Ex  parte  Young, 

South  Carolina  diapenaary  cannot  be  aaid  IS  L.R.A.(N.B.)  032;  LouUville  ft  N.  R.  Co. 

to  have  been  oonflacated  in  violation  of  Fed-  r.  Burr,  i4  L.R.A.(N.S.)  189;  and  Beera  v. 

vl  righU  because  the   State  Di^penaaiy  Aikauaaa,  16  L.  ed.  U.  S.  991. 

«««  940  U.  S. 


ins.  CAROLINA  OLASS  CO.  v.  SOUTH  CAROLINA. 

Argued  Jannaij  £0,  1910.     Decided   Feb-  29  Sup.  Ct.  Rep.  101,  16  Ann.  Cma.  27C; 

nutry  21,  1910.  Kuhu  v.  Fainnont  Coal  Co.  21S  U.  6.  SU, 

54  L.  ed.  228,  30  Sup.  Ct.  Rep.  IM;  Vm- 

IN  ERROR  to  tha  Supreme  Court  ol  the  dock  v.  Memphia,  20  Wall.  S90,  22  L.  ad. 

State   of  South  Carolina   to   review   a  429;  Scott  v.  McNeal,  164  U.  S.  34,  38  Jj. 

jodgment  which  affirmed  a  deciaion  of  Uw  ed.  806,  14  Sup.  Ct.  Rep.  HOB;  Lake  Conn- 

Btata  Diapenaary  CommiaBlon,  rejecting  a  ty  t.  RoUina,  130  U.  S.  002,  32  L.  ed.  1O50, 

daim  upon  finding  that  the  claimant  waa  9  Sup.  Ct.  Rep.  061;  United  SUtei  t.  QoU- 

indebted  to  the  atste.     Affirmed.     Alao  enberg,  168  U.  S.  06,  42  I*  ed.  394,  IB  Sup, 

IN  ERROR  to  the  Supreme  Court  of  the  ct  Rep.  3;  SUte  Co.  v.  Jonea,  90  S.  C.  218, 

Bute   of   South   Carolina   to   review   a  gs  g,  e.  1048;  United  Statea  v.  Freeman,  S 

decree    in   an   original   proceeding   in    that  Tgow.  550,  11   L.  ed.  724;   United  Statea  ». 

court,  refuaing  to  enjoin  the  SUte  Diapen-  Qilmore,  8  Wall.  330,  19  I*  ed.  390;   State 

aary  Commiaaion  from  removing  funds  from  ,.  pacific  Ouano  Co.  22  8.  C.  74;  Witt*  v. 

county  diepeneariea.     Afiirmed.     Also  Weinberg,  37  8.  C.  603,  17  S.  E.  881;  Sharp 

IN   ERROR  to  the  Dtitriot  Court  of  the  y.    Kinaman,    18    8.    C.    108;    Lenhardt-r. . 

United  SUtea  for  the  Eaatern  District  French,  57  S.  C.  403,  36  8.  E.  781 ;  Williaiu 

of  South   Carolina   to  review,  a  decree  dls'  ,.  ir^y,   IG   8.  C.  4SB;   Railroad  Comn.  ». 

missing,    for   want   of   juriadiction,   a   luit  Columbia,  N.  &  L.  R.  Co.  82  B.  C.  418,  H 

against   individual   members   of   the   South  g^  g_  240. 

Carolina  Dispensary  Commission  to  recover  '  tv^,  pUlntiff  in   wror  had  contract  and 

judgment    for    moneys    alleged    to    be    due  property  rights  in  the  money  due  and  owing 

plaintiff  from  county  diapenaariea  which  the  ^   [„^   t^e  county   dispensaries,   and   the 

Commission    has    withdrawn    upon    finding  .equestratlon  and  confiscation  of  thia  mcHMy 

that   plaintiff  was  indebted   to   the  aUte.  ^y  the  defendanta,  claiming  to  act  by  yiitae 

I  Affirmed.     Alio  „,  u,eir  office  aa  member*  and  advlaera  of 

N    ERROR  to  the  Un.ted  SUtea  Circuit  ^.e  State  Dispensary  Commission  by  virtM 

Court  of  Appeals  for  the  Fourth  Circuit  „(  the  so-called  overjudgment  of  Novembw 

to  review  a  judRment  which  affirmed  the  goth,   1909,  and  the  authority  claimed  to 

judgment  of  the  District  Court  for  the  East-  ^Rve  been  conferred  upon  them  by  the  art 

ern  District  of  South  Carolina,  just  above  „,  igiQ   impaired  the  obligation  of  plaintUT 

mentioned.      Reveraed   and    remanded   with  ,„  g„„r's  contract  rights  with  reference  to 

directiona  to  diamisa  the  wtit  of  error  to  g^p^  moneys,  deprived  plaintilT  in  error  ol 

the  District  Court  for  want  of  juriadiction.  5^,   property   without   due   process   of   Uw, 

™^'  ^'°'/^  ^J.-  ^^^A  ^"^  fi?'  i^I  ^!^-    Prot^tion  of  the  law.,  in  violation  of  the 
392;   No.  204,  124  C.  C.  A.  423.  208  Fed,    J^tj,  Amendment. 

•^5:      ,  ^  .  ^  J  ,     *v         ,   -  Curran  v.  Arkansas,  Ifi  How.  304.  .14  L. 

The  facU  are  aUtod  in  tha  opinion.  ^  ^^5.  j^^^  ,   g^  „,  Sj^j^_  3  g    ^ 

Mr.  IVIIIlMn  H.  LyiM  argued  the  cause,  126;  Baring  t.  Dabney,  19  Wall.  1,  9,  22  L. 

mnd,  with  Messrs.  David  W.  Robinaon  and  ed.  90,  96;  Davis  v.  Gray,  16  Wall.  203,  21 

^o-Rerry  8.  Lylei,  Bled  a  brief  for  plain-  L.  ed.  447;  Green  v.  Riddle,  S  Wheat.  1, 

tiff  in  error:  92,  S  L.  ed.  647,  670;   PUnters'  Bank  t. 

The  so-called  overjudgment  waa  null  and  Sharp,  0  How.  301,  12  L.  ed.  448;  Edwards 

-void.  T.  Eean^,  90  U.  8.  696,  24  L.  ed.  793; 

SUte  ex  rel.  Lyon  v.  SUte  Dispensary  StaU  ex  rel.  Lyon  v.  SUte  Dispensary  Com- 

Conunission,  79  8.  C.  316,  00  S.  E.  928;  mission,  79  8.  C  316,  00  S.  E.  928;  Hnmy 

ilurray  v.  Wilson  Distilling  Co,  213  U.  8.  v.  Wilson  Distilling  Co.  213  U.  S.  151,  93 

351.  63  L.  ed.  742,  20  Sup.  Ct.  Rep.  458;  L.  ed.  742,  20  Sup.  Ct.  Rep.  468. 
X>en   ex  dem.   Murray  v.   Hobokcn   Land   A        The  suit  was  one  brought  against  the  da- 

Improv.   Co.   18   How.  272,   IG   L.   ed.   372;  fendanta,   who,   claiming  to  act  aa   offleara 

^iahimura  Ekiu  v.  United  States,  142  U.  S.  of  the  state  and  under  color  of  unconstita- 

Q51,  35  L.  ed.  1147,  12  Sup.  Ct.  Rep.  330;  tionat    statutes,   committed    acts   of   wrong 

Kilboum  *.  Thompson,  103  U.  8.  168,  20  L.  and  Injury  to  the   rights   and  property  of 

«d.   377;   Hurtado  v.  California,   110  U.   8.  the  plaintiff,  acquired  under  contract  with 

fS16,  28  L.  ed.  232,  4  Sup.  Ct.  Rep.  Ill,  292;  the  state,  and  was  to  request  money  from 

Cooley,  Const.  Lim.  7th  ed.  504;  Holdcn  v.  such  defendanU  unlawfully  taken  by  then 

Hardy,  160  U.  S.  391,  42  L.  ed.  700,  18  Sup.  from  plaintiff,  on  behalf  of  tha  sUto,  or  for 

Ct.  Rep.  383;  Re  Tyler,  140  U.  8.  104,  167,  compensation  in  damagea.  and  therefore  was 

S7   L.  ed.  689,  097.  13  Sup.  Ct.  Rep.  785;  not   a   suit   against  the   sUte,   nor   oao  to 

Great  Southern   Fire   Proof   Hotel   Co.  v.  which  the  sUte  waa  a  neeeaaary  party. 
Jones,  193  U.  S.  632,  48  L.  ed.  778,  24  Sup.  i     United  SUtea  v.  Lee,  106  U.  8.  100,  2U, 

Ct  Rep.  676;  North  American  Cold  Storage  27   L.   ed.   171,   170,  1  Sup.   Ct  Rep.  240; 

Co.  V.  Chicago,  211  U.  S.  300,  63  L.  ed.  196,  Poindeitar  y.  Greenhow,  114  U.  8.  270,  887, 
•0  I.,  ed.  %V« 


807-300 


SUPREME  COURT  OF  THE  UMITED  STATBa 


Oct.  1 


29  L.  ed.  IBS,  1&2,  6  Sup.  Ct.  Rep.  H3,  9S2 
Re  Tyler,  140  U.  6.  190,  37  L.  ed.  098.  1 
Sup.  Ct.  Rep.  T8S. 

Where  the  JnrUdietioa  of  the  distric 
court  i«  BfBt  invoked  upon  &  Federft)  quct 
tion,  the  CAM  miut  be  brought  direct  t 
this  court,  And  the  kppelUte  juriadietion  o 
thfi  court  ia  eicliuiTe. 

Loeb  V.  Columbia  Twp.  179  U.  S.  472,  41 
L.  ed.  280,  21  Sup.  Ct.  Rep.  174;  Americai 
Sugir  Ref.  Co.  v.  New  Orleaai,  181  U,  S 
277,  46  L.  ed.  8G9,  21  Sup.  Ct.  R^.  646 
Union  k  P.  Bsnk  v.  Hempbis,  189  U.  S.  71 
47  L.  ed.  712,  23  Sup.  Ct.  Rep.  004. 

Ur.  Benjamin  Llndaer  Abner  ftrgue* 
tha  cause,  and,  with  Mr.  Thomaa  E.  Peeplea 
filed  a  brief  tor  defsndanta  in  error: 

The  act  creating  county  djipenaary  boardi 
did  not  change  in  any  way  the  conatructioi 
and  principlea  laid  down  in  the  eaaea  o 
State  ex  rel.  Lyon  t.  State  Diapenaary  Com 
tniaaion,  70  S.  C.  316,  60  S.  E.  928,  and  Mur 
ray  ».  Wilaon  Diititling  Co.  213  U.  S.  IBl 
63  L.  ed.  742,  20  Sup.  Ct.  Rep.  4GB. 

The  atate  cannot  be  sued  without  ita  con- 
•ent,  and  auch  conaent  can  be  given,  aa  il 
ia  a  voluntary  act,  under  auch  conditions  ae 
it  aeee  fit  to  impose. 

Beera  v.  Arkanaaa,  20  How.  G27,  15  L.  ed 
BBl;  Smith  v.  Reevea,  178  U.  S.  436,  44  L, 
ed.  1140,  20  Sup.  Ct  Rep.  B19;  Chandler  v, 
Dix,  104  U.  S.  eoe,  48  L.  ed.  1129,  24  Sup. 
Ct.  Rep.  766;  Murray  t.  Wilaon  Diitilling 
Co.  213  U.  S.  161,  63  L.  ed.  742,  29  Sup.  Ct. 
Rep.  4S8)  Wiaconeln  a  rel.  Bolena  v.  Frear, 
2S1  U.  S.  616,  68  L.  ed.  400,  34  Sup.  Ct. 
H/ep.  272. 

Hr.  Justice  McRrrnolds  delivered  the 
(pinion   of  the  court: 

Tliese  anita  grew  out  of  the  legialation 
by  which  South  Carolina  aought  to  control 
traffic  in  llquora.  Th^  Involve  cloiely  re- 
lated mattera,  were  heard  together,  and  tt 
will  be  convenient  likewiee  to  dispose  of 
them.  In  Scott  v.  Donald,  165  U.  B.  68,  41 
L.  ed.  632,  17  Sup.  Ct.  Rep.  206,  Vance  t. 
W.  A.  Vandercook  Co.  170  U.  8.  438,  42  L. 
ed.  1100,  18  Sup.  Ct.  Rep.  674,  and  Murray 
T.  Wilson  Distilling  Co.  213  U.  S.  IGl.  &3  L. 
■d.  742,  29  Sup.  Ct.  Rep.  468,  the  history 
and  general  purpoees  of  the  legislation  are 
eoDsidered. 

By  act  of  1802  the  general  aaaembly  cre- 
ated a  atate  board  of  control,  with  power 
to  supervise  the  trafHc;  also  provided  for  a 
state,  eommiaaiouer  charged  with  the  duty 
of  purehaaing  and  distributing  liquors 
throngh  local  officer*  known  as  dispensers. 
The  statute  of  1896  directed  election,  by 
the  general  aaaembly,  of  the  board  of  con- 
trtd,  and  gave  it  power  to  make  purchaaes 


and  to  appoint  a  eommiasioner  who  ahoold 
supply  local  diapenaers  selected  by  and  lu- 
der  direction  of  county  boarda.  By  tm 
amending  act  of  1900  the  board  then  ezlrt- 
ing  was  aboliahed;  a  board  of  directors  of 
the  state  dispensary  waa  created,  with  pow- 
er to  prescribe  rules  and  regulationa  to  gar- 
em  diapensaries,  [308J  both  state  and 
couu^;  and  provision  was  made  for  the 
election  of  a  dispensary  commisaioner.  TIm 
new  board  was  required  to  purchase  liqnBr 
for  lawful  use  within  the  state;  and  gmerii 
management  and  control  of  the  state  dia- 
penaary waa  intrusted  to  the  eommiasioner. 
A  legislative  committee  was  appointed  in 
1906  to  investigate  the  state  dispensary. 
In  1007  the  atatuta  of  1B96  was  repe*lcdi 
control  through  a  atata  board  waa  abolished 
and  county  boards  substituted,  clothed  with 
authority  to  purchase  "in  the  name  of  this 
state"  all  liquors  to  be  sold  within  their 
several  counties,  "Provided,  That  the  state 
shall  not  be  liable  upon  any  contract  for 
the  purchaae  thereof  beyond  actual  assHs 
of  the  dispensary  for  which  the  purchaae  ia 
made."  At  tlie  same  time  another  act  er«- 
ated  a  State  Dispensary  Commission  of  flve^ 
gave  it  control  of  all  fnnds,  aaaeta,  and 
property  other  tlian  real  estate  of  the  state 
dispensary,  required  it  to  investigate  all 
facta  concerning  outstanding  claims  against 
the  atate  dispensary,  and  thereafter  to  pay 
nil  just  liabilities  from  dispensary  aaaeta 
which  might  come  into  Ita  handa.  Thin 
■econd  act  of  1907  waa  amended  In  1006, 
utd  the  commission  given  "full  power  to 
l>asa  upon,  fix  and  detarmiue  all  elaiaw 
tgainat  the  state  growing  out  of  dealinga 
vitli  the  dispensary  1  and  to  pay  for  the 
itate  any  and  all  just  claims,  w^ieh  luTe 
jeen  submitt4^  to  and  determined  by  it, 
knd  no  other,  out  of  the  asacts  of  the  di>> 
lensary  which  have  been  or  may  hereafter 
M  collected  by  said  Dispensary  Commia- 
lion:  Provided,  Tliat  each  and  every  peraoa, 
Irm  or  corporatiao,  presenting  a  claim  or 
:Iaims  to  said  Commiasion,  shall  ha,ve  the 
ight   to   appeal   to  the  supreme  court,   •■ 

By  act  of  February  23d,  1910,  flndfngi 
if  the  State  Dispensary  Commission  were 
ieclared  to  be  final;  any  sum  ascertained 
o  be  due  the  state  waa  required  to  be  il»- 
lucted  from  whatever  a  coun^  dispenauy 
night  owe  such  debtor;  and  anthori^  wm 
iven  the  Commission  to  [909]  coaunMsd 
ny  county  dispensary  so  indebted  to  tnni 
ver  to  it  an  equivalent  amount  of  money, 
lotices  of  claims  in  favor  of  the  state,  erea- 
ion  of  liens  to  secure  the  same,  and  cb- 
arcement  of  their  payment,  were  alao 
.rovlded  for. 

«4o  V.  a 


1915^ 


CAROLINA  GLASS  CO.  v.  SOUTH  CAROUNA. 


309-311 


Number  12. 

The  hiiioiy  and  disposition  of  tliis  cause 
ia  the  state  tribunals  sufficiently  appear 
from  parts  of  tbe  opinion  by  the  supreme 
court  (87  S.  C.  270,  69  S.  E.  391)  quoted 
below: 

'The  investigations  of  the  committee 
[appointed  1905]  resulted  in  an  act,  passed 
in  1907,  authorizing  the  appointment  of  a 
commission,  to  be  known  as  the  State  Dis- 
pensary Commission,  whose  duty  it  was 
to  close  out  the  entire  business  and  proper- 
ty of  the  state  dispensary,  collect  all  debts 
due,  and  pay  'all  just  liabilities'  of  the 
state  growing  out  of  said  business.  The 
Commission  ^as  given  'full  power  and  au- 
thority to  investigate  the  past  conduct  of 
the  affairs  of  the  dispensary.'  It  was  also 
clothed  with  all  the  power  and  authority 
conferred  upon  the  committee  which  had 
been  appointed  under  the  resolution  above 
referred  to.  25  Stat.  835.  The  act  of  1907 
was  amended  in  1908  so  as  to  give  the  Com- 
mission 'full  power  to  pass  upon^  fix  and 
determine  all  claims  against  the  state  grow- 
ing out  of  dealings  with  the  dispensary; 
and  to  pay  for  the  state  any  and  all  just 
claims  which  have  been  submitted  to  and 
determined  by  it,  and  no  other.'  25  Stat. 
1289. 

"Appellant  presented  to  the  Commission 
a  claim  for  $23,013.75  as  the  balance  due 
it  by  the  state  for  bottles  and  demijohns 
furnished  to  the  dispensary  under  con- 
tracts made  with  the  board  of  directors 
from  and  including  April,  1906,  until  the 
business  was  closed  out  by  the  Commission. 
Appellant  had  also  furnished  the  dispensary 
practically  ail  the  bottles  and  demijohns 
used  since  about  December,  1902;  but  all 
accounts  prior  to  April,  1906,  had  been  set- 
tled. 

[310]  "Upon  the  filing  of  thU  claim,  the 
Commission  went  into  an  investigation  of 
all  past  dealings  of  appeUant  with  the  dis- 
pensary; and,  after  hearing  a  great  deal  of 
testimony  and  argument  thereon,  rendered 
its  decision,  dated  Nov.  17,  1909,  which 
will  be  set  out  in  the  report  of  the  case. 

"The  conclusion  and  finding  of  the  Com- 
mission was  that,  in  pursuance  of  a  con- 
spiracy between  some  of  the  directors  of 
the  dispensary  and  some  of  the  appellant's 
officers  or  agents  to  defraud  the  state, 
whereby  legitimate  competition  was  de- 
stroyed, appellant  had  a  monopoly  of  the 
business  of  furnishing  glass  to  the  dispen- 
sary from  the  date  of  its  beginning  business, 
in  1902,  until  April,  1906;  and  that  the 
prices  paid  it  for  glass  during  that  period 
exceeded  the  fair  market  value  thereof  by 
$51,432.99.  Therefore,  allowing  appellant's 
claim  of  $23,013.75,  the  Commission  found' 
60  li.  ed. 


that  appellant  was  indebted  to  the  state  in 
the  sum  of  $28,419.24,  the  difference  be- 
tween the  amount  of  its  claim  and  the  sum 
it  had  fraudulently  collected  from  the  state. 
"From  that  decision,  this  appeal  was  tak- 
en, under  the  provisions  of  the  statute, 
giving  every  claimant  the  right  of  appeaj 
to  the  supreme  court,  'as  in  cases  at  law.' 
Appellant  concedes  that  the  jurisdiction  of 
this  court  is  limited  in  such  cases  to  a 
review  of  alleged  errors  of  law. 

•  •*  •.••• 
"The  next  contention  of  appellant  is  that 

the  Commission  is  not  a  court,  but  a  spe- 
cial tribunal  of  limited  power,  and  that  it 
exceeded  its  authority  in  undertaking  to 
fix  and  determine  appellant's  liability  to 
the  state,  and  then  set  off  its  claim  against 
the  liability  so  fixed.  It  is  conceded  that 
the  Commission  is  not  a  court,  though  its 
duties  necessarily  involve,  to  some  extent, 
the  exercise  of  judicial  functions,  as  is 
always  the  case  where  judgment  and  dis- 
cretion are  to  be  exercised.  It  was  cre- 
jited  under  §  2  of  article  17  of  the  Consti- 
tution, which  provides  [311]  that  'the  gen- 
eral assembly  may  direct  by  law  in  what 
manner  claims  against  the  state  may  be 
established  and  adjusted." 

•  •...••. 
"The    question,    therefore,    whether    the 

commission  had  authority  to  entertain  a 
'set-off*  or  'counterclaim'  in  favor  of  the 
state  against  a  claimant,  in  the  technical 
sense  in  which  those  terms  are  used  in  legal 
proceedings,  is  not  germane  or  material  to 
the  present  inquiry.  To  what  purpose 
should  the  Commission  investigate,  unless 
it  announced  the  result  of  its  investigation  f 
We  see  no  error,  therefore,  in  the  Commis- 
sion stating  its  .findings  as  the  result  of 
its  investigation. 

"The  findings  of  the  Commission,  how- 
ever, are  controlling  only  in  its  determina- 
tion of  the  nonliability  of  the  state  upon 
appellant's  claim.  Ihey  have  not  the  force 
or  effect  of  a  judgment,  concluding  appel- 
lant in  any  other  proceeding, — such,  for 
instance,  as  the  state  might  institute  in 
the  proper  court  to  recover  the  amount 
found  by  the  Commission  to  be  due  it  by 
appellant. 

"The  judgment  of  this  court  is  that  the 
decision  of  the  Commission  upon  plaintiff's 
claim  against  the  state  be  affirmed." 

Manifestly,  we  think,  the  supreme  court 
affirmed  the  Commission's  action  only  in 
so  far  as  it  declined  to  approve  the  glass 
company's  claim, — there,  was  no  final  de- 
termination of  the  state's  right  to  recover 
over  against  the  company. 

Error  is  assigned  concerning  supposed 
Federal    questions    upon    the   theory   that 


Sll-314 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbbm, 


there  has  been  "in  praetical  effect  an  adju- 
dication of  the  validity  of  the  alleged  claim 
of  the  state  arising  out  of  the  ended  trans- 
actions prior  to  April,  190G,  and  a  satis- 
faction of  such  a  judgment  by  the  confis- 
cation of  plaintiff  in  error's  property;  that 
is,  its  claim  against  the  state  for  goods 
furnished  since  1906." 

[312]  This  theory  is  entirely  out  of 
harmony  with  the  supreme  court's  opinion, 
which  holds  the  validity  of  possible  demands 
against  the  glass  company  remains  wholly 
undetermined/  and  that,  acting  within  its 
plain  powers,  the  state  had  only  refused 
to  recognize  and  discharge  a  claim  against 
itself.  The  argument  of  counsel  proceeds 
upon  a  fundamental  misconception.  We 
find  Ho  error  in  the  judgment  below,  and 
it  must  be  afilrmed. 

Number  9. 

By  this  original  proceeding  begun  in  the 
supreme  court  of  South  Carolina,  March  4, 
1910,  the  Carolina  Glass  Company  sought 
to  restrain  any  effort  to  collect  the  so-called 
overjudgment  for  $28,419.24,  pronounced  by 
the  Dispensary  Commission  under  circum- 
stances narrated  supra  (cause  No.  12) ; 
and  also  to  prevent  the  Commission  from 
demanding  or  receiving  sums  of  money  al- 
leged to  be  due  the  company  from  certain 
county  dispensaries,  or  interfering  with 
payment  of  such  indebtedness. 

Quotations  from  the  opinion  below  (87 
6.  C.  270,  285)  will  adequately  disclose  the 
issues  involved. 

"These  arise  principally  out  of  an  act 
approved  Febniary  23,  1910,  and  what  was 
done  by  the  defendants  under  the  provisions 
of  that  act,  which,  it  will  be  noted,  was 
passed  subsequent  to  the  decision  of  the 
Conunission  upon  the  claim  of  the  plaintiff. 
The  provisions  of  the  first  five  sections  of 
the  act  pertinent  to  this  case  are,  in  sub- 
stance: That,  in  add^^tion  to  the  powers 
conferred  by  all  previous  acts,  the  Dispen- 
sary Commission  shall  have  po.ver  to  pass 
upon,  fix  and  determine  claims  of  the  state 
against  any  person,  firm,  or  corporation 
heretofore  doing  business  with  the  state 
dispensary,  and  settle  and  receipt  therefor; 
that  the  findings  of  the  Commission  under 
its  provisions  shall  be  final,  and,  upon  the 
finding  by  the  Commission  that  any  person, 
firm,  or  corporation  is  indebted  to  the  state, 
the  dispensary  auditor  and  officials  [313] 
having  charge  of  the  fimds  of  any  county 
dispensary  which  may  be  indebted  to  such 
person,  firm,  or  corporation,  shall  pay  to  the 
Commission  the  amount  so  found  to  be  due 
the  state,  or  so  much  thereof  as  the  funds 
in  their  hands  due  to  such  person,  firm,  or 
corporation  will  pay,  and  the  receipt  of  the 
•69 


Commission  shall  be  a  sufficient  voucher 
therefor;  that  the  Commission  may,  by  its 
order,  stop  the  paying  out  of  any  funds  of 
any  county  dispensary  by  any  officer  hav- 
ing charge  thereof.  Sections  7  and  9  of  the 
act  are  as  follows:  [They  are  copied  in 
margin.] 

''Within  a  few  days  after  the  approval 
of  the  act,  to  wit,  on  February  26,  1910,  the 
Commission,  by  its  attorneys,  filed  in  the 
office  of  the  clerk  of  the  court  for  Richland 
county,  in  which  county  plaintiff  owned 
real  estate,  a  notice,  headed  or  entitled. 
The  State  v.  Carolina  Glass  0>.,  and  signed 
by  the  attorney  general  and  other  counsel 
[314]  representing  the  state.  The  notice 
was  as  follows:  'Notice  is  hereby  given  to 
all  whom  it  may  concern,  that  the  above 
stated  cause  has  been  instituted,  and  is  now 
pending  before  the  State  Dispensary  Com- 
mission for  the  recovery  against  the  Caro- 
lina Glass  Company  of  $29,000,  the  amount 
which  has  been  found  to  be  due  from  the 
said  defendant  to  the  state  of  South  Caro- 
lina owing  to  overcharges  made  by  said 
defendant  in  selling  goods  to  the  state  dis- 
pensary, and  this  notice  is  given  in  accord- 
ance with  the  terms  of  an  act  of  the 
legislature  passed  in  February,  1910,  and 
duly  approved  by  the  govemer.'  About  the 
same  time,  notice  was  served  on  the  plain- 
tiff, pursuant  to  the  provisions  of  the  act, 
that  the  Commission  would  proceed  to  pass 

Sec.  7.  "The  State  Dispensary  Commis- 
sion is  hereby  empowered  to  pass  all  orders 
and  judgments  and  do  any  and  all  things 
necessary  to  carry  out  the  purposes  of  this 
act;  and  ail  judgments  rendered  by  them 
for  any  claim  due  the  state  shall  be  a  lien 
on  the  property  of  the  judgment  debtor 
situated  within  this  state,  and  a  transcript 
of  said  judgment  shall  be  filed  in  the  ofiice 
of  the  cleric  of  the  court  of  common  pleas 
in  each  county  where  any  property  of  such 
judgment  debtor  is  situated." 

Sec.  9.  "In  all  cases  pending  before  the 
said  State  Dispensary  Commission,  upon 
any  claim  or  claims  against  any  person  or 
persons  or  any  corporation  or  corporations 
owning  any  real  estate  in  any  county  in 
this  state,  the  said  Commission  shall  file 
in  the  office  of  the  cleric  of  court  in  each 
county  where  such  real  estate  is  situated 
a  notice  of  the  pendency  of  such  cases,  and 
the  said  notice  so  filed  shall  be  full  notice 
to  all  persons  whomsoever  olaimlng  any 
title  to  or  lien  upon  such  real  estate  ae- 

Suired  subsequent  to  the  filing  thereof,  and 
he  debt  found  by  said  Commission  to  be  due 
the  state  shall  have  priority  over  the  claims 
of  all  creditors,  except  creditors  secured  by 
mortgage  or  judgment  entered  and  recorded 
prior  to  the  filing  of  such  notice,  and  the 
said  real  estate,  in  the  hands  of  an^  person 
or  persons  whomsoever,  shall  be  liable  for 
the  payment  of  such  debt  so  found  to  be 
due  the  state." 

140  U.  B. 


1916. 


GABOLINA  GLASS  00.  ▼.  SOUTH  CABOLINA. 


814-^17 


opcm,  flZy  and  determine  the  elaim  of  the 
ftate  against  the  plaintiff  on  account  of 
the  orercharges  growing  out  of  its  dealings 
with  the  diapensary.  Notice  was  also 
senred  on  the  county  dispensary  board  of 
Riehland  county,  requiring  that  board  to 
pay  to  the  Commission  the  amount  due  by 
said  board  to  the  plaintiff. 

"Another  feature  of  the  case  grows  out 
of  an  agreement  alleged  to  have  been  made* 
between  the  attorneys  for  the  plaintiff  and 
the  attorney  representing  the  state  with 
regard  to  payments  for  shipments  of  glass 
made  by  plaintiff  to  the  county  dispensaries 
after  November  20,  1900. 

'^nder  the  provisions  of  the  Constitu- 
tion  (art.  8,  S  11)   and  sUtutes  (25  SUt. 
463)  the  county  dispensaries  are  conducted 
'under  the  authority  and  in  the  name  of 
the  state.'    Therefore,  the  officers  in  charge 
«f  them  are  agents  of  the  state  and  the 
funds    arising    from    the    sale    of    liquors 
through  them  are  the  funds  of  the  state, 
and  the  debts  due  for  goods  sold  to  them 
are  the  debts  of  the  state.     In  exercising 
the  powers  conferred  upon  it  by  the  legis- 
lature, the  Dispensary  Commission  is  also 
the  agent  and  representative  of  the  state, 
'subject  to  no  interference,    [315]    except 
that  of  the  general  assembly  itself,'  and  a 
suit  brought  against  it  is,  in  effect,  a  suit 
against  the  state.     State  ex  reL  Lyon  v. 
£N[ate  Dispensary  Commission,  79  S.  C.  316, 
329,  60  S.  E.  928.    As  the  state  cannot  be 
sued  without  its  consent,  no  court  has  pow- 
er to  interfere  with  or  direct  the  disposition 
of  the  state's  funds  in  the  hands  of  its 
agents,  unless  it  appears  that  they  are  act- 
ing without  authority  of  law,  or  are  refus- 
ing to  recognize  and  obey  the  law  to  the 
detriment  of  private  rights.    .    .    .    In  or- 
dering the  funds  in  the  hands  of  the  officers 
of  the  county  dispensaries  due  to  the  plain- 
tiff turned  over  to  itself,  the  commission 
acted  within   the   limits   of   its   authority 
and   discretion   conferred   upon    it   by   the 
legislature,  and  this  court  has  no  power  to 
interfere.     From  the  foregoing,  it  will  be 
<seen  that  it  is  unnecessary  to  inquire  or  de- 
cide   whether    there    was    an    agreement 
between  the  attorneys  for  plaintiff  and  the 
attorneys  for  the  state  as  to  the  collection 
-«f  the  amounts  due  plaintiff  from  the  coun- 
ty dispensaries  for  shipments  made  prior 
^  November  20th,  or  what  the  agreement 
was,  or  whether  it  has  been  violated.     The 
Dispensary  Commission  is  the  sole  arbiter 
-of  the  rights  of  the  plaintiff,  if  it  has  any, 
with  regard  to  that  matter. 
■•....... 

"So  long,  therefore,  as  the  action  of  the 
Oommission  was  confined  to  the  investiga- 
tion  of  all  dealings,  past  and  present,  with 
40  Ii«  ed. 


the  dispensary,  and  tiie  determination  of 
the  just  liabilities  of  the  state  gro¥ring  out 
of  them,  it  was,  as  we  have  seen,  based  upon 
constitutional  authority,  and  was  valid  and 
bindinir.  But  we  find  no  authority  in  the 
Constitution  for  the  legislature  to  provide 
by  law  how  claims  of  the  state  against  oth- 
ers shall  be  established  or  adjusted,  except 
through  the  courts.  We  conclude,  therefore, 
that  in  so  far  as  the  act  of  1910  attempts 
to  confer  upon  the  Commission  power  to 
pass  final  judgment  upon  the  claim  of  the 
state  against  the  plaintiff,  it  is  unconstitu- 
tional, [316]  null,  and  void.  And,  as  the 
lien  which  the  act  attempts  to  create  is 
based  upon  the  unauthorised  act  of  the  Com- 
mission, it  is  likewise  null  and  void." 

Defendants  were  accordingly  enjoined 
from  asserting  a  lien  upon  the  company's 
property,  and  the  notice  filed  in  Richland 
county  was  directed  to  be  canceled;  but 
the  Commission's  power  to  remove  funds 
from  oounty  dispensaries  was  upheld. 

Plaintiff  in  error  now  maintains  the  so- 
called  over  judgment  of  November  17,  1909, 
was  void;  that  by  reason  of  claims  against 
them  it  had  contract  and  property  rights  in 
money  held  by  the  county  dispensaries;  and 
that  removal  of  funds  therefrom  by  the 
State  Dispensary  Commission  impaired 
contract  obligations  in  violation  of  g  10, 
article  1,  Federal  Constitution,  and  de- 
prived it  of  property  without  due  process  of 
law. 

It  was  distinctly  adjudged  by  the  su- 
preme court  that  the  Dispensary  Commis- 
sion was  without  power  to  pronounce  the 
over  judgment;  that  it  was  invalid  and 
could  not  be  enforced.  In  view  of  repeated 
holdings  by  that  court  and  our  opinion  in 
Murray  ▼.  Wilson  Distilling  Co.  213  U.  S. 
151,  53  L.  ed.  742,  29  Sup.  Ct  Rep.  458,  it 
is  clear  that  funds  of  county  dispensaries 
were  state  funds,  and,  as  such,  subject  to 
control  by  the  Dispensary  Commission. 
Their  removal,  therefore,  violated  no  right 
which  the  glass  company  could  assert,— 
the  state  had  not  consented  to  be  sued. 
The  judgment  of  the  court  below  must  be 
affirmed. 

Number  206. 

The  Carolina  Glass  Company  instituted 
this  proceeding  at  law  in  the  United  States 
district  court,  South  Carolina,  December  13, 
1911,  to  recover  judgment  against  individu- 
al members  of  the  Dispensary  Conmiissioa 
for  sums  of  money  said  to  have  been  un- 
lawfully withdrawn  by  them  from  county 
dispensaries  which  held  the  same  for  plain- 
tiff's benefit.  It  is  alleged  that  for  sup- 
plies furnished  partly  before  [317]  and 
partly  after  February  23, 1910,  these  oounty 


317-319 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct. 


dispensarietf  became  lawfully  indebted  to  the 
company  for  more  than  $19,000,  and  that 
the  money  in  their  keeping  was  held  in 
trust  to  pay  ■uch  sum,  and  further: 

"That  the  said  defendants,  undertaking 
to  proceed  under  §  6  of  the  act  entitled, 
'An  Act  to  Further  Provide  for  Winding  up 
the  Affairs  of  the  State  Dispensary,'  ap- 
proved the  23d  day  of  February,  1910 
[copied  in  margin],  as  this  plaintiff  is  in- 
formed and  believes,  demanded  from  the 
county  dispensary  boards  for  the  county  of 
Clarendon,  the  county  of  Richmond,  and  the 
county  of  Georgetown,  the  sums  of  money 
alleged  in  paragraph  six  of  this  complaint, 
amounting  in  the  aggregate  to  the  sum  of 
nineteen  thousand  and  eighty-four  and 
38/100  dollars  then  due  to  this  plaintiff  by 
said  several  county  dispensary  boards,  as  al- 
leged in  said  paragraph  six,  and  unlawfully 
and  wrongfully  received  the  said  sums  of 
money  from  said  several  county  dispensary 
boards,  claiming  that  they  were  entitled  to 
the  same  on  account  of  the  above-mentioned 
illegal  offset  found  by  said  State  Dis- 
pensary Commission  to  be  due  by  this  plain- 
tiff as  aforesaid;  which  action  this  plaintiff 
alleges  was  wholly  without  authority  of 
law,  as  the  provisions  of  said  §  6  of  the 
act  of  February  23d,  1910,  were  unconstitu- 
tional, null,  and  void,  as  constituting  an  ef- 
fort, unwarrantably  and  without  authority, 
to  confiscate  the  property  of  this  plaintiff 
without  due  process  of  law,  the  provisions 
of  said  section  being  [318]  in  violation  of  § 
10  of  article  1  of  the  Constitution  of  the 
United  States,  and  also  of  the  14th  Amend- 
ment to  the  Constitution  of  the  United 
States ;  and,  furthermore,  in  violation  of  the 
express  contract  and  agreement  entered  into 
by  this  plaintiff  with  the  defendants  above 
named  as  above  alleged." 

Holding  it  in  effect  a  suit  against  the 
state,  the  district  court  dismissed  the  cause 
(197  Fed.  392) ;  and  it  is  here  upon  direct 
writ  of  error.  We  are  of  opinion  that  the 
action  of  the  court  below  was  correct. 
And  in  view  of  what  has  been  said  above 
and  our  opinion  in  Murray  v.  Wilson  Dis- 
tilling Co.  further  discussion  of  the  ques- 

Sec.  6.  "In  any  and  all  cases  where  the 
State  Dispensary  Commission  has  hereto- 
fore founa  any  amount  due  the  state  by 
any  person,  firm  or  corporation  on  account 
of  dealings  with  the  state  dispensary,  the 
several  county  dispensary  boards  now  exist- 
ing, and  all  boards  and  other  officer  or  of- 
ficers in  charge  of  any  money  due  any  such 
person,  firm  or  corporation  on  account  of 
any  dealings  with  any  and  all  county  dis- 
pensaries heretofore  existinff,  shall,  upon 
demand,  pay  to  the  State  Dispensary  Com- 
mission a  sufficient  amount,  or  so  much 
thereof  as  may  be  on  hand,  to  eover  the 
amount  to  found  to  ba  due  the  atata." 
664 


tions  involved  would  not  be  profitable.    The 
judgment  is  affirmed. 

Number  204. 

This  writ  brings  up  a  judgment  rendered 
by  the  circuit  court  of  appeals,  fourth 
circuit,  affirming  the  same  final  judgment 
of  the  district  court  considered  in  No.  205, 
supra.  124  C.  C.  A.  423,  206  Fed.  636. 
There  is  no  allegation  of  diverse  citisenahip, 
and  the  trial  court's  jurisdiction  was  in- 
voked solely  upon  the  ground  that  the  con- 
troversy involved  application  of  the  Federal 
Constitution. 

In  such  circumstances  the  Circuit  Court 
of  Appeals  is  without  jurisdiction  to  re- 
view. Union  ft  P.  Bank  t.  Memphis,  189 
U.  S.  71,  73,  47  L.  ed.  712,  713,  23  Sup.  Ct. 
Rep.  604.  Its  judgment  is  accordingly 
reversed  and  the  cause  remanded,  with 
directions  to  dismiss  the  writ  of  error  im- 
properly entertained. 

Judgments  in  Nos.  12,  9,  and  205,  af- 
firmed; judgment  in  No.  204  reversed  and 
remanded  to  the  Circuit  Court  of  Appeals 
for  the  Fourth  Circuit,  with  directions  to 
dismiss  writ  of  error  for  want  of  juris- 
diction. 


[319]  FIDELITY  ft  DEPOSIT  COMPANY 
OF  MARYLAND,  Plff.  in  Err., 

V. 

COMMONWEALTH  OF  PENNSYLVANDL 

(See  S.  C.  Reporter's  ed.  319-324.) 

Taxation  —  Federal  agency  —  foreign 
surety  company. 

A  surety  company  does  not,  by  be* 
coming,  conformably  to  the  act  of  August 
13,  1894  (28  Stat,  at  L.  279,  chap.  282, 
Comp.  Stat.  1913,  §  3293),  surety  on  bonds 
required  by  the  United  States,  act  as  a 
Federal  instrumentality  so  as  to  be  exempt 
from  a  state  tax  on  the  premiums  received, 
exacted  from  foreign  corporations  for  the 
privilege  of  doing  business  within  the  state. 
[For  other  cases,  see  Taxes,  1.  c,  2,  a;  I.  c  8» 
a,  in  Digest  Sap.  Ct.  1908.] 

[No.  114.] 

Argued   January    6,    1916.     Decided   F^ 
ruary  21,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Pennsylvania  to  review  a  judg- 
ment which  affirmed  a  judgment  of  the 
Court  of  Conuncm  Pleas  of  Dauphin  Coun- 
ty, in  that  state,  enforcing  a  tax  upon  the 
premiums  received  by  a  foreign  surety  oom« 
pany  upon  bonds  required  by  the  United 
States.    AiBrmed. 

S40  17.  8. 


1916. 


FIDSLTTY  k  DEPOSIT  CO.  t.  PENNSYLVANIA. 


See  lanie  case  below,  M4  Pa.  67,  00  AH. 
437. 
The  facts  are  stated  in  the  opinkm. 

Mr.  Oharlea  Markell  argued  the  cause, 
and,  with  Mr.  Charles  F.  Patterson,  filed 
a  brief  for  plaintiff  in  error: 

This  tax  is  an  occupation  or  pririlege  tax 
on  the  privilege  of  carrying  on  business  un* 
der  the  act  of  Congress;  it  is  not  a  property 
tax  on  property  (tangible  or  intangible)  of 
the  defendant. 

Equitable  Life  Assur.  Soc.  t.  Pennsyl- 
Tania,  238  U.  8. 143,  69  L.  ed.  1239,  36  Sup. 
Ct.  Rep.  829;  Com.  t.  Standard  Oil  Co.  101 
Pa.  146 ;  Choctaw,  O.  4  O.  R.  Co.  t.  Harri- 
son, 236  U.  S.  292,  299,  69  U  ed.  234,  237, 
35  Sup.  Ct.  Rep.  27. 

Nor  is  it,  either  in  name  or  in  fact,  a 
commutation  tax  or  just  equivalent  for  the 
ordinary  tax  upon  projierty,  ascertained  by 
reference  thereto. 

Equitable  Life  Assur.  Soc.  t.  Pennsyl- 
Tania,  238  U.  S.  143,  69  L.  ed.  1239,  36  Sup. 
Ct.  Rep.  829,,PhiladelphU  k  S.  Mail  S.  S. 
Co.  V.  Pennsylvania,  122  U.  S.  326,  30  L. 
ed.  1200,  1  Inters.  Com.  Rep.  308,  7  Sup. 
Ct.  Rep.  1118;  Western  U.  Teleg.  Co.  v. 
Pennsylvania,  128  U.  S.  39,  32  L.  ed.  346, 
2  Inters.  Com.  Rep.  241,  9  Sup.  Ct.  Rep. 
6;  Galveston,  H.  ds  S.  A.  R.  Co.  ▼.  Texas, 
210  U.  S.  217,  224,  226,  62  L.  ed.  1031,  1036, 
1037,  28  Sup.  Ct.  Rep.  638;  Meyer  ▼.  Wells, 
F.  k  Co.  223  U.  S.  298,  300,  301,  56  L.  ed. 
445,  447,  448,  32  Sup.  Ct.  Rep.  218;  West- 
em  U.  Teleg.  Co.  v.  Texas,  106  U.  S.  460, 
26  L.  ed.  1067;  Choctaw,  O.  k  O.  R.  Co.  v. 
Harrison,  236  U.  S.  292,  69  L.  ed.  234,  36 
Sup.  Ct.  Rep.  27;  Postal  Teleg.  Cable  Co. 
V.  Adams,  166  U.  S.  688,  696,  697,  39  L.  ed. 
311,  316,  316,  6  Inters.  Com.  Rep.  1,  16  Sup. 
Ct  Rep.  268,  360;  United  SUtes  Exp.  Co. 
V.  Minnesota,  223  U.  S.  336,  346,  347,  66  L. 
ed.  469,  466,  466,  32  Sup.  Ct.  Rep.  211; 
Maine  t.  Grand  Trunk  R.  Co.  142  U.  S.  217, 
.35  L.  ed.  994,  3  Inters.  Com.  Rep.  121,  163, 
12  Sup.  Ct  Rep.  807;  Galveston,  H.  A  S.  A. 
R.  Co.  V.  Texas,  210  U.  S.  217,  226,  62  L. 
ed.  1031,  1037,  28  Sup.  Ct.  Rep.  638;  Baltic 
Min.  Co.  T.  Massachusetts,  231  U.  S.  68,  83, 
68  L.  ed.  127, 183,  LJt Jk.  — ,  — ,  34  Sup.  Ct. 
Rep.  16;  Fargo  t.  Hart,  198  U.  S.  490,  48 
L.  ed.  761,  24  Sup.  Ct  Rep.  498. 

The  state  of  Pennsylvania  has  for  many 
years  been  accustomed  to  taxing  occupa- 
tions, even  of  individuals,  in  addition  to 
property. 

Continuously  since  1864,  the  state  of 
Pennsylrania  has  imposed  a  number  of  spe- 
cial occupation  or  priyilege  taxes  on  the 
boslneas  of  Tarious  corporations,  domestic  or 
foreign.  Moat  of  these  oceupation  or  privi- 
lege taxes  have  been  impoaed  in  addition  to 
ordinary  property  taauition.  One,  at  least, 
•6  Ii.  ed. 


was  imposed  expressly  upo»  the  business  of 
foreign  corporations  beyond  the  reach  of 
ordinary  property  taxation.  None  have  been 
imposed  as  an  equivalent  for  ordinary  prop- 
erty taxation,  or  have  (except  the  extra  cap- 
ital stock  tax  on  transportation  companies 
under  the  act  of  1874,  repealed  in  1877) 
been  ascertained  or  measured  with  any  ref- 
erence whatever  to  the  taxable  property  of 
the  corporation  taxed.        • 

Three  of  these  occupation  or  privilege 
taxes  on  the  business  of  certain  corpora- 
tions have  been  held  unconstitutional  by  this 
court  when  applied  to  the  Federal  business 
of  interstate  commerce  (State  Freight  Tax 
Case,  16  Wall  232,  271,  21  L.  ed.  146,  160; 
Philadelphia  k  S.  Mail  S.  S.  Co.  v.  Pennsyl- 
Tania,  122  U.  S.  826,  30  L.  ed.  1200, 1  Inters. 
Com.  Rep.  308,  7  Sup.  Ct.  Rep.  1118;  West- 
em  U.  Teleg.  Co.  v.  Pennsylvania,  128  U.  S. 
39,  82  L.  ed.  846,  2  Inters.  Com.  Rep.  241,  9 
Sup.  Ct  Rep.  6;  Norfolk  A  W.  R.  Co.  v. 
Pennsylvania,  136  U.  S.  114,  34  L.  ed.  394, 
3  Inters.  Com.  Rep.  178,  10  Sup.  Ct  Rep. 
968),  and  an  occupation  tax  on  an  individ- 
ual in  the  employ  of  the  Federal  government 
has  been  similarly  stricken  down. 

Dobbins  t.  Erie  County,  16  Pet.  436,  10 
L.  ed.  1022. 

The  business  of  foreign  insurance  com- 
panies is  now  subject  to  the  occupation  oi 
privilege  tax  of  2  per  cent  on  gross  pre- 
miums. The  property  of  foreign  insurance 
companies  (if  they  had  any  in  Pennsyl- 
vania) is  nominally  ^empt  from  the  tax 
on  capital  stock,  and  nominally  subject  to 
the  tax  on  property  (i.  e.,  mortgages,  bonds, 
securities,  etc.).  Actually  foreign  insur- 
ance companies  have  normally  no  property 
with  its  situs  in  Pennsylvania,  which  could 
be  taxed  either  as  property  eo  nominey  or 
as  constituting  capital  stock.  The  Penn- 
sylvania tax  on  capital  stock  is  a  tax  on 
the  property  and  assets  of  the  corporation 
(Delaware,  L.  &  W.  R.  0>.  v.  Pennsylvania, 
198  U.  S.  341,  353,  49  L.  ed.  1077,  1081,  26 
Sup.  Ct.  Rep.  669,  citing  Com.  v.  Standard 
Oil  Co.  101  Pa.  145,  and  Ck>m.  v.  Delaware, 
S.  k  S.  R.  Co.  166  Pa.  44,  80  Atl.  622,  623), 
including  both  tangible  and  intangible 
property,  the  franchises  as  well  as  other 
property  of  the  company  (Com.  v.  Dela- 
ware, S.  A  S.  R.  Co.  supra),  but  not  includ- 
ing any  property  having  its  situs  outside 
of  the  state  of  Pennsylvania  (Delaware,  L. 
A  W.  R.  Ck>.  V.  Pennsylvania;  198  U.  S. 
341,  49  L.  ed.  1077,  26  Sup.  Ct.  Rep.  669; 
Com.  T.  Standard  Oil  Ca  101  Pa.  119). 
The  settled  construction  of  Pennsylvania 
taxing  statutes  is  that  all  such  intangible 
personal  property  of  a  foreign  corporation 
as  investments  in  bonds  or  stocks— even 
stock  in  Pennsylvania  corporations  (Com. 
T.  Standard  Oil  Co.  101  Pa.  146),  or  de- 

666 


BUPHEUE  CODRT  OP  THE  UNITED  STATES.              Oor.  Ttaat, 

poalt    tmoaaata    with    Fcniuy W^nia  '  bank*,  737;    Horn   Silvn  Hln.   Co.  r.  Ncir  York, 

uied  In  the  oonduet  of  buiaeu  in  Pennsyl-  143  U.  B.  306,  314,  316,  38  L.  «d.  lU,  ISS, 

Tuiia,  or  Mcnritlei  phTaieall;  kept  In  sftfe  4  Inters.  Com.  Rep.  67,  12  Bnp.  Ct.  Rep. 

depoalt   Tftulti   In   PenniylTknla    (Com.   t.  403;   Hooper  t.  CaUfomU,  166  U.  S.  64S, 

CuTtid  Pub.  Co.  EST  P».  335,  85  AtL  360)—  052,  30  U  ed.  297,  298,  6  Inter*.  Com.  Rep. 

hM  ita  aitna  at  the  domicil  of  the  corpora-  610,    15    Bup.    Ct.    Sep.   207;    Postal  Teleg. 

tion,     and     ia    therefore    not    taxable     in  Cable  Co.  t.  Adami,  165  U.  8.  SSS,  696,  39 

Feonaylvania.  L.  ed.  311,  315,  6  Inters.  Com.  Rep.  1,   15 

This  tu  cannot  be  maUined  as  within  Sup.  Ct.  Rep.  268,  330;  Weatem  U.  Teleg. 

the  latitude  allowed  a  sUte  in   Bxing  the  Co.  v.  EansM,  216  U.  8.  I,  27,  S4  L.  ed.  355, 

measnre  ol  a  tax  on  non-Federal  busineas.  366,  30  Sup.  Ct.  Rep.  ISO;   Pullman  Co.  v. 

Western    U.    Teleg.    Co.    v.    Kansas,    £16  Kansas,  216  U.  S.  66,  6S,  71,  64  L.  sd.  378, 

I    U.  S.  1,  64  L.  ed.  3S9,  30  Sup.  Ct.  Rep.  190;  38S,  387,  30  Sup.  Ct.  Rep.  832. 

Galveston,  H.  ft  S.  A,  R  Co.  v.  Texas,  210  „       wiiii.™    m     H.»«t    .*«..!    t-h. 

U,  S.  217,  227,  62  L  «i.  1031.  1037.  28  Sup.  "''  ^""'^  j^'  ^^L"^f„^ 

fH    Tj—    a«o,   rn.~.t..    n    t  n    v    r^    I  cause,  and,  with  Mr.  Francis  Bhnnk  Brown, 

Bup.  Ct.  Kep.  2T.                             ,  .,          ,  This  tax  is  imposed  by  the  sUte  of  P«nn- 

A  tax  on  the  occunation  or  nriTileffe  oi  ,       .               ... 

.a  uu  uii  ^uc  u«.u|»i.<uu  ui    p.,  .«»=  ajWania  upon  foreign  insurance  companiM 

earrTins  on  busuess  under  the  act  of  Con-  '    ,,  _  ,,  '.  ^^    .  "_      ,,, ._   ,,         '._     , 

■>'"»,                          1.     J     i     11.     wi  I..J  <"•    ""   bUBlnea*  done   within   the   statv   of 

gress,  vu.,   executing  bonds  to  the  United  penngyiy^ni. 

States  govemmcnt,  required  }^  tiie  laws  of  ~^  '       ,     j 

the  United  States,   is  a  Ux  on  a  Federal  rZ^^i!,iTL 

ta.i™»»t.hly  .eling_™der_congre»io™i  ^^  „  JJ,  7g7,  238  U.  B.  I4S,  6«  I.  «l 
123Q,  36  Sup.  Ct.  Rep.  S2«i  Hooper  t. 
CkUfarnU,  1S6  U.  8.  MS,  30  L.  «L  297,  6 


0«rmuiU  L.  Ina.  Co.  t.  C<».  85  Pa.  fill; 
Com.  T.  EquiUble  Ufe  Auur.  Soc  S 


MinnoMU,  232  U.  S.  616,  621,  622,  6: 

;■  2".'..    ;S  S  «        S    .        iA    i  »S  1  I'l—    Co.    Hop.  784,  1!  All.  277; 

r  "^lofSi    ,;,J     ^f,V       "•'■'«■/»"■  T.;™.  ..  T,.«ll.r.'  I...  &>.  80   P..  28^ 

?      :,.     ^'J     V,  ^'  .V  I"  MliKorl,  190  O.  S.  412,  47  L.  «L  UW,  SS 

Rep.  118:  Wertern  U.  Teleg.  Co.  r.  Texae,  _        r,    r„   ijn 

105  n.  S.  480,  28  U  ed.  1087;  Choel.w,  O.  ^"t^'-.^Sj,^  .„„   I.  »„.    o™™.i™ 
t  O.  «.  Co.  ..  H.rrl«,o.  236  U.  S.  202,  69        ?'    P""""'    '",  T"   '.'  "'*.   •■"""^ 

L.  .a.  234,  3S  Sup.  CI.  i.p.  27;  Ao.br<ilol  ■»<!«'   ■tM;"'  >™el»"   wh.tr,.T,   1.. 

MSup.  Ct.  R^.  1   12  to.  Crim.  Kep.  JM;  "J       ^         P.  R.  Co!  » 

SS^V  S  -k"^'?'.        ^'  ti  K 1,  "•"■  "«■"  I-  -i  '«;  ""-  ""■  i^  <=°-  '- 

So^J.        !i   =       ;,l    r^tJ"        J  ■  ■  P  R.  Co.  r.  OlUorolt  182  U.  8.  «i,  40 
810,  30  Sup.  Ct.  Hep.  179;  Dobbine  e.  Erie  „        ~^  ^         . 

r«,.l,    1«  PI.  ask    446    10  T.   -1    1022.  '■■^  »°3'  "  Sup    Ct   Rep.  78S. 


Count;,  16  Pet.  436,  446,   10  L.  ed.  1022, 
1020;   MiMourl  P.  R.  Co.  t.  I^rabee,  234 


The  penalealon  to  do  bueineoe,  giTen  by — 

0.  8.  46.,  66  L.  ed.  1308,  3.  Sup,  Ct.  Rep.  J»  jj,  jj^^'    "-    "'    ~""'°'-    '" 
;"i,^,'if '',:«"°"S''i"  ".Vl-   r':,2        Wra.„"     Slledegu,  226  U.  8.  404,  67   ' 

i;  f  S'rf  f'n  ?•      "i,  -.L  S".  I>   «1.  '".   "    8"P.    cT  Hep.   116;    PoitlO- 

IS    2i  Sou    C.    Ref  m  ••^.  "  >-  "■  '".  '  """■■  C--  «^-  "'- 

620^27  Sop.  CI.  Rep   381  74  Sup.  Ct  Rep.  1004;   Weelen.  D.  Tele«. 

The  ngbt  ol  the  .1.1.  to  ^elude  loreign  Jjiieeourl,   IM  U.  S.  412.  47  iSlL 

eorpor.tta.,    or    to    ore.eelbe    lem.    .»d  3„     „_^„   „_ 

eondition.  lor   their   .dmlB.ioD   within   ill  ^  ,   '    „        '^„.  .  _      T  „..  „    -    ,„„    _. 

bordars,  doe.  not  include  power  to  prohibit,  Teleg.  Co    v^  R«>hmond,  224  V;  S-  160.  » 

or   ImpU    term,   or    condition,    u^n,    the  ^  '^-  "C  32  Sup    O^  Rep.  M9;   Wiggfaa.- 

tranasX.  by  foreign  corporations  of  Fed-  ^erry  Co.  y.  East  St.  I->uis,  107  U.  8.  «5, 

•r.I  bBsines.  within  the  rtate.  2^  L  «d.  418.  2  Sup.  Ct  Hep.  267. 

Stockton   w.  Balttmore  ft  N.   T.   R.   Co.       While    Congreas    might    have    azempted 

llntara.Com.Rep.  Ml,  Sa  Fed.  14;  Pembina  'rom    taxation    any    premiunia    on    bonda 

Consol.  Silrer  Mln.  ft  Mill.  Co.  t.  Pannsyl-  which    run    to    the    United    BtatM    goTem- 

Vftnia,  126  U.  S.  181,  180,  31  L.  ed.  690,  ment,  it  did  not  do  so. 
«62,  e  iDtari.  Com.  Rq).  £4,  8  Bnp.  Ct.  Rep.       dtisMw*  Bank  v.  F»i1car,  192  U.  8.  73,  *» 
##•  140  U.  8. 


1915. 


FIDELITY  k  DEPOSIT  CO.  t.  PENNSYLVANIA. 


820,  321 


L.  e<L  346,  24  Sup.  Ct.  Rep.  181;  Reftgan  t. 
MercantUe  Trust  Ck>.  154  U.  S.  413,  38 
Lw  ed.  1028,  4  Inters.  Com.  Rep.  575,  14 
Sup.  Ct  Rep.  1060. 

The  plaintiff  in  error  is  not  acting  as  a 
Federal  agent,  or  using  any  government  in- 
atrumentality,  in  becoming  surety  upon  the 
bonds  upon  which  the  tax  is  sought  to  be 
imposed. 

37  Cyc.  878,  and  notes;  12  Am.  k  Eng. 
Bne.  Law,  2d  ed.  367,  and  notes;  Baltimore 
Shipbuilding  k  Dry  Dock  Co.  ▼.  Baltimore, 
195  U.  S.  375,  49  L.  ed.  242,  25  Sup.  Ct. 
Rep.  50;  United  States  t.  Moses,  107  C.  C. 
A.  310,  185  Fed.  90;  Union  P.  R.  Co.  ▼. 
Penist^  18  WalL  5,  21  L.  ed.  787;  Van 
Brocklin  t.  Tennessee  (Van  Brocklin  ▼. 
Anderson  (117  U.  S.  151,  29  L.  ed.  845,  6 
Sop.  Ct.  Rq>.  670;  Flint  v.  Stone  Tracy  0>. 
220  U.  S.  107,  55  L.  ed.  389,  31  Sup.  Ct 
Rep.  342,  Ann.  <^as.  1912B,  1312;  Western 
U.  Teleg.  Co.  ▼.  Richmond,  26  Oratt.  1; 
Thomson  y.  Union  P.  R.  Co.  9  Wall.  579,  19 
L.  ed.  792;  Ratterman  ▼.  Western  U.  Teleg. 
Co.  127  U.  S.  411,  32  L.  ed.  229,  2  Inters. 
Com.  Rep.  59,  8  Sup.  Ct.  Rep.  1127;  Atty. 
Gen.  V.  Western  U.  Teleg.  Co.  141  U.  S.  40, 
35  L.  ed.  628,  11  Sup.  Ct.  Rep.  889;  West- 
em  U.  Teleg.  Co.  ▼.  Atty.  Gen.  125  U.  S. 
530,  31  L.  ed.  790,  8  Sup.  Ct  Rep.  961; 
Western  U.  Teleg.  Co.  y.  Missouri,  190  U. 
S.  412,  47  L.  ed.  1116,  23  Sup.  Ct.  Rep.  730; 
Western  U.  Teleg.  Co.  v.  Trapp,  108  C.  C. 
A.  226,  186  Fed.  114;  Society  for  Savings 
y.  Coite,  6  Wall.  594,  18  L.  ed.  897 ;  SwarU 
V.  Hammer,  194  U.  S.  441,  48  L.  ed.  1060, 
24  Sup.  Ct.  Rep.  695;  Thompson  y.  Ken- 
tucky, 209  U.  S.  340,  52  L.  ed.  822,  28  Sup. 
Ct  Rep.  533;  Henderson  Bridge  Co.  v. 
Henderson,  173  U.  S.  592,  43  L.  ed.  823, 
19  Sup.  Ct.  Rep.  553;  Henderson  Bridge  Co. 
y.  Henderson,  141  U.  S.  679,  35  L.  ed.  900, 
12  Sup.  Ct  Rep.  114;  23  Ops.  Atty.  Gen. 
421. 

Immunity  from  taxation  by  a  state  is 
granted  to  a  Federal  agent  only  upon  the 
theory  that  such  taxation  may  interfere 
with  the  usefulness  or  efficiency  of  the 
agent  in  serving  the  Federal  government. 

First  Nat.  Bank  y.  Kentucky,  9  Wall. 
353,  19  L.  ed.  701;  M'Culloch  v.  Maryland, 
4  Wheat  316,  4  L.  ed.  579;  Union  P.  R. 
Co.  y.  Penistcm,  18  Wall.  5,  21  L.  ed.  787; 
Reagan  y.  Mercantile  Trust  Co.  154  U.  S. 
413,  38  L.  ed.  1028,  4  Inters.  Com.  Rep.  575, 
14  Sup.  Ct  Rep.  1060;  Western  U.  Teleg. 
Co.  y.  Atty.  Gen.  125  U.  S.  530,  31  L.  ed. 
790,  8  Sup.  Ct.  Rep.  961. 

[820]  Mr.  Justice  McReynolda  deliv- 
ered the  opinion  of  the  eourt: 

We  are  asked  to  reverse  a  judgment  of 
the  supreme  court  of  Pennsylvania  which 
denied  plaintiff  in  error's   claim   that,   in 
60  Ii.  ed. 


becoming  surety  upon  bonds  required  by 
the  United  States,  it  acted  as  a  Federal  in- 
strumentality, and  was  not  subject  to  tax- 
ation on  the  premiums  received.  244  Pa. 
67,  90  Atl.  437. 

Incorporated  under  the  laws  of  Maryland, 
the  Fidelity  k  Deposit  Company  is  em- 
powered by  its  charter  to  act  as  surety.  It 
was  duty  licensed  to  transact  business  in 
Pennsylvania.  In  pursuance  of  the  act  of 
Congress  referred  to  below,  the  Attorney 
General  granted  it  authority  to  enter  into 
obligations  required  by  laws  of  the  United 
SUtes. 

Contracting  within  Pennsylvania,  the 
company  became  surety,  during  1909,  on 
bonds  in  the  following  matters:  'Internal 
Revenue,  customs.  United  States  govern- 
ment officials.  United  States  government 
contracts  and  banks  for  United  States  de- 
posits, bonds  given  in  courts  of  the  United 
States  in  litigation  there  pending."  Gross 
premiums  thereon  amounting  to  $17,646.86 
were  collected.  Within  the  same  period  it 
also  became  party  to  other  bonds  and  re- 
ceived therefor  $198,199.19.  The  state  de- 
manded 2  per  centum  of  such  total  receipts, 
basing  its  claim  on  the  proviso  in  §  1,  act 
of  Assembly,  June  28,  1895,  P.  L.  408, 
which  declares:  'That  hereafter  the  annual 
tax  upon  premiums  of  insurance  companies 
of  other  states  or  foreign  governments  shall 
be  at  the  rate  of  2  per  centum  upon  the 
gross  premiums  of  every  character  and  de- 
scription received  from  business  done  within 
this  commonwealth  within  the  entire  calen- 
dar year  preceding."  The  amount  demand- 
ed because  of  premiums  on  bonds  not 
authorized  or  required  by  the  United  States 
was  paid;  but  liability  for  $352.92,  assessed 
in  respect  of  those  so  authorised,  [321] 
was  denied,  and  to  enforce  it  the  present 
suit  was  instituted  in  the  common  pleas 
court,  Dauphin  county. 

The  act  of  Congress  entitled,  "An  Act 
Relative  to  Recognizances,  Stipulations, 
Bonds,  and  Undertakings,  and  to  Allow 
Certain  Corporations  to  be  Accepted  as 
Surety  Thereon,"  approved  August  13, 
1894  (chap.  282,  28  Stat,  at  L.  279,  Comp. 
Stat.  1913,  §  3293),  provided: 

Sec.  1.  "That  whenever  any  recognizance, 
stipulation,  bond  or  undertaking  condi- 
tioned for  the  faithful  performance  of  any 
duty,  or  for  doing  or  refraining  from  doing 
anything  in  such  recognizance,  stipulation, 
bond,  or  undertaking  specified,  is  by  the 
laws  of  the  United  States  required  or  per- 
mitted to  be  given  with  one  surety  or  with 
two  or  more  sureties,  the  execution  of  the 
same  or  the  guarantying  of  the  perform- 
ance of  the  condition  thereof  shall  be  suf- 
ficient when  executed  or  guaranteed  sole- 
ly   by   a   corporation    incorporated   under 


821-324 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct. 


the  laws  of  the  United  States,  or  of  any 
Btate  having  power  to  guarantee  the  fidel- 
ity of  persons  holding  positions  of  public 
or  private  trust,  and  to  execute  and  guar- 
antee bonds  and  undertakings  in  judicial 
proceedings:  Provided,  That  such  recog- 
nizance, stipulation,  bond,  or  undertaking 
be  approved  by  the  head  of  department, 
court,  judge,  officer,  board,  or  body  execu- 
tive, legislative,  or  judicial  required  to  ap- 
prove or  accept  the  same.  But  no  officer 
or  person  having  the  approval  of  any  bond 
shall  exact  that  it  shall  be  furnished  by  a 
guarantee  company  or  by  any  particular 
guarantee  company." 

Sec.  2,  that  "no  such  company  shall  do 
business  under  the  provisions  of  this  act  be- 
yond the  limits  of  the  state  or  territory 
under  whose  laws  it  was  incorporated  and 
in  which  its  principal  office  is  located 
.  .  .  until  it  shall,  by  a  written  power 
of  attorney,  appoint  some  person  residing 
within  the  jurisdiction  of  the  court  for  the 
judicial  district  wherein  such  suretyship  is 
to  be  undertaken,  ...  as  its  agent, 
upon  whom  may  be  served  [322]  all  law- 
ful process  against  such  company,  .  .  ." 
Sec.  3,  that  every  company,  before  trans- 
acting business  under  the  act,  shall  deposit 
with  the  Attorney  General  of  the  United 
State  a  copy  of  its  charter  and  a  state- 
ment showing  assets  and  liabilities,  and  "if 
the  said  Attorney  General  shall  be  satisfied 
that  such  company  has  authority  under  its 
charter  to  do  the  business  provided  for  in 
this  act,  and  that  it  has  a  paid-up  capital 
of  not  less  than  $250,000  in  cash  or  its 
equivalent,  and  is  able  to  keep  and  perform 
its  contracts,  he  shall  grant  authority  in 
writing  to  such  company  to  do  business  un- 
der this  act."  Sec.  4,  that  quarterly  state- 
ments shall  be  filed  with  the  Attorney  Gen- 
eral, who  shall  have  power  to  revoke  the 
authority  of  any  company  "whenever  in  his 
judgment  such  company  is  not  solvent  or  is 
conducting  its  business  in  violation  of  this 
act.''  Sec.  6,  that  "any  surety  company  do- 
ing business  under  the  provisions  of  this 
act  may  be  sued  in  respect  thereof  in  any 
court  of  the  United  States*'  which  has  juris- 
diction, in  the  district  in  which  the  instru- 
ment was  made  or  guaranteed  or  the  prin- 
cipal office  of  the  company  is  located.  Sec. 
6,  that  "all  right  to  do  business  under  this 
act"  shall  be  forfeited  upon  failure  to  pay 
a  final  judgment  against  it.  Sec.  7,  that  a 
company  having  executed  any  instrument 
under  the  act  shall  be  estopped  to  deny  its 
corporate  power  to  execute  same.  Sec.  8, 
that  penalties  therein  prescribed  for  failure 
to  comply  with  the  provisions  of  the  act 
shall  be  recovered  by  suit. 

The  court  of  common  pleas  held  the  tax 
"ie  M  chBTge  for  the  privilege  of  transacting 
00S 


business  in  the  state,  measured  by  tin 
amount  of  the  business  done;"  there  ii 
"nothing  in  the  act  of  Congress  to  support 
the  proposition  that  the  defendant  was  Ml' 
thorized  by  it  to  transact  its  business  ii 
the  state  of  Pennsylvania;"  and  in  exaeat* 
ing  the  specified  bonds  the  surety  companj 
"was  in  no  sense  an  instrumentality  of  gov- 
ernment." Judgment  was  according^ 
[323]  rendered  for  the  state;  and,  on  ap- 
peal, this  was  affirmed  upon  findings  and 
opinion  below. 

In  behalf  of  plaintiff  in  error,  counad 
maintained  that  the  taxing  power  of  thi 
state  has  been  so  exercised  as  to  collide 
with  operations  of  the  Federal  government; 
that  under  the  act  of  Congress  the  surety 
company  became  a  Federal  instrumentality 
with  power  to  execute  bonds  within  tlM 
state,  and  consequently  could  not  be  sab- 
jected  to  a  privilege  tax  therefor. 

That  the  challenged  tax  "is  an  exactioa 
for  the  privilege  of  doing  business"  seenu 
plain  (Equitable  Life  Assur.  Soc.  t.  Penn* 
sylvania,  238  U.  S.  143,  59  L.  ed.  1239,  S6 
Sup.  Ct.  Rep.  820) ;  and  undoubtedly  s 
state  may  not  directly  and  materially 
hinder  exercise  of  constitutional  powers  oi 
the  United  States  by  demanding  in  opposi- 
tion to  the  will  of  Congress  that  a  Federal 
instrumentality  pay  a  tax  for  the  privilegf 
of  performing  its  functions.  Farmers'  A 
M.  Sav.  Bank  v.  MinnesoU,  232  U.  8.  616, 
58  L.  ed.  706,  31  Sup.  Ct.  Rep.  354;  Qkw 
taw,  O.  &  G.  R.  Co.  V.  Harrison,  235  U.  8. 
292,  59  L.  ed.  234,  35  Sup.  Ct.  Rep.  27. 
But  mere  contracts  between  private  corpo- 
rations and  the  United  States  do  not  neoos- 
sarily  render  the  former  essential  govern- 
mental agencies,  and  confer  freedom  from 
state  control.  Baltimore  Shipbuilding  A 
Dry  Dock  Co.  v.  Baltimore,  195  U.  a  376, 
49  L.  ed.  242,  25  Sup.  Ct.  Rep.  50.  More- 
over, whatever  may  be  their  status,  if  the 
pertinent  statute  discloses  the  intention  oi 
Congress  that  such  corporations,  contractin| 
under  it  with  the  Federal  government,  ahaV 
not  be  exempt  from  state  regulation  and 
taxation,  they  must  submit  thereto.  Firsi 
Nat.  Bank  v.  Kentucky,  9  Wall.  353,  362 
19  L.  ed.  701,  703;  Van  Allen  v.  Asseaaon 
(Churchill  v.  Utica),  3  Wall.  573,  685,  If 
L.  ed.  229,  235;  Cooley,  Taxn.  3d  ed.  pp 
130,  131. 

As  revealed  by  its  title,  the  purpose  ol 
the  act  of  1894  is  "to  allow  certain  corpo- 
rations to  be  accepted  as  surety,  etc."  Ii 
does  not  undertake  to  endow  any  corpora- 
tion with  power,  but  only  to  permit  thoM 
complying  with  specified  conditions  to  exer- 
cise their  lawful  powers,  derived  from  otta 
F  urces,  by  contracting  with  the  govemmenl 
[324]  under  official  approval.  ^Power  to 
guarantee,"  required  by  §  1,  is  not  the  sam 

240  U.  B* 


iOU.  SBABOASD  A.  L.  R.  CO.  t.  RAILROAD  OOUMIBSION.  3M 

thing  M  "authority  under  iti  charter"  r«-    trackag*  ooimection  between  r^lwaya.    Af- 

fwred  to   in  g  3;   and  we  think   the  clear    firmed. 

Intent  was  that  existence    «f    the    former       See  aame  case  below,  129  C.  C.  A.  013,  £18 

•hould  be  determined  by  the  Uwa  in  force    Fed.  Z7. 

at  place  of  contract.    Neither  cireumitance*       The  facta  are  stated  in  the  opinion. 

nor  language  of  the  act  indicate  de.ign  or       „^„,    ^  Watklna.    and    W.    O. 

neceaaity  to  hmit  •Ppli«t'on  by  the  aev-    j^  ^      ^  ^^^  ^         ^„j    ^i^l,  ^ 

era)  .tatea  of  a  weU-e.tabl.Bhed  ayBtem  of    ^^    Carroll  Latimer,  flled  a  brUf  for  appe]. 

Iiecnsmg  and  taxing  bonding  companie*  not    j^^^. 

incorporated     under     their     own     etatutea.        ^he    order    complained    of    ie    arbitrary, 

PlamtUI  u>  error  ■  right  to  carry  on  buai-    ^^,^^^^1     ^j  without  tubtUntUI  evi- 

neui  in  Pennaylvania  depended  upon  com-    ^^^  ^^  support  it. 

P'™*^-*!'''  ''■  "*"■      ...  ....  Central  Stock  Yardi  Co.  v.  Louisville  ft 

We  find  DO  error  m  the  judgment  of  the    jj  g_  ^^  ^^^  U.  S.  688,  671.  48  L  ed.  665, 
emrt  below  and  it  le  affirmed.  ggg    2^  g,,p    ^    p^p    335.   Wadley  South- 

ern R.  Co.  T.  State,  137  Oa.  607,  73  S.  B. 
—~-^  741-  Washington  ex  rel.  Oregon  R,  ft  Na¥. 

Co.  T.  Fairchild,  224  U.  S.  610,  631,  66  L.  ed. 
663.  870.  32  Sup.  Ct.  Rep.  636. 

It   is   the   judgment   of   the   Commission 
that   the    statute    says    must   be    satisfied. 
Such   statute   contemplates   that   the   Com- 
miMion  ahould  base  its  determination  upon 
(Bee  B.  C.  Reporter's  ed.  324-328.)  the  evidence  before  it,  and  unless  an  order 

is    founded   upon   iubstantial   evidence,    it 
Conatltntlonnl  law  —  due  procaas  of  law    should  be  set  aside. 
—  compnlaorr  trackage  connection.  Railroad  Commission  v.  Louiaville  ft  N. 

It  is  within  Uie  power  of  a  sUte.  r.  Co.  140  Ga.  817,  L.RJ1.1B15B,  902,  80 
acting  through  an  administrative  body,  to  g.  E.  327,  Ann.  Gas.  1916A,  1018;  Louis- 
LTnng  X"^e"n"Tci"f  t"'S  -»«  ft  N.  R.  Go.  v.  Finn,  236  U.  S.  601,  59 
and  ma'nUin  track  connections  tor  the  in-  L-  «!■  3^8.  P.U.R.IB15A,  121,  35  Sup.  Ct. 
terchange  of  tranic  at  that  point,  where  the  Rep.  146;  Wadley  Southvrn  R.  Co.  v. 
etUblished  facts  show  public  neceisitv  Georgia,  235  U.  S.  Q51,  59  L.  cd.  405,  P.U.R. 
therefor,  just  regard  being  given  to  the  ad-  1915A,  100,  36  Sup.  Ct.  Rep.  214. 
vantages  which  will  possibly  result  on  one  The  courts  cannot  Initiate  any  plan  for 
*'''di"'i;h"'"'"^  expenses  to  be  incurred  ^  connection;  that  question  has  been  left 
r?or  oiher"«,e..  see  Conslltn.loD.l  Lsw.  for;aetern.in«tion  by  the  Commission. 
IV.  b,  t.  In  Dlsest  8up.  Ct.  1U08.J  Texas  ft  P.  R.  Co.  v.  Abilene  Cotton  Oil 

Co.  204  U.  S.  426,  SI  L.  ed.  553,  '27  Sup. 
[No.  170.]  Ct.  Rep.  360,  0  Ann.  Cas.  1076. 

.  ,  ,~       .  ,.    ,n,.     T.    -J  J       Congress   having   acted   on   the   subject- 

Argued  January  13  and  14    1918.    Decided    „,^j^«  j^,  jj^,,^  Commission  of  Geor- 
lebruary  21,  lUiu,  ^^  ^^^  ^^  Jurisdiction  to  order  the  phyai- 

APPEAL  from  the  United  States  Circuit  «1  connection. 
Court  of  Appeals  for  the  Fifth  Circuit  ^lakely  Southern  R.  Co.  t.  Atlantic 
to  review  a  decree  which  affirmed  a  decree  CoastUne  R.  Co.  26  Intera.  Com.  Rep.  300; 
of  the  District  Court  for  the  Northern  Dia-  St  Louis,  S.  4  P.  R.  Co.  v.  Peoria  ft  P.  U. 
trict  of  GeorgU,  dismisaing  the  bill  In  a  R  Co.  26  Inters.  Com.  Rep.  226;  Chicag«), 
suit  to  enjoin  the  enforcement  of  an  order  R-  I.  ft  P.  R  Co.  v.  Hardwick  Farmers' 
of  th«  SUte  Railroad  Commiuion,  requiring    Elevator  Co.  226  U.  8.  426,  67  L  ed.  2S4J 

: 46  L.R.A.(N.S.)  203.  33  Sup.  Ct.  Rep.  174; 

Note.— On  requiring  connection  or  joint    gouthem  R  Co.  ».  Reid,  222  U.  S.  424,  440, 

must  be  made-Se  note  to  Pacific  Teleg.  ft  United    States    v.    Union    Stock    Yard    ft 

Tfeleph.   Co.  V.   Eshleman,   50  L.R.A.(N.S.)  Transit  Go.  228   U.  S.  286,  303.  57   L.  ed. 

«62.  226,  232.  33  Sup.  Ct.  Rep.  83;  St.  Louis,  I. 

As  to  what  constitutes  due  process  of  law.  U.  ft  S.  R.  Co.  t.  Edwards,  227  U.  S.  266, 

marallr— see  notes  to  People  v.  O'Brien,  2  269.  270.  67  L,  ed.  606,  507,  33  Sup.  Ct.  Rep. 

.RJ,  265;   Kunti  v.  Sumption.  2  L.R.A.  202;  McNeill  t.  Southern  R.  Co.  202  U.  S. 

w5;    Re  Gannon.  5  I^f-Ai.ffB;   Ulman  v.  g^j    ^  ^    ^    jj^g,  26  Sup.  Ct.  Rep.  722; 

Baltimore,  11  L.R.A.  224;  Oilman  V.  Tucker,  „.  '        .  n    n    a.  m  u      1.      oit  tt    o 

13  L.R.A.  304 ;  Pearson  v.  Yewdall.  24  L.  ed!  "'"«""  !"■  «■  Co   '.  Nebraska,  217  U   S. 

n.  S.  436;  Witoon  v.  North  Carolina.  42  J»e.  207,  64  L.  ed.  727.  731,  30  Sup.  Gt  Rep. 

It.  ed.  U.  S.  8(S  461,  18  Ann.  Gas.  889 ;  Loa  Angeles  Switch- 
••  L.  ed.  ««^ 


Cr 


SUPRBHE  COURT  OP  THB  UNITED  STATES.      Oor.  -. 


tng  C«sa  (Interatatfl  CommarM  CommlMioB 
T.  AtchiMii.T.*S.F.  R.CO.)  234  U.  S.  SM, 
SB  L.  ed.  1319,  34  Sup.  Ot.  Rq>.  814;  Louii- 
ville  A  H.  R.  Co.  *.  Hlgdon,  234  U.  6.  S92, 
68  L.  «d.  1484,  34  Sup.  Ct.  Rep.  048 1 
lUinob  a  E.  Co.  T.  Da  FnentM,  236  U.  S. 
167,  69  L.  ed.  617,  P.U.R.1S16A,  840,  S6 


deuce,  or  if  the  facts  fouod  do  ttot,  ••  ft  wt 
ter  of  Uw,  support  this  order,  then  the  mmm 
would  be  void. 

Iiit«rit«t«  Commerce  Commission  t, 
Lou»7il1e  A  N.  R.  Co.  E27  U.  S.  88,  57  U 
ed.  431,  33  Sup.  Ct.  Rep.  IBS. 

In  matters  of  local  ooneern,  mad   not  ol 


Sup.  Ct.  Rep.  87S.  BStionsl  importance,  the  state  may  act  fer 


Hr.  Jamea  K.  HInea  argued  the  eanai 


their  control  and  maiia{(emeiit  until  ( 


and  AM  a  brief  for  appelleL:  f  *"  ^i'^*"*  «•»  «uperaede.  state  aotioB. 

Error   must   afUrmativcly  appear   before  ^uch  exerciie  of  authority  is  regarded  H 

there  can  be  a  reTerwl,  and  the  burden  Is  f^fl  ^"^'"g  i>;t«riUte  commerce  taal- 

on  the  plaintiff  to  show  it.  dentally  or  remotely,  and  not  constitntiaff 

Mercantile  Trust  Co.  y.  Heusey,  t06  U.  %  "«?;'*""°  "^  ^*  '"  *'"  "•"'°«  "*  *** 

B.  SD8,  308,  61  L.  ed.  811,  814,  27  Sup.  Ot.  i-o"ti»ution.  ,      „  „    „. 

Rep.    636.    10    Ann.    Cas.    672;    Carroll    t.  „, ^*"*'/"'«''*.7",  ^   "    ^^}-   "»' 

Peake,  1  Pet  18,  23,  7  L.  ed.  34,  36:  Bsc-  ^^   ^  *^-  ^^2;    MobUe  Coun^  t.  Kunball. 

nell  ».  Hroderlck.  13  Pet.  436.  10  L.  cd.  235;  ]^.  «■  S-  Ml.  26  I*  »d-  238;    Bowman  t. 

Southern   R.   Co.  t.  AtUnU  StoTe  WoA^  Chicago  t  N.  W.  R.  Co.  126  U.  S.  466,  485, 

I2B  Qa.  222    67  S.  E.  429.  ^^  ^  *''  '^^'  '^^^'  ^  ^^^^-  ^^-  R«P-  SIS, 

TTie  flndinn  of  the  Railroad  Commission  ^  ^"P-  Ct-  Rep.  689,  1082. 
of  Georgia,  having  been  concurred  in  by  the       A  state  sUtute  i.  not  to  U  deemed  ■ 

district  court  and  the  circuit  court  o(  ap-  '^l«tl«>  »'  commerce  among  the   aUte^ 

peaU,   will    not   be   interfered  with,   unless  ■^P'?  '»««''«  "  ""?  Inculentally  or  Indl- 

tho  record  establishes  that  clear  and  un-  '^^7  •"*«*  ""*=»  commerce, 
mistakable  error  has  been  committed.  Mt«oori,  K.  *  T.  R.  Co.  t.  Habor,  ISt 

Illinois  C.  R.  Co.  y.  InteraUte  Commerce  ^  S-  "»,  626,  42  L  ed.  B78,  881,  18  Sup. 

Cominisiion,  208  U.  S.  441,  44S,  61  L  ed.  ^t'  ««?■  "8;   Chicago,  M.  t  St  P.  R.  Co. 

112B,  1130,  27  Sup.  Ct  Rep.  70O;   Cincin-  "■  ^olan,  189  U.  8.  133.  42  L.  ed.  688,  15 

nati,   H.  t   D.  R.   Co.  t.  IntersUte  Com-  Sup.  Ct  Rep.  280;  Western  U.  Teleg.  Co.  r. 

mcree  Commissioa.  206  U.  8.  142,  154.  61  J'"*',   162  U.   S.   660.  40  L.  ed.   1106.   » 

L.  ed.  006,  1001,  27  Sup.  Ct.  Bep.  648.  Sup.  Ct.  Rep.  034. 

Courts  are  rehictwit  to  interfere  with  the       Tk'«  ""''l".  requiring  the  Seaboard  Air 

laws  of  a  state,  or  with  the  tribunals  con-  !-'«  Railway  and  the  Lawrencerille  BrawA 

sUtnted  to  enforce  them;   and  doubts  will  R»ilroad  Company  to  connect  their  tradn 

be  reaolTed  In  favor  of  the  state  and  ita  ^*^^  *■"  city  Hmita  of  LawrenceriUe,  for 

tribnoals.  ^*  interchange  of  trsffle  between  said  llne^ 

Grand  Tmak  R.  Co.  t.  Michigan  R.  Com-  *'  "'"•'"  *^'  regulaUng  power  of  the  aUta 
mission,  281  U.  S.  4«7,  BB  L.  ad.  316,  34  "^  Commission ;  and  is  not  unconrtttu- 
Sup  Ct  Rep  152.  *'*""'  "  intw'w'ng  "'**  interaUte  corn- 
There  can  be  no  doubt  of  the  power  of  "■"«»■  "  d'pHving  the  csrriers  of  their 
the  sUte.  acting  through  an  admin  latntive  property  without  due  proceas  of  law. 
body,  to  require  railroad  companiea  to  make  Grand  Trunk  R.  Co.  t.  HichigMi  R.  Corn- 
track  connections.  ■"i"*'™.  231  U.  S.  488,  SB  I*  ed.   813.  34 

Wisconsin,  M.  A  P.  R.  Co.  t.  Jacobaon,  °"P;  p*"  ^P-  ^"2. 
170  U.  a  287,  4S  L.  ed.  104,  21  Sup    Ct.       ^hu  order  of  the  Railroad  Commieaion  b 

Rep.  116j  Washington  es  rel.  Or<«on  R.  *  •  tegulation  of  the  businesa  of  appelUot, 

NaT.  Co.  T.  Fairchild,  224  U.  8.  610,  628.  ^"^  "«>*  •"  »Ppropriation  of  lU  tanulnat 

66  L.  ed.  863.  869.  32  Sup.  Ct.  Rep.  635;  '»cilitiea   for   the   uae  and   benefit   of   tfao 

Grand  Trunk  B.  Co.  t.  Michigan  R.  Com-  I*wrenceyille  Branch  Railroad, 
mission.  231  U.  B.  467,  468,  68  L  ed.  310,       Wisconsin,  M.  ft  P.  R.  Co.  y.  Jacobatm, 

317,  84  Sup.  Ct  Rap.  152.  1"  U.  S.  287,  46  L.  ed.  194,  81  Sup.  Ct 

In     determining    the    reasonableness    of  ^^-   ^^^''   Minneapolis  ft  St  U  R.   Co.  Vi 

raoh  an  order,  the  court  must  consider  sll  Minnesota,  186  U.  S.  267,  46  L.  ed.  1151, 

the  facU,  the  places  and  persons  interested,  22  Sup.  Ct  Rep.'  000;  Wsshington  ex  M. 

Tolume  of  business  to  be  affected,  the  s»t-  Oregon   R.   ft   NaT.   Co.   v,   Fairchild,   224 

ing  of  time  and  ezpenae  to  the  shipper,  as  V.  S.  619,  628,  56  L,  ed.  S67,  869,  32  Sup. 

■gainst  the  ooat  and  expense  to  the  carrier.  Ct.  Rep.  535;  Grand  Trunk  R.  Co.  t.  Miehl- 

Washlngton  ei  reL  Oregon  R.  ft  Nav.  Co.  gan  R.  Commission,  231  U.  6.  467.  408,  68 

T.  Fairchild,  224  U.  8.  510,  628,  66  L.  ed.  U  ed.  310.  317,  34  Sup.  Ct  Rep.  168. 
863,  869,  32  Sup.  Ct  Rep.  536.  Railroad  companiea  are  organiied  for  the 

If  this  order  was  baaed  upon  a  finding  public  interest,  and  to  subserra  primarilr 

w.Udb  it  Indiaputftbly  contrary  to  the  stI-  the  public  good  and  ooBTenicnea. 


vm. 


8EAB0ABD  A.  L.  R.  00.  ▼.  RAILROAD  00MMIS8I0N. 


Qrand  Trunk  R.  Oo.  ▼.  Michigan  R.  Com- 
HiMioii,  231  U.  8.  457,  470,  58  L.  ed.  310, 
118,  34  Sup.  Ct.  Rep.  152. 

It  can  require  a  carrier  to  run  its  trains 
io  as  to  connect  with  another  carrier,  al- 
though this  is  done  at  a  loss. 

Atlantic  Coast  line  R.  Co.  t.  North 
Carolina  Corp.  Commissicm,  206  U.  S.  1, 
51  L.  ed.  933,  27  Sup.  Ct  Rep.  585,  11  Ann. 
Oas.  898. 

So,  the  state  can  compel  physical  connec- 
tions between  railroads,  when  the  public  in- 
terest demands  it,  although  the  construe- 
tion  of  such  connections  requires  the  ex- 
penditure of  money  by  such  companies,  and 
entails  on  them  loss  of  business  and  rev- 
enue. 

Wisconsin,  M.  A  P.  R.  Co.  t.  Jaoobson, 
179  U.  S.  289,  45  L.  ed.  195,  21  Sup.  Ct. 
Rep.  115;  Minneapolis  A  St.  Lw  R.  Co.  t. 
Minnesota^  186  U.  &  257,  46  L.  ed.  1151, 
22  Sup.  Ct.  Rep.  900;  Washington  ex  reL 
Oregon  R.  A  NaT.  Co.  ▼.  Fairchild,  224  U.  8. 
519,  528,  56  L.  ed.  867,  869,  82  Sup.  Ct 
Rep.  535. 

A  railway  company  accepts  its  franchise 
from  the  state,  subject  to  the  condition  that 
it  will  conform  at  its  own  expense  to  any 
reasonable  regulation. 

Cincinnati,  I.  A  W.  R.  Co.  t.  Connors- 
▼ille,  218  U.  S.  336,  54  L.  ed.  1060,  31  Sup. 
Ct  Rep.  98,  20  Ann.  Cas.  1206. 

A  state  is  competent  to  create  a  commis- 
sion and  give  it  the  power  of  regulating 
railroads  and  investigating  conditions  upon 
which  regulations  may  be  directed;  and 
the  judiciary  will  only  interfere  with  such 
a  commission  when  it  appears  that  it  has 
clearly  transcended  its  powers. 

Grand  Trunk  R.  Co.  v.  Michigan  R.  Com- 
mission, 231  U.  S.  457,  58  L.  ed.  310,  34 
Sup.  Ct.  Rep.  152. 

Mr.  Justice  McReynolds  delivered  the 
opinion  of  the  court: 

After  hearing  the  interested  parties,  the 
Railroad  Commission  of  Georgia  concluded 
that  making  and  maintaining  physical  con- 
nection at  Lawrenceville,  Georgia  (a  man- 
ufacturing town  with  two  thousand  in- 
habitants), between  Lawrenceville  Branch 
Railj-oad  and  Seaboard  Air  Line  Railway, 
would  be  practicable  and  to  the  public  in- 
terest; and  accordingly  passed  an  order 
that  within  lour  months  the  roads  should 
provide  and  maintain  one,  together  with 
sufficient  interchange  tracks  to  care  lor 
traflle  moving  between  them.  No  definite 
point  for  the  connection  was  prescribed; 
opinion  was  expressed  that  expenses  should 
be*  borne  equally  by  the  two  companies; 
60  li.  ed. 


and  they  were  directed  to  report  their  ac- 
tion within  thirty  days. 

[327]  Appellant  brought  this  proceeding 
in  the  United  States  district  oourt»  north- 
em  district  of  Georgia,  alleging  the  order 
was  null  and  void,  and  asking  that  its  en- 
forcement be  enjoined.  That  oourt  heard 
additional  evidence  and  upon  the  whole 
record  concluded  the  challenged  order  was 
not  unreasonable,  and  the  Commission  was 
InUy  justified  in  making  it  206  Fed.  181. 
Injunction  was  accordingly  denied  and  suit 
dismissed,  and  this  action  was  affirmed  by 
the  circuit  court  of  appeals.  129  C.  C.  A. 
613,  213  Fed.  27. 

Section  2664,  Georgia  Code  1910,  gives 
the  Railroad  Commission  "power  and  au- 
thority, when  in  its  judgment  practicable 
and  to  the  interest  of  the  public,  to  order 
and  compel  the  making  and  operation  of 
physical  connection  between  lines  of  rail- 
road crossing  or  intersecting  each  other,  on 
entering  the  same  incorporated  town  or  city 
in  this  state."  Wadley  Southern  R.  Co.  v. 
Georgia,  235  U.  S.  651,  59  L.  ed.  405,  P. 
U.R.1915A,  106,  35  Sup.  Ct  Rep.  214. 

It  is  within  the  power  of  a  state,  acting 
through  an  administrative  body,  to  require 
railroad  companies  to  make  tarack  connec- 
tions .where  the  established  facts  show  pub- 
lic necessity  therefor,  just  regard  being 
given  to  advantages  which  will  probably  re- 
sult on  one  side  and  necessary  expenses  to 
be  incurred  on  the  other.  The  facts  being 
established,  the  question  then  presented  is 
whether,  as  matter  of  law,  there  is  sufficient 
evidence  to  support  a  finding  of  public  ne- 
cessity,— ^the  mere  declaration  of  a  Commis- 
sion is  not  conclusive.  Wisconsin,  M.  A  P. 
R.  Co.  V.  Jacobson,  179  U.  S.  287,  295,  296, 
45  L.  ed.  194, 198, 199, 21  Sup.  Ct.  Rep.  115; 
Washington  ex  rel.  Oiegon  R.  A  Nav.  Co.  v. 
Fairchild,  224  U.  S.  510,  56  L.  ed.  863,  32 
Sup.  Ct.  Rep.  535;  Great  Northern  R.  Co. 
V.  Minnesota,  238  U.  S.  340,  845,  59  L.  ed. 
1337,  1339,  P.U.R.1915D,  701,  86  Sup.  Ct 
Rep.  753. 

The  state  Commission  ^nd  both  courts 
were  of  opinion  that  the  facts  sufficed  to 
show  public  necessity  for  the  connection 
in  question,  and  that  it  could  be  construct- 
ed and  maintained  without  unreasonable  ex- 
penditure. The  only  substantial  question 
before  us  ii  whether  such  finding  [328]  is 
plainly  erroneous  because  the  evidence  is  in- 
sufficient to  support  it;  and,  having  exam- 
ined the  record,  we  are  unable  to  say  the 
facts  disclosed  do  not  give  the  essential 
support  The  judgment  of  the  oourt  below 
is  acoordingly  affirmed. 


828 


SUPREME  COURT  OF  THE  UNITEtf  STATES. 


Oct.  TEtM, 


JAKE  BUTLER,  Plff.  in  Err.,  f 

J.    W.    PERRY,    as    Sheriff   of    Colombia  I 
County,  Florida.  , 

(See  S;  G.  Reporter's  ed.  328-338.) 

Constitutional  law  —  Involuntary  serri- 
tude  ^  conscripted  labor  on  high- 
way. 

1.  Involuntary  servitude  is  not  im- 
posed, contrary  to  U.  S.  Const.,  13th 
Amend.,  by  the  provisions  of  Fla.  Jaws 
1913,  chap.  6537,  §§  10,  12,  making  it  a 
misdemeanor  punishable  by  fine  or  impris- 
onment for  any  able-bodied  male  person  be- 
tween the  ages  of  twenty-one  and  forty-five 
years  to  fail  in  any  year  to  perform  six 
days'  labor  on  the  highways  of  bis  county, 
when  summoned,  or  to  provide  an  able- 
bodied  substitute,  or,  in  lieu  thereof,  pay 
$3  to  the  road  overseer. 

[For  other  cases,  see  Constitutionml  Law, 
1581-1587,  in  Digest  Sup.  Ct  1908.] 

Constitutional    law   «   due   process   of 

law  —  liberty  —  conscripted  labor  on 

highways. 

2.  Liberty  or  property  is  not  taken 
without  due  process  of  law,  contrary  to  U. 
S.  Const.,  14th  Amend.,  by  the  provisions 
of  Fla.  Laws  1913,  chap.  6637,  §§  10,  12, 
making  it  a  misdemeanor  punishable  by  fine 
or  imprisonment  for  any  able-bodied  male 
person  between  the  ages  of  twenty-one  and 
forty-five  years  to  fail  in  any  year  ta  per- 
form six  days'  labor  on  the  highways  of  his 
county,  when  summoned,  or  U>  provide  an 
able-bodied  substitute,  or,  in  lieu  thereof, 
pay  $3  to  the  road  overseer. 

(For  other  cases,  see  Constitutional  Law, 
IV.  b,  3;  IV.  b,  4,  in  Digest  Sup.  Ct.  1908.] 

[No.  182.] 

Submitted  January  14,  1916.    Decided  Feb- 
ruary 21,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Florida  to  review  a  judgment 
which  affirmed  a  judgment  of  the  Circuit 
Court  of  Columbia  County,  in  that  state, 
refusing  relief  by  habeas  corpus  to  a  per- 
son cofivicted  of  failing  to  do  the  required 
work  on  the  public  highways.     Affirmed. 

See  same  case  below,  67  Fla.  405,  66  So. 
150. 

The  facts  are  stated  in  the  opinion. 

Mr.  Charles  Cook  Howell  submitted  the 
cause  for  plaintiff  in  error: 

The  Florida  statute  imposes  involuntary 
servitude  upon  the  plaintiff  in  error,  not  as 
a  punishment  for  crime,  in  violation  of  the 
13th  Amendment  to  the  Federal  Constitu- 
tion. 

Bailey  v.  Alabama,  219  U.  S.  219,  55  L. 

Note. — On  conscription  of  labor  for  work- 
ing highway  as  a  tax — see  note  to  State  t. 
Wheeler,  5  L.RJk.(N.S.)   1139. 
•  72 


ed.  191,  31  Sup.  Ct.  Rep.  145;  CivU  Rights 
Cases,  109  U.  S.  36,  27  L.  ed.  847,  3  Sup. 
Ct  Rep.  18;  Clyatt  v.  United  States,  197 
U.  S.  207,  49  L.  ed.  726,  25  Sup.  Ct.  Rep. 
429;  Slaughter-House  Cases,  16  WalL  69» 
21  L.  ed.  406;  State  ex  rel.  Erickson  v. 
West,  42  Minn.  147,  43  N.  W.  845;  Re 
Thompson,  117  Mo.  83»  20  L.RJL  462,  38 
Am.  St.  Rep.  639,  22  S.  W.  836;  Ex  parte 
Wilson,  114  U.  S.  417,  29  L.  ed.  89,  5  Sup. 
Ct  Rep.  935,  4  Am.  Crim.  Rep.  283. 

The  police  power  of  the  state  must  always 
yield  to  the  Federal  Constitution  and  do 
rights  granted  or  secured  by  the  supreme 
law  of  the  land. 

1  Bailey,  Habeas  Corpus,*  §  38;  Barrett 
V.  New  York,  232  U.  S.  14,  58  L.  ed.  483, 
34  Sup.  Ct.  Rep.  203;  Henderson  v.  New 
York,  92  U.  S.  259,  23  L.  ed.  543;  Kansas 
City  Southern  R.  Co.  v.  Kaw  Valley  Drain- 
age Dist  233  U.  S.  75,  58  L.  ed.  857,  34 
Sup.  Ct.  Rep.  564;  New  Orleans  Oaslight 
Co.  y.  Louisiana  Light  &  H.  P.  A  Mfg.  Co. 
115  U.  S.  650,  29  L.  ed.  516,  6  Sup.  Ct.  Rep. 
252;  Hannibal  A  St  J.  R.  Co.  v.  Husen, 
95  U.  S.  465,  24  L.  ed.  527 ;  SUte  v.  Arm- 
stead,  103  Miss.  790,  60  So.  778,  Ann.  Cas. 
1915B,  495;  Stone  v.  Farmers'  Loan  A  T. 
Co.  116  U.  S.  307,  29  L.  ed.  636,  6  Sup.  Ct 
Rep.  334,  388,  1191;  Re  Tie  Loy,  26  Fed. 
611;  Toney  v.  State,  141  Ala.  120,  67  L.R.A. 
286,  109  Am.  St  Rep.  23,  37  So.  332,  8 
Ann.  Cas.  319;  Webber  v.  Virginia,  103  U. 
S.  344,  26  L.  ed.  565';  Welton'  v.  Missouri. 
91  U.  S.  275,  23  L.  ed.  347. 

A  statute  declaring  the  exercise  of  a  con- 
stitutionally guaranteed  right  to  be  a 
crime  is  unconstitutionaL 

Bailey  v.  Alabama,  219  U.  S.  219,  55  L. 
ed.  191,  31  Sup.  Ct  Rep.  145,  161  Ala.  75, 

49  So.  886;  State  v.  Armstead,  103  Miss. 
790,  60  So.  778,  Ann.  Cas.  1915B,  495; 
State  V.  Julow,  129  Mo.  163,  29  LJLA.  257, 

50  Am.  St  Rep.  443,  31  S.  W.  781. 

Due  process  of  law  is  denied  by  this 
statute. 

Dartmouth  College  t.  Woodward,  4 
Wheat  518,  4  L.  ed.  629;  Davis  v.  Florida 
Power  Co.  64  Fla.  246,  60  So.  759,  Ann. 
Cas.  1914B,  965,  5  N.  C.  C.  A.  926;  Taylor  v. 
Porter,  4  Hill,  140,  40  Am.  Dec  274;  Story» 
Const  4th  ed.  §§  1943  et  seq. 

I^abor  is  property,  and  as  such  is  enti- 
tled to  the  protection  of  the  14th  Amend- 
ment 

Re  Marshall,  102  Fed.  324;  O^ara  ▼. 
Stack,  90  Pa.  491 ;  Gillespie  v.  People,  188 
III.  176,  52  L.R.A.  283,  80  Am.  St  Rep. 
176,  58  N.  £.  1009;  Slaughter-House  Cases, 
16  Wall.  69,  21  L.  ed.  406;  Ex  parte  Stein- 
man,  95  Pa.  220,  40  Am.  Rep.  637. 

Statutes  forcing  an  attorney  to  represent 
the  state,  or  persons  designated  by  it,  with- 

240  U.  8. 


tUM.                                               BUTLER  r.  FEBBY.                                          SSB,   UO 

Mt  nmuawtion,  «oiiitltut«  deprlTfttloa  of  i  tiit  age  of  tortr-llTe  jet^n,  retlding  In  uid 

frojfttij  vlthout  <lu«  proMU  of  l&w.  nunty  for  thirtj  days  or  more  continuoua- 

BlTtha  T.  State,  4  Ind.  SSS;  Clay  County  ly  next  prior  to  the  dat«  of  makiiiK  of  the 

t.  HeOregoT,  171  Ind.  034,  87  N.  B.  1,  17  liat  by  the  board  of  oounty  oommiaaionera, 

Ann.  Caa.  333;  Dane  County  v.  Smith,  IS  or   the  date  of  the  aummani  or   notice  te 

Wia.  eU,  60  An.  Dec.  754;  Howard  County  work,  sltall  be  subject,  liable  and  required 

T.  Pollard,  163  Ind.  371,  SS  N.  B.  87;  Webb  to  work  on. the  roada  and   bridge*  of  the 

*.  Baird,  S  Ind.  13.  teveral  counties    for    aix   daya   of   not    leaa 

Private  proper^  can  be  constitutionaUy  than  ten  hours  each  in  earh  year  when  lunt- 

teken  for  road  du^  only  under  the  right  of  moned  ao  te  do,   aa  herein  provided;   tliat 

enuDent  domain,  or  upon   the  payment   of  auch  pereona  ao  lubject  to  road  duty  may 

jnat  eompenaatloD.  perform   auch    aervicea   by   an    able-bodied 

People  ex  laL  Manhattan  SaT.  Inat.  t.  substitute  over  the  age  of  eighteen  yoara,  or 

Otia,  90  N.  T.  48;    Poaay  Twp,  t.  Benour,  in  lieu  thereof  may  pay  to  the  road  overaeer 

4S  Ind.  App.  680,  88  N.  E.  440;   Punpelly  on  or  before  the  day  he  ia  called  upon  to 

V.  Green  Bay  ft  M.  Canal  Co.  IS  Wall.  166,  render  such  Hrvica  the  aum  of  t3,  and  aueh 

10  L.  ad.  6ST;  Toone  *.  Stete,  178  AU.  70,  overaeer  shall   turn  into  the  county  treaa- 

42  LJLA.(M.S.)    1046,  69  So.  605.  ury  of  bie  county  any   and  all   moneya  ao 

w     _-             •.    .^          ...             n          1  P*'^  to  ''""»  **>*  same  to  be  placed  to  the 

».  Thorn.,  r.  w™,  Atlor™,  Ora.r.l  ^^^^  „^„  „,  ^,  „^  „j  bridg.  f™d 

I  It         ■"''"'"*^  "■  """  ''"  ''•'»''■  "d  •uliKt  to  th.  Older  o(  th.  liord  ol 

"m.      f^'i'            1  .    J     .  J            .  ._  eounty  commiMioner,  tot  ro.d  .nd  bridge 

n»«  (UtuU  compl.liied  of  doe.  not  im-  _„j_(j^g. 

J«.  m,oloot.ry  „r.ltud.  opoo  tb.  pl.i..  "^    ^^  '^^    '                             „           ^. 

tin  ..mo,  bot..  .  P"o..b«™t  lor  „,«..  ,f„,„',ir.ho  .k.ll  1.11  to  work 

Ro  I>...l.r    3»   K..    671    12    P«.   130;  ^ '    „,          j    „,  ^       ^  ^^            ,     ^^ 

SUt,  B  r.l.  Ojrl,.  ,   TopA^  3«  X...  76,  J  ^  to  do  ».  or  .0  pro.id.  .  .ubitl- 

P;        '      ^             ,,j,j            .J  or  reluM  to  m.ke  payment  tor  tbe  ..me, 

Tb.  eUtut.  eompUlned  of  doe.  »ol  de-  .,   i,„|„i,,„„   p,o!rtd»l,   .b.ll   be   guilt, 

pti,e  tb.  pU.ot.ir  1.  error  of  b.e  l.bert,  or  „,  ,  „i,j,„„„„,  ,„j  „p„„  eoovletloo  .h.ll 

propert,  wilboot  doe  proceM  of  Uw  |^  ,^       ,              ^        „„  „  |o,p,i„o,j 


n  the  county  jail  tor  not  longer  than  thirty 
days." 


Galloway  v.  Tavares,  37  Fla.  68,  19  So. 
170;  Haahburn  v.  Stete,  65  Fta.  470,  62  So. 

MS;    8Uto   V.   Wheeler,    141   N.   C.   773.   S  ""J.ui„tiff   m    error   waa  convicted   In   the 

L.B^.(N.S.)    1139,  115  Am.  St.   Rep.   700,  „„^„t     j^j     ,,  ^^^  Columbia  county,  up- 

S3  8.  E.  368;   Short  ».  Stete,  80  Md.  SBZ,  ^  ^'^lar^  of  failing  te  work  on  a  ro.d^ 

a  L.R.A.  404,  31  AtL  322;  Toone  v.  Stete.  „j  «nteneed  to  jail  for  thirty  days.     The 

178  AJa.  70.  42  L.R.A.(NB.)    1045.  59  So.  ^^.^^    ^^^^        ^„t^    ^    „i{    J  habeaa 
866;    Stete   T.   McCnllu.    28    R.   I.    165,   g  y,^  „„  heard,  remanded  te  the  cus- 

La.A.(N.S.)  635,  60  Atl.  301,  13  Ann.  Caa.  f^^^  „(  the  sheriff,  and  then  releaaed  under 

701;    Stete  V.  McMahon.   78   Conn.   97.   66  t^^^     The  aupreme  court  of  the  atete  af- 

-AtL   691;    Smith    v.    Elberton.   S   Ga.   App.  armeA  the  action  of  the  circuit  court   {67 

Sit,  63  8.  E.  48;  l^edy  v.  Bourbon.  12  Ind.  yU.  406.  06  So.  150),  and  the  causa  la  here 

-Ak>.  486,  40  N.  E.  640;  Dennia  y.  Simon,  u„n  «,jit  of  error 

■^l  Ohio  St.   233,   36   N.  E.    832;    Stete  v.        ^  j,  i„gi,tgd  that  §§  10  and  )2,  aupra, 

I^aybum,  2  Okla.  Crim.  Rep.  413.  22  L.HJ.  „a  i^^^n^  becauae  they  undertake  to  Im- 

<H.S.)     1067,    101    Pao.    1029.    Ann.    Caa.  j^^   i„voluntery   aervitude  not  aa  a  pun- 

-291SA.  733.  iahment    for    crime,    contrary    to   the    13th 

He  polioe  power  of  the  atete  U  one  of  Amendment   te    the    Federal    Conatitntioa ; 

^tk<  moat  eaaential  powera  of  the  govern-  and  alao  because  their  enforcement  would 

^^aent  and  one  of  the   leaat  Umiteblei   and  deprive  plaintiff  of  his  liberty  and  property 

-the   imperative   necessity    for    ite   eziatenoa  without  due  prooeaa  of  Uw.  in  violation  of 

:3)reeludea  any  limiUtion  upon  it  when  not  the  14th  Amendment. 

arbitrarily  exerciaed.  In  view  of  ancient  usage  and  the  unanim- 

Hadacheck   v.   Sebaatiau,  230   U.  8.   304,  jty  of  judicial  opinion,  it  must  be  teken  aa 

«Bte,  348,  36  Sup.  Ct.  Rep.  143.  aettled  tliat,  unteas  restrained  by  some  con- 
stitutional limitation,  a  stete  haa  inherent 

Mr.    Juatlce    Hcltoynolda    delivered    the  power    to    require    every    able-bodied    man 

pinion   of  the  court:  within  lU  jurisdiction  to  labor  for  a  rea- 

Chaptet  8637,  Lawa  of  Florida   (Aete  of  sonable  time  on  public  roads  near  hia  real- 

1913,  pp.  469,  474,  476),  provldee:  dence   without   direct   eoropenaatlon.     Thla 

"See.  10.  Every  able-bodied  male  peraon  ia  a  part  of  the  duty  whieh  h«  owea  to  the 

over  tha  age  of  tweu^-one  yeara,  and  under  puhlio.     The  law  of  England   ia  thus  da- 
<•  Ii.  ad.                                                        43  Vl% 


S80-33S 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tkrm^ 


dared  in  Blackttone's  Commentaries,  bk. 
1,  page  367: 

"Every  parish  is  bound  of  common  right 
to  keep  the  [331]  highroads  that  go 
through  it  in  good  and  sufficient  repair; 
unless  by  reason  of  the  tenure  of  lands, 
or  otherwise,  this  care  is  consigned  to  some 
particular  private  person.  From  this  bur- 
then no  man  was  exempt  by  our  ancient 
laws,  whatever  other  inununities  he  might 
enjoy:  this  being  part  of  the  trinoda  neoe*" 
9ita9,  to  which  every  man's  estate  was 
subject;  vie,  ewpeditio  contra  ho»tem,  ttroi- 
um  oonBtruciio,  et  poniium  reparatio.  For, 
though  the  reparation  of  bridges  only  is  ex- 
pressed, yet  that  of  roads  also  must  be  un- 
derstood; as  in  the  Roman  law,  with  re- 
spect to  the  construction  and  repairing  of 
ways  and  bridges  no  class  of  men  of  what- 
ever rank  or  dignity  should  be  exempted." 
The  trinoda  necesiitaa  was  an  obligation 
falling  on  all  freemen,  or  at  least  on  all 
free  householders.  VinogradofT,  English 
Society  in  the  Eleventh  Century,  p.  82. 

From  Colonial  days  to  the  present  time 
conscripted  labor  has  been  much  relied  on 
for  the  construction  and  maintenance  of 
roads.  The  system  was  introduced  from 
England,  and,  while  it  has  produced  no 
Appian  Way,  appropriateness  to  the  cir- 
cumstances existing  in  rural  communities 
gave  it  general  favor.  Elliott,  Roads  & 
Streets,  §§  479,  480;  Dill.  Mun.  Corp.  5th 
ed.  f  1407,  p.  2459,  note;  Cooley,  Const. 
Lim.  7th  ed.  p.  736;  Re  Dassler,  35  Kan. 
678,  12  Pac.  130;  State  v.  Wheeler,  141 
N.  C.  773,  116  Am.  St.  Rep.  700,  53  S.  E. 
368,  6  L.R.A.(N.S.)  1139,  note;  Den- 
nis V.  Simon,  61  Ohio  St.  233,  36  N.  E.  832; 
State  V.  Raybum,  2  Okla.  Crim.  Rep.  413, 
22  L.R.A.(N.S.)  1067,  101  Pac.  1029,  Ann. 
Cas.  191 2 A,  733;  Sawyer  v.  Alton,  4  111. 
127;  State  v.  Halifax,  15  N.  C.  (4  Dev.  L.) 
345.  In  1889  the  statutes  of  twenty-seven 
states  provided  for  such  labor  on  public 
roads.     Young's  Recent  Road  Legislation. 

The  ordinance  of  1787  for  the  govern- 
ment of  the  Northwest  Territory  declares: 
There  shall  be  neither  slavery  nor  invol- 
untary servitude  in  the  said  territory, 
otherwise  than  in  punishment  of  crimes, 
whereof  the  party  shall  have  been  duly  con- 
victed."    [1  Stat,  at  L.  53,  note.] 

[332]  In  1792  the  territorial  legislative 
body  passed  an  act  providing:  "That  every 
male  inhabitant  of  sixteen  years  of  age  and 
upwards  on  being  duly  warned  to  work  on 
the  highways  by  the  supervisor  in  the  town- 
ship to  which  such  inhabitant  may  belong 
shall  repair  to  the  place  and  at  the  time  by 
the  said  supervisor  appointed  with  such 
utensils  and  tools  as  may  be  ordered  him 
wherewith  he  is  to  labour  and  there  abide 
and  obey  the  direction  of  such  supervisor 
•74 


during  the  day  in  opening  and  repairing  th» 
highway."  (Sec.  6,  chapter  IV.,  Laws  passed 
from  July  to  December,  1792,  Laws  of  the 
Territory  Northwest  of  the  Ohio,  1788- 
1798.)  An  act  of  the  general  assembly  of 
the  territory  passed  in  1790,  declared: 
"That  all  male  persons  of  the  age  of  twen- 
ty-one years,  and  not  exceeding  fifty,  wha 
have  resided  thirty  days  in  any  township 
of  any  county  within  this  territory,  wha 
are  not  a  township  charge,  shall  over  and 
above  the  rate  of  assessment  hereinafter 
mentioned,  be  liable,  yearly  and  every  year, 
to  do  and  perform  two  days'  work  on  the 
public  roads,  under  the  direction  of  the 
supervisor  within  whose  limits  they  shall 
be  respectively  residents."  (Sec.  10,  chap- 
ter 28  of  Northwest  Territory  Acts  1799.) 

By  their  several  Constitutions  the  states 
within  the  limits  of  the  Northwest  Terri- 
tory prohibited  involuntary  servitude  sub- 
stantially in  the  language  of  the  1787  ordi- 
nance, and  with  the  possible  exception  of 
Wisconsin,  all  of  them  early  enacted  and 
long  enforced  laws  requiring  labor  upon 
public  roads. 

Utilizing  the  language  of  the  ordinance 
of  1787,  the  13th  Amendment  declares  that 
neither  slavery  nor  involuntary  servitude 
shall  exist.  This  Amendment  was  adopted 
with  reference  to  conditions  existing  since 
the  foundation  of  our  government,  and  the 
term  "involuntary  servitude"  was  intended 
to  cover  those  forms  of  compulsory  labor 
akin  to  African  slavery  which,  in  practical 
operation,  would  tend  to  produce  like  unde- 
sirable results.  [333]  It  introduced  no 
novel  doctrine  with  respect  of  services  al- 
ways treated  as  exceptional,  and  certainly 
was  not  intended  to  interdict  enforcement  of 
those  duties  which  individuals  owe  to  the 
state,  such  as  services  in  the  army,  militia, 
on  the  jury,  etc.  The  great  purpose  in  view 
was  liberty  under  the  protection  of  effective 
government,  not  the  destruction  of  the  latter 
by  depriving  it  of  essential  powers. 
SlaughterHouse  Cases,  16  Wall.  36,  69,  71^ 
72,  21  L.  ed.  394,  406,  407 ;  Plessy  v.  Fergu- 
son, 163  U.  S.  537,  542,  41  L.  ed.  256.  257, 
10  Sup.  Ct.  Rep.  1138;  Robertson  v.  Bald- 
win, 165  U.  S.  275,  282,  41  L.  ed.  715,  717, 
17  Sup.  Ct.  Rep.  326;  Clyatt  v.  United 
States,  197  U.  S.  207,  49  L.  ed.  726,  26  Sup. 
Ct.  Rep.  429;  Bailey  v.  Alabama,  210  U.  S, 
219,  55  L.  ed.  191,  31  Sup.  Ct.  Rep.  145. 

There  is  no  merit  in  the  claim  that  a 
man's  labor  is  property,  the  taking  of  which 
without  compensation  by  the  state  for 
building  and  maintenance  of  public  roads 
violates  the  due  process  clause  of  the  14th 
Amendment.  That  Amendment  was  intend- 
ed to  preserve  and  protect  fundamental 
rights  long  recognised  under  the  common- 
law   system.     Slaughtar-House   Oases,   fu- 

240  IT.  8. 


191^ 


PHILADELPHIA  &  R.  IL  CO.  ▼.  UNITED  STATES. 


833,   334 


pra;  Jaeobson  ▼.  Mastachusetts,  107  U.  S. 
11,  40  L.  ed.  643,  26  Sup.  Ct.  Rep.  358,  8 
Ann.  Ca8.  765;  Giozza  ▼  Tiernan,  148  U. 
8.  657,  662,  37  L.  ed.  500,  13  Sup.  Ct.  Rep. 
721;  Hugler  t.  Kansas,  123  U.  S.  623,  663, 
81  L.  ed.  205,  211,  8  Sup.  Ct.  Rep.  273; 
Barbier  ▼.  Connolly,  113  U.  S.  27,  31,  28  L. 
ed.  023,  024,  5  Sup.  Ct.  Rep.  357;  Kelly  t. 
PitUburgh,  104  U.  S.  78,  80,  26  L.  ed.  658, 
650;  Davidson  y.  New  Orleans,  06  U.  S. 
07,  24  L.  ed.  616.  Conceding  for  some  pur- 
poses labor  must  be  considered  as  property, 
it  is  evident  from  what  already  has  been 
said  that  to  require  work  on  the  public 
roads  has  never  been  regarded  as  a  depriva- 
tion of  either  liberty  or  property. 

The  circumstances  of  the  present  cit^  in- 
dicate no  failure  •to  observe  due  process  of 
law  in  the  exercise  of  the  state's  undoubt- 
ed power.  Ample  notice  appears  to  have 
been  given  and  disr^arded.  There  was  an 
orderly  trial  and  conviction  before  a  duly 
constituted  tribunal  for  a  plainly  defined 
statutory  offense,  followed  by  a  sentence  not 
alleged  to  be  unreasonable. 

We  find  no  error  in  the  judgment  of  the 
court  below,  and  it  is  affirmed. 


[334]      PHILADELPHIA     ft     READING 
RAILWAY  COMPANY,  Appt., 


V. 


UNITED  STATES  OF  AMERICA  (Inter- 
state Commerce  Commission,  and  Allen- 
town  Portland  Cement  Company,  Inter- 
vening Respondents),  Appellees. 

(See  S.  C.  Reporter's  ed.  334-341.) 

Carriers  «  discrimination  In  rates. 

Jersey  City  is  ^ot  subjected  to  any 
undue  or  unreasonable  prejudice  or  disad- 
vantage in  respect  to  freight  rates  on 
eement  from  the  Lehigh  cement  district  be- 
cause a  carrier,  while  maintaining  or  partic- 
ipating in  joint  rates  for  cement  to  eastern 
destinations,  such  as  Baltimore,  Philadel- 
phia, New  York,  and  New  England  points, 
whidi  are  not  higher  from  Evansville,  Penh- 
sylvania,  than  the  contemporaneous  rates 
which  it  maintains  or  participates  in  from 
other  cement  mills  in  the  Lehigh  district, 
refuses  contemporaneously  to  participate  in 
the  same  relative  adiustment  on  the  cement 
traflic  from  Evansville  to  Jersev  City  for 
load  consumption,  where  the  /ersey  City 
rate  is  intrinsically  reasonable  and  nondis- 
criminatory in  relation  to  rates  accorded 
other  consuming  points. 
[For  other  cases,  see  Carriers,  III.  %  in  Digest 
8np.  Ct.  1908.] 

[No.  440.] 

Argued  and  anbmitted  October  18  and  10, 

1915.    Deoided  Febmary  28,  1910b 
••  Ii.  ed. 


APPEAL  from  the  District  Court  of  the 
United  States  for  the  Eastern  District 
of  Pennsylvania  to  review  a  decree  which 
dismissed  the  bill  by  which  a  carrier  sought 
to  secure  the  annulment  of  an  order  of  the 
Interstate  Commerce  Commission  command- 
ing it  and  other  carriers  to  desist  from  sub* 
jecting  Jersey  City  to  undue  prejudice  and 
disadvantage  in  respect  of  rates  on  cement. 
Reversed  and  remanded  for  further  proceed* 
ings. 

See  same  case  below,  219  Fed.  988. 

The  facts  are  stated  in  the  opinion. 

Mr.  Henry  8.  Drinker,  Jr.,  argued  the 
cause,  and,  with  Messrs.  William  L.  Kinter, 
Charl^  Heebner,  and  Abraham  M.  Beitler, 
filed  a  brief  for  appellant: 

When  a  carrier,  in  fixing  its  rates,  baa 
given  proper  consideration  to  circumstances 
within  its  control,  it  is  not  obliged  to  alter 
its  otherwise  reasonable  rates  by  reason  of 
circumstances  beyond  its  power  to  regulate. 

East  Tennessee,  V.  &  G.  R.  Co.  v.  Inter- 
state Commerce  Commission,  181  U.  8.  1, 
18,  46  L.  ed.  719,  725,  21  Sup.  Ct.  Rep.  516. 

An  order  of  the  Commission  is  unlawful 
which  is  predicated  on  a  charge  of  discrim- 
ination by  locality  against  a  railroad  which 
does  not  serve  both  the  locality  alleged  to 
be  preferred  and  that  alleged  to  be  preju- 
diced by  the  regulation  complained  of. 

St.  Louis,  I.  M.  ds  S.  R.  0>.  v.  United 
States,  217  Fed.  80. 

The  exaction  of  inland  rates  on  shipments 
for  transshipment  by  water  lower  than  the 
local  rates  for  domestic  consumption  has  so 
frequently  been  sustained  by  this  court  as 
to  require  but  little  comment. 

Texas  &  P.  R.  Co.  v.  Interstate  Commerce 
Ckimmission,  162  U.  S.  107,  40  L.  ed.  940,  5 
Inters.  Com.  Rep.  405,  16  Sup.  Ct.  Rep.  666. 

Assistant  Attorney  General  Underwood 
submitted  the  cause  for  the  United  States. 
Mr.  Blackburn  Esterline  was  on  the  brief: 

The  practice  complained  of  subjected 
Jersey  City  to  undue  and  unreasonable 
prejudice  and  disadvantage. 

Houston,  E.  A  W.  T.  R.  0>.  v.  United 
States,  234  U.  S.  342,  356,  58  L.  ed.  1341, 
1350,  34  Sup.  Ct.  Rep.  833;  Southern  R.  Co. 
V.  United  States,  204  Fed.  465;  IntersUte 
0>mmerce  Commission  v.  Louisville  A  N.  R. 
Co.  118  Fed.  613;  Texas  k  P.  R.  Co.  v. 
Interstate  Commerce  Commission,  162  U.  S. 
197,  220,  40  L.  ed.  940,  947,  5  Inters.  Com 
Rep.  405,  16  Sup.  Ct.  Rep.  660. 

What  is  undue  or  unreasonable  prefer- 
ence or  advantage  is  a  question  not  of  law, 
but  of  fact. 

Pennsylvania  Co.  t.  United  States,  236 
U.  8.  851,  361,  59  L.  ed.  616,  623,  P.U.R. 
1915B,  261,  85  Sup.  Ct.  Rep.  370;  Texas  k 
P.  R.  Co.  ▼.  Interstate  Commerce  Commis- 

675 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  TteM, 


flion,  162  U.  8.  197,  219,  40  L.  ed.  940,  947, 
6  Inters.  Com.  Rep.  406,  16  Sup.  Ct.  Rep. 
666;  Interstate  Commerce  Commission  ▼. 
Alabama  Midland  R.  Co.  168  U.  S.  144,  170, 
42  L.  ed.  414,  424,  18  Sup.  Ct.  Rep.  45. 

The  determination  of  this  question  of 
fact  is  for  the  Commission,  and  its  findings 
are  conclusiye. 

Interstate  Commerce  Commission  t.  Illi* 
nols  C.  R.  Co.  215  U.  S.  462,  64  L.  ed.  280, 
80  Sup.  Ct.  Rep.  156;  Interstate  Commerce 
Commission  ▼.  Delaware,  L.  A  W.  R.  Co. 
220  U.  S.  235,  56  L.  ed.  448,  31  Sup.  Ct: 
Rep.  892;  Interstate  Commerce  Commission 
V.  LouisvUle  A  N.  R.  Co.  227  U.  S.  88,  57 
L.  ed.  431,  33  Sup.  Ct.  Rep.  185;  East 
Tennessee,  V.  A  6.  R.  Co.  t.  Interstate  Com- 
merce Ccmunission,  181  U.  S.  1,  23-29,  45 
L.  ed.  719,  727-729,  21  Sup.  Ct.  Rep.  616; 
United  SUtes  t.  Louisville  A  N.  R.  Co.  236 
U.  a  314,  320,  59  L.  ed.  245,  260,  35  Sup. 
Ct  Rep.  113. 

This  case  haying  been  submitted  on  bill 
and  answer,  the  preferences  and  discrimina- 
tion alleged  in  the  answer  of  the  Commis- 
sion must  be  taken  as  true. 

Interstate  Commerce  Commission  t.  Illi- 
nois C.  R.  Co.  215  U.  S.  462,  475,  64  L.  ed. 
280,  289,  30  Sup.  Ct.  Rep.  165;  Interstate 
Commerce  Commission  ▼.  Chicago  ft  A.  R. 
Co.  216  U.  S.  479,  64  L.  ed.  291,  30  Sup.  Ct. 
Rep.  163;  Interstate  Commerce  Commission 
T.  Chicago,  R.  I.  k  P.  R.  Co.  218  U.  S.  88, 
64  L.  ed.  946,  30  Sup.  Ct  Rep.  651. 

Appellant  having  voluntarily,  in  its  traffic 
agreements  with  the  other  carriers,  estab- 
lished the  same  relative  rates  from  all 
points  in  the  Lehigh  district  to  consuming 
points  other  than  Jersey  City,  cannot,  if 
conditions  are  the  same,  arbitrarily  decline 
to  make  the  same  arrangement  with  respect 
to  Jersey  City. 

Darling  v.  Baltimore  A  O.  R.  Co.  15 
Inters.  Com.  Rep.  87;  Spokane  v.  Northern 
P.  R.  Co.  21  Inters.  Com.  Rep.  424. 

There  is  nothing  in  the  record  to  show 
the  absence  of  substantial  evidence  sup- 
porting the  findings  of  fact,  so  they  are  con- 
clusively correct  in  case  of  judicial  review. 

United  States  v.  Louisville  k  N.  R.  Co. 
235  U.  S.  314,  320,  59  L.  ed.  246,  250,  35 
Sup.  Ct  Rep.  113. 

Mr.  Oharlea  W.  Needham  argued  the 
eause,  and,  with  Mr.  Joseph  W.  Folk,  filed 
a  brief  for  the  Interstate  Commerce  Com- 
mission: 

So  long  as  the  parties  affected  appear 
and  are  fully  heard,  the  power  of  the  Com- 
mission extends  to  the  granting  of  such 
relief  as  the  facts  disclosed  may  warrant, 
even  though  such  facts  may  be  presented  by 
evidenos  technically  outside  the  issues. 
•7« 


New  York  C.  k  H.  R.  R.  Co.  v.  Interstate 
Commerce  Commission,  168  Fed.  188. 

The  powers  of  the  Commission  are  quasi 
judicial  as  well  as  administrative,  and  in 
making  its  orders  it  must  have  in  view  the 
general  provisions  of  the  act  to  regulate 
commerce  and  the  prevention  of  any  evil 
which  that  act  declares  unlawful.  The  out- 
look of  the  Commission  must  be  as  compre- 
hensive as  the  interest  of  the  whole  country. 

Interstate  Commerce  Conmiissioh  v.  Chi- 
cago, R.  L  A  P.  R.  Co.  218  U.  S.  88,  103,  54 
L.  ed.  946,  955,  30  Sup.  Ct.  Rep.  651. 

In  the  removal  of  discrimination  the 
Commission  must  consider  not  only  the  wd- 
fare  of  the  locality  where  the  traffic  orig- 
inates; the  welfare  of  the  locality  of  des- 
tination is  also,  under  the  terms  and  spirit 
of  the  act,  to  be  considered. 

Texas  k  P.  R.  Co.  v.  Interstate  Commerce 
Commission,  162  U.  S.  197,  220,  40  L.  ed. 
940,  947,  6  Inters.  Com.  Rep.  405,  16  Sup. 
St.  Rep.  666. 

In  view  of  the  facts  found  by  the  Com- 
mission as  to  preferences  and  discrimina- 
tions, which  must  be  taken  as  true,  as  the 
cause  was  submitted  on  bill  and  answer, 
it  is  beyond  controversy  that  the  subject 
with  which  the  order  dealt  was  within  the 
sweeping  provisions  of  §  3  of  the  act  to 
regulate  commerce,  prohibiting  prefenmces 
and  discriminations. 

Interstate  Commerce  Commission  v.  Illi- 
nois C.  R.  Co.  216  U.  S.  452,  476,  477,  64  L. 
ed.  280,  289,  290,  30  Sup.  Ct.  Rep.  155. 

The  determination  of  what  is  undue  or 
unreasonable  prejudice  or  disadvantage  re- 
quires the  exercise  of  judgment  and  discre- 
tion on  the  part  of  the  administrative,  rate- 
r^^lating  body. 

Pennsylvania  R.  Co.  v.  International  Coal 
Min.  Co.  230  U.  S.  18*4,  196,  67  L.  ed.  1446, 
1451,  33  Sup.  Ct.  Rep.  893,  Ann.  Cas.  1915A, 
315. 

It  is  the  duty  of  the  Commission,  under 
the  statute,  and  not  of  the  courts,  to  pass 
upon  administrative  questions  involving  the 
reasonableness  or  unreasonableness  of  rates, 
regulations,  or  practices. 

Mitchell  Coal  k  Coke  Co.  v.  Penn^lvania 
R.  Co.  230  U.  S.  247,  266,  267,  57  L.  ed. 
1472,  1476,  1476,  38  Sup.  Ct  Rep.  916.  See 
also  Houston,  E.  ds  W.  T.  R.  Co.  t.  United 
SUtes,  234  U.  S.  342,  349,  869,  68  L.  ed. 
1341,  1346,  1361,  34  Sup.  Ct  Rep.  883. 

The  concurrence  of  a  carrier  in  a  lawfuUy 
publiihed  rate  subjeets  that  oarrier  to  the 
terms  of  the  act  as  clearly  as  if  it  had  itself 
actually  filed  the  tariff  in  questton. 

United  States  v.  New  York  C.  4  H.  R.  R. 
Co.  218  U.  S.  609,  616,  68  L.ed.  629,  681,  29 

Sup.  Ct  Rep.  818. 

140  V.  •• 


191& 


PHILADELPHIA  k  R.  R.   CO.  y.  UNITED  STATES. 


886-838 


Mr.  William  A.  Glasgow,  Jr.,  argued 
the  eaufle,  and,  with  Messrs.  George  W. 
Aubrey  and  Chester  N.  Farr,  Jr.,  filed  a 
brief  for  the  Allentown  Portland  Cement 
Compaiiy. 

Mr.  Justice  McReynolds  delivered  the 
(pinion  of  the  court: 

This  appeal  brings  up  a  final  decree  of 
the  United  States  district  court,  eastern 
district  of  Pennsylvania,  which  dismissed 
the  railway's  original  bill  presented  to  se- 
cure annulment  of  an  order  by  the  Inter- 
state Commerce  Commission  commanding 
it  and  other  carriers  to  desist  from  subject- 
ing Jersey  City  to  imdue  prejudice  and  dis- 
advantage in  respect  of  rates  on  Portland 
cement  from  the  ''Lehigh  district"  in  Penn- 
sylvania.    219  Fed.  988. 

Appellant  maintains  that  when  consid- 
ered in  connection  with  its  report,  the  Com- 
mission's order  is  plainly  erroneous  as 
matter  of  law  because  wholly  unsupported 
by  the  ascertained  facts.  Interstate  Com- 
merce Commission  v.  Louisville  &  N.  R.  Co. 
227  U.  S.  88,  91,  57  L.  ed.  431,  433,  33  Sup. 
Ct  Rep.  185;  Florida  East  Coast  R.  Co.  v. 
United  States,  234  U.  S.  167,  185,  58  L.  ed. 
1267,  1271,  84  Sup.  Ct.  Rep.  867. 

In  November,  1912,  the  Allentown  Port- 
land Cement  Company  filed  a  petition  be- 
fore the  Interstate  Commerce  Commission 
against  the  Philadelphia  &  Reading  Rail- 
way Coinpany,  Central  Railroad  Company 
^f  New  Jersey,  Delaware,  Lackawanna,  k 
Western  Railroad  Company,  Erie  Railroad 
Company,  and  Pennsylvania  Railroad  Com- 
jMuiy,  wherein  it  alleged  the  Philadelphia 
^  Reading  operates  the  only  line  reaching 
its  plant  at  Evansville,  Pennsylvania,  and 
:in  connection  with  other  defendants  trans- 
:S>orts  cement  therefrom  to  many  points,  in- 
^shiding  Jersey  City;   [337]  that  the  pub- 
lished rate  of  $1.35  per  ton  charged  and  col- 
lected for  transportation  to  the  latter  place 
^s  unlawful  and  forbidden  by  §§  1  and  3  of 
^^^e  act  to  regulate  commerce.    It  prayed  for 
"an  order  declaring  the  rates  aforesaid  to 
unjust  and  unreasonable  and  that  the 
ime  discriminate  against  complainant  and 
^he  locality  wherein  is  located  its  plant  or 
factory  aforesaid,  and  that  the  Commission 
^Vrill  also  enter  an  order  fixing  the  reason- 
able and  just  rates  for  the  transportation  of 
Portland  Cement  from  its  factory  or  plant 
%t  Evansville,  over  the  lines  of  the  defend- 
ant."    After   hearing,  a  report  and  order 
Were  made  by  the  Commission ;  upon  rehear- 
ing the  original  findings  were  approved  in 
an  additional  report,  and  a  supplemental 
order,  not  substantially  different  from  the 
lirst  one,  was  passed.     The  material  por- 
tions of  these  reports  follow: 

"The  case  involves  the  question  of  the 
•0  Ii.  ed. 


reasonableness  and  justness  of  defendantif 
rate  for  the  transportation  of  cement  in 
car  loads  from  Evansville,  Pennsylvania,  to 
Jersey  City,  New  Jersey.  Evansville  is 
reached  only  by  the  Philadelphia  &  Reading 
Railway.  That  carrier  transports  the  ce- 
ment in  question  from  Evansville  to  Allen- 
town,  where.it  delivers  it  to  one  of  numer- 
ous connections  which  either  transports  it 
to  Jersey  City  or  in  turn  delivers  it  to 
other  carriers  for  final  delivery  at  Jersey 
City.  The  rate  via  these  various  routes 
is  $1.35.  Certain  of  the  carriers  which  re- 
ceive this  Evansville  cement  from  the  Phila- 
delphia k  Reading  at  Allentown  also  serve 
other  mills  in  the  same  general  vicinity  at 
Allentown,  namely,  the  Lehigh  district^ 
either  directly  or  through  connections.  The 
rate  from  these  other  mills  to  Jersey  City 
is  80  cents.  The  Philadelphia  k  Reading 
docs  not  participate  in  the  80-cent  rate  from 
any  mill  in  the  district.''  (31  Inters.  Com. 
Rep.  277.) 

''Evansville  is  situated  in  the  Lehigh  dis- 
trict and  is  one  of  numerous  cement  produc- 
ing points  in  that  district  located  within  a 
radius  of  perhaps  20  miles  of  each  other. 
None  of  the  other  mills,  however,  are  reached 
by  the  Philadelphia  k  [338]  Reading,  they 
being  served  by  the  Central  Railroad  of  New 
Jersey  or  Lehigh  Valley  direct,  or  by  short 
lines  of  railway  which  connect  with  those 
carriers  at  distances  of  from  I  to  16  miles 
from  their  junction  points.  While  the  rate 
to  Jersey  City  is  thus  $1.35  from  Evans- 
ville on  the  Philadelphia  k  Reading,  the  rate 
to  Jersey  City  from  these  competing  mills 
on  other  lines  is  80  cents.  ...  On  ship- 
ments to  Jersey  City  for  trans-shipment  by 
water  to  points  in  the  southeast,  such  as 
Charleston  and  Savannah,  the  rate  is  80 
cents  from  Evansville,  the  same  as  it  is 
from  these  other  mills;  and  this  equality  of 
Evansville  with  the  other  mills  is  main- 
tained on  traffic  to  Philadelphia,  Baltimore, 
New  York  city,  and  New  England.  In  other 
words,  the  rate  is  the  same  from  Evansville 
as  from  other  mills  in  the  Lehigh  district  to 
all  points  east,  except  on  traffic  to  Jers^ 
City  for  local  consumption. 

"The  8a-cent  rate  to  Jersey  City  locally 
from  the  other  mills  is  used  in  connection 
with  shipments  destined  to  New  York,  that 
rate  plus  the  trucking  charge  to  all  points 
South  of  Ninetieth  street  totaling  less  than 
the  $1.40  rate  to  New  York  proper  plus  the 
trucking  charge  to  the  same  point,  the  result 
being  that  complainant,  who  must  use  the 
latter  rate,  is  effectively  barred  from  eom- 
petition  in  that  part  of  the  dty  located 
south  of  Forty-third  street,  whidi  is  the 
greatest  Cement  consuming  district.  North 
of  Ninetieth  street  complainant  can  com- 
pete with  the  other  mills  because  of  their 


888-341 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TkBic» 


greater  expense  in  the  longer  truck  haul 
from  Jersey  City.  It  will  alto  necessarily  be 
apparent  that  complainant  cannot  sell  any 
cement  in  Jersey  City  for  local  consumption 
in  competition  with  these  other  mills  which 
have  the  80-cent  rate." 

''It  cannot  be  questioned  that  complainant 
is  laboring  under  a  prohibitory  disadvan- 
tage in  marketing  its  product  in  Jersey 
City  under  the  present  rate  in  competition 
with  other  mills  in  the  same  district. 
While  it  is  true  that  the  Philadelphia  k 
Beading  does  not  have  any  hand  in  the 
[330}  establishment  of  the  80-cent  rate 
from  these  other  mills,  as  it  cannot  partici- 
pate in  that  traffic  be«iuse  it  does  not  senre 
them,  it  is  also  true  that  it  is  a*  party  to 
tariffs  under  which  cement  may  be  purchased 
as  cheaply  at  £vansville  as  at  neighboring 
mills  in  the  Lehigh  district  by  dealers  in 
and  consiuners  of  cement  at  practically  all 
points  of  importance  east  of  that  district, 
with  the  single  exception  of  Jersey  City. 
Why  Jersey  City  should  be  singled  out  by 
that  carrier  as  the  one  exception  to 
this  equalization  of  rates  as  between  com- 
peting mills  in  the  same  district  has  not 
been  satisfactorily  shown  by  this  record. 
We  are  therefore  of  opinion,  and  find,  that 
in  maintaining  or  participating  in  rates  on 
cement'  in  carloads  to  other  eastern  desti- 
nations, such  as  Baltimore,  Philadelphia, 
New  York,  and  New  England  points,  which 
are  not  higher  from  Evansville  than  the  con- 
temporaneous rates  which  it  maintains  or 
participates  In  from  other  mills  in  the 
Lehigh  district,  while  refusing  contempo- 
raneously to  participate  in  the  same  relative 
adjustment  from  Evansville  to  Jersey  City, 
the  Philadelphia  ft  Beading,  as  well  as  the  | 
other  carriers  defendant,  are  subjecting 
Jersey  City  and  its  traffic  to  an  undue  prej- 
udice and  disadvantage,  from  which  an 
order  will  be  entered  to  cease  and  desist."  i 
(27  Inters.  Com.  Bep.  448.) 

Purporting  to  base  its  action  on  the  fore- 
going findings,  the  Commission  directed: 

"That  the  above-named  defendants,  ac- 
cording as  their  various  lines  or  routes  may 
run,  be,  and  they  are  hereby,  notified  and  re- 
quired, on  or  before  October  1,  1914,  to  cease 
and  desist  from  said  undue  and  unreason- 
able prejudices  and  disadvantages." 

"That  said  defendants,  according  as  tluir 
various  lines  or  routes  may  run,  be,  and  they 
are  hereby  notified  and  required  to  establish 
OB  or  before  October  1,  1914,  upon  statutory 
notice  to  the  Interstate  Commerce  Commis- 
sion and  to  the  general  public  by  filing  and 
posting  in  the  manner  [340]  prescribed  in 
I  6  of  the  act  to  regulate  commerce,  and  for  a 
period  of  two  years  after  said  October  1, 
1914,  to  maintain  and  apply  to  said  trans- 
portation rates  which  will  prevent  and  avoid 
67S 


the  aforesaid  undue  and  unreasonable  preju- 
dices and  disadvantages." 

Undue  discrimination  against  itself  or  the 
locality  of  its  plant,  as  alleged  by  the  ce- 
ment company,  was  not  found;  the  com- 
munity declared  to  be  prejudiced  by  estab*. 
lished  conditions  had  offered  no  complaint 
and  was  not  party  to  the  proceedings. 
Neither  the  $1.35  rate  to  Jersey  City  nor  any 
other  participated  in  by  the  Philadelphia  k 
Beading  was  declared  unreasonable,  either 
in  itself  or  in  relation  to  others;  and  there 
was  no  positive  finding  touching  the  reason- 
ableness— intrinsic  or  relative— of  the  80- 
cent  schedule  from  "Ldiigh  district"  adopted 
by  the  remaining  carriers. 

In  their  brief  here,  counsel  for  the  Com- 
mission say: 

"The  Commission  did  not  pass  upon  the 
reasonableness  of  either  rate  [to  Jersey 
City— 80  cents  or  $1.35].  It  struck  at  the 
discrimination  and  the  cause  of  it.  It  said, 
in  effect,  to  these  iLYt  carriers,  that  as  they 
treated  the  Lehigh  cement  district  as  one 
point  of  origin  and  made  a  relative  odjusi- 
meni  of  raiet  on  cement  to  all  the  principle 
consuming  points  competing  with  Jersey 
City,  they  must  make  the  same  adjustment 
of  the  rates  to  Jersey  City  on  thift  commod- 
ity; that  they  might  make  the  rate  any 
suin  which  they  might  choose  to  initiate, 
but  that  it  must  be  the  same  as  the  rate 
from  every  mill  in  the  district  to  Jersey 
City.     ..." 

"If,  as  to  all  other  consuming  localities, 
they  [the  carriers]  are  giving  the  relative 
adjustment  of  rates  on  cement  from  oement 
mills  in  the  Lehigh  district,  and  refusing 
this  adjustment  to  one  consuming  locality, 
they  are  prejudicing  that  locality.    .  ' .    .    " 

"The  establishment  of  joint  rates  is  pro- 
vided for  in  §  6  of  the  act  to  regulate  com- 
merce. Such  rates  [341]  are  nuuie  by 
agreement  between  the  participating  car- 
riers and  cannot  be  filed  or  published  with- 
out such  agreement.     .     .     ." 

"The  appellant  has  no  individual  rate 
which  covers  the  cement  traffic  from  Evans- 
ville to  Jersey  City;  the  traffic  moves  on  a 
joint  rate.  The  cement  traffic  from  other 
mills  to  Jersey  City  and  to  other  principal 
consuming  points  also  moves  on  joint  rates. 
The  Philadelphia  k  Beading  is  a  party  to 
many  of  these  rates.  It  is  also  a  party  to 
the  joint  rate  from  Evansville  to  Jersey 
City.  As  a  participating  carrier  in  these 
rates  it  is  responsible  for  the  violation  of 
the  act  described  in  the  order." 

We  must  assume  the  Jersey  City  rate  of 
$1.35  is  intrinsically  reasonable  and  nondis- 
criminatory in  relation  to  thoae  aooorded 
otiier  consuming  points;  and,  plainly,  if 
this  were  put  in  by  all  carriers,  the  Commis- 
sion's order  would  be  complied  with  and  the 

240  U.  S. 


]015. 


RAST  ▼.  VAN  DEMAN  k  LEWIS  00. 


841,  842 


-supposed  discrlmioatlon  disappear.  It 
muflt  be  taken  aa  true  that  no  rate  above 
what  all  might  lawfully  establish  is  being 
demanded  by  any  carrier;  and,  with  one 
exception,  they  are  paid  40  per  cent  less 
than  that  amount.  If  a  universal  rate  of 
41.36  could  not  justly  be  complained  of  by 
the  locality,  certainly  it  is  not  discrimi- 
nated against  or  unlawfully  prejudiced  be- 
<ause,  failing  to  agree,  most  of  the  carriers 
have  established  an  80-cent  schedule.  In 
the  circumstances  disclosed  it  is  impossible 
rightly  to  conclude  that  Jersey  City  is  be- 
ing subjected  to  "any  undue  or  unreason- 
able   prejudice    or    disadvantage." 

As  the  facts  reported  afford  no  founda- 
-tion  for  the  Commission's  findings,  enforce- 
ment of  the  order  based  thereon  must  be 
•enjoined.  The  decree  below  is  accordingly 
Teversed  and  the  cause  remanded  for  further 
proceedings   consistent   with   this   opinion. 

Reversed. 


4342]  JOHN  W.  RAST,  Tax  Collector  for 
Duval  County,  State  of  Florida,  et  al., 
Appts., 

V. 

^AN  DEMAN  k  LEWIS  COMPANY,  The 
Harkisheimer  Company,  J.  S.  Pinkussohn 
Cigar  Company. 

(See  S.  C.  Reporter's  ed.  342-368.) 

¥*ederal  courts  —  enjoining  state  officers 
—  civil  or  criminal  prcx^eedings. 

1.  llie  threatened  enforcement  by  state 
•officers  through  civil  or  criminal  proceed- 
ings, of  a  state  statute  which  is  attacked 


I  aa  repugnant  to  the  Federal  Constitution, 
may  be  enjoined  by  a  Federal  court,  whera 
the  statute,  if  exerted  against  complainants 
and  their  property,  will  produce  irreparable 
injury. 

(For  other  cases,  see  Courts,  VI.  d,  2;  In- 
jDDction,  I.  1,  1,  In  Digest  Sap.  Ct.  1908.] 

Constitutional  law  —  equal  protection 
of  the  laws  «  claasiflcation  —  license 
tax. 

2.  There  is  such  a  difference  between* 
the  selling  of  goods  accompanied  by  coupons, 
profit-sharing  certificates,  or  other  evidenoea 
of  indebtedness  or  liability  redeemable  in 
premiums,  and  the  selling  of  goods  with- 
out such  inducements  to  purchasers,  that 
the  imposition  upon  the  former  business  of 
an  additional  license  tax  for  each  place  in 
each  and  every  county  in  which  said  busi- 
ness is  conducted,  as  is  done  by  Florida 
Laws  1913,  chap.  6421,  |  35,  does  not  of- 
fend against  the  equal  protection  of  the 
laws  clause  of  the  Federal  Constitution. 
[For  other  cases,  see  Constitutional  Law,  lY. 

a,  4,  in  Digest  Sup.  Ct.  1908.] 

Commerce  —  state  licenses  —  retail 
sales  —  redeemable  coupons  or  oer- 
tlflcates. 

3.  The  delivery  by  a  Florida  merchant 
of  coupons,  profit-sharing  certificates,  or 
other  evidence  of  indebtedness  or  liabilitT 
redeemable  in  premiums,  in  connection  with 
sales  of  merchandise  at  retail,  is  not  inter- 
state commerce  so  as  to  be  protected  against 
the  imposition  of  a  state  license  tax,  al- 
though the  coupons  may  have  been  inserted 
in  the  retail  packages  by  the  manufacturer 
or  shipper  outside  the  state,  and  are  redeem- 
able outside  the  state,  either  by  such  manu- 
facturer or  shipper,  or  by  some  other  agency 
outside  the  state. 

[For  other  cases,  see  Commerce,  IV.  b,  1,  In 
Digest  Sup.  Ct  1908.] 


Note. — On  injunction  to  restrain  prose- 
cution of  criminal  or  quasi  criminal  nature 
—see  notes  to  Hall  v.  Dunn,  25  L.RA.(N.S.) 
193;  penton  v.  McDonald,  34  L.RJl.(N.S.) 
453;  and  Alexander  v.  Elkins,  L.RJ1.1916C, 
263. 

As  to  when  action  against  officer  is 
deemed  to  be  action  against  the  state — see 
note  to  Louisville  &  N.  R.  Co.  v.  Burr,  44 
L.RJl.(N.S.)  189. 

On  forbidding  use  of  trading  stamps — see 
notes  to  £x  parte  Drexel,  2  L.RA.(NJ3.) 
^8;  Denver  v.  Frueauff,  7  L.RA.(N.S.) 
1131;  District  of  Columbia  v.  Kraft,  30 
X.JIJI.(N.S.)  957;  and  State  ex  rel.  Harti- 
^n  V.  Sperry  k  H.  Co.  49  L.RA.(N.S.) 
1123. 

As  to  what  constitutes  due  process  of 
law,  generally — see  notes  to  People  v. 
O'Brien,  2  L.RJI.  255;  Kuntz  v.  Sumption, 
-2  L.RJL  655;  Re  Gannon,  5  L.Rw^.  359; 
Ulman  v.  Baltimore,  11  L.R.A.  224;  Gilman 
V.  Tucker,  13  L.RJl.  304;  Pearson  v.  Yew- 
dall,  24  L.  ed.  U.  S.  436;  and  Wilson  v. 
North  Carolina,  42  L.  ed.  U.  S.  865. 

Aa  to  the  validity  of  class  legislation, 
^nerally— see  notes  to  State  v.  Goodwill,  6 
L.RJI.  621,  and  State  v.  Loomis,  21  LJLA. 
789. 
410  Xi.  ed. 


As  to  constitutional  equality  of  priv- 
ileges, immunities,  and  protection,  gener- 
ally—see note  to  Louisville  Safety  Vault  k 
T.  Co.  V.  Louisville  &  N.  R.  Co.  14  L.RJk. 
579. 

Generally,  as  to  what  laws  are  void  as 
impairing  obligation  of  contracts — see  notes 
to  Franklin  County  Grammar  School  v. 
Bailey,  10  L.R.A.  405;  Bullard  v.  Northern 
P.  R.  Co.  11  L.Rw^.  246;  Henderson  v.  State 
Soldiers  k  S.  Monument  Comrs.  13  L.RA. 
169;  and  Fletcher  v.  Peck,  3  L.  ed.  U.  S. 
162. 

As  to  state  licenses  or  taxes,  generally, 
as  afiTecting  interstate  commerce — see  notes 
to  Rothermel  v.  Meyerle,  9  L.RA.  366; 
American  Fertilizing  Co.  v.  Board  of  Agri- 
culture, 11  L.R.A.  179;  Gibbons  v.  Ogden,  6 
L.  ed.  U.  S.  23;  Brown  v.  Maryland,  6  L. 
ed.  U.  S.  678;  Ratterman  v.  Western  U. 
Teleg.  Co.  32  L.  ed.  U.  S.  229;  Harmon  v. 
Chicago,  37  L.  ed.  U.  S.  217 ;  Cleveland,  C. 
0.  k  St.  L.  R.  Co.  V.  Backus,  38  L.  ed.  U.  S. 
1041;  Postal  Teleg.  Cable  Co.  v.  Adams,  39 
L.  ed.  U.  S.  311,  and  Pittsburgh  k  S.  Coal 
Co.  V.  Bates,  39  L.  ed.  538. 

On  excessive  penalty  as  denial  of  due 
process  of  law — see  note  to  State  v.  Craw- 
ford, 46  LJLA.(N.S.)   1039. 


844,  845 


6UPREMB  COURT  OF  THE  UNITED  STATES. 


Oci.  Tbm, 


Internal  revenne  —  tobacco  ^redeem- 
able coupons  —  state  reculatlon  of  re- 
tall  sales. 

4.  The  permission,  if  any,  granted  by 
the  amendment  of  the  act  of  July  1,  1902 
(32  Stat,  at  L.  715,  chap.  1371,  Ck>mp.  Stat 
1918,  %  6204),  §  2,  to  U.  S.  Rev.  SUt. 
§  3394,  to  inclose  in  packages  of  tobacco 
redeemable  coupons,  profit-sharing  certifi- 
cates, etc.,  does  not  extend  to  retoil  sales 
of  such  packages  within  a  state  so  as  to  in- 
validate state  restrictions  upon  such  sales. 
[For  otber  cases,  see  Internal  Reyenne,  III.  i, 

in  Digest  Sup.  Ct.  1908.] 

Constitntlonal  law  ^Impairing  contract 
obligations  —  regulating  retail  sales 
with  redeemable  coupons. 

5.  Contract  obligations  are  not  uncon- 
stitutionally impaired  by  the  imposition, 
under  Florida  Laws  191^,  chap.' 6421,  §  35, 
of  an  additional  license  fee  upon  merchants 
offering  with  merchandise  bargained  or  sold 
coupons,  prollt-sharinff  certificates,  or  other 
evidences  of  indebtedness  or  liability  re- 
deemable in  premiums,  since  the  statute 
must  be  deemed  to  be  prospective  in  its 
operation,  and  not  to  affect  sales  completed 
before  its  enactment. 

[For  otber  cases,  see  Constitutional  Law, 
14S0-1474,  in  Digest  Sup.  Ct.  1908.] 

Constitutional  law  —  due  process  of  law 
»  freedom  of  contract  —  license  tax 
on  sales  accompanied  by  redeemable 
coupons. 

6.  Liberty  to  contract  is  not  unconsti- 
tutionally infringed,  contranr  to  the  due 
process  of  law  clause  of  U.  B.  Const.,  14th 
Amend.,  b^  Florida  Laws  1913,  chap.  6421, 
§  35,  making  merchants  offering  with  mer- 
chandise bargained  or  sold  any  coupons, 
profit-sharing  certificates,  or  other  evidences 
of  indebtedness  or  liability  redeemable  in 
premiums,  liable  to  pay  an  additional  li- 
cense tax,  which  may  be  prohibitive,  and,  if 
the  same  are  to  be  redeemed  bv  someone  else 
than  the  merchant  offering  them,. liable  to 
pay  a  similar  license  fee  for  the  one  who  is 
to  redeem. 

[For  other  cases,  see  Constitntioi^l  Law,  lY. 
b,  7,  in  Digest  Sap.  Ct.  1908.] 

Constitutional  law  —  equal  protection 
of  the  laws  —  excessive  penalties. 

7.  The  penalties  of  $1,000  fine,  or  six 
months'  imprisonment,  prescribed  by  Flori- 
da Laws  1913,  chap.  6421,  §  35,  for  viola- 
tions of  its  provisions  against  the  sale 
without  payment  of  the  specified  license  fee, 
of  merchandise  accompanied  by  coupons, 
profit-sharing  certificate,  or  other  evidences 
of  indebtedness,  or  other  liability  redeem- 
able in  premiums,  are  not  so  severe  as  to 
intimidate  against  a  contest  of  the  validity 
of  such  statute,  and  thus  deny  the  equal 
protection  of  the  laws. 

[For  other  cases,  see  Constitutional  Law,  lY. 
a,  7,  in  Digest  Sup.  Ct.  1908.] 

[No.  41.] 

Argaed  October  29  and  November  1  and  2, 
1915.    Decided  March  6,  1916. 

es0 


APPEAL  from  the  District  Court  of  ths 
United  States  for  the  Southern  Dis- 
trict of  Florida  to  review  a  decree  granting 
an  interlocutory  injunction  to  restrain  the 
threatened  enforcement  of  a  statute  im- 
posing a  license  fee  on  merchants  using  ra- 
deemable  coupons,  profit-sharing  certificates, 
etc.  Reversed  and  remanded,  with  dirss- 
tions  to  dismiss  the  bill. 
See  same  case  below,  214  Fed.  827. 

Statement  by  Mr.  Justice  McKenna: 
A  statute  of  Florida  passed  in  1918,  im- 
posing licenses  and  other  taxes,  provides 
that  merchants,  druggists,  and  storekeepers 
shall  pay  a  license  tax  upon  the  cash  valoe 
of  the  "stock  of  merchandise"  of  $3  for  the 
first  $1,000  or  fraction  thereof,  and  $1JM> 
for  each  additional  $1,000  or  fraction  there- 
of. The  tax  upon  wholesale  dealers  is  $1.50 
upon  each  $1,000.  The  statute  has  this 
proviso : 

"Provided,  further.  That  each  and  erery 
person,  firm  or  corporation,  who  shall  offer 
with  merchandise  bargained  or  sold  in  the 
course  of  trade  any  coupon,  profit-sharing 
certificate,  or  other  evidence  of  indebtednem 
or  liability,  redeemable  in  premiums,  shall 
pay  annually  a  state  license  tax  of  &▼• 
nundred  ($500)  dollars  and  a  county  li- 
cense tax  of  two  himdred  and  fifty  (|250) 
dollars  in  each  and  every  county  in  which 
said  business  is  conducted  or  carried  on, 
and  if  more  than  one  place  of  such  businem 
shall  be  operated  by  any  person,  firm  or 
corporation,  a  separate  state  and  county 
license  shall  be  taken  out  for  each  smh 
place;  and  no  person,  firm  or  corporatioB 
shall  offer  with  merchandise,  bargained  or 
sold  as  aforesaid,  any  coupon,  profit-sharing 
certificate  or  other  evidence  of  indebtedness 
or  liability,  redeemable  by  any  other  persoot 
firm  or  corporation  than  the  one  offering 
the  same  without  paying  the  above  licenss 
for  each  other  person,  firm  or  corporation 
who  may  redeem  the  same.  The  license  pre- 
scribed in  this  section  shall  be  in  additioa 
to  other  licenses  prescribed  by  this  aet 
Any  [345]  person  violating  any  of  the  pro- 
visions of  this  section,  whether  acting  fat 
himself  or  as  the  agent  of  another,  shidl  oa 
conviction  thereof  be  punished  by  fine  Mi 
exceeding  one  thousand  ($1,000)  dollars  or 
by  imprisonment  in  the  county  jail  not  ss- 
ceeding  six  months. 

"Mercantile  agencies:    Shall  pay  a  lU 
tax  of  one  hundred  ($100)  dollars  in 
county  in  which  an  office  is  established. 

"Merchants  using  trading  stamps,  shaL^ 
pay  a  license  tax  of  two  hundred  and  fifis 
($250)  dollars  for  each  place  of  busiss^ 
where  they  use  such  stamps. 

''Merchant  tailors  shall  pay  a  license  tax 

240  17.  ft 


1916. 


BAST  T.  VAN  DEMAN  &  LEWIS  00. 


M5-847 


of  ten  ($10)  dollars  for  each  place  of  busi- 


>f 


nesa. 

This  suit  was  instituted  by  appellees 
(Florida  merchants)  against  appellant 
Bast  as  tax  collector  of  Duval  county,  Flori- 
da, and  the  tax  collectors  of  each  county  in 
the  state,  the  different  state's  attorneys, 
eounty  solicitors,  and  prosecuting  attorneys 
of  the  circuits  and  counties  of  Florida.  The 
purpose  of  the  suit  was  to  restrain  those 
officers  from  proceeding  under  the  statute 
or  enforcing  it.  A  preliminary  and  per- 
petual injunction  was  prayed,  and  that  the 
act  be  declared  unconstitutional,  illegal,  and 
Toid. 

The  bill  is  very  elaborate  and  we  select 
from  its  repetitions  and  condense  the  fol- 
lowing: It  alleges  the  yarious  businesses 
in  which  the  complainants  are  engaged.  The 
Van  Deman  &  Lewis  Company  is  a  Florida 
corporation  and  a  wholesale  grocer,  doing 
business  as  such  and  selling  groceries  in 
certain  counties  in  the  state;  Harkisheimer 
Company  is  also  a  Florida  corporation  and 
is  a  retail  grocer;  J.  S.  Pinkussohn  Cigar 
Company  is  a  corporation  organized  under 
the  laws  of  South  Carolina  and  is  a  whole- 
sale and  retail  merchant,  buying  and  selling 
cigars  and  other  tobacco  products  in  the 
cities  of  Jacksonville  and  Pensacola,  Flori- 
da. With  these  complainants  were  joined 
others,  corporations  and  individuals,  doing 
business  in  Florida. 

[346]  It  is  alleged  that  complainants  and 
esch  of  them,  in  the  conduct  of  their  busi- 
ness, offer  for  sale  and  deal  in  various  and 
numerous  articles  of  merchandise  manu- 
factured and  produced  in  other  states  than 
Florida  by  .  persons  and  corporations  in 
those  states  and  shipped  into  Florida  to  be 
sold  therein,  and  who,  for  the  purpose  of 
advertising  their  businesses  and  increasing 
their  sales,  inclose  in  the  packages  in  which 
the  merchandise  is  put  up  for  market  and 
sale  coupons,  slips,  certificates,  and  other 
profit-sharing  discount  or  premium  tokens. 
The  articles  and  the  persons  and  companies 
producing  them  are  enumerated. 

The  manner  or  method  of  disposing  of 
and  redeeming  and  taking  up  such  coupons, 
etc.,  is  alleged  to  be  that  the  same  are  in- 
closed in  packages  or  the  wrappers  thereof, 
or  ure  a  part  of  the  wrappers,  the  pack- 
ages are  put  into  boxes,  cases,  or  other  re- 
ceptacles or  inclosures  and  shipped  by  the 
manufacturer  or  producer  from  his  place 
of  business  outside  of  Florida  to  the  mer- 
chants in  Florida,  generally  to  a  wholesale 
merchant  or  jobber,  and  are  received  by 
such  in  Florida  and  sold  to  the  retail  mer- 
chants in  that  state.  The  retail  merchant 
sells  tliem  to  his  customers.  When  the  lat- 
ter have  accumulated  a  sufficient  number 
of  the  coupons,  etc.,  to  entitle  them  to  re- 
•0  L.  ed. 


ceive  a  premium  or  article  or  payment 
therefor  according  to  some  list,  catalogue, 
or*  rule  promulgated  by  the  manufacturer, 
producer,  or  original  shipper,  they  send  such 
coupons,  etc.,  to  such  manufacturer,  pro- 
ducer, or  original  shipper,  or,  in  some  in- 
stances, to  a  company  or  agency  in  some 
state  other  than  Florida,  where  they  are  re- 
deemed or  paid,  or  the  articles  which  the 
purchasers  have  selected  are  sent  to  them 
in  consideration  of  such  coupons,  etc.,  or 
for  the  same  and  a  postage  stamp  or  stamps, 
or  a  small  sum  of  money  in  addition  thereto. 
And  this  in  accordance  with  the  contract, 
agreement,  or  sale  made  to  the  purchasers 
by  the  manufacturer,  shipper,  or  producer 
outside  of  the  [347]  state.  And  it  is  al- 
leged that  the  transactions  so  detailed,  the 
manufacture  without  the  state  and  ship- 
ment to  wholesale  merchants  within  the 
state,  the  sale  by  the  latter  to  retail  mer- 
chants, and  by  the  latter  again  to  custom- 
ers, constitute  interstate  commerce. 

That  the  form  of  the  coupons,  etc.,  varies, 
and  when  its  identity  is  secured  as  pre- 
scribed it  is  evidence  that  each  purchaser 
of  a  package  has  bought  a  definite  part  of 
some  article,  to  be  selected  by  him  or  her 
from  a  certain  list,  the  list  showing  a  num- 
ber of  valuable  articles  which  can  be  paid 
for  by  a  certain  number  of  the  tokens  and 
a  two-cent  stamp. 

In  another  case  there  is  an  accumulation 
of  the  tokens  which  are  to  be  sent  to  the 
redemption  or  coupon  agency  or  corpora- 
tion and  exchanged  for  a  valuable  article 
of  merchandise  to  be  selected  by  the  pur- 
chaser from  a  list  or  catalogue  furnished 
him. 

Another  form  of  coupons,  etc.,  is  where 
each  of  them  is  good  for  a  certain  value; 
for  instance,  one-half  cent  in  presents  or 
premiums,  the  coupons  being  sent  from  the 
state  of  Florida  to  another  state.  There 
are  also  other  forms  in  which  the  coupons 
or  tokens  are  to  be  redeemed,  paid  for,  or 
used  in  the  purchase  of  other  articles  of 
merchandise  or  in  the  accumulation  of 
premiums  or  the  like.  All  of  the  articles 
are  known  and  largely  used  as  legitimate 
articles  of  commerce,  and  the  transactions 
detailed  are  interstate  commerce. 

That  divers  forms  of  coupons,  etc.,  in 
connection  with  the  sale  of  merchandise,  are 
used  by  the  merchants  of  the  state  sub- 
stantially in  similar  form  mentioned  above, 
and  the  payment  or  redemption  is  made  by 
the  Florida  merchant  in  Florida,  sometimes 
by  the  delivery  of  some  valuable  article  of 
merchandise;  sometimes  by  the  payment  of 
cash  or  the  allowance  of  credit  on  account 
of  purchases  in  the  nature  of  a  discount,  or 
for  or  on  account  of  a  certain  amount  hav- 
ing been  purchased  of  the  merchant  by  the 


348^860 


SUPREME  OOURT  OF  THE  UNITED  STATES. 


Got.  Teem» 


[348]  customer.  The  tpkens  are  Bometimes 
in  the  form  of  a  cash  r^^ter  slip  or  mem- 
orandum. 

That  the  methods  detailed  are  a  form  of 
advertising  and  the  use  of  such  coupons, 
etc,  induces  purchasers  to  trade  more  large- 
ly with  and  to  make  more  of  their  pur- 
chases from  complainants  on  account  of  the 
additional  inducement  of  such  coupons, 
etc.;  that  they  increase  the  businesses  of 
complainants  and  their  profits,  and  enable 
them  to  carry  and  sell  stocks  of  goods  cov- 
ering the  various  articles  of  merchandise, 
and  are  of  great  importance  and  value  to 
complainants  in  their  several  businesses; 
and  if  they  are  prevented  from  using  them, 
their  businesses  will  be  decreased  to  the 
amount  of  many  thousands  of  dollars. 

That  at  the  time  of  the  passage  of  the 
statute  complainants  had  on  hand  large 
amounts  and  quantities  of  goods,  and  if 
they  are  prevented  from  selling  them  in  the 
manner  detailed  they  will  be  subjected  to 
great  loss  and  damage,  will  be  embarrassed 
and  injured  in  their  businesses,  and  the 
value  of  their  property  destroyed  or  greatly 
lessened. 

That  the  transactions  and  methods  give 
an  additional  value  to  purchasers  and  they 
are  substantially  benefited  thereby.  That 
there  is  no  element  of  gambling  or  chance 
in  the  transactions,  and  nothing  in  them  or 
their  methods  prejudicial  to  the  public 
health,  safety,  morals,  or  welfare. 

That  if  there  is  a  cessation  of  the  trans- 
actions, purchasers  and  customers  who  have 
received  tokens,  but  have  not  accumulated 
a  sufficient  number  of  them,  will  be  unable 
to  have  the  same  redeemed  or  paid,  or  se- 
cure articles  therewith,  lliat  about  500 
merchants  are  similarly  affected  with  com- 
plainants. 

That  certificates  or  tokens  commonly 
called  trading  stamps,  and  so  designated  in 
the  statute,  are  substantially  like  some  of 
the  tokens  hereinbefore  mentioned  and 
[349]  described,  and  when  delivered  by  re- 
tail merchants  with  the  various  articles  sold 
to  purchasers,  such  purchasers  are  entitled 
to  purchase  or  receive  various  valuable  arti- 
cles of  merchandise,  according  to  a  list  or 
catalogue,  upon  the  presentation  of  the 
stamps  to  some  person  or  company  that  has 
issued  the  trading  stamps,  and  that  redeems 
them  according  to  the  provisions  of  such 
list  or  catalogue. 

That  under  the  statute  every  person, 
firm,  or  corporation  offering  with  merchan- 
dise any  coupon,  profit-sharing  certificate, 
or-  other  evidence  of  indebtedness  or  lia- 
bility redeemable  in  premiums,  is  not  only 
liable  to  pay  the  license  tax  for  himself  or 
itself,  but  to  pay  such  tax  for  every  other 
•82 


person,  firm,  or  c<»rporation  who  may  re- 
deem any  such  coupon,  etc. 

That  such  taxes  are  imreaa<mable,  enor- 
mous, and  prohibitive  on  account  of  the 
number  of  articles  sold,  and  by  reason  of 
the  provision  requiring  complainants  and 
each  and  every  other  person  in  like  situa- 
tion to  pay  the  license  tax  to  the  state, 
and  it  is  alleged  with  much  circumstance 
that,  from  their  number  and  the  number 
of  the  articles'  that  each  sells,  each  and 
every  person  would  be  required  to  pay  for 
license  tax  to  the  state  and  for  one  county 
or  one  place  of  business  alone  $15,000  per 
year,  or  one  half  that  amount  for  six 
months  or  less  time. 

That  as  a  result  of  the  statute,  if  the 
tax  be  paid  for  only  100  persons,  or  persons, 
firms,  or  corporations,  it  would  amount  to 
$75,000  per  annum;  if  for  1,000  persons, 
or  persons,  firms,  or  corporations  in  Florida 
for  one  place  of  business,  it  would  amount 
to  $750,000,  and  so  on  as  to  any  number 
to  be  paid  by  and  for  each  and  every  manu- 
facturer, producer,  or  shipper. 

That  such  coupons,  etc.,  inclosed  in  pack- 
ages of  tobacco  and  so  delivered,  are  au- 
thorized and  rendered  lawful  by  §.3394  of 
the  Revised  Statutes  of  the  United  [350] 
States,  as  amended  by  §  10  of  the  act  of 
July  24,  1897. [30  Stat,  at  L.  206,  chap.  11], 
and  by  §  2  of  the  act  of  July  1,  1902  [32 
Stat,  at  L.  715,  chap.  1371,  Comp.  Stat. 
1913,  §  6204],  of  the  sUtutes  of  the  United 
States. 

That  the  provision  of  §  35  (the  provision 
quoted  above)  of  the  Florida  statute  and 
all  provisions  and  enactments  for  its  en- 
forcement are  in  violation  of  the  Constitu- 
tion of  the  United  States  in  that  they  vio- 
late (1)  the  commerce  clause,  (2)  the  due 
process  clause  of  the  14th  Amendment,  and 
(3)  the  equal  protectipn  clause  of  that 
Amendment.  There  are  many  specifications 
of  the  particulars  and  it  is  alleged:  (1) 
The  statute  discriminates  between  mer- 
chants in  similar  lines  of  business.  (2) 
Between  merchants  who  advertise  in  a  cer- 
tain manner  and  those  who  advertise  in  an- 
other manner.  (3)  The  taxes  are  not  upon 
the  business  or  occupation  of  complainants, 
but  upon  the  mere  incidents  of  the  busi- 
ness, and  are  an  unreasonable  and  illegal  in- 
terference with  the  method  and  manner  of 
conducting  the  business.  (4)  The  taxes  are 
unreasonable,  arbitrary,  oppressive,  dis- 
criminatory, and  prohibitory  for  the  rea- 
sons already  detailed,  and  'are  far  in  excess 
of  the  amounts  of  taxes  or  licenses  fixed  or 
imposed  when  other  methods  of  advertising 
or  inducing  custom  are  used,  and  will  pre- 
vent complainants  from  carrying  on  their 
legitimate  business.  (5)  They  are  not  pro- 
ductive of   revenue,  are   in   excess  of   tha 

240  V.  8. 


1915. 


RAST  ▼.  VAN  DEMAN  &  LEWIS  00. 


860,  861 


profits  of  tbe  buBincsses,  and  are  in  fact  pro* 
hibitory.  (6)  That  the  methods  employed 
bj  complainants  in  no  wise  affect  the  public 
health,  morals,  or  welfare,  and  the  imposi- 
tion of  the  taxes  is  in  no  way  a  legitimate 
or  lawful  exercise  of  the  police  power  of 
the  state.  (7)  That  the  fines  are  so  oner- 
ous, drastic,  excessive,  and  enormous  as  to 
deter  complainants  in  going  on  and  doing 
business  as  they  have  heretofore  done,  and 
testing  tbe  ralidity  of  the  statute  in  a  court 
of  law. 

That  by  the  statute  and  in  §  59  thereof 
a  Tiolation  of  its  provisions  is  made  a  mis- 
demeanor, and  it  is  provided  [351]  in  §  35 
that,  for  failure  to  pay  any  of  the  license 
taxes,  any  person,  whether  acting  for  him- 
self or  as  agent  of  another,  may  be  impris- 
oned in  the  county  jail,  not  exceeding  six 
months. 

It  is  further  alleged  that  the  statute  im- 
pairs the  obligations  of  the  contracts  en- 
tered into  between  complainants  and  their 
customers,  in  violation  of  clause  1,  §  10, 
article  I.,  of  the  Constitution  of  the  United 

That  the  officers  of  the  state  threaten  to 
«nforce  the  statute,  and  that  the  staters  at- 
torneys, county  solicitors,  and  prosecuting 
attorneys  of  the  several  circuits  and  coun- 
ties of  the  state  are  respectively  empowered 
and  authorized  to  prosecute  in  the  several 
courts  of  the  state,  and  such  officers  are 
threatening  to  prosecute  divers  of  the  com- 
plainants, and  it  is  alleged  that  a  multi- 
tude of  prosecutions  will  be  instituted,  with 
seizures,  sales,  and  injury  to  property,  if  a 
temporary  restraining  order  be  not  grant- 
4>d.  There  is  a  prayer  for  such  order  and 
for  a  perpetual  injunction. 

A  restraining  order  was  issued.  The  de- 
fendants appeared  specially  and  filed  mo- 
tions to  dismiss  the  suit,  and  as  grounds 
thereof  denied  the  allegations  and  implica- 
tions of  the  bill  as  to  the  various  grounds 
of  infringement  of  the  Constitution  of  the 
United  States  charged  against  the  statute, 
and  set  up  that  complainants  had  a  com- 
plete and  adequate  remedy  at  law.  That 
the  bill  sought  a  restraint  of  the  enforce- 
ment of  a  criminal  statute  of  the  state,  and 
to  enjoin  an  alleged  threaten^  seizure  of 
property  in  the  enforcement  of  the  alleged 
illegal  tax,  and  the  enforcement  of  the  col- 
lection of  a  tax  imposed  by  a  statute  of  the 
atate  of  a  general  and  public  nature. 

A  motion  was  made  for  an  interlocutory 
injunction,  hearing  upon  which  was  referred 
to  three  judges.  Upon  the  hearing  tbe  in- 
junction was  ordered  (214  Fed.  827),  to  re- 
view which  this  appeal  has  been  prosecuted. 
40  L.  ed. 


I  Mr.  Thomas  F.  West,  Attorney  General 
of  Florida,  argued  the  eause  and  filed  a 
brief  for  appellants: 

No  ground  for  equitable  interposition  is 
shown  to  exist  as  against  the  tax  collectors. 

Florida  Packing  &  Ice  Co.  v.  Carney,  49 
Fla.  293,  111  Am.  St.  Rep.  95,  38  So.  602, 
51  Fla.  190,  41  So.  190;  H.  W.  Metcalf  Co. 
v.  Martin,  54  Fla.  531,  127  Am.  St.  llep. 
149,  45  So.  463;  Cruickshank  v.  Bidwell, 
176  U.  S.  73,  80,  44  L.  ed.  377,  380,  20  Sup. 
Ct  Rep.  280;  Cooley,  Taxn.  3d  ed.  pp.  530, 
1411,  1412;  Shelton  v.  Piatt,  139  U.  S.  591, 
85  L.  ed.  273,  11  Sup.  Ct.  Rep.  646;  Allen 
V.  Pullman's  Palace  Car  Co.  139  U.  S.  658, 
85  L.  ed.  803,  11  Sup.  Ct.  Rep.  682;  Pacific 
Exp.  Co.  V.  Seibert,  142  U.  S.  339,  35  L.  ed. 
1035,  3  Inters.  Com.  Rep.  810,  12  Sup.  Ct. 
Rep.  250;  Pittsburgh,  C.  C.  &  St.  L.  R.  Co. 
V.  Board  of  PuUic  Works,  172  U.  8.  32,  48 
L.  ed.  354,  19  Sup.  Ct.  Rep.  90;  Arkansas 
Bldg.  &  L.  Asso.  V.  Madden,  175  U.  8.  269, 
44  L.  ed.  159,  20  Sup.  Ct.  Rep.  119. 

A  statute  may  perform  the  double  func- 
tion of  regulating  the  business  under  the 
police  power,  and  of  producing  revenue,  if 
authorized  by  the  law  of  the  state,  and  this 
is  such  a  statute. 

Harrison  v.  Kersey,  67  Fla.  24,  64  So.  853; 
Bradley  v.  Richmond,  227  U.  S.  477,  57  L. 
ed.  603,  83  Sup.  Ct.  Rep.  818;  Gundling  v 
Chicago,  177  U.  S.  183,  44  L.  ed.  725,  20 
Sup.  Ct.  Rep.  683. 

A  court  of  equity  has  no  jurisdiction  to 
restrain  the  prosecuting  officers  named,  be- 
cause any  action  taken  by  them,  looking  to 
the  enforcement  of  the  provisions  of  this 
statute,  is  a  criminal  proceeding,  and  to  en- 
join them  is  to  enjoin  the  state  from  pro- 
ceeding in  its  own  courts. 

Ex  parte  Nightingale,  12  Fla.  274;  Re 
Sawyer,  124  U.  8.  200,  211,  31  L.  ed.  '402, 
406,  8  Sup.  Ct.  Rep.  482;  FitU  v.  McGhee, 
172  U.  8.  516,  531,  532,  43  L.  ed.  535,  542, 
543,  19  Sup.  Ct.  Rep.  269. 

A  part  of  the  business  conducted  by  the 
appellees  being  wholly  intrastate,  the  en- 
forcement of  the  statute  cannot  violate  the 
commerce  clause  of  the  Federal  Constitu- 
tion. 

Singer  Sewing  Mach.  Co.  v.  Brickell,  233 
U.  S.  304,  58  L.  ed.  974,  84  Sup.  Ct.  Rep. 
498;  Browning  v.  Waycross,  233  U.  8.  16, 
58  L.  ed.  828,  34  Sup.  Ct.  Rep.  578;  Minne- 
sota Rate  Cases  (Simpson  v.  Shepard)  230 
U.  8.  352,  57  L.  ed.  1511,  48  L.R,A.(N.8.) 
1151,  33  Sup.  Ct.  Rep.  729,  Ann.  Cas. 
1916A,  18;  Savage  v.  Jones,  225  U.  S.  501, 
56  L.  ed.  1182,  32  Sup.  Ct.  Rep.  715;  Plum- 
ley  V.  Massachusetts,  155  U.  8.  461,  39  L.  ed. 
223,  5  Inters.  Com.  Rep.  590,  15  Sup.  Ct. 
Rep.  154. 
The  statute  is  not  in  contravention  of  t^-^ 


SUPREME  OOURT  OF  THE  UNITED  STATES. 


Oct.  Tbbm, 


provisions  of  the  14th  Amendment  to  the 
Federal  Constitution. 

State  ▼.  Pitney,  79  Wash.  608,  140  Pac. 
018,  Ann.  Cas.  1916A,  209;  Lansburgh  v. 
District  of  Columbia,  11  App.  D.  C.  512; 
Humes  ▼.  Ft.  Smith,  93  Fed.  857;  Wilder  ▼. 
Quebec,  Rap.  Jud.  Quebec,  25  C.  S.  128; 
Otis  ▼.  Parker,  187  U.  S.  «06,  609,  47  L.  ed. 
323,  327,  23  Sup.  Ct.  Rep.  168;  Central 
Lumber  Co.  v.  South  Dakota,  226  U.  S.  157, 
160,  57  L.  ed.  164,  169,  33  Sup.  Ct.  Rep.  06; 
Purity  Extract  k  Tonic  Co.  v.  Lynch,  226 
U.  S.  192,  204,  205,  57  L.  ed.  184,  188,  189, 
33  Sup.  Ct.  Rep.  44. 

There  is  a  just  basis  for  the  classification 
made  by  this  statute. 

Lindsley  ▼.  Natural  Carbonic  Gas.  Co. 
220  U.  S.  61,  55  L.  ed.  369,  31  Sup.  Ct.  Rep. 
337,  Ann.  Cas.  1912C,  160;  State  v.  Pitney, 
79  Wash.  608,  140  Pac.  918,  Ann.  Cas. 
1916A,  209;  Lansburgh  v.  District  of  Co- 
lumbia, 11  App.  D.  C.  512;  Com.  ▼.  Reinecke 
Coal  Min.  Co.  117  Ky.  885,  79  S.  W.  287; 
Noble  State  Bank  ▼.  Haskell,  219  U.  S.  104, 
111,  55  L.  ed.  112,  116, 32  L.R.A.(N.S.)  1062, 
31  Sup.  Ct.  Rep.  186,  Ann.  Cas.  1912A,  487 ; 
Freund  Pol.  Power,  §  3;  McLean  ▼.  Arkan- 
sas, 211  U.  S.  539,  547,  53  L.  ed.  315,  319, 
29  Sup.  Ct.  Rep.  206;  Bradley  t.  Richmond, 
227  U.  S.  477,  57  L.  ed.  603,  33  Sup.  Ct. 
Rep.  318;  Ferguson  t.  McDonald,  66  Fla. 
496,  63  So.  915;  Afro- American  Industrial 
&  Ben.  Asso.  ▼.  State,  61  Fla.  85,  54  So. 
383;  Peninsular  Industrial  Ins.  Co.  v. 
State,  61  Fla.  376,  55  So.  398;  Peninsular 
Casualty  Co.  v.  State,  68  Fla.  411,  67  So. 
165;  Pullman  Co.  v.  Knott,  235  U.  S.  23,  59 
L.  ed.  105,  35  Sup.  Ct.  Rep.  2;  Citizens' 
Teleph.  Co.  v.  Fuller,  229  U.  S.  322,  57  L. 
ed.  1206,  33  Sup.  Ct  Rep.  833;  Atchison,  T. 
k  S.  F.  R.  Co.  T.  Matthews,  174  U.  S.  96, 
106,  43  L.  ed.  909,  913,  19  Sup.  Ct.  Rep. 
609;  Quong  Wing  T.  Kirkendall,  223  U.  S. 
59,  56  L.  ed.  350,  32  Sup.  Ct.  Rep.  192; 
Patsone  ▼.  Pennsylvania,  232  U.  S.  138,  58 
L.  ed.  539,  34  Sup.  Ct.  Rep.  281 ;  Metropolis 
Theatre  Co.  t.  Chicago,  228  U.  S.  61,  69,  70, 
57  L.  ed.  730,  733,  734,  33  Sup.  Ct.  Rep. 
441;  Atlantic  Coast  Line  R.  Co.  y.  Golds- 
boro,  232  U.  S.  548,  558,  58  L.  ed.  721,  726, 
34  Sup.  Ct  Rep.  364. 

Mr.  Charles  H.  Cooper  argued  the  cause 
and  filed  a  brief  for  appellees: 

The  court  below  had  jurisdiction  of  the 
subject-matter  of  the  bill  of  complaint,  of 
the  parties,  and  to  grant  the  relief  prayed. 

Little  V.  Tanner,  208  Fed.  605;  Ex  parte 
Young,  209  U.  S.  123,  52  L.  ed.  714,  13 
L.R.A.(N.S.)  932,  28  Sup.  Ct.  Rep.  441,  14 
Ann.  Cas.  764 ;  Western  U.  Teleg.  Co.  ▼.  An- 
drews, 216  U.  S.  165,  167,  54  L.  ed.  430,  431, 
30  Sup.  Ct.  Rep.  286;  Ludwig  v.  Western 
U.  Teleg.  Co.  216  U.  S.  146,  152,  164,  54 
•84 


L.  ed.  423,  425,  430,  30  Sup.  Ct  Rep.  280; 
Dobbins  v.  Los  Angeles,  195  U.  S.  223, 242, 49 
L.  ed.  169,  177,  25  Sup.  Ct  Rep.  18;  Home 
Teleph.  k  Teleg.   Co.  v.  Los  Angeles,  227 
U.  S.  278,  57  L.  ed.  510,  33  Sup.  Ct  Rep. 
312;  Harrison  v.  St  Louis  k  S.  F.  R.  Co. 
232  U.  S.  318,  58  L.  ed.  621,  L.R.A.1915F, 
1187,  34  Sup.  Ct.  Rep.  333;   Cleveland  v. 
Cleveland  City  R.   Co.   194   U.  S.  517,  48 
L.  ed.  1102,  24  Sup.  Ct  Rep.  756 ;  Mills  v. 
Chicago,  127  Fed.  732;  Raymond  v.  Chicago 
Union  Traction  Co.  207  U.  S.  20,  37,  38, 
52  L.  ed.  78,  87,  88,  28  Sup.  Ct.  Rep.  7,  12 
Ann.  Cas.  757 ;  Glucose  Ref.  Co.  v.  Chicago, 
138    Fed.    209;    Ozark-Bell    Teleph.    Co.    v. 
Springfield,    140    Fed.    666;    Hewin   v.   At- 
lanta, 121  Ga.  731,  67  L.R.A.  795,  49  S.  K 
765,  2  Ann.  Cas.  296;  Bacon  v.  Rutland  R. 
Co.  232  U.  S.  134,  138,  58  L.  ed.  538,  539, 
34  Sup.  Ct  Rep.  283;  Ohio  River  &  W.  R. 
Co.  V.  Dittey,  232  U.  S.  676,  587,  58  L.  ed. 
738,  743,  34  Sup.  Ct.  Rep.  372;    Fargo  v. 
Hart,  193  U.  S.  490,  503,  48  L.  ed.  761,  767, 
24  Sup.  Ct.  Rep.  498;   Union  P.  R.  Co.  v. 
Cheyenne   (Union  P.  R.  Co.  v.  Ryan)    113 
U.  S.  516,  526,  527,  28  L.  ed.  1098,  1102,  5 
Sup.    Ct.    Rep.    601;    Raymond   v.   Chicago 
Union  Traction  Co.  207  U.  S.  20,  37,  38,  52 
L.  ed.  78,  87,  88,  28  Sup.  Ct.  Rep.  7,  12  Ann. 
Cas.    757;    Cummings   v.   Merchants'    Nat. 
Bank,  101  U.  6.  153,  25  L.  ed.  903;  Croom 
V.   Pennington,   59    Fla.   473,   52   So.    957; 
Louisvillo  k  N.  R.  Co.  v.  Railroad  Comrs. 
(Louisville  k  N.  R.  Co.  v.  Burr)    63  Fla. 
491,  502,  44  L.R.A.(N.S.)    189,  58  So.  543; 
Michigan  C.   R.   Co.  v.  Powers,  201   U.   S. 
245,  290,  291,  50  L.  ed.  744,  760,  761,  26  Sup. 
Ct.  Rep.  459;  San  Francisco  Gas  k  E.  Co. 
V.  San  Francisco,  189  Fed.  943;  Des  Moines 
City  R.  Co.  ▼.  Des  Moines,  151  Fed.  854; 
Wilmington  City  R.  Co.  v.  Taylor,  198  Fed, 
159;  Kankakee  ▼.  American  Water  Supply 
Co.  118  C.  C.  A.  195,  199  Fed.  758;  Linton 
V.  Denham,  6  Fla.  533;  Carter  v.  Bennett, 
6  Fla.  214;  Godwin  v.  Phifer,  51  Fla.  441, 
41    So.    597;    Holt   t.    Hillman-Sutherland 
Co.  56  Fla.  801,  47  So.  934;  Carter  v.  Fort- 
ney,  172  Fed.  722. 

There  is  no  just  or  reasonable  classifica- 
tion upon  which  these  license  taxes  are 
based. 

Little  Y.  Tanner,  208  Fed.  605;  Gulf,  C. 
k  S.  F.  R.  Co.  v.  Ellis,  165  U.  S.  150-159, 
41  L.  ed.  666-669,  17  Sup.  Ct.  Rep.  255; 
Cotting  ▼.  Kansas  City  Stock  Yards  Co. 
(Cotting  V.  Godard)  183  U.  S.  79,  103,  104, 
112,  113,  46  L.  ed.  92,  106,  107,  109,  110, 
22  Sup.  Ct  Rep.  30;  Barbier  v.  Connolly, 
113  U.  S.  27,  31,  28  L.  ed.  923,  924,  5  Sup. 
Ct.  Rep.  357;  Southern  R.  Co.  v.  Greene, 
216  U.  S.  400,  412,  417,  418,  54  L.  ed.  536, 
539,  541,  542,  30  Sup.  Ct.  Rep.  287,  17  Ann. 
Cas.  1247;  Seaboard  Air  Line  R.  Co.  v. 
Simon,  56  Fla.  545,  20  L.R.A.(N.S.)    126, 

240  V.  8. 


1916. 


RAST  ▼.  VAN  DEMAN  &  LBWIS  00. 


47  So.  1001,  16  Ann.  Oat.  1234;  Jaekson- 
Yille  Y.  Ledwith,  26  Fla.  165,  9  L.R.A.  69, 
23  Am.  St.  Rep.  658,  7  So.  886. 

The  allegations  of  the  bill  of  complaint 
as  to  the  character  of  the  business  and  use 
of  such  coupons,  profit-sharing  certificates, 
etc.,  and  that  it  contains  no  element  of 
gambling,  and  that  there  is  nothing  in  con- 
nection therewith  or  in  the  use  of  the  same 
that  is  prejudicial  to  public  health,  safety, 
morals,  or  welfare,  and  that,  in  fact,  there 
is  thereby  given  to  purchasers  either  a  dis- 
count or  an  additional  value  in  premiums 
or  articles,  and  that  the  purchasers  of  such 
articles  of  merchandise  are  substantially 
benefited  thereby,  are  allegations  of  fact 
admitted  by  the  motion  to  dismiss. ' 

American  School  ▼.  McAnnulty,  187  U.  S. 
94,  103,  47  L.  ed.  90,  94,  23  Sup.  Ot  Rep. 
33. 

The  all^ations  that  these  enormous 
license  taxes  which  are  stated  in  detail  in 
the  bill  of  complaint,  with  detailed  state- 
ments of  facts  showing  that  they  are  neces- 
sarily prohibitory,  and  followed  up  by  the 
positive  allegations  in  the  bill,  not  as  mat- 
ters of  opinion  and  conclusion,  but  as  ulti- 
mate facts,  that  said  license  taxes,  if  en- 
forced, will,  in  fact,  preclude  and  prevent 
complainants  and  all  persons  in  like  situa- 
tion, using  such  coupons,  profit-sharing  cer- 
tificates, etc.,  from  doing  such  business,  and 
that,  in  fact,  they  are  prohibitory  and  will 
produce  no  revenue,  and  in  fact  are  not 
imposed  for  the  purpose  of  revenue  or  tax- 
ation, are  all  allegations  of  fact  which  are 
admitted  by  the  motion  to  dismiss. 

St.  Louis  T.  Knapp,  S.'  &  Oo.  104  U.  S. 
658,  661,  26  L.  ed.  883,  884. 

The  allegation  of  the  intent  or  purpose 
with  or  for  which  a  thing  was  done  is  an 
allegation  of  fact,  not  an  opinion  or  con- 
clusion. Thus,  a  mere  general  allegation 
that  a  certain  act  was  fraudulent  may  be 
merely  a  matter  of  opinion  or  conclusion; 
but  an  allegation  that  something  was  done 
with  the  intent  to  defraud,  especially  where 
connected  with  other  allegations  as  t6  the 
facts,  is  not  a  statement  of  a  conclusion  or 
opinion,  but  is  the  statement  of  a  fact 
which  is  admitted  by  demurrer  or  motion. 

Piatt  V.  Mead,  9  Fed.  91. 

Such  pretended  classification  and  such 
attempted  license  taxes  on  account  of  using 
coupons,  certificates,  or  the  like,  as  made 
in  this  case,  are  unconstitutional  and  void. 

Ex  parte  Hutchinson,  137  Fed.  950; 
Humes  v.  Little  Rock,  138  Fed.  929;  Sperry 
k  H.  Oo.  V.  Tacoma,  190  Fed.  682;  O'Keeffe 
V.  Somerville,  190  Mass.  110,  11^  Am.  St. 
Rep.  316,  77  N*  E.  457,  5  Ann.  Oas.  684; 
Opinion  of  Justices,  207  Mass.  606,  94  N.  E. 
846;  Ex  parte  Drexel,  147  Oal.  763,  2  L.R.A. 
(N.6.)  688,  82  Pao.  429,  3  Ann.  Oas.  878; 
••  li.  ed. 


People  V.  Oillson,  109  N.  Y.  889,  4  Am.  St. 
Rep.  465,  17  N.  E.  343;  Hewin  v.  Atlanta, 
121  Ga.  731,  67  L.RJL  795,  49  S.  B.  765, 
2  Ann.  Oas.  296;  Montgomery  t.  Kelly,  142 
Ala.  652,  110  Am.  St  Rep.  48,  38  So.  67; 
Denver  v.  Frueauff,  39  Oolo.  20,  7  L.RjL 
(NJS.)  1131,  88  Pac.  389,  12  Ann.  Oas.  521; 
State  V.  Dalton,  22  R.  I.  77,  48  L.R.A.  775, 
84  Am.  St.  Rep.  818,  46  Atl.  284;  State 
V.  Dodge,  76  Vt.  197,  56  Atl.  983,  1  Ann. 
Oaa.  47;  State  ex  rel.  Simpson  v.  Sperry  ft 
H.  Oo.  110  Minn.  378,  30  LJl.A.(N.S.)  966, 
126  N.  W.  120;  Young  t.  Oom.  101  Va.  863, 
46  S.  B.  827 ;  Winston  v.  Beeson,  135  N.  0. 
271,  66  L.R Jl.  167,  47  S.  E.  457 ;  People  ex 
rel.  Appel  t.   Zimmerman,   102  App.   Div. 

103,  92  N.  Y.  Supp.  497;  Ex  parte  Mc- 
Kenna,  126  Oal.  429,  58  Pac.  916;  State  v. 
Ramseyer,  73  N.  H.  31,  58  Atl.  958,  6  Ann. 
Oaa.  445;  State  t.  Shugart,  138  Ala.  86, 
100  Am.  St.  Rep.  17,  86  So.  28;  Long  t. 
State,  74  Md.  566,  12  L.RJl.*426,  28  Av:. 
St.  Rep.  268,  22  Atl.  4. 

The  imposition  of  the  Ifcense  taxes  is  In 
no  way  a  legitimate  exercise  of  any  police 
power  of  the  state. 

New  Orleans  Gaslight  Oo.  t.  Louisiana 
Light  &  H.  P.  A  Mfg.  Oo.  115  U.  S.  650, 
661,  29  L.  ed.  616,  620,  6  Sup.  Ot  Rep.  252 ; 
Dobbins  v.  Los  Angeles,  195  U.  S.  224,  239, 
49  L.  ed.  169,  176,  25  Sup.  Ot  Rep.  18; 
Gulf,  0.  &  S.  F.  R.  Oo.  V.  Ellis,  165  U.  S. 
150-169,  41  L.  ed.  666-669,  17  Sup.  Ot  Rep. 
256;  Ootting  t.  Kansas  Oity  Stock  Yards 
Oo.  (Ootting  T.  Godard)  188  U.  S.  79,  103, 

104,  112,  113,  46  L.  ed.  92,  106,  107,  109, 
110,  22  Sup.  Ot.  Rep.  30;  Barbier  v.  Con- 
noUy,  118  U.  S.  27,  81,  28  L.  ed.  923,  924,  5 
Sup.  Ot.  Rep.  857;  Southern  R.  Oo.  t. 
Greene,  216  U.  S.  400,  412,  417,  418,  54  L. 
ed.  536,  639,  641,  642,  30  Sup.  Ot.  Rep.  287, 
17  Ann.  Oas.  1247. 

The  Florida  statute  violates  the  com- 
merce clause  of  the  Oonstitution  of  the 
United  States. 

Lottery  Oase  (Ohampion  t.  Ames)  188 
U.  S.  821,  351,  354,  47  L.  ed.  492,  499,  600, 
23  Sup.  Ot.  Rep.  321,  13  Am.  Orim.  Rep. 
661 ;  Dozier  v.  Alabama,  218  U.  S.  124,  127, 
128,  54  L.  ed.  966,  966,  967,  28  L.R.A.(N.S.) 
264,  30  Sup.  Ot.  Rep.  649;  Orenshaw  v. 
Aricansas,  227  U.  S.  389,  67  L.  ed.  665,  88 
Sup.  Ot  Rep.  294;  Stewart  v.  Michigan, 
232  U.  S.  666,  58  L.  ed.  786,  34  Sup.  Ot. 
Rep.  476;  Oaldwell  t.  North  Oarolina,  187 
U.  S.  622,  631,  632,  633,  47  L.  ed.  836,  341, 
23  Sup.  Ot.  Rep.  229;  Lyng  t.  Michigan, 
136  U.  S.  161,  34  L.  ed.  150,  3  Inters.  Oom. 
Rep.  143,  10  Sup.  Ot.  Rep.  725;  Orutcher  t. 
Kentucky,  141  U.  S.  47,  36  L.  ed.  649,  11 
Sup.  Ot  Rep.  851;  Brown  v.  Maryland,  12 
Wheat  444,  6  L.  ed.  687. 

The  equal  protection  of  the  laws,  which, 
by  the  14th  Amendment,  no  state  can  denv 


355,  356 


SUPREME  OOURT  OF  THE  UNITED  STATES. 


OoT.  Teem» 


to  the  individual,  forbids  legislation,  in 
whatever  form  it  may  be  enacted,  by  which 
the  property  of  one  individual  is,  without 
compensation,  wrested  from  him  for  the 
benefit  of  another,  or  of  the  public. 

Reagan  v.  Farmers'  Loan  &  T.  Co.  164  U. 
S.  390,  38  L.  ed.  1024,  4  Inters.  Com.  Rep. 
560,  14  Sup.  Ct.  Rep.  1047. 

One  man  cannot  be  required  to  pay  taxes 
for  another,  nor  can  his  property  be  levied 
on  or  sold  to  enforce  collection  of  taxes  for 
another. 

Brown  v.  Snell,  6  Fla.  741. 

Fines  so  great  and  imprisonment  so 
severe  are  fixed  for  nonpayment  of  such 
license  taxes  as  to  intimidate  complainants 
from  continuing  to  do  business  and  testing 
the  validity  of  such  statute  in  a  court  of 
law,  and  therefore  the  provisions  of  the 
statute  are  unconstitutional. 

Ex  parte  Young,  209  U.  S.  123,  148,  52 
L.  ed.  714,  7^4,  13  L.R.A.(N.S.)  932,  28 
Sup.  Ct.  Rep.  441,  14  Ann.  Cas.  764;  Con- 
solidated Gas  Co.  V.  New  York,  157  Fed. 
851. 

The  provisions  of  the  statute  amount  to 
confiscation  of  the  goods  complainants  have 
on  hand  with  inserts  of  coupons,  certificates, 
or  the  like. 

People  ex  rel.  McPike  v.  Van  De  Carr, 
178  N.  Y.  425,  66  LJELA.  189,  102  Am.  St. 
Rep.  516,  70  N.  E.  965;  People  ex  rel.  Ap- 
pel  V.  Zimmerman,  102  App.  Div.  103,  92 
N.  Y.  Supp.  497. 

Such  license  taxes,  upon  the  face  thereof, 
are  so  exorbitant,  onerous,  and  unreason- 
able, as  to  be  manifestly  prohibitory  and 
void. 

Postal  Teleg.  Cable  Co.  v.  Taylor,  192  U. 
S.  64,  48  L.  ed.  342,  24  Sup.  Ct.  Rep.  208 ; 
Humes  v.  Little  Rock,  138  Fed.  929;  Ex 
parte  Hutchinson,  137  Fed.  949,  950. 

The  provisions  of  the  statute  are  contrary 
to  the  provisions  of  the  Constitution  of  the 
United  States  against  impairing  the  obliga- 
tion of  contracts. 

Humes  v.  Little  Rock,  138  Fed.  929;  Ex 
parte  Drexel,  147  Cal.  763,  2  L.R.A.(N.S.) 
588,  82  Pac.  429,  3  Ann.  Cas.  878;  Collins 
V.  New  Hampshire,  171  U.  S.  30,  33,  43  L. 
ed.  60,  61,  18  Sup.  Ct.  Rep.  768. 

In  its  virtual  prohibition  of  tobacco- 
insert  coupons,  certificates,  or  the  like,  the 
Florida  statute  is  contrary  to  the  statutes 
of  the  United  States  which  authorize  such 
insertions. 

McDermott  v.  Wisconsin,  228  U.  S.  115, 
57  L.  ed.  754,  47  L.RJl.(N.S.)  984,  33  Sup. 
Ct  Rep.  431,  Ann.  Cas.  1915A,  39;  Bettman 
V.  Warwick,  47  C.  C.  A.  186,  108  Fed.  50; 
M'Culloch  V.  Maryland,  4  Wheat.  436,  4  L. 
ed.  608. 
•86 


Mr.  Justice  McKenna,  after  stating  the 
case  as  above,  delivered  the  opinion  of  the 
court : 

It  was  determined  that  the  bill  set  forth 
grounds  of  equitable  relief;  that  the  con- 
dition of  complainants'  businesses  and  of 
the  property  engaged  in  them  was  such  that 
the  statute,  if  exerted  against  complainants 
and  their  property,  would  produce  irrepar- 
able injury,  citing  Ex  parte  Young,  209  U. 
S.  123,  52  L.  ed.  714,  13  L.RJl.(N.S.)  932, 
28  Sup.  Ct.  Rep.  441,  14  Ann.  Cas.  764; 
Dobbins  v.  Los  Angeles,  195  U.  S.  223,  49 
L.  ed.  169,  25  Sup.  Ct.  Rep.  18;  Davis  & 
F.  Mfg.  Co.  V.  Los  Angeles,  189  U.  S.  207, 
47  L.  ed.  778,  23  Sup.  Ct.  Rep.  498.  We 
concur  in  this  view. 

Passing  on  the  constitutional  questions  in- 
volved, the  [356]  court  was  of  opinion  that 
the  statute  violated  the  14th  ijnendment, 
and  considered  it  unnecessary  to  decide 
whether  there  was  an  interference  with  in- 
terstate conunerce. 

It  is  not  entirely  clear  upon  what  clause 
of  the  14th  Amendment  the  court  rested  its 
judgment.  The  equality  clause  was  selected 
for  special  comment.  After  stating  the  limi- 
tation upon  legislation  and  the  power  of 
classification,  the  court  proceeds  to  say: 
"Is  there  a  just  basis  for  the  classification 
attempted  in  this  section  [§  35]  of  the  act? 
Merchants,  etc.,  all  pay  a  tax  according  to 
the  value  of  the  stock  carried  by  each,  but 
if  they  sell  goods  for  which  coupons,  etc., 
are  given  by  themselves  or  others,  then  they 
must  pay  this  additional  tax  for  each  place 
of  business  in  each  and  every  county  in 
which  said  business  is  conducted  or  carried 
on.  And  if  goods  are  offered  for  sale  with 
which  coupons  are  given,  redeemable  by 
persons  other  than  the  seller,  then  this  tax 
must  be  paid  by  him  for  each  of  said  lines 
of  goods. 

"We  can  see  no  just  basis  for  such  classi- 
fication. It  is  an  arbitrary  selection  of  one 
merchant  for  the  imposition  of  a  'greater 
burden'  than  that  imposed  on  others  in  the 
same  calling  and  condition."  [214  Fed.  833.] 

But  the  court  went  farther  and  declared 
that  "the  use  of  coupons,  etc,  was  an  en- 
tirely legitimate  method  of  advertising," 
and  that  such  had  been  the  ruling  in  state 
cases  which  were  cited.  And  excluding  the 
application  of  cases  adduced  by  defendants 
to  sustain  the  statute  as  an  exercise  of  the 
police  power  of  the  state,  the  court  said: 
"As  before  pointed  out,  this  coupon  busi- 
ness is  legitimate,  in  no  way  affecting  the 
health  or  morals  of  the  community." 

Though  it  is  not  clear,  as  we  have  said, 
certainly  not  explicit  in  the  opinion  of  the 
court,  whether  it  decided  the  due  process 
clause  as  well  as  the  equal  protection  clause 
of  the  14th  Amendment  was  violated  by  the 

240  U.  8. 


1915. 


RAST  T.  VAN  DEMAN  k  LEWIS  00. 


S67-^l^ 


statute,  [357]  we  may  assume  that  the  yio- 
lation  of  both  was  decided.  It  may  be  that 
the  court  thought  that  even  though  the  use 
of  coupons  was  a  legitimate  method  of  ad- 
vertising, and  not  affecting  the  health  or 
morals  of  the  community,  it  was  neverthe- 
less within  the  power  of  Uie  state  to  license 
if  the  statute  were  free  from  discrimina- 
tion, or  it  may  be  that  the  court  considered 
that  the  two  grounds  interlocked  and  were 
dependent  upon  the  same  reasoning.  How- 
ever, the  two  grounds  may  be,  indeed  must 
be,  taken  into  consideration,  as  they  are 
submitted  for  decision. 

The  groimd  of  discrimination,  simply  and 
separated  from  the  other  attacks  upon  the 
statute,  does  not  present  much  difficulty. 
Tlie  difference  between  a  business  where 
coupons  are  used,  even  regarding  their  use 
as  a  means  of  advertising,  and  a  business 
where  they  are  not  used,  is  pronounced. 
Complainants  are  at  pains  to  display  it. 
The  legislation  which  regards  the  difference 
is  not  arbitrary  within  the  rulings  of  the 
cases.  It  is  established  that  a  distinction 
in  legislation  is  not  arbitrary,  if  any  state 
of  facts  reasonably  can  be  conceived  that 
would  sustain  it,  and  the  existence  of  that 
state  of  facts  at  the  time  the  law  was  en- 
acted must  be  assumed.  Lindsley  v.  Nat- 
ural Carbonic  Gas  Co.  220  U.  S.  61,  78,  55 
L.  ed.  369,  31  Sup.  Ct.  Rep.  337,  Ann.  Cas. 
1912C,  160.  It  makes  no  difference  ihkt  the 
facts  may  be  disputed  or  their  effect  op- 
posed by  argument  and  opinion  of  serious 
strength.  It  is  not  within  the  competency 
of  the  courts  to  arbitrate  in  such  con- 
trariety. Chicago,  B.  ft  Q.  R.  Co.  t.  Mc- 
Guire,*219  U.  S.  549,  55  L.  ed.  828,  81  Sup. 
Ct.  Rep.  259;  German  Alliance  Ins.  Co.  ▼. 
Lewis,  233  U.  S.  389,  413,  414^  58  L.  ed. 
1011,  1022,  1023,  L.R.A.1915C,  1189,  84 
Sup.  Ct.  Rep.  612;  Price  v.  Illinois,  238  U. 
S.  446,  452,  59  L.  ed.  1400,  1405,  85  Sup. 
Ct.  Rep.  892. 

It  is  the  duty  and  function  of  the  legis- 
lature to  discern  and  correct  evils,  and  by 
evils  we  do  not  mean  some  definite  injury, 
but  obstacles  to  a  greater  public  welfare. 
Eubank  v.  Richmond,  226  U.  S.  187,  142,  57 
L.  ed.  156,  158,  42  L.RJi.(N.S.)  1123,  88 
Sup.  Ct.  Rep.  76,  Ann.  Cas.  191 4B,  192; 
Sligh  ▼.  Kirkwood,  287  U.  S.  52,  59,  59  L. 
ed.  835,  837,  85  Sup.  Ct.  Rep.  501.  And, 
we  repeat,  "it  may  make  discriminations  if 
founded  on  distinctions  that  we  cannot  pro- 
nounce unreasonable  and  purely  arbitrary." 
Quong  [358]  Wing  v.  Kirkendall,  223  U.  S. 
59,  62,  56  L.  ed.  350,  351,  32  Sup.  Ct.  Rep. 
192,  and  the  cases  cited  above. 

Of  course,  an  element  to  be  considered  is 
the  authority  of  the  legislature  over  the 
subject-matter,  and  this  will  best  be  exam- 
ined in  considering  the  contentions  of  com- 
•0  li.  ed. 


plainants  under  the  due  process  clause. 
Preceding  that,  however,  are  the  contentions- 
based  on  the  commerce  clause  and  the  sanc- 
tion whidi  the  Constitution  gives  to  the 
integrity  of  contracts. 

First,  as  pertinent  to  our  discussion  are 
the  specific  schemes  at  which,  it  is  said,  the 
statute  is  directed,  and  we  adopt  complain- 
ants' description  of  them.  The  first  is> 
"where  the  Florida  merchant  issues  his  own 
coupon,  certificate,  or  cash  register  receipt^ 
and  himself  makes  payment  or  redemption 
of  the  same,  sometimes  by  tiie  delivery  of 
some  valuable  article  of  merchandise,  some- 
times by  the  payment  of  cash  or  allowance 
of  credit  on  account  of  purchases,  being  in 
the  nature  of  a  discount,  or  for  or  on  ac- 
count of  a  certain  amount  having  been 
purchased  of  the  merchant  by  the  cus- 
tomer." In  a  word,  it  is  a  case  where  the 
Florida  merchant  issues  his  own  coupons 
and  redeems  them. 

The  second  is  "where  the  manufacturer 
or  shipper  outside  of  the  state  of  Florida, 
in  some  other  state  of  the  Union,  inserts 
such  coupons  or  certificates  in  packages  of 
his  goods  which  he  shiifB  to  Florida,  and 
the  ultimate  purchaser  or  consumer  takes 
such  coupons  or  certificates  from  such  pack- 
ages and  returns  them  to  such  manufac- 
turer or  shipper  in  such  state  outside  of 
Florida,  who  gives  a  premium  for  them  and 
sends  such  premium  or  proceeds  of  redemp- 
tion to  such  ultimate  purchaser  or  con- 
sumer in  Florida  who  has  forwarded  to  him 
such  coupons  or  certificates."  The  mer- 
chandise so  shipped  into  Florida  is  kept 
in  stock  by  the  merchants  of  the  state, 
and  the  coupons,  etc.,  ate  delivered  upon  the 
sale  of  the  merchandise  to  their  customers, 
who  have  them  redeemed  in  the  [369] 
manner  described.  That  is,  the  coupons  are 
redeemed  by  the  person  who  originally  is- 
sues them;  the  coupons,  however,  to  repeat, 
being  delivered  by  the  Florida  merchant  aa 
a  part  of  the  transaction  between  him  and 
the  purchaser  from  him  at  retail. 

The  third  is  "where  the  manufacturer  or 
shipper  in  a  state  other  than  Florida  in- 
serts in  the  packages  of  his  goods  which  he 
ships  to  Florida  such  coupons  or  certificates 
which  are  taken  from  the  packages  by  the 
ultimate  purchaser  or  consumer  in  Florida 
and  sent  to  some  company  or  agency  in 
some  state  of  the  United  States  outside  of 
the  state  of  Florida  other  than  the  manu- 
facturer or  shipper  of  the  goods,  to  be  re- 
deemed or  paid,  and  the  premium  or  pro- 
ceeds thereof  is  returned  by  such  company 
or  agency  to  the  person  in  Florida  who  has 
sent  such  coupons  or  certificates."  This 
differs  from  the  other  two  cases  in  that  a 
premium  company  or  agency  other  than  the 
manufacturer  or  shipper  himself   is  used 


859-302 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct. 


for  the  redemption  or  payment  of  the  cou- 
pons or  certificates.  But  here  again  the 
Florida  merchant  is  a  factor  because  it  is 
in  completion  of  the  sale  by  him  at  retail 
that  the  coupons  are  delivered  to  the  pur- 
chasers. 

We  are  careful,  by  much  repetition,  to 
show  the  di£ference  between  the  cases,  to  dis- 
tinguish between  the  premium  systems,  and 
to  show,  as  urged  by  counsel,  that  this  case 
is  not  concerned  with  a  license  tax  upon  a 
tracing  stamp  business  pure  and  simple, 
a  license  upon  companies  engaged  in  such 
business  being  provided  by  another  section 
of  the  statute.  ^ 

It  is  well  here  to  observe,  to  avoid  mis- 
understanding, that  the  redemption  in  the 
first  scheme  is  **soTneHmes  hy  the  payment 
of  caeh  or  cUlotcance  of  credit  on  account  of 
[360]  purchaaea  or  for  or  on  account  of  a 
certain  amount  having  been  purch<ieed  of 
the  merchant  by  the  customer,**  We  are  not 
concerned  with  a  statute  directed  solely  at 
such  method  of  redemption  or  a  business 
so  confined.  The  Florida  statute  imposes 
its  license  tax  on  coupons,  etc.,  ''redeem- 
able in  premiums."*  And  therefore,  whether 
any  other  method  of  redemption — be  it  by 
giving  a  discount  or  an  allowance  of  credit 
simply — would  be  amenable  to  objection,  we 
express  no  opinion.  In  all  of  the  schemes 
other  methods  of  redemption  are  used  and 
are  attempted  to  be  justified. 

With  this  comment  we  may  say  that  all 
of  the  schemes  have  a  common  character, — 
something  is  given  besides  that  which  is  or 
is  supposed  to  be  the  immediate  incentive 
to  the  transaction  of  sale  and  purchase, — 
something  of  value  given  other  than  it;  and 
even  as  to  the  second  and  third  schemes,  the 
transactions  are  only  executed  through  the 
purchase  at  retail.  In  other  words,  they 
are  not  designed  for  or  executed  through  a 
sale  of  the  original  package  of  importation, 
but  in  the  packages  of  retail  and  sale  to 
the  individual  purchaser  and  consumer. 
Ill  is  fixes  their  character  as  transactions 
within  the  state,  and  not  as  transactions  in 
interstate  commerce,  and  this  is  conceded 
as  to  the  first  scheme;  it  is  true  as  to  the 
second  and  third  schemes.  All  of  the 
schemes  have  their  influence  and  effect  with- 
in the  state.  Nor  is  such  influence  and  ef- 
fect changed  or  lessened  by  the  redemption 
of  the  tokens  outside  of  the  state. 

The  transactions,  therefore,  are  not  in 
interstate  conunerce.  The  sales,  as  we  have 
said,  are  not  in  the  packages  of  that  com- 

i  "Sec.  65.  Trading  stamp  firms :  Persons 
or  firms  or  corporations  known  as  trading 
stamp  companies  shall  pay  a  state  license 
tax  of  one  thousand  ($1,000)  dollars  in 
each  county  whera  they  transact  any  buai- 


€SS 


merce;  they  are  essentially  local  salci^ 
schemes  consummated  by  such  sales,  and  it 
is  upon  them  and  on  account  of  their  effeoA 
that  the  statute  has  imposed  its  licenJBe  tax, 
and  not  upon  the  shipment  into  the  state 
nor  their  disposition  in  the  packages  of  im- 
portation. Of  course,  there  is  shipment  to 
Florida  merchants,  but  [361]  for  the  dis- 
position of  the  merchandise  in  retail  trade. 
Ihe  schemes  contemplate  such  disposition 
and  are  executed  by  it.  Detach  the  importi^ 
tions  from  the  retail  sale,  consider  only  the 
transportation  to  the  state  of  merchandiee 
in  its  original  package,  being  sold  therein 
in  such  package,  and  there  may,  indeed,  be 
interstate  commerce;  but  so  detached  and 
so  considered  the  importations  are  left  with- 
out purpose,  the  schemes  without  execution. 
Indeed,  complainants  contend  for  the  right 
not  only  of  importations  in  the  original 
package  containing  the  coupons,  but  the  die- 
position  of  the  goods  and  coupons  througli 
the  retail  merchant.  This,  we  repeat,  has 
no  protection  in  the  commerce  clause. 

Nor  is  the  regulation  of  the  statute  pro- 
hibited by  §  3394  of  the  Revised  Statutes  of 
the  United  States  as  amended  in  1897  [80 
Stat,  at  L.  206,  chap.  11]  and  1902  [32 
Stat,  at  L.  715,  chap.  1371,  Comp.  Stat. 
1913,  §  6204].  Section  3394  providee  for 
a  tax  on  cigars  and  cigarettes.  By  the 
amendment  of  1897  it  was  forbidden  to  pack 
in,  attach  to,  or  connect  with  any  package 
of  tobacco  or  cigarettes  anything  but  the 
wrappers,  and  it  was  further  provided  that 
there  should  not  be  afl&xed  to,  or  branded, 
stamped,  marked,  written,  or  printed  upon 
the  packages  or  their  contents  any  promiae 
or  offer  of,  or  any  order  or  certifiate  for, 
any  gift,  prize,  premium,  payment,  or  re- 
ward. This  provision  upset  the  practice  <rf 
manufacturers,  and  was  attacked  on  the 
groimd  that  it  was  beyond  the  power  of 
Congress  under  the  Constitution  to  enact, 
the  prohibited  practice  being  a  method  of 
advertising.  The  provision  was  sustained. 
Felsenheld  v.  United  States,  186  U.  S.  126, 
46  L.  ed.  1085,  22  Sup.  Ct.  Rep.  740,  aflSrm- 
ing  103  Fed.  453.  In  1902  the  paragraph 
containing  the  provision  was  amended  ao 
as  to  forbid  the  inclosure  or  attachment 
to  the  packages  of  "any  paper,  certificate^ 
or  instrument  purporting  to  be  or  repreaent 
a  ticket,  chance,  share  or  interest  in,  or 
dependent  upon  the  event  of  a  lottery, 
[362]  nor  any  indecent  or  immoral  pietun^ 
representation,  print  or  words." 

Let  it  be  granted  that  this  proTiaion  per- 
mitted the  inclosure  in  the  padcage  of  to- 
bacco of  tokens  of  the  character  with  whidi 
this  case  is  concerned.  It  goes  no  farther 
nor  does  it  purport  to  go  farther.  It  doea 
not  attempt  to  protect  and  enforce  the  per- 
mission to  the  retail  salea  of  packagee  in 

240  tr.  8. 


1915. 


RAST  T.  VAN  DEMAN  &  LEWIS  00. 


362-3M 


tli«  state.  It  might  not  legally  hare  lueh 
effect  if  attempted;  and  aueh  attempt  will 
not  lightly  be  inferred.  Savagv  ▼.  Jones,  225 
U.  &  501»  56  L.  ed.  1182,  82  Sup.  Ct.  Rep. 
715;  Standard  Stodc  Food  Oo.  t.  Wright, 
225  U.  S.  540,  58  L.  ed.  1107,  82  Sup.  Ct. 
Rep.  784.  The  statute  of  Florida  does  not 
seek  to  control  the  interstate  transportation 
of  the  packages;  it  controls  only  their  sale 
in  the  state  through  the  retail  merchant, 
^r,  it  may  be,  directly  to  •  the  individual 
consumer  lor  the  purpose  described,  and  in 
both  cases  for  the  ultimate  redemption  of 
the  tokens  delivered  with  the  sale. 

McDermott  v.  Wisoonsin,  228  U.  8.  115, 
57  L.  ed.  754,  47  L.RJL(N.8.)  984,  88  Sup. 
Ct.  Rep.  431,  Ann.  Cas.  1915A,  39,  is  not 
applicable.  There  Congress,  for  the  effective 
execution  of  the  food  and  drugs  act,  de- 
fined what  the  "package"  of  oommeroe 
should  be,  and  necessarily  any  law  which 
conflicted  with  it  was  void.  In  the  case 
at  bar  there  is  no  such  definition.  There 
is  only  permission  to  insert  in  the  package 
whatever  the  manufacturer  of  tobacco  may 
choose,  with  a  single  exception.  There  is 
no  compulsion  of  use,  and  omission  to  avail 
of  the  permission  has  no  effect  upon  the 
purpose  of  Congress  in  the  enactment  of  the 
revenue  laws  which  provide  for  the  packing 
of  tobacco  products. 

The  contract  clause  of  the  Constitution 
is  also  unavailable  to  complainants.  The 
statute  must  be  held  to  have  prospective 
operation.  Sales  completed  before  its  en- 
actment are  unaffected  by  it.  We  say  "sales 
completed,"  and  by  this  we  mean  those  in 
which  the  right  of  redemption  according  to 
some  of  the  schemes  has  accrued  as  distin- 
guished from  what  is  alleged  in  the  bill  as 
"the  [363]  understanding  and  expectation" 
arising  from  one  or  more  sales  that  com- 
plainants would  continue  to  sell  to  such 
purchasers  other  articles  so  that  they  might 
be  able  to  accumulate  tokens  and  use  them. 
It  cannot  be  said  that  there  is  an  obligation 
to  continue  sales  or  an  obligation  to  con- 
tinue purchases.  Besides,  as  the  business 
is  subject  to  regulation,  the  contracts  made 
in  its  eonduct  are  subject  to  such  regula- 
tion. Louisville  &  N.  R  Co.  v.  Mottley,  219 
U.  8.  487,  55  L.  ed.  297,  34  L.R.A.(N.S.) 
671,  81  Sup.  Ct.  Rep.  265,  and  New  York 
0.  &  H.  R  R.  Co.  V.  Gray,  239  U.  S.  583, 
ante,  451,  36  Sup.  Ct.  Rep.  176. 

Having  disposed  of  the  other  contentions 
of  complainants,  we  are  brought  to  a  con- 
sideration of  the  question  whether  the  stat- 
ute of  Florida  offends  the  due  process  clause 
of  the  14th  Amendment  of  the  Constitution. 
In  other  words,  does  the  statute  interfere 
with  the  business  liberty  of  complainants? 
Is  it  an  illegal  meddling  with  a  lawful 
calling  and  a  deprivation  of  freedom  of 
•0  I^  ed. 


contract?  This  is  the  contention,  and  it  is 
attempted  to  be  supported  hy  the  assertion 
that  the  schemes  detailed  in  the  bill  are 
but  a  method  of  advertising,  and,  as  such, 
mere  allurements  to  customers,  not  detri- 
mental in  any  way  to  the  public  health  and 
morals,  nor  obstructive  of  the  public  wel- 
fare; but  are  a  means  of  enterprise,  mere 
incidents  of  the  businesses  of  complainants, 
and  as  beneficial  to  their  customers  as  to 
them.  And  besides,  that  they  are  but  a 
method  of  giving  discount,  practically  in 
some  instances  a  rebate  upon  the  price,  and 
in  othera  an  equivalent  gift  of  some  article 
that  may  attract  the  choice  of  the  pur- 
chaser, the  choice  being  free  and  the  article 
of  definite  utility  and  value. 

These  contentions  have  the  support  of  a 
number  of  cases.  They  are  opposed  by 
others,  not  nearly  so  numerous  as  the  sup- 
porting cases,  but  marking  a  change  of 
opinion.  Both  sets  ef  cases  indicate  by  the 
statutes  passed  upon  a  persistent  legisla- 
tive effort  against  the  schemes  under  review 
or  some  form  of  them,  beginning  in  1880 
and  [364]  repeated  from  time  to  time  until 
the  statute  in  controversy  was  passed  in 
1913.S  In  such  differences  between  judicial 
and  legislative  opinion  where  should  the 
choice  be?  Hint  necessarily  depends  upon 
what  reasoning  judicial  opinion  was  based. 
We  appreciate  the  seriousness  of  the  situa- 
tion. Regarding  the  number  of  the  cases 
only,  they  constitute  a  body  of  authority 
from  which  there  might  well  be  hesitation 
to  dissent  except  upon  clear  compulsion. 

The  foundation  of  all  of  them  is  that  the 
schemes  detailed  are  based  on  an  invio- 
lable right,  that  they  are  but  the  exercise  of 
a  personal  liberty  secured  by  the  Constitu- 
tion of  the  United  States  and  distinguished 
from  other  lawful  exercise  of  business  con- 
tracts and  activity  by  a  method  of  advertis- 
ing and  lawful  inducements  to  an  increased 
custom,  and  that  in  them  there  is  no  ele- 
ment of  chance  or  anything  detrimental  to 
the  public  welfare.  But  there  may  be  par- 
tial or  total  dispute  of  the  propositions. 
And  it  can  be  urged  that  the  reasoning  upon 
which  they  are  based  regards  the  mere  mech- 
anism of  the  schemes  alone,  and  docs  not 
give  enough  force  to  their  influence  upon 
conduct  and  habit,  not  enough  to  their  in- 
sidious potentialities.  As  to  all  of  which 
not  courts,  but  legislatures,  may  be  the  best 
judges,  and,  it  may  be,  the  conclusive 
judges. 

This  may  be  illustrated.    A  lottery  of  it- 


Sit  is  said  that  twenty-three  states  have 
attempted  either  to  prohibit  or  to  license  the 
selling  or  use  of  trading  stamps  and  cou- 
pons. And  there  has  been  like  legislation 
for  the  District  of  Columbia  and  the  terri- 
tory of  HawaiL 
44 


364-367 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Teem^ 


self  is  not  wrong,  may  be  fairer,  having 
less  of  overreaching  in  it,  than  many  of  the 
commercial  transactions  that  the  Constitu- 
tion protects.  All  participants  in  it  have 
an  equal  chance;  there  is  no  admonishing 
caveat  of  one  against  the  other.  And  at  one 
time  it  was  law'ful.  It  came  to  be  con- 
demned by  experience  of  its  evil  influence 
and  effects.  It  is  trite  to  say  that  practices 
harmless  of  themselves  may,  from  [366] 
circiunstanoes,  become  the  source  of  evil  or 
may  have  evil  tendency.  Murphy  v.  Cali- 
fornia, «25  U.  S.  623,  56  L.  ed.  1229,  41 
L.R.A.(N.S.)   163,  32  Sup.  Ct.  Rep.  697. 

But  no  refinement  of  reason  is  necessary 
to  demonstrate  the  broad  power  of  the  legis- 
lature over  the  transactions  of  men.  There 
are  many  lawful  restrictions  upon  liberty 
of  contract  and  business.  It  would  be  an 
endless  task  to  cite  cases  in  demonstration, 
and  that  the  supplementing  of  the  sale  of 
one  article  by  a  token  given  and  to  be  re- 
deemed in  some  other  article  has  accompani- 
ments and  effecis  beyond  mere  advertising 
the  allegations  of  the  bill  and  the  argument 
of  coimsel  establish.  Advertising  is  mere- 
ly identification  and  description,  apprising 
of  quality  and  place.  It  has  no  other  ob- 
ject than  to  draw  attention  to  the  article 
to  be  sold,  and  the  acquisition  of  the  article 
to  be  sold  constitutes  the  only  inducement 
to  its  purchase.  The  matter  is  simple, 
single  in  purpose  and  motive;  its  conse- 
quences are  well  defined,  there  being  noth- 
ing ulterior;  it  is  the  practice  of  old  and 
familiar  transactions  and  has  sufficed  for 
their  success. 

The  schemes  of  complainants  have  no  such 
directness  and  effect.  They  rely  upon  some- 
thing else  than  the  article  sold.  They  tempt 
by  a  promise  of  a  value  greater  than  that 
article  and  apparently  not  represented  in 
its  price,  and  it  hence  may  be  thought  that 
thus  by  an  appeal  to  cupidity  lure  to  im- 
providence. This  may  not  be  called  in  an 
exact  sense  a  "lottery,"  may  not  be  called 
"gaming;"  it  may,  however,  be  considered 
as  having  the  seduction  and  evil  of  such, 
and  whether  it  has  may  be  a  matter  of 
inquiry, — a  matter  of  inquiry  and  of  judg- 
ment that  it  is  finally  within  the  power  of 
the  legislature  to  make.  Certainly  in  the 
first  instance,  and,  as  we  have  seen,  its 
judgment  is  not  impeached  by  urging 
against  it  a  difference  of  opinion.  Chicago, 
B.  &  Q.  R.  Co.  V.  McGuire,  219  U.  S.  649, 
66  L.  ed.  328,  31  Sup.  Ct.  Rep.  259,  and 
German  Alliance  Ins.  Co.  v.  Lewis,  233  U. 
S.  389,  68  L.  ed.  1011,  L.R.A.  1915C,  1189, 
34  Sup.  Ct.  Rep.  612.  And  it  is  not  re- 
quired that  we  should  be  sure  as  to  the  pre- 
cise reasons  for  such  judgment,  or  that  we 
should  certainly  know  them  [366]  or  be 
convinced  of  the  wisdom  of  the  legislation. 
690 


Southwestern  Oil  Co.  v.  Texas,  217  U.  S. 
114,  126,  127,  64  L.  ed.  688,  694,  696,  30 
Sup.  Ct.  Rep.  496.  See  also  Munn  v.  IIU- 
nois,  94  U.  S.  113,  132,  24  L.  ed.  77,  86. 

But  it  may  be  said  that  judicial  opin- 
ion cannot  he  controlled  by  legislative  opin- 
ion of  what  are  fundamental  rights.  Ihis- 
is  freely  conceded;  it  is  the  very  essence  of 
constitutional  law,  but  its  recognition  does 
not  determine  supremacy  in  any  given  in- 
stance. "While  the  courts  must  exercise* 
a  judgment  of  their  own,  it  by  no  means  ia 
true  that  every  law  is  void  which  may  seem 
to  the  judges  who  pass  upon  it  excessive,, 
imsuited  to  its  ostensible  end,  or  based  up- 
on conceptions  of  morality  with  which  they 
disagree.  Considerable  latitude  must  be  al- 
lowed for  differences  of  view  as  well  as  for 
possible  peculiar  conditions  which  this- 
court  can  know  but  imperfectly,  if  at  all. 
'  Otherwise  a  constitution,  instead  of  embody- 
ing only  relatively  fundamental  rules  of 
right,  as  generally  understood  by  all  Eng- 
lish-speaking communities,  would  become 
I  the  partisan  of  a  particular  set  of  ethical 
or  economical  opinions,  which  by  no  meana 
are  held  semper  uhique  et  ah  omnihue." 
Otis  V.  Parker,  187  U.  S.  606,  608,  609,  47 
L.  ed.  323,  327,  328,  23  Sup.  Ct.  Rep.  168. 

That  case  illustrated  the  reach  of  the  pow- 
er of  government  to  protect  or  promote  the 
general  welfare.  It  sustained  a  provision 
of  the  Constitution  of  the  state  of  Cali- 
fornia which  made  void  all  contracts  for 
the  sale  of  the  stock  of  corporations  on 
margin  or  to  be  delivered  at  a  future  day. 
The  practice  had  been  common,  its  evil  was 
disputed.  It  was  attempted  to  be  justified 
by  argument  very  much  like  those  advanced 
in  the  case  at  bar,  but  this  court  decided 
that  the  legislative  judgment  was  control- 
ling. 

Even  more  pertinent  in  illustration  of  the 
power  of  the  states  as  unaffected  by  the 
14th  Amendment  is  Central  Lumber  Co.  v. 
South  Dakota,  226  U.  S.  167,  67  L.  ed.  164, 
33  Sup.  Ct.  Rep.  66.  A  statute  of  the  state 
was  sustained  which  provided  that  anyone 
engaged  in  the  manufacture,  production,  or 
distribution  [367]  of  any  commodity  in 
general  use,  who  should  intentionally,  for 
the  purpose  of  destroying  the  competition  of 
any  regular,  established  dealer,  discriminate 
between  different  places  by  selling  such  com- 
modity at  a  lower  rate  in  one  place  than 
such  person  charged  in  another,  siter  equal- 
izing the  distance  from  the  point  of  pro- 
duction, should  be  guilty  of  a  crime.  Free- 
dom of  conduct  was  restricted  by  the  stat- 
ute, which  had  its  incentive  in  trade  advan* 
tages.  It  was  the  judgment  of  the  legisla- 
ture that  such  practice  was  an  impediment 
to  the  public  welfare.  The  l^islative  judg- 
ment  was    sustained   against   the   attack, 

240  U.  8* 


1915. 


TANNER  V.  LITTLE. 


867-^99 


among  others,  that  the  law  was  an  infringe- 
ment  of  freedom  of  conduct  and  contract. 

In  Keokee  Consol.  Coke  Co.  v.  Taylor, 
234  U.  S.  224,  58  L.  ed.  1288,  34  Sup.  Ct. 
Rep.  856,  the  company  issued  scrip  pay- 
able in  merchandise  only  from  its  store  as 
an  advance  of  monthly  wages  in  payment 
of  labor  performed.  A  statute  of  the  state 
(West  Virginia)  prohibited  the  issue  of  any 
order  for  the  payment  of  labor  unless  it  was 
redeemable  in  money.  The  statute  was  as- 
sailed on  the  grotind  that  it  interfered  with 
the  freedom  of  contract.  It  will  be  observed 
that  there  was  a  consideration  for  the  order 
payable  in  merchandise;  it  was  a  payment 
in  advance,  and  hence  it  was  asserted  that 
the  statute  was  an  injury  to  the  employees 
and  employers.  There  were  elements  in  the 
transactions  of  apparent  advantage  to  both, 
and  it  would  seem  to  have  been  within  the 
liberty  of  both  to  contract  upon  an  estimate 
of  the  value  of  that  advantage.  It  was 
deemed  an  evil  by  the  legislature  and  this 
court  sustained  its  judgment. 

In  Erie  R.  Co.  v.  WUliams,  233  U.  S. 
685,  58  L.  ed.  1155,  51  L.R.A.(N.S.)  1097, 
34  Sup.  Ct.  Rop.  761,  a  law  of  the  state 
of  New  York  required  railroad  companies 
to  pay  their  employees  semimonthly,  and 
prohibited  them  from  making  contracts 
which  should  vary  the  time  of  pa3rment. 
The  law  was  sustained  mainly  upon  the 
ground  that  it  was  an  amendment  of  the 
charter  of  the  corporation,  but  the  extent  of 
the  police  power  was  adverted  to  and  the 
competency  [368]  of  the  legislature  exer- 
cising that  power  to  enact  the  legislation. 
The  incentive  of  the  legislation  was  the  ben- 
efit which  accrued  to  the  employees  by  the 
period  of  payment.  The  public  welfare  was 
deemed  to  be  promoted  by  it. 

Other  eases  might  be  cited,  and,  it  may 
be,  of  more  pertinent  application,  which, 
from  their  number  and  instances,  would 
seem  to  have  uttered  the  last  necessary 
word  upon  the  power  of  the  legislature  to 
regulate  conduct  and  contracts,  and,  in  the 
exercise  of  the  power,  to  classify  objects, 
upon  its  conception  of  the  public  welfare, 
the  right  of  review  to  be  exerted  by  the 
courts  only  when  the  legislation  is  unrea- 
sonable or  purely  arbitrary. 

Complainants  allege  that  the  license  tax 
which  the  statute  imposes  is  of  prohibitory 
character,  and  assert  that  they  are  exercis- 
ing inviolable  rights  and  privileges  which 
the  excess  of  the  tax  prevents  in  violation 
of  the  14th  Amendment;  they  contend  that 
hence  the  statute  is  invalid. 

It  is  not  certain  from  the  allegations  of 
the  bill  that  the  tax  is  of  the  asserted  char- 
acter, but  granting  it  to  be  so,  we  have 
shown  that  the  business  schemes  described 
in  the  bill  are  not  protected  from  regulation 
•0  li.  ed. 


I  or  prohibition  by  the  Constitution  of  the 
■  United  States.  Lawton  v.  Steele,  152  U. 
S.  133,  38  L.  ed.  385,  14  Sup.  Ct.  Rep.  499; 
Booth  V.  Illinois,  184  U.  S.  425,  46  L.  ed. 
623,  22  Sup.  Ct.  Rep.  425;  Otis  v.  Parker, 
187  U.  S.  606,  47  L.  ed.  323,  23  Sup.  Ct. 
Rep.  168;  see  also  Dobbins  v.  Los  Angeles, 
195  U.  S.  238,  49  L.  ed.  176,  25  Sup.  Ct. 
Rep.  18;  Murphy  v.  California,  225  U.  S. 
623,  56  L.  ed.  1229,  41  L.R.A.(N.8.)  153, 
32  Sup.  Ct.  Rep.  697;  Postal  Teleg.  Cable 
Co.  V.  Charleston,  153  U.  S.  699,  38  L.  ed. 
874,  4  Inters.  Com.  Rep.  637,  14  Sup.  Ct. 
Rep.  1094;  McCray  v.  United  States,  195 
U.  S.  27,  49  L.  ed.  78,  24  Sup.  Ct.  Rep. 
769,  1  Ann.  Cas.  561;  Kehrer  v.  Stewart, 
197  U.  S.  60,  49  L.  ed.  663,  25  Sup.  Ct. 
Rep.  403;  Hammond  Packing  Co.  v.  Mont- 
ana, 233  U.  S.  331,  58  L.  ed.  985,  34  Sup. 
Ct.  Rep.  596. 

The  contention  that  the  statute  intimi- 
dates against  a  contest  of  its  legality  by 
the  severity  of  its  penalties,  and  is  therefore 
unconstitutional  on  that  ground,  within  the 
ruling  in  Ex  parte  Young,  209  U.  S.  123, 
52  L.  ed.  714,  13  L.R.A.(N.S.)  932,  28  Sup. 
Ct.  Rep.  441,  14  Ann.  Cas.  764,  is  not  justi- 
fied. 

Order  reversed  and  case  remanded  with 
directions  to  dismiss  the  bilL 


[369]  W.  V.  TANNER,  as  Attorney  Gener- 
al of  the  State  of  Washington,  Qeorge  H. 
Crandall,  Prosecuting  Attorney  of  Spo- 
kane County,  State  of  Washington,  and 
£.  W.  Evenson,  County  Treasurer  of  Spo- 
kane County,  State  of  Washington, 
Appts., 

V. 

JOHN  T.  LITTLE,  August  Stahlberg,  Law- 
rence  Ryan,  and  William  T.  Oathout,  Do- 
ing Business  as  Ryan  and  Oathout,  et  al. 

(See  S.  C.  Reporter's  ed.  369-386.) 

Federal  ooarts  —  enjoining  state  officers 
—  civil  or  criminal  proceedings. 

1.  The  threatened  enforcement  by  state 
officers  through  civil  or  criminal  proceed- 
ings of  a  state  statute  which  is  attacked  as 
repugnant  to  the  Federal  Constitution  may 
be  enjoined  by  a  Federal  court,  where  the 
statute,  if  exerted  against  complainants 
and  their  property,  will  produce  irreparable 
injury. 

[For  other  cases,  see  Courts,  YI.  d,  2;  In- 
junction, I.  i,  1.  in  Digest  Sup.  Ct.  1908.] 

NoTV. — On  injunction  to  restrain  prose- 
cution of  criminal  or  quasi  criminal  na- 
ture— see  notes  to  Hall  v.  Dunn,  25  L.R.A. 
(N.S.)  193;  Denton  v.  McDonald,  34  L.RJl. 
(N.S.)  453;  and  Alexander  v.  Elkins,  L.RJI. 
1916C,   263. 

On  forbidding  use  of  trading  stamps— see 
notes  to  Ex  parte  Drexel,  2  L.R.A.(N.S.) 
588;    Denver   v.   Frueauff,   7   L.R.A.(N.S.) 

691 


SUPREME  COURT  OF  THE  UNITED  STATE& 


Cor.  Tknc» 


States  —  Inunnnlty  from  suit  —  salt 
against  state  officers. 

2.  The  state's  immunity  from  suit  does 
not  extend  to  a  suit  against  state  officers 
to  enjoin  the  threatened  enforcement  of  a 
state  statute  which  is  attacked  as  repugnant 
to  the  Federal  Constitution. 

[For  other  cases,  see  States,  IX.  c,  in  Digest 
Sup.  Ct.  1908.] 

Constitutional  law  —  equal  protection 

of  the  laws  —  classification  —  license 

tax. 

3.  The  imposition,  under  Washington 
Laws  1913,  chap.  334,  of  an  annual  license 
tax  of  $6,000  upon  merchants  using  stamps, 
tickets,  or  coupons  redeemable  in  cash  or 
merchandise,  is  not  repugnant  to  the  equal 
protection  of  the  laws  clause  of  U.  6.  Const., 
14tii  Amend.,  as  an  attempted  arbitrary  clas- 
sification, whether  such  stamps  are  prepared 
or  redeemed  by  the  merchant  issuing  them 
or  by  a  third  party  with  whom  the  mer- 
chant has  a  contract  for  their  use. 

[For  other  cases,  see  Constitntional  Law,  IV. 
a,  4,  in  Digest  Sup.  Ct.  1908.] 

Gonstitutlonal  law  —  police  power  —  li- 
cense tax  —  retail  sales  —  trading 
stamps  or  coupons. 

4.  The  police  power  of  the  state  justi- 
fies the  enactment  of  Washington  Laws 
1913,  chap.  134,  imposing  an  annual  li- 
cense tax  of  $6,000  upon  merchants  using 
atamps,  tickets,  or  coupons  redeemable  in 
cash  or  merchandise. 

(For  other  cases,  see  Constitutional  Law,  IV. 
c,  8,  d,  in  Digest  Sup.  Ct.  1908.] 

Internal  revenue  —  tobacco  —  redeem- 
able coupons  —  state  regulation. 

6.  A  state  license  tax  on  merchants 
using  stamps,  tickets,  or  coupons  redeem- 
able in  cash  or  merchandise  is  not  invalid 
as  applied  to  sales  of  packages  of  tobacco 
containing  such  coupons  because  of  the  per- 
mission, if  any,  granted  by  the  amend- 
ment of  July  1,  1902  (32  Stat,  at  L.  716, 
chap.  1371,  Comp.  Stat.  1913,  §  6204),  §  2, 
to  U.  S.  Hev.  Stat.  §  3394,  to  inclose  in 
packages  of  tobacco  redeemable  coupons, 
profit-sharing  certificates,  etc. 

[For  other  cases,  see  Internal  Revenue,  III. 
i,  in  Digest  Sup.  Ct.  1908.] 

Gonstltutional  law  —  impairing  con- 
tract obligations  —  sales  with  trading 
stamps  or  coupons. 

6.  The  imposition  of  a  prohibitive  li- 
cense tax  on  merchants  using  stamps,  tick- 
ets, or  coupons,  redeemable  in  cash  or  mer- 
chandise, as  is  done  by  Washington  Laws 


1913,  chap.  134,  does  not  oncoiictitutioa- 
ally  impair  the  contract  obligations  of  such 
merchants  with  their  customers  or  with 
third  parties  with  whom  they  haTe  con- 
tracted for  the  use  of  such  stamps  or  cou- 
pons. 

[For  other  cases,  see  Constitutional  Law. 
1450-1474,  in  Digest  Sup.  Ct.  1908.] 

Ck>nstltutlonal  law  —  due  process  of  law 
—  liberty  of  contract  —  prohibiting 
trading  stamps  or  redeemable  cou- 
pons. 

7.  There  is  no  denial  of  dueprocess  of 
law  in  the  imposition  under  Washington 
Laws  1913,  chap.  134,  of  a  prohibitive  li- 
cense tax  upon  merchants  using  stamps, 
tickets,  or  coupons  redeemable  in  cash  or 
merchandise  as  inducements  to  purchasers. 
[For  other  cases,  see  Constitutional  Law,  IV. 

b,  7,  in  Digest  Sup.  Ct.  1908.] 

Criminal  law  —  Indeflnlteness  of  stat- 
ute —  prohibiting  trading  stamps  or 
redeemable  coupons. 

8.  The  lack  of  any  definite  or  fixed  re- 
tail market  price  for  the  uremium  articles 
does  not  render  invalid  for  indefiniteness 
and  uncertainty  the  provisions  of  Wash- 
ington Laws  1913,  chap.  134,  making  the 
use  of  trading  stamps  or  other  devices 
which  entitle  the  holders  to  obtain  goods 
for  less  than  the  retail  market  price  a  crime 
unless  a  prohibitive  license  fee  is  paid. 
[For  other  cases,  see  Criminal  Law,  I.  a,  in 

Digest  Sup.  Ct.  1908.] 

[No.  224.] 

Argued  October  29  and  November  1  and  2, 
1915.    Decided  March  6,  1916. 

APPEAL  from  the  District  Court  of  the 
United  States  for  the  Eastern  District 
of  Washington  to  review  a  decree  granting 
an  interlocutory  injunction  to  restrain  the 
threatened  enforcement  of  a  statute  impos- 
ing a  prohibitive  license  fee  on  the  use  of 
trading  stamps  or  redeemable  coupons.  Re- 
versed and  remanded,  with  directions  to 
dismiss  the  bill. 

See  same  case  below,  208  Fed.  605. 

Statement  by  Mr.  Justice  McKenna: 

This  case   was   submitted  with   No.    41, 

and  attacks  the  validity  of  a  statute  of  the 

state  of  Washington  of  the  same  general 

import  and  purpose  as  the  Florida  statute 


1181;  District  of  Columbia  v.  Kraft,  30 
L.RJL.(N.S.)  957;  and  State  ex  rel.  Harti- 
gan  V.  Sperry  &  H.  Co.  49  L.R.A.(N.S.) 
1123. 

As  to  what  constitutes  due  process  of  law, 
generally — see  notes  to  People  v.  0*Brien,  2 
L.R.A.  255;  Kuntz  v.  Sumption,  2  L.R.A. 
656;  Re  Gannon,  6  L.R.A.  359;  Ulman  v. 
Baltimore,  11  L.R.A.  224;  Oilman  v. 
Tucker,  13  L.R.A.  304;  Pearson  v.  Yewdall, 
24  L.  ed.  U.  S.  436;  and  Wilson  v.  North 
Carolina,  42  L.  ed.  U.  S.  865. 

As  to   the  validity  of  class  legislation, 

gmerAlly — tfee  notes  to  State  v.  Q^xiwill,  6 

€9M 


L.R.A.  621 ;  and  State  v.  Loomis,  21  L.RJL 
789. 

As  to  constitutional  equality  of  privi- 
leges, immunities,  and  protection  generally 
— see  note  to  Louisville  Safety  Vault  ft  T. 
Co.  V.  Louisville  &  N.  R.  Co.  14  L.RJL  679. 

Generally,  as  to  what  laws  are  void  as 
impairing  obligation  of  contracts — see  notes 
to  Franklin  County  Grammar  School  v. 
Bailey,  10  L.R.A.  405;  Bullard  v.  Northern 
P.  R.  Co.  11  L.R.A.  246;  Henderson  v.  State 
Soldiers  &  S.  Monument  Comrs.  IS  L.RJk. 
169;  and  Fletcher  v.  Peck,  8  L.  ed.  U.  8. 
162. 

940  U.  8. 


1916. 


TANNBR  T.  LITTLE. 


860^78 


p«Med  on  in  No.  41.    [240  U.  8.  342,  ante, 
•79,  86  Sup.  Ct.  Rep.  870.] 

The  statnte  requires  that  OTery  person, 
•iCy  who  shall  use  or  furnish  to  any  other 
person,  etc.,  to  use  in,  with,  or  for  the  sale 
of  any  goods,  etc.,  any  stamps,  etc,  which 
shall  entitle  the  purchaser  receiTing  the 
same  with  such  sale  of  goods,  etc.,  to  procure 
from  any  person,  etc.,  any  goods,  etc.,  free 
of  charge,  or  for  less  than  the  retail  market 
price  thereof,  upon  the  production  of  any 
number  of  such  stamps,  etc.,  shall,  before  so 
furnishing,  selling,  or  using  [370]  the  same, 
obtain  a  license  from  the  auditor  of  each 
county  wherein  such  furnishing  or  selling 
or  using  shall  take  place  for  each  and  every 
store  or  place  of  business  in  that  county, 
owned  or  conducted  by  such  person,  etc., 
from  which  such  furnishing  or  selling,  or 
in  which  such  using,  shall  take  place. 

The  statute  fixes  the  license  at  $6,000,  and 
there  is  a  prohibition  of  the  use  of  the 
■tamps,  etc.,  in  any  town,  city,  or  county 
other  than  that  in  which  they  are  furnished 
or  sold.  Violation  of  the  act  is  made  a 
''gross  misdemeanor.'* 

The  complainants  are  nineteen  in  number, 
counting  partnerships  as  single  indiTiduals, 
and  engaged  in  the  business  of  hardware, 
cleaning  and  dyeing,  grocery,  soap,  canned 
goods,  meats,  drugs,  dry  goods,  boots  and 
shoes,  fuel,  photography,  laundry,  and  wine. 
Complainants  sue  for  all  similarly  situated. 

Their  allegations,  condensed  and  narra- 
tively stated,  are  as  follows:  They  carry  on 
their  respective  businesses  at  Spokane,  state 
of  Washington,  and  advertise  in  various 
ways,  which  are  enumerated,  including  the 
premium  advertising  system,  so-called,  and 
have  at  various  times,  for  the  purpose  of 
Increasing  their  general  trade  and  volume  of 
business,  especially  their  cash  trade,  adopt- 
ed and  used  a  premium  advertising  system 
conducted  as -follows:  with  the  sale  of  their 
goods  and  merehandise  they  each  give  to 
their  cash  customers  stamps,  tickets,  or 
coupons  at  the  rate  of  one  stamp  for  each 
cash  purchase  of  a  convenient  unit  amoimt, 
aa  one  stamp  for  each  6,  10,  or  25-cent  cash 
purchase,  as  the  case  may  be,  which  stamps 
or  coupons  entitled  their  customers  to  the 
choice  of  a  certain  cash  discount  or,  free  of 
charge,  to  certain  articles  of  merchandise 
of  their  own  selection,  when  presented  in 
certain  prescribed  numbers  for  redemption 
to  complainants  who  redeem  their  own 
•tamps  or  certificates,  or  to  a  third  party 
with  whom  other  of  the  complainants  have 
contracts,  many  of  wliich  are  still  in  force, 
for  the  use  of  their  premium  [371]  adver- 
tising system,  including  the  use  of  their 
trading  stamps  or  coupons  used  in  connec- 
tion therewith,  and  the  redemption  thereof 
in  merchandise. 
••  L.  ed. 


Many  of  the  complainants  accept  the 
coupons,  at  the  cash  value  thereon  printed, 
in  payment  or  part  pa3rment  of  the  cash  re- 
tail price  of  the  premium  articles. 

The  stamps  and  coupons  are  redeemable  in 
accordance  with  the  terms  of  printed  cata- 
logues or  premium  lists.  Booklets  are  dis- 
tributed free  among  complainants'  custom- 
ers and  describe  the  articles  which  may  be 
secured  by  the  stamps  or  coupons,  and  state 
the  number  thereof  required  to  obtain  the 
same.  The  delivery  of  the  required  number 
of  stamps  or  coupons  set  forth  in  the  list  is 
in  full  payment  for  the  article  specified,  and 
no  money  or  other  consideration  is  charged 
therefor. 

There  is  no  element  of  chance  involved  in 
the  system.  The  value  of  each  article  is 
fixed  as  to  cash  and  merchandise  redemption 
and  the  right  of  every  holder  is  secure.  The 
articles  are  of  sound  value  and  durable  man- 
ufacture and  are  open  to  inspection  during 
business  hours.  The  premiums  are  not 
regularly  dealt  in  by  many  of  the  com- 
plainants, but  are  used  exclusively  in  con- 
nection with  premium  advertising. 

A  number  of  complainants  have  contracts 
based  on  the  system,  running  from  one  to 
five  years  for  the  use  of  their  premium  ad- 
vertising system,  including  their  trading 
stamps  in  connection  therewith,  which  con- 
tracts are  now  in  force  and  were  in  force  at 
the  passage  of  the  act,  and  a  larpfe  number 
of  stamps  are  now  in  the  hands  of  complain- 
ants, and  if  they  are  prevented  from  dis- 
posing of  them  complainants  will  suffer 
great  and  irreparable  loss. 

A  great  many  manufacturers  of  various 
lines  of  merchandise,  for  the  purpose  of 
advertising  their  businesses  and  increasing 
the  volume  of  their  sales,  inclose  in  the 
packages  of  their  merchandise  coupons  and 
other  premium  tokens  which  entitle  the  pur- 
chaser of  such  merchandise  to  [378]  other 
articles  of  merchandise  free  of  charge.  The 
number  of  the  manufacturers  is  given,  their 
names  and  the  articles  which  they  manu- 
facture. 

Complainants  have  upon  their  shelves 
large  quantities  of  merchandise  in  which 
premium  tokens  are  packed,  which,  upon 
their  sale,  entitle  purchasers  to  other 
articles  in  the  manner  described,  and  in 
such  packages  are  tobacco  and  tobacco  prod» 
nets,  and  the  use  of  the  coupons  and  tickets 
as  described  is  authorized  and  rendered 
lawful  by  §  3304  of  the  Revised  Statutes  of 
the  United  States  and  the  amendments  of 
that  section  in  1897  [30  Stat,  at  L.  206, 
chap.  11,  §  10]  and  1902  [32  Stat,  at  L.  715, 
chap.  1371,  %  2,  Comp.  Stat.  1913,  9  6204]. 

The  adoption  of  the  premium  advertising: 
system  enables  complainants  to  give  a  dis- 
count upon  purchasea  of  small  as  well  as. 


S72-370 


SUPREME  COURT  OF  THE  UNITED  STATES. 


OoT.  Term, 


Urge  amounti,  one  coupon  or  stamp  being 
giTen  with  each  5,  10,  or  25-cent  cash  pur- 
chase, or  multiple  thereof,  as  the  case  may 
be.  And  a  larger  discount  in  merchandise 
can  be  given  than  otherwise  there  could  be 
because,  as  a  result  of  large  purchases  of 
the  merchandise  given  in  exchange  for  the 
tokens,  the  articles  are  secured  at  much  less 
than  tiie  regular  retail  price.  By  reason  of 
the  system  complainants  have  been  enabled 
at  a  moderate  cost  to  greatly  increase  their 
businesses  and  profits,  and  are  benefited  be- 
cause their  articles  in  the  homes  of  their 
customers  are  a  continual  advertisement. 
And  the  businesses  are  lawful  ones,  and  not 
prejudicial  to  the  public  health,  safety, 
morals,  or  welfare. 

The  statute  of  Washington  violates  the 
provisions  of  the  14th  Amendment  to  the 
Constitution  of  the  United  States  in  that 
it  deprives  complainants  of  their  property 
without  due  process  of  law  and  of  the  equal 
protection  of  the  laws  (a)  because  it  is  not 
equal  and  uniform  in  operation,  each  of  the 
complainants  paying  their  taxes  as  do  other 
merchants  engaged  in  similar  lines  of  busi- 
ness, and  who  use  other  and  various  methods 
of  advertising,  and  [373]  who  are  not  re- 
quired to  pay  a  license  tax  of  $6,000.  The 
statute  is  therefore  arbitrary  and  discrimina- 
tory, (b)  The  tax  is  not  upon  the  businesses 
of  complainants,  but  upon  their  incidents, 
and  is  an  unwarrantable  interference  with  the 
method  and  manner  of  conducting  the  same, 
is  arbitrary,  oppressive,  discriminatory,  is 
in  excess  of  profits  and  prohibitive,  and, 
while  in  the  guise  of  revenue,  will 'produce 
none,  (c)  It  deprives  complainants  of 
their  liberty  and  property  without  due  pro- 
cess of  law  inasmuch  as  they  cannot  bestow 
a  gift  or  give  an  order  upon  another  mer- 
chant for  a  gift  to  a  customer,  which  is  the 
exercise  of  a  natural  right,  without  paying 
on  onerous  and  excessive  tax.  (d)  The 
penalties  and  fines  are  so  drastic  and  exces- 
sive that  they  deter  complainants  from 
violating  the  act  and  testing  its  validity  in 
a  court  of  law.  (e)  The  statute  is  in  con- 
travention of  §  10,  article  1,  of  the  Constitu- 
.  tion  of  the  United  States,  in  that  it  impairs 
the  obligations  of  contracts  with  and  the 
right  of  complainants  to  contract  with  their 
customers  to  give  trading  stamps  and 
coupons  with  the  purchase  of  merchandise 
redeemable  in  merchandise  heretofore  given 
by  them.  It  also  impairs  the  obligations  of 
contracts  entered  into  by  complainants  with 
third  parties  for  the  use  of  the  advertising 
system,  including  the  use  of  the  stamps  and 
coupons  and  the  redemption  thereof  in 
merchandise,  (f)  The  statute  is  partial, 
unreasonable,  oppressive,  unequal,  in  re- 
straint of  trade,  and  prohibitive  of  lawful 
business,  (g)  The  statute  oonflicta  with  i 
694 


3394  of  the  Revised  Statutes  of  the  United 
States  and  the  amendments  thereof  (Comp. 
Stat.  1913,  §  6264).  (h)  It  is  criminal, 
making  a  crime  of  acts  the  test  of  which  is 
incapable  of  ascertainment;  that  is,  it 
makes  a  crime  of  furnishing  stamps  or 
similar  devices  which  are  redeemable  "for 
less  than  the  retail  market  price  thereof," 
the  premium  article  having  no  definite  or 
fixed  retail  market  price.  The  statute  is 
therefore  void  for  indefiniteness  and  un- 
certainty; and  such  provision  is  besides  pro- 
hibitive of  the  business,  [374]  as  the  articles 
are  not  dealt  in  by  complainants  except  in 
connection  with  the  premium  system.  And 
further,  that  the  statute  is  void  because  it 
attempts  to  fix  the  price  at  which  com- 
plainants shall  sell  their  merchandise. 

The  prosecuting  attorney  of  the  county 
threatens  to  enforce  the  provisions  of  the 
statute,  to  bring  numerous  criminal  prose- 
cutions as  well  as  civil  suits  to  enforce  the 
payment  of  the  license,  and  if  complainants 
are  forced  to  discontinue  their  business  as 
described  they  will  suffer  great  and  irrep- 
arable damage  because  they  have  expended 
large  sums  of  money  in  advertising  the 
premium  system,  which  expenditures  would 
be  a  total  loss,  they  having  large  stocks  of 
merchandise  on  hand  in  which  are  packed 
the  premium  tokens,  and  which  cannot  be 
removed  without  practically  destroying  the 
packages  and  the  value  of  the  merchandise 
contained  therein,  and  that  thei^fore,  if  not 
permitted  to  dispose  of  them,  complainants 
will  lose  a  large  amount  of  money. 

Complainants  have  outstanding  in  the 
hands  of  customers  a  large  amount  of 
tokens,  the  result  of  transactions  before  the 
passage  of  the  statute,  and  it  will  be  neces- 
sary, in  order  to  keep  faith  with  their 
customers,  for  complainants  to  redeem  such 
tokens  in  merchandise  in  the  future  from 
time  to  time  as  the  necessary  and  requisite 
number  of  the  same  are  presented  for  re- 
demption. If  they  fail  to  do  so  they  will 
lose  many  customers  and  a  large  amount  of 
trade  and  suffer  thereby  great  loss  and  in- 
jury. 

Having  no  remedy  at  law,  complainants 
pray  an  injunction,  first  temporary  and 
then  perpetuaL 

A  temporary  restraining  order  was  is- 
sued, which  the  attorney  general  and  the 
prosecuting  attorney  of  Spokane  county 
separately  made  motions  to  quash,  each  ap- 
pearing only  for  that  purpose.  The  motions 
asserted  exemption  from  suit  of  those  of- 
ficers in  a  Federal  court  because  the  suit 
was  against  them  as  officers  of  the  state  to 
prevent  the  enforcement  of  the  criminal 
laws  of  the  state,  and  was  [375]  therefore 
a  suit  against  the  state,  in  violation  of  the 

240  U.  8. 


1915. 


TANNER  T.  LITTLB. 


875 


lltli  Amendment  to  the  Constitution  of  the 
United  States. 

Snbseqnentlj  motions  to  dismiss  were 
filed  by  them  and  also  by  the  defendant 
Evenson,  county  treasurer  of  Spokane  ooun- 
-fy.  The  grounds  of  the  motions  alleged 
were  misjoinder  of  parties  complainants  and 
oi  defendsnts,  improper  union  of  causes  of 
suit,  insufficiency  of  the  facts  alleged  to 
justify  the  relief  prayed,  the  adequacy  of  a 
remedy  at  law,  and  the  absence  of  jurisdic- 
tion over  the  persons  of  the  defendants  or 
of  the  subject-matter  of  the  action. 

The  motion  for  an  interlocutory  injunc- 
tion came  before  three  judges.  Rudkin,  dis- 
trict judge,  delivered  the  opinion  and  judg- 
ment ordering  an  injunction  was  prayed. 
208  Fed.  605.    This  appeal  was  then  taken. 

Mr.  J>aUas  V,  HalTerstadt  argued  the 
'Cause,  and,  with  Mr.  W.  V.  Tanner,  Attor- 
ney General  of  Washington,  in  propria  per- 
.soMa,  filed  a  brief  for  appellants: 

The  act  is  not  arbitrary  classification. 

American  Sugar  Ref.  Co.  ▼.  Louisiana, 
179  U.  S.  80,  46  L.  ed.  102,  21  Sup.  Ct.  Rep. 
43;  Assaria  State  Bank  t.  Dolley,  219  U.  S. 
121,  55  L.  ed.  123,  31  Sup.  Ct.  Rep.  189; 
Atlantic  Coast  Line  R.  Co.  t.  Georgia,  234 
U.  S.  280,  58  L.  ed.  1312,  34  Sup.  Ct.  Rep. 
S29;  Bacon  v.  Walker,  204  U.  S.  311,  51 
L.  ed.  499,  27  Sup.  Ct.  Rep.  289;  Baccus  v. 
Louisiana,  232  U.  S.  334,  58  L.  ed.  627,  34 
8up.  Ct.  Rep.  439;  Barbier  t.  Connolly,  113 
U.  S.  27,  S[8  L.  ed.  923,  5  Sup.  Ct.  Rep.  357; 
Barrett  ▼.  Indiana,  229  U.  S.  26,  57  L.  ed. 
1050,  33  Sup.  Ct  Rep.  692;  Brodnax  ▼.  Mis- 
souri, 219  U.  S.  285,  55  L.  ed.  219,  31  Sup. 
Ot.  Rep.  238;  Central  Loan  k  T.  Co.  ▼. 
Campbell  Commission  Co.  ,173  U.  S.  84,  43 
L.  ed.  623,  19  Sup.  Ct.  Rep.  346;  Central 
Lumber  Co.  ▼.  South  Dakota,  226  U.  S.  157, 
^7  L.  ed.  164,  33  Sup.  Ct.  Rep.  66;  Chicago, 
R.  I.  ft  P.  R.  Co.  ▼.  Arkansas,  219  U.  S.  453, 
55  L.  ed.  290,  31  Sup.  Ct.  Rep.  275;  Char- 
lotte, C.  k  A.  R.  Co.  ▼.  Gibbes,  142  U.  S.  386, 
35  L.  ed.  1061,  12  Sup.  Ct.  Rep.  256;  Cin- 
4sinnati  Street  R.  Co.  t.  Snell,  193  U.  S.  30, 
48  L.  ed.  604,  24  Sup.  Ct.  Rep.  319;  Clark 
v.  Kansas  aty,  176  U.  S.  114,  44  L.  ed.  392, 
20  Sup.  Ct  Rep.  284;  Clark  v.  Titusrille, 
184  U.  8.  329,  46  L.  ed.  569,  22  Sup.  Ct. 
Rep.  382;  Clement  Nat.  Bank  ▼.  Vermcmt, 
^1  U.  S.  120,  58  L.  ed.  147,  34  Sup.  Ct 
R^.  31;  Connolly  ▼.  Union  Sewer  Pipe  Co. 

184  U.  S.  540,  46  L.  ed.  679,  22  Sup.  Ct 
Rep.  431;  Consolidated  Coal  Co.  v.  Illinois, 

185  U.  S.  203,  46  L.  ed.  872,  22  Sup.  Ct 
Rep.  616 ;  Engel  v.  O'Malley,  219  U.  S.  128, 
^5  L.  ed.  128,  31  Sup.  Ct  Rep.  190;  Erb  v. 
Kc^asch,  177  U.  S.  584,  44  L.  ed.  897,  20 
Sup.  Ct  Rep.  819;  Erie  R.  Co.  y.  Williams, 
^33  U.  S.  685,  58  L.  ed/1155,  51  LJLA. 

(N.^.)  1097,  34  Sup.  Ct  Rep.  761;  Farm- 
40  L.  ^d 


ers*  k  M.  SaT.  Baid:  t.  Minnesota,  232  U.  8. 
516,  58  L.  ed.  706,  84  Sup.  Ct  Rep.  354; 
Farmers'  k  M.  Ins.  Co.  t.  Dobney,  189  U. 
S.  301,  47  L.  ed.  821,  23  Sup.  Ct  Rep.  565; 
FideU^  Mut  Life  Asso.  t.  Mettler,  185  U. 
S.  308,  46  L.  ed.  922,  22  Sup.  Ct.  Rep.  662; 
Fleetwood  t.  Read,  21  Wash.  547,  47  L.RJL. 
205,  58  Pac.  665;  Freund,  Pol.  Power; 
Gundling  v.  Chicago,  177  U.  S.  183,  44  L. 
ed.  725,  20  Sup.  Ct.  Rep.  633;  International 
Harvester  Co.  v.  Missouri,  234  U.  S.  199, 
58  L.  ed.  1276,  52  L.R.A.(N.S.)  525,  34  Sup. 
Ct.  Rep.  859;  Jeffrey  Mfg.  Co.  t.  Blagg,  235 
U.  S.  571,  59  L.  ed.  364,  35  Sup.  Ct.  Rep. 
167,  7  N.  C.  C.  A.  570;  Kdirer  v.  Stewart, 

197  U.  S.  60,  49  L.  ed.  663,  25  Sup.  Ct.  Rep. 
403;  Keokee  Consol.  Coke  Co.  v.  Taylor,  234 
U.  S.  224,  58  L.  ed.  1288,  34  Sup.  Ct.  Rep. 
856;  Lindsley  v.  Natural  Carbonic  Gas  Co. 
220  U.  S.  61,  56  L.  ed.  369,  31  Sup.  Ct  Rep. 
337,  Ann.  Cas.  1912C,  160;.  Magoun  v.  Illi- 
nois Trust  k  SaT.  Bank,  170  U.  S.  283,  42 
L.  ed.  1037,  18  Sup.  Ct  Rep.  594;  McLean 
▼.  Arkansas,  211  U.  S.  539,  53  L.  ed.  315, 
29  Sup.  Ct  Rep.  206;  Ex  parte  McKenna, 
126  CaL  429,  58  Pac.  916;  Metropolis  The- 
atre Co.  v.  Chicago,  228  U.  S.  61,  57  L.  ed. 
730,  33  Sup.  Ct.  Rep.  441;  Minnesota  Iron 
Co.  T.  EUine,  199  U.  S.  593,  50  L.  ed.  322, 
26  Sup.  Ct  Rep.  159,  19  Am.  Neg.  Rep.  625; 
Missouri,  K.  ft  T.  R.  Co.  v.  May,  194  U.  S. 
267,  48  L.  ed.  971,  24  Sup.  Ct.  Rep.  638; 
Missouri  P.  R.  Co.  v.  Mackey,  127  U.  B,  205, 
32  L.  ed.  107,  8  Sup.  Ct.  Rep.  1161 ;  Mutual 
Loan  Co.  ▼.  Martell,  222  U.  S.  235,  56  L.  ed. 
179,  32  Sup.  Ct  Rep.  74,  Ann.  Cas.  1913B, 
529;  Murphy  v.  California,  225  U.  S.  623, 
56  L.  ed.  1229,  41  .L.R.A.(N.S.)  153,  32  Sup. 
Ct.  Rep.  697;  Nicol  v.  Ames,  173  U.  S.*509, 
43  L.  ed.  786,  19  Sup.  Ct  Rep.  522;  Ohio 
River  A  W.  R.  Co.  t.  Dittey,  232  U.  S.  576, 
58  L.  ed.  738,  34  Sup.  Ct.  Rep.  372;  Otis  t. 
Parker,  187  U.  &  606,  47  L.  ed.  323,  23 
Sup.  Ct  Rep.  168;  Ozan  Lumber  Co.  v. 
Union  County  Nat.  Bank,  207  U.  S.  261,  52 
L.  ed.  195,  28  Sup.  Ct  Rep.  89;  Pacific  Exp. 
Co.  T.  Seibert,  142  U.  S.  339,  35  L.  ed.  1035, 
3  Inters.  Com.  Rep.  810,  12  Sup.  Ct.  Rep. 
260;  Patsone  ▼.  Pennsylvania,  232  U.  S.  138, 
5d  L.  ed.  539,  34  Sup.  Ct  Rep.  281;  Postal 
Teleg.  Cable  Co.  v.  Charleston,  163  U.  S. 
692,  38  L.  ed.  871,  4  Inters.  Com.  Rep.  637, 
14  Sup.  Ct  Rep.  1094;  Quong  Wing  v.  Kir- 
kradall,  223  U.  8.  59,  56  L.  ed.  350,  32  Sup. 
Ct  Rep.  192;  Rippey  v.  Texas,  193  U.  S. 
604,  48  L.  ed.  767,  24  Sup.  Ct  Rep.  516; 
Savannah,  T.  k  I.  of  H.  R.  Co.  v.  Savannah, 

198  U.  8.  392,  49  L.  ed.  1097,  26  Sup.  Ct 
Rep.  690;  Singer  Sewing  Mach.  Co.  v. 
Brickell,  233  U.  8.  304,  58  L.  ed.  974,  34 
Sup.  Ct  Rep.  403;  Smith  t.  Texas,  233  U. 
a  630,  58  L.  ed.  1129,  L.RJL.1915D,  677, 
34  Sup.  Ct.  Rep.  681,  Ann.  Cas.  1916D,  420; 
Southwestern  Oil  Co.  t.  Texas,  217  U.  8 


Tzrrne- — fr. 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  TwaM, 


114,  64  Lb  ed.  688,  80  Sup.  Ct.  Rep.  496; 
Sperry  ft  H.  Co.  ▼.  Blue,  120  C.  C.  A.  364, 
202  Fed.  82;  Sperry  k  H.  Co.  v.  Melton,  69 
W.  Va.  124,  34  l4.RJk.(N.S.)  433,  71  S.  E. 
10;  Sperrj  k  H.  Co.  t.  Owensboro,  151  Ky. 
389,  161  S.  W.  932,  Ann.  Cas.  1915A,  373; 
Sperry  k  H.  Co.  ▼.  Ttcoma,  68  Wash.  254, 
I4.R.A.1915B,  241,  122  Pac.  1060;  State  v. 
I^tney,  79  Wash.  608,  140  Pac.  918,  Ann. 
Cas.  1916A,  209;  Sturges  k  B.  Mfg.  Co.  v. 
Beauchamp,  231  U.  S.  320,  58  L.  ed.  245, 
L.RJL.1915A,  1196,  34  Sup.  Ct.  Rep.  60; 
Travellers'  Ins.  Co.  ▼.  Connecticut,  185  U.  S. 
864,  46  L.  ed.  049,  22  Sup.  a.  Rep.  673; 
Western  U.  Tel^.  Co.  ▼.  Commercial  Mill. 
Co.  218  U.  8.  406,  54  L.  ed.  1088,  36  L.R.A. 
(NJ3.)  220,  81  Sup.  Ct.  Rep.  59,  21  Ann. 
Cas.  815;  Wheeler  v.  Sohmer,  233  U.  S.  434, 
58  L.  ed.  1030,  34  Sup.  Ct.  Rep.  607 ;  Wil- 
liams ▼.  Arkansas,  217  U.  S.  79,  54  L.  ed. 
673,  18  Sup.  Ct.  Rep.  493,  18  Ann.  Cas.  865; 
WiUiams  v.  Fears,  179  U.  S.  270,  45  L.  ed. 
186,  21  Sup.  Ct.  Rep.  128;  Wilmington  SUr 
Min.  Co.  ▼.  Fulton,  205  U.  S.  60,  51  L.  ed. 
708,  27  Sup.  Ct.  Rep.  412. 

If  the  state  possesses  power  to  tax  for 
revenue,  the  extent  of  exercise  of  power  is 
immateriaL 

American  Sugar  Ref.  Co.  t.  Louisiana, 
179  U.  8.  89,  45  L.  ed.  102,  21  Sup.  Ct.  Rep. 
48;  Baltic  Min.  Co.  v.  Massachusetts,  231 
U.  8.  68,  58  L.  ed.  127,  L.RJI.  — ,  — ,  34  Sup. 
Ct  Rep.  15;  Bradley  v.  Richmond,  227  U.  S. 
477,  67  L.  ed.  603,  83  Sup.  Ct.  Rep.  318; 
Emert  t.  Missouri,  156  U.  S.  296,  39  L.  ed. 
430,  6  Inters.  Com.  Rep.  68,  15  Sup.  Ct. 
Rep.  807 ;  Ficklen  t.  Taxing  DUt  145  U.  S. 
1,  86  L.  ed.  601,  4  Inters.  Com.  Rep.  79,  12 
Sup.  Ct.  Rep.  810;  Fleetwood  ▼.  Read,  21 
Wash.  547,  47  L.R.A.  205,  58  Pac.  665; 
Flint  ▼.  Stone  Tracy  Co.  220  U.  S.  107,  55 
L.  ed.  389,  31  Sup.  Ct.  Rep.  342,  Ann.  Cas. 
1912B,  1312 ;  Frederick  ▼.  Seattle,  13  Wash. 
428,  43  Pac.  364;  Re  Garfinkle,  37  Wash. 
650,  80  Pac.  188;  Kehrer  t.  Stewart,  107  U. 
8.  60,  49  L.  ed.  663,  25  Sup.  Ct.  Rep.  403'; 
Kirtland  v.  Hotchkiss,  100  U.  S.  491,  25  L. 
ed.  558 ;  McCray  y.  United  SUtes,  195  U.  S. 
27,  49  L.  ed.  78,  24  Sup.  Ct.  Rep.  769,  1 
Ann.  Cas.  561;  M'Culloch  t.  Maryland)  4 
Wheat.  316,  4  L.  ed.  579;  McKnight  ▼. 
Hodge,  55  Wash.  289,  40  L.R.A.(N.S.)  1207, 
104  Pac*  504;  Nathan  v.  Louisiana,  8  How. 
73, 12  L.  ed.  992;  Schollenberger  ▼.  Pennsyl- 
vania, 171  U.  S.  1,  43  L.  ed.  49,  18  Sup.  Ct. 
Rep.  757;  Society  for  Savings  v.  Coite,  6 
Wall.  594,  18  L.  ed.  897;  Spencer  v.  Mer- 
chant, 125  U.  S.  345,  31  L.  ed.  763,  8  Sup. 
Ct.  Rep.  921;  Sperry  k  H.  Co.  v., Blue,  120 
C.  C.  A.  354,  202  Fed.  82;  Sperry  k  H.  Co. 
▼.  Melton,  69  W.  Va.  124,  84  LJt.A.(N.S.) 
488, 71  8.  S.  19;  Sperry  ft  H.  Co.  y.  Tacoma, 
68  Wash.  864,  LJLAa916B,  241,  122  Pac 
JOdO;  SM&  r.  Pitn^,  79  Wash.  608,  140 


Pac.  918,  Ann.  Cas.  1916A,  209;  Stall  t. 
De  Mattos,  23  Wash.  71,  51  L.ILA.  892,  68 
Pac.  451;  Union  P.  R.  Co.  ▼.  Peniston,  18 
Wall.  5,  21  L.  ed.  787;  Veazie  Bank  t. 
Tenno,  8  Wall.  533,  19  L.  ed.  482;  Ward  t. 
Maryland,  12  Wall.  428,  20  L.  ed.  452;  Wel- 
ton  V.  Missouri,  01  U.  S.  275,  23  L.  ed.  347; 
Weston  T.  Charleston,  2  Pet.  449,  7  L.  ed. 
481;  Wiggins  Ferry  Co.  ▼.  East  St.  Louis, 
107  U.  S.  365,  27  L.  ed.  419,  2  Sup.  Ct 
Rep.  257 ;  Williams  ▼.  Fears,  179  U.  8.  270, 
45  L.  ed.  186,  21  Sup.  Ct.  Rep.  128. 

The  state  may  prohibit  the  use  of  trading 
stamps  by  virtue  of  the  police  power. 

Allgeyer  ▼.  Louisiana,  165  U.  S.  578,  41 
L.  ed.  832,  17  Sup.  Ct.  Rep.  427;  Antoni  t. 
Greenhow,  107  U.  S.  769,  27  L.  ed.  468; 
Atkitt  ▼.  Kansas,  191  U.  S.  207,  48  L.  ed. 
148,  24  Sup.  Ct.  Rep.  124;  Austin  t.  Ten- 
nessee, 179  U.  S.  343,  45  L.  ed.  224,  21  Sup. 
Ct.  Rep.  132;  Bacon  v.  Walker,  204  U.  S. 
311,  51  L.  ed.  409,  27  Sup.  Ct.  Rep.  289; 
Barbier  v.  Connolly,  113  U.  S.  27,  28  L.  ed. 
923,  5  Sup.  Ct.  Rep.  357;  Barrett  ▼.  In- 
diana, 229  U.  S.  29,  57  L.  ed.  1052,  33  Sup. 
Ct.  Rep.  692;  Bartemeyer  ▼.  Iowa,  18  Wall. 
129,  21  L.  ed.  929;  Booth  ▼.  Illinois,  184 
U.  S.  425,  46  L.  ed.  623,  22  Sup.  Ct.'  Rep. 
425;  Central  Lumber  Co.  v.  South  Dakotii, 
226  U.  S.  157,  57  L.  ed.  164,  33  Sup.  Ct 
Rep.  66;  Charles  River  Bridge  t.  Warren 
Bridge,  11  Pet  420,  9  L.  ed.  773;  Chicago, 
B.  ft  Q.  R.  Co.  T.  Illinois,  200  U.  S.  561,  50 
L.  ed.  596,  26  Sup.  Ct  Rep.  341,  4  Ann.  Cas. 
1175;  Chicago,  B.  ft  Q.  R.  Co.  ▼.  McGuire, 
219  U.  S.  549,  55  L.  ed.  328,  31  Sup.  Ct 
Rep.  259;  Chicago,  R.  I.  ft  P.  R.  Co.  T. 
Zemecke,  183  U.  S.  582,  46  L.  ed.  839,  28 
Sup.  Ct.  Rep.  229;  13  Columbia  L.  Rer. 
296;  Com.  y.  Strauss,  191  Mass.  546,  11 
LJl.A.(N.S.)  968,  78  N.  E.  136,  6  Ann.  Cas. 
842;  Connolly  v.  Union  Sewer  Pipe  Co.  184 
U.  S.  540,  46  L.  ed.  679,  22  Sup.  Ct.  Rep. 
431;  Denver  v.  Frueauff,  89  Colo.  20,  7 
L.RJ1.(N.S.)  1131,  88  Pac.  389,  12  Ann. 
Cas.  521 ;  Dobbins  v.  Los  Angeles,  195  U.  8. 
223,  49  L.  ed.  169,  25  Sup.  Ct.  Rep.  18; 
Eberle  v.  Michigan,  232  U.  S.  700,  58  L.  ed. 
803,  34  Sup.  Ct  Rep.  464;  Erie  R.  Co.  v. 
Williams,  233  U.  S.  685,  58  L.  ed.  1156,  61 
L.R.A.(N.S.)  1097,  34  Sup.  Ct  Rep.  761; 
Fallbrook  Irrig.  Dist.  v.  Bradley,  164  U.  S. 
112,  41  L.  ed.  369,  17  Sup.  Ct  Rep.  56; 
Freund,  Pol.  Power;  Qerman  Alliance  Ins. 
Co.  ▼.  Lewis,  233  U.  S.  389,  58  L.  ed.  1011, 
L.R.A.1915C,  1189,  34  Sup.  Ct.  Rep.  618; 
Halter  v.  Nebraska,  205  U.  S.  34,  51  L.  ed. 
696,  27  Sup.  Ct  Rep.  419, 10  Ann.  Caa.  526; 
Hammond  Packing  Co.  v.  Montana,  233  U. 
S.  331,  58  L.  ed.  985,  34  Sup.  Ct  Rep.  596; 
Holden  t.  Hardy,  169  U.  S.  366,  42  Lb  ed. 
780,  18  Sup.  Ct  Rep.  388;  International 
Harvester  Co.  v.'  Missouri,  234  U.  8.  199,  68 
L.  ed.  1276,  52  Lit.A.(N.S.)   626,  34  819. 

840  U.  ■. 


1916. 


TANNER  Y.  LUTLB. 


Gt  Rep.  859;  Re  JMdbe»  98  N.  Y.  98,  50 
Am.  Rep.  836;  Jaoobeon  t.  MaMaehuietU, 
197  U.  8. 11,  49  li.  ed.  043,  25  Sup.  Ot.  Rep. 
358,  3  Ann.  Cae.  705;  Kanaek  y.  Peier,  22 
Waeh.  419,  50  L.RJk.  345,  01  Pae.  33; 
Kehrer  y.  Stewart,  197  U.  8.  60,  49  L.  ed. 
003,  25  Sup.  Ct  Rep.  403;  KnozyiUe  Iron 
Co.  Y.  Harbison,  183  U.  8.  13,  40  L.  ed.  55, 
22  Sup.  Ct.  Rep.  1;  lindsley  y.  Natural 
Carbonic  Gat  Co.  220  U.  8.  01,  55  L.  ed. 
309,  31  Sup.  Ct  Rep.  337,  Ann.  Cai.  1912C, 
100;  Lochner  Y.  New  York,  198  U.  8.  45, 
49  L.  ed.  937,  25  Sup.  Ct  Rep.  539,  3  Ann. 
Caa.  1133;  LouisYille  A  N.  R.  Ca  y.  Mottl^, 

219  U.  S.  407,  55  li.  ed.  297,  34  LJUL(NJ3.) 
071,  31  Sup.  Ct.  Rep.  205;  liagoun  y.  lUinoia 
Trust  k  Sav.  Bank,  170  U.  8.  283,  42  L.  ed. 
1037,  18  Sup.  Ct.  Rep.  594;  McCracken  y. 
Ua3rward,  2  How.  008,  11  L.  ed.  397;  Me- 
Cray  y.  United  SUtes,  195  U.  8.  27,  49  L. 
ed.  78,  24  Sup.  Ct.  Rep.  709,  1  Ann.  Cat. 
501;  McKnight  y.  Hodge,  55  Wash.  289,  40 
L.RJl.(N.S.)  1207,  104  Pae.  504;  McLean 
Y.  Arkansas,  211  U.  8.  539,  53  L.  ed.  315, 
29  Sup.  Ct.  Rep.  200;  Metropolis  Theatre 
Co.  Y.  Chicago,  228  U.  8.  01,  57  L.  ed.  730, 
33  Sup.  Ct  Rep.  441 ;  Missouri,  K.  A  T.  R. 
Co.  Y.  May,  194  U.  8.  207,  48  L.  ed.  971,  24 
Sup.  Ct  Rep.  038;  Missouri  P.  R.  Co.  y. 
Mackey,  127  U.  S.  205,  32  L.  ed.  107,  8  Sup. 
Ct.  Rep.  1161;  Muller  y.  Oregon,  208  U.  S. 
412,  52  L.  ed.  551,  28  Sup.  Ct  Rep.  324,  13 
Ann.  Cas.  957;  Munn  y.  Illinois,  94  U.  S. 
113,  24  L.  ed.  77;  Murphy  y.  California, 
225  U.  S.  023,  50  L.  ed.  1229,  41  L.RJk. 
(N.S.)  153,  32  Sup.  Ct  Rep.  697;  Noble 
State  Bank  y.  Haskell,  219  U.  8.  104,  55  L. 
ed.  112,  32  l4.RJL(NJ9.)  1002,  31  Sup.  Ct. 
Rep.  180,  Ann.  Cas.  1912A,  487;  The  Osce- 
ola, 189  U.  8. 158,  47  L.  ed.  700,  23  Sup.  Ct 
Rep.  483 ;  Otis  y.  Parker,  187  U.  8.  000,  47 
L.  ed.  323,  23  Sup.  Ct  Rq>.  108;  Ozan  Lum- 
ber Co.  Y.  Union  County  Nat  Bank,  207  U. 
8.  251,  52  L.  ed.  105,  28  Sup.  Ct.  Rep.  89; 
Patsone  y.  PennsyWania,  232  U.  8.  138,  58 
L.  ed.  539,  34  Sup.  Ct.  Rep.  281;  People  y. 
GiUson,  109  N.  Y.  389,  4  Am.  St  Rep.  465, 

17  N.  E.  343;  People  y.  Marx,  99  N.  Y.  377, 
52  Am.  Rep.  34,  2  N.  E.  29;  Petit  y.  Min- 
nesota, 177  U.  8.  168,  44  L.  ed.  719,  20  Sup. 
Ct  Rep.  000;  Phalen  Y.  Virginia,  8  How. 
103,  12  L.  ed.  1030;  Plessy  y.  Ferguson,  103 
U.  8.  537,  41  L.  ed.  250,  10  Sup.  Ct.  Rep. 
1138;  Powell  y.  PennsylYania,  127  U.  8. 
078,  32  L.  ed.  253,  8  Sup.  Ct  Rep.  992, 
1257;  Parity  Extract  A  Tonic  Co.  y.  Lynch, 

220  U.  8. 192,  57  L.  ed.  184,  33  Sup.  Ct.  Rep. 
44;  Quoog  Wing  y.  Kirkendall,  223  U.  S. 
59,  50  L.  ed.  350,  32  Sup.  Ct.  Rep.  192; 
Sdimidinger  y.  Chicago,  220  U.  8.  578,  57  L. 
ed.  304,  33  Sup.  Ct  Rep.  182,  Ann.  Cas. 
1914B,  284;  Seattle  y.  Hurst,  50  Wash.  424, 

18  LJRJL(N.S.)  109,  97  Pac  454;  Smith  y. 
Teens,  233  U.  a  030,  58  L.  ed.  1129,  L.RJL 
00  li.  ed. 


1915D,  077,  84  Sup.  Ct  Rep.  081,  Ann.  Cas. 
1915D,  420;  Southwestern  Oil  Co.  y.  Tesuts, 
217  U.  8.  114,  54  L.  ed.  088,  30  Sup.  Ct 
Rep.  490;  State  y.  Buchanan,  29  Wash.  002, 
59  LJUL  342,  92  Am.  St.  Rep.  930,  70  Pac. 
52;  Stote  Y.  Nichols,  28  Wash.  628,  69  Pac 
372;  SUte  Y.  Pitney,  79  Wash.  608, 140  Pac 
918,  Ann.  Cas.  1910A,  209;  State  ex  rel. 
DaYis*Smith  Co.  y.  Clausen,  05  Wash.  150, 
37  LJLA.(N.S.)  400,  117  Pac  1101,  2  N.  C. 
C.  A.  823,  3  N.  C.  C.  A.  599;  New  York  ex 
rel.  Site  y.  Hesterberg,  211  U.  8.  31,  53  L. 
ed.  75,  29  Sup.  Ct  Rep.  10;  SUte  y.  Neit- 
zel,  09  Wash.  507,  43  L.R.A.(N.S.)  203,  125 
Pac  939,  Ann.  Cas.  1914A,  899;  Sturges  A 
B.  Mfg.  Co.  Y.  Beauchamp,  231  U.  8.  320,  58 
L.  ed.  245,  LJLA.1915A,  1190,  34  Sup.  Ct 
Rep.  60;  Watson  y.  Maryland,  218  U.  8. 
174,  54  L.  ed.  988,  30  Sup.  Ct  Rep.  644; 
Welch  Y.  Swasey,  214  U.  S.  91,  53  L.  ed. 
923,  29  Sup.  Ct  Rep.  567;  State  y.  Under- 
wood, —  La.  — ^,71  So.  513. 

In  the  Yast  majority  of  the  cases  in  which 
it  has  been  hdd  that  the  trading  stamp  and 
coupon  business  could  not  be  prohibited,  the 
courts  haYC  limited  the  police  power  to  the 
protectMm  of  the  public  health,  morals  and 
safety,  a  Yiew  considerably  more  limited 
than  that  which  has  been  held  by  this  court 
cYen  from  the  time  of  the  case  of  Barbier  y. 
Connolly,  113  U.  8.  27,  28  L.  ed.  923,  5  Sup. 
Ct  Rep.  357. 

Com.  Y.  Emerson,  165  Mass.  146,  42  N.  E. 
659;  Com.  Y.  Gibson  Co.  125  Ky.  440,  101 
S.  W.  385;  C(«i.  Y.  Moorhead,  7  Pa.  Co.  Ct. 
513;  Com.  Y.  Sisson,  178  Mass.  578,  00  N.  E. 
385;  DeuYcr  y.  Frueauff,  39  Colo.  20,  7 
L.RJk.(NJ3.)  1131,  88  Pac.  389,  12  Ann. 
Cas.  521;  District  of  Columbia  y.  Kraft,  35 
App.  D.  C.  253,  30  L.R.A.(NJ3.)  957;  Ex 
parte  Drexel,  147  Cal.  703,  2  L.ItA.(N.S.) 
588,  82  Pac.  429,  3  Ann.  Cas.  878;  Fleet- 
wood Y.  Read,  21  Wash.  547,  47  L.R.A.  205, 
68  P&c.  005;  Gamble  y.  Montgomery,  147 
Ala.  082,  39  So.  353;  Re  Gregory,  219  U.  8. 
210,  55  L.  ed.  184,  31  Sup.  Ct  Rep.  143; 
Hewin  y.  Atlanta,  121  Ga.  731,  07  L.RJL 
795,  49  8.  E.  765,  2  Ann.  Cas.  296;  Humes 
Y.  Ft  Smith,  93  Fed.  857 ;  Humes  y.  Little 
Rock,  138  Fed.  929;  Ex  parte  Hutchinson, 
137  Fed.  949;  Ex  parte  Hutchinson,  137 
Fed.  950;  Trading  Stamp  Co.  y.  Memphis, 
101  Tenn.  181,  47  8.  W.  130;  Kane  y.  Seg- 
erstrom  Piano  Mfg.  Co.  118  Minn.  483,  41 
L.RA.(N.8.)  1041,  137  N.  W.  170;  Lans- 
burgh  Y.  District  of  Columbia,  11  App.  D.  C. 
512;  Leonard  y.  Bassindale,  46  Wash.  301, 
89  Pac.  879;  Little  y.  Tanner,  208  Fed.  605; 
Long  Y.  SUte,  74  Md.  505,  12  L.R.A.  425, 
28  Am.  8t  Rep.  208,  22  AtL  4;  Ex  parte 
McKenna,  120  Cal.  429,  58  Pac.  910;  Mont- 
gomery ▼.  Kelly,  142  Ala.  552,  70  LJR.A. 
209,  110  Am.  St  Rep.  43,  38  So.  07 ;  Oilure 
Wg.  Go.  T.  Pidduck-Rosi  Go.  38  Wash.  137, 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  jEBSf, 


80  Pac.  276;  O'Keeffe  t.  Somerville,  190 
Mass.  110,  112  Am.  St.  Rep.  316,  76  N.  £. 
457,  6  Ann.  Cas.  684;  Opinion  of  Justices, 
208  Mass.  607,  94  N.  E.  848 ;  People  y.  Gill- 
son,  100  N.  Y.  389,  4  Am.  St.  Rep.  465,  17 
N.  E.  343;  People  ex  rel.  Appel  v.  Zimmer- 
man, 102  App.  Div.  103,  92  N.  Y.  Supp. 
497;  Sperry  k  H.  Co.  v.  Blue,  120  C.  C.  A. 
354,  202  Fed.  82;  Sperry  &  H.  Co.  ▼.  Brady, 
134  Fed.  601;  Sperry  k  H.  Co.  ▼.  Melton, 
69  W.  Vs.  124,  34  L.R.A.(N.S,)  433,  71  8. 
E.  19;  Sperry  k  H.  Co.  v.  Owensboro,  151 
Ky.  389,  151  S.  W.  932,  Ann.  Cas.  1915A, 
373;  Sperry  k  H.  Co.  v.  Tacoma,  190  Fed. 
682,  68  Wash.  254,  L.R.A.1915B,  241,  122 
Pac.  1060,  199  Fed.  853;  Sperry  k  H.  Co.  v. 
Temple,  137  Fed.  992;  SUte  ex  rel.  Harti- 
gan  v.  Sperry  k  H.  Co.  94  Neb.  785,  49 
L.RJ^.(NJS.)  U23,  144  N.  W.  795;  SUte 
ex  rel.  Madden  ▼.  Dycker,  72  App.  Div.  308, 
76  N.  Y.  Supp.  Ill;  SUte  v.  Caspare,  115 
Md.  7,  80  Atl.  606;  SUte  v.  Dalton,  22  R.  I. 
77,  48  L.R.A.  775,  84  Am.  St.  Rep.  818,  46 
AtL  234;  SUte  ▼.  Dodge,  76  Vt.  197,  56  Atl. 
983,  1  Ann.  Cas.  47;  SUte  v.  Hawkins,  95 
Md.  133,  93  Am.  St.  Rep.  328,  51  Atl.  850; 
SUte  v.  Pitney,  79  Wash.  608,  140  Pac  018, 
Ann.  Cas.  1916A,  209, 80  Wash.  699, 141  Pac. 
883;  SUte  ▼.  Ramseyer,  73  N.  H.  31,  58  Atl. 
058,  6  Ann.  Cas.  445 ;  SUU  v.  Shugart,  138 
Ala.  86, 100  Am.  St.  Rep.  17, 35  So.  28;  SUte 
ex  rel.  Simpson  v.  Sperry  k  H.  Co.  110 
Minn.  378,  30  L.R.A.(N.S.)  966,  126  N.'W. 
120;  SUte  v.  Walker,  105  La.  494,  29  So. 
973;  Territory  v.  M.  A.  Ounst  k  Co.  18  Haw. 
196;  Van  Deman  k  L.  Co.  v.  Rast,  214  Fed. 
828;  Ex  parte  West,  147  Cal.  774,  82  Pac. 
434;  SUte  ▼.  Underwood,  —  La.  — ,  71  So. 
513;  Winsten  v.  Beeson,  135  N.  C.  271,  65 
L.RJ^.  167,  47  S.  E.  457 ;  Winston  v.  Hud- 
son, 185  N.  C.  286,  47  S.  E.  1023;  Young  ▼. 
Com.  101  Va.  853,  45  S.  E.  327. 

The  appellees  are  merchanto  using  trad- 
ing sUmps  in  their  business.  They,  there- 
fore, have  no  legal  interest  in  the  question 
of  the  right  of  anyone  to  sell  stamps  te 
merchanU. 

Albany  County  t.  SUnley,  105  U.  8.  305, 
26  L.  ed.  1044;  Turpin  v.  Lemon,  187  U.  S. 
51,  47  L.  ed.  70,  23  Sup.  Ct.  Rep.  20;  The 
Winnebago  (Iroquois  Transp.  Co.  v.  De 
Laney  Forge  k  Iron  Co.)  205  U.  S.  354,  51 
L.  ed.  836,  27  Sup.  Ct.  Rep.  509;  Patsone  t. 
Pennsylvania,  232  U.  S.  138,  58  L.  ed.  539, 
34  Sup.  Ct.  Rep.  281. 

Mr.  Blackburn  Interline  also  argued 
the  cause  for  appellanU 

Mr.  W.  T.  DoTell  argued  the  cause,  and, 
with  Mr.  Frank  T.  Wolcott,  filed  a  brief  for 
appellees: 

As  authority  for  the  maintenance  of  this 
action  to  restrain  sUte  officers  from  the 
threatened  enforcement  of  an  unconstitu- 
•f8 


tional  enactment,  our  reliance  is  upon  the 
doctrine  of  Ex  parte  Young,  209  U.  8.  123, 
52  L.  ed.  714,  18  L.R.A.(N.S.)  932,  28  Sup. 
Ct  Rep.  441,  14  Ann.  Cas.  764,  and  Western 
U.  Teleg.  Co.  t.  Andrews,  216  U.  S.  165,  54 
L.  ed.  430,  30  Sup.  Ct  Rep.  286. 

The  act  is  prohibitive. 

Murphy  ▼.  California,  225  U.  S.  623,  56 
L.  ed.  1229,  41  L.RJL.(N.S.)  153,  32  Sup. 
Ct.  Rep.  697;  Rosenthal  v.  New  York,  226 
U.  8.  260,  57  L.  ed.  212,  33  Sup.  Ct.  Rep.  27, 
Ann.  Cas.  1914B,  71;  SUte  v.  Pitney,  79 
Wash.  608,  140  Pac.  918,  Ann.  Cas.  1916A, 
209. 

To  prohibit  the  conduct  of  the  business 
is  contrary  te  the  law  of  the  land. 

Cotting  V.  Kansas  City  Stock  Yards  Co. 
(Cotting  V.  Godard)  183  U.  S.  79,  46  L.  ed. 
92,  22  Sup.  Ct.  Rep.  30;  Dobbins  ▼.  Los 
Angeles,  195  U.  8.  223,  49  L.  ed.  169,  25 
Sup,  Ct.  Rep.  18;  Gulf,  C.  ft  S.  F.  R.  Co.  v. 
Ellis,  165  U.  S.  150,  41  L.  ed.  666,  17  Sup. 
Ct.  Rep.  255 ;  Halter  v.  Nebraska,  205  U.  S. 
34,  51  L.  ed.  696,  27  Sup.  Ct.  Rep.  419,  10 
Ann.  Cas.  525;  Holden  v.  Hardy,  169  U.  S. 
366,  42  L.  ed.  780,  18  Sup.  Ct  Rep.  383; 
Lawten  v.  Steele,  152  U.  S.  133,  38  L.  ed. 
385,  14  Sup.  Ct  Rep.  499;  Mugler  v.  Kan- 
sas, 123  U.  S.  623,  31  L.  ed.  205,  8  Sup.  Ct 
Rep.  273. 

Does  the  prohibition  fall  within  the  police 
power  because  it  tends  te  limit  extrava- 
gance? 

Allnutt  V.  Inglis,  12  East,  527,  11  Revised 
Rep.  482;  Cooley's  Bl.  Com.  bk.  1,  p.  125; 
Cooley,  Const.  Lim.  7th  ed.  p.  549;  Ex  parte 
Dickey,  144  Cal.  234,  66  L.ILA.  928,  103 
Am.  St.  Rep.  82,  77  Pac.  924,  1  Ann.  Cas. 
428;  2  Farrand,  Records  of  the  Federal 
Convention,  p.  344;  German  Alliance  Ins. 
Co.  y.  Lewis,  233  U.  S.  389,  58  L.  ed.  1011, 
L.RJL.1915C,  1189,  34  Sup.  a.  Rep.  612; 
Humes  v.  Little  Rock,  138  Fed.  929 ;  Keokee 
ConsoL  Coke  Co.  v.  Taylor,  234  U.  8.  224,  58 
L.  ed.  1288,  34  Sup.  Ct.  Rep.  856;  Noble 
SUte  Bank  v.  Haskell,  219  U.  8.  104,  55  L. 
ed.  112,  32  L.R.A.(N.S.)  1062,  31  Sup.  Ct 
Rep.  186,  Ann.  Cas.  1912A,  487 ;  Patsone  v. 
Pennsylvania,  232  U.  8.  138,  58  L.  ed.  539, 
34  Sup.  Ct  Rep.  281;  People  v.  Gillson,  109 
N.  Y.  389,  4  Am.  St  Rep.  465,  17  N.  E.  343; 
People  V.  Steele,  231  111.  340,  14  LJIJL 
(N.S.)  361,  121  Am.  St  Rep.  321,  83  N.  E. 
236;  People  ex  rel.  Appel  v.  Zimmerman, 
102  App.  Div.  103,  92  N.  Y.  Supp.  497; 
Pulhnan  Co.  v.  Knott,  235  U.  8.  23,  59  L. 
ed.  105,  35  Sup.  Ct.  Rep.  2;  Ex  parte  Quarg, 
149  Cal.  79,  5  L.R.A.(N.S.)  183,  117  Am. 
St  Rep.  115,  84  Pac.  766,  9  Ann.  Cas.  747; 
Seattle  v.  Dencker,  58  Wash.  501,  28  L.R.A. 
(N.8.)  446,  137  Am.  St  Rep.  1076,  108  Pac 
1086;  SUte  V.  Fir#  Creek  Coal  k  Coke  Ca 
33  W.  Va.  188,  6  L.R.A.  359,  25  Am.  St 
Rep.  891,  10  8.  E.  288;  Stickney,  SUte  Con- 

140  V.  8. 


1915. 


TANNER  V.  LITTLE. 


trol  of  Trade  k  Commerce,  chap.  1,  p.  100; 
Tiedeman,  Limitations  of  Pol.  Power,  p. 
154. 

Is  the  act  brought  within  the  police  power 
because  it  may  foster  intermediate  con- 
cerns? 

Denver  t.  Frueauff,  39  Colo.  20,  7  L.R.A. 
(N.S.)  1131,  88  Pac.  389,  12  Ann.  Gas.  521; 
Winston  v.  Bceson,  135  N.  C.  271,  65  L.R.A. 
167,  47  S.  E.  457;  Com.  v.  Gibson  Co.  125 
Ky.  440,  101  S.  W.  385;  People  ex  rel.  Mad- 
den V.  Dycker,  72  App.  Dir.  308,  76  N.  Y. 
Supp.  Ill;  People  ex  rel.  Appel  v.  Zimmer- 
man, 102  App.  Div.  103,  92  N.  Y.  Supp.  497; 
State  V.  Dalton,  22  R.  I.  77,  48  L.ILA.*  775, 
84  Am.  St.  Rep.  818,  46  Atl.  234;  State  v. 
Ramseyer,  73  N.  H.  81,  58  Atl.  958,  6  Ann. 
Cas.  445;  State  ex  rel.  Simpson  v.  Sperry 
A  H.  Co.  110  Minn.  378,  30  L.R.A.(N.S.) 
966,  126  N.  W.  120;  Wiseman  Y.  Tanner, 
221  Fed.  694. 

The  act  denies  equal  protection  of  the  law 
because  the  attempted  classification  for  the 
purpose  of  a  license  tax  is  purely  arbitrary. 

Bell's  Gap  R.  Co.  v.  Pennsylvania,  134  U. 
8.  232,  33  L.  ed.  892,  10  Sup.  Ct.  Rep.  533; 
Winston  v.  Beeson,  135  N.  C.  271,  65  L.R.A. 
167,  47  S.  E.  457;  Com.  v.  Gibson  Co.  125 
Ky.  440,  101  S.  W.  385;  Connolly  v.  Union 
Sewer  Pipe  Co.  184  U.  S.  540,  46  L.  ed.  679, 
22  Sup.  Ct.  Rep.  431;  Ex  parte  Drexel,  147 
Cal.  763,  2  L.R.A.(N.S.)  588,  82  Pac.  429, 
3  Ann.  Cas.  878;  Gulf,  C.  A  S.  F.  R.  Co.  v. 
Ellis,  105  U.  S.  150,  41  L.  ed.  666,  17  Sup. 
Ct.  Rep.  255 ;  Ex  parte  Hutchinson,  137  Fed. 
949;  Ex  parte  Hutchinson,  137  Fed.  950; 
Southern  R.  Co.  v.  Greene,  216  U.  S.  400, 
54  L.  ed.  536,  30  Sup.  Ct.  Rep.  287,  17  Ann. 
Cas.  1247 ;  Sperry  k  H.  Co.  v.  Temple,  137 
Fed.  992;  State  v.  Loomis,  115  Mo.  307,  21 
L.R.A.  789,  22  S.  W.  350. 

The  adjudicated  cases  have  held  the  class- 
ification arbitrary. 

Montgomery  v.  Kelly,  142  Ala.  552,  70 
L.R.A.  209,  110  Am.  St.  Rep.  43,  38  So.  67; 
Com.  V.  Gibson  Co.  125  Ky.  440,  101  8.  W. 
385;  Hewin  v.  Atlanta,  121  Ga.  723,  67 
L.R.A.  795,  49  S.  E.  765,  2  Ann.  Cas.  296; 
Ex  parte  McKenna,  126  Cal.  429,  58  Pac. 
916;  O'Keeffe  v.  Somerville,  190  Mass.  110, 
112  Am.  St.  Rep.  316,  76  N.  E.  457,  5  Ann. 
Cas.  684;  Van  Deman  k  L.  Co.  v.  Rast,  214 
Fed.  827. 

If  the  business  or  practice  is  lawful,  it 
may  not  be  prohibited  indirectly  by  a 
license  tax. 

Connolly  v.  Union  Sewer  Pipe  Co.  184  U. 
8.  560,  46  L.  ed.  690,  22  Sup.  Ct.  Rep.  431; 
Cooley,  Taxn.  3d  ed.  pp.  260,  1140,  1143; 
Flint  V.  Stone  Tracy  Co.  220  U.  S.  107,  55  I 
L.  ed.  389,  31  Sup.  Ct.  Rep.  342,  Ann.  Cas. 
1912B,    1312;    26    Harvard    L.    Rev.    682;  | 
Kehrer  t.  Stewart,  197  U.  S.  60,  49  L.  ed.  i 
663,  25    Sup.    Ct.    Rep.   403;    Kirtland   T. 
•0  L.  ed. 


Hotchkias,  100  U.  S.  491,  2^  L.  ed.  558; 
McCray  v.  United  States,  195  U.  S.  27,  49 
L.  ed.  78,  24  Sup.  Ct.  Rep.  769,  1  Ann.  Cafc. 
561;  M'Culloch  v.  Maryland,  4  Wheat.  316, 
4  L.  ed.  579;  3  McQuillin,  Mun.  Corp.  § 
1002;  Postal  Teleg.  Cable  Co.  v.  Charleston, 
153  U.  S.  692,  38  L.  ed.  871,  4  Inters.  Coul 
Rep.  637,  14  Sup.  Ct.  Rep.  1094;  Spencer 
V.  Merchant,  125  U.  S.  345,  31  L.  ed.  763, 
8  Sup.  Ct.  Rep.  921;  Union  P.  R.  Co.  v. 
Peniston,  18  Wall.  5,  21  L.  ed.  787 ;  Veazie 
Bank  v.  Fenno,  8  Wall.  533,  19  L.  ed.  482; 
Weston  V.  Charleston,  2  Pet.  449,  7  L.  ed. 
481;  Wiggins  Ferry  Co.  v.  East  St.  Louis, 
107  U.  6.  365,  27  L.  ed.  419,  2  Sup.  Ct.  Rep 
257. 

Repeated  attempts  to  enact  such  legisla- 
tion offer  no  argument  for  its  constitution- 
ality. 

Chaddock  t.  Day,  75  Mich.  527,  4  L.RJL. 
809,  13  Am.  St.  Rep.  468,  42  N.  W.  977; 
Gulf,  C.  k  S.  F.  R.  Co.  V.  Ellis,  165  U.  S. 
150,  41  L.  ed.  666,  17  Sup.  Ct.  Rep.  255; 
Marbury  v.  Madison,  1  Cranch,  137,  2  h, 
ed.  60. 

The  "retail  market  price"  provision  in  the 
act  renders  it  unconstitutional. 

Bishop,  Statutory  Crimes,  2d  ed.  §  41; 
Brown  v.  State,  137  Wis.  543,  119  N.  W. 
338;  Buckles  v.  State,  5  Okla.  Crim.  Rep. 
109,  113  Pac.  244;  Chicago  k  N.  W.  R.  Co. 
V.  Dey,  1  L.RJ^.  744,  2  Inters.  Com.  Rep. 
325,  35  Fed.  866;  Collins  v.  Kentucky,  234 
U.  S.  634,  58  L.  ed.  1510,  34  Sup.  Ct.  Rep. 
924;  Cook  V.  SUte,  26  Ind.  App.  278,  59 
N.  E.  489;  International  Harvester  Co.  v. 
Kentucky,  234  U.  S.  216,  58  L.  ed.  1284,  34 
Sup.  Ct  Rep.  853;  Kilboume  v.  State,  84 
Ohio  St.  247,  35  L.RJL(N.S.)  766,  95  N.  E. 
824;  2  Lewis's  Sutherland  Stat.  Constr.  2d 
ed.  §  520;  Louisville  k  N.  R.  Co.  v.  Com.  99 
Ky.  132,  33  L.R.A.  209,  59  Am.  St.  Rep. 
457,  35  S.  W.  129 ;  Matthews  v.  Murphy,  23 
Ky.  L.  Rep.  750,  54  L.RwA.  415,  63  S.  W. 
785;  Savage  ▼.  Wallace,  165  Ala.  572,  51 
So.  605;  Tozer  v.  United  SUtes,  4  Inters. 
Com.  Rep.  245,  52  Fed.  917. 

The  act  is  invalid  because  its  observance  ^ 
requires  the  removal  of  inserts. 

Asbell  V.  Kansas,  209  U.  S.  251,  52  L.  ed. 
778,  28  Sup.  Ct.  Rep.  485,  14  Ann.  Cas. 
1101;  Bettman  v.  Warwick,  47  C.  C.  A.  186, 
108  Fed.  46;  Com.  v.  R.  I.  Sherman  Mfg. 
Co.  189  Mass.  76,  75  N.  E.  71,  4  Ann.  Cas. 
268;  Felsenheld  v.  United  SUtes,  186  U.  S. 
126,  46  L.  ed.  1085,  22  Sup.  Ct.  Rep.  740; 
Halter  v.  Nebraska,  205  U.  S.  34,  51  L.  ed. 
696,  27  Sup.  Ct.  Rep.  419,  10  Ann.  Cas. 
525;  M'Culloch  v.  Maryland,  4  Wheat.  316, 
4  L.  ed.  579;  McDermott  v.  Wisconsin,  228 
U.  S.  115,  57  L.  ed.  754,  47  L.R.A.(N.S.) 
984,  33  Sup.  Ct.  Rep.  431,  Ann.  Cas.  1915A, 
39;  Missouri,  K.  ft  T.  R.  Co.  v.  Haber,  169 
U.  S.  613,  42  L.  ed.  878,  18  Sup.  Ct.  Rep. 


880,  881 


SUPREME  COURT  OF  THE  UNITED  STATES. 


OoT.  Tknc, 


488;  Mngler  ▼.  Kmnsas,  123  U.  S.  828,  81  L. 
ed.  208,  8  Sup.  Ct.  Rep.  278;  Northern  P. 
R.  Co.  ▼.  Wftflhington,  222  U.  S.  370,  56 
L.  ed.  237,  32  Sup.  Ct.  Rep.  160;  People  ex 
reL  MePike  t.  Van  De  Carr,  178  N.  Y.  425, 
66  L.R.A.  180,  102  Am.  St.  Rep.  516,  70 
N.  E.  965;  People  ex  rel.  Appel  ▼.  Zimmer- 
man, 102  App.  DiT.  103,  02  N.  Y.  Supp. 
497;  Savage  ▼.  Jones,  225  U.  S.  501,  56  L. 
ed.  1182,  32  Sup.  Ct.  Rep.  715;  Second  Em- 
ployers' Liability  Cases  (Mondou  y.  New 
York,  N.  H.  A  H.  R.  Co.)  223  U.  S.  1,  56 
L.  ed.  327,  38  L.RJL.(N.S.)  44,  32  Sup.  Ct. 
Rep.  169,  1  N.  C.  C.  A.  875;  Sinnot  ▼. 
Darenport,  22  How.  227,  16  L.  ed.  243; 
Smith  ▼.  Alabama,  124  U.  S.  465,  31  L.  ed. 
508, 1  Inters.  Com.  Rep.  804,  8  Sup.  Ct.  Rep. 
564;  Southern  R.  Co.  v.  Reid,  222  U.  S. 
424,  56  L.  ed.  257,  32  Sup.  Ct.  Rep.  140; 
Texas  ft  P.  R.  Co.  ▼.  Abilene  Cotton  Oil  Co. 
204  U.  S.  426,  51  L.  ed.  553,  27  Sup.  Ct. 
Rep.  350,  0  Ann.  Cas.  1075. 

The  excessive  penalty  renders  the  act  un- 
constitutionaL 

Bonnett  ▼.  Vallier,  136  Wis.  193,  17 
LJl.A.(N.S.)  486,  128  Am.  St.  Rep.  1061, 
116  N.  W.  885;  Consolidated  Oas  Co.  v. 
New  York,  157  Fed.  849;  Cotting  v.  Kansas 
City  Stock  Yards  Co.  (Cotting  v.  Godard) 
183  U.  S.  79,  46  L.  ed.  92,  22  Sup.  Ct.  Rep. 
30;  Grenada  Lumber  Co.  v.  Mississippi,  217  I 
U.  S.  483,  54  L.  ed.  826,  30  Sup.  Ct.  Rep. 
535;  Missouri  P.  R.  Co.  v.  Tucker,  230  U. 
S.  340,  57  L.  ed.  1507,  33  Sup.  Ct.  Rep. 
961;  Portland  R.  Light  k  P.  Co.  v.  Port- 
land, 201  Fed.  119;  Reagan  v.  Farmers' 
Loan  k  T.  Co.  154  U.  S.  362,  38  L.  ed.  1014, 
4  Inters.  Com.  Rep.  560,  14  Sup.  Ct.  Rep. 
1047;  Southwestern  Oil  Co.  v.  Texas,  217 
U.  S.  114,  54  L.  ed.  688,  30  Sup.  Ct.  Rep. 
496;  SUte  V.  Crawford,  74  Wash.  248,  46 
L.R.A.(N.S.)  1039,  133  Pac.  590;  United 
States  ex  rel.  Atty.  Gen.  y.  Delaware  k  H. 
Co.  213  U.  S.  866,  53  L.  ed.  836,.  29  Sup. 
Ct  Rep.  527;  Waters-Pierce  Oil  Co.  v. 
Texas,  212  U.  S.  112,  53  L.  ed.  431,  29  Sup. 
Ct  Rep.  227;  Ex  parte  Young,  209  U.  S. 
128,  52  L.  ed.  714,  13  L.RJL.(N.S.)  932,  28 
Sup.  Ct.  Rep.  441,  14  Ann.  Cas.  764.  1 

[380]  Mr.  Justice  McKenna,  after  stat- 
ing the  case  as  above,  delivered  the  opinion 
of  the  court: 

The  court  ruled  against  the  motions  to 
dismiss,  and,  concurring  with  the  ruling  as 
far  as  it  retained  jurisdiction  of  the  suits 
and  the  persons  of  the  defendants,  we  pass 
to  the  consideration  of  the  validity  of  the 
statute  of  the  state.  Of  that  it  was  said: 
'The  court  is  fully  aatisfled  from  a  bare  in- 
spection of  the  act  without  more,  and  with- 
out considering  the  affidavits  on  file,  that  it 
is  and  was  intended  to  be  prohibitive  of  the 
business  methods  against  which  it  is  direct- 
fOO 


ed.  It  is  plainly  manifest  thfi  no  mer- 
chant could  afford  to  pay  the  sum  of  $6,000 
annually  for  the  mere  privilege  of  giving 
away  trading  stamps  or  allowing  discounts 
on  his  cash  sales.  But  if  this  were  the  only 
objection  to  the  act,  it  may  be  that  tfaie 
courts  would  be  powerless  to  enjoin  its  exe- 
cution. The  power  of  taxation  rests  upon 
necessity  and  is  inherent  in  every  inde- 
pendent state.  It  is  as  extensive  as  the 
range  of  subjects  over  which  the  govern- 
ment extends;  it  is  absdlute  and  unlimited, 
in  the  absence  of  constitutional  limitations 
and  restraints,  and  carries  with  it  the 
poweV  to  embarrass  and  destroy.  Postal 
Teleg.  Cable  Co.  v.  Charleston,  153  U.  8. 
699,  38  L.  ed.  874,  4  Inters.  Com.  Rep.*  637, 
14  Sup.  Ct.  Rep.  1094;  McCray  v.  United 
States,  195  U.  S.  27,  49  L.  ed.  78,  24  Sup.  Ct. 
Rep.  769,  1  Ann.  Cas.  561 ;  Kehrer  v.  Stew- 
art, 197  U.  S.  60,  49  L.  ed.  603,  26  Sup.  Ct. 
Rep.  403."     [208  Fed.  609.] 

The  charge  of  discrimination  against  the 
statute  was  decided  to  be  a  factor  as  to  its 
validity.  The  use  of  trading  stamps  and 
other  similar  devices  was  regarded  as  a 
legitimate  system  of  advertising,  and  that 
to  distinguish  it  from  other  systems  of 
advertising  was  a  violation  of  the 
equality  clause  of  the  Federal  Consti- 
tution. And  it  was  said:  "As  well 
might  the  legislature  classify  separately 
those  who  advertise  in  the  columns  of  the 
daily  papers,  by  bill  boards,  or  by  electrical 
signs,  and  impose  a  tax  upon  them  to  the 
exclusion  of  others  engaged  in  the  same 
business  or  calling  who  do  not  so  advertise." 
[381]  In  this  conclusion  we  think,  for  the 
reasons  expressed  in  Rast  v.  Van  Deman  k 
L.  Co.  just  decided  [240  U.  S.  342,  ante,  679, 
36  Sup.  Ct.  Rep.  370],  that  the  court  erred. 
We  have  been  at  pains  to  summarize  the 
bill  in  this  case  to  show  its  similitude  to 
that. 

The  coupons  in  this  case,  in  compliance 
with  the  law  of  the  state  of  Washington 
(Laws  of  1907,  p.  742),  must  be  redeemed 
in  cash  if  demanded  by  the  purchaser; 
otherwise  in  articles  of  merchandise  selected 
by  him.  The  redemption  of  the  coupons  in 
some  instances  is  directly  by  the  merchant 
issuing  them;  in  others,  it  is  alleged,  by  "a 
third  party,  with  whom  said  complainants 
have  a  contract  for  the  use  of  their  trading 
stamps  or  coupons  used  in  connection  there- 
with and  the  redemption  thereof  in  mer- 
chandise." These  differences,  however,  do  not 
affect  the  principle  announced  in  No.  41. 
Whether  the  coupona  are  prepared  by  the 
issuing  merchant  or  prepared  by  another, 
whether  they  be  redeemed  by  him  or  by  an* 
other,  is  but  a  phase  of  the  system,  not  af- 
fecting its  essential  character.  And  we  may 
say  here,  as  we  said  in  No.  41,  that  we  are 

840  U.  8; 


J015. 


TANNSR  ▼.  LITTLS. 


881-383 


not  concerned  with  consideration  of  a  busi- 
neia  in  which  coupons,  etc,  are  issued  or 
used  and  not  redeemed  in  merchandise;  that 
is,  where  they  are  used  as  a  rebate  upon  the 
price  of  the  article  or  a  discount  upon  pur- 
chases, nor  with  the  legality  of  a  statute 
which  should  regulate  or  prevent  such  use  of 
the  coupons  disassociated  from  other  uses  of 
them.  Complainants  contend  for  a  broad 
use,  and  assert  tlu:t  there  cannot  legally  be 
any  limitation  of  their  methods  of  redemp- 
tion, which  they  comprehensively  denomi- 
nate the  "premium  system." 

The  opinion  in  No.  41  is,  therefore,  de- 
cisive of  the  contentions  in  this  case.  We 
said  there  that  there  were  manifest  dif- 
ferences between  the  "premium  system"  of 
advertising  and  the  other  methods  enum- 
erated, and  that  those  differences  justified  a 
difference  in  measures.  And  this  is  justified 
not  only  by  the  wide  [382]  discretion  which 
may  be  exercised  in  legislation,  but  by  a 
rigid  principle  of  classification.  Classifi- 
cation is  not  different  in  law  than  in  other 
departments  of  knowledge.  "It  is  the 
grouping  of  things" in  speculation  or  prac- 
tice because  they  'agree  with  one  another  in 
certain  particulars  and  differ  from  other 
things  in  those  particulars.'"  Billings  v. 
Illinois,  188  U.  S.  97,  102,  47  L.  ed.  400, 
403,  23  Sup.  Ct.  Rep.  272.  Upon  what  dif- 
ferences or  resemblances  it  may  be  exercised 
depends  necessarily  upon  the  object  in  view, 
may  be  narrow  or  wide  according  to  that 
object.  Red  things  may  be  associated  by 
reason  of  their  redness,  with  disregard  of 
all  other  resemblances  or  of  distinctions. 
Such  classification  would  be  logically  ap- 
propriate. Apply  it  further:  make  a  rule  of 
conduct  depend  upon  it,  and  distinguish  in 
legislation  between  red-haired  men  and 
black-haired  men,  and  the  classification 
would  immediately  be  seen  to  be  wrong;  it 
would  have  only  arbitrary  relation  to  the 
purpose  and  province  of  legislation.  The 
power  of  legislation  over  the  subject-matter 
is  hence  to  be  considered.  It  may  not  make 
the  distinction  adverted  to,  but  it  may  make 
others  the  appropriateness  of  which,  con* 
sidered  logically,  may  be  challenged;  for 
instance:  between  sales  of  stock  upon 
margin  or  for  immediate  or  future  delivery 
(Otis  V.  Parker,  187  U.  S.  600,  47  L.  ed. 
323,  23  Sup.  Ct.  Rep.  168);  between  acts 
directed  against  a  regularly  established 
dealer  and  one  not  so  established  (Central 
Lumber  Co.  v.  South  Dakota,  226  U.  S.  157, 
€7  L.  ed.  164,  33  Sup.  Ct.  Rep.  66) ;  in  an 
inspection  law,  between  coal  mines  where 
more  than  five  men  are  employed  and  coal 
mines  where  that  or  a  lesser  number  are  em- 
ployed (Consolidated  Coal  Co.  v.  Illinois, 
186  U.  S.  203,  46  L.  ed.  872,  22  Sup.  Ct. 
Rep.  616) ;  and  a  like  distinction  in  a  work- 
•0  Jj.  ed. 


men's  compensation  law  (Jeffrey  Mfg.  Co. 
V.  Blagg,  235  U.  S.  571,  50  L.  ed.  364,  35 
Sup.  Ct  Rep.  167,  7  N.  C.  C.  A.  570) ;  be- 
tween a  combination  of  purchasers  and  a 
combination  of  laborers  (International 
Harvester  Co.  v.  Missouri,  234  U.  S.  199, 
58  L.  ed.  1276,  52  L.R.A.(K.S.)  525,  34  Sup. 
Ct.  Rep.  859) ;  between  residents  and  non- 
residents (Travellers'  Ins.  Co.  v.  Connecticut, 
185  U.  S.  364,  46  L.  ed.  949,  22  Sup.  Ct.  Rep. 
673) ;  in  a  law  requiring  railroads  to  heat 
passenger  coaches,  between  roads  of  50  miles 
and  [383]  roads  of  that  length  or  less  ( New 
York,  N.  H.  k  H.  R.  Co.  v.  New  York,  165 
U.  S.  628,  41  L.  ed.  853,  17  Sup.  Ct.  Rep. 
418;  see  also  Dow  v.  Beidelman,  125  U.  S. 
680,  31  L.  ed.  841,  2  Inters.  Com.  Rep.  56,  8 
Sup.  Ct.  Rep.  1028;  Postal  Teleg.  Cable  Co. 
V.  Adams,  155  U.  S.  688,  39  L.  ed.  311,  5 
Inters.  Com.  Rep.  1,  15  Sup.  Ct.  Rep.  268, 
360) ;  between  theaters  according  to  the 
price  of  admission  (Metropolis  Theatre  Co. 
V.  Chicago,  228  U.  S.  61,  57  L.  ed.  730,  33 
Sup.  Ct.  Rep.  441) ;  between  landowners  as 
to  liability  for  permitting  certain  noxious 
grasses  to  go  to  seed  on  the  lands  (Mis- 
souri, K.  k  T.  R.  Co.  V.  May,  194  U.  S.  267, 
48  L.  ed.  971,  24  Sup.  Ct.  Rep.  638) ;  be- 
tween businesses  in  the  solicitation  of 
patronage  on  railroad  trains  and  at  depots 
(WiUiams  v.  Arkansas,  217  U.  S.  70,  54  L. 
ed.  673,  30  Sup.  Ct.  Rep.  493,  18  Ann.  Cas. 
865);  and  a  distinction  based  on  the  evi- 
dence of  the  qualifications  of  physicians 
(Watson  V.  Maryland,  218  U.  S.  179,  54  L. 
ed.  990,  30  Sup.  Ct.  Rep.  644 ) . 

Those  were  instances  (and  others  might 
be  cited)  of  the  regulation  of  conduct  and 
the  restriction  of  its  freedom,  it  being  the 
conception  of  the  legislature  that  the  regu- 
lation and  restriction  were  in  the  interest 
of  the  public  welfare.  Those  classifications 
were  sustained  as  legal,  being  within  the 
power  of  the  legislature  over  the  subject- 
matter,  and  having  proper  bases  of  com- 
munity. 

But  the  classification  which  was  sus- 
tained in  Consolidated  Coal  Co.  v.  Illinois, 
185  U.  S.  203,  46  L.  ed.  872,  22  Sup.  Ct. 
Rep.  616,  was  condemned  in  Truax  v.  Raich, 
239  U.  S.  33,  ante,  131,  36  Sup.  Ct.  Rep.  7. 
The  statute  in  the  latter  case  required  em- 
ployers of  more  than  five  workers  at  any  one 
time  to  employ  not  less  than  80  per  cent 
qualified  electors  or  native-born  citizens  of 
the  United  States  or  of  some  subdivision  of 
such.  The  statute  was  held  void  because 
there  was  no  authority  to  deal  with  that  at 
which  the  legislation  was  aimed.  And  this 
is  important  to  be  kept  in  mind.  If  there 
is  no  such  authority,  a  classification,  how- 
ever logical,  appropriate,  or  scientific,  will 
not  be  sustained;  if  such  authority  exist,  a 
classification  may  be  deficient  in  those  at- 


383-386 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tsui, 


tributes,  may  be  harsh  and  oppressive,  and 
yet  be  within  the  power  of  the  legislature. 
This  has  been  declared  many  times.  Let  us 
•  apply  the  test  to  the  case  at  bar.  Let  it 
be  granted  that  the  "premium  system"  is  a 
method  of  advertising;  can  there  not  be 
differences  in  advertising  [384]  which  may 
be  subject  to  differences  jm  legislation  ?  Can 
there  not  be  advertising  at  places  or  at 
times  or  in  kind  or  effect  subversive  of  pub- 
lic order  or  convenience?  Fifth  Ave.  Coach 
Co.  V.  New  York,  221  U.  S.  467,  66  L.  ed. 
816,  31  Sup.  Ct.  Rep.  709;  Com.  ▼.  Mc- 
Cafferty,  145  Mass.  384,  14  N.  E.  451.  How- 
ever, a  decisive  answer  to  the  questions  need 
not  be  given,  for  we  have  said,  in  Rast  v. 
Van  Deman  k  L.  Co.  that  the  ''premium 
system"  is  not  one  of  advertising  merely. 
It  has  other,  and,  it  may  be,  deleterious, 
consequences.  It  does  not  terminate  with 
the  bringing  together  of  feller  and  buyer, 
the  profit  of  one  and  the  desire  of  the  other 
satisfied,  the  article  bought  and  its  price 
being  equivalents.  It  is  not  so  limited  in 
purpose  or  effect.  It  has  ulterior  purpose, 
and  how  it  has  developed  complainants 
vividly  {represent  by  their  averments.  It  ap- 
pears that  companies  are  formed,  called 
trading  stamp  companies,  l  which  extend 
and  facilitate  the  schemes,  making  a  seller 
of  merchandise  their  agent  for  the  distri- 
bution of  stamps  to  be  redeemed  by  them  or 
other  merchants,  the  profit  of  all  being  se- 
cured through  the  retail  purchaser  who  has 
been  brought  under  the  attraction  of  the 
system.  There  must,  therefore,  be  some- 
thing more  in  it  than  the  giving  of  dis- 
counts, something  more  than  the  mere 
laudation  of  wares.  If  companies— evolved 
from  the  system,  as  counsel  say  in  justifi- 
cation of  them — are  able  to  reap  a  profit 
from  it,  it  may  well  be  thought  there  is 
something  in  it  which  is  masked  from  the 
common  eye,  and  that  the  purchaser  at  re- 
tail is  made  to  believe  that  he  can  get  more 
out  of  the  fund  than  he  has  put  into  it, 
something  of  value  which  is  not  offset  in 
the  prices  or  quality  of  the  articles  which  he 
buys.  It  is  certain  that  the  prices  he  pays 
make  the  [385]  efficiency  of  the  system  and 
the  fund,  if  we  may  individualize  it,  out  of 
which  the  cost  of  the  instruments  and 
agents  of  the  system  must  be  defrayed  and 
the  profit  to  all  concerned  paid.  The  sys- 
tem, therefore,  has  features  different  from 
the  ordinary  transactions  of  trade  which 

iLansburgh  v.  District  of  Columbia,  11 
App.  D.  C.  512;  State  ex  rel.  Simpson 
y.  bperry  k  H.  Co.  110  Minn.  378,  30  L.R.A. 
(N.S.)  066,  126  N.  W.  120;  State  ▼.  Under- 
wood, decided  October  18,  1015,  by  the  su- 
preme court  of  Louisiana;  Hewin  v.  At- 
lanta, 121  Ga.  723,  67  L.RJ^.  705,  40  S.  E. 

Z0^,  2  Ann.  Cm,  296, 

702 


have  their  impulse,  as  we  have  said,  in  im- 
mediate and  definite  desires  having  definite 
and  measurable  results.  There  may  be  Ib 
them  at  times  reckless  buying,  but  it  is  not 
provoked  or  systematized  by  the  seller. 

Complainants  charge  that  the  tax  of  the 
statute  is  not  upon  the  business,  but  upon 
its  incidents.  Tlie  separation  is  artifidaL 
It  is  the  incidents  which  give  character  to 
the  business,  affecting  it  with  evil,  it  was 
thought,  provoking  therefore  against  it  the 
power  of  the  state,  and  taking  away  from 
it  the  immunity  it  else  might  have. 

It  is  unimportant  what  the  incidents  may 
be  called,  whether  a  method  of  advertising, 
discount  giving,  or   profit  sharing.     Their 
significance*  is  not  in  their  designations,  but 
in  their  infiuence  upon  the  public  welfare. 
And  of  this  the  judgment  of  the  legislature 
must  prevail,  though  it  be  controverted  and 
opposed  by  arguments  of  strength.     Nor  is 
there  support  of  the  system  or  obstruction 
to  the  statute  in  declamation  against  sump- 
tuary laws,  nor  in  the  assertion  that  there 
is  evil  lesson  in  the    statute,    nor    in    the 
prophecies  which  are  ventured  of  more  seri- 
ous    intermeddling    with    tlie    conduct    of 
business.    Neither  the  declamation,  the  as- 
sertion, nor  the  prophecies  can  influence  a 
present  judgment.    As  to  what  extent  legis- 
lation should  interfere  in  affairs   political 
philosophers  have  disputed  and  always  will 
dispute.    It  is  not  in  our  province  to  engage 
on  either  side,  nor  to  pronounce  anticipatory 
judgments.    We  must  wait  for  the  instance. 
Our  present  duty  is  to  pass  upon  the  stat- 
ute before  us,  and  if  it  has  been   enacted 
upon  a  belief  of  evils  that  is  not  arbitrary 
we  cannot  measure  their  extent  against  the 
estimate    of    the    legislature.     McLean     ▼. 
Arkansas,  211  U.  S,  530,  53  L.  ed.  315, 20  Sup. 
Ct.  Rep.  206.    Such  belief  [386]  has  many 
examples  in  state  legislation,  and,  we  have 
seen,  it  has  persisted  against  adverse  judi- 
cial opinion.    If  it  may  be  said  to  be  a  judg- 
ment from  experience  as  against  a  judgment 
from  speculation;  certainly,  from  its  gener- 
ality, it  cannot  be  declared  to  be  made  in 
mere   wantonness.    Central  Lumber   Co.  v. 
South  Dakota,  226  U.  S.  167,  100,  57  L.  ed. 
164,  160,  33  Sup.  Ct.  Rep.  66;   Purity  Ex- 
tract A  Tonic  Co.  v.  Lynch,  226  U.  S.  102, 
204,  205,  57  L.  ed.  184,  188,  180,  33  Sup. 
Ct.  Rep.  44. 

Discrimination  aside,  the  power  to  enact 
the  legislation  we  need  not  discuss,  but  may 
refer  to  the  opinion  in  No.  41.  Of  course, 
it  is  in  the  exercise  of  the  police  power  of 
the  state.  We  will  not  here  define  it  or  it» 
limitations.  As  was  said  by  Mr.  Justice 
Brown,  in  Cam  field  v.  United  States,  167  U. 
S.  518,  524,  42  L.  ed.  260,  262,  17  Sup.  Ct 
Rep.  864,  citing  Rideout  ▼.  Knox,  148  Masiu 
368,  2  L.R.A.  81,  12  Am.  St  Rep.  660,  10 

S40  U.  8. 


1»1C                                          PITNEY  T.  WASHINaTON.  IN,  W7 

N.  E.  390:    "Th*  police  power  !■  not  mbject  The  extonaiTe  use  of  thU  eTstcni  of  ad- 

to  aaj  dednite  limitation*,  but  ia  coexten-  rertiafng  ia  ao  much  %  matter  of  conunOB 

aive  with  the  neceaaitiea  of  the  can  mud  the  knowledge  th>t  many  courta,  having  under 

taf^liard  of  tiie  public  iatcreats."  eonaideration  atatutea  aimiUr  to  that  hen 

In  the  view  Uiat  the  license  is  prohlbitlva  involved,  have  referred  to  that  fact, 

we  may  concur,  and  concede  that  aueh  ia  the  People  ex  rel.  Appel  t.  Zimmerman,  102 

effect  given  it  bj  the  supreme  court  of  the  App.  DIt,  103,  98  N.  Y.  Supp.  497 ;  State 

aUte  in  SUte  v.  Pitney,  BO  Waih.  699,  141  ei    rel.   Simpaon   v.    Bperry   t   H.    Co.    110 

Pac.  BS3,  one  of  the  casea  submitted  with  Hinn.  376,  30  L.R.A.(N.S.)  060,  126  N.  W. 

thia  one.    And  we  think   it  was  competent  ISOj  State  ex  rel.  Hartigan  v.  Sperry  t  H. 

for  the  sUte  to  give  it  that  effect.  The  cases  Co.  »4  Neb.  T8S,  4»  L.R.A.(N.S.)   1123,144 

cited  by  Judge  Rudkin  and  those  cited  io  the  N.  W.  70S;  State  v.  Dodge,  76  Vt.  1B7,  06 

opinion  in  No.  41  ao  eatabllah.  AtL  083,  1   Ann.  Cai.  47 ;   Young  v,    Com. 

For  answer  to  the  other  contentions  which  101  Va.  863,  4S  S.  B.  327. 

we  consider  material  to  notice  we  refer  to  The  lawfulness  of  the  trading  stamp  and 

No.  41.  premium  advertising  business  has  often  been 

Decree  reversed  and  case  remanded  with  auatained. 
directions  to  dUmiaa  the  bllL  SUte  t.  Dodge,  76  Vt.  197,  66  Atl.'  9S3,  1 
Ann.  Caa.  47;   Young  v.  Com.  101  Va.  868, 
4S  S.  E.  327;   People  ».  Gillson.  100  N.  Y. 

ST.T.  0,  w^smo^N.  lJ*''-4^  .V„":,J'  ,^f- ™;  « 

<8ee  S.  C.  Reporter-a  ed.  387-391.)  "';   ^P^   !;    Zimmerman,    lOZ    A  pp.    Div. 

'                           "^  103,  92  N.  Y.  Supp.  497;    Winston  v.  Bee 

This  ease  Is  governed  by  the  decisions  In  •»»'  135  N.  C.  271,  66  L.R.A.  167.  47  S.  E. 

Itast  r.  Van  Deman  t  Lewis  Campany  and  457;  SUte  t.  Bamseyer,  73  N.  H.  31,  68  Atl. 

7ann«r  t.  Uttle,  ante,  670,  601.  966,  6  Ann.  Caa.  446;  Ex  parte  Drexel,  147 

Cal.  772,  2  Ul.A.(N.S.)    588,  62  Pac.  420, 

[No.  242.]  3  Ann.  Caa.  876;   £i  parte  West,  147  Cal. 

774,  82  Pac.  434;  Montgomery  v.  Kellv,  142 

-Argued  November  1  and  2,  1016.    Decided  ^i..  552^  79  l.r^.  209,  110  Am.  St!  Rep. 

March   6,   1016.  O^   38    g,,    57.    gj^te    ex    rel.    Simpson    v. 

Ivr  r-DDou  .     .u     D.               ,>     ^     t  ^i.  Bperry  ft  H.  Co.   110  Minn.  376,  30  L.RA. 

N  ERROR  to  the  Supreme  Court  of  the  (JJgj  ggg    ,26  N.  W.  120;  State  v.  Caa- 

SUte  of   Washington  to  review  a  jndg-  ^,5  j^^    ,    30  ^^1    ^     ^.^.^^   ^ 

ttent  which    OB  a  Kcond  appeal,  affirmed  a  j^^t^         2O8  Mass.  807,  B4  N.  E.  848;  Peo- 

convictten  In  the  Superior  Court  of  King  ,^  ^  ^^,   ^^^^^^  ,  ^^^      j2   .        jjj, 

Ctounty,  m  that  aUto,  for  ua.ng  redeemable  ^^g    ^^  jj  ^    g           jj^^   C^    ,    fiJieraon, 

T*^""",^^^^^ ''"*'""  IIW  Ma8»-  1«.  «  N.  E.  669;  Territory  t. 

See  same  caae  below,  80  Wash.  600.  141  ^  ^  ^  ^^^^   ,8,  P^  ^^g.  ^^  ^H. 

*^    V'.            ^  *  J  .     *..         i  .  ^-  '^^  F'*"!"    (Md.)    Baltimore  Daily  Roc- 

The  facU  are  aUted  in  the  opinion.  ,^^_  (^  j_  jg^g.  ^^^  ^  g   ^  /  T^. 

Mr.  Ixtuls  Marshall  argued  the  cause,  pie.   137   Fed.   992;    Bx  parte  Hutchinson, 

«nd,  with  Mr.  Sol.  M.  Stroock,  filed  a  brief  I3T  Fed.  9S0;  Sperry  ft  H.  Co.  v.  Brady,  134 

for  plaintiff  in  error;  B'ed.   691;    Sperry  ft  H.   Co.  v.   Mechanics' 

The    Washington    statute    under    which  Clothing  Co.  136  Fed.  633;  Sperry  ft  H.  Co. 

the    plaintiff    in    error    has    l>een    convicted  r.  Tftcoma,  190  Fed.  682;  Van  Deman  ft  L. 

violates  the  I4th  Amendment,  in  that  it  de-  :^  r.  Rast,  214  Fed.  627;  SUU  v.  Shugart, 

prlves  him  of  his  liberty  and  property  with-  138  Ala.  86,   100   Am.  St.  Rep.  17,  36  80. 

out  due  process  of  law.  !8;    Ex  parte   McKenna,    126    Cal.   420,   58 

Butchers'  Union  S.  H.  ft  L.  8.  L.  Co.  v.  Pac.  018;  Denver  v.  Frueauff,  39  Colo.  20, 

Orescent  City,  L.  8.  L.  ft  8.  H.  Co.  Ill  U.  r  L.RA..(N.S.)    1131,  86  Pac.  3S9,  12  Aim. 

S.  746,  762,  28  L.  ed.  685,  688,  4  Sup.  Ct.  3as.  521;   Hewin  v.  Atlanta,  121  Qa.   731, 

Rep.   652;    PoweU  v.   Pennsylvania,   127   U.  IT   L.RjL  795,  40   S.  E.  766,  2  Ann.  Caa. 

a.  678,  684,  32  L.  ed.  253,  266,  8  Sup.  Ct.  !»6;   Long  v.  SUte,  74  Md.  665,  12  L.R.A. 

Rep.  002,  1267;  Allgoyer  v.  Louisiana,  165  I2S,  22  AtL  4;   SUte  ex  rel.  Hartigan  t. 

U.  S.  689,  41  L.  ed.  836,  IT  Sup.  Ct.  Rep. ,  dperry  ft  H.   Co.   04   Neb.  786.  49   L.RJL 

427;  Coppag^v.  Kansas,  236  U.  B.  1,  14,  59  (N.S.)    1123,   144  N.  W.  796;   Leonard  t. 

L.  ed.  441,  446,  L.Rjl.l915C,  960,  36  Sup.  Ct.  Baasindale,  48  Wash.  301,  80  Pac  879. 

Rep.   240;    Com.  t.  fiisaon,  178  Masa.  578, 1  Similar  in  principle  are: 

60  N.  E.  385,                                                    '  Schnaier  v.  Navarre  Hotel  ft  ImporUtlon 

•0  u  cd.  t^^ 


SUPREME  COURT  OF  THE  UNITED  STATEa              Oot.  IteH, 

On.  182  N.  T.  83,  TO  L.R.A.  T22,  103  Am  916;  (TKetBt  t.  SomarrlUa,  100  Uua.  110, 

St  Rep.  TOO,  T4  N.  E.  561 ;  Peopla  ex  rd  112  Am.  St.  Rep.  Sie,  76  N.  B.  4S7,  9  Ann. 

Uoakowiti  v.  Jenkini,  202  M.  Y.  63,   SI  Cm.  B84;  Com.  t.  Oibwm  Co.  12fi  Kj.  440, 

L.R.A.(N.S.)    107B,  9*  N.  E.  lOOS;  Hbumi  101  3.  W.  386:  Eewin  t.  AtUnte,  121  Ga. 

T.  North   Britlih  t  M.  Id>.  Co.  206  N.  Y  731,  67   L.ILA.  706,  4S  B.  B.  786,  2  Ann. 

405,  42  LJt.A.(N.5.)    1139,  100  N.  £.  62  Cm.  296;  Hame*  t.  Lltth  Rock,  138  F«d. 

Ann.  Caa.  1B14B,  263;  SUt«  ei  rel.  Wyatt  920;  Winitm  t.  BeeMn,  13S  N.  C.  271,  65 

r.  Aahbrook,  154  Mo.  376,  48  L.R.A  266,  77  L.RjL  167,  47  6.  E.  457;  Trading  Stamp 

Am.  St.  Rep.  785,  G5  8.  W.  627;   Smith  t  Co.  v.  Memphis,  101  Tenn.   181,  47   8.  W. 

TeiM,  233  U,  8.  630,  68  L.  ed.  1129,  L.R.A  136;   Spcrry  A.  H.  Co.  v.  Taooma,  190  Fed. 

1916D,  677,  34  Sup.  Ct.  Bep.  681,  Ann.  Cm.  6B2;  Little  v.  Tanner,  208  Fed.  606;  Tan 

IB16D,   420.  Deman  A.  L.  Co.  t,  Rast,  214  Fed.  827;  Peo- 

Although   the   police   power   is  extensive,  pie  ex   rel.   Farrington    t.   Mensehing,   187 

and  there  is  a  present  tendency  to  enlarge  N.  Y.  B,  10  L.R.A.(N.S.)  S26,  79  N.  E.  BS4, 

its  boundaries,  it  is  nevertheless  subordi.  10  Ann.  Cas.  101 ;  People  ex  rel.  Moakowiti 

nate  to  the  constitutional  guaranties  of  lite,  *■  Jenkins,  202  N.  Y.  53,  36  L.RJl.(NJ3.) 

liberty,  and  property.  1079,  04  N.  E.  1065;  Smith  t.  TexM,  233 

Lochner  t.  New  York,  198  U.  8.  66,  40  U.  8.  630,  58  L.  ed.  1120,  LJLA.lftlSD,  677, 

L.  ed.  941,  25  Sup.  Ct  Rep.   639.   3   Ann.  34  Sup.  Ct.  Rep.  681,  Ann.  Cm.  1B1SD,  420; 

<^M.  1133;  Coppage  v.  KansM,  236  U.  S.  1,  Gulf,  C.  k  S.  F.  R.  Co.  v.  Ellis,  165  U.  8. 

6S   L.   ed.  441,   L.R.A.1016C,   060.   35   Sup.  150,  41  L.  ed.  066,  17  Sup.  Ct  Rep.  266; 

Ct.  Rep.   240;    Wright  v.  Hart,   1B2  N.   Y.  Coning   v.   Kansas   City   Stock   Yards   Co. 

SSS,  2  L.R.A.(N.S.)    338,   76  N.  £.  404,   3  (Cotting  v.  Godard)  183  U.  8.  70,  46  L.  ed. 

Ann.  Cas.  263;  Allgeyer  v.  Louisiana,  165  BZ,  22  Sup.  Ct.  Rep.  30;  ConnoUf  t.  Union 

U.  8.  G89,  41  L.  ed.  836,  17  Sup.  Ct.  Rep.  Sewer  Pipe  Co.  184  U.  8.  640,  46  L.  ed.  686, 

427;  State  v.  Loomia,  116  Mo.  307,  21  L.R.A.  22  Sup.  Ct.  Rep.  431. 
769,  22  S.  W.  350;  Otis  T.  Parker,  1B7  U. 
S.  606.  47  L.  ed.  323,  23  Sup.  Ot.  Rep.  168; 


Pbelpa.  144  Wis.  1.  35  L.R.A.(N.S.)    3fi3, 
128  N.   W.    1041;    Bonnrtt   v.   Vallier, 


experience    most    prevalent,    that    la    su^- 

WU.  1.3,  17  L.ll.i.(N.S.l  «6,  la  A..  St     l|"'„°"jrf  T.'m  Su^'S.'S.V 
Hep.  IMl,  11.  N.  W.  ..5,  T..ll„r  ,.  Bll-    "^^  ^^^,    cS^.L^T^tJlUll 


136  N.  Y.  677,  IB  L.R.A.  543.  32  N.  E.  B76; 


Sup.  Ct.   Rep.   114;   Miller  v.   Wilsca,   236 


Colon  r.  Liik.  153  N.  Y.  188,  60  Am.  St  n   s   ^ja   IS,    ^'iT^™  ^Tl' ^ 

w, .nn     .,   „    c    -n-     i.       i    t     i.-  l  U.  B.  373,   383,  5S  L.  ed.  328,  631,  I,iR  A. 

Bep.  809,  47  N.  E.  302;   FrMk  L.  Fisher  .(...i.   .nQ    .^  r„„   r-.    n..   «.a 

CO.V.  Wood.,  187N.  Y.  00,  12L.R.A.(N.S,)  S' ??Lk^  ,    'f     l,      ''  ^   „       a 

707,  73  N.  E.  836,  Cl.le.gi,  B.  »  Q.  E.  Oe.  J^'^.S"^"'   "'  ''""  °'   "■""   '^ 

Sup.  CI.  Sep.  341,  4  Ano   C...  1175,  Peipl,  ..fT^   ,'i'"S   ,'S*'.'f   V'  i"' 

.,  OiM„„,   109  N.  Y.  388,  4  An.,   kt.  E^p.  !|-  ?}.}•   ">■   ^-  ^'   '   ^-P-   «•   «V- 

405,  17  N.  E.  343;  StaUT.  Dalton,  22  B.  I.  ~     „       „    ,          _,     , 

77,  48  L.Ei.  775   84  A».  St.  Rep.  818,  48  ™'  ""  y?'"  ""^  -I  -PP"!.  >•  'M  In 

Atl    234  iccord  with  this  court  as  to  the  Bitent  and 

Thl.  HW.i™  deprive,  meretaot.  who  *=«?  °' ''*  rll"  """"■ 

?.    .        ,       .    "^           .  Ha  .lacnhn.  DH  N.  Y.  OS.  K 


stamps,    coupons, 


Re  Jacobs,  BS  N.  Y.  08,  60  Am.  Rep.  636; 


tickets,   certmcatee,   or   similar   devices,   in  ^''■t"'  '"  Tennessee,   170  U.  8.  843,  48  L. 

connection   with   their   sales,   of   the   equal  ^-   224.   21   Sup.   Ct   Rep.   182;   Poople  r. 

protection  of  the  law.  «w«.  08  **.  Y.  377,  52  Am.  Rep.  34.  B  N. 

Ex    parte    Hutchinson,    137    Fed.    960;  S.  29;  Powell  v.  PenMylvanU,  127  U.  a 

Montgomery   v.    Kelly,    142    Ala.    558,    70  "8.  32  L.  ed.  263,  8  Sup.  Ct  Sap.  002, 

LJLA.  20B,  110  Am.  St.  Rep.  43,  38  So,  67;  1267;   MeCray  v.  United  Btatea,  106  D.  B. 

Ex  parte  McKennm,  126  Cal.  429,  68  Pac  J7,  49  L.  ed.  78,  24  Sup.  Ct  K^.  7W,  1 

''04  140  V.  8. 


1915. 


PrrNBY  Y.  WASHINGTON. 


38^-390 


Ann.  GMb  601;  Hammond  Packing  Oo.  y. 
Montana,  233  U.  S.  331,  68  L.  ed.  085,  34 
Sap.  Ct.  Rep.  696;  People  y.  Orange  County 
Road  Constr.  Co.  175  N.  Y.  84,  65  L.R.A. 
33,  67  N.  E.  129;  Atkin  v.  Kansas,  191  U. 
S.  207,  48  L.  ed.  148,  24  Sup.  Ct.  Rep.  124 ; 
People  ex  rel.  McPike  v.  Van  De  Carr,  178 
N.  Y.  425,  66  L.R.A.  189,  102  Am.  St.  Rep. 
516,  70  N.  E.  965;  Halter  v.  Nebraska,  205 
U.  S.  34,  51  L.  ed.  696,  27  Sup.4#Ct.  Rep. 
419,  10  Ann.  Cas.  525;  Lemieuz.  v.  Young, 
211  U.  S.  489,  53  L.  ed.  295,  29  Sup.  Ct. 
Rep.  174;  Kidd,  J>,  k  P.  Co.  v.  Musselman 
Qrooer  Oo.  217  U.  8.  461,  54  L.  ed.  839,  30 
Sap.  Ct  Rep.  606;  People  ex  rel.  Tyroler 
Y.  Warden,  157  N.  Y.  116,  43  L.R.A.  264,  68 
Am.  St.  Rep.  763,  51  N.  E.  1006;  Frank 
L.  Fisher  Co.  y.  Woods,  187  N.  Y.  90,  12 
I4JLA.(NJ9.)  707,  79  N.  E.  836;  People  y. 
WiUiama,  189  N.  Y.  131,  121  Am.  St.  Rep. 
854,  81  N.  £.  778,  12  Ann.  Cas.  798;  Mul- 
ler  Y.  Oregon,  208  U.  S.  412,  52  L.  ed.  551, 
28  Sap.  Ct  Rep.  324,  13  Ann.  Cas.  957; 
People  ex  rel.  Duryea  y.  Wilber,  198  N.  Y. 
1,  27  LJt.A.(N.S.)  357,  90  N.  E.  1140,  19 
Ann.  Cat.  626. 

Legislatures  are  ultimate  guardians  of 
the  liberties  and  welfare  of  the  people  in 
quite  as  great  a  degree  as  the  courts. 

Missouri,  K.  ft  T.  R.  Co.  y.  May,  194  U. 
8.  267,  48  L.  ed.  971,  24  Sup.  Ct  Rep.  638. 

Mr.  Blackburn  Bsterline  also  argued 
the  cause  for  defendant  in  error. 

Mr.  Justice  McKenna  dellYered  the  opin- 
ion of  the  court: 

A  companion  case  with  Nos.  41  and  224 
[240  U.  a  342,  369,  ante,  679,  691,  36  Sup. 
Ct  R^.  370,  379].  It  was  argued  and  sub- 
mitted with  those  cases  and  involves  the 
same  general  questions  and  the  validity  of 
the  statute  passed  upon  in  No.  224. 

A  criminal  information  was  filed  in  the 
superior  court  of  the  state  of  Washington 
for  the  county  of  King,  charging  that  the 
United  Cigar  Stores  Company,  Inc.,  a  New 
Jersey  corporation,  doing  business  in  the 
etate  of  Washington,  owned  and  conducted 
a  certain  store  and  place  of  business  in  the 
eity  of  Seattle,  and  had  not  then  or  there- 
tofore obtained  a  separate  license  from  the 
auditor  of  the  county  entitling  it  at  its 
store  and  place  of  business  to  use  or  fur- 
nish to  other  persons,  etc.,  to  use,  in,  with, 
or  for  the  sale  of  any  goods,  etc.,  any 
stamps,  etc,  or  other  similar  devices,  en- 
titling the  purchaser  receiving  the  same  to 
procure  from  any  person,  etc.,  any  goods, 
etc,  free  of  charge  or  for  less  than  the  re- 
tail price  thereof  upon  the  production  ol 
any  number  of  said  stamps,  etc 


That  Pitney  (plaintiff  in  error),  at  said 
place  of  business,  [380]  well  knowing  the 
above  facts,  did  then  and  there  unlawfully, 
as  the  manager,  servant,  and  agent  of  the 
United  Cigar  Stores  Company,  Inc.,  use  and 
furnish  in,  with,  and  in  connection  with  the 
sale  of  certain  goods,  etc,  to  (me  John  Gar- 
vin a  certain  stamp,  etc,  of  the  following 
tenor: 

No.  139,198.      Dr. 
United  Cigar  Stores  Company  (Incorpo- 
rated). 
Certificate. 
Cash  value  at  any  Profit-Sharing  Station 
in  the  state  of   Washington,   1   cent,   but 
average    merchandise    value,   according  to 
profit-sharing  list,  2  cents. 

This  certificate  represents  a  25-cent  pur- 
chase, and  is  redeemaiile  according  to  the 
conditions  of  our  profit-sharing  list.  Ask 
for  a  copy  of  list  Redeemable  only  by  the 
person  to  whom  originally  issued. 

United  Cigar  Stores  Company  (Incorpo- 
rated). 
Largest  Cigar  Retailers  in  the  world. 

And  it  was  alleged  that  Garvin  received 
the  same. 

A  demurrer  was  filed  to  the  information, 
the  grounds  of  which  were,  as  alleged,  that 
the  defendant  had  not  violated  any  law,  that 
the  information  failed  to  state  facts  suf- 
ficient to  constitute  a  crime  or  misdemeanor, 
and  that  it  did  not  charge  any  offense 
against  the  laws  of  Washington.  The  de- 
murrer was  sustained  and  the  case  dis- 
missed. This  action  was  reversed  by  the 
supreme  court  of  the  State  and  the  cause  re- 
manded with  directions  to  overrule  the  de- 
murrer.   79  Wash.  608,  140  Pac.  918. 

Upon  the  return  of  the  case  to  the  su- 
perior court  the  demurrer  was  overruled  and 
defendant  pleaded  guilty.  He  then  moved 
in  arrest  of  judgment,  invoking  against  the 
law  and  sentence  under  it  articles  5  and  8 
of  the  Constitution  of  the  United  States  and 
§  1  of  the  14th  Amendment  of  that  Consti- 
tution. 

It  was  stipulated  that  Pitney,  as  charged, 
furnished  (Marvin  a  certain  stamp,  etc., 
which  entitled  Garvin  to  procure  from  the 
United  Cigar  Stores  Co.,  Inc.,  upon  the 
[390]  production  of  a  certain  specified 
number  of  such  stamps,  etc,  or  other  sim- 
ilar device,  certain  goods,  etc,  free  of 
charge;  that  the  stamp,  etc.,  so  delivered 
to  Garvin,  was  redeemable  by  the  company 
alone,  and  entitled  him  to  receive  frcHu  the 
company,  and  from  no  other,  such  goods, 
etc;  that  the  stamp,  etc,  was  by  its  terms 
redeemable  in  goods,  etc,  or  1  cent  in  cash. 


46  Ii.  ed. 


46 


8(K),  801 


SUPRBMB  COURT  OF  THE  UNITED  STATES. 


OOT.  Tbrm^ 


at  the  option  of  the  holder,  a8  provided  by 
the  laws  of  the  state  of  Washington.! 

Judgment  of  a  fine  of  $10  and  costs  was 
pronounced  against  him,  which  was  affirmed 
by  the  supreme  oourt  for  the  reasons  an- 
nounced in- its  former  opinion.  The  case  was 
then  brought  here  by  writ  of  error  allowed 
by  the  chief  justice  of  the  state. 

The  eourt  overruled  Leonard  v.  Bassin- 
dale,  46  Wash.  301,  80  Pac.  870,  in  which 
case  it  had  decided  that  the  law,  passed  in 
1005,  prohibiting  the  use  of  trading  stamps, 
was  unconstitutional,  giving  as  reason  that 
the  police  power  of  the  state,  as  expounded 
and  illustrated  by  the  decisions  of  this 
court,  was  legally  exercised  in  the  passage 
of  the  statute. 

The  reasons  and  conclusion  of  the  court 
are  combated  [301]  by  plaintiff  in  error  by 
the  same  considerations  and  arguments  that 
were  advanced  in  Nos.  41  and  224.  What  we 
said  in  answer  to  them  there  we  need  not 
repeat  here,  and  upon  the  authority  of  those 
cases  the  judgment  of  the  Supreme  Court 
must  be,  and  it  is,  affirmed. 


GEORGE  8.  BADDERS,  Plff.  in  Err., 

V. 

UNITED  STATES.. 

(See  8.  0.  Reporter's  ed.  301-305.) 

Postofllce  ^  power  of  Congress  —  of- 
fenses ~  furthering  scheme  to  de- 
frand. 

1.  The  placing  of  letters  in  the  mail 

iThe  law  of  Washington,  passed  in  1007 
(Laws  1007,  p.  742),  provided: 

(§  1 )  That  no  stamps,  etc.,  or  other  sim- 
ilar device  which  should  entitle  the  holder 
thereof  to  receive  from  the  vendor  or  indi* 
rectly  through  anv  other  person,  money  or 
goods,  etc.,  should  be  sold  or  issued  unless 
each  of  the  stamps,  etc.,  should  have  legibly 
printed  or  written  upon  the  face  thereof  the 
redeemable  value  thereof  in  cents. 

(§2)  That  such  stamps,  etc.,  should  be 
redeemable  in  goods,  etc.,  "or  in  cash,  good 
and  lawful  money  of  the.  United  States,  at 
the  option  of  the  holder  thereof,"  and  any 
number  of  such  stamps,  etc.,  should  be  re- 
deemed at  the  value  thereof  in  cents  print- 
ed on  the  face  thereof,  and  it  should  not 
bo  necessary  for  the  holder  thereof  to  have 
any  stipulated  number  of  the  same. 

(§  3)  That  in  case  of  refusal  to  redeem 
the  stamps,  etc.,  the  vendor  or  such  other 
person  should  be  liable  to  the  holder  thereof 
for  the  face  value  thereof. 

(§4)  Violation  of  the  act  is  made  a  mis- 
demeanor. 


NoiB.— On   emel   and   unusual    punish- 
ment^-aee  notes  to  State  ex  reL  Garvey  v. 
Whitaker,  85  L.RJL  561,  and  Franklin  t. 
Brown,  LJLAa015C,  557. 
706 


for  the  purpose  of  exeeoting  a  seheme  to  de- 
fraud could  be  made  a  criminal  offense  by 
Congress,  as  was  done  by  the  provision  of 
the  Criminal  Code,  §  215,  although  the 
fraudulent  scheme  itself  may  be  outside  the 
jurisdicti(m  of  Congress. 

[For  other  ^ims,  see  Postofflos,  VI..  in  Di- 
gest Sop.  Ct  1008.1 

Criminal  law  ^  omel  and  itniiaiial  pun* 
iahment  —  separate  offenses. 

2.  Making  the  deposit  of  each  letter 
placed  in  the  mails  for  the  purpose  of  exe- 
cuting a  seheme  to  defraud  a  separate  of- 
fense punishable  by  fine  and  imprisonment,. 
as  is  done  by  the  United  States  Criminal 
Code,  §  215,  does  not  render  the  statute 
unconstitutional  as  imposing  cruel  and  un- 
usual punishment  and  excessive  fines. 
[For  other. cases,  see  Criminal  Law,  V.  b.  in 

Digest  Sup.  Ct.  1008.1 

Grand  jury  —  absence  of  judge  fron» 
district  —  validity  of  indictment. 

3.  The  absence  of  the  judge  from  the 
Federal  district  during  a  part  of  the  delib- 
erations of  the  grand  jury  does  not  invali- 
date the  indictment. 

(Matters  as  to  grand  jury,  sse  Grand  Jury, 
In  Digest  Sup.  CL  1008.1 

[No.  521.] 

Argued  February  23  and  24,  1016.    Decided 

March  6,  1016. 

IN  ERROR  to  the  District  Court  of  the 
United  SUtes  for  the  District  of  Kan- 
sas to  review  a  conviction  for  placing  let- 
ters in  the  mail  for  the  purpose  of  executing 
a  scheme  to  defraud.    Affirmed. 
The  facts  are  stated  in  the  opinion. 

Mr.  James  H.  Harklesa  argued  the 
cause,  and,  with  Messrs.  D.  R.  Hite  and 
Clifford  Histed,  filed  a  brief  for  plaintiff  in 
error: 

Section  215  of  the  Criminal  Code  as  ap- 
plied to  the  facts  set  up  in  the  indictment 
in  this  case  is  not  within  the  grant  to 
Congress  of  power  to  establish  postofficea 
and  post  roads,  and  to  nmke  all  laws  which 
shall  be  necessary  and  proper  for  carrying 
into  execution  such  power. 

Lottery  Case  (Champion  v.  Ames)  180 
U.  S.  321,  374,  375,  47  L.  ed.  402,  508,  2S 
Sup.  Ct.  Rep.  821,  13  Am.  Crim.  Rep.  321; 
Slaughter-House  Cases,  16  Wall.  36,  21  L^ 
ed.  304. 

Interpreted  so  as  to  make  each  letter 
placed  in  the  mails  for  the  purpose  of  exe- 
cuting a  scheme  or  artifice,  as  alleged  in 
the  indictment  herein,  a  separate  offense^ 
the  section  is  repugnant  to  the  constitu- 
tional provision  that  "excessive  bail  shall 
not  be  required,  nor  excessive  fines  imposed, 
nor  cruel  and  unusual  punishmenta  in- 
flicted." 

CWeil  v.  Vermont,  144  U.  S.  337,  341,  86 
L.  ed.  457,  458,  12  Sup.  Ot  Rep.  603. 

Where  tha  accused  is  held  under  a  Fed- 

940  V.  8» 


1015. 


BADDBBS  T.  UKITBD  8TATB& 


end  indietmcnt  wMeh  does  not  eubetan- 
tially  state  an  offense  against  the  laws  of 
the  United  SUtes,  he  is  deprived  of  his 
eonstitutional  right  to  be  informed  of  the 
eharge  against  him. 

Stewart  ▼.  United  SUtes,  66  C.  a  A.  041, 
110  Fed.  80;  United  SUtes  y.  Cruikshaid:, 
02  U.  8.  642,  23  L.  ed.  688. 

The  statement  of  facts  in  that  part  of 
the  indictment  attempting  to  charge  a 
scheme  or  artifice  is  insufficient. 

Miller  y.  United  SUtes,  60  C.  C.  A.  300, 
133  Fed.  337;  United  States  v.  Hess,  124 
U.  S.  483,  31  L.  ed.  616,  8  Sup.  Ct.  Rep. 
671;  United  States  y.  Cruikshank,  supra; 
United  States  y.  Simmons,  00  U.  S.  300,  24 
L.  ed.  810;  United  SUtes  y.  Carll,  106  U.  S. 
Oil,  20  L.  ed.  1135,  4  Am.  Crim.  Rep.  240; 
Naftiger  y.  United  SUtes,  200  Fed.  602; 
Miller  y.  United  SUtes,  60  C.  C.  A.  300,  133 
Fed.  341 ;  Martin  y.  United  SUtes,  03  0.  C. 
A.  484, 108  Fed.  206 ;  United  SUtes  y.  Wat- 
kins,  3  Cranch,  C.  C.  441,  Fed.  Cas.  No.  10,- 
049;  United  SUtes  y.  Post,  113  Fed.  864; 
People  y.  Flack,  126  N.  Y.  326,  11  L.RJ^. 
807,  20  N.  E.  207 ;  People  y.  Baker,  00  N.  Y. 
344;  PotUr  y.  United  SUtes,  166  U.  S.  438, 
30  L.  ed.  214,  16  Sup.  Ct.  Rep.  144;  Rudd 
y.  United  SUtes,  07  C.  C.  A.  402,  173  Fed. 
012;  Whart  Crim.  £y.  10th  ed.  pp.  001, 
006,  1086,  1008,  1771. 

The  indictment  is  f aUlly  defectiye  in  that 
it  does  not  sUU  facto  showing  that  the  de- 
fendant deyised  any  scheme  or  artifice. 

Etheredge  y.  United  SUtes,  108  C.  C.  A. 
366,  180  Fed.  434;  United  SUtes  y.  Britton, 
108  U.  8.  100,  27  L.  ed.  008,  2  Sup.  Ct.  Rep. 
681 ;  Stewart  y.  United  SUtes,  supra. 

The  indictment  Ib  faUIIy  defectiye  be- 
cause it  does  not  charge  an  inUnt  on  the 
part  of  the  defendant  to  use  the  postoffice 
establishment  as  a  means  to  effect  the  al- 
leged scheme  or  artifice. 

Pettibone  y.  United  SUtes,  148  U.  S.  107, 
203,  37  L.  ed.  410,  422,  13  Sup.  Ot  Rep. 
642. 

Plaintiff  in  error  is  held  to  answer  for 
an  infamous  crime  without  an  indictment 
of  a  grand  jury,  found  and  presented  as  re- 
quired bj  law. 

People  y.  Rotolo,  01  Misc.  670,  116  N.  Y. 
Supp.  864;  Renigar  y.  United  SUtes,  20 
L.RJl.(NJ3.)  083,  07  C.  C.  A.  172,  172  Fed. 
064,  10  Ann.  Cas.  1117;  SUU  y.  Cox,  28 
K.  C.  (0  Ired.  L.)  446. 

The  defendant  was  not  arraigned  as  re- 
quired by  law. 

Cndn  y.  United  SUtes,  102  U.  8.  026,  40 
L.  ed.  1007,  10  Sup.  Ct.  Rep.  062;  SUU  y.j 
Ghenier,  32  La.  Ann.  103;  1  Bishop,  CrinL. 
Proc  §  733.  • 

•0  Ii.  ed. 


Assistant  Attorney  General  Wallmoe  ar- 
gued  the  cause  and  filed  a  brief  for  defend- 
ant in  error: 

The  indictment  is  sufficient  in  law. 

United  SUtes  y.  Young,  232  U.  S.  166, 
101,  68  L.  ed.  648,  661,  34  Sup.  Ct  Rep. 
303;  United  SUtes  y.  Steyer,  222  U.  S.  107, 
60  L.  ed.  146,  32  Sup.  Ct.  Rep.  61 ;  Brooks 
y.  United  SUtes,  70  0.  C.  A.  681,  146  Fed. 
227;  United  SUtes  y.  Young,  216  Fed.  207; 
United  SUtes  y.  Wootten,  20  Fed.  702; 
United  SUtes  y.  Watson,  36  Fed.  368;  Bett- 
man  y.  United  SUtes,  140  C.  C.  A.  206,  224 
Fed.  826,  denied  in  230  U.  S.  042,  anU,  482, 
30  Sup.  Ct  Rep.  103. 

The  indictment  is  not  duplicitous. 

United  SUtes  y.  Ridgway,  100  Fed.  280; 
Gardes  y.  United  SUUs,  30  C.  C.  A.  600, 
68  U.  S.  App.  210,  87  Fed.  176;  Emanuel  y. 
United  SUtes,  110  C.  C.  A.  137,  100  Fed. 
320. 

Where  an  indictment  has  been  regularly 
returned  in  open  court,  the  presumption,  in 
the  absence  of  a  contrary  showing,  is  that 
the  grand  Jury,  the  sereral  court  officials, 
and  the  court  all  properly  discharged  their 
respective  duties. 

Carlisle  y.  United  SUtes,  114  C.  C.  A. 
631,  104  Fed.  827. 

While  it  appears  that  the  grand  jury  was 
not  poUed  when  the  indictment  was  re- 
turned, this  defect  cannot  be  said  to  haye 
worked  any  substantial  injury  to  the  de- 
fendant, and  is  cured  by  the  provisions  of 
U.  S.  Rev.  SUt  §  1026,  Comp.  SUt  1013, 
!  1601. 

Breese  v.  United  SUtes,  220  U.  S.  1,  11, 
67  L.  ed.  01,  102,  33  Sup.  Ot.  Rep.  1. 

The  judge's  absence  during  the  delibera- 
tions of  the  grand  jury  is  not  prejudicial. 

Jones  y.  United  SUtes,  80  C.  C.  A.  303, 
102  Fed.  421,  denied  in  212  U.  S.  670,  53 
L.  ed.  057,  20  Sup.  Ct.  Rep.  085;  Com.  v. 
Bannon,  07  Mass.  220;  Nealon  y.  People,  39 
ni.  App.  483;  People  ex  rel.  Pickard  v. 
ChauUuqua,  11  N.  Y.  Civ.  Proc.  Rep.  184. 

Criminal  prosecutions  in  the  Federal 
courts  are  governed  by  Federal,  and  not  by 
sUte,  sUtutes. 

United  SUtes  y.  Reid,  12  How.  361,  306, 
13  L.  ed.  1023,  1026;  Bucher  v.  Chesire  R. 
Co.  126  U.  S.  666,  682,  31  L.  ed.  706,  708, 
8  Sup.  Ct.  Rep.  074;  Jones  v.  United  SUtes, 
80  C.  0.  A.  303,  102  Fed.  417,  and  cases 
cited. 

The  record  shows  that  defendant  waa 
properly  arraigned. 

Garland  v.  Washington,  232  U.  S.  042,. 
047,  68  L.  ed.  772,  776,  34  Sup.  Ct  Rep. 
460;  SUte  y.  O'Kelley,  268  Mo.  346,  62 
L.R.A.(N.8.)  1003,  107  S.  W.  080. 

Denial  of  an  application  for  a  bill  of  par- 
ticulars, a  motion  to  postpone,  or  a  motion 
for  a  continuanoe,  is  not  subject  to  review 


193,894 


8UPREMB  COUBT  OF  THE  UNITED  STATES 


Oct.  Tknc, 


«iile«  there  has  been  a  flagrant  abuae  of 
diflcretion.    No  such  ahnae  ia  shown. 

Donlop  ▼.  United  SUtea,  165  U.  8.  486, 
491,  41  L.  ed.  799,  800,  17  Sup.  Ct.  Rep. 
876;  Hardy  v.  United  States,  186  U.  S.  224, 
46  L.  ed.  1137,  22  Sup.  Ct  Rep.  889;  Isaaca 
▼.  United  SUtes,  159  U.  S.  487,  489,  40  L. 
ad.  229,  230;  16  Sup.  Ct.  Rep.  51. 

The  allied  constitutional  questions  have 
■o  merit. 

Barrett  t.  United  States,  169  U.  S.  218, 
tt  L.  ed.  723,  18  Siip.  Ct  Rep.  327 ;  United 
SUtes  v.  Toung,  232  U.  S.  155,  58  L.  ed. 
548,  34  Sup.  Ct  Rep.  303;  Durland  t. 
United  SUtes,  161  U.  S.  306,  40  L.  ed.  709, 
16  Sup.  Ot  Rep.  508;  Re  De  Bara,  179  U.  8. 
816,  45  L.  ed.  207,  21  Sup.  Ct  Rep.  110; 
Streep  v.  United  SUtes,  160  U.  S.  128,  40 
Lu  ed.  365,  16  Sup.  Ct.  Rep.  244 ;  Stokes  v. 
United  SUtes,  157  U.  S.  187,  39  L.  ed.  667, 
15  Sup.  Ct  Rep.  617;  Re  Henry,  123  U.  S. 
872,  31  L.  ed.  174,  8  Sup.  Ct.  Rep.  142; 
United  SUtes  ▼.  Hess,  124  U.  S.  483,  31  L. 
ed.  516,  8  Sup.  Ct  Rep.  571;  Homer  t. 
United  SUtes,  143  U.  S.  207,  213,  36  L.  ed. 
126,  129,  12  Sup.  Ct.  Rep.  407;  Re  Rapier, 
143  U.  S.  110,  133,  36  L.  ed.  93, 102,  12  Sup. 
Ot  Rep.  374 ;  Ebeling  v.  Morgan,  237  U.  S. 
625,  631,  50  L.  ed.  1151,  1153,  35  Sup.  Ct 
Rep.  710;  Carter  v.  McClaughry,  183  U.  S. 
365,  394,  46  L.  ed.  236,  250,  22  Sup.  Ct.  Rep. 
181. 

Solicitor  General  Davis  also  filed  a  brief 
for  defendant  in  error: 

The  power  vested  in  Congress  to  esUb- 
liah  postoffices  and  post  roads  authorises 
all  measures  necessary  to  secure  the  safe 
and  speedy  transmission  of  the  mails  and 
a  prompt  delivery  of  their  oontenU,  as  well 
as  the  power  to  prescribe  what  should  be 
carried  and  what  should  be  excluded. 

Ex  parte  Jackson,  06  U.  S.  727,  24  L.  ed. 
877;  Re  Rapier,  143  U.  S.  110, 134,  36  L.  ed. 
98,  102,  12  Sup.  Ot.  Rep.  374;  Public  Clear- 
ing House  V.  Coyne,  104  U.  S.  497,  506,  48 
Lu  ed.  1092,  1097,  24  Sup.  a.  Rep.  789; 
Burton  v.  United  States,  202  U.  S.  344, 
871,  50  L.  ed.  1057,  1067,  20  Sup.  Ct.  Rep. 
688,  6  Ann.  Cas.  362.  See  also  United  States 
T.  Loring,  91  Fed.  881,  882;  Lottery  Case 
(Champion  v.  Ames)  188  U.  S.  321,  47  L. 
ad.  492,  23  Sup.  Ct.  Rep.  321,  13  Am.  Crim. 
Bep.  561. 

llie  punishment  denounced  by  §  215  is 
neither  cruel  nor  unusual. 

Be  Henry,  123  U.  S.  872,  374,  31  L.  ed. 
174,  175,  8  Sup.  Ct.  Rep.  142 ;  Re  De  Bara, 
179  U.  S.  316,  322,  45  L.  ed.  207,  210,  21 
Sup.  Ot.  Rep.  110;  Durland  v.  United. 
SUtes,  161  U.  S.  306,  315,  40  L.  ed.  709,' 
712,  16  Sup.  Ct.  Rep.  508;  Howard  v.  Flem- 
ing, 191  U.  S.  126,  137,  48  L.  ed.  121,  125, 


24    Sup.    Ot.   Rep.   49;    Hanley   v.   United 
168 


SUtes,  62  C.  0.  A.  561,  127  V^L  930;  Fran- 
cis V.  United  SUtes,  81  0.  C.  A.  407,  152 
Fed.  155;  Han  v.  United  States,  81  0.  0. 
A.  562,  152  Fed.  420;  United  SUtes  v.  Mc- 
Vickar,  164  Fed.  894;  Rinker  v.  United 
SUtes,  81  CCA.  379,  151  Fed.  755 ;  Jack- 
son V.  United  SUtes,  42  0.  C  A.  452,  102 
Fed.  487. 

Section  215  doea  not  deprive  the  accused 
of  his  liberty  without  due  process  of  law. 

Missouri  Drug  Co.  T.  Wyman,  129  Fed. 
623;  Re  Rapier,  143  U.  S.  110,  134,  36  L.. 
ed.  93,  102,  12  Sup.  Ot  Rep.  374. 

Mr.  Justice  Holmes  delivered  the  opin- 
ion of  the  court: 

The  case  is  brought  to  this  court  from 
the  district  court  under  §  238  of  the  Judi- 
cial Code,  act  of  March  3,  1011,  chap.  231, 
36  SUt  at  L.  1087,  Comp.  SUt  1913,  § 
1215,  on  the  ground  that  it  involves  the 
construction  and  application  of  the  Consti- 
tution of  the  United  SUtes.  The  plaintiff 
in  error  was  indicted  for  placing  letters  in 
the  mail  for  the  purpose  of  executing  a 
scheme  to  defraud  devised  by  him,  in  viola- 
tion of  §  215  of  the  Criminal  Code,  act  of 
March  4,  1909,  chap.  321,  35  SUt  at  L. 
1088,  Comp.  SUt.  1913,  |  10,385.  There 
were  twelve  oounU,  on  seven  of  which,  each 
relating  to  a  different  letter,  he  was  found 
guilty.  He  was  sentenced  to  five  year's  im- 
prisonment on  each  count,  the  periods  be- 
ing concurrent,  not  cumulative,  and  also  to 
a  fine  of  $1,000  on  each  or  $7,000  in  all. 
The  grounds  for  coming  to  this  court  are, 
first,  that  §  215  of  the  Criminal  Code  is  be- 
yond the  power  of  Congress,  aa  applied  to 
what  may  be  a  mere  incident  of  a  fraudulent 
scheme  that  itself  is  ouUide  the  jurisdic- 
tion of  Congress  to  deal  with;  and  second, 
that  if  it  makes  the  deposit  of  each  letter 
a  separate  offense,  subject  to  such  punish- 
ment as  it  received  in  this  case,  it  imposes 
cruel  and  unusual  punishment  and  exces- 
sive fines. 

These  contentions  need  no  extended  an- 
swer. The  overt  act  of  putting  a  letter  in- 
to the  postoffice  of  the  United  Statea  is  a 
matter  that  Congress  may  regulate.  Bx 
parte  Jackson,  96  U.  S.  727,  24  L.  ed.  877. 
Whatever  the  limite  to  the  power,  it  may 
forbid  any  such  acU  done  in  furtherance 
of  a  scheme  that  it  regards  aa  contrary  to 
public  policy,  whether  it  can  forbid  the 
scheme  or  not  Re  Rapier,  143  [894]  U.  8. 
110,  134,  36  L.  ed.  93,  102,  12  Sup.  Ot  Repi 
374;  Public  Clearing  House  v.  Coyne,  194 
U.  S.  497,  507,  48  L.  ed.  1092,  24  Sup.  Ct. 
Rep.  789;  United  SUtes  v.  Stever,  222 
U.  S.  167,  173,  56  L.  ed.  145,  147,  32  Sup. 
Ct.  Rep.  51.  See  Lottery  Case  (Champion 
V.  Ames)  188  U.  S.  321,  357,  47  L.  ed.  492, 
501,  23  Sup.  Ct.  Rep.  321,  18  Am.  Crim. 

140  U.  8. 


L 


1916. 


ILLINOIS  C.  R.  00.  ▼.  MJCSSINA. 


394, 


Rep.  561;  United  SUtee  t.  Holte,  236  U. 
8.  140,  144,  59  L.  ed.  504,  505,  L.RJL.1915D, 
281,  35  Sup.  Ot.  Rep.  271.  Intent  may  make 
an  otherwise  innocent  act  criminal,  if  it  is 
a  Ktep  in  a  plot.  Aikens  ▼.  Wisconsin,  195 
U.  S.  194,  206,  49  L  ed.  154,  160,  25  Sup. 
Ot.  Rep.  S ;  Swift  &  Oo.  v.  United  States.  196 
U.  S.  375,  396,  49  L.  ed.  518,  524,  25  Sup. 
Ot.  Rep.  276.  The  acts  alleged  have  been 
found  to  have  been  done  for  the  purpose  of 
executing  the  scheme,  and  there  would  be  no 
ground  for  contending,  if  it  were  argued, 
that  they  were  too  remotely  connected  with 
the  scheme  for  the  law  to  deal  with  them. 
The  whole  matter  is  disposed  of  by  United 
States  ▼.  Young,  232  U.  S.  155,  161,  58  L 
ed.  548,  551,  34  Sup.  Ot.  Rep.  303.  As  tp  the 
other  point,  there  is  no  doubt  that  the  law 
may  make  each  putting  of  a  letter  into 
the  postoffice  a  separate  offense.  Ebeling 
¥.  Morgan,  237  U.  S.  625,  59  L  ed.  1151, 
35  Sup.  Ot.  Rep.  710;  Re  Henry,  123  U. 
S.  372,  374,  31  L.  ed.  174,  175,  8  Sup.  Ot. 
Rep.  142.  And  there  is  no  ground  for  de- 
claring the  punishment  unconstitutional. 
Howard  ▼.  Fleming,  191  U.  S.  126,  185,  48 
L.  ed.  121,  124,  24  Sup.  Ot.  Rep.  49;  Ebel- 
ing T.  Morgan,  supra. 

The  other  matters  discussed  are  before 
us  only  as  incident  to  the  constitutional 
questions  upon  which  the  case  was  brought 
here.  As  those  questions  merely  attempt 
to  reopen  well  established  and  familiar  law, 
it  is  not  necessary  to  go  beyond  them.  Brdl- 
an  T.  United  SUtes,  236  U.  S.  216,  222,  69 
L.  ed.  544,  649,  35  Sup.  Ot.  Rep.  285.  There 
is  the  more  reason  for  declining  further 
consideration  in  the  extravagant  and  un- 
necessary multiplication  of  exceptions  and 
assignments  of  error  that  often  has  been 
condemned  by  this  court.  Oentral  Vermont 
R.  Oo.  V.  White,  238  U.  6.  507,  509,  59  L. 
ed.  1433,  1435,  35  Sup.  Ot  Rep.  865,  9  N. 
0.  0.  A.  265.  If  there  were  anything  in  the 
objections  to  the  indictment,  they  are  not 
of  a  kind  to  involve  constitutional  rights 
(Lamar  ▼.  United  States,  240  U.  S.  60, 
ante,  526,  36  Sup.  Ot  Rep.  255),  although 
the  argument  attempts  to  give  a  constitu- 
tional turn  to  them  and  to  other  technical 
eomplaints,  such  as  that  the  judge  was  ab- 
sent during  a  part  of  the  deliberations  of 
the  grand  jury.  We  find  no  error  in  this 
or  the  other  particulars  mentioned  in  argu- 
ment. [395]  Jones  t.  United  States,  89  0. 
0.  A.  303,  162  Fed.  417,  421,  B.  c.  212  U.  S. 
576,  53  L.  ed.  657,  29  Sup.  Ot  Rep.  685; 
OouL  T.  Bannon,  97  Mass.  214,  220.  See 
Breese  y.  United  SUtes,  226  U.  S.  1,  11,  67 
L  ed.  97,  102,  33  Sup.  Ot.  Rep.  1.  As  to 
the  arraignment,  see  Garland  v.  Washing- 
ton, 232  U.  S.  642,  646,  647,  58  L  ed.  772, 
•0  L.  ed. 


775,  776,  34  Sup.  Ot.  Rep.  456.    We  deem  ik 
unnecessary  to  go  into  further  detaiL 
Judgment  affirmed. 


ILLINOIS  OENTRAL  RAILROAD  OOM- 
PANY,  Yazoo  k  Mississippi  Valley  lUU- 
road  Oompany,  and  J.  B.  Boothe  et  tA^ 
Their  Sureties,  Plffs.  in  Err., 

V. 

V.  P.  MESSINA. 

(See  S.  0.  Reporter's  ed.  395-398.) 

Carriers  ~  free  transportation  —  riding 
with  employee's  consent. 

Ridinff  upon  the  tender  of  an  inter- 
state train  by  permission  of  the  engineer 
without  payment  of  fare  is  made  unlawful 
by  the  act  of  February  4,  1887  (24  SUt 
at  L.  379,  chap.  104),  §  1,  as  amended  by 
the  act  of  June  29,  1906  (34  SUt  at  L.  684, 
chap.  3591,  Oomp.  Stat  1913,  §  8563),  ua- 
der  which  any  common  carrier  violating  the 
provisions  of  that  statute  against  free  trans* 
portation  is  guilty  of  a  misdemeanor  and 
subject  to  a  penalty,  and  any  person, 
other  than  those  excepted,  who  uses  such 
interstate  free  transportation,  is  made  sid»- 
ject  to  a  like  penalty. 

[For  other  cases,  see  Carriers,  III.  e,  in  IM* 
gest  Sup.  Ct  1908.] 

[No.  535.] 

Argued  February  23,  1916.    Decided  Marek 

6,  1916. 

IN  ERROR  to  the  Supreme  (3ourt  of  the 
State  of  Mississippi  to  review  a  jii4f- 
ment  which  affirmed  a  judgment  of  the  Oir- 
cuit  Oourt  of  Holmes  Oounty,  in  that  stats^ 
in  favor  of  plaintiff  in  a  personal-injury 
action.    Reversed. 

See  same  case  below,  —  Miss.  — ,  67  So. 
963. 
The  facts  are  stated  in  the  opinion. 

Mr.  R.  V.  Fletcher  argued  the  causs^ 
and,  with  Messrs.  Blewett  Lee  and  Edward 
Mayes,  filed  a  brief  for  plaintiffs  in  error: 

Messina  was,  at  the  time  of  the  injury, 
violating  a  Federal  law. 

Gloucester  Ferry  Oo.  v.  Pennsylvania,  114 
U.  S.  196,  29  L.  ed.  158,  1  Inters.  Oom.  Rep. 
382,  5  Sup.  Ot.  Rep.  826;  Spencer  v.  Obi- 
cago,  M.  k  St  P.  R.  Oo.  161  Wis.  474,  164 
N  W.  979 ;  Chicago,  I.  A  L.  R.  Oo.  v.  United 
States,  219  U.  S.  486,  55  L.  ed.  305,  81  Sup. 
Ot  Rep.  272;  Louisville  A  N.  R.  Oo.  ▼.  Moi- 
tley,  219  U.  S.  467,  55  L.  ed.  297,  34  LRA. 
(N.S.)   671,  31  Sup.  Ot.  Rep.  265. 

Note. — On  liability  of  railway  oomjMUij 
for  injury  to  person  wrongfully  on  tram  by 
collusion  with  a  train  employee — see  note 
to  St  Louis,  I.  M.  ft  S.  R.  Oo.  v.  JoneSy  87 
L.R.A.(N.S.)  418. 


8UPREMB  COURT  OF  THE  UNITED  8TATE& 


Ooi.  Tjbm; 


There  are  verj  many  respectable  authori- 
ties in  the  United  States  and  E^land  hold- 
ing, just  as  the  Mississippi  court  has  held 
in  the  McLaurin  Case,  that  no  one  can  re- 
cover from  a  tort  feasor,  however  great  the 
negligence,  provided  the  plaintiff,  m  proving 
his  case,  must  establish  his  own  unlawful 
act. 

Western  U.  Teleg.  Co.  v.  McLaurin,  — 
Miss.  — ,  L.R.A.1916C,  487,  66  So.  739;  1 
Cooley,  Torts,  p.  172;  Pullman's  Palace  Oar 
Co.  V.  Central  Transp.  Co.  171  U.  S.  138,  43 
L.  ed.  108,  18  Sup.  Ct  Rep.  808;  McGrath 
T.  Merwin,  112  Mass.  467,  17  Am.  Rep.  119; 
Gulf,  C.  A  S.  F.  R.  Co.  V.  Johnson,  71  Tex. 
ei9,  1  L.R.A.  730,  9  S.  W.  602;  Phalen  v. 
Clark,  19  Conn.  421,  60  Am.  Dee.  253;  Bos- 
worth  T.  Swansey,  10  Met.  363,  43  Am.  Dee. 
441;  James  v.  Wellston  Twp.  13  L.RJL 
(NJ3.)  1271,  note. 

Mr.  Harry  Peyton  argued  the  cause,  and 
Mr.  William  H.  Watkins  filed  a  brief  for  de- 
fendant in  error: 

Even  though  the  ruling  by  the  Missis- 
sippi supreme  court  as  to  the  applicability 
of  the  Hepburn  act  to  the  facts  of  this  case 
should  be  conceded  to  be  erroneous,  still  this 
Federal  question  Ib  without  merit,  and  the 
case  should  be  affirmed. 

Southern  P.  Co.  v.  Schuyler,  227  U.  S. 
601,  57  L.  ed.  662,  43  L.R.A.(K.S.)  901,  33 
Sup.  Ct.  Rep.  277. 

llie  right  of  action  of  the  defendant  in 
error,  asserted  in  the  court  below,  was  not 
derived  from  any  contract,  and  was  not  de- 
duced from  any  supposed  violation  of  the 
Hepburn  act.  It  arose  from  the  obligation 
created  by  law,  as  construed  by  the  state 
court,  not  to  wilfully  and  wantonly  injure 
him  after  consenting,  and  therefore  having 
knowledge  that  he  was  aboard  the  engine. 

Delaware,  L.  A  W.  R.  Oo.  v.  Trautwein, 
52  N.  J.  L.  169,  7  L.R.A.  435,  19  Am.  St. 
Rep.  442,  19  Atl.  178,  5  Am.  Neg.  Cas.  21 ; 
Carroll  v.  Staten  Island  R.  Co.  58  N.  Y. 
126,  17  Am.  Rep.  221;  Opsahl  v.  Judd,  30 
Minn.  126,  14  N.  W.  575. 

The  violation  of  the  Hepburn  act,  assum- 
ing, for  the  sake  of  argument,  that  the  de- 
fendant in  error  here  was  guilty  of  such 
violation,  was  in  no  sense  the  cause  of  his 
injury,  nor  did  he  have  to  rely  upon  such 
illegal  act  in  order  to  make  out  his  case. 
It  was  only  the  occasion  for  his  injury  by 
the  railroad  company's  wilful,  wanton,  and 
grossly  negligent  act,  as  held  by  the  Mis- 
sissippi supreme  court.  It  was  merely  a 
condition,  and  was  not  a  contributing  cause. 

Delaware,  L.  A  W.  R.  Co.  v.  Trautwein, 
supra;  Jacobus  v.  St.  Paul  A  C.  R.  Co.  20 
Minn.  125,  Oil.  110,  18  Am.  Rep.  360. 

A  carrier,  in  transporting  a  person  in 
riplation  of  constitutional  or  statutory  pro- 
710 


visions,  cannot  rely  upon  the  Tiolatloii  d 
such  provisions  to  evade  the  conaeqaeiioss 
resulting  from  personal  injury  through  tha 
negligence  of  the  carrier. 

Watson,  Damages  for  Personal  Injuries^ 
I  230 ;  Sutton  v.  Wauwatosa,  29  Wis.  21,  9 
Am.  Rep.  534;  John  v.  Nortiiem  P.  B.  Oow 
42  Mont.  18,  32  L.R.A(N.8.)  86,  111  Plae. 
632;  Oabbert  v.  Hackett,  135  WU.  86,  14 
L.ILA.(N.S.)  1070,  116  N.  W.  346;  Brad- 
burn  V.  Whatcom  County  R.  A  Light  Oo. 
45  Wash.  582,  14  L.R.A.(N.S.)  526,  88  Pae. 
1020;  Delaware,  L.  A  W.  R.  Co.  v.  Traut- 
wein, and  Carroll  v.  Staten  Island  R.  Oo. 
supra.  See  also  Conithan  v.  Royal  Ins.  Co. 
91  Miss.  386,  18  LJLA(NJ3.)  214,  124  Am. 
St.  Rep.  701,  45  So.  861,  16  Ann.  Cas.  539| 
Philadelphia  A  R.  R.  Co.  v.  Derby,  14  How. 
470,  14  L.  ed.  502,  10  Am.  Neg.  Cas.  602. 

The  rule  that  where  parties  are  mi  pari 
delicto  the  court  will  lend  its  aid  to  neither 
is  subject  to  the  exception  that  the  rule 
will  not  be  applied  where  paramount  publie 
interest  requires  the  intervention  of  the 
court. 

Rideout  v.  Mars,  99  Biiss.  199,  36  LJLA. 
(N.S.)  485,  54  So.  801,  Ann.  Cas.  1913D, 
770;  Texas  A  P.  R.  Co.  v.  Mugg,  202  U.  8. 
242,  50  L.  ed.  1011,  26  Sup.  Ct.  Rep.  628. 

Mr.  Justice  Holmes  delivered  the  opitt* 
ion  of  the  court: 

This  is  an  action  for  personal  injuries 
suffered  by  the  defendant  in  error  while 
upon  a  train  running  from  Mississippi  to 
Tennessee.  He  had  paid  no  fare,  but  was 
upon  the  tender,  as  he  said,  by  permission 
of  the  engineer.  The  engineer  had  notice 
that  the  water  was  high  between  Beatty  and 
Sawyer  and  over  the  track  at  Sawyer. 
After  passing  Beatty  the  train  was  going 
at  a  rate  variously  put  as  35  to  50  or  00 
miles  an  hour  when  it  ran  into  the  water 
and  was  thrown  from  the  track.  The  plain- 
tiff was  caught  between  the  tender  and  a 
car  and     adly  hurt. 

The  plaintiff  got  a  judgment  for  $10,000, 
which  was  sustained  by  the  supreme  court. 
At  the  trial  the  jury  were  instructed  that 
the  defendant  railroad  was  presumed  to  be 
negligent,  and  that  if  the  evidence  left  it 
doubtful,  it  was  their  duty  to  find  full  dam- 
ages for  the  plaintiff.  The  judge  refused 
to  instruct  them  that  the  engineer  had  no 
authority  to  permit  the  plaintiff  to  ride 
on  the  train  "at  the  place  he  was  in,**  but 
the  request  for  this  instruction  was  based 
upon  the  company^s  rules,  not  upon  the  aet 
to  regulate  commerce.  Tlie  supreme  coart» 
however,  discussed  the  act  of  Congress  and 
held  that  it  did  not  apply  to  the  case. 

By  §  1  of  the  act,  as  amended  by  the  aet 
of  June  29,  1906,  chap.  3591,  84  Stat,  at 
L.  584,  Comp.  SUt  1913,  |  8563,  and  still 

140  U.  S. 


1915. 


CAUSEY  y.  UNITED  6TATE8. 


SM-309 


in  force,  any  eominoii  carrier  violating  the 
provisions  against  free  transportation  is 
guilty  of  a  misdemeanor  and  subject  to  a 
penalty,  and  any  person  other  than  those 
excepted  *'who  uses  any  such  interstate 
.  .  .  free  transportation"  is  made  sub* 
ject  to  a  like  penalty.  No  doubt  the  enact- 
ment had  somewhat  more  formal  [397] 
OSes  especially  in  view,  but  we  see  no  reason 
for  limiting  the  prohibition  to  them.  The 
word  "such"  like  "said"  seems  to  us  to  indi- 
cate no  more  than  that  free  transportation 
had  been  mentioned  before.  We  cannot  think 
that  if  a  prominent  merchant  or  official 
ahould  board  a  train  and  by  assumption  and 
an  air  of  importance  should  obtain  free  car- 
riage, he  would  escape  the  act.  We  are  of 
opinion  therefore  that  the  act  was  construed 
wrongly.  Assuming,  as  it  has  been  aa- 
sumed,  that  the  defendant's  liability  was 
governed  otherwise  by  state  law,  it  seems 
doubtful  under  the  state  decisions  whether 
the  plaintiff  would  have  been  allowed  to 
recover  had  the  court  been  of  opinion  that 
the  act  of  Congress  made  his  presence  on 
the  train  illegal.  Western  U.  Teleg.  Co.  v. 
McLaurin,  —  Miss.  — ,  L.R.A.1916C,  487, 
<M  So.  739.  And  although  there  are  ex- 
pressions in  the  opinion  below  that  raise  a 
doubt,  the  fact  that  the  supreme  court 
thought  it  necessary  to  construe  the  act 
indicates  that  the  construction  was  ma- 
terial to  the  result.  For  this  reason  the 
Judgment  must  be  reversed. 
Judgment  reversed. 

Mr.  Justice  Hnghes,  dissenting: 
The  supreme  court  of  the  state  held  that 
the  provision  of  the  Federal  act  was  not  ap- 
plicable to  this  case,  and  I  think  that  the 
court  was  right.  Congress  did  not  con- 
cern itself  with  the  possibility  that  promi- 
nent persons,  or  others,  might  steal  a  ride 
through  the  unauthorized  action  of  some 
employee  of  the  railroad  company.  Con- 
gress was  concerned  with  the  well-known 
abuse  which  consisted  in  the  giving  of 
passes,  or  free  transportation,  by  railroad 
companies,  and  it  directed  its  legislation  to 
that  abuse.  The  provision  is:  "No  com- 
mon carrier  subject  to  the  provisions  of  this 
act  shall,  .  .  .  directly  or  indirectly, 
issue  or  give  any  interstate  free  ticket,  free 
jass  or  free  transportation  for  passengers," 
except  as  stated;  and  [398]  that  "any 
common  carrier  violating  this  provision 
shall  be  deemed  guilty  of  a  misdemeanor, 
and  for  each  offense,  on  conviction  shall 
pay  ...  a  penalty  .  .  .  and  any 
person,  other  than  the  persons  excepted 
in  this  provision,  who  uses  any  such  in- 
terstate free  ticket,  free  pass,  or  free 
transportation  shall  be  subject  to  a  like 
penalty.''  [84  Stat,  at  L.  684,  chap.* 
•0  li.  ed. 


8591,  Comp.  Stat  1918,  |  8668.]  Here,  it 
was  found  that  the  engineer  had  no  author- 
ity to  give  any  free  transportation  to  the 
plaintiff,  and  I  cannot  but  think  that  in  this 
view  the  defendant  in  error  was  outside  the 
act.  The  supreme  court  of  the  state  saidt 
"The  common  carrier  did  not  issue  any 
free  transportation  to  this  plaintiff,  and 
he  was  not  using  any  such  free  transporta- 
tion. The  engineer  in  charge  of  the  locomo- 
tive pulling  a  passenger  train  under  no  con- 
ceivable circumstances  has  any  power  to 
issue  free  transportation  to  any  person,  and 
we  are  unable  to  see  the  force  of  the  argu- 
ment along  this  line.  ...  It  is  clear  to 
us  that  the  engineer  was  not  authorised  to 
carry  plaintiff  free,  and  it  is  also  manifest 
that  the  act  of  Congress  is  not  directed 
against  acts  of  the  duiracter  here  involved. 
[—  Miss.  — ,  67  So.  966.] 

I  know  of  no  reason  for  disregarding  the 
finding  of  the  state  court  as  to  want  of  au- 
thority in  the  engineer,  and  it  was  on  this 
hypothesis  that  the  court  held  the  Federal 
provision  to  be  inapplicable.  Aside  from 
this  ruling,  it  is  not  suggested  that  any 
Federal'  question  is  involved. 

I  am  authorised  to  say  that  Mr.  Justice 
McKenna  concurs  in  this  dissent. 


[399]    POWHATAN  B.  CAUSEY,  Appt., 

V. 

UNITED  STATE& 
(See  S.  C.  Reporter's  ed.  899-408.) 

Appeal  —  roriew  of  facts  —  concurrent 
findings. 

1.  Concurrent  findings  of  fact  by  the 

master  and  the  two  lower  courts  that  a 

patentee    under    the    homestead    laws    had 

agreed  that  the  title  when  acquired  should 

inure  to  the  benefit  of  another  will  not  be 

disturbed  by  the  Federal  Supreme  Court  on 

appeal  unless  plainly  erroneous. 

(For  other  cases,  see  Appeal  and  Error,  4920- 
4930,  in  Digent  Sup.  Ct.  1908.] 

Public  lands  —  homestead  —  acquiring 
title  for  another  —  commutation. 

2.  An  agreement  by  a  homestead  entry- 
man  that  the  title  when  acquired  shall  inure 
to  the  benefit  of  another  disqualifies  him 
from  securing  title  under  the  commutation 
provision  of  the  homestead  laws  by  sub- 
stituting the  minimum  price  of  the  land  for 
a  part  of  the  required  five  years  of  resi- 
dence and  cultivation. 

(For  other  cases,  see  Public  Lands,  855-861. 
In  Digest  Sap.  Ct.  1908.] 

Appeal  —  presumptions  —  sanction  of 
Attorney  General. 

3.  The  sanction  of  the  Attorney  Gen- 
eral to  a  suit  purporting  to  be  brought  in 
the  name  and  for  the  benefit  of  the  United 
States  by  a  bill  bearing  the  signature  of 
the  assistant  United  States  aUomey  for 


Sm^lEME  OOUKT  OF  THE  UNITED  STATES. 

«ri  on   appeal  t  patented  to  him,  and  be ..   _ 

1  behalf  of  the  Bradford.     Ai  ground*  for  the  miit  the  bill 

government  by  one  of  the  Aaaietant  Attor-  cbargee   that  the  oath   and   proof   wherebr 

ney.  General,  who  filed  a  certified  copy  of  u,^  ^t,(«,  ^^^  secured  were  falw  in  that. 

S.o'^r^^g'rin^t^.lir^tr.^ti'eS^:  ^^^   "k'T.^'^  ^^%^*'"'   ^"""^ 

formably  to  a  requert  of  the  Secretary  of  ^^'  *">   •"''   entered   into   an    agreement 

the  Interior,— eroecially  where  It  li  fairly  "'•*''   ™'    Wright,    a    clerk    and    agent    of 

inferable  that   the  letter  waa  exhibited   in  Bradford,  whereby  the  title  when  acquired 

the  court  below.  waa  to  be  paised  to  the  latter ;   that  botli 

IFor  other  caeee,  lee  Appeal  and  Brror.  VIH.  entriei  were  made  in  pureuance  of  this  un- 

d:  United  Butea,  IV,  a.  In  Digeit  Sop,  Ct,,,  .j           .u*       .j 

]9(J8.}  lawful  agreement  and  were  therefore  fraudu- 

Pnbttc  land*  ^  salt  to  annal  patent  ^  lent;   and  that   Bradford  took  the  tranafel 

offer  to  return  consideration.  from  Causey  under  the  agreement  and  with 

4.  An   offer   to   return   the   land   acrip  full    knowledge    of    the    fraud    perpetrated 

certificates   received   hv   the   United   Statea  upon   the   government.     It   aleo   is   alleged 

when  a  commutation  homestead  entir  fM  that,    in    virtue    of   an    arrangement    with 

made  is  not  a  prerequisite  to  a  suit  hy  the  B^^f^^d,  Causey  U  cUiming  mi  intereet  In 

government  to  annul  the  patent  because  of  ,    ,,     ,    '       ,     '     „,.,.,;'' iT    ..     r.lr, 

in  agreement  by  the  entryman  that  title,  »""  °'  '''e   !»"'*■    With   Bradford's   [Ml] 

when  acquired,  shall  inure  to  the  benefit  of  Co"**"*  »  decree  was  entered  against  hun. 

another.  Causey    ansivered,    denying    the    unlawful 

IFor  otber  eases,  see  Public  Lands,  I.  1,  S,  In  atrreenient  and  fraud,  and  the  suit  was  re- 

Dlren  Sop.  Ct.  1908.1  f„,^d  t„  ,  n,,,t^,^  „ho  found  the  facU  to 

[No.  197. 1  ^  *'  charged  in  the  bill.    The  findings  wera 

sustained   by  the  district  court,  which   a- 

Argoed  January  26,  1916.     Decided  March  tered  a  decree  against  Causey,  and  the  da- 

fl,  191fl.  cree   was   afBrmed   by   the  circuit  court  ol 

.  appeals.     121  C.  C.  A.  663,  203  Fed.  1022. 

APPEAL  from  the  United  SUtes  Circuit  Complaint  is  made  of  the  findings.     The; 

Court  of  Appeals  (or  the  Fifth  Circuit  "ere  concurred  in  by  the  master  and  both 

to  review  a  decree  which  affirmed  a  decree  courts,  and  therefore  should  be  permitted  to 

of  the  District  Court  for  the  Eastern  Dis-  stand  unless  shown  to  be  plainly  erroneoua. 

trict  of  Louisiana  in  a  suit  to  annul  a  pat-  Washington  Securities  Co.  t.  United  Statea, 

ent  for  public  lands.    Affirmed.  234  U.  S.  TS,  78,  SB  L.  ed.  1220,  1222,  34 

See  same  case  below,   121   C.  O.  A.   883,  Sup.  Ct.  Rep.  726;  Gilson  t.  United  SUtea, 

203  Fed.  1022.  234   U.   S.   3B0,  383,  fiS  L.  ed.   1381,   1362, 

The  facts  are  stated  in  the  opinion.  34  Sup.  Ct,  Rep.  778.     Testing  them  by  the 

w     ».   w       ..   ..  u...                J  •!.  evidence,   we  discover   no  plain  error,   but, 

and  filed  a  brief  for  appellant.  tained 

Assistant  Attorney  General  Knaebel  ar-  That  the  title  was  acquired  by  substltut- 
gued  the  cause,  and,  with  Hr.  8.  W.  Wil-  ing  the  minimum  price  of  the  land  for  a 
liams,  filed  a  brief  for  I4>pellee.  part  of  the  required  five  years  of  residenco 
and  cultivation,  as  permitted  by  the  corn- 
Mr.  Justice  Tan  DeTsnter  delivered  the  mutation  provision  of  the  homestead  law, 
opinion  of  the  court:  ■■  not  material,  for  the  agreement  to  obtain 
This  is  a  suit  by  t^a  United  Statea  to  ^^'  ''"d  tor  the  benefit  of  another  disquali- 
recover  the  title  to  167.77  acre*  of  land  in  ^^  Causey  from  acquiring  the  title  in  either 
Ascension'  parish,  Louisiana,  patented  to  ■^'x'e  Bailey  v.  Sanders,  228  U.  S.  603,  603, 
PowhaUn  E.  Causey  and  by  him  transferred  C7  L  ed.  BSE,  888,  33  Sup.  Ct.  Rep.  602; 
to  Jamea  L.  Bradford.  While  the  land  was  Qil*on  r.  United  States,  234  U.  S.  360,  384, 
yet  public,  Causey  aecured  a  preliminary  68  L.  ed.  1381,  1383,  3^  Sop.  Ct.  Rep.  778. 
homestead  entry  thereof  by  taking  an  oath,  "^e  bill,  while  purporting  to  be  brought 
as  waa  required,  that  he  had  not  directly  or  ">  *^'  o*™"  *nd  'o'  the  benefit  of  the 
Indirectly  made,  and  would  not  make,  any  United  States,  and  bearing  the  signature 
agreement  whereby  the  title  which  he  might  o'  ^e  assieUnt  United  SUtes  attorney  for 
acquire  would  inure  in  whole  or  in  part  to  the  district,  does  not  state  or  show  that  it 
the  benefit  of  another.  After  the  expiration  '■  brought  with  the  sanction  of  the  Attorney 
of  fourteen  months  he  secured  a  final  entry  General,  and  because  of  this  it  is  objected, 
under  the  commutation  provision  of  the  ■*  >t  was  in  both  courts  below,  that  the 
homestead  law  by  presenting  proof  that  he  bill  should  not  be  entertained,  but  dismissed, 
bad  not  sold  or  contracted  to  sell  any  part  In  the  absence  of  a  oontroUing  statute,  and 
of  the  land,  and  by  paying  therefor  In  so-  there  is  none,  it  is  essential  to  such  a  suit 
called  Bcrip  at  the  rate  of  (1.25  per  acre,  that  It  be  brought  with  the  Attorney  Gen- 
Pnrsuant  to  the  final  entry  the  land  waa  eral'i  approvali  and  while  the  usual  and 
'■"  140  TJ.  8. 


UU.  HANOVEB  STAB  MILLING  CO.  r.  METCAU'.  401-403 


betUr  practice  !■  to  stkU  or  show  in  the  Ct  B«p.  9ZT;   United  SUtei  1 

biU  that  it  )■  brought  with  liie  approval,  wealth  TitU  Ina.  A  T.  Co.  193  U.  S.  661,  48 

this   ia  not  indiapeiiBable.     The  caae  ia  ar-  L.  ed.   830,   24   Sup.  CU  Eep.   546;   United 

gued  here  on  behalf  of  the  government  by  6tuea  v,  Colorado  Anthracite  Co.  22S  U.  8. 

one  of  the  Aiaistaot  Attorneys  General,  who  219,  66  L.  ed.  1003,  32  Sup.  Ot  Bap.  017. 

files  •  certified  cop;  of  a  letter  [40S]  from  Decree   afflrmed. 

the  Attorney  General,  authoriiing  the  lusti- 

tution  of  the  suit  conformably  to  a  request  

of  the  Secretary  of  the  Interior.     Thia  saf- 

flciently  meeU  the  objection,  especially  as  HANOVER  STAR  HILLING  COMPAN;, 

it   ia   fairly   inferable   that   the   letter   wms  Petitioner, 

exhibited  in  the  courts  below.    United  StAtca  „_     '' 

▼.  Throd-inorton.  98  U.  S.  61,  TO.  26  L.  ed.  ^-  ^-  METCALF.      (No.  23.) 

93.  90;  Mcl^ughlm,  United  States, Wert-  ^^LBj,  ^  WHEEliTcOMPANT,   Appt 

«rn   P.  R.  Co.  ».  United  SUtea)    107  U.  8.  „j  Petitioner. 

S2e.  SZ8,  27  L.  ed.  021,  2  Sup.  Ct.  Rep.  802; 

Mullan  T.  United  States,  118  U.  S.  271,  276, 

30   L.  ed.  170,  172,  6  Sup.  Ct.  Rep.  1041; 

United  States  *.  San  Jacinto  Tin  Co.  lES  U. 

B.  273,  278-287,  31  L.  ed.  717,  74B-762.  8  (See  8.  C.  Reporter's  ed.  403-i26,) 

Sup.  Ct.  Sep.  850. 

The  further  objection  is  made  that  the  Trftdemark  —  tttMndonment  —  nonaser 

bill   cannot  be   mainUined   because   it  does  in  particular  market  —  estoppel. 

not  contain  an  offer  to  return  the  scrip  re-  ^     'u^*  I""''  "PPropriator  of  the  words 

c«ived  when  the  commuted  entry  was  made.  7  m  ^T  a          ^^Y''.  ^  confining  his  use 

TV-  «t.:_<i»,  .........  ty.t  ikl  .„•„  I.  „„  °'  y'*^  trademark  to  territory  north  of  the 

The  objection  aaaumes  that  the  suit  is  up-  q^;-;  ^i^„_  ^jj^  ^^^  ^^„,j  {j^^^  j,i,  ..^^ 

on  the  same  plane  aa  If  brought  by  an  m-  r^^..  f^^^^  jg  wholly  unknown  in  the  south- 
dividual  vendor  to  annul  a  aale  of  land  eutem  states  under  that  name,  loses  any 
fraudnlently  induced.  But,  as  this  court  right  to  enjoin  the  use  in  Alabama  ot  the 
has  aaid,  the  goTemment,  in  disposing  of  same  trademark  by  another  flour  manufac- 
Ita  publlo  landa,  does  not  assume  the  atti-  turer  who,  in  entire  good  faith  and  without 
tude  of  a  mere  seller  ot  real  estate  at  ita  knowledge  of  the  other  trademark,  has  built 
market  value.  These  lands  are  held  in  trust  "?»"<*»"  "i^'-''^.  *^t^«  '^  *?'  '^w 
I  II  .1.  _  I  J  1  -ji  *  eastern  states  that  in  the  flour  trade  in  that 
for  all  the  people,  and  in  providing  for  territory  the  mark  -Tea  Rose"  has  come  to 
their  diipoaal  Congress  has  sought  to  ad-  „g^  it',  (,„„,  „d  nothing  else. 
fance  the  intaresta  of  the  whole  country  by  [For  other  cims,  see  Trademark,  v.;  Estoppel, 
opening  them  to  entry  in  comparatively  I"-  "i-  ^  0\test  Sop.  Ct.  1908.1 
unall  tracts  under  restrictions  designed  to  On'**'  oompeUtlon  -  imitation  of  pack. 
«c«.mplUh  their  settlement,  development  ^;  ^  „„„„,„,t„,„  „,  „„„,  ,h,  ha.  built 
and  utihration.  And  when  a  suit  is  brought  ^^j,  ^^  extensive  trade  in  the  south- 
to  annul  a  patent  obtained  in  violation  of  eastern  atataa  for  flour  labeled  "Tea  Ross" 
these  restrictions,  the  purpose  is  not  merely  that  in  the  fiour  trade  in  that  tarritory  thoae 
to  regain  the  title,  but  also  to  enforce  a  words  have  come  ta  mean  its  flour  and 
public  statute  and  maintain  the  policy  un-  nothing  else  is  entitled,  irrespective  of  any 
derlying  it.  Such  a  suit  is  not  within  the  question  of  technical  trademark  right,  to 
reason  of  the  ordinary  rule  that  a  vendor  ^njoi"  t*>e  sale  in  Alabama  of  "Tea  Rose" 
suing  to  annul  a  sale  fraudulently  induced  """f  made  by  a  riva  manufacturer  and  put 
ninsf  offer  and  I.  ready  to  retu.n  the  con-  l^aVtsT^r  tat VyT'e'!^'i?uSE^ 
sideration  received.  That  rule,  if  applied,  to,  and  do,  deceive  ordinary  and  casual  pur- 
would  tend  to  fruBtrate  the  policy  of  the  chasers  into  the  belief  that  they  are  pur- 
public  land  laws;  and  so  it  is  held  that  the  chasing  ita  flour- 
wrongdoer  must  restore  the  title  unlawful-  [For  oUier  cases,  •*«  Dnfalr  Competition,  In 
ly  obtained  and  abide  the  judgment  of  Con-  °'«"*  ^"P"  ""  *"*' 
gress  as  to  whether  the  consideration  paid  [Kos.  23  and  30.] 
shall  be  refunded.    United  States  r.  Trinidad 

Coal  k  Coking  Co.  137  U.  S.  160,  170,  171,  Argued  Hay  t  and  10,  1915.   Decided  March 

34   L.  ed.   040,   644,   11   Sup.  Ct.   Rep.   C7;  6,  1916. 

Heckman  v.  United  States,  224   U.  8.  413, 

447,  60  L.  ed.  820,  833,  32   Sup.   Ct.  Rep.  NOTK.— On  territarlal  extent  of  right  in 

424.     And   see   Rev.   Stat    §   2302;    Comp.  trademark    or    tradename   used   In    limited 

e.  .    -innv   >  ..T11      1  .  T.,_»  IB   iBon  .k.t.  localitv  where  used  by  another  in  a  diff-r- 

Stat.  1B13   8  4771;  Act  June  16   1880.  diap.  ^  loimty-see  note  to  Eastern  Outfitting 

244,  S  2,  21   Stat,   at  L  287,  Comp.  Stat.  ^o.  v.  Maiheim,  35  L.R.A.{N.S.)   251.  and 

1B13,    S    *586;    (403]    HoITeld    v.    United  to  case  No.  30  in  circuit  court  of  appeals. 

States,  1S6  U.  S.  273,  46  L.  ed.  1160,  22  Sup.  as  reported  in  L.R.A.1916D,  136. 

40  t.  ed.  "^^^ 


SUPREME  COURT  Of  THE  UNITED  ST&TBS.  Oct.  Tsui, 

ON  WRIT  of  Certiorari  to  the   United    L.RA.(NjS.)    2fi8,  110  C.  C.  A.   MS,   18» 
State*  Circuit  Court  of  Appeals  for  tlie     Fed.  &6i   Thomaa  Q.  OttmAl  ft  Son  Co.  t. 
Fiftli  Circuit  to  review  a  decree  which  re-    McIlTaine  ft  Baldwin,  171  Fed.  US. 
Tersed,  with  direction*  to  dismiai  the  bill, 
a  decree  of  the  District  Court  for  the  Middle 


ra.   Bdward    Brerett   Iioacftn   and 

_.,,,,.,.  .,  .  „    J.  Fp«d  Ollater  argued  the  eanaa  and  tiled 

DiJtrict  of  Alabama,  grMting  a  temporary    ^  j^^,^  ,^  j,   j,  u'Jtcalf: 


.  PPEAL  ta,n  a,  Un,W  SUf.  Circuit  u^^^.,  „  „         ""a.  ii^'./u,. 

A  Court  ol  App.;l.  lo,  tl,  B,.olh  Clr-  ,^;^|,  „»«  h.™  b«u  Ih.  Bnt  to  ««  or 

cult  to  review  a  decreo  which  re.ereed  h , ,._ „,      .^i.i„   „. 

teree  ol  the  Dl.trlct  Court  to  th.  E..U™  ^^  "»  "»'  »»  '■!»  "«iol«  of   pro- 

pielrlct  ot  lUbiole,  grenling  .  Uuipor.r,  o^^i,^  „„,  a,.  ,.  Alcom,  IM  a  S. 

lojunctlou  to  ™l'«.i"  a    Inlrlugeoeot  ol  3,  ;_  ^    „        „           ^            „ 

.  trulemark.    Dlniiud  lor  w.nt  ol  jurii-  n,u.„,  1  H.  Cui.1  Co.  v.  CUA,  U  Wmll. 


diction. 


0' 


311,  20  L.  ed.  681. 


-.."«"„!!..?*':".!«  .''•^"'?i       S..  Vht  ^  the  u»  o,  .  fdiulca  .,.-. 


States   Circuit   Court   of  Appeali 


Y    """"^ ^'r™'.  r  -Kc™-    ■■»     „,„k    ertenda   throughout    the   jurisdiction 

the  Seventh  Circuit  to  review  the  aame  de-      ,  ,,      .  ,„,     J?  .  ,_  ...  i.,  ,. 

of  the  sovereignty  wherein  the  right  is  cra- 
ated;  and  it  Is  Immaterial  to  its  exolueive 


cree.    Affirmed. 

A.X"o:  F^.  ?iiTKo.to:  LlllZnei.    -.t''*^  ^«  P-PHetor  doe.  not  «tend  hi. 

IZ^lk  0.  C.  A.  «£=«.8  F^d.  013.  '•T^r,:,^LtSt!TS7.  »  I.  «L 

The  fact,  are  sUUd  In  the  opinion.  ^^^_    Columbia  m/i1  Co.  v.  Alcorn,  «ipra; 

Meura.  Henry  pitta  and  Edgar  L.  Amoskeag  Mfg.  Co.  t.  Trainer,  101  U.  S.  fil, 
CUrluon  argued  the  cause,  and,  with  26  L.  ed.  993;  McLean  v.  Fleming,  BO  U.  S. 
Hewr..  James  E.  Morrisette  and  John  Lon-  246,  24  L.  ed.  828;  Baxldner  v.  Eisner  ft 
don,  filed  a  brief  for  the  Hanover  Star  Hill-  M.  Co.  179  U.  S.  10,  46  L.  ed.  CO,  21  Sup. 
ing  Company :  Ct.  Rep.  7 ;  Saslehner  t.  Slegel-Oooper  Co. 

Trademark  property  ii  limited  to  the  ter-  179  U.  S.  42,  46  L.  ed.  77,  81  Sup.  Ct.  Rap. 
ritory  occupied  by  the  trade  which  is  inci-    16. 

dent  to  the  mark,  and  the  rights  in  the  One  whose  registered  trademark  la  mani- 
mark  extend  only  to  markets  where  the  festly  an  imitation  of  an  earlier  but  un- 
trader's  good,  have  become  known  and  iden-  registered  trademark  cannot  reatrais  a 
tifled  hy  tlie  use  of  the  mark.  third  party  from  Oiiug  it. 

Hanover    SUr    Mill.    Co.   t.   Allen   ft   W.        Ubeda  v.  ZialciU,  220  U.  S.  462,  67  I*,  ad. 
Co.  LJt.A.19ieD,  13a,  126  C.  C.  A.  616,  208    2B6,  33  Sup.  Ct.  Rep.  166. 
Fed.    613:    C.    A,    Brises    Co.    v.    National        .,  _,         ^ -^       „  ,  j  « 

„,  ,        _'       .  r^       ,n,  JO     o-Mi         t  Mewr..  Edward  Krerett  tongnn  and  *. 

Wafer    Co.    Ann.    Cas.    19140,    032,    note;    ___.   _,,  ,  ,   ..„  „„„V_j    _uu 

Cohen  V.  Nagle,  6  Ann.  Cas.  661,  note;  Sar-  ^,  "n  wk  .  .  «^  ^T^  ^ 
tor  y.  Bchader,  126  Iowa,  696,  101  N.  W.  "'■  \  S,.^.  ^  ^  ' 
611 1  Halnque  v.  Cyclops  Iron  Work^  136  Allen  ft  Wheeler  Company: 
Cal.  351,  68  Pao.  1014;  Corwin  v.  Daly,  7  The  sole  and  only  function  ol  a  t«!hnical 
BoBw.  222 ;  Lee  v.  Haley,  L.  R.  5  Oh.  166,  trademark  i.  to  indicate  the  origin  or  own- 
39  L  J.  Ch.  N  8.  284,  22  L.  T.  N.  S.  261,  *^"*''P  "'  '"^  S*^»  ^  "'"*''  "  "  *™»"a. 
18  Week.  Rep.  242;  Miskel!  v.  Prokop.  68  Delaware  ft  H.  Canal  Co.  v.  Clark,  U 
Neb.  628,  70  N.  W.  552;  Tetlow  v.  Tappan,  Wall.  311,  20  L.  ed.  681;  Amoskeag  Wg. 
86  Fed.  774;  Levy  v.  Waitt,  26  L.R.A.  180,  Co.  v.  Spear,  2  Sandf.  898;  Lawrence  Mfg. 
10  C.  C.  A.  227,  21  U.  8.  App.  3B4,  81  Fed.  Co.  v.  TenneMee  Mfg.  Co.  138  U.  8.  637,  34 
1008;  Heublein  v.  Adams,  126  Fed.  782;  ^  <^  »8T,  U  Sup.  Ct.  Rep.  3B8;  Amoriceag 
Diets  V.  Horton  Mfg.  Co.  06  C.  C.  A.  41,  Oo.  v.  Trainer.  101  U.  S.  61,  26  L.  ed.  81»».- 
170  Fed.  885;  Menendei  v.  Holt,  128  U.  S.  T^o  'eal  •>»"■  "'  ^^  remeij  tor  infringa- 
614,  32  L.  ed.  620,  0  Sup.  Ct.  Rep.  143;  meot  of  a  techoical  trademark  ia  th«  ix^ 
Macmahan  Pharmacal  Co.  v.  Denver  Chem-  elusive  property  right  in  the  use  of  th* 
ical  Mfg.  Co.  Gl  C.  0.  A.  302,  113  Fad.  4S8;    mark  itaeU. 

McLean  v.  Fleming,  06  U.  8.  245,  24  L.  ed.  Lawrence  Mfg.  Co.  t.  Tennesaee  M^.  Co. 
828;  Ooodyear's  Rubber  Glove  Mfg.  Co.  t.  138  U.  S.  637,  84  L.  ed.  807,  11  Sup.  Ct 
Goodyear  Rubber  Co.  128  U.  8.  698,  32  L.  Rep.  398;  Elgin  Nat.  Watch  Oo.  r.  Illinois 
ed.  636,  9  Sup.  Ct.  Rep.  186;  Howe  Scale  Wateh  Case  Co.  178  U.  8.  666,  46  L.  ed.  30S, 
Co.  V.  Wycoff,  Beamans  ft  Benedict,  198  U.  21  Sup.  Ct.  Bep.  270. 
S.  118,  49  L.  ed.  972,  26  Sup.  Ct.  Rep.  600;  The  inherent  characteristic  or  attribuU 
Jtothbone  ▼.  Champion  Steel  Range  Co.  37  of  a  trademark  ia  ita  exduMVeneaa;  and  it 
ri4  140  V.  s. 


1916. 


HANOVER  STAR  MILLING  CO.  y.  MSTCALF. 


406-^7 


must  diBtinctlj  indicate  origin  or  owner- 1 
ehip. 

Columbia  Mill  Co.  t.  Alcom»  150  U.  S. 
4IM),  87  L.  ed.  1144,  14  Sup.  Ct.  Rep.  161; 
Amoskeag  Mfg.  Co.  t.  Trainer,  101  U.  S. 
61,  25  L.  ed.  093;  McLean  y.  Fleming,  90 
U.  S.  245,  24  L.  ed.  828. 

The  principles  of  this  case  have  hereto- 
fore been  decided  by  this  honorable  court, 
in  the  following  cases: 

Kidd  v.  Johnson,  100  U.  S.  017,  26  L.  ed. 
760;  Columbia  Mill  Co.  y.  Alcorn;  Amos- 
keag Mfg.  Co.  y.  Trainer;  and  McLean  y. 
Fleming,  supra;  Sazlehner  y.  Elisner  k  M. 
Co.  179  U.  S.  19,  46  L.  ed.  60,  21  Sup.  a. 
Rep.  7;  Saxlehner  y.  Siegel-Cooper  Co.  179 
U.  S.  42,  46  L.  ed.  77,  21  Sup.  Ct.  Rep.  16. 

The  ri^t  to  the  use  of  a  technical  trade- 
mark extends  throughout  the  jurisdiction  of 
the  soyereignty  wherein  the  right  is  cre- 
ated, and  it  is  immaterial  to  its  exclusive 
use  that  the  proprietor  does  not  extend  his 
business  to  a  particular  locality. 

Derringer  y.  Plate,  29  Cal.  292,  87  Am. 
Dec  170;  Browne,  Trade-Marks,  §§  47,  324; 
Paul,  Trade-Marks,  |  88;  Hopkins,  Trade- 
Marks,  I  13;  Kidd  y.  Johnson,  100  U.  S. 
617,  25  L.  ed.  769;  Metcalf  v.  Hanover  Star 
Mill.  Co.  1^  C.  C.  A.  483,  204  Fed.  211; 
United  Drug  Co.  y.  Theodore  Rectanus  Co. 
206  Fed.  570;  Saxlehner  v.  Eisner  k  M.  Co. 
179  U.  S.  19-39,  45  L.  ed.  60-76,  21  Sup.  Ct. 
Rep.  7;  Saxlehner  v.  Siegel-Cooper  Co.  179 
U.  S.  42,  46  L.  ed.  77,  21  Sup.  Ct.  Rep.  16; 
Menendez  y.  Holt,  128  U.  S.  514,  32  L.  ed. 
626,  9  Sup.  Ct.  Rep.  143;  McLean  y.  Flem- 
ing, 96  U.  S.  245,  24  L.  ed.  828. 

The  right  of  action  in  technical  trade- 
marks is  based  upon  the  ground  that  an  ex- 
elusive  property  right  in  the  mark  is 
claimed,  and  the  mere  use  of  a  close  imi- 
tation of  it  by  another  ipso  facto  creates  a 
cause  of  action.  Unfair  competition  cases 
do  not  necessarily  involve  the  violation  of 
any  exclusive  right  in  a  trademark,  but  may 
arise  from  the  use  of  marks  which  are  free 
to  everybody.  It  is  true,  the  results  of  the 
infringement  in  both  cases  may  be  identical ; 
that  is,  injury  to  the  owner  and  also  to 
the  public.  However,  this  similarity  in  re- 
sults does  not  affect  the  kind  and  degree  of 
ownership  in  either. 

Cohen  y.  Nagle,  2  LRJL.(N.S.)  964,  and 
note,  190  Mass.  4,  76  N.  E.  276,  6  Ann.  Cas. 
663. 

Mr.  Justice  Pitney  delivered  the  opinion 
of  the  court: 

These  cases  were  argued  together,  and 
may  be  disposed  of  in  a  single  opinion. 

In  No.  23,  the  Hanover  Star  Milling  Com- 
pany, an  Illinois  corporation  engaged  in  the 
manufacture  of  flour  in  that  state,  filed  a 
bill  in  equity  on  March  4,  1912»  in  the 
«0  Id.  ed. 


United  States  district  court  for  the  middle 
district  of  Alabama,  against  Metcalf,  a  citi- 
zen of  the  state  of  Alabama  and  a  merchant 
engaged  in  the  business  of  selling  flour  at 
Greenville,  Butler  county,  in  that  state,  to 
restrain  alleged  trademark  infringement 
and  unfair  competition.  The  bill  averred 
that  for  twenty-seven  years  last  past  com- 
plainant had  been  engaged  in  the  manufac- 
ture of  a  superior  and  popular  grade  of 
flour,  sold  by  it  at  [406]  all  times  under 
the  name  of  "Tea  Rose'*  flour,  in  a  wrapping 
with  distinctive  markings,  including  the 
words  "Tea  Rose"  and  a  design  containing 
three  roses  imprinted  upon  labels  attached 
to  sacks  and  barrels;  that  this  flour  had 
been  marketed  thus  by  complainant  in  the 
state  of  Alabama  for  the  preceding  twelve 
years,  during  which  time,  by  maintaining  a 
high  and  uniform  quality,  by  expensive  ad- 
vertising, and  by  diligent  work  of  its  repre- 
sentatives, it  had  built  up  a  large  and  lucra- 
tive market,  with  annual  sales  of  more  than 
$175,000  of  Tea  Rose  flour  in.  that  state, 
and  had  established  a  valuable  reputation 
for  the  name  "Tea  Rose"  and  the  distinctive 
wrappings  in  Alabama  and  other  states, 
particularly  Georgia  and  Florida;  that  un- 
til shortly  before  the  commencement  of  the 
suit  complainant's  Tea  Rose  fluur  was  the 
only  flour  made,  sold,  or  offered  for  sale 
under  that  name  in  Butler  county  or  else- 
where in  the  state  of  Alabama,  and  the 
name  "Tea  Rose"  had  represented*  and 
stood  for  complainant's  flour;  and  that  re- 
cently the  Steeleville  Milling  Cpmpany,  of 
Steeleville,  Illinois,  had«  through  Metcalf's 
agency,  been  marketing  in  Alabama,  and 
particularly  in  Butler  county,  flour  of  its 
manufacture,  in  packages  and  wrappings 
substantially  identical  with  complainant's 
and  bearing  a  design  containihg  three  roses 
and  the  name  "Tea  Rose"  upon  the  labels, 
in  a  manner  calculated  to  deceive  and  in 
fact  deceptive  to  purchasers,  thereby  threat- 
ening pecuniary  loss  to  complainant  exceed- 
ing $3,000  in  amount,  and  destroying  the 
prestige  of  complainant's  "Tea  Rose"  flour, 
and  damaging  its  trade  therein. 

Defendant's  answer  denied  all  attempts 
to  deceive  purchasers,  and  further  denied 
complainant's  right  to  the  exclusive  use  of 
the  words  "Tea  Rose"  or  the  picture  of  a 
rose  as  a  trademark;  averred  that  long 
prior  to  complainant's  flrst  use  of  it,  and  as 
early  as  the  year  1872,  the  name  had  been 
adopted,  appropriated,  and  used  as  [407]  a 
trademark  for  flour  by  the  firm  of  Allen  & 
Wheeler,  of  Troy,  Ohio,  and  used  by  it  and 
its  successor,  the  Allen  &  Wheeler  Company, 
continuously  as  such;  and  alleged  that  the 
Steeleville  Milling  Company  had  used  its 
"Tea  Rose"  brand  for  more  than  sixteen 
years  last  past,  and  as  early  --  •^'- -r 


407-409 


SUPREME  CXDURT    OF  THE  UNITED  STATE& 


Oct.  Tebm, 


1890  had  sold  flour  in  Alabama  under  that 
label. 

Upon  consideration  of  the  bill  and  answer 
and  affidavits  submitted  by  the  respective 
parties,  the  district  court  granted  a  tem- 
porary injunction  restraining  Metcalf  from 
selling  flour  labeled  *Tea  Rose,"  manufac- 
tured by  the  Steeleville  Company  or  any 
person,  flrm^  or  corporation  otiier  than  the 
Hanover  Company,  at  Greenville,  or  at  any 
other  place  in  the  middle  district  of  Ala- 
bama. Upon  appeal,  the  circuit  court  of 
appeals  for  the  flfth  circuit  reversed  this 
decree  and  remanded  the  cause,  with  direc- 
tions to  dismiss  the  bill.  122  C.  C.  A.  483, 
204  Fed.  211.  A  writ  of  certiorari  was  then 
allowed  by  this  court. 

In  No.  30,  the  Allen  k  Wheeler  Company, 
a  corporation  of  the  state  of  Ohio,  manu- 
facturing flour  at  the  city  of  Troy,  in  that 
state,  filed  a  bill  against  the  Hanover  Star 
Milling  Company  on  May  23,  1912,  in  the 
United  States  district  court  for  the  eastern 
district  of  Illinois,  averring  that  in  or  be- 
fore the  year  1872  the  firm  of  Allen  & 
Wheeler,  then  engaged  in  the  manufacture 
of  flour  at  Troy,  adopted  as  a  trademark 
for  designating  one  of  its  brands  the  words 
''Tea  Rose,"  and  from  thence  until  the  year 
1904  continuously  used  that  trademark  by 
placing  it  upon  sacks,  barrels,  and  packages 
containing  the  brand  and  quality  of  flour 
designated  by  that  term  and  sold  through- 
out the  United  States;  that  in  1904  the 
Allen  Jt  Wheeler  Company  was  incorporated 
and  took  over  the  mills,  machinery,  stock, 
trademark,  and  good  will  of  the  firm,  since 
which  time  the  corpoiation  had  continued 
to  use  the  trademark  upon  fiour  of  its  man- 
ufacture, and  had  distributed  and  sold  such 
flour  in  the  markets  [408]  of  the  United 
States,  whereby  the  words  "Tea  Rose"  had 
become  the  common -law  trademaik  of  the 
Allen  k  Wheeler  Company;  that  recently 
it  had  learned  that  the  Hanover  Star  Mill- 
ing Company  had  adopted  the  words  "Tea 
Rose"  as  designating  a  brand  of  flour  manu- 
factured by  it,  and,  notwithstanding  no- 
tice of  complainant's  rights,  was  persisting 
in  the  sale  of  its  flour  under  that  name  and 
threatening  to  continue  so  to  do;  and  that 
defendant  had  sold  large  quantities  of  Tea 
Rose  flour,  particularly  in  the  markets  of 
the  states  of  Alabama,  Florida,  and  Missis- 
sippi, with  large  gross  sales,  and  profits 
approximating  $5,000  per  year  for  the  past 
five  years,  causing  damage  and  loss  to  com- 
plainant in  excess  of  $3,000.  An  injunction 
and  an  accounting  of  profits  were  prayed. 
Upon  t)iis  bill,  a  demurrer  filed  by  the  Han- 
over Company,  and  affidavits  presented  by 
both  parties,  the  district  court  granted  a 
temporary  injunction  restraining  the  use  of 
the  words  "Tea  Rose"  as  a  trademark  for 
716 


flour,  without  territorial  restriction.  The 
circuit  court  of  appeals  for  the  seventh  cir- 
cuit reversed  this  decree,  and  renumded  the 
cause  to  the  district  court  for  further  pro- 
ceedings not  inconsistent  with  its  opinion. 
L.RJL1916D,  136,  126  C.  C.  A.  616,  208  Fed. 
513.  An  appeal  was  taken  to  this  conrt» 
and  a  writ  of  certiorari  was  subsequently 
granted.  The  appeal  must  be  dismissed  for 
want  of  jurisdiction,  and  the  case  will  be 
disposed  of  under  the  writ  of  certiorarL 

No  question  is  raised  respecting  the  pro- 
priety of  passing  upon  the  questions  at  is- 
sue on  a  review  of  decisions  rendered  upon 
applications  for  temporary  injunction.  Both 
district  courts  granted  such  injunctions, 
and  both,  circuit  courts  of  appeals  reversed 
upon  grounds  that  went  to  the  merits. 
These  courts  differed  upon  fundamental 
questions,  and  it  was  because  of  this  that 
the  writs  of  certiorari  were  allowed,  the  sit- 
uation being  such  that  it  was  deemed  proper 
to  allow  them  before  flnal  decrees  [409] 
were  made,  notwithstanding  the  general 
rule  to  the  contrary.  American  Constr.  Co. 
V.  Jacksonville,  T.  &  K.  W.  R.  Co.  148  U. 
S.  372,  378,  384,  37  L.  ed.  486,  489,  491, 
13  Sup.  Ct.  Rep.  758;  The  Three  Friends, 
166  U.  S.  1,  49,  41  L.  ed.  897,  913,  17  Sup. 
Ct.  Rep.  495;  The  Conqueror,  166  U.  S. 
110,  113,  41  L.  ed.  937,  939,  17  Sup.  Ct. 
Rep.  510;  Denver  v.  New  York  Trust  Co. 
229  U.  S.  123,  133,  57  L.  ed.  1101,  1120,  33 
Sup.  Ct.  Rep.  657. 

In  both  cases  it  was  shown  without  dis- 
pute that  the  firm  of  Allen  &  Wheeler 
adopted  and  used  the  words  "Tea  Rose*'  as 
a  trademark  for  one  kind  or  quality  of 
flour  manufactured  by  it  as  early  as  the 
year  1872,  and  continued  that  use  until 
the  year  1904,  when  the  Allen  &  Wheeler 
Company  was  incorporated  and  took  over 
the  mills,  machinery,  stock,  trademark,  and 
good  will  of  the  firm  and  succeeded  to  its 
business.  But  there  is  nothing  to  show  the 
extent  of  such  use  or  the  markets  reached 
by  it,  except  that  in  the  year  1872  Allen 
&  Wheeler  sold  three  lots  of  25  barrels  each 
to  a  firm  in  Cincinnati,  Ohio,  and  one  lot 
of  100  barrels  to  a  firm  in  Pittsburgh, 
Pennsylvania;  that  in  the  early  70's  an- 
other firm  in  Pittsburgh  was  a  customer 
for  this  brand;  and  that  in  the  later  70's 
a  firm  in  Boston,  Massachusetts,  was  a  cus- 
tomer for  the  same  brand.  As  to  the  Allen 
&  Wlieeler  Company,  there  are  affivadits 
stating  in  general  terms  that  since  its  in- 
corporation in  1904,  and  "continuously 
down  to  the  present  time,"  the  company  has 
used  the  brand  "Tea  Rose"  for  flour;  but 
there  is  a  remarkable  absence  of  particular 
statements  as  to  time,  place,  or  circum- 
stances; in  short,  no  showing  whatever  as 
to  the  extent  of  the  use  or  the  marketa 

240  U.  8. 


1916. 


HANOVER  STAR  MILLING  CO.  y.  METCALF. 


409-412 


reached.  There  is  nothing  to  show  that  the 
Allen  k  Wheeler  "Tea  Rose"  flour  has  been 
even  advertised  in  Alabama  or  the  adjoin- 
ing states,  and  there  is  clear  and  undis- 
puted proof  that  it  has  not  been  sold  or 
offered  for  sale  or  known  or  heard  of  by  the 
trade  in  Alabama,  Mississippi,  or  Georgia. 
In  No.  30,  there  is  uncontradicted  proof 
that  the  Allen  k  Wheeler  Company  is  selling 
flour  in  Alabama  and  Georgia,  but  under 
the  brands  <*£ldean  Patent"  and  '*Trojan 
Special." 

[410]  In  both  suits,  the  Hanover  Star 
Milling  Company  introduced  affidavits  fair- 
ly showing  that  shortly  after  its  incorpora- 
tion in  the  year  1885  it  adopted  for  one  of 
its  brands  of  flour  the  name  "Tea  Rose,"  and 
adopted  for  the  package  or  container,  wheth- 
er sack  or  barrel,  a  label  bearing  the  name 
"Tea  Rose"  and  the  design  already  referred 
to;  and  that  this  trademark  was  adopted 
and  used  in  good  faith  without  knowledge 
or  notice  that  the  name  "Tea  Rose"  had 
been  adopted  or  used  by  the  Allen  &  Wheel- 
er flrm,  or  by  anybody  else.  In  1904  the 
Hanover  Company  began  and  has  since 
prosecuted  a  vigorous  and  expensive  cam- 
paign of  advertising  its  Tea  Rose  flour, 
covering  the  whole  of  the  state  of  Alabama, 
and  parts  of  Mississippi,  Georgia,  and  Flo- 
rida, employing  many  ingenious  and  inter- 
esting devices  that  are  detailed  in  the 
proofs,  with  the  result  that  at  the  com- 
mencement of  the  litigation  its  sales  of 
Tea  Rose  flour  in  these  markets  amounted 
to  more  than  $150,000  a  year,  the  Hanover 
Star  Milling  Company  has  come  to  be 
known  as  the  Tea  Rose  mill,  the  reputation 
of  the  mill  is  bound  up  with  the  reputation 
of  Tea  Rose  flour,  and  "Tea  Rose"  in  the 
flour  trade  in  the  territory  referred  to 
means  flour  of  the  Hanover  Companys'  man- 
ufacture. There  is  nothing  to  show  any 
present  or  former  competition  in  Tea  Rose 
flour  between  the  latter  company  and  the 
Allen  k  Wheeler  flrm  or  corporation,  or 
that  either  party  has  even  advertised  that 
brand  of  flour  in  territory  covered  by  the 
activities  of  the  other. 

Metcalf's  purchases  of  competing  Tea 
Rose  flour,  which  gave  rise  to  the  suit 
brought  by  the  Hanover  Company  against 
him,  were  made  from  the  Steeleville  Milling 
Company,  an  Illinois  corporation,  which  ap- 
pears to  have  adopted  the  name  and  design 
of  a  tea  rose  for  flour  in  the  year  1895. 

It  should  be  added  that,  so  far  as  ap- 
pears, none  of  the  parties  here  concerned 
has  registered  the  trademark  [411]  und^ 
any  act  of  Congress  or  under  the  law  of  any 
state.  Nor  does  it  appear  that  in  any  of  the 
states  in  question  there  exists  any  peculiar 
local  rule,  arising  from  statute  or  decision. 
Hence,  the  cases  must  be  decided  according 
•0  Ii.  ed. 


to  common-law  principles  of  general  appli- 
cation. 

Interesting  and  important  questions  are 
raised  concerning  the  territorial  extent  of 
trademark  riglits.  In  behalf  of  the  Han- 
over Company  it  is,  in  effect,  insisted:  (a) 
that  the  failure  ojf  the  Allen  k  Wheeler 
Company  and  its  predecessors  to  enter  the 
southeastern  territory  with  their  Tea  Rose 
flour,  and  the  fact  that  such  flour  has  been 
and  is  wholly  unknown  there  under  that 
name,  disentitle  it  to  interfere  with  the 
Hanover  Company's  trade  established  in 
good  faith  in  that  territory  under  the  same 
mark;  (b)  that  the  same  considerations  en- 
title Hanover  to  affirmative  trademark 
rights  of  its  own,  enforceable  against  the 
Steeleville  Company  and  everybody  else  over 
whom  it  has  priority  in  that  territory;  and 
(c)  that  Hanover  is  entitled  to  relief 
against  Steeleville  and  against  Metcalf  as 
its  agent,  upon  the  ground  of  unfair  com- 
petition in  trade  regardless  of  the  trade- 
mark right.  An  affirmative  answer  to  the 
first  proposition  will  decide  the  Allen  k 
Wheeler  case  (No.  30)  in  favor  of  Hanover, 
and  an  affirmative  answer  to  the  third 
proposition  will  decide  the  Metcalf  case 
(No.  23)  in  favor  of  Hanover,  irrespective 
of  the  disposition  that  might  be  made  of 
the  second  proposition.  In  view  of  possible 
consequences  to  the  rights  of  parties  not 
before  the  court,  it  is  desirable  to  limit  the 
range  of  our  decision  as  much  as  prac- 
ticable, especially  as  the  proofs  now  before 
us  are  incomplete  and  in  some  respects  un- 
satisfactory. 

It  will  be  convenient  to  dispose  first  of 
No.  30.  Here  the  bill  is  rested  upon  al- 
leged trademark  infringement,  pure  and 
simple,  and  no  question  of  unfair  competi- 
tion is  involved.  The  decision  of  the  court 
of  appeals  for  the  seventh  circuit  in  favor  of 
the  Hanover  Company  and  [412]  against 
the  Allen  k  Wheeler  Company  was  rested 
upon  the  ground  that  although  the  adoption 
of  the  Tea  Rose  mark  by  the  latter  ante- 
dated that  of  the  Hanover  Company,  its  on- 
ly trade,  so  far  as  shown,  was  in  territory 
north  of  the  Ohio  river,  while  the  Hanover 
Company  had  adopted  "Tea  Rose"  as  its 
mark  in  perfect  good  faith,  with  no  knowl- 
edge that  anybody  else  was  using  or  had 
used  those  words  in  such  a  connection,  and 
during  many  years  it  had  built  up  and  ex- 
tended its  trade  in  the  southeastern  terri- 
tory, comprising  Georgia,  Florida,  Alabama, 
and  Mississippi,  so  that  in  the  flour  trade 
in  that  territory  the  mark  "Tea  Rose"  had 
come  to  mean  the  Hanover  Company's  flour, 
and  nothing  else.  The  court  held  in  effect 
that  the  ri^t  to  protection  in  the  exclusive 
use  of  a  trademark  extends  only  to  those 
markets  where  the  trader's  goods  have  b- 

7 


41£-414 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tkbm, 


come  known  and  identified  bj  hie  use  of 
the  murk;  and  because  of  the  nonoccupancy 
by  the  Allen  k  Wheeler  Company  of  the 
southeastern  markets  it  had  no  ground  for 
relief  in  equity.  Let  us  test  this  by  refer- 
ence to  general  principles. 

The  redress  that  is  accorded  in  trade- 
mark cases  is  based  upon  the  party's  right 
to  be  protected  in  the  good  will  of  a  trade 
or  business.  The  primary  and  proper  func- 
tion of  a  trademark  is  to  identify  the  origin 
or  ownership  of  the  article  to  which  it  is 
affixed.  Where  a  party  has  been  in  the 
habit  of  labeling  his  goods  with  a  distinc- 
tive mark,  so  that  purchasers  recognize 
goods  thus  marked  as  being  of  his  produc- 
tion, others  are  debarred  from  applying  the 
same  mark  to  goods  of  the  same  description, 
because  to  do  so  would  in  effect  represent 
their  goods  to  be  of  his  production  and 
would  tend  to  deprive  him  of  the  profit  he 
might  make  through  the  sale  of  the  goods 
which  the  purchaser  intended  to  buy. 
Courts  afford  redress  or  relief  upon  the 
ground  that  a  party  has  a  valuable  interest 
in  the  good  will  of  his  trade  or  business, 
and  in  the  trademarks  adopted  to  maintain 
and  extend  it.  The  essence  of  the  [413] 
wrong  consists  in  the  sale  of  the  goods  of 
one  manufacturer  or  vendor  for  those  of  an- 
other. Delaware  &  H.  Canal  Co.  v.  Clark,  13 
Wall.  311,  322,  20  L.  ed.  581,  5S3;  McLean  v. 
Fleming,  96  U.  S.  245,  251,  24  L.  ed.  828, 
830;  Amoskeag  Mfg.  Co.  v.  Trainer,  101  U. 
S.  51,  53,  25  L.  ed.  993,  994;  Menendez  v. 
Holt,  128  U.  S.  514,  520,  32  L.  ed.  526,  527, 
9  Sup.  Ct.  Rep.  143;  Lawrence  Mfg.  Co.  v. 
Tennessee  Mfg.  Co.  138  U.  S.  537,  546,  34 
L.  ed.  997,  1003,  11  Sup.  Ct.  Rep.  306. 

This  essential  element  is  the  same  in 
trademark  cases  as  in  cases  of  unfair  compe- 
tition unaccompanied  with  trademark  in- 
fringement. In  fact,  the  common  law  of 
trademarks  is  but  a  part  of  the  broader  law 
of  unfair  competition.  Elgin  Nat.  Watch 
Co.  V.  Illinois  Watch  Case  Co.  179  U.  S.  665, 
674,  45  L.  ed.  365,  379,  21  Sup.  Ct.  Rep. 
270;  G.  &  C,  Merriam  Co.  v.  Saalfield,  117 
C.  C.  A.  245,  198  Fed.  369,  372;  Cohen  v. 
Nagle,  190  Mass.  4,  8,  15,  2  L.R.A.(N.S.) 
964,  76  N.  E.  276,  5  Ann.  Cas.  553,  555,  558. 

Common-law  trademarks,  and  the  right  to 
their  exclusive  use,  are,  of  course,  to  be 
classed  among  property  rights  (Trade-Mark 
Cases,  100  U.  S.  82,  92,  93,  25  L.  ed.  550, 
551 ) ;  but  only  in  the  sense  that  a  man's 
right  to  the  continued  enjoyment  of  his 
trade  reputation  and  the  good  will  that 
flows  from  it,  free  from  unwarranted  inter- 
ference by  others,  is  a  property  right,  for 
the  protection  of  which  a  trademark  is  an 
instrumentality.  As  was  said  in  the  same 
case  (p.  94),  the  right  grows  out  of  use, 
noi  mere  adoption.    In  the  English  courts 


it  often  has  been  said  that  there  ia  no  prop* 
erty  whatever  in  a  trademark,  as  sueh.  fir 
Ld.  Langdale,  M.  R.,  in  Perry  v.  Truefitty  6 
Beav.  73;  per  Vice  Chancellor  Sir  Wm.  Paga 
Wood  (afterwards  Ld.  Hatherly),  in  0^- 
lins  Co.  V.  Brown,  3  Kay  A  J.  423,  426,  I 
Jur.  N.  S.  930,  5  Week.  Rep.  676;  per 
Ld.  Herschell  in  Reddaway  t.  Banham 
[1896]  A.  C.  199,  209,  65  L.  J.  Q.  B.  N.  & 
381,  74  L.  T.  N.  S.  289,  44  Week.  Rep.  638» 
25  Eng.  Rul.  Cas.  193.  But  since  in  tbte 
same  cases  the  courts  recognize  the  right  of 
the  party  to  the  exclusive  use  of  marka 
adopted  to  indicate  goods  of  hia  manufae- 
ture,  upon  the  ground  that  "a  man  is  not  to 
sell  his  own  goods  under  the  pretense  that 
they  are  the  goods  of  another  man;  he  can- 
not be  permitted  to  practise  such  a  decep- 
tion, nor  to  use  the  means  which  contributa 
to  that  end.  He  cannot  therefore  be  [414] 
allowed  to  use  names,  marks,  letters,  or 
other  indicia,  by  which  he  may  induce  pur- 
chasers to  believe  that  the  goods  which  he  ia 
selling  are  the  manufacture  of  another  per- 
son" (6  Beav.  73) ;  it  is  plain  that  in  deny- 
ing the  right  of  property  in  a  trademark  it 
was  intended  only  to  deny  such  property 
right  except  as  appurtenant  to  an  estab- 
lished business  or  trade  in  connection  with 
which  the  mark  is  used.  This  is  evident 
from  the  expressions  used  in  these  and  other 
English  cases.  Thus,  in  Ainsworth  v.  Walm- 
sley,  L.  R.  1  Eq.  518,  524,  Vice  Chancellor 
Sir  Wm.  Page  Wood  said:  "This  court  haa 
taken  upon  itself  to  protect  a  man  in  the  uad 
of  a  certain  trademark  as  applied  to  a  par- 
ticular description  of  article.  He  has  no 
property  in  that  mark  per  ae,  any  mora 
than  in  any  other  fanciful  denomination  ha 
may  assume  for  his  own  private  use,  other- 
wise than  with  reference  to  his  trade.  If 
he  does  not  carry  on  a  trade  in  iron,  but 
carries  on  a  trade  in  linen,  and  stampa  a 
lion  on  his  linen,  another  person  may  atamp 
a  lion  on  iron;  but  when  he  has  appropri- 
ated a  mark  to  a  particular  species  of  gooda» 
and  caused  his  goods  to  circulate  with  thia 
mark  upon  them,  the  court  has  said  that  no 
one  shall  be  at  liberty  to  defraud  that  maa 
by  using  that  mark,  and  passing  off  gooda 
of  his  manufacture  as  Ixing  the  gooda  of 
the  owner  of  that  mark?' 

In  short,  the  trademark  ia  treated  aa 
merely  a  protection  for  the  good  will,  and 
not  the  subject  of  property  except  in  ecm- 
nection  with  an  existing  business.  Tbo 
same  rule  prevails  generally  in  this  country, 
and  is  recognized  in  the  decisions  of  thia 
court  already  cited.  See  also  Apollinaria 
Co.  V.  Scherer,  23  Blatchf.  469,  27  Fed.  18» 
20;  Levy  v.  Waitt,  25  L.RJL  190,  10  a 
C.  A.  227,  21  U.  S.  App.  394,  61  Fed.  lOOQ, 
1011;  Macmahan  Pharmaeal  Co.  v.  Denvar 
Chemical  Mfg.  Co.  61  a  C.  A.  802,  118  Fad. 

140  V.  8* 


1915. 


HANOVER  STAR  MHUMG  CO.  v.  MBTGALF. 


414-417 


468,  471 »  475;  Congress  k  E.  Spring  Co. 
y.  High  Rock  Congress  Spring  Co.  57  Barb. 
526,  551;  Weston  v.  Ketcham,  51  How.  Pr. 
455,  456;  Candee  y.  Deere,  54  111.  439,  457; 
Ayerj  y.  Meikle,  81  Ky.  73,  86. 

[416]  Expressions  are  founil  in  many  of 
the  cases  to  the  effect  that  the  ezclusiye 
right  to  the  use  of  a  trademark  is  founded 
on  priority  of  appropriation.  Thus,  in  Dela- 
ware &  H.  Canal  Co.  y.  Clark,  IS  Wall. 
311,  323,  20  L.  ed.  581, 583,  reference  is  made 
to  "the  first  approprlator;"  in  McLean  y. 
Fleming,  96  U.  S.  245,  251,  24  L.  ed.  828, 
830,  to  "the  person  who  first  adopted  the 
stamp;"  in  Amoskeag  Mfg.  Co.  y.  Trainer, 
101  U.  S.  51,  53,  25  L.  ed.  993,  994,  the  ex- 
pression is  "any  symbol  or  deyise,  not  pre- 
viously appropriated,  which  will  distin- 
guish,** etc.  But  these  expressions  are  to 
be  understood  in  their  application  to  the 
facts  of  the  cases  decided.  In  the  ordinary 
case  of  parties  competing  under  the  same 
mark  in  the  same  market,  it  is  correct  to 
say  that  prior  appropriation  settles  the 
question.  But  where  two  parties  independ- 
ently are  employing  the  same  mark  upon 
goods  of  the  same  class,  but  in  separate 
markets  wholly  remote  the  one  from  the 
other,  the  question  of  prior  appropriation 
is  legally  insignificant;  unless,  at  least,  it 
appear  that  the  second  adopter  has  selected 
the  mark  with  some  design  inimical  to  the 
interests  of  the  first  user,  such  as  to  take 
the  benefit  of  the  reputation  of  his  goods, 
to  forestall  the  extension  of  his  trade,  or  the 
like. 

Of  course,  if  the  symbol  or  deyice  is  al- 
ready in  general  use,  employed  in  such  a 
manner  that  its  adoption  as  an  index  of 
source  or  origin  would  only  produce  con- 
fusion and  mislead  the  public,  it  is  not  sus- 
ceptible of  adoption  as  a  trademark.  Such 
a  case  was  Columbia  Mill  Co.  y.  Alcorn, 
150  U.  S.  460,  464,  37  L.  ed.  1144,  1146, 
14  Sup.  Ct.  Rep.  151,  affirming  40  Fed.  676. 
where  it  appeared  that  before  complainant's 
adoption  of  the  disputed  word  as  a  brand 
for  its  flour  the  same  word  was  used  for 
the  like  purpose  by  numerous  mills  in  dif- 
ferent parts  of  the  country. 

That  property  in  a  trademark  is  not  lim- 
ited in  its  enjoyment  by  territorial  boimds', 
but  may  be  asserted  and  protected  whereyer 
tha  law  affords  a  remedy  for  wrongs,  is  true 
in  a  limited  sense.  Into  whatever  markets 
tha  use  of  a  trademark  has  extended,  or 
its  meaning  has  become  [416]  known,  there 
will  the  manufacturer  or  trader  whose  trade 
is  pirated  by  an  infringing  use  be  entitled 
to  protection  and  redress.  But  this  is  not 
to  saj  that  the  proprietor  of  a  trademark, 
good  in  the  markets  where  it  has  been  em- 
plciyed,  can  monopolize  markets  that  his 
trade  has  neyer  reached,  and  where  the 
•P  Ii.  eO. 


mark  signifies  not  his  goods,  but  those  of  ' 
another.  We  agree  with  the  court  below 
(L.R.A.1916D,  136,  125  C.  C.  A.  515,  208 
Fed.  519)  that  "since  it  is  the  trade,  and 
not  the  mark,  that  is  to  be  protected,  a 
trademark  acknowledges  no  territorial 
boundaries  of  municipalities  or  states  or 
nations,  but  extends  to  eyery  market  where 
the  trader's  goods  haye  become  known  and 
identified  by  his  use  of  the  mark.  But  the 
mark,  of  itself,  cannot  travel  to  markets 
where  there  is  no  article  to  wear  the  badge  ' 
and  no  trader  to  offer  the  article." 

To  say  that  a  trademark  ri^t  is  not  lim- 
ited in  its  enjoyment  by  territorial  bounds 
is  inconsistent  with  saying  that  it  extends 
as  far  as  the  sovereignty  in  which  it  has 
been  enjoyed.  If  the  territorial  bounds  of 
sovereign^  do  not  limit,  how  can  they  en- 
large such  a  right?  And  if  the  mere  adop- 
tion and  use  of  a  trademark  in  a  limited 
market  shall  (without  statute)  create  an 
exclusive  ownership  of  the  mark  through- 
out the  bounds  of  the  sovereignty,  the  ques- 
tion at  once  arises,  "What  sovereignty  f 
So  far  as  the  proofs  disclose,  the  Allen  k 
Wlieeler  mark  has  not  been  used  at  all,  is 
not  known  at  all  in  a  market  sense,  within 
the  sovereignty  of  Alabama,  or  the  adja- 
cent states,  where  the  controversy  with  the 
Hanover  Star  Milling  Company  arose.  And 
so  far  as  the  controversy  concerns  intra- 
state distribution  as  distinguished  from  in- 
terstate trade,  the  subject  is  not  within 
the  sovereign  powers  of  the  United  States. 
Trade-Mark  Cases,  100  U.  8.  82,  93,  25  L. 
ed.  550,  551. 

We  are  referred  to  an  expression  con- 
tained in  the  opinion  of  this  court  in  Kidd 
V.  Johnson,  100  U.  S.  617,  619,  25  L.  ed. 
769,  770:  "The  right  to  use  the  trade- 
mark is  not  limited  to  any  place,  city,  or 
state,  and,  therefore,  must  be  deemed  [417] 
to  extend  everywhere."  But  a  reference  to 
the  facts  of  the  case,  and  the  context,  shows 
that  the  language  was  not  used  in  the  sense 
attributed  to  it  in  the  argument.  The  ques- 
tion presented  for  decision  related  to  the 
ownership  of  a  trademark  used  by  com- 
plainants (Johnson  &  Company),  on  padc- 
ages  and  barrels  containing  whisky,  manu- 
factured and  sold  by  them  in  Cincinnati, 
and  this  turned  in  part  upon  the  force  to 
be  given  to  a  written  transfer  executed  by 
one  Pike,  and  delivered  to  complainant's 
predecessors  in  business  in  connection  with 
a  sale  of  the  distillery  and  its  appurtenances, 
which  were  Pike's  individual  property. 
Kidd,  the  defendant,  claimed  the  right  to 
use  the  same  mark  as  surviving  partner  of 
a  firm  of  which  Pike  had  been  a  member. 
The  court,  speaking  by  Mr.  Justice  Field, 
said  (p.  619) :  "That  transfer  was  plain- 
ly designed  to  confer  what«^«t  xV^Xi  ^^^^ 


417--il0 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Ooi.  Tmmm, 


posaessed.  It,  in  termB,  extends  the  use  of 
the  trademark  to  Mills,  Johnson,  &  Com- 
pany and  their  successors.  Such  use,  to 
be  of  any  value,  must  necessarily  be  ex- 
clusive. If  others  also  could  use  it,  the 
trademark  would  be  of  no  service  in  dis- 
tinguishing the  whisky  of  the  manufacturer 
in  Cincinnati;  and  thus  the  company  would 
lose  all  the  benefit  arising  from  the  reputa- 
tion the  whisky  there  manufactured  had 
acquired  in  the  market.  The  right  to  use 
the  trademark  is  not  limited  to  any  place, 
city,  or  state,  and,  therefore,  must  be 
deemed  to  extend  everywhere."  This  does 
not  import  that  the  trademark  right  as- 
signed was  greater  in  extent  than  the  trade 
in  which  it  was  used.  The  record  in  the 
case  showed  that  complainant's  trade  had 
been  extended  to  New  Orleans,  and  the  con- 
troversy arose  out  of  sales  made  there  by  de- 
fendants as  licensees  of  Kidd.  It  was  ad- 
mitted in  the  answer  that  they  had  sold 
whisky  in  competition  with  that  of  com- 
plainants at  New  Orleans,  and  under  the 
same  trademark,  and  the  case  was  by  stipu- 
lation treated  as  a  test  case  to  settle  wheth- 
er Johnson  •  &  Company  or  Kidd  had  the 
[418]  exclusive  right,  or  whether  they  had 
A  joint  right,  to  the  use  of  the  mark. 

We  are  also  referred  to  Derringer  v.  Plate, 
29  Cal.  292,  295,  87  Am.  Dee.  170,  in  which 
it  was  said  by  the  court:  "The  manufac- 
turer at  Philadelphia  who  has  adopted  and 
uses  a  trademark,  has  the  same  right  of 
property  in  it  at  New  York  or  San  Fran- 
cisco that  he  has  at  his  place  of  manufac- 
ture." In  tliat  case  plaintiff  averred  that 
he  was  a  resident  of  Philadelphia,  and  up- 
wards of  tliirty  years  before  the  action  in- 
vented a  pistol  and  adopted  as  a  trademark 
for  it  the  words  ''Derringer,  Philadel.," 
which  was  and  ever  since  had  been  his 
trademark,  and  which  he  had  caused  to  be 
stamped  on  the  breech  of  all  pistols  manu- 
factured and  sold  by  him;  and  that  the  de- 
fendant since  1858  had  been  engaged  in  the 
manufacture  of  pistols  at  San  Francisco 
similar  to  plaintiff's,  on  the  breech  of  which 
he  had  stamped  plaintiff's  trademark,  etc. 
The  report  of  the  case  shows  (p.  294)  that 
the  only  question  presented  was  whether 
the  California  statute  of  1863  concerning 
trademarks  had  repealed  or  abrogated  the 
remedies  afforded  by  the  common  law  in 
trademark  casei.  This  was  answered  in 
the  negative,  and  in  the  course  of  the  reason- 
ing the  court  said,  p.  295:  "The  right  is 
not  limited  in  its  enjoyment  by  territorial 
bounds,  but,  subject  only  to  such  statutory 
regulations  as  may  be  properly  made  con- 
cerning the  use  and  enjoyment  of  other 
property,  or  the  evidences  of  title  to  the 
same,  the  proprietor  may  assert  and  main- 
tmJn  Mb  property  right  wherever  the  com- 
7S0 


mon  law  affords  remedies  for  wrongs;"  eon- 
tinning  with  what  we  have  first  quoted. 
Although  not  expressly  stated,  it  is  impUelt 
in  the  report  that  plaintiff's  pistols  were 
on  the  market  in  San  Francisco,  and  hii 
trademark  known  there  and  imitated  by  de- 
fendant for  that  very  reason.  It  was  sueh 
a  mark  as  could  not  be  accidentally  hit 
upon. 

It  results  from  the  general  principles  thm 
far  discussed  that  trademark  rights,  like 
others  that  rest  in  user,  may  [419]  be  loel 
by  abandonment,  nonuser,  laches,  or  acquiee- 
cence.  Abandonment,  in  the  strict 
rests  upon  an  intent  to  abandon;  and 
have  no  purpose  to  qualify  the  authority  of 
Saxlehner  v.  Eisner  &  M.  Co.  179  U.  S.  19, 
31,  45  L.  ed.  60,  73,  21  Sup.  Ct.  Rep.  7»  to 
that  effect.  As  to  laches  and  acquiescesesb 
it  has  been  repeatedly  held,  in  cases  where 

^defendants  acted  fraudulently  or  with  knowl- 
edge of  plaintiffs'  rights,  that  relief  by  in- 
junction would  be  accorded  although  aa 
accounting  of  profits  should  be  denied.    Ho- 

I  Lean  v.  Fleming,  96  U.  S.  245,  257,  24  h. 
ed.  828,  833;  Menendez  v.  Holt,  128  U.  8. 
514,  523,  32  L.  ed.  526,  528,  9  Sup.  Ct.  Rep. 
143;  Saxlehner  v.  Eisner  &  M.  Co.  179  U. 
S.  19,  30,  45  L.  ed.  60,  76,  21  Sup.  Ct.  Rep. 
7.  So  much  must  be  regarded  as  settled. 
But  cases  differ  according  to  their  circum- 
stances, and  neither  of  those  cited  is  in 
point  with  the  present.  Allowing  to  the 
Allen  &  Wheeler  firm  and  corporation  the 
utmost  that  the  proofs  disclose  in  their 
favor,  they  have  confined  their  use  of  the 
"Tea  Rose"  trademark  to  a  limited  terri- 
tory, leaving  the  southeastern  states  un- 
touched. Even  if  they  did  not  know — and 
it  does  not  appear  that  they  did  kno1l^— 
that  the  Hanover  Company  was  doing  eo^ 
they  must  be  held  to  have  taken  the  riik 
that  some  innocent  party  might,  during  their 
forty  years  of  inactivity,  hit  upon  the  same 
mark  and  expend  money  and  effort  in  build- 
ing up  a  trade  in  fiour  under  it.  If,  during 
the  long  period  that  has  elapsed  since  tlie 
last  specified  sale  of  Allen  k  Wheeler  '^ea 
Rose"— this  was  "in  the  later  70V'— that 
flour  has  been  sold  in  other  parts  of  the 
United  States,  excluding  the  southeastern 

states,  no  clearer  evidence  of  abandonment 
by  nonuser  of  trademark  rights  in  the  latter 
field  could  reasonably  be  asked  for.  And 
when  it  appears,  as  it  does,  that  the  Han- 
over Company  in  good  faith  and  withoot 
notice  of  the  Allen  &  Wheeler  mark  has  ex- 
pended much  money  and  effort  in  building 
up  its  trade  in  the  southeastern  market,  eo 
that  "Tea  Rose"  there  means  Hanover  Oom- 
pany's  fiour  and  nothing  else,  the  Allen  4 
Wheeler  Company  is  estopped  to  aaesri 
trademark  infringement  as  to  that  terri- 
tory. 

140  17.  «• 


1015. 


HANOVER  STAR  MILLING  00.  t.  MBTOACF. 


420-422 


[4S0]  The  extent  and  character  of  that 
territory,  and  its  remoteness  from  that  in 
which  the  Allen  &  Wheeler  mark  is  known, 
are  eircumstances  to  be  considered.  Ala- 
bama alone — to  say  nothing  of  the  other 
states  in  question — has  an  area  of  over  50,- 
000  square  miles,  and  by  the  census  of  1910 
contained  a  population  of  more  than  2,000,- 
000.  Its  most  northerly  point  is  more  than 
250  miles  south  of  Cincinnati,  which  is  the 
nearest  piiiit  at  which  sales  of  Allen  k 
Wheeler  *Tea  Rose"  are  shown  to  have  been 
made,  and  these  at  a  time  antedating  by  ap- 
proximately forty  years  the  commencement 
of  the  present  controversy.  We  are  not  deal- 
ing with  a  case  where  the  junior  appropria- 
tion of  a  trademark  is  occupying  territory 
that  would  probably  be  reached  by  the 
prior  user  in  the  natural  expansion  of  his 
trade,  and  need  pass  no  judgment  upon  such 
a  case.  Under  the  circumstances  that  are 
here  presented,  to  permit  the  Allen  & 
Wheeler  Company  to  use  the  mark  in  Ala- 
bama, to  the  exclusion  of  the  Hanover  Com- 
pany, would  take  the  trade  and  good  will 
of  the  latter  company — built  up  at  much 
expense  and  without  notice  of  the  former's 
rights — and  confer  it  upon  the  former,  to 
the  complete  perversion  of  the  proper  theory 
of  trademark  rights. 

The  case  is  peculiar  in  its  facts;  and  we 
have  found  none  precisely  like  it.  The  re- 
cent case  of  Theodore  Rectanus  Co.  v.  Unit- 
ed Drug  Co.  (C.  C.  A.  6th  C.)  226  Fed.  545, 
549,  553,  is  closely  analogous. 

We  come  now  to  No.  23.  The  court  of 
appeals  (122  C.  C.  A.  483,  204  Fed.  211) 
denied  relief  to  the  Hanover  Company 
against  Metcalf  under  the  head  of  trade- 
mark infringement  partly  upon  the  ground 
that  Allen  &  Wheeler  were  the  first  appro- 
priators  of  the  mark,  and  that  it  had  been 
continuously  used  by  that  firm  and  its  suc- 
cessor down  to  the  time  of  the  suit,  but 
principally  upon  the  ground  that,  irrespec- 
tive of  whether  this  use  was  so  general  or 
continuous  as  to  exclude  other  appropria- 
tions, the  evidence  [421]  showed  a  use  of 
the  same  brand  by  the  Steeleville  Company 
commencing  in  the  year  1805,  and  carried  on 
in  the  states  of  Illinois,  Tennessee,  Ipdiana, 
Arkansas,  and  Mississippi,  with  occasional 
shipments  into  Alabama, — a  use  so  exten- 
sive and  continuous  as  to  exclude  the  claim 
of  the  Hanover  Company  to  either  first  ap- 
propriation or  exclusive  use  in  any  of  the 
territory  from  which  it  sought  to  expel 
Metcalf;  and  that  ''the  Steeleville  Milling 
Company's  first  use  and  its  extensive  and 
continuous  use  established  by  the  evidence 
in  the  territory  of  its  selection  gave  it  the 
unqualified  right  to  extend  unhampered  its 
trade  in  flour  imder  the  Tea  Rose  brand  in- 
to any  part  of  the  United  States,  and  that. 


too,  without  incurring  the  legal  odium  of 
unfair  competition."  Relief  under  the  head 
of  unfair  competition  was  denied  upon  the 
ground  that  the  Hanover  Company  had  not 
clearly  shown  that  it  had  established  by 
prior  adoption  the  exclusive  right  to  dreaa 
its  goods  in  the  manner  claimed. 

Upon  the  question  of  trademark  rights  as 
between  the  Hanover  and  the  Steeleville 
companies  (leaving  Allen  &  Wheeler  out  of 
the  question),  the  proofs  are  somewhat  con- 
flicting. There  is  evidence  that  Hanover's 
use  of  the  Tea  Rose  brand  antedated  the 
year  1803,  and  probably  began  as  early  as 
1886.  The  extent  and  particulars  of  such 
use,  prior  to  the  year  1003,  are  not  made  to 
appear.  On  the  other  hand,  Steeleville  ap- 
pears  to  have  adopted  the  brand  in  the  year 
1805,  and  used  it  in  trade  in  Illinois,  Ten- 
nessee, Mississippi,  Louisiana,  and  Arkan- 
sas; the  extent  and  particulari  of  the  use 
not  being  shown.  Sharp  competition  ap- 
pears to  have  been  carried  on  between  the 
two  companies  in  selling  flour  under  the 
Tea  Rose  brand  at  Meridian,  Mississippi, 
in  the  years  1903  to  1905,  with  the  result 
that  the  Hanover  Company,  claiming  that 
its  use  of  the  mark  for  flour  had  antedated 
that  of  the  Steeleville  Company,  succeeded 
in  obtaining  a  favorable  decision  in  an  in- 
formal arbitration  by  officials  of  the  Millers 
[422]  National  Federation;  and  for  this  or 
some  other  reason  Steeleville  appears  to 
have  retired  and  left  the  Hanover  Company 
in  complete  control  of  the  Meridian  market. 
Aside  from  the  business  done  by  the  Steele- 
ville Company  at  Meridian,  there  is  no 
proof  of  business  done  by  it  in  the  south- 
eastern states,  except  that  it  made  an  iso- 
lated sale  of  Tea  Rose  flour  to  a  merchant 
at  Whistler,  Alabama,  in  the  year  1809,  the 
quantity  not  stated,  and  two  isolated  sales, 
involving  a  small  quantity  in  each  case,  one 
to  a  retailer  in  Tupelo,  Mississippi,  in  the 
year  1910,  the  other  to  a  retailer  in  Weat 
Point,  Mississippi,  in  January,  1912. 

As  we  regard  the  proofs,  they  do  not  sus- 
tain the  view  of  the  circuit  court  of  appeals 
for  the  fifth  circuit  either  as  to  first  use 
or  as  to  extensive,  continuous,  or  exclusive 
use  of  the  Tea  Rose  brand  by  the  Steele- 
ville Company,  and  there  is  nothing  in  the 
history  of  the  use  of  the  brand  in  the  dis- 
puted territory  to  deprive  the  Hanover  Com- 
pany of  its  right  to  be  protected  at  least 
against  unfair  competition  at  the  hands  of 
the  Steeleville  Company  or  of  Metcalf  aa  its 
representative. 

That  there  was  such  unfair  competition, 
commenced  by  Metcalf  •  shortly  before  the 
bringing  of  the  suit,  the  proofs  clearly  show. 
Repeating  that  since  the  year  1904  the  Han- 
over Company  had  extensively  advertised  its 
Tea  Rose  flour  throughout  the  ata^A  ^  KSar 


•0  li.  ed. 


46 


422-426 


8UPREMB  CX)URT  OF  THB  UNITED  8TATSS. 


Oct.  Tibm, 


bama  and  parts  of  MUsissippi,  Georgia,  and 
Florida,  with  the  result  that  its  sales  of 
that  flour  in  those  markets  amounted  to 
more  than  $150,000  a  year,  while  the  Han- 
oyer  Star  Milling  Company  had  come  to  be 
known  as  the  Tea  Rose  mill,  and  the  words 
"Tea  Rose"  in  the  flour  trade  in  that  terri- 
tory meant  flour  of  the  Hanover  Company's 
manufacture  and  nothing  else,  and  that,  ex- 
cept for  isolated  sales  in  Mississippi  in  1910 
and  1912,  already  mentioned,  no  Tea  Rose 
flour  other  than  that  of  the  Hanover  Com- 
pany had  been  sold  in  that  territory  for  a 
number  of  [423]  years,  it  further  should  be 
stated  that  Hanover  Tea  Rose  was  distrib- 
uted in  Butler  County  and  adjoining  coun- 
ties, in  Alabama  by  the  McMullan  Grocery 
Company,  whose  place  of  business  was  at 
Greenville.  They  had  built  up  a  large  trade 
for  this  flour  in  Butler  county  and  the 
neighboring  counties  of  Conecuh,  Covington, 
Lowndes,  and  Crenshaw.  The  McMullan 
Company  had  the  exclusive  sale  of  the  Han- 
over Company's  Tea  Rose  flour,  so  that 
Metcalf,  who  likewise  did  business  at  Green- 
ville, was  unable  to  procure  it  for  distri- 
bution to  his  customers.  A  short  time  be- 
fore the  suit  was  commenced,  however,  he 
announced  to  the  public  and  the  trade  in 
Butler  county  that  he  had  secured  Tea  Rose 
flour,  and  on  receiving  a  consignment  from 
the  Steeleville  Company,  which  was  labeled 
"Tea  Rose"  and  put  up  in  packages  closely 
resembling  those  used  by  the  Hanover  Com- 
pany,— so  closely  that,  according  to  the 
undisputed  evidence,  they  are  "calculated  to 
and  do  in  fact  deceive  the  ordinary  and 
.casual  purchaser  of  flour  into  the  belief  that 
he  is  purchasing  the  article  of  that  name 
manufactured  by  the  said  Hanover  Star 
Milling  Company," — Metcalf  put  large  ban- 
ners on  his  mules  and  dray,  advertising  to 
the  public  that  he  had  received  a  shipment 
of  Tea  Rose  flour,  and  that  it  was  "Steele- 
ville Milling  Company's  Tea  Rose  flour,  best 
quality."  Metcalf  and  his  traveling  sales- 
man who  marketed  the  greater  part  of  this 
consignment,  and  several  parties  who  pur- 
chased it  in  lots  of  from  one  to  ten  bar- 
rels, deposed  that  it  was  not  sold  under 
a  representation  that  it  was  manufactured 
by  the  Hanover  Company,  but,  on  the  con- 
trary, thut  it  was  Tea  Rose  flour  manufac- 
tured by  the  Steeleville  Milling  Company. 
But  Metcalf's  purpose  to  take  advantage 
of  the  reputation  of  the  Hanover  Company's 
Tea  Rose  flour  is  so  manifest,  and  the  tend- 
ency of  the  similarity  of  the  brand  and  ac- 
companying design,  and  of  the  make-up  of 
the  packages,  to  mislead  ultimate  consumers, 
is  so  evident,  that  it  seems  to  [4S4]  us  a 
case  of  unfair  competition  is  made  out.  The 
circumstances  strongly  indicate  a  fraudu- 
lent intent  to  palm  <^  the  Steeleville  Tea 
722 


Rose  flour  upon  customers  as  being  the  same 
as  the  Tea  Rose  flour  made  by  oomplainantr 
the  reputation  of  which  is  shown  to  be  so 
well  established.  The  mere  substitution  of 
"Steeleville"  in  the  place  of  "Hanover"  on 
the  labels  is  not  convincing  either  that  the 
intent  is  innocent  or  that  the  result  will 
be  innocuous,  since  it  is  accompanied  with 
the  words  "Tea  Rose"  (shown  to  have  ac- 
quired a  secondary  meaning),  and  with  the 
distinctive  wrapping,  both  indicative  in  that 
market  of  complainant's  flour.  Complain- 
ant is  thus  shown  to  be  entitled  to  an  in- 
junction against  Metcalf,  irrespective  of  its 
claim  to  affirmative  trademark  rights  in 
that  territory.  Coats  v.  Merrick  Thread 
Co.  149  U.  S.  562,  666,  37  L.  ed,  847,  850, 
13  Sup.  Ct.  Rep.- 966;  Elgin  Nat.  Watch 
Co.  V.  lUinois  Watch  Case  Co.  179  U.  S. 
665,  674,  45  L.  ed.  365,  379,  21  Sup.  Ct. 
Rep.  270.  Adjudication  of  the  latter  claim 
may  be  made,  if  necessary,  upon  final  hear- 
ing, when  the  proofs  will  presumably  be 
more  complete  than  they  now  are. 

It  results  that  the  decree  under  review 
in  No.  23  should  be  reversed,  and  the  cause 
remanded  for  further  proceedings  in  con- 
formity with  this  opinion,  and  that  the 
decree  in  No.  30  should  be  affirmed. 

Decree  in  No.  23  reversed. 

Appeal  in  No.  30  dismissed. 

Decree  in  No.  30  affirmed. 

Mr.  Justice  Holmes,  concurring: 
I  am  disposed  to  agree  that  the  decree 
dismissing  the  bill  of  the  Hanover  SUr  Mill- 
ing Company  should  be  reversed  and  that 
the  decree  denying  a  preliminary  injunction 
to  the  Allen  &  Wheeler  Company  should  be 
affirmed,  and  I  agree  in  the  main  with  the 
reasoning  of  the  court,  so  far  as  it  goes. 
But  I  think  it  necessary  to  go  farther  even 
on  the  assumption  that  we  are  dealing  with 
[425]  the  question  of  trademarks  in  the 
several  states  only  so  far  as  commerce 
among  the  states  is  not  concerned.  The  ques- 
tion before  us,  on  that  assumption,  is  a 
question  of  state  law,  since  the  rights  that 
we  are  considering  are  conferred  by  the  sov- 
ereignty of  the  state  in  which  they  are  ac- 
quired. This  seems  to  be  too  obvious  to  need 
the  citation  of  authority,  but  it  is  a  neces- 
sary corollary  of  the  Trade-Mark  Cases,  100 
U.  S.  82,  25  L.  ed.  550.  Those  cases  decided 
that  Congress  cannot  deal  with  trademarks 
as  used  in  commerce  wholly  between  citizens 
of  the  same  state.  It  follows  that  the  sUtee 
can  deal  with  them,  as  in  fact  they  some- 
times do  by  statute  (Mass.  Rev.  Laws,  chap. 
72,  §§  2,  3),  and  when  not  by  statute  1^ 
their  common  law. 

Ai  the  common  law  of  the  several  states 
has  the  same  origin  for  the  most  part,  and 
as  their  law  concerning  trademarks  and  un- 

S40  U.   8. 


1915. 


EATON  V.  BOSTON  SAFE  DEPOSIT  A  T.  CX). 


425-427 


lair  eompetition  Is  the  same  in  its  general 
features,  it  is  natural  and  very  generally 
correct  to  say  that  trademar]c8  acknowledge 
no  territorial  limits.  Buyit  never  should 
be  forgotten,  and  in  this  caRTlt  is  important 
to  remember,  that  when  a  trademark  started 
In  one  state  is  recognized  in  another  it  is 
by  the  authority  of  a  new  sovereignty  that 
gives  its  sanction  to  the  right.  The  new 
sovereignty  Is  not  a  passive  figurehead.  It 
creates  the  right  within  its  jurisdiction,  and 
what  it  creates  it  may  condition,  as  by  re- 
quiring the  mark  to  be  recorded,  or  it  may 
deny.  The  question,  then,  is  what  is  the 
common  law  of  Alabama  in  cases  like  these. 
It  appears  to  me  that  if  a  mark  previously 
unknown  in  that  state  has  been  used  and 
given  a  reputation  there,  the  state  well  ihay 
say  that  tiiose  who  have  spent  their  money 
innocently  in  giving  it  its  local  value  are 
not  to  be  defeated  by  proof  that  others  have 
used  the  mark  earlier  in  another  jurisdic- 
tion more  or  less  remote  Until  I  am  com- 
pelled to  adopt  a  diffeient  view  I  shall  as- 
sume that  that  is  the  common  law  of  the 
state.  It  appears  to  me  that  the  founda- 
tion of  the  right  as  stated  by  the  court  re- 
quires that  conclusion.  See,  [426]  further, 
Chadwick  v.  Oovell,  151  Mass.  100,  103,  104, 
d  L.ILA.  830,  21  Am.  St.  Rep.  442,  23  N.  E. 
1068.  Those  who  have  used  the  mark  with- 
in the  state  are  those  who  will  be  defraud- 
ed if  another  can  come  in  and  reap  the 
reward  of  their  efforts  on  the  strength  of  a 
use  elsewhere  over  which  Alabama  has  no 
control. 

I  think  state  lines,  speaking  always  of 
matters  outside  the  authority  of  Congress, 
are  important  in  another  way.  I  do  not  be- 
lieTe  that  a  trademark  established  in  Chi- 
cago could  be  used  by  a  competitor  in 
some  other  part  of  Illinois  on  die  ground 
that  it  was  not  known  there.  I  think  that 
If  it  is  good  in  one  part  of  the  state,  it  is 
good  in  all.  But  when  it  seeks  to  pass  state 
lines,  it  may  find  itself  limited  by  what  has 
been  done  under  the  sanction  of  a  power 
co-ordinate  with  that  of  Illinois  and  para- 
mount over  the  territory  concerned.  If 
this  view  be  adopted  we  get  rid  of  all  ques- 
tions of  penumbra,  of  shadowy  marches 
where  it  is  difiicult  to  decide  whether  the 
business  extends  to  them.  We  have  sharp 
lines  drawn  upon  the  fundamental  consid- 
eration of  the  jurisdiction  originating  the 
right.  In  most  cases  the  change  of  juris- 
diction will  not  be  important  because  the 
new  law  will  take  up  and  apply  the  same 
principles  at  the  old;  but  when,  as  here, 
justice  to  its  own  people  requirea  a  state  to 
set  a  limit,  it  may  do  so,  and  this  court 
cannot  pronounce  its  action  wrong. 
•0  Id,  ed. 


[427]  JOHN  E.  EATON,  Trustee  in  Bank- 
ruptcy of  the  Estate  of  Fannie  Leighton 
Luke,  Plff.  in  Err., 


V. 


BOSTON  SAFE  DEPOSIT  k  TRUST  COM- 
PANY, Trustee  under  the  Will  of  John 
W.  Leiffhton,  Deceased,  and  Fannie  Leigh- 
ton  Luke. 

(See  S.  C.  Reporter's  ed.  427-420.) 

Bankruptoj  —  assets  —  spendthrlfi 
trust. 

The  equitable  life  interest  of  the  bene- 
ficiary in  a  trust  created  by  a  bequest  of 
a  fund  to  a  trustee  to  pay  the  entire  net 
income  thereof  to  the  beneficiary  for  life 
"free  from  the  interference  or  control  of  her 
creditors"  did  not  pass  to  her  trustee  in 
bankruptcy,  under  the  bankrupt  act  of  July 
1,  1808  (30  Stat,  at  L.  566,  chap.  541, 
Comp.  Stat.  1013,  §  0654),  §  70a  (5),  vest- 
ing in  the  trustee  all  propertv  that  the 
bankrupt  "could  by  anv  means  have  trans- 
ferred,'' where  the  local  law  treats  such  re- 
strictions against  interference  or  control  by 
creditors  as  limiting  the  character  of  the 
equitable  property,  and  inherent  in  it. 
[For  other  cases,  see  Bankruptcy,  VI.  a*  In 
Digest  Sup.  Ct.  1008.] 

[No.  466.] 

Submitted  February  28,  1016.     Decided 
March  13,  1016. 

IN  ERROR  to  the  Supreme  Judicial  Court 
of  the  State  of  Massachusetts  to  review 
a  judgment  which,  on  a  petition  by  a  testa- 
mentary trustee  for  instructions,  adjudged 
that  the  equitable  life  interest  of  the  cestui 
que  trust  did  not  pass  to  her  trustee  in 
bankruptcy.     Affirmed. 

See  same  case  below,  220  Mass.  484, 
LJLA.  — ,  — ,  108  N.  E.  64. 

The  facts  are  stated  in  the  opinion. 

Mr.  Gilbert  B.  Kemp  submitted  the 
cause  for  plaintiff  in  error. 

The  life  estate  of  the  bankrupt  was  of 
such  a  character  as  to  pass  to  the  trustee 
in  bankruptcy. 

CoUier,  Bankr.  10th  ed.  1014,  pp.  1004, 
1005;  1  Loveland,  Bankr.  p.  823;  Clark  t. 
Williams,  100  Mass.  210,  76  N.  E.  723; 
Remington,  Bankr.  2d  ed.  |S  066,  072;  Re 
Jersey  Island  Packing  Co.  2  L.RJ^.(N.S.) 
560,  71  C.  C.  A.  75,  138  Fed.  625. 

The  trustee  in  bankruptcy  is  not  a  cred- 
itor. 

Masten  t.  Amerman,  51  Hun,  244,  4  N.  T. 
Supp.  681;  Collier,  Bankr.  10th  ed.  pp.  1002, 
1003;  Cowan  t.  Burchfield,  180  Fed.  614; 
Re  Rodgers,  60  C.  C.  A.  567,  125  Fed.  168; 
Re  Burnett,  201  Fed.  162;  Zartman  t.  First 
Nat.  Bank,  216  U.  S.  134,  54  L.  ed.  418,  30 
*6up.  Ot  Rep.  368;  Thompsmi  ▼.  Fairhanka. 


SUPREME  COUBT  OF  THE  UNITED  STATES.  Oos.  TmM, 

IM  U.  S.  SIS,  49  L.  ed.  5TT,  25  Sup.  Ct.  latent.    If  nch  m  inUnt  ii  ifaowB,  aueh  a 

Rep.  306.  triut  ii  kt  once  cre&ted. 

Courta  have  not  the  power  to  legiiUte,  Broadwajr  Nat.  Bank  r.  Adama,  13S  Maai. 

and   can   no   more   add   an    exemption    not  170,   43   Am.   Rep.   504;   Niekaraon  v.   Van 

itirlj  within  the  itatute  than  they  can  take  Hora,  181  Sloaa  562,  M  N.  E.  204;   Baker 

from  the  aUtutc.  r.   Brown,   146   Mau.   371,   IS   N.   E.   703; 

Re  Gerber,  lOB  C.  C.  A.  511,  1B6  Fed.  6B3;  Sanger   v.   Bourke,  209  Mau.   461,  4S6,  96 

Remington,  Bankr.  2d  ed.  1077.  N.  E.  864. 

So  tar  SB  the  elTect  of  the  decision  of  the  No    particular    term*    or    tecbnioal    Ian- 

Uaaaachuaetta  court   in   the  case  at  bar  Is  ^age  is  neeeaaaij. 

eoneidered  as  eatablishing  a   rule   of   prop-  Baker  v.  Brown,  140  Maas.  STl,  IS  N.  B. 

trty,  it  should  be  borne  in  mind  that  thia  783;  Berry  t.  Dunham,  202  Mass.  1S9,  88 

decision  was  given  contrary  to  the  txpreas  N.  E.  B04. 

terms  of,  and  during  the  operation  of,  the  The  estate  in  quettion  in  this  ckm   ia  a 

prasent  bankrupt  law;   and  under  luch  cir-  spendthrift  trust.     As  such.  It  has  all  the 

ownstances  a  new  rule  of  property  cannot  incidents  of  this  limited  Mtate;  for  cxain|tle: 

bm  created.  (1)    It  cunnot  be  appropriated  bf  cred- 

B*  Oerber,  supra.  itors. 

Tha   state   court   has   not   construed   the  Broadway  Nat.  Bank  r.  Adams,  183  Hasi. 

proriilofls  of   auy   exemption   law   of   the  170,  43  Am.  Sep.  504. 

state.     It  has  merely  asserted  what  It  re-  (2)   It  cannot  be  reached  by  an  assignee 

gards  as  a  declaration  or  principle  of  law.  in  insolvency. 

TUl  court  is  not  bound,  however,  by  rules  Billings    t.    Uarsh,    153    Mass.    Sll,    ID 

«f  procedure,  to  foUaw  the  state  court's  de-  L.R.A.  704,  25  Am.  St.  Rep.  0311,  2S  N.  £. 

aisi<m.  1000. 

Remingtoo,  Bankr.   2d  ed.  |   1043;   Page  (3)  It  does  not  pass  to  a  trustae  In  baak- 

▼.  Edmunds,  187  U.  S.  506,  47  L.  ed.  31S,  ruptcy. 

SS  Sup.  Ct.  Rep.  200;  Re  Gerber,  supra.  Spindle  v.  Shreve,  9  Bias.  199,  4  Fad.  13S; 

The  rights  of  a  bankrupt  to  property  as  Re  McKay,  143  Fed.  671;  Munroe  v.  tlewey, 

exempt  are   those  given   him   by   the   state  176   Mass.    184,   79   Am.   St.   Rep.   S04,   67 

statutes.  N.  E.  340. 

Smalley  t.  Laugenour,   196  U.  S.  93,  97,  That  an  equitable  esUte  can  be  created 

49  L.  ed.  400,  401,  25  Sup.  Ct.  Bcp.  216;  that  will  be  free  from  the  interference  or 

Blcbardson  v.  Woodward,  44  C.  C.  A.  235,  control  of  creditors  is  set  forth  in  the  fol- 

IM  Fed.  873.  lowing  cases: 

If,     ii..„«.j     tw     n  „-.,_    ...i,    ■..  J  Nichols  V.  Eaton,  91  U.  8.  716,  23  L.  ed. 

Mr.    Raymond    H.    Oveson    subm.tUd  254;  Hyde  v.  Wood^,  »4  U.  S.  623,  24  L.  ed. 

»  cause  for  defendants  m  error.     Messrs.  g^^;   p^^^^^  ,    ^^^    j^^  „    ^- ^^^    „„ 


JT.T-  T"*^"  "^  ^'""'**  °"'  ""'  35  L.  ed.  721,  733,  11  Sup.  Ct  Rep.  1005; 

T*  r      .!ij  1        ■     vt  L     ^.     ...   .  Shclton   v.  King,   229  U.   S.   90,   57   L.   ed. 

It  is  settled  law  ,n  Massachuset  a  that  .  33  ^  ^^ 

do«or  may,  ,n  crea  .ng  an  equ.tah  e  estate.        j^  .^  ^^^/^  ^^^^      ^^^^  ^,  ^^^  bankruptcy 
eaire  out  and  create  such  equitable  nehts        ,  .1      .,    .  Ti     ._    .         •  .t     1.     , 

,  .  ...  ...  ,1.  act  provides  that  the  trustee  of  the  bank- 

In  property  as  his  fancy  may  dictate,  with-  .     t  u   1,  .  j      -.i    .i.     .1.1       i  .1. 

/     '^      i    ,      ..         .  1.      ■'        .   .   t         .  rupt  shall   be   vested  with  the  title  of  the 
out   reEBrd   to   the   riehts   apiiertaininK   to  ,      ,  .  .  ,  -,  ,     . 
..                 ,       .  ,      I              ,    '.>.     ,       "  ,,  bankrupt,  except  in  ao  far  as  it  is  to  prop- 
the  several  estates  known  to  the  law.     He                          ,  ■  \.   ,  ■          1-.         >. 
_                          i-fl  J  ■   .        .        J  ..          .   ■  erty  over  which  his  creditors  haTe  no  con- 
ma*  give  a  quatined  inturest,  and  the  cestui  .     ,      .■-.    .          .     .  ■  ■  _.     ,        ..^ 

'  ?     .    ^     .  ■  i       .     .1.      ..  trol.     What  part  of  hie  property  ia  with- 

que   trust  acquires   no   interest   other   than  ,  ,         .f  1.    j        j-^        ■  ^ 

?,       .   .  .,     ,.^  ..    .  ,  J  .      ,.     ,  drawn  from  the  reach  of  creditors  i*  a  qnes- 

tbe  strictly  limited  one  created  by  the  terms  ..         ....         ,  .,       .  ^    i.     ■       -   _-ji 

fj  t},     ,       t  -  "    J  <■  (,g„  ^f  (]i^.  [^„  Qf  |.|,g  gtite  having  jansdie- 

D«^n  '"li.b„„,  188  M.«.  142,  S)  N.  E.  "  H'-:!;K'.V'„r™    NMow"!*^  E  WJL 

JK,  H.I.  ».  Boil.,,  216  Uu..  I5i,  102  ..f.'.'f  i    1'  ?  f J  ,  ■.^™   S 

N   K    A1K  '  oSo;   apindle  v.  obrere,  111 

'.  ■  *"■    „    ,  ..  ...        ,        ,  U.  8.  542,  28  L.  ed.  512,  4  Sup.  Ct.  Rep.  SO. 

A.  a  result  of  the  recognition  of  suel.  a       ^^  j.^^^^j  ^^^  introduce!,  no  new  class 

fr«   .      t  ■»«'">'.   the   doctrine   of   spend-  ^,  „^i,„„,   „„,   ^„,  it     i„  ^  creditors 

thrift   trust*   has   developed   in    Masaachu-  .         ■   u.       _■     i  .i.     .., .._  j 

..  ,     ,         ,        .      "^  ..  .    .  any  greater  rights  against  the  property  of 

•ttta    mnd    in    almost    every    other    state.  ^^^^  j^^tor  than  they  have  under  the  lUto 

Under  this  doctrine  it  is  compeUnt  for  a  law,  except  in  cases  of  preferences  and  fraud. 


a  create  a  trust  estate  for  the  life 


«<  the  cestui  que  trust,  with  a  proviso  that  Hanover  Nat.  Bank  t.  Moysea,  ISA  U.  8. 

the  said  interest  of  the  cestui  que  trust  igi,  46  L.  ed.  1113,  22  Sup.  Ct  Rsp.  867; 

Aftll   be  beyond  the  control   of  creditors.  Re  Cohn,  171  Fed.  568;  Holden  t.  Strattoo, 

The  question  of  whether  a  spendthrift  trust  lOS  U.  S.  202,  49  L.  ed.  1018,  fiS  Sup!  Ct 

ir  created  depends  solely  upon  the  testator's  Rep.  666 ;  Norcross  v.  Nathan,  99  Fed.  414. 

r»4  140  U.  B. 


1916. 


EATON  V.  BOSTON  SAFE  DEPOSIT  k  T,  CO. 


427-429 


Courts  of  other  states  which  have  de- 
^oped  the  doctrine  of  spendthrift  trusts 
along  the  same  lines  as  Massachusetts  has, 
hold  that  such  an  estate  is  not  assignahle, 
even  though  that  is  not  expressly  stipu- 
lated, as  that  would  prevent  the  object  of 
the  testator  from  being  carried  out. 

Bennett  v.  Bennett,  217  111.  434,  4  LJI.A. 
(N.S.)  470,  76  N.  £.  339;  Re  Mehaffej,  139 
Pa.  276,  20  Atl.  1056. 

To  give  the  beneficiary  power  to  assign 
her  interest  would  necessitate  the  implica- 
tion of  the  power  on  her  part  to  defeat  the 
purpose  clearly  expressed  in  the  will. 

Perkins  v.  Hays,  3  Gray,  410. 

Even  had  the  testator  provided  that  the 
interest  of  the  cestui  que  trust  was  to  be 
assignable  by  her  voluntary  act,  as  well  as 
being  beyond  the  control  of  creditors,  then 
if  these  are  inconsistent,  and  if  it  must  be 
nonassignable  in  order  to  be  beyond  the 
reach  of  creditors,  the  court  would  have  to 
pick  out  one  of  these  objects  and  sacrifice 
the  other. 

Malcolm  v.  Malcolm,  3  Gush.  472. 

Mr.  Justice  Holmes  delivered  the  opinion 
of  the  court: 

This  is  a  bill  for  instructions,  brought  by 
the  Trust  Company,  the    principal    defend- 
ant in  error,  to  ascertain  whether  a  fund  be- 
queathed to  it  in  trust  for  Mrs.  Luke,  [428] 
eo-defendant  in  error,  passed  to  her  trustee 
in  bankruptcy.    The  bequest  was  of  $75,000, 
"The  whole  of  the  net  income  thereof  to  be 
paid  my  adopted  daughter,  Fannie  Leighton 
Luke,  wife  of  Otis  H.  Luke,  of  said  Brook- 
line,  during  her  life  quarterly  in  each  and 
every  year  together  with  such  portion  of  the 
principal  of  said  trust  fund  as  shall  make 
the  amount  to  be  paid  her    at    least   three 
thousand  dollars  a  year  during  her  life,  said 
income  to  be  free  from  the  interference  or 
control  of  her  creditors."    It  is  established 
law  in  Massachusetts  that  such  trusts  are 
Talid  and  effective  againsf  creditors  (Broad- 
way Nat.  Bank  v.  Adams,  133  Mass.   170, 
43  Am.  Rep.  504),  and,  subject  to  what  we 
are  about  to  say,  against  assignees    in    in- 
solvency or  trustees  in  bankruptcy  (Billings 
-r.  Marsh,  153  Mass.  311,  10  L.R.A.  764,  25 
Am.  St.  Rep.  635,  26  N.  £.  1000;  Munroe 
T.  Dewey,  176  Mass.  184,  79  Am.  St.  Rep. 
304,  57  N.  E.  340).     The  trustee  in  bank- 
ruptcy seeks  to  avoid  the  effect  of  these  de- 
cisions  on    the   ground    that    Mrs.    Luke's 
equitable  life  interest  was  held  by  the  su- 
preme court  of  the  state  to   be    assignable, 
and  that  therefore  it  passed  under  §  70  a 
(6)    of  the  bankruptcy  act,  vesting  in  the 
trustee     all     property   that    the    bankrupt 
''eould  by  any  means  have  transferred."    [30 
Stat,  at  L.  566,  chap.  541,  Comp.  Stat.  1913, 
I  9654.]     The  supreme  judicial  court,  how- 
•0  Ii.  ed. 


ever,  held  that  the  above-cited  cases  gov- 
erned, and  that  the  property  did  not  pass. 
220  Mass.  484,  L.R.A.  — ,  —,  108  N.  E.  64. 

If  it  be  true  without  qualification  that  the 
bankrupt  could  have  assijirned  her  interest 
and  by  so  doin£  could  have  freed  from  the 
trust  both  the  fund  and  any  proceeds  re- 
ceived by  her,  the  argument  would  be  very 
strong  that  the  statute  intended  the  fund 
to  pass.  There  would  be  an  analogy  at  least 
with  the  provision  giving  the  trustee  all 
powers  that  the  bankrupt  might  have  exer- 
cised for  her  own  benefit,  §  70  a  (3),  and 
there  would  be  difficulty  in  admitting  that  a 
person  could  have  property  over  which  he 
could  exercise  all  the  powers  of  ownership 
except  to  make  it  liable  for  his  debts.  The 
conclusion  that  the  [420]  fund  was  assign- 
able was  based  on  two  cases,  and  we  presume 
was  meant  to  go  on  farther  than  their  au- 
thority required.  The  first  of  these  simply 
held  that  an  executor  was  not  liable  on  his 
bond  for  paying  over  an  annuity  to  an  as- 
signee as  it  fell  due,  when  the  assignor  to 
whom  it  was  bequeathed  free  from  creditors 
had  not  attempted  to  avoid  his  act.  Ames  t. 
C^larke,  106  Mass.  573.  The  other  case  does 
not  go  beyond  a  dictum  that  carries  the 
principle  no  farther.  Huntress  v.  Allen,  105 
Mass.  226,  122  Am.  St.  Rep.  243,  80  N.  E. 
949.  It  is  true  that  where  the  restriction 
has  been  enforced  there  generally  has  been  a 
clause  against  anticipation,  but  the  present 
decision  in  following  them  holds  the  re- 
stricting clause  paramount,  and  therefore  we 
feel  warranted  in  assuming  that  the  power 
of  alienation  will  not  be  pressed  to  a  point 
inconsistent  with  the  dominant  intent  of  the 
will.  Whether,  if  that  power  were  absolute, 
the  restriction  still  should  be  upheld,  as  in 
case  of  a  statutory  exemption  that  leaves 
the  bankrupt  free  to  convey  his  rights^  ii 
is  unnecessary  to  decide. 

The  law  of  Massachusetts  treats  such  re- 
strictions as  limiting  the  character  of  the 
equitable  property  and  inherent  in  it.  Dunn 
V.  Dobson,  198  Mass.  142,  140,  84  N.  E.  327; 
Lathrop  v.  Merrill,  207  Mass.  6,  9.  92  N.  E. 
1019.  Whatever  may  have  been  the  criti- 
cisms upon  the  policy  and  soundness  of  the 
doctrine,  and  whatever  may  be  the  power 
of  this  court  to  weigh  the  reasoning  npoo 
which  it  has  been. established  by  the  Massa- 
chusetts cases  (Pagie  v.  Edmunds,  187  U.  8. 
596,  602,  47  L.  ed.  318,  321,  23  Sup.  Ct.  Rep« 
200),  it  has  been  established  too  long  and  kk 
too  nearly  sanctioned  by  the  decisions  «if 
this  court  to  be  overthrown  here  (Nichols  v.. 
Eaton,  91  U.  S.  716,  23  L.  ed.  254;  SheltoDi 
V.  King,  229  U.  S.  90,  99,  57  L.  ed.  1086,. 
1089,  33  Sup.  Ct.  Rep.  686).  The  policy  oT 
the  bankruptcy  act  is  to  respect  state  ck* 
emptions,  and  until  the  Massachusetts  de- 
cisions shall  have  gone  farther  than  '\SMrs 


4SI>-<91  SUPREME  COURT  OF  THE  UNITED  STATES.  Oct.  Tdh, 

fflt  hftY*  we  in  not  prepared  to  nj  that    C.  C.  A.  254,  200  F«d.  328;  on  aeeond  appeal, 
the  prewDt  bequest  is  not  protMtwl  by  the    120  C.  C.  A.  604,  Z13  Fed.  1021. 
The  facta  are  itated  in  the  opinimi. 

Mt.  Morleon  R.  Walt«  argned  Qie  cmaa. 
and,    with    Ur.    John    Randolph    Behiudul, 
■  filed  a  brief  tor  appellant: 

In   Ohio  a  deed   it  good,  although   unn- 

[taOl  WALTER  J.  OAHEY,  Appt,         "'*>'■  *«■;"'  •".««!*  >»»  "'  P"- 
y_  ■     rr  chatere  without  notice. 

E.  REEDER  DONOHUE,  Truatee  in  Bank-  _^"/"  '„ ^'"'"'l„"^5"''''i,"?'  ^^^^  I' 

niptcT  of  John  E.  Humphreya  and  Har-  Ef"nklin   Bank,  69  Ohio  St.  80,   SI   N.   E. 

riet  A.  Humphreye.  876;  Kemper  t.  Campbell.  44  Ohio  St.  210, 

9   N.   E.   eeS;    Blackburn   v.   Blackburn,   8 

(See  8.  C.  Beporta's  ed.  430-438.)  Ohio,  81. 

Congreaa,  in  enacting  Jg  60a  and  00b  of 

Bankrnptor  —  prelerenttel  transfers  —  the  bankruptcy  act  niUBt  have  had  in  mind 

oompnUnc    four    montha'    period    —  the  atatuB  given  to  a  trustee  in  bankruptcy 

when  la  rocordlnK  "pequlred."  by  g  47a,  el.  2,  and  meant  that  thoae  inatrn- 

TTie  recording  of  a  oooveyance  by  an  ^'    j^            ^     ,^^           i^^  ^^  ^  recorded 

Iniolvent  ii  not  "required"    by  law,  within  ,,      j^,.          ,j     .^     _,      ^ 

the  meaning  of  the  provision,  of  the  bank-  "'  ^fS'-t^^d  which  would  otherwiae  be  nn- 

runt  act  of  July  1,   IBflS    (30   8Ut.  at   L.  ""wlmg  againit  the  trustee  in  bankruptcy 

S62,  chap.  S41),  §  OOa,  aa  amended  by  the  having  that  aUtuB. 

act  of   February   5,    1903    (32   BUt.   at   L.  Re  Hunt,  139  Fed.  283;  Little  t.  HoUey- 

799,  chap.  487),  and  §  SOb,  aa  amended  by  Brooka  Hardware  Co.   67  C.  C.  A.  46,   13S 

the  act  of  June  25,   1910    (36   8Ut.  at  L.  Pe^,  674:  Heyer  Bros.  Drug  Co.  v.  Pipkin 

842    chap.  412,  Comn,  8Ut  1913    S  9844),  p^  Co.  OB  C.  C.  A.  240,  138  Fed.  SM;  Re 

r:^t^AST^fr.^t.is\\L,i^tot  H*">  ,\«  C'  ?;  t  r«  ^f,  it-  ^' 

month!  before  the  bankruptcy  procewlinga    ^  ^oyd,  130  C.  O.  A.  28B,  213  Fed.  774; 
are  begun,  if  by  law  recording  or  regiaUr-    Rydborg  v.  Smith,  110  C.  C.  A.  68,  IBB  Fed. 
ing  la  required,  where,   under  the  apptica-    1^6;   Re  Klein,  116  C.  C.  A.  603,  197  Fed. 
ble  local  Uw  (Ohio  Gen.  Code,  S  B643),  the    241;  Re  Moaher,  224  Fed.  739. 
failure  to  record  a  deed  doea  not  render  it        „      _    „     _  ,     , 

invalid  aa  to  the  grantor'a  creditors,  but  ^-  =■  »■  Oonoh"*  "-gued  the  eauMt. 
only  aa  to  aubiequent  bona  fide  purchaaera  ^°^>  "'*^  Meaara.  David  Davia  and  W.  O. 
without  notice.  Durrell,  filed  a  brief  for  appellees; 

tPor  other  earas,  aea  Bankraptcj,  214-222.  Id        Failure  by  Carey  from  August  8,  1810,  to 
IM,.«  8np.  a.  1M8.J  Noyember  15,  1910.  to  record  the  deed,  ^aa, 

[Ko.  179.]  of   itself,    so   far    aa    the   creditors    of    the 

bankrupt  are  concerned,  fraudulent. 

Clayton  T.  Exchange  Bank,  67   C.  C.  A. 

656,  121  Fed.  830,  191  U.  8.  667,  48  L.  ed. 

305,  24  Sup.  Ct.  Rep.  840. 

APPEAL  from  the  United  Statei  Circuit  The  question  at  bar  is  one  that  haa  been 
Court  of  Appeals  for  the  Sixth  Circuit  before  the  courta  in  numerous  eases  in  Uia 
to  review  a  decree  which,  on  a  second  appeal,  several  diatricta  of  the  United  States,  and 
affinned  a  decree  of  the  District  Court  for  the  following  caaes  are  to  the  point  and 
the  Southeru  District  of  Ohio,  setting  aside  sustain  the  contention  of  the  trustee: 
in  favor  of  a  trustee  in  bankruptcy  a  con-  Re  Beckhaus.  100  C.  0.  A.  661.  177  Fed. 
veyance  made  by  the  bankrupt.  Reversed  141 ;  Loeser  t.  Savings  Deposit  Bank  &  T. 
and  remanded   for   further   proceedings.  Co.  18  I^R.A.(N.S.)   1233,  78  C.  C.  A.  697, 

See  same  case  below  on  flrst  appeal,  126  148  Fed.  975;  Engliah  v.  Rosa,  140  Fed. 
— ^;- — ; ; ~ — ■    830;  Ragan  t.  Donovan,  189  Fed.  138;  Mat- 

NOT«.--When  the  local,  law  is  deemed  to  tky  v.  Giesler,  110  C.  C.  A.  90,  187  Fed. 
require  the  regisUring  or  recording  of  a  gjX.  ouUnv  v  Morse  39  Ann  D  C  fi23- 
tranafer,  within  the  meaning  of  S  60a  of  the  V  \  1^.  I  ,  ^  »  .'V  o'.  ,  Jl  .' 
bankruptcy  act  ^'^*'  N*''  ^^^^  ^-  Connett.  6  L.ILA.(N.S.) 

He  aeelsion  in  Camt  t.  DoiroHui  settles   1«,  73  C.  C.  A.  219,  142  Fed.  33;  Carey  w. 
thia  hitherto  mooted  question  by  rejecting    Donohue,  126  C.  C.  A.  264,  209  Fed.  328. 
the  view  taken  by  th6  circuit  courts  of  ap- 
peals for  the  aUth,  seventh  and  eighth  cir-        Mr.  Justice  Hnghes  delivered  the  opln- 
enits  in  favor  of  that  reached  in  the  second,    '^^^  g[  ^,g  court: 

flfth  and  ninth  circuita.     A  full  discussion  I      tu-         ■» '  k».._t.*   v-        *_.  .._   i. 

«f  the  opposing  cases  may  be  found  in  the  L  T,*"'  '■"'  ""  ''«"'.^*  \  "  *^*^  ^ 
notM  to  First  Nat.  Bank  t.  Connett,  6  bankruptcy  to  set  aaide  a  tranafer  madn 
LJLA.(N.S.)  148,  and  Loeaerv.  Savings  De-bj  O"*  bankrupt  of  cerUin  real  eaUte. 
paalt  Bank  &  T.  Co.  18  LJUA.(N.S.)  1233.  Upon  appeal  from  a  decree  in  favor  ol  th« 
rsa  «40  V.  B. 


1016. 


CAREY  T.  DOKOHUE. 


481--4SS 


trustee,  it  was  held  by  the  circuit  court  of 
J4»peaU  that  the  case  had  been  tried,  and 
the  decree  was  baaed,  upon  the  theory  of 
preference  voidable  under  the  bankruptcy 
act,  and  for  the  purpose  of  ^>propriate 
4unendment  to  conform  the  bill  to  the  proof, 
the  decree  was  reversed  and  the  cause  was 
remanded.  126  C.  C.  A.  254,  209  Fed.  328. 
The  amendment  was  made  accordingly,  and 
the  decree  was  re-entered  and  affirmed.  129 
C.  C.  A.  604,  213  Fed.  1021. 

The  petition  in  involuntary  bankruptcy 
was  filed  on  January  3,  1011,  and  the 
adjudication  was  had  on  January  24,  1911. 
The  following  facts  appear  from  the  find- 
ings: On  August  6,  1910,  John  £.  Hum- 
phreys (the  bankrupt)  executed  and  deliv- 
ered to  Walter  J.  Carey  (the  appellant) 
the  deed  in  question.  It  was  left  for  record 
on  November  15,  1910,  with  the  recording 
officer  of  the  proper  county,  and  was  re- 
'Corded.  Humphreys  was  insolvent  at  the 
time  of  the  execution  of  the  deed,  and  Carey 
4it  that  time  had  reasonable  cause  to  believe 
that  such  transfer  to  him,  if  made,  would 
•effect  a  preference,  being  given  in  payment 
of  an  antecedent  debt.  On  December  81, 
1910,  Carey  conveyed  the  property  to  inno- 
cent purchasers,  this  deed  being  left  for 
record  on  January  8,  1911.  It  was  held 
that  the  latter  conveyance  placed  the  prop- 
erty itself  beyond  the  reach  of  the  court; 
and  judgment  was  given  in  favor  of  the 
trustee  and  against  Carey  for  the  [432] 
value  of  the  property  as  found  by  a  jury, 
with  provision  for  the  payment  by  the  trus- 
tee to  the  wife  of  the  bankrupt  of  the  esti- 
mated value  of  her  inchoate  right  of  dower. 

We  are  not  concerned  with  the  provisions 
•of  the  Ohio  statute  relating  to  preferences 
(General  Code,  gg  11,104,  11,105),— a  stat- 
ute which  provides  a  different  test  of  lia- 
bility from  that  of  g  60  i  of  the  Federal 
4tct  pursuant   to   which   the  recovery   was 


had.  (126  C.  C.  A.  254,  209  Fed.  pp.  331, 
332.)  The  sole  question  presented  for  the 
consideration  of  this  court  is  whether  the 
deed  executed  by  the  bankrupt  was  one 
which  was  ''required"  to  be  recorded  within 
the  meaning  of  this  section.  If  it  was  not, 
there  could  be  no  recovery  of  the  property 
under  g  60,  as  the  deed  was  [483]  executed 
and  delivered  more  than  four  months  before 
the  petition  in  bankruptcy  was  filed.  If 
the  deed  was  required  to  be  recorded  in  the 
sense  of  the  statute,  it  is  clear  that  the 
trustee  was  entitled  to  recover,  as  the  re- 
cording was  within  the  four  months'  period 
and  the  other  conditions  of  recovery  were 
satisfied. 

The  provision  for  the  recording  of  the 
deed  is  foimd  in  g  8543  of  the  General  Code 
of  Ohio,  which  follows  the  requirement  for 
the  recording  of  mortgages  and  powers  of 
attorney.    The  section  reads: 

"Section  8543.  All  other  deeds  and  in- 
struments of  writing  for  the  conveyance  or 
encumbrance  of  lands,  tenements,  or  here- 
ditaments executed  agreeably  to  the  provi- 
sions of  this  chapter,  shall  be  recorded  ia 
the  office  of  the  recorder  of  the  county  in 
which  the  premises  are  situated,  and  until 
so  recorded  or  filed  for  record,  they  shall 
be  deemed  fraudulent,  so  far  as  relates  to 
a  subsequent  bona  fide  purchaser  having, 
at  the  time  of  purchase,  no  knowledge  of 
the  existence  of  such  former  deed  or  instru- 
ment." 

Referring  to  this  section,  the  supreme 
court  of  Ohio  said  in  Dow  v.  Union  Nat. 
Bank,  87  Ohio  St.  173,  181,  100  N.  E.  328: 
''This  provision  of  the  statute  must  be  ac- 
cepted as  exclusively  defining  the  conse- 
quences which  follow  a  faUure  to  file  a 
deed  for  record,  and  there  being  mere  neg- 
lect, unaccompanied  by  any  fraudulent  con- 
duct or  representation  on  the  part  of  the 
grantee,    no    right   can    accrue   to    anyone 


I  The  applicable  provisions  of  g  60  are  as 
follows: 

"Sec.  60.  Preferred  Creditors — a.  A  per- 
son shall  be  deemed  to  have  given  a  prefer- 
•ence  if;  being  insolvent,  he  has,  within  four 
months  before  the  filing  of  the  petition,  or 
after  the  filing  of  the  petition  and  before 
the  adjudication,  procured  or  suffered  a 
judgment  to  be  entered  against  himself  in 
favor  of  any  person,  or  made  a  transfer  of 
any  of  his  propertv,  and  the  effect  of  the 
enforcement  of  such  judgment  or  transfer 
will  be  to  enable  any  one  of  his  creditors 
to  obtain  a  ereater  percentage  of  his  debt 
than  any  oUier  of  such  creditors  of  the 
same  class.  Where  the  preference  consists 
in  a  transfer,  such  period  of  four  months 
shall  not  expire  until  four  months  after  the 
date  of  the  recording  or  registering  of  the 
transfer,  if  by  law  such  recording  or  regis- 
tering is  required.  [32  Stat,  at  L.  799,  800, 
<hap.  487,  I  18,  Comp.  SUt.  1913,  |  9644.] 
•40  li.  ed. 


"b.  If  a  bankrupt  shall  have  procured  or 
suffered  a  judgment  to  be  entered  against 
him  in  favor  of  any  person  or  have  made  a 
transfer  of  any  of  his  property,  and  if,  at 
the  time  of  the  transfer,  or  of  the  entry  of 
the  judgment,  or  of  the  recording  or  reffis- 
tering  of  the  transfer  if  by  law  recording 
or  registering  thereof  is  required,  and  being 
within  four  months  before  the  filing  of  the 
petition  in  bankruptov  or  after  the  filing 
thereof  and  before  the  adiudication,  the 
bankrupt  be  insolvent  and  the  judgment  or 
transfer  then  operate  as  a  preference,  and 
the  person  receiving  it  or  to  be  benefited 
thereby,  or  his  agent  acting  therein,  shall 
then  have  reasonable  cause  to  believe  that 
the  enforcement  of  such  judgment  or  trans- 
fer would  effect  a  preference,  it  shall  be 
voidable  by  the  trustee  and  he  may  reoover 
the  property  or  its  value  from  such  person.** 
[36  Stat,  at  L.  842,  chap.  412,  g  11,  Comp. 
Stat.  1918,  I  9644.] 


483-436 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbbm, 


other  than  such  bona  fide  purchaser."  Ac- 
cordingly, it  was  held  that  the  mere  fail- 
ure to  record  a  deed  did  not  render  it 
invalid  as  to  creditors  of  the  grantor  al- 
though they  became  such  on  the  faith  of 
his  representation  that  he  was  still  the 
owner  of  the  property  conveyed.  This  de- 
cision applied  the  ruling  in  Wright  v. 
Franklin  Bank,  50  Ohio  St.  80,  92,  03,  61 
N.  E.  876,  where  it  was  said:  "Lands  held 
by  a  properly  executed  but  unrecorded  deed 
are  also  free  from  the  debts  of  the  grantor, 
whether  attempted  [434]  to  be  reached  in 
an  assignment  for  the  benefit  of  creditors 
made  by  him,  or  upon  an  attachment,  judg- 
ment, or  execution  against  him.  The  title 
under  such  a  deed  is  good  as  against  every- 
thing except  a  subsequent  bona  fide  pur- 
chaser without  notice.  .  .  .  Mortgages 
so  executed,  whether  on  an  estate  in  real 
property  or  on  only  an  interest  therein,  take 
effect  from  the  time  of  the  delivery  to  the 
recorder,  and  deeds  so  executed,  conveying 
the  estate  or  only  an  interest  therein,  that 
is,  an  equity,  take  effect  from  delivery,  ex- 
cept as  against  subsequent  bona  fide  pur- 
chasers without  notice,  and  as  against  such 
the  deed  must  be  also  recorded."  In  the 
present  case,  the  court  of  appeals  was  satis- 
fied that  in  equity  the  instrument  (which 
was  absolute  in  form)  should  be  treated  as 
a  mortgage,  but  the  court  did  not  think 
this  to  be  important  because  of  the  holding 
of  the  Ohio  court  that  an  instrument  in  this 
form,  "unlike  a  legal  mortgage,  operates 
upon  delivery  to  transfer  title  and  so  is  re- 
quired to  be  recorded  as  a  deed."  126  C. 
C.  A.  260,  261,  200  Fed.  pp.  334,  335; 
Kemper  v.  Campbell,  44  Ohio  St.  210,  218, 
6  N.  E.  566;  Wright  v.  Franklin  Bank,  50 
Ohio  St.  p.  05,  51  N.  E.  876;  Cole  v.  Mer- 
chants Nat.  Bank,  15  Ohio  C.  C.  (N.  S.) 
315,  347. 

Under  these  decisions,  then,  we  assume 
that  there  was  no  requirement  that  this  con- 
veyance should  be  recorded  in  order  to  give 
it  validity  as  against  any  creditor  of  the 
bankrupt,  whether  a  general  creditor,  or 
a  lien  creditor,  or  a  judgment  creditor  with 
execution  returned  unsatisfied;  that  is,  as 
against  any  class  of  persons  represented  by 
the  trustee  or  with  whose  "rights,  remedies, 
and  powers"  he  was  to  be  deemed  to  be 
vested.  Bankruptcy  act,  §  47a.  This  fact, 
the  appellant  contends,  makes  recovery  im- 
possible under  g  60;  while  the  appellees  in- 
sist that  the  provision  in  the  interest  of 
subsequent  bona  fide  purciiasers  constitutes 
a  requirement  of  recording  which  entitles 
a  trustee  to  recover  for  the  benefit  of  cred- 
itors. With  req>eet  to  the  construction  of 
the  [436]  clause  in  question,  there  has  been 
diversity  of  opinion  in  the  circuit  courts  of 
appeals.  In  the  sixth,  seventh,  and  eighth 
728 


circuits,  the  view  has  been  taken  that  ths 
word  "required"  refers  "io  the  character 
of  the  instrument  giving  the  preference" 
without  regard  to  the.  persons  in  whose 
favor  the  requirement  is  imposed;  that  is, 
if  the  transfer  is  required  to  be  recorded 
as  to  anyone,  the  trustee  may  recover  if  it 
has  not  been  recorded  more  than  four 
months  before  the  filing  of  the  petition  in 
bankruptcy.  See  Loeser  v.  Savings  Deposit 
Bank  &  T.  Co.  (C.  C.  A.  Sixth)  18  L.RJL 
(N.S.)  1233,  78  a  C.  A.  507,  148  Fed.  075, 
070  (followed  by  the  decision  in  the  pres- 
ent case) ;  Re  Beckhaus  (C.  C.  A.  Seventh) 
100  C.  C.  A.  561,  177  Fed.  141  (see  Re 
Sturtevant  [C.  C.  A.  Seventh]  110  C.  C.  A. 
68,  188  Fed.  106) ;  First  Nat.  Bank  v.  Con- 
nett  (CCA.  Eighth)  5  L.RJl.(N.S.)  148, 
73  C  C  A.  210,  142  Fed.  83,  36;  MatUey 
V.  Giesler  (C  C  A.  Eighth)  110  C  0.  A. 
00,  187  Fed.  070,  071.  A  different  conclu- 
sion has  been  reached  in  the  second,  fifth, 
and  ninth  circuits.  See  Re  Boyd  (C  C  A. 
Second)  130  C  C  A.  288,  213  Fed.  774; 
Meyer  Bros.  Drug  Co.  v.  Pipkin  Drug  Co. 
(C  C  A.  Fifth)  60  C  C  A.  240,  136  Fed. 
306;  Re  Mcintosh  (C  C  A.  Ninth)  80  C. 
C  A.  250,  150  Fed.  546;  also  Re  Hunt  (D. 
C  N.  Y.)   130  Fed.  283. 

In  its  original  form,  §  60  made  no  refer- 
ence to  record.     30  Stat,  at  L.  562,  chap. 
541,  C)mp.  SUt.   1013,  g  0644.     The  four 
months  ran  from  the  time  of  the  giving  of 
the    preference,    and    if    this    period    had 
elapsed    when    the    bankruptcy    proceeding 
was  instituted,  there  could  be  no  recovery 
under  §  60,  whether  the  transfer  had,  or 
had  not,  been  recorded.    See  Humpfirey  t. 
Tatman,  108  U.  S.  01,  40  L.  ed.  056,  25  Sup. 
Ct.  Rep.  567;  Rogers  v.  Page,  72  C  C  A. 
164,  140  Fed.  506,  500.    But  a  different  rule 
was    established   for   computing   the   time 
within    which    a    petition    in    bankruptcy 
might  be  filed.     In  §  3b,  it  was  provided 
that  the  four   months*  period  should   not 
expire  "until  four  months  after  (1)  the  dat* 
of  the  recording  or  registering  of  the  trans- 
fer   ..     .    when  the  act  consists  in  hav- 
ing made  a  transfer    ...    for  the  pur- 
pose  of  giving  a  preference    .    .    .    if  bj 
[436]  law  such  recording  or  registering  U 
required  or  permitted,  or,  if  it  is  not,  from 
the  date  when  the  beneficiary  takes  notori- 
ous, exclusive,  or  continuous  possession  of 
the  property  imless  the  petitioning  creditors 
have  received  actual  notice  of  such  trans- 
fer."    30  Stat,  at  L.  546,  547,  chap    541, 
Comp.  SUt.  1018,  S  0587.    This  distinction 
between  the  test  of  the  right  to  institute 
banluruptcy  proceedings  and  the  test  of  the 
right  to  recover  from  one  who  had  received 
a  transfer  alleged  to  be  a  preference  lay  in 
the  terms  of  the  act  and  could  not  rightly 
be  ignored.    It  was  urged  that  the  result 

240  V.  8«. 


1916. 


CAREY  v.  DOKOHUE. 


43e-438 


was  to  encourage  secret  preferential  trans- 
actions; but  the  wisdom  of  the  prescribed 
condition  of  recovery  from  the  preferred 
creditor,  and  the  advisability  of  conforming 
the  provision  of  §  60  to  that  of  §  3b  was  a 
matter  for  legislative,  not  judicial,  consid- 
eration. To  secure  this  conformity,  an 
amendment  to  §  60  was  proposed  in  Con- 
gress in  the  year  1903.  As  passed  by  the 
House  of  Representatives,  it  added  to  §  60a 
the  following  clause:  "Where  the  prefer- 
ence consists  in  a  transfer,  such  period  of 
four  months  shall  not  expire  until  four 
montha  after  the  date  of  the  recording  or 
registering  of  the  transfer,  if  by  law  such 
recording  or  registering  is  required  or  per- 
mitted, or  if  not,  from  the  date  when  the 
beneficiary  takes  notorious,  exclusive,  or 
continuous' possession  of  the  property  trans- 
ferred." Cong.  Rec.  57th  Cong.  1st  Sess. 
vol.  36,  pt.  7,  pp.  6938,  6943.  The  Senate 
struck  from  this  proposed  amendment  all 
that  follows  the  words,  "if  by  law  such  re- 
cording or  registering  is  required,"  and  as 
thus  limited  the  amendment  was  adopted  by 
Congress.  Cong.  Rec.  67th  Cong.  2d  Sess. 
vol.  36,  pt.  1,  p.  1036;  act  of  Feb.  5,  1903, 
chap.  487,  32  SUt.  at  L.  797,  799,  800, 
Comp.  Stat.  1913,  §  9644;  Re  Hunt,  139 
Fed.  p.  286.  There  is  no  basis  for  the  as- 
sumption that  the  words  which  the  House 
of  Representatives  had  desired  to  add  were 
ultimately  deemed  to  be  surplusage,  for 
these  words  had  an  obviously  distinct  sig- 
nificance and  they  had  been  included  in  §  3b, 
which  in  this  respect  remained  unchanged. 
[437]  We  cannot  but  regard  the  action 
of  Congress  as  a  deliberate  refusal  to  con- 
form the  requirements  of  §  60  to  those  of 
S  3b,  and  we  are  not  at  liberty  to  supply 
by  construction  what  Congress  has  clearly 
shown  its  intention  to  omit.  It  should  also 
be  observed  that  §  60  was  again  under  con-  j 
sideration  by  Congress  in  the  year  1910, 
and  it  was  again  amended  [36  Stat,  at  L. 
842,  chap.  412,  §  11,  Comp.  Stat.  1913, 
§  9644] ;  but  the  last  sentence  of  §  60a,  as 
inserted  in  1903,  was  left  unaltered.  And 
the  same  conditional  clause — ''if  by  law  re- 
cording or  registering  thereof  is  required" — 
was  used  in  the  amended  subdivision  b 
(ante,  727,  note).  Whatever  argument  is 
made  for  an  extension  of  the  clause,  in  or- 
der more  completely  to  conform  it  to  the 
language  of  §  3b,  we  must  disregard  as  ad- 
dressed to  a  matter  solely  of  legislative 
policy. 

As  Congress  did  not  undertake  in  §  60 
to  hit  all  preferential  transfers  (otherwise 
▼alid)  merely  because  they  were  not  dis- 
closed, either  by  record  or  possession,  more 
than  four  months  before  the  bankruptcy 
proceeding,  the  inquiry  is  simply  as  to  the 
nature  of  the  requirement  of  recording  to 
•0  li.  ed. 


which  Congress  referred.  The  character  of 
the  transfer  itself,  both  with  respect  to 
what  should  constitute  a  transfer  and  its 
preferential  effect,  had  been  carefully  de- 
fined. It  is  plain  that  the  words  are  not 
limited  to  cases  where  recording  is  re- 
quired for  the  purpose  of  giving  validity  to 
the  transaction  as  between  the  parties.  For 
that  purpose,  no  amendment  of  the  original 
act  was  needed,  as  in  such  a  case  there  could 
be  no  giving  of  a  preference  without  record- 
ing. But  in  dealing  with  a  transfer,  as 
defined,  which,  though  valid  as  between  the 
parties,  was  one  which  was  "required"  to 
be  recorded,  the  reference  was  necessarily  to 
a  requirement  in  the  interest  of  others  who 
were  in  the  contemplation  of  Congress  in 
enacting  the  provision.  The  natural,  and, 
we  think,  the  intended,  meaning,  was  to  em- 
brace those  cases  in  which  recording  was 
necessary  in  order  to  make  the  transfer 
valid  as  against  those  concerned  in  the  dis- 
tribution of  [438]  the  insolvent  estate; 
that  is,  as  against  creditors,  including  those 
whose  position  the  trustee  was  entitled  to 
take.  This  gives  effect  to  the  amendment 
and  interprets  it  in  consonance  with  the 
spirit  and  purpose  of  the  bankruptcy  act. 
See  Senate  Report,  No.  691,  Sixty-first  (Ik>ng. 
2d  Sess.,  p.  8.  In  the  present  case,  there 
was  no  requirement  of  recording  in  favor  of 
creditors,  either  general  creditors  or  lien 
creditors.  The  requirement  of  the  applica- 
ble law  was  solely  in  favor  of  subsequent 
bona  fide  purchasers  without  notice.  These 
subsequent  purchasers  are  entirely  outside 
of  the  purview  of  the  bankruptcy  act.  The 
proceeding  in  bankruptcy  is  not,  in  any 
sense,  in  their  interest,  and  the  trustee  does 
not  represent  them.  We  can  find  no  ground 
for  the  conclusion  that  the  clause  "if  by 
law  recording  or  registering  thereof  is  re- 
quired" had  any  reference  to  requirements 
in  the  interest  of  persons  of  this  descrip- 
tion. The  limitation  of  the  provision  to 
those  transfers  which  are  "required"  to  be 
recorded  under  the  applicable  law  is  not  to 
be  taken  to  be  an  artificial  one  by  which 
the  rights  of  creditors  are  made  to  depend 
upon  the  presence  or  absence  of  local  restric- 
tions adopted,  alio  intuitu,  in  the  interest 
of  others.  Rather,  as  we  have  said,  we 
deem  the  reference  to  be  to  requirements  of 
registry  or  record  which  have  been  estab- 
lished for  the  protection  of  creditors, — the 
persona  interested  in  the  bankrupt  estate, 
and  in  whose  behalf,  or  in  whose  place,  the 
trustee  is  entitled  to  act.  And  where,  as 
in  this  case,  there  is  no  such  requirement, 
and  the  transfer  was  made  more  than  four 
months  before  the  filing  of  the  petition  in 
bankruptcy,  there  can  be  no  recovery  under 
S  60. 
In  this  view,  the  decree  must  be  reversed 


438-441 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  Tkuf, 


and  the  cause  remanded  for  further  proceed' 
inga  in  conformity  with  this  opinion. 
It  ia  so  ordered. 


[439]     PECOS    &    NORTHERN    TEXAS 
RAILWAY  COMPANY,  Plff.  in  Err., 

V. 

MRS.  M.  A.  ROSENBLOOM,  for  Herself  and 
in  Behalf  of  Milton  Rosenbloom  et  al. 

(See  8.  C.  Reporter's  ed.  439-441.) 

Trial  —  sufficiency  of  evidence  to  s:o  to 
Jury  —  employment  in  interstate  com- 
merce —  employers*  liability. 

Evidence  that  a  railway  ticket  clerk, 
when  killed  in  the  switching  yard  by  a 
moving  car,  was,  in  pursuance  of  his  duty, 
taking  the  numbers  of  the  cars  in  a  freight 
train  which  were,  with  one  exception,  mov- 
inff  in  interstate  commerce,  is  sufficient  to 
take  to  the  jury  the  question  whether  or 
not  he  was  then  engaged  in  interstate  com- 
merce. 

[For  other  cases,  see  Trial,  VI.  b,  in  Digest 
Bop.  1908.] 

[No.  613.] 

Submitted  February  24,   1916.     Decided 
March  13,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Texas  to  review  a  judgment 
which  affirmed  a  judgment  of  the  Court  of 
Civil  Appeals  of  that  state,  affirming  a 
judgment  of  the  District  Court  of  Potter 
County  in  favor  of  plaintifif  in  an  action  for 
death.  Reversed  and  remanded  for  further 
proceedings. 

See  same  case  below  in  court  of  civil  ap- 
peals, —  Tex.  Civ.  App.  — ,  141  S.  W.  175 ; 
in  supreme  court,  —  Tex.  — ,  173  S.  W.  216, 
on  rehearing  177  S.  W.  952. 

Messrs.  J.  W.  Terry,  Gardiner  liath- 
ropv  A.  H.  Culwell,  Alexander  Britton, 
and  Evans  Browne  submitted  the  cause 
for  plaintiff  in  error. 

Mr.  James  D.  Williamson  submitted 
the  cause  for  defendants  in  error.  Messrs. 
J.  A.  Stanford  and  H.  H.  Cooper  were  on 
the  brief. 

Memorandum  opinion  by  Mr.  Justice  Mc- 
Reynolds,  by  direction  of  the  court: 

In  November,  1909,  M.  A.  Rosenbloom  was 
instantly  killed  by  a  ballast  car  being 
pushed  by  an  engine  along  track  No.  5  in  the 

NOTB. — On  the  constitutionality,  applica- 
tion, and  effect  of  the  Federal  employers* 
liability  act — see  notes  to  Lamphere  v.  Ore- 

Sn  R.  ft  Nav.  Co.  47  L.R.A.(N.S.)  38,  and 
aboard  Air  Line  R.  Co.  v.  Horton,  h^JL, 
1916C,  47. 
7M0 


railway  company's  switch  yard  at  [440] 
Amarillo,  Texas:  Proceeding  in  behalf  of 
herself,  as  next  friend  for  her  two  minor 
children,  and  for  the  use  and  benefit  of  his 
parents,  the  deceased's  widow  instituted  this 
suit  for  damages  in  the  district  court.  Pot- 
ter county,  Texas.  The  jury  returned  a 
verdict  for  $7,000 — apportioned  $2,000  re- 
spectively to  the  the  widow  and  each  child, 
and  $500  to  each  parent;  judgment  thereon 
was  sustained  by  the  court  of  civil  appeals 
(141  S.  W.  175)  and  by  the  state  supreme 
court,  —  Tex.  — ,  173  S.  W.  215. 

Among  other  things  the  amended  petition 
alleges:  That  Rosenbloom  was  employed  by 
the  railway  as  ticket  clerk  snd  required  to 
be  in  and  at  the  switch  yard  in  order  to  take 
and  preserve  a  record  of  numbers  on  outgo- 
ing cars  and  to  seal  those  which  needed  it. 
That  when  the  accident  occurred  a  long 
freight  train  was  leaving  the  yard  on  its 
regular  run  along  switch  track  No.  4;  as 
required  by  his  duties,  Rosenbloom  was 
walking  between  tracks  4  and  5,  and  near 
the  train,  observing  and  noting  car  num- 
bers; while  so  engaged  and  exercising  due 
care  a  ballast  car,  negligently  pushed  along 
track  No.  5,  struck  him  with  great  violence 
and  caused  his  death. 

It  conclusively  appears  from  the  evidence 
that  the  freight  train  on  track  4  consisted 
of  thirty  odd  cars  moving,  with  one  excep- 
tion, in  interstate  commerce.  The  petition 
declares  that,  in  pursuance  of  his  duty,  de 
ceased  was  taking  the  numbers  of  these 
cars;  there  was  some  direct  evidence  to  the 
same  effect;  and  certainly  enough  had  been 
shown  to  support  a  finding  that  when  killed 
he  was  engaged  in  interstate  commerce.  The 
trial  court  refused  the  following  instruc- 
tion: 

"If  M.  A.  Rosenbloom,  at  the  time  of  his 
death,  was  engaged  in  examining  seals  and 
making  record  of  seals  on  cars  being  trans- 
ported interstate  over  the  line  of  defendant 
and  other  Tines  of  connecting  carriers,  and 
if  such  work  was  a  necessary  part  and  cus- 
tomary work,  reasonably  [441]  carried  on 
by  defendant  as  a  part  of  its  business, 
transporting  freight  interstate  over  its  line, 
or  if  he  had  then  just  completed  such  inspec- 
tion of  said  train  and  had  not  yet  completed 
his  record  and  placed  it  in  the  place  where 
usually  kept,  then  you  will  return  a  verdict 
for  the  defendant  on  its  special  plea  that 
plaintiff  has  no  right  to  maintain  this  suit 
in  the  capacity  in  which  she  sues." 

Upon  a  clearly  erroneous  assumption  that 
there  was  nothing  on  which  to  base  such  re- 
quest, the  supreme  court  approved  its  re- 
fusal. The  record  discloses  no  proper  reason 
for  thus  denying  plaintiff  in  error  a  right 
claimed  under  the  Federal  employers^  Ha- 
'  bility  act.    If  when  struck  deceased  was  em- 

940  U.  8. 


ISIS. 


UNITED  STATES  t.  UNITED  STATES  STEEL  CORP. 


Ml-«4a 


pti>7ed  in  inUnUte  commeree,  the  right  of  mod  the  requiBite  Dumber  of  copie*  b«i]iB  on 

TuetntTj   depended   upon   tliHt   act;    and   it  band,  digesti  and  full  indexei  having  been 

only  permits  suit  by  a  personal  representa-  prepared,   and   all   references   to   the   testl- 

ti»e  for  the  benefit  of  surviving  widow  or  ""o"?   "'''=*'   **>*   """'^  ''^1™  ™«iie  In   its 

ImsUnd    and    children    If    there    be    such.  ??'"'""  being  to  the  testimony  a<  conUined 

(Chap,  149.  35  Stat,  at  L.  85,  Comp.  Stat,  [por  otS^r  e.,^°,  Z^ippeal  and  Brror.  V.  L 

1013,  I  8667}  chap.  143,  36  Stat,  at  L.  2S1,  in  Dlxeat   Bap.  Ct.   IBOB.] 

Comp.  Stat.  1913,  j  S662).    It  is  unnecessary  Appeal  —  flUnc  record  —  ext«iuion  <rf 

to  take  up  other  pointa  preaented  by  coun-  time. 

•ell  tlie  purpowi  and  elTect  of  the  Federal  2.  The  Federal  Supreme  Court  wiU  «- 

legislation  has  been  much  discusaed  in  our  *="f  "["  *'T*u7i,      u^^.""*  ?*°*^  "."  *?" 

-JL._»  «^'   i_  .      o^^..^        fv.1               T  P6*'  where  it  thinks  that  such  extension  ia 

recent_opmions.    _Pederi«.   V.  Del.ware,  I.  Sesirable  in  order  that  ample  opportunitj 

~  "'-  a  record  which  shall  b« 


A  W.  R.  Co,  1 


B  U.  S,  148,  57  L.  ed.  1125,  33    ^"afforfeTt 


Sup.  Ct  Bep.  649,  Ann.  Cas.  ini4C,  153, 
N.  C.  C.  A.  77fl;  St.  Louis,  S.  F.  &  T.  R.  Co. 
V.  Seale,  £29  U.  S.  156,  67  L.  ed.  1129,  33 
Sup.  Ct.  Rep.  861,  Ann.  Cas.  1914C,  158; 
North  Carolina  R.  Co.  v.  Zachary,  232  U.  S. 
248,  68  L.  ed.  691,  34  Sup.  Ct.  Bep.  305, 
.\nn.  Cas.  1914C,  159,  9  N.  C.  C.  A.  109; 
Illinoie  C.  R.  Co.  v.  Behrens,  233  U.  S.  473, 
68  L.  ed.  1051,  34  Sup,  Ct.  Rep.  648,  Ann. 
Cas.  1D14C,  ]63;  Seaboard  Air  Line  R.  Co. 
V.  Horton,  233  U.  S.  492,  58  L.  ed.  1062, 
L.R.A.1915C,  1,  34  Sup.  Ct.  Rep.  835,  Ann. 
Gas.  1915B,  475,  8  N.  C.  C.  A.  834;  New 
York  C.  t  H.  B.  B.  Co.  t.  Carr,  238  U.  S. 
2U0,  59  L.  ed.  121)8,  35  Sup.  Ct.  Bep.  T80, 
9  N.  C.  C.  A.  1 ;  Pennsylvania  Co  v.  Donat, 
239  U.  S.  50,  ante,  139',  36  Sup.  Ct.  Rep.  i; 
Southern  R.  Co.  v.  Lloyd,  239  U.  S.  496, 
ante,  402,  38  Sup.  Ct.  Bep.  210;  Shanks  v 
Delaware,  L.  A  W.  R.  Co.  839  U.  S.  566, 
ante,  436,  38  Sup.  Ct.  Rep.  188. 

The  judgment  below  ie  reversed  and  the 
MUM  remanded  to  th«  Supreme  Court  of 
Texas  for  further  proceedings  not  inconsist- 
ent with  thia  opinion.    Beveraed. 


made  up  conformably  to  the  court's  viewa. 

[For  other 


In  DlKCSt  Bup.  Ct. 


»,"' 


Decided  March 


UNITED  STATES  STEEL  CORPORATION 


(See  6.  0.  Reporter's  ed.   442-444.) 
Appeal  —  record  —  testimony  In  nnrra- 
live  form. 

1.  The  requirement  of  equity  rule  76, 
that  the  testimony  be  reduced  to  narrative 
form,  will  not  be  enforced  on  an  appeal  to 
the  Federal  Supreme  Court,  where  the  tes- 
timon;  embraces  thirty  voliimea,  contain- 
ing more  than  12,000  pages,  of  which  about 
one  half  are  devoted  to  tegtimony  taken  be- 
fore the  rule  became  operative,  the  testi- 
mony, by  agreement  of  the  parties,  having 
been   printed   and   bound   as   it   was  talcen. 


Note.— On  the  practice  and  procedure 
governing  the  transfer  of  causes  to  the  Fed- 
eral Supreme  Court  on  writ  of  error  or  ap- 
C«l — tee  note  to  Wedding  v.  lleyler,  66 
F.A.  833. 
•0  L.  «d. 


order  extending  tha 
d  file  the  rao- 
ord  on  an  appeal  from  the  Diatrict  Court 
of  the  United  States  for  the  District  of 
New  JsTSey.  Time  extended  lixty  daya 
from  March  16,  1918. 
Solicitor  GeneraJ  Ditvla  for  the  appllc*- 

Messrs.  Richard  V.  Iilndabnry  and 
I  DKTld  A.  Reed  opposed. 

Hr.  Chief  Justice  White  dellrered  Um 
opinion  of  the  court: 

The  United  States  applied  to  the  court 
twlow  to  extend  the  time  for  filing  the 
record  from  March  19th,  1918,  the  existing 
date,  to  Jul;  Ist,  to  give  it  time  to  complete 
the  reduction  of  the  testimony  te  a  narra- 
tive form,  conformably  to  equity  rule  76.1 
[443]  The  defendant  opposed  the  request 
on  the  ground  that  there  was  doubt  as  te  tlie 
posaibility  of  adequately  reducing  the  testi- 
mony, and  on  the  further  ground  that  it  de- 
sired the  testimony  brought  up  in  original 
shape,  and  because,  under  all  the  circum- 
atencea  of  the  case,  it  should  not  be  goT- 
enied  by  equity  rule  7G.  ^le  court  de- 
clined to  pass  upon  the  application,  but  sug* 
gested  that  the  parties  submit  to  this  oourt 
the  question  whether  equity  rule  75  was, 
under  the  circumBt«ncea,  imperatively  ap- 
plicable, stating,  however,  that  it  had  found 
great  advantage  in  disposing  of  the  case 
from  "having  the  original  testimony  befora 
it,  and  was  of  the  opinion  that  a  like  ad- 
vantage would  be  experienced  by  this  court 
it  the  original  testimony  was  brought  up. 
Tlie   application  before  us  waa  then  madi^ 


[Equity  rule  76  deals  with  the  reduction 
and  preparation  of  the  record  on  appeal. 
See  ^6  U.  S.  671,  07  L.  ed.  1650.— Ed.] 


443,444 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  Ikm, 


and  is  resisted  on  the  grounds  which  were 
urged  against  it  below. 

The  facts  are  these:  The  testimony  was 
taken  before  an  examiner  and  embraces  30 
volumes,  containing  12,151  pages.  Of  these, 
14  volumes,  or  about  6,900  pages,  embrace 
testimony  taken  before  equity  rule  75  be- 
came operative.  By  agreement  between  the 
parties,  aa  the  testimony  was  taken  it  was 
printed  and  bound,  and  the  requisite  number 
of  copies  of  the  volumes  are  on  hand  to 
serve  as  part  of  the  record  in  this  court  on 
the  appeal.  To  facilitate  the  court  below, 
digests  and  full  indexes  were  prepared  by 
counsel,  and  all  the  references  to  the  testi- 
mony made  by  the  court  below  in  its  opin- 
ion are  directed  to  the  testimony  as  con- 
tained in  the  bound  volumes. 

Under  the  facts  which  we  have  stated,  we 
are  of  opinion  that  the  case  is  an  exception 
to  equity  rule  75,  and  should  not  be  con- 
trolled by  it,  and  hence  that  the  testimony 
in  its  original  form  as  contained  in  the 
volumes  already  printed  should  constitute  a 
part  of  the  record  on  appeal,  and  therefore 
there  is  no  reason  to  grant  the  request  for 
time  based  upon  the  contrary  assumption. 
While  this  is  true,  however,  in  order  that 
there  may  be  ample  opportunity  [444]  to 
file  the  record  made  up  conformably  to  the 
views  which  we  have  just  stated,  the  time 
for  filing  the  record,  which  was  extended  by 
this  court  on  March  15th,  pending  this 
application,  will  be  now  extended  sixty  days 
from  that  date. 
And  it  is  so  ordered. 


caboose  and  was  killed  *there  when  a  paaaoi' 
ger  train,  which  he  knew  was  closely  fol* 
lowing,  ran  into  the  standing  train,  ainei 
his  was  the  causal  negligence,  even  if  n^- 
ligence  could  be  imput^  to  the  carrier  fron 
the  pulling  out  of  the  drawbar  which  caused 
the  train  to  break  in  two,  there  being  nc 
claim  that  the  passenger  train  was  n^^* 
gently  run. 

[For  other  cases,  see  Master  and  Servant.  It 
c:    Proximate    Cause,    in    Digest    Sup.    Ct 


Submitted 


[No.  196.] 

January     26,     1016. 
March  20,  1016. 


Decided 


GREAT    NORTHERN     RAILWAY     COM- 
PANY, Plff.  in  Err., 

V. 

J.  H.  WILES,  as  Administrator  of  the  Es- 
tate of  Dennis  E.  Wiles,  Deceased. 

(See  S.  C.  Reporter's  ed.  444-448.) 

Master  and  servant  —  employers'  lia- 
bility —  comparative  negligence  — 
proximate  cause. 

There  is  no  room  for  the  application 
of  the  rule  of  comparative  negligence  estab- 
lished by  the  employers'  liability  act  of 
April  22,  1908  (35  Stat,  at  L.  05,  chap.  149, 
Comp.  Stat.  1913,  §  8657),  where  the  rear 
brakeman  of  a  parted  freight  train,  disre- 
garding his  duty  to  protect  the  rear  of  his 
train  by  going  back  a  short  distance  and 
giving  the  warning  signals  which  the  car- 
rier's   rules    required,    remained    in    the 

NOTV. — On  the  constitutionality,  applica- 
tion, and  effect  of  the  Federal  employers' 
liability  act — see  iiotes  to  Lamphere  v.  Ore- 

fon  R.  &  Nav.  Co.  47  L.R.A.(N.S.)  38,  and 
eaboard  Air  Line  R.  Co.  v.  Horton,  L.RJL. 
1016C,  47. 
782 


IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Minnesota  to  review  a  judg- 
ment which,  reversing  a  judgment  of  tht 
District  Court  for  the  County  of  Ottertail, 
directed  the  entry  of  judgment  for  plaintiff 
in  an  action  brought  under  the  Federal  em- 
ployers' liability  act.  Reversed  and  t^ 
manded  for  further  proceedings. 

See  same  case  below,  125  Minn.  348,  147 
N.  W.  427,  5  N.  C.  C.  A.  60. 

The  facts  are  stated  in  the  opinion. 

Mr.  E.  C.  Llndley  submitted  the  came 
for  plaintiff  in  error.  Mr.  M.  L.  Country- 
man was  on  the  brief: 

The  undisputed  facts  show  that  the  sole 
proximate  cause  of  the  collision  and  the 
death  of  plaintiff's  decedent  was  his  failure 
to  perform  his  duty  as  a  flagman  The  pull- 
ing out  of  a  drawbar,  and  the  stopping  of 
the  train,  caused  thereby,  merely  created 
a  condition  out  of  which  arose  his  duty  to 
act. 

Louisiana  Mut.  Ins.  Co.  v.  Tweed,  7 
Wall.  44,  19  L.  ed.  65;  Washington  &  G.  R. 
Co.  V.  Hickey,  166  U.  S.  621,  41  L.  ed.  1101, 
17  Sup.  Ct.  Rep.  661,  1  Am.  Neg.  Rep.  661 ; 
Memphis  &  C.  R.  Co.  v.  Reeves,  10  WalL 
176,  19  L.  ed.  909;  Fezler  v.  Williams  &  8. 
F.  R.  Co.  85  Minn.  252,  88  N.  W.  746; 
Schreiner  v.  Great  Northern  R.  Co.  86  Minn. 
245,  58  L.R.A.  75,  90  N.  W.  400;  Ellington 
v.  Great  Northern  R.  Co.  96  Minn.  176, 
104  N.  W.  827,  19  Am.  Neg.  Rep.  342; 
Mehalek  v.  Minneapolis  St.  P.  &  S.  Ste.  M. 
R.  Co.  105  Minn.  128,  117  N.  W.  250; 
Nelson  v.  Chicago,  M.  &  St.  P.  R.  Co.  30 
Minn.  74,  14  N.  W.  360;  Groff  v.  Duluth 
Imperial  Mill  Co.  58  Minn.  333,  50  N.  W. 
1049;  Johanson  v.  Howells,  55  Minn.  61, 
56  N.  W.  460 ;  Weisel  v.  Eastern  R.  Co.  79 
Minn.  245,  82  N.  W.  576,  7  Am.  Neg.  Hep. 
635;  Ohristianson  v.  Chicago,  St.  P.  M.  A 
O.'  R.  Co.  67  Minn.  94,  69  N.  W.  640,  M 
Am.  Neg.  Cas.  314;  Strobeck  v.  Bren,  OS 
Minn.  428,  101  N.  W.  795;  Russell  v.  Ger- 
man F.  Ins.  Co.  100  Minn.  528,  10  L.R.A. 
(N.S.)  326,  111  N.  W.  400;  Cooley,  Torts,  M 

940  U.  S. 


J915. 


GREAT  NORTHERN  R.  CX).  v.  WILES. 


445,  446 


ed.  pp.  73-76;  Scheffer  t.  Washington  City, 
v.  M.  &  O.  S.  R.  Co.  105  U.  S.  249,  26  L.  ed. 
1070;  St.  Louis  &  S.  F.  R.  Co.  v.  Conarty, 
238  U.  S.  243,  50  L.  ed.  1290,  35  Sup.  Ct. 
Rep.  785. 

Uhe  evidence  wholly  fails  to  establish 
negligence  in  the  pulling  out  of  the  draw- 
bar. Under  the  Federal  liability  act,  negli- 
gence must  be  afl&rmatively  proven,  and  the 
doctrine  of  ret  ipsa  loquitur  cannot  be  in- 
voked. 

Texas  &  P.  R.  Co.  y.  Barrett,  166  U.  S. 
617,  41  L.  ed.  1136,  17  Sup.  Ct  Rep.  707,  1 
Am.  Neg.  Rep.  745;  Patton  v.  Tocas  &  P.  R. 
Co.  179  U.  S.  658,  45  L.  ed.  361,  21  Sup. 
Ct.  Rep.  275;  Looney  v.  Metropolitan  R. 
Co.  200  U.  S.  480,  50  L.  ed.  564,  26  Sup. 
Ct.  Rep.  303,  19  Am.  Neg.  Rep.  627;  Sea- 
board Air  Line  R.  Co.  v.  Moore,  228  U.  S. 
433,  57  L.  ed.  907,  33  Sup.  Ct.  Rep.  580; 
Southern  Railway  Carolina  Div.  v.  Bennett, 
233  U.  8.  80,  58  L.  ed.  860,  34  Sup.  Ct. 
Rep.  566;  Central  Vermont  R.  Co.  v.  White, 
238  U.  S.  507,  59  L.  ed.  1433,  35  Sup.  Ct. 
Rep.  865,  9  N.  C.  C.  A.  265;  Peirce  v.  Kile, 
26  0.  C.  A.  201,  53  U.  S.  App.  291,  80  Fed. 
865;  Bowes  v.  Hopkins,  28  C.  C.  A.  524,  56 
U.  S.  App.  217,  84  Fed.  767;  Hodges  v. 
Kimball,  44  C.  C.  A.  193,  104  Fed.  745; 
Mexican  C.  R.  Co.  v.  Townsend,  52  C.  C.  A. 
369,  114  Fed.  737;  O'Connell  v.  Pennsyl- 
vania Co.  55  C.  0.  A.  483,  118  Fed.  989; 
Mountain  Copper  Co.  v.  Van  Buren,  59 
C.  C.  A.  279,  123  Fed.  61;  Chicago  &  N.  W. 
R.  Co.  V.  O'Brien,  67  C.  C.  A.  421,  132  Fed. 
593;  Shandrew  v.  Chicago,  St.  P.  M.  &  0. 
R.  Co.  73  C.  C.  A.  430,  142  Fed.  320;  North- 
ern P.  R.  Co,  V,  Dixon,  71  C.  C.  A.  555,  139 
Fed.  737,  19  Am.  Neg.  Rep.  637;  Butler  v. 
Frazee,  25  App.  D.  C.  392. 

Mr.  W.  R.  Duxbnry  submitted  the  cause 
for  defendant  in  error.  Mr.  Lyle  Pettijohn 
was  on  the  brief: 

This  court  will  not  scrutinize  the  whole 
record  for  the  purpose  of  discovering 
whether  it  may  not  be  possible,  by  a  minute 
analysis  of  the  evidence,  to  draw  therefrom 
inferences  which  may  possibly  conflict  with 
the  conclusion  of  the  courts  below  as  to  the 
tendencies  of  the  proof. 

Chicago  Jimction  R.  C6.  v.  King,  222  U. 
8.  222,  56  L.  ed.  173,  32  Sup.  Ct.  Rep.  79. 

Hie  application  of  the  doctrine  rea  ipsa 
loquitur  depends  upon  and  is  determined  by 
the  circumstances;  and,  the  circumstances 
warranting,  it  applies  as  well  in  cases  be- 
tween employer  and  employee  as  in  other 
relations. 

Byers  t.  Carnegie  Steel  Co.  16  L.RJl. 
(N.S.)  214,  86  C.  C.  A.  347,  159  Fed.  347; 
Lucid  V.  B,  I.  DuPont  De  Nemours  Powder 
Co.  L.R.A.  — .  — ,  118  C.  C.  A.  61,  199  Fed. 
377;  Southern  Railway-Carolina  Div.  v. 
•0  L.  ed. 


Bennett,  233  U.  S.  80,  58  L.  ed.  860,  34  Sup. 
Ct.  Rep.  566;  Sweeney  v.  Erving,  228  U.  S. 
233,  57  L.  ed.  815,  33  Sup.  Ct.  Rep.  416,  Ann. 
Cas.  1914D,  905. 

Mr.  Justice  McKenna  delivered  the  opin- 
ion of  the  court: 

Action  for  damages  for  the  killing  of  one 
Dennis  E.  Wiles,  brought  by  the  adminis- 
trator of  his  estate,  who  is  also  his  father 
and  next  of  kin.  It  was  brought  under  the 
employers'  liability  act  of  April  22,  1908 
(35  Stat,  at  L.  65,  chap.  149),  as  amended 
April  5,  1910  (36  Stat,  at  L.  291,  chap.  143, 
Comp.  Stat.  1913,  §  8662). 

Wiles  was  a  freight  brakeman  in  the  em- 
ploy of  the  railway  company  in  interstate 
commerce,  the  company  being  an  interstate 
common  carrier. 

There  was  a  verdict  for  plaintiff  in  the 
sum  of  $650.  Upon  motion  of  defendant  the 
court»  expressing  the  view  that  Wiles's 
negligence  was  the  proximate  cause  of  the 
accident  which  resulted  in  his  death,  ren- 
dered judgment  that,  notwithstanding  the 
verdict,  plaintiff  tske  nothing  by  his  action, 
that  the  same  be  dismissed,  and  thst  the 
railway  company  recover  of  plaintiff  $36.52 
costs. 

The  judgment  was  reversed  by  the  su- 
preme court  of  the  state  and  judgment 
ordered  to  be  entered  on  the  verdict. 

The  only  issue  is  as  to  the  negligence  of 
the  railway  company  and  the  contributory 
negligence  of  the  deceased,  and  the  causal 
relation,  if  either  existed,  to  the  death  of 
the  deceased. 

The  determining  facts  of  the  case  are  as 
follows : 

Deceased  was  a  rear  brakeman  on  a 
freight  train  of  the  railway  company  pro- 
ceeding easterly  between  Grotto  and  [446] 
Skykomish,  Washington.  After  having  passed 
a  curve  in  the  road  the  train  broke  in  two 
by  the  drawbar  pulling  out  of  the  sixth  car 
from  the  engine,  which  caused  the  train  to 
stop  instantly.  It  was  run  into  shortly 
after  (from  3  to  5  minutes,  it  was  testi- 
fied) by  a  passenger  train  drawn  by  two 
engines.  The  night  was  pretty  dark  and  thb 
weather  a  little  misty.  At  the  place  of  col- 
lision the  track  was  obstructed  by  a  very 
sharp  curve  and  a  bluff  on  the  right-hand 
side  for  about  five  box-car  lengths,  and  the 
rear  end  of  the  freight  train  at  that  place 
could  not  be  seen  more  than  five  box-car 
lengths  away.  On  the  left-hand  side  of  the 
engine,  which  is  the  fireman's  side,  the 
track  could  not  be  seen  more  than  a  car 
length  ahead  because  that  would  be  on  the 
outside  Of  the  curve.  The  engineer  of  the 
passenger  train  did  not  know  of  the  exist- 
ence of  the  freight  train  ahead  and  no  negli- 
gence is  attributed  to  him.    The  deceased 

788 


44^-448 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  TwaM, 


and  the  conductor  of  the  freight  train  were 
in  the  caboose  and  both  were  killed.  What 
caused  the  pulling  out  of  the  drawbar  was 
not  shown,  nor  was  there  proof  that  it  was 
defective,  or  that  the  company  was  negli- 
gent in  the  care  or  use  of  it. 

The  head  brakeman  of  the  freight  train 
testified  that  the  train  stopped  immediate- 
ly upon  the  pulling  out  of  the  drawbar,  that 
he  descended  from  the  train  and  hastened 
back  to  the  caboose  for  a  chain,  and  that  he 
saw  the  headlight  of  the  passenger  train 
as  it  came  around  the  curve.  He  further 
testified  that  it  was  Wiles's  duty  to  have 
gone  back  to  protect  the  rear  end  of  his 
train  at  the  time  the  passenger  train  was 
due  out  of  the  station  in  the  rear,  and  that 
this  applied  whether  the  delayed  inferior 
train  which  was  ahead  was  running  or 
standinig  still;  that  it  was  the  duty  of 
Wiles  to  have  gone  back  a  sufficient  dis- 
tance to  guarantee  full  protection  U>  the 
rear  of  his  train,  and  that  the  engineer  of 
the  freight  train,  at  the  time  the  train 
broke  in  two,  signaled  the  rear  brakeman  to 
go  back  and  protect  the  rear  end  of  his  train. 
The  same  testimony  as  [447]  to  the  duty  of 
Wiles  was  given  by  another  witness.  It  ap- 
peared also  from  the  testimony  that  the 
freight  train  was  losing  time  by  slipping, 
and  that  Wiles  knew  the  time  that  the  pas- 
senger train  was  due  to  leave  Grotto  station, 
and  he  should  have  dropped  off  or  dropped 
fuses  on  the  track  to  notify  the  engineer 
of  the  passenger  train  that  the  freight  was 
running  slow.  The  fuses  are  of  red  and 
yellow  lights ;  the  red  means  to  stop  for  ten 
minutes,  the  yellow  means  to  bring  the 
train  under  control  and  keep  it  under  con- 
trol until  the  next  station  is  reached. 

The  rules  of  the  railway  company  were 
put  in  evidence  as  follows: 

''Rule  99.  When  a  train  stops  or  is  de- 
layed by  any  circumstance  under  which  it 
may  be  overtaken  by  another  train,  the  flag- 
man must  go  back  immediately  with  stop 
signals  a  sufficient  distance  to  insure  full 
protection.  When  recalled  he  may  return  to 
his  train,  first  placing  two  torpedoes  on  the 
rail  six  rail  lengths  apart,  or  a  lighted 
fusee  in  the  center  of  the  track  when  condi- 
tions require." 

"Ride  100.  If  the  train  should  part 
while  in  motion  trainmen  must,  if  possible, 
prevent  damage  to  the  detached  portions. 
The  signals  prescribed  by  13D  and  15F  must 
be  given." 

18D  is  the  lantern  signal  or  hand  signal, 

either  one;  15F  is  the  whistle  signal.    Rule 

100  applied  to  what  should  be  done  by  the 

members  of  the  train  crew  for  the  protection 

{^  tbiB  aepMrated  portions  of  the  train  itself. 

TS4 


Rule  99  applied  to  what  should  be  done  for 
the  protection  of  other  trains  approaching. 

The  supreme  court  applied  the  rule  of  res 
ipsa  loquitur  and  justified  a  submission  to 
the  jury  of  the  negligence  of  the  railway 
company  as  a  deduction  from  the  pulling 
out  of  the  drawbar,  and  the  proportion  of 
its  causal  relation  to  the  death  of  Wiles  to 
the  amount  of  n^ligence  attributable  to 
him,  and  reversed  the  action  of  the  trial 
court,  entering  judgment  for  the  company 
notwitlistanding  the  verdict. 

[448]  The  application  of  the  doctrine  to 
cases  like  that  at  bar  is  disputable.  Patton 
V.  Texas  k  P.  R,  Co.  179  U.  S.  658,  45  L.  ed. 
361,  21  Sup.  Ct.  Rep.  276 ;  Looney  v.  Metro- 
politan R.  Co.  200  U.  S.  480,  486,  50  L.  ed. 
564,  568,  26  Sup.  Ct.  Rep.  303,  19  Am.  Neg. 
Rep.  627.  We,  however,  do  not  have  to  go 
farther  than  to  indicate  the  dispute.  The 
ease  at  bar  is  not  solved  bv  the  doctrine. 
There  is  no  justification  for  a  comparison 
of  negligences  or  the  apportioning  of  their 
effect.  The  pulling  out  of  the  drawbar  pro- 
duced a  condition  which  demanded  an  in- 
stant performance  of  duty  by  Wiles, — a  duty 
not  only  to  himself,  but  to  others.  The  rules 
of  the  company  were  devised  for  such  con- 
dition and  provided  for  its  emergency. 
Wiles  knew  them,  and  he  was  prompted  to 
the  performance  of  the  duty  they  enjoined 
(the  circumstances  would  seem  to  have 
needed  no  prompting)  by  signals  from  the 
engineer  when  tlie  train  stopped.  He  dis- 
regarded both.  His  fate  gives  pause  to 
blame,  but  we  cannot  help  pointing  out  that 
the  tragedy  of  the  collision  miglit  have  been 
appalling.  He  brought  death  to  himself  and 
to  the  conductor  of  his  train.  His  neglect 
might  have  extended  the  catastrophe  to  the 
destruction  of  passengers  in  the  colliding 
train.  How  imperative  his  duty  was  is 
manifest.  To  excuse  its  neglect  in  any  way 
would  cast  immeasurable  liability  upon  the 
railroads,  and,  what  is  of  greater  concern, 
remove  security  from  the  lives  of  those  who 
travel  upon  them ;  and  therefore  all  who  are 
concerned  with  their  operation,  however 
high  or  low  in  function,  should  have  a  full 
and  an  anxious  sense  of  responsibility. 

In  the  present  case  there  was  nothing  to 
extenuate  Wiles's  negligence;  there  was 
nothing  to  confuse  his  judgment  or  cause 
hesitation.  His  duty  was  as  clear  as  ita  per- 
formance was  easy.  He  knew  the  danger  of 
the  situation  and  that  it  was  imminent; 
to  avert  it  he  had  only  to  descend  from  his 
train,  run  back  a  short  distance,  and  give 
the  signals  that  the  rules  directed. 

Judgment  reversed  and  cause  remanded 
for  further  proceedings  not  inoonsistent 
with  this  opinion. 

940  V.  8. 


CHICAGO,  E.  I.  ft  F.  B.  CO.  «.  BOND. 


[M«]  CHICAQO,  SOCK  ISLAND,  &,  PA- 
CIFIC RAILWAY  COMPANY,  Flfl.  in 
Kit., 


(Sm  S.  a  Bepoiter'a  ed.  449-407.) 

Hxsler  and  aerTRnt  —  when  relntloo 
exists  —  Independent  contractor  — 
employers'  Unblllty. 

1.  A  oontToI  OT«r  resulU  only,  which  ii 
inetmsiHtent  with  the  existence  of  anj  rela- 
tion of  master  and  aervant  to  which  the 
Federal  employers'  iiabilitj'  act  of  April  22, 
1008  (3fi  Stat,  at  L.  65,  chap.  149,  Comp. 
Stat.  1913,  3  aSS7),  could  apply,  ii  what 
was  reserved  to  an  int«Titate  railway  car- 
rier in  a  contract  with  a  peraan  oalled  the 
original  contractor,  b;  which  he  is  to  han- 
dle at  the  railway  compsjiy's  coal  chutes 
the  coal  required  for  ita  engines,  furnish- 
ing the  necessary  labor  for  that  purpoae,  is 
to  break  the  coal  ijt  suitable  sizes,  is  to  un- 
load wood  from  car  to  storage  piles,  and 
is  to  load  cinders  on  cars  and  unload  aand, 
where  the  manner  of  the  work  is  under  hU 
control,  to  be  done  by  him  and  his  em- 
ployees, and  be  Is  made  reaponaible  for  the 
faithful  performance  of  bia  agreement,  in- 
curring the  penalty  of  inatant  termination 
of  the  contract  tor  nonperformance,  the  con- 
tract providing  for  payment  on  the  baaia 
of  tons,  cords,  or  yards,  and  the  "con- 
tractor" expressly  assuming  all  liability  for 
injuries  to  himself  or  to  his  property,  or 
to  his  employees  or  third  persons,  and  there 
being  an  explicit  provision  that  the  carrier 
"reeervea  and  holds  no  control  over  him  in 
the  doing  of  such  work  other  than  as  to  the 
results  to  be  accomplished." 
[For  Dtber  cbhi,  see  Master  and  Servant,  I. 
■,  Id  Dlsest  Sup.  Ct.  IBOS.] 

Master  and  servant  —  emplofera*  lia- 
bility —  contract  exemption. 

2.  No  evasion  of  the  provision  of  the 
employers'  liability  act  of  April  22,  1008 
(35  SUt.  at  L.  86,  chap.  140,  Comp  SUt. 
1013,  %  B6611,  g  S,  that  "any  contract, 
rule,  regulation,  or  device  whatsoever,  the 
purpose  and  intent  of  which  shall  be  to  en- 
able any  common  carrier  to  exempt  itself 
from  any  liability  created  by  this  act  shall 
to  that  extent  be  void,"  results  from  the 
making  of  a  contract  by  an  interstate  rail- 
way carrier  under  which  the  work  of  han- 
dling at  the  railway  company's  coal  chutes 
the  coal  required  for  its  engines,  and  of 
breaking  the  coal  into  auitable  aizea,  and 
of  unloading  wood  from  cars  to  atorage 
piles,  and  of  loading  cinders  from  right  of 
way  on  cars,  and  of  unloading  aand  from 
ears  at  designated  points,  is  to  be  per- 
formed by  an  Independent  contractor  who 

Non. — On  the  constitutionality,  appliea- 
ti<m,  and  effect  of  the  Federal  employers' 
liability  act — see  notes  to  Lamphere  t.  Ore- 
gon R.  &  Nav.  Co.  47  L.RA.(N.8.)  38,  and 
Seaboard  Air  Line  R.  Co.  v.  Horton,  LJLA. 
M15C.  47. 
••  L.  ed. 


expressly   aianmes  all   liability   for   injnry 
to  himself  or  hia  property,  or  to  .bia  em* 

floyees  or  to  third  parsons. 
For  other  caaea,  see  Uaster  and  SB^van^  II. 
a.  in  DlBcst  Sap.  Ct.  1»08.1 

[No.  466.] 


IN  ERROR  to  the  Supreme  Conrt  of  the 
State  of  Oklahoma  to  review  a  judgment 
which  afRrmed  a  judgment  of  the  District 
Court  for  Oarfleld  County,  in  that  aUte,  in 
favor  of  plaintiff  in  an  action  brought  un- 
der the  Federal  employers'  liability  act. 
Reversed  and  remanded  for  further  proeeed- 

See  same  eas«  below;  —  Okla.  — ,  148 
Pac.  103. 

The  facts  are  stated  in  the  opinion. 

Mr.  B.  J.  Roberts  argued  the  cause,  and, 
with  Measrs.  J.  O.  Gamble,  M.  L.  Bell,  C. 
0.  Blake,  W.  H.  Moore,  and  K.  W.  SharUI, 
flied  a  brief  for  plaintiff  in  error: 

The   deceased   was   an    independent   con- 

Nsw  Orleans,  M.  A  C.  R.  Co.  t.  Hauning, 
IS  Wall.  640,  660,  21  L.  ed.  220,  222,  7  Am. 
Neg.  Cas.  300;  Singer  Ut^.  Oo.  v.  Rahn, 
182  U.  S.  518,  38  L.  ed.  440,  10  Sup.  Ct 
Rep.  176;  Casement  v.  Brown,  148  U.  S. 
61B.  3T  L  ed,  562,  13  Sup.  Ct.  Rep.  672-. 
Weinman  v.  De  Pahna,  232  U.  S.  S71,  &S 
L.  ed.  733,  34  Bup.  Ct.  Rep,  370;  Arthur  v. 
Texas  A  P.  R,  Co.  71  C.  C.  A.  301,  139  Fed. 
127;  Fuller  t.  Citizens'  Nat.  Bank,  16  Fed. 
876;  Cox  r.  PhiladelphU,  166  Fed.  650; 
Riedel  v.  Moran,  Fitzaimmons  Co.  103  Mich. 
202,  61  N.  W.  609;  Euehn  v.  Milwaukee,  92 
WU.  263,  65  N.  W,  1030;  Voabeck  v.  Kel- 
logg, 78  Hinn.  176,  80  N.  W.  «67,  7  Am. 
Neg.  Rep.  ii;  LouiaTilte  t  N.  R.  Oo.  t. 
Smith,  134  Ky.  47,  110  S.  W.  241;  Salliotta 
T.  King  Bridge  Co.  S6  L.R.A.  620,  5B  C.  C. 
A.  468,  122  Fed.  3T8;  Morning  v.  Cramp, 
170  Fed.  364;  United  Oas  Impror.  Co.  v. 
Larsen,  105  C,  C.  A.  486,  182  Fed.  620; 
Boardman  v,  Crelghton,  OS  Me.  1G4,  40  Atl. 
663;  Pioneer  Fireproof  Constr,  Ca  v.  Han- 
sen, 176  ni.  100,  62  N.  E.  17;  Sullivan  v. 
New  Bedford  Oas  A  Ediaon  Light  Co.  100 
Mass.  288,  76  N.  E.  1048;  Porter  v.  Tenn- 
essee Coal,  Iron  A  R.  Co.  177  Ala.  400, 60  So. 
265;  Texas  Traction  Co.  t.  Qeorge,  —  Tex. 
Civ.  App.  — ,  149  S.  W.  438;  Chicago,  R,  I. 
A  P.  R.  Co.  V.  Bennett,  36  Okla.  368,  LRJl. 
— ,  — ,  128  Pac.  706;  Chas.  T,  Derr  Constr. 
Co.  T.  Oebuth,  20  Okla.  S38,  120  Pac.  26S; 
Branstrator '  T.  Kednik  A  W.  R.  Co.  108 
Iowa,  877,  70  N.  W.  130;  Atchison  T.  A  U. 
F.  R.  Co.  V.  Dickens,  7  Ind.  Terr.  16,  103  S. 
W.  760;  Richmond  t.  Sltterding,  66  LJtA. 
446,  note;  CoAran  v.  Rlea,  AnluG«».\«\3A., 


460-452 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbsm, 


573,  note;  Messmer  v.  Bell  &  C.  Co.  10  Ann. 
Cas.  3,  note;  Foster  v.  Chicago,  197  111.  264, 
64  N.  E.  322;  Good  v.  Johnson,  38  Colo.  440, 
8  L.RJL.(N.S.)  896,  88  Pac.  439;  Larsen  v. 
Home  Teleph.  Co.  164  Mich.  295,  129  N.  W. 
894;  Perkins  ▼.  Blauth,  163  Cal.  782,  127 
Pac.  50;  Qiacomini  v.  Pacific  Lumber  Co.  5 
Cal.  App.  218,  89  Pac  1059;  Toomey  v. 
Donovan,  158  Mass.  232.  33  N.  £.  396; 
Omaha  Bridge  &  Terminal  R.  Co.  v.  Harga- 
dine,  5  Neb.  Unof.  418,  98  N.  W.  1071,  76 
Neb.  729,  107  N.  W.  864 ;  Dublin  v.  Taylor, 
B.  &  H.  R.  Co.  92  Tex.  535,  50  S.  W.  120; 
Vickers  v.  Kanawha  &  W.  V.  R.  Co.  64  W. 
Va.  474,  20  L.R.A.(N.S.)  793,  131  Am.  St. 
Rep.  929,  63  S.  E.  367. 

Messrs.  J.  G.  Gamble,  R.  J.  Roberts,  M.  L. 
BeU,  C.  0.  Blake,  W.  H.  Moore,  K.  W. 
Shartel,  and  T.  P.  Littlepage  also  tiled  a 
brief  for  plaintiff  in  error. 

Mr.  John  O.  Moore  submitted  the  cause 
for  defendant  in  error: 

Turner  was  an  employee,  and  not  an  in- 
dependent contractor. 

Atlantic  Transport  Co.  v.  Coneys,  28  C.  C. 
A.  388,  51  U.  S.  App.  570,  82  Fed.  177;  4 
Words  k  Phrases,  title  "Independent  Con- 
tractors;" Moll,  Independent  Contractors,  77. 

[450]  Mr.  Justice  McKenna  delivered 
the  opinion  of  the  court: 

Action  for  damages  caused  by  the  railway 
company  by  the  killing  of  the  deceased, 
William  L.  Turner,  through  the  negligence, 
it  is  alleged,  of  the  company.  It  was 
brought  in  the  district  court  of  Garfield 
county,  Oklahoma,  and  invoked  the  benefits 
of  the  employers'  liability  act  of  Congress 
of  April  22,  1908  (35  SUt.  at  L.  65.  chap. 
149),  as  amended  April  5,  1010  (36  Stat,  at 
L.  291,  chap.  143,  Comp.  Stat.  191^,  §  8662). 
The  case  was  removed  on  petition  of  the 
railway  company  to  the  United  States  dis- 
trict court  for  the  western  district  of  Okla- 
homa, and  remanded  by  that  court  to  the 
state  court.  There  an  amended  petition 
was  filed  by  plaintiff  in  the  action,  to  which 
an  answer  was  filed. 

After  answer  the  case  was  tried  to  a  jury, 
which  returned  a  verdict  for  the  sum  of 
$7,583,  distributed  in  certain  proportions 
among  those  dependent  upon  the  deceased. 
Judgment  was  entered  upon  the  verdict  and 
sustained  by  the  supreme  court  of  the  state. 

The  case  went  to  the  jury  upon  the  effect 
of  certain  contracts  between  deceased  and 
the  company,  whether  he  was  the  com- 
pany's servant  or  a  contractor  with  it,  and 
whether,  if  he  was  the  eervanl^  of  the  com- 
pany, it  was  guilty  of  negligence,  or  whether 
he  was  guilty  of  contributory  negligence. 

The  facts  are  not  much  in  dispute.  The 
company  is  an  interstate  oonunon  carrier 
78C 


I  and  its  line  runs  through  the  limits  of  the 
I  city  of  Enid,  Garfield  county,  state  of  Okla- 
homa. Within  the  city  there  are  six 
parallel  tracks  which  run  nearly  from  the 
north  to  the  south,  bearing  as  they  proceed  a 
little  to  the  west.  At  the  south  end,  near 
their  termination,  are  located  coal  diutes, 
into  the  pockets  or  tipples  of  which  coal  Is 
shoveled  from  cars  set  on  the  chutes  lor  the 
use  of  all  engines,  local  and  interstate.  The 
city  of  Enid  has  the  power  to  establish  and 
[451]  did  establish  by  ordinance  a  speed 
limit  of  10  miles  an  hour  for  all  trains 
within  its  limits,  beyond  which  it  was  un- 
lawful to  proceed. 

The  relation  of  Turner  to  the  railroad 
company  was  under  two  contracts,  one 
dated  November  1,  1910,  the  other  October 
1,  1911.  In  the  first  contract  the  railroad 
company  is  party  of  the  first  part  and  Turn- 
er party  of  the  second  part  and  is  called 
"contractor."  The  covenants  of  one  are 
made  the  consideration  for  the  covenants  of 
the  other,  and  Turner,  as  contractor,  agrees 
first  "to  furnish  all  the  labor  required  and 
necessary  to  handle;  and  (a)  to  handle  all 
the  coal  required  by  the  company  at  Enid, 
from  either  open  or  closed  cars,  or  both, 
and  to  place  the  same  in  coal-chute  pockets 
of  the  company;  to  gather  up  all  coal  that 
falls  from  the  coal-chute  pockets  to  the 
ground,  and  place  the  same  on  cars  or  en- 
gines,  as  desired  by  the  company,  (b)  To 
break  all  coal  to  the  size  of  4-inch  cubes  or 
less  before  delivery  to  chutes  for  engine  use, 
and  to  imload  all  coal  for  stationary  boilers, 
(c)  To  unload  wood  from  cars  to  storage 
piles  located  on  company's  right  of  way  in 
Enid,  (d)  To  load  cinders  from  the  right 
of  way  to  cars  at  points  designated  by  the 
company,  (e)  To  unload  sand  from  cars 
furnished  by  the  company  at  points  desig- 
nated by  it. 

2d.  The  company  agrees  to  pay  for  the 
services  enumerated  in  certain  designated 
numbers  of  cents  per  ton,  or  eord,^or  yard, 
as  the  case  may  be,  to  be  paid  upon  esti- 
mates and  records  of  the  company. 

3d.  Contractor  agrees  to  maintain  a  suf- 
ficient supply  of  coal  in  the  coal  chutes  and 
break  or  crack  all  coal  to  suitable  sizes. 

4th.  Contractor  expressly  assumes  all  lia- 
bility for  injuries  to  or  death  of  persons  in 
his  employ,  or  loss  or  injury  to  his  prop- 
erty, whether  caused  by  the  negligence  ot 
the  company,  its  agents  or  employees,  and  he 
covenants  to  save  the  company  harmless  on 
account  thereof,  or  for  [452]  or  on  account 
of  any  injury  to  or  death  of  any  person  em- 
ployed by  him  when  and  while  such  persons 
may  be  in  or  about  the  cars,  engines,  and 
tracks  of  the  company,  "and  any  injury  to 
said  contractor  while  performing  any  serv- 
ices under  this  contract  which  might  be  or 

S40  U.  8. 


1915. 


CHICAGO,  R.  I.  &  P.  K.  CO.  t.  BOND. 


462-464 


hMY%  been  delegated  to  his  agent  or  em- 
pli^ees."  And  the  contractor  expresslj  at- 
■nmea  all  liability  for  injury  to  or  death  of 
third  persons,  including  the  employees  of 
the  company,  occasioned  by  any  of  his  acts, 
and  the  company  shall  not  be  liable  to  him 
in  case  of  his  death  or  injury  while  em- 
ployed in  the  work  set  forth. 

5th.  Punctuality  of  performance  is  stipu- 
lated for;  (6th)  the  contract  to  continue 
until  terminated,  as  it  may  be  by  either 
party  upon  fifteen  days'  notice;  (7th)  or 
upon  failure  of  contractor  to*  perform  his 
duties,  at  the  option  of  the  company,  with- 
out being  liable  in  damages  therefor,  of 
which  failure  the  company  shall  be  the  sole 
judge;  (8th)  the  company  to  furnish r  the 
necessary  tools  for  the  performance  of  the 
stipulated  services. 

9th.  It  is  "agreed  and  understood  that 
the  contractor  shall  be  deemed  and  held  as 
the  original  contractor,  and  the  railway 
company  reserves  and  holds  no  control  over 
him  in  the  doing  of  such  work  other  than 
as  to  the  results  to  be  accomplished." 

10th.  The  company  shall  keep  a  record  of 
all  coal  delivered,  and  shall  make  settle- 
ments and  pay  the  contractor  for  handling 
the  coal  upon  the  basis  of  such  handling, 
and  the  contractor  shall  make  daily  reports 
of  the  ears  unloaded  by  him,  and  shall  re- 
ceive, collect,  and  deliver  to  the  duly 
authorized  representative  of  the  company  a 
ticket  from  each  engineman,  hostler,  or 
other  employee,  showing  the  number  of  tons 
of  coal  delivered  to  any  engine;  (11th)  pay- 
ment of  the  work  to  be  made  monthly ;  and 
(12th)  the  contract  and  all  the  terms  and 
conditions,  rights  and  obligations  thereof, 
to  inure  to  the  heirs,  administrators,  ex- 
ecutors, legal  representatives,  [453]  as- 
signs, and  lessees  of  both  parties,  but  as- 
signing or  subletting  shall  not  be  without 
the  written  consent  of  the  company. 

Under  the  other  contract  Turner  was  re- 
quired to  cooper  all  cars  which  the  round- 
house foreman  directed  him  to  prepare  to 
fit  the  cars  to  hold  grain  in  transit,  the 
foreman  to  be  the  sole  judge  whether  the 
preparation  was  in  accordance  with  the  con- 
tract. The  manner  of  preparation  is  de- 
tailed and  the  price  to  be  paid  therefor  in 
cents,  the  company  to  f  umi^  the  materials. 

There  are  provisions  as  in  the  other  con- 
tract to  save  the  company  from  liability  to 
persons  or  property.  The  contract  was  to 
continue  until  terminated  upon  thirty  days' 
notice. 

This  contract  is  pertinent  only  for  illus- 
tration, and  otherwise  may  .be  put  out  of 
view.  The  deceased  waa  killed,  it  is  the 
contention,  while  performing  services  un- 
der the  first  contract. 

Turner  had  a  contract  with  the  Enid  Mill 
•0  Ij.  ed. 


A.  Elevator  Company  to  unload  coal,  and, 
directly  after  4  o'clock  on  the  day  he  was 
killed,  having  finished  a  particular  service 
at  which  he  and  one  of  his  employees  had 
been  engaged,  remarked  that  he  would  "go 
down  and  gather  up  the  tickets  and  order  a 
car  of  coal  for  the  morning,"  and  started 
down  the  tracks  toward  the  chutes. 

He  next  appeared  about  6:25  o'clock  at 
the  cinder  pile  of  the  Enid  Mill  &  Elevator 
Company  at  what  is  designated  as  the 
"^Vhite  Mill,"  and  there  had  a  conversation 
with  en  employee  of  that  company,  and 
asked  him,  the  employee,  if  he  thought  he 
would  have  enough  coal  for  the  boiler  room 
to  run  until  Monday  night.  While  they 
were  talking  a  passenger  train  signaled  its 
approach  to  the  station  and  Turner  said, 
"That  is  24;  I  must  take  my  coal  tickets 
to  the  freight  house  and  turn  them  in  and 
order  coal  for  the  chutes."  He  then  started 
towards  the  freight  house. 

[454]  The  trial  court  thought  the  testi- 
mony was  indefinite  of  Turner's  intention 
and  hesitated  to  decide  that  he  was  engaged 
in  services  to  the  railway  company  rather 
than  to  the  Enid  Mill  k  Elevator  Company, 
but  finally  left  it  to  the  jury  to  decide. 

From  the  "White  Mill"  Turner  passed 
along  the  tracks  of  the  railroad  and  was 
seen  by  a  witness  walking  between  tracks 
3  and  4  with  his  hands  behind  him,  and 
while  so  walking,  and  when  he  was  at  a 
point  east  of  the  north  end  of  the  freight 
house,  an  engine  and  two  box  cars  and  a 
flat  car,  backing  on  the  track  to  his  left  in 
the  direction  in  which  he  was  going,  and 
running  at  about  25  miles  an  hour,  and  in 
excess  of  the  speed  limit  prescribed  in  the 
ordinance,  ran  over  and  killed  him.  It  is  a 
reasonable  conjecture  that  the  character  of 
the  day  and  the  noise  and  confusion  of  the 
approaching  passenger  train  so  distrscted 
his  attention  that  he  did  not  hear  the  ap- 
proach of  the  backing  cars  and  warning 
yells  of  the  brakeman,  and  apprehended  no 
danger. 

Besides  excessive  speed  there  were  other 
elements  of  negligence  by  the  company 
which  the  plaintiff  relied  upon. 

We  may  pass  by  the  assignments  of  error 
based  on  the  rulings  upon  the  evidence  and 
in  giving  and  refusing  instructions.  The 
determining  consideration  is  the  relation  in 
which  Turner  stood  to  the  company,  wheth- 
er he  was  an  employee  of  it  or  an  independ- 
ent contractor. 

The  trial  court  submitted  the  question  to 
the  decision  of  the  jury;  the  supreme  courts 
considering  the  contract  of  November  1, 
1910,  hereinbefore  set  out,  and  certain  testi- 
mony, decided  that  Turner  was  an  employee 
of  the  company.  The  court  said:  "Not 
only  did  the  contract  reserve  to  tha  oom- 
47 


454-467 


8UPREME  COURT  OF  THE  UNITED  STATEa 


Oct.  Temu, 


pany  the  right  to  control  and  direct  deceased 
in  his  work,  but  it  might  be  well  to  know, 
although  we  are  only  passing  on  the  face 
o^  the  contract,  that  the  company,  pursuant 
to  the  power  therein  reserved,  did  that  very 
thing,  which  confirms  us  in  our  opinion, 
gathered  [455]  from  the  face  of  the  contract, 
that  the  same  was  not  capable  of  execution 
without  such  direction  and  control.  Such 
amounts  to  a  practical  construction  of  the 
contract  by  the  company.  Mr.  Bowman, 
station  agent  and  yardmaster  of  defendant, 
testified: 

"  'Q.  From  whom  did  Turner  get  instruc- 
tions about  handling  work  performed  by 
him? 

'"A.  Under  his  contract  from  us. 

'"Q.  You  directed  him  what  to  do  7 

**  'A.  Yes,  either  me  or  my  chief  clerk. 

"'Q.  So  that  he  was  under  your  super- 
vision and  control  all  the  time? 

"  'A.  In  so  far  as  his  contracts  were  con- 
cerned, yes,  sir. 

'*'Q.  He  performed  his  duties  in  accord- 
ance with  what  you  directed  him  to  do  7 

"  'A.  Yes,  sir. 

"'Q.  I  wiU  ask  you  if  all  this  coal  he 
handled  for  the  chutes,  if  that  was  Rock 
Island  coal? 

« 'A.  Yes.  sir.' "  [—  Okla.  — ,  148  Pac 
107.] 

To  which  testimony  this  must  be  added: 

'"Q.  Did  you  have  anything  to  do  with 
directing  him  in  detail  as  to  how  he  per- 
formed the  terms  x>f  his  contract  7 


« < 


A.  No,  sir,"* 


We  are  unable  to  concur  with  the  learned 
court  in  its  conclusion.  There  was,  it  is 
true,  and  necessarily,  a  certain  direction  to 
be  given  by  the  company,  or  rather,  we 
should  say,  information  given  to  Tumw. 
But  the  manner  of  the  work  was  under  his 
control,  to  be  done  by  him  and  those  em- 
ployed by  him.  He  was  responsible  for  its 
faithful  performance  and  incurred  the 
penalty  of  the  instant  termination  of  the 
contract  for  nonperformance.  This  was 
only  a  prudent  precaution,  indeed,  neces- 
sary in  view  of  the  purpose  of  his  con- 
tract, which  was  to  make  provision  for  a 
daily  supply  of  coal  for  the  operation  of 
the  railroad.  The  power  given  was  one  of 
control  in  a  sense,  but  it  was  not  a  detailed 
control  of  the  actions  of  Turner  or  those 
of  [456]  his  employees.  It  was  a  judgment 
only  over  results  and  a  necessary  sanction 
of  the  obligations  which  he  had  incurred. 
It  was  not  tantamount  to  the  control  of 
an  employee  and  a  remedy  against  his  in- 
competency or  neglect. 

The  whole  instrument  shows  ifystem  and 
Its 


particular  care.  It  is  not  the  engagement 
of  a  servant  submitting  to  subordination 
and  subject  momentarily  to  superintendence, 
but  of  one  capable  of  independent  action,  to 
be  judged  of  by  its  results.  And  the  cove- 
nants were  suitable  for  the  purpose,  only 
consistent  with  it,  not  consistent  with  a 
temporary  employment.  This  is  manifest 
from  the  provision  for  payment,  from  the 
careful  ^assignment  of  liabilities,  and  the 
explicit  provision  that  Turner  "shall  be 
deemed  and  held  as  the  original  contractor,, 
and  the  raflroad  company  reserves  and 
holds  no  control  over  him  in  the  doing  of 
such  work  other  than  as  to  the  results  to 
be  accomplished." 

The  railroad  company,  therefore,  did  not 
retain  the  right  to  direct  the  manner  in 
which  the  business  should  be  done,  as  well 
as  the  results  to  be  accomplished,  or,  in 
other  words,  did  not  retain  control  not  only 
of  what  should  be  done,  but  how  it  should  be 
done.  Singer  Mfg.  Co.  v.  Rahn,  132  U.  S. 
518,  33  L.  ed.  440,  10  Sup.  Ct.  Rep.  175; 
New  Orleans  M.  &  C.  R.  Co.  v.  Hanning,  15 
Wall.  649,  656,  21  L.  ed.  220,  222,  7  Am. 
Ncg.  Gas.  309;  Standard  Oil  Co.  v.  Ander- 
son, 212  U.  S.  215,  227,  53  L.  ed.  480,  486, 
29  Sup.  Ct.  Rep.  252. 

The  case  falls,  therefore,  under  the  ruling 
in  Casement  v.  Brown,  148  U.  S.  615,  622, 
37  L.  ed.  582,  585,  13  Sup.  Ct.  Rep.  672. 

We  do  not  think  that  the  contract  can  be 
regarded  as  an  evasion  of  §  5  of  the  employ- 
ers' liability  act,  which  provides  "that  any 
contract,  rule,  regulation  or  device  what- 
soever, the  purpose  or  intent  of  which  shall 
be  to  enable  any  common  carrier  to  exempt 
itself  from  any  liability  created  by  this  act» 
shall  to  that  extent  be  void:  .  .  ."  [35- 
Stat.  at  L.  66,  chap.  149,  Comp.  Stat  1913, 
§  8601.] 

Turner  was  something  more  than  a  mere 
shoveler  Of  coal  under  a  superior's  com- 
mand. He  was  an  independent  employer  of 
labor,  conscious  of  his  own  power  to  direct 
[457]  and  willing  to  assume  the  responsi- 
bility of  direction  and  to  be  judged  by  its  re- 
sults. This  is  manifest  from  the  contract  un- 
der review  and  from  the  cooperage  contract; 
it  is  also  manifest  from  his  contracts  with  the 
other  companies  to  whose  industries  the 
railroad  company's  tracks  extended.  We 
certainly  cannot  say  that  he  was  incompe- 
tent to  assume  such  relation  and  incur  its 
consequences. 

Hius,  being  of  opinion  that  Turner  waa 
not  an  employee  of  the  company,  but  an 
independent  contractor,  it  is  not  material  ta 
consider  whether  the  services  in  which  he 
was  engaged  were  in  interstate  commerce. 

Judgment  reversed  and  case  remanded  for 
further  proceedings  not  inconsistent  with 
this  opinion. 

940  U.  8* 


19U. 


SOUTHERN  WISOONSIN  R.  CX).  v.  MADISON. 


SOUTHERN  WISCONSIN  RAILWAY 
qOMPANY,  Plff.  in  Err., 

V. 

CITY  OF  MADISON. 

(See  S.  0.  Reporter's  ed.  457-462.) 

Error  to  state  court  —  Federal  question 
—  Impairing  (x>ntract  obligations. 

1.  Whether  a  municipal  ordinance  may 
be  upheld  without  impairmg  the  obligations 
of  an  admitted  contract  is  a  Federal  ques- 
tion for  the  puipose  of  sustaining  the  ap- 
pellate juris^ction  of  the  Supreme  Court 
over  a  state  court,  although  the  answer  to 
the  question  depends  upon  the  construction 
of  the  contract. 

[For  other  cases,  see  Appeal  and  Error»  167S- 
1716,  In  Digest  Sup.  Ct  1908.)    ., 

Error  to  state  court  —  decision  on  non- 
Federal  ground. 

2.  A  decision  of  the  highest  state  court, 
upholding  the  imposition  of  a  paving  obliga- 
tion upon  a  street  railway  company,  is  re- 
viewable in  the  Federal  Supreme  Court  on 
writ  of  error,  where  a  municipal  ordinance 
requiring  a  street  railwav  company,  imder 
a  penalty,  to  do  the  work,  was  set  up  and 
attacked  as  impairing  contract  obligations, 
and  was  expressly  upheld  by  the  state  court, 
even  though  the  state  court's  opinion  be 
read  as  asserting  that  the  duty  existed  un- 
der the  street  railway  company's  franchise 
alone,  irrespective  of  the  later  ordinance, 
since  such  ordinance  was  present,  impelling, 
so  far  as  might  be,  the  decision  reached, 
and  was  given  effect  by  the  decision. 

[For  other  cases,  see  Appeal  and  Error,  1465-- 
1628,  In  Digest  Sup.  Ct.  1908.] 

Srror  to  state  court  —  following  deci- 
sion below  ^  impairing  contract  ob- 
ligations. 

3.  The  Federal  Supreme  Court  will  not 
disturb  a  decision  of  the  hig)iest  state  court 
that  a  municipal  ordinance  requiring  a 
street  railway  company  to  bear  the  cost  of 
an  asphalt  pavement  between  its  rails  and 
for  a  distance  of  1  foot  outside  does  not  im- 
pair the  obligations  of  its  chai:^r,  which 
re(|uires  it  to  keep  such  space  in  proper  re- 
pair, so  as  not  to  interfere  with  travel  over 
the  same,  and  which  makes  the  grant  sub- 
ject to  such  reasonable  rules  and  regula- 
tions respecting  the  streets  and  highways 


and  operation  of  cars  as  the  common  council 
may  enact,  where  the  state  court  found  that 
the  designated  space  needed  repairs,  and 
that  the  crushed  stone  then  used  was  not 
suitable  for  the  purpose,  and  would  have 
interfered  with  the  asphalt  laid  by  the  city 
in  the  rest  of  the  street. 
[For  other  cases,  see  Appeal  and  Error,  VIII. 
m,  1,  In  Digest  Sup.  Ct.  1908.] 

[No.  260.] 

Argued    March    6    and    7,    1916.     Decided 
March  20,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Wisconsin  to  review  a  judgment 
which  affirmed  a  judgment  of  the  Circuit 
Court  for  Dane  County,  in  that  state,  in 
favor  of  a  municipality  in  a  suit  to  recover 
the  cost  of  paving  from  a  street  railway 
company.    Affirmed. 

See  same  case  below,  166  Wis.  362, 
L.R.A.— ,  — ,  146  N.  W.  492. 

The  facts  are  stated  in  the  opinion. 

Mr.  Burr  W.  Jones  argued  the  cause, 
and,  with  Mr.  B.  J.  B.  Schubring,  filed  a 
brief  for  plaintiff  in  error: 

A  municipal  by-law  or  ordinance,  enacted 
by  virtue « of  power  for  that  purpose,  dele- 
gated by  the  legislature  of  the  state,  is  a 
state  law  within  the  meaning  of  the  Fed* 
eral   Constitution. 

Atlantic  Coast  Line  R..Co.  v.  Goldsboro, 
232  U.  S.  649,  665,  58  L.  ed.  721,  725,  34 
Sup.  Ct.  Rep.  364;  St.  Paul  Gaslight  Co.  v. 
St.  Paul,  181  U.  S.  142,  148,  45  L.  ed.  788, 
791»  21  Sup.  Ct.  Rep.  575;  aty  R.  Co.  v. 
Citizens'  Street  R.  Co.  166  U.  S.  557,  563,  41 
L.  ed.  1114,  1116,  17  Sup.  Ct.  Rep.  653; 
New  Orleans  Waterworks  Co.  v.  Louisiana, 
185  U.  S.  336,  350,  46  L.  ed.  936,  943,  22 
Sup.  Ct.  Rep.  691;  Davis  A  F.  Mfg.  Co.  t. 
Los  Angeles,  189  U.  S.  207,  216,  47  L.  ed. 
778,  780,  23  Sup.  Ct.  Rep.  498;  Hamilton 
Gaslight  A  Coke  Co.  v.  Hamilton,  146  U.  S. 
258,  266,  36  L.  ed.  963,  967, 18  Sup.  Ct.  Rep. 
90;  Ross  Y.  Oregon,  227  U.  S.  150,  162,  57 
L.  ed.  468,  463,  33  Sup.  Ct.  Rep.  2X0,  Ann. 


Note. — On  the  general  subject  of  writs  of 
error  from  United  States  Supreme  Court  to 
state  courts — see  notes  to  Martin  v.  Hunter, 
4  L.  ed.  U.  S.  97,  Hamblin  v.  Western  Land 
Co.  37  L.  ed.  U.  S.  267;  Re  Buchanan,  39 
Li.  ed.  U.  S.  884;  and  Kipley  v.  Illinois,  42 
Xi.  ed.  U.  S.  998. 

On  what  adjudications  of  state  courts 
can  be  brought  up  for  review  in  the  Su- 
preme Court  of  the  United  States  by  writ 
of  error  to  those  courts — see  note  to  Apex 
Transp.  Co.  v.  Garbade,  62  L.RJL.  513. 

On  how  and  when  questions  must  be 
raised  and  decided  in  a  state  court  in  order 
to  make  a  case  for  a  writ  of  error  from 
the  Supreme  Court  of  the  United  States — 
see  note  to  Mutual  L.  Ins.  Co.  ▼•  McGrew, 
03  LJLA.  33. 
60  Ii.  ed. 


On  what  the  record  must  show  respect- 
ing the  presentation  and  decision  of  a  Fed- 
eral question  in  order  to  confer  jurisdiction 
on  the  Supreme  Court  of  the  United  States 
on  a  writ  of  error  to  a  state  court — see 
note  to  Hooker  v.  Los  Angeles,  63  L.R.A. 
471. 

As  to  what  is  the  record  for  the  purpose 
of  showing  the  jurisdiction  of  the  Supreme 
Court  of  the  United  States  of  a  writ  of 
error  to  a  state  court— see  note  to  Home 
for  Incurables  t.  New  York,  63  L.RA..  329. 

On  error  to  state  courts  in  cases  present- 
ing questions  of  impairment  of  contract 
obligations — see  note  to  Osborne  ▼.  Clarke, 
51  L.  ed.  U.  S.  §19. 


7^^ 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Ibsu, 


Cm.  1914C,  224;  Cleveland  v.  Cleve- 
land City  R.  Co.  194  U.  S.  517,  636,  48 
L.  ed.  1102,  1109,  24  Sup.  Ct.  Rep.  756; 
Northern  P.  R.  Co.  v.  Minnesota,  208  U.  S. 
583,  590,  52  L.  ed.  630,  633,  28  Sup.  Ct.  Repi 
341;  Mercantile  Trust  &  D.  Co.  v.  Colum- 
bus, 203  U.  S.  311,  320,  51  L.  ed.  198,  202, 
27  Sup.  Ct.  Rep.  83;  Vicksburg  Water- 
works Co.  V.  Vicksburg,  185  U.  S.  65,  81,  46 
L.  ed.  808,  815,  22  Sup.  Ct.  Rep.  585;  South- 
west Missouri  Light  Co.  v.  Joplin,  101  Fed. 
23. 

The  passage  of  the  ordinance  of  June  11, 
1910,  was  such  state  legislation  as  impaired 
the  obligation  of  the  contract  and  raised  a 
Federal  question  when  properly  presented 
in  the  record. 

St.  Paul  Gaslight  Co.  v.  St.  Paul,  181  U. 
8.  142,  147,  45  L.  ed.  788,  791,  21  Sup.  Ct. 
Rep.  575;  Houston  &  T.  C.  R.  Co.  v.  Texas, 
177  U.  S.  66,  74,  77,  44  L.  ed.  673,  679,  680, 
20  Sup.  Ct.  Rep.  545;  McCullough  v.  Vir- 
ginia, 172  U.  S.  104,  117,  43  L.  ed.  382,  387, 
19  Sup.  Ct.  Rep.  134;  Northwestern  Uni- 
versity Y.  Illinois,  99  U.  S.  309,  313  25  L. 
ed.  387 ;  Walla  Walla  v.  Walla  Walla  Water 
Co.  172  U.  S.  1,  43  L.  ed.  341,  19  Sup.  a. 
Rep.  77;  Mobile  &  0.  R.  Co.  v.  Tennessee, 
153  U.  S.  486,  405,  38  L.  ed.  793,  796,  14 
Sup.  Ct.  Rep.  068. 

The  state  court  by  its  decision  gives  ef- 
fect to  the  ordinance. 

Bridge  Proprietors  v.  Hoboken  Land  & 
Improv.  Co.  1  Wall  116,  140-147,  17  L.  ed. 
671,  575-577;  Houston  &  T.  C.  R.  Co.  v. 
Texas,  177  U.  S.  66,  74-77,  44  L.  ed.  673, 
679,  680,  20  Sup.  Ct.  Rep.  545;  McCullough 
▼.  Virginia,  172  U.  S.  102,  116,  117,  43  L.  ed. 
882,  387,  388,  19  Sup.  Ct.  Rep.  134;  North- 
western University  v.  Illinois,  99  U.  S.  300, 
820,  25  L.  ed.  387,  388;  Given  v.  Wright, 
117  U.  S.  648  29  L.  ed.  1021,  6  Sup.  Ct. 
Rep.  907;  West  Chicago  Street  R.  Co.  v. 
Illinois,  201  U.  S.  506,  519,  50  L.  ed.  845, 
850,  26  Sup.  Ct.  Rep.  518;  Mercantile  Trust 
&  D.  Co.  V.  Collins  Park  &  Belt  R.  Co.  09 
Fed.  812. 

The  city  cannot  assail  its  own  ordinance 
to  defeat  jurisdiction. 

Cleveland  v.  Cleveland  City  R.  Co.  194  U. 
S.  517,  48  L.  ed.  1102,  24  Sup.  Ct.  Rep.  756. 

At  common  law  the  duty  to  repair  and 
repave  streets  rests  upon  the  municipality. 

Hammond  v.  Mukwa,  40  Wis.  41;  Klatt 
T.  Milwaukee,  53  Wis.  201,  40  Am.  Rep. 
769,  10  N.  W.  162. 

The  obligation  to  repair  or  repave  can 
therefore  not  rest  upon  the  plaintiff  in  error 
unless  such  duty  is  expressly  imposed  by 
the  franchise. 

Chicago  Union  Traction  Co.  v.  Case,  120 

ni.  App.  466;  New  York  v.  Bleecker  Street 

ft  F.  Ferry  R.  Co.  130  App.  Div.  830,  115 

Jf.  Y,  Supp,  592;  Western  Paving  ft  Supply 

740 


Co.  Y.  Citizens'  Street  R.  Co.  128  Ind.  525, 
10  L.RJ^.  770,  25  Am.  St.  Rep.  462,  26  N.  £. 
188,  28  N.  E.  88. 

The  franchise  does  not  impose  upon  the 
street  railway  company  the  duty  to  pave 
or  repave  the  railway  zone,  but  simply  to 
keep  the  same  in  such  repair  as  not  to  in- 
terfere with  travel  over  the  same,  and  to 
keep  the  same  in  proper  order  and  cleanli- 
ness. 

Blount  Y.  JanesYille,  31  Wis.  648. 

The  franchise  should  be  construed  as  if 
the  rule  of  the  Blount  Case,  supra,  was 
stated  in  the  text. 

Ennis  Waterworks  y.  Ennis,  233  U.  S. 
652,  58  L.  ed.  1139,  34  Sup.  Ct.  Rep.  767. 

With  the  franchise  ordinance  which  re- 
quired paving,  before  their  eyes,  the  council 
deliberately  omitted  that  provision  in  the 
new  ordinance. 

Smith  V.  Eau  Qaire,  78  Wis.  457,  47  N. 
W.  830;  Indianapolis  ft  E.  L  R.  Co.  y.  New 
Castle,  43  Ind.  App.  467,  87  N.  E.  1067. 

The  obligation  to  repair  does  not  require 
repaving. 

Chicago  Y.  Sheldon,  9  Wall.  60,  64,  19  L. 
ed.  594,  596;  Dili  Mun.  Corp.  6th  ed.  § 
1276;  State  ex  rel.  Kansas  City  y.  Corrigan 
Consol.  Street  R.  Co.  85  Mo.  263, 66  Am.  Rep. 
361,  86  Mo.  67;  Williamsport  ▼.  Williams 
port  Pass.  R.  Co.  206  Pa.  66,  66  Atl.  836; 
Western  Paving  ft  Supply  Co.  y.  Citizens' 
Street  R.  Co.  128  Ind.  525,  10  LJtA.  770, 
25  Am.  St.  Rep.  462,  26  N.  E.  188,  28  N.  E. 
88;  Philadelphia  ▼.  Hestonville,  M.  ft  F. 
Pass.  R.  Co.  177  Pa.  871,  86  AtL  718; 
United  R.  ft  Electric  Co.  y.  Baltimore,  121 
Md.  558,  88  Atl.  617 ;  Baltimore  ▼.  Scharf , 
54  Md.  499 ;  Hurley  y.  Trenton,  66  K.  J.  L. 
538,  49  Atl.  518. 

A  charter  granted  to  a  street  railway 
company  to  construct  and  operate  a  street 
railway  within  the  corporate  limits  of  a 
city  constitutes  a  contract  between  the 
railway  company  and  the  city. 

Chicago  Y.  Sheldon,  9  WalL  60,  19  L.  ed. 
594;  Western  Paving  ft  Supply  Co.  ▼.  Citi- 
zens' Street  R.  Co.  128  Ind.  626,  10  L.RA. 
772,  25  Am.  St.  Rep.  462,  26  N.  E.  188,  28 
N.  E.  88. 

The  liability  of  the  street  railway  com- 
pany being  fixed  by  its  charter,  neither  ths 
city  council  nor  the  state  leg^alature  can 
alter  it  without  the  consent  of  the  oom* 
pany. 

Western  Paving  ft  Supply  Co.  t.  Otlzens' 
Street  R.  Co.  supra;  Coast-Line  R.  Go.  y. 
Savannah,  30  Fed.  646;  Chicago  t.  Sheldon, 
supra. 

Mr.  William  Ryan  argued  the  cauae  and 
filed  a  brief  for  defendant  in  error: 

The  contention  made  and  passed  upon  in 
the  state  courts  cannot  be  enlarged  by  as- 

14«  V.  6. 


1916. 


SOUTHERN  WISOONSIN  R.  GO.  v.  MADISON. 


ngnments  of  error  to  bring  the  case  to  this 
eourt. 

Clereland  &  P.  R.  Co.  ▼.  Cleveland,  235 
U.  S.  50,  59  L.  ed.  127,  36  Sup.  Ct.  Rep.  21. 

The  ordinance  is  administrativei  and  not 
legislative  in  character,  and  the  city  could 
have,  with  •  the  same  force  and  effect, 
dUrected  the  mayor  or  street  superintendent 
to  order  and  direct  the  street  railway  com- 
pany to  do  the  work  in  question. 

New  Orleans  Waterworks  Co.  ▼.  Louisi- 
ana Sugar  Ref.  Co.  125  U.  S.  18,  32,  31  L. 
ed.  607,  612,  8  Sup.  Ct.  Rep.  741;  Ross  v. 
Oregon,  227  U.  S.  150,  163,  67  L.  ed.  458, 
463,  33  Sup.  Ct.  Rep.  220,  Ann.  Cas.  1014C, 


The  franchise  of  1892  requires  the  street 

ilway  company  to  pave  the  railway  zone 
when  the  city  repairs  the  remainder  of  the 
street,  under  the  facts  found  by  the  trial 
court  in  this  case. 

Central  Land  Co.  v.  Laidley,  159  U.  S. 
103,  110,  40  L.  ed.  91,  04,  10  Sup.  Ct.  Rep. 
80;  State  ex  rel.  Milwaukee  v.  Milwaukee 
Electric  R.  &  Light  Co.  151  Wis.  520,  139 
N.  W.  396,  Ann.  Cas.  1914B,  123;  Blair  v. 
Chicago,  201  U.  S.  400,  472,  60  L.  ed.  801, 
831,  26  Sup.  Ct.  Rep.  427;  Knoxville  Water 
Go.  ▼.  Knoxville,  200  U.  S.  22,  50  L.  ed.  353, 
26  Sup.  Ct.  Rep.  224;  Elliott,  Roads  & 
Streets,  3d  ed.  §§  987,  988;  Madison  ▼. 
Southern  Wisconsin  R.  Co.  150  Wis.  368, 
LJtJ^.  — ,  — ,  146  N.  W.  492;  New  York  ▼. 
Harlem  Bridge,  M.  &,  F.  R.  Co.  186  N.  Y. 
304,  78  N.  E.  1072;  Danville  v.  Danville  R. 
&  Electric  Co.  114  Va.  382,  43  L.RA.(N.S.) 
463,  76  S.  E.  913;  Norfolk  &  P.  Traction  Co. 
V.  Norfolk,  116  Va.  169,  78  S.  E.  545,  Ann. 
Gas.  1914D,  1067;  State  ex  rel.  Jacksonville 
V.  Jacksonville  Street  R.  Co.  29  Fla.  590,  10 
So.  590;  Columbus  Street  R.  &.  Light  Co. 
V.  Colximbus,  43  Ind.  App.  265,  86  N.  E.  88; 
Conway  ▼.  Rochester,  157  N.  Y.  33,  51  N.  E. 
395;  Mechanicville  v.  Stillwater  &,  M.  Street 
R  Co.  35  Misc.  513,  71  N.  Y.  Supp.  1102; 
Binninger  ▼.  New  York,  177  N.  Y.  199,  69 
N.  E.  300;  State  ex  rel.  Roundtree  ▼.  Gib- 
son County,  80  Ind.  478,  41  Am.  Rep.  821. 

To  give  §  3  of  the  franchise  of  1892  the 
meaning  contended  for  by  plaintiff  in  error 
would  render  its  inclusion  in  the  franchise 
of  no  value  whatever,  for  the  reason  that  it 
is  a  common -law  duty  of  a  street  railway 
company  to  make  such  repairs  irrespective 
of  ordinance  or  franchise  provision  to  that 
effect. 

Reading  ▼.  United  Traction  Co.  215  Pa. 
250,  64  Atl.  446,  7  Ann.  Cas.  380;  Reading 
T.  United  Traction  Co.  202  Pa.  571,  52  Atl. 
106;  Memphis,  P.  P.  &  Belt  R.  Co.  v.  State, 
87  Tenn.  746,  11  S.  W.  946;  Harrisburg  v. 
Harrisburg  Pass.  R.  Co.  1  Pearson  (Pa.) 
298;  atizens'  Street  R.  Co.  v.  Ballard,  22 
Ind.  App.  151,  52  N.  £.  729;  Western  Pav- 
•0  li.  ed. 


ing  &  Supply  Co.  ▼.  Citizens'  Street  R.  Cc». 
128  Ind.  535, 10  L.RA.  770,  25  Am.  St.  Rep. 
462,  26  N.  E.  188,  28  N.  £.  88;  Montgomery 
Street  R.  Co.  v.  Smith,  146  Ala.  316,  39  So. 
757. 

The  Pennsylvania  decisions  go  further 
and  hold  that  this  common-law  duty  re- 
quires the  railway  company  to  pave  or  re- 
pave  the  railway  zone  when  it  is  in  fact  out 
of  repair  and  the  city  improves  the  rest  of 
the  street. 

Reading  v.  United  Traction  Co.  215  Pa. 
255,  64  Atl.  446,  7  Ann.  Cas.  380;  Reading 
V.  United  Traction  Co.  202  Pa.  573,  52  Atl. 
106;  Gallagher  v.  Philadelphia  Rapid  Tran- 
sit Co.  51  Pa.  Super.  Ct.  488;  McKeesport 
V.  Pittsburg,  M.  ft  C.  R.  Co.  55  Pa.  Super. 
Ct.  47. 

The  provisions  of  the  earlier  franchise 
granted  by  the  city  to  a  differtot  party 
from  the  grantee  of  the  franchise  of  1892 
are  not  to  be  considered  in  determining  the 
meaning  of  the  provisions  of  the  later  fran- 
chise. 

Oberbeck  ▼.  Sportsman's  Park  ft  Club 
Asso.  17  Mo.  App.  310;  Charles  River 
Bridge  v.  Warren  Bridge,  11  Pet.  420,  543, 
9  L.  ed.  773,  822. 

The  street  railway  company  has  not  met 
its  obligations  under  the  franchise. 

Brooklyn  v.  Brooklyn  City  R.  Co.  47  N. 
Y.  475,  7  Am.  Rep.  469;  Binninger  v.  New 
York,  177  N.  Y.  199,  69  N.  E.  390;  Phila- 
delphia V.  Ridge  Ave.  Pass.  R.  Co.  143  Pa. 
472,  22  Atl.  695. 

The  city  acted  within  its  authority  under 
the  power  expressly  reserved  in  the  fran- 
chise to  make  reasonable  rules  and  regula- 
tions respecting  the  streets  and  highways, 
and  consequently  the  ordinance  of  June  11, 
1910,  does  not  impair  the  obligation  of  the 
contract,  nor  take  the  property  of  the  com- 
pany without  due  process  of  law. 

Detroit  v.  Detroit  Citizens'  Street  R.  C6. 
184  U.  S.  368,  397,  46  L.  ed.  502,  611,  22 
Sup.  Ct.  Rep.  410. 

The  enactment  of  the  ordinance  of  June 
11,  1910,  under  the  reservation  contained 
in  the  franchise  and  statute,  invaded  no 
contract  rights  of  the  plaintiff  in  error,  but 
dealt  only  with  matters  which  are  the  sub- 
ject of  police  regulation. 

Chicago,  B.  ft  Q.  R.  Co.  v.  Illinois,  200 
U.  S.  561,  592,  50  L.  ed.  596,  600,  26  Sup. 
Ct.  Rep.  341,  4  Ann.  Cas.  1175;  Chicago  ft 
A.  R.  Co.  V.  Tranbarger,  238  U.  S.  67,  77» 
59  L.  ed.  1204,  1211,  35  Sup.  Ct.  Rep.  678; 
Atlantic  Coast  Line  R.  Co.  ▼.  Goldsboro, 
232  U.  S.  548,  561,  58  L.  ed.  721,  727,  34 
Sup.  Ct.  Rep.  364;  Detroit  ▼.  Detroit  United 
R.  Co.  172  Mich.  496,  138  N.  W.  215;  St. 
Helena  v.  San  Francisco,  N.  ft  C.  R.  Co.  24 
Cal.  App.  71, 140  Pac.  600,  605;  Fair  Haven 
ft  W.  R.  Co.  T.  New  Haven,  75  Coiudl.  AA^ 


46»-461 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Xbm, 


63  Ail.  960,  203  U.  S.  379,  51  L.  ed.  237,  27 
Sup.  Gt.  Rep.  74;  MisBouri  P.  R.  Go.  t. 
Omaha,  236  U.  S.  121,  127,  59  L.  ed.  157, 
160,  35  Sup.  Ct.  Rep.  82;  Chicago,  B.  &  Q. 
R.  Co.  v.  Nebraska,  170  U.  S.  57,  42  L.  ed. 
048,  18  Sup.  Ct.  Rep.  513;  Chicago,  M.  & 
St.  P.  R.  Co.  Y.  Minneapolis,  232  U.  S.  430, 
58  L.  ed.  671,  34  Sup.  Ct.  Rep.  400;  Balti- 
more T.  Baltimore  Trust  &  0.  Co.  166  U.  S. 
673,  684,  41  L.  ed.  1160,  1164,  17  Sup.  Ct. 
Rep.  696. 

[450]  Mr.  Justice  Holmes  delivered  the 
opinion  of  the  court: 

This  is  a  suit  brought  by  the  city  of  Madi- 
son to  recover  the  cost  of  asphalt  pavement 
between  the  rails  of  the  defendant's  track 
and  1  foot  on  the  outside  of  them,  for  a 
certain  distance  along  University  avenue  in 
that  city.  The  declaration,  after  stating  the 
ordinances  under  which  the  defendant  and 
its  predecessors  had  built  and  operated  the 
street  railway  concerned,  sets  out  an  ordi- 
nance of  June  11,  1910,  requiring  the  de- 
fendant, under  a  penalty,  to  do  the  work 
above  described.  The  defendant  answered 
that  to  make  it  pay  the  cost  would  deprive 
it  of  its  property  and  contract  rights  under 
its  franchise  without  due  process  of  law  and 
the  equal  protection  of  the  laws,  contrary 
to  the  Constitution  of  the  United  States. 
The  judge  before  whom  the  case  was  tried 
found  that  the  designated  space  had  become 
so  out  of  repair  as  to  interfere  with  travel, 
and  that  the  crushed  stone  then  u^ed  was 
not  a  proper  pavement,  and  would  inter- 
fere with  the  asphalt  laid  down  by  the  city, 
and  gave  judgment  for  the  plaintiff.  The 
supreme  court  accepted  the  defendant's  po- 
sition, that  its  charter  was  a  contract, 
but  met  the  argument  based  upon  it  by  a 
construction  that  warranted  the  later  ordi- 
nance, and  judgment  for  the  plaintiff  was 
affirmed.  156  Wis.  352,  L.R.A.— ,  — ,  146 
N.  W.  492. 

As  our  opinion  is  that  the  judgment 
should  be  affirmed,  we  shall  not  dwell  upon 
a  motion  to  dismiss  made  by  the  defendant 
in  error.  The  court  expressly  upheld  the 
later  ordinance,  and  whether  that  ordinance 
can  be  upheld  without  impairing  the  obliga- 
tiqn  of  the  admitted  contract  of  the  charter 
is  a  Federal  question  none  the  lens  that  tlie 
answer  depends  upon  the  construction  of  the 
instrument.  Even  if  the  opinion  below  be 
vead  as  asserting  that  the  duty  existed  by 
the  charter  alone,  irrespective  of  the  later 
ordinance,  still  as  the  ordinance  was  set  up 
and  relied  upon  in  the  declaration  and  was 
present  impelling,  [460]  so  far  as  might  be, 
the  decision  reached,  and  was  given  effect 
by  that  decision,  we  should  not  dismiss  the 
case.  Terre  Haute  &  I.  R.  Co.  v.  Indiana, 
jn4  U.  8.  579,  48  L.  ed.  1124,  24  Sup.  Ct. 
T4M 


Rep.  767.  We  lay  on  one  side  a  laggcation 
that  runs  counter  to  the  opinion  below  and 
to  common  sense,  that  the  later  ordinance, 
when  it  requires  the  defendant  to  do  the 
work  under  a  penalty  of  not  exceeding  $50  a 
day,  is  not  a  legislative  command,  but  mere- 
ly a  notice  to  perform  a  duty  already  in 
force. 

Up  to  1892  the  defendant's  franchise  was 
held  under  a  charter  that,  after  providing 
for  the  disposition  to  be  made  of  snow  on 
the  track,  continued:  "And  said  company 
shall  keep  the  space  between  the  rails  and 
for  the  distance  of  1  foot  on  the  outside  side 
of  the  rails  in  proper  repair  so  as  not  to 
interfere  with  travel  over  the  same,  and 
shall  keep  the  same  in  proper  order  as  to 
cleanliness  at  its  own  cost  and  expense.*' 
The  charter  then  went  on  to  provide  tliat 
whenever  a  street  in  which  were  tracks 
should  be  paved  or  macadamized,  the  rail- 
way company  should  pave  or  macadamize 
the  above-mentioned  space  and  keep  it  in- 
equally  good  and  corresponding  condition. 
In  1892,  a  new  ordinance  was  passed  author- 
izing the  company  to  build  and  operate  a 
road  in  the  city  and  to  use  electricity  as  a 
motive  power  upon  its  tracks  then  or  there- 
after authorized  and  constructed.  It  had 
the  above-quoted  provision  as  to  keeping  the 
space  in  repair,  and  the  grant  was  made 
''subject  to  such  reasonable  rules  snd  regu- 
lations respecting  such  streets  and  high- 
ways and  operation  of  cars  as  the  said  coun- 
cil may  from  time  to  time  enact,"  but  the 
ordinance  did  not  repeat  the  provision  as 
to  paving.  The  supreme  court  held  that  the 
requirement  to  keep  the  space  in  repair  was 
enough,  and,  by  a  diminished  majority,  that 
the  ordinance  of  1910  fell  within  the  reason- 
able rules  and  regulations  thai  the  company 
was  bound  to  obey. 

If  there  had  been  no  ordinance  of  1910, 
but  the  suit  [461]  had  been  brought  sim- 
ply upon  the  alleged  duty  under  the  charter 
of  1892,  and  the  city  had  recovered,  as  it 
might  have  upon  the  present  interpretation 
of  that  instrument,  t!.ere  would  have  been 
no  question  for  this  court.  Fisher  ▼.  Kew 
Orleans,  218  U.  S.  438,  440,  54  L.  ed.  1099, 
1100,  31  Sup.  Ct.  Rep.  57.  WhUe  this  con- 
sideration has  not  required  us  to  dismiss 
the  writ  of  error,  it  suggests  reasons  of 
more  than  usual  force  for  following  that  in- 
terpretation. Althou^  we  all  agree  that  in 
this  class  of  cases  it  is  our  duty  to  see  that 
parties  are  not  deprived  of  their  oonatitu- 
tional  rights  under  the  guise  of  oonatmc- 
tion,  still  the  mere  fact  that  without  the 
state  decision  we  might  have  hesitated  is 
not  enough  to  lead  us  to  overrule  that  deci- 
sion upon  a  fairly  doubtful  point.  Tampa 
Waterworks  Co.  v.  Tampa,  199  U.  S.  241, 
243,  244,  50  L.  ed.  170,  173, 174,  26  Bap.  Ct 

140  V.  S. 


UU.                          CDYAHOQA  BIVEB  POWBB  CO.  t.  AKBOK.  4«1,  4M 

I«Pl  n.    W«  ftppndftta  tha  Argnment  to  b«  waten  of  k  atremm,  where  tbe   bill,  Kftcr 

dnwn   from   Um   omlaslon   of   the   [wring  Kttlog  out  T»rioua  paaaagea  from  the  atata 

dMiM  In  the  charter  of  1892,  and  tha  poa-  ■tatntM  and  Conatitution.  and  ftTerring  that 

aiUe  rcMon    for    iU   omi.iioo    in   the    fact  ^  eity  ha*  no  oonatitutionij  power  to  tak. 

tt.t   the   experim^t    of    .ub.UUtin,   e,^  ZTT^,"  CT^J^'^X"^:^ 

tiicity  for  bora,  power  then  waa  relatlyely  uj[t  5„Vity  doM  Dot  eontempUto  inatitSt- 

■ew.      But   it   k    abo   poasible    that    the  ing  proceedlnsa  againat  the  company,  but 

claoae  waa  deemed  auperfluoua.   If,  indeed,  intenda   to  take  the   Istter'a  proper^   and 

the     omiaaloD     ahould     be     oonaidered     at  right*    without    OMupenaatlon ;    that    it    to 

*IL       Charlea     River     Bridge     y.     Warren  building  a  dam  and  haa  taken   atepa  that 

Bridge,  11  Pet.  420,  M3.  6*4,  9  U  ad.  778,  ""1  dwtroy  the  eompauj'a  right*)   that  U 

822,  823.    It  la  to  b«  remembered  that  thi.  »•  !n«>i»«iti  that  the  purpoae  of  the  ordi- 

_       .            i  ,          ,,             >             ...  nance  and  Katute*  referred  to  ia  to  appn>> 

requirenwnt  U  a  widespread  one  with  regard  j^j,   ^^   j^„       ^^^   ^^^^^  without 

to  atreet  railwiye.    Reading  t.  United  Trao-  eompenaation :  and  that  In  ao  aettng  It  t1». 

tioa  Co.  202  Fa.  571,  673,  62  Atl.  106, 21B  Pa.  l.tei  the  contract  and  due  proc«aa  of  law 

SSO,  26S,  S4  Atl.  446,  7  Ann.  Cas.  380.  There  elauaea  of  the  Federal  Conatitution. 

are  perenaaire  declalona  that  tlie  obligation  l^or  otter  caM  aa*  Conrta,  V.  e.  In  Dlfaat 

to  keep  the  Epaee  "in  proper  repair  •«  a*  •»»•".  Itras.) 

not  to  interfere  with  travel  over  the  aame"  [Ho.  46S.] 
•xtenda  to  what  Waa  demanded  of  the  da- 

fmdant  in  thia  caae.    New  York  v.  Harlem  Argued  October  20,   1910.    Decided  Hard 

Bridge,  M.  k  F.  R.  Co.  186  N.  Y.  304,  78  20,  1916. 
K.  E.  1072;  SUte  ex  rel.  Milwaukee  t.  MII- 

tvaukee  Electric  R.  A  Light  Co.    161   Wla  i  PPEAL  from  the  Diatrlct  Court  of  tha 

020,  139  N.  W.  396,  Ann.  Cae    1914B,  123.  j\.  United  SUtea  for  the  Northern  DiatrM 

TThe  reaaona  for  construing  auch  ordinancea  of  Ohio  to  review  a  decree  dlamiaaing,  for 

■trietly  in  favor  of  the  public  are  reiterated  want  of  juriadictlon,  a  bill  by  a  bydroeleo* 

in   the  present  caae.     Knoxville  Water  Co.  trie  power  company  to  prevent  a  munialpal* 

v.  Knoxville,  ZOO  U.  8.  22,  33,  34,  GO  L.  ed.  ity    from    appropriating    the    watera    of    ft 

353,    350,   20    Sup.   Ct.   Rep.    224 1    Blslr  *.  itream.     Reversed 

Chicago,  201  U.  S.  400,  472,  473.  GO  L.  ed.  See  same  caae  below,  210  Fed.  624. 

«01,  S3I,  832,  26  Sup.  a.  Rep.  427.  Both  of  The  fact*  are  aUted  in  the  opinion. 


"tho  grounda  taken  by  tha  court  below  get 


Carroll    O,    Wall«r    argued    the 


-wmc  support  from  [482]  decisions  of  this  ^„^;  ,„j   ^jy,  j,;^,   ^^^  H   EtUs,  R. 

*'*""^;o,?,"i^V,"^ir^«T^''T™''^V  Golden  Donaldson,  and  Charlea  A.  Collin. 

-•■«»,  203  U.  B.  378,  389,  51  L.  ed    287,  241,    .,.,  .  k.i.#  «„.  - ii.„* 

27  Sup.  Ct.  Hep.  74 ;  Delrolt  v.  Detroit  Citi:  ""^  *  '*'"'  '"  "PP"""*- 

xens'  Street  H.  Co.  184  U.  S.  388,  397,  48  Mr.   Jphn    L.    Wrtto   alao    argued   tha 

r.,   ed.  a»2,  611,  22  Sup.  Ct.  Rep.  410.     In  cauae  for  appellant. 
Yiaw  of  the  finding  that  the  pavement  need- 

«il  repair  and  that  crushed  atone  would  not  Mr.  Charlea  A.  Collin  also  filed  a  separata 

bave    been    suitable    for    the    purpoae    and  brief  for  appellant: 

Would    have    been    additionall*    unsuitable  The  claim  that  the  action  of  the  appellee 

when  the  rest  of  the  street  waa  paved  with  in  diverting   the    waUr*   of   the   Cuyahoga 

«aphalt,  wa  do  not  feel  prepared  to  declare  river  la  the  action  of  the  atate,  and,  II  or- 

th«  judgment  wrong.  ried  out,  would  violate  ^he  proTiaiona  of  tbt 

Judgment  afBrmed.  14th    Amendment   to   the   Constitution   of 

the  United   States  by  stalling  the  property 

of  the  appellant  without  due  proceaa  of  law, 

OIYAHOOA  RIVEE  POWER  COMPANY,  """"S  ,'/S'"'  '1^"°^  ^  ^  m 

.      .                                     '  Consolidated  Tump.  Co,  v.  Norfolk  ft  O. 

%•  ■'  V.  B.  Co.  228  U.  S.  826,  330,  57  L.  ed.  857, 

CITY  OF  AKRON  ^^^'  ^  ^"P'  ^-  ^°P'  ^^^'-  Chicago,  B.  A  Q. 
R.  Co.  V.  Chicago.  166  U.  S.  226.  41  L.  ed. 

(Sea  a  a  Reporter'*  ed.  462-464.)  079,  17  Sup.  a.  Hep.  681;  Appleby  v.  Buf- 
falo. 221  U.  S.  524,  G5  L.  ed.  838,  31  Sup. 

Fedaa«l     conrM  —  inriadlction  —  Fed-  Ct.    Rep.   609;    United   States    v.    Keynolda, 

erml  qnestton.  236  U.  S.  133,  140,  G9  L.  ed.  102.  168.  36 

A  Federal  diatrlct  court  has  Juris-  Sup.  Ct.  Rep.  86;  McCabe  v.  Atchison,  T.  A 

'^^  ^'^*   ^""'?..°'  fl""°»^'P  "'  S.  F.  H.  Co.  235  U.  S.  151,  160,  60  L.  ed. 

!L-^„iT^Jl**.^,;^it^;   ^™  "».  "3.  35  S"P-  «■  R«P-  M;  Yick  Wo  v. 

s^a^''S£:'^mp»Txii5  X  •^°p'^-- "« V  r- h'^'-  '"■  ^- 

mount   righU  through  the  enforcement   of  22^,  6  Sup.  Ct.  Rep.  1064;  Home  Teleph.  A 

an  ordlnaaoa  for  tha  appropriation  of  the  leleg.  Co.  v.  Los  Angelea,  227  D.  S.278,&n, 

•t  Zb  ed.  1^% 


463-464 


SUPKSMB  COURT  OF  THB  UKITSD  STATEa 


Oor.  Tbbic» 


288,  57  L.  ed.  510,  515,  33  Sup.  Ct  Bep.  312; 
Baymond  ▼.  Qiicago  Union  Tractum  Co.  207 
U.  S.  20,  35,  52  L.  ed.  78,  87,  28  Sup.  Ct 
Rep.  7,  12  Amh  Cas.  757;  £x  parte  Toung, 
209  U.  S.  123,  155,  52  L.  ed.  714,  727,  13 
LJLA.(N.S.)  932,  28  Sup.  Ct  Rep.  441,  14 
Ann.  Cas.  764;  Portland  R.  Light  ft  P.  Co. 
T.  Portland,  210  Fed.  669. 

The  bin  having  presented  a  Federal  <iue8- 
tion,  the  district  court  was  under  a  duty  to 
take  jurisdiction  of  the  case  and  decide  all 
questions  in  the  case,  regardless  of  Which 
way  those  questions  should  ultimately  be 
determined. 

SiHr  T.  LouisviUe  ft  N.  R.  Co.  213  U.  6. 
175, 191,  53  L.  ed.  753,  757,  29  Sup.  Ct.  Rep. 
451;  Willcox  v.  Consolidated  Gas  Co.  212 
U.  S.  19,  39,  40,  53  L.  ed.  382,  394,  395,  4 
L.RJL(N.S.)  1134,  29  Sup.  Ct.  Rep.  192,  15 
Ann.  Cas.  1034;  Mercantile  Trust  ft  D.  Co. 
T.  Columbus,  203  U.  8.  311,  319,  322,  51  L. 
ed.  198,  202,  203,  27  Sup.  Ct.  Rep.  83;  Knox- 
ville  Water  Co.  ▼.  Knoxville,  200  U.  8.  22, 
32,  50  L.  ed.  353,  358,  26  Sup.  Ct.  Rep.  224; 
Vicksburg  Waterworks  Co.  ▼.  Vicksburg, 
185  U.  S.  65,  82,  46  L.  ed.  808,  815,  22  Sup. 
Ct.  Rep.  58^;  The  Fair  ▼.  Kohler  Die  ft 
Specialty  Co.  228  U.  S.  22,  57  L.  ed.  716,  33 
Sup.  Ct.  Rep.  410. 

Mr.  Charles  F.  Cboate,  Jr.,  argued  the 
cause,  and,  with  Mr.  Jonathan  Taylor,  filed 
a  brief  for  appellee: 

The  bill  of  complaint  is  the  sole  source 
to  which  the  court  may  look  for  jurisdic- 
tional allegations. 

Memphis  ▼.  Cumberland  Teleph,  ft  Teleg. 
Co.  218  U.  S.  624,  54  L.  ed.  1185,  31  Sup. 
Ct.  Rep.  115;  Arkansas  ▼.  Kansas  ft  T.  Coal 
Co.  183  U.  S.  185, 188,  46  L.  ed.  144, 146,  22 
Sup.  Ct.  Rep.  47;  Bienville  Water  Supply 
Co.  V.  MobUe,  175  U.  S.  109,  44  L.  ed.  92, 
20  Sup.  Ct.  Rep.  40. 

Only  those  allegations  which  make  up  the 
plaintiff's  case,  and 'which  are  not  mere  an- 
ticipations of  the  defense  to  be  offered  by 
the  defendant,  may  be  looked  to. 

Florida,  C.  ft  P.  R.  Co.  v.  BeU,  176  U.  S. 
321,  44  L.  ed.  486,  20  Sup.  Ct.  Rep.  399; 
Metcalf  T.  Watertown,  128  U.  S.  586,  32  L. 
ed.  543,  9  Sup.  Ct.  Rep.  173;  Tennessee  v. 
Union  ft  Planters'  Bank,  152  U.  S.  454,  38 
L.  ed.  511,  14  Sup.  Ct.  Rep.  654. 

The  allegations  of  the  bill  are,  in  brief, 
that  the  state  statutes  under  which  the 
plaintiff  purports  to  act  have  been  repealed, 
and  that  therefore  the  defendant  is  acting 
without  any  authority  whatever.  On  this 
ground  alone  the  district  court  was  justi- 
fied in  refusing  to  entertain  jurisdiction. 

Barney  y.  New  York,  193  U.  S.  430,  48 
L.  ad.  737,  24  Sup.  Ct.  Rep.  502. 
744 


Mr.  Justice  'Holmes  delivered  the  opin- 
ion of  the  court: 

This  is  a  bill  in  equity,  brought  by  an 
Ohio  corporation  against  a  city  of  Ohio,  to 
prevent  the  latter  from  appropriating  the 
waters  of  the  Cuyahoga  river  and  its  tribu- 
taries above  a  certain  point.  It  alleges  that 
the  plaintiff  was  incorporated  under  the  laws 
of  Ohio  for  the  purpose  of  generating  hydro- 
electric power  by  means  of  dams  and  canals 
upon  the  said  river,  and  of  disposing  of  the 
same;  that  it  has  adopted  surveys,  maps, 
plans,  and  profiles  to  that  end,  has  entered 
upon,  located,  and  defined  the  property 
rights  required,  has  instituted  condemnaticHt 
proceedings  to  acquire  a  part  at  least  of 
such  property,  has  sold  bonds  and  qpent  large 
sums  and  has  gained  a  paramount  right  to 
the  water  and  necessary  land.  The  bill  also 
alleges  that  the  city  has  passed  an  ordinance 
appropriating  the  water,  and  directing  its 
solicitor  to  take  proceedings  in  court 
for  the  assessment  of  the  compensation  to  be 
paid.  The  district  court  dismissed  the  bill 
for  want  of  jurisdiction  on  the  ground  tliat 
it  presented  no  Federal  question,  because,  if 
the  plaintiff  had  any  rights,  they  could  be 
appropriated  only  by  paying  for  them  in 
pursuance  of  the  verdict  of  a  jury  and  a 
judgment  of  a  court.  It  made  the  statutory 
certificate,  and  the  case  comes  here  by 
direct  appeal.    210  Fed.  524. 

It  appears  to  us  that  sufficient  attention 
was  not  paid  to  other  allegations  of  the  bilL 
After  setting  out  various  passages  from  the 
statutes  and  Constitution  of  Ohio,  and  con- 
cluding that  the  city  has  no  constitutional 
power  to  take  the  property  and  franchises 
that  the  plaintiff  is  alleged  to  own,  or  any 
property  for  a  water  supply,  it  alleges  that 
the  city  does  not  intend  to  institute  any 
proceedings  against  the  plaintiff,  but  in- 
tends to  take  its  property  [464]  and  rights 
without  compensation;  that  it  is  building  a 
dam  and  has  taken  steps  that  will  destroy 
the  plaintiff's  rights;  that  it  is  insolvent; 
that  the  purpose  of  the  ordinance  and  cer- 
tain statutes  referred  to  is  to  appropriate 
and  destroy  those  rights  without  compensa- 
tion; that  the  defendant  purports  to  be  act- 
ing imder  the  ordinance,  and  that  in  so  act- 
ing it  violates  art.  L,  §  10,  and  the  14th 
Amendment  •  of  the  Constitution  of  the 
United  States.  It  is  established  that  such 
action  is  to  be  regarded  as  the  action  of  the 
state.  Raymond  v.  Chicago  Union  Traction 
Co.  207  U.  S.  20,  52  L.  ed.  78,  28  Sup.  Ct 
Rep.  7,  12  Ann.  Cas.  757;  Home  Teleph.  ft 
Teleg.  Co.  V.  Los  Angeles,  227  U.  S.  278,  57 
L.  ed.  510,  33  Sup.  Ct.  Rep.  312.  Whether 
the  plaintiff  has  any  rights  that  the  city  is 
bound  to  respect  can  be  decided  only  by 
taking  jurisdiction  of  the  case;  and  the 
same   is   true   of   other   questions   raised. 

240  U.  fiU 


191S. 


GREAT  NORTHERN  R.  CO.  ▼.  KNAPP. 


464 


Therefore  it  will  be  necessary  for  the  Dis 
trict  Court  to  deal  with  the  merits,  and  to 
that  end  the  decree  must  be  reverted. 
Decree  reversed. 


GREAT  NORTHERN  RAILWAY  COM- 

PANY,  Plff.  In  Err., 

▼. 

O.  B.  KNAPP. 

(See  S.  C.  Reporter's  ed.  464^66.) 

Error  to  state  court  —  following  ded- 
slon  below  —  qaestlon  for  J[arjr. 

Only  in  case  of  palpable  error  should 
the  Federal  Supreme  Court  disturb,  on  writ 
of  error  to  a  state  court,  a  judgment  in  an 


action  brought  under  the  Federal  emptojert* 
liability  act  of  April  22,  1908  (35  Stat,  at 
L.  65,  chap.  140,  Comp.  Stat.  1913,  §  8657), 
which  presents  no  question  as  to  the  inter* 
pretation  of  any  provision  of  that  statute, 
or  as  to  the  definition  of  le^l  principle  in 
its  application,  but  simply  mvolves  an  ap- 
preciation of  all  the  facts  and  admissible 
inferences  in  the  particular  case  for  the 
purpose  of  determining  whether  there  were 
matters  for  the  consideration  of  the  jury, 
the  state  courts,  trial  and  appellate,  hav- 
ing held  that  there  were. 

[For  other  casei,  see  Appeal  end  Error,  VIII. 
m,  6,  in  Digest  Sup.  Ct.  1908.] 

[No.  690.] 

Argued  February  24,  1916.    Decided  March 

20,  1916. 


Nor. — On  the  constitutionality,  applica- 
tion, and  effect  of  the  Federal  employers' 
liability  act — see  notes  to  Lamphere  v.  Ore- 
gon R.  ft  Nav.  Co.  47  LJl.A.(N.S.)  88,  and 
Seaboard  Air  Line  R.  Co.  ▼.  Horton,  L.RJ^. 
1915C,  47. 

On  the  general  subject  of  writs  of  error 
from  the  United  States  Supreme  Court  to 
state  courts — see  notes  to  Martin  ▼.  Hun- 
ter, 4  L.  ed.  U.  S.  97;  Hamblin  v.  Western 
Land  Co.  37  L.  ed.  U.  S.  267;  Re  Buchanan, 
39  L.  ed.  U.  S.  884,  and  Kipley  v.  Illinois, 
42  L.  ed.  U.  S.  998. 

On  what  adjudications  of  state  courts 
can  be  brought  up  for  review  in  the  Su- 
preme Court  of  the  United  States  by  writ 
of  error  to  those  ^urts— see  note  to  Apex 
Transp.  Co.  y.  Oarbade,  62  L.R.A.  513. 

On  how  and  when  questions  must  be 
raised  and  decided  in  a  state  court  in  order 
to  make  a  case  for  a  writ  of  error  from 
the  Supreme  Court  of  the  United  States — 
see  note  to  Mutual  L.  Lis.  Co.  v.  McGrew, 
63  L.RJ^.  33. 

On  what  questions  the  Federal  Supreme 
Court  will  consider  in  reviewing  the  judg- 
ments of  state  courts— see  note  to  Missouri 
«x  rel.  Hill  V.  Dockery,  63  L.R.A.  571. 

Jlrror  to  state  court  in  cases  arising  under 
the  Federal  employers'  liability  act. 

A  contention  in  a  state  court  in  an  action 
based  solely  upon  a  Federal  statute,  like 
the  employer's  liability  act,  that  there  was 
no  evidence  tending  to  show  liability  under 
that  statute,  presents  a  Federal  question 
which,  when  denied,  will  support  a  writ  of 
error  from  the  Federal  Supreme  Court  to 
the  highest  state  court.  St.  Louis,  I.  M. 
&  S.  R.  Co.  ▼.  McWhirter,  229  U.  S.  265,  57 
L.  ed.  1179,  33  Sup.  Ct.  Rep.  858. 

Federal  questions  which  will  give  juris- 
diction to  the  Federal  Supreme  Court  of  a 
writ  of  error  to  a  state  court  in  a  case 
arising  under  the  Federal  employers'  liabil- 
ity act  of  April  22,  1908,  are  presented  by 
contentions  that  the  trial  court  erred  in 
refusing  to  instruct  a  verdict  on  the  ground 
that  there  was  no  evidence  tending  to  show 
either  negligeoioe  or  that  the  carrier  or  the 

•  0   li.  6d. 


deceased,  at  the  time  of  the  particular 
transaction  from  which  the  injury  arose, 
was  engaged  in  interstate  commerce,  and 
in  further  refusing  to  instruct  the  jury  that 
a  state  statute  limiting  the  amount  of  re- 
covery was  controlling.  Chicago,  R.  I.  &  P. 
R.  Co.  V.  Devine,  239  U.  S.  52,  ante,  140,  36 
Sup.  Ct.  Rep.  27. 

A  decision  of  a  state  court  adverse  to 
plaintiff  in  error's  contention  that,  by  the 
true  construction  of  the  Federal  employers' 
liability  and  safety  appliance  acts,  it  could 
rely  upon  the  common-law  defense  of  as- 
sumption of  risk,  is  reviewable  in  the  Fed- 
eral Supreme  Court.  Southern  R.  Co.  ▼. 
Crockett,  234  U.  S.  725,  68  L.  ed.  1564,  34 
Sup.  Ct.  Rep.  897. 

A  writ  of  error  will  lie  from  the  Federal 
Supreme  Court  to  review  a  decision  of  the 
highest  state  court,  which  sustained  the 
action  of  the  trial  court  in  overruling  cer- 
tain contentions  made  by  the  plaintiff  in 
error,  asserting  a  construction  of  the  Fed- 
eral employers'  liability  act  of  April  22, 
1908,  which,  if  acceded  to,  would  presum- 
ably have  produced  a  verdict  in  favor  of 
plaintiff  in  error,  and  consequent  immu- 
nity from  the  action.  Seaboard  Air  Line  R. 
Co.  ▼.  Horton,  233  U.  S.  492,  58  L.  ed.  1062, 
L.R.A.1915C,  1,  34  Sup.  Ct.  Rep.  635,  8  N. 
C.  C.  A.  834,  Ann.  Cas.  1915B,  475. 

The  contentions  of  the  defendant  railway 
company,  sued  in  the  state  courts  under  a 
state  statute,  for  the  death  of  an  em- 
ployee, that  the  injuries  which  caused  the 
death  were  received  while  the  company  was 
engaged,  and  while  he  was  employed  by  it, 
in  interstate  commerce;  that  its  liability 
for  his  death  was  exclusively  regulated  and 
controlled  by  the  employers'  liability  act 
of  April  22,  1908,  and  that,  if  liable,  it  was 
liable  only  to  his  personal  representatives, 
and  not  to  the  plaintiffs, — present  Federal 
questions  which,  when  decided  by  the  state 
court,  will  support  a  writ  of  error  from 
the  Federal  Supreme  Court.  St.  Louis,  S.  F. 
A  T.  R.  Co.  y.  Scale,  229  U.  8.  156,  67  L. 
ed.  1129,  83  Sup.  Ct  Rep.  651,  Ann.  Gas. 
1914C,  156. 

Whether  or  not  the  two  years'  limita- 
tion prescribed  by  the  employers'  UA.bViSAr| 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tesm» 


IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Minnesota  to  review  a  judgment 
which,  on  a  second  appeal,  affirmed  a  judg- 
ment of  the  District  Court  for  Meeker  Coun- 
ty, in  that  state,  in  favor  of  plaintiff  in  an 
action  under  the  Federal  employers'  liabil- 
ity act.    Affirmed. 

See  same  case  below,  on  first  appeal,  130 
Minn.  405,  153  N.  W.  848. 

The  facts  are  stated  in  the  opinion. 

Mr.  A.  li.  Janes  argued  the  cause,  and, 
with  Messrs.  M.  I*.  Countryman  and  E.  C. 
Lindley,  filed  a  brief  for  plaintiff  in  error: 

The  master  is  not  bound  to  see  that  his 
instrumentalities  are  absolutely  safe  and 
suitable,  nor  to  see  that  they  are  as  safe 
as   human    skill    and   foresight   can    make 


them,  nor  to  provide  appliances  which  maka 
accidents  impossible.  He  fulfils  hia  duty  to 
his  employee  when  he  provides  machinery 
reasonably  safe  and  suitable  for  the  work 
being  done. 

Washington  ft  O.  R.  Co.  ▼.  McDade,  135 
U.  S.  554,  34  L.  ed.  235,  10  Sup.  Ct  Rep. 
1044;  Reese  v.  Philadelphia  &  R.  R.  Co.  239 
U.  S.  463,  ante,  384,  36  Sup.  Ct.  Rep.  134. 

Even  assuming  negligence  in  failing  to 
guard  the  set  screws,  such  failure  cannot  be 
held  to  be  a  proximate  cause  of  the  acci- 
dent. 

Mississippi  River  Logging  Co.  y.  Schnei- 
der, 20  C.  C.  A.  300,  34  U.  S.  App.  743,  74 
Fed.  195. 

The  undisputed  facts  in  this  case  present 
a  particularly  clear  case  of  assumption  of 


act  of  April  22, 1908,  for  actions  under  that 
act,  was  in  effect  disregarded  b^  permitting 
the  amendment  of  the  oomplamt  so  as  to 
state  distinctly  that,  at  the  time  of  the 
injury,  the  defendant  was  engaged  and  the 
plaintiff  employed  in  interstate  commerce, 
is  a  Federal  question  subject  to  re-examina- 
tion by  writ  of  error  to  a  state  court,  how- 
ever much  the  allowance  of  the  amendment 
otherwise  might  have  rested  in  discretion, 
or  have  been  a  matter  of  local  procedure. 
Seaboard  Air  Line  R.  Co.  v.  Renn,  241  U.  S. 
291,  post,  1006,  36  Sup.  Ct.  Rep.  567. 

No  question  under  the  laws  of  the  United 
States  which  may  be  reviewed  by  writ  of 
error  to  a  state  court  majr  be  based  upon 
the  fact  that  the  applicability  of  the  Fed- 
eral employers'  liability  act  of  April  22, 
1908,  first  appeared  from  an  amendment  to 
the  declaration,  which  alleged  the  same 
facts  except  that  it  did  not  allege,  as  did 
the  amendment,  that  plaintiff  was  injured 
on  an  interstate  trip.  Kansas  City  West- 
em  R.  Co.  V.  McAdow,  240  U.  S.  51,  ante, 
520.  36  Sup.  Ct.  Rep.  252. 

The  contention  in  a  suit  in  a  state  court 
based  upon  the  Federal  employers'  liability 
act  of  April  22,  1908,  that  the  jury  was 
misled  concerning  the  doctrine  of  assump- 
tion of  risk  b^  two  statements  by  the  court, 
which,  standing  alone,  may  be  confusing, 
may  have  sufficient  strength  to  serve  as  the 
basis  of  a  writ  of  error  from  the  Federal 
Supreme  Court,  although  that  court  may 
agree  with  the  state  court  in  thinking  that 
the  statements  in  question  could  not  have 
produced  a  mistaken  conception  in  the 
minds  of  the  jury,  when  considered  with 
the  express  instruction  concerning  the 
doctrine  of  assumption  of  risk  as  applied 
to  the  case  at  bar.  Seaboard  Air  Line  R. 
Co.  V.  Padgett,  236  U.  S.  668,  69  L.  ed.  777, 
35  Sup.  Ct.  Rep.  481. 

The  contention  that  a  right  or  immunity 
under  the  Federal  employers'  liability  act 
of  April  22,  1908,  was  denied  by  the  ruling 
of  a  state  court  that  a  declaration  stating 
a  good  cause  of  action  under  that  act  could 
serve  as  the  basis  of  recovery  under  the 
state  law  after  first  eliminatins  the  alle- 

^tion  that  the  injury  occurred  in  inter- 

740 


I  state  commerce,  which  the  proof  demon- 
strated was  unwarranted,  is  so  lacking  in 
merit  as  not  to  serve  as  the  basis  for  a 
writ  of  error  from  the  Federal  Supreme 
Court  to  the  state  court.  Wabash  R.  Co. 
v.-  Hayes,  234  U.  S.  86,  58  L.  ed.  1226,  34 
Sup.  Ct.  Rep.  720,  6  N.  C.  C.  A.  224. 

The  want  of  merit  in  the  contention  that 
a  state  statute  limiting  the  amount  of  re- 
covery is  controlling  in  a  suit  arising  under 
the  Federal  emplovers'  liability  act  of  April 
22,  1908,  is  so  well  established  by  previous 
decisions  of  the  Federal  Supreme  Court  con- 
cerning the  exclusive  operation  and  effect 
of  that  statute  over  the  subject  with  whidi 
it  deals  that  the  presence  of  such  question 
in  the  case  will  not  prevent  the  Federal 
Supreme  Court  from  granting  a  motion  to 
affirm  the  judgment  on  a  writ  of  error  to 
a  state  court.  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Devine,  239  U.  S.  52,  ante,  140,  36  Sup.  Ct 
Rep.  27. 

The  contention  on  a  writ  of  error  to  a 
state  court  in  a  case  arising  under  the  em- 
ployers' liability  act  of  April  22,  1908,  that 
the  trial  court  should  have  instructed  a  ver- 
dict in  favor  of  the  railway  company,  on 
the  ground  that  there  was  no  evidence  tend- 
ing to  show  either  negligence  or  that  the 
company  or  the  deceased,  at  the  time  of  the 
particular  transaction  from  which  the  in- 
jury arose,  was  encaged  in  interstate  com- 
merce,— is  too  lackme  in  substance  to  pre- 
vent the  granting  of  a  motion  to  aflarm, 
where  what  is  really  involved  is  a  mere  dis- 
pute concerning  the  weight  of  conflicting 
tendencies  of  proof.     Ibid. 

The  Federal  question  presented  by  the 
contention  that  error  was  committed  by  the 
state  trial  court  in  not  takins  from  the 
jury  a  case  based  upon  the  Federal  em- 
ployers' liability  act  of  April  22,  1908,  and 
in  n^  instructing  the  jury  to  render  a 
verdict  for  the  defendant,  upon  the  as- 
sumption that  there  was  no  evidence  suf- 
ficient to  justify  the  submission  of  the  case 
to  the  jury  for  its  consideration,  manifestly 
cannot  be  said  to  be  so  frivolous  as  not  to 
serve  as  the  basis  of  a  writ  of  error  from 
the  Federal  Supreme  Court,  where  ths 
highest  state  court  was  divided  on  the  ques* 

240  U.  8. 


1915. 


GREAT  NORTHERN  R.  00.  t.  KNAPP. 


risk  as  that  defense  existed  at  oommen  law 
and  is  interpreted  by  the  Federal  courts. 

ChocUw,  0.  &  G.  R.  Co.  y.  McDade,  191 
U.  S.  64,  65,  68,  48  L.  ed.  96,  99,  100,  24 
Sup.  Ct.  Rep.  24,  15  Am.  Ncj.  Rep.  230; 
Butler  T.  Frazee,  211  U.  S.  459,  466,  53  L. 
ed.  281,  285,  29  Sup.  Ct.  Rep.  136;  Kirk- 
patrick  v.  St.  Louis  A  S.  F.  R.  Co.  87  C.  C. 
A.  35,  159  Fed.  855;  St.  Louis  Cordage  Co. 
V.  Miller,  68  L.RA.  551,  61  C.  C.  A.  477, 
126  Fed.  495,  15  Am.  Neg.  Rep.  476;  Chi- 
cago, B.  &  Q.  R.  Co.  Y.  Shalstrom,  45  L.Rji. 
(N.8.)  387,  115  C.  C.  A.  515,  195  Fed.  725; 
Brown  ▼.  Hitrits,  113  C.  C.  A.  84,  192  Fed. 
528;  Cudahy  Packing  Co.  y.  Marcan,  54 
LJtA.  258,  45  0.  C.  A.  515,  106  Fed.  645, 
9  Am.  Neg.  Rep.  670;  Murphy  v.  American 
Rubber  Co.  159  Mass.  266,  34  N.  B.  268; 


Shea  y.  Kansas  dtj,  Ft.  S.  &  M.  R.  Co.  76 

Mo.  App.  29;  Mclntire  y.  White,  171  Mass. 
170,  50  N.  £.  524;  Feely  y.  Pearson  Cordage 
Co.  161  Mass.  426,  37  N.  E.  368;  Stonrs  y. 
Michigan  Starch  Co.  126  Mich.  666,  86  N. 
W.  134;  Disano  y.  New  England  Steam 
Brick  Co.  20  R.  L  452,  40  Atl.  7,  4  Am.  Neg. 
Rep.  219;  Omaha  Packing  Co.  y.  Sanduski, 
19  L.RJL(N.S.)  355,  84  C.  C.  A.  89,  155. 
Fed.  807;  Balle  y.  Detroit  Leather  Co.  73 
Mich.  158,  41  N.  W  216;  Goudie  y.  Foster, 
202  Mass.  226,  88  N.  E.  663;  Sayersnick  y. 
Schwarzschild  ft  S.  Co.  141  Mo.  App.  509, 
125  S.  W.  1192;  Schultz  y.  Chicago,  R.  I.  ft 
P.  R.  Co.  145  Mo.  App.  262,  129  S.  W.  1051; 
Wilson  V.  Chess  ft  W.  Co.  117  K7.  567,  78 
S.  W.  453;  M.  Rumely  Co.  y.  Myer,  40  Ind. 
App.  460,  82  N.  E.  97;  Steffen  y.  Illinois 


tion,  and  some  members  of  the  Federal  Su- 
preme Court  consider  that  the  proposition 
affords  adequate  ground  for  reversal.  Sea- 
board Air  Line  R.  Co.  y.  Padgett,  supra. 

A  controUinff  Federal  question  is  neces- 
sarily involved  in  a  judgment  of  a  state 
court  refusing  to  measure  the  liability  of 
the  defendant  interstate  railway  carrier  in 
an  action  by  an  employee  to  recover  dam- 
ages for  personal  injuries,  by  the  employ- 
ers' liability  act  of  April  22,  1908,  where, 
although  the  pleadings  contained  no  refer- 
ence to  that  .act,  evidence  was  admitted 
over  the  plaintiff's  objection  which  showed 
that  the  train  on  which  he  was  riding  at 
the  time  of  the  injury  was  engaged  in  in- 
terstate commerce,  whereupon  the  defend- 
ant carrier  insisted  that  the  case  was  gov- 
erned by  that  statute,  and  that  its  applica- 
tion and  enforcement  would  defeat  any  re- 
covery. Toledo,  St.  L.  ft  W.  R.  Co.  v.  Slav- 
in,  236  U.  S.  454,  59  L.  ed.  671,  35  Sup.  Ct. 
Rep.  306. 

A  decision  of  the  highest  court  of  a  state, 
which  affirmed  a  judgment  in  favor  of 
plaintiff  in  an  action  in  which  the  riffht  to 
relief  was  exclusively  based  upon  the  liours 
of  service  act  of  March  4,  1007,  and  the 
employers'  liability  act  of  April  22,  1908, 
and  in  which,  at  the  close  of  the  evidence, 
defendant  had  requested  the  court  to  in- 
struct thenury  to  find  in  its  favor,  neces- 
sarily involves  an  adverse  determination 
of  a  Federal  question,  «.  e.,  defendant's 
right  to  be  shielded  from  responsibility  un- 
der those  statutes  when  properly  applied, 
and  a  writ  of  error  will  therefore  lie  from 
the  Federal  Supreme  Court  to  the  state 
court.  St.  Louis,  L  M.  ft  S.  R.  Co.  y.  Mc- 
Whirter,  229  U.  a  265,  57  L.  ed.  1179,  57 
6up.  Ct.  Rep.  858. 

A  mere  rulinff  by  the  highest  state  court 
fai  a  suit  based  solely  upon  the  hours  of 
service  act  of  March  4,  1907,  and  the  em- 
ployers' liability  act  of  April  22,  1908,  that 
there  was  testimony  tendmg  to  show  negli- 
gence, affords  no  basis  for  the  contention 
that  the  Judgment,  which  affirmed  a  judg- 
ment below  in  favor  of  plaintiff,  was  rested 
upon  that  ground,  so  as  to  deprive  the  Fed- 
eral Supreme  Court  of  Jurisdiction  of  a 
60  li.  ad. 


writ  of  error  to  the  state  court,  on  the  the- 
ory that  the  case  was  decided  on  an  inde- 
pendent non-Federal  ground.    Ibid. 

An  immunity  from  liability  under  the 
employers'  liability  act  of  April  22,  1908, 
must  be  regarded  as  sufficiently  asserted 
for  the  purpose  of  sustaining  a  writ  of 
error  from  the  Federal  Supreme  Court  to 
the  highest  court  of  a  state,  whether  the 
question  was  properly  raised  in  the  trial 
court,  aocordins  to  uie  local  practice,  or 
not,  where  suok  immunity  was  expressly 
claimed,  and  the  highest  court  of  the  state 
either  decided  or  assumed  that  the  record 
sufficiently  presented  a  question  of  Fed- 
eral right,  and  decided  asainst  the  party 
asserting  that  right.  North  Carolina  R.  Co. 
V.  Zachary,  232  U.  S.  248,  58  L.  ed.  591, 
34  Sup.  Ct.  Rep.  305,  9  N.  C  C.  A.  109,  Ann. 
Cas.  1914C,  159. 

An  objection  by  an  interstate  railway 
carrier,  sued  for  the  death  of  an  employee, 
that,  if  liable  at  all,  it  was,  under  the  Fed- 
eral employers'  liability  act  of  April  22, 
1908,  liable  only  to  personal  representatives 
of  the  deceased,  and  not  to  the  plaintiffs, 
who  were  his  widow  and  parents,  was  in- 
terposed in  time,  so  that  the  state  courts 
erred  in  overruling  it,  where  the  petition 
stated  a  case  under  the  state  statute,  and 
the  carrier,  having  called  attention  to  the 
Federal  statute  by  special  exceptions,  and 
having  su^ested  that  the  state  statute 
might  not  M  the  applicable  one,  made  the 
spMifie  objection,  grounded  on  the  Federal 
statute,  after  the  evidence  disclosed  that 
the  real  ease  was  controlled  by  such  stat- 
ute. St.  Louis,  8.  F.  ft  T.  R.  Co.  y.  Scale, 
229  U.  S.  156,  57  L.  ed.  1129,  33  Sup.  Ct. 
Rep.  651,  Ann.  Gas.  1914C,  156. 

The  objection  that  a  carrier  sued  for  the 
death  of  an  employee  was  estopped  to  rely 
upon  the  Federal  employers'  liability  act 
of  April  22,  1908,  by  having  pleaded  con- 
tributory negligence,  and  thus  having  re* 
lied  upon  the  state  law,  is  not  available  to 
defeat  a  writ  of  error  from  the  Federal 
Supreme  Court  to  a  state  court,  where  the 
latter  court  held  that  the  Federal  question 
was  sufficiently  raised,  and  decided  it.  St. 
Louis,  L  M.  ft  &  R.  Co.  y.  Hesterly,  228 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


Steel  Co.  140  HL  App.  661;  Swift  &  Co.  ▼. 
Campbell,  97  IlL  App.  360;  Scharenbroich  v. 
St.  Cloud  Fiber- Ware  Co.  69  Minn.  116,  60 
N.  W.  1093;  Kyner  v.  Portland  Gold  Min 
Co.  106  C.  C.  A.  246,  184  Fed.  43;  Haines  v. 
Spencer  92  C.  C.  A.  668,  167  Fed.  266;  Glen- 
mont  Lumber  Co.  ▼.  R07,  61  C.  C.  A.  606, 
126  Fed.  624,  16  Am.  Neg.  Rep.  483;  E.  S. 
Higginfl  Carpet  Co.  v.  CKeefe,  26  C.  C.  A. 
220,  61  U.  S.  App.  74,  79  Fed.  900;  Amer- 
ican Dredging  Co.  ▼.  Walls,  28  C.  C.  A.  441, 
66  U.  S.  App.  460,  84  Fed.  428;  Ford  ▼.  Mt. 
Tom  Sulphite  Pulp  Co.  172  Mass.  644,  48 
L.RJl.  96,  62  N.  E.  1066;  Connelly  y.  Ham- 
ilton Woolen  Co.  163  Mass.  166,  39  N.  E. 
787 ;  Brown  v.  Tabor  Mill  Co.  22  Wash.  317, 
60  Pac.  1126;  Archibald  v.  Cygolf  Shoe  Co. 
186  Mass.  213,  71  N.  E.  316;  Labatt,  Mast. 


,&  S.  2d  ed.  §  1313,  p.  3687;  Mississippi 
River  Logging  Co.  v.  Schneider,  20  C  C.  A. 
390,  34  U.  S.  App.  743,  74  Fed.  201. 

The  defense  of  assumption  of  risk  was 
applied  by  the  supreme  court  of  the  state 
of  Minnesota  to  the  facts  of  this  case  as 
that  court  had  modified  this  defense  when 
applied  to  cases  arising  under  the  safety 
appliance  acts  of  that  state. 

Snyder  ▼.  Waldorf  Box  Board  Co.  110 
Minn.  42,  124  N.  W.  460;  Glockner  v.  Hard- 
wood Mfg.  Co.  109  Minn.  32,  122  K.  W. 
466,  123  N.  W.  807,  18  Ann.  Cas.  130;  Fal- 
coner y.  Sherwood,  118  Minn.  361, 136  N.  W. 
1039. 

The  supreme  court  of  the  state  of  Minne- 
sota confused  the  defense  of  assumption 
of  risk  and  of  contributory  negligence. 


U.  S.  702,  67  L.  ed.  1031,  33  Sup.  Ct.  Rep. 
703. 

A  decision  of  a  state  court,  having  sub- 
stantial support  in  the  record,  that  the 
pleadings  and  evidence  in  an  action  for 
death  against  an  interstate  railway  com- 
pany demonstrate  that  the  deceased  was  in 
the  employ  of  an  express  company  rather 
than  of  the  railway  company,  and  that 
therefore  the  defendant's  liability  was  not 
controlled  by  the  Federal  employers'  lia- 
bility act  of  April  22,  1908,  involves  no 
denial  of  any  asserted  Fedend  right,  and 
is  not  reviewable  in  the  Federal  Supreme 
Court.  Missouri,  K.  &  T.  R.  Co.  v.  West, 
232  U.  S.  682,  68  L.  ed.  796,  34  Sup.  Ct. 
Rep.  471. 

The  contention  that  an  agreement  by  a 
railway  employee  that  his  acceptance  of 
''benefits  for  injury"  from  a  railway  com- 
pany's relief  department  shall  release  the 
company  from  all  liability  for  damages 
growing  out  of  such  injury,  although  it  may 
be  invalid  as  to  such  company  under  the 
Federal  employers'  liability  act  of  April 
22,  1008,  §  6,  operates  to  discharge  another 
railway  company  as  a  joint  tort  feasor  from 
its  common -law  liability,  presents  no  Fed- 
eral question  which  may  be  reviewed  by  the 
Federal  Supreme  Court  on  writ  of  error  to 
a  state  court,  where  the  latter  court  held 
that  the  release,  being  invalid  as  to  the  em- 
ploying company,  was  not  available  as  a 
defense  to  the  other  company.  Chicago  & 
A.  R.  Co.  ▼.  Wagner,  239  U.  S.  462,  ante, 
379,  36  Sup.  Ct.  Rep.  136. 

Questions  of  general  law,  raised  in  an 
action  under  the  Federal  employers'  lia- 
bility act  of  April  22,  1908,  which  involve 
no  construction  of  the  Federal  statute,  and 
neither  directly  nor  indirectly  affect  any 
Federal  right,  will  not  be  reviewed  on  a 
writ  of  exroT  from  the  Federal  Supreme 
Court  to  a  state  court.  Central  Vermont 
R.  Co.  ▼.  White,  238  U.  S.  607,  69  L.  ed. 
1433,  36  Sup.  Ct.  Rep.  866,  Ann.  Cas.  1916B, 
262,  9  N.  C.  C.  A.  266. 

The  Federal  Supreme  Court,  when  re- 
viewing a  judgment  of  a  state  court  in  an 
action  in  which  the  riffht  to  recover  was 
based  upon  the  Federal  employers'  liabil- 
74S 


ity  act  of  April  22,  1908,  cannot  consider 
merely  incidental  questions,  not  Federal  in 
character,  «.  e.,  those  which  do  not  in  their 
essence  involve  the  existence  of  the  right 
in  the  plaintifif  to  recover  under  the  Federal 
statute  to  which  his  recourse  by  the  plead- 
ings was  exclusively  confined,  or  the  con- 
verse, the  right  of  the  defendant  to  be 
shielded  from  responsibility  under  that 
statute,  because,  when  properly  applied,  no 
liability  on  his  part  from  the  statute 
would  result.  SeacM>ard  Air  Line  R.  Co.  v. 
Padgett,  236  U.  S.  668,  69  L.  ed.  777,  35 
Sup.  Ct.  Rep.  481. 

Questions  in  a  suit  under  the  Federal 
employers'  liability  act  of  April  22,  1908, 
which  relate  to  matters  of  pleading,  to  the 
admissibility  of  evidence,  to  the  sufficiency 
of  exceptions,  and  to  various  rulings  of  the 
trial  courts,  involving  no  construction  of 
the  Federal  statute,  cannot  be  considered 
on  a  writ  of  error  from  the  Federal  Su- 
preme Court  to  a  state  court.  Central  Ver- 
mont R.  Co.  V.  White,  supra. 

The  excessiveness  of  an  award  for  pain 
and  sufi'ering  of  a  deceased  railway  em- 
ployee in  an  action  brought  under  tfoe  em- 
ployers' liability  act  of  April  22,  1908,  as 
amended  bv  the  act  of  April  6,  1910,  is  a 
question  of  fact  which  is  not  open  to  re- 
vision in  the  Federal  Supreme  Court  on 
writ  of  error  to  a  state  court.  St.  Louis, 
I.  M.  &  S.  R.  Co.  V.  Craft,  237  U.  S.  648. 
69  L.  ed.  1160,  36  Sup.  Ct.  Rep.  704,  9 
N.  C.  C.  A.  764. 

The  question  whether  the  declaration  in 
an  action  against  a  railway  company  for 
the  wrongful  killing  of  an  employee  per- 
mitted a  recovery  at  common  law  is  one  of 
local  law  in  the  absence  of  any  showing 
bringing  the  injury  within  the  Federal' em- 
ployers^ liability  act  of  April  22,  1908,  and 
is,  therefore,  not  open  for  review  in  the 
Federal  Supreme  Court  on  writ  of  error  to 
a  state  court.  Osborne  v.  Gray,  241  U.  S. 
16,  post,  86.5,  36  Sup.  Ct.  Rep.  486. 

The  ruling  of  the  highest  court  of  a  state 
that  the  failure  of  the  original  declaration 
in  a  suit  under  the  Federal  employers'  lia- 
biUty  act  of  AprU  22,  1908,  to  show  that 
the   employee    was    engaged    in    interstate 

240  U.  S. 


1916. 


GREAT  NORTHERN  R,  CO.  v.  KNAPP. 


Waflhingion  &  G.  R.  Co.  v.  McDade,  135 
U.  S.  554,  34  L.  ed.  235,  10  Sup.  Ct.  Rep. 
1044;  St.  Louis  Cordage  Co.  v.  Miller,  63 
L.R.A.  651,  61  a  C.  A.  477,  126  Fed.  495, 
15  Am.  Neg.  Rep.  476;  Seaboard  Air  Line 
R.  Co.  y.  Horton,  233  U.  S.  402.  58  L.  ed. 
1062,  L.RA.1915C,  1,  34  Sup.  Ct.  Rep.  635, 
Ann.  Caa.  1015B,  475,  8  N.  C.  C.  A.  834; 
Chicago,  B.  &  Q.  R.  Co.  v.  Shalstrom,  45 

L.RJ^.(N.S.)  387,  116  C.  C.  A.  515,  195  Ked. 

725. 

Plaintiff  in  error  in  this  case  was  entitled 

to  a  directed  verdict. 

Chicago,  B.  &  Q.  R.  Co.  v.  Shalstrom,  45 

X.RJ^.(N.S.)  389,  115  C.  C.  A.  515,  195  Fed. 

730;    Cudahy   Packing   Co.    v.    Marcan,   64 

I.JLA.  258,  45  C.  C.  A.  515,  106  Fed.  648, 


9  Am.  Neg.  Rep.  670;  Morse  v.  Minneapolis 
&  St.  L.  R.  Co.  30  Minn.  465, 16  N.  W.  358; 
Manore  v.  Kilgore-Peteler  Co.  107  Minn. 
347, 120  N.  W.  340;  Mattson  t.  Chicago,  St. 
P.  M.  &  0.  R.  Co.  103  Minn.  239,  114  N.  W. 
759;  OT^eil  v.  Great  Northern  R,  Co.  101 
Minn.  467,  112  N.  W.  625. 

Mr.  Tom  Davis  argued  the  cause,  and, 
with  Messrs.  Ernest  A.  Michel  and  John  I. 
Davis,  filed  a  brief  for  defendant  in  error: 

Assumption  of  risk  is  a  waiver  of  defects 
and  dangers  by  an  employee,  and  a  consent 
under  an  express  or  implied  contract  to  as- 
sume them,  whether  he  is  careful  or  negli- 
gent in  his  conduct;  the  doctrine  being 
based  on  the  maxim  Volenti  non  fit  injuria. 

Miller   v.   White   Bronze  Monument  Co. 


commerce  at  the  time  of  his  injury,  was 
cured  by  a  charge  in  the  plea  and  ad  mis* 
Bion  in  the  replication  that  he  was  so  em- 
ployed, is  binding  on  the  Federal  Supreme 
Court  on  writ  of  error  to  the  state  court. 
Central  Vermont  R.  Co.  v.  White,  supra. 

The  objection  that  an  instruction,  in  an 
action  under  the  Federal  employers'  liabil- 
ity act  of  April  22,  1908,  on  the  assumption 
of  risk,  did  not  state  as  an  element  the 
appreciation  by  the  employee  of  the  danger 
of  the  situation  as  necessary  to  his  assump- 
tion of  risk,  is  not  available  on  ,  writ  of 
error  from  the  Federal  Supreme  Court  to 
a  state  court,  where  the  objection  made  at 
the  trial  was  the  general  one  that  the  in- 
struction did  not  correctly  state  the  com- 
mon-law doctrine  of  assumption  of  risk, 
and  in  the  state  court  of  last  resort  the  at- 
tack was  based  upon  the  sole  ground  that 
assumption  of  risk  was  not  available  as  a 
defense  under  the  Federal  statute.  Jacobs 
V.  Southern  R.  Co.  241  U.  S.  229,  post,  970, 
36  Sup.  Ct.  Rep.  588. 

Whether  state  or  congressional  legisla- 
tion governs  a  personal-injury  action 
brought  by  an  employee  against  an  electric 
railway  company  need  not  be  determined 
by  the  Federal  Supreme  Court  on  writ  of 
error  to  a  state  court  to  review  a  judgment 
in  favor  of  the  employee,  where  the  state 
and  Federal  statutes  are  so  similar  that  the 
railway  company's  liabilitv  does  not  appear 
to  be  affected  by  the  Question  which  of  them 
governed  the  case.  Kansas  City  Western 
R.  Co.  V.  McAdow,  240  U.  S.  51,  ante,  520, 
36  Sup.  Ct.  Rep.  252. 

The  refusal  of  a  state  trial  court,  sus- 
tained by  the  state  court  of  last  resort,  to 
take  from  the  jury  an  action  imder  the  Fed- 
eral employers'  liability  act  of  April  22, 
1908,  by  directing  a  verdict  for  defendant, 
will  not  be  disturbed  by  the  Federal  Su- 
preme Court  on  writ  of  error  unless  clearly 
erroneous.  Louisville  &  N.  R.  Co.  v.  Stew- 
art, 241  U.  S.  261,  post,  989,  36  Sup.  Ct.  Rep. 
686. 

Without  a  clear  conviction  of  error,  the 
Federal  Supreme  Court  will  not  reverse,  on 
writ  of  error  to  a  atate  court,  the  ruling 
of  both  courts  below  that  there  was  evi- 
•0  li.  ed. 


dence  tending  to  show  that  the  "next  of 
kin,"  for  whose  benefit  an  action  under  the 
Federal  employers'  liability  act  of  April  22, 
1908,  as  amended  by  the  act  of  April  5, 
1910,  was  brought  to  recover  damages  for 
the  negligent  killing  of  their  intestate  by 
his  interstate  railway  employer,  were  so 
dependent  on  the  deceased  as  to  justify  a 
recovery  imder  the  Federal  statute.  Sea- 
board Air  Line  R.  Co.  v.  Kenney,  240  U.  8. 
489,  post,  762,  36  Sup.  Ct.  Rep.  458. 

The  concurrent  determination  of  the  state 
trial  and  appellate  courts  that  the  evidence 
showed  that  a  deceased  railway  employee, 
for  whose  death  an  action  was  brought 
under  the  Federal  employers'  liability  act 
of  April  22,  1908,  as  amended  by  the  act  of 
April  5,  1910,  assumed  the  risk  of  danger 
which  resulted  in  his  injury  and  death,  will 
not  be  disturbed  by  the  Federal  Supreme 
Court  on  writ  of  error  unless  clearly 
erroneous.  Baugham  v.  New  York,  P.  & 
N.  R.  Co.  241  U.  S.  237,  post,  977,  36  Sup. 
Ct.  Rep.  592. 

A  judgment  under  the  Federal  employers' 
liability  act  of  April  22,  1908,  as  amended 
by  the  act  of  April  6,  1910,  which  includes  a 
recovery  both  for  the  decedent's  conscious 
pain  and  suffering  and  for  the  pecuniary 
loss  sustained  by  the  relatives  or  next  of 
kin  for  whose  benefit  the  action  was 
brought,  will  not  be  reversed  by  the  Federal 
Supreme  Court  on  writ  of  error  to  a  state 
court  because  the  jury  was  not  required  to 
specify  in  its  verdict  the  amount  awarded 
on  account  of  each  distinct  liability,  where 
the  verdict  seems  in  harmony  with  local 
practice,  and  has  been  approved  by  the 
courts  below.  E^ansas  City  Southern  R.  Co. 
V.  Leslie,  238  U.  S.  599,  59  L.  ed.  1478,  35 
Sup.  Ct.  Rep.  844. 

Reversible  error  is  committed  by  the  high- 
est court  of  a  state  in  ruling  that  evidence 
of  contributory  negligence  in  an  action 
under  the  Federal  employers'  liability  act 
of  April  22,  1908,  as  amended  by  the  act  of 
April  5,  1910,  which  it  found  that  the  trial 
court  had  rejected  for  a  wrong  reason,  vig., 
because  contributory  negligence  was  not 
pleaded,  was  nevertheless  properly  excluded 
because  it  was  not  offerea  lot  ^<^  «^\^^ 

1V^ 


SUPR£ME  COURT  OF  THE  UNITED  STATES. 


Got.  TtMM, 


141  Iowa,  701,  118  N.  W.  618,  18  Ann.  Gas. 
957;  Words  &  Phrases,  2d  series,  324-327. 

TIm  general  definition  as  given  by  most 
of  the  courts  is  that  assumption  of  risk 
rests  on  contract,  either  express  or  implied. 
However,  some  of  the  courts  hold  that  as- 
sumption of  risk  is  based,  not  upon  the 
contract,  but  on  the  principle  expressed  by 
the  maxim  Volenti  non  fit  injuria. 

Rase  Y.  Minneapolis,  St.  P.  &  S.  Ste.  M. 
R.  Co.  107  Minn.  260,  21  L.RA.(N.S.).  138, 
120  N.  W.  360. 

Hie  maxim  Volenti  non  fit  injuria  means 
that  he  who  consents  cannot  receive  an  in- 
jury. 

Rigsby  ▼.  Oil  Well  Supply  Co.  116  Mo. 
App.  207,  91  S.  W.  460;  4  Words  &  Phrases, 
2d  ed.  1200. 

Whether  assumption  of  risk  is  based  on 
the  contract,  voluntary  or  implied,  as  most 
of  the  courts  seem  to  hold,  or  whether  it  is 
based  on  the  maxim  Volenti  non  fit  injuria, 
the  deducible  rule,  from  all  the  decisions, 
seems  to  be  that  assumption  of  risk  is  the 
▼oluntary  contract  or  consent  of  a  servant 
to  take  the  chances  of  the  known  or  obvious 
dangers  of  his  employment,  and  to  relieve 
his  master  from  liability  therefor.  And  the 
meaning  of  the  doctrine  is  that  the  em- 
ployee has  waived  his  right  to  hold  his  em- 
ployer responsible  for  the  risk. 

Wood  V.  Victor  Mfg.  Co.  66  S.  C.  482,  45 
S.  £.  81,  14  Am.  Neg.  Rep.  620;  1  Words  k 
Phrases,  2d  series,  328. 

And,  in  assumption  of  risk  there  is  an 
election  deliberately  to  assume  the  risk  of 
injury  or  danger  likely  to  result,  in  the 
ordinary  course  of  employment. 

Yaioo  A  M.  Valley  R.  Co.  v.  Wright,  235 
U.  8.  876,  50  L.  ed.  277,  35  Sup.  Ct.  Rep. 
130. 

The  distinction  between  assumption  of 
risk  and  contributory  negligence  has  been 
pointed  out  in  a  large  number  of  cases, 
and  the  two  defenses  are  entirely  separate 
and  distinct. 


Rase  ▼.  Minneapolis,  St  P.  ft  S.  Ste.  M 
R.  Co.  107  Minn.  260,  21  L.RJL(N.S.)  138, 
120  N.  W.  360;  Hooper  v.  Columbia  &  G. 
R.  Co.  21  S.  C.  547,  63  Am.  Rep.  691;  Wood 
T.  Victor  Mfg.  Co.  66  S.  C.  482,  45  S.  E.  81, 
14  Am.  Neg.  Rep.  629;  Bodie  ▼.  Charles- 
ton &  W.  C.  R.  Co.  61  S.  C.  478,  39  S.  E. 
715,  10  Am.  Neg.  Rep.  473;  1  Words  & 
Phrases,  2d  series,  328,  329;  Seaboard  Air 
Line  R.  Co.  ▼.  Horton,  233  U.  S.  492,  58 
L.*ed.  1062,  L.R.A.1915C,  1,  34  Sup.  Ct.  Rep. 
635,  Ann.  Cas.  1015B,  475,  8  N.  C.  a  A. 
834;  Schlemmer  v.  Buffak>,  R.  ft  P.  R.  Co. 
205  U.  S.  1,  51  L.  ed.  681,  27  Sup.  Ct.  Rep. 
407;  Yasoo  ft  M.  Valley  R.  Co.  v.  Wright, 
235  U.  S.  376,  60  L.  ed.  277,  35  Sup.  Ct. 
Rep.  130. 

Whether  his  act  be  assumption  of  risk  or 
contributory  negligence,  it  was  for  the  jury 
to  determine  whether  it  would  bar  a  recov- 
ery, and  not  for  the  court.  And  where  the 
trial  court  upheld  the  verdict  of  the  jury, 
and  the  supreme  court  of  Minnesota  unani- 
mously affirmed  the  trial  court,  there  should 
be  an  affirmance  by  the  United  States  Su- 
preme Court. 

Texas  ft  P.  R.  Co.  ▼.  Swearingen,  196  U. 
S.  51,  49  L.  ed.  382,  25  Sup.  Ct.  Rep.  164,  17 
Am.  Neg.  Rep.  422;  Sioux  City  ft  P.  R.  Co. 
V.  Stout,  17  Wall.  657,  21  L.  ed.  745;  Jone 
v.  East  Tennessee,  V.  ft  G.  R.  Co.  128  U.  S 
443,  32  L.  ed.  478,  9  Sup.  Ct.  Rep.  118;  Dun 
lap  y.  Northeastern  R.  Co.  130  U.  S.  649,  .3! 
L.  ed.  1058,  9  Sup.  Ct.  Rep.  647;  Louisvill 
ft  N.  R.  Co.  v.  Woodson,  134  U.  S.  614,  3S 
L.  ed.  1032,  10  Sup.  Ct.  Rep.  628;  Washing 
ton  ft  G.  R.  Co.  Y.  McDade,  136  U.  S. 
34  L.  ed.  235,  10  Sup.  Ct.  Rep.  1044;  Dale^ 
V.  American  Printing  Co.  150  Mass.  77,  2' 
N.  E.  439;  Texas  ft  P.  R.  Co.  v.  Cox,  14 
U.  S.  503,  36  L.  ed.  829,  12  Sup.  Ct.  Re| 
905;  Kreigh  v.  Westinghouse,  C.  K.  ft 
214  U.  S.  258,  53  L.  ed.  989,  29  Sup. 
Rep.  619;  Richmond  ft  D.  R.  Co.  ▼.  Powci 
149  U.  S.  43,  37  L.  ed.  642,  13  Sup.  Ct.  Re: 
748,  7  Am.  Neg.  Cas.  369;  Union  P.  R.  Co. 


purpose  of  mitigating  the  damages,  where 
there  was  no  settled  local  rule  requiring 
counsel,  without  inquiry  by  the  court,  to  an- 
nounce in  advance  the  purpose  for  which 
evidence  is  tendered,  iuinpas  City  South- 
ern R.  Co.  Y.  Jones,  241  U.  S.  181,  post,  943, 
36  Sup.  Ct.  Rep.  513. 

A  verdict  found  on  the  first  trial  of  an 
action  for  death  imder  the  Federal  em- 
ployers' liability  act  of  April  22,  1908,  upon 
an  instruction  that  the  jury  should  find,  if 
anything,  "such  a  sum  as  will  fairly  com- 
pensate his  estate  for  his  death,"  cannot  be 
reinatated  by  the  Federal  Supreme  Court 
on  a  cross  writ  of  error  to  a  state  court  of 
last  resort,  which,  having  set  aside  a  verdict 
for  plaintiff,  rendered  on  the  first  trial,  and 
the  judgment  based  upon  it,  affirmed,  on  a 

second  Appeal,  a  judgment  for  plaintiff  in  a 

750 


lesser  amount,  rendered  on  the  second  tri( 
Louisville  ft  N.  R.  Co.  v.  Stewart,  supra. 

Ten  per  cent  damages  may  be  added  by 
state  court  of  last  resort  in  affirming 
judgment  for  plaintiff  in  an  action  un 
the  Federal  employers'  liability  act  of  An 
22,  1908,  where  the  defendant  obtainea 
supersedeas,  and  the  local  law  makes  10  , 
cent  the  cost  of  it  to  all  persons  il  the  juc — ^' 
ment  is  affirmed.  Ibid. 

Interest  may  be  allowed  bj  a  state  up-^^ 
a  judgment  for  plaintiff  nnoer  the  Fede^W 
employers'  liability  act  of  April  22,  19€^ 
from  the  time  when  it  was  retidered,  if  it 
provides    appellate    proceedinn    and    it* 
judgment  is  affirmed,  as,  but  for  sneh  pro- 
ceedingB,  interest  would  run  as  of  ooum 
until  Uie  judgment  was  paid.    Ibid. 

14«  V.  8. 


1915. 


GREAT  NORTHERN  U.  CO.  ▼.  KNAPP. 


465,  4M 


McDonald,  152  U.  S.  262,  38  L.  ed.  434,  14 
Sup.  Ct.  Rep.  610;  Patton  ▼.  Texas  &  P.  R. 
Go.  179  U.  S.  658,  45  L.  ed.  361,  21  Sup.  Ct 
Rep.  275;  Supreme  Lodge,  K.  P.  ▼.  Beck, 
181  U.  8.  50,  45  L.  ed.  741,  21  Sup.  Ct.  Rep. 
532;  Marande  ▼.  Texas  &  P.  R.  Co.  184  U. 
S.  173,  46  L.  ed.  487,  22  Sup.  Ct.  Rep.  340; 
Reese  ▼.  Philadelphia  ft  R.  R.  Co.  239  U.  S. 
463,  ante,  384,  36  Sup.  Ct.  Rep.  134;  Leach 
▼.  Burr,  188  U.  S.  510,  47  L.  ed.  567,  23  Sup. 
Ct.  Rep.  393. 

The  employee  assumes  the  ordinary  and 
usual  risk  of  the  unployment,  but  not  the 
risk  of  the  negligence  of  his  employer. 

Schkmmer  y.  Buffalo,  R.  ft  P.  R.  Co.  205 
U.  S.  1,  51  L.  ed.  681,  27  Sup.  Ct.  Rep.  407. 

In  the  present  appeal  there  is  nothing 
which  appears  as  n^ligenoe  per  te,  and  it 
is  undoubtedly  a  question  of  fact  whether 
the  employee  assumed  the  risk,  even  though 
the  evidence  is  undisputed.  It  was  for  the 
jury  to  make  a  proper  deduction  from  the 
testimony. 

Davidson  S.  S.  Co.  ▼.  United  States,  205 
U.  S.  187,  51  L.  ed.  764,  27  Sup.  Ct.  Rep. 
480;  Sioux  City  ft  P.  R.  Co.  v.  Stout,  17 
Wall.  657,  21  L.  ed.  746;  Butler  v.  Frasee, 
211  U.  S.  459,  53  L.  ed.  281,  29  Sup.  Ct. 
Rep.  136. 

The  common-law  rule  of  assumption  of 
risk  has  not  been  modified  or  in  any  way 
changed  by  the  safety  appliance  act  of  the 
state  of  Minnesota,  relative  to  guarding 
dangerous  machinery. 

Anderson  v.  C.  N.  Nelson  Lumber  Co.  67 
Minn.  79,^9  N.  W.  630;  Qlookner  v.  Hard- 
wood Mfg.  Co.  109  Minn.  30,  122  N.  W.  465, 
123  N.  W.  807,  18  Ann.  Cas.  130;  SohuU  v. 
Adair,  09  Minn.  7,  108  N.  W.  8U,  20  Am. 
Neg.  Rep.  598. 

Mr.  Justice  Hughes  delivered  the  opinion 
of  the  court: 

This  action  was  brought  under  the  Feder- 
al employers'  liability  act.  The  plaintiff 
(defendant  in  error)  was  the  station  agent 
at  Dassel,  Minnesota.  It  was  a  part  of  hi3 
duty  to  attend  the  pump  house  some  dis- 
tance from  the  station,  once  or  twice  a  day, 
and  keep  filled  the  water  tank  for  locomo- 
tives. The  water  was  pumped  by  means  of  a 
gasolene  engine,  and  the  pump  and  engine 
were  in  a  small  room.  In  proceeding  to 
start  the  pump  at  the  time  in  question,  the 
•plaintiff's  arm  was  eaught  in  the  elatch  of 
the  engine  and  cut  off.  As  the  supreme 
court  of  the  state  put  it,  the  plaintiff 
claimed  that  'Hie  lost  his  balance,  oitiier 
through  a  slip  upon  the  greasy  floor  or  a 
jerk  by  his  coat  being  drawn  into  the  fly 
wheel  or  shaft,  and  in  striking  out  to  cateh 
«0  Ii.  ed. 


himself  his  hand  and  part  of  the  arm  came 
between  ^e  crank  of  the  shaft  and  top  of 
the  hood  which  partially  *  but  inadequately 
guarded  it."  The  state  court  deemed  the 
evidence  to  be  "very  clear"  that  it  was  prac- 
tioable  to  interpose  safeguards  "so  as  to 
fully  protect  from  danger  those  who  had 
to  pass  by."  The  plaintiff  alleged  negli- 
gence in  his  employer,  in  failing  to  provide 
suitable  [466]  protection;  the  company  de- 
nied negligence  and  insisted  upon  the  de- 
fense of  assumption  6f  risk.  The  trial  court 
held  that  upon  the  evidence  these  questions 
were  for  the  jury,  and  there  was  a  verdict 
for  the  plaintiff.  On  motion,  a  new  trial 
was  ordered  imless  the  plaintiff  should  re- 
mit a  portion  of  the  damages,  and,  this 
being  done,  judgment  was  entered,  which 
was  affirmed  by  the  supreme  court  of  the 
state.    130  Minn.  405,  153  N.  W.  848. 

It  was  conceded  that  when  the  injury  was 
received,  plaintiff  was  engaged  in  work  per- 
taining to  the  defendant's  business  as  a 
common  carrier  in  interstate  commerce,  and 
that  the  Federal  act  applied.  The  court 
recognized  that,  if  assumption  of  risk  by  the 
plaintiff  was  made  out,  it  would  bar  recovery 
under  the  act.  Seaboard  Air  Line  R.  Co. 
V.  Horton,  233  U.  S.  492,  58  L.  ed.  1062, 
L.RJk.l915C,  1,  34  Sup.  Ct.  Rep.  635,  8  N. 
C.  C.  A.  834,  Ann.  Cas.  1915B,  475.  The 
court  charged  the  jury  accordingly,  and 
there  was  no  exception  by  the  defendant  to 
the  charge,  or  request  on  its  part  for  any 
additional  instructions, — the  defendant  con- 
tenting itself  with  its  motion  for  dismis- 
sal or  for  a  direction  of  a  verdict  in  its 
favor.  The  case,  then,  is  one  in  which  there 
is  no  question  as  to  the  interpretation  of 
any  provision  of  the  Federal  act,  or 
as  to  the  definition  of  legal  princi- 
ple in  its  application,  but  simply 
involves  an  appreciation  of  all  the  facts 
and  admissible  inferences  in  the  particular 
case  for  the  purpose  of  determining  whether 
there  were  matters  for  the  consideration  of 
the  jury.  The  state  courts,  trial  and  appel- 
late, held  that  there  were.  Having  regard 
to  the  appropriate  exercise  of  the  jurisdic- 
tion of  this  court,  we  should  not  disturb  the 
decision  upon  a  question  of  this  sort  unless 
error  is  pafpable.  The  present  case  is  not 
of  this  exceptional  character,  and  we  confine 
ourselves  to  an  announ<*ement  of  our  con- 
clusion. Seaboard  Air  Line  R.  Co.  v.  Pad- 
gett, 236  U.  S.  668,  673,  59  L.  ed.  777,  781, 
35  Sup.  Ct.  Rep.  481;  Seaboard  Air  Line 
R.  Co.  V.  Koenneeke,  239  U.  S.  852,  355, 
ante,  824,  327,  36  Sup.  Ct.  Rep.  126. 

Judgment  affirmed. 


4e7 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Temu, 


[467]  E.  B.  JOHNSON,  H.  B.  Johnson,  and 
First  National  Bank  Building  Company, 
Plffg.  in  Err.,  . 

V. 

F.  E.  RIDDLE. 

(See  S.  C.  Reporter's  ed.  467-483.) 

Coarta  —  condnslTeness  of  decisions  of 
Land  Department. 

1.  The  findings  of  the  Indian  inspector 
assigned  to  the  Indian  Territory  respecting 
matters  of  fact  in  a  contest  over  the  pref- 
erential right  to  purchase  a  Chickasaw 
town-site  lot,  affirmed  on  appeal  by  the 
Secretary  of  the  Interior,  are  binding  upon 
the  courts,  in  the  abscDce  of  gross  mistake 
or  fraud. 

[For  otber  csRei,  see  Courts,  I.  e,  6,  in  Digest 
Sup.  Ct.  1008.] 

Pnblic  lands  —  town  sites  —  preferen- 
tial right  to  purchase  —  rights  of  oc- 
cupancy. 

2.  Any  existing  rights  of  occupancy  of 
a  Chicka^a  town-site  lot,  except  such  as 
coincided  with  the  ownei;8hip  of  permanent 
improvements  thereon,  terminatea  upon  the 
taking  effect  of  the  provisions  of  the  Atoka 
Agreement  of  April  23,  1897,  embraced  in 
the  Curtis  act  of  June  28,  1898  (30  Stat. 
at  L.  495,  chap.  517),  §  29,  conferring  a 
preferential  rignt  of  purchase  upon  owners 
of  such  improvements  on  Choctaw  and 
Chickasaw  town-site  lots—or,  at  least,  when 
its  town-site  provisions  were  put  in  opera- 
tion at  Chickasha. 

[For  other  cases,  see  Public  Lands,  I.  d,  in 
Digest  Sap.  Ct.  1908.] 

Estoppel  —  by  tenant  —  landlord's  title. 

3.  A  tenant  is  not  estopped  to  show 

that  his  landlord's  title  has  expired  or  has 

been  terminated  by  operation  of  law. 

[For  other  cases,  see  Estoppel,  III.  e,  in  Di- 
gest Sap.  Ct.   1908.1 

Pnblic  lands  —  charging  patentee  as 
trustee  for  equitable  owner. 

4.  A  title  acquired  by  the  exercise  of 
the  preferential  right  of  purchase  conferred 
by  the  Atoka  Agreement  of  April  23,  1897, 
embraced  in  the  Curtis  act  of  June  28,  1898 
(30  Stat,  at  L.  496,  ^ap.  517),  §  29,  upon 
the  owners  of  permanent  improvements 
upon  Choctaw  and  Chickasaw  town-site  lots, 
will  not  be  impressed  with  a  trust  in  favor 
of  the  lessor  of  such  lots  or  those  claiming 
under  him  because  the  purchaser's  owner- 
ship of  the  improvements  was  derived  from 
the  lessee's  transferee,  who,  by  withholding 
possession  from  the  lessor,  after  refusing  to 
pay  the  rent,  deprived  the  latter  of  any  op- 
portunity to  enter  and  erect  improvements 
himself,  both  lessor  and  lessee  being  tres- 
passers in  disregard  of  Indian  rights. 
[For  other   cases,    see   Pobltc    Lands,    1005- 

1074,  In  Digest  Sup.  Ct.  1908.] 

Judgment  —  ree  Judicata  —  title. 

6.  The  legal  or  equitable  title  to  the 
soil  wks  not  involved  in  an  action  of  unlaw- 

Note. — On  the  ri^ht  of  tenant  to  show 
that  landlord  parted  with  or  lost  his  title 
to  a  third  person  durins  tenancy — see  note 
to  Raines  t.  Hindman,  38  L.Rji.(KJ3.)  803. 
75S 


ful  detainer  which  oonosmed  only  the  right 
of  possession  as  between  landlord  and  ten- 
ant. 

[For  other  cases,  see  Judgment,  IIL  1,  4.  b, 
in  Digest  Sup.  Ct.  1908.] 

[No.  161.] 

Argued  January  12,  1916.    Decided  March 

20,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Oklahoma  to  review  a  judg- 
ment which  affirmed  a  judgment  of  the  Dis- 
trict Court  of  Carter  County,  in  that  State, 
in  favor  of  plaintiff  in  a  suit  over  the  title 
to  a  Chickasaw  town-site  lot.    Affirmed. 

See  same  case  below,  41  Okla.  759,  139 
Pac.  1143. 
The  facts  are  stated  in  the  opinion. 

Mr.  C.  B.  Ames  argued  the  cause,  and, 
with  Mr.  Alger  Melton,  filed  a  brief  for 
plaintiffs  in  error: 

The  decision  of  the  town-site  board,  as 
approved  by  the  Secretary  of  the  Interior, 
was  based  on  an  erroneous  proposition;  to 
wit,  that  the  effect  of  the  Atoka  Agreement 
was  to  terminate  the  relation  of  landlord 
and  tenant. 

Ellis  V.  Fitzpatrick,  3  Ind.  Terr.  656,  64 
S.  W.  567,  55  C.  C.  A.  260,  118  Fed.  430; 
Fraer  v.  Washington,  60  0.  0.  A.  194,  125 
Fed.  280;  Shy  v.  Brockhause,  7  Okla.  35,  54 
Pac  306;  G.  W.  Walker  Trading  Co.  v. 
Grady  Trading  Co.  1  Ind.  Terr.  191,  39  S. 
W.  354;  Kelly  v.  Johnson,  1  Ind.  Terr.  184, 
39  S.  W.  352;  Williams  ▼.  Works,  4  Ind. 
Terr.  587,  76  S.  W.  246. 

Under  the  Atoka  Agreement  aa>  embodied 
in  the  Curtis  act,  which  provides  that  the 
owner  of  the  improvements  shall  have  the 
right  to  buy  one  residence  and  one  business 
lot  at  50  per  cent  of  the  appraised  value,  a 
tenant  who  has  wrongfully  withheld  posses- 
sion of  such  a  lot  from  his  landlord,  thereby 
preventing  his  landlord  from  erecting  im- 
provements thereon,  cannot  acquire  title  to 
the  lot  as  against  the  landlord. 

Rector  v.  Gibbon,  111  U.  S.  276,  28  L.  ed. 
427,  4  Sup.  Ct.  Rep.  605;  Lamb  v.  Daven- 
port, 18  WaU.  307,  21  L.  ed.  759;  Atherton 
V.  Fowler,  96  U.  S.  513,  24  L.  ed.  732; 
Ricks  V.  Reed,  19  Cal.  551;  Goode  y.  Gaines, 
145  U.  S.  141,  36  L.  ed.  654, 12  Sup.  Ct.  Rep. 
839;  Trenouth  ▼.  San  Francisco,  100  U.  S. 
251,  25  L.  ed.  626;  Hagar  v.  Wikoff,  2  Okla. 
580,  39  Pac.  281;  Downmaa  t.  Saunders,  S 
Okla.  227,  41  Pac  104. 

The  tenant,  having  acquired  a  deed  in 
violation  of  the  rights  of  his  landlord,  holds 
the  title  as  trustee  for  his  landlord. 

Rector  ▼.  Gibbon,  111  U.  S.  876,  88  L.  ed. 
427,  4  Sup.  Ct.  Rep.  606;  Baldwin  ▼.  Stark, 
107  U.  a  463,  27  L.  ed.  626,  8  Sup.  Ct.  Rep. 
473;  Wallace  v.  Adams,  74  C.  0.  A.  540, 143 

840  V.  S. 


JOHNSON  T.  BIDDIX 


F«d.  710;  JftinM  v.  GermanU  Iron  Co.  4S 
a  C.  A.  476,  107  F«d.  697;  Trice  t.  Com- 
■tM^,  61  URA.  176,  B7  C.  a  A.  6«,  121 
F«d.  420;  B«rtnm  t.  Cook,  82  Mioh.  918. 

Mr.  Joseph  W.  Bkllejr  argued  the  otiwe, 
and  McMra.  C.  B.  Stiuut,  A.  C.  Cnice, 
ud  W.  A.  Ledb«tter  filed  a  brief  for  d«leud- 

The  floal  deciiion  of  the  Land  Depart- 
ment on  a  queetion  of  fact  between  contest- 
anta  over  public  landa,  and  the  deduction 
drawn  by  aaid  officer*,  and  the  final  con- 
cliuion  reached  upon  tbe  evidence,  are  oon- 
clneive  and  binding  upon  the  court. 

Greenameyer  v.  Coate,  212  U.  S.  434,  03 
L.  ed.  687,  29  Sup.  Ct.  Rep.  345;  Potter  t. 
HaU,  18S  U.  S.  292,  4B  L.  ed.  817,  23  Sup. 
Ct  Bep.  645;  Marquez  v.  Frisbie,  101  U.  S. 
473,  479,  25  L.  ed.  eoO.  g02;  Lee  t.  Johtteon, 
116  U.  S.  48,  29  L.  ed.  670,  6  Sup.  Ct.  Rep. 
249i  Johneon  v.  Towsley,  13  WalL  72,  20 
L.  ed.  48S;  Warren  v.  Van  Brunt,  19  Wall. 
•««,  22  L.  ed.  21B;  United  States  v.  Minor, 
114  U.  S.  233,  29  L.  ed.  110,  6  Sup.  a.  Bep. 
836;  Baldwin  y.  SUrkH,  107  U.  S.  403.  27  L. 
ed.  626,  2  Sup.  Ot.  Rep.  473;  Gardner  t. 
Boneetell,  ISO  U.  S.  302,  364,  46  L.  ad.  G74, 
676,  21  Sup.  Ct.  Rep.  390;  Johnson  v.  Drew, 
171  U.  S.  100,  43  L.  ed.  91,  18  Sup.  Ct.  Rep. 
800. 

The  Supreme  Court,  In  the  review  of 
caaee  from  the  state  courta,  will  follow  the 
^dings  of  (acts  of  those  courts. 

Gardner  t.  Boneetell,  180  U.  S.  362,  46 
X.  ed.  674,  21  Sup.  Ot.  Rep.  399;  Chrisman 
T.  Miller,  197  U.  S.  313,  49  L.  ed.  770,  26 
Sup.  Ct.  Rep.  468;  Chapman  &  D.  Land  Co. 
T.  Bigelow,  206  U.  8.  41,  61  L.  ed.  B63,  27 
Sup.  Ct.  Rep.  679;  Clipper  Min.  Co,  v.  Eli 
Mia.  t  Land  Co.  194  U.  S.  220,  48  L.  ed. 
«44,  24  8np.  Ct.  Rep.  632. 

Neither  defendanta  nor  their  predecessors 
In  interest  had  any  legal  or  equitable  right, 
»•  against  the  Chickasaw  and  Choctaw  Na- 
tioDS  and  the  government,  or  any  claim 
preventing  the  government  from  disposing 
of  the  property  in  any  way  it  might  see 
proper,  since  they  did  not  own  the  improve- 
menta. 

Gontalea  v.  French,  164  U.  S.  347,  41  L. 
ed.  461,  IT  Sup.  Ct.  Rep.  102;  Frisbie  v. 
Whitaey,  8  Wall.  187,  ]0  L.  ed.  B68;  Yose- 
mite  Valley  Case  (Hutchings  t.  Low)  16 
WaU.  77.  21  L.  ed.  82;  Shepley  v.  Cowan, 
81  n.  6.  SSI,  23  L.  ed.  424;  Campbell  v. 
Weyerhaeuser,  88  C.  C.  A.  412,  161  Fed. 
SS2i  Norton  v.  Evans,  27  C  C,  A.  168,  49 
U.  S.  App.  669,  82  Fed.  604;  Burke  t. 
Bontbem  P.  R.  Co.  234  U.  S.  669,  68  L.  ed. 
UST,  34  Snp.  Ct.  Rep,  907. 

A  eonrt  of  chancery  doe*  not  make  titlea 
where  there  are  none,  but  only  will  oompel 
paraoBS  who  obtained  the  legal  title  nn- 
«0  lb  ed.  1 


I  Justly  and  by  fraud  to  reatore  It  to  thoM 
who,  under  the  law,  are  entitled  tiiereto. 

WUlet  r.  Ovoton,  S  Root,  33B,  1  Aa.  Dm. 
1 72. 

In  equi^  aa  wall  aa  b  law  the  plaintiff 
must  recover  on  the  strength  of  his  own 
title,  and  not  on  the  weakness  of  hia  ad- 
venary;  and  a  oomplete  eqni table  title 
must  be  shown  to  entitle  the  plaintiff  to 
recover,  aa  in  law  a  complete  legal  title 
most  be  shown. 

Grand  Gulf  B.  &  Bkg.  Co.  ▼.  Bryan,  8 
SmedM  ft  M.  234;  Bode  r.  Perkins,  139  U. 
S.  628,  SS  L.  ed.  814,  11  Sup.  Ct.  Bep.  677. 

The  general  rule  that  the  tenant  la 
estopped  from  queatloning  and  disputing 
his  landlord's  title  haa  ezec^looa  whkh  an 
aa  well  founded  as  the  rule  Itself. 

Welder  t.  MeComb,  10  Tax.  Civ.  App.  BS, 
30  S.  W.  822)  McKie  v.  Anderaon,  78  Tex. 
207,  14  8.  W.  676;  Wood  v.  Chamber*.  3 
Bicb.  L.  160;  Ounp  v.  Camp,  S  Conn,  291, 
13  Am.  Dee.  40;  Dodge  v.  Fhelan,  2  Tex. 
Civ.  App.  441,  21  S.  W.  309;  Wild  v.  Serpetl, 
10  Qratt.  406;  Ryder  t.  Uansell,  66  Me. 
167;  Bigler  v.  Furman,  68  Barb.  645;  Me- 
Guffie  V.  Carter,  42  Mich.  497,  4  N.  W.  211; 
Jackson  ex  dem.  Rusaell  t.  Rowland,  6 
Wend.  686,  22  Am.  Dec.  667;  Rhyne  «.  Gue- 
vara, 67  Hisa.  139,  6  Sa  736;  Devacht  v. 
Newsam,  3  Ohio,  67;  Harvey  v.  Harvey,  26 
S.  C.  608,  2  S.  E.  3;  BartUjr  *.  McKinney, 
28  Cratt  760;  Willson  v.  Cleaveland,  30 
Cal.  192;TewkaburyT.Magraff,33Cal.237'. 
Page  V.  Kinsman,  43  N.  H.  32S;  lowne  t. 
Butterfield,  97  Mass.  106;  Wolf  v.  Johnson, 
30  Miss.  613;  McAueland  v.  Pundt,  1  Neb. 
211,  93  Am.  Dec.  358;  Martin  v.  Reynold*, 
9  Dana,  328;  Farrie  v.  Houston,  74  Ala. 
162;  Bobertwn  t.  Biddell,  32  Fla.  304,  13 
So.  358;  Winn  t.  Strickland,  34  Fla.  610,  16 
So.  606;  Tilghman  v.  Little,  13  111.  239;  St. 
John  V.  Qultiow,  72  nl.  334;  Kinney  t.  Doe, 
8  Blaekf.  350;  Casey  v.  Gregory,  13  B.  Mon. 
606,  66  Am.  Dec.  581;  Giles  v.  Ebiwortb,  10 
Md.  333;  Robinson  v.  Troup  Min.  Co.  66 
Mo.  App.  662;  Russell  v.  Allard,  18  N.  H. 
222;  Den  ex  dem.  Howell  v.  Ashmore,  22 
N.  J.  L.  261;  Horner  v.  Den,  26  N.  J.  L.  106; 
Lawrence  v.  Miller,  1  Sandf.  616;  HULon  v. 
Bender,  4  Thomp.  k  C.  270;  Franklin  v. 
Hurlbert,  1  Tex.  App.  Gv.  Cae.  (White  ft 
W.)  466,  18  Am.  ft  Eng.  Enc  Law,  2d  ed. 
pp.  421,  422;  Peyton  v.  Stith,  6  Pet.  486,  8 
L.  ed.  200;  Smith  v.  Mundy,  18  Ala.  182, 
62  Am.  Dec.  221;  Bishop  *.  Blair,  36  Ala. 
80;  Hugbee  v.  Watt,  28  Ark.  163;  Arnold 
V.  Woodward,  14  Colo.  164,  23  Fac  444; 
Wellborn  t.  Hood,  68  Oa.  824;  Wykoff  «. 
MiUer,  48  I^  Ann.  476,  19  So.  478;  Heath 
T.  WiUiams,  25  Me.  209,  48  Am.  Dec  266; 
MoCreary  t.  McCreary,  90  Mich.  478,  61  N. 
W.  646;  Crockett  v.  Althouse,  36  Mo. -App. 
404;  Hattia  t.  Robertson,  1  Nab.  1;  Utioa. 
,8  t** 


469,  470 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Teuc^ 


Bank  v.  Mersereau,  3  Barb.  Ch.  528,  49  Am.  i 
Dec.  189;  Benton  v.  Benton,  95  N.  C.  559; 
Henning  v.  Warner,  109  N.  C.  406,  14  S.  E. 
317;  Doe  ex  dem.  Smart  v.  Smith,  13  N.  C. 
(2  Dev.  L.)  258;  Boyer  v.  Smith,  3  Watts, 
449;  Juneman  t.  Franklin,  67  Tex.  4ll,  3 
S.  W.  562;  Hillock  y.  Sutton,  2  Ont.  Rep. 
648;  Adams  v.  Binkley,  4  Colo.  247;  Clarke 
T.  Clarke,  51  Ala.  498;  Otis  ▼.  McMillan, 
70  Ala.  46;  Caldwell  v.  Smith,  77  Ala.  157; 
Randolph  v.  Carlton,  8  Ala.  606;  Pope  v. 
Harkins,  16  Ala.  321;  McDcvitt  v.  Sullivan, 
8  Cal.  592;  Wheelock  v.  Warschauer,  21 
Cal.  309;  Rodgers  v.  Palmer, '33  Conn.  156; 
Wells  Y.  Mason,  5  111.  84;  Stout  ▼.  Merrill, 
35  Iowa,  47;  Swann  ▼.  Wilson,  1  A.  K. 
Marsh.  99;  Gregory  v.  Crab,  2  B.  Mon.  234; 
Logan  V.  Steele,  7  T.  B.  Mon.  104;  Elms  y. 
Randall,  2  Dana,  100;  Presstman  v.  Sill- 
jacks,  52  Md.  647;  Lamson  v.  Clarkson,  113 
Mass.  348,  18  Am.  Rep.  498;  Emmes  v.  Fee- 
ley,  132  Mass.  346;  Hilbourn  t.  Fogg,  99 
Mass.  11 ;  Indian  Land  &  Trust  Co.  t.  Clem- 
ent, 22  Okla.  40, 109  Pac.  1089;  Dale  v.  Par- 
ker, 143  Mo.  App.  492, 128  S.  W.  510;  Qrun- 
din  y.  Carter,  99  Mass.  15;  Miles  y.  Rans- 
ford,  1  Mich.  338,  51  Am.  Dec.  95;  Jones  y. 
Madison  County,  72  Miss.  777,  18  So.  87; 
Barclay  v.  Pickles,  38  Mo.  143;  Stagg  v. 
Eureka  Tanning  &,  Curring  Co.  56  Mo.  317; 
State  use  of  Meier  y.  Thiemann,  15  Mo. 
App.  307;  Hoag  v.  Hoag,  35  N.  Y.  469; 
Ryerss  y.  Farwell,  9  Barb.  615;  Lane  y. 
Young,  66  Hun,  563,  21  N.  Y.  Supp.  838; 
Van  Etten  y.  Van  Etten,  69  Hun,  499,  23 
N.  Y.  Supp.  711;  Lodge  y.  Martin,  31  App. 
Diy.  13,  52  N.  Y.  Supp.  385;  Boyd  y.  Sam- 
etE,  17  Misc.  728,  40  N.  Y.  Supp.  1070;  Lan- 
eashire  y.  Mason,  75  N.  C.  455;  West  Shore 
Mills  Co.  y.  Edwards,  24  Or.  475,  38  Pac. 
987;  Newell  y.  Gibbs,  1  Watts  &  S.  496; 
Sparks  y.  Walton,  4  Phila.  72;  HiU  y.  Mil- 
ler, 5  Serg.  &  R.  355;  Smith  y.  Crosland, 
106  Pa.  413;  Bowser  y.  Bowser,  8  Humph. 
28;  Orleans  County  Granunar  School  v.  Par- 
ker, 25  Vt.  696;  Pierce  y.  Brown,  24  Vt. 
165;  Bright  y.  Boyd,  1  Story,  478,  Fed.  Cas. 
Kg.  1,875;  Hodgen  v.  Guttery,  58  HI.  431; 
Green  y.  Dietrich,  114  HI.  636,  3  N.  E.  800; 
Carson  y.  Crigler,  9  111.  App.  83;  Hodges 
T.  Shields,  18  B.  Mon.  831;  Kelley  y.  Kelley, 
28  Me.  193;  Walker  y.  Harrison,  75  Miss. 
666,  23  So.  392;  Pickett  y.  Ferguson,  86 
Tenn.  642,  8  S.  W.  386;  Lang  y.  Carothers, 
«1  Tex.  Ciy.  App.  118,  51  S.  W.  271. 

Can  the  defendants  now,  in  a  court  of 
equity,  be  heard  to  complain  of  not  secur- 
ing their  asserted  rights  under  the  law  be- 
fore the  proper  authorities  authorized  to 
hear  and  determine  their  claim  T 

Bassett  y.  Mitchell,  3  Okla.  177,  41  Pac. 
601;  Roberts  y.  Hughes,  81  HI.  130,*25  Am. 
Rep.  270;  Marshall  y.  Means,  12  Ga.  61,  56 
Am.  Dec.  444;  Rose  y.  Singleton^  1  DeL  Ch. 
754 


149,  12  Am.  Dec  86;  Magniae  y.  Thomson^ 
15  How.  281,  304,  14  L.  ed.  696,  705;  Roea 
y.  Stewart,  22  Okla.  611,  106  Pac.  870,  227 
U.  S.  532,  57  L.  ed.  627,  33  Sup.  Ot.  Rep. 
345. 

Mr.  Justice  Pitney  deliyered  the  opin- 
ion of  the  court: 

This  was  an  action  of  ejectment,  com- 
menced before  the  admission  of  Oklahoma  as- 
a  state,  in  the  United  States  court  for  the 
southern  district  of  the  Indian  Territory, 
and  brought  to  a  conclusion  in  the  state 
courts.  There  have  been  many  changes  of 
interest  pendente  lite,  and  corresponding 
changes  of  parties.  The  original  plaintiffa 
were  Riddle,  now  defendant  in  error,  and 
one  Cook,  whose  interest  Riddle  has  since 
acquired.  The  interests  of  the  original  de- 
fendants have  been  acquired  by  plaintiffs  in 
error  through  mesne  conveyances  that  will 
be  stated  below.  The  subject  of  the  action 
is  a  town  lot  in  the  town  of  Chickasha,  in 
the  Chickasaw  district  of  the  Choctaw  Na- 
tion, to  which  plaintiff  claimed  title  by  pur- 
chase under  the  town-site  provisions  of  the 
Atoka  Agreement  with  the  Choctaw  and 
Chickasaw  tribes,  found  in  the  act  of*  Con- 
gress known  as  the  Curtis  act  (June  28, 
1898,  chap.  517,  30  Stat,  at  L.  495,  505, 
508),  followed  by  a  patent  executed,  after 
the  commencement  of  the  action,  in  accord- 
ance with  the  supplemental  agreement  with 
the  same  tribes  (act  of  July  1,  1902,  chap. 
1362,  §  51,  32  Stat,  at  L.  641,  653),  and 
[470]  set  up  in  a  supplemental  complaint. 
The  defendants  admitted  the  legal  title  to 
be  in  Riddle,  but  by  cross  complaint  sought 
to  have  him  declared  a  trustee  for  their  ben- 
efit and  decreed  to  convey  the  title  to  them. 
A  judgment  refusing  to  declare  such  a  trust, 
and  awarding  the  lot  to  Riddle,  was  affirmed 
by  the  supreme  court  of  Oklahoma  (41  Okla. 
759,  139  Pac.  1143),  and  the  case  is  brought 
here,  under  §  237,  Judicial  Ck)de  [36  Stat, 
at  L.  1156,  chap.  231,  Comp.  Stat.  1913,  § 
1214],  upon  the  ground  that  the  decision 
was  against  rights  set  up  by  plaintiffs  in 
error  under  the  provisions  of  the  Agree- 
ment. 

The  facts  are  as  follows:  Some  years 
prior  to  the  making  of  the  Agreement,  one 
Fitzpatrick,  a  white  man  not  entitled  to 
citizenship  in  any  Indian  tribe,  made  a 
lease  of  the  lot  in  controversy,  tt^en  yacant 
and  unimproved,  to  one  Bamhart,  who  went 
into  possession  and  erected  a  substantial 
house  and  other  improvements,  which  were 
to  belong  to  him,  subject  to  the  payment  of 
a  ground  rent  to  Fitzpatrick.  There  is  noth- 
ing to  show  what  right  Fitzpatrick  claimed, 
or  that  in  fact  he  had  any  right  to  seise 
upon  vacant  tribal  lands  and  contract  con- 
cerning them  as  he  did.    In  the  year  1897» 

S40  V.  S. 


1915. 


JOHNSON  V.  RIDDLE. 


470-473 


Bamhart  sold  the  improTements  and  trans- 
ferred the  possession  of  the  lot  to  one  Ellis, 
who  entered  into  possession  and  made  furth- 
er improvements.  About  April  1,  1808,  EU 
lis  refused  to  pay  rent,  and  on  July  7,  in 
the  same  year,  Fitzpatrick  brought  a  suit 
for  unlawful  detainer  against  him  in  the 
United  States  court,  alleging,  in  an  amend- 
ed complaint  filed  in  February,  1890,  that 
he  desired  possession  for  the  purpose  of  be- 
ing able  to  place  upon  the  lot  such  improve- 
ments as  would  protect  his  right  to  the 
land  under  the  provisions  of  the  Agreement. 
Fitzpatrick  prevailed  in  the  United  States 
court,  and,  on  appeal,  in  the  court  of  ap- 
peals  for  the  Indian  Territory  (Ellis  v. 
Fitzpatrick,  3  Ind.  Terr.  656,  64  S.  W.  567), 
and  also  in  the  circuit  court  of  appeals  for 
the  eighth  circuit,  whose  decision  was  ren- 
dered October  27,  1002  (55  CCA. 260,  118 
Fed.  430).  [471]  Meanwhile  Ellis  retained 
possession  by  means  of  a  supersedeas  bond. 

In  February,  1002,  the  town-site  commis- 
sion for  the  Chickasaw  Nation,  organized 
pursuant  to  the  provisions  of  the  Atoka 
Agreement,  visited  Chickasha  for  the  pur- 
pose of  i^praising  town  lots  and  awarding 
them  to  person*  having  the  preferential 
right  to  purchase  under  the  terms  of  the 
Agreement  Ellis  having  conveyed  his  rights 
to  Riddle  and  Cook,  the  lot  was  scheduled 
to  them,  and  on  June  12,  1002,  they  were 
notified  that  they  had  the  right  to  purchase 
it.  A  week  later  they  availed  themselves  of 
this  right  by  paying  to  the  United  States 
Indian  agent  the  proper  percentage  of  the 
appraised  value  to  make  up  the  full  pur- 
chase price  of  the  lot,  and  took  from  him 
a  proper  receipt. 

Pending  the  unlawful  detainer  suit,  Fitz- 
patrick conveyed  whatever  interest  he  had 
in  the  lot  to  a  Mrs.  Cross,  and  she  conveyed 
an  undivided  half  interest  to  one  Bourland. 
In  January,  1003,  after  the  decision  of  the 
circuit  oourt  of  appeals,  Bourland  and  Cross 
obtained  possession  of  the  lot  with  the  im- 
provements,  and  in  the  following  month  the 
present  action  of  ejectment  was  commenced 
by  Riddle  and  Cook  against  Fitzpatrick  and 
the  persons  in  possession.  Thereafter  Bour- 
land and  Cross  conveyed  their  interest  to 
E.  B.  and  H.  B.  Johnson,  the  present  plain- 
tiffs  in  error,  and  they  were  substituted  as 
defendants.  Riddle  bought  the  interest  of 
Cook,  and  thus  became  the  sole  plaintiff. 
Pending  the  action,  a  contest  was  instituted, 
either  by  Bourland  and  Cross  or  by  the 
Johnsons,  against  Riddle  and  Cook,  ooncem- 
ing  the  award  and  scheduling  of  the  lot  to 
the  latter.  The  town-site  commission  hav- 
ing been  abolished  by  the  Secretary  of  the 
Interior  pursuant  to  act  of  March  3,  1005, 
ehap.  1470,  38  Stat,  at  L.  1048,  1050,  the 
•0  Ii.  ed. 


contest  was  heard  before  the  United  States 
Indian  inspector  assigned  to  the  Indian  Ter- 
ritory,  upon  whom  this  duty  was  imposed 
by  regulations  approved  [472]  by  the  Sec- 
rotary.  Rep.  Ind.  Inspec.  1005,  pp.  5,  22,  23; 
House  Doc.  No.  5,  59th  Cong.  Ist  Sess.  voL 
10,  pp.  705,  722,  723.  The  inspector  made 
fuH  findings  of  fact,  and  in  an  elaborate 
opinion  decided  in  favor  of  contestees.  Upon 
appeal  this  decision  was  affirmed  by  the 
Ciommissioner  of  Indian  Affairs,  and  upon 
appeal  to  the  Secretary  of  the  Interior  it 
was  iigain  affirmed.  These  decisions  pro- 
ceeded upon  findings  to  the  effect  that,  at  the 
time  of  the  ratification  of  the  Atoka  Agree- 
ment and  at  the  time  the  town  site  of 
Chickasha  was  laid  out  by  the  town-site 
commission,  and  when  the  plats  prepared  by 
the  commission  were  finally  approved  by  the 
Secretary  of  the  IntericNr,  Ellis  was  the 
owner  of  permanent,  substantial,  and  valu- 
able improvements,  other  than  fences,  til- 
lage, and  temporary  houses,  on  said  lot; 
that  none  of  these  improvements  was  in  any 
way  in  issue  in  the  unlawful  detainer  suit, 
and  Ellis's  ownership  of  them  was  not  de- 
nied or  disputed,  but,  on  the  contrary,  was 
admitted  by  Fitzpatrick  in  his  pleadings, 
and  they  were  in  no  way  adjudicated  upon 
in  that  suit;  that  Riddle  and  Cook  after- 
wards purchased  the  improvements  from 
Ellis,  and  having  received  notice  from  the 
townsite  commission,  as  already  mentioned, 
of  their  right  to  purchase  the  lot  under  the 
provisions  of  the  Atoka  Agreement,  they 
forwarded  to  the  United  States  Indian  agent 
the  proper  percentage  of  the  appraisement 
to  make  up  the  full  purchase  price  of  the 
lot,  and  received  his  receipt  for  the  same. 
After  the  final  determination  of  the  contest 
before  the  Department  of  the  Interior,  a 
patent  was  issued  to  Riddle  and  his  associ- 
ate, dated  in  May,  1007. 

.  The  Atoka  Agreement  between  the  United 
States  and  the  Choctaw  and  Chickasaw 
tribes,  negotiated  April  23,  1807,  amended 
by  S  20  of  the  Curtis  act  (June  28,  1808, 
chap.  517,  30  Stat,  at  L.  405,  505),  and 
thereby  submitted  for  ratification  by  the 
members  of  the  tribes,  was  ratified  by  a 
majority  of  votes  at  a  special  election  held 
on  August  24,  1808,  [473]  the  result  of 
which  was  ascertained  and  proclaimed  on 
August  30th  by  a  board  of  commissioners 
for  that  purpose,  designated  by  the  act,  and 
the  agreement  thus  became  effective.  (See 
6th  Ann.  Rep.  Dawes  Comm.,  September  1, 
1800,  House  Doc.  No.  5,  56th  Cong.  1st  Sess. 
vol.  10,  p.  0;  Homer's  Const,  and  Laws  of 

I  Chickasaw  Nation,  1800,  p.  420.)     It  con- 
tains provisions  respecting  town  sites   (30 

>SUt.  at  L.  508,  ehap.  517),  of  wh^ 


47»-476 


SUPREME  COURT  OF  THE  UNITED  STATEa 


Oor.  TwMM,, 


pcrtineiit   portions    are    set   forth    in   the 
margin.! 

Regulatory  provisions,  embodied  in  an 
act  of  May  31,  1900  (chap.  598,  31  SUt.  at< 
L.  221,  237,  238),  [474]  were  assented  to 
by  the  Choctaws  and  Chickasaws  in  the 
supplemental  agreement  (act  of  July  1, 
1902,  chap.  1362,  32  Stat,  at  L.  641,  652), 
and  other  regulations  were  thereby  added. 
Authority  to  appraise  town  lots,  improved 
or  unimproved,  to  ascertain  the  ownership 
and  value  of  the  improvements,  and  to  dis- 
pose of  the  lots  in  conformity  to  the  provi- 1 
sions  of  the  Agreement,  was  thereby  con- 
ferred upon  the  town-site  oonmiission,  sub- 
ject to  the  supervision  of  the  Secretary  of 
the  Interior.  (See  Ross  v.  Stewart,  227  U. 
8.  630,  534,  57  L.  ed.  626,  628,  33  Sup.  Ct. 
Rep.  345.)  Their  unfinished  duties  were 
devolved  upon  the  Secretary  by  the  act  of 
1905,  under  whose  authority  the  Indian 
inspector  acted,  as  already  shown.  The 
supreme  court  of  Oklahoma  therefore  was 
correct  in  holding  that  the  findings  of  the 
inspector  respecting  matters  of  fact,  af- 
firmed on  final  appeal  by  the  Secretary,  were 
binding  upon  the  courts,  in  the  absence  of 
gross  mistake  or  fraud  (neither  of  which  is 
here  present),  and  that  the  judicial  inquiry 
is  limited  to  determining  whether  there  was 
clear  error  of  law  that  resulted  in  award- 
ing the  preferential  right  of  purchase,  and 
ultimately  issuing  the  patent,  to  the  wrong 
party.  Johnson  v.  Towsley,  13  Wall.  72,  86, 
20  L.  ed.  485,  487 ;  Shepley  v.  Cowan,  91  U. 
S.  330,  340,  23  L.  ed.  424*  427 ;  Marquez  v. 
Frisbie,  101  U.  S.  473,  476,  25  L.  ed.  800, 
801 ;  Gonzales  v.  French,  164  U.  S.  338,  342, 
41  L.  ed.  458,  460,  17  Sup.  Ct.  Rep.  102; 
Ross  V.  Day,  232  U.  S.  110,  116,  58  L.  ed. 
528,  529,  34  Sup.  Ct.  Rep.  233. 

Since  the  findings  are  to  the  effect  that  | 


the  improvements  upon  the  lot  wera  owned 
by  Ellis,  and  by  defendant  in  error  through 
a  purchase  from  him,  the  oontentloiia  of  the 
plaintiffs  in  error  are  reduced  to  these: 
that  the  decision  of  the  Indian  inspector, 
approved  by  the  Secretary  of  the  Interior, 
to  the  effect  that  the  Atoka  Agreement 
terminated  the  relation  of  landlord  and 
tenant,  was  based  upon  an  erroneous  con- 
struction of  the  Agreement,  and  ignored  the 
equities  of  the  landlord  as  against  the 
tenant;  that  under  a  correct  construction 
of  the  provisions  permitting  the  owner  of 
the  improvements  to  buy  a  town  lot  [475] 
at  a  fraction  of  the  appraised  value,  a 
tenant  who  wrongfully  withheld  possession 
of  such  a  lot  from  his  landlord,  thereby 
preventing  him  from  erecting  improvements 
thereon,  could  not  acquire  title  to  the  lot 
as  against  the  landlord;  and  that  a  tenant 
who,  under  the  provisions  of  the  Agreement, 
but  in  violation  of  the  rights  of  his  landlord, 
has  acquired  a  deed  for  such  a  lot,  holds  the 
title  as  trustee  for  the  landlord. 

The  Atoka  Agreement  of  course  is  to  be 
read  in  the  light  of  the  conditions  out  of 
which  it  arose.  The  Choctaw  Indians  ac- 
quired the  territory  in  question  under  a 
treaty  with  the  United  States  made  at 
Dancing  Rabbit  Creek  in  the  year  1830  (7 
Stat,  at  L.  333).  In  accordance  with  the 
provisions  of  the  treaty,  and  pursuant  to 
authority  conferred  by  act  of  May  28,  1830 
(chap.  148,  §  3,  4  Stat,  at  L.  412),  a  patent 
was  issued  by  the  President  of  the  United 
States,  March  23,  1842,  granting  the  land 
to  the  Choctaw  Nation,  "in  fee  simple  to 
them  and  their  descendants,  to  inure  to 
them,  while  they  shall  exist  as  a  nation  and 
live  on  it,  liable  to  no  transfer  or  aliena- 
tion, except  to  the  United  States,  or  with 
their  consent."    ( Durant's  Const,  k  Laws  of 


f'Town  Sites.  It  is  further  agreed  that 
there  shall  be  appointed  a  commission  for 
each  of  the  two  nations.  .  .  .  Each  of 
said  commissions  shall  lay  out  town  sites, 
to  be  restricted  as  far  as  possible  to  their 

S resent  limits,  where  towns  are  now  located 
1  the  nation  for  which  said  commission  is 
appointed.  .  .  .  When  said  towns  are  so 
laid  out,  each  lot  on  which  permanent,  sub- 
stantial and  valuable  improvements,  other 
than  fences,  tillage,  and  temporarv  houses, 
have  been  made,  shall  be  valued  by  the 
commission  provided  for  the  nation  in  which 
the  town  is  located  at  the  price  a  fee-simple 
title  to  the  same  would  brmg  in  the  market 
at  the  time  the  valuation  is  made,  but  not 
to  include  in  such  value  the  improvements 
thereon.  The  owner  of  the  improvements  on 
each  lot  shall  have  the  riffht  to  buy  one 
residence  and  one  business  lot  at  fiftv  per 
centum  of  the  appraised  value  of  such  im- 
proved property,  and  the  remainder  of  such 
unproved  property  at  sixty-two  and  one  half 
per  centum  of  the  said  market'  value  within 


sixty  days  from  date  of  notice  served  on 
him  that  such  lot  is  for  sale,  and  if  he  pur- 
chases the  same  he  shall,  within  ten  days 
from  his  purchase,  pay  into  the  treasury 
of  the  United  States  one  fourth  of  the  pur- 
chase price,  and  the  balance  in  three  equal 
annual  instalments,  and  when  the  entire 
sum  is  paid  shall  be  entitled  to  a  patent  for 
the  same.  ...  If  such  owner  of  the 
improvements  on  any  lot  fails  within  sixty 
days  to  purchase  and  make  the  first  pay- 
ment on  same,  such  lot,  with  the  improve- 
ments thereon,  shall  be  sold  at  nublio 
auction  to  the  highest  bidder,  under  tae  di- 
rection of  the  aforesaid  commission,  and  the 
purchaser  at  such  sale  shall  pa7  to  the  own- 
er of  the  improvements  the  price  for  which 
said  lot  shall  be  sold,  less  dztv-two  and 
one  half  per  cent  of  said  appraised  value 
of  the  lot  and  shall  pay  the  siztv-two  and 
one  half  per  cent  of  said  appraiMd  value 
into  the  United  States  Treasury.  .  .  . 
All  lots  not  so  appraised  shall  be  sold  from 
time  to  time  at  public  auction.    .    .    ." 

140  U.  8. 


1915. 


JOHNSON  ▼.  RIDDLE. 


475-478 


ChoeUw  Nation,  1894,  p.  31.)  In  1837  tbe 
OhoetawB  entered  into  a  treaty  with  the 
Ghiekmeawe,  by  which  the  latter  were  privil- 
edged  to  form  a  district  within  the  limits 
of  the  Ohoctaw  country,  ''to  be  held  on  the 
same  terms  that  the  Choctaws  now  hold  it, 
except  the  right  of  disposing  of  it,  which 
is  held  in  common  with  the  Choctaws  and 
Cliickasaws."  This  received  the  approval 
of  the  President  and  Senate  of  the  United 
States.  11  SUt.  at  L.  573,  675.  In  the 
year  1855  a  new  treaty  was  made  between 
the  United  States  and  these  tribes  (11  Stat, 
at  L.  611),  by  which  the  boundaries  of  tlieir 
eonntry  were  defined  and  the  United  States 
guaranteed  the  lands  embraced  within  the 
specified  limits  "to  the  members  of  the 
Choctaw  and  Chickasaw  tribes,  their  heirs 
and  successors,  to  be  held  in  common;  so 
that  [476]  each  and  every  member  of 
either  tribe  shall  have  an  equal,  undivided 
interest  in  the  whole;  Provided,  however,  no 
part  thereof  shall  ever  be  sold  without  the 
consent  of  both  tribes;  and  that  said  land 
shall  revert  to  the  United  States  if  said 
Indians  and  their  heirs  become  extinct,  or 
abandon  the  same."  The  westerly  part  of 
the  country  was  established  as  a  district 
/or  the  Chickasaws,  the  easterly  part  for 
the  Choctaws.'  After  the  Civil  War,  and 
in  the  year  1866,  a  new  treaty  was  made,  by 
the  11th  article  of  which  it  was  recited  that 
the  land  described  in  the  treaty  of  1855  "is 
now  held  by  the  members  of  said  nations  in 
common,  under  the  provisions  of  the  said 
treaty."  14  Stat,  at  L.  769,  774.  A  plan 
for  a  survey,  division,  and  allotment  of  the 
land  was  proposed  by  the  same  article,  but 
this  came  to  naught  because  of  the  non- 
assent  of  the  Choctaw  people.  Woodward 
T.  DeGraffenried,  238  U.  S.  284,  294,  59  L. 
ed.  1810,  1318,  35  Sup.  Ct.  Rep.  764.  Thus 
matters  remained  until,  in  the  course  of 
time,  the  infiux  of  white  people  into  this 
and  other  parts  of  the  Indian  Territory 
created  a  new  situation  of  great  complexity, 
calling  for  a  readjustment  of  the  affairs  of 
the  Five  Civilised  Tribes.  In  1893  the 
Dawes  Commission  was  appointed,  under 
authority  of  an  act  of  Congress  (chap.  209, 
I  16,  27  Stat,  at  L.  645),  to  enter  into 
negotiations  with  those  tribes  for  the  pur- 
pose of  extinguishing  the  tribal  titles  to 
lands.  The  annual  reports  of  the  Commis- 
sion, a  reference  list  of  which  is  printed  in 
238  U.  S.  296,  give  a  complete  and  instruc- 
tive account  of  its  labors.  The  first  of  these 
reports,  dated  November  20,  1894,  shows 
that  among  the  original  propositions  sub- 
mitted to  the  several  tribes  as  a  basis  of 
negotiations  it  was  -suggested  that  town 
sites  should  be  the  siibject  of  special  agree- 
ments, such  as  would  secure  to  the  Indians 
and  to  investors  "$l  Just  protection  and  ad* 
•9  Ii.  ed. 


Justment  of  their  respective  rights."  In  ex- 
planation it  was  stated:  "There  are  towns 
in  the  Territory  ranging  in  population  from 
a  few  people  to  5,000  inhabitants.  Nearly 
all  of  [477]  them  are  noncitizens.  •  .  . 
Biany  large  and  valuable  stone,  brick,  and 
wooden  buildings  have  been  erected  by  non- 
citizens  of  these  towns,  and  the  lots  on 
which  they  stand  are  worth  many  thousands 
of  dollars.  These  town  sites  are  not  sus- 
ceptible of  division*  among  the  Indians,  and 
the  only  practicable  method  of  adjusting  the 
equities  between  the  tribes  who  own  the 
sites  and  those  who  constructed  the  build- 
ings is  to  appraise  the  lots  without  the  im- 
provements and  the  improvements  without 
the  lots  and  allow  the  owners  of  the  im- 
provements to  purchase  the  lots  at  the  ap- 
praised value,  or  to  sell  lot  and  improve- 
ments, and  divide  the  money  according  to 
the  appraisement."  House  £x.  Doc.  pt.  5, 
53d  C<mg.  3d  Sess.  vol.  14,  pp.  Ixii.,  Ixv. 

The  first  agreement  to  be  negotiated  by 
the  Commission  was  with  the  Choctaws  un- 
der date  December  18,  1800,  but  the  Chicka- 
saws refused  to  concur  in  this,  and  another 
was  negotiated  at  Atoka,  April  23,  1897, 
with  both  tribes.  In  its  original  form  it  is 
appended  to  the  Fourth  Report  of  the  Com- 
mission, dated  October  11,  1897  (House  Doc. 
No.  5,  55th  Cong.  2d  Sess.  vol.  12,  pp.  cxvii., 
cxxii.).  It  provided  that  a  town-site  com- 
mission should  be  appointed  for  each  of  the 
two  nations;  that  each  existing  town  site 
should  be  laid  out  and  platted,  and  that 
"each  lot  on  which  permanent,  substantial, 
and  valuable  improvements,  other  than 
fences,  tillage,  and  temporary  houses,  have 
been  made,  shall  be  valued  by  the  Commis- 
sion ...  at  the  price  a  fee-simple  title 
to  the  same  would  bring  in  the  market  at 
the  time  the  valuation  is  made,  but  not  to 
include  in.  such  value  the  improvements 
thereon.  The  owner  of  the  improvements 
on  each  lot  shall  have  the  right  to  buy  the 
same  at  02}  per  cent  of  the  said  market 
value,  within  sixty  days  from  date  of  notice 
served  on  him  that  such  lot  is  for  sale."  It 
further  provided  that  if  the  owner  of  the 
improvements  should  fail  to  purchase,  the 
lot  with  improvements  should  be  sold  at 
auction,  the  [478]  purchaser  to  pay  the 
price  to  the  owner  of  the  improvements,  less 
62i  per  cent  of  the  appraised  value  of  the 
lot,  which  was  to  be  paid  into  the  Unit* 
ed  States  Treasury  for  the  benefit  of  the 
Indians.  This  agreement,  with  some  amend- 
ments, was  ratified  by  Congress  in  S  29 
of  the  Curtis  act,  and  afterwards  rati- 
fied  by  the  voters  of  the  two  tribes,  as. 
already  mentioned.  The  provision  as  to* 
purchase  of  town  lots  was  amended  only 
by  giring  to  the  owner  of  .the  improve- 
ments the  right  to  buy  one  residelice  and 


478-480 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Cot.  TkBM, 


one  business  lot  at  50  per  centum  and  the 
remainder  of  such  improved  property  at  62^ 
per  centum,  of  the  appraised  market  value. 

The  same  act  contained,  in  its  16th  sec- 
tion (30  Stat,  at  L.  500,  chap.  517)  a  pro- 
vision for  the  appointment  of  a  town-site 
commission  for  each  of  the  Chickasaw,  Choc- 
taw, Creek,  and  Cherokee  tribes;  allowing 
"the  owner  of  the  improvements  upon  any 
town  lot,  other  than  fencing,  tillage,  or  tem- 
porary buildings,"  to  deposit  in  the  United 
States  Treasury  one  half  of  the  appraised 
value  •of  the  lot,  excluding  improvementa, 
as  a  tender  to  the  tribe  of  the  purchase  mon- 
ey for  the  lot;  and  permitting  improved  lots 
to  be  sold  at  auction  if  the  owner  of  the 
improvements  thereon  failed  to  deposit  the 
purchase-money  within  a  limited  time,  in 
which  case  the  purchaser  at  auction  might, 
by  appropriate  proceedings  in  the  United 
States  court,  require  the  owner  of  the  im- 
provements to  either  accept  their  appraised 
value  or  remove  the  improvements  from  the 
lot.  The  same  section  provided  for  the  sale 
of  unimproved  lots,  the  purchase-money  to 
be  deposited  with  like  eflTect  as  in  the  case 
of  improved  lots;  and  authorized  the  tribes 
to  make  deeds  to  the  purchasers  conveying 
the  title  to  suph  town  lots,  whereupon  the 
purchase-money  was  to  become  the  property 
of  the  tribe.  These  provisions  would  ap- 
pear to  have  been  superseded,  as  to  the 
Choctaw  and  Chickasaw  tribes,  by  their  ac- 
ceptance [470]  of  the  Atoka  Agreement, 
and  are  mentioned  only  to  show  that  in  § 
15,  as  in  the  Agreement,  it  was  the  owner 
of  the  improvements,  and  he  alone,  who  was 
recognized  as  entitled  to  be  considered  in 
the  sale  of  the  town  lots. 

It  is  not  necessary  to  say  that  the  Agree- 
ment, when  thus  ratified  by  Congress  and 
by  the  tribes,  became  the  law  of  the  land, 
and  superseded  all  customs,  if  such  there 
were,  that  had  sanctioned  the  making  of 
leases  to  noncitizens.  By  its  terms  towns, 
so  far  as  they  had  been  established  within 
the  domain  of  the  tribes,  were  recognized, 
and  provision  was  made  for  platting  them, 
i^nd  for  selling  the  lots,  both  improved  and 
unimproved,  the  proceeds  to  become  the 
property  of  the  tribes.  It  was  recognized 
that  the  money  expended  by  white  men  in 
constructing  the  buildings  and  other  perma- 
noit  improvements  had  increased  the  value 
not  only  of  the  improved  lots,  but  of  all 
lands  within  the  town;  and  hence  a  prefer- 
ential right  of  purchase  was  conferred  upon 
"the  owner  of  the  improvements  on  each  lot." 
But  there  is  nothing  in  the  history  of  the 
matter,  any  more  than  in  the  language 
employed,  to  give  the  least  countenance  to 
the  suggestion  that  prior  rights  of  occu- 
pancy were  intended  to  be  recognized  in 
thiB  Agreement.  Ownership  of  improve- 
758 


ments  actually  upon  the  soil  was  adopted 
as  the  sole  foundation  of  the  newly  oon- 
ferred  right  to  acquire  title  to  the  soil  it- 
self. And  these  improvementa  must  be 
''permanent,  substantial,  and  valuable  im- 
provements, other  than  fences,  tillage,  and 
temporary  houses."  The  exclusion  of  these 
latter,  indicative  merely  of  occupancy,  is 
highly  significant. 

The  provisions  of  the  Agreement  respect- 
ing the  sale  of  town  lots  could  not  be  car- 
ried into  effect  without  terminating  exist- 
ing rights  of  occupancy,  if  such  there  were, 
saving  as  these  coincided  with  the  owner- 
ship of  permanent  improvements.  Henoe>» 
if  Fitzpatrick  had  any  right  to  the  soil,  it 
came  to  an  end  either  when  the  Agreement 
took  effect  in  August,  1898,  or,  at  latest, 
when  its  town-site  provisions  [480]  were 
put  in  operation  at  Chickaaha.  It  ia  inaisted 
that  Ellis,  as  tenant,  was  estopped  to  deny 
his  landlord's  title,  and  that  Riddle  ia  in  no 
better  case.  Blight  v.  Rochester,  7  Wheat 
535,  547,  6  L.  ed.  516,  519.  But  a  tenant  is 
not  estopped  to  show  that  hia  iMidlord's 
title  has  expired  or  has  been  terminated  by 
operation  of  law.  England  ex  dem.  Syburn 
V.  Slade,  4  T.  R.  682;  Blake  v.  Foster,  8 
T.  R.  487,  5  Revised  Rep.  419;  Neave  v. 
Moss,  1  Bing.  360,  8  J.  B.  Moore,  389,  2 
L.  J.  C.  P.  25;  Hopcroft  v.  Keys,  9  Bing. 
613,  2  Moore  &  S.  760;  Doe  ex  dem.  Higgin- 
botham  v.  Barton,  11  Ad.  &  EL  307;  Den 
ex  dem.  Howell  v.  Ashmore,  22  N.  J.  L. 
^61,  265;  Shields  v.  Lozear,  34  N.  J.  L. 
496,  500,  3  Am.  Rep.  256;  Uill^Qm  v.  Fogg, 
99  Mass.  11 ;  Lamson  v.  Clarkaon,  118  Maas. 
348,  18  Am.  Rep.  498. 

The  argument  that  Ellis,  by  withholding' 
possession  of  the  lot  from  Fitzpatrick,  pre- 
vented    him    from    erecting    improvements 
such  as  would  have  satisfied  the  require- 
ments of  the  Atoka  Agreement  so  as  to  con^ 
fer  upon  Fitzpatrick  the  preferential  righ^ 
to  purchase  the  lot,  and  hence  that  Ellis 
and  those  claiming  under  him  are  eatoppeJ. 
to  purchase  the  land  for  themaelvea,  and 
must  be  held  to  have  acquired  it  in  trusts 
for  Fitzpatrick  and  those  alalmlng  under 
him,  cannot  prevail.    The  facta  do  not  ahow^ 
that  Ellis's  refusal  to  pay  rent,  and  hla  re- 
sistance to  the  forcible  entry  and  detainer 
suit,  were  other  than  bona  flde.    Nor  doea 
it  appear  that  Fitzpatrick,  eren  before  the 
Atoka  Agreement,  had  any  right  of  poaies 
sion  of  the  land  aa  against  the  Indiana.    So 
far  as  the  facts  appear,  he  had  no  righta  at 
all,    except    aa    against    the    tenant,    and 
against  him  only  because  of  the  eatoppsL 
In  order  to  show  that  the  tenant,  by  with- 
holding possession,  deprived  tha  ItadUnd 
of  the  opportunity  of  exercising  a  yahiablt 
right,  it  must  be  made  to  appear  that,  with 
the  tenant  out  of  the  way,  tiie  right  would 

140  V.  8. 


1919, 


JOHNSON  y,  RIDDLE. 


<480-48S 


liaTV  ezifltod.  Bvt»  if  Bllii  had  giveii  up 
poMctrion,  Fitzpatrick  would  have  had  no 
more  right  than  any  other  white  man  to 
«nter  and  erect  improTements* — ^that  is  to 
say,  none  at  alL  At  most,  he  would  have 
iiad  a  mere  opportunity,  without  right, 
[481]  and  the  deprivation  of  this  cannot 
f  Ornish  a  foundation  tcr  impressing  a  trust 
upon  the  title  afterwards  acquired  by  Ellis's 
.grantee  by  direct  purchase  from  the  owners 
of  the  paramount  title.  .  Even  were  it  made 
to  appear  that  there  was  error  in  adjudging 
the  title  to  the  patentee,  this  would  not 
Taise  a  trust  in  favor  of  the  contestant  un- 
less he  oould  show  that  by  the  law,  properly 
4u)ministered,  the  title  ought  to  have  been 
awarded  to  him.  Bohall  v.  Dilla,  114  U. 
S,  47,  51,  29  L.  ed.  61,  63,  6  Sup.  Ct.  Rep. 
782;  Sparks  v.  Pierce,  116  U.  S.  408,  413, 
20  L.  ed.  428,  429,'  6  Sup.  Ct.  Rep.  102. 

What,  then,  was  the  nature  of  Fitzpat- 
Tick's  equity?  Under  the  facts  found,  both 
he  and  Ellis  were  trespassers  upon  the  lands 
•of  the  Indians,  in  disregard  of  rights  se- 
cured to  the  latter  by  treaty  with  the  (Jnit- 
•ed  States,  and  in  violation  of  §  2118,  Rev. 
Stat.  (Comp.  SUt.  1913,  f  4108).  The 
lease  created  a  mere  estoppel  between 
trespassers.  The  rights,  if  th^  may  be 
called  rights,  of  lessor  and  lessee  alike, 
-were  terminated  by  the  force  of  the  Agree- 
-ment.  Individual  ownership  of  the  land  orig- 
inated with  that  instrument,  and  can  be 
<mly  such  as  by  its  terms  was  created.  It 
was  competent  for  Congress,  or  for  the 
Indian  tribes,  with  the  concurrence  of  Con* 
gress,  to  deal  as  they  deemed  proper  with 
the  practical  situation  resulting  from  the 
'building  of  towns  by  white  men  within  their 
"borders.  They  chose  to  confer  a  preferen- 
tial right  of  purchase,  at  a  discount  from 
-the  appraised  value,  not  upon  the  "occu- 
pant," or  "possessor,"  or  "landlord,"  or 
'"tenant,"  but  upon  "the  owner  of  the  im- 
provements" other  than  those  of  a  tempo- 
rary nature.  This  did  not  cut  off  any  per- 
-tinent  equity,  but  it  rendered  all  equities 
Impertinent  except  such  as  related  to  the 
•ownership  of  the  improvements. 

The  Atoka  Agreement,  while  accepting 
•existing  improvements  of  a  substantial  na^ 
tnre  as  part  consideration  lor  the  purchase 
of  town  lots,  contained  no  recognition  of 
legitimacy  in  the  previous  occupation  of  the 
-soil  by  white  men,  nor  any  official  ratiflca- 
"tion  of  their  intrusion  upon  the  Indian 
lands.  It  laid  aside,  as  immaterial,  ths 
^iMStion  [4M]  whether  improvements  had 
been  constmeted  with  or  without  rightful 
possession  of  the  land.  In  this  respect  it 
4iffsTtd  from  the  Original  Creek  Agrsemsnt 
of  March  8,  1900  (act  of  ICareh  1,  1901, 
•diap.  676,  31  Stat,  at  L.  861,  866),  the  pro- 
iwsed  Cherokee  agreement  of  AprU  9,  liKM) 
^60  Ii.  ed; 


(act  ^  March  1,  1901,  ehap.  676,  31  Stat, 
at  U  848,  863),  which  failed  of  ratification 
by  the  tribe  (8th  Ann.  Rep.  Dawes  Comm. 
Oct  1,  1901;  House  Doc.  No.  5,  67th  Cong. 
1st  Sess.  vol.  24,  p.  11),  and  the  Cherc^ee 
sgreement  of  July  1,  1902  (diap.  1376,  82 
Stat,  at  L.  716,  723),  which  was  ratified 
by  the  tribe  ( 10th  Ann.  Rep.  Dawes  Coma. 
Sept.  30,  1903;  House  Doo.  No.  6,  68th 
Cong.  2d  Sess.  vol.  20,  p.  116). 

If  Fitspatrick  had  had  any  equitable  right 
or  interest  in  the  improvements  upon  the  ki 
in  controversy,  a  very  different  question 
would  be  presented.    But  he  had  none. 

We  are  referred  to  two  decisions  of  the 
United  States  court  of  appeals  for  ths  In- 
dian Territory  that  are  said  to  uphold  the 
legal  validity  of  grants  of  leasehold  inter- 
ests in  lands  in  the  CHioctaw  and  Chickasaw 
country  prior  to  the  Atoka  Agreement. 
Kelly  V.  Johnson  (1897)  1  Ind.  Terr.  184, 
189,  39  S.  W.  362,  364;  G.  W.  Walker  Trad- 
ing  Co.  V.  Grady  Trading  Co.  (1807)  1  Ind. 
Terr.  191,  196-198,  39  S.  W.  364,  366. 
These  cases,  however,  go  no  further  than 
to  hold  that  a  possessory  right  might  pass 
by  transfer  from  a  citisen  of  one  of  the 
Indian  tribes  to  a  noncitizen,  and  would 
protect  the  latter  against  forcible  entry  by 
others  not  showing  a  better  right  to  the 
possession,  nor  acting  under  authority  of 
the  tribe,  and  that  a  lease  of  such  lands 
with  improvements  estopped  the  lessee  to 
question  the  lessor's  title.  See  also  Wilson 
V.  Owens  (1897)  1  Ind.  Terr.  163,  38  S.  W. 
976,  affirmed  in  30  C.  C.  A.  267,  67  U.  S. 
App.  500,  86  Fed.  571 ;  Hockett  v.  Alston,  49 
C.  C.  A.  180,  110  Fed.  910,  reversing  s.  e.  8 
Ind.  Terr.  432,  58  S.  W.  675;  Williams  v. 
Works,  4  Ind.  Terr.  587,  76  a  W.  246; 
Fraer  v.  Washington,  60  C.  C.  A.  194,  125 
Fed.  280.  These  decisions  leave  untouched 
the  authority  of  Congress,  with  [483]  or 
without  the  consent  of  the  tribe,  to  termi- 
nate all  possessory  interests  and  dispose  of 
the  fee  in  any  manner  deemed  proper. 

Much  reliance  is  placed  upon  the  decision 
of  this  court  in  Rector  v.  Gibbon,  111  U.  & 
276,  28  L.  ed.  427,  4  Sup.  Ct.  Rep.  605, 
which  turned  upon  the  effect  of  an  act  of 
Congress  in  relation  to  the  Hot  Springs 
Reservation  in  the  state  of  Arkansas  (act 
of  March  3,  1877,  chap.  108,  19  Stat,  at 
L.  377).  The  statute  was  passed  to  relieve 
the  peculiar  hardship  resulting  from  a  de- 
cision of  the  court  of  claims,  affirmed  by 
this  court  (Hot  Springs  Cases,  92  U.  8. 
698,  713,  716,  716,  23  L.  ed.  690,  696,  697), 
holding  invalid,  for  reasons  more  or  less 
technical,  certain  land  titles  set  tip  against 
the  United  States,  some  of  them  under 
claims  of  pre-emption  and  one  under  a  New 
Madrid  location,  followed  in  each  .case  by 
long  yean  of  possession.    Rsetdr  v.  Gibbon 

7»» 


488-A8& 


8UPR£M£  COURT  OF  THE  UNITED  SXATSa 


Got.  Term, 


construed  the  legislation  in  the  light  of 
the  circumstances  out  of  which  it  arose, 
and  so  as  to  rdieve  those  who  had  made  im- 
provements or  claimed  possession  under  the 
titles  that  had  been  found  defective.  It  has 
no  proper  bearing  upon  the  questions  pre- 
sented in  the  case  at  bar.  Lsmb  ▼.  Daven- 
port, 18  Wall.  307,  21  L.  ed.  760;  Atherton 
T.  Fowler,  96  U.  8.  613,  24  L.  ed.  732;  and 
Trenouth  v.  San  Francisco,  100  U.  S.  261, 
26  L.  ed.  626,  cited  by  plaintiffs  in  error, 
are  likewise  aside  from  the  point. 

It  is,  perhaps,  unnecessary  to  mention 
that  the  matter  at  issue  here  is  not  con- 
cluded by  the  decision  in  Ellis  ▼.  Fitzpat- 
rick,  3  Ind.  Terr.  666,  64  8.  W.  567,  s.  c 
affirmed  in  66  C.  C.  A.  260,  118  Fed.  430, 
for  that  case  concerned  only  the  right  of 
possession  as  between  landlord  and  tenant, 
and  Ellis's  ownership  of  the  improvements 
was  admitted  in  the  pleadings.  The  legal 
or  equitable  title  to  the  soil  was  not  in- 
volved. 

From  the  views  above  expressed,  it  re- 
sults that  the  judgment  of  the  Supreme 
Court  of  Oklahoma  must  be  affirmed. 


[484]    HARRIET   A.   BARLOW,  Plff.   in 

Err., 

V. 

NORTHERN   PACIFIC   RAILWAY   COM- 
PANY. 

(See  8.  C.  Reporter's  ed.  484-489.) 

Public  lands  —  railroad  land  grant  — 
wlien  grant  attaches  —  completion  of 
grade  —  filing  map. 

A  definite  location  of  the  right  of 
way  of  a  railway  company  which  entitles  it 
to  the  benefit  of  the  act  of  March  3,  1875 
(18  Stat,  at  L.  482,  chap.  152,  Comp.  Stat 
1913,  §  4921),  granting  to  railroads  a 
right  of  way  through  the  public  lands,  is 
made  by  the  completion  of  the  grading 
ready  for  the  ties  and  rails,  although  a  pro- 
file map  of  the  road  has  not  been  filed  in 
the  appropriate  local  land  office. 
[For  other  cases,  see  Public  Lands,  I.  &  2,  c, 
In  Digest  Sup.  Ct.  1908.]  ^  f  ^ 

[No.  267.] 

Argued  March  8,  1916.     Decided  April  3, 

1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  North  Dakota  to  review  a  judg- 
ment which  affirmed  a  judgment  of  the  Dis- 
trict Court  of  Foster  County,  in  that  state, 
in  favor  of  plaintiff  in  a  suit  to  quiet  title. 
Affirmed. 

( 

Non. — ^As  to  land  grants  to  railroads — 
see  nota  to  Kansas  P.  R.  Co.  v.  Atchison. 
T.  4  &  f .  R.  Co.  28  L.  ad.  U.  a  794. 


See  same  case  below,  26  N.  D.  159^  14S 
N.  W.  903. 
The  facts  are  stated  in  the  opinion. 

Mr.  8.  B.  BUsvrorth  argued  the  cause, 
and,  with  Mr.  John  Knauf,  filed  a  brief  for 
plaintiff  in  error. 

Mr.  Gluurlea  Donnelly  argued  the  cause, 
and  Messrs.  Gharlea  W.  Bunn  and  Bmerson 
Hadley  filed  a  brief  for  defendant  in  error. 

Mr.  Chief  Justice  White  delivered  the 
opinion  of  the  court: 

In  Jamestown  A  N.  R.  Co.  v.  Jones,  177 
U.  8.  125,  44  L.  ed.  698,  20  Sup.  Ct.  Rep. 
568,  there  came  under  consideration  the 
construction  of  the  act  of  Congress  of  March 
3,  1875,  entitled,  "An  Act  Granting  to  RaU- 
roads  the  Right  of  Way  through  the  Publio 
Lands  [485]  of  the  United  States,"  chap. 
152,  18  SUt.  at  L.  482,  Comp.  Stat.  1913,  g 
4921.  The  case  involved  a  controversy  be- 
tweoi  the  railroad  which  was  entitled  to  the 
benefit  of  the  act  and  Jones,  a  homestead  en* 
tryman  holding  a  patent  of  the  United  States 
in  consequence  of  rights  initiated  after  the 
railroad  had  constructed  its  line,  but  before 
it  had  filed  a  map  of  its  right  of  way  in 
the  appropriate  local  land  office.  The  rail- 
road claimed  that  its  right  of  way  across 
the  land  covered  by  Jones's  patent  was  para- 
mount, and  Jones  asserted  that  his  right 
under  the  patent  was  dominant.  Giving 
sanction  to  a  previous  course  of  administra- 
tive construction  dealing  with  unsurveyed 
public  land,  it  was  held  that  an  appropria- 
tion of  the  right  of  way  by  a  construction 
of  the  road  under  the  statute  gave  tiie  rail- 
road the  paramount  right,  and  that  the 
provision  of  the  statute  concerning  the  filing 
of  a  map  and  profile  in  the  local  land  office 
was  intended  not  to  deprive  of  the  power  to 
Ax.  and  secure  the  right  of  way  by  construc- 
tion in  advance  of  filing  such  map  and  pro- 
file, but  simply  to  afford  the  means  of  se- 
curing the  right  of  way  in  advance  of  con- 
struction. The  two  methods  of  securing  the 
right,  the  one  by  construction  of  the  road, 
and  the  other  in  anticipation  of  constmo- 
tion  by  filing  a  mi^,  were  decided  to  in  no 
wise  conflict  the  one  with  the  other,  as  both 
afforded  a  means  of  securing  the  ri^^t  which 
the  statute  gave.  The  opinion  pointed  out 
that  although  the  previous  administrative 
rulings  w^re  concerned  only  with  unsur- 
veyed lands,  they  were  equally  applicable 
under  the  statute  to  surveyed  lands,  and  it 
was  thus^conduded:  *^t  follows  frooi  these 
views  that  the  grant  to  plaintiff  in  error 
(the  railroad  company)  by  the  aet  of  1876 
became  definitely  fixed  by  the  actual  eon- 
stmetion  of  its  road,  and  that  the  entry  of 
the  defendant  in  error  (Jones)  was  sobjeet 
thereto.** 

14«  V.  B. 


101  o. 


BARLOW  ▼.  NORTHERN  P.  R.  CO. 


486-488 


In  Minneapolii,  St  P.  &  8.  SU.  M.  R. 
06.  T.  Doughty,  208  U.  S.  261,  62  L.  ed.  474, 
28  Sup.  Ct.  Rep.  281,  the  oontroyeny  was 
between  the  railway  company  and  a  settler 
holding  a  patent  of  the  United  [486]  States 
whose  right  had  been  initiated  before  the 
oonstruction  of  the  railroad,  but  after  a  pre- 
liminary survey  which  had  been  made  by 
the  railroad  as  a  means  of  ultimately  de- 
termining upon  what  line  it  would  build 
its  road,  the  stakes  of  such  survey  being, 
at  the  time  the  settler  initiated  his  right, 
acroBS  the  land  in  question.  The  claim  of 
the  settler  was  that  a  mere  entry  of  the 
railroad  for  the  purpose  stated  was  not  a 
construction  within  the  meaning  of  the 
Jones  Case,  while  that  of  the  railroad  was 
"that  an  entry  upon  the  land  to  locate  the 
road  is  as  necessary  as  an  entry  on  the  land 
to  build  the  road,  and,  being  there,  the  rail- 
road 'could  not  become  a  trespasser,  either 
as  to  the  government  or  as  to  the  plaintiff.' " 
It  was  decided  that  as  a  mere  preliminary 
step  for  the  purpose  of  determining  where 
the  road  should  be  located  was  not,  in  and 
of  itself,  the  equivalent  of  a  definite  loca- 
tion of  the  line  and  a  permanent  appropria- 
tion of  the  right  of  way,  the  case  was  not 
covered  by  the  rule  of  the  Jones  Case  and 
the  right  of  the  settler  was  paramount. 

Which  of  these  rulings  is  here  controlling 
is  the  single  question  sirising  for  decision 
on  this  record,  as  will  be  at  once  seen  by 
the  following  statement  of  the  case: 

The  suit  was  commenced  by  the  railroad 
to  quiet  its  title  to  its  right  of  way  across 
a  quarter  section  of  land  which  had  been 
patented  by  the  United  States  to  the  defend- 
ant. The  latter  not  only  by  answer,  but  by 
counterclaim,  asserted  the  paramount  nature 
of  his  right.  The  court  below,  affirming  the 
action  of  the  trial  court,  held  that  the  rights 
of  the  railroad  were  paramount  upon  the 
conclusion  that  the  facta  found  dearly 
brought  the  case  within  the  rule  established 
in  the  Jones  Case.  26  N.  D.  169,  143  N. 
W.  908.  The  facta  as  thus  established  were 
these: 

"  'On  the  said  22d  day  of  July,  a.  d.  1883, 
intending  to  make  entry  of  the  said  land 
herein  described  when  the  same  was  sur- 
▼eyed*  and  to  aequire  title  to  the  same  by 
[487]  Tiitne  of  compliance  with  the  pre- 
emption laws  of  the  United  States,  said 
Frederick  G.  Barlow  [the  predecessor  in  title 
of  the  plaintiff  in  error]  settled  upon  said 
land  and  took  up  his  residence  thereon.  At 
the  time  of  sneh  settlonent  there  was  not  a 
railroad  track  or  line  of  railroad  in  opera- 
tloB  aeroaa  said  land  at  any  place,  nor  had 
plat  or  profile  of  the  section  of  railroad  ex- 
tending across  said  land  hereinbefore  re- 
ferred to  been  filed  in  the  United  States 
district  land  office  at  Fargo.'  We  find  from 
•0  li.  ed. 


the  evidence  that  although  Barlow  entered 
upon  the  land  upon  the  22d  day  of  July 
A.  o.  1883,  the  grading  of  the  road  across 
said  land  was  completed  prior  to  May  31, 
1883;  that  is  to  say,  nearly  two  months 
before  his  settlement.  We  also  find  the 
rails  were  laid  upon  the  grade  between  Au- 
gust 10  and  16,  1883,  and  that  trains  were 
operated  on  said  road  and  across  said  land 
soon  after." 

That  under  these  facts  the  court  below 
was  right  in  holding  that  the  controversy 
was  foreclosed  by  the  ruling  in  the  Jones 
Case  we  think  is  too  clear  for  anything  but 
statement.  The  contention  that  the  case  is 
controlled  by  the  Doughty,  and  not  the 
Jones  Case,  because  the  road  was  not  com- 
plete and  operating  when  the  entryman  in- 
itiated his  rights,  although  it  was  then 
graded  and  was  virtually  ready  for  the  ties 
and  rails,  if  acceded  to,  would  render  the 
statute  inefficacious,  and  dominate  the  sub- 
stance of  things  by  the  mere  shadow.  The 
first,  because  as  it  is  impossible  to  conceive 
of  the  completion  of  the  road  by  the  placing 
of  ties  and  the  laying  of  rails  without  pre- 
supposing the  prior  doing  of  the  work  of 
grading,  it  would  follow  that  the  recogni- 
tion of  the  right  of  an  entryinan  to  appro- 
priate adversely  to  the  railroad  after  the 
grading  had  been  done,  and  before  the  lay- 
ing of  the  ties  and  rails,  would  render  the 
performance  of  the  latter  useless,  and  would 
deprive  the  railroad,  therefore,  of  all  prac- 
tical power  to  appropriate.  Tbe  second,  be- 
cause, as  pointed  out  in  Stalker  v.  Oregon 
[488]  Short  Line  R.  Co.  226  U.  S.  142, 56  L. 
ed.  1027, 32  Sup.  Ct.  Rep.  636,  the  decision  in 
the  Jones  Case  rested  not  upon  the  ground 
that  the  work  of  construction  had  reached 
the  absolutely  completed  stage  so  as  to  en- 
able the  road  to  be  operated,  but  on  the 
fact  that  the  work  was  of  such  a  character 
as  to  manifest  that  the  railroad  company 
had  exercised  its  judgment  as  to  where  its 
line  was  to  be  established,  and  had  done 
such  work  of  construction  as  "necessarily 
fixes  the  position  of  the  route  and  consum- 
mates the  purpose  for  which  the  grant  of 
a  right  of  way  is  given."  (p.  160.)  And 
it  is  obvious  tiiat  tiis  standard,  when  com- 
plied with,  would  serve  not  only  to  demon- 
strate the  fixed  intention  of  the  railroad  to 
appropriate,  but  also  to  give  tangible  and 
indubitable  evidence  to  others  of  the  right 
of  way  appropriated,  thus  preventing  injury 
to  iimocent  persons  which  might  result 
from  their  selection  of  land  in  igaorance  of 
the  faet  of  its  prior  impropriation.  The 
distinction  between  the  doctrine  of  the  Jones 
Case  and  that  of  the  Doughty  Case  is  there- 
fore that  which  necessarily  must  obtain  be- 
tween permanent  work  of  construction  of  a 
railroad  on  a  line  definitely  selected  and 

781 


488,  480 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Term, 


fixed  by  it,  and  mere  tentative  work  of  sur- 
veying, done  by  a  railroad  for  the  purpoee 
of  enabling  the  line  which  it  was  proposed 
to  construct  to  be  ultimately  selected  The 
broad  distinction  between  this  case  and  the 
Doughty  Case,  both  as  to  the  fundamental 
rights  given  by  the  statute  and  the  protec- 
tion to  innocent  parties,  was  thus  lucidly 
pointed  out  by  the  court  below  in  its  opin- 
ion: 

"There  can  be  no  doubt,  indeed,  that  the 
route  was  fixed,  both  on  account  of  the 
physical  construction  and  the  difficulty  of  a 
subsequent  removal,  .  .  .  The  entryman 
in  this  case  can  have  no  more  grounds 
for  complaint  than  could  the  entryman 
in  the  case  of  Stalker  v.  Oregon  Short  Line 
R.  Co*,  supra.  It  would  be  absurd  to  hold 
fchat  one  who  enters  upon  land  and  sees  up- 
on it  a  railroad  grade  which  is  only  eighteen 
days  from  physical  completion,  and,  as  we 
have  a  right  to  believe,  but  a  link  in  miles 
of  [480]  road  stretching  across  the  same 
prairie,  was  not  aware  of  this  prior  railroad 
occupation." 

We  have  not  stopped  to  consider  an  in- 
timation contained  in  the  argument  that 
the  court  erred  in  its  finding  of  fact  as  to 
the  state  of  construction  of  the  road  at  the 
time  the  entry  by  Barlow  was  made,  because 
without  at  all  questioning  our  power  to  re- 
view the  facts  in  so  far  as  necessary  to  dis- 
pose of  the  Federal  contention,  we  consider 
the  suggestion  wholly  without  merit,  first, 
because  we  would  not  in  any  event  disregard 
the  finding  of  fact  of  the  court  below  ex- 
cept upon  conviction  of  clear  error  commit- 
ted, for  which  the  record  here  affords  no 
ground  whatever;  and  second,  because  as 
the  finding  of  the  court  below  was  also  the 
finding  of  the  trial  court,  the  request  in- 
vites us  to  disregard  the  findings  of  both 
courts  on  a  matter  of  fact  in  the  absence  of 
any  ground  for  a  conviction  that  error  of 
fact  was  clearly  committed. 

Affirmed. 


SEABOARD  AIR. LINE  RAILWAY,  Plff. 

in  Err., 

V. 

8.  W.  KENNEY,  Administrator  of  Beb 
Isaac  Ci^ehart,  alias  Beb  Isaac  Eason. 

(See  8.  C.  Reporter's  ed.  489-497.) 

Death  —  action  under  Federal  employ- 
ers' liability  act  —  beneficiaries  — 
next  of  kin. 

1.  The  "next  of  kin,"  for  whose  benefit 
an  action  under  the  Federal  employers'  lia- 
bility act  of  April  22,  1908  (36  Stat,  at  L. 
65,  chap.  149),  as  amended  by  the  act  of 
April  6,  1910  .(36  Stat,  at  L.  291,  chap. 
7M 


143,  Comp.  Stat.  1913,  i  8662),  may  be 
maintained  to  recover  damages  for  the  neg- 
ligent killing  of  their  intestate  by  his  inter- 
state railway  employer,  are  those  who  are 
the  next  of  kin  under  the  local  law. 
[For  other  cases,  see  Death,  IL  b,  In  Digest 
Sup..  Ct    1908.1 

Judgment  —  res   judicata  —  questions 
necessarily  InToWed. 

2.  A  ruling  of  a  state  oourt  that  the 
"next  of  kin,"  for  whose  benefit  an  action 
under  the  Federal  employers'  liability  act 
of  April  22,  1908  (35  Stat  at  L.  65,  chap. 
149),  as  amended  by  the  act  of  April  5, 
1910  (36  Stat,  at  L.  291,  chap.  143,  Comp. 
SUt.  1913,  §  8662),  may  be  maintained  to 
recover  damages  for  the  negligent  killing 
of  an  illegitimate  child  by  his  interstate 
railway  employer,  are,  under  the  local  law, 
the  legitimate  children  of  the  same  mother, 
she  being  dead,  negatives  the  existence  of 
any  right  to  trace  the  parentage  of  the 
illegitimate  child  so  as  to  make  the  asserted 
father  the  parent  under  the  Federal  statute. 
[For  other  cases,  see  Judgment,  III.  J,  2,  la 

Digest  Sup.  Ct.  1908.] 

Error  to  state  court  —  following  deci- 
sion below. 

3.  Without  a  clear  conviction  of  error, 
the  Federal  Supreme  Court  will  not  reverse, 
on  writ  of  error  to  a  state  court,  the  ruling 
of  both  courts  below  that  there  was  evi- 
dence tending  to  show  that  the  "next  of 
kin,*'  for  whose  benefit  an  action  under  the 
Federal  employers'  liability  act  of  April 
22,  1008  (35  Stat,  at  L.  65,  chap,  149), 
as  amended  by  the  act  of  April  5,  1910  (36 
Stat,  at  L.  291,  chap.  143,  Comp.  Stat.  1913, 
§  8662),  was  brought  to  recover  damages 
for  the  negligent  killing  of  their  intestate 
by  his  intersUite  railway  employer,  were  so 
dependent  on  the  deceased  as  to  justify  a 
recovery  under  the  Federal  statute. 

[For  other  cases,  see  Appeal  and  Error,  VIII. 
m,  1,  in   Digest   Sup.  Ct.  1908.] 

[No.  269.] 

Argued  March  10,  1916.    Decided  April  8, 

1916. 

Note.— On  the  constitutionality,  applica- 
tion, and  effect  of  the  Federal  employers' 
liability  act — see  notes  to  Lamphere  v.  Ore- 
gon R.  k  Nav.  Co.  47  L.RJk.(N.8.)  38,  and 
SMboard  Air  Line  R.  Co.  ▼.  Horton,  L.RJL. 
1915C,  47. 

On  conclusiveness  of  Judgments,  gener- 
ally— see  notes  to  Sharon  v.  Terry,  1  L.R.A. 
572;  Bollong  v.  Schuyler  Nat.  Bank,  3 
L.R.A.  142;  Wiese  v.  San  Francisco  Musical 
Fund  Soc.  7  L.R.A.  577 ;  M'>rriU  v.  Morrill, 
11  L.R.A.  156 ;  Shores  ▼.  Hooper,  11  L.RJL 
308;  Bank  of  United  States  v.  Beverly,  11 
Lw  ed.  U.  8.  76 ;  Johnson  Steel  Street  R.  Co. 
V.  Wharton,  38  L.  ed.  U.  S.  429;  and  South- 
em  P.  R.  Co.  ▼.  United  States,  42  L.  ed. 
U.  S.  355. 

On  error  to  state  court  in  cases  arising 
under  the  Federal  employers'  liability  act — 
see  note  to  Great  Northern  R.  Co.  ▼.  Knapp, 
ante,  745. 

S40  U.  8* 


1910. 


S£ABOARD  A.  L.  R.  00.  ▼.  KENNEY. 


IN  ERROR  to  the  Supreme  Court  of  the 
State  of  North  Cftrolina  to  review  a  judg- 
ment whidi  affirmed  a  judgment  of  the  Su- 
perior Court  of  Bertie  County,  in  that  state, 
In  favor  of  plaintiff  in  an  action  for  death, 
brought  under  the  Federal  employers'  liabil- 
ity act.    Affirmed. 

See  same  case  below,  167  N.  C.  14,  L.R.A. 
^,  — ,  82  S.  E.  968. 

The  facts  are  stated  in  the  opinion. 

Mr.  Mnimy  Allen  argued  the  cause  and 
filed  a  brief  for  plaintiff  in  error: 

Allegation  and  proof  of  the  existence  of 
beneficiaries,  as  defined  by  the  Federal  em- 
ployers' liability  act,  are  essential  to  a 
ri^t  to  recover  damages  for  the  death  of 
an  employee. 

Michigan  C.  R.  Co.  v.  Vreeland,  227  U.  S. 
59,  57  L.  ed.  417,  33  Sup.  Ct.  Rep.  192,  Ann. 
Cas.  1914C,  176;  Garrett  v.  Louisville  &  N. 
R.  Co.  236  U.  S.  308,  59  L.  ed.  242,  35  Sup. 
Ct.  Rep.  32;  Melzner  v.  Northern  P.  R.  Co. 
46  Mont.  277,  127  Pac.  1002;  Illinois  C.  R. 
Co.  V.  Doherty,  153  Ky.  363,  47  L.KA.(N.S.) 
31,  155  S.  W.  1119;  Thornton.  Federal  Em- 
ployers' Liability  Act,  §  113;  Tiffany,  Death 
by  Wrongful  Act,  §  182;  Serensen  v.  North- 
ern P.  R.  Co.  45  Fed.  407;  Southern  R.  Co. 
V.  Maxwell,  113  Tenr.  464,  82  S.  W.  1137; 
Foster  v.  St.  Luke's  HospiUl,  191  IlL  94,  60 
N.  £.  803. 

The  expression  ''next  of  kin,"  as  used  in 
the  Federal  employers'  liability  act,  is  to  be 
construed  in  the  light  of  the  common  law. 

State  V.  Engle,  21  N.  J.  L.  360;  Kitchen  v. 
Tyson,  7  N.  C.  (3  Murph.)  314;  Adams  v 
Turrentine,  80  N.  C.  (8  Ired.  L.)  147;  Me- 
Cool  V.  Smith,  1  Black,  459,  17  L.  ed.  218; 
Rice  V.  Minnesota  &  N.  W.  R.  Co.  1  Black, 
374,  17  L.  ed.  161;  United  States  v.  Sanges, 
144  U.  S.  311,  36  L.  ed.  445,  12  Sup.  Ct. 
Rep.  609;  United  States  v.  Wong  Kim  Ark, 
169  U.  S.  654,  42  L.  ed.  892, 18  Sup.  Ct.  Rep. 
456;  Charles  River  Bridge  v.  Warren  Bridge, 
11  Pet.  420,  9  L.  ed.  773;  Standard  Oil  Co. 
v.  United  States,  221  U.  S.  1,  69,  65  L.  ed. 
619,  644,  34  L.RJ^.(N.S.)  834,  31  Sup.  Ct. 
Rep.  502,  Ann.  Oss.  1912D,  734;  United 
States  T.  American  Tobacco  Co.  221  U.  S. 
106,  55  L.  ed.  663,  31  Sup.  Ct  Rep.  632; 
Western  U.  Teleg.  Co.  v.  Call  Pub.  Co.  181 
U.  S.  92,  103,  45  L.  ed.  765,  771,  21  Sup. 
Ct  Rep.  561;  Capital  Traction  Co.  v.  Hof, 
174  U.  S.  8,  43  L.  ed.  875,  19  Sup.  Ct.  Rep. 
580;  Murray  ▼.  Chicago  &  N.  W.  R.  Co,  62 
Fed.  24;  Truelove  v.  Truek>ve,  172  Ind. 
444,  27  LJLA.(N.S.)  220,  139  Am.  St  Rep. 
404,  86  N.  E.  1018,  88  N.  £.  616;  Michigan 
0.  R.  Co.  ▼.  Vreeland,  227  U.  S.  59,  57  L.  ed. 
417,  33  Sup.  Ct  Rep.  192,  Ann.  Cas.  1914C, 
176;  Garrett  v.  Louisville  &  N.  R.  Co.  235 
U.  S.  308,  59  L.  ed.  242,  35  Sup.  Ct.  Rep. 
32;  Seaboard  Air  Line  R.  Co.  v.  Horton,  233 
•0  li.  ed. 


U.  S.  492,  58  L.  ed.  1062,  LJLA.1915C,  1, 
34  Sup.  Ct.  Rep.  636,  8  N.  C.  C.  A.  834,  Ann. 
Cas.  1915B,  475;  Missouri,  K.  &  T.  R.  Co.  v. 
Harriman,  227  U.  S.  667,  67  L.  ed.  690,  33 
Sup.  Ct.  Rep.  397;  Adams  Exp.  Co.  v. 
Croninger,  226  U.  S.  491,  57.L.  ed.  814,  44 
LJtA.(N.S.)  257,  33  Sup.  Ct  Rep.  148. 

Where  a  statute  of  anotiier  state  or 
country  ia  mainly  adopted,  thou^^  not  en- 
tirely, and  unchanged,  the  prior  decisions  of 
the  foreign  court  interpreting  the  statute 
are  entitled  to  great  weight 

2  Lewis's  Sutherland,  Stat.  Constr.  §  404; 
11  Enc.  U.  S.  Sup.  Ct.  Rep.  153;  Cathcart  v. 
Robinson,  5  Pet.  264,  8  L.  ed.  120;  Robinson 
V.  Belt,  187  U.  S.  47,  47  L.  ed.  68,  23  Sup. 
Ct.  Rep.  16. 

The  Federal  act  has  as  the  basis  of  its 
enactment  Lord  Campbell's  act. 

Michigan  C.  R.  Co.  v.  Vreeland,  227  U.  S. 
59,  67  L.  ed.  417,  33  Sup.  Ct.  Rep.  192,  Ann. 
Cas.  1914C,  176. 

The  English  courts  have  held  that  a  bas- 
tard is  not  a  ''child"  within  the  provisions 
of  Lord  Campbell's  act. 

Dickinson  v.  North  Eastern  R.  Co.  2 
Hurlst.  &  C.  735,  33  L.  J.  Exch.  N.  S.  91,  9 
L.  T.  N.  S.  209,  12  Week.  Rep.  62. 

At  common  law  the  words  "parent," 
''child,"  "next  of  kin,"  and  words  of  simi- 
lar import,  were  held  to  relate  only  to  those 
who  are  legitimate. 

McCool  V.  Smith,  1  BUck,  459,  17  L.  ed. 
218;  Jones  v.  Jones,  234  U.  S.  615,  58  L.  ed. 
1600,  34  Sup.  Ct.  Rep.  937;  Coor  v.  Starling, 
54  N.  C.  (1  Jones,  Eq.)  243. 

Words  of  kindred,  when  used  in  a  statute 
creatihg  a  right  of  action  for  death  by 
wrongful  act,  refer  solely  to  legitimates. 

Lynch  v.  Knoop,  118  La.  611,  8  LJIJL 
(N.S.)  480, 118  Am.  St.  Rep.  391,  43  So.  252, 
10  Ann.  Cas.  807;  Dickinson  v.  North  East- 
em 'R.  Co.  supra;  Gibson  v.  Midland  R.  Co. 
2  Ont.  Rep.  658;  Clarke  v.  Carfin  Coal  Co. 
[1891]  A.  C.  412;  McDonald  v.*  Southern  R. 
Co.  71  S.  C.  352,  2  L.RJl.(N.S.)  640,  110 
Am.  St.  Rep.  576,  51  S.  E.  188;  Robinson  v. 
Georgia  R.  &  Bkg.  Co.  117  Ga.  168,  60 
L.RJL.  555,  97  Am.  St  Rep.  156,  43  S.  E. 
452;  Illinois  C.  R.  Co.  v.  Johnson,  77  Miss. 
727,  51  L.RJL.  837,  28  So.  753;  Runt  ▼. 
Illinois  C.  R.  Co.  88  Miss.  575,  41  So.  1 ;  Mo- 
Donald  V.  Pittsburgh,  C.  C.  &  St  L.  R.  Co. 
144  Ind.  459,  32  L.R.A.  309,  55  Am.  St.  Rep. 
185,  43  N.  E.  447;  Tiffany,  Death  by 
Wrongful  Act,  2d  ed.  §  85. 

In  its  sphere  the  Federal  act  is  complete, 
and  in  matters  of  substance  it  is  not  to  be 
added  to  or  changed  by  state  regulatioiis. 

Michigan  C.  R.  Co.  v.  Vreeland,  supra; 
Southern  R.  Co.  v.  Jacobs,  116  Va.  189,  81 
S.  E.  99;  Doherty,  Liability  of  Railroads  to 
Interstate  Employees,  p.  241;  Taylor  v. 
Tayk>r,  232  U.  &  363,  58  L.  ed.  638,  34  Sup. 

7%^ 


491,942 


SUPRE^fE  COURT  OF  THE  UNITED  STATEa 


Cor.  TkiM, 


Ct  Rep.  860,  e  N.  C.  0.  A.  436;  Second  Em- 
ployers' Liability  Cases  (Mondou  v.  New 
York,  N.  H.  &  H.  R.  Co.)  223  U.  S.  1,  66 
L.  ed.  327,  38  LJIA.(N.S.)  44,  32  Sup.  Ct. 
Rep.  169,  1  N.  C.  C.  A.  876;  Seaboard  Air 
Line  R.  Co.  ▼.  Horton,  233  U.  S.  492,  68  L. 
ed.  1062,  L.RJL1915C,  1,  34  Sup.  Ct  Rep. 
636,  8  N.  0.  C.  A.  834,  Ann.  Cas.  1916B,  476; 
McGovern  v.  Philadelphia  &,  R.  R.  Co.  236 
U.  S.  389,  69  L.  ed.  283,  36  Sup.  Ct.  Rep. 
127,  8  N.  C.  C.  A.  67;  Norton  v.  Erie  R.  Co. 
163  App.  Diy.  468,  148  N.  Y.  Supp.  771. 

Uniformity  in  the  application  of  the 
Federal  employers'  liability  act  will  be  en- 
tirely destroyed  if  the  expression  ''next  of 
kin"  is  to  be  defined  in  accordance  with  the 
legislation  and  judicial  decisions  of  the 
various  states. 

Butler  V.  Elyton  Land  Co.  84  Ala.  384,  4 
So.  676;  Bent  ▼.  St.  Vrain,  30  Mo.  268; 
Woodward  v.  Duncan,  1  Coldw.  662;  Bacon 
t;  McBride,  32  Vt.  686;  Woltemate's  Appeal, 
86  Pa.  219;  Remington  y.  Lewis,  8  B.  Mon. 
606;  McBryde  ▼.  Patterson,  78  N.  C.  412; 
Croan  ▼.  Phelps,  23  L.RA.  763,  note;  Smith 
▼.  Howard,  41  Am.  St.  Rep.  637,  and  note, 
86  Me.  203,  29  Atl.  1008;  Leake  t.  Gilchrist, 
13  N.  C.  (2  Dey.  L.)  76;  Alyany  y.  Powell, 
66  N.  C.  (2  Jones,  Eq.)  61;  Medley  v.  Dun- 
lap,  90  N.  C.  627;  14  Cyc  24. 

If  Sills  Hardy,  Joe  Hardy,  and  Nettie 
Hardy  are  the  next  of  kin  of  the  deceased 
employee,  plaintiff  has  failed  to  show  that 
they  were  dependent  upon  such  employee. 

Illinois  C.  R.  Co.  y.  Doherty,  163  Ky.  363, 
47  LJUIl.(N.S.)  31,  166  S.  W.  1119;  Jones 
y.  Charleston  &  W.  C.  R.  Co.  98  S.  C.  197, 
82  S.  E.  415;  Dooley  y.  Seaboard  Air  Line 
R.  Co.  163  N.  C.  464,  L.R.A.1916E,  — ,  79 
S.  E.  970;  Cincinnati,  N.  0.  &  T.  P.  R.  Co. 
y.  Wilson  (Cincinnati,  N.  0.  &  T.  P.  R.  Co. 
y.  Stephens)  157  Ky.  460,  61  L.R.A.(N.S.) 
308,  163  S.  W.  403;  Garrett  y.  Louisville'  & 
N.  R.  Co.  117  C.  C.  A.  109,  197  Fed.  715,  3 
N.  C.  C.  A.  769,  affirmed  in  285  U.  S.  308,  59 
L.  ed.  242,  36  Sup.  Ct.  Rep.  32;  Gulf,  C.  & 
S.  P.  R.  Co.  v.  McGinnis,  228  U.  S.  173,  67  L. 
ed.  786,  33  Sup.  Ct.  Rep.  426,  3  N.  C.  C.  A. 
806;  Mchigan  0.  R.  Co.  v.  Vreeland,  227 
U.  S.  69,  67  L.  ad.  417,  33  Sup.  Ct.  Rep.  192, 
Ann.  Gas.  1914C,  176;  Little  v.  Caldwell,  158 
N.  C.  351,  39  L.RA.(N.S.)  460,  74  S.  E.  10; 
Stimpson  y.  Wood,  67  L.  J.  Q.  B.  N.  S.  486, 
69  L.  T.  N.  S.  218,  36  Week.  Rep.  734,  52 
J.  P.  822;  Standard  Forgings  Co.  v.  Hohn- 
strom,  68  Ind.  App.  306,  104  N.  E.  872,  7 
N.  C.  C.  A.  713;  13  Cye.  861;  Sedgw.  Dam- 
ages, 9th  ed.  §  170. 

Mr.  Francis  D.  Wlnaton  argued  the 
cause,  and,  with  Mr.  J.  H.  Matthews,  filed 
a  brief  for  defendant  in  error: 

The  question  of  relationship  between  the 
beneflciariea  in  this  oaae  and  tbair  iUegiti- 
7«4 


mate  half  brother  by  the  same  mother  is  to 
be  determined  by  the  laws  of  North  Caro- 
lina, where  they  live. 

Re  Burms,  136  U.  &  680,  84  L.  ed.  601, 
10  Sup.  Ct.  Rep.  860;  Cope  y.  Cope,  137  U. 
S.  686,  34  L.  ed.  833,  11  Sup.  Ct  Rep.  222; 
Hutchinson  Invest.  Co.  v.  Caldwell,  162  U. 
S.  66,  38  L.  ed.  366,  14  Sup.  Ct  Rep.  604; 
United  SUtes  v.  Fox,  04  U.  S.  316,  320,  24 
L.  ed.  192, 193;  Cade  v.  Davis,  96  N.  a  147, 
2  S.  E.  226;  Lamar  v.  Micou,  112  U.  S.  462, 
28  L.  ed.  761,  6  Sup.  Ct.  Rep.  221;  Knights 
Templars  &  M.  Mut.  Aid  Asso.  y.  Greene, 
79  Fed.  461. 

The  next  of  kin  were  dependent  upon  de- 
ceased within  the  meaning  of  the  act. 

Dooley  v.  Seaboard  Air  Line  R.  Co.  163 
N.  C.  464,  L.ILA.1916E,  — ,  79  S.  E.  970; 
Michigan  C.  R.  Co.  v.  Vreeland,  227  U.  S. 
59,  67  L.  ed.  417,  33  Sup.  Ct  Rep.  192,  Ann. 
Cas.  1914C,  176;  American  R.  Co.  v. 
Didricksen,  227  U.  S.  146,  57  L.  ed.  466,  33 
Sup.  Ct.  Rep.  224;  Gulf,  C.  k  S.  F.  R.  Co.  v. 
McGinnis,  228  U.  S.  173,  67  L.  ed.  786,  33 
Sup.  Ct.  Rep.  426,  3  N.  C.  a  A.  806. 

Mr.  Chief  Justice  White  delivered  .the 
opinion  of  the  court: 

The  trial  court  on  the  verdict  of  a  jury 
entered  judgment  against  the  plaintiff  in 
error  for  the  sum  of  $800  for  the  negligent 
killing  of  Capehart,  who  was  one  of  its 
employees,  and  this  writ  of  error  is  prose- 
cuted to  reverse  the  action  of  the  court  be- 
low, affirming  such  judgment.  167  N.  C.  14, 
L.RJ^.— ,  — ,  82  S.  E.  968.  At  the  time  of 
his  death  Capehart  was  a  minor  and  was 
employed  by  the  defendant  company  as  a 
switchman.  The  accident  occurred  in  North 
Carolina  on  an  interstate  freight  train 
moving  from  a  point  in  North  Carolina  to 
one  in  Virginia.  The  suit  to  recover  was 
specifically  based  on  the  employers'  liabil- 
ity act  of  April  22,  1908,  35  Stat  at  L.  65, 
chap.  149,  as  amended  April  6,  1910,  36 
Stat  at  L.  291,  chap.  143,  Comp.  Stat  1913, 
§  8662,  and  as  both  parties  concede  that 
that  act  was  applicable,  that  subject  may  be 
put  out  of  view. 

[402]  The  deceased  was  a  natural 
or  illegitimate  child,  bom  in  North  Caro- 
lina, and  the  next  of  kin  for  whose 
benefit  the  administrator  sued,  he  having 
been  qualified  at  the  alleged  domidl 
of  the  deceased  in  North  Cut>lina,  were 
three  minor  children  of  the  deceased's 
mother,  the  issue  of  a  marriage  by 
her  contracted  after  his  birth,  she,  the 
mother,  being  dead  at  the  time  of  the  acci- 
dent. There  was  no  question  in  the  court 
below  as  to  nonliability  because  of  an  ab- 
sence of  negligence,  since,  as  pointed  out  by 
the  court,  the  sole  contention  pressed  upoa 
it  for  reversal  was  that  the  tbunages  for  the 

140  V.  B. 


101S. 


8KAB0ABD  A.  L.  R.  00.  ▼.  KENNEY. 


40&-404 


death  had  bceo  awarded  to  peraons  who  wert 
not  entitled  to  the  recovery  as  next  of  kin 
vnder  the  act  of  Congress,  even  although 
they  were  the  next  of  kin  by  the  law  of  the 
•tate.  Thus  the  court  said:  "The  solo  con- 
tention of  the  defendant  requiring  our  con- 
sideration is  that  the  expression  'next  of 
kin,'  as  used  in  f  1  of  this  act  [the  act  of 
Congress],  is  to  be  construed  by  the  common 
law,  disregarding  the  state  law  defining 
those  words."  After  then  quoting  from  the 
%tate  statute  on  the  subject,  the  court  fur- 
ther said:  "It  is  very  clear  that  in  North 
Carolina  the  two  half  brothers  and  the  sister 
of  the  intestate  are  his  next  of  kin.  It  seems 
to  us  immaterial  whether  it  were  formerly 
otherwise  in  this  state,  either  by  statute  or 
the  common  law  before  any  statute.  The 
question  is.  Who  was  the  'next  of  kin'  at 
the  time  of  such  death  in  the  state  where 
the  wrongful  death  occurred?"  Proceeding 
to  examine  and  decide  this  question,  it  was 
held  that  next  of  kin  for  the  purpose  of  the 
recovery  under  the  act  of  Congress  were  the 
next  of  kin  as  established  by  the  law  of  the 
state  where  the  right  to  recover  obtained. 
And  it  is  the  correctness  of  this  ruling 
which  we  are  alone  called  upon  to  consider, 
since,  despite  the  great  number  of  assign- 
ments of  error  which  are  made,  they  all 
in  last  analysis  depend  upon  that  question. 
We  need  not  stop  to  review  the  assignments 
to  demonstrate  this  fact,  since  in  argument 
they  are  all  stated  as  embracing  the  solution 
of  three  [403]  inquiries,  which,  as  we  shall 
see  when  we  oonsifder  them,  will  be  virtually 
disposed  of  by  deciding  the  single  question 
concerning  the  correctness  of  the  ruling  of 
the  court  below  as  to  the  next  of  kin  under 
the  statute.  The  three  questions  thus  stated 
are  in  substance  as  follows:  First,  whether 
the  minor  children,  who,  under  the  law  of 
North  Carolina,  were  the  next  of  kin  of 
their  natural  or  illegitimate  brother,  be- 
cause of  their  common  motherhood,  were  the 
the  next  of  kin  under  the  act  of  Congress? 
Second,  if,  in  the  absence  of  a  parent,  they 
were  so,  would  the  proof  of  the  existence  of 
an  asserted  father  of  the  deceased  make 
such  person  his  parent  within  the  act  of 
Congress,  excluding  the  right  of  the  next  of 
kin  to  recover  the  damages?  Third,  if  the 
minor  brothers  and  sister  were  next  of  kin 
under  the  act  of  Congress,  had  they  such 
dependency  on  the  deceased  as  gave  them 
any  right  to  recover  under  the  act? 

We  consider  the  questions  separately. 

1.  There  can  be  now  no  question  that  the 
mtt  of  Congresa  in  so  far  as  it  deals  with 
the  subjects  to  which  It  relates  is  paramount 
and  ezehisive.  It  is  therefore  not  dispu- 
table that  recovery  under  the  act  can  be 
had  alone  in  the  mode  and  by  and  for  the 
persons  or  class  of  persons  in  whose  favor 
•0  li.  ed. 


the  law  creates  and  bestows  a  right  of  ac- 
tion. Second  Employers'  Liability  Cases 
(Mondou  T.  New  York  N.  H.  k  H.  R.  Co.) 
223  U.  S.  1,  56  L.  ed.  327,  38  L.R.A.(N.S.) 
44,  82  Sup.  Ct  Rep.  160,  1  N.  a  C.  A.  875; 
Michigan  C.  R.  Co.  v.  Vreeland,  227  U.  S. 
69,  67  L.  ed.  417,  33  Sup.  Ct  Rep.  192, 
Ann.  Cas.  1914C,  176;  Taylor  v.  Taylor, 
232  U.  S.  363,  58  L.  ed.  638,  34  Sup.  Ct. 
Rep.  350,  6  N.  C.  C.  A.  436;  Seaboard  Air 
Line  R.  Co.  v.  Horton,  233  U.  S.  492,  601, 
58  L.  ed.  1062,  1068,  L.RJk.l915C,  1,  34 
Sup.  Ct  Rep.  635,  Ann.  Cas.  1915B,  475, 
8  N.  C.  C.  A.  834.  But  this  is  irrelevant, 
since  the  controversy  concerns  only  the 
meaning  of  the  act,  which  it  is  conceded, 
when  rightly  interpreted,  is  entitled  to  ex- 
clusive operation. 

Plainly  the  statute  contains  no  defini- 
tion of  who  are  to  constitute  the  next  of 
kin  to  whom  a  right  of  recovery  is  granted. 
But,  as  speaking  generally  under  our  dual 
system  of  government,  who  are  next  of  kin 
is  determined  by  the  legislation  of  the  vari- 
ous states  to  whose  authority  that  subject 
is  normally  committed,  it  would  seem  to  be 
clear  that  the  absence  of  a  definition  in  the 
act  of  Congress  [404]  plainly  indicates  the 
purpose  of  Congress  to  leave  the  determina- 
tion of  that  question  to  the  state  law.  But, 
it  is  urged,  as  next  of  kin  was  a  term  well 
known  at  common  law,  it  is  to  be  presumed 
that  the  words  were  used  as  having  their 
common-law  significance,  and  therefore  as 
excluding  all  persons  not  included  in  the 
term  under  the  common  law;  meaning,  of 
course,  the  law  of  England  as  it  existed  at 
the  time  of  the  separation  from  the  motht,r 
country.  Leaving  aside  the  misapplication 
of  the  rule  of  construction  relied  upon,  it 
is  obvious  that  the  contention  amounts  to 
saying  that  Congress,  by  the  mere  state- 
ment of  a  class,  that  is,  next  of  kin,  with- 
out defining  whom  the  class  embraces,  must 
be  assumed  to  have  overthrown  the  local 
law  of  the  states,  and  substituted  another 
law  for  it;  when  conceding  that  there  was 
power  in  Congress  to  do  so,  it  is  clear  that 
no  such  extreme  result  could  possibly  be 
attributed  to  the  act  of  Congress  without 
express  and  unambiguous  provisions  render- 
ing such  conclusion  necessary.  The  truth 
of  this  view  will  be  made  at  once  additional- 
ly apparent  by  considering  the  far-reaching 
consequence  of  the  proposition,  since,  if  it 
be  well  founded,  it  would  apply  equally  to 
the  other  requirements  of  the  statute,*-to 
the  provisions  as  to  the  surviving  widow, 
the  husband  and  children,  and  to  parents, 
thus,  for  the  purposes  of  the  enforcement 
of  the  act,  overthrowing  the  legislation  of 
the  states  on  subjects  of  the  most  intimate 
domestic  character,  and  substituting  for  it 
the  common  law  as  stereotyped  at  the  time 

7«5 


494-497 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oor.  TtMH, 


of  the  leparationi  The  argument  that  such 
result  must  have  been  intended,  since  it  is 
to  be  asirumed  that  Congress  contemplated 
imiformity,  that  is,  that  the  next  of  kin 
entitled  to  take  under  the  statute  should  be 
uniformly  applied  in  all  the  states,  after  all 
comes  to  saying  that  it  must  be  assumed 
that  Congress  intended  to  create  a  uniform- 
ity on  one  subject  by  producing  discord  and 
want  of  uniformity  as  to  many  others. 

But  we  need  go  no  further,  since  the  want 
of  merit  in  the  [405]  contention  is  fully 
demonstrated  by  authority.  In  Hutchinson 
Invest.  Go.  y.  Caldwell,  152  U.  S.  65,  38  L. 
ed.  356,  14  Sup.  Ct  Rep.  504,  the  matter 
under  consideration  was  §  2269,  Revised 
Statutes,  giving  to  the  heirs  of  a  deceased 
pre-emptor  who  had  died  before  completing 
his  entry  the  right  to  perfect  the  same,  the 
statute  providing:  "But  the  entry  in  such 
cases  shall  b^  made  in  favor  of  the  heirs  of 
the  deceased  pre-emptor,  and  a  patent  there- 
on shall  cause  the  title  to  inure  to  such 
heirs,  as  if  their  names  had  been  specially 
mentioned."  The  controversy  was  whether 
the  word  "heirs"  under  the  statute  should 
be  taken  in  its  common-law  meaning,  and 
therefore  not  to  give  a  right  to  complete 
the  entry  to  illegitimate  children  who  had 
been  recognized  by  their  father,  the  pre- 
emptor,  and  who  were  his  heirs  under  the 
"law  of  the  state  of  Kansas,  where  the  land 
was  stipulated  and  where  the  deceased  pre- 
emptor  was  domiciled.  The  court  said: 
"We  are  unable  to  concur  with  counsel  for 
plaintiflTs  in  error  that  the  intention  should 
be  ascribed  to  Congress  of  limiting  the 
words  'heirs  of  the  deceased  pre-emptor'  as 
used  in  the  section  to  persons  who  would 
be  heirs  at  common  law  (children  not  born 
in  lawful  matrimony  being,  therefore,  ex- 
cluded), rather  than  those  who  might  be 
such  according  to  the  lex  rei  Htae,  by  which, 
generally  speaking,  the  question  of  the  de- 
scent and  heirship  of  real  estate  is  exclusive- 
ly governed.  If  such  had  been  the  inten- 
tion, it  seems  clear  that  a  definition  of  the 
word  'heirs'  would  have  been  given,  so  as  to 
withdraw  patents  issued  under  this  section 
from  the  operation  of  the  settled  rule  upon 
the  subject.  .  .  .  But  it  is  contended  that 
the  word  'heirs'  was  used  in  its  oommon-law 
sense,  and  it  is  true  that  technical  legal 
terms  are  usually  taken,  in  the  absence  of 
a  countervailing  intent,  in  their  established 
eommon-law  signification;  but  that  consid- 
eration has  no  controlling  weight  in  the 
construction  of  this  statute.  Undoubtedly 
the  word  'heirs'  was  used  as  meaning,  as  at 
.oommon  law,  those  capable  of  inheriting,  but 
it  does  not  follow  that  the  question  as  [406] 
to  who  possessed  that  capability  was  there- 
by designed  to  be  determined  otherwise  than 
bjr  the  Jaw  of  the  state  which  was  both  the 

70e 


situs  of  the  land  and  the  domieil  of  the 
owner."  pp.  68,  60.  And  there  is  no 
ground  for  taking  this  case  out  of  the  rule 
thus  announced  upon  the  theory  that  the 
controversy  involved  the  title  to  real  estate, 
contracts  concerning  which  are  governed  by 
the  law  of  the  situs,  since  we  are  dealing 
here  with  the  subject  of  next  of  kin,  which, 
so  far  as  legislative  power  is  concerned,  un- 
der our  constitutional  system  of  govern- 
ment, is  inherently  local  and  to  ie  deter- 
mined by  the  rules  of  the  local  law.  And 
this  is  well  illustrated  by  Blagge  v.  Blach, 
162  U.  S.  439,  40  L.  ed.  1032,  16  Sup.  Ct 
Rep.  853,  which  involved  a  controversy  as 
to  the  distribution  of  French  spoliation 
claims  awarded  under  an  act  of  Congress 
providing  "that  in  all  cases  where  the  origi- 
nal sufferers  were  adjudicated  bankrupts 
the  awards  shall  be  made  on  behalf  of  the 
next  of  kin  instead  of  to  assignees  in  bank- 
ruptcy. ..."  [26  Stat,  at  L.  908, 
chap.  540.]  Without  going  into  detail  con- 
cerning the  controversy  in  that  case  it  suf- 
fices to  say  that  if  the  next  of  kin  entitled 
to  take  under  the  act  of  Congress  had  been 
ascertained  under  the  rule  of  the  common 
law,  there  would  have  been  one  result,  and 
if  determined  by  the  law  of  the  state  con- 
trolling distributions,  another  and  different 
result  followed.  Coming  to  determine  the 
significance  of  the  words  "next  of  kin"  from 
the  act  itself  and  its  context,  the  court  said : 
"And  we  are  of  opinion  that  Congress,  in 
order  to  reach  the  next  of  kin  of  the  origi- 
nal sufferers,  capable  of  ^king  at  the  time 
of  distribution,  on  principles  universally  ac- 
cepted as  most  just  and  equitable,  intended 
next  of  kin  according  to  the  statutes  of  dis- 
tribution of  the  respective  states  of  the  dom- 
ieil of  the  original  sufferers." 

2  and  3.  The  suggestion  rather  than  con- 
tention that  if  the  state  law  be  held  appli- 
cable to  determine  next  of  kin,  the  right 
should  have  been  recognized  to  seek  to  trace 
the  paternity  of  the  illegitimate  child,  so 
as  to  make  the  [407]  asserted  father 
the  parent  under  the  statute,  might  well 
be  disposed  of  by  saying  that  no  such 
contention  seems  to  have  been  urged  in 
either  of  the  courts  below.  But,  aside 
from  this,  the  entire  want  of  merit  of 
the  proposition  is  at  once  demonstrable 
from  a  twofold  point  of  view:  (a)  Be- 
cause it  was  necessarily  foreclosed  1^  the 
ruling  of  the  court  below  as  to  the  state 
law  concerning  the  next  of  kin  and  the  right 
of  the  brothers  and  sister  of  the  illegitimate 
child  to  inherit  from  him  solely  because  ci 
a  common  motherhood, — a  ruling  which  ex- 
cluded by  necessary  implication  the  right 
now  contended  for.  (b)  Because  aa  no  pro- 
vision, either  of  the  state  law  or  of  the 
common  law,  supporting  the  asserted  rights 

140  U.  8* 


1915. 


FARMERS'  4  M.  NAT.  BANK  t.  RIDQB  AVE.  BANK. 


497,  498 


is  rgf erred  to,  the  suggestion  may  be  taken 
as  simply  a  typical  illustration  of  the  con- 
Insioii  oi  thought  involved  in  the  main 
proposition  relied  upon  which  we  have  pre- 
viously adversely  disposed  of. 

In  so  far  as  it  is  suggested  that  there 
was  no  proof  tending  to  show  a  dq>endent 
relation  between  the  next  of  kin  who  were 
recognised  and  the  deceased,  so  as  to  justi- 
fy recovery  under  the  statute,  it  suiBoes  to 
say  that  it  was  expressly  foreclosed  by  the 
finding  of  the  jury,  sanctioned  by  the  trial 
court,  and  was  not  questioned  in  the  court 
below,  and  at  all  events  involves  but  a  con- 
troversy as  to  the  tendencies  of  all  the 
proof,  foreclosed  by  the  action  of  both 
courts,  which  we  would  not  reverse  without 
a  clear  conviction  of  error,  which,  after  an 
examination  of  the  record  on  the  subject, 
we  do  not  entertain.  Great  Northern  R. 
Oo.  V.  Knapp,  240  U.  B.  464,  ante,  745,  36 
Sup.  Ct  Rep.  399. 

Affirmed. 


[408]  FARMERS'  &  MECHANICS'  NA- 
TIONAL BANK  OF  PHILADELPHIA 

V. 

RIDOE  AVENUE  BANK  et  al. 

(See  S.  C.  Reporter's  ed.  498-509.) 

Bankruptcy  —  distribution  —  priorities 
—  partnership  and  individual  credi- 
tors. 

The  lack  of  any  partnership  assets 
and  of  any  solvent  partner  does  not  disen- 
title a  creditor  of  an  individual  partner  in 
a  bankrupt  firm  to  be  paid  out  of  ^at  part- 
ner's individual  estate  to  the  exclusion,  if 
necessary,  of  the  creditors  of  the  partner- 
ship estate,  upon  the  theory  that  such  con- 
ditions create  an  exception  to  the  general 
rule  for  the  distribution  of  partnen^ip 
and  individual  estates  in  iMinla'uptcy,  ex- 
pressed in  the  bankrupt  act  of  July  «1,  1898 
(80  Stat,  at  L.  548,  diap.  541,  Comp.  Stat. 
1913,  i  9589),  f  5,  i^.,  that  partnership 
creditors  shall,  in  the  first  instance,  be 
satisfied  from  the  net  proceeds  of  the  part- 
nership estate,  and  creditors  of  an  inoivid- 
ual  partner  from  the  net  proceeds  of  that 
partner's  individual  estate,  since  such  an  ex- 
ception is  not  compatible  with  the  other 
provisions  of  that  section  which  empower 
courts  of  bankrupt^  to  adjudge  a  partner- 
ship a  bankrupt^  and  to  administer  the  part- 
nership estate  so  far  as  possible  as  any 
other  estate,  and  authorize  them  to  permit 
the  proof  of  the  claim  of  the  partnership 
estate  against  the  individual  estates,  and 
viae  versa,  and  to  marshal  the  assets  of  ^e 

NoTBd — On  adjudication  of  bankruptcy  of 
member  of  firm  as  affecting  rights  of  firm 
creditors  against  firm  property — see  note  to 
American  Steel  A  Wire  Co.  v.  Coover,  80 
L.R.A.(N.S.)  787. 
•9  Ii.  ed. 


partnership  estate  and  individual  estates  so 
as  to  prevent  preferences  and  secure  the 
equitable  distribution  of  the  property  of  the 
several  estates. 

^^inuSJ's.  M^"*^*^''  ^  ^ ''  *- 

[No.  291.] 

Argued  March  15,  1916.    Decided  April  8, 

1916. 

ON  A  CERTIFICATE  from  the  United 
States  Circuit  Court  of  Appeals  for  the 
Third  Circuit,  presenting  the  question  as  to 
the  right  of  a  creditor  of  an  individual  part- 
ner in  a  bankrupt  firm  to  be  paid  out  of 
that  partner's  individual  estate  to  the  ex- 
clusion, if  necessary,  of  the  creditors  of  the 
partnership  estate.  Answered  in  the  af- 
firmative. 
The  facts  are  stated  in  the  opinion. 

Mr.  J.  Frank  Staley  argued  the  cause 
and  filed  a  brief  for  the  Farmers'  A  Me- 
chanics' National  Bank: 

Clause  "f  of  S  5  of  the  bankruptcy  act 
lays  down  a  positive  and  direct  rule  of  dis- 
tribution, and  requires  the  appropriation  of 
the  net  proceeds  of  the  individual  estate  of 
each  partner  to  the  payment  of  such  indi- 
vidual debts,  and  partnership  creditors  are 
entitled  to  share  therein  only  after  such  in- 
dividual debts  have  been  paid  in  fulL  The 
existence  or  nonexistence  of  firm  assets  for 
distribution  cannot  affect  or  vary  the  rule. 

Re  Janes,  67  C.  C.  A.  216,  133  Fed.  912; 
Euclid  Nat.  Bank  v.  Union  Trust  A  D.  Co. 
79  C.  C.  A.  485,  149  Fed.  975;  Mills  v. 
Fisher,  16  L.RJk.(N.S.)  656,  87  C.  C.  A.  77, 
159  Fed.  897;  Re  Wilcox,  94  Fed.  84;  Re 
Daniels,  110  Fed.  745;  Re  Hull,  224  Fed. 
796;  Re  Mills,  95  Fed.  269. 

Historically,  the  rule  of  distribution  pro- 
vided by  clause  "f"  is  the  re-enactment  of 
the  rule  in  equity  governing  the  adminis- 
tration of  the  estates  of  insolvent  partners, 
which  has  been  in  practice  from  the  begin- 
ning of  our  judicial  history. 

Murrin  v.  Neill,  8  How.  414,  12  L.  ed. 
1135. 

Mr.  Frank  R.  Sarldge  argued  the  cause 
and  filed  a  brief  for  the  Ridge  Avenue  Bank 
ct  al.: 

The  equitable  principle,  commonly  called 
an  exception  to  tiie  general  rule,  that  firm 
creditors  share  equally  with  separate 
creditors  of  the  partners  In  individual  as- 
sets, where  there  are  no  firm  assets  and  no 
living  solvent  partner,  is  supported  by  the 
best  authority. 

lindley,  Partn.  8th  ed.  p.  811,  note,  p. 
855;  Gilniore,  Partn.  pp.  438,  439;  Parsons, 
Partn.  2d  ed.  p.  500;  Collyer,  Partn.  6th  ed. 
p.  1459;  Story,  Partn.  7th  ed.  i  380.    See 

787 


601,  502 


SUPREME  COURT  OF  THE  UNITED  STATSa 


Oor.  Tbu, 


Also  LoveUnd,  Bankr.  1012,  S  273;  Bispham, 
Eq.  0th  ed.  §  517;  Rd  Carpenter,  7  Morrell, 
270;  Ex  parte  Taitt,  16  Yes.  Jr.  103. 

Under  the  bankruptcy  act  of  1867  the 
weight  of  authority,  following  the  English 
doctrine,  supported  this  principle  as  a  part 
of  the  long-established  equitable  method 
of  distribution,  and  allowed  firm  crediton 
to  participate  in  separate  assets  where  there 
was  no  partnership  fund  for  distribution; 
and  this,  regardless  of  whether  the  partner- 
ship was  in  bankruptcy  or  not.  This 
method  of  diBtribution,  the  courts  held, 
tended  to  produce  the  equality  which  it 
was  the  manifest  purpose  of  the  act  to 
secure.    Cases  supporting  it  are: 

Re  Jewctt,  1  Nat.  Bankr.  Reg.  401,  Fed. 
Cas.  No.  7,304;  Re  Knight,  2  Biss.  518,  8 
Nat.  Bankr.  Reg.  436,  Fed.  Cas.  No.  7,880; 
Re  Downing,  1  Dill.  33,  3  Nat.  Bankr.  Reg. 
748,  Fed.  Cas.  No.  4,044;  Re  Rice,  0  Nat. 
Bankr.  Reg.  373,  Fed.  Cas.  No.  11,750;  Re 
McEwen,  6  Biss.  204,  12  Nat.  Bankr.  Reg. 
11,  Fed.  Cas.  No.  8,783;  Re  Collier,  12 
Nat.  Bankr.  Reg.  266,  Fed.  Cas.  No.  3,002. 

Under  the  bankruptcy  act  of  1808,  al- 
though there  is  a  conflict  in  the  decisions 
among  circuit  courts  of  appeals  and  the 
lower  Federal  courts,  it  is  submitted  that 
the  courts  which  have  considered  the 
matter,  as  should  be  done,  in  the  light  of 
its  equitable  foundation  and  development, 
and  have  kept  in  mind  the  intent  and  pur- 
pose of  the  bankruptcy  act,  have  sustained 
the  exception  where  the  facts  were  substan- 
tially as  in  this  case. 

Re  Green,  116  Fed.  118,  8  Am.  Bankr. 
Rep.  553;  Conrader  v.  Cohen,  58  C.  C.  A. 
240, 121  Fed.  801,  affirming  118  Fed.  676;  Re 
Gray,  208  Fed.  050. 

The  courts  which  adopt  the  narrow  view, 
as  in  the  Wilcox  Case  and  those  following 
it,  disregard  not  only  the  equitable  princi- 
ples underlying  the  bankruptcy  act,  but 
also  the  fact  that  a  bankruptcy  court  is  one 
of  equity,  administering  the  law,  not  merely 
according  to  the  letter,  or  as  read  literally, 
but  according  to  its  spirit,  and  lose  sight  of 
the  fact  that  the  act  is  not  antagonistic  to, 
but  is  in  support  of,  the  equitable  principle 
aforesaid. 

Re  Kane,  11  Am.  Bankr.  Rep.  533. 

The  great  majority  of  the  states  of  the 
Union  sustain  the  exception  in  distributing 
insolvent  partnership  and  individual  estates 
in  equity.  Among  the  states  allowing  it 
are  Alabama  (Smith  v.  Mallory,  24  Ala. 
628) ;  New  Jersey  (Davis  v.  Howell,  33  N.  J. 
Eq.  72) ;  Missouri  (Level  v.  Farris,  24  Mo. 
App.  445;  Hundley  v.  Farris,  103  Mo.  78,  12 
L.RJk.  254,  23  Am.  St.  Rep.  863,  15  S.  W. 
812);  Rhode  Island  (Colwell  v.  Weybosset 
Nat  Bank,  16  R.  I.  288,  15  Atl.  80,  17  Atl. 
•913);   Wiaconam  (ThAyer  ▼.  Humphrey,  01 

res 


Wis.  276,  30  L.RJL  549,  51  Am«  St  Rep. 
887,  64  N.  W.  1007);  Maine  (Harris  ▼. 
Peabody,  73  Me.  262);  Ohio  (Rodgen  ▼. 
Meranda,  7  Ohio  St  170). 

The  so-called  exception  is  instained  by 
reason  and  equity. 

Gilmore,  Partn.  p.  430;  Re  Knight,  8  Nat 
Bankr.  R^.  436,  Fed.  Gas.  No.  7,880;  B« 
Green,  116  Fed.  118. 

Mr.  Chief  Justice  White  dellTered  the 
opinion  of  the  court: 

The  essential  facts  stated  in  the  certifi- 
cate of  the  court  below  are  these:  The  firm 
of  William  Qray  k  Sons  and  its  three  part- 
ners, William  J.  Gray,  Peter  Gray,  and 
Alexander  J.  Gray,  were  adjudged  bank- 
rupts. The  same  person  was  appointed 
trustee  of  the  four  estates.  It  resulted  from 
charging  separately  against  each  estate  the 
mere  necessary  and  unquestioned  expenses 
of  administration  that  there  was  nothing 
whatever  in  the  estate  either  of  the  partner- 
ship, of  that  of  William  J.  Gray  or  of  Peter 
Gray, — indeed  in  the  latter  there  was  noth- 
ing to  defray  the  expenses  of  administra- 
tion. As  to  the  estate  of  Alexander  J.  Gray, 
after  charging  the  expenses  of  administra- 
tion there  ren&ained  $1,507.26.  Creditors 
of  the  ffrm  proved  their  debts  against  it, 
the  Ridge  Avenue  Bank  of  Philadelphia  be- 
ing among  the  number,  while  only  one  cred- 
itor, the  Farmers'  k  Mechanics'  National 
Bank  of  Philadelphia,  proved  a  debt  against 
the  individual  estate  of  Alexander  J.  Gray, 
that  debt  exceeding  the  total  sum  of  the 
estate.  No  creditor  proved  against  the  in- 
dividual estate  of  William  J.  Gray  or  that 
of  Peter  [502]  Qray.  Under  these  condi- 
tions the  dispute  which  arose  was  whether 
the  estate  of  Alexander  J.  Gray  was  to  go 
wholly  to  the  Farmers'  &  Mechanics'  Na- 
tional Bank,  the  individual  creditor,  or  was 
to  be  proportionately  applied  to  the  indi- 
vidual and  firm  creditors  because  of  the 
absence  of  any  firm  estate  for  distribution. 
The  district  court  directed  the  fund  to  be 
distributed  between  the  Farmers'  4  Me- 
chanics' National  Bank,  the  creditor  of  the 
individual  estate,  and  the  creditors  of  the 
firm,  and  the  question  of  law  which  the 
court  below  propounds  to  enable  it  to  re- 
view this  action  of  the  district  court,  fcs  as 
follows: 

"When  a  partnership  as  such  is  luolysBty 
and  when  each  individual  member  is  also 
insolvent,  and  when  the  only  fund  for  dis- 
tribution is  produced  by  the  indiTldaal  es- 
tate of  one  member,  are  the  individual  cred- 
itors of  such  member  entitled  to  priority 
in  the  distribution  of  the  fundf* 

The  solution  of  this  question  primarily 
depends  upon  an  interpretation  of  subsec- 
tion f  of  §  5  of  the  bankrupt^  aot  of  1808» 

140  U.  B. 


1915. 


FARMBRS'  k  M.  NAT.  BANK  ▼.  RIDQE  AVE.  BANK. 


602^605 


•nd  leoondmrily  upon  a  consideration  of  all 
tlie  pertinent  subsections  of  the  section; 
indeed,  of  all  the  relevant  provisions  of  the 
context  of  the  act.  Subsection  f  is  as  fol- 
lows: 

"f"  The  net  proceeds  of  the  partnership 
property  shall  be  appropriated  to  the  pay- 
ment of  the  partnership  debts,  and  the  net 
proceeds  of  the  individual  estate  of  each 
partner  to  the  payment  of  his  individual 
debts.  Should  any  surplus  remain  of  the 
property  of  any  partner  after  paying  his 
individual  debts,  such  surplus  shall  be  add- 
«d  to  the  parUiership  assets  and  be  ap- 
plied to  the  payment  of  the  partnership 
debts.  Should  any  surplus  of  the  partner- 
ship property  remain  after  paying  the  part- 
nership debts,  such  surplus  shall  be  added 
to  the  assets  of  the  individual  partners  in 
the  proportion  of  their  respective  interests 
in  the  partnership."  [30  Stat,  at  L.  648, 
«hap.  541,  Comp.  Stat.  1913,  §  9589.] 

[503]  Let  us  first  sift  the  respective 
contentions  so  as  to  reach  the  ultimate 
proposition  required  to  be  decided.  In  the 
first  place,  in  favor  of  the  right  of  the 
•creditor  of  the  individual  partner  to  be 
paid,  under  the  facts  stated,  out  of  the 
individual  estate,  to  the  entire  exclusion, 
if  necessary,  of  the  creditors  of  the  part- 
nership estate,  it  is  urged  that  such  result 
is  so  unambiguously  commanded  by  the 
rule  of  distribution  established  by  the 
text  of  subsection  f  that  there  is  no  room 
for  oonstruction,  but  the  simple  duty 
arises  to  enforce  the  text,  as  to  do 
otherwise  would  amount  to  judicial  legis- 
lation. It  is  undoubted  that  this  proposi- 
tion is  supported  by  largely  the  greater 
weight  of  opinion  of  the  courts  of  the  Unit- 
ed States  in  enforcing  subsection  f.  Re 
Wilcox,  94  Fed.  84  (1899);  Re  Mills,  95 
Fed.  26d  (1899) ;  Re  Daniels,  110  Fed.  745 
(1901);  Re  Janes,  67  C.  C.  A.  216,  133 
Fed.  912  (1904),  reversing  128  Fed.  527; 
Re  Henderson,  142  Fed.  688  (1906);  £u- 
-did  Nat.  Bank  v.  Union  Trust  &  D.  Co.  79 
C.  C.  A.  485,  149  Fed.  976  (1906),  affirm- 
ing Re  Henderson,  supra;  Mills  v.  Fisher, 
16  L.R.A.(N.S.)  656,  87  C.  C.  A.  77,  159 
Fed.  897  (1908);  Re  Hull,  224  Fed.  796 
(1915). 

On  the  other  hand,  to  refute  the  proposi- 
tion and  to  avoid  the  effect  of  the  authori- 
ties sustaining  it  just  referred  to  three^  con- 
tentions are  relied  upon,  (a)  It  is  said 
the  absence  of  ambiguity  in  the  general  rule 
as  stated  in  subsection  f  is  conceded  and  the 
aoondness  of  the  authorities  cited  recog- 
nising that  faet  is  not  disputed,  but  these 
concessions,  it  is  declared,  are  negligible, 
since  the  fact  that  there  were  no- partner- 
ship assets  and  no  solvent  partner  causes 
this  case  to  be  an  sxception  to  the  rule  sx- 


pressed  in  subsection  f,  hence  not  governed 
by  it,  and  therefore  makes  it  clear  that  the 
authorities  cited  are  inapposite  because  they 
mistakenly  applied  the  general  rule  to  an 
exceptional  case  which  that  rule  did  not 
govern,  (b)  That  this  is  demonstrated  first 
by  the  fact  that  the  general  rule  [604] 
was  as  unambiguously  expressed  in  the 
previous  bankruptcy  acts  (§  14  of  the  act  of 
1841  [6  Stat,  at  L.  448,  chap.  9]  and  §  36 
of  the  act  of  1867  [14  Stat,  at  L.  534,  chi^p. 
176] ) ,  and  yet,  under  those  acts,  the  excep- 
tion stated,  which  unquestionably  governed 
in  bankruptcy  in  England,  where  the  gener- 
al rule  was  the  same,  was  also  held  to  be 
controlling  by  judicial  decisions  in  this 
country.  This  being  true,  the  argument 
insists  the  inference  is  that  Congress,  in 
adopting  the  act  1898  without  any  expres- 
sion excluding  the  continued  operation  of 
the  exception  which  prevailed  imder  the  pre- 
vious acts,  must  be  considered  as  having 
impliedly  recognized  the  continued  force  of 
that  exception;  that  is,  must  be  held  to 
have  substantially  made  that  exception  a 
part  of  the  rule  established  under  the  act 
of  1898.  And  this  view,  it  is  insisted,  is 
expressly  sustained  by  the  following  decid- 
ed cases  imder  the  act  of  1898:  Re  Green, 
116  Fed.  118  (1902);  Re  Conrader,  118 
Fed.  676  (1902);  Conrader  v.  Cohen,  58 
C.  C.  A.  249,  121  Fed.  801  (1903),  affirming 
Re  Conrader,  supra;  Re  Janes,  128  Fed. 
527  (1904),  reversed  in  67  C.  C.  A.  216, 
133  Fed.  912;  and  by  the  present  case.  Re 
Gray,  208  Fed.  969  (1913),  and  is  in  rea- 
son supported  by  the  adjudged  cases  which 
upheld  the  asserted  exception  under  the 
prior  acts. 

(c)  That  even  if  this  be  held  to  be  not 
the  case,  as  there  is  nothing  in  the  act  of 
1898  repudiating  the  application  and  exist- 
ence of  the  exception  which  prevailed  un- 
der the  previous  acts,  therefore,  as  a  ques- 
tion of  original  investigation,  that  excep- 
tion should  be  held  to  be  equally  applicable 
and  controlling  under  the  act  now  in  force 
as  it  was  imder  the  previous  bankruptcy 
acts,  since  the  general  rule  was  as  clearly 
stated  in  those  acts  as  it  is  in  this. 

A  twofold  reply  is  made  to  these  conten- 
tions: First,  although  admitting  that  the 
alleged  exception  prevailed  in  England,  it 
is  denied  that  it  was  authoritatively  rec- 
ognized in  this  country  under  the  previous 
acts,  and  second,  by  insisting  that  even  if 
it  was,  it  is  not  applicable  under  [505]  the 
act  of  1898  because  the  terms  of  that  act 
make  manifest  that  it  was  drawn  for  the 
purpose  of  preventing  the  method  of  dis- 
tribution provided  in  subsection  f  from  be- 
ing subject  to  the  exception  relied  upon. 

As  we  are  of  opinion  that  it  is  to  be  con- 
'  ceded  that  if,  under  the  prior  acts,  it  was 
49  7  ft 


006-607 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Ooi.  Temm, 


fettled  authoritatiTely  and  oonelusiYely  that 
the  exception  relied  upon  obtained  and  waa 
fully  recognized  in  practice,  it  would  follow 
that  the  enactment  of  the  eame  general 
rule  without  anything  indicating  a  depart- 
ure from  the  exception  would  justify  the 
conduaion  that  it  waa  the  legislative  in- 
tent to  continue  the  exception,  it  reeulta 
that,  in  order  to  answer  the  question  pro- 
pounded, the  whole  case  comes  to  two  in- 
quiries: Was  there  such  an  authoritative 
exception  to  the  general  rule  under  the  pri- 
or laws,  and,  if  not,  was  the  continued  ex- 
istence of  such  exception  compatible  with 
the  rule  of  distribution  established  by  sub- 
section f  of  the  present  act  as  considered 
in  the  light  of  the  context  of  f  6  of  which 
it  forms  a  part,  and  of  the  scope  and  opera- 
tion of  the  act  of  1898? 

1.  Undoubtedly  in  Englsnd,  with  the  de- 
velopment of  the  general  rule  for  the  dis- 
tribution of  partnership  and  individual 
estates  in  bankruptcy  as  now  formulated  in 
subsection  f  of  the  present  bankruptcy  act, 
there  also  was  evolved  in  practice  the  so- 
called  exception  here  relied  upon  which 
was  applicsble  in  cases  where  there  was  no 
partnership  estate  to  distribute  and  no 
solvent  partner.  We  content  ourselves  with 
this  statement,  and  do  not  refer  to  the  ad- 
judged cases  in  England  establishing  the 
rule,  and  those  from  which  the  alleged  ex- 
ception came  to  be  evolved,  since  they  were 
quite  fully  referred  to  in  Murrill  v.  Neill,  8 
How.  414,  12  L.  ed.  1135,  and  will  all  be 
found  stated  in  the  fullest  degree  in  the 
opinion  of  Lowell,  Judge,  in  Re  Wilcox,  94 
Fed.  84.  It  is  also  true  that  this  asserted 
exception  came  to  be  recognized  and  applied 
in  adjudged  cases  in  this  country  under  the 
prior  bankruptcy  acts.  [606]  The  cases  on 
this  subject  again  are  not  referred  to  be- 
cause they  will  also  be  found  stated 
in  the  opinion  in  the  Wilcox  Case.  But, 
while  this  is  true,  we  think  there  is 
no  ground  for  saying  that  the  asserted 
exception  had  become  so  authoritative- 
ly established  prior  to  the  adoption  of 
the  present  law  as  to  cause  it  to  be  in  effect 
a  part  of  the  rule,  since  on  the  contrary, 
as  will  be  seen  by  the  references  already 
made,  its  applicability  was  constantly  dis- 
puted and  its  enforcement  challenged. 
Nothing  more  is  required  to  demonstrate 
this  statement  than  a  recurrence  to  Mur- 
rill V.  Neill,  supra,  since  in  the  opinion  in 
that  case,  after  considering  the  general  rule 
of  distribution  as  now  stated  in  subsection 
f,  and  the  alleged  exception  here  under  re- 
idew,  it  was  said:  '^t  may  be  proper  in 
this  place  to  mention  the  two  departures 
permitted  by  the  'court  of  ehaneery  in  Eng- 
land  from  the  general  rule  pursued  by  that 
oourt»  whitth  departures  were  adverted  to 
770 


in  a  previous  part  of  this  opinion."  After 
then  stating  the  first  exception,  the  one  now 
in  question  was  referred  to  as  follows: 
"The  second  is  that  in  which  there  are  no 
joint  effects  at  all.  In  this  last  instance  it 
is  said  that  the  joint  creditors  may  come  in 
for  dividends  pari  pa99u  on  the  separata 
effects;  though  if  there  be  Joint  effects, 
though  of  the  smallest  possible  amount,  thia 
privilege  would  not  be  allowed.  These  ex- 
ceptions it  seems  difficult  to  reconcile  with 
the  reason  or  equity  on  which  the  general 
rule  is  founded;  they  are  but  exceptional 
however,  and  cannot  impair  that  rule. 
They  do  not,  for  aught  we  have  seen,  appear 
to  have  been  recognized  by  the  courts  of  thia 
country.**    p.  427. 

2.  Although  the  alleged  exception  waa 
thi^refore  clearly  not  so  authoritatively  es- 
tablished as  to  cauie  it  to  become  a  part 
of  the  rule  by  the  enactment  of  the  bank- 
ruptcy act  of  1898,  it  yet  remains  to  con- 
sider whether  its  existence  is  compatible 
with  that  act;  that  is,  whether  to  permit 
it  would  be  in  accord  with  the  rights  which 
the  act  gave  and  the  duty  which  it  imposed 
to  enforce  them.  In  the  first  [607]  place 
it  is  to  be  observed  that  the  act  of  1898  in 
the  opening  subsections  of  §  5  confers  the 
power  on  courts  of  bankruptcy  to  adjudge  a 
partnership  a  bankrupt  and  to  administer 
the  partnership  estate  so  far  as  possible  aa 
any  other  estate, — an  authority  not  con- 
ferred by  the  previous  bankruptcy  acts.  In 
the  second  place,  subsection  f,  establishing 
the  rule  of  distribution,  is  immediately  fol- 
lowed by  subsection  g,  which  provides  aa 
follows: 

"The  court  may  permit  the  proof  of  the 
claim  of  the  partnership  estate  against  the 
individual  estates,  and  vice  verta,  and  may 
marshal  the  assets  of  the  partnership  estato 
and  individual  estates  so  as  to  prevent  pref- 
erences and  secure  the  equitable  distribu- 
tion of  the  property  of  the  several  eetatea.'* 

The  legislative  mind  must  therefore  havo 
been  immediately  and  directly  concerned 
with  the  enforcement  of  the  rule  of  distri- 
bution expressed  in  subsection  f,  since  that 
subject  was  thus  immediately  considered 
and  provided  for.  And  the  significance  of 
this  provision  and  its  effect  upon  the  con- 
tinued existence  of  the  supposed  authority 
to  depart  from  the  rule  expressly  provided 
for  by  permitting  the  alleged  exception  now 
relied  upon  will  become  quite  dear  by  the 
briefest  possible  outline  of  some  of  the  prin- 
cipal considerations  involved  in  the  origin 
and  development  of  that  assumed  exception. 

As  pointed  out  in  the  opinion  in  Murrill 
V.  Neill,  supra,  and  as  fully  shown  by  tha 
raview  of  the  English  cases  so  carefully 
stated  in  Re  Wilcox,  supra,  to  which  wa 
again  refer,  that  origin  and  davelopmsnt 

S4«  V.  M. 


1916. 


ABMOUB  &  00.  ▼.  NOBTH  DAKOTA. 


607-610 


WM  thlat  It  eame  to  pais  in  Bngland  at 
an  anetont  data  that  with  the  eatabliahment 
of  tha  rula  of  distribution  substantially  as 
formulated  in  subsection  f,  it  was  recog- 
nized that  a  creditor  of  the  joint  or  partner- 
ship estate  would  be  permitted,  if  no  ob- 
jection was  made,  to  prove  his  claim  in  a 
bankruptcy  proceeding  against  an  individu- 
al partner.  This  resulted  from  the  fact  that 
the  power  of  the  court  over  the  [508]  sep- 
arate or  individual  estate  extended  not  only 
to  the  individual  assets,  but  to  the  share  of 
the  individual  bankrupt  in  the  partnership 
assets,  the  court  having  power  upon  appli- 
cation, by  ordering  separate  accounts  to  be 
kept,  to  protect  the  rights  of  all  and  secure 
a  distribution  conformably  to  the  settled 
rule.  While  there  is  obscurity  and  conse- 
quent'contrariety  of  opinion  as  to  the  rea- 
son upon  which  it  was  placed,  it  no  doubt 
came  to  pass  in  a  further  state  of  evolution 
that  both  joint  and  separate  creditors  were 
allowed  to  prove  their  claims  in  bankruptcy 
against  the  separate  estate,  the  practice  of 
protecting  the  rights  of  each  by  an  order 
requiring  separate  accounts  disappearing 
and  the  creditors  being  relegated  for  the  ac- 
complishment of  that  result  to  a  bill  in 
equity  to  enforce  and  secure  the  distribu- 
tion as  provided  in  the  rule.  It  is  further 
certain  that  as  in  every  case  where  an  order 
was  made  allowing  the  joint  creditor  to 
prove  against  the  separate  estate  of  a  part- 
ner such  right  would  be  frustrated  by  chan- 
cery proceedings,  it  came  to  pass  that  joint 
creditors  were  only  allowed  to  prove  against 
the  separate  estate  upon  condition  that  dis- 
tribution would  be  made  conformably  with 
the  general  rule  in  every  case  where  that 
course  could  be  compelled  by  chancery  pro- 
ceedings. As  it  came  further,  however,  to 
be  appreciated  that  chancery  could  not  af- 
ford relief  in  a  case  where  there  was  no 
joint  estate  and  no  solvent  partner,  it  re- 
sulted that  in  such  a  case  the  limitation  as 
to  distribution  was  treated  as  not  applica- 
ble, and  therefore  the  alleged  exception  to 
the  general  rule  arose, — an  exception  which, 
as  pointd  out  by  this  court  in  Murrill  v. 
Neill,  supra,  was  but  a  failure  to  give  effect 
to  the  rule,  not  because  of  the  absence  of 
right  of  the  creditors  to  enjoy  its  benefit, 
but  alone  because  the  judicial  power  had 
at  its  command  no  remedy  which  it  could 
apply  to  give  effect  to  the  legal  right  whidi 
undoubtedly  existed. 

When  the  origin  and  source  of  the  so- 
called  exception  is  thus  appreciated  and  the 
comprehensive  delegation  of  [500]  author- 
ity for  the  first  time  conferred  by  subsec- 
tion g  iB  considered,  it  would  seem  to  be 
fairly  inferable  that  at  the  very  moment  of 
the  re-expression  of  the  ancient  rule  in  sub- 
section f  in  terms  free  from  ambiguity,  the 
•0  Ii.  ed. 


means  of  preventing  its  frustration  in  the 
guise  of  an  exception  or  otherwise  because 
of  an  assumed  absence  of  judicial  remedy 
to  enforce  the  rule  was  provided  for.  And 
this  being  true,  it  of  course  results  that  no 
possible  reason  can  be  found  for  refusing  to 
give  effect  to  the  law  by  permitting  the  suc- 
cessful operation  of  the  so-called  exception 
now  relied  upon.  In  fact,  irrespective  of  the 
considerations  derived  from  the  origin  of 
such  assumed  exception,  to  which  we  have 
referred,  when  the  positive  commands  of  the 
statute  are  considered  and  the  new  power 
conferred  by  the  act  as  to  partnership 
estates  is  borne  in  mind,  we  see  no  escape 
from  the  conclusion  that  the  powers  con- 
ferred by  subsection  g  are  coincident  with 
the  duties  which  the  act  imposes,  and  amply 
efficient  to  secure  and  give  effect  to  their 
performance.  This,  indeed,  was  the  view 
hitherto  indicated  in  Miller  v.  New  Orleans 
Acid  A  Fertiliser  Co.  211  U.  8.  406,  68  L. 
ed.  300,  20  Sup.  Ct  Rep.  176,  where,  after 
quoting  subsection  f  of  the  act,  it  was  said: 

"To  enforce  these  provisions  the  act  com- 
pels (subdiv.  d)  the  keeping  of  separate  ac- 
counts of  the  partnership  property  and  of 
the  property  belonging  to  the  individual 
partners;  the  payment  (subdiv.  e)  of  the 
bankrupt  expenses  as  to  the  partnership 
and  as  to  the  individual  property  propor- 
tionately; and  permits  (subdiv.  g)  the  proof 
of  the  claim  of  the  partnership  estate 
against  the  individual  estate,  and  iHce  verso, 
and  directs  the  marshaling  of  the  assets  of 
the  partnership  estate  and  the  individual 
estates  'so  as  to  prevent  preferences  and  se- 
cure the  equitable  distribution  of  the  prop- 
erty of  the  several  estates/"    p.  604. 

It  follows  that  the  question  propounded 
will  be  answered,  Yes. 

And  it  is  so  ordered. 


[510]    ARMOUR  k   COMPANY,   Plff.   in 

Err., 
v. 

STATE  OP  NORTH  DAKOTA. 
(See  S.  C.  Reporter's  ed.  610-617.) 

ConstltiiHonal  law  —  due  process  of  law 
—  regulating  net  weight  of  retail 
packages. 

1.  Prohibiting  the  sale  of  lard  other- 
wise than  in  bulk  unless  put  up  in  1,  3,  or 

NoTK. — As  to  what  constitutes  due  process 
of  law,  generally — see  notes  to  People  v. 
CKBrien,  2  L.R.A.  266;  Kuntz  v.  Sumption,. 
2  LJUL.  666;  Re  Oannon,  6  L.R.A.  360; 
Ulman  ▼.  Baltimore,  11  L.RJk.  224;  Oilman 
V.  Tucker,  13  L.R.A.  304;  Pearson  v.  Yew* 
dall,  24  L.  ed.  U.  S.  430;  and  Wilson  v. 
North  Carolina,  42  L.  ed.  U.  S.  866. 

Aa  to  the  validity  of  class  legislation^ 

771 


SUPRBME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


5-poiiiid  packagesy  net  weight,  or  some  mul- 
tiple of  these  numbers,  as  is  done  by  N. 
D.  Laws  1911,  p.  355,  does  not  render  the 
statute  repugnant  to  U.  S.  Const.,  14th 
Amend.,  as  denying  due  process  of  law. 
[For  other  cases,  see  Constitational  Law,  IV. 
b,  7,  in  Direst  Sap.  Ct.  1908.] 

Constitutional  law  — equal  protection  of 
the  laws  —  regulatlni;  net  wel^rlit  of 
packages  of  lard. 

2.  Singling  out  lard  from  other  food 
nroducts,  as  is  done  by  the  prohibition  of 
N.  D.  Laws  1911,  p.  355,  against  the  sale 
of  lard  otherwise  tnan  in  bulk  unless  put 
up  in  1,  3,  or  5-pound  packages,  net  weight, 
or  some  multiple  of  these  numbers,  does  not 
make  the  statute  repugnant  to  U.  S.  Const., 
14th  Amend.,  as  denying  the  equal  protec- 
tion of  the  laws. 

[Fer  other  cases,  see  Constitutional  Law,  IV. 
b,  7,  in  Digest  Sup.  Ct.  1908.] 

Commerce  —  state  regulation  —  retail 
sales. 

3.  As  applied  to  retail  sales  not  in  the 

package  of  importation,  the  oonuneros  clause 

of  the  Federal  Constitution  is  not  violated 

by  the  prohibition  of  N.  D.  Laws  1911,  p. 

855,  against  the  sale  of  lard  otherwise  than 

in  bulk  unless  put  up  in  1,  3,  or  5-pound 

packages,  net  weight,  or  some  multiple  of 

these  numbers. 

[For  other  cases,  see  Commerce,  IV.  b,  in 
Digest  Sup.  Ct.  1908.] 

Commerce  —  conflicting  state  and  Fed- 
eral regulations  —  net  weii^t  of  re- 
tall  packages. 

4.  There  is  no  repugnancy  between  the 
pure  food  and  drugs  act  of  June  30,  1906 
(34  Stat,  at  L.  768,  chap.  3915,  Comp.  Stat. 
1913,  S  8717),  which  is  directed  against  the 
adulteration  and  misbranding  of  articles  of 
food  transported  in  intersUite  commerce, 
and  the  prohibition  of  N.  D.  Laws  1911,  p. 
355,  against  retail  sales  of  lard  otherwise 
than  in  bulk,  unless  put  up  in  1,  3,  or  6- 

Ssund  packages,  net  weight,  or  some  mul- 
ple  of  these  numbers. 

[No.  258.] 

Argued  March  3  and  6, 1916.    Decided  April 

3,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  North  Dakota  to  review  a  Judg- 
ment which  affirmed  a  conviction  in  the  Dis- 
trict Court  of  Cass  County,  in  that  state, 
for  selling  lard  not  put  up  in  1,  3,  or  5- 


pound  packages,  net  weight,  or  some  mul« 
tiple  of  these  numbers.    Afflbrmed. 

See  came  case  below,  27  N.  D.  177»  L.RJL 
— ,  — ,  145  N.  W.  1033. 

The  facts  are  stated  in  the  opinion. 

Mr.  N.  C.  Young  argued  the  cause,  and, 
with  Messrs.  J.  8,  Watscm,  Abram  S.  Strai- 
ton,  and  Alfred  R.  Urion,  filed  a  brief  for 
plain  tifi^  in  error.: 

This  statute  arbitrarily  and  without  rea- 
sonable ground  therefor  singles  out  lard 
from  all  food  products,  and  is  therefore 
void. 

Connolly  t.  Union  Sewer  Pipe  Co.  184 
U.  S.  540,  558-561,  46  L.  ed.  679,  689,  690, 
22  Sup.  Ct.  Rep.  431. 

This  statute  is  arbitrary  and  has  no  rea- 
sonable relation  to  a  purpose  which  it  is 
competent  for  the  government  to  effect. 

Chicago,  B.  &  Q.  R.  Co.  v.  McGuire,  219 
U.  S.  563,  55  L.  ed.  337,  31  Sup.  Ct.  Rep. 
259. 

As  applied  to  the  sale  of  the  lard  in  ques- 
tion, this  statute  conflicts  with  the  labeling 
provision  of  the  Federal  food  and  drug  act 
and  the  commerce  clause  of  the  Federal 
Constitution. 

Savage  v.  Jones,  225  U.  S.  501,  56  L.  ed. 
1182,  32  Sup.  Ct.  Rep.  715;  McDermott  v. 
Wisconsin,  228  U.  S.  115,  57  L.  ed.  754,  47 
LJRJl.(N.S.)  984,  33  Sup.  Ct.  Rep.  431,  Ann. 
Cas.  1915A,  39;  Com  Products  Ref.  Co.  v. 
Wei^e,  221  Fed.  988. 

Mr.  Andrew  Miller  argued  the  cause, 
and,  with  Mr.  Henry  J.  Linde»  Attorney 
General  of  North  Dakota,  and  Messrs.  Fran- 
cis J.  Murphy,  H.  R.  Bitidng,  Alfred  Zuger, 
and  B.  F.  Tillotson,  filed  a  brief  for  defend- 
ant in  error: 

One  who  invites  the  confidence  of  the 
public  may  be  compelled  to  submit  to  such 
regulations  as  will  guard  the  public  as  far 
as  possible  against  misapprehension  and 
possible  imposition  and  fraud. 

Freund,  PoL  Power.  fS  274,  275;  Tiede- 
man,  Pol.  Power,  §  89;  People  v.  Wagner, 
86  Mich.  594, 13  LJEtA.  286,  24  Am.  St.  Rep. 
141,  49  N.  W.  609;  McLean  v.  Arkansas,  211 
U.  S.  539,  53  L.  ed.  315,  29  Sup.  Ct.  Rep.  206. 

Where  the  legislative  action  is  arbitrary 
and  has  no  reasonable  relation  to  a  purpose 


rierally, — see  notes  to  State  v.  Goodwill, 
L.RJL.  621;  and  State  v.  Loomis,  21 
L.RJL  789. 

As  to  constitutional  equality  of  privileges, 
immunities,  and  protection,  generally — see 
note  to  Louisville  Safety  VaiUt  k  T.  Co.  v. 
Louisville  ft  N.  R.  Co.  14  L.R.A.  579. 

On  state  regulation  of  interstate  or  for- 
eign commerce — see  notes  to  Norfolk  ft  W. 
R.  Co.'  V.  Com.  13  L.R.A.  107,  and  Gloucester 
Ferry  Co.  ▼.  Pennsylvania,  29  L.  ed.  U.  S. 
158. 

On  the  power  to  prescribe  the  manner  or 
T7t 


method  of  determining  quantity  or  amount 
of  conmiodity — see  note  to  Ex  parte  Steube, 
L.R.A.1916E,  — . 

On  validity  of  regulations  as  to  weight  of 
loaf  of  bread — see  note  to  Chicago  v. 
Schmidinger,   44   L.RJL(NJ3.)    632. 

As  to  what  constitutes  an  original  or  un- 
broken package — see  note  to  State  v.  Maire, 
39  L.R.A.(N.S.)  1051. 

As  to  state  regulations  of  interstate  com- 
merce as  affected  by  Federal  pure  food 
laws — see  note  to  McDermott  ▼.  State,  47 
L.R.A.(NJ3.)  984. 

S40  V.  8. 


1915. 


ABMOUR  &  00.  ▼.  NORTH  DAKOTA. 


§11 


which  it  is  eompetc-'t  for  the  government 
to  effect,  the  legislature  transcends  the  lim- 
its of  its  power  in  interfering  with  the  lib- 
erty of  contract;  but  where  there  is  reason- 
able relation  to  an  object  within  the  gov- 
ernmental authority,  the  exercise  of  the 
legislative  inquiry  is  not  subject  to  judi- 
cial review. 

Chicago,  B.  A,  Q.  R.  Co.  v.  McQuire,  219 
U.  S.  549,  55  L.  ed.  328,  31  Sup.  Ot.  Rep. 
259.  See  also  McLean  v.  Arkansas,  211  U. 
S.  539,  53  L.  ed.  315,  29  Sup.  Ct.  Rep.  206; 
Sinking  Fund  Cases,  99  U.  S.  718,  25  L.  ed. 
501. 

For  the  purpose  of  preventing  fraud  and 
imposition  upon  consumers,  made  possible 
by  ignorance  or  thoughtlessness,  it  is  with- 
in the  police  power  to  standardize  the  pack- 
age in  which  a  commodity  is  sold,  when  it 
is  not  sold  in  bulk,  and  the  price  agreed 
upon  according  to  actual  weight  or  meas- 
ure. 

State  V.  Cooperative  Store  Co.  123  Tenn. 
399,  131  8.  W.  867,  Ann.  Cas.  1912C,  248; 
State  V.  Aslesen,  50  Minn.  5,  36  Am.  St. 
Hep.  620,  52  N.  W.  21U);  Turner  v.  Mary- 
land, 107  U.  8.  38,  39,  43,  27  L.  ed.  370-372, 
S    Sup.    Ct.    Rep.    44;    Wheeler,    v.    Rus- 
aell,   17   Mass.  258;    Eaton   v.  Kegan,  114 
Ifass.  433;  State  v.  Pittsburg  A  S.  Coal  Co. 
41  La.  Ann.  465,  6  So.  220, 156  U.  S.  590,  39 
Xf.  ed.  544,  6  Inters.  Com.  Rep.  18,  15  Sup. 
Ct.  Rep.  459;  Levy  v.  Gowdy,  2  Allen,  320; 
«Janie8  v.  Josselyn,  65  Me.  138;  Richmond  v. 
Fo88,  77  Me.  590,  1  Atl.  830;  Williams  v. 
Tappan,  23  N.  H.  385;  McLean  v.  State,  81 
Ark.  304,  126  Am.  St.  Rep.  1037,  98  S.  W. 
729,  11  Ann.  Cas,  72,  211  U.  S.  539,  53  L.  ed. 
316,  29  Sup.  Ct.  Rep.  206;  Gibbons  v.  Ogden, 
9  Wheat.  1,  6  L.  ed.  23;  Coul  v.  McArthur, 
162    Mass.  522,  25  N.  £.   836;    Mobile  v. 
Yuille,  3  Ala.  137,  36  Am.  Dec.  441;  People 
V.  Wagner,  86  Mich.  594,  13  L.R.A.  286,  24 
Am.  St.  Rep.  141,  49  N.  W.  609;  Chicago 
V.  Schmidinger,  243  Dl.  167,  44  L.RJ^.(N.S.) 
632,  90  N.  E.  369,  17  Ann.  Cas.  614,  245 
m.  317,  92  N.  E.  244,  226  U.  S.  578,  57  L. 
ed.  364,  33   Sup.  Ct.  Rep.  182,  Ann.  Cas. 
1914B,  284;  State  v.  McCool,  83  Kan.  428, 
111  Pac.  477;  People  v.  Girard,  145  N.  Y. 
105,  45  Am.  St.  Rep.  595,  39  N.  E.  823; 
John  P.  Squire  A  Co.  v.  Tellier,  185  Mass. 
18,  102  Am.  St.  Rep.  322,  69  N.  E.  312; 
State  V.  Campbell,  64  N.  H.  402,  10  Am. 
St.  Rep.  419,  13  Atl.  585;  Neas  v.  Borches, 
109  Tenn.  398,  97  Am.  St.  Rep.  851,  71  S. 
W.  60;  People  v.  Luhrs,  195  N.  Y.  377,  25 
LJLA.(N.S.)  473,  89  N.  E.  171;  Lemieux  v. 
Young,  211  U.  S.  489,  53  L.  ed.  295,  29  Sup. 
Ct.   Rep.   174;    State  v.   Fourcade,  45  La. 
Ann.  717,  40  Aul  St.  Rep.  249,  13  So.  187 ; 
Butler  V.  Chambers,  36  Minn.  69,  1  Am.  St. 
Rep.  638,  30  N.  W.  308;  State,  Waterbui^, 
Prosecutor,  v.  Newton,  50  N.  J.  L.  534,  2 
•0  li.  ed. 


Inters.  Com.  Rep.  63,  14  Atl.  604;  Frenad^ 
Pol.  Power,  §§  272,  275;  Tiedeman,  Limita- 
tion of  Pol.  Power,  §  89,  p.  207. 

So  far  as  the  actual  handling,  sale,  and 
distribution  of  Armour  A  Company's  good% 
including  lard,  in  this  state,  is  concerned, 
it  is  the  same  as  if  the  packing  plant  were 
located  and  the  products  put  up  in  North 
Dakota.  As  to  the  particular  pail  involved 
in  this  case,  for  the  sale  of  which  the  plain- 
tiff in  error  was  convicted,  the  evidence  is 
undisputed  that  it  was  found  in  its  ware- 
house at  Fargo  in  a  crate,  and  that  the 
crate,  was  broken  by  the  agent  of  plaintiff 
in  error,  and  the  pail  sold.  Hence,  the 
plaintiff  in  error  cannot  successfully  con- 
tend that  it  was  convicted  without  due 
process  of  law,  and  in  the  absence  of  a 
statute  authorizing  the  conviction. 

Austin  V.  Tennessee,  179  U.  S.  343,  46 
L.  ed.  224,  21  Sup.  Ct.  Rep.  132;  Guckea- 
heimer  v.  Sellers,  81  Fed.  997;  Re  Harmon, 
43  Fed.  372;  Cook  v.  Marshall  County,  196 
U.  S.  261,  49  L.  ed.  471,  25  Sup.  Ot.  Rep. 
233. 

The  legislature  of  the  state  of  North  Da- 
kota, being  familiar  with  the  lard  trade 
for  many  years,  and  acquainted  with  local 
conditions,  was  best  able  to  judge  of  the 
necessity  for  the  statute  in  question.  The 
fact  that  the  courts  may  not  agree  with 
the  legislature  in  its  views  as  to  the  neoes- 
city  or  propriety  of  this  legislation  consti- 
tutes no  ground  for  judicial  interferenos^ 
unless  the  act  is  clearly  in  violation  of  con- 
stitutional guaranties  of  equal  protection; 
and  this  statute  is  not  so  clearly  and  un- 
mistakably in  excess  of  the  power  of  the 
legislature  that  it  should  be  held  for 
naught. 

American  Sugar  Ref.  Co.  v.  Louisiana, 
179  U.  S.  89,  45  L.  ed.  102,  21  Sup.  Ct.  Rep. 
43;  Powell  v.  Pennsylvania,  127  U.  S.  678, 
32  L.  ed.  253,  8  Sup.  Ct.  Rep.  992,  1257; 
Sinking  Fund  Cases,  99  U.  S.  718,  727,  26 
L.  ed.  601,  504;  Chicago,  B.  4t  Q.  R.  Co.  v. 
McGuire,  219  U.  8.  563,  55  L.  ed.  887,  SI 
Sup.  Ct.  Rep.  259. 

[611]  Mr.  Justice  McKenna  delivered 
the  opinion  of  the  court: 

A  statute  of  the  state  requires  (§1)  that 
"every  article  of  food  or  beverage  as  de- 
fined in  the  statutes  of  this  state  shall  be 
sold  by  weight,  measure  or  numerical  count 
and  as  now  generally  recognized  by  trade 
custom,  and  shall  be  labeled  in  accordance 
with  the  provisions  of  the  food  and  bever- 
age laws  of  this  state.     .    .     . 

"Section  2  (Weight  of  Lard).  Bvery  lot 
of  lard  compound  or  of  lard  substitute,  un* 
less  sold  in  bulk,  shall  be  put  up.  in  paila 
or  other  containers  holding  one  (1),  thre^ 
(3),  or  five    (5),  pounds  net  weight,  or 


611-613 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oor.  TklM» 


■ome  whole  multiple  of  these  niimherf,.and 
not  any  fractions  thereof.  If  the  container 
be  found  deficient  in  weight  additional  lard, 
compound,  or  substitute,  shall  be  furnished 
to  the  purchaser  to  malce  up  the  legal 
weight.  The  face  label  shall  show  the  true 
name  and  grade  of  the  product,  the  true 
net  weight  together  with  the  true  name  and 
address  of  the  producer  or  jobber.  If  other 
than  leaf  lard  is  used  then  the  label  shall 
show  the  kind,  as  'Back  Lard,'  or  'Intes- 
tinal Lard.'  Every  lard  substitute  or  lard 
compound  shall  also  show,  in  a  manner  to 
be  prescribed  by  the  food  commissioner, 
the  ingredients  of  which  it  is  composed,  and 
eaeh  and  every  article  shall  be  in  conform- 
ity with,  and  further  labeled  in  accord- 
ance with  the  requirements  Under  the  food 
laws  of  this  state."     [Laws  1911,  p.  355.] 

Violations  of  the  act  are  made  misde- 
meanors with  a  minimum  and  a  maximum 
fine  increased  for  subsequent  offenses. 

In  pursuance  of  the  statute  the  state's 
attorney  for  the  county  of  Cass  filed  an  in- 
formation against  plaintiff  in  error  for  un- 
lawfully offering  for  sale  and  selling  to  one 
E.  F.  Ladd  a  quantity  of  lard  not  in  bulk, 
which  was  put  up  by  the  company  and  sold* 
and  delivered  to  Ladd  in  a  pail  which  held 
more  than  2  pounds  and  less  than  3  [512] 
pounds  net  weight  of  lard,  to  wit,  2  pounds 
and  6  ounces,  which  pail  or  container  did 
not  have  or  display  on  the  face  label  there- 
of the  true  net  weight  of  the  lard  in  even 
pounds  or  whole  multiples  thereof,  but  ex- 
pressed the  weight  of  the  lard  in  pounds 
and  ounces. 

A  demurrer  to  the  information  was  over- 
ruled and  the  Armour  Company  pleaded  not 
guilty.  A  stipulation  was  entered  into  waiv- 
ing a  jury  trial  and  that  the  issues  be  tried 
by  the  court. 

Hie  company  was  found  guilty  and  ad- 
judged to  pay  a  fine  of  $100.  The  judgment 
was  affirmed  by  the  supreme  court  of  the 
state  and  this  writ  of  error  was  then  al- 
lowed by  its  chief  justice. 

The  assignments  of  error  attack  the  valid- 
ity of  the  statute,  specifying  as  grounds  of 
the  attack  that  the  statute  offends  the  due 
process  and  equal  protection  clauses  of  the 
14th  Amendment  of  the  Constitution  of  the 
United  States  and  also  the  commerce  clause 
of  the  Constitution. 

Armour  k  Company  is  a  New  Jersey  cor- 
poration. It  is  a  packer  of  certain  pork 
products  and  has  packing  plants  where  it 
produces  lard  as  an  incident  to  its  busi- 
Bess  in  Illinois,  Missouri,  Iowa,  and  Nebras- 
ka. It  has  no  plant  in  North  Dakota,  but 
has  a  branch  oflSce  establishment  in  the 
city  of  Fargo,  in  that  state,  to  which  its 
good!  are  shipped  in  carload  lots  to  be  dis- 
774 


tributed  therefrom.  The  braiicb  at  Ftirgo  is 
under  the  charge  of  a  local  manager. 

In  October,  1011,  the  state  food  commis- 
sioner went  to  the  company's  establishment 
at  Fargo  and  asked  to  purchase  3  pounds 
of  lard.  He  was  sold  a  pail  containing  2 
pounds  and  6  ounces.  It  was  upon  this 
sale  as  a  violation  of  the  statute  that  the 
information  was  filed,  and  for  which  the 
Armour  Company  was  convicted  and  sen- 
tenced. 

The  supreme  court  considered  the  statute 
as  but  a  development  of  other  laws  passed 
in  the  exercise  of  the  [513]  police  power  of 
the  state  to  secure  to  its  inhabitants  pure 
food  and  honest  weights,  questions  which 
the  court  thought  were  "inseparably  allied 
and  any  argument  advanced  upon  one  ap- 
plies equally  to  the  other."  And  the  court 
said  the  law  was  drafted  by  the  Pure  Food 
Conunission,  it  might  be  reasofiably  as- 
sumed, "after  twelve  years  of  observation 
and  study,"  and,  further,  that  "the  expert 
who  drafted  tha  law,  the  legislature  who 
passed  it,  and  the  governor  who  approved  it, 
all  thought  necessity  existed  for  such  a 
measure.  If  we  did  not  agree  with  all 
those,  we  might  well  hesitate  to  say  that 
there  was  absolutely  no  doubt  upon  the 
question,  but  in  fact  a  majority  of  this 
court  believes  the  law  not  only  reasonablr, 
but  necessary,  and  this  belief  is  founded 
upon  the  evidence  in  this  case  and  upon 
facts  of  which  this  court  can  take  judicial 
cognizance."! 

The  court,  by  these  remarks,  expressed 
the  test  of  a  judicial  review  of  legislation 
enacted  in  the  exercise  of  the  police  power, 
and  in  view  of  very  recent  decisions  it  is 
hardly  necessary  to  enlarge  upon  it.  We 
said  but  a  few  days  ago  that  if  a  belief  of 
evils  is  not  arbitrary,  we  cannot  measure 
their  extent  against  the  estimate  of  the  leg- 
islature, and  there  is  no  impeachment  of 
such  estimate  in  differences  of  opinion,  how- 
ever strongly  sustained.  And  by  evils,  it 
was  said,  there  was  not  necessarily  meant 
some  definite  injury,  but  obstacles  to  a 
greater  public  welfare.  Nor  do  the  courts 
have  to  be  sure  of  the  precise  reasons  for 
the  legislation,  or  certainly  know  them,  or 
be  convinced  of  the  wisdom  or  adequacy  of 
the  laws.  Rast  v.  Van  Deman  &  L.  Co.  240 
U.  S.  842,  ante,  679,  36  Sup.  Ct.  Rep.  370  ^ 
Tanner  v.  Little,  240  U.  S.  360,  ante,  691, 36 
Sup.  Ct.  Rep.  379.    It  only  remains  to  ap- 

I  [This  quotation  is  taken  from  the  orig- 
inal opinion  of  the  state  court  in  this  case. 
Following  the  denial  of  a  petition  for  re- 
hearing a  substituted  opinion  was  filed,  this 
latter  opinion  being  the  one  reported  in  27 
N.  D.  177,  L.RJL— ,  — ,  145  N.  W.  1033. 
—Ed.] 

S40  U.  8. 


191S. 


ARMOUR  k  00.  ▼.  NORTH  DAKOTA. 


61S-616 


p\j  to  thA  present  case  the  principles  so 
Announced. 

Lard  is  a  verj  useful  product  and  its 
many  purposes  are  set  forth  in  the  testi- 
mony. It  was  originally  sold  in  the  state 
only  in  tierces  and  tubs;  that  is,  in  bulk. 
A  demand  arose  for  smaller  and  more  con- 
venient packages  and  the  [614]  Armour 
Company  and  other  packers  responded  to 
that  demand  and  put  their  lard  in  3,  5,  and 
10-pound  pails,  gross  weight,  the  net  weight 
of  lard  at  first  having  no  indication,  but 
subsequently,  in  obedience  to  the  state  laws, 
being  indicated  by  labels,  and  in  the  present 
case  by  a  small  label  at  2  pounds  and  6 
ounces.  The  practice  of  selling  by  gross 
weight  is  a  continuation  of  the  practice  of 
selling  by  bulk. 

The  Armour  Company  asserts  an  in- 
violable right  in  the  practice  as  convenient 
and  useful  and  free  from  deception.  But 
experience  does  not  justify  such  unqualified 
praise.  The  practice  has  its  advantages,  no 
doubt,  but  it  is  the  observation  of  the  of- 
ficers of  the  state  that  it  conceals  from 
buyers  their  exact  purchases, — there  is  con- 
fusion as  to  what  the  price  paid  compen- 
sates, whether  lard  or  tin  container. 

The  Armour  Company  contests  this  con- 
clusion and  contends  that  the  label  upon 
the  package,  put  on  in  observance  of  a  law 
of  the  state  passed  in  1907,^  shows  the  net 
weight  of  the  lard,  and  protects  the  con- 
sumer from  imposition  while  it  preserves 
to  the  company  a  useful  method  of  pack- 
ing  and  a  necessary  freedom   of   business 
with  the  public.    To  this  we  reply  the  law 
of  1007   was  deemed  necessary  to  protect 
the  purchaser   against  the  concealment  in 
the  method  of  the  packers,  the  amount  of 
lard  not  being  indicated.  Supposedly  the  re- 
<quirement  was  not  adequate,  and  the  law  of 
1911  was  passed.  However,  with  a  compari- 
son of  the  laws  we  have  nothing  to  [515] 
<lo,  nor  need  we  even  consider,  as  the  su- 
preme court  considered,  with  some  reluct- 
ance, that  the  label  used  by  the  company 
was  a  scant  compliance  with  the  law  of 
1007,  if  not  an  evasion  of  it.     We  need 
only  deal  with  the  law  under  review  and 
the   justification   for   its   adoption.     Evils 
mtiended  the  method  of  the  company  which 

1  The  law  of  1907,  p.  316,  reproducing  the 
provision  of  a  law  passed  in  1905,  provided 
%U  follows: 

"Ninth.  If  every  package,  bottle  or  con- 
tainer does  not  bear  the  true  net  weight, 
the  name  of  the  real  manufacturer  or  job- 
bers, and  the  true  grade  or  class  of  the 
product,  the  same  to  be  expressed  on  the 
face  of  the  principal  label  in  clear  and  dis- 
tinct English  woras  in  black  type  on  a  white 
baekground,  said  type  to  be  in  size  uniform 
with  that  used  to  name  the  brand  or  pro- 
ducer. .  .  ." 
#0  li.  ed. 


the  Food  Oommission  of  the  state  thought 
should  be  redressed,  and  which  the  legisla- 
ture reasonably  believed  were  definite,  and 
not  fanciful,  and  in  this  belief  passed  the 
law.  And  the  belief  being  of  that  character 
removes  the  law,  as  we  have  already  said, 
from  judicial  condemnation;  and  besides, 
there  is  nothing  in  the  testimony  incon- 
sistent with  it. 

The  testimony  of  the  company  was  di- 
rected at  great  length  to  show  Uie  advan- 
tages of  selling  in  containers  over  selling 
in  bulk,  and  the  expense  to  the  compa- 
ny of  the  former,  and  the  additional  ex- 
pense which  the  law  would  require.  And 
meeting  the  objection  that  the  company 
fixed  the  price  of  the  lard  by  the  gross 
weight  of  the  package, — ^in  other  words,  as 
though  there  were  3  pounds  instead  of  2 
pounds,  6  ounces,  it  was  replied  that  by  so 
doing  there  was  no  profit  to  the  company 
and  only  a  reimbursement  of  the  cost  of  the 
tin  container  and  extra  cost  of  putting  up 
the  lard  in  that  style  of  package. 

But  this  does  not  justify  the  practice  of 
the  company  nor  establish  the  invalidity  of 
the  law  of  the  state.  The  advantages  are 
in  a  sense  made  a  snare,  and  the  testimony 
means  no  more  than  that  the  packer  has 
built  up  a  trade  on  a  system  of  gross  weight 
which  enables  it  to  practice  a  kind  of  de- 
ception on  the  purchaser  that  he  is  getting 
3  pounds  of  lard  when  he  is  only  getting  2 
pounds,  6  ounces,  and  enables  the  packer  to 
pay  for  the  container.  The  evil  of  the 
transaction  is  not  in  the  latter,  but  in  the 
former, — that  is,  in  the  deception.  The 
correction  of  the  statute  is  that  the  lard 
and  the  container  shall  be  unequivocally 
distinguished,  and  the  purchaser  have  the 
[516]  direct  assurance  of  the  quantity  of 
lard  he  is  receiving,  knowledge  of  its  price 
and  the  cost  of  the  container  to  him, — a 
means  of  estimating  his  purchase  free  from 
disguises  or  the  necessity  of  an  arithmeti- 
cal estimate  of  what  he  is  getting  or  pay- 
ing for  upon  the  market  fiuctuations  of 
lard  and  tin.  This  may  involve  a  change 
of  packing  by  the  company  and  the  cost  of 
that  change,  but  this  is  a  sacrifice  the  law 
can  require  to  protect  from  the  deception 
of  the  old  method.  The  law  is  allied  in 
principle,  as  the  supreme  court  of  the  state 
observed,  to  regulations  in  the  interest  of 
honest  weights  and  measures.  It  involves 
no  giving  up  of  what  the  company  has  a 
right  to  retain,  and  the  cost  of  the  con- 
tainer as  well  after  change  as  now  can  be 
cast  upon  the  purchaser,  he,  however,  be- 
ing able  to  determine  if  it  is  worth  the 
price  he  has  to  pay  for  it. 

There  are  advantages  undoubtedly  in 
packing  lard  in  pails, — advantages  to  the 


616-518 


8UPREMB  COURT  OF  THE  UNITED  STATES. 


Ooi.  Tbbk, 


packer  And  the  consumer;  but  the  advan- 
tages  are  not  on  account  of  selling  by  groM 
instead  of  by  net  weight.  In  other  words, 
all  of  the  advantages  will  be  retained  by 
a  compliance  with  the  provisions  of  the 
law;  that  is,  by  putting  up  the  lard  in  1, 
3,  or  5-pound  packages,  net  weight,  or  some 
multiple  of  those  numbers.  It  is  in  the 
testimony  that  the  packing  company  fur- 
nishes lard  in  net-weight  pails  to  Park  k 
Tilford,  of  New  York  city;  that  is,  in 
weights  of  3,  5,  and  10  pounds,  and  has 
been  doing  so  for  a  few  years. 

The  equal  protection  clause  of  the  14th 
Amendment  is  invoked  by  the  Armour  Com- 
pany and  the  specification  is  that  the  law 
under  review  "arbitrarily  and  without  rea- 
sonable ground  therefor  singles  out  lard 
from  all  food  products"  which  are  sold  in 
packages,  such  as  "prints  of  butter,  pack- 
ages of  coffee,  boxes  of  crackers,  and  the 
endless  number  of  other  products  sold  in 
package  form  are  not  included,  and  no  nat- 
ural and  reasonable  [517]  ground  for  ex- 
cluding them  and  in  singling  out  lard  has 
been  suggested.** 

The  range  of  discretion  that  a  state  pos- 
sesses in  classifying  objects  of  legislation 
we  may  be  excused  from  expressing,  in  view 
of  very  recent  decisions.  The  power  may 
be  determined  by  degrees  of  evil,  or  exer- 
cised in  cases  where  detriment  is  specially 
experienced.  Carroll  ▼.  Greenwich  Ins.  Co. 
199  U.  S.  401,  411,  50  L.  ed.  246,  250,  26 
Sup.  Ct.  Rep.  66;  Central  Lumber  Co.  t. 
South  Dakota,  226  U.  S.  157,  161,  57  L.  ed. 
164,  169,  33  Sup.  Ct.  Rep.  66.  The  law  of 
North  Dakota  does  not  exceed  this  power. 

It  is  objected  that  the  law  violates  the 
commerce  clause  of  the  Constitution.  This 
is  certainly  not  true  of  the  sale  to  Ladd. 
It  was  distinctly  by  retail  and  in  the  pack- 
age of  retail,  not  in  the  package  of  im- 
portation. And  it  is  to  such  retail  sales 
the  statute  is  directed.  It  does  not  attempt 
to  regulate  the  transportation  to  the  state. 

Nor  do  we  think  that  the  law  is  repug- 
nant to  the  pure  food  and  drugs  act  of  June 
30,  1906  (34  SUt.  at  L.  768,  chi^).  3915, 
Comp.  SUt.  1918,  S  8717).  That  act  is  di- 
rected against  ti&e  adulteration  and  mis- 
branding of  articles  of  food  transported  in 
interstate  commerce.  The  state  statute  has 
no  such  purpose;  it  is  directed  to  the  man- 
ner of  selling  at  retail,  which  is  in  no  way 
repugnant  to  the  Federal  law  (Rast  v.  Van 
Deman  ft  L.  Co.  240  U.  S.  842,  ante,  679,  86 
Sup.  Ct.  Rep.  370),  and  the  operation  of 
that  law  is  in  no  way  displaced  or  inter- 
fered with. 

Judgment  affirmed* 
77« 


[618]  ST.  LOUIS,  IRON  MOUNTAIN.  & 
SOUTHERN  RAILWAY  COMPANY, 
Plff.  in  Err., 

T. 

STATE  OF  ARKANSAS. 

(See  S.  C.  Reporter's  ed.  518-521.) 

Constitutional  law  —  due  process  of  law 
—  full  switching  crew. 

1.  Railway  companies  with  yards  or 
terminals  in  cities  of  the  state  may,  con- 
sistently with  due  process  of  law,  be  for- 
bidden by  a  state  statute  to  conduct  switch- 
ing operations  across  public  crossings  in 
cities  of  the  first  and  second  class  with  a 
switching  crew  of  less  than  one  engineer, 
a  fireman,  a  foreman,  and  three  helpers. 
[For  other  cases,  see  Constitutional  Law.  IV. 

b,  5,  In  Digest  Sup.  Ct.  1908.] 

Constitutional  law  —  equal  protection 
of  the  laws  —  classification  —  fnll 
switching  crew. 

2.  The  exemption  in  favor  of  railways 
less  than  100  miles  in  length,  made  by  a 
state  statute  forbidding  railway  companies 
with  yards  or  terminals  in  cities  of  the 
state  to  conduct  switching  operations  across 
public  crossings  in  cities  of  the  first  or  sec- 
ond class  with  a  switching  crew  of  less  than 
one  engineer,  a  fireman,  a  foreman,  and 
three  helpers,  does  not  render  the  statute 
repugnant  to  U.  S.  Const.,  14th  Amend.,  as 
denying  the  equal  protection  of  the  laws  to 
a  railway  company  coming  within  its  pro- 
visions, althouig^  certain  terminal  compa- 
nies which  do  switching  for  connecting 
trunk  lines,  being  less  than  100  miles  in 
length,  are  not  covered  hy  the  statute,  and 
one  of  such  companies  may  do  switching 
over  some  of  the  same  crossings  that  the 
railway  company  in  question  does. 

[For  other  cases,  see  Constltotlonal  Law,  IV. 
a,  8.  b,  in  Digest  Sup.  Ct.  1908.] 

Commerce  —  state     regulation  •*  fnll 

switching  crew. 

3.  Interstate  commerce  is  not  uncon- 
stitutionally interfered  with  by  a  state  stat- 
ute which  forbids  railway  companies  with 


NoTB. — As  to  constitutionality  of  full- 
crew  acts — see  note  to  Pennsylvania  R.  Co. 
V.  Ewing,  49  L.RJL(N.S.)   978. 

On   excessive    penalty   as  denial   of   due 

ftrocess  of  law — see  note  to  State  v.  Craw- 
ord,  46  L.R.A.(N.S.)  1039. 

As  to  what  constitutes  due  process  of  law, 
generally — see  notes  to  People  v.  O'Brien,  2 
L.R.A.  255;  Kuntz  v.  Sumption,  2  L.R.A. 
655;  Re  Gannon,  5  L.RJL.  359;  Ulman  v. 
Baltimore,  11  LJLA.  224;  Oilman  v. 
Tucker,  13  L.R.A.  304;  Pearson  v.  Yewdall, 
24  L.  ed.  U.  S.  436;  and  Wilson  v.  North 
Carolina,  42  L.  ed.  U.  S.  865. 

As  to  the  validity  of  class  legislation, 
generally — see  notes  to  State  v.  Goodwill,  6 
LrJL  621,  and  State  ▼.  Loomis,  21  L.R.A. 
789. 

As  to  constitutional  equality  of  privileges, 
immunities,  and  protection,  generally — see 
note  to  Louisville  Safety  Vault  ft  T.  Co.  v. 
Louisville  ft  N.  R.  Co.  14  LJLA.  579. 

240  U.  8. 


1915. 


ST.  LOUIS,  I.  M.  ft  S.  R.  CO.  v.  ARKANSAS. 


Tarda  or  terminals  in  cities  of  the  state 
to  conduct  switching  operations  across  pub- 
He  crossings  in  cities  of  the  first  or  second 
daw  with  a  switching  crew  of  less  than  one 
Miffineer,  a  fireman,  a  foreman,  and  three 

li^>er8. 

[For  other  cases,  see  Commerce,  III.,  in  Di- 
gest Sap.  Ct.  1908.] 

Ctonstitntional  law  —  equal  protection 
of  the  laws  —  excesalTe  penal tiefi. 

4.  A  state  statute  forbidding  railway 
eompanies  with  yards  or  terminals  in  cities 
of  the  state  to  conduct  switching  operations 
across  public  crossing  in  cities  of  the 
first  or  second  class  with  a  switching  crew 
of  less  than  one  engineer,  a  fireman,  a  fore- 
man, and  three  helpers,  under  penalty  of 
$&0  fine  for  each  separate  offense,  is  not 
repugnant  to  U.  S.  Const.,  14th  Amend.,  on 
the  theory  that  it  prevents  a  contest  of  its 
validity  by  the  excess  of  its  penalties. 
[For  other  cases,  see  Constitutional  Law,  IV. 
a,  8,  b,  in  Digest  Sop.  Ct.  1908.] 

[No.  302.] 

Argued  March  17,  1916.    Decided  April  3, 

1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Arkansas  to  review  a  judgment 
which  affirmed  a  conviction  in  the  Circuit 
Court  of  Garland  County,  in  that  state,  of 
a  violation  of  the  full  switching  crew  act. 
Affirmed. 

See  same  case  below,  114  Ark.  486,  170 
8.  W.  680. 
The  facts  are  stated  in  the  opinion. 

Mr.  Robert  E.  Wiley  argued  the  cause, 
and,  with  Messrs.  E.  B.  Kinsworthy  and 
Edward  J.  White,  filed  a  brief  for  plaintiff 
In  error: 

The  statute  in  question  is  discrimina- 
tory, and  denies  to  plaintiff  in  error  the 
equal  protection  of  the  laws. 

Soon  Hing  v.  Crowley,  113  U.  S.  709,  28 
L.  ed.  1147,  5  Sup.  Ct.  Rep.  730;  Gulf,  C.  & 
S.  F.  R.  Co.  V.  Ellis,  166  U.  S.  160,  41  L.  ed. 
666,  17  Sup.  Ct.  Rep.  255;  Yick  Wo  v.  Hop- 
kins, 118  U.  fi.  356-369,  30  L.  ed.  220-222, 
6  Sup.  Ct.  Rep.  1064;  Southern  R.  Co.  v. 
Greene,  216  U.  S.  400,  64  L.  ed.  636,  80  Sup. 
Ct.  Rep.  287,  17  Ann.  Cas.  1247;  Connolly 
▼.  Union  Sewer  Pipe  Co.  184  U.  S.  640,  46 
L.  ed.  679,  22  Sup.  Ct.  Rep.  431 ;  1  Suther- 
land, Stat.  Constr.  2d  ed.  p.  366;  Cotting 
▼.  Kansas  City  Stock  Yards  Co.  (Cotting  v. 
Godard)  183  U.  S.  79,  46  L.  ed.  92,  22  Sup. 
Ct  Rep.  30. 

It  is  also  arbitrary  and  unreasonable  and 
repugnant  to  the  due  process  clause  of  the 
14th  Amendment  of  the  Constitution  of  the 
United  States. 

Adair  v.  United  States,  208  U.  S.  161,  62 
L.  ed.  436,  28  Sup.  Ct.  Rep.  277,  13  Ann. 
Gas.  764;  Mugler  v.  Kansas,  123  U.  S.  623, 
81  L.  ed.  205,  8  Sup.  Ct.  Rep.  273;  Qiicago, 
•0  li.  ed. 


M.  A  St.  P.  R.  Co.  V.  Tompkins,  176  U.  S. 
167,  44  L.  ed.  417,  20  Sup.  Ct.  Rep.  336; 
Missouri  P.  R.  Co.  ▼.  Nebraska,  217  U.  S. 
196,  64  L.  ed.  727,  30  Sup.  Ct.  Rep.  461,  18 
Ann.  Cas.  989;  Washington  ex  rel.  Oregon 
R.  &  Nav.  Co.  V.  Fairchild,  224  U.  S.  610, 
66  L.  ed.  863,  32  Sup.  Ct.  Rep.  635;  Louis- 
iana &  A.  R.  Co.  ▼.  State,  86  Ark.  12,  106 
S.  W.  960. 

The  act  is  void  because  judicial  review  to 
test  its  constitutionality  can  be  had  only 
at  the  risk  of  excessive  penalties. 

Rider  v.  Leatherman,  86  Ark.  230,  107 
S.  W.  996;  De  Queen  v.  Fenton,  98  Ark. 
624;  136  S.  W.  946;  State  v.  Lindsay,  34 
Ark.  372;  Ex  parte  Young,  209  U.  S.  123, 
62  L.  ed.  714,  13  L.R.A.(N.S.)  932,  28  Sup. 
Ct.  Rep.  441,  14  Ann.  Cas.  764;  Wadley 
Southern  R.  Co.  v.  Georgia,  236  U.  S.  651, 
69  L.  ed.  406,  P.U.R.1916A,  106,  35  Sup. 
Ct.  Rep.  214. 

The  requirements  of  the  act  operate  as 
a  regulation  of  and  an  interference  with 
interstate  commerce. 

Minnesota  Rate  Cases  (Simpson  v.  Shep- 
ard)  230  U.  S.  862,  67  L.  ed.  1511,  48 
L.R.A.(N.S.)  1161,  33  Sup.  Ct.  Rep.  729, 
Ann.  Cas.  191 6A,  18;  South  Covington  &  C. 
Street  R.  Co.  v.  Covington,  236  U.  S.  637, 
69  L.  ed.  360,  L.R.A.1916F,  792,  P.U.K. 
1915A,  231,  36  Sup.  Ct.  Rep.  168. 

Mr.  Henry  M.  Armistead  argued  the 
cause,  and,  with  Messrs,  Ashley  Cockrill, 
Hamilton  Moses,  W.  D.  Jackson,  Gus  K. 
Jones,  and  Mr.  Wallace  Davis,  Attorney 
General  of  Arkansas,  filed  a  brief  for  de- 
fendant in  error: 

The  act  is  not  unconstitutional  as  inter- 
fering with  interstate  commerce. 

Chicago,  R.  I.  &  P.  R.  Co.  v.  Arkansas, 

219  U.  S.  463,  65  L.  ed.  290,  31  Sup.  Ct. 
Rep.  276;  Pittoburgh,  C.  C.  A  St.  L.  R.  Co. 
V.  Indiana,  223  U.  S.  713,  66  L.  ed.  626,  32 
Sup.  Ct.  Rep.  620;  Savage  v.  Jones,  225 
U.  6.  623,  66  L.  ed.  1190,  32  Sup.  Ct.  Rep. 
716;  Chesapeake  A  0.  R.  Co.  v.  Conley,  230 
U.  S.  613,  67  L.  ed.  1697,  33  Sup.  a.  Rep. 
985;  Atlantic  Coast  Line  R.  Co.  v.  Georgia, 
234  U.  S.  280,  68  L.  ed.  1312,  34  Sup.  Ct. 
Rep.  829. 

The  classification  of  railways  affected  is 
not  so  arbitrary  as  to  make  the  act  uncon- 
stitutional. 

Lindaley  ▼.   Natural   Carbonic   Gas   Co. 

220  U.  S.  61,  66  L.  ed.  369,  81  Sup.  Ct.  Rep. 
837,  Ann.  Cas.  1912C,  160;  Atchison,  T. 
A  S.  P.  R.  Co.  V.  Matthews,  174  U.  S.  104, 
43  L.  ed.  912,  19  Sup.  Ct.  Rep.  609;  Price 
y.  Illinois,  238  U.  S.  446,  69  L.  ed.  1400,  36 
Sup.  Ct.  Rep.  892;  Minnesota  Iron  Co.  v. 
Kline,  199  U.  S.  693,  60  L..  ed.  822,  26  Sup. 
Ct.  Rep.  159, 19  Am.  Neg.  Rep.  626;  Steven- 
son Iron  Min.  Co.  ▼.  Kibbe,  205  U.  6*  537^ 

111 


510,  520 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oor.  TteM, 


51  L.  ed  020,  27  Sup.  Ct.  Rep.  700;  South 

Carolina  ex  rel.  Phoenix  Mut.  L.  Ins.  Co.  v. 

McMaster,  237  U.  S.  68,  50  L.  ed.  830,  35 

Sup.  Ot.  Rep.  504;  Booth  t.  Indiana,  237  U. 

S.  301,  50  L.  ed.  1011,  35  Sup.  a.  Rep.  617 ; 

MiUer  y.  Wilson,  236  U.  S.  373,  50  L.  ed. 

628,  LJLA.1015F,  820,  35  Sup.  a.  Rep.  342; 

Keokee  ConsoL  Coke  Co.  v.  Taylor,  234  U. 

S.  224,  58  L.  ed.  1288,  34  Sup.  Ct.  Rep. 

856;  Chicago,  R.  I.  4t  P.  R.  Co.  ▼.  Arkansas, 

210  U.  S.  453,  55  L.  ed.  200,  31  Sup.  Ct.  Rep. 

275;  Chesap^e  &  0.  R.  Co.  ▼.  Conley,  230 

U.  S.  513,  57  L.  ed.  1507,  33  Sup.  a.  Rep. 

085;  Dow  t.  Beidleman,  125  U.  S.  680,  31  L. 

ed.  841,  2  Inters.  Com.  Rep.  56,  8  Sup.  Ct. 

Rep.  1028;  New  York,  N.  H.  &  H.  R.  Co.  v. 

New  York.  165  U.  S.  628,  41  L.  ed.  863,  17 

Sup.  Ct.  Rep.  418;  Easterling  Lumber  Co. 

▼.  Pierce,  235  U.  S.  380,  50  L.  ed.  270,  35 

Sup.  Ct.  Rep.  133;  Jeffrey  Mfg.  Co.  ▼.  Blagg, 

235  U.  S.  571,  50  L.  ed.  364,  35  Sup.  Ct. 

Rep.  167,  7  N.  C.  C.  A.  570;  Hendrick  v. 

Maryland,  235  U.  S.  610,  50  L.  ed.  385,  35 

Sup.  Ct.  Rep.  140;  Northwestern  Laundry 

y.  Des  Moines,  230  U.  S.  486,  ante,  306,  36 

Sup.  Ct.  Rep.  206. 
The  act  is  not  unreasonable  as  a  measure 

of  safety. 
McLean  y.  Arkansas,  211  U.  S.  530,  53  L. 

ed.  315,  20  Sup.  Ct.  Rep.  206;  Jacobson  y. 

MassachusetU,  107  U.  S.  11,  40  L.  ed.  643, 

25  Sup.  Ct.  Rep.  358,  3  Ann.  Cas.  765;  Mug- 

ler  y.  Kansas,  123  U.  S.  623,  31  L.  ed.  205, 
8  Sup.  Ct.  Rep.  273;  Minnesota  y.  Barber, 

136  U.  S.  313,  34  L.  ed.  466,  3  Inters.  Com. 

Rep.  186,  10  Sup.  Ct.  Rep.  862;  Atkin  y. 
Kansas,  101  U.  S.  207,  48  L.  ed.  148,  24  Sup. 
Ct  Rep.  124;  Williams  y.  Arkansas,  217 
U.  S.  70,  54  L.  ed.  673,  30  Sup.  Ct.  Rep. 
403,  18  Ann.  Cas.  866;  Sheylin-Carpenter 
Co.  y.  Minnesota,  218  U.  S.  57,  54  L.  ed. 
030,  30  Sup.  Ct.  Rep.  663;   Qiicago,  B.  A, 

Q.  R.  Co.  y.  McGuire,  210  U.  S.  640,  55  L. 
•d.  328,  31  Sup.  Ct.  Rep.  260;  Chicago,  R. 
L  &  P.  R.  Co.  y.  Arkansas,  210  U.  S.  463, 
55  L.  ed.  200,  31  Sup.  Ct.  Rep.  275;  Atchi- 
son, T.  &  S.  F.  R.  Co.  y.  Matthews,  174  U. 
S.  06,  43  L.  ed.  000,  10  Sup.  Ct.  Rep.  600; 
Florida  C.  &  P.  R.  Co.  y.  Reynolds,  183  U. 
S.  471,  46  L.  ed.  283,  22  Sup.  Ct.  Rep.  176; 
Missouri,  K.  A  T.  R.  Co.  y.  Cade,  233  U.  S. 
642,  58  L.  ed.  1135,  34  Sup.  Ct.  Rep.  678; 
Noble  State  Bank  y.  Haskell,  210  U.  S.  104, 
55  L.  ed.  112,  32  LJlJl.(N.S.)  1062,  31  Sup. 
Ct  Rep.  186,  Ann.  Cas.  1012A,  487. 

If  there  was  really  a  fear  of  the  penalties 
in  the  case  at  bar,  injunctiye  protection 
would  haye  been  sought. 

Wadley  Southern  R.  Co.  y.  Georgia,  235 
U.  S.  651,  50  L.  ed.  405,  P.UJL1015A,  106, 
35  Sup.  Ct.  Rep.  214. 

,  The  objection  made  seems  to  be  that  no . 
maximum  limit  is  fixed  for  the  penalty. 
778 


This  is  not  required  either  in  this  oovntry 
or  England. 

12  Cyc  066,  and  cases  cited;  1014  Qyc. 
Ann.  1518. 

But  the  question  is  not  really  before  the 
court.  The  penalty  assessed  is  not  unrea- 
sonable. The  proyision  for  penalties  is 
separable,  and  not  inyoWed. 

Willcox  y.  Consolidated  Gas  Co.  212  U. 
S.  10,  63  L.  ed.  382,  48  L.RJL(NJ3.)  1134, 
20  Sup.  Ct  Rep.  102,  15  Ann.  Cas.  1034; 
Louisyille  ft  N.  R.  Co.  y.  Garrett  231  U.  S. 
208,  58  L.  ed.  220,  34  Sup.  Ct  Rep.  48; 
Grand  Trunk  R.  Co.  y.  Michigan  R.  Commis- 
sion, 231  U.  S.  467,  68  L.  ed.  310,  34  Sup.  Ct 
Rep.  162;  Flint  y.  Stone  Tracy  Co.  220  U. 
S.  107,  56  L.  ed.  380,  31  Sup.  Ct.  Rep.  342, 
Ann.  Cas.  1012A,  1312;  Ohio  Tax  Cases, 
232  U.  S.  576,  58  L.  ed.  738,  34  Sup.  Ot 
Rep.  372. 

Mr.  Justice  McKenna  deliyered  the  opin- 
ion of  the  court: 

An  act  of  the  state  of  Arkansas,  entitled, 
''An  Act  for  the  Better  Protection  and 
Safety  of  the  Public,"  proyides  as  follows: 

"Section  1.  That  no  railroad  company  or 
corporation  owning  or  operating  any  yards 
or  terminals  in  the  cities  within  this  state, 
where  switching,  pushing  or  transferring  of 
cars  are  made  across  public  crossings  with- 
in the  city  limits  of  the  cities,  shall  operate 
their  switch  crew  or  crews  with  less  than 
one  engineer,  a  fireman,  a  foreman  and  three 
helpers. 

"Section  2.  It  beipg  the  purpose  of  this 
act  to  require  all  railroad  companies  or 
corporations  who  operate  any  yards  or  ter- 
minals within  this  state  who  do  switching, 
pushing  or  transferring  of  cars  across  pub- 
lic crossings  within  the  city  limits  of  the 
cities  to  operate  said  switch  crew  or  crews 
with  not  less  than  one  engineer,  a  fireman, 
a  foreman  and  three  helpers,  but  nothing  in 
this  act  shall  be  so  construed  as  to  preyent 
any  railroad  company  or  corporation  [620] 
from  adding  to  or  increasing  their  switch 
crew  or  crews  beyond  the  niunber  set  out 
in  this  act. 

"Section  3.  The  proyisions  of  this  act 
shall  only  apply  to  cities  of  the  first  and 
second  class,  and  shall  not  apply  to  rail- 
road companies  or  corporations  operating 
railroads  less  than  100  miles  in  length. 

"Section  4.  Any  railroad  company  or  cor- 
poration yiolating  the  proyisions  of  this  act 
shall  be  fined  for  each  separate  offense  not 
less  than  $60  and  each  crew  so  illegally 
operated  shall  constitute  a  separate  offense." 
[Acts  1013,  pp.  211,  212.] 

The  railroad  company  yiolated  the  terms 
of  the  statute  for  a  day  in  the  city  of  Hot 
Springs,  and,  being  conyicted  thereof,  was 
sentenced  to  pay  the  minimum  fine  imposed 

S40  U.  B. 


1915.  INDIAN  TERRITORY  ILLUMINATING  OIL  00.  ▼.  OKLAHOMA.     620-682 


bj  the  statute.  The  judgment  whieh  was 
entered  upon  the  sentence  was  affirmed  by 
the  flupreme  court  of  the  state.  This  writ 
of  error  was  then  granted. 

The  railroad  company  contends  that  the 
atatute  Tiolates  (1)  the  due  process  and 
equality  clauses  of  the  14th  Amendment  of 
the  Constitution  of  the  United  SUtes,  (2) 
that  it  operates  as  an  interference  with  in- 
terstate commerce,  and  (8)  prevents  a  con- 
test of  its  validity  by  the  excess  of  its  pen- 
alties. Of  the  last  ground  it  may  be  imme- 
diately said  that  it  is  without  merit. 

The  other  grounds  are  in  effect  disposed 
of  by  prior  decisions. 

In  the  case  of  Chicago,  R.  I.  ft  P.  R.  Co. 
T.  Arkansas,  219  U.  S.  453,  55  L.  ed.  290, 
31  Sup.  Ct.  Rep.  275,  k  statute  of  Arkansas 
was  considered  which  required  freight  trains 
to  be  equipped  with  crews  consisting  of  an 
engineer,  a  foreman,  a  conductor,  and  three 
brakemen,  "regardless  of  any  modem  equip- 
ment or  automatic  couplings  and  air  brakes. 
.  .  ."  The  statute  did  not  4pply  to  rail- 
roads whose  line  or  lines  did  not  exceed 
60  miles  in  length,  nor  to  any  railroad, 
regardless  of  length  of  its  line,  where  the 
freight  train  should  consist  of  less  than 
twenty-five  cars.  The  statute  was  sustained 
on  the  authority  of  prior  cases  against 
charges  of  conflict  [621]  with  the  14th 
Amendment  and  the  commerce  clause  of  the 
Constitution.  We  need  not  cite  the  cases  re- 
lied on  or  repeat  the  argument  of  the  court. 
In  that  case,  as  in  this,  there  was  contro- 
versy in  the  testimony  and  the  contentions 
of  the  parties  as  to  the  necessity  of  the 
statute.  It  was  held,  however,  that  the 
controversy  did  not  establish  that  the  stat- 
ute was  an  arbitrary  exercise  of  power. 
Armour  ft  Co.  v.  North  Dakota,  this  day 
decided  [240  U.  6.  610,  ante,  771,  36  Sup.  Ct. 
Rep.  440]. 

A  distinction  is  asserted  between  that 
ease  and  this,  and  it  is  urged  that  the  opera- 
tion of  freight  trains  of  more  than  twenty- 
five  cars  on  the  trunk  lines  may  require 
different  provision  than  the  movement  of 
•witching  operations  within  terminals.  But 
the  basis  of  both  is  safety  to  the  public, 
though  the  urgency  in  one  may  not  be  as 
great  as  the  urgency  in  the  other. 

A  more  serious  objection  is  that  certain 
terminal  companies,  one  at  the  city  of 
Helena  and  one  at  Fort  Smith,  do  switch- 
ing for  asrtain  connecting  trunk  lines,  and 
jet,  by  reason  of  their  length  being  less 
thaii  100  miles,  are  not  covered  by  the  act. 
Indeed,  it  is  said  that  one  of  them,  that  at 
Fort  Smith,  does  switching  over  some  of 
the  same  crossings  that  plaintiff  in  error 
does.  The  distinction  seems  arbitrary  if 
we  regard  only  its  letter,  but  there  may  I 
have  been  considerations  which  determined 
«•  L.  ed. 


it,  and  the  record  does  not  show  the  con- 
timry.  We  have  recognized  the  impossibil- 
ity of  legislation  being  all-comprehensive, 
and  that  there  may  be  practical  groupings 
of  objects  which  will  as  a  whole  fairly  pre- 
sent a  class  of  itself,  althou^  there  may 
be  exceptions  in  which  the  evil  aimed  at  is 
deemed  not  so  fiagrant.  Armour  ft  Co.  v. 
North  Dakota,  supra;  Miller  v.  Wilson,  236 
U.  S.  373,  382,  383,  50  L.  ed.  628,  631, 
632,  L.R.A.1015F,  829,  35  Sup.  Ct  Rep. 
342. 
Judgment  affirmed. 


[622]    INDIAN    TERRITORY    ILLUMI- 
NATINQ  OIL  COMPANY,  Plff.  in  Err., 

V. 

STATE  OF  OKLAHOMA. 

(See  S.  C.  Reporter's  ed.  622-531.) 

Taxes  —  Federal  agency  —  oil  and  gas 
lease  of  Indian  lands. 

A  state  may  not,  when  assessing  for 
purposes  of  taxation  the  corporate  as- 
signee of  an  oil  and  gas  lease  of  Osage 
lands,  made  under  the  authority  of  the  act 
of  February  28,  1891  (26  SUt.  at  L.  794, 
chap.  383,  Comp.  SUt.  1913,  §  4195),  and 
extended  by  the  act  of  March  3,  1905  (33 
F^tat.  at  L.  1049,  chap.  1479,  Comp.  Stat. 
1913,  S  3986),  which  recognized  the  assign- 
ment, include  in  such  assessment  the  lease 
and  rights  thereunder,  either  as  separate 
objects  of  taxation,  or  as  represented  or 
valued  by  the  stock  of  the  corporation. 
[For  other  cases,  see  Taxes,  I.  c,  2,  in  Digest 
8np.  Ct  1908.J 

[No.  283.] 

Argued  and  submitted  March  14,  1916.    De- 
cided AprU  3,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Oklahoma  to  review  a  judgment 
that  the  property  of  a  corporation  be  as- 
sessed as  recommended  by  a  referee.  Re- 
versed and  remanded  for  further  proceed- 
ings. 

See  same  case  below  on  rehearing,   43 
Okla.  307,  142  Pac  997. 
The  facts  are  stated  in  the  opinion. 

Mr.  Preston  O.  Weat  argued  the  cause, 
and,  with  Mr.  John  H.  Brennan,  filed  a 
brief  for  plaintiff  in  error: 

The  plenary  power  of  Congress  over  all 
the  lands  and  property  of  the  Osage  Indian 
Tribe  will  be  admitted.  Congress  has  un- 
questionably the  power  to  administer  the 
property  of  Indians,  and  Congress  posses- 
ses a  paramount  power  over  their  property 
by  reason  of  the  exercise  of  guardianship 
over  their  interests.    Such  authority  may 

77t 


522-624 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


be    implied,   even   though   opposed   to    the 
Btrict  letter  of  a  treaty  with  iht  Indiana. 

Lone  Wolf  ▼.  Hitchcoek,  187  U.  a  653,  47 
L.  ed.  299,  23  Sup.  Ct.  Rep.  216;  Choctaw 
Nation  t.  United  SUtes,  119  U.  S.  1,  30  L. 
ed.  306.  7  Sup.  Ct.  Rep.  75;  Stephens  v. 
Cherokee  Nation,  174  U.  S.  445,  43  L.  ed. 
1041,  19  Sup.  Ct.  Rep.  722;  United  SUtes 
y.  Aaron,  183  Fed.  347;  United  States  t. 
Allen,  103  C.  C.  A.  1,  179  Fed.  13;  Marchie 
Tiger  ▼.  Western  Invest.  Co.  221  U.  S.  286, 
55  L.  ed.  738,  31  Sup.  Ct.  Rep.  578;  Anicker 
y.  Gunsburg,  141  C.  C.  A.  174,  226  Fed.  176; 
United  States  v.  Osage  County,  193  Fed. 
485;  Gleason  v.  Wood,  28  Okla.  502,  114 
Pac.  703;  Jefferson  v.  Winkler,  26  Okla. 
653,  110  Pac.  755. 

In  any  event,  the  right,  license,  or  privi- 
lege possessed  by  the  Indian  Territory  Illu- 
minating Oil  Company  and  its  sublessees  to 
enter  upon  tribal  property  and  drill  for  oil 
cannot  be  taxed.  If  any  part  of  the  prop- 
erty of  said  lessees  is  taxable,  it  would 
only  be  its  physical  properties,  its  pipe 
lines,  casing,  derricks,  etc.,  employed  in 
the  oil  and  gas  business.  The  company, 
being  a  Federal  agent  under  the  lease,  and 
transacting  business  between  the  govern- 
ment and  the  Osage  Tribe  of  Indians,  is 
charged  with  the  burden  of  a  high  Federal 
policy  or  business.  Such  business,  license, 
privilege,  or  franchise  is  not  the  subject  of 
state  taxation. 

California  v.  Central  P.  R.  Co.  127  U.  S. 
1,  32  L.  ed.  150,  2  Inters.  Com.  Rep.  153, 
8  Sup.  Ct.  Rep.  1073;  Union  P.  R.  Co.  y. 
Peniston,  18  Wall.  5,  21  L.  ed.  787;  West- 
em  U.  Teleg.  Co.  v.  Texas,  105  U.  S.  460, 
26  L.  ed.  1067;  Farmers'  A  M.  Say.  Bank 
V.  Minnesota,  232  U.  S.  616,  58  L.  ed.  706, 
34  Sup.  Ct.  Rep.  354;  Choctaw,  O.  &  G.  R.  Co. 
y.  Harrison,  235  U.  S.  292,  59  L.  ed.  234,  35 
Sup.  Ct.  Rep.  27;  Missouri,  K.  &  T.  R.  Co. 
y.  Meyer,  204  Fed.  140;  McAIester-Edwards 
Coal  Co.  y.  Trapp,  43  Okla.  510,  141  Pac 
794;  Thomas  y.  Gay,  169  U.  S.  264,  42  L. 
ed.  740,  18  Sup.  Ct.  Rep.  340. 

If  the  court  intended  to  assess  the  stock 
of  the  company  at  its  full  value  of  $500,000, 
such  valuation  would  comprise  all  the 
leases  and  privileges  belonging  to  it,  as 
well  as  the  good  will  and  business,  thus 
bringing  the  case  squarely  within  the  con- 
demnation of  this  court. 

California  y.  Central  P.  R.  Oo.  127  U.  S. 
1,  2  Inters.  Com.  Rep.  153,  32  L.  ed.  160,  8 
Sup.  Ct.  Rep.  1073. 

Mr.   John   B.   Harrison   submitted  the 
cause  for  defendant  in  error.     Mr.  S.  P. 
Freeling,   Attorney   General   of   Oklahoma, 
and  Mr.  J.  H.  Miley  were  on  the  brief. 
780 


Mr.  Justice  McKenna  delivered  the  opin- 
ion  of  the  court: 

The  question  in  the  ease  is  whether  a 
certain  assignment  of  a  lease  and  rights 
thereunder,  made  by  the  Osage  Tri^  [523] 
of  Indians,  which  lease  conferred  the  priv- 
ilege of  prospecting,  drilling  wells  and  min- 
ing and  producing  petroleum  and  natural 
gas  upon  lands  in  Oklahoma  territory,  are 
subject  to  a  tax  assessed  under  the  laws  of 
Oklahoma  as  the  property  of  plaintiff  in  er- 
ror  in  its  capacity  of  a  public  service  cor- 
poration.! 

Plaintiff  in  error,  herein  designated  aa 
the  oil  company,  is  assignee  of  the  lease,  and 
asserts  the  negative  of  the  question,  con- 
tending that  under  the  lease  and  the  assign- 
ment of  the  lease  it  became  ''a  Federal 
agent,  acting  under  a  Federal  appointment 
and  authorization,  in  the  development  of 
lands  belonging  to  the  Osage  Tribe  of  In- 
dians in  the  Osage  Reservation,  and  that 
its  business,  license,  or  permit  as  such  can- 
not be  taxed  by  the  state  government,  al- 
though its  physical  properties  are  alwaya 
subject  to  taxation."  It  rests  its  conten- 
tion upon  an  act  of  Congress  of  February 
28,  1891  (26  SUt.  at  L.  794,  795,  chap.  383, 
Comp.  Stat.  1913,  §  4195),  and  an  act  of 
Congress  of  March  3,  1905  (33  Stat,  at  L. 
1049,  1061,  chap.  1479,  Comp.  Stat.  1913,  § 
3986),  which  extended  the  lease  to  the  ex- 
tent of  such  portion  of  .the  lands  as  had  been 
subleased,  namely,  680,000  acres. 

By  the  act  of  1891  it  was  provided: 
"That  where  lands  are  occupied  by  Indians 
who  have  bought  and  paid  for  the  same,, 
and  which  lands  are  not  needed  for  farm- 
ing or  agricultural  purposes,  and  are  not 
desired  for  individual  allotments,  the  same 
may  be  leased  by  authority  of  [524]  the 
council  speaking  for  such  Indians,  for  a 
period  not  to  exceed  five  years  for  grazing^ 
or  ten  years  for  mining  purposes  in  such 
quantities  and  upon  such  terms  and  condi- 
tions as  the  agent  in  charge  of  such  reser- 
vation may  recommend,  subject  to  the  ap- 
proval of  the  Secretary  of  the  Interior.'^ 
Comp.  SUt.  1913,  §  4218. 

The  act  of  1905  recognized  the  oil  com* 

1  It  is  provided  by  §  7338,  Revised  Lawa 
of  1910,  that  "ever^  public  service  corpora- 
tion organized,  existing  or  doing  business 
in  this  state  shall  on  or  before  the  last  day 
of  February  of  each  year  return  sworn  list* 
or  schedules  of  its  taxable  property  aa 
hereinafter  provided,  or  as  may  be  required 
by  the  State  Board  of  Equalization,  and 
such  property  shall  be  listed  with  reference 
to  amount,  kind  and  value  on  the  first  day 
of  February  of  the  year  in  which  it  la 
listed;  and  said  property  shall  be  subject 
to  taxation  for  state,  county,  municipal, 
public  school  and  other  purposes,  to  the 
same  extent  as  the  real  and  personal  prop- 
erty of  private  persons." 

240  U.  8. 


ins. 


INDIAN  TERRITORY  ILLUMINATING  OIL  CO.  ▼.  OKLAHOMA.     624-626 


pany  as  the  owner  by  aBsignment  of  the 
lease,  which  assignment  was  approved  by 
the  Secretary  of  the  Interior,  and  extended 
the  lease  for  a  period  of  ten  years  from 
March  16,  1906,  with  all  the  conditions  of 
the  original  lease  except  that  from  and  aft- 
er that  date  the  royalty  to  be  paid  on  gas 
should  be  $100  per  annum  on  each  gas  well 
instead  of  $60,  as  provided  in.  the  lease, 
and  except  that  the  President  of  the  United 
States  should  determine  the  amount  of  roy- 
alty to  be  paid  to  alL 

The  state  opposes  the  contentions  of  the 
oil  company  and  asserts  that  the  lease  was 
"not  a  grant  of  any  authority,  franchise, 
or  privilege  to  any  particular  person  or  cor- 
poration, and  is  merely  a  permit  'to  the 
Osage  Tribe,  authorizing  such  tribe  to  lease 
to  any  person  or  any  number  of  persons 
upon  the  approval  of  such  lease  contract  by 
the  Secretary  of  the  Interior."  It  further 
asserts  that  the  oil  company  merely  occu- 
pied "the  position  of  an  independent  con- 
tractor, acting  for  itself  and  in  its  own  be- 
half, in  a  contract  with  the  Osage  Indian 
Tribe,"  and  that  therefore  the  relation  of 
principal  and  agent  between  it  and  the  gov- 
ernment did  not  exist. 

A  statement  of  the  case  is  as  follows: 
The  oil  company  made  a  sworn  return  of 
what  it  considered  the  fair  cash  value  of 
that  part  of  its  property  engaged  in  the 
public  service  at  $63,836.10.  The  State 
Board  of  Equalization,  after  a  hearing,  in- 
creased the  valuation  to  $638,360,  the  basis 
of  the  order  of  the  Board  being  that  the 
oil  company  was  not  protected  from  taxa- 
tion by  the  lease  from  the  Indians.  Under 
the  procedure  of  the  state,  the  [525]  oil 
company  appealed  from  that  order  to  the 
supreme  court  of  the  state. 

In  the  latter  court  a  referee  was  appoint- 
ed to  take  testimony  and  report  his  find- 
ings of  fact  and  conclusions  of  law.  He 
duly  reported  the  facts  and  from  them  al- 
so reported  as  a  conclusion  of  law  that  the 
oil  company  was  "liable  to  taxation  by  the 
state  of  Oklahoma  for  the  full  value  of  its 
property,  tangible  and  intangible, — that  is, 
for  the  sum  of  $600,000;"  and  that  it  was 
"not  exempt  from  taxation  upon  the  theory 
that  it  is  a  Federal  agent,  or  that  it  holds  ' 
a  franchise  from  the  Federal  government." 
And  he  recommended  that  judgment  be  en- 
tered fixing  the  assessment  of  the  oil  com- 
pany's property  for  taxation  for  the  year 
1011  at  $447,169.98,  this  being  the  differ- 
ence between  the  total  value  of  all  the  prop- 
erty and  the  amount  ($62,830.02)  locally 
assessed. 

The  report  was  confirmed,  the  court  ad- 
judging that  the  property  of  the  oil  com- 
pany be  assessed  aa  recommefided  by  the 
referee. 
••  L.  ed. 


The  question  in  the  case  seems  to  be  a 
simple  one.  It  is  g^ven  some  complexity 
by  the  opinions  of  the  court  on  the  hearing 
and  rehearing,  which  require  some  recon- 
ciliation. It  appears  from  the  findings  of 
the  referee  that  on  March  16,  1896,  the 
Osage  Nation  of  Indians  in  Oklahoma  ter- 
ritory entered  into  a  contract  with  one  Ed- 
win B.  Foster,  by  the  terms  of  which  Fos- 
ter had  a  blanket  lease  upon  the  Osage  In- 
dian Reservation  for  the  sole  purpose  of 
prospecting  and  drilling  wells  and  mining 
and  producing  petroleum  and  natural  gas 
only.  The  lease  was  for  a  term  of  ten  years, 
and  was  approved  by  the  Secretary  of  the 
Interior.  By  an  act  passed  March  3,  1906, 
Congress  extended  the  lease  as  to  680,000 
acres  for  ten  years.  The  lease  has  therefore 
expired.  Prior  to  its  extension  in  1906,  the 
lease  was  assigned  to  the  oil  company. 

The  oil  company  has  sublet  to  more  than 
one  hundred  persons  and  corporations  and 
the  operations  upon  most  [526]  of  the 
lands  covered  by  the  lease  have  been  and 
are  conducted  by  sublessees.  A  small  por- 
tion, the  amount  not  appearing,  is  oper- 
ated by  the  company. 

By  the  terms  of  the  lease  as  extended,  the 
sublessees  are  required  to  pay  a  royalty  of 
I  of  the  oil  produced  upon  the  property, 
of  which  A  goeB  to  the  company  and  A  to 
the  Indians,  the  payments  on  behalf  of  the 
latter  being  made  to  the  Indian  Agency 
under  and  by  virtue  of  the  rules  and  regu- 
lations of  the  Department  of  the  Interior. 

The  oil  company  has  laid  pipe  lines  upon 
the  leased  lands  for  conveying  natural  gas, 
and  it  has  been  its  practice  to  furnish  gas  to 
the  sublessee  for  use  as  fuel  for  their  drill- 
ing and  pumping  operations  at  a  flat  rate, 
the  amount  of  which  is  not  disclosed.  The 
company  also  furnished  gas  during  1911 
for  domestic  consumption  to  the  residents 
of  Bigheaxt  and  Avant,  two  small  towns  in 
which  it  had  no  franchise,  in  the  Osage  Na- 
tion, adjacent  to  the  pipe  lines  of  the  com- 
pany. It  also  furnished  gas  to  a  local  cor- 
poration in  the  city  of  Bartlesville,  which 
company  held  a  franchise  for  and  was  en- 
gaged in  the  business  of  selling  gas  to  the 
residents  of  that  city,  and  also  to  a  local 
distributing  company  at  the  town  of  Oche- 
lata  for  use  in  the  business  of  the  latter 
company  in  selling  gas  to  the  inhabitants 
of  that  town. 

By  the  terms  of  the  contract  with  the 
Osage  Indians  the  company  was  required 
to  furnish  gas  free  to  the  Osage  citizens 
for  use  in  the  public  institutions  of  the 
Osages  under  certain  conditions  named. 

The  oil  company  is  primarily  engaged  in 
the  business  of  oil  production,  and  its  oper- 
ations in  the  gas  business  are  conducted  as 
an  incident  to  the  development  of  the  oil 

781 


626-620 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Ooi.  Temm^ 


territoiy  and  the  production  of  oil,  and, 
to  aome  extent,  as  a  matter  of  accommoda- 
tion to  the  citizens  of  Bigheart  and  Avant, 
and  other  persons  residing  along  the  com- 
pany's  pipe  lines. 

[527]  In  1911  the  company  made  a 
sworn  return  of  $63,835.10  as  the  actual 
cash  value  of  that  part  of  its  property  en- 
gaged in  the  public  service  by  reason  of 
the  gas  business  transacted  by  the  com- 
pany. This  valuation  was  raised  by  the 
Board  of  Equalization  to  $538,350.  Cer- 
tain of  the  company's  property  was  re- 
turned to  local  assessors  and  assessed  at 
$52,830.02.  All  of  its  property  is  situated 
in  Osage  and  Washington  counties,  Okla- 
homa, and  the  total  value  of  its  stock,  in- 
cluding all  its  property,  tangible  and  intan- 
gible, on  February  1,  1011,  was  $500,000. 

The  property  returned  to  the  Board  of 
Equalization  and  to  the  local  assessors  did 
not  include  the  lease,  subleases,  contracts, 
and  franchises  of  the  company,  but  only 
its  physical  property,  it  being  contended 
by  the  company  that  such  lease,  subleases, 
contracts,  and  franchises  were  not  subject 
to  taxation. 

The  total  value  of  the  company's  property 
of  every  kind  located  in  Oklahoma  over  and 
above  the  amount  locally  assessed  was 
$447,169.08  on  February  1,  1911. 

The  gas  business  of  the  company  has  not 
been  profitable,  but  has  been  and  is  valu- 
able as  an  adjunct  to  its  oil  operations. 

Against  the  confirmation  of  the  report  of 
the  referee  the  court  said  that  the  dil  com- 
pany made  four  contentions:  (1)  That  it 
was  not  a  public  service  corporation  and 
that  the  Board  of  Equalization  was  without 
authority  to  assess  its  property.  (2)  That 
its  oil  and  gas  leases  were  not  property  used 
in  any  public  service  rendered  by  it.  (3) 
That  the  leases  were  not  subject  to  taxa- 
tion in  the  hands  of  the  lessee  or  his  as- 
signs. (4)  That  in  exercising  rights  under 
the  laws  and  by  the  act  of  Congress  extend- 
ing the  lease  the  oil  company  was  a  Feder- 
al agency,  or  exercised  a  privilege  or  fran- 
chise granted  by  the  Federal  government, 
and  that  the  lease,  therefore,  was  not  sub- 
ject to  taxation. 

The  court  held:  (1)  that  the  company 
was  a  public  service  corporation;  (2)  that 
the  Board  of  Equalization  [628]  had  the 
power  to  assess  to  the  company  other 
property  than  that  used  in  connection  with 
public  service;  (3)  that  the  oil  and  gas 
lease  was  property  and  must  be  assessed 
in  the  name  of  the  owner  of  the  lease,  and 
not  in  the  name  of  the  lessor;  and  (4)  that 
by  reason  of  the  act  of  Congress  of  1005 
the  gas,  oil,  and  other  minerala  under  the 
lands  remained  the  property  of  the  Osage 
Tribe,  and  that  the  power  of  Congresa  over 
782 


the  property  oould  not  be  questioned.  And^ 
distinguishing  between  the  property  of  a 
Federal  agent  and  the  operations  of  such 
agent,  it  was  held  "that  the  tax  sought  to 
be  levied  was  not  invalid  because  sought  to 
be  levied  upon  a  Federal  agency  or  upon  a 
franchise  granted  by  the  Federal  govern- 
ment; or  because  it  interferes  with  the 
power  of  Congress  to  regulate  commerce 
between  the  Indian  Tribes." 

On  rehearing  the  court  modified  or 
changed  its  view.  The  changes  and  the 
reasons  for  them  are  not  easy  to  represent. 
In  the  first  opinion  the  report  of  the  referee 
was  confirmed  and  it  was  adjudged  "that 
the  property  of  appellant  [oil  company]  be 
assessed  as  recommended  by  the  referee  in 
his  report."  In  the  second  opinion  the  re- 
port of  the  referee  is  again  confirmed  and 
the  estimate  of  the  property  of  the  company 
at  $500,000  held  to  be  sustained  by  the  tes- 
timony taken  by  the  referee;  but  the  rea- 
soning of  the  opinions  is  quite  different. 
For  a  statement  of  the  difference  we  may 
adopt  for  convenience  that  of  the  Attorney 
General  of  the  state.  He  says:  "... 
the  essential  difference  between  the  original 
opinion  and  the  opinion  on  rehearing  being 
that  in  the  original  opinion  it  was  held 
that  oil  and  gas  leases,  as  such,  constitute 
property  as  defined  by  the  Constitution  and 
statutes  of  the  state  of  Oklahoma,  and  as 
such  was  subject  to  taxation  by  said  state» 
while  the  opinion  on  rehearing  held  that 
oil  and  gas  leases,  as  such,  were  not  de- 
fined as  personal  property  subject  to  taxa- 
tion under  the  statutes  of  Oklahoma,  nor 
by  the  Constitution  of  said  state,  and,  there- 
fore, oould  not  [529]  be  taxed  as  personal 
property;  but  that  under  the  statutes  the 
market  value  of  the  capital  stock  of  said 
corporation  oould  be  taken  into  considera- 
tion by  the  State  Board  of  Equalization  in 
assessing  the  properties  of  said  company* 
and  could  be  properly  considered  as  an  ele- 
ment of  vakie  in  assessing  said  properties, 
and  that  the  evidence  taken  before  the  ref- 
eree as  to  the  amount  of  the  capital  stock 
of  said  company  and  the  market  value 
thereof,  togeUier  with  its  tangible  assets, 
was  sufficient  to  sustain  the  assessment 
made  by  the  State  Board  of  Equalization." 

It  is  clear  that  the  Board  of  Equaliza- 
tion and  the  referee  sustaining  its  action 
proceeded  upon  the  consideration  that  the 
leases  constituted  taxable  property,  and  the 
first  opinion  of  the  court,  confirming 
the  report  of  the  referee,  had  its  basis  in  the 
same  consideration.  That  consideration 
was  regarded  as  untenable  in  the  second 
opinion,  but  the  court  adhered  to  its  for- 
mer conclusion;  that  is,  that  the  report  of 
the  referee  should  be  confirmed.  The  Board 
of  Equalization,  the  referee,  and  the  court 

240  V.  8. 


1015. 


AGKERLIND  t.  UNITED  STATES. 


62fr-581 


in  its  first  opinion^  regarded  the  leases  as 
taxable  entities.  In  the  second  opinion  it 
was  held  that  thej  could  not  be  so  regarded 
onder  the  Constitution  of  the  state,  but  the 
court  gaTS  them  effective  representation  in 
the  capital  stoclc  of  the  company,  and  the 
latter  then  was  taken  as  evidence  that  the 
value  of  the  property  of  the  oil  company 
was  $500,000.  Whether  the  Ck)nstitution  of 
the  state  permits  this  accommodation  we 
are  not  called  upon  to  say.  We  are  clear 
it  cannot  be  permitted  to  relieve  from  the 
restraints  upon  the  power  of  the  state  to 
tax  property  under  the  protection  of  the 
Federal  government.  That  the  leases  have 
the  immunity  of  such  protection  we  have 
decided. 

In  Choctaw,  O.  k.  O.  R.  Co.  ▼.  Harrison, 
235  U.  S.  292,  59  L.  ed.  234,  35  Sup.  Ct. 
Rep.  27,  the  railroad  company  was  the  les- 
see of  certain  coal  mines,  obligating  itself 
to  take  out  annually  specified  amounts  of 
coal  and  to  pay  a  stipulated  royalty.  It 
proceeded  actively  [630]  to  develop  the 
mines,  either  directly  or  through  its  agent, 
and  took  therefrom  large  quantities  of  coal 
and  fully  complied  with  the  obligations  as- 
sumed. The  state  of  Oklahoma  attempted 
to  tax  the  company  under  the  law  of  the 
state  requiring  every  person  engaged  in  the 
mining  or  production  of  coal  to  make  a  re- 
port of  the  kind  and  amount  produced  and 
the  actual  cash  value  thereof,  and  at  the 
same  time  pay  to  the  state  treasurer  a 
gross  revenue  tax  in  addition  to  the  taxes 
levied  upon  an  ad  valorem  basis  upon  such 
mining  property,  equal  to  2  per  cent  of  the 
gross  receipts  from  the  total  production. 
The  law  was  held  to  be  invalid  as  attempt- 
ing to  tax  an  instrumentality  through 
which  the  United  States  was  performing 
its  duty  to  the  Indians. 

The  application  of  the  case  to  that  at  bar 
needs  no  assisting  comment.  A  tax  upon 
the  leases  is  a  tax  upon  the  power  to  make 
them,  could  be  used  to  destroy  the  power  to 
make  them.  If  they  cannot  be  taxed  as  en- 
tities they  cannot  be  taxed  vicariously  by 
taxing  the  stock,  whose  only  value  is  their 
value,  or  by  taking  the  stock  as  an  evidence 
or  measure  of  their  value,  rather  than  by 
directly  estimating  them  as  the  Board  of 
Equalisation  and  the  referee  did.  The  as- 
sessment by  the  Board  was  of  the  leases  as 
objects  of  taxation,  having  no  immunity 
under  Federal  law.  This  was  repeated  by 
the  referee,  and  he  made  it  clear  that  the 
asBsasment  was  so  constituted.  There  was, 
he  reports,  a  local  assessment  by  the  as- 
sessors of  Osage  and  Washington  counties 
of  $52,830.02,  and  that  the  total  value  of 
the  oil  company's  "property  of  every  kind 
located  in  Oklahoma,  over  and  above  the 
amount  locally  assessed,  was  $447,159.98,  on 
«0  Ii.  ed. 


February  1,  1911,**  and  he  recommended  a 
judgment  for  the  latter  amount.  And,  we 
repeat,  there  is  no  doubt  of  what  elements 
it  was  composed.  The  gas  business,  he  re- 
ports, was  not  "of  itself  profitable,"  but 
was  "valuable  as  an  adjunct  to  the  compar 
ny's  oil  operations."  He  was  explicit  as  to 
what  [531]  the  stodc  of  the  company  rep- 
resented, saying  that  "the  total  value  of 
said  company's  stodc,  including  all  its  prop- 
erty, tangible  and  intangible,  on  the  first 
day  of  February,  1911,  was  $500,000."  It  is 
manifest,  therefore,  wh^i  the  court  took 
the  stock  as  evidence  of  the  value  of  the 
property  of  the  company  the  court  took  it 
as  evidence  of  the  value  of  the  leases,  and 
thereby  justified  their  assessment  and  taxa- 
tion. This,  for  the  reasons  we  have  stated, 
was  error. 

It  follows  from  these  views  that  the  as- 
sessment against  the  oil  company,  so  far 
as  it  included  the  leases,  whether  as  sepa- 
rate objects  of  taxation  or  as  represented 
or  valued  by  the  stock  of  the  company,  is 
invalid. 

Judgment  reversed  and  case  remanded 
for  further  proceedings  not  inconsistent 
with  this  opinion. 


CARL  U.  ACKERLIND,  Administrator  of 
Erik  O.  Lind,  Deceased,  Appt., 

V. 

UNITED  STATES. 

<6ee  S.  C.  Reporter's  ed.  531-537.) 

Reformation  of  Imttmments  —  mistake 
—  contract  with  government. 

1.  A  contract  with  the  United  States, 
formally  prepared  by  the  Bureau  of  Supplies 
and  Accounts,  conformably  to  U.  6  Rev. 
SUt.  S  3744,  Comp.  Stat.  1913,  §  6895,  upon 
a  requisition  by  the  Bureau  of  Equipment, 
should  be  reformed  by  the  court  of  claims 
bv  striking  out  a  clause  which  the  Bureau 
01  Equipment,  in  settling  the  terms  of  the 
contract,  had  agreed  uiould  be  omitted 
from  the  specifications,  but  which,  through 
a  clerical  inadvertence,  was  left  in  the  reoui- 
sition  and  embodied  in  the  contract  as  for- 
mally drawn  and  signed, —  although  the 
contractor  may  have  signed  without  care- 
ful reading. 

[For  other  cases,  see  Reformation  of  Instrn- 
ments,  II.  e.,  in  Digest  Snp.  Ct  1908.] 

Appeal  •*  from  court  of  claims  •*  re- 
manding for  further  proceedings. 

2.  The  failure  of  the  court  of  claims 
to  find  in  terms  certain  facts  which  it  has 
assumed  to  be  true  in  the  decision  that  it 
delivered  does  not  necessitate  sending  the 
case  back  for  further  proeeedings,  where 
such  facts,  if  material,  are  not  controverted. 
[For  other  eases,  see  Appeal  and  Brror,  IZ. 

1,  in  Digest  Sup.  Ct  1908.] 

78S 


533 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Teem, 


Appeal  —  from  court  of  claimfl  —  ne- 
cessity of  finding  of  fact. 

3.  A   fact  which   the  court  of  claims 
states  that  it  does  not  find  stands  unproved 
in  the  Federal  Supreme  Court  on  appeal. 
[For  other  cases,  see  Appeal  and  Brror,  V.  o, 

in  Digest  Sup.  Ct.   1908.] 

Commerce  —  tonnage  dues  —  exemp- 
tion. 

4.  Vessels  used  by  a  contractor  in  the 
performance  of  his  contract  with  the  Unit- 
ed States  for  the  transportation  of  coal  to 
Manila  bay  are  not  "employed  in  the  serv- 
ice of  the  government"  within  the  meaning 
of  the  provision  of  the  Philippine  Islands 
tariff  act  of  March  3,  1005  (33  Stat,  at  L. 
076,  chap.  1408),  §  15,  exempting  vessels 
80  employed  from  the  payment  of  tonnage 
dues. 

[For  other  casen*   see   Commerce*   VII.   a.   In 
Digest  Sup.   Ct.   1008.] 

[No    203.] 

Argued  March  15,  1016.     Decided  April  3, 

1016. 

APPEAL  from  the  Court  of  Claims  to  re- 
view a  judgment  granting  a  portion  of 
the  relief  demanded  under  a  contract  with 
the  United  States  for  the  transportation  of 
coal  to  Manila  bay.    Reversed. 

See  same  case  below,  40  Ct.  CI.  635. 
The  facts  are  stated  in  the  opinion. 

Mr.  George  A.  King  argued  the  cause, 
and,  with  Mr.  William  B.  King,  filed  a  brief 
for  appellant: 

U.  S.  Bev.  Stat.  §  3744,  Comp.  Stat.  1013, 
§  6805,  requiring  written  contracts,  does 
not  prevent  the  reformation  of  a  contract 
where  a  clear  mistake  has  been  made. 

Walden  v.  Skinner,  101  U.  S.  577,  25  L. 
ed.  063;  Harvey  v.  United  States,  105  U.  S. ! 
671,  26  L.  ed.   1206;   ^Etna  Constr.  Co.  v. 
United  States,  46  Ct.  CI.  113;  McManus  v. 
Philadelphia,  211  Pa.  304,  60  Ail.  1001. 

Where  the  agreement  as  reduced  to  writ-  j 
ing  omits  or  contains  terms  or  stipulations 
contrary  to  the  common  intention  of  the 
parties,  the  instrument  will  be  corrected  so 
as  to  make  it  conform  to  their  real  intent. 
The  parties  will  be  placed  as  thej  would 
have  stood  if  the  mistake  had  not  occurred. 

Hearne  v.  New  England  Mut.  M.  Ins.  Co. 
20  WaU.  488,  400,  401,  22  L.  ed.  305,  306, 
307;  Snell  ▼.  Atlantic  F.  A.  M.  Ins.  Co.  08 
U.  S.  85,  25  L.  ed.  52;  Griswold  v.  Hazard, 
141  U.  8.  260,  35  L.  ed.  678,  11  Sup.  Ct.  Bep. 
972,  900;  Walden  v.  Skinner,  101  U.  S. 
677,  25  L.  ed.  063;  Thompson  v.  Phenix  Ins. 
Go.  186  U.  S.  287,  34  L.  ed.  408,  10  Sup.  Ct. 
Bep.  1010. 

Belief  is  not  barred  in  such  a  case,  either 

hj  failure  to  read  the  contract  (Equitable 

Safety  Ins.  Co.  v.  Hearne,  20  Wall.  404, 

496,  22  L.  ed.  808,  300;  West  ▼.  Suda,  60 

Conn.  62,  $6  AtL  1015,  1  Am.  Keg.  Rep. 

f34 


578),  or  by  reading  it  with  misunderstand- 
ing of  its  purport  (Penfield  ▼.  New  Rochelle, 
18  App.  Div.  86,  45  N.  Y.  Supp.  460, 
affirmed  in  160  N.  T.  697,  65  N.  £.  1098). 
It  is  sufficient  that  the  contract  as  written 
departed  from  the  mutual  intention  of  the 
parties. 

The  vessel  was  employed  in  the  servios 
of  the  government  of  the  United  States. 

United  States  v.  Morris,  14  Pet.  464,  10 
L.  ed.  543;  The  Alexander,  8  Mason,  176, 
Fed.  Cas.  No.  165. 

Assistant  Attorney  General  Thompson 
argued  the  cause  and  filed  a  brief  for  ap- 
pellee : 

The  contract  should  not  be  reformed,  as 
the  alleged  oral  agreement  was  merged  In 
the  written  instrument. 

Dermott  v.  Jones,  2  Wall.  1,  7,  17  L.  sd. 
762,  764;  New  Orleans-Belize,  Boyal  Mail  k 
C.  A.  6.  S.  Co.  ▼.  United  SUtes,  289  U.  & 
202,  ante,  227,  36  Sup.  Ct  Bep.  76. 

The  reformation  desired  would  maks  a 
different  contract  from  the  one  executed, 
and  hence  is  contrary  to  U.  8.  Bst.  Stat 
§  3744,  Comp.  Stat  1913,  f  8896. 

United  SUtes  v.  New  York  ft  P.  B.  &  & 
Co.  239  U.  S.  88,  ante,  161,  86  Sup.  Ct  Bsp. 
41 ;  Clark  v.  United  States,  96  U.  &  639,  2A 
L.  ed.  518. 

The  vessels  employed,  being  in  the  servies 
of  appellant,  were  not  exempt  from  ton- 
nage dues. 

New  Orleans-Belize  Boyal  Mail  ft  a  A  6. 
S.  Co.  V.  United  States,  239  U.  S.  202,  2M» 
ante,  227,  220,  36  Sup.  Ct  Bep.  76. 

Mr.  Justice  Holmes  delivered  the  opin- 
ion of  the  court: 

llie  main  point  at  issue  in  this  ease  ii  s 
claim  for  the  reformation  of  a  contraet  for 
the  imnsportation  of  coal  from  certain 
ports  in  the  United  States  to  Manila  bajr* 
It  is  demanded  by  the  claimant  upon  tlie 
following  facts :  The  terms  of  such  contraeti 
are  settled  by  the  Bureau  of  Equipment 
A  requisition  embodying  the  trannetion 
is  then  sent  to  the  Bureau  of  Suppliei 
and  Accounts,  ,  which  prepares  a  fonul 
contract  in  writing  in  accordance  with  Ber. 
Stat.  §  3744,  Comp.  Stat  1918,  f  6896.  Ikii 
section  makes  it  the  duty  of  the  Seeretaritf 
of  War,  of  the  Navy,  and  of  tht  laterior 
"to  cause  and  require  every  oontraefc  w^ 
by  them  severally  on  behalf  of  thi  gov* 
ernment,  or  by  their  offioers  undsr  then 
appointed  to  niake  such  oontzmeti^  to  be  zt- 
duced  to  writing,  and  signed  Igr  tht  cos* 
tracting  parties."  In  the  present  case  tki 
printed  specifications  up<m  whieh.  pnposili 
were  asked  contained  the  elause:  "^ 
further  that  in  the  event  of  a  eargo  arriv- 
ing   before    the    preosAiflig    saigo   is  dit- 

i49  V.  8> 


1915. 


ACKERLIND  v.  UNITED  STATES. 


533-536 


charged,  twenty-four  (24)  hours'  notice  of 
arrival  shall  be  given  after  discharge  of 
each  cargo  before  lay  days  oommenoe  in 
case  of  that  next  arriTing."  The  contractor 
[534]  objected  to  this  clause  upon  satis- 
factory grounds,  and  it  was ,  agreed 
that  it  should  be  omitted.  Through  a 
clerical  inadvertence,  however,  the  clause 
w|ts  left  in  the  requisition  sent  to 
the  Bureau  of  Supplies  and  Accounts, 
and  the  contract  was  drawn  embody- 
ing it,'  and  signed  by  the  contractor  on 
March  2,  1905,  without  careful  reading,  the 
precise  form  having  been  settled,  as  we  have 
said.  This  mistake  was  discovered  upon 
the  arrival  of  several  vessels  at  Cavite,  on 
June  17,  1905,  the  attention  of  the  Bureau 
of  Equipment  was  called  to  it,  and  the 
Bureau  of  Supplies  and  Accounts  was  re- 
quested to  make  the  necessary  change,  on 
June  23.  That  Bureau  notified  the  con- 
tractor that  the  contract  was  amended  by 
the  omission  of  the  clause.  The  govern- 
ment refuses  to  recognize  the  amendment, 
the  court  of  claims  dismissed  the  claim  for 
reformation  (49  Ct.  CI.  635),  and  the  claim- 
ant appealed  to  this  court. 

It  hardly  is  denied  and  cannot  be  denied 
successfully  that  in  a  proper  case  reforma- 
tion of  a  contract  may  be  required  against 
the  United  States  notwithstanding  the  stat- 
ute that  we  have  quoted,  as  it  may  be  re- 
quired notwithstanding  the  provisions  of 
the  statute  of  frauds.  William  Cramp  k 
Sons  Ship  &,  Engine  Bldg.  Co.  v.  United 
States,  239  U.  S.  221,  230,  ante,  238,  242,  36 
Sup.  Ct.  Rep.  70.  It  is  the  contract  that  has 
been  made  through  the  agent  authorized  to 
make  it  that  is  to  be  reduced  to  writing, 
and  if  a  clerk  or  some  other  agent  makes  a 
mistake  we  perceive  no  reason  why  the  writ- 
ing should  not  be  made  to  conform  to  the 
fact.  The  contract  is  not  unlawful  in  the 
preliminary  stage,  or  even  void  in  a  strict 
sense,  but  simply  not  to  be  enforced  against 
the  United  States.  United  States  v.  New 
York  A  P.  R.  8.  S.  Co.  239  U.  S.  88,  ante, 
161,  36  Sup.  Ct.  Rep.  41.  The  contract  is 
made  with  the  principal  and  the  several 
steps  are  to  be  regarded  as  if  they  all  had 
been  taken  by  him.  Here  the  United  States 
made  the  contract  by  the  Bureau  of  Equip- 
ment, and  by  its  mouth  requested  the  Bureau 
of  Supplies  and  Accounts  to  put  it  on  paper 
and  sign  it.  [535]  What  the  Bureau  of  Sup- 
plies and  Accoimts  understood  is  immaterial; 
it  simply  followed  the  requisition  of  the  Bu- 
reau of  Equipment.  There  was  a  mistake 
made  by  a  clerk  in  not  striking  out  a 
printed  clause  from  that  requisition.  It 
is  as  if  a  principal,  after  making  the  agree- 
ment, had  taken  a  printed  form  and  for- 
gottoi  to  draw  his  pen  through  the  words. 
The  failure  of  the  contractor  to  read  before 


•0  li.  ed. 


I  signing  an  instrument  the  terms  of  which 
he  had  seen  in  print  is  not  enough  to  debar 
him  from  seeking  relief.  Equitable  Safety 
Ins.  Co.  V.  Heame,  20  WalL  494,  22  L.  ed. 
398. 

The  only  ground  for  hesitation  is  the 
purely  technical  one  that  the  court  of  claims, 
acting  before  the  decision  of  William  Cramp 
&  Sons  Ship  &  Engine  Bldg.  Co.  v.  United 
States,  239  U.  S.  221,  232,  ante,  238,  242,  36 
Sup.  Ct.  Rep.  70,  and  probably  uncertain 
whether  to  send  up  facts  or  evidence,  has 
not  found  in  terms  certain  of  the  facts  that 
we  have  stated.  It  has  found  that  the  act- 
ing chief  of  the  Bureau  of  Equipment  wrote 
an  official  letter  stating  them,  and  it  has 
assumed  them  to  be  true  in  the  decision  that 
it  delivered.  We  understand  that  they  are 
not  controverted  if  material,  and  therefore 
think  it  unnecessary  to  send  the  case  back 
for  further  findings.  The  decree  of  the  court 
of  claims  upon  this  part  of  the  case  will 
be  reversed. 

The  next  question  that  arises  concerns  the 
amount  of  demurrage  to  be  allowed  under 
the  contract  as  reformed.  Undisputed 
terms  of  the  instrument  were:  "6.  The 
government  guarantees  but  twenty  (20)  feet 
of  water  at  coaling  wharf,  Sangley  Point. 
7.  Cargo  to  be  discharged  at  the  rate  of 
four  hundred  (400)  tons  per  day  for  shch 
part,  of  cargo  as  may  be  necessary  to  dis- 
charge in  the  bay  to  enable  a  vessel  of  deep 
draft  to  go  to  the  wharf,  and  six  hundred 
(600)  tons  per  day  at  wharf,  Sundays  and 
legal  holidays  excepted  in  each  instance,  or 
the  government  pays  demurrage  at  the  rate 
of  eight  (8)  cents  per  ton  per  day  on  the 
net  registered  tonnage  of  the  vessel  for  any 
detention  caused  by  the  government  (through 
fault  of  [536]  its  own)  not  dis- 
charging at  the  above-named  rates,  it 
being  understood  that  twenty-four  (24) 
hours'  notice  of  arrival  of  each  cargo 
under  this  charter  shall  be  given  the 
conunandant  before  lay  days  commence." 
(Then  followed  the  clause  stricken  out  by 
reformation.)  "13.  While  an  average  daily 
discharge  of  four  hundred  (400)  tons  in  the 
stream  and  six  hundred  (600)  tons  at  the 
wharf  is  guaranteed,  the  conunandant  will 
be  instructed  to  discharge  the  cargo  as  ex- 
peditiously as  practicable  with  a  view  of 
exceeding  these  rates  without  working  over- 
time." It  is  found  that  one  vessel  went  to 
the  wharf  drawing  22  feet  and  6  inches,  and 
it  is  argued  that  if  one  could,  another  could, 
and  that,  under  paragraph  13,  just  quoted, 
the  other  vessels  should  have  been  docked 
at  that  draft,  and  thus  have  been  enabled 
to  deliver  200  tons  more  a  day, — that  being 
the  difference  between  wharf  and  stream. 
If  the  argument  is  correct,  it  would  give  the 
claimant    $2,217.44    demurra|[e    under    the 


50 


785 


636-IMI8 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Temm, 


oontraet  as  refonned.  But  at  to  thia,  it  ia 
enough  to  lay  that  the  court  of  elaima 
atated  that  it  did  not  find  the  fact  of  gen- 
erally ayailable  depth  of  over  20  feet,  and 
therefore  it  gtanda  unproved  in  this  court. 

The  only  other  point  argued  ia  that  the 
veiaela  ooncemed  ahould  not  have  heen  re- 
quired to  pay  tonnage  dues  becauae  the 
Philippine  Tariff  act  of  March  3, 1905,  chap. 
1408,  I  15,  33  Stat,  at  L.  928,  976,  exempts 
from  them  "a  vessel  belonging  to  or  em- 
ployed in  the  service  of  the  government  of 
the  United  States."  But  it  is  a  sufficient 
answer  that  the  words  do  not  mean  every 
vessel  that  carries  a  ton  or  a  cargo  of  ooal 
for  the  government,  but  only  one  that  is 
under  the  control  of  the  United  States,  as 
explained  in  New  Orleans-Belize  Royal  Mail 
k  C.  A.  S.  S.  Co.  V.  United  States,  239  U.  S. 
202,  206,  ante,  227,  220,  36  Sup.  Ct  Rep.  76. 
The  ground  of  the  exemption  is  to  prevent 
interference  with  government  agencies.  But 
an  ind^endent  carrier,  such  as  the  con- 
tractor was  in  this  case,  is  not  such  an 
agency,  and  is  not  employed  in  the  service  of 
the  [537]  government  within  the  meaning 
of  the  law.  See  Baltimore  Shipbuilding  & 
Dry  Dock  Go.  v.  Baltimore,  195  U.  S.  375, 
382,  49  L.  ed.  242,  244,  25  Sup.  Ct.  Rep.  50. 
Upon  the  last  two  points  the  Judgment  of 
the' Court  of  Claims  is  affirmed. 

Judgment  reversed. 

Mr.  Justice  McReynolds  took  no  part  in 
the  oonsideration  and  decision  of  this  case. 


FRANK  O.  FARNHAM,  Appt., 

V. 

UNITED  STATES. 

(See  S.  0.  Rq>orter's  ed.  537-540.) 

Claims  •— implied  oontraet— use  of  pat- 
ented invention. 

No  undertaking  on  the  part  of  the 
United  States  to  pay  the  patentee  of  an 
improvement  in  stamp  books  or  holders  for 
the  alleged  use  of  his  invention  can  be  im- 
plied so  as  to  be  within  the  cognizance  of 
the  oourt  of  daima,  where  the  government 
expressly  rejected  the  patentee's  suggestion 
that  it  adopt  his  device,  and  instead  be- 
ffan  the  manufacture  and  sale  of  a  stamp 
bode  designed  by  a  postal  official,  claiming 
that  such  book  was  not  covered  by  any 
previous  patent. 

[For  otber  cases,  see  Claims,  122-127:  United 
States,  VL  c  in  Digest  8a».  Ct.  1008.] 

[No.  107.] 

Argued  Maieh  2,  1916.    Deeided  April  8, 

1818. 
788 


APPEAL  from  the  Court  of  Claima  to  re- 
view a  Judgment  dismissing  the  peti- 
tion of  a  patentee  to  recover  upon  the  baaia 
of  an  implied  contract  for  the  alleged  uae 
by  the  government  of  hia  patented  inven- 
tion. Modified  by  directing  that  the  Judg- 
ment be  without  prejudice,  and,  as  so  modi- 
fied, affirmed. 

See  same  caae  below,  49  Ct.  CL  19. 

The  facts  are  stated  in  the  opinion. 

Messrs.  George  W.  Ramsey  siid  Hosea 
B.  Moulton  argued  the  cause  and  filed  a 
brief  for  appellant: 

There  was  an  implied  contract  on  the 
part  of  the  government  to  pay  for  the  use 
of  appellant's  invention. 

Boyden  v.  Burke,  14  How.  575,  14  L.  ed. 
548 ;  United  Stotes  v.  RusseN,  13  Wall.  823» 
20  L.  ed.  474;  United  States  v.  Great  Falls 
Mfg.  Co.  112  U.  S.  645,  28  L.  ed.  848,  5  Sup. 
Ct.  Rep.  306;  Cammeyer  v.  Newton,  94  U.  S. 
225,  24  L.  ed.  72;  Seymour  v.  Osborne,  11 
Wall.  516,  20  L.  ed.  33;  United  States  v. 
Bums,  12  Wall.  246,  20  L.  ed.  388;  James  v. 
Campbell,  104  U.  S.  356,  26  L.  ed.  786; 
Hollister  v.  Benedict  &  B.  Mfg.  Co.  113  U. 
S.  59,  28  L.  ed.  901,  5  Sup.  Ct.  Rep.  717; 
United  States  v.  Palmer,  128  U.  S.  262,  32 
L.  ed.  442,  9  Sup.  Ct.  Rep.  104;  McKeever  v. 
United  States,  14  Ct.  Q.  396;  United  States 
V.  Berdan  Firearms  Mfg.  Co.  156  U.  S.  552, 
39  L.  ed.  580, 15  Sup.  Ct.  Rep.  420;  United 
States  V.  Soci^  Anonyme  des  Anciens 
Etablissements  Call,  224  U.  S.  309,  56  L.  ed. 
778,  32  Sup.  Ct.  Rep.  479. 

Assistant  Attorney  General  Tbompson 
argued  the  cause  and  filed  a  brief  for  ap- 
pellee: 

There  was  no  implied  contract. 

Russell  V.  United  States,  182  U.  S.  516- 
530,  45  L.  ed.  1210-1215,  21  Sup.  Ct.  Rep. 
899 ;  Schillinger  v.  United  States,  155  U.  S. 
169,  39  L.  ed.  110,  15  Sup.  Ct.  Rep.  85. 

Mr.  Justice  Hughes  delivered  the  opin- 
ion of  the  court: 

The  claimant,  in  the  year  1906,  brought 
his  petition  to  recover  upon  the  basis  of  an 
implied  contract  for  the  alleged  use  by  the 
government  of  his  patented  invention,  con- 
sisting of  a  stamp  holder.  The  claim  waa 
for  profits  alleged  to  have  been  made  be- 
tween April  16,  1900,  and  June  30,  1905. 
Another  petition  waa  filed,  in  1911,  upon 
the  same  basis,  to  recover  profits  for  the 
period  between  June  30,  1905,  and  June 
30,  1910.  Motion  to  consolidate  the  two 
suits,  aa  involving  the  same  iasues,  waa 
granted.  Upon  hearing,  the  court  made 
findings  of  ^ct,  and  held  that  the  plaintiif 
waa  not  entitled  to  recover.    49  Ct.  CI.  19. 

840  U.  S. 


1915. 


FARKHAH  ▼.  UNITED  STATES. 


53»-5iO 


The  court  found  that,  under  date  of  Jan- 
nary  4,   1808,  Letters  Patent  No.   606,666 
had  been  issued  to  the  claimant  for  improve- 
ment in  stamp  holders.    Models  of  the  pro- 
posed   stamp    book    and    an    explanatory 
pamphlet  were  submitted  to  the  Third  As- 
sistant  Postmaster-General   with   the   sug- 
gestion   that    the    Postoffice    Department 
should  adopt  this  method  of  handling  and 
selling  stamps.     That  officer,  on  June  17, 
1808,  returned  the  books  to  the  claimant, 
saying:    "The  Department  does  not  deem  it 
expedient  to  sell  stamps  in  this  way."    The 
claimant,  on  July  14,  1808,  replied,  stating 
that  the  descriptive  pamphlet  and  the  model 
stamp  books  formerly  transmitted  did  not 
fully  show  the  invention,  and  that  he  re- 
quested  a  personal   interview.     Two   days 
later  the  government  responded  as  follows: 
"Your  plan  for  booking  and  selling  stamps 
is  well  understood;  your  explanation  of  it 
could  not  be  clearer;   but,  as  stated  in  a 
former  letter  to  you,  the  [530]  Department 
does  not  wish  to  suiopt  it."    In  June,  1800,  the 
adoption  of  the  claimant's  device  was  again 
suggested  to  the  Postoffice  Department,  and 
the  Department  replied  that  it  adhered  to 
its  former  decision.     On  July  1,  1800,  Ed- 
win C.  Madden  was  appointed  Third  Assist- 
ant Postmaster -General,  and  he  held  office 
until  March,  1007.    Soon  after  his  appoint- 
ment he  took  under  consideration  the  manu- 
facture and  sale  of  postage  stamp  books. 
He  designed,  without  actual  knowledge  of 
the  existence  of  the  claimant's  patent  or  of 
the    correspondence   with    the    Department 
relating  to  it,  the  stamp  book  now  in  de- 
partmental   use.     This    stamp    book    was 
transmitted  by  Mr.  Madden  to  the  Bureau 
of  Printing  and  Engraving  with  an  inquiry 
as  to  the  possibility  of  its  manufacture,  the 
details  of  manufacture  being  left  to  that 
Bureau.     It    prepared    plans    accordingly. 
After  the  public  announcement  that  the  De- 
partment would   begin   the  public   sale  of 
two-cent  stamps  in  book  form,  Mr.  Madden 
learned    for    the    first    time    that    it    was 
claimed  that  there  were  letters  patent  cover- 
ing the  proposed  stamp  book,  and  before 
iasuing  the  same  to  the  public  he  requested 
the  Assistant  Attorney  General  for  the  De- 
partment to  examine  all  such  claims  and 
letters  patent,  and  to  advise  him  whether 
hia  book  would  constitute  an  infringement. 
The    Assistant    Attorney   General    advised 
him  to  proceed  with  the  public  sale  as  con- 
templated; that  the  stamp  book  to  be  is- 
•aed  was  not  ooTered  by  any  previous  pat- 
vnta.     Both  he  and  Mr.  Madden  examined 
•0  l4.  ed. 


the  patents  of  the  claimant,  and  Mr.  Mad- 
den also  examined  the  correspondence  oa 
file.  From  the  beginning  the  latter  insisted 
that  the  invention  of  the  stamp  book  issued 
by  the  Department  was  his  own,  being  in- 
dependent of  the  claimant's  patent.  In 
March,  1000,  the  Third  Assistant  Postnuuh 
ter-General  addressed  a  letter  to  the  claim- 
ant's attorney,  expressly  asserting  that  the 
Department's  stamp  book  was  not  an  in- 
fringement. It  was  in  these  circumstances 
that  the  government  [540]  commenced  the 
manufacture  of  its  stamp  books  on  March 
26,  1000. 

It  is  apparent  that  these  facts  furnished 
no  basis  for  a  finding  of  implied  contract 
on  the  part  of  the  government  to  pay  for 
the  use  of  the  invention, — ^the  only  ground 
upon  which  the  petitions  were  cognizable  hi 
the  court  of  claims.  Schillinger  v.  United 
States,  155  U.  S.  163,  170,  30  L.  ed.  108, 
111,  15  Sup.  Ct.  Rep.  85;  United  States  t. 
Berdan  Fire-Arms  Mfg.  Co.  156  U.  S.  552» 
556,  30  L.  ed.  530,  531,  15  Sup.  Ct.  Rep. 
420;  Russell  v.  United  States,  182  U.  S. 
516,  530,  45  L.  ed.  1210,  1215,  21  Sup.  Ct. 
Rep.  800 ;  Crozier  v.  Fried.  Krupp  Aktienge- 
sellschaft,  224  U.  6.  200,  303,  304,  56  U 
ed.  771,  775,  776,  32  Sup.  Ct.  Rep.  488; 
United  States  v.  Soci4t4  Anonyme  dea 
Anciens  Etablissements  Call,  224  U.  S.  300, 
311,  56  L.  ed.  778,  780,  32  Sup.  Ct.  Rep. 
470.  In  this  view,  the  consolidated  peti- 
tion was  properly  dismissed  and  it  is  un- 
necessary to  consider  the  questions  whieh 
have  been  argued  with  respect  to  actual  nae 
and  the  validity  of  the  claimant's  patent. 
The  second  petition  related  to  a  period  ex- 
tending to  June  30,  1010,  thus  embracing 
five  days  after  the  approval  of  the  act  of 
June  25,  1010,  chap.  423,  36  Stat,  at  L.  851, 
Comp.  Stat.  1013,  §  0465,  permitting  the  re- 
covery from  the  government  of  reasonable 
compensation  in  cases  of  infringement. 
Crozier  v.  Fried.  Krupp  Aktiengesellschi^t^ 
224  U.  S.  200,  303,  304,  56  L.  ed.  771,  775, 
776,  32  Sup.  Ct.  Rep.  488.  This  petition, 
however,  like  the  first,  did  not  purport  to 
present  a  case  within  this  act,  but  waa 
rested  solely  upon  implied  contract.  Tho 
judgment,  however,  should  be  without  preju- 
dice to  the  presentation  of  any  claim  the 
petitioner  may  have  under  the  statute;  and 
with  this  modification  the  judgment  is  at* 
firmed. 

It  is  So  ordered. 

Mr.  Justice  McReynolds  took  no  part  la 
the  oonsideration  and  decision  of  this 'ease. 

7S7 


541 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TBBMf 


[541]  JONES  NATIONAL  BANK,  Plff.  in 

Err., 

V. 

CHARLES  E.  YATES,  D.  E.  Thompson,  and 
Louisa  Hamer,  Administratrix  of  the  Es- 
tate of  Ellis  P.  Hamer,  Deceased.  (No. 
163.) 

BANK  OF  STAPLEHURST,  Plff.  in  Err., 

V. 

CHARLES  E.  TATES,  D.  E.  Thompson,  and 
Louisa  Hamer,  Administratrix  of  the  Es- 
tate of  Ellis  P.  Hamer,  Deceased.  (No. 
164.) 


UnCA  BANK,  Plff.  in  Err., 

V. 

CHARLES  E.  YATES  and  Louisa  Hamer, 
Administratrix  of  the  Estate  of  Ellis  P. 
Hamer,  Deceased.     (No.  165.) 


THOMAS  BAILEY,  Plff.  in  Err., 

T. 

CHARLES  E.  YATES  and  Louisa  Hamer, 
Administratrix  of  the  EsUte  of  Ellis  P. 
Hamer,  Deceased.     (No.  166.) 

(See  S.  C.  Reporter's  ed.  541-563.) 

JSrror  to  state  ooart  —  decision  in  faTor 
of  Federal  right. 

1.  The  theory  that  plaintiffs  in  the 
state  court  sought  to  enforce  defendants' 
alleged  liability  on  non-Federal  grounds, 
and  that  the  Federal  question  was  raised 
exclusively  by  the  defendants,  cannot  sac- 
cessfully  be  urged  to  defeat  the  appellate 
jarisdiction  of  the  Federal  Supreme  Court 
over  a  judgment  of  the  highest  state  court, 
which,  upon  the  ground  that  a  case  was  not 
made  out,  under  U.  S.  Rev.  Stat.  §  5239, 
Comp.  Stat.  1913,  §  9831,  as  construed  by 
the  Federal  Supreme  Court,  reversed  a  judg- 

NoTB. — On  the  general  subject  of  writs 
of  error  from  United  States  Supreme  Court 
to  state  courts — see  notes  to  Martin  v. 
Hunter,  4  L.  ed.  U.  S.  97;  Hamblin  v.  West- 
ern Land  Co.  37  L.  ed.  U.  S.  267;  Re 
Buchanan,  39  L.  ed.  U.  S.  884,  and  Kipley 
▼.  Illinois,  42  L.  ed.  U.  S.  998. 

On  what  adjudications  of  state  courts 
can  be  brought  up  for  review  in  the  Supreme 
Court  of  the  United  States  by  writ  of 
error  to  those  isourts — see  note  to  Apex 
Transp.  Co.  v.  Garbade,  62  L.R.A.  513. 

On  how  and  when  questions  must  be 
raised  and  decided  in  a  state  court  in  order 
to  make  a  case  for  a  writ  of  error  from  the 
Supreme  Court  of  the  United  States — see 
note  to  Mutual  L.  Ins.  Co.  v.  McGrew,  63 
L.R.A.  33. 

On  what  questions  the  Federal  Supreme 
Court  will  consider  in  reviewing  the  judg- 
ments of  state  courts — see  note  to  Missouri 
«x  rel.  Hill  v.  Dockery,  63  L.R.A.  571. 

On  review  of  questions  of  fact  on  writ  of 
error  to  a  state  court-rsee  note  to  Smiley  v. 
Kansas,  49  L.  ed.  U.  S.  546. 
788 


ment  holding  the  directors  in  a  national 
bank  civilly  liable  to  depositors  suffering 
damage  beotuse  of  false  representations  as 
to  the  bank's  financial  condition,  contained 
in  the  published  oflBcial  reports  to  the  Comp- 
troller of  the  Current,  even  though  plain- 
tiffs' petition  did  not  refer  in  terms  to  the 
Federal  statute,  and  defendants  alleged  in 
their  answer  that,  if  any  liability  attached 
to  them  as  directors,  it  was  determined  by 
the  Federal  statute,  since,  if  the  plaintiffs' 
cause  of  action  required  the  application  of 
the  Federal  statute  in  defining  the  liabilitv 
of  the  directors  with  respect  to  the  acts  al- 
leged and  proved,  plaintiffs  were  entitled 
to  its  correct  application. 
[For  other  cases,  see  Appeal  and  Jirtot,  1431- 
1460,  in  Digest  Sop.  Ct.  1908.] 

EIrror  to  state  court  —  review  of  facta. 

2.  The  Federal  Supreme  Courts  when 
reviewing  on  writ  of  error  a  judgment  of 
the  highest  court  of  a  state,  which,  upon  the 
ground  that  a  case  had  not  been  made  out, 
under  U.  S.  Rev.  Stat.  |  5239,  Cump.  Stat. 
1913,  §  9831,  reversed  a  judfiment  holding 
directors  in  a  national  bank  civilly  liable  to 
depositors  suffering  damage  because  of  false 
representations  as  to  the  bank's  financial 
condition,  contained  in  the  published  official 
reports  to  the  Comptroller  of  the  Currency, 
will  determine  whether  the  facts  found  by 
the  trial  court  justified  a  recovery  under 
the  Federal  law,  and,  if  so,  whether  there 
was  substantial  evidence  to  support  tnese 
findings. 

[For  otber  cases,  see  Appeal  and  Brror,  2175- 
2208.  in  Digest  Sup.  Ct.  1908.] 

National  banks  —  liability  of  directors 

•»  false    official     reports  "^  knowing 

participation  or  assent. 

3.  Directors  in  a  national  bank,  who, 
with  knowledge  of  the  falsity  of  the  repre- 
sentations as  to  the  bank's  financial  condi- 
tion, contained  in  oflBcial  reports  to  the 
Comptroller  of  the  Currency,  made  and  pub- 
lished conformably  to  U.  S.  Rev.  Stat.  | 
5211,  Comp.  Stat.  1913,  §  9774,  either 
formally  attested  such  reports,  or  know- 
ingly permitted,  assented  to,  and  allowed 
the  same  to  be  made  and  published,  must 
be  deemed  knowingly  to  have  participated 
in  or  assented  to  a  violation  of  the  national 
banking  laws,  within  the  meaning  of  U.  S. 
Rev.  Stat.  §  5239,  Comp.  Stat.  1913,  §  9831, 
which  provides  that,  in  case  of  ^uch  viola- 
tion, or  permitted  violation,  every  director 
participating  in,  or  assenting  thereto,  shall 
be  civilly  liable  to  any  person  suffering 
damage  in  consequence  thereof. 

[For  otber  cases,  see  Banks,  IV.  e,  8,  in  Digest 
Sup.   Ct.   1908.1 

Evidence  —  sufficiency  ^  knowledge  of 

national  bank  directors  —  falsity  of 

ofHcial  reports. 

4.  A  finding  that  the  directors  in  a 
national  bank,  who  participated  in  or  as- 
sented to  the  official  reports  of  the  bank's 
financial  condition  to  uie  Comptroller  of 
the  Currency,  made  and  published  conform- 
ably to  U.  S.  Rev.  Stat,  g  5211,  Comp.  Stat. 
1913,  S  9774,  did  so  with  knowledge  of  the 
gross  and  easily  discoverable  falsi^  of  the 
representations    therein    that    the    capital 

S40  U.  S. 


1015. 


JONES  NATIONAL  BANK  t.  YATES. 


stoek  was  intact,  and  that  there  were  un- 
divided profits  and  a  surplus,  is  sustained 
tnr  evidence  of  the  deliberate  assertions  of 
the  directors  themselves,  made  prior  to  such 
reports,  in  response  to  oflScial  complaint, 
that  they  were  examining  the  condition  of 
the  bank,  were  considering  the  losses  sus- 
tained and  the  expenses  incurred,  and  the 
basis  of  the  last  declared  dividend. 
[For  other  cases,  see  Brldence  XII.  t,  in 
Diffest  Sup.  Ct.  1908.] 

[Nos.  163,  164,  165,  and  166.] 

Argued  April  5  and  6,  1915.  Kestored  to 
docket  for  reargument  June  21,  1915.  Re- 
argued January  12  and  13,  1916.  Decided 
April  8,  1916. 

FOUR  WRITS  OF  ERROR  to  the  Su- 
preme Court  of  the  State  of  Nebraska 
to  review  judgments  which  reversed  judg- 
ments of  the  District  Court  of  Seward  Coun- 
ty, in  that  state,  holding  the  directors  of  a 
national  bank  civilly  liable  to  depositors 
suffering  damage  because  of  false  represen- 
tations as  to  the  bank's  financial  condition, 
oontained  in  the  published  official  reports  to 
the  Comptroller  of  the  Currency.  Reversed 
and  remanded,  with  instructions  to  rein- 
state the  judgments  entered  in  the  District 
Court. 

See  same  case  below,  first  i^peal,  74  Neb. 
734,  105  N.  W.  287 ;  second  appeal,  93  Neb. 
121,  139  N.  W.  844,  1135. 

The  facts  are  stated  in  the  opinion. 

Mr.  John  Jacob  Thomas  argued  the 
cause,  and,  with  Mr.  Lionel  C.  Burr,  filed 
a  brief  for  plaintiffs  in  error: 

Plaintiffs'  petitions  state  a  cause  of  ac- 
tion, whether  tested  by  U.  S.  Rev.  Stat. 
S  5230,  Comp.  Stat.  1913,  §  9831,  or  the 
common  law. 

Thomas  v.  Taylor,  224  U.  S.  78,  56  L.  ed. 
678,  32  Sup.  Ct.  Rep.  403;  Davis  v.  Central 
Land  Co.  (Davis  v.  Trent)  162  Iowa,  269, 
40  L.R.A.(N.S.)  1219,  143  S.  W.  1073. 

The  provisions  of  U.  S.  Rev.  Stat.  §  5239, 
requiring  a  knowing  violation  in  order  to 
subject  a  director  to  the  liability  therein 
imposed,  do  not  demand  proof  of  an  inten- 
tional violation,  but  a  violation  in  effect  in- 
tentional. And  there  is  in  effect  an  inten- 
tional violation  of  the  statute  when  a  di- 
rector deliberately  fails  or  refuses  to  exam- 
ine that  which  it  is  his  duty  to  examine. 

Thomas  v.  Taylor,  supra. 

While  bank  directors  may  delegate  the 
performance  of  ministerial  duties  to  subor- 
dinate officers,  agents,  or  servants  under 
their  supervision  and  direction,  they  may 
not  abdicate  their  trust  as  directors  by 
committing  the  management  of  the  affairs 
of  the  association  to  others,  and  thus  avoid 
responsibility  and  liability.   It  is  their  duty 


to  actually,  actively,  and  diligently  manage 
its  affairs,  and  from  this  obligation  they 
cannot  absolve  themselves;  and  they  will 
be  held  to  such  knowledge  as  the  perform- 
ance of  that  duty  wovid  give;  or,  con- 
versely, they  will  not  be  absolved  from 
liability  on  account  of  ignorance  which 
could  only  result  from  gross  negligence, 
wilful  recklessness,  or  deliberate  refusal  to 
perform  their  duty. 

First  Nat.  Bank  v.  Drake,  29  Kan.  311, 
44  Am.  Rep.  646;  Hall  v.  Henderson,  126 
Ala.  495,  61  L.RJI.  621,  85  Am.  St.  Rep. 
53,  28  So.  544;  United  Soc.  v.  Underwood, 
0  Bush,  609,  15  Am.  Rep.  731;  Rankin  v. 
Cooper,  149  Fed.  1010;  Warren  v.  Robison, 
19  Utah,  289,  75  Am.  St.  Rep.  734,  57  Pac. 
287;  Auten  ▼.  United  States  Nat.  Bank, 
174  U.  S.  147,  43  L.  ed.  928,  19  Sup.  Ct. 
Rep.  637;  McQure  v.  People,  27  Colo.  371, 
61  Pac.  617;  Henry  v.  Dennis,  85  Am.  St. 
388,  note;  Solomon  v.  Bates,  118  N.  C.  311, 
54  Am.  St.  Rep.  725,  24  S.  £.  478;  Houston 
V.  Thornton,  122  N.  C.  365,  65  Am.  St.  Rep. 
699,  29  S.  £.  827;  Marshall  v.  Farmers'  & 
M  Sav.  Bank,  85  Va.  676,  2  L.R.A.  534,  8 
S.  E.  586,  17  Am.  St.  Rep.  84,  note,  p.  100; 
Fletcher  v.  Eagle,  74  Ark.  585,  109  Am.  St. 
Rep.  100,  86  S.  W.  810;  Martin  v.  Webb, 
110  U.  S.  7,  28  L.  ed.  49,  3  Sup.  Ct.  Rep. 
428;  Savings  Bank  v.  Caperton,  87  Ky.  306, 
12  Am.  St.  Rep.  488,  8  S.  W.  885;  Williams 
V.  McKay,  40  N.  J.  Eq.  190,  53  Am.  Rep. 
775;  Delano  v.  Case,  121  HI  247,  2  Am.  St. 
Rep.  81,  12  N.  E.  676;  Scale  v.  Baker,  70 
Tex.  283,  8  Am.  St.  Rep.  502,  7  S.  W.  742; 
Hun  V.  Oury,  82  N.  Y.  71,  37  Am.  Rep.  646; 
Huntington  v.  Attrill,  118  N.  Y.  365,  23 
N.  E.  544;  Utley  v.  Hill,  165  Mo.  232,  4» 
L.RA.  323,  78  Am.  St.  Rep.  569,  55  S.  W. 
1091;  Briggs  v.  Spaulding,  141  U.  S.  132,. 
35  L.  ed.  662,  11  Sup.  Ct.  Rep.  924;  Gemer 
V.  Mosher,  58  Neb.  135,  46  L.R.A.  244,  78^ 
N.  W.  384. 

By  the  act  of  attesting  as  correct  an  offi- 
cial report  of  the  financial  condition  of  a 
national  bank,  directors  thereby  affirm  and 
represent  that  they  have  actual  knowledge 
of  the  bank's  condition  and  of  the  truthful- 
ness of  the  report,  as  distinguished  from 
mere  opinion  or  belief.  If  they  make  or 
attest  untrue  statements  without  knowl- 
edge of  whether  they  are  true  or  false,  they 
are  guilty  of  false  representation  in  effect 
knowingly  made.  If  they  make  or  attest 
such  statement  recklessly,  without  knowl- 
edge of  its  truth  or  falsity,  or  are  oonsciouB 
that  they  have  no  actual  knowledge  of  its. 
truthfulness,  they  are  guilty  of  a  false- 
representation  knowingly  made.  Where  di- 
rectors who,  through  gross  neglect  of  duty 
or  reckless  inattention,  have  not  partici- 
pated in  the  management  of  the  bank's 
affairs,  and  are  ignorant  of  its  financial 

78» 


SUPREME  CX)URT  OF  THE  UNFIED  STATES. 


Oct.  TkBM, 


oondition,  make  *  representation  of  such 
oondition,  and  they  do  not  know  whether  it 
be  true  or  false,  and  it  is  actually  untrue, 
they  are  guilty  of  a  false  representation, 
knowingly  made. 

Boyd  V.  Schneider,  65  C.  C.  A.  209,  131 
Fed.  223;  Vincent  v.  Corbett,  94  Miss.  46, 
21  L.RJk.(N.S.)  85,  47  So.  641;  20  Gyc. 
24-29;  Cooper  t.  Schlesinger,  111  U.  S.  148, 
28  L.  ed.  382,  4  Sup.  Ct.  Rep.  360;  Lehigh 
Zinc  &  I.  Co.  V.  Bamford,  150  U.  S.  665,  37 
L.  ed.  1215,  14  Sup.  Ct.  Rep.  219;  Hindman 
T.  First  Nat.  Bank,  57  LJUk.  108,  50  C.  C. 
A.  623,  112  Fed.  934;  Taylor  v.  Commercial 
Bank,  68  App.  Div.  460,  73  N.  Y.  Supp. 
024;  Hadcock  v.  Osmer,  153  N.  T.  604,  47 
N.  E.  923;  Rothschild  v.  Mack,  115  N.  Y. 
7,  21  N.  E.  726;  Cole  v.  Cassidy,  138  Mass. 
437,  52  Am.  Rep.  284;  Chatham  Furnace 
Co.  T.  Moffatt,  147  Mass.  403,  9  Am.  St. 
Rep.  727,  18  N.,  £.  168,  16  Mor.  Min.  Rep. 
103;  John  Gund  Brewing  Co.  t.  Peterson, 
130  Iowa,  301,  106  N.  W.  741;  Thomas  ▼. 
Taylor,  224  U.  S.  73,  56  L.  ed.  673,  32  Sup. 
Ct.  Rep.  403;  Joines  v.  Combs,  38  Okla. 
380,  132  Pac.  1115;  Arrowsmith  v.  Nelson, 
73  Wash.  658,  132  Pac.  743;  Grant  y.  Led- 
widge,  109  Ark.  297,  160  S.  W.  200;  Pate 
▼.  BUdes,  163  N.  C.  267,  79  S.  E.  608;  Davis 
T.  Central  Land  Co.  (Davis  v.  Trent)  162 
Iowa,  269,  49  L.RA..(N.S.)  1219,  143  N.  W. 
1073;  Gemer  v.  Mosher,  5*8  Neb.  135,  46 
LJIA.  244,  78  N.  W.  384;  Morse,  Banks  ^ 
Bkg.  §§  132,  133. 

After  receiving  the  letters  from  the 
Comptroller  of  the  Currency,  shown  by  the 
record,  it  was  directors'  duty  to  enter  upon 
the  exercise  of  their  functions  and  acquaint 
themselves  with  the  affairs  of  the  associa- 
tion, and  their  failure  to  do  so  was  gross 
negligence  and  recklessness,  or  a  deliberate 
refusal  to  perform  their  duty,  and  consti- 
tuted an  intentional  violation,  actionable 
under  U.  S.  Rev.  Stat.  §  5239,  Comp.  Stat. 
1913,  §  9831.  And  if,  thereafter,  directors 
make  or  attest  statements  of  the  associa- 
tion's financial  condition,  or  permit  its  offi- 
cers, agents,  or  servants  to  do  so,  and  such 
statements  are  in  fact  false  and  untrue, 
vhey  are  liable  in  their  personal  and  indi- 
vidual capacity  for  all  damages  which  a  de- 
positor may  have  suffered  in  consequence  of 
such  false  representation,  regardless  of 
whether  or  not  the  directors  had  actual  per- 
sonal knowledge  of  the  falsity.  Upon  re- 
ceipt of  the  letters  aforesaid  it  was  the 
duty  of  the  directors  to  acquaint  them- 
selves with  the  affairs  of  the  association, 
and  they  are  presumed  to  have  such  knowl- 
edge of  its  condition  as  a  performance  of 
their  duty  would  have  given  them. 

Thomas  v.  Taylor,  224  C.  S.  73,  56  L.  ed. 
673^  32  Sup.  Ct.  Rep.  403;  Chesbrough  v. 
Woodwortb,  116  C.  C.  A.  465,  195  Fed.  875; 


Chicago,  St.  L.  &  P.  R.  Co.  ▼.  Nash,  1  Ind. 
App.  298,  27  N.  E.  564. 

It  follows  that  the  state  court  erred  in 
deciding  that,  to  entail  liability  under 
§  5239,  for  the  publication  of  false  official 
reports  of  the  bank's  condition,  it  must  be 
shown  that  the  directors  had  actual  knowl- 
edge of  its  falsity, — ^that  knowledge  must 
be  brought  home  to  the  directors  that  they 
are  deceiving  the  individual  wronged,  and 
may  thereby  occasion  a  loss  to  him,— or 
that  they  personally  participated  in  the  act 
complained  of. 

The  state  court,  in  testing  the  sufficiency 
of  the  evidence  to  sustain  recovery,  having 
weighed  it  under  an  erroneous  interpretation 
of  §  5239,  and  a  misconception  of  the  de- 
cision of  this  court  in  these  cases,  it  follows 
that  its  conclusions  in  that  regard  are 
erroneous.  Measured  by  the  correct  rule 
of  responsibility,  the  evidence  establishes 
undoubted  liability,  and  the  finding  and 
judgment  of  the  trial  court  should  be 
affirmed. 

Jones  Nat.  Bank  v.  Yates,  93  Neb.  137, 
139  N.  W.  844,  1135;  Black  v.  Epstein,  221 
Mo.  286,  120  S.  W.  754;  Stuart  v.  Hayden, 
169  U.  S.  1,  42  L.  ed.  639,  18  Sup.  Ct.  Rep. 
274;  Farmers'  &  M.  Nat.  Bank  v.  Mosher, 
68  Neb.  724,  94  N.  W.  1003,  100  N.  W.  133. 

Messrs.  John  Jacob  Thomas,  Lionel  C. 
Burr,  and  Arthur  B.  Hayes  also  filed  a 
brief  for  plaintiffs  in  error: 

The  findings  of  the  state  supreme  court 
are  subject  to  review. 

Carlson  v.  Washington,  234  U.  S.  103,  58 
L.  ed.  1237,  34  Sup.  Ct.  Rep.  717;  Southern 
P.  Co.  V.  Schuyler,  227  U.  S.  601,  57  L.  ed. 
662,  43  L.R.A.(N.S.)  901,  33  Sup.  Ct.  Rep. 
277;  Creswill  v.  Grand  Lodge,  K.  P.  225  U. 
S.  246,  56  L.  ed  1074,  32  Sup.  Ct.  Rep.  822; 
North  Carolina  R.  Co.  v.  Zachary,  232  U.  S. 
248,  58  L.  ed.  591,  34  Sup.  Ct.  Rep.  305, 
Ann.  Cas.  1914C,  159,  9  N.  a  C.  A.  109; 
Kansas  City  Southern  R.  Co.  v.  C.  H.  Albers 
Commission  Co.  223  U.  S.  573,  56  L.  ed.  556, 
32  Sup.  Ct.  Rep.  316;  Rector  v.  City  Deposit 
Bank  Co.  200  U.  S.  405,  412,  50  L.  ed.  527, 
529,  26  Sup.  Ct.  Rep.  289;  Washington 
ex  rel.  Oregon  R.  &  Nav.  Co.  v.  FairdUld, 
224  U.  S.  510,  56  L.  ed.  863,  32  Sup.  Ct 
Rep.  535. 

Mr.  John  Jacob  Thomas  filed  a  supple- 
mental brief  for  plaintiffs  in  error: 

The  state  supreme  court  reviewed  the 
cases  for  errors  of  law,  and  did  not  assume 
to  try  them  de  novo, 

Roode  V.  Dunbar,  9  Neb.  95,  2  N.  W.  345; 
State  ex  rel.  Miller  v.  Lancaster  Go.  13  Neb^ 
223,  13  N.  W.  212;  Prentice  Brownstone  Co. 
▼.  King,  39  Neb.  816,  58  N.  W.  277;  SUts 
ex  rel.  McMullen  v.  Aflholder,  44  Neb.  497, 
62  N.  W.  871 ;  CampbeU  r.  Farmers'  4  M. 

240  V.  8. 


1016. 


JONES  NATIONAL  BANK  r.  YATES. 


Bank,  40  Neb.  143,  68  N.  W.  844;  Nebraska 
Wesleyan  UnWenity  r.  Craig,  54  Neb.  178, 

74  N.  W.  605;  Lowe  r.  Riley,  57  Neb.  262, 
77  N.  W.  758;  Gary  r.  Kearney  Nat.  Bank, 
60  Neb.  160,  80  N.  W.  484;  Van  Doren  r. 
Bmpkie-Shugart  Co.  2  Neb.  (Unof.)  818,  00 
N.  W.  220. 

The  scope  of  review,  as  well  as  the  pro- 
cedure, is  inoonsistent  with  any  other 
theory. 

Uni<m  P.  R.  Co.  ▼.  Rassmussen,  25  Neb. 
810,  13  Am.  St.  Rep.  627,  41  N.  W.  778; 
Jones  V.  Edwards,  1  Neb.  170;  Blackburn  t. 
Ostrander,  6  Neb.  210;  Conner  t.  Draper,  34 
Neb.  870,  52  N.  W.  720;  Storz  y.  Riley,  41 
Neb.  822,  60  N.  W.  06;  Douglas  y.  Smith, 

75  Neb.  160, 106  N.  W.  173;  O^den  y.  Sover- 
eign Camp,  W.  W.  78  Neb.  804,  111  N.  W. 
707,  113  N.  W.  524;  H.  F.  Cady  Lumber  Co. 
Y.  Wilson  Steam  Boiler  Co.  80  Neb.  607. 
114  N.  W.  774;  High  v.  Merchants'  Bank,  6 
Neb.  156;  Angle  v.  BUby,  25  Neb.  595,  41 
N.  W.  397;  Carmack  v.  Erdenberger,  77 
Neb.  592,  110  N.  W.  315;  Waxham  v.  Fink, 
86  Neb.  180,  28  L.RJk.(N.S.)  367, 125  N.  W. 
145,  21  Ann.  Cas.  301;  State  ex  rel.  Mc- 
Donald v.  Farrington,  86  Neb.  658,  126 
N.  W.  91;  Tait  v.  Reed,  91  Neb.  235,  136 
N.  W.  89;  Lowe  v.  Keens,  00  Neb.  565,  133 
N.  W.  1127;  Ann.  Cas.  1913B,  430;  Ham- 
mond V.  Edwards,  56  Neb.  631,  77  N.  W.  75; 
Ogden  V.  Garrison,  82  Neb.  302,  17  KRJL 
(N.:.)  1135,  117  N.  W.  714;  Lion  Bonding 

A  Surety  Co.  v.  Capital  F.  Ins.  Co.  06  Neb. 

61,  146  N.  W.  1051 ;  BhoS  v.  Ash,  05  Neb. 
266,  146  N.  W.  271 ;  Lau  v.  Lindsey,  3  Neb. 

(Unof.)  681,  02  N.  W.  642;  First  Nat.  Bank 
▼.  Crawford,  78  Neb.  666,  111  N.  W.  687; 
Western  Cornice  &  Mfg.  Works  v.  Leaven- 
worth, 52  Neb.  418,  72  N.  W.  502;  Bishop 
y.  Huff,  81  Neb.  720, 116  N.  W.  665;  Haight 
V.  Omaha  &  C.  B.  Street  R.  Co.  07  Neb.  203, 
140  N.  W.  778;  Kohl  v.  Munson,  07  Neb. 
170,  140  N.  W.  314;  De  Noon  v.  Lincoln 
Traction  Co.  07  Neb.  4,  149  N.  W.  48;  Cal- 
breath  v.  Bamford,  97  Neb.  832,  151  N.  W. 
057;  Davis  v.  Manning,  97  Neb.  663,  150 
N.  W.  1019;  Wenquist  v.  Omaha  &  C.  B. 
Street  R.  Co.  97  Neb.  660,  150  N.  W.  637; 
Langdon  v.  Withnell,  97  Neb.  335, 149  N.  W. 
781;  Omaha  F.  Ins.  Co.  v.  Thompson,  50 
Neb.  584,  70  N.  W.  30;  Risse  v.  Gasch,  43 
Neb.  288,  61  N.  W.  616;  Flanigan  v.  Gug- 
genheim Smelting  Co.  63  N.  J.  L.  647,  44 
AtL  762,  7  Am.  Neg.  Rep.  113;  Hopkins  v. 
Washington  County,  56  Neb.  596,  77  N.  W. 
68;  Rand  v.  King,  134  Pa.  641,  19  AtL  806; 
Porter  v.  Sherman  County,  40  Neb.  274,  68 
N.  W.  721;  American  Surety  Co.  v.  Mussel- 
man,  00  Neb.  62,  132  N.  W.  720;  Slocum  ▼. 
New  York  L.  Ins.  Co.  228  U.  S.  364,  57 
L  ed.  870,  83  Sup.  Ct.  Rep.  523,  528,  680, 
Ann.  Cas.  1014D,  1020. 

A  jury  having  been  waived,  the  findings 
40  L.  ed. 


of  fact  of  the  trial  court  have  the  same 
foree  and  effect  in  law  as  the  verdict  of  a 
jury. 

Madison  Nat.  Bank  v.  Gross,  08  Neb.  684, 
164  N.  W.  207;  Powers  v.  Bohuslav,  84  Neb. 
170,  120  N.  W.  042;  Dorsey  v.  Wellman,  86 
Neb.  262, 122  N.  W.  080;  Darr  &  Spencer  v. 
Kansas  City  Hay  Co.  85  Neb.  666,  124  N. 
W.  103;  Tyng  v.  Grinnell,  02  U.  S.  467,  23 
L.  ed.  733. 

Granting,  for  the  sake  of  argument,  that 
the  state  supreme  court  decided  that  the 
findings  of  fact  were  insufficient  to  sustain 
the  judgments,  this  court  will  go  no  further 
than  to  examine  those  findings  to  determine 
that  question.  It  vrill  not  weigh  the  evi- 
dence to  ascertain  if  it  supports  the  findings 
of  ultimate  fact. 

Tyng  V.  Grinnell,  supra. 

And  if  we  were  to  go  further  still,  and 
assume  that  Judge  Letton  decided  that  the 
evidence  did  not  sustain  the  findings,  this 
would  not  be  a  finding  of  fact,  but  a  con- 
clusion of  law  as  to  the  legal  effect  of  the 
evidence,  and  this  court  would  not  weigh 
the  evidence  to  determine  its  preponder- 
ance, but  would  look  to  the  record  to  see 
only  if  the  evidence,  with  all  the  inferences 
that  could  justifiably  be  drawn  from  it,  was 
sufficient  to  support  the  findings.  In  other 
words,  it  would  re-examine  the  matter  ac- 
cording to  the  rules  of  the  common  law. 
'  2  Enc.  PL  &  Pr.  404. 

A  refusal  to  find  a  fact  which  is  sup- 
ported by  undisputed  evidence,  or  a  finding 
of  fact  imsupported  by  any  evidence  tend- 
ing to  establish  it,  is  also  reviewable  as  a 
question  of  law. 

2  Enc  PI.  &  Pr.  407;  The  City  of  New 
York  (Alexandre  v.  Machan)  147  U.  S.  72, 
37  L.  ed.  84,  13  Sup.  Ct.  Rep.  211;  Bedlow 
V.  New  York  Floating  Dry  Dock  Co.  112 
N.  Y.  263,  2  L.ILA.  620,  10  N.  £.  800; 
Phenix  Ins.  Co.  v.  Kerr,  66  L.ILA.  560,  64 
C.  C.  A.  251,  120  Fed.  723;  Walker  v.  New 
Mexico  &  S.  P.  R.  Co.  165  U.  S.  503,  506,  41 
L.  ed.  837,  841,  17  Sup.  a.  Rep.  421,  1  Am. 
Neg.  Rep.  768;  Slocum  v.  New  York  L.  Ins. 
Co.  228  U.  S.  364,  57  L.  ed.  870,  33  Sup.  Ct. 
Rep.  523,  520,  Ann.  Cas.  1014D,  1020. 

This  court  will  accept  the  findings  of  fact 
of  the  trial  court  and  review  the  cases  solely 
for  errors  of  law. 

Supreme  Justices  v.  Murray  (Supreme 
Justices  V.  United  States)  0  Wall.  274,  10 
L.  ed.  658;  Maxwell  v.  Dow,  176  U.  S.  681, 
44  L.  ed.  507,  20  Sup.  a.  Rep.  448,  494; 
Craig  V.  Missouri,  4  Pet.  410,  7  L.  ed.  903; 
Republican  River  Bridge  Co.  v.  Kansas  P.  R. 
Co.  92  U.  S.  316,  23  L.  ed.  616;  Parsons  v. 
Bedford,  3  Pet.  441,  448,  7  L.  ed.  786,  787; 
Merced  Min.  Co.  v.  Boggs,  8  WalL  804,  18 
L.  ed.  246;  Chicago,  B.  &  Q.  R.  Co.  v.  Chi- 
cago, 166  U.  S.  226,  41  L.  ed.  070,  17  Sup. 


SUPREME  COURT  OF  THE  UNITED  STATSa              OoT.  Tbm, 

Ct.  R«p.  681;  Smiley  t.  Kan«U,  190  U.  S.  -  S  9B3I,  requires  m  knowing  violation  of  iU 

447,  49  L.  wL  MS,  SO  Sup.  Ct.  Rep.  280  proviiion  in  order  U>  eaUbUsh  liability. 

MiMouri,  K.  &  T.  R.  Co.  T.  Haber,  169  U.  S  McDonald  v.  WiUiuua,  174  U.  S.  897,  U 

S13, 42  L.  ed.  878,  IS  Sup.  Ct.  Rap.  488-498  L.  ed.  1022,  19  Sup.  Ct.  Bep.  743;  Utley  t. 

Standard  Oil  Co.  v.  Brown,  218  U.  S.  78,  64  HiU,  166  Mo.  232,  40  LJL&.  328,  78  Am.  St. 

L.  ed.  939,  30   Sup.   Ct.  Rep.  969;   Capita  Rep.  669,  65  S.  W.  1091;  Uarcn  t.  Moor^ 

Traction  Co.  v.  Hot,  IT4  U.  S.  1,  43  L.  ed  73  Ohio  St.  276,  4  L.RA.{N.6.)   597,  70  N. 

873,  19  Sup.  Ct.  Rep.  680.  E.  932,  4  Ann.  Cat.  240;    Spuir  *.  Uoitad 

Mr.  Frank  E.  Bishop  argued  the  c.u«  ^tate^  174  US    788,  43  K  ei  IISO    U. 

«.d.  with  Mr.  Frank  M   HaH^  filed  a  briel  ?:?f-,5\«*P- "?'  f^ ^«"^^^*'»**' 

:^d  J:;rHii.*""'  *='•""  '•  "•"  '^I'^m.f-Z'brtz^'^^r^.t^ 

"i.^n.Srorthe  .tate  ^urt  are  no,  fZ^lT^.^-  '^^'^'  ^  V^  !i  "'i'' 

•ubject  to  ^iew  in  thi,  court.  ^  "^.^  '  tu    •*■  "' ^''- .    V«  ^f 'b^ 

Itewer  ,.  RichanU,  161  U.  S.  868.  38  L  !^P:  "f'„J^""  '■  ^^^^''  ^^t^'  ^-  "' 

ed.  306,  14  Sup.  Ct.  Rep.  462.  17  Mor.  Min  ^^^  «^;  "3.  32  Sup.  Ct.  Rep.  403. 

Hep.  704;   Mi^ich  »    LaueneUin.  232  U  Jhe  directors  of  a  national  bank  are  not 

S.  236.  SB  L.  ed.  6B4,  34  Sup.  Ct.  Rep.  309  "^"^^  **»  manage,  but  to   admiaiater.  ,U 

The  printed  bill  of  exce^ions  do^  noi  *^»»''v  """   *"    not   re.pon«ble    for    the 

contain  all  of  the  evidence,  and  cannot  b*  «'«  "{  '*•  '^"^  and  agent-  which  ther 

re-examined  to  change  the  finding,  of  fact  f  **  »*'  knowmgly  participate  in  or  aMU>t 

YatM  V.  Jonei  Nat.  Bank.  206  U.  S.  168  "■     .                „        ...         ,.,    -    a     i«o    .. 

61  L.  ed.  1002,  27  Sup.  «.  Rep.  838;  Kansai  ,  ^'S*;/-   ^f    "^^^    "^ii'   ^-    ^"^   " 

City  Southern  R.  Co    v.  C.  H    Alb^ra  Com-  ^i?"  «].*■  "  ^up.  «.  Rep   924 

miBBion  Co.  223  U.  S.  673,  66  L.  ed.  656,  3S  ^he  dir«t<.r  does  not  attest  the  official 

Sup.  Ct.  Rep.  318;  Creewiilv.  Grand  Lodg«,  report  at  hi.  risk  of  its  b«ng  fabe.    He  « 

K.  P.  225  U  S.  248,  66  L.  ed.  1074,  32Snp  "°*   "«P<>»"*»le   without  knowledge  »f   ita 

Ct.  Rep.  822;  Southern  P.  Co.  v.  Schuyler,  '*'''*/■        ^         »t  .   t.    ,    «„«  r,   a   .,« 

227  U.  S.  801,  67  L.  ed.  662,  43  L.Rjl.(N.S.  „^»**;  'V^"" '^"-  ^"^  "*^„  "■  t  ""• 
901,  33  Sup.  Ct.  Rep.  277;  CarUon  t.  Waeh-  "  J^  **^,''"*' '!  ^^"■J^^^f'^^^T'J"^ 
ington,  23^1  U.   S.   103,  68  L.  ed.    1237.  34  ';  SP""''^'''^"^  ^o.         "'  ^^  ^  «*"  «^ 

Sup.  Ct  Rep.  717;  United  SUtes  v.  Copper    ^^.^''P"  "       ,P'  ""'  _,        ,. 

<JnUn  Con.ii.   Min.  Co.    1S6  U.  S.  495:  48  ^^/'^'IT       ,'"^Tw,?      «  .?*!!!"^' 

L.  ed.  1008,  22  Sup.  Ct.  Rep.  781;   United  «°der.tood  the  rule  of  liabiLty  of  directory 

State,  ex  reL  Kinney  v.  United  State.  Fidel-  '^'^"'f,   fr™    tie   Mt.onal   bank    act.    and 

ity  ft  O.  Co.  222  U.  S.  283,  66  L.  ed.  200,  ""^'ctlJ'  "PPl'«l  't  to  the  •vid«ice. 

32  Sup.  a.  Rep.  101:  Orank  Trunk  S.  Co.  „^"-J'*i:/"f^  '*  ^**^  "  ^'^  "^• 

T.  Cununing.,  108  U.  S.  700.  27  L.  ed.  266,  1  "''  "•  ^-  *■**•  "''°' 

Sup.  Ct.  Rep.  649.  Mr.  Halleck  F.  lUMe  argued  the  caua.^ 

The  judgment  of  the  state  supreme  court  and,  with  Mesars.  John  F.  Stout  and  Arthur 

upon  the  vote  of  the  four  judges  does  not  R.  Wells,  filed  a  brief  for  defendant  In  er- 

deny  the  plaintiffs  any  Federal  right,  and  ror  David  E.  Thompaon: 

the  motion   for   rehearing  with   only   three  A  single  creditor  cannot  maintain  an  ae- 

judjea  in  its  favor  muat  fall  for  lack  of  a  tion  against  the  directon  of  a  corporation 

majority  of  the  court,  and  Is  not  reviewble  for  recovery  of  damage,  for  neglect  or  mis- 

in  thi.  conrt,  management  whereby  the  corporation   sns- 

Shumway  v.  State,  82  Neb.  152,  117  N.  tain.  loiw.  and  becomes  inaolvent.     Such 

W.    407,    119    N.    W.    617;     Conaolldated  cauH  of  action  ia  for  a  wrong  done  to  tba 

Turnp.  Co.  v.  Norfolk  ft  0.  Valley  R.  Co.  Knrporation  and  the  whole  body  of  the  cor- 

228  U.  S.  326,  57  L.  ed.  867,  33  Sup.  Ct  porate  creditors,  and  can  only  be  maintained 
Rep.  610;  Iowa  C.  R.  Co.  v.  Iowa,  160  U.  S.  by  the  corporation  or  it.  receiver. 

380,  40  L.  ed.  467,  16  Sup.  Ct.  Rep.  344;  Homor  v.  Henning,  93  U.  S.  228,  23  L.  ed. 

West  T.  Louisiana,  194  U.  8.  258,  4B  L.  ed.  g79;   Bailey  v.  Moaher,  11  C.  C.  A.  304,  87 

06S,  24  Sup.  Ct.  Rep.  660;  King  v.  West  tJ.  S.  App.  339,  63  Fed.  491;  Yates  t.  Bailey, 

TirginU,  216  U.  &  02,  54  L.  ed.  396,  30  VK  U.  S.  181-185,  61  L.  ed.  lOlS-1017,  87 

Sup.  Ct.  Rep.  226;  Carmichsel  V.  Eberle,  177  Sup.   Ot.   Rep.   64S;    Tatea   T.   JonM   Nit. 

U.  S.  63,  44  L.  ed.  672.  20  Sup.  Ct.  Hep.  Bank,  74  Neb.  739,  100  N.  W.  287;  United 

071.  SUte.  Fidelity  &  G.  Co.  t.  Ooming  State 

The  petitions  do  not   state   a   cause  of  3av.  Bank,  IM  Iowa,  68B,  46  LJtA.(N.S.) 

action  againrt  the  defendant..  121,  134  N.  W.  867 ;  Conway  t.  Halsey,  44 

Tate.  V.  Jone.  Nat  Bank,  206  U.  B.  168,  !f.  J.  L.  46S;  Kennedy  v.  GibMm,  8  WalL 

01  L.  ed.  1002,  27  Sup.  Ct  Rep.  638.  >06,  10  L.  ed.  470;   Cockrfll  v.  Coopw,  S> 

U.  B.  S»v.  Stat  I  0289,  Oomp.  Stat  lOU,  CL  C  A.  £29,  07  U.  S.  App.  S76,  86  Fed.  U; 

r»M  140  U.  8. 


1916. 


JONES  NATIONAL  BANK  t.  YATES. 


Davis  V.  Elmira  Sav.  Bank,  161  U.  S.  284, 
40  L.  ed.  701,  16  Sup.  Ct.  Rep.  502;  First 
Nat.  Bank  v.  Colby,  21  WalL  609,  613,  22 
L.  ed.  687,  688. 

The  decision  of  the  state  supreme  court 
rests,  exclusively,  on  a  finding  of  fact  that 
the  evidence  in  the  record  is  not  sufficient 
to  show  that  defendants  knovnngly  made 
or  knowingly  permitted  the  making  and 
publishing  of  false  official  reports.  Upon 
that  issue  plaintiffs  had  the  burden  of 
proof;  and  upon  a  finding  of  pure  fact  de- 
pends the  applicability  of  U.  S.  Rev.  Stat. 
§  6230,  Comp.  Stat.  1913,  i  9831,  and  the 
Federal  right  now  asserted  thereunder. 

Jones  Nat.  Bank  v.  Yates,  93  Neb.  127, 
139  N.  W.  844,  1136. 

On  error  to  a  state  court  of  last  resort, 
this  court  regards  the  findings  of  fact  of 
the  state  court  as  binding  upon  it.  This 
court,  therefore,  refuses  to  review  issues  of 
fact  determined  by  the  state  court;  and 
whatever  was  a  question  of  fact  in  the 
state  court  is  a  question  of  fact  on  a  writ 
of  error  from  this  court  to  tbe  state  court. 

Dower  v.  Richards,  161  U.  S.  668,  663,  38 
L.  ed.  306,  307,  14  Sup.  Ct.  Rep.  462,  17 
Mor.  Min.  Rep.  704;  Waters-Pierce  Oil  Co. 
V.  Texas,  212  U.  S.  86,  97,  98,  63  L.  ed.  417, 
424,  426,  29  Sup.  Ct  Rep.  220;  Rankin  v. 
Emigh,  218  U.  S.  27,  32,  64  L.  ed.  916,  920, 
30  Sup.  Ct.  Rep.  672;  Kerfoot  v.  Farmers' 
4  M.  Bank,  218  U.  S.  281,  288,  64  L.  ed. 
1042,  1044,  31  Sup.  Ct.  Rep.  14;  Miedreich  T. 
Lauenstein,  232  U.  S.  236,  243,  68  L.  ed.  684, 
689,  34  Sup.  Ct.  Rep.  309;  Eastern  Bldg.  & 
L.  Asso.  V.  Ebaugh,  186  U.  S.  114,  121,  46 
L.  ed.  830,  833,  22  Sup.  Ct.  Rep.  666;  Chi- 
cago &  A.  R.  Co.  V.  Wiggins  Ferry  Co.  119 
U.  S.  616,  622,  623,  30  L.  ed.  619,  622,  623, 
7  Sup.  Ct.  Rep.  398. 

It  is,  of  course,  conceded  that  cases  in 
which  the  finding  is  not  strictly  one  of 
fact,  but  is,  in  itself,  a  legal  conclusion  on 
the  Federal  right  claimed, — cases  where 
there  is  a  complete  failure  of  evidence  to 
support  a  conclusion  announced  upon  a 
Federal  question,  and  cases  where  the  facts 
on  which  the  application  of  the  Federal 
ri^t  depends  have  not  been  determined, — 
do  not  come  within  the  purview  of  the  rule 
Just  stated.  In  cases  of  these  excepted 
classes  it  is  the  conceded  duty  of  this  court 
to  ezamine  the  evidence  in  order  to  deter- 
mine what  facts  might  reasonably  be  foimd 
therefrom,  and  whidi  would  furnish  a  basis 
for  the  asserted  Federal  rights. 

Carlson  r.  Washington,  234  U.  S.  103, 106, 
68  L.  ed.  1237,  1238,  34  Sup.  a.  Rep.  717; 
Miedreich  r.  Lauenstein,  232  U.  6.  236,  68 
L.  ed.  684,  84  Sup.  Ct  Rep.  309. 

The  finding  of  the  state  court  on  an  issue 
that  determines  whether  the  Federal  right 
asserted  is  applicable  will  not  in  any  case 
eo  li.  ed. 


be  disturbed  if  there  is  sufficient  evidence 
in  the  record  to  sustain  it 

German  Sav.  &  L.  Soc  v.  Dormitzer,  192 
U.  S.  126,  128,  129,  48  L.  ed.  373,  376,  377, 
24  Sup.  Ct  Rep.  221. 

Proof  of  a  scienter  is  indispensable  to 
maintenance  of  the  present  suits. 

Yates  V.  Jones  Nat.  Bank,  206  U.  S.  168, 
179,  180,  61  L.  ed.  1002,  1014,  1016,  27  Sup. 
Ct  Rep.  638;  McDonald  v.  Williams,  174 
U.  S.  397,  43  L.  ed.  1022,  19  Sup.  Ct.  Rep. 
743;  Potter  v.  United  States,  156  U.  S.  438, 
39  L.  ed.  214,  16  Sup.  Ct.  Rep.  144 ;  Felton 
V.  United  States,  l»6  U.  S.  600,  702,  24  L.  ed. 
876,  876;  Utley  v.  HiU,  165  Mo.  232,  49 
LJEIA.  323,  78  Am.  St.  Rep.  660,  66  S.  W. 
1091;  Mason  v.  Moore,  73  Ohio  St.  276,  4 
LJl.A.(NJS.)  697,  76  N.  E.  932,  4  Ann.  Cas. 
240;  Briggs  v.  Spaulding,  141  U.  S. 
132-174,  36  L.  ed.  662-678,  11  Sup.  Ct.  Rep. 
924;  Crofton  v.  State,  26  Ohio  St.  240,  2 
Am.  Crim.  Rep.  378;  State  v.  Stafford,  67 
Me.  126;  Gregory  v.  United  States,  17 
Blatchf.  326,  Fed.  Cas.  No.  6,803;  Rosen  v. 
United  SUtes,  161  V.  S.  33,  40  L.  ed.  607, 
16  Sup.  Ct.  Rep.  434,  480,  1  Am.  Crim.  Rep. 
261;  Price  v.  United  States,  166  U.  S.  311, 
41  L.  ed.  727,  17  Sup.  Ct  Rep.  366;  Mc- 
Guire  v.  State,  7  Humph.  66;  Pier  v.  Han- 
more,  86  N.  Y.  102. 

A  director  is  not  liable  for  the  tort  of  a 
fellow  director. 

Briggs  V.  Spaulding,  141  U.  S.  132-174,  35 
L.  ed.  662-678, 11  Sup.  Ct.  Rep.  924;  Gemer 
V.  Mosher,  68  Neb.  144,  46  LJUL.  244,  78 
N.  W.  384. 

The  issue  of  whether,  upon  the  whole 
case,  the  evidence  justified  or  required  a 
finding  in  favor  of  the  defendants,  is  not 
presented  to  this  court  by  the  printed 
record.  A  large  part  of  the  evidence  is  not 
printed,  and  since  this  court  only  examines 
the  printed  record,  it  must  presume,  in 
favor  of  the  finding  of  the  state  supreme 
court,  that  the  evidence  before  the  state 
court,  which  is  omitted  from  the  printed 
record,  justified  and  required  a  finding  upon 
the  vrhole  case  in  favor  of  defendants. 

Grand  Trunk  R.  Co.  v.  Cummings,  106 
U.  S.  701,  27  L.  ed.  267, 1  Sup.  Ct.  Rep. '493; 
United  States  v.  Copper  Queen  Consol.  Min. 
Co.  186  U.  S.  497,  46  L.  ed.  1009,  22  Sup.  Ct. 
Rep.  761. 

The  mere  fact  of  attestation  does  not 
foreclose  the  issue  of  knowledge  against 
the  attesting  director. 

Yates  V.  Jones  Nat.  Bank,  206  U.  8.  171, 
172,  61  L.  ed.  1011,  1012,  27  SuJ).  Ct.  Rep. 
638;  Gemer  v.  Mosher,  68  Neb.  136,  46 
LJIA.  244,  78  N.  W.  384. 

Where  the  question  of  good  faith  is  in 
issue,  as  it  necessarily  is  in  issue  imder  the 
statute  requiring  proof  of  a  scienter,  the 

79^ 


543,  644 


SUPREB£E  COURT  OF  THE  UNITED  STATES. 


Oct.  Tjbm, 


onus  of  proving  knowledge  and  bad  faith  is 
upon  the  plaintiff. 

Ripley  t.  United  States,  220  U.  S.  491,  55 
L.  ed.  557,  31  Sup.  Ct.  Rep.  478. 

To  maintain  a  writ  of  error  under  §  237 
of  the  Judicial  Oode  (36  Stat,  at  L.  1156, 
chap.  231,  Comp.  Stat.  19l3,  §  1214),  the 
Federal  right  must  have  been  claimed  by 
the  plaintiff  in  error  in  the  state  court  in 
the  manner  therein  prescribed. 

F.  G.  Oxley  Stave  Co.  v.  Butler  County, 
166  U.  S.  648,  41  L.  ed.  1149,  17  Sup.  Ct. 
Rep.  709;  Green  Bay  &  M.  Canal  Co.  v. 
Patten  Paper  Co.  172  U.  S.  58,  43  L.  ed.  364, 
19  Sup.  Ct.  Rep.  97;  Michigan  Sugar  Co.  v. 
Michigan  (Michigan  Sugar  Co.  v.  Dix)  185 
U.  S.  112,  46  L.  ed.  829,  22  Sup.  a.  Rep. 
581. 

It  must  appear  from  the  face  of  the 
record  that  the  plaintiff  in  error  asserted 
his  Federal  right. 

Maxwell  v.  Newbold,  18  How.  511,  15  L. 
ed.  506. 

It  is  not  sufficient  that  a  Federal  claim 
was  made  in  argument. 

Yesler  v.  Washington  Harbor  Line,  146 
U.  S.  646,  36  L.  ed.  1119,  13  Sup.  a.  Rep. 
190. 

The  Federal  question  must  be  raised  be- 
fore the  entry  of  the  final  judgment  in  the 
highest  state  court. 

Simmerman  ▼.  Nebraska,  116  U.  S.  54,  29 
L.  ed.  535,  6  Sup.  Ct.  Rep.  333;  Bobb  v. 
Jamison,  155  U.  S.  416,  39  L.  ed.  206,  15 
Sup.  Ct.  Rep.  357;  Morrison  v.  Watson,  154 
U.  S.  Ill,  38  L.  ed.  927,  14  Sup.  Ct.  Rep. 
995;  Winona  &  St.  P.  Land  Co.  v.  MinuA- 
sota,  159  U.  S.  540,  40  L.  ed.  252,  16  Sup. 
Ct.  Rep.  88;  California  Nat.  Bank  v.  Thom- 
as, 171  U.  S.  441,  43  L.  ed.  231,  19  Sup.  a. 
Rep.  4;  Scudder  v.  The  Comptroller  (Scud- 
der  V.  Coler)  175  U.  S.  32,  44  L.  ed.  62,  20 
Sup.  Ct.  Rep.  26. 

A  number  of  the  cases  last  cited  hold 
that  the  Federal  question  cannot  be  intro- 
duced into  the  record  by  petition  for  re- 
hearing, filed  in  the  highest  court  of  the 
state  after  the  rendition  by  that  court  of 
final  judgment.  Obviously  the  suitor's 
only  means  of  throwing  upon  the  court  the 
burden  of  deciding  a  Federal  claim  is  to 
present  his  Federal  right  before  the  entry 
of  final  judgment.  The  denial  of  a  motion 
or  petition  for  rehearing  may  well  be 
based  on  the  ground  that  the  party  pre- 
senting the  motion  or  petition  for  rehear- 
ing has  no  standing  to  litigate  issues  not 
presented  to  the  court  for  decision  before 
his  case  had  passed  to  final  judgment.  The 
settled  rule  of  this  court  is  that  the  mere  | 
denial  of  a  motion  or  petition  for  rehear- 
ing, in  which  the  plaintiff  in  error  for  the  I 
first  time  asserts  a  Federal  claim,  does  not  I 
constitute  an  advene  decision  entitling  the 
794 


moving  party  in  that  proceeding  to  review 
the  Federal  question  in  this  court. 

McCorquodale  v.  Texas,  211  U.  S.  438, 
53  L.  ed.  269,  29  Sup.  Ct.  Rep.  146;  Waters- 
Pierce  Oil  Co.  V.  Texas,  212  U.  S.  118,*  68 
L.  ed.  434,  29  Sup.  Ct.  Rep.  227;  Chicago, 
L  &  L.  R.  Co.  V.  McGuire,  196  U.  S.  129, 
49  L.  ed.  413,  25  Sup.  Ct.  Rep.  200;  Cleve- 
land &  P.  R.  Co.  V.  Cleveland,  235  U.  S. 
50,  59  L.  ed.  127,  35  Sup.  a.  Rep.  21;  MU- 
ler  V.  Texas,  153  U.  S.  535,  38  L.  ed.  818, 
14  Sup.  Ct.  Rep.  874;  Capital  Nat.  Bank 
V.  First  Nat.  Bank,  172  U.  S.  426,  43  L.  ed. 
502,  19  Sup.  Ct.  Rep.  202. 

Mr.  Justice  Hughes  delivered  the  opin- 
ion of  the  court: 

The  Capital  National  Bank  of  Lincoln, 
Nebraska,  suspended  payment  on  January 
21,  1803.  The  plaintiffs  in  error  were  un* 
paid  depositors  and  brought  these  actions 
against  directors  of  the  bank  to  recover 
damages  attributed  to  false  representations 
of  the  bank's  condition.  With  their  denials 
of  breach  of  duty,  the  defendants  averred 
that  their  liability,  if  any,  was  to  be  de- 
termined [544]  by  the  provisions  of  the 
national  bank  act.  Judgment  in  favor  of  the 
plaintiffs,  upon  the  verdict  of  a  jury,  was 
affirmed  by  the  supreme  court  of  the  state. 
Yates  V.  Jones  Nat.  Bank,  74  Neb.  734, 
105  N.  W.  287.  It  was  held  that  the  ac- 
tions were  for  deceit,  at  common  law,  and 
the  judgments  were  sustained  upon  that 
ground.  Upon  writ  of  error  the  judgments 
were  reversed.  206  U.  S.  158,  181,  61  L. 
ed.  1002,  1015,  27  Sup.  Ct.  Rep.  638.  It 
was  the  view  of  the  court,  even  if  it  were 
conceded  "that  there  was  some  evidenct 
tending  to  show  the  making  of  alleged  writ- 
ten representations  other  than  those  con- 
tained in  the  official  reports  made  by  the 
association  to  the  Comptroller  of  the  Cur- 
rency, and  published  in  conformity  to  the 
national  bank  act,  that  such  latter  state- 
ments were  coimted  upon  in  the  amended 
petition  and  were,  if  not  exclusively,  cer- 
tainly principally,  the  grounds  of  the  al- 
leged false  representations  covered  by  th« 
proof."  Id.  p.  171.  It  was  therefore  con- 
cluded that  the  recovery  had  been  based  upoo 
conduct  of  the  defendants  in  the  discharge 
of  duties  imposed  by  the  Federal  statnte; 
that,  with  respect  to  such  conduct,  the  stat- 
ute (Rev.  Stat.  §  5239,  Comp.  Stat.  191S, 
§  9831)  furnished  an  exclusive  test  of  lia- 
bility; and  that  this  test  had  not  been  ap- 
plied. It  was  held  that  responsibility,  1^ 
the  terms  of  the  statute,  arose  ffom  its  vio- 
lation "Icnowingly,''  and  hence  that  ''sonis- 
thing  more  than  negligence  is  required; 
that  is,  that  the  violation  must  in  effect  be 
intentional.''  Id.  pp.  179,  180. 
Upon  remand,  the  petitions  were  amend- 

840  U.  8. 


1016. 


JONES  NATIONAL  BANK  ▼.  TATEa 


644-547 


td,  but  there  was  no  material  change  in  the 
nature  of  the  causes  of  action.  By  agree- 
ment, the  several  cases  were  tried  together, 
and  trial  was  had  by  the  oourt  without  a 
jury.  Official  reports,  as  published,  of  the 
condition  of  the  bank,  were  introduced  in 
evidence.  Two  of  these  (of  December  28, 
1886,  and  December  9,  1892)  had  been  an- 
nexed to  the  petition,  and  the  allegations 
were  broad  enough  to  embrace  others.  It 
appeared  that  the  official  reports  of  Decem- 
ber 28,  1886,  December  12,  1888,  September 
30,  1889,  [545]  July  9,  1891,  December  2, 

1891,  and  December  9,  1892,  had  been  at- 
tested by  the  defendant  Yates;  those  of 
September    26,    1891,   and    September    30, 

1892,  by  Ellis  P.  Earner,  the  intestate  of  the 
defendant,  Louisa  Hamer;  and  those  of  De- 
cember 28,  1886,  August  1,  1887,  October  2, 
1890,  December  19,  1890,  and  July  9,  1891, 
by  the  defendant,  David  £.  Thompson.  Each 
of  these  statements  showed  the  capital 
stock  intact  and  also  surplus  and  undivided 
profits. 

On  behalf  of  the  defendants  Yates  and 
Hamer,  the  following  special  findings  among 
others  were  requested: 

"III.  That  neither  the  defendant  Charles 
E.  Yates  nor  Ellis  P.  Hamer,  the  deceased, 
knowingly  violated  or  knowingly  permitted 
any  of  the  officers,  agents,  or  servants  of 
the  Capital  National  Bank  to  violate  any 
of  the  provisions  of  the  national  banking 
act  under  which  said  bank  operated. 

<TV.  That  neither  the  defendant  Charles 
£.  Yates  nor  the  deceased,  Ellis  P.  Hamer, 
knowingly  participated  in  or  assented  to 
any  violation  of  any  of  the  provisions  of 
said  national  'banking  act  by  «ny  of  the 
officers,  agents,  or  servants  of  said  Capital 
National  Bank.** 

"IX.  That  the  defendant  Charles  E. 
Yates,  in  attesting  said  reports  of  date 
December  28,  1886,  and  December  9,  1892, 
did  not,  with  actual  knowledge  thereof  or 
intentionally,  make  an  untrue  statement  or 
representation  of  the  assets  or  liabilities  of 
said  Capital  National  Bank,  nor  of  any  of 
the  items  of  either  its  assets  or  liabilities. 
'*^.  That  neither  the  defendant  Charles 
E.  Yates  nor  the  deceased  Ellis  P.  Hamer, 
with  actual  knowledge  or  intentionally, 
made  any  untrue  statement  or  representa- 
tion of  any  or  all  of  the  assets  of  the  Capi- 
tal National  Bank  in  any  or  all  of  the 
statements  or  reports  made  to  the  Comp- 
troller of  the  Currency  and  published  by 
said  bank,  as  retjuired  by  the  national  bank- 
ing act,  which  reports  are  shown  in  the 
testimony  in  this  case." 

[646]  The  trial  court  found  "against 
each  of  the  defendants  and  in  favor  of  the 
plaintiff^  respecting  the  third  and  fourth  re- 
quests. On  the  ninth  request^  the  oourt 
40  Ii«  ed. 


answered  "in  the  negative"  as  to  the  report 
of  December  28,  1886,  and  "in  the  affirma- 
tive" as  to  the  report  of  December  9,  1892; 
and  on  the  tenth  request,  the  court  found 
"in  the  affirmative."  These  rulings  "in  the 
afilrmative"  were  taken  to  be  findings  against 
these  defendants,  each  of  whom  at  once  (on 
a  motion  to  set  aside  the  findings  and  for 
a  new  trial)  filed  exceptions, — ^the  defend- 
ant Yates  stating  that  the  court  "erred  in 
finding  against  pendant  on  the  ninth  re- 
quest as  to  report  Deo.  9,  1892,"  and  each 
of  the  defendants  Yates  and  Hamer  stating 
that  the  oourt  "erred  in  finding  against  de- 
fendant on  the  tenth  request."  » 

Among  the  requests  for  findings  submitted 
by  the  defendant  Thompson  were  the  fol- 
lowing: 

"4.  Whether  this  defendant  at  any  time 
prior  to  its  failure  or  suspension  had  ac- 
tual personal  knowledge  that  any  of  the 
official  statements  made  by  the  Capital  Na- 
tional Bank  to  the  Comptroller  of  the  Cur- 
rency, and  referred  to  in  the  petition  or  the 
evidence,  were  in  any  material  respect  false 
and  untrue. 

"6.  Whether  this  defendant  in  fact  par- 
ticipated in  any  of  the  official  reports  made 
by  the  Capital  National  Bank  to  the  Comp- 
troller of  the  Currency  other  than  the  five 
several  reports  dated  respectively,  Decem- 
ber 28,  1886,  August  1,  1887,  October  2, 
1890,  and  December  19,  1890,  and  July  9, 
1891. 

"6.  Whether  in  attesting  such  of  the  of* 
ficial  reports  of  the  Capital  National  Bank 
to  the  Comptroller  of  the  Currency  as  are 
shown  to  have  been  attested  by  him,  the 
defendant  acted  in  good  faith. 

"7.  Whether  in  attesting  such  of  the  of- 
ficial reports  of  the  Capital  National  Bank 
to  the  ComptroUer  of  the  Currency  as  are 
shown  to  have  been  attested  by  him,  the 
defendant  acted  fraudulently  and  with  ac- 
tual personal  [547]  knowledge  that  such 
reports  or  any  one  of  them  were  in  any 
material  respect  false  and  untrue." 

As  to  the  fourth  request,  the  trial  oourt 
found  "in  the  affirmative,"  and  the  defend- 
ant Thompson  filed  his  objection  that  the 
finding  was  "not'  sustained  by  sufficient  evi- 
dence" and  was  "not  oonsistent  with  the 
findings  made  in  response  to  the  sixth  and 
seventh  requests."  As  to  the  fifth  request, 
the  trial  oourt  found  "that  the  defendant 
attested  only  five  reports  mentioned  in  said 
request."  As  to  the  sixth  and  seventh  re- 
quests, it  was  found: 

"Respecting  the  sixth  and  seventh  re- 
quests of  the  def  endanty  the  oourt  finds  that 
the  defendant  had  no  actual  personal  knowl- 
edge of  the  truth  or  falsity  of  the  reports 
made  to  the  ComptroUer,  attested  by  him, 
but  in  attesting  such  reports  tlie  oourt  finds 


647-660 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tibm, 


that  the  defendant  relied  upon  the  state- 
ments made  to  him  by  the  president  and 
cashier  of  the  bank,  and  without  any  in- 
vestigation, and  that  at  the  time  of  attest- 
ing such  statements  the  defendant  knew 
that  he  had  no  personal  knowledge  of  the 
truth  or  falsity  of  such  reports,  and  that 
the  same  were  attested  recklessly  and  with- 
out performing  his  duties  as  a  director  to 
ascertain  the  truth  or  falsity  of  such  re- 
ports before  the  same  were  attested  by  him, 
and  in  this  respect  the  court  finds  that  the 
same  were  not  made  in  good  faith." 

The  trial  court,  upon  its  own  motion, 
found  in  each  case,  as  to  all  the  defendants, 
at  follows: 

"The  Capital  National  Bank,  at  the  time 
it  assumed  that  name  and  at  the  time  it 
increased  its  capital  stock  to  $300,000,  had 
sustained  losses  greatly  in  excess  of  its 
purported  capital  stock,  and  that  it  never, 
in  fact,  had  any  capital  stock,  undivided 
profits,  or  surplus,  and  that  it  was  at  all 
times  insolvent  and  so  continued  up  to  the 
time  it  ceased  to  do  business,  on  January 
21,  1803,  at  which  time  its  liabilities  ex- 
ceeded its  assets  by  more  than  a  million 
dollars. 

.  [648]  "The  court  finds  that  from  and 
after  September,  1801,  the  said  Ellis  P. 
Hamer,  and  the  defendants  Yates  and 
Thompson,  and  each  of  them,  had  knowl- 
edge and  knew  that  the  statements,  adver- 
tisements, and  representations  of  the  bank's 
financial  condition  and  capital  stock,  both 
oflicial  and  unofficial  and  voluntary,  shown 
by  the  evidence,  were  being  published  in  the 
newspapers  and  sent  to  the  plaintiff,  by  the 
oflicers  of  the  bank,  as  alleged  in  the  amend- 
ed petition,  and  that  they  contained  the 
names  of  all  the  directors,  including  said 
Ellis  P.  Hamer,  and  the  defendants  Yates 
and  Thompson,  and  purported  to  be  made 
and  published  under  and  by  their  authority, 
in  their  names,  and  with  their  sanction  and 
consent. 

"The  court  further  finds  that  the  said 
Ellis  P.  Hamer  and  the  defendants  Yates 
and  Thompson,  and  each  of  them,  from  and 
after  September,  1801,  had  knowledge  and 
knew  said  statements,  representations,  and 
advertisements  aforesaid  contained  material 
false  representations  of  the  financial  condi- 
tion of  said  bank,  and  were  in  fact  false 
and  untrue,  as  in  plaintiff's  amended  peti- 
tion alleged,  and  with  knowledge  of  all  of 
the  matters  and  facts  aforesaid  they  and 
each  of  them  knowingly  permitted,  assented 
to»  and  allowed  the  same  to  be  nmde,  pub- 
lished, advertised,  and  sent  to  plaintiff,  as 
aforesaid,  as  in  the  amended  petition  al- 
leged. That  said  statements  and  advertise- 
ments aforesaid  showed  and  represented  the 
bank  to  be  in  a  sound,  solvent,  and  pros- 
796 


perous  financial  condition  when  in  fact  it 
was  at  all  times  wholly  insolvent  and  un- 
able to  pay  its  liabilities." 

It  was  further  found  "that  the  allega- 
tions of  plaintiff's  amended  petition  are 
true."  The  trial  court,  as  to  each  of  the 
defendants,  also  set  forth  its  conclusion  that 
the  plaintiffs  were  entitled  to  recover  "in 
an  action  of  deceit  under  the  principles  of 
the  common  law  exclusive  of  the  require- 
ments of  the  national  banking  act,"  and 
fixed  the  damages  sustained.  Motion  for  a 
new  trial  was  denied. 

[540]  Upon  appeal,  the  judgments  in  tlie 
several  cases  were  reversed  by  the  supreme 
court  of  the  state,  and  the  actions  were  dis- 
missed. 03  Neb.  121,  130  N.  W.  844,  1135. 
The  appeals  were  heard  by  six  judges,  two 
of  whom  dissented  from  the  conclusion 
reached.  Three  judges  concurred  in  one 
opinion  (delivered  by  Hamer,  J.),  taking 
the  view  that  the  amended  petitions  con- 
tained "no  material  additional  statement 
of  facts,"  that  they  "still  charge  the  de- 
fendants with  making  false  statements  to 
the  Comptroller  of  the  Currency  as  to  the 
condition  of  the  Capital  National  Bank,  and 
this  is  the  main  foundation  or  basis  for 
recovery,"  and  that  the  plaintiffs  "having 
failed  to  allege  and  prove  that  the  defend* 
ants  personally  knew  of,  or  personally  par- 
ticipated in,  the  acts  of  the  oflicers  of  the 
bank  of  which  they  now  complain,"  were 
not  entitled  to  recover  under  the  decision 
of  this  court  as  to  the  rule  of  liability 
established  by  the  Federal  act.  Id.  pp.  123, 
130.  The  remaining  judge  (Letton,  J.), 
whose  concurrence  was  essential  to  the  re- 
versal, stated  his  views  in  a  separate 
opinion.  After  pointing  out  that  the  issues 
were  the  same  as  when  the  case  was  pre- 
sented to  this  court  on  the  former  writ  of 
error,  and  that  this  court  had  held  that  a 
Federal  question  was  involved,  he  said: 

"I  agree  with  the  former  judgment  of 
this  court  and  that  of  the  several  inferior 
Federal  tribunals  before  which  the  question 
was  presented  that  the  petitions  state  a 
cause  of  action  at  common  law  for  deceit, 
but  tiiink  this  court  is  bound  by  the  opinion 
of  the  Supreme  Court  of  the  United  States. 
I  am  also  inclined  to  the  view  that  the  evi- 
dence would  support  a  judgment  upon  auch 
a  theory  of  the  case.  The  findings  of  the 
district  court  are  to  that  effect.  I  am  not 
satisfied  they  are  unsustained  by  the  evi- 
dence. The  presumption  is  that  they  are 
so  sustained;  but  I  have  not  examined  the 
evidence  so  critically  as  would  be  necessary 
to  determine  this,  for  the  reason  that>  un- 
der the  holding  of  the  Supreme  Court  of  the 
United  States  as  to  the  measure  [550]  of 
duty  and  of  liability  of  directors  under  the 
banking  laws  of  the  Unitegd  States,  I  think 

940  U.  S. 


1915. 


JONES  NATIONAL  BANK  v.  YATES. 


650-552 


a  case  has  not  been  made.  For  that  reason 
alone,  I  concur  in  the  conclusion."  Id.  p. 
131. 

The  appellees  moved  for  a  rehearing,  con- 
tending, in  part,  that  the  court  had  erred 
in  denying  to  them  **the  right  to  recover 
under  the  national  bank  laws."  On  this 
motion  the  court  was  equally  divided  and 
the  motion  wa|  denied.  And  these  writs  of 
error  to  review  the  judgments  of  reversal 
and  dismissal  have  been  prosecuted. 

1.  It  is  insisted  that  the  writs  should  be 
dismissed  in  the  view  that  the  plaintiffs  in 
error  sought  to  enforce  liability  upon  non- 
Federal  grounds  and  that  the  Federal  ques- 
tion was  raised  exclusively  by  the  defend- 
ants in  error.  But  this  objection  ignores 
the  nature  of  the  plaintiffs'  case.  The  fact 
that  their  petitions  did  not  refer,  in  terms, 
to  the  Federal  statute,  is  not  controlling. 
Thomas  v.  Taylor,  224  U.  S.  73,  78,  70,  56 
L.  ed.  673,  676,  677,  32  Sup.  Ct.  Rep.  403; 
Grand  Trunk  Western  R.  Co.  v.  Lindsay, 
233  U.  S.  42,  48,  58  K  ed.  838,  842,  34  Sup. 
Ct  Rep.  581,  Ann.  Cas.  1914C,  168.  It  was 
alleged  that  statements  published  by  the  de- 
fendants, acting  as  directors  and  officers  of 
the  bank,  with  respect  to  its  financial  con- 
dition, were  false,  and  were  known  to  be 
false,  and  were  made  with  intent  to  deceive 
plaintiffs  and  others.  Two  of  these  state- 
ments— pffidal  reports  formally  attested — 
were,  as  we  have  said,  annexed  to  the  peti- 
tions. The  proof  of  representations  chiefly 
concerned  these  reports  and  others  of  a 
similar  sort.  In  contemplation  of  law,  the 
question  upon  the  case  made  by  the  plain- 
tiffs was  essentially  one  as  to  the  liability 
of  these  directors  for  conduct  governed  by 
the  Federal  act.  The  conclusion  of  the 
trial  court  that  there  could  be  a  recovery 
at  common  law,  independent  of  the  Federal 
statute,  did  not  alter,  the  inherent  character 
of  the  actions.  Recognizing  that  these  must 
be  deemed  to  rest  upon  transactions  falling 
within  the  purview  of  that  statute,  and  that 
the  plaintiffs'  rights  must  be  measured  ac- 
cordingly, the  supreme  court  of  the  state  re- 
versed the  judgments  [551]  and  dismissed 
the  actions.  Although  the  defendants  al- 
leged in  their  answers  that,  if  any  liability 
attached  to  them  as  directors,  it  was  deter- 
mined by  the  Federal  act,  the  construction 
of  which  was  necessarily  involved,  this  was 
not,  properly  speaking,  a  matter  of  affirma- 
tive defense.  What  is  called  the  defendants' 
assertion  of  Federal  right  was  simply  their 
contention  as  to  the  essential  elements  of  the 
plaintiffs'  cause  of  action.  In  Thomas  v. 
Taylor,  supra,  the  case  was  framed  in  de- 
ceit under  the  oonmion  law,  but  the  appel- 
late courts  of  the  state  decided  "that  it  was 
the  facts  pleaded,  and  not  the  technical  des- 
ignation of  the  action,  which  constituted 
60  Jj.  ed. 


grounds  of  recovery."  We  accepted  that  de- 
cision, saying:  ''There  is  nothing  in  the 
national  banking  laws  which  precludes  such 
view.  Those  laws  are  not  concerned  with 
the  form  of  pleadings.  They  only  require 
that  the  rule  of  responsibility  declared  by 
them  shall  be  satisfied."  If  the  pUintiffs' 
cause  of  action  required  the  application  of 
the  Federal  statute  in  defining  the  liability 
of  these  directors  with  respect  to  the  acts 
alleged  and  proved,  the  plaintiffs  were  en- 
titled to  its  correct  application.  Their 
case,  as  made  by  their  pleadings  and  proofs, 
is  not  to  be  treated  as  of  one  character  for 
the  purpose  of  dismissing  it  in  the  state 
court,  and  as  of  another  sort  for  the  pur- 
pose of  denying  their  right  to  complain  of 
the  dismissal.  We  conclude  that  this  court 
has  jurisdiction. 

2.  It  is  apparent  that  there  were  no  find- 
ings of  fact  by  the  supreme  court  of  the 
state.  The  actions  being  at  law  and  trial 
by  jury  being  waived,  the  findings  of  fact 
made  by  the  trial  court —  as  we  understand 
the  local  practice — had  "the  same  force  and 
effect"  as  the  verdict  of  a  jury.  Citizens  Ins. 
Co.  V.  Herpolsheimer,  77  Neb.  232, 100  N.  W. 
160;  Dorsey  v.  Wellman,  85  Neb.  262,  122 
N.  W.  980;  Darr  v.  Kansas  City  Hay  Co. 
85  Neb.  665,  124  N.  W.  103;  Madison  Nat. 
Bank  v.  Gross,  98  Neb.  684,  154  N.  W.  207. 
It  was  not  a  case  of  a  trial  de  novo  upon 
appeal,  as  in  an  equity  suit.  First  Nat. 
Bank  v.  Crawford,  78  [552]  Neb.  665,  111 
N.  W.  587.  But,  apart  from  these  consid- 
erations, findings  of  fact  by  the  supreme 
court  would  necessarily  require  the  action  of 
a  majority  of  that  court,  and  it  is  plain 
that  the  opinion  of  thie  three  judges,  un- 
aided by  the  concurrence  of  the  fourth, 
could  not  be  regarded  as  embodying  such 
findings.  Justice  Letton,  whose  concur- 
rence in  the  result  made  the  reversal  pos- 
sible, stated  specifically  the  sole  ground  of 
his  action,  and  his  statement  did  not  pur- 
port to  be  the  resolving  questions  of  fact. 
After  saying  that  he  was  inclined  to  the 
view  that  the  evidence  would  support  a 
judgment  upon  a  cause  of  action  at  oonmion 
law  for  deceit,  and  that  "the  findings  of 
the  district  court"  were  "to  that  effect," 
he  added  that  he  was  not  satisfied  that 
these  findings  were  "unsustained  by  the  evi- 
dence." He  considered  the  presumption  to 
be  that  they  were  "so  sustained,"  but  he 
had  "not  examined  the  evidence  so  critic- 
ally as  would  be  necessary  to  determine 
this,"  for  the  reason  that,  in  view  of  the 
holding  of  this  court  "as  to  the  measure 
of  duty  and  of  liability  of  directors"  under 
the  Federal  act,  he  thought  that  "a  case 
had  not  been  made."  "For  that  reason 
alone"  he  concurred  in  the  conclusion. 

It  is  manifest  that  this  was  simply  the 

797 


662-664 


SUPREME  CX)URT  OF  THE  UNFIED  STATES. 


Oct.  Twmm., 


eocpression  of  an  opinion  with  respect  to  the 
legal  sufficiency  of  the  plaintiffs'  case.  That 
is,  the  deciaiye  ruling — upon  which  the  re- 
Tarsal  rested — ^was  that,  as  matter  of  Inyf, 
Implying  the  Federal  statute,  the  plaintiffs 
were  not  entitled  to  their  recovery.  And 
the  Judgment  as  entered  upon  appeal  sim- 
ply set  forth  that  the  court,  finding  "error 
apparent  in  the  record  of  the  proceedings 
and  judgment,"  reversed  and  dismissed. 

In  this  state  of  the  record,  for  the  pur- 
pose of  determining  whether,  in  thus  revers- 
ing the  judgments  and  depriving  the  plain- 
tiffs of  their  recovery,  the  Federal  question 

was  wrongly  decided,  there  are  two  questions 
to  be  considered:  (a)  whether  the  facts 
found  \}j  the  trial  court  [553]  Justified  a 
recovery  under  the  Federal  law,  and,  if  so, 
(b)  whether  there  was  substantial  evidence 
to  support  these  findings,  as  the  duty  to  de- 
cide the  Federal  question  in  its  very  nature 
involves  this  further  inquiry.  Dower  v. 
Richards,  151  U.  S.  668,  667,  38  L.  ed.  305, 
308,  14  Sup.  Ct.  Rep.  452,  17  Mor.  Min. 
Rep.  704;  Stanley  v.  Schwalby,  162  U.  S. 
256,  277,  278,  40  L.  ed.  060,  067,  968,  16 

.  Sup.  Ct.  Rep.  754;  Kansas  City  Southern 
R.  Co. /v.  C.  H.  Albers  Commission  Co.  223 
U.  S.  573,  591,  592,  56  L.  ed.  556,  565,  566, 
82  Sup.  Ct.  Rep.  316;  Creswill  v.  Grand 
Lodge,  K.  P.  225  U.  S.  246,  261,  56  L.  ed. 
1074,  1080,  32  Sup.  Ct.  Rep.  822;  Southern 
P.  Co.  V.  Schuyler,  227  U.  S.  601,  611,  57 
L.  ed.  662,  669,  43  L.RJl.(N.S.)  901,  33 
Sup.  Ct.  Rep.  277;  North  Carolina  R.  Co. 
T.  Zachary,  232  U.  S.  248,  259,  58  L.  ed. 
691,  595,  34  Sup.  Ct  Rep.  305,  Ann.  Cas. 
1914C,  159;  Carlson  v.  Washington,  234 
U.  S.  103,  106,  58  L.  ed.  1237,  1238,  34  Sup. 
Ct.  Rep.  717. 

8.  In  addition  to  the  general  finding  in 
each  case  that  the  allegations  of  plaintiffs' 
amended  petition  were  true,  we  have  noted 
that  the  court  found  specially  that  the  bank 
had  sustained  losses  greatly  in  excess  of 
its  purported  capital  stock;  that  it  never 
"had  any  capital  stock,  undivided  profits 
or  surplus;"  that  it  "was  at  all  times  in- 
solvent and  so  continued  up  to  the  time  it 
ceased  to  do  business  on  January  21,  1893," 
when. "its  liabilities  exceeded  its  assets  by 
more  than  a  million  dollars;"  and  that  the 
published  statements  shown  by  the  evidence, 
embracing  the  official  reports  to  which  ref- 
erence has  been  made,  represented  the  bank 
to  be  "in  a  sound,  solvent,  and  prosperous 
financial  condition"  when  in  fact  it  was 
"wholly  insolvent  8;nd  unable  to  pay  its 
liabilities."  The  official  reports  covered  by 
the  findings  were  those  made  to  the  Comp- 
troller of  the  Currency  and  published  at  the 
times  we  have  mentioned,  in  pursuance  of 

/  5211  of  the  BeriMed  Statutes  (Comp.  Stat. 


1913,  i  9774 ).i  [554]  While,  as  pointed  out 
on  the  former  writ  of  error,  the  act  did  not 
expressly  require  that  these  reports  "should 
contain  a  'true'  statement  of  the  condition 
of.  the  association,"  yet  "by  necessary  im- 
plication, such  is  the  character  of  the  state- 
ment required  to  be  made,  and  by  the  like 
implication  the  making  and  publishing  of 
a  false  report  is  prohibited."  206  U.  S. 
p.  177.  And  as  it  is  plain  that  the  making 
of  these  official  reports,  found  to  be  false, 
was  a  violation  of  the  statute,  the  question 
is  whether,  the  findings  made  a  case  within 
§  5239  of  the  Revised  SUtutes  (Comp.  Stat. 
1913,  §  9831),  which  provides  that  where 
the  statute  is  "knowingly"  violated  or  is 
"knowingly"  permitted  to  be  violated,  as 
stated,  "every  director  who  participated  in 
or  assented  to"  such  violation  shall  be  lia- 
ble individually  for  all  damages  thereby 
sustained  by  ''the  association,  its  share- 
holders, or  any  other  person," — a  civil  lia- 
bility which  may  be  enforced  in  the  state 
court.    Id.  pp.  180,  181. 

As  to  the  directors  Yates  and  Hamer 
(the  former  having  attested  an  official  re- 
port to  the  Comptroller  of  the  Currency  as 
late  as  December  9,  1892,  and  the  latter 
having  attested  an  official  report  of  Sep- 
tember 30,  1892),  the  trial  court  not  only 
found  "against  each  of  the  defendants  and 
in  favor  of  the  plaintiff"  upon  the  special 
requests  for  findings  that  these  directors 
did  not  knowingly  participate  in  the  viola- 
tion of  the  act,  but  the  trial  court  also 
found  explicitly  that  each  of  these  direct- 

^  "Sec.  5211.  Every  association  shall 
make  to  the  Comptroller  of  the  dhirrency 
not  less  than  five  reports  during  each  year, 
according  to  the  form  which  may  be  pre- 
scribed by  him,  verified  by  the  oath  or  af- 
firmation of  the  president  or  cashier  of  such 
association,  and  attested  by  the  signature 
of  at  least  three  of  the  directors.  Each 
such  report  shall  exhibit,  in  detail  and  un- 
der appropriate  heads,  the  resources  and 
liabilities  of  the  [associations]  [associa- 
tion] at  the  close  of  business  on  any -past 
day  by  him  specified;  and  shall  be  trans- 
mitted to  the  Comptroller  within  five  days 
after  the  receipt  of  a  request  or  requisi- 
tion therefor  from  him,  and  in  the  same 
form  in  which  it  is  made  to  the  Comptroller 
shall  be  published  in  a  new^aper  published 
in  the  place  where  such  association  is  es- 
tablished, or  if  there  is  no  newspaper  in  the 
place,  then  in  the  one  publisned  nearest 
thereto  in  the  same  county,  at  the  expense 
of  the  association;  and  such  proof  of  publi- 
cation shall  be  furnished  as  may  be  required 
bv  the  Comptroller.  The  Comptroller  shall 
also  have  power  to  call  for  special  reports 
from  any  particular  association  whenever  in 
his  judgment  the  same  are  necessary  in 
order  to  a  full  and  complete  knowledge  of 
its  condition." 

140  U.  t» 


1915. 


JONES  NATIONAL  BANK  t.  YATES. 


654-567 


on  "from  [555]  and  after  September, 
1801,"  knew  that  the  official  statements  as 
to  the  bank's  financial  condition,  which 
were  shown  hj  the  evidence  to  have  been 
published,  "contained  material  false  repre- 
sentations of  the  financial  condition  of  said 
bank,  and  were  in  fact  false  and  untrue," 
and  that  these  directors,  with  knowledge 
"of  all  the  matters  and  facts  aforesaid," 
had  "knowingly  permitted,  assented  to,  and 
allowed  the  same"  to  be  made  and  pub- 
lished. The  findings  as  to  each  of  these 
directors  abundantly  supported  the  plain- 
tiffs' recovery  within  the  established  rule 
of  liability. 

With  respect  to  the  defendant  Thompson 
(the  latest  official  report  attested  by  him 
being  the  one  of  July  9,  1891 ) ,  we  have  seen 
that  the  court  found  that  he  had  "no  actual 
personal  knowledge  of  the  truth  or  falsity" 
of  the  reports  wiich  he  attested,  but  that 
in  attesting  them  he  "relied  upon  the  state- 
ments made  to  him  by  the  president  and 
cashier"  of  tlie  bank  "without  any  investiga- 
tion," and  that  "at  the  time  of  attesting  such 
statements"  he  "knew  that  he  had  no  per- 
sonal knowledge"  of  their  truth  or  falsity, 
and  that  they  "were  attested  recklessly  and 
without  performing  his  duties  as  a  director" 
to  ascertain  their  truth  or  falsity  before  at- 
testation, and  in  this  respect  that  these  re- 
ports "were  not  made  in  good  faith."     If 
this  finding,  fairly  construed,  did  not  im- 
port more  than  mere  neglect  or  inattention, 
it  would  not  be  sufficient  to  sustain  a  re- 
covery;  for  Congress  did  not  make  negli- 
gence the  test  of  liability,  but  the  fact  that 
the  act  was  violated  knowingly,  although 
there  may  be  a  violation  "in  effect '  inten- 
tional," and  therefore  within  the  statute, 
"when  one  deliberately  refuses  to  examine 
that   which   it   is   his   duty   to   examine." 
Thomas  v.  Taylor,  224  U.  S.  73,  78,  79,  66 
L.  ed.  673,  676,  677,  32  Sup.  Ct.  Rep.  403. 
In   that    case   the   directors,   having   been 
warned  by  the  bank  examiner  and  Comp- 
troller of  the  doubtful  character  of  certain 
assets,  still  represented  them  to  be  good; 
and  their  reckless  report,  in  disregard  of 
the  official  direction,  was  foimd  to  have  the 
[556]  quality  of  an  intentional  breach  of 
the  defined  duty.    But  in  the  present  case, 
w^e  are  not  called  upon  to  determine  what 
should  be  deemed  to  be  involved  in  the  find- 
ing that  the  attestation  of  the  earlier  re- 
ports, which  were  attested  by  this  defend- 
ant, was  made  ''without  any  investigation" 
and  ''recklessly."    For  there  were  later  re- 
ports made  on  behalf  of  the  bank,  and  the 
defendant   is  not  excused  simply   by   the 
fact  that  he  did  not  attest  them.    His  lia- 
bility was  not  merely  with  respect  to  at- 
testation, but  for  knowingly  "participating 
in"  or  "a:3senting  to"  the  violation  of  the 
•0  Ij.  ad. 


act.  206  U.  S.  pp.  177-179.  U  the  defend- 
ant Thompson  participated  in  or  assented 
to  the  making  and  publication  of  the  official 
reports  to  the  Comptroller  of  the  Currency, 
which  were  made  in  the  year  1892,  know- 
ing that  they  were  false  reports,  he  was  lia- 
ble to  the  plaintiffs  deceived  and  damaged 
thereby  imder  the  express  terms  of  the  stat- 
ute; and  he  could  not  escape  this  liability 
simply  because,  while  he  thus  participated 
or  assented,  other  directors  gave  the  formal 
attestation.  And  the  trial  court  found,  not 
only  with  respect  to  Yates  and  Hamer,  but 
as  to  the  defendant  Thompson,  that  each  of 
them  after  September,  1891,  knew  that  the 
official  statements  as  to  the  condition  of  the 
bank,  shown  by  the  evidence,  were  in  fact 
false,  and  that  with  knowledge  of  the  facts 
stated  in  the  findings  with  respect  to  the 
condition  of  the  bank,  the  defendant  Thomp- 
son, as  well  as  the  others,  "knowingly  per- 
mitted, assented  to,  and  allowed"  the  same 
to  be  made  and  published.  This  was  a  suf- 
ficient finding  of  the  ultimate  fact  of  partic- 
ipation or  assent,  and  constituted  an  ade- 
quate basis  for  recovery. 

We  conclude  that  the  findings  of  the  trial 
court,  in  the  light  of  the  Federal  statute, 
supported  the  judgments  it. entered. 

4.  The  plaintiffs  in  error,  however,  are 
not  entitled  to  complain  of  the  reversal  as 
a  denial  of  Federal  right,  even  though  the 
judgments  were  supported  by  the  findings  of 
[557]  fact  made  by  the  trial  court,  if 
these  findings  themselves  were  not  sup- 
ported by  substantial  evidence. 

As  to  the  financial  condition  of  the  bank, 
there  is  no  room  for  controversy.  It  would 
be  difficult  to  conceive  of  a  case  of  more 
scandalous  maladministration  than  that 
which  the  testimony  portrays.  There  was 
evidence  of  manipulation  of  accounts,  of 
fictitious  and  falsified  entries,  of  fraudulent 
concealments.  It  cannot  be  said  that  there 
was  serious  effort  to  meet  this  evidence. 
There  was  no  attempt  to  palliate  the  of- 
fenses which  it  appeared  had  been  commit- 
ted by  the  executive  officers  in  the  conduct  of 
the  bank's  affairs.  But  these  directors  were 
not  accountants;  presumably  they  relied  up- 
on the  books  as  containing  accurate  items, 
and  there  is  no  basis  for  the  conclusion  that 
they  had  knowledge  of  fictitious  or  falsified 
entries  in  the  books,  or  of  the  fraudulent 
transactions  which  such  entries  were  intend- 
ed to  conceal,  and  which  were  revealed  after 
the  bank  failed.  With  respect  to  such  con- 
cealed transactions,  we  find  nothing  to  show 
that  the  directors  knowin^y  participated 
in,  or  assented  to,  a  violation  of  the  statute. 

We  pass,  therefore,  to  matters  of  a  dif- 
ferent sort  which  lay  easily  within  the  ken 
of  the  directors.  The  bank  had  been  in- 
corporated as  the  Marsh  HiJtona3L'&issi&L«>aDi 


557-^60 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Teem, 


the  year  1883,  with  a  capital  stock  of  $100,- 
000.  The  assets  and  liabilities  of  a  preced- 
ing concern,  Marsh  Brothers,  Mosher,  & 
Company,  were  transferred  to  the  bank  and 
became  its  assets  and  liabilities.  In  1884, 
the  name  was  changed  to  the  Capital  Na- 
tional Bank  of  Lincoln;  the  capital  stock 
was  then  increased  to  $200,000,  and  in 
1886  there  was  a  further  increase,  making 
the  total  capital  stock  $300,000.  Yates, 
Hamer,  and  Thompson  became  directors  in 
1884,  and  continued  as  such  until  the  fail- 
ure of  the  bank  in  January,  1803.  There 
were  seven  directors  in  all,  including  C.  W. 
Mosher,  the  president.  It  appears  that,  at 
the  time  of  the  failure,  the  bank's  assets  at 
their  face  [558]  value,  as  shown  by  the 
books,  were  about  $1,031,000.  The  liabili- 
ties, as  shown  by  the  books,  including  cap- 
ital stock,  amounted  to  about  $1,017,000; 
these  seem  to  have  been  in  fact  (including 
liabilities  on  rediscounts)  about  $1,760,000. 
Included  in  the  assets  above  stated,  the 
amount  of  $850,059.86  (in  face  value)  was 
in  bills  receivable  of  which  $155,560.84  were 
classed  by  the  receiver  as  doubtful  and 
$307,073.63  as  worthless.  The  actual  show- 
ing on  liquidation  appears  to  have  been 
even  worse;  the  total  amount  realized  from 
the  bills  receivable  (aggregating  $850,- 
050.86)  was  $229,520.82,  and  the  total 
amount  realized  from  all  the  assets  of  the 
bank  (including  rediscounted  items  placed 
in  the  hands  of  the  receiver  for  collection, 
and  excluding  stock  assessments)  seems  to 
have  been  less  than  $400,000. 

The  evidence  was  tliat  at  the  time  of  the 
failure  there  were  on  hand  worthless  notes 
of  C.  W.  Mosher,  the  president,  amounting 
to  $85,281.67;  of  the  cashier,  R.  C.  Outcalt, 
$54,166.90  (less  an  offset  of  $570.99)  ;  and 
of  the  Western  Manufacturing  Company 
(signed  by  E.  Hurlburt,  Jr.,  manager), 
$235,000.  This  concern  was  apparently  but 
another  name  for  C.  W.  Mosher;  the  testi- 
mony is  that  it  had  no  assets  and  ceased 
to  do  an  active  business  in  1889.  There 
were  also  notes  in  the  name  of  E.  W.  Mosher 
aggregating  $107,085.45,  which  it' was  testi- 
fied were  worthless,  save  for  a  collection  on 
collateral  of  less  than  $10,000.  According 
to  the  schedules  in  evidence  these  worthless 
notes  had  been  taken  since  June  1,  1892, 
that  is,  within  a  period  of  seven  months 
before  the  failure.  And  while  the  totals  of 
these  accounts,  respectively,  were  much 
larger  than  they  had  been  formerly,  the 
same  accoimts  embracing  loans  to  a  con- 
siderable amount  had  long  been  carried  and 
were  included  in  the  published  reports. 
There  was  evidence  that  there  had  been 
about  $200,000  of  worthless  notes  in  these 
accounts  in  January,  1892.  While  it  is  not 
necessary  for  the  present  purpose  to  [550] 
800 


go  further  back,  the  testimony  supports  the 
finding  of  the  trial  court  that  the  bank  in 
fact  not  only  had  no  surplus  or  undivided 
profits,  but  that  its  actual  condition  waa 
one  of  insolvency. 

In  the  fourteen  months  before  the  failure 
the  evidence  shows  three  of  the  official  re- 
ports made  to  the  Comptroller  of  the  Cur- 
rency and  published  in  the  newspapers  in 
Lincoln ;  those  of  December  2, 1891,  Septem- 
ber 30,  1892,  and  December  9,  1892.  The 
total  resources  in  these  reports  are  stated, 
respectively,  as  $1,143,946.88,  $1,033,561.11, 
and  $1,074,867.37.  Each  of  these  reports 
shows  the  capital  stock  unimpaired.  As  of 
December  2,  1891,  the  surplus  is  stated  to 
be  $32,000,  and  the  undivided  profits,  $23,- 
276.89;  as  of  September  30,  1892,  these 
items  are  $6,000  and  $11,978,  respectively; 
and  as  of  December  9,  1892,  $6,000  and 
$21,180.75.  In  January,  1892,  the  directors 
declared  a  dividend  of  5  per  cent,  and  in 
July,  1892,  a  further  dividend  of  4  per  cent. 
There  was  evidence  of  serious  discrepancies 
between  the  items  in  the  published  official 
reports  and  corresponding  items  as  shown 
by  the  books.  Without  attempting  to  state 
the  details  disclosed  by  the  voluminous  rec- 
ord, it  is  sufficient  to  say  that  it  was  clear- 
ly shown  by  evidence .  substantially  undis- 
puted that  these  reports  constituted  grossly 
false  representations  of  the  bank's  financial 
condition  upon  which  the  plaintiffs  were  in- 
vited to  rely  and  did  rely. 

There  was  also  substantial  basis  for  the 
finding  that  the  directors  assented  to  the 
making  and  publication  of  these  reports; 
for,  as  we  have  said,  whether  this  or  that 
director  attested  a  particular  report  is  not 
controlling  upon  the  question  of  assent. 
The  official  reports  required  by  law  are  the 
reports  of  the  bank,  and  not  simply  of  those 
signing  and  attesting.  As  the  reports  of 
the  bank,  they  are  made  under  its  author- 
ity and  presumably  with  the  assent  of  the 
board  of  directors!  Ttfking  the  proved  cir- 
cumstances into  consideration,  and  particu- 
larly in  the  light  of  the  [560]  activity  of 
these  directors,  to  which  we  shall  presently 
refer,  it  is  hardly  conceivable  that  they  did 
not  know  of  the  last-mentioned  official  re- 
ports which  were  made  on  behalf  of  the 
bank  and  published  in  Lincoln.  Certainly, 
the  fact  of  such  knowledge  on  the  part  of 
each  of  them  could  properly  be  found. 
There  is  no  suggestion  that  they  made  the 
slightest  objection  to  the  making  or  publi- 
cation of  these  reports,  and  the  evidence 
was  unquestionably  sufficient  to  show  their 
assent  to  this  action  on  behalf  of  the  bank. 

The  remaining  question  is  with  respect 
to  the  evidence  of  the  knowledge  of  tliese 
directors  of  the  falsity  of  these  official  re- 
ports, or  of  such  reckless  disregard  of  the 

S40  U.  S. 


1915. 


JOKES  NATIONAL  BANK  ▼.  YATSS. 


660-503 


truth  or  falsity  of  their  contents  as  would 
show  that  the  participation  in,  or  assent  to, 
the  violation  of  the  statute,  was  "in  efifect 
intentional.''  Under  date  of  September  8, 
1891,  the  Comptroller  of  the  Currency  ad- 
dressed a  letter  to  President  Mosher,  re- 
ferring to  a  report  of  an  examination  of 
the  bank,  and  criticizing  various  matters. 
It  was  evidently  in  view  of  this  communi- 
cation that  the  trial  court  took  September, 
1891,  as  the  time  after  which  the  directors 
had  knowledge  of  facts  showing  the  falsity 
of  the  reports.  Without  reciting  the  letter 
in  full,  it  is  sufficient  to  note  that  the  Comp- 
troller called  attention  to  two  loans  (one 
being  that  of  £.  W.  Mosher)  exceeding  the 
statutory  limit;  to  the  fact  that  at  the  time 
of  the  last  report  of  the  bank  the  over- 
drafts shown  by  the  books  largely  exceeded 
those  stated  in  the  report;  to  overdue  paper, 
with  the  statement  that  such  of  it  as  was 
good  should  be  collected  or  made  active  by 
renewal  with  satisfactory  security;  to  the 
excess  of  current  expenses  over  undivided 
profits;  and  to  the  fact  that  the  bank  had 
a  large  liability  on  account  of  rediscounted 
paper,  said  to  be  caused  by  the  falling  ofif 
in  deposits.  It  was  suggested  that  some  of 
the  loans  should  be  called  in  as  soon  as 
practicable,  and  the  letter  closed  with  the 
statement  that,  [561]  according  to  the  ex- 
aminer's report,  the  board  of  directors  had 
held  only  two  meetings  during  the  past 
year,  and  that  there  was  "no  record  of 
their  having  examined  or  approved  of  the 
loans  and  discounts."  It  was  pointed  out 
"that  the  conduct  of  affairs  of  a  national 
bank  is  by  law  devolved  upon  the  board  of 
directors,  and  that  regular  and  frequent 
meetings  are  therefore  very  desirable." 
The  defendants  insist  that  they  were  not 
apprised  of  this  letter  until  i|iter  the  fail- 
are.  There  was  evidence  tending  to  show 
that  it  was  considered  at  a  meeting  of  the 
board  in  September,  1891,  but,  in  addition 
to  explicit  denials,  there  was  testimony  to 
impeach  the  credit  of  the  witness  so 
testifying.  There  was,  however,,  another 
letter  from  the  Comptroller  of  the  Cur- 
rency under  date  of  February  16,  1892, 
whidi  admittedly  was  brought  to  the 
attention  of  the  directors.  This  letter, 
in  substance,  repeated  several  of  the 
criticisms  which  had  been  made  in  the  ear- 
lier letter;  it  referred  to  the  desirability  of 
collecting  as  soon  as  practicable  loans  that 
had  been  carried  for  a  number  of  years,  and 
to  the  agreement  of  Mosher  and  Outcalt  to 
reduce  their  liabilities  and  to  close  "the 
bulk  of  their  outside  interests,"  owing  to 
which  the  business  of  the  bank  had  suffered; 
it  again  emphasised  the  duty  of  the  direct- 
ors with  respect  to  the  conduct  of  the 
bank's  affairs;  and  it  concluded  with  a  re* 
60  li.  ed. 


f  quest  for  a  reply  over  the  directors'  "in- 
dividual signatures."  The  directors,  in- 
cluding those  whose  liability  is  now  in  ques- 
tion, accordingly  signed  a  reply,  under  date 
of  February  19,  1892,  which  purported  to 
furnish  explanations  an<f  promised  improve- 
ment It  was  stated  that  the  bank  had  al- 
ways had  a  discount  committee,  and  that  a 
vacancy  caused  by  the  death  of  a  former 
member  had  been  filled  by  the  appointment 
of  £.  P.  Hamer.  The  last-mentioned  di- 
rector also  wrote  to  the  Comptroller  on 
February  23,  1892,  to  the  effect  that  the 
manner  of  conducting  the  bank  had  not  been 
satisfactory  to  him,  and,  promising  better 
management,  [562]  he  added:  "Your  letter 
is  a  move  in  the  right  direction,  it  indicates 
that  we  the  directors  should  take  a  more 
positive  position  in  the  management  which 
I  for  one  shall  do." 

Apparoitly  the  Comptroller  of  the  Cur- 
rency was  not  satisfied.  For  it  appears  that 
he  wrote  another  letter  under  date  of  Au- 
gust 31,  1892,  which,  having  been  lost,  was 
not  introduced  in  evidence.  But  the  letter 
in  r^ly,  which  the  directors,  including 
Yates,  Hamer,  and  Thompson  signed  indi- 
vidually (under  date  of  September  19,  1892, 
as  stated  by  defendants'  counsel),  is  in  evi- 
dence and  its  significance  cannot  be  over- 
looked.   Among  other  things,  it  stated: 

"The  dividend  of  July  1st  was  |dl  right; 
the  expenses  since  then  have  exceeded  in- 
come by  reason  of  having  paid  taxes  &  in- 
terest on  certificates  of  deposits  to  an  un- 
expected amount  during  July.  The  item  of 
$8,000  losses  referred  to  was  an  estimate 
of  contingent  losses  k  not  any  particular 
loss  already  incurred,  but  referred  to  some 
matters  or  process  of  liquidation,  all  items 
mentioned  by  you  shall  receive  prompt  at- 
tention." 

There  was  thus  sufficient  evidence  from 
these  directors  themselves  that  they  were 
scrutinizing  the  affairs  ot  the  bank;  that 
prior  to  the  published  official  report  of  Sep- 
tember 30,  1892,  which  was  followed  by  the 
published  official  report  of  December  9,  1892, 
these  directors  were  examining  the  condi- 
tion of  the  bank,  that  they  were  consider- 
ing the  losses  sustained,  the  expenses  in- 
curred, and  the  basis  of  the  dividend  de- 
clared in  July.  These  were  not  casual  state- 
ments, but  deliberate  assertions  of  activity 
of  supervision  in  response  to  official  com- 
plaint. It  was  plainly  permissible,  despite 
their  disclaimers  and  denials,  to  attribute 
to  these  directors  the  knowledge  which  men 
of  ordinary  intelligence- would  readily  have 
obtained  with  respect  to  the  financial  condi- 
tion of  the  bank  in  the  course  of  the  super- 
vision which  they  professed  [563]  to  be 
actively  exercising.  Assuming  that  they 
were   ignorant   of    the    frauds    that   had 

51  801 


663,  504 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Temm^ 


been  committed  and  concealed  by  falsi- 
fied entries,  there  was  warrant  for  the 
oonclusion  that  they  could  not  have  failed 
to  acquire  sufficient  information  to  be 
aware  that  the  representations  in  the 
official  reports  of 'the  latter  part  of  the 
year  1892  were  materially  false  and  cal- 
culated to  deceive.  The  questions  of  fact,  so 
far  as  they  arose  upon  a  substantial  conflict 
in  evidence,  were  for  the  trial  court.  Citi- 
zens Ins.  Co.  V.  Herpolsheimer,  77  Neb.  232, 
109  N.  W.  160;  Madison  Nat.  Bank  ▼.  Gross, 
98  Neb.  684,  154  N.  W.  207.  It  is  not  neces- 
sary for  us  to  review  the  evidence  in  detail. 
It  is  sufficient  to  say  that  our  examination 
of  it  has  convinced  us  that  the  findings  of 
the  trial  court,  at  least  with  respect  to  the 
last-mentioned  reports,  had  substantial  sup- 
port; and,  in  this  view,  we  must  conclude 
that  the  reversal  of  the  judgments,  as  en- 
tered in  the  trial  court,  upon  the  ground 
of  the  legal  insufficiency  of  the  plaintiffs' 
case  when  tested  by  the  Federal  statute,  was 
error. 

The  judgments  of  the  Supreme  Court  of 
the  State  are  reversed  and  the  cases  are  re- 
manded with  instructions  to  reinstate  the 
judgments  entered  in  the  District  Court, 
which  are  affirmed.  Stanley  v.  Schwalby, 
162  U.  S.  255,  279-283,  40  L.  ed.  960,  968- 
970,  16  Sup.  Ct.  Rep.  754. 

It  is  sp  ordered. 


[664]    DETROIT   &    MACKINAC    RAIL- 
WAY COMPANY,  Plff.  in  Err., 

V. 

MICHIGAN     RAILROAD     COMMISSION 
and  Fletcher  Paper  Company. 

(See  S.  C.  Reporter's  ed.  564-572.) 

Error  to  state  court  — -  final  Jadgment  * 
mandamus. 

1.  A  jud^ent  of  the  highest  court  of  a 
state,   awardmg   a   writ   of   mandamus   to 


enforce  obedience  by  a  railway  company  to 
an  order  of  a  State  Railway  Commission 
directing  it  to  relay  i  mile  of  rails  removed 
by  it  from  a  5-mile  logging  spur,  and  to  re- 
sume service  thereon  on  condition  that  a 
suitable  bond  be  siven  to  indemnify  the 
railway  company  ^ould  the  Commission's 
order  ultimatelpr  be  vacated  in  a  pending 
suit  in  equitv,  is  '*final"  in  the  sense  of  the 
Judicial  Code,  §  237,  governing  writs  of 
error  from  the  Federal  Supreme  Court  to 
state  courts. 

[For  other  cases,  see  Appeal  and  Error.  I.  d. 
13,  in  Digest  Sup.  Ct.  1908.] 

Constitutional  law  — -  due  process  of  law 
— -  mandamus. 

2.  Requiring  obedience  by  mandamus  to 
an  order  of  a  Sto,te  Railway  Commission  di- 
recting «  railway  company  to  relay  i  mile 
of  rails  removed  by  it  from  a  5-mile  logging 
spur,  and  to  resume  service  thereon  pend- 
ing the  determination  of  a  suit  in  equity 
to  vacate  such  order  on  the  ground  that 
such  logging  spur  was  only  a  private  con- 
venience, not  a  part  of  the  railway  sys- 
tem, and  that  the  Commission  had  denied 
the  railway  company  an  adequate  oppor- 
tunity to  be  heard  on  that  question,--does 
not  deprive  the  railway  company  of  the  due 
process  of  law  guaranteed  by  U.  S.  Const., 
14th  Amend.,  where  the  grant  of  the  man- 
damus writ  was  conditioned  upon  the  giv- 
ing of  a  suitable  bond  to  indemnify  the  rail- 
way company  should  the  Commission's  order 
ultimately  be  vacated  in  the  equity  suit. 

[For  other  cases,  see  CoDstltutiooal  Law,  IV. 
b.  8,  in  Digest  Sup.  Ct.  1908.1 

[No.   68.) 

Argued  and  submitted  November  10,  191& 
Decided  AprU  3,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Michigan  to  review  a  judgment 
awarding  a  writ  of  mandamus  to  enforce 
obedience  by  a  railway  company  to  an  order 
of  the  Railway  Commission,  directing  it  to* 
relay  rails  removed  by  it  from  a  logging 
spur,  and  to  resume  service  thereon.  Af* 
firmed. 


Note. — On  the  general  subject  of  writs  of 
error  from  the  United  States  Supreme  Court 
to  state  courts — see  notes  to  Martin  v. 
Hunter,  4  L.  ed.  U.  S.  97;  Hamblin  v.  West- 
em  Land  Co.  37  L.  ed.  U.  S.  267;  Re 
Buchanan,  39  L.  ed.  U.  S.  884,  and  Kipley 
T.  Illinois,  42  L.  ed.  U.  S.  998. 

On  what  adjudications  of  state  courts  can 
be  brought  up  for  review  in  the  Supreme 
Court  of  the  United  States  by  writ  of  error 
to  those  courts — see  note  to  Apex  Transp. 
Co.  V.  Garbade,  62  L.R.A.  513. 

As  to  what  constitutes  due  process  of 
law,  generaly— see  notes  to  People  v. 
O'Brien,  2  L.RAl.  255;  Kuntz  ▼.  Sumption, 
2  L.R.A.  655;  Re  Gannon,  5  L.R.A.  359; 
Ulman  ▼.  Baltimore,  11  L.R.A.  224;  Oilman 
T.  Tucker,  13  URJk.  304;  Pearson  v.  Yew- 
dBJl  24  L,  ed.  U.  S.  436,  and  Wilson  v. 
North  Carolina,  42  L.  ed.  t.  8.  865. 


What  judgments  of  state  courts  are  final 
for  the  purpose  of  a  review  in  the  Su< 
preme  Court  of  the  United  States. 

This  question  is  discussed  in  a  note  to 
Schlosser  v.  Hemphill,  49  L.  ed.  U.  S.  1001, 
and  only  the  cases  decided  since  the  pub- 
lication of  that  note  are  here  considers. 

The  finality  of  the  judgment  of  the  high* 
est  court  of  a  state  is  to  be  tested  by  the 
form  of  the  judgment,  and  the  Federal  Su- 
preme Court  cannot,  for  the  purpose  of  de- 
termining whether  its  reviewing  power  ex- 
ists, resort  to  the  state  law  for  the  purpose 
of  converting  a  judgment  not  on  its  face 
final  into  one  final  in  character.  Louisiana 
Nav.  Co.  V.  Ovster  Commission,  226  U.  8.  99, 
57  L.  ed.  138',  33  Sup.  Ct.  Rep.  78. 

Any  judgment  which  determines  the  par- 
ticular cause  is  finaL  Hence  a  jud^pnent  of 
the  highest  court  of  a  state,  finally  dispos* 

140  U.  8. 


1915. 


DETROIT  ft  M.  R.  00.  ▼.  MICHIGAN  R.  COM. 


See  same  case  below,  178  Mich.  230,  144 
N.  VV    r«  0. 
The  facts  are  stated  in  the  opinion. 

Messrs.  Fred  A.  Baker  and  James  Mc- 
Nfunara  submitted  the  cause  for  plaintiff 
in  error: 

It  was  not  competent  for  the  supreme 
court  of  Michigan,  while  the  case  in  the 
.Wayne  circuit   was   pending  and  undeter- 


mined, to  order  the  railroad  company  to 
restore  the  Tubbs  branch  and  to  resume 
service  thereon. 

McKechnie,  Magna  Charta,  p.  434;  De 
Lima  v.  BidweU,  182  U.  S.  1,  45  L.  ed.  1041, 
21  Sup.  Ct.  Rep.  743;  Wadley  Southern  R. 
Co.  y.  Georgia,  235  U.  S.  651,  59  L.  ed.  405, 
P.  U.  R.  1915A,  106,  35  Sup.  Ct.  Rep.  214. 

The  failure  of  the  Michigan  Railroad 
Commission  to  carry  out  its  agreement  to 


ing  of  a  writ  of  prohibition  sued  out  under 
Ala.  Code  1907.  §§  4864-4867,  4872,  to  pre- 
vent an  inlerior  court  from  taking  jurisdic- 
tion of  an  action,  is  a  final  judgment,  with- 
in the  meaning  of  the  Judicial  Code,  §  237, 
36  Stat,  at  L.  1156,  chap.  231,  Comp.  Stat. 
1913,  §  1214,  governing  writs  of  error  to 
state  courts,  although  such  judgment  does 
not  determine  the  merits  of  the  principal 
suit.  Mt.  Vernon  Wood  berry  Cotton  Duck 
Co.  V.  Alabama  Interstate  Power  Co.  240 
U.  S.  30,  ante,  607,  36  Sup.  Ct.  Rep.  234. 

And  a  judgment  of  a  state  court  ordering  I 
the  delivery  to  the  state  by  a  canal  company 
of  the  waterway  in  its  entirety,  and  all 
appurtenant  property  and  its  improvements, 
including  the  roadways  upon  the  sides, 
which  cumprisc  practically  all  the  property 
sued  for,  such  judgment  involving  and  dis 
posing  of  the  Federal  right  asserted  by  the 
canal  company,  possesses  the  requisite  final- 
ity to  sustain  a  writ  of  error  from  the  Fed- 
eral Supreme  Court,  although  there  is  re- 
served for  further  adjudication  a  small 
Siece^of  ground  as  to  which  there  was  a 
ispute  as  to  whether  it  was  appurtenant 
to  the  canal,  and  although  an  accounting  of 
certain  receipts  and  disbursements  is  or- 
dered. Carondelet  Canal  &  Nav.  Co.  v. 
Xouisi^na,  233  U.  S.  362,  58  L.  ed.  1001,  34 
Sup.  Ct.  Rep.  627. 

A  jud^ent  of  the  highest  court  of  a 
state,  which  reversed  a  judgment  below  dis- 
missing a  petition  because  it  stated  no  cause 
of  action,  and  remanded  the  cause  for  fur- 
'thcr  proceedings,  is  not  final  for  the  purpose 
of  a  writ  of  error  from  the  Federal  Supreme 
Court.  Louisiana  Nav.  Co.  v.  Oyster  Com 
iXniBsion,  supra. 

A  judrnmcnt  of  the  highest  court  of  a 
citnte,  afHrming,  without  directing  a  dis- 
^niasal,  the  judgment  of  the  court  below, 
^^rhich  had  sustained  a  demurrer  to  the 
petition  in  a  civil  suit  upon  the  ground 
'^hat  it  did  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action,  but  had  not  dis- 
1X1  iss^  the  suit,  lacks  the  finality  requisite 
'to  sustain  a  writ  of  error  from  the  Federal 
Supreme  Court.  Missouri  ft  K.  I.  R.  Co.  v. 
Olathe,  222  U.  S.  1S5,  56  L.  ed.  155,  32  Sup. 
Ct.  Rep.  46. 

But  where  the  cause  will  be  determined  by 
the  judgment  which  the  highest  state  court 
directs  the  court  below  to  enter,  there  is  a 
final  judgment.  Hence  a  judgment  of  the 
highest  state  court,  which  reversed  a  judg- 
ment below  in  favor  of  defendants  |n  a  suit 
by  a  railway  company  to  quiet  title  to  a 
strip  of  land  claimed  and  used  by  it  as  a 
right  of  way  under  the  act  of  March  3, 1875, 
•0  li.  ed. 


and  to  which  defendants  asserted  title  imder 
a  patent  to  a  placer  mining  claim,  and  re- 
manded the  cause  with  a  direction  to  *'enter 
a  judgment  awarding  to  the  plaintiff  title 
to  a  right  of  way  over  the  lanas  in  question 
100  feet  wide  on  each  side  of  the  center  of 
the  track,"  is  a  final  judgment  within  the 
meaning  of  the  Judicial  Code,  §  237,  gov* 
erning  writs  of  error  from  the  Federal  Su> 
preme  Court  to  state  courts.  Rio  Grande 
Western  R.  Co.  v.  Stringham,  239  U.  S.  44,. 
ante,  136,  36  Sup.  Ct.  Rep.  5. 

Until  the  judgment  rendered  by  the  state 
trial  court  pursuant -to  the  mandate  from  the 
state  court  of  last  resort,  which,  on  revers* 
ing  a  prior  judgment,  remanded  the  cause 
for  further  proceedings,  had  been  afi&rmed 
by  the  latter  court  upon  a  second  writ  of 
error,  there  was  no  final  judgment  in  that 
court  such  as  might  be  brought  up  to  the 
Federal  Supreme  Court  under  the  Judicial 
Code,  §  237,  for  review.  Coe  v.  Armour  Fer- 
tilizer Works,  237  U.  S.  413,  59  L.  ed.  1027, 
35  Sup.  Ct.  Rep.  625. 

The  judgment  of  the  highest  court  of  a 
state  affirming,  on  a  third  appeal,  a  judg- 
ment of  the  trial  court  entercKi  on  a  verdict 
in  favor  of  plaintiff,  is  the  first  final  judg- 
ment in  the  action  which  is  the  subject  of 
review  in  the  Federal  Supreme  Court,  where 
the  highest  state  court,  on  the  first  appeal, 
reversed  the  order  of  the  lower  court,  grant- 
ing a  petition  for  the  removal  of  the  action 
to  a  Federal  circuit  court,  and  remanded 
the  case  for  trial,  and,  on  the  second  appeal, 
reversed  a  judgment  entered  on  a  directed 
verdict  in  favor  of  defendant,  although  the 
court,  on  such  third  appeal,  regarded  itself 
as  bound  by  its  prior  decision  as  the  law 
of  the  case,  and  declined  again  to  consider 
the  Federal  question.  Chesapeake  &  O.  R. 
Co.  V.  McCabe,  213  U.  S.  207,  53  L.  ed.  765^ 
29  Sup.  Ct.  Rep.  430. 

The  rule  which  excludes  the  right  to  re- 
view questions  arising  in  a  cause  depending 
in  a  state  court  until  a  final  judgment  is 
rendered  by  such  court  involves  as  a  neces- 
sarv  correlative  the  power  and  the  duty 
in  ihe  Federal  Supreme  Court,  when  a  final 
judgment  in  form  in  rendered  and  the  cause 
is  brought  there  for  review,  to  consider  and 
pass  upon  all  the  Federal  controversies  in* 
the  cause,  irrespective  of  how  far  it  may  be 
that  by  the  state  law  such  questions  were 
concluded  during  the  litigation,  and  before 
a  final  judgment  susceptible  of  review  waa 
rendered.  Louisiana  Nav.  Co.  v.  Oyster 
Commission,  226  U.  S.  99,  57  L.  ed.*138,. 
33  Sup.  Ct.  Rep.  78. 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cot.  Tduc, 


gire  a  further  hearing  and  an  opportunity 
to  introduce  eyidenoe,  and  the  refusal  of 
the  supreme  court  of  Michigan  to  give  any 
Buch  opportunity,  was  a  deprivation  of 
property  without  due  process  of  law,  and 
a  denial  pf  the  equal  protection  of  the  laws. 

Washington  ex  ret  Oregon  R.  &  Nav.  Co. 
T.  Fairohild,  224  U.  S.  610,  66  L.  ed.  863, 
82  Sup.  a.  Rep.  636;  RoUer  v.  HoUy,  176 
U.  S.  398,  409,  44  L.  ed.  620,  624,  20  Sup. 
Ct.  Rep.  410;  biterstate  Commerce  Commis- 
sion V.  Louisville  &  N.  R.  Co.  227  U.  S. 
88,  91,  67  Lb  ed.  431,  433,  33  Sup.  Ct. 
Rep.  186;  Coe  t.  Armour  Fertiliser  Works, 
237  U.  S.  413,  69  K  ed.  1027,  36  Sup.  a. 
Rep.  626. 

If  the  proposed  use  is  public,  the  ques- 
tion of  necessity,  in  the  absence  of  any- 
thing in  the  state  Constitution  to  the  con- 
trary, may  be  determined  by  the  legisla- 
ture, or  by  executive  or  administrative 
officers,  or  a  court  by  authority  of  the  legis- 
lature, and  without  any  notice  or  hearing. 

People  ex  rel.  Herrick  v.  Smith,  21  N.  Y. 
698;  Ford  v.  Chicago  &  N.  W.  R.  Co.  14  Wis. 
610,  80  Am.  Dec.  791;  Sholl  v.  German  Coal 
Co.  118  ni.  427,  69  Am.  Rep.  379,  10  N.  E. 
199;  Waterworks  Co.  v.  Burkhart,  41  Ind. 
364;  Cooley,  Const.  Lim.  7th  ed.  777,  778. 

But  it  must  appear  that  the  purpose  is 
public,  and  not  private,  for  taking  prop- 
erty for  a  private  purpose  is  a  deprivation 
of  property  without  due  process  of  law. 

Missouri  P.  R.  Co.  v.  Nebraska,  164  U.  S. 
403,  41  L.  ed.  489,  17  Sup.  Ct.  Rep.  130;  Re 
Tuthill,  163  N.  Y.  138,  49  LJ^A.  781,  79 
Am.  St.  Rep.  674,  67  N.  E.  303;  Fallsburg 
Power  A  Mfg.  Co.  v.  Alexander,  101  Va.  98, 
61  L.ILA.  129,  99  Am.  St.  Rep.  866,  43  S.  E. 
194;  Berrien  Springs  Water  Power  Co.  v. 
Berrien  Circuit  Judge,  133  Mich.  48,  103 
Am.  St.  Rep.  438,  94  N.  W.  379. 

The  indemnity  bond  of  $10,000  filed  by 
the  Fletcher  Paper  Company  by  direction 
of  the  supreme  court  of  Michigan,  as  a 
condition  precedent  to  the  issuing  of  the 
writ  of  mandamus,  does  not  cure  the  error 
of  that  coiurt  in  awarding  the  mandamus. 

Foule  v.  Mann,  63  Iowa,  42,  3  N.  W.  814. 

On  the  answers  of  the  railroad  company 
the  Tubbs  branch  has  always  been,  and,  as 
proposed  to  be  restored,  will  certainly  be, 
private,  and  not  public 

Pipe  Line  Cases  (United  States  r.  Ohio 
Oil  Co.)  234  U.  S.  648,  68  L.  ed.  1469,  34 
Sup.  Ct.  Rep.  966. 

It  is  settled  law  in  Michigan  that  re- 
quiring railroad  companies  to  construct  at 
their  own  expense,  highway  crossings,  farm 
crossings,  or  drainage  culverts,  is  a  taking 
without  compensation,  and  forbidden  by 
the  due  process  of  law  clause. 

Chicago  &  G.  T.  R.  Co.  v.  Chappell,  124 
Mich.  72,  82  N.  W.  800;  People  v.  Detroit, 
804 


|6.  H.  ft  M.  R.  Co.  79  Mich.  471,  7  L.R.A. 

1 717,  44  N.  W.  934;  Chicago  &  G.  T.  R.  06. 

I  V.  Hough,  61  Mich.  607,  28  N.  W.  632;  Peo- 
ple V.  Lake  Shore  &'M.  S.  R.  Co.  62  Ifidi. 
277,  17  N.  W.  841. 

And  this  court  has  held  that  a  serious 
interruption  to  the  common  and  necessary 
use  of  property  is  a  taking  of  it. 

Pumpelly  v.  Green  Bay  &  M.  Canal  Co. 
13  WalL  168,  20  L.  ed.  667. 

Mr.  DaTld  H.  Crowley  argued  the 
cause,  and,  with  Mr.  Grant  Fellows,  At- 
torney General  of  Michigan,  filed  a  brief  for 
defendant  in  error,  the  Michigan  Railroad 
Commission : 

The  order  of  the  Michigan  Railroad  Onn- 
mission  could  not,  even  if  viewed  from  the 
standpoint  of  plaintiff  in  error,  be  consid- 
ered void. 

Cooley,  Const.  Lim.  7th  ed.  pp.  687,  688; 
White  V.  Grow,  110  U.  S.  183,  28  L.  ed. 
113,  4  Sup.  Ct.  Rep.  71;  Lent  v.  Tillson, 
140  U.  S.  316,  36  L.  ed.  419,  11  Sup.  Ct. 
Rep.  826. 

The  necessary  rules  bf  procedure,  vis., 
notice,  hearing,  etc.,  and  the  distinction 
between  those  errors  that  render  a  judg- 
ment void  and  those  resulting  simply  in 
irregular  procedure  have  been  pointed  out 
many  times  by  this  court  in  reviewing 
judgments  of  state  courts.  The  rules  of 
procedure  should  be  construed  even  more 
liberally  when  applied  to  the  Mtehigan 
Railroad  Commission,  whose  proceedings 
are  administrative  or  ministerial,  and  not 
judicial  (Bfichigan  C.  R.  Co.  v.  Michigan  R. 
Commission,  160  Mich.  366,  126  N.  W-  649). 
And,  again,  the  findings  of  such  Commis- 
sion are  not,  under  the  Michigan  statutes, 
conclusive,  but  are  only  prima  fade  until 
modified  by  the  Commission  or  set  aside 
by  the  court. 

Michigan  R.  Commission  v.  Michigan  C. 
R.  Co.  169  Mich.  680,  124  N.  W.  664;  De- 
troit &  M.  R.  Co.  V.  Michigan  R.  Commis* 
sion,  171  Mich.  346,  137  N.  W.  329. 

As  a  general  rule,  mandamus  will  not  lie 
where  another  suit  involving  the  same  sub- 
ject-matter is  pending,  but  this  rule  does 
not  apply  where  the  pending  litigation 
will  be  ineffective,  or  where  irreparable 
loss  or  damage  will  result  from  delay. 

Petaluma  Sav.  Bank  v.  Superior  Ct.  Ill 
Cal.  488,  44  Pac.  177;  Southern  P.  Co.  v. 
Siemens,  —  Or.  — ,  150  Pac.  290;  State  ex 
reL  Oshkosh,  A.  ft  *B.  W.  R.  Co.  v.  Bumell, 
104  Wis.  246,  80  N.  W.  460;  Michigan  R 
Commission  v.  Michigan  C.  R.  Co.  169  Mich. 
680,  124  N.  W.  664. 

Mr.  Grant  Fellows,  Attorney  General  of 
Michigan,  and  Mr.  I.  S.  Canfield  also  filed 
a  separate  brief  for  defendants  in  error: 

No   final   judgment   or   decree   has   been 

S40  U.  S. 


101& 


DETROIT  k  M.  R.  CO.  v.  MICHIGAN  R.  COM. 


566 


mdered  by  the  supreme  court  of  Michi- 
gan. 

Mower  v.  Fletcher,  114  U.  S.  127,  29  L. 
ed.  117,  6  Sup.  Ct.  Rep.  799;  Bostwick  v. 
Brinkerhoff,  106  U.  S.  3,  27  L.  ed.  73,  1  Sup. 
Ct.  Rep.  15;  St.  Clair  County  ▼.  Lovingston, 
18  WaU.  628,  21  L.  ed.  813;  Missouri  & 
K.  I.  R.  Co.  T.  Olathe,  222  U.  S.  185,  56  L. 
ed.  155,  32  Sup.  Ct  Rep.  46;  Miners'  Bank 
▼.  United  States,  5  How.  213, 12  L.  ed.  121; 
McComb  T.  Knox  County,  91  U.  S.  1,  23  L. 
ed.  185;  Great  Western  Teleg.  Co.  t.  Bum- 
ham,  162  U.  S.  339,  40  L.  ed.  991,  16  Sup. 
Ct  Rep.  850;  Louisiana  Net.  Co.  v.  Oyster 
Commission,  226  U.  S.  99,  57  L.  ed.  138,  33 
Sup.  Ct  Rep.  78;  Parcels  ▼.  Johnson,  20 
WaU.  653,  22  L.  ed.  410. 

The  order  here  involved,  and  which  the 
oourt  enforced  by  the  writ  of  mandamus,  is 
administrative  in  its  nature. 

2  Elliott,  Railroads,  2d  ed.  f  675;  Reagan 
T.  Farmers'  Loan  A  T.  Co.  154  U.  S.  362,  38 
L.  ed.  1014,  4  Inters.  Com.  Rep.  560,  14 
Sup.  Ct.  Rep.  1047;  Railroad  Commission 
Cases,  116  U.  S.  307,  29  K  ed.  636,  6  Sup. 
Ct.  Rep.  334,  388,  1191;  Atlantic  Coast 
Line  R.  Co.  v.  North  Carolina  Corp.  Com- 
mission, 206  U.  S.  1,  51  L.  ed.  933,  27  Sup. 
Ct  Rep.  585,  11  Ann.  Cas.  398;  Michigan 
C.  R.  Co.  V.  Michigan  R.  Commission,  160 
Mich.  355,  125  N.  W.  549;  Michigan  R. 
Commission  v.  Michigan  C.  R.  Co.  159  Mich. 
580,  124  N.  W.  564;  Detroit  &  M.  R.  Co.  v. 
Michigan  R.  Commission,  171  Mich.  346, 137 
N.  W.  329. 

A  writ  of  error  will  not  issue  to  the  order 
of  a  state  court  which  is  administrative  or 
ininisterial  in  its  nature. 

Barton  v.  Forsyth,  5  Wall.  190,  18  L.  ed. 
545;  Dredge  v.  Forsyth,  2  Black,  563,  17  L. 
ed.  253;  Smith  v.  Trabue,  9  Pet.  4,  9  L.  ed. 
30;  New  York  Secur.  &  T.  Co.  v.  Illinois 
Transfer  R.  Co.  44  C.  C.  A.  161,  104  Fed. 
710;  Capital  Nat.  Bank  v.  First  Nat.  Bank, 
172  U.  S.  425,  43  L.  ed.  502,  19  Sup.  a. 
Rep.  202;  Hand  v.  Hagood,  131  U.  S. 
CLXXXI,  Appx.  and  26  L.  ed.  301. 

No  Federal  question  has  been  passed  upon 
by  the  supreme  court  of  Michigan. 

Rogers  v.  Clark  Iron  Co.  217  U.  S.  589, 
54  L.  ed.  895,  30*  Sup.  Ct.  Rep.  693;  Santa 
Cruz  County  v.  Santa  Cruz  R.  Co.  Ill  U.  S. 
361,  28  L.  ed.  456,  4  Sup.  Ct.  Rep.  474; 
Southern  R.  Co.  v.  Carson,  104  U.  S.  136, 
48  Ji.  ed.  907,  24  Sup.  Ct.  Rep.  609;  Christ 
Church  V.  Philadelphia  County,  20  How.  26, 

15  L.  ed.  802;  Armstrong  v.  Athens  County, 

16  Pet.  281,  10  L.  ed.  965;  Smith  v.  Hunter, 
7  How.  738-743,  12  L.  ed.  894-896;  Cro- 
well  V.  Randell,  10  Pet.  392,  9  L.  ed.  467; 
MlCinney  v.  Carroll,  12  Pet.  66,  9  L.  ed. 
1002;  Coons  v.  Gallagher,  15  Pet.  18,  10 
L.  ed.  645;  Fulton  v.  M'Affee,  16  Pet.  149, 
10  L.  ed.  018. 

#0  lu  ed. 


Mandamus  lies  to  put  into  effect  the  oi^ 
ders  of  the  Commission,  pending  proceed- 
ings in  equity  to  set  them  aside. 

Michigan  R.  Commission  v.  Michigan  C. 
R.  Co.  159  Mich.  580,  124  N.  W.  564;  Mich- 
igan R.  Commission  v.  Detroit  &  M.  R.  Co. 
178  Mich.  230,  144  N.  W.  696;  Knoxville 
V.  Knoxville  Water  Co.  212  U.  S.  1,  53  L. 
ed.  371,  29  Sup.  Ct  Rep.  148;  26  Cyc 
372;  Atlantic  Coast  Line  R.  Co.  v.  Florida, 
203  U.  S.  256,  51  L.  ed.  174,  27  Sup.  Ct. 
Rep.  lt)8;  Seaboard  Air  Line  R.  Co.  v. 
Fk>rida,  203  U.  S.  261,  51  L.  ed.  175,  27 
Sup.  Ct.  Rep.  109. 

The  relator  in  the  court  below  made  out 
such  a  clear  legal  right  that  it  was  entitled 
to  have  its  order  enforced  by  mandamus  for 
the  benefit  of  the  complainant  before  the 
Commission,  defendant  in  error  here,  the 
Fletcher  Paper  Company. 

State  ex  rel.  Wisconsin  Teleph.  Co.  t. 
JanesvUle  R.  Co.  87  Wis.  72,  22  L.R.A.  759, 
41  Am.  St.  Rep.  23,  57  N.  W.  970 ;  Marbury 
V.  Madison,  1  Cranch,  137,  2  L.  ed.  60; 
Union  P.  R.  Co.  v.  Hall,  91  U.  S.  343,  23 
L.  ed.  428;  People  ex  rel.  Hunt  v.  Chicago 
&  A.  R.  Co.  130  ni.  175,  22  N.  E.  857;  2 
Elliott,  Raihroads,  %  698. 

Mr.  Justice  Van  Devanter  delivered  the 
opinion  of  the  court: 

This  was  a  petition  to  the  supreme  court 
of  Michigan  by  the  Railroad  Commission  of 
that  state,  for  a  writ  of  mandamus  to  en- 
force obedience  to  an  order  of  the  Commis- 
sion, directing  the  Detroit  &  Mackinac 
Railway  Company  to  re-lay  i  mile  of  rails 
removed  by  it  from  a  5-mile  logging  spur, 
called  Tubbs  branch,  and  to  resume  service 
thereon.  The  railroad  company  answered, 
and,  after  a  hearing,  the  court  granted  the 
writ,  subject  to  a  condition  presently  to  be 
stated.     178  Mich.  230,  144  N.  W.  696. 

The  Commission's  action  was  invoked  by 
a  complaint  presented  by  the  Fletcher  Paper 
Company,  of  which  the  railway  company 
had  due  notice.  Before  the  Commission  the 
railway  company  insisted  that  the  logging 
spur  was  not  a  part  of  its  railroad  system, 
and  that  its  use  had  been  only  that  of  a 
private  convenience;  but  the  Commission 
concluded  from  the  pleadings  and  evidence 
that  the  fact  was  otherwise,  and  made  the 
order  with  the  purpose  of  correcting  what 
it  deemed  an  unreasonable  and  unjust  dis- 
crimination and  an  inadequate  service  with- 
in the  meaning  of  the  local  statute  (3 
Howell's  Anno.  Stat.  2d  ed.  §§  6526,  6537, 
6545).  Thereupon  the  railway  company 
filed  a  bill  in  equity  in  the  circuit  court  of 
Wayne  county,  praying  that  the  order  be 
vacated,  and  asking  that  its  enforcement 
be  temporarily  and  permanently  enjoined. 
In  the  bill  the  railway  company  Tev^^\ft&\\.% 


067-560 


SUPKEMB  OOUET  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


InsiBtence  [567]  that  the  logging  spur  was 
npt  a  part  of  its  railroad  BTstem,  but  only  a 
private  convenience,  and  charged  that  an 
adequate  hearing  was  denied  by  the  Com- 
mission in  that  the  issues  were  determined 
upon  the  evidence  presented  by  the  paper 
company,  and  in  contravention  of  an  under- 
standing, assented  to  by  the  Commission, 
that  if  an  objection  of  the  railway  company 
in  the  nature  of  a  plea  of  res  judicata 
should  be  overruled,  as  it  afterward  was, 
the  company  would  be  afforded  a  further 
opportunity  to  present  evidence  in  opposi- 
tion to  that  of  the  paper  company.  The 
bill  invoked  the  due  process  of  law  clause 
of  the  14th  Amendment.  Apparently  the 
prayer  for  a  temporary  injunction  was  not 
insisted  upon. 

It  was  during  the  pendency  of  that  suit 
that  the  mandamus  proceeding  was  begun 
and  carried  to  judgment  in  the  SMprama 
court.  In  this  proceeding  the  railway  com- 
pany again  asserted  that  the  logging  spur 
was  only  a  private  convenience,  and  not  a 
part  of  the  railroad  system  used  by  it  as 
a  common  carrier,  and  that  the  Commis- 
sion had  denied  it  an  adequate  opportunity 
to  be  heard  upon  that  question,  and  further 
insisted  that  to  require  it  to  give  effect  to 
the  Commission's  order  in  advance  of  a 
hearing  and  decision  uppn  that  question  in 
the  suit  in  -equity  would  deprive  it  of  the 
due  process  of  law  guaranteed  by  the  14th 
Amendment. 

In  the  course  of  its  opinion*  the  supreme 
court  said,  pp.  243-246: 

"We  are  not  called  upon  to  consider  and 
determine  the  merits  of  the  controversy  be- 
tween the  Fletcher  Paper  Company  and  re- 
•pendent  railway  company  upon  the  order 
of  August  3,  1011.  Such  questions  are  in 
volved  in  the  case  now  pending  before  the 
circuit  court  for  the  county  of  Wayne,  in 
chancery,  wherein  the  respondent  railway 
company  seeks  to  review,  annul,  and  set 
aside  said  order.  The  sole  question  before 
this  court  in  this  proceeding  is  whether  the 
order  of  the  Railroad  Commission  shall 
{568]  take  effect  and  become  operative 
pending  the  hearing  and  determinatibn  of 
that  chancery  cause.    .    .    . 

"Relative  to  an  order  made  by  this  Com- 
mission, this  court  has  said:  '•  .  .  Its 
orders  stand  until  modified  or  set  aside  by 
it  or  by  the  courts.  .  .  .  Presumptive- 
ly, the  findings  and  orders  of  the  Commis- 
sion are  right.  If  attacked,  the  complain- 
ant has  the  burden  of  showing  "by  clear 
and  satisfactory  evidence  that  the  order  of 
the  Commission  complained  of  is  unlawful 
or  unreasonable,  as  the  case  may  be." '  De- 
troit &  M.  R.  Co.  T.  Michigan  R.  Commis- 
sion, 171  Mich.  335,  846,  137  N.  W.  829. 


606 


"The  petitioner  in  the  instant  case  be- 
fore the  Railroad  Commission  offered,  and 
upon  this  hearing  before  this  court  keeps 
such  offer  good«  to  indunmify  respondent  for 
all  costs  and  expenses  incurred  in  re-laying 
the  track  taken  up  by  it,  with  interest; 
and  to  pay  all  rates  that  may  be  fixed  or 
charged  by  the  railway  company  and  ap- 
proved by  the  Commission,  in  case  this  or- 
der is  vacated  and  set  aside  by  the  Wayne 
circuit  court  in  chancery,  or  by  this  court, 
if  an  appeal  is  taken.  This  indemnity 
would  save  respondent  harmless  from  any 
possible  loss  in  complying  with  the  order, 
and  save  petitioner  from  claimed  irrepara- 
ble damage  to  21,000,000  fuet  of  forest 
products  during  the  probable  term  of  years 
occupied  in  this  litigation. 

"It  has  been  held  by  tliis  court  that  an 
order  of  the  Railroad  Commission  is  en- 
forceable by  mandamus,  although  a  proceed- 
ing in  equity  to  review  it  is  pending.  Michi- 
gan R.  Commission  v.  Michigan  C.  R.  C6. 
159  Mich.  580,  124  N.  W.  504. 

"This  order  is  prima  facie  not  unreason- 
able. There  is  no  question  but  that  the 
legislative  intent,  clearly  expressed  in  this 
statute,  was  that  the  orders  of  the  Commis- 
sion should  be  and  continue  in  force  during 
all  subsequent  proceedings  until  modified 
or  set  aside  by  the  Commission  or  by  the 
courts. 

"The  statute  provides  a  remedy  by  man- 
damus to  enforce  [560]  the  orders  of  the 
Commission,  and  this  couit  has .  granted 
such  writs.  Upon  the  facts  presented,  the 
writ  should  be  granted  in  this  case. 

"Upon  furnishing  bond  by  the  petitioner 
before  the  Railroad  Commission,  th6  Fletch- 
er Paper  Company,  in  the  penal  sum  of 
$10,000  to  indemnify  respondent  in  manner 
and  form  as  herein  stated,  with  two  sure- 
ties, to  be  agreed  upon  between  the  parties, 
or  approved  by  the  clerk  of  this  court,  a 
writ  of  mandamus  will  issue  as  prayed." 

And  in  the  course  of  a  separate  opinion 
one  of  the  justices  said,  p.  248: 

"So  long  as  the  respondent  was  operating 
the  spur,  accepting  thereon  and  teansport- 
ing  over  it  freight  for  those  who  offered  it, 
and  so  long  as  it  published  tariffs  affect- 
ing such  service,  it  was  undoubtedly,  as  to 
such  operations,  within  the  scope  of  the  act 
in  question,  and  this  we  held  in  Detroit  ft 
M.  R.  Co.  V.  Michigan  R.  Commission,  171 
Mich.  335,  137  N.  W.  329.  But  whether 
the  Michigan  Railroad  Commission  has 
power  under  the  statute  to  require  respond- 
ent to  continue  to  operate  such  a  spur,  or 
branch,  against  its  will,  and  in  face  of  its 
efforts  to  abai^don  it,  is  quite  a  different 
question.  It  is  a  question  which  we  assume 
is  presented  in  the  pending  chancery  pro- 
ceeding to  set  aside  the   order   which   in 

S40  U.  8. 


1915. 


DETROIT  ft  M.  B.  CX).  y.  MICHIOAN  R.  OOM. 


669-67S 


thii  proceeding  is  sought  to  be  enforced. 
It  need  not  be  answered  now." 

The  local  statute,  3  Howell's  Anno.  Stat. 
2d  ed.,  provides:      (§  6545)   Orders  of  the 
Commission   shall  talce  effect  and  become 
operative    twenty    days   after    service;     (9 
6547)   the  Commission  may,  upon  applica- 
tion, rescind  or  alter  any  order;    (§  6648) 
all  rc<^ulations,  practices,  and  services  pre- 
scribed by  the  Commission  shall  be  in  force 
and  be  prima  facie  lawful  and  reasonable 
until    finally    held    otherwise    in    a    suit 
brought  for  the  purpose  under  §  6549,  or 
until  rescinded  or  altered  by  the  Commis- 
sion under  §  6547;  (§  6549)  a  carrier  may, 
within  thirty  days  after  notice  of  an  order, 
commence  a  suit  in  equity  to  vacate  [570] 
H,  the  burden  being  upon  the  carrier  to 
show  that  the  order  is  unlawful  or  unrea- 
sonable.    In  such  a  suit  original  evidence 
may  be  introduced  in  addition  to  the  tran- 
script of  that  presented  before  the  Com- 
mission; and  if  evidence  be  introduced  by 
the  carrier  which  is  different  from  or  in 
mddition  to  that  presented  before  the  Com- 
mission, the  court,  unless  the  parties  stipu- 
late to  the  contrary,  shall  transmit  a  copy 
thereof  to  the  Commission  and  stay  further 
proceedings  for  the  time  being.    The  Com- 
mission shall  consider  the  evidence  trans- 
mitted, and  may  alter  or  rescind  its  order, 
«.nd  shall  report  its  action  to  the  court.    If 
the  Commission  rescind  its  order,  the  suit 
shall  be  dismissed;  if  it  alter  the  order,  the 
same   in   its  changed  form  shall  take  the 
place  of  the  original,  and  judgment  shall  be 
rendered  thereon  as  though  the  last  action 
of  the  Commission  had  been  taken  at  first; 
(§  6570)  in  addition  to  all  other  remedies, 
the  Commission,  and  likewise  any  party  in 
interest,   may  compel   compliance  with   an 
order  of  the  Commission  by  a  proceeding  in 
mandamus,  injunction,  or  other  appropriate 
civil  remedy. 

It  will  be  perceived  that  the  supreme 
court,  applying  the  statute,  held  that  the 
"sole  question"  for  decision  was  whether 
the  Commission's  order  should  be  given  ef- 
fect pending  the  determination  of  the 
equity  suit;  and  then,  coming  to  dispose 
of  that  question,  held  that  due  regard  for 
the  provisions  of  the  statute,  especially 
IS  6545,  6548,  and  6549,  and  for  the 
relative  consequences  of  enforcing  or  re- 
fusing to  enforce  the  order,  required  that 
it  be  enforced  by  mandamus,  if  a  suitable 
bond  was  given  to  indemnify  the  railway 
company  for  any  resulting  loss  in  the  event 
the  order  ultimately  should  be  vacated  in 
the  equity  suit. 

Our  jurisdiction  is  called  in  question 
upon  the  ground  that  the  judgment  is  not 
final  in  the  sense  of  §  237,  Judicial  Code 
[36  Stat,  at  L.  1156,  chap.  231,  Comp.  Stat. 
#0  li.  ed. 


1913,  §  1214],  upon  which  our  power  to 
review  depends,  because  the  judgment  does 
not  determine  the  merits  and  end  the 
[571]  litigation.  But,  as  this  court  has 
said,  ''all  judgments  and  decrees  which  de- 
termine the  particular  cause"  are  final 
in  the  sense  of  the  statute.  Weston 
▼.  Charleston,  2  Pet.  449,  463-^65,  7  L. 
ed.  481,  486,  487;  Central  Transp.  Co.  t. 
Pullman's  Car  Co.  139  U.  S.  24,  40,  35  L. 
ed.  55,  61,  11  Sup.  Ct.  Rep.  478;  Mi. 
Vemon-Woodberry  Ootton  Duck  Co.  t. 
Alabama  Interstate  Power  Co.  240  U.  8. 
30,  ante,  507,  36  Sup.  Ct.  Rep.  234. 
This  view  has  prevailed  through  a  cen- 
tury of  practice  in  reviewing  judgments 
and  decrees  dismissing  causes  for  want  of 
jurisdiction  or  for  other  reasons  not  deci- 
sive of  the  merits.  And  it  is  settled  that 
a  proceeding  in  mandamus  is  an  independ- 
ent adversary  suit,  and  a  judgment  award- 
ing or  refusing  the  writ  is  a  final  judgment 
within  the  meaning  of  the  statute.  Daviea 
V.  Corbin,  112  U.  S.  36,  40,  28  L.  ed.  627, 
629,  5  Sup.  Ct.  Rep.  4;  McPherson  v.  Black- 
er, 146  U.  S.  1,  24,  36  L.  ed.  869,  873,  18 
Sup.  Ct.  Rep.  3;  American  Exp.  Co.  v.  Mich- 
igan (American  Exp.  Co.  v.  Maynard)  177 
U.  S.  404,  406,  44  Lb  ed.  823,  824,  20  Sup. 
Ct.  Rep.  695. 

Under  the  local  statutes,  as  interpreted 
by  the  supreme  court  of  the  state,  whether 
the  logging  spur  was  merely  a  private  con- 
venience or  was  so  used  and  operated  by 
the  railway  company  that  the  latter  was 
not  free  to  discontinue  service  thereon,  in 
the  circumstances  existing  when  the  rails 
were  removed,  was  primarily  a  question  for 
the  Commission  and  secondarily  for  the 
Wayne  circuit  court,  wherein  the  Commis- 
sion's order  was  sought  to  be  vacated.  By 
the  order  the  Commission  resolved  this 
question  against  the  railway  company.  The 
order  was  valid  upon  its  face  and  recited 
that  it  was  made  after  a  hearing  and  due 
consideration  of  the  proofs  and  briefs  of 
the  parties.  Whether  the  hearing  was  ade- 
quate and  whether  the  facts  relating  to  the 
logging  spur  were  such  as  to  sustain  the 
order  were  matters  which  were  in  issue  in 
the  suit  in  the  Wayne  circuit  court,  where 
the  railway  company  was  at  liberty  to  pro- 
duce any  evidence  legitimately  bearing  upon 
the  propriety  of  the  order.  It  was  in  this 
situation  that  the  supreme  court,  having  re- 
gard to  the  statutory  requirement  that  the 
order  be  given  effect  and  treated  as  prima 
facie  lawful  and  reasonable  until  adjudged 
otherwise  in  [572]  the  suit  brought  to 
vacate  it,  and  also  having  regard  to  the 
comparative  consequences  of  enforcing  or 
refusing  to  enforce  it  while  that  suit  was 
undetermined,  held  that  it  ought  to  be  en- 
forced by  mandamus,   if  a  suitable  bond 

807 


672 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tknc, 


was  given  to  indemnify  the  railway  com- 
pany should  the  order  ultimately  be  va- 
cated. In  this  we  perceive  no  deprivation 
of  due  process.  The  granting  of  an  order 
or  writ  to  maintain  or  restore  the  status 
quo  pending  the  outcome  of  existing  litiga- 
tion, which  really  is  what  was  done  here, 
has  been  practised  by  the  courts  of  the 
country  since  before  the  Constitution  was 
adopted;  and  the  claim  that  relief  of  this 
nature  cannot  be  granted,  even  upon  con- 
dition that  ample  security  be  given  to  make 
good  any  loss  that  may  be  sustained  there- 
by, without  encroaching  upon  the  due 
process  of  law  secured  by  the  Constitution, 
is  manifestly  without  merit. 
Judgment  affirmed. 

Mr.  Justice  McReynolds  is  of  opinion 
that  the  Judgment  is  not  final  within  the 
meaning  of  §  237,  Judicial  Code  [36  Stat 
at  L.  1166,  chap.  231,  Comp.  Stat.  1913, 
S  1214],  and  therefore  that  the  writ  of  er- 
ror should  be  dismissed. 


JENNIE  A.  WnXINK,  Executrix,  etc., 

Appt., 

V. 

UNITED  STATES. 
(See  S.  C.  Reporter's  ed.  572-681.) 

Bminent  domain  —  what  Is  a  taking  — 
location  of  harbor  line. 

L  Something  more  than  the  location 
of  a  harbor  line  across  the  land  of  a  ri- 
parian owner  on  a  navigable  and  tidal 
stoeam  Is  essential  in  order  to  amount  to  a 
tiJcing  of  his  property  and  its  appropria- 
tion to  a  public  use. 

[For  other  cases,  see  Bmlnent  Domain,  T.,  In 
Digest  Sap.  Ct  1908.] 

Bmlnent  domain  —  what  Is  a  taking  — 
preventing  renewal  of  wharf  and  pil- 
ing. 

2.  The  property  of  a  riparian  owner  on 
a  navigable  and  tidal  stream  was  not  taken 
so  as  to  entitle  him  to  compensation  there- 
for because  he  was  prevented  l^  the  engi- 
neer officer  in  charge  of  harbor  improve- 
ments there,  and  by  the  United  States 
attorney  for  the  district,  acting  under  the 
authority  of  the  river  and  harbor  act  of 
September  19,  1890  (26  Stat,  at  L.  455, 
chap.  907,  Comp.  Stat.  1913,  %  9923),  §§  11, 
12,  from  renewing  the  sheet  pilins  which 
protected  his  marme  railway,  or  rebuilding 

Nan. — ^As  to  what  constitutes  a  taking 
of  propertnr  by  eminent  domain — see  notes 
to  Memphis  &  C.  R.  Co.  v.  Birmingham,  S. 
ft  T.  R.  R.  Co.  18  LJI.A.  166,  and  Sweet 
V.  Rechel,  40  L.  ed.  U.  S.  188. 

On  distinction  between  taking  or  dam- 
aging properly  and  consequential  injuries — 
see  note  to  Gordon  v.  Ellenville  «  K.  R. 
Co.  47  IJELA.(NJ3.)  462. 
808 


his  wharf,  where  both  piling  and  wharf  were 

not  only  below  the  mean  high-water  line, 

but  were  within  the  harbor  area  as  defined 

conformably  to  the  act  of  August  11,  1888 

(25  SUt.  at  L«  425,  chap.  860),  §  12,  by 

the  Secretary  of  War. 

[For  other  cases,  see  Eminent  Domain,  V.,  In 
Digest  Sup.  Ct  1008.1 

[No.  180.] 

Argued  January  21,  1916.     Decided  April 

3,  1916. 

APPEAL  from  the  Court  of  Claims  to  re- 
view a  judgment  which,  on  a  second 
trial,  denied  a  recovery  from  the  United 
States  by  a  riparian  owner  for  an  alleged 
taking  of  his  property  in  the  improvement 
of  a  harbor.    Affirmed. 

See  same  case  below,  first  trial,  88  Ct.  CI. 
693;  second  trM,  49  Ct  CI.  701. 
The  facts  are  stated  in  the  opinion. 

Mr.  George  A.  King,  argued  the  cause, 
and,  with  Mr.  William  B.  King,  filed  a  brief 
for  appellant: 

There  could  hardly  be  a  clearer  case  of 
the  taking  of  private  property  for  public 
use. 

Pumpelly  v.  Green  Bay  &  M.  Canal  Co. 
13  WalL  166,  20  L.  ed.  557;  United  States 
V.  Great  F^ili  Mfg.  Co.  112  U.  S.  645,  28 
L.  ed.  646,  5  Sup.  Ct.  Rep.  306;  United 
States  r.  Alexander,  148  U.  S.  186,  37  L. 
ed.  415, 13  Sup.  a.  Rep.  529;  United  States 
V.  Lynah,  188  U.  S.  445,  465,  466,  47  L.  ed. 
539,  546,  547,  23  Sup.  Ct  Rep.  349;  United 
States  V.  Welch,  217  U.  S.  333,  338,  339, 
54  L.  ed.  787,  789,  790,  28  UR.A.(N.S.) 
385,  30  Sup.  Ct.  Rep.  527,  19  Ann. 
Cas.  680;  United  States  v.  Grizzard,  219 
U.  S.  180,  184,  185,  55  L.  ed.  165, 
166,  167  81  LJIJ^.(N.S.)  1135  31  Sup. 
Ct.  Rep.  162;  Richards  v.  Washington  Ter- 
minal Co.  233  U.  S.  546,  58  L.  ed.  1P88, 
LJLAaOlSA,  887,  34  Sup.  Ct  Rep.  .  654 ; 
Greenleaf-Johnson  Lumber  Co.  v.  Garrison, 
237  U.  S.  251,  59  L.  ed.  939,  35  Sup.  Ct.  Rep. 
551. 

There  is  no  foundation  for  the  view  that 
the  acts  of  the  officers  of  the  United  States 
stopped  short  of  a  taking  of  the  claimant's 
property.  Everything  was  done  under  full 
sanction  of  the  Secretary  of  War.  He  in 
turn  acted  under  the  authority  of  an  act  of 
Congress.  Surely,  the  claimant  was  not 
obliged  to  submit  to  the  indignity  of  arrest 
and  prosecution,  in  order  to  test  his  rights. 
On  the  contrary,  he  acted  as  a  good  citizen, 
in  conforming  to  the  desires  of  the  officers 
of  the  government,  who  were  carrying  out 
the  directions  of  the  Secretary  of  War,  and 
in  suffering  the  damage  inflicted  upon  him, 
relying  upon  the  oourts  for  redress  in 
awarding  him  the  "just  compensation"  aa- 

S40  V.  8. 


1115. 


WILUNE  V.  UNITED  STATES. 


877,  678 


tared   bj  tb«  OonstUutioti   for  tb«   Uking  I 
of  hiB  propertr. 

Pearaall  v.  Ekton  County,  74  Mich.  659, 
4  UB-A.  193,  42  N.  W.  77 ;  JsneHville  v.  | 
Cvpenter,  77  Wu.  301,  8  L.B.A.  SOS,  20 
Am.  St.  Rep.  123,  48  N.  W.  128;  Forster 
T.  Scott,  136  N.  T.-677,  IB  L.RA.  543,  32 
N.  E.  976;  St.  Louis  v.  Hill,  116  Mo.  527, 
634,  21  L.HA..228,  22  S.  W.  881. 

AssistRnt  Attorney  Qeneral  TIiompM>ii 
argued  the  Ckue  and  flled  a  brief  for  ap- 
pellee: 

CoDgma  acted  vitbin  its  constitutional 
powers  m  authorising  the  Secretary  of  War 
to  establtsli  the  harbor  lines  in  the  Savan- 
nah river. 

Qreenleaf-Jofa&eon  Lumber  Co.  v.  Garri- 
son, 237  U.  S.  261-258,  50  L.  ed.  939-943, 
36  Sup.  Ct.  Rep.  661;  Union  Bridge  Co.  v. 
United  SUtes,  204  U.  S.  364,  51  L.  ed.  623, 
27  Sup.  Ct  Rep.  367;  Scranton  ».  Wheeler, 
170  U.  S.  141,  162,  45  L.  ed.  126,  137,  21 
Sup.  Ct.  Rep.  48;  United  States  t.  Chand- 
ler Dunbar  Water  Co.  229  U.  S-  64,  57  L. 
ed.  1076,  S3  Sup.  Ct.  Rep.  667;  Mononga- 
hela  Bridge  Co.  v.  UniUd  States,  216  U.  S. 
177, 194,  51  L.  ed.  436,  442,  30  Sup.  Ct.  Rep. 
366;  Philadelphia  Co.  v.  Stimson,  223  U.  S. 
«05,  638,  66  L.  ed.  570,  664,  32  Sup.  Ct.  Rep. 
340. 

The  premisea  directly  affected  ww«  vith- 
in  hi^  water  and  harbor  lines  of  a  navi- 
gable trtream,  and  therefore  the  6th  Amend- 
ment cannot  be  invoked. 

Union  Bridge  Co.  t.  United  SUtee,  204 
XT.  S.  364,  61  L..  ed.  623,  27  Sup.  Ct.  Rep. 
367;  United  States  v.  Chandler- Dunbai 
Water  Power  Co.  229  U.  8.  64,  67  L.  ed. 
1076,  33  Sup.  Ct.  Rep.  667. 

The  damagea  complained  at  were  not  tbc 
result  of  direct  invasion  by  the  government, 
but  the  incidental  consequence  of  •  lawful 
exerdee  of  governmental  power. 

ProBser  v.  Northern  P.  R.  Co.  162  U.  S, 
69,  38  L.  ed.  352,  14  Sup.  Ct.  Rep.  628. 

Appellant's  contention  being  predicateii 
upon  tortious  acts  of  government  officials 
the  court  of  claims  was  without  jurisdic- 

lAngford  T.  United  States,  101  U.  S.  341- 
3«e.  26  L.  ed.  1010-1012)  Bigby  v.  Unitec 
SUtes,  188  U.  8.  400,  410,  47  L.  ed.  619,  626 
23  Sup.  Ct.  Rep.  468;  Hill  t.  United  States 
149  U.  8.  603,  699,  37  L.  ed.  862,  864,  11 
6up.  Ct.  Rep.  lOlI. 

Hr.  Justice  Tan  Deranter  delivered  thi 
opinion  of  the  court: 

Henry  P.  Williuk  med  to  recover  es  npor 
an  implied  contract  for  an  alleged  taking 
*f  his  property  in  the  improvement  of  thi 
harbor  in  the  Savannah  river  at  Savannah 
Georgia.  A  recovery  was  denied  (38  Ct. 
«0  Ih  Cd. 


a.   693;   49   Ct   CI.  701),   and  the  claim* 
ant's  executrix  prosecutes  this  appeal. 

The  material  facts  disclosed  by  the  lad- 
ings are  these:  At  Savannah  the  river  is 
lavlgable  and  within  the  ebb  end  flow  of 
the  tide.  Opposite  the  city  is  Hutchinson's 
island,  a  strip  of  which  on  the  side  towards 
the  city  was  owned  by  the  clalmanL  He 
there  eondaeted  a  plant  for  repairing  vea- 
mIs.  Among  his  facilities  used  in  the  busi- 
nesa  were  a  marine  railway  and  a  wharf. 
The  former  extended  into  the  river  and  was 
protected  by  sheet  piling  "where  in  the 
water."  A  substantial  portion  of  it  lay 
below  the  mean  high-water  line,  and  the 
wharf  seems  also  to  have  been  below  that 
line,  although  its  location  is  not  precisely 
stated.  In  the  conduct  of  the  claimant's 
business  the  vessels  subjected  to  repair  were 
drawn  out  of  the  river  and  lowered  into  it 
by  means  of  the  railway,  and  to  prevent 
Its  lower  end,  "which  was  under  water  at 
bigh  tide,"  from  becoming  seriously  ob- 
structed by  deposits  of  mud  the  piling  was 
driven  on  both  sides.  The  piling  was  ef- 
fectual for  the  purpose,  but  decayed  in  tlnw 
and  had  to  be  replaced. 

Prior  to  1887  many  improvements  had 
been  made  in  the  harbor,  and  In  that  year 
a  plan  for  further  and  extensive  improve- 
ments was  submitted  to  Congress,  but  was 
not  approved.  Among  other  changes  this 
plan  contemplated  [S78]  a  widening  of  the 
river  by  cutting  away  a  portion  of  Hutch- 
inson's island,  including  that  whereon  the 
claimant's  facilities  were  situate.  On  May 
4,  1889,  the  harbor  line,  which  theretofore 
had  not  reached  the  island  or  the  claimant's 
facilities,  was  re-established  by  the  Secre- 
tary of  War,  under  J  12  of  the  act  of  Au- 
gust 11,  1688,  chap.  960,  25  SUt.  at  L.  400, 
426,^  such  manner  that  a  part  of  the  claim- 
ant's land  and  all  of  his  facilities  were 
brought  within  the  harbor  area.  In  I8(M> 
another  extended  project,  retaining  the 
earlier  propoaal  to  widen  the  river  by  cut- 
ting away  a  portion  of  the  island,  was  sub- 
mitted to  Congress  and  was  approved.  The 
estimated  cost  of  this  project  was  $3,500,- 
000,  which  included  $49,000  for  "possible 
land  damages"  to  the  island.  A  part  of 
the  larger  sum  was  appropriated  each  year 
until  the  appropriations  equaled  the  full 
estimate,  which  woe  in  1696.  The  appro- 
priation of  July  IS,  1892,  diap.  168,  27 
Stat,  at  L.  88,  92,  was  accompanied  by  a 
provision  that  "contracts  may  be  entered 
into  by  the  Secretary  of  War  for  such  ma- 
terials and  work  as  may  be  necessary  to 
complete  the  present  project  of  Improve- 
ment, to  be  paid  for  as  appropriaflons  may 
from  time  to  time  be  msjle  by  law,  not  to 
exceed  in  the  oggr^ate"  so  much  of  the 
estimate  as  remained  unappropriated.  A 
80* 


578-681 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebic, 


contract  was  then  made  for  cutting  away 
a  portion  of  the  island,  including  that 
whereon  the  claimant's  facilities  were  situ- 
ate, but  this  work  never  was  done  or  un- 
dertaken, and  the  appropriations  were 
otherwise  exhausted  and  the  project  treated 
as  completed. 

In  the  summer  of  1892  the  condition  of 
the  claimant's  wharf  and  piling  became  such 
that  it  was  necessary  to  rebuild  the  one 
and  to  renew  the  other.  While  he  was  so 
engaged  the  engineer  officer  in  charge  of 
the  harbor  improvements  requested  him  to 
desist  and  to  remove  all  of  his  facilities 
that  were  within  the  harbor  area  as  de- 
fined by  the  Secretary  of  War  in  1889.  The 
request  was  followed  by  a  letter  from  the 
United  States  attorney  for  [570]  that  dis- 
trict, notifying  the  claimant  that  in  driving 
the  piling  he  was  obstructing  navigation 
contrary  to  the  act  of  September  19,  1890, 
chap.  907,  26  Stat,  at  L.  426,  454,  455,  and 
that  unless  he  desisted  and  "all  piling  out- 
side of  the  bulkhead  line''  was  removed,  he 
would  be  prosecuted.  Because  of  this  re- 
quest and  notice  he  ceased  work  upon  the 
piling  and  wharf,  but  did  not  remove  any  of 
his  facilities  or  surrender  them  or  his  land 
to  the  United  States  or  any  of  its  officers. 
On  the  contrary,  he  continued  to  operate  his 
plant  and  use  his  marine  railway  and  other 
facilities  as  best  he  could.  Theretofore  he 
was  able  to  haul  up  on  the  railway  and 
repair  vessels  of  considerable  draft,  and 
the  chief  profit  in  his  business  came  from 
that  work;  but  thereafter,  the  renewal  of 
the  piling  being  prevented,  deposits  of  mud 
filled  up  the  entrance  to  the ,  railway  to 
such  an  extent  that  he  was  obliged  to  con- 
fine his  work  to  smaller  vessels.  Even  then 
it  was  necessary  to  be  almost  constantly 
dredging  the  entrance.  This  condition  con- 
tinued until  December,  1897,  when  the 
Secretary  of  War  re-established  the  harbor 
line  as  it  was  prior  to  May  4,  1889.  The 
expense  incurred  by  the  claimant  in  dredg- 
ing was  $7,607,  and  the  loss  consequent 
upon  his  inability  to  handle  the  larger  ves- 
sels was  $12,500. 

Upon  these  facts,  as  before  indicated,  the 
«ourt  held  that  he  was  not  entitled  to  re- 
cover. 

We  reach  the  same  conclusion,  and  for 
the  following  reasons: 

There  was  no  actual  taking  of  any  of  the 
claimant's  property,  nor  any  invasion  or 
occupation  of  any  of  his  land.  As  respects 
his  upland,  he  was  not  in  any  wise  excluded 
from  its  use,  nor  was  his  possession  dis- 
turbed. Something  more  than  the  location 
of  a  harbor  line  across  the  land  was  re- 
quired to  take  it  from  him  and  appropriate 
it  to  public  use.  Yesler  v.  Washington  Har- 
bor Line,  146  U.  S.  646,  656,  86  L.  ed.  1110, 


1122,  18  Sup.  Ct  Rep.  100;  Prosser  t. 
Northern  P.  R.  Co.  152  U.  S.  59,  65,  38  L. 
ed.  352,  356,  14  Sup.  Ct  Rep.  528;  Phila- 
delphia Co.  V.  Stimson,  223  U.  S.  605,  623, 
56  L.  ed.  570,'  578,  32  Sup.  Ct.  Rep.  340. 
[580]  No  taking  resulted  from  the  request 
that  he  remove  his  facilities,  for  it  was  nei- 
ther acceded  to  nor  enforced.  And  the  con- 
tract for  cutting  away  a  part  of  the  land 
was  also  without  effect,  because  there  was 
no  attempt  at  performance.  Thus,  at  best, 
the  asserted  taking  rested  upon  the  acts  of 
the  engineer  officer  and  the  district  attorney 
in  preventing  the  claimant  from  renewing 
his  piling  and  rebuilding  his  wharf?  But  in 
this  no  right  of  his  was  infringed.  The 
river  being  navigable  and  tidal,  whatever 
rights  he  possessed  in  the  land  below  the 
mean  high-water  line  were  subordinate  to 
the  public  right  of  navigation  and  to  the 
power  of  Congress  to  employ  all  appropriate 
means  to  keep  the  river  open  and  its  navi- 
gation unobstructed.  Gibson  v.  United 
SUtes,  166  U.  S.  269,  271,  41  L.  ed.  99G, 
998,  17  Sup.  Ct.  Rep.  578;  Scranton  v. 
Wheeler,  179  U.  S.  141,  163,  45  L.  ed.  126, 
137,  21  Sup.  Ct.  Rep.  48;  Philadelphia  Co. 
V.  Stimson,  223  U.  S.  605,  634,  638,  56  L. 
ed.  570,  582,  584,  32  Sup.  Ct.  Rep.  340; 
United  States  v.  Chandler-Dunbar  Water 
Power  Co.  229  U.  S.  53,  62,  57  L.  ed.  1063, 
1075, 33  Sup.  Ct.  Rep.  667;  Lewis  Blue  Point 
Oyster  Cultivation  Co.  v.  Briggs,  229  U.  S. 
82,  88,  57  L.  ed.  1083,  1085,  33  Sup.  Ct.  Rep. 
679,  Ann.  Cas.  1915A,  232;  Greenleaf  John- 
son Lumber  Co.  ▼.  Garrison,  237  U.  S.  251, 
263,  59  L.  ed.  939, 945,  35  Sup.  Ct.  Rep.  651. 
The  piling  and  wharf  were  below  the  mean 
high-water  line,  and  so,  if  navigation  was 
likely  to  be  injuriously  affected  by  their 
presence,  Congress  could  prevent  their  re- 
newal without  entitling  him  to  compensa- 
tion therefor.  See  cases  supra.  By  the 
legislation  in  force  at  the  time.  Congress 
not  only  authorized  the  Secretary  of  War 
to  establish  the  harbor  lines,  but  made  it 
unlawful  to  extend  any  wharf  or  other 
works,  or  to  make  any  deposits,  within  the 
harbor  area  as  so  defined,  except  under 
such  regulations  as  the  Secretary  might 
prescribe,  and  laid  upon  the  district  attor- 
ney and  the  officer  in  charge  of  the  harbor 
improvements  the  duty  of  giving  attention 
to  the  enforcement  of  its  prohibitive  and 
punitive  provisions  (chap.  860,  §  12,  25 
Stat,  at  Jm  400,  425;  chi^).  007,  §§  11,  12, 
26  Stat,  at  L.  426,  455,  Comp.  Stat.  1913, 
S  9923).  When  the  claimant  attempted  to 
renew  the  piling  and  rebuild  the  wharf,  they 
were  not  only  below  the  mean  high-water 
line,  but  [581]  within  the  harbor  area  as 
defined  under  this  legislation.  Consistently 
with  its  prohibitions  he  cpuld  not  proceed 
*  with  the  work,  except  under  a  permissible 

S40  U.  8. 


1915. 


CENTRAL  TRUST  00.  v.  CHICAGO  AUDITORIUM  ASSO. 


581 


reflation  of  the  Secretarj  of  War.  It  is 
not  contended  that  the  work  was  thus  made 
permissible,  and  so  the  conclusion  is  un- 
avoidable that  the  claimant  was  proceeding 
in  violation  of  the  statute,  and  that  the 
engineer  officer  and  the  district  attorney 
•rightly  requested,  him  to  desist.  Such  in- 
•convenience  and  damage  as  he  sustained 
resulted  not  from  a  taking  of  his  property, 
hut  from  the  lawful  exercUe  of  a  power  to 
which  it  had  always  been  subject.  Gibson 
IT.  United  States,  166  U.  S.  276,  41  L.  ed. 
1002,  17  Sup.  Ot.  Rep.  678;  Bedford  v. 
United  States,  192  U.  S.  217,  224,  48  L.  ed. 
414,  417,  24  Sup.  Ct  Rep.  238. 
Judgment  affirmed. 

Mr.  Justice  MoReynolds  took  no  part  in 
the  consideration  and  decision  of  this  case. 


CENTRAL  TRUST  COMPANY  OP  ILLI- 
NOIS,  Trustee  of  the  Estate  of  Frank  E. 
Scott     Transfer     Company,     Bankrupt, 

Appt., 


V. 


CHICAGO  AUDITORIUM  ASSOCIATION. 

(No.   162.) 


CHICAGO  AUDITORIUM  ASSOCIATION, 
Appt.  and  Petitioner, 

V. 

CENTRAL  TRUST  COMPANY  OP  ILLI- 
NOIS, Trustee  of  the  Estate  of  Frank  E. 
Scott  Transfer  Company,  Bankrupt.  (No. 
174.) 

(See  S.  C.  Reporter's  ed.  581-694.) 

Appeal  — from  circuit  court  of  appeals 
—  bankruptcy  case  -»  Federal  ques- 
tion. 

1.  A  decision  of  a  circuit  court  of  ap- 
peals that  a  claim  against  a  bankrupt 
estate  for  damages  growing  out  of  the  an- 
ticipatoiT  breach  of  an  executory  contract, 
while  allowable  as  a  provable  debt  for  the 
term  during  which  that  court  thought  that 
the  contract  was  mutually  obligatory, 
should  not  be  allowed  beyond  that  period, 
is  not  reyiewable  in  the  Federal  Supreme 
Court  under  the  bankrupt  act  of  July  1, 
1898  (30  SUt.  at  L.  653,  chap.  541,  Comp. 
Stat.  1913,  S  9609),  §  26b-l,  as  presenting 
a  Federal  question  which  would  sustain  a 
writ  of  error  to  a  state  court. 
[For  other  cases,  see  Appeal  and  Error,  790- 
807,  in  Digest  Sup.  Ct.  190&] 

Note. — On  the  appellate  jurisdiction  of 
the  Federal  Supreme  Court  over  circuit 
eourts  of  appeab— see  notes  to  Bagley  y. 
Oeneral  Fire  Extinguisher  Co.  63  U  ed. 
U.  &  605,  and  St.  Anthony's  Church  v. 
Pennsylyania  R.  0>.  59  L.  ed.  U.  S.  1119. 

On  the  appellate  jurisdiction  of  Federal 
Supreme  Court  in  bankruptcy  cases— see 
note  to  James  t.  Stone,  67  L.  ed.  U.  S.  678. 
«0  lu  ed. 


Bankruptcy  —  provable  debt  —  damages 
for  anticipatory  breach  of  contract. 

2.  The  tiling  of  an  involuntary  petition 
in  bankruptcy  against  a  baggage  transfer 
and  livery  corporation,  followed  by  an  ad- 
judication of  bankruptcy,  is  the  equivalent 
of  an  anticipatory  breach  of  its  executory 
contract  with  a  hotel  company  for  the 
latter's  baggage  and  livery  business,  where 
the  trustee  in  bankruptcy  does'  not  elect  to 
assume  performance,  and  gives  rise  to  a 
claim  provable  in  the  bankruptcy  proceed- 
ings, as  one  ''founded",  within  the  mean- 
ing of  the  act  of  July  1,  1898  (30  Stat, 
at  L.  5G3,  chap.  541,  Comp.  Stat  1913,  § 
9647),  S  63a-4,  "upon  a  contract,  express 
or  implied." 

[For  other  cases,  see  Bankmptcy,  Z.  a.  In  Di- 
gest Sap.  Ct.  1908.1 

Bankruptcy  —  provable  debt  —  damages 

for  anticipatory  breacli  of  contract  — 

term. 

3.  A  bankruptcy  court,  in  allowing  as  a 
provable  debt  a  claim  for  damages  arising 
out  of  the  anticipatory  breach  by  the  bank- 
rupt of  its  executory  Contract  with  a  hotel 
company  for  the  latter's  baggage  and  livery 
business,  should  not  limit  it  to  the  damages 
for  the  six  months  following  such  breach, 
although  the  contract  reserved  to  the  hotel 
company  an  option  to  revoke  the  privileges 
by  givinj^  six  months'  notice  in  writing  of 
its  election  so  to  do,  in  which  case  both 
parties  were  to  be  released  from  further 
liability  at  the  expiration  of  the  six  monthn. 
[For  other  cases,  see  Bankruptcy,  X.  a,  in  Di- 
gest Sup.  Ct.  1908.1 

[Nos.  162  and  174.] 

Argued  January  12,  1916.    Decided  April  3, 

1916. 

CPPEAL  from  the  United  SUtes  Circuit 
Court  of  Appeals  for  the  Seventh  Cir- 
cuit to  review  a  decree  which,  reversing  a 
decree  of  the  District  Court  for  the  North- 
em  District  of  Illinois,  Eastern  Division, 
allowed,  as  a  provable  debt  against  the 
bankrupt  estate,  a  part  of  the  damages 
growing  out  of  the  bankrupt's  anticipatory 
breach  of  an  executory  contract.  Affirmed. 
Also  a 

A  ROSS  APPEAL  from,  and  Certiorari  to, 
the  United  States  Circuit  Court  of  Ap- 
peals for  the  Seventh  Circuit  on  behalf  of 
the  creditors  to  review  the  same  decree. 
Appeal  dismissed,  and  decree  reversed  on 
certiorari. 

See  same  case  below,  132  C.  C.  A.  452, 
216  Fed.  308. 
The  facts  are  stated  in  the  opinion. 

Mr.  Bdwin  O.  Brandenburg  argued  the 
cause,  and,  with  Messrs.  Frederick  D.  Sil- 
her  and  Clarence  J.  Silber,  filed  a  brief  for 
the  Central  Trust  Company  of  Illinois: 

Subdivisions  1  and  4,  of  §  63a,  of  the 
bankrupt  act,  must  be  construed  together, 
and  the  words,  ''absolutely  owing  at  the 

811 


SUPKEHE  COURT  OF  THE  UNITED  STATES.  Oct.  inx, 

time  of  the  filing  of  the  petition,"  etc,  vp-  ISO;  Cottisg  v.  Hooper,  34  Am.  Bankr.  lUp. 

peering  in   RubdiTision  1,  ue  to  be  read  23;  Re  D.  Lev^  ft  Soub  Co.  208  Fed.  479,  SI 

into  and  construed   ta   a  part  of   eubdivi-  Am.  Bankr.  Rep.  26;  Re  American  Vacuum 

■ion  4.  Cleaner  Co.  102  Fed.  939,  26  Am.  Bankr.  Rep. 

Zavelo  T.  Reeves,  227  U.  S.  S2S,  67  L.  ed.  621;    WUliams   v.   United   SUtes   Fidelity 

076,  33  Sup.  Ct.  Rep.  366,  Ann.  Caa.  I914D,  ft  G.  Co.  236  U.  S.  649,  6S  L.  ed.  713,  3ft 

664;  2b  Am.  Bankr.  Rep.  493;  Re  Roth,  31  Sup.  Ct.  Rep.  289,  34  Am.  Bankr.  Rep.  181. 

LJl.A.(N.S.)  270,  104  C.  C.  A.  649,  161  Fed.  For  the  aame  reason,  as  applied  to  leaae- 

087,  24  Am.   Bankr.  Rep.  688;   Cobnan  Co.  hold   contracta,   aubsequent   inetalm'enta   of 

T.  Witboft,  IIS  C,  0.  A.  222,  ISB  Fed.  260,  rent  or  damage!  for  alleged  breach  throu|^ 

28  Am.  Bankr.  Rep.  329.  bankniptcy  of  one  of  the  partiea  are  not 

Anticipatory  breach  of  an  executory  con-  prorable  in  bankruptcy. 

tract  resultii  from  a  poaitive,  unconditional,  Wataon  t.  Merrill,  OB  L.R.A.  719,  69  C.  C 

and   unequivocal    declaration    by    a    party  A.  186,  136  Fed.  359,  14  Am.  Bankr.  Rep. 

thereto,  of  a  fixed  purpose  not  to  perform  453;   Colman  Co.  *.  Withoft,  116  C.  C.  A. 

the  contract,  in  any  event  or  at  any  time.  222,  196  Fed.  250,  28  Am.  Bankr.  Rep.  328; 

Dingley  v.  Oler,  117  U.  S.  490,  29  L.  ed.  Re  Roth,  31  L.RA.(N.S.)  270,  104  C.  C.  A. 

984,  «  Sup.  Ct.  Rep.  860;  Roehm  v.  Horst,  649,  161  Fed.  667,  24  Am.  Bankr.  Rep.  6S8; 

178  U.  S.  1,  44  L,  ed.  053,  20  Sup.  a.  Rep.  Slocum   v.   Soliday,   108   C.   0.   A.   5«,   183 

780;  Lake  Shore  ft  M.  S.  R.  Co.  v.  Richards,  Fed.  410,  26  Am.  Bankr.  Rep.  460. 

152  III.  59,  30  L.RA.  33,  38  N.  E.  773;  Zuck  The   contract   involved   pasacd   by   opera- 

T.  McClure,  99  Fa.  641;  Johnstone  v.  Hill-  tion  of  law  as  part  of  the  bankrupt's  estate 

ing.  L.  R.  16  Q.  B.  Div.  400.  66  L.  J.  Q.  B.  to  the  appellant  as  its  trustee. 

N.  S.  162,  64  L.  T.  N.  S.  629,  34  Week.  Rep.  Gazlay  v.  Williams,  210  U.  S.  41,  62  L. 

238,  50  J.  P.  694 ;   Dalrymple  v.  Scott,   10  cd.  960,  28  Sup.  Ct.  Rep.  687,  20  Am.  Bankr. 

Ont.  App.  Rep.  477;   People  v.  Globe  Mut.  Rep.  18. 

L.  Ins.  Co.  Bl  N.  Y.  174;  Lovell  v.  St.  Louis  And  as  such,  the  appellant  had  a  reason- 

Mut.  L.  Ins.  Co.  Ill  U.  S.  264,  28  L.  ed.  423,  able  length  of  time  after  iU  election   and 

4  Sup.  Ct.  Rep.  3B0;  Carr  v.  Hamilton,  129  qualification  as  trustee,  to  either  assume  or 

U.  S.  252,  32  L.  ed.  06B,  B  Sup.  Ct.  Rep.  2B6;  renounce  performance  of  the  contract. 

Pennsylvania  Steel  Co.  t.  New  York  City  Sparhawk  v.  Yerkes,  142  U.  8.  1,  13,  3& 

R.  Co.  117  C.  C.  A.  603,  198  Fed.  736.  L.  ed.  915,  918,  12  Sup.  Ct.  Rep.  10*;  Sea- 

Keither  insolvency  nor  the  filing  of  an  aions  v.  Romadka,  145  U.  8,  29,  36  L.  ed. 

involunUry    petition    in    bankruptcy,    fol-  609,  12  Sup.  Ct  Rep.  7B9;   Atchiaon,  T.  A 

lowed  by  adjudication,  constitutes  a  breach  S.  F.  R.  Co.  v.  Hurley,  82  C.  C.  A.  463,  163 

of  an  executory  contract,  to  which  the  in-  Fed.  603,  18  Am.  Bankr.  Rep.  3B6. 

solvent  or  bankrupt  is  a  party,  and  from  The  cross  appeal  should  be  dismissed, 

which  a  provable  debt  accrues.  Chapman  v.  Bowen,  207  U.  8.  89,  C2  L. 

Phenix  Nat.  Bank  t.  Waterbury,  1B7  N.  rf.   ]ifl_   28   Sup.   Ct.   Rep.  32;   Kenney   v, 

T.  181,  90  N.  E.  436,  23  Am.  Bankr.  Rep.  Craven,   215   U.   S.  125,  54   L.   ed.  122,"  30 

Re  Agra  Bank,   L.  R.  6   Eq,   J60,  37  gup.  Ct.  Rep.  64;   Blake  r.  Openhym,  21» 


L.  J.  Oh.  N.  S.  121,  16  Week.  Rep.  270; 


.  322,  64  L.  ed.  499,  30  Sup.  Ct.  Rep. 


Malcomson  vWappoo  Mills,  88  Fed    880;  ^'g    ^ew' Jersey  City  ft  B.  R.  Co.  v.  Mor- 

R«   Inman,   171    Fed.   186,   22   Am.   Bankr.    _      ,.„  ,,    j,   '    o    ak  i     ^    Atn    -la  a 

Rep.  624,  175  Fed.  312,  23  Am.  Bankr.  Rep,  8^' J""  ^'f-  !!?'  "  ^-  ^-  *?"'  "  ^"J"- 

666;    Lesser   v.   Gray,  9   Ga.   App.   806,   70  "■   ^^P"    f,t\,"L"Z'  ,*.\"L  ^.Tf J  « 

S.  E,  104,  affirmed  in  238  U.  S.  70.  59  L.  ed.  Andnjmo,  138  U.  8.  4B7,  34  L.  ed.  1013,  U 

471,  35  Sup.  Ct.  Rep.   227,  34  Am.  Bankr.  ^"P-  ^-  ^P-  ^86. 

Rep.  8;   Re  Imperial  Brewing  Co.  143  Fed.  Mr.  WllIlMU  D.  Bangs  argued  the  eftuse, 

570,  16  Am.  Bankr.  Bep.  110;  Re  Montague,  ^nd,  with  Messrs.  Rudolph  Mate  and  John 

32  Am.  Bankr.  Rep.  108;  Re  Swift,  60  C.  C.  q,   Mechem,   filed   a   brief   for   the  Chleac» 

A.  264,   112   Fed.  315,   7   Am.   Bankr.  Rep.  Aujjtorium  Association: 

"\" /'.,*■  ""■ "'  """•  "• "  ^°  ™rbT.z  "t.  p.„.»„» .. . 

Bankr.  Rep.  23.  .         i.     .         ^      i          . 

The  resulting  claim  for  damages,  if  bank-  ''^^'*  *>'  «•"*'«'■           „„,,,,     ^ 

mptcy    is    in    fact    a    breach7«n«titutes  K«»"°  "■  ^orst,  178  U.  S.  1,  44  L  ad. 

nothing    more    than    a    contingent    cUim,  "^3,  20  Sup.  a.  Rep.  780. 

whicli    is   nonprovable    under    the   present  B.  Insolvency  is  often  a  disablement. 

bankruptcy  act,  5  63a.  Chemical  Nat.  Bank  v.  World's  Colnm- 

1  Remington,  Bankr.  2d  ed.  5  641;  Dun-  bian  Exposition,  170  DI.  82,  48  N.  E.  331; 

bar  V.  Dunbar.  100  U.  8.  340,  47  L.  ed.  1084,  Bank  Comrs.  v.  New  Hampshire  Trust  On* 

03  Sap.  Ct.  Sep.  767,  10  Am.  Bankr.  Bep.  89  N.  H.  021,  44  Atl.  130. 

SJ»  140  V.  •• 


191  o. 


CENTRAL  TRUST  CO.  v.  CHICAGO  AUDITORIUM  ASSO. 


586,  586 


C.  And  similarly,  the  appointment  of  a 
receiver. 

Pennsylvania  Steel  Co.  v.  New  York  City 
R.  Co.  117  C.  C.  A.  503,  198  Fed.  721. 

D.  Or  proceedings  for  liquidation  under 
s]>ccial  statutes. 

Lovell  V.  St.  Louis  Mut.  L.  Ins.  Co.  Ill 
U.  S.  2G4,  28  L.  ed.  423,  4  Sup.  Ct.  Rep.  390; 
Carr  v.  Hamilton,  120  U.  S.  252,  32  L.  ed. 
669,  9  Sup.  Ct.  Rep.  295. 

£.  Bankruptcy  is  a  complete  disablement 

Re  Swift,  50  C.  C.  A.  264,  112  Fed.  315; 
Re  PettingiU,  137  Fed.  143;  Re  NeflT,  28 
LJIJL(N.S.)  349,  84  C.  C.  A.  561,  157  Fed. 
hi ;  Re  Duquesne  Incandescent  Light  Co.  176 
Fed.  785;  Re  Dr.  Voorhees  Awning  Hood 
Co.  187  Fed.  611. 

A  claim  for  damages  for  a  material 
lireach  of  an  executory  contract  caused  by 
bankruptcy  constitutes  a  provable  debt. 

Zavelo  y.  Reeves,  227  tl.  S.  625,  57  L.  ed. 
676,  33  Sup.  Ct.  Rep.  365,  Ann.  Cas.  1914D, 
664;  Ex  parte  Pollard,  2  Low.  Dec  411,  Fed. 
Cas.  No.  11,252;  Re  Swift,  50  C.  C.  A.  264, 
112  Fed.  315;  Re  PettingiU,  137  Fed.  143; 
Re  Neff,  28  L.RJL(N.S.)  349,  84  C.  C.  A. 
^1,  157  Fed.  57;  Re  Duquesne  Incandes- 
cent Light  Co.  176  Fed.  785;  Re  Dr  Voor- 
hees Awning  Hood  Co.  187  Fed.  611;  Penn- 
sylvania Steel  Co.  v.  New  York  City  R. 
Co.  117  C.  C.  A.  503,  198  Fed.  721;  Lesser 
▼.  Gray,  236  U.  S.  70,  59  L.  ed.  471,  35  Sup. 
Ct  Rep.  227;  Frederic  L.  Qrant  Shoe  Co. 
T.  W.  M.  Laird  Co.  212  U.  S.  445,  53  L.  ed. 
591,  29  Sup.  Ct.  Rep.  332. 

The  present  case  does  not  involve  an 
anticipatory  breach  of  contract. 

WilUston,  Wald's  PoUock,  Contr.  pp.  362, 
363;  Lowe  v.  Harwood,  139  Mass.  135,  29 
N.  E.  53d. 

The  claim  is  provable,  although  the  dam- 
ages are  unliquidated  and  the  trustee  has 
an  option  to  continue  the  performance  of 
executory  contracts. 

Frederic  L.  Grant  Shoe  Co.  v.  W.  M. 
Laird  Co.  212  U.  S.  445,  53  U  ed.  591,  29 
Sup.  Ct.  Rep.  332;  Re  Swift,  50  C.  C.  A. 
264,  112  Fed.  315;  Dunbar  v.  Dunbar,  190 
U.  S.  340,  47  L.  ed.  1084,  23  Sup.  Ct.  Rep. 
757;  Cobb  v.  Overman,  54  LJIA.  369,  48 
0.  C.  A.  223,  109  Fed.  65. 

The  rule  as  to  the  material  breach  of  a 
covenant  to  pay  rent  does  not  apply  to  the 
material  breach  of  executory  contracts. 

Co.  Litt.  p.  292b,  §§  512,  513;  Re  Roth, 
31  L.RJk.(N.S.)  270,  104  C.  C.  A.  649,  181 
Fed.  667 ;  Watson  v.  Merrill,  69  L.R.A.  719, 
69  C.  C.  A.  185,  136  Fed.  359;  Slocum  v. 
Soliday,  106  0.  C.  A.  56,  183  Fed.  410. 

An  option  in  one  party  of  cancelation 
upon  stipulated  contingencies  does  not, 
after  material  breach  by  the  other  party, 
affect  the  recovery  of  damages  for  breach 
60  li.  ed. 


of  contract  by  that  party  for  whose  benefit 
the  option  was  inserted. 

Dunbar  v.  Dunbar,  190  U.  S.  340,  47  L. 
ed.  1084,  23  Sup.  Ct.  Rep.  757. 

The  general  policy  of  the  bankruptcy 
act  favors  the  provability  of  claims  for 
damages  upon  executory  contracts  matured 
by  bankruptcy. 

Williams  v.  United  SUtes  Fidelity  &  G. 
Co.  236  U.  S.  549,  59  L.  ed.  713,  35  Sup.  a. 
Rep.  289. 

Mr.  Justice  Pitney  delivered  the  opinion 
of  the  court: 

On  July  22,  1911,  a  creditors'  petition 
in  bankruptcy  was  filed  against  the  Frank 
E.  Scott  Transfer  Company,  an  Illinois  cor- 
poration, and  it  was  adjudged  a  bankrupt 
on  August  7.  The  act  of  bankruptcy 
charged  and  adjudicated  does  not  appear. 
When  the  proceedings  were  commenced,  the 
bankrupt  held  contract  relations  with  the 
Chicago  Auditorium  Association  under  a 
written  agreement  made  between  them  Feb- 
ruary 1,  1911,  which  had  been  partially 
[586]  performed.  By  its  terms  the  Asso- 
ciation granted  to  the  Transfer  Company, 
for  a  term  of  five  years  from  the  date  of 
the  contract,  the  baggage  and  livery  privi- 
lege of  the  Auditorium  Hotel,  in  the  city  of 
Chicago;  that  is  to  say,  the  sole  and  exclu- 
sive right,  so  far  as  it  was  within  the  legal 
capacity  of  the  Association  to  grant  the 
same,  to  transfer  baggage  and  carry  pas- 
sengers to  and  from  the  hotel  and  to  furnish 
livery  to  its  guests  and  patrons.  For  the 
baggage  privilege  the  Transfer  Company 
agreed  to  pay  to  the  Association  the  sum 
of  $6,000,  in  monthly  instalments  of  $100 
each,  and  for  the  livery  privilege  the  siun 
of  $15,000,  in  monthly  instalments  of  $250 
each,  and  also  agreed  to  furnish  to  the  hotel 
and  its  guests  and  patrons  prompt  and  efil- 
cient  baggage  and  livery  service  at  reason- 
able rates  at  all  times  during  the  continu- 
ance of  the  privileges.  It  was  further 
agreed  as  follows: 

"The  party  of  the  first  part  [Chicago 
Auditorium  Association],  however,  f'eserves 
the  right,  which  is  an  express  condition  of 
the  foregoing  grants,  to  cancel  and  revoke 
either  or  both  of  said  privileges,  by  giving 
six  months'  notice  in  writing  of  its  election 
so  to  do,  whenever  the  service  is  not,  in  the 
opinion  of  the  party  of  the  first  part,  satis- 
factory, or  in  the  event  of  any  change  in 
management  of  said  hotel;  and  in  case  of 
the  termination  of  either  or  both  of  said 
privileges  by  exercise  of  the  right  and  op- 
tion reserved  by  this  paragraph,  such  privi- 
lege or  privileges  shall  cease  and  determine 
at  the  expiration  of  the  six  months'  notice 
aforesaid,  and  both  parties  hereto  shall  in 
that  case  be  released  from  further  liability 

8^ 


68(^89 


SUPRElktE  COURT  OF  THE  UNITED  STATES. 


Cot.  Tdm, 


respecting  the  concession  so  canceled  and 
revoked. 

"Said  rights  and  concessions  shall  not  be 
assignable  witliout  the  express  written  con- 
sent of  the  party  of  the  first  part,  nor  shall 
the  assignment  of  the  same,  with  Huch  writ- 
ten consent,  relieve  the  party  of  the  second 
part  [Scott  Transfer  Company]  from  lia- 
bility on  the  covenants  and  agreements  of 
this  instrument." 

[587]  The  contract  authorized  the  Asso- 
ciation, in  the  event  of  default  by  the 
Transfer  Company  in  the  payment  of  any 
instalment  of  money  due,  or  in  the  per- 
formance of  any  other  covenant,  if  contin- 
ued for  thirty  days,  to  terminate  the  privi- 
leges at  its  option,  without  releasing  the 
Transfer  Company  from  liability  upon  its 
covenants.  Should  either  or  both  of  the 
privileges  be  thus  terminated  before  Jan- 
uary 31,  191G,  the  Association  was  to  be 
at  liberty  to  sell  the  privileges,  or  make  a 
new  or  diiTerent  contract  for  the  remainder 
of  the  term,  but  was  not  to  be  obliged  to 
do  this,  and  the  Transfer  Company,  unless 
released  in  writing,  was  to  remain  liable  for 
the  entire  amount  agreed  to  be  paid  by  it. 

Up  to  the  time  of  the  bankruptcy  this 
contract  remained  in  force,  and  neither 
party  had  violated  any  of  its  covenants. 
The  trustee  in  bankruptcy  did  not  elect  to 
assume  its  performance,  and  the  Associa- 
tion entered  into  a  contract  with  other  par- 
ties for  the  performance  of  the  baggage  and 
livery  service,  and  obtained  therefrom  the 
sum  of  $234.69  monthly  as  compensation 
for  those  privileges.  On  February  28,  1912, 
it  exhibited  its  proof  against  the  bankrupt 
ettate,  claiming  an  indebtedness  of  $6,- 
537.94,  of  which  $311.20  had  accrued  prior 
to  the  bankruptcy  proceedings,  and  the  re- 
mainder was  claimed  as  unliquidated  dam- 
ages arising  under  the  contract  for  alleged 
breach  thereof  on  the  part  of  the  bankrupt 
through  the  bankruptcy  proceedings.  Of 
this  amount  $691.86  represented  the  loss 
incurred  during  the  first  six  months  of 
bankruptcy.  Objections  filed  by  the  trustee 
were  sustained  by  the  referee,  except  as  to 
that  portion  of  the  claim  which  had  ac- 
crued prior  to  the  bankruptcy  proceedings. 
On  review,  the  district  court  sustained  this 
decision.  On  appeal  to  the  circuit  court  of 
appeals,  the  order  of  the  district  court  was 
reversed,  and  the  cause  remanded  with  di- 
rection to  allow  $691.86  upon  the  claim,  and 
to  disallow  the  remaining  portion.  132  C. 
C.  A.  452,  216  Fed.  308. 

[588]  An  appeal  to  this  court  by  the 
trustee  in  bankruptcy  was  allowed,  under 
§  26b-2  of  the  bankruptcy  act  (of  July  1, 
1898,  ohap.  541,  30  Stat,  at  L.  544,  553, 
Comp.  Stat.  1913,  §§  9585,  9609),  upon  a 
certiic&te  by  a  justice  of  this  court  that  the 
314 


determination  of  the  questions  involved  was 
essential  to  a  uniform  construction  of  the 
act  throughout  the  United  States.  This  is 
No.  162.  Thereafter  a  cross  appeal  by  the 
Auditorium  Association  was  allowed  by  one 
of  the  judges  of  the  circuit  court  of  appeals. 
This  is  No.  174. 

A  motion  is  made  to  dismiss  the  cross 
appeal,  and  this  must  be  granted.  In  the 
absence  of  the  certificate  prescribed  by 
§  25b-2,  the  sole  authority  for  an  appeal 
from  a  decision  of  the  circuit  court  of  ap- 
peals, allowing  or  rejecting  a  claim,  is 
found  in  §  25b-l :  *'Where  the  amount  in 
controversy  exceeds  the  sum  of  two  thou- 
sand dollars,  and  the  question  involved  is 
one  which  might  have  been  taken  on  appeal 
or  writ  of  error  from  the  highest  court  of  a 
state  to  the  Supreme  Court  of  the  United 
States."  This  limits  such  appeals  to  cases 
where  Federal  questions  are  involved,  of  the 
kind  described  in  §  237,  Judicial  Code  (36 
Stat,  at  L.  1156,  chap.  231,  Comp.  Stat. 
1913,  9  1214) .  The  motion  to  dismiss  is  re- 
sisted upon  the  ground  that  the  claim  of  the 
Association  to  damages  beyond  a  period  of 
six  months  was  denied  by  the  court  of  ap- 
peals as  not  constituting  a  provable  debt  in 
bankruptcy,  and  that  a  Federal  question  is 
thus  necessarily  presented,  provability  de- 
pending upon  a  construction  of  the  bank- 
ruptcy act.  An  examination  of  the  opinion 
of  that  court,  however,  shows  that  while  it 
held  that  damages  for  anticipatory  breach 
of  the  contract  were  provable,  it  held  that 
the  contract  itself,  because  of  the  option 
reserved  to  the  Auditorium  Association  to 
cancel  it  on  six  months'  notice,  was  mu- 
tually obligatory  for  that  term  only,  and 
hence  no  damages  beyond  that  period  were 
allowable.  This  involved  no  Federal  ques- 
tion. Chapman  v.  Bowen,  207  U.  S.  89,  92, 
52  L.  ed.  116,  117,  28  Sup.  Ct.  Rep.  32. 

But,  in  view  of  the  general  importance 
of  the  question  of  the  amount  allowable  in 
its  relation  to  the  questions  [580]  involved 
in  the  trustee's  appeal,  we  have  concluded 
that  a  certiorari  should  be  allowed  in  lieu 
of  the  cross  appeal. 

Coming  to  the  merits:  It  is  no  longer 
open  to  question  in  this  court  that,  as  a 
rule,  where  a  party  bound  by  an  executory 
contract  repudiates  his  obligations  or  dis- 
ables himself  from  performing  them  before 
the  time  for  performance,  the  promisee  has 
the  option  to  treat  the  contract  as  ended, 
so  far  as  further  performance  is  concerned^ 
and  maintain  an  action  at  once  for  the  dam- 
ages occasioned  by  such  anticipatory  breach, 
llie  rule  has  its  exceptions,  but  none  that 
now  concerns  us.  Roehm  ▼.  Horst,  178  U. 
S.  1,  18,  10,  44  L.  ed.  953,  960,  961,  20 
Sup.  Ct.  Rep.  780.  And  see  O'Neill  t.  Su- 
preme Council,  A.  L.  H.  70  N.  J.  L.  41 0». 

140  17.  8. 


IMS. 


CENTRAL  TRUST  CO.  v.  CBICAGO  AUDITORIUM  AS80. 


412,  67  AU.  403,  1  Ann.  Cu.  422. 
u  DO  doubt  that  the  Bame  rule  taut 
plied  where  ft  lunilar  repudiation 
oblemetit  oeeura  during  perfc 
Wbetilier  the  interrention  ot  btu 
constitutes  HUch  a  breach  and  givei 
a  claim  provable  in  the  bankruptcy 
isgt  ii  k  queition  not  covered  by  i 
vioui  dcciaion  of  thia  court,  and  upo 
the  otiier  Federal  courts  ore 
flict.  It  was,  however,  held  in  I 
St.  I^uis  :Mnt.  L.  int.  Co.  Ill  U. 
274,  28  L.  ed.  423,  428,  4  Sup.  ( 
390,  where  a  lile  Iniurance  comp 
came  Inaolvent  and  transferred  it 
to  another  company,  that  ■  polic] 
woa  entitled  to  regard  bis  contract 
minated  uid  demand  whatever  dan 
luid  snitained  thereby.  And  see 
Hamilton,  129  U.  S.  252,  250,  32  L, 
C70,  9  Sup.  Ct.  Rep.  295.  In  suppoi 
provability  of  the  claim  in  controvi 
port*  Pollard,  2  Low.  Dec.  411,  F 
No.  11,252;  Re  Swift  (C.  C.  A.  1st 
C.  A.  2S4,  112  Fed.  315,  319,  321;  I 
(C.  C.  A.  2d)  54  C.  C.  A.  60,  116  F 
Be  Pettingitt  {D.  C.  Moaa.)  137  f 
146,  147;  Re  Nelf  (C.  C.  A.  6th }  21 
<N.S.)  3ie.  84  C.  C.  A.  561.  157 
01,  ore  referred  to;  and  see  Penm 
Steel  Co.  V.  New  York  City  R.  Co.  ( 
2d)  117  C.  C.  A.  603,  1B8  Fed.  7 
744.  To  the  contrary,  Re  Imperial 
Co.  (D.  C.  Mo.)  143  Fed.  670;  R< 
(O.  C.  Go.)  171  Fed.  185,  s.c.  1 
812;  [S90]  beaidee  which  a  nui 
eases  arising  out  of  the  relation  of 
and  tenant  are  cited:  Re  Ella,  98  F 
Re  Peonewell,  SG  C.  C.  A.  671, 119  F 
Watson  V.  Merrill,  69  L.R.A.  719,  I 
A.  185,  136  Fed.  359;  Re  Roth,  31 
(N.S.)  270, 104  C.  C.  A.  640,  181  F 
Colman  Co.  v.  Withoft,  115  C.  C. 
I9S  Fed.  260.  Cases  of  the  Utter  c 
diatinguiihable  because  of  tbe  "i 
betweene  duties  which  touch  the  res 
the  meere  personalty."  Co.  Litt. 
I  613. 

The  contract  with  which  we  have 
waa  not  a  contract  of  personal  serv 
ply,  but  was  of  such  a  nature  as  e 
to  require  a  considerable  amount  of 
in  tbv  abape  of  equipment,  etc., 
proper  performance  by  tbe  Tranifi 
pany.  The  immediate  effect  ot  boo 
waa  to  atrip  the  company  of  its  ass 
thus  disable  it  from  performing, 
be  conceded  that  tbe  contract  waa 
able,  and  passed  to  the  trustee  und( 
(SO  SUt.  at  L.  666,  chap.  641,  Com 
1913,  g  9664),  to  the  extent  that  it 
t^tion  to  perform  it  in  the  place 
bankrupt  (aee  Sparhawk  t.  Yerkea, 
8.  1,  IS,  36  L.  ed.  015,  918,  12  Sup.  Ct.  Rep. 
«0  L.  ed. 


104;  Sunflower  dil  Co.  t.  Wilson,  142  U.  8. 
313.  322,  35  L.  ed.  1026,  1038,  12  Sup.  Ct. 
Rep.  235) ;  for  although  there  waa  a  atipu- 
lation  against  aBSignment  without  consent 
of  tbe  Auditorium  Association,  it  may  be 
assumed  that  this  did  not  prevent  an  as- 
signment by  operation  of  law.  Still,  the 
trustee  in  bankruptcy  did  not  elect  to  aa- 
iume  performance,  end  so  the  matter  is 
left  as  if  the  law  had  conferred  no  such 
election. 

It  ia  argued  that  there  can  be  no  antici- 
patory breach  of  a  contract  except  it  result 
from  the  voluntary  act  of  one  of  the  par- 
ties, and  that  the  filing  of  an  involuntaij 
petition  in  bankruptcy,  with  adjudication 
thereon,  is  but  the  act  ot  the  law  reaulting 
from  an  adverse  proceeding  instituted  by 
creditors.  This  view .  waa  taken,  with  re- 
spect to  the  effect  of  a  state  proceeding  re- 
straining a  corporation  from  tlie  further 
prosecution  of  its  buiineaa  or  the  Gxvrcisc 
of  its  corporate  franchiaes,  appointing  a  re- 
ceiver, and  [6S1]  disaolving  the  corpora- 
tion, in  People  v.  Globe  Mut.  L.  Ins.  Co.  91 
N.  Y.  174,  cited  with  approval  in  some  of 
the  Federal  court  decisions  above  referred 
to.  In  that  case,  it  did  not  appear  that  the 
company  was  the  responsible  cause  of  the 
action  of  the  state,  so  as  to  make  the  dis- 
solution its  own  act;  but,  irrespective  of 
this,  we  cannot  accept  tlie  reasoning.  A* 
was  said  in  Roehm  v.  Horst,  178  U,  S.  19,  44 
L.  ed.  960,  20  Sup.  Ct.  Rep,  780:  "The  par- 
ties to  a  contract  which  is  wholly  executory 
have  a  right  to  the  maintenance  of  the  con- 
tractual relations  up  to  tbe  time  tor  per- 
formance,, as  well  aa  to  a  performance  of 
the  contract  when  due."  Commercial  cred- 
its are,  to  a  large  extent,  based  upon  the 
reasonable  expectation  that  pending  con- 
tracta  of  acknowledged  validity  will  be  per- 
formed in  due  course;  and  the  same  prin- 
ciple that  entitles  the  promisee  to  continued 
willlngneai  entitles  him  to  continued  ability 
on  the  part  of  the  promiaor.  In  abort,  it 
must  be  deemed  an  implied  term  of  every 
contract  that  the  promisor  will  not  permit 
himself,  through  insolvency  or  acts  of  bank- 
ruptcy, to  be  disabled  from  making  per- 
formance;  and,  in  this  view,  bankrupb^ 
proceedings  ore  but  tbe  natural  and  legal 
consequence  of  something  done  or  omitted 
to  be  done  by  the  bankrupt,  in  violation 
of  his  engagement.  It  it  the  purpose  of  tha 
bankruptcy  act,  generally  speaking,  to  per- 
mit all  creditora  to  ahare  in  the  diitrfbn- 
tion  of  the  assets  of  the  bankrupt,  and  to 
leave  the  honest  debtor  thereafter  free  from 
liability  upon  previous  obtlgatiooa.  Wil- 
liams v.  United  SUtes  Fidelity  k  0.  Co. 
236  U.  8.  540,  664,  60  L.  ed.  713,  716,  S6 
Sup.  Ot.  Rep.  289.    Executory  •4p%ei&K«te 


591^94 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbbm» 


play  80  important  a  part  In  the  commercial 
world  that  it  would  lead  to  most  unfortu- 
nate results  if,  by  interpreting  the  act  in 
a  narrow  sense,  persons  entitled  to  per- 
formance of  such  agreements  on  the  part 
of  bankrupts  were  excluded  from  partici- 
pation in  bankrupt  estates,  while  the  bank- 
rupts themselves,  as  a  necessary  corollary, 
were  left  still  subject  to  action  for  nonper- 
formance in  the  future,  although  without 
the  property  or  credit  often  necessary  to 
enable  them  to  perform.  [502]  We  con- 
clude that  proceedings,  whether  voluntary 
or  involuntaJry,  resulting  in  an  adjudication 
of  bankruptcy,  are  the  equivalent  of  an 
anticipatory  breach  of  an  executory  agree- 
ment within  the  doctrine  of  Roehm  v.  Horst, 
supra. 

The  claim  for  damages  by  reason  of  such 
a  breach  is  "founded  upon  a  contract,  ex- 
press or  implied,"  within  the  meaning  of 
%  63a-4,  and  the  damages  may  be  liqui- 
dated under  §  63b.  Frederic  L.  Grant  Shoe 
Co.  V.  W.  M.  Laird  Co.  212  U.  S.  445,  448, 
4»  L.  ed.  691,  503,  29  Sup.  Ct.  Rep.  332. 
It  is  true  that  in  Zavelo  v.  Reeves,  227  U. 
8.  625,  631,  57  L.  ed.  676,  678,  33  Sup.  Ct. 
Rep.  365,  Ann.  Cas.  1914D,  664,  we  held 
that  the  debts  provable  under  §  63a-4  in- 
clude only  such  as  existed  at  the  time  of 
the  filing  of  the  petition.  But  we  agree 
with  what  was  said  in  Ex  parte  Pollard, 
2  Low.  Dec.  411,  Fed.  Cas.  No.  11,252,  that 
it  would  be  "an  unnecessary  and  false 
nicety"  to  hold  that  because  it  was  the  act 
of  filing  the  petition  that  wrought  the 
breach,  therefore  there  was  no  breach  at 
the  time  of  the  petition.  As  was  held  by 
the  same  learned  judge  in  Re  Pettingill, 
137  Fed.  143,  147 ;  "The  test  of  provability 
under  the  act  of  1898  may  be  stated  thus: 
If  the  bankrupt,  at  the  time  of  bankruptcy, 
by  disenabling  himself  from  performing  the 
contract  in  question,  and  by  repudiating  its 
obligation,  could  give  the  proving  creditor 
the  right  to  maintain  at  once  a  suit  in  which 
damages  could  be  assessed  at  law  or  in 
equity,  then  the  creditor  can  prove  in  bank- 
ruptcy on  the  ground  that  bankruptcy  is 
the  equivalent  of  disenablement  and  repudia- 
tion. For  the  assessment  of  damages  pro- 
ceedings may  be  directed  by  the  court  under 
I  63b  (80  Stat,  at  L.  563,  chap.  541,  Comp. 
Stat.  1913,  §  9647 ) ."  It  was  in  effect  so  ruled 
by  this  court  in  Lesser  v.  Gray,  236  U.  S. 
70,  75,  59  L.  ed.  471,  475,  35  Sup.  Ct.  Rep. 
227,  where  it  was  said:  "If,  as  both  the 
bankruptcy  and  state  courts  concluded,  the 
contract  was  terminated  by  the  involuntary 
bankruptcy  proceeding,  no  legal  injury  re- 
sulted. If,  on  the  other  hand,  that  view 
of  the  law  was  erroneous,  then  there  was  a 
breach  and  defendant  Gray  became  liable 
for  Muy  ivtiulting  damage;  but  he  was  re- 


leased  therefrom  by  his  [503]  discharge." 
Of  course,  he  could  not  be  released  unless 
the  debt  was  provable. 

We  therefore  conclude  that  the  circuit 
court  of  appeals  was  correct  in  holding  t&at 
the  intervention  of  bankruptcy  eonstituted 
such  a  breach  of  the  contract  in  question 
as  entitled  the  Auditorium  Association  to 
prove  its  claim. 

The  denial  of  all  damages  except  such  as 
accrued  within  six  months  after  the  filing 
of  the  petition  was  based  upon  the  ground 
that  the  contract  reserved  to  the  Associa- 
tion an  option  to  revoke  the  privileges  by 
giving  six  months'  notice  in  writing  of  Its 
election  so  to  do,  in  which  case  both  parties 
were  to  be  released  from  further  liability 
at  the  expiration  of  the  six  months.  It 
was  held  that  because  of  this  the  contract 
was  mutually  obligatory  for  that  term  onlj, 
and  uncertain  and  without  force  for  any 
longer  term  of  service  in  future,  within  the 
ruling  of  this  court  in  Dunbar  v.  Dunbar« 
190  U.  S.  340,  47  L.  ed.  1084,  23  Sup.  Ct 
Rep.  757.  In  that  case  the  contract  was 
to  pay  to  a  divorced  wife  "during  her  life, 
or  until  she  marries,  for  her  maintenanee 
and  support,  yearly,  the  sum  of  $500;"  and 
it  was  held  that  for  instalments  falling 
due  after  bankruptcy  the  husband  remained 
liable,  notwithstanding  his  discharge,  on 
the  ground  that  the  wife's  claim  for  such 
payments  was  not  provable  because  of  the 
impossibility  of  calculating  the  oontinuanee 
of  widowhood  so  as  to  base  a  valuation  up- 
on it.  The  court  referred  to  the  1903  amend- 
ment of  §  17  of  the  bankruptcy  act  (32 
Stat,  at  L.  797,  chap.  487,  Comp.  SUt.  191S, 
§  9601 ) ,  relating  to  debts  not  affected  by  a 
discharge,  and  including  among  these  a  lia- 
bility for  alimony  due  or  to  become  due 
for  maintenance  or  support  of  wife  or  child. 
This,  while  enacted  after  the  Dunbar  suit 
was  begun,  and  not  applicable  to  it,  was 
cited  as  showing  the  legislative  trend  in 
the  direction  of  not  discharging  an  obliga- 
tion of  the  bankrupt  for  the  support  of  his 
wife  or  children.  The  authority  of  that  de- 
cision cannot  be  extended  to  cover  [594] 
such  a  case  as  the  present.  Here  the  obliga- 
tion of  the  bankrupt  was  clear  and  uncondi- 
tional. The  right  reserved  to  the  Auditori- 
um Association  to  cancel  and  revoke  the 
privileges  was  reserved  for  its  beneflty  not 
that  of  the  grantee  of  those  privilfges.  It 
does  not  lie  in  the  mouth  of  the  latter,  or  of 
its  trustee,  to  say  that  its  service  would  not 
be  satisfactory,  and  there  is  no  presumption 
that  otherwise  it  would  have  been  advan- 
tageous to  the  Association  to  exercise  the 
option.  It  results  that  the  decree,  in  so 
far  as  it  limits  the  provable  claim  to  a 
period  of  six  months  after  the  bankrupt^, 
must  be  reversed,  and  the  cause  remanded 

940  U.  8. 


1915. 


PINEL  V.  PINEL. 


694 


for  further  proceedings  in  conformitj  with 
this  opinion. 

No.  162.  Decree  affirmed. 

No.  174.  Appeal  dismissed,  certiorari  al- 
lowed, and  decree  reversed. 


HERMAN  H.  PINEL  and  Sarah  Slyfield, 

Appts., 


T. 


THOMAS  F.  PINEL,  Thomas  F.  Pinel  as 
Special  Administrator  of  the  Estate  of 
Edgar  O.  Pinel,  Deceased,  and  Baehael 
PineL 

(See  S.  C.  Reporter's  ed.  694-598.) 

Fejderal  courts  —  Jurisdictional  amount 
^  uniting  claims  —  distinct  demands. 

1.  The  amount  in  controversy  essential 
to  the  jurisdiction  of  a  Federal  district 
eourt  is  not  involved  in  a  suit  by  two  chil- 
dren to  establish  their  alleged  title  to  an 
undivided  interest  in  their  deceased  father's 
real  property,  based  upon  his  omission, 
through  accident  or  mistake,  to  provide  for 
them  in  his  will,  where  the  value  of  the  in- 
terest of  neither  complainant,  taken  sep- 
arately, equals  the  jurisdictional  amount. 
[For  other  cases,  see  Courts,  908-911,  in  Di- 

test  Sup.  Ct.  1908.] 

Pleading  «  averring  Jurisdictional 
amount. 

2.  The  averment  in  the  bill  in  a  suit  to 
establish  title  to  land  that  one  of  the  two 
complainants  is  entitled  to  an  imdivided 
one-eighth  interest,  and  the  other  to  an  im- 
divid^  two-eighths  interest,  making  to- 
getlier  an  undivided  three-eighths  interest 
in  the  property,  "which  said  interests  are 
of  the  value  of  $4,500  and  upwards  over  and 
above  all  encumbrances,"  is  not  the  legal 
equivalent  of  saying  that  the  interest  of 
either  complainant  was  of  the  value  of  more 
than  the  $3,000  which  must  be  involved  in 
order  to  give  a  Federal  district  court  juris- 
diction. 

(For  other  cases,  see  Pleading,  331-836,  In 
Digest  Sap.  Ct.  1908.] 

[No.  181.] 

Argued  January  17,  1916.    Decided  April  3, 

1916. 

APPEAL  from  the  District  Court  of  the 
United  States  for  the  Eastern  District 
of  Michigan  to  review  a  decree  dismissing, 
for  want  of  jurisdiction,  the  bill  in  a  suit 
to  establish  title  to  land.    Affirmed. 
The  facts  are  stated  in  the  opinion. 

Mr.  XZmll  W.  Snyder  argued  the  cause, 
and,  with  Mr.  Frank  E.  Robson,  filed  a  brief 
for  appellants: 

The  amount  in  controversy  is  sufficient  to 
give  the  district  court  jurisdiction. 

Kilgore  t.  Norman,  119  Fed.  1008; 
Smithers  v.  Smith,  204  U.  a  642,  61  L.  ed. 
•0  L.  ed. 


660,  27  Sup.  Ct.  Rep.  297;  North  American 
Cold  Storage  Co.  ▼.  Chicago,  151  Fed.  120; 
Clay  ▼.  Field,  138  U.  S.  464,  479,  34  L.  ed. 
1044,  1949,  11  Sup.  Ct.  Rep.  419;  Lehigh 
Zinc  &  L  Co.  ▼.  New  Jersey  Zinc  &  L  Co. 
43  Fed.  545;  Woodside  ▼.  Ooeroni,  35 
C.  C.  A.  177,  93  Fed.  1;  Greenfield  ▼.  United 
States  Mortg.  Co.  133  Fed.  788;  Lovett  v. 
Prentice,  44  Fed.  459;  Bates  ▼.  Carpentier, 
98  Fed.  452;  Shields  ▼.  Thomas,  17  How. 
3-6,  15  L.  ed.  93,  94. 

The  limit  of  the  jurisdictional  amount  in 
this  case  is  not  $3,000,  but  $2,000,  for  the 
reason  that  the  statutory  amount  at  the 
time  the  cause  of  action  arose  governs,  and 
not  the  amount  at  the  time  of  bringing  the 
suit. 

Taylor  ▼.  Midland  Valley  R.  Co.  197  Fed. 
323. 

It  has  been  held  that  the  fact  of  a  valid 
defense  to  a  cause  of  action,  although  ap- 
parent on  the  face  of  the  petition,  does  not 
diminish  the  amoimt  that  is  claimed,  nor 
determine  what  is  the  matter  in  dispute; 
for  who  can  say,  in  advance,  that  the  de- 
fense will  be  presented  by  the  defendant,  or, 
if  presented,  sustained  by  the  court? 

Schunk  ▼.  Moline,  M.  &  S.  Co.  147  U.  S. 
500,  37  L.  ed.  255,  13  Sup.  Ct.  Rep.  416; 
Jones  V.  Rowley,  73  Fed.  286. 

It  has  been  several  times  decided  by  this 
court  that  a  suit  cannot  properly  be  dis- 
missed by  a  circuit  court  when  not  involv- 
ing an  amount  sufficient  to  come  within  its 
jurisdiction,  unless  the  facts,  when  made  to 
appear  on  the  record,  create  a  legal  cer- 
tainty of  that  conclusion.  The  mere  denial 
by  affidavit  does  not  deprive  the  court  of 
jurisdiction. 

Put-in-Bay  Waterworks,  Light  &  R.  Co. 
Y.  Ryan,  181  U.  S.  431,  45  L.  ed.  937,  21 
iSup.  Ct.  Rep.  709;  Wetmore  v.  Rymer,  169 
U.  S.  115,  42  L.  ed.  682,  18  Sup.  a.  Rep. 
293. 

Mr.  Lynn  M.  Johnston  argued  the 
cause,  and,  with  Mr.  I*  C.  Stanley,  filed 'a 
brief  for  appellees: 

The  record  does  not  show  the  necessary 
jurisdictional  amount  in  dispute. 

Walter  ▼.  Northeastern  R.  Co.  147  U.  S. 
370,  37  L.  ed.  206,  13  Sup.  Ct.  Rep.  348; 
The  Connemara  (Sinclair  v.  Cooper)  103 
U.  S.  754,  26  L.  ed.  322;  Clay  v.  Field,  138 
U.  S.  479,  34  L.  ed.  1049,  11  Sup.  Ct.  Rep. 
419;  Bowman  ▼.  Chicago  &  N.  W.  R.  Co.  115 
U.  S.  611,  29  L.  ed.  502,  6  Sup.  Ct.  Rep.  192; 
Hilton  Y.  Dickinson,  108  U.  S.  174,  27  L.  ed. 
691,  2  Sup.  Ct.  Rep.  424 ;  €k>rdon  y.  Longest, 
16  Pet.  97,  10  L.  ed.  900;  Auer  y. 
Lombard,  19  C.  C.  A.  72,  33  U.  S. 
App.  438,  72  Fed.  209;  Peper  y.  Fordyce, 
119  U.  S.  469,  30  L.  ed.  435,  7  Sup.  Ct.  Rep. 
287;  Wetherby  y.  Stinson,  10  C.  C.  A.  243, 
52  Slf 


MS-697 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cor.  Temm, 


18  U.  S.  App.  714,  62  Fed.  173;  Henderson  ▼. 
Wadiworth,  115  U.  S.  264,  29  L.  ed.  877,  6 
Sup.  Ct.  Rep.  140;  Gibson  v.  Shufeldt,  122 
U.  S.  30,  30  L.  ed.  1084,  7  Sup.  Ct.  Rep. 
1066;  Bowman  v.  Bowman,  30  Fed.  849; 
Rich  V.  Bray,  2  L.RJ^.  225,  37  Fed.  273; 
King  V.  Wilson,  1  Dill.  556,  Fed.  Cas. 
No.  7,810;  Massa  v.  Cutting,  30  Fed.  1; 
Woodman  v.  Latimer,  2  Fed.  842;  Seaver  v. 
Bigelow,  5  Wall.  208,  18  L.  ed.  595;  Terry 
V.  Hatch  (Terry  v.  Bank  of  Commerce)  93 
U.  S.  44,  23  L.  ed.  796;  Chatfield  y.  Boyle, 
105  U.  S.  231-234,  26  L.  ed.  944,  945;  Bland 
▼.  Fleeman,  29  Fed.  669;  Busey  ▼.  Smith,  67 
Fed.  15;  Walter  v.  Northeastern  R.  Co.  147 
U.  S.  370,  37  L.  ed.  206,  13  Sup.  Ct.  Rep. 
348;  McDaniel  v.  Tray  lor,  196  U.  S.  415,  49 
L.  ed.  533,  25  Sup.  Ct.  Rep.  369. 

The  ipatter  in  dispute  is  determined  by 
the  whole  record. 

Bowman  ▼.  Chicago  ft  N.  W.  R.  Co.  115  U. 
8.  611,  29  L.  ed.  502,  6  Sup.  Ct.  Rep.  192; 
Hilton  V.  Dickinson,  108  U.  S.  174,  27  L.  ed. 
691,  2  Sup.  Ct.  Rep.  424;  Gordon  v.  Longest, 
16  Pet.  97,  10  L.  ed.  900;  Lehigh  Min.  & 
Mfg.  Co.  V.  Kelly,  160  U.  S.  327,  40  L.  ed. 
444,  16  Sup.  Ct.  Rep.  307;  Bowman  v.  Bow- 
man, 30  Fed.  849. 

Mr.  Justice  Pitney  delivered  the  opin- 
ion of  the  court: 

This  is  a  direct  appeal  under  §  238,  Judi- 
cial Code  (36  Stat,  at  L.  1157,  chap.  231, 
Comp.  Stat.  1913,  |  1215),  from  an  order 
dismissing  a  bill  of  complaint  for  want  of 
Jurisdiction.  There  are  two  complainants, 
and  the  jurisdictional  questions  certified 
are,  ( 1 )  whether  the  amount  in  controversy 
ii  aufflcient  to  give  the  court  jurisdiction, 
and  (2)  whether  the  parties  are  oollusive- 
ly  joined. 

It  is  averred  in  the  bill  that  complainants 
and  defendants  are  the  children  of  one 
Charles  T.  Pinel,  a  resident  of  the  state  of 
Michigan,  who  died  June  26,  1888,  possessed 
in  fee  simple  of  a  tract  of  land  situate  in 
that  state,  and  leaving  a  last  will  and  testa- 
ment which  was  afterwards  duly  admitted 
to  probate  there,  by  which  he  left  his  en- 
tire estate  to  the  defendants,  failing  to 
provide  for  complainants,  who  are  two  of 
his  children,  and  for  another  child,  Charles 
W.  Pinel;  that  their. omission  from  the  will 
was  not  intentional  on  the  part  of  the 
•aid  Charles  T.  Pinel,  but  was  made  by  a 
mistake  or  accident;  that  the  laws  of  the 
state  of  Michigan  (Comp.  Laws  1897,  | 
9286)  [506]  provide  that  when  any  testator 
■hall  omit  to  provide  in  his  will  for  any  of 
hit  children,  and  it  shall  appear  that  such 
omission  was  not  intentional  and  was  made 
by  mistake  or  accident,  such  child  shall 
haTS  the  same  share  in  the  estate  of  the 
tettMtor  as  if  he  had  died  intestate;  that 
S10 


by  virtue  of  the  statute  complainants  and 
the  said  Charles  W.  Pinel  were  severally 
entitled  to  the  same  shares  in  the  estate  of 
Charles  T.  Pinel,  deceased,  as  if  he  had  died 
intestate;  that  testator  left  a  widow  and 
nine  children,  one  of  whom  is  since  dect^ased; 
that  after  testator's  death  Charles  W.  Pinel 
conveyed  all  his  interest  in  the  estate  to 
the  complainant  Sarah  Slyfield;  and  that» 
by  reason  of  the  premises,  "complainant 
Herman  Pinel  is  entitled  to  an  undivided 
one-eighth  interest,  and  complainant  Sarah 
SlyfieJd  to  an  undivided  two-eighths  interest, 
or  in  all  both  complainants  together  to  an 
undivided  three-eighths  interest  in  the  afore- 
said property,  which  said  interests  are  of 
the  value  of  $4,50U  and  upwards  over  and 
above  all  encumbrances."  The  prayer  is, 
in  effect,  that  the  title  of  complainants  to 
an  undivided  three-eighths  interest  in  the 
land  may  be  established. 

The  settled  rule  is  that  when  two  or  more 
plaintiffs  having  separate  and  distinct  de- 
mands unite  in  a  single  suit,  it  is  essential 
that  the  demand  of  each  be  of  the  requisite 
jurisdictional  amount;  but  when  several 
plaintiffs  unite  to  enforce  a  single  title  or 
right  in  which  they  have  a  common  and 
undivided  interest,  it  is  enough  if  their  in- 
terests collectively  equal  the  jurisdictional 
amount.  Clay  v.  Field,  138  U.  S.  464,  479, 
34  L.  ed.  1044,  1049,  11  Sup.  Ct.  Rep.  419; 
Troy  Bank  v.  Q.  A.  Whitehead  k  Co.  222 
U.  S.  39,  56  L.  ed.  81,  32  Sup.  Ct.  Rep. 
9.  This  case  comes  within  the  former  class, 
since  the  title  of  each  complainant  is  sepa- 
rate and  distinct  from  that  of  the  other;  it 
being  evident  that  the  testator's  omission  to 
provide  for  one  of  his  children  by  will,  based 
upon  mistake  or  accident,  is  independent 
of  the  question  whether  a  like  mistake  was 
made  with  respect  to  another  child. 

[507]  The  action  having  been  brought  in 
the  district  court  under  the  first  paragraph 
of  I  24,  Judicial  Code  (act  of  March  3, 1011, 
chap.  231,  36  Stat,  at  L.  1087,  1091,  Comp. 
Stat.  1913,  S  991),  on  the  ground  of  diver- 
sity of  citizenship,  it  is  necessary  that  the 
matter  in  controversy  exceed  the  sum  or 
value  of  $3,000,  and  that  this  shall  appear 
by  distinct  averment  upon  the  face  of  the 
bill,  or  otherwise  from  the  proofs.  The 
averment  that  complainant  Pinel  is  entitled 
to  an  undivided  one-eighth  interest,  and 
complainant  Slyfield  to  an  undivided  two- 
eighths  interest,  making  together  an  undi- 
vided three-eighths  interest  in  the  property 
in  question,  "which  said  interests  are  of 
the  value  of  $4,500  and  upwards  over  and 
above  all  encumbrances,"  is  not  the  legal 
equivalent  of  paying  that  the  interest  of 
either  complainant  is  of  the  value  of  more 
than  $3,000.  It  is  not  neoessarily  to  be 
inferred  that  the  value  of  an  nndividsd  tvo- 

940  U.  8. 


1916. 


UTERHART  v.  UNITED  STAISS. 


597-698 


eighths  if  two-thirds  of  the  value  of  an  un- 
divided three-eightht.  The  probable  cost 
and  difficulty  of  partition,  and  other  like 
eonaiderations,  prevent  the  application  of 
a  mere  rule  of  proportion.  Affidavits  were 
submitted  pro  and  con  upon  the  motion  to 
dismiss,  but  th^  do  not  help  matters.  Cknn- 
plainants  submitted  five  affidavits,  all  in  a 
stereotyped  form  and  based  on  information 
and  belief,  stating  that  the  value  of  the 
farm  as  a  whole  is  $16,000  and  upwards, 
but  saying  nothing  about  encumbrances, 
nor  stating  distinoUy  the  value  of  an  im- 
divided  one-eighth  or  two-eighths  interest. 
Defendants  submitted  four  affidavits  valu- 
ing the  farm  at  not  more  than  $9,000  if 
free  and  clear  of  encumbrances,  but  showing 
it  encumbered  to  an  amount  upwards  of 
$3,600.  Were  we  to  accept  the  highest  valu- 
ation stated  by  anybody  ($16,000)  and  de- 
duct from  it  the  amount  of  undisputed 
encumbrances,  we  should  have  a  net  valua- 
tion less  than  $11,600.  Assuming  undivid- 
ed shares  to  be  of  proportionate  value,  a 
two-eighths  interest  would  be  worth  less 
than  $3,000. 

Upon  the  whole,  it  does  not  satisfactorily 
appear  that  [598]  the  interest  claimed  by 
either  complainant  is  sufficient  in  value  to 
confer  jurisdiction,  and  hence  the  bill  was 
properly  dismissed.  It  is  obvious  that,  in  the 
view  we  take  of  the  case,  the  question  of 
collusive  joinder  becomes  immaterial. 

Decree  affirmed. 


HENKY  A.  UTERHART  and  Emil  Heuel, 
as  Trustees  under  the  Last  Will  and  Tes- 
tament of.  Conrad  Stein,  Deceased,  Appts., 

V. 

UNITED  STATES. 

(See  S.  0.  Reporter's  ed.  698-606.) 

FMeiml  anooesrton  tax  —  vested  or  con- 
tingent Interest  —  refunding* 

The  interests  which  the  residuary 
legatees  took  by  a  will  by  which,  as  con- 
strued by  a  state  court  of  competent  juris- 
diction, the  testator  directed  that  the  whole 
of  his  residuary  estate  should,  "so  far  as 
necessary,"  be  applied  to  the  support  and 

Note. — On  repeal  of  statute  imposing 
succession  tax  as  affecting  estate  of  one 
who  died  before  the  repealing  act  took  effect 
— see  note  to  Trippet  v.  State,  8  LJtJL 
(N.8.)  1210. 

As  to  taxes  on  succession  and  collateral 
inheritance,  generally — see  notes  to  Re 
Howe,  2  L.RJL  826;  Wallace  v.  Myers,  4 
LJtJk.  171;  Com.  v.  Ferguson,  10  LJLA. 
240;  Re  Romaine,  12  L.RJL  401;  Hagoun  v. 
Illinois  Trust  k  Sav.  Bank,  42  L.  ed.  U.  8. 
1037,  and  State  ex  reL  Ise  v.  Cline,  60 
LJLA.(N.S.)  9^1. 
•0  li.  ed. 


education  of  his  four  minor  children  during 
their  minorities,  if  the  youngest  child  sur- 
vived that  period,  and  that  the  trustees 
should  pay  '*so  much"  of  the  rents  and  in- 
come for  that  purpose  "as  riiall  be  reason- 
able and  proper,"  and  bequeathed  the  resi- 
due, upon  the  youngest  child  attaining 
maiority  or  sooner  dying,  to  seven  named 
children  in  equal  ^shares,  empowering  the 
trustees  to  pay  over  by  way  of  advance  to 
the  seven  in  equal  amounts  or  shares  "so 
much  of  the  capital  of  the  testator's  resid- 
ual^ personal  estate  or  the  income  thereof 
as  in  their  judgment  they  may  deem  rea- 
sonable," and  providing  that  they  should 
not  be  compelled  to  make  distribution  of 
the  principal  of  the  estate  or  any  part 
thereof  "except  in  the  exercise  of  tiieir  rea- 
sonable discretion"  until  the  said  youngest 
child  attained  his  majority, — ^were  con- 
tingent, and  not  vested  4>rior  to  Julv  1, 
1902,  within  the  meaning  of  the  provision 
of  the  act  of  June  27,  1002  (32  Stat  at  L. 
406,  chap.  1160),  |  3,  for  the  refunding  of 
succession  taxes  collected  on  contingent 
beneficial  interests  not  so  vested,  where  said 
ypnngest  child  had  not  attained  the  age  of 
twenty-one  years  on  that  day— except  with 
respect  to  such  amounts  as  were  actually 
advanced  out  of  the  trust  funds  by  the  trus- 
tees in.  the  exercise  of  their  discretion, 
prior  to  that  date. 

[For  other  cases,  see  Internal  Bevenne,  III.  h» 
in  Digest  Sup.  Ct  1908.] 

[No.  214.] 

Argued  January  24,  1916.     Decided  April 

3,  1916. 

APPEAL  from  the  Court  of  Claims  to  re- 
view a  judgment  dismissing  a  petition 
for  the  refund  of  Federal  succession  taxes. 
Reversed  and  remanded,  with  direction  to 
enter  judgment  in  favor  of  claimants. 
See  same  case  below,  49  Ct  CI.  709. 
The  facts  are  stated  in  the  opinion. 

Mr.  H.  T.  Newcomb  argued  the  cause» 
and,  with  Mr.  Morris  F.  Frey,  filed  a  brief 
for  appellants: 

The  judiciaf  construction  of  the  will  binds 
the  government;  in  denying  this  the  govern- 
ment is  making  a  collateral  atta^  upon  the 
judgment  of  a  court  of  competent  jurisdic- 
tion, this  attack  being  supported  by  noth- 
ing except  suggestions  of  error. 

Orr  V.  Oilman,  183  U.  S.  278,  288,  46  L.  ed. 
196,  202,  22  Sup.  Ct.  Rep.  213;  Chanler  v. 
Kelsey,  206  U.  S.  466,  477,  61  L.  ed..  882, 
888,  27  Sup.  Ct.  Rep.  660;  Ingersoll  v. 
Coram,  211  U.  8.  336,  63  L.  ed.  208,  29  Supw 
Ct  Rep.  92;  Cooper  v.  Reynolds,  10  WalL 
308,  19  L.  ed.  931;  Comett  v.  Williams,  87 
U.  S.  226,  22  L.  ed.  264;  Laing  v.  Rign^, 
160  U.  S.  631,  642,  40  L.  ed.  626,  628,  16 

I  Sup.  Ct.  Rep.  366;  Manson  v.  Duncanson, 
166  U.  S.  633,  646,  647,  41  L.  ed.  1106,  1109, 

'  1110, 17  Sup.  Ct  Rap.  647. 

819 


001                             SUPREME  COURT  OF  THE  UNITED  STATES.               Ocr.  l^EUC, 

The  universal  test  of  the  right  of  the  vised  Rep.  277,  Re  Williams  [1007]  1  Ch. 

government  to  have  any  tax  assessed  was  180,  76  L.  J.  Ch.  N.  S.  41,  06  L.  T.  N.  S. 

that,  with  respect  to  personal  property  pass-  760;  Re  Gossling  [1003]  1  Ch.  448,  72  L.  J. 

ing  by  will  or  by  intestate  succession,  from  Ch.  N.  S.  433,  88  L.  T.  N.  S.  270;  Roper, 

one  dying  on  or  after  June  13,  1808,  there  Legacies,  2d  Am.  ed.  p.  653;  Jarman,  Wills, 

should  be  a  right  of  succession  which,  prior  6th   ed.   p.   740;    Bigelow,   Bills,   Notes  ft 

to  July  1,  1002,  should  ripen  into  an  abso-  Cheques,  pp.  704, 706 ;  Theobald,  Wills,  Cana- 

lute  right  of  immediate  possession  or  enjoy-  dian  ed.  pp.  582,  588;  Cropley  v.  Cooper,  10 

ment.  Wall.  167,  22  L.  ed.  100 ;  Potter  ▼.  Couch,  141 

Vanderbilt  v.  Eidman,  106  U.  S.  480,  40  U.  S.  206,  313,  314,  36  L.  ed.  721,  731,  11 

L.  ed.  563,  25  Sup.  Ct.  Rep.  331;  United  Sup.  Ct.  Rep.  1006;  Johnson  v.  Washington 

States  v.  Fidelity  Trust  Co.  222  U.  S.  158,  Loan  &  T.  Co.  224  U.  S.  224,  237,  238,  56 

66  L.  ed.  137,  32  Sup.  Ct.  Rep.  60;  United  L.  ed.  741,  745,  746,  32  Sup.  Ct.  Rep.  421; 

States  V.  Jones,  236  U.  S.  106,  60  L.  ed.  488,  Shelton  v.  King,  220  U.  S.  00,  03«  04,  57 

35  Sup.  Ct.  Rep.  261,  Ann.  Cas.  1016A,  316;  L.  ed.   1086,  1087,  1088,  33  Sup.  Ct.  Rep. 

McCoach  v.  Pratt,  236  U.  S.  562,  60  L.  ed.  686;    Sanford  v.  Lackland,  2  Dill.  6,  Fed. 

720,  35  Sup.  Ct.  Rep.  421;  Hertz  ▼.  Wood-  Cas.  No.  12,312;  Traver  v.  Schell,  20  N.  Y. 

man,  218  U.  S.  205,  210,  54  L.  ed.  1001, 1007,  01;    Lovett    v.    Gillender,   35    N.    Y.    617; 

30  Sup.  Ct.  Rep.  621.  Manice  v.  Manice,  43  N.  Y.  303;  Warner  v. 

The  rule  that  such  discretionary  power  as  Durant,  76  N.  Y.  133;  Smith  v.  Edwards,  88 

that  which  Conrad  Stein  gave  to  his  trus-  N.  Y.  02;  Goebel  v.  Wolf,  113  N.  Y.  405,  10 

tees  is  not  to  be  taken  away  or  controlled,  Am.  St.  Rep.  464,  21  N.  E.  388;  Burrill  v. 

while    exercised    in    good    faith,    is    firmly  Shell,  2  Barb.  457;   Re  Cogswell,  4  Dem. 

established.    So,  also,  is  the  rule  that  leg^-  248. 

tees,  whose  interests  are   subject  to  such  A  bequest  in  the  form  of  a  direction  to 

discretionary    power,    take    nothing    save  pay  at  a   future  period  vests   in   interest 

when  it  is  exercised  and  to  the  extent  that  immediately,  if  the  payment  be  postponed 

it  is  exercised.  for  the  convenience  of  the  estate  or  to  let 

2  Sugden,  Powers,  p.  161,  3d  Am.  ed;  2  in  some  other  interest.     In  all  such  cases 

Perry,  Trusts,  §  508,  p.  817 ;  1  Jarman,  Wills,  it  is  presumed  that  the  testator  postponed 

6th  Am.  ed.  p.  308;  Hill,  Trustees,  4th  Am.  the    time   of   enjoyment   by   the    ultimate 

ed.  767;   Keyser  ▼.  Mitchell,  67   Pa.  473;  legatee  for  the  purpose  of  the  prior  devise 

Buchar's    Estate,    225    Pa.   427,   25    L.RA.  or  bequest. 

(N.  S.)  421,  74  Atl.  237;  Lyman  v.  Parsons,  Johnson  v.   Washington  Loan  k  T.  Co. 

26  Conn.  403;  Dandridge  v.  Washington,  2  224  U.  S.  224,  56  L.  ed.  741,  32  Sup.  a. 

Pet.  370,  7  L.  ed.  454;  Nichols  v.  Eaton,  01  Rep.  421;  McArthur  v.  Scott,  113  U.  S.  340, 

U.  S.  716,  23  L.  ed.  254.  378,  380,  28  L.  ed.  1016,  1026,  1027,  6  Sup. 

The  tax  could  lawfully  have  been  collected  Ct.  Rep.  652;  Cropley  v.  Cooper,  10  Wall 

upon  amounts  awarded  to  these  legatees,  in  167,  22  L.  ed.  100. 

the  exercise  of  the  discretionary  power  pro-  Unless  some  impossible  standard  of  phy- 

▼ided  for  in  the  will,  only.  sical  control  of  personal  property  is  to  be 

Ryle  V.  United  States,  230  U.  S.  658,  ante,  adopted,  the  interest  of  these  legatees  in 
480,  36  Sup.  Ct.  Rep.  221 ;  Muenter  v.  Union  the  whole  residuary  esUte  must  be  con- 
Trust  Co.  115  C.  C.  A.  300,  106  Fed.  480;  sidered  to  have  vested  in  possession  prior 
Hanson,  Death  Duties,  6th  ed.  p.  36;  Atty.  to  July  1,  1002.  The  case  is  really  governed 
Gen.  ▼.  Wade  [1010]  1  K.  B.  703,  70  L.  J.  by  United  Stetes  v.  Fidelity  Trust  Qo.  222 
K.  B.  560,  102  L.  T.  N.  S.  404.  U.  S.  158,  56  L.  ed.  137,  32  Sup.  Ct.  Rep.  60. 

Assistant  Attorney  General  Wallace  ar-        ,,      ^    «.•       •»«*-.       j  i: ^   au^  -.*!« 

_    ,  .,                     /     ...    ,,     T»7'ii'        nt  Mr.  Justice  Pitney  delivered  the  opm- 

gued  the  cause,  and,  with  Mr.  William  C.  j^^  ^^  ^^  ^^^^^,        '                              ^ 

Herron  filed  a  brief  for  defendant  in  error:  ^his   was  a   suit   to   recover    succesaion 

The  New  York  decree  either  (a)  gave  the  ^^^       .^  ^     appellanto  under  the  act  of 

residuary  esUte  absolutely  to  the  diildren  j^^^  ^g  ^g^g  ^^^       ^^g  3^  g^^^  ^^  j^  ^^^ 

by  name,  share  and  share  alike   postponing  ^^   ^        gUt.  1013,  §  6144),  on  account 

payment  merely  until  Carl  died  or  reached  ^^  interests  in  personal  property  passing  to 

majority;  or  (b)  gave  the  residuary  estate  ^^   residuary  legatees   under  the  will  of 

absolutely  to  the  children,  share  and  share  Conrad   Stein,    deceased.     It   was   brought 

alike,  when  Carl  died  or  attained  majority,  ^^^^  ^jj^  j^^  ^f  j^^e  27,  1002  (chap.  1160, 

meantime  giving  each  child  the  income  of  §  3,  32  SUt.  at  L.  406),  which  provides  for 

his  or  her  proportionate  share.  refunding  "so  much  of  said  tax  as  may  have 

In  either   case  the  authorities,  without  been  collected  on  contingent  beneflcial  in- 

dissent,  so  far  as  we  are  aware,  hold  the  terests  which  shall  not  have  become  vested 

interest  vested.  1  prior  to  July  first,  nineteen  hundred  and 

Embsod  v.  GrtLbam,  6  Ves.  Jr.  230,  5  Re-  *  two."    The  testator  was  domiciled  in  the 

SS0  %M  V.  S. 


1015. 


UTERHART  v.  UNITED  STATES. 


601-604 


state  of  New  York,  and  the  will  was  pro- 
bated and  appellants  were  appointed  exec- 
utors and  trustees  in  that  jurisdiction. 
The  residuary  legatees  were  seven  of  the 
nine  children  of  testator,  and  at  the  time 
of  his  death  on  April  6,  1900,  several  of 
them  were  minors.  All  of  the  seven  were 
living  on  July  I,  1002.  The  youngest,  Carl 
Stein,  had  not  attained  the  age  of  twenty- 
one  years  on  that  date.  The  residuary  es- 
tate amounted  to  more  than  $1,000,000,  and 
the  taxes  collected  with  respect  to  it  aggre- 
gated $17,130.82,  being  based  upon  the 
theory  that  each  of  these  legatees  took  a 
vested  seventh  interest  at  the  death  of  the 
testator.  If  the  taxes  had  been  assessed  on 
the  advances  actually  made  by  appellants 
as  executors  and  trustees  for  the  benefit  of 
the  residuary  legatees  prior  to  July  1, 
1002,  they  would  have  amounted  to  only 
$746.12. 

One  of  the  clauses  of  the  will  contained 
words  bequeathing  the  residuary  estate 
outright  to  the  seven  children  in  equal 
shares;  but  this  was  qualified  by  inconsist- 
ent language  in  other  clauses,  and  some  time 
prior  to  January  16, 1002,  [602]  one  of  t^e 
executors  brought  suit  in  the  supreme  court 
of  the  state  of  New  York  against  his  co- 
executors  and  the  beneficiaries  for  a  judi- 
cial construction  of  the  will,  and  a  decree 
was  made  on  the  date  mentioned,  of  which 
the  pertinent  clauses  are  set  forth  in  the 
margin.l  [603]  Testator's  personalty 
passed  under  the  will,  and  the  executors  and 
trustees  proceeded  imder  and  complied 
strictly  with  the  directions  contained  in  it, 
as  interpreted  and  construed  by  the  decree. 

The  court  of  claims  held  (40  Ct.  CI.  700) 
that  the  interest  bequeathed  by  the  will  to 
the  residuary  legatees  was  a  vested  estate, 
and  not  a  contingent  beneficial  interest, 
citing  Vanderbilt  v.  Eidman,  106  U.  S.  480, 
40  L.  ed.  563,  25  Sup.  Ct.  Rep.  331,  and 


United  States  ▼.  Fidelity  Trust  Co.  222  U. 
S.  158,  56  L.  ed.  137,  32  Sup.  Ct  Rep.  50. 

It  is  very  properly  admitted  by  the  gov- 
ernment that  the  New  York  decree  is  in 
this  proceeding  binding  with  respect  to  the 
meaning  and  effect  of  the  will.  The  right 
to  succeed  to  the  property  of  the  decedent 
depends  upon  and  is  regulated  by  state  law 
(Knowlton  v.  Moore,  178  U.  S.  41,  57,  44 
L.  ed.  060,  076,  20  Sup.  Ct.  Rep.  747),  and 
it  is  obvious  that  a  judicial  constructum 
of  the  will  by  a  state  court  of  competent 
jurisdiction  determines  not  only  legally  but 
practically  the  extent  and  character  of  the 
interests  taken  by  the  legatees. 

It  is,  however,  contended  that  the  wilU 
as  thus  construed,  either  gave  the  residuary 
estate  absolutely  to  the  children  by  name» 
share  and  share  alike,  postponing  payment 
[604]  merely  until  Carl  died  or  reached 
majority,  or  that  it  gave  the  estate 
to  them  absolutely  when  Carl  died  or 
attained  majority,  meanwhile  giving  to 
each  child  the  income  of  his  or  her 
proportionate  share.  With  this  view 
we  cannot  concur.  The  decree  declares 
the  true  construction  to  be  "that  the  whole 
of  his  residuary  estate,  real  and  personal, 
should,  80  far  as  neceeaary,  be  applied  to 
the  support  and  education  of  his  min6r 
children,  Josephine  Stein,  Paula  Stein,  Ella 
Stein,  and  Carl  Stein,  during  the  minorities 
if  Carl  Stein  survive  such  period."  Then 
follows  a  clause  to  the  effect  that  the  trus- 
tees should  apply  the  income  to  the  support 
and  education  of  the  minor  children  until 
they  respectively  attain  the  age  of  twenty- 
one  years,  if  Carl  survive  such  period, 
and  that  on  his  attaining  the  age  of  twenty- 
one  or  sooner  dying  the  testator  gave,  de- 
vised, and  bequeathed  the  residue  to  the 
seven  named  (including  Carl)  in  equal 
shares.  A  subsequent  clause  directs  the 
executors  and  trustees  "to  apply  eo  mueh 


1  ''It  is  further  ordered,  adjudged,  and  de- 
creed: That  it  was  the  intention  of  the 
said  Conrad  Stein,  and  such  is  the  true 
meaning  and  construction  of  his  will,  that 
the  whole  of  his  residuary  estate,  real  and 
personal,  should,  so  far  as  necessary,  be  ap- 
plied to  the  support  and  education  of  his 
minor  children,  Josephine  Stein,  Paula 
Stein,  Ella  Stein  and  Carl  Stein  during  the 
minorities  if  Carl  Stein  survive  such  period. 
To  that  end  he  gave,  devised,  and  be- 
queathed to  Emil  Heuel  and  Alexander 
Stein,  his  executors  and  trustees,  and  to 
Josephine  Stein,  his  executrix  and  trustee, 
all  his  residuary  estate,  both  real  and  per- 
sonal, upon  trust  to  receive  the  rents,  is- 
sues, and  profits  and  income  thereof  until 
his  son  Carl  Stein  attains  the  age  of  twenty- 
one  years,  and  to  apply  the  same  to  the 
support  and  education  of  the  testator's  said 
minor  children,  Josephine  Stein,  Paula 
Stein,  Ella  Stein,  and  Carl  Stein,  until  they 
•0  li.  ed. 


respectively  attain  the  age  of  twenty-one 
years,  if  Carl  Stein  survive  such  period, 
aud  on  Carl  Stein  attaining,  the  age  of 
twenty-one  years,  or  sooner  dying,  the  said 
testator  gave,  devised,  and  bequeathed  the 
said  residuary  estate,  both  real  and  per- 
sonal, to  his  children  Charlotte  Trueben- 
bach,  Wilhelmina  Schneider,  Elizabeth 
Heuel,  Josephine  Stein,  Paula  Stein,  Ella 
Stein,  and  Carl  Stein  in  equal  shares  and 
parts. 

"The  said  executors  and  executrix  and 
trustees  are  empowered  by  the  said  will  to 
let  and  lease  the  said  residuary  real  estate- 
and  to  make  such  repairs  and  improvements 
upon  said  residuary  real  estate  as  in  their 
judgment  may  be  necessary.  After  the  pay- 
ment of  taxes  and  other  expenses  of  the 
administration  of  the  estate,  they  are  to 
apply  so  much  of  the  rents  of  the  real  es- 
tate, and  of  the  income  of  the  personal  es- 
tate, as  shall  be  reasonable  and  proper,  to 


604,606 


SUPREME  CX)URT  OP  THE  UNITED  STATES. 


Oct.  Tkbm, 


of  the  rents  of  the  real  estate,  and  of  the 
income  of  the  personal  estate  m  thall  he 
reoaonabU  and  proper,  to  the  support  and 
education  of  the  testator's  said  minor  chil- 
dren during  their  respective  minorities  as 
aforesaid."  They  are  empowered,  during 
the  minority  of  the  minor  children,  "to  pay 
over  by  way  of  udvance"  to  the  seven,  "in 
equal  amounts  or  shares,  §o  much  of  the 
capital  of  the  testator's  residuary  personal 
estate,  or  the  income  thereof,  a§  im  their 
judgment  they  may  deem  reaeomable  so  to 
pay  over."  And,  finally,  "the  said  executors 
and  executrix  and  trustees  shall  not  be  com- 
pelled to  make  distribution  of  the  principal 
of  the  estate  or  any  part  thereof,  exoept  in 
the  exerciee  of  their  reasonable  dieoretionp 
until  the  said  Carl  Stein  attains  the  age  of 
twenty-one  years." 

It  will  be  observed  not  only  that  the  trust 
continued  until  the  youngest  child  reached 
the  age  of  twenty-one,  but  that  no  one  of 
the  seven  was  entitled  in  the  meantime  to 
receive  anything  of  either  principal  or  in- 
come except  [605]  on  the  affirmative  exer- 
cise of  a  discretion  conferred  upon  the  exec- 
utors and  trustees. 

This  having  been  authoritatively  decided 
to  be  the  true  effect  and  meaning  of  the  will, 
we  are  of  opinion  that  the  interests  to  which 
the  residuary  legatees  succeeded  were  con- 
tingent, and  not  vested  prior  to  July  1, 
1002,  within  the  meaning  of  the  refunding 
act  as  construed  in  previous  decisions  of 
this  court  upon  the  subject  (Vanderbilt  v. 
Eidman,  196  U.  S.  480,  600,  40  L.  ed.  563, 
570,  25  Sup.  Ct.  Rep.  331;  United  SUtes 
Y.  Jones,  236  U.  S.  106,  111,  50  L.  ed.  488, 
400,  35  Sup.  Ct.  Rep.  261;  McCoach  v. 
Pratt,  236  U.  S.  562,  50  L.  ed.  720,  35  Sup. 
Ct.  Rep.  421),  except  with  respect  to  such 
amounts  as  were  actually  paid  out  of  the 
trust  fund  by  the  trustees  prior  to  that 
date,  in  the  exercise  of  their  discretion; 


the  proper  tax  upon  which,  according  to 
the  findings,  would  have  been  $745.12. 

The  judgment  will  be  reversed,  and  the 
cause  remanded,  with  direction  to  enter 
judgment  in  favor  of  appellants  for  the 
tax  collected  in  excess  of  that  amount  upon 
the  interests  of  the  residuary  legatees. 

Judgment  reversed. 

Mr.  Justice  McReynolds  took  no  part 
in  the  consideration  or  decision  of  this  case. 


UNITED  STATES  OF  AMERICA,  Plff.  in 

Err., 

V. 

UNION    MANUFACTURING    COMPANY 
and  J.  T.  Prince. 

(See  &  C.  Reporter's  ed.  605-611.) 

Federal  courts  «  proper  district  for 
suit  «  criminal  prosecutions  «  false 
representations  by  consignee. 

1.  This  offense  of  fraudulently  mis- 
representing the  weight  of  certain  inter- 
state shipments  of  lumber  for  the  pur 
pose  of  obtaining  or  attempting  to  obtain 
the  transportation  of  the  property  at  less 
than  the  established  rates,  which  is  con- 
demned by  the  act  of  February  4,  1887  (24 
Stat,  at  L.  370,  chap.  104),  §  10,  as  amend- 
ed by  the  act  of  June  18,  1010  (36  Stat, 
at  L.  540,  chap.  300,  Comp.  Stat.  1013, 
§  8574),  may,  when  committed  by  the  con- 
signee, be  prosecuted  in  the  Federal  dis- 
trict in  which  the  place  of  destination  is 
situated  as  having  been  "wholly  or  in  part 
committed" .in  that  district,  within  the 
meaning  of  that  section;  and  the  fact  that 
the  consignee  was  also  the  consignor  is  of 
no  significance. 

[For  other  cases,  see  Courts,  070-007,  In  Di- 
gest Sup.  Ct.  1008.] 

NoTB. — On  proper  Federal  district  for 
suit — see  note  to  Roberts  v.  Lewis,  36  L.  ed. 
U.  S.  570. 


the  support  and  education  of  the  testator's 
said  minor  children  during  their  respective 
minorities  as  aforesaid.  Ihe  rents  of  the 
real  estate  are  to  be  applied  first  to  the 
uses  aforesaid,  and  after  makins  such  ap- 
plication the  said  executors  and  executrix 
and  trustees  are,  from  time  to  time,  when- 
ever tliey  shall  judge  proper,  to  divide  any 
surplus  rents  smong  the  said  testator's  said 
children,  Charlotte  Truebenbach,  Wilhelmina 
Schneider,  EllKaheth  Heuel,  Josephine  Stein, 
Paula  Stein,  Ella  Stein,  and  Carl  Stein  in 
equal  proportions,  the  shares  of  any  minor 
child  to  he  paid  to  the  guardian  of  that 
child's  estate. 

"The  said  executors  and  executrix  and 
trustees  are  further  empowered  from  time 
to  time  during  the' minor itv  of  the  said 
minor  children  to  pay  over  by  wav  of  ad- 
vance to  the  said  Charlotte,  Wilhelmina, 
Elizabeth,  Josephine,  Paula,  Ella,  and  Carl, 
In  equal  amounts  or  shares,  so  much  of  the 
•92 


capital  of  the  testator's  residuary  personal 
estate,  or  the  income  thereof,  as  in  their 
judgment  they  may  deem  reasonable  so  to 
pa^  over,  the  shares  going  to  any  minor 
children  to  be  paid  to  the  guardian  of  that 
child's  estate. 

"It  is  further  oi^ered,  adjudged,  and  de- 
creed: That  the  skid  executors  and  execu- 
trix are  authorized  and  empowered,  after 
Carl  Stein  shall  have  attained  the  age  of 
twenty-one  years,  to  sell  and  convey  from 
time  to  time  all  or  any  part  of  the  trata- 
tor's  residuary  real  estate. 

"And  it  is  further  adjudged  and  decreed: 
That  the  said  executors  and  executrix  and 
trustees  shall  not  be  compelled  to  make  dis- 
tribution of  the  principal  of  the  estate  or 
any  part  thereof,  except  in  the  exercise  of 
their  reasonable  discretion,  until  the  said 
Carl  Stein  attains  the  age  of  twenty-one 
years," 

940  V.  8. 


1915. 


UNITED  STATES  v.  UNION  MFG.  CX). 


006-908 


[No.  628.] 


Otfkrlers  —  obtaining  transporUtion  at  circuit  court  of  appeals  for  the  sixth  circuit 

less  than  established  rates  —  fraudu-  in  Davis  ▼.  United  States,  43  C.  C.  A.  448» 

lent  misrepresentation  by  consignee.  jo4  Fed.  136,  requires  the  prosecution  to 

2.  A  consignee  is  none  the  less  guilty  ^j^^  ^^^  ^  ^Yie  district  where  the.  goods 

iS;rte'?r4tS"i^1^.thrS!  t  -  ""ed  b,  th.  -.ipper.  «.,  «.,  aelWery 

Ublished  rates,  contrary  to  the  prohibition  '^   transportation    Ukes   place,   which    in 

of  the  act  of  February  4,  1887  (24  Stat,  at  this  instance  was  not  in  the  southern  dis- 

I*  379,  chap.   104),  g   10,  as  amended  by  trict  of  Florida,  but  in  Georgia, 

the  act  of  June  18,  1910   (36  Stat,  at  L.  The  indictment  contains  ten  counts,  charg- 

649,  chap.  309,  Comp.  SUt.  1913,  §  8574),  .       ^  ^         diflferent  oflfenses.     1  hey  are 

where     he     fraudulently     understates     the  ,?.      .     .    '          ,          _             «  *i.    ii    * 

weight    of   the    shipment,    with    the    effect  ^'^^  "^  ^«'™'  ^^  »  summary  of  the  first 

of  influencing  the  adjustment  of  the  freight,  will    suffice.      It    recites    that    the    South 

because  the  transportation  had  been  com-  Georgia  Railway  Company  was  a  C9mmon 

Kleted  and  the  shipment  delivered  to  him  carrier  by  rail,  engaged  in  the  interstate 

frfore  the  fraudulent  representations  were  transportation  of  yellow   pine  lumber  for 

■**de.                                         „   ^   .   .    ^.  hire  from  Baden,  in  the  state  of  Georgia,  to 

**!?e'.r8Sp.'cri9"u  sSroj"*        ^    •  Greenville,  in  the  K>uthen>  dietrict  of  Flor- 

ida,  and  had  filed  and  published  schedules 
and  tariffs  showing  the  rate  and  charge  for 
transportation  of  such  lumber  under  6 
inches  in  thickness  in  carload  lots  between 

Argued  February  28,  1916.     Decided  April  t^oae  pointo  to  be  $7  for  each  carload  lot 

S,  l^"^^'  of  the  weight  of  24,000  pounds,  excess  in 

1*^  «^^^«  A     ^^     *>.  A  1  X  /^      X     *  xt.  proportion;  that  the  schedules  and  tariffs 

^r.^^^?-  **  *?*  ?'•*;''*.?'""*  »'*?'!  further    provided    th.t    when    the    actual 

United  States  for  the  Southern  Dwtrict  ^^j  ^^  ,,  ,  shipment  was  not  aacertained 

of  Florida  to  review  a  judgment  sustaining  ,j      j^j  ^f  shipment  or  at  destination  or 

a  demurrer  to  an  indictment  charging  the  j^   ^^^^i^  t,,,  j,,igtt  ^1,,,^^,  ^„u,j  be 

eonaignee  of  an    interstate  shipment  with  ^aged  upon  an  estimated  weight  of  6,000 

fraudulently  mureprescnting  the  weight  in  ^^^s  for  each  1.000  feet;  that  the  Union 

order  to  secure  the  transportation  at  less  Manufacturing    Company    was    and    U    a 

fhan  the  carrier's  established  rates.    Revers-  corporation  engaged  in  shipping  said  prop- 

ed  and  remanded  for  further  proceedings.  „^y  f,^^  B^^  ^  Greenville,  and  J.  T. 

Ihe  facta  are  stated  u  the  opinion.  p^^  ^„  jj,  ,g,„t^  jgogj  having  general 

Mr.  O.  Carroll  Todd,  Assistant  to  the  charge  and  control  of  the  sUpmento  and  the 

Attorney  General,  argued  the  cause  and  filed  payment  of  freight  charges  therefor;  that  on 

a  brief  for  plaintiff  in  error.  a  data  specified,  and  while  said  scliedules 

-.1      nr    ^    ..       ..                J  Ai.  uid  tariffs  were  in  effect,  said  railway  com- 

? «i  Y'   u'   w*"??  Y^-          "^"^  Pa»y  transported  from  Baden  to  Greenville 

and  filed  a  brief  for  defendants  in  error.  J-^^  ^^^  manufacturing  company  a  specified 

■»#     -r    ...      «.^         J  1-        J  XI.        .  .  carload   of   yellow    pine    lumber    under    6 

Mr.  Justice  Pitney  delivered  the  opinion  .„^^    j^    thickness,    and    delivered    it   at 

J:?f  ^^^^'                          ,     ^,        .    .     1  Greenville  to  the  manufacturing  company; 

This  IS  a  writ  of  error  under  the  criminal  ^^  ^^  ^^^^^^j  ^.^^  ^,  said  carload  lot 

appeals  act  of  March  2,  1907   (chap.  2564,  ^^^  not. ascertained  at  Baden,  or  at  Green- 

34   Stat    at   I.   1246,  Comp    Stat   1913,  §  ^.^j     ^^  ^  .^^^.^    ^^^  ^^  manufacturing 

m4),  to  review  a  judgment  of  the  district  ^^^^          thereafter   unloaded   the    lumbe? 

court    for   the    southern    district   of    Flor-  f^om  the  car  and  ascertained  the  number  of 

Ida,    sustaining    a    demurrer    to    an    in-  ^^^  ^j^^^^,     ^^^  ^^^^  ^1^^  ^^j^  company, 

dictment   for   fraudulently   misrepresenting  ^^  p^^^       ^^^.      „  j^        ^^   ^^U  ,^„^^. 

the  weights  of  certain  shipments  of  lumber,  ^^  ^^  „„^ber  of  feet  to  be  9,074,  then 

in   violation  of  the  third  paragraph  of  §  ^^^  ^^^^6  falsely  and  fraudulently   repre- 

10    of   the   act   to    regulate   commerce,   as  gented   to   the  railway   company   that  the 

amended  June  18,  1910  (cliap.  309,  36  Stat,  number  of  feet  was  7,200,  la  consequence 

at  L.  649,  Comp.  Stat.  1913,  §  8574).!    Ihe  of  which  tlie  railway  company  eiiarged  and 

demurrer    [607]    was   sustained   upon   the  the  Union  Lumber  Company  paid  for  the 

ground  that  the  statute,  as  construed  by  the  transportation  of  said  lumber  less  than  the 


1  "Any  person,  corporation,  or  company, 
or  any  agent  or  officer  thereof,  who  shall 
deliver  property  for  transportation  to  any 
common  carrier  subject  to  the  provisions 
o(  this  act,  or  for  whom,  as  consignor  or 
consignee,  any  such  carrier  shall  transport 
property,  who  shall  knowingly  and  wilfully, 
40  li.  ed. 


wKrectly  or  indirectly,  himself  or  by  em- 
ploj^ee,  agent,  officer,  or  otherwise,  bv  false 
billing,  false  classification,  false  weighing, 
false  representation  of  the  contents  of  the 
package  or  the  substance  of  the  property, 
false  report  of  weight,  false  statementy  or 
by  any  other  device  or  meani«  wti«tL«&  "wNNXl 


008-610 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebii. 


lawful  charge  provided  in  the  schedules  and 
tariffs,  and  at  a  less  rate  than  the  lawfully 
established  rate. 

In  our  opinion,  the  court  below  misap- 
plied the  decision  in  Davis  v.  United  States, 
supra.  In  that  case,  which  arose  under  the 
act  as  it  stood  before  the  amendment  of 
1010  (25  Stat  at  L.  855,  chap.  382,  1  Rev. 
Stat.  Supp.  687,  Comp.  Stat.  1013,  §  8560), 
the  circumstances  were  very  different  from 
those  now  presented.  The  acts  charged  were 
misrepresentations  by  false  billing  and 
classification  of  certain  property  delivered 
by  defendants  to  the  railway  company  at 
Cincinnati,  Ohio,  for  transportation  thence 
to  Dallas,  Texas.  The  contract  of  carriage 
was  made  at  Cincinnati,  where  defendants 
resided  and  carried  on  business,  and  the 
bill  of  exceptions  showed  that  everything 
connected  with  the  shipment  of  the  goods 
except  the  carriage  and  delivery  took  place 
in  Cincinnati.  The  (tourt  said  (p.  130) :  ''We 
think  that  false  billing  or  other  misrepre- 
sentation of  the  goods,  as  stated  in  the  act, 
which  [609]  results  in  their  being  received 
by  the  carrier  under  a  contract  of  carriage 
thus  fraudulently  obtained,  is  the  obtaining 
of  transportation  within  the  meaning  of  the 
statute.  Then  the  fraudulent  conduct  of 
the  shipper  has  borne  its  fruit,  and  every 
act  and  intent  which  constitutes  the  offense 
is  complete.*'  It  was  accordingly  held  that 
the  offense  was  indictable  in  the  southern 
district  of  Ohio,  and  not  in  the  northern 
district  of  Texas,  within  which  was  the  des- 
tination of  the  goods.  We  are  not  called 
upon  to  either  concede  or  question  the  pro- 
priety of  this  decision  upon  the  facts  that 
were  there  presented.  General  expressions 
contained  in  the  opinion  are,  of  course,  to 
be  interpreted  in  the  light  of  those  facts. 
Another  case  of  the'  same  kind  is  Re  Bel- 
knap, 06  Fed.  614.  These  cases  are  not  in 
point  with  the  present.  In  each  of  them 
the  fraud  was  that  of  the  consignor.  Here 
it  is  the  consignee  and  its  agent  against 
whom  fraud  is  charged.  (The  fact  that  the 
consignee  was  also  the  consignor  is  of  no 
significance,  since  the  fraud  alleged  was 
in  what  it  did  as  consignee.)  There  the 
fraud  inhered  in  the  making  of  the  contract 
of  affreightment;  here  it  had  to  do  with  the 
liquidation  of  the  amount  payable  for 
freight  at  destination. 

The  act,  by  its  very  terms,  applies  to 
consignees  as  well  as  to  consignors.     But 


as  it  applies  only  to  interstate  transporta- 
tion, the  consignee  is  normally  a  resident 
of  a  different  state,  and  therefore  of  a  dif- 
ferent district,  from  that  where  the  goods 
are  billed  by  the  shipper  and  the  delivery 
for  transportation  takes  place.  To  say» 
therefore,  that  the  act  contemplates  an  in- 
dictment only  in  the  district  where  the 
goods  are  billed  by  the  shipper  is  in  effect 
to  say  that  in  most  cases  the  consignee 
either  may  not  be  indicted  at  all,  or  else 
must  be  indicted  in  a  district  of  which  he 
is  not  a  resident,  and  which  in  many  in- 
stances he  may  never  have  visited.  We  hold 
that  the  offenses  charged  ift  this  indictment 
were  "wholly  or  in  [610]  part  committed** 
in  the  southern  district  of  Florida.  See 
United  States  v.  Freeman,  230  U.  8.  117, 
ante,  172,  36  Sup.  Ct.  Rep.  32. 

It  is  insisted  in  behalf  of  defendants  in 
error  that  since  the  indictment  shows  that 
the  transportation  had  been  completed  and 
the  lumber  delivered  to  the  consignee  be- 
fore the  alleged  fraudulent  representations 
were  made,  it  cannot  be  said  that  the  fraud 
charged  amounted  to  cither  obtaining  or  at- 
tempting to  obtain  transportation  for  the 
property  at  less  than  the  established  rates. 
If  the  statute  on  which  the  indictment  is 
based  were  analogous  to  the  familiar  acta 
rendering  criminal  the  obtaining  of  money 
or  other  property  by  false  pretenses,  the 
argument  would  be  cogent.  Under  such 
statutes,  it  is  commonly  if  not  universally 
held  to  be  essential  to  criminality  that  the 
false  pretense  shall  precede  the  obtaining 
of  the  property.  People  v.  Haynes,  14  Wend. 
546,  563,  564,  28  Am.  Dec.  530,  reversing 
n  Wend.  557;  State  v.  Church,  43  Conn. 
471,  470;  State  v.  Moore,  111  N.  C.  667,. 
674,  16  S.  £.  384;  State  v.  Willard,  10» 
Mo.  242,  247,  10  S.  W.  180;  Watson  v. 
People,  27  111.  App.  403,  406. 

The  statutory  provision  with  which  we 
are  dealing  has  a  very  different  purpose. 
It  is  not  designed  especially  to  protect  the 
property  rights  of  the  carrier,  for  the  of- 
fense is  made  equally  punishable  whether 
committed  with  or  without  the  consent  or 
connivance  of  the  carrier.  It  originated  in 
the  1880  amendment  to  the  act  to  regulate 
commerce  (chap.  .382,  25  Stat,  at  L.  855,. 
858,  1  Rev.  Stat.  Supp.  684,  687,  Comp.  Stat 
1013,  §§  8560,  8576),  and  is  but  one  of 
many  provisions  enacted  by  Congress  with 
the  object  of  preventing  discriminations  and 


or  without  the  consent  or  connivance  of  tlft 
carrier,  its  agent,  or  officer,  obtain  or  at- 
tempt to  obtain  transportation  for  such 
property  at  less  than  the  regular  rates  then 
established  and  in  force  on  the  line  of  trans- 
portation; .  .  .  shall  be  deemed  guilty 
of  fraud,  which  is  hereby  declared  to  be  a 
894 


misdemeanor,  and  shall,  upon  conviction 
thereof  in  anv  court  of  the  United  States, 
of  competent  jurisdiction  within  the  district 
in  which  such  offense  was  wholly  or  in  part 
committed,  be  subject  for  each  offense  tq  a 
fine,"  etc. 

940  U.  8. 


1915. 


SOUTHERK  EXP.  00.  ▼.  BYERS. 


eia-612 


faToritism  as  between  shippers  by  requiring 
the  publication  of  tariffs  and  prohibiting 
any  departure   from   them.     The  prohibi- 
tions of  the  original  act  of  February  4, 
1887  (chap.  ]04,  §§  2,  3,  6,  10,  24  Stat,  at 
L.  379,  1  Rev.  Stat.  Supp.  629,  Oomp.  Stat. 
1913,  §§  8564,  8565,  8569,  8574),  were  ad- 
dressed to  the  carrier  alone.  The  1889  amend- 
ment brought  shipper  and  consignee  within 
the  scope  of  the  law,  both  by  enacting  that 
false    billing,    etc.,    should    be    punishable 
criminally,  [611]  and  by  providing  similar 
punishment  for  inducing  discriminations  by 
the  payment  of  money  or  other  thing  of 
value,  solicitation,  or  otherwise.    The  1910 
amendment  (chap.  309,  §  10,  36  Stat,  at  L. 
539,   549,   Oomp.   SUt.   1913,   §  8574)    ex- 
tended   the   range   of   the   prohibition    to 
eertaia  other  fraudulent  practices  by  con- 
flignors  and  consignees,  committed  for  like 
purposes. 

In  denouncing  as  criminal  "false  billing, 
false    classification,    false    weighing,    false 
representation  of  the  contents  of  the  pack- 
age or  the  substance  of  the  property,  false 
report  of  weight,  false  statement,  or   [by 
any]  other  device  or  means"  employed  in 
order  to  "obtain  or  attempt  to  obtain  trans- 
portation  for  such  property  at  less  than 
the  regular  rates  then  established,"  the  law- 
maker  regarded   not  merely   the   physical 
transportation  of  the  property,  but  the  en- 
tire transaction  through   which  consignor 
or  consignee  might  seek  to  evade  the  policy 
of  the  act  to  subject  all  interstate  ship- 
ments to  uniform  rates  of  charge  prescribed 
in  published  tariffs.     In  a  case  where  for 
any  reason  the  payment  of  the  freight  is 
not  made  prior  to  the  delivery  of  the  goods 
to  the  consignee,  but  remains  to  be  after- 
wards  adjusted,   the   effort   to   obtain   an 
advantage  not  permitted  by  the  schedules 
may   still   be   exerted   through   fraudulent 
representations  influencing  the  adjustment 
of  the  freight,  with  precisely  the  same  effect 
as  if  the  representations  had  preceded  de- 
livery of  the  goods.     When  this  is  accom- 
plished, there  is  a  fraudulent  obtaining  of 
tranq>ortation  at  less  than  the  established 
rate,  within  the  meaning  of  the  prohibition. 
Thus  it  needs  only  that  we  interpret  the 
statute  according  to  the  plain  meaning  of 
the  terms  employed,  in  the  light  of  subject- 
matter  and  context,  in  order  to  conclude, 
as  we  do,  that  the  acts  set  forth  in  this  in- 
dictment are  punishable  criminally  under 
the  act. 

The  judgment  of  the  District  Oourt  will 
be  reversed,  and  the  cause  remanded  for 


[612]  SOUTHERN  EXPRESS  OOMPANY» 

Plff.  in  Err., 

V. 

JOHN  BYERS, 

(See  S.  0.  Reporter's  ed.  612-616.) 

EMdence  —  documentary  —  carrier's 
rate  schedules. 

1.  Rate  schedules  of  an  interstate  car- 
rier on  file  with  the  Interstate  Commerce 
Commission  are  admissible  in  evidence  in 
an  action  against  it  to  recover  damages  for 
delay  in  the  deliverv  of  an  interstate  ship- 
ment on  the  issue  of  the  validity  and  effect 
of  a  provision  in  the  bill  of  lading  by  which 
the  carrier  undertook  to  lipiit  i&  liability 
to  a  specified  sum. 

[For  other  cases,  see  Evidence,  IV.  r,  in  Di- 
gest Sup.  Ct.  1908.] 

Damages  —  mental    anguish  —  carrier*8 

liability. 

2.  Damages  for  mental  suffering  only 
are  not  recoverable  from  a  carrier  on  ac- 
count of  its  delay  in  the  delivery  of  an  in- 
terstate shipment. 

[For  other  cases,  see  Damages,  VI.  q,  in  Di- 
gest Sup.  Ct.  1008.] 

INo.  201.] 

Submitted  March  2,  1916.    Decided  April  3, 

1916. 


I 


N  ERROR  to  the  Supreme  Court  of  the 
State  of  North  Carolina  to  review  a 
judgment  which  affirmed  a  judgment  of  the 
Superior  Court  of  Buncombe  County,  in 
that  ^tate,  awarding  damages  against  a  car- 
rier for  mental  suffering  only  on  account  of 

Note. — ^As  to  validity  of  agreement  to  re- 
strict carrier's  liability,  generally, — see 
notes  to  Deming  v.  Merchants'  Cotton  Press 
ft  Storage  Co.  13  L.R.A.  518;  Missouri  P.  R. 
Co.  V.  Ivey,  1  L.RJ^.  600;  Hartwell  v. 
Northern  P.  Exp.  Co.  3  L.R.A.  342;  Rich- 
mond ft  D.  R.  Co.  V.  Payne,  6  L.R.A.  841); 
Adams  £zp.  Co.  v.  Harris,  7  L.R.A.  214; 
Duntley  v.  Boston  ft  M.  R.  Co.  9  L.R.A. 
452;  Gulf,  C.  ft  S.  F.  R.  Co.  v.  Oatewood, 
10  L.R.A.  419 ;  Pacific  Exp.  Co.  v.  Foley,  12 
L.RJ^.  799;  Ballou  v.  Earle,  14  L.R.A.  433; 
Little  Rock  ft  Ft.  S.  R.  Co.  v.  Cravens,  18 
L.R.A.  527 ;  Everett  v.  Norfolk  ft  S.  R.  Co. 
1  L.RJL(N.S.)  985;  New  Jersey  Steam 
Nav.  Co.  V.  Merchants'  Bank,  12  L.  ed.  U.  S. 
466,  and  Chicago,  M.  ft  St  P.  R.  Co.  v. 
Solan,  42  L.  ed.  U.  S.  688. 

On  the  validity  of  stipulation  limiting 
carrier's  liability  to  agreed  valuation,  as 
affected  by  the  Hepburn  act — see  note  to 


Bernard  v.  Adams  ^p.  Co.  28  L.R.A.(N.S.) 
293. 

On  the  Carmack  amendment  as  affecting 
state    regulation    as   to    stipulations    lim- 
iting liability  of  common  carrier  for  loss  or 
^^  damage  to  ^oode— see  notes  to  Adams  Exp. 

fnrtliArnr<^^Lul{Ti<Mi  <»  ^^f^^uSZtlZ  4>V7    ^o.  V.  Croumgcr,  44  L.R.A.(N.S.)  257,  and 
further  proceedings  in  conformity  with  this   LouigviUe  &^.  k  Co.  y.  Miller.  50  LJLA. 

^^^on.  I  (NJ3.)   819. 


ei2,  613 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  TkBMy 


its  delay  in  the  deliyery  of  ap  interstate 
shipment.  Reversed  and  remanded  for 
further  proceedings. 

See  same  case  below,  165  K.  C.  642,  81 
S.  E.  741. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Jalina  O.  Martin,  Tbomas  8. 
Rollins,  George  H.  Wright,  and  Robert 
O.  Alston  submitted  the  cause  for  plain- 
tiff in  error: 

The  liabilitj  of  a  common  carrier  for 
mental  anguish  growing  out  of  loss,  injury, 
or  delay  of  a  shipment  moving  in  Interstate 
eommerce  is  to  be  controlled  by  the  law  as 
ascertained  and  administered  by  the  Federal 
judiciary. 

Adams  Exp.  Co.  v.  Croninger,  226  U.  S. 
491,  505,  57  L.  ed.  314,  319,  44  L.R.A.(N.S.) 
257,  33  Sup.  Ct.  Rep.  148;  Kansas  City 
Southern  R.  Co.  v.  Carl,  227  U.  S.  639,  640, 
57  L.  ed.  683,  687,  33  Sup.  Ct.  Rep.  301; 
SUter  ▼.  Mexican  Nat.  R.  Co.  194  U.  S.  120, 
126,  48  L.  ed.  900,  902,  24  Sup.  Ct.  Rep.  581; 
Western  U.  Teleg.  Co.  v.  Brown,  234  U.  S. 
542,  58  L.  ed.  1457,  34  Sup.  Ct.  Rep.  955,  5 
N.  C.  C.  A.  1024;  Geveland,  C.  C.  &  St.  L.  R. 
Co.  ▼.  Dettlebach,  239  U.  S.  588,  ante,  453, 
36  Sup.  Ct.  Rep.  177. 

That  law  does  not  permit  recovery  for 
mental  anguish  under  the  conditions  set  out 
in  this  record. 

Western  U.  Teleg.  Co.  ▼.  Wood,  21  L.R.A. 
706,  6  C.  C.  A.  432,  13  U.  S.  App.  317,  57 
Fed.  471;  Western  U.  Teleg.  Co.  v.  Cook,  9 
C.  C.  A.  680,  15  U.  S.  App.  445,  61  'Fed. 
624;  Felton  ▼.  Bullard,  37  C.  C.  A.  1,  94  Fed. 
781;  Baltimore  &  0.  R.  Co.  v.  Baugh,  149 
U.  S.  368,  37  L.  ed.  772,  13  Sup.  Ct.  Rep. 
914;  Byrne  ▼.  Kansas  City,  Ft.  S.  &  M.  R. 
Co.  24  L.RJL  693,  9  C.  C.  A.  666,  22  U.  S. 
App.  220,  61  Fed.  605;  Western  U.  Teleg. 
Co.  ▼.  Sklar,  61  C.  C.  A.  281,  126  Fed.  295; 
Western  U.  Teleg.  Co.  v.  Burris,  102  C.  C.  A. 
386,  179  Fed.  92;  Western  U.  Teleg.  Co.  ▼. 
Chouteau,  49  L.RJL(N.S.)  221,  note;  Chap- 
man Y.  Western  U.  Teleg.  Co.  88  Ga.  767, 
17  LJtA.  430,  30  Am.  St.  Rep.  183,  15  S.  E. 
901;  Cbase  v.  Western  U.  Teleg.  Co.  10 
L.RJL  464,  44  Fed.  554;  Crawson  v. 
Western  U.  Teleg.  Co.  47  Fed.  544; 
Kester  ▼.  Western  U.  Teleg.  Co.  55  Fed. 
603;  Gahan  ▼.  Western  U.  Teleg.  Co.  59 
Fed.  433;  Western  U.  Teleg.  Co.  v.  Hill,  163 
AU.  18,  23  L.RJ1.(N.S.)  648,  50  So.  248,  21 
Am.  Neg.  Rep.  1,  19  Ann.  Cas.  1058; 
Kennon  v.  Gilmer,  131  U.  S.  22,  26,  33  L.  ed. 
110,  112,  9  Sup.  Ct.  Rep.  696;  McDermott  ▼. 
Severe,  202  U.  8.  600,  611.  50  L.  ed.  1162, 
1168,  26  Sup.  Ct.  Rep.  709;  Tyler  v.  Western 
U.  Teleg.  Co.  54  Fed.  634;  Butner  v.  West- 
em  U.  Teleg.  Co.  2  Okla.  234,  4  Inters.  (  om. 
Rep.  770,  37  Pac.  1087 ;  International  Ocean 
Teleg.   Co.  t.   Saunders,   32  Fla.   434,  21 


I  L.RJL  810, 14  So.  148 ;  Davis  t.  Western  U. 
Teleg.  Co.  46  W.  Va.  48,  32  8.  E.  1026. 

The  contract  of  carriage  is  Inconsistent 
with  the  conception  that  mental  damages 
may  be  allowed. 

Adams  Exp.  Co.  t.  Croninger,  226  U.  S. 
491,  57  L.  ed.  314,  44  L.RJi.(N.S.)  257,  83 
Sup. 'ct.  Rep.  148;  George  N.  Pierce  Co.  T. 
WelU,  F.  &  Co.  236  U.  S.  278,  286,  59  L..  ed. 
576,  35  Sup.  Ct.  Rep.  351 ;  Telfair  County  v. 
Webb,  119  Ga.  916,  47  S.  £.  218;  Atlanta 
Ice  &  Coal  Co.  v.  Mixon,  126  Ga.  457,  55 
S.  E.  237. 

No  brief  wiu  filed  for  defendant  in  error. 

Mr.  Justice  McReynoids  delivered  the 
opinion  of  the  court: 

Claiming  damages  solely  on  account  of 
mental  anguish  occasioned  by  failure 
promptly  to  deliver  a  casket  and  [6131  grave 
clothes  Intended  for  his  wife's  burial,  and 
accepted  by  plaintiff  in  error  with  knowl- 
edge of  the  facts  at  AshevlUe,  North  Caro- 
lina, for  transportation  to  Hickory  Grove, 
South  Carolina,  Byers  recovered  a  judgment 
against  it  for  $250,  and  this  was  allirmed 
by  the  supreme  court  of  North  Carolina. 
165  N.  C.  542,  81  S.  E.  741. 

In  defense  the  Express  Company  av(»rred: 
That  while  engaged  in  Interstate  commerce 
It  received  the  described  articles  at  Ashe* 
vlllo  and  transported  them  to  Hickory 
Grove;  that,  as  required  by  act  of  Con- 
gress approved  June  29,  1006  [34  Stat,  at 
L.  584,  chap.  3591,  Comp.  SUt.  1013, 
§  85C3],  and  amendments,  it  had  filed  a 
schedule  of  rates  with  the  Interstate  Com- 
merce Commission;  that  at  time  of  ship- 
ment it  issued  a  bill  of  lading  limiting  lia- 
bility to  $50;  that  it  had  paid  the  shipper 
the  full  amount  expended  by  him  in  pur- 
chasing the  articles;  that  no  present  lia- 
bility exists,  and  especially  under  the  laws 
of  the  United  States  it  is  not  responsible 
for  such  damages  as  those  specified. 

There  was  put  In  evidence  a  duly  executed 
receipt  for  $64.17,  "being  in  full  payment 
for  one  coffin  delivered  to  Southern  Express 
Company  at  Asheville,  North  Carolina,  on 
April  Ist,  1912,  by  John  Byers,  to  be 
shipped  to  Sarah  Moore,  Hickory  Grove, 
South  Carolina;"  and  Byers  testified  that 
"the  Southern  Express  Company  paid  him 
for  all  the  money  he  had  paid  out  on  the 
casket  and  other  things  oontalned  in  the 
shipment,  but  did  not  pay  him  anything  for 
damages."  The  bill  of  lading  was  also  in- 
troduced. It  specified  no  value  and  under- 
took to  restrict  the  carrier's  liability  to 
$50.     Clause  1  is  copied  in  the  margin,  i 

1 1.  In  consideration  of  the  rate  charged 
for  carrying  said  property  which  is  regu- 
lated by  the  value  and  classification  thereof 

940  U.  8. 


1916. 


SOUTHERN  EXP.  CO.  v.  BYERS. 


613-610 


Objection  was  sustained  to  a  seasonable 
[614]  offer  by  the  company  to  prove  its 
sdiedules  of  rates  on  file  with  the  Interstate 
Commerce  Commission. 

Manifestly  the  shipment  was  interstate 
commerce;  and,  under  the  settled  doctrine 
«atabli8hed  by  our  former  opinions,  rights 
and  liabilities  in  connection  therewith  de- 
pend upon  acts  of  Congress,  the  bill  of  lad- 
ing and  common -law  principles  accepted 
and  enforced  by  the  Federal  courts.  In 
order  to  determine  the  validity  and  effect 
of  restrictions  upon  liability  contained  in 
such  bills,  it  is  important,  if  not  indeed 
essential,  to  consider  the  applicable  sched- 
ules on  file  with  the  Commission.  Adams 
Exp.  Co.  V.  Croninger,  226  U.  S.  491,  67  L. 
«d.  314,  44  L.R.A.(N.S.)  267,  33  Sup.  Ct. 
Rep.  148;  Chicago,  B.  &  Q.  R.  Co.  v.  Miller, 
226  U.  S.  613,  57  J^  ed.  323,  33  Sup.  Ct. 
Rep.  155;  Chicago,  St.  P.  M.  ft  0.  R.  Co. 
V.  LatU,  226  U.  S.  519,  57  L.  ed.  328,  33 
Sup.  Ct.  Rep.  155;  Wells,  F.  &  Co.  v.  Nei- 
man-Marcus  Co.  227  U.  S.  469,  67  L.  ed. 
600,  33  Sup.  Ct.  Rep.  267;  Kansas  City 
Southern  R.  Co.  v.  Carl,  227  U.  S.  639,  67 
X..  ed.  683,  33  Sup.  Ct.  Rep.  391 ;  Missouri, 
K.  &  T.  R.  Co.  V.  Harriman,  227  U.  S.  657, 
57  L.  ed.  690,  33  Sup.  Ct.  Rep.  397;  Chi- 
<*ago,  R.  I.  &  P.  R.  Co.  V.  Cramer,  232  U. 
S.  490,  58  L.  ed.  697,  34  Sup.  Ct.  Rep.  383 ; 
Boston  &  M.  R.  Co.  v.  Hooker,  233  U.  S. 
€7,  58  L.  ed.  868,  L.R.A.1915B,  450,  Ann. 
Cas!  1915D,  693;  George  M.  Pierce  Co.  v. 
Wells,  F.  &  Co.  236  U.  S.  278,  59  L.  ed. 
676,  35  Sup.  Ct.  Rep.  351 ;  New  York,  P.  &. 
N.  R.  Co.  V.  Peninsula  Produce  Exch.  240 
U.  S.  34,  ante,  511,  36  Sup.  Ct.  Rep.  230. 

It  was  plain  erroY  to  exclude  the  rate 
flchedules. 

[615]  Having  been  requested  in  apt  time, 
the  trial  court  refused  to  charge  the  jury  as 
follows:  "As  the  shipment  which  is  al- 
leged to  have  been  delayed  was  a  shipment 
in  interstate  commerce,  and  as  the  damage 
claimed  by  the  plaintiff  is  damage  for  men- 
tal suffering  only  on  account  of  the  delay 
of  the  delivery  of  said  shipment,  the  court 
instructs  the  jury  that  under  the  evidence 
in  this  case  the  plaintiff  is  not  entitled  to 


recover  any  such  damage;  the  jury  is  there- 
fore directed  to  render  a  verdict  for  the  de- 
fendant." This  instruction  should  have 
been  given. 

The  action  is  based  upon  a  claim  for 
mental  suffering  only, — ^nothing  else  was  set 
up  and  the  proof  discloses  no  other  injury 
for  which  compensation  had  not  been  made. 
In  such  circumstances  as  those  presented 
here,  the  long-recognized  common-law  rule 
permitted  no  recovery;  the  decisions  to  this 
effect  "rest  upon  the  elementary  principle 
that  mere  mental  pain  and  anxiety  are  toa 
vague  for  legal  redress  where  no  injury  is 
done  to  person,  property,  health,  or  repu- 
tation.'' Cooley,  Torts,  3d  ed.  page  94. 
The  lower  Federal  courts,  almost  without 
exception,  have  adhered  to  this  doctrine, 
and  in  so  doing  we  think  they  were  clearly 
right  upon  principle  and  also  in  accord  with 
the  great  weight  of  authority.  Chase  v. 
Western  U.  Teleg.  Co.  10  L.RJl.  464,  44 
Fed.  654;  Crawson  v.  Western  U.  Teleg. 
Co.  47  Fed.  644 ;  Wilcox  v.  Richmond  &  D. 
R.  Co.  17  L.R.A.  804,  3  C.  C.  A.  73,  8  U. 
S.  App.  118,  62  Fed.  264 ;  Tyler  v.  Western 
U.  Teleg.  Co.  54  Fed.  634;  Kester  v.  West- 
ern U.  Teleg.  Co.  66  Fed.  603;  Western  U. 
Teleg.  Co.  v.  Wood,  21  L.R.A.  706,  6  C.  C. 
A.  432,  13  U.  S.  App.  317,  67  Fed.  471; 
Gahan  v.  Western  U.  Teleg.  Co. '69  Fed. 
433 ;  McBride  v.  Sunset  Teleph.  Co.  96  Fed. 
81;  SUnsell  v.  Western  U.  Teleg.  Co.  107 
Fed.  668;  Western  U.  Teleg.  Co.  v.  Sklar, 
61  C.  C.  A.  281,  126  Fed.  296;  Alexander  v. 
Western  U.  Teleg.  Co.  126  Fed.  445;  Rowan 
V.  Western  U.  Teleg.  Co.  149  Fed.  550;  West- 
em  U.  Teleg.  Co.  v.  Burr  is,  102  C.  C.  A. 
386,  179  Fed.  92;  Kyle  v.  Chicago,  R.  I.  & 
P.  R.  Co.  105  C.  C.  A.  161,  182  Fed.  613. 
But  see  Beasley  v.  Western  U.  Teleg.  Co. 
39  Fed.  181. 

[616]  In  So  Relle  ▼.  Western  U.  Teleg.  Co. 
(1881)  55  Tex.  308,  40  Am.  Rep.  805,  the 
supreme  court  of  Texas  held  the  addressee 
of  a  message  might  recover  damages  of  a 
telegraph  company  because  of  mere  mental 
suffering.  Subsequently  the  courts  of  Ala- 
bama, Iowa,  Kentucky,  Nevada,  North  Caro- 
lina, and  Tennessee  approved  and  enforced 


jund  is  based  upon  a  valuation  of  not  exceed- 
ing $50  for  any  shipment  of  100  pounds  or 
less,  and  not  exceeding  50  cents  per  pound 
lor  any  shipment  in  excess  of  100  pounds, 
unless  a  greater  value  is  declared  at  time  of 
shipment,  the  shipper  agrees  that  the  com- 
pany shall  not  be  liable  in  any  event  for  more 
than  fifty  dollars  ($50)  on  any  shipment 
of  100  pounds  or  less,  and  for  not  exceed- 
ing 60  cents  per  pound  on  a  shipment  weigh- 
ing more  than  100  pounds,  and  said  prop- 
erty is  valued  at,  and  the  liability  of  this 
company  is  hereby  limited  to,  the  value 
above  stated,  unless  a  greater  value  is  de- 
clared at  the  time  of  shipment,  and  the 
60  li.  ed. 


charge  for  value  paid  or  agreed  to  be  paid 
therefor ;  and  in  case  of  partial  loss  or  dam- 
age the  company  shall  not  be  liable  for  more 
than  such  proportion  of  the  same  as  $50 
if  100  pounds  or  less  in  weight,  or  60  cents 
per  pound  if  weight  exceeds  100  pounds,  or 
the  value  declared  bears  to  the  actual  value 
if  greater. 

If  the  said  property  is  offered  for  ship- 
ment under  the  special  rates  named  in  sec- 
tions "D"  and  **E"  of  the  existing  Official 
Express  ^Classification,  it  is  agreed  that 
the  value  of  the  same  does  not  exceed  ten 
dollars  ($10)  per  package,  said  rates  not 
applying  on  packages  of  greater  value. 


610,  617,  619 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TkBMy 


A  like  rule;  those  of  Dakota,  Florida,  Geor- 
gia, Xllinois,  Indiana,  Kansas,  Minnesota, 
Mississippi,  Missouri,  New  York,  Ohio, 
Oklahoma,  Virginia,  and  West  Virginia  defi- 
nitely rejected  the  innovation.  Many  of 
the  pertinent  cases  are  reviewed  in  Western 
U.  Teleg.  Co.  v.  Chouteau  (1911)  28  Okla. 
664,  115  Pac.  879,  Ann.  Cas.  1912D,  824, 
3  N.  C.  C.  A.  879,  49  L.R.A.(N.S.)  206, 
and  note;  the  general  subject  is  discussed 
and  the  authorities  cited  in  Sutherland  on 
Damages,  3d  ed.  §§  975  et  seq.,  Sedgwick  on 
"Damages,  9th  ed.  §§  43  et  seq.,  and  Shear- 
man &  Redfield  on  Negligence,  6th  ed.  §§ 
756  et  seq. 

The  judgment  of  the  court  below  must  be 
reversed  and  the  cause  remanded  for  fur- 
ther proceedings  not  inconsistent  with  this 
opinion. 

And  it  is  so  ordered. 

Mr.  Justice  McKenna  and  Mr.  Justice 
Holmes  concur  in  the  result. 


[617]  G.  F.  VARNER  and  W.  E.  Marshall, 
Partners,  Doing  Business  as  the  Wichita 
Lumber  Company,  Appts., 


V. 


NEW  HAMPSHIRE  SAVINGS  BANK  and 
P.J.  Conklin.(No.  264.) 


HAINES   TILE    k   MANTEL   COMPANY, 

Appt., 

V. 

NEW     HAMPSHIRE     SAVINGS     BANK 
and  P.  J.  Conklin.  (No.  265.) 


JACKSON-WALKER  COAL  k  MATERIAL 

COMPANY,  Appt., 

y. 

NEW  HAMPSHIRE  SAVINGS  BANK  and 
P.  J.  Conklin.  (No.  266.) 

(See  S.  C.  Reporter's  ed.  617-619.) 

Appeal  *•  fl*oni  oircnit  coart  of  appeals 
*•  review  of  facts. 

A  decree  of  a  circuit  court  of  appeals 
will  be  affirmed  by  the  Federal  Supreme 
Court  where  the  essential  question  is  one  of 
fact,  and  the  latter  court  thinks  that  the 
evidence,  though  sharply  conflicting  and  dis- 

NoTE. — On  the  appellate  jurisdiction  of 
the  Federal  Supreme  Court  over  circuit 
courts  of  appeals — tee  notes  to  MtLf^ej  v. 
General  Fire  Extinguisher  Co.  63  L.  ed. 
U.  S.  603,  and  St.  Anthony's  Church  v. 
Pennsylvania  R.  Co.  59  L.  ed.  U.  S.  1119. 
828 


closing  substantial  diffieulties»  sustains  ths 
conclusion  reached  below. 
[For  other  cases,  see  Appeal  and  Brror,  VIIL. 
1,  1,  in  Digest  Sap.  Ct.  1908.] 

[Nos.  264,  266,  266.] 

Argued  March  8  and  9, 1916.    Decided  April 

3,  1016. 

THREE  APPEALS  from  the  United  SUtea 
Circuit  Court  of  Appeals  for  the  Eighth 
Circuit  to  review  decrees  which,  reversing 
a  decree  of  the  District  Court  for  the  Dis- 
trict of  Kansas,  adjudged  that  mortgage 
creditors  of  the  bankrupt  were  entitled  ta 
priority  over  mechanics'  lienors.     Affirmed. 

See  same  case  below,  132  C.  C.  A.  631,. 
216  Fed.  721. 

The  facts  are  stated  in  the  opinion. 

Mr.  Chester  I.  Long  argued  the  cause,, 
and,  with  Messrs.  J.  A.  Brubacher,  George 
Gardner,  and  A.  M.  Cowan,  filed  a  brief  for 
appellants. 

Messrs.  Kos  Harris  and  Samael  O. 
Kastman  argued  the  cause,  and,  witli 
Messrs.  V.  Harris,  R.  L.  Holmes,  C.  G.  Yaa- 
key,  and  W.  E.  Holmes,  filed  a  brief  for  ap- 
pellees. 

Mr.  Justice  McReynolds  delivered  the 
opinion  of  the  court: 

This  is  a  contest  for  priority  between 
creditors  of  a  bankrupt.  Appellees  claim 
under  mortgages  upon  certain  real  estate  m 
Wichita,  alleged  to  have  been  recorded  be- 
fore building  operations  on  the  property 
were  commenced.  Appellants  maintain  eon- 
struction  began  prior  to  recordation,  and 
that  they  are  secured  by  preferred  me- 
chanics' liens  created  by  the  Kansas  stat- 
ute. Disagreeing  with  the  district  courts 
but  in  accord  with  the  referee's  opinion,  the 
circuit  court  of  appeals  (132  C.  C.  A.  631, 
216  Fed.  721)  held  that  no  "such  work  as 
amounted  to  the  commencement  of  the  build- 
ing within  the  meaning  of  the  Kansas  stat- 
ute" was  performed  prior  to  the  time  when 
the  mortgages  were  placed  on  record,  and 
"that  what  was  done  was  but  a  mere  pre- 
tense at  the  commencement  of  a  building,, 
done  to  defeat  bona  fide  prior  liens."  And 
it  accordingly  adjudged  the  mortgage  cred- 
itors entitled  to  priority. 

The  essential  question  presented  is  one 
of  fact;  and  there  is  sharp  dispute  in  the 
testimony.  Substantial  difficulties  are  dis- 
closed, but,  after  considering  the  evidence,, 
we  think  it  sustains  the  conclusions  reached 
by  the  Circuit  Court  of  Appeals;  and  the 
judgment  entered  there  is  accordingly  af- 
firmed. 

940  V.  8. 


1916. 


BALTIMORE  ft  O:  R.  (X).  v.  HOSTEriER. 


620,  622,  623 


1620]  BALTIMORE  &  OHIO  RAILROAD 
COMPANY,  Plflf.  in  Err., 

V. 

HARRY  F.  HOSTETTER. 
(See  8.  0.  Reporter's  ed.  620-625.) 

^adgment   —   jarlsdiction    to    ^amlsb 

debt  due  to  nonresident  «  full  faith 
and  credit. 

Jurisdiction  in  garnishment  of  a  debt 
•due  from  a  railway  company  to  a  nonresi- 
dent employee  may  be  acquired  without  no- 
tice to  or  servioe  of  process  upon  him  (other 
than  an  ertrajudicial  notice  given  1^  the 
^[amishee),  so  as  to  make  the  judgment  in 
the  gami^ment  proceedings  valid  as  to 
bim,  and  entitle  it  to  full  faith  and  credit 
in  tiie  state  where  he  resides. 
I  For  other  cases,  see  Judgment.  281-240,  088- 
1004,  in  Digest  Sup.  Ct.  1908.] 

[No.  245.] 

Submitted  January  25,  1016.    Decided  April 

10,  1016. 

IN  ERROR  to  the  Circuit  Court  of  Marion 
County,  in  the  state  of  West  Virginia, 
to  review  a  judgment  which  affirmed  a 
judgment  of  the  Intermediate  Court  of  said 
county,  which,  on  a  trial  de  novo  on  an  ap- 
peal from  a  justice's  court  judgment,  re- 
fused to  enforce  a  judgment  rendered  in 
another  state  in  garnishment  proceedings. 
Reversed  and  remanded  for  further  proceed- 
ings. 
The  facts  are  stated  in  the  opinion. 

Mr.  George  £•  Hamilton  submitted  the 
eause  for  plaintiff  in  error.  Messrs.  Francis 
R.  Cross  and  A.  Hunter  Boyd,  Jr.,  were  on 
the  brief. 

Mr.  W.  H.  Gonaway  submitted  the  cause 
for  defendant  in  error. 

Mr.  Chief  Justice  White  delivered  the 
opinion  of  the  court: 

Hoetetter,  the  defendant  in  error,  a  resi- 
dent of  West  Virginia,  sued  in  a  justice's 
court  in  that  state  for  wages  due  him  by 
the  railroad  company,  now  plaintiff  in  er- 
ror. The  defense  was  that  the  wages  had 
been  paid  by  the  railroad  company  as  the 
result  of  a  garnishment  proceeding  taken 
against  it  in  the  state  of  Virginia,  where 
it  was  suable,  to  enforce  a  judgment  ren- 

NoTE. — ^As  to  protection  of  a  nonresident 
•creditor  against  garnishment— see  notes  to 
lUinois  C.  R.  Co.  ▼.  Smith,  19  L.R.A.  577 ; 
Ooodwin  v.  Claytor,  67  UIUL  209;  Starkey 
T.  Cleveland,  C.  C.  &  St.  L.  R.  Co.  ImBJl, 
1915F,  880;  and  King  v.  Cross,  44  L.  ed. 
211. 

On  the  right  of  garnishee  to  attack  judff- 
liient  against  principal  defendant  for  lack 
of  jurisdiction — see  note  to  Atwood  v.  Roan, 
61  L3J^.(NJ3.)  697. 
«0  li.  ed. 


dered  in  Virginia  against  Hostetter  when 
he  resided  in  that  state,  and  after  a  domi- 
ciliary service  on  him.  The  case  went  from 
the  justice's  court  for  a  de  novo  trial  to  the 
intermediate  court  of  Maricm  county,  where, 
as  the  result  of  a  verdict  against  the  rail- 
road company,  it  was  condemned  to  pay 
again,  the  court  holding  that  the  Virginia 
garnishment  proceeding  was  not  entitled  to 
be  enforced  as  against  Hostetter  under  the 
full  faith  and  credit  clause  of  the  Consti- 
tution of  the  United  States  because  he  was 
not  served  with  process  in  such  proceeding, 
he  then  residing  in  West  Virginia,  although 
extrajudicial  notice  was  given  him  by  the 
railroad  company  of  the  proceeding.  The 
case  is  here  on  writ  of  error  to  review  the 
judgment  of  the  court  below,  affirmirfg  that 
of  the  intermediate  court,  and  whether  prop- 
er force  was  given  to  the  full  faith  and 
credit  clause  is  the  question  for  decision. 

It  is  true  that  in  the  argument  for  the 
defendant  in  error  various  suggestions  are 
made  as  to  the  insufficiency  of  the  record 
concerning  the  existence  of  the  Virginia 
judgment  upon  which  reliance  on  the  full 
faith  and  credit  [623]  clause  was  placed,  on 
the  ground  that  the  record  contains  mere  re- 
citals with  reference  to  the  judgment,  etc., 
etc.  For  the  sake  of  brevity  we  do  not 
stop  to  review  these  suggestions,  although 
we  have  considered  them  all,  since  we  think 
they  are  not  only  without  merit,  but  many 
of  them  are  in  effect  frivolous,  because  in 
our  opinion  the  record  suffices  to  establish 
the  facts  which  were  stated  by  the  court 
below  as  the  basis  for  its  judgment,  and 
which  we  briefly  recapitulate  as  follows: 

The  plaintiff  in  July,  1911,  resided  in 
Clifton  Forge,  Virginia,  and  was  indebted 
to  one  Wagner  in  tlie  sum  of  $35,  for  which 
debt  Wagner  obtained  a  judgment  against 
him  in  a  justice's  court  of  Virginia,  based 
upon  a  summons  served  *'on  said  plaintiff 
.  .  .  by  delivering  a  copy  thereof  to  the 
wife  the  plaintiff  at  his  usual  place  of 
abode.  .  .  .  Said  record  further  shows 
.  .  •  that  on  the  17th  day  of  September, 
1912,  a  garnishee  summons  was  issued  by 
H.  H.  Harlow,  a  justice  of  the  peace  in  the 
city  of  Staunton,  Virginia,  .  .  .  which 
garnishee  summons  was  directed  against  the 
said  Baltimore  ft  Ohio  Railroad  Company 
.  .  •  charging  that  it  had  money,  or 
other  personal  estate,  in  its  possession  or 
control  belonging  to  the  said  Hostetter,  and 
requiring  the  said  railroad  company  to  ap- 
pear ...  to  answer  said  garnishment 
or  suggestion;  .  .  .  and  that  on  the  3d 
day  of  October,  1912,  said  justice  last  above 
named  rendered  a  judgment  against  the  said 
Hostetter  and  the  Baltimore  ft  Ohio  Rail- 
road Company  in  favor  of  the  said  Wagner 
in  the  sum  of  $38.40,  with  interest  .  .  • 
In  this  garnishment  or  suggestion  proceed- 

89t 


023-025 


SUPREME  COURT  OF  THt:  UNITED  STATES. 


Cot.  TkiM, 


ing»  no  notice  or  process  of  any  kind  was 
given  to  or  served  upon  the  said  Hostetter, 
he  then  being  a  resident  of  this  state  [West 
Virginia],  and  had  been  such  resident  for 
more  than  a  year  previous  to  the  date  of  the 
institution  of  the  garnishment  proceeding. 
From  this  said  last-named  judgment  the 
Baltimore  k  Ohio  Railroad  Company  [624] 
i^ppealed  to  the  corporation  court  of  the 
city  of  Slaunton,  and  this  appeal  was  heard 
and  passed  upon  by  said  court  on  the  27th 
day  of  February,  1913.  So  far  as  the  rec- 
ord shows,  no  notice  of  such  proceeding  in 
the  courts  of  Virginia  was  given  to  the  de- 
fendant until  on  or  about  the  14th  day  of 
February,  1913,  when  the  said  railroad  com- 
pany* did  notify,  in  writing,  the  said 
Hostetter,  of  the  pendency  of  the  said  gar- 
nishment proceedings  on  appeal  in  said  cor- 
poration court.  ...  It  is  not  contended 
that  any  formal  notice  was  given  to  said 
Hostetter  of  the  garnishment  proceedings 
for  the  reason  that  the  statute  of  Virginia 
under  which  said  proceedings  was  instituted 
does  not  require  notice  to  be  given  a  non- 
resident of  that  state  of  the  pendency  of  the 
garnishment  or  suggestion." 

Although  the  railroad  had  paid  in  virtue 
of  the  judgment  rendered  in  the  garnish- 
ment proceeding  taken  as  above  stated,  the 
eourt,  agreeing  in  opinion,  as  we  have  said, 
with  the  trial  court,  held  that  the  garnish- 
ment proceeding  and  the  judgment  in  it 
were  no  protection  to  the  Railroad  company 
because  there  was  no  power  in  the  Virginia 
eourts  to  garnishee  in  that  state  in  the  hands 
of  the  railroad  a  sum  of  money  due  by  it 
to  an  employee  domiciled  in  another  state 
without  service  on  such  employee  in  Vir- 
ginia, and  that  the  full  faith  and  credit 
clause  imposed  no  duty  to  enforce  a  judg- 
ment in  gamisliment  proceedings  affected 
with  the  want  of  power  stated. 

In  view  of  the  decisions  of  this  eourt  deal- 
ing with  the  exact  situation  here  presented 
and  expressly  holding  that  the  principles 
upon  which  the  court  below  based  its  ac- 
tion were  erroneous  and  could  not  be  up- 
held consistently  with  the  duty  to  apply 
and  enforce  Uie  full  faith  and  credit  clause, 
we  need  do  no  more  than  cite  the  cases  re- 
ferred to.  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Sturm,  174  U.  S.  710,  43  L.  ed.  1144, 19  Sup. 
Ct  Rep.  797;  Harris  ▼.  Balk,  198  U.  S. 
215,  49  L.  ed.  1023,  25  Sup.  Ct.  Rep.  025, 
3  Ann.  Cas.  1084;  Louisville  &  K.  R.  Co. 
T.  Deer,  200  U.  S.  170,  50  L.  ed.  420,  20 
Sup.  Ct.  Rep.  207. 

[625]  As  it  follows  that  the  judgment  be- 
low, in  so  far  as  it  compelled  the  railroad  to 
pay  the  second  time  the  sum  which  it  had 
discharged  under  the  Virginia  judgment, 
w»f  erroneous,  it  muat  be  reversed  and  the 

sso 


ease  remanded  for  further  prooeedingt  not 
inconsistent  with  this  opinion. 
And  it  is  so  ordered. 


MARY  LENORE  BULLEN,  George  Bullen, 
Jr.,  Richard  Nixon  Bullen,  William 
Graham  Bullen,  and  John  Nixon  Bulleo^ 
Plffs.  in  Err., 

V. 

STATE  OF  WISCONSIN. 
(See  S.  C.  Reporter's  ed.  025-032.) 

Constitntional  law  —  dne  process  of  law 

—  impairing   contract   obligations  * 
inheritance  tax. 

1.  A  fund  represented  by  stocks,  bonds, 
and  notes  kept  in  a  state  other  than  that 
where  the  decedent  resided,  which  he  con- 
veyed upon  certain  trusts  to  a  trust  company 
of  such  other  state,  reserving  to  himself  an 
absolute  power  of  control,  which  he  exer- 
cised during  his  life  by  a  revocation  (fol- 
lowed by  a  second  conveyance  to  the  trust 
company  upon  the  same  terms),  and  by  tak- 
ing the  whole  income  for  himself,  may  be 
subiected  to  an  inheritance  tax  in  the  state 
of  his  domicil,  without  violating  the  14th 
Amendment  or  the  contract  clause  of  the 
Federal  Constitution. 

[For  other  cases,  see  CoDstltiitlonal  Law,  554- 
558,  1450-1474,  ^  Digest  Sup.  Ct.  1908.] 

Error  to  state  oonrt  —  scope  of  review 

—  error  not  assigned  below. 

2.  Errors  not  assi^ed  on  appeal  to  the 

highest  state  court  will  not  be  considered 

by  the  Federal  Supreme  Court  on  writ  of 

error. 

[For  other  cases,  see  Appeal  and  Error,  2104- 
2174,  in  Diffest  Sup.  Ct.  1008.] 

[No.  202.] 

Argued  March  8,  1010.    Decided  April  10» 

1010. 

IN  ERROR  to  the  County  Court  of  Wau- 
kesha County,  in  the  State  of  Wisconsin, 
to  review  a  judgment  enforcing  an  inherit- 

NoTK. — As  to  taxes  on  succession  and  col- 
lateral inheritances — see  notes  to  Re  Howe^ 
2  L.R.A.  825;  Wallace  T.  Myers,  4  LJtA. 
171;  Com.  V.  Ferguson,  10  LJtAu  240;  Re 
Romaine,  12  L.RJI.  401;  Rodman  v.  Com. 
33  L.RJl.(N.S.)  502;  State  ex  rel.  Ise  v. 
Cline,  50  L.RJl.(N.S.)  001;  and  Masoun 
V.  Illinois  Trust  &  Sav.  Bank,  42  L.  ed.  U. 
S.  1037. 

On  succession  tax  upon  gift  in  contempla- 
tion of  death — see  note  to  Re  Deaaert,  40 
L.ILA.(N.S.)   700. 

On  physical  presence  or  absence  of  per- 
sonal property  or  evidence  thereof  as  aflfeet- 
ing  liability  to  succession  tax — see  note  to 
Re  Helena,  40  L.R.A.(N.S.)  1107. 

On  what  questions  the  Federal  Supreme 
Court  will  consider  in  reviewing  the  judg- 
ments of  state  courts — see  note  to  Missouri 
ex  rel   Hill  v.  Dockery,  03  hJELA.  571. 

940  V.  8. 


1915. 


BULLEN  ▼.  WI800N8IN. 


ance  tax  npon  a  trust  fund  held  outside  the 
i^te,  entered  pursuant  to  the  mandate  of 
the  Supreme  Court  of  that  state,  on  an  ap- 
peal from  the  Circuit  Court  of  said  county. 
AffirmtHl. 

See  same  case  below,  143  Wis.  512,  130 
Am.  St.  Rep.  Ill 4,  128  N.  W.  100. 

The  facts  are  stated  in  the  opinion. 

Mr.  John  R.  Montgomerj  argued  the 
cause,  and,  with  Messrs.  Louis  E.  Hart, 
Jaspersen  Smith,  and  Lloyd  R.  Steere,  filed 
a  brief  for  plaintiffs  in  error: 

'The  Wisconsin  rule  is  that  the  tax  is  an 
excise  tax,  or  a  tax  on  a  privilege.  The 
thing  or  commodity  upon  which  it  is  levied 
is  the  transfer  transaction,  or  right  to  re- 
ceive property. 

Nunnemacher  t.  State,  120  Wis.  100,  0 
L.ILA.(N.S.)  121,  108  N.  W.  827,  0  Ann. 
Oas.  711;  Reals  ▼.  State,  130  Wis.  544,  121 
N.  W.  347;  State  v.  Pabst,  130  WU.  561, 
121  N.  W.  351. 

This  implies,  however,  the  further  qualifi- 
cation that  the  transfer  transaction  occurs 
under  or  by  virtue  of,  or  that  the  right  to 
receive  property  is  derived  through,  the 
laws  of  Wisconsin.  That  state  has  no  ex* 
trmterritorial  jurisdiction. 

Bliss  V.  Bliss,  221  Mass.  201,  L.RA. 
1016A,  880,  100  N.  E.  148;  Walker  v.  The 
Treasurer,  221  Mass.  800,  100  N.  B.  647; 
State  T.  Brevard,  62  N.  C.  (Phill.  Eq.)  141; 
Alvany  v.  Powell,  55  N.  C.  (2  Jones,  Eq.) 
51 ;  Bittinger's  Estate,  120  Pa.  338,  18  Atl. 
182;  Re  Joyslin,  76  Vt.  88,  56  Atl.  281;  Re 
Swift,  137  N.  Y.  77,  18  LJlJl.  700,  82  N.  B. 
1006;  aarke  v.  Clarke,  178  U.  S.  186,  44 
L.  ed.  1028,  20  Sup.  Ct.  Rep.  873. 

A  decedent's  personal  property  in  a  for- 
eign jurisdiction  will  be  subject,  in  a  proper 
case,  to  taxation  both  at  home  and  in  the 
foreign  state,  if  the  laws  of  both  states  are 
requisite  to  the  legal  transfer  of  the  prop- 
erty at  the  owner's  death,  and  it  does  not 
matter  that  the  machinery  of  the  law  would 
not  need  to  be  invoked  in  the  particular 


Blackstone  r.  Miller,  188  U.  S.  180,  47  L. 
ed.  430,  23  Sup.  Ct.  Sup.  277;  Mann  v. 
Garter,  74  N.  H.  345,  15  L.RJ1.(N.S.)  150, 
68  Atl.  130;  Hopkins's  Appeal,  77  Conn. 
644,  60  Atl.  657. 

The  inheritance  tax  laws  of  Wisconsin 
and  Illinois  are  both  adopted  from  New 
York.  Both  are,  therefore,  subj^  to  the 
Hune  rules  of  interpretation. 

People  T.  Grifilth,  245  HL  532,  02  N.  E. 
S13. 

An  inheritance  tax  cannot  be  levied  by 
lay  state  unless  the  operation  of  its  laws 
m  necessary  in  order  to  effect  the  transfer. 

Walker  v.  The  Treasurer,  221  Mass.  600, 
LOO  N.  E.  647;  Be  Clark,  37  Wash.  671,  80 
!•  U  ed. 


Pac  267;  Clark  v.  The  Treasurer,  218  Maaa. 
202,  105  N.  B.  1055;  Eidman  t.  Blartinei, 
184  U.  S.  578,  46  L.  ed.  607,  22  Sup.  Ct 
Rep.  515;  Moore  v.  Ruckgaber,  184  U.  S. 
503,  46  L.  ed.  705,  22  Sup.  Ct.  Rep.  521; 
Woodruff  T.  Atty.  Gen.  [1008]  A.  C.  508,  24 
Times  L.  R.  012;  BUckwood  v.  Reg.  L.  R. 
8  App.  Cas.  82,  52  L.  J.  P.  C.  N.  S.  10,  48 
L.  T.  N.  S.  441,  31  Week.  Rep.  645;  State  v. 
Brevard,  62  N.  C.  (PhilL  Eq.)  141;  Alvany 
V.  Powell,  55  N.  C.  (2  Jones,  Eq.)  51;  Re 
Joyslin,  76  Vt  88,  56  AtL  281. 

This  is  lu  corollary  to  the  entire  line  of 
decisions  by  this  court  of  questions  relating 
to  inheritance  taxes. 

Mager  v.  Grima,  8  How.  400,  12  L.  ed. 
1168^  Carpenter  v.  Pennsylvania,  17  How. 
456,  15  L.  ed.  127 ;  Scholey  v.  Rew,  23  Wall. 
331,  23  L.  ed.  00;  United  SUtes  ▼. 
Fox,  04  U.  S.  315,  24  L.  ed.  102;  Clapp 
V.  Mason,  04  U.  S.  580,  24  L.  ed.  212;  United 
States  T.  Perkins,  163  U.  S.  625,  41  L.  ed. 
287,  16  Sup.  Ct.  Rep.  1073;  Magoun  v.  Illi- 
nois Trust  &  Sav.  Bank,  170  U.  S.  283,  42 
L.  ed.  1037,  18  Sup.  Ct.  Rep.  504;  Knowlton 
T.  Moore,  178  U.  S.  41,  44  L.  ed.  060,  20 
Sup.  Ct.  Rep.  747;  Plummer  v.  Coler,  17& 
U.  S.  115,  44  L.  ed.  008,  20  Sup.  Ct.  Rep. 
820;  Murdock  v.  Ward,  178  U.  S.  130,  44 
L.  ed.  1000,  20  Sup.  Ct.  Rep.  775;  Orr  r. 
Gilman,  183  U.  S.  278,  46  L.  ed.  106,  22  Sup. 
Ct  Rep.  213;  Eidman  r.  Martinez,  184  U.  S. 
578,  46  L.  ed.  607,  22  Sup.  Ct.  Rep.  515; 
Moore  v.  Ruckgaber,  184  U.  S.  503,  46  L.  ed. 
705,  22  Sup.  Ct.  Rep.  521;  Blackstone  v. 
Miller,  188  U.  S.  180,  47  L.  ed.  430,  23  Sup. 
Ct.  Rep.  277 ;  Tilt  v.  Relsey,  207  U.  S.  43, 
52  L.  ed.  05,  28  Sup.  Ct.  Rep.  1;  Keeney  v. 
New  York,  222  U.  S.  525,  56  L.  ed.  200,  38 
LJIJI.(NJ3.)  1130,  32  Sup.  Ct.  Rep.  105. 

An  inheritance  tax  is  a  lawful  exercise  of 
the  taxing  power  only  when  some  necessary 
incident  of  the  transfer  transaction  depends 
for  its  efficacy  upon  the  law  of  the  state 
levying  the  tax.  Where  the  complete  trans- 
fer transaction  may  be  accomplished  with- 
out invoking  any  privilege  or  sanction  con- 
ferred by  the  laws  of  the  taxing  state,  and 
where  no  prohibition  of  the  laws  of  the 
taxing  state  could  prevent  the  accomplish- 
ment of  the  transfer  transaction,  then  the 
inheritance  tax  is  levied  upon  a  right  which 
is  purely  imaginary,  and  which  does  not 
exist  in  fact. 

Walker  v.  The  Treasurer,  221  Mass.  600, 
100  N.  E.  647 ;  Tilt  r.  Kelsey,  207  U.  S.  43, 
52  L.  ed.  05,  28  Sup.  Ct  Rep.  1;  Re  Howard, 
80  Vt.  480,  68  AtL  513 ;  Eidman  v.  Martines, 
184  U.  S.  578,  46  L.  ed.  607,  22  Sup.  Ct.  Rep. 
515. 

The  tests  suggested  in  Blackstone  v.  Mill- 
er  and  Eidman  r.  Martinet  will  determine 
whether  the  laws  of  Wisoonsin  apply  to  th* 
present  transfer  tranaaction.   Sm^^ma^ 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebu, 


consin  had  turned  back  the  current  of  legis- 
lation and  forbidden  such  an  assignment  in 
trust,  or  had  denied  the  right  to  transfer  at 
death  more  than  one  third  of  one's  prop- 
erty. This  could  not  have  affected  in  any 
manner  whatsoever  the  transfer  transaction 
imder  the  Illinois  assignment  in  trust,  or 
the  right  of  the  plaintiffs  in  error  to  re- 
ceive the  benefit  of  it.  Hence,  the  Wiscon- 
sin law  accorded  no  privilege  which  the 
state  could  tax. 

Blackstone  v.  Miller,  188  U.  S.  180,  47 
L.  ed.  439,  23  Sup.  Ct.  Rep.  277 ;  Eidman  v. 
Martinez,  184  U.  S.  578,  46  L.  ed.  607,  22 
Sup.  Ct.  Rep.  515;  Moore  v.  Ruckgaber,  184 
U.  S.  593,  46  L.  ed.  705,  22  Sup.  Ct.  Rep. 
521. 

Inasmuch  as  the  transfer  transaction  in 
this  case  could  be  carried  to  completion 
without  the  aid  of  the  Wisconsin  law,  there 
was  no  transfer  transaction  or  right  to  re- 
ceive property  under  the  Wisconsin  law. 
The  right  or  privilege  taxed  by  Wisconsin 
did  not  exist,  and  a  judgment  against  a 
citizen  of  the  United  States  for  a  tax  on 
something  which  does  not  exist  deprives 
him  of  his  property  without  due  process  of 
law  and  takes  his  private  property  for  pub- 
lic use  without  just  compensation. 

Union  Refrigerator  Transit  Co.  v.  Ken- 
tucky, 100  U.  S.  194,  50  L.  ed.  150,  26  Sup. 
Ct.  Rep.  36,  4  Ann.  Cas.  493;  Delaware,  L 
A  W.  R.  Co.  V.  Pennsylvania,  108  U.  S.  341, 
40  L.  ed.  1077,  25  Sup.  Ct.  Rep.  669;  Louis- 
ville &  J.  Ferry  Co.  v.  Kentucky,  188  U.  S. 
385,  47  L.  ed.  513,  23  Sup.  Ct.  Rep.  463; 
Metropolitan  L.  Ins.  Co.  v.  New  Orleans,  205 
U.  S.  395,  51  L.  ed.  853,  27  Sup.  Ct.  Rep. 
409;  State  Tax  on  Foreign-held  Bonds,  15 
Wall.  300,  21  L.  ed.  179;  Com.  v.  West 
India  Oil  Ref.  Co.  138  Ky.  828,  36  L.R.A. 
(N.S.)  295,  129  S.  W.  301;  Buck  v.  Beach, 
206  U.  S.  392,  51  L.  ed.  1106,  27  Sup.  a. 
Rep.  712,  11  Ann.  Cas.  732. 

It  is  not  sufficient  to  authorize  an  inherit- 
ance tax,  that  the  courts  of  a  state  are 
open  to  the  parties  interested  for  the  asser- 
tion of  their  rights  under  the  contract  by 
which  the  transfer  transaction  is  effected  at 
the  death  of  the  assignor.  This  is  a  priv- 
ilege which  the  laws  of  every  state  afford. 
If  the  mere  privilege  of  using  the  courts  of 
a  state  for  the  enforcement  of  the  transfer 
transaction  authorizes  an  inheritance  tax 
thereon,  every  state  could  tax  ^very  inherit- 
ance. If  Wisconsin  could  tax  this  transfer 
transaction,  so  could  Maine  and  California 
for  the  same  reason.  No  necessary  incident 
of  the  transfer  by  the  assignment  in  trust 
depends  for  its  efficacy  upon  the  law  of 
any  other  state  than  Illinois.  Hence,  no 
state  other  than  Illinois  can  levy  an  in- 
heritance tax  on  the  transaction. 
SZ2 


Walker  v.  The  Treasurer,  221  Mass.  600, 
109  K  E.  647. 

The  general  rule  that  personalty  in  a 
foreign  state  passes  by  the  law  of  the  dece- 
dent's domicil,  and  is  therefore  subject  to  a 
domiciliary  tax,  is  held  in  California,  sub- 
ject to  the  limitation  that  there  be  no  rule 
to  the  contrary  in  the  state  where  the  per- 
sonal property  is  actually  located. 

Re  Hodges,  170  CaL  402,  L.RJI.  1916A, 
837,  150  Pac.  344. 

Illinois  has  a  rule  to  the  contrary  where 
the  situs  of  such  personalty  has  been  fixed 
by  placing  it  permanently  in  the  state. 
The  imposition  of  the  Illinois  inheritance 
tax  on  the  foreign  bonds  and  stocks  here 
involved  proves  the  existence  of  such  rule, 
limiting  the  more  general  one  of  mohUia 
sequuntur  personam. 

People  V.  Griffith,  245  HI.  532,  92  N.  £. 
313. 

Real  estate  in  a  foreign  jurisdiction  is 
never  subject  to  an  inheritance  tax  at  the 
domicil  of  its  owner. 

Re  Swift,  137  N.  Y.  77,  18  L.ILA.  709,  32 
N.  E.  1096;  Bittinger's  Estate,  129  Pa.  338, 
18  Atl.  132;  Council  v.  Crosby,  210  HI.  380, 
71  N.  E.  350;  Orr  v.  Oilman,  183  U.  S.  278, 
46  L.  ed.  196,  22  Sup.  Ct.  Rep.  213. 

This  is  true,  because  (a)  the  title  is 
transferred  by  the  law  of  the  state  wherein 
the  land  lies;  (b)  the  law  of  the  state  of 
the  owner's  domicil  does  not  furnish  any 
factor  or  incident  necessary  to  the  efficacy 
of  the  transfer  of  title;  (c)  the  law  of  one 
state  cannot  control  the  transfer  of  land 
situated  in  another  state. 

Clarke  v.  Clarke,  178  U.  S.  186,  44  L.  ed. 
1028,  20  Sup.  Ct.  Rep.  873. 

If  the  inheritance  tax  is  upon  the  transfer 
transaction  or  right  to  receive  property, 
then  the  situs  of  the  thing  taxed  is  the  situs 
of  the  right  to  receive  the  property,  not  the 
situs  of  the  property  itself.  The  determin- 
ing factor  is  not  the  location  of  the  prop- 
erty, but  whether  the  beneficiary  came  into 
possession  of  it  through  the  exercise  of  a 
privilege  conferred  by  the  state. 

People  V.  Griffith,  supra. 

The  maxim  Mohilia  sequuntur  personam 
may  only  be  resorted  to  when  convenience 
and  justice  so  require.  It  is  not  allowed  to 
obscure  the  facts  when  the  facts  become 
important. 

Blackstone  t.  MiUer,  188  U.  S.  189,  47  L. 
ed.  439,  23  Sup.  Ct.  Rep.  277;  Metropolitan 
L.  Ins.  Co.  V.  New  Orleans,  205  U.  S.  395,  51 
L.  ed.  853,  27  Sup.  Ct.  Rep.  499;  Union  Re- 
frigerator Transit  Co.  v.  Kentucky,  199  U. 
S.  194,  50  L.  ed.  150,  26  Sup.  Ct.  Rep.  36,  4 
Ann.  Cas.  493. 

The  right  to  impose  an  inheritance  tax 
does  not  depend  directly  upon  the  situs  of 

S40  U.  8. 


1916. 


BULLEN  T.  WISCONSIN. 


the  property,  but  upon  the  law  under  which  |     The  levy  of  a  tax  by  Wieeonein  on  the 
it  it  tnnaiv^td.  |  amount  already  paid  for  the  inheritance  tax 


Taxatkm;"  "Situs  of  property/'  87  Cje. 
1564. 

The  general  rule  aa  to  taxation  is  that 
where  personalty  is  out  of  the  state  of  the 
owner's  domicil,  that  which  is  tangible  is 
taxable  where  it  is  located,  and  is  not  tax- 
able at  home.  That  which  is  intangible,  and 
therefore  likely  to  escape  foreign  taxation, 
has  its  situs  at  the  owner's  doinicil,  and  is 
taxable  there. 

Union  Beirigcrator  Transit  €k>.  t.  Ken- 
tucky, 199  U.  &  194,  60  L.  ed.  160,  26  Sup. 
Ot  Rep.  86,  4  Ann.  Cas.  493. 

There  is  a  well-recognised  exception  that 
not  only  tangible  property  located  in  a  state 
foreign  to  the  owner's  domicil,  but  intangi- 
ble property  so  located  and  held  there  for 
permanent  investment  or  use  in  business, 
has  its  situs  in  the  foreign  jurisdiction,  and 
is  taxable  there,  and  not  at  the  owner's 
domidL 

Metropolitan  L.  Ins.  Go.  v.  New  Orleans, 
206  U.  8.  896,  61  L.  ed.  863, 27  Sup.  Ct.  Bep. 
499;  Com.  y.  West  India  Oil  Ref.  Co.  138 
Ky.  828,  36  L.BJL(NJ3.)  296, 129  &  W.  301; 
Lewis's  EsUte,  203  Pa.  211,  62  AtL  206. 

The  situs  of  the  intangible  property  held 
by  the 'Northern  Trust  Company  was  in 
lUinois. 

Union  Befrigerator  Transit  Co.  v.  Ken- 
tucky, supra;  Delaware,  L.  &  W.  B.  Co.  v. 
Pennsylvania,  198  U.  S.  341,  49  L.  ed.  1077, 
26  Sup.  Ct  Bep.  669;  Metropolitan  L.  Ins. 
Co.  T.  New  Orleans  and  Com.  v.  West  India 
Oil  Bef .  Co.  supra. 

It  is  within  the  power  of  any  dtisen  of 
the  United  States  to  fix  the  situs  of  his 
personal  property  at  a  place  other  than  his 
domidL 

Delaware,  L.  ft  W.  B.  Co.  v.  Pennsyl- 
vania,  198  U.  8.  341,  49  L.  ed.  1077,  26  Sup. 
Ct.  Biep.  669;  Metropolitan  L.  Ins.  Co.  v. 
New  Orleans  and  Com.  v.  West  India  Oil 
Bef.  Co.  supra. 

The  Judgment  levying  the  Illinois  inherit- 
ance tax,  being  entitled  to  full  faith  and 
credit,  is  condusive  on  the  Wisconsin  courts 
as  to  the  law  under  which  the  transfer 
transaction  became  effeective. 

Connell  v.  Crosby,  210  HL  380,  71  N.  B. 
360;  Tilt  v.  Kdsey,  207  U.  S.  43,  62  L.  ed. 
96,  28  Sup.  Ct  B^.  1;  Be  Clark,  37  ^^ash. 
671,  80  Pac  267. 

llie  assignment  in  trust,  having  been 
made  upon  an  actual  consideration,  was  not 
a  gift,  but  a  valid  contract,  and  the  law 
taxing  it  impairs  the  obligation  of  the  oon- 
tract. 

Qelsthorpe  v.  Fumell,  20  Mont  299,  39 
UELA.  170,  61  Pac  267 ;  Chanler  v.  Kelsey, 
206  U.  S.  466, 61  L.  ed.  882,  27  Sup.  Ct  Bep. 
660. 
«•  Ii.  ad. 


in  Illinois  is  erroneous,  because  the  amount 
so  paid  never  passed  to  the  plaintiffs  in 
error.  A  tax  upon  this  deprives  them  of 
their  property  without  due  process  of  law. 
United  States  v.  Perkins,  163  U.  S.  626, 
41  L.  ed.  287,  16  Sup.  Ct.  Bep.  1073;  People 
V.  Bicfaardson,  269  UL  276,  109  N.  E.  1033. 

Mr.  Walter  Drew  argued  the  cause,  and, 
with  Mr.  Walter  C.  Owen,  Attorney  Gen- 
eral of  Wisconsin,  filed  a  brief  for  defend- 
ant in  error: 

The  deddon  of  the  highest  court  of  a 
state  as  to  the  construction  and  scope  of  a 
state  law  is  binding  upon  this  court. 

United  States  Exp.  Co.  v.  Minnesota,  223 
U.  S.  336,  66  L.  ed.  459,  32  Sup.  Ct.  Bep. 
211;  Jacobson  v.  Massachusetts,  197  U.  S. 
11,  24,  49  L.  ed.  643,  649,  26  Sup.  Ct.  Bep. 
358,  3  Ann.  Cas.  765. 

The  determination  of  questions  of  fact 
will  not  be  reviewed  here  upon  a  writ  of 
error  to  the  highest  court  of  the  state. 

Illinois  ex  reL  Dunne  v.  Economy  Light 
&  P.  Co.  234  U.  S.  497,  523,  524,  58  L.  ed 
1429,  1439,  34  Sup.  a.  Bep.  973 ;  Miedrdch 
V.  Lauenstein,  232  U.  S.  236,  243,  68  L.  ed. 
684,  689,  34  Sup.  Ot.  Bep.  309. 

This  court  will  not  examine  the  constitu- 
tionality of  a  state  statute  as  affecting  par- 
ties not  before  it. 

GUes  V.  Little,  134  U.  S.  646,  33  L.  ed. 
1002,  10  Sup.  Ct.  Bep.  623;  McNulta  v. 
Lochridge,  141  U.  S.  327,  36  L.  ed.  796,  12 
Sup.  Ct.  Bep.  11;  Engel  v.  O'Malley,  219 
U.  S.  128,  135,  65  L.  ed.  128,  135, 
31  Sup.  Ct.  Bep.  190;  Citizens'  Teleph. 
Co.  V.  Fuller,  229  U.  S.  322,  332,  67 
L.  ed.  1206,  1214,  33  Sup.  Ct.  Bep.  833; 
German  Alliance  Ins.  Co.  v.  Lewis,  233  U. 
S.  389,  418,  68  L.  ed.  1011,  1024,  L.BJL 
19150,  1189,  34  Sup.  a.  Bep.  612. 

It  is  the  well-settled  rule  in  this  court 
that  errors  not  pressed  and  relied  on  below 
are  conclusively  deemed  to  have  been 
waived, — ^that  when  the  decision  of  the 
highest  court  of  a  state  is  challenged  in 
error,  only  the  propositions  which  have 
been  called  to  its  attention  and  upon  which 
it  has  ruled  are  open  to  consideration,  and 
that  the  scope  of  review  here  cannot  be  en- 
larged by  assignments  of  error  to  include 
questions  not  efficiently  raised  in  the  court 
below. 

Cleveland  &  P.  B.  Co.  v.  Cleveland,  235 
U.  S.  50,  53,  59  L.  ed.  127,  128,  35  Sup.  Ct. 
Bep.  21;  Dewey  v.  Des  Moines,  173  U.  S. 
103,  199,  200,  43  L.  ed.  665,  666,  667,  19 
Sup.  Ct.  Bep.  379;  Montana  B.  Co.  v.  War- 
ren, 137  U.  S.  348,  351,  34  L.  ed.  681,  682, 
11  Sup.  Ct  Bep.  96;  Old  Jordan  Min.  & 
Mill.  Co.  V.  Soci6t4  Anonyme  des  Mines,  164 
68  8S 


629 


SUPREME  COURT  OF  THE  UNITED  STATES. 


OoT.  Tkem, 


U.  S.  261,  264,  41  L.  ed.  427,  428,  17  Sup. 
Ct.  Rep.  113;  Gila  Valley,  G.  ft  N.  R.  Co.  v. 
HuU,  232  U.  &  94,  68  L.  ed.  521,  34  Sup.  Ct. 
Rep.  229;  Erie  R.  Co.  v.  Purdy,  185  U.  S. 
148,  164,  46  L.  ed.  847,  850,  22  Sup.  Ct. 
Rep.  606;  Louieville  &  N.  R.  Co.  v. 
Woodford,  284  U.  S.  46,  58  L.  ed.  1202,  34 
Sup.  Ct.  Rep.  739;  Spies  v.  XUinoiB,  123  U. 
S.  181, 181,  31  L.  ed.  80,  91,  8  Sup.  Ct.  Rep. 
21. 

The  state  of  Wisoonsin,  in  imposing  this 
tax,  impaired  no  obligation  of  any  contract. 

Chanler  y.  Kelsey,  205  U.  S.  466,  478,  479, 
61  L.  ed.  882,  888,  889,  27  Sup.  Ct.  Rep.  550; 
Orr  ▼.  Gilman,  183  U.  S.  278,  288,  289,  46 
L.  ed.  196,  202,  22  Sup.  Ct.  Rep.  213. 

The  ri^t  of  the  owner  to  control  the 
devolution  of  his  property  after  his  death, 
and  of  the  legatee  or  heir  to  receive  prop- 
erty from  his  testator  or  ancestor,  is  not 
a  natural  right,  but  one  which  is  wholly 
created  and  conferred  by  statute  law,  and 
which  the  state  may  take  away  entirely  or 
conditionally  as  it  may  see  fit. 

Mager  y.  Grima,  8  How.  490,  493,  12  L. 
ed.  1168,  1170;  Magoun  v.  Hlinois  Trust  & 
Sav.  Bank,  170  U.  S.  283,  288,  42  L.  ed. 
1037,  1040,  18  Sup.  Ct.  Rep.  594;  United 
States  y.  Perkins,  163  U.  S.  625,  627,  628, 
41  L.  ed.  287,  288,  16  Sup.  Ct.  Rep.  1073; 
Knowlton  v.  Moore,  178  U.  S.  41,  55,  56,  44 
L.  ed.  969,  975,  976,  20  Sup.  Ct.  Rep.  747; 
Plummer  v.  Coler,  178  U.  S.  115,  137,  44  L. 
ed.  998,  1009,  20  Sup.  Ct.  Rep.  829. 

It  must  be  conceded  that,  if  this  transfer 
of  intangible  personal  property,  although 
held  in  a  foreign  state,  had  been  by  will  or 
intestate  law,  it  would  have  been  subject 
to  an  inheritance  tax  in  the  state  of  the 
domicil  upon  the  principle  mobUia  sequun- 
tur  personam, 

Keeney  v.  New  York,  222  U.  S.  525,  56 
L.  ed.  299,  38  L.RA.(N.S.)  1139,  32  Sup. 
Ct.  Rep.  105,  194  N.  Y.  281,  87  N.  E.  428; 
Re  Swift,  137  N.  Y.  77,  18  L.RJL,  709,  32 
N.  £.  1096;  Re  Coming,  3  Misc.  160,  23  N. 
Y.  Supp.  285;  Re  Cornell,  170  N.  Y.  423, 
63  N.  E.  445;  Re  Dingman,  66  App.  Div.  228, 
72  N.  Y.  Supp.  694;  Frothingham  v.  Shaw, 
175  Mass.  59,  78  Am.  St.  Rep.  475,  55  N.  £. 
623;  Gallup's  Appeal,  76  Conn.  617,  57  Atl. 
609;  Hopkins's  Appeal,  77  Conn.  644,  60 
Atl.  657;  Mann  y.  Carter,  74  N.  H.  346,  15 
L.RA.(N.S.)  160,  68  Atl.  130;  Re  Hartman, 
70  N.  J.  Eq.  664,  62  Atl.  660;  Lines's  Estate, 
155  Pa.  378,  26  Atl.  728;  Milliken's  Estate, 
206  Pa.  149,  55  Pac  853;  People  y.  Union 
Trust  Co.  255  HI.  168,  L.R  Jl.1915D,  450,  09 
N.  £.  377,  Ann.  Gas.  1913D,  514;  Douglas 
County  y.  Kountxe,  84  Neb.  506,  121  N.  W. 
593 ;  Eidman  v.  Martinez,  184  U.  S.  578,  46 
L.  ed.  697,  22  Sup.  Ct.  Rep.  515;  Moore  v. 
Ruckgaber,  184  U.  S.  593,  46  L.  ed.  705,  22 
Sup.  Ct.  Rep.  521 ;  Buck  v.  Beach,  206  U.  S. 
8S4 


392,  51  L.  ed.  1106,  27  Sup.  Ct  Rep.  712,  U 
Ann.  Cas.  732;  Hawley  y.  Maiden,  232  U.  S. 
1, 11,  12,  58  L.  ed.  477,  482,  483,  34  Sup.  Ct. 
Rep.  201. 

The  power  to  tax  successions  is  not  de- 
rived solely  from  state  grant  of  privilege  or 
state  ri^t  to  regulate,  but  is  fundamental. 

Knowlton  v.  Moore,  178  U.  S.  41,  56-61, 
44  L.  ed.  969,  97&-977,  20  Sup.  Ct.  Rep. 
747. 

While  no  case*  is  found  precisely  like  the 
instant  case  on  all  the  facts,  the  decision 
of  the  highest  court  of  the  state  in  this 
case  is  in  harmony  with  the  court  decisions 
in  similar  cases  in  other  jurisdictions,  and 
is  supported  in  principle  by  the  clear  weight 
of  authority. 

Keeney  v.  New  York,  222  U.  S.  525,  56  L. 
ed.  299,  38  LJtA.(N.S.)  1139,  32  Sup.  Ct. 
Rep.  105,  194  N.  Y.  281,  87  N.  E.  428; 
Countess  de  Noailles'  Estate  (Re  Helena) 
236  Pa.  213,  46  L.R.A.(N.S.)  1167,  84  AU. 
665;  Lines's  Estate,  155  Pa.  378,  26  AU. 
728;  People  v.  Union  Trust  Co.  255  111.  168, 
L.R.A.1915D,  450,  99  N.  E.  377,  Ann.  Cas. 
1913D,  514;  Douglas  Coimty  v.  Kountze,  84 
Neb.  606,  121  N.  W.  593;  Frothingham  v. 
Shaw,  175  Mass.  59,  78  Am.  St.  Rep.  475,  55 
N.  £.  623;  Gallup's  Appeal,  76  Conn.  617, 
57  Atl.  699;  Hopkins's  Appeal,  77  Conn.  644, 
60  Atl.  657;  Mann  v.  Carter,  74  N.  H.  345, 
15  L.RA.(N.S.)  150,  68  Atl  130;  Re  Hodges, 
170  Cal.  492,  LwR.A.1916A,  837,  160  Pac 
344. 

A  reversal  would  invite  wholesale  eva- 
sion of  the  inheritance  tax. 

Knoxville  &  0.  R.  Co.  v.  Harris,  99  Tenn. 
684,  53  LJI.A.  921,  43  S.  W.  115;  Re  Palmer, 
117  App.  Div.  360,  102  N.  Y.  Supp.  236;  Re 
Birdsall,  22  Misc.  180,  49  N.  Y.  Supp.  450, 
affirmed  in  43  App.  Div.  624,  60  N.  Y.  Supp. 
1133;  State  Street  Trust  Co.  v.  The  Treas- 
urer, 209  Mass.  379,  95  N.  £.  851. 

Mr.  Justice  Holmes  delivered  the  opin- 
ion of  the  court: 

This  is  a  proceeding  to  fix. the  inheritance 
tax  upon  the  estate  of  George  Bullen,  de- 
ceased, a  resident  of  Wisconsin.  The  su- 
preme court  of  the  state  afiirmed  a  judg- 
ment for  a  tax  upon  a  fund  of  nearly  a 
million  dollars  which  the  heirs  and  next  of 
kin  say  cannot  be  taxed  in  Wisconsin  with- 
out violating  the  14th  Amendment  and  the 
contract  clause  of  the  Constitution  of  the 
United  States.  143  Wis.  512,  139  Am.  St. 
Rep.  1114,  128  N.  W.  109. 

The  facts  are  simple.  Bullen  formerly 
had  lived  in  Chicago,  and  continued  to  do 
some  business  there  after  moving  to  Wis- 
consin, which  he  did  in  1892.  He  kept  in 
Chicago  the  bonds,  stocks,  and  notes  con- 
stituting the  fund,  and  in  10U2  conveyed 
them  to  the  Northern  Trust  Company  of 

240  U.  S. 


1915. 


BULLBN  T.  WISCONSIN. 


629-632 


that  city  upon  oortain  trusts.  In  1904,  by 
▼irtue  of  powers  reserved,  he  repossessed 
himself  of  the  fund,  but  in  1907  he  con- 
Teyed  it  to  the  company  upon  the  former 
trusts  again.  The  limitations,  so  far  as 
material,  were  of  relatively  small  sums  to 
a  sister  and  niece  residing  in  Massachusetts, 
and,  subject  to  those  gifts  of  one  third  of 
the  income  to  his  widow  for  life  and  the 
rest  of  the  income  and  the  principal  to  his 
four  sons.  But  the  instrument  contained- 
the  following  clause:  "Fifth.  I,  the  donor, 
expressly  reserve  the  right  to  direct  and 
control  the  disposition  of  the  said  trust 
property  and  estate,  to  revoke  and  vacate 
this  trust  at  any  time  during  my  life,  to 
enter  into  and  upon  and  take  possession  of 
the  same,  or  any  part  thereof,  to  require  a 
reconveyance  to  me  of  the  said  trust  prop- 
erty, or  any  part  thereof,  and  to  dispose  of 
it  as  I  may  see  fit.  During  my  lifetime  the 
principal  and  income  shall  be  used  for  such 
beneficiaries  [630]  and  in  such  manner  as 
I  may  from  time  to  time  appoint,  and  in 
default  of  any  appointment  during  my  life- 
time, and  at  all  events,  after  my  death,  the 
said  income  and  the  said  principal  shall  be 
applied,  paid  over  or  held  as  herein  pro- 
vided." It  also  declared  that  no  portion  of 
principal  or  income  should  be  paid  under 
some  of  the  leading  clauses  before  Bullen's 
death,  unless  by  his  direction.  In  fact,  he 
received  the  whole  income  during  his  life. 
The  supreme  court  held  that  an  inheritance 
tax  was  due  in  respect  of  the  whole  fimd 
as  upon  a  transfer  intended  to  take  effect 
in  enjoyment  after  the  donor's  death. 

The  deeds  of  trust  were  not  a  merely 
simulated  transaction.  Bullen  made  a  will 
shortly  after  the  first  transfer,  which  was 
of  similar  tenor,  but  which,  it  is  found, 
"has  not  been  probated,"  perhaps  because 
the  parties  relied  upon  the  deeds.  The  deeds 
transferred  title  and  they  had  «  purpose. 
Bullen  at  the  time  was  suffering  from  loco- 
motor ataxia,  his  wife  also  was  in  precari- 
ous health,  and  the  chief  instrument  con- 
templated the  possible  disability  of  both. 
The  ultimate  limitations  would  operate  un- 
less revoked,  which  they  were  not.  But 
Bullen,  as  has  been  seen,  reserved  an  abso- 
lute power  of  control  over  all  of  his  gifts, 
and  exercised  it  during  his  life  by  a  revo- 
cation (followed,  to  be  sure,  by  a  reconvey- 
ance upon  the  same  terms),  and  by  taking 
all  the  income  of  the  fund.  The  words  of 
liord  St.  Leonards  apply  with  full  force 
to  the  present  attempt  to  escape  the  Wis- 
consin inheritance  tax:  "To  take  a  dis- 
tinction between  a  general  power  and  a 
limitation  in  fee  is  to  grasp  at  a  shadow 
while  the  substance  escapes."  Sugden^  Pow- 
ers, 8th  ed.  396.  See  Oray,  Perpetuities, 
S  526b,  38t  ed.  pp.  334,  335.  We  do  not' 
60  li.  ed. 


speak  of  evasion,  because,  when  the  law 
draws  a  line,  a  case  is  on  one  side  of  it 
or  the  other,  and  if  on  the  safe  side  is  none 
the  worse  legally  that  a  party  has  availed 
himself  to  the  full  of  what  the  law  permits. 
When  an  act  is  condenmed  at  an  evasion, 
what  is  meant  is  that  it  [631]  is  on  the 
wrong  side  of  the  line  indicated  by  the  pol- 
icy if  not  by  the  mere  letter  of  the  law. 
What  we  do  say  is  that  the  supreme  court 
of  Wisconsin  was  fully  justified  in  treating 
Bullen's  general  power  of  disposition  as 
equivalent  to  a  fee  for  the  purposes  of  the 
taxing  statute,  that  there  is  no  constitu- 
tional objection  to  its  doing  so,  and  that 
although  Illinois  also  has  taxed  the  fund^ 
as  it  might,  we  are  not  aware  that  it  has 
attempted  to  qualify  the  effect  that  Wis- 
consin has  given  to  the  power,  and  do  not 
intimate  that  it  could  have  done  so,  if  it 
had  tried.  See  Hawley  v.  Maiden,  232  U. 
S.  1,  13,  58  L.  ed.  477,  483,  34  Sup.  Ct. 
Rep.  201. 

The  power  to  tax  is  not  limited  in  the 
same  way  as  the  power  to  affect  the  trans- 
fer of  property.  If  this  fund  had  passed  by 
intestate  succession,  it  would  be  recognized 
that  by  the  traditions  of  our  law  the  prop- 
erty is  regarded  as  a  univer8it€L9  the  suc- 
cession to  which  is  incident  to  the  succes- 
sion to  the  pergona  of  the  deceased.  As  the 
states  where  the  property  is  situated,  if 
governed  by  the  common  law,  generally 
recognize  the  law  of  the  domicil  as  deter- 
mining the  succession,  it  may  be  said  that, 
in  a  practical  sense  at  least,  the  law  of  the 
domicil  is  needed  to  establish  the  inherit- 
ance. Therefore  the  inheritance  may  be 
taxed  at  the  place  of  domicil,  whatever  the 
limitations  of  power  over  the  specific  chat- 
tels may  be,  as  is  especially  plain  in  the 
case  of  contracts  and  stock.  Blackstone  v. 
MiUer,  188  U.  S.  189,  204,  47  Lw  ed.  439. 
444,  23  Sup.  Ct.  Rep.  277;  Eidman  v.  Mar- 
tines,  184  U.  S.  578,  586,  589,  590,  592,  46 
L.  ed.  697.  702-705,  22  Sup.  Ct.  Rep.  515; 
Thomson  t.  Advocate  General,  12  Clark  & 
F.  1,  18,  21,  13  Sim.  153,  9  Jur.  217;  Froth- 
ingham  r.  Shaw,  175  Mass.  59,  78  Am.  St. 
Rep.  475,  55  N.  E.  623;  Re  Swift,  137  N.  Y. 
77,  88,  18  L.RJL.  709,  32  N.  E.  1096;  Mann 
V.  Carter,  74  N.  H.  845,  15  L.RJ^..(N.S.) 
150,  68  Atl.  130;  Hopkins's  Appeal,  77 
Conn.  644,  60  Atl.  657;  Hartman's  Case,  70 
K.  J.  £q.  664,  62  Atl.  560.  The  same  would 
be  true  of  a  universal  succession  established 
by  will,  and  the  notion  of  privity  or  identity 
of  person  that  is  recognized  li^  these  cases 
has  been  carried  over  to  more  limited  be- 
quests and  in  some  degree  to  'deeds.  Nor- 
cross  T.  James,  140  Mass.  188,  2  N.  E.  946. 
The  principle  that  allows  the  tax  is  to  be^ 
[632]  applied,  if  ever,  to  a  disposition  that 
operates  upon  the  great  mass  of  the  donor't. 


SUPREME  COUBI  OF  THE  UNITED  STATES. 


MUte,  Mid  thftt  t*kM  effect  onl^  npon  hia 
dMtli;  at  lewt,  M>  far  aa  concerna  the  p«r- 
•ooa  befora  this  court,  the  donor'a  wldonr 
utf  aona.  Llnea'a  EaUte,  166  Fa.  3T8,  28 
AtL  72S. 

It  ia  Buggeatcd  that  there  waa  a  aub- 
ardfnate  error  In  not  deducting  the  amount 
of  the  Illinoia  inheritance  tax.  But  thia 
appeara  not  to  Iultb  been  aaaigned  in  the 
appeal  to  the  Supreme  Court  o(  the  atate, 
and  therefore  we  need  not  inquire  whether 
there  waa  an;  conatitutional  obatacle  to  tht 
atate  of  Wiaconain  adopting  the  groaa  fund 
dlipoaed  of  rather  than  the  net  amount  re- 
ceived ai  the  meaaure  ol  the  tax. 

Judgment  affirmed. 


W.  E.  PEESCOTT. 

(See  8.  C.  Beporter's  ed.  S32-641.) 

Brror  to  state  oourt  —  Federal  qneatlon 
—  liability  ot  Interstate  carrier. 
1.  Whether  the  arriral  of  an  intersUte 
■hlpmetit  at  destination,  the  pajfrnent  of  the 
freight  by  the  conaignee,  hia  aignature  to  a 
receipt  for  the  ahipment,  and  hia  removal 
of  a  part  of  the  goods,  leaving  the  rest,  with 
the  carrier's  permiaaion,  to  meet  hia  con- 
venience in  removal,  diachareed  the  carrier'a 
contract  get  forth  in  the  bill  of  lading  is- 
aued  purauant  to  the  act  of  Febniarj  4, 
1887  [24  SUt  at  L.  376,  chap.  104),  as 
amended  hj  the  act  of  June  29,  190G  {34 
Stat,  at  L.  6S4,  chap.  3591,  Comp.  BUt. 
1S13,  $  8S03),  and  created  a  new  obligation 
aa  warebouaeman,  governed  bj  the  local  bw, 
which  casta  upon  the  wareh  ouaeman,  in  ease 
of  a  loea  by  Are.  the  burden  of  showing  that 
it  was  not  negligent, — is  a  Federal  question 
which  will  support  the  appellate  jurisdic- 
tion of  the  Federal  Supreme  Court  over  a 
aUte  court. 


Carriers  —  goTenunental  control  ^  ter- 
minal service. 

2.  The  retention  of  an  Interstate  ahip- 
ment by  a  carrier  aa  warehouseman  under 
the  bill  of  lading  which,  In  accordance  with 
the  published  regulation  a,  provides  that 
every  service  to  be  performed  under  it  shall 
tie  subject  to  the  conditions  apecifled,  among 


which  is  an  expreea  condition  governing  the 
carrier's  reaponsibility  aa  warehouseman 
for  property  not  removed  within  forty-eight 
hours  after  notice  of  arrival,  is  a  terminal 
service  forming  a  part  of  the  transporta- 
tion, in  the  sense  of  the  act  of  February  4, 
1887  (24  Stat,  at  L.  379,  chap.  104),  as 
amended  by  the  act  of  June  2S,  1000  (34 
SUt.  at  L.  664,  chap.  36S1,  Comp.  Stat 
1913,  J  8663),  and  le  governed  by  that  stat- 
ute. 
(For  other  eases,  see  Carrtera,  III.  a.  In  DInst 

Sap.  Ct  IWB,] 
Carriers  —  acreenient   varjlng  oondi- 

Uona  of  published  regalatlona  —  Urn- 

bllltjr   aa  warehousemen. 

8.  The  partlea  to  an  interatata  ship- 
ment may  not,  by  apecial  agreement,  alter 
the  conditiona  specified  in  the  bill  of  lading 
governing  the  carrier's  liability  when  a 
shipment  is  not  removed  within  forty-ei^t 
hours  after  notice  to  the  conaignee  of  iU 
arrival,  which  conform  to  the  oarrier's  pub- 
lished regulation* 
'For  otter 

Dlsnt  e 
Oarrlera  —  llabllltj  aa  warehonaomea  — 

pnbllslied  regnlatlona  —  local  law. 

4.  The  arrival  of  an  interatata  ship- 
ment at  destination,  the  payment  of  the 
freight  by  the  conaignee,  his  aignature  to  a 
receipt  for  the  shipment,  and  his  removal 
of  a  part  thereof,  leaving  the  rest,  with  the 
carrier's  permission,  to  await  hia  conven- 
ience in  removal,  did  not  discharge  the  car- 
rier'a liability  under  the  bill  of  lading  ia- 
■ued  purauant  to  the  act  of  February  4, 
1887  (24  SUt.  at  L.  379,  chap.  104),  as 
amended  by  the  act  of  June  29,  1904  (34 
SUt.  at  L.  6S4,  ehap.  3501,  Comp  Stat. 
1913,  g  8663),  nor  create  a  new  obligation 
as  warebouaeman,  governed  by  the  loc^  law, 
which  casts  upon  the  warehouseman,  in  case 
of  loss  by  fire,  the  burden  of  shawins  that 
it  was  not  n^Iigent,  where  the  bill  of  lad- 
ing, in  accordance  with  the  published  regu- 
lations, provided  that  every  service  to  be 
performed  under  it  should  be  subject  to  the 
conditions  specified,  among  which  waa  an 
express  condition  governing  the  carrier's  re- 
sponsibility as  warehouseman  for  property 
not  removed  within  forty-eight  houra  aitar 
notice  of  arrival. 

[For    other    cases,    an    Carrien,    II.    b,    I,    ta 

Dlgeat  Sup.  Ct.  1908.] 
Carriers  —  llabtlltj  aa  warelionaemen  ^ 

pnbllahed  regntattons  —  local  law. 

5.  The  meaaure  of  the  carrier's  liabil- 
ity aa  warehouseman  under  a  bill  of  lading 
for  an  interstate  shipment,  leaned  pnrsnant 
to  the  act  of  February  4,  1887  (24  Stat,  at 


Note. — On  the  general  aubjeeta  of  writs 
of  error  from  United  Statea  Supreme  Court 
to  atata  court*— see  notea  to  Martin  v.  Hun- 
ter, 4  L.  ed.  U.  S.  97;  Hamhiin  v.  Western 
Land  Co.  37  L.  ed.  U.  S.  267 ;  Be  Buchanan, 
St  L.  ed.  U.  B.  884  i  and  Kipley  r.  Illinois, 
•42  L.  ed.  U.  S.  9SS. 

On  how  and  when  questions  must  be 
raised  and  decided  in  a  atate  court  in  order 
to  malce  a  case  for  a  writ  of  error  from  the 
Supreme  Court  of  tba  United  SUtea — see 
•t« 


nota  to  Mutual  L.  Ins.  Co.  t.  McOrew,  63 
L.R.A.  33. 

On  right  of  carrier  to  termiaata  its  n- 
»>onsibility  as  warehouseman — aee  note  to 
Brunson  v.  Atlantic  Coast  Line  B.  Co.  9 
L.BA.(N.S.)    577. 

On  burden  of  proof  as  to  n^ligence  where 
property  is  destroyed  while  in  Uie  poaaea- 
sion  of  a  carrier  holding  as  a  waruouse- 
man— see  note  to  Yaioo  ft  M.  Valley  B. 
Co.  V.  Hughea,  22  L.B.A.(N.S.)  976. 

»49  V.  8. 


1016. 


SOUTHERN  B.  00.  t.  PRESCOTT. 


683,  634 


L.  379»  ehKp,  104),  as  amended  by  the  act 
of  June  29,  1906  (34  SUt.  at  L.  584,  chap. 
3501,  Comp.  Stat.  1913,  §  8503),  which,  in 
accordance  with  the  carrier's  published  reg- 
ulations, provided  that  every  service  to  be 
performed  under  it  should  be  subject  to  the 
conditions  specified,  among  which  was  an 
express  condition  governing  the  carrier's  re- 
sponsibility as  warehouseman  for  property 
not  removed  within  forty-eight  hours  lifter 
notice  of  arrival, — is  not  to  be  tested  by  the 
exceptional  rule  of  the  local  law,  placing 
the  burden  upon  a  warehouseman,  in  case 
of  loss  by  Are,  to  show  that  it  was  not  neg- 
ligent. 

[For   other   cases,   see   Carriers,   II.  h,   3,   tn 
Digest  Bap.  Ct  1908.] 

[No.  358.] 

Argued  February  23,  1916.    Decided  April 

10,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  South  Carolina  to  review  a  judg- 
ment which  affirmed  a  judgment  of  the  Cir- 
cuit Court  of  Edgefield  County,  in  that  state, 
in  favor  of  plaintiff  in  a  suit  by  a  consignee 
to  recover  for  the  loss  of  an  interstate  ship- 
ment while  in  the  possession  of  a  carrier 
After  arrival  at  destination.    Reversed. 

See  same  case  below,  99  S.  C.  422,  83  S. 
E.  781. 

The  facts  are  stated  in  the  opinion. 

Mr.  Frank  G.  Tompkins  argued  the 
eause,  and,  with  Mr.  Benjamin  L.  Abney, 
IQed  a  brief  for  plaintiff  in  error : 

The  rules  of  the  Federal  statutes  and 
Federal  decisions  govern  the  liability  of  the 
carrier  to  the  consignee. 

Charleston  ft  W.  C.  R.  Co.  v.  Vamville 
Furniture  Co.  237  U.  S.  597,  59  L.  ed.  1137, 
36  Sup.  Ct.  Rep.  715;  Boston  ft  M.  R.  Co.  v. 
Hooker,  233  U.  S.  97,  58  L.  ed.  868,  L.R.A. 
1915B,  450,  34  Sup.  Ct.  Rep.  526,  Ann.  Cas. 
1915D,  593;  Heyman  v.  Southern  R.  Co.  ^03 
U.  S.  271,  51  L.  ed.  178,  27  Sup.  Ct.  Rep. 
104,  7  Ann.  Cas.  1130;  Adams  Exp.  Co.  v. 
Kentucky,  206  U.  S.  136,  51  L.  ed.  991,  27 
Sup.  Ct.  Rep.  606;  Cleveland,  C.  C.  ft  St.  L. 
R.  Co.  V.  Dettlebach,  239  U.  S.  588,  ante, 
453,  36  Sup.  Ct  Rep.  177. 

When  the  state  courts  attempted  to  try 
the  case  under  state  laws  as  to  where  the 
burden  of  proof  rested,  there  was  a  contra- 
vention of  the  right  of  the  plaintiff  in 
error,  under  the  Federal  statutes  and  de- 
cisions. 

Memphis  ft  C.  R.  Co.  t.  Reeves,  10  Wall. 
176,  19  L.  ed.  909;  Cau  v.  Texas  ft  P.  R. 
Co.  194  U.  8.  427,  48  L.  ed.  1053,  24  Sup. 
Ct  Rep.  663,  16  Am.  Neg.  Rep.  659;  Clark 
V.  Barnwell,  12  How.  272,  13  L.  ed.  985; 
Western  Transp.  Co.  v.  Downer,  11  WalL 
129,  20  L.  ed.  160;  Central  Vermont  R.  Co. 
r.  White,  238  U.  S.  507,  59  L.  ed.  1433,  36 
«•  Ii.  ed. 


Sup.  Ct.  Rep.  865,  9  N.  C.  C.  A.  265;  Story, 
Bailm.  §  410;  Sweeney  v.  Erving,  228  U.  S. 
233,  57  L.  ed.  815,  33  Sup.  Ct.  Rep.  416, 
Ann.  Cas.  19149,  905;  Southern  Railway- 
Carolina  Div.  V.  Bennett,  233  U.  S.  80,  68 
L.  ed.  860,  34  Sup.  Ct.  Rep.  566;  Schmidt  v. 
Blood,  24  Am.  Dec.  153,  note. 

Mr.  J.  Willard  Ragsdale  argued  the 
cause,  and  Messrs.  W.  H.  Townsend  and 
J.  William  Thurmond  filed  a  brief  for  de- 
fendant in  error: 

The  findings  of  fact  by  the  supreme  court 
of  South  Carolina  will  not  be  reviewed  by 
this  court. 

Egan  V.  Hart,  165  U.  S.  188,  41  L.  ed. 
680,  17  Sup.  Ct.  Rep.  300;  Clipper  Min.  Co. 
V.  £U  Min.  ft  Land  Co.  194  U.  S.  220,  226, 
48  L.  ed.  944,  948,  24  Sup.  Ct  Rep.  632; 
Dower  v.  Richards,  151  U.  S.  658,  38  L.  ed. 
305, 14  Sup.  Ct.  Rep.  452,  17  Mor.  Min.  Rep. 
704;  Israel  v.  Arthur,  152  U.  S.  355,  38  L. 
ed.  474,  14  Sup.  Ct.  Rep.  586. 

At  the  time  of  the  fire  the  railway  com- 
pany held  the  freight  as  warehouseman  un- 
der a  separate  contract  from  that  of  trans- 
portation. The  consignee  paid  the  trans- 
portation charges  and  receipted  in  full  for 
the  whole  shipment,  and  actually  removed 
a  part  of  the  shipment. 

Stewart  v.  Central  R.  Co.  3  Ga.  App.  307, 
60  S.  E.  1;  Kenny  Co.  v.  Atlanta  ft  W.  P. 
R.  Co.  122  Ga.  365,  50  S.  E.  132.  See  also 
to  same  effect,  Lewis  v.  Louisville  ft  N.  R. 
Co.  26  LJLA.(NJS.)  038,  and  note,  135  Ky. 
361,  122  8.  W.  184,  21  Ann.  Oks.  527. 

Congress  has  no  power  to  regulate  purely 
internal  commerce  of  the  states. 

Howard  v.  Illinois  S.  R.  Co.  207  U.  S.  536, 
52  L.  ed.  324,  28  Sup.  Ct.  Rep.  141. 

If  a  Federal  question  is  involved,  the  judg- 
ment should  be  affirmed. 

Southern  Railway-Carolina  Div.  t.  Ben- 
nett, 233  U.  S.  80,  58  L.  ed.  860,  34  Sup.  Ct. 
Rep.  566;  Fleischman  v.  Southern  R.  Co.  76 
S.  C.  246,  0  LJtJl.(N.S.)  510,  66  S.  E.  074; 
Branson  v.  Atlantic  Coast  Line  R.  Co.  76 
S.  C.  0,  0  L.RJL(NJ3.)  577,  66  S.  £.  538; 
Sutton  V.  Southern  R.  Co.  82  S.  C.  345,  64 
S.  E.  401;  Wabash  R.  Co.  v.  Hayes,  234  U. 
S.  01,  68  L.  ed.  1230,  34  Sup.  Ct.  Rep.  720, 
6  N.  0.  C.  A.  224. 

Mr.  Justice  Hoglies  delivered  the  opin- 
ion of  the  court: 

This  action  was  brought  to  recover  for 
the  loss  of  nine  boxes  of  shoes  which  were 
destroyed  by  fire,  on  July  4,  1013,  [634] 
while  in  the  possession  of  the  Southern  Rail- 
way Company,  plaintiff  in  error.  These 
boxes  were  part  of  a  lot  of  thirteen  boxes 
which  had  been  shipped  on  June  21, 1013,  at 
Petersburg,  Virginia,  by  the  Seaboard  Air 
Line  Railway  and  connections,  consigned  to' 


6S4-6S6 


SUFRHOB  OOURT  OF  THK  UNITED  STATBS. 


Oof.  TkiM, 


W.  B.  Pretootty  defendant  in  error,  at  Edge- 
Held,  South  Carolina,  and  had  arrired  at 
Edgefield  over  the  line  of  the  Southern  Rail- 
way Company  on  June  23,  1913.  The  plain- 
tiff alleged  three  causes  of  action  against 
the  latter  company:  (1)  as  common-car- 
rier, (2)  as  wardiouseman,  and  (3)  for 
penalty  because  of  failure  to  adjust  and  pay 
the  claim,  after  notice,  as  provided  by  law. 
The  answer  of  the  railway  company,  with  a 
general  denial,  set  up  Uiat  the  shipment 
was  interstate  and  governed  by  the  act  to 
regulate  commerce.  At  the  close  of  the 
plaintiff's  case,  the  railway  company  moved 
for  a  nonsuit  and  decision  was  reserved. 
The  railway  company  then  put  in  evidence 
the  tariff  rules,  filed  with  the  Interstate 
Commerce  Commission,  which  governed  the 
shipment.  Thes$  provided  that  the  reduced 
rates  specified  would  "apply  on  property 
shipped  subject  to  the  condition  of  carrier's 
bill  of  lading,"  and  that  otherwise  there 
would  be  an  increased  charge,  as  stated. 
One  of  the  stipulations  of  the  bill  of  lading 
was  that  "property  not  removed  by  the 
party  entitled  to  receive  it  within  forty- 
eight  hours  (exclusive  of  legal  holidays) 
after  notice  of  its  arrival"  might  be  kept 
in  car,  depot,  or  warehouse,  "subject  to  rea- 
sonable charge  for  storage  and  to  carrier's 
responsibility  as  warehouseman  only."  The 
freight  bill  contained  the  provision:  "De- 
murrage and  storage  will  be  assessed  at  the 
expiration  of  the  free  time  provided  by  the 
rules  of  this  company." 

The  agent  for  the  railway  company  (con- 
firming what  had  been  said  by  the  plain- 
tiff's witness)  testified  that  after  notice  of 
the  arrival  of  the  goods,  the  consignee  had 
paid  the  entire  frei<i;ht  charges,  that  he  (the 
company's  agent)  'liad  accepted  the  freight" 
and  had  the  consignee's  [635]  "receipt  for 
the  goods."  Four  boxes  were  then  taken 
away,  and  the  rest  were  permitted  to  re- 
main to  meet  the  consignee's  convenience  in 
removal.  The  agent  further  testified:  "Q. 
What  was  the  agreement  with  reference  to 
holding  those  goods?  A.  He  just  wanted  to 
know  if  it  would  be  agreeable  to  leave  them 
there,  and  I  said  it  would  be.  Q.  You  did 
not  make  any  charges  for  storing  them  f  A. 
No,  sir.  Q.  And  did  not  expect  him  to  pay 
anyT  No.  sir."  The  consignee's  representa- 
tive had  testified  that,  while  nothing  had 
been  said  on  the  point,  he  expected  to  pay 
storage. 

At  the  close  of  the  testimony,  the  plain- 
tiff withdrew  his  causes  of  action  against  [ 
the  defendant  as  common  carrier  and  for 
the  penalty,  and  the  case  went  to  the  jury 
solely  with  respect  to  the  liability  of  the 
defendant  as  warehouseman.  The  railway 
company  moved  for  a  direction  of  a  verdict 
upon  the  ground  that,  under  the  Federal 


act  and  the  tariff  regulations,  the  bill  of 
lading  defined  the  rights  of  the  parties. 
The  motion  was  denied.  The  trial  court  sub- 
mitted to  the  jury'  the  question  of  liability 
for  the  care  of  the  goods  as  one  arising  un- 
der the  state  law,  which  cast  upon  the  de- 
fendant the  bnrdoi  of  showing  that  it  was 
not  negligent.  The  position  of  the  railway 
company,  as  shown  by  its  Requests  for  in- 
structions which  were  denied,  was  that  the 
shipment  had  not  lost  its  interstate  char- 
acter; that  the  provisions  of  the  bill  of 
lading  were  controlling;  that  the  defend- 
ant's liability  as  warehouseman  was  gov- 
erned by  Federal  law;  and  that  the  burden 
was  upon  the  plaintiff  to  show  negligence 
as  a  basis  for  recovery. 

Judgment  upon  a  verdict  in  favor  of  the 
plaintiff  was  affirmed  by  the  supreme  court 
of  the  state.  99  S.  C.  422,  83  8.  E.  781. 
With  respect  to  the  Federal  question,  the 
court  said:  "The  defendant  claims  that, 
inasmuch  as  this  is  an  interstate  shipment, 
the  Federal  statute  governs.  This  question 
does  not  legitimately  arise  in  this  case  for 
the  reason  [636]  that  the  appellant  moved 
for  a  nonsuit  on  the  ground  that  the  evi- 
dence here  shows  that  this  freight  arrived 
here  on  the  23d  of  June  and  that  the  freight 
was  paid  and  receipted  for  by  the  agent  of 
Dr.  Presoott.  He  came  for  it  and  paid  the 
freight,  and  I  submit  that  where  a  commcm 
carrier  delivered  freight  in  good  order,  and 
has  it  in  its  depot  and  paid  for,  then  its 
liability  as  a  common  carrier  ceases.'  The 
court  reserved  its  decision  on  that  question 
and  before  it  was  announced,  the  plaintiff 
withdrew  the  cause  of  action  against  de- 
fendant as  common  carrier  and  also  the 
cause  of  action  for  the  penalty.  It  there- 
fore being  conceded  in  the  circuit  court  that 
the  contract  of  carriage  was  ended,  and  the 
appellant  held  the  goods  by  a  separate  con- 
tract, the  question  as  to  appellant's  liabil- 
ity as  common  carrier  and  the  Federal  stat- 
ute under  which  it  might  have  arisen  is  not 
before  this  court,  and  the  only  question 
argued  which  we  can  consider  is  the  ques- 
tion as  to  warehouseman."  The  court  then 
applied  the  rule  of  liability  as  defined  by 
the  state  law.  Id.  p.  424.  And  this  writ 
of  error  has  been  prosecuted. 

As  the  shipment  was  interstate,  and  the 
bill  of  lading  was  issued  pursuant  to  the 
Federal  act,  the  question  whether  the  con- 
tract thus  set  forth  had  been  discharged  was 
necessarily  a  Federal  question.  The  refer- 
ence, above  quoted,  to  the  concession  in  the 
trial  court,  cannot  be  taken  to  mean  that 
this  Federal  question  was  not  raised,  for, 
as  we  have  seen,  it  was  distinctly  presented 
and  pressed ;  but  we  assume  that  the  ruling; 
in  substance,  was  that  there  was  ho  dispute 
as  to  the  fsict  that  the  goods  had  arrived^ 

S46  V.  6. 


1916. 


SOUTHERN  R.  CO.  ▼.  PRE6C0TX. 


636-630 


tiiat  the  coTKjgnee  had  paid  tha  freight  and 
aigned  a  reoeipt  for  the  goods,  and  that  the 
Bine  hoxea  had  remained  in  the  poaeeasion 
of  the  carrier  under  the  permieeion  gi^en, 
as  testified,  by  the  carrier's  agent.  The 
questicm  ia  whether  this  admitted  transac- 
tion had  the  legal  effect  of  discharging  the 
contract  governed  by  Federal  law,  and  of 
creating  a  new  obligation  gotemed  by  state 
law. 

[637]  By  the  act  to  regulate  commerce 
(§1)  the  "transportation"  it  regulates  is  de- 
fined as  induding  "all  services  in  connecticm 
with  the  receipt,  delivery,  elevation,  and 
tranafer  in  transit,  ventilation,  refrigeration 
or  icing,  storage,  and  handling  of  property 
transported."    [34  Stat,  at  L.   684,  chap. 
3501,  Oomp.  SUt.  1913,  §  8563.]   It  ia  made 
the  duty  of  the  carrier  "to  provide    .    .    . 
such  transportation  upon  reasonable  r^uest 
therefor."    All  charges  made  for  "any  serv- 
ice" rendered  in  such  transportation  must 
be  "just  and  reasonable."     Section  6   re- 
quires that  the  earrier's  sdiedules,  printed 
as  provided,  "shall  contain  the  classification 
of   freight  in  force,  and   shall   also  state 
separately    all    terminal    charges,    storage 
charges,  icing  charges,  and  all  other  charges 
which  the  Commission  may  require,  all  priv- 
ileges or  facilities  granted  or  allowed  and 
any  rules  or  regulations  which  in  any  wise 
change,  affect,  or  determine  any  part  or  the 
aggregate  of  such  aforesaid  rates,  fares,  and 
charges,  or  the  value  of  the  service  rendered 
to   the   passenger,   shipper,   or  consignee." 
And  it  is  further  provided,  in  the  same  sec- 
tion, that  no  carrier  shall  "extend  to  any 
shipper  or  person  any  privileges  or  facilities 
in  the  transportation" — that  is,  as  defined — 
"except  such  as  are  specified  in  such  tariffs." 
The  bill  of  lading  in  accordance  with  the 
published  regulations  provided  that  "every 
service"  to  be  performed  under  it,  including 
the  service  of  the  ccmnecting  or  terminal  car- 
rier,  should  be  subject  to  the  conditions 
specified,  and  anumg  these  was  the  express 
condition  governing  the  company's  responsi- 
bility as  warehouseman  for  property  not  re- 
moved within  forty-eight  hours  after  notice 
of  arrivaL    Such  a  retention  of  the  goods 
was  undoubtedly  a  terminal  service  form- 
ing a  part  of  the  "transportation"  in  the 
seiiBe  of  the  Federal  act  and  governed  by 
that  act.    Thus,  in  the  case  of  Cleveland, 
0.  C.  &  St.  L.  R.  Co.  V.  Dettlebach,  239  U. 
&  588,«ante,  453,  36  Sup.  Ct.  Rep.  177,  it 
was  held,  with  respect  to  goods  lost  through 
the  negligence  of  the  terminal  carrier  while 
in  possession  as  warehouseman  under  this 
stipulation,  that  the  provision  [638]  of  the 
bin  of  lading  limiting  liability  to  the  de- 
clared value  of  the  goods  waa  applicable. 
The  eonrt  deemed  it  to  be  evident  "that 
Oongreaa  recognised  that  the  duty  of  car* 
••  I«.  eO. 


riers  to  the  public  included  the  perform- 
ance of  a  variety  of  services  that,  accord- 
ing to  the  theory  of  the  common  law,  were 
separable  from  the  carrier's  service  as  car- 
ier,  and.  In  order  to  prevent  overcharges 
and  discriminations  from  being  made  un- 
der the  pretext  of  performing  such  addi- 
tional services,  it  enacted  that  so  far 
as  interstate  carriers  by  rail  were  con- 
cerned, the  entire  body  of  such  services 
riiould  be  included  together  under  the 
single  term  transportation,'  and  subjected 
to  the  provisions  of  the  act  respecting  rea- 
sonable rates  and  the  like."  It  is  also  clear 
that,  with  respect  to  the  service  governed 
by  the  Federal  statute,  the  parties  were  not 
at  liberty  to  alter  the  terms  of  the  service 
aa  fixed  by  the  filed  regulations.  This  has 
repeatedly  been  held  with  respect  to  rates 
(Texas  &  P.  R.  Co.  v.  Mugg,  202  U.  8.  242, 
50  L.  ed.  1011,  26  Sup.  Ct.  Rep.  628;  Kan- 
sas City  Southern  R.  Co.  v.  Carl,  227  U. 
S.  639,  652,  57  L.  ed.  683,  688,  33  Sup.  Ct. 
Rep.  391 ;  Boston  &.  M.  R.  Co.  v.  Hooker, 
233  U.  S.  97,  112,  58  L.  ed.  868,  876,  L.RA. 
1915B,  450,  34  Sup.  Ct.  Rep.  526,  Ann.  Cas. 
1915D,  593;  Louisville  &  N.  R.  Co.  v.  Max- 
weU,  237  U.  S.  94,  59  L.  ed.  853,  L.R.A. 
1915E,  665,  P.U.R.1915C,  300,  35  Sup.  Ct. 
Rep.  494),  and  the  established  principle 
applies  equally  to  any  stipulation  attempt- 
ing to  alter  the  provisions  aa  fixed  by  tiie 
published  rules  relating  to  any  of  the  serv- 
ices within  the  purview  of  the  act.  Chicago 
&  A.  R.  Co.  V.  Kirby,  225  U.  S.  155,  166, 
56  L.  ed.  1033,  1038,  32  Sup.  Ct.  Rep.  648, 
Ann.  Cas.  191 4A,  501;  Atchison,  T.  k  S.  F. 
R.  Co.  V.  Robinson,  233  U.  S.  173,  181,  58 
L.  ed.  901,  905,  34  Sup.  Ct.  Rep.  556.  This 
is  the  plain  purpose  of  the  statute  in  order 
to  shut  the  door  to  all  contrivances  in  viola- 
tion of  its  provisions  against  preferences 
and  discriminations.  No  carrier  may  ex- 
tend "any  privileges  or  facilities,"  save  as 
these  have  been  duly  specified.  And  as  the 
terminal  services  incident  to  an  interstate 
shipment  are  within  the  Federal  act,  and  the 
ccmditions  of  liability  while  the  goods  are 
retained  after  notice  of  arrival  are  stipulated 
in  the  bill  of  lading  under  the  filed  regula- 
tions, the  conditions  thus  fixed  are  control- 
ling, and  the  parties  cannot  substitute  there- 
for a  special  agreement. 

[639]  In  determining,  in  this  view, 
whether  the  contract  had  been  discharged, 
and  the  case  removed  from  the  operation  of 
the  Federal  act,  regard  must,  of  course,  be 
had  to  the  substance  of  the  transaction.  The 
question  is  not  one  of  form,  but  of  actuality. 
Texas  &  N.  0.  R.  Co.  v.  Sabine  Tram  Co.  227 
U.  S.  Ill,  126,  57  L.  ed.  442,  448,  33  Sup.  Ct. 
Rep.  229;  Railroad  Commission  v.  Texas 
ft  P.  R.  Co.  229  U.  S.  336,  341,  57  L.  ed. 
1215^  1218,  33  Sup.  Ct  Beg.  837;  Illinois 


639-641 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TkBM, 


0.  R.  Co.  T.  De  Faentes,  286  U.  S.  167,  163, 
59  L.  ed.  617,  619,  P.U.R.1916A,  840, 
36  Sup.  Ct.  Rep.  276;  PennByWaiiia  R. 
Co.  T.  Clark  Bros.  Coal  Min.  Co.  238 
U.  S.  466,  468,  59  L.  ed.  1406,  1408, 
36  Sup.  Ct.  Rep.  896.  It  is  apparent  that 
there  had  been  no  actual  delivery  of  the 
nine  boxes.  The  payment  of  the  freight 
had  no  greater  efficacy  than  if  it  had  been 
made  in  advance  of  the  transportation.  The 
giving  of  a  receipt  for  the  goods  by  the  con- 
signee did  not  alter  the  fact  that  they  were 
still  held  by  the  railway  company,  awaiting 
actual  delivery.  The  transaction  at  most 
could  not  be  deemed  to  accomplish  more 
than  if  the  parties  had  agreed  tliat,  until 
such  delivery,  the  goods  should  be  held  un- 
der a  special  contract,  in  lieu  of  the  pre- 
scribed conditions,  and  this  they  could  not 
effect  without  violating  the  act  which  gov- 
erned the  shipment.  It  could  not  be  said, 
for  example,  that  while  under  the  filed  regu- 
lations the  railway  company  was  to  make 
a  "reasonable  charge  for  storage"  pending 
delivery,  that  it  could  agree  with  a  particu- 
lar shipper,  or  consignee,  to  hold  gratui- 
tously; nor  could  it  alter  the  terms  of  its 
responsibility  while  the  goods  remained  un- 
delivered. The  actual  service  in  holding  the 
goods  continued,  and  we  must  look  to  the 
bill  of  lading  to  determine  the  legal  obliga- 
tion attaching  to  that  service. 

Viewing  the  contract  set  forth  in  the  bill 
of  lading  as  still  in  force,  the  measure  of 
liability  under  it  must  also  be  regarded  as 
a  Federal  question.  As  it  has  often  been 
said,  the  statutory  provisions  manifest  the 
intent  of  Congress  that  the  obligation  of 
the  carrier  with  respect  to  the  services  with- 
in the  purview  of  the  statute  shall  be  gov- 
erned by  uniform  rule  in  the  place  of  the 
diverse  requirements  [640]  of  state  legisla- 
tion and  decisions.  Adams  Exp.  Co.  t.  Cron- 
inger,  226  U.  S.  491,  606,  609,  610,  67  L.  ed. 
314,  320-322,  44  L.ILA.(N.S.)  267,  33  Sup. 
Ct.  Rep.  148;  Missouri,  K.  &  T.  K.  Co.  v. 
Harriman,  227  U.  S.  667,  672,  67  L.  ed.  600, 
696,  33  Sup.  Ct.  Rep.  897;  Boston  &  M.  R. 
Co.  V.  Hooker,  233  U.  S.  97,  112,  68  L.  ed. 
868,  876,  LJIA.1916B,  460,  Ann.  Oas.  1916D, 
698;  Missouri,  K.  ft  T.  R.  Co.  v.  Harris, 
234  U.  S.  412,  420,  68  L.  ed.  1377,  1382, 
LJLA.1916E,  942,  34  Sup.  Ct.  lU^.  790; 
Charleston  k  W.  C.  R.  Co.  t.  Vamville 
Furniture  Co.  237  U.  S.  697,  603,  69  Lw  ed. 
1137,  1139,  35  Sup.  Ct.  Rep.  716;  Cleveland 
C.  C.  ft  St.  L.  R.  Co.  V.  Dettlebach,  supra; 
New  York  P.  ft  N.  R.  Co.  v.  Peninsula  Pro- 
duce Ezch.  240  U.  S.  84,  ante,  611,  36  Sup. 
Ct.  Rep.  230.  And  the  question  as  to  the 
responsibility  under  the  bill  of  lading  is 
none  the  less  a  Federal  one  because  it  must 
be  resolved  by  the  application  of  general 
principles  of  tiie  common  law.  Adams  Exp. 
S40 


Co.  T.  Croninger  and  Missouri  K.  ft  T.  R. 
Co.  V.  Harriman,  supra.    It  was  explicitly 
provided  that  in  case  the  property  was  not 
removed  within  the  specified  time,  it  should 
be  kept,  subject  to  liability  "as  warehouse- 
man   only."     The    railway    company    was 
therefore  liable  only  in  case  of  negligence. 
The    plaintiff,   asserting  neglect,    had    the 
burden  of  establishing  it.    This  burden  did 
hoi  shift.    As  it  is  the  duty  of  the  ware- 
houseman to  deliver  upon  proper  demand, 
his  failure  to  do  so,  without  excuse,  has 
been   regarded   as   making  a   prima   fade 
case  of  negligence.    If,  however,  it  appears 
that  the  loss  is  due  to  fire,  that  fact  in  it- 
self, in  the  absence  of  circumstances  per- 
mitting the  inference  of  lack  of  reasonable 
precautions,  does  not  suffice  to  show  neglect, 
and  the  plaintiff,  having  the  affirmative  of 
the  issue,  must  go  forward  with  the  evi- 
dence.    Cau  V.  Texas  ft  P.  R.  Co.  194  U. 
S.  427,  432,  48  L.  ed.  1063,  1067,  24  Sup. 
Ct  Rep.  663,  16  Am.  Neg.  Rep.  669;  West- 
em  Transp.  Co.  v.  Downer,  11  WalL  129, 
136,  20  L.  ed.  160,  161;  DeGrau  v.  WUson, 
17  Fed.  698,  700,  701,  affirmed  in  22  Fed. 
560;  Claflin  v.  Meyer,  76  N.  Y.  260,  262, 
263,  31  Am.  Rep.  467;  Whitworth  v.  Erie 
R.  Co.  87  N.  Y.  413,  419,  420;  Draper  v. 
Delaware  ft  H.  Canal  Co.  118  N.  Y.  122, 
123,  23  N.  E.  131;  St.  Louis,  I.  M.  ft  &  R. 
Co.  V.  Bone,  52  Ark.  26,  11   S.  W.  968; 
Lyman  v.  Southern  R.  Co.  132  N.  C.  721, 
44  S.  E.  660;  Lancaster  Mills  v.  Merchants' 
Cotton-Press  ft  Storage  Co.  89  Tenn.  1,  24 
Am.  St.  Rep.  686,  14  S.  W.  317;  NaUonal 
Line  S.  S.  Co.  v.  Smart,  107  Pa.  492;  Den- 
ton  V.    Chicago,    R.    I.   ft    P.   R.    Co.    62 
Iowa,     161,     36     Am.     Rep.     263,     2    N. 
W.  1093;  [641]  Cox  v.  Central  Vermont  R. 
Co.   170  Mass.   129,  49   N.   E.   97;    Yasoo 
ft  M.  Valley  R.  Co.  ▼.  Hughes,  94  Miss. 
242,  22    L.ILA.(N.S.)     976,    47    So.    662; 
24  Am.  Dec  160-153,  note;  22  L.RA.(NJ3.) 
note,  pp.  976-980.    In  the  present  case,  it 
is  undisputed  that  the  loss  was  due  to  fire 
which  destroyed  the  company's  warehouse 
with  its  contents,  including  the  property 
in  question.    The  fire  occurred  in  the  early 
morning  when  the  depot  and  warehouse  were 
closed.    The  cause  of  the  fire  did  not  mp» 
pear,  and  there  was  nothing  in  the  circum- 
stances to  indicate  neglect  on  the  part  of 
the  railway  company.    The  trial  court  de- 
nied the  motion  for  a  direction  of  a  verdict^ 
and  charged  the  jury  that  "the  burden  of 
showing  that  there  was  no  negligence  is 
on  the  defendant."    Applying  the  rule  es- 
tablished by  the  state  decisions   (Brunaoa 
V.  Atlantic  Coast  Line  R.  Co.  76  S.  C.  9,  9 
LJt.A.(N.S.)    677,  66  S.  E.  638;    Fleisch- 
man  v.  Southern  R.  Co.  76  S.  C.  237,  9 
L.RA..(N.S.)    619,  66  S.  E.  974;   see  also 
Wardlaw  ▼.  South  Carolina  R.  Co.  11  Rich. 

240  U.  S. 


1915. 


FAIRBANKS  STEAM  SHOVEL  CX).  v.  WILLS. 


641,  642 


L.  S37)»  the  lupreme  court  of  the  itate 
Ofvemiled  the  defendant's  objection  and  iim- 
taiaed  the  judgment.  99  S.  C.  p.  424.  It 
baa  been  recognized  by  the  state  court,  as 
WIS  said  in  the  Fleischman  Case,  supra, 
that  the  rule  it  applies  is  a  "somewhat  ex- 
flspticmal  rule"  to  which  the  court  adheres 
''luytwithstanding  the  great  number  of  op- 
posing authorities  in  other  jurisdictions." 
7t  S.  C.  p.  248. 

For  the  reasons  we  have  stated,  we  think 
that  the  obligaticm  of  the  railway  company 
WM  not  governed  by  the  state  law,  and  that, 
in  this  View,  the  exceptions  of  the  plaintiff 
in  error  were  well  taken. 

Judgment  reyersed. 


[642]     FAIRBANKS     STEAM    SHOVEL 

COMPANY,  Appt., 

▼. 

WILLIAM  V.  WILLS,  Trustee  in  Bank- 
ruptcy of  Federal  Contracting  Company. 

(See  S.  C.  Reporter's  ed.  642-649.) 

Ohattol  mortgmge  —  acknowledging  and 
recording  —  residence  of  mortgagor  — 
principal  office  of  corporation. 

1.  The  county  in  which  the  principal 
office  of  the  corporate  mortgagor  is  located 
by  its  certificate  of  incorporation  is,  un- 
less changed  by  formal  action,  the  residence 
of  the  mortgagor  within  the  meaning  of  the 
requirement  of  Hurd's  HI.  Rev.  Stat.  1909, 
chap.  95,  that  a  chattel  mortgage,  not  ac- 
conipanied  by  a  change  of  possession,  shall 
bs  invalid  as  against  third  persons  unless 
acknowledged  and  recorded  m  the  county 
where  the  mortgagor  resides. 

[For  other  csBes,  see  Chattel  Mortgage,  III., 
In  Digest  Sup.  Ct.  1908.] 

Estoppel  —  of  trustee  In  bankruptcy  — 

.attacking  chattel  mortgage  of  bank- 

mpt. 

2.  The  equities,  if  any,  arising  out  of 
the  representation  by  the  corporate  chattel 
mortgagor,  contrai^  to  fact,  that  its  prin- 
cipal place  of  business  was  in  a  specified 
county,  or  out  of  the  fact  that  the  mortsage 
was  given  to  secure  a  part  of  the  purchase 
price  of  the  chattel  covered  by  it»  could  not 
operate  to  estop  the  mortgagor's  trustee  in 
bankruptcy  from  asserting  that  the  mort- 

Ege  was  invalid  as  to  him  because  not  ac- 
owledged  or  recorded  in  the  county  where 
the  mortffaffor  resides,  as  is  required  by 
Hurd's  111.  Rev.  Stat.  1909,  chap.  95,  when 
not  accompanied  by  a  change  of  possession. 
In  order  to  be  valid  as  a^^dnst  third  per- 
sons. 

[For  other  esses,  see  Bstoppel,  HI.  d,  in  Digest 
8up.  Ct.  1908.1 

V^ederal    courts  —  proper    district    for 
•nit  —  consent  to  Jurisdiction. 

8.  The  chattel  mortgagee  of  a  bank- 

KOTK^ — As  to  proper  Federal  district  for 
suit— aee  note  to  Roberts  y.  Lewis,  86  L. 
sd.  U.  S.  579. 
••  li.  ed. 


rupt  corporation,  by  answering  and  making 
defense  upon  the  merits,  consents  to  the 
jurisdiction  of  a  Federal  bankruptcy  court 
of  a  district  other  than  that  of  the  bank- 
rupt's residence  to  entertain  a  petition  filed 
in  the  bankruptcy  proceedings,  m  which  the 
invalidity  of  the  mortgage  as  against  the 
trustee  in  bankruptcy  is  asserted,  because  it 
was  not  filed  and  recorded  in  the  county 
where  the  bankrupt  resides. 
[For  other  cases,  see  Courts,  988-941S,  In 
Digest  Sap.  Ct.  1908.] 

Judgment  —  collateral  attack  —  adjudi- 
cation of  bankruptcy. 

4.  An  adjudication  of  bankruptcy  is 
not  open  to  collateral  attadc. 

[For  other  esses,  see  Judgment,  IIL  L  2,  in 
Digest  Sup.  Ct  1908.) 

Appeal  —  qnestlona  waived  below. 

5.  The  question  of  the  capacity  of  a 
trustee  in  bankruptcy  to  sue  in  the  bank- 
ruptcy court  to  recover  possession  of  prop- 
erty taken  by  the  mortgagee  under  a  chat- 
tel mortgage  made  by  the  buikrupt,  upon 
the  ground  that  the  mo]rtgage  was  not  prop- 
erly acknowledged  and  recorded,  is  waived 
when  not  taken  in  the  trial  court. 

[For  other  cases,  see  Appeal  and  Error,  VIII. 
j.  In  Digest  Sup.  Ct.  l908.] 

Bankruptcy  —  title    of    trustee  —  rela- 
tion. 

'  6.  The  title  of  the  chattel  mortgagee  of 
a  bankrupt  corporr.tion  could  not  be  per- 
fected as  against  the  trustee  in  bankruptcy, 
who  asserts  the  invalidity  of  the  mortgage 
as  against  him  because  not  properly  ac- 
knowledged and  recorded,  by  taking  posses- 
sion of  the  chattel  under  the  mortgage  after 
the  filing  of  the  petition  in  iMinkruptcy  and 
before  the  adjudication,  in  view  of  the  pro- 
visions of  the  bankrupt  act  of  July  1, 
1898  (30  SUt.  at  L.  557,  chi^.  541),  S 
47a-2,  as  amended  by  the  act  of  June  25, 
1910  (36  Stat,  at  L.  840,  chap.  412,  Comp. 
Stat.  1913,  S  9631),  giving  trustees  in  bank- 
ruptcy the  rights  and  remedies  of  a  lien 
creditor  or  a  judgment  creditor  as  against 
an  unrecorded  transfer,  the  estate  being 
in  cuatodia  legis  from  the  filing  of  the  peti- 
tion, and  the  title  of  the  trustee  relating 
back  to  that  date. 

[For    other    cssest    see    Bsnkruptcy,    YII.,    In 
Digest  Sup.  Ct.  1908.] 

[No.  82.] 

Argued  and  submitted  December  2  and  3, 
1915.    Decided  AprU  10,  1916. 

APPEAL  from  the  United  States  Circuit 
Court  of  Appeals  for  the  Seventh  Cir- 
cuit to  review  a  decree  which  affirmed  a  de- 
cree of  the  District  Court  for  the  Southern 
District  of  Illinois,  confirming  the  report 
of  a  referee  in  favor  of  a  trustee  in  bank- 
ruptcy who  asserts  the  invalidity,  as  against 
him,  of  a  chattel  mortgage  made  by  the 
bankrupt  because  not  properly  acknowl- 
edged and  recorded.    Affirmed. 

See  same  case  below,  129  0.  0.  A.  224, 
212  Fed.  688. 
The  facts  are  stated  in  the  opinion. 

•41 


H 


SUPRBMS  COUKT  OF  THE  UNITED  STATES. 


Mr.  BUflha  B.  Diirf ee  argued  the  cause, 
and,  with  Messrs.  John  A.  Bellatti,  Walter 
Bellatti,  and  Qeorge  B.  Soofleld,  filed  a 
brief  for  i^ppellant: 

Even  before  the  new  equity  rules,  it  was 
not  necessary  to  raise  the  defenses  of  want 
of  facts  and  the  jurisdiction  of  the  subject- 
matter  by  plea.  They  would  be  noticed  if 
obvious. 

Singer  Sewing  Mach.  Co.  v.  Benedict,  229 
U.  S.  481,  57  L.  ed.  1288,  33  Sup.  Ct.  Rep. 
941. 

There  is  a  difference  between  the  capacity 
or  competency  to  sue  generally,  or  in  the 
particular  action  which  they  bring,  and  the 
right  and  title  and  capacity  to  hold  the 
property. 

Society  for  Propagation  of  the  Gospel  v. 
Pawlet,  4  Pet.  480,  7  L.  ed.  927. 

Where  possession  of  property  is  prociu'ed 
by  fraud  or  mistake  by  a  person  who  is 
afterwards  adjudged  bankrupt,  it  is  true  at 
least  that  unless  there  are  subsequent 
creditors  who  could  have  given  credit  on  the 
faith  of  the  ownership  by  the  bankrupt, 
the  title  is  defeasible  in  the  hands  of  the 
trustee,  and  the  burden  is  on  whichever 
party  is  plaintiff  to  show  about  this.  This 
court,  in  the  case  of  Montgomery  v.  Bucy- 
rus  Mach.  Works,  92  U.  S.  257,  23  L.  ed. 
656,  held  that,  as  no  creditors  were  deceived 
into  giving  credit  on  the  apparent  ownership 
of  the  property  by  the  bankrupt,  the  de- 
frauded vendor  was  entitled  to  the  prop- 
erty, as  against  the  assignee  in  bankruptcy. 
There  was  a  like  holding  in  Donaldson  v. 
Farwell,  93  U.S.  631,  23  L.  ed.  993. 

It  is  the  law  of  Dlinois,  that  on  a  con- 
ditional sale,  if  no  creditor  has  given  credit 
to  the  vendee  on  the  faith  of  the  ownership 
of  the  property  while  it  is  in  his  possession, 
the  vendor  may  reclaim  the  property,  and 
his  rights  are  superior. 

Ketchum  t.  Watson,  24  HL  592;  Van 
Duzor  V.  Allen,  90  HI.  499;  Gilbert  t.  Na- 
tional Gash  Register  Go.  176  lU.  288,  52  N. 
Jbi.  22. 

Since  the  bankrupt  or  trustee  was  plain- 
tiff here,  the  burden  should  be  on  him  to 
show  that  there  was  at  least  one  creditor 
who  could  have  given  credit  to  the  bank- 
rupt while  the  dredge  was  in  its  possession. 

Miller  v.  New  Orleans  Add  ft  Fertilizer 
Go.  211  U.  S.  496,  53  L.  ed.  300,  29  Sup.  Ct. 
Rep.  176. 

While  the  recording  of  a  chattel  mortgage 
within  four  months,  etc,  under  the  amend- 
ment of  June  25,  1910,  might  constitute  a 
preference  under  certain  circumstances,  the 
taking  possession  under  the  circumstances 
here  'Would  not.  There  must  have  been  a 
conveyance  within  four  months  to  have  that 
effect,  and  here  there  was  none  whatever. 
The  title  was  retained. 
S4S 


Dot.  Temm, 


Thompson  t.  Fairbanks,  196  U.  S.  616,  49 
L.  ed.  577,  25  Sup.  Ct  Rep.  306. 

But  the  amendment  of  June  25,  1910,  of 
the  bankruptcy  act,  can  have  no  detrimental 
effect  on  this  transaction  which  occurred  in 
1907.  It  would  impair  the  obligation  of 
the  contract  to  make  it  void  or  its  realiza- 
ti<m  more  hazardous;  and  such  an  inten- 
tion will  not  be  imputed,  if  not  expressed. 

Holt  V.  Henley,  232  U.  S.  637,  58  L.  ed. 
767,  34  Sup.  Ct.  Rep.  459. 

Oorporations  were  required  to  locate  in 
their  charters  their  principal  place  of  busi- 
ness, that  there  might  be  no  difficulty  in 
determining  their  location  or  residence. 

"Residence,"  "Domicil,"  Century  Diet.; 
Pelton  V.  Northern  Transp.  Co.  37  Ohio  St. 
450;  Western  Transp.  Go.  v.  Scheu,  19  N.  Y. 
408;  Ez  parte  Schollenberger,  96  U.  S.  369, 
24  L.  ed.  853;  Galveston,  H.  ft  S.  A.  R.  Co. 
V.  Gonzales,  151  U.  S.  496,  38  L.  ed.  248,  14 
Sup.  Ct.  Rep.  401;  Hewitt  v.  General  Elec- 
tric Co.  164  IlL  420,  45  N.  E.  725;  Jenkins 
V.  California  Stage  Co.  22  CaL  537. 

In  this  way  this  court  worked  out  the 
citizenship  of  corporations  for  the  purposes 
of  jurisdiction. 

St.  Louis  &  S.  F.  R.  Co.  v.  James,  161 
U.  S.  545,  40  L.  ed.  802,  16  Sup.  Ct.  Rep. 
621;  Southern  R.  Co.  v.  Allinson,  190  U.  S. 
326,  47  L.  ed.  1078,  23  Sup.  Ct.  Rep.  713; 
Galveston,  H.  A  S.  A.  R.  Co.  v.  Gonzales, 
151  U.  S.  496,  38  L.  ed.  248, 14  Sup.  a.  Rep. 
401. 

A  corporation  must  dwell  in  the  place  of 
its  creation,  and  cannot  migrate  to  another 
sovereignty,  unless  by  virtue  of  legislation. 

Bank  of  Augusta  v.  Earle,  13  Pet.  521, 
588,  10  L.  ed.  275,  307;  Canada  Southern  R. 
Co.  V.  Gebhard,  109  U.  S.  527,  27  L.  ed. 
1020,  3  Sup.  Ct.  Rep.  363. 

There  has  been  much  diversity  of  decision 
in  the  lower  courts  on  the  question  of  what 
court  has  jurisdiction  to  adjudge  a  corpora- 
tion bankrupt.  Some  hold  that  only  the 
court  in  the  district  in  which  the  principal 
place  of  business  has  been  fixed  in  the  char- 
ter of  the  corporation  has  jurisdiction,  and 
that  courts  elsewhere  are  without  jurisdic- 
tion. Others  hold  that  wherever  the  cor- 
poration does  the  larger  part  of  its  business, 
even  if  in  a  state  foreign  to  its  domicil,  it 
may  be  adjudged  bankrupt  by  a  court  there. 

White  Mountain  Paper  Co.  v.  Morse,  62 
C.  C.  A.  369,  127  Fed.  643;  Re  Elmira  Steel 
Co.  5  Am.  Bankr.  Rep.  505,  109  Fed.  456; 
Re  United  Button  Co.  137  Fed.  668;  Re  Bos- 
ton, H.  ft  E.  R.  Co.  9  Blatchf.  101,  Fed.  Gas. 
No.  1,677;  Re  Alaska  American  Fish  Co.  162 
Fed.  498;  Re  Pennsylvania  ConsoL  Coal  Co. 
163  Fed.  579;  Re  Duplex  Radiator  Co.  142 
Fed.  906;  Re  Marine  Mach.  A  Conveyor  Oo. 
91  Fed.  630;  Tiffany  v.  La  Plume  Cbn- 
densed  Milk  Go.  141  Fed.  444;  Dressel  v. 

S40  V.  8. 


lau. 


FAIBBANKS  BTKAU  SHOVKL  CO.  ▼.  WIULS, 


Horth  8Ut«  Lnmber  Oo.  a  N.  B.  N.  Rep.  MS, 
lOT  FmI.  SfiS;  Re  Matthew*  Consol.  SIaU 
Co.  75  C.  C.  A.  COS,  144  F»d.  737;  LouierUle 
Tniat  Co,  t.  Comingor,  184  U.  S.  SO,  4«  L. 
•d.  416,  22  Sup.  Ct.  Rsp.  293. 

Ben  the  court  below  lacked  tenitorUl 
Jnriadictioii  uid  jnritdictiou  of  the  aubject- 
inatttr,  and  fouod  »Dd  itkted  it  on  the 
record.  Where  facta  material  to  the  iiaucs 
appear,  that  show  want  of  juriidiction,  the 
Mart  must  dlamlM,  tua  *po*t».  Here  the 
fact  that  the  principal  place  of  bnaineaa  of 
the  bankrupt  waa  in  Chicago,  Cook  eonntj, 
in  Qie  northern  district,  and  not  in  Bearda- 
town,  Oaaa  countf,  Illinoia,  in  the  aouthem 
^strict  af  niiiiois,  was  the  very  queation 
at  iBBue  on  which  both  decisiona  below  were 
founded. 

Hartog  T.  Memory,  118  U.  8.  888,  28  L. 
•d.  726,  e  Sup.  Ot.  Rep.  521. 

The  bankmpt  court  had  no  Jnriadiction  of 
thla  independent  proceeding  on  the  facta  de- 
Teloped  againit  appellant. 

HarrU  v.  First  Nat.  Bank,  21«  U.  8.  382, 
64  L.\ed.  628,  30  Sup.  Ct.  Rep.  206;  Re 
Rochford,  59  C.  C.  A.  391,  124  Fed.  162; 
Hanslield,  C.  ft  L.  M.  R.  Go.  v.  Swan,  111 
U.  S.  379,  382,  28  L.  ed.  462,  4«3,  4  Sup.  Ct. 
Bep.  SIO;  Morris  v.  Gilmer,  129  U.  S.  315, 
38  L.  ed.  6D0,  9  Sup.  Ct.  Rep.  289;  Lovell 
*  Newman,  227  U.  S.  412,  67  L.  ed.  677,  S3 
Sup.  Ct.  Rep.  376. 

llie  court,  ma  tponit,  should  have  dis- 
miaaed  this  proceeding  in  equity,  when  it 
appeared  quite  obvious  on  the  face  of  the 
record  that  the  plaintiff,  on  the  facta,  had  a 
plain,  adequate,  and  complete  remedy  at 
law  to  recover  the  specific  personal  property. 
At  most  the  injunction  shauld  not  have  been 
continued  beyond  time  for  an  officer  to  take 
posaesBion  ot  the  property  on  a  writ  of 
replevin. 

Singer  Sewing  Mach.  Co.  v.  Benedict,  229 
O.  8.  481,  67  L.  ed.  1288,  33  Sup.  Ct.  Rep. 
Ml;  Mackall  v.  Casilear,  137  U.  S.  666,  34 
L.  ed.  776,  II  Sup.  Ct.  Rep.  173;  Scott  t. 
Neely,  140  U.  S.  110,  36  L.  ed.  360,  11  Sup. 
Ct.  Rep.  712;  Parker  v.  Winnipiseogee  Lake 
Cotton  A.  Woollen  Co.  2  Black,  S46,  17  L. 
»d.  333;  Lewis  v.  Cocks.  23  Wall.  466,  23 
L.  ed.  70;  Sullivan  v.  Portland  ft  E.  E.  Co. 
M  V.  8.  806,  24  L.  ed.  324. 

Since  the  controversy  on  this  petition 
•gainat  appellant  was  carried  on  in  the 
buikrupfa^  cause,  entitled  therein,  with  all 
pftrtiea  participating,  in  full  view  of  tlie 
bankruptcy  proceeding,  which  was  still 
open,  the  court  was  bound  to  consider  its 
jurisdiction  in  both  proceedings  on  Ita  find- 
ing that  the  principal  place  of  buainees  ot 
the  alleged  bankrupt  always  waa  in  another 
district.  And  it  ahould  har^  mta  »po»t9, 
dlamiesed  botli. 


Butler  T.  Katon,  141  D.  8.  240,  >fi  L.  ed. 
713,  11  Sup.  Ct.  Rap.  686. 

Mr.  Elbert  O.  Ferpison  aubmitted  the 
cause  for  appellee.  Messrs.  William  Mom- 
ford  and  John  C.  Burebard  were  on  the 
brief: 

Our  statute  relating  to  the  organisation 
of  corporations  having  been  adopted  from 
the  New  York  atatnte,  it  muat  receive  the 
same  construction  given  the  same  or  similar 
language  by  the  New  York  courts. 

Re  Qua  T.  Graham,  187  El.  71,  68  LJLA. 
041,  68  N.  B.  867;  Rboads  v.  Chicago  ft  A. 
R  Co.  227  m.  328,  11  LJLA.(N.8.)  623,  81 
N.  E.  371,  10  Ann.  Ota.  111. 

The  charter  or  certificate  of  complete  or- 
ganization of  the  corporation  fixes  its  resi- 
dence, and  thia  cannot  be  changed  except  by 
following  tbe  method  provided  by  law. 

Norfolk  Bank  For  SaT.  ft  Tniata  v.  God- 
win, 32  C.  C.  A.  31,  07  U.  B.  App.  286,  80 
Fed.  726;  People  ex  rel.  Knickerbocker  Press 
V.  Barker,  87  Hun,  341,  34  N.  Y.  Supp.  269; 
Western  Transp.  Co.  v.  Scheu,  10  N.  Y.  408; 
Pelton  V.  Northern  Transp.  Co.  87  Ohio  St. 
460;  Ex  parte  Schollenberger,  96  U.  S.  360, 
84  L.  ed.  853;  First  Nat.  Bank  v.  Wilcox,  72 
Wash.  473,  ISO  Pac.  766,  131  Pac  203. 

This  mortgage,  not  having  been  acknowl- 
edged or  recorded  according  to  law,  ia  void 
as  against  the  trustee. 

Frank  t.  Miner,  60  lU.  444;  Long  t.  Coc^- 
em,  128  111.  29,  21  N.  B.  201;  Stephenson 
T.  Browning,  48  111.  78;  Hatnmeis  v.  Dole, 
81  nl.  307. 

The  dUtrict  court  of  the  United  States 
for  tbe  souUiem  district  of  Illinoia  had  ju- 
risdiction to  entertain  the  petition  filed  De- 
cember 30,  1912,  and  to  determine  tbe  ques- 
tion of  its  own  Jurisdiction. 

Firat  Nat.  Bank  r.  King,  180  U.  8.  202, 
46  L.  ed.  1127,  £2  Sup.  Ct.  Rep.  899;  Smith 
T.  McKay,  161  U.  8.  366,  40  L.  ed.  731,  10 
Sup.  Ct.  Rep.  490. 

Tbe  district  court  of  tbe  United  States 
for  the  southern  district  of  lUinois,  having 
adjudicated  the  Federal  Contracting  Com- 
pany to  be  a  bankrupt,  thia  judgment  ia 
final  and  binding  on  that  corporation  and 
ita  creditors  nntil  vacated  on  appeal  or 
otherwise. 

23  Cyc.  1090,  and  eases  cited;  Remington, 
Bankr.  |  460;  Black,  Jndgm.  §  246;  Chap- 
man T.  Brewer,  114  U.  8.  168,  29  L.  ed.  83, 
6  Sup.  Ct.  Rep.  799. 

The  district  court  had  power  to  hear  and 
determine  tbe  questions  inrolved  In  this 
appeal. 

Collier,  Bankr.  Oth  ed.  p.  «78t  Dressel  V. 
North  State  Lumber  Co.  fi  Am.  Bankr.  Rep. 
744,  107  Fed.  266. 

The  petition  for  bankruptflj  waa  filed  In 
tfas  proper  district. 


tf4»-645 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Temm, 


Dressel  y.  North  State  Lumber  Co.  supra; 
Re  Marine  Mach.  &  Conveyor  Co.  1  Am. 
Bankr.  Rep.  421,  91  Fed.  630;  Collier,  Bankr. 
0th  ed.  33. 

All  property  of  the  bankrupt  becomes, 
by  the  filing  of  the  petition,  in  ouatodia 
legia. 

Re  Jules  &  F.  Co.  27  Am.  Bankr.  Rep. 
136;  Everett  v.  Judson,  30  Am.  Bankr.  Rep. 
1;  Andrews  ▼.  Partridge,  30  Am.  Bankr. 
Rep.  4;  Burlingham  v.  Crouse,  30  Am. 
Bankr.  Rep.  6;  Toof  v.  City  Nat.  Bank,  30 
Am.  Bankr.  Rep.  79. 

The  rights  of  the  trustee  are  those  of  an 
attaching  or  execution  creditor,  having  an 
unsatisfied  execution  at  the  date  of  the 
institution  of  bankruptcy  proceedings. 

Collier,  Bankr.  9th  ed.  pp.  650,  662. 

Possession  taken  by  the  mortgagee  after 
the  filing  of  the  bankruptcy  petition  is  of 
no  avail  to  perfect  his  title. 

Re  Jules  &  F.  Co.  27  Am.  Bankr.  Rep. 
136;  Toof  T.  City  Nat.  Bank,  30  Am.  Bankr. 
Rep.  79. 

Mr.  Justice  Pitney  delivered  the  opinion 
of  the  court: 

This  is  a  controversy  arising  in  a  bank- 
ruptcy proceeding.    On  December  30,  1912, 
a  creditors'  petition  in  bankruptcy  was  filed 
in  the  United  States  district  court  for  the 
southern    district   of    Illinois   against    the 
Federal  Contracting  Company,  a  corpora- 
tion of  that  state,  and  on  March  25,  1913, 
it  was  •adjudicated  a  bankrupt.     Between 
those  dates,  and  on  March  6,  the  Fairbanks 
Steam  Shovel  Company,  the  present  appel- 
lant, without  actual  knowledge  of  the  filing 
of   the  petition,   seized  a   certain   floating 
steam  dredge,  then  in  possession  of  the  Con- 
tracting   Company    at    Beardstown,    Cass 
county,  which  is  in  the  southern  district  of 
Illinois;   doing  this  by  virtue  of  a  chattel 
mortgage  given  by  the  Contracting  Company 
to  appellant  on  Jime  8,  1012,  the  dredge 
then  being  in  the  possession  of  the  mort- 
gagor at  Beardstown.    After  the  adjudica- 
tion of  bankruptcy,  but  before  the  appoint- 
ment of   a   trustee,   the   bankrupt   filed  a 
petition  against  appellant  in  the  bankruptcy 
proceeding,  setting  up  that  the  mortgage  was 
not  acknowledged  or  recorded  in  Cook  Coun- 
ty,  Illinois,   where  the  principal  office  of 
the  bankrupt  was  located  by  its  charter,  and 
for   this   reason   was    invalid .  against   the 
trustee  in  bankruptcy  to  be  appointed,  and 
praying  that  appellant  might  be  restrained 
from  selling  [644]  the  dredge,  as  it  threat- 
ened to  do.  The  court  entered  a  temporary 
restraining  order,  which  was  served;  appel- 
lant, without  questioning  the  jurisdiction  of 
the  court,  appeared  and  answered,  admitting 
that  it  had  taken  possession  of  the  dredge 
under  the  provisions  of  the  mortgage,  id- 
844 


I  leging  that  the  mortgage  was  duly  exeeuted 
and  was  given  to  secure  a  part  of  the  pur- 
chase price  of  the  dredge,  and  that  at  the 
I  time  of  its  execution  the  bankrupt,  through 
its  officers,  represented  to  appellant  that 
its  principal  place  of  business  was  at 
Beardstown;  and  further,  that,  before  the 
adjudication  of  bankruptcy,  appellant  took 
actual  possession  of  the  dredge,  and  thereby 
perfected  its  title  thereto;  and  asking  that 
the  injunction  be  dissolved,  etc.  No  trustee 
having  yet  been  appointed,  it  was  ordered 
by  the  court,  upon  a  stipulation  between 
the  parties,  that  the  sale  should  proceed,, 
imder  an  arrangement  providing,  among 
other  things,  that  if  appellant  purchased 
the  dredge,  it  should  hold  it  subject  to  the 
decision  of  the  controversy.  The  sale  was 
held  accordingly,  and  the  dredge  was  pur- 
chased by  appellant.  Thereafter  appellee 
was  appointed  trustee  in  bankruptcy,  and 
was  substituted  as  a  party  to  the  contro- 
versy in  place  of  the  bankrupt.  .The  matter 
was  heard  before  the  referee,  who  reported 
in  favor  of  the  trustee.  The  district  court 
overruled  exceptions  and  confirmed  the  re- 
port; and,  on  appeal,  the  circuit  court  of 
appeals  affirmed  the  decree.  120  C.  C.  A. 
224,  212  Fed.  688.  The  appeal  to  thia 
court  antedated  the  act  of  January  28, 
1015,  chap.  22,  §§  4  and  6,  38  Stat,  at  L. 
804. 

The  principal  question  is  whether  the 
chattel  mortgage  was  properly  acknowl- 
edged and  recorded  so  as  to  be  valid  against 
the  trustee  in  bankruptcy. 

The  law  of  Illinois  respecting  chattel 
mortgages  may  be  found  in  chap.  95  of 
Hurd's  Rev.  Stat.  1909.  Par.  1  provides 
that  no  such  mortgage  shall  be  valid  as 
against  the  rights  and  interests  of  any  third 
person  unless  possession  shall  be  delivered 
to  and  remain  with  the  grantee,  [645]  or 
the  instrument  shall  provide  for  the  posses- 
sion of  the  property  to  remain  with  the 
grantor,  and  the  instnunent  be  acknowl- 
edged and  recorded  as  thereinafter  directed. 
Par.  2  provides  that  such  instrument  shall 
be  acknowledged  before  a  specified  ofiicer  of 
*'the  county  where  the  mortgagor  resides," 
if  a  resident  of  the  state,  with  a  proviso 
that  in  counties  having  a  population  of 
more  than  200,000  (this  applies  to  Cook 
county),  such  instrument,  'if  the  mortgagor 
is  a  resident  of  the  state,"  shall  be  acknowl- 
edged before  one  of  several  designated  officers 
of  the  town,  precinct,  district,  or  county  *in 
which  the  mortgagor  resides."  By  par.  4, 
the  mortgage,  when  so  acknowledged,  "shall 
be  admitted  to  record  by  the  recorder  of  the 
county  in  which  the  mortgagor  shall  reside 
at  the  time  when  the  instrument  is  executed 
and  recorded." 
The  bankrupt  was  incorporated   in   the 

940  U.  S. 


1915. 


FAIRBANKS  STEAM  SHOVEL  CO.  y.  WILLS. 


645-648 


jear  1905  under  a  general  act  (Hurd'a  Rev. 
Stat.  1909,  chap.  32),  the  second  paragraph 
ai  which  requires  tiie  organizers  to  make, 
subscribe,  and  acknowledge  a  statement  set- 
ting forth  the  name  of  the  proposed  corpora- 
tion, the  object  for  which  it  is  formed,  its 
capital  stock,  the  location  of  the  principal 
office,  etc.,  which  is  to  be  filed  in  the  office 
of  the  secretary  of  state.  If  the  object  of 
the  proposed  corporation  is  clearly  and  defi- 
nitely stated  and  is  a  lawful  object,  the 
secretary  of  state  issues  to  the  corporators 
a  license  as  commissioners  to  open  books  for 
subscription  to  the  capital  stock.  After  the 
stock  is  subscribed,  directors  or  managers 
elected,  etc.,  the  secretary  of  state  (^  4) 
issues  a  certificate  of  the  complete '  organi- 
sation oi  the  corporation.  But,  before  this 
is  done,  the  corporaticm  must  "file  with  the 
secretary  of  state  a  statement  setting  forth 
the  postoffice  address  of  its  business  office, 
giving  street  and  number."  (Act  of  May 
10,  1901,  Laws  1901,  p.  124;  Hurd's  Rev. 
Stat.  1909,  chap.  32,  par.  192.) 

Other  sections  (chap.  32,  ff  50  et  seq.) 
contain  elaborate  [646]  provisions  to  be 
complied  with  when  the  directors  of  any 
corporation  "may  desire  to  change  the  name, 
to  change  the  place  of  business,  to  enlarge 
or  change  the  object  for  which  such  corpo- 
ration was  formed,  to  increase  or  decrease 
the  capital  stock,"  etc.  There  is  to  be  a 
special  meeting  of  the  stockholders,  called 
on  notice  mailed  to  each  stockholder  and 
published  in  a  newspaper,  and  votes  repre- 
senting two-thirds  of  all  the  stock  of  the 
coloration  shall  be  necessary  for  the  adop- 
tion of  the  proposed  change;  an  appropriate 
certificate  is  to  be  filed  in  the  office  of  the 
secretary  of  state,  and  a  like  certificate 
made  a  matter  of  record  in  the  county 
where  the  principal  business  office  of  tlM 
corporation  is  located;  and  a  notice  of  the 
change  is  also  to  be  published  in  a  newspa- 
per for  three  successive  weeks. 

The  statement  made  by  the  organizers  of 
the  bankrupt  corporation  declared:  "The 
location  of  the  principal  office  is  in  the  city 
of  Chicago,  in  the  county  of  Cook,  and 
state  of  Illinois."  A  license  was  issued  to 
them  as  commissioners  to  open  books  for 
subscription  to  the  capital  stock,  and  in 
due  course  they  made  their  report  to  the 
secretary  of  state,  in  which  it  was  stated: 
"That  the  postoffice  address  of  the  business 
office  of  said  company  is  at  No.  —  Park 
Hotel,  streets  not  numbered,  in  the  city  of 
Beardstown,  in  the  county  of  Cass,  and  state 
of  Illinois."  Upon  receipt  of  this,  the  sec- 
retary of  state  issued  a  certificate  of  com- 
plete organization,  including  in  it  the  first 
statement,  the  report  of  the  commissioners, 
and  other  papers  filed  in  his  office  respect- 
ing the  organisation  of  the  oorporation,  as 
60  L.  ed. 


required  by  the  statute.  The  first  meetings 
of  the  stockholders  were  held  in  Chicago, 
and  another  stockholders'  meeting  was  held 
there  about  two  years  later.  All  other  re- 
corded meetings  of  stockholders  and  direc- 
tors were  held  in  Beardstown.  An  office 
was  nominally  maintained  in  Chicago,  but 
no  records  or  books  of  account  were  kept 
nor  any  business  transacted  [647]  there. 
So  far  as  the  practical  conduct  of  the  busi- 
ness was  concerned,  and  to  all  outward  ap- 
pearances, the  principal  office  was  in 
Beardstown.  But  no  change  of  "the  place 
of  business"  was  made  in  the  manner  pre- 
scribed by  the  statute. 

The  chattel  mortgage  was  made,  acknowl- 
edged, and  recorded  in  Cass  county,  and 
was  never  either  recorded  or  acknowledged 
in  Cook  county. 

The  circuit  court  of  appeals  held,  affirm- 
ing the  district  court,  that  the  "residence" 
of  the  bankrupt  was  in  Chicago,  which  is 
in  Cook  county,  and  that  therefore  the  mort- 
gage, having  never  been  properly  acknowl- 
edged or  recorded,  was  invalid  as  against 
the  trustee  in  bankruptcy. 

This,  in  our  opinion,  was  a  correct  dis- 
position of  the  question.  The  statutes  of 
Illinois  recognize  the  propriety  of  a  fixed 
location  for  the  principal  office  of  a  cor- 
poration, requiring  this  to  be  specified  in 
Uie  certificate  of  organization  and  to  be 
left  unchanged  except  on  formal  action  by 
two  thirds  in  interest  of  the  stockholders. 
Whether  "principal  office"  and  "business  of- 
fice" are  synonymous  is  not  entirely  clear, 
and  we  are  referred  to  no  decision  by  the 
state  courts  throwing  light  upon  this.  But, 
supposing  them  to  be  synonymous,  it  does 
not  seem  to  us  that  the  report  of  the  com- 
missioners for  stock  subscriptions  can  have 
the  effect  of  establishing  the  office  in  Cass 
county,  for  we  find  no  authority  in  the  com- 
missioners to  materially  change  the  location 
of  the  principal  office  as  formally  declared 
by  the  organizers. 

We  are  of  opinion  that  a  corporation  or- 
ganized under  the  laws  of  Illinois  is  to  be 
deemed  a  resident  of  the  state  within  the 
meaning  of  the  chattel  mortgage  act,  and 
that  tlie  county  of  its  residence  must  be 
taken  to  be  the  county  in  which  its  princi- 
pal office  is  located.  So  far  as  the  decisions 
of  the  state  courts  throw  light  upon  the 
question,  they  bear  out  this  view.  Bank  of 
North  America  v.  Chicago,  D.  k  V.  R.  Co. 
82  HI.  493,  496;  Hewitt  v.  General  [648] 
Electric  Co.  164  HI.  420,  425,  45  N.  £.  725. 
And  a  similar  view  prevails  in  other  juris- 
dictions. In  Ex  parte  Schollenberger,  96  U. 
S.  369,  377,  24  L.  ed.  863,  854,  this  court,  by 
Mr.  Chief  Justice  Waits,  said:  "A  corpora- 
tion cannot  change  its  residence  or  its  dti- 
lenship.  It  can  have  its  legal  home  op*~  ~^ 


648-450 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TnM, 


the  place  where  it  is  located  by  or  under 
the  authority  of  its  charter;  but  it  may  by 
its  agents  traniact  business  anywhere,  un- 
less prohibited  by  its. charter  or  excluded 
by  local  laws."  And  in  Galveston,  H.  k  S. 
A.  R.  Ck>.  V.  Ck>nEale8,  161  U.  8.  496,  504, 
38  L.  ed.  248,  251,  14  Sup.  Ct.  Rep.  401,  the 
court,  by  Mr.  Justice  Brown,  said:  "In 
the  case  of  a  corporation  the  question  of 
inhabitancy  must  be  determined,  not  by  the 
residence  of  any  particular  officer,  but  by 
the  principal  offices  of  the  corporation, 
where  its  books  are  kept  and  its  corporate 
business  is  transacted,  even  though  it  may 
transact  its  most  important  business  in  an- 
other place."  A  case  in  point  with  the  pres- 
ent is  First  Nat.  Bank  v.  Wilcox,  72  Wash. 
473,  130  Pac.  756,  131  Pac.  203.  And  see 
Western  Transp.  Ck>.  v.  Scheu,  10  N.  Y. 
408;  Union  S.  B.  Go.  v.  Buffalo,  82  N.  Y. 
851,  355;  Pelton  v.  Northern  Transp.  Ck>. 
37  Ohio  St.  450;  Jenkins  v.  California  Stage 
Co.  22  Cal.  537;  Cohn  v.  Central  P.  R.  Co. 
71  Cal.  488,  12  Pao.  498. 

It  is  hardly  necessary  to  say  that  what- 
ever equities,  if  any,  arose  out  of  the  mort- 
gagor's representation  that  its  principal 
place  of  business  was  at  Beardstown,  or  out 
of  the  fact  that  the  mortgage  was  given  to 
secure  a  part  of  the  purchase  price  of  the 
dredge,  were  confined  in  their  effect  to  the 
immediate  parties,  and  could  not  operate  to 
estop  the  trustee  in  bankruptcy,  representa- 
tive of  the  interests  of  creditors,  for  whose 
protection  the  recording  act  was  passed. 

It  is  objected  by  appellant  that  a  deter- 
mination ^at  the  bankrupt  corporation  had 
its  principal  place  of  business  and  therefore 
its  residence  in  Cook  county,  which  is  in  the 
northern  district,  shows  at  the  same  time 
that  the  United  States  district  court  for 
the  southern  district  of  [040]  Illinois  had 
no  jurisdiction  to  entertain  the  proceeding 
in  bankruptcy  under  S  2  of  the  bankruptcy 
act,  and  hence  no  jurisdiction  over  the  pres- 
ent controversy.  (See  Harris  v.  First  Nat. 
Bank,  216  U.  S.  382,  54  L.  ed.  528,  30  Sup. 
Ct.  Rep.  296.)  As  to  this,  the  circuit  court 
of  appeals  correctly  held  that  appellant,  by 
answering  and  making  defense  upon  the 
merits,  consented  to  the  jurisdiction,  so  that 
whether,  under  §§  23a  and  23b,  construed 
together  with  §  70e,  as  amended,  consent  to 
Uie  jurisdiction  of  the  district  court  was 
required,  need  not  be  considered. 

On  like  groimds,  it  is  insisted  that  the 
adjudication  of  bankruptcy  was  invalid,  and 
that  the  trustee  had  no  capacity  to  sue.  But 
the  adjudication  is  not  open  to  collateral 
attack,  and  the  question  of  capacity  was 
waived  because  not  raised  in  the  trial  court. 

Appellant's  title  was  not  perfected,  as 
against  the  trustee  in  bankruptcy,  by  tak- 
ing possession  of  the  dredge  under  the 
846 


mortgage  after  the  filing  of  the  petition  in 
bankruptey,  and  before  the  adjudication. 
Since  the  amendment  of  §  47a-2  of  the  bank- 
ruptcy act  by  the  act  of  June  25,  1910 
(chap.  412,  I  8,  36  Stat,  at  L.  838,  840, 
Comp.  Stat.  1913,  §§  9586,  9631),  trustees 
have  the  rights  and  remedies  of  a  lien 
creditor  or  a  judgment  creditor  as  against 
an  unrecorded  transfer.  The  estate  was  in 
ouMtodia  Ugi§  from  the  filing  of  the  peti- 
tion, and  the  title  of  the  trustee  related 
back  to  that  date.  Acme  Harvester  Co.  v. 
Beekman  Lumber  Co.  222  U.  S.  300,  307,  56 
L.  ed.  208,  213,  32  Sup.  Ct.  Rep.  96;  Everett 
V.  Judson,  228  U.  S.  474,  478,  57  L.  ed.  927, 
929,  46  L.R.A.(N.S.)  154,  33  Sup.  Ct.  Rep. 
568. 

Other  questions  are  raised,  but  they  are 
unsubstantial  and  require  no  particular 
mention. 

Decree  affirmed. 


[650]  STATE  OF  GEORGIA,  Complainant, 

V. 

TENNESSEE  COPPER  COMPANY  and  the 
Ducktown  Sulphur,  Copper,  k  Iron  Com- 
pany, Limited. 

(See  S.  C.  Reporter's  ed.  650,  651.) 

Injunction  -^  against  pollution  of  air  — 

suit  by  state. 

Injunctive  relief  to  the  state  of 
Georgia  against  the  discharge  of  noxious 
gases  from  copper  smelters  in  Tennessee  in 
such  quantities  as  are  destructive  to  vegeta- 
tion in  Greorgia  awarded  by  final  decree. 
[For   other    cases,    see    Injunction,    II.    b,    in 

DJcest   Sop.  Ct.   1908.] 

[No.  1,  Original.] 

Submitted  February  28,  1916.    Final  decree 
entered  April  3,  1916. 

ORIGINAL  SUIT  in  equity  by  the  stat» 
of  Georgia  to  enjoin  the  discharge  of 
noxious  gases  from  oopper  smelters  in  Ten- 
nessee so  as  to  injure  vegetation  in  Georgia. 
Final  decree  entered. 

Messrs.  Lamar  Hill,  J.  A.  Drake,  Clif- 
ford  Walker,  and  Mark  Holding  submitted' 
on  behalf  of  complainant  a  motion  for  final 
decree  of  injimction. 

Mr.  George  H.  West,  in  behalf  of  Messrs. 
W.  B.  Miller  and  J.  A.  Fowler,  submitted 
an  application  on  behalf  of  defendant,  the* 
Ducktown  Sulphur,  Copper,  k  Iron  Com- 
pany, for  final  decree  dismissing  the  bill  aa 
to  it. 

Messrs.  J.  A.  Drake,  Lamar  Hill,  aifford 
Walker,  and  Mark  Bolding  submitted  on 
behalf  of  complainant  objections  to  the  mo- 
tion to  dismiss. 

940  V.  8. 


1916. 


NORTH  CABOUNA  y.  TBNNS88EE. 


660-662 


The  Ghief  Justice  ftanounoed  the  follow- 
ing order: 

This  cause  coming  on  to  be  heard  on  the 
report  of  the  inspector  heretofore  appointed 
to  obserre  operations  of  the  plant  and  works 
of  defendant  the  Ducktown  Sulphur,  Copper, 
ft  Iron  Ck>mpany,  Limited,  and  upon  oon- 
sideration  thereof 

It  is  now  here  ordered,  adjudged,  and  de* 
creed  (and  all  former  decrees  are  aooord- 
ingly  modilied)  as  follows: 

1.  That  defendant  the  Ducktown  Sulphur, 
Copper,  ft  Iron  Company,  Limited,  here- 
after shall  not  permit  escape  into  the  air 
from  its  works  of  fumes  carrying  more  than 
45  per  cent  of  the  sulphur  contained  in 
green  ores  subjected  to  smelting. 

2.  That  it  shall  not  hereafter  from  April 
10th  to  October  -1st  in  any  year  permit 
escape  into  the  air  of  gases  the  total  sul- 
phur content  of  which  shall  exceed  25  tons 
during  one  day,  and  not  more  than  50 
tons  per  day  shall  be  permitted  to  escape 
at  other  times. 

8.  That  it  shall  keep  a  daily  record  of  the 
amount  of  green  ores  smelted,  sulphur  in 
green  ore,  acid  made,  sulphur  in  acid,  per 
centum  of  sulphur  recovered,  sulphur  es- 
caping, and  per  oentum  of  sulphur  escaping, 
BO  that  statements  may  be  compiled  there- 
from substantially  the  same  as  table  8,  page 
19,  printed  report  of  the  inspector.  [651] 
It  shall  also  keep  a  weather  record  showing 
direction  and  velocity  of  wind,  humidity, 
temperature,  and  pressure  at  intervals  of 
six  hours.  These  records,  verified  by  the 
oath  of  a  responsible  officer  or  employee  of 
the  defendant,  shall  be  reported  to  the  clerk 
of  this  court  immediately  after  the  end  of 
each  calendar  month. 

4.  That  it  shaU  deposit  with  the  clerk  of 
this  court  an  additional  sum  of  $125.40  to 
cover  expenses  and  compensation  of  in- 
wpeetoT, 

5.  That  the  clerk  shall  pay  to  Dr.  John 
T.  McOill,  inspector  heretofore  appointed, 
the  sum  of  $8,875.40 — $8,000  being  compen- 
sation for  services,  and  $375.40  to  meet  ex- 
penses incurred  in  excess  of  payments  here- 
tofore made  to  him. 

6.  The  costs  of  the  proceedings  in  the 
cause  from  February  24,  1914,  to  this  date, 
will  be  charged  to  defendant  the  Ducktown 
Sulphur,  Copper,  ft  Iron  Company,  Limited; 
costs  accruing  prior  to  February  24,  1914, 
will  be  divided  equally  between  the  Ten- 
nessee Copper  Company  and  the  Ducktown 
Sulphur,  Copper,  ft  Iron  Company,  Limited. 

7.  The  cause  will  be  retained  on  the  dock- 
•t  until  further  order  of  the  oourt 

April  8,  1916. 
«0  Is.  ed. 


[668]    STATE  OF   NORTH   GABOLINA, 

Complainant) 

V. 

STATE  OF  TENNESSEE. 
(See  S.  C.  Reporter's  ed.  652-668.) 

Bonndarles  »  between  states. 

The  true  boundary  line  between  the 
states  of  North  Carolina  and  Tennessee 
through  the  Slick  Rock  sad  Tellioo  basins 
decreed  to  be  as  delineated  in  the  report  of 
commissioners  appointed  for  that  purpose. 
[For  other  cases,  see  Boundaries,  IlL  c»  in 
Digest  Bop.  Ct  1908.] 

[No.  4»  Original.] 
April  8,  1916. 

ORIGINAL  Suit  in  Equity  brought  by 
the  State  of  North  Carolina  against 
the  State  of  Tennessee  for  the  judicial  es- 
tablishment of  a  part  of  the  boundary  line 
between  the  two  states.  The  true  bound- 
ary decreed  to  be  as  delineated  in  the  re- 
port of  commissioners  appointed  for  that 
purpose. 

This  cause  coming  on  to  be  heard  on  the 
motion  of  counsel  for  the  complainant,  con- 
curred in  by  the  counsel  for  tiie  defendant, 
to  confirm  the  report  of  the  commissioners 
heretofore  appointed  by  this  court  to  ascer- 
tain, retrace,  remark,  and  reestablish  the 
real,  certain,  and  true  boundary  line  be- 
tween the  states  of  North  Carolina  and 
Tennessee  between  certain  points  mentioned 
in  said  report,  which  said  report  is  in  the 
words  and  figures  following,  to  wit: 

Pursuant  to  a  decree  of  the  Supreme 
Court  of  the  United  States,  issued  at  the 
October  Term,  1914,  which  appointed  D.  B. 
Burns  of  Asheville,  N.  C,  W.  D.  Hale  of 
Maryville,  Tenn.,  and  Addison,  Ky.,  and 
Joseph  Hyde  Pratt  of  Chapel  Hill,  N.  C, 
Commissioners  to  permanently  mark  and  set 
Monuments  on  the  line  in  dispute  in  said 
controversy  between  said  States,  and  which 
set  out  in  detail  the  duties  of  said  Com- 
missioners, we  the  said  D.  B.  Bums,  W.  D. 
Hale  and  Joseph  Hyde  Pratt,  Commission- 
ers, do  herewith  respectfully  submit  our  re- 
port. 

We  have,  as  ordered,  reproduced  on  the 
accompanying  map.  No.  1,  the  State  Line 
from  Tree  No.  1 — the  same  being  the  59th 
mile-tree  marked  by  the  Commissioners  in 
1821 — southwestwardly  to  the  point  where 
the  dispute,  began  which  point  is  15  feet 
south  32  46'  west  from  Tree  No.  29 — ^the 
hemlock  fore  and  aft  tree  marked  by  the 

NoTB. — On  Judicial  settlement  of  state 
boundaries  see  note  to  Nebraska  t.  Iowa, 
86  L.  ed.  U.  S.  798. 

A4T 


662-664 


SUPREME  COURT  OF  THE  UNITED  STATES. 


OoT.  Temm, 


CommissionerB  in  1821 — ^jost  north  of  Little 
Tennessee  river.  The  description  of  said 
reproduced  line  is  as  follows,  t^: 

[653]  BEGINNING  at  the  69th  mUe  tree, 
a  large  red  oak  or  mountain  oak,  marked  on 
the  southeast  side  (Jf).  This  tree  stands 
in  the  Rich  Gap  of  the  Smoky  Mountain  and 
260  feet  North  SO  47'  East  from  the  lowest 
part  of  said  gap,  and  runs  with  the  mean- 
ders of  the  mountain  South  26  60'  00^ 
West  100  feet  to  a  stake, 
thence  South  43  66'  36""  West  472  feet  to 
a  stftke 

thence  South  60  68'  66""  West  212  feet  to 
a  stake, 

thence  South  83  18'  42^  West  344  feet  to 
a  stake 

thence  South  82  32'  00^  West  236  feet  to 
a  stake, 

thence  South  66  06'  47""  West  661  feet  to 
a  stake, 

thence  South  82  31'  36""  West  646  feet  to 
a  stake 

thence  South  61  24'  26""  West  424  feet  to 
a  stake, 

thence  South  43  68'  67""  West  284  feet  to 
a  stake 

thence  South  40  20'  30^  West  620  feet  to 
a  stake, 

thence  South  46  62'  47""  West  332  feet  to 
a  stake 

thence  South  0  30'  10^  East  410  feet  to 
a  stake 

thence  South  6  68'  OO''  East  191  feet  to 
a  stake, 

thence  South    2    26'  42^^  West,  passing  the 
Dalton  Gap  at  667  feet — a  very  deep  gap 
through  which  the  Old  Tellassee  Trail  pass- 
es, 1367.6  feet  to  a  stake, 
thence  South  66    68'  00^  West  149  feet  to 

thence  South  47    06'  06""  West  616  feet  to 

thence  South  62    08'  16''  West  264  feet  to 

o  stake 

thence  South  74    42'  16""  West  166  feet  to 

a  stake 

thence  South  63    02'  U""  West  679  feet  to 

a  stake 

thence  South  26    22'  16""  West  134  feet  to 

a  stake, 

thence  South  16    69'  16^  West  637  feet  to 

a  stake 

thence  South  28    62'  30^  West  783  feet  to 

a  stake, 

thence  South  33    4^  6^  West  617  feet  to 

a  stake 

thence  South    0    31'  61''  East  279.6  feet  to 

a  stake, 

then  South    6    31'  67^  West^.  passing  a  pUe 

of  rocks  at  the  su|^posed  location  of  the  61st 

mile  tree  at  423  fcwi,  463  feet  to  a  stake, 

thence  South    2    40'  30^  East  460  feet  to 

a  stakes 

848 


thence  South  17    21'  2Z''  West  461  feet  to 

a  stake, 

[654]  thence  South  41      01'  06"  West  93 

feet  to  a  stake, 

thence  South  43    46'  39^  West  611  feet  to 

a  stake, 

thence  South  17    49'  27""  West  437  feet  to 

a  stake, 

thence  South  34    00'  30^  West  246  feet  to 

a  stake, 

the  turnpike  road  in  a  deep  gap, 

thence  South  73    30'  00^  West   380.2   feet 

to  a  stake, 

thence  South  60    43'    30^  West  126.4  feel 

to  a  stake, 

thenoe  South  62    18'  00""  West  1304.4  feet 

to  a  stake, 

thence  North  72    19'  00^  West  490  feet  to 

a  stake, 

thenoe  South  67    34'  00^  West  460  feet  to 

a  stake, 

thenoe  North  63    18'  30"  West  366  feet  to 

a  stake, 

thenoe  North  72    23'        West,  passing  the 

Locust  Gap,  where  the  62ad  mile  tree  is  said 

to  have  stood,  at  112  feet,  746  feet  to  a 

stake, 

thence  South  83    42'        West  639.7  feet  to 

a  stake, 

thence  South  34    26'  30^  West   198.7    leet 

to  a  stake, 

thence  South  82    62'  30^  West   631.6   feet 

to  a  stake, 

thenoe  South  64    14'  00^  West  370  feet  to 

a  stake, 

thence  North  76    17'  30^  West  660  feet  to 

a  stake, 

thence  South  76    16'  30^  West  660  feet  to 

a  stake, 

thence  South  69    28'  30''  West  200  feet  to 

a  stake, 

thenoe  South  86    32'  00^  West  400  feet  to 

a  stake, 

thence  South  71    86'  00^  West  670  feet  to 

a  stake, 

thence  South  66    21'  00^  West,  passing  an 

18^  hickory,  supposed  to  be  the  63rd  mile 

tree,  at  344  feet,  600  feet  to  a  stake, 

thenoe  South  10    69'  00^  West  200  feet  to 

a  stake, 

thenoe  South  63    07'  WT  West  160  leet  to 

a  stake, 

thenoe  South  27    44'  00^  West  460  feet  to 

the  top  of  a  high  knob, 

thenoe  South  61    62'  00^  West  680  feet  to 

a  stake, 

thenoe  South  66    Or  00^  West  260  feet  to 

a  stake, 

thenoe  South  46    13'  30^  West  390  feet  to 

a  stake, 

thenoe  South  66    48'  80^  West  160  leet  to 

a  stake, 

thence  South  26    22'  00*  West  220  leet  to 

a  stake, 

148  V.  m. 


NOETH  CAROLINA  T.  TBinfESSKK. 


SS4-dG7 


ttoM  ScHith  1«    ir  OC  Eaat  2S0  fwt  to 
ftsteke, 

[8SS]  thaoM  South  62      44'  30"  Weit  3«0 
feet  to  B  •t«ke, 

Umtdm  South  17     48*  W  Eut  690  leet  to 
Pin*  Knob, 

75  47'  30*  WMt  380  feet  to 

76  27'  30"  WeBt  610  feet  to 
WSM              SS     20'  30"  Weit  460  fast  to 

Ifi    07'  30"  Wert  860  feet  to 

6*    SS*  30*  Weit  680  feet  to 

67    61'  30*  Wert  470  fert  to 

49     £4'  30'  West    pusing    k 

fore  and  aft  hemlock  oorth  of  Little  Tennea- 

■ee  rivtf  at  77S  tc  wheie  the 

di*ergG,  we  srt  up  a  Rock 

^^  inche.wide.'>M'^3£ 

of  it  N. 
ii^r^  OD  the 
northeart  aide  0+00  and  on 
aide  1915,  and  cut  an  X  In  the  top  of  the 
Bock.  Thia  ia  Monument  No.  1.  From  thla 
point,  on  the  7th  da?  of  August  1916,  we  be- 
gan the  survey  and  marking  of  the  line, 
marking  side  line  trees  with  3  hacks  and 
fore  and  aft  treee  with  2  backs  above  ■ 
blaze,  as  follows: 

South  76  11'  00"  West  136  feet  to  the 
river  bank,  thence  down  the  river  on  the 
North  bank  North  38  2V  30*  West  286 
leet  to  a  stake, 

thence  North  26     tr  00"  West  £66  fert  to 
a  stake, 
thence  North  22    IS'  SO"  West  386  feet  to 

thence  North  66     42'  00'  West,  passing  the 
■tump  of  tree  No.  30  at  2GS  feet,  619  feet  to 

78     65'  30'  Wert  361  feet  to 

78    60*  DO"  West  242  fert  to 

86    II'  00-  Weet   372.2   fart 

76    28'  30"  Wert   276.6   fert 

on  the  North  bank  ot  Iiittle 

Tennessee   river    at   low    water   mark,   said 

Boulder  to  4  fert  wide.  10  feet  long  and  8 

fert  high,  and  on  it  we  cut  an  X  and  on  the 

■outheaat  side  of  the  X  wa  cut  N.  C.  1916 

side  TENN.  £0+70.7. 

This    ia    Monument   No.   2    thence    [656] 

South  64    36'  00"  West  313  feet  crosalng 

the  river  to  a  Boulder  on  the  South  bank  of 

the   river  and  on    the   west   bank   of   Slick 

Boulder  is  6  feet  wide,  16 

(Mt  long  and  4  feet  high,  and  on  it  we  cut 

an  Z  and  on  the  east  side  ol  the  X  we  cut 

8«  Ii.  ed.  M 


N.  C.  on  tlie  west  side  TBHN.  on  the  north    ' 
side  1015   and  on  the  south  side  32+63.7. 
This  Boulder  being  "3  MonU' 

ment   No.    1.    This  No.   3. 

Prom  this  point  we  ran  up  and  with  the 
bed  of  Slide  Rock  Creek  as  follows: 
South  30     13'  00'  East  209.3  feet  to  a  X 

thence  South    7    24'  00"  Wert  494  fert  to 

a  X  on  a  roek, 

thenoe  Soutii    4    17'  00"  Eaat  630  fert  to 

a  X  on  a  rock, 

thence  South  38    26'  00-  Wert   360.7    fert 

to  a  X  on  a  rock, 

thence  South  60    21'  OO"  West   605.7    fert 

thence  South     2     36'  30"  Eart    427.6    fert 

to  a  X  on  a  rock, 

tbence  South  21    ST  30*  Eaat    306.6    fert 

to  a  X  on  a  rock,  near  Ravens  Den, 

thence  North  82     29'  30"  West    640.4    fert 

to  a  X  on  a  rock, 

thence  South  87     14'  30"  Wert    173.6    feet 

to  a  X  on  a  rock, 

thence  South  19    21'  30"  Wert   273.3    feet 

t«  a  X  on  a  rock, 

thence  South  39     36'  30"  Eaat    171.0    feet 

to  a  X  on  a  rock, 

tbence  South  70    45'  00"  Eart    320.3    feet 

to  a  X  on  a  rock, 

thence  South  2S     28'  00"  East    177.9     fert 

thence  South  21    30'  30'  West   28S.0    (crt 

to  a  X  on  a  rock, 

thence  North  69     17'  30"  Wert    728.4    fert 

to  a  X  on  a  rock, 

thence  South  88     36'  SO",  Wert    868.0    fert 

to  a  X  on  a  rock, 

thence  North  70     01'  30*  Wert    481.6    fert 

to  a  X  on  a  rock, 

thence  South  60    27'  30*  Wert   413.0   fert 

to  a  X  on  a  rock, 

thence  South     3     19'  00'  West    320.0    fert 

to  a  X  on  a  rook,  at  top  of  lower  falls 

thence  South  47     27'  00"  Bart    4S4.0    fert 

to  a  X  on  a  rock, 

tlience  South  47     16'  00"  Wert    113.0   fert 

to  a  X  on  a  rock, 

thence  North  82     62'  00*  Wert    B81.4    fert 

to  a  X  on  a  rock, 

thence  South  38     42'  00"  Wert    172.7    fert 

to  a  X  on  a  rock, 

tbence  South  14    00'  00"  Eaat    634.6    fert 

to  a  X  on  a  rock, 

thence  South     6     09'  30'  Wert    798.9    fert 

to  a  X  on  a  ixMk, 

[eST]  thence  South  IS    IW  SO"  Eaat  257.7 

feet  to  •  X  on  a  rock, 

thence  South  38     02'  80*  Eaat    S91.8    fert 

to  a  X  on  a  rock, 

thence  South  37     20'  30"  Wert    230.0   fert 

to  a  X  on  a  roek,  near  the  mouth  of  Slick 

Rock  Gap,  branch, 

S4t 


657-669 


SUPBBME  COURT  OF  THE  UNITED  STATES. 


Oct.  TkBM, 


thflooe  North  57    W  3(r  West  485.6   fM* 

to  a  X  on  a  rock, 

thence  N<nrth  85    41'  W  Wert  48241   feet 

to  a  X  on  a  rock, 

thence  South  17     IS'  OCT  West   43241   feet 

to  a  rock  in  Slick  Rock  Creek  near  the  west 

bank  and  about  '30  feet  above  where  the 

Belding  Trail  crosses  the  creek.    This  Rock 

Ib  3  feet  wide,  5  feet  long  and  2  feet  high. 

On  it  we  cut  an  X  and  cut  N.  C.  on  the 

southeast  side,   TENN.  on  the  northwest 

side,  1015  on  the  southwest  side  and  156+ 

60.8  on  the  northeast  side  of  the  cross.  This 

is  Monument  No.  4. 

thence  South  28    W  ZO"  West   189.9    feet 

to  a  X  on  a  rock, 

thence  North  75    04'  80^  West   279.8   feet 

to  a  X  on  a  rock, 

thence  North  47    01'  30^  West  870.5   feet 

to  a  X  on  a  rock, 

thence  North  72    23'  00^  West   8204^   feet 

to  a  Ftake, 

thence  South  19    47'  30^  West  passing  the 

mouth  of  Little  Slick  Rock  Creek  at  85  feet, 

685.2  feet  to  a  X  on  a  rock, 

thence  South  41    03'  00^  West   4654^   feet 

to  a  X  on  a  rock, 

thence  South  24    22'  00^  West,  passing  the 

mouth  of  Nichols  Cove  brandi  at  140  feet, 

622.8  feet  to  a  X  on  a  rock, 

thence  South    6    35'  80^  West   275.5   feet 

to  a  X  on  a  rock, 

thence  South  26    39'  00^  West   518.0   feet 

to  a  X  on  a  rock, 

thence  South    1    58'  00^  East    5074^    feet 

to  a  X  on  a  rock  at  the  Panther  Den, 

thence  South  58    02'  00^  West  276.7   feet 

to  a  X  on  a  rook,* 

thence  South  89    07'  30^  West   185.6   feet 

to  a  X  on  a  rock, 

thoice  South  82    52'  30^  West   287.2   feet 

to  a  X  on  a  rock, 

thence  North  56    19'  30^  West   885.0   feet 

to  a  X  on  a  rock, 

thence  North  52    35'  80^  West   304.0   feet 

to  a  X  on  a  rock, 

thence  South  84    13'  80^  West   281.8   feet 

to  a  X  on  a  rock, 

thence  South  43    16'  80^  West   254.8   feet 

to  a  X  on  a  rock, 

thence  South    9    07'  00^  East    154.4    feet 

to  a  X  on  a  rock, 

[668]  thence  South  86    44'  00"  East  179.6 

feet  to  a  X  on  a  rock, 

thence  South  14    15'  00^  West   173.4   feet 

to  a  X  on  a  rock, 

thence  North  86    45'  80^  West  322.0   feet 

to  a  X  on  a  rock, 

thence  North  71    16'  00^  West  251.4  feet 

to  a  X  on  a  rock, 

thence  North  17    05'  80^  West   405.2   feet 

to  a  X  on  a  rock, 

thenoe  North  68    85'  00^  West  829.5  feet 

to  a  X  on  a  rock, 

860 


thence  South  48    09'  00^  West  20741   feet 

to  a  X  on  a  rock, 

thenoe  South  23    56'  80^  West   869.9   feet 

to  a  X  on  a  rock, 

thenoe  South  44    30'  80^  West     82.0    feet 

to  a  X  on  a  rock, 

thence  South    4    47'  00*  West  425.1   feet 

to  a  X  on  a  rock, 

ihence  South    8    51'  00*  East    129.6    feet 

to  a  X  on  a  rock, 

thenoe  South  53    26'  00^  West   599.4    feet 

to  a  X  on.  a  rock, 

thence  South    2    30'  00^  East    254.6    feet 

to  a  X  on  a  rock, 

thoioe  South  16    07'  30^  East    168.6    feet 

to  a  X  on  a  rock, 

thence  South  35    12'  00*  West   370.0   feet 

to  a  X  on  a  rock, 

thence  North  67    59'  30^  West   393.4   feet 

to  a  X  on  a  rock  at  the  mouth  of  a  small 

branch, 

thence  South  14    36'  80^  West   494.0   feet 

to  a  X  on  a  rock, 

thence  South  70    54'  00^  West   160.5   feet 

to  a  X  on  a  rock, 

thence  North  66    12'  00^  West   561.2    feet 

to  a  X  on  a  rock, 

thence  South  68    50'  00^  West   197.3   feet 

to  a  X  on  a  rock, 

thence  South  18    18'  30^  West   350.1    feet 

to  a  X  on  a  rock, 

thence  South  45     16'  30^  East    241.9    feet 

to  a  X  on  a  rock, 

thence  South  50    11'  30^  East    281.8    feet 

to  a  X  on  a  rock, 

thence  South  43    40'  30^  West   316.2   feet 

to  a  X  on  a  rock, 

thence  South  11    19'  30^  West   238.6    feet 

to  a  stake, 

thenoe  North  83    38'  80^  East    314.4    feet 

to  a  X  on  a  rock, 

thenoe  South    0    44'  00^  East    193.8    feet 

to  a  X  on  a  rock  at  the  mouth  of  a  small 

branch, 

thence  South  84    02'  30^  West   240.0    feet 

to  a  X  on  a  rock, 

tiience  South  11    40'  00*  East    206.7    feet 

to  a  X  on  a  rock, 

tiienoe  South  40    61'  00^  West   539.3   feet 

to  a  X  on  a  rock, 

thenoe  South  10    18'  30^  East  passing  the 

foot  of  falls  at  198  feet,  247.6  feet  to  a  X 

on  a  rock, 

thenoe  South  78    41'  00^  East    134.2    feet 

to  a  X  on  a  rock  in  the  falls, 

[659]  thence  South  12    37'  00"  West  262.6 

feet  to  a  X  on  a  rock  in  the  falls, 

thrace  South  11    28'  30^  East  passing  the 

top  of  falls  at  20  feet,  224.2  feet  to  a  X  on 

a  rook, 

thence  South  23    21'  80"  West  578.6   feel 

to  a  X  on  a  rock, 

thrace  Soutii  48    86'  80"  West   428.6   feet 

to  aX  on  a  rock, 

646  U.  6. 


KOBTH  GABOUNA.  t.  IXNNEB8BE. 


OeuM  South  10  43'  M*  But  21TJ  fast 
to  ■  Large  Boulder  oa  the  Weat  bank  ci 
Slick  Rock  Creek  neu  the  month  of  Big 
Btkck  rknch,  and  at  the  point  of  a 

ridge  Big 

tain  and  near  tree  No.  4S. 
t  feet  wide,  10  fret  long  and 
It  we  cut  an  X  and 
the   X    we   cut   N.   ;;N 
■iile  TENN.  ^t^  1916  and 

en  the  nortbeaat  ^  it  being 

SS,624.&  feet  from  Monument  No.  1.  This  U 
Uonument  No.  6. 

nience  up  aaid  ridge  leading  to  the  Big 
South    2    46'  00' 
a  stake, 
26    W  30*  West   Tei.l    feet 


72  fiO'  00"   Weat  4B8.0  feet 

72  41'  00*  Weat   S32.8  feet 

3S  01'  80-  Wert   160.7  feat 

13  04'  00-  Wert   487.0  feet 

6&  34'  00"  Wert   806.8  fert 

SS^^             14  or  00-  Wert     S1.4  feet 

46  IV  00-  Wert   127.7  fert 

62  42'  30'  Weet    626.8  fert 

30  SO*  OO"   Wert   181.8  fert 

29  60-  80-  Weet   S37.4  fert 

62  64'  SO'  Wert   SGB.3  fert 

S  OS'  30-  Wert   17T.0  fert 

ST  07'  30"  Wert   184.0  fert 

26  04'  30-  West   302.7  fert 

29  16'  00-  Wert   336.0  fert 

42  S3'  00-  Wart   104.0  fert 

68  21'  00-  WMt   814.0  fert 

[•eO]  thence  South  78    SV  OV  Weat  610.6 

feet  to  a  sUke, 

thence  North  73  26'  00-  Wert   6SB.6  fart 

iM^^             63  08'  00'  Wert   281.1  tert' 

■Ji,9t}>M             B6  21'  00-  Wert   270,8  fert 

78  10'  00-  Wert    147.0  fert 

B6  67'  00-  Wert  207.4  fert 


tiunee  South  <0    01'  00-  Wert   342,8   fert 

to  the  top  of  the  Big 

where  wa  art  'imfjim/^    '^ 

«a  thick,  5fiS»M 

high,  and  on  it  we  ent  on  the 
N.  C.  427+26.0  D.  B.  B.  P. 

X  in  mWt  42726  fert 

from  Theoeo  along  Big 

with    Its    meanders 

:g^  'Sib  lines  of  D.  B.  Burn's  former 

14    29'  30-  East  138.1  fert  to 

X  South  8     6^  30'  Eaut  641.4 

fert  to  a  rtake,  themce  Sonth  28    16'  30" 

Esat  pasaing  Harrison    Gap   at   11S6    feet, 

1323.2  fert  to  a  stoke, 

thence  South  11    12'  30"  Wert   810.8    fert 

34    60*  00"  Eart    SIO.T    fert 

20    38'  00'  Sart    187.8    fert 

23    80'  00-  Eart  1083.0  fert 

41     18'  80'  East    311.1    fort 
iS  the  Rock  Staak, 

60     38'  30'    East    364.8    fert 

mim  83    SS-  00"   East   4G3.3    fert 

00     02*  00"  East    48S.4    fert 

37  67'  30"  Eart  208.0  fert 
the  top  of  a  very  high  knoh, 
10    00'  30-  East    674.6    fert 


»    06'  SO-  Bart    686.2    fert 

21    84'  00'  East    106.8    feet 

2    41'  00~  Eart    444.7    fert 
to  Monument  No.  T,  a  Stona  6 
10  inchea  high,  and  cot 

an  X  On  the  eart  side  we 

[861]  ^  C,   1016   and   on   the 

Wert  608+06.    This    Stone 

stands  Gap  and  ia  60^96  fert 

from    Monument    No.    1.    Oontinuing    on 
same  course  228.0  fert  to  a  stake,  thenea 
South  47    60*   30-   Eart   834.7   fert   to   ■ 
stake, 
thence  North  82    06'  SO'  Eart    160.7    fert 


80    40*  30"  I 

67   14'  ao-  I 


:    SeSJ    fert 
•61,0    fert 


40    sr  00-  B«st    1S8.S    fert 
the  Chestnut  Knob, 
6    27'  00-  Eart   801.1    fert 

20    U'  00-  Wart   4SSJ   fert 

Wt 


661-663 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tesm, 


thence  South  33  46'  3(r  Weet  352.4  feet 
to  a  stake, 

thenoe  South  33  62'  OCT  West  460.6  feet 
to  a  stake, 

thence  South  26  05'  00^  West  205.2  feet 
to  a  stake, 

tiience  South  6  21'  30^  West  60.7  feet 
to  a  stake, 

thence  South  17  37'  30''  West  515.8  feet 
to  a  stake, 

thence  South  13  56'  00"  West  139.0  feet 
to  a  stake, 

thence  South  21  45'  00"  East  325.2  feet 
to  a  stake, 

thence  South  42  15'  00"  East  324.9  feet 
to  a  stake, 

thence  South  40    47'  30"    East   327.4    feet 
to  a  stake,  in  the  Denton  Gap, 
thence  South    7    15'  30"  East    335.1    feet 
to  a  stake, 

thence  South  22  31'  30"  West  176.7  feet 
to  a  stake, 

thence  South  14  59'  30"  East  563.9  feet 
to  a  stake, 

thence  South  14    33'  00"  East    355.5    feet 
to  a  stake,  in  the  Cherry  Log  Gap, 
thence  South    4    38'  00"  East    487.5    feet 
to  a  stake, 

thence  South  0  16'  00"  East  71.3  feet 
to  a  stake, 

thence  South  4  01'  30"  East  89.4  feet 
to  a  stake, 

thence  South  16  01'  00"  West  210.3  feet 
to  a  stake, 

thence  South  0  30'  00"  West  326.6  feet 
to  a  stake, 

thence  South  5  30'  30"  West  819.4  feet 
to  a  stake, 

thence  South  40  32'  00"  East  262.6  feet 
to  a  stake, 

thence  South  41  19'  00"  East  343.9  feet 
to  a  stake, 

thence  South  29  48'  00"  West  14.9  feet 
to  a  Large  Boulder  [662]  on  the  Stratton 
Bald  Mountain  at  its  Junction  with  Big 
Fodderstack  Mountain  and  at  the  point 
where  the  two  lines  of  contention  join. 
This  Boulder  is  Monument  No.  8,  and  is  3 
feet  wide  at  its  base,  10  feet  long  and  3 
feet  high.  On  the  top  of  this  Boulder  we 
cut  an  X  on  the  southeast  side  N.  C.  601-|- 
40.7,  and  on  the  northwest  side  TENN. 
1915.  This  Boulder  stands  60,140.7  feet 
from  Monument  no  1,  thence  along  the  top 
of  the  main  ridge  that  divides  the*  waters 
of  Citico  creek,  North  Fork  of  Tellico  river 
and  Sycamore  creek  from  the  waters  of 
Santeetlah  and  Snowbird  creeks,  as  fol- 
lows: 

thence  South  73  34'  00"  West  194.0  feet 
to  a  stake, 

tiience  South  50    84'  30"  West   393.6   feet 
to  a  stakfl^ 
85$ 


thence  South  62    4^  30"  West     84.0    feet 

to  a  stake, 

thenoe  South  50    65'  30"  West   178.0   feet 

to  a  stake, 

thence  South  31    43'  30"  West   301.0    feet 

to  a  stake, 

thence  South  32    02'  30"  West  1575.8  feet 

to  a  stake, 

thence  South  48    45'  30"  West   631.2   feet 

to  a  stake, 

thence  South  24    54'  30"  West    113.6    feet 

to  a  stake, 

thaice  South '25    23'  30"  West   581.5    feet 

to  a  stake, 

thence  South  34    27'  30"  West   502.0    feet 

to  a  stake, 

thence  South  31    55'  30"  West    143.2    feet 

to  a  stake, 

thence  South  35    18'  00"  West   364.8    feet 

to  a  stake, 

thence  South  35    39'  00"  West   623.6   feet 

to  a  stake, 

thence  South    8    68'  30"  West   480.4    feet 

to  a  stake, 

thenoe  South  40    20'  00"  Wes^   523.0    feet 

to  a  stake, 

thence  South  59    35'  00"  West   768.0    feet 

to  a  stake, 

thence  South  12    45'  00"  West       crossing 

the  Tellico  Trail  at  297  feet,  on  top  of  the 

Strawberry  Knob, 

639.3  feet  to  a  stake, 

thence  South  71    42'  30"  West   591.7    feet 

to  a  stake, 

thence  South  86    36'  30"  West    209.3  feet 

to  a  stake, 

thence  South  68    49'  30"  West   477.7    feet 

to  a  stake, 

thence  North  71    42'  00"  West   332.5    feet 

to  a  stake, 

thence  South  79    01'  00"    West  362.8  feet 

to  a  stake, 

thenoe  South  70    ^57'  00"  West   412.4   feet 

to  a  stake, 

[663]  thence  South  73    39'  00"  West  383.9 

feet  to  a  stake  at  Rock  Stop  Bear  Stand, 

thence  South  28    26'  00"  West   389.1    feet 

to  a  stake, 

thence  South  45    42'  00"  West  281.3    feet 

to  a  stake, 

thence  South  72    20'  30"  West   490.3    feet 

to  a  stake, 

thence  South  73    31'  30"  West   352.7    feet 

to  a  stake, 

thence  South  72    44'  30"  West   227.3   fa^ 

to  a  stake, 

thence  South  26    09'  00"  West   208.0   feet 

to  a  stake, 

thence  South  26    31'  00"  West   698.7    feek 

to  a  stake,  in  Beech  Gap, 

thence  South  11    01'  00"  West   269.0   fas* 

to  a  stake, 

thence  South  60    61'  30"  East    403.0    feel 

to  a  stake, 

940  V.  8. 


Uu,  NOBTB  CABOLDfA 

Iknce  South  SS  65'  30"  Eut    ICl.O    feet 

30  Sr  30'  BHt    360.0    feet 

?4r3S  32  SB'  30"  But   UTZ.4    (eet 

^^a  36  £4'  OO'  West    142.9    leet 

37  42"  30*  Weat   sai.V   (eet 

47  63'  00"  WMt    292.8    Iwt 

rs 

12  09*  30'  West    608.7    feet 

0  08'  00'  Wert   031J    feet 

7«  Sf  00-  But    6B0.4    fMt 

7C  12'  00"  EMt    187.0    feet 

81  49'  00"  Eut    431.4    feet 

66  09'  30"  Eut  pusiDg 

the  mouD- 
■tske. 


.  TSNNJ 

thence  South  IB  SS'  00"  West   fil4.S    fert 

tos  Btske, 

thence  South    1  00*  00"  Eut    673.6    fert 

to  the  top  ol  little  Haw  Knob, 

theuM  South  11  SI'  SO"  West   370.2    fert 

IB  43'  30"  Sut    S02.2    (eet 


SdC! 


tain  St  14B  feet, 
thence  South  2S  >m 

John  MesdowB  Osp  st  108  feet 
to  s  stske, 

19    13'  00"  Esst    288.7 


22  3S'  30"  But    400Jf  feet 

25  04'  30"  Esrt    144.0  fert 
^^ 

18  23'  30"  Wert   785.0  fert 
'M-     ipBf:;        the  top  of  John  Knob, 

t^^g  39  68'  00'  West   148.4 '  fert 

3B  22'  00"  Wert   147.6  fart 

48  28'  00"  Wert   434.0  fert   ^ 

[B64]  thence  South  16    40'  00"  Wert  746.0 

feet  to  a  atkke, 

thence  South     0  it'  DO*  Wert    341.0  fert 

2  47'  00*  Esrt    SB3.4  fsrt 

17  49'  00*  Weat    371.0  fert 

20  38'  GO"  West    290.0  leet 

IS  42'  30"  West    384.6  fert 

20  37'  30"  West   317.0  fart 

le  47'  00'  Eut    312.0  fert 

fie  10*  00"  Wert   SU.6  fart 

17  IS'  00*  Weat    248J  fert 

22  S3'  00'  Wert   284.6  fart 


30  8S'  SO"  Eut  passing  Mc- 
■tone  msrkad  N.  C.  78  at 
[art  to  a  rtske, 

64     SB'  30*  Eart    Z43.6  fert 

67     IS'  30'  Eut    344.0  fert 

79    08'  30"  Eut    693.6  feet 

BS    sr  00-  Eut    356.5  fert 

86  S«'  80-    East    302.6  feet 

02    04'  30-  But    7SSJ[  fert 

t>''.'^$       the  top  of  Haw  Knob, 

l|"             6    04'  SO-  Bart    302.7  fert 

1    04'  30'  Eart    103.1  fert 

4    36'  SO-  Wert   321.7  fert 

•    11'  W  Bart    S26J>  fert 

;gS(m  32    sr  so-  Sart    121.0  fart 

49     84'  00-  Eart    478J  fart 

37    48'  00-  Bart    943.1  fert 

M    lO*  00*  Bart    71S.6  fert 

66    03'  so-  Eart    206.3  fart 

S7    47  SO"  Eart    fi8S.7  fert 

71    16'  00"  Eut    223.8  fert 

[685]  theooe  South  5  23'  00"  Weat  111.2 

feet  t«  a  itake, 

thence  South  SO    09'  00-  Wert   30G.O  lert 

40    46'  00'  Wert   607.0  fert 

21     14'  00-  Wert   226.0  fert 

6  8S'  00-  Wert  170.0  fert 
uorthweat  end  pf  Lauiel  Top^ 

21    2S'  30"  Eart    466.4  fart. 

■ontheart  end  of  I«nral  Top, 

S«    M'  00*  Wert   206.4  faat. 

4S    ir  SO"  Wert  1101.9  fert. 

44    Sr  SO"  Wart   178.8  fart 


SDPBEia  OODBT  07 

thMwe  Sonth  05    62'  SO"  WmI   140J(   f«et 
to  ft  tUke,  on  the  top  of  Lcbo  Eaab, 
thence  South  4S    01'  SO"  Wvt    lOIIJ    feet 

tlWLM  South  00  33'  OC  Wert  UOJ  feet 
to  ■  Rock  Ledge  projeoting  out  of  the 
grannd  2  fert  high,  6  l«et  laii(  and  1  foot 
thick  ud  marked 


c.  oo.  I  a.  Co. 

I 

Thli  le  the  place  known  aa  the  Connt^  Cor- 
tiera  and  we  naed  thU  rock  for  Monu- 
ment No.  9,  and  on  the  top  of  It  we  cut 
an  X  on  the  loutheart  face  N.  C.  19IS  and 
4»  TENN.   1003+90.0. 

Thii  Stone  ii  from  Uonuinent 

Ho.  1  and  ii  the  point  at  which  the  Unea 
of    contention    diverge;    thence    down    the 
n  meandera  South  SI    21' 
B!i  the  Hog  Jaw  Gap  at  6U 

tert,  J!5!i^  a  lUke, 

K     8>'  30*  Weet    311.4    feet 

42     13'  OO'  Wcit    244.0    feet 

72    04'  OV  Weit   337JJ   feet 

81    M'  00-  Weat     47.7    feet 
of  Qraeay  Top, 
ihence  South  00    SI'  00~  Weat    71.7    fart 
to  the  Junction   of  the   State  Bfdge   and 
Rough  Ridge,  known  aa  Little  Junethm, 
thence  South  OS     81'  00*  Wert    137.0    feet 

[eee]  thence  South  24  14'  80~  Weat  271.1 
feet  to  a  eUke, 

SI    SV  00-  Wert   3S1.4   feet 

SO    01'  30*  Weat   412.4   feet 

n 

23     40-  00"  Weet    236.2    lert 

n 

'uWm  34    11'  30-  W«t   e7«.«   fert 
•t 
WBISR  U    08'  00*  Wert  1486.2  feet 

40  10*  30-  Weat   628.*  fert 

61  27'  SO-  Wert   002.6  fert 

28  Si'  aO-  Wert   208.6  fert 

H  9V  or  Wert   4D8.7  fert 

is  W  OV  Wert    648.2  feet 

IS  10'  00*  Wert   870.1  fert 

66  66'  80*  Weat   260.8  fart 

a»  04'  80-  Wert   267a  fert 


THE  innTBD  STATES.  Oor.  Ton, 

thence  South  S8    66'  Sff'  WMt   UIZ   fert 

"'frHT!?'  88    68'  30-  Wert   431.8    fert 

r3 

S8    SO*  30-  Wert    700.1    feet 

ZS    17'  00-  Wert   831.7    feet 

10    32*  00-  Eart    888.1    fert 

37    30*  00-  Wert   17S.6   hrt 

68    20'  00-  Wert   8S8J[    fert 

Gap  where  we  act  a  Straw  6 

7  luchM  wide  and  18  inchea 

high,  and  on  top  of  it  we  cut  an  X  on  the 

■outheart  aide  N.  C.  1016  on  the  northwert 

on    tiie    northeart    eide 

■tone  atanda  112,800  fert 

•^^^  -^SS:^^M  No.   1.  and  U  Monument 

07    29'  00-  Wert  140.6  fert 

46    20*  00*  Wert  468.6  fert 

aW*!  88  '  13'  00-  Wert  S42.S  fert 

62    68'  SO"  Wert  S81.6  fert 

m 

81     00*  30-  Wrtt    S94.S    feet 

70    48*  00'  Wert   647.2   fert 

83    56'  30*  Wert   414JI    fert 

■iiSff*  70     30'  00-  Wert    406.1    fert 
1§  Rock,  a  large  Boulder 

over  one  a  tree  haa  grown,  aald 

Rock  ia 
[667] 

feet  to  a  etake, 
thence  South  61    61'  30"  West   S34.7    fert 


57   47'  00"  Weet  498.6 


68  58'  00"  Wert  361.9  fert 

77  16'  30'  Weat  843.6  fert 

65  66'  00"  Wert  384.4  fert 
iii^m  88  28'  00-  Wert  132.0  fert 

66  16'  00-  Wcit  241.6  fert 
68  43'  30-  WMt  133.6  fert 
66  05'  00-  Wert  474.4  fert 

■^^  81  80*  80*  Wert  308.0  fert 

70  04'  80-  WMt  601.0  (ert 

57  66'  00-  Weet  615.8  lert 
take, 

SM  D.  B. 


1916. 


NORTH  CABOUNA  t.  TENKE88EK. 


667,  M8 


thcnee  South  79  41'  W  West  4U  J  ImI 
to  a  stake, 

thence  South  69  40^  0<r  West  16S.7  feet 
to  a  stake, 

thence  South  51  9r  W  West  878.4  feet 
to  a  stake, 

thence  South  72  ir  OCT  West  282.4  feet 
to  Monument  No.  11 — a  Stone  6  inches 
thick,  14  inches  wide  and  18  inches  high. 
On  the  top  of  it  we  cut  an  X  on  the  south- 
cast  side  N.  C.  on  the  southwest  side  1916 
on  the  northwest  side  TENN.  on  the  north- 
east Bide  1210+69.0 

This  Stone  stands  121,069  feet  from  Monu- 
ment No.  1  and  61  feet  from  the  northeast 
bank  of  Tellico  river,  thence  crossing  Tellico 
river  South  60  44'  30^  West  138.0  feet  to 
a  stake, 

thence  South  36  48'  80^  West  107.7  feet 
to  a  stake, 

thence  South  48  47'  80^  West  81.9  feet 
to  a  stake, 

thence  South  80  17'  80^  West  120a  feet 
to  a  stake, 

thence  South  86  62*  30^  West  202.1  feet 
to  a  stake, 

thence  South  48    47'  00"  West  passing  the 
86  Mile  Tree,  an  18  inch  holly  marked  86 
M  at  96  feet,  131.7  feet  to  a  stake, 
thence  South  86    26'  00"  West   396.4   feet 
to  a  stake, 

thence  South  17  38'  30"  West  147.4  feet 
to  a  stake, 

thence  South  84  08'  80"  East  489.7  feet 
to  a  stake, 

thence  South  10  82'  00'  East  242.6  feet 
to  a  stake, 

thence  South  46  26'  00"  West  416.8  feet 
to  a  stake, 

thence  South  87  82'  00^  West  286.8  lest 
to  a  stake, 

[668]  thence  South  70  18'  00"  Weet  864.0 
feet  to  a  stake, 
60  li.  ed. 


thenoe  South  86    87'  80"  West  481.8   fast 
to  a  stake, 

thence  South  68    28'  00^  West   472.4   feet 
to  a  itfiVft. 

thenoe  South    6    00'  80"  West  298.4   fest 
to  a  stake, 

thence  South  76    17'  SO"  Weal   684.8   feet 
to  a  stake, 

thenoe  South  24    87'  SO"  West   867.1   feet 
to -a  stake^ 

thence  South  74    21'  80"  West   809.8   feat 
to  a  stake^ 

thoice  South  21    48'  30"  West   446.6    fest 
to  a  stake^ 

thence  South  88    11'  00"  West  460JI   feet 
to  a  stake^ 

thence  South  64  02'  00"  West  261.6  feet 
to  the  top  of  Jenks  Knob  at  the  point  where 
the  two  lines  of  contention  Join.  Here  we 
set  up  Monument  No.  12-— a  Stone  4  inches 
thick,  8  inches  wide  and  18  inehes  high  on 
top  of  which  we  cut  an  X  on  the  southeast 
side  N.  C  on  the  southwest  aide  1916  on 
the  northwest  side  TENN.  and  on  the  north- 
east side  1277-f48.2.  This  Stone  stands 
127,748.2  feet  from  Monument  No.  1  and  at 
the  end  of  the  contention  in  this  cause. 
Signed  this  the  20th  day  of  October,  1916. 

(Signed)    D.  B.  Bums. 

(Signed)  W.  D.  Hala. 

(Signed)  Joseph  Hyde  Pratt, 

Chairman. 

On  eonsideration  whereof. 

It  is  now  here  ordered,  adjudged,  and  de- 
creed bj  this  court  that  the  real,  certain, 
and  true  boimdary  line  between  the  states  of 
North  Carolina  and  Tennessee  between  said 
certain  points  is  as  delineated  in  the  said 
report  and  on  the  map  attached  thereto  and 
made  a  part  hereof. 

It  is  further  ordered,  adjudged,  and  da- 
creed  that  each  party  pay  one  half  of  the 
costs  in  this  eaaa. 

855 


CASES 


ARGTJBD  AND   DECIDED 


SUPREME  COURT 


OP  THB 


UNITED  STATES 


▲T 


OCTOBER  TEEM,   1915. 


Vol  241. 


k^ 


Xi.  ed. 


•67 


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THE  DECISIONS 


QV  THB 


Supreme  Court  of  the  United  States 


IV 


OCTOBER  TERM,  1915. 


CHIN  FONG,  Appt., 

V. 

SAMUEL  W.  BACKUS,  CommiBsioner  of 
Immigration  for  the  Port  of  San  Fran- 
daoo. 

(See  S.  C.  Beporter's  od.  1-6.) 

Appeal  ~  flrom  district  court  ~  Feder- 
al question  —  construction  of  treaty. 

The  contention  on  habeas  corpus  that 
the  immigration  officers,  by  denying  admis- 
sion to  a  Chinaman  as  a  returning  mer- 
chant because  his  original  entry  was 
surreptitious,  superadded  qualifications  for 
re-entry  to  those  prescribed  oy  the  act  of  No- 
▼ember  3,  1883  (28  Stat,  at  L.  7,  chap.  14, 
Comp.  Stat.  1013,  |  4324),  |  2,  and  hence 
infringed  the  obligations  of  the  treaty  of 
November  17,  1880  (22  Stat,  at  L.  826), 
between  the  United  States  and  China,  al- 
lowing to  Chinese  merchants  freedom  of 
Ingress  and  egress  in  the  manner  permitted 
to  citizens  of  the  most  favored  nations, — 
does  not  invohre  the  oonstmction  of  a  treaty 
within  the  meaning  of  the  provisions  of  the 
Judicial  Code,  |  238,  authorizing  direct  ap- 
peals from  the  district  courts  to  the  Fed- 
eral Supreme  Court. 

(For  other  cases,  see  Appeal  and  Brror,  988- 
080,  In  Digest  Sap.  Ct.  1908.] 

[No.  664.] 

Argued  April  6  and  6,  1916.    Decided  April 

17,  1016. 

APPEAL  from  the  District  Court  of  the 
United  States  for  the  Northern  Dis- 
triet   of    California   to    review    an    order 


NoTB.-— On  direct  review  in  Federal  Su- 
preme Court  of  judgments  of  district  or 
cbeuit  eourts — see  notes  to  Qwin  v.  United 
States,  46  L.  ed.  U.  S.  741,  and  B.  Altman 
&  Co.  ▼.  United  States,  66  L.  sd.  U.  S.  894. 1 
•0  li.  ed. 


refusing  relief  by  habeas  corpus  to  a  China- 
man in  custody  pending  deportation.  Dis- 
missed for  want  of  jurisdiction. 

See  same  case  below,  213  Fed.  288. 

The  facts  are  stated  in  the  opinion. 

Mr.  Jackson  H.  Ralston  argued  the 
cause,  and,  with  Mr.  WiUiam  £.  Richardson, 
filed  a  bri^  for  appellaat. 

Assistant  Attorney  General  Wallace 
argued  the  cause  and  filed  a  brief  for  ap- 
pellee: 

The  Sppeal  in  this  case  should  be  dis- 
missed for  lack  of  jurisdiction. 

Sloan  V.  United  States,  103  U.  S.  614, 
620,  48  L.  ed.  814,  817,  24  Sup.  Ct.  Rep. 
570;  Lau  Ow  Bew  v.  United  States,  144 
U.  S.  47,  58,  36  L.  ed.  340,  344,  12  Sup.  Ct. 
Rep.  517,  141  U.  S.  583,  35  L.  ed.  868,  12 
Sup.  Ct.  Rep.  43;  Low  Wah  Suey  v.  Backus, 
225  U.  S.  460,  468,  56  L.  ed.  1165,  1167,  32 
Sup.  Ct.  Rep.  734;  Brolan  v.  United  States, 
236  U.  S.  216,  218,  50  L.  ed.  544,  547,  35 
Sup.  Ct.  Rep.  285;  Lamar  v.  United  States, 
240  U.  S.  60,  ante,  526,  36  Sup.  Ct.  Rep. 
255;  Norton  v.  Whiteside,  230  U.  S.  144, 
ante,  186,  36  Sup.  Ct.  Rep.  07. 

[2]  Mr.  Justice  McKenna  delivered  the 
q>inion  of  the  court: 

Appeal  from  a  judgment  dismissing  a 
petition  for  habeas  corpus  and  remanding 
petitioner  to  the  custody  of  the  Commis- 
sioner of  Immigration  for  the  Port  of  San 
Francisco,  in  whose  custody  he  was,  pend- 
ing petitioner's  deportation. 

A  summaiy  of  the  petition  made  by  the 
district  court  is  as  follows: 

"Petitioner  Chin  Fong,  who  had  been  a 
resident  of  the  United  States  for  a  numb' 
of  years,  dqiarted  for  China  in  Novem' 


^-4 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Teem, 


1012;  tliat  before  he  left  he  applied  for  a 
pre-inTestigation  as  to  his  status  as  a  mer- 
chant»  and  a  certificate  was  denied  him  on 
the  ground  that  his  original  entry  into 
this  country  was  surreptitious;  that  not- 
withstanding this  denial  the  petitioner  left 
the  country,  and  is  now  endeavoring  to  be- 
enter  as  a  returning  Chinese  merchant;  that 
he  presents  the  affidavits  of  a  member  of 
the  New  York  firm  to  which  he  claims  to  be- 
long and  of  two  reputable  Americans  sup- 
porting his  claim;  that  notwithstanding 
these  facts  he  has  been  denied  admission  and 
ordered  deported  on  the  same  ground  that 
his  pre-investigation  certificate  was  denied, 
that  is  to  say,  because  his  original  entry 
was  surreptitious;  that  in  so  deciding  the 
immigration  department  has  exceeded  its 
authority,  as  that  question  can  only  be  de- 
termined under  the  exclusion  laws  by  a 
justice,  judge,  or  commissioner."  [213  Fed. 
288.] 

A  demurrer  was  interposed  to  the  peti- 
tion, which  was  sustained,  the  court  say- 
ing: "Had  the  petitioner  been  content  to 
remain  in  this  country,  he  could  have  been 
deported  only  after  a  hearing  before  a 
justice,  judge,  or  commissioner.  But  as  he 
left  the  country  voluntarily,  and  even  after 
a  preinvestigation  certificate  was  denied 
him,  the  question  of  his  right  to  re-entry 
lies  peculiarly  with  the  immigration  depart- 
ment, and  as  they  have  found  [3]  that  he  is 
not  entitled  to  re-enter,  such  finding  can- 
not be  disturbed.  A  different  rule  prevails, 
and  a  different  tribunal  determines,  in  the 
case  of  a  Chinese  applying  to  enter,  from 
that  of  one  already  in  this  country  whom 
it  is  sought  to  deport,  under  the  exclusion 
laws." 

The  decision  of  the  court  is  contested 
and  it  is  asserted  (1)  that  the  petition  was 
sufficient  to  entitle  petitioner  to  a  dis- 
charge; (2)  that  the  Commissioner  of  Im- 
migration and  Secretary  of  Labor  could 
not  require  a  greater  and  different  degree 
of  proof  than  that  specified  in  §  2  of  the 
act  of  Congress  of  May  5,  1892,  entitled, 
"An  Act  to  Prohibit  the  Coming  of  Chinese 
Persons  into  the  United  States"  [27  Stot. 
at  L.  25,  chap.  60,  Comp.  Stat.  1913,  § 
4315];  (3)  that  petitioner  furnished  the 
degree  of  proof  required  by  the  law;  (4) 
that  the  rights  guaranteed  petitioner  un- 
der the  treaty  between  the  United  States 
and  China  concerning  immigration,  Novem- 
ber 17,  1880  [22  Stat,  at  L.  826],  were  un- 
duly and  unlawfully  infringed;  and  (5) 
that  the  decision  of  the  Commissioner  was 
against  the  law  and  was  an  abuse  of  dis- 
cretion. 

The  i^peal  is  direct  from  the  district 
court,  and  can  only  be  sustained  against 
the  motion  of  the  United  States  to  dismiss 
MO 


for  want  of  jurisdiction  in  this  court  if 
there  is  a  substantial  question  under  the 
Constitution  of  the  United  States  or  a 
treaty  made  under  their  authority,  §  238 
of  the  Judicial  Code  [36  Stat,  at  L.  1157, 
chap.  231,  Comp.  Stat.  1913,  %  1215]  pcr< 
mitting  an  appeal  from  a  district  cuurt 
when  a  constitutional  question  is  involved 
and  in  any  case  "in  which  .  .  .  the  valid- 
ity or  construction  of  any  treaty  made  un- 
der its  [United  States]  authority  is  drawn 
in  question." 

It  will  be  observed  that  appellant  based 
his  right  to  land  solely  on  the  ground  that 
he  had  been  a  merchant  in  the  United  States 
before  his  departure  to  China,  and  that, 
therefore,  it  was  not  competent  for  the  im- 
migration officers  to  inquire  or  determine 
whether  his  original  entry  into  the  United 
States  was  open  or  surreptitious  and  his 
stay  therein  legal  or  illegal.  "The  princi- 
pal proposition  that  [4]  we  desire  to  main- 
tain," counsel  say,  "and  which  has  apparent- 
ly been  ignored  l^  the  Department  of  Labor, 
is  that  when  Congress  has  definitely  fixed 
the  tests  and  qualifications  attendant  upon 
the  determination  of  a  given  act,  it  is  not 
within  the  power  of  an  administrative  of- 
ficer to  add  to  or  subtract  from  the  congres- 
sional rule."  The  case  of  Lau  Ow  Bew  v. 
United  SUtes,  144  U.  S.  47,  36  L.  ed.  340, 
12  Sup.  Ct.  Rep.  517,  is  cited.  For  the 
"congressional  rule"  counsel  refer  to  §  2 
of  the  act  of  November  3,  1803  (28  Stat,  at 
L.  7,  chap.  14,  Comp.  SUt.  1013,  §  4324), 
which  reads  as  follows: 

"Where  an  application  is  made  by  a 
Chinaman  for  entrance  into  the  United 
States  on  the  ground  that  he  was  formerly 
engaged  in  this  country  as  a  merchant,  he 
shall  establish  by  the  testimony  of  two 
credible  witnesses  other  than  Chinese  the 
fact  that  he  conducted  such  business  as 
hereinbefore  defined  for  at  least  one  year  be- 
fore his  departure  from  the  United  States, 
and  that  during  such  year  he  was  not  en- 
gaged in  the  performance  of  any  manual 
labor,  except  such  as  was  necessary  in  the 
conduct  of  his  business  as  such  merchant, 
and  in  default  of  such  proof  shall  be  refused 
landing." 

It  is  contended  that  the  section  requires 
proof  by  a  Chinaman  seeking  entrance  into 
the  United  States  of  two  facts  only — (1) 
that  he  had  been  a  merchant  for  one  year 
before  his  departure,  and  (2)  that  during 
such  time  he  had  not  engaged  in  manual 
labor  except  such  as  was  necessary  in  the 
conduct  of  his  business  as  such  merchant. 
These  were  the  only  conditions  of  the  right 
to  enter,  it  is  contended,  and  it  was  an  ir- 
relevant inquiry  whether  he  "originally 
entered  as  a  laborer  or  even  surreptitious- 
ly."   And  in  emphasis  counsel  say:     The 

141  V.  8. 


1915. 


]^SLLY  ▼.  GRIFFIN. 


■umner  of  entry  was  entirely  ignored  hj 
Congrean." 

These  being  the  conditions,  it  is  hence 
asserted  that  if  the  Department  of  Labor 
may  superadd  one  qualification,  it  may  an- 
other,  "until  the  law  becomes  entirely  un- 
recognizable." So  far  manifestly  there  is 
nothing  but  an  appeal  to  the  statute,  but 
the  treaty  is  attempted  to  be  invoked  [6] 
by  the  following:  *'Such  a  course  [the  addi- 
tion to  the  qualifications  of  the  statute] 
would  be  in  plain  derogation  of  the  treaty 
obligations  between  the  United  States  and 
China,  allowing  to  Chinese  merchants  free- 
doim  of  egress  and  ingress  in  the  manner 
permitted  to  citizens  of  the  most  favored 
nations,  the  essential  fact  by  law  and  treaty 
being  merely  that  of  mercantile  status." 

No  provision  of  the  treaty  is  cited  from 
which  the  contention  is  an  applicable  de- 
duction, nor  are  we  disposed  to  quote  and 
comment  on  the  entire  treaty  in  answer  to 
the  contention.  See  22  Stat,  at  L.  826; 
also  I^u  Ow  Bew  v.  United  States,  supra. 
The  "merchant"  defined  by  it  does  not  in- 
clude petitioner.  It  was  the  definition  of 
the  status  acquired  in  China,  not  acquired 
in  the  United  States,  and,  having  been  ac- 
quired in  China,  gave  access  to  the  United 
States,  and  after  access  freedom  of  move- 
ment as  citizens  of  the  most  favored  nations. 
And  this  privilege  was  given  as  well  to 
Chinese  laborers  then  (1880)  in  the  United 
SUtes. 

We  think,  therefore,  there  is  no  substan- 
tial merit  in  the  contention  that  the  case 
involves  the  construction  of  a  treaty,  and 
that  the  rights  of  petitioner  can  rest 
only  upon  the  statutes  regulating  Chinese 
immigration.  So  concluding,  we  are  not 
called  upon  to  decide  or  express  opin- 
ion whether  petitioner's  original  entry  into 
the  United  States  and  his  subsequent  resi- 
dence therein  were  illegal,  and  whether  he 
eould  acquire  by  either  a  status  which  the 
immigration  oflicers  were  without  power  to 
disregard. 

Dismissed. 

Mr.  Justice  McReynolds  took  no  part  in 
the  consideration  and  decision  of  this  case. 


[6]  THOMAS  KELLY,  Appt., 

V. 

ELVIN  J.  GRIFFIN,  Jailer  of  Lake  County, 
Illinois,  and  John  J.  Bradley,  United 
States  Marshal  for  the  Northern  District 
of  Illinois. 

(See  S.  C.  Reporter's  ed.  6-15.) 

Habeas  corpus  —  extradition  —  Illegal 
arrest  ^  release  and  rearrest. 
1.  The  omission  of  any  formal  act  of 
•0  li.  ed. 


I  release  and  rearrest  of  a  person  arrested  by 
'  the  local  municipal  police  without  a  war- 
rant, upon  a  tel^am  from  the  authorities 
of  the  foreign  sovemment  seeking  his  ex- 
tradition, fumiuies  no  ground  for  his  dis- 
charge on  habeas  corpus  from  detention  un- 
der an  extradition  warrant  subsequently 
issued  by  the  United  States  commissioner, 
no  matt^  how  illegal  such  arrest  may  have 
been. 

[For  other  cases,  see  Habeas  Corpos,  II.  b^  in 
Digest  Sup.  Ct.  1008.] 

Habeas  corpus  —  extradition  —  soffl- 
clency  of  complaint. 

2.  A  eomplaint  in  foreign  extradition 
proceedinffs  charging  perjury  is  not  insuffi- 
cient on  habeas  corpus,  where  the  alleged 
false  statements  were  in  fact  material,  be- 
cause, under  the  law  of  the  demanding  gov- 
ernment, some  possible  false  statements  may 
be  perjury  that,  by  reason  of  their  imma- 
teriality, would  not  constitute  that  offense 
under  the  law  of  the  surrendering  state. 
[For  other  cases,  see  Habeas  Corpus,  IL  b.  In 

Digest  Sup.  Ct  1008.] 

Habeas   corpus  —  extradition  —  pre- 
sumptions. 

3.  The  regularity  of  proceedings  be- 
fore a  foreign  legislative  conunittee  engaged 
in  investigating  frauds  in  the  construction 
of  government  buildings  wiU.be  presumed 
when  inquiring  on  habeas  corpus  into  a  de- 
tention to  await  extradition  on  the  charge 
of  perjury  before  such  committee,  in  view 
of  the  nature  and  purpose  of  the  investiga- 
tion, and  the  fact  that  the  accused  ap- 
peared before  it  without*  objection. 

[For  other  cases,  see  Habeas  Corpus,  II.  b,  In 
Digest  Sup.  Ct  1008.] 

Habeas  corpus  ^  extradition  —  sufll- 
dency  of  complaint  —  false  pretenses. 

4.  A  complaint  in  foreign  extradition 
proceedings  charging  the  obtaining  of  money 
from  the  demanding  government  by  false 
representations  in  bills  or  progress  es- 
timates as  to  the  amounts  of  material  used 
in  extra  work  on  government  buildings  is 
sufficient  on  habeas  corpus,  although  the 
amounts  demanded  by  the  bills  were  paid, 
not  upon  the  bills,  but  upon  vouchers  com- 

NoTE. — On  habeas  corpus  to  review  ex- 
tradition proceedings — see  notes  to  State 
V.  Jackson,  1  L.RJ^.  373;  Ex  parte  Davis, 
12  LJIJ^.(N.S.)  225;  Com.  ex.  rel.  Flower 
V.  Superintendent  of  County  Prison,  21 
LJIA.(N.S.)  030;  Wisener  v.  Burrell,  34 
LJtA.(K.S.)  755;  and  Oteisa  y  Cortes  v. 
Jacobus,  34  L.  ed.  U.  S.  464. 

As  to  what  papers  are  necessary  to  ob- 
tain surrender  of  fugitive  from  another 
state — see  note  to  £x  parte  Hart,  28  L.R.A. 
804. 

On  the  right  of  court  of  asylum  state  to 
examine  in  interstate  extradition  proceed- 
ings the  sufficiency  of  papers  charging  the 
of^se  for  which  the  return  of  the  fugi- 
tive is  demanded— see  note  to  Re  Water- 
man, 11  LJIA..(N.S.)  424. 

On  the  right  to  try  returned  fugitive  for 
crime  other  than  that  for  which  ne  is  ex- 
tradited—see note  to  Re  Flacky  47  L.RA. 
(N.S.)  807. 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  Tmmm, 


log  from  the  department  of  public  works, 
and  although  the  government  architect  who 
certified  the  bills  was  not  deceived,  where 
the  person  who  made  out  the  certificates 
relied  upon  the  bills  in  good  faith,  and  with- 
out the  bills  the  payments  would  not  have 
been  made. 

[For  other  cases,  see  Habeas  Corpus,  II.  b,  In 
Digest  Sup.  Ct  1908.] 

Habeas  corpus  —  extradition  —  pre- 
snraption. 

5.  The  Federal  courts  will  assume,  when 
inquiring  on  habeas  corpus  into  the  holding 
of  a  person  for  extradition  to  Canada,  that 
the  Canadian  government  will  respect  the 
convention  between  the  United  States  and 
Great  Britain,  and  will  not  try  the  accused 
upon  other  charges  than  those  upon  which 
the  extradition  was  allowed. 

[For  other  cases,   see   Habeas  Corpus,   II.   b; 
BxtradiUoD,  V.,  in  Digest  Sup.  Ct  1908.] 

[No.    777.] 

Argued  April  6  and  7,  1916.    Decided  April 

17,  1916. 

APPEAL  from  the  District  Court  of  the 
United  States  for  the  Northern  Dis- 
trict of  Illinois  to  review  an  order  refusing 
to  discharge  on  habeas  corpus  a  person  in 
custody  imder  an  extradition  warrant.  Af- 
firmed. 
The  facts  are  stated  in  the  opinion. 

Mr.  John  8.  Bfiller  argued  the  cause, 
and,  with  Messrs.  Edward  Osgood  Brown 
and  Pierce  Butler,  filed  a  brief  for  appel- 
lant: 

Appellant's  arrest  and  detention  without 
warrant  were  unlawful. 

Ex  parte  Oohen,  8  Can.  Crim.  Cas.  312; 
Re  Dickey,  8  Can.  Crim.  Cas.  318;  State  v. 
Shelton,  79  N.  C.  605 ;  Malcolmson  v.  Scott, 
66  Uietk,  469,  23  N.  W.  166;  Scott  v.  Eld- 
ridge,  164  Mass.  25,  12  L.R.A.  379,  27  N.  E. 
677;  Harris  v.  Louisville,  N.  O.  k  T.  R.  Co. 
36  Fed.  116;  Kurts  v.  Moffltt,  116  U.  S. 
487,  29  L.  ed.  468,  6  Sup.  Ct.  Rep.  148. 

He  could  not  lawfully  be  turned  over  by 
the  Chicago  police  officers  to,  or  be  lawfully 
taken  from  them  by,  the  United  States 
marshal.  He  should  have  been  set  at  lib- 
erty from  such  illegal  arrest  and  detention 
before  he  could  be  lawfully  arrested  on  the 
commissioner's  warrant. 

Ex  parte  Cohen,  8  Can.  Crim.  Cas.  312; 
Hooper  v.  Lane,  6  H.  L.  Gas.  443;  Mande- 
ville  V.  Guernsey,  61  Barb.  99. 

The  enactment  by  the  Parliament  of  the 
Dominion  of  Canada  of  a  statute  which 
gives  to  a  different  moral  offense,  which  is 
not  a  crime  in  Illinois,  or  in  the  United 
States,  or  at  common  law,  the  name  of  a 
crime  mentioned  in  an  extradition  treaty 
with  Great  Britain,  does  not  bring  such 
different  moral  offense  within  the  provisions 
of  the  tr^Ltj. 
30M 


Not  only  must  an  offense  be  named  in  ths 
treaty  as  extraditable,  it  must  also  be  con- 
sidered a  crime  in  both  the  demanding  and 
surrendering  country. 

Wright  V.  Henkel,  190  U.  S.  68,  47  L.  ed. 
061,  23  Sup.  Ct.  Rep.  781,  12  Am.  Crim. 
Rep.  386. 

If  extradited  for  "perjury/'  the  petitioner 
may  be  tried  and  condenmed  in  Canada 
without  proof,  or  in  the  face  of  disproof, 
of  that  which  constitutes  "perjury"  in  the 
United  States.  It  is  impossible  to  extra- 
dite for  "perjury"  from  the  United  States 
to  Canada  and  avoid  this  situation.  Ex- 
tradition from  the  United  States  to  Can- 
ada for  this  alleged  crime  is  therefore  not 
permissible. 

United  SUtes  v.  Rauscher,  119  U.  S.  407, 
30  L.  ed.  425,  7  Sup.  Ct  Rep.  234,  6  Am. 
Crim.  Rep.  222. 

The  tribunal  must  have  had  jurisdiction 
of  the  cause  in  which  the  oath  waa  admin- 
istered, and  Manitoba  assembly  conunittee 
lacked  that  jurisdiction. 

Pankey  v.  People,  2  IlL  80;  Maynard  v. 
People,  136  lU.  416,  26  N.  E.  740;  Hereford 
▼.  People,  197  111.  222,  64  N.  £.  310. 

The  complaints  and  the  competent  evi- 
dence before  the  commissioner  did  not  show 
probable  cause  that  appellant  was  guilty  of 
the  crime  of  obtaining  mon^  by  false  prs- 
tenses. 

Jackson  v.  People,  126  lU.  139,  18  N.  S. 
286 ;  Moore  v.  People,  190  111.  333,  60  N.  E. 
636. 

Messrs.  Almon  W.  Bnlkley  and  Henry 
B.  F.  Macfarland  argued  the  cause,  and, 
with  Mr.  Clair  E.  More,  filed  a  brief  for 
appellees: 

A  treaty  of  this  character  is  executory, 
and  the  duty  to  perform  is  imposed  upon 
the  executive,  not  the  judicial,  department. 

Terlinden  v.  Ames,  184  U.  S.  270,  46  L. 
ed.  534,  22  Sup.  Ct.  Rep.  484,  12  Am.  Crim. 
Rep.  424. 

Habeas  corpus  is  to  determine  whether  a 
prisoner  is  lawfully  detained. 

Nishimura  Ekiu  v.  United  States,  142 
U.  S.  651,  35  L.  ed.  1146,  12  Sap.  Ot  Rep. 
336. 

*  If  the  committing  magistrate  has  jurii- 
diction,  the  offense  charged  is  within  the 
treaty,  and  the  magistrate  has  before  him 
competent  legal  evidence,  his  decision  will 
not  be  reviewed  on  habeas  eorpus. 

Terlinden  ▼.  Ames,  184  U.  Q.  270,  46  L. 
ed.  634,  22  Sup.  Ct  )tep.  484,  12  Am.  Crim. 
Rep.  424;  Omelas  ▼.  Ruix,  161  U.  8.  M, 
608,  40  L.  ed.  787,  789,  16  Sup.  Ct.  Rep- 
689;  Bryant  t.  United  States,  167  U.  S. 
104,  42  L.  ed.  94,  17  Sup.  Ct.  Rep.  744; 
Yordi  T.  Nolte,  215  U.  6.  227,  64  L.  ed.  170. 
30  Sup.  Ct  R^.  90;  Niabimiini  Ekiu  v. 

141  V.  S. 


101& 


KELLT  T.  GRIFFIN. 


11,  12 


United  States,  142  U.  8.  651,  85  L.  ed.  1146, 
12  Sup.  Ct.  Rep.  336;  McNamara  y.  Henkel, 
226  U.  S.  520,  57  Ix  ed.  330,  33  Sup.  Ct. 
Rep.  146;  Bz  parte  Tarbrough,  110  U.  S. 
651,  28  Lb  ed.  274,  4  Sup.  Ci.  Rep.  152. 

A  preliminaiy  complaint  on  inlormatioin 
and  belief  is  not  unlawful. 

Tordi  T.  Nolte,  215  U.  8.  2^7,  64  U  ed. 
170,  30  Sup.  Ct.  Rep.  90. 

It  is  immaterial  how  the  commiaaioner 
obtains  jurisdiction  of  the  person. 

Wright  V.  Henkel,  190  U.  S.  40,  47  L.  ed. 
948,  23  Sup.  Ct.  Rep.  781,  12  Am.  Crim. 
Rep.  3S6 ;  Nishimura  Ekiu  t.  United  States, 
142  U.  S.  651,  35  L.  ed.  1146,  12  Sup.  Ot. 
Rep.  336;  lasigi  ▼.  Van  de  Carr,  166  U.  8. 
391,  41  L.  ed.  1045,  17  Sup.  Ct.  Rep.  595 ; 
Re  Macdonnell,  11  Blatchf.  170,  Fed.  Cas. 
No.  8,772;  Kelley  t.  Thomas,  81  Mass.  192; 
PeUibone  t.  Nichols,  203  U.  S.  192,  51  L. 
ed.  148,  27  Sup.  Ct.  Rep.  Ill,  7  Ann.  Cas. 
1047;  Mahon  y.  Justice,  127  U.  S.  712,  32 
L.  ed.  287,  8  Sup.  Ot.  Rep.  1204;  Ker  t. 
niinois,  119  U.  8.  437,  80  U  ed.  421,  7 
Sup.  Ct.  Rep.  225. 

It  is  not  material  what  the  Canadian  stat- 
ute of  perjury  is,  if  the  perjury  charged 
comes  within  the  terms  of  the  treaty  and 
United  States  law. 

Qrin  ▼.  Shine,  187  U.  8.  181,  47  L.  ed. 
130,  23  Sup.  Ct.  Rep.  98,  12  Am.  Crim.  Rep. 
366;  Re  Oteixa  y  Cortes,  136  U.  S.  330, 
34  L.  ed.  464,  10  Sup.  Ot.  Rep.  1031,  8  Am. 
Crim.  Rep.  241;  Bryant  t.  United  States, 
167  U.  8. 104,  42  L.  ed.  94,  17  Sup.  Ot.  Rep. 
744;  Benson  t.  McMahon,  127  U.  S.  457,  32 
L.  ed.  234,  8  Sup.  Ot.  Rep.  1240;  Omelas  t. 
Ruiz,  161  U.  S.  502-508,  40  L.  ed.  787-789, 
16  Sup.  Ct.  Rep.  689. 

The  Canadian  Code  !s  the  equivalent  of 
Illinois  and  United  States  statutes  regard- 
ing perjury. 

22  Am.  k  Eng.  Enc.  Law,  684;  2  Whart. 
Crim.  Law,  9th  ed.  f  1244;  United  SUtes  t. 
Landsberg,  23  Fed.  585,  4  Am.  Crim.  Rep. 
474;  Reg.  T.  Overton,  2  Moody  0.  0.  263, 
Car.  k  M.  655;  State  t.  Rosenberg,  88  Vt. 
223,  92  Atl.  145;  Dilcher  t.  SUt^  39  CMiio 
St.  134. 

The  regularity  of  appointment  or  proced- 
ure of  the  public  accounts  committee  of  the 
Manitoba  legislative  assembly  la  not  mate- 
rial in  this  proceeding. 

Maynard  v.  People,  135  111.  416,  25  N.  S. 
740;  Greene  t.  People  182  111.  278,  65  N.  E. 
341. 

The  alleged  defect  was  waived  by  Kelly's 
appearing  and  testifying  without  objection 
or  protest. 

Maynard  t.  People,  135  lU.  416,  25  N.  E. 
740. 

Whether  anyone  was  deceived,  or  relied 
on  all^fed  false  pretenses,  is  a  question  of 
fact  not  reviewable  here^ 
••  Ii.  ed. 


McNamara  t.  Henkel,  226  U.  6.  520,  57 
Ix  ed.  330,  33  Sup.  Ot  Rep.  146;  Thomas  v. 
People,  113  IlL  531,  5  Am.  Crim.  Rep.  127; 
K^es  T.  People,  197  IlL  641,  64  N.  E.  730; 
People  T.  Goodhart»  248  lU.  373,  94  N.  E. 
148. 

Embezslement,  larceny,  receiving  money 
knowing  it  to  have  been  embezzled,  stolen, 
or  fraudulently  obtained,  is  within  the 
treaty,  and  is  a  crime  in  both  countries. 

United  States  v.  Greene,  146  Fed.  766; 
Greene  v.  United  States,  85  0.  0.  A.  251,  154 
Fed.  401,  207  U.  8.  596,  52  L.  ed.  357,  28 
Sup.  Ct.  Rep.  261. 

Mr.  Justice  Holmes  delivered  the  opin- 
ion of  the  court: 

The  appellant  was  held  for  extradition  to 
Canada,  and  petitioned  for  and  obtained  a 
writ  of  habeas  corpus.  After  a  hearing  up- 
on the  returns  to  the  writ  and  to  a  writ  of 
certiorari  issued  to  the  commissioner  by 
whose  warrant  the  [12]  petitioner  was  de- 
tained, the  district  judge  discharged  the 
writ.  An  appeal  was  allowed  and  several 
objections  have  been  pressed  to  the  pro- 
ceeding, which  we  will  take  up  in  turn. 
The  matter  arises  out  of  frauds  in  the  con- 
struction of  the  new  Parliament  buildings 
at  Winnipeg,  in  which  Kelly,  the  contractor, 
and  a  number  of  public  men,  are  alleged 
to  have  been  involved. 

First  it  is  said  that  jurisdiction  of  the  ap- 
pellant's person  has  not  been  obtained  legib- 
ly. On  October  1,  1915,  he  was  arrested 
without  a  warrant,  on  a  telegram  from  Win- 
nipeg. The  next  day  a  complaint  was  made 
before  the  commissioner  by  the  British  Vice 
Consul  General  in  Chicago  upon  informa- 
tion and  belief,  a  warrant  was  issued,  and 
the  petitioner  was  turned  over  to  the  United 
States  marshal  by  the  Chicago  police.  On 
October  15  a  new  complaint  was  filed  by  the 
British  Consul  General,  a  new  warrant  was 
placed  in  the  hands  of  the  marshal,  and 
the  former  complaint  was  dismissed. 
Wright  V.  Henkel,  190  U.  8.  40,  42,  44,  63, 
47  L.  ed.  948,  949,  956,  23  Sup.  Ct.  Rep. 
781,  12  Am.  Crim.  Rep.  386.  llie  conten- 
tion is  that  the  original  arrest  was  illegal, 
and  that  the  appellant  was  entitled  to  be 
set  at  liberty  before  the  warrant  of  October 
2  or  that  of  October  15  could  be  executed 
with  effect. 

But,  however  illegal  the  arrest  by  the 
Chicago  police,  it  does  not  follow  that  the 
taking  of  the  appellant's  body  by  the  mar- 
shal under  the  warrant  of  October  2  was  void. 
The  action  of  the  officers  of  the  state  or  city 
did  not  affect  the  jurisdiction  of  the  com- 
missioner of  the  United  States.  Further- 
more, the  order  dismissing  the  complaint 
of  October  2  was  that  the  appellant  be  dis- 
diarged  forthwith  from  custody ;   so  tJbA^V 


12-15 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  IteM, 


on  the  face  of  the  reoord^  it  would  eeem 
thftt  before  being  held  under  the  present 
warrant  the  appellant  had  the  moment  of 
freedom  which  he  contends  was  his  right. 
It  is  urged  that  the  Canadian  authorities 
are  trying  to  take  advantage  of  their  own 
wrong.  But  the  appellant  came  within 
reach  of  the  commissioner's  warrant  l^  his 
own  choice,  and  the  most  that  can  be  said 
[13]  is  that  the  effective  exercise  of  author- 
itj  was  made  easier  by  what  had  been  done. 
It  was  not  even  argued  that  the  appellant 
was  entitled  to  a  chance  to  escape  before 
either  of  the  warrants  could  be  executed. 
This  proceeding  is  not  a  fox  hunt.  But 
merely  to  be  declared  free  in  a  room  with 
the  marshal  standing  at  the  door  having 
another  warrant  in  his  hand  would  be  an 
empty  form.  We  are  of  opinion  that,  in  the 
circumstances  of  this  case  as  we  have  stated 
them,  the  omission  of  a  formal  act  of  re- 
lease and  a  subsequent  arrest,  if  they  were 
omitted,  furnishes  no  ground  for  discharg- 
ing the  appellant  upon  habeas  corpus.  All 
the  intimations  and  decisions  of  this  court 
indicate  that  the  detention  of  the  appel- 
ant cannot  be  declared  void.  Pettibone  v. 
Nichols,  203  U.  S.  192,  51  L.  ed.  148,  27 
Sup.  Ct.  Rep.  Ill,  7  Ann.  Cas.  1047;  lasigi 
V.  Van  de  Carr,  166  U.  S.  391,  393,  394,  41 
Lb  ed.  1045,  17  Sup.  Ct.  Rep.  595;  Nishi- 
mura  Ekiu  v.  United  States,  142  U.  S.  651/ 
662,  35  L.  ed.  1146,  1150,  12  Sup.  Ct.  Rep. 
336.  If  we  were  satisfied  that  a  different 
rule  would  be  applied  by  the  final  author- 
ity in  Great  Britain,  other  questions  would 
arise.  Charlton  v.  Kelly,  229  U.  S.  447, 
57  L.  ed.  1274,  46  L.RA.(N.S.)  397,  83 
Sup.  Ct.  Rep.  945.  But  we  are  not  con- 
vinced by  anything  that  we  read  in  Hooper 
V.  Lane,  6  H.  L.  Cas.  443,  27  L.  J.  Q.  B. 
N.  S.  75,  3  Jur.  N.  S.  1026,  6  Week.  Rep. 
146,  that  a  different  rule  would  be  applied, 
and  we  think  it  unnecessary  to  discuss  the 
differences  in  detail. 

The  complaint  of  October  15  charges  per- 
jury, obtaining  money  by  false  pretenses, 
and,  conjointly,  stealing  or  embezzling  and 
unlawfully  receiving  money  and  other  prop- 
erty of  the  King  which  had  been  embezzled, 
stolen,  or  fraudulently  obtained  by  means 
of  a  conspiracy  as  set  forth.  The  perjury 
alleged  is  swearing  falsely  to  the  proportion 
of  cement  sand  and  broken  stone  put  into 
the  caissons  of  the  new  Parliament  buildings 
at  Winnipeg,  in  a  judicial  proceeding  be- 
fore the  public  accounts  committee  of  the 
legislative  assembly  of  the  province  of  Mani- 
toba, the  appellant  knowing  his  statements 
to  be  false.  It  is  objected  that  although 
perjury  is  mentioned  as  a  ground  for  extra- 
dition in  the  treaty,  the  appellant  should 
not  be  surrendered  because  the  Canadian 
Criminal  Cod^  (  170,  [14]  defines  perjury 
S64 


as  covering  false  evidence  in  a  jodieial  pro- 
ceeding, "whether  such  evidence  is  matttlal 
or  not."  As  to  this  it  is  enough  to  say  that 
the  assertions  charged  here  were  material 
in  a  high  degree,  and  that  the  treaty  is  not 
to  be  made  a  dead  letter  because  some  pos- 
sible false  statements  might  fall  within  the 
Canadian  law  that  perhaps  would  not  be 
perjury  by  the  law  of  Illinois.  ''It  is  enough 
if  the  particular  variety  was  criminal  in 
both  jurisdictions."  Wright  v.  Henkel,  190 
U.  S.  40,  60,  61,  47  L.  ed.  948,  955,  956,  23 
Sup.  Ct.  Rep.  781,  12  Am.  CrinL  Rep.  386. 
There  is  no  attempt  to  go  b^ond  the  prin- 
ciple common  to  both  places  in  the  present 
case.  It  is  objected  further  that  although 
the  above  committee  was  authorized  to  ex- 
amine witnesses  upon  oath,  it  was  only  io 
''such  matters  and  things  as  may  be  re- 
ferred to  them  by  the  House."  But  even 
if  there  were  not  some  evidence  and  a  find- 
ing (Ornelas  v.  Ruiz,  161  U.  S.  502,  509, 
40  L.  ed.  787,  789,  16  Sup.  Ct.  Rep.  689), 
the  nature  of  the  investigation,  the  purposes 
for  which  the  committee  was  appointed,  and 
the  fact  that  the  appellant  appeared  before 
it  without  objection,  would  warrant  a  pre- 
sumption of  regularity  in  a  summary  pro- 
ceeding like  this. 

The  plan  for  the  foundations  of  the  build* 
ings  was  changed  from  piling  called  for 
by  the  written  contract  to  caissons  filled 
with  concrete,  and  the  false  representations 
all^^d  concerning  the  amount  of  concrete, 
lumber,  iron  rings,  and  bolts  used  in 
the  extra  work.  They  consisted  in  bills 
or  "progress  estimates"  addressed  to 
the  provincial  government  for  "labor  and 
material  supplied,"  setting  forth  the  amount 
of  each  item  thus  stated  to  have  been  sup- 
plied. It  is  objected  that  the  amounts  die* 
manded  by  the  bills  were  paid  not  upon 
the  bills,  but  upon  vouchers  coming  from  the 
department  of  public  works,  and  that  the 
provincial  architect  who  certified  the  bills 
was  not  deceived.  The  person  who  made  out 
the  certificates  relied  upon  the  bills  in  good 
faith,  and  it  appears  that  without  the  bills 
the  payments  would  not  have  been  made. 
The  fact  that  there  were  other  steps  neces- 
sary in  addition  [16]  to  sending  in  a  false 
account,  or  that  other  conspirators  co-op- 
erated in  the  fraud,  does  not  affect  the  re- 
sult that,  on  the  evidence,  Kelly  obtained 
the  money  from  the  provincial  government 
l^  fraudulent  representations  to  which  he 
was  a  party,  and  that  his  false  statement 
was  the  foundation  upon  which  the  govern- 
ment was  deceived. 

The  last  charge,  stealing  or  embezzling 
and  receiving  money  fraudulently  obtained, 
needs  a  word  of  explanation.  It  may  be  as- 
sumed that  there  is  no  evidence  of  larceny 
or    embezzlement   as    (commonly)    defined, 

141  U.  8. 


1915. 


OSBORNE  V.  QRAT. 


16,  16 


but  the  receiving  of  property  known  to  have 
been  fraudulently  obtained  is  a  crime  by  the 
laws  of  both  Canada  and  Illinois.  There 
may  be  a  doubt  whether  the  appellant,  if 
a  party  to  the  fraud,  received  the  money  of 
the  government  directly  from  it,  or  through 
a  third  hand,  so  as  to  be  guilty  under  this 
count  of  the  complaint.  We  are  not  pre- 
pared  to  pronoimce  his  detention  upon  the 
count  unjustifiable,  in  view  of  the  finding. 
We  assume,  of  course,  that  the  government 
in  Canada  will  respect  the  convention  be- 
tween the  United  States  and  Great  Britain, 
and  will  not  try  the  appellant  upon  other 
charges  than  those  upon  which  the  extra- 
dition is  allowed.  Therefore  we  do  not 
think  it  necessary  to  require  a  modification 
of  the  complaint  before  the  order  discharg- 
ing the  writ  of  habeas  corpus  is  affirmed. 
Final  order  affirmed. 


city,  by  taking  judicial  notice  that  the 
fruit  cars  came  from  without  the  state,  not- 
withstanding the  nearness  of  Chattanooga 
and  its  suburb  to  the  Georgia  line. 
[For  other  caseB,  see  Bvidence,  L,  in  Digest 
Sup.  Ct.  1908.1 

[No.   873.] 

Argued  April  3,  1916.     Decided  April  17, 

1916. 


tie]  E.  C.  OSBORNE,  Receiver  of  the  Chat- 
tanooga Southern  Railroad  Company, 

V. 

JENNIE  B.  GRAY. 
(See  S.  C.  Reporter's  ed.  16-21.) 

lError  to  state  oouft  —  scope  of  review 
—  local  law. 

1.  The  question  whether  the  declara- 
tion in  an  action  against  a  railway  com- 
pany for  the  wrongful  killing  of  an  employee 
permitted  a  recovery  at  common  law  is  one 
of  local  law  in  the  absence  of  any  showing 
bringing  the  injury  within  the  Federal  em- 
ployers' liability  act  of  April  22,  1908  (35 
Stat,  at  L.  65,  chap.  149,  Comp.  Stat.  1913, 
I  8657),  and  is,  therefore,  not  open  for  re- 
view in  the  Federal  Supreme  Court  on  writ 
•of  error  to  a  state  court. 

[For  other  cases,  see  Appeal  and  Error,  2079- 
2226,  in  Digest  Sup.  Ct.  1908.] 

Evidence  —  Judicial  notice  to  supply 

record. 

2.  The  Federal  Supreme  Court  cannot 
supply  the  lack  of  any  evidence  in  the  record 
showing  the-  interstate  character  of  the  em- 
ployment of  a  railway  employee,  killed 
while  carrying  out  his  instructions  to  de- 
liver at  Chattanooga,  Tennessee,  three  car- 
loads of  peaches  cut  out  of  a  passenger 
train  from  the  south  at  a  suburb  of  that 

Note. — On  the  general  subject  of  writs 
of  error  from  United  States  Supreme  Court 
to  state  courts — see  notes  to  Martin  v. 
Hunter,  4  L.  ed.  U.  S.  97;  Hamblin  ▼. 
Western  Land  Co.  37  L.  ed.  U.  S.  267;  Re 
Buchanan,  39  L.  ed.  U.  S.  884;  and  Kip- 
ley  Y.  Illinois,  42  L.  ed.  U.  S.  998. 

On  what  questions  the  Federal  Supreme 
Court  will  consider  when  reviewing  the 
judgments  of  state  courts — see  note  to  Mis- 
souri ex  rel.  Hill  v.  Dockery,  63  LJIA.  571. 

On  judicial  notice,  generally — see  note  to 
Olive  V.  State,  4  LJl.A.  33. 
49  li.  ed. 


IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Tennessee  to  review  a  judg- 
ment which  affirmed  a  judgment  of  the 
Court  of  Civil  Appeals  of  that  state,  re- 
versing a  judgment  of  the  Circuit  Court  of 
Hamilton  County  in  favor  of  defendants, 
rendered  on  a  second  trial  of  an  action  for 
the  death  of  a  railway  employee,  and  rein- 
stating a  judgment  of  that  court  in  favor 
of  plaintiff,  rendered  at  the  first  trial. 
Affirmed. 

See  same  case  below  in  Court  of  Civil 
Appeals,  5  Tenn.  C.  C.  A.  519. 

The  facts  are  stated  in  the  opinion. 

Mr.  William  li.  Frierson  argued  the 
cause,  and,  with  Mr.  Lewis  M.  Coleman, 
filed  a  brief  for  plaintiff  in  error: 

The  writ  of  error  rests  upon  the  claim, 
asserted  by  us,  that  the  state  court,  in  de- 
ciding that  the  Federal  employers'  liability 
act  does  not  apply  to  a  given  state  of  facts 
shown  (1)  in  the  declaration  and  (2)  in 
the  proof,  has  failed  to  properly  apply  that 
act,  and  has  thus. deprived  plaintiff  in  error 
of  the  right  to  be  shielded  from  responsi- 
bility to  anyone  except  a  personal  repre- 
sentative of  deceased.  This  clearly  presents 
a  Federal  question. 

St.  Louis,  S.  F.  k  T.  R.  Ck).  t.  Seale,  229 
U.  S.  156,  57  L.  ed.  1129,  33  Sup.  Ct.  Rep. 
651,  Ann.  Cas.  1914C,  156;  St.  Louis,  I.  M. 
k  S.  R.  Co.  V.  McWhirter,  229  U.  S.  265,  57 
L.  ed.  1179,  33  Sup.  Ot.  Rep.  856;  Seaboard 
Air  Line  R.  Co.  v.  Padgett,  236  U.  S.  668, 
59  L.  ed.  777,  35  Sup.  Ct.  Rep.  481. 

The  question  involved  being  clearly  a  Fed- 
eral question,  the  motion  to  dismiss  cannot 
be  sustained  unless  the  right  asserted  is  so 
wanting  in  foundation  and  unsubstantial 
as  to  be  devoid  of  all  merit  and  frivolous. 

Seaboard  Air  Line  R.  Co.  t.  Padgett, 
supra. 

Where  it  appears  either  in  the  declara- 
ti6n  or  in  the  proof  that  the  accident  oc- 
curred in  interstate  commerce,  the  act  of 
Congress  controls,  and,  in  case  of  death,  a 
widow  cannot  recover  in  her  own  name. 

Wabash  R.  Co.  t.  Hayes,  234  U.  S.  86,  58 
L.  ed.  1226,  34  Sup.  Ct.  Rep.  729,  6  N.  C. 
C.  A.  224;  Toledo,  St.  L.  &  W.  R.  Co.  ▼. 
Slavin,  236  U.  S.  454,  59  L.  ed.  671,  35  Sap. 
Ct.  Rep.  306. 
56 


SUPBKMX  COUKT  OF  THS  UNITXD  STATES.              Oat.  ItoM, 

The  Ti«w  «zpreMcd  br  tlu  itBla  eonrt  ClMrk,  ISl  IlL  IBS,  3S  N.  X.  es8;  Pcvee  t. 

that  011I7  the  wcond  eount  wu  unended  \a  Luigflt,   101   Pa.   607,   47   Am.   Hep.   TST; 

not  condiuive  on  thk  eonrt.  Blumenthal  r.  Pacific  Meat  Go.  12  Waih. 

Newport  Lig^t  Co.  *.  Newport,  161  U.  S.  Saz,  41  Pac.  47;  Beigbert  t.  StUea.  39  WU. 

687,  3B  L.  ed.  262,  14  Sup.  Ct  Bap.  429;  G33;    ChamberUjiie,    £*.    Til;    Hobbe    *. 

Covington  ft  L.  Tump.  Road  Co.  v.  Sandford,  HemphU  4  C.  R.  Oo.  B  Heiak.  ST4 ;  SUte  *. 

164  U.  8.  e»G,  41  L.  ed.  666.  IT  Sup.  Ct  MlMouri  P.  H.  Co.  212  Ho.  677,  111  S.  W. 

Sep.  198;  MitcheU  t.  Clark,  110  U.  B.  633,  600;  Oolf,  C.  *  6.  7.  R.  Co.  t.  BUte,  72 

eS  L.  ed.  27a,  4  Sup.  Ct.  Rep.  ITO,  312;  Tex.  404,  1  L.Rjl.  849,  2  Intera.  Com.  Rep. 

Bo;d  V.  Nebraoka,  143  U.  S.  13G,  36  L.  ad.  336,  13  Am.  St.  Rep.  816,  10  &  W.  81;  16 

103,  12  Sup.  Ct.  Rep.  376;  VaudalLa  R.  Co.  Cfc  861;  liUltt  t.  Texaa  A  N.  O.  R.  Co.  81 

T.  Indiana,  207  U.  S.  367,  62  L.  ed.  24B,  28  Tex.  SIS,  18  B.  W.  B64:  Bmitha  w.  noumoy. 

Sup.  Ct.  Rep.  130.  47  Ala.  34S. 

TTie  trial  eonrt  wae  bound  to  know  judi-  j|,  3,  j..  TKtom  arned  the  eauae,  and, 

clally,  and  this  court  wiU  know,  that  the  ^m,  jj^,,.  p,  h.  Thach,  Felix  D.  Lyneli, 

Chattanooga     Southern     Railroad     extends  o^r„  w.  Chamlee,  and  Joe  V.  WUliami, 

from  Chattanooga  to  the  Georgia  aUte  line,  ji^j  ^  ^jj^  ,„,  defendant  inirror: 

and  then  through  the  atate  of  Georgia  and  xhere  U  no  Federal  queation  involvMl  In 

to  Gadsden  in  Alabama;  that  Chattanooga  this  record.    The  polnta  involved  are  qnea- 

ia  only  about  4  or  6  mile*  from  the  G«>rgia  tloni  of   (1)  (act  pasaed  upon  adversely  to 

sUte  hue.  and  its  suburb  of  Alton  Park,  the  pUintifT  in  error  by  the  three  courta  of 

immediately  south  of  it,  is  almost  on  the  Tennwiee.  which  is  conclusive  here   (Dower 

sUte  lino.  ^   Richards,  161  U.  S,  6B8,  38  L.  ed.  305,  14 

Peyroux  v.  Howard.  7  Pet.  324,  8  L.  ed.  gnp.  Ct.  Rep.  458,  17  Mor.  Min.  Rep.  704; 

TOO;  United  SUtes  v.  Ia  Vengeance,  8  Dall.  Miediaich  v.  I«uenitein,  232  U.  S.  236,  6a 

»7.  1  L.  ed.  610;    United  SUtea  v.  Uw.  l.  ^_  ^^^  j^  g^.    Ot.  Rep.  300,  and    (B) 

tOO,BHow.26,18L.ed.34;  WatUv.  Lind-  the    interpretation    o(    pleadings    and    the 

w«y,  T  Wheat.  162,  6  L.  ed.  424;  McNitt  v.  effect   of   amendment,   of   pleading.,    which 

Turner,  1«  Wall.  362,  21  L.  ed.  341;  Penn.  „,  ,,„  binding  upon  thi.  court, 

•ylvanla  v.   Wheeling  t   B.   Bridge  On.   13  Central  Vermont  R.  Co.  v.  White,  238  U. 

How.  661,  14  L.  ed.  287;   United  States  v.  3,  607.  69  L.  ed.  1433,  86  Bup.  CL  Rep.  866. 

rhomton.   160   U.   S.   068,   669,  40   I^   ad.  g  ]«  c  C  A  265 

672,  16  Snp.  Ct.  Rep.  410;  WaUrs-Pierce  xhe  'petition  lot  a  writ  of  error,  and 
Oil  Co.  v.  Deselms.  212  U.  8.  169,  E3  I.  ed.  ^aignment  of  errors  aeoompanying  tha 
463,  28  Sup.  Ct.  Rep.  270;  Schollenberger  v.  ,^,,  should  be  di.mi»ed  for  the  rea«.n 
Pennsylvania,  171  U.  S.  9,  10,  43  L  ed.  thst  neither  of  them  shows  that  any  title, 
88,  63.  18  Sup.  a.  Hep.  767;  New  Mexico  ,.igiit_  privilege,  or  immunity  now  claimed 
ex  Ml.  McLean  v.  Denver  t  B.  G,  R.  Co.  by  the  plaintiff  In  error  was  eu>eeially  Ht 
203  U.  S.  38.  81  U  ed.  78.  27  Sup.  Ct.  Rep,  ^  „  ^faimed  in  any  of  the  eovJrt-  of  Tan- 
1;  Mcol  V.  Ames,  173  U.  8.  616,  617,  43  ^^^^  „d  hence  thU  court  ha.  no  jnria- 
I*  ad.  792,  19  Sup.  Ct.  Rep.  522;  Gibson  v.  dietion  of  the  cause  (Seaboard  Air  U-e  R. 
Stevens,  8  How.  399.  12  L.  ed.  1129;  Brown  (jo.  v.  Duvall,  226  U.  8.  477.  66  L.  ed.  1171, 
V.  Spillman,  166  U.  8.  666,  39  L.  ed.  304,  IB  33  g^p.  ct.  Rep.  790)  j  and  the  aasignment 
8np.  Ct.  Rep.  246;  United  State,  v.  Trans-  ^,  ,^„  nccompaoying  the  petition  for  a. 
Hi.«>uri  Freight  Aaso.  166  U.  S.  200.  41  L.  ^^t  of  error  should  be  disi^ased  for  th» 
ed.  1007,  17  Sup.  Ct.  Rep.  540;  Louisville  reason  that  «iid  assignment  of  error.  no- 
Trust  Co.  V.  Louisville.  N.  A.  A  C.  R.  Co.  „bere  all<^  that  in  any  of  the  decree,  in 
174  U.  8.  674,  43  L.  ed.  1130,  19  Sup.  Ct.  the  court,  of  Tennessee  the  pUlntifT  In  error 
Rep.  827 ;  Black  Diamond  Coal  Min.  Co.  v.  ^„  ^^nied  any  title,  right,  prlvUege,  or  Im- 
Excelsior  Coal  Co.  166  U.  S.  611,  39  L.  ed.  „„„ity  rf^j^^  under  the  PedenTl  Con.ti- 
563.  16  Bup.  Ct.  Rep.  482;  Bligh  v.  Kirk-  tytion  or  any  Federal  sUtnte,  it  bring  th* 
wood,  287  U.  8.  62,  GD  h.  ad.  836.  36  Sup.  j^ty  of  the  pUintiff  In  error,  nndef  the- 
Ct  Rep.  601,  GreenL  Bv.  15U.  ed.  |  6;  p^j^^  fa,  Tennessee  and  In  this  oourt.  to- 
Tborson  t.  PeUrson,  9  Fed.  517;  Gilbert  ».  especially  assign  this  as  erKw  in  ordar  to- 
Holine  Water  Power  A  Mfg.  Co.  19  Iowa,  give  this  court  jurisdiction. 
818;  Coover  V.  Davenport,  1  Heisk.  36S,  2  Cleveland  &  P.  R.  Co.  V.  Clevdand,  236- 
Am.  Rep.  708;  St.  Lonis,  I.  M.  A  B.  R.  Co.  U.  8.  60.  60  L.  ed.  127,  36  Sup.  CL  Rep. 
▼.  Magness,  68  Ark.  289,  67  8.  W.  933;  21;  Seaboard  Air  Line  R.  Co.  v.  Padgett, 
Perry  v.  SUte,  113  Ga.  938,  39  B.  E.  316;  236  U.  B.  668.  69  L.  ed.  TTT,  86  Sup.  Ct, 
Harvey  v.  Territory,  11  Okla.  166,  66  Pac.  Rep.  481;  Seaboard  Air  Une  |L  Co.  t.  Db< 
88T|  HaiT^y  T.  WajM.  T2  Me.  430;  Baily  viU,  22B  U.  S.  4TT,  66  L.  ad.  IITI,  tt  Sap. 
Y.  Birkhofer,  123  Iowa,  OS,  98  N.  W.  694;  Ct.  R^.  790;  D.  B.  Lovenuw  Go.  v.  B^I^ 
Bond  V.  Perkins,  4  Hriak.  364]  Bnuoa  t.  128  Tenn.  318,  180  8.  W.  841,  Ann.  Caa. 
««•  %*l  V.  M, 


Ifil5. 


OSBORNE  ▼.  GRAY. 


ia-20 


19150,   187;    Michaels   t.   Post,   21   WaU. 
398,  22  L.  ed.  620. 

The  practice  of  claiming  dai^ages  based 
<m  oonunon-law  negligence  in  one  count,  and 
damages  based  on  a  violation  of  the  Federal 
employers'  liability  act  in  another  count,  is 
recognised  and  approved  by  this  court. 

Wabash  K.  Oa  v.  Hayes,  234  U.  8.  86,  58 
L.  ed.  1226,  84  Sup.  Ct.  Rep.  729,  6  N.  C. 
O.  A.  224. 

A  writ  of  error  will  not  lie  where  a  state 
decision  is  sustainable  on  non-Federal 
grounds;  hence,  where  the  record  shows  a 
Federal  and  a  non-Federal  question,  and 
the  case  was  disposed  of  below  on  the  lat^ 
Uar,  this  court  will  not  take  jurisdiction. 

Allen  T.  Arguimbau,  198  U.  S.  149,  49 
L.  ed.  990,  25  Sup.  Ot.  Rep.  622;  Leonard  v. 
Vicksburg,  S.  k  P.  R.  Oo.  198  U.  S.  416,  49 
L.  ed.  1108,  25  Sup.  Ct.  Rep.  750;  Giles 
T.  Teasley,  193  U.  S.  146,  48  L.  ed.  655,  24 
Sup.  Ct.  Rep.  359 ;  Hale  v.  Lewis,  181  U.  S. 
474,  45  L.  ed.  960,  21  Sup.  Ct.  Rep.  677. 

In  Tennessee,  where  there  are  two  or 
more  counts  in  a  declaration  on  the  same 
cause  of  action,  a  general  verdict  in  favor 
of  the  plaintiff  will  be  sustained  if  there 
is  evidence  to  sustain  the  allegations  of  any 
count. 

Shepherd  v.  Staten,  5  Heisk.  82. 

There  is  no  question  of  law  involved  in 
the  case,  and  the  case  having  been  brought 
here  manifestly  for  delay,  the  judgment  of 
the  supreme  court  of  Tennessee  should  be 
affirmed,  with  10  per  cent  as  damages  added. 

Texas  k  P.  R.  Co.  v.  Prater,  229  U.  S. 
177,  57  L.  ed.  1139,  33  Sup.  Ct.  Rep.  637. 

Distances,  locations,  and  matters  of  a 
similar  nature,  may  be  judicially  known  to 
the  court,  but  they  are  not  judicially  known 
in  order  to  give  the  court  jurisdiction. 

Arkansas  v.  Kansas  k  T.  Coal  Co.  183 
U.  S.  185,  46  L.  ed.  144,  22  Sup.  Ct.  Rep. 
47 ;  Thayer,  Ev.  chap.  VII,  p.  281. 

Until  the  contrary  is  alleged  or  shown, 
it  will  be  presumed,  in  an  action  for  in- 
juries to  a  railroad  employee  through  the 
negligence  of  his  employer  in  the  use  or 
operation  of  its  railway  within  the  state, 
that  he  was  engaged  in  intrastate  ccmi- 
merce,  and  that  he  is  seeking  a  remedy 
under  the  laws  of  the  state. 

Erie  R.  Co.  v.  Welsh,  89  Ohio  St.  81,  105 
N.  £.  189;  Bradbury  v.  C»iicago,  R.  I.  &  P. 
R.  Co.  149  Iowa,  63,  40  L.RJL(K.S.)  684, 
128  N.  W.  1;  Chicago,  R.  L  k  P.  R.  Co.  v. 
HcBee^  —  Okla.  — ,  145  Pac.  331. 

Mr.  Justice  Hughes  delivered  the  opinion 
of  the  court: 

This  suit  was  brought,  in  the  year  1908, 
by  Jennie  B.  Gray  to  recover  damages  for 
the  death  of  her  husband,  who  was  employed 
in  the  operation  of  the  railroad  of  which 
••  li.  ed. 


the  plaintiff  in  error  and  another  were  re- 
ceivers. The  original  declaration  souf^t  re- 
covery for  negligence,  at  common  law,  and 
did  not  allege  that  the  deceased  was  injured 
while  engaged  in  interstate  commerce.  The 
plaintiff  was  permitted  to  file  an  addition- 
al count,  and  this  was  subsequently  amend- 
ed so  as  to  allege  the  interstate  character 
of  the  employment  of  the  deceased  at  the 
time  of  his  injury.  The  action  was  first 
tried  in  November,  1912;  the  jury  rendered 
a  verdict  in  favor  of  the  plaintiff  of  $10,- 
000  and  judgment  was  entered  accordingly. 
Thereupon,  the  trial  judge  granted  a  new 
trial  upon  the  ground  that  he  had  erred 
in  his  instructions  [19]  to  the  jury  with 
respect  to  the  burden  of  proof.  At  the  sec- 
ond trial,  ir  1913,  a  verdict  was  directed 
for  the  defendants  (the  plaintiffs  in  error) 
and  judgment  in  their  favor  was  entered. 
The 'court  of  civil  appeals  reversed  this 
judgment  and  reinstated  the  judgment  en- 
tered upon  the  verdict  at  the  first  trial. 
The  court  of  civil  appeals  did  not  consider 
the  record  of  the  second  trial,  but  was  of 
the  opinion  that  the  verdict  first  rendered 
in  favor  of  the  plaintiff  should  not  have 
been  set  aside.  This  decision  was  affirmed 
by  the  supreme  court  of  the  state,  without 
opinion. 

The  plaintiff  in  error  presents  for  our  con- 
sideration these  assignments  of  error :  ( 1 ) 
That  the  court  erred  in  not  holding  that 
both  counts  of  the  declaration  stated  a  case 
controlled  by  the  Federal  employers'  liabil- 
ity act,  and  that,  therefore,  the  widow  could 
not  recover  in  a  suit  begun  in  her  own 
name;  and  (2)  that  the  court  erred  in  not 
holding  that  the  evidence  on  the  first  trial 
made  a  case  within  the  Federal  act. 

In  support  of  the  first  assignment,  it  i» 
insisted  that  the  amendment  inserting  the 
allegation  that  the  injury  was  sustained 
while  the  decedent  was  engaged  in  inter- 
state commerce  amended  both  counts  of  the 
declaration.  The  state  court  treated  it  ae 
sn  amendment  of  the  second  count,  and  thus 
the  declaration  on  which  the  case  was  tried 
was  deemed  to  contain  two  counts,  "one 
under  the  common  law  of  Tennessee  and  the 
other  charging  negligence  under  tlie  em- 
ployers' liability  act."  From  a  Federal 
standpoint,  the  question  is  not  important, 
for  if  it  had  been  shown  that  the  injury 
had  been  received  in  interstate  commerce^ 
the  defendants  would  have  been  entitled 
to  insist  upon  the  applicable  Federal  law 
as  the  exclusive  measure  of  their  liability,, 
and  they  would  not  have  lost  this  rif^i 
merely  because  the  plaintiff  had  seen  fit  to- 
present  the  claim  ''in  an  alternative  way,** 
by  means  of  separate  counts.  Wabash  R. 
Co.  V.  Hayes,  234  [20]  U.  S.  86,  90,  58  L. 
ed.  1226»  1230,  84  Sup.  Ct.  R^.  729,  6  N. 

8^7 


90-22 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Temm, 


C.  C.  A.  224.  And  in  the  ftbflenoe  of  a 
showing  bringing  the  injury  within  the 
Federal  act,  the  question  whether  the 
declaration  permitted  a  recoyery  at  com- 
mon law  was  a  state  question. 

It  was  distinctly  stated  by  the  court  of 
ciyil  appeals  that  if  the  proof  showed  "that 
the  deceased  was  engaged  in  interstate  com- 
merce when  he  was  injured/'  the  court 
would  "be  compelled  to  hold  that  the  trial 
judge  was  not  in  error  in  setting  aside  the 
▼erdict."  But  it  was  found  that  there  was 
no  basis  in  the  evidence  for  such  a  conclu- 
sion, and  the  second  assignment  of  error 
challenges  this  ruling.  The  court  of  civil 
appeals  thus  stated  the  facts: 

"The  proof  indicates  that  the  deceased 
came  into  Alton  Park  on  a  passenger  train, 
and,  as  a  part  of  this  train,  there  were 
three  cars  loaded  with  peaches.  These  .cars 
were  taken  out  of  the  passenger  train  at 
Alton  Park,  when  the  train  went  on  to  the 
Chattanooga  depot.  After  these  fruit  cars 
were  taken  out  of  the  passenger  train,  the 
deceased  was  directed  by  one  of  his  superiors 
to  have  them  re-iced  and  then  taken  to 
Cravens  and  delivered  to  the  N.,  C.  k  St. 
L.  Railroad  Company.  The  proof  does  not 
show  that  the  pkssenger  train  on  which  the 
deceased  came  into  Alton  Park,  and  a  part 
of  which  the  fruit  cars  were,  came  from 
another  state,  and  in  fact  fails  to  show 
where  it  came  from.  The  proof  likewise 
fails  to  show  how  far  through  or  into  what 
part  of  Tennessee  the  railroad  of  defendant 
company  is  located,  and  to  what  point  it 
operates   trains.  The   fruit  cars 

which  he  was  ordered  to  take  and  deliver  to 
the  Nashville  road,  so  far  as  his  record  dis- 
closes, were  taken  out  of  a  passenger  train 
in  Alton  Park.  The  proof  does  not  indicate 
where  they  came  from,  whether  from  an- 
other state,  or  whether  they  were  picked  up 
in  Tennessee.  .  .  .  We  do  not  know 
where  the  passenger  train  came  from,  nor 
where  these  fruit  cars  come  from;  all  we 
do  know  is,  they  were  [21]  cut  out  of  the 
passenger  train  at  Alton  Park,  and  the  de- 
ceased was  ordered  to  take  them  down  into 
Chattanooga  and  deliver  them  to  the  N., 
C.  k  St.  L.  Railroad  Company.  That  being 
true,  the  deceased  and  these  cars  were  en- 
gaged in  intrastate  commerce  when  he  re- 
ceived his  fatal  injury,  and  not  in  inter- 
state commerce."     [6  Tenn.  C.  C.  A.    524.] 

The  evidence  has  not  been  printed,  but  by 
stipulation  between  the  parties  it  is  agreed 
that  the  testimony  also  showed  that  the 
passenger  train  in  question  had  left  Chat- 
tanooga at  7  o'clock  in  the  morning  of  the 
day  of  the  accident,  and  that  it  had  come 
Into  Alton  Park  from  the  south,  en  its  re- 
turn trip,  late  in  the  afternoon.  But  this 
still  leaves  undisclosed  the  origin  and  des- 

ses 


tination  of  the  cars  in  the  movement  of 
which  the  decedent  was  employed. 

It  is  apparent  that  there  was  no  evidence 
requiring  the  conclusion  that  the  deceased 
was  engaged  in  interstate  commerce  at  the 
time  of  his  injury,  and  we  are  asked  to 
supply  the  deficiency  by  taking  judicial 
notice  that  the  cars  oame  from  without  the 
state.  This  contention  we  are  unable  to 
sustain.  The  make-up  of  trains  and  the 
movement  of  cars  are  not  matters  which 
we  may  assume  to  know  without  evidence. 
The  state  court,  with  its  intimate  knowledge 
of  the  local  situation,  thought  that  such  an 
assumption  on  its  part  would  be  wholly 
unwarranted  and  we  cannot  say  that  it 
erred  in  this  view.  The  fact  that  Chattan- 
ooga and  its  suburb,  Alton  Park,  were  near 
the  state  line,  did  not  establish  that  the 
cars  had  crossed  it.  The  defendants  knew 
the  actual  movement  of  the  cars,  and,  fail- 
ing to  inform  the  court  upon  this  point, 
cannot  complain  that  they  have  been  de- 
prived of  a  Federal  right. 

Judgment  affirmed. 


[22]  6.  k  C.  MERRIAM  COMPANY,  Appt., 

V. 

ARTHUR  J.  SAALFIELD,  Saalfield  Pub- 
lishing  Company,  and  George  W.  Ogilvie. 

(See  S.  C.  Reporter's  ed.  22-33.) 

Appeal  —  from  district  coort  —  Juris- 
diction below. 

1.  The  jurisdiction  of  a  Federal  district 
court  as  a  Federal  court  is  so  involved  as 
to  sustain  a  direct  appeal  to  the  Federal 
Supreme  Court,  under  the  Judicial  Code, 
§  238,  in  orders  quashing  service  of  process 
against  a  nonresident  by  substituted  service 
upon  persons  said  to  represent  him  within 
the  district,  and  setting  aside  all  proceed- 
ings based  thereon. 

[For  other  cases,  see  Appeal  and  Brror,  008- 
911,  in  Digest  Sup.  Ct.  1908.] 

Note. — On  direct  review  in  Federal  Su- 
preme Court  of  judgments  of  district  or  cir- 
cuit courts — see  notes  to  Gwin  v.  United 
States,  46  L.  ed.  U.  S.  741,  and  B.  Altman 
k  Co.  V.  United  SUtes,  56  L.  ed.  U.  S. 
894. 

On  the  conclusiveness  of  a  Judgment  as 
between  plaintiff  and  one  not  a  party  nor 
privy,  who  voluntarily  conducted  the  de* 
fense— see  note  to  Ludy  t.  Larsen,  37 
L.RA.(N.S.)  957. 

As  to  validity  of  personal  judgments 
rendered  upon  constructive  service  of  pro- 
cess— see  note  to  Moyer  v.  Bucks,  16  L.RA. 
231. 

As  to  what  service  of  process  is  sufficient, 
generally,  to  constitute  due  process  of  law 
— see  note  to  Pinney  v.  Prondence  Loan  k 
Invest.  Co.  50  LILA.  677. 

141  V.  8. 


1916. 


G.  &  C.  MERRIAM  CO.  ▼.  SAALFIELD. 


Judgment  —  res  Judicata  —  partlefl  — 
partldpatton  in  defense  —  final  de- 


2.  A  decree  may  not  be  rea  judicata  as 
against  a  third  party  participating  in  the 
defense  unless  it  is  so  far  final  as  to  be 
ret  judicata  against  the  defendant  himself. 
[For  other   cases,   tee   Judgment,   775-780,   in 

Digest   Sap.   Ct   1008.] 

Jadgment  —  neceesltj  of  serYice  of 
process  —  nonresident  —  ancillary 
proceeding. 

3.  A  supplemental  bill  interposed  for 
the  purpose  of  obtaining  a  decree  in  per- 
sonam against  a  nonresident  upon  the 
groiwd  that  by  his  participation  in  the  de- 
fense of  the  original  action  he  had  made 
himself  an  actual,  though  not  a  nominal, 
party,  and  was,  therefore,  imder.the  doc- 
trine of  res  judicata,  bound  by  the  decree 
therein,  is  an  original  proceeding  as  against 
him,  not  a  dependent  and  ancillary  one, 
and  jurisdiction  thereof  cannot  be  exerted 
upon  mere  notice  to  him  without  service 
of  original  process  within  the  district. 
(For    other    cases,    see    Judgment,    III.    c,    1 ; 

Courts,  V.  c  9,  in  Digest  Sup.  Ct.  1008.J 

[No.  178.] 

Argued  January  14  and  17,  1916.    Decided 

AprU  17,  1916. 

APPBAL  from  the  District  Court  of  the 
United  SUtes  for  the  Northern  Dis- 
trict of  Ohio  to  review  orders  quashing  the 
service  of  process  against  a  nonresident  by 
substituted  service,  and  setting  aside  all 
proceedings  based  thereon.  Affirmed. 
The  facts  are  stated  in  the  (pinion. 

Mr.  'William  B.  Hale  argued  the  cause, 
and,  with  Mr.  James  A.  Ford,  filed  a  brief 
for  appellant: 

Ogilvie  was  privy  to  the  original  suit, 
and  was  an  actual,  although  not  an  ostensi- 
ble, party  thereto,  in  such  a  real  sense 
that  the  decree  will  be  res  judioa4a  against 
him. 

Stryker  v.  Goodnow  (Stryker  v.  Crane) 
123  U.  S.  527,  31  L.  ed.  104,  8  Sup.  Ct. 
Rep.  203;  Litchfield  v.  Goodnow  (Litch- 
field V.  Crane)  123  U.  8.  649,  551,  31  L. 
ed.  190,  201,  8  Sup.  Ct.  Rep.  210;  G.  k  C. 
Merriam  Co.  v.  Saalfield,  111  C.  C.  A.  617, 
190  Fed.  932,  117  C.  C.  A.  245,  198  Fed. 
371;  Lovejoy  v.  Murray,  3  Wall.  1,  18, 
18  L.  ed/  1^9,  134;  Robbins  v.  Chicago,  4 
Wall.  657,  672,  18  L.  ed.  427,  430;  Rum- 
ford  Chemical  Works  v.  Hygienic  Chemical 
Co.  215  U.  S.  156,  54  L.  ed.  137,  30  Sup. 
Ct.  Rep.  45;  Bigelow  v.  Old  Dominion  Cop- 
per Min.  &  Smelting  Co.  225  U.  S.  Ill, 
56  L.  ed.  1009,  82  Sup.  Ct.  Rep.  641,  Ann. 
Cas.  1913E,  875;  David  Bradley  Mfg.  Co. 
V.  Eagle  Mfg.  Co.  6  C.  C.  A.  661,  18  U.  S. 
App.  349,  57  Fed.  980;  Hauke  v.  Cooper, 
48  C.  C.  A.  144,  108  Fed.  922;  Empire 
•0  li.  ed. 


State  Nail  Co.  t.  American  Solid  Leather 
Button  Co.  71  Fed.  588;  Claflin  v.  Fleteher» 
7  Fed.  851;  Bank  of  Commerce  t.  Louis- 
ville, 88  Fed.  398;  Castle  v.  Noyes,  14  N. 
Y.  329;  Carey  v.  Roosevelt,  91  Fed.  567, 
83  Fed.  242;  Theller  v.  Hershey,  89  Fed. 
575;  Tootle  T.  Coleman,  57  LJLA.  120,  46 
C.  C.  A.  132,  107  Fed.  41. 

If  the  actual  defense  of  a  suit  by  one 
interested  therein,  but  not  named  as  a 
party,  becomes  known  to  the  plaintiff  at 
any  time  before  the  final  decree,  both  par- 
ties will  be  bound  by  it  as  res  judicata. 

Eagle  Mfg.  Co.  v.  Miller,  41  Fed.  357. 

The  district  court  for  the  northern  dis- 
trict of  Ohio,  eastern  division,  has  juris- 
diction* notwithstanding  Ogilvie  resides  in 
the  southern  district  of  New  York,  be- 
cause: (a)  He  submitted  to  the  jurisdic- 
tion, and  waived  objections,  by  voluntarily 
coming  in  and  defending  the  suit. 

Interior  Constr.  k  Improv.  Co.  v.  Gib- 
ney,  160  U.  S.  217,  40  L.  ed.  401,  16  Sup. 
Ct.  Rep.  272;  Re  Keasbey  k  M.  Co.  160  U. 
S.  221,  40  Ix  ed.  402,  16  Sup.  Ct  Rep. 
273. 

And  (b)  the  supplemental  bill  is  a  de- 
pendent and  ancUlary  proceeding. 

Milwaukee  4  M.  R.  Co.  t.  Milwaukee  k 
St.  P.  R.  Co.  (Milwaukee  &  M.  R.  Co.  ▼. 
Soutter)  2  Wall.  609,  633,  17  L.  ed.  886,. 
895;  Johnson  T.  Christian,  125  U.  S.  642» 
31  L.  ed.  820,  8  Sup.  Ct.  Rep.  989,  1135; 
Dewey  v.  West  Fidrmont  Gas  Coal  Co^ 
123  U.  S.  329,  31  L.  ed.  179,  8  Sup.  Ot. 
Rep.  148;  Brun  v.  Mann,  12  L.RJL(N.S.> 
154,  80  C.  C.  A.  513,  161  Fed.  145;  Camp- 
bell V.  Golden  Cycle  Min.  Co.  73  C.  C.  A. 
260,  141  Fed.  610;  Loy  v.  Alston,  96  C. 
C.  A.  578,  172  Fed.  ^4;  2  Street,  Fed.  Eq. 
Pr.  §9  1228,  1238;  O'Connor  v.  O'Connor, 
146  Fed.  994;  G.  k  C.  Merriam  Co.  v.  Saal- 
field, 111  C.  C.  A.  517,  100  Fed.  932;  West- 
em  Teleph.  Mfg.  Co.  v.  American  Electric 
Co.  141  Fed.  998. 

Substituted  service,  or  mere  actual  no- 
tice, is  sufficient  to  subject  a  party  to  the 
jurisdiction  of  the  court  in  any  ancillary 
proceeding,  and  sufficient  service  was  had 
in  this  case. 

1  Street,  Fed.  Eq.  Pr.  pp.  382,  386,  388; 
Milwaukee  k  M.  R.  Co.  t.  Milwaukee  k  StL 
P.  R.  Co.  (Milwaukee  4  M.  R.  Co.  t.  Sout^ 
ter)  2  Wall.  633,  634,  17  L.  ed.  895;  Dunn 
V.  Clarke,  8  Pet.  1,  3,  8  L.  ed.  845,  846; 
Gregory  v.  Pike,  26  C.  C.  A.  48,  60  U.  8. 
App.  4,  70  Fed.  521;  Gasquet  t.  Fidelity 
Trust  k  S.  V.  Co.  6  0.  C.  A.  253,  13  U.  CL 
App.  564,  57  Fed.  84;  Abraham  t.  North 
German  F.  Ins.  Co.  3  LJLA.  188,  87  Fed. 
731;  Crellin  v.  Ely,  13  Fed.  420;  Cortes  Co. 
V.  Thannhauser,  9  Fed.  226;  Maitland  t. 
Gibson,  70  Fed.  136;  Kelley  v.  T.  L.  Smitlft 
Co.  116  C.  C.  A.  240,  196  Fed.  466. 


2^26 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TkBMy 


QgUrie's  affidaTit  in  opposition  to  the 
notion  for  an  injunction  upon  the  supple- 
mental bill  argues  the  case  upon  the  merits, 
and  subjects  him  to  the  jurisdiction  of 
the  court. 

Ames  ▼.  Freeman,  83  Kan.  585,  112  Pac. 
160;  LiTingston  y.  Gibbons,  4  Johns.  Gh. 
IK;  Cooley  ▼.  Lawrence,  12  How.  Pr.  176; 
Duncan  t.  Wickliffe,  4  Met.  (Ky.)  118; 
Commercial  State  Bank  t.  Rowley,  2  Neb. 
(Unof.)   645,  89  N.  W.  766. 

Mr.  Wade  H.  Skills  argued  the  cause, 
and,  with  Mr.  Challen  B.  Ellis,  filed  a  brief 
for  appellees: 

Tbis  case  .was  not  appealable  to  this 
court  direct  from  the  district  court,  and 
this  appeal  should  be  dismissed. 

Bache  t.  Hunt,  103  U.  S.  523,  48  L.  ed. 
774,  24  Sup.  Ct.  Rep.  547;  Courtney  v. 
Pradt,  106  U.  S.  89,  40  L.  ed.  398,  25  Sl^>. 
Ct  Rep.  208. 

The  theory  that  the  estoppel  of  Ogilvie, 
if  any,  could  be  used  to  take  the  place  of 
his  being  made  a  party  of  record,  and  be 
the  basis  of  a  judgment  against  him  in 
the  case,  is  fallacious  and  unsupported  by 
any  authority. 

Bidwell  ▼.  Toledo  Consol.  Street  R.  Co. 
72  Fed.  10. 

The  facts  shown  would  not  constitute 
even  an  estoppel  against  Ogilvie  if  prop- 
erly sued  in  a  subsequent  case. 

Bank  of  Commerce  v.  Louisville,  88  Fed. 
308;  Lane  ▼.  Welds,  30  C.  C.  A.  528,  99 
Fed.  286;  Bigelow  ▼.  Old  Dominion  Copper 
Min.  k  Smelting  Co.  225  U.  S.  Ill,  56  L. 
ed.  1009,  32  Sup.  Ct.  Rep.  641,  Ann.  Cas. 
1913E,   875. 

Nothing  is  added  to  the  right  of  the 
complainant  by  the  so-called  substituted 
senrioe. 

Smith  V.  Woolfolk,  115  U.  S.  148,  29  L. 
ed.  359,  6  Sup.  Ct.  Rep.  1177. 

Mr.  Justice  Pitney  delivered  the  opinion 
of  the  court: 

This  is  a  direct  appeal  from  the  district 
court  under  §  238,  Judicial  Code  [36  Stat. 
at  L.  1157,  chap.  231,  Comp.  Stat.  1913, 
I  1215],  upon  the  sole  question  of  the 
jurisdiction  [24]  of  that  court  to  make 
and  enforce  a  final  decree  in  personam 
against  appellee  George  W.  Ogilvie.  The 
decree  was  foimded  upon  a  supplemental 
bill  making  Ogilvie  a  party  to  a  suit  al- 
ready pending,  and  upon  substituted  service 
of  process  on  persons  said  to  represent 
him  as  attorneys  in  the  state  of  Ohio,  be 
being  a  citizen  and  resident  of  the  state 
of  New  York,  and  not  having  been  per- 
■ooally  served. 

The  facts  are  as  follows:  In  December, 
1908,  appellant  filed  its  original  bill  against 


Saalfield  in  the  then  circuit  court  of  the 
United  States  for  the  northern  district  of 
Ohio,  for  relief  against  unfair  competition 
in  the  business  of  publishing  and  selling 
dictionaries.  Saalfield  was  duly  served  with 
process,  appeared,  and  made  defense.  The 
circuit  court  having  dismissed  Ihe  bill,  the 
circuit  court  of  appeals  reversed  the  decree 
(111  C.  C.  A.  517,  190  Fed.  927,  117  C.  C. 
A.  245,  198  Fed.  369),  and  remanded  the 
cause,  with  direction  for  an  injunction  and 
an  accounting  in  conformity  with  its  opin- 
ion. The  district  court  made  a  decree  in 
accordance  with  the  mandate  September  11, 
1912,  with  an  order  of  reference  for  the  ac- 
counting. Thereafter  and  on  December  16, 
1912,  the  supplemental  bill  was  filed,  setting 
up  in  substance  that  since  the  entry  of  the 
decree  of  September  1 1  complainant  had  dis- 
covered, and  it  charged  the  fact  to  be,  that 
Ogilvie  had  from  the  beginning  actively  con- 
ducted, controlled,  and  directed  the  de- 
fense of  the  suit,  having  selected,  retained* 
and  paid,  as  solicitors  and  counsel  for  de- 
fendant Saalfield,  the  firm  of  Weed,  Miller, 
k  Nason,  of  Cleveland,  Ohio,  and  Mr.  George 
F.  Bean,  of  Boston,  Massachusetts,  who,  in 
pursuance  of  said  retainer,  appeared  on  be- 
half of  Saalfield,  but  acted  for  and  under 
instructions  of  Ogilvie;  that  in  fact  Ogilvie 
was  the  proprietor  of  the  dictionaries  in- 
volved in  the  suit,  which  were  published  and 
sold  for  his  benefit  and  profit  by  Saalfield 
under  a  contract  providing  for  the  payment 
of  royalties  to  Ogilvie;  that  pending  the 
suit  Saalfield  had  [26]  transferred  and 
assigned  to  the  Saalfield  Publishing  Com- 
pany, a  corporation,  bis  business  of  pub- 
lishing and  selling  the  dictionaries;  that 
the  company,  as  successor  of  and  claiming 
through  and  under  Saalfield,  was  bound  by 
all  the  proceedings  in  the  suit,  and  that  it 
was  then  carrying  on  the  business,  under 
contract  with  Ogilvie;  and  that,  l^  reason 
of  the  facts  mentioned,  Ogilvie  haJ  made 
himself  privy  to  the  suit,  and  an  actual 
though  not  a  nominal  party  thereto,  and 
was  bound  by  the  proceedings  and  decree 
therein.  Appropriate  relief  was  prayed 
against  Saalfield,  the  Saalfield  Publishing 
Company,  and  Ogilvie. 

Upon  the  filing  of  the  supplemental  bill 
and  an  aflidavit  setting  forth  that  Ogilvie 
was  a  nonresident  of  the  northern  district 
of  Ohio,  and  that,  as  alleged  in  the  supple- 
mental bill,  tlie  firm  of  Weed,  Miller,  k 
Nason,  of  Cleveland,  and  Qeorge  F.  Bean, 
of  Boston,  Massachusetts,  who  had  ap- 
peared respectively  as  solicitors  and  coun- 
sel for  defendant  Saalfield  in  the  defense 
of  the  suit,  were  in  fact  retained  and  em- 
ployed by  Ogilvie  for  that  purpose,  and  paid 
by  him  and  acted  under  his  instructions 
and  directions,  complainant  moved  for  and 

141  V.  8. 


1916. 


0.  ft  a  MERRIAM  CO.  t.  8AALFISLD. 


20^2a 


obtained  an  ord«r  authofiiing  subttituted 
service  of  prooeas  againat  Ogilvie,  to  be 
made  within  the  diatriet  upon  the  Cleve- 
land attorneya,  and  in  the  diatriet  of  Maaaa- 
«hiiaetta  upon  George  F.  Bean.  Service  waa 
made  accordingly,  and  the  procesa  returned ; 
and  it  appearing  from  an  affidavit  made  by 
defendant  Ogilvie,  and  filed  in  the  cause  on 
February  22,  1013,  that  he  had  had  actual 
notice  of^  the  supplemental  bill,  an  inter- 
locutory decree  pro  oanfesao  was  entered, 
and  this  was  followed,  on  October  16,  1913, 
by  a  final  decree  for  the  recovery  against 
him  of  profits  amounting,  with  interest,  to 
481,312.78,  besides,  costs.  Thereafter  Ogil- 
vie, by  solicitors,  appearing  specially  for 
the  purpose,  moved  to  quash  the  service  of 
the  writ  of  subpoena  issued  against  him, 
and  to  set  aside  all  proceedings  based  there- 
on. The  district  court,  having  heard  testi- 
mony, granted  the  [26]  motion,  and  at  the 
aame  time  denied  a  petition  filed  by  com- 
plainant for  enforcement  of  the  final  de- 
cree against  Ogilvie;  and  from  final  orders 
entered  for  carrying  into  effect  this  de- 
cision, complainant  has  appealed  to  this 
•court. 

There  is  a  motion  to  dismiss,  based  upon 
the  familiar  ground  that  the  "jurisdiction 
of  the  court"  referred  to  in  S  238,  Judicial 
Code,  means  its  jurisdiction  aa  a  Federal 
court,  and  not  its  general  jurisdiction  as  a 
Judicial  tribunal;  the  insistence  being  that 
the  contention  of  complainant  below  pre- 
aented  no  more  than  a  general  question  of 
procedure  in  equity,  and  not  one  peculiar 
to  the  district  court  as  a  Federal  court. 
But  the  distinction  referred  to  bears  upon 
the  nature  of  the  jurisdiction  exercised  or 
refused  to  be  exercised  after  a  valid  service 
of  process  upon  the  defendant,  and  does  not 
affect  the  question  whether  the  court  has 
Acquired  jurisdiction  over  the  person,  which 
is  the  one  here  involved.  This  question  m&j 
be  reviewed  on  direct  iippeal.  Shepard  v. 
Adams,  168  U.  8.  618,  623,  42  L.  ed.  602, 
<t03,  18  Sup.  Ct.  Rep.  214;  Remington  v. 
Central  P.  R.  Co.  108  U.  S.  96,  90,  49  L. 
ed.  059,  963,  26  Sup.  Ct.  Rep.  677;  Board  of 
Trade  v.  Hammond  Elevator  Co.  198  U.  S. 
424,  434k  49  L.  ed.  1111,  1116,  26  Sup.  Ct 
Rep.  740;  Commercial  Mut.  Acci.  Co.  v. 
Davis,  213  U.  S.  246,  266,  63  L.  ed.  782,  787, 
29  Sup.  Ct.  Rep.  446;  Mechanical  Appliance 
Co.  V.  Castleman,  216  U.  S.  437,  440,  64  L. 
ed.  272,  276,  30  Sup.  Ct.  Rep.  125;  Hemdon- 
Carter  Co.  v.  James  K.  Norris,  Son  k  Co. 
224  U.  8.  406,  498,  66  L.  ed.  857,  868,  32 
Sup.  Ct.  Rep.  660.  In  Bache  t.  Hunt,  193 
U.  8.  623,  48  L.  ed.  774,  24  Sup.  Ct.  Rep. 
647,  the  decision  that  was  held  not  review- 
able on  direct  appeal  waa  rendered  upon  a 
plea  to  the  jurisdiction  of  the  court  over 
the  subject-matter.  In  Courtney  t.  Pradty 
«0  Ij.  ed. 


196  U.  S.  89,  49  L.  ed.  898,  26  Sup.  Ct  Rep. 
208,  the  suit  had  been  removed  from  a  Ken- 
tucky state  court  to  the  United  States  cir- 
cuit court,  where  Pradt  filed  a  special  de- 
murrer, aaaigning  aa  causes  that  the  court 
had  no  jurisdiction  of  the  person  or  of  the 
subject-matter.  The  court  dismissed  the 
suit  for  want  of  jurisdiction,  and  it  ap- 
peared from  its  opinion  that  tiiia  was  done 
because  Pradt»  who  waa  sued  as  executor, 
waa  appointed  as  such  in  Wisconsin,  and  a 
suit  against  a  Wisconsin  [27]  executor 
could  not  be  maintained  in  the  Koitucky 
state  court,  nor  in  the  Federal  court  The 
question  of  jurisdiction  waa  not  certified 
to  thia  court,  and  the  appeal  was  therefore 
dismissed.  These  cases  are  plainly  dis- 
tinguishable. The  present  motion  to  dis- 
miss must  be  denied. 

Appellant's  case  upon  the  merits  is  rested 
upon  the  theory  that  Ogilvie' was  privy  to 
the  original  suit  against  Saalfield,  and  an 
actual  though  not  an  ostensible  party  there- 
to, in  such  a  real  sense  that  the  final  de- 
cree therein  would  be  res  judicaia  against 
him;  that  the  district  court  had  jurisdiction 
to  entertain  the  suit  aa  against  him  not- 
withstanding he  resided  outside  the  dis- 
trict, because  by  volimtarily  coming  in  and 
defending  for.  Saalfield,  he  had  submitted  to 
the  jurisdiction  and  waived  the  objection, 
and  because  the  supplemental  bill  was  a 
dependent  and  ancillary  proceeding,  and 
therefore  properly  brought  in  the  district 
wherein  the  original  proceeding  was  pend- 
ing; and,  finally,  that  because  of  its  being 
an  ancillary  proceeding,  substituted  service 
upon  the  solicitors  representing  Ogilvie  in 
the  original  proceeding  was  sufficient  to  sub- 
ject him  to  the  jurisdiction  for  the  purposes 
of  the  supplemental  bill.  There  is  a  faint 
attempt  to  austain  the  jurisdiction  on  the 
theory  that  Ogilvie's  affidavit,  filed  Feb- 
ruary 22,  1913,  as  mentioned  in  the  inter- 
locutory decree  pro  ctmfesao,  amounted  to  a 
general  appearance,  because  it  was  sub- 
mitted in  opposition  to  a  motion  for  in- 
junction on  the  supplemental  bill,  and  be- 
cause it  "argued  the  case  upon  the  merits." 
This  may  be  overruled  at  once.  The  affi- 
davit shows  on  its  face  that  it  was  to  be 
used  only  as  evidence  for  defendants  Saal- 
field and  the  Publishing  Company,  and  was 
not  to  be  construed  aa  an  appearance  by 
Ogilvie. 

The  district  court,  while  raising  some 
question  whether  the  solicitors  and  coun- 
sel who  had  appeared  for  Saalfield  at  Ogil- 
vie'a  expense  had  not  concluded  their  serv- 
ices in  [28]  Ogilvie's  behalf  prior  to  the 
filing  of  the  supplemental  bill,  yet  rested  ita 
decision  substantially  upon  the  ground  that 
complainant  did  not  know  that  Ogilvie  had 
any  ccmnection  with  Saalfield  or  the'  Sr 


88-80 


8UPKXMB  COURT  OF  THS  UNITED  STATES. 


Oct.  TkBM, 


field  Publiflhing  Company  until  after  the 
making  of  tlie  decree  of  September  11,  1012, 
upon  tlie  going  down  of  the  mandate  from 
the  circuit  court  of  appeals;  and  that  for 
this  reason  Ogilvie  could  not  have  taken 
advantage  of  that  decree  liad  it  been  ad- 
verse to  complainant,  and  therefore  was  not 
estopped  by  it,  since  estoppels  must  be 
mutual. 

In  BO  holding,  the  court  applied  the  doc- 
trine that  has  been  laid  down  in  a  number 
of  cases,  that  a  third  party  does  not  be- 
oome  bound  by  a  decree  because  of  his  par- 
ticipation in  the  defense  unless  his  conduct 
in  that  regard  was  open  and  avowed  or 
otherwise  known  to  the  opposite  party,  so 
that  the  latter  would  have  been  concluded 
by  an  adverse  judgment.  See  Andrews  v. 
National  Foundry  &  Pipe  Works,  36  L.R.A. 
139,  22  C.  C.  A.  110,  46  U.  S.  App.  281,  76 
Fed.  166,  173;  Lane  v.  Welds,  39  0.  C.  A. 
628,  99  Fed.  286,  288.  We  need  not  con- 
sider the  soundness  of  the  doctrine,  for  ap- 
pellant does  not  question  it,  insisting  only 
that  it  is  not  applicable  here  because  Ogil- 
vie's  control  of  the  defense  made  in  Saal- 
fleld's  name  became  known  to  appellant  dur- 
ing the  progress  of  the  suit,  and  before 
final  decree;  it  being  contended  that  the 
decree  of  September  11,  1912,  was  inter- 
locutory, and  not  final. 

But  it' is  familiar  law  that  only  a  final 
judgment  is  res  judicata  as  between  the 
parties.  And  it  is  evident  that  a  decree 
cannot  be  rea  judicata  as  against  a  third 
party  participating  in  the  defense  unless 
it  is  so  far  final  as  to  be  ret  judicata 
against  the  defendant  himself.  Hence,  if 
the  decree  of  September  11  was  not  final 
as  between  appellant  and  Saalfield,  it  can- 
not be  res  judicata  as  against  Ogilvie;  and 
thus  the  fundamental  groimd  for  proceed- 
ing against  the  latter  by  supplemental  bill 
with  substituted  service  of  process  disap- 
pears. This  sufficiently  shows  the  weakness 
of  appellant's  position,  which,  upon  analy- 
sis, is  [20]  found  to  be  this:  that  upon  the 
theory  that  Ogilvie  would  be  estopped,  by  a 
final  decree  if  and  when  made,  it  sought  to 
bring  him  into  the  suit,  before  final  decree, 
as  if  he  were  already  estopped.  However 
convenient  this  might  be  to  a  complainant 
in  appellant's  position,  it  is  inconsistent 
with  elementary  principles. 

But,  assuming  for  argument's  sake  that 
the  decree  was  final,  and  that  Ogilvie  was 
fully  estopped  by  it  because  of  having  taken 
charge  and  exercised  control  of  Saalfield's 
defense  through  solicitors  and  counsel  re- 
tained and  paid  by  himself;  and  assuming 
that  their  employment  had  not  been  termi- 
nated at  the  time  the  supplemental  bill  was 
filed, — ^the  question  of  the  sufficiency  of  the 
proceediDgB  taken  bj  way  of  substituted 
S72 


service  to  bring  Ogilvie  within  the  juris* 
diction  of  the  court  still  remains,  and  this 
depends  upon  whether  the  supplemental  bill 
is   a   dependent  and  ancillary   proceeding, 
jurisdiction   of   which   follows  jurisdiction 
of  the  original  cause,  and  may  be  exerted 
upon  mere  notice  to  the  party,  without  serv- 
ice or  original  process  within  the  district. 
It  seems  to  be  thought  that  because  Ogil- 
vie   was    identified    in    interest  ;with    the 
defendant  in  the  original  suit,  and  had  and 
exercised   the  right   to  make  defense  and 
control  the  proceedings  and  appeal  from  the 
decree,  he  may  be  treated  for  all  purposes 
as  an  actual  party  to  the  record.    But  this 
by  no  means  follows.     The  doctrine  of  re* 
judicata  furnishes  a  rule  for  the  decision 
of  a  subsequent  case  between  the  same  par- 
ties or  their  privies  respecting  the  same 
cause  of  action.    Obviously,  the  rule  for  de* 
cision  applies  only  when  the  subsequent  ac- 
tion has  been  brought.     So  far  as  the  sup- 
plemental bill  seeks  to  bring  in  Ogilvie  as 
a  new  party  and  obtain  relief  against  him, 
it  is  not,  in  any  proper  sense,  dependent 
upon    or    ancillary    to    the    original    suit 
against  Saalfield.     It  is  not  analogous  to 
a  suit  for  an  injunction  against  the  prose- 
cution of  a  previous  suit  or  the  enforcement 
of  a  judgment  therein.    It  has  not  [30]  for 
its  object  some   further   dealing  with  the 
same  subject-matter.    Ogilvie  is  not  in  the 
position  of  one  who,  pending  a  suit  about 
property,  has  acquired  an  interest  in  the 
subject-matter.    The  object  of  the  original 
bill  was  to  obtain  an  injunction  and  recover 
profits  from  Saalfield;  that  of  the  supple- 
mental bill  is  to  obtain  an  injunction  and 
an    accoimting   of   profits   against   Ogilvie 
respecting  the  same  transactions.     But  the 
merits  are  not  to  be  adjudicated  against 
him  until  he  is  brought  into  court,  and  as 
against   him    the   supplemental  Mil   is  an 
original,  not  an  ancillary,  proceeding.     In 
Dunn  V.  Clarke,  8  Pet.  1,  8  L.  ed.  845,  one 
Graham  had  recovered  a  judgment  at  law 
in  an  action  of  ejectment  against  the  com- 
plainants, Clarke  and  others,  in  the  United 
States    circuit   court,    jurisdiction    depend- 
ing upon  diversity  of  citizenship.     Graham 
having  died,  the  defendant,  Dunn,  held  the 
land    recovered    in    trust    under    his   wiU. 
Clarke   and   others  filed  their  bill  in  the 
same    court,    praying    for    an    injunction 
against  the  judgment  and  for  a  decree  that 
the  land  in  controversy  be  reconveyed.    All 
the  complainants  and  defendants  were  resi- 
dents of  the  same  state  (Ohio).    This  court 
said:      ''No   doubt   is   entertained  by   the 
court  that  jurisdiction  of  the  case  may  be 
sustained,  so  far  as  to  stay  execution  on 
the  judgment  at  law  against  Dunn.    He  is 
the    representative    of    Graham;     and    al- 
though he  is  a  citisen  of  Ohio,  yet  •this  fact, 

941  U.  S. 


1916. 


G.  k  C.  MERRIAM  GO.  t.  SAALFIELD. 


S0-8d 


under  the  eircumBtances,  will  not  deprive 
this  court  of  an  equitable  control  OTer  the 
judgment.  But  beyond  this,  the  decree  of 
this  court  cannot  extend.  Of  the  action  at 
law,  the  circuit  court  had  jurisdiction;  and 
no  change  in  the  residence  or  condition  of 
the*  parties  can  take  awaj  a  jurisdiction 
which  has  once  attached.  If  Graham  had 
lived,  the  circuit  court  might  have  issued 
an  injunction  to  his  judgment  at  law,  with- 
out a  personal  service  of  process,  except 
on  his  counsel;  and  as  Dunn  is  his  repre- 
sentative, the  court  may  do  the  same  thing, 
as  against  him.  The  injunction  [31]  bill 
is  not  considered  an  original  bill  between 
the  same  parties,  as  at  law:  but,  if  other 
parties  are  made  in  the  bill,  and  different 
interests  involved,  it  must  be  considered,  to 
that  extent  at  least,  an  original  bill;  and 
the  jurisdiction  of  the  circuit  court  must 
depend  upon  the  citizenship  of  the  parties. 
In  the  present  case,  several  persons  are 
made  defendants  who  were  not  parties  or 
privies  to  the  suit  at  law,  and  no  jurisdic- 
tion as  to  them  can  be  exercised  by  this  or 
the  circuit  court."  So  far  as  it  shows  the 
distinction  between  an  original  bill  and  one 
that  is  not  to  be  so  considered,  the  case  is 
in  point  upon  the  present  question.  The 
reference  to  "privies"  must  be  taken  in  con- 
nection with  the  subject-matter,  which  in 
that  case  was  the  ownership  of  land. 

No  case  to  which  we  are  referred,  nor  any 
other  that  we  have  found,^  goes  to  the  ex- 
tent of  sustaining  as  an  ancillary  proceed- 
ing a  bill  interposed  for  the  purpose  of 
obtaining  a  decree  in  perBonam  against  a 
party  upon  the  ground  that  he  had  par- 
ticipated in  the  defense  of  a  previous  action 
against  another  party  so  as  to  become  bound 
upon  the  doctrine  of  ret  judicata,  Kelley  v. 
T.  L.  Smith  Co.  (0.  C.  A.  7th)  117  C.  C.  A. 
240,  106  Fed.  466,  is  referred  to.  In  that 
case  Kelley,  a  citizen  of  New  York,  and 
McConnell,  a  citizen  of  Illinois,  had  com- 
menced an  action  in  a  Wisconsin  state  court 
to  compel  the  secretary  of  the  Smith  [32] 
Company  to  transfer  certain  shares  of  stock 


standing  in  Kelley's  name  to  McConnell, 
as  his  assignee.  A  firm  of  Milwaukee  at- 
torneys brought  the  action,  and  an  attor- 
ney connected  with  that  firm  was  in  pos- 
session of  the  certificate  as  agent  of 
McConnell.  Thereupon  the  company  and  its 
secretary  filed  in  the  United  States  circuit 
court  a  bill  asserting  that  the  equitable 
title  to  the  shares  was  involved  in  a  suit 
already  pending  in  that  court,  to  which  the 
company  was  a  party  defendant;  that  thus 
different  parties,  in  different  courts,  were 
insisting  that  complainants  transfer  the 
same  shares  to  each,  and  if  complainants 
should  comply  with  the  demand  of  either 
they  would  be  unable  to  transfer  the  shares 
to  the  other  if  so  ordered  by  a  court  decree, 
and  that  they  had  no  interest  in  the  shares, 
and  were  willing  to  transfer  them  to  the 
party  found  to  be  the  owner.  On  the  show- 
ing that  Kelley  and  McConnell  were  not 
to  be  found  in  the  district,  and  that  the 
stock  oertificates  was  within  the  district, 
in  the  hands  of  their  attorneys  and  agent 
having  authority  to  assert  and  preserve 
their  rights,  the  court  ordered  the  subpoena 
and  the  notice  of  application  for  an  inter- 
locutory injunction  to  be  served,  and  they 
were  served,  upon  said  attorneys  and  agent. 
The  circuit  court  overruled  a  demurrer, 
and  the  court  of  appeals  sustained  this  de- 
cree, not,  however,  upon  the  ground  that 
the  suit  was  an  ancillary  proceeding  in  aid 
of  the  court's  jurisdiction  in  a  pending  suit, 
but  upon  the  ground  that,  as  an  independ- 
ent and  original  bill,  it  presented  a  subject 
cognizable  in  a  circuit  court  of  the  United 
States,  and  that  although  jurisdiction  in 
peraanam  could  not  be  acquired  by  service 
of  process  under  equity  rule  13,  because  of 
the  absence  of  the  defendants,  substituted 
service  was  permissible  under  the  then 
equity  rule  90,  by  analogy  to  the  English 
practice.  Without  intimating  any  view  as 
to  the  correctness  of  this  reasoning,  it  is 
sufficient  to  say  that  the  decision  has  no 
p^inency  to  tiie  question  here  presented. 
[33]  Upon  these  grounds,  we  are  of 
opinion  that  substituted  service  of  process 


1  See  Milwaukee  k  M.  R.  Co.  v.  Milwau« 
Itee  k  St.  P.  R.  Co.  2  WalL  600,  633,  17  L. 
ed.  886,  805;  Freeman  v.  Howe,  24  How. 
450,  460,  16  L.  ed.  740,  752;  Krippendorf 
V.  Hyde,  110  U.  S.  276,  285,  28  L.  ed.  146, 
148,  4  Sup.  Ct.  Rep.  27;  Clarke  v.  Mathew- 
son,  12  Pet.  164,  171,  0  L.  ed.  1041,  1043; 
Webb  V.  Bamwall,  116  U.  S.  103,  107,  20 
L.  ed.  606,  506,  6  Sup.  Ct.  Rep.  350;  Covell 
V.  Heyman,  111  U.  S.  176,  170,  28  L.  ed. 
300,  301,  4  Sup.  Ct.  Rep.  355;  Dewey  v. 
West  Fairmont  Gas  Coal  Co.  123  U.  S.  320, 
833,  31  L.  ed.  170,  181,  8  Sup.  Ct.  Rep. 
148;  Gumbsl  v.  Pitkin,  124  U.  8.  131,  144, 
SI  L.  ed.  374,  378,  8  Sup.  Ct.  Rep.  370; 
Morgan's  L.  ft  T.  R.  ft  S.  S.  Co.  v.  Texas 
C.  R.  Co.  137  U.  S.  171,  201,  34  Lw  ed.  626, 
60  li.  ed. 


635,  11  Sup.  Ct.  Rep.  61;  Byers  v.  McAuIey, 
140  U.  S.  608,  614,  ^7  L.  ed.  867,  871,  13 
Sup.  Ct.  Rep.  006;  Root  v.  Wool  worth,  150 
U.  S.  401,  413,  37  L.  ed.  1123,  1126,  14  Sup. 
Ct.  Rep.  136;  White  v.  Ewing,  150  U.  S. 
36,  30,  40  L.  ed.  67,  68,  16  Sup.  Ct  Rep. 
1018;  Carey  v.  Houston  ft  T.  C.  R.  Co.  161 
U.  S.  115,  130,  40  L.  ed.  638,  643,  16  Sup. 
Ct.  Rep.  537;  Wabash  R.  Co.  v.  Adelbert 
CoUege,  208  U.  8.  38,  54,  62  L.  ed.  370,  386, 
28  Siu>.  Ct.  Rep.  182;  Cortes  Co.  v.  Thann- 
hauser,  20  Blatdif.  50,  0  Fed.  226;  CreUin 
V.  Ely,  7  Sawy.  532,  13  Fed.  420;  Abraham 
V.  North  German  F.  Ins.  Co.  3  L.RJL  188, 
37  Fed.  731;  Gasquet  v.  FideUty  Trust  ft 
S.  V.  Co.  6  a  a  A.  253,  13  U.  B.  App.  564, 

67  Fed.  80. 

f 


3S 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cot.  TkiM, 


mgainst  Qgilvie  was  inadmissible,  and  that 
the  District  Court  did  not  err  in  quashing 
the  service  and  setting  aside  the  proceed- 
ings based  thereon,  nor  in  refusing  appel- 
lant's petition  for  enforcement  ol  the  de- 
cree against  him. 
Final  orders  affirmed. 


TEXAS   k   PACIFIC   RAILWAY   COM- 
PANY, Plflf.  in  Err., 

V. 

A.  R.  RIGSBY. 

(See  S.  C.  Reporter's  ed.  33-43.) 

Master  and  servant  —  safety  appliances 
—  defective  ladder  ^  employee  not 
coupling  or  uncoupling  cars. 

1.  A  switchman  in  the  employ  of  an  in- 
terstate railway  company  who  was  injured 
throuffh  a  defect  in  a  hand  hold  or  grab 
iron  forming  one  of  the  rungs  of  a  ladder 
on  a  box  car  which  he  was  descending  aft- 
er having  set  a  brake  operated  from  the 
roof  of  such  car  is  withm  the  protection 
afforded  by  the  safetv  appliance  act  of 
March  2,  1803  (27  Stat,  at  L.  531,  chap. 
106,  Comp.  Stat.  1913,  §  8605),  as  amended 
by  the  act  of  April  14,  1010  (36  SUt.  at 
L.  298,  chap.  160,  Comp.  Stat.  1013,  §  8617), 
I  2,  which  commands  that  all  cars  requiring 
secure  ladders  shall  be  equipped  with  them. 
[For  other  caseB,  see  Master  and  Servant,  II. 

a,  2.  in  Digest  Sup.  Ct.  1908.] 

Master  and  servant  —  safety  appliances 
^  employee  not  engaged  in  interstate 
commerce. 

2.  An  employee  of  an  interstate  rail- 
way company,  though  not  himself  engaged 
in  interstate  commerce,  is  within  the  pro- 
tection of  the  Federal  safety  appliance  acts 
of  March  2,  1893  (27  Stat,  at  L.  531,  chap. 
196,  Comp.  Stat.  1913,  §  8605),  March  2, 
1903  (32  Stat,  at  L.  943,  chap.  976,  Comp. 
Stat.  1913,  §  8613),  and  April  14,  1910 
(36  SUt.  at  L.  298,  chap.  160,  Comp.  Stat 
1913,  §  8617),  which  impliedly  create  a 
private  right  of  action  in  favor  of  an  em- 
ployee injured  through  a  violation  of  the 
commands  of  those  statutes  that  certain 
safety  appliances  be  installed  upon  railway 
cars  used  upon  a  highway  of  interstate 
commerce. 

[For  other  cases,  see  Master  and  Servant,  II. 
a,  2.  In  Digest  Sup.  Ct.  1008.] 

Commerce  —  power  of  Congress  —  safe- 
ty appliances. 

3.  Conmss  could,  under  the  commerce 
clause  of  the  Federal  Constitution,  create, 
as  it  did  by  the  safety  appliance  acts  of 
March  2,  1893  (27  Stat,  at  L.  531,  chap. 
196,  Comp.  Stat.  1913,  §  8605 )«  March  2, 
1903  (32  Stat,  at  L.  943,  chap.  976,  Comp. 

None — On  duty  and  liability  under  Fed- 
eral and  state  safety  appliance  acts — see 
notes  to  Chicago,  M.  &  St.  P.  R.  Co.  v. 
United  States,  20  L.RA.(N.S.)  473,  and 
X«lce  Shore  &  M.  S.  R.  Ck>.  t.  Benson,  41 
L.JRji.(NJ3.)   49. 


Stat.  1913,  S  8613),  and  AprU  14,  1910 
(36  Stat,  at  L.  298,  chap.  16(5,  Comp.  Stat 
1913,  §  8617),  a  liability  on  the  part  of 
an  interstate  railway  company  to  an  em- 
ployee injured  through  a  violation  of  the 
commands  of  those  statutes  tliat  certain 
safety  appliances  be  installed  upon  railwi^ 
cars  used  upon  a  highway  of  interstate  com- 
merce, even  though  the  injured  employee 
was  not  himself  engaged  in  interstate  com- 
merce. 

[For    other    cases,    see    Commerce,    29-^6.    Is 
Digest  Sup.  Ct.  1908.] 

Master  and  servant  —  safetj  appliances 
moving  car  for  repairs. 

4.  The  liability  of  an  interstate  rail- 
way company  under  the  Federal  safety  ap- 
pliance acts  of  March  2,  1893  (27  Stat,  at 
L  531,  chap.  196,  Comp.  SUt.  1913,  g  8606), 
March  2,  1903  (32  Stat,  at  L.  943,  chap. 
976,  Comp.  Stat.  1913,  g  8613),  and  April 
14,  1910  (36  Stat,  at  L.  298,  ehap.  160, 
Comp.  Stat.  1913,  §  8617),  to  an  employes 
injured  through  a  violation  of  the  oonunands 
of  those  statutes  that  certain  safety  appli- 
ances be  installed  upon  railway  cars  used 
upon  a  highway  of  interstate  commerosu 
exists,  although  the  employee  when  injured 
was  engaged  in  taking  the  defective  ear  to 
the  shops  for  repairs. 

[For  other  cases,  see  Master  and  Servant.  IL 

a,  2,  in  Digest  Sup.  Ct.  1908.] 

Master  and  servant  ^  safety  appliances 

—  negligence. 

5.  Interstate  railway  companies  are 
charged  with  an  absolute  and  unqualified 
duty,  irrespective  of  any  question  of  negli- 
gence, to  maintain  in  proper  condition  the 
safety  appliances  which,  under  the  acta  of 
March  2,  1893  (27  SUt.  at  L.  531,  chap. 
196,  Comp.  Stat.  1913,  §  8605),  March  2, 
1903  (32  SUt.  at  L.  943,  chap.  976,  Comp. 
SUt.  1913,  §  8613),  and  April  14,  1910  (M 
Stat,  at  L.  298,  chap.  160,  Comp.  SUt.  1013, 
§  8617),  must  be  insUlled  on  railway  cars 
used  on  a  highway  of  intorsUte  commerce. 
LFor  other  cuscs,  see  Master  and  Servant,  IL 

a,  2,  In  Digest  Sup.  Ct.  1908.] 

Master  and  servant  —  safety  appliances 

—  assumption  of  risk. 

6.  The  railwJEiy  employee's  knowledge 
of  the  defect  does  not  bar  his  suit  to  recover 
damages  for  injuries  attribuUble  to  the 
railway  company's  violation  of  the  com- 
mands of  the  safety  appliance  acts  of  Idareh 
2, 1893  (27  SUt.  at  L.  531,  chap.  196,  Comp. 
SUt.  1913,  §  8605),  March  2,  1903  (32 
SUt.  at  L.  943,  chap.  976,  Comp.  SUt.  1913, 
§  8613),  and  Aprilu,  1910  (36  SUt.  at 
L.  298,  chap.  160,  Comp.  SUt.  1913,  |  8617), 
since  by  §  8  of  the  earliest  act  an  employee 
injured  by  any  car  in  use  contrary  to  iti 
provisions  is  not  to  be  deemed  to  have  as- 
sumed the  risk,  although  continuing  in  the 
employment  of  the  carrier  after  the  unlaw- 
ful use  of  the  car  has  been  broi^ght  to  his 
knowledge,  and  by  {  5  of  the  latest  act  the 
provisions  of  the  earliest  act  are  made  ap- 
plicable to  it,  with  a  qualification  that  does 
not  affect  remedial  actions  by  emploTees. 
[For  other  cases,  see  Master  and  Servant.  IL 

b,  4,  m  Digest  Sup.  Ct.  1908.] 


[No.  623.] 


941  V.  B. 


1916. 


TEXAS  4  P.  R.  CX).  ▼.  RIQSBY. 


Argued  February  21,  1916.     Decided  April 

17,  1916. 

IN  ERROR  to  the  United  States  Circuit 
Court  of  Appeals  for  the  Fifth  Circuit 
to  review  a  judgment  which  affirmed  a  judg- 
ment of  the  District  Court  for  the  Eastern 
District  of  Texas  in  favor  of  plaintiff  in 
an  action  for  damages  based  upon  the  Fed- 
eral safety  appliance  acts.     Affirmed. 

See  same  case  below,  188  C.  C.  A.  51,  222 
Fed.  221. 

The  facts  are  stated  in  the  opinion. 

Mr.  F.  H.  Prendergost  argued  the  cause 
and  filed  a  brief  for  plaintiff  in  error: 

To  recover,  Rigby  must  bring  himself  un- 
der the  safety  appliance  act  and  under  the 
employers'  liability  act.  Both  the  car  and 
the  man  must  be  engaged  in  interstate 
eonunerce. 

Illinois  C.  R.  Co.  v.  Behrens,  233  U.  S. 
474,  68  L.  ed.  1051,  34  Sup.  Ct.  Rep.  646, 
Ann.  Gas.  1914C,  163;  Pederson  v.  Dela- 
ware, L.  k  W.  R.  Co.  229  U.  S.  146,  57 
L.  ed.  1125,  33  Sup.  Ct.  Rep.  648,  Ann. 
Cas.  1914C,  153;  Southern  R.  Go.  v.  United 
States,  222  U.  S.  27,  56  L.  ed.  75,  32  Sup. 
Ct  Rep.  2,  3  N.  C.  C.  A.  822. 

The  car  was  not  under  the  safety  appli- 
ance act,  bccai^se  it  had  been  withdrawn 
from  all  service  for  several  weeks. 

Southern  R.  Co.  v.  United  SUtes,  222 
U.  S.  27,  50  L.  ed.  75,  32  Sup.  Ct.  Rep.  2, 

3  N.  C.  C.  A.  822;  Southern  R.  Co.  v. 
Snyder,  124  C.  C.  A.  60,  205  Fed.  870. 

The  car  was  not  under  the  safety  appli- 
ance act  because  it  was  not  being  used  at 
the  time  in  any  character  of  commerce, 
but  was  being  taken  from  the  railroad  yard 
into  the  shops  to  be  repaired. 

Illinois  C.  R.  Co.  v.  Behrens,  233  U.  S. 
474,  58  L.  ed.  1051,  34  Sup.  Ct.  Rep.  646, 
Ann.  Cas.  1914C,  163;  Southern  R.  Co.  v. 
Snyder,  supra. 

Rigsby  was  not  under  the  protection  of 
"the  safety  appliance  act  because  he  was 
not  at  the  time  engaged  in  interstate  com- 
merce. 

Boyle  T.  Pennsylvania   R.   Co.   221   Fed. 
455;  Delaware,  L.  A  W.  R.  Co.  v.  Yurkonis, 
238  U.  S.  439,  59  L.  ed.  1397,  35  Sup.  Ct. 
^ep.     902;     Employers'     Liability     Cases 
(Howard  ▼.  Illinois  C.  R.  Co.)    207   U.  S. 
490,  52  L.  ed.  305,  28  Sup.  Ct.  Rep.  141; 
Illinois  C.  R.  Go.  v.  Behrens,  233  U.  S.  474, 
58  L.  ed.  1051,  34  Sup.  Ct  Rep.  646,  Ann. 
Cas.   1914C,   163;    Second   Employers'   Lia- 
bility    Cases      (Mondou     v.     New     York 

4  N.  H.  R.  Co.)  223  U.  S.  51,  56  L.  ed. 
346,  32  Sup.  Ct.  Rep.  169;  Pedersen  v. 
Delaware,  L.  &  W.  R.  Co.  229  U.  S.  146, 
57  L.  ed.  1125..  33  Sup.  Ct.  Rep.  648,  Ann. 
Cas.   1914C,  153. 

80  Jj.  ed. 


Rigsby  was  not  under  the  protection  of 
the  safety  appliance  act,  because  at  the 
time  he  was  injured  he  was  not  coupling 
or  uncoupling  cars. 

Bishop,  Non-Contract  Law,  446;  The 
Eugene  F.  Moran  v.  New  York  O.  ft  H.  R. 
Co.  212  U.  S.  472,  53  L.  ed.  603,  29  Sup. 
Ct.  Rep.  339;  Employers'  Liability  Cases 
(Howard  v.  Illinois  C.  R.  Co.)  207  U.  S. 
490,  52  L.  ed.  306,  28  Sup.  Ct.  Rep.  141; 
Second  Employers'  Liability  Cases  (Mon- 
dou V.  New  York  &  N.  H.  R.  Co.)  223  U.  S. 
51,  56  L.  ed.  346,  32  Sup.  Ct.  Rep.  169; 
Potter's  Dwarr.  Stat,  k  Constitutions,  128, 
140;  St.  Louis  &  S.  F.  R.  Co.  v.  Conarty, 
238  U.  S.  243,  59  L.  ed.  1290,  35  Sup.  Ct. 
Rep.  785;  Shearm.  k  Redf.  Neg.  §  8;  Wil- 
liams ▼.  Chicago  k  A.  R.  Co.  135  111.  491, 
11  L.R.A.  352,  25  Am.  St.  Rep.  397,  26* 
N.  E.  661. 

There  was  no  common-law  negligence 
giving  Rigsby  a  right  to  recover  damages. 

Flanagan  v.  Chicago  k  N.  W.  R.  Co.  45 
Wis.  08,  50  Wis.  462,  7  N.  W.  337;  Wat- 
son  v.  Houston  k  T.  C.  R.  Co.  58  Tex.  439 

Mr.  S.  P.  Jones  argued  the  cause  and 
filed  a  brief  for  defendant  in  error: 

The  car  from  which  defendant  in  error 
fell  was  in  use  on  an  interstate  highway, 
and  the  injury  was  caused  by  a  defective 
safety  appliance. 

Delk  V.  St.  Louis  &  S.  F.  R.  Co.  220  U.  S. 
580,  55  L.  ed.  590,  31  Sup.  Ct.  Rep.  617; 
New  York  C.  &  H.  R.  R.  Co.  v.  Carr,  238 
U.  S.  260,  59  L.  ed.  1298,  35  Sup.  Ct.  Rep. 
780,  9  N.  O.  C.  A.  1;  Johnson  v.  Southern 
P.  Co.  196  U.  S.  13,  49  L.  ed.  367,  25  Sup. 
Ct.  Rep.  158,  17  Am.  Neg.  Rep.  412;  South- 
em  R.  Co.  y.  United  SUtes,  222  U.  S.  23, 
56  L.  ed.  73,  32  Sup.  Ct.  Rep.  2,  3  N.  C.  C. 
A.  822. 

The  safety  appliance  laws  give  a  cause 
of  action  to  employees  injured  by  defects 
while  a  car  is  in  use  on  an  interstate  high- 
way, though  the  employee  is  not  engaged 
at  the  time  in  interstate  commerce. 

Southern  R.  Co.  v.  United  States,  supra; 
United  SUtes  ▼.  Chicago,  B.  k  Q.  R.  Co. 
237  U.  S.  410,  59  L.  ed.  1023,  35  Su^.  Ct. 
Rep.  634;  United  SUtes  v.  Erie  R.  Co. 
237  U.  S.  402,  59  L.  ed.  1019,  35  Sup.  Ct. 
Rep.  621. 

Congress  has  the  power  to  give  to  em- 
ployees of  an  intersUU  highway,  who  are 
not  at  the  time  engaging  in  interstate 
commerce,  a  right  of  recovery  for  a  failure 
of  the  railway  company  to  equip  the  cars 
that  are  being  used  on  the  intersUte  high- 
way with  safety  appliances. 

Employers'  Liability  Cases  (Howard  y. 
Illinois  C.  R.  Co.)  207  U.  S.  463,  62  L.  ed. 
297,  28  Sup.  Ct.  Rep.  141;  Illinois  C.  R. 
Co.  y.  Behrens,  233  U.  S«  473,  68  L.  ed. 


36-88 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbkm, 


1051,  34  Sup.  Ct.  Rep.  646,  Ann.  Gas.  1914C, 
163;  Great  Northern  R.  Co.  t.  Otos,  239 
U.  S.  349,  ante^  322/  36  Sup.  Ct.  Rep.  124. 

[36]  Mr.  Justice  Pitney  delivered  the 
opinion  of  the  court: 

The  defendant  in  error,  Rigabj,  while  in 
the  employ  of  plaintiff  in  error  as  a  switch- 
man in  its  yard  at  Marshall,  Texas,  was 
engaged,  with  others  of  the  yard  crew,  in 
taking  some  ''bad  order"  cars  to  the  shops 
there  to  be  repaired.  The  switch  engine 
and  crew  went  upon  a  spur  track,  hauled 
out  three  cars,  and  switched  them  upon 
the  main  line,  intending  to  go  back  upon 
the  spur  track  for  others,  to  be  taken  with 
the  three  to  the  shops,  which  were  on  the 
opposite  side  of  the  main  line  from  the  spur 
track.  Rigsby,  in  the  course  of  his  duties, 
rode  upon  the  top  of  one  of  the  cars  (a  box 
car)  in  order  to  set  the  brakes  and  stop 
them  and  hold  them  upon  the  main  line. 
He  did  this,  and  while  descending  from  the 
car  to  return  to  the  spur  track  he  fell, 
owing  to  a  defect  in  one  of  the  Jiand  holds 
or  grab  irons  that  formed  the  rungs  of  the 
ladder,  and  sustained  personal  injuries. 
This  car  had  been  out  of  service  and  wait- 
ing on  the  spur  track  for  some  days,  per- 
haps a  month.  The  occurrence  took  place 
September  4,  1912.  In  an  action  for  dam- 
ages, based  upon  the  Federal  Safety  Ap- 
pliance acts,i  the  above  facts  appeared  with- 
out dispute,  and  it  was  admitted  that  the 
main  line  of  defendant's  railroad  was  in 
daily  use  for  the  passage  of  freight  and 
passenger  trains  in  interstate  commerce. 
The  trial  court  instructed  the  jury,  as  mat- 
ter of  law,  that  they  should  return  a  verdict 
in  favor  of  plaintiff,  the  only  question  sub- 
mitted to  them  being  the  amount  of  Ihe 
damages.  The  railway  company  excepted  to 
this  charge,  and  requested  certain  specific 
instructions  based  upon  the  theory  that  the 
car  was  out  of  service  and  marked  'iMtd 
order,"  which  was  notice  to  Rigsby  of  its 
condition;  that  there  was  no  evidence  that 
the  condition  of  the  car  had  resulted  from 
any  [37]  negligence  of  defendant;  that  it 
was  at  the  time  being  taken  to  the  shop 
for  repairs;  and  that  for  these  reasons 
plaintiff  could  not  recover.  The  instruc- 
tions were  refused,  and  exceptions  taken. 
The  resulting  judgmoit  was  affirmed  by 
the  circuit  court  of  appeals,  138  G.  0.  A. 
61,  222  Fed.  221. 

It  is  insisted  that  Rigsby  was  not  with- 

lAct  of  March  2,  1893,  chap.  196,  27 
SUt.  at  L.  631,  Comp.  Stat.  1918,  S  8606; 
amendatory  act  of  March  2,  1903,  chap. 
976,  32  Stat,  at  L.  943,  Comp.  Stat.  1913, 
§  8613;  supplementary  act  of  April  14, 1910, 
chap.  160,  36  SUt.  at  L.  298,  Comp.  Stat. 
1913,  S  8617. 
876 


in  the  protection  of  the  act  because  he  was 
not  coupling  or  uncoupling  cars  at  the  time 
he  was  injured.  The  reference  is  to  S  4  of 
the  act  of  March  2,  1893,  which  requires 
"secure  grab  irons  or  hand  holds  in  the 
ends  and  sides  of  each  car  for  greater  se- 
curity to  men  in  coupling  and  uncoupling 
cars."  This  action  was  not  based  upon  that 
provision,  however,  but  upon  I  2  of  the 
amendment  of  1910,  which  declares:  "AU 
cars  must  be  equipped  with  secure  sill  steps 
and  efficient  hand  brakes;  all  cars  requir- 
ing secure  ladders  and  secure  running 
boards  shall  be  equipped  with  such  lad- 
ders and  running  boards,  and  all  cars 
having  ladders  shall  also  be  equipped 
with  secure  hand  holds  or  grab  irons 
on  their  roofs  at  the  tops  of  such  lad- 
ders." There  can  be  no  question  that 
a  box  car  having  a  hand  brake  operated 
from  the  roof  requires  also  a  secure  ladder 
to  enable  the  employee  to  sufely  ascend  and 
descend,  and  that  the  provision  quoted  was 
intended  for  the  especial  protection  of  em- 
ployees engaged  in  duties  such  as  that  which 
plaintiff  was  performing. 

It  is  earnestly  insisted  that  Rigsby  w^ 
•not  under  the  protection  of  the  safety  ap- 
pliance acts  because,  at  the  time  he  was 
injured,  he  was  not  engaged  in  interstate 
commerce.  By  §  1  of  the  1903  amendment 
its  provisions  and  requirements  and  those 
of  the  act  of  1893  were  made  to  apply  *'to 
all  trains,  locomotives,  tenders,  cars,  and 
similar  vehicles  used  on  any  railroad  en- 
gaged in  interstate  commerce  .  .  .  and 
to  all  other  locomotives,  tenders,  cars,  and 
similar  vehicles  used  in  connection  there- 
with," subject  to  an  exception  not  now  per- 
tinent. And  by  S  6  of  the  1910  amendment 
the  provisions  of  the  previous  acts  L38J 
were  made  to  apply  to  that  act,  with  •  a 
qualification  that  does  not  affect  the  pres- 
ent case.  In  Southern  R.  Co.  v.  United 
States,  222  U.  S.  20,  56  L.  ed.  72,  32  Sup. 
Ct.  Rep.  2,  8  N.  C.  C.  A.  822,  which  was  an 
action  to  recover  penalties  for  a  violation  of 
the  acts  with  respect  to  cars  some  of  which 
were  moved  in  intrastate  traffic,  and  not  in 
connection  with  any  car  or  cars  used  in  in- 
terstate commerce,  but  upon  a  railroad 
which  was  a  part  of  a  through  highway  for 
interstate  traffic,  it  was  held  that  the  1903 
amendment  enlarged  the  scope  of  the  origi- 
nal act  so  as  to  embrace  all  cars  used  on 
any  railway  that  is  a  highway  of  in** 
terstate  commerce,  whether  the  particu- 
lar ears  are  at  the  time  employed  in 
such  commerce  or  not.  The;  question 
whether  the  legislation  as  thus  construed 
was  within  the  power  of  Congress  under 
the  oommeroe  clause  was  answered  in 
the  affirmative,  the  court  saying  (p.  27): 
"Speaking  only  of  railroads  which  are  high* 

241  U.  8* 


1915. 


TEXAS  ft  P.  B.  00.  y.  RIGSBY. 


8S-40 


ways  of  both  interstate  and  intrastate  oom- 
merce,  these  things  are  of  common  knowl- 
edge: Both  classes  of  traffic  are  at  times 
oarried  in  the  same  car,  and  when  this  is 
not  the  case,  the  cars  in  which  they  are 
carried  are  frequently  commingled  in  the 
same  train  and  in  the  switching  and  other 
movements  at  terminals.  Cars  are  seldom 
set  apart  for  exclusive  use  in  moving  either 
class  of  traffic,  but  generally  are  used  inter- 
changeably in  moving  both;  and  the  situa- 
tion is  much  the  same  with  trainmen, 
switchmen,  and  like  employees,  for  they 
usually,  if  not  necessarily,  have  to  do  with 
both  classes  of  traffic.  Besides,  the  several 
trains  on  the  same  railroad  are  not  inde- 
pendent in  point  of  movement  and  safety, 
but  are  interdependent,  for  whatever  brings 
delay  or  disaster  to  one,  or  results  in  dis- 
abling one  of  its  operatives,  is  calculated 
to  impede  the  progress  and  imperil  the  safe- 
ty of  other  trains.  And  so  the  absence  of 
appropriate  safety  appliances  from  any  part 
of  any  train  is  a  menace  not  only  to  that 
train,  but  to  others." 

It  is  argued  that  the  authority  of  that 
case  goes  no  further  than  to  sustain  the  penal 
provisions  of  the  act,  [30]  and  doea  not  up- 
hold a  right  of  action  by  an  employee  in- 
jured through  a  violation  of  its  provisions, 
unless  he  was  engaged  in  interstate  com- 
merce.  That  the  scope  of  the  legislation  is 
broad  enough  to  include  all  employees  thus 
injured,  irrespective  of  the  character  of  the 
commerce  in   which   they   are  engaged,   is 
plain.    The  title  of  the  act,  repeated  in  that 
of  each  supplement,  is  general:     "An  Act 
to  Promote  the  Safety  of  Employees  and 
Travelers,"  etc.;  and  in  the  proviso  to  §  4 
of  the  supplement  of  1910  there  is  a  reserva- 
tion as  to  "liability  in  any  remedial  action 
for  the  death  or  injury  of  any  railroad  em- 
ployee."   None  of  the  acts,  indeed,  contains 
express  language  conferring  a  right  of  ac- 
tion for  the  death  or  injury  of  an  employee; 
but  the  safety  of  employees  and  travelers 
is  their  principal  object,  and  the  right  of 
private  action  by  an  injured  employee,  even 
without   the   employers'    liability   act,   has 
never  been  doubted.  (See  Johnson  v.  South- 
em  P.  Co.  196  U.  S.  1,  49  L.  ed.  363,  25 
Sup.  Ct.  Bep.  168,  17  Am.  Neg.  Bep.  412; 
Schlemmer  v.  Buffalo,  B.  &  P.  B.  Co.  205 
U.  S.  1,  8,  61  L.  ed.  681,  684,  27  Sup.  Ct. 
Bep.  407,  220  U.  S.  590,  692,  66  L.  ed.  696, 
698,  31  Sup.  Ct.  Bep.  561 ;  St.  Louis,  I.  M. 
ft  S.  B.  Co.  V.  Taylor,  210  U.  S.  281,  284, 
295,   52   L.  ed.   1061,   1063,   1068,  28  Sup. 
Ct.  Bep.  616,  21  Am.  Neg.  Bep.  466;  Delk 
Y.  St.  Louis  ft  S.  F.  B.  Co.  220  U.  S.  580, 
W  Lb  ed.  690,  31  Sup.  Ct.  Bep.  617;  Cleve- 
Umd,  C.  C.  ft  St.  L.  B.  Co.  v.  Baker,  33  0. 
a  A.  468,  63  U.  S.  App.  653,  91  Fed.  224; 
Denver  ft  B.  G.  B.  Co.  t.  Arrighi»  63  0.  0. 
•0  li.  ed. 


A.  649,  129  Fed.  347;  Chicago,  M.  ft  St. 
P.  B.  Co.  V.  Voelker,  70  L.BAl.  264,  65 
0.  0.  A.  226,  129  Fed.  522;  Chicago  Junc- 
tion B.  Co.  V.  King,  94  C.  C.  A.  662,  169 
Fed.  372.)  A  disregard  of  the  command  of 
the  statute  is  a  wrongful  act,  and  where  it 
results  in  damage  to  one  of  the  class  for 
whose  especial  benefit  the  statute  was  en- 
acted, the  right  to  recover  the  damages  from 
the  party  in  default  is  implied,  according 
to  a  doctrine  of  the  common  law  expressed 
in  1  Comyn's  Dig.  title,  "Action  upon  Stat- 
ute" (F),  in  these  words:  "So,  in  every 
case,  where  a  statute  enacts  or  prohibits  a 
thing  for  the  benefit  of  a  person,  he  shall 
have  a  remedy  upon  the  same  statute  for 
the  thing  enacted  for  his  advantage,  or  for 
the  recompense  of  a  wrong  done  to  him  con- 
trary to  the  said  law."  (Per  Holt,  Ch.  J., 
Anonymous,  6  Mod.  26,  27.)  This  is  but 
an  application  of  the  maxim,  [40]  Ubi  jua 
ibi  remedium.  See  3  Bl.  Com.  51,  123; 
Couch  V.  Steel,  3  El.  ft  Bl.  402,  411,  23  L. 
J.  Q.  B.  N.  S.  121, 126,  2  C.  L.  B.  940,  18  Jur. 
515,  2  Week.  Bep.  170.  The  inference  of  a 
private  right  of  action  in  the  present  in- 
stance is  rendered  irresistible  by  the  provi- 
sion of  §  8  of  the  act  of  1893  that  an  em- 
ployee injured  by  any  car,  etc.,  in  use  con- 
trary to  the  act,  shall  not  be  deemed  to  have 
assiuned  the  risk,  and  by  the  language  above 
cited  from  the  proviso  in  §  4  of  the  1910 
act. 

Plaintiff's  injury  was  directly  attribut- 
able to  a  defect  in  an  appliance  which,  by 
the  1910  amendment,  was  required  to  be 
secure,  and  the  act  must  therefore  be  deemed 
to  create  a  liability  in  his  favor,  unless  it 
be  beyond  the  power  of  Congress  under  the 
commerce  clause  of  the  Constitution  to 
create  such  a  liability  in  favor  of  one  not 
employed  in  interstate  commerce.  In  Illi- 
nois 0.  B.  Co.  v.  Behrens,  233  U.  S.  473,  477, 
58  L.  ed.  1051,  1054,  34  Sup.  Ct.  Bep.  646. 
Ann.  Cas.  19 140,  163,  the  court  said,  ar- 
guendo,  with  reference  to  this  topic:  "Con- 
sidering the  status  of  the  railroad  as  a  high- 
way for  both  interstate  and  intrastate  com- 
merce, the  interdependence  of  the  two  classes 
of  traffic  in  point  of  movement  and  safety, 
the  practical  difficulty  in  .separating'  or  di- 
viding the  general  work  of  the  switching 
crew,  and  the  nature  and  extent  of  the  pow- 
er confided  to  Congress  by  the  commerce 
clause  of  the  Constitution,  we  entertain  no 
doubt  that  the  liability  of  the  carrier  for 
inji^ries  suffered  by  a  member  of  the  crew 
in  the  course  of  its  general  work  was  sub- 
ject to  regulation  by  Congress,  whether  the 
particular  service  being  performed  at  the 
time  of  the  injury,  isolatedly  considered, 
was  in  interstate  or  intrastate  commerce." 
Judicial  expressions  in  previous  cases  were 
referred  to«  and  the  decision  in  Employers' 


4(MS 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cot.  Tkuc* 


Liability  Cases  (Howard  v.  Illinois  C.  R. 
Co.)  207  U.  S.  463,  52  L.  ed.  297,  28  Sup. 
Ct.  Rep.  141,  was  distinguished  because  the 
act  of  June  11,  1906  [34  Stat,  at  L.  232, 
chap.  3073],  there  pronounced  invalid,  at- 
tempted to  regulate  the  liability  of  every 
carrier  in  interstate  commerce  for  any  in- 
jury to  any  employee,  even  though  his  em- 
ployment had  no  relation  whatever  to  in- 
terstate commerce. 

[41]  The  doing  of  plaintiff's  work,  and 
his  security  while  doing  it,  cannot  be  said 
to  have  been  wholly  unrelated  to  the  safety 
of  the  main  track  as  a  highway  of  inter- 
state commerce;  for  a  failure  to  set  the 
brakes  'so  as  temporarily  to  hold  the  "bad 
order"  cars  in  place  on  that  track  would 
have  been  obviously  dangerous  to  through 
traffic;,  while  an  injury  to  the  brakeman 
had  a  tendency  to  cause  delay  in  clearing 
the  main  line  for  such  traffic.  Perhaps 
upon  the  mere  ground  of  the  relation  of 
his  work  to  the  immediate  safety  of  the 
main  track,  plaintiff's  right  of  action 
might  be  sustained. 

But  we  are  unwilling  to  place  the  deci- 
sion upon  so  narrow  a  ground,  because  we 
are  convinced  that  there  is  no  constitution- 
al obstacle  in  the  way  of  giving  to  the  act 
in  its  remedial  aspect  as  broad  an  applica- 
tion as  was  accorded  to  its  penal  provisions 
in  Southern  R.  Co.  v.  United  States,  supra. 
In  addition  to  what  has  been  quoted  from 
the  opinions  in  that  case  and  the  Behrens 
Case  the  following  considerations  are  perti- 
nent. In  the  exercise  of  its  plenary  power 
to  regulate  commerce  between  the  states. 
Congress  has  deemed  it  proper,  for  the  pro- 
tection of  employees  and  travelers,  to  re- 
quire certain  safety  appliances  to  be  in- 
stalled upon  railroad  cars  used  upon  a 
highway  of  interstate  commerce,  irrespec- 
tive of  the  use  made  of  any  particular  car 
at  any  particular  time.  Congress  having 
entered  this  field  of  regulation,  it  follows 
from  the  paramount  character  of  its  author- 
ity that  state  regulation  of  the  subject- 
matter  is  excluded.  Southern  R.  Co.  v. 
Railroad  Commission,  236  U.  S.  439,  69  L. 
ed.  661,  35  Sup.  Ct.  Rep.  304.  Without  the 
express  leave  of  Congress,  it  is  not  possible, 
while  the  Federal  l^slation  stands,  for  the 
states  to  make  or  enforce  inconsistent  laws 
giving  redress  for  injuries  to  workmen  or 
travelers  occasioned  by  the  absence  or  inse- 
curity of  such  safety  devices,  any  more  than 
laws  prescribing  the  character  of  the  appli- 
ances that  shall  be  maintained,  or  imposing 
penalties  for  failure  to  maintain  them;  for 
the  consequences  [42]  that  follow  a  breach 
of  the  law  are  vital  and  integral  to  its  effect 
as  a  regulation  of  conduct,  liability  to  pri- 
vate suit  is  or  may  be  as  potent  a  deterrent 
as  liability  to  public  prosecution,  and  in 
878 


this  respect  there  is  no  distinction  depend- 
ent upon  whether  the  suitor  was  injured 
while  employed  or  traveling  in  one  kind  of 
conmierce  rather  than  the  other.  Hence, 
while  it  may  be  conceded,  for  the  purposes 
of  the  argument,  that  the  mere  question  of 
compensation  to  persons  injured  in  intra- 
state commerce  is  of  no  concern  to  Con- 
gress,  it  must  be  held  that  the  liability  of 
interstate  carriers  to  pay  such  compensa- 
tion because  of  their  disregard  of  regula- 
tions established  primarily  for  s&feguarding 
commerce  between  the  states  is  a  matter 
within  the  control  of  Congress;  for  unless 
persons  injured  in  intrastate  commerce  are 
to  be  excluded  from  the  benefit  of  a 
remedial  action  that  is  provided  for  per- 
sons similarly  injured  in  interstate  com- 
merce,— a  discrimination  certainly  not  re- 
quired by  anything  in  the  Constitution, — 
remedial  actions  in  behalf  of  intrastate  em- 
ployees and  travelers  must  either  be  gov- 
erned by  the  acts  of  Congress  or  else  be 
left  subject  to  regulation  by  the  several 
states,  with  probable  differences  in  the  law 
material  to  its  effect  as  regulatory  of  the 
conduct  of  the  carrier.  We  are  there- 
fore brought  to  the  conclusion  that  the 
right  of  private  action  by  an  employee  in- 
jured while  engaged  in  duties  unconnect- 
ed with  interstate  eonunerce,  but  injured 
through  a  defect  in  a  safety  appliance  re- 
quired by  the  act  of  Congress  to  be  made 
secure,  has  so  intimate  a  relation  to  t)ie 
operation  of  the  act  as  a  regulation  of  com- 
merce between  the  states  that  it  is  with- 
in the  constitutional  grant  of  authority  over 
that  subject. 

It  is  argued  that  the  statute  does  not  ap- 
ply except  where  the  car  is  in  use  in  trans- 
portation at  the  time  of  the  injury  to  the 
employee,  and  that  since  it  does  not  appear 
that  the  car  in  question  was  in  bad  order 
because  of  any  negligence  on  the  part  of 
the  railway  company,  [43]  and  it  was  be- 
ing taken  to  the  shop  for  repairs  at  the  time 
of  the  accident,  there  is  no  liability  for  in- 
juries to  an  employee  who  had  notice  of 
its  bad  condition,  and  was  engaged  in  the 
very  duty  of  taking  it  to  the  shop.  This 
is  sufficiently  answered  by  our  recent  deci- 
sion in  Great  Northern  R.  Co.  v.  Otos,  239  U. 
S.  349,  351,  ante,  322,  323,  36  Sup.  Ct.  Rep. 
124,  where  it  was  pointed  out  that  although 
S  4  of  the  act  of  1910  relieves  the  carrier 
from  the  statutory  penalties  while  a  car  is 
being  hauled  to  the  nearest  available  point 
for  repairs,  it  expressly  provides  that  it 
shall  not  be  construed  to  relieve  a  carrier 
from  liability  in  a  remedial  action  for  the 
death  or  injury  of  an  employee  caused  by 
or  in  connection  with  the  movement  of  a 
car  with  defective  equipment.  The  ques- 
tion whether  the  defective  condition  of  the 

941  V.  8. 


J916. 


RICHARDSON  ▼.  FAJARDO  SUGAR  CO. 


43,  44,  46,  47 


ladder  was  due  to  defendant's  negligence  is 
immaterial,  since  the  statute  imposes  an 
absolute  and  unqualified  duty  to  maintain 
the  appliance  in  secure  condition.  St. 
Louis,  I.  M.  k  S.  R.  Co.  v.  Taylor,  210  U. 
&  281,  204,  205,  52  L.  ed.  1061,  1068,  28 
Sup.  Ct.  Rep.  616,  21  Am.  Neg.  Rep.  464; 
Chicago,  B.  k  Q.  R.  Co.  v.  United  SUtes, 
220  U.  S.  559,  575,  56  L.  ed.  582,  588,  31 
Sup.  Ct.  Rep.  612;  Delk  v.  St.  Louis  &  S. 
P.  R.  Co.  220  U.  S.  580,  580,  56  L.  ed.  590, 
695,  31  Sup.  Ct.  Rep.  617. 

Of  course,  the  employee's  knowledge  of 
the  defect  does  not  bar  his  suit,  for  by  §  8 
of  the  act  of  1803  an  employee  injured  by 
any  car  in  use  contrary  to  the  provisions 
of  the  act  is  not  to  be  deemed  to  have  as- 
sumed the  risk,  although  continuing  in  the 
employment  of  the  carrier  after  the  imlaw- 
ful  use  of  tlie  car  has  been  brought  to  his 
knowledge;  and  by  §  5  of  the  act  of  1010 
the  provisions  of  the  1803  act  are  made 
applicable  to  it,  with  a  qualification  that 
does  not  affect  remedial  actions  by  em- 
ployees. 

The  Circuit  Court  of  Appeals  correctly 
disposed  of  the  case,  and  its  judgment  is 
ailirmed. 


[44]  ALLAN  H.  RIcJhARDSON,  as  Treas- 
urer of  Porto  Rico,  Plff.  in  Err., 

V. 

FAJARDO  SUGAR  COMPANY. 

(See  S.  C.  Reporter's  ed.  44-47.) 

Porto    Rloo  —  Immunity    from    salt  — 
oon^ent. 

Any  right  of  Porto  Rico  to  invoke 
immunity  from  suit  without  its  consent  to 
defeat  the  jurisdiction  of  a  Federal  court 
of  an  action  against  the  treasurer  of  Porto 
Rico  to  recover  back  a  tax  wrongfully  as- 
sessed was  lost,  where  the  treasurer,  appear- 
ing by  the  attorney  general  of  Porto  Rico, 
made  full  answer  to  the  original  complaint, 
a  day  for  trial  was  fixed  by  stipulation, 
amended  and  supplemental  complaints  were 
filed  and  appropriately  answered,  and.  the 
court's  jurisdiction  was  first  challenged  by 
a  motion  to  dismiss  eight  months  after  the 
action  was  begim. 

[No.  280.] 

Argued  March  18  and  14,  1916.     Decided 

April  17,  1916. 

IN  ERROR  to  the  District  Court  of  the 
United  States  for  Porto  Rico  to  review 
%  Judgment  for  the  recovery  back  of  a  tax 
wrongfully  assessed.    Affirmed. 

See  same  ease  below,  6  Porto  Rico  Fed. 
Bep.  224. 

The  facts  are  stated  in  the  opinion. 
•0  li.  ed. 


Mr.  Samuel  T.  Ansel!  argued  the  cause^ 
and,  with  Messrs.  Howard  L.  Kern  and 
Lewis  W.  Call,  filed  a  brief  for  plaintiff  in 
error: 

Jurisdiction  of  this  suit  and  of  the  de- 
fendant was  not  conferred  by  the  appear- 
ance and  answer  of  the  attorney  general 
and  the  treasurer  of  Porto  Rico,  for  con- 
sent of  the  sovereign  to  suit  can  be  granted, 
and  exemption  from  suit  waived,  only  by 
the  act  of  the  legislature. 

Minnesota  y.  Hitchcock,  185  U.  S.  373, 
46  L.  ed.  954,  22  Sup.  Ct.  Rep.  650;  Reid 
y.  United  States,  211  U.  S.  529,  53  L.  ed. 
313,  20  Sup.  Ct.  Rep.  171;  Adams  y.  Brad- 
ley, 5  Sawy.  217,  Fed.  Cas.  No.  48;  New 
Orleans  k  C.  R.  Co.  v.  New  Orleans,  34  La. 
Ann.  433;  Case  y.  Terrell,  11  Wall.  199, 
202,  20  L.  ed.  134,  135;  Carr  y.  United 
States,  98  U.  S.  433,  438,  25  L.  ed.  200, 
211;  United  States  y.  Lee,  106  U.  S.  196, 
205,  27  L.  ed.  171,  176,  1  Sup.  Ct.  Rep. 
240;  Stanley  y.  Schwalby,  162  U.  S.  255, 
270,  40  L.  ed.  960,  965,  16  Sup.  Ct.  Rep. 
764;  Northern  Bank  y.  Stone,  88  Fed.  413. 

Mr.  Lorenzo  D.  Armstrong  argued  the 
cause,  and,  with  Mr.  Joseph  W.  Murphy, 
filed  a  brief  for  defendant  in  error: 

Assuming  that  the  statutory  consent  of 
Porto  Rico  to  be  sued  was  impliedly  lim- 
ited to  suits  brought  in  the  insular  courts, 
the  yarious  appearances  and  answers  to  the 
merits  of  the  attorney  general  and  the 
treasurer  of  Porto  Rico,  and  their  failure 
to  object  to  the  jurisdiction  of  the  Federal 
court  for  over  eight  months,  constituted  a 
waiver  of  that  implied  limitation. 

Porto  Rico  y.  Ramos,  232  U.  S.  627,  58 
L.  ed.  763,  34  Sup.  Ct.  Rep.  461;  Porto 
Rico  y.  Emmanuel,  235  U.  S.  251,  59  L.  ed. 
215,  35  Sup.  Ct.  Rep.  33. 

Mr.  Justice  McReynolda  deliyered  the 
opinion  of  the  court: 

Taxes  for  the  fiscal  year  1911-1912, 
amounting  to  $7,038,  were  assessed  against 
defendant  in  error  on  account  of  certain  per- 
sonal property,  and  were  paid  under  pro- 
test. Purporting  to  proceed  under  act  No. 
35,  Laws  of  Porto  Rico,  1011  (copied  in 
margin),!  and  claiming  the  assessment  [47] 
was  wholly  illegal,  the  Sugar  Company 
brought  this  suit  to  recover  the  sum  so  paid. 
In  due  season  the  treasurer  qf  Porto  Rico, 
appearing  by  its  attorney  general,  made  full 
answer  to  the  original  complaint ;  a  day  for 

1  Section  1.  That  in  all  cases  in  which  an 
officer  charged  by  law  with  the  collection  of 
revenue  due  the  government  of  Porto  Rico, 
shall  institute  any  proceeding  or  take  any 
steps  for  the  collection  of  the  same,  alleged 
or  claimed  by  such  officer  to  be"  due  from 
any  person,  the  party  against  whom  the 
proceeding  or  step  is  taken  shall,  if  ha  «Q»Tkr 

^1% 


47,48 


8DFRKUB  COURT  Of  THE  UNITED  STATES. 


Oct.  Hut, 


trial  ma  flscd  hj  itipnUtion;  ui  uncnded 
and  tbo  a  ■upplemental  complaiDt  were 
fll*d  And  appTopriaUlf  uiawered.  Eight 
monthB  after  inBtitution  of  the  action  th« 
Murt'H  jurisdiction  was  flrit  challenged  by 
motion  to  dUmiu,  and  thereafter  the  point 
wa«  peraiatentlj  urged.  The  company  re' 
covered  judgment  for  amount  claimed  {fl 
Porto  Rico  Fed.  Rep.  824)  ;  and  the  cause 
haa  been  argued  here  bj  counsel. 

It  U  not  now  serioualy  maintained  that 
the  tax  was  lawfullj  demanded— in  effect, 
the  contrary  in  conceded. 

A  reveru.1  of  the  district  court's  action 
li  asked  upon  the  theory  that  the  proceed- 
ing ii  agsiDBt  Porto  Rico,  ■  government  of 
■overeign  attributes,  which  has  only  con- 
•ented  to  be  sued  In  its  own  courts.  Porto 
Rico  T.  fiosaly  y  Castillo,  227  U.  8.  270. 
67  X.  ed.  507,  33  Sup.  Ct.  Rep.  362.  What- 
ever might  have  been  the  merit  of  this  posi- 
tidn  if  promptly  asserted  and  adhered  to, 
«re  hold,  following  the  principles  announced 
in  Porto  Rico  v.  Ramos,  232  U.  S,  627,  SB 
L.  ed.  763,  34  Sup.  Ct.  Rep.  401,  that  having 
solemnly  appeared  and  taken  the  other  steps 
above  narrated,  plaintifF  in  error  could  not 
thereafter  deny  the  court's  Jurisdiction. 
Gunter  v.  Atlantic  Coast  Line  R.  Co.  200 
U.  8.  273,  284,  50  L.  ed.  477,  483,  2«  Sup. 
Ct.  Bep.  iSi.    The  judgment  is  affirmed. 


PACIFIC  EXPRESS  COMPANY. 

(See  8.  C.  Reporter's  ed.  48-55.) 

Commerce  —  slate  regnlftUan  —  iDtoxl* 

CAtlnc  llqaors  —  O.  O.  D.  shlpmenta. 

1.  As   applied   to    intersUU   C.   O.   D. 


shipments  a  prohibitive  state  license  tax 
upon  each  place  of  bnsineaa  or  agency  o( 
every  express  company  where  intoxicating 
liquors  are  delivered  and  the  price  eoliecM 
on  C.  0.  D.  shipmenta  imposes  a  direct 
burden  upon  interstate  commeroe,  contran 
to  U.  S.  Const,  art.  1,  |  B,  and  one  which 
Is  not  permitted  by  the  Wilson  act  of 
August  8.  1890  (26  SUt.  at  L.  313,  chap. 
728,  Comp.  Stat.  1B13,  |  8738),  subjecting 
to  state  control  interstate  shipmenta  of  in- 
toxicating liquors  upon  arrival  in  the  state 
[Por  otber  cases,  see  Coramerce,  IT.  b,  3,  la 
Diitest    Bup.    Ci.   1008.)  ^ 

Statutea  —  retroMoUve  operation  —  In- 
toxicating  llqoora  —  O.   O.   D.   ataip- 

2.  Retroactive  operation  may  not  in. 
directly  be  given  to  U.  S.  Penal  Code,  |  23B, 
prohibiting  C.  O.  D.  shipments  of  intoxicat- 
ing liquors,  by  using  that  statute  as  an  In. 
strumcnt  of  Interpretation  from  which  to 
deduce  the  conclusion  that,  contrarr  to  th* 
previous  decisions  of  the  Federal  Suprnne 
Court,  the  power  of  a  state  to  prohibit 
shipments  of  intoxicating  liquors  under  C. 
0.  D.  contracts  existed  before  the  enactment 
of  such  statute. 

[For  other  cases,  see  SUtutw,  II.  v,  tn  Diaest 

Sup.   Ct.    1808.] 
Trover  —  conversion   by  exprcM  com- 

panr  —  refnaal  to  carry  oat  C.  O.  D. 

shipments. 

3.  The  wrongful  refusal  of  an  express 
company  to  carry  out  its  C.  0.  D.  shipment 
contacts  will  support,  In  Mlssonri,  an  ac- 
tion in  conversion  by  the  consignor  for  the 
value  of  the  shipments. 

cases,  see  Trover,   In   Dlceat  Sop. 


Ct   1908-1 


INo.  249.] 


IK  ERROR  to  the  Supreme  Court  of  the 
State  of  Missouri  to  review  a  judgment 
which  reversed  a  judgment  of  the  Circuit 


crives  the  same  to  he  unjust  or  illegal,  or 
against  any   statute,   pay   the   same   under 

Sec.  2.  Be  it  further  enacted,  that  upon 
hia  malciuK  such  payment,  the  tJBcer  or  col- 
lector shall  pay  such  revenue  into  the  treas- 
ury of  Porto  Rico,  giving  notice  at  the  time 
of  the  payment  t^  the  treasurer,  that  the 
•ame  was  paid  under   protest. 

Sec.  3.  Be  it  further  enacted,  that  the 
party  paying  said  revenue  under  protest, 
mav,  at  any  time  within  thirtv  days  after 
making  said  payment,  and  not  longer  tliere- 
after,  sue  the  said  treasurer  for  said  sum, 
tor  the  recovery  thereof  in  the  court  having 
competent  jurisdiction  thereto;  and  If  it 
be  determined  that  the  same  was  wrongfully 
collected  as  not  being  due  from  said  party 
to  the  government  for  any  reason  going  to 
the  meritSL  of  the  same,  the  court  trying 
the  ease  may  certify  of  record  that  the  same 
was  wTongnilly  paid  and  ought  to  be  re- 
Awdei,  and  theimpon  the  treasurer  shall 
sao 


repay   the  sum,   which   payment   ahall   b* 
made  in  preference  to  oUier  claims  on  the 

Sec.  4.  Bo  it  further  enacted  that  there 
shall  be  no  other  remedy  in  any  case  of  the 
collection  of  revenue  or  attempt  to  collect 
revenue  illegally. 

Sec.  e.  Be  it  further  enacted  that  no  writ 
[or  the  prevention  of  the  collection  of  any 
revenue  claimed,  or  to  hinder  and  delay 
the  collection  of  the  same  shall  in  any  wise 
issue,  either  supersedeas,  prohibition,  or  any 
other  writ  or  process  whatever;   but  In  aO 


wrongfully  or  illegally  collected,  the  remst^ 
for  said  party  shall  he  as  ahora  prorids^ 
and  none  other. 

Sec.  6.     .     .     . 

Sec.  7.    .    .    .     [Rev.  Stat.  *  Oodea  Ull, 
p.  064,  note.] 

141  V.  S. 


iMM.                               BOBBNBEKOKB  T.  PACUIO  KZP.  00. 

Court  g<  jHkMB  Oonnt;,  la  that  ■!»(«,  In  Bowman  t.  Ohieafo  *  N.  W.  B.  Co.  lU 

tkTor  of  plaintiff  In  an  aetloo  of  sonvenloa.  U.  B.  601,  filO,  31  L.  ed:  714,  71S,  1  Intara. 

Bevaned  and  remanded  for  furthor  proceed-  Com.  Rep.  S23,  8  Sup.  Ct.  Rep.  6B9,  lIMSt 

■"«*■  Ijeiaj  T.  Hardin,   13S  U.  8.   100,   121.  U 

Bee  tame  caM  below,  258  Ho.  97.  1«T  S.  L.  ed.  128,  136,  3  latera.  Com.  Rep.  36,  10 

W.  42».  Sup.  Ct  Rep.  681;  Be  Rabrer,  supra;  Wd- 

The  facta  are  BUt«d  in  the  opinion.  ton  t.  Mluouri,  Bl  U.  8.  27S,  283,  23  L. 

ileun.  J.  J.  Tlueyard  and  A.  F.  Smllh  •**■  '*''•  2^"'  Adama  E^.  Co.  t.  Kentuekj, 

-rgued  the  cause,  and,  with  Mr.  Frank  F.  *"'  "■  8-.12».  Bl  I*  ed.  987,  27  Sup.  Ct 

Rowelle,  llled  a  brief  for  pUintiiT  in  error:  ^P"  **!  Ameriean  Exp.  Co.  ».  Iowa,  IM 

Liquor  la  an  article  of  commerce  and  U  "■  ^-  ^*^'  *'  ^-  *^  *^^'  "  ^"P'  ^t-  ^P- 

«ntitlod  to  th*  same  protection  under  the  '**'  CaldweL  t.  North  Carolina,  187  U.  8. 

commerce  cUuw  of  the  Federal  Oon.titu-  ^^^'  *T  ^  •^  33".  M  8up.  Ot  Rep.  220; 

tion  as  any  other  commodity  In  the  abettioe  Norfolk  *  W.  R.  Co.  y.  Sima,  191  U.  8. 

ol  an  act  of  Congreaa  to  the  contrary.  **^-  *^  L.  ei  2M,  «  Sup.  Ct.  Bep.  181) 

Leiiy   T.   Hardin,   138   U.   8.   100,    34   L.  *'*"'  ''■  Penniylrania,  238  U.  8.  62.  6B  L. 

«d.  128.  3  Intera.  Com.  Bep.  36,  10  Sup.  Ct  "^  ^^°^'  '^  ^"P-  ^  ^-  '^'■ 

Bep.  681  i   Re  Bahrer,   140  U.   8.   646,   36  Liquor  ahlpped  from  one  atate,  where  tha 

L.  ed.  572,  11   Sup.  Ct  Rep.  866;   Louii-  order  ia  accepted,  to  another  eUte,  C.  O.  D, 

ville  4  N.  B.  Co.  v.  F.  W.   Cook   Brewing  l«  •  •»!"  n^*  la  *>>•  •t*ta  from  which  tha 

Co.  223  U.  S.  70,  66  L.  ed.  386,  32  Sup.  Ct  «<»*•   "to  shipped,   and   not   the  aUt«   In 

Bep.  180.  which  goods  are  reoaiTed. 

The  Wilaon  act  of  Auguit  1800,  which  American   Exp.  Co.  t.  Iowa,   196  U.  8. 

waa  Uie  only  Federal  law  at  the  Ume  the  183.  *"  L.  ed.  417.  28  Snp.  Ot.  Rep.  182  i 

cauie  of  action   in   quvtion   arose  tending  *orfoft  *  W.  R.  Co.  t.  Bima,  181  U.  S.  441. 

to  reguUte  interstate  commerce  In   liquor,  48  L.  ed.  264,  24  Sup.  Ct  Rep.  161;   Stata 


goee  no  further  than  to  subject  an  inter- 
atate  ahlpmeDt  of  liquor  to  state  regulation 
after  it  haa  been  delivered  to  the  con- 
iignee.^nd  while  still  in  the  original  pack- 
age.    The  effect  of  thia  act  waa  merely  to 


Roaenberger,  212  Uo,  648,  SO  TaR.A. 
(N.S.)  884.  126  Am.  St  Bep.  680,  111  & 
W.  600. 

C.  0.  D.  oontraota  for  the  shipment  of 
liquora  from  one  state  to   another   purni- 


do  away  with  the  original -package  doctriue  "**    ^    •*"*   *^*    orden    aooepted    in    the 

and  the  righta  incident  thereto.  '****  "rtere  tlie  liquor  1«  delivered  to  the 

Rhodes  v.   Iowa,  170   U.  8.  412,  427,  42  <»"■«"■    "«   witlln    tha    protection    of    tha 

L.    ed.    1088,   1096,   IB  Sup.   Ct  Bep.    684;  wnunerce  clauae  of  the  Federal   Conrtitu- 

LouiBTille  A  N.  R.  Co.  v.  F.  W,  Cook  Brew-  ''<"•    independently    of    whether    such    oon- 

ing  Co.  aupra.  tracts  are  imposed  on  a  carrier  as  a  com- 

The  contracU  whereby  tlie  defendant  un-  mon-Uw  duty  or  are  voluntarily  assumed, 

dertook   to   carry   the   liqnor   in   qneatlon  Heymann  T.  Southern  B.  Co.  203  U.  a 

from    Kanaaa    (Sty,    Missouri,    to   variona  2'*'  61  L-  ed.  178,  27  Sup.  Ct.  Rep.  104,  7 

points  in  the  atate  of  Texaa,  and  to  eoUect  A>^-   O"-   1130;   Doiier  v.  Alabama,  218 

the  purchase  price  tiu-rtot  from  the  con-  "■  S-  1".  "  ^-  *d.  066.  28  L,H.A.(N.8.) 

•igneea.  were  in   reference  to  and   formed  2".   »»   Sup.   Ct   Rep.   64B;    CaldweU   ' 


nn    integral    part   of   interatate 


North  Carolina,  18T  U.  8,  822,  47   U  ed. 


transactions,  and  the  sUte  ot  Texas  was  336,  23  Sup.  Ct  Rep.  220. 
without  legal  power  to  impose  burdena  on       The  Texas  act,  being  unconstitutional  in 

or    to    prevent    the    performance    of    eneh  lo  far  as  it  applied  to  interstate  commerce, 

contract*.  afforded    the    defendant   no    excuse   (or    ita 


NoTK. — On  atate  regulation  of  interstate 
«T  foreign  commerce — see  notea  to  Norfolk 
A  W.  R.  Co,  y.  Com.  13  LJt.A.  107;  and 
Qlouceater  Fen-y  Co.  v.  Pennsylvania,  29 
L.  ed.  U.  8.  168. 

As  to  state  licenses  or  taxes,  generally, 
aa  afTectlng  commerce — see  notes  to  Roth- 
ermel  v.  Meyerle,  9  L.RA.  366;  American 
Fertilising  Co.  v.  Board  of  Agriculture.  11 
LMJl.  170;  Gibbons  v.  Of^eu,  6  L.  ed.  U.  8. 
23;  Brown  v.  Maryland,  6  L.  ed.  U.  8.  678; 
Rstterman  v.  WeaUm  U.  Teleg.  Co.  32  L. 
ed.  U.  S.  229;  Harmon  v.  Chicago,  37  L.  ed. 
U.  8.  217;  aeveland,  C.  &  &  St  L.  R.  Co. 
T.  Backus,  38  L.  ed.  U.  S.  1041;  Pa«tal 
Teleg.  Cable  Co.  T.  Adams,  39  L.  ad.  U.  8. 
40  Ih  ed.  t 


311 ;  and  Pittsburg  *  8.  Coal  Co,  v.  Batea, 
30  L.  ed.  U.  S.  638. 

As  to  retroactive  operation  ot  statutes, 
generally, — s^  notea  to  Otoe  Co<uity  v, 
Baldwin,  28  L.  ed.  U.  S.  331;  and  BarnlU 
V.  Beverly,  41  L.  ed,  U.  S.  Q4. 

On  the  action  of  public  authoritlee  Under 

Slice  power  as  defense  to  carrier  for  de- 
/  or  nondelivery  of  freight— see  notes  to 
Alabama  ft  V.  R.  Co.  t.  Tirelli  Bros.  21 
LJLA.(N.S.)  731;  and  Southern  Exp.  Co.  T. 
SotiUe  Bros.  28  L.BA.(N.S.)   ISO. 

On  refuaal  of  carrier  to  deliver  gooda  aa 
conversion — see  note  to  CDonnell  t.  Cana- 
dian P.  B.  CO.  60  L.B.A,(HJ.)  1178. 

•  t«1. 


SUFREUE  CDUKX  OP  THE  UNITED  BTATER 


fallur*  to  p«rfonn  iU  eontracta  to  ahip  and 

Hopkina  t.  CI^ubod  Agri.  College,  221 
U.  S.  636.  644,  S4S,  65  L.  ed.  890,  £04,  805, 
35  L.R.A.(N.S.)  243,  31  Sup.  Ct.  Rep.  654; 
Willianw  y.  AtchiBoa,  T.  A  S.  F.  R.  Co. 
233  Mo.  681,  136  S.  W.  304;  Louisvilla  t 
N.  H.  Co.  Y,  F.  W.  Cook  Brewing  Co.  223 
U.  S.  70,  OS  L.  td.  365,  32  Sup.  Ct.  Rep.  18B; 
BowmaD  t.  Chicago  t  N.  W.  H.  Co.  125 
U.  8.  465,  31  L.  ed.  700,  1  Inters.  Com. 
Rep.  823,  B  Sup.  Ct.  Rep.  089,  1002. 

Mr.  I.  N.  WatMD  argued  the  cause,  and, 
with  Mr.  J.  L.  Minnia,  Sled  a  brief  lor  de- 
fendant in  error: 

While  Intoikating  liquort  are  rec<^- 
Dlced  aa  a  legitimate  subject  of  Interatate 
oommerce,  yet  euch  liquors  do  not  have 
tiie  satnfl  rights  which  attach  to  Uie  ship- 
ments of  other  cominoditiea. 

Crowlej  T.  Christensen,  137  U.  8.  91,  34 
L.  ed.  623,  11  Sup.  Ct  Rep.  13;  Delama- 
ter  T.  South  DakoU,  SOS  U.  S,  93,  61  L. 
ed.  TZ4,  27  Sup.  Ct.  Rep.  447,  10  Ann.  Cae. 
733;  Nutting  t.  Maasafhusetta,  183  U.  S. 
6S3,  46  L.  ed.  324,  22  Sup.  Ct.  R«p.  23B, 
176  Haai.  166,  78  Am.  St.  Rep.  483,  S6  N. 
E.  895. 

Tliere  ia  no  common-law  duty  devol*ing 
upon  a  common  carrier  to  act  as  a  collect- 
ing agent  for  the  consignor. 

HutchinEOQ,  Carr.  3d  ed.  gg  728,  728,  729; 
United  SUtce  Ezp.  Co.  t.  Keefer,  69  Ind. 
263;  4  Elliott,  Railroads,  g  15,10;  12  Am. 
k  Eng.  £dc.  Law,  2d  ed.  p.  533;  Cox  v. 
Columbus  ft  W.  R.  Co.  91  Ala.  392,  8  So. 
824;  Adam*  Exp,  Co^  t.  Com.  124  Ky.  160, 
6  L.RA.(K.8.)  630.  92  8.  W.  932;  Hoore, 
Carr.  |  31;  Hale,  Bailm.  A  Carr.  p.  461; 
HcNichol  T.  Factfle  Exp.  Co.  12  Mo.  App. 
401;  Fowler  CommiseioD  Ca  v.  Chicago, 
R.  I.  ft  F.  H.  Co.  98  Mo.  App.  210,  71  S.  W. 
1077;  Danciger  v.  Fa^flc  Exp,  Co.  164  Fed. 
3T9. 

The  eeaential  elemmta  of  Interstate  com- 
merce, which  are  under  the  exclusive  con- 
trol of  Congress,  are  into-course  and  traf< 
flc.  including  in  these  terms  navigation  and 
the  transportation  of  persona  and  property, 
and  the  purchase,  sale,  and  exchange  of 
commodities. 

Oooley  V.  Port  Wardens,  12  How.  290, 
13  L.  ed.  906;  Rhodes  v.  Iowa,  170  U.  8. 
412,  42  L.  ed.  1088,  18  Sup.  Ct,  Rep.  664; 
Adams  Exp.  Co.  v.  Kentucky,  206  U.  S.  129, 
61  L.  ed.  087,  87  Sup.  Ct.  Bep.  606;'  Li- 
cense Cases,  6  How.  504-509,  12  L.  ed. 
256-258;  Hannibal  ft  St.  J.  R.  Co.  t.  Hu- 
sen,  96  U.  S.  465,  24  L.  ed.  527 ;  Wabash. 
St.  L.  ft  P.  R  Co.  V.  Illinois,  118  U.  S. 
557,  672,  30  L.  ed.  244,  249,  1  Inters.  Com. 
Rep.  31,  7  Sup.  Ct.  Rep.  4;  Bowman  v. 
Cbieago  t  N.  W.  B.  Co.  126  U.  S.  466, 
SS2 


81  U  ed.  703,  1  Inters.  Com.  Rep.  S23,  S 
Sup.  Ct  Rep.  689,  1062;  Hejman  y.  South- 
em  R.  Co.  203  U.  S.  277,  61  L.  ed.  181,  IT 
Sup.  Ct.  Rep.  104,  T  Ann.  Cas.  1130. 

Taking  the  act  of  Congresa  of  Mardi 
4tb,  1909,  and  the  Interstate  commerce  act 
and  the  Wilson  act,  as  those  acts  are 
construed  by  this  court,  it  is  clear  that 
the  legitimate  transportation  of  intoxicat- 
ing liquors  protected  by  those  acts  is  the 
transportation  and  delivery  of  such  com- 
modity to  the  consignee;  and  that  the  col- 
leeticoi  of  the  purchase  price  was  not  a 
part  of  the  transportation  of  such  CMn- 
modity.  If  we  are  right  in  this  conten- 
tion, then  the  regulation  or  prohibition  of 
such  act  did  not  belong  to  Congress  ex- 
clusively, but,  in  the  absence  of  congrea- 
aional  legislation  on  that  subject,  the  atates 
were  free  to  act  until  Congress  assumed 
control  over  such  matter. 

Northern  F.  R.  Co.  v.  Waahington,  222 
U.  8.  370,  66  L.  ed.  237,  32  Sup.  Ct  Bep. 
ISO. 

In  all  the  cases  cited  by  the  plaintiff  in 
error,  the  statutes  of  the  state  proltibitod 
the  sale  and  transportation  of  liquor  into 
the  state,  and  the  statutes  did  not  pretend 
to  regulate  the  conduct  of  any  agent  act- 
ing for  the  consignor  within  the  state. 

Rhodes  t.  Iowa,  170  U.  S.  412,  4S  L.  ed. 
1086,  18  Sup.  Ct.  Rep.  664;  American  Exp. 
Co.  V.  Iowa,  106  U.  S.  133,  49  L.  ed.  417, 
25  Sup.  Ct  Rep.  182;  Adams  Exp.  Co.  v. 
Kentucky.  206  U.  8.  129,  61  L.  ed.  987.  27 
Sup.  Ct.  Rep.  606. 

This  record  shows  that  the  system  naed 
In  telling  intoxicating  liquors  by  the  plain- 
tiff in  error  herein  was  a  plain  evasion  of 
both  the  laws  of  the  state  of  Texas  and 
the  state  of  Missouri. 

Rich  Hill  V.  Coleman,  63  Mo.  App.  SU; 
State  V,  Heard,  64  Mo.  App.  334;  State  t. 
Quinn.  170  Mo.  176,  70  S.  W.  1117;  SUte 
V.  Hughes,  24  Mo.  147;  Tanner  t.  Bugg,  74 
Mo.  App.  196;  St.  Louis  *.  Tielkem^er, 
223  Mo.  143,  126  S.  W.  1123. 

Mr.  Chief  Juatlee  White  delivered  the 
opinion  of  the  «ourt: 

On  the  taking  effect  in  Texas  on  the  12th 
day  of  February,  lOOT,  of  a  law  impoaiag 
a  state  license  tax  of  tS.OOO  annually  on 
each  place  of  business  or  agency  of  every 
express  company  where  Intoxicating  liquors 
were  delivered  and  the  price  collected  » 
C.  0,  D.  shipments,  and  by  which  law  one 
half  of  the  amount  of  the  state  license  ws* 
in  addition  authoriced  to  be  imposed  by 
every  county  or  municipality,  the  ExprtM 
Company,  the  defendant  in  error,  discon- 
tinued at  all  Its  agencies  In  Texas  all  suA 
business.  Aa  a  reault  the  company  aent 
back  to  Eansaa  City,  Missouri,  the  pad- 
141  C.  B. 


1016. 


BOSENBERGER  ▼.  PACIFIC  EXP.  CO. 


40-51 


ftges  of  intozieating  liquor  which  it  had  re- 
ceived under  C.  O.  D.  shipments  made  to 
▼arions  places  in  Texas  from  Kansas  City 
by  Rosenberger,  the  plaintiff  in  error,  and 
tendered  them  to  him,  conditioned  on  his 
payment  ot  the  return  carriage  charges. 
Roeenberger  refused  to  accept  the  oflTer,  and 
brought  this  suit  to  recover  the  value  of  the 
merchandise,  on  the  ground  that  the  failure 
to  carry  out  the  shipmoits  was  a  conver- 
sion. The  trial  court,  holding  the  Texas 
act  was  repugnant  to  the  commerce  clause 
of  the  Constitution  of  the  United  States, 
and  afforded  no  justification  to  the  Express 
Company  for  refusing  to  carry  out  the  ship- 
ments, awarded  the  relief  sought.  And  the 
object  of  this  writ  of  error  is  to  obtain  a 
reversal  of  a  final  judgment  of  the  court 
below,  reversing  [50 J  the  trial  court,  and 
rejecting  the  claim  on  the  ground  that  the 
Texas  license  law  was  not  repugnant  to  the 
commerce  clause,  and  afforded  ample  au- 
thority to  the  Express  Company  for  refus- 
ing to  complete  the  interstate  shipments  in 
question.    258  Mo.  97,  167  S.  W.  429. 

Passing  minor  contentions  whose  want  of 
merit  will  bs  hereafter  d^nonstrated,  it  is 
clear  that  the  issue  is  this:  Was  the  state 
license  law,  if  applied  to  C.  O.  D.  interstate 
commerce  shipments,  repugnant  to  the  com- 
merce clause  of  the  Constitution?  It  is 
certain  that  this  question,  in  view  of  the 
date  of  the  law  and  of  the  shipments  in- 
volved, must  be  determined  in  the  light  of 
the  operation  of  the  commerce  clause  as 
affected  by  the  power  conferred  upon  the 
states  by  what  is  usually  known  as  the 
Wilson  law  (act  of  August  8,  1890,  chap. 
728,  26  Stat  at  L.  813,  Comp.  Stat.  1913, 
I  8738),. and  wholly  unaffected  by  S  239 
of  the  Penal  Code  enacted  by  Congress 
March  4,  1909  [35  SUt.  at  L.  1136,  chap. 
321,  Comp.  SUt  1013,  |  10,409]  prohibit- 
ing the  shipment  of  intoxicating  liquors 
under  C.  O.  D.  contracts,  and  also  without 
reference  to  the  act  of  Congress  known  as 
the  Webb-Kenyon  law  of  March  1,  1913 
(chap.  90,  37  Stat,  at  L.  699,  Comp.  Stat. 
1913,  §8739). 

Thus  limited,  as  it  is  not  controverted 
and  indeed  is  indisputable  that  the  pro- 
visions of  the  statute  placed  a  direct  burden 
on  the  shipments  with  which  it  dealt,  and 
in  fact  were  prohibitive  of  such  shipments, 
it  follows  that  error  was  committed  in 
holding  that  the  statute  was  not  repugnant 
to  the  Constitution  of  the  United  States  in 
so  far  as  it  applied  to  interstate  C.  0.  D. 
shipments,  for  the  following  reasons:  (a) 
Because  it  is  settled  from  the  beginning, 
and  too  elementary  to  require  anything  but 
statement,  that,  speaking  generally,  the 
states  are  without  power  to  directly  burden 
interstate  commerce,  and  that  commodities 
60  li.  ed. 


moving  in  such  commerce  only  become  sub- 
ject to  the  control  of  the  states  or  to  the 
power  on  their  part  to  directly  burden  after 
the  termination  of  the  interstate  movement; 
that  is,  after  the  arrival  and  delivery  of 
the  commodities  and  their  sale  in  the  origi- 
nal packages;  and  that  this  rule  is  [51]  as 
applicable  to  the  movement  of  intoxicating 
liquors  as  to  any  other  commodities,  (b) 
Because  the  Wilson  act  only  modifier  tkese 
controlling  rules  by  causing  interstate  com- 
merce shipments  of  intoxicating  liquors  to 
come  under  state  control  at  an  earlier  date 
than  they  otherwise  would;  that  is,  after 
delivery,  but  before  sale  in  the  original 
packages,  (c)  Because  the  power  in  inter- 
state commerce  shipments  to  make  C.  O.  D. 
agreements,  that  is,  agreements  on  delivery 
of  the  commodity  shipped  to  collect  and  re- 
mit the  price,  is  incidental  to  the  right  to 
make  sudi  shipments,  and  the  commodities 
when  so  shipped  do  not  come  under  the  au- 
thority of  Uie  state  to  which  the  com- 
modities are  shipped  under  such  agreements 
untU  arrival  and  delivery,  and  therefore 
any  attempt  on  the  part  of  the  state  to 
directly  burden  or  prohibit  such  contracts, 
or  prevent  the  fulfilment  of  the  same,  neces- 
sarily comes  within  the  general  rule  and  is 
repugnant  to  the  institution  of  the  United 
States. 

These  propositions  in  substance  have  been 
by  necessary  implication  or  by  direct  de- 
cision so  authoritatively  and  repeatedly  de- 
termined, as  shown  by  the  cases  cited  in 
the  margin,^  that  there  is  no  necessity  for 
going  further.  But  in  view  of  the  fact  that 
the  court  below  held  the  statute  to  be  not 
r^ugnant  to  the  commerce  clause,  not  be- 
cause it  overlooked  the  rulings  of  this  court 
referred  to,  but  because  it  considered  them 
distinguishable  or  inapposite  to  this  case 
for  reasons  deemed  by  it  to  be  conclusive, 
thtfe  being  some  difference  of  opinion  on 

iLeisy  v.  Hardin,  135  U.  S.  100,  34  L. 
ed.  128,  3  Inters.  Com.  Rep.  36,  10  Sup. 
Ct.  Rep.  681;  Re  Rahrer,  140  U.  S.  545,  35 
L.  ed.  572,  11  Sup.  Ct  Rep.  865;  Rhodes 
V.  Iowa,  170  U.  S.  412,  42  L.  ed.  1088,  18 
Sup.  Ct.  Rep.  664;  Vance  v.  W.  A.  Vander- 
cook  Co.  170  U.  S.  438,  42  L.  ed.  llOO,  18 
Sup.  Ct.  Rep.  674;  Heyman  v.  Southern  R. 
Ck>.  203  U.  S.  270,  51  L.  ed.  178,  27  Sup. 
Ct.  Rep.  104,  7  Ann.  Cas.  1130;  Adams 
Exp  Co.  V.  Kentucky,  214  U.  S.  218,  63  L. 
ed.  972,  29  Sup.  Ct  Rep.  633;  Louisville 
&  N.  R.  Co.  V.  F.  W.  Cook  Brewing  Co. 
223  U.  S.  70,  56  L.  ed.  366,  32  Sup.  Ct.  Rep. 
180;  Kirmeyer  v.  Kansas,  236  U.  S.  568, 
59  L.  ed.  721,  35  Sup.  Ct  Rep.  419;  Rossi 
V.  Pennsylvania,  238  U.  S.  62,  59  L.  ed. 
1201,  35  Sup.  Ct.  Rep.  677;  American  Exp. 
Co.  V.  Iowa,  196  U.  S.  133,  49  L.  ed.  417, 
26  Sup.  Ct.  Rep.  182;  Adams  Exp.  Co.  v. 
Kentucky,  206  U.  S.  129,  51  L.  ed.  987,  27 
Sup.  Ct  Rep.  606. 


51-64 


SUPREME  COURT  OF  THE  UNITED  STATEa 


Oor.  TkftK, 


the  subject  in  the  court  below,  we  briefly 
refer  to  those  reasons. 

[52]  It  was  said  that  the  shipment  of 
oommodities  contains  two  elements ;  one,  the 
obligation  arising  from  the  duty  of  the  car- 
rier to  receive  and  carry  without  express 
contract;  and  the  other,  such  obligation  as 
arises  from  contracts  made  concerning  the 
shipment,  not  embraced  in  the  duty  which 
rested  by  law  upon  the  carrier  in  the  ab- 
sence of  contract,  the  latter  being  illustrat- 
ed by  C.  O.  D.  contracts.  These  two  classes 
of  obligations,  it  was  pointed  out,  arising 
from  different  sources,  were  controlled  by  a 
consideration  of  the  source  whence  they 
sprang;  the  one,  the  duty  independent  of 
contract,  being  commerce,  and  the  other,  the 
duty  depending  upon  express  contract,  in  a 
sense  independent  of  commerce,  being  gov- 
emed  by  the  law  controlling  contracts;  that 
is  to  say,  the  one  being  controlled  by  the 
commerce  clause  and  the  other  by  the  law 
of  the  state.  And  from  these  generalizations 
it  was  concluded  that  however  complete  and 
efficacious  was  the  control  of  the  Ck>nstitu- 
tion  of  the  United  States  over  the  obliga- 
tion resulting  from  shipments  in  the  proper 
sense,  it  was  clear  that  the  power  of  the 
state  was  complete  over  the  other  class  of 
obligations,  those  arising  from  distinct  con- 
tracts, and  hence  the  act  imposing  the  bur- 
den on  the  contract  to  collect  on  delivery 
did  not  reach  over  into  the  domain  of  ship- 
ment, was  independent  of  the  same,  and 
therefore  was  not  repugnant  to  the  com- 
merce clause.  But  we  think  it  is  a  suffi- 
cient answer  to  say  that  the  reasoning  re- 
ferred to  rests  upon  a  misconception  of  the 
elementary  notion  of  interstate  commerce 
as  inculcated  and  upheld  from  the  begin- 
ning, and  as  enforced  in  a  line  of  decisions 
of  this  court  beginning  with  the  very  birth 
of  the  Constitution,  and  which  in  its  funda- 
mental aspect  has  undergone  no  change  or 
suffered  no  deviation:  that  is,  that  the  in- 
terstate commerce  which  is  subject  to  the 
control  of  Congress  embraces  the  widest 
freedom,  including,  as  a  matter  of  course, 
the  right  to  make  all  contracts  having  a 
proper  relation  to  the  subject.  Indeed,  it 
must  be  at  once  apparent  that  if  [53]  the 
reasoning  we  are  considering  were  to  be  en- 
tertained, the  plenary  power  of  Congress  to 
legislate  as  to  interstate  commerce  would 
be  at  an  end,  and  the  limitations  preventing 
state  legislation  directly  burdening  inter- 
state commerce  would  no  longer  obtain,  and 
the  freedom  of  interstate  commerce  which 
has  been  enjoyed  by  all  the  states  would 
disappear.  But  to  state  these  general  con- 
•iderations  is  indeed  superfluous,  since  in 
one  of  the  previous  cases  which  we  hare 
cited  (American  Exp.  Co.  v.  Iowa,  196  U. 
B.  233,  143,  144,  49  L.  ed.  417,  422,  423,  26 
S34 


Sup.  Ct.  Rep.  182)  substantially  the  identi- 
cal contention  which  we  have  just  disposed 
of  was  relied  upon  and  its  unsoundness  was 
expressly  pointed  out  and  the  destructive 
consequences  which  would  arise  from  iti 
adoption  stated. 

The  minor  contentions  to  which  we  previ- 
ously referred  are  these: 

1.  That  although  it  be  that  {  239  of  the 
Penal  Code  has  no  retroactive  operation,  it 
should  be  used  as  an  instrument  of  interpre- 
tation from  which  to  deduce  the  conclusion 
that  the  power  of  a  state  to  prohibit  ship- 
ments of  intoxicating  liquors  in  interstate 
commerce  under  C.  O.  D.  contracts  existed 
at  the  time  here  in  question.  But  this  by 
indirection  simply  seeks  to  cause  the  act 
of  Congress  to  retroactively  apply  by  rea- 
soning which,  if  acceded  to,  would  require 

^  it  to  be  said  that  all  the  previous  decisions 
I  of  this  court  dealing  with  the  subject  be- 
!  fore    the    Penal    Code    was    enacted    were 
wrong,  and   that,   in   addition,  the   enact- 
ment of  §  239  was  wholly  unnecessary. 

2.  That  even  although  there  was  a  wrong- 
ful refusal  of  the  Express  Company  to  carry 
out  the  shipments,  its  doing  so  was  a  mere 
violation  of  contract,  giving  a  right  to  sue 
in  damages,  but  not  for  conversion.  We  see 
nothing  in  the  record  to  indicate  that  this 
contention  was  urged  in  the  trial  court  or 
in  the  court  below.  But,  passing  this  con- 
sideration, in  view  of  our  previous  action 
rejecting  a  motion  to  dismiss,  the  question 
is  foreclosed.  But  sgain,  [54]  even  if  this 
be  put  out  of  view,  the  proposition  is  with- 
out merit  under  the  controlling  state  law. 
Rice  y.  Indianapolis  4  St.  L.  R.  Co.  3  Mo. 
App.  27;  Loeffler  v.  Keokuk  Northern  Line 
Packet  Co.  7  Mo.  App.  186;  Dsuiciger  Bros. 
V.  American  Exp.  Co.  172  Mo.  App.  391,  158 
S.  W.  466. 

3.  That  this  case  is  taken  out  of  the 
settled  rule  to  which  we  have  referred,  and 
is  controlled  by  the  ruling  in  Delamater  v. 
South  Dakota,  205  U.  S.  93,  61  L.  ed.  724, 
27  Sup.  Ct.  Rep.  447,  10  Ann.  Cas.  733. 
But  the  proposition  presupposes  that  the 
decision  in  that  case  overrule  the  many  de- 
cisions sustaining  the  rule  without  the 
slightest  indication  of  a  purpose  to  do  so. 
it  proceeds  upon  an  obvious  misconception 
of  the  Delamater  case,  which,  instead  of  dis- 
regarding the  construction  put  upon  the 
Wilson  act  and  the  many  cases  dealing  with 
the  subject,  was,  on  the  contrary,  but  an 
application  in  a  new  form  of  the  additional 
power  which  that  act  gave.  In  other  words, 
the  case  but  held  that,  inasmuch  as  Con* 
gross,  by  virtue  of  its  regulating  authori^, 
had  caused  shipments  of  intoxicating  li- 
quors in  interstate  commerce  to  become  sob- 
ject  to  state  authority  after  arrival  and  be- 
fore sale  in  the  original  padcagei,  the  enr- 

941  V.  8. 


Ifl5. 


MSNASHA  PAPBB  00.  t.  OHIOAGO  4  N.  W.  R.  00. 


64,  66 


tkm  Ij  tb»  etote  of  its  authority  to  prerent 
the  eaiTTliif  on  in  the  itate  of  the  busineet 
of  toUdting  purchases  of  liquor  to  be 
■hipped  from  other  states  was  lawful  aa  a 
mere  ezotion  of  police  power,  not  consti- 
tuting a  direct  burden  upon  interstate  com- 
merce, sinee  such  a  regulation  was  within 
the  scope  of  the  remedial  authoritj  con- 
ferred by  Oongress  by  rirtue  of  the  Wilson 
act. 

And  the  contention  Just  stated  leads  to  « 
reference  to  suggestions  which  we  deem  to 
be  wholly  irrelevant  to  the  issue  for  de- 
cision, made  both  in  the  opinion  of  the  court 
below  and  in  the  argument  at  bar  concern- 
ing possible  abuses  committed  as  the  re- 
sult of  0.  O.  D.  shipments  of  intoxicating 
liquors  into  states  where  the  use  of  such 
liquor  is  prohibited,  such  as  the  unreason- 
able detention  of  such  liquors  before  de- 
livery, the  ultimate  delivery  to  a  [66]  per- 
son who  had  not  ordered  the  same,  the 
transfer  to  others  by  the  ostensible  person 
to  whom  the  shipment  was  seemingly  made, 
ete.,  etc  We  say  irrelevant  suggestions  be- 
cause we  are  considering  here  not  whether  a 
state  statute  enacting  reasonable  regula- 
tions to  prevent  abuses  under  0.  O.  D.  ship- 
ments would  be  a  direct  burden  upon  inter- 
state commerce,  but  are  only  called  upon  to 
determine  whether  a  statute  is  repugnant  to 
the  oommerce  clause  which  expressly  as- 
serts the  power  of  the  state  to  forbid  all 
0.  O.  D.  interstate  commerce  shipments  ot 
intoxicating  liquors  without  reference  to 
ainue  of  any  kind  or  nature  in  the  manner 
in  which  said  contracts  are  carried  out.  . 

It  follows  from  what  we  have  said  that 
the  court  below  erred,  and  that  its  judg- 
ment must  be  reversed  and  the  case  re- 
manded for  further  proceedings  not  incon- 
sistent with  this  opinion. 

And  it  is  so  ordered. 


MEKASHA  PAPER  COMPANY,   Plff.   in 

?rr., 

V. 

CHICAGO  k  NORTHWESTERN  RAIL- 
WAY COMPANY. 

(See  S.  C.  Reporter's  ed.  66-63.) 

Carriers  —  duty  to  furnish  cars  —  em- 
bargo —  remoral  without  notloe  — 
denmrrage. 

1.  A    so-called    embargo    by    which   a 


raihray  company,  at  the  request  of  a  paper 
company  owning  and  operating  a  private 
sidetrack,  refuel  to  furnish  cars  to  ship- 
pers for  interstate  consignments  to  sudi 
paper  company,  which  the  latter,  under 
contracts  with  the  shippers,  was  under  an 
obligation  to  receive,  and  did  in  fact  re- 
ceive, violates  the  provisions  of  the  Hep- 
bum  act  of  June  20,  1906  (34  Stat,  at  L 
684,  chap.  3691,  Comp.  Stat.  1913,  g  8668), 
requiring  railway  companies  to  provide  and 
furnish  transportation  to  shippers  upon 
reasonable  request  therefor,  and  such  embar- 
go could  be  removed  by  the  railway  com- 
pany without  notice  to  the  paper  company, 
although  such  action  produced  a  conges- 
tion ox  cars  beyond  the  ability  of  the  paper 
company  to  handle  on  its  sidetrack  in  the 
usual  wav,  and  thus  rendered  the  paper 
company  liable  to  demurrage  charges. 
[For  other  cases,  tee  Carriers.  Ill :  Comineree, 
III.  j,  in  Digest  Sap.  Ct   1908.] 

Carriers  —  demurrage  —  when   side- 
track la  full. 

2.  A  private  switch  track  is  ''full" 
within  the  meaning  of  a  provision  in  the 
carrierfs  rules,  relating  to  car  service  and 
demurrage  charges  that  "the  deliverv  of 
cars  to  private  tracks  shall  be  considered 
to  have  oeen  made  either  when  such  cars 
have  been  placed  on  the  tracks  designated, 
or,  if  such  track  or  tracks  be  full,  when 
the  road  offering  the  cars  would  have  made 
delivery  had  the  condition  of  such  tracks 
permitted,''  where,  although  such  switch 
track  would  hold  more  cars,  there  were 
upon  it  all  the  cars  that  the  consignee,  as 
it  used  the  track,  could  handle  and  unload, 
and  the  consignee  did  not  ask  for  more. 

Error  to  state  court  —  Federal  ques- 
tion —  demurrage. 

3.  A  Federal  question  which  will  sus- 
tain a  writ  of  error  from  the  Federal  Su- 

Sreme  Court  to  a  state  court  was  involved 
1  a  decision  of  the  latter  court  that  a  so- 
called  embargo  by  which  a  railway  com- 
pany, at  the  request  of  a  paper  company 
owninff  and  operating  a  private  sidetrack, 
refusea  to  furnish  cars  to  shippers  for  in- 
terstate consignments  to  such  paper  com- 
Sany  which  the  latter,  under  contracts  with 
lie  shippers,  was  •  under  an  obligation  to 
receive,  and  did  in  fact  receive,  violatea 
the  provision  of  the  Hepburn  act  of  June 
29,  1906  (34  Stat,  at  L.  684,  chap.  3691, 
Comp.  Stat.  1913,  §  8563),  requiring  rail- 
way companies  to  provide  and  furnish 
transportation  to  shippers  upon  reasonable 
request  therefor,  and  that  such  embargo 
could  be  removed  by  the  railway  companv 
without  notice  to  the  paper  company,  al- 
though such  action  produced  a  congestion 
of  cars  beyond  the  abilitr  of  the  paper  com- 
1  pany  to  handle  on  its  sioetrack  in  the  usual 


Kois. — On  duty  of  carrier  to  furnish  cars 
independently  of  contract — see  notes  to 
Houston,  B.  4  W.  T.  R.  Co.  v.  Campbell,  43 
L.R.A.  226;  Di  Giorgio  Importing  &  S.  S. 
Co.  V.  Poinsylvania  R.  Co.  8  L.RJk.(N.S.) 
108;  and  Illinois  C.  R.  Co.  v.  River  &  R. 
Coal  &  Coke  Co.  44  LJLA.(N.S.)  643. 

On  the  general  subject  of  writs  of  error 
••  Zi.  ed. 


from  United  States  Suprenie  Court  to  state 
courts — see  notes  to  Martin  v.  Hunter,  4 
L.  ed.  U.  S.  97;  Hamblin  v.  Western  Land 
Ck>.  37  L.  ed.  U.  S.  267 ;  Re  Buchanan,  39  L. 
ed.  U.  S.  884;  and  Kipley  v.  Illinois,  42  Lw 
ed.  U.  S.  998. 

On  what  adjudications  of  state  courts  can 
be  brought  up  for  review  in  the  ^ 


SUPREME  COURT  OF  THE  UNITED  Bl'ATES. 


Oot.  Tom, 


mr,  uid  thus  rendered  the  pftpra  eomptnj 
liable  to  demurrage  charge 
Ifor  other  eaaes,  see  Appeal 


IN  ERROR  to  the  Supreme  Court  of  the 
State  of  WiKoaiin  to  reriew  a  judgment 
which  afflnned  a  judgment  of  the  Circuit 
Court  of  Wiiuiebago  Coimtj',  in  that  state, 
In  favor  of  a  railway  company  in  an  action 
(or  demurrage.    Affirmed. 

See  lame  caae  lielow,  169  Wis.  SOB,  149 
N.  W.  761. 

The  facta  are  atated  in  the  opinion. 

Hr.  Fcltx  3,  StrerckmnnH  argued  the 
eauae  and  Aled  a  brief  for  plaintiff  in  error: 

Under  the  interatate  oommerce  act  rail- 
road! cannot  collect  for  any  service  not 
apeeificaily  eet  forth  in  the  carrier'a  pub- 
Ilahed  tariffa,  and  tariffs  and  achedulea 
muat  plainly  ahow  what  the  chargea  are 
for. 

Feale,  Peacock  &  Kerr  v.  Central  R.  Co. 
1§  Inters.  Com,  Rep,  33;  Porter  v.  St 
Louie  &  S.  F.  R.  Co.  Ifi  Intera.  Com.  Rep. 
4;  Colorado  Fuel  k  I.  Oo.  v.  Southern  P. 
Co.  S  I.  C.  C.  Rep.  019;  Rames,  Interatate 
Tranaportation,  pp.  T12.  714;  H.  B,  Pitta 
k  Son  V.  St.  Louis  &  S.  F,  R.  Co,  10  Inters. 
Com.  Rep.  690;  Newton  Gum.  Co,  v.  Chi- 
cago, B.  &  Q.  R.  Co.  16  Inters.  Com.  Rep. 
346;  Ohio  Shippera'  Aaso.  v.  Ann  Arbor  R. 
Co,  decision  by  Ohio  R.  Oommission,  Re- 
port 1907,  p.  IS;  Crescent  Coal  &  Min. 
Co.  V.  Baltimore  &  0.  R.  Co.  20  Intera.  Con. 
Rep.  669;  United  SUtes  v.  Denver  ft  R.  G. 
R.  Co.  IS  Inters,  Com.  Rep.  7;  Germain 
Co.  T.  New  Orleana  &  N.  E.  R.  Co.  17  Inters. 
Oom.  Rep.  2B;  Beelonaa  Lumber  Co.  v. 
Louiaiana  R  &  Nav.  Co,  IS  Inters.  Com. 
Rep.  347. 

The  rulea  relied  on  in  this  ease  did  not 
permit  the  charging  of  car  service  until 
the  side  track  waa  filled  to  its  capacity. 

United  States  r.  Denver  &  K  G.  R.  Co. 
18  Inters.  Com.  Rep.  7;  New  Orleans  t  N. 
B.  R,  Co.  T.  George,  B2  Miss.  710,  35  So. 
IBS. 

Derisions  of  the  Interstate  Oommerce 
CMnmisaioD  must  be  followed  by  the  courts. 

United  SUtes  v.  Erie  R.  Co.  209  Fed. 
88B;  Interstate  Commerce  Commission  v. 
Chicago,  R.  1.  &  P.  R.  Co.  218  U.  S.  68,  110. 
M  U  ed.  940,  967,  30  Sup.  Ot.  Rep.  Sol. 


No  delivery  ia  effected  whcM  switchlag 
a  unperformed. 
Crescent  Coal  &  li'va.  Co.  v.  Raltimore  k 
R.  Co.  20  Inters.  Com.  Rep.  689;  New 
oric,  N.  H.  t  H.  R.  Co,  v.  Porter,  220 
;ass.  647,  108  N.  E.  499. 
Lifting  the  ao-calied  emtiargo  made  the 
carrier  responsible  for  the  accumulation  ot 

Scliuiz  Co.  T.  Chicago,  M.  ft  St,  P.  R. 
Co.  20  Inters.  Com.  Rep.  406. 

A  car  service  charge  is,  aa  a  general 
rule,  only  to  be  made  either  after  delivery 
or  after  notice  of  delivery. 

Hutchinson,  Carr.  §§  359,  968;  Elliott, 
Railroads,  g§  200a,  1607. 

Demurrage  rulea  promulgated  by  a  car- 
rier must  be  construed  moat  favorably  to 
the  shipper. 

Staten  Island  Rapid  Transit  R.  Co.  v. 
Marshall,  130  App.  Div.  671,  121  N.  T. 
Supp.  82. 

This  court  has  juriadictlon  to  review  a 
decision  of  the  state  court  construing  a 
Federal  statute,  to  wit,  the  act  to  regu-' 
late  commerce,  that  act  governing  charges 
(or  demurrage  on  interstate  traffic. 

Oimbel  Broa.  v.  Barrett,  815  Fed.  1004; 
Hite  V.  Oantral  R.  Co.  90  C.  C.  A.  32S,  171 
Fed.  370. 

Though  a  state  court  has  no  jurladiction 
to  affect  a  Sled  and  published  rate  for 
demurrage  on  an  interstate  ahipment,  it 
may  in  a  proper  action  find  that  such  rate 
waa  charged  for  a  greater  length  of  time 
than  that  to  which  it  was  truthfully  appli- 
cable, and  give  judgment  for  the  amount  so 
overpaid. 

Chesapeake  ft  0.  R.  Co.  v.  Rogers,  —  W. 
Va.  — ,  84  S,  E.  248. 

Mr.  Ixrais  Qnarlea  argued  the  cause, 
and,  with  Messrs.  Willet  M.  Spooner  and 
George  Lines,  Aied  a  brief  for  defendant  in 

Jurisdiction  is  given  to  this  court  only 
when  the  decision  of  the  atata  court  is 
against  the  right,  privilege,  or  immunity 
set  up  under  the  Constitution  or  laws  of 
the  United  States. 

Murdock  V.  Memphis,  20  Wall  990,  22 
L.  ed.  429;  Sauer  v.  New  York,  206  U.  S, 
6.18.  B46,  61  L.  ed.  1170,  1181,  27  Sup.  Ct 
Rep.  086;  Leathe  v.  Thomas,  207  U.  S.  93. 
98,  62  L.  ed.  IIB,  120,  28  Sup.  (».  Rep,  30. 

The  Federal  questions  do  not  appear  on 
the  record  to  have  been  especially  act  i^ 
and  claimed  in  the  court  below. 

De    Lamar'a    Nevada   Gold    Min.    Co.   v. 


Court  of  the  United  States  by  writ  of  error  |  to  make  a  case  for  a  writ  of  error  from 
to  those  courts— aee  note  to  Apei  Transp.  the  Supreme  Court  of  the  Unit«d  States— 
0>.  T.  Garlwde,  62  L.RA.  613.  I  see  note  to  Mutual  L.  Ins.  Co.  v.  UeOraw, 

On    how    and    when   questions   must   be    03  L.RA.  33. 
nited  Mad  decided  in  a  stata  court  Iv  order  ' 


a«i  V.  ■. 


1911. 


IfXNASHA  PAPEB  CO.  t.  CHICAGO  &  N.  W.  R.  CO. 


NmMU,  177  U.  8.  623,  44  L.  ed.  872,  20  S^p. 
Ct  Rep.  715;  Speed  v.  McCarthy,  181  U.  S. 
289,  45  L.*ed.  855,  21  Sup.  Ct.  Rep.  613. 

An  attempt  to  raise  a  Federal  question 
in  a  petition  for  rehearing  is  too  late. 

BuBhnell  y.  Crooke  Min.  &  Smelting  Co. 
148  U.  S.  690,  37  L.  ed.  61'3,  13  Sup.  Ct. 
Rep.  771;  Pirn  y.  St.  Louis,  165  U.  S.  273, 
41  L.  ed.  714,  17  Sup.  Ot.  Rep.  322;  Capi- 
tal  Nat.  Bank  y.  First  Nat.  Bank,  172  U. 
S.  425,  43  L.  ed.  502,  19  Sup.  Ct.  Rep.  202. 

The  decision  of  the  lower  court  does  not 
dmj  any  right  that  was  asserted  by  plain- 
tiff in  error  under  the  laws  of  the  United 
States.  The  action  is  based  on  a  tariff 
fair  on  its  face,  and  no  attempt  has  been 
made  to  challenge  its  validity,  the  sole 
question  arising  being  its  application  to 
^e  facts  in  the  case. 

Pennsylvania  R.  Co.  y.  Puritan  Coal  Min. 
€o.  237  U.  S.  121,  59  L.  ed.  867,  35  Sup. 
Ot  Rep.  484;  Illinois  C.  R.  Co.  y.  Mul- 
tarry  Hill  Coal  Co.  238  U.  S.  275,  59  L.  ed. 
1806,  35  Sup.  Ct.  Rep.  760. 

The  fact  that  plaintiff  and  defendant 
anake  adverse  claims  under  a  law  of  the 
United  States  does  not  of  itself  present  a 
J'ederal  question. 

De  Lamar's  Nevada  Gold  Min.  Co.  v. 
:Ne8bitt,  177  U.  S.  523,  44  L.  ed.  872,  20 
ISup.  Ct.  Rep.  715. 

That  demurrage  under  facts  similar  to 
"those  in  the  case  at  bar  could  be  assessed 
Mt  destination  has  been  held  by  this  court, 
and  the  assertion  to  the  contrary  is  too 
frivolous  to  support  the  writ  of  error. 

Berwind-White  Coal  Min.  Co.  v.  Chicago 
A  E.  R.  Co.  235  U.  S.  371,  375,  59  L.  ed. 
276,  276,  85  Sup.  Ct  Rep.  131. 

Where  the  highest  court  of  a  state  de- 
eides  a  question  on  a  non-Federal  ground, 
its  decision  will  not  be  reversed,  even  though 
it  may  have  also  decided  erroneously  upon 
a  Federal  question,  but  in  such  a  case  this 
eourt  will  dismiss  the  writ  of  error. 

Eustis  V.  BoUes,  150  U.  S.  361,  370,  87 
L.  ed.  1111,  1113,  14  Sup.  Ct.  Rep.  131; 
Leathe  v.  Thomas,  207  U.  S.  93,  98,  52  L. 
ed.  118,  120,  28  Sup.  Ct  Rep.  30;  Mur- 
•dock  V.  Memphis,  20  Wall.  590,  22  L.  ed. 
429;  Castillo  v.  McConnico,  168  U.  S.  674, 
«79,  42  L.  ed.  622,  18  Sup.  Ct.  Rep.  229. 

The  question  whether  the  demurrage  was 
Assessed  at  destination  is  a  question  of 
fact,  and  this  court  has  no  jurisdiction  to 
go  behind  the  findings  of  fact  approved  by 
the  state  supreme  court. 

Clipper  Min.  Co.  v.  Eli  Min.  &  Land  Co. 
194  U.  S.  220,  48  L.  ed.  944,  24  Sup.  Ct. 
Rep.  632;  Dower  v.  Richards,  151  U.  S.  658, 
472,  38  L.  ed.  305,  310,  14  Sup.  Ct.  Rep. 
462,  17  Mor.  Min.  Rep.  704. 

Cars  are  at  destination  when*  they  are 
waiting  in  the  yard  because  of  the  ini^ili^ 
«•  L.  ed. 


of  the  consignee  to  receive  them  on  its  sid- 
ing. 

New  Orleans  &  N.  E.  R.  Co.  y.  Qeorge, 
82  Miss.  711,  35  So.  198. 

Where  cars  are  consigned  for  loading  on 
a  vessel  for  export,  destination  does  not 
mean  the  pier  at  which  the  vessel  loads, 
but  the  railroad  yards  adjacent  thereto, 
and  demurrage  is  collectable  on  cars  wait- 
ing in  those  yards. 

Hite  v.  Central  R.  Co.  96  C.  C.  A.  326, 
171  Fed.  370. 

A  contract  to  maintain  an  embargo 
against  a  particular  shipper  is  contrary  to 
§  1  of  the  Hepburn  act,  being  the  act  of 
June  30,  1906. 

Chicago,  R.  I.  &  P.  R.  Co.  v.  Hardwick 
Farmers'  Elevator  Co.  226  U.  S.  426,  57 
L.  ed.  284,  46  LJIJ^.(NJ3.)  203,  33  Sup. 
Ct.  Rep.  174;  St.  Louis,  I.  M.  &  S.  R.  Co. 
V.  Edwards,  227  U.  S.  265,  268,  57  L.  ed. 
506,  33  Sup.  Ct  Rep.  262;  Pennsylvania  R. 
Co.  V.  Puritan  Coal  Min.  Co.  237  U.  S.  121, 
183,  59  L.  ed.  867,  873,  35  Sup.  Ct.  Rep. 
484. 

There  can  be  no  lawful  discrimination  in 
demurrage  charges  any  more  than  there  can 
be  in  freight  charges. 

Atchison,  J.  &  S.  F.  R.  Co.  v.  Robinson, 
233  U.  S.  173,  58  L.  ed.  901,  34  Sup.  Ct. 
Rep.  556;  Chicago  &  A.  R.  Co.  v.  Kirby, 
225  U.  S.  155,  56  L.  ed.  1033,  32  Sup.  Ct. 
Rep.  648,  Ann.  Cas.  1914A,  501;  St.  Louis, 
I.  M.  &  S.  R.  Co.  V.  Edwards,  227  U.  S. 
266,  57  L.  ed.  506,  33  Sup.  Ct  Rep.  262; 
Hampton  v.  St  Louis,  I.  M.  ft  S.  R.  Co.  227 
U.  S.  456,  57  L.  ed.  596,  33  Sup.  Ct.  Rep. 
263;  Michie  v.  New  York,  N.  H.  &  H.  R. 
Co.  151  Fed.  694;  United  SUtes  v.  Phila- 
delphia &  R.  R.  Co.  184  Fed.  543;  United 
States  V.  Bethlehem  Steel  Co.  184  Fed.  546; 
United  States  v.  Lehigh  R.  Co.  184  Fed. 
546,  110  C.  C.  A.  513,  188  Fed.  879;  L.  W. 
Blinn  Lumber  Co.  v.  Southern  P.  Co.  18 
Inters.  Com.  Rep.  430;  Armour  Packing 
Co.  V.  United  Stotes,  209  U.  S.  56,  52  L. 
ed.  681,  28  Sup.  Ct.  Rep.  428;  Peale,  Pea- 
cock k  Kerr  v.  Central  R.  Co.  18  Inters. 
Com.  Rep.  34;  Texas  &  P.  R.  Co.  v.  Mugg, 
202  U.  S.  242,  50  L.  ed.  1011,  26  Sup.  Ct. 
Rep.  628. 

Where  a  situation  is  once  shown  to  exist, 
the  presumption  is  that  such  situation  con- 
tinues unless  evidence  be  introduced  to  the 
contrary. 

Laughlin  T.  Chicago  &  N.  W.  R.  Co.  28 
Wis.  204,  9  Am.  Rep.  493;  Wallace  v. 
Pereles,  109  Wis.  316,  53  L.R.A.  644,  83 
Am.  St.  Rep.  898,  85  N.  W.  871;  State  ez 
rel.  Coffey  v.  Chittenden,  112  Wis.  569,  88 
N.  W.  597;  Friend  v.  Tahr,  126  Wis.  291, 
1  LJlJk.(N.S.)  891,  110  Am.  St  Rep.  924, 
104  N.  W.  997. 

A    earrier    may   maintain    an   emhax^e^ 


6^-69 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Ttau, 


wliere  neoessary  to  enable  ft  to  operate  as 
a  oommon  carrier,  but'  cannot  contract  to 
maintain  an  embargo  as  a  special  favor. 

Barnes*  Interstate  Transportation,  S  356; 
Pennsylvania  R.  Ca  v.  Puritan  Coal  Min. 
Co.  237  U.  S.  121,  69  L.  ed.  867,  36  Sup. 
Ct  Rep.  484;  Peet  T.  Chicago  &  K.  W.  R. 
Co.  20  Wis.  694,  91  Am.  Deo.  446;  S.  S. 
Daish  &  Sons  v.  Cleveland,  A.  &  C.  R.  Co. 
9  Inters.  Com.  Rep.  513;  Great  Western  R. 
Co.  V.  Burns,  60  111.  287;  Bussey  v.  Mem- 
phis &  L.  R.  Co.  18  Fed.  330;  Petersen  v. 
Case,  21  Fed.  890;  Houston  &  S.  C.  R.  Co. 
T.  Smith,  68  Tex.  822;  American  Tie  & 
Timber  Co.  v.  Kansas  City  Southern  R.  Co. 
99  C.  C.  A.  44,  175  Fed.  28;  E.  L.  Rogers 
ft  Co.  V.  Philadelphia  &  R.  R.  Co.  12  Inters. 
C<»n.  Rep.  309. 

Mr.  Justice  HcKenna  delivered  the  opin- 
ion of  the  court: 

Action  for  demurrage  on  ears  in  inter- 
state and  intrastate  commerce,  the  grounds 
of  recovery  being  set  forth  in  separate 
counts. 

After  trial  judgment  was  entered  for  the 
railway  company  in  the  sum  of  $1,374.63 
and  $49.60  costs,  being,  in  all,  the  sum  of 
$1,424.23. 

The  judgment  was  affirmed'  by  the  su- 
preme court  of  the  state. 

[57]  There  is  no  dispute  about  the  facts. 
The  railway  company  operates  a  railroad  at 
Menasha,  Wisconsin,  and  elsewhere.  The 
paper  company  is  a  corporation  and  has  a 
place  of  business  adjoining  the  railroad  of 
the  railway  company,  and  operated,  for  the 
purpose  of  unloading  the  cars  delivered  to 
it,  a  sidetrack  which  was  contiguous  to  its 
mill  and  oonnected  with  the  tracks  of  the 
railway  company.  A  delay  of  forty-eight 
hours  was  allowed  for  unloading;  after 
that  time  a  demurrage  charge  of  $1  per 
car  per  day  was  provided  by  the  rules  of 
the  railway  company. 

The  sidetrack  could  accommodate  about 
seven  cars,  but  had  an  actual  capacity,  as 
used  during  the  times  with  which  the  ac- 
tion is  concerned,  of  three  or  four  cars,  or 
possibly  of  five.  As  the  paper  company  used 
the  sidetrack,  more  cars  could  not  have  been 
placed  upon  it  and  unloaded  than  were 
actually  placed  upon  it  and  unloaded,  that 
is,  about  two  or  three  cars  a  day. 

Notice  of  the  arrival  of  each  car  was 
given  and  acknowledged  by  telephone,  and 
the  railway  company  held  the  cars  for  un- 
loading either  at  Menasha  station,  or  after- 
wards at  Snell's  siding,  8  miles  south  of 
Menasha.  The  paper  company  did  not  ask 
for  them  sooner  than  shown  in  the  oom- 
plaint  because  it  oould  not  handle  any  more 
ears  than  it  did.  And  there  was  neither  in- 
mblUtf  nor  refusal  on  the  part  of  the  rail- 

sss 


way  company  to  so  place  the  cars  when  so 
ordered. 

On  March  14,  1908,  the  railway  oompany^ 
at  the  request  of  the  paper  oompany,  noti- 
fied its  agents  in  Wisconsin  and  Michigan 
"until  further  advised"  to  discontinue  to 
furnish  equipment  to  load  with  bolts  (logs 
less  than  8  feet  in  length)  for  the  paper 
company.  This  arrangement,  called  aa 
"embargo,"  did  not  run  out  until  the  cloie 
of  the  year,  and  did  not  by  its  terms  oover 
logs,  nor  was  it  modified  afterwards  to  oover 
logs.  The  embargo  was  raised  at  the  paper 
company's  request  as  to  a  certain  [68] 
number  of  cars,  but  was  applied  again,  and 
bolts  were  shipped  in  violation  thereof  and 
without  any  notice  from  the  railway  com- 
pany to  the  paper  company  of  the  intention 
to  ship  the  same,  resulting  in  the  arrival  of 
oars  fai  great  numbers  on  certain  days. 

From  these  facts  it  was  concluded  by  the 
referee,  to  whom  the  case  was  referred,  the 
trial  court,  and  the  supreme  court  that  the 
paper  company  was  estopped  from  urging 
any  defense  other  than  the  existence  of  the 
embargo,  and  that  the  embargo  was  "il- 
legal, contrary  to  public  policy,  and  void.'' 

Ihe  latter  conclusion  the  court  based  on 
the  Hepburn  act  (34  Stat,  at  L.  684,  chap. 
3591,  Comp.  Stat.  1913,  (  8663)  and  cer- 
tain sections  of  the  Wisconsin  laws. 

The  case  is  in  short  compass.  The  first 
cause  of  action  was  for  intrastate  demur- 
rage on  logs;  the  seoond  cause  of  action 
was  for  interstate  demurrage  on  logs  and 
bolts.  The  so-called  embargo  is  applicable 
only  to  the  bolts.  The  supreme  court  dis- 
posed of  it,  as  we  have  seen,  on  the  ground 
that  it  was  opposed  to  the  policy  of  the 
Federal  and  state  laws,  and  justified  the 
railway  company  in  removing  it.  And  the 
court  found  that  there  was  no  agreement 
that  notice  should  be  given  of  its  removaL 
The  removal  of  the  embargo  undoubtedly 
produced  a  congestion  of  cars  beyond  the 
ability  of  the  paper  company  to  handle  on 
its  sidetrack  in  its  usual  way. 

Two  questions  arise  on  the  embargo: 
(l)Waa  it  a  violation  of  the  Hepburn  actT 
(2)  If  so,  could  the  railway  company  re- 
cover on  account  of  the  congestion  of  cars 
resulting  from  its  removal!  That  aet  re* 
quires  railroad  companies  to  provide  and 
furnish  transportation  to  shippers  upon  rea- 
sonable request  therefor,  and  to  exact  this 
duty  of  the  railway  oompany  was  the  right 
of  the  shippers  of  the  bolts  to  the  paper 
company.  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Hardwick  Farmers'  Elevator  Co.  226  U.  8. 
426,  57  L.  ed.  284,  46  L.R.A.(Na3.)  203» 
38  Sup.  Ct  Rep.  174.  This  is  not  denied 
by  the  paper  company,  nor  did  thai  eoin- 
pany  refuse  [50]  to  receive  tha  eara.  It  is 
aa  inf erenoa  from  thii  that  tha  paper  oamr 

S41  V.  8. 


191fi. 


MSNA8HA  PAPER  CO.  T.  GUIGAGO  &  K.  W.  R.  00. 


60-61 


pany  recognized  it  was  under  contract  obli- 
gations to  the  shippers  to  receive  the  bolts; 
indeed,  the  whole  case  supposes  it.  It  is 
alleged  that  "between  the  3d  of  June,  1908, 
and  the  20th  of  July,  1908,  both  dates  in- 
cluded, plaintiff  [the  railway  company],  as 
the  last  carrier,  carried  and  delivered  in 
interstate  commerce  certain  freight  in  car- 
load" lots  (meaning  the  bolts).  There  is 
no  denial  that  they  were  so  carried.  If  the 
shippers  had  a  right  to  send  the  bolts,  nec- 
essarily the  railway  company  was  under  a 
duty  to  transport  tiiem.  The  contention  of 
the  paper  company,  therefore,  is  tantamount 
to  saying  that  the  railway  company  per- 
formed its  duty  at  the  sacrifice  of  its  rights. 
We  are  unable  to  concur  in  this  view.  The 
railway  company  violated  its  duty  when  it 
agreed  to  the  embargo;  it  returned  to  its 
duty  when  it  removed  the  embargo,  and  the 
rights  which  it  exercised  were  those  which 
it  would  have  had  if  there  had  been  no 
agreement  between  it  and  the  paper  com- 
pany. The  paper  company  had  a  direct 
remedy  if  it  had  been  under  no  obligation 
to  receive  the  bolts;  it  could  have  peremp- 
torily notified  the  shippers  not  to  send 
them,  and  such  notice,  under  the  circum- 
stances, was  an  obvious  course.  It  could 
not  be  protected  from  their  receipt  nor  re- 
lieved from  the  obligation  of  their  receipt 
by  an  agreement  with  the  railway  com- 
pany against  the  duty  which  the  law  de- 
volved up<m  the  latter  company.  This  duty 
it  was  deemed  necessary  to  impose.  It  is 
positive  and  should  be  kept  clear  from 
agreements  with  others  than  the  shippers 
which  in  effect  stipulate  for  its  violation. 
And  this  is  the  basis  of  our  decision.  If 
the  paper  company  was  under  no  obligation 
to  receive  the  bolts  from  the  shippers  of 
them,  it  undoubtedly  had  the  right  to  effec- 
tually notify  the  railway  company  not  to 
receive  them  for  shipment  on  its  account 
except  as  it  should  direct.  But,  as  we  have 
seen,  it  received  the  cars,  and  this,  we  have 
said,  was  a  recognition  of  the  rights  of 
[60J  the  shippers.  The  cars  did  not  arrive 
all  at  once,  and  a  protest  made  at  the  first 
delivery  of  cars  would  have  notified  the  rail- 
way company  that  the  paper  company  was 
under  no  obligations  to  the  shippers.  And 
this  certainly  was  the  more  imiperative,  as 
the  railway  company  was  the  last  carrier, 
the  shipments  originating  on  other  roads. 

It  seems  that  in  the  state  court  the  paper 
company  did  not  contend  so  much  against 
the  raising  of  the  embargo  as  against  the 
failure  to  give  notice  of  it,  with  the  conse- 
queiioe^  it  was  asserted  and  is  asserted  here, 
of  the  "dumping  of  a  large  number  of  cars" 
OB  the  paper  oompany  "and  causing  the  ae- 
eroal  of  the  alleged  demurrage  sued  for." 
But  the  contention  is  baaed  upon  the  kgal- 
••  li.  ed. 


ity  of  the  embargo,  it  being  tantamount,  it 
is  insisted,  to  a  consignee  refusing  freight 
oonsigned  to  it,  or  the  designation  of  those 
from  whom  it  would  receive  freight.  It, 
however,  gave  no  notice  to  its  consignors; 
it  undertook  to  put  the  railway  between  it- 
self and  them,  casting  upon  the  railway 
company  the  hazard  of  the  violation  of  its 
obligations,  it* having  the  ability  to  per- 
form them  and  the  shippers  having  the  right 
to  demand  performance  of  them.  It,  be- 
sides, received  the  cars  without  protest  or 
comment,  and  made  no  provision  for  their 
disposition.  The  finding  is  "that  defend- 
ant did  not  order  cars  placed  for  unload- 
ing sooner  than  as  shown  in  Exhibits  B  and 
G,  attached  to  the  complaint,  because,  prac- 
tically, defendant  could  not  handle  any 
more  cars  than  it  did,  and  hence  did  not 
ask  for  them."  This  finding  applies,  of 
course,  to  the  placing  of  cars  on  the  paper 
company's  sidetrack.  What  other  accommo- 
dation and  arrangements  it  could  have  made 
does  not  appear  from  the  findings,  but  it 
was  testified  that  the  paper  company,  if  the 
cars  had  been  delivered  to  it,  coiUd  have 
obtained  space  for  unloading  them.  The 
company,  however,  made  no  demand  for 
such  delivery  and  the  referee  found  that 
the  railway  company  "notified  the  defend- 
ant [paper  company]  upon  each  arrival 
[61]  by  telephone^  giving  the  car  numbers, 
and,  according  to  custom,  with  only  occa- 
sional exceptions,  the  plaintiff  held  the  cars 
until  defendant  notified  it  to  place  them 
upon  the  sidetrack  for  unloading."  And 
the  referee  also  found  that  there  was  no  de- 
linquency <m  the  part  of  the  railway  com- 
pany nor  insufficiency  of  terminal  facilities. 
The  next  contention  of  the  paper  company 
(it  is  the  first  discussed)  is  that  "under  the 
commerce  act  railroads  cannot  collect  for 
any  service  not  'specifically  set  forth  in  the 
carrier's  published  tariffs,'  and  tariffs  and 
schedules  must  plainly  show  what  the 
charges  are  for."  These  conditions,  it  is 
urged,  were  not  satisfied  by  the  rules  of  the 
company  and  the  circumstances  presented 
in  this  case. 
The  rules  of  the  company  were  as  follows: 
"Rule  4.  Cars  which  are  stopped  in  tran- 
sit or  held  by  orders  of  shippers  or  con- 
signee for  reconsignment  to  points  beyond, 
for  change  of  load,  for  amended  instructions, 
for  change  in  billing,  milling,  shelling, 
cleaning,  etc.,  or  on  account  of  improper, 
unsafe,  or  excessive  loading,  or  for  any 
other  reason  for  which  the  shipper  or  con- 
signee is  responsible,  shall  be  subject  to 
car  service  charges  after  the  expiration  of 
forty-eight  (48)  hours  from  arrival  at  the 
point  of  stoppage,  and  all  car  service  must 
be  collected,  or  billed  as  advances  when 
cart  go  forward. 


61-«4 


SUPREME  COURT  OF  THE  UNITED  STATEa 


Oct.  Tkuf, 


"Rule  6.    .    .    . 

''Section  B.  Cars  for  unloading  shall  be 
considered  placed  when  such  cars  are  held 
awaiting  orders  from  consignors  or  consign- 
ees or  for  the  payment  of  freight  charges 
after  the  notice  mailed  or  otherwise  given, 
or  for  the  surrender  of  bills  of  lading. 

"Section  C.  The  delivery  of  cars  to  pri- 
vate tracks  shall  be  considered  to  have  been 
made,  either  when  such  cars  have  been 
placed  on  the  tracks  designated,  or,  if  such 
track  or  tracks  be  full,  when  the  road  offer- 
ing the  cars  [62]  would  have  made  deliv- 
ery had  the  condition  of  such  tracks  per- 
mitted." 

It  is  somewhat  difficult  to  state  succinct- 
ly the  argument  of  counsel  by  which  he  at- 
tempted to  give  pertinency  to  the  contention 
based  on  these  rules.  We  have  seen  that 
the  sidetrack  of  the  paper  company  could 
accommodate  about  seven  cars,  but,  as  the 
company  used  the  track,  it  could  handle 
only  two  or  three  cars  a  day,  and  hence 
it  did  not  ask  for  more.  The  supreme  court 
of  the  state,  therefore,  decided  that  the  rail- 
way company  had  complied  with  its  obliga- 
tion to  the  paper  company  by  complying 
with  such  demand,  and  was  entitled  to 
charge  for  demurrage.  And,  answering  the 
contention  of  the  paper  company  (repeated 
here),  the  court  said  the  railway  "was  not 
obliged  to  do  a  vain  and  useless  thing  by 
putting  seven  cars  upon  the  track  at  one 
time,  and  thus  prevent  the  practical  hand- 
ling or  unloading  of  any  cars  thereon  by 
appellant  [paper  company],  contrary  to  its 
orders."  [169  Wis.  614,  149  N.  W.  751.] 
The  court,  by  such  holding,  counsel  says, 
decided  that  "the  rules  must  have  a  reason- 
able construction."  And,  further:  "This  is 
the  crux  of  the  decision,  and  it  is  abso- 
lutely in  opposition  to  all  of  the  decisions 
of  the  Interstate  Commerce  Commission  and 
of  the  courts,  and  of  the  spirit  and  intent 
of  the  act  to  regulate  commerce."  In  other 
words,  counsel  insists  that  there  should 
have  been  an  actual  filling  of  the  tracks, 
even  though  this  would  have  prevented  their 
use,  and  have  been  contrary  to  the  direc- 
tions of  the  company,  the  basis  of  the  con- 
tention being  "that  the  rules  must  be  strict- 
ly construed,  and  tliat  there  must  be  *defi- 
nite  tariff  authority'  for  the  charges  made." 
And  the  conclusion,  it  is  asserted,  is  sup- 
ported by  all  authorities,  judicial,  adminis- 
trative, and  legislative.  Rigorously  apply- 
ing the  test  that  the  exact  letter  of  the 
statute  must  be  observed,  counsel  goes  so 
far  as  to  assert  that  there  was  an  impera- 
tive duty  upon  the  railway  company  to  so 
fill  the  tracks,  and  this  without  orders. 
And  contesting  the  proposition,  [63]  de- 
cided by  the  supreme  court  of  the  state,  that 
cBn  arriving  at  Menasha  or  Snell's  siding 
B0O 


had  reached  their  destination,  counsel  says: 
"It  was  the  duty  of  the  railroad  to  keep  the 
sidetrack  filled  to  its  physical  capacity  be- 
fore it  could  hold  the  cars  'at  the  nearest 
available  point.'  To  hold  otherwise  would 
leave  it  dependent  upon  the  judgment  of 
the  officers  of  the  railroad  as  to  how  much 
unloading  the  consignee  could  do,  and  would 
therefore  result  in  discrimination  and  spe- 
cial privileges  prohibited  by  the  act  to  regu- 
late commerce."  And  further:  'The  car- 
rier was  derelict  in  its  duty  when  it  failed 
to  fill  the  sidetrack  to  its  capacity,  as  it 
had  not  completed  its  duty  as  a  common 
carrier  until  it  had  placed  the  cart  on  the 
sidetrack  of  the  plaintiff  in  error." 

We  are  unable  to  concur  in  counsel's  con- 
struction of  the  rules,  or  to  hold  that  it 
has  any  such  formidable  support  as  he  as- 
signs to  it.  And  we  content  oursehrea  with 
the  bare  assertion,  not  even  pausing  to  re- 
view counsel's  chief  reliance,  that  is.  United 
States  V.  Doiver  &  R.  G.  R.  Co.  18  Inters. 
Com.  Rep.  7.  The  case  has  not  the  breadth 
given  to  it.  If  It  had,  we  should  be  unable 
to  follow  it. 

A  motion  has  been  made  to  diamlaa,  but 
it  is  apparent  from  our  discussion  that  a 
Federal  question  was  presented  in  the  ease 
and  decided  by  the  court.  The  motion, 
therefore,  must  be  overruled,  and  the  judg- 
ment affirmed. 


[64]  UNITED  STATES,  Plff.  In  Err, 

V. 

NEW  SOUTH  FARM  &  HOME  COMPANY, 
Charles  H.  Seig,  Ben  Levin,  et  aL 

(See  S.  C.  Reporter's  ed.  64-73.) 

Appeal    ~    review    by    goyernment   in 
•    criminal  case  —  Jurisdiction. 

1.  llie  construction  of  the  Federal 
Criminal  Code,  §  215,  making  criminal  the 
use   of   the   mails   in   the   execution   of  a 


Note. — Review  by   Federal  govemment  in 

criminal  case. 

This  note  supplements  one  on  the  same 
question  appended  to  the  report  of  United 
States  V.  Stevenson  in  54  L.  ed.  U.  8.  153. 

The  criminal  appeals  act  of  March  2, 
1907,  was  not  repealed  by  the  Judicial  Code 
of  March  3,  1911,  since  the  former  act  is 
not  mentioned  among  the  statutes  express- 
ly repealed  by  §  297  of  the  Code,  is  not 
superseded  by  any  other  regulations  of  the 
matter,  and  is  a  special  provision.  United 
SUtes  V.  Winslow,  227  U.  S.  202,  67  L.  ed. 
481,  33  Sup.  Ct.  Rep.  253. 

Jurisdiction. 

The   Judgment   actually   entered   below, 

S41  U.  B. 


1916. 


UNITED  STATES  v.  NEW  SOUTH  FARM  &  H.  CO. 


•cheme  to  defraud,  is  involved,  so  as  to 
sustain  a  writ  of  error  from  the  Federal 
Supreme  Ck>urt,  in  a  decision  of  a  district 
«ourt  bv  which  a  demurrer  to  an  indict- 
ment charging  violations  of  this  section 
was  sustained  on  the  ground  that  allega- 
tions of  the  employment  of  false  represen- 
tations in  furtherance  of  a  plan  to  sell 
real  estate  did  not  constitute  a  scheme  to 
defraud,  punishable  under  that  section,  if 
the  land  to  be  sold  was  worth  the  purchase 
price  asked. 

[For  other  cases,  see  Appeal  and  Error,  I.  e. 
In   Digest  Bap.  Ct.   1008.] 

Postoffioe  ~  use  of  malls  to  defraud. 

2.  Persons  employing,  in  furtherance 
d  a  plan  to  sell  10-acre  farms,  false  rep- 
resentistions  as  to  climate,  fertility,  crops, 
advantages,  prospective  improvements,  etc., 
have  engaged  in  a  "scheme  or  artifice  to 


defraud,  or  for  obtaining  money  or  prop- 
erty by  means  of  false  or  fraudulent  pre- 
tenses, representations,  or  promises,"  with- 
in the  meaning  of  the  Federal  Criminal 
Code,  §  215,  making  criminal  the  use  of 
the  mails  in  the  execution  of  such  sdieme, 
although  the  lands  to  be  sold  may  be  worth 
as  much  as  the  purchase  price  asked. 

[For  other  cases,  see  Postofflce,  VI..  in  Digest 
Sup.  Ct.   1908.] 

[No.  808.] 

Argued  April  7,  1916.     Decided  April  24, 

1916. 

IN  ERROR  to  the  District  Court  of  the 
United  States  for  the  Southern  District 
of  Florida  to  review  a  judgment  sustain- 


and  not  the  terms  of  a  stipulation  of  coun- 
sel, previously  made  and  filed,  controls  the 
Federul  Supreme  Court  in  determining 
whether  such  judgment  is  reviewable  on 
writ  of  error  under  the  act  of  March  2, 
1907,  as  one  ''sustaining  a  special  plea  in 
bar  when  the  defendant  has  not  been  put 
in  jeopardy."  United  States  v.  Barber,  219 
U.  S.  72,  65  L.  ed.  99,  31  Sup.  Ct.  Rep.  209. 

A  judgment  of  a  Federal  district  court 
purporting  to  dismiss  an  indictment  upon 
the  ground  that  the  statute  of  limitations 
was  a  bar  to  the  prosecution  is  one  sus- 
taining a  special  plea  in  bar  within  the 
meaning  of  the  act  of  March  2,  1907,  gov- 
erning the  right  of  the  government  to  a 
review  in  a  criminal  case,  although  the  plea 
of  the  statute  of  limitations,  filed  and  heard 
by  consent  and  stipulation,  was  denomi- 
nated a  plea  in  abatement.    Ibid. 

A  judgment  of  a  Federal  district  court 
la  a  criminal  prosecution  of  an  express  com- 
pany under  the  act  to  regulate  commerce, 
sustaining  a  motion  to  quash  service,  which 
the  court  treated  as  a  demurrer  to  the  in- 
dictment, and  dismissing  the  case  because 
the  express  company  is  not  a  corporation, 
but  is  a  joint  stock  association,  is  review- 
able in  the  Federal  Supreme  Court  under 
the  act  of  March  2,  1907,  as  a  decision 
setting  aside  the  indictment,  based  upon  the 
oonstruction  of  the  statute  upon  which  the 
indictment  is  founded.  United  States  v. 
Adams  Exp.  Co.  229  U.  S.  381,  57  L.  ed. 
1237,  33  Sup.  Ct.  Rep.  878. 

A  judgment  of  a  Federal  circuit  court 
sustaining  a  demurrer  to  certain  counts  m 
an  indicSnent  charging,  violations  of  the 
anti-trust  act  of  Julv   2,   1890,  upon  the 

Sound  that  the  acts  charged  are  not  within 
e  condemnation  of  that  statute,  is  based 
npon  a  construction  of  such  statute  within 
tiSe  meaning  of  the  act  of  March  2,  1907, 
governing  the  right  of  the  government  to  a 
review  in  a  criminal  case.  United  States  v. 
Patten,  226  U.  S.  525,  57  L.  ed.  333,  44 
LJLA.(N.S.)  325,  33  Sup.  Ct.  Rep.  141. 

A  decision  of  a  Federal  district  court  sus- 
taining a  demurrer  to  an  indictment  upon 
the  ground  that  the  acts  charged  did  not 
fall  within  the  condemnation  of  the  statute 
•0  li.  ed. 


on  which  the  indictment  is  founded  is  based 
upon  the  oonstruction  of  such  statute,  so 
as  to  be  reviewable  in  the  Federal  Supreme 
Court.  United  States  v.  Birdsall,  233  U.  & 
223,  58  L.  ed.  930,  34  Sup.  Ct.  Rep.  512. 

A  decision  of  a  Federal  district  court, 
sustaining  a  demurrer  to  an  indictment 
charging  a  conspiracy  to  defraud  the  United 
States  by  unlawfully  increasing  the  gross 
postoffice  receipts  on  which  the  postmaster's 
salary  is  to  be  based,  and  a  conspiracy  to 
make  a  false  return  for  the  purpose  of 
fraudulently  increasing  such  compensation, 
is  based  upon  the  construction  of  the  stat- 
utes on  wnich  the  indictment  is  founded, 
and  is  therefore  within  the  appellate  juris- 
diction of  the  Supreme  Court,  where  the 
district  court  distinctly  ruled  that  such 
indictment  was  sufficient  in  its  technical  or 
formal  details,  and,  although  giving  special 
prominence  to  certain  regulations  of  the 
Postmaster  Qeneral,  considered  the  effect 
of  the  Federal  statutes  independently  of 
such  regulations  upon  the  sufficiency  and 
legality  of  the  postmaster's  return,  a  con- 
struction of  the  statutes  being  necessary 
to  determine  the  validity  of  the  regulations. 
United  States  v.  Foster,  238  U.  S.  515,  58 
L.  ed.  1074,  34  Sup.  Ct.  Rep.  666. 

The  meaning  of  the  statute  on  which,  as 
a  matter  of  law,  the  indictment  is  founded, 
may  be  misconstrued  within  the  meaning 
of  the  act  of  March  2,  1907,  allowing  a 
direct  writ  of  error  from  the  Federal  Su- 
preme Court  to  a  judgment  of  a  district 
court,  sustaining  a  demurrer  to  an  indict- 
ment when  based  upon  the  "oonstruction  of 
the  statute  upon  which  the  indictment 
was  founded,"  not  only  by  misinterpret- 
ing the  lan^age  of  such  statute,  but  by 
overlooking  its  existence  and  failing  to  ap- 
ply its  provisions  to  an  indictment  which 
sets  out  facts  constituting  a  violation  of  its 
terms.  United  States  v.  Nixon,  235  U.  S. 
231,  59  L.  ed.  207,  35  Sup.  Ct.  Rep.  40. 

The  decision  of  a  Federal  district  court 
quashing  as  "bad  in  law"  certain  counts  of 
an  indictment  purporting  to  charge  viola- 
tions of  U.  S.  Rev.  Stat,  i  5209,  Comp.  Stat. 
1913,  $  9772,  is  not  reviewable  in  the  Fed- 
eral SujMreme  Court  under  the  act  q1  VLkc^ 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct. 


ing  a  demurrer  to  an  indictment  charging 
the  nee  of  the  mails  to  defraud.    Reveraed. 
The  facts  are  stated  in  the  'opini<m. 

Assistant  Attorney  General  Wallace  ar- 
gued the  cause  and  filed  a  brief  for  plain- 
tiff in  error: 

U.  S.  Crim.  Code,  |  216,  may  be  Tio- 
lated  though  the  property  to  be  sold  under 
the  scheme  is  worth  the  price  to  be  de- 
manded. 

Ihirland  ▼.  United  States,  161  U.  8.  306, 
313,  40  L.  ed.  700,  711,  16  Sup.  Ct.  Rep. 
508;  Harris  v.  Rosenberger,  18  L.RA. 
(K.S.)  762,  76  C.  C.  A.  225,  145  Fed.  440; 
CHara  ▼.  United  States,  64  C.  C.  A.  81, 
320  Fed.  551;  Colbum  v.  United  SUtes, 
ISO  C.  O.  A.  186,  223  Fed.  500;  Wilson  T. 


United  States,  111  C.  C.  A.  231,  100  Fed. 
427;  United  States  v.  Barnow,  230  U.  S. 
74,  ante,  155,  36  Sup.  Ct.  Rep.  10. 

Mr.  W.  Knox  Hajnea  argued  the  cause 
and  filed  a  brief  for  defendants  in  error: 

The  right  given  to  the  United  States  to 
obtain  a  direct  review  by  this  court  of  the 
rulings  of  the  lower  court  does  not  give 
authority  to  revise  the  action  of  the  court 
below  as  to  the  mere  construction  of  an 
indictment,  and  therefore,  in  the  exercise 
of  the  court's  power  to  review  this  record, 
it  must  accept  the  construction  of  the  in- 
dictment made  by  the  lower  court,  and 
test  its  ccmstruction  of  the  statute  in  that 
respect,  starting  with  the  premises  that 
the  supposed  false  representations  are  in 


2,  1007,  as  based  upon  the  construction  of 
the  statute  on  which  the  indictment  was 
founded,  since  such  ruling  may  as  well  have 
rested  upon  the  opinion  of  the  court  as  to 
the  mere  insufficiency  of  the  indictment. 
United  States  v.  Carter,  281  U.  S.  402,  58 
L.  ed.  880,  84  Sup.  Ot  Rep.  178. 

A  decision  of  a  Federal  district  court  on 
demurrer,  that  the  averments  of  an  indict- 
ment charging  violations  of  the  anti-trust 
act  of  July  2,  1800,  were  not  sufficient  to 
connect  the  individual  defendants  with  the 
offense  charged,  is  a  construction  of  the  in- 
dictment, and  may  not  be  reviewed  in  the 
Federal  Supreme  Court  at  the  instance  of 
the  government.  United  States  v.  Pacific  k 
A  R.  &  Nav.  Co.  228  U.  S.  87,  57  L.  ed.  742, 
ZZ  Sup.  Ct.  Rep.  443. 

A  judgment  of  a  Federal  district  couH 
sustaining  a  demurrer  to  an  indictment  un- 
der the  Criminal  Code  of  March  4,  1000,  S 
215,  for  placing  a  letter  in  the  postoffice  for 
delivery  oy  the  postoffice  establishment  for 
the  purpose  of  executing  a  scheme  to  de- 
fraud, cannot  be  review^  in  the  Supreme 
Court  bv  writ  of  error,  where  it  does  not 
appear  from  the  record  upon  what  ground 
the  court  below  acted.  United  States  v. 
Moist,  281  U.  S.  701,  58  L.  ed.  444,  84  Sup. 
Ct.  Rep.  255. 

The  Federal  Supreme  Court  will  not  ex- 
amine the  entire  record  in  order  to  resolve 
in  favor  of  its  appellate  jurisdiction  a  doubt 
as  to  whether  a  ruling  of  a  district  court, 
ouashing  certain  counts  of  an  indictment  as 
''bad  in  law,"  was  based  upon  a  construc- 
tion of  the  statute  on  which  the  indictment 
was  founded,  within  the  meaning  of  the 
criminal  appeals  act  of  March  2,  1007,  or 
was  rested  upon  the  mere  insufficiency  of 
the  indictment.  United  States  v.  Carter, 
231  U.  S.  402,  58  L.  ed.  880,  84  Sup.  Ct. 
Rep.  178. 

Scope  of  review. 

The  district  court's  construction  of  the 
indictment  must  be  accepted  by  the  Federal 
Supreme  Court  when  reviewing,  under  the 
act  of  March  2,  1007,  a  judgment  sustaining 
a  demurrer  to  certain  counts  in  tha  indict 
8tS 


ment,  which  is  based  upon  the  construction 
of  the  Federal  statute  upon  which  the  in- 
dictment is  founded.  United  States  v. 
Winslow,  227  U.  S.  202,  57  L.  ed.  481,  83 
Sup.  Ct.  Rep.  258. 

The  Federal  Supreme  Court,  when  review- 
ing, under  the  criminal  appeals  act  of  Mardi 
2,  1007,  the  judgment  of  a  Federal  circuit 
court  whose  rulmg  sustaining  a  demurrer 
to  certain  counts  in  an  indictment  charging 
violations  of  the  anti-trust  act  of  July  2, 
1800,  was  based  upon  the  construction  of 
that  statute,  must  accept  the  circuit  court's 
construction  of  the  counts  of  the  indict- 
ment, and  can  consider  only  whether  the  de- 
cision that  the  acts  charged  are  not  con- 
demned as  criminal  by  the  statute  is  based 
upon  an  erroneous  construction  of  that  stat- 
ute. United  States  v.  Patten,  226  U.  S.  525, 
57  L.  ed.  833,  44  L.R.A(N.S.)  325,  33  Sup. 
Ct.  Rep.  141. 

The  Federal  Supreme  Court,  when  review- 
ing, under  the  act  of  March  2,  1007,  the  act 
of  the  trial  court,  sustaining  a  plea  in  bar 
of  the  statute  of  limitations  to  an  indict- 
ment charging  a  continuing  conspiracy,  is 
not  concerned  with  the  technical  sufficiency 
or  redundancy  of  the  indictment,  or  even 
with  any  consideration  of  the  nature  of 
the  overt  acts  alleged.  United  States  v. 
Barber,  210  U.  &  72,  55  L.  ed.  00,  31  Sup. 
Ct  Rep.  200. 

The  question  presented  for  decision  on 
direct  writ  of  error  to  a  circuit  court  from 
judgments  sustaining  demurrers  to  indict- 
ments under  the  act  to  regulate  commerce 
of  June  20,  1006,  making  it  a  misdemeanor 
for  a  shipper  knowingly  to  solicit,  accept, 
or  receive  a  rebate  or  concession  whereby 
property  is  transported  in  interstate  com- 
merce at  a  less  rate  than  that  named  in 
the  tariffs  "published  and  filed"  by  the  car- 
rier, on  the  ground  that  the  indictments  did 
not  allege  that  the  schedules  and  tariffs 
claimed  to  have  been  violated  were  posted 
in  the  manner  required  by  law,  is  whether 
compliance  with  the  requirements  of  the 
act  as  to  posting  of  tariffs  is  essential  to 
bring  a  tariff  within  the  descriptive  terms 
of  the  act.  United  States  v.  Miller,  223  U. 
S.  500,  56  L.  ed.  568,  82  Sup.  Ct.  Rep.  828. 

S41  U.  8* 


1915. 


UNIT£D  8TATBS  ▼.  NSW  SOUTH  FAHM  ft  H.  CO. 


reality  merely  permissible  puffing  or  trade 
talk,  and  that  the  indictment  is  consistent 
with  the  hypothesis  that  defendants  were 
legitimately,  and  not  fraudulently,  engaged 
in  the  enterprise  mentioned  in  the  indict- 
ment. 

United  States  ▼.  Keitel,  211  U.  S.  370, 
398,  53  1m  ed.  230,  244,  20^  Sup.  Ct.  Rep. 
123;  United  States  v.  Biggs,  211  U.  S.  507, 
53  L.  ed.  305,  29  Sup.  Ct  Rep.  181 ;  United 
States  V.  Patten,  226  U.  6.  525,  535,  57 
L.  ed.  338,  338,  44  L.R.A.(N.S.)  325,  33 
Sup.  Ct  Rep.  141;  United  SUtes  v.  Carter, 
231  U.  S.  492,  58  L.  ed.  330,  34  Sup.  Ct 
Rep.  173;  United  States  v.  Moist,  231  U.  S. 
701,  58  L.  ed.  444,  34  Sup.  Ct.  Rep.  255; 
United  States  v.  Pacific  &  A.  It:  ft'NaV.  Co. 
228  U.  S.  87,  108,  57  L.  ed.  742,  749,  33 
Sup.  Ct  Rep.  443. 

Mere  puffing  or  exagg^ ation  of  qualities, 
usefulness,  opportunities,  or  values  of  an 
article  of  commerce,  where  the  purchaser 
gets  the  article  intended  to  be  purchased, 
and  the  ralue  of  the  article  is  measured 
by  the  price  paid,  does  not  constitute  the 
false  representations,  promises,  etc,  de- 
nounced by  the  statute. 

Faulkner  ▼.  United  States,  85  C.  C.  A. 
204,  157  Fed.  841;  Harrison  v.  United 
States,  119  C.  C.  A.  78,  200  Fed.  665;  Rey- 
nolds y.  Palmer,  21  Fed.  435;  United 
States  ▼.  SUples,  45  Fed.  195;  Blair  T. 
Laflin,  127  Mass.  518. 

No  averment  of  such  fecial  intent  to 
defraud  is  contained  in  the  indictment,  and 
the  court  below,  in  construing  the  indict- 
ment, has  held  that,  for  aught  that  appears 
in  the  indictment,  the  defendants  were  en- 
gaged legitimately  (which  precludes  fraud- 
ulent intent)  in  the  sal^e  of  the  lands,  and 
has  th^reby  construed  the  indictment  as 
failing  to  charge  such  special  intent  to  de- 
fraud, and  as  being  therefore  insufficient 
Durland  v.  United  States,  161  U,  S.  306, 
313,  40  L.  ed.  709,  711,  16  Sup.  Ct.  Rep. 
508;  United  States  v.  Durland,  65  Fed. 
408;  United  States  v.  Stickle,  15  Fed.  803; 
Herman  v.  United  States,  53  C.  C.  A.  570, 
116  Fed.  350;  Rudd  v.  United  States,  97 
C.  C.  A.  462,  173  Fed.  912;  Hibbard  v. 
United  States,  96  C.  C.  A.  554,  172  Fed.  66; 
18  Ann.  Oas.  1040;  United  States  v.  Ried, 
42  Fed.  137;  Post  v.  United  SUtes,  70 
L.RA.  989,  67  C.  C.  A.  569,  135  Fed.  9; 
United  States  v.  Woottai,  29  Fed.  704; 
United  SUtes  v.  Conrad,  156  Fed.  248; 
United  SUtes  v.  Hess,  124  U.  S.  485,  31 
L.  ed.  517,  8  Sup.  Ct.  Rep.  571;  Atchison, 
T.  ft  S.  F.  R.  Co.  V.  United  SUtes,  95  C.  C. 
A.  446,  170  Fed.  250. 

When  an  intent  to  defraud  is  a  material 
element  in  an  offense,  an  omission  to  aver 
inch  intent  as  an  essential  part  of  the 
specific  scheme  described  renders  the  count 
«0  li.  ed. 


insufficient,   and   consistent  with   the  hy- 
pothesis of  innocent  intent 

United  States  v.  Britton,  107  U.  8.  655, 
27  L.  ed.  620,  27  Sup.  Ct  Rep.  512;  Evans 
V.  United  SUtes,  158  U.  S.  584,  594,  38 
L.  ed.  830,  834,  14  Sup.  Ct.  Rep.  934,  9 
Am.  Crim.  Rep.  668;  Fall  v.  United  SUtes, 
126  C.  0.  A.  869,  209  Fed.  552;  United 
SUtes  V.  Poet,  113  Fed.  862. 

The  sUtute  neither  defines  nor  denounces, 
but  aims  only  to  punish  using  the  mails 
in  effectuating  what  without  it  would  still 
be  schemes  or  artifices  to  defraud.  If  puff- 
ing and  trade  Ulk  are  permissible,  and 
not  fraudulent,  aside  from  the  sUtute, 
they  do  not  become  fraudulent  by  reason 
of  the  sUtute,  nor  is  the  construction  of 
cerUin  avermenU  to  be  mere  puffing  a  con- 
struction of  the  sUtute. 

Stockton  V.  United  SUtes,  46  L.RJL 
(NJ3.)  936,  123  C.  C.  A.  530,  205  Fed. 
462. 

The  repreeenUtion  by  one  who  desires 
the  erecticm  of  a  building  that  the  material 
can  be  produced  for  a  cerUin  amount,  in 
order  to  induce  another  to  contract  to 
erect  the  building  for  a  given  price,  will 
not  sustain  an  action  for  deceit. 

Enmierson  v.  Hutchinson,  63  HL  App. 
203. 

SUtemenU  that  a  business  can  be  bought 
at  a  bargaii^  that  the  place  is  a  good  one 
for   business,   that  money  could   be  made 
there,  are  mere  expressions  of  opinion. 
Danforth  v.  Cushing,  77  Me.  182. 
An   action   for   deceit   will   not   lie   lor 
sUtemenU  as  to  profiU  that  can  be  made 
in  the  future. 
Pedrick  v.  Porter,  5  Allen,  324. 
SUtemenU  by  the  vendor  of  land  as  to 
the  possibility  of  acquiring  adjoining  land, 
and  as  to  the  amount  of  crops  that  could 
be  grown  on  the  land,  are  mo'e  expressions 
of  opinion. 
Mooney  v.  Miller,  102  Mass.  217. 
A  statement  that  loU  will  soon  be  very 
valuable,  and  will  come  into  the  market 
soon,  and  be  worth  $2,000  each,  is  a  mere 
expression  of  opinion. 

Lockwood  V.  Fitts»  90  Ala.  150,  7  So. 
467. 

A   represenUtion   by   a  landowner  that 

the  land  will  produce  a  certain  amount  of 

hay  and  grapes  is  a  mere  matter  of  opinion. 

Holton  V.  Noble,  83  Cal.  7,  23  Pac.  58. 

A  sUtement  by  a  vendor  as  to  the  title 

is  a  mere  sUUment  of  opinion. 

Atwood  V.  Chapman,  68  Me.  38,  28  Am.  > 
Rep.  5. 

An   honest  expression   of  opinion   by  a 
vendor  as  to  his  title,  though  erroneous,  is 
not  fraud. 
Fitshugh  V.  Davis,  46  Ark.  837. 
A  general  asserti<m  of  title  to  property 

S9S 


66-07 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct. 


U  not  such  a  r^reaentation  of  fact  as  will 
be  a  basis  for  a  charge  of  fraud 

Ward  y.  Luneen,  26  111.  App.  160. 

An  expression  of  opinion  as  to  the  effect 
of  the  contents  of  a  deed  of  conveyance  is 
not  such  fraud  as  will  defeat  a  contract. 

Hoyt  V.  Bradley,  27  Me.  242. 

[65]  Mr.  Justice  MdKenna  delivered 
the  opinion  of  the  court: 

This  writ  of  error  is  directed  to  a  de- 
cision of  the  district  court,  sustaining  a  de- 
murrer to  an  indictment,  and  is  prosecuted 
under  the  criminal  appeals  act,  it  being 
contended  by  the  government  that  the  de- 
cision involved  the  construction  of  §  216 
of  the  Criminal  Code  [35  Stat,  at  L.  1130^ 
chap.  321,  Comp.  Stat.  1913,  (  10,386]. 
The  opposing  contention  is  that  the  court 
passed  only  on  the  sufficiency  of  the  in- 
dictment as  a  criminal  pleading,  and  that, 
therefore,  the  writ  of  error  should  be  dU- 
missed.  The  contentions  are  repeated  here, 
and  make  the  issue.  They  necessarily  re- 
quire a  consideration  of  the  indictment.  It 
is  constituted  of  three  counts.  Their  foun- 
dation is  §  216,  supra,  which,  so  far  as 
material,  reads  as  follows:  "Whoever,  hav- 
ing devised  .  •  .  any  scheme  or  artifice 
to  defraud,  or  for  obtaining  money  or  prop- 
erty by  means  of  false  or  fraudulent  pre- 
tenses, representations  or  promises,  ...  I 
shall,  for  the  purpose  of  executing  such 
scheme  or  artifice,  or  attempting  so  to  do, 
place,  or  cause  to   be  placed,  any   letter, 

•  •    •    circular,    ...    or  advertisement, 

•  •  .  in  any  postofflce,  ...  to  be  sent 
or  delivered  by  the  postoffioe  establishment 
of  the  United  States,    ..."  etc. 

The  section  is  a  somewhat  enlarged  suc- 
cessor of  i  6480,  Revised  Statutes,  which 
provides:     "It  any  person  having  devised 

•  •    .    any  scheme  or  artifice  to  defraud, 

•  .  •  shall,  in  and  for  executing  such 
scheme  or  artifice,  or  attempting  so  to  do, 


$9 


etc. 


place  any  letter    .    .    . 

As  showing  a  violation  of  S  215,  the  first 
count  of  the  indictment  charged  the  follow- 
ing facts,  which  we  state  narratively:  The 
individual  defendants  are  di.jctors  and 
stockholders  of  the  New  South  Farm  & 
Home  Company,  a  corporation  engaged  in 
selling  approximately  142,000  acres  of  land, 
referred  to  as  the  Burbank-Ocala  colony  and 
[66]  the  Florida-Palatka  colony,  situated 
in  Putnam,  Marion,  and  Clay  counties,  Flor- 
ida. They  devised  a  scheme  to  defraud  cer- 
tain persons,  who  were  named,  and  other 
persons,  of  their  money  and  property,  with 
the  intention  to  convert  the  same  to  the  use 
and  gain  of  the  defendants  and  the  corpora- 
tion, by  means  of  corre^Kmdence  and  com- 
munid^ions  through  the  postoffice  estab- 
lishment of  the  United  States^  and  by  means 
8t4 


of  oral  and  verbal  conununications,  by  offer- 
ing to  sell  to  such  persons,  and  inducing 
them  to  purchase,  certain  10-acre  farms  up- 
on certain  terms  through  false  and  fraudu- 
lent representations  concerning  the  title, 
fertility,  value,  drainage,  location,  environs^ 
and  survey  of  the  farms,  and  the  improve- 
ments made  or  to  be  made  thereon. 

The  representations  were  these:  The 
lands  and  farms  were  not  swampy;  the 
largest  ocean  steamers  operating  between 
New  York  and  Jacksonville  could  load  at 
Palatka;  a  family  could  make  enough  on 
one  farm  during  the  first  year  to  support 
itself  and  save  money;  three  crops  a  year 
could  be  grown;  every  month  in  the  year 
was  a  growing  month,  that  is,  some  farm 
or  truck  product  could  be  raised  during  each 
month  of  the  year;  the  farms  were  sur- 
rounded with  orange  and  citrus  fruit  groves 
and  vegetable  truck  farms;  the  farms  had 
fine  roads  running  through  them,  were  high 
and  well  drained,  and,  on  the  whole,  like 
the  lands  of  Kansas,  Nebraska,  Iowa,  and 
Illinois;  artesian  wells  werejBcattered  about 
on  the  farms  or  "could  be  obtained  by  go- 
ing down  100  feet;"  the  land  was  divided 
into  160-acre  tracts;  roads  were  being  built 
around  each  160-acre  tract  and  each  10-acre 
farm  would  face  on  a  road,  and  ditches  were 
being  dug  so  that  each  farm  would  be 
drained;  many  miles  of  fence  had  been 
erected  and  hundreds  of  homes  and  many 
schoolhouses  had  been  built;  the  school- 
houses  were  more  than  comfortably  filled 
with  pupils,  and  more  schools  would  have 
to  be  built  to  take  care  of  the  rapid  growth 
of  the  colonists  settling  upon  the  farms; 
comfortable  [67]  hotels  had  been  built  up- 
on the  lands  and  farms  and  improvements  of 
all  kinds  were  going  forward  at  a  wonderful 
rate;  lumber  was  cheap  and  homes  could  be 
built  without  nearly  so  great  expense  as 
in  most  places  in  Florida  and  at  about  one- 
half  of  the  expense  the  same  would  cost  in 
the  North;  the  Title  Guarantee  Company 
of  Jacksonville,  Florida,  would  guarantee 
the  title,  with  which  company  the  New 
South  Farm  k  Home  Company  had  made  ar- 
rangements so  that  purchasers  might  know 
that  their  investments  were  safe ;  the  farms 
were  cut  over  and  ready  to  go  upon  at  once, 
and  there  were  no  timber  leases  upon  the 
lands;  the  defendants  were  not  land  bnikers 
or  speculators;  the  New  South  Farm  & 
Home  Company  owned  the  land  outright, 
the  title  having  been  approved  by  the  best 
attorneys,  and  anyone  buying  a  farm  could 
d^>end  upon  securing  a  clear  title,  as  the 
company  was  selling  something  it  owned  it- 
self; the  farm^  were  free  from  mosquitoes, 
malaria,  and  insects  of  all  kinds  and  were 
below  the  frost  line;  the  company  had  se- 
cured telephone  oonneciions  with  Palatka 

141  U.  8* 


1915. 


UNITED  STATES  v.  NEW  SOUTH  FARM  &  H.  00. 


67-70 


and  with  local  exchanges  at  other  places 
(they  are  named)  which  would  place  every 
fatrm  "in  direct  touch  with  the  community 
at  all  times;"  the  lands  and  farms  were 
located  high  and  dry  and  in  a  section  well 
drained;  hundreds  of  people  had  settled  on 
them  and  at  the  little  city  of  Burbank  the 
lands  and  farms  had  increased— doubled, 
trebled,  and  quadrupled — in  price,  and  the 
same  was  true  of  the  lands  owned  by  the 
company  at  Silver  City,  and  a  thousand 
settlers  were  on  the  lands  who  could  sell 
them  at  a  large  profit;  land  selling  at  $30 
an  acre  woud  be  worth  in  two  years  $200 
and  $300  per  acre;  well-stocked  stores  and 
factories  were  located  upon  the  lands,  and 
they  were  the  best  located  and-  the  most 
fertile  lands  in  America,  and  Luther  Bur- 
bank  had  been  arranged  with  tor  *the  ex- 
clusive right  for  the  production  of  certain 
of  his  farm  products;'*  there  would  be  in- 
stalled a  Burbank  producing  [68]  station 
cm  the  lands  and  farms,  and  the  purchasers 
of  the  latter  would  share  in  the  profits  of 
the  station,  the  director  of  which  would  be 
available  for  the  needs  of  the  purchasers; 
one  could  get  out  of  a  Pullman  car  on  the 
farms,  use  a  long  distance  telephone,  have 
the  daily  paper,  rural  free  delivery,  and  all 
the  comforts  of  home. 

There  were  other  representations  of  fact, 
and,  to  give  emphasis  to  those  which  we 
have  enumerated,  it  was  charged  that  the 
pictures  in  the  publications  sent  out  by  the 
defendants  represented  the  true  conditions 
to  be  seen  on  the  farms. 

All  of  the  representations  were  explicitly 
repeated  and  charged  to  be  false;  that  de- 
fendants well  knew  them  to  be  so,  and  in- 
tended by  them  to  deceive  the  persons  to  be 
defrauded,  and  to  induce  such  persons  to 
part  with  their  money  and  property  in  the 
purchase  of  the  farms. 

That  the  representations  were  made  and 
communicated  by  the  defendants  to  the  per- 
sons intended  to  be  defrauded  through  and 
by  means  of  oral  statements,  circulars, 
maps,  advertisements,  photographs,  etc.,  so 
worded,  drawn,  constructed,  presented,  and 
expressed  as  to  deceive;  but  all  too  volumi- 
nous to  be  set  forth  in  the  indictment,  where 
fore  the  grand  jurors  omitted  them. 

That  the  defendants  deposited  in  the 
United  States  mail  at  Jacksonville  and  Pa- 
latka,  in  the  southern  district  of  Florida, 
certain  publications  known  as  "The  New 
Florida"  and  "Ten  Acres  and  Freedom"  and 
oertain  other  letters,  prints,  pamphlets, 
mmgasines,  and  publications  containing  the 
false  representations  set  out  above,  which 
were  addressed  to  the  person  intended  to 
be  defrauded,  and  on  -which  legal  United 
States  postage  had  been  paid. 

The  second  count  charged  the  defendants 
•O  li.  ed. 


I  with  entering  into  a  conspiracy  to  commit 
I  the  offense  described  in  the  first  count,  and 
repeated  its  allegations  and  representations, 
varied  only  to  meet  the  difference  in  the 
crime  [00]  charged.  In  other  words,  there 
were  allegations  which  charged  that  the 
conspiracy  was  to  be  accomplished  by  the 
representations  enumerated  in  the  first 
count,  that  they  were  false  and  known  to  be 
so,  and  made  with  the  same  fraudulent  pur- 
pose, and  to  be  accomplished  by  the  use  of 
the  United  States  mails.  Two  letters  from 
the  company,  signed  by  defendant  Seig  as 
president,  were  set  out  in  the  indictment. 

The  third  count  was  also  like  the  first  in 
its  general  charges  and  designated  by  name 
the  persons  that  were  intended  to  be  de- 
frauded. The  same  representations  were 
charged  to  have  been  made  "by  publishing 
and  causing  and  procuring  to  be  published 
divers  prints,  papers,  pamphlets,  booklets, 
circulars,  and  divers  advertisements."  The 
falsity  oif  the  representations  was  declared, 
and  that  the  scheme  of  fraud  was  to  be  ac- 
complished by  the  use  of  the  United  States 
mails.    A  letter  was  quoted. 

The  defendants  demurred  to  the  indict- 
ment. The  demurrer  is  a  very  voluminous 
document  and  practically  defies  condensa- 
tion. It  charges  that  the  indictment  does 
not,  nor  does  any  count  of  it,  "aver  and 
charge  any  offense  against  the  United 
States,"  that  each  and  every  count  thereof 
is  insufficient,  in  that  they  do  not,  nor  does 
either  of  them,  aver  the  facts  constituting 
a  scheme  to  defraud;  that  each  and  every 
count  is  insufficient  for  repugnancy,  uncer- 
tainty, ambiguity,  and  evasiveness ;  and  that 
each  and  every  count  is  insufficient  for  want 
of  distinct  and  adequate  specifications  of 
the  particulars  wherein  the  several  repre- 
sentations, called  in  the  count  false  repre- 
sentations, were  false. 

The  demurrer  then  attacks  each  count 
separately,  and  with  much  elaboration  and 
with  repetition  of  the  allegations  of  the 
indictmoit  sets  out  with  particularity 
wherein  no  offense  against  the  United  States 
was  charged. 

The  court  sustained  the  demurrer,  rest- 
ing its  decision  [70]  upon  the  second  and 
third  grounds  of  demurrer,  which,  we  have 
seen,  charged  that  neither  the  indictment 
nor  any  of  its  counts  averred  or  charged  an 
offense  against  the  United  States,  or  averred 
facts  which  constituted  a  scheme  to  de- 
fraud. It  was  said,  "The  scheme  to  defraud 
is  alleged  in  the  first  and  third  counts,  and 
the  conspiracy  count  also  sets  out  the  same 
scheme.  So  that  if  the  scheme  to  defraud 
set  out  in  each  of  said  counts  is  not  such 
a  scheme  as  is  punishable  under  the  law, 
the  entire  indictment  must  fail." 

Describing  the  representations,  the  court 


70-72 


SUPREMS  OOUBT  OF  THE  UNITED  STATSa 


Ooi.  Xbbm, 


said  they  "are  as  to  the  quality  of  the  land, 
climate,  crops  to  be  raised,  advantages  to 
be  obtained,  and  promises  of  improvement, 
etc."  And  further:  'There  is  no  denial  of 
the  facts  of  the  ownership  of  the  lands,  al- 
though there  is  a  denial  that  all  the  titles 
were  perfect.  Nor  is  there  denial  that  the 
land  was  worth  fully  as  much  as  was  to  be 
obtained  therefor.  For  aught  that  appears 
in  the  indictment,  the  lands  to  be  obtained 
were  worth  fully  as  much  as  was  to  be  paid 
by  the  parties  purchasing;  that  the  parties 
engaged  in  the  sale  were  legitimately  en- 
gaged in  the  sale  of  the  lands." 

The  court  regarded  the  business  as  legiti- 
mate, and  held  that  the  statute  was  not 
violated  by  puffing  the  qualities  of  the  ar- 
ticle sold  in  advertising  it.  In  other  words, 
as  the  court  expressed  it,  "raising  the  ex- 
pectations of  the  purchaser,  but  giving  that 
purchaser  value  received  for  his  money,  but 
not  fulfilling  those  expectations,"  was  not 
an  offense  against  the  statute.  And,  fur- 
ther, the  court  said  that  the  deduction  from 
the  authorities  referred  to  by  counsel  "is 
that  the  scheme  must  be  one  to  defraud  the. 
party,  or,  by  false  promises,  pretenses,  etc., 
deprive  him  of  money  or  property  with- 
out adequate  value.  Mere  puffing  or  exag- 
geration of  qualities,  usefulness,  opportuni- 
ties, or  value  of  an  article  of  commerce, 
where  the  purchaser  gets  the  article  intend- 
ed to  be  purchased,  [71]  and  the  value  of 
the  article  is  measured  by  the  price  paid,  do 
not  constitute  the  false  representations, 
promises,  etc.,  denounced  by  the  statute." 

We  have  made  these  excerpts  from  the 
opinion  of  the  court  the  better  to  handle 
the  contentions  of  the  parties,  which,  as  we 
have  seen,  are  quite  accurately  opposed,  the 
government  asserting  that  the  court  con- 
strued the  statute,  and  thereby  justifying 
its  appeal  to  this  court;  the  defendants  in- 
sisting the  court  construed  only  the  in- 
dictment as  a  pleading,  and  that  therefore 
this  court  is  without  jurisdiction. 

We  concur  in  the  view  of  the  government. 
The  court,  we  think,  construed  the  statute, 
and  misapprehended  its  import.  Mere  puff- 
ing, indeed,  might  not  be  within  its  mean- 
ing (of  this,  however,  no  opinion  need  be 
expressed) ;  that  is,  the  mere  exaggeration 
of  the  qualities  which  the  article  has;  but 
when  a  proposed  seller  goes  beyond  that, 
assigns  to  the  article  qualities  which  it  does 
not  possess,  does  not  simply  magnify  in 
opinion  the  advantages  which  it  has,  but 
invents  advantages  and  falsely  asserts  their 
existence,  he  transcends  the  limits  of  "puff- 
ing" and  engages  in  false  representations 
and  pretenses.  An  article  alone  is  not 
necessarily  the  inducement  and  compensa- 
tion for  its  purchase.  It  is  in  the  use  to 
TFbJch  it  may  be  put,  the  purpose  it  may 
S06 


serve;  and  there  is  deception  and  fraud 
when  the  article  is  not  of  the  character  or 
kind  represented  and  hence  does  not  serve 
the  purpose.  And  when  the  pretenses  or 
representations  or  promises  which  execute 
the  deception  and  fraud  are  false,  they  be- 
come the  scheme  or  artifice  which  the  stat- 
ute denounces.  Harris  v.  Rosenberger  (C. 
C.  A.  8th  C.)  13  L.R.A.(NJ3.)  762,  76  C.  C. 
A  225,  145  Fed.  449;  O'Hara  v.  United 
States  (C.  C.  A.  6th  C.)  64  0.  C.  A.  81,  129 
Fed.  551,  555;  Colbum  v.  United  States 
(C.  C.  A.  8th  C.)  139  G.  G.  A  136,  223  Fed. 
590;  Wilson  v.  United  SUtes  (C.  0.  A.  2d 
C.)  Ill  G.  G.  A  231,  190  Fed.  427.  See 
also  United  States  ▼.  Bamow,  239  U.  S.  74, 
ante,  156,  36  Sup.  Ot.  Rep.  19.  Especially 
is  this  true  in  the  purchase  of  [7S]  small 
tracts  for  homes,  and  upon  this,  if  the  alle- 
gations of  the  indictment  are  true,  the  de- 
fendants touched  every  string  of  desire  by 
false  statements,  and  sounded  every  note 
that  could  excite  and  delude.  We  need  not 
repeat  the  representations;  and  they  were 
made  graphic,  it  is  alleged,  by  pictures  and 
photographs. 

Indeed,  if  it  could  be  admitted  that  the 
article  offered  for  sale  and  its  price  could 
be  balanced,  the  one  against  the  other,  the 
price  necessarily  would  be  the  expression 
of  value,  and  be  constituted  of  all  the  at- 
tributes of  the  article,  intrinsic  and  extrin- 
sic; and  it  needs  no  comment  to  show  that 
a  10- acre  farm  with  the  character,  environ- 
ments, and  facilities  described,  its  price 
doubling,  trebling,  and  quadrupling  within 
a  year,  has  a  seduction  more  powerful  than 
one  not  advancing  in  value,  but,  it  may  bs^ 
receding;  that  is,  of  swampy,  not  of  high- 
land, character,  without  fertility,  hotds, 
roads,  artesian  wells,  citrus  groves,  Pull- 
man cars,  steamship  and  other  facilities 
which  the  literature  of  defendants  describes 
and  the  indictment  alleges. 

We  can  entertain  no  doubt  that  those  em- 
ploying such  representations,  if  they  are 
false,  have  engaged  in  a  scheme  to  defraud. 
The  defendants  did  not  seem  to  be  afraid 
of  repelling  by  excess,  and  extravagance  was 
even  used  in  a  personal  communication.  In 
a  letter  which  was  set  out  in  the  indictment 
it  was  said:  "Our  settlers  are  arriving 
daily  and  occupying  their  farms.  The  land 
is  being  rapidly  cleared,  crops  are  being 
planted,  houses  erected,  stores  built,  and,  on 
the  whole,  it  is  impossible  for  us  to  set  forth 
in  a  letter  to  you  exactly  how  stupendous 
is  the  work  that  is  going  on  there.  With- 
out a  question  of  a  doubt  the  Florida  Pa- 
latka  Golony  is  enjoying  the  greatest  pros- 
perity." 

Against  these  considerations  defendants 
contend  that  there  was,  notwithstanding, 
only  a  construction  of  the  indictment;  but 

241  U.  S. 


1916. 


UNITED  STATES  v.  LOHBABDO. 


73-76 


ask  thai,  if  we  are  of  a  different  view,  [73] 
the  case  be  reversed  only  so  far  as  the  stat- 
ute was  construed,  and  remanded  for  action 
upon  the  other  causes  assigned  for 
demurrer,  involving,  as  they  say,  the  suffi- 
ciency of  the  indictment  as  a  criminal  plead- 
ing. The  difficulty  is  to  indicate  a  distinc- 
tion. We  can  only  say  we  have  no  inten- 
tion to  control  the  District  Court  in  its 
construction  of  the  indietment,  and  we  have 
no  doubt  the  learned  court  will  be  able  to 
adjust  its  action  to  this  opinion.  United 
SUtes  V.  Portale,  236  U.  8.  27,  31,  69  L. 
ed.  Ill,  112,  36  Sup.  Ct.  Bep.  1. 
Reversed. 

Mr.  Justice  HcReynolds  took  no  part  in 
the  consideration  and  decision  of  tlus  case. 


UNITED  STATES,  Plff.  in  Err.» 

V. 

ANOELINE  LOMBABDO. 
(See  S.  C.  Beporter's  ed.  73-79.) 

Courts  —  venue  of  crime  ^  oonttnuing 
otrense. 

Violations  of  the  provision  of  the  act 
of  June  26,  1910  (36  Stat,  at  L.  826,  chap. 
395,  Comp.  Stat.  1913  (  8817),  making  it 
a  crime  for  the  harborer  of  an  alien  woman 
for  purposes  of  prostitution  to  fail  to  file 
with  the  Commissioner  Qeneral  of  Immi- 
gration the  statement  concerning  such 
woman  called  for  by  that  section,  are  com- 
mitted at  Washindbon,  District  of  Colum- 
bia, where  that  official  has  his  office,  and 
are  not  justiciable  elsewhere  on  the  theory 
that  the  failure  to  deposit  the  statement  in 
the  mail  is  the  beginning  of  a  continuing 
offense  which,  under  the  Judicial  Code, 
S  42,  may  be  prosecuted  either  in  the  dis- 
trict where  begun  or  where  completed,  since 
mailing  is  not  filing,  irithin  the  meaning  of 
the  statute. 

[For  other  cases,  see  Courts  Y*  c^  7,  bb  In 
Digest  Bap.  Ct  Rep.  1908.] 

[No.  830.] 

Submitted  AprU  10,  1916.     Decided  April 

24,  1916. 

IN  EBBOB  to  the  District  Court  of  the 
United  States  for  the  Western  District 
of  Washington  to  review  a  judgment  sus- 
taining a  demurrer  to  an  indictment  found- 
ed on  the  white  slave  trade  act.    Affirmed. 
See  same  case  below,  228  Fed.  980. 
The  facts  are  stated  in  the  opinion. 

Note. — As  to  locality  of  erime  committed 
through  the  agen<^  of  the  Biails  or  of  car- 


Assistant  Attorney  <3eneral  Wallaoe  sub- 
mitted the  cause  for  plaintiff  in  error. 

No  brief  was  filed  for  defendant  in  error. 

Mr.  Justice  HoKeniui  delivered  the  opin« 
ion  of  the  court: 

Error  under  the  criminal  appeals  act  (34 
Stat,  at  L.  1246,  chap.  2664,  Comp.  Stat. 
1913,  §  1704)  to  review  a  decision  of  the 
district  court  for  the  western  district  of 
Washington  (228  Fed.  980),  sustaining  a 
demurrer  to  an  indictment  founded  on  the 
'Vhite  slave  traffic  act"  (36  Stat,  at  L.  826, 
chap.  395,  Comp.  Stat.  1913,  (  8817). 

Section  6  of  that  act  provides  that  every- 
one "who  shall  keep,  maintain,  control,  sup- 
port or  harbor  in  any  house  or  place,  for 
the  purpose  of  prostitution,  .  .  .  any 
alien  woman  •  .  .  within  three  years 
after  she  shall  have  entered  the  United 
States  .  .  .  shall  file  with  the  Commis- 
sioner (General  of  Immigration  a  statement 
in  writing  setting  forth  the  name  of  such 
alien  woman,  .  •  .  the  place  at  which 
Bhe  is  kept,  and  all  facts  as  to  the  date  of 
her  entry  into  the  United  States,  the  port 
through  which  she  entered,  her  age,  nation- 
ality, and  parentage,  and  concerning  her 
procuration  to  come  to  this  country,  within 
the  knowledge  of  such  person ;  and  any  per- 
son who  shall  fail  within  thirty  days  after 
such  person  shall  commence  to  keep,  etc 
.  .  •  any  alien  woman,  •  .  •  to  file 
[75]  such  statement  concerning  such  alien 
woman,  .  .  .  with  the  Commissioner 
General  of  Immigration,  or  who  shall  know- 
ingly and  wilfully  state  falsely,  or  fail  to 
disclose  in  such  statement  any  fact  within 
his  knowledge  or  beliel  with  reference  to 
the  age,  nationally,  or  parentage  of  any 
such  alien  woman,  ...  or  concerning 
her  procuration  to  come  to  this  country, 
shall  be  deemed  guilty  of  a  misdemeanor, 
etc  " 

The  statement  is  not  excused  because  It 
may  have  Incriminating  character,  but  it  is 
provided  that  the  person  making  it  shall 
not  be  prosecuted  or  subjected  to  any  pen- 
alty or  forfeiture  under  any  law  of  the 
United  States  for  or  on  account  of  any 
transaction,  matter,  or  thing  concerning 
which  he  may  truthfully  report  in  such 
statement  as  required  by  the  provisions  of 
the  act 

The  indictment  charged  that  one  Jessie 
Miloe,  an  alien  woman  and  a  citizen  and 
subject  of  the  Kingdom  of  Great  Britain, 
had  entered  the  United  States  in  the  month 
of  May,  1914,  and  that  Angeline  Lombardo, 
knowing  these  facts,  did,  in  a  house  in  the 
dty  of  Seattle,  northern  division  of  the 


776. 

•0  !<•  ed. 


noteto  State  v.  Hudson,  19  Tf^>     western  district  of  Washington,  keep,  main- 

'  tain,  oontrol,  and  harbor  Jessie  Milos  f oi 
67  8tY 


76-78 


SUPREME  COUET  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


the  purpose  of  proBtitution  and  for  other 
immoral  purposes,  and  unlawfully,  knowing- 
ly, and  wilfully  failed  to  file  with  the  Com- 
missioner General  of  Immigration  a  state- 
ment in  writing  as  required  by  the  statute, 
or  any  statement  concerning  Jessie  Milos. 

It  was  alleged  that  the  United  States  and 
Great  Britain  are  parties  to  an  agreement 
or  project  or  arrangement  for  the  suppres- 
sion of  the  white  slave  traffic,  adopted  July 
25,  1902. 

There   were   two  grounds   of   donurrer: 

(1)  Section  6  of  the  white  slave  act  is  un- 
constitutional in  that  it  contravenes  rights 
guaranteed  by  the  4th  and  5th  Amendments 
to  the  Constitution  of  the  United  States. 

(2)  The  court  was  without  jurisdiction  of 
the  subject-matter  [76]  as  the  prosecution 
is  in  contravention  of  rights  guaranteed  by 
the  6th  Amendment. 

The  district  court  sustained  the  demurrer 
on  both  grounds.  We,  however,  shall  con- 
fine our  decision  to  the  second  ground,  as 
that  attacked  the  jurisdiction  of  the  court, 
in  that  the  offense  was  not  committed  in 
the  district  in  which  the  indictment  was 
found.    Passing  on  it  the  court  said: 

"The  gist  of  the  offense  is  the  failure  'to 
file  with  the  Commissioner  General  of  Im- 
migration' a  statement,  etc.  By  act  of 
March  3,  1891,  chap.  551,  §  7,  26  Stat,  at 
L.  page  1085,  Comp.  Stat.  1913,  §  954,  as 
amended  by  act  of  March  2,  1895,  chap.  177, 
28  Stat,  at  L.  page  780,  Comp.  Stat.  1913, 
§  955,  the  office  of  the  Commissioner  of  Im- 
migration was  created  and  his  office  fixed 
at  Washington,  District  of  Columbia.  The 
government  contends  that  the  offense  was  a 
continuing  one  and  extended  from  this  dis- 
trict to  Washington,  District  of  Columbia, 
and  that  the  filing  of  the  statement  need 
not  be  at  the  office  in  Washington,  but  may 
be  deposited  in  the  postoffice  of  the  United 
States,  addressed  to  the  Commissioner  Gen- 
eral, and  this  forwarding  through  the  usual 
course  of  mail  should  be  considered  as  'fil- 
ing,' and  that  the  failure  to  post  within 
thirty  days  would  commence  the  offense, 
which  would  be  continuous.  This  conten- 
tion cannot  be  reconciled  with  the  language 
employed  in  the  a6t.  The  word  'file'  was 
not  defined  by  Congress.  No  definition  hav- 
ing been  given,  the  etymology  of  the  word 
must  be  considered  and  ordinary  meaning 
applied.  The  word  'file'  is  derived  from  the 
lAtin  word  'filum,*  and  relates  to  the  an- 
cient, practice  of  placing  papers  on  a  thread 
or  wire  for  safe-keeping  and  ready  reference. 
Filing,  it  must  be  observed,  is  not  complete 
until  the  document  is  delivered  and  received. 
'Shall-  file'  means  to  deliver  to  the  office, 
and  not  send  through  the  United  States 
mails.  Gates  v.  State,  128  K.  Y.  221,  28 
N.  E.:373^'  A  paper  is  filed  ^hen  it  is  de- 
•9« 


iivered  to  the  proper  official  and  by  him  re- 
ceived and  filed.  Bouvier's  [77]  Law  Dict^; 
Hoyt  V.  Stark,  134  Cal.  178,  86  Am.  St.  Rep. 
246,  66  Pac.  223;  Wescott  v.  Eccles,  3  Utah, 
258,  2  Pac.  525;  Re  Von  Borcke  (D.  C.) 
94  Fed.  352;  Mutual  L.  Ins.  Co.  v.  Phinney, 
22  C.  C.  A.  425,  48  U.  S.  App.  78,  76  Fed. 
618.  Anything  short  of  delivery  would 
leave  the  filing  a  disputable  fact,  and  that 
would  not  be  consistent  with  the  spirit  of 
the  act." 

The  government  in  its  argument  here  con- 
tests the  views  of  the  district  court,  repeats 
its  contention  that  the  offense  was  begun  in 
the  state  of  Washington,  and  relies  on  §  42 
of  the  Judicial  Code  [36  Stat,  at  L.  1100, 
chap.  231,  Comp.  Stat.  1913,  §  1024],  sub- 
stantially reproducing  §  731  of  the  Revised 
Statutes.    It  provides  as  follows: 

"When  any  offense  against  the  United 
States  is  begun  in  one  judicial  district  and 
completed  in  another,  it  shall  be  deemed  to 
have  been  committed  in  either,  and  may  be 
dealt  with,  inquired  of,  tried,  determiped 
and  punished  in  either  district,  in  the  same 
manner  as  if  it  had  been  actually  and 
wholly  committed  therein." 

The  government  also  cites  a  number  of 
cases  which  it  urges  support  the  applica- 
tion of  the  statute  to  the  case  at  bar.  We 
are  imable  so  to  regard  the  cases,  or  to 
give  the  statute  the  application  contended 
for.  Nor  does  the  case  call  for.  elaborate 
discussion.  Indeed,  it  would  be  difficult  to 
add  anything  to  the  reasoning  of  Judge  Net- 
erer  in  the  district  court. 

Undoubtedly  where  a  crime  consists  of 
distinct  parts  which  have  different  locali- 
ties the  whole  may  be  tf  led  where  any  part 
can  be  proved  to  have  been  done;  or  where 
it  may  be  said  there  is  a  continuously  mov- 
ing act,  commencing  with  the  offender  and 
hence  ultimately  consummated  through  him, 
as  the  mailing  of  a  letter;  or  where  there 
is  a  confederation  in  purpose  between  two 
or  more  persons,  its  execution  being  by  acts 
elsewhere,  as  in  conspiracy. 

It  may  be  thkt  where  there  is  a  general 
duty  it  may  be  considered  as  insistent  both 
where  the  "actor"  is  and  the  "subject"  is» 
to  borrow  the  government's  apt  designa- 
tions, [78]  as  in  the  case  of  the  duty  of  a 
father  to  support  his  children;  and  if  the 
duty  have  criminal  sanction,  it  may  be 
enforced  in  either  place.  The  principle  is 
not  applicable  where  there  is  a  place  ex- 
plicitly designated  by  law,  as  in  §  6. 

The  government,  however,  contends  that 
"with  few  exceptions  every  crime  has  e(m- 
tinuity.  But  the  law,  being  essentially 
practical,  does  not  regard  every  crime  as 
continuous  for  the  purpose  of  jurisdiction. 
.  .  .  For  practical  purposes  it  usually 
suffices  to  punish  where  the  actor  bq^,  or 

141  V.  8. 


1916. 


H6FARLAKD  v.  AMERICAN  SUGAR  RBF.  00. 


78,  79 


where  the  subject  fuffered  the  intended  re- 
•ult.** 

If  these  propositions  be  granted  we  do 
not  see  that  they  carry  us  far  in  determin- 
ing where  a  violation  of  §  6  is  begun  or 
completed,  nor  do  we  appreciate  the  criti- 
cism of  the  decision  of  the  court  below  that 
it  ''failed  to  distinguish  between  the  'be- 
ginning' and  the  'completion'  of  the  offense; 
giving  the  words  'shall  file/  etc.,  a  meaning 
so  narrow  as  to  destroy  the  section."  But 
this  iH  assertion.  A  court  is  constrained 
by  the  meaning  of  the  words  of  a  statute. 
They  mark  the  extent  of  its  power,  and  our 
attention  has  not  been  called  to  any  case 
which  decides  that  the  requirement  of  a 
statute,  whether  to  secure  or  preserve  a 
right  or  to  avoid  the  guilt  of  a  crime,  that 
a  paper  shall  be  filed  with  a  particular  offi- 
cer, is  satisfied  by  a  deposit  in^the  postoffice 
at  some  distant  place.  To  so  hold  would 
create  revolutions  in  the  procedure  of  the 
law  and  the  regulation  of  rights.  In  in- 
stances it  might,  indeed,  be  convenient;  in 
others,  and  most  others,  it  would  result  in 
conf usioa  and  controversies ;  and  we  would 
have  the  clash  of  oral  testimonies  for  the 
certain  evidence  of  the  paper  in  the  files. 
We  hesitate,  in  order  to  accommodate  the 
venue  of  a  particular  offense,  to  introduce 
such  confusion.  And  would  it  not,  besides, 
in  particular  cases,  preclude  the  possibil- 
ity of  a  conviction,  putting  evidence  entire- 
ly in  the  hands  of  the  defendant?  [70] 
And  there  are  other  considerations.  If  de- 
positing in  the  postoffice  of  the  statement 
prescribed  be  required  by  the  statute,  it,  of 
course,  would  satisfy  the  statute,  but  to 
what  instant  of  time  would  it  be  referred 
and  at  what  risk  the  time  or  delays  of 
transportation  T 

There  need  not  be  a  prolonged  embarrass- 
ment in  the  prosecution  of  offenders,  as  the 
government  fears.  If  §  6  is  deemed  defect- 
ive it  can  be  corrected  by  legislation. 

Judgment  affirmed. 


WILLIAM  N.  McFARLAND,  Supervisor  of 
Public  Accounts  of  the  State  of  Louisiana 
and  E»  Officio  Inspector  of  Sugar  Refin- 
ing of  the  State  of  Louisiana,  et  al., 
Appts., 

V. 

AMERICAN    SUGAR    REFINING    COM- 
PANY. 

(See  S.  C.  Reporter's  ed.  79-87.) 

Injunction  —  a^inst  enforcement  of 
unconstitutional  statute  —  clean 
bnnds. 

1.  Unlawful  practices  of  a  sugar  re- 
fining company  in  the  conduct  of  its  busi- 
aess  cannot  defeat  its  right  to  maintain  a 
••  li.  ed. 


bin  in  equitt  to  restrain  the  threatened  en- 
forcement of  La.  Acts  1916,  No.  10,  regulat- 
ing the  business  of  sugar  refining,  which, 
it  asserts,  violates  its  rights  under  the 
Federal  Constitution. 

[ITor  other  cases,  see  Injanctlon.  I.  j ;  Equity, 
III.,   in    Digest   Sup.   Ct.   1908.] 

Constitutional  law  —  equal  protection 
of  the  laws  —  classification  ^  regulat- 
ing sugar  refining. 

2.  Defining  the  business  of  sugar  re- 
fining as  that  of  "any  concern  that  buys 
and  refines  raw  or  other  sugar  exclusively, 
or  that  refines  raw  or  other  sugar  from 
sugar  taken  on  toll,  or  that  buys  or  refines 
more  raw  or  other  sugar  than  the  aggre- 
gate of  the  suffar  produced  by  it  from 
cane  grown  and  purchased  by  it,"  as  is 
done  b^  §  15  of  Louisiana  Acts  1915,  No. 
10,  which  subjects  to  drastic  regulation  the 
business  of  sugar  refining,  renders  the  stat- 
ute repugnant  to  the  equal  protection  of 
the  laws  clause  of  U.  S.  Const.,  14th  Amend., 
as  producing  a  classification  which,  if  it 
does  not  confine  itself  to  one  particular 
concern,  is  at  least  arbitrary  beyond  pos- 
sible justice. 

[For  other  cases,  see  Constitutional  Law,  IV. 
a.  5,  in  Digest  Sup.  Ct.  1008.] 

Constitutional  law  ~  equal  protection 
of  the  laws  ^  creating  presumption 
of  guilt. 

3.  A  state  cannot,  consistently  with 
the  equal  protection  of  the  laws  clause  of 
U.  S.  Const.,  14th  Amend.,  create,  as  is 
attempted  b^  Louisiana  Acts  1915,  No.  10, 
a  presumption  of  participation  in  a  for- 
bidden monopoly  or*  combination  from  the 
systematic  payment  in  Louisiana  by  a 
person  engaged  in  sugar  refining  within 
that  state  of  a  less  price  for  sugar  than 
he  pays  in  any  other  state,  nor  a  presump- 
tion that  the  closing  or  keeping  idle  of  a 
sugar  refinery  for  more  than  one  year  was 
for  the  purpose  of  violating  that  statute 
or  the  laws  against  monopolies. 

(For  otlier  cases,  see  Constitutional  Law,  IV. 
a,  8,  in  Dlfcest  Sup.  Ct.   1008.] 

Statutes  —  invalid  in  part. 

4.  The  unconstitutionality  of  the  classi- 
fication attempted  in  Louisiana  Acts  1915, 
No.   10,   regulating  the  business  of  sugar 

Note.-— On  the  power  of  legislature  to  en- 
act a  prima  facie  rule  of  evidence  for  crim- 
inal cases — see  note  to  Banks  v.  State,  2 
L.R.A.(N.S.)  1007. 

As  to  the  validity  of  class  legislation, 

rnerally — see  notes  to  State  v.  Goodwill, 
L.R.A.    621,    and    State    v.    Loomis,    21 
L.R.A.  789. 

As  to  constitutional  equality  of  privileges, 
immunities,  and  protection,  generally — see 
note  to  Louisville  Safety  Vault  &  T.  Co.  v. 
Louisville  A  N.  R.  Co.  14  L.R.A.  579. 

Generally,  on  statutes  part  valid  and  part 
invalid — see  notes  to  Titusville  Iron  Works 
V.  Keystone  Oil  Oo.  1  IaR.A.  363,  and  Fay- 
ette County  V.  People's  k  D.  Bank,  10  L.R.A. 
196. 

On  illegal  trusts  under  modern  anti-trust 
laws — see  note  to  Whitwell  v.  Continental 
Tobacco  Co.  04  L.R.A.  689. 

%%% 


8UPREMS  OOUBT  OF  THE  UNITED  STATES. 


Ooi.  Tom, 


refining,    and    of    the    provisioAe    of    that 
statute  creating  presumptions  of  guilt,  re- 

?uire8  that  the  act  fall  as  a  whole. 
For   other   cases,   see    Statates,    I«   d,   4,   in 
Digest  Bulk  Ct.  1908.] 

[No.  847.] 

Argued  April   11   and   12,   1916.     Decided 
April   24,    1916. 

APPEAL  from  the  District  Court  of  the 
United  States  for  the  Eastern  District 
of  Louisiana  to  review  a  decree  enjoining 
the  threatened  enforcement  of  a  state  stat> 
ute  regulating  the  business  of  sugar  refin- 
ing. Afiirmed. 
See  same  case  below,  229  Fed.  284. 
The  facts  are  stated  in  the  opinion. 

Messrs.  Donelson  Caffery  and  Harry 
Gamble  argued  the  cause,  and,  with  Mr. 
Daniel  Wendling  and  Mr.  Rufl3n  Q.  Pleas- 
ant, Attorney  General  of  Louisiana,  filled  a 
brief  for  appellants: 

Can  one  whose  continuing  conduct  has 
necessitated  the  enactment  of  a  police  regu- 
lation come  into  equity  to  assail  that  regu- 
lation? 

National  Mercantile  Co.  ▼.  Keating,  218 
Fed.  479;  Danciger  ▼.  Stone,  187  Fed.  853. 

The  hands  of  the  complainant  are  un- 
clean. 

Danciger  ▼.  Stone,  187  Fed.  862;  Dela- 
ware, L.  &  W.  R.  Co.  ▼.  Frank,  110  Fed. 
689;  American  Biscuit  &  Mfg.  Co.  v.  Klotz, 
44  Fed.  726;  McConnell  v.  Camors-McCon- 
nell  Co.  162  Fed.  332;  Wheeler  v.  Sage,  1 
Wall.  618,  17  L.  ed.  646;  BarUe  v.  Nutt, 
4  Pet.  184,  7  L.  ed.  825;  Pittsburgh,  C.  C. 
&  St.  L.  R.  Oo.  V.  CrothersTille,  59  Ind.  330, 
64  N.  E.  914. 

For  an  injunction  to  issue  in  order  that 
a  monopolist  may  continue  to  ply  his  trade 
goes  counter  to  every  idea  of  justice. 

Foster,  Fed.  Pr.  5th  ed.  (  285;  Anony- 
mous, Cary,  12 ;  Hanauer  v.  Doane,  12  Wall. 
349,  20  L.  ed.  442. 

Equity  will  not  lend  itself  to  a  perpetu- 
ation of  an  unjust  advantage. 

16  Cyc  148;  Larschied  v.  Kittell,  142 
Wis.  172, 125  N.  W.  442,  20  Ann.  Cas.  576 ; 
Sanders  ▼.  Cauley,  52  Tex.  Civ.  App.  261, 
113  S.  W.  560. 

Equity  is  not  bound  by  forms  in  passing 
on  die  question  of  unclean  hands. 

Chute  ▼.  Wisconsin  Chemical  Co.  185 
Fed.  118;  Creamer  v.  Bivert,  214  Mo.  473, 
113  S.  W.  1118;  Moring  v.  Privott,  146  N. 
C.  558,  60  S.  E.  509 ;  United  States  v.  Work- 
ingmen's  Amalgamated  Council,  26  L.R.A. 
158,  4  Inters.  Com.  Rep.  831,  54  Fed.  994. 

Sugar  planters  can  be  exempted  from  the 
regulation  of  sugar  refining,  under  the  equal 
proteeti<m  clause  of  the  Oonstitution. 
000 


St  John  V.  New  York,  201  U.  8.  638,  50 
L  ed.  897,  26  Sup.  Ct  Rep.  554,  5  Ann. 
Cas.  909;  Cox  v.  Texas,  202  U.  S.  447,  60 
L.  ed.  1099,  26  Sup.  Ct  Rep.  671;  Keokes 
ConsoL  Coke  Co.  ▼.  Tayk>r,  234  U.  S.  224,  58 
L.  ed.  1288,  34  Sup.  Ct  Rep.  856;  American 
Sugar  Ref.  Co.  v.  Louisiana,  179  U.  S.  89, 
45  L.  ed.  102,  21  Sup.  Ct  Rep.  43. 

The  rule  of  evidence  is  the  same  as  that 
upheld  in  Meeker  v.  Lehigh  Valley  R.  Co. 
236  U.  S.  412,  59  L.  ed  645,  P.U.R.1915D, 
1072,  35  Sup.  Ct  Rep.  328,  esUblishing 
that,  as  to  parties  subject  to  the  jurisdic- 
tion of  the  Interstate  Commerce  Commis- 
sion, its  findings  should  be  prima  facie  evi- 
dence of  the  facts  stated  in  the  Commis- 
sion's order.  See  also  Jones  ▼.  Brim,  165 
U.  S.  180,  41  L.  ed.  677,  17  Sup.  Ct  Rep. 
282,  1  Am.  Neg.  Rep.  547. 

It  is  reasonable  to  classify  a  prima  facis 
monopolists,  those  who  systematically  pay 
less  for  a  commodity  in  one  state  than  in 
other  states. 

Central  Lumber  Co.  v.  South  Dakota,  226 
U.  S.  159,  57  L  ed.  169,  33  Sup.  Ct  Rep. 
66;  State  ex  rel.  Young  v.  Standard  Oil  Ca 
111  Minn.  85,  126  N.  W.  527;  State  v.  Fair- 
mont Creamery  Co.  163  Iowa,  702,  42 
L.R.A.(N.S.)  821,  133  N.  W.  895;  Germsa 
Alliance  Ins.  Co.  v.  Hale,  219  U.  S.  307,  66 
L.  ed.  229,  31  Sup.  Ct  Rep.  246;  Keokee 
ConsoL  Coke  Co.  v.  Taylor,  234  U.  S.  224, 
58  L.  ed.  1288,  34  Sup.  Ct.  Rep.  856;  Car- 
roll V.  Greenwich  Ins.  Co.  199  U.  S.  401,  50 
L.  ed.  246,  26  Sup.  Ct  Rep.  66. 

This  classification  was  not  arbitrary. 

Central  Lumber  Co.  v.  South  Dakota,  226 
U.  S.  159,  57  L.  ed.  168,  33  Sup.  Ct  Rep. 
66 ;  International  Harvester  Co.  v.  Missouri, 
234  U.  S.  199,  58  L  ed.  1276,  52  LJU. 
(N.S.)  625,  34  Sup.  Ct.  Rep.  859;  Carroll  ▼. 
Greenwich  Ins.  Oo.  199  U.  S.  401,  50  L  ei 
246,  26  Sup.  Ct  Rep.  66;  Bosley  v.  Me- 
Laughlin,  236  U.  S.  385,  59  L.  ed.  632,  35 
Sup.  Ct  Rep.  345;  Missouri  P.  R.  Co.  T. 
Omaha,  235  U.  S.  121,  59  L.  ed.  157,  35 
Sup.  Ct  Rep.  82;  Mallinckrodt  Chemical 
Works  V.  Missouri,  238  U.  S.  41,  59  L.  ed. 
1192,  35  Sup.  Ct.  Rep.  671;  German  Alli- 
ance Ins.  Co.  V.  Lewis,  233  U.  S.  389,  416, 
58  L  ed.  1011,  1024,  LJtA.1915C,  1189, 
34  Sup.  Ct.  Rep.  612;  Keokee  Consol.  Coki 
Oo.  V.  Taylor,  234  U.  8.  224,  58  L.  ed.  1288, 
34  Sup.  Ct.  Rep.  856;  Singer  Sewing  Maeh. 
Co.  V.  Brickell,  233  U.  S.  304,  58  L  ed.  974, 
34  Sup.  Ct.  Rep.  493;  Hammond  Packing 
Co.  ▼.  Montana,  233  U.  S.  331,  58  L  ed. 
985,  34  Sup.  Ct  Rep.  596;  Atlantic  Cosst 
Line  R.  Co.  v.  Georgia,  234  U.  S.  280,  58 
L.  ed.  1312,  34  Sup.  Ct  Rep.  829;  Kanssi 
City  Southern  R.  Co.  v.  Anderson,  233  U.  8. 
325,  58  L.  ed.  983,  34  Sup.  Ct  Rep.  5M; 
Missouri,  K.  &  T.  R.  Oo.  v.  Cade,  233  U.  S. 
647,  58  L.  ed.  1137,  34  Sup.  Ct  Rep.  678; 

141  U.  8. 


ItlS.  UoFABLAKD  v.  AHEBICAN  SUGaB  REF.  CO. 

diMapeake  ft  0.  S.  Co.  t.  Conle;,  230  U.  S  American   Live   Stock   Commiasion  Co.   t. 

S13,  67  L.  td.  1587.  33  Sup.  Ct  Rep.  685;  Chicago  Live  Stock  Excb.   143  HI.  210,  18 

Botoithal  T.  Nov  York,  22S  U.  S.  260,  67  LJLA.  ZOO,  30  Am.  St.  Kep.  398,  32  N.  E. 

L.  ed.  212,  33  Sup.  Ct.  Rep.  27,  Ann.  Cu.  274;  ladd  t.  Southern  Cotton  Press  &  Mfg. 

U14B,      71;      Citisena'      Teleph.      Co.      v.  Co.  B3  Tex.  172;  EI7,  Monopcliea  k  Tniats, 

Puller,      229      U.     B.      322,      S7      L.      ed  p.  228;  Vut  Hise,  aiiiceDtrB,tioii  ft  Control: 

1»>7,    33    Sup.    Ct    Kep.  833;    Travellen'  MonUgue,  Truste,  p.  183;  Pipe  Line  Cases 

bu.    Co.    T.    ConnecUcut,    1S5    U.  5.    364,  (United  Statee  t.  Ohio  Oil  Co.)   234  U.  S. 

44  L.  ed.  949,  22  Sup.  Ct.  Rep.  e73i  King  v  661,  Gg  L.  ed.  14T0,  34  Sup.  Ct.  Rep.  956; 

Hullins,  171  U.  S.  404,  436,  43  L.  ed.  214,  Eddr,  CombiuAtioDs,  gS  1046,  1049;  Colum- 

226,    18   Sup.   Ct.    Rep.   925;    Consolidated  bian  Athletic  Club  t.  State,  143  Ind.  98,  2S 

Goal  Co.  V.  lUiuoiB,  185  U.  S,  203,  46  L.  ed  LJLA.  727,  G2  Am.  St.  Rep.  407,  40  N.  E. 

872,    22    Sup.    Ct.    Rep.    616;    McLean    t  914)   Crowlej  t.  Chriatenaen,  13T  U.  S.  86, 

Arkansai,  211  U.  S.  539,  63  L.  ed.  316,  2B  34  L.  ed.  620,  11  Sup.  Ct  Rep.  13;  Leeper  t. 

Bup.  Ct.  Rep.  20S;  New  York,  N.  H.  ft  H.  Texas,  139  U.  S.  468,  36  L.  ed.  227,  11  Sup. 

B.  Co.  T.  New  York,  165  U.  S.  628,  41  L.  Ct  Rep.  677;  Re  Kemmler,  136  U.  S.  436, 

•d.  863,  17  Sup.  Ct  Rep.  418;  Dow  v.  Bel.  34  L.  ed.  619,  10  Sup.  Ot.  Rep.  930. 

delman,  126  U.  S.  680,  31  L.  ed.  841,  2  Summary  proceu  is  not  riolatiTe  of  due 

Inters.  Com  Rep  56,  8  Sup.  Ct  Rep.  1028;  proceae  of  law. 

Postal  Teleg.  Cable  Co.  v.  Adams,  156  U.  S.  Iowa  C.  R.  Co.  t.  Iowa,  160  U.  S.  3S9,  40 

•88,  39  L.  ed.  311,  5  Intera.  Com.  Rep.  1,  L.  ed.  467,  16  Sup.  Ct.  Rep.  344;  Louiaville 

16  Sup.  Ct.  Rep.  268,  360;  Magoun  t.  Illin-  ft  N.  R.  Co.  t.  Schmidt,  177  U.  5.  230,  44 

OU  Truat  ft  SaT.  Bank,  170   U.  S.  283,  42  L.  ed.  747,  20  Sup.  a.  Rep.  620;  Standard 

L.  ed.  1037,  18  Sup.  Ct    Rep.  694;   Baccua  Oil  Co.  t.  Miaaouri,  224  U.  8.  287,  56  L.  ed. 

T.  Louisiana,  232  U.  S.  334,  68  L.  ed.  627,  769,  32  Sup.  Ct  Rep.  406,  Ann.  Cas.  1913D, 

M  Sup.  Ot.  Rep.  439;  Quong  Wing  t.  Kirk-  938;  Hnrtado  *.  California,  110  U.  8.  518, 

Mdall,  223  U.  S.  69,  66  L.  ed.  360,  32  Sup.  28  L.   ed.   232,  4   Sup.   Ct   Rep.   11],  292; 

Ct  Rep.  192;  Mutual  Loan  Co.  v.  Martell,  Uugler  t.  Kansas,  123  U.  S.  623,  31  L.  ed. 

222  U.  S.  233,  G6  L.  ed.   178,  32  Sup.   Ct  205,  8  Sup.  Ct  R^.  273;  Spalding  t.  Pree- 

Rep.   74,  Ann.   Cas.   1913B,   529;   Miller  t.  ton,  21  Vt  9,  60  Am.  Dec.  68;  Lanton  v. 

Wilson,  236  U.  S.  373,  59  L.  ed.  628,  LJLA.  Steele,  162  U.  S.  133,  38  L.  ed.  386,  14  Sup. 

1915F,  829.  35  Sup.  Ct.  Rep.  342;   Jefire;  Ot.   Rep.   499. 

Mfg.  Co.  T.  Blagg,  235  U.  S.  671,  69  L.  ed.  A  reguUtion  pro*iding  that  a  public  util- 

U4,  35  Sup.  Ct.  Rep.  167,  7  N.  C.  C.  A.  670;  it;  ahall  not  be  capriciouatj  discontinued  ia 

Pullman  Co.  v.  Knott,  235  U.  S.  24,  69  L.  ed.  valid. 

110,  36  Sup.  Ct.  Rep.  2.  Eddj,  Combinations,  S  1048;  Montague, 

Act  No.  10  should  not  be  nnllLfled  if  in-  Trusts,  p.  197. 

valid  in  an  uneaaential  particular.  A  statute  r^ulating  a  monopollied  in- 

Lewia's  Sutherland,  Stat  Oonatr.  2d  ed.  )  luatr;  is  not  in  conflict  with  a  constitution- 

29P;  Tieman  t.  Rinker,  102  U.  B.  123,  26  l1  prohibition  of  mo'.opoliea. 

L.  ed.  103;  Guinn  v.  United  States,  238  U.  Carroll  t.  Greenwich  Ina.  Co.   199  D.  S. 

8.  347,  69   L.  ed.  1340,  L.RJ1.1916A.  1124.  M6,  50  L.  ed.  246,  26  Sup.  Ct  Rep.  88. 

^  ^?n^*.,^?;  V'-J-:"'^'^  !;  ^^k.l  M'-  -»""*»  M-  Beck  argued  the  cau«,. 

Campbell    230   U.   S^  637.  67   L    ed.   1610,  ^^  ^j^,  „„,„   ^        ^^  W.  Carroll,  George 

«8up«1^p«^brandV.^kV^^^  '"^ ''1  '  ''"' ^'J'^'""^' ■       t 

...  ..         „    «         .     .        ..    «    ._  The    obieotion    that    oomplainant    cornea 

Michigan  R.  Commiasion,  231  U.  8.  467,  68  .           ^  „-.t  ,  _  ,  .     l..,j          j  ■    .1.  „ 

T     J*o,n    ,..0...    r..    T,„     ,=0.    oJ nto  court  With  unclean  hands,  and  18  there- 


L.  ed.   310,  34   Sup.   Ct   Rep.   162;   Singer 


ij  barred  from  asking  relief  from  the  e 


>M!.»  L.  rf.  971,  34  Sap.  Ct.  R.p.  1.3  ,„„,  „j  „„„„j 
Tbe«  I.  »o  d«...I  of  d«.  proca.  ol  l.w,       Liv.rpocl  t  L  t  O.  lu.  Co.  y.  Ctonl.,  88 

cr,r  uv^°  '"'•""■  "^ "  '*"  ;=  c."c.\Xo'  ^•d.'s.rxisf  ..'S 

Oentral  Lumber  Co.  t.  South  Dakota.  228  '"Pend'^t  Order  of  OwU,  136  C.  C.  A.  268, 

U,  8.  157,  57  I*  ed.  164,  33  Sup.  Ct  Rep.  '20  Fed.  862;  Smyth  t.  Am«,  168  U.  8. 

Mi   Munn  t.  lUinoU,  94  U.  8.  113,  24  L.  IM.  42  L-  ed.  819,  18  Bup.  Ct.  Re^).  418; 

•d.  77;   Braaa  v.  North  Dakota,  153  U.  8.  Sx  parts  Young,  208  U.  S.  123,  164,  166,  52 

•01,  38  L,  ed.  767,  4  Intera.  Com.  Rep.  870,  '^.  ed.  714,  730,  731,  13  L.RJ,.(N.S.)    932, 

14  Sup.  Ct.  Rep.  867;  German  Alliance  Ina.  !8   Sup.   Ot  Rep.   441,   14   Ann.   Caa.   764; 

Co.  T.  Lewis,  233  U.  8.  389,  58  L.  ed.  1011,  Cleveland  t.  Cleveland  City  R.  Co.  194  V. 

L.R.A.1016C.  1189,  34  Bup.   Ct  Bep.   61S;  tJ.  617.  631.  48  L.  ed.  1102,  1106,  24  Su-q. 
••  I.,  ed.  *^^ 


80-82 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Teem, 


Ct.  Rep.  756;  Wadley  Southern  R.  Co.  v. 
Georgia,  235  U.  S.  651,  662,  59  L.  ed.  405, 
411,  P.U.R.1915A,  106,  35  Sup.  Ct.  Rep. 
214. 

Sugar  refineries  are  not  public  utilities; 
the  business  of  refining  sugar  is  not  affected 
with  a  public  interest. 

Cooley,  Const.  Lim.  6th  ed.  p.  736; 
Freund,  Pol.  Power,  §  373,  p.  381;  Munn  ▼. 
Illinois,  94  U.  S.  139,  140,  24  L.  ed.  89; 
People  V.  Budd,  117  N.  Y.  1,  5  L.R.A.  559,  15 
Am.  St.  Rep.  460,  22  N.  E.  670,  143  U.  S. 
532,  533,  544,  540-551,  36  L.  ed.  251,  252, 
255,  257,  258,  4  Inters.  Com.  Rep.  45,  12 
Sup.  Ot.  Rep.  468;  Brass  v.  North  Dakota, 
153  U.  S.  391,  404,  38  L.  ed.  757,  761,  4 
Inters.  Com.  Rep.  670,  14  Sup.  Ct.  Rep.  857; 
Millett  V.  People,  117  111.  294,  57  Am.  Rep. 
873,  7  N.  £.  631;  German  Alliance  Co.  v. 
Uwis,  233  U.  S.  406,  407,  412,  414-416,  428, 
429,  58  L.  ed.  1019,  1020,  1022-1024,  1028, 
1029,  L.R.A.1915C,  1189,  34  Sup.  Ct.  Rep. 
612. 

The  statute  denies  to  complainant  the 
equal  protection  of  the  laws,  and  therein 
violates  the  14th  Amendment  in  that,  while 
such  act  purports  to  regulate  the  business 
of  sugar  refining,  it  unreasonably  exempts 
from  such  regulation  certain  classes  of 
sugar  refiners. 

Connolly  v.  Union  Sewer  Pipe  Co.  184  U. 
S.  540,  46  L.  ed.  679,  22  Sup.  Ct.  Rep.  431 ; 
Cotting  V.  Kansas  City  Stock  Yards  Co. 
(Cotting  V.  Godard)  183  U.  S.  79,  46  L. 
ed.  92,  22  Sup.  Ct.  Rep.  30 ;  Gulf,  C.  A  S.  F. 
R.  Co.  V.  Ellis,  165  U.  S.  150,  159,  41  L.  ed. 
666,  669, 17  Sup.  Ct.  Rep.  255 ;  International 
Hanester  Co.  t.  Missouri,  234  U.  S.  199, 
215,  58  L.  ed.  1276,  1283,  52  L.R.A.(N.S.) 
525,  34  Sup.  Ct.  Rep.  859. 

The  exemption  invalidates  the  entire  act. 

Connolly  v.  Union  Sewer  Pipe  Co.  184 
U.  S.  540,  46  L.  ed.  679,  22  Sup.  Ct.  Rep. 
431. 

The  act  works  a  deprivation  of  the  liberty 
and  property  of  complainant,  and  a  denial 
to  it  of  the  equal  protection  of  the  laws 
in  creating  an  unreasonable  presumption  of 
guilt. 

Re  Opinion  of  Justices,  208  Mass.  619,  84 
L.R.A.(N.S.)    771,  94  N.  E.  1044. 

Mr.  Justice  Holmes  delivered  the  opin- 
ion of  the  court: 

This  is  a  bill  in  equity  brought  by  a 
New  Jersey  corporation,  the  i^pellee, 
against  the  inspector  of  sugar  refining,  the 
governor,  and  the  attorney  general  of 
Louisiana,  to  prevent  the  enforcement  of 
act  No.  10  of  the  extra  session  of  the  gen- 
eral assembly  of  that  state  for  1915.  The 
grounds  of  relief  are  the  commerce  clause 
and  the  14th  Amendment  of  the  Constitu- 
tion of  the  United  States. 
90S 


The  plaintiff  was  granted  a  preliminary 
injunction  by  three  judges  in  the  district 
court,  and  the  defendants  appealed.  229 
Fed.  284. 

A  summary  of  the  statute  is  as  follows: 
The  business  of  refining  sugar  is  declared 
to  be  impressed  with  a  public  interest  "by 
reason  of  the  nature  and  by  reason  of  the 
monopolization  thereof,"  and  on  that  foot- 
ing the  regulations  are  made.     After  pro- 
viding for  elaborate  reports  and  inspection 
of  books  by  the  inspector,  the  act  imposes 
for  the  benefit  of  the  inspection  fund  a  tax 
of  i  cent  for  every  350  pounds  of  granulated 
[81]  sugar  made.   It  then  makes  it  unlaw- 
ful to  buy  sugar  on  an  eo?  parte  test  of  qual- 
ity, etc,  and  proceeds  to  author  use  the  in- 
spector to  make  such  reasonable  regulations 
not  only  concerning  that,  but  affecting  any 
branch  of  the  business  of  sugar  refining,  as 
he  may  deem  proper  and  as  may  be  con- 
ducive to  the  public  interest,  and  to  the 
prevention  of  monopoly  in  the  business,  or 
to   the   protection   of  the  public  from   its 
consequences.      Then    come    the    provisions 
chiefly  in  issue  here.     By  §  7  **any  person 
engaged  in  the  business  of  refining  sugar 
within  this  state  who  shall  systematically 
pay  in  Louisiana  a  less  price  for  sugar  than 
he  pays  in  any  other  state  shall  be  prima 
facie  presumed  to  be  a  party  to  a  monopoly 
or  combination  or  conspiracy  in  restraint 
of  trade  and  commerce,  and  upon  conviction 
thereof  shall  be  subject  to  a  fine  of  $500  a 
day  for  the  period  during  which  he  is  ad- 
judged to  have  done  so;"  his  license  to  do 
business  in  the  state  is  to  be  revoked,  and 
any  foreign  corporation  (such  as  the  plain- 
tiff is)   is  to  be  ousted  from  the  state  and 
its  property  sold.     If  irreparable  injury  to 
the  public  interest  is  shown  in  such  a  ease, 
the  court  may  appoint  a  receiver  at  any 
stage  of  the  proceedings,  etc.     By  §  8,  if 
shown  by  affidavit  or  otherwise,  either  m 
limine  or  after  trial,  that  any  refinery  has 
been  closed  or  kept  idle  for  more  than  one 
year,  it  shall  be  presumed  to  have  been 
done  for  the  purpose  of  violating  this  act  or 
the  laws  against  monopoly,  etc.,  and  if  the 
counter  evidence  does  not  rebut  the  pre- 
sumption, the  court  shall  order  the  owner 
to  sell  the  refinery  within  six  months,  and, 
if  that  is  not  done,   shall  appoint  a  re- 
ceiver to  do  it  within  twelve  months.     la 
computing  the  year  of  idleness  any  plant 
shall  be  treated  as  idle  that  has  not  been 
operating  bona  fide.     By  §  9  in  suits  for 
ouster,  etc.,  upon  showing  by  the  state  that 
the  monopoly,  etc.,  are  detrimental  to  the 
public  welfare,  an  injunction  may  be  issued 
or  a  receiver  appointed,  after  a  hearing, 
subject  to  an  appeal  returnable  [82]  within 
five  days,  to  be  determined  within   forty 
days,  etc  By  §  10  a  fine  of  from  $50  to  $2,- 

S41  V.  8. 


1915. 


MoFARLAND  v.  AMERICAN  SUGAR  RBF.  CO. 


82-84 


500  a  day  is  imposed  for  yiolationB  of  the 
aet  not  otherwise  provided  for,  or  of  any  of 
the  regulations  promulgated  by  the  inspec- 
tor. By  §  11,  in  suits  under  the  act,  books, 
letters,  and  other  documents,  '*or  apparent 
copies  thereof,"  of  the  defendant,  shall  be 
given  effect  as  being  what  they  purport  to 
be  and  "as  establishing  the  facts  carried  on 
their  face"  unless  sufSciently  rebutted,  upon 
proof  of  their  having  been  in  the  possession 
or  control  of  the  defendant;  and  any  re- 
port of  any  legislative  committee  of  the 
state,  or  of  the  Senate  or  House  of  Repre- 
sentatives of  the  United  States,  or  of  any 
bureau-,  department,*  or  oommission  acting 
under  the  authority  either  of  the  state  or 
of  the  Senate  or  the  House  of  Representa- 
tives of  the  United  States,  and  the  records 
of  any  court  of  any  state,  or  of  the  United 
States,  are  made  prima  facie  evidence  of 
the  facts  set  forth  therein,  subject  to  re- 
buttal. In  conclusion,  by  §  15  the  business 
of  refining  sugar  is  defined  to  be  "that  of 
any  concern  that  buys  and  refines  raw  or 
other  sugar  exclusively,  or  that  refines  raw 
or  other  sugar  from  sugar  taken  on  toll,  or 
that  buys  or  refines  more  raw  or  other  sugar 
than  the  aggregate  of  the  sugar  produced  by 
it  from  cane  grown  and  purchased  by  it." 

Besides  the  allegations  that  bring  the 
plaintiff  within  the  purview  of  the  act,  the 
claims  of  the  protection  of  the  Constitu- 
tion, and  the  invocation  of  the  principle 
of  £x  parte  Young,  209  U.  S.  123,  52  L. 
ed.  714,  13  LJl.A.(N.S.)  932,  28  Sup.  Ct. 
Rep.  441,  14  Ann.  Cas.  764,  for  equitable 
relief,'  the  bill  sets  forth  some  facts  that 
throw  special  light  upon  the  case.  First, 
for  the  bearing  of  §  8,  it  shows  that  former- 
ly the  plaintiff  purchased  a  consolidated 
refinery  called  the  Louisiana  Refinery,  in- 
creased its  capacity  to  2,500,000  pounds 
daily,  and  worked  it  until  1909.  It  then 
built  at  a  cost  of  about  six  million  dollars 
a  new  refinery  at  Chalmette,  with  a  daily 
melting  capacity  of  3,000,000  pounds,  since 
increased  to  3,500,000.  It  then  closed  the 
Louisiana  [83]  Refinery,  as  it  could  not  dis- 
tribute from  New  Orleans  more  refined 
sugar  than  could  be  made  at  Chalmette. 
The  machinery  of  the  Louisiana  Refinery  is 
comparatively  antiquated  and  could  not  be 
operated  economically,  although,  in  case  of 
the  destruction  of  the  Chalmette  plant,  it 
could  be  used  as  a  substitute  at  consider- 
able expense  and  after  some  delay.* 

As  to  the  presumption  created  from  the 
systematic  paying  in  Louisiana  a  less  price 
for  sugar  than  is  paid  in  any  other  state, 
the  bill  alleges  that  the  plaintiff  purchases 
on  an  avefage<  less  than  one  half  of  the 
Louisiana  sugar  crop,  of  which  half  over  a 
third  is  shipped  as  bought,  to  the  plaintiff's 
northern  refineries,  so  that  not  much  over 
•0  Ii.  ed. 


80  per  cent  is  nielted  at  CSialmette.  In  fact, 
only  a  comparatively  small  portion  of  the 
plaintiff's  meltings  in  Louisiana  is  of  sugar 
produced  in  Louisiana,  the  remainder  having 
been  imported.  The  chief  port  for  the  re- 
ceipt of  raw  sugar  imported  is  New  York, 
at  or  near  which  there  are  seven  large  re- 
fineries now  in  operation.  The  Louisiana 
sugar  customarily  has  been  brought  on  the 
market  in  November  and  December,  during 
which  months  it  is  pressed  for  sale  in 
amounts  far  in  excess  of  the  requirements 
of  all  the  refineries  in  the  state.  Pur- 
chasers therefore  had  either  to  ship  a  part 
north,  or  to  store  it,  with  consequent  loss 
from  deterioriation  and  in  weight,  interest, 
and  cost  of  storage  and  insurance,  and  at 
the  risk  of  a  decline  in  the  market.  These 
elements  necessarily  affect  the  price,  which 
cannot  be  higher  than  that  in  the  ultimate 
market,  less  the  cost  of  transportation,  and 
which  has  been  approximately  that.  Fur- 
thermore,  the  period  of  storage  is  a  time 
when  the  market  for  raw  sugar  generally 
declines,  and  the  price  of  refined  sugar 
follows  that  of  raw,  to  the  refiner's  loss. 

Formerly  a  large  part  of  the  sugar  manu- 
factured in  Louisiana  by  the  plaintiff  was 
sold  in  the  Middle  West  and  in  Minnesota, 
Iowa,  the  Dakotas,  etc.,  and  it  was  to  meet 
[84]  that  market  that  the  Chalmette  refin- 
ery was  built.  But  the  great  and  rapid  in- 
arease  in  the  production  of  beet  sugar, 
which  now  forms  one  sixth  of  all  the  sugar 
consumed  in  the  United  States  and  is  sold 
at  prices  below  those  of  cane  sugar,  has 
driven  the  plaintiff  out  of  those  markets  to 
a  great  extent.  The  result  frequently  has 
been  that  the  plaintiff  has  derived  little  or 
no  advantage  from  the  purchase  of  Louisi- 
ana sugar,  even  when  bought  at  a  less  price 
than  that  in  New  York  on  the  same  day. 

The  bill  also  shows  fully  that  the  plaintiff 
melts  solely  on  its  own  account,  so  that  its 
only  contact  with  the  public  is  as  a  buyer 
of  raw  and  a  seller  of  refined  sugar,  and  its 
business  is  affected  with  a  public  interest 
not  otherwise  than  as  any  other  business 
is,  according  to  its  importance  and  size. 
It  also  shows  that  much  the  greater  part 
of  its  Chalmette  conunerce,  both  in  purchase 
and  sale,  is  foreign  or  among  the  states. 
There  are  other  allegations  besides  those 
that  we  have  summed  up,  but  enough  has 
been  stated  to  disclose  the  plaintiff's  case. 

The  answer  alleges  that  the  plaintiff  is 
a  monopoly  and  combination  in  restraint 
of  trade  in  buying,  refining,  and  selling 
sugar  throughout  the  United  States,  and 
completely  controls  the  sugar  trade  in 
Louisiana,  and  sets  forth  a  long  series  of 
letters'  thought  to  show  efforts  to  obtain 
and  keep  such  control.  It  obliquely  inti- 
mates that  the  plaintiff  can  fix  pri'^ 


84-87                        SUPREME  COURT  OF  THE  UNITED  STATE&  Cot.  Tbuc, 

oocasion  even  in  the  New  York  market,  ad-  prevent  it  from  assarting  them  in  the  only 
mitted  to  be  the  ruling  one  in  the  United  practicable  and  adequate  way. 
States.  It  alleges  that  suits  have  been  [86]  The  statute  bristles  with  severities 
brought  against  the  plaintiff  by  sugar  plant-  that  touch  the  plaintiff  alone,  and  raises 
ers,  under  the  Sherman  act  [26  Stat,  at  L.  many  questions  that  would  have  to  be  an- 
209,  chap.  647,  Comp.  SUt.  1913,  §  8820],  swered  before  it  could  be  sustained.  We 
for  a  total  of  near  $200,000,000,  and  that  deem  it  sufficient  to  refer  to  those  that  were 
after  the  exposure  of  the  plaintiff's  crimi-  mentioned  by  the  district  court:  a  classifl- 
nality  in  a  suit  by  the  United  States  that  oation  which,  if  it  does  not  confine  itself  to 
seems  to  have  come  to  nothing,  this  law  the  American  Sugar  Refinery,  at  least  is 
was  passed.  All  of  the  foregoing,  the  main  arbitrary  beyond  possible  justice,  and  a  cre- 
portion  of  the  answer,  is  offered  as  ground  ation  of  presumptions  and  special  powers 
for  denying  to  the  plaintiff  any  equitable  against  it  that  can  have  no  foundation  ex- 
relief,  cept  the  intent  to  destroy.  As  to  the  class- 
In  the  alternative,  if  the  plaintiff  has  a  ification,  if  a  powerful  rival  of  the  plain- 
standing  in  [86]  equity,  the  answer  denies  tiff  should  do  no  refining  within  the  state, 
the  plaintiff's  explanation  of  the  idleness  of  it  might  systematically  pay  a  less  price  for 
the  Louisiana  Refinery  and  avers  that  the  sugar  in  iLouisiana  than  it  paid  elsewhere 
statement  that  it  buys  less  than  half  the  with  none  of  the  consequences  attached  to 
Louisiana  crop  is  deceptive,  and  that  it  doing  so  in  the  plaintiff's  case.  So  of  any- 
bnys  70  per  cent  of  the  raw  sugar  sold  to  one  who  purchases  but  does  not  refine.  So 
refiners.  It  alleges  that  the  shipping  of  raw  of  any  concern  that  does  not  buy  and  refine 
sugar  North  is  due  to  artificial  conditions  more  sugar  "than  the  aggregate  of  the  sugar 
created  by  the  plaintiff,  and  that  but  for  produced  by  it  from  cane  grown  and  pur- 
them  the  whole  would  be  "handled  locally."  chased  by  it,"  as  easily  might  happen  with 
It  also  alleges  that  the  difference  .between  a  combination  of  planters,  such  as  the  an- 
the  Louisiana  and  the  New  York  price  has  swer  gives  us  to  understand  has  been  at- 
been  made  less  by  the  plaintiff  since  1911,  tempted  heretofore. 

in  order  to  prevent  a  repetition  of  the  one  As  to  the  presumptions,  of  course  the 
successful  combination  made  by  the  plant-  legislature  may  go  a  good  way  in  raising 
ers.  Finally  it  alleges  that  the  shipments  one  or  in  changing  the  burden  of  proof,  but 
to  New  York  arrive  when  there  is  no  sugar  there  are  limits.  It  is  "essential  that  there 
on  hand,  or  when  the  first  sugar  from  Cuba  shall  be  some  rational  connection  between 
is  coming  in,  and  enable  the  plaintiff  to  in-  the  fact  proved  and  the  ultimate  fact  pre- 
flnence  downward  the  price  of  the  Cuban  sumed,  and  that  the  inference  of  one  fact 
sugar  that  it  needs.  Most  of  the  allega-  from  proof  of  another  shall  not  be  so  un- 
tions  of  the  bill  are  denied,  and  it  is  said  reasonable  as  to  be  a  purely  arbitrary  man- 
that  the  rush  to  sell  in  November  and  De-  date."  Mobile,  J.  &  K.  C.  R.  Co.  ▼.  Tumip- 
cember  would  have  found  a  market  but  for  seed,  219  U.  S.  35,  43,  55  L.  ed.  78,  80,  32 
the  plaintiff's  wrongful  deeds.  L.R.A.(N.S.)  226,  31  Sup.  Ct.  Rep.  136, 
The  answer  is  signed  by  the  attorney  gen-  Ann.  Cas.  1912A,  463,  2  N.  C.  C.  A.  243. 
eral  of  the  state;  and  if  he  were  authorized  The  presumptioii  created  here  haa  no  rela- 
to  interpret  the  meaning  of  the  other  voice  tion  in  experience  to  general  facts.  It  has 
of  the  state  heard  in  act  No.  10,  would  seem  no  foundation  except  with  tacit  reference  to 
to  import  that  the  latter  was  a  bill  of  pains  the  plaintiff.  But  it  is  not  wiUiin  the  prov- 
and  penalties  disguised  in  general  words,  ince  of  a  legislature  to  declare  an  individual 
For  the  first  division  of  the  answer  shows  guilty  or  presumptively  guilty  of  a  crime, 
that  the  plaintiff  is  the  only  one  to  whom  ^^  ^«  statute  had  said  what  it  was  argued 
the  act  could  apply,  and  that  the  statute  *^»*  it  means,  that  the  plaintiff's  business 
was  passed  in  view  of  the  plaintiff's  con-  ^"  f  ^u^^  with  a  public  mterest  by  rca- 
J  i.  A  i.  xi.  Ti.  «  A.U  son  of  the  plaintiff's  monopolixmg  it,  and 
duct,  to  meet  it.  It  is  upon  the  assump-  .,  .  ,.  ,  *^  *i.  «i«:«i.:ir  fu^.,!^  i^  «•;«. 
i.i  #  XI-  1  xi.  #  X  XI-  X  XV  X  •  that  therefore  the  plaintiff  should  be  prima 
tion  of  the  latter  fact  that  the  argument  is  ^^.^  presumed  guilty  upon  proof  [87]  that 
pressed  that  the  plaintiff  has  no  standmg  .^  ^^  carrying  on  business  as  it  does,  we 
in  equity,  since  it  made  the  legislation  g^ppose  that  no  one  would  contend  that  the 
necessary.  If  the  connection  were  omitted,  plaintiff  was  given  the  equal  protection  of 
it  would  be  so  much  the  worse  for  the  con-  ^j^^  j^ws.  We  agree  with  the  court  below 
stitutionality  of  the  act.  We  deem  it  that  the  act  must  fall  as  a  whole,  as  it 
enough  to  say  that  neither  that  supposed  falls  in  the  sections  without  ^hich  there  is 
connection  nor  the  general  intimations  of  no  reason  to  suppose  that  it  would  have 
the  plaintiff's  wickedness  in  the  answer  de-  been  passed. 

prJve   it   of  its    constitutional    rights,   or  Decree  affirmed* 

004  S«l  17*  ^ 


1015. 


NORTHERN  P.  R.  CO.  v.  WAIX. 


87 


NORTHERN    PACIFIC    RAILWAY    COM- 
PANY, Plff.  in  Err., 

V. 

R.    P.    WALL,    as    Administrator    of    the 
Estate  of  R.  J.  Wall,  Deceased. 

(See  S.  C.  Reporter's  ed.  87-98.) 

Error  to  state  c»art  —  Federal  qnea* 
tion  —  how  raised. 

1.  The  question  whether  proper  effect 
was  given  to  the  interstate  commerce  act 
of  February  4,  1887  (24  SUt.  at  L.  379, 
chap.  104,  Comp.  Stat.  1913,  §  8563),  and 
its  amendments,  in  interpreting  a  stipula- 
tion, in  a  bill  of  lading  for  an  interstate 
shipment  requiring  notice  of  claims  for 
damages  to  be  given  to  the  carrier's  officers 
or  station  agents  as  excluding  officers  or 
station  agents  of  connecting  carriers, — is 
fairly  presented,  so  as  to  sustain  a  writ 
of  error  from  the  Federal  Supreme  Court 
to  review  a  judgment  of  the  highest  state 
court  adjudging  the  stipulation  to  be  no 
defense  to  the  initial  carrier  when  sued 
for  injuries  to  the  shipment,  being  unrea- 
sonable and  inoperative,  because  no  officer 
or  agent  primarily  employed  by  the  initial 
carrier  was  accessible  at  destination,  where 
a  through  bill  of  lading  was  issued  under 
the  Federal  legislation,  the  pleadings  show 
that  its  application  was  invoked,  and  in 
the  answer,  as  also  in  the  instructions  given 
at  the  defendant  carrier's  request,  there 
was  a  distinct  assertion  that  notice  was 
not  given  to  any  officer  or  station  agent  of 
the  defendant,  or  to  any  officer  or  station 
agent  of  the  connecting  carrier,  which 
means  that  the  defendant  was  proceeding 
upon  the  theory  that  the  stipulation,  when 
read  in  connection  with  the  Federal  stat- 
utes, contemplated  and  recognized  that  no- 
tice to  an  officer  or  agent  of  the  connect- 
ing carrier  would  suffice. 

[For  other  cases,  see  Api>eal  and  Error,  116^ 
1248,  in   Digest   Sup.   Ct.   1908.1 

Carriers  —  notice  of  claim  —  connect- 
ing carriers. 

2.  Notice  to  an  officer  or  station  a^ent 
of  the  connecting  carrier  at  final  destina- 
tion must  be  deemed  to  satisfy  the  re- 
quirement of  a  stipulation  in  a  through 
bill  of  lading  for  an  interstate  shipment  of 
cattle,  issued  by  the  initial  carrier,  that 
the  shipper,  as  a  condition  precedent  to  his 
right  to  recover  for  any  injury  to  the  cattle 
while  in  transit,  shall  give  notice  in  writ- 
ing of  his  claim  to  some  officer  or  station 
agent  "of  said  company"  before  the  cattle 
are  removed  from  the  place  of  destination 
or  mingled  with  other  stock,  in  view  of 
the  Carmack  amendment  of  June  29,  1906 


(34  Stat,  at  L.  584,  chap.  3591,  Comp. 
Stat.  1913,  §  8563),  under  which  the  bill 
of  lading  was  issued,  making  the  connect- 
ing carrier  the  agent  of  the  receiving  car- 
rier for  the  purpose  of  completing  the 
transportation  and  delivering  the  property, 
and  of  a  further  stipulation  in  the  bill  of 
lading  that  its  terms  and  conditions  shall 
inure  to  the  benefit  of  any  connecting  car- 
rier over  whose  line  the  cattle  shall  pass. 
[For  other  cases,  see  Carriers,  II.  b,  7,  b; 
XL   c.  In  Digest  Sup.  Ct   1908.1 

[No.  360.] 

Argued  December  1,  1915.     Decided  April 

24,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Montana  to  review  a  judg- 
ment which  affirmed  a  judgment  of  the 
District  Court  of  Gallatin  County,  in  that 
state,  in  favor  of  plaintiff  in  an  action 
against  an  initial  carrier  for  injuries  to  an 
interstate  shipment  of  live  stock.  Reversed 
and  remanded  for  further  proceedings. 

See  same  case  below,  50  Mont.  122,  145 
Pac.  291. 

The  facts  are  stated  in  the  opinion. 

Mr.  Charles  Donnelly  argued  the  cause 
and  filed  a  brief  for  plaintiff  in  error: 

The  court  erred  in  holding  that  notice 
to  an  agent  of  the  Burlington  Company 
would  not  have  been  effective  for  any  pur- 
pose. 

Atlantic  Oast  Line  R.  Co.  t.  Riverside 
Mills,  219  U.  S.  186, -55  L.  ed.  167,  31 
L.RJ^.(N.S.)  7,  31  Sup.  Ct.  Rep.  164;  Qal- 
▼eston,  H.  &  S.  A.  R.  Co.  v.  Wallace,  223 
U.  S.  481,  56  L.  ed.  516,  32  Sup.  Ct.  Rep. 
205;  Kansas  City  Southern  R.  Co.  t.  Carl, 
227  U.  S.  639,  648,  57  L.  ed.  683,  686,  33 
Sup.  Ct.  Rep.  391;  Chicago,  R.  I.  ft  G.  R. 
Co.  V.  Linger,  —  Tex.  Civ.  App.  — ,  156  S. 
W.  298;  Overton  v.  Chicago,  R.  I.  ft  G.  R. 
Co.  —  Tex.  Civ.  App.  — ,  160  S.  W.  Ill; 
Galveston,  H.  k  S.  A.  R.  Co.  y.  Itule,  -— 
Tex.  Oiv.  App.  — ,  172  S.  W.  1123. 

Considering  the  character  of  the  ship- 
ment, and  that  it  was  being  carried  in  mid- 
winter from  the  Rocky  mountains  to  Chi- 
cago, the  requirement  of  the  bill  of  lading 
respecting  notice  was  surely  not  unreason- 
able, and  the  courts  have  almost  uniformly 
said  so. 

St.  Louis  ft  S.  F.  R.  Co.  y.  Zickaloose,  39 
Okla.  302,  135  Pac.  406,  6  N.  C.  C.  A.  717 ; 


Note. — On  the  general  subject  of  writs  of 
error  from  United  States  Supreme  Court 
to  state  courts — see  notes  to  Martin  y.  Hun- 
ter, 4  L.  ed.  U.  S.  97;  Hamblin  y.  Western 
Land  Co.  37  L.  ed.  U.  S.  267 ;  Re  Buchanan, 
39  L.  ed.  U.  S.  884;  and  Kipley  v.  Illinois, 
42  L.  ed.  U.  S.  998. 

On  what  adjudications  of  state  courts  can 
be  brought  up  for  review  in  the  Supreme 
•0  Ii.  ed. 


Court  of  the  United  States  by  writ  of  error 
to  those  courts — see  note  to  Ax>ex  Transp. 
Co.  v.  Garbade,  62  L.Rj^.  513. 

On  how  and  when  questions  must  be 
raised  and  decided  in  a  ^te  court  in  order 
to  make  a  case  for  a  writ  of  error  from  the 
Supreme  Court  of  the  United  States — see 
no&  to  Mutual  L.  Ins.  Co.  v.  McGrew,  63 
LJELA.  33. 


88,  89 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbem, 


Atchison,  T.  &  S.  F.  R.  Ck>.  v.  Baldwin,  53 
Colo.  416,  128  Pac.  449 ;  Mobile  &  0.  R.  Co. 
V.  Brownsville  Livery  k.  Live  Stock  Co.  123 
Tenn.  298,  130  S.  W.  788;  Southern  R.  Co. 
T.  Tollerson,  129  Ga.  647,  59  S.  E.  799; 
Hatch  v.  Minneapolis,  St.  P.  k  S.  Ste.  M. 
R.  Co.  15  N.  D.  490,  107  N.  W.  1087 ;  Atchi- 
son,  T.  &  S.  F.  R.  Co.  v.  Ooffin,  13  Ariz. 
144,  108  Pac.  480;  Central  of  Georgia  R. 
Co.  V.  Henderson,  152  Ala.  203,  44  So.  542; 
McElvain  v.  St.  Louis  &  S.  F.  R.  Co.  151 
Mo.  App.  126,  131  S.  W.  736;  Cooke  v. 
Northern  P.  R.  Co.  22  N.  D.  266,  133  N.  W. 
303. 

Mr.  OThomas  J.  Walsh  argued  the  cause, 
and,  with  Mr.  Walter  Aitken,  filed  a  brief 
for  defendant  in  error: 

The  assignments  of  error,  in  the  light  of 
the  record,  present  no  Federal  question  in 
view  of  which  the  revisory  power  of  this 
court  can  be  invoked. 

Commercial  Pub.  Co.  v.  Beckwith,  188  U. 
S.  567,  47  L.  ed.  598,  23  Sup.  Ct.  Rep.  382 ; 
Arkansas  Southern  R.  Co.  v.  German  Nat. 
Bank,  207  U.  S.  270,  52  L.  ed.  201,  28  Sup. 
Ct.  Rep.  78;  Western  U.  Teleg.  Co.  v.  Wil- 
son, 213  U.  S.  52,  53  L.  ed.  693,  29  Sup. 
Ot.  Rep.  403;  Say  ward  v.  Denny,  158  U.  S. 
489,  39  L.  ed.  1065,  15  Sup.  Ct.  Rep.  975; 
Missouri,  K.  &  T.  R.  Co.  v.  Harriman,  227 
U.  S.  657,  57  L.  ed.  690,  33  Sup.  Ct.  Rep. 
397;  Chrisman  v.  Miller,  197  U.  S.  313, 
49  L.  ed.  770,  25  Sup.  Ct.  Rep.  468;  King  v. 
West  Virginia,  216  U.  S.  92,  54  L.  ed.  396, 
30  Sup.  Ct.  Rep.  225;  Clipper  Min.  Co.  v. 
Eli  Min.  &  Land  Co.  194  U.  S.  220,  48  L. 
ed.  944,  24  Sup.  Ct.  Rep.  632;  Smiley  v. 
Kansas,  196  U.  S.  447,  49  L.  ed.  546,  25 
Sup.  Ct.  Rep.  289. 

The  contentions  upon  which  it  is  claimed 
a  Federal  question  depends  are  so  appar- 
ently unfounded  as  not  to  require  further 
argument. 

Parker  v.  McLain,  237  U.  S.  469,  59  L. 
ed.  1051,  35  Sup.  Ct.  Rep.  632. 

The  proposition  urged  here  was  not  raised 
by  the  record. 

Mutual  L.  Ins.  Do.  v.  McGrew,  188  U.  S. 
291-308,  47  L.  ed.  480-485,  63  L.R.A.  33, 
23  Sup.  Ct.  Rep.  375;  Adams  v.  Russell,  229 
U.  S.  353,  57  L.  ed.  1224,  33  Sup.  Ct.  Rep. 
846. 

The  cas6  as  to  notice  turned  on  a  ques- 
tion of  pleading. 

4  Elliott,  Railroads,  1512;  Houtz  v. 
Union  P.  R.  Co.  33  Utah,  175,  17  L.R.A. 
(N.S.)  628,  93  Pac.  439;  Missouri  P.  R. 
Co.  V.  Harris,  67  Tex.  166,  2  S.  W.  574. 

Mr.  Justice  Van  Deranter  delivered  the 
opinion  of  the  court: 

This  was  an  action  to  recover  for  in- 
juries to  cattle  being  transported  in  inter- 
906 


state  commerce,  the  gravamen  of  the 
complaint  being  that  the  cattle  were  un- 
reasonably delayed  in  transit,  and  conse- 
quently were  greatly  reduced  in  weight  and 
emaciated  in  appearance. 

The  cattle  were  shipped  in  January,  1012, 
from  Belgrade,  Montana,  to  the  Union 
Stock  Yards  at  Chicago  over  two  connect- 
ing railroads, — ^the  Northern  Pacific  and 
the  Burlington, — ^under  a  through  bill  of 
lading  issued  by  the  initial  carrier.  The 
shipment  was  at  a  reduced  rate  based  upon 
the  stipulations  in  the  bill  of  lading.  The 
rate  and  the  bill  of  lading  had  been  regu- 
larly established  and  put  in  force  und^r  the 
interstate  commerce  act  and  its  amend- 
ments. One  stipulation  was  to  the  effect 
that  the  shipper,  as  a  condition  precedent 
to  his  right  to  recover  for  any  injury  to 
the  cattle  while  in  transit,  should  give 
notice  in  writing  of  his  claim  to  some  officer 
or  station  agent  "of  said  company"  before 
the  cattle  were  removed  from  the  place  of 
destination  or  mingled  with  other  stock; 
and  another  was  to  the  effect  that  the 
terms  of  the  bill  of  lading  should  inure 
to  the  benefit  of  any  connecting  carrier  over 
whose  line  the  cattle  should  [80]  pass  in 
the  course  of  their  transportation.  By  an 
indorsement  on  the  bill  of  lading  the  Bur- 
lington Company  was  designated  as  the  con- 
necting carrier.  The  shipment  was  accom- 
panied by  an  attendant  selected  by  the 
shipper  and  authorized  to  represent  him  in 
all  matters  pertaining  to  the  general  care 
and  handling  of  the  cattle.  Upon  reaching 
their  destination  the  cattle  were  delivered 
by  the  Burlington  Company  to  an  agent  of 
the  shipper,  and  were  sold,  removed,  and 
mingled  with  other  stock  before  any  notice 
was  given  of  a  claim  for  injury  to  them 
while  in  transit. 

This  action  was  brought  against  the  ini- 
tial carrier, — ^the  Northern  Pacific  Com- 
pany,— ^and  the  damages  sought  were  for 
alleged  injuries  to  the  cattle  while  passing 
over  both  roada  In  its  answer  the  defend- 
ant set  up  the  stipulations  before  named; 
insisted  that  they  were  established  under 
the  interstate  commerce  act,  and  that  a 
Montana  statute  invalidating  such  stipula- 
tions was,  as  applied  to  bills  of  lading  in 
interstate  commerce,  in  conflict  with  the 
congressional  enactment  and  void;  alleged 
that  no  notice  of  any  claim  for  injury  to 
the  cattle  had  been  given  "to  any  officer 
or  station  agent  of  the  defendant,  or  to  any 
officer  or  station  agent  of  the  connecting 
carrier,"  until  after  the  cattle  had  been 
removed  from  the  place  of  destination  and 
mingled  with  other  stock,  and  claimed  that 
by  reason  of  the  failure  to  give  the  stipu- 
j  lated  notice  the  plaintiff  was  not  entitled 
to  recover.    In  his  reply  the  plaintiff,  white 

S41  V.  8. 


1016. 


NORTHERN  P.  R.  CO.  v.  WAIX. 


80-02 


expressly  admitting  that  he  had  not  com- 
plied with  the  stipulation  relating  to  notice, 
denied  that  it  was  established  or  efTcctive 
under  the  interstate  commerce  act,  insisted 
that  it  was  unreasonable  and  in  contraven- 
tion of  the  Montana  statute,  alleged  that 
compliance  with  the  stipulation  had  been 
waived  by  the  defendant,  and  set  forth  at 
length  and  invoked  the  Carmack  amendment 
to  the  interstate  commerce  act  in  support 
of  the  effort  to  recover  from  the  initial  car-' 
rier  [90]  for  the  injuries  occurring  while 
the  cattle  were  on  the  line  of  the  connecting 
carrier.  Upon  the  trial,  and  after  the  evi- 
dence was  concluded,  the  defendant  moved 
for  a  directed  verdict  in  its  favor  upon  the 
ground  that  the  contract  embodied  in  the 
bill  of  lading  was  valid,  that  confessedly 
the  notice  ''required  by  the  contract"  was 
not  given,  and  that  there  was  no  evidence 
showing  a  waiver  of  the  notice.  The  mo- 
tion was  denied  upon  the  ground  that,  un- 
der the  evidence,  the  question  of  waiver 
was  for  the  jury,  and  an  exception  was  re- 
served by  the  defendant.  At  its  request 
the  court,  in  charging  the  jury,  said:  "One 
of  the  defenses  relied  upon  by  the  defend- 
ant is  that  no  notice  of  claim  for  damages 
for  loss  or  injury  to  the  stock  in  question 
was  given  by  the  plaintiff  to  the  defendant 
or  to  the  connecting  carrier,  before  the  fttock 
was  removed  from  the  place  of  destination 
or  mingled  with  other  stock.  This  provi- 
sion of  said  contract  is  a  reasonable  one, 
binding  upon  the  plaintiff,  and,  under  the 
admissions  in  his  reply,  prevents  him  from 
recovering  in  this  action,  unless  you  find 
that  .  .  .  defendant  expressly  or  im- 
pliedly by  its  conduct  waived  the  giving  of 
said  notice  in  accordance  with  tills  pro- 
vision of  the  contract."  The  jury,  evident- 
ly resolving  the  question  of  waiver  against 
the  defendant,  returned  a  verdict  for  the 
plaintiff,  and  the  judgment  thereon  was 
affirmed  by  the  supreme  court  of  the  state. 
50  Mont.  122,  145  Pac.  291. 

From  what  has  been  said  it  is  apparent 
not  only  that  the  damages  sought  were  for 
injuries  occurring  while  the  cattle  were 
being  transported  in  interstate  commerce, 
but  also  that  both  parties  relied  upon  the 
interstate  commerce  act  and  its  amend- 
ments,— the  plaintiff  to  sustain  his  right  to 
recover  for  the  injuries  on  the  line  of  the 
connecting  carrier,  and  the  defendant  to 
sustain  its  defense  based  upon  the  stipula- 
tions in  the  bill  of  lading.  And  it  is  plain 
that  the  trial  court  gave  controlling  effect 
to  that  act  and  its  amendments,  for  other- 
wise the  instruction  [01]  upholding  the 
validity  of  the  stipulation  for  notice  could 
not  have  been  given,  in  the  presence  of  the 
Montana  statute  (Laws  1909,  chap.  138) 
declaring  such  a  stipulation  void. 
••  Ii.  ed. 


The  supreme  court,  passing  the  question 
whether  notice  had  been  waived,  interpreted 
the  stipulation  as  requiring  that  the  notice 
be  given  to  an  officer  or  station  agent  pri- 
marily employed  by  the  Northern  Pacific 
Company,  and  thereby  excluding  notice  to 
an  officer  or  station  agent  of  the  Burling- 
ton Company,  and  then  held  the  stipulation 
unreasonable  and  inoperative  because  no 
officer  or  agent  primarily  employed  by  the 
Northern  Pacific  Company  was  accessible 
at  the  place  of  destination.  Whether  in 
so  interpreting  the  stipulation  that  court 
gave  proper  effect  to  the  interstate  com- 
merce act  and  its  amendments  is  the  Fed- 
eral question  pressed  upon  our  attention, 
and  we  think  it  is  fairly  presented  by  the 
record.  The  shipment  being  interstate,  that 
legislation  was  controlling;  the  through 
bill  of  lading  was  issued  under  it ;  the  plead- 
ings show  that  its  application  was  invoked; 
and  in  the  answer,  as  also  in  the  instruc- 
tion given  at  the  defendant's  request,  there 
was  a  distinct  assertion  that  notice  was  not 
given  "to  any  officer  or  station  agent  of  the 
defendant,  or  to  any  officer  or  station  agent 
of  the  connecting  carrier,"  which  meant  that 
the  defendant  was  proceeding  upon  the 
theory  that  the  stipulation,  when  read  in 
connection  with  the  Carmack  amendment, 
contemplated  and  recognized  that  notice 
to  an  officer  or  agent  of  the  connecting  car- 
rier— ^the  Burlington  Company — would  suf- 
fice. 

As  this  court  often  has  held,  the  laws  in 
force  at  the  time  and  place  of  the  making 
of  a  contract,  and  which  affect  its  validity, 
performance,  and  enforcement,  enter  into 
and  form  a  part  of  it,  as  if  they  were  ex- 
pressly referred  to  or  incorporated  in  its 
terms.  Von  Hoffman  v.  Quincy,  4  Wall. 
535,  550,  18  L.  ed.  408,  409;  Walker  v. 
Whitehead,  16  Wall.  314,  317,  21  L.  ed.  367, 
358;  Edwards  v.  [92]  Kearzey,  96  U.  S. 
595,  601,  24  L.  ed.  793,  796.  A  bill  of  lading 
is  a  contract  and  within  this  rule.  The  Car- 
mack amendment  to  the  interstate  com- 
merce act  (§  7,  chap.  3591,  34  Stat,  at  L. 
584,  595,  Comp.  Stat.  1913,  §§  8563,  8592), 
which  was  in  force  when  this  bill  of  lading 
was  issued,  directs  a  carrier  receiving  prop- 
erty for  interstate  transportation  to  issue  a 
through  bill  of  lading  therefor,  although  the 
place  of  destination  is  on  the  line  of  an- 
other carrier;  subjects  the  receiving  carrier 
to  liability  for  any  injury  to  the  property 
caused  by  it  or  any  other  carrier  in  the 
course  of  the  transportation,  and  requires 
a  connecting  carrier  on  whose  line  the  prop- 
erty is  injured  to  reimburse  the  receiving 
carrier  where  the  latter  is  made  to  pay  for 
such  injury.  Thus,  under  the  operation  of 
the  amendment,  the  connecting  carrier  be- 
I  comes  the  agent  of  the  receiving  caxT\«t  \q»t 


02-94 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Ooi.  Tkk.. 


the  purpose  of  completing  the  transporta- 
tion and  delivering  the  property.  Atlantic 
Ck)ast  Line  R.  Co.  v.  Riverside  Mills,  219 
U.  S.  186,  196,  206,  65  L.  ed.l67,  178,  182, 
31  L.R.A.(N.S.)  7,  31  Sup.  Ct.  Rep.  164^ 
Galveston,  H.  k  S.  A.  R.  Co.  v.  Wallace, 
223  U.  S.  481,  491,  66  L.  ed.  616,  623,  32 
Sup.  Ct.  Rep.  205.  This  bill  of  lading  was 
issued  under  that  statute  and  should  be 
interpreted  in  the  light  of  it.  Cleveland, 
C.  C.  &  St.  L.  R.  Co.  V.  Dettlebach,  239  U. 
8.  588,  593,  ante,  453,  457,  36  Sup.  Ct.  Rep. 
177.  The  shipment  was  to  pass  over  both 
roads  in  reaching  its  destination;  the  de- 
livery at  that  place  was  to  be  made,  as 
in  fact  it  was,  by  an  officer  or  station  agent 
of  the  connecting  carrier;  and  the  stipu- 
lated notice  was  to  be  given  before  the 
cattle  were  removed  from  the  place  of  desti- 
nation or  mingled  with  other  stock;  that  is, 
while  it  was  yet  possible  from  an  inspection 
of  them  to  ascertain  whether  the  claim  of 
injury,  if  any,  was  well  founded.  In  these 
circumstances  it  seems  plain  that  the  stipu- 
lation meant  and  contemplated  that  the 
notice  might  be  given  at  the  place  of  desti- 
nation to  an  officer  or  station  agent  of  the 
connecting  carrier,  and  that  notice  to  it,  in 
view  of  its  relation  to  the  initial  carrier, 
should  operate  as  notice  to  the  latter.  This 
interpretation  treats  the  stipulation  as 
designed  to  be  fair  to  both  shipper  and 
carrier,  permits  it  to  serve  a  useful  purpose, 
and  gives  [03]  due  effect  to  the  statute  un- 
der which  it  was  issued.  True,  the  words 
"said  company"  in  the  stipulation,  if  read 
only  in  connection  with  an  introductory 
sentence  in  the  bill  of  lading,  would  seem  to 
refer  to  the  initial  carrier  alone,  but  when 
they  are  read  in  connection  with  the  statute 
and  other  parts  of  the  bill  of  lading,  includ- 
ing the  provision  that  its  terms  and  condi- 
tions "shall  inure  to  the  benefit  of"  any  con- 
necting carrier,  it  is  apparent  that  they  em- 
brace the  carrier  making  the  delivery  as 
well  as  the  initial  carrier,  especially  as  the 
former  is,  in  legal  contemplation,  the  agent 
of  the  latter. 

The  act  of  March  4,  1916,  chap.  176,  38 
Stat,  at  L.  1196,  altering  the  terms  of  the 
Carmack  amendment,  is  without  present 
bearing,  because  passed  long  after  this  ship- 
ment was  made. 

We  are  of  opinion  that  the  Supreme  Court 
of  the  State  failed  to  give  proper  effect  to 
the  Carmack  amendment  in  interpreting  the 
bill  of  lading,  and  that  the  judgment  should 
be  reversed  and  the  cause  remanded  for  fur- 
ther proceedings  not  inconsistent  with  this 
opinion. 

Judgment  reversed. 
0OS 


Mr.  Justice  McReynolds,  dissenting: 

For  two  reasons  I  am  unable  to  agree 
with  the  opinion  of  the  court. 

First.  If  reiteration  can  establish  a  rule 
of  law,  it  must  be  taken  as  settled  that  in 
causes  coming  here  by  writs  of  error  from 
state  courts  of  last  resort  we  may  not  con- 
sider Federal  questions  not  specially  set 
up  below.  And  further,  that  such  a  ques- 
tion comee  too  late  if  raised  for  the  first 
time  after  final  decision  in  the  highest 
state  court  by  petition  for  rehearing  un- 
less this  was  actually  entertained.  St 
Louis  &  S.  F.  R.  Co.  v.  Shepherd,  240  U. 
S.  240,  241,  ante,  622,  624,  36  Sup.  Ct.  Rep. 
274;  McCorquodale  v.  Texas,  211  U.  S.  432, 
437,  53  L.  ed.  269,  270,  29  Sup.  Ct.  Rep. 
146. 

[04]  The  following  recitals  are  parts  of 
the  bill  of  lading: 

Par.  6.  "The  said  shipper  further  agrees 
that  as  a  condition  precedent  to  his  right 
to  recover  any  damages  for  loss  or  injury 
to  any  of  said  stock,  he  will  give  notice  in 
writing  of  his  claim  therefor  to  some  officer 
or  station  agent  of  the  said  company  be- 
fore said  stock  has  been  removed  from  the 
place  of  destination  or  mingled  with  other 
stock." 

Par.  9.  "The  terms,  conditions  and  limi- 
tations hereby  imposed  shall  inure  to  the 
benefit  of  each  and  every  carrier,  beyond 
the  route  of  said  company,  to  which  the  said 
property  may  come  for  purpose  of  trans- 
portation." 

A  rehearing  was  denied  by  the  supreme 
court  of  Montana  in  this  brief  order:  ''Ap- 
pellant's motion  for  a  rehearing  herein  here- 
tofore submitted  is  after  due  consideration 
by  the  court  denied."  An  elaborate  written 
argument  filed  there  in  support  of  the  peti- 
tion, and  incorporated  in  the  record,  states: 

"Appellant  did  not  brief  nor  argue  the 
reasonableness  of  the  provisions  of  para- 
graph 6  of  said  contract  from  the  view 
point  considered  by  the  court  on  page  3  to 
line  5  of  page  7  of  the  opinion,  for  the  rea- 
son that  no  such  question  was  raised  by  the 
plaintiff  in  the  court  below.  In  fact,  the 
only  grounds  upon  which  the  defendant 
attacked  said  provisions  of  the  contract  in 
his  answer  was  that  it  *is  unreasonable, 
unjust,  burdensome,  against  the  policy  of 
the  law,  and  contrary  to  the  express  pro- 
visions of  chapter  138  of  Session  Laws  of 
the  state  of  Montana  for  1909.'  Not  until 
his  brief  was  filed  in  this  court  did  such 
question  appear  in  the  case. 

"In  view  of  the  provision  of  paragraph 
9  of  the  contract,  also  of  plaintiff's  posi- 
tion in  the  court  below,  and  of  the  fact 

S41  V.  B. 


1015. 


NORTHERN  P.  R.  CO.  v.  WALL. 


04-07 


that  the  defendant  company  has  always  con- 
sidered that  a  notice  serred  upon  *Bome 
officer  or  station  agent'  of  the  connecting 
carrier  at  point  of  deliyery,  in  the  manner 
required  by  paragraph  6  of  the  contract, 
was  a  sufficient  [96]  notice  to  show  a  com- 
pliance with  such  provision  in  an  acticm 
brought  against  the  initial  carrier,  we  did 
not  consider  the  question  as  presented  for 
the  first  time  in  respondent's  brief  of  any 
importance,  and  did  not  even  reply  thereto 
in  our  oral  argument. 

"Under  section  0  of  said  contract  the 
terms  and  conditions  thereof  inure  to  the 
benefit  of  the  connecting  carrier.  Therefore, 
■aoh  notice  should  be  given  to  some  officer 
or  station  agent  of  such  carrier  at  point 
of  delivery  when  damages  are  claimed. 

'The  importance  of  this  is  apparent  when 
considered  in  connection  with  the  Carmack 
amendment  to  the  interstate  commerce 
law." 

The  only  ground  for  reversal  now  serious- 
ly relied  upon  is  that  the  Carmack  amend- 
ment (§  7,  chap.  3591,  34  Stat,  at  L.  584, 
595,  Comp.  Stat.  1913,  §§  8563,  8592)  made 
"the  connecting  carrier,  and  therefore  its 
agents,  the  agents  of  the  initial  carrier," 
and  consequently  the  court  below  wrongly 
held,  because  no  officer  or  station  agent  pri- 
marily employed  by  Northern  Pacific  Rail- 
way was  shown  to  have  been  in  Chicago, 
paragraph  6  was  unreasonable  and  inopera- 
tive, and  notice  to  a  Burlington  agent  would 
not  have  been  effective  for  any  purpose.  I 
fail  to  find  that  this  point  waa  definitely 
raised  at  any  stage  prior  to  the  applica- 
tion for  rehearing;  and  counsel  for  the 
railroad  below  seem  to  have  been  equally 
unsuccessful,  tf  they  had  already  witting- 
ly relied  upon  it,  they  would  hardly  Jiave 
burdened  their  argument  for  rehearing  with 
an  excuse  for  failure  so  to  do.  Former 
opinions  imperatively  demand  that  the 
foundation  for  our  jurisdiction  be  laid  in 
plain  view,  and  not  around  a  comer,  where 
only  an  esoteric  eye  can  detect  it.  Sea- 
board Air  Line  R.  Co.  v.  Duvall,  225  U.  S. 
477,  487,  56  L.  ed.  1171,  1176,  32  Sup.  Ct. 
Rep.  790. 

Second.  'The  bill  of  lading  itself  is  an 
elaborate  document,  bearing  on  its  face  evi- 
dences of  care  and  deliberation  in  the  forma- 
tion of  the  conditions  of  the  liability  of  the 
companies  issuing  it.  The  language  is 
ehosen  by  the  companies  [06]  for  the  pur- 
pose, among  others,  of  limiting  and  dimin- 
ishing their  common-law  liabilities,  and  if 
there  be  any  doubt  arising  from  the  lan- 
guage used  as  to  its  proper  meaning  or  con- 
struction, the  words  should  be  construed 
most  strongly  against  the  companies,  be- 
cause their  officers  or  agents  prepared  the 
instrument,  and  as  the  court  is  to  interpret 
«0  Ii.  ed. 


f  suph  language,  it  is,  as  stated  by  Mr.  Jus- 
tice Harlan,  in  delivering  the  opinion  of  the 
court  in  First  Nat.  Bank  v.  Hartford  F. 
Ins.  Co.  05  U.  6.  673,  679,  24  L.  ed.  563, 
565 :  'Both  reasonable  and  just  that  its  own 
words  should  be  construed  most  strongly 
against  itself.' "  Texas  &  P.  R.  Co.  v.  Reiss, 
183  U.  S.  621,  626,  46  L.  ed.  358,  360,  22 
Sup.  Ct.  Rep.  252. 

Apparently  the  bill  under  consideration 
followed  a  form  adopted  before  passage  of 
the  Carmack  amendment,  or  at  least  before 
this  was  adequately  understood.  It  is 
dated,  "Belgrade,  Montana,  Station,  January 
2,  1912,"  purports  to  be  an  "agreement, 
made  the  day  above  stated,  between  the 
Northern  Pacific  Railway  Company,  here- 
inafter called  the  'Company,'  and  R.  J. 
Wall,  hereinafter  called  the  'Shipper,' "  and 
contains,  in  addition  to  paragraphs  6  and 
9,  copied  above,  the  following  ones: 

Par.  7.  "It  is  further  agreed  and  pro- 
vided that  no  suit  or  action  to  recover  any 
damages  for  loss  or  injury  to  any  of  said 
stock,  or  for  the  recovery  of  any  claim  by 
virtue  of  this  contract,  shall  be  sustained 
by  any  court  against  said  Company  unless 
suit  or  action  shall  be  commenced  within 
sixty  (00)  days  after  the  damage  shall 
occur,  and  on  any  suit  or  action  commenced 
against  said  Company  after  the  expiration  of 
said  sixty  (60)  days,  the  lapse  of  time  shall 
be  taken  and  deemed  conclusive  evidence 
against  the  validity  of  said  claim,  any  stat- 
ute to  the  contrary  notwithstanding." 

Par.  8.  "The  said  Company  shall  not  be 
liable  for  the  nondelivery  or  loss  of,  nor  for 
injuries  suffered  by,  any  of  the  stock  be- 
yond the  line  of  its  own  railroad." 

[97]  Commenting  on  paragraph  6,  the 
supreme  court  of  Montana  said  (50  Mont. 
127): 

"If  the  paragraph  above  means  anything, 
it  required  the  shipper  to  give  notice  in 
writing  to  an  officer  or  station  agent  of  the 
Northern  Pacific  Company.  Notice  to  an 
agent  of  the  Burlington  road  would  not 
have  been  effective  for  any  purpose.  The 
Company  mentioned  in  paragraph  6  is  de- 
fined by  the  preamble  to  the  contract,  to 
mean  the  'Northern  Pacific  Railway  Com- 
pany.' Furthermore,  if  this  provision  is 
valid,  it  must  be  so  construed  as  to  serve 
some  purpose.  Its  evident  purpose  was  to 
enable  the  carrier  to  investigate  the  condi- 
tion of  the  stock,  and  to  that  end  the  ship- 
per was  required  to  keep  them  separate 
until  such  investigation  was  made  or  a.  rea- 
sonable time  therefor  had  elapsed.  By  the 
facts  before  us  the  reasonableness  of  the 
provision  is  to  be  tested.  The  contract  is 
silent  upon  the  question  of  service  of  the 
notice.  If  personal  service  was  necessary, 
the  shipper  was  required  to  hold  the  cattle 


97-^9 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbbh, 


at  the  Union  Stock  Yards  until  he  could 
find  an  officer  or  station  agent  of  the  North- 
em  Pacific  Company.  No  particular  officer 
or  station  agent  is  designated,  and  if  this 
provision  is  to  be  taken  literally,  the  ship- 
per was  required  at  his  peril  to  assume  the 
burden  of  finding  some  person  who  answered 
the  description  given.  There  is  not  a  sug- 
gestion in  the  contract,  in  the  pleadings, 
or  the  proof,  that  the  Northern  Pacific  Com- 
pany had  an  officer  or  station  agent  at  Chi- 
cago, or  nearer  than  St.  Paul,  the  .eastern 
terminus  of  its  road — more  than  400  miles 
away.  If  service  could  have  been  made  by 
mail,  plaintiff  would  have  been  in  no  bet- 
ter position,  though  doubtless  a  letter  writ- 
ten to  the  station  agent  at  Belgrade,  and 
mailed  postpaid  at  Chicago,  would  have 
sufficed  for  a  literal  compliance  with  the 
terms  of  this  provision.  But  in  any  event, 
plaintiff  would  have  had  to  bear  the  burden 
of  keeping  his  cattle  on  the  cars  or  in  the 
stock  yards  until  the  notice  had  been  re- 
ceived and  a  reasonable  time  for  inspec- 
tion [08]  had  elapsed.  If  the  paragraph  in 
question  be  construed  to  mean  that  a  writ- 
ten notice  mailed  from  Chicago  to  any  sta- 
tion agent  of  the  Northern  Paoific  Company, 
even  the  agent  at  Seattle,  would  suffice,  it  is 
senseless.  If  it  is  construed  to  mean  that 
the  shipper  should  travel  from  Chicago  to 
St.  Paul,  and  make  personal  service  of  the 
notice  upon  an  officer  or  station  agent  of 
the  Northern  Pacific  Company,  then  it  is 
unreasonable  to  the  point  of  being  uncon- 
scionable. Whether  the  company  had  an 
officer  or  station  agent  at  Chicago, — at  a 
point  where  it  has  no  road, — upon  whom 
service  of  this  notice  could  have  been  made, 
was  a  matter  peculiarly  within  its  own 
knowledge,  and  for  this  reason  the  burden 
was  upon  it  to  make  proof  of  such  fact.'' 

Manifestly  its  language  has  given  rise  to 
a  very  grave  doubt;  therefore  I  think  the 
contract  should  be  construed  most  strongly 
against  the  company  and  with  a  view  to 
preserve  shipper's  rights.  The  construction 
placed  upon  paragraph  6  by  the  state  su- 
preme court,  when  sitting  within  surround- 
ings designed  to  stimulate  clear  thinking,  is 
diametrically  opposed  to  the  one  now  adopt- 
ed. In  such  circumstances  it  appears  to 
me  hardly  reasonable  to  say  that  a  stock- 
man at  a  wayside  Montana  station  was 
bound  instantly  to  apprehend  the  true  in- 
terpretation, notwithstanding  any  mental 
quickening  which  he  may  have  received  from 
a  "rough  wind"  and  a  modest  thermometer 
pointing  to  only  "7  or  8  degrees  below  zero." 

I  am  authorized  to  say  that  Mr.  Justice 
McKenna  concurs  in  this  dissent  for  the 
second  reason  stated. 
910 


[99]  SAMUEL  E.  GIDNEY,  PUT.  in  Err., 

V. 

SIDNEY  C.  CHAPPEL  ^d  J.  C.  ScuUy. 

(See  S.  0.  Reporter's  ed.  99-103.) 

Appeal  —  from  probate  decree  —  effect 
of  Arkansas  laws  in  Indian  Terri- 
tory. 

1.  The  union  in  a  single  court  in  the 
Indian  Territoir  of  the  nmctions  of  the 
probate  and  circuit  courts  of  Arkansas 
renders  "locally  inapplicable"  the  provi- 
sions of  Mansf.  (Ark.)  Dig.  1884,  §§  6509, 
6521,  dealing  with  appeals  from  probate  to 
circuit  court,  so  that  such  provisions  were 
not  put  in  force  in  the  Indian  Territory  by 
the  act  of  Congress  of  May  2,  1890  (26 
Stat,  at  L.  81,  chap.  182),  §  31,  adopting 
and  extending  over  the  Indian  Territory 
certain  general  laws  of  Arkansas  "in  force 
at  the  close  of  the  session  of  the  general 
assembly  of  that  state  of  1883,  as  pub- 
lished" in  that  volume,  where  "not  locally 
inapplicable  or  in  conflict  with"  that  or 
some  other  act  of  Congress. 

Territorial  oonrts  —  jurisdiction  —  snit 
to  avoid  probate  —  extension  of  Ar- 
kansas laws  over  Indian  Territory. 

2.  The  adoption  and  extension  over  the 
Indian  Territory  of  certain  eeneral  laws  of 
Arkansas  "in  force  at  the  close  of  the  ses- 
sion of  the  general  assembly  of  that  ^tate 
of  1883,  as  published"  in  Mansf.  (Ark.) 
Dig.  1884,  which  was  effected  by  the  ^ct  of 
Congress  of  May  2,  1890  (26  Stat,  at  L. 
81,  chap.  182),  §  31,  where  such  laws  were 
"not  locally  inapplicable  or  in  conflict  with" 
that  or  some  other  act  of  Congress,  must 
be  deemed  to  have  put  in  force  in  that  terri- 
tory the  provisions  of  §  6525  of  such  Digest, 
relating  to  suits  to  avoid  the  probate  of  a 
will,  although  the  supreme  court  of  Arkan- 
sas in  1885  held  that  this  latter  statute 
had  been  repealed  by  certain  provisions  of 
tho  civil  practice  act  of  1868,  where,  up  to 
that  decision  the  supreme  court  had  been 
treating  the  statute  as  in  force,  and  the 
particular  provisions  of  the  civil  practice 
act  which  ultimately  were  r^^rded  as  ef- 
fecting its  repeal  were  not  adopted  by  the 
act  of  Congress,  being  "locally  inappli- 
cable." 

[For  other  cases,  see  Courts,  III.  a,  1,  In 
Digest   Sup.   Ct.   1908.] 

[No.  263.] 

Submitted  March  8,  1916.     Decided  April 

24,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Oklahoma  to  review  a  decree 
which,  on  a  second  appeal,  affirmed  a  decree 
of  the  Superior  Court  of  Muskogee  County, 
in  that  state,  in  favor  of  plaintiff  in  n  suit 
to  set  aside  the  probate  of  a  will.  Affirmed 
See  same  case  below,  first  appeal,  .Hb 
Okla.  596,  134  Pac.  859;  second  appeal,  43 
Okla.  267,  142  Pac.  756^ 
The  facts  are  stated^in  the  opinion. 

141  U.  8. 


1916.  GIDNEY  v.  CHAPPEL.  99-102 

Mr.  'William  T.   Hatchings   submitted  ties   and   giving   a  hearing  de  novo  upon 

the  cause  for  plaintiff  in  error.  the  appeal.     The  sections  under  which  the 

Mr.  Napoleon  B.  Maxey  Bubmitted  the  ■""*:!"  I?""*^"  "***  "  *°"°''"l  .       .  . 

cauBe  for  defendants  in  error.    Mr.  Charles        ^^^J^    ^-  ^"^f'^J  P^"?  ?"*««\*r* 

F.  Runyan  was  on  the  brief.  *•••>•  »*  *•>«  *"»«  ?}  *>>«  """^  f^^'T. '"  *''! 

"^  Circuit  court,  resided  out  of  this  state,  and 

Mr.  Justice  Van  Devanter  delivered  the  »'"'  proceeded  against  by  order  of  appear- 

opinion  of  the  court:  »".«*  ""l^'   *»,";'«"'»  actual  appearance,   or 

This  was  a  suit  to  set  aside  a  wiU  pro-  being  personally   served  with   process,  and 

bated   in   common   form,  and  to  avoid   its  ""^  other  person  interested  who  was  not  a 

probate.      The    suit    was    begun     in    the  P^^y  to  the  proceedings  by  actual  appoar- 

United  States  court  for  the  Indian  Terri-  "'"^•''     "^    being    personally     served     with 

tory,  wherein  the  will  had  been  probated.  P'""'""'''  «?•>-  «:'thin  three  years  after  such 

and  was  transferred  to  an  Oklahoma  court  «»"».  de"8'on    ">  .the   circuit   court,   by   a 

when    that    state    was    admitted    into    the  ^'"  ">  chancery    impeach  the  decision  and 

Union.     The  plaintiff  ultimately  prevailed  •"'«  a  retrial  of  the  question  of  probate; 

and  the  supreme  court  [lOO]  of  the  stat.-  '"'^  "t"""  party  shall  be  entitled  to  a  jury 

affirmed  the  judgment.     38  Okla.  596.  134  for   the   trial   thereof.     An    infant,   not   a 

Pac.  859.  43  Okla.  207,  142  Pac.  755.  P"*y.'  «''?"  »°»  ^  jarred  of  such  proceed- 

rpi.      r-  J  —1    ..! :_    *!,..    •.-«    :.  '"K*  in  chancery  until  twelve  months  after 

The    Federal    question    in    the    case    is      i,  •  •       f  ii  •> 

whether  certain  statutes  bearing  upon  such  '  ..o'"'°«e<«     w*'  •  x       *  j  . 

a  suit  were  put  in  force  in  the  Indian  Ter-  ,,    Sec.  6525.    If  any  person  interested  in 

ritory  by  the  act  of  May  2.   1800.  chap,  tl'e  probate  of  any  will  shal    appear  with- 

182.  §  31.  26  Stet.  at  L.  81.  whereby  Con-  "  Ave  years  after  the  probate  or  rejection 

grei.  adopted  and  extended  over  the  Indian  t^";""*'  "'*;  ^7  P"*'*'""  to  the  circuit  court 

Territory  certain  general  laws  of  Arkansas  ^f  ^  '"""t^  «j'»'*  «"«»>  ''»»  «"«  «'*•''• 

"in  forci  at  the  close  of  the  session  of  the  •'?.'',«>  ?'  /«J«<=.<;«1'  P^.»y  *»  ''Vl  "^  ""''' 

general  assembly  of  that  state  of  1883.  as  *'"  ^'iVi^'^'  '!  Previously  established,  or 

published  in  1884  in  the  volume  known  «i  PJ"^*"'  '/  ^^TfK'V^^.^  the  court 

TL#       A  ij»     T\-^    *  »>      u«««  "«^4.  i^».ii»  ;.,  of. probate,  it  shall  be  the  duty  of  the  cir- 
Mansfield's  Digest,"  where     not  locally  in-        .f  i.   ^     j.      ^  •  ^     x       ^i. 

applicable  or  in  conflict  with"  that  or  some  •="'*  .f  "*  ^  ,''"*^*  *°  ."»".*  *°  *7^„** 

other  act  of  Congress.     In  Arkansas  there  ""/"''ty  °/  ?":\T    '  '!''*'=\'""*  "•»»"  "" 

were  probate  courts  and  courts  of  general  »».«"?»  ^  *"?"*  ''^  ,\r^-    ^        .,    • 

.     .  J.  X-        A    : -♦-.J    -«    ^;..^,.u  ^^.«,.4.         -As  the  functions  of  the  probate  and  cir- 

jurisdiction    designated    as    circuit    courts,        ..  x     .      a  i  ..    i   . 

while   for   the   Indian   Territory  only   one  euit  courts  in  Arkansas  were  united  in  a 

court  had  been  esUblished  at  that  time.  "'"K'*'   7"!'*    "*   "'*  y^^}^   Territory.   ,t 

J  ..  «*     *  ^ ««i  ;.,.:„jj«*;««  seems  plain,  as  was  held  by  the  supreme 

and  it  was  a  court  of  general  jurisdiction.  *;       '  .     xi..  xl  x  xv 

T  *  Ai.:-  *u«     »^^^i.*^  4.u«*  ««*v.«  court  of  Oklahoma  in  this  case,  that  the 

In  view  of  this  the  act  declared  that     the  /Acnn       j  ami  v   j    t  -xi 

United   States  court  in  the  Indian  Terri-  '^'VT  '    ♦f        .  ^  V  f^     "J*  '!*    ''': 

tory   herein   referred    to    shall    have  and  ^^  ^'7  the  probate  to  the  circuit  court 

•      xu  <      . .«.  ^«  «-«w«*-  ««  ^cre   not   applicable  to   the   conditions   in 

exercise  the  powers  of  courts  of  probate  un-  .,  ^   ,  j-       >r      -x  j    xu      r 

der  said  laws."  and  "wherever  in  said  laws  t*""  ^"/*"/""I°'y'  ""d  ^  therefore  were 

of  Arkansas  the  courta  of  record  of  said  "ot  adopted  by  the  act  of  Congress.     It 

XX  X-       J  *u         ,1  «^««4.  ;«  ♦!,«  hardly   was  intended  that  a  court  at  all 

state  are  mentioned  the  said  court  m  the  ..       -^        ...  ,  -i-j       lu 

Indian  Territory  shall  be  substituted  there-  times  presided  over  by  a  single  judge  should 

.     „  ,      '^  entertain  appeals  from  its  own  decisions. 

®'*  xt.     a  1  1  X  J  •  The  contention  advanced  respecting  §  6523 

Among  the  Arkansas  laws  enumerated  in  .^  ^^^^  .^  ^^^^^^  ^  decisions  of  the 

the  act  was  chapter  155,  contemin^^  circuit  court   upon   appeaU   from   the  pro- 

numbered  from  6490  to  6548.     The  section  ^^  ^^^  J^^^  inapplicable  where  such 

under    which    the    will    was    probated    de-  ^^  ^^^^^^  ^^^^  ^^^  J^^^^  ^^^  therefore 

***        ^    «,,  .„     »^  „  ,.  ^as  not  adopted.     [102]   This  point   was 

"Sec.  6522.  When  any  will  shall  be  ex-  ^^^  considered  in  the  opinion  of  the  supreme 

hibited  for  probate,  the  court  of  probate  ^^^  ^f  Oklahoma,  and  it  need  not  be  de- 

.     .     .     may  and  shall  receive  the  probate  ^ided  here.     However  it  might  be  resolved, 

thereof  in  common  form,  without  summon-  ^^^  result  in  the  present  case  would  be  the 

ing  any   party,  and  shall  grant  a  certifi-  game. 

cate  of  probate,  or,  if  the  will  be  rejected.        The  contention   made  respecting   §   6525 

shall    grant     a    certificate    of    rejection;  is  that  it  was  not  adopted,  because  not  in 

.     .     .  **  force  in  Arkansas  at  the  close  of  the  ses- 

Other  sections    (6509  and  6521)   provide  sion  of  the  general  assembly  of  1883.     The 

for  an  appeal  to  the  circuit  court  from  an  claim   that   it   was   not   then    in   force    is 

order  of  the  probate  court  establishing  or  based  upon  a  decision  of  the  supreme  court 

rejecting  a  will,  and  for  bringing  in  par-  of  Arkansas  in  1885,  holding  that  it  ^%». 
60  L.  ed.  ^^^ 


102,  lOS 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbem, 


Impliedlj  repealed  bj  the  inoluaion  in  the 
civil  practice  act  of  1868,  which  was  a  later 
enactment,  of  certain  provisions  regulating 
appeals  from  the  probate  to  the  circuit 
court,  and  prescribing  the  effect  to  be  given 
to  the  latter's  decision  upon  such  an  appeal. 
Dowell  y.  Tucker,  46  Ark.  438.  Of  course, 
that  decision  was  controlling  in  Arkansas, 
but  it  has  little  bearing  upon  the  question 
here  presented,  and  for  these  reasons:  Sec- 
tion 6525  was  published  in  1884  in  Mans- 
field's Digest  as  a  general  law  "in  force  at 
the  close  of  the  general  assembly  of  1883" 
(see  title  page  of  that  publication),  and 
the  supreme  court  of  the  state  had  been 
treating  it  as  such  (Tobin  v.  Jenkins,  29 
Ark.  151;  Janes  ▼.  Williams,  31  Ark.  175, 
189;  Jenkins  v.  Tobin,  31  Ark.  306,  308; 
Mitchell  T.  Rogers,  40  Ark.  91,  93-95). 
Besides,  the  particular  provisions  of  the 
civil  practice  act  which  ultimately  were  re- 
garded as  effecting  its  implied  repeal  in 
Arkansas — they  became  §§  6509  and  6521 
of  Mansfield's  Digest — ^were  not  adopted  by 
the  act  of  Congress,  because  inapplicable 
to  the  conditions  in  the  Indian  Territory. 
In  these  circumstances  we  think  the  adopt- 
ing act,  rightly  interpreted,  put  the  sec- 
tion in  force  there.  Separated,  as  it  then 
was,  from  the  restraining  influence  of  the 
supposedly  conflicting  provisions  of  the  civil 
practice  act,  it  assiimed  its  normal  place 
among  the  other  laws  with  which  it  was 
adopted.  This  conclusion  is  not  opposed 
to  our  decisions  in  Adkins  v.  Arnold,  235 
U.  8.  417,  59  L.  ed.  294,  35  Sup.  Ct.  Rep. 
118,  and  Ferryman  v.  Woodward,  238  U. 
S.  148,  59  L.  ed.  1242,  35  Sup.  Ct.  Rep. 
830,  as  [103]  seems  to  be  claimed  by  the 
plaintiff  in  error,  but,  on  the  contrary,  is  in 
accord  with  what  actually  was  there  de- 
cided. 

Other  questions  are  discussed  in  the 
briefs,  but  as  they  are  not  Federal,  but 
essentially  local,  they  cannot  be  re-examined 
by  us. 

Judgment  af&rmed. 


DAVID  LAMAR 

v. 

UNITED  STATES. 
(See  S.  C.  Reporter's  ed.  103-118.) 

Blection  of  remedies  ^  choice  of  appel- 
late court. 

1.  The  circuit  court  of  appeals  may  not 
require  a  plaintiff  in  error  to  elect,  under 
penalty   of   dismissal    in   case   of   refusal. 

Note. — On   certiorari   from  Federal   Su- 
preme Court  to  circuit  courts  of  appeals — 
see  note  to  United  States  v.  Dickinson.  53 
L.  ed.  U.  S.  711. 
•  IS 


which  of  two  writs  of  error  to  review  a 
conviction  in  a  Federal  district  court,  one 
sued  out  directly  from  the  Supreme  Court, 
and  the  other  out  of  the  circuit  court  of 
appeals,  he  will  pursue,  since  the  exertion 
of  the  judicial  power  alone  could  determine 
which  of  the  two  writs  was  available,  and 
even  if  the  situation  arising  from  tJie  pend- 
ency of  the  two  writs  created  doubt,  the 
jurisdictional  or  other  questions  aa  to  which 
the  doubt  existed  could  have  been  certified 
to  the  Supreme  Court. 

[For  other  cases,  see  Election  of  Remedies, 
III.  In  DlgettSop.  Ct  1908.] 

Certiorari  —  to  circuit  court  of  appeala 
^  scope  of  review. 

2.  The  Federal  Supreme  Court,  having 
corrected  on  certiorari  the  error  oi  a  cir- 
cuit court  of  appeals  in  dismissing  a  writ 
of  error  to  review  a  conviction  in  a  dis- 
trict court  upon  the  refusal  of  plaintiff  in 
error  to  elect  whether  he  would  pursue  that 
writ  or  one  sued  out  directly  from  the  Su- 
preme Court,  will  dispose  of  the  case  on 
the  merits  because  of  the  serious  doubt 
which  may  have  arisen  out  of  the  giving 
by  the  district  judge,  for  the  purpose  of  the 
writ  of  error  from  the  Supreme  Court,  of 
a  certificate  as  to  a  jurisdictional  question, 
although  it  was  afterward  established  that 
there  was  no  foundation  whatever  for  al- 
lowing it,  and  because  of  the  resulting  com- 
plexity of  the  question  as  to  whether  the 
jurisdiction  of  tne  Supreme  Court  had  not 
attached  to  the  subject-matter  and  excluded 
the  advisability,  if  not  the  power,  of  the 
court  to  certify  to  the  Supreme  Court  the 
question  which  writ  of  error  was  para- 
mount, when  of  necessity  a  certificate  in- 
volving the  solution  of  that  question  had 
already  been  made  by  the  district  judge. 
[For  other  cases,  see  Certiorari,  II.  c.  In  Di- 
gest Sup.  Ct  1908.1 

False  personation  —  of  Federal  officer 
^  Congressman. 

3.  A  member  of  the  House  of  Repre- 
sentatives of  the  Congress  of  the  United 
States  is  an  officer  acting  under  the  au- 
thority of  the  United  States,  within  the 
meaning  of  U.  S.  Crim.  Code,  §  32,  making 
criminal  the  false  personation  of  such  an 
officer  witli  intent  to  defraud. 

False  peraonation  —  of  Federal  officer 
—  vnanthorlsed  act. 

4.  Any  overt  act  to  carry  out  the  fraud- 
ulent intent,  whether  or  not  it  would  have 
been  legally  authorized  had  the  assumed 
capacity  existed,  falls  within  the  condemna- 
tion of  U.  S.  Crim.  Code,  §  32,  providing 
for  the  criminal  punishment  of  one  who, 
with  intent  to  defraud,  falsely  assumes  or 
pretends  to  be  an  officer  or  employee  acting 
under  the  authority  of  the  United  Stately 
and  takes  upon  himself  to  act  as  such. 

Appeal  ^  prejudicial  error  —  defective 
indictment. 

5.  An    indictment   charging   the    false 

Ssrsonation  of  an  officer  of  the  United 
tates,  with  intent  to  defraud,  oontrair  to 
U.  S.  Crim.  Code,  §  32,  cannot  be  held  In- 
sufficient <m  writ  of  error  to  support  a  con- 
viction thereunder,  on  the  ground  that  it 

S41  V.  8. 


1015. 


LAMAB  Y.  UNITED  STATES. 


fails  to  describe  the  circumitances  of  the  of- 
fense, where  it  clearlv  charges  the  illegal 
acts  complained  of,  and  the  requisite  fraudu- 
lent intent,  states  'the  date  and  place  of  the 
eommission  of  the  acta  oharged,  and  glTes 
the  name  and  official  eharacter  of  the  of- 
ficer whom  the  accused  was  charged  with 
having  falsely  personated,  and  there  is  no 
suggestion  of  any  want  of  knowledge  of  the 
crime  which  was  charged,  or  of  any  sur- 
prise concerning  the  same,  and  there  is 
no  intimation  &at  any  request  was  made 
for  a  bill  of  particulars  oonoeming  the  de- 
tails of  the  offense  charged. 
IFor  other  cases,  see  Appeal  and  Brror,  VIIL 
in.  2,   in  Digest  Sup.  Ct.  1008.] 

Courts  —  territorial  jarlsdictlon  —  right 
to  be  tried  where  offense  was  com- 
mitted. 

6.  The  assignment  of  a  Judge  of  one 
Federal  district  and  circuit  to  duty  in  an- 
other district  and  circuit,  conformably  to 
the  Judicial  Code,  §  18,  as  amended  by  the 
act  of  October  3,  1013  (38  Stat,  at  L.  203, 
chap.  18,  Comp.  Stat.  1013,  §  085),  does  not 
virtually  destroy  the  latter  district  by 
creating  a  new  district  whose  botmdaries 
are  undefined,  and  thus  Tiolate  the  rights 
secured  under  U.  S.  Ck>nsl.,  6th  Amend., 
to  one  tried  before  such  judge  for  a  criminal 
offense,  by  subjecting  him  to  trial  in  a  dis- 
trict not  established  when  the  offense  with 
which  he  is  charged  was  committed. 
[For  other  cases,  see  Courts,  V.  c,  7,  b,   in 

Digest  Sup.  Ct.  1008.] 

Constitutional  law  ^  separation  of  pow- 
ers —  Icgtslative  vsurpation  of 'exeon- 
tlTe  power. 

7.  The  power  of  appointment  and  con- 
firmation vested  by  the  Federal  Constitu- 
tion in  the  President  and  Senate  is  not 
usurped  by  the  assignment,  conformably  to 
the  Judicial  Code,  §  18,  as  amended  by  the 
act  of  October  3,  1013  (38  Stat,  at  L.  203, 
chap.  18,  Comp.  Stat.  1013,  §  085),  of  a 
judge  of  one  Federal  district  and  circuit 
to  duty  in  another  district  and  circuit. 
[For  otber  cases,  see  Constitutional  Law,  III. 

a,  3,  in  Digest  Sup.  Ct  1008.] 

[No.  806.] 

Argued   April   4,    1016.     Decided   May   1, 

1016. 

ON  WRIT  of  Certiorari  to  the  United 
States  Circuit  Court  of  Appeals  for  the 
Second  Circuit  to  review  a  judgment  which 
dismissed  a  writ  of  error  to  the  District 
Court  for  the  Southern  District  of  New 
York  to  review  a  conviction  in  that  court 
of  a  false  personation  of  a  Federal  ofileer 
with  intent  to  defraud.    Affirmed. 

See  same  case  below,  141  G.  C.  A.  668, 
227  Fed.  1010. 

The  facts  are  stated  in  the  opinion. 

Messrs.  A.  Ijeo  Everett  and  Francis  Ij. 
Kohlman  argued  the  cause,  and,  with  Mr. 
H.  B.  Walmsley,  filed  a  brief  for  petitioner : 

A  Congressman  is  not  an  officer  of  the 
United  States. 
60  Ii.  ed.  58 


Bowen,  Documents  of  Const.;  Farrand, 
Records  of  Fed.  Oonventicm,  vol.  1,  p.  376, 
vol.  3,  pp.  507-420;  Blount's  Case,  Whart. 
St.  Tri.  200;  Story,  Const  1st  ed.  §  701; 
Tucker,  Const.  §  100;  United  States  v.  Ger- 
maine,  00  U.  S.  508,  25  L.  ed.  482;  United 
States  V.  Mouat,  124  U.  S.  303,  31  L.  ed. 
463,  8  Sup.  Ct  Rep.  505;  United  States  v. 
Smith,  124  U.  S.  525,  31  L.  ed.  534,  8  Sup. 
Ct  Rep.  505;  Burton  v.  United  States,  202 
U.  S.  344,  50  L.  ed.  1057,  26  Sup.  Ct.  Rep. 
688,  6  Ann.  Cas.  362;  People  ex  rel.  Kelly 
V.  Brooklyn,  77  N.  Y.  503,  33  Am. 
Rep.  650,  23  Am.  ft  Eng.  Enc.%  Law, 
2d  ed.  322;  United  States  v.  Wilt- 
berger,  5  Wheat.  76,  5  L.  ed.  37;  H. 
Hackfield  A  Co.  v.  United  States,  107  U.  S. 
442,  40  L.  ed.  826,  25  Sup.  Ct.  Rep.  456; 
Martin  v.  United  States,  03  C.  C.  A.  484, 168 
Fed.  108:  United  States  v.  Barnow,  230  U. 
S.  74,  ante,  155,  36  Sup.  Ct  Rep.  10; 
United  States  v.  Ballard,  118  Fed.  757; 
Mackey  t.  MiUer,  62  0.  C.  A.  130,  126  Fed. 
161. 

It  was  not  charged  or  proven  that  the 
defendant  pretended  to  act  imder  the  au- 
thority of  the  United  States. 

United  States  v.  Curtain,  43  Fed. 
433;  United  States  v.  Bradford,  53  Fed. 
542;  United  States  v.  Taylor,  108  Fed.  621; 
United  States  v.  Ballard,  118  Fed.  757; 
United  SUtes  v.  Brown,  110  Fed.  482; 
United  States  v.  Farnham,  127  Fed.  478; 
Littell  T.  United  States,  05  C.  C.  A.  148, 
160  Fed.  620;  United  States  v.  Barnow,  230 
U.  S.  74,  ante,  155,  36  Sup.  Ct.  Rep.  10. 

The  indictment  is  defective  in  failing  to 
describe  the  circumstances  of  the  offense. 

United  States  v.  Carll,  105  U.  S.  611,  26 
L.  ed.  1135,  4  Am.  Crim.  Rep.  246;  Evans 
V.  United  SUtes,  153  U.  S.  584,  38  L.  ed. 
830,  14  Sup.  Ct  Rep.  034,  0  Am.  Crim.  Rep. 
668;  United  States  v.  Hess,  124  U.  S.  483, 
31  L.  ed.  516,  8  Sup.  Ct  Rep.  571;  Keck  v. 
United  States,  172  U.  S.  434,  43  L.  ed.  505, 
10  Sup.  Ct.  Rep.  254;  Moore  v.  United 
States,  160  U.  S.  268,  40  L.  ed.  422,  16  Sup. 
Ct.  Rep.  204,  10  Am.  Crim.  Rep.  283;  Bar- 
tell  V.  United  States,  227  U.  S.  427,  57  L. 
ed.  583,  33  Sup.  Ot  Rep.  383;  Martin  v. 
United  States,  03  C.  C.  A.  484, 168  Fed.  108. 

Solicitor  General  Davla  argued  the  cause, 
and,  with  Mr.  Robert  Szold,  filed  a  brief  lor 
respondent: 

It  is  not  necessary  that  defendant's  pre- 
tense be  to  act  lawfully  under  the  authority 
of  the  United  States. 

Littell  V.  United  States,  05  C.  C.  A.  148, 
160  Fed.  620;  United  States  v.  Ballard,  118 
Fed.  757 ;  United  States  v.  Barnow,  230  U. 
S.  74,  ante,  155,  36  Sup.  Ct.  Rep.  10. 

The  defendant's  objection  is  not  one  of 
substance,  but  of  form. 

•  IS 


107-109 


SUPREMS  OOURT  OF  THE  UNITED  STATES. 


Oct.  Tkuc, 


Erant  t.  United  States,  153  U.  8.  584,  38 
L.  ed.  830,  14  Sup.  Ct.  Rep.  034,  9  Am. 
Grim.  Rep.  668;  United  States  v.  Barnow, 
239  U.  S.  74,  ante,  155,  36  Sup.  Ct.  Rep.  10. 

All  substantial  rights  of  defendant  were 
observed. 

Bartell  t.  United  States,  227  U.  S.  427, 
57  L.  ed.  583,  33  Sup.  Ct.  Rep.  383;  Dur- 
land  ▼.  United  States,  161  U.  S.  306,  40  L. 
ed.  709,  16  Sup.  Ct.  Rep.  508. 

Section  1025  of  the  Revised  Statutes 
(Comp.  Stat.  1913,  §  1691)  controls. 

Armour  Packing  Co.  v.  United  States,  209 
U.  S.  «6,  52  L.  ed.  681,  28  Sup.  Ot.  Rep. 
428;  Ledbetter  v.  United  States,  170  U.  S. 
606,  42  L.  ed.  1162,  18  Sup.  Ct.  Rep.  774. 

Mr.  Chief  Justice  "White  delivered  the 
opinion  of  the  court: 

Charged  in  the  trial  court  (southern  dis- 
trict of  New  York)  by  an  indictment  con- 
taining two  counts,  with  violating  §  32  of 
the  Penal  Code  [35  Stat,  at  L.  1095,  chap. 
321,  Comp.  Stat.  1913,  §  10,196],  the  pe- 
titioner was  convicted  and  on  December  3d, 
1914,  sentenced  to  two  years'  imprisonment 
in  the  penitentiary.  The  trial  was  presided 
over  by  the  district  judge  of  the  western 
district  of  Michigan,  assigned  to  duty  in 
the  district  conformably  to  the  provisions 
of  §  18  of  the  Judicial  Code  [36  Stat,  at  L. 
1089,  chap.  231],  as  amended  by  the  act  of 
Congress  of  October  3^  1913  (chap.  18,  38 
Stat,  at  L.  203,  Comp.  Stat.  1913,  §  985). 
To  the  conviction  and  sentence  in  January 
following  error  was  directly  prosecuted 
from  this  court,  the  assignments  of  error 
assuming  that  there  was  involved  not  only 
a  question  of  the  jurisdiction  of  the  court 
as  a  Federal  court,  but  also  constitutional 
questions.  For  the  purpose  of  the  writ  one 
of  the  district  judges  of  the  southern  dis- 
trict of  New  York  gave  a  certificate  as  to 
the  existence  and  character  of  the  question 
of  jurisdiction,  evidently  with  the  intention 
of  conforming  to  §  238  of  the  Judicial  Code 
[36  Stat,  at  L.  1157,  chap.  231,  Comp.  Stat. 
1913,  S  1215]. 

After  the  record  on  this  writ  had  been 
filed  in  this  court,  a  writ  of  error  to  the 
conviction  was  prosecuted  in  May,  1915, 
from  the  court  below.  In  September  fol- 
lowing that  court,  acting  on  a  motion  to 
dismiss  such  writ  of  error  on  [108]  the 
ground  that  its  prosecution  was  inconsistent 
with  the  writ  sued  out  from  this  court,  en- 
tered an  order  providing  for  dismissal  un- 
less the  plaintiff  in  error  within  ten  days 
elected  which  of  the  two  writs  of  error  he 
would  rely  upon,  and  subsequently,  before 
the  expiration  of  the  time  stated,  the  court 
declined  to  comply  with  the  request  of  the 
plaintiff  in  error  that  the  questions  at  issue 
be  certified  to  this  court.  On  October  29, 
914 


1915,  the  election  required  of  the  plaintiff 
in  error  not  having  been  made,  the  writ  of 
error  was  dismissed. 

On  January  31st,  1916,  the  writ  of  error 
prosecuted  from  this  court  came  under  con- 
sideration as  the  result  of  a  motion  to  dis- 
miss, and  finding  that  there  was  no  ques- 
tion concerning  the  jurisdiction  of  the  trial 
court  within  the  intendment  of  the  statute 
and  no  constitutional  question,  the  writ 
was  dismissed  for  want  of  jurisdiction.  240 
U.  S.  60,  ante,  526,  36  Sup.  Ct.  Rep.  255. 
Thereupon  the  plaintiff  in  error  in  the 
court  below  asked  that  the  cause  be  rein- 
stated and  heard,  and,  upon  the  refusal,  of 
the  request,  an  application  was  made  to 
this  court  for  leave  to  file  a  petition  for 
mandamus  to  compel  such  action,  and,  if 
not,  for  the  allowance  of  a  certiorari,  and 
although  the  former  application  was  denied, 
the  case  is  here  because  of  the  allowance 
of  the  latter  remedy. 

Primarily  the  question  is,  was  it  the 
duty  of  the  court  below  to  exercise  juris- 
diction? As  under  the  statute  it  is  indis- 
putable that  there  was  jurisdiction  and  the 
duty  to  exert  it  unless  the  conditions  exist- 
ed which  authorized  a  direct  writ  of  error 
from  this  court,  it  follows  that  the  dismis- 
sal by  this  court  of  the  direct  writ  for 
want  of  jurisdiction  affirmatively  deter- 
mined that  there  was  jurisdiction  in  the 
court  below,  and  error  was  committed  in 
not  exerting  it  unless  by  some  neglect  to 
avail  of  proper  procedure,  or  because  of 
some  line  of  inconsistent  conduct,  the  right 
to  invoke  the  jurisdiction  of  the  court  be- 
low was  lost.  As  we  have  seen,  the  assumed 
existence  of  the  latter  cause  was  the  basis 
of  the  refusal  to  exercise  jurisdiction;  that 
is,  [  lOO]  the  inconsistency  which  it  was  as- 
sumed resulted  from  prosecuting  the  direct 
writ  of  error  from  this  court  and  subse- 
quently suing  out  the  writ  of  error  from  the 
court  below,  from  which  it  was  deduced  that 
there  was  a  duty  to  elect  between  the  two  as 
a  prerequisite  to  the  right  to  ask  at  the 
hands  of  the  court  below  the  exertion  of  the 
jurisdictional  authority  cast  upon  it  by 
law.  But  if  the  exercise  of  the  assumed 
duty  of  election  which  was  imposed  had  re- 
sulted in  the  abandonment  of  the  writ  from 
the  court  below,  there  would  have  been 
nothing  left  upon  which  the  jurisdiction  of 
that  court  could  have  been  exerted,  and  it 
is  hence  apparent  that  in  substance  the 
order  was  but  a  direction  that  the  plaintiff 
in  error  abandon  the  direct  writ  prosecuted 
from  this  court  as  a  prerequisite  to  his 
right  to  invoke  the  action  of  the  court  upon 
the  writ  pending  before  it.  But,  aside  from 
the  demonstration  of  error  which  arises 
from  the  mere  statement  of  this  inevitable 
result  of  the  order  made  by  the  court  be- 

241  V.  S. 


1915. 


LAMAR  T.  UNITED  STATES. 


109-112 


low,  it  18  equally  clear  that  such  order  reat- 
ad  upon  a  misconception  arising  from  treat- 
ing as  one,  things  which  are  distinct;  that 
is,  the  existence  of  authority  to  compel  the 
abandonment  of  one  of  two  valid  and  avail- 
ably remedies  because  of  their  inconsistency, 
leaving  therefore  the  one  not  abandoned  in 
force,  and  the  want  of  power  to  compel  an 
election  of  one  of  two  remedies  where  the 
exertion  of  judicial  power  alone  could  de- 
termine which  of  the  two  was  available, 
and  where  therefore  the  exercise  of  the  elec- 
tion ordered  in  the  nature  of  things  involved 
the  power  to  destroy  all  relief,  and  thus 
frustrate  the  right  of  review  conferred  by 
the  statute  by  one  or  the  other  of  the 
remedies.  As,  in  view  of  this  distinction, 
it  clearly  results  that  the  determination  of 
the  plaintiflf  in  error  to  abandon,  under  the 
order  of  the  court,  one  or  the  other  of  the 
two  writs  of  error,  could  not  have  validated 
the  writ  not  abandoned  if  it  was  not  au- 
thorized by  law,  it  must  follow  that  the 
election  to  which  the  order  of  the  court 
submitted  the  plaintiff  in  error  was  [110] 
not  real,  and  therefore  afforded  no  basis  for 
the  refusal  of  the  court  to  determine  the 
validity  of  the  writ  of  error  pending  before 
it  and  to  decide  the  case  if  it  deemed  it  had 
jurisdiction.  Indeed,  if  it  be  conceded  that 
the  situation  arising  from  the  pendency  of 
the  two  writs  created  doubt,  that  conces- 
sion would  not  change  the  result,  since  we 
are  of  opinion  that  the  power  to  have  certi- 
fied to  this  court  the  jurisdictional  or  other 
questions  as  to  which  the  doubt  existed  was 
the  remedy  created  by  the  statute  to  meet 
such  a  situation,  and  to  obviate  the  possi- 
bility of  denying  to  the  plaintiff  in  error 
the  right  to  a  review  which  again  it  must 
be  borne  in  mind  the  statute  gave  under 
one  or  the  other  of  the  two  writs. 

Correcting  the  error  committed  by  the 
court  below  by  its  order  of  dismissal,  the 
case  on  its  merits  is  within  our  competency 
to  decide  as  the  result  of  the  operation  of 
the  certiorari.  As,  however,  it  is  clear  that 
the  questions  on  the  merits,  as  demonstrat- 
ed by  the  previous  judgment  of  dismissal  of 
the  direct  writ  of  error,  are  of  a  character 
which,  under  the  statute,  if  they  had  been 
disposed  of  by  the  court  below  in  the  dis- 
charge of  its  duty,  would  have  been  finally 
determined,  and  as  it  is  equally  apparent 
that  none  of  the  questions  except  the  one 
of  jurisdiction,  that  is,  the  duty  of  the 
eourt  below  to  have  decided  the  cause,  are 
within  the  exceptional  considerations  by 
which  certiorari  is  allowed,  it  follows  that, 
in  order  to  give  effect  to  the  statute,  our 
duty  would  be,  as  a  general  rule,  having 
corrected  the  error  resulting  from  the  dis- 
missal, and  having  afforded  a  remedy  for 
the  failure  of  the  court  below  to  exercise 
60  Ii.  ed. 


jurisdiction,  to  go  no  farther  and  remand 
the  case  so  that  the  questions  at  issue 
might  be  finally  disposed  of.  Lutcher  &  M. 
Lumber  Co.  v.  Knight,  217  U.  S.  257,  54  L. 
ed.  757,  30  Sup.  Ct.  Rep.  505.  But  while 
not  in  any  degree  departing  from  the  gen- 
eral rule,  we  think  it  is  inapplicable  here 
because  of  the  serious  doubt  which  may 
have  been  engendered  by  the  certificate  as 
to  the  jurisdictional  question  given  by  the 
district  judge,  [111]  although  it  is  now 
established  that  there  was  no  foundation 
whatever  for  allowing  it,  and  because  of  the 
resulting  complexity  of  the  question  as  to 
whether  the  jurisdiction  of  this  court  had 
not  attached  to  the  subject-matter  and  ex- 
cluded the  advisability  if  not  the  power  on 
the  part  of  the  court  below  to  certify  to 
this  court  the  question  of  which  writ  of 
error  was  paramount,  when  of  necessity  a 
certificate  involving  the  solution  of  that 
question  had  already  been  made  by  the  dis- 
trict judge.  We  therefore  dispose  of  the 
merits,  restating  the  case  so  far  as  may  be 
essential. 

The  section  of  the  Penal  Code  charged  to 
have  been  violated  punishes  anyone  who, 
*'with  intent  to  defraud  either  the  United 
States  or  any  person,  shall  falsely  assume 
or  pretend  to  be  an  officer  or  employee  act- 
ing under  the  authority  of  the  United 
States,  or  any  Department,  or  any  oflicvr 
of  the  government  thereof,  and  shall  take 
upon  himself  to  act  as  such,  or  shall  in 
such  pretended  character  demand  or  obtain 
from  any  person  or  from  the  United  States, 
or  any  Department,  or  any  officer  of  tlie 
government  thereof  any  money,  paper,  docu- 
ment, or  other  valuable  thing,"  etc  The 
indictment  charged  that  at  a  stated  time 
the  petitioner  "unlawfully,  knowingly  and 
feloniously  did  falsely  assume  and  pretend 
to  be  an  officer  of  the  Government  of  the 
United  States,  to  wit,  a  member  of  the 
House  of  Representatives  of  the  Congress  of 
the  United  States  of  America,  that  is  to 
say,  A.  Mitchell  Palmer,  a  member  of  Con- 
gress representing  the  twenty-sixth  district 
of  the  state  of  Pennsylvania,  with  the  in- 
tent, then  and  there,  to  defraud  Lewis  Cass 
Ledyard,"  and  other  persons  who  were 
named  and  others  to  the  grand  jury  un- 
known, "and  the  said  defendant,  then  and 
there,  with  the  intent  and  purpose  afore- 
said, did  take  upon  himself  to  act  as  such 
member  of  Congress;  against  the  peace," 
etc.,  etc. 

We  consider  the  contentions  relied  upon 
for  reversal  separately. 

[112]  1.  It  is  insisted  that  no  offense 
ujider  the  statute  was  stated  in  the  indict- 
ment because  a  member  of  the  House  of 
Representatives  of  the  United  States  is  not 
an  officer  acting  under  the  authority  of  the 


11^114 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbbm, 


United  States  within  the  meaning  of  the 
provision  of  the  Penal  Code  upon  which  the 
indictment  was  based.  This  contention  is 
supported  by  reference  to  what  is  assumed 
to  be  the  significance  in  one  or  more  pro- 
visions of  the  Constitution  of  the  words 
"civil  officers/'  and  reliance  is  specially 
placed  upon  the  ruling  made  at  an  early 
day  in  the  Blount  Case,  Whart.  St.  Tr.  p. 
200,  that  a  Senator  of  the  United  States 
was  not  a  civil  officer  subject  to  impeach- 
ment within  the  meaning  of  §  4  of  article 
2  of  the  Constitution.  But,  as  previously 
held  in  sustaining  the  motion  to  dismiss 
the  direct  writ  of  error,  the  issue  here  is 
not  a  constitutional  one,  but  who  is  an 
officer  acting  under  the  authority  of  the 
United  States  within  the  provisions  of  the 
section  of  the  Penal  Code  under  ooiisidera- 
tion?  And  that  question  must  be  solved 
by  the  text  of  the  provision,  not  shutting 
out  as  an  instrument  of  interpretation 
proper  light  which  may  be  afforded  by  the 
Constitution,  and  not  forgetting  that  a 
penal  statute  is  not  to  be  enlarged  by  inter- 
pretation, but  also  not  unmindful  of  the 
fact  that  a  statute,  because  it  is  penal,  is 
not  to  be  narrowed  by  construction  so  as  to 
fail  to  give  full  effect  to  its  plain  terms  as 
made  manifest  by  its  text  and  its  context. 
United  States  v.  Hartwell,  6  Wall  385,  395, 
18  L.  ed.  830,  832 ;  United  States  v.  Corbett, 
215  U.  S.  233,  242,  243,  54  L.  ed.  173,  175, 
176,  30  Sup.  Ct.  Rep.  81. 

Guided  by  these  rules,  when  the  relations 
of  members  of  the  House  of  Representatives 
to  the  government  of  the  United  States  are 
borne  in  mind,  and  the  nature  and  charac- 
ter of  their  duties  and  responsibilities  are 
considered,  we  are  clearly  of  the  opinion 
that  such  members  are  embraced  by  the 
comprehensive  terms  of  the  statute.  If, 
however,  considered  from  the  face  of  the 
statute  alone,  the  question  was  susceptible 
of  obscurity  or  doubt, —  which  [113]  we 
think  is  not  the  case, — all  ground  for  doubt 
would  be  removed  by  the  following  consider- 
ations: (a)  Because  prior  to  and  at  the 
time  of  the  original  enactment  in  question 
the  common  understanding  that  a  member 
of  the  House  of  Representatives  was  a  legis- 
lative officer  of  the  United  States  was  dear- 
ly expressed  in  the  ordinary,  as  well  as  legal, 
dictionaries.  See  Webster,  verho  "office;" 
Century  Diet,  verho  "officer;"  2  Bouvier's 
Law  Diet  1807  ed.  540,  verho  "legislative 
officers;"  Black's  Law  Diet.  2d  ed.  p.  710, 
verho  legislative  officer."  (b)  Because  at 
or  before  the  same  period  in  the  Senate  of 
the  United  States,  after  considering  the 
ruling  in  the  Blount  Case,  it  was  concluded 
that  a  member  of  Congress  was  a  civil  offi- 
cer of  the  United  States  within  the  purview 
of  the  law  requiring  the  taking  of  an  oath 
•  1« 


of  office.  (Cong.  Globe,  38th  Congress,  Ist 
session,  pt.  1,  pp.  320-331.)  (c)  Because 
also  in  various  general  statutes  of  the  United 
States  at  the  time  of  the  enactment  in  ques- 
tion a  member  of  Congress  was  assumed  to 
be  a  civil  officer  of  the  United  States.  Re- 
vised Statutes,  §§  1786,  2010,  and  sub- 
division 14  of  §  563.  (d)  Because  that 
conclusion  is  the  necessary  result  of  prior 
decisions  of  this  court,  and  harmonizes  with 
the  settled  conception  of  the  position  of 
members  of  state  l^islative  bodies  as  ex- 
pressed in  nuiny  state  decisions.  The  Floyd 
Acceptances  (Pierce  v.  United  States)  7 
WalL  666,  676,  19  L.  ed.  169,  173;  Ex  parte 
Yarbrough,  110  U.  S.  651,  654,  28  L.  ed. 
274,  275,  4  Sup.  Ct.  Rep.  152;  Wiley  v. 
Sinkler,  179  U.  S.  58,  64,  45  L.  ed.  84,  88, 
21  Sup.  Ct.  Rep.  17;  Swafford  v.  Templeton, 
185  U.  S.  487,  492,  46  L.  ed.  1005,  1007,  22 
Sup.  Ct.  Rep.  783;  People  ex  rel.  Kelly  v. 
Brooklyn,  77  N.  Y.  503,  507,  508,  33  Am. 
Rep.  659;  Morril  v.  Haines,  2  N.  H.  246; 
Shelby  v.  Alcorn,  36  Miss.  273,  291,  72  Am. 
Dec.  169;  Parks  v.  Soldiers'  &  S.  Home,  22 
Colo.  86,  96,  43  Pac.  542. 

2.  But  it  is  urged,  granting  that  a  mem- 
ber of  Congress  is  embraced  by  the  word 
"officer,"  yet  no  offense  was  stated,  since  it 
was  not  charged  that,  in  pretending  to  be 
an  officer,  the  accused  did  an  act  which  he 
would  have  been  authorized  to  do  under 
the  authority  of  the  United  States  had  he 
[114]  possessed  the  official  capacity  which 
he  assumed  to  have.  In  other  words,  the 
proposition  is  that  the  first  clause  of  the 
section  prohibits  the  falsely  assuming  or 
pretending  to  be  an  officer  with  intent  to  de- 
fraud, and,  as  such  officer,  taking  upon  him- 
self to  act  under  the  authority  of  the 
United  States, — ^that  is,  to  do  an  authorized 
act.  The  contention  which  the  proposition 
covers  was  insisted  upon  not  only  in  the  de- 
murrer which  was  overruled,  but  by  re- 
quests to  charge  and  exceptions  to  the 
charge  given.  While  it  is  undoubtedly  true 
that  the  construction  asserted  finds  some 
apparent  support  in  one  or  more  decided 
cases  in  district  courts  of  the  United  States 
(United  States  v.  Taylor,  108  Fed.  621; 
United  States  v.  Ballard,  118  Fed.  757; 
United  States  v.  Farnham,  127  Fed.  478), 
we  are  of  opinion  that  it  misoonceives  the 
statute  and  fails  to  give  it  proper  ^ect  be- 
cause, when  ri^tly  construed,  the  operation 
of  the  clause  is  to  prohibit  and  punish  the 
falsely  assuming  or  pretending,  with  intent 
to  defraud  the  United  States  or  any  person, 
to  be  an  officer  or  employee  of  the  United 
States  as  defined  in  the  clause,  and  the  do- 
ing in  the  falsely  assumed  character  any 
overt  act,  whether  it  would  have  been  legal- 
ly authorized  had  the  assumed  ci^Musity 
existed  or  not,  to  carry  out  the  fraudulent 

S41  V.  B. 


1916. 


LAMAR  V.  UNITED  STATES. 


114-U7 


intent  Briefly  stated,  we  conclude  this  to 
be  the  meaning  of  the  clause  for  the  follow- 
ing reasons:  (a)  Because  the  words  "act- 
ing under  the  authority  of  the  United 
States"  are  words  designating  the  character 
of  the  officer  or  employee  whose  personation 
the  clause  prohibits,  since,  if  the  words  are 
thus  applied,  the  clause  becomes  coherent 
and  free  from  difficulty,  while  if,  on  the 
other  hand,  they  are  applied  only  as  limit- 
ing and  defining  the  character  of  the  overt 
act  from  which  criminality  is  to  arise,  con- 
fusion and  uncertainty  as  to  the  officer  or 
employee  whose  fraudulent  simulation  is 
prohibited  necessarily  results,  (b)  Because 
the  consequence  of  a  contrary  construction 
would  be  obviously  [115]  to  limit  the  ap- 
plication of  the  clause  as  shown  by  its  gen- 
eral language  and  as  manifested  by  the 
remedial  purpose  which  led  to  its  enactment. 
(Cong.  Rec.  vol.  14,  pt.  4,  p.  3263,  47th 
Cong.  2d  Sesa.)  (c)  Because  to  adopt  a 
contrary  view  would  be  absolutely  inhar- 
monious with  the  context,  since  it  would 
bring  into  play  a  conflict  impossible  of 
reconciliation.  To  make  this  clear  it  is  to 
be  observed  that  the  last  clause  of  the  sec- 
tion makes  criminal  the  demanding  or  ob- 
taining in  the  assumed  capacity  which  the 
first  claime  prohibits,  ''from  any  person  or 
from  the  United  States,  .  .  .  any 
money,  paper,  document,  or  other  valuable 
thing,  .  .  ."  We  say  which  the  first 
clause  prohibits  because  there  is  no  re-ex- 
pression of  the  prohibition  against  assum- 
ing or  pretending  contained  in  the  first 
clause  except  as  that,  prohibition  is  carried 
over  and  made  applicable  to  the  second  by 
the  words  "or  shall  in  such  pretended  char- 
acter demand,"  etc.  As  it  is  obvious  that 
the  acta  made  absolutely  criminal  by  the 
second  clause  are  acts  which  may  or  may 
not  have  been  accomplished  as  the  result 
of  exerting  in  the  pretended  capacity  an 
authority  which  there  would  have  been  a 
lawful  right  to  exert  if  the  character  had 
been  real,  and  not  assumed,  it  results  not 
only  that  the  conflict  which  we  have  indi- 
cated would  arise  from  adopting  the  con- 
struction claimed,  but  the  error  of  such 
contention  as  applied  to  the  first  clause  is 
conclusively  demonstrated. 

Indeed,  the  consideration  thus  given  the 
contention  in  question  was  unnecessary  be- 
cause its  error  is  persuasively  if  not  con- 
clusively established  by  the  ruling  in 
United  States  v.  Barnow,  239  U.  S.  74,  ante, 
155,  36  Sup.  Ct.  Rep.  19.  In  that  case  the 
accused  was  charged  under  both  clauses  of 
the  section  with  having  on  the  one  hand 
falsely  assumed  to  be  an  employee  of  the 
United  States,  actin«:  under  the  authoritv 
of  the  United  States,  "to  wit,  an  agent  em- 
ployed by  the  government  to  sell  a  certain 
•0  li.  ed. 


set  of  booka  entitled,  'Messages  and  Papers 
of  Presidents.'"  and  with  having  taken 
[116]  upon  himself  to  act  as  such  by  visit- 
ing a  named  person  for  the  purpose  of  car- 
rying out  the  intended  fraud,  and,  on  the 
other  hand,  under  the  second  clause  of  the 
section  with  having,  by  means  of  the  same 
false  personation,  obtained  a  sum  of  money. 
The  case  came  here  to  review  the  action 
of  the  court  below  in  sustaining  a  demurrer 
to  the  indictment  as  stating  no  offense  be- 
cause there  was  no  authorized  employee  of 
the  character  which  had  been  falsely  as- 
sumed, and  no  legal  authority  therefore  to 
have  done  the  overt  acts  with  which  either 
count  was  concerned.  The  judgment  was 
reversed  under  the  express  ruling  that  the 
existence  of  the  office  or  the  authority  was 
not  essential,  as  the  assumin^^  or  pretending 
to  be  and  act  as  an  officer  or  employee  of 
the  United  States  was  within  the  purview 
of  the  statute,  and  necessarily  embraced 
within  its  prohibitions. 

3.  It  is  urged  that  the  indictment  is  de- 
fective because  of  its  failure  to  describe  the 
circumstances  of  the  offense.  It  suffices  to 
say  that,  after  considering  them,  we  think 
that  the  many  authorities  cited  to  support 
the  contention  are  wholly  inapplicable  to 
the  conditions  disclosed  by  the  record,  and 
we  are  further  of  opinion  that  those  con- 
ditions make  it  clear  that  the  contention  is 
devoid  of  merit.  We  say  this  because  it 
will  be  observed  from  the  text  of  the  indict- 
ment which  we  have  previously  reproduced 
that  it  clearly  charges  the  illegal  acts  com- 
plained of  and  the  requisite  fraudulent  in- 
tent, states  the  date  and  place  of  the  com- 
mission of  the  acts  charged,  and  gives  the 
name  and  official  character  of  the  officer 
whom  the  accused  was  charged  with  having 
falsely  personated.  It  is,  moreover,  to  be 
observed  that  there  is  not  the  slightest  sug- 
gestion that  there  was  a  want  of  knowledge 
of  the  crime  which  was  charged  or  of  any 
surprise  concerning  the  same,  nor  is  there 
any  intimation  that  any  request  was  made 
for  a  bill  of  particulars  concerning  the  de- 
tails of  the  offense  charged.  Under  this 
situation  we  think  that  [117]  the  case  is 
clearly  covered  by  §  1025,  Revised  Statutes, 
Comp.  Stat.  1913,  §  1691.  Connors  v.  United 
States,  158  U.  S.  408,  411,  39  L.  ed.  1033, 
1034,  15  Sup.  Ct.  Rep.  051;  Armour  Pack- 
ing Co.  V.  United  States,  209  U.  8.  56,  84, 
52  L.  ed.  681,  695,  28  Sup.  Ct.  Rep.  428; 
New  York  C.  &  H.  R.  R.  Co.  v.  United 
States,  212  U.  S.  481,  497,  53  L.  ed.  613, 
623,  29  Sup.  Ct.  Rep.  304;  Holmgren  v. 
United  States,  217  U.  S.  509,  523,  64  L. 
ed.  861,  867,  30  Sup.  Ct.  Rep.  588,  19  Ann. 
Cas.  778. 

4.  It  is  insisted  that  there  was  no  proof 
whatever  tending  to  show  an  intent  to  de- 


117-119 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  Tebm, 


fraud  or  to  establiah  criminality  under  tbc 
section  relied  upon,  and  therefore  there 
should  have  been  an  instruction  to  acquit. 
In  so  far  as  the  proposition  concerns  the 
absence  of  proof  of  the  doing  of  an  overt 
act  which  was  authorized  by  law,  and  there- 
fore relates  to  the  wrongful  construction 
of  the  statute  which  we  have  previously 
pointed  out,  it  is  disposed  of  by  what  was 
said  on  that  subject.  As  to  the  want  of 
any  evidence  justifying  the  submission  of 
the  case  to  the  jury  on  the  question  of  the 
criminal  intent  relied  upon  or  of  the  acts 
charged,  we  content  ourselves  with  the 
statement  that,  after  a  close  scrutiny  of 
the  record,  we  are  of  the  opinion  that  the 
contention  is  wholly  without  merit  and 
that  the  case  was  clearly  one  where  the 
proof  was  of  such  a  character  as  to  justify 
its  being  submitted  to  the  jury  for  its  con- 
sideration. 

5.  Finally  we  come  to  consider  a  con- 
tention not  raised  in  the  trial  court,  not 
suggested  in  the  court  below  while  the  case 
was  there  pending  and  before  the  order  of 
dismissal  which  we  have  reviewed  was 
entered,  and  not  even  indirectly  referred 
to  in  this  court  when  the  case  was  pend- 
ing on  the  direct  ^Tit  of  error,  which  writ 
was,  as  we  have  seen,  dismissed  because 
it  presented  for  consideration  no  question 
of  jurisdiction  and  none  arising  under  the 
Constitution.  Indeed,  the  contention  now 
relied  on  was  for  the  first  time  urged  in  a 
supplemental  brief  filed  on  the  present 
hearing.  The  proposition  is  that  the  trial 
court  had  no  jurisdiction;  in  fact,  that  no 
such  court  existed,  because  the  trial  was 
presided  over  by  the  district  judge  of  the 
western  district  of  Michigan,  assigned  to 
the  [118]  southern  district  of  New  York 
conformably  to  the  statute  (chap.  18,  38 
Stat,  at  L.  203,  Comp.  Stat.  1913,  §  985), 
and  that  the  effect  of  such  assignment  under 
the  statute  was  virtually  to  destroy  the 
southern  district  of  New  York  by  creating 
a  new  district  whose  boundaries  were  un- 
defined, thus  violating  the  rights  secured 
to  the  accused  by  the  6th  Amendment,  since 
he  was  subjected  to  trial  in  a  district  not 
established  when  the  offense  with  which  he 
was  charged  was  committed.  In  fact,  the 
further  contention  is  made  that  to  assign 
a  judge  of  one  district  and  one  circuit  to 
perform  duty  in  another  district  of  another 
circuit  was  in  substance  to  usurp  the  power 
of  appointment  and  confirmation  vested  by 
the  Constitution  in  the  President  and 
Senate.  As  to  the  first  of  these  contentions, 
we  think  it  suffices  to  say  that  it  rests 
upon  a  construction  of  the  words  of  the 
statute  authorizing  the  assignment  of  a 
judge  of  one  district  and  circuit  to  duty 
in  another  district  and  circuit  which  is 
•  18 


I  wholly  unfounded,  and  which  rests  upon  a 
'  premise  confiicting  with  the  practice  of  the 
government  under  the  Constitution  sub- 
stantially from  the  beginning.  As  to  the 
second  contention,  we  think  merely  to  state 
it  suffices  to  demonstrate  ita  absolute  ub- 
soundness. 
Affirmed. 

Mr.  Justice  McBeynoIda  took  no  part 
in  the  consideration  or  decision  of  thia 
cause. 


[119]   UNITED  STATES,  Appt^ 

V. 

GEORGE  F.  ARCHER  and  Kate  C.  Archer 

(See  S.  C.  Reporter's  ed.  119-148.) 

Appeal  ~  from  court  of  claims  —  re- 
manding for  more  specific  findings. 

A  judgment  of  the  court  of  claims 
awarding  damages  for  the  alleged  total  de- 
struction of  a  plantation  as  the  result  of 
the  construction  of  a  dike  across  it  by  gov- 
ernment officers  or  agents  acting  under  Fed- 
eral legislation  creating  the  Mississippi 
River  Commission  must  be  reversed  and  tne 
case  be  remanded  for  more  particular  find- 
ings, where  the  findins  which  recites  the 
efl'ccts  upon  claimant's  property  is  too 
broad  in  its  inference,  and  the  findings 
otherwise  lack  precision,  mixing  statement 
with  inference,  and  not  clearly  distinguish- 
ing between  effects  caused  by  the  United 
States  and  those  caused  by  state  action. 
[For  other  cases,  see  Appeal  and  Error,  IX. 
i;  y.  o,  in  Digest  Sup.  Ct.  1908.] 

[No.  112.] 

Argued  December  7,  1915.    Decided  May  1, 

1916. 

APPEAL  from  the  Court  of  Claims  to  re- 
view a  judgment  awarding  damages  for 
the  destruction  of  a  plantation  from  the 
construction  of  a  dike  across  it  by  govern- 
ment officers  or  agents.  Reversed  and  re- 
manded for  further  proceedings. 
See  same  case  below,  47  Ct.  CI.  248. 


Note. — As  to  what  constitutes  a  taking 
of  property  by  eminent  domain — see  notes 
to  Memphis  &  C.  R.  Co.  v.  Birmingham,  S. 
&  T.  River  R.  Co.  18  LJLA.  166;  and  Sweet 
V.  Rechel,  40  L.  ed.  U.  S.  188. 

On  distinction  between  taking  or  damag- 
ing property  and  consequential  injuries — 
see  note  to  Gordon  v.  Bllenville  &  K.  R.  Co. 
47  LJl.A.(N.S.)   462. 

On  the  right  to  improve  navi^bili^  of 
stream — see  note  to  Beidler  v.  Sanitary  Dist. 
67  LJLA.  820. 

On  the  right  of  government  to  divert 
water  from  nontidal  stream  without  com- 
pensation to  riparian  owner — see  note  to 
Fulton  Light,  Heat  &  P.  Co.  v.  State,  37 
LJl.A.(N.S.)  307. 

941  U.  8. 


1915. 


UNITED  STATES  ▼.  ARCHEB. 


119-122 


Statement  by  Mr.  Justice  McKenna: 

Petition  in  the  court  of  claims  for  the 
recovery  of  $300,000  for  damages  alleged 
to  have  been  caused  by  the  officers  and 
agents  of  the  United  States  under  the  au- 
thority of  an  act  of  Congress  creating  the 
Mississippi  River  Commission  by  the  con- 
struction and  extending  of  a  dike,  known 
as  the  Iceland  dike,  upon  the  land  of  peti- 
tioners, called  the  Point  Chicot  plantation. 

A  demurrer  to  the  petition  was  overruled, 
and  after  answer  and  hearing  judgment  was 
rendered  for  claimants  in  the  sum  of  $54,- 
920,  to  review  which  this  appeal  is  prose- 
cuted. 

The  findings  were  necessarily  volumin- 
ous; we  condense  them  narratively  as  fol- 
lows: Claimants'  plantation  prior  to  the 
construction  of  the  levee  system  to  the 
state  of  completion  which  now  exists  was 
of  great  value  and  in  a  [120]  high  state 
of  cultivation,  being  reclaimed  lands  com- 
paratively free  from  overflows  of  the  Missis- 
sippi river  except  at  intervals,  the  recur- 
rence of  such  overflows  being  so  separated 
in  point  of  time  as  not  to  materially  affect 
either  the  value  or  the  productive  capacity 
of  the  plantation.  It  was  highly  improved 
with  houses  and  cabins  thereon  and  stocked 
with  laborers  and  tenants,  and  yielded  large 
crops. 

It  has  been  overflowed  at  certain  rises 
of  the  water  in  the  river  (the  rise  in  feet, 
according  to  certain  data,  is  given  from 
1844  to  1910),  and  during  the  twenty 
years  following  1891,  after  the  levee  system 
had  been  made  effective,  there  were  eight 
years  during  which  it  was  not  overflowed. 

Gauges  of  the  height  of  the  water  are 
taken  at  Memphis  and  Greenville.  Claim- 
ants' plantation  is  overflowed  whenever  the 
water  rises  to  135  feet,  Memphis  datum, 
and  it  has  been  more  or  less  overflowed 
every  year  except  two  years  (1872  and 
1889)  during  the  eighteen  years  prior  to 
1891,  up  to  which  time  the  levee  system 
had  not  been  completed  sufficiently  to  with- 
stand great  floods  and  the  outlets  unclosed; 
and  (luring  the  twenty  years  following 
1891,  after  the  levee  system  had  been  made 
effective  and  the  outlets  closed  by  the 
United  States  and  the  local  authorities, 
there  were  eight  years,  namely,  1894,  1895, 
1896,  1900,  1901,  1902,  1905,  and  1910, 
during  which  claimants'  land  was  not  over- 
flowed. 

The  plantation  is  overflowed  at  a  stage 
of  38  feet  on  the  Greenville  gauge,  or  when- 
ever the  surface  water  rises  to  135  feet, 
Memphis  datum,  and  the  gauge  readings 
show  that  of  the  fifteen  years  from  1882  to 
1896,  inclusive,  there  were  only  four  years 
in  which  this  stage  was  not  exceeded,  and 
that  for  the  fourteen  yean  from  1897  to  ^ 
«0  li.  ed. 


1910,  inclusive,  th^re  were  five  years  in 
which  this  stage  of  38  feet  on  the  Greenville 
gauge  was  not  exceeded. 

From  time  immemorial  the  waters  of  the 
river  during  its  [121]  highest  stages,  when 
not  contained  within  the  low-water  banks, 
have  naturally  found  outlets  through  cer- 
tain basins  (they  are  mentioned)  and 
through  the  rivers  draining  them  into  the 
Gulf  of  Mexico.  And  the  plantations  that 
were  not  overflowed  so  frequently  before 
such  outlets  were  closed  by  levee  construc- 
tion were  consequently  little  injured  hy 
overflows. 

Prior  to  1883  the  state  and  local  author- 
ities constructed  a  system  of  levees,  miles 
of  which  were  destroyed  in  1882. 

Beginning  in  1883  the  officers  of  the 
United  States,  imder  the  authority  of  an 
act  of  Congress  creating  the  Mississippi 
River  Commission,  and  other  acts  amenda- 
tory thereof,  adopted  the  so-called  Eads 
plan,  and  in  consequence  thereof  have  pro- 
jected and  constructed  •  levees  on  both 
sides  of  the  river  for  various  distances 
from  Cairo,  Illinois,  to  near  the  Head  of 
the  Passes,  a  distance  of  1,050  miles  from 
Cairo;  and  the  local  authorities  along  the 
river  on  both  sides  from  Cairo  to  the  Gulf 
have  before  and  since  also  constructed  and 
maintained  levees  at  various  places  and  of 
various  lengths  for  the  purpose  of  protect- 
ing and  reclaiming  land  within  their  respec- 
tive districts. 

The  levee  lines  so  constructed  by  the 
United  States  and  local  authorities  have 
been  practically  joined,  with  the  result  ol 
confining  the  river  within  a  narrow  scope, 
increasing  its  velocity  and  elevation  and 
the  strength  of  its  current.  The  highest 
elevation  is  approximately  6  feet  in  times 
of  high  water,  and  the  plan  of  the  United 
States  was  to  increase  the  scouring  power 
of  the  water,  deepen  the  channel  and  im- 
prove navigation,  and  that  of  the  local 
authorities  to  reclaim  and  to  protect  the 
land  on  both  sides  of  the  river  from  over- 
flowing at  times  of  high  water. 

From  time  immemorial  the  high-water 
bed  of  the  river  has  been  between  the  high- 
lands on  the  east  side  and  the  highlands  on 
the  west  side,  and  the  claimants'  plantation 
is  within  this  boundary;  that  is,  between 
the  highlands  on  the  Mississippi  side  and 
the  highlands  on  the  Arkansas  [122]  side, 
and  has  been  occasionally  overflowed  at 
times  of  high  water,  as  stated  above,  before 
as  well  as  sinee  tiie  construction  of  the 
levees. 

From  Cairo  to  the  mouth  of  the  Yazoo 
river  the  Mississippi  river  is  practically 
leveed  on  both  sides,  except  on  the  east  side, 
where  the  highlands  abut  on  or  very  near 
the  river  in  Kentucky  and  Tennessee^  sxid 


122-124 


SUPREMB  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbbic, 


there  is  a  gap  in  the  line  of  levees  of  234 
miles  from  the  mouth  of  the  Yazoo  river 
to  Baton  Rouge,  unleveed. 

Hie  extension  of  the  levee  system  has 
resulted  in  an  increased  elevation  of  the 
general  flood  levels  which  subjects  claim- 
ants* land  to  a  deeper  overflow  than  they 
were  subjected  to  formerly,  and  consequent- 
ly has  somewhat  reduced  its  value  for  agri- 
cultural purposes.  The  immediate  cause 
of  the  deeper  overflow  on  claimants'  land 
is  the  increased  elevation  of  the  flood 
heights,  which  is  the  result  of  the  general 
confinement  of  the  flood  discharge  by  the 
levee  system  as  a  whole. 

During  the  flood  waters  of  1882  the  levees 
failed  throughout  the  length  of  the  river. 
In  1884  the  crevasses  were  still  open  in  all 
basins.  They  were  open  and  closed  in  sub- 
sequent years  (which  are  given) ;  they 
were  all  closed  in  1904  to  1910.  In  conse- 
quence of  the  closing  of  the  natural  basins, 
outlets,  and  crevasses,  overflowed  lands  on 
both  sides  of  the  river  have  been  reclaimed 
and  protected  from  overflow  in  times  of 
high  water  and  vast  benefit  has  accrued  to 
the  states  of  Illinois,  Kentucky,  Tennessee, 
Mississippi,  Arkansas,  and  Louisiana,  but 
the  land  of  claimants,  situated  between  the 
levees,  and  outside  thereof,  and  not  pro- 
tected thereby,  has  been  subjected  to  re- 
peated overflow,  tending  to  diminish  and 
impair  its  value,  but  to  what  extent  does 
not  satisfactorily  appear  from  the  evidence. 

A  part  of  the  levee  system  runs  back  of 
claimants'  plantation,  not  touching  the 
same,  and  between  it  and  the  plantation  is 
a  stretch  of  ground  lower  than  the  main 
[123]  body  of  the  plantation,  and  in  pe- 
riods of  high  water  the  water,  rising  and 
passing  over  and  upon  said  land,  has,  by 
reason  of  its  lowness,  first  gone  thereupon, 
and  its  main  current  was  across  said  land, 
and  not  upon  the  plantation,  which,  while 
in  extreme  high  water  it  would  be  flooded, 
did  not  have  the  full  force  of  the  current  of 
the  river,  but  was  covered  in  part  or  in 
whole  by  slacker  water.  The  current  dur- 
ing high-water  seasons  struck  against  the 
hevee  back  of  claimants'  plantation,  eroding 
and  washing  it  away,  to  the  great  danger  of 
its  existence  and  the  inundation  of  the 
lands  to  the  rear  thereof  and  diverting  the 
water  from  the  channel  of  the  river.  A 
breach  or  crevasse  in  the  levee  would  have 
entailed  damage  to  it  and  to  the  adjacent 
landowners,  and  impaired  the  efficacy  of  the 
levee  system  as  projected,  constructed,  and 
maintained  by  the  officers  of  the  Mississippi 
River  Commission  in  accordance  with  the 
plans  heretofore  stated. 

In  addition  to  the  danger  to  the  levee, 
the  current,  impinging  upon  the  banks  of 
the  stream  and  the  neck  of  the  land  ad- 
•  20 


joining  Point  Chicot  to  the  mainland,  cut- 
ting into  it,  threatened  to  and  would  have, 
if  permitted  to  continue,  cut  through  the 
neck  of  land,  thus  straightening  the  channd 
and  making  the  plantation  an  island. 

In  order  to  prevent  the  threatened  danger 
to  the  levees  and  the  neck  of  land,  the  offi- 
cers of  the  United  States,  acting  under  the 
authority  of  the  acts  of  Congress,  and  the 
Mississippi  River  Commission,  constructed 
what  is  laiown  as  the  Leland  dike,  nmning 
diagonally  and  at  an  angle  from  the  main 
line  of  levee  on  the  Arkansas  side  acroaa 
and  on  the  land  of  claimants  to  a  point 
662  feet  beyond  where  the  line  of  the  plan- 
tation begins,  their  object  being  to  divert 
the  current  of  the  stream  during  high  wa- 
ters from  impinging  upon  the  levee,  and, 
by  throwing  it  northeastward  by  the  dike, 
to  prevent  the  destruction  of  the  levee  and 
the  cutting  across  the  neck  of  land. 

The  dike  first  went  into  and  on  the  land 
a  distance  of  662  [124]  feet,  but,  its  end 
being  exposed  to  the  waters  of  the  river  and 
to  its  powerful  current,  the  officers  deemed 
it  necessary  to  extend  the  dike  a  distance  of 
some  2,700  feet  farther  upon  the  land  of 
claimants,  and  did  so  extend  it  in  1007 
without  any  condemnation  of  the  land  and 
with  no  remuneration  therefor  being  made 
to  claimants.  A  large  part  of  the  soil  was 
used  for  tliis  construction. 

Before  the  United  States  joined  the  levee 
lines  in  accordance  with  the  Eads  plan, 
thus  making  the  same  continuous,  there  were 
occasional  overflows  of  the  plantation,  but 
they  have  been  made  deeper  and  more  force- 
ful by  the  adoption  of  such  system.  But 
before  the  erection  of  the  dike  the  overflows 
did  not  materially  damage  the  plantation^ 
and  it  remained  still  valuable  for  agri- 
cultural purposes.  By  the  extension  of  the 
dike  the  high-water  current  of  the  river 
has  been  deflected  over  and  across  a  large 
part  of  the  plantation,  but  flows  in  the 
same  direction  as  did  a  portion  of  the  high 
waters  of  the  river  before  the  erection  of 
the  dike, — but  with  greater  force  and  depth, 
— ^the  escape  of  a  portion  of  the  high  watera 
over  and  across  the  neck  of  land  being 
thereby  prevented,  in  consequence  of  which 
the  overflows  of  the  plantation  have  been 
greatly  increased  and  intensified,  the  result 
of  which  has  been  to  wash  and  scour  out  its 
top  soil  and  to  deposit  upon  a  large  part  of 
the  plantation  great  burdens  of  sand  and 
gravel,  and  3,696  acres  have  been  thereby 
rendered  totally  unfit  for  cultivation  or 
any  other  profitable  use.  This  result  has 
been  caused  partly  by  the  joining  of  the 
levee  systems  and  the  erection  of  said  dike» 
but  directly  and  proximately  by  the  erec- 
tion of  said  dike. 

The  lines  of  levees  constructed  In  pcuri 

941  V.  8. 


1915. 


UNITED  STATES  v.  ARCHER. 


124,  125,  127,  128 


by  the  officers  of  the  United  States  and  in 
part  by  the  officers  and  agents  of  the  local 
organizations  of  the  states  bordering  on  the 
river  to  1909  had  a  length  of  1,548  miles 
and  contained  229,729,354  cubic  yards. 
The  officer?  of  the  United  States  construct- 
ed 1,050  miles  of  the  total.  Since  1909 
[125]  the  authorities  of  the  United  States 
have  built  additional  lines  of  levees  con- 
taining 2,970,224  cubic  yards,  and  the  local 
authorities  lines  of  levees  containing  5,- 
063,427  cubic  yards,  thus  bringing  the  work 
of  levee  construction  up  to  the  year  1910. 

The  3,690  acres  of  land  damaged  as 
stated  was,  at  the  time  of  the  erection  of 
the  dike,  of  the  value  of  $83,920,  and  3i  A 
acres  of  the  same  is  actually  and  wholly 
occupied  by  the  United  States  by  the  con- 
struction of  the  dike,  and  the  balance,  to 
wit,  3,664^  acres,  has  been  destroyed  and 
rendered  wholly  unfit  for  cultivation  or 
any  other  profitable  use.  The  land  is  de- 
scribed. 

As  an  ultimate  fact,  the  court  finds,  in  so 
far  as  it  is  a  question  of  fact,  the  3,696 
acres  of  land  was  somewhat  impaired  in 
value  by  the  construction  of  the  levee  sys- 
tem, but  that  its  use  was  totally  destroyed 
by  the  erection  of  the  Leland  dike,  and  was 
thereby  taken,  its  value  at  the  time  of  such 
destruction  and  taking  being  $83,920. 

Before  this  suit  was  brought  George  F. 
Archer,  one  of  the  claimants,  brought  a  suit 
in  the  United  States  circuit  court  for  the 
western  district  of  Arkansas  against  the 
board  of  levee  inspectors  of  Chicot  county, 
Arkansas,  for  the  damages  arising  from 
the  erection  of  said  dike  and  the  taking  of 
the  31  iS  acres  of  land.  A  demurrer  by  the 
defendants  to  the  complaint  was  overruled 
(128  Fed  125);  and  thereafter  and  before 
the  beginning  of  this  suit  Archer  discon- 
tinued the  suit  brought  against  the  board. 

The  ownership  of  the  plantation  by  the 
claimants  was  found.  From  the  findings  of 
fact  the  court  concluded  that  claimants 
were  entitled  to  a  judgment  of  $54,920. 

Solicitor  General  Davis  argued  the  cause, 
and,  with  Mr.  Robert  Szold,  filed  a  brief 
for  appellant. 

Mr.   Percy  Bell   argued  the  cause  and  J 
filed  a  brief  for  appellees. 

Mr.  Justice  McKenna,  after  stating  the 
case  as  above,  delivered  the  opinion  of  the 
court: 

Upon  the  findings  as  thus  made  the  par- 
ties to  the  action  base  opposing  conten- 
tions, llie  government  asserts  that  the 
government's  liability  is  limited  to  the  land 
actually  taken,  and  all  other  damages  are 
consequential.  In  other  words,  that  the 
•0  li.  ed. 


I  appropriation  of  the  land  and  the  erection 
,  of  the  Leland  dike  put  the  government  in 
the  position  of  owner  of  the  land,  with  the 
rights  and  liabilities  of  owner,  and  that 
besides,  it  had  the  rights  of  government  to 
improve  navigable  waters.  There  was  con- 
cesssion  or  some  concession  of  the  conten- 
tion by  the  court  of  claims  in  its  opinion. 
The  court  [47  Ct.  CI.  265],  through  Mr. 
Justice  Barney,  said: 

"In  the  decision  of  this  case  it  may  be 
admitted  that  if  the  government  had  owned 
the  site  of  the  Leland  dike  at  the  time  of 
its  erection,  or  if  it  had  been  owned  by  a 
stranger  to  this  suit,  and  hence  had  made 
no  invasion  upon  the  lands  of  the  plaintiff, 
it  would  not  have  been  [128]  liable  for  the 
destruction  thereby  inflicted,  under  the  rul- 
ing in  the  Bedford  Case,  192  U.  S.  217,  48 
L.  ed.  414,  24  Sup.  Ct.  Rep.  238." 

But  it  was  further  said:  "Under  the 
decisions  of  the  Supreme  Court  in  all  cases 
of  this  character,  it  is  the  invasion  upon 
the  lands  and  the  actual  and  visible  pos- 
session which  constitutes  the  taking,  and 
when  thus  taken,  all  of  the  consequences 
incident  to  such  invasion  necessarily  fol- 
low, among  which  is  the  liability  to  pay 
for  the  damage  thereby  occurring  to  the 
balance  of  the  tract  to  which  the  land  thus 
taken  belongs."  Citing  United  States  v. 
Grizzard,  219  U.  S.  180,  55  L.  ed.  165,  31 
L.R.A.(N.S.)  1135,  31  Sup.  Ct.  Rep.  162. 

Claimants  concede  the  power  of  the  gov- 
ernment over  the  river,  and  that  they  "do 
not  base  their  claim  upon  any  raising  of  the 
flood  levels  of  the  Mississippi  river,  although 
it  is  stated  by  them  and  was  found  as  a 
fact  by  the  lower  court  that  the  high -water 
flood  level  of  the  Mississippi  river  had  been 
raised  6  feet  by  the  completion  of  the  gen- 
eral levee  system." 

They  "recognize  the  fact  that  the  right 
of  the  United  States  government  to  com- 
plete the  levee  system  and  maintain  the 
same  is  indisputable,  and  that  any  purely 
incidental  injury  which  might  have  resulted 
to  them  solely  from  raising  the  flood  level 
would  be  a  damnum  absque  injuria,  Thej 
claim  nothing  by  reason  of  said  fact,  ad- 
ducing the  same  merely  by  way  of  induce- 
ment as  showing  that  the  ruin,  which  would 
inevitably  have  come  to  their  plantation 
from  the  deflecting  thereon  of  the  flood 
waters  by  the  construction  of  Leland  dike, 
was  merely  accelerated  and  expedited,  but 
not  caused,  by  the  raising  of  the  flood  leveL 

"Their  claim  is  that  the  deposit  of  sand 
and  gravel  and  the  destruction  of  their 
lands  thereby  were  a  direct  and  immediate 
result  of  the  construction  of  the  dike  which 
was  built  on  their  plantation,  using  a  part 
of  it  for  the  base  thereof  and  the  material 
thereof,  and  conatructing  the  same  without 


129-181 


SUPREMB  OOURT  OF  THE  UNITED  STATES. 


Oct.  TkiM, 


any  condemnation  of  their  lands  and  [120] 
ouster  of  them  therefrom,  which,  with  the 
destruction,  constituted  the  taking  of  their 
lands  within  the  meaning  of  the  5th  Amend- 
ment, and  entitled  them  to  compensation 
therefor." 

And  they  rely  on  United  States  t.  Grix- 
zard,  supra,  and  other  cases,  and  distin- 
guish the  Jackson  Case,  230  U.  S.  1,  67  L. 
ed.  1363,  33  Sup.  Ct.  Rep.  1011,  and  the 
Hughes  Case,  230  U.  S.  24,  57  L.  ed.  1874, 
46  L.R.A.(N.S.)  624,  33  Sup.  Ct.  Rep. 
1019. 

A  serious  proposition  of  law  is  henoe  pre- 
sented by  the  contentions,  and  controversy 
arises,  as  we  have  seen,  whether  an  appro- 
priation of  the  land  without  condemnation 
proceedings  can  have  different  legal  results 
from  its  appropriation  by  such  proceed- 
ings. In  other  words,  whether  compensa- 
tion for  the  land  appropriated  in  either  case 
would  be  the  only  measure  of  relief,  and  its 
payment  or  recovery  transfer  ownership  of 
the  land  and  the  rights  of  ownership. 

But  before  reaching  decision  on  this 
proposition  questions  of  fact  confront  us. 
It  will  be  observed  that  the  findings  are 
somewhat  involved,  mixing  statement  with 
inference;  indeed,  it  may  be  said,  even  with 
prophecy.  And  it  may  be  said  again  (we 
say  "may  be  said"  to  avoid  the  expression 
of  a  definite  judgment  at  this  time)  that 
there  are  effects  caused  by  the  United  States 
and  effects  caused  by  the  state  which  are 
not  distinguished.  We  think  there  should 
be  more  precision.  Great  problems  con- 
fronted the  national  and  state  governments; 
great  and  uncertain  natural  forces  were  to 
be  subdued  or  controlled,  great  disasters 
were  to  be  averted,  great  benefits  acquired. 
There  might  be  liability  to  the  individual; 
if  so,  the  liability  should  be  clear,  the 
cause  of  it  direct  and  certain.  This  we  ex- 
plained in  Jackson  v.  United  States,  230 
U.  8.  1,  57  L.  ed.  1363,  33  Sup.  Ct.  Rep. 
1011,  and  in  Hughes  v.  United  States,  230 
U.  S.  24,  67  L.  ed.  1374,  46  L.R.A.(N.S.) 
624,  33  Sup.  Ct.  Rep.  1019.  There  is  an 
effort  in  the  present  case  to  satisfy  these 
conditions,  but  we  do  not  think  it  goes  far 
enough. 

The  finding  which  recites  the  effects  upon 
claimants'  property  is  as  follows:  "In  ad- 
dition to  the  danger  which  [130]  threat- 
ened the  levee  [that  is,  by  the  concentration 
of  the  current  and  during  seasons  of  hi^ 
water],  said  current,  impinging  upon  the 
banks  of  the  stream  and  the  neck  of  land 
adjoining  Point  Chicot  to  the  mainland, 
cutting  into  it,  threatened  to  and  would 
have,  if  permitted  to  continue,  cut  through 
said  neck  of  land,  thus  straightening  the 
channel  and  making  Point  Chicot  planta- 
tion   an    island."    In    other    words,    it    is 


found  that  but  for  the  dike  the  river  would 
have  cut  throu^  the  nedc  of  land.  Or,  to 
express  it  another  way,  the  dike  kept  the 
river  in  its  channeL  But,  as  we  have  seen, 
many  forces  were  at  work,  and  if  the  condi- 
tions at  claimants'  plantation  were  arti- 
ficial, they  were  the  result  of  the  lawful 
exercise  of  power  over  navigable  rivers. 

The  finding  seems  to  be  definite,  but  it 
is  too  broad  in  its  inference.  It  may  indeed 
be  a  just  inference,  but  the  elements  are 
wanting  upon  which  a  Judgment  can  be  with 
assurance  pronounced.  Besides,  there  were 
two  agencies  at  work,  national  and  state, 
in  the  construction  of  the  levees.  There  is 
no  distribution  of  liability;  all  the  results 
to  claimants'  plantation  are  assigned  to  the 
government.  Yet  it  is  found  that  the  claim- 
ants at  one  time  conceived  that  the  local 
authorities  were  the  offenders, — ^that  is, 
the  board  of  levee  inspectors  of  Arkansas 
was  alone  responsible,  and  brought  aa 
action  against  the  board.  In  passing  upon 
the  ground  of  action  and  its  sufficiency, 
challenged  by  demurrer,  the  court  said  that 
the  action  "was  instituted  to  recover  dam- 
ages alleged  to  have  been  sustained  by  him 
[Archer]  by  reason  of  the  trespass  of  the 
def^idant  [the  board  of  levee  inspectors], 
who  unlawfully,  with  force  and  arms, 
entered  upon  his  premises — a  plantation 
in  the  county  of  Chicot— and  built  a  levee 
thereon,  without  having  made  compensation 
therefor."  The  demurrer  was  overruled,  the 
court  expressing  the  view  that  the  action 
could  be  maintained,  and  intimated  an  opin- 
ion that  an  injunction  might  have  been 
granted  to  enjoin  the  [131]  trespass,  but 
that  Archer  could  elect  an  action  for  dam- 
ages. 

The  action  was  discontinued.  We  are  not 
informed  by  the  findings  for  what  reason. 
It  may  have  been  for  good  reason;  we  make 
no  intimation  to  the  contrary;  but  its  com- 
mencement and  subsequent  discontinuance 
suggest  some  questions  which  may  lead  to 
answers  pertinent  to  be  considered.  In  that 
action  the  trespass  upon  claimants'  planta- 
tion by  the  construction  of  the  Leland  dike 
was  attributed  to  the  local  levee  board;  in 
the  action  at  bar  it  is  ascribed  exclusively 
to  the  officers  of  the  United  States,  and  it 
is  averred  that  the  encroachment  of  the 
trespass  was  at  different  times,  and  to  a 
greater  extent  the  second  than  the  first 
time.  Did  claimants  object  at  either  time? 
And  if  not,  why  not?  Upon  the  answer 
may  depend  a  serious  legal  question.  Or,  if 
they  were  silent,  why  were  they  silent? 
What  were  the  local  conditions  which  called 
for  judgment,  not  only  the  general  eon- 
ditions  to  which  we  have  adverted  and  the 
findings  describe,  but  the  exact  conditions 
as   to    claimants'    property?     Did    danger 

S41  U.  8. 


1910. 


UNITED  STATES  v.  ARCHKK. 


181-184 


threaten  it  before  the  erection  of  the  dike 
as  well  as  threaten  the  levees?  As  we  have 
said,  great  forces  were  in  operation  and  a 
judgment  or  prediction  of  their  effect  might 
have  been  difficult  and  uncertain,  and  claim- 
ants have  regarded  the  dike  as  a  protection 
to  their  plantation  as  well  as  to  the  levees. 

The  flow  of  the  river  is  towards  the  Qulf, 
and  necessarily  the  water  is  always  higher 
on  the  upper  side  of  the  reaches  or  bends 
such  as  exist  at  claimants'  plantation.  It 
may  be  inferred,  therefore,  that  the  pressure 
of  the  water,  compounded  of  its  velocity 
and  volume,  is  greatest  at  the  recesses  or 
apices  of  the  bends,  has  its  first  effect  there, 
but  necessarily  extends  along  the  whole  con- 
cave shore.  At  first,  of  course,  there  would 
be  a  break  at  the  neck  or  narrowest  part, 
but  would  it  not  successively  extend  until 
the  whole  mass  would  crumble  and  a  wide 
breach  be  [132]  formed,  through  which  the 
river  would  pour  with  its  full  eroding  force? 
And  that  such  might  be  the  effect  we  j^ather 
from  the  report  of  the  United  States  engi- 
neers, of  which  we  take  judicial  notice.  It 
certainly  may  be  questioned,  therefore, 
whether  the  river,  breaking  through  at  the 
neck,  would  have  confined  itself  to  a  nar- 
row channel,  ''making  Point  Chicot  planta- 
tion an  island/'  and  would  not  have  perma- 
nently submerged  it  or  swept  it  away.  The 
Leland  dike  prevented  a  demonstration  of 
experience,  but  it  would  seem  that  examples 
elsewhere  on  the  river  could  give  testimony 
of  what  would  have  occurred  if  the  dike 
had  not  been  constructed.  It  may  be  they 
were  adduced,  it  may  be  expert  testimony 
was  heterd  and  all  pertinent  facts  exhibited 
to  the  court,  and  its  finding  is  a  true  de- 
duction from  the  testimony  and  the  facts. 
We  think,  however,  as  we  have  already  said, 
it  is  too  broad  in  its  inference,  and  that 
therefore  the  case  should  be  remanded  to 
the  court  for  more  particular  findings  on 
the  testimony  in  the  case,  or,  in  the  discre- 
tion of  the  court,  upon  further  testimony  to 
be  taken;  and  the  case  should  be  given  such 
despatch  as  may  be  consistent  with  such 
purposes. 

In  what  we  have  said  no  opinion  is  in- 
tended to  be  expressed  of  the  case  as  it  is 
presented  or  may  be  presented,  and  all  ques- 
tions of  law  are  reserved. 

Judgment  reversed  and  cause  remanded 
for  further  proceedings  in  accordance  with 
this  opinion. 

Mr.  Justice  McReynolds  took  no  part  in 
the  consideration  and  decision  of  this  case. 

Mr.  Justice  Pitney,  dissenting: 
Being  unable  to  perceive  that  the  facts 
found  by  the  court  of  claims  are  in  any  ma- 
terial respect  lacking  in  oertainty,  or  are  inr 
#0  Ii.  ed. 


adequate  to  support  the  judgment  of  that 
court,  I  am  constrained  to  record  my  dis- 
sent. 

[133]  The  salient  facts  included  in  the 
findings  are  as  follows:  Claimants'  planta- 
tion comprises  about  6,000  acres,  and  in- 
cludes the  whole  or  the  greater  part  of 
Point  Chicot,  on  the  Arkansas  side  of  the 
Mississippi  river.  Point  Chicot  is  a  penin- 
sula formed  by  a  sweep  of  the  river,  being 
joined  at  its  southwesterly  end  to  the  back 
land  by  a  narrow  neck  of  comparatively  low 
land,  which  is  the  property  of  others  than 
the  claimants.  The  river  flows  easterly  past 
this  neck  of  land  on  its  upper  or  northwest- 
erly side,  and  after  flowing  around  ^the 
Point,  passing  the  important  town  of  Green- 
ville, which  is  on  the  easterly  or  Mississippi 
side,  it,  of  course,  flows  psst  the  southerly 
side  of  the  plantation  and  of  the  neck  of 
land,  on  its  way  to  the  Gulf.  The  distance 
on  the  course  of  the  river  from  the  upper 
side  of  the  neck  of  land  to  the  lower  is 
approximately  13  miles,  while  the  distance 
across  the  neck  is  less  than  a  mile.  The 
situation  is  clearly  shown  upon  the  map  an- 
nexed to  the  findings  of  the  court  of  claims, 
and  reproduced  with  the  report  of  the  case. 
47  Ct.  CL  248,  264. 

The  findings  show  that  levee  construction 
work  of  two  different  kinds  has  been  in 
progress  along  the  Mississippi  river  for 
more  than  thirty  years.  On  tlie  one  hand, 
the  states  and  local  organizations  of  the 
states  bordering  the  river  on  both  sides 
have,  both  before  and  since  the  year  1883, 
constructed  and  maintained  certain  lines  of 
levees  at  various  places  and  of  various 
lengths,  for  the  purpose  of  protecting  and 
reclaiming  land  within  their  respective  dis- 
tricts from  overflow  in  times  of  high  water. 
The  lands  of  claimants  are  not  included 
within  any  such  levee  district,  and  are  not 
affected  by  any  state  or  local  levee  construc- 
tion except  as  such  construction  has  con- 
tributed to  closing  certain  natural  outlets 
that  formerly  accommodated  the  flood 
waters  of  the  river,  the  result  of  closing  the 
outlets  being  to  raise  the  elevation  of  the 
river  in  times  of  high  water.  On  the  other 
hand,  beginning  about  the  year  1883,  and 
continuing  to  the  present  time,  [134]  the 
officers  and  agents  of  the  United  States,  in 
pursuance  of  an  act  of  Congress  creating 
the  Mississippi  River  Commission  and  other 
acts  amendatory  thereof,  and  for  the  im- 
provement of  the  river  for  navigation,  have 
adopted  the  so-called  Eads  plan,  and,  in 
pursuance  of  it,  have  projected,  construct- 
ed, and  maintained,  and  are  engsged  in  con- 
structing and  maintaining,  certain  lines  of 
levees  on  both  sides  of  the  river  atv^turious 
places;  the  plan  being  to  increase  the  Te- 
locity and  scouring  power  of  the  water, 

0SS 


184-180 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oor.  Tkuc, 


and  thus  deepen  the  channel  of  the  river  and 
improve  it  for  navigation. 

The  findings  show  that  "the  extension  of 
the  general  levee  system  by  the  United 
States  and  the  local  authorities  has  result- 
ed in  an  increased  elevation  of  the  general 
flood  levels,  which  subjects  the  claimants' 
lands  to  deeper  overflow  than  they  were  sub- 
ject to  formerly  or  would  be  subject  to  now 
if  the  levee  system  were  not  in  existence, 
and  consequently  somewhat  reduced  its 
value  for  agricultural  purposes,"  and  this 
because  "the  lands  of  claimants,  situated 
between  said  levees  and  on  the  outside 
thereof,  and  not  protected  thereby,  have 
been  subjected  to  repeated  overflow,  tending 
to  diminish  and  impair  their  value,  but  to 
what  extent  does  not  satisfactorily  appear." 

It  is  important  to  observe  that  for  the 
diminution  of  the  value  of  claimants'  land 
thus  produced  by  the  general  effect  of  levee 
construction,  state  and  national,  no  com- 
pensation is  claimed  from  the  United  States, 
and  no  part  of  such  diminution  is  included 
in  the  amount  of  the  judgment  awarded  by 
the  court  of  claims. 

But  it  came  to  pass  that  "a  part  of  the 
levee  system  so  constructed  and  maintained 
runs  back  of  said  Point  Chicot  plantation, 
not  touching  the  same  [whether  this  was  a 
part  of  the  state  or  of  the  national  system 
does  not  appear  from  the  findings,  and  is 
quite  immaterial,  for  it  was  not  this  that 
encroached  upon  claimants'  land  or  caused 
an  actual  invasion  of  it  and  direct  damage 
to  it  J,  [135]  and  that  between  it  and  said 
Point  Chicot  plantation  is  a  stretch  of 
ground  lower  than  the  main  body  of  said 
plantation  [this  is  the  neck  of  land  already 
mentioned,  owned  by  other  parties,  and,  as 
the  map  shows,  it  extends  for  nearly  a  mile 
from  the  face  of  the  levee  to  claimants'  near- 
est boundary  line],  and  in  periods  of  high 
water,  the  water  rising,  passing  over  and 
upon  said  land,  has,  by  reason  of  its  low- 
ness,  first  gone  thereupon,  and  its  main  cur- 
rent was  across  said  land,  and  not  upon 
Point  Chicot  plantation,  which,  while  in  ex- 
treme high  water  it  would  be  flooded  as 
hereinabove  set  forth,  did  not  have  the  full 
force  of  the  current  of  the  Mississippi  river 
thereupon,  but  was  covered  in  part  or  in 
whole  by  shtcker  water. 

"The  current  during  high-water  seasons 
(being)  as  aforesaid  struck  against  and  im- 
pinged upon  the  said  levee  back  of  said 
Point  Chicot  plantation  and  protecting  the 
lands  on  the  interior,  and  such  impingement 
resulted  in  the  waters  of  said  river  eroding 
and  washing  away  said  levee,  to  the  great 
danger  of  its  existence,  and  threatening  to 
break  through  said  levee  and  inundate  said 
lands  to  the  rear  thereof  [not  claimants' 
lands]  and  divert  the  water  from  the  chan- 
•24 


nel  of  the  river.  Such  breach  or  crevasse 
in  said  levee  would  have  entailed  damage 
thereunto  and  to  the  adjacent  landowners 
[not  to  claimants],  and  impaired  the  effi- 
cacy of  said  levee  system  as  projected,  con- 
structed, and  maintained  by  the  ofllcers  of 
said  Mississippi  River  Commission  in  ac- 
cordance with  the  plans  heretofore  stated. 
In  addition  to  the  danger  which  threatened 
the  levee,  said  current  impinging  upon  the 
banks  of  the  stream,  and  the  neck  of  land 
adjoining  Point  Chicot  to  the  mainland, 
cutting  into  it,  threatened  to  and  would 
have,  if  permitted  to  continue,  cut  through 
said  neck  of  land  [owned  by  others  than 
claimants],  thus  straightening  the  channel 
and  making  Point  Chicot  plantation  an  is- 
land." 

It  is  obvious  that  the  straightening  of 
the  channel,  by  permitting  the  river  to  make 
a  *'cut-ofl^"  at  the  neck  of  [136]  land,  would 
have  sent  the  principal  flow  of  the  river 
through  the  shorter  route,  thus  interfering 
with  and  probably  closing  navigation  along 
the  13  miles  of  river  around  Point  Chicot,  to 
the  especial  detriment  of  navigation  at 
Greenville.  For  it  is  a  well-known  fact,  and 
a  subject  of  official  comment,  that  when  the 
river  forms  a  new  channel  for  itself  across 
such  a  neck  of  land,  the  old  bed  has  a  ten- 
dency to  fill  up  at  the  head  and  foot  and 
become  a  lake.  There  are  many  crescent- 
shaped  lakes  in  the  Mississippi  bottom 
lands,  thus  caused.  Rep.  Sec.  War,  1(^5, 
vol.  2,  pt.  2,  p.  499.  In  many  cases  the  en- 
tire bed  along  the  former  and  more  circui- 
tous channel  has  been  transformed  into  dry 
land,  or  nearly  so.  Two  historic  instances 
of  this  kind  have  given  rise  to  interststa 
suits  now  pending  on  the  original  docket 
of  this  court:  No.  6,  Original,  Arkansas  v. 
Tennessee,  turns  upon  the  effect  of  the  *'Cen- 
tennial  Cut-off"  of  1876,  while  in  No.  10, 
Original,  Arkansas  v.  Mississippi,  the  effect 
of  the  cut-off  of  1848  is  the  subjeet  of  in- 
quiry. We  can  thus  appreciate  the  situa- 
tion, in  view  of  which  the  powers  of  the 
government  of  the  United  States  were  put 
forth  in  the  taking  of  a  considerable  por- 
tion of  claimants'  land,  as  is  shown  by  the 
findings  that  follow. 

In  order  to  prevent  the  threatened  din- 
ger to  the  levees  and  the  neck  of  land,  the 
officers  of  the  United  States,  acting  under 
the  authority  of  the  acts  of  Congress,  and 
the  Mississippi  River  Commiasion,  con- 
structed what  is  known  as  the  Leland  dike, 
running  diagonally  and  at  an  angle  from 
the  main  line  of  levee  on  the  Arkansas  side, 
across  and  on  the  land  of  claimants  to  a 
point  662  feet  beyond  where  the  line  of  the 
plantation  begins,  their  object  being  to  di- 
vert the  current  of  the  stream  during  high 
waters  from  impinging  upon  the  levee,  and, 

241  V.  8. 


L 


1»U.                                      UNITED  STATES  v.  ARCHER.  13S-139 

by  tbrowltig  it  northMatwftrd  by  the  dike  taken,  ft«  value  at  th«  time  of  meh  deetnie- 

to  prevent  the  destructioii  of  the  levee,  anc  tion  and  taking  being  983,920." 

the  cutting  across  the  neck  of  land.     Tb<  Upon  these  findings,  a  judgment  was  ren- 

dike   first   went   into   and   on   the   land   ol  dered  in  favor  of  the  claimants  for  (64,920, 

[137]  claimants  a  distance  of  682  feet,  but  the  difference  between  this  and  the  total 

the  end  of  it  being  exposed  to  the  waters  ol  value  of  the  land  apparently  being  repre- 

the  river  and  t«  its  powerful  current,  thi  aoited  bj  an  outstanding  mortgage. 

olHcers   deemed   it  necessary  to  cxtmid  th(  The  record  thowa  that  the  case  was  tried 

dike  a  distance  of  some  2,700  feet  farthei  and  considered  with  unusual  care  and  de- 

upon  the  land  of  claimants,  and  did  so  «t-  liberation  in  the  court  of  claims.    The  pe- 

tend  it  in  1S07,  without  any  oondemnatioi  titian   was  filed  July  18,  1008;   final  judg- 

of  the  land  and  with  do  remuneration  there-  mcnt  was  entered  February  IT,  1914,  nuno 

for  being  made  to  claimant*.     A  large  part  pro    tunc   as   of   February   12,   1912.      The 

of  the  soil  was  used  lor  the  construction  ol  merits  of  the  case  were  argued  at  leaat 

the  extension.  three  times,  and  the  United   States  filed 

Before  tbe  United  States  joined  the  levee  several  motions  for  new  trial,   for  amend- 

linee  in  accordance  with  the  Eads  plan,  thU4  ment  of  the  findings,  etc.     It  waa  therefore 

making  the  same  continuous,  there  were  oc-  only   after  years   ol  contentious   litigation 

caaional    overflows   of   the    plantation,    but  that  the  eouit  of  claims  arrived  at  the  flnd- 

they  have  been  made  deeper  and  more  force-  ings   and  conclusions  upon   which   it  based 

ful  by  the  adoption  of  said  system.    But  be-  its  judgment. 

fore  the  erection  of  tbe  dike  tbe  overflows  in   this    court   the   case   has   been    fully 

did  not  materially  damage  the  plantation  .rgued  upon  tbe  facU  disclosed  by  tbe  find- 

and  it  remained  still  valuable  for  agricul-  i^p,.  the  argument  for  the  government  be- 

tural   Pii-Posea.      By   the  <at«n"™   «f   the  ^       inducted  by  the  learned  Solicitor  Gen- 


dike  the  high-water  current  of  the  river  has 


ral   in   person.      It   was  not  suggested   in 


been  deflected  over  and  across  a  laree  part  ^.i.   ,  \t.     n    i,                   .            ■  . 

,  .,       ,     .  .-       o     -      .1.           "  ..  argument  that  the  findings  were  incomplete 

01  the  plantation,  flowing  in  tbe  same  direc-  i.-       '          •  ,  ^ 

Hon  a>  did  >  port™  ol  th.  Ugh  w.Ur.  of  "'"""«  "  "''H'^'   .       ,      , 

the  rlv.,b,tor'lh..r«li.iioIth,  dike,  but  ,  H"'  ^e  ~e»tl.l  l«it.  eleu-lj  .ppeu 

with  g,e.tet  (oree  .nd  depth,  tbe  ,.e.p.  .1  !"»  ""  '''''"  '•'"'"'>  <™»  ''e  M  ow 

.   portion   ol    the   Ugh    w.t.™   o».t    „d  "'•""'}  ■'™."»  8"""™.f  brl.l, 

urou  tbe  neck  ol  l.nd  being  prnreoted  h,  .^  '^r""  ""  ""''"«■  °'  "'  ™"  "'  ':'""• 

the  dike,  in  eon.«,uene.  ol  whl.h  the  ove/-  *'  '°"""8  '""  fPP'";     ■"■•  pl'n"; 

«o..  ol  the  pluUtlon  hnye  t«en  gre.U,  hon1eKnb.duT.mt  Ohleol  pljnl.t,on  • 

ln.re.«d    »,d    l»ten.H«l,    tb.    ..^It    ol  »  •■t«»ted  m  Ch™t  eonnt,,  in  the  [13»] 
which  has  beeu  to  wash  and  scour  out  its 

Ijp  .oU  .nd  to  depoelt  upon  .  jn.ge  P»t  ^^  ^  ^^  j^.^, 
of  the  plantation  great  burdens  of  sand  and  ;  ,  .■  .  .t  ii  ,  _, 
1  J  t,  DUO  1.  L  •,!.  L  plantation  to  the  south  was  a  levee,  a  part 
gravel,  and  3,896  acres  have  been  thereby  '^.  ..  ,  .  .  ^  j  i.  V.i. 
*,...,,  ...  ,..  ,.  'of  the  general  system  constructed  by  the 
rendered  U|taly  unfit  for  cultivation  or  any  United  SUtee  and  local  authoritie.  aftar 
other  profitable  use.  This  result  bad  been  jggg^  pu„uant  to  the  Eads  plan  for  the  in.- 
caused  partly  by  the  joining  of  the  levee  provement  of  navigation.  Between  the  levee 
systems  and  the  erection  of  the  dike,  but  ,„d  p„i„t  chicot  plantation  was  a  low  strip 
directly  and  proximataly  by  the  erection  of  ,(  ground  often  covered  by  the  river.  The 
said  dike.  natural  current  of  the  river  in  high  water 
"The  3,696  acres  of  land  hereinbefore  ,e»Hons,  running  over  the  low  strip  of 
mentioned  at  the  time  of  the  erection  of  the  j^ound  behind  the  Point  Chicot  plantation. 
Leland  dike  was  of  the  value  of  W3,B20.  threatened  the  destruction  of  the  levee,  and 
Thirty-one  and  four-t«nths  acres  of  the  ^  severance  of  the  Point  from  the  mainland, 
same  Is  actually  and  wholly  occupied  by  leaving  Point  Chicot  an  island.  To  fore- 
the  United  States  by  the  construction  of  the  itall  tbe  danger  to  the  levee  from  erosion, 
dike  before  mentioned,  [138]  and  the  hal-  knd  to  the  connecting  neck  of  land,  and 
ance  of  said  3,696  acres,  to  wit,  3,664.6,  has  thus  to  prevent  the  river  from  leaving  Ita 
been  destroyed  and  rendered  totally  unflt  for  channel,  agents  of  the  United  States  gov- 
enltivation  or  any  other  profitable  use  by  imment  constructed  the  Leland  dike  in 
the  owners  thereof.  .  .  ,  The  court  finds  L804,  running  882  feet  into  the  Point  Chi- 
M  an  ultimate  fact,  in  so  far  as  it  is  a  ;ot  plantation.  In  1907  the  dike  was  ex- 
question  of  fact,  that  tbe  said  3,696  acres  »nded  2,700  feet  further  on  claimanto' 
of  land  was  somewhat  impaired  in  value  by  and.  In  all,  31.4  acres  were  occupied  in  the 
the  construction  of  said  levee  system,  but  instruction  of  the  Leland  dike.  ...  In 
that  ita  nee  was  totally  destroyed  by  the  leriods  of  high  water  the  floods  deflected  by 
erection  of  the  Leland  dike  and  was  thereby  the  dike  came  over  the  plantation,  render- 
to  Lu  cd.  lift 


139-142 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


ing  3,696  acres  of  the  plantation  unfit  for 
cultivation." 

Even  were  it  suggested,  as  it  is  not,  that 
the  court  of  claims  had  committed  some 
trial  error  or  had  drawn  improper  infer- 
ences from  the  evidence  there  submitted, 
this  court  would  have  no  authority  to  re- 
view the  judgment*  and  reverse  it  upon  that 
ground.  The  rules  established  by  this 
court,  pursuant  to  §  708,  Rev.  Stat,  (now 
§  243,  Judicial  Ck>de  [36  Stat,  at  L.  1157, 
chap.  231,  Comp.  Stat.  1913,  §  1220]),  for 
regulating  appeals  from  the  court  of  claims, 
require  that  the  record  shall  contain  "a 
finding  by  the  court  of  claims  of  the  facts 
in  the  case,  established  by  the  evidence,  in 
the  nature  of  a  special  verdict,  but  not  the 
evidence  establishing  them;  and  a  separate 
statement  of  the  conclusions  of  law  upon 
said  facts  on  which  the  court  founds  its 
judgment  or  [140]  decree."  The  findings 
are  conclusive  upon  this  court  unless  error 
of  law  appear  in  the  record.  United  States 
V.  Smith,  94  U.  S.  214,  24  L.  ed.  116;  Stone 
V.  United  States,  164  U.  S.  380,  41  L.  ed. 
477,  17  Sup.  Ct.  Rep.  71;  District  of  Colum- 
bia V.  Barnes,  197  U.  S.  146,  160,  49  L.  ed. 
699,  700,  25  Sup.  Ct.  Rep.  401. 

The  entire  argument  for  the  government 
may  be  reduced  to  the  single  contention 
that  its  liability  for  damages  is  limited  to 
the  31.4  acres  of  claimants'  lands  that  are 
actually  occupied  by  the  Leland  dike,  and 
that  the  court  of  claims  erred  in  awarding 
compensation  also  for  the  3,664.6  acres  de- 
stroyed by  the  deflection  upon  it  of  the 
flood  waters  of  the  river  through  the  con- 
struction and  maintenance  of  the  dike.  The 
simple  question  is  whether  the  case  should 
be  governed  by  United  States  v.  Qrizzard, 
219  U.  S.  180,  65  L.  ed.  165,  31  L.R.A.(N.S.) 
1135,  31  Sup.  Ct.  Rep.  162,  upon  which  the 
court  of  claims  rested  its  decision,  or  by 
Bedford  v.  United  States,  192  U.  S.  217, 
48  L.  ed.  414,  24  Sup.  Ct.  Rep.  238;  and 
Jackson  v.  United  States,  230  U.  S.  1,  67 
L.  ed.  1363,  33  Sup.  Ct.  Rep.  1011. 

It  was  attempted  to  be  shown  in  argu- 
ment that  the  causes  of  the  damage  to 
claimants'  lands  were  diverse,  it  being  at- 
tributable in  part  to  the  levee  work  of  the 
local  and  state  authorities,  and  only  in  part 
to  the  construction  of  the  Leland  dike  by 
the  agents  of  the  United  States  government. 
It  seems  to  me  that  the  findings  render  this 
matter  perfectly  clear,  for  they  show  that 
while  the  general  work  of  levee  construc- 
tion in  which  local,  state,  and  Federal 
agencies  co-operated  resulted  in  an  increased 
elevation  of  the  fiood  levels  and  subjected 
claimants'  land  to  deeper  overfiows  than 
before,  and  consequently  somewhat  reduced 
its  value  for  agricultural  purposes,  no  com- 
pensation was  awarded — indeed,  none  was 
•  26 


or  la  asked — for  this  general  and  consequen- 
tial result  of  levee  construction.  Nor  was 
the  judgment  in  favor  of  claimants  based 
at  all  upon  the  value  that  claimants'  lands 
would  have  had  but  for  this  levee  construc- 
tion. On  the  ooqtrary,  the  finding  is  ex- 
plicit that  while  the  tract  of  3,696  acres 
of  land  was  somewhat  impaired  in  value 
by  the  construction  of  the  levee  system,  its 
use  was  totally  [141]  destroyed  by  the  sub- 
sequent erection  of  the  Leland  dike,  and 
that  its  value  at  the  time  of  euch  deetruc- 
tion  was  $83,920. 

In  view  of  this,  I  confess  myself  unable 
to  comprehend  the  basis  of  the  criticism 
that  the  findings  lack  precision  and  that 
the  effects '  of  the  work  done,  respectively, 
by  the  states  and  by  the  United  States, 
ought  to  be  more  clearly  distinguished.  It 
is  not  suggested  in  what  respect  the  find- 
ings lack  precision,  and  the  government  ad- 
vances no  such  contention.  The  findings 
certainly  render  it  most  clear  that  no  com- 
pensation is  claimed  or  allowed  for  any- 
thing done  by  the  state  or  local  authori- 
ties; that  neither  of  these  has  invaded  the 
soil  of  claimants'  lands;  that  this  invasion 
was  done  solely  by  agents  of  the  United 
States  government,  acting  under  the  au- 
thority of  acts  of  Congress,  in  the  execu- 
tion of  an  important  public  work;  and  that 
by  their  acts  31.4  acres  were  actually  occu- 
pied for  the  construction  of  the  dike,  and 
the  balance  of  the  3,696  acres  were  de- 
stroyed as  the  direct  consequence  of  the 
effect  of  the  dike  in  turning  the  flood 
waters  of  the  river  upon  and  across  claim- 
ants' lands  in  other  than  their  natural 
course;  and  this  because  the  dike  performed 
the  very  fimction  that  it  was  designed  to 
perform. 

Unfavorable  reference  is  made  to  the 
finding  that,  in  addition  to  the  danger 
which  threatened  the  levee,  the  current,*  im> 
pinging  upon  the  banks  of  the  stream  at 
the  neck  of  land,  cut  into  it,  threatening  to 
cut  through  it  and  thus  straighten  the 
channel  and  make  of  Point  Chicot  planta- 
tion an  island.  I  am  unable  to  see  in  this 
anything  else  than  a  very  clear  and  direct 
inference  based  upon  the  physical  facts  and 
the  effect  of  previous  floods  upon  the  neck 
of  land  as  recited  in  the  findings,  viewed  in 
the  light  of  a  history  of  cut-offs  so  frequent 
and  familiar  along  the  lower  Mississippi  as 
to  have  become  a  matter  of  common  knowl- 
edge. But,  if  the  finding  is  wanting  in  any 
respect,  this  has  nothing  to  do  with  claim- 
ants' right  to  compensation  for  the  taking 
of  their  lands.  The  [142]  danger  to  the 
neck  of  land  connecting  Point  Chicot  with 
the  mainland  does  not  affect  the  question  of 
the  quantity  or  value  of  the  land  taken  from 
claimants.    It  bears  eolely  upon  the  neoei^ 

241  V.  S. 


1015. 


UNITED  STATES  v.  ARCHKR. 


142-144 


city  for  the  taking.  Now,  the  objection  of 
want  of  necessity  may  be  appropriately 
raised  by  an  objecting  landowner.  But  sure- 
ly it  does  not  lie  in  the  mouth  of  the  gov- 
ernment, after  an  actual  taking  of  private 
property,  to  answer  a  claim  for  compensa- 
tion by  setting  up  that  there  was  no  neces- 
sity for  taking  it. 

It  is  said  that  it  may  be  questioned 
whether  the  river,  breaking  through  at  the 
neck,  would  have  confined  itself  to  a  narrow 
channel,  making  Point  Chicot  plantation 
an  island,  and  would  not  have  permanently 
submerged  it  or  swept  it  away.  Plainly, 
this  is  wholly  speculative;  and  it  seems  to 
me,  in  view  of  the  findings  and  the  illustra- 
tive map,  that  the  result  hinted  at  is  not 
even  a  remote  possibility.  The  findings  are 
clear  to  the  efl'ect  that,  before  the  construc- 
tion of  the  dike,  flood  waters  went  across 
the  neck  of  land,  to  the  relief  of  the  Point 
Chicot  plantation,  upon  which  the  ground 
is  much  higher.  The  entire  width  of  the 
river  opposite  the  neck  of  land  and  on  its 
upper  side  is  about  one-half  mile,  perhaps 
less.  As  already  mentioned,  the  neck  is 
less  than  a  mile  across,  and  it  extends  for 
over  a  mile  from  the  levee  to  the  nearest 
line  of  the  Point  Chicot  plantation. 

My  brethren  deduce  an  inference  of  pos- 
sible extensive  erosion  from  the  reports  of 
the  United  States  engineers.  The  reports 
at  the  utmost  would  be  no  more  than  evi- 
dential as  to  this  point.  Nor  am  I  aware 
that  this  court,  in  reviewing  a  judgment  of 
the  court  of  claims,  is  at  liberty  to  seek 
contradiction  of  the  express  findings  of  fact 
made  by  that  court  by  reference  to  some 
government  publication  of  which  we  may 
take  judicial  notice. 

But  if,  before  construction  of  the  Leland 
dike,  there  was  any  probability,  near  or  re- 
mote, that  the  opening  of  a  cut-off  at  the 
neck  of  land  would  lead  to  any  encroach- 
ment [143]  of  the  river  upon  claimants' 
land,  the  only  possible  legitimate  effect  of 
this  upon  their  claim  for  compensation  for 
the  lands  actually  taken  and  directly  dam- 
aged by  the  construction  of  the  dike  would 
be  to  reduce  the  damages  to  such  extent  as 
it  should  be  made  to  appear  that  by  such 
construction  claimants  had  been  specially 
benefited  through  the  saving  of  their  other 
lands  from  destruction.  But  the  burden  of 
showing  this  was  upon  defendant,  not  upon 
claimants.  And  I  can  see  no  justification 
for  reversing  a  judgment,  fairly  recovered 
by  claimants,  upon  the  mere  conjecture 
that  possibly  there  ought  to  have  been  an 
allowance  in  favor  of  the  United  States  for 
the  direct  benefit  that  the  dike  construction 
conferred  upon  claimants. 

Reference  is  made  to  the  fact  that  be- 
fore this  suit  was  brought  George  F.  Arch- 
•0  li.  ed. 


er,  one  of  the  claimants,  brought  a  suit  in 
the  United  States  circuit  court  for  the  east- 
ern district  of  Arkansas  against  the  board 
of  levee  inspectors  of  Chicot  county,  Arkan- 
sas, for  the  damages  arising  from  the  erec- 
tion of  the  dike  and  the  taking  of  the  31.4 
acres  of  land,  and  that,  after  the  overrul- 
ing of  a  demurrer  to  the  complaint,  the  ac- 
tion was  discontinued  before  the  commence- 
ment of  this  suit  (128  Fed.  125).  As  a 
finding  of  fact,  this  manifestly  imports 
nothing  whatever  pertinent  to  the  right  of 
action  of  claimants  against  the  government 
of  the  United  States.  As  an  evidential  cir- 
cumstance, even  were  it  entitled  to  any 
weight,  this  court  has  nothing  to  do  with 
it,  for  we  have  no  jurisdiction  to  consider 
or  weigh  evidence.  Even  as  against  the  de- 
fendant in  that  action,  the  discontinued 
suit  would  not  estop  the  plaintiff  therein; 
and  certainly  this  court  does  not  intend  to 
intimate  that  it  furnishes  any  bar  to  the 
recovery  by  the  claimants  of  compensation 
for  the  land  actually  taken  by  the  govern- 
ment of  the  United  States. 

The  question  whether  claimants  objected 
to  the  entry  by  the  officers  of  the  United 
States  is  likewise  immaterial,  [144]  for 
their  suit  is  based,  not  upon  the  ground  that 
the  officers  were  trespassers,  but  upon  the 
ground  that  they  were  lawfully  engaged  in 
the  construction  of  a  public  work  under 
governmental  authority,  and  in  the  doing  of 
it  found  it  necessary  to  take  and  did  take  a 
considerable  part  of  claimants'  land,  with 
incidental  direct  damage  to  another  and 
greater  part.  This,  upon  well-settled  prin- 
ciples, is  to  be  deemed  a  taking  of  private 
property  for  the  public  use,  and  by  the 
plain  mandate  of  the  5th  Amendment  to 
the  Constitution  is  to  be  made  the  subject 
of  compensation.  The  protest  of  the  prop- 
erty owner  is  not  necessary  to  entitle  him 
to  compensation.  Acquiescence  in  an  un- 
authorized taking  may  estop  a  landowner 
from  having  equitable  relief  by  way  of  in- 
junction against  the  consequences  of  the 
taking,  or  from  treating  the  taking  as  a 
trespass;  but  it  does  not  disentitle  him  to 
compensation  for  the  land  actually  taken. 
New  York  ▼.  Pine,  185  U.  S.  93,  96,  103, 
46  L.  ed.  820,  821,  825,  22  Sup.  Ct.  Rep. 
592.  Nor  is  the  absence  of  formal  condem- 
nation proceedings  of  any  consequence.  An 
agreement  on  the  part  of  the  government 
to  pay  him  the  fair  value  of  his  property 
is  necessarily  implied,  on  principles  of  jut* 
tice  and  equity,  from  the  mere  act  of  tak- 
ing, and  it  is  upon  the  implied  assumpsit 
that  the  action  rests.  United  States  v. 
Lynah,  188  U.  S.  445,  462,  465,  468-470,  47 
L.  ed.  539,  545-549,  23  Sup.  Ct.  Rep.  349. 

Stress  is  laid  upon  the  suggestion  that  if 
the  government  or  some  third  party  had 

•27 


144-147 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


owned  the  site  of  the  Leland  dike  at  the 
time  of  its  erection,  so  that  in  its  construc- 
tion there  had  been  no  invasion  of  the  lands 
of  the  claimants,  the  government  would  not 
have  been  liable  for  the  destruction  thereby 
inflicted.  It  is  quite  true  that  the  consti- 
tutional inhibition  against  the  taking  of 
private  property  for  public  use  without 
compensation  has  been  generally  construed 
as  not  conferring  a  right  to  compensation 
upon  a  landowner,  no  part  of  whose  prop- 
erty has  been  actually  invaded,  and  who 
has  sustained  only  consequential  damages 
by  reason  of  the  erection  of  a  public  work 
upon  [145]  adjoining  land  owned  by  a 
third  party.  It  is  this  doctrine  that  under- 
lies the  decisions  of  this  court  in  Bedford  v. 
United  States,  192  U.  S.  217,  48  L.  ed.  414, 
24  Sup.  Ct.  Rep.  238;  and  Jackson  v. 
United  States,  230  U.  S.  1,  67  L.  ed.  1363, 
33  Sup.  Ct.  Rep.  1011.  The  great  hardship 
of  the  doctrine  has  been  so  generally  recog- 
nized that  many  of  the  states  have  estab- 
lished constitutions  providing  in  substance 
that  private  property  shall  not  be  taken  or 
damaged  for  public  use  without  compensa- 
tion. Richards  v.  Washington  Terminal 
Co.  233  U.  S.  546,  554,  58  L.  ed.  1088,  1091, 
L.R.A.1915A,  887,  34  Sup.  Ct.  Rep.  654.  A 
rule  so  harsh  in  its  operation  ought  not  to 
be  extended;  and  this  case  very  clearly 
stands  on  the  other  side  of  the  line,  and 
comes  within  a  class  of  cases  quite  as  well 
established,  of  which  United  States  v.  Griz- 
zard,  219  U.  S.  180,  55  L.  ed.  165,  31  L.R.A. 
(N.S.)  1135,  31  Sup.  Ct.  Rep.  162,  is  an 
example. 

I  cannot  yield  assent  to  the  suggestion 
that  the  taking  of  the  31.4  acres,  actually 
invaded  and  occupied  by  the  construction 
of  the  dike,  can  be  treated  as  a  matter 
apart  from  the  destruction  of  the  3,664.6 
acres  of  claimants'  lands  immediately  ad- 
joining, which,  as  a  direct  result  of  the 
construction  of  the  dike  and  because  of  the 
function  that  it  performs,  have  been  "ren- 
dered totally  unfit  for  cultivation  or  any 
other  profitable  use  by  the  owners  thereof." 
Assuming,  for  the  purposes  of  the  argu- 
ment, that  if  the  government  itself,  or  some 
stranger,  had  owned  the  site  of  the  dike,  so 
that  in  the  erection  of  it  no  actual  invasion 
had  been  made  upon  claimants*  lands,  the 
government  would  not  have  been  liable  on 
an  implied  assumpsit  for  the  destruction 
thereby  inflicted,  it  is  suflicient  to  say  that 
that  is  not  this  case.  The  whole  of  the 
lands  in  question  were  owned  by  claimants, 
and  were  in  use  as  integral  parts  of  a 
single  plantation.  There  was  an  actual  in- 
vasion and  exclusive  occupancy  of  claim- 
ants' lands  in  the  construction  of  the  dike, 
and  the  destruction  of  the  adjoining  lands 
was  a  direct  and  necessary  consequence  of 
•  28 


the  use  made  of  the  dike,  and,  in  justice^ 
must  be  regarded  as  an  inseparable  part  of 
the  taking.  It  is  the  established  rule,  rec- 
ognized everywhere,  that  where  [146]  only 
part  of  a  tract  of  land  is  taken,  the  owner 
is  entitled  not  merely  to  the  nuirket  value 
of  the  part  taken,  but  to  all  damages  to  the 
remainder  of  his  tract  proximately  result- 
ing from  the  use  made  of  the  part  actually 
taken;  or,  putting  it  in  another  way,  he  is 
entitled  to  the  difference  between  the  mar- 
ket value  of  the  entire  tract  and  the  market 
value  of  that  which  is  left;  excluding  from 
consideration,  however,  any  general  benefit 
that  is  shared  by  all  landowners  whose 
property  is  similarly  circumstanced.  A 
multitude  of  cases  might  be  cited  in  sup- 
port of  this  proposition,  but  is  is  not  neces- 
sary, for  they  can  be  found  in  the  text 
books  and  cyclopedias.  The  doctrine  has 
been  uniformly  adhered  to  by  this  court. 
In  Bauman  v.  Ross,  167  U.  S.  548,  574,  42 
L.  ed.  270,  283,  17  Sup.  Ct.  Rep.  966,  it 
was  expressed  thus:  "When  part  only  of 
a  parcel  of  land  is  taken  for  a  highway,  the 
value  of  that  part  is  not  the  sole  measure 
of  the  compensation  or  damages  to  be  paid 
to  the  owner;  but  the  incidental  injury  or 
benefit  to  the  part  not  taken  is  also  to  be 
considered.  When  the  part  not  taken  is 
left  in  such  shape  or  condition  as  to  be  in 
itself  of  less  value  than  before,  the  owner 
is  entitled  to  additional  damages  on  that 
account.  When,  on  the  other  hand,  the 
part  which  he  retains  is  specially  and  di- 
rectly increased  in  value  by  the  public  im- 
provement, the  damages  to  the  whole  par- 
cel by  the  appropriation  of  part  of  it  are 
lessened."  In  Sharp  v.  United  States,  191 
U.  S.  341,  353,  354,  48  L.  ed.  211,  215,  216, 
24  Sup.  Ct.  Rep.  114,  an  attempt  was  made 
to  apply  the  same  rule  to  separate  and  in- 
dependent farms  owned  by  the  same  owner, 
and  having  no  necessary  relation  to  each 
other,  the  farming  on  each  having  been  con- 
ducted separately,  and  each  farm  having 
its  own  house  and  outbuildings.  The  court 
said:  "Upon  the  facts  which  we  have  de- 
tailed, we  think  the  plaintiff  in  error  was 
not  entitled  to  recover  damages  to  the  land 
not  taken  because  of  the  probable  use  to 
which  the  government  would  put  the  land 
it  proposed  to  take.  If  the  remaining  land 
had  [147]  been  part  of  the  same  tract 
which  the  government  seeks  to  condemn, 
then  the  daniage  to  the  remaining  portion  of 
the  tract  taken,  arising  from  the  probable 
use  thereof  by  the  government,  would  be  a 
proper  subject  of  award  in  these  condemna- 
tion proceedings.  But  the  government  takes 
the  whole  of  one  tract."  In  United  States 
V.  Grizzard,  219  U.  S.  180,  182,  183,  65  L. 
ed.  165,  166,  31  L.R.A.(N.S.)  1135,  31  Sup. 
Ct.  Rep.  162,  which  was  an  action  by  the 

241  V.  8. 


1915. 


WHITE  ▼.  UNITED  STATES. 


147-149 


owners  of  a  farm  for  a  taking  of  a  part 
of  it  by  the  United  States  for  public  pur- 
poses, the  court  said:  "Reference  has  been 
made  to  the  well-known  class  of  cases 
touching  an  injury  to  land  not  taken  by 
the  construction  of  a  railroad  along  and 
upon  an  abutting  public  road,  or  a  change 
of  grade  to  the  damage  of  adjacent  prop- 
erty, and  like  indirect  injuries  to  the  use 
of  property  adjacent  but  of » which  no  part 
was  taken  from  the  owner.  Northern  Transp. 
Co.  ▼.  Chicago,  99  U.  S.  635,  25  L.  ed.  336; 
Sharp  V.  United  States,  191  U.  S.  341, 
48  L.  ed.  211,  24  Sup.  Ct.  Rep.  114.  But 
here  there  has  been  an  actual  taking  by 
permanently  flooding  a  part  of  the  farm 
of  the  defendants  in  error.  An  incident 
of  til  at  flooding  is  that  a  public  road  nm- 
ning  across  the  flooded  land  is  also  flooded. 
But  if  this  were  not  so,  and  the  roadway 
had  simply  been  cut  off  by  the  interposition 
of  the  flooded  portion  of  the  farm,  the  dam- 
age would  be  the  same.  Since,  therefore, 
there  has  been  a  taking  of  a  part  of  the 
owners'  single  tract  and  damage  has  result- 
ed to  the  owners'  remaining  interest  by  rea- 
son of  the  relation  between  the  taken  part 
and  that  untaken,  or  by  reason  of  the  use 
of  the  taken  land,  the  rule  applied  in  the 
cases  cited  does  not  control  tliis  case.  .  .  . 
Whenever  there  has  been  an  actual  physical 
taking  ot  a  part  of  a  distinct  tract  of  land, 
the  compensation  to  be  awarded  includes 
not  only  the  market  value  of  that  part  of 
the  tract  appropriated,  but  the  damage  to 
the  remainder  resulting  from  that  taking, 
embracing,  of  course,  injury  due  to  the  use 
to  which  the  part  appropriated  is  to  be  de- 
voted." 

Bedford  t.  United  States,  192  U.  S.  217» 
225,  48  L.  ed.  414,  417,  24  Sup.  Ct.  Rep. 
238,  is  clearly  [148]  distinguishable,  it  be- 
ing an  instance  of  consequential  damages  to 
the  claimants'  land  by  reason  of  govern- 
ment operations  conducted  6  miles  farther 
up  the  river.  There  was  no  actual  invasion 
of  any  part  of  their  land,  and  therefore  no 
responsibility  for  the  consequential  damages 
arising  from  the  government  operations. 
Jackson  v.  United  States,  230  U.  S.  1,  23,  57 
L.  ed.  1363,  1374,  33  Sup.  Ct.  Rep.  1011, 
was  likewise  a  case  of  consequential  dam- 
ages without  actual  taking  of  any  part  of 
the  claimant's  lands.  It  was  decided  both 
in  the  court  of  claims  (47  Ct.  CI.  579,  613) 
and  by  this  court  upon  the  authority  of  the 
Bedford  Case. 

It  seems  to  me  that  the  findings  of  the 
eourt  of  claims  are  sufficiently  clear  and 
definite  to  furnish  the  materials  for  a  prop- 
er judgment  upon  the  claim  in  controversy; 
that  an  actual  invasion  and  occupation  of 
A  part  of  claimants'  lands,  particularly  de- 
scribed, by  the  agents  of  the  United  States, 
€0  li.  ed. 


in  the  construction  of  the  dike  under  the 
authority  of  acts  of  Congress,  is  shown,  as 
well  as  the  market  value  of  the  particu- 
lar part  actually  invaded  and  of  the  larger 
and  adjacent  portion  of  the  same  tract 
necessarily  destroyed  as  a  direct  and  im- 
mediate result  of  the  construction  and 
maintenance  of  the  dike.  I  also  think  that 
the  case  comes  clearly  within  the  authority 
of  United  States  Y.  Grizzard,  supra,  and 
that  the  judgment  under  review  should  be 
affirmed. 

More  than  eight  years  have  elapsed  since 
the  practical  destruction  of  the  greater  part 
of  claimants'  plantation;  nearly  seven 
years  since  the  suit  was  commenced.  And 
as  no  interest  is  allowable  against  the  gov- 
ernment in  a  case  of  this  kind  up  to  the 
time  of  the  rendition  of  judgment  in  the 
court  of  claims  (§  1091,  Rev.  SUt.  §  177, 
Judicial  Code  [36  Stat,  at  L.  1141,  chap. 
231,  Comp.  Stat.  1913,  §  1168];  Tillson  v. 
United  SUtes,  100  U.  S.  43,  47,  25  L.  ed. 
543,  544;  Harvey  v.  United  States,  113  U. 
S.  243,  28  L.  ed.  987,  5  Sup.  Ct.  Rep.  465 ) , 
any  unnecessary  postponement  of  the  judg- 
ment is  a  virtual  denial  of  justice* 

For  these  reasons,  I  dissent. 


[149]  WILLIAM  FRYB  WHITE,  Receiver 
of  Cowardin,  Bradley,  Clay,  &  Co.^ 

Appt., 

V. 

UNITED  STATEa 

(See  S.  0.  Reporter's  ed.  149-154.) 

Public  contracts  —  ambignity  —  prac- 
tical construction. 

Any  uncertainty  as  to  whether  a 
roadway  shown  on  the  plans  was  called  for 
by  a  contract  for  the  construction  of  a 
filtration  plant  for  the  United  States,  so  as 
to  entitle  the  contractor  to  payment  for 
the  work  done  by  him  on  such  roadway, 
should  be  resolved  in  the  contractor's  favor, 
where  supplemental .  plans  relating  to  such 
roadway  and  givinf^  details  as  to  grades 
were  furnished  to  htm,  and  the  government 
engineer  first  in  charge,  who  himself  drew 
the  plans,  considering  that  the  construc- 
tion of  the  roadway  was  part  of  the  scheme, 
supervised  and  inspected  the  work  of  con- 
structing it  on  lines,  slopes,  and  grades  and 
of  selected  materials,  and  directed  pay- 
ment therefor  as  being  included  in  the 
contract. 

[For  other  esses,   see  United  States,  YI.  b. 
in  Digest  Sup.  Ct.  1908.] 

[No.  809.] 

Argued  April  19,  1916.     Decided  May  1, 

1916. 
69  090 


14»-161 


SUPREME  OOURT  OF  THE  UNITED  STATES. 


Oct.  Tkeii, 


APPEAL  from  the  Court  of  Claims  to  re- 
view ft  judgment  dismissing  a  petition 
for  the  recovery  from  the  United  States  of 
a  sum  alleged  to  be  due  to  a  public  con- 
tractor. Reversed  and  remanded  with  di- 
rections to  enter  judgment  for  appellant  on 
the  findings. 

See  same  case  below,  48  Ct.  CI.  169. 

Statement  by  Mr.  Justice  McKenna: 

Appellant  is  the  receiver  of  the  firm  of 
Cowardin,  Bradley,  Clay,  &  Company,  and 
the  successor  of  one  J(4m  D.  McClennan. 
The  latter  filed  in  the  court  of  claims  a 
petition,  subsequently  amended  by  appel- 
lant, praying  a  judgment  against  the  United 
States  for  the  sum  of  $43,510,  the  amount 
due  that  company  on  a  contract  for  labor 
and  materials  furnished  for  the  construc- 
tion of  a  filtration  plant  in  the  District  of 
Columbia. 

The  court  found,  among  other  things, 
that  there  is  a  driveway  running  completely 
about  the  reservoir,  which  is  an  irregularly 
shaped  body  of  water,  comprising  the  west- 
em  and  southern  part  of  the  filtration 
plant.  The  starting  point  of  "the  roadway" 
(so-called  by  the  court),  its  course  and  ter- 
mination, are  stated. 

The  set  of  plans  attached  to  the  written 
contract,  and  by  its  terms  made  a  part  of 
the  agreement,  included  certain  plans  show- 
ing the  roadway  bordering  the  reservoir 
west  of  the  filter  beds.  One  of  the  plans 
(sheet  2)  was  a  drawing  [150]  showing  the 
work  in  general  sections;  another  plan 
(sheet  4)  was  a  general  plan  and  showed 
finished  surfaces;  and  the  general  plan  No. 
1  showed  the  entire  projected  plant.  All 
of  these  plans  indicated  a  roadway,  and 
sheet  No.  16  also  indicated  a  roadway. 

Afterwards  two  supplemental  plans,  relat- 
ing to  the  roadway  and  giving  details  as 
to  grades,  were  furnished  the  contractor. 

Appellant's  predecessor,  McClennan,  began 
work  on  the  roadway  in  January  or  Feb- 
ruary, 1904.  It  does  not  appear  that  the 
contractor  was  ordered  in  terms  by  the 
government  engineers  to  build  the  road- 
way, but  it  is  shown  that  when  he  com- 
menced work  on  it  the  engineers  gave  him 
the  line  of  the  toe  of  the  slope,  and  from 
time  to  time  furnished  him  with  the  lines 
showing  the  direction  of  the  road  and  the 
stakes  showing  the  grade,  and  that  the 
work  was  done  under  their  inspection  as 
to  the  lines,  slopes,  and  the  character  of 
the  material  allowed  to  be  deposited  there- 
on. 

The  contractor  began  to  build  the  road- 
way by  filling  with  earth  excavated  from 
other  parts  of  the  work,  and  he  continued 
to  fill  in  and  build  the  roadway  in  accord- 
ance with  the  plans  and  under  the  inspeo- 

•sa 


tion  of  the  engineers  until  February  14,  lOOo^ 
and  had  been  paid  at  various  times  about 
$12,000  on  account  of  the  work  done  on  esti- 
mates  made  by  the  government.  The  first 
payment  was  on  voucher,  month  of  March.. 
1904,  covering  all  work  done  on  the  road 
up  to  the  end  of  February,  1904,  for  *'em- 
bankment  (A,  item  No.  2),  13,000  cubic- 
yards,  at  30  cents,  less  10  per  cent  retained^ 
amounting  to  ,$3,510."  Except  for  said 
voucher  no  separate  estimates  were  made 
of  the  amount  of  fill  placed  in  the  roadway,,, 
the  work  done  thereon  being  included  in 
the  regular  monthly  estimates  with  the 
work  done  on  other  portions  of  the  filtra- 
tion plant. 

Shortly  after  McClennan  was  appointed 
receiver  in  [151]  August,  1903,  he  made 
arrangements  with  the  Soldiers'  Home  au- 
thorities, at  a  considerable  cost,  to  dispose 
of  waste  material  on  the  Soldiers'  Home 
grounds  under  certain  conditions,  the  terms- 
of  which,  so  far  as  the  amount  of  material 
to  be  placed  thereon  is  concerned,  were  nev- 
er  carried  out.  The  roadway  was  just  aa^ 
convenient  a  place  as  any  to  dispose  of 
waste  material,  and  the  cost  of  putting  it 
there  was  no  more  than  it  would  have  been, 
to  have  placed  it  on  the  Soldiers'  Home 
grounds. 

McClennan,  he  then  being  receiver,  was- 
iuformed  by  the  engineer  officer  in  charge 
on  behalf  of  the  United  States  that  he 
would  not  allow  any  further  payments  for 
work  done  on  the  roadway.  For  a  short 
time  afterward,  and  pending  negotiations 
regarding  the  matter  with  the  engineer  of- 
ficer, appellant  continued  dumping  material 
that  he  wanted  to  dispose  of  on  the  road- 
way. He  finally  discontinued  work  there- 
on, at  which  time  about  6,000  cubic  yards^ 
of  fill  was  necessary  to  complete  the  road- 
way. It  was  subsequently  finished  by  the 
United  States  without  further  cost. 

In  the  final  settlement  there  was  deducted 
from  the  amount  paid  a  sum  equal  to  such 
of  the  fill  in  the  roadway  as  had  been  paid 
for  at  the  rate  of  30  cents  per  cubic  yard,, 
amounting  to  about  $12,000. 

**0n  or  about  February  15,  1904,  the  gov- 
ernment engineer  in  charge  had  cross  sec- 
tions taken  over  the  line  of  the  roadway  in 
question,  which  cross  sections  were  used  in 
computing  the  amount  of  work  done  by  the 
contractor  thereon  outside  of  the  lines  al- 
lowed and  paid  for  in  the  final  estimate,  and. 
the  amount  of  fill  so  made  and  not  paid  for 
was  found  to  be  67,578  cubic  yards,  which, 
at  30  cents  per  cubic  yard,  amounts  to- 
$20,273.40." 

From  these  facts  the  court  concluded  thai 
I  appellant  was  not  entitled  to  recover,  and 
I  Aimww*immMui  ths  pctitloii.    Judgmcnt  was  en- 

941  U.  &. 


1916 


WHITE  V.  UNITBD  STATES. 


151-154 


tered  aooordingly  and  this  appeal  was  then 
pxoaeeuted. 

Mr.  Ctaanncey  Hackett  argued  the  cause 
and  filed  a  brief  for  appellant: 

If  any  doubt  remains  as  to  the  correct 
interpretation  of  the  contract,  the  practical 
construction  of  the  .parties  prevails. 

Garrison  v.  United  States,  7  Wall.  688, 
19  Lw  ed.  277;  District  of  Ckilumbia  v.  Galla- 
her,  124  U.  8.  505,  31  L.  ed.  526,  8  Sup.  Ct. 
Rep.  685;  United  States  v.  Gibbons,  109 
U.  S.  200,  27  L.  ed.  906, 3  Sup.  C?t.  Rep.  117; 
Lowrey  V.  Hawaii,  206  U.  S.  222,  51  L.  ed. 
1033,  27  Sup.  Ct.  Rep.  622;  Brooklyn  L. 
Ins.  Co.  y.  Dutcher,  96  U.  S.  269,  24  L.  ed. 
410;  Chicago  v.  Sheldon,  9  Wall.  50,  19  L. 
ed.  594;  Old  Colony  Trust  Co.  v.  Omaha,  230 
U.  S.  118,  57  L.  ed.  1417,  33  Sup.  a.  Rep. 
967;  Chicago  Q.  W.  R.  Co.  v.  Northern  P.  R. 
Co.  42  C.  C.  A.  25,  101  Fed.  796;  Atty. 
Gen.  y.  Drummond,  1  Drury  &  War.  353, 
affirmed  in  2  H.  L.  Cas.  837. 

Apart  from  any  rights  imder  the  con- 
tract, the  claimant  is  entitled  to  recover 
upon  quantum  meruit. 

Belt  V.  United  States,  15  Ct.  a.  92;  Liv- 
ingston  v.  Ackeston,  5  Cow.  531;  Hickam  v. 
Hickam,  46  Mo.  App.  496;  Turner  v.  Web- 
ster, 24  Kan.  38,  36  Am.  Rep.  261. 

Assistant  Attorney  General  Thompson 
argued  the  cause  and  filed  a  brief  for  ap- 
pellee. 

Mr.  Justice  McKenns,  after  stating  the 
facts  as  above,  delivered  the  opinion  of  the 
court: 

It  appears  from  the  findings  that  the 
plans  showed  a  roadway  bordering  the  res- 
ervoir. This  finding  seems  to  be  contested 
by  the  government,  the  contention  being 
that  where  the  roadway  was  to  be  placed 
*'was  merely  marked,"  and  no  detail  what- 
soever as  to  its  exact  location  or  dimen- 
sions was  shown  by  the  plans.  Tbe  finding, 
however,  is  more  specific.  One  of  the  plans 
showed  the  work  in  general  sections  and  in- 
dicated the  roadway;  another  showed 
finished  surfaces,  with  the  roadway  there- 
on; still  another  showed  the  entire  filtra- 
tion plant,  the  road  again  being  indicated, 
and  it  was  marked  again  on  another  plan. 
Such  persistent  repetition  must  have  had 
other  purpose  tban  mere  designation,  and, 
besides,  there  were  supplemental  plans  fur- 
nished the  contractor  relating  to  the  road- 
way, giving  detail  as  to  grades.  And,  fur- 
ther, the  engineer  in  charge  gave  the  "toe 
of  the  slope"  to  the  contractor  and  "from 
time  to  time  furnished  him  with  the  lines 
showing  the  direction  of  the  road  and  the 
stakes  showing  the  grade."  "The  lines, 
slopes,  and  the  character  of  the  material  al- 
•0  li.  ed. 


lowed  to  be  deposited  thereon"  were  under 
his  inspection. 

The  foroe  of  these  findings  is  added  to  by 
the  fact  that  the  engineer  first  in  charge 
and  under  whom  the  work  was  commenced 
on  the  roadway  drew  the  plans  and  his  ac- 
tion was  their  interpretation.  It  was  not 
inadvertent.  The  first  payment  to  the  eon- 
tractor  was  on  a  voucher  which  contained 
the  work  on  the  road  as  an  item  of  liabil- 
ity, and,  though  subsequent  vouchers 
omitted  such  [163]  specification,  work  on 
the  roadway  was  included  in  the  r^^ular 
monthly  estimates.  And  this  continued  un- 
til a  new  engineer  came  upon  the  seene. 
With  him  came  controversy.  He  not  only 
introduced  a  new  construction  of  the  con- 
tract, but  so  far  reversed  the  construction 
and  action  of  his  predecessor  as  to  deduct  in 
the  final  settlements  the  amounts  allowed 
by  the  latter. 

Undoubtedly  the  contract  has  ambiguity,, 
and  to  present  and  resolve  the  ambiguity 
in  detail  would  require  a  precise  and  literal 
examination  of  the  contract.  Such  exami- 
nation would  greatly  and,  we  think,  useless- 
ly, prolong  this  opinion.  We  should  be 
brought,  nevertheless,  to  a  few  broad  de- 
termining considerations. 

The  contention  of  the  government  is  based 
upon  what  is  said  to  be  the  purpose  of  the 
contract,  which,  it  is  further  said,  "»o  for 
as  appellant  wae  concerned  [italics  coun- 
sePs],  was  the  construction  of  the  filtration 
plant  proper."  The  appellant,  in  opposition, 
'declares  that  the  contract  enumerated  three 
kinds  of  fills  "and  all  other  fills  and  em- 
bankments shown  by  the  plans  or  directed 
to  be  made  by  the  engineer  officer  in 
charge."  Though  some  doubts  beset  appel- 
lant's contention  and  some  considerations 
bear  against  it,  there  are  others  which  de- 
termine for  it.  The  most  important  of  the 
considerations  against  it  is  the  charge  by 
the  government  that  the  contractor  waa 
paid  for  every  yard  of  excavation,  and  that 
the  dirt  excavated  had  to  be  deposited  some- 
where, and  the  roadway  "was  just  as  con- 
venient a  place  as  any  to  dispose"  of  it. 
And  this  is  given  strength  by  the  fact  that 
the  contractor  had  arranged,  at  a  consider- 
able cost,  with  the  Soldiers'  Home  authori- 
ties to  dispose  of  waste  material  on  the 
grounds  of  the  Soldiers'  Home. 

But  there  is  the  countervailing  consider* 
ation  to  which  we  have  adverted,  that  i^ 
of  the  action  of  the  engineer  first  in  charge^ 
and  it  was  he  who  drew  the  contract.  Ha 
was  there  for  direction.  He  considered  that 
the  roadway  [154]  was  part  of  the  scheme. 
He  directed  and  superintended  its  construc- 
tion. And  it  was  a  systematic  structure, 
not  a  mere  dumping  place  or  deposit  for 
material.     It  was  constructed  upon  li"- 


164  SUPREME  COURT  OF 

t 
dopes,  and  grades,  and  of  selected  mate- 
rials. Further,  in  continued  manifestation 
of  his  judgment  that  the  contract  included 
it,  and  in  approval  of  its  conformity  to  the 
contract,  he  directed  pajment  for  it.  There 
Is  nothing  which  reflects  upon  the  sincerity 
of  his  judgment,  and  it  is  necessarilj  the 
important  factor  in  determining  the  re- 
sponsibility of  the  government. 

Whether  the  roadway  was  necessary  or 
accessory  to  the  flltration  plant  is  not  im- 
portant to  consider.  We  may  observe,  how- 
ever, that  it  was  subsequently  finished  by 
the  United  States,  and  manifestly  deemed 
desirable. 

Judgment  reversed  and  causa  remanded, 
with  directions  to  enter  judgment  for  ap- 
pellant on  the  findings  and  in  accordance 
with  this  opinion. 

Mr.  Justice  McReynolds  took  no  part 
In  the  consideration  and  decision  of  this 


THE  UNITED  STATES. 


Oct.  Tddc, 


ESTEBAK  DE  LA  RAMA,  PUT.  in  Err.  and 

Appt., 

V. 

AGUEDA  BENEDICTO  DE  LA  BAMA. 

(See  6.  0.  Reporter's  ed.  154-160.) 

Appeal  —  from  Philippine  supreme 
court  •»  local  practice  —  objections 
raised  too  late. 

1.  The  Federal  Supreme  Court  will  not 
reverse  a  decree  of  the  supreme  court  of  the 
Philippine  Islands  on  objections  that  a  divi- 
sion of  the  conjugal  property  could  not  be 
asked  in  a  divorce  suit  in  the  Philippine 
courts,  but  must  proceed  on  the  footing  of 
a  decree  already  made,  and  that  the  judge 
of  first  instance  who  decided  the  cause  was 
illegally  designated,  where  such  objections 
were  not  presented  to  the  court  below,  nor 
assigned  as  error  on  the  appeal. 

[For  other  cases,  tee  Appeal  and  Error,  VIII. 
j;  VIII.  m.  1,  in  Digest  Sup.  Ct.  1908.) 

Ck>nstItutIonal  law  •»  due  process  of  law 

—  procedure. 

2.  Due  process  of  law  does  not  forbid 
the  hearing  of  a  cause  upon  a  transcript 
of  evidence  formerly  heard  in  court,— es- 
pecially where  the  course  pursued  has  the 
assent  of  the  parties. 

CFor  other  cases,  see  Constitutional  Law,  IV. 
b,  8,  in  Digest  Sup.  Ct.  1908.] 

Note. — On  the  appellate  jurisdiction  of 
the  Federal  Supreme  Court  over  the  su- 
preme court  of  the  Philippine  Islands — see 
note  to  Martinez  v.  International  Bkg.  Corp. 
65  L.  ed.  U.  S.  438. 

On  distinction  between  appeal  and  writ 
of  error — see  note  to  Miners  3ank  v.  Iowa, 
13  L.  ed.  U.  S.  867. 
•32 


Appeal  •»  from  supreme  oovrt  of  Pbll- 
ipplne  Islands  •»  following  decision 
below. 

3.  Taking  the  date  of  a  divorce  decree 
as  the  date  for  liauidating  the  wife's  claim 
for  a  division  of  tne  conjugal  property  can- 
not be  held  erroneous  on  appeal  to  the 
Federal  Supreme  Court  from  a  decree  of 
the  supreme  court  of  th^  Philippine  Islands, 
on  the  grounds  that  there  was  no  formal 
decree  of  separation  of  the  property,  and 
no  such  inventory  as  was  required  by  law, 
where  there  is  nothing  in  the  record  suffi- 
cient to  control  the  opinion  of  the  latter 
court  that  the  method  adopted  by  the  judge 
of  first  instance  "in  liquidating  the  assets 
of  the  conjugal  partnership  was  substan- 
tially in  accord  with  the  method  prescribed 
in  the  Code." 

[For  other  cases,  see  Appeal  and  Error,  VIII. 
m,  1,  in  Digest  Sup.  Ct.  1908.] 

Interest  —  on  Judgment  —  from  what 

time  •»  judicial  discretion. 

4.  The  allowance  of  interest  on  a  de- 
cree for  the  division  of  the  conjugal  prop- 
erty from  the  date  of  a  divorce  decree  in 
the  wife's  favor  is  within  the  discretion  of 
the  court,  notwitbbtanding  the  success  of 
the  husband  in  reducing  the  amount  on  ap- 
peal, where  that  was  the  date  at  which, 
but  for  the  delays  of  the  law,  the  wife 
would  have  received  her  dues,  the  husband 
having  bad  the  lue  of  the  money  in  the 
meantime. 

[For  other  cases,  see  Interest,  I.  d;  I.  f;  Ap- 
peal and  Error,  4393,  4894,  in  Digest  Sup. 
Ct.  1908.] 

Appeal  •»  mode    of    review  •»  divorce 

suit. 

6.  Appeal,   not   writ  of   error,   is  the 

S roper  mode  of  reviewing  in  the  Federal 
upreme  Court  a  decree  of  the  supreme 
court  of  the  Philippine  Islands  in  a  suit 
by  a  wife  for  divorce,  alimony  pendenfs  lite, 
and  a  division  of  the  conjugal  property. 
[For  other  cases,  see  Appeal  and  Error,  il.  b, 
in  Digest  Sup.  Ct.  1908.] 

[No.  216.] 

Submitted  April  18,  1916.    Decided  May  1, 

1916. 

IN  ERROR  to  and  APPEAL  from  the  Su- 
preme Court  of  the  Philippine  Islands  to 
review  a  decree  which,  on  a  second  appeal, 
affirmed  a  decree  in  favor  of  the  wife  in  a 
suit  by  her  for  divorce,  alimony  pendente 
lite,  and  a  division  of  the  conjugal  prop- 
erty. Writ  of  error  dismissed.  Decree  af- 
firmed on  appeal. 

See  same  case  below,  25  Philippine,  437. 

The  facts  are  stated  in  the  opinion. 

Mr.  Rufus  S.  Day  submitted  the  cause 
for  plaintiff  in  error  and  appellant.  Messrs. 
Charles  Edmond  Cotterill  and  Edmund  W. 
Van  Dyke  were  on  the  brief: 

The  proceeding  for  divorce  and  the  pro- 
ceeding to  secure  a  separation  of  the  prop- 
'  erty  were  required  by  law  in  the  Philippines 

241  U.  S. 


1915. 


D£  LA  RAMA  v.  D£  LA  RAMA. 


157,  168 


to  be  instituted,  if  mt  all,  in  separate 
actions,  and  they  were,  therefore,  improp- 
erly  joined. 

1  Ruiz  Civil  Code,  p.  306;  1  Manresa, 
Comentarios  al  Codigo  Civil  Espafiol,  p. 
396;  9  Code,  pp.  769  et  seq. 

The  failure  of  the  supreme  court  below 
to  hold  that  the  suit  ought  to  have  been 
dismissed  by  the  court  of  first  instance — 
or  to  hold,  at  least,  that  that  part  of  the 
demand  of  the  plaintiff  which  relates  to  the 
separation  of  the  conjugal  partnership  prop- 
ci^y  ought  to  have  been  dismissed — is  error 
of  which  this  court  may  take  cognizance 
even  though  not  mentioned  in  the  assign- 
ments of  error. 

Behn  v.  Campbell,  205  U.  8.  403,  61  L. 
ed.  857,  27  Sup.  Ct.  Rep.  502;  Gsell  t.  In- 
sular Collector  of  Customs,  239  U.  8.  93, 
ante,  163,  36  Sup.  Ct.  Rep.  39. 

The  courts  below  erred  in  attempting  to 
liquidate  the  claim  of  the  wife  to  a  share 
in  the  conjugal  partnership  property  as  of 
July  5,  1002,  the  date  of  the  judgment  of 
divorce.  The  judgment  with  reference  to 
the  wife's  claim  to  such  share  was  a  mere 
money  judgment.  There  should  have  been 
an  order  or  decree  of  separation  of  the 
property  in  question,  as  required  by  law, 
and  the  liquidation  should  have  been  made 
as  of  the  date  of  that  order  or  decree.  In 
the  absence  thereof,  neither  the  court  of 
first  instance  of  Iloilo  nor  the  supreme  court 
of  the  Islands  had  jurisdiction  to  render 
any  judgment  whatever  in  this  branch  of 
the  case. 

9  Manresa,  pp.  687,  773;  9  Ruiz,  civil 
code,  pp.  184,  208; 

The  court  below  erred  in  affirming  that 
part  of  the  judgment  of  the  court  of  first 
instance  of  Iloilo  which  allows  interest  on 
the  amount  stated  therein  from  July  6, 
1902. 

Garrozi  v.  Dastas,  204  U.  S.  64,  51  L.  ed. 
369,  27  Sup.  Ct.  Rep.  224;  KneeUind  v. 
American  Loan  &  T.  Co.  138  U.  S.  509,  34 
L.  ed.  1052,  11  Sup.  Ct.  Rep.  426;  Dlinois 
C.  R.  Co.  V.  Turrill,  110  U.  S.  301,  28  L.  ed. 
154,  4  Sup.  Ct.  Rep.  5. 

Messrs.  Frederic  R.  Coudert  and  How- 
ard Thayer  Kingsbury  submitted  the 
cause  for  defendant  in  error  and  appellee: 

The  trial  court  had  power  to  award  a 
divorce  and  liquidate  the  conjugal  property 
in  the  same  suit. 

De  la  Rama  v.  De  la  Rama,  201  U.  8. 
303,  50  L.  ed.  765,  26  Spp.  Ct.  Rep.  485; 
De  Villanueva  v.  Villanueva,  239  U.  S.  293, 
ante,  203,  36  Sup.  Ct.  Rep.  100;  De  Lesder- 
nier  v.  De  Lesdcrnier,  45  La.  Ann.  1364,  14 
So.  101;  Lozenghcim  v.  Martin,  7  La.  Ann. 
180;  Duncan  v.  Brown,  18  N.  M.  570,  130 
Pac.  140;  Howe  v.  Howe,  4  Nev.  460;  Har- 
•0  L.  ed. 


man  v.  Harman,  1  Cal.  215;  Kashaw  t. 
Kashaw,  3  Cal.  312;  Rice  t.  Rice,  31  Tex. 
174. 

The  judge  who  rendered  the  judgment  of 
December  5th,  1010,  had  power  to  do  so. 

McDowell  V.  United  States,  150  U.  S. 
506,  40  L.  ed.  271,  16  Sup.  Ct.  Rep.  111. 

The  appellant  has  no  standing  to  attack 
in  this  court  either  the  joinder  of  relief  or 
the  jurisdiction  of  the  trial  judge. 

The  Vaughan  (The  Telegraph  v.  Gordon) 
14  Wall.  258,  20  L.  ed.  807;  San  Pedro  &  a 
del  A.  Co.  V.  United  States,  146  U.  S.  120, 
138,  36  L.  ed.  912,  916,  13  Sup.  Ct.  Rep. 
94;  McLoughlin  v.  Raphael  Tuck  &  Sons 
Co.  191  U.  S.  267,  271,  48  L.  ed.  178,  24 
Sup.  Ct.  Rep.  105. 

Mr.  Justice  Holmes  delivered  the  opiniom 
of  the  court: 

This  is  a  suit  by  a  wife  for  divorce,  ali- 
mony pendente  lite,  and  a  division  of  the 
conjugal  property.  It  has  been  before  this 
oourt  in  the  first  aspect  (201  U.  S.  303,  50 
L.  ed.  765,  26  Sup.  Ct.  Rep.  485),  and  now 
comes  here  on  matters  affecting  tlie  division 
of  property,  beginning  with  the  fundamen- 
tal  objection  that  the  division  could  not  be 
asked  in  the  divorce  suit,  but  must  proceed 
on  the  footing  of  a  decree  already  made. 
As  to  this  it  is  enough  to  say  that  no  such 
error  was  assigned  as  a  ground  for  appeal^ 
and  the  objection  comes  too  late.  At  the 
previous  stage  the  right  of  the  plaintiff  to 
her  proportion  of  the  conjugal  property,  to 
alimony  pending  suit,  and  to  other  allow- 
ances claimed,  was  said  to  be  the  basis  of 
our  jurisdiction.  201  U.  8.  318.  De  Villa- 
nueva V.  Villanueva,  239  U.  8.  293,  294, 
ante,  293,  295,  36  Sr.p.  Ct  Rep.  109.  The 
oourt  of  first  instance  had  jurisdiction  of 
the  subject-matter,  and  the  separation  or  un- 
ion of  the  two  causes  was  merely  a  question 
of  procedure  and  convenience.  The  defend- 
ant impliedly  [158]  admitted  the  jurisdic- 
tion by  pleading  that  there  was  no  common 
property,  and  that  "therefore"  the  separa- 
tion should  be  denied.  After  the  matter  had 
been  adverted  to  by  the  trial  judge  and  the 
joinder  declared  proper,  it  was  dealt  with 
as  legitimate  by  the  supreme  court,  and 
upon  a  petition  for  rehearing  the  only 
objections  urged  by  the  defendant  con- 
cerned matters  of  detail.  There  is  every 
reason  that  the  local  practice  sanctioned  in 
this  case  by  the  local  courts  should  not  be 
disturbed. 

The  next  error  alleged  in  argument  also 
was  not  assigned.  It  is  that  Judge  Norris, 
who  first  heard  the  evidence,  having  re- 
signed. Judge  McCabe,  of  the  court  of  first 
instance,  who  finally  decided  the  separation 
of  conjugal  property,  was  designated  by 
Judge   Ross    (before  whom   otherwise   the 

98S 


158-160 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


case  would  have  eome),  on  the  ground  that 
the  latter  was  disqualified;  and  that  Judge 
Ross  had  no  power  to  do  so  under  the  Code 
of  Civil  Procedure  tlien  in  force.  Upon 
this  point  again  we  should  not  disturb  the 
course  adopted  by  the  local  tribunals  with- 
out stronger  reasons  than  are  offered  here, 
and  therefore  do  not  discuss  the  question 
at  Icngtii.  The  parties  could  have  agreed 
in  writing  upon  a  judge,  and  they  did 
agree  in  writing  at  a  later  stage  that  Judge 
McCabe  should  decide  the  case  without 
waiting  for  the  action  of  the  assessors 
whom  the  law  provides  to  assist  upon  mat- 
ters of  fact.  This  objection,  like  the  pre- 
ceding, seems  not  to  have  been  even 
suggested  to  the  supreme  court  of  the  Phil- 
ippines. To  listen  to  it  now  would  be  not  to 
prevent,  but  to  accomplish,  an  injustice  not 
to  be  tolerated  except  under  the  most  per- 
emptory requirement  of  law. 

The  next  point  argued,  again  not  as- 
signed as  error,  is  that  it  seems  from  the 
opinion  of  the  judge  of  first  instance  that 
the  trial  was  had  upon  the  evidence  that 
had  been  offered  before  Judge  Norris.  If 
we  are  to  assume  the  fact,  it  is  a  most  ex- 
traordinary suggestion  that,  even  though 
the  parties  seem  to  have  assented  to  the 
course  [159 J  pursued,  due  process  of  law 
forbids  a  hearing  upon  a  transcript  of  evi- 
dence formerly  heard  in  court.  We  shall 
say  no  more  upon  this  point. 

The  errors  that  were  assigned  may  be  dis- 
posed of  with  equal  brevity.  The  first  one 
is  the  taking  of  July  6,  1902,  the  date  of 
the  decree  of  divorce,  afterwards  affirmed, 
as  the  date  for  liquidating  the  wife's  claim. 
It  is  urged  that  there  was  no  formal  decree 
of  separation  of  the  property,  and  that  un- 
til such  an  order  had  been  made  the  court 
had  no  right  to  enter  a  judgment.  It  also 
is  argued  that  there  was  no  such  inventory 
as  was  required  by  law.  But  the  testimony 
and  other  evidence  are  not  before  us,  and, 
apart  from  our  often-stated  unwillingness 
to  interfere  with  matters  of  local  admin- 
istration unless  clear  and  important  error 
is  shown,  there  is  nothing  in  the  record 
sufficient  to  control  the  opinion  of  the  su- 
preme court  of  the  Islands  that  "the  meth- 
od adopted  by  [the  judge  of  first  instance] 
in  liquidating  the  assets  of  the  conjugal 
partnership  was  substantially  in  accord 
with  the  method  prescribed  in  the  Code." 
^25  Philippine,  445.]  We  disallow  the  at- 
tempt to  reopen  some  questions  of  detail, 
such  as  a  charge  of  estimated  profits,  upon 
this  and  other  grounds.  See  Piza  Her- 
manos  v.  Caldentey,  231  U.  S.  600,  58  L. 
ed.  439,  34  Sup.  Ct.  Rep.  253. 

The  only  remaining  item  is  charging  in- 
terest on  the  judgment  from  July  5,  1902. 
But  that  was  the  date  at  which,  but  for 
•34 


the  delays  of  the  law,  the  wife  would  have 
received  her  dues,  the  husband  has  had  the 
use  of  the  money  meanwhile,  and  we  are 
not  prepared  to  say  that  it  was  not  at 
least  within  the  discretion  of  the  court  to 
allow  the  charge,  notwithstanding  the  suc- 
cess of  the  husband  in  reducing  the  amount 
on  appeal.  Stoughton  v.  Lynch,  2  Johns. 
Ch.  209,  219;  HoUister  v.  Barkley,  11  N.  H. 
501,  511.  See  Bamhart  v.  Edwards,  128 
Cal.  572,  61  Pac.  176;  McLimans  v.  Lan- 
caster, 65  Wis.  240,  26  K.  W.  506;  Raw- 
lings  V.  Anheuser-Busch  Brewing  Co.  69 
Neb.  34,  94  N.  W.  1001.  A  discretion  is 
recognized  even  in  actions  of  tort.  Eddy  v. 
[160]  Lafayette,  163  U.  S.  456,  467,  41  L. 
ed.  225,  m,  16  Sup.  Ct.  Rep.  1082;  Eraser 
V.  Bigelow  Carpet  Co.  141  Mass.  126,  4 
N.  E.  620.  The  judgment  upon  the  appeal 
will  be  affirmed  and  the  writ  of  error  dis- 
missed. De  la  Rama  v.  De  la  Rama,  201 
U.  S.  303,  50  L.  ed.  765,  26  Sup.  Ct.  Rep. 
485;  Gsell  v.  Insular  Collector  of  Customs, 
23§  U.  S.  93,  ante,  163,  36  Sup.  Ct.  Rep.  39. 

Writ  of  error  dismissed. 

Judgment  affirmed. 


ELWYN  H.  JOHNSON,  Trustee  in  Bank- 
ruptcy  of  the  Warren  Construction  Com- 
pany, Plff.  in  Err., 

V. 

ROOT  MANUFACTURING  COMPANY. 

(See  S.  C.  Reporter's  ed.  160-165.) 

Bankruptcy  •»  unlawful  preference  — 
equitable  lien  •»  payment. 

A  contract  between  a  railway  com- 
pany, a  construction  company,  and  the 
latter's  sureties,  which,  after  reciting  the 
controversy  as  to  whether  the  construction 
contract  had  been  performed,  the  filing  of 
claims  for  liens  and  attachment  suits  for 
more  than  the  sum  admitted  by  the  rail- 
way company  to  be  due,  and  the  latter  com- 
pany's assertion  of  its  right  against  the 
surety  companies,  fixed  a  sum  to  be  paid 
by  the  railway  company  in  full  settlement 
of  the  mutual  claims  between  it  and  the 
construction  company,  which  sum,  with  an 
additional  amount  to  be  furnished  by  the 
surety  companies,  ^ould  be  put  into  the 
hands  of  named  trustees  "to  be  used  in 
paying  all  lienable  claims"  growing  out  of 
the  construction  contract,  created  an  equi- 
table lien  in  favor  of  all  alleged  liens  which 
the  parties  should  deem  to  have  color  of 
right,  and  the  fund  having  thus  been  ap- 
propriated and  set  aside  more  than  four 
months  before  bankruptcy  proceedings 
against  the  construction  company  were  be- 
gun, a  preference  was  not  created  by  the 
formal  ascertainment  of,  and  payment  to,  a 
specific  beneficiary  within  the  four  months* 

period. 

[For  other  cases,  see  Bnnkruptcy,  YI.  b,  2, 
in  Digest  Sup.  Ct.  1908.] 


[No.  308.] 


adi  u.  8. 


1915. 


JOHNSON  V.  ROOT  MFG.  00. 


162,  163 


Argued  and  submitted  April  18,  1916.    De- 
cided May  1,  1916. 

IN  ERROR  to  the  United  SUtes  Circuit 
Court  of  Appeals  for  the  Seventh  Cir- 
cuit to  review  a  judgment  which,  reversing 
a  judgment  of  the  District  Court  for  the 
District  of  Indiana,  ordered  judgment  in 
favor  of  the  defendant  in  a  suit  by  a  trus- 
tee in  bankruptcy  to  recover  an  alleged 
preference.    Affirmed. 

See  same  case  below,  136  C.  0.  A.  139, 
219  Fed.  397. 

The  facts  are  stated  in  the  opinion. 

Mr.  W.  H.  Thompson  argued  the  cause, 
«nd,  with  Messrs.  C.  O.  Shirley,  S.  D.  Miller, 
W.  H.  H.  Miller,  Fred  H.  Atwood,  Frank 
B.  Pease,  Charles  0.  Loucks,  and  Vernon 

B.  Loucks,  filed  a  brief  for  plaintiff  in  er- 
ror: 

Cases  sustaining  equitable  liens  present 
circumstances  essentially  different  from 
those  involved  in  the  instant  case. 

Walker  v.  Brown,  165  U.  S.  654,  41  L.  ed. 
S65,  17  Sup.  Ct.  Rep.  453;  Sexton  v.  Kess- 
ler  A^  Co.  225  U.  S.  90,  56  L.  ed.  995,  32 
Sup.  Ct.  Rep.  657 ;  Van  Iderstine  v.  Nation- 
al  Discount  Co.  227  U.  S.  575,  67  L.  ed.  652, 
33  Sup.  Ct.  Rep.  343;  Greey  v.  Docken- 
dorff,  231  U.  8.  513,  58  L.  ed  339,  34*  Sup. 
<)t.  Rep.  166;  McDonald  v.  Daskam,  53  C. 

C.  A.  554,  116  Fed.  276;   Ketchum  v.  St. 
Louis,  101  U.  S.  306,  315,  25  L.  ed.  999. 

The  contract  of  January  12,  1912,  was 
made  more  than  four  months  prior  to  bank- 
ruptcy, but  the  contract  of  April  10,  and 
the  payment  made  therein,  was  within  the 
four  months'  period.  The  Root  Bianufac- 
turing  Company  was  not  a  party  to  the 
earlier  agreement,  but,  even  if  it  had  been, 
the  transaction  would  not  be  deprived  of 
its  preferential  character  by  the  fact  that 
it  was  effected  in  carrying  out  and  perform- 
ing a  contract  or  other  negotiation  executed 
or  agreed  upon  at  a  time  more  than  four 
months  before  bankruptcy  proceedings. 

Wilson  Bros.  v.  Nelson,  183  U.  S.  191, 
46  L.  ed.  147,  22  Sup.  Ct.  Rep.  74;  Re 
Smith,  176  Fed.  429;  Re  Great  Western 
Mfg.  Co.  81  C.  0.  A.  341,  152  Fed.  127; 
Vitzhun  V.  Large,  162  Fed.  686;  Re  Dismal 
Swamp  Contracting  Co.  135  Fed.  415;  Re 
Bonk,  111  Fed.  154;  Long  v.  Farmers' 
State  Bank,  9  L.R.A.(NJ9.)  585,  77  C.  0.  A. 
.638,  147  Fed.  360. 

To  create  an  equitable  lien,  there  must 
be  a  clear  intention  on  the  part  of  the  par- 
ties to  do  so. 

Walker  v.  Brown,  165  U.  S.  654,  41  L.  ed. 
965,  17  Sup.  Ct.  Rep.  453. 

An  instrument  creating  an  equitable 
lien  must  purport  to  give  an  absolute  pres- 
40  li.  ed. 


ent  right.    It  must  purport  not  to  promise* 
but  to  triuisfer  the  interest. 

Sexton  V.  Kessler  A  Co.  225  U.  S.  90, 
56  L.  ed.  995,  82  Sup.  Ct.  Rep.  657. 

Mr.  Frank  8.  Boby  submitted  the  cause 
for  defendant  in  error.  Mr.  Ellas  D.  Sals* 
bury  was  on  the  brief: 

The  payment  to  the  Root  Manufactur- 
ing Company  by  Messrs.  Littleton  and  Will- 
son,  trustees,  with  the  approval  of  the 
bankrupt,  the  railway  company,  and  the 
surety  companies,  was  a  construction  of  the 
contract  as  applied  to  that  claim,  and  -an 
interpretation  of  the  term  by  the  parties 
themselves,  and  such  construction  and  in- 
terpretation will  be  followed  by  the  courts. 

Knox  County  v.  Ninth  Nat.  Bank,  147  U. 
S.  91,  99,  37  L.  ed.  93,  96,  13  Sup.  Ct.  Rep. 
267;  SUinbach  v.  Stewart,  11  Wall.  566,  20 
L.  ed.  56;  Frazier  v.  Myers,  132  Ind.  72,  31 
N.  £.  536. 

An  equitable  lien  was  created  by  the 
agreements  between  the  parties. 

Sexton  V.  Kessler  &  Co.  225  U.  S.  96,  99, 
56  L.  ed.  995, 1000,  32  Sup.  Ct.  Rep.  657. 

Mr.  Justice  Holmes  delivered  the  opinion 
of  the  court: 

This  is  a  suit  to  recover  an  alleged  pref- 
erence from  the  defendant  in  error.  The 
circuit  court  of  appeals  reversed  a  Judg- 
ment recovered  by  the  plaintiff,  and  ordered 
judgment  for  the  defendant.  135  C.  C.  A. 
139,  219  Fed.  397.  This  writ  of  error  waa 
taken  out  before  the  passage  of  the  act  of 
January  28,  1915,  chap.  22,  i  4,  38  Stat 
at  L.  803,  804. 

The  facts  are  these:  On  May  9,  1910,  the 
Warren  Construction  Company,  the  bank- 
rupt, had  contracted  to  do  some  construo- 
tion  for  a  railroad  company,  receiving  month- 
ly payments  on  account,  and  agreeing  that 
if  at  any  time  there  should  be  evidence  of 
any  lien  for  which  the  railroad  might  be- 
come liable,  and  which  was  chargeable  to 
the  Warren  Company,  the  railroad  might 
retain  an  amount  sufficient  to  indemnify  it. 
Should  there  prove  to  be  such  a  claim  after 
the  payments  were  made,  the  Warren  Com- 
pany agreed  to  refund  all  moneys  the  rail- 
road might  be  compelled  to  pay  in 
discharging  any  lien  made  obligatory  in  con- 
sequence of  the  Warren  Company's  default. 
The  Warren  Company  gave  a  bond  with 
sureties  for  the  performance  of  this  con- 
tract. Later  it  made  a  [163]  written  sub- 
contract with  the  Root  Manufacturing 
Company  for  materials,  in  which  the  Root 
Company  in  the  fullest  terms  renounced  all 
lien  on  its  own  behalf,  and  contracted  that 
all  under  it  should  do  the  same.  Monthly 
payments  were  to  be  made  on  account  and 


16^166 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct. 


final  pAyment  within  forty  days  after  the 
contract  was  "fulfilled." 

In  1911  the  Root  Company  notified  the 
railroad  that  it  was  not  being  paid,  and 
that  it  would  not  furnish  more  material 
unless  the  railroad  would  see  that  it  was 
paid.  The  railroad  gave  the  assurance  and 
the  Root  Company  continued  to  furnish  the 
materials  called  for  by  its  contract.  Seem- 
ingly the  payments  continued  to  be  unsat- 
isfactory, and  on  November  18,  1911,  after 
the  Root  Company  had  performed  its  con- 
tract, there  was  unpaid  $12,895.34.  On  No- 
vember 25,  1911,  the  Root  Company  filed 
statutory  notices  of  its  intention  to  hold 
a  lien  upon  the  railroad's  property  for  the 
amount  then  due.  On  January  12,  1912, 
after  conferences  of  all  parties  concerned,  a 
contract  was  made  between  the  railroad,  the 
Warren  Company  and  its  sureties,  reciting 
controversy  as  to  whether  the  Warren  Com* 
pany's  contract  had  been  performed,  the 
filing  of  claims  for  liens  and  attachment 
suits  for  more  than  the  sum  admitted  by 
the  railroad  to  be  due,  and  the  railroad's 
assertion  of  its  right  against  the  surety 
companies.  This  contract  fixed  $42,000  as 
a  sum  to  be  paid  by  the  railroad  in  full 
settlement  of  the  mutual  claims  between  it 
and  the  Warren  Company,  and  provided 
that,  with  $20,000  to  be  furnished  by  the 
surety  companies,  the  sum  should  be  put 
into  the  hands  of  named  trustees,  "to  be 
used  ii^  paying  all  lienable  claims''  growing 
out  of  the  construction  contract.  If  the 
fund  was  not  sufficient  to  pay  lienable 
claims  in  full,  the  surety  companies  were 
to  furnish  the  additional  money  necessary. 
After  all  lienable  claims  were  paid,  the 
balance,  if  any,  of  the  fund  was  to  be  paid 
first  to  reimburse  the  surety  companies  for 
their  contribution,  [164]  and  after  that  to 
the  Warren  Company,  subject  to  such  at- 
tachments as  might  be  filed  against  the 
sum. 

On  April  10,  1912,  a  written  contract 
was  made  between  the  railroad,  the  sureties, 
the  Warren  Company,  and  the  Root  Com- 
pany, which  recited  the  claim  of  the  Root 
Company  and  that  the  railroad  had  money 
in  its  hands,  held  back  under  its  contract 
with  the  Warren  Company,  for  the  purpose 
of  protecting  the  roaid  against  liens,  and 
agreed  that  $6,447.67  should  be  paid  to  the 
Root  Company  by  way  of  compromise,  that 
the  Root  Company  should  assign  its  claim 
to  the  trustee  under  the  former  instrument, 
surrendering  to  the  Warren  Company  notes 
for  60  per  cent  of  its  claim,  and  that  the 
trustee  should  reassign  to  the  Root  Com- 
pany the  unpaid  portion  of  its  claim  when 
attachments  against  the  fund  had  been 
disposed  of.  The  payment  was  made  the 
same  day,  and  the  Root  Company  executed 
93« 


a  release,  as  agreed.  The  sum  was  a  larger 
percentage  than  will  be  received  by  the  un- 
secured creditors  of  the  Warren  Company, 
but  a  smaller  one  than  that  received  by  any 
other  subcontractors  with  a  lien.  The  peti- 
tion in  bankruptcy  was  filed  on  July  18, 
1912,  and  the  above  payment  was  a  prefer- 
ence if  it  stood  as  a  payment  to  an  unse- 
cured creditor  in  the  circumstances  on  the 
date  when  it  was  made. 

The  circuit  court  of  appeals  held  that  the 
instrument  of  January  12  created  an  equi- 
table lien  that  justified  the  payment,  al- 
though it  was  of  opinion  that  the  lien  as- 
serted by  the  Root  Company  could  not  have 
been  enforced.     The  plaintiff'  in  error  eon- 
tenda  that  the  provision  in  favor  of  "lien- 
able claims"   was   confined   to   those  that 
were  secured  by  a  valid  lien.    We  express 
no  opinion  as  to  whether  the  lien  of  the 
Root  Company,  asserted  against  the  prop- 
erty of  the  railroad,  could  have  been  de- 
feated  by   its   contract  with   the   Warrea 
Company  notwithstanding  the  Warren  Com- 
pany's default.    It  is  enough  that  we  agree 
with  the  ultimate  .view  of  the  circuit  court 
of  [165]  appeals.  The  agreement  'of  Janu- 
ary 12  was  intended  for  practical  purposes, 
to  clear  the  railroad  property  from  claims. 
It  contemplated  possible  controversies,  as 
it  provided  for  costa,  but  it  did  not  require 
that  every  disputed  lien  should  be  fought 
out  to  the  end.    It  was  understood  by  the 
parties   to    extend    to   the   compromise  of 
claims  that  stood  upon  debatable  ground, 
as  was  shown  by  the  agreement  ^nder  which 
the  payment  was  made.     It  set   aside  a 
specific  fund  in  a  third  hand  to  that  end. 
All  the  parties  acted  in  good  faith.     The 
$42,000  credited  to  the  Warren  Company  as 
retained  by  the  railroad  was  nearly  twice 
what  the  railroad  admitted  to  be  due,  apart 
from  the  compromise  by  which  it  secured 
the  application  of  that  sum  to  clearing  its 
land.    We  are  of  opinion  that  there  is  no 
reasonable  doubt  that  all  parties  were  jus- 
tified in  the  course  adopted,  that  the  in- 
strument of  January  12  created  an  equi- 
table lien  in  favor  of  all  alleged  liens  which 
the  parties  should  deem  to  have  color  oi 
right,  and  that  the  fund  being  thus  appro- 
priated and  set  aside,  it  does  not  matter 
that  the  formal  ascertainment  of  the  ^>e- 
cific    beneficiary    was    made    within    four 
months  of  the  bankruptcy  proceedings.    It 
was  well  understood  before.    The  Root  Com- 
pany took  part  in  the  preliminary  discus- 
sions, and  ^ere  can  be  no  doubt  that  it  was 
expected   by   all   on   January    12   that   its 
claim,  however  disputed,  would  have  to  be 
dealt  with  when  the  fund  came  to  be  paid 
out. 
Decree  affirmed. 

241  U.  8. 


1915. 


LATTA  k  T.  CONSTRUCTION  CO.  t.  BATTHliOOB. 


165 


[166]  LATTA  k  TERRY  CONSTRUCTION 
tOAlPANY,  Appt., 

V. 

BRITISH    STEAMSHIP    "RAITHMOOR," 
William  Lvaud,  Master  and  Claimant.^ 

(See  S.  C.  Reporter's  ed.  166-177.) 

Admiralty  jurisdiction  •»  collision  with 
uullnlshed  pier  for  beacon. 

Ihe  admiralty  jurisdiction  embraces 
a  libel  in  rem  to  recover  for  the  damages 
negligently  inflicted  by  a  colliding  vessel 
upon  an  unfinished  foundation  pier  (and  a 
temporary  platform  used  in  connection  with 
the  work  of  construction)  consisting  of  con- 
crete piles  built  by  a  government  contractor 
on  the  edge  of  a  navigable  channel  in  water 
some  27  feet  deep,  and  intended  to  support 
a    beacon    to   be   installed   by    the    United 

SUtes. 

LFui-  other  cases,  see  Admiralty,  187-ld2,  in 
Digest  Sup.  Ct.  1908.] 

[No.  24.] 

Argued  January  26,  1016.    Decided  May  1, 

1016. 

APPEAL  from  the  District  Court  of  the 
United  States  for  the  Eastern  District 
of  Pennsylvania  to  review  a  decree  which 
dismissed,  for  want  of  jurisdiction,  a  libel 
in  rem  in  so  far  as  it  sought  to  recover 
for  the  damages  negligently  inflicted  by  a 
colliding  vessel  upon,  an  imflnished  pier  in- 
tended to  support  a  government  beacon. 
Reversed  and  remanded  for  further  pro- 
ceedings. 

See  same  case  below,  186  Fed.  849. 

The  facts  are  stated  in  the  opinion. 

Mr.  H.  Alan  Dawson  argued  the  cause, 
and,  with  Messrs.  Edward  J.  Mingey  and  J. 
Rodman  Paul,  filed  a  brief  for  appellant: 

The  analogy  to  an  unfinished  ship  sup- 
ports the  jurisdiction  in  the  case  at  bar. 

Tucker  v.  Alexandroff,  183  U.  S.  424,  46 
L.  ed.  264,  22  Sup.  Ct.  Rep.  105. 

The  case  at  bar  is  ruled  by  The  Black- 
heath  (United  States  v.  Evans)  195  U.  S. 
361,  40  L.  ed.  236,  25  Sup.  Ct.  Rep.  46,  and 
the  general  principles  therein  announced 
and  applied. 

Cleveland  Terminal  ft  V.  R.  C6.  ▼. 
aeveland  S.  S.  Co.  208  U.  S.  316,  320,  52 
L.  ed.  508,  512,  28  Sup.  Ct.  Rep.  414,  13 
Ann.  Cas.  125. 

Courts  of  admiraltj  have  taken  jurisdic- 
tion for  damages  to  the  following  struc- 
tures for  the  reason  that  they  were  located 
in  navigable  waters  and  did  not  concern 
commerce  on  land: 

(1)  A  beacon. 

The  'Blackheath,  supra. 


1  This  case  is  reported  by  the  Official  Re- 
porter under  the  title  of  "The  Raithmoor." 
60  li.  ed. 


(2)  Submarine  cables  rsatiag  mi  tlw 
bottom  of  navigable  water,  notwithstanding 
connection  of  the  ends  with  the  shore. 

Postal  Teleg.  Cable  Co.  v.  P.  Sanford 
Ross,  221  Fed.  105;  The  WiUUm  H.  Bailey» 
100  Fed.  115,  affirmed  in  50  C.  C.  A.  76,  111 
Fed.  1006;  The  Anita  Berwind,  107  Fed. 
721;  The  City  of  Richmond,  43  Fed.  85; 
Stephens  k  C.  TVansp.  Co.  t.  Western  U» 
Teleg.  Co.  8  Ben.  502,  Fed.  Cas.  No.  13,371* 

(8)  Temporary  platform  structure  rest- 
ing on  girders  sunk  into  the  bottom  of  th» 
navigable  waters  of  the  Hudson  river,  and 
in  use  by  private  contractors  in  the  re- 
moval of  a  rock,  under  contract  with  th» 
government. 

The  Senator  Rice,  212  Fed.  960. 

(4)  Injury  to  a  person  on  a  pontoon  fas- 
tened to  the  shore  by  a  cable,  and  used  aa 
a  landing  in  connection  with  a  ferrj. 

The  Mackinaw,  165  Fed.  351. 

(5)  Floating  bathhouse  moored  to  th» 
shore  by  poles  and  chains,  access  to  it  from 
the  shore  being  had  over  a  gangway  of 
planks. 

The  M.  R.  Braios,  10  Ben.  436,  Fed.  Caa. 
No.  9,898. 

(6)  Floating  drydock  moored  to  a  wharf. 
Simpson   t.   The   Csres,   Fed.   Cas.   No. 

12,881. 

(7)  Raft  of  logs  in  tow  of  a  tug  in  nari- 
gable  waters. 

The  F.  k  P.  M.  No.  2,  83  Fed.  611. 

(8)  Fish  nets  extending  out  from  the- 
shore  into  navigable  waters  of  Albermarl^ 
sound. 

The  Armorica,  180  Fed.  603. 

(9)  Steel  blooms  thrown  into  navigable 
water  through  the  breaking  down  of  a  de- 
fective wharf. 

The  City  of  Lincoln,  26  Fed.  836. 

(10)  Salvage  by  a  tug  in  extinguishing  a 
fire  on  a  steamship  in  drydock,  undergoinfp 
repairs. 

The  Jefferson,  216  U.  8. 130,  54  L.  ed.  125,. 
30  Sup.  Ct.  Rep.  54,  17  Ann.  Cas.  907. 

(11)  Hire  of  a  dredge  while  engaged  in  a 
partly  land  transaction  in  dredging  material 
from  a  navigable  stream  for  the  purpose  of 
piping  it  onto  the  land  in  aid  of  a  land  pro- 
ject. 

Bowers  Hydraulic  Dredging  Co.  v.  Federal 
Contracting  Co.  148  Fbd.  290. 

(12)  Repairs  to  an  intrastate  canal  boat 
in  drydock. 

The  Robert  W.  Parsons  (Perry  t.  Haines) 
191  U.  S.  17,  48  L.  ed.  73,  24  Sup.  Ct  Rep. 
8. 

(13)  Injury  to  a  floating  elevator  which 
was  anchored  to  and  moved  up  and  down 
upon  wooden  spuds  imbedded  in  the  mud 
under  navigable  waters,  where  she  was  en- 

•87 


SUPREBiE  COURT  OF  THE  UNITED  STATES. 


Oct.  TkBM, 


g!aged  in  trmnsf erring  grain  from  a  schooner 
to  canal  boats. 

The  Frank  R.  Gibson,  87  Fed.  364. 

Courts  of  admiralty  have  dectined  to  take 
jurisdiction  of  injuries  to  the  following 
classes  of  objects  upon  the  ground  that  they 
were  land  structures: 

(1)  Warehouse  on  wharf,  houses  on  shore, 
and  contents  of  warehouse  on  shore. 

The  Plymouth  (Hough  v.  Western  Transp. 
Co.)  3  WaU.  20,  18  L.  ed.  125;  Ex  parte 
Phenix  Ins.  Co.  118  U.  S.  610,  30  L.  ed.  274, 
7  Sup.  Ct.  Rep.  25;  Johnson  v.  Chicago  A 
P.  Elevator  Co.  119  U.  S.  388,  30  L.  ed.  447, 
7  Sup.  Ct.  Rep.  254. 

(2)  Injuries  to  a  pier,  wharf,  or  dock,  and 
to  persons  or  property  thereon. 

Cleveland  Terminal  A  V.  R,  Co.  v.  Cleve- 
land S.  S.  Co.  208  U.  S.  316,  52  L.  ed.  508, 
28  Sup.  Ct.  Rep.  414,  13  Ann.  Cas.  125; 
The  Mary  Stewart,  10  Fed.  137;  The  Mary 
Garrett,  63  Fed.  1009;  The  Albion,  123  Fed. 
189;  Homer  Ramsdell  Transp.  Co.  v.  Com- 
pagnie  Generals  Transatlantique,  63  Fed. 
845;  The  Curtin,  152  Fed.  588;  The  Haxby, 
94  Fed.  1010;  The  Ottawa,  Browne,  Adm. 
356,  Fed.  Cas.  No.  10,616. 

(3)  Injuries  to  bridges  which  immedi- 
ately concern  commerce  upon  land. 

The  Troy,  208  U.  S.  321,  62  L.  ed.  512,  28 
Sup.  Ct.  Rep.  416;  Re  Rock  Island  Bridge, 
6  Wall.  213,  18  L.  ed.  753;  Milwaukee  v. 
The  Curtis,  3  L.RA.  711,  37  Fed.  705;  The 
John  C.  Sweeney,  55  Fed.  540;  The  Neil 
Cochran,  Browne,  Adm.  162,  Fed.  Gas.  No. 
10,087. 

(4)  A  marine  railway,  the  upper  end  of 
which  was  on  shore,  and  securely  and  per- 
manently fastened  to  the  shore,  but  the 
ways  of  which  ran  down  into  navigable 
water,  merely,  however,  to  facilitate  the 
transfer  of  vessels  from  the  water  to 
the  shore,  the  structure  being  likened  by 
the  court  to  a  wharf  built  out  into  the 
stream. 

The  Professor  Morse,  23  Fed.  803. 

(5)  The  surface  part  of  borings  made  to 
locate  an  aqueduct  under  the  river  for  the 
municipal  purpose  of  supplying  water  to  a 
eity. 

The  Poughkeepsie,  162  Fed.  494,  affirmed 
in  212  U.  S.  558,  53  L.  ed.  651,  29  Sup.  a. 
Rep.  687. 

(6)  Temporary  platform  resting  on  the 
bottom  of  a  navigable  river  and  used  in 
drilling  or  boring  test  holes  in  the  work  of 
building  a  tunnel  or  bridge  (which  does  not 
clearly  appear)  for  a  transit  route  from 
New  York  city  to  Brooklyn. 

United  Engineering  &  Contracting  Co.  v. 
New  York,  N.  H.  &  H.  Tug  Transfer  No.  5, 
cited  in  The  Poughkeepsie,  162  Fed.  405. 

(7)  A  derick  consisting  of  an  upright,  the 
k>wer  extremity  of  which  rested  on  the  soil 
«S8 


of  a  shoal  in  Long  Island  sound,  and  in  use 
in  erecting  a  pier  for  a  lightiiouse  at  a 
place  which  was  not  in  navigable  water,  and 
had  in  fact  become  a  part  of  the  land  before 
the  pier  construction  was  begun;  the  injury 
to  the  derrick  being  caused  by  a  schooner 
striking  in  navigable  water  the  outer  end  of 
one  of  the  guy  lines  which  ran  from  the 
derrick  to  an  anchorage  in  the  soil  under 
navigable  water  off  the  shoal  or  land. 

The  Maud  Webster,  8  Ben.  547,  Fed.  Gas. 
No.  9,302. 

(8)  Goods  lost  in  navigable  waters 
through  being  thrown  from  a  wharf  as  a  re- 
sult of  the  collision  by  a  vessel  with  the 
wharf. 

The  Haxby,  95  Fed.  1.70. 

Hie  following  additional  cases  contain  in- 
structive discussions  of  the  rule  that  local- 
ity is  the  test  of  jurisdiction  in  tort: 

The  Belfast,  7  Wall.  624,  637,  19  L.  ed. 
266,  269;  Manro  v.  Almeida,  10  Wheat.  473, 
6  L.  ed.  369;  Waring  v.  Clarke,  5  How.  441, 
459,  12  L.  ed.  226,  235;  New  Jersey  Steam 
Nav.  Co.  y.  Merchants'  Bank,  6  How.  344, 
394,  12  L.  ed.  465,  487;  Ex  parte  Easton,  95 
U.  S.  68,  72,  24  L.  ed.  373,  374;  Leathers  v. 
Blessing,  105  U.  S.  626,  630,  26  L.  ed.  1192, 
1194 ;  Panama  R.  Co.  v.  Napier  Shipping  Co. 
166  U.  S.  280,  285,  41  L.  ed.  1004,  1005,  17 
Sup.  Ct  Rep.  572;  Martin  v.  West,  222 
U.  S.  191,  56  L.  ed.  159,  36  L.R.A.(N.S.) 
592,  32  Sup.  Ct.  Rep.  42;  Atlantic  Transport 
Co.  V.  Imbrovek,  234  U.  S.  52,  58  L.  ed.  1208, 
51  LJLA.(N.S.)  1157,  84  Sup.  Ct.  Rep.  733; 
Atlee  V,  Northwestern  Union  Packet  Co.  21 
Wall.  389,  22  L.  ed.  619;  The  Strabo,  90 
Fed.  110;  Hermann  v.  Port  Blakely  Mill  Co. 
69  Fed.  646;  The  H.  S.  Pickands,  42  Fed. 
239;  Etheridge  v.  Philadelphia,  26  Fed.  43; 
The  C.  Accame,  20  Fed.  642;  Leonard  v. 
Decker,  22  Fed.  741 ;  The  Florence,  2  Flipp. 
56,  Fed.  Cas.  No.  4,880;  Steele  v.  Thacher,  1 
Ware,  85,  Fed.  Cas.  No.  13,348. 

A  court  of  admiralty  having  rightfully 
taken  jurisdiction  of  the  damage  to  appel- 
lant's pile  driver  and  barge,  should  retain  it 
to  redress  the  entire  wrong  inflicted  by  the 
same  maritime  tort. 

The  St.  Lawrence  (Meyer  v.  Tupper)  1 
Black;  522,  527,  17  L.  ed.  180,  183;  New 
England  Mut.  M.  Ins.  Co.  v.  Dunham,  11 
Wall.  1,  22,  20  L.  ed.  90,  96;  Benedict,  Adm. 
3d  ed.  §§  329,  358;  1  Kent,  Com.  14th  ed. 
p.  379;  Toledo  S.  S.  Co.  v.  Zenith  Transp. 
Co.  106  C.  C.  A.  501,  184  Fed.  301;  The 
Juliana,  2  Dodson,  Adm.  503;  The  Harriett, 
1  W.  Rob.  183;  The  Virgin  v.  Vyfhius,  8 
Pet.  538,  549,  8  L.  ed.  1036,  1040;  American 
Ins.  Co.  V.  Johnson,  1  Blatchf.  &  H.  9,  Fed. 
Cas.  No.  303 ;  Dean  v.  Angus,  Bee,  360,  Fed. 
Cas.  No.  3,702 ;  The  J.  E.  Rumbell,  148  U.  S. 
1,  15,  37  L.  ed.  345,  348,  18  Sup.  Ct.  Rep. 
498;  Andrews  t.  Wall,  3  How.  568,  573,  11 

241  U.  8. 


1916.                      LATTA  k  T.  CONSTRUCTION  CO.  v.  RAITHMOOR.  172-174 

L.  ed.  729,  731;  The  Lottawanna  (Wilson  V.  admiralty  against  the  steamship  "Raith- 
Bell)  20  Wall.  201,  223,  22  L.  ed.  269,  263;  moor"  to  recover  damages  for  tort.  The 
The  Loltawanna  (Rodd  v.  Heartt)  21  Wall,  steamship,  coming  up  the  Delaware  river  on 
668,  682,  683,  22  L.  ed.  664,  664,  666;  The  the  evening  of  July  18,  1909,  collided  with 
Hamilton  (Old  Dominion  S.  S.  Co.  v.  Gil-  a  scow  and  pile  driver  belonging  to  the  ap- 
more)  207  U.  S.  398,  406,  62  L.  ed.  264,  270,  pellant,  and  also  with  a  structure  which  the 
28  Sup.  Ct.  Rep.  133;  M'Donough  v.  Dan-  appellant  was  erecting  for  the  United  States 
nery,  3  Dall.  188,  1  L.  ed.  663;  Waring  v.  to  serve  as  a  beacon,  and  with  a  temporary 
Clarke,  6  How.  441,  12  L.  ed.  226;  Erie  R.  platform  used  in  connection  with  the  work 
Co.  v.  Erie  &  W.  Transp.  Co.  204  U.  S.  of  construction.  For  the  injury  to  the  scow 
220,  61  L.  ed.  460,  27  Sup.  Ct.  Rep.  246;  and  pile  driver  a  decree  was  entered  in 
United  SUtes  v.  Cornell  S.  B.  Co.  202  U.  S.  favor  of  the  Ubellant.  But  the  district  court 
184,  60  L.  ed.  087,  26  Sup.  Ct.  Rep.  648;  [173]  held  that  there  was  no  jurisdiction  in 
The  Genesee  Chief  v.  Fitzhugh,  12  How.  443,  the  admiralty  of  the  claim  for  the  damage 
IS  L.  ed.  1058;  Schuchardt  v.  Babbidge,  19  to  the  structure  and  platform,  and  the  libel- 
How.  230,  16  L.  ed.  626;  The  John  E.  Mul-  lant  appeals.  The  Raithmoor,  186  Fed.  849. 
ford,  18  Fed.  456;  The  Mariska,  47  C.  C.  A.  The  district  court  thus  states  the  char- 
116,  107  Fed.  989;  Leland  v.  The  Medora,  2  acter  and  location  of  the  structure: 
Woodb.  &  M.  93,  Fed.  Cas.  No.  8,237.  "The    company"     (the    appellant)     "was 

-,       __            ««^          ^               jixL  executing  an  independent  contract  with  the 

.Z\      \  ^^^''^^   »'«^«d   ^^  United  SUtes,  which  bound  them  to  furnish 

cause  and  filed  a  bnef  for  appellee:  ^^^  necessary  materials,  labor,  plant,  etc.. 

The  purpose  for  which  a  thing  is  intended  ^^^  ^^  ^^^/.„     ,^^^  ^  foundation  pier  to 

does  not  fix  its  character,  as  far  as  admi-  ^^^.^^  ^          ^^^^^^     ^^  ^^^^  was  under 

ralty  jurisdiction  is  concerned.  ..  ^  «««♦««„« i  -„««^„j„;^«  «*  •  »^^»,.*..„^i> 

PeoDle's  Ferrv  Co   v   Beers   20  How  393  ^®  continual  supervision  of  a  government 

tfeol^\^f^  tmy  \jo.  y.  ii^T%,  IS}  tioyf.j}i6,  official,  but  had  neither  been  finished  nor 

JL    ,!  ;      V  ^TrZ'    T  v.P"S''V  .  ^''^'  accepted.     The  structure  was  to  consist  of 

^XIJ^'.  't.^tl  ^^^    f""  f;  ^^^o!in'  three   cylindrical   piles   of    reinforced   con- 

2d   97  Fed.  8.2;  The  Paradox  61  led   800;  ^^^^^  ^\^  ,„„^  ^^^^  1^^  ,^^^  .„^^  „^^  l^,. 

^^:'''"^^  ''^^^"''^^*^^  T^\l^l' ^\b  ^'  torn  of  the  river,  and  to  project   12   feet 

487;  The  William  Wmdom,  73  Fed   406.  ^^^^^  „^^„  ^^^  '^^^^^  these  to  be  covered 

An  in.  ury  to  a  structure  affixed  to  the  ^.^^  ^  ^^^  3^,  The  piles  were  to 
land,  and  wholly  or  partially  supported  by  ^  ^^^^^^  .„  ^^^^j  ^„^  ^  ^e  protected  also 
It,  18  not  capable  of  bemg  redressed  in  ad-  ^y  depositing  rip-rap  around  them  to  a 
""'^^ty*  specified  height.  When  completed,  the  pier 
The  Maud  Webster,  8  Ben.  647,  Fed.  Cas.  ^^g  to  be  used  solely  as  a  beacon  on  the 
No.  9,302;  The  Professor  Morse,  23  Fed.  edge  of  a  navigable  channel  that  has  not 
803;  The  Haxby,  94  Fed.  1016,  96  Fed.  170;  yet  been  made  ready,  and  the  government 
The  Plymouth  (Hough  v.  Western  Transp.  was  to  insUU  upon  the  cap  a  lamp  and 
Co.)  3  Wall.  20,  18  L.  ed.  126;  The  John  C.  other  appliances.  The  site  is  i  of  a  mile 
Sweeney,  G6  Fed.  640;  Martin  v.  West,  222  from  the  eastern  or  New  Jersey  shore,  and 
U.  S.  191,  66  L.  ed.  169,  36  L.R.A.(N,S.)  about  2  miles  from  the  western  or  Dela- 
592,  32  Sup.  Ct.  Rep.  42;  Johnson  v.  Chi-  ware  shore,  of  the  river,  and  is  surrounded 
cago  &  P.  Elevator  Co.  119  U.  S.  388,  30  by  navigable  water,  about  27  feet  deep  at 
L.  ed.  447,  7  Sup.  Ct.  Rep.  264;  Milwaukee  low  tide.  The  work  was  begun  in  June, 
V.  The  Curtis,  3  L.RA.  711,  37  Fed.  706.  and  at  the  time  of  the  collision  was  ap- 
Locality  is  not  the  sole  test  of  jurisdic-  proaching  completion.  The  piles  were  in 
tion  in  cases  of  tort.  place,  and  not  much  remained  to  be  done  ex- 
Cleveland  Terminal  &  V.  R.  Co.  v.  Cleve-  cept  to  put  the  metal  cap  into  place  and 
land  S.  S.  Co.  208  U.  S.  316,  62  L.  ed.  608,  deposit  the  rip-rap.  The  necessities  of  the 
28  Sup.  Ct.  Rep.  414,  13  Ann.  Cas.  126.  work  required  a  temporary  platform  to  be 
The  jurisdiction  of  the  Federal  courts  in  built  close  to  the  concrete  piles.  This  was 
admiralty  cases  is  given  by  the  Constitu-  of  wood,  about  16  feet  square,  and  rested 
tion.  Not  even  Congress  has  power  to  add  upon  wooden  piling  driven  into  the  bottom 
anything  to  it.  If  a  subject  is  not  within  of  the  river."  Id.  p.  860. 
this  class,  the  courts  can  take  no  cognizance  The  decisions  of  this  court  with  respect 


of  it,  whether  or  not  it  is  connected,  as  to 
time  and  place,  with  some  others  which  they 
clearly  have  power  to  adjudicate. 
The  at.  David,  209  Fed.  986. 

Mr.  Justice  Hughes  delivered  the  opin- 


to  the  jurisdiction  [174]  of  the  admiralty  in 
cases  of  tort  make  the  question  to  be  deter- 
mined a  very  narrow  one.  In  The  Plymouth 
(Hough  V.  Western  Transp.  Co.)  3  Wall.  20, 
36,  18  L.  ed.  126,  128,  it  was  broadly  de- 
clared that  ''the  whole,  or  at  least  the  sub- 


ion  of  the  court:  i  stantial,  cause  of  action,  arising  out  of  the 

The  appellant  filed  a  libel  m  rmn  in  the    wrong,  must  be  e<miplete  within  the  local- 

•0  Ja.  ed.  •S^ 


174-176 


SUPREBiE  COURT  OF  THE  UNITBD  STATES. 


Oct. 


itj  upon  whieh  the  jariBdiction  depends — 
on  the  high  aeas  or  the  navigable  waters." 
Accordingly  it  was  held  that  a  libel  for 
damage  to  a  wharf  and  storehouses,  caused 
bj  a  fire  started  on  a  vessel  through  negli- 
gence, was  beyond  the  limit  of  admiralty 
cognizance,  as  the  damage  was  wholly  done, 
and  the  wrong  was  thus  consummated,  upon 
the  land.  Upon  this  ground,  the  jurisdiction 
of  the  district  court  to  entertain  a  petition 
for  the  limitation  of  the  liability  of  the 
shipowner  in  such  a  case  was  denied  in  Ex 
parte  Phenix  Ins.  Co.  118  U.  S.  610,  SO  L. 
ed.  274,  7  Sup.  Ct.  Rep.  25.  The  principle 
was  restated  in  Johnson  v.  Chicago  A  P. 
Elevator  Co.  119  U.  S.  388,  397,  30  L.  ed. 
447,  7  Sup.  Ct.  Rep.  254.  And  see  Knapp 
S.  A  Co.  Co.  V.  McCaffrey,  177  U.  S.  638, 
643,  44  L.  ed.  921,  924,  20  Sup.  Ct.  Rep.  824; 
Homer  Ramsdell  Transp.  Co.  v.  La  Com- 
pagnie  Qfo^rale  Transatlantique,  182  U.  S. 
406,  411,  45  L.  ed.  1155,  1159,  21  Sup.  Ct. 
R^.  831.  But  in  The  Blackheath  (United 
States  V.  Evans)  195  U.  S.  361,  49  L.  ed. 
236,  25  Sup.  Ct.  Rep.  46,  a  distinction  was 
drawn,  and  the  jurisdiction  of  the  admiral- 
ty was  upheld  in  the  case  of  an  injury 
caused  by  a  vessel  in  n^ligently  running 
into  a  beacon  which  stood  15  or  20  feet 
from  the  channel  of  Mobile  river,  or  bay,  in 
water  12  or  15  feet  deep,  and  was  built  on 
piles  driven  firmly  into  the  bottom.  The 
court  pointed  out  the  essential  basis  of  the 
decision,  in  saying:  "It  is  enough  to  say 
that  we  now  are  dealing  with  an  injury  to 
a  government  aid  to  navigation  from  an- 
cient times  subject  to  the  admiralty, — a 
beacon  emerging  from  the  water,  injured  by 
the  motion  of  the  vessel,  by  a  continuous 
act  beginning  and  consummated  upon  navi- 
gable water,  and  giving  character  to  the 
effects  upon  a  point  which  is  only  technical- 
ly land,  through  a  connection  at  the  bottom 
of  the  sea."  ( Id.  p.  367. )  It  was  suggested  in 
the  concurring  opinion  of  Mr.  Justice  Brown 
(Id.  p.  368)  that  the  decision  [175]  prac- 
tically overruled  the  earlier  cases,  and  that 
it  recognized  the  principle  of  the  English 
statute  extending  the  jurisdiction  of  the  ad- 
miralty court  to  "any  claim  for  damages 
by  any  ship."  This  consequence,  however, 
was  exptessly  denied  in  Cleveland  Terminal 
A  Valley  R.  Co.  v.  Cleveland  S.  S.  Co.  208 
U.  S.  316,  320;  52  L.  ed.  508,  512,  28  Sup. 
Ct.  Rep.  414,  13  Ann.  Cas.  1215.  In  that 
case  it  was  decided  that  the  admiralty  did 
not  have  jurisdiction  of  a  claim  for  dam- 
ages caused  by  a  vessel  adrift,  through  its 
allied  fault,  to  the  center  pier  of  a  bridge 
spanning  a  navigable  river  and  to  a  shore 
abutment  and  dock.  Referring  to  The 
Blackheath,  and  drawing  the  distinction  we 
have  noted,  the  court  said:  "The  damage" 
(that  is,  in  The  Blackheath)  "was  to  prop- 
940 


erty  located  in  navigable  wators,  tokly  aa 
aid  to  navigation  and  maritime  in  nature^ 
and  having  no  other  purpose  or  function. 
.  .  .  But  the  bridges,  shore  docks,  protec- 
tion piling,  piers,  etc"  (of  the  Cleveland 
Terminal  Company)  "pertained  to  the  land. 
They  were  structures  connected  with  the 
shore  and'iounediately  concerned  commerce 
upon  land.  None  of  these  structures  were 
aids  to  navigation  in  the  maritime  sense, 
but  extensions  of  the  shore,  and  aids  to 
commerce  on  land  as  such."  The  decision 
in  The  Troy,  208  U.  S.  321,  52  L.  ed.  512, 
28  Sup.  Ct.  Rep.  416,  was  to  the  same  effect. 
The  steamer  Troy  had  collided  with  the  cen- 
ter pier  of  a  swinging  span  over  the  St. 
Louis  river,  a  navigable  stream,  and  the 
jurisdiction  of  the  admiralty  of  a  libel  for 
the  injury  waa  denied.  See  also  Phcenix 
Constr.  Co.  v.  The  Poughkeepsie,  212  U.  S. 
558,  53  L.  ed.  651,  29  Sup.  Ct.  Rep.  687; 
Martin  v.  West,  222  U.  S.  191,  197,  56  L. 
ed.  159,  162,  36  L.R.A.(N.S.)  592,  32  Sup. 
Ct.  Rep.  42. 

If,  then,  in  the  present  instance,  the 
metal  cap  of  the  beacon  had  been  in  place, 
the  rip-rap  deposited,  and  the  beacon  put 
into  actual  service,  the  case  would  fall 
exactly  within  the  ruling  of  The  Blackheath, 
and  the  admiralty  would  have  jurisdiction 
although  the  structure  was  attached  to  the 
bottom.  There  would  be  no  difference  in 
the  two  cases  which  would  afford  the  slightest 
ground  for  argument.  If,  on  the  other  hand, 
simply  because  of  the  [176]  incompleteness 
of  the  beacon,  it  is  to  be  exclusively  identi- 
fied with  the  land,  and  its  intended  purpose 
is  to  be  disregarded,  the  admiralty  would 
have  no  jurisdiction.  We  think  that  a  dis- 
tinction based  solely  on  the  fact  that  the 
beacon  was  not  fully  completed  would  be  a 
needless  refinement, — a  nicety  in  analysb 
not  required  by  reason  or  precedent.  We 
r^ard  the  location  and  purpose  of  the  struc- 
ture as  controlling  from  the  time  the  struc- 
ture was  begun.  It  was  not  being  built  on 
shore  and  awaiting  the  assumption  of  a 
maritime  relation.  It  was  in  course  of  con- 
struction in  navigable  waters,  that  is,  at  a 
place  where  the  jurisdiction  of  admiralty  in 
cases  of  tort  normally  attached, — at  least 
in  all  cases  where  the  wrong  was  of  a  mari- 
time character.  See  The  Plymouth,  supra; 
Atlantic  Transport  Co.  v.  Imbrovek,  234 
U.  S.  52,  58-61,  58  L.  ed.  1208,  1211,  1212, 
51  L.R.A.(K.S.)  1157,  34  Sup.  Ct.  Rep. 
733,  and  cases  there  cited.  The  relation  of 
the  structure  to  the  land  was  of  the  most 
technical  sort,  merely  through  the  attach- 
ment to  the  bottom;  it  had  no  connection, 
either  actual  or  anticipated,  with  commerce 
on  land.  It  was  simply  to  serve  as  an  aid 
to  navigation,  and  while  it  had  not  yet  bees 
finished  and  accepted,  it  was  being  erected 

241  V.  8. 


1915. 


CHICAGO,  B.  &  Q.  R.  CO.  v.  HARRINGTON. 


17«,  177 


under  the  constant  supervision  of  a  govern- 
inent  inspector  acting  under  the  authority 
of  the  United  States  in  the  improvement 
and  protection  of  navigation.  It  is  urged 
that  the  government  might  abandon  its 
plan;  but  there  has  been  no  abandonment. 
The  question  is  not  as  to  an  abandoned 
mass,  but  as  to  a  beacon  in  course  of  erec- 
tion. K\en  a  completed  beacon  might  be 
abandoned,  and  whatever  question  might 
arise  in  such  a  case  is  not  presented  here. 
Again,  an  analogy  is  suggested  to  the  case 
of  a  vessel  which  is  being  constructed  on 
flhore,  but  the  argument  falls  short,  as  it  is 
to  be  remembi*red  that  as  soon  as  a  vessel 
is  launched,  altliough  still  incomplete,  it  is 
•ubject  to  the  admiralty  jurisdiction.  Tuck- 
or  V.  Alexandroff,  183  U.  S.  424,  438,  46 
L.  ed.  2G4,  270,  22  Sup.  Ct.  Rep.  196.  This 
is  not  the  case  of  a  structure  which  at  any 
time  was  identified  with  the  shore,  but,  from 
the  beginning  [  177]  of  construction,  locality 
and  design  gave  it  a  distinctively  maritime 
relation.  When  completed  and  in  use,  its 
injury  by  a  colliding  ship  would  interfere,  or 
tend  to  interfere,  with  its  service  to  naviga- 
tion; and,  while  still  incomplete,  such  an 
injury  would  tend  to  postpone  that  service. 
We  know  of  no  substantial  reason  why  the 
jurisdiction  of  the  admiralty  should  be  sus- 
tained in  the  one  case  and  denied  in  the 
other. 

With  respect  to  the  temporary  platform, 
it  is  to  be  observed  that  this  was  a  mere 
incident  to  the  structure,  and  as  such  the 
jurisdiction  would  extend  to  the  claim  for 
the  damage  to  it. 

The  decree,  so  far  as  it  dismissed  the 
libel  for  want  of  jurisdiction,  is  reversed, 
and  the  cause  is  remanded  for  further  pro- 
ceeding^ in  conformity  with  this  opinion. 

It  is  80  ordered. 


CHICAGO,  BURLINGTON,  k  QUINCY 
RAILROAD  COMPANY,  Plff.  in  Err., 

V. 

MAROARET  HARRINGTON. 

(See  S.  C.  Reporter's  ed.  177-180.) 

Ma.etcr  and  servant  •»  employers*  lia- 
bility •»  wlicn  servant  is  engaged  in 
interstate  coinnicrce. 

A  member  of  a  railway  yard  switching 
orew  engaged  in  switching  loaded  goal  cars 
belonging  to  the  railway  company  from  a 
fltora;ze  track  to  a  coal  shed  or  chutes  was 
not  then  employed  in  interstate  commerce 

Note. — On  the  constitutionality,  applica- 
tion, and  effect  of  the  Federal  employers' 
liability  act — see  notes  to  Lamphere  v.  Ore- 
^n  R.  A  Nav.  Co.  47  L.R.A.(N.S.)  38;  and 
Seaboard  Air  Line  R.  Co.  v.  Horton,  i1R.A. 
19150,  47. 
40  li.  ed. 


within  the  meaning  of  the  Federal  em- 
ployers' liability  act  of  April  22,  1908  (35 
Stat,  at  L.  65,  chap.  149,  Comp.  Stat.  1913, 
§  8657),  although  the  coal  thus  placed  was 
to  be  used  by  locomotives  in  interstate 
hauls. 

[For  other  cases,  see  Master  and  Servant,  11., 
in  Digest  Sup.  Ct.  1908.] 

[No.  853.] 

Submitted  April  17,  1916.    Decided  May  1, 

1916. 

IN  ERROR  to  the  Kansas  City  Court  of 
Appeals  of  the  State  of  Missouri  to  re- 
view a  judgment  which  aflirmed  a  judgment 
of  the  Circuit  Court  of  Jackson  County,  in 
that  state,  in  favor  of  plaintiff  in  an  action 
against  a  railway  company  for  the  wrong- 
ful death  of  an  employee.    Aflirmed. 

See  same  case  below,  —  Mo.  App.  — ,  180 
S.  W.  443. 

The  facta  are  stated  in  the  opinion. 

Messrs.  O.  M.  Spencer,  William  War- 
ner, Oliver  H.  Dean,  and  U.  M.  Jjani;- 
worthy  submitted  the  cause  for  plaintiff 
in  error.  Mr.  William  D.  McLeod  was  on 
the  brief: 

The  deceased  was  engaged  and  employed 
in  interstate  commerce. 

Horton  v.  Oregon -Washington  R.  &  Nav. 
Co.  72  Wash.  503,  47  L.RJk.(N.S.)  8,  130 
Pac.  897;  Pedersen  v.  Delaware,  L.  &  W.  R. 
Co.  229  U.  S.  146,  153,  57  L.  ed.  1125,  1128, 
33  Sup.  Ct  Rep.  648,  Ann.  Cas.  19140,  153, 
3  N.  0.  O.  A.  779;  Kamboris  v.  Oregon- 
Washington  R.  A  Nav.  Co.  75  Or.  858,  146 
Pac  1097;  Barlow  ▼.  Lehigh  Valley  R.  Co. 
158  App.  Div.  768,  143  N.  Y.  Supp.  1053; 
Montgomery  v.  Southern  P.  Co.  64  Or.  597, 
47  L.R.A.(N.S.)  13, 131  Pac  507;  Cousins  t. 
Illinois  C.  R.  Co.  126  Minn.  172,  LHA,  — , 
— ,  148  N.  W.  58,  6  N.  C.  O.  A.  182;  Am- 
bruster  v.  Chicago,  R.  I.  A^  P.  R.  Co.  166 
Iowa,  155, 147  N.  W.  387 ;  Norfolk  St  W.  R. 
Co.  V.  Earnest,  229  U.  S.  114,  57  L.  ed.  1096, 
33  Sup.  Ct,  Rep.  654,  Ann.  Cas.  19140,  172; 
St.  Louis,  8.  F.  A^  T.  R.  Co.  v.  Seale,  229  U. 
S.  156,  57  L.  ed.  1129,  33  Sup.  Ct.  Rep.  651, 
Ann.  Cas.  1914C,  156;  North  Carolina  R.  Co. 
▼.  Zachary,  232  U.  S.  248,  58  L.  ed.  591,  34 
Sup.  Ct.  Rep.  305,  Ann.  Cas.  1914C,  159,  9 
N.  C.  C.  A.  109;  Northern  P.  R.  Co.  t. 
Maerkl,  117  C.  C.  A.  237,  198  Fed.  1;  Law 
V.  Illinois  C.  R.  Co.  L.R.A.  1916C,  17,  126 
C.  C.  A.  27,  208  Fed.  869;  Great  Northern 
R.  Co.  v.  Knapp,  240  U.  8.  464,  ante,  745,  36 
Sup.  Ct.  Rep.  399. 

Mr.  J.  G.  li.  Harrej  snbmitted  the  tanM% 
for  defendant  in  errors 

An  employee  engaged  in  switching  com* 
pany  coal  from  the  company's  storage  trade 
to  its  warehouse,  especiallj  whan  the  coal 

•41 


178-180 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tool, 


came  from  the  railway  company's  mine,  all 
within  the  state  of  Missouri,  is  not  engaged 
in  interstate  commerce  within  the  purview 
of  the  Federal  employers'  liability  act  of 
April  22,  1008,  and  amendments  thereto  of 
1910. 

Illinois  C.  R.  Co.  v.  Behrens,  233  U.  S. 
473,  58  L.  ed.  1051,  34  Sup.  Gt.  Rep.  646, 
Ann.  Cas.  1014O,  163;  Pedersen  v.  Delaware, 
L.  &  W.  R.  Co.  229  U.  S.  146,  57  L.  ed. 
1125,  33  Sup.  Ct.  Rep.  648;  Ann.  Cas.  1914C, 
153,  3  N.  C.  C.  A.  779;  Employers'  Liability 
Cases  (Howard  v.  Illinois  C.  R.  Co.)  207  U. 
S.  463,  52  L.  ed.  297,  28  Sup.  Ct.  Rep. 
141;  Second  Employers'  Liability  Cases 
(Mondou  V.  New  York,  N.  H.  &  H.  R.  Co.) 
223  U.  S.  1,  56  L.  ed.  327,  38  L.RA.(N.S.) 
44,  32  Sup.  Ct.  Rep.  169,  1  N.  C.  C.  A.  875; 
Delaware,  L.  &  W.  R.  Co.  v.  Yurkonis,  238 
U.  S.  439,  59  L.  ed.  1397,  35  Sup.  Ct.  Rep. 
902;  Shanks  t.  Delaware,  L.  &  W.  R.  Co. 
239  U.  S.  556,  ante,  430,  36  Sup.  Ct.  Rep. 
188. 

Mr.  Justice  Hughes  delivered  the  opinion 
of  the  court: 

Margaret  Harrington  brought  this  action 
to  recover  damages  for  the  death  of  her 
husband,  Patrick  Harrington,  a  switchman 
employed  by  the  plaintiff  in  error.  She  ob- 
tained judgment  under  the  state  law,  the 
plaintiff  in  error  contending  unsuccessfully 
that  the  decedent  was  engaged  in  inter- 
state commerce  and  that  the  case  was  gov- 
erned by  the  Federal  employers'  liability 
act  180  S.  W.  443.  The  state  court  said, 
in  its  statement  of  facts: 

"Defendant  owns  and  operates  a  system 
of  railroads  covering  this  and  a  number  of 
other  western  states  and  is  a  common  car- 
rier of  both  interstate  and  intrastate  traffic. 
Its  terminal  yards  at  Kansas  City  are  in 
Missouri  and  are  an  important  center  for 
the  handling  of  both  kinds  of  business  orig- 
inating upon  and  confined  to  defendant's 
lines,  as  well  as  for  the  interchange  of  busi- 
ness with  other  interstate  railroads.  Loco- 
motives and  cars  [179]  used  in  both  kinds 
of  traffic  are  received,  sent  out,  cared  for,  and 
repaired  in  the  yards.  The  switching  crew 
of  which  Harrington  was  a  member  did  not 
work  outside  of  this  state,  and  was  en- 
gaged, at  the  time  of  his  death,  in  switch- 
ing coal  belonging  to  defendant,  and  which 
had  been  standing  on  a  storage  track  for 
some  time,  to  the  coal  shed,  where  it  was 
to  be  placed  in  bins  or  chutes  and  supplied, 
as  needed,  to  locomotives  of  all  classes, 
some  of  which  were  engaged  or  about  to  be 
engaged  in  Interstate  and  others  in  intrastate 
traffic.  It  may  be  conceded,  as  argued  by 
defendant,  that  none  of  its  locomotives 
or  cars  was  set  apart  for  service  only  in 
intrastate  commerce.  Defendant  operated 
94g 


local  trains  from  Kansas  City  to  terminal 
points  in  this  state  which  carried  only 
intrastate  commerce,  but  tlie  locomotives 
and  cars  of  such  trains  were  subject  to  be 
diverted  to  other  trains  engaged  in  inter- 
state commerce." 

The  plaintiff  in  error  takes  exception  to 
the  statement  in  part,  asserting  that  there 
was  no  evidence  that  any  of  the  locomotives, 
which  were  supplied  with  fuel  from  the 
coal  chutes,  were  engaged  exclusively  in 
intrastate  commerce,  or  that  any  of  the 
defendant's  trains  witliin  the  state  were 
engaged  exclusively  in  that  commerce.  For 
tlie  present  purpose,  we  may  assume  the 
fact  to  be  as  stated  by  the  plaintiir  in  error, 
and  we  may  also  assume,  as  it  insists,  that 
there  was  no  evidence  that  the  coal  had 
been  brought  from  mines  within  the  state 
of  Missouri  or  from  mines  owned  by  the 
plaintiff  in  error.  With  the  movement  of 
the  coal  to  the  storage  tracks,  however, 
we  are  not  concerned;  that  movement  had 
long  sinco  ended,  as  it  is  admitted  that  the 
coal  was  owned  by  the  company,  and  *'had ' 
been  in  storage  in  its  storage  tracks  for  a 
week  or  more  prior  to  the  time  it  was  being 
switched  into  the  coal  chutes  on  the  morn- 
ing of  the  accident."  So,  also,  as  the  ques- 
tion is  with  respect  to  the  employment  of 
the  decedent  at  the  time  of  the  injury 
(Illinois  [180]  C.  R.  Co.  v.  Behrens,  233  U.  S. 
473,  478,  58  L.  ed.  1051, 1055, 34  Sup.  Ct.  Rep. 
646,  Ann.  Cas.  1914C,  163),  it  is  not  im- 
portant whether  he  had  previously  been  en- 
gaged in  interstate  commerce,  or  that  it 
was  contemplated  that  he  would  be  so  en- 
gaged after  his  immediate  duty  had  been 
performed.  That  duty  was  solely  in  con- 
nection with  the  removal  of  the  coal  from 
the  storage  tracks  to  tlie  coal  shed,  or 
chutes,  and  the  only  ground  for  invoking 
the  Federal  act  is  that  the  coal  thus  placed 
was  to  be  used  by  locomotives  in  interstate 
hauls. 

As  we  have  pointed  out,  the  Federal  act 
speaks  of  interstate  commerce  in  a  prac- 
tical sense  suited  to  the  occasion,  and  ''the 
true  test  of  employment  in  such  commerce 
in  the  sense  intended  is.  Was  the  employee 
at  the  time  of  the  injury  engaged  in  inter- 
state transportation,  or  in  work  so  closely 
related  to  it  as  to  be  practically  a  part  of 
it?"  Shanks  v.  Delaware,  L.  k  W.  R.  Co. 
239  U.  S.  556, 558,  ante,  436,  438,  36  Sup.  Ct. 
Rep.  188,  and  cases  there  cited.  Manifestly, 
there  was  no  such  close  or  direct  relation 
to  interstate  transportation  in  the  taking 
of  the  coal  to  the  coal  chutes.  Hi  is  was 
nothing  more  than  the  putting  of  the  coal 
supply  in  a  convenient  place  from  which 
it  could  be  taken  as  required  for  use.  It 
has  been  held  that  an  employee  of  the  car- 
rier, while  he  is  mining  ooal  in  the  earrier's 

941  V.  8. 


1910. 


KANSAS  CITY  S.  R.  CO.  v.  JONES. 


180,  181 


colliery,  intended  to  be  used  by  its  inter- 
state locomotives,  is  not  en^ged  in  inter- 
state commerce  witliin  the  meaning  of  the 
Federal  act  (Delaware,  L.  Sc  VV.  K.  Co.  v. 
Yurkouis,  238  U.  S.  431),  50  L.  ed.  1307,  30 
Sup.  Ct.'Rep.  160),  and  there  is  no  distinc- 
tion in  ])rinciple  between  the  two  cases.  In 
Great  Northern  R.  Co.  v.  Knapp,  240  U.  S. 
464,  ante,  745,  36  Sup.  Ct.  Rep.  300,  the 
question  whether  the  employee  was  engaged 
in  interstate  commerce  was  not  presented,  as 
the  application  of  the  Federal  statute  was 
conceded  in  the  state  court. 
Judgment  affirmed. 


[181]  KANSAS  CITY  SOUTHERN  RAIL- 
WAY  COMPANY,  Plff.  in  Err., 

V. 

MRS.  NORA  M.  JONES,  Administratrix  of 
the  Succession  of  T.  A.  Jones,  Deceased. 

(See  S.  C.  Reporter's  ed.  181-183.) 

Error  to  state  conrt  •»  prejudicial  er- 
ror •»  employers*  liability  —  exclud- 
ing evidence  of  contributory  negli- 
^nee. 

Reversible  error  is  committed  by  the 
highest  court  of  a  state  in  ruling  that  evi- 
dence of  contributory  negligence  in  an  ac- 
tion under  the  Federal  employers'  liability 
met  of  April  22,  1008  (35  SUt.  at  L.  65, 
chap.  140),  as  amended  by  the  act  of  April 
5,  1010  (36  SUt.  at  L.  201,  chap.  143,  Comp. 
Stat.  1013,  §  8662),  which  it  found  that  the 
trial  court  had  rejected  for  a  wron^  rea- 
son, viz,,  because  contributorv  negligence 
was  not  pleaded,  was  nevertheless  properly 
excluded  because  it  was  not  offered  for  the 
specific  purpose  of  mitigating  the  damages, 
where  there  was  no  settled  local  rule  re- 
quiring counsel,  without  inquiry  by  the 
court,  to  announce  in  advance  the  purpose 
for  which  evidence  is  tendered. 
[For  other  cases,  see  Appeal  snd  Brror,  5051- 
5065,  in  Digest  Sup.  Ct.  1008.J 

[Ko.  402.] 

Argued  April  3  and  4,  1016.    Decided  May 

1,  1016. 

IK  ERROR  to  the  Supreme  Court  of  the 
State  of  Louisiana  to  review  a  judgment 
which  affirmed  a  judgment  of  the  District 
Court  of  Caddo  Parish,  in  that  state,  in 
favor  of  plaintiff  in  an  action  under  the 

Note. — On  the  constitutionality,  applica- 
tion, and  effect  of  the  Federal  employers' 
liability  act — see  notes  to  Lamphere  v.  Ore- 
gon R.  k  Nav.  Co.  47  Ii.R.A.(Nj3.)  38;  and 
Seaboard  Air  Line  R.  Co.  v.  Horton,  L.R.A. 
1915C,  47. 

On  error  to  state  courts  in  cases  arising 
under  the  Federal  employers'  liability  act — 
see  note  to  Great  Northern  R.  Co.  T.  Knapp, 
ante,  745. 
•0  li.  ed. 


Federal  employers'  liability  act.  Reversed 
and  remanded  for  further  proceedings. 

See  same  case  below,  137  La.  178,  68  So. 
401. 

The  facts  are  stated  in  the  opinion. 

Mr.  8.  W.  Moore  argued  the  cause,  and, 
with  Messrs.  F.  H.  Moore  and  J.  D.  Wilkin- 
son, filed  a  brief  for  plaintiff  in  error: 

The  supreme  court  of  Louisiana  erro- 
neously held  that,  although  the  defendant 
had  the  right  to  offer  such  evidence  in  miti- 
gation of  damages,  such  evidence,  in  the 
present  case,  was  properly  excluded,  since 
the  defendant,  in  offering  the  evidence,  did 
not  expressly  restrict  it  to  that  specific 
purpose. 

38  Cyc.  1340;  Buckstaff  v.  Russell  A  Co. 
151  U.  S.  626,  638,  38  L.  ed.  202,  206,  14 
Sup.  Ct.  Rep.  448;  McAfee  v.  Crofford,  13 
How.  447,  456,  14  L.  ed.  217,  221 ;  People  ▼. 
Doyle,  21  Mich.  227;  State  v.  Farmer,  84 
Me.  440,  24  Atl.  085;  Pegg  v.  Warford,  7 
Md.  582,  607;  Wigmore,  £v.  §  13;  Clark  v. 
Hull,  184  Mass.  164,  68  N.  £.  60 ;  Ponder  v. 
Cheeves,  104  Ala.  307,  16  So.  145;  Farns- 
worth  V.  Nevada  Co.  42  C.  C.  A.  500, 102  Fed. 
578;  Mighell  v.  Stone,  175  111.  261,  51  N.  £. 
006;  Hubbard  t.  Allyn,  200  Msss.  166,  86  N. 
£.  356;  £mrich  v.  Union  Stock  Yard  Co.  86 
Md.  482,  38  Atl.  043;  Consolidated  Ice  Mach. 
Co.  V.  Keifer,  134  111.  481,  10  L.U.A.  606,  23 
Am.  St.  Rep.  688,  25  N.  £.  700;  Morris  v. 
Atlantic  Ave.  R.  Co.  116  N.  Y.  552,  22  N.  E. 
1007;  Hauff  v.  South  Dakota  C.  R.  Co.  34 
S.  D.  183,  147  N.  W.  086;  Birmingham  R. 
Light  St  P.  Co.  V.  Barrett,  170  Ala.  274,  60 
So.  262;  Coolidge  v.  Boston  £lev.  R.  Co.  214 
Mass.  668,  102  N.  £.  74;  Mitchell  v.  Har- 
oourt,  62  Iowa,  840,  17  N.  W.  581 ;  Calvert 
County  V.  Gantt,  78  Md.  286,  28  Atl.  101,  20 
Atl.  610;  Re  Potter,  161  N.  Y.  84,  56  N.  £. 
387;  Gunn  v.  Ohio  River  R.  Co.  36  W.  Va. 
165,  32  Am.  St.  Rep.  842,  14  S.  £.  405; 
Guertin  v.  Hvdson,  71  N.  H.  505,  53  Atl. 
736;  Bell  T.  Missouri,  K.  &  T.  R.  Co.  36 
Tex.  Civ.  App.  560,  82  S.  W.  1073;  Shumard 
v.  Johnson,  66  Tex.  70, 17  S.  W.  308;  Boddy 
v.  Henry,  126  Iowa,  31,  101  N.  W.  447; 
Aughey  v.  Windrem,  137  Iowa,  315,  114 
N.  W.  1047;  Union  Sav.  Asso.  v.  £dwards, 
47  Mo.  446;  Ft.  Worth  A  D.  C.  R.  Co.  v. 
Harlan,  —  Tex.  Civ.  App.  — ,  62  S.  W.  071; 
Appleton  Mill  Co.  ▼.  Warder,  42  Minn.  117, 
43  N.  W.  701;  Kerbaugh  t.  Caldwell,  80 
C.  C.  A.  470, 151  Fed.  105, 10  Ann.  Cas.  453; 
OX^onnell  v.  Cox,  170  Mass.  250,  60  N.  E. 
580;  Bode  t.  Lee,  102  OaL  583,  36  Pac'  036; 
Fidelity  A  D.  Co.  v.  NUbet,  110  Ga.  316,  46 
S.  B.  444;  Illinois  Steel  Co.  ▼.  Paczocha,  130 
jWis.  28,  119  N.  W.  550;  Smith  t.  Smith, 
1 106  Ind.  43,  6  N.  E.  411;  Keesling  v.  Doyle, 
8  Ind.  App.  43,  35  N.  E.  126;  Chicago  A,  N. 
*  W.  R.  Co.  T.  De  Clow,  61  a  a  A.  34,  124 

•4S 


181 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oor.  Tknc, 


Fed.  143,  14  Am.  Neg.  Rep.  678;  ReBurree- 
tion  Gold  Min.  Co.  v.  Fortune  Gold  Min.  Co. 
64  C.  C.  A.  180,  120  Fed.  677;  Stanley  v. 
Beckham,  82  C.  C.  A.  304,  153  Fed.  165; 
Prettyman  v.  United  States,  103  C.  C.  A. 
384,  180  Fed.  88;  Himrod  t.  Ft.  Pitt  Min. 
^  Mill.  Co.  121  C.  C.  A.  186,  202  Fed.  724; 
Fortunich  v.  New  Orleans,  14  La.  Ann.  115; 
Thompson  v.  Chauveau,  6  Mart.  N.  S.  462; 
Casper  t.  Prosdame^  46  La.  Ann.  36,  14  So. 
817. 

Since  the  rulings  complained  of  by  de- 
fendant were  rulings  concerning  questions 
of  law,  including  the  question  as  to  the 
legal  effect  of  the  evidence  as  to  contribu- 
tory  negligence,  and  were  with  direct  refer- 
ence to  the  denial  to  defendant  of  a  right  or 
immunity  claimed  under  the  Federal  em- 
ployers' liability  act,  they  constitute  Fed- 
oral  questions  reviewable  by  this  court. 

Chapman  &  D.  I^nd  Co.  t.  Bigelow,  206 
U.  S.  41,  51  L.  ed.  053,  27  Sup.  Ct.  Rep.  670 ; 
SUnley  t.  Schwalby,  162  U.  S.  255,  278,  40 
L.  ed.  060,  068,  16  Sup.  Ct.  Rep.  754;  Kan- 
sas City  Southern  R.  Co.  v.  G.  H.  Albers 
Commission  Co.  223  U.  S.  501,  56  L.  ed.  565, 
82  Sup.  Ct.  Rep.  316;  kft.  Louis,  L  M.  k 
S.  R.  Co.  V.  McWhirter,  220  U.  S.  265,  57  L, 
ed.  1170,  33  Sup.  Ct  Rep.  858;  Norfolk 
Southern  R.  Co.  v.  Ferebee,  238  U.  S.  260, 
60  L.  ed.  1303,  35  Sup.  Ct.  Rep.  781. 

Mr.  Leon  R.  Smith  argued  the  cause, 
and,  with  Messrs.  Newton  C.  Blancliard  and 
Otis  W.  Bullock,  filed  a  brief  for  defendant 
in  error: 

When  the  offer  of  testimony  includes  that 
which  is  admissible  with  that  which  is  not, 
and  the  competent  and  incompetent  are 
blended  together,  it  is  not  the  duty  of  the 
court  to  separate  the  legal  from  the  illegal, 
but  the  whole  may  be  rejected  when  objec- 
tion is  made. 

5  Jones,  £t.  §  804,  p.  377;  Farleigh  t. 
Kelley,  28  Mont.  421,  63  L.RJ[.  310,  72  Pac. 
756;  Vurpillat  v.  Zehner,  2  Ind.  307,  28 
N.  £.  556;  St.  Louis,  L  M.  A^  S.  R.  Co.  v. 
Hendricks,  48  Ark.  177,  3  Am.  St.  Rep.  220, 
2  S.  W.  783,  8  Am.  Neg.  Cas.  37 ;  Shewalter 
T.  Bergman,  123  Ind.  155,  23  N.  £.  686; 
Cole  V.  Horton,  —  Tex.  Civ.  App.  — ,  61 
S.  W.  503;  First  Nat.  Bank  t.  North,  2 
S.  D.  480,  51  N.  W.  06;  Over  v.  SchifBing, 
102  Ind.  101,  26  N.  E.  01. 

Averments  of  a  Federal  question  to  give 
jurisdiction  to  this  court  to  review  a  state 
judgment  must  be  so  distinct  and  positive 
as  to  place  it  beyond  question  that  the 
party  bringing  the  case  here  from  the  state 
court  intended  to  assert  a  Federal  right. 

Mutual  L.  Ins.  Co.  v.  McGrew,  188  U.  S. 
308,  47  L.  ed.  484,  63  L.RA.  33,  23  Sup.  Ct. 
Rep.  375;  Loeb  v.  Columbia  Twp.  170  U.  S. 
472,  45  L.  ed.  280,  21  Sup.  Ct  Rep.  174: 
944 


F.  G.  Oxley  Stave  Co.  t.  Butler  Ckmnty, 
166  U.  S.  648,  41  L.  ed.  1140,  17  Sup.  Ct 
Rep.  700;  Michigan  Sugar  Co.  ▼.  Michigan 
(Michigan  Sugar  Co.  ▼.  Dix)  186  U.  8.  112, 
46  L.  ed.  820,  22  Sup.  Ct  Rep.  581;  atixens* 
Sav.  Bank  v.  Owensboro,  173  U.  S.  636,  43 
L.  ed.  840,  10  Sup.  Ct  Rep.  6S0,  671;  Sea- 
board Air  Line  R.  Co.  v.  Duvall,  225  U.  & 
477,  488,  56  L.  ed.  1171,  1176,  82  Sup.  Ct 
Rep.  700;  Benson  v.  United  States,  146 
U.  S.  325,  36  L.  ed.  001, 18  Sup.  Ct  Rep.  60; 
Jacobi  V.  AUbama,  187  U.  &  133,  47  L.  ed. 
106,  23  Sup.  Ct  Rep.  48. 

It  is  essential  that  the  record  should  dis- 
close not  only  that  the  alleged  right,  priv- 
ilege, or  immunity  was  specially  set  up  and 
claimed  in  the  court  below,  but  that  the  de- 
cision of  that  court  was  against  the  right  so 
set  up  or  claimed. 

Clark  T.  Pennsylvania,  128  U.  8.  805,  32 
L.  ed.  487,  0  Sup.  Ct  Rep.  113. 

It  is  not  error  to  exclude  evidence,  ad- 
missible for  one  purpose,  when  offered  for 
another  specific  purpose  for  which  it  Is  in- 
admissible. 

Jeflfersonville,  M.  d^  I.  R.  Co.  v.  Riley,  30 
Ind.  568;  Hart  v.  Brierley,  180  Mass.  508, 
76  N.  E.  286;  Hamberg  v.  St  Paul,  F.AU, 
Ins.  Co.  68  Minn.  335,  71  N.  W.  388;  Howard 
V.  Vaughan-Monning  Shoe  Co.  82  Mo.  App. 
405;  Root  v.  Monroeville,  16  Ohio  C  G.  617, 
4  Ohio  C.  D.  53;  Stickney  v.  Hughes,  12 
Wyo.  307,  75  Pao.  046,  13  Wyo.  257,  79 
Pac.  022. 

Generally,  in  order  to  predicate  error  on 
the  overruling  of  an  objection  to  testimony, 
specific  ground  of  objection  must  have  been 
brouglit  to  the  attention  of  the  trial  court 
prior  to  the  ruling.  But,  where  a  general 
objection  to  evidence  is  sustained,  the 
party  against  whom  the  ruling  was  made 
cannot  urge  as  a  ground  of  reversal  that  the 
objection  was  not  specific 

Hurlbut  V.  Hall,  30  Neb.  880,  58  N.  W. 
538;  International  Harvester  Co.  v.  Mc- 
Keever,  21  S.  D.  01,  100  N.  W.  642. 

WHiile  the  trial  court  was  not  bound  to 
seek  grounds  for  excluding  evidence  upon 
a  general  objection  thereto,  if  it  did  so,  and 
found  a  valid  objection,  the  person  offering 
it  cannot  complain. 

Adams  v.  Southern  R.  Co.  166  Ala.  440, 
51  So.  087. 

If  the  exclusion  of  certain  evidence  is 
proper  on  any  ground,  the  cause  will  not  be 
reversed  because  the  objection  to  it  was  not 
sufficiently  definite,  unless  the  objection 
not  urged  might  have  been  obviated. 

Spottiswood  V.  Weir,  80  CaL  448,  22  Pac 
280. 

Mr.  Justice  McReynolda  delivered  the 
opinion  of  the  court: 
Claiming  under   the  Federal   employers' 

S41  V.  8. 


1915. 


HARYLAND  DREDGING  k  C.  00.  v.  UNITED  STATES. 


181-184 


liability  act  (chap.  140,  36  Stat,  at  L.  65,  |  death,  the  fact  that  the  employee  may  have 
ehap.  143, 36  Stat,  at  L.  291,  Comp.  Stat.  1013,    been  guilty  of  contributory  negligence  shall 


9  8662),  [188]  defendant  in  error  brought 
this  suit  in  a  state  court  against  the  rail- 
road company  to  recover  damages  resulting 
from  her  husband's  death  by  accident  while 
employed  as  engineer  on  a  passenger  train. 
A  loaded  car,  having  escaped  from  the 
•witching  crew,  ran  down  a  long  grade, 
struck  his  engine  with  great  violence  as  it 
was  rounding  a  curve  near  the  Shreveport 
yard,  and  killed  him. 

The  company  denied  negligence  on  its 
part,  but  interposed  no  plea  setting  up  the 
<lefense  of  contributory  negligence.  A  jury 
found  for  the  administratrix,  and  judgment 
thereon  was  affirmed  by  the  supreme  court 
of  the  state. 

During  cross-examination  of  the  fireman, 
«oun8el  attempted  to  show  that  the  engineer 
was  negligent  in  not  having  his  train  under 
proper  control.  The  court  sustained  an  ob- 
jection "to  any  evidence  as  to  contributory 
negligence  as  same  is  not  pleaded."  Proper 
exception  was  taken  and  duly  noted.  There- 
upon, the  record  recites,  "counsel  for  plain- 
tiff asks  that  this  objection  and  ruling  and 
bill  of  exceptions  be  made  general  to  apply 
to  all  such  evidence  and  it  is  so  ordered." 
Upon  rebcaring  the  supreme  court  held  evi- 
<]cnce  of  contributory  negligence,  though  not 
pleaded,  and  inadmissible  to  defeat  a  re- 
covery, should  have  been  received  in  miti- 
gation of  damages  if  offered  for  that  spe- 
cific purpose.  But  it  said  the  evidence  in 
<{ue8lion  was  properly  excluded  because  ten- 
dered without  restriction. 

We  have  been  cited  to  no  authority  show- 
ing a  settled  local  rule  requiring  counsel, 
without  inquiry  by  the  court,  to  announce 
in  advance  the  purpose  for  which  evidence 
is  tendered.  Earlier  cases  in  Louisiana  lend 
support  to  the  contrary  and  commonly  ap- 
proved practice.  Thompson  v.  Chauveau,  6 
Mart.  N.  S.  458,  461;  Hitchcock  v.  North, 
5  Bob.  (La.)  328,  329.  39  Am.  Dec.  540; 
Fortunich  v.  New  Orleans,  14  La.  Ann.  115; 
Caspar  v.  Prosdame,  46  La.  Ann.  36,  14 
So.  317.  See  McAfee  v.  Crofford,  13  How. 
447,  456,  14  L.  ed.  217,  221;  Buckstaff  v. 
Russell  k  Co.  151  U.  S.  626,  636,  38  L.  ed. 
292,  296,  14  Sup.  Ct.  Rep.  448;  Famsworth 
▼.  Nevada  Co.  42  C.  C.  A.  500,  102  [183] 
Fed.  578,  580;  Hubbard  v.  Allyn,  200  Mass. 
166, 171,  86  N.  E.  356;  Mighell  v.  Stone,  175 
ni.  261,  262,  51  N.  E.  906. 

It  is  declared  by  the  act  of  Congress 
upon  which  the  suit  is  based: — 

"Sec.  3.  That  in  all  actions  hereafter 
brought  against  any  such  common  carrier 
by  railroad  under  or  by  virtue  of  any  of 
the  provisions  of  this  act  to  recover  dam- 


not  bar  a  recovery,  but  the  damages  shall 
be  diminished  by  the  jury  in  proportion  to 
the  amount  of  negligence  attributable  to 
such  employee.    •    •    ." 

Manifestly,  under  this  provision,  a  de- 
fendant carrier  has  the  Federal  right  to  a 
fair  opportunity  to  show  in  diminution  of 
damages  any  negligence  attributable  to  the 
employee. 

The  state  supreme  court  upheld  the  rail- 
way company's  claim  of  right  to  show  con- 
tributory negligence  under  its  general 
denial;  but  the  trial  court  emphatically 
denied  this  and  positively  excluded  all  evi- 
dence to  that  end.  As,  under  the  Federal 
statute,  contributory  negligence  is  no  bar  to 
recovery,  the  plain  purpose  in  offering  the 
excluded  evidence  was  to  mitigate  damages. 
In  such  circumstances  it  was  unnecessary 
to  go  through  the  idle  form  of  articulating 
the  obvious.  If  timely  objection  upon  the 
ground  ultimately  suggested  by  the  supreme 
court  had  been  sustained,  it  could  have  been 
easily  obviated;  but  counsel  had  no  reason 
to  anticipate  such  a  ruling,  and  certainly, 
we  think,  were  not  required  to  do  so  at 
their  peril. 

Plaintiff  in  error  has  been  improperly  de- 
prived of  a  Federal  right.  The  judgment 
below  is  accordingly  reversed  and  the  cause 
remanded  for  further  proceedings  not  incon- 
sistent with  this  opinion* 

Reversed. 


[184]   MARYLAND  DREDGING  k  OON- 
TRACTING  COMPANY,  Appt, 

V. 

UNITED  STATES. 

(See  S.  0.  Reporter's  ed.  184-190.) 

Public  contracts  —  delay  in  completing 
—  liquidated  damages  —  unforeseen 
condition  —  extension  of  time. 

The  encountering  of  the  stumps  and 
roots  of  a  submerged  forest  in  excavating  a 
channel  for  the  United  States  does  not  re- 
lieve the  contractor  from  liability  under  his 
contract  to  ,pay  the  stipulated  liquidated 
damages  and  the  additional  cost  of  super- 
vision and  inspection  In  case  the  work 
is  not  finished  in  time,  where  the  Chief 
Engineer  refused  to  sanction  any  extension 
of  time,  and  the  contract,  which  makes 
time  of  ita  essence,  provides  that  if  com- 
pletion is  delayed  by  strikes,  epidemics, 
qusrantine  restrictions,  or  by  the  "abnormal 
force  or  violence  of  the  elements,"  addi- 
tional time  may,  with  the  sanction  of  the 
Chief  Engineer,  be  allowed,  the  specifica- 
,  .   .     .      ,  ^®'  ,^*™'    tions  further  stating  that  the  time  aUowed 

Ages  for  personal  injuries  to  an  employee,  |  ig   considered   sufficient   ''unless  extraordi- 
or  where  such  injuries  have  resulted  in  his  nary   and   unforeseeable   conditions   super- 
•0  li.  ed.  60  94ft 


SUPREME  COURT  OF  THE  UNITED  STATES.  Oor.  Tknc^ 

Tsne,**  and  warning  each  bidder  to  examine  naed.  thera  ean  be  no  doubt  bat  that  the 

and  decide  for  himself  the  character  of  the  contractor,   upon   the   principle   announced 

material  to  be  excavated,  at  no  allowance  |>y   the   following  authoritiea,  would  have 

will  be  made  except  for  the  removal  of  auch  ^ee^  ^titled  to  an  extension  of  time  on 

'"'d''"*m     *t      avef"                       boulders,  ^^^^^    ^^    encountering    this    submerged 

[Por'^n.e?%.S«r8ie  United  Sutes,  VI.  e.  forest  at  the  point  and  under  the  oondi- 

la  Digest  Sup.  Ct.  1908.]  tions  alleged  in  the  amended  petition. 

Williams  ▼.  Grant,  1  Conn.  487,  7  Am. 

[No.  310.]  D^   285;  Bullock  ▼.  White  Star  8.  S.  Co. 

.    .     „   «.    ,**,-      ^    .J  ^   w       o  30  Wash.  448,  70  Pac  1106;  1  Words  A 

Argued  April  25,   1915.     Decided  May  8,  p|j„^g^  jjg 

^^^^'  When   Captain   Brown,   the  engineer  hi 

A  »««:.«▼    #         At.     /^    -A     tf  /^  1        A  charge,   once   reached  the   oonelusion   that 

PPEAL  from  the  Court  of  Claims  to  ^^^  ^eountering  of  the  mbmergad  forest 

review    a   judgment   dismissing,    upon  ^^^.^,^  appellant  to  an  extwaioiof  time, 

fryru'L^r.     ''".          ^  '^T^'^  .    "?  ^  decision  wa..bindi«g  upon  the  gOTem. 

the  United  SUtc.  of  a  part  of  Uie  contract  ^^^  ^^  ^^,^  ^^  the^tfter  decide 

price   of   a   public   improvement,   withheld  ^^.^  .^^^^j^,            .^„  otherwise, 

beaiuse  of  delay  in  completion.    Affirmed.  ^^^^^  g^^  ^   ^^             ^^^  ^   g 

See  same  case  below,  49  Ct  CI.  710.  44  L.  ed.  284.  20  Sup.  Ct.  Rap.  228;  Kihl- 

The  facU  are  stated  in  the  opinion.  ^^^  ^   ^nit^i  Statei,  97  U.  S.  898,  24  L 

Mr.  C.  C.  Calhoun  argued  the  cause,  and,  ed.  1106;  United  Statea  ▼.  Barlow,  184  U. 

with  Messrs.  D.  B.  Henderson  and  J.  Bar-  S.  123,  46  L.  ed.  463,  22  Sup.  Ct.  Rep.  468; 

rett  Carter,  filed  a  brief  for  appellant:  Chicago,  S.  F.  A  C.  R.  Co.  ▼.  Priea,  138  U.  6. 

llie  word  ''such,"  as  here  used,  meant  of  187,  34  L.  ed.  917,  11  Sup.  Ct.  Rep.  290. 

like  kind  or  character  in  regard  to  the  diffi-  The  construction  which  tha  parses  them* 

eulty  in  handling  or  the  cost  of  removing,  selves  have  placed  upon  the  oontimct  ahould 

and   was   used    to    protect   the   contractor  control. 

against  just  such  hardship  aa  was  encoun-  District  of  Columbia  ▼.  GaUaher,  124  U. 

tared.  S.  505,  31  L.  ed.  526,  8  Sup.  Ct  fiiep.  585; 

Com.   T.   Miller,   3    Cush.   243;    Ventura  Garrison  ▼.  United  States,  7  Wall.  688,  19 

County  ▼.  Clay,  112  Cal.  65,  44  Pac.  488;  L.  ed.  277;  United  Statea  t.  Gibbons,  109 

Ogden   ▼.  Glidden,  9   Wis.  46;    Travers  y.  U.  S.  200,  27  L.  ed.  906,  8  Sup.  Ct.  Rep. 

Wallace,  93  Md.  507,  49  Atl.  415.  II7. 

The  use  of  the  terms  "abnormal  force  or  A  sum  stipulated  to  be  paid  aa  liquidated 

violence  of  the  elements*'  clearly  indicates  damagea  on  the  breach  of  an  agreement, 

the  purpose  of  the  government  to  give  re-  where    no   actual    damage   reanlted   there- 

lief  to  the  contractor  in  the  event  it  encoun-  from,  constitutes  a  penalty,  although  there 

tered   any    '^extraordinary   and    un foresee-  waa  no  ambiguity  or  obacurity  in  the  words 

able"  obstruction  furnished  by  nature.  or  language  employed. 

Baily  v.  De  Crespigny,  L.  R.  4  Q.  B.  180.  1  Sedgw.  Damages,  9th  ed.  p.  779;  Tay- 

88  L.  J.  Q.  B.  N.  S.  98,  19  L.  T.  N.  S.  681,  loe  ▼.  Sandiford,  7  Wheat.  18,  5  L.  ed.  384; 

17  Week.  Rep.  494,  15  Eng.  Rul.  Cas.  799;  Van  Buren  t.  Diggea,  11  How.  461,  13  L. 

Stewart  ▼.  Stone,  127  N.  Y.  500,  14  LuRJL.  ed.  771. 

^^^u^  u'  ^*  ^^^\  i    A  i    .^uu  K  «#  fi^a  Assistant  Attorney   General   ThompaoD 

The  phrases  contained  in  article  5  of  the  ...                    j  iii  j^  v.:  #  #  5T« 

contract,  "by  abnormal  force  and  violence  *'8;"^  ^^  ^"^  ^^  ^^^  *  ^'^«'  '^'  •?' 

of  the  elements,"  and  in  §  16  of  the  specifi-  ^\,:                 ,.-.     ...  .     v^«^„  .    ,.^* 

..         «     1           A        1- ^  A  ..«#^.«  Unforeseen    difficulties,    however    great, 

cations,  "unless  extraordmary  and  unforer  .„       ,                ,  .,        1    ^    t              ^« 

«eable  condition,  superven. »  .re  equiva-  ^'"  "»»  «"»"*  ^••»""  ^  P^^"™  •  «"• 

lent  to  and  .hould  be  giv«,  the  •»«"«  »>«»»;  '^"a^negie  Steel  Co.  t.  United  Stote..  S«> 

ing,   force,   and   effect  as   the   well-known  7*                                     -^    oT^o^o. 

phrase  "a^t  of  God,"  used  in  contracts,  as  ^'  ^'    f «'  ^^'  ^^^   36  Sup   Ct.  Rep.  342 

dearly  appears  from  the  following:  I^^o*^7•/''!^7WJ•  q^'^'I^-  .•    *^ 

Packard^.  Taylor,  30  Ark.  402,  37  Am.  1»  7,  8,  17  L.  ed.  762,  764;  Sun  Printing  A 

Rep.  37;  Polack  v.  Pioche,  35  Cal.  416,  96  Pub.  Asso.  v.  Moore,  183  U.  S.  642,  46  L. 

Am.  Dec.  115;  Sprowl  v.  KelUr.  4  Stew.  A  ed.  36O,  22  Sup.  Ct.  Rep.  240;  The  Ham- 

P.    (Ala.)    382;    New    Brunswick    S.   B.    A  man,  9  WalL  161,  19  L.  ed.  629. 
Canal  Transp.  Co.  ▼.  Tiers,  24  N.  J.  L.  714, 1     The  case  of  the  United  Statea  v.  Bethk- 

64  Am.  Dec.  394;  1  Cyc  768;  1  Words  A  hem  Steel  Co.  205  U.  S.  105,  119,  51  L.  eA 


Phrases,  118. 

If  this  equivalent  phrase,  "act  of  God," 
had  been  used  in  the  contract  and  speci 


731,  736,  27  Sup.  Ct.  Rep.  450,  is  conclu- 
sive of  the  right  of  the  government  t9 
charge  liquidated  damagea  without  a  show- 


fications,  instead  of  the  phrases  which  were   ing  of  actual  damages  in  the  premiaea. 
94e  S41  U.  8* 


1915. 


MARYLAKD  DREDOINQ  4  a  00.  t.  UNirifiD  8TATB& 


189-188 


[186]  Mr.  Justioe  Holmes  deliyered  the 
opinion  of  the  court: 

This  it  an  appeal  from  a  judgment  of 
the  court  of  elaimt  dismissing  the  claim- 
ant's petition  upon  demurrer.  On  August 
15,  1908,  the  claimant  made  a  contract 
with  Captain  Brown  of  the  Engineers,  act- 
ing for  the  United  States,  to  excavate  a 
channel  from  Beaufort  inlet  to  Pamlico 
sound,  through  Core  and  Adams  creeks,  in 
conformity  with  specifications  made  part 
of  the  contract.  It  was  approved  on  Sep- 
tember 10,  and  required  the  work  to  be 
begtm  within  forty-five  days  after  date  of 
notification  of  approval,  September  14,  and 
to  Be  completed  within  eighteen  months. 
The  work  not  having  been  finished  on  time, 
$7,320  of  the  agreed  compensation  was  with- 
held as  liquidated  damages,  and  $210.50 
as  additional  costs  of  superintendoioe  and 
inspection,  $7,530.50  in  all,  for  which  sum 
this  suit  is  brought. 

The  petition  alleges  that  after  getting 
through  Core  creek  to  and  through  the  head- 
waters of  Adams  creek  to  a  point  on  tide 
water  about  5  miles  from  its  mouth,  where 
for  a  mile  and  a  half  it  averages  more  than 
1,200  feet  wide,  and  for  the  next  3  miles 
and  a  half  2,500  feet,  the  stumps  and  roots 
of  a  submerged  forest  were  encountered  at 
about  8  feet  below  the  bottom  of  the  water, 
which  made  it  impossible  to  do  the  work 
with  the  ordinary  machinery  and  in  the 
ordinary  way,  or  to  finish  the  work  by  the 
time  a;^eed.  It  is  alleged  that  the  forest 
was  submerged  by  some  abnormal  force  and 
violence  of  the  elements,  and  that  it  could 
not  have  been  discovered  by  the  ordinary 
methods  of  inspection,  and  was  not  discov- 
ered in  fact,  although  the  claimant  and 
otliers  and  the  government  had  exercised 
every  known  precaution,  and  had  made  ex- 
haustive examinations  with  the  utmost  care 
and  skill.  Tlie  petition  sets  up  that  this 
was  a  prevention  "by  abnormal  force  and 
violence  of  the  elements"  within  [187]  the 
contract,  and  that  the  claimant  also  was  en- 
titled to  an  allowance  of  time  under  a  clause 
in  the  specifications  stating  that  the  time 
is  considered  sufficient  "unless  extraordi- 
nary and  unforeseeable  conditions  super- 
vene." It  also  sets  up  that  an  extension 
of  time  was  recommended  by  Captain 
Brown,  although  disallowed  by  the  Chief 
Engineer.  Finally  the  petition  alleges  that 
it  was  known  by  the  gfovemment  oflScials 
when  the  contract  was  made  that  the  por- 
tion of  the  canal  excavated  by  the  claimant 
could  not  be  used  to  any  practical  extent 
for  commercial  purposes  until  adjoining 
portions  of  a  proposed  line  were  completed, 
and  that  the  additional  work  was  not  pro- 
vided for  or  seriously  contemplated  within 
the  time  (^  the  claimant's  work.  It  is  con- 
60  L.  ed. 


eluded  that  although  the  eontraet  purports 
to  provide  for  liquidated  damages,  fixed  at 
$20  a  day,  jet,  in  the  circumstance§,  it 
really  imposed  a  penalty,  and  that  the 
government  haa  no  right  to  retain  the  sum. 

As  haa  been  implied  already,  the  contract 
agreed  "that  time  shall  be  considered  as  an 
essential  feature  of  this  contract,  and  that 
in  case  of  the  failure  upon  the  part  of  the 
party  of  the  second  part  to  complete  this 
contract  within  the  time  as  specified  and 
agreed  upon  that  the  party  of  the  first  part 
will  be  damaged  thereby,  and  the  amount 
of  said  damages  being  difficult,  ft  not  im- 
possible of  definite  ascertainment  and  proof, 
it  is  hereby  agreed  that  the  amount  of  said 
damages  shall  be  estimated,  agreed  upon, 
liquidated,  and  fixed  in  advance,  and  they 
ara  here^  agreed  upon,  liquidated,  and 
fixed  at  the  sum  of  twenty  f20)  dollars  for 
eaeh  division  for  each  and  every  day  the 
party  of  the  second  part  shall  delay  in  the 
completion  of  this  contract,"  and  the  claim- 
ant agrees  to  pay  that  amount  "as  liqui- 
dated damages,  and  not  by  way  of  penalty." 
It  is  agreed  further  that  the  United'  States 
shall  have  the  right  to  recover  all  costs  of 
inspection  and  superintendence  incurred  by 
it  during  the  period  of  delay,  and  that  it 
may  [188]  retain  all  the  above-mentioned 
sums  from  any  moneys  falling  due  under 
the  contract. 

There  is  a  proviso  that  if  the  claimants 
"shall  by  strikes,  epidemics,  local  or  state 
quarantine  restrictions,  or  by  the  abnormal 
force  or  violence  of  the  elements,  be  actu- 
ally prevented  from  completing  the  work 

•  •  •  at  the  time  agreed  upon"  with- 
out contributory  negligence  on  his  part, 
"such  additional  time  may,  with  the  prior 
sanction  of  the  Chief  of  Engineers,  be  al- 
lowed him"  •  .  .  "aa,  in  the  judgment 
of  the  party  of  the  first  part,  or  his  sue- 
cessor,  shall  be  just  and  reasonable."  Aa 
we  have  intimated,  the  specifications  also 
state  that  the  time  allowed  is  considered 
sufficient  "unless  extraordinary  and  unfore- 
seeable conditions  supervene."  The  claim- 
ant further  thinks  that  he  finds  some  sup- 
port for  his  argument  in  a  provision  that 
"solid  rock,  large  boulders,  and  compact 
gravel  will  not  have  to  be  removed  at  the 
prices  bid  for  ordinary  excavation.  If  such 
materials  should  be  encountered,  their  re- 
moval, if  required  by  the  engineer,  will  be 
done  under  special  agreement  and  paid 
for  as  extra  work."  On  the  other  hand, 
tlie  claimant  was  required  to  remove  all 
trees,  and  "the  channel  must  be  cleared  of 
all  anags,  logs,  roots,  stumps,  or  wreckage 
that  project  into  or  encroach  in  any  way 
upon  the  cross  section,  .  .  .  the  cost 
of  same  being  included  in  the  unit  price 
bid  for  excavation."    The  claimant  invokes 

•  47 


188-190 


SUPREBfE  COUBT  OF  THE  UNITED  STATES. 


Oct.  Tkbm, 


a  proTiflion  that  the  engineer's  decision  as 
to  quality,  quantity,  and  interpretation  of 
th»  specifications  shall  be  final;  and  this 
ends  the  statement  of  his  case. 

It  is  hopeless  to  argue  against  the  provi- 
sions that  we  have  recited,  and  the  further 
express  warning  that  each  bidder  "is  ex- 
pected to  examine  and  decide  for  himself, 
as  no  allowance  will  be  made  should  any 
of  it  prove  to  be  otherwise  than  as  stated," 
except  as  above  recited  with  regard  to  solid 
rock,  etc  It  is  suggested  that  the  special 
agreement  to  be  made  for  the  removal  of 
"such  materials"  [189]  means  materials  of 
similar  kind;  but  the  phrase  cannot  be 
stretched  to  cover  roots.  The  statement  in 
the  specifications  that  the  time  is  sufficient 
unless  extraordinary  conditions  supervene 
does  not  promise  an  extension  if  such  condi- 
tions do  supervene.  The  extent  of  this 
promise  is  found  in  the  words  of  the  con- 
tract providing  for  the  allowance  of  such 
additional  time  as,  with  the  sanction  of  the 
Chief  Engineer,  the  engineer  in  charge  may 
think  reasonable.  Those  words  tend  also  to 
support  the  contention  of  the  government 
that  "supervene"  means  come  into  being  in 
the  course  of  the  work,  as  in  the  case  of 
strikes,  epidemics,  etc,  and  not  merely  be 
discovered  to  have  existed  and  still  to  ex- 
ist. We  may  add  that  the  averment  haz- 
arded that  the  submergence  of  the  forest 
was  due  to  abnormal  force  of  the  elements 
is  too  obvious  an  attempt  to  pervert  the 
meaning  of  the  proviso  as  to  being  actually 
prevented  by  such  force  from  completing  the 
work,  to  require  analysis.  But  it  is  enough 
to  say  that  any  extension  depended  on  the 
sanction  of  the  Chief  of  Engineers,  and  that 
that  sanction  was  denied.  It  is  said  that 
the  engineer  in  charge  construed  the  con- 
tract differently,  as  he  recommended  an  al- 
lowance of  time.  But  the  ground  of  the  rec- 
ommendation does  not  appear  to  have  been 
an  incorrect  interpretation  of  the  contract; 
on  the  contrary,  it  is  alleged  that  the  liqui- 
dated damages  were  withheld  by  Captain 
Brown;  and  if  his  interpretation  had  been 
wrong,  it  is  hard  to  see  how  it  would  have 
bound  his  superior  on  whose  sanction  the 
recommendation  depended  for  effect.  The 
suggestion  that  it  was  the  duty  of  the  Chief 
Engineer  to  give  his  sanction  in  the  absence 
of  fraud  finds  no  support  in  the  words  used. 
The  claimant  must  abide  by  the  words. 
Carnegie  Steel  Co.  v.  United  SUtes,  240 
U.  S.  156,  164,  ante,  576,  578,  36  Sup.  Ct. 
Bep.  342. 

The  allegations  by  which  the  claimant 
attempts  to  avoid  his  contract  making  time 
of  the  essence,  that  the  damages  were  diffi- 
cult to  prove,  and  that  therefore  they  should 
be  fixed  at  $20  a  day,  are  too  speculative 
[100]  to  do  more  than  emphasise  the 
948 


necessity  for  the  liquidation.  There  is  no 
element  of  deception  or  exorbitance,  and  al- 
though the  case  seems  a  hard  one,  we  see 
no  ground  upon  which  the  claimant  can 
escape  from  the  terms  to  which  he  has 
agreed.  United  States  v.  Bethlehem  Steel 
Co.  205  U.  S.  105,  110,  51  L.  ed.  731,  736, 
27  Sup.  Ct  Rep.  450. 
Judgment  affirmed. 


GEORGIA,  FLORIDA,  &  ALABAMA  RAIL- 
WAY COMPANY,  Plff.  in  Err., 

V. 

BUSH  MILLING  COMPANY. 

(See  S.  C.  Report^'s  ed.  190-100.) 

Connectiiig:  carriers  — •  Carmack  amend- 
ment ^  liability  of  termimU  carrier 
for  its  own  wrong. 

1.  A  terminal  carrier  is  not  relieved 
from  liability  for  misdelivering  an  interstate 
shipment  by  the  provisions  of  the  Carmack 
amendment  of  June  29,  1906  (34  Stat,  at 
L.  593,  chap.  3591),  to  the  act  of  February 
4,  1887  (24  Stat,  at  L.  379,  chap.  104,  Comp. 
Stat.  1913,  §  8592),  §  20,  making  the  initial 
carrier  liable  for  loss  or  damage  occurring 
anywhere  en  route,  with  a  remedy  over 
against  the  carrier  at  fault,  but  the  bill  of 
lading  which  the  initial  carrier  under  that 
statute  must  issue  governs  the  entire  trans- 
portation, and  thus  fixes  the  obligations  of 
all  participating  carriers  to  the  extent  that 
the  terms  of  the  bill  of  lading  are  applicable 
and  valid. 

[For  other  cases,  see  Carriers,  II.  c,  in  Di- 
gest  Sup.   Ct.  1908.] 

Error  to  state  court  — •  Federal  question 

— •  construction   of  interstate   bill  of 

lading. 

2.  The  question  as  to  the  proper  construc- 
tion of  a  bill  of  lading  for  an  interstate 
shipment  issued  under  the  Carmack  amend- 
ment of  June  29,  1906  (34  Stat,  at  L.  593, 
chap.  3591),  to  the  act  of  February  4,  1887 
(24  Stat,  at  L.  379,  chap.  104,  Comp.  Stat 
1913,  §  8592),  §  20,  is  a  Federal  one  which 
will  sustain  the  appellate  jurisdiction  of  the 
Federal  Supreme  Court  over  a  state  court. 
[For  other  cases,  see  Appeal  and  Error,  1751- 

1797,   in  Digest  Sup.  Ci  1908.] 

Carriers  —  notice  of  claim  ^  misde- 
livery. 

3.  Misdelivery  of  an  interstate  shipment 
by  the  terminal  carrier  must  be  regarded 

Note. — On  the  general  subject  of  writs  of 
error  from  the  United  States  Supreme  Court 
to  state  courts — see  notes  to  Martin  v. 
Hunter,  4  L.  ed.  U.  S.  97 ;  Hamblin  v.  West- 
ern Land  Co.  37  L.  ed.  U.  S.  267;  Re  Bu- 
chanan, 39  L.  ed.  U.  S.  884;  and  Kipley  v. 
Illinois,  42  L.  ed.  U.  S.  998. 

On  what  adjudications  of  state  courts  can 
be  brought  up  for  review  in  the  Supreme 
Court  of  the  United  States  by  writ  of  error 
to  those  courts — see  note  to  Apex  Transp. 
Co.  T.  Garbade,  62  LJt Jk.  613.  • 

141  U.  8. 


1916. 


QBOBOIA,  F.  4  A.  B.  CO.  T.  BUSH  MILLINO  CO. 


M  "failure  to  make  delivery,"  within  the 
meaniag  of  a  dauee  in  the  bill  of  lading  it- 
raed  by  the  initial  carrier,  conformably  to 
the  Carmack  amendment  of  June  20,  J  906 
(34  Stat,  at  L.  593,  chap.  3591),  to  the  act 
of  February  4,  1887  (24  SUt.  at  L.  379, 
chap.  104,  Oorop.  Stat.  1913,  §  8592),  §  20, 
which  casta  upon  that  carrier  responsibility 
with  respect  to  the  entire  transportation, 
that  ''claims  for  loss,  damage,  or  delay  must 
be  made  in  writing  to  the  carrier  at  the 
point  of  delivery  or  at  the  point  of  origin 
within  four  months  after  the  delivery  of  the 

fToperty,  or,  in  case  of  failure  to  make  de- 
ivery,  then  within  four  months  after  a  rea- 
sonable time  for  delivery  has  elapsed." 
[For  other  cases,  see  Carriers,  II.  b,  7,  b.  In 
Digest  Sup.  Ct  1M8.] 

Chirrlers  ^  notice  of  claim  ^  validity. 

4.  The  initial  carrier  may  validly  stipu- 
late in  the  bill  of  lading,  issued  conformably 
to  the  Carmack  amendment  of  June  29,  1906 
(34  Stat,  at  L.  693,  chap.  3591),  to  the 

act  of  February  4,  1887  (24  Stat,  at  L.  379, 
chap.  104,  Comp.  Stat.  1913,  8  8592),  §  20, 
for  an  interstate  shipment  tiiat  "claims  for 
loss,  damage,  or  delay  must  be  made  in 
writing  to  the  carrier  at  the  point  of  de- 
livery or  at  the  point  of  origin  within  four 
months  after  the  delivery  of  the  property, 
or,  in  case  of  failure  to  make  delivery,  then 
within  four  months  after  a  reasonable  time 
for  delivery  has  elapsed." 
(For  other  cases,  see  Carriers,  II.  b,  7,  b,  in 
Digest  Sap.  Ct.  1906.] 

Carriera  —  notice  of  claim  —  waiver. 

5.  The  effect  of  a  stipulation  in  a  bill 
of  lading  for  an  interstate  shipment  requir- 
ing claims  for  damages  or  misdelivery  to  be 
presented  within  four  months  after  a  rea- 
sonable time  for  delivery  has  elapsed  can- 
not be  avoided  by  suing  the  carrier  in  trover 
on  the  theory  that  in  inaking  the  misdelivery 
it  converted  the  shipment,  and  thus  aban- 
doned the  contract,  since  the  parties  could 
not  Avaive  the  terms  of  the  contract  under 
which  the  shipment  was  made,  pursuant  to 
the  act  of  February  4,  1887  (24  Stat,  at 
L.  379,  chap.  104),  as  amended  by  the  act 
of  June  29,  1906  (34  Stat,  at  L.  598,  chap. 
3501,  Comp.  Stat.  1913,  %  8692),  nor  could 
the  carrier  by  its  conduct  give  the  shipper 
the  right  to  ignore  the  terms  and  hold  the 
carrier  to  a  different  responsibility  from 
that  fixed  by  the  agreement  made  under  the 
published  tariffs  and  regulations. 

(For  other  cases,  see  Carriers,   II.  b,  7,  b,  in 
Digest  Sup.  Ct.  1908.] 

Carriers  —  notice  of  claim  — •  aalHclency. 

6.  A  claim  for  the  value  of  a  shipment 
of  flour  misdelivered  by  the  carrier  is  suf- 
ficiently made  to  satisfy  the  requirement  of 
the  bill  of  lading  that  claims  based  on  fail- 
ure to  make  delivery  shall  be  made  in  writ- 
ing within  four  months  after  the  time  for 
delivery  has  elapsed,  where  the  shipper, 
after  making  an  investigation  in  response 
to  a  telegram  from  the  carrier's  traflSc  man- 
ager, telegraphed  the  latter  five  days  after 
the  arrival  of  the  fiour  at  destination,  "We 
will  make  claim  against  railroad  for  en- 
eo  li.  ed. 


tiro  contents  of  ear  at  invoioe  prioe.    Mutt 
refuse  shipment  aa  we  cannot  handle." 
[For  other  cases,  see  Carriers,  II.  b,  7.  bu  In 
Digest  Sup.  Ct.  1908.] 

[No.  292.] 

Argued  and  submitted  March   15,  1916. 
Decided  May  8,  1916. 

IN  ERROR  to  the  Court  of  Appeals  of  the 
State  of  Georgia  to  review  a  judgment 
which  modified,  and  aa  modified  affirmed,  a 
judgment  of  the  City  Court  of  Bainbridge, 
Decatur  County,  in  that  state,  in  favor  of 
plaintiff  in  an  action  of  trover  against  a 
carrier.    Affirmed. 

See  same  case  below,  15  Ga.  App.  142,  88 
S.  E.  784. 

The  facts  are  stated  in  the  opinion. 

Mr.  T.  S.  Hawea  argued  the  cause,  and, 
with  Messrs.  Alexander  Akerman  and 
Charles  Akerman,  filed  a  brief  for  plaintiff 
in  error: 

The  remedy  provided  by  the  Carmadc 
Amendment  against  the  initial  carrier  i» 
exclusive. 

Adams  Exp.  Co.  t.  Croninger,  226  U.  S. 
491,  57  K  ed.  314,  44  L.R.A.(N.S.)  257,  33 
Sup.  Ct.  Rep.  148;  Southern  R.  Co.  y.  Ben- 
nett, ~  Ga.  App.  — ,  86  S.  E.  418. 

Stipulations  in  interstate  bills  of  lading 
limiting  the  time  in  which  suits  shall  be 
filed  are  valid. 

Missouri,  K.  &  T.  R.  Go.  t.  Haniman, 
227  U.  8.  657,  57  L.  ad.  690,  38  Sup.  Ct. 
Rep.  397. 

Stipulations  that  a  carrier  shall  not  be 
liable  unleaa  claim  ia  filed  in  a  specified 
period  are  valid. 

Southern  Exp.  Co.  t.  Caldwell,  21  WalL 
264,  22  L.  ed.  556;  Central  Vermont  K. 
Co.  T.  Soper,  8  C.  C.  A.  341,  21  U.  6.  App. 
24,  59  Fed.  879. 

A  limitation  of  liability  made  by  the 
initial  carrier  will  inure  to  the  benefit  of 
any  succeeding  carrier  sued  for  the  loss  or 
damage. 

Kansas  City  Southern  R.  Co.  t.  Carl,  227 
U.  S.  639,  57  K  ed.  683,  33  Sup.  Ct.  Rep.  391. 

The  main  purpose  and  effect  of  the  Car^ 
mack  Amendment  was  to  provide  a  uniform 
rule  as  to  the  liability  of  interstate  carriers 
of  goods,  to  relieve  them  from  diverse  rulea 
to  which  they  had  been  theretofore  sub- 
jected, and  to  supersede  all  the  regulations 
and  policies  of  a  particular  state  i^Kin  the 
subject. 

Spada  T.  Pennsylvania  R.  Co.  86  N.  J.  L* 
187,  92  Atl.  379. 

A  party  who  unsuccessfully  relies  in  the 
state  courts  upon  an  act  of  Congress  as  a 
defense  ia  entitled  to  bring  the  case  up  to 
the  Federal  Supreme  Court  by  writ  of 
error. 


106-197 


SUPREME  OOUBT  OF  THE  UNITED  STATES. 


Oor.  TkBM, 


Sage  T.  Hampe,  2S6  U.  8.  99,  59  L.  ed. 
147,  35  Sup.  Ct.  Rep.  94. 

A  party  who  insista  that  a  Judgment  can- 
not be  rendered  againat  him  consietently 
with  the  statutes  of  the  United  States  may 
be  fairly  held  to  assert  a  right  and  im- 
munity under  such  statutes. 

Nutt  Y.  Knut,  200  U.  8.  12,  50  L.  ed.  348, 
26  Sup.  Ct.  Rep.  215. 

A  Federal  question  must  be  deemed  to 
have  been  raised  in  the  state  courts  with 
sufficient  definiteness  to  comply  with  the 
provisions  of  the  Judicial  Code,  I  237, 
where  it  appears  from  the  opinion  of  the 
state  supreme  court  that  a  question  under 
the  Constitution  of  the  United  States  was 
treated  as  sufficiently  raised,  and  was 
specifically  dealt  with  and  ruled  againat 
the  plaintiff  in  error. 

Mallinckrodt  Chemical  Works  ▼.  Missouri, 
238  U.  8.  41,  59  L.  ed.  1102,  35  Sup.  a.  Rep. 
671. 

In  the  following  cases  the  Supreme  Court 
has  recently  held  that  a  Federal  question 
was  sufficiently  raised: 

North  Carolina  R.  Co. 'v.  Zachary,  232  U. 
6.  248,  58  L.  ed.  501,  34  Sup.  Ct.  Rep.  305, 
Ann.  Cas.  1014C,  150,  9  N.  C.  C.  A.  109; 
Louisiana  R.  ft  Nav.  Co.  t.  Behrman,  235 
U.  S.  1G4,  59  L.  ed.  175,  35  Sup.  Ct.  Rep. 
62;  Lesser  v.  Gray,  236  U.  S.  70,  59  L.  ed. 
471,  35  Sup.  Ct.  Rep.  227;  Coe  ▼.  Armour 
Fertilizer  Works,  237  U.  S.  413,  59  L.  ed. 
1027,  35  Sup.  Ct.  Rep.  625;  Cumberland 
Glass  Mfg.  Co.  ▼.  De  Witt,  237  U.  S.  447, 
59  L.  ed.  1042,  35  Sup.  Ct.  Rep.  636. 

All  service  performed  by  a  railroad  com- 
pany, whether  as  carrier  or  as  warehouse- 
man, is  controlled  by  the  stipulations  con- 
tained in  the  uniform  bill  of  lading  issued 
by  the  initial  carrier. 

Cleveland,  C.  C.  k  St.  L.  R.  Go.  t.  Dettle- 
bach,  239  U.  S.  588,  ante,  453,  36  Sup.  Ct. 
Rep.  177. 

Mr.  A.  li.  Miller  submitted  the  cause  for 
defendant  in  error.  Mr.  E.  M.  Donalson 
was  on  the  brief: 

Where  one  ships  goods  to  his  own  order, 
the  delivery  of  the  ^roods  by  the  carrier 
to  another  without  the  production  of  the 
bill  of  lading  covering  the  shipment  of 
goods  is  a  delivery  made  at  the  risk  of 
the  carrier,  and  subjects  him  to  a  suit  in 
trover  for  conversion. 

Boatm(*n's  Sav.  Bank  t.  Western  ft  A. 
R  Co.  81  Ga.  223,  7  S.  E.  125;  North  Penn- 
sylvania R.  Co.  V.  Commercial  Nat.  Bank, 
123  U.  S.  727,  31  L.  ed.  287,  8  Sup.  a. 
Rep.  266;  Southern  R.  Co.  v.  Strozier,  10 
Ga.  App.  157,  73  S.  E.  42;  Merchants'  ft 
M.  Transp.  Co.  v.  Moore,  124  Ga.  482,  52 
S.  E.  802,  19  Am.  Neg.  Rep.  138;  Hobbs  v. 
Chicago  Packing  ft  Provision  Co.  98  Ga.  576, 
4S8  Am.  St.  Rep.  320,  25  S.  E.  584. 
•  50 


The  Supreme  Court  of  the  \JniUd  Statss 
has  in  a  similar  case  decided  the  queatiott 
involved  here,  and  held  that  the  judgment 
of  the  state  court  was  not  reviewable. 

Arkansas  Southern  R.  Co.  t.  German  Nat 
Bank,  207  U.  S.  270,  52  L.  ed.  201,  28  Sup. 
Ct.  Rep.  78. 

To  give  the  Supreme  Court  of  the  United 
Statea  jurisdiction  of  a  writ  of  error  to 
a  state  court,  it  must  affirmatively  appear 
that  a  Federal  question  waa  presented  for 
decision  by  the  state  court;  that  it  waa  de- 
cided there;  that  a  decision  of  this  Federal 
question  was  necessary  to  the  determina- 
tion of  the  cause;  and  that  it  waa  decided 
adversely  to  the  party  claiming  a  right 
under  the  same. 

Eustis  ▼.  Bolles,  150  U.  S.  361,  37  L.  ed. 
1111,  14  Sup.  Ct.  Rep.  131;  VandaPia  R.  Co. 
V.  Indiana,  207  U.  S.  359,  52  L.  ed.  246,  28 
Sup.  Ct.  Rep.  130;  New  Orleans  ft  N.  E.  R. 
Co.  V.  National  Rice  Mill.  Co.  234  U.  8.  80, 
58  L.  ed.  1223,  34  Sup.  Ct.  Rep.  726;  Garr, 
S.  ft  Co.  V.  Shannon,  223  U.  8.  468,  56  L. 
ed.  510,  32  Sup.  Ct.  Rep.  230. 

Any  one  of  connecting  carriers,  that  oom- 
mits  the  wrong,  is  liable,  as  well  aa  the 
initial  carrier. 

Eaatover  Mule  ft  Horse  Co.  t.  Atlantk 
Coast  Line  R.  Co.  99  S.  C.  470,  83  S.  E. 
599;  Elliott  v.  Chicago,  M.  ft  St  P.  R.  Go. 
35  S.  D.  57,  150  N.  W.  777;  Bichlmeir  v. 
Minneapolis,  St.  P.  ft  S.  Ste.  M.  R.  Co.  159 
Wis.  404,  150  N.  W.  508;  Atchison,  T.  ft  & 
F.  R.  Co.  ▼.  Boyce,  —  Ter.  Civ.  App.  — , 
171  8.  W.  1094. 

Under  the  peculiar  facts  of  the  instant 
case,  it  is  doubtful  whether  there  was  any 
liability  on  the  part  of  the  initial  car- 
rier. 

Louisville  ft  N.  R.  Co.  t.  Brewer,  183 
Ala.  172,  62  So.  698. 

The  contract  of  carriage,  contained  hi 
the  bill  of  lading,  was  abandoned  by  the 
railway  company  when  it  converted  the 
flour.  The  carrier  cannot  repudiate  the 
contract  and  then  hold  the  shipper  to  iti 
terms  that  a  written  claim  must  be  made 
within  a  specified  time  for  loss  or  damsfe. 

Merchants'  ft  M.  Transp.  Co.  v.  Moore, 
124  Ga.  482,  5  S.  E.  802,  10  Am.  Neg.  Bep. 
138;  Salberg  v.  Pennsylvania  R.  Co.  31 
L.RJl.(N.S.)  1178,  and  note,  228  Pa.  641, 
77  Atl.  1007. 

The  contract  of  carriage  does  not  providi 
that  a  claim  must  be  submitted  in  writhig 
if  the.  property  is  converted  by  the  carrier, 
but  only  if  there  is  loss  or  damage.  Hierf 
is  a  wide  difference  between  the  meaning  of 
the  word  "conversion''  and  the  meaning  of 
the  word  ''loss,"  or  the  meaning  of  the 
word  "damage.** 

Atlantic  Coast  Line  R.  Co.  v.  Goodwin,  1 
Ga.  App.  3^6,  57  S.  E.  1070. 

141  V.  8* 


1915. 


6E0RQIA,  P.  ft  A.  B.  CO.  t.  BLISH  MILLING  CO. 


102-196 


Mr.  Justice  Hughes  delivered  the  opin- 
ion of  the  court: 

The  Blish  Milling  Company  brought  this 
action  in  trover  against  the  Georgia,  Flori- 
da, &  Alabama  Railway  Company,  and  re- 
•covered  judgment,  which  was  affirmed  by 
the  court  of  appeals  of  Georgia.  15  Ga. 
App.  142,  82  S.  E.  784.    The  facts  are  these: 

On  May  13,  1010,  the  Blish  Milling  Com- 
pany shipped  from  Seymour,  Indiana,  to 
Bainbridge,  Georgia,  a  carhiad  of  flour  cnn- 
aigned  to  its  own  order,  with  direction  to 
■notify  Draper-Garrett  Grocery  Company  at 
Bainbridge.  The  bill  of  lading  was  issued 
hj  the  Baltimore  k  Ohio  Southwestern  Rail- 
road Company.  The  shipper's  sight  draft 
<upon  the  Draper-Garrett  Grocery  Company, 
for  $1,100.80,  covering  the  price  of  the 
flour,  with  a  carrying  charge,  was  attached 
ito  the  bill  of  lading  and  forwarded  to  a 
bank  in  Bainbridge  for  collection.  The 
flour  was  transferred  to  another  car  by  the 
Central  of  Georgia  Railway  Company,  a 
•connecting  carrier,  and  reached  Bainbridge 
on  June  2,  1010,  over  the  line  of  the  Geor- 
^a,  Florida,  &  Alabama  Railway  Company, 
the  plaintiflf  in  error,  in  accordance  with 
routing.  The  plaintiff  in  error,  without  re- 
•quiring  payment  of  the  draft  and  surrender 
of  the  bill  [193]  of  lading  (which  were 
ultimately  returned  to  the  Blish  Milling 
•Company),  delivered  the  car  to  the  Draper- 
•Garrett  Grocery  Company  immediately  on 
its  arrival  by  placing  it  on  the  sidetrack  of 
that  company.  In  the  course  of  unloading, 
the  Grocery  CompAiy  discovered  that  some 
•of  the  flour  was  wet,  and  thereupon  re- 
loaded the  part  removed  and  returned  .the 
^our  to  the  plaintiff  in  error.  The  aubae- 
qucnt  course  of  events  is  thus  stated  by  the 
•court  of  appeals  (id.  pp.  144,  145): 

"The  railway  company"  (that  Is,  the 
plaintiff  in  error)  "retook  possession  of  the 
•car  and  unloaded  it,  and  in  a  few  days  sold* 
as  perishable  property,  a  part  of  the  flour 
Alleged  to  be  damaged,  and  on  December 
23,  1010,  sold  the  remainder.  On  June  3, 
1910,  after  the  Grocery  Company  had  turned 
the  flour  back  to  the  railway  company,  B. 
•G.  Prince,  traffic  manager  of  the  Georgia, 
Florida,  k  Alabama  Railway  Company, 
telegraphed  to  the  Blish  Milling  Company 
4ia  follows:  'Flour  order  notify  Draper- 
Garrett  Grocery  Company  refused  account 
damage.  Hold  at  your  risk  and  expense. 
Advise  disposition.'  On  the  next  day  the 
Milling  Company  replied  by  telegraphing  to 
Prince,  'Sending  our  representative  there. 
What  is  nature  of  damage?'  To  this  Prince 
replied:  'Flour  transferred  in  route.  Slight 
•damage  by  water,  apparently  rough  han- 
-dling.  When  will  your  representative  reach 
Bainbridge?'  The  Blish  Milling  Company 
replied  that  ita  man  would  be  there  that 
•0  li.  ed. 


night  or  the  next  day.  On  June  7  (after 
the  Milling  Company's  representative  liad 
reached  Bainbridge  and  conferred  with  tlie 
agents  of  the  railway  company  and  with 
the  Grocery  Company)  the  Milling  Company 
sent  a  flnal  telegram,  saying,  *W  e  will  make 
claim  against  railroad  for  entire  contents 
of  car  at  invoice  price.  Must  refuse  sliip- 
ment  as  we  cannot  handle.'  It  appears, 
from  the  evidence  of  Mr.  Draper,  tliat  the 
price  of  flour  declined  after  his  order  was 
given  and  before  the  flour  reached  Bain- 
bridge. There  [194]  is  conflict  in  tiie  evi- 
dence as  to  a  tender  of  the  flour  by  the  rail- 
way company  to  the  Milling  Company's 
representative.  According  to  some  of  the 
testimony,  about  18  barrels  of  the  flour  had 
been  sold  by  the  railway  company  before 
the  alleged  tender  was  made,  and  therefore 
it  was  not  within  the  power  of  the  carrier 
to  tender  the  shipment  in  its  entirety." 
The  verdict  in  favor  of  the  Milling  Com- 
pany was  for  $1,084.50,  from  which  the 
court  of  appeals  required  a  deduction  of  the 
amount  of  the  unpaid  freight,  which  was 
held  to  have  been  erroneously  included. 

With  other  defenses,  the  railway  com- 
pany pleaded  that  the  shipper  had  failed 
to  comply  with  the  following  provibion  of 
the  bill  of  lading,  issued  by  the  initial  car- 
rier: "Claims  for  loss,  damage,  or  delay 
must  be  made  in  writing  to  the  carrier  at 
the  point  of  delivery  or  at  the  point  of 
origin  within  four  montlia  after  the  delivery 
of  the  property,  or,  in  case  of  failure  to 
make  delivery,  then  within  four  montlia 
after  a  reasonable  time  for  delivery  has 
elapsed.  Unless  claims  are  so  made,  the 
carrier  shall  not  be  lialde."  This  defense 
was  overruled.  The  court  of  appeals  stated 
that  "so  far  as  appears  from  tlie  record,  no 
claim  was  flied  by  the  shipper,"  but  deemed 
the  provision  to  be  inapplicable.    Id.  p.  140. 

There  are  only  two  questiona  presented 
here,  and  these  are  thus  set  forth  in  the 
brief  of  the  plaintiff  in  error: 

"1st.  That  the  plaintifl^'s  exclusive  rem- 
edy was  against  the  initial  carrier,  the  Bal- 
timore k  Ohio  Southwestern  Railroad  Com- 
pany, under  tlie  Carmack  amendment  of 
S  20  of  the  Hepburn  bill  [34  Stat,  at  L. 
503,  chap.  3501,  Comp.  Stat.  1013,  §  8502]. 

"2d.  That,  under  the  stipulation  in  the 
bill  of  lading  providing  for  the  filing  of 
claims  for  loss  or  damage,  the  actios  was 
barred." 

The  first  contention  b  met  by  repeated 
decisions  of  this  court.  The  connecting  car- 
rier is  not  relieved  from  liability  by  the 
Carmack  amendment,  but  the  bill  of  lading 
required  to  be  issued  by  the  initial  carrier 
upon  [105]  an  interstate  shipment  gov- 
erns the  entire  transportation,  and  thus 
fizea  the  obligations  of  all  participating 

961 


195-197 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TfeBM, 


carriers  to  the  extent  that  the  terms  of  the 
bill  of  lading  are  applicable  and  valid.  'The 
liability  of  anj  carrier  in  the  route  over 
which  the  articles  were  routed,  for  loss  or 
damage,  is  that  imposed  by  the  act  as  meas- 
ured by  the  original  contract  of  shipment, 
so  far  as  it  is  valid  under  the  act."  Kansas 
City  Southern  R.  Co.  v.  Carl,  227  U.  S.  639, 
648,  67  L.  ed.  683,  686,  33  Sup.  Ct.  Rep.  391. 
See  Adams  Exp.  Co.  v.  Croninger,  226  U.  8. 
491,  607,  608,  67  L.  ed.  314,  320,  321,  44 
L.R.A.(N.S.)  267,  33  Sup.  Ct.  Rep.  148; 
Cleveland,  C.  C.  k  St.  L.  R.  Co.  v.  Dettle- 
bach,  239  U.  S.  688,  691,  ante,  463,  466,  36 
Sup.  Ct.  Rep.  177 ;  Southern  R.  Co.  v.  Pres- 
cott,  240  U.  S.  632,  637,  ante,  836,  839,  36 
Sup.  Ct.  Rep.  469;  Northern  P.  R.  Co.  v. 
Wall,  decided  April  24,  1916  [241  U.  S.  87, 
ante,  906,  36  Sup.  Ct.  Rep.  493]. 

These  decisions  also  established  that  the 
question  as  to  the  proper  construction  of 
the  bill  of  lading  is  a  Federal  question.  The 
clause  with  respect  to  the  notice  of  claims — 
upon  which  the  plaintiff  in  error  relies  in 
its  second  contention — specifically  covers 
"failure  to  make  delivery."  It  is  said  that 
this  is  not  to  be  deemed  to  include  a  case 
where  there  was  not  only  failure  to  deliver 
to  the  consignee,  but  actual  delivery  to  an- 
other, or  delivery  in  violation  of  instruc- 
tions. But  "delivery"  must  mean  delivery 
as  required  by  the  contract,  and  the  terms 
of  the  stipulation  are  comprehensive, — fully 
adequate  in  their  literal  and  natural  mean- 
ing to  cover  all  cases  where  the  delivery 
has  not  been  made  as  required.  When  the 
goods  have  been  misdelivered  there  is  as 
clearly  a  "failure  to  make  delivery"  as  when 
the  goods  have  been  lost  or  destroyed;  and 
it  is  quite  as  competent  in  the  one  case  as 
in  the  other  for  the  parties  to  agree  upon 
reasonable  notice  of  the  claim  as  a  con- 
dition of  liability.  It  may  be  urged  tliat 
the  carrier  is  bound  to  know  whether  it  lias 
delivered  to  the  right  person  or  according 
to  instructions.  This  argument,  however, 
even  with  respect  to  the  particular  carrier 
which  makes  a  misdelivery,  loses  sight  of 
the  practical  object  in  view.  In  fact,  the 
transactions  of  a  railroad  company  are  mul- 
titudinous, and  are  carried  on  [196] 
through  numerous  employees  of  various 
grades.  Ordinarily  the  managing  officers, 
and  those  responsible  for  the  settlement 
and  contest  of  claims,  would  be  without 
actual  knowledge  of  the  facts  of  a  particu- 
lar transaction.  The  purpose  of  the  stipu- 
lation is  not  to  escape  liability,  but  to  facil- 
itate prompt  investigation.  And,  to  this 
end,  it  is  a  precaution  of  obvious  wisdom, 
and  in  no  respect  repugnant  to  public  pol- 
icy, that  the  carrier  by  its  contracts  should 
renuire  reasonable  notice  of  all  claims 
951 


against   it   even  with   respect  to  its  owb 
operations. 

There  is,  however,  a  further  and  control- 
ling consideration.  We  are  dealing  with  a 
clause  in  a  bill  of  lading  issued  by  the 
initial  carrier.  The  statute  casts  upon  the 
initial  carrier  responsibility  with  respect 
to  the  entire  transportation.  The  aim  was 
to  establish  unity  of  responsibility  (Atlan- 
tic Coast  Line  R.  Co.  v.  Riverside  Mills» 
219  U.  S.  186,  199-203,  66  L.  ed.  167,  179- 
181,  31  L.R.A.(N.S.)  7.  31  Sup.  Ct.  Rep. 
104;  New  York,  P.  &  N.  R.  Co.  v.  Peninsula 
Produce  Exch.  240  U.  S.  34,  38,  ante,  511, 
616,  36  Sup.  Ct.  Rep.  230),  and  the  words 
of  the  statute  are  comprehensive  Plough  to 
embrace  responsibility  for  all  losses  result- 
ing from  any  failure  to  discharge  a  carrier's 
duty  as  to  any  part  of  the  agreed  transpor- 
tation, which,  as  defined  in  the  Federal  act, 
includes  delivery.  It  is  not  to  be  doubted 
that  if,  in  the  case  of  an  interstate  ship- 
ment under  a  through  bill  of  lading,  the 
terminal  carrier  makes  a  misdelivery,  the 
initial  carrier  is  liable;  and  when  it  in- 
serts in  its  bill  of  lading  a  provision  re- 
quiring reasonable  notice  of  claims  "in  case 
of  failure  to  make  delivery,"  the  fair  mean- 
ing of  the  stipulation  is  that  it  includes  all 
cases  of  such  failure,  as  well  those  due  to 
misdelivery  as  those  due  to  the  loss  of  the 
goods.  But  the  provision  in  question  is  not 
to  be  construed  in  one  way  with  respect 
to  the  initial  carrier,  and  in  another  with 
respect  to  the  connecting  or  terminal  car- 
rier. As  we  have  said,  the  latter  takes  the 
goods  under  the  bill  of  lading  issued  by  the 
initial  carrier,  and  its  obligations  are  meas- 
ured by  its  terms  (Kansas  City  Southern 
[197]  R.  Ck).  V.  C:arl,  227  U.  S.  639,  648,  57 
L.  ed.  683,  686,  33  Sup.  Ct.  Rep.  391; 
Southern  R.  Co.  v.  Prescott,  240  U.  S.  632, 
637,  ante,  836,  839,  36  Sup.  Ct.  Rep.  4G9); 
and  if  the  clause  must  be  deemed  to  cover 
a  case  of  misdelivery  when  the  action  is 
brought  against  the  initial  carrier,  it  must 
equally  have  that  effect  in  the  case  of  the 
terminal  carrier,  which,  in  the  contempla- 
tion of  the  parties,  was  to  make  the  de- 
livery. The  clause  gave  abundant  oppor- 
tunity for  presenting  claims,  and  we  re- 
gard it  as  both  applicable  and  valid. 

In  this  view,  it  necessarily  follows  that 
the  effect  of  the  stipulation  could  not  be 
escaped  by  the  mere  form  of  the  action, 
llie  action  is  in  trover,  but,  as  the  state 
court  said:  "If  we  look  beyond  its  tech- 
nical denomination,  the  scope  and  effect  of 
the  action  is  nothing  more  than  that  of  an 
action  for  damages  against  the  delivering 
carrier."  16  Ga.  App.  p.  147.  It  is  urged, 
however,  that  the  carrier,  in  making  the 
misdelivery,  converted  the  flour  and  thus 
abandoned  the  contract.     But  the  parties 

141  U.  & 


1015. 


STOWE  r.  HARVKY. 


197-lM 


eould  not  waive  the  terms  of  tbe  contrkct 
under  which  tbe  ehipnieiit  wfte  made  pur- 
•uant  to  the  Federal  act;  nor  could  tbe  car- 
rier by  its  conduct  give  the  shipper  the  right 
to  ignore  theee  turum  wliicli  were  applicable 
to  that  conduct,  and  bold  tlic  carrier  to  a 
different  reipoaiibility  from  that  fixed  bj 
the  agreement  made  under  the  publiabed 
tarilTa  and  regulation!.  A  different  view 
would  antagonize  the  plain  policy  of  the  act 
and  open  the  door  to  tbe  very  abUBes  at 
which  tbe  act  was  aimed.  Chicago  &  A.  R. 
Co.  V.  Kirby,  225  D.  8.  156,  166,  ee  L.  ed. 
1033,  1038,  32  Sup.  Ct,  Rep.  S4S,  Ann.  Caa. 
1914A,  501;  Kansas  City  Soutbem  R.  Co. 
T.  Carl,  Buprai  Atchison,  T.  t  S.  F.  R.  Co. 
r.  Robinson,  233  U.  8.  173,  ISl,  68  h.  ed. 
901,  006,  34  Sup.  Ct.  Rep.  656;  Southern  R. 
Co.  V.  Prescott,  supra.  We  are  not  con- 
cerned in  tbe  present  case  with  any  ques- 
tion save  as  to  the  applicability  of  the  pro- 
vision, and  its  validity,  ai^d  as  we  find  it 
to  be  bath  applicable  and  valid,  effect  must 
be  given  to  it. 

But,  while  this  is  so,  we  think  that  the 
plaintiff  in  error  is  not  entitled  to  succeed 
In  Its  ultimate  contention  under  the  stipu- 
lation for  the  reason  that  it  appears  that 
notice  [lOfi]  of  the  claim  was  in  fact  giv- 
en. It  is  true  that  in  the  statement  niade 
by  tbe  court  of  appeals  it  is  said  that,  so 
far  as  appears  from  the  record,  "no  claim 
iru  filed  by  tlie  shipper."  We  must  assume, 
however,  that  this  was  in  effect  a  construc- 
tion of  the  provision  as  requiring  a  more 
formal  notice  than  that  which  was  actually 
■ent.  For  tba  court  had  already  set  forth 
the  uneontroverted  facts  In  detail  showing 
that  the  shipper  (having  made  an  investi- 
gation in  response  to  the  communication  of 
tbe  trafHc  manager  of  tbe  railway  company) 
had  telegraphed  to  the  latter,  on  June  7, 
1010,  only  five  days  after  the  arrival  of  the 
goods  at  destination,  as  follows:  "We  will 
make  claim  against  railroad  for  entire  con- 
tents of  car  at  invoice  price.  Must  refuse 
■talpment  ss  we  cannot  handle."  In  the 
preceding  telegrams  which  passed  between 
tbe  parties,  and  are  detailed  by  the  state 
court  in  stating  the  facts,  the  shipment  had 
been  adequately  identified,  ao  that  this  final 
talegram,  taken  with  the  othera,  established 
boyond  question  the  particular  shipment  to 
which  the  claim  referred,  end  was  In  sub- 
■tauce  the  making  of  a  claim  within  the 
meaning  of  the  stipulation, — the  object  of 
which  was  to  secure  reasonable  notice.  We 
think  that  it  sufficiently  apprised  the  car- 
rier of  the  character  of  the  claim,  for  while 
it  atatcd  that  the  claim  was  for  the  entire 
eontenta  of  the  car  "st  invoice  price,"  thte 
did  not  constitute  such  a  variance~7Tom  the 
daim  for  the  value  of  the  flour  as  to  be 
mlaleadingi  and  it  la  plain  that  no  pn- 
••  lb  «d. 


judlce  resulted.  Granting  that  the  stipula- 
tion is  applicable  and  valid,  it  does  not  re- 
quire documents  in  a  particular  form.  It  is 
addressed  to  a  practical  exigency  and  it  is 
to  he  construed  in  a  practical  way.  The 
stipulation  required  that  tbe  claim  should 
be  made  in  writing,  but  a  telegram  which, 
in  itself,  or  taken  with  other  telegrams,  con- 
tained an  adequate  statement,  must  be 
deemed  to  satisfy  this  requirement.  See 
Rysn  V.  United  States,  136  U.  S.  68,  83,  34 
L.  ed.  447,  453,  10  Sup.  Ct  Rep.  013;  Klein- 
hana  v.  Jones,  15  C.  C.  A.  644,  37  U.  B. 
App.  1S5,  68  [19S]  Fed.  742,  745;  Godwin 
T.  Frsncis,  L.  R.  6  C  P.  265,  86  L.  J*t!.  P. 
N,  8.  121,  22  L.  T.  N.  8.  338;  Reg,  v.  Riley 
[180G]  1  Q.  B.  30S,  314,  321,  65  L.  J.  Uag. 
Cas.  N.  S.  74,  74  L.  T.  N.  S.  254,  44  Week. 
Rep.  318,  18  Cox,  C.  C.  285,  66  J.  P.  619, 
10  Am,  Grim.  Rep.  402;  Howlej  v.  Whipple, 
48  N.  H.  487,  488;  6Ut«  v.  Holmes,  56 
Iowa,.  568,  690,  41  Am.  Rep.  121,  B  N.  W. 
894. 
Judgment  aflirmed. 


I.  S.  STOWE,  Tnistee  in  Bankruptcy  of 
the  Estate  of  J.  Downey  Harvey,  a  Bank- 
rupt, Apptq 

S.  G.  HARVET. 

(See  S.  C.  Reporter'a  ed.  100-201.) 


A  transfer  of  corporate  stock,  effected 
by  the  delivery  of  a  properly  indorsed  stock 
certificate,  cannot  be  said  to  have  been 
in  fraud  of  the  transferrer's  creditors,  on 
the  theory  that  by  the  retention  of  tbe 
stock  in  hit  own  name  be  was  clothed  witlt 
a  false  credit,  or  that  there  was  not  the 
requisite  change  of  posseaaion,  where,  un- 
der the  local  law,  title  to  atock  may  be 
transferred  by  delivery  of  certificates,  and 

None — On  validity  of  pledge  or  other 
transfer  of  stock  of  cbrporation  when  not 
made  in  the  books  of  the  company,  aa 
against  attachments,  executions,  or  subse- 
quent transfers — see  notes  to  Mapleton  Bank 
T.  Btandrod,  67  L.RA.  666;  and  Everitt  v. 
Farmers'  t  H.  Bank,  20  L.R.A.(N.S.)   006. 

On  contract  for  tbe  sale  of  corporate  stock 
as  one  for  the  sale  of  goods,  etc.,  within 
statutes  of  frauda — see  notes  to  Bprague  v. 
Hoiie,  19  L.R.A.(N.S.)  874;  and  Bewson  v. 
Peterman  Mfg.  Co.  61  I..R.A.(N.8.)  398. 

On  neeeesity  of  writing  to  transfer  shara* 
of  stock — see  notes  to  French  v.  Whit^  S 
L.Tt.A.(N.8.)  804;  and  Herbert  v.  SlmsOTi, 
LJt.AlS16D,  7SS. 


SUPREME  COUBT  OF  THE  UNITED  STATES. 


Ooc  TWKM, 


corporate  books  are  not  for  public  infonna- 

tion. 

(For    other    eatM,    wm    Fraud otent    Coaray- 
ances,   V^  la  Dlgwi  Sup.  Ct.  IVOSJ 

[No.  329.] 

Argued  April  27  and  28,   1016.     Daeided 

May  8,  1918. 

APPEAL  from  the  United  States  Circuit 
Court  of  Appeals  for  the  Ninth  Circuis 
to  review  a  decree  which  reyerted,  with  di- 
rections to  ditmist  the  suit,  a  decree  of  the 
Dittridt  Court  for  the  Northern  District 
of  California  in  favor  of  a  trustee  in  bank- 
ruptcy in  a  suit  by  him  to  set  aside  a  trans- 
fer from  the  bankrupt.    Aflfirmed. 

See  same  case  below,  134  C.  C.  A  836, 
219  Fed.  17. 

Tbe  facts  are  stated  in  the  opinion. 

Mr.  A.  E.  Shaw  argued  the  cause,  and, 
with  Messrs.  Bert  Schlesinger,  Edwin  H. 
Williems,  and  Edward  M.  Cleary,  filed  a 
brief  for  appellant: 

The  appellate  court  was  not  warranted 
in  setting  aside  the  determination  of  the 
trial  court  as  to  the  credit  and  weight 
which  should  be  given  to  the  testimony  of 
the  various  witnesses. 

Davis  V.  Schwartz,  186  U.  S.  837,  30  L. 
ed.  203,  15  Sup.  a.  Rep.  237;  McKinley 
Creek  Min.  Co.  ▼.  Alaska  United  Min.  Co. 
183  U.  S.  6C3,  689,  48  L.  ed.  331,  334,  22 
Sup.  Ct.  Rep.  84,  21  Mor.  Min.  Rep.  730; 
Kimberly  v.  Arms,  129  U.  S.  612,  32  L.  ed. 
704,  9  Sup.  Ct.  Rep.  356;  Callaghan  v. 
Myers,  128  U.  S.  817,  887,  32  L.  ed.  647. 
682,  0  Sup.  Ct.  Rep.  177;  Sonnentheil  v. 
Cliristian  Moerlein  Brewing  Co.  172  U.  S.  ^ 
401,  410,  43  L.  ed.  402,  408,  10  Sup.  a. 
Rep.  233;  Dade  v.  Irwin,  2  How.  383,  301, 
11  L.  ed.  308,  312;  Crawford  v.  Neal,  144 
U.  S.  685,  800,  38  L.  ed.  652,  550,  12  Sup. 
Ct.  Rep.  750. 

In  reversing  the  findings  of  the  trial 
Judge,  the  court  of  appeal  wholly  ignored 
the  rules  of  law  theretofore  enunciated  by 
it  to  tbe  effect  that  findings  of  a  trial 
judge  in  an  equity  suit,  based  on  tbe  evi- 
dence of  witnesses  before  him,  and  result- 
ing in  a  substantial  conflict  with  respect 
to  the  material  issues,  will  not  be  set  aside 
on  appeal. 

Vanderbilt  T.  Bishop,  117  C.  a  A.  862. 
109  Fed.  421. 

In  a  case  such  as  the  present,  the  Su- 
preme Court  will  review  the  evidence  taken 
in  the  inferior  court  to  ascertain  whether 
there  is  substantial  evidence  to  support  the 
findings  of  the  chancellor  who  presided  at 
the  trJML 
054 


8  Foster,  Fed.  Fr.  5th  ed.  pp.  23,  60;  Be 
Neagle,  135  U.  S.  1,  42,  34  L.  ed.  66,  83, 
10  Sup.  Ct  Rep.  868. 

Those  who  help  to  give  false  credit  to  aa 
insolvent  debtor  have  do  rights  superior 
to  those  of  his  creditors. 

National  Bank  t.  Shackelford,  230  U.  a 
81,  ante,  168,  38  Sup.  Ct  Rep.  17;  Moors 
V.  Page,  111  U.  S.  117,  110,  28  L.  ed.  873, 
374,  4  Sup.  Ct  Rep.  388. 

The  gift  of  theae  shares  by  Hanrey  to 
his  wife  was  not  accompanied  by  an  actual 
and  continuous  change  of  possession,  and 
therefore  is  void  as  to  his  creditors. 

Stevens  ▼.  Irwin,  16  CaL  603,  78  Am. 
Dec.  600;  Murphy  v.  Mulgrew,  102  CaL  647, 
41  Am.  St  Rep.  200,  38  Pac  857 ;  Tragear 
V.  Etiwanda  Water  Co.  78  CkL  637,  0  Am. 
St  Rep.  246,  18  Pac  868. 

Certificates  of  stock  in  a  corporation  ars 
not  actually  theistock,  but  are  merely  tbe 
symbolic  representations x>f  the  stock;  that 
is,  they  are  the  symbols  which  represent 
the  intangible  thing, — ^the  stock  itself. 

Film  Producers  ▼.  Jordan,  —  CaL  — ,  164 
Pac  805;  Payne  ▼.  Elliot,  64  CaL  342,  35 
Am.  Rep.  80,  14  Mor.  Min.  Rep.  616. 

Mr.  Charles  8.  Wheeler  argued  the 
cause,  and,  with  Bifr.  John  F.  Bowie,  filed 
a  brief  for  appellee: 

In  California  a  valid  gift  of  sharea  of 
stock  may  be  made  by  delivering  the  stock 
certificate  to  the  donee,  indorsed  in  blank. 
No  transfer  upon  the  books  of  the  cor- 
poration is  necessary  to  complete  the  gift 

Calkins  v.  Equitable  Bldg.  A  L.  Assc 
128  CaL  631,  60  Pac.  30;  Spreckels  ▼. 
Nevada  Bank,  113  CaL  272,  278,  33  LJLA 
450,  64  Am.  St  Rep.  348,  46  Pac.  329; 
National  Bank  v.  Western  P.  R.  Co.  157 
CaL  578,  27  L.RJL(N.S.)  087,  108  Pac  876. 
21  Ann.  Cas.  1301.  See  also  First  Nat.  Bank 
V.  Holland,  09  Va.  495,  65  L.ItA.  165,  86 
Am.  St.  Rep.  898,  39  S.  E.  128;  Allen- West 
Commission  Co.  ▼.  Grumbles,  88  C  G.  A 
401,  120  Fed.  200. 

The  United  States  circuit  court  of  ap- 
peals was,  of  course,  not  bound  by  the 
facts  found  by  the  trial  judge.  It  is  well 
settled  that  that  court  will  not  beaitats 
to  reverse  the  trial  court  upon  the  factf 
where  there  has  been  a  sorious  mistake  in 
dealing  with  the  facts. 

United  SUtes  v.  Marshall,  127  C.  C.  A 
231,  210  Fed.  507;  DeLaval  Separator  Cb.  ▼. 
Iowa  Dairy  Separator  Co.  114  C.  C.  A.  385, 
194  Fed.  423;  Iowa  v.  Carr,  112  C.  a  A. 
477,  lOl  Fed.  257. 

And  the  United  States  Supreme  Court 
has  said  that  it  is  proper  for  a  court  of 

141  U.  & 


1915. 


8T0WE  T.  HA&VEY. 


200,  201 


equity,  upon  appeal,  to  set  aside  the  find- 
ings of  a  trial  judge  when  clearly  in  con- 
flict with  the  weight  of  the  evidence  upon 
which  they  were  made. 

Kimberly  v.  Amis,  129  U.  S.  612,  32  L. 
«d.  7G4,  9  Sup.  Ct.  Rep.  315. 

No  d,uty  rests  upon  this  court  to  review 
elaborately  the  facts  determined  by  the 
court  of  appeals. 

Bloom  V.  National  United  Ben.  Sav.  Sl 
L.  Co.  152  N.  Y.  119,  46  N.  E.  166;  Chi- 
cago Junction  R.  Co.  v.  King,  222  U.  S.  222, 
56  L.  ed.  173,  32  Sup.  Ct.  Rep.  79;  Texas  Sl 
P.  R.  Co.  ▼.  Howell,  224  U.  S.  677,  56  L. 
«d.  892,  32  Sup.  Ct.  Rep.  601;  Grand  Trunk 
Western  R.  Co.  v.  Lindsay,  233  U.  8.  42,  68 
L.  ed.  838,  34  Sup.  Ct.  Rep.  581,  Ann.  Cas. 
1914C,  168;  Atlantic  Transport  Co.  t.  Im- 
brovek,  234  U.  S.  52,  63,  58  L.  ed.  1208, 
1213,  51  L.R.A.(N.S.)  1157,  34  Sup.  Ct.  Rep. 
733;  Yazoo  A  M.  Valley  R.  Co.  ▼.  Wright, 
235  U.  S.  376,  378,  69  L.  ed.  277,  278,  36 
Sup.  Ct.  Rep.  130. 

In  California  the  general  public  has  no 
right  to  see  the  stock  books  of  a  corpora- 
tion. It  was  not  a  concealment,  either 
from  the  public  or  from  Mr.  Harvey's  credi- 
tors, to  carry  the  stock  in  Mr.  Harvey's 
same  on  those  books. 

National  Bank  v.  Western  P.  R.  Co.  157 
Cal.  581,  27  L.RJ^.(N.S.)  987,  108  Pac.  676, 
21  Ann.  Cas.  1391. 

In  California  a  bona  fide  stockholder  is 
not  necessarily  the  owner  of  stock;  and 
one  who  becomes  a  bona  fide  stockholder 
does  not  cease  to  be  such  by  the  indorse- 
ment and  delivery,  by  way  of  sale  or  gift, 
of  the  shares  of  stock  to  another,  although 
lie  ceases  thereby  to  be  the  ''owner." 

Smith  Y.  San  Francisco  &  N.  P.  R.  Co. 
115  Cat  503,  35  L.RJ^.  309,  56  Am.  St. 
Itep.  119,  47  Pac.  582. 

The  fact  that  Mr.  Harvey  voted  this 
etock  as  a  stockholder  is  therefore  not  in- 
consistent with  his  testimony  that  he  had 
indorsed  and  given  the  certificates  of  stock 
to  his  wife.  The  same  is  true  with  regard 
to  the  signature  of  Mr.  Harvey  to  the 
Amendment  of  the  by-laws.  He  was  a 
lawful  stockholder,  though  not  owning  the 
shares,  and  as  such  stockholder  could  give 
a  valid  assent  to  the  amendment  of  the 
by-laws. 

Ibid. 

The  indorsement  and  delivery  of  the 
•eertiPicate  passes  the  title  as  against  the 
irorld. 

Allen-West  Commission  Co.  v.  Grumbles, 
43  C.  C.  A.  401,  129  Fed.  290;  Calkins  v. 
Equitable  Bldg.  &,  L.  Asso.   126  Cal.  534, 
^9  Pac.  30;  Spreckels  v.  Nevada  Bank,  113  I 
40  L.  ed. 


Cal.  272,  33  LJLA.  459,  54  Am.  6t.  Rep. 
348,  45  Pac.  329;  National  Bank  v.  West- 
ern P.  R.  Co.  157  Cal.  676,  27  L.R.A.(N.8.) 
987,  108  Pac.  676,  21  Ann.  Cas.  1391. 

[200]  Jifr.  Justice  McReynolds  deliv- 
ered the  opinion  of  the  court: 

J.  Downey  Harvey  of  San  Francisco  was 
adjudged  a  bankrupt  November  17,  1911. 
Appellant,  having  become  trustee  of  the 
estate,  instituted  this  proceeding  to  set 
aside  a  transfer  by  the  bankrupt  to  his 
wife--defendant  in  error — of  certain  stock 
in  Shore  Line  Investment  Company,  because 
made  without  consideration  \nd  with  intent 
to  delay  and  defraud  his  creditors.  The 
complaint  alleges  that  the  gift  was  made 
and  stock  transferred  in  November,  1909, 
when  it  is  admitted  Harvey  was  insolvent. 
Mrs.  Harvey  maintains  that  her  husband 
gave  the  stock  and  actually  delivered  the 
properly  indorsed  certificate  to  her  in 
1905,  during  all  of  which  year  his  solvency 
is  conceded.  The  substantial  controversy 
throughout  has  been  upon  the  question  of 
fact  thus  raised. 

Having  heard  witnesses,  the  trial  eourt 
held  the  transfer  was  made  in  1909,  and 
rendered  a  decree  in  favor  of  the  trustee. 
The  circuit  court  of  appeals,  after  a  care- 
ful review  of  the  evidence,  reached  a  con- 
trary conclusion.  134  C.  C.  A.  635,  219 
Fed.  17.  We  are  now  asked  to  reverse  its 
decree  and  sustain  the  trial  eourt. 

Notwithstanding  doubts  necessarily  en- 
gendered by  some  confiicting  statements  and 
questionable  circumstances,  upon  considera- 
tion of  the  whole  record  we  think  the  de- 
cision of  the  circuit  court  of  appeals  it  cor- 
rect. 

Appellant  also  suggests  (a)  that  the  gift 
is  void  because  Mrs.  Harvey  permitted  her 
husband  for  more  than  four  years  to  retain 
apparent  title  to  the  stock  and  hold  himself 
out  as  its  real  owner;  and  (b)  that  there 
was  no  actual  and  continuous  change  of 
possession,  as  required  by  the  state  statute 
against  fraudulent  conveyances.  In  reply 
to  these  suggestions  it  seems  only  necessary 
to  cite  National  Bank  v.  Western  P.  R.  Co. 
157  Cal.  573,  581,  27  L.ILA.(N.S.)  987,  108 
Pac.  076,  21  Ann.  Cas.  1391,  which  an- 
nounces as  settled  doctrine  in  California 
[201]  that  title  to  stock  may  be  trans- 
ferred by  delivery  of  certificates,  and  cor- 
porate books  are  not  for  public  informa- 
tion. 

The  judgment  of  the  Circuit  Court  of  Ap- 
peals is  affirmed. 

Mr.  Justice  McKenna  took  no  part  in 
the  consideration  or  deciaiom  ol  this  case. 


201 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbm, 


FRANKLIN  K.   LANE,   Secretary  of   the 
Interior,  Plff.  in  Err., 

V. 

UNITED  STATES  OF  AMERICA  EX  RE- 
LATIONE  JULIA  LAMERE  MICKA- 
DIET,  n44  Tiebault,  and  Alma  Lamcrc 
Tiebault. 

(See  S.  C.  Reporter's  ed.  201-211.) 

Mandamus  ^  to  control  admlnistratlTe 
action  — •  ascertainment  of  belrs  of 
Indian  allottee. 

1.  An  ord«*r  of  the  Secretary  of  the  In- 
terior, recognizing  the  adopted  children  of 
a  deceased  Indian  allottee  as  his  heirs, 
tiiough  made  "final  and  conclusive*'  by  the 
act  of  June  25,  1910  (36  Stat,  at  L.  855, 
chap.  431,  Comp.  Stat.  1013,  f  4226),  un- 
der wliich  he  acted,  did  not  exhaust  his 
power  so  as  to  permit  the  courts  by  man- 
damus to  interfere  with  his  action  in  re- 
opening the  matter  for  further  considera- 
tion, where  the  property  to  which  the  order 
relates  is  still  in  the  administrative  con- 
trol of  the  Department  because  of  the  trust 
imposed  by  the  law  of  the  United  States 
until  the  expiration  of  the  statutory  period. 
[For  other  cases,  see  Bfandamus,  II.  d,  6,  in 

Digest  Bap.  Ct.  1908.] 

Handamna  ^  to  control  admlnistraUve 
action  ^  ascertainment  of  beirs  of 
Indian  allottee. 

2.  A  decree  of  adoption  made  by  a 
state  court  furnishes  no  ground  for  inter- 
fering by  mandamus  with  the  exercise  by 
the  Secretary  of  the  Interior  of  his  power 
under  the  act  of  June  25,  1010  (36  SUt. 
at  L.  855,  chap.  431,  Comp.  Stat.  1913, 
§  4226),  to  determine  the  legal  heirs  of  a 
deceased  allottee,  and  in  so  doing  to  ascer- 
tain the  existence  of  the  state  court's  judg- 
ment, the  jurisdiction  ratione  materuB  of 
the  court  by  which  it  was  rendered,  and 
the  legal  effect  whioh  it  was  entitled  to  re- 
ceive under  the  state  law. 

[For  other  cases,  soe  Mandamus,  II.  d,  6.  in 
Digest  Sap.  Ct.  1908.] 

[No.  449.] 

Argued  April  10,  1016.     Decided  May  22, 

1916. 

IN  ERROR  to  the  Court  of  Appeals  of  the 
District  of  Columbia  to  review  a  judg- 
ment which  reversed,  with  a  direction  to 
issue  the  mandamus  prayed  for,  a  judg- 
ment of  the  Supreme  Court  of  the  Diitrict, 
dismissing  the  petition  for  a  writ  of  man- 
damus to  control  the  action  of  the  Secre- 
tary of  the  Interior  concerning  the  ascer- 
tainment of  the  heirs  of  a  deceased  Indian 
allottee.  Reversed  and  remanded  with  di- 
rections to  affirm  the  judgment  of  the  Su- 
preme Court  of  the  District. 

Note, — On   power   of   courts   to  enforce 
ministerial    duties    of    heads    of    depart- 
ments— see  note  to   Cooke  t.  Iverson,   52 
L.R.A.(N.S.)   415. 
956 


See  same  case  below,  43  App.  D.  C.  414. 
The  facts  are  stated  in  the  opinion. 

Solicitor  General  DaTia  argued  the  cause, 
and,  with  Mr.  Robert  Szold,  filed  a  brief 
for  plaintiff  in  error: 

Since  the  United  States,  the  real  party 
defendant,  has  not  consented  to  be  sued 
in  this  cause,  it  should  be  dismissed  for 
want  of  jurisdiction. 

Naganab  v.  Hitchcock,  202  U.  S.  473,  50 
L.  ed.  1113,  26  Sup.  CL  Rep.  667;  Oregon  v. 
Hitchcock,  202  U.  S.  60,  50  L  ed.  935,  26 
Sup.  Ct.  Rep.  568. 

The  immunity  of  the  United  States  from 
suit  is  not  waived  by  failure  to  present 
the  point  in  the  lower  court. 

Carr  v.  United  States,  98  U.  S.  433,  438, 
25  L.  ed  209,  211 ;  Stanley  y.  Schwalby,  162 
U.  S.  255,  270,  40  L  ed.  960,  965,  10  Sup. 
Ct.  Rep.  754. 

Prior  to  conveyance  of  legal  title  to  the 
heirs  of  the  Indian  allottee  the  Secretary 
of  the  Interior  has  jurisdiction  to  recon- 
sider a  determination  of  heirship.  The 
statutory  direction  that  the  Secretary's  de- 
cision shall  be  final  and  conclusive  is  ad- 
dressed to  the  courts. 

Hallowell  v.  Commons,  239  U.  S.  506, 
ante,  409,  36  Sup.  Ct.  Rep.  202;  Pearson  v. 
Williams,  202  U.  S.  281,  50  L.  ed.  1029,  26 
Sup.  Ct.  Rep.  608. 

The  decided  cases  settle  the  general  rule. 

Brown  v.  Hitchcock,  173  U.  S.  473,  43  L. 
ed.  772,  19  Sup.  Ct.  Rep.  485;  United  SUtes 
ex  rel.  Knight  y.  Lane,  228  U.  S.  6,  57  L 
ed.  709,  33  Sup.  Ct.  Rep.  407. 

In  this  case  the  legal  title  beyond  all 
doubt  remains  in  the  United  States. 

United  States  v.  Rickert,  188  U.  S.  432, 
47  L.  ed.  532,  23  Sup.  Ct.  Rep.  478. 

The  judgment  of  the  Secretary  cannot 
be  controlled  by  mandamus. 

Hallowell  v.  Commons,  supra;  United 
States  ex  rel  Ness  v.  Fisher,  223  U.  S.  683, 
693,  56  L.  ed.  610,  613,  32  Sup.  Ct.  Rep. 
356;  Oregon  v.  Hitchcock,  202  U.  S.  60,  70, 
50  L.  ed.  935,  938,  26  Sup.  CL  Rep.  568. 

The  order  for  rehearing  was  not  arbi- 
trary, but  within  the  exercise  of  reasonable 
discretion. 

Jaster  v.  Currie,  69  Neb.  4,  94  N.  W.  995; 
Tucker  y.  Fisk,  154  Mass.  574,  28  N.  E. 
1051. 

Mr.  Irving  F.  Baxter  argued  the  cause, 
and,  with  Messrs.  Norris  Brown,  Edward  F. 
Colladay,  and  Howard  Saxton,  filed  a  brief 
for  defendant  in  error: 

The  Secretary  of  the  Interior  is  without 
jurisdiction  to  annul  the  decision  of  his 
predecessor  of  January  11,  1913,  for  the 
reason  that  such  decision  was  a  Judicial 
act  and  can  only  be  reviewed,  if  at  all,  by 
the  courts. 

141  U.  8» 


191S. 


LAKE  V.  UNITICD  STATES  u  iel.  MICKADIET. 


Hallowell  v.  Commons,  127  C.  C.  A.  343, 
210  Fed.  TD3;   Bond   v.  United  States,  181    : 
Fed.  613;  Pel-AU-Yakot  t.  United  States, 
188  Fed.  387  i  Parr  ».  Colfax,  117  C.  C.  A.    i 
48,   197    Fed.   302;    Oglesby   v.   Attrill,    14 
Fed.   214;    AUen    v.   Wilaon,   21    . 
Baptist  V.  Farwell  Tranap.  Co.  20  Fed.  180. 

When  the  Secretary  of  the  Interior  under 
the  public  lands  act  proceeds  to  investi- 
gate, to  hear  testimony,  and  to  decide  the  : 
issue  as  to  who  is  rightfully  entitled  to  a 
patent  or  to  a  homestead  entry,  his  de- 
cision tliereOD  is  not  reviewable  by 
auccesBor   in  office. 

Germania  Iron  Co.  t.  James,  32  G.  C  A. 
34S.  61  U.  S.  App.  1,  SB  Fed.  811  j  Noble  v. 
Union  River  Logging  R.  Co.  147  U.  T  "  " 
37  L.  ed.  123,  13  Sup.  Ct.  Rep.  271 ;  Emblem 
T.  Lincoln  Land  Co.  42  C.  C.  A.  4SB,  102 
Fed.  503;  United  States  v.  Stone.  2  Wall. 
fi25,  17  L.  ed.  705;  Lane  v.  Watts,  234  U.  S. 
52B,  540,  58  L.  ed.  1440,  HoO,  34  Sup.  ("t.  ' 
Rep.  065;  Ballinger  t.  United  SUt«s,  210  i 
U.  S.  240,  54  L.  ed.  464,  30  Sup.  Ct,  Rep- 
336;  Union  Terminal  R.  Co.  v.  Railroad 
Comrs.  04  Kan.  352,  3S  Pac.  200;  Renaud 
V.  State  Court  of  Mediation  t  Arbitration,  United  States  v.  Rickcrt,  188  U.  S.  432, 
124  Mich.  648,  51  L.RjI.  453,  83  Am.  St.  *7  L.  ed.  632,  23  Sup.  Ct.  Rep.  478;  Marchie 
Rep.  346,  83  N.  W.  620.  Tip;er  v.  Western  Invest.  Co.  221  U.  S.  208, 

The  adoption  decree  of  the  county  court  311,  55  L.  ed.  742,  747,  31  Sup.  Ct.  Rep. 
of  Thuiston  county,  Nebraska,  acting  with-  578;  United  States  v,  Celestine,  215  U.  ti. 
in  its  jurisdiction,  from  which  no  appeal  278,  54  L.  ed.  105,  30  Sup.  Ct.  Rep.  03. 
was  taken,  is  not  subject  to  collateral  at-  I'rior  to  the  act  of  Congress  of  August 
Uok,  and  the  Secretary  of  the  Interior  is  ^•'-  1^04,  the  Secretary  of  the  Interior,  u 
without  power  or  jurisdiction  to  annul,  *''*  represenUtive  ot  tlie  government  in 
modify,  or  vacate  such  decree.  ^'"'    execution    ol    treaty    obligatioi 


The  primitive  dependence  and  the  eco- 
nomic helplessness  of  these  people  under 
luodern  civilization  have  been  recognized 
by  the  courts,  and  it  has  been  observed  thst 
the  obligation  of  the  govemment  towards 
them  falls  upon  the  Executive,  and  out  of 
this  obligation  arises  the  duty  of  protec- 
tion. 

United  States  v.  Kagama,  118  U.  S.  376, 
30  L.  ed.  228,  6  Sup.  Ct.  Rep.  1109. 

Tlie  legal   interpretation  of  this  alloting 
statute  lias  been  made  clear  by  this  court, 
and   in   the  coastruction   of   the  trust  cre- 
ated  tliereby,    it   has   been    held   that   the 
holding  of  the  individual  allotment  in  trust 
by  the  United  States,  for  the  sole  use  and 
bi'neflt  of  the  Indian  ward,  was  merely  one 
,    of   the   inBtrumentalities   employed   by   the 
,    government  in  its  policy  of  protecting  and 
.    developing   these    people    in    their    passage 
from   a   state   of   dependence  and   pupilage 
.    into  fuller  citizenship,  and  preparing  them 
I   the   responsibilities  of  civilized 


ivith    exclusive    jurisdietion    to    de- 
<  the  descent  of  these   lands  during 
the  trust  period. 

McKay    v.   Kalyton,   Z04   U.   S.   468,   51 


Ferguson  v,  Herr,  64  Neb.  662,  DO  N.  W. 
«25,  04  N.  W.  M2;  Jones  v.  Leeds,  41  Ind. 
App.  104,  83  N.  E.  526;   Brown  v.  Brown, 

^l^  ,^A-    ^«' J^''5'/''P"''    ^°    ^'^'"  L.^'ed.  596.  27  Sup.  a.  Rep.  346, 

(Pa.)    139.  22   W.   N.   C.   93,   13   Atl,   760;  ^his  jurisdiction   was  temporarily  inUr- 

ttzek  v.  Czek,  60  Neb.  797.  96  N.  W.  657,  ^ptod  by  the  passage  of  the  act  of  1894. 

M  N.  W.  28,  G  Ann.  Cas,  464;  Chaloner  v.  but  it  has  been  held  that  the  act  ot  June 

Shermsn.  132  C.  C.  A.  06,  215  Fed.  887.  25.  1010,  restored  to  the  Secretary  of  the 

Harrison    Tebo    and    every    other    blood  Interior  the  authority  which  inherently  be- 


relative  of  My  Soul  Tiebault,  deceased, 
estopped  in  law  to  question  the  validity  of 
the  adoption  decree  entered  by  the  county 
«ourt  of  TburstoD  county,  Nebraska.  Such 
decree  was  binding  upon  My  Soul  Tie- 
bault during  his  lifetime,  and  is  not  sub- 
ject to  collateral  attack  by  his  heirs  after 
bis  death. 

Re  Williams,  102  Cal.  70,  41  Am.  St.  Rep. 
163,  36  Pac.  407;  Van  Matre  v.  Sankey, 
148  in.  636,  23  L.R.A,  665,  39  Am.  St.  Rep. 
106,  36  N.  E.  628;  Re  Johnson,  98  Cal.  543. 
21  L.Rjl.  380,  33  Pac.  400;  Parsons  v.  Par- 
•oos.  101  Wis.  76,  70  Am.  St.  Hep.  804.  77 
V.  W.  147;  1  R.  C.  L.  624;  Ferguson  v. 
Hmt,  64  Neb.  680,  &0  N.  W.  625,  94  N.  W. 
fi42. 
40  L.  ed. 


longed  to  his  office. 

Hallowell  V.  Commons,  239  U.  S.  506, 
ante,  409,  36  Sup.  Ct.  Rep.  202;  Harchio 
Tiger  v.  Western  Invest.  Co,  221  U,  S.  311, 
55  L.  ed.  747,  31  Sup.  Ct.  Rep.  578. 

If  a  court  proceeds  without  jurisdiction 
its  decrees  are  void,  rcgnrdless  of  how 
teelmically  correct  the  record  may  appear. 

Sheldon  v.  Newton,  3  Ohio  St.  494;  Scott 
V.  McNeal,  154  U.  S.  34,  38  L.  ed.  806,  14 
Sup.  Ct.  Rep.  1108;  Cooper  r.  Newell,  173 
U-  S.  555,  43  L.  ed.  808,  19  Sup.  Ct.  Rep. 
SOS. 

A  court  of  general  or  superior  jurisdic- 
tion may.  even  in  a  collateral  proceeding, 
question  the  decree  of  another  court  when 
it  appears  that  such  decree  was  rendered 
without  Jurisdiction  because  of  fraud,  de- 


204-20G 


SUPREME  COURT  OF  THE  UKITED  STATES. 


Oct.  Tbu, 


celt,  ur  other  jorUdictional  defects,  not- 
withstanding the  averments  contained  in 
the  record  of  the  judgment  itself. 

Michaels  ▼.  Post,  21  WalL  398,  22  L.  ed. 
520;  Thompson  v.  Whitman,  18  Wall.  457, 
21  L.  ed.  897;  lyArcy  v.  Ketchum,  11  How. 
165,  13  L.  ed.  648;  Public  Works  v.  Colum- 
bia  College,  17  WaU.  621.  527,  21  L.  ed. 
687,  691;  Bigelow  v.  Old  Dominion  Copper 
Min.  &  Smelting  Co.  225  U.  S.  Ill,  134-139, 
56  L.  ed.  1009,  1024-1026,  32  Sup.  Ct.  Rep. 
641,  Ann.  Cas.  1913E.  875. 

The  decision  which  the  Secretary  of  the 
Interior  now  proposes  to  open  for  recon- 
sideration was  rendered  under  a  misappre- 
hension of  these  well-settled  principles  of 
law,  and  he  therefore  never  exercised  his 
full  jurisdictional  function.  As  such  a 
tribunal,  the  Secretary  is  undoubtedly 
clothed  with  the  power  and  authority  to 
rehear  and  determine  what  he  has  not 
fully  passed  upon,  viz.,  jurisdiction  of  the 
county  court  affecting  Indian  lands;  and 
if  he  finds  that  in  the  former  decision  he 
was  not  fully  advised  of  the  facts,  he  may 
ascertain  them;  and  if  he  finds  that  in 
such  former  decision  he  has  made  errors 
of  law  or  fact,  he  may  correct  the  same. 

Knight  Y.  United  Land  Asso.  142  U.  S. 
161,  177-181,  35  L.  ed.  974,  979-181,  12 
Sup.  Ct.  Rep.  258. 

Mr.  Chief  Justice  White  delivered  the 
opinion  of  the  court: 

The  relators,  who  are  defendants  in  er- 
ror, invoked  the  aid  of  the  trial  court  to 
control  by  mandamus  the  action  of  the  Sec- 
retary of  the  Interior  concerning  an  allot- 
ment in  severalty  of  land  made  to  an 
Indian  in  pursuance  of  the  authority  con- 
ferred by  the  act  of  February  8,  1887  (chap. 
119,  24  Stat,  at  L.  388,  Comp.  SUt.  1913, 
§  4195),  entitled,  "An  Act  to  Provide  for 
the  Allotment  of  Lands  in  Severalty  to  In- 
dians on  the  Various  Reservations."  Under 
the  facts  stated  in  his  return  to  the  alter- 
native rule,  the  Secretary,  asserting  that 
the  land  embraced  by  the  allotment  in  ques- 
tion was  held  in  trust  by  the  United  States 
for  the  benefit  of  the  allottee,  and  that  the 
official  action  sought  to  be  prohibited  was 
not  subject  to  judicial  control,  because  it 
was  one  of  exclusive  administrative  author- 
ity, denied  that  there  was  a  right  to  grant 
the  relief  prayed.  The  return  was  de- 
murred to  as  stating  no  ground  for  with- 
holding the  relief.  The  trial  court  overruled 
the  demurrer  and  discharged  the  rule,  but 
the  court  below  reversed,  and,  holding  that 
the  Secretary  had  no  power  to  take  the  ac- 
tion which  it  was  alleged  he  intended  to 
ta\ce  concerning  the  allotment  in  question, 
awarded  the  mandamus  prayed  (43  App.  D. 
958 


C.  414),  and  the  correctness  of  this  ruling 
is  the  question  now  to  be  decided. 

The  facts  are  these:  Tiebault  was  a  Win- 
nebago Indian  living  on  the  tribal  reserva- 
tion in  Nebraska,  and  in  August,  1887,  re- 
ceived an  allotment  in  severalty  of  the  tribal 
land  to  which  he  was  entitled,  made  in 
virtue  of  the  act  of  1887.  That  act,  after 
conferring  authority  upon  the  Secretary  of 
the  Interior  to  make  allotments  of  tribal 
lands  as  therein  specified,  directed  that  of- 
ficial to  issue  [205]  to  the  allottees  pat- 
ents, which  *'shall  be  of  the  legal  effect,  and 
declare  that  the  United  States  does  and  will 
hold  the  lands  thus  allotted,  for  the  period 
of  twenty-five  years,  in  trust  for  the  sole 
use  and  benefit  of  the  Indian  to  whom  such 
allotment  shall  have  been  made,  or,  in  case 
of  his  decease,  of  his  heirs  according  to  the 
laws  of  the  state  or  territory  where  such 
land  is  located,  and  that  at  the  expiration 
of  said  period  the  United  States  will  con- 
vey the  same  by  patent  to  said  Indian,  or 
his  heirs  as  aforesaid,  in  fee,  discharged  of 
said  trust  and  free  of  all  charge  or  en- 
ciunbrance  whatsoever:  Provided,  That  the 
President  of  the  United  States  may  in  any 
case  in  his  discretion  extend  the  period." 
(Section  5.) 

About  ten  years  after  the  allotment  Tie- 
bault, having  continued  to  reside  on  the 
land  and  to  enjoy  the  same  conformably  to 
the  statute,  began  proceedings  in  the  court 
of  Thurston  county,  Nebraska,  for  the  adop- 
tion as  his  children  of  the  two  relators,  who 
were  also  Winnebago  Indians,  and  a  decree 
of  adoption  as  prayed  was  entered.  When, 
ten  years  after  the  adoption,  Tiebault  died 
without  surviving  issue,  the  adopted  chil- 
dren, asserting  rights  as  his  sole  heirs,, 
sought  the  possession  of  the  land  embraced 
by  the  allotment  and  of  some  other  land 
which  had  also  been  covered  by  an  allotment 
made  to  a  daughter  of  Tiebault,  who  died 
before  him  without  issue,  and  which  land  he 
had  therefore  inherited.  This  claim  of  heir- 
ship was  disputed  by  nephews  and  nieces  of 
Tiebault  claiming  to  be  his  next  of  kin. 
The  result  was  the  commencement  of  pro- 
ceedings in  the  district  court  of  the  United 
States  for  the  district  of  Nebraska  on  the 
part  of  the  adopted  children  to  obtain  m 
recognition  of  their  right  of  heirship,  the 
nephews  and  neices  being  among  the  par- 
ties defendant.  Considerable  testimony  was 
taken,  but  no  decree  was  entered  because* 
by  the  act  of  May  8,  1906  (chap.  2348,  34 
Stat,  at  L.  182),  and  the  act  of  June  25, 
1910  (chap.  431,.  §  1,  36  Stat,  at  L.  855, 
Comp.  Stat.  1913,  §  4226),  it  resulted  that 
the  district  court  was  [206]  without  power 
to  proceed  further,  exclusive  juris^ction 
over  the  subject  having  been  conferred  by 
the  acts  in  question  upon  the  Secretary  of 

241   U.  S. 


1U15. 


LANE  T.  UNITED  STATES  MX 


MICKADIET. 


206-208 


the  Interior.  The  pertinent  provisions  of  the 
act  last  referred  to  are  in  the  margin,  l 

The  theater  of  tlie  controversy  was  there- 
fore, by  the  assent  of  the  parties  and  of  the 
United  States,  transferred  to  the  Interior 
Department,  ^here  testimony  was  begun  be- 
fore an  examiner,  and  the  Secretary  of  the 
Interior,  in  June,  id  13,  entered  an  order 
in  favor  of  the  adopted  children,  holding 
them  to  be  the  lawful  heirs  of  Tiebault,  and 
entitled  under  the  statute  to  the  ownership 
and  enjoyment  of  the  allotted  lands. 

Ihe  Secretary  having  been  given  author- 
ity both  by  the  6th  section  of  the  act  of 
1006  and  by  the  provisions  of  the  act  of 
1910,  which  we  have  quoted,  to  reduce  the 
twenty-five-year  period,  the  recognized  heirs 
applied  for  an  order  terminating  the  trust 
period  and  for  the  issue  to  them  of  a  fee- 
simple  patent.  This  application  was  op- 
posed by  the  next  of  kin,  who  had  been 
parties  to  the  previous  proceeding  as  to  heir- 
ship, and  they  also  asked  [207]  to  be  per- 
mitted to  reopen  the  controversy  as  to  the 
validity  of  the  adoption  and  the  heirship 
resulting  from  it,  on  the  ground  that,  as  the 
result  of  newly  discovered  evidence,  th«)y 
desired  to  show  that  the  Nebraska  decree 
of  adoption  an^  the  previous  administrative 
order  had  been  obtained  by  fraud.  Under 
this  request  it  would  seem  that  considerable 
testimony  was  taken,  but  it  was  never 
acted  upon  because  the  reco^^nised  heirs,  the 
relators,  disputed  the  authority  of  the  Sec- 
retary to  reopen  the  controversy,  on  the 
ground  that  the  previous  departmental  order 
reeognizing  them  as  heirs  was  not  subject  to 
be  reopened  or  reviewed,  and,  in  any  event. 
Chat  the  decree  of  adoption  of  the  Nebraska 
court  was  beyond  the  competency  of  the 
Sedretary  to  review  or  set  aside  even  upon 
the  charges  of  fraud  which  were  made. 
Without  passing  upon  the  merits  involved 
in  the  claim  to  reopen,  or  expressing  any 
opinion  concerning  the  conclusiveness  of  the 
Nebraska  decree,  the  Secretary  granted  the 
application  to  reopen,  and  ordered  the  is- 
sues thereon  to  stand  for  future  considera- 
tion. Thereupon  the  petition  for  manda- 
mus was  filed,  to  which  a  return  was  made, 
alleging  the  facts  to  be  as  we  have  stated 
them,  resulting  in  the  judgment  of  the  court 


below  awarding  the  mandamus  which  is  be- 
fore us  for  review. 

It  is  undoubted  that  the  fee-simple  title 
to  the  land  embraced  by  the  allotment  had 
not  passed  from  the  United  States,  and  that, 
as  expressly  stated  in  the  granting  act,  the 
land  was  held  in  trust  by  the  United  States 
for  the  benefit  of  the  allottees  to  await  the 
expiration  of  the  trust  period  fixed  by  law, 
when  the  duty  on  the  part  of  the  United 
States  of  conveying  the  fee  of  the  land 
would  arise.  It  is  equally  undoubted  un- 
der these  conditions  that  the  land  was  un- 
der the  control,  in  an  administrative  sense, 
01  the  Land  Department  for  the  purpose  of 
carrying  out  the  act  of  Ck>ngress.  As  there 
is  no  dispute,  and  could  be  none,  concern- 
ing the  general  rule  that  courts  have  no 
[208]  power  to  interfere  with  the  perform- 
ance  by  the  Land  Department  of  the  ad- 
ministrative duties  devolving  upon  it,  how- 
ever much  they  may,  when  the  functions  of 
that  Department  are  at  an  end,  correct,  as 
between  proper  parties,  errors  of  law  com- 
mitted in  the  administration  of  the  land 
laws  by  the  Department,  it  must  follow,  un- 
less it  be  that  this  case  by  some  exception 
is  taken  out  of  the  general  rule,  that  there 
was  no  power  in  the  court  below  to  control 
the  action  of  the  Secretary  of  the  Interior, 
and  reversal  therefore  must  follow.  United 
States  V.  Schurs,  102  U.  S.  378,  396,  26  L. 
ed.  167,  17.1;  Brown  v.  Hitchcock,  173  U. 
S.  473,  43  L.  ed.  772,  19  Sup.  Ct.  Rep.  485 ; 
United  Sutes  ex  rel.  Knight  v.  Lane,  228 
U.  S.  6,  67  L.  ed.  709,  33  Sup.  Ct  Rep.  407. 
But,  as  the  court  below  rested  its  conclu- 
sion of  power  solely  upon  the  existence  of 
an  assimied  exception  to  the  general  rule, 
and  as  the  correctness  of  that  view  is  the 
sole  ground  relied  upon  to  sustain  the 
judgment,  that  question  is  the  single  subject 
for  consideration,  and  we  come  to  dippose 
of  it 

The  exception  rests  upon  two  considera- 
tions: (a)  The  want  of  power  of  the 
Secretary  to  reopen  or  reconsider  the  prior 
administrative  order  recognizing  the  re- 
lators as  the  heirs  of  the  deceased  allottee, 
— an  absence  of  authority  which,  it  is 
deemed,  resulted  from  the  provisions  of  the 
act  of  1010  which  we  have  previously  quoted 


1  "That  when  any  Indian  to  whom  an  al- 
lotment of  land  has  been  made,  or  may  here- 
after be  made,  dies  before  the  expiration  of 
the  trust  period  and  before  the  issuance  of 
a  fee-simple  patent,  without  having  made 
a  will  disposing  of  said  allotment  as  here- 
inafter provided,  the  Secretary  of  the  In- 
terior, upon  notice  and  hearing,  under  such 
rules  as  he  may  prescribe,  shall  ascertain 
the  legal  heirs  of  such  decedent,  and  his  de- 
cision thereon  shall  be  final  and  conclusive. 
If  the  Secretary  of  the  Interior  decides  the 
heir  or  heirs  of  such  decedent  competent  to 
•0  li.  ed. 


manage  their  own  affairs,  he  shall  issue  to 
such  Iieir  or  heirs  a  patent  in  fee  for  the 
allotment  of  such  decedent;  if  he  shall  de- 
cide one  or  more  of  the  heirs  to  be  incom- 
f detent,  he  may,  in  his  discretion,  cause  such 
ands  to  be  sold:  Provided,  That  if  the 
Secretary  of  the  Interior  shall  find  that  the* 
lands  of  the  decedent  are  capable  of  parti- 
tion to  the  advantage  of  the  heirs,  he 
may  cause  the  shares  of  such  as  are  com- 
petent, upon  their  petition,  to  be  set  aside 
and  patents  in  fee  to  be  issued  to  them 
therefor." 

f 


208-211 


SUPHEME  COURT  OF  TIIE  UNITED  STATES. 


Oct.  Term, 


in  the  margin;  and  (b)  the  further  absence 
of  all  authority  of  the  Secretary  to  disre- 
gard the  decree  of  adoption  of  the  Nebraska 
court  by  collaterally  questioning  the  same 
in  order  to  deprive  of  the  status  of  adop- 
tion which  that  decree,  it  is  insisted,  had 
conclusively  fixed  as  against  all  the  world 
under  the  law  of  Nebraska. 

(a)  The  first  proceeds  upon  the  theory 
that  the  provision  of  the  act  of  1910  to  the 
effect  that  the  decision  of  the  Secretary 
recognizing  the  heira  of  a  deceased  allottee 
"shall  be  final  and  conclusive"  caused  the 
prior  order  of  the  Secretary,  recognizing  the 
relators  as  heirs,  to  completely  exhaust  his 
power,  and  therefore  to  give  a  character  of 
absolute  finality  to  such  order,  even  al- 
though the  property  [200]  to  which  it  re- 
lated was  yet  in  the  administrative  con- 
trol of  the  Department  because  of  the  trust 
imposed  by  the  law  of  the  United  States  un- 
til the  expiration  of  the  statutory  period. 
But  we  are  of  opinion  that  this  is  a  mis- 
taken view.  The  words  "final  and  conclu- 
sive" describing  the  power  given  to  the 
Secretary  must  be  taken  as  conferring,  and 
not  as  limiting  or  destroying,  that  author- 
ity. In  other  words,  they  must  be  treated 
as  absolutely  excluding  the  right  to  review 
in  the  courts,  as  had  hitherto  been  the  case 
under  the  act  of  1887,  the  question  of  fact 
as  to  who  were  the  heirs  of  an  allottee, 
thereby  causing  that  question  to  become  one 
within  the  final  and  conclusive  competency 
of  the  administrative  authority.  As  it  is  ob- 
vious that  the  right  to  review  on  proper 
charges  of  newly  discovered  evidence  or 
fraud  a  previous  administrative  order  while 
the  property  to  whidi  it  related  was  imder 
administrative  control  was  of  the  very  es- 
sence of  administrative  authority  (Michi- 
gan Land  &  Lumber  Co.  v.  Rust,  168  U.  S. 
580,  42  L.  ed.  591,  18  Sup.  Ct.  Rep.  208),  it 
must  follow  that  the  construction  upheld 
would  not  only  deprive  the  Secretary  of  the 
final  and  conclusive  authority  which  the 
statute  in  its  context  contemplated  he 
should  have,  but  would  indeed  render  the 
administrative  power  conferred  wholly  in- 
adequate for  the  purpose  intended  by  the 
statute.  And  it  must  be  further  apparent 
that  the  inadequacy  of  authority  which  the 
proposition,  if  accepted,  would  bring  about, 
could  not  be  supplied,  since  it  would  come  to 
pass  that,  although  the  property  was  yet  in 
the  control  of  the  United  States  to  carry 
out  the  trust,  there  would  be  an  absence  of 
all  power,  both  in  the  administrative  and 
judicial  tribunals,  to  correct  an  order  once 
rendered,  however  complete  might  be  the 
proof  of  the  fraud  which  had  procured  it. 

But  it  is  said  that  the  purpose  of  the 
statute  was  to  give  the  recognized  heir  a 
status  which  would  entitle  him  to  enjoy 


the  allotted  land,  and  not  to  leave  all  his 
rights  of  [210]  enjoyment  open  to  chang- 
ing decisions  which  might  be  made  during 
the  long  period  of  the  trust  term,  and  thus 
virtually  destroy  the  right  of  property  in 
favor  of  the  heir  which  it  was  the  obvious 
purpose  of  the  statute  to  protect.  But,  in 
last  analysis,  this  is  a  mere  argument  seek- 
ing to  destroy  a  lawful  power  by  the  sug- 
gestion of  a  possible  abuse.  We  say  this  be- 
cause, although  it  be  conceded,  for  the  sake 
of  the  argument  only,  that  an  exercise  of 
power  which  was  plainly  an  abuse  of  discre- 
tion, depriving  of  the  right  which  the  stat- 
ute plainly  gave,  would  be  subject  to  cor- 
rectioz^by.the  courts,  such  concession  would 
be  here  without  influence,  since  there  is  no 
basis  whatever  upon  which  to  rest  an  as- 
sumption of  abuse  of  discretion. 

(b)  So  far  as  the  Nebraska  decree  is  con- 
cerned, the  mistake  upon  which  the  proposi- 
tion proceeds  is  obvious;  since,  conceding 
the  premise  upon  which  it  must  rest  to  be 
well  founded,  it  affords  no  ground  for  pre- 
venting by  judicial  action  the  exercise  by 
the  Secretary  of  his  power  to  determine  the 
legal  heirs,  and  in  doing  so  to  ascertain 
the  existence  of  the  Nebraska  judgment, 
the  jurisdiction  ratume  matericB  of  the 
court  by  which  it  was  rendered,  and  the 
legal  effect  which  it  was  entitled  to  receive 
under  the  law  of  Nebraska. 

There  was  a  suggestion  in  argument, 
which  it  was  conceded  was  not  made  in  the 
courts  below,  of  an  absolute  want  of  juris- 
diction upon  the  theory  that,  as  the  title  of 
the  allotted  property  was  yet  in  the  United 
States  for  the  purposes  of  the  trust,  there 
could  in  any  event  be  no  jurisdiction  over 
the  cause,  since,  in  substance  and  effect,  it 
was  a  suit  against  the  United  States.  As, 
however,  the  considerations  involved  in  this 
proposition  were  absolutely  coincident  with 
those  required  to  be  taken  into  view  in  or- 
der to  determine  the  power  of  the  Secretary, 
we  have  not  deemed  it  necessary  to  specially 
consider  the  subject. 

It  follows  from  what  we  have  said  that 
the  court  below  was  without  jurisdiction  to 
control  the  conduct  of  the  [2 11]. Secretary 
concerning  a  matter  within  the  administra- 
tive authority  of  that  officer,  and  therefore 
that  the  mandamus  was  wrongfully  al- 
lowed, and  the  judgment  awarding  it  must 
be  and  it  is  reversed  and  the  case  remanded 
with  directions  to  affirm  the  judgment  of 
the  Supreme  Court  of  the  District  of  Co- 
lumbia, dismissing  the  petition  for  a  writ 
of  mandamus. 

Reversed. 

Mr.  Justice  McReynolds  took  no  part  in 
the  consideration  and  decision  of  this  case, 

141  V.  S. 


1915. 


MINNEAPOLIS  A  ST.  L.  R.  CO.  y.  BOMBOLIS. 


211 


MINNEAPOLIS  k  ST.  LOUIS  RAILROAD 

COMPANY,  FIB.  in  Err., 

▼. 

OEORGE  BOMBOLIS,  as  Administrator  of 
the  Estate  of  Constantine  Nanos,  alias 
Gust  Nanos,  Deceased. 

(See  S.  C.  Reporter's  ed.  211-223.) 

JxkTj  —  fnfrlnicement  of  right  —  non- 
vnanfmons  verdict  —  action  under 
Federnl  statute. 

Tlie  requirement  of  U.  S.  Const.,  7th 

Amend.,  tliat  trials  by  jury  be  according 

to  the  course  of  the  common  law,  i.  e.,  by 

Jt  unanimous  verdict,  does  not  control  the 

state    courts,   even    when    enforcing    rights 

under  a  Federal  statute  like  the  employers' 

liability  act  of  April  22,  1008   (35  Stat,  at 

L.  65,  chap.  149,  Comp.  Stat.  1913,  §  8657), 

and  such  courts  may,  therefore,  give  effect 

in   actions  under   that   statute  to  a   local 

practice  permit  ting  a  less  than  unanimous 

verdict. 

IFor  other  cnnen,  see  Jury,  L  d,  2,  in  Digest 
SuR.    Ct.   1908.] 

[No.  478.] 

Argued   and    submitted   April    10   and   20, 
1916.     Decided  May  22,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Minnesota  to  review  a  judg- 
ment which,  on  a  second  appeal,  alDrmed 
4k  judgment  of  the  District  Court  of  Henne- 
pin County,  in  that  state,  in  favor  of  plain- 
tiff in  an  action  for  death,  brought  under 
the  Federal  employers'  liability  act  Af- 
firmed. 

See  same  ease  below,  on  first  appeal,  128 
Minn.  112,  150  N.  W.  385. 

The  facts  are  stated  in  the  opinion. 

Mr.  Frederick  M.  Miner  argued  the 
«au8e,  and,  with  Mr.  William  H.  Bremner, 
filed  a  brief  for  plaintiff  in  error: 

The  riglit  of  trial  by  jury  which  is 
secured  to  all  persons  subject  to  the  juris- 
diction of  the  United  States,  by  the  pro- 
visions of  the  7th  Amendment,  means  a 
jury  of  twelve  men,  who  must,  in  finding 
facts,  act  unanimously. . 

American  Pub.  Co.  v.  Fisher,  166  U.  S. 
464,  41  L.  ed.  1079,  17  Sup.  Ct.  Rep.  618; 
Springville  v.  Thomas,  166  U.  S.  707,  41 
L.  ed.  1172,  17  Sup.  Ct.  Rep.  717;  Capital 
Traction  Co.  v.  Hof,  174  U.  S.  1,  43  L.  ed. 
fi73,  19  Sup.  Ct.  Rep.  580. 

Note. — On  number  and  agreement  of 
jurors  necessary  to  constitute  a  valid  ver- 
dict— see  notes  to  State  v.  Bates,  43  L.R.A. 
33,  and  Silsby  v.  Foote,  14  L.  ed.  U.  S.  394. 

On  the  constitutionality,  application,  and 
effect  of  the  Federal  employers'  liability 
Act — see  notes  to  Lamphere  v.  Oregon  R.  k 
Nav.  Oo.  47  L.R.A.  rN.S.)  38,  and  Seaboard 
Air  Line  R.  Co.  v.  Uorton,  UftJL  1915C,  47. 
40  I«.  ML 


The  right  which  is  secured  by  the  7th 
Amendment  is  not  a  matter  of  procedure, 
but  of  substance,  and  one  possessing  such 
right  cannot  be  deprived  of  the  same  by 
any  means  short  of  an  amendment  to  the 
Constitution  of  the  United  States. 

Walker  v.  New  Mexico  &  S.  P.  R.  Co. 
165  U.  S.  593,  41  L.  ed.  837,  17  Sup.  Ct. 
Rep.  421,  1  Am.  Neg.  Rep.  768;  American 
Pub.  Co.  V.  Fisher,  166  U.  S.  464,  41  L.  ed. 
1079,  17  Sup.  Ct.  Rep.  618;  Springville  v. 
Thomas,  supra;  Slocum  v.  New  York  L.  Ins. 
Co.  228  U.  S.  364,  57  L.  ed.  879,  33  Sup. 
Ct.  Rep.  523,  Ann.  Cas.  1914D,  1029. 

The  7th  Amendment  is  a  limitation  upon 
all  of  the  powers  delegated  by  the  Consti- 
tution to  those  agencies  which  comprise  the 
government  of  the  United  States;  there- 
fore, not  only  the  courts,  but  the  legislature 
of  the  United  States,  is  limited  by  this 
Amendment,  and  the  right  secured  thereby 
enters  into  and  controls  all  suits  founded 
upon  legislation  enacted  by  Congress  in 
whatever  court  the  same  may  be  brought, 
where  such  court  sits  and  exercises  power 
within  the  domain  of  the  tjnited  States. 

Walker  v.  New  Mexico  &  S.  P.  R.  Go. 
165  U.  S.  595,  41  L.  ed.  840,  17  Sup.  Ct. 
Rep.  421,  1  Am.  Neg.  Rep.  768;  American 
Pub.  Co.  V.  Fisher,  166  U.  S.  464,  41  L.  ed. 
1079,  17  Sup.  Ct.  Rep.  618;  Springville  v. 
Thomas,  166  U.  S.  707,  41  L.  ed.  1172,  17 
Sup.  Ct.  Rep.  717;  Bauman  v.  Ross,  167 
U.  S.  592,  42  L.  ed.  289,  17  Sup.  Ct.  Rep. 
066;  Thompson  v.  Utah,  170  U.  S.  343-350, 
42  L.  ed.  1061-1066,  18  Sup.  Ct.  Rep.  620; 
Guthrie  Nat.  Bank  v.  Guthrie,  179  U.  S. 
528-537,  43  L.  ed.  796-800,  19  Sup.  Ct. 
Rep.  513;  CapiUl  Traction  Co.  v.  Hof,  174 
U.  S.  1,  43  L.  ed.  873,  19  Sup.  Ct.  Rep.  580; 
Maxwell  v.  Dow,  176  U.  S.  581,  596,  44  L. 
ed.  597,  603,  20  Sup.  Ct.  Rep.  448,  494; 
Black  V.  Jackson,  177  U.  S.  349,  44  L.  ed. 
801,  20  Sup.  Ct.  Rep.  648;  Downes  v.  Bid- 
well,  182  U.  S.  244,  270,  45  L.  ed.  1088, 
1100,  21  Sup.  Ct.  Rep.  770;  Rassmussen  v. 
United  States,  197  U.  S.  516-526.  49  L.  ed. 
862-865,  25  Sup.  Ct.  Rep.  514;  Second  Em- 
ployers' Liability  Cases  (Mondou  v.  New 
York,  N.  H.  &  H.  R.  Co.)  223  U.  S.  1,  55, 
57,  56  L.  ed.  327,  348,  349,  38  L.R.A.(N.S.) 
44,  32  Sup.  Ct  Rep.  169,  1  N.  C.  C.  A.  875; 
Slocum  V.  New  York  L.  Ins.  Co.  228  U.  S. 
304,  377,  57  L.  ed.  879,  885,  33  Sup.  Ct. 
Rep.  523,  Ann.  Cas.  1914D,  1029;  Central 
Vermont  R.  Co.  v.  White,  238  U.  S.  507,  59 
L.  ed.  1433,  35  Sup.  Ct.  Rep.  865,  9  N.  C. 
C.  A.  265,  Ann.  Cas.  1916B,  252;  Atlantic 
Coast  Line  R.  Co.  v.  Bufnette,  239  U.  S. 
199,  ante,  226,  36  Sup.  Ct.  Rep.  75. 

A  state  court  can  derive  no  authority 
from  the  power  which  creates  it  to  adjudi- 
cate controversies  based  upon  the  Federal 
act. 

ei  tti 


216 


8UPBSMB  OOUBT  OF  THB  UNITED  SXATSa 


Oct.  Tknif 


Ableman  y.  Booth,  21  How.  506,  16  L.  ed. 
169;  Leyin  y.  United  States,  68  0.  0.  A. 
476, 128  Fed.  826. 

The  principles  of  law  eomprised  within 
the  tenn  "eomity,"  hj  which  courts  enter- 
tain controyersies  inyolying  rights  created 
by  Boyereign  power,  other  than  that  which 
created  such  courts,  do  not  afford  the  basis 
or  ground  upon  which  state  courts  maj  ex- 
ercise their  powers  in  controyersies  founded 
upon  the  Federal  act. 

Claflin  y.  Houseman,  93  U.  S.  130,  23  L. 
ed.  833;  Second  Employers'  Liability  Gases 
(Mondou  y.  New  York,  N.  H.  &  H.  R.  Ck>.) 
223  U.  S.  1,  66  L.  ed.  827,  38  LJIA.(N.S.) 
44,  82  Sup.  Ct.  Rep.  169,  1  N.  G.  G.  A.  875. 

The  dictum  of  District  Judge  Whitson,  to 
the  effect  that  the  principle  of  comity  by 
analogy  may  be  inyolyed  in  this  question, 
is  evidently  inadmissible,  and,  with  due 
respect,  seems  to  inyolye  a  contradiction. 

Zilcos  y.  Oregon  R.  k  Nay.  Go.  179  Fed. 
893. 

When  It,  "comity,"  is  the  basis  of 
judicial  determination,  the  court  extending 
the  comity  out  of  fayor  and  good  will  ex- 
tends to  foreign  laws  an  effect  they  would 
not  otherwise  haye. 

Stowe  y.  Belfast  Say.  Bank,  92  Fed.  90. 

But  its  obligation  is  not  imperative. 

Mast,  F.  &  Go.  y.  Stover  Mfg.  Go.  177 
U.  S.  485,  44  Lb  ed.  856,  20  Sup.  Gt.  Rep. 
708. 

Gomity  in  the  legal  sense  is  neither  a 
matter  of  absolute  obligation,  on  the  one 
hand,  nor  of  mere  courtesy  and  good  will, 
on  the  other,  but  is  the  recognition  which 
one  nation  allows  within  its  territory,  to 
the  legislative,  executive,  or  judicial  acts 
of  another  nation,  having  due  regard  both 
to  international  duty  and  convenience  and 
to  the  rights  of  its  own  citizens,  who  are 
under  the  protection  of  its  laws. 

Hilton  y.  Guyot,  159  U.  S.  113,  40  L.  ed. 
95,  16  Sup.  Gt.  Rep.  139. 

It  is  the  voluntary  act  of  the  nation  by 
which  it  is  offered,  and  is  inadmissible 
when  contrary  to  its  policy  or  prejudicial  to 
its  interests. 

People  v.  Martin,  175  N.  Y.  315,  06  Am. 
St.  Rep.  628,  67  N.  £.  589,  15  Am.  Grim. 
Rep.  591. 

To  say  that  a  state  court  obeys  the  Gon- 
stitution  of  the  United  States,  or  a  law 
made  pursuant  thereto,  as  a  voluntary  act, 
or  as  a  matter  of  convenience  and  expedi- 
ency, would  be  absurd,  and  involve  a  con- 
tradiction in  terms. 

Ableman  v.  Booth,  21  How.  506,  516,  16 
L.  ed.  169,  173. 

Gongress,  in  the  legitimate  exercise  of  the 
power  conferred  upon  it,  may  withhold 
jurisdiction  to  try  causes  founded  upon 
laws  passed  by  it,  or  oan  confer  exclusive 


jurisdiction  with  respect  to  such  matten 
upon  the  Federal  courts. 

Glaflin  y.  Houseman,  supra;  The  Mosst 
Taylor,  4  Wall  411,  18  L.  ed.  397. 

State  courts,  in  dbciding  oontroversiss 
founded  upon  this  act,  are  applying  the 
judicial  power  of  the  United  States;  and 
if  it  be  held  that  the  7th  Amendment  is  a 
limitation  only  upon  that  power,  state 
courts  could  not  enforce  such  power  apart 
from  the  limitation  of  the  said  Amendment. 

M'GuUoch  y.  Maryland,  4  Wheat  816,  4 
L.  ed.  579;  Gohen  v.  Virginia,  6  Wheat.  Hi^ 
5  L.  ed.  293. 

The  judicial  power  of  the  United  Statsa 
is  coextensive  with  its  legislatiye  power. 

Gohen  v.  Virginia,  supra. 

If  a  case  is  not  within  the  judicial  power 
of  the  United  States  an  appeal  will  not  lie 
to  this  court,  for  it  is  s^-evident  that  one 
sovereign  power  cannot  exercise  superyiaioB 
over  the  judiciary  of  another. 

Martin  y.  Hunter,  1  Wheat.  804,  4  L.  ed. 
97;  Gohen  y.  Virginia,  supra. 

A  substantive  right  or  defense  arising 
under  the  Federal  law  cannot  be  lessened 
or  destroyed,  by  a  rule  of  procedure. 

Norfolk  Southern  R.  Go.  y.  Ferebee,  238 
U.  S.  269,  59  L.  ed.  1303,  35  Sup.  Gt.  Rep. 
781. 

Messrs.  Frederick  M.  Miner  and  William 
H.  Bremner  also  united  in  a  joint  brief  filed 
in  behalf  of  plaintiff  in  error  in  Ghesapeake 
A  0.  R.  Go.  y.  Kelly,  post,  1117. 

Mr.  George  B.  Leonard  for  defendant  in 
error.  For  his  contentions,  see  joint  brief 
filed  in  behalf  of  defendant  in  error  in 
Ghesapeake  &  0.  R.  Go.  v.  Kelly,  poet,  1117.^ 

Mr.  Ghief  Justice  White  delivered  the 
opinion  of  the  court: 

Gounting  upon  the  employers'  liability  set 
of  1908  (chap.  149,  35  SUt.  at  L.  65),  as 
amended  by  the  act  of  1910  (chap.  143,  3d 
Stat,  at  L.  291,  Gomp.  SUt  1913,  |  8662),^ 
the  defendant  in  error  sued  in  a  state  court 
to  recover  for  the  loss  resulting  from  the 
death  of  Nanos,  his  intestate,  alleged  to 
have  been  occasioned  by  the  negligence  of 
the  plaintiff  in  error  while  he,  Nanos,  wss 
in  its  employ  and  engaged  in  interstate 
commerce. 

Whatever  may  have  been  the  controver* 
sies  in  the  trial  court  prior  to  the  verdiet 
of  the  jury  in  favor  of  the  plaintiff,  and 
the  contentions  which  were  unsuccessful!/ 
urged  in  the  court  below  to  secure  a  re* 
versal  of  the  judgment  entered  thereon,  oa 
this  writ  of  error  they  have  all  but  one  bee» 
abandoned,  and  hence  haye  all  but  one  be> 
come  negligible.  As  the  one  question  here 
remaining  was  also  involved  in  five  other 
cases  pending  under  the  employers'  liabilitX 

141  U.  8- 


1916. 


MINNEAPOUS  &  8T.  L.  R.  CO.  ▼.  BOMBOLI& 


215-218 


act  on  writs  of  error  to  the  courts  of  last 
resort  of  Virginia,  Kentucky,  and  Oklahoma, 
those  cases  and  this  were  argued  together. 
As  the  other  cases,  however,  involve  addi- 
tional questions,  we  dispose  separately  of 
this  case  in  order  to  decide  in  this  the  one 
question  which  is  common  to  them  all,  and 
thus  enable  the  other  cases,  [2 16 J  if  we 
deem  it  is  necessary  to  do  so,  to  be  treated 
in  separate  opinions 

By  the  Constitution  and  laws  of  Minne- 
■ota  in  civil  causes,  after  a  case  has  been 
under  submission  to  a  jury  for  a  period  of 
twelve  hours  without  a  unanimous  verdict, 
five  sixths  of  the  jury  are  authorized  to 
reach  a  verdict,  which  is  entitled  to  the 
legal  effect  of  a  unanimous  verdict  at  com- 
mon law.  When  in  the  trial  of  this  ease 
the  court  instructed  the  jury  as  to  their 
right  to  render  a  verdict  under  such  cir- 
cumstances, the  defendant  company  object- 
ed on  the  ground  that,  as  the  cause  of  ac- 
tion against  it  arose  under  the  Federal 
employers'  liability  act, — in  other  words, 
was  Federal  in  character, — the  defendant 
was  by  the  7th  Amendment  to  the  Consti- 
tution of  the  United  States  entitled  to  have 
its  liability  determined  by  a  jury  consti- 
tuted and  reaching  its  conclusion  according 
to  the  course  of  the  common  law,  and  hence 
to  apply  the  state  statute  would  be  repug- 
nant to  the  7th  Amendment.  This  objec- 
tion, which  was  overruled  and  excepted  to, 
was  assigned  as  error  in  the  court  below, 
was  there  adversely  disposed  of  (128  Minn. 
112,  150  N.  W.  385),  and  the  alleged  re- 
sulting error  concerning  such  action  is  the 
one  question  which,  we  have  said,  is  now 
urged  for  reversal. 

It  has  been  so  long  and  so  conclusively 
settled  that  the  7th  Amendment  exacts  a 
trial  by  jury  according  to  the  course  of  the 
common  law,  that  is,  by  a  unanimous  ver- 
dict (American  Pub.  Co.  v.  Fisher,  166  U. 
8.  464,  41  L.  ed.  1070,  17  Sup.  Ct.  Rep. 
618;  Springville  v.  Thomas,  166  U.  8.  707, 
41  L.  ed.  1172,  17  Sup.  Ct.  Rep.  717;  Capi- 
tal Traction  Co.  v.  Ilof,  174  U.  S.  1,  43 
L.  ed.  873,  19  Sup.  Ct.  Rep.  580),  that  it 
is  not  now  open  in  the  slightest  to  question 
that  if  the  requirements  of  that  Amend- 
ment applied  to  the  action  of  the  state  of 
Minnesota  in  adopting  the  statute  concern- 
ing a  less  than  unanimous  verdict,  or  con- 
trolled the  state  court  in  enforcing  that 
statute  in  the  trial  which  is  under  review, 
both  the  statute  and  the  action  of  the  court 
were  void  because  of  repugnancy  to  the  Con- 
stitution of  the  United  States.  The  one 
[217]  question  to  be  decided  is  therefore 
reduced  to  this:  Did  the  7th  Amendment 
apply  to  the  action  of  the  state  l^slature 
and  to  the  conduct  of  the  state  court  in 
enforcing  at  the  trial  the  law  of  the  state 
•0  li.  ed. 


as  to  what  was  necessary  to  constitute  a 
verdict  ? 

Two  propositions  as  to  the  operation  and 
effect  of  the  7th  Amendment  are  as  con- 
clusively determined  as  is  that  concerning 
the  nature  and  character  of  the  jury  re- 
quired by  that  Amendment  where  applica- 
ble, (a)  That  the  first  ten  Amendments, 
including,  of  course,  the  7th,  are  not  con- 
cerned with  state  action,  and  deal  only  with 
Federal  action.  We  select  from  a  multitude 
of  cases  those  which  we  deem  to  be  leading: 
Barron  v.  Baltimore,  7  Pet.  243,  8  L.  ed. 
872;  Fox  V.  Ohio,  5  How.  410,  434,  12  L. 
ed.  213,  223;  Twitchell  v.  Pennsylvania,  7 
Wall.  321,  19  L.  ed.  223;  Brown  v.  New 
Jersey,  175  U.  8.  172,  174,  44  L.  ed.  110, 
120,  20  Sup.  Ct.  Rep.  77;  Twining  v.  New 
Jersey,  211  U.  S.  78,  93,  63  L.  ed.  97,  103. 
And,  as  a  necessary  corollary,  (b)  that 
the  7th  Amendment  applies  only  to  pro- 
ceedings in  courts  of  the  United  States,  and 
does  not  in  any  manner  whatever  govern  or 
regulate  trials  by  jury  in  state  courts,  or 
the  standards  •which  must  be  applied  con- 
cerning the  same.  Livingston  v.  Moore,  7 
Pet.  469,  552,  8  L.  ed.  751,  781;  Supreme 
Justice  v.  Murray  (Supreme  Justice  v. 
United  States)  9  Wall.  274,  19  L.  ed.  658; 
Edwards  v.  Elliott,  21  Wall.  532,  22  L.  ed. 
487;  Walker  v.  Sauvinet,  92  U.  S.  90,  23 
L.  ed.  678;  Pearson  v.  Yewdall,  95  U.  S. 
294,  24  L.  ed.  436.  So  completely  and  con- 
clusively have  both  of  these  principles  been 
settled,  so  expressly  have  they  been  recog- 
nized without  dissent  or  question  almost 
from  the  beginning  in  the  accepted  inter- 
pretation of  the  Constitution,  in  the  enact- 
ment of  laws  by  Congress  and  proceedings 
in  the  Federal  courts,  and  by  state  Con- 
stitutions and  state  enactments  and  pro- 
ceedings in  the  state  courts,  that  it  is  true 
.to  say  that  to  concede  that  they  are  open  , 
to  contention  would  be  to  grant  that  noth- 
ing whatever  had  been  settled  as  to  the 
power  of  state  and  Federal  governments  or 
the  authority  of  state  and  Federal  courts  and 
their  mode  of  procedure  from  the  beginning. 
Doubtless  it  was  [218]  this  view  of  the 
contention  which  led  the  supreme  court  of 
Minnesota  in  this  case  and  the  courts  of 
last  resort  of  the  other  states  in  the  cases 
which  were  argued  wiih  this  to  coincide  in 
opinion  as  to  the  entire  want  of  founda- 
tion for  the  proposition  relied  upon,  and 
in  the  conclusion  that  to  advance  it  was 
virtually  to  attempt  to  question  the  entire 
course  of  judicial  ruling  and  legislative 
practice,  both  state  and  national,  which  had 
prevailed  from  the  commencement.  And  it 
was,  of  course,  presumably  an  appreciation 
of  the  principles  so  thoroughly  settled  which 
caused  Congress,  in  the  enactment  of  the 
employers'  liability  act,  to  dearly  content* 


218-220 


SUPREME  (X)URT  OF  THE  UNITED  STATES. 


Oct.  Tkuc, 


pl&te  the  existence  of  »  concurrent  power 
and  duty  of  both  Federal  and  state  courts 
to  administer  the  rights  conferred  b/  the 
statute  in  accordance  with  the  modes  of 
procedure  prevailing  in  such  courts.  In- 
deed, it  may  not  be  doubted  that  it  must 
have  been  the  same  point  of  view  which  has 
caused  it  to  come  to  pass  that  during  the 
number  of  years  which  have  elapsed  since 
the  enactment  of  the  employers'  liability  act 
and  the  safety  appliance  act,  and  in  the 
large  number  of  cases  which  have  been 
tried  in  state  courts,  growing  out  of  the 
rights  conferred  by  those  acts,  the  judg- 
ments in  many  of  such  cases  having  been 
here  reviewed,  it  never  entered  the  mind  of 
anyone  to  suggest  the  new  and  strange  view 
concerning  the  significance  and  operation  of 
the  7th  Amendment  which  was  urged  in 
this  case  and  the  cases  which  were  argued 
with  it 

Under  these  circumstances  it  would  be 
sufficient  to  leave  the  unsoundness  of  the 
proposition  to  the  demonstration  to  result 
from  the  application  of  the  previous  au- 
thoritative rulings  on  the  subject,  and  the 
force  of  the  reasoning  inherently  considered 
upon  which  they  were  based,  as  also  upon 
its  convincing  power  so  aptly  portrayed  by 
the  opinions  of  the  courts  below  in  this  and 
the  other  cases  which  we  have  said  were  ar- 
gued along  with  this.  Chesapeake  k  0.  R.  Co. 
Y.  Camahan,  —  Va.  — ,  86  S.  E.  863;  Chesa- 
peake A  O.  [219]  R.  Co.  y.  Kelly,  160  Ky. 
296,  160  S.  W.  736,  161  Ky.  665,  171  S. 
W.  186;  Louisville  k  N.  R.  Co.  y.  Stewart, 
163  Ky.  823.  174  8.  W.  744;  St.  Louis  &  S. 
F.  R.  Co.  V.  Brown,  —  Okla.  — ,  144  Pac. 
1075.  In  view,  however,  of  the  grave  mis- 
conception of  the  very  fundamentals  of  our 
constitutional  system  of  government  which 
is  involved  in  the  proposition  relied  upon 
and  the  arguments  seeking  to  maintain  it, 
and  the  misapplication  of  the  adjudged  cases 
upon  which  the  arguments  rest,  while  not 
implying  that  the  question  is  an  open  one, 
we  nevertheless  notice  a  few  of  the  princi- 
pal propositions  relied  upon. 

1.  It  is  true,  as  pointed  out  in  Walker  v. 
New  Mexico  &  8.  P.  R.  Co.  165  U.  S.  603, 
41  L.  ed.  837,  17  Sup.  Ct  Rep.  421,  1  Am. 
Keg.  Rep.  768,  and  in  American  Pub.  Co. 
V.  Fisher,  166  U.  S.  464,  41  L.  ed.  1070, 
17  Sup.  Ct.  Rep.  618,  that  the  right  to  jury 
trial  which  the  7th  Amendment  secures  is 
a  substantial  one  in  that  it  exacts  a  sub- 
fltaatial  compliance  with  the  common-law 
standard  as  to  what  constitutes  a  jury. 
But  this  truth  has  not  the  slightest  ten- 
•dency  to  support  the  contention  that  the 
substantial  right  secured  extends  to,  and 
is  operative  in,  a  field  to  which  It  k  not  ap- 
plicable and  with  which  it  is  not  Ccncemed. 
•64 


It  is  also  true,  as  pointed  out  in  the  cases 
just  cited,  that  altiiough  territorial  courts 
of  the  United  States  are  not  constitutional 
courts,  nevertheless,  as  they  are  courts 
created  by  Congress,  and  exercise  jurisdic- 
tion alone  by  virtue  of  power  conferred  by 
the  law  of  the  United  States,  the  provisions 
of  the  7th  Amendment  are  applicable  in 
such  courts.  But  this  affords  no  ground  for 
the  proposition  that  the  Amendment  is  ap- 
plicable and  controlling  in  proceedings  in 
state  courts  deriving  their  authority  from 
state  law,  in  the  teeth  of  the  express  and 
settled  doctrine  that  the  Amendment  does 
not  relate  to  proceedings  in  such  courts. 

2.  The  proposition  that,  as  the  7th 
Amendment  is  controlling  upon  Congress, 
its  provisions  must  therefore  be  applicable 
to  every  right  of  a  Federal  character  created 
by  Congress,  and  regulate  the  enforcement 
of  [220]  such  right,  but  in  substance 
creates  a  confusion  by  which  the  true  sig- 
nificance of  the  Amendment  is  obscured. 
That  is,  it  shuts  out  of  view  the  fact  that 
the  limitations  of  the  Amendment  are  ap- 
plicable only  to  the  mode  in  which  power 
or  jurisdiction  shall  be  exercised  in  tribu- 
nals of  the  United  States,  and  therefore 
that  its  terms  have  no  relation  whatever  to 
the  enforcement  of  rights  in  other  forums 
merely  because  the  right  enforced  is  one  con- 
ferred by  the  law  of  the  United  States. 
And  of  course  it  is  apparent  that  to  apply 
the  constitutional  provision  to  a  condition 
to  which  it  is  not  applicable  would  be  not 
to  interpret  and  enforce  the  Constitution, 
but  to  distort  and  destroy  it. 

Indeed,  the  truth  of  this  view  and  the 
profound  error  involved  in  the  contention 
relied  upon  is  aptly  shown  by  the  further 
propositions  advanced  in  argument  and 
based  upon  the  premise  insisted  upon.  Thus, 
it  is  urged  that  if  the  limitation  of  the 
Amendment  applies  to  Congress  so  as  to 
prevent  that  body  from  creating  a  court 
and  giving  it  power  to  act  free  from  the  re- 
straints of  the  Amendment,  it  must  also 
apply,  unless  the  substance  is  to  be  disre- 
gaided  and  the  shadow  be  made  controlling, 
to  the  power  of  Congress  to  create  a  right 
and  leave  the  power  to  enforce  it  in  a  forum 
to  which  tlie  constitutional  limitation  is  not 
applicable.  But  this  again  enlarges  the 
Amendment  by  causing  it  not  merely  to  put 
a  limitation  upon  the  power  of  Congress  as 
to  the  courts,  constitutional  or  otherwise, 
which  it  deems  lit  to  create,  but  to  engraft 
upon  the  power  of  Congress  a  limitation  as 
to  every  right  of  every  character  and  nature 
which  it  may  create,  or,  what  is  equivalent 
thereto,  to  cast  upon  Congress  the  duty  of 
subjecting  every  right  created  by  it  to  a 

241  V.  S. 


1015. 


MINNEAPOLIS  k  ST.  L.  R.  CO.  y.  B0M60LIS. 


220-223 


limitation  that  such  right  shall  not  be  sus- 
ceptible of  being  enforced  in  any  court 
whatever,  whether  created  by  Congress  or 
not,  unless  the  court  enforcing  tiie  right 
becomes  bound  by  the  restriction  which  the 
Amendment  establishes.  It  is  [221]  true 
that  the  argument  does  not  squarely  face  the 
contention  to  which  it  reduces  itself,  since 
it  is  conceded  that  rights  conferred  by  Con- 
gress, as  in  this  case,  may  be  enforced  in 
state  courts;  but  it  is  said  this  can  only 
be  provided  such  courts,  in  enforcing  the 
Federal  right,  are  to  be  treated  as  Fed- 
eral courts,  and  be  subjected  pro  hcte  vice 
to  the  limitations  of  the  7th  Amendment. 
And,  of  course,  if  this  principle  were  well 
founded,  the  converse  would  also  be  the 
case,  and  both  Federal  and  state  courts 
would,  by  fluctuating  hybridization,  be  be- 
reft of  all  real,  independent  existence.  That 
is  to  say,  whether  they  should  be  consid- 
ered as  state  or  as  Federal  courts  would 
from  day  to  day  depend  not  upon  the  char- 
acter and  source  of  the  authority  with  which 
they  were  endowed  by  the  government  creat- 
ing them,  but  upon  the  mere  subject-mat- 
ter of  the  controversy  which  they  were  con- 
sidering. 

But  here  again  the  error  of  the  proposi- 
tion is  completely  demonstrated  by  previous 
adjudications.    Martin  ▼.  Hunter,  1  Wheat. 
304,  330,  4  L.  ed.  07,  103;  Houston  v.  Moore, 
6   Wheat.    1,   27,  28,  5   L.  ed.   10,  25;    £x 
parte  McNiel,  13  Wall.  236,  243,  20  L.  ed. 
624,   626;    Claflin   ▼.   Houseman,   03   U.   S. 
130,  23  L.  ed.  833;   Robertson  y.  Baldwin, 
165  U.  S.  275,  41  L.  ed.  715,  17  Sup.  Ct. 
Rep.     326;     Second     Employers'    Liability 
Cases    (Mondou  y.  New  York,  N.  H.  k  H. 
R.  Co.)   223  U.  S.  1,  55-50,  56  L.  ed.  327, 
348-350,   38  L.R.A.(N.S.)    44,  32   Sup.  Ct. 
Rep.   160,   1   N.   C.   C.   A.   875.     Moreover, 
the  proposition  is  in  conflict  with  an  essen- 
tial principle  upon  which  our  dual  consti- 
tutional system  of  government  rests;  that 
is,  that  lawful  rights  of  the  citizen,  whether 
arising  from  a  legitimate  exercise  of  state 
or  national  power,  unless  excepted  by  ex- 
press constitutional  limitation  or  by  valid 
l^islation  to  that  effect,  are  concurrently 
subject  to  be  enforced  in  the  courts  of  the 
state  or  nation  when  such  rights  come  with- 
in the  general  scope  of  the  jurisdiction  con- 
ferred upon  such  courts  by  the  authority, 
state  or  nation,  creating  them.     This  prin- 
ciple was  made  the  basis  of  the  first  Federal 
judiciary  act,  and  has  prevailed  in  theory 
and  practice  ever  since  as  to  rights  of  every 
character,   whether   derived   from   constitu- 1 
tional  grant  or  legislative  [222]  enactment, 
state  or  national.    In  fact,  this  theory  and' 
•O  Ij.  ed. 


practice  is  but  an  expression  of  the  princi- 
ples underlying  the  Constitution,  and  which 
cause  the  governments  and  courts  of  both 
the  nation  and  <he  several  states  not  to  be 
strange   or   foreign   to   each   other   in   the 
broad   sense  of  that  word,  but   to  be   all 
courts  of  a  common  country,  all  within  the 
orbit  of  their  lawful  authority  being  charged 
with  the  duty  to  safeguard  and  enforce  the 
right  of  every  citizen  without  reference  to 
the    particular    exercise    of    governmental 
power    from    which    the    right    may    havs 
arisen,  if  only  the  authority  to  enforce  such 
right  comes  generally  within  the  scope  of 
the   jurisdiction   conferred   by  the  govern- 
ment creating  them.     And  it  is  a  forget- 
fulness  of  this  truth  which  doubtless  led  to 
the  suggestion  made  in  the  argument  thai 
the  ruling  in  Second  Employer's  Liability 
Cases   (Mondou  v.  New  York,  N.  H.  k  H. 
R.   Co.)    223   U.   S.   1,   56   L.   ed.   327,  3» 
L.R.A.(N.S.)    44,  32  Sup.  Ct.  Rep.   160,   1 
N.  C.  C.  A.  875,  had  overthrown  the  ancient 
and  settled  landmarks  and  had  caused  state 
courts    to   become    courts    of    the    United 
States,  exercising  a  jurisdiction  conferred 
by  Congress,  whenever  the  duty  was  cast 
upon  them  to  enforce  a  Federal  right.    It  is 
true  in  the  Mondou  Case  it  was  held  that 
where  the  general  jurisdiction  conferred  by 
the  state  law  upon  a  state  court  embraced 
otherwise  causes  of  action  created  by  an  act 
of  Congress,  it  would  be  a  violation  of  duty 
under  the  Constitution  for  the  court  to  re* 
fuse  to  enforce  the  right  arising  from  the 
law  of  the  United  States  because  of  con- 
ceptions of  impolicy  or-  want  of  wisdom  on 
the  part  of  Congress  in  having  called  into 
play  its  lawful  powers.     But  that  ruling 
in  no  sense  implied  that  the  duty  which  was 
declared  to  exist  on  the  part  of  the  state 
court  depended  upon  the  conception   that, 
for  the  purpose  of  enforcing  the  right,  the 
state  court  was  to  be  treated  as  a  Federal 
court,  deriving  its  authority  not  from  the 
state    creating    it,    but    from    the    United 
States.    On  the  contrary,  the  principle  upon 
which  the  Mondou  Case  rested,  while  not 
questioning  the  diverse  governmental  sources 
from     [223]     which    state    and    national 
courts  drew  their  authority,  recognized  the 
unity    of    the    governments,    national    and 
state,  and  the  common  fealty  of  all  courts, 
both  state  and  national,  to  both  state  and 
national  Constitutions,  and  the  duty  rest- 
ing upon  them,  when  it  was  within  the  scope 
of  their  authority,  to  protect  and  enforce 
rights  lawfully  created,  without  reference 
to  the  particular  government  from  whose 
exercise  of  lawful  power  the  right  arose. 
Affirmed. 


SUFREMS  OOUBT  OT  THE  UNmD  STATES. 


HARRY  A.  BROWN. 

(See  8.  a  Reporter'!  ed.  223-228.) 

Jury  —  InfrliiBeinent  of  risbt  —  non- 
mutnlmons  verdict  —  Kctlon  nndei 
Federal  statnte. 

1.  The  requirement  of  U.  S.  ConJt.,  7tb 
Amend.,  that  trial!  by  jiuy  b«  according  U 
the  eourie  of  the  comiiioD  law,  i.  a.,  hj  • 
nnanimouj  verdict,  doea  not  control  the 
atate  courte,  even  when  enforcing  righti 
under  a  Federal  atatute  like  the  employer!' 
liability  act  of  April  22.  ISOB  {3B  SUt.  at 
L.  60,  chap.  140,  Comp.  SUt.  1B13,  |  6657), 
and  luch  courts  may,  therefore,  give  effect 
In  actiona  under  Uiat  atatute  U>  a  local 
practice  permitting  a  lesa  than  unanimoua 

[For  otbet  easel,  ae*  Jnry,  I.  d,  2,  In  DIbmI 
8np.    Ct.   1D03.] 

Trial  —  taking  case  rrom  Jury  —  «■- 
■amptlon  ot  risk. 

2.  The  abandonment  by  plaintiff  of  his 
claim  under  the  Federal  safety  appliance 
~  *~  '  ~  ~      ~   "   n  baaed  upon  those  acta 


while  attempting  to  work  by  hand  an  auto- 
matic coupler,  did  not  ncceaaarUy  with- 
draw ell  evidence  tending  to  ahow  that  the 
couplers  were  defective,  so  as  to  estebliah 
ai  a  matter  of  law  that  he  assumed  the 
risk,  and  to  require  a  directed  verdict  for 
defendant,  where  the  testimony  concerning 
the  condition  of  the  couplers  is  clearly  ad- 
miuible  under  the  issues  baaed  on  the  em- 
ployers' liability  act  as  explaining  the  oc- 
casion for  the  brakeman'a  presence  on  the 
track,  and  as  negativing  negligence  on  his 
part,  the  withdrawal  of  the  claim  not  being 
a  concession  that  the  testimony  relating  to 
the  couplers  was  false. 

(For  otber  ciaeB,  ■••  Trial,  VI.  d,  S,  In  Digest 

Sop.  a,  1B08.1 

Error  to  state  conrt  — .  reversible  error 

^  wronK  reason  for  decision. 

3.  The  inaccuracy  of  the  itatement  by 
the  court  ot  last  resort  in  passing  on  an 
objection  to  an  instruction  upon  assump- 
tion  of  risk,  in  an  action  under  the  Fed- 
eral employer!'  liability  act,  that  assump- 
tion of  risk  was  not  a  defense,  furnishes 
no  reason  why  its  affirmance  of  the  judg- 
ment of  the  trial  court  should  be  reversed 
by  the  Federal  Supreme  Court,  where  there 
is  no  contention  in  the  latter  court  con- 
cerning the  correctness  of  the  charge  aa  to 


was  aubmttted  to  the  jury. 


4.  Charging  the  jury  in  an  action  un- 
der the  Federal  employers'  liability  act 
that,  in  the  event  of  finding  the  plaintiff 
guilty  of  contributory  negligence,  they 
should  "reduce  hi!  damages  in  proporticm 
te  the  amount  ot  negligence  which  is  at- 
tributable to  him,"  is  not  reversible  error, 
even  though  further  definition  might  have 
aided  the  jury  in  appreciating  the  stand- 
ard by  which  the  damages  should  be  meas- 
ured, where  the  defenduit  made  no  request 
for  a  charge  clarifying  any  obscnrity  on  the 
subject  which  It  deemed  to  exist. 
[For  otber  caie*.  see  Appeal  and  Error,  VIII 
m,  4,  In  DiBest  Snp.  Ct  IWW.J 

tNo.  390.] 

Submitted  April  10  and  20,  1010.     Decided 
May  22,  1016. 

iN  ERROR  to  the  Supreme  Court  ot  the 
State  ot  Oklahoma  to  review  a  judgment 
which  affirmed  a  judgment  of  the  District 
Court  of  Carter  County,  In  that  sUte,  in 
favor  of  plaintiff  in  an  action  under  tht 
Federal  employers'  and  lafety  appliance 
acts.     Affirmed. 

See  same  ease  below,  —  Okla.  — ,  m 
Pac.  lOTS. 

Ths  facts  are  sUtcd  in  the  opinion. 

Mesars.  W.  F.  Evans  and  R.  A.  Klein- 
Khmidt  aubmitted  the  cauae  for  plaintiff 
in  error.    Mr.  J.  H.  Grant  waa  on  the  brief; 

Congress,  in  the  exercise  of  its  admitted 
power  to  r^ulate  oommerce  between  the 
states,  has  taken  complete  possession  of  the 
lubject  of  liability  of  interstate  carriers  for 
injury  to  their  servants  while  In  tb«  dii- 
^rge  of  any  duty  In  connection  with  inter- 
itate  commerce. 

Seaboard  Air  Line  R.  Co.  v.  Horton,  233 
U.  S.  402,  5S  L.  ed.  1062,  L.R.A.J91SC,  1, 
H  Sup.  a.  Rep.  63S,  Ann.  Cas.  1015B,  4TS, 
i  N.  C.  C.  A.  834;  Adams  Exp.  Co.  v.  Cron- 
inger,  226  U.  S.  491,  57  L.  ed.  314,  44  L.RJI. 
[N.S.)  267,  33  Sup.  Ct.  Rep.  148;  Second 
Smployers'  Liability  Caace  ( Mondou  v. 
Sew  York,  N.  H.  ft  H.  R.  Co.)  223  U.  8. 
L,  56  L.  ed.  327,  38  L.RA..(N.S.)  44,  S2  Sup. 
:».  Rep.  160,  1  N.  C.  0.  A.  875. 


Note. — On  error  te  state  court  in  cases 
arising  under  the  Federal  employers'  lia- 
bility act — see  note  te  Great  Northern  R. 
Co.  v.  Knapp,  ante,  T46. 

On  number  and  agreement  of  juror! 
neceesary  to  constitute  a  valid  verdict — see 
notes  to  Stete  v.  Batea,  43  L.R.A.  33,  and 
Silsby  V.  Foote,  14  L.  ed.  U.  S.  304. 

On  the  constitutionality,  application,  and 
^ect  ot  the  Federal  employer!*  liability 
#«« 


act — see  note!  to  Lamphere  v.  Oresou  R.  A 
NaT.  Co.  47  LJt.A.(N.S.)  3B,  and  Seaboard 
Air  Line  R.  Co.  v.  Horton,  L.R.A.1915C, 
47. 

On  duty  and  liability  under  Federal  and 
state  railway  safety  appliance  acta — se« 
notes  to  Chicago,  M.  &  St.  P.  R.  Co.  T. 
United  SUtes,  20  UR.A.(N.S.)  473,  and 
Lake  Shore  ft  M.  S.  R.  Co.  t.  Benson,  41 
LJtA..(N.S.)   48. 

S4t  D.  S. 


1915. 


ST.  LOUIS  ft  S.  F.  R.  CO.  t.  BROWN. 


By  abandoning  and  withdrawing  the 
charge  and  claim  that  the  couplers  were  de- 
fective, plaintiff  swept  away  every  pretext 
and  every  excuse  for  giving  a  stand-still 
sipial,  and  he  likewise  swept  away  every 
pretext  and  every  excuse  for  placing  him- 
self between  the  rails  in  front  of  the  mov- 
ing cars.  If  the  couplers  were  not  defective, 
then  there  was  no  reason  for  him  to  give  a 
stand  still  signal,  and  no  excuse  for  his 
going  in  between  the  rails  to  adjust  the 
coupler  on  the  ear  which  ran  over  him. 

Gilbert  v.  Burlington,  C.  R.  &  N.  R.  Co. 
«8  C.  O.  A.  27,  128  Fed.  629;  Arte  v.  Chi- 
cago, R.  L  &  P.  R.  Co.  34  Iowa,  154. 

Plaintiff's  case  was  submitted  to  the 
jury  under  the  provisions  of  the  employers' 
liability  act  alone,  and  the  defense  of  as- 
sumption of  the  risk  was  therefore  avail- 
able to  the  defendant. 

Grand  IVunk  Western  R.  Co.  t.  Lindsay, 
233  U.  S.  42,  58  L.  ed.  838,  34  Sup.  Ct.  Rep. 
581,  Ann.  Cas.  1914C,  168;  Southern  R.  Co. 
T.  Crockett,  234  U.  S.  725,  58  L.  ed.  1564, 
34  Sup.  Ct.  Rep.  897;  Second  Employers' 
Liability  Cases  (Moudou  v.  New  York,  N.  H. 
ft  H.  R.  Co.)  223  U.  S.  1,  56  L.  ed.  327,  38 
L.RA.(N.S.)  44,  32  Sup.  Ct.  Rep.  169,  1 
N.  C.  C.  A.  875;  Seaboard 'Air  Line  R.  Co. 
V.  Horton,  233  U.  S.  492,  58  L.  ed.  1062, 
LJtA.1915C,  1,  34  Sup.  Ct.  Rep.  635,  Ann. 
Cas.  1915B,  475,  8  N.  C.  C.  A.  834. 

It  is  the  duty  of  the  trial  judge  to  with- 
draw the  case  from  the  jury  and  to  direct 
a  verdict,  where  the  evidence  is  undisputed, 
or  is  of  such  conclusive  character  that  the 
court,  in  the  exercise  of  sound  judicial  dis- 
cretion, would  be  compelled  to  set  aside  a 
verdict  returned  in  opposition  to  it. 

Choctaw,  0.  A  G.  R.  Co.  y.  McDade,  191 
U.  S.  64,  48  L.  ed.  96,  24  Sup.  Ct.  Rep.  24, 
15  Am.  Neg.  Rep.  230;  Delaware,  L.  ft  W. 
R.  Co.  V.  Converse,  139  U.  S.  469,  35  L.  ed. 
213,  11  Sup.  Ct.  Rep.  569;  Phoenix  Mut.  L. 
Ins.  Co.  V.  Doster,  106  U.  S.  32,  27  L.  ed. 
66,  1  Sup.  Ct.  Rep.  18;  Griggs  y.  Houston, 
104  U.  S.  553,  26  L.  ed.  840;  Randall  y. 
Baltimore  ft  0.  R.  Co.  109  U.  S.  478,  27  L. 
ed.  1003,  3  Sup.  Ct.  Rep.  322;  Schofield  v. 
Chicago,  M.  ft  St.  P.  R.  Co.  114  U.  S.  615,  29 
L.  ed.  224,  5  Sup.  a.  Rep.  1125;  North 
Pennsylvania  R.  Co.  y.  Conmiercial  Nat. 
Bank,  123  U.  S.  727,  31  L.  ed.  287,  8  Sup. 
Ct.  Rep.  266. 

Plaintiff  assumed  the  risk  of  dangers  or- 
dinarily incident  to  his  employment  as 
brakeman. 

Narramore  y.  Cleveland,  C  C.  ft  St.  L.  R. 
Co.  48  LJLA.  68,  37  C.  C.  A.  499,  96  Fed. 
298;  Sans  Bois  Coal  Co.  y.  Janeway,  22 
Okla.  425,  99  Pac  153;  Coalgate  Co.  y. 
Hurst,  25  Okla.  588,  107  Pac.  657;  Tuttle 
y.  Detroit,  G.  H.  ft  M.  R.  Co.  122  U.  S.  189, 
30  L.  ed.  1114,  7  Sup.  Ct  Rep.  U66;  Kohn 
•0  li.  ed. 


y.  McNulta,  147  U.  S.  241,  37  L.  ed.  152,  13 
Sup.  Ct.  Rep.  298;  Southern  P.  Co.  y. 
Seley,  152  U.  S.  153,  38  L.  ed.  395,  14  Sup. 
Ct.  Rep.  530;  Morris  y.  Duluth,  S.  S.  ft  A. 
R.  Co.  47  C.  C.  A.  661,  108  Fed.  747;  Gilbert 
y.  Burlington,  C.  R.  ft  N.  R.  Co.  63  C.  C.  A. 
27,  128  Fed.  529;  Choctaw,  0.  ft  G.  R.  Co. 
y.  McDade,  191  U.  S.  64,  48  L.  ed.  96,  24 
Sup.  Ct.  Rep.  24,  15  Am.  Neg.  Rep.  230; 
Williams  y.  Choctaw,  0.  ft  G.  R.  Co.  79  C. 
C.  A.  146,  149  Fed.  104;  Burke  y.  Union 
Coal  ft  Coke  Co.  84  C.  C.  A.  626,  157  Fed. 
178;  Washington  ft  G.  R.  Co.  y.  McDade, 
135  U.  S.  554,  34  L.  ed.  235,  10  Sup.  Ct. 
Rep.  1044. 

Plaintiff  assumed  the  risk  of  obvious 
dangers,  such  as  stepping  between  the  rails 
in  front  of  a  moving  train,  or  in  attempt- 
ing to  couple  cars,  or  to  prepare  the  train 
for  coupling  by  standing  between  the  rails, 
and  the  like. 

Seaboard  Air  line  R.  Co.  y.  Horton,  233 
U.  S.  492,  58  L.  ed.  1062,  LJLA.1915C,  1, 
34  Sup.  Ct.  Rep.  635,  Ann.  Cas.  1915B,  476, 
8  N.  C.  C.  A.  834. 

If  plaintiff  was  entitled  to  recover  at  all, 
his  recovery  should  have  been  measured  by 
the  standard  prescribed  by  the  act  of  Con- 
gress under  which  his  action  was  prose- 
cuted. But  the  trial  court  failed  to  give 
the  jury  any  standard  by  which  to  measure 
his  damages. 

Seaboard  Air  Line  R.  Co.  y.  Tilghman,  237 
U.  S.  499,  59  L.  ed.  1069,  35  Sup.  Ct.  Rep. 
653;  Nashville  C.  ft  St.  L.  R.  Co.  y.  Banks, 
156  Ky.  609, 161  S.  W.  554. 

The  doctrine  of  comparative  negligence 
is  a  very  different  thing  from  the  rule  put 
in  force  in  this  act. 

Chicago,  B.  ft  Q.  R.  Co.  y.  Johnson,  103 
ni.  512;  Calumet  Iron  ft  Steel  Co.  v.  Martin, 
115  ni.  358,  3  N.  E.  456,  4  Am.  Neg.  Cas. 
258;  Whirley  y.  Whiteman,  1  Head,  623; 
East  Tennessee,  V.  ft  G.  R.  Co.  y.  Hum- 
phreys, 12  Lea,  200;  Louisville,  N.  ft  G.  S. 
JL  Co.  y.  Fleming,  14  Lea,  130;  East  Tenn- 
essee, V.  ft  G.  R.  Co.  y.  Fain,  12  Lea,  35; 
Bast  Tennessee,  V.  ft  G.  R.  Co.  v.  Curley, 
12  Lea,  46;  Kansas  P.  R.  Co.  y.  Peavey,  29 
Kan.  169,  44  Am.  Rep.  630;  Atchison,  T.  ft 
S.  F.  R.  Co.  y.  Morgan,  31  Kan.  77,  1  Pac. 
298;  Atchison,  T.  ft  S.  F.  R.  Co.  y.  Henry, 
57  Kan.  154,  45  Pac  576. 

Mr.  W.  F.  Evans  also  united  in  a  joint 
brief  raising  the  question  of  the  application 
of  the  7th  Amendment  to  the  Federal  Con- 
stitution, an  abstract  of  which  will  be 
found  in  connection  with  the  report  of 
Chesi4>eake  ft  0.  R.  Co.  y.  Kelly,  post,  1117. 

Messrs.  O.  B.  Stiuurt,  A.  O.  Gmoe,  and 
M.  K.  Gmoe  submitted  the  cause  for  de- 
fendant in  error.  Messrs.  W.  I.  Cruoe  and 
L.  S.  Dolman  were  on  the  brief: 

Will  this  court  reyiew  the  actios 


224,  225                  SUPREME  COURT  OF  THE  UNITED  STATES.              Oct.  Tiauc^ 

state  supreme  court,  wherein  it  held  that    note;  Hall  v.  VandaNa  R.  Co.  169  UL  App. 
the  plaintiff  below,  in  diBmissing  that  por-  12;  Grand  Trunk  Western  R.  Co.  ▼.  Lindsay^ 
tion  of  his  complaint  which  was  based  upon  233  U.  S.  42,  68  L.  ed.  838,  34  Sup.  Ct.  Rep. 
the  safety  appliance  act,  did  not  withdraw  581,  Ann.  Cas.  1014C,  108. 
from  the  jury   all   the  testimony  he   bad  Under  the  Federal  employers'  liability  act 
introduced  with  reference  to  the  defective  the  defendant  is  liable  if  it  is  guilty  of  any 
coupling?    Is  any  Federal  question  here  in-  causative  negligence,  however  slight,  in  con- 
volved?    Certainly  it  did  not  involve  the  nection  with  that  of  the  plaintiff, 
construction   of  any  act  of   Congress.     It  New  York,  C.  &  St.  R.  Co.  v.  Niebel,  131 
was  rather  a  question  of  general  law,  de-  C.  C.  A.  248,  214  Fed.  952. 
pending   for   its   solution    upon   local   con-  ^^^^^  ^  g  S^^^  ^  ^  C^      ^^  ^ 
struction.    It  was  merely  incidental  to  the  r.  Cruce  also  united  in  a  joint  brief  raising 
Federal  questions  involved  m  the  case,  and  ^^^  question  of  the  appUcation  of  the  7th 
did  not,  in  Its  esBfnce,  involve  the  exist-  Amendment  to  the  Federal  Constitution,  an 
ence  either  of  plaintifrs  nght  to  recover  ^y,^^^^  of  which  wiU  be  found  in  conneo- 
under  the  Fedeial  statute,  or  of  the  defend-  ^..^^  ^j^j^  ^^         ^  of  Chesapeake  &  0.  R. 
ant's  nght  to  be  shielded  under  that  stat-  ^^^  ^  j^jjy^  post,  1117. 
ate. 

Seaboard  Air  Line  R.  Co.  v.  Padgett,  236  ^^    ^^^^  j„,^i^  ^g^^  deUvered  the 

U.  S.  668.  59  L.  ed.  777,  35  Sup.  Ct.  Rep.  .„.^„  ^,  ^^  oourt: 

481;  Central  Vermont  R  Co.  v.  White,  238  g^.^^  ^^  ^^^  of  action  upon  the  Fed- 

U.  S.  507,  59  ^-^f-  1*33,  35  Sup.  Ct.  ^p.  ^^^j  employers'  liability  and  safety  appli- 

865  Ann.  Cas.  191 6B,  262,  9  N  C.  C  A^265;  ^^  ^^f^  ^^^^^^  ^^^  defendant  ii  error, 

!^.^*'i^'  ^*"f,3V  ^  J-  ^"^  ^.R'  •««!  to  recover  damages  resulUng  from  in- 

S.  477,  66  L.  ed.  1171,  32  Sup.  Ct.  Rep.  790.  .^^  alleged  to  have  been  occasioned  by 

Much  stronger  cases  of  contributory  neg-  ^^    negligence    of    the    railroad    company 

ligence  have  been  by  this  court  left  where  ^j^.,^  ^^  ^^  ^  i^  ^n^ploy  ^^d  engaged  in 

the  jury  left  them.                        ^    „    ,,  intersUte  commerce.     At  the  close  of  the 

Minneapolis,  St.  P.  &  S.  Ste.  M,  R.  Co.  testimony  the  claim  under  the  safety  ap- 
V.  PoppUr,  237  U.  S.  369,  59  L.  ©d.  1000,  35  pij^^noe  act  was  withdrawn  and  the  case  was 
Sup.  Ct.  Rep.  609;  Grand  Trunk  Western  R.  g^bniitted  to  the  jury  alone  upon  the  em- 
Co.  V.  Lindsay,  233  U.  S.  42,  58  L.  ed.  838,  pjoyerg'  liability  act.  There  was  a  verdict 
84  Sup.  a.  Rep.  581,  Ann.  Cas.  1914C,  168;  ^^^  judgment  for  the  plaintiff,  which  was 
Seaboard  Air  Une  R  Co.  v.  Koennecke,  239  ^ffi^med  by  the  court  below.  —  OkU.  — , 
U.  S.  352,  ante,  324,  36  Sup.  Ct.  Rep.  126;  ^^^  p^^    {qj^ 

Kanawha  &  M.  R.  Co.  v.  Kerse.  239  U.  S.  There  was  a  sharp  conflict  between  the 

676,  ante,  448,  36  Sup.  Ct.  Rep.  174.  testimony  offered  on  behalf  of  the  plaintiff 

The  doctrine  of  assumption  of  risk  has  ^^^  ^^^  ^^  j^^l^  of  the  defendant.     The 

no  place  in  the  case,  and  what  plaintiff  in  material   facte  disclosed  by   the  plaintiffs 

error  is  really  contending  for  is:     That  the  testimony  are  as  follows:     Brown,  a  head 

defendant  in  error  was  guilty  of  such  con-  ^rakeman,  and  other  members  of   a  local 

tributory  negligence  as  to  defeat  his  right  ^^^j  ,  ^  ^^j^  ^^^^  on  the  day  in  question 

to  recover.    It  is  not  always  easy,  of  course,  ^^^^  engaged  in  the  yards  at  Ashdown,  Ar- 

to  distinguish  between  contributory  negli-  Kansas,  in  making  up  an  extra  freight  train 

gence  and  assumed  risk,  but  it  seems  that  ^  ^  ^^^  out  by  an  extra  crew  to  Hugo, 

there  ought  to  be  no  difficulty  m  this  case.  Oklahoma.    The  cars   intended    [226]    for 

4  Thomp.  Neg.  §  4611 ;  Seaboard  Air  ^^^  intersUte  train  were  placed  on  an  east 
Line  R.  Co.  v.  Horton,  233  U.  S.  492,  58  L.  ^^^  ^^^  passing  track  east  of  a  switch  con- 
ed. 1062,  L.RA.1915C,  1,  34  Sup.  Ct.  Rep.  nesting  a  spur  track  which  ran  in  a  north- 
635,  Ann.  Cas.  1916B,  475,  8  N.  C.  C.  A.  easterly  direction  past  a  stave  mill.  After 
834;  Peirce  v.  Clavin,  27  C.  C.  A.  227,  53  piecing  some  cars  from  the  spur  track  on 
U.  S.  App.  492,  82  Fed.  660.  ^j^^  passing  track,  the  engine  returned  to 

The  court  did  not  err  in  instructing  the  the  spur  track  with  several  cars,  some  of 

jury  as  to  the  effect  of  contributory  negli-  ^hich  were  to  be  left  at  the  mill  and  the 

gence,  nor  in  failing  to  give  defendant's  re-  remainder  brought  out  and  coupled  to  those 

quested  charge  on  contributory  negligence,  already  collected  for  the  train  and  sUnding 

Chadwick    v.    Oregon-Washington    R.    A  on  the  passing  track.     Brown  accompanied 

Nav.  Co.  74  Or.  19,  144  Pac  1165;  Tilgh-  the  cars,  and,  after  cutting  off  those  in- 

man  v.  Seaboard  Air  Line  R.  Co.  167  N.  C.  tended   for   the  mill,  gave  the  engineer  a 

163,  83  S.  E.  315,  1090;   Cross  v.  Chicago,  signal  to  go  ahead,  the  engine  being  headed 

B.  &  Q.  R.  Co.  191  Mo.  App.  202,  177  S.  W.  west,   and  when  the  cars  approaching  the 

1127;  Cincinnati,  N.  0.  &  T.  P.  R.  Co.  v.  switch  came  opposite  the  car  on  the  pass- 

Goode,  163  Ky.  60,  17^  S.  W.  329;  Seaboard  ing  track  to  which  the  coupling  was  to  he 

Air  Line  R.  Co.  t.  Horton,  LJIA.J.915C,  67,  made,  Brown  crossed  over  from   the  spur 

•  •8  241  U.  S. 


1915. 


ST.  LOUIS  &  S.  F.  R.  CO.  ▼.  BROWN. 


22&-22S 


track  to  the  passing  track  to  adjust  the 
coupler  on  the  car  standing  there.  Finding 
the  knuckle  of  the  coupler  closed,  he  at- 
tempted to  open  it  with  the  lever  at  the 
aide  of  the  car,  but  it  did  not  work.  He 
then  tried  to  manipulate  the  knuckle  with 
his  hand,  hut  could  get  it  only  part  way 
open,  and,  closing  it,  he  stepped  out  to  the 
north  side  of  the  track  (the  engineer's 
.side).  As  the  last  car  coupled  with  the 
engine  was  then  just  clearing  the  switch, 
he  gave  the  engineer  a  stop  signal  and 
walked  west  to  the  switch  stand  to  set  the 
switch  80  that  the  engine  and  cars  might 
be  backed  to  make  the  coupling.  B7  the 
time  he  had  walked  the  short  intervening 
distance  and  set  the  switch  the  engine  had 
dome  to  a  stop  with  the  rear  car  a  few 
■teps  west  of  the  switch.  Intending  then 
to  adjust  the  coupler  on  the  end  of  this 
ear.  Brown  gave  the  engineer,  who  was 
watching  him,  a  "spot"  signal,  which  Indi- 
cated  that  he  was  not  to  move  the  engine 
until  a  further  signal  was  given  hj  Brown, 
and  crossed  over  to  the  south  side  of  the 
track  in  order  to  use  the  lifting  pin  to 
open  the  knuckle  of  the  coupler.  When  the 
lever  failed  to  work  he  stepped  behind 
the  car  and  was  about  to  try  to  open  the 
knuckle  with  his  hand  •when  he  heard  the 
cars  ahead  of  him  move.  He  at  once  turned 
to  leave  the  [226]  track,  but  was  struck 
and  knocked  down  by  the  car  which  was 
backed  in  disregard  of  the  "spot"  signal, 
and  his  feet  were  caught  under  the  wheeb 
and  crushed. 

The  assignments  of  error  are  numerous, 
but  those  requiring  to  be  specially  noticed 
may  be  disposed  of  under  three  headings: 

1.  The  contention  that  rights  of  the  rail- 
road company  guaranteed  by  the  7th  Amend- 
ment were  violated  because  only  nine  of 
the  twelve  jurors  concurred  in  the  verdict 
is  without  merit.  Minneapolis  k  St.  L.  R. 
Co.  V.  Bombolis,  241  U.  S.  211,  ante,  061,  36 
Sup.  St.  Rep.  505. 

2.  A  twofold  contention  is  based  upon 
rulings  concerning  the  doctrine  of  the  as- 
sumption of  the  risk.  Upon  the  withdrawal 
by  the  plaintiff  of  his  claim  under  the 
safety  appliance  act,  the  court  charged  the 
jury  concerning  assumption  of  the  risk  as 
follows: 

"You  are  instructed  that,  by  aceepting 
employment  as  a  brakeman  with  the  de- 
fendant, the  plaintiff  assumed  the  risk  of 
such  dangers  as  are  ordinarily  incident  to 
the  occupation  he  was  engaged  in,  .and  if 
you  find  that  his  injury  was  occasioned  by 
one  of  the  incidents  ordinarily  attending  the 
occupation  upon  which  he  was  engaged,  you 
should  return  a  verdict  for  the  defendant; 
but  you  are  instructed  in  this  connection 
that  the  plaintiff  only  assumed  the  riaka 
•0  li.  ed. 


that  are  ordinarily  incident  to  the  occupa- 
tion in  which  he  was  engaged,  and  that  he 
did  not  assume  the  risks  that  were  attend- 
ant upon  the  n^ligence  of  a  fellow  serv- 
ant." 

(a)  It  is  insisted  that  the  abandonment 
of  the  claim  as  to  a  violation  of  the  safety 
appliance  act  necessarily  withdrew  all  evi- 
dence tending  to  show  that  the  couplers 
were  defective,  and,  in  the  absence  of  such 
evidence,  the  proof  established  as  a  matter 
of  law  that  the  plaintiff  assumed  the  risk, 
and  the  court  should  have  directed  a  verdict 
in  favor  of  the  railroad.  We  think  the 
proposition  it  plainly  without  merit.  The 
testimony  concerning  [227]  the  condition 
of  the  couplers  was  clearly  admissible  under 
the  issues  based  on  the  employers'  liability 
act  as  explaining  the  occasion  for  Brown's 
being  on  the  trade,  and  aa  negativing  negli- 
gence on  his  part.  In  so  far  as  the  conten- 
tion implies  that  the  withdrawal  of  the 
claim  was  a  concession  that  the  testimony 
relating  to  the  couplers  was  false,  we  think 
the  conclusion  is  wholly  unwarranted.  If 
we  were  to  conjecture  as  to  the  reason  for 
the  abandonment  of  the  claim  under  the 
safety  appliance  act,  we  think  it  at  least 
quite  as  probable  that  plaintiff's  counsel 
were  of  opinion  that,  in  the  situation  dis- 
closed by  the  plaintiff's  testimony,  the 
safety  appliance  act  was  inapplicable. 

(b)  In  the  court  below  it  would  seem 
that  the  correctness  of  the  general  instruc- 
tion as  to  assumption  of  the  risk  which  we 
have  quoted  as  given  by  the  trial  court  was 
challenged  on  a  ground  which  has  been  aban- 
doned because  not  here  pressed.  But  it  is 
said  reversible  error  exists  because  the  court 
below,  in  passing  upon  such  objection,  re* 
marked  that  as  the  "defendant's  liability 
to  plaintiff  grows  out  of  a  violation  of  a 
statutory  duty,  arising  under  an  act  of  Con- 
gress," assumption  of  the  risk  was  not  a 
defense.  This,  it  is  safd,  was  erroneous, 
first,  because  so  far  as  the  safety  appliance 
act  was  concerned,  it  was  inapposite,  as  re- 
liance upon  that  law  by  the  plaintiff  had 
been  disclaimed,  and  second,  because,  under 
the  facts,  it  was  open  to  find  the  existence 
of  assumption  of  the  risk  depending  upon 
conditions  of  fact  not  involved  in  the  safety 
appliance  act.  But  we  fail  to  see  the  per- 
tinency of  this  objection,  as  there  is  now  no 
contention  concerning  the  correctness  of  the 
charge  as  to  assumption  of  the  risk  upon 
which  the  case  was  submitted  to  the  jury 
for  their  verdict.  At  best,  therefore,  the 
error  asserted  simply  amounts  to  contending 
that  because  the  court  below  may  have  in- 
accurately expressed  in  one  respect  its  rea- 
sons for  affirmance,  that  inaccuracy  gives 
rise  to  the  duty  of  [228]  reversing   " 


228,  229 


SUPREME  COURT  OF  THE  UNITED  STATES. 


OOT.  TkBM, 


judgment  although  no  reversible  error  ex- 
ists. 

3.  It  is  contended  that  the  court  erred  In 
charging  the  jury  that,  in  the  event  they 
found  the  plaintiff  guilty  of  contributory 
negligence,  they  should  "reduce  his  damages 
in  proportion  to  the  amount  of  negligence 
which  is  attributable  to  him/'  since  the 
court  did  not  define  the  word  "proportion," 
and  hence  failed  to  fix  any  standard  by 
which  the  damages  should  be  measured.  The 
charge  is  clearly  distinguishable  from  the 
instruction  disapproved  in  Seaboard  Air 
Line  R.  Co.  t.  Tilghman,  237  U.  S.  499,  59 
L.  ed.  10G9,  35  Sup.  Ct.  Rep.  653,  which  is 
relied  upon,  since  in  that  case  the  jury  were 
in  effect  instructed  to  diminish  the  damages 
according  to  their  conception  of  what  was 
reasonable.  The  instruction  given  is  al- 
most in  the  identical  language  of  the  stat- 
ute, and  while  definition  might  have  further 
conduced  to  an  appreciation  by  the  jury  of 
the  standard  established  by  the  statute,  we 
think  there  was  no  error  in  the  charge  given, 
especially  as  the  railroad  company  made  no 
request  for  a  charge  clarifying  any  obscur- 
ity on  the  subject  which  it  deemed  existed. 
It  is  true  the  company  made  a  request  on 
the  subject  which  the  court  declined  to  give, 
but  that  request,  we  are  of  opinion,  taken  as 
a  whole,  instead  of  clarifying  any  ambiguity 
deemed  to  exist  in  the  instruction  which  the 
court  gave  would  have  served  to  obscure  it. 
There  was  no  error,  therefore,  leaving  aside 
the  question  whether  the  requested  instruc- 
tion did  not  contain  matters  which,  if  given, 
would  have  been  erroneous. 

Although  we  have  examined  the  whole 
record,  and,  as  the  result  of  that  examina- 
tion, conclude  there  is  no  grotmd  for  re- 
versal, we  have  not  particularly  noticed 
subjects  embraced  by  some  of  the  assign- 
ments, but  not  pressed  in  argument,  and 
others  not  embraced  by  the  assignments,  but 
indirectly  referred  to  in  the  argument. 

AlUrmed. 


[229]  RALPH  B.  JACOBS,  Plff.  in  Err., 

y. 

SOUTHERN  RAILWAY  COMPANY. 

(See  S.  0.  Reporter's  ad.  229-237.) 

Master  and  servant  —  employers'  liabil- 
ity —  assumption  of  risk. 

1.  The  express  declaration  by  the  Fed- 
eral employers'  liability  act  of  April  22, 


1008  (35  Stat,  at  L.  65,  chap.  149,  Comp. 
Stat.  1913,  I  8657),  S  4>  that  an  employee 
shall  not  be  held  to  have  assumed  the  risks 
of  his  employment  in  any  case  where  the 
violation  by  the  carrier  of  any  statute  en- 
acted for  the  safety  of  employees  contrib- 
uted to  his  injury  or  deatii,  must  be  deemed 
to  leave  in  force  in  all  other  cases  the  de- 
fense of  the  assumption  of  risk  of  the  car- 
rier's negligence,  notwithstanding  Uie  pro- 
vision of  the  3d  section  of  that  act  that  the 
contributory  n^ligence  of  the  employee 
''shall  not  bar  a  recovery,"  and  of  the  5th 
section,  precluding  the  carrier  from  exempt- 
ing itself  from  liabili^. 
[For  other  cases,  see  Master  and  Servant,  U. 
b,   In   Diffest  Sap.  Ct.   1908.] 

Master   and   servant  —  assumption   of 
risk  —  knowledge  and  appreciation 
of  danger. 
2.  A  railway  firenuui  injured  by  stum- 
bling over  a  pile  of  cinders  between  the 
tracks  while  attempting  to  board  a  moving 
engine  with  a  can  of  drinking  water  in  his 
hands  assumes   the  risk  of   the  situation 
where  he  Icnows  of  the  custom  to  deposit 
cinders  between  the  tracks,  and  knows  of 
their  existence,  although  he  may  have  for- 
gotten their  existence  at  the  time,  and  does 
not  notice  them. 

[For  other  cases,  see  Master  and  Servant.  IL 
b,   In   Digest  Pup.  Ct.   1908.] 

Brror  to  state  conrt  —  objections  to  in- 
atmctlon  —  general  or  specific. 

3^.  The  objection  that  an  instruction,  in 
an  action  under  the  Federal  employers'  lia- 
bility act  of  April  22,  1908  (35  Stat,  at  L. 
65,  chap.  149,  Comp.  Stat  1913,  §  8657), 
on  the  assumption  it  risk,  did  not  state  as 
an  element  the  ajppreciation  by  the  employee 
of  the  danger  of  the  situation  as  necessary 
to  his  assumption  of  risk,  is  not  available 
on  writ  of  error  from  the  Federal  Supreme 
Court  to  a  state  court,  where  the  objection 
made  at  the  trial  was  the  general  one  that 
the  instruction  did  not  correctly  state  the 
common-law  doctrine  of  assumption  of  risk, 
and  in  the  state  court  of  last  resort  the  at- 
tack was  based  upon  the  sole  ground  that 
assiunption  of  risk  was  not  available  as  a 
defense  under  the  Federal  statute. 
[For  other  cases,  see  Appeal  and  Brror,  VI.  a» 
8,  in  Digest  Sup.  Ct.  1908.] 

[No.  326.] 

Argued  April  27,  1916.     Decided  May  22, 

1916. 

IN  feRROR  to  the  Supreme  Court  of  Ap- 
peals of  the  State  of  Virginia  to  review 
a  judgment  which  refused  a  writ  of  error 
to  the  Circuit  Court  of  Brunswick  County 
to  review  a  judgment  of  that  court  in  favor 
of  defendant  in  an  action  under  the  Fed* 


NoTB.— On  error  to  state  court  in  cases 
arising  under  the  Federal-  employers'  lia- 
bility act — see  note  to  Great  Nortiiem  R. 
Co.  V.  Knapp,  ante,  745. 

On  the  constitutionality,  application,  and 
effect  of  the  Federal  employers'  liability 
•  70 


act^ — see  notes  to  Lamphere  v.  Oregon  R.  & 
Nav.  Co.  47  L.RJl.(N.B.)  38,  and  Seaboard 
Air  Line  R.  Co.  y.  Horton,  L.RwA.  1915C, 
47. 

Qenerally,  as  to  a  servant's  assumptioB 
of  risk— «ee  notes  to  Pidoock  v.  Union  P.  R. 

141  V.  8. 


1915. 


JACOBS  y.  SOUTHERN  R.  CO. 


era]  employers'  liability  act,  rendered  on  a 
■econd  trial  after  the  judgment  of  that 
court  on  the  first  trial  had  been  reversed 
by  the  Virginia  Court  of  Appeals.    Affirmed. 

See  same  case  below,  116  Va.  189,  81  S. 
£.  99. 

The  facts  are  stated  in  the  opinion. 

Mr.  Edward  P.  Baford  argued  the  cause 
and  filed  a  brief  for  plaintiff  in  error: 

The  plaintiff  was  injured  as  a  result  of 
*  dangerous  condition  created  by  the  neg- 
ligence of  the  defendant's  officers,  agents,  or 
employees  in  another  department  of  the 
service. 

Kansas  City,  Ft.  S.  &  G.  R.  Co.  t.  Kier, 
41  Kan.  671,  21  Pac.  770. 

The  defendant's  effort  to  acquit  itself  of 
the  charge  of  negligence  on  the  part  of 
those  of  its  servants  who  were  charged  with 
knowledge  of  the  danger  is  inconsistent 
with  its  contention  that  the  plaintiff,  whose 
duty  as  a  fireman  was  not  concerned  with 
the  accumulation  of  cinders,  was  himself 
chargeable  with  knowledge  of  the  danger. 
As  a  locomotive  fireman  he  was  under  no 
duty  to  examine  the  consistency  of  the  heap 
of  cinders.  He  was  entitled  to  assume  that 
the  yard  was  free  from  such  a  danger  as 
that  which  caused  his  injury. 

Texas  &  P.  R.  Co.  v.  Harvey,  228  U.  S. 
319-321,  57  L.  ed.  852-855,  33  Sup.  Ct.  Rep. 
518;  Kirbo  v.  Southern  R.  Co.  —  Ga.  App. 
— ,  84  S.  E.  491;  Baltimore  &  O.  R.  Co.  v. 
Whitacre,  124  Md.  411,  92  Atl.  160. 

An  instruction  is  erroneous  which  directs 
a  verdict  on  a  partial  view  of  the  evidence. 

38  Cyc.  1627;  Greenleaf  t.  Birth,  9  Pet. 
292,  9  L.  ed.  132. 

The  plaintiff's  positive  testimony  that  he 
was  not  aware  of  the  danger  precludes  the 
contention  that  he  assumed  the  risk. 

Texas  A,  P.  R.  Co.  v.  Swearingen,  196  U. 
6.  51-59,  49  L.  ed.  382-387,  25  Sup.  Ct. 
Rep.  164,  17  Am.  Neg.  Rep.  422. 

To  charge  a  servant  with  assumption  of 
risk,  as  a  matter  of  law,  the  danger  must 
be  so  obvious  and  imminent  that  a  person 
of  ordinary  prudence  would  not  undertake 
the  service.  When  the  danger  is  not  of  that 
character  the  question  of  assiimption  of 
risk  is  one  of  fact  for  the  jury. 


ChocUw,  0.  &  G.  R.  Co.  y.  McDade,  191 
U.  S.  M-68,  48  L.  ed.  96-100,  24  Sup.  Ct. 
Rep.  24,  15  Am.  Neg.  Rep.  230;  Texas  &  P. 
R.  Co.  V.  Swearingen,  196  U.  S.  51,  49  L.  ed. 
382,  25  Sup.  Ct.  Rep.  164,  17  Am.  Neg.  Rep. 
422;  McGovem  v.  Philadelphia  &  R.  R.  Co. 
235  U.  S.  389,  59  L.  ed.  283,  35  Sup.  Ct. 
Rep.  127,  8  N.  C.  C.  A.  67;  Seaboard  Air 
Line  R.  Co.  v.  Padgett,  236  U.  S.  668,  59 
L.  ed.  777,  35  Sup.  Ct.  Rep.  481;  Phoonix 
Mut.  L.  Ins.  Co.  V.  Doster,  106  U.  S.  32,  27 
L.  ed.  66, 1  Sup.  Ct.  Rep.  18. 

To  charge  the  servant  with  assumption 
of  risk  the  evidence  (1)  must  show  that  he 
was  chargeable  with  knowledge  of  the  ma- 
terial conditions  which  were  the  immediate 
cause  of  his  injury,  and  (2)  must  establish 
his  appreciation  of  the  dangers  produced  by 
the  abnormal  conditions. 

Choctaw,  0.  &  G.  R.  Co.  v.  McDade,  191 
U.  S.  64,  48  L.  ed.  96,  24  Sup.  Ct.  Rep.  24, 
15  Am.  Neg.  Rep.  230;  Texas  &  P.  R.  Co. 
V.  Archibald,  170  U.  S.  665,  42  L.  ed.  1188, 
18  Sup.  Ct.  Rep.  777,  4  Am.  Neg.  Rep.  746; 
Seaboard  Air  Line  R.  Co.  v.  Horton,  233  U. 
S.  492,  58  L.  ed.  1062,  L.RJ1.1915C,  1,  34 
Sup.  Ct.  Rep.  635,  Ann.  Cas.  1915B,  475,  8 
N.  C.  C.  A.  834;  Rase  v.  Minneapolis,  St. 
P.  &  S.  Ste.  M.  R.  Co.  107  Minn.  260,  21 
L.RA.(N.S.)  138,  120  N.  W.  360;  Yazoo  & 
M.  VaUey  R.  Co.  v.  Wright,  235  U.  S.  376, 
59  L.  ed.  277,  35  Sup.  Ct.  Rep.  130,  3  Labatt, 
Mast.  &  S.  §  1190,  pp.  3207-3211;  Graseth  v. 
Northwestern  Knitting  Co.  128  Minn.  245, 
150  N.  W.  804;  Campbell  v.  Chicago  G.  W. 
R.  Co.  108  Minn.  104,  28  L.R.A.(N.S.)  346, 
133  Am.  St.  Rep.  417,  121  N.  W.  429;  Balti- 
more &  0.  R.  Co.  y.  Whitacre,  124  Md.  411, 
92  Atl.  1060. 

Unless  plaintiff  in  error  not  only  knew 
the  conditions,  but  also  knew  of  the  dan- 
gers arising  therefrom,  he  could  not  be 
charged  with  negligence  in  failing  to  avoid 
them. 

Holcomb  y.  Norman,  47  Ind.  App.  87,  91 
N.  E.  625. 

Since  knowledge  of  the  danger  which  pro- 
duces the  injury  is  "not  only  an  element  or 
factor,  but  a  very  important  one"  (Norfolk 
&  W.  R.  Co.  v.  Cheatwood,  103  Va.  356,  49 
S.  E.  489;  Buckner  v.  Richmond  &  D.  R.  Co. 
72  Miss.  873,  18  So.  449)  in  contributory 


Co.  1  L.R.A.  131;  Foley  v.  Pettee  Mach. 
Works,  4  L.R.A.  51;  Howard  v.  Delaware 
&  H.  Canal  Co.  6  L.R.A.  75;  Hunter  v.  New 
York,  0.  &  W.  R.  Co.  6  L.R.A.  246;  Georgia 
P.  R.  Co.  V.  Dooly,  12  L.R.A.  342;  Kehler 
v.  Schwenk,  13  Ir.R.A.  374,  and  Southern 
P.  Co.  V.  Seley,  38  L.  ed.  U.  S.  391. 

On  volenti  non  fit  injuria  as  defense  to 
action  by  injured  servant — see  note  to 
O'Maley  v.  South  Boston  Gaslight  Co.  47 
L.RJk.  161. 

As  to  whether  servant  may  assume  the 
risk  of  dangers  created  by  the  master's 
•0  li.  ed. 


negligence — see  note  to  Scheurer  v.  Banner 
Rubber  Co.  28  L.R.A.(N.S.)   1215. 

As  to  servant's  assumption  of  risk  of 
dangers  imperfectly  appreciated — see  note 
to  Tuckett  y.  American  Steam  &  Hand 
Laundry,  4  L.R.A.(N.S.)    990. 

On  the  assumption  by  train  employee  of 
risks  due  to  defects  in  track  or  roadbed — 
see  notes  to  Smith  y.  Chicago,  R.  I.  &  P.  R. 
Co.  28  L.R.A.(N.S.)  1256,  and  Luebben  y. 
Wisconsin  Traction,  Light,  Heat  &  P.  Co. 
49  L.R.A.(N.S.)   517. 


SUPREME  CX)URT  OF  TifE  UNITED  STATES. 


OoT.  TkiM, 


n^ligence,  it  is  difficult  to  oonceiye  of  an 
instruction  on  that  subject  which  does  not 
embrace  the  element  of  knowledge. 

Schlemmer  v.  Buffalo,  R.  &  P.  R.  Co.  220 
U.  S.  690,  55  L.  ed.  596,  31  Sup.  Ct.  Rep. 
561;  Louisville  &  N.  R.  Co.  y.  Lankford, 
126  C.  C.  A.  247,  209  Fed.  321 ;  Herrick  ▼. 
Quigley,  41  C.  C.  A.  294,  101  Fed.  187. 

Assumption  of  risk  defeats  the  policy  of 
the  act. 

Second  Employers'  Liability  Cases  (Mon- 
dou  ▼.  New  York,  N.  H.  A  H.  R.  Co.)  223 
U.  S.  1-51,  56  L.  ed.  327-346,  38  L.RJk. 
(N.S.)  44,  32  Sup.  Ct.  Rep.  169,  1  N.  C.  C. 
A.  875;  Michigan  C.  R.  Co.  v.  Vreeland,  227 
U.  S.  59,  57  L.  ed.  417,  33  Sup.  Ct.  Rep.  192, 
Ann.  Cas.  1914C,  176;  Pedersen  ▼.  Delaware, 
L.  A  W.  R.  Co.  229  U.  S.  149,  57  L.  ed.  1127, 
33  Sup.  Ct.  Rep.  648,  Ann.  Cas.  1914C,  153, 
3  N.  C.  C.  A.  779;  Rase  ▼.  Minneapolis,  St. 
P.  k  S.  Ste.  M.  R.  Co.  107  Minn.  260,  21 
L.R.A.(N.S.)   138,  120  N.  W.  360. 

There  is  no  common  law  of  the  United 
States. 

Wheaton  ▼.  Peters,  8  Pet.  658,  8  L.  ed. 
1079 ;  Pennsylvania  v.  Wheeling  &  B.  Bridge 
Co.  13  How.  563,  14  L.  ed.  268;  Smith  ▼. 
Alabama,  124  U.  S.  46^-483,  31  Li  ed.  508- 
514, 1  Inters.  Com.  Rep.  804,  8  Sup.  Ct.  Rep. 
664;  Moore  v.  United  States,  91  U.  S.  270, 
23  L.  ed.  346;  Gatton  y.  Chicago,  R.  I.  & 
P.  R.  Co.  95  Iowa,  112,  28  L.RA.  566,  63 
N.  W.  589;  United  States  y.  Wong  Kim 
Ark,  169  U.  S.  649,  42  L.  ed.  890,  18  Sup. 
Ct.  Rep.  456;  Parkersburg  &  0.  River 
Transp.  Co.  v.  Parkersburg,  107  U.  S.  691, 
27  L.  ed.  584,  2  Sup.  Ct.  Rep.  732;  Kansas 
y.  Colorado,  206  U.  S.  46,  51  L.  ed.  956,  27 
Sup.  Ct.  Rep.  655;  Western  U.  Teleg.  Co.  y. 
Commercial  Mill.  Co.  218  U.  S.  406,  64  L. 
ed.  1088,  36  L.R.A.(N.S.)  220,  31  Sup.  Ct. 
Rep.  59,  21  Ann.  Cas.  815. 

While  the  phrase  "assumption  of  risk"  in 
its  modem  acceptation  includes  the  ordinary 
risks  as  well  as  those  due  to  the  employer's 
negligence,  the  words  "risks  of  his  employ- 
ment" refer  only  to  the  ordinary  risks,  the 
existence  of  which  implies  no  negligence  on 
the  part  of  the  master. 

6  Labatt,  Mast.  &  S.  g  1647;  Morgan  y. 
Vale  of  Neath  R.  Co.  5  Best  &  S.  570,  33  L. 
J.  Q.  B.  N.  S.  260,  12  Week.  Rep.  1032, 
affirmed  in  L.  R.  1  Q.  B.  149,  5  Best  &  S. 
736,  35  L.  J.  Q.  B.  N.  S.  23,  13  L.  T.  N.  S. 
564, 14  Week.  Rep.  144;  Texas  &  P.  R.  Co.  y. 
Harvey,  228  U.  S.  319-321,  67  L.  ed.  852- 
855,  33  Sup.  Ct.  Rep.  518. 

The  phrase  "assumption  of  risk"  in  its 
original  significance  embraced  only  such 
risks  as  were  inherent,  or  at  least  involved 
no  breach  of  common -law  duty.  In  this 
sense,  the  risks  included  are  synonymous 
with  those  embraced  in  the  phrase  "risks  of 
his  employment."  In  its  secondary  applica- 
•  72 


tion  the  phrase  "assumf^tion  of  risk"  was 
extended  to  embrace  the  enhanced  risks  due 
to  the  employer's  negligence,  and  thus  was 
made  to  include  two  legal  conceptions  es- 
sentially different. 

Scheurer  v.  Banner  Rubber  Co.  28 
L.RJk.(N.S.)  1221,  note. 

The  negligence  of  a  fellow  servant  is  not 
the  violation  of  any  statute  enacted  for  the 
safety  of  employees  unless  the  liability  act 
is  itself  such  a  statute. 

Philadelphia,  B.  &  W.  R.  Co.  v.  Tucker, 
35  App.  D.  C.  123,  LJIJ1.1916C,  39,  220 
U.  S.  608,  65  L.  ed.  607,  31  Sup.  Ct.  Rep. 
725. 

An  early,  if  not  the  earliest,  application 
of  the  phrase  "assumption  of  the  risk,"  was 
the  establishment  of  the  exception  to  the 
liability  of  a  master  for  the  negligence  of 
a  servant  when  the  person  injured  was  a 
fellow  servant  of  the  negligent  man. 

Schlemner  v.  Buffalo,  R.  ft  P.  R.  Co.  205 
U.  S.  1,  61  L.  ed.  681,  27  Sup.  Ct.  Rep.  407; 
Farwell  v.  Boston  &  W.  R.  Corp.  4  Met.  49, 
38  Am.  Dec.  339,  16  Am.  Neg.  Cas.  407. 

The  risk  of  injury  from  the  negligence  of 
the  fellow  servant  is  a  risk  of  his  employ- 
ment, which,  at  common  law,  is  assumed  by 
the  employee  (Norfolk  &  W.  R.  Co.  v.  Nuc- 
kols,  91  Va.  193,  21  S.  E.  342),  whUe  the 
risk  of  injury  from  the  employer's  negli- 
gence, whatever  may  be  the  basis  of  its  as- 
sumption at  common  law,  is  not  a  risk  of 
his  employment  assumed  by  the  employee. 

3  Labatt,  Mast  &  S.  §  804. 

Continuance  in  the  service  with  knowl- 
edge of  the  danger  is  the  common  and  es- 
sential factor  of  both  assumption  of  risk 
and  contributory  negligence. 

Narramore  v.  Cleveland,  C.  C.  A  St.  L. 
R.  Co.  48  L.RJI.  77,  37  C.  C.  A.  505,  96 
Fed.  298. 

The  confusion  in  efforts  to  distinguirii 
between  assumption  of  risk  and  contribu- 
tory negligence  results  from  a  lack  of  class- 
ification of  the  different  phases  of  the  two 
defenses,  which  are  sought  to  be  contrasted 
or  defined.  Such  a  classification  demon- 
strates the  impossibility  of  reconciling  with 
the  3d  section  of  the  employers'  liability 
act  that  form  of  assumption  of  risk  which, 
at  common  law,  bars  recovery  when  the 
employee  continues  in  service  with  knowl- 
edge of  an  abnormal  danger  superadded  by 
the  master's  negligence. 

St.  Louis  Cordage  Co.  v.  Miller,  63  LJtA. 
651,  61  C.  C.  A.  477,  126  Fed.  495,  15  Am. 
Neg.  Rep.  476;  Narramore  v.  Cleveland,  C. 
C.  &  St.  L.  R.  Co.  48  L.RJI.  68,  37  C.  C.  A. 
499,  96  Fed.  298;  Northern  P.  R.  Co.  v. 
Mares,  123  U.  S.  710-720,  31  L.  ed.  296- 
301,  8  Sup.  Ct.  Rep.  321 ;  Kane  v.  Northern 
C.  R.  Co.  128  U.  S.  91,  32  L.  ed.  339,  9  Sup. 
Ct.  Rep.  16;  Shearm.  ft  Redf.  Neg.  §  211; 

241  V.  S. 


1915. 


JACOBS  V.  SOUTHERN  IL  00. 


Francis  v.  Kansas  City,  St.  J.  &  C.  B.  R.  Co. 
127  Mo.  658,  28  S.  W.  842,  30  S.  W.  129,  26 
Cyc.  1211;  Musscr-Sauntry  Land,  Logging  &. 
Mfg.  Co.  V.  Brown,  61  C.  C.  A.  207,  126  Fed. 
141;  Southern  P.  Co.  v.  Yeargin,  48  C.  C. 
A.  497,  100  Fed.  436;  Graham  v.  Newburg 
Orrcl  Coal  &  Coke  Co.  38  W.  Va.  272,  18 
S.  E.  584;  Chicago  G.  W.  R.  Co.  v.  Crotty, 
4  L.RA.(X.S.)  832,  73  C.  C.  A.  147,  141  Fed. 
913;  3  La  bait.  Mast.  &  S.  §§  1182,  1205, 
1210,  1219,  1221,  1226,  1233,  1234;  A.  L. 
Clark  Lumber  Co.  v.  Johns,  98  Ark.  217,  135 
S.  W.  892;  Norfolk  &  W.  R.  Co.  ▼.  Cheat- 
wood,  103  Va.  356,  49  S.  E.  489;  Buckner 
V.  Richmond  A  D.  R.  Co.  72  Miss.  873,  18 
So.  449;  Pennsylvania  Co.  ▼.  Cole,  131  C. 
C.  A.  244,  214  Fed.  948;  Norfolk  &  W.  R. 
Co.  V.  Earnest,  229  U.  S.  114,  67  L.  ed.  1096, 
33  Sup.  Ct.  Rep.  654,  Ann.  Cas.  1914C,  172. 

This  defense,  if  its  basis  is  an  implied 
contract,  renders  nugatory  the  5th  section 
of  the  act,  that  any  contract,  rule,  regula- 
tion, or  device  whatsoever,  the  purpose  or 
intent  of  which  shall  be  to  enable  any  com- 
mon carrier  to  exempt  itself  from  any  lia- 
bility created  by  this  act,  shall  to  that  ex- 
tent be  void. 

Philadelphia,  B.  A  W.  R.  Co.  ▼.  Tucker, 
35  App.  D.  C.  123,  L.R.A.1915C,  39,  220  U. 
S.  608,  65  L.  ed.  607,  31  Sup.  Ct.  Rep.  725; 
McMurray  v.  Brown,  91  U.  S.  257,  23  L.  ed. 
321;  Richardson  v.  Norfolk  A  W.  R.  Co.  37 
W.  Va.  641,  17  S.  E.  195;  Wilson  ▼.  Taylor, 
89  Ala.  368,  8  So.  149;  Moman  ▼.  Carroll, 
35  Iowa,  22;  Sprague  v.  Haines,  68  Tex.  216, 
4  S.  W.  371. 

It  is  the  policy  of  the  law  to  protect,  to 
far  as  possible,  those  pursuing,  and  often- 
times necessarily  pursuing,  so  hazardous  an 
•mploymefit.  It  is  enough  that  they  must 
jtasume  the  intrinsic  risks  of  their  calling 
without  compelling  them  to  assume  the  neg- 
ligence of  their  employers. 

Philadelphia,  B.  &  W.  R.  Co.  Y.  Tucker,  35 
App.  D.  C.  123,  L.RJ1.1915C,  39. 

Since  the  maxim,  when  applicable,  is  a 
eommon-law  defense  to  an  action  by  a 
•tranger,  it  is  recognized  by  the  English 
courts  as  a  defense,  to  that  extent,  under 
the  English  statute. 

Smith  V.  Baker  [1891]  A.  C.  325,  60  L.  J. 
Q.  B.  N.  S.  683,  66  L.  T.  N.  S.  467,  40  Week. 
Bep.  392,  55  J.  P.  660;  Thomas  v.  Quarter- 
maine,  L.  R.  18  Q.  B.  Div.  685,  56  L.  J.  Q. 
B.  N.  S.  340,  57  L.  T.  N.  S.  537,  35  Week. 
Rep.  555,  61  J.  P.  516;  Yarmouth  v.  France, 
I-.  R.  19  Q.  B.  Div.  647,  67  L.  J.  Q.  B.  N.  S. 
7,  36  Week.  Rep.  281,  17  Eng.  Rul.  Cas.  217; 
Osborne  v.  London  A  N.  W.  R,  Co.  L.  R. 
21  Q.  B.  Div.  220,  67  I*  J.  Q.  B.  N.  S.  618, 
59  L.  T.  N.  S.  227,  36  Week.  Rep.  800,  52  J. 
P.  806;  Williams  v.  Birmingham  Battery  & 
Metal  Co.  [1899J  2  Q.  B.  338,  68  L.  J.  Q.  B. 
40  li.  ed. 


N.  S.  918,  47  Week.  Rep.  680,  81  L.  T.  N.  S. 
62,  15  Times  L.  R.  468. 

The  established  doctrine  of  the  English 
courts  is,  however,  that  the  maxim  is  not 
synonymous  with  scienti  non  fit  injuria, 
and  that  whether  or  not  the  servant  volun- 
tarily assumed  the  risk  is  a  question  of 
fact  for  the  jury, — a  doctrine  which  is  be- 
ing accepted  by  the  American  courts. 

New  York,  N.  H.  &  H.  R.  Co.  v.  Vizvari, 
L.R.A.1915C,  9,  126  C.  C.  A.  632,  210  Fed. 
118. 

The  maxim  volenti  non  fit  injuria  has 
in  the  law  no  independent  field  of  opera- 
tion. It  covers  no  ground  not  covered  by 
contractual  assumption  of  risk  and  con- 
tributory negligence. 

O'Maley  v.  South  Boston  Gaslight  Co.  47 
L.RA.  161,  and  notes,  IIL  and  IX.  158 
Mass.  135,  32  N.  E.  1119;  3  Labatt,  Mast. 
&  S.  §§  1287,  1288. 

Actual  knowledge  of  the  danger  must  be 
shown,  or,  in  the  absence  of  positive  evi- 
dence on  the  subject,  its  obvious  character 
must  be  bo  conclusively  established  that,  as 
a  matter  of  fact,  his  knowledge  must  be 
presumed,  before  the  doctrine  of  assump- 
tion of  risk  can  be  invoked. 

Texas  &  P.  R.  Co.  v.  Archibald,  170  U.  S. 
665,  42  L.  ed.  1188,  18  Sup.  a.  Rep.  777,  4 
Am.  Neg.  Rep.  746;  Choctaw,  O.  &  Q.  R.  Cp. 
V.  McDade,  191  U.  S.  04,  48  L.  ed.  96,  24 
Sup.  Ct.  Rep.  24,  15  Aul  Neg.  Rep.  230; 
Seaboard  Air  Line  R.  Co.  v.  Horton,  233 
U.  S.  492,  58  L.  ed.  1062,  L.R.A.1915C.  1, 
34  Sup.  Ct.  Rep.  635,  Ann.  Cas.  1915B, 
475,  8  N.  C.  C.  A.  834;  Yazoo  k  M.  Vall^ 
R.  Co.  V.  Wright,  236  U.  SJ  376,  59  L.  ed. 
277,  35  Sup.  Ct.  Rep.  130. 

Assumption  of  risk  is  a  matter  of  gen- 
eral, not  local,  jurisprudence.  Before  the 
enactment  of  the  employers'  liability  act — 
while  the  subject  was  within  the  police 
power  of  the  state  in  the  absence  of  legisla- 
tion by  Congress — this  court  applied  its  own 
interpretation  of  the  common-law  principle. 

Smith  ▼.  Alabama,  124  U.  S.  465,  476,  31 
L.  ed.  508-512,  1  Inters.  Com.  Rep.  804,  8 
Sup.  Ct.  Rep.  564. 

By  the  act  of  Congress  the  subject  is 
withdrawn  from  the  police  power  of  the 
state. 

Second  Employers'  Liability  Cases  (Mon- 
dou  V.  New  York,  N.  H.  A  H.  R.  Co.)  223 
U.  S.  1,  66  L.  ed.  327,  38  L.RA.(N.S.)  44, 
32  Sup.  Ct.  Rep.  169,  1  N.  C.  C.  A.  875. 

In  no  conceivable  view  of  the  evidence 
would  the  jury  have  been  warranted  in  any 
other  conclusion  than  that  the  plaintiff,  a 
locomotive  fireman,  charged  only  with  du- 
ties connected  with  the  operation  of  the 
train,  inadvertently  came  in  contact  with  a 
danger,  of  the  existence  of  which  he  had  no 
knowledge.    On  these  facts,  the  court  may 

•  7S 


229,  230 


SUPREME  CX>URT  OF  THE  UNITED  STATES. 


Cot.  TkBM, 


Mj,  as  a  matter  of  law»  he  did  not  aasume 
the  risk. 

Yazoo  &  M.  VaUey  R.  Co.  ▼.  Wright,  235 
U.  S.  376,  59  L.  ed.  277,  35  Sup.  Ct.  Rep. 
130. 

All  courts  agree  that  assumption  of  risk 
is  not  availahle  as  a  defense  when  the  in- 
jury results  in  whole  or  in  part  from  the 
negligence  of  the  officers,  agents,  or  em- 
ployees of  the  carrier,  as  distinguished  from 
a  defect  or  insufficiency  due  to  its  negli- 
gence in  its  physical  appliances. 

Second  Employers'  Liability  Cases,  supra; 
Easter  v.  Virginian  R.  Co.  —  W.  Va.  — ,  86 
S.  E.  37;  Portland  Terminal  Co.  ▼.  Jarvis, 
141  C.  O.  A.  562,  227  Fed.  8;  Grybowski  y. 
Erie  R.  Co.  —  N.  J.  L.  — ,  95  Atl.  764; 
Grand  Trunk  Western  R.  Co.  ▼.  Lindsay, 
120  C.  C.  A.  166,  201  Fed.  836,  affirmed  in 
233  U.  S.  42,  58  L.  ed.  838,  34  Sup.  Ct.  Rep. 
581,  Ann.  Cas.  1914C,  168. 

The  words  of  the  4th  section,  "risks  of 
his  employment,"  mean  the  risks  normally 
incident  to  the  employment,  the  existence 
of  which  does  not  charge  the  employer 
with  actionable  negligence.  They  do  not 
include  risks  occasioned  by  the  employer's 
negligence. 

Texas  &  N.  0.  R.  Co.  y.  Kelly,  98  Tex. 
123,  80  S.  W.  79;  Atchison,  T.  A  S.  F.  R. 
Co.  V.  Mills,  49  Tex.  Civ.  App.  349,  108  S. 
W.  480;  New  Omaha  Thomson-Houston 
Electric  Light  Co.  v.  Rombold,  73  Neb.  269, 
102  N.  W.  476,  106  N.  W.  213;  Stager  y. 
Troy  Laundry  Co.  38  Or.  480,  63  L.RJI.  469, 
63  Pac.  646;  5  Labatt,  Mast.  &  S.  §  1647;  3 
Labatt,  Mast.  &  S.  §  894;  Morgan  y.  Vale 
of  Neath  R.  Co.  5  Best  ft  S.  570,  33  L.  J.  Q. 
B.  N.  S.  260,  12  Week.  Rep.  1032,  affirmed 
in  L.  R.  1  Q.  B.  149,  5  Best  &  S.  736,  35  L. 
J.  Q.  B.  N.  S.  23,  13  L.  T.  N.  S.  564,  14 
Week.  Rep.  144;  Texas  A  P.  R.  Co.  y.  Har- 
vey, 228  U.  S.  319-321,  57  L.  ed.  852-855,  33 
Sup.  Ct.  Rep.  518;  Howard  v.  Delaware  ft 
H.  Canal  Co.  6  LJLA.  75,  note. 

Mr.  William  Iieigh  Williams  argued  the 
cause,  and,  with  Mr.  L.  E.  Jeffries,  filed 
a  brief  for  defendant  in  error: 

The  instruction  attacked  correctly  states 
the  oommon-law  doctrine  of  assumption  of 
risk. 

Choctaw,  0.  ft  G.  R.  Co.  v.  McDade,  191 
U.  S.  64,  48  L.  ed.  96,  24  Sup.  Ct.  Rep.  24, 
15  Am.  Neg.  Rep.  230;  Texas  ft  P.  R.  Co.  y. 
Archibald,  170  U.  S.  666,  42  L.  ed.  1188,  18 
Sup.  Ct.  Rep.  777,  4  Am.  Neg.  Rep.  746. 

Assumption  of  risk  is  a  good  defense  to 
an  action  under  the  Federal  employers'  lia- 
bility act  except  where  the  carrier's  de- 
fault consists  in  a  violation  of  some  statute 
enacted  for  the  safety  of  employees,  and 
such  default  has  contributed  to  the  injury 
or  death  of  the  employee. 
•  74 


Barker  y.  Kansas  City,  M.  ft  0.  R.  Go.  88 
Kan.  767,  43  LJtJL(N.S.)  1121,  129  Pae. 
1161;  Neal  y.  Idaho  ft  W.  N.  R.  Co.  22 
Idaho,  74,  125  Pac  831;  Bowers  y.  South- 
em  R.  Co.  10  Ga.  App.  367,  73  S.  E.  677; 
Freeman  y.  Powell,  —  Tex.  dv.  App.  — , 
144  S.  W.  1034;  Second  Employers'  Liabil- 
ity Cases  (Mondou  y.  New  York,  N.  H.  ft  H. 
R.  Co.)  223  U.  S.  1,  56  L.  ed.  327,  38  L.IUL 
(N.S.)  44,  32  Sup.  Ct.  Rep.  169,  1  N.  C.  C. 
A.  875;  Central  Vermont  R.  Co.  y.  Bethune, 
124  C.  C.  A.  528,  206  Fed.  868;  Seaboard 
Air  Line  R.  Co.  y.  Horton,  233  U.  S.  492,  58 
L.  ed.  1062,  L.RA.1915C,  1,  34  Sup.  Ct.  Rep. 
635,  Ann.  Cas.  1915B,  475,  8  N.  C.  C.  A.  834; 
Gulf,  C.  ft  S.  F.  R.  Co.  y.  McGinnis,  228  U. 
S.  173,  57  L.  ed.  785,  33  Sup.  Ct.  Rep.  426, 
3  N.  C.  C.  A.  806;  Missouri,  K.  ft  T.  R.  Co. 
y.  Wulf,  226  U.  S.  570,  57  L.  ed.  355,  33 
Sup.  Ct.  Rep.  135,  Ann.  Oas.  1914B,  134; 
Seaboard  Air  Line  R.  Co.  y.  Moore,  228  U. 
S.  433,  57  L.  ed.  907,  33  Sup.  Ct.  Rep.  580. 

Mr.  Justice  McKenna  deliyered  the  opin- 
ion of  the  court: 

Action  under  the  Federal  employers'  lia- 
bility act,  as  amended,  35  Stat,  at  L.  65, 
chap.  149,  Comp.  Stat.  1913,  §  8667;  36 
Stat,  at  L.  291,  chap.  143. 

Plaintiff  in  error,  who  was  also  plaintiff 
in  the  trial  court,  and  we  shall  so  designate 
him,  was  in  the  sendee  of  [830]  the  rail- 
way company,  in  interstate  commerce,  as  a 
fireman.  He  received  injuries  while  at- 
tempting to  get  on  a  moving  locomotive. 
He  charged  negligence  against  the  company 
and  sued  for  the  sum  of  $20,000  damages. 
The  negligence  charged  was  the  causing 
and  permitting  to  be  within  dangerous  prox- 
imity to  the  tracks  of  the  company  a  pile' 
of  loose  cinders  over  which  plaintiff  stum- 
bled and  slipped,  and  was  drawn  under  the 
locomotive. 

The  railway  company,  among  other  de- 
fenses, pleaded  the  following: 

"That  the  said  plaintiff  was  guilty  of 
gross  contributory  negligence  in  attempting 
to  board  the  engine  with  a  water  cooler 
filled  with  water  in  his  arms,  and  was  also 
guilty  of  gross  contributory  negligoioe  in 
attempting  to  board  the  engine  from  a  pile 
of  cinders  along  the  track;  and  was  also 
guilty  of  gross  contributory  negligence  in 
running  along  the  track,  and  in  attempting 
to  board  the  engine  without  looking  and 
seeing  the  pile  of  cinders,  which  could  have 
been  observed  with  any  caution  and  care 
on  his  part;  that  the  said  pile  of  cinders 
had  been  allowed  to  accumulate  in  the 
same  manner  and  in  the  same  place  as  they 
were  at  the  time  of  the  accident  for  many 
years  prior  to  the  accident,  and  that  these 
facts  were  well  known  to  the  plaintiff,  and 
that  he  assumed  the  risk  of  danger  from 

S41  V.  a. 


1915. 


JACOBS  V.  SOUTHERN  R.  CO. 


280-233 


•aid  pile  of  cinders,  if  there  wai  any  danger 
in  allowing  them  to  remain  there." 

There  were  two  trials  of  the  action.  The 
first  trial  resulted  in  a  verdict  for  plain- 
tiff for  $12,000,  upon  which  judgment  was 
entered.  The  judgment  was  reversed  by  the 
supreme  court  of  appeals  for  error  in  the 
instructions. 

Upon  the  second  trial  the  verdict  was  for 
defendant.  The  court  refused  to  set  it  aside 
and  grant  a  new  trial,  but  ordered  judgment 
in  accordance  therewith.  The  supreme  court 
of  appeals  refused  a  writ  of  error  and  super- 
sedeas, the  effect  of  which  was  to  afl&rm  the 
judgment  of  the  trial  court. 

[231 J    The  facts  are  practically  undis- 
puted.   Plaintiff  was  engaged  with  a  crew 
in  shifting  cars  in  the  railway  company's 
yard   at   Lawrenceville,   Virginia.     He   de- 
scended from  the  engine  at  the  depot  to  get 
drinking  water  for  himself  and  the  engineer. 
He  returned  with  a  can  of  water  to  mount 
the  engine,  and  then  as  to  what  took  place 
he  testified  as  follows:     "I  came  down  the 
railroad  road    .    .    .    and  came  across  the 
track   on   the  crossing.     At  the  time   the 
train  was  pulling  out  of  the  last  track.    So 
I  waited  until   the  train  was  pulling  up 
there,  and  aimed  to  catch  it,  and  when  I 
aimed  to  catch  it  I  made  three  or  four  steps 
to  get  on  it,  you  know,  and  I  got  to  the  cinder 
pile  before  1  knew  it,  and  I  tripped,  and 
went  under  the  engine.    .    .    .    The  cinder 
pile  tripped  me.''     The  train  was  moving 
"just  about  as  fast  as  anybody  could  walk; 
that  is,  pretty  peart  walking;  not  over  3 
or  4  miles  an  hour  at  the  most."    He  fur- 
ther testified  that  it  had  been  customary  ever 
since  he  had  been  on  the  road  "for  the 
trainmen  to  get  on  and  off  the  engine  when 
it  was  going  that  way;"  had  seen  it  done 
hundreds  of  times  a  day  and  had  never  seen 
any  rule  forbidding  it.     He  was  about  7 
feet  from  the  cinder  pile  when  he  "aimed  to" 
catch  the  engine,  and  the  cinder  pile  was 
about  18  or  24  inches  deep,  and  he  indicated 
its  length  to  be  about  as  long  as  the  court 
room  and  as  wide  as  the  distance  from  him- 
self to  a  person  he  indicated.     Describing 
how  the  cinders  caused  him  to  fall,  he  said 
they  were  piled  "right  up  against  the  rail" 
and  "sloped  from  the  rail  up.    As  I  caught 
the  engine,  I  made  several  steps,  and  as  I 
hit  the  cinder  pile  they  commenced  miring 
just  like  mud,  and  it  caused  me  to  fall,  and 
whfm  I  feU  in  the  cindAr  oi^e  the  journal 
box  kept  hitting,  and  1  couldn^t  get  up.    I 
tried,  but  I  couldn't.    .    .    .    Every  time  I 
made  an  -effort  the  cinder  pile  gave  way  with 
me.    ...    I  fell  down  behind  the  cinder. 
pile.    The  cinder  pile  was  sloping,  and  I  fell 
down  by  the  journal  box,  and  the  train 
[232]  was  passing,  and  I  rolled  down  next 
to  the  rail."    He  further  testified  that  if  he 
•0  li.  ed. 


had  fallen  from  some  other  cause,  he  could 
have  got  out  of  danger;  and  that,  when  he 
started  to  get  on  the  engine^  he  was  not 
conscious  of  any  danger  from  coming  in 
contact  with  the  pile  of  cinders;  that  it  was 
not  in  his  mind  at  all.  But  he  testified:  '1 
had  knowledge  of  it,  of  the  cinders  being 
there,  but  I  did  not  know  that  it  was  dan- 
gerous. I  had  forgotten  them  being  there  at 
the  time.  I  was  watching  when  I  was  going 
to  step  on  the  engine — watching  my  feet, 
where  I  was  going  to  step,  and  was  not 
noticing  the  cinder  pile.  •  •  .  It  was  not 
in  my  mind." 

it  is  not  disputed  that  it  was  customary, 
and  had  been  for  eleven  or  twelve  years,  for 
the  ashpans  of  the  engine  to  be  cleaned  upon 
the  tracks,  and  the  ashes  then  drawn  out 
from  the  tracks,  and,  when  a  lot  had  ac- 
cumulated, taken  away.  The  piles  were  of 
irregular  height. 

Plaintiff  contends  that  upon  this  evidence 
he  was  entitled  to  recover  under  proper  in- 
structions, and  that  the  trial  court  followed 
the  decision  of  the  supreme  court  of  appeals 
in  giving  an  instruction  at  the  second  trial 
which  it  had  refused  to  give  at  the  first 
trial.  The  instruction  is  as  follows: 

"The  court  instructs  the  jury  that  if  they 
believe  from  the  evidence  that  the  existence 
of  the  cinder  pile  was  known  to  the  plaintiff, 
or  that  he  had  been  working  for  the  South- 
em  Railway  at  Lawrenceville  for  more  than 
a  year,  and  that  the  cinders  had  been  piled 
at  the  same  place  in  the  way  described  by 
the  witnesses  for  many  years  prior  to  the 
accident,  and  that  the  plaintiff  had  failed 
to  show  that  he  had  made  complaint  or  ob- 
jection on  account  of  the  cinder  pile,  then 
he  assumed  the  risk  of  danger  from  the 
cinder  pile,  if  there  was  any  danger  in  it, 
and  the  act  of  Congress  approved  April  22, 
1908,  permits  this  defense,  and  the  jury 
should  find  their  verdict  for  the  defendant." 
[116  Va.  195,  81  S.  E.  99.] 

[233]  This  instruction,  it  is  contended, 
became  "the  law  of  the  case"  by  the  deci- 
sion of  the  supreme  court  of  appeals,  and 
precluded  the  instructions  which  plaintiff 
asked,  and  which  otherwise  would  have  been 
correct,  it  is  insisted,  and  should  have  been 
given. 

The  instructions  refused  presented  these 
propositions:  (1)  The  unsafe  character  or 
condition  of  the  railway  was  of  itself  no 
defense  to  the  injury  caused  thereby.  (2) 
Knowledge  of  it  by  plaintiff  might  consti- 
tute contributory  negligence  and  diminish 
the  amount  of  recovery.  (3)  If  the  company 
suffered  or  permitted  the  cinders  to  be 
placed  and  to  accumulate  alongside  of  its 
main  line  in  dangerous  proximity  to  the 
railroad  track  or  road,  and  plaintiff's  injury 
resulted  in  whole  or  in  part  from  such  n^li- 


233-236 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct. 


gence,  or  if  the  cinders  constituted  a  defect 
or  insulticiency  in  the  railroad  track,  the 
verdict  should  be  for  plain  till.  (4)  Knowl- 
edge of  the  existence  of  the  cinders  would 
not  bar  recovery,  but  it  might  be  considered 
with  other  evidence  in  determining  whether 
plaintiif  was  guilty  of  contributory  negli- 
gence; and,  if  guilty,  recovery  would  not 
be  barred,  but  the  amount  of  recovery  would 
be  diminished  in  proportion  to  such  negli- 
gence. (5)  To  charge  plaintiif  with  con- 
tributory negligence  he  must  not  only  have 
known  of  the  cinders,  but  also  the  danger 
occasioned  by  them,  or  that  the  danger  was 
so  obvious  that  a  man  of  ordinary  prudence 
would  have  appreciated  it  and  not  have  at- 
tempted to  get  upon  the  engine  at  the  time 
and  under  the  circumstances  disclosed  by 
the  evidence. 

The  rulings  of  the  trial  court  and  su- 
preme court  of  appeals  upon  the  instruction 
given  and  those  refused  make  the  question 
here  and  represent  the  opposing  contentions 
of  the  parties.  The  railway  company  con- 
tends that  piaintilTs  knowledge  of  the  cin- 
der pile  and  his  conduct  constituted  assump- 
tion of  risk  and  a  complete  defense  to  the 
action.  Ihe  plaintiff,  on  the  other  hand, 
insiats  that  such  knowledge  and  conduct 
amounted,  at  the  utmost,  L^3^j  to  no  more 
than  contributory  negligence,  and  should  not 
have  barred  recovery,  tnough  it  might  have 
reduced  the  amount  of  recovery.  Indeed, 
plaintiff  goes  farther  and  contends  that, 
whatever  might  have  been  the  evidence  re- 
specting his  knowledge  or  lack  of  knowledge 
of  the  danger,  he  did  not  assume  the  risk 
if  the  company  was  negligent;  and,  further, 
that  employees'  continuance  in  service  with 
knowledge  of  a  dangerous  condition  and 
without  complaint  does  not  bar  recovery 
under  the  act  *of  Congress.  Ue  concedes, 
however,  that  he  encounters  in  opposition 
to  his  contentions  the  ruling  in  Seaboard 
Air  Line  R.  Co.  v.  Uorton,  233  U.  S.  492, 
58  L.  ed.  1062,  L.RJ^.1915C,  1,  34  Sup.  Ct. 
Rep.  635,  Ann.  Cas.  1915B,  475,  8  N.  C.  C. 
A  834,  and  therefore  asks  a  review  of  that 
case,  asserting  that  '*the  considerations  up- 
on which  the  true  construction  of  the  act 
depends  were  not  suggested  to  the  court." 

The  argument  to  sustain  the  assertion  and 
to  present  what  he  deems  to  be  the  true 
construction  of  the  act  is  elaborate  and  in- 
volved. It  would  extend  this  opinion  too 
much  to  answer  it  in  detail.  He  does  not 
express  his  contention  in  any  pointed  propo- 
sition. He  makes  it  through  a  comparison  of 
the  sections  of  the  act,  and  insists  that  to 
retain  the  common-law  doctrine  of  the  as- 
sumption of  risk  is  to  put  the  4th  section  in 
conflict  with  the  other  sections.  The  basis 
of  the  contention  is  that  the  act  was  in- 
tended to  be  punitive  of  negligence,  and  does 
•  76 


not  cast  on  the  employees  of  carriers  the 
assumption  of  risk  of  any  condition  or  sit- 
uation caused  by  such  negligence.  This  is 
manifest,  it  is  insisted,  from  the  provisions 
of  the  3(1  section  of  the  act,  which  provides 
that  the  contributory  negligence  of  the  em- 
ployee "shall  not  bar  a  recovery;"  and  of 
the  5th  section,  which  precludes  the  carrier 
from  exempting  itself  from  liability.  This 
purpose  is  executed,  and  can  only  be  execut- 
ed, it  is  urged,  by  construing  the  words  of  § 
4  (which  we  shall  presently  quote)  to  apply 
to  "the  ordinary  risks  inherent  in  the  busi- 
ness,— the  unavoidable  risks  which  are  in- 
trinsic notwithstanding  [235]  the  per- 
formanoe  by  the  carrier  of  its  personal  du- 
ties. They  do  not  include  the  'secondary 
and  ulterior*  risks  arising  from  abnormal 
dangers  due  to  the  employer's  negligence." 
And,  further:  "The  object  of  this  section 
was  not  to  adopt  by  implicatum  the  com- 
mon-law defense  of  assumption  of  risk  of 
such  abnormal  dangers.  Its  object  was  in 
express  terms  to  exclude  the  defense  which, 
before  the  passage  of  the  act,  was  available 
to  the  carrier  in  determining  what  are  the 
*risks  of  his  employment'  assumed  by  the 
employee." 

These,  then,  are  the  considerations  which 
plaintiff  says  were  not  submitted  to  the 
court  in  the  Horton  Case,  and  which  he 
urges  to  support  his  contention  that  assump- 
tion of  risk  has  been  abolished  absolutely. 

We  are  unable  to  concur.  The  contention 
attributes  to  Congress  the  utmost  confusion 
of  thought  and  language,  and  makes  it  ex- 
press one  meaning  when  it  intended  another. 

The  language  of  §  4  demonstrates  its 
meaning.  It  provides  that  in  any  action 
brought  by  an  employee  he  "shall  not  be 
held  to  have  assumed  the  risks  of  his  em- 
ployment in  any  case  where  the  violation 
by  such  common  carrier  of  any  statute  en- 
acted for  the  safety  of  employees  contributed 
to  the  injury  or  death  of  such  employee." 
It  is  clear,  therefore,  that  the  assumption  of 
risk  as  a  defense  Lb  abolished  only  where 
the  negligence  of  the  carrier  is  in  violation 
of  some  ststute  enacted  for  the  safety  of 
employees.  In  other  cases,  therefore,  it  is 
retained.  And  such  is  the  ruling  in  the 
Horton  Case,  made  upon  due  consideration 
and  analysis  of  the  statute  and  those  to 
which  it  referred.  It  was  said:  "It  seems  to 
us  thst  §  4,  in  eliminating  the  defense  of  as- 
sumption of  risk  in  the  cases  indicated, 
quite  plainly  evidences  the  legislative  in- 
tent that  in  all  other  cases  such  assumption 
shall  have  its  former  effect  as  a  complete 
bar  to  the  action."  And  there  was  a  com- 
parison made  of  §  4  with  the  other  [836] 
sections,  and  the  relation  and  meaning  of 
each  determined,  and  the  preservation  by 
the  statute  of  the  distinction  between  as- 

241  U.  S. 


1915. 


BAUGHAM  y.  NEW  YORK,  P.  &  N.  R.  CO. 


236,  237 


4Bumption  of  risk  and  contributoxy  negli- 
^nce,  which  was  pronounced  ''simple*'  al- 
though ''sometimes  overlooked."  Cases 
were  cited  in  which  the  distinction  was 
recognized  and  applied   (p.  504). 

It  is,  however,  contended  thaft  the  condi- 
tions of  the  application  of  assumption  of 
risk  were  not  established,  and  that  "to 
charge  a  servant  with  assumption  of  risk 
the  evidence  (1)  must  show  that  he  was 
'chargeable  with  knowledge  of  the  material 
conditions  which  were  the  immediate  cause 
•of  his  injury,'  and  (2)  must  establish  his 
'appreciation  of  the  dangers  produced  by 
the  abnormal  conditions.'"  The  testimony 
•of  plaintiff  is  adduced  to  show  that  these 
•conditions  did  not  exist  in  his  case. 

He  admitted  a  knowledge  of  the  "ma- 
terial conditions/'  and  it  would  be  going 
very  far  to  say  that  a  fireman  of  an  engine 
who  knew  of  the  custom  of  depositing  cin- 
ders between  the  tracks,  knew  of  their  exist- 
ence, and  who  attempted  to  mount  an  engine 
with  a  vessel  of  water  in  his  hands  holding 
"not  over  a  gallon,"  could  be  considered  as 
not  having  appreciated  the  danger  and  as- 
sumed the  risk  of  the  situation  because  he 
had  forgotten  their  existence  at  the  time  and 
<iid  not  notice  them.  We  think  his  situation 
brought  him  within  the  rule  of  the  cases. 
Oila  Valley,  G.  &  N.  R.  Co.  v.  Hall,  232 
U.  S.  94,  102,  58  L.  ed.  521,  524,  34  Sup. 
Ct.  Rep.  229. 

It  is  objected,  however,  that  instruction 
A,  "viewed  wholly  with  reference  to  com- 
mon-law principles,"  is  erroneous  in  that  it 
omitted  to  state  as  an  element  the  apprecia- 
tion by  plaintiff  of  the  danger  of  the  situa- 
tion as  necessary  to  his  assumption  of  risk. 
But  that  objection  was  not  made  at  the 
trial.  The  objection  made  was  general,  that 
the  instruction  did  "not  correctly  state  the 
«ommon-law  doctrine  of  assumption  of  risk." 
It  was  therefore  very  indeterminate,  and  we 
cannot  say  that  the  court  considered  that 
it  was  directed  to  the  omission  [237]  to 
express  or  to  bring  into  promience  the  ap- 
preciation by  plaintiff  of  the  danger  he  in- 
curred. 

The  instruction  was  refused  by  the  trial 
court  upon  objection  by  plaintiff.  It  was 
considered  by  the  supreme  court  of  appeals, 
and  plaintiff  contended  against  it  there  only 
upon  the  ground  that  the  assumption  of 
risk  was  not  available  as  a  defense  under 
the  act  of  Congress.  He  made  the  conten- 
tion there  that  he  does  here,  and  which  we 
have  already  considered,  that  the  act  of 
Congress  precludes  the  defense  of  assump- 
tion of  risk  of  any  condition  or  situation 
caused  by  the  negligence  of  a  carrier.  And 
this  was  the  full  extent  of  plaintiff's  con- 
tention. Had  he  made  the  specific  one  now 
made,  the  supreme  court  of  appeals  would 
SO  li.  ed. 


have  dealt  with  it,  for  the  opinion  of  the 
court  shows  a  clear  recognition  of  the  ele- 
ments necessary  to  the  doctrine  of  assump- 
tion of  risk,  and  the  trial  court  as  well 
must  have  understood  them;  and  we  cannot 
suppose  that  the  court  discerned  in  plain- 
tiff's general  objection  the  specification 
which  he  now  contends  was  necessary,  and 
which  it  was  error  to  refuse. 
Judgment  affirmed. 


KINDRED  BAUGHAM,  Administirator  of 
Richard  T.  Baugham,  Deceased,  Plff.  in 
Err., 

y. 

NEW  YORK,   PHILADELPHIA,  &  NOR- 
FOLK RAILROAD  COMPANY. 

(See  S.  C.  Reporter's  ed.  237-241.) 

Error  to  state  court  —  following  deoi* 
sion  below  ^  assnmptlon  of  risk. 

1.  The  concurrent  determination  of  the 
state  trial  and  appellate  courts  that  the 
evidence  showed  that  a  deceased  railway 
employee,  for  whose  death  an  action  was 
brought  under  the  Federal  emplovers'  lia- 
bility act  of  April  22,  1908  (35  Stat,  at  L. 
65,  chap.  149,  Comp.  Stat.  1913,  §  8657), 
as  amended  by  the  act  of  April  5,  1910  (36 
Stat,  at  L.  291,  chap.  143),  assumed  the 
risk  of  the  danger  which  resulted  in  his  in- 
jury and  death,  will  not  be  disturbed  by 
the  Federal  Supreme  Court  on  writ  of  er- 
ror unless  clearly  erroneous. 

[For  other  cases,  see  Appeal  and  Error,  Yin. 
m,  1.  in  Digest  Sup.  Ct  1908.] 

Master  and  servant  —  employers'  lia- 
bility —  assumption  of  risk. 

2.  The  express  declaration  by  the  Fed- 

NoTE. — On  error  to  state  court  in  cases 
arising  imder  the  Federal  employers'  lia- 
bility act — see  note  to  Great  Northern  R. 
Co.  V.  Knapp,  ante,  745. 

On  the  constitutionality,  application,  and 
effect  of  the  Federal  employers'  liability 
act — see  notes  to  Lamphere  v.  Oregon  R.  ft 
Nav.  Co.  47  LJLA.(N.S.)  38,  and  Seaboard 
Air  line  R.  Co.  v.  Horton,  L.R.A.1915C, 
47. 

Generally,  as  to  servant's  assumption  of 
risk — see  notes  to  Pidcock  ▼.  Union  P.  R. 
Co.  1  Klt-A.  131;  Foley  ▼.  Pettee  Mach. 
Works,  4  L.R.A.  51 ;  Howard  y.  Delaware  ft 
H.  Canal  Co.  6  L.RA.  75;  Hunter  v.  New 
York,  0.  ft  W.  R.  Co.  6  L.R.A.  246;  Georgia 
P.  R.  Co.  V.  Dooly,  12  L.R.A.  342;  Kehler 
V.  Schwenk,  13  L.R.A.  374,  and  Southern 
P.  R.  Co.  V.  Seley,  38  L.  ed.  U.  S.  39L 

On  Volenti  non  fit  injuria  as  defense 
to  action  by  injured  servant — see  note  to 
O'Maley  v.  South  Boston  Gaslight  Co.  47 
LJR.A.  161. 

As  to  whether  servant  may  assume  the 
risk   of   dangers   created   by   the   master's 
negligence — see  note  to  Scheurer  v.  Banner 
Rubber  Co.  28  L.R.A.<NJ3.)   1215. 
62  ^'Va 


238-240 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Teem, 


eral  employers'  liability  act  of  April  22, 
1908  (35  Stat,  at  L.  65,  chap.  149,  Ck>mp. 
Stat.  1913,  §  8657),  §  4,  that  an  employee 
shall  not  be  held  to  have  assumed  the  risk 
of  his  employment  in  any  case  where  the 
violation  by  the  carrier  of  any  statute  en- 
acted for  the  safety  of  employees  contrib- 
uted to  his  injury  or  death,  must  be  deemed 
to  leave  in  force  in  all  other  cases  the  de- 
fense of  the  assumption  of  risk  of  the  car- 
rier's negligence,  notwithstanding  the  pro- 
vision of  t£e  3d  section  of  that  act,  that 
the  contributory  negligence  of  the  employee 
"shall  not  bar  a  recovery,"  and  that  of  the 
5th  section,  precluding  the  carrier  from 
exempting  itself  from  liability. 
(For  other  cases,  see  Master  and  Servant,  II. 
b,  In  Digest  Sup.  Ct  1908.] 

[No.  327.] 

Argued  April  27,  1916.     Decided  May  22, 

1916. 

IN  ERROR  to  the  Supreme  Court  of  Ap- 
peals of  the  State  of  Virginia  to  review 
a  judgment  denying  a  writ  of  error  to  the 
Circuit  Court  of  Norfolk  County,  in  that 
state,  to  review  a  judgment  in  favor  of 
defendant  in  an  action  for  death,  brought 
under  the  Federal  employers'  liability  act 
Affirmed. 
The  facts  are  stated  in  the  opinion. 

Mr.  Edward  P.  Buford  argued  the  cause 
and  filed  for  plaintiff  in  error. 

Mr.  Thomas  H.  Willcox  argued  the 
cause,  and,  with  Mr.  Francis  I.  Qowen, 
filed  a  brief  for  defendant  in  error: 

Mr.  Justice  McKenna  delivered  the  opin- 
ion of  the  court: 

Action  for  danuiges  under  the  Federal 
employers'  liability  act  [35  Stat,  at  L.  65, 
chap.  149,  Comp.  Stat.  1913,  §  8657,  36 
Stat,  at  L.  291,  chap.  143],  brought  in  the 
circuit  court  of  Norfolk  county,  state  of 
Virginia,  by  plaintiff  in  error  (we  shall 
call  him  plaintiff),  administrator  of  the 
estate  of  Richard  T.  Baugham. 

The  ^oimd  of  action  was  that  the  rail- 
road company,  an  interstate  carrier,  caused 
by  its  negligence  the  death  of  plaintiff's  in- 
testate while  he  was  employed  and  engaged 
in  such  commerce. 

Richard  T.  Baugham  was  between  the 
ages  of  eighteen  and  twenty  years,  and  was 
engaged  by  the  railroad  company  to  act  as 
brakeman  in  its  yard  at  Port  Norfolk,  Vir- 
ginia. On  the  second  day  of  his  employ- 
ment, while  mounting  a  freight  car  that 
was  being  transferred  from  the  wharf  of 
the  company  to  a  barge  moored  at  the 
wharf,  [830]  he  was  killed  by  being 
crushed  between  that  car  and  other  cars 
which  were  upon  the  barge. 
•  78 


There  were  four  tracks  on  the  barge.  Be- 
tween the  outside  and  center  tracks,  of 
which  there  were  two,  there  was  sufficient 
space  for  an  employee  to  mount  in  safety 
cars  moving  between  those  tracks.  There 
was  also  sufficient  space  between  the  cen- 
ter tracks  for  some  distance  from  where 
they  entered  the  barge  from  the  wharf.  But 
these  tracks  gradually  converged  until  the 
space  between  them  so  diminished  that  cars 
being  moved  on  one  center  track  would  al- 
most touch  those  standing  on  the  other 
center  track.  The  roofs  of  the  cars  would 
sometimes  touch. 

By  reason  of  this  proximity  of  the  cars 
it  is  alleged  that  serious  and  deadly  injury 
would  be  inflicted  upon  the  servants  and 
employees  of  the  company  if  they  should 
be  caught  between  the  cars.  Plaintiff's  in- 
testate was  so  caught  and  received  injuries 
from  which  he  died. 

It  was  the  duty  of  the  company,  it  was 
alleged,  to  have  admonished  and  warned 
the  deceased  of  the  difficulties,  dangers,  and 
perils  attendant  upon  his  service  aAd 
duties  as  brakeman,  so  that  he  might  safe- 
ly have  performed  them;  but  that  the  com- 
pany wholly  failed  to  do  so,  and  that  in 
consequence  the  deceased,  in  the  perform- 
ance of  his  duties  as  brakeman  on  trains 
being  transferred  from  the  wharf  to  the 
barge,  and  while  ascending  one  of  the  cars, 
was  cau^t  and  confined  between  the  eaves 
of  the  roof  of  the  car  which  he  was  ascend- 
ing and  the  eaves  of  the  roof  or  roofs  of  an- 
other ear  or  cars  and  fatally  injured. 

Damages  were  prayed  in  the  sum  of  $50,- 
000. 

The  company  pleaded  not  guilty,  and,  as 
special  defenses,  that  the  deceased  was 
guilty  of  contributory  negligence,  and  that 
he  ''assumed,  when  he  entered  the  employ- 
ment of  the  company,  the  risk  of  being  in- 
jured in  the  manner  charged  in  the  declara- 
tion." 

The  case  was  tried  ta  a  jury.  Upon  the 
conclusion  of  [240]  the  testimony  the  com- 
pany demurred  to  the  evidence,  and  plain- 
tiff joined  in  the  demurrer;  whereupon,  the 
jury  being  required  to  say  what  damages 
the  plaintiff  sustained  if  judgment  should 
be  given  for  plaintiff  upon  the  evidence,  re- 
sponded* "that  if,  upon  the  demurrer  to  the 
evidence,  the  law  be  for  the  plaintiff,  then 
we  find  for  the  plaintiff,  and  assess  the  dam- 
ages which  he  ought  to  recover  at  $10,000." 

The  demurrer  to  the  evidence  was  sus- 
tained, and  it  was  adjudged  that  plaintiff 
take  nothing  by  his  suit  The  judgment 
was  affirmed  by  the  supreme  court  of  i^- 
peals. 

The  tracks  on  the  barge  and  the  operation 
of  the  cars  can  easily  be  visualized.  There 
were  four  tracks,  two  center  ones  and  two 

141  V.  S. 


1015. 


CHESAPEAKE  &  0.  R.  CO.  ▼.  CAKNAHAN. 


240,  241 


outside  ones,  the  former  converging  as  they 
approached  until  they  came  so.  close  to- 
gether that  any  one  caught  between  cars 
moving  upon  them  would  be  crushed.  The 
dcccastd,  wliile  ascending  a  moving  car, 
was  cauglit  between  it  and  a  car  standing 
on  the  barge  and  fatally  injured.  The  in- 
quiry is — and  upon  it  rests  the  determina- 
tion of  the  case — What  knowledge  had  the 
deceased  of  this  situation,  and  what  was 
the  effect  of  that  knowledge  upon  the  lia- 
bility, if  any,  of  the  company? 

Plaintiff  makes  two  contentious:  (1) 
That  the  company  failed  to  warn  deceased 
pi  the  danger  to  which  he  was  exposed,  and 
that  such  failure  was  negligence  on  the 
part  of  the  company.  (2)  That  the  con- 
vergence of  the  tracks  on  the  barge  was  a 
defect  or  insufficiency  due  to  the  negligence 
of  the  company  in  its  track,  roadbed,  barge, 
and  equipment. 

The  railroad  company  opposes  plaintiff's 
contentions  and  insists  that  the  deceased 
assumed  the  risk  of  the  danger  which  re- 
sulted in  his  injury  and  death.  A  determi- 
nation of  these  contentions  depends  upon 
the  evidence,  and,  considering  it,  the  state 
courts,  trial  and  appellate,  decided  against 
the  contentions  of  plaintiff,  and  in  so  doing 
in  effect  held  that  the  conditions  of  the  as- 
sumption [241]  of  risk  by  deceased  were 
satisfied.  Gila  Valley,  G.  k  N.  R.  Co.  v. 
Hall,  232  U.  S.  94,  102,  68  L.  ed.  521,  624, 
34  Sup.  Ct.  Rep.  229. 

We  have  considered  the  evidence,  and  we 
cannot  say  that  the  conclusion  was  palpably 
erroneous,  and  following  the  rule  expressed 
in  Great  Northern  R.  Co.  y.  ^napp,  240 
U.  S.  464,  466,  ante,  746,  761,  36  Sup.  Ct. 
Rep.  399,  and,  as  having  analogy,  Chicago 
Junction  R.  Co.  v.  King,  222  U.  S.  222,  66  L. 
ed.  173,  32  Sup.  Ct.  Rep.  79,  we  announce 
our  concurrence  without  discussion. 

It  is  further  contended  ''that,  as  a  mat- 
ter of  law,  the  common-law  assumption  of 
risk  is  not  a  defense  in  bar  of  an  action 
under  the  act  of  Congress."  The  contention 
It  untenable.  Jacobs  v.  Southern  R.  Co.  241 
U.  S.  229,  ante,  970,  36  Sup.  Ct.  Rep.  688. 

Judgment  affirmed. 


CHESAPEAKE  &  OHIO  RAILWAY  COM- 
PANY, Plff.  in  Err., 

V. 

ASA  P.  CARNAHAN. 
(See  S.  C.  Reporter's  ed.  241-245.) 

Jory  —  infringement  of  right  ^  num- 
ber of  Jurors  ^  action  nnder  Federal 
statute. 

1.  A   party  to   an   action   in  a  state 

•0  li.  ed. 


court  under  the  Federal  employers'  liability 

act  of  April  22,  1008    (35  SUt.  at  L.  65, 

chap.   149,  Comp.  Stat.  1913,  §  8657),  as 

amended  by  the  act  of  April  5,  1010    (36 

Stat,  at  L.  291,  chap.  143),  is  not  entitled 

to  a  jury  of  twelve  men,  where  the  local 

practice  permits  a  jury  of  less  than  that 

number,  because  of  the  requirement  of  U. 

S.  Const.,  7th  Amend.,  that  trials  by  jury 

be  according  to  the  course  of  the  common 

law,  *.  €.,  by  a  jury  of  twelve. 

[For  other  cases,  see  Jury,  I.  d,  2,  in  Dlsest 
Sup.  Ct.  1908.) 

Trial  —  InstructionR  —  employers'  lia- 
bility. 

2.  Instructing  the  jury  in  an  action 
under  the  Federal  employers'  liability 
act  of  April  22,  1908  (35  Stat,  at  L.  65, 
chap.  149,  Comp.  Stat.  1913,  §  8657),  as 
amended  by  the  act  of  April  5,  1910  (36 
Stat,  at  L.  291,  chap.  143),  that  they  may 
take  into  consideration,  in  assessing  the 
damages,  the  ''pain  and  suffering  of  the 
plaintiff,  his  mental  anguish,  the  bodily 
injury  sustained  by  him,  his  pecuniary  loss, 
his  loss  of  power  and  capacity  for  work 
and  its  effect  upon  his  future,  not,  however, 
in  excess  of  $35,000,  as  to  tliem  may  seem 
just  and  fair,"  is  not  objectionable  as  per- 
mitting the  jury  to  indulge  in  speculation 
as  to  future  results,  and  as  leavini;  tho 
amount  of  damages  to  conjecture  without 
regard  to  the  evidence,  where  the  court  ex- 
plicitly enjoined  upon  the  jury  that  there 
must  be  a  proximate  and  causal  relation 
between  the  damages  and  the  defendant's 
negligence,  and  the  reference  to  the  sum 
mentioned  was  a  limitation  of  the  amount 
slated  in  the  declaration. 
[For  other  cn.<«es,  see  Trial,  YII.  a,  in  Digest 
Sup.  Ct  1908.] 

[No.  743.] 

Argued   and   submitted   April    19   and   20, 
1916.     Decided  May  22,  1916. 


IN  ERROR  lo  the  Supreme  Court  of  Ap- 
peals  of  the  State  of  Virginia  to  review 
a  judgment  which  affirmed  a  judgment  of 
the  Cii'cuit  Court  of  Hanover  County,  in 
that  state,  in  favor  of  plaintiff  in  an  ac- 
tion under  the  Federal  employers'  liability 
act.    Affirmed. 

See  same  case  below,  —  Va.  — ,  86  S.  E. 
8G3. 

The  facts  are  stated  in  the  opinion. 

Note. — On  number  and  agreement  of 
jurors  necessary  to  constitute  a  valid  ver- 
dict— see  notes  to  State  v.  Bates,  43  L.R.A. 
33,  and  Silsby  y.  Foote,  14  L.  ed.  U.  S. 
394. 

On  the  constitutionality,  application,  and 
effect  of  the  Federal  employers'  liability 
act — see  notes  to  Lamphere  v.  Oregon  R. 
&  Nav.  Co.  47  L.R.A.(N.8.)  38,  and  Sea- 
board  Air  Line  R.  Co.  t.  Horton,  L.RJL 
1915C,  47. 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Term, 


Mr.  Bayld  H.  Iieake  argued  the  cause, 
and,  with  Mr.  Walter  Leake,  filed  a  brief 
for  plaintiff  in  error: 

Congress,  in  passing  the  Federal  em- 
ployers' liability  act,  evidently  intended 
that  the  Federal  statute  should  be  con- 
strued in  the  light  of  previous  decisions  of 
the  Federal  courts  in  all  substantive  mat- 
ters, such  as,  for  instance,  the  rule  as  to 
burden  of  proof  where  contributory  negli- 
gence is  relief  upon. 

Central  Vermont  R.  Co.  v.  White,  238 
U.  S.  512,  69  L.  ed.  1436,  35  Sup.  Ct.  Rep. 
865,  Ann.  Cas.  1916B,  252,  9  N.  C.  C.  A. 
265. 

A  substantive  right  or  defense  arising 
under  the  Federal  law  cannot  be  lessened  or 
destroyed  by  a  rule  of  procedure. 

Norfolk  Southern  R.  Co.  v.  Ferebee,  238 
U.  S.  269,  59  L.  ed.  1303,  35  Sup.  a.  Rep. 
781;  Atlantic  Coast  Line  R.  Co.  v.  Bur- 
nette,  239  U.  S.  199,  ante,  226,  36  Sup.  Ct. 
Rep.  75. 

By  the  instruction  complained  of  the 
plaintiff  is  allowed  to  recover,  among  other 
things,  for  the  injury  received  by  him  and 
its  effects  upon  his  future.  By  this  lan- 
guage the  jury  were  given  occasion  for  in- 
definite speculation,  and  they  were  invited 
to  a  consideration  of  elements  wholly  irrele- 
vant to  the  true  problem  presented, — to  in- 
dulge in  conjecture  instead  of  weighing  es- 
tablished facts. 

Norfolk  &  W.  R.  Co.  v.  Holbrook,  236  U. 

5.  630,  59  L.  ed.  393,  35  Sup.  Ct.  Rep.  143, 
7  N.  C.  C.  A.  814;  Richmond  &  D.  R.  Co.  v. 
EUiott,  149  U.  S.  266,  269,  37  L.  ed.  728, 
731,  15  Sup.  Ct.  Rep.  837;  Boston  A  A.  R. 
Co.  V.  O'Reilly,  168  U.  S.  334,  39  L.  ed.  1006, 
15  Sup.  Ct.  Rep.  830. 

In  order  that  a  recovery  for  future  pain 
and  suffering  be  allowable,  there  must  be 
evidence  tending  to  show  that  such  pain 
was  reasonably  certain  to  result  from  the 
injury. 

Kennon  v.  Gilmer,  131  U.  S.  22,  26,  33  L. 
ed.  110,  112,  9  Sup.  Ct.  Rep.  696;  Washing- 
ton &  G.  R.  Co.  V.  Harmon  (Washington  &, 
G.  R.  Co.  V.  Tobriner)  147  U.  S.  584,  37  L. 
ed.  289,  13  Sup.  Ct.  Rep.  667;  McDermott  ▼. 
Severe,  202  U.  S.  600,  50  L.  ed.  1162,  26  Sup. 
Ct.  Rep.  709;  Smith  v.  Milwaukee  Builders' 

6,  T.  Exch.  91  Wis.  360,  30  L.RJk.  504,  51 
Am.  St.  Rep.  912,  64  N.  W.  1041;  Block  v. 
Milwaukee  Street  R.  Co.  89  Wis.  371,  27 
hJRJi.  365,  46  Am.  St  Rep.  849,  61  N.  W. 
1101;  Ford  v.  Des  Moines,  106  Iowa,  94,  75 
N.  W.  630^  4  Am.  Neg.  Rep.  379 ;  Shultz  v. 
Griffith,  103  Iowa,  150,  40  LJtJk.  117,  72 
N.  W.  446;  Norfolk  R.  A  Light  Co.  V.  Sprat- 
ley,  103  Va.  388,  49  S.  E.  502;  Watson, 
Damages  for  Personal  Injuries,  §  604,  p. 
720. 

It  is  not  the  province  of  a  jury  to  allow 
•80 


such  damages  as  seem  to  them  just  and  fair, 
but  they  can  only  give  the  damages  proved 
by  the  evidence  to  have  been  the  natural 
and  proximate  result  of  the  negligent  act 
complained  of. 

Milwaukee  A  St.  P.  R.  Co.  y.  Kellogg,  94 
U.  S.  469,  24  L.  ed.  256;  Scheffer  v.  Wash- 
ington City,  V.  M  &  G.  S.  R.  Co.  105  U. 
S.  249,  26  L.  ed.  1070;  Vance  v.  W.  A.  Van- 
dercook  Co.  170  U.  S.  468,  42  L.  ed.  1111,  18 
Sup.  Ct.  Rep.  645;  Allison  v.  Fredericks- 
burg, 112  Va.  243,  48  L.RA.(NJ3.)  93,  71  S. 
E.  525;  Fowlkes  ▼.  Southern  R.  Co.  96  Va. 
742,  32  S.  E.  464. 

Messrs.  David  H.  Leake  and  Walter  Leake 
also  united  in  a  joint  brief  raising  the  ques- 
tion of  the  application  of  the  7  th  Amend- 
ment to  the  Federal  Constitution,  an  ab- 
stract of  which  will  be  found  in  connection 
with  the  report  of  Chesapeake  &  0.  R.  Co. 
V.  Kelly,  post,  1117. 

Messrs.  €.  W.  Allen  and  Homan  W. 
Walsh  submitted  the  cause  for  defendant 
in  error: 

A  court  cannot  assume  that  the  jury  dis- 
regarded an  instruction. 

Graham  v.  United  States,  231  U.  S.  474, 
58  L.  ed.  319,  34  Sup.  Ct.  Rep.  148;  Penn- 
sylvania Co.  V.  Roy,  102  U.  S.  451,  458,  26 
L.  ed.  141, 145, 10  Am.  Neg.  Cas.  593;  South- 
em  P.  Co.  ▼.  HaU,  41  C.  C.  A.  58,  100  Fed. 
760. 

Future  damages  must  be  recovered  in  this 
one  action.  The  injury  is  entire,  and  it  is 
the  duty  of  the  jury  to  assess  the  plain- 
tiff's entire  loss,  past  and  future.  While  it 
may  be  true  that  any  particular  loss  in  fu- 
ture may  not  be  considered,  as  being  specu- 
lative and  remote,  it  is  also  true  that  the 
jury  should  consider  his  loss  in  future. 

Richmond  &  D.  R.  Co.  v.  Elliott,  149  U.  S. 
266,  37  L.  ed.  728,  731, 13  Sup.  Ct.  Rep.  837; 
Denver  A  R.  G.  R.  Co.  v.  Roller,  49  L.RJL 
77,  41  C.  C.  A.  34,  100  Fed.  738;  Washing- 
ton &  G.  R.  Co.  V.  Harmon  (Washington  ft 
G.  R.  Co.  V.  Tobriner)  147  U.  S.  671,  37  L. 
ed.  284,  13  Sup.  Ct.  Rep.  557;  McDermott 
▼.  Severe,  202  U.  S.  600,  610,  50  L.  ed.  1162, 
1168,  26  Sup.  Ct.  Rep.  709;  Chesapeake  ft  0. 
R.  Co.  v.  Hoffman,  109  Va.  44,  66,  63  S.  E. 
432. 

Direct  evidence  of  future  pain  and  suf- 
fering is  not  essential  to  justify  the  jury  in 
considering  future  pain  and  suffering  in 
their  estimate  of  damages. 

District  of  Columbia  ▼.  Woodbury,  136 
U.  S.  450,  457,  34  L.  ed.  472,  475,  10  Sup. 
Ct.  Rep.  990;  Keimon  v.  Gilmer,  131  U.  S. 
22,  24,  33  L.  ed.  110,  112,  0  Sup.  Ct.  Rep. 
696;  McDermott  ▼.  Severe,  202  U.  S.  600, 
610,  50  L.  ed.  1162,  1168,  26  Sup.  Ct.  Rep. 
709;  Watson,  Damages  for  Personal  In- 
juries, I  887. 

141  V.  8. 


1915. 


CHESAPEAKE  &  0.  H.  CO.  ▼.  CARNAHAN. 


242,  243 


It  IB  contended  the  mention  of  the  sum 
in  excess  of  which  the  jury  might  not  find, 
stamped  that  sum  with  judicial  approval  as 
a  sum  they  should  find.  But  so  to  say  is  to 
strike  out  the  clause  ''as  to  them  may  seem 
just  and  fair."  For  that  clause  relegated 
the  amount  of  the  damages  to  the  jury,  and 
by  it  the  coui't  expressly  disclaims  any  sug- 
gestion as  to  the  amount  to  be  found, — 
any  intimation  in  the  matter. 

Norfolk  A  W.  R.  Co.  v.  Earnest,  229  U. 
S.  114,  119,  57  L.  ed.  1096,  1100,  33  Sup. 
Ct.  Rep.  654,  Ann.  Cas.  1914C,  172. 

The  phrase  ''as  to  them  may  seem  just 
and  fair"  is  altogether  usual,  and  it  pre- 
cisely sets  forth  the  true  measure  of  dam- 
ages in  cases  of  this  kind. 

Vicksburg  &  M.  R.  Co.  v.  Putnam,  118  U. 
S.  645,  30  L.  ed.  257,  7  Sup.  Ct.  Rep.  1,  10 
Am.  Neg.  Cas.  574;  St.  Louis,  J.  M.  &  S.  R. 
Co.  V.  Needham,  3  C.  C.  A.  129, 10  U.  S.  App. 
330,  52  Fed.  371. 

The  amount  of  the  verdict  is  a  fact  with 
which  tins  court  does  not  concern  itself. 

St.  Louis,  L  M.  &  S.  R.  Co.  v.  Craft,  237 
U.  S.  648,  59  L.  ed.  1160,  35  Sup.  Ct.  Rep. 
704,  9  N.  C.  C.  A.  754. 

At  the  same  time,  it  may  not  be  improper 
to  call  attention  to  the  fact  that  there  is 
nothing  in  the  amount  of  the  verdict  to  show 
that  the  jury  were  guided  in  arriving  at  the 
sum  awarded  by  any  improper  motives. 
The  amount  is  large  in  one  sense,  but  the 
injury  and  pain  experienced  were  most 
severe  and  intense;  and  comparatively,  the 
verdict  is  not  startling. 

Ibid.;  Great  Northern  R.  Co.  y.  Otos,  230 
U.  6.  352,  ante,  324,  36  Sup.  Ct  Rep.  126. 
Seaboard  Air  Line  R.  Co.  v.  Koennecke,  239 
U.  S.  352,  ante,  324,  36  Sup.  Ct.  Rep.  126. 

Messrs.  C.  W.  Allen  and  Homan  W.  Walsh 
also  united  in  a  joint  brief  raising  the  ques- 
tion of  the  application  of  the  7th  Amend- 
ment to  the  Federal  Constitution,  an  ab- 
stract of  which  will  be  found  in  connection 
with  the  report  of  Chesapeake  &  0.  R.  Co.  v. 
Kelly,  post,  1117. 

Mr.  Justice  McKenna  delivered  the  opin- 
ion of  the  court: 

Error  to  review  a  judgment  in  favor  of 
defendant  in  error  for  $25,000  damages  for 
injuries  sustained  through  the  asserted  neg- 
ligence of  plaintiff  in  error. 

The  action  was  at  law  under  the  employ- 
ers' liability  act  of  Congress.  35  Stat,  at 
L.  65,  chap.  149,  Comp.  SUt.  1913,  §  8657; 
86  Stat,  at  L.  291,  chap.  143.  In  accord- 
ance with  the  state  law  it  was  tried  to  a 
jury  of  seven.  This  is  assigned  as  error. 
The  only  other  assignment  is  upon  an  in- 
struction of  the  court  as  to  the  elements 
of  damage.  There  is  no  dispute  as  to  the  I 
fact  of  injury,  or  that  it  was  received  in 
•0  li.  ed. 


interstate  conunerce,  and  by  the  negligence 
of  plaintiff  in  error. 

( 1 )  The  first  assignment  of  error  is  based 
upon  a  challenge  by  the  railway  company 
to  the  array  of  jurors  on  the  ground  that 
the  jury  was  not  summoned,  selected, 
formed,  and  constituted  as  provided  by 
the  Constitution  of  the  United  States.  In 
other  words,  the  contention  is  ''that  in  the 
trial  of  cases  under  the  employers'  liability 
act  of  Congress  the  parties  are  entitled  to 
a  common-law  jury  of  twelve  men,  as  pro- 
vided for  by  the  7th  Amendment  to  the  Con* 
stitution  of  the  United  States." 

The  assignment  is  without  foundation. 
Minneapolis  &  St.  L.  R.  Co.  v.  Bombolis,  de- 
cided this  day  [241  U.  S.  211,  ante,  961,  36 
Sup.  Ct.  Rep.  595]. 

[243]  (2)  The  instruction  which  is  the 
basis  of  the  second  assignment  of  error  ia 
as  follows: 

"The  court  instructs  the  jury  that  if  they 
believe  from  a  preponderance  of  the  evidence 
that  the  defendant  is  liable  to  the  plaintiff 
in  this  action,  then  in  assessing  damages 
against  the  defendant,  they  may  take  into 
consideration  the  pain  and  suffering  of  the 
plaintiff,  his  mental  anguish,  the  bodily 
injury  sustained  by  him,  his  pecuniary  loss, 
his  loss  of  power  and  capacity  for  work  and 
its  effect  upon  his  future,  not  however,  in 
excess  of  $35,000,  as  to  them  may  seem  just 
and  fair."     [—  Va.  — ,  86  S.  E.  863.] 

It  is  objected  (a)  that  the  instruction 
permitted  a  recovery  in  damages  not  only 
for  those  which  proximately  resulted  from 
the  injury,  but  also  for  '*its  effects  upon  the 
future,"  which  involved  a  consideration  of 
consequences  which  might  be  essentially 
speculative  and  remote,  (b)  The  instruc- 
tion directed  the  jury  that  the  damages 
might  be  in  such  sum  not  in  excess  of  $35,- 
000  as  to  them  might  seem  just  and  fair. 
By  the  instruction  the  court  called  the  at- 
tention of  the  jury  to  a  certain  sum  and 
gave  judicial  approval  of  it,  giving  them  to 
understand  that  tliey  could  give  such  sum 
as  they  might  deem  just  and  fair,  without 
regard  to  the  damages  the  evidence  might 
prove. 

The  injury  received  is  pertinent  to  the 
consideration  of  the  instruction.  In  the 
collision  of  two  trains  defendant  in  error» 
who  was  a  fireman,  "was  caught"  (we  quote 
from  the  opinion  of  the  supreme  court) 
"from  his  knee  of  his  right  leg  down,  be« 
tween  the  tank  on  the  tender  and  the  boiler 
head  in  the  cab  of  his  engine,  and  remained 
pinned  in  that  position  for  forty-five  or 
fifty  minutes  before  he  was  extricated  by 
the  efforts  of  his  fellow  workmen.  His  leg 
was  so  badly  mashed  and  burned  that  it 
eventually  had  to  be  amputated  at  a  point 
between  the  knee  and  the  thigh,  and  it  is 


243-245,  248 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


for  these  injuries  and  his  consoquent  suf- 
ferings that  he  sues  to  recover  damages." 

[244]  The  supreme  court  expressed  the 
view  that  the  speculation  of  future  results 
which  the  railway  company  professed  to  ap- 
prehend was  not  left  by  the  instruction  for 
the  jury  to  indulge,  nor  did  the  instruction 
commit  the  amount  of  damages  to  the  con- 
jecture of  the  jury  independently  of  the 
evidence  in  the  case.  The  contention  made 
here  was  explicitly  rejected,  viz.,  that  the 
instruction  permitted  the  jury  to  take  into 
consideration  the  "possible  future  physical 
effects  from  the  injury,  such  as  future  suf- 
fering in  the  absence  of  evidence  as  to  the 
probability  of  such."  The  court  remarked 
that  it  would  be  a  strained  construction  of 
the  language  of  the  Instruction  ''to  hold  that 
it  referred  to  future  suffering,  and  that 
damages  not  the  proximate  result  of  the 
injuries  received  were  included  under"  it, 
and  that,  besides,  such  conclusion  was  pre- 
cluded by  an  instruction  given  at  the  re- 
quest, of  the  railway  company,  which  was 
"that  in  order  for  the  plaintiff  to  recover 
in  this  case  he  must  prove  by  a  preponder- 
ance of  the  evidence  that  the  injuries  he 
sustained  were  the  direct  and  proximate  re- 
sult of  the  negligence  of  the  defendant." 

The  comment  of  the  court  is  accurate  and 
we  can  add  nothing  to  it.  The  principle  is 
established  that  when  the  evidence  in  a 
case  shows  that  there  will  be  future  effects 
from  an  injury,  an  instruction  which  justi- 
fies an  inclusion  of  them  in  an  award  of 
damages  is  not  error.  Washington  &  G. 
R.  Ck).  V.  Harmon  (Washington  &  G.  R.  Co. 
V.  Tobriner),  147  U.  S.  671,  37  L.  ed.  284, 
13  Sup.  Ct.  Rep.  657 ;  McDermott  v.  Severe, 
202  U.  S.  600,  60  L.  ed.  1162,  26  Sup.  Ct. 
Rep.  709. 

It  is  also  objected  that  the  instruction 
"allowed  the  jury  to  indulge  in  speculation 
and  conjecture;  invited  their  attention  to 
the  sum  of  $36,000,  and  allowed  the  jury 
to  give  mich  sum  as  damages  as  to  them 
might  'seem  just  and  fair*  without  stating 
that  the  damages  could  be  only  such  as  were 
proved  by  the  evidence  to  have  proxi- 
mately resulted  from  the  negligent  aet  com- 
plained of." 

The  objection  if  untenable.  As  we  have 
Been,  the  court  [245]  explicitly  enjoined 
upon  the  jury  that  there  must  be  a  proxi- 
mate and  causal  relation  between  the  dam- 
ages and  the  negligence  of  the  company,  and 
the  reference  to  the  sum  of  $36,000  was  a 
limitation  of  the  amount  stated  in  the  dec- 
laration. There  could  have  been  no  misun- 
derstanding of  the  purpose  of  the  instruc- 
tion. Norfolk  A  W.  R.  Co.  v.  Earnest,  220 
U.  S.  114,  119,  67  L.  ed.  1096,  1100,  33  Sup. 
Ct.  Rep.  654,  Ann.  Cas.  19140,  172. 

Judgment  affirmed. 
•  82 


PACIFIC  MAIL  STEAMSHIP  COMPANY, 

Petitioner, 
v. 

ED.  SCHMIDT. 
(See  S.  C.  Reporter's  ed.  245-261.) 

Seamen  —  wages  —  penalty  for  default 

in  payment. 

The  penalty  imposed  by  U.  S.  Rev. 
Stat.  §  4520,  as  amended  by  the  act  of  De- 
cember 21,  1898  (30  Stat,  at  L.  756,  chap. 
28,  Clomp.  Stat.  1913,  §  8320),  §  4,  upon 
a  shipowner  for  each  day  during  which, 
"without  sufficient  cause,"  he  neglects  or 
refuses  to  pay  a  seaman's  wa^es  after  cer- 
tain specified  periods,  is  not  incurred  dur- 
ing the  delay  in  payment  occasioned  by  an 
attempt  to  secure  a  revision  in  a  Federal 
circuit  court  of  appeals  of  doubtful  ques- 
tions of  law  and  fact  by  an  appeal  from  a 
decree  of  a  district  court  for  such  wages 
and  penalties  for  delay. 
[For  other  cases,  see  Seamen,  In  Digest  Sup. 

Ct.  1908.1 

[No.  323.] 

Argued  April  26  and  26, 1016.    Decided  May 

22,  1916. 

ON  WRIT  of  Certiorari  to  the  United 
States  Circuit  Court  of  Appeals  for  the 
Ninth  Circuit  to  review  a  decree  which  af- 
firmed, with  increased  penalties,  a  decree 
of  the  District  0>urt  for  the  Northern  Dis- 
trict of  California  in  favor  of  the  libellant 
in  a  libel  filed  by  a  seaman  against  a  ship- 
owner for  wages  and  penalties  for  default 
in  pa3rment.  Reversed  and  decree  of  Dis- 
trict Court  affirmed. 

See  same  case  below,  130  C.  C.  A.  667, 
214  Fed.  513. 

The  facts  are  stated  in  the  opinion. 

Mr.  William  R.  Harr  argued  the  cause, 
and,  with  Mr.  Charles  H.  Bates,  filed  a 
brief  for  petitioner. 

Mr.  James  W.  Ryan,  by  special  leave, 
argued  the  cause,  and,  with  Mr.  John  L. 
McNab,  filed  a  brief  for  respondent. 

Mr.  Justice  Holmes  delivered  the  opinion 
of  the  court: 

This  is  a  libel  in  personam  for  $30.33, 
wages  and  victualing  money  from  Septem- 
ber 24  to  October  1,  1913,  and  for  a  sum 
equal  to  one  day's  pay  for  every  day  dur- 
ing which  payment  had  been  or  should  be 
delayed.  The  libel  was  filed  on  October 
20,  1913.  On  November  6,  1913,  the  dis- 
trict court  entered  a  decree  for  $151.59 
with  interest  from  the  date  of  its  decree, 
and  $36.25  costs.  209  Fed  264.  The 
libellee,  the  present  petitioner,  appealed, 
but  without  success,  and  on  May  18,  1014, 
the  decree  was  affirmed  with  directions  to 
add  one  day's  pay  for  every  day  since  the 

141  V.  8. 


1015. 


PACIFIC  MAIL  STEAMSHIP  CO.  v.  SCHMIDT. 


248-251 


former  decree.  On  October  6,  1914,  an 
order  was  made  by  the  circuit  court  of  ap- 
peals that  the  petitioner  should  pay  to  the 
proctor  for  the  appellee  the  amount  of  the 
judgment  of  the  district  court  with  costs 
and  proctor's  fee  as  allowed,  and  should 
pay  to  the  clerk  of  the  district  court  the 
additional  amount  to  the  date  of  deposit 
of  the  penalty  adjudged  to  be  continuing; 
to  abide  the  result  of  an  application  to  this 
•court  for  a  writ  of  certiorari,  and  that 
upon  such  payment  the  running  of  the 
penalty  should  cease  so  far  as  the  judg- 
ment of  the  circuit  court  of  appeals  was 
concerned. 

The  facta  are  these:  On  July  24,  1913, 
the  libellant  shipped  as  chief  steward,  under 
Articles,  from  San  Francisco  to  Ancon, 
Canal  Zone,  and  such  other  ports  as  the 
master  might  direct,  and  back  to  a  final 
port  of  discharge  in  San  Frhncisco,  for  a 
term  of  time  not  exceeding  six  calendar 
months.  The  vessel  returned  to  San  Fran- 
cisco [249]  on  September  23,  and  on  Sep- 
tember 24,  1913,  the  libellant  was  paid  in 
full  by  the  shipping  commissioner,  and  that 
date  noted  as  the  date  of  termination  of 
voyage  on  the  articles.  As  seems  to  have 
been  usual,  however,  the  libellant  remained 
on  board,  working,  and,  in  the  ordinary 
course,  probably  would  have  signed  new 
articles  for  the  next  voyage,  but  on  October 
1  was  notified  that  he  was  discharged.  On 
his  demanding  his  wages  for  his  services  in 
port  he  was  told  that  silverware  to  the 
amount  of  $32.90  was  missing,  that  he  was 
accountable  for  it,  and  this  sum  offset  bis 
claim.  There  is  no  doubt  that  this  offset, 
which  was  alleged  again  in  the  pleadings, 
was  set  up  in  good  faith,  but  as  both  the 
courts  below  have  found  that  it  was  not 
made  out,  we  assume  that  it  was  not 
proved. 

The  statute  under  which  the  penalty  was 
imposed  is  Rev.  Stat.  §  4529,  as  amended  by 
the  act  of  December  21,  1898,  chap.  28,  §  4, 
30  Stat,  at  L.  756,  Comp.  Stat.  1913,  § 
8320.  By  that  act  "the  master  or  owner 
of  any  vessel  making  coasting  voyages 
shall  pay  to  every  seaman  hie  wages  with- 
in two  days  after  the  termination  of  the 
Agreement  under  which  he  shipped,  or  at 
the  time  such  seaman  is  discharged,  which- 
•ever  first  happens;  and  in  the  case  of  ves- 
sels making  foreign  voyages,  or  from  a  port 
«n  the  Atlantic  to  a  port  on  the  Pacific,  or 
fjtce  versa,  within  twenty-four  hours  after 
the  cargo  has  been  discharged,  or  within 
four  days  after  the  seaman  has  been  dis- 
charged, whichever  first  happens.  .  •  • 
Every  master  or  owner  who  refuses  or  neg- 
lects to  make  payment  in  manner  herein- 
before mentioned  without  sufficient  cause 
«hall  pay  to  the  seaman  a  sum  equal  to  one 
«0  Ij.  ed« 


I  day's  pay  for  each  and  every  day  during 
which  payment  is  delayed  beyond  the  re- 
spective periods.''  We  assume,  not  only, 
as  we  have  said,  that  the  claim  of  offset 
was  not  established,  but  the  more  doubtful 
proposition  that  it  did  not  furnish  sufficient 
cause  for  the  delay.  We  assume,  therefore, 
that  the  petitioner  did  not  sufficiently  jus- 
tify putting  the  libellant  to  a  suit. 

[250]  But  it  is  far  less  clear  that  the 
district  court  was  justified  in  treating  the 
case  as  within  the  penalties  of  the  act.  The 
statute  deals  with  voyages.  The  voyage  for 
which  the  libellant  shipped  was  at  an  end, 
viz,,  from  San  Francisco  out  and  back  to 
that  port,  or  till  the  end  of  six  months, 
whichever  first  happened.  On  the  return  to* 
San  Francisco  within  the  time  the  libellant 
was  paid  all  that  was  due  to  him,  and  he 
himself  lays  his  employment  as  beginning 
in  San  Francisco  on  September  25,  after 
the  voyage  described  in  the  articles  was  at 
an  end.  No  new  articles  had  been  signed, 
and  it  would  seem  on  the  allegations  of  the 
libel,  coupled  with  the  admitted  facts,  that 
the  libellant's  legal  standing  was  under  an 
oral  contract  for  a  few  days  in  port  while 
hoping  to  be  reshipped.  It  seems  to  us  a 
very  strong  thing  to  say  that  any  fair 
construction  of  the  facts  brings  the  case 
within  the  act.  But,  as  the  two  courts  have 
agreed  upon  this  proposition  also,  and  as 
the  writ  would  not  have  been  granted  to 
reopen  the  inquiry  into  those  particular 
facts,  we  assume  that  upon  this  also  they 
were  right. 

It  is  a  very  different  thing,  however,  to 
say  that  the  delay  occasioned  by  the  appeal 
was  not  for  sufficient  cause.  Even  on  the 
assumption  that  the  petitioner  was  wrong, 
it  had  strong  and  reasonable  grouni  for 
believing  that  the  statute  ought  not  to  be 
lield  to  apply.  So  that  the  question  be- 
fore us  is  whether  we  are  to  construe  the 
act  of  Congress  as  imposing  this  penalty 
during  a  reasonable  attempt  to  secure  a 
revision  of  doubtful  questions  of  law  and 
fact,  although  its  language  is  "neglect 
.  •  •  without  sufficient  cause."  The  ques- 
tion answers  itself.  We  are  not  to  assume 
that  Congress  would  attempt  to  cut  off  the 
reasonable  assertion  of  supposed  rights  by 
devices  that  have  had  to  be  met  by  strin- 
gent measures  when  practised  by  the  statea 
Ex  parte  Young,  209  U.  S.  123,  52  L.  ed. 
714,  13  L.R.A.(N.S.)  932,  28  Sup.  Ct.  Rep. 
441,  14  Ann.  Cas.  764.  There  was  sufficient 
cause  for  the  neglect  to  pay  after  the  de- 
cree of  the  district  court,  since  the  payment 
of  [861]  the  ofiginal  wages  without  the 
penalty  that  was  reasonably  in  dispute 
would  neither  have  been  accepted  nor  al- 
lowed. 

Kot  only  so,  but  there  was  further  res- 


261,  252 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm,. 


eooable  cause  for  the  delay  by  appeal  in  the 
fact  that  victualing  money  was  included  in 
the  wages  by  which  the  penalty  was  meas- 
ured. Seeing  that  the  petitioner  was  held 
as  if  the  articles  still  were  in  force,  the 
question  arises  how  the  wages  could  be 
estimated  at  more  than  the  articles  fixed. 
The  so^alled  port  pay  which  added  a  dollar 
a  day  for  food  was  an  arrangement  al- 
together outside  the  articles,  and  the  de- 
mand for  it  and  the  allowance  of  it  not 
only  raised  a  new  question,  but  intensified 
the  doubt  as  to  how  it  could  be  said  that 
the  voyage  was  not  ended  and  that  the  pen- 
alty could  be  applied.  See  Palace  Shipping 
Ck).  V.  Caine  [1907]  A.  C.  386,  76  L.  J. 
K.  B.  N.  S.  1079,  23  Times  L.  R.  731,  9 
Ann.  Cas.  526.  We  shall  allow  the  decree 
of  the  district  court  to  stand,  as  we  have 
stated,  but  there  was  ample  justification  for 
the  appeal,  and  on  both  the  above  grounds 
sufficient  reason  for  the  delay.  We  need 
not  consider  whether,  if  there  had  been  no 
such  reason,  there  would  be  any  escape 
from  Atty.  Gen.  v.  Western  U.  Teleg.  Co. 
141  U.  S.  40,  35  L.  ed.  628,  11  Sup.  Ct.  Rep. 
889,  where,  under  a  similar  statute,  it 
seems  to  have  been  held  that  the  penalty 
stopped  with  the  decree  below. 

Decree  reversed.   • 

Decree  of  District  Court  affirmed. 


(26«]  TERMINAL  TAXICAB  COMPANY, 
Incorporated,  Appt., 

V. 

CHARLES  W.  KUTZ,  Oliver  P.  Newman, 
and  Louis  Brownlow,  Commissioners  of 
the  District  of  Columbia,  Constituting  as 
such  Commissioners  the  Public  Utilities 
Commission  of  the  District  of  Columbia, 
et  al. 

(See  S.  C.  Reporter's  ed.  252-257.) 

Public  service  corporations  —  taxicab 
company  —  governmental  control. 
1.  A  taxicab  company  is  a  common  car- 
rier within  the  meaning  of  the  act  of 
March  4,  1913  (37  Stat,  at  L.  938,  chap. 
150),  I  8,  and  hence  subject  to  the  juris- 
diction of  the  Public  Utilities  Commission 
of  the  District  of  Columbia  as  a  ''public 
utility^  in  respect  of  its  exercise  of  its  ex- 
clusive right  under  lease  from  the  Wash- 
ington Terminal  Company,  the  owner  of  the 
Washington  Union  Railway  station,  to  so- 
licit livery  and  taxicab  business  from  per- 
sons passing  to  or  from  trains,  and  of  its 
exclusive  right  under  contracts  with  cer- 

NoTB. — On  the  law  governing  automo- 
biles,  generally — see  note  to  Christy  v.  Elli- 
ott, 1  L.R.A.(N.S.)  215. 

On  the  regulation   of  jitney  buses — see 
note   to   Memphis   v.   State,   L.R.A.1916B, 
1156. 
•84 


tain  Washington  hotels  to  solicit  taxicab 
business  from  guests,  but  that  part  of  its 
business  which  consists  in  furnishing  auto- 
mobiles from  its  central  garage  on  individ- 
ual orders,  generally  by  telephone,  cannot 
be  regarded  as  a  public  utility,  and  the 
rates  charged  for  such  service  are  therefore 
not  open  to  inquiry  by  the  Commission. 

Constitutional  law  —  discrimination  -» 
governmental  control  of  taxicab  com- 
pany. 

2.  The  jurisdiction  of  the  Public  Utili- 
ties Commission  of  the  District  of  Colum- 
bia over  a  public  utility  under  the  act  of 
March  4,  1913  (37  Stat,  at  L.  938,  chap. 
150),  §  8,  cannot  be  defeated  because  such, 
jurisdiction  has  not  been  assumed  over  oth- 
er similar  concerns,  where  the  excuse  offered 
b^  the  Commission  is  that  it  did  not  con- 
sider that  the  omitted  concerns  did  busi- 
ness sulliciently  large  in  volume  to  come 
within  the  meaning  of  the  act,  and  there  is 
nothing  to  impeach  the  good  faith  of  the 
Commission,  or  to  give  the  concern  in- 
cluded just  cause  for  complaint. 

[For  otuer  cases,  see  Coustitatlonal  Law,  IV.. 
a,  5,  in  Digest  Sup.  Ct.  1U08.J 

[No.  348.] 

Argued  May  2  and  3,  101 G.    Decided  May 

22,  1916. 

APPEAL  from  the  Court  of  Appeals  of 
the  District  of  Columbia  to  review  a 
decree  which  affirmed  a  decree  of  the  Su- 
preme Court  of  the  District,  dismissing  the 
bill  in  a.  suit  to  restrain  the  Public  Utilities 
Commission  from  exercising  jurisdiction 
over  the  business  of  a  taxicab  company. 
Modified  so  as  to  restrain  the  exercise  of 
jurisdiction  over  the  rates  charged  by  the 
company  at  its  garage,  and  as  so  modified, 
affirmed. 

See  same  case  below,  43  App.  D.  C.  120. 

The  facts  are  stated  in  the  opinion. 

Mr.  G.  Thomas  Dunlop  argued  the 
cause  and  filed  a  brief  for  appellant: 

The  act  in  question  is  essentially  a  penal 
statute,  and  must  be  strictly  construed. 

Butts  V.  Merchants'  &  M.  Transp.  Co.  230' 
U.  S.  126,  57  L.  ed.  1422,  33  Sup.  Ct.  Rep. 
964;  United  States  v.  Keese,  92  U.  S.  214,  23 
L.  ed.  563;  Com.  v.  Goldman,  205  Mass.  400, 
91  N.  E.  392;  New  York  C.  &  BL  R.  R.  Co.  v. 
Sheeley,  67  N.  Y.  S.  R.  766,  27  N.  Y.  Supp. 
185;  Chicago,  R.  I.  &  P.  R.  Co.  v.  People,  217 
ni.  164,  75  N.  E.  368;  Fahnestock  v.  State, 
102  Ind.  156,  1  N.  £.  372;  Marion  County 
V.  Center  Twp.  105  Ind.  422,  2  N.  E.  368; 
Com.  V.  Macomber,  3  Mass.  254;  Com.  v. 
Barlow,  4  Mass.  439;  Meister  v.  People,  31 
Mich.  99,  1  Am.  Crim.  Rep.  91;  Howell  v. 
Stewart,  54  Mo.  400;  State  v.  Reid,  125  Mo. 
43,  28  S.  W.  172;  State  v.  Gritzner,  134 
Mo.  512,  36  S.  W.  39;  Rixke  v.  Western  U. 
Teleg.  Co.  96  Mo.  App.  406,  70  S.  W.  265; 
State  ex  rel.  McPherson  v.  St.  Louis  &  S.  F. 

141  V.  S» 


1015.  TERMINAL  TAXICAB  CO.  v.  KUTZ. 


32  X.  E.  044;  Atlantic  City  y.  Dehn,  69  N 
J.  L.  233,  54  Atl.  220;  Forbes  v.  Reinman, 
112  Ark.  417,  61  LJIJ^.(N.S.)  1164,  166  S. 
W.  563;  Orr  v.  Boockholdt,  10  Ala.  A  pp. 
331,  65  So.  430;  Tap  Line  Cases  (United 
States  V.  Louisiana  &  P.  R.  Co.)  234  U.  S. 
1,  24,  58  L.  ed.  1185,  1104,  34  Sup.  Ct.  Rep. 
741. 

The  livery  service  for  which  the  hotel 
contracts,  as  in  this  case,  is  strictly  a  pri- 
vate service,  and  not  such  as  the  public  has 


R.  Co.  105  Mo.  App.  207,  79  S.  W.  714; 
Pollard  v.  Missouri  &  K.  Teleph.  Co.  114  Mo. 
App.  533,  90  S.  W.  121;  McCormick  Har- 
vesting Mach.  Co.  V.  Mills,  64  Neb.  166,  80 
N.  W.  621 ;  State  v.  Dailey,  76  Neb.  770, 107 
N.  W.  1004;  Health  Dept.  v.  Owen,  94  App. 
Div.  425,  88  N.  Y.  Supp.  184,  affirming  42 
MUc.  221,  85  N.  Y.  Supp.  397;  First  Nat. 
Bank  v.  National  Live  Stock  Bank,  13  Okla. 
710,  76  Pac.  130. 

And  this  is  true  even  though  the  statute 

itself  provides  in  a  general  way  that  it  is  an  interest  in. 

to  be  liberally  construed.  Wyinan,  Pub.  Serv.  Corp.  §  499. 

O'Connor  v.  State,  —  Tex.  Civ.  App.  ^,  So  far  as  its  contract  with  the  Washing- 

71  S.  W.  400.  ton  Terminal  Company  is  concerned,  and  the 

It  would  seem  to  be  evident  from  the  service  which  it  thereby  supplies  at  the 
general  scope  and  purposes  of  the  act  in  Union  Station,  it  is  such  a  private  service, 
question  that  it  was  never  intended  by  under  the  complete  control  of  the  Wash- 
Congress  to  apply  to  such  concerns  as  taxi-  ington  Terminal  Company,  as  is  sanctioned 
cab  or  livery  companies  and  proprietors.  In  by  law  in  the  line  of  cases  of  which  Don- 
brief,  the  act  in  question  has  no  relevancy  ovan  v.  Pennsylvania  Co.  199  U.  S.  279,  50 
or  pertinency  to  such  concerns  as  the  taxi-  L.  ed.  192,  26  Sup.  Ct.  Rep.  91,  is  the  lead- 
cab  companies  here,  and  the  business  in  Ing  and  conclusive  authority, 
which  they  are  engaged.  If  the  act  is  to  be  construed  as  permitting 

Omaha  k  C.  B.  R.  Co.  y.  Interstate  Com-  the  Commission  to  single  out  the  appellant 

merce  Commission,  230  U.  S.  324,  57  Lb  ed.  company  for  regulation  and  control  from 

1501,  46  L.RJk.(N.S.)  385,  33  Sup.  Ct.  Rep.  among  others  ^f  the  same  class,  it  is  uncon- 

890;  New  York  C.  &  H.  R.  R.  Co.  v.  Sheeley,  stitutional  and  void. 

57  N.  Y.  S.  R.  766,  27  N.  Y.  Supp.  185;  Yick  Wo  v.  Hopkins,  118  U.  S.  371,  874, 

Brown  v.  New  York  C.  &  H.  R.  R.  Co.  75  30  L.  ed.  226,  227,  6  Sup.  a.  Rep.  1064; 

Hun,  355,  27  N.  Y.  Supp.  69;  Yellow  Taxi-  Williams  ▼.  Mississippi,  170  U.  S.  225,  42  L. 

cab  Co.  V.  Gaynor,  82  Misc.  94,  143  N.  Y.  ed.  1016,  18  Sup.  Ct.  Rep.  583;  Cotting  v. 

Supp.  279,  affirmed  in  150  App.  Div.  893,  Kansas  City  Stock  Yards  Co.   (Cotting  v. 

144  N.  Y.  Supp.  299.  Goddard)  183  U.  S.  79,  46  L.  ed.  92,  22  Sup. 

To  be  a  common  carrier  the  person  or  cor-  Ct.  Rep.  30. 

poration  must  exercise  the  business  of  car-       •»,     ^         ^  w    o      ^      a  au^  ««.,.^ 

*^.                     ...           1     «.    A        J   —    A  Mr.  Conrad  H.  Syme  argued  the  cause 

rymg  as  a  pubhc  employment,  and  must  for  aDoelle^- 

undertake  to  carry  goods   (or  passengers)  "J,^^!?  *  ^"«"<>r.»PPeiiees. 

for  all  persons  indiscriminately.  ^he  Tennmal  Taxicab  Company,  by  rea- 

The  Neaffie,  1  Abb.  (U.  S.)  465,  Fed.  Cas.  ^"^  ">{  ****  "**"IS  '"    -^^^"^  ^/ A    ^t 

No.  10,063;  Ivins  &  Mason,  Control  of  Pub-  "^' ^.,T^**^i"  the  jurisdiction  of  the  Pub- 

lie  Utilities,  p.  35;  6  Cyc.  364,  639;  Faucher  ^^  ^tihties  Commission,  and  "ubject  to  its 

V.  WiUon,  68  N.  H.  338,  39  L.ILA.  431,  38  ^^^  ^^^^  *^«  P"*>^c  utilities  law. 

AtL   1002;    Allen   v.   Sackrider,   37    N.   Y.  Hargrave's  Law  Tracts,  78;  Munn  v.  Uli- 

342;  Meisner  v.  Detroit,  B.  I.  &,  W.  Ferry  nois,  04  U.  S.  123,  24  L.  ed.  83;  Budd  v. 

Co.  154  Mich.  546,  19  L.RJk.(N.S.)  873,  129  New  York,  143  U.  S.  517,  36  L.  ed.  247,  4 

Am.  St.  Rep.  403,  118  N.  W.  14;  The  Wil-  Inters.  Com.  Rep.  46,  12  Sup.  Ct.  Rep.  468; 

denfels,  80  C.  C.  A.  58,  161  Fed.  864;  Central  German  Alliance  Ins.  Co.  v.  Lewis,  233  U.  S. 

of  Georgia  R.  Co.  v.  Lippman,  110  Ga.  665,  339,  58  L.  ed.  1011,  L.RJk.l915C,  1189,  84 

60  LJI.A.  673,  36  8.  E.  202,  8  Am.  Neg.  Rep.  gup.  Ct.  Rep.  612;   Shepard  v.  Milwaukee 

13;  Trout  v.  Watkins  Livery  &  Undertak-  Gaslight  Co.  6  Wis.  639,  70  Am.  Dec  479; 

ing  Co.  148  Mo.  App.  621,  130  S.  W.  136;  g^^y^^^  ^  Consolidated  Gas  Co.  130  U.  S.  396, 

Varble  T  Biglcy,  14  Bush,  698,  29  Am.  Rep.  3^  ^^  ^  ^^^  ^  g       ^  ^     553.  g^^u  ^^ 

433;  Fish  v.  Chapman,  3  Ga    363,  46  Am.  ^^^.^  Li^    ^^^  ^  p  ^  ^^  ^ 

5^-  n    ini'"' B;i^d'^  mi«    8  C^  t  P  «26,  58  L.R^.  284:89  Am.  St.  Rep.  841,  63 

103,  D.  note;   Brmd  v.  Dale,  8  Uir.  a   r.  *                         '                    r^     t^M       ^ 

207  2  Moody  &  R.  80;  Ross  v.  HiU,  2  C.  B.  N.  E.  1082;  Cross  y.  Andrews,  Cro.Eliz.pt. 

877,  3  Dowl.  &  L.  788,  15  L.  J.  C.  P.  N.  S.  2,  P-  «22;  Albion  Lumber  Co.  ▼.  De  Nobra, 

182,  10  Jur.  435;  Moore,  Carr.  pp.  20,  60,  19  C.  C.  A.  347,  44  U.  S.  App.  847,  72  Fed. 

§1  1,  21;  Hutchinson,  Carr.  3d  ed.  g  67,  p.  739;  Lloyd  v.  Haugh  A  K.  Storage  &,  Trans- 

63;  Wyman,  Pub.  Serv.  Corp.  §  107;  Bur-  fer  Co.  223  Pa.  148,  21  L.ILA.(N.S.)  188,  72 

lington  V.  Unterkircher,  99  Iowa,  401,  68  AtL  616;  Sears  ▼.  Eastern  R.  Co.  14  Allen, 

N.  W.  705;  Copeland  ▼.  Draper,  167  Mass.  433,  92  Am.  Dec.  780;  Schloss  ▼.  Wood,  11 

668,  19  UEUL  283,  34  Am.  St  Rep.  314,  Colo.  2fr7,  17  Pac  910. 

•0  li.  ed.  ••* 


253-255 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tsbm, 


Mr.  Justice  Holmes  delivered  the  opin- 
ion of  the  court: 

This  is  a  suit  to  restrain  the  Public  Utili- 
ties Commission  of  the  District  of  Columbia 
from  exercising  Jurisdiction  over  the  plain- 
tiff. The  Commission  was  created  and  its 
powers  established  bj  a  section  (|  8)  of 
an  appropriation  act,  divided  into  num- 
bered paragraphs.  Act  of  March  4,  1913, 
chap.  150,  i  8,  37  SUt.  at  L.  938,  974.  By 
f  2  of  the  section  "every  public  utility  is 
hereby  required  to  obey  the  lawful  orders 
of  the  Commission,"  and  by  f  1  "public 
utility"  embraces  every  common  carrier, 
which  phrase  in  turn  is  declared  to  include 
''express  companies  and  every  corporation 
.  .  .  controlling  or  managing  any  agency 
or  agencies  for  public  use  for  the  convey- 
ance of  persons  or  property  within  the 
District  of  Columbia  for  hire."  Steam 
railroads,  some  other  companies,  and  the 
Washington  Terminal  Company,  are  declared 
not  to  be  within  the  words.  The  main 
question  is  whether  the  plaintiff  is  a  com- 
mon carrier  under  the  definition  in  the  act. 
The  bill  was  dismissed  by  the  supreme 
court,  and  the  decree  was  affirmed  by  the 
court  of  appealsi    43  App.  D.  C.  120. 

The  facts  are  agreed.  The  plaintiff  is  a 
Virginia  corporation,  authorized  by  its 
charter,  with  copious  verbiage,  to  build, 
buy,  sell,  let,  and  operate  automobiles,  taxi- 
cabs,  and  other  vehicles,  and  to  carry  pas- 
sengers and  goods  by  such  vehicles;  but  not 
to  exercise  any  of  the  powers  of  a  public 
service  corporation.  It  does  business  in  the 
District,  [264]  and  the  important  thing  is 
what  it  does,  not  what  its  charter  says. 
The  first  item,  amounting  to  about  thirty- 
five  hundredths  of  the  whole,  is  done  under 
a  lease  for  years  from  the  Washington  Ter- 
minal Company,  the  owner  of  the  Union 
Railroad  Station  in  Washington,  which  we 
have  mentioned  as  excluded  from  the  defi- 
nition of  common  carriers.  By  this  lease 
the  plaintiff  has  the  exclusive  right  to  soli- 
cit livery  and  taxicab  business  from  all 
persons  passing  to  or  from  trains  in  the 
Union  Station,  and  agrees  in  its  turn  to 
provide  a  service  sufficient  in  the  judgment 
of  the  Terminal  Company  to  accommodate 
persons  using  the  station,  and  is  to  pay 
over  a  certain  percentage  of  the  gross 
receipts.  It  may  be  assumed  that  a  person 
taking  a  taxicab  at  the  station  would  con- 
trol the  whole  vehicle  both  as  to  contents, 
direction,  and  time  of  use,  although  not,  so 
far  as  indicated,  in  such  a  sense  as  to 
make  the  driver  of  the  machine  his  servant, 
according  to  familiar  distinctions.  The 
last  facts,  however,  appear  to  be  immaterial 
and  in  no  degree  to  cast  doubt  upon  the 
plaintiff's  taxicaSs,  when  employed  as  above 
stated,  being  a  public  utility  by  ancient 
•86 


usage  and  understanding  (Munn  v.  Illinois, 
94  U.  S.  113,  125,  24  L.  ed.  77,  84),  as  weU 
as  common  carriers  by  the  manifest  mean- 
ing of  the  act.  The  plaintiff  is  "an  agency 
for  public  use  for  the  conveyance  of  per- 
sons," etc.;  and  none  ths  less  that  it  only 
conveys  one  group  of  customers  in  one  ve- 
hicle. The  exception  of  the  Terminal  Com- 
pany from  the  definition  of  common  carriers 
does  not  matter.  The  plaintiff  is  not  its 
servant  and  does  not  do  business  in  its 
name  or  on  its  behalf.  It  simply  hires 
special  privileges  and  a  part  of  the  sta- 
tion for  business  of  its  own. 

The  next  item  of  the  plaintiff's  business, 
constituting  about  a  quarter,  is  under  con- 
tracts with  hotels  by  which  it  agrees  to  fur- 
nish enough  taxicabs  and  automobiles  with- 
in certain  hours  reasonably  to  meet  the 
needs  of  the  hotel,  receiving  the  exclusive 
right  to  solicit  in  and  about  [256]  the 
hotel,  but  limiting  its  service  to  guests  of 
the  hotel.  We  do  not  perceive  that  this 
limitation  removes  the  public  character  of 
the  service,  or  takes  it  out  of  the  definition 
in  the  act.  No  carrier  serves  all  the  public 
His  customers  are  limited  by  place,  require- 
ments, ability  to  pay,  and  other  facts.  But 
the  public  generally  is  free  to  go  to  hotels  if 
it  can  afford  to,  as  it  is  free  to  travel  by 
rail,  and  through  the  hotel  door  to  call  on 
the  plaintiff  for  a  taxicab.  We  should  hes- 
itate to  believe  that  either  its  contract  or 
its  public  duty  allowed  it  arbitrarily  to  re- 
fuse to  carry  a  guest  upon  demand.  We 
certainly  may  assume  that  in  its  own  in- 
terest it  does  not  attempt  to  do  so.  The 
service  affects  so  considerable  a  fraction  of 
the  public  that  it  is  public  in  the  same  sense 
in  which  any  other  may  be  called  so.  Ger- 
man Alliance  Ins.  Co.  v.  Lewis,  233  U.  S. 
389,  58  L.  ed.  1011,  L.RJL.1915C,  1189,  34 
Sup.  Ct.  Rep.  612.  The  public  does  not 
mean  everybody  all  the  time.  See  Peck  v. 
Tribune  Co.  214  U.  S.  185,  190,  53  L.  ed. 
960,  962,  29  Sup.  Ct.  Rep.  554,  16  Ann.  Cas. 
1076. 

The  rest  of  the  plaintiff's  business, 
amounting  to  four  tenths,  consists  mainly  in 
furnishing  automobiles  from  its  central 
garage  on  orders,  generally  by  telephone. 
It  asserts  the  right  to  refuse  the  service,  and 
no  doubt  would  do  so  if  the  pay  was  uncer- 
tain, but  it  advertises  extensively,  and,  we 
must  assume,  generally  accepts  any  seeming- 
ly solvent  customer.  Still,  the  bargains  are 
individual,  and  however  much  ^ey  may 
tend  towards  uniformity  in  price,  probably 
have  not  quite  the  mechanical  fixity  of 
charges  that  attends  the  use  of  taxicabs 
from  the  station  and  hotels.  There  is  no 
contract  with  a  third  person  to  serve  the 
public  generally.  The  question  whether,  as 
to  this  part  of  its  business,  it  is  an  ageocy 

141  V.  8. 


1915. 


AMERICAN  WELL  WORKS  CO.  ▼.  LAYNE  &  BOWLER  CO. 


25^257 


for  public  use  within  the  meaning  of  the 
«tatute,  is  more  difficult.  Whether  it  is  or 
not,  the  jurisdiction  of  the  Commission  is 
established  by  what  we  have  said,  and  it 
would  not  be  necessary  to  decide  the  ques- 
tion if  the  bill,  in  addition  to  an  injunc- 
tion against  taking  jurisdiction,  did  not 
pray  that  order  No.  44  of  the  Commission  be 
declared  void.  That  order,  [256]  after  de- 
claring that  the  plaintUf  was  engaged  in  the 
business  of  a  common  carrier  within  the 
meaning  of  the  act,  and  so  was  within  the 
jurisdiction  of  the  Commission,  required  the 
plaintiff  to  furnish  the  information  called 
for  in  a  circular  letter  of  April  12,  1013. 
What  this  information  was  does  not  appear 
with  technical  precision,  but  we  assume 
that  it  was  in  substance  similar  to  a  later 
requirement  of  a  schedule  showing  all  rates 
and  charges  in  force  for  any  service  per- 
formed by  the  plaintiff  within  the  District, 
or  any  service  in  connection  therewith.  If 
we  are  right,  this  demand  was  too  broad 
unless  the  business  from  the  garage  also 
was  within  the  act.  There  is  no  such  con- 
nection between  the  charges  for  this  last  and 
the  others  as  there  was  between  the  facts 
required  and  the  business  controlled  in  In- 
terstate Commerce  Commission  v.  Goodrich 
Transit  Co.  224  U.  S.  194,  211,  56  L.  ed. 
729,  736,  32  Sup.  Ct.  Rep.  436.  Although 
I  have  not  been  able  to  free  my  mind  from 
doubt,  the  court  is  of  opinion  that  this 
part  of  the  business  is  not  to  be  regarded 
as  a  public  utility.  It  is  true  that  all  busi- 
ness, and,  for  the  matter  of  that,  every  life 
in  all  its  details,  has  a  public  aspect,  some 
bearing  upon  the  welfare  of  the  community 
in  which  it  is  passed.  But,  however  it  may 
have  been  in  earlier  days  as  to  the  common 
callings,  it  is  assumed  in  our  time  that  an 
invitation  to  the  public  to  buy  docs  not 
necessarily  entail  an  obligation  to  sell.  It 
is  assumed  that  an  ordinary  shopkeeper  may 
refuse  his  wares  arbitrarily  to  a  customer 
whom  he  dislikes,  and  although  that  con- 
sideration is  not  conclusive  (233  U.  S.  407), 
it  is  assumed  that  such  a  calling  is  not  pub- 
lic as  the  word  is  used.  In  the  absence  of 
clear  language  to  the  contrary  it  would  be 
assumed  that  an  ordinary  livery  stable 
stood  on  the  same  footing  as  a  common 
shop,  and  there  seems  to  be  no  difference  be- 
tween the  plaintiff's  service  from  its  gar- 
age and  that  of  a  livery  stable.  It  follows 
that  the  plaintiff  is  not  bound  to  give  in- 
formation as  to  its  garage  rates. 

[867]  Complaint  is  made  that  jurisdic- 
tion has  not  been  assumed  over  some  other 
concerns  that  stand  on  the  same  footing  as 
the  plaintiff.  But  there  can  be  no  pretense 
that  the  act  is  a  disguised  attempt  to  cre- 
ate preferences,  or  that  the  principle  of  Yick 
Wo  y.  Hopkins,  118  U.  S.  356,  30  L.  ed.  220, 
•0  Ia.  ed. 


6  Sup.  Ct.  Rep.  1064,  applies.  The  ground  al- 
leged by  the  Commission  is  that  it  did  not 
consider  that  the  omitted  concerns  did  busi- 
ness sufficiently  large  in  volume  to  come 
within  the  meaning  of  the  act.  There  is 
nothing  to  impeach  the  good  faith  of  the 
Commission,  or  to  give  the  plaintiff  just 
cause  for  complaint.  The  decree,  so  far  as 
it  asserts  the  jurisdiction  of  the  Commis- 
sion, is  affirmed,  but  it  must  be  modified  so 
to  restrain  an  inquiry  into  the  rates  charged 
by  the  plaintiff  at  its  garage,  or  the  exer- 
cise of  jurisdiction  over  the  same. 
Decree  modified  as  above  set  forth. 


AAIERICAN   WELL   WORKS   COMPANY, 

Plff.  in  Err., 

V. 

LAYNE  &  BOWLER  COMPANY  and  Mah- 

lon  E.  Layne. 

(See  S.  C.  Reporter's  ed.  257-260.) 

Federal     courts  —  jurisdiction  —  salt 
arising  under  patents. 

A  suit  by  the  owner,  manufacturer, 
and  seller  of  a  pump,  who  alleges  that  he 
has,  or  has  applied  for,  a  patent  therefor, 
to  recover  the  damages  caused  to  his  busi- 
ness by  defendant's  libel  or  slander  of  his 
title  by  statements  to  various  persons  that 
plaintiff  was  infringing  defendant's  patent, 
and  that  defendant  would  sue  both  seller 
and  buyer  if  the  plaintiff's  pump  was  used, 
arises  under  the  law  of  the  state  rather 
than  under  the  patent  laws  of  the  United 
States,  and  is  therefore  not  within  the  ex- 
clusive jurisdiction  of  the  Federal  courts. 
[For  other  cases,  see  Courts,  053-069,  in  Di- 
gest bup.  Ct.   11)08.  J 

[No.  376.1 

Argued  and  submitted  May  5,  1916.     De- 
cided May  22,  1916. 

IN  ERROR  to  the  District  Court  of  the 
United  States  for  the  Eastern  District 
of  Arkansas  to  review  an  order  dismissing 
a  suit  for  want  of  jurisdiction  on  the 
ground  that  the  state  court  from  which  the 
case  had  been  removed  vras  without  juris- 
diction because  the  cause  of  action  arose 
under  the  patent  lavrs.  Reversed. 
The  facts  are  stated  in  the  opinion. 

Mr.  David  A.  Gates  submitted  the  cause 
for  plaintiff  in  error: 

The  only  question  to  be  decided  in  this 
cause  is  whether  or  not  plaintiff's  suit  is 
one  arising  under  the  patent  laws  of  the 
United  States.  If  it  is,  we  concede  that  the 
state  circuit  court  had  no  original  jurisdic- 
tion, and  that  the  ruling  of  the  district 
court  was  right.  If  it  is  not,  the  state  cir- 
cuit court  had  jurisdiction,  and  tlie  ruling 


SS8,-2ro  SUPREME  COURT  OF  THE  IWITED  STATES.  On.  Ton 

of  the  district  court  waa  error,  caJIins  lor  U.  S.  282,  40  L.  ed.  BIO,  22  Sup.  Ct.  Rep. 

merial.  681 ;  Rupp  t  W.  Co.  t.  Elliott,  «fi  C.  C.  A. 

Cftrleton  t.  Bird,  S4  Me.  182,  47  Atl.  154;  Mi,  131  Fed   732;   Atberton  Mach.   Oo.  t. 

Excelsior  Wooden  Pipe  Co.  v.  PftciQc  Bridge  Atwood-Uorriaoo  Co.  43  C.  C.  A.  72,  10* 

Co.  185  U.  S.  286-205,  4S  L.  ed.  B13-917,  22  Fed.  S48. 
Sup.    Ct.    Rep.    681;    Flint    v.    Hutchinson 

Smoke  Burner  Co.  38  Fed.  646;  He»ly  v.       Mr.  JusUce  Holmea  delWered  the  opin- 

Se*  GuK  Specialty  Co.  Z37  U.  8.  479,  69  L.  ion  of  the  court- 
ed. 1056,  36  Sup.  Ct.  Rep.  658;  Celluloid       ji,i,  j^  .  „it  b^g^  in  a  rtata  court,  re- 

Mfg.  Co.  y.  Goodyear  Dental  Vulcanite  Co.  ^oved  to  the  United  States  court,  and  then, 

13  Blatchf.  375,  Fed.  Cai.  No.  2,643;  Pratt  ^n  motion  to  remand  by  the  plaintiff,  dii- 

T.  Paris  Gaslight  4  Coke  Co.  108  U.  S.  265,  n,i„ed  by  the  latter  court,  on  the  ground 

42  L.  *d.  468.  18  Sup.  «.  Rep.  62;  The  Fair  that  the  cauiie  of  action  arose  under  the  pat- 

T.  Kohler  Die  &  Specialty  Co.  228  U.  S.  22,  e^t  la»B  of  the  United   States,  that  the 

«7  L.  ed.  7IG,  33  Sup.  a.  Rep.  410;  Wade  v.  ^^tU  court  had  no  iurisdiction,  and  that 

Uwder,  165   U.   S.  626,  41  L.  ed.  851.  17  therefore  the  one  to  which  it  wm  removed 

Sup.  Ct.  Rep.  426.  Ind  none.    There  is  a  pnjper  eertiflcate  and 

Th«   case   is   not   one   arising  under   the  the   caM   comes   here   direct   from   the   dU- 

patent  laws  of  the  United  States.  trict  court. 

Flint  V.  Hutchinson  Smoke  Burner  Co.  38        Of  course  the  question  depends  upon  the 

Fed.  546;  Carl«ton  v.  Bird,  94  Me.  182,  47  plaintiff's  declaration.     The  Fair  v.  KoLler 

AtL  164 ;  Pratt  t.  Paris  Gaslight  t  Coke  Co.  uie  &  Specialty  Co.  228  U.  S.  22.  26,  57  U 

168  U.  S.  255,  42  L.  ed.  458,  18  Sup.  Ct.  Rep.  ed.   716,   717,  33  Snp.  Ct.  Rep.   410.     That 

62;    Excelsior   Wooden   Pipe   Co.   v.   Paciflc  may  be  summed  up  in  a  few  wonU.     The 

Bridge  Co.  186  U.  S.  286-295,  46  L.  ed.  D13-  piaintitT  alleges  that  it  owns,  m»nufs«tur«i, 

917,  22  Sup.  Ct.  Rep.  681;  Wade  v.  Lawder,  and  sells  a  certain  pump,  has  or  has  applied 

166  V.  S.  625,  41  L.  ed.  861,  17  Sup.  Ct.  Rep.  for  a  patent  for  it,  and  that  the  pump  i» 

425;  The  Fair  v.  Kohler  Die  ft  Specialty  Co.  known  as  the  best  in  the  market.     It  then 

228  U.  S.  22,  67  L.  ed.  716.  33  Sup.  Ct.  Rep.  allege*  that  the  defendants  have  falsely  and 

410;   Healy  t.   Sea  Guli   Specialty  Co.  237  maliciously  libeled  and  slandered  the  pUin- 

U.  S.  47B,  6B  L.  ed.  1068,  35  Sup.  Ct.  Rep.  tir*  title  to  the  pump  by  stating  that  the 

658;   Briggs  v,  United  Shoe  Machinery  Co.  pump  and  certain  parts  thereof  are  infringe- 

2SB  U.  S.  48,  ants,  138,  36  Sup.  Ct.  Rep.  6.  menU  upon  the  delendant'a  pump  and  oer- 

Mr.  P»iil  Synuestvedt  argued  the  cause,  '*'"'  P"^  thereof,  and  that  without  prob- 

Uid,  with  Messrs.  J.  M.  Moore  and  Coke  K.  *'>'•  <»i«  ^^'y  "'^^  brought  suits  against 

Burna,  filed  a  brief  for  defendanta  in  error:  *»"*  ^"*-}''^}"i^"'  "''"?  ""f  &^^; 

The  cause  of  action  ..t  up  in  the  com-  P""P.  "°d  that  they  .re  threatening  smt* 

pUint  ari«»  under  the  patent  law.  of  the  T'"!  ,    a  '*"  TJ  "l  '^^^^ 

TT    1  J  c.  .  the    defendants     libel    or    slaDder    is    re 

United  States.  ^.     ^        ,  ^  peated  in  slightly  varying  torn.,  but  it  all 

«?°Tf  ."■  T'^.J.'Pfrf'i*^'  ^^  ^-  ^-  «■""  to  sUtem^U  te  vfriou.  people  that 

l^'J,,^^^\^J  ^l^t^^  '■  ^'^■'-  ""  P'»^*'«'  ™  infringing  the  def«danU- 
21  W.U.  206   22  L.  ed^677i  Moyes  v    Stir-         j^^   ^„j  y^t  thedefen^t  [268 J  would 

^n  n   o   l'^-  f?V  P?^'^'  »■  Mefrj^l.  lo  ^.  both  seller  and  buyer  if  the  pUintir. 

"■*^o-^-.^\f'.^H"^:?"/f»^/^,^°^„"  pump    was    used.     Actual    damag^    to    the 

year  Dental  Vulc.mte  Co.  13  Bhjtchf.  382.  J,^- P,^  ,^  ,^^  ^^^^^  i,  ^,^^  tl.,  ^. 

F«l.   C...   No.   2,543;    Fbnt   V    Hutehinson  ^  ,  ^  .^^^  ^^^^^^^^  t^ 

Smoke  Burner  Co.  38  Fed,  540;  American  ,^  \  u  j 

Solid  Leather  Button  Co.  v.  Empire  SUte  ^^''T"'  .'"T.l  ■.".^"  w      ,      . 
Nail  Co.  47  Fed.  741;  Germ  Proof  Filter  Co.        "  »  "«1*°'  ">"*  '•"*  "'''"  '"^  '"'"•if 

T.  Pasteur  Ch.mherUnd  Filter  Co.  81  Hun,  ''  b»»«'  "PO"  induct;  or.  more  ^wciflcally, 

49.  30  N.  Y.  Supp.  584;  Pratt  v.  Paris  Ga«-  l»upi»«e.  tending  to  persuade  the  public  ti> 

light  &  Coke  Co.  168  U.  S.  2SB,  42  L.  ed.  480.  withdraw  its  custom  from  the  plaintiff,  and 

18  Sup,  Ct.  Rep.  62;  Brown  v.  Shannon,  20  having  that  effect  to  its  damage.    Such  cn- 

How.  56,  16  L.  ed.  S27;  New  Marshall  En-  duct,  having  such  effect,  is  equally  actioa- 

gine  Co.  v.  Marshall  Engine  Co.  223  U,  S.  ahle  whether  it  produces  the  result  by  per- 

473,  66  L.  ed.  613,  32  Sup.  Ct.  Rep.  238.  suasion,  by  threats,  or  by  falsehood  {Moian 

An  action  which  raise*  a  question  of  in-  r.  Dunphy,  177  Bfass.  486,  487,  52  L.R.A. 

fringement  is  a  ease  arising  under  the  Fed-  115,  83  Am.  St.  Rep.  289,  69  N.  E,  125),  and 

eral  laws.  it  is  enough  to  allege  and  prove  the  conduct 

Linlefield  t.  Perry,  21  Wall.  205,  22  L.  and  effect,  leaving  the  defendant  to  justify 

•d.  677;  White  v,  Rankin,  144  U.  S.  628.  36  if  he  can.     If  the  conduct  complained  of  ift 

L,  ed.  669,  12  Sup.  Ct.  Rep.  768;  Excelsior  persuasion,  it  may  be  justified  by  the  fset 

Wooden  Pipe  Co.  v.  Pacific  Bridge  Co.  185  that  the  defendant  is  a  competitor,  or  bj- 
#««  *41  U.  S. 


1915. 


LOUISVILLE  &  N.  R.  CO.  v.  STEWART. 


259-261 


^ood  faith  and  reasonable  grounds.  If  it 
is  a  statement  of  fact,  it  may  be  justifiedi 
absolutely  or  with  qualifications,  by  proof 
that  the  statement  is  true.  But  all  such 
justifications  are  defenses,  and  raise  issues 
that  are  no  part  of  the  plaintiff's  case.  In 
the  present  instance  it  is  part  of  the  plain- 
tiff's case  that  it  had  a  business  to  be  dam- 
aged; whether  built  up  by  patents  or  with- 
out them  does  not  matter.  It  is  no  part  of 
it  to  prove  anything  concerning  the  defend- 
ants' patent,  or  that  the  plaintiff  did  not 
infringe  the  same— still  less  to  prove  any- 
thing concerning  any  patent  of  its  own. 
The  material  statement  complained  of  is 
that  the  plaintiff  infringes, — which  may  be 
true  notwithstanding  the  plaintiff's  patent. 
'That  is  merely  a  piece  of  evidence.  Furtner- 
jnore,  the  damage  alleged  presumably  is 
rather  the  consequence  of  the  threat  to  sue 
than  of  the  statement  that  the  plaintiff's 
pump  infringed  the  defendants'  rights. 

A  suit  for  damages  to  business  caused 
"by  a  threat  to  sue  under  the  patent  law  is 
not  itself  a  suit  under  the  patent  law.  And 
the  same  is  true  when  the  damage  is  caused 
by  a  statement  of  fact, — that  the  defendant 
has  a  [260]  patent  which  is  infringed.  What 
makes  the  defendants'  act  a  wrong  is  its 
manifest  tendency  to  injure  the  plaintiff's 
liusiness;  and  the  wrong  is  the  same  what- 
ever the  means  by  which  it  is  accomplished. 
But  whether  it  is  a  wrong  or  not  depends 
upon  the  law  of  the  state  where  the  act  is 
•done,  not  upon  the  patent  law,  and  there- 
fore the  suit  arises  under  the  law  of  the 
state.  A  suit  arises  under  the  law  that  cre- 
ates the  cause  of  action.  The  fact  that  the 
justification  may  involve  the  validity  and 
infringement  of  a  patent  is  no  more  materi- 
al to  the  question  under  what  law  the  suit 
is  brought  than  it  would  be  in  an  action  of 
contract.  If  the  state  adopted  for  civil  pro- 
ceedings the  saying  of  the  old  criminal  law : 
the  greater  the  truth,  the  greater  the  libel, 
the  validity  of  the  patent  would  not  come  in 
<luestion  at  all.  In  Massachusetts  the  truth 
would  not  be  a  defense  if  the  statement  was 
made  from  disinterested  malevolence.  Rev. 
Laws,  chap.  173,  §  91.  The  state  is  master 
of  the  whole  matter,  and  if  it  saw  fit  to  do 
away  with  actions  of  this  type  altogether, 
no  one,  we  imagine,  would  suppose  that  tliey 
still  could  be  maintained  under  the  patent 
laws  of  the  United  States. 

Judgment  reversed. 

Mr.  Justice  McKenna  dissents,  being  of 
opinion  that  the  case  involves  a  direct  and 
substantial .  controversy    under   the   patent 
laws. 
40  Ij.  ed. 


[261]      LOUISVILLE      &,     NASHVILLE 
RAILROAD  COMPANY,  Plff.  in  Err., 

V. 

JEANETTE  STEWART,  as  Administra- 
trix of  the  Estate  of  William  H.  Stewart, 
Deceased.       (No.  485.) 


JEANETTE  STEWART,  as  Administra- 
trix  of  the  Estate  of  William  H.  Stewart, 
Deceased,  Plff.  in  Err., 

V. 

LOUISVILLE  k  NASHVILLE  RAILROAD 
COMPANY.     (No.  904.) 

(See  S.  C.  Reporter's  ed.  261-264.) 

Error  to  state  court  —  second  appeal  — 
relnstatincr  verdict  at  first  trial. 

1.  A  verdict  found  on  the  first  trial  of 
an  action  for  death  under  the  Federal  em- 
ployers' liability  act  of  AprU  22,  1908  (35 
Stat,  at  L.  65,  chap.  149,  Comp.  Stat.  1913, 
§  8657),  upon  an  instruction  that  the  jury 
should  find,  if  anything,  ''such  a  sum  as 
will  fairly  compensate  his  estate  for  his 
death,"  cannot  be  reinstated  b^  the  Federal 
Supreme  Court  on  a  cross  writ  of  error  to 
a  state  court  of  last  resort  which,  having 
set  aside  a  verdict  for  plaintiff,  rendered  on 
the  first  trial,  and  the  judgment  based  upon 
it,  affirmed,  on  a  second  appeal,  a  judg* 
ment  for  plaintiff  in  a  lesser  amount,  ren- 
dered on  the  second  trial. 

[For  other  cases,  see  Apoeal  and  Error,  YIII. 
m,  1,  in  Digest  Sup.  Ct.  1908.] 

Jury  ^  Infringement  of  right  ^  non- 

nnanlmons    verdict  —  action     under 

Federal  statute. 

2.  The  requirement  of  U.  S.  Const.  7th 

Note. — On  error  to  state  court  in  cases 
arising  under  the  Federal  employers'  liabil- 
ity act — see  note  to  Great  Northern  R.  Co. 
T.  Knapp,  ante,  745. 

On  number  and  agreement  of  jurors 
necessary  to  constitute  a  valid  verdict — see 
notes  to  State  v.  Bates,  43  L.RA>.  33,  and 
Silsby  V.  Foote,  14  L.  ed.  U.  S.  394. 

On  the  constitutionality,  application,  and 
effect  of  the  Federal  employers'  liability 
act — see  notes  to  Lamphere  v.  Oregon  R.  & 
Nay.  Co.  47  L.RA..(N.S.)  38,  and  Seaboard 
Air  Line  R.  O}.  v.  Horton,  L.RJL.1915C, 
47. 

Cenerally,  as  to  a  servant's  assumption 
of  risk — see  notes  to  Pidcock  v.  Union  F.  R. 
Co.  1  L.R.A.  131;  Foley  v.  Pettee  Mach. 
Works,  4  L.R.A.  61;  Howard  v.  Delaware 
&  H.  Canal  Co.  6  L.R.A.  75;  Hunter  v.  New 
York,  0.  &  W.  R.  Co.  6  L.R.A.  246 ;  Georgia 
P.  R.  Co.  V.  Dooly,  12  L.R.A.  342;  Kehler 
Y.  Schwenk,  13  L.RA.  374,  and  Southern  P 
Co.  V.  Seley,  38  L.  ed.  U.  S.  391. 

On  volenti  non  fit  injuria  as  defense  to 
action  by  injured  servants — see  note  to 
O'Maley  v.  South  Boston  Gaslight  O}.  47 
L.R.A.  161. 

As  to  whether  servant  may  assume  the 
rick  of  dangers  created  by  the  master's 
negligence — see  note  to  Scheurer  t.  Banner 
Rubber  Co.  28  LJIA..(N.S.)    1216. 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebh^ 


Amend.,  that  trials  by  jury  be  according  to 
the  course  of  the  common  law,  i,  e.,  by  a 
unanimous  verdict,  does  not  control  th? 
state  courts,  even  when  enforcing  rights 
under  a  Federal  statute  like  the  employers' 
liability  act  of  April  22,  1008  (35  Stat,  at 
L.  65,  chap.  140,  Comp.  Stat.  1013,  §  8657 ) , 
and  such  courts  may  therefore  give  effect, 
in  actions  under  that  statute,  to  a  local 
practice  permitting  a  less  than  unanimous 
verdict. 

[For  otber  cases,  see  Jury,  I.  d,  2,  in  Digest 
6up.  Ct.  1008.] 

Appeal  —  supersedeas  —  damages    on 
affirmance  —  employers*  liability. 

3.  Ten  per  cent  damages  may  be  added 
by  a  state  court  of  last  resort  in  affirming 
a  judgment  for  plaintiff  in  an  action  un- 
der the  Federal  employers'  liability  act  of 
April  22,  1008  (35  Stat,  at  L.  65,  chap. 
140,  0>mp.  Stat.  1013,  §  8657),  where  the 
defendant  obtained  a  supersedeas,  and  the 
local  law  makes  10  per  cent  the  cost  of  it 
to  all  persons  if  the  judgment  is  affirmed. 
[For  other  cases,  see  Appeal  and  Brror,  IX. 

b,  In  Digest  Sup.  Ct.  1908.] 

Appeal  —  Interest  on  judgment  —  em- 
ployers' liability. 

4.  Interest  may  be  allowed  by  a  state 
upon  a  judgment  for  plaintiff  under  the 
Federal  employers'  liability  act  of  April  22, 
1008  (35  SUt.  at  L.  65,  chap.  140,  Comp. 
Stat.  1013,  §  8657),  from  the  time  when  it 
was  rendered  if  it  provides  appellate  pro- 
ceedings and  the  judgment  is  affirmed,  as, 
but  for  such  proceedings,  interest  would 
run  as  of  course  until  the  judgment  was 
paid. 

[For  other  cases,  see  Appeal  and  Brror,  IX. 
g.  in  Digest  Sup.  Ct.  1008.] 

Error  to  state  court  —  following  deci- 
sion below  —  question  for  jury. 

5.  The  refusal  of  a  state  trial  court, 

sustained  by  the  state  court  of  last  resort, 

to  take  from  the  jury  an  action  under  the 

Federal   employers'   liability   act   of  April 

22,   1008    (35   Stat,   at  L.   65,   chap.   140, 

Comp.  Stat.  1013,  §  8657),  by  directing  a 

verdict  for  defendiant,  will  not  be  disturbed 

by  the  Federal  Supreme  Court  on  writ  of 

error  unless  clearly  erroneous. 

[For  other  cases,  see  Appeal  and  Brror,  VIII. 
m,  6,  in  Digest  Sap.  Ct.  1008.] 

Trial  —  instructions  —  assumed  risk  — 
employers'  liability. 

6.  An  instruction  that  a  freight  engi- 
neer assumed  the  risk,  under  the  employers' 
liability  act  of  April  22,  1008  (35  SUt.  at 
It.  65,  chap.  140,  Comp.  SUt.  1013,  §  8657), 
of  shock  from  the  sudden  application  of 
the  air  brakes  by  the  rear  brakeman  while 
the  train  was  backing  on  a  siding,  if  the 
application  of  the  brakes  was  made  upon  a 
reasonable  belief  that  it  was  necessary  to 
apply  them  in  order  to  avoid  injury  to  prop- 
erty, is  properly  qualified  by  excepting  the 
case  of  an  emergency  brought  about  by  the 
railway  company's  employees  in  the  negli- 
gent operation  of  the  train  before  the 
brakes  were  applied,  where  the  jury  might 
have  found  that  the  conductor  did  not  man- 
•90 


age  the  train  with  due  care,  and  so  made* 
the  application  of  the  brakes  necessary. 
[For  otber  cases,  see  Trial,  VII.  a.  In  Digest 
Sup.  Ct.  1008.] 

[Kos.  485  and  004.] 

Argued  April    10   and   20,    1016.    Decided 

May  22,  1016. 

CROSS  WRITS  of  Error  to  the  Court  ot 
Appeals  of  the  SUte  of  Kentucky  to* 
review  a  judgmoit  which,  on  a  second  ap- 
peal, affirmed  a  judgment  of  the  Circuit 
Court  of  Warren  County,  in  that  sUte,  iiv 
favor  of  plaintiff  in  an  action  imder  the 
Federal  employers'  liability  act.     Affirmed. 

See  same  case  below,  first  appeal,  156- 
Ky.  550,  161  S.  W.  557,  157  Ky.  642,  163- 
S.  W.  755;  second  appeal,  163  Ky.  823,  174 
S.  W.  744. 

The  facU  are  sUted  in  the  opinion. 

Mr.  Benjamin  D.  Warfleld  argued  the 
cause,  and,  with  Messrs.  James  C.  Sims  and 
John  B.  Rodes,  filed  a  brief  for  the  Louis- 
ville &  Nashville  Railroad  Company: 

There  is  no  provision  in  the  Federal  em- 
ployers' liability  act  authorizing  the  allow- 
ance of  interest  and  damages  in  addition  to- 
compensation  for  loss  of  pecuniary  benefiU. 
We  may  not  piece  out  this  act  of  Congress- 
by  resorting  to  the  local  statutes  of  the  sUte 
of  procedure  or  that  of  the  injury. 

Michigan  C.  R.  Co.  v.  Vreeland,  227  U.  S. 
50,  66,  57  L.  ed.  417,  410,  33  Sup.  Ct.  Rep. 
102,  Ann.  Cas.  1014C,  176. 

If  the  Federal  sUtute  was  applicable,  the 
sUU  sUtuta  was  excluded  by  reason  of  the 
supremacy  of  the  former  under  the  national 
Constitution. 

Second  Employers'  Liability  Casea 
(Mondou  v.  New  York,  N.  H.  &  H.  R.  Co.) 
223  U.  S.  1-53,  56  L.  ed.  327-347,  38- 
LJl»^.(N.S.)  44,  32  Sup.  Ot.  Rep.  160,  1 
N.  C.  C.  A.  875;  Michigan  C.  R.  Co.  v.  Vree- 
land, supra;  St.  Louis  &  S.  F.  R.  Co.  v. 
Seale,  220  U.  S.  156,  158,  57  L.  ed.  1120^ 
1133,  33  Sup.  Ct.  Rep.  651,  Ann.  CaM.  1014C,. 
156;  Winfield  v.  New  York  C.  &  H.  R.  R, 
Co.  216  N.  Y.  284,  L.R.A.  — ,  — ,  110  N.  EL 
614,  Ann.  Cas.  1016A,  817,  10  N.  C.  O.  A. 
016. 

The  Federal  employers'  liability  act  may 
not  be  supplemented  by  sUte  law  so  as  to> 
authorize  danu&ges  and  interest  such  as  is- 
authorized  by  the  law  of  the  state  in  which 
the  case  is  tried. 

Norton  v.  Erie  R.  Co.  163  App.  Div.  468,. 
148  N.  Y.  Supp.  771. 

There  is  no  evidence  that  Stewart  was  in- 
jured as  a  result  of  the  negligence  of  the 
defendant,  and  a  peremptory  instruction  to> 
find  in  its  favor  shoiild  have  been  given. 
And  this  is  a  Federal  questicm. 

St.  Louis,  I.  M.  &  S.  R.  Co.  v.  McWhirter^ 

241  V.  S» 


1016.  Louisvim;  &  n.  r.  co.  ▼.  stewakt. 

229  U.  B.  265,  57  L.  ed.  1170,  33  Sup.  Ct.  aion  (Seaboard  Air  line  R.  Co.  ».  Horton, 
Kep.  8S8;  Seaboard  Air  Line  R.  Co.  v.  233  U.  S.  402,  58  L.  ed.  1062,  L.ILA.1015C, 
Padgett,  236  U.  8.  6GB,  SO  L.  ed.  777,  3E  1,  34  Sup.  Ct.  Rep.  S3o,  Ann.  Cm.  1016B, 
Sup.  Ct.  Rep.  481;  Seabo&rd  Air  Line  R.  475,  8  N.  C.  C.  A.  834;  Soaboard  Air  Line 
Co.  V.  Moore,  228  U.  S.  434,  67  L.  ed.  907,  R.  Co.  v.  Pad^U,  236  U.  8.  668,  SO  L.  ed. 
33  Sup.  CL  Rep.  680;  Central  Vermont  R.  777,  35  Sup.  Ct.  Rep.  481).  But  for  the 
Co.  V.  Whit«,  238  U.  S.  507,  69  L.  ed.  1433,  erroneous  ruling  o{  the  trial  court  in  aub- 
35  Sup.  Ct.  Rep.  666,  Ann.  Caa.  1916B,  252,  mitting  the  caac  to  the  jury  as  to  Hill,  the 
9  N.  C.  C.  A.  2SS;  Atlantic  Coast  Line  R.  result  of  tlie  action  of  the  jur;  might  have 
Co.  T.  Bumette,  239  U.  8.  ISO,  ante,  226,  36  been  dilTerent  (North  Caroliui  R.  Co.  v. 
Sup.  Ct  Rep.  76;  North  Carolina.  R.  Co.  t.  Zachary,  232  U.  S,  24S,  2o6,  58  L.  ed.  501, 
Zachary,  232  U.  S.  248,  68  L.  ed.  5Q1,  34  504,  34  Sup.  Ot.  Rep.  305,  Ann.  Cat.  1914C, 
Sup.  Ct  Rep.  305,  Ann.  Caa.  1914C,  160,  9  159,  0  N.  C.  C.  A.  100). 
H.  C.  O.  A.  100 ;  Seaboard  Air  Line  R.  Co.  The  ceee  should  not  have  been  aubmitted 
T.  Duvall,  225  U.  S.  477,  66  L.  ed.  1171,  32  to  the  jurf  aa  to  Jones.  Even  if  he  should 
Sup.  Ct  Rep.  790;  St  Louis,  I.  M.  &  S.  R.  not  have  aignnled  the  train  back  until 
Co.  V.  Taylor,  210  U.  S.  2BI,  52  L.  ed.  1061,  Hill  had  thrown  the  south  ev/ltch  for  the 
26  Sup.  Ct.  Rep.  616,  21  Am.  Neg.  Rep.  464.  main  track,  and  even  though  this  would 
The  Federal  employers'  liability  act  made  \i;\\i'  benn  nci^ligoncc  as  to  some  other  per- 
no  change  in  the  substantive  law  ot  negli-  i^uii  if  he  had  been  injured,  it  was  not 
gence.  Actionable  negligence  for  which  the  negligence  as  to  Stewart,  because:  (a)  the 
master  is  liable  must  be  proved  since,  just  risk  of  being  injured  front  that  cause  was 
as  before,  the  act.  one  which  Stewart  assumed  in  enter- 
Seaboard  Air  Line  R.  Co.  *.  Hortou,  233  ing  and  remaining  in  defendant's  serv- 
U.  S.  402,  601,  58  L.  ed.  1062,  106S,  L.R.A.  ice;  and  (b)  the  injury  to  Stewart  was 
1015C,  1,  34  Sup.  Ct.  Rep.  636,  Ann.  Cas.  one  which  Jones  could  not  reasonably  have 
1015B,  475,  6  N.  C.  C.  A.  834.  foreseen  as  a  consequence  of  his  causing  the 

In  an  action  by  a  servant  to  recover  dam-  train  to  be  bar)^cd. 
agea  for  injuries  while  in  the  master's  em-        St.  Louis  &,  S.  F.  R.  Co.  v.  Conarty,  238 

ployment,  there  is  no  presumption  that  the  U.  S.  243,  59  L.  ed.  1200.  35  Sup.  Ct.  Rep. 

master  waa  negligent.    The  doctrine  res  ipsa  785 ;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Mc- 

loquitur  is  not  applicable.  Whirter,  229  U.  S.  205,  57  L.  ed.  1170,  33 

Patton  v.  Texas  *  P.  R.  Co.  170  U.  S.  658,  Sup.  Ct.  Rep.  868. 
45  L.  ed.  361,  21  Sup,  Ct.  Rep.  273;  Texas        The  matter  of   diminishing  the  damasea 

ft  P.  R.  Oo.  ».  Barrett,  186  U.  S.  817,  41  was  commitkd  to  the  jury  without  naming 

L.   ed.  1136,   17   Sup.  Ct.   Rep.  707,   1   Am.  any  stnndard  to  which  their  action  should 

Neg.  Rep.  746 ;  Seaboard  Air  Line  R.  Co.  v.  conform   other   than   their   own   conception 

Moore,  228  U.  S.  433,  67  L.  ed.  007,  33  Sup.  of  what  was  reasonable. 
Ct.  Rep.  580;  Northern  P.  R.  Co.  v,  Dixon,        Norfolk  ft  W.  R.  Co,  v.  Earnest,  228  U,  S. 

71  C.  C.  A.  556,  130  Fed.  737,  19  Am.  Neg.  114,  121,  122,  57  L.  ed,  1006,  1100,  1101,  33 

Rep.     637;     Midland     Valley     R,     Co,     t.  Sup,   Ct   Rep.  654,  Ann,   Caa.   1014C,   172; 

Fuigham,  L.R.A.  — ,  — ,  104  C.  a  A.  151,  Sealjoard  Air  Line  R,  Co.  v,  Tilgham,  237 

181  Fed.  91;  Montbriand  v.  Chicago,  St  P.  U.  S.  400,  50  L.  ed.  lOGO,  35  Sup.  Ct.  Rep. 

U.  ft  0.  R.  Co.  101  Fed.  988.  633. 

The  opinion  on  the  former  appeal  is  the       The  Judgment  of  the  court  of  appeals  of 
law  of  the  ease  on  aubsequent  appeals.  Kentucky  on  the  first  appeal,  which  plain- 
Stewart  V.  Louisville  ft  N.  R.  Co.  136  Ky.  tiff  is  seeking  to  have  rL'vicwed  here,  was 
717,  126  S.  W.  164;  Western  U.  Tclcg.  Cto.  not  a  final  judgment  and  i*  not  reviewable 
r.  Button,  140  Ky,  729,  131  S.  W.  773;  Goff  by   this   court. 

V.  Lowe,  141  Ky.  789.  133  S.  W.  905.  3  pogter.  Fed.  Pr.  g  806,  p.  2421 ;  Tracy 

Hill    (brakeman)   was  not  negligent.     If  ,    Holcombe,  24  How.  426,  16  L.  ed.  742; 

he  was  not,  then,  manifestly  the  trial  court  s^own  v.  Union  Bank,  4  Ho*.  405,  11  L.  ed. 

erred  maubmittrng  the  caw  to  the  jury  as  ^f,^g     p  ^     ^^^         g    H„^     „     jg 

to  the  alleged  neghgence  of  Hill.     And  in-  ^_  ^  j^^^,^^^  ^    j^^^^  ^  „  j, 

umuch  as  it  is  impossible  to  say  that  the  o    1    oi  i    .j    las    « _   i>„i.i.i  .    m 

jury  would  have  follnd  for  plainliff  at  all,  t  ,',    ».    o,  t      J  ^«     t\  S-'-.l 

or  thct  their  verdict  would  have  been  the  "'"»■  ^^^-  2"  ^/<'-  ""l  i°^''«"L^'"'' 

»n>e  it  the  court  had  withdrawn  the  case  "^  ""  S-  "9.  2B  I*  ^-  888.  8  Sup.  «.  Rep. 

from  the  jury  «  to  HiU,  and  had  submitted  ^^O;   Houston   v.   Moore,   3   Wheat   433,   4 

it  only  aa  to  Jones    (conductor).  It  neces-  L.  ed.  428;   Mower  v.  Fletcher,   114  D.   S. 

aarlly  fojlowa  that  the  judgment  was  erro-  127,   29   L.   ed.   117,  6   Sup.   Ct.  Rap.   700; 

naous  and  should  be  reversed,  even  though  Parcels  v.  Johnson,  20  Wall.  653,  22  L.  ed. 
the  court  should  be  of  opinion  that  Joneai410;  Bostwick  v.  BrinkerhoS,  106  U.  S.  3, 

waa  negligent  aa  to  Stewart  on  that  occa-  27  L.  ed.  73, 1  Sup.  Ct  Rep.  Ifi;  Cfaempeake 
•0  li.  ed.  *•! 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tesjc, 


A  O.  R.  Co.  T.  McCabe,  213  U.  S.  207,  33 
L.  ed.  765,  20  Sup.  Ct.  Rep.  430. 

If  there  had  been  no  other  error  in  the 
first  judgment  of  the  Warren  circuit,  it 
should  have  been  reversed  hj  the  court  of 
appeals  because  of  the  error  in  the  measure- 
of -damage  instruction;  and  therefore  plain- 
tiff was  not  deprived  of  any  Federal  right 
to  which  she  was  entitled  by  the  action  of 
the  court  of  appeals  in  reversing  a  judg- 
ment secured  under  a  measure-of-damage 
instruction  which  is  condemned  by  every 
utterance  of  this  court  on  that  s^^bject. 

Michigan  C.  R.  Co.  v.  Vreeland,  227  U.  S. 
50,  57  L.  ed.  417,  33  Sup.  Ct.  Rep.  102,  Ann. 
Oas.  1014C,  176;  American  R.  Co.  v.  Did- 
ncksen,  227  U.  S.  145,  57  L.  ed.  456,  33 
Sup.  Ct.  Rep.  224;  Gulf,  C.  &  S.  F.  R.  Co. 
T.  McGinnis,  228  U.  S.  173,  57  L.  ed.  785, 
33  Sup.  Ct.  Rep.  426,  3  N.  C.  C.  A.  806; 
St.  Louis,  S.  F.  A  T.  R.  Co.  v.  Scale,  220 
U.  S.  156,  57  L.  ed.  1120,  33  Sup.  Ct.  Rep. 
«51,  Ann.  Cas.  1014C,  156;  Norfolk  &  W.  R. 
Co.  V.  Holbrook,  235  U.  S.  626,  50  L.  ed. 
302,  35  Sup.  Ct.  Rep.  143,  7  N.  C.  C.  A. 
^14;  Garrett  v.  Louisville  &  N.  R.  Co.  235 
U.  S.  308,  50  I.  ed.  242,  35  Sup.  Ct.  Rep. 
32. 

The  cases  are  conclusive  in  our  favor 
against  plaintiff's  proposition  that  we  had 
no  right  to  complain  of  the  instructions 
which  the  court  of  appeals  condemned  on 
the  first  appeal  because  we  did  not  offer 
correct  instructions  in  their  stead. 

Louisville  &  N.  R.  Co.  v.  Harrod,  115  Ky. 
^77,  75  S.  W.  233;  Chesapeake  &  0.  R.  Co. 
V.  Dwyer,  157  Ky.  500,  163  S.  W.  752; 
Louisville,  H.  &  St.  L.  R.  Co.  v.  Roberts, 
144  Ky.  820,  130  S.  W.  1073;  South  Cov- 
ington &  C.  Street  R.  Co.  v.  Core,  20  Ky. 
L.  Rep.  836,  06  S.  W.  562. 

Defendant's  exceptions  satisfied  the  re- 
quirements of  the  Kentucky  practice. 

Louisville  &  N.  R.  Co.  v.  McCoy,  81  Ky. 
403;  Meaux  t.  Meaux,  81  Ky.  475;  Hel- 
irich  Saw  &  Planing  Mill  Co.  v.  Everly,  17 
Ky.  L.  Rep.  705,  32  S.  W.  750;  American 
Ins.  Co.  V.  Austin,  18  Ky.  L.  Rep.  632,  37 
S.  W.  678;  Louisville,  H.  &  St.  L.  R.  Co.  v. 
Roberts,  144  Ky.  820,  130  S.  W.  1073. 

Under  the  law  of  Kentucky,  if  the  case 
was  to  go  to  the  jury  at  all,  defendant  was 
entitled  to  have  all  of  the  issues  of  fact 
submitted  to  the  jury. 

J(^m  King  Co.  v.  Louisville  &  N.  R.  Co. 
131  Ky.  53,  114  S.  W.  308. 

It  is  not  essttitial  that  there  should  have 
been  direct  evidence  in  order  to  raise  an 
issue  of  fact  for  the  jury  on  the  question  of 
contributory  negligence. 

Watkins  v.  Henderson,  168  Kv.  622,  182 
S.  W.  837. 

It  is  the  duty  of  the  jury  to  fix  the  dam- 
Ages  under  proper  instruction^  and  the 
«9S 


court  cannot  say  that  the  jury's  verdict 
would  have  been  the  same  if  a  correct 
measure-of-damage  instlruction  had  been 
given,  instead  of  one  that  was  incorrect. 

Covington  Saw  Mill  &  Mfg.  Co.  v.  Drcx- 
ilius,  120  Ky.  403,  117  Am.  St.  Rep.  503,  87 
S.  W.  266. 

If  the  argument  of  plaintiff  were  sound, 
a  judgment  would  never  be  reversed  because 
of  an  erroneous  measure-of-damage  instruc- 
tion, with  the  result  that  the  courts  would 
be  fixing  the  amount  of  the  damages,  in- 
stead of  juries,  who  are  the  constitutional 
triers  of  such  questions. 

Slocum  V.  New  York  L.  Ins.  Co.  228  U.  S. 
364,  57  L.  ed.  870,  33  Sup.  Ct  Rep.  523, 
Ann.  Cas.  1014D,  1020. 

A  person  is  only  responsible  for  the  con- 
sequences which  may  reasonably  be  ex- 
pecied  to  flow  from  his  acts. 

21  Am.  &  Eng.  Enc.  Law,  486;  Milwau- 
kee &  St  P.  R.  Co.  V.  KeUogg,  04  U.  S.  469, 
24  L.  ed.  256;  Scheffer  v.  Washington  City, 
V.  M.  &  G.  S.  R.  Co.  105  U.  S  240,  26  L.  ed. 
1070;  Chicago,  St.  P.  M.  &  0.  R.  Co.  y. 
Elliott,  20  L.Rji.  582,  5  C.  C.  A.  347,  12 
U.  S.  App.  381,  55  Fed.  040,  7  Aul  Neg. 
Cas.  478;  Hoag  v.  Lake  Shore  &  M.  S.  R« 
Co.  85  Pa.  203,  27  Am.  Rep.  653;  Motey  t. 
Fickle  Marble  &  Granite  Oo.  20  C.  C.  A. 
366,  36  U.  S.  App.  682,  74  7ed.  155;  Addi- 
son, Torts,  §  6;  Gilson  v.  Delaware  &  H. 
Canal  Co.  65  Vt.  213,  36  Am.  St  Lep.  802, 
26  Atl.  70;  Gosney  v.  i^uisviUe  &  N.  R.  Co. 

160  Ky.  323,  L.R.A.  1016E,  — ,  183  S.  W. 
538. 

Mr.  Benjamin  D.  Warfield  also  united  in 
a  joint  brief  raising  the  question  of  the  ap- 
plication of  the  7th  Amendment  to  the  Fed- 
eral Constitution,  an  abstract  of  which  will 
be  found  in  connection  with  the  report  of 
Chesapeake  Jt  0.  R.  Co.  v.  Kelly,  post,  1117. 

Mr.  George  H.  Lamar  argued  the  cause, 
and,  with  Messrs.  B.  F.  Procter,  C.  U.  Mc- 
EUory,  and  D.  W.  Wright,  filed  a  brief  for 
Jeanette  Stewart,  administratrix: 

However  this  court  may  be  disposed  to 
treat  Kentucky  verdicts  of  less  than  twelve. 
We  submit  that,  even  under  the  most  ex- 
treme view  which  the  court  might  take  oi 
the  applicability  of  the  7th  Amendment  to 
the  trial  of  Federal  ^nployers'  liability  act 
cases  in  the  state  courts,  the  actual  unani- 
mous verdict  of  twelve  jurors,  as  in  the  case 
at  bar,  would  hardly  be  disturbed. 

Chesapeake  &  0.  R.  Co.  v.  Kelly,  241 
U.  S.  485,  post,  1117  36  Sup.  Ct  Rep.  630, 

161  Ky.  655,  171  S.  W.  185. 

It  will  hardly  be  claimed  that  a  party  who 
has  asserted  a  right,  privilege,  or  immun- 
ity under  a  Federal  statute,  and  has  been 
deprived  thereof  by  judgment  of  a  state 
court,  can  be  deprived  of  a  right  to  a  re- 

S41  V.  8. 


1915. 


LOUISVILLE  &  N.  R.  CO.  ▼.  STEWART. 


▼lew  by  writ  of  error  from  this  court  to  the 
appropriate  state  court. 

Nutt  V.  Knutt,  200  U  S.  12,  50  L.  ed.  348, 
26  Sup.  Ct.  Rep.  216. 

Even  where  the  right  was  erroneously  as- 
serted under  the  Federal  employers'  liabil- 
ity act,  this  court  will  hear  and  determine 
the  case  on  its  merits. 

Shanks  v.  Delaware,  L.  &  W.  R.  Oo.  230 
U.  S.  556,  ante,  436,  36  Sup.  Ct.  Rep.  188. 

The  judgment  of  February  27,  1914,  re- 
versing the  judgment  for  $20,000  of  April 
11,  1912,  remanding  the  case  to  the  trial 
court  for  a  new  trial  and  for  further  pro- 
ceedings consistent  with  the  opinion  and 
modified  opinion  therein,  was  not  a  final  de- 
cision or  judgment  within  the  meaning  of 
the  statute,  and  no  writ  of  error  from  this 
court  to  the  state  court  would  then  have 
been  allowed. 

Chesapeake  &  0.  R.  Co.  v.  McCabe,  213 
U.  S.  207,  214,  53  L.  ed.  765,  768,  29  Sup. 
Ct.  Rep.  430;  Louisiana  Nav.  Co.  v.  Oyster 
Commission,  226  U.  S.  99,  102,  57  L.  ed.  138, 
140,  33  Sup.  Ct.  Rep.  78;  Schlosser  v. 
Hemphill,  198  U.  S.  173,  49  L  ed.  1000,  25 
Sup.  Ct.  Rep.  654. 

It  is  within  the  power  and  duty  of  this 
court  to  take  jurisdiction  under  the  writ  of 
«rror,  and  if  the  errors  assigned  are  sus- 
tained, to  proceed  by  appropriate  judg- 
ment to  restore  to  the  original  plaintiff  in 
the  action  the  rights  of  which  she  and 
those  whom  she  represents  have  been  de- 
prived by  the  'reversal  of  the  original  judg- 
ment for  $20,000. 

Louisiana  Nav.  Co.  v.  Oyster  Commission 
and  Chesapeake  &  0.  R.  Co.  v.  McCabe, 
supra;  Campbell  v.  Northwest  Eckington 
Improv.  Co.  229  U.  S.  561,  585,  57  L.  ed. 
1330,  1340,  33  Sup.  Ct.  Rep.  796;  Perkins 
v.  Northern  P.  R.  Co.  118  C.  C.  A.  150,  199 
Fed.  712;  Coit  v.  Sistare,  85  Conn.  573,  84 
AtL  119,  Ann.  Cas.  1913C,  248;  3istare  v. 
Sistare,  218  U.  S.  1,  54  L.  ed.  905,  28 
L.R.A.(N.S.)  1068,  30  Sup.  Ct.  Rep.  682, 
20  Ann.  Cas.  1061 ;  Ragan  v.  Cuyler,  24  Ga. 
400;  Hull  V.  Vyest  Chicago  Park  Comrs. 
185  111.  150,  57  N.  E.  1;  Cahill  v.  Lillien- 
thal,  30  Misc.  429,  62  N.  Y.  Supp.  524; 
Muse  V.  Stern,  82  Va.  33,  3  Am.  St  Rep. 
77 ;  Green  County  v.  Thomas,  211  U.  S.  598, 
602,  603,  53  L.  ed.  343,  345,  346,  29  Sup.  Ct 
Rep.  168;  Jones  Nat.  Bank  v.  Yates,  240 
U.  S.  541,  ante,  788,  36  Sup.  Ct  Rep.  449. 

Where  the  state  court  does  not  decide 
against  th^  plaintiff  in  error  upon  an  inde- 
pendent sti9e  ground,  but,  deeming  the  Fed- 
eral question  to  be  before  it,  actually  enter- 
tains it  and  decides  it  adversely  to  the  Fed- 
eral right  asserted,  this  court  has  jurisdic- 
tion to  review  the  judgment. 

Rogers  v.  Hennepin  County,  239  U.  S. 
621,  ante,  469,  36  Sup.  Ct  Rep.  217.  ' 

•0  li.  ed. 


The  failure  of  the  trial  court  particularly 
to  specify  in  its  charge  in  an  action  under 
the  Federal  employers'  liability  act  of  April 
22,  1908,  some  matters  to  which  its  atten- 
tion was  not  suitably  called,  is  not  ground 
for  reversal. 

Illinois  C.  R.  Co.  t.  Skaggs,  240  U.  S.  66, 
ante,  528,  36  Sup.  Ct  Rep.  249. 

There  was  no  error  in  the  instructions  on 
the  measure  of  damages  prejudicial  to  the 
railroad  company. 

Chesapeake  &  0.  R.  Co.  v.  Dwyer,  157  Ky. 
590,  163  S.  W.  752;  Michigan  C.  R.  Co.  v. 
Vreeland,  227  U.  S.  71,  57  L.  ed.  422,  33  Sup. 
Ct  Rep.  192,  Ann.  Cas.  1914C,  176. 

The  railroad  company  will  not  be  granted 
by  this  court  immunity  from  that  part  of 
the  judgment  below  denominated  as  costs, 
interest  on  the  judgment,  and  damages 
under  the  state  supersedeas  statute. 

Southern  R.  Co.  v.  Gadd,  233  U.  S.  572» 
58  L.  ed.  1099,  34  Sup.  Ct  Rep.  696. 

The  application  of  the  air  brake  without 
warning,  especially  in  violation  of  the  rules, 
constitutes  negligence  within  the  meaning 
of  the  employers'  liability  act. 

Chesapeake  &  O.  R.  Co.  v.  Savage,  150 
Ky.  263,  150  S.  W.  350;  Roberts,  Injuries 
to  Interstate  Employees  on  Railroads, 
pp.  55,  56. 

And  in  such  cases  the  jury  is  free  to  infer 
negligence  even  in  the  face  of  the  testimony 
of  other  members  of  the  train  crew  to  the 
effect  that  the  train  was  handled  in  the 
usual  and  ordinary  way,  without  any  un- 
necessary force  or  jar. 

Ft.  Worth  &  D.  C.  R.  C6.  y.  Stalcup,  — 
Tex.  Civ.  App.  — ,  167  S.  W.  279. 

There  was  ample  evidence  to  go  to  the 
jury  on  the  subject  of  n^ligence  of  the 
company;  and  the  refusal  of  the  trial  court 
to  give  the  jury  a  peremptory  instruction 
in  favor  of  the  railroad,  and  the  failure  of 
the  court  of  appeals  to  reverse  the  judgment 
by  reason  of  its  failure  so  to  do,  cannot  sup- 
ply any  genuine  basis  for  review  by  this 
court  on  writ  of  error  under  §  237  of  the 
Judicial  Code. 

Great  Northern  R.  Co.  v.  Knapp,  240  U. 
S.  464,  ante,  745,  36  Sup.  Ct.  Rep.  399. 

The  qualifying  clause  of  the  instruction 
was  made  necessary  and  appropriate  by 
the  peculiar  facts  in  the  case. 

Louisville  &  N.  R.  Co.  v.  Street,  139  Ky. 
186,  139  Am.  St  Rep.  471,  129  S.  W.  570; 
Perkins  v.  Northern  P.  R.  Co.  118  C.  C.  A. 
150,  199  Fed.  712;  Transit  Development  Co. 
V.  Cheatham  Electric  Switching  Device  Co. 
114  C.  C.  A.  599,  194  Fed.  963;  Galveston, 
H.  ft  S.  A.  R.  Co.  V.  Bosher,  —  Tex.  Civ. 
App.  — ,  165  S.  W.  93;  Kansas  City  South- 
ern R.  Co.  T.  Leslie,  112  Ark.  305, 167  S.  W. 
83,  Ann.  Gas.  1915B,  834;  Pennsylvania 
R.  Co.  y.  Goughnour,  126  C.  C.  A.  39,  208 


262-264 


8UPRBMB  COURT  OF  THB  UNITED  STATES. 


OOT. 


Ta^, 


Fed.  064;  Louisrille  &  N.  R.  Co.  t.  Qilliam, 
24  Ky.  L.  Rep.  1686,  71  S.  W.  863;  Louis- 
rille &  N.  R.  Ck>.  T.  Qordon,  24  Ky.  L.  Rep. 
1819,  72  S.  W.  811. 

Messrs.  George  H.  Lamar,  B.  F.  Procter, 
0.  U.  McEllory,  and  D.  W.  Wright  also 
united  in  a  joint  brief  raising  the  question 
of  the  application  of  the  7th  Amendment 
to  the  Federal  Constitution,  an  abstract  of 
which  will  be  found  in  connection  with  the 
report  of  Chesapeake  &  O.  R.  Co.  y.  Kelly, 
post,  1117. 

Mr.  Justice  Holmes  delivered  the  opin- 
ion of  the  court: 

This  is  an  action  brought  under  the  em- 
ployers' liability  act  of  April  22, 1908,  chap. 
149,  35  Stat,  at  L.  65,  Comp.  Stat.  1913, 
S  8657,  against  the  railroad  company  for 
negligently  causing  the  death  of  the  plain- 
tiff's intestate,  her  husband.  There  were 
two  trials.  A  yerdict  and  judgment  for  the 
plaintiff  at  the  first  were  set  aside  by  the 
court  of  appeals.  156  Ky.  550,  161  S.  W. 
557;  157  Ky.  642,  163  S.  W.  755.  A  judg- 
ment for  a  less  amount  at  the  second  trial 
was  sustained.  163  Ky.  823,  174  S.  W.  744. 
The  railroad  company  seeks  to  overthrow 
the  last  judgment;  the  plaintiff,  by  her 
cross  writ,  seeks  to  reinstate  the  first;  but, 
failing  that,  contends  that  the  last  should 
be  affirmed;  denying,  that  is,  that  there  are 
any  grounds  for  the  railroad  company's 
writ. 

The  object  of  the  plaintiff's  writ  of  error 
was  to  go  behind  the  second  trial  and  rein- 
state the  first  judgment.  But  the  verdict 
was  found  upon  an  instruction  that  the 
jury  should  find,  if  anything,  "such  a  sum 
as  will  fairly  compensate  his  estate  for  his 
death," — ^given,  it  would  seem,  in  forgetful- 
ness  that  the  case  arose  under  the  act  of 
Congress.  See  167  Ky.  642.  This  instruc- 
tion was  excepted  to,  and  neither  justice 
nor  law  would  permit  the  verdict  and  judg- 
ment based  upon  it  to  be  reinstated  after  the 
state  court  had  set  it  aside.  We  therefore 
examine  the  arguments  in  904  no  farther, 
and  do  not  consider  whether  if,  in  our  opin- 
ion, there  had  been  no  error  of  Federal  law 
at  the  first  trial,  the  plaintiff  could  have 
had  the  relief  that  she  asks.  Fairfax  v. 
Hunter,  7  Cranch,  603,  628,  3  L.  ed.  453, 
461 ;  [263]  Jones  Nat.  Bank  v.  Yates,  240 
U.  S.  541,  563,  ante,  788,  801,  36  Sup.  Ct 
Rep.  429. 

The  railroad  company  had  for  its  princi- 
pal object  in  bringing  the  case  here  to  set 
up  the  7th  Amendment,  and  to  deny  juris- 
diction in  any  state  eourt  where  a  verdict 
of  nine  or  more  out  of  the  twdva  men  on 
the  jury  was  allowed  by  the  local  law.  The 
notion  that  a  substantiya  ri^^t  vesting  un* 
tt4 


der  the  law  of  one  jurisdiction  cannot  be 
recognized  and  enforced  in  another,  at 
least,  as  between  the  United  States  and  a 
state,  unless  by  procedure  identical  with 
that  of  the  first,  is  disposed  of  in  Minneapo- 
lis &  St.  L.  R.  Co.  v.  Bombolis  [241  U.  S. 
211,  ante,  961,  86  Sup.  Ct.  Rep.  595]. 

The  first  of  the  other  objections  is  that 
the  court  of  appeals  was  not  authorised  to 
add  10  per  cent  damages  on  the  amount  of 
the  judgment,  as  it  did.  But  the  railrcMul 
company  obtained  a  supersedeas,  and  the 
law  of  the  state  makes  10  per  cent  the  cost 
of  it  to  all  persons  if  the  judgment  is  af- 
firmed. There  was  no  obligation  upon  the 
state  to  provide  for  a  suspension  of  the 
judgment,  and  nothing  to  prevent  its  mak- 
ing it  costly  in  cases  where  ultimately  the 
judgment  is  upheld.  So,  the  state  may  al- 
low interest  upon  a  judgment  from  the  time 
when  it  is  rendered,  if  it  provides  appellate 
proceedings  and  the  judgment  Is  affirmed, 
as,  but  for  such  proceedings,  interest  would 
run  as  of  course  until  the  judgment  was 
paid. 

The  railroad  company  contends  at  some 
length  that  the  case  should  have  been  taken 
from  the  jury  by  the  direction  of  a  verdict 
in  its  favor.  As  the  opinion  of  both  courts 
below  and  the  jury  were  against  it,  and  as 
we  agree  with  their  judgment,  we  shall  not 
discuss  this  assignment  of  error  at  length. 
Great  Northern  R.  Co.  v.  Knapp,  240  U.  S. 
464,  466,  ante,  745,  751,  36  Sup.  Ct.  Rep.  399. 
The  facts  were  these:  Stewart,  the  de- 
ceased, was  engineer  on  a  north -bound 
freight  train  upon  a  single  track,  that  had 
to  go  upon  a  siding  to  make  way  for  a 
south-bound  freight  train.  There  were  cars 
already  on  the  siding  which  Stewart's  train 
pushed  ahead,  and  this  [264]  train  and  the 
cars  more  than  filled  the  siding.  Therefore 
they  pushed  forward  onto  the  main  track 
to  the  rear  of  the  south-bound  train,  and 
the  latter  went  on  its  way.  It  still,  how- 
ever, was  necessary  to  keep  the  main  track 
clear  for  another  south-bound  train,  and 
therefore  Stewart's  train  «began  to  back  so 
as  to  free  the  main  track  north  of  the 
switch,  which  would  be  the  first  point 
reached  by  the  expected  train.  While  it  was 
backing  and  approaching  the  southerly  end 
of  the  switch,  the  rear  brakeman  suddenly 
applied  the  air  brakes,  and  the  sudden  riioek 
caused  the  engineer  to  strike  his  head 
against  the  cab,  by  reason  of  which  he  died. 
The  conductor  in  charge  of  the  movement 
testified  that  he  intended  not  Jk>  cross  the 
southerly  point  of  the  switch,  and  it  could 
be  found  that  the  brakeman's  act  was  a 
breach  of  duty,  that  it  manifestly  would 
cause  a  sudden  shock,  and  that,  although 
the  particular  position  of,  or  speeifie  dam- 
age to,  Stewart^  was  unknown  to  the  brake* 

S4i  V.  8. 


Ifl6. 


UKITED  STATES  t.  FORTY  BARRELa 


264,206 


fluoif  gmerlealfy  ft  was  the  kind  of  thing 
that  WM  likely  to  happen,  and  that  he  and 
his  empl<^en  were  liable  for  oontequencee 
el  that  eort.  The  Jurj  was  instructed  that 
Stewart  assumed  the  risks  incident  to  his 
employment,  and  that,  if  the  application 
of  the  air  brakes  was  made  upon  a  reason- 
able belief  tiiat  it  was  necessary  to  apply 
them  in  order  to  avoid  injury  to  property, 
th^  should  find  for  the  defendant  unless 
they  found  that  the  emergency  was  brought 
about  by  the  defendant's  serrants  in  the 
negligent  operation  of  the  train  before  the 
brakes  were  applied.  As  an  abstract  propo- 
sition the  qusIiflcatioB  was  correct,  and  the 
jury  might  have  found  that  the  conductor 
did  not  manage  the  train  with  due  care,  and 
■o  made  the  application  necessary.  What- 
erer  might  have  been  our  opinion  had  we 
been  in  the  jury's  place,  we  do  not  fed  war* 
ranted  in  saying  that  they  had  no  evidence 
to  go  upon,  or  that  the  instructions  were 
wrong. 
Judgment  affirmed. 


[265]  UNITED  STATES,  Plff.  in  Err., 

v. 

FORTY  BARRELS  and  Twenty  Kegs  of 
Coca  Cola,  the  Coca  Cola  Company  of 
Atlanta,  Georgia,  Complainant. 

(See  S.  O.  Reporter's  ed.  265-200.) 

Food  and  drugs  —  proprietary  food  — 
adulteration  —  added  harmful  In- 
gredient. 

1.  A  poisonous  or  deleterious  ingredient 
called  for  as  a  constituent  by  a  secret  for- 
mula for  a  food  product  sold  under  its  own 
distinctive  name  may  still  be  an  added  in- 
gredient within  the  meaning  of  the  provi- 
sions of  the  food  and  drugs  act  of  June  30, 
1906  (34  Stat,  at  L.  768,  chap.  3915,  Comp. 
Stat.  1913,  §  8717),  condemning  as  adulter- 
ated any  article  of  food  that  contains  "any 
added  poisonous  or  other  added  deleterious 
infiredient  which  mav  render  such  article 
injurious  to  health,*'  and  the  provisos  in 
I  8  that  food  mixtures  or  compounds  "which 
may  be  now  or  from  time  to  time  hereafter 
known  as  articles  of  food  under  their  own 
distinctive  names"  are  to  enjoy  the  stated 
immunity  only  in  case  they  do  "not  contain 
any  added  poisonous  or  deleterious  ingre- 
dients," and  that  nothing  in  the  act  shall  be 
construed  to  require  manufacturers  of  pro- 
prietary foods  "which  contain  no  unwhole- 
some added  ingredient"  to  disclose  their 
trade  formulas  except  as  the  provisions  of 
the  act  may  require  to  secure  freedom  from 
adulteration  or  misbranding. 

[Pare  food  laws,  see  Food  and  Drnirs,  in  Di- 
gest Sop.  Ct.  1918  Supp.] 

Note. — ^As  to  what  constitutes  adulter- 
ation within  food  and  drugs  acts — see  note 
to  United  States  t.  Lexington  Mill  ft  Ele- 
vator Co.  L.RJk.l915B,  774. 
•0  li.  ed. 


Food  and  drugs  —  adulteration  —  pro- 
prietary food  —  abstracting  taam&fnl 
ingredient. 

2.  The  elimination  of  a  harmful  in- 
gredient from  a  proprietary  food  which, 
without  such  ingrMient,  would  not  be  tiie 
same,  does  not  constitute  an  adulteration 
under  the  food  and  drugs  act  of  June  30, 
1906  (34  Stat,  at  L.  768,  chap.  3915,  Comp. 
Stat.  1913,  §  8717),  §  7,  bv  the  abstraction 
of  a  "valuable  constituent." 

[Pore  food  laws,  see  Food  and  Drugs,  in  Di- 
gest Sop.  Ct.  1913  Supp.] 

Food  and  drugs  —  adulteration  —  added 
harmful  Ingredient  ^  caffeine. 

3.  Caffeine  hitroduced  into  a  syrup 
during  the  Sjecond  or  third  melting  is  an 
"added"  ingredient  within  the  meaning  of 
the  food  and  drugs  act  of  June  30,  1906 
(84  Stat,  at  L.  768,  chap.  3915,  Comp.  Stat. 
1913,  §  8717),  condemning  as  adulterated 
any  article  of  food  that  contains  "any  added 
poisonous  or  other  added  deleterious  in- 
gredient which  may  render  such  article  in- 
jurious to  health,"  although  it  is  called  for 
as  a  constituent  by  the  secret  formula  un- 
der which  the  syrup  is  compounded. 
[Pore  food  laws,  see  Pood  and  Drugs,  in  Di- 
gest Sop.  Ct.  1913  Snpp.] 

Trial  —  question  for  Jury  —  adultera- 
tion ^  added  finrmful  ingredient. 

4.  Whether  cuffcinc  added  to  a  food 
product  is  a  poisonous  or  deleterious  in- 
gredient which  may  render  the  article  dele- 
terious t6  health,  within  the  meaning  of 
the  act  of  June  30,  1906  (34  Stat,  at  L. 
768,  chap.  3915,  Comp.  Stat.  1913,  §  8717). 
condemnmg  as  adulterated  any  article  of 
food  that  contains  "any  added  poisonous 
or  other  added  deleterious  ingredient  which 
may  render  such  article  injurious  to 
health,"  is  a  question  of  fact  for  the  jury, 
where  the  evidence  on  that  point  is  con- 
flicting. 

(For  other  cases,  see  Trial,  YI.  c,  in  Digest 
Sup.  Ct.  1908.1 

Food  and  drn^s  —  misbranding  —  coca 

cola   «    distinctive     or      descriptive 

name. 

5.  The  name  "Coca  Cola"  cannot  be 
said  as  a  matter  of  law  to  be  distinctive 
rather  than  descriptive  of  a  compound  with 
coca  and  cola  ingredients,  so  as  to  escape 
oondemnation  under  the  food  and  drugs  act 
of  June  30,  1900  (34  Stat,  at  L.  708,  chap- 
8915,  Comp.  Stat.  1913,  §  8717),  §  8,  as 
misbranded  in  case  of  the  absence  of  either 
coca  or  cola,  on  the  theory  that  it  was  with- 
in the  protection  of  the  proviso  in  that  sec- 
tion that  an  article  of  food  shall  not  be 
deemed  to  be  misbranded  in  the  case  of 
"mixtures  or  compounds  which  may  be  now 
or  from  time  to  time  hereafter  known  as 
articles  of  food  under  their  own  distinctive 
names,"  if  the  distinctive  name  of  another 
article  is  not  used  or  imitated,  and  the 
name  on  the  label  or  brand  is  accompanied 
with  a  statement  of  the  place  of  production. 

[Pure  food  laws,  see  Pood  and  Drugs,  in  Di- 
gest Sop.  Ct.  1913  Sopp.] 

Food  and  drugs  —  misbranding  —  coca 

cola   ^   secondary     significance     of 

name. 

6.  A  secondary  significance  cs""'^*  *^ 


SUPREME  COURT  OF  THE  UNITED  STATES.              Got.  Tbic, 

attributed  to  the  name  "Coca  Cola,"  as  de-  York,  N.  H.  &  H.  R.  Co.  ▼.  Interstate  Coai- 
scriptive  of  a  product  known  to  be  destitute  merce  Commission,  200  U.  8.  361,  301,  50 
of  either  of  tlie  producU  indicated  by  its  l.  ed.  616,  621,  26  Sup.  a.  Rep.  272;  John- 
primary  meaning,  so  as  to  save  it  from  ^„  ^  Southern  P.  Co.  196  U.  S.  1.  40  L.  ed. 
condemnation  under  the  food  and  drugs  act  „^„  ^k  r„„  r«f  «*»«  i&a  i7  Am  v-»  Rm» 
of  June  30,  1906  (34  Stat,  at  L.  768,  chap.  ^W.  25  Sup,  Ct.  Rep.  168,  17  Am.  Ni«.  R^. 

3916,  Comp.  Stat.  1913,  §  8717),  §  8,  on  the  *12. 

theory  that  it  is  within  the  protection  ac-  This  court  assumed  in  the  case  of  United 

oorded  by  the  proviso  in   that  section  to  States  v.  Lexington  Mill  &  Elevator  Co.  232 

food  mixtures  or  compounds  known  under  U.  S.  399,  58  L.  ed.  668,  L.R.A.1916B,774, 

their  own  distinctive  names.  34  Sup.  Ct  Rep.  337,  that  it  was  unlawful 

^^ge?t8S?.fe^"i9lfs^u"p^^]*^^^^^^^  to  transport   in   interstate  commerce  flour 

which  contained  nitrites  enough  to  make  it 

[No.  662.]  injurious  to  health.    Under  the  construction 

given  the  act  by  the  circuit  court  of  appeah 

Argued  February  29,  1916.     Decided  May  ""^h  flour,  though  shown  to  be  poisonous 

22   1916.  to  consumers,  might  freely  move  in  inter- 
state commerce  provided  its  manufactureis 

IN  ERROR  to  the  United  States  Circuit  |*ve  it  tlie  distinctiye  name  "Lexiogtonia." 

1   Court  of  Appeals  for  the  SUth  Circuit  f""''"'^'  J^^   ""^7".   '''if ,  '"  ."Z 

to  review  a  jud^iient  which  affirmed  a  judg-  *«»"»«i  «  "»«  "^"'nVf'^^if  IL"^ 

meat  of  the  DUtrict  Court  for  the  Eastern  ^^^J>*  ,^/^""V  "^  T*^'  427    because 

District  of  Tennessee,  entered  upon  a  di-  colored  with  martius  yellow,  would  have, 

reeled  verdict  in  favor  of  the  claimant  in  a  under  thu  construction   escaped  condenmt- 

libel  for  condemnation  under  the  food  and  *>»»  "{  f^r  »  distinctive  name  h«i  been 

drugs  act.    Reversed  and  remanded  for  fur-  ?»\«>  *»  t^«  "*"'«'  •"f  the  inart.u.  yellow 

ther    roceedinffs  included   m   its   formula.     It   is   inconcciv- 

See  same  cfse  below.  132  C.  C.  A.  47,  able  that  this  could  have  been  the  purpose 

215  Fed  635  Congress  m  framing  this  great  remedial 

mi     /  J.    '        J.  J.  J  •     AL        •  2  statute. — that  its  authors  were  fascinated 

The  facts  are  stated  in  the  opmion.  own-u^c,     wi»w  «i.a  •"«-"    »      «^  *a,oviii«i^ 

by  mere  names,  and  satisfied  with  sliadows 

Assistant  Attorney  General  Underwood  instead  of  substance, 

argued   the  cause,   and,   with    Mr.    Elliott  United  States  v.  Louisville  k  N.  R.  Co. 

Cheatham,  filed  a  brief  for  plaintiff  in  er-  235  U.  S.  314,  326,  69  L.  ed.  246,  263,  36 

ror:  Sup.  Ct  Rep.  113. 

This  act  was  primarily  a  health  measure.  There  is  nothing  in  the  meaning  of  the 

United  States  v.  Morgan,  222  U.  S.  274,  word  "added"  to  demand  such  a  construe- 

281,  66  L.  ed.  198,  200,  32  Sup.  Ct.  Rep.  81 ;  tion,  and  to  so  interpret  the  act  will  be- 

Hall-Baker  Grain  Co.  v.  United  States,  117  stroy  its  efficacy. 

C.  C.  A.  318,  198  Fed.  614;  French  Silver  United  States  v.  Baltimore  &  O.  R.  Co. 

I>ragee  Co.  v.  United  SUtes,  103  C.  C.  A.  226  U.  S.  306,  324,  66  L.  ed.  1100,  1106, 

316,  179  Fed.  824;  United  States  v.  John-  32  Sup.  Ct.  Rep.  817. 

8(m,  177  Fed.  313;  United  States  v.  6  Boxes  The     standard     used     in     determining 

of  AsafoBtida,  181  Fed.  661 ;  United  States  whether  a  particular  brand  of  food  is  add- 

V.  Morgan,  181  Fed.  687 ;  United  States  v.  terated  is  the  sum  total  of  all  the  elements, 

1,950   Boxes  of  Macaroni,   181   Fed.   427;  whatever  they  may  be,  of  the  particular 

Gait  V.  United  SUtes,  89  App.  D.  C.  470.  combination. 

It  should  be,  as  it  and  other  remedial  United  States  v.  Lexington  Mill  ft  Ele- 

statutes  have  been,  construed  liberally  to  vator  Co.  232  U.  S.  399,  68  L.  ed.  658,  L.RA. 

accomplish  its  purpose.  1916B,  774,  34  Sup.  Ct.  Rep.  337;  United 

Southern  R.  Co.  v.  Crockett,  234  U.  S.  States  v.  Mayfield,  177  Fed.  766;   Com.  v. 

726,  735,  68  L.  ed.  1564,  1668,  34  Sup.  Ct.  Kevin,  202  Pa.  23,  90  Am.  St.  Rep.  613,  51 

Rep.    897;    United    States    v.    Antikamnia  Ati.  694. 

Chemical  Go.  231  U.  S.  664,  666,  68  L.  ed.  The  act  forbids  the  suggestive  and  mis- 

419,  34  Sup.  Ct.  Rep.  222,  Ann.  Gas.  1916A,  leading   use  of   names   of  known   artidea, 

49;  Hipolite  Egg  Co.  v.  United  States,  220  whether  used  in  combination  or  not,  and 

U.  S.  45,  65  L.  ed.  364,  31  Sup.  Ct.  Rep.  364;  whether  the  deception  be  about  the  article 

McDermott  v,  Wisconsin,  228  U.  S.  115,  57  itself  or  its  ingredients. 

L.  ed.  754,  47  L.R.A.(N.S.)  984,  33  Sup.  Ct  Steinhardt  Bros.  &  Co.  t.  United  States, 

Rep.  431,  Ann.  Gas.  1916A,  39;  IntersUte  112  C.  G.  A.  284,  191  Fed.  798;  Libby,  Mc- 

Commerce  Commission  t.  Goodrich  Transit  Neiil  &  Libby  y.  United  States,  127  C.  C. 

Co.  224  U.  S.  194,  213,  66  L.  ed.  729,  737,  A.  14,  210  Fed.  148;  United  SUtes  t.  300 

32  Sup.  Ct  Rep.  136 ;  United  SUtes  V.  Balti-  Cases  of   Mapleine    (D.  G.  N.   D.   Wis.); 

more  &  0.  R.  Co.  226  U.  S.  306,  324,  66  L.  United  SUtes  v.  Morgan,  181  Fed.  587,  af- 

ed.  1100,  1106,  32  Sup.  Ct  Rep.  817;  New  firmed  in  222  U.  S.  274,  66  L.  ed.  198,  82 

006  S41  V.  8. 


101S. 


UNITKD  STATES  v.  FORTV  BARRELS. 


Sup.  Ct.  Rep.  81  i  United  States  v.  7  Caics 
of  Buffalo  Lithis.  Water,  Federal  Food  t 
Drug  Act  ft  Dec.  p.  697 ;  Clinton  G.  Worden 
t  Co.  T.  Californi*  Fig  Syrup  Co.  187  U. 
B.  Cia,  47  '  L.  ed.  282,  23  Sup.  Ct.  Rep 
101  i  Manhattan  Medicine  Co.  v.  Wood,  ION 
U,  S.  218,  27  L.  ed.  706,  2  Sup.  Ct.  Rep. 
436;  United  SlaUs  v.  2  Cases  of  Sulplio- 
Napthol,  213  Fed.  619;  United  States  v.  2 
Cases  of  Chloro-N^th oleum  Disinfectant, 
217  Fed.  477. 

Messrs.  Harold  Hlrsch  and  J.  B.  Siser 
argued  the  cause,  and,  with  Messrs.  A.  W. 
Chamblisa  and  W.  D.  Thompson,  Sled  a 
brief  for  defendant  in  error: 

In  eonstruing  &  statute,  every  section, 
provision,  and  clause  should  be  explained  by 
reference  to  every  other;  and,  if  possible, 
every  clause  and  provision  shall  avail,  and 
have  the  effect  contemplated  by  the  legisla- 

Montdair  Twp.  v.  Ramsdell,  107  U.  S. 
147,  27  L.  ed.  431,  2  Sup.  Ct.  Rep.  891; 
Bend  v.  Hoyt,  13  Pet.  263,  10  L.  ed.  1S4; 
Peck  V.  Jenneas,  7  How.  612,  623,  12  L.  ed. 
Ml,  845;  United  States  v.  Lexington  Mill  & 
Elevator  Co.  232  U.  S.  390,  409,  58  L.  ed. 
668,  661,  L..R.A.1916B,774,  34  Sup.  Ct.  Rep. 
337;  Lake  County  v.  Rolling,  130  U.  S.  682, 
670,  32  L.  ed.  1060,  1063,  9  Sup.  Ct.  Rep. 
651:  Hamilton  y.  Rathbone,  176  U.  S.  414, 
44  Lv  ed.  210,  20  Sup.  Ct.  Rep.  155;  Wash- 
ington Klarket  Co.  v.  Hoffman,  101  U.  S. 
112,  26  L.  ed.  782;  United  States  v.  Anti- 
kamnia  Chemical  Co.  231  U.  S.  654,  S65,  58 
L.  ed.  419,  424,  34  Sup.  a.  Rep.  222,  Ann. 
Cas.  191GA,  49;  Hall-Baker  Grain  Co.  t. 
United  States,  117  C.  C.  A.  318,  198  Fed. 
614. 

This  statute  was  not  to  prevent  the  man- 
ufacture and  sale  of  foods,  but  to  prevent 
the  adulteration  and  misbranding  thereof. 

Savage  v.  Jones,  225  U.  S.  501,  530,  66 
L.  ed.  1182,  1193,  32  Sup.  Ct.  Rep.  716; 
Standard  Stock  Food  Co.  v.  Wright,  226  U. 
S.  540,  es  L.  ed.  1197,  32  Sup.  Ct.  Rep. 
784;  United  States  v.  65  Casks  Liquid  Ex- 
tracts, 170  Fed.  449;  McDermott  v.  Wis- 
consin, 228  U.  S.  IIB,  57  L.  ed.  764,  47 
LJl.A.(N.S.)  984,  33  Sup.  Ct.  Rep.  431, 
Ann.  Cas.  1916A,  36;  United  States  v.  40 
Barrels  &  20  Kegs  of  Coca-Cola,  132  C.  C.  A. 
47.  215  Fed.  635. 

The  statute  contemplates  a  standard. 

Gmlcy,  Food  &  Drugs  Act,  pp.  8,  22; 
Wilson  Y.  Wilson,  88  J.  P.  175,  41  Scot.  L. 
R.  195;  Von  Bremen  v.  United  States,  113 
C.  C.  A.  296,  192  Fed.  905;  People  t.  Jen- 
nings, 332  Mich.  662.  94  K.  W.  216;  Nave- 
McCord  Mercantile  Co.  r.  United  States, 
101  C.  C.  A.  486,  182  Fed.  47;  United 
States  y.  St.  Louis  Coffee  ft  Spice  Mills, 
189  Fed.  193;  United  Statu  t.  Frank,  180 
eo  L-  ed. 


Fed.  195;  200  Chests  of  Tea,  0  Wheat.  431, 
6  L.  ed.  128;  Hudson  Mfg.  Co.  v.  United 
States,  113  C.  C.  A.  625,  192  Fed,  920; 
Libby,  McNeill  ft  Libby  v.  United  State*, 
127  C.  C.  A.  14,  210  Fed.  143;  United  State* 
V.  Sweet  Valley  Wine  Co.  208  Fed.  86; 
United  States  v.  7S  Boxes  of  Alleged  Pepper, 
198  Fed.  B34;  Weeks  v.  United  States,  139 
C.  C.  A.  626.  224  Fed.  64;  Cadwalader  », 
Zeh,  151  U.  S.  171,  38  L.  ed.  116,  14  Sup. 
Ct.  Rep.  288;  United  States  T.  420  Sacks 
of  Flour,  180  Fed.  618. 

The  evidence  conclusively  shows  what 
Coca  Cola  is, — that  it  contains,  and  has  al- 
ways contained,  caffeine.  Can  it,  then,  be 
contended  that  the  caffeine  Is  addedt 

Washburn  v.  United  States,  140  C.  C.  A. 
81,  224  Fed.  395. 

The  term  "added  ingredient"  means  some- 
thing foreign  to  the  article  to  which  it  is 
added;  and  therefore  an  ingredient  which  is 
a  constituent  element,  and  is  not  foreign,  is 
not  an  added  one. 

St.  Louis  T,  Judd,  236  Mo.  1,  139  8.  W. 
441 ;  Com.  v.  Kevin,  202  Pa.  23,  90  Am.  St. 
Rep.  613,  5]  Atl.  504;  Hall-Baker  Grain 
Co.  V.  United  States,  117  C.  C.  A.  318,  198 
Fed.  614;  United  States  v.  Lexington  Mill 
ft  Elevator  Co.  232  U.  S.  399,  58  L.  ed.  658, 
L.R.A.1015B,  774,  34  Sup.  Ct.  Rep.  337; 
Price  V.  Illinois,  238  U.  S.  446.  69  L.  ed. 
1400.  35  Sup.  Ct.  Rep.  892;  United  States 
V.  11,150  Pounds  of  Butter,  115  C,  C.  A. 
403,  105  Fed.  857.  See  also  Weeks  v.  United 
States.  139  C.  C.  A.  826,  224  Fed.  64;  Cur- 
tice Bros.  Co.  v,  Barnard,  126  C.  C.  A.  411, 
209  Fed.  591. 

If  the  presence  of  the  substance  would  not 
have  an  appreciable  effect,  then  its  elimi- 
nation would  not  opc.ate  at  au  appreciable 
change. 

People  T.  Jennings,  132  Mich.  663,  S4  K. 
W.  216. 

A  defendant  in  whose  favor  a  verdict  has 
been  rendered  by  direction  of  the  court  is 
entitled  to  support  such  verdict  upon  any 
ground  permitted  by  the  evidence  in  the 
record  of  which  he  has  not  by  hia  conduct 
waived  the  right  to  avail  himself. 

Whitney  v.  New  York,  N.  H.  *  H.  R.  Ca 
50  L.R.A.  616.  43  C.  C.  A.  19,  102  Fed.  850. 

When  a  defeated  party  has  been  permitted 
to  present,  end  has  introduced,  all  the  legal 
evidence  which  be  offered,  has  rested  hi* 
case,  and  the  court  has  instructed  the  jury 
to  return  a  verdict  against  him  upon  a 
specified  but  untenable  ground,  its  action 
is  error  without  prejudice,  and  will  not 
warrant  a  reversal  of  the  judgment,  where 
it  is  clear  beyond  doubt,  from  ■  bill  of 
exceptions  which  contains  all  the  evidcAee, 
that  it  would  not  sustain  any  other  verdict. 

Bank  of  Havelock  v.  Western  U.  Teleg. 
Co.  4  L.R.A.(N.S.)181,  72  C.  C.  A.  580. 


270 


SUPREME  OOUET  OF  THE  UNITED  STATES. 


OoT.  TkiM, 


141  Fed.  522,  5  Ann.  Caa.  615;  United 
SUtes  V.  Norton,  46  C.  C.  A.  387,  107  Fed. 
412;  Currier  t.  Dartmouth  College,  54  C.  C. 
A.  430,  117  Fed.  44;  38  Cyc.  1502;  W.  B. 
Grimes  Dry  Goods  Co.  v.  Malcolm,  164  U. 
S.  483,  41  L.  ed.  524,  17  Sup.  Ct.  Rep.  158 ; 
Sullivan  t.  Iron  Silver  Min.  Co.  143  U.  S. 
431,  36  L.  ed.  214, 12  Sup.  Ct.  Rep.  555. 

A  trademark  can  be  distinctive  in  its  orig- 
inal signification,  or  it  may  have  become  so 
by  association. 

Delaware  &  H.  Canal  Co.  v.  Clark,  13 
Wall.  311,  323,  20  L.  ed.  681,  583;  Amos- 
keag  V.  Trainer,  101  U.  S.  51,  25  L.  ed. 
903;  Lawrence  Mfg.  Co.  v.  Tennessee,  138 
U.  S.  537,  34  L.  ed.  997,  11  Sup.  Ct.  Rep. 
396;  United  States  v.  Steffens,  100  U.  S. 
82,  25   L.  ed.   550. 

Words  in  common  use,  with  some  excep- 
tions, may  be  adopted,  if,  at  the  time  of 
their  adoption,  they  were  not  employed  to 
designate  the  same  or  like  articles  of  pro- 
duction. This  may,  in  many  cases,  be  done 
by  a  name,  a  mark,  or  a  device,  well  known, 
but  not  previously  applied  to  the  same 
article. 

Delaware  &  H.  Canal  Co.  t.  Clark,  13 
Wall.  322,  20  L.  ed.  583;  Amoskeag  Mfg. 
Co.  V.  Trainer,  101  U.  S.  51,  25  L.  ed.  993; 
United  States  v.  Steffens,  100  U.  S.  82,  25 
L.  ed.  550. 

It  is  possible  to  devest  a  geographical, 
descriptive  term  or  symbol  of  its  original 
signification. 

ReTolle  (1872)  CD.  219. 

Where  a  name  has  a  well-defined,  arbi- 
trary meaning,  it  should  not  be  refused 
r^istration  because  it  appears  in  diction- 
aries. 

Ex  parte  Van  Eyck  (1903)  C.  D.  43. 

Does  the  tradename  overshadow  the  geo- 
graphical f 

Ex  parte  Indiana  Bicycle  Co.  (1895)  0. 
D.  66. 

If  the  primary  meaning  has  been  tran- 
scended by  the  secondary  meaning,  it  is  a 
distinctive  name. 

Ex  parte  Jewell  Bottling  Co.  (1904)  C. 
D.  160;  Siegert  v.  Gandolfi, -79  C.  C.  A. 
142,  149  Fed.  100. 

If  a  name  has  acquired  a  secondary  mean- 
ing, it  has  become  distinctive. 

Jacobs  ▼.  Beecham,  221  U.  S.  263,  55  L. 
ed.  729,  31  Sup.  Ct.  Rep.  556;  Elgin  Nat. 
Watch  Co.  V.  Illinois  Watch  Case  Co.  179 
U.  S.  665,  46  L.  ed.  365,  21  Sup.  Ct.  Rep. 
270;  French  Republic  v.  Saratoga  Vichy 
Spring  Co.  191  U.  S.  427,  48  L.  ed.  247,  24 
Sup.  Ct.  Rep.  145;  Baglin  v.  Cusenier  Co. 
221  U.  S.  580,  66  L.  ed.  863,  31  Sup.  Ct. 
Re^.  669;  Montgomery  v.  Thompson,  8  Rep. 
Pat.  Cas.  361;  Wotherspoon  v.  Currie,  L. 
R.  5  H.  L.  608,  42  L.  J.  Ch.  N.  S.  130,  27 
Ix  T.  N.  S.  393;  Birmingham  Vinegar  Co.' 
008 


I  v.  PoweU  [1897]  A.  C.  710,  76  L.  T.  N.  a 
792,  66  L.  J.  Ch.  N.  S.  763;  Reddaway  y. 
Banham,  12  Rep.  Pat.  Cas.  83,  18  Rep.  Pat 
Cas.  218,  [1896]  A.  C.  199,  66  L.  J.  Q.  B. 
N.  S.  381,  44  Week.  Rep.  638,  74  Lu  T.  N.  8. 
289;  Thaddeus  Davids  Co.  v.  Davids  Mfg. 
Co.  233  U.  S.  461,  466,  58  L.  ed.  1046,  1049, 
34  Sup.  Ct.  Rep.  648,  Ann.  Cas.  1915B, 
322. 

Use  musty  of  necessity,  make  a  m&rk  dis- 
tinctive. 

Re  Crosfleld  &  Sons,  26  Rep.  Pat.  Cas. 
846,  [1910]  1  Ch.  130,  79  L.  J.  Ch.  N.  S.  212, 
101  L.  T.  N.  S.  587,  26  Times  L.  R.  100,  54 
Sol.  Jo.  100;  Re  Registered  Trademarkif 
Nos.  638,  1807  &  158,  839,  82  Rep.  Pat.  Cas. 
40,  [1914]  W.  N.  461,  31  Times  L.  R.  62,  69 
Sol.  Jo.  128;  Re  Slazengers,  81  Rep.  Pat 
Cas.  501;  Re  Cadbury  Bros.  32  Rep.  Pat 
Cas.  9,  [1915]  1  Ch.  331,  84  L.  J.  Ch.  N.  S. 
242,  112  L.  T.  N.  S.  235,  [1914]  W.  N.  463; 
Re  Bema  Commercial  Motors,  32  Rep. 
Pat  Cas.  113,  [1916]  1  Ch.  414,  84 
L.  J.  Ch.  N  S.  416,  112  L.  T.  N.  S 
980,  [1916]  W.  N.  36,  59  Sol.  Jo.  316; 
Woodward  v.  Boulton  Macro,  32  Rep.  Pat 
Cas.  173,  112  L.  T.  N.  S.  1112,  [1915]  W. 
N.  124,  31  Times  Lu  R.  269;  United  SUtes 
V.  30  Cases,  199  Fed.  932;  United  States  v. 
100  Barrels  of  Calcium  Phosphate  (D.  C. 
N.  D.  Cal.) ;  United  States  v.  Von  Bremen 
(D.  C.  S.  D.  N.  Y.) ;  Lemy  v.  WaUon,  32 
Rep.  Pat  Cas.  608,  [1916]  3  K.  B.  731,  84 
L.  J.  K.  B.  N.  S.  1999,  13  L.  G.  R.  1323,  31 
Times  L.  R.  612;  Fowler  Vi  Cripps  [1906]  1 
K.  B.  21,  75  L.  J.  K.  B.  N.  S.  72,  70  J.  P. 
21,  64  Week.  Rep.  299,  93  U  T.  N.  S.  808, 
22  Times  L.  R.  73;  Rex  v.  Butcher,  99  L. 
T.  N.  &  622,  72  J.  P.  454,  24.  Times  L.  R. 
797,  52  Sol.  Jo.  716,  21  Cox,  C.  C.  697. 

The .  name  is  necessarily  distinctive  be- 
cause it  is  not,  and  never  has  been,  applied 
to  anything  except  this  product,  and  no  one 
has  the  right  to  apply  it  to  anything  else. 

Keasbey  v.  Brooklyn  Chemical  Works, 
142  N.  Y.  467,  40  Am.  St.  Rep.  623,  37  14. 
£.  476;  Camrick,  K.  ft  Co.  v.  Morson  (1877) 
Law  Journal  Notes  on  Cases,  p.  71;  Re  La 
Societe  Le  Ferment,  81  L.  J.  Ch.  N.  S.  724, 
[1912]  W.  N.  187,  107  L.  T.  N.  S.  515,  28 
Times  L.  R.  490,  29  Rep.  Pat.  Caa.  497,  29 
Rep.  Pat  Cas.  149,  28  Times  L.  R.  176. 

Coco  Cola  is  not  sold  under  the  distinctive 
name  of  another  article. 

Nashville  Syrup  Co.  v.  Coca  Cola  Co.  132 
C.  C.  A.  39,  216  Fed.  627,  Ann.  Cas.  1915B, 
368;  (Ik>ca-Cola  Ck>.  v.  American  Druggists' 
Syndicate,  200  Fed.  107. 

Mr.  Justice  Hughes  delivered  the  opin- 
ion of  the  court: 

This  is  a  libel  for  condemnation  under 
the  food  and  drugs  act  (June  30,  1906,  chap. 
3915,  34  SUt  at  L.  768,  Comp.  Stat  1913, 

S41  V.  S. 


1015. 


UNITED  STATES  ▼.  FOBTY  BARBELa 


270-273 


I  8717),  of  a  certain  quantity  of  a  food 
product  known  as  "Coca  Ck>la"  transported 
for  sale,  from  Atlanta,  Georgia,  to  Chat- 
tanooga, Tennessee.  It  was  alleged  that  the 
product  was  adulterated  and  misbranded. 
The  allegation  of  adulteration  was,  in  sub- 
stance, tJiat  the  product  contained  an  added 
poisonous  or  added  deleterious  ingredient, 
caffeine,  [271]  which  might  render  the 
product  injurious  to  health.  It  was  alleged 
to  be  misbranded  in  that  the  name  "Coca 
Cola"  was  a  representation  of  the  presence 
of  the  substances  coca  and  cola;  that  the 
product  "contained  no  coca  and  little  if  any 
cola"  and  thus  was  an  "imitation"  of  these 
substances  and  was  offered  for  sale  under 
their  "distinctive  name."  We  omii  other 
charges  which  the  government  subsequently 
withdrew.  The  claimant  answered,  admit- 
ting that  the  product  contained  as  one  of  its 
ingredients  "a  small  portion  of  caffeine,"  but 
denying  that  it  was  either  an  "added"  in- 
gredient, or  a  poisonous  or  a  deleterious 
ingredient  which  might  make  the  product 
injurious.  It  was  also  denied  that  there 
were  substances  known  as  coca  and  cola- 
sunder  their  own  distinctive  names,"  and  it 
was  averred  that  the  product  did  contain 
"certain  elements  or  substances  derived 
from  coca  leaves  and  cola  nuts."  The  an- 
swer also  set  forth,  in  substance,  that 
''Coca  Cola"  was  the  "distinctive  name"  of 
the  product  under  which  it  had  been  known 
and  sold  for  more  than  twenty  years  as  an 
article  of  food,  with  other  averments  nega- 
tiving adulteration  and  misbranding  under 
the  provisions  of  the  act. 

Jury  trial  was  demanded,  and  voluminous 
testimony  was  taken.  The  district  judge 
directed  a  verdict  for  the  claimant  (191 
Fed.  431),  and  judgment  entered  according- 
ly was  affirmed  on  writ  of  error  by  the  cir- 
cuit court  of  appeals  (132  C.  C.  A.  47,  215 
Fed.  535 ) .  And  the  government  now  prose- 
Btttes  this  writ. 

First.  As  to  "ctdulteration,**  The  claim- 
int,  in  its  summary  of  the  testimony,  states 
that  the  article  in  question  "is  a  syrup 
manufactured  by  the  claimant  .  .  .  and 
lold  and  used  as  a  base  for  soft  drinks 
both  at  soda  fountains  and  in  bottles.  The 
svidence  shows  that  the  article  contains 
ragar,  water,  caffeine,  glycerine,  lime  juice, 
ind  other  flavoring  matters.  As  used  by  the 
•onsumer,  about  1  ounce  of  this  syrup  is 
^en  in  a  glass  mixed  with  [272]  about  7 
>Qnce8  of  carbonated  water,  so  that  the 
Mmsumer  gets  in  an  8-ounce  glass  or  bottle 
>f  the  beverage,  about  1.21  grains  of  caf- 
feine." It  is  said  that  in  the  year  1886 
%  pharmacist  in  Atlanta  "compounded  a 
^rup  by  a  secret  formula,  which  he  called 
Coca-Cola  Syrup  and  Extract;'"  that  the 
sUimant  acquired  "the  lormulay  namey 
•O  li.  ed. 


label,  and  good  will  for  the  product"  in 
1892,  and  then  registered  "a  trademark 
for  the  syrup  consisting  of  the  name  Coca 
Cola,"  and  has  since  manufactured  and  sold 
the  syrup  under  that  name.  The  proportion 
!  of  caffeine  was  slightly  diminished  in  the 
preparation  of  the  article  for  bottling  pur- 
poses. The  claimant  again  roistered  the 
name  "Coco  Cola"  as  a  trademark  in  1905, 
averring  that  the  mark  had  been  "in  actual 
use  as  a  trademark  of  the  applicant  for 
more  than  ten  years  next  preceding  the  pas- 
sage of  the  act  of  February  20,  1905,"  and 
that  it  was  believed  such  use  had  been  ex- 
clusive. It  is  further  stated  that,  in  manu- 
facturing in  accordance  with  the  formula, 
"certam  extracts  from  the  leaves  of  the  coca 
shrub  and  the  nut  kernels  of  the  cola  tree 
were  used  for  the  purpose  of  obtaining  a 
flavor,"  and  that  "the  ingredient  contain- 
ing these  extracts,"  with  cocaine  eliminated, 
is  designated  as  "Merchandise  No.  5."  It 
appears  that  in  the  manufacturing  process 
water  and  sugar  are  boiled  to  make  a  syrup ; 
there  are  four  meltings;  in  tl^e  second  or 
third  the  caffeine  is  put  in;  after  the  melt- 
ings the  syrup  is  conveyed  to  a  cooling  tank 
and  then  to  a  mixing  tank,  where  the  other 
ingredients  are  introduced  and  the  flnal 
combination  is  effected;  and  from  the  mix- 
ing tank  the  flnished  product  is  drawn  off 
into  barrels  for  shipment. 

The  questions  with  respect  to  the  charge 
of  "adulteration"  are  (1)  whether  the  caf« 
feine  in  the  article  was  an  added  ingredient 
within  the  meaning  of  the  act  (§  7,  subdiy. 
5th),  and,  if  so,  (2)  whether  it  was  a  poi- 
sonous or  deleterious  ingredient  which  mif^ht 
render  the  article  injurious  to  health.  The 
decisive  ruling  in  the  courts  below  resulted 
[273]  from  a  negative  answer  to  the  flrst 
question.  Both  the  district  judge  and  the 
circuit  court  of  appeals  assumed  for  the  pur- 
pose of  the  decision  that  as  to  the  second 
question  there  was  a  conflict  of  evidence 
which  would  require  its  submission  to  the 
jury.  (191  Fed.  433,  132  C.  C.  A.  47,  215 
Fed.  540.)  But  it  was  concluded,  as  the 
claimant  contended,  that  the  caffeine — even 
if  it  could  be  found  by  the  jury  to  have  the 
alleged  effect — could  not  be  deemed  to  be 
an  "added  ingredient"  for  the  reason  that 
the  article  was  a  compound,  known  and 
sold  under  its  own  distinctive  name,  of 
which  the  caffeine  was  a  usual  and  normal 
constituent.  The  government  challenges 
this  ruling  and  the  construction  of  the  stat- 
ute upon  which  it  depends ;  and  the  extreme 
importance  of  the  question  thus  presented 
with  respect  to  the  application  of  the  act 
to  articles  of  food  sold  under  tradenames  is 
at  once  apparent.  The  government  insists 
that  the  fact  that  a  formula  has  been  made 
up  and  followed  and  a  diatinfiAi'^  ^dmsl^ 


273-276 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cor.  TfeuCy 


adopted  does  not  sui&ce  to  take  an  article 
from  the  reach  of  the  statute;  that  the 
standard  hj  which  the  combination  in  such 
a  case  is  to  be  judged  is  not  necessarily  the 
combination  itself ;  that  a  poisonous  or  dele- 
terious ingredient  with  the  stated  injurious 
effect  may  still  be  an  added  ingredient  in 
the  statutory  sense,  although  it  is  covered 
by  the  formula  and  made  a  constituent  of 
the  article  sold. 

The  term  *'food,"  as  used  in  the  statute, 
includes  '*all  articles  used  for  food,  drink, 
confectionery,  or  condiment  .  .  .  whether 
simple,  mixed,  or  compound"  (§6).  An 
article  of  "food"  is  to  be  deemed  to  be  "adul- 
terated" if  it  contain  "any  added  poison- 
ous or  other  added  deleterious  ingredient 
which  may  render  such  article  injurious  to 
health."  (§  7,  subdiv.  6th  i).  With  this 
[274]  section  is  to  be  read  the  proviso  in  § 
8,  to  the  effect  that  "an  article  of  food  which 
does  not  contain  any  added  poisonous  or 
deleterious  ingredients  shall  not  be  deemed 
to  be  adulterated  or  misbranded"  in  the 
case  of  ''mixtures  or  compounds  which  may 
be  now  or  from  time  to  time  hereafter 
known  as  articles  of  food,  under  their  own 
distinctive  names,"  if  the  distinctive  name 
of  another  article  is  not  used  or  imitated, 
and  the  name  on  the  label  or  brand  is  ac- 
companied with  a  statement  of  the  place  of 
production.  And  §  8  concludes  with  a 
further  proviso  that  nothing  in  the  act  shall 
be  construed  "as  requiring  or  compelling 
proprietors  or  manufacturers  of  proprietary 
foods  which  [276]  contain  no  unwholesome 


added  ingredient  to  disclose  their  trade 
formulas,  except  in  so  far  as  the  proYiaioiia 
of  this  act  may  require  to  secure  freedom 
from  adulteration  or  misbranding.*^ 

[276]  In  support  of  the  ruling  below,  em- 
phasis is  placed  upon  the  general  purpoee  of 
the  act,  which,  it  is  said,  was  to  prerent  de- 
ception, rather  than  to  protect  the  public 
health  by  prohibiting  traffic  in  articles  which 
might  be  determined  to  be  deleterious.  But 
a  description  of  the  purpose  of  the  statute 
would  be  inadequate  which  failed  to  take  ac- 
count of  the  design  to  protect  the  public 
from  lurking  dangers  caused  by  the  intro- 
duction of  harmful  ingredients,  or  which  as- 
sumed that  this  end  was  sought  to  be 
achieved  by  simply  requiring  certain  disclos- 
ures. The  statute  is  entitled,  "An  Act  for 
Preventing  the  Manufacture,  Sale,  or  Trans- 
portation of  Adulterated  or  Misbranded  or 
Poisonous  or  Deleterious  Foods,  Drugs, 
Medicines,  and  Liquors,"  etc.  In  the 
case  of  confectionery,  we  find  that  is  is 
to  be  deemed  to  be  adulterated  if  it  con- 
tains certain  specified  substances  "or  oth- 
er ingredient  deleterious  or  detrimental 
to  health."  So,  under  §  7,  subdivision 
6th,  there  may  be  adulteration  of  food 
in  case  the  article  consists  in  whole  or 
in  part  of  "any  portion  of  an  animal 
unfit  for  food,  whether  manufactured  or 
not,  or  if  it  is  the  product  of  a  diseased 
animal,  or  one  that  has  died  otherwise  than 
by  slaughter."  In  United  States  v.  Lexing- 
ton Mill  &  Elevator  Co.  232  U.  S.  399,  409, 
58   L.   ed.   658,  661,   L.R.A.1915B,   774,  34 


1  Section  7,  with  respect  to  "confection- 
ery" and  'food"  is  as  follows: 

"Sec.  7.  That  for  the  purposes  of  this  act 
an  article  shall  be  deemed  to  be  adulter- 
ated: 

•         •         • 

"In  the  case  of  confectionery : 

"If  it  contains  terra  alba,  barytes,  talc, 
chrome  yellow,  or  other  mineral  substance 
or  poisonous  color  or  flavor,  or  other  in- 
gredient deleterious  or  detrimental  to 
health,  or  any  vinous,  malt,  or  spirituous 
liquor  or  compound  or  narcotic  drug. 

"In  the  case  of  food: 

"First.  If  any  substance  has  been  mixed 
and  packed  with  it  so  as  to  reduce  or  lower 
or  injuriously  affect  its  quality  or  strength. 

"Second.  If  any  substance  has  been  sub- 
stituted wholly  or  in  part  for  the  article. 

"Third.  If  any  valuable  constituent  of  the 
article  has  been  wholly  or  in  part  ab- 
stracted. 

"Fourth.  If  it  be  mixed,  colored,  pow- 
dered, coated,  or  stained  in  a  manner  where- 
by damage  or  inferiority  is  concealed. 

"Fifth.  If  it  contain  any  added  poisonous 
or  other  added  deleterious  in^^edient  which 
may  render  such  article  injurious  to  health : 
Provided,  That  when  in  the  preparation  of 
food  products  for  shipment  they  are  pre- 
served by  any  external  application  applied 
1000 


in  such  manner  that  the  preservative  is 
necessarily  removed  mechanically,'  or  bv 
maceration  in  water,  or  otherwise,  and  di- 
rections for  the  removal  of  said  preserrative 
shall  be  printed  on  the  covering  or  the  pack- 
age, the  provisions  of  this  act  shall  be  ecm- 
strued  as  applying  only  when  said  products 
are  ready  for  consumption. 

"Sixth.  If  it  consists  in  whole  or  in  part 
of  a  filthy,  decomposed,  or  putrid  animal  or 
vegetable  substance,  or  any  portion  of  an 
animal  unfit  for  food,  whether  manufac- 
tured or  not,  or  if  it  is  the  product  of  a 
diseased  animal,  or  one  that  has  died  other- 
wise than  by  slaughter." 

>  Section  8  provides: 

"Sec.  8.  That  the  term  'misbranded,'  u 
used  herein,  shall  apply  to  all  drugs,  or 
articles  of  food,  or  articles  which  enter  into 
the  composition  of  food,  the  package  or 
label  of  which  shall  bear  any  statement, 
design,  or  device  regarding  sudi  article,  or 
the  ingredients  or  substances  contained 
therein  which  shall  be  false  or  misleading 
in  any  particular,     .     .     . 

"That  for  the  purposes  of  this  act  sa 
article  shall  also  be  deemed  to  be  mil- 
branded: 

"In  the  case  of  food: 
"First  If  it  be  an  imitation  «f  or  offered 

S4i  V.  s. 


1915. 


UNITED  STATES  y.  FORTY  BABBBL& 


276-278 


Sup.  Ct.  Rep.  337,  it  was  said  that  "the 
statute  upon  its  face  shows  that  the  pri- 
mary purpose  of  Congress  was  to  prevent  in- 
jury to  the  public  health  by  the  sale  and 
transportation  [277]  in  interstate  com- 
merce of  misbranded  and  adulterated  foods. 
The  legislation,  as  against  misbranding,  in- 
tended to  make  it  possible  that  the  consumer 
should  know  that  an  article  purchased  was 
what  it  purported  to  be;  that  it  might  be 
bought  for  what  it  really  was,  and  not  up- 
on misrepresentations  as  to  character  and 
quality.  As  against  adulteration,  the  stat- 
ute was  intended  to  protect  the  public  health 
from  possible  injury  by  adding  to  articles 
of  food  consumption  poisonous  and  deleteri- 
ous substances  which  might  render  such 
articles  injurious  to  the  health  of  consum- 
ers." See  also  United  States  v.  Antikamnia 
Co.  231  U.  S.  654,  665,  58  L.  ed.  419,  424, 
34  Sup.  Ct.  Rep.  222,  Ann.  Cas.  1915A,  49; 
H.  R.  Report,  No.  2118,  59th  Cong.,  1st 
Sess.,  6-9.  It  is  true  that  in  executing 
these  purposes  Congress  has  limited  its  pro- 
hibitions (Savage  v.  Jones,  225  U.  S.  501, 
529,  532,  56  L.  ed.  1182,  1193,  1194,  32  Sup. 
Ct.  Rep.  715),  and  has  specifically  defined 
what  shall  constitute  adulteration  or  mis- 
branding; but,  in  determining  the  scope  of 
specific  provisions,  the  purpose  to  protect 
the  public  health,  as  an  important  aim  of 
the  statute,  must  not  be  ignored. 

Reading  the  provisions  here  in  question 
in  the  light  of  the  context,  we  observe: 

(a)  That  the  term  "adulteration"  is  used 
in  a  special  sense.    For  example,  the  prod- 


uct of  a  diseased  animal  may  not  be  adul- 
terated in  the  ordinary  or  strict  meaning 
of  the  word,  but  by  reason  of  its  being  that 
product  tue  article  is  adulterated  within 
the  meaning  of  the  act.  The  statute  with 
respect  to  "adulteration"  and  "misbrand- 
ing" has  its  own  glossary.  We  cannot^ 
therefore,  assume  that  simply  because  a  pre- 
pared "food"  has  its  formula  and  distinc- 
tive name,  it  is  not,  as  such,  "adulterated.'^ 
In  the  case  of  confectionery,  it  is  plain  that 
the  article  may  be  "adulterated"  although  it 
is  made  in  strict  accordance  with  some 
formula  and  bears  a  fanciful  tradename,  if 
in  fact  it  contains  an  "ingredient  deleteri- 
ous or  detrimental  to  health,  or  any  vinous, 
malt,  or  spirituous  liquor  or  compound  or 
narcotic  drug."  And  the  context  clearly  in- 
dicates that,  [278]  with  respect  to  articles 
of  food,  the  ordinary  meaning  of  "adultera- 
tion" cannot  be  regarded  as  controlling. 

(b)  The  provision  in  §  7,  subdivision  5th, 
assumes  that  the  substance  which  renders 
the  article  injurious,  and  the  introduction 
of  which  causes  "adulteration,"  is  an  in- 
gredient of  the  article.  It  must  be  an  "add- 
ed" ingredient;  but  it  is  still  an  ingredient. 
Component  parts,  or  constituents,  of  the 
article  which  is  the  subject  of  the  described 
traffic,  are  thus  not  excluded,  but  are  in- 
cluded in  the  definition.  The  article  re- 
ferred to  in  subdivision  5th  is  the  article 
sought  to  be  made  an  article  of  commerce, 
— the  article  which  "contains"  the  ingre- 
dient. 

(c)  "Adulteration"  is  not  to  be  confused 


for  sale  under  the  distinctive  name  of  an- 
other article. 

"Second.  If  it  be  labeled  or  branded  so 
as  to  deceive  or  mislead  the  purchaser,  or 
purport  to  be  a  foreign  product  wben  not 
so,  or  if  the  contents  of  the  package  as 
originally  put  up  shall  have  been  removed 
in  whole  or  in  part  and  other  contents  shall 
have  been  placed  in  such  package,  or  if  it 
fail  to  bear  a  statement  on  the  label  of  the 
quantity  or  proportion  of  any  morphine, 
opium,  cocaine,  heroin,  alpha  or  beta 
eucaine,  chloroform,  cannabis  indica,  chloral 
hydrate,  or  acetanilide,  or  any  derivative  or 
preparation  of  any  of  such  substances  con- 
tained therein. 

"Third.  If  in  package  form,  and  the  con- 
tents are  stated  in  terms  of  weight  or  meas- 
ure, they  are  not  plainly  and  correctly 
stated  on  the  outside  of  the  package. 

"Fourth.  If  the  package  containing  it 
or  its  label  shall  bear  any  statement,  de- 
sign, or  device  regarding  the  ingredients  or 
the  substances  contained  therein,  which 
statement,  design,  or  device  shall  be  false 
or  misleadinjg  in  any  particular:  Provided, 
That  an  article  of  food  which  does  not  con- 
tain any  added  poisonous  or  deleterious  in- 
gredients shall  not  be  deemed  to  be  adul- 
terated or  misbranded  in  the  following 
cases: 
•0  I/,  ed. 


"First.  In  the  case  of  mixtures  or  com- 
pounds which  may  be  now  or  from  time  to 
time  hereafter  known  as  articles  of  food, 
under  their  own  distinctive  names,  and  not 
an  imitation  of  or  offered  for  sale  under  the 
distinctive  name  of  another  article,  if  the 
name  be  accompanied  on  the  same  label  or 
brand  with  a  statement  of  the  place  where 
said  article  has  been  manufactured  or  pro- 
duced. 

"Second.  In  the  case  of  articles  labeRd, 
branded,  or  tagged  so  as  to  plainly  indicate 
that  they  are  compounds,  imitations,  or 
blends,  and  the  word  'compound,'  'imita- 
tion,' or  'blend,'  as  the  case  may  be,  is 
plainly  stated  on  the  package  in  which  it 
is  offered  for  sale:  Provided,  That  the  term 
blend  as  used  herein  shall  be  construed  to 
mean  a  mixture  of  like  substances,  not  ex- 
cluding harmless  coloring  or  flavoring  in- 
gredients used  for  the  purpose  of  coloring 
and  flavoring  only:  And  provided  further, 
Tliat  nothing  in  this  act  shall  be  construed 
as  requiring  or  compelling  proprietors  or 
manufacturers  of  proprietary  foods  which 
contain  no  unwholesome  added  ingredient 
to  disclose  their  trade  formulas,  except  in 
so  far  as  the  provisions  of  this  act  may  re- 
quire to  secure  freedom  from  adulteration 
or  misbranding." 

loot 


278-281 


SUPBEME  OOUET  OF  THE  UNITED  STATES. 


OOT.  IkBM, 


with  "misbranding."  The  fact  that  the  pro- 
visions as  to  the  latter  require  a  sta^ment 
of  certain  substances  if  contained  in  an  arti- 
cle of  food,  in  order  to  avoid  ''misbranding/' 
does  not  limit  the  explicit  provisions  of  §  7 
as  to  adulteration.  Both  provisions  are 
operative.  Had  it  been  the  intention  of  Ck)n- 
gress  to  confine  its  definition  of  adulteration 
to  the  introduction  of  the  particular  sub- 
stances specified  in  the  section  as  to  mis- 
branding, it  cannot  be  doubted  that  this 
would  have  been  stated,  but  Congress  gave 
a  broader  description  of  ingredients  in  de- 
fining "adulteration."  It  is  "any"  added 
poisonous  or  "other  added  deleterious  In- 
gredient," provided  it  "may  render  such 
article  injurious  to  health." 

(d)  Proprietary  foods,  sold  under  dis- 
tinctive names,  are  within  the  purview  of 
the  provision.  Not  only  is  "food"  defined  as 
including  articles  used  for  food  or  drink, 
"whether  simple,  mixed,  or  compound,"  but 
the  intention  to  include  "proprietary  foods" 
sold  under  distinctive  names  is  manifest 
from  the  provisos  in  §  8  which  the  claim- 
ant invokes.  "Mixtures  or  compounds" 
which  satisfy  the  first  paragraph  of  the 
proviso  are  not  only  "articles  of  food,"  but 
are  to  enjoy  the  stated  immunity  only  in 
case  they  do  "not  contain  any  added  poison- 
ous or  deleterious  [270]  ingredients."  By 
the  concluding  clause  of  §  8,  it  is  provided 
that  nothing  in  the  act  shall  be  construed  to 
require  manufacturers  of  "proprietary 
foods"  to  disclose  "their  trade  formulas" 
except  in  so  far  as  the  provisions  of  the 
act  "may  require  to  secure  freedom  from 
adulteration  or  misbranding;"  and  the  im- 
munity is  conditioned  upon  the  fact  that 
such  foods  "contain  no  unwholesome  added 
ingredient."  Thus  the  statute  contemplates 
that  mixtures  or  compounds  manufactured 
by  those  having  trade  formulas,  and  bear- 
ing distinctive  names,  may  nevertheless  con- 
tain "added  ingredients"  which  are  poison- 
ous or  deleterious  and  may  make  the  article 
injurious,  and,  if  so,  the  article  is  not  taken 
out  of  the  condemnation  of  §  7,  subdiv.  5th. 

(e)  Again,  articles  of  food,  including 
"proprietary  foods"  which  fall  within  this 
condemnation,  are  not  saved  because  they 
were  already  on  the  market  when  the  stat- 
ute was  passed.  The  act  makes  no  such 
distinction;  and  it  is  to  be  observed  that 
the  proviso  of  §  8*  explicitly  refers  to  "mix- 
tures or  compounds  which  may  be  now  or 
from  time  to  time  hereafter  known  as  arti- 
cles of  food."  Nor  does  the  length  of  the 
period  covered  by  the  traffic,  or  its  extent, 
affect  the  question  if  the  article  is  in  fact 
adulterated  within  the  meaning  of  the  act. 

Having  these  considerations  in  mind  we 
deem  it  to  be  clear  that,  whatever  difficulties 
there  may  be  in  construing  the  provision, 

looa 


the  claimant's  argument  proves  far  too 
much.  We  are  not  now  Haaitng  with  the 
question  whether  the  caffeine  did,  or  mighty 
render  the  article  in  question  injurious; 
that  is  a  separate  inquiry.  The  fundamen- 
tal contention  of  the  claimant,  as  we  liavt 
seen,  is  that  a  constituent  of  a  food  prod- 
uct having  a  distinctive  name  cannot  be 
an  "added"  ingredient.  In  such  case,  the 
standard  is  said  to  be  the  food  product  it- 
self which  the  name  designates.  It  must 
be,  it  is  urged,  this  "finished  product"  that 
is  "adulterated."  In  that  view,  there  would 
[280]  seem  to  be  no  escape  from  the  oondn- 
sion  that,  however  poisonous  or  deleterious 
the  introduced  ingredient  might  be,  and  how- 
ever injurious  its  effect,  if  it  be  made  a 
constituent  of  a  product  having  its  own 
distinctive  name  it  is  not  within  the  provi- 
sion. If  this  were  so,  the  statute  would  be 
reduced  to  an  absurdity.  Manufacturers 
would  be  free,  for  example,  to  put  arsenic 
or  strychnine  or  other  poisonous  or  deleteri*. 
ous  ingredients  with  an  unquestioned  in- 
jurious effect  into  compound  articles  of 
food,  provided  the  compound  were  made  ao* 
cording  to  formula  and  sold  under  some 
fanciful  name  which  would  be  distinctive. 
When  challenged  upon  the  ground  that  the 
poison  was  an  "added"  ingredient,  the  an- 
swer would  be  that  without  it  the  so-called 
food  product  would  not  be  the  product  de- 
scribed by  the  name.  Further,  if  an  article 
purporting  to  be  an  ordinary  food  product, 
sold  under  its  ordinary  name,  were  con- 
demned because  of  some  added  deleterious 
ingredient,  it  would  be  difficult  to  see  why 
the  same  result  could  not  be  attained  with 
impunity  by  composing  a  formula  and  giving 
a  distinctive  name  to  the  article  with  the 
criticized  substance  as  a  component  part 
We  think  that  an  analysis  of  the  statute 
shows  such  a  construction 'of  the  provision 
to  be  inadmissible.  Certain  incongruities 
may  follow  from  any  definition  of  the  word 
"added,"  but  we  cannot  conclude  that  it 
was  the  intention  of  Congress  to  afford  im- 
munity by  the  simple  choice  of  a  formula 
and  a  name.  It  does  not  seem  to  us  to  be 
a  reasonable  construction  that  in  the  case 
of  "proprietary  foods"  manufactured  under 
secret  formulas  Congress  was  simply  con- 
cerned with  additions  to  what  such  formulss 
might  embrace.  Undoubtedly,  it  was  not 
desired  needlessly  to  embarrass  manufa^ 
turers  of  "proprietary  foods"  sold  under  dii- 
tinctive  names,  but  it  was  not  the  purposi 
of  the  act  to  protect  articles  of  this  sort 
regardless  of  their  character.  Only  such 
food  products  as  contain  "no  unwholesome 
added  ingredient"  are  within  the  saving 
clause,  and  [281]  in  using  the  words  quoted 
we  are  satisfied  that  Congress  did  not  make 
the  proprietary  article  its  own  standard. 

141  V.  B. 


1915. 


UNITED  6TATB8  y.  FORTY  BARRELS. 


281-283 


Equally  extreme  and  inadmissible  is  the 
suggestion  that  where  a  "proprietary  food" 
would  not  be'the  same  without  the  harmful 
ingredient,  to  eliminate  the  latter  would 
constitute  an  "adulteration"  under  §  7,  sub- 
division 3d,  by  the  abstraction  of  a  "valu- 
able constituent."  In  that  subdivision  Con- 
gress evidently  refers  to  articles  of  food 
which  normally  arc  not  within  the  condem- 
nation of  the  act.  Congress  certainly  did 
not  intend  that  a  poisonous  or  deleterious 
ingredient  which  made  a  proprietary  food 
an  enemy  to  the  public  health  should  be 
treated  as  a  "valuable  constituent,"  or  to 
induce  the  continued  use  of  such  injurious 
ingredients  by  making  their  elimination  an 
adulteration,  subject  to  the  penalties  of  the 
statute. 

It  is  apparent,  however,  that  Congress,  in 
using  the  word  "added,"  had  some  distinc- 
tion in  view.  In  the  Senate  bill  (for  which 
the  measure  as  adopted  was  a  substitute) 
there  was  a  separate  clause  relating  to 
''liquors,"  providing  that  the  article  should 
be  deemed  to  be  adulterated  if  it  contained 
"any  added  ingredient  of  a  poisonous  or 
deleterious  character;"  while  in  the  case  of 
food  (which  was  defined  as  excluding  li- 
quors) the  article  was  to  be  deemed  to  be 
"adulterated"  if  it  contained  "any  added 
poisonous  or  other  ingredient  which  may 
render  such  article  injurious  to  human 
health."  Cong.  Rec.,  59th  Cong.,  1st  Sess. 
vol.  40,  p.  897.  In  explaining  the  provision 
as  to  "liquors,"  Senator  Heyburn,  the  chair- 
man of  the  Senate  committee  having  the 
bill  in  charge,  stated  to  the  Senate  (Id.,  p. 
2647 ) :  "The  word  'added,'  after  very  ma- 
ture consideration  by  your  committee,  was 
adopted  because  of  the  fact  that  there  is 
to  be  found  in  nature's  products  as  she  pro- 
duces them,  poisonous  substances  to  be 
determined  by  analysis.  Nature  has  so  com- 
bined them  that  they  are  not  a  danger  or 
an  evil, — ^that  is,  so  long  as  they  are  left 
in  [282]  the  chemical  connection  in  which 
nature  has  organized  them;  but  when  they 
are  extracted  by  the  artificial  processes  of 
chemistry  they  become  a  poison.  You  can 
extract  poison  from  grain  or  its  products 
and  when  it  is  extracted  it  is  a  deadly  poi- 
son; but  if  you  leave  that  poison  as  nature 
embodied  it  in  the  original  substances,  it  is 
not  a  dangerous  poison  or  an  active  agency 
of  poison  at  all.  So,  in  order  to  avoid  the 
threat  that  those  who  produce  a  perfectly 
legitimate  article  from  a  natural  product 
might  be  held  liable  because  the  product 
contained  nature's  poison,  it  was  thought 
•uiBcient  to  provide  against  the  adding  of 
any  new  substance  that  was  in  itself  a 
poison,  and  thus  emphasizing  the  evils  of 
existing  conditions  in  nature's  product, 
niat  is  the  reason  the  word  'added'  is  in 
60  li.  ed. 


the  bill.  Fusel  oil  is  a  poison.  If  you  ex- 
tract it,  it  becomes  a  single  active  agency 
of  destruction,  but  allow  it  to  remain  in 
the  combination  where  nature  has  placed 
it,  and,  while  it  is  nominally  a  poison,  it 
is  a  harmless  one,  or  comparatively  so." 
For  the  Senate  bill,  the  House  of  Repre- 
sentatives substituted  a  measure  which  had 
the  particular  provisions  now  under  con* 
sideration  in  substantially  the  same  form 
in  which  they  were  finally  enacted  into  law. 
(§  7,  subdiv.  6th;  §  8,  subdiv.  4th,  provisos.) 
And  the  committee  of  the  House  of  Repre- 
sentatives, in  reporting  this  substituted 
measure,  said  (H.  R.  Report,  No.  2118,  59th 
Cong.,  1st  Sess.,  pp.  6,  7,  11) :  "The  pur- 
pose of  the  pending  measure  is  not  to  com- 
pel people  to  consume  particular  kinds  of 
foods.  It  is  not  to  compel  manufacturers 
to  produce  particular  kinds  or  grades  of 
foods.  One  of  the  principal  objects  of  the 
bill  is  to  prohibit  in  the  manufacture  of 
foods  intended  for  interstate  commerce  the 
addition  of  foreign  substances  poisonous  or 
deleterious  to  health.  The  bill  does  not 
relate  to  any  natural  constituents  of  food 
products  which  are  placed  in  the  foods  by 
nature  itself.  It  is  well  known  that  in 
many  kinds  of  foods  in  their  natural  state 
some  quantity  of  poisonous  [283]  or  dele- 
terious ingredients  exist.  How  far  these  sub- 
stances may  be  deleterious  to  health  when 
the  food  articles  containing  them  are  con- 
sumed may  be  a  subject  of  dispute  between 
the  scientists,  but  the  bill  reported  does  not 
in  any  way  consider  that  question.  If,  how- 
ever, poisonous  or  deleterious  substances  are 
added  by  man  to  the  food  product,  then  the 
bill  declares  the  article  to  be  adulterated, 
and  forbids  interstate  traffic." 

This  statement  throws  light  upon  the  in- 
tention of  Congress.  Illustrations  are  given 
to  show  possible  incongruous  results  of  the 
te8t,but  they  do  not  outweigh  this  deliberate 
declaration  of  purpose;  nor  do  we  find  in 
the  subsequent  legislative  history  of  the 
substituted  measure  containing  the  provi- 
sion any  opposing  statement  as  to  the  sig- 
nificance of  the  phrase.  It  must  also  be 
noted  that  some  of  the  illustrations  which 
are  given  lose  their  force  when  it  is  re- 
membered that  the  statutory  ban  (§  7,  sub- 
div. 6th)  by  its  explicit  terms  only  applies 
where  the  added  ingredient  may  render  the 
article  injurious  to  health.  See  United 
States  V.  Lexington  Mill  &  Elevator  Co.  232 
U.  S.  399,  409,  58  L.  ed.  658,  661,  L.R.A 
1915B,  774,  34  Sup.  Ct.  Rep.  337.  It  is 
urged  that  whatever  may  be  said  of  natural 
food  products,  or  simple  food  products,  to 
which  some  addition  is  made,  a  "proprie- 
tary food"  must  necessarily  be  "something 
else  than  the  simple  or  natural  article;" 
that  it  is  an  "artificial  preparation."    It  is 

loot 


283-286 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


insisted  that  every  ingredient  in  such  a 
compound  cannot  bo  deemed  to  be  an  ''add- 
ed" ingredient.  But  this  argument,  and 
the  others  that  are  advanced,  do  not  com- 
pel the  adoption  of  the  asserted  alternative 
as  to  the  saving  eflScacy  of  the  formula. 
Nor  can  we  accept  the  view  that  the  word 
"added"  should  be  taken  as  referring  to 
the  quantity  of  the  ingredient  used.  It  is 
added  ingredient  which  the  statute  describes, 
not  added  quantity  of  the  ingredient,  al- 
though of  course  quantity  may  be  highly 
important  in  determining  whether  the  in- 
gredient may  render  the  article  harmful, 
and  experience  in  the  use  of  ordinary  arti- 
cles of  [284]  food  may  be  of  greatest  value 
in  dealing  with  such  questions  of  fact. 

Congress,  we  think,  referred  to  ingredients 
artificially  introduced;  these  it  described 
as  "added."  The  addition  might  be  made 
to  a  natural  food  product  or  to  a  compound. 
If  the  ingredient  thus  introduced  was  of 
the  character  and  had  the  effect  described, 
it  was  to  make  no  difference  whether  the 
resulting  mixture  or  combination  was  or 
was  not  called  by  a  new  name  or  did  or 
did  not  constitute  a  proprietary  food.  It 
is  said  that  the  preparation  might  be  "en- 
tirely new."  But  Congress  might  well  sup- 
pose that  novelty  would  probably  be  sought 
by  the  use  of  such  ingredients,  and  that 
this  womld  constitute  a  means  of  deception 
and  a  menace  to  health  from  which  the 
public  should  be  protected.  It  may  also 
have  been  supposed  that,  ordinarily,  famil- 
iar food  bases  would  be  used  for  this  pur- 
pose. But,  however  the  compound  purport- 
ing to  be  an  article  of  food  might  be  made 
up,  we  think  that  it  was  the  intention  of 
Congress  that  the  artificial  introduction  of 
ingredients  of  a  poisonous  or  deleterious 
character  which  might  render  the  article 
injurious  to  health  should  cause  the  prohibi- 
tion of  the  statute  to  attach. 

In  the  present  case,  the  article  belongs  to 
a  familiar  group;  it  is  a  syrup.  It  was 
originally  called  "Cooo-Cola  Syrup  and  Ex- 
tract." It  is  produced  by  melting  sugar, — 
the  analysis  showing  that  62.64  per  cent 
of  the  product  is  sugar  and  42.63  per  cent 
is  water.  Into  the  syrup  thus  formed  by 
boiling  the  sugar,  there  are  introduced  col- 
oring, fiavoring,  and  other  ingredients,  in 
order  to  give  the  syrup  a  distinctive  char- 
acter. The  caffeine,  as  has  been  said,  is  in- 
troduced in  the  second  or  third  "melting." 
We  see  no  escape  from  the  conclusion  that  it 
is  an  "added"  ingredient  within  the  mean- 
ing of  the  statute. 

Upon  the  remaining  question  whether  the 
caffeine  was  a  poisonous  or  deleterious  in- 
gredient which  might  render  the  article 
injurious  to  health,  there  was  a  decided  con- 
flict [286]  of  competent  evidence.  The  gov- 
1004 


emment's  experts  gave  testimony  to  the 
effect  that  it  was,  and  the  claimant  intro- 
duced evidence  to  show  the  contrary.  It  ia 
suflftcient  to  say  that  the  question  was  plain- 
ly one  of  fact  which  was  for  the  oonsidera- 
tion  of  the  jury.  See  443  Cans  of  Frozea 
Egg  Product  V.  United  States,  226  U.  S.  172, 
183,  57  L.  ed.  174,  170,  33  Sup.  Ct.  Rep. 
60. 

Second.  As  to  "mithranding"  In  the 
second  count  it  was  charged  that  the  ex- 
pression "Coca  Cola"  represented  the  pres* 
ence  in  the  product  of  the  substances  coca 
and  cola,  and  that  it  contained  "no  coca 
and  little  if  any  cola."  So  far  as  "cola" 
was  concerned,  the  charge  was  vague  and 
indefinite,  and  this  seems  to  have  been  con- 
ceded by  the  government  at  the  beginning  of 
the  trial.  With  respect  to  "coca,"  there 
was  evidence  on  the  part  of  the  goveminent 
tending  to  show  that  there  was  nothing  in 
the  product  obtained  from  the  leaves  of  the 
coca  plant,  while  on  behalf  of  the  claim- 
ant it  was  testified  that  the  material  called 
"Merchandise  No.  6"  (one  of  the  ingredi- 
ents) was  obtained  from  both  coca  leavea 
and  cola  nuts.  It  was  assumed  on  the  mo- 
tion for  a  peremptory  instruction  that  there 
might  be  a  disputed  question  of  fact  as  to 
whether  the  use  of  the  word  "coca"  is  to 
be  regarded  "intrinsically  and  originally" 
as  stating  or  suggesting  the  presence  of 
"some  material  element  or  quality"  derived 
from  coca  leaves,  and  it  was  also  assumed 
that  the  evidence  might  be  deemed  to  be 
conflicting  with  respect  to  the  question 
whether  the  product  actually  contained  any- 
thing so  derived.  101  Fed.  438,  439.  But 
these  issues  of  fact  were  considered  not  to 
be  material.  On  this  branch  of  the  case, 
the  claimant  succeeded  upon  the  ground 
that  its  article  was  within  the  protection 
of  the  proviso  in  §  8  as  one  known  "under 
its  own  distinctive  name."  132  C.  C.  A. 
47,  216  Fed.  644. 

Section  8  (ante,  p.  1000),  in  its  4th  q>eci- 
flcation  as  to  "food,"  provides  that  the  arti- 
cle shall  be  deemed  to  be  "miobranded"  "if 
the  package  containing  it  or  its  label  shall 
[286]  bear  any  statement,  design,  or  device 
regarding  the  ingredients  or  the  substancea 
contained  therein,  which  .  .  .  shall  be 
false  or  misleading  in  any  particular."  Then 
follows  the  proviso  in  question  that  an 
article  not  containing  any  added  poisonous 
or  deleterious  ingredients  "shall  not  be 
deemed  to  be  .  .  .  misbranded"  in  the 
case  of  "mixtures  or  compounds  which  may 
be  now  or  from  time  to  time  hereafter 
known  as  articles  of  food,  under  their  own 
distinctive  names,  and  not  an  imitation  of 
or  offered  for  sale  under  the  distinctive 
name  of  another  article,"  if  the  name  is 

241  U.  8. 


1915. 


UNITED  STATES  ▼.  FORTY  BARRELS. 


286-288 


«< 


aocompanied  with  a  ttaUment  of  the  place 
where  the  article  has  been  produced.^ 

A  distinctive  name  is  a  name  that  dis- 
tinguishes. It  may  be  a  name  in  common 
use  as  a  generic  name,  e.  g,,  [287]  coffee, 
flour,  etc.  Where  there  is  a  trade  descrip- 
tion of  this  sort  by  which  a  product  of  a 
given  kind  is  distinctively  known  to  the  pub- 
lic, it  matters  not  that  the  name  had  orig- 
inally a  different  significance.  Thus,  soda 
water  is  a  familiar  trade  description  of  an 
article  which  now,  as  is  well  known,  rarely 
contains  soda  in  any  form.  Such  a  name  Is 
not  to  be  deemed  either  "misleading"  or 
false,"  as  it  is  in  fact  distinctive.  But  un- 
less the  name  is  truly  distinctive,  the  im- 
munity cannot  be  enjoyed;  it  does  not  ex- 
tend to  a  case  where  an  article  is  offered  for 
sale  "under  the  distinctive  name  of  another 
article/'  Thus,  that  which  is  not  coffee,  or 
is  an  imitation  of  coffee,  cannot  be  sold  as 
coffee;  and  it  would  not  be  protected  by 
being  called  "X's  Coffee."  Similarly,  that 
which  is  not  lemon  extract  could  not  obtain 
immunity  by  being  sold  under  the  name  of 
"Y's  Lemon  Extract."  The  name  so  used 
is  not  "distinctive,"  as  it  does  not  appro- 
priately distinguish  the  product;  it  is  an 
effort  to  trade  under  the  name  of  an  article 
of  a  different  sort.  So,  with  respect  to 
"mixtures  or  compounds,"  we  think  that 
the  term  "another  article"  in  the  proviso 
embraces  different  compounds  from  the  com- 
pound in  question.  The  aim  of  the, statute 
is  to  prevent  deception,  and  that  which  ap- 
propriately describes  a  different  compound 
cannot  secure  protection  as  a  "distinctive 
name." 

A  "distinctive  name"  may  also,  of  course, 
be  purely  arbitrary  or  fanciful,  and  thus, 
being  the  trade  description  of  the  particular 
thing,  may  satisfy  the  statute,  provided  the 
name  has  not  already  been  appropriated  for 
something  else  so  that  its  use  would  tend 
to  deceive. 

If,  in  the  present  case,  the  article  had 
been  named  "Coca,"  and  it  were  found  that 


the  name  was  actually  descriptive  in  the 
sense  that  it  fairly  implied  that  the  article 
was  derived  from  the  leaves  of  the  coca 
plant,  it  could  not  be  said  that  this  was 
"its  own  distinctive  name"  if  in  fact  it  con- 
tained nothing  so  derived.  The  [288]  name, 
if  thus  descriptive,  would  import  a  different 
product  from  the  one  to  which  it  was  ac- 
tually aflSxed.  And,  in  the  case  supposed, 
the  name  would  not  become  the  "distinctive 
name"  of  a  product  without  any  coca  in- 
gredient unless  in  popular  acceptation  it 
came  to  be  regarded  as  identifying  a  product 
known  to  be  of  that  character.  It  would 
follow  that  the  mere  sale  of  the  product 
under  the  name  "Coca,"  and  the  fact  that 
this  was  used  as  a  trade  designation  of  the 
product,  would  not  suffice  to  show  that  it 
had  ceased  to  have  its  original  significance 
if  it  did  not  appear  that  it  had  become 
known  to  the  public  that  the  article  con- 
tained nothing  derived  from  coca.  Until 
such  knowledge  could  be  attributed  to  the 
public,  the  name  would  naturally  continue 
to  be  descriptive  in  the  original  sense.  Nor 
would  it  be  controlling  that  at  the  time  of 
the  adoption  of  the  name  the  coca  plant  was 
known  only  to  foreigners  and  scientists;  for 
if  the  name  had  appropriate  reference  to 
that  plant  and  to  substances  derived  there- 
from, its  use  would  primarily  be  taken  in 
that  sense  by  those  who  did  know  or  who 
took  pains  to  inform  themselves  of  its  mean- 
ing. Mere  ignorance  on  the  part  of  others 
as  to  the  nature  of  the  composition  would 
not  change  the  descriptive  character  of  the 
designation.  The  same  conclusion  would  be 
reached  if  the  single  name  "Cola"  had  been 
used  as  the  name  of  the  product,  and  it 
were  found  that  in  fact  the  name  imported 
that  the  product  was  obtained  from  the 
cola  nut«  The  name  would  not  be  the  dis- 
tinctive name  of  a  product  not  so  derived 
until  in  usage  it  achieved  that  secondary 
significance. 

We    are    thus    brought   to    the    question 
whether,  if  the  names  coca  and  cola  were 


lAmon^  the  departmental  regulations 
(adopted  m  October,  1006,  pursuant  to  §  3, 
for  the  enforcement  of  the  act)  is  regulation 
20  with  respect  to  "distinctive  names"  un- 
der §  8,  as  follows: 

"(a)  A  'distinctive  name'  is  a  trade, 
arbitrary,  or  fancy  name  which  clearly  dis- 
tinguishes a  food  product,  mixture,  or  com- 
pound from  any  other  food  product,  mix- 
ture, or  compound. 

''(b)  A  distinctive  name  shall  not  be  one 
representing  any  single  constituent  of  a 
mtxture  or  compound. 

"(c)  A  distinctive  name  shall  not  mis- 
represent any  property  or  quality  of  a  mix- 
ture or  compound. 

"(d)  A  distinctive  name  shall  give  no 
false  indication  of  origin,  character,  or 
place  of  manufacture,  nor  lead  the  purchaser 
60  Ii.  ed. 


to  suppose  that  it  is  any  other  food  or  drug 
product." 

Regulation  27  is  as  follows: 

"(a)  The  terms  'mixtures'  and  'com- 
pounds' are  interchangeable,  and  indicate 
the  results  of  putting  together  two  or  more 
food  products. 

"(b)  These  mixtures  or  compounds  shall 
not  be  imitations  of  other  articles,  whether 
simple,  mixt,  or  compound,  or  offered  for 
sale  under  the  name  of  other  articles.  They 
shall  bear  a  distinctive  name  and  the  name 
of  the  place  where  the  mixture  or  compound 
has  been  manufactured  or  produced. 

"(c)  If  the  name  of  the  place  be  one 
which  is  found  in  different  states,  terri- 
tories, or  countries,  the  name  of  the  state, 
territory,  or  country,  as  well  as  the  name 
of  the  place,  must  be  stated." 


288-290 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


respectiyely  descriptive,  as  the  government 
contends,  a  combination  of  the  two  names 
constituted  a  ''distinctive  name"  within  the 
protection  of  the  proviso  in  case  either  of 
the  described  ingredients  was  absent.  It  is 
said  that  ''coca"  indicates  one  [280]  article, 
and  "cola"  another,  but  that  the  two  names 
together  did  not  constitute  the  distinctive 
name  of  any  other  substance  or  combination 
of  substances.  The  contention  leads  far.  To 
take  the  illustration  suggested  in  argument, 
it  would  permit  a  manufacturer,  who  could 
not  use  the  name  chocolate  to  describe  that 
which  was  not  chocolate,  or  vanilla,  to  de- 
scribe that  which  was  not  vanilla,  to  desig- 
nate a  mixture  as  "Chocolate- Vanilla,"  al- 
though it  was  destitute  of  either  or  both, 
provided  the  combined  name  had  not  been 
previously  used.  We  think  that  the  conten- 
tion misses  the  point  of  the  proviso.  A 
mixture  or  compotmd  may  have  a  name  de- 
scriptive of  its  ingredients  or  an  arbitrary 
name.  The  latter  (if  not  already  appropria- 
ted) being  arbitrary,  designates  the  particu- 
lar product.  Names,  however,  which  are 
merely  descriptive  of  ingredients,  are  not 
primarily  distinctive  names  save  as  they 
appropriately  describe  the  compound  with 
such  ingredients.  To  call  the  compound  by 
a  name  descriptive  of  ingredients  which  are 
not  present  is  not  to  give  it  "its  own  dis- 
tinctive name," — which  distinguishes  it 
from  other  compounds, — but  to  give  it  the 
name  of  a  different  compoimd.  That,  in 
our  judgment,  is  not  protected  by  the  pro- 
viso, unless  the  name  has  achieved  a  second- 
ary significance  as  descriptive  of  a  product 
known  to  be  destitute  of  the  ingredients  in- 
dicated by  its  primary  meaning. 

In  the  present  case  we  are  of  opinion  that 
it  could  not  be  said  as  matter  of  law  that 
the  name  was  not  primarily  descriptive  of 
a  compound  with  coca  and  cola  ingredients, 
as  charged.  Nor  is  there  basis  for  the  con- 
clusion that  the  designation  had  attained  a 
secondary  meaning  as  the  name  of  a  com- 
pound from  which  either  coca  or  cola  ingre- 
dients were  known  to  be  absent;  the  claim- 
ant has  always  insisted,  and  now  insists, 
that  its  product  contains  both.  But  if  the 
name  was  found  to  be  descriptive,  as 
charged,  there  was  clearly  a  conflict  of  evi- 
dence with  respect  to  the  presence  of  any 
coca  ingredient.  We  conclude  [200]  that 
the  court  erred  in  directing  a  verdict  on  the 
second  count. 

The  judgment  is  reversed  and  the  cause 
is  remand^  for  further  proceedings  in  con- 
formity with  this  opinion. 

It  is  so  ordered. 

Mr.  Justice  MoReynolds  took  no  part  in 
the  consideration  or  decision  of  this  case. 
lOOC 


SEABOARD  AIR  UNE  RAILWAY,  Plfl. 

in  Err., 
v. 

J.  T.  RENN. 

(See  S.  C.  Reporter's  ed.  200-295.) 

Error  to  state  conrt  —  Federal  question 
-employers'  liability  —  amendment 
of  pleading. 

1.  Whether  or  not  the  two  years'  limi- 
tation prescribed  by  the  employers'  liabil- 
ity act  of  April  22,  1908  (35  Stat,  at  L. 
65,  chap.  140,  Comp.  Stat.  1013,  §  8657),  for 
actions  under  that  act,  was  in  effect  disre- 
garded by  permitting  the  amendment  of  the 
complaint  so  as  to  state  distinctly  that,  at 
the  time  of  the  injury,  the  defendant  was 
engaged  and  the  plaintiff  employed  in  inter- 
state commerce,  is  a  Federal  question  sub- 
ject to  re-examination  by  writ  of  error  to 
a  state  court,  however  much  the  allowance 
of  the  amendment  otherwise  might  have 
rested  in  discretion,  or  have  been  a  matter 
of  local  procedure. 

[For  other  cases,  see  Appeal  and  Error,  1751- 
1797,  in  Digest  Sap.  Ct.  1908.] 

lilmitation  of  actions  —  suspension  by 
suit  —  amendment  —  new  cause  of  ac- 
tion —  employers'  liability. 

2.  Allegations  in  the  complaint  in  a 
suit  in  a  North  Carolina  court  by  a  rail- 
way employee  to  recover  for  personal  in- 
juries suffered  through  the  railway  com- 
pany's negligence,  that  the  railway  company 
was  operating  a  railway  in  Virginia,  North 
Carolina,  and  elsewhere,  that  plaintiff  was 
in  its  employ,  and  that,  when  injured,  he  was 
in  the  line  of  duty,  and  that  the  injury  oc- 
curred in  Virginia  by  reason  of  a  defect  in 
the  right  of  way,  point,  although  imper- 
fectly, to  a  cause  of  action  under  the  Fed- 
eral employers'  liability  act  of  April  22, 
1908  (35  Stat,  at  L.  65,  chap.  149,  Comp. 
Stat.  1913,  §  8657),  so  that  an  amendment 
stating  distinctly  that,  at  the  time  of  the 
injury,  defendant  was  engaged  and  plaintiff 
employed  in  interstate  commerce,  did  not 
introduce  a  new  cause  of  action  which  would 

Note. — On  error  to  state  courts  in  cases 
arising  under  the  Federal  employers'  lia- 
bility act — see  note  to  Great  Northern  R, 
Co.  V.  Knapp,  ante,  745. 

On  the  constitutionality,  application,  and 
effect  of  the  Federal  employers'  liability  act 
— see  notes  to  Lamphere  v.  Oregon  R.  4 
Nav.  Co.  47  L.R.A.(N.S.)  38;  and  Sea- 
board Air  Line  R.  Co.  v.  Horton,  L.RJL 
1915C,  47. 

On  relation  of  new  pleadings  to  statute 
of  limitations — see  notes  to  Missouri,  K. 
ft  T.  R.  Co.  V.  Bagley,  3  L.Rji.(N.S.)  259; 
Bourdreaux  v.  Tucson  Gas,  £.  L.  ft  P.  Co. 
33  L.R.A.(N.S.)  196;  and  Philadelphia,  B. 
ft  W.  R.  Co.  V.  Gatta,  47  LJLA.(N.S.)  932. 

On  amendment  of  pleading  after  limita- 
tion period  by  changing  from  common  law 
to  statute,  or  vice  versa,  or  from  statute  of 
one  Jurisdiction  to  statute  of  another — see 
note  to  Allen  v.  Tuscarora  Valley  R.  Co.  80 
L.R^.(NJ3.)   1096. 

141  V.  B. 


1916. 


SEABOARD  A.  L.  R.  00.  t.  BENN. 


be  barred,  because  the  two  years'  limita- 
tion prescribed  by  §  6  had  then  elapsed, 
but  such  amendment  merely  expanded  or 
amplified  what  was  alleged  in  support  of 
the  cause  of  action,  and  related  back  to  the 
commencement  of  l^e  suit. 
[For  other  cases,  see  Limitation  o^  Actions, 
690-602,  in  Digest  Sup.  Ct.  190L.J 

[No.  773.] 

Argued  April  4,   1016.     Decided  May  22, 

1016. 

IK  ERROR  to  the  Supreme  Court  of  the 
State  of  North  Carolina  to  review  a 
judgment  which  affirmed  a  judgment  of  the 
Superior  Court  of  Wake  County,  in  that 
state,  in  favor  of  plaintiff  in  an  action  un- 
der the  Federal  employers'  liability  act.  Af- 
firmed. 

See  same  case  below,  —  N.  C.  — ,  86  S.  E. 
964. 

The  facts  are  stated  in  the  opinion. 

Mr.  Murray  Allen  argued  the  cause  and 
filed  a  brief  for  plaintiff  in  error: 

Cases  from  the  state  courts  inyolving  the 
operation  and  effect  of  the  Federal  employ- 
ers' liability  act  are  reviewable  by  the  Su- 
preme Court  on.  writ  of  error. 

St.  Louis,  I.  M.  A  S.  R.  Co.  v.  McWhirter, 
229  U.  8.  265,  57  L.  ed.  1179,  33  Sup.  a. 
Rep.  858;  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Taylmr,  210  U.  S.  292,  52  L.  ed.  1066,  28 
Sup.  Ot.  Rep.  616,  21  Am.  Neg.  Rep.  464; 
Seaboard  Air  Line  R.  Co.  v.  Duvall,  225  U. 
8.  483,  56  L.  ed.  1174,  32  Sup.  Ct.  Rep. 
790;  Seaboard  Air  Line  R.  Co.  v.  Horton, 
233  U.  S.  492,  58  L.  ed.  1062,  L.RA.1915C, 
1,  34  Sup.  Ct.  Rep.  635,  Ann.  Cas.  1915B, 
475,  8  N.  C.  C.  A.  834;  Seaboard  Air  Line 
R.  Co.  V.  Padgett,  236  U.  S.  668,  59  L.  ed. 
777,  35  Sup.  Ct.  Rep.  481;  Seaboard  Air 
Line  R.  Co.  v.  Koennecke,  239  U.  S.  352, 
ante,  324,  86  Sup.  Ct.  Rep.  126. 

The  complaint  does  not  state  a  cause  of 
action  under  the  Federal  statute. 

Chicago  ft  E.  R.  Co.  v.  Hamerick,  50  Ind. 
App.  425,  96  N.  E.  649;  Seaboard  Air  Line 
R.  Co.  V.  Duvall,  225  U.  S.  477, 56  L.  ed.  1171, 
82  Sup.  Ct.  Rep.  790;  North  Carolina  R. 
Co.  V.  Zachary,  232  U.  S.  248,  58  L.  ed.  591, 
34  Sup.  Ct  Rep.  305,  Ann.  Cas.  1914C,  159, 
9  N.  C.  C.  A.  109;  Shade  v.  Northern  P.  R. 
Co.  206  Fed.  353;  Grand  Trunk  Western  R. 
Co.  V.  Lindsay,  233  U.  S.  42,  58  L.  ed.  838, 
34  Sup.  Ct.  Rep.  581,  Ann.  Gas.  1914C,  168; 
Missouri,  K.  &  T.  R.  Co.  v.  Wulf,  226  U.  S. 
570,  57  L.  ed.  355,  83  Sup.  Ct.  Rep.  135, 
Ann.  Cas.  1914B,  134;  Morrison  t.  Balti- 
more ft  0.  R.  Co.  40  App.  D.  C.  395,  Ann. 
Cas.  1914C,  1026;  Brinkmder  r.  Missouri 
P.  R.  Co.  224  U.  8.  268,  56  L.  ed.  758,  32 
Sup.  Ct.  Rep.  412;  North  Carolina  R.  Co. 
▼.  Zachary,  232  U.  8.  248,  68  L.  ed.  591, 
••  Ii.  ed. 


34  Sup.  Ot.  Rep.  305,  9  N.  0.  C.  A.  109; 
Walton  T.  Southern  R.  Co.  179  Fed.  175. 

The  court  will  look  only  to  the  pleadings 
to  determine  the  basis  of  the  plaintiff's 
cause  of  action. 

Hall  V.  Louisville  ft  N.  R.  06.  157  Fed. 
464;  Smith  v.  Buttner,  90  Cal.  95,  27  Pac. 
20;  Chamblin  v.  Blair,  58  111.  385;  4  Enc. 
PI.  ft  Pr.  746;  Ejinsas  City  v.  Hart, 
60  Kan.  684,  57  Pac.  038;  Haley  v.  Hob- 
son,  68  Me.  167;  Third  Street  ft  Subur- 
ban R.  Co.  V.  Lewis,  173  U.  S.  457,  460,  43 
L.  ed.  766,  767,  49  Sup.  Ct.  Rep.  451 ;  West- 
em  U.  Teleg.  Co.  v.  Southern  ft  St.  L.  R. 
Co.  125  C.  0.  A.  466,  208  Fed.  266;  Minne- 
sota V.  Northern  Securities  Co.  194  U.  S. 
48,  64,  48  L.  ed.  870,  878,  24  Sup.  Ot  Rep. 
598;  Washington  ft  I.  R.  Co.  v.  Ccsur 
lyAlene  R.  ft  Nav.  Co.  160  U.  S.  77,  40  L. 
ed.  346,  16  Sup.  Ct.  Rep.  231. 

The  cause  of  action  created  by  the  Fed- 
eral statute  is  separate  and  distinct  from 
the  cause  of  action  created  by  the  state 
statute,  or  arising  tmder  the  common  law. 

Midland  Valley  R.  Co.  v.  Ennis,  109  Ark. 
206,  159  S.  W.  214;  Second  Employers*  Lia- 
bility Cases  (Mondou  v.  New  York,  N.  H. 
ft  H.  R.  Co.)  223  U.  S.  1,  56  L.  ed.  327,  38 
L.RJV.(N.S.)  44,  32  Sup.  Ct.  Rep.  169,  1 
N.  C.  C.  A.  875;  Michigan  C.  R.  Co.  v. 
Vreeland,  227  U.  S.  59,  57  L.  ed.  417,  33 
Sup.  Ot.  Rep.  192,  Ann.  Cas.  1914C,  176; 
St.  Louis,  I.  M.  ft  S.  R.  Co.  v.  Craft,  237 
U.  8.  648,  59  L.  ed.  1160,  35  Sup.  Ct.  Rep. 
704,  9  N.  0.  C.  A.  754 ;  Hlinois  C.  R.  Co. 
V.  Behrens,  233  U.  S.  473,  58  L.  ed.  1051, 
34  Sup.  Ct.  Rep.  646,  Ann.  Cas.  1914C,  163 ; 
Pedersen  v.  Delaware,  L.  ft  W.  R.  Co.  229 
U.  S.  150,  57  L.  ed.  1127,  33  Sup.  Ct.  Rep. 
648,  Ann.  Oas.  1914C,  153,  3  N.  0.  0.  A. 
779;  Taylor  v.  Taylor,  232  U.  8.  363,  58  L. 
ed.  638,  34  Sup.  Ct.  Rep.  350,  6  N.  C.  C.  A. 
436;  Central  Vermont  R.  Co.  v.  White,  238 
U.  S.  507,  59  L.  ed.  1433,  35  Sup.  Ct.  Rep. 
885,  Ann.  Cas.  1916B,  252,  9  N.  0.  0.  A. 
265;  Seaboard  Air  Line  R.  Co.  v.  Koen- 
necke, 239  U.  8.  352,  ante,  324,  36  Sup.  Ct. 
Rep.  126;  Seaboard  Air  Line  R.  Co.  v. 
Horton,  233  U.  S.  492,  58  L.  ed.  1062,  L.R.A. 
19150,  1,  34  Sup.  Ct.  Rep.  636,  Ann.  Cas. 
1915B,  475,  8  N.  0.  0.  A.  834;  Toledo,  St. 
L.  ft  W.  R.  Co.  V.  Slavin,  236  U.  S.  454,  59 
L.  ed.  671,  35  Sup.  Ct.  Rep.  306;  Flanders 
V.  Georgia,  8.  ft  F.  R.  Co.  68  Fla.  479,  67 
So.  68;  Kamboris  v.  Or^fon- Washington  R. 
ft  Nav.  Co.  75  Or.  358,  146  Pac.  1097 ;  Trox- 
ell  V.  Delaware,  L.  ft  W.  R.  Co.  227  U.  8. 
434,  57  L.  ed.  586,  33  Sup.  Ct.  Rep.  274; 
Thornton,  Federal  Employers*  Liability 
Act,  2d  ed.  §  140;  McAuliffe  v.  New  York 
C.  ft  H.  R.  R.  Co.  164  App.  Div.  846,  150 
N.  Y.  Supp.  512. 

The  plaintiff  had  the  seleetion  of  the 
basis  of  his  action. 


292,  298 


SUPRBUE  COURT  OF  THB  UNITED  STATES. 


OCPr.  ■ 


St.  Louis,  I.  M.  &  B.  R.  Co.  v.  HMterlj, 
226  U.  S.  702,  07  L.  ed.  1031,  33  Sup.  Ct, 
Sep.  703. 

The  court  had  no  power  to  allow  tn 
uneudnient  stating  for  the  flrit  time  a 
cause  of  action  under  the  Federal  act  aftei 
the  expiration  of  the  period  Siod  by  the 
act   for  the  commcncenient  of  auch  action. 

Atlantic  Ooaat  Line  R.  Co.  t.  Burnette, 
239  U,  S.  199,  ante,  226,  36  Sup.  Ct.  Rep. 
7K;  Bennett  t.  North  Carolina  R.  Co.  1G9 
N.  C.  345,  74  S.  E.  883;  NelMn  t.  Fir»t 
Kat.  Bank,  130  Ala.  S86,  101  Am.  St.  Rep. 
S2,  3G  So.  707;  Anderaon  v.  WetUr,  103 
He.  267,  15  L.R.A.(N.S.)  10C3,  SO  Atl.  105; 
Henderson  v.  Qraham,  84  N.  C.  49S;  Martin 
V.  Young,  B5  N.  C.  167;  Gtllam  v.  Life  Ini. 
Co.  121  N.  C.  380,  28  S.  E.  470;  Christmaa 
V.  Mitchell,  38  N.  C.  (3  Ired.  Eq.)  536; 
Cogdell  V.  Exum,  60  M.  C.  404,  12  Am.  Rep. 
flfi7;  Patterson  \.  Wadaworth,  04  N.  O. 
MS;  Sama  v.  Price,  121  N.  C.  302,  28  8. 
E.  486;  Hall  V.  Southern  R.  Co.  149  N.  C. 
108,  62  S.  E.  809;  Morrison  v.  Baltimore 
k  0.  R.  Co.  40  App.  D.  C.  301,  Ann.  Cas. 
1014C,  1026;  Mohr  v.  Lemie,  00  Ala.  180; 
Whaien  v.  Gordon,  37  C.  C.  A.  70,  05  Fed. 
313;  Union  P.  R.  Co.  v.  Wyler,  168  U.  S. 
293,  30  L.  ed.  080,  Ifi  Sup.  Ct  Rep.  877: 
Atlantic  ft  P.  R.  Co.  v.  Laird,  164  U.  S. 
396,  41  L.  ed.  480,  17  Sup.  Ot.  Rep.  120; 
United  SUtea  t.  Dalcour,  203  U.  S.  408,  61 
L.  ed.  248,  27  Sup.  Ct.  Rep.  68;  Uiaaouri, 
K.  ft  T.  R.  Co.  T.  Wulf,  228  U.  S.  670,  57 
L.  ed.  355,  33  Sup.  Ct.  Rep.  13S,  Ann.  Cas. 
1014B,  134;  Bt  Louie,  I.  M.  ft  S.  R.  Co.  'v. 
Heaterly,  anpra;  Patillo  t.  Allen-Weet  Com. 
miaaion  Co.  65  C.  C.  A.  508,  131  Fed.  680; 
Moliter  v.  Wabash  R.  Co.  180  Mo.  App.  84, 
168  S.  W.  250;  Hughea  *.  New  York,  0.  ft 
W.  R.  Co.  158  App.  Div.  443,  143  N.  Y. 
Supp.  603;   Findle;  v.  Coal  ft  Oolce  R.  Co. 

—  W.  Va.  — ,  87  S.  E.  108;  Hail  v.  Louia- 
ville  A  N.  R.  Co.  167  Fed.  404 ;  Creteau  v. 
Chicago  ft  N.  W.  R.  Co.  113  Minn.  418,  120 
N.  W.  855. 

The  amendment  allowed  by  the  court 
states  a  new  cause  of  action,  which  is 
tMrred  by  the  expiration  of  the  period  of 
limitation  fixed  bj  the  act  creating  the 
right  of  action. 

Roberts,  Injuries  \o  Interstate  Employ- 
ees, 1016,  SS  162.  163;  Allen  v.  Tuscarora 
Valley  R.  Co.  220  Pa.  07,  30  L.R.A.(N.S.) 
1006,  140  Am.  St.  Rep.  714,  78  Atl.  34; 
Moliter  t.  Wabash  R.  Co.  180  Mo.  App.  84, 
168  S.  W.  260;  Hughes  t.  New  York,  O.  ft 
W.  R.  Co.  IS8  App.  Div.  443,  143  N.  Y. 
Supp.  603;  Findley  v.  Coal  ft  Coke  R.  Co. 

—  W.  Va.  — ,  87  S.  E.  198, 
i099 


Meaars.  Robert  N.  SImma  and  WU^ 
lUm  C.  Donlnaa  argued  the  cause,  and, 
with  Mr.  Clyde  A.  Douglua  filed  a  brief  for 
defendant  in  error: 

The  original  complaint  eontaina  sufficient 
allegations  under  the  Federal  act. 

Seaboard  Air  Line  R.  Co.  v.  DuraU,  225 
U.  8.  477,  66  L.  *d.  1171,  32  Sup.  Ot.  Hep. 
790. 

If  the  complaint  was  insufflcient,  it  wa* 
only  a  defective  statement  of  a  good  cause. 

Allen  V.  Carolina  R.  Co.  120  N.  C.  648, 
27  S.  E.  76;  Seaboard  Air  Line  7.  Co.  t. 
Main,  132  N.  C.  452,  43  S.  B.  930. 

Hie  allowance  of  the  amendment  in- 
volved only  a  question  of  local  practice,  and 
presents  no  Federal  question. 

Brinkmeier  v.  Missouri  P.  R.  Co.  224  V. 
8.  268,  56  L.  ed.  758,  32  Sup.  Ct.  Rep.  412; 
Wabaab  R.  Co.  v.  Hayes,  234  U.  S.  86,  68  L. 
ed.  1820,  34  Sup.  Ct.  Rep.  729,  6  N.  C.  C. 
A.  224;  Central  Vermont  R.  Oo.  v.  White, 
238  U.  B.  507,  GO  L.  ed.  1433.  35  Sup.  Ct. 
Rep.  865,  Ann.  Caa.  1016B,  252,  B  N.  C.  C. 
A.  266. 

It  is,  of  course,  fundamental  that  if  the 
amendment  did  not  state  a  new  cause  of 
action,  its  allowance  was  in  the  diacretion 
of  the  court,  and  the  plea  of  the  statute  ot 
limitations  waa  not  available  against  tt,  the 
original  complaint  having  been  filed  and  the 
action  commenced  before  the  bar  of  the  stat- 
ute. It  is  also  fundamental  that  when  as 
amendment  ia  properly  allowed,  it  is  oper- 
ative and  conatrued  as  if  it  had  been  made 
at  the  eomnicncement  of  the  action. 

Note  to  Union  P.  R.  Co.  v.  Wyler,  30  L. 
ed.  983;  Wynne  v.  London  ft  Q.  ins.  Oo.  71 
N.  0. 121 ;  Ely  V.  Early,  94  N.  C.  1 ;  Whaien 
V.  Gordon,  37  C.  C.  A.  70,  05  Fed.  306; 
Woodcock  T.  Bostic,  128  N.  C.  243,  30  8.  E. 
881. 

Defendant  in  error  especially  relies  upon 
Missouri,  K.  ft  T.  R.  Oo.  v.  Wulf,  226  U.  S. 
570,  57  L.  ed.  355,  33  Sup.  Ct.  Rep.  135, 
Ann.   Cas.   1014B,  134. 

Mr.  Justice  Van  Deranter  delivered  ths 
opinion  of  the  court: 

Thia  was  an  action  by  an  employee  ot  a 
railroad  company  to  recover  from  ths  latter 
for  peraonal  injuries  suffered  through  its 
negligence.  The  plaintiff  had  a  verdict  and 
judRment  under  the  employera'  liability  act 
if  Congress  (chap.  140,  85  Stat,  at  L.  U. 
Comp.  Stat.  IS13,  g  8657 ;  chap.  143,  36  Btat 
it  L.  291),  the  judgment  was  afflrmed  (— 
tf.  c.  — ,  86  B.  E.  064),  and  the  defendant 
brings  the  ease  here. 

The  original  complaint  was  exceedingly 
brief  and  did  [293]  not  snlBcieotlj  idlege 
that  at  the  time  of  the  Injury  the  defendant 
was  engaged  and  the  plaintiff  emplorad  in 
interstate  commeros.    During  the  trial  ths 

t4i  u.  a. 


igifi. 


BEABOABD  A.  L.  K.  CO.  *.  REMN. 


defendant  sought  Mme  advantage  from  thii 
and  the  court,  over  the  defendant's  objec 
tion.  permitted  the  complaint  to  be  Bi 
amended  as  to  state  dJEtinctly  tbe  defend 
ant's  engagement  and  the  plaintiff's  «np1o; 
ment  in  such  commerce.  Both  partiei 
conceded  that  what  wtia  alleged  in  thi 
amendment  was  true  in  tact  and  conformet 
to  the  proofs,  and  that  point  has  alnce  beei 
treated  as  settled.  Tbe  defeodaot's  objec 
tion  was  that  the  original  complaint  die 
not  state  a  cause  of  action  under  the  act  o 
Congress,  that  with  the  amendment  the  com 
plaint  would  state  a  new  cause  ol  action  un 
der  that  act,  and  that,  as  more  than  tw< 
^ears  had  elapsed  since  tbe  right  of  actioi 
accrued,  the  amendment  could  not  be  madi 
the  medium  of  introducing  this  new  cause  ol 
action  consistently  with  the  provision  in  9  ( 
that  "no  action  shall  be  maintained  undei 
this  act  unless  commenced  within  two  yean 
from  the  day  the  cause  of  action  acrued.' 
Whether  in  what  was  done  this  restrictioc 
was  in  elTect  disregarded  is  a  Federal  ques 
tion  and  subject  to  re-examination  here 
however  much  the  allowance  of  the  amend- 
ment otherwise  might  have  rested  In  dis 
crction  or  been  a  matter  of  local  procedure 
Atlantic  Coast  Une  R.  Co.  v.  Bumette,  23S 
U.  S.  199,  ante,  226,  36  Sup.  Ct.  Hep.  75.  11 
the  amendment  merely  eipanded  or  ampli- 
fied what  was  alleged  in  support  of  the  caust 
of  action  already  asserted,  it  related  back  to 
the  commencement  of  the  action,  and  was 
not  affected  by  tbe  intervening  lapse  of  time. 
Texas  t  P.  R.  Co.  v.  Coi,  145  U,  S.  693,  803, 
604,  36  h.  ed.  82S,  832,  833,  12  Sup.  Ct.  Rep. 
fl06;  Atlantic  &  P.  R.  Co.  v.  Laird,  164  U.  S. 
393,  41  L.  ed.  485,  IT  Sup.  Ct.  Rep.  120; 
Hutdiinson  v.  Otis,  190  U.  8.  552,  655,  47 
L.  ed.  1179,  1181,  23  Sup.  Ct.  Rep.  778; 
Missouri,  K.  &  T.  R.  Co.  v.  Wulf,  226  U.  S. 
570,  67S,  57  L.  ed.  355,  363,  33  Sup.  Ct  Rep. 
135,  Ann.  Cas.  1914B,  134;  Crotty  v.  Chica- 
go G.  W.  R.  Co.  95  C.  C.  A.  91, 16B  Fed.  593. 
But  if  it  introduced  a  new  or  different  cause 
of  action,  it  was  the  equivalent  of  a  new 
BUit,  as  to  which  the  running  [294]  of  the 
limitation  was  not  theretofore  arrested.  Sic- 
ard  V.  Davis.  6  Pet.  124,  140,  6  L.  ed.  342, 
348;  Union  P.  R.  Co.  v.  Wyler,  158  U.  S. 
285,  39  L.  ed.  883,  15  Sup.  Ct.  Rep.  877; 
United  SUtes  v.  Dalcour,  203  U.  S.  408,  423, 
61  L.  ed.  248,  251,  27  Sup.  Ct.  Rep.  68.  The 
original  complaint  set  forth  that  the  defend- 
ant was  operating  a  line  of  railroad  in 
Virginia,  North  Carolina,  and  elsewhere; 
that  tbe  plaintiff  was  in  its  employ;  that 
when  he  was  injured  he  was  in  the  line  of 
duty  and  was  proceeding  to  get  aboard  one 
of  the  defendant's  trains,  and  that  the  in- 
jury was  sustained  at  Cochran,  Virginia, 
through  the  defendant's  negligence  in  per- 
mitting a  part  of  its  right  of  way  at  that 
place  to  get  and  remain  in  a  dangeroua  con- 
•  O  L.  ed. 


dition.  Of  course,  the  right  of  action  could 
not  arise  under  the  laws  of  North  Carolina 
when  the  causal  negligence  and  the  injury 
occurred  in  Virginia;  and  tbe  absence  of 
any  mention  of  the  laws  of  the  latter  stat« 
was  at  least  consistent  with  their  inappli- 
cability. Besides,  the  allegation  that  the  d«- 
feodant  was  operating  a  railroad  in  statas 
other  than  Virginia  was  superfluous  if  the 
right  of  action  arose  under  the  laws  of  that 
state,  and  was  pertinent  only  if  it  arose  in 
Interstate  commerce,  and  therefore  under  the 
act  of  Congress.  In  these  drcumstances, 
while  the  question  is  not  free  from  difBeulty, 
we  cannot  say  that  the  court  erred  in  treat- 
ing the  original  complaint  a*  pointing,  al- 
though only  imperfectly,  to  a  cause  of  action 
inder  the  law  of  Congress.  And  this  being 
w,  it  must  be  taken  that  the  amendment 
merely  expanded  or  amplified  what  w.'.s  al- 
leged in  support  of  that  cause  of  action,  and 
related  back  to  the  commencement  of  the 
mit,  which  was  before  the  limitation  had  ex.- 

£rror  is  assigned  upon  a  refusal  to  in- 
itruct  the  jury,  as  matter  of  law,  that  there 
vas  no  evidence  of  actionable  n^ligence  on 
:he  part  of  tbe  defendant,  and  that  the  evi- 
lence  conclusively  established  an  as  sump- 
lion  by  the  plaintiff  of  the  risk  resulting  in 
lis  injury.  Both  courts,  trial  and  appellate, 
leld  against  the  defendant  upon  these 
[295]  points..  They  involve  an  apprecia- 
jon  of  all  the  evidence  and  the  inferences 
vhich  admissibly  might  be  drawn  there- 
rom;  and  it  suffices  to  say  that  we  find  no 
luch  clear  or  certain  error  as  would  justify 
listurbing  the  concurring  conclusions  of 
he  two  courts  upon  these  questions.  Qreat 
Northern  R.  Co.  v.  Knapp,  240  U.  8.  464; 
inte,  "45,  36  Sup.  Ct.  Rep.  399;  Baugham 
■.  New  York,  P.  A  N.  R.  Co.  decided  thi* 
lay  [241  U.  S.  237,  ante,  877,  36  Sup.  Ct 
lep.  592]. 

Complaint  also  is  made  of  the  Instructions 
;iven  upon  the  measure  of  damages.  Tbe 
riticism  is  directed  against  mere  frag- 
sents  of  this  part  of  tbe  charge,  and  the 
ibjectlons  made  at  the  time  were  not  such 
s  were  calculated  to  draw  the  trial  court's 
.ttention  to  the  particular  complaint  now 
irged.  The  inaccuracies  were  not  grave  and 
he  charge  as  a  whole  was  calculated  to  give 
lie  jury  a  fair  understanding  of  the  subject. 
'he  defendant,  therefore,  is  not  in  a  position 
o  press  the  complaint,  especially  as  it  waa 
ot  dealt  with  in  the  opinion  of  the  appel- 
ate court.  See  Magniac  v.  Thompson,  7 
■et.  348,  3S0,  8  L.  ed.  709,  723;  McDermott 
.  Severe.  202  U.  S.  600,  610,  50  L.  ed.  1162, 
IBS,  26  Sup.  Ct.  Rep.  709;  Illinois  C.  R.  Co. 
.  Skaggs,  240  U.  S.  66,  ante,  628,  36  Sup. 
!t.  Rep.  249. 

Judgment  affirmed. 


206 


SUPREME  COURT  OF  THE  UNITBD  STATES. 


Oor.  TkBXf 


BANKERS  TRUST  COMPANY,  as  Trustee, 

Appt., 

V. 

TEXAS  ft  PACIFIC  RAILWAY  COMPANY 
and  New  Orleans  Pacific  Railway  Com- 
pany. 

(See  S.  C.  Reporter's  ed.  205-310.) 

Federal  courts  —  Jurisdiction  —  suits 
by  or  ac^ainst  Federal  corporation. 

1.  No  exceptional  or  privileged  Fed- 
eral jurisdiction  of  suits  by  and  against  a 
railway  corporation  created  and  existing 
under  the  act  of  March  3,  1871  (16  Stat,  at 
L.  573,  chap.  122 ) ,  and  its  amendments,  was 
established  by  the  provision  of  §  1  of  that 
act  that  such  company  ''by  that  name 
.    .    .    shall  be  able  to  sue  and  be  sued, 

?ilead  and  be  impleaded,  defend  and  be  de- 
ended,  in  all  courts  of  law  and  equity  with- 
in the  United  States."  All  that  was  in- 
tended by  that  provision  was  to  render  tiie 
corporation  capable  of  suing  and  being  sued 
by  its  corporate  name  in  any  court  of  law 
or  equity — ^Federal,  state,  or  territorial — 
whose  jurisdiction,  as  otherwise  competent- 
ly defined,  was  adequate  to  the  occasion. 
[For  other  cases,  see  Courts,  576-596,  in  Di- 
gest Sap.  Ct.  1908.] 

Federal  courts  —  Jurisdiction  —  suits 
by  or  against  Federal  corporation. 

2.  Since  the  enactment  of  the  act  of 
January  28,  1915  (38  Stat,  at  L.  803,  chap. 
22),  §  5,  providing  that  "no  court  of  the 
United  States  shall  have  jurisdiction  of  any 
action  or  suit  by  or  against  any  railroad 
company  upon  the  ground  that  said  railroad 
company  was  incorporated  under  an  act  of 
Congress,"  no  suit  bv  or  against  such  a  rail- 
way company  can  be  regarded,  for  juris- 
dictional purposes,  as  arising  under  the 
laws  of  the  United  States  unless  tiiere  be 
some  adequate  ground  for  so  regarding  it 
other  than  that  the  company  was  thus  in- 
corporated, «.  e.,  derived  its  existence,  facili- 
ties, and  powers  from  such  act  of  Congress. 
[For  other  cases,  see  Courts,  576-596,  in  Di- 
gest Sup.  Ct.  1908.] 

Federal  courts  —  Jurisdiction  —  suits 
by  or  against  Federal  corporation. 

3.  A  suit  to  foreclose  a  mortgage  given 
by  a  railway  company  which  was  incor- 
porated and  exists  under  Federal  legisla- 
tion does  not  arise  under  the  laws  of  the 
United  States  apart  from  the  Federal  in- 
corporation so  as  to  be  justiciable  in  the 
Federal  courts,  since  the  enactment  of  the 
act  of  January  28,  1915  (38  Stat,  at  L. 
803,  chap.  22),  §  5,  although  the  mortgage 
may  have  been  given  under  a  power  con- 
ferred by  the  Federal  charter. 

[For  other  cases,  see  Courts,  576-596,  in  Di- 
gest Sap.  Ct  1908.] 

NoTB. — Generally  as  to  diverse  citizenship 
as  ground  of  Federal  jurisdiction — see  note« 
to  Seddon  v.  Virginia,  T.  ft  C.  Steel  ft  I.  Co. 

I  L.R.A.  108;  Myers  v.  Murray,  N.  ft  Cfe. 

II  L.RA.  216;  £mory  v.  Greenou^,  1  L. 
ed.  U.  S.  640;  Strawbridge  v.  Curtiss,  2 
L.  ed.  U.  S.  435;  M'Donald  y.  SmaUey,  7  L. 
ed.  U.  S.  287;  and  Roberts  v.  Lewis,  36  L. 
ed.  U.  S.  579. 

1010 


Federal  courts  —  Jurisdiction  —  dlrerse 
citizenship  —  Federal  corporation  not 
citizen  of  state. 
4.  A  railway  company  incorporated  un- 
der an  act  of  Congress  to  carry  on  its  ae- 
tivities  and  (^>erations  in  different  states 
cannot  be  regarded  as  a  citizen  of  any  par- 
ticular state  for  the  purpose  of  giving  a 
Federal    district    court    jurisdiction    of  a 
suit  against  it  on  grounds  of  diversity  of 
citizenship. 

[For  other  cases,  see  Courts,  687-675,  in  Di- 
gest Sap.  Ct.  1908.] 

[No.  880.] 

Argued  April  12  and  13,   1916.     Decided 

May  22,  1016. 

APPEAL  from  the    District  Court  of  the 
United  States  for  the  Northern  District 
of  Texas  to  review  a  decree  dismissing,  for 
want  of  jurisdiction,  a  suit  to  foreclose  a 
railway  mortgage.    Affirmed. 
The  facts  are  stated  in  the  opinion. 

Mr.  Maurice  £•  Lodce  argued  the  cause, 
and,  with  Mr.  William  W.  Qreen,  filed  a 
brief  for  appellant: 

Jurisdiction  to  hear  and  determine  such 
suits  as  this  against  the  Texas  A  Pacific 
Railway  Company  was  expressly  vested  in 
the  appropriate  Federal  courts  by  the  act 
of  Congress  incorporating  the  company. 

Smith  V.  Union  P.  R.  Co.  2  DiU.  278, 
Fed.  Gas.  No.  18,121;  Bauman  ▼.  Union  P. 
R.  Co.  3  DiU.  367,  Fed«  Cas.  No.  1,117;  Pa- 
cific R.  Removal  Cases,  115  U.  S.  1,  24,  20 
L.  ed.  310,  327,  5  Sup.  Ct.  R^.  1113;  Re 
Dunn,  212  U.  S.  374,  384,  53  L.  ed.  558, 
562,  20  Sup.  Ct.  Rep.  200;  Osbom  y.  Bank 
of  United  States,  0  Wheat.  738,  6  L.  ed. 
204;  Magill  v.  Parsons,  4  Conn.  817. 

As  a  matter  of  practical  fact,  with  which 
Congress  could  deal  as  such,  Federal  in- 
corporation is  a  ground  of  Federal  jurisdic- 
tion. 

Magee  t.  Union  P.  R.  Co.  2  Sawy.  447» 
Fed.  Cas.  No.  8,045;  Union  P.  R.  Co.  ▼. 
MoComb,  17  BUtcUf.  510,  1  Fed«  700;  Texas 
&  P.  R.  Co.  V.  MeAllister,  50  Tex.  340; 
Myers  v.  Union  P.  R.  Co.  16  Fed.  202;  Pa- 
cific R.  Removal  Osses,  115  U.  S.  1,  20  L.  ed. 
310,  5  Sup.  Ct.  Rep.  1113;  Leather  Bifrs. 
Nat.  Banlc  ▼.  Cooper,  120  U.  S.  778,  30  L. 
ed.  816,  7  Sup.  Ct.  Rep.  777;  Petri  ▼.  Com- 
mercial Nat.  Bank,  142  U.  S.  644,  85  L.  ed. 
1144,  12  Sup.  Ct.  Rep.  325;  Butier  v.  Na- 
tional Home,  144  U.  S.  64,  36  L.  ed.  346,  12 
Sup.  Ct  R^.  581;  Washington  ft  I.  R.  Co. 
▼.  CoBur  lyAlene  R.  &  NaT.  Co.  160  U.  & 
77,  40  L.  ed.  346,  16  Sup.  Ct  Rep.  231; 
Texas  &  P.  R.  Co.  v.  Cody,  166  U.  8.  606,  41 
L.  ed.  1182,  17  Sup.  Ot  Rep.  703,  1  Am. 
Neg.  Rep.  763;  Continental  Nat  Bank  v. 
Buford,  101  U.  8.  110,  48  L.  ed.  UO,  24 
Sup.  Ct  Rep.  54;  Taxas  ft  P.  R.  Co.  v.  Arch- 

141  V.  8. 


1015. 


BANKERS  TRUST  qp.  T.  TBXA6  ft  P.  R.  00. 


ibald,  170  U.  S.  665,  42  L.  ed.  1188,  18  Sup. 
Ct.  Rep.  777,  4  Am.  Neg.  Rep.  746;  Texas 
ft  P.  R.  Co.  V.  Barrett,  166  U.  S.  617,  41 
L.  ed.  1136,  17  Sup.  Ct  Rep.  707,  1  Am. 
Neg.  Rep.  745;  Texaa  ft  P.  R.  Co.  v.  Behy- 
xi\jer,  189  U.  S.  468,  47  L.  ed.  905,  23  Sup. 
Ct.  Rep.  622,  13  Am.  Neg.  Rep.  695;  Char- 
nock  V.  Texas  ft  P.  R.  Co.  194  U.  S.  432,  48 
L.  ed.  1037,  24  Sup.  Ct.  Rep.  671;  Texas  ft 
P.  R.  Co.  v.  DashieU,  198  U.  S.  521,  49  L. 
ed.  1150,  25  Sup.  Ot.  Rep.  737,  18  Am.  Neg. 
Rep.  679;  Texas  ft  P.  R.  Co.  v.  Gentry,  163 
U.  S.  353,  41  1m  ed.  186,  16  Sup.  Ct.  Rep. 
1104;  Texas  ft  P.  R.  Co.  v.  Swear ingen,  196 
U.  S.  51,  49  L.  ed.  382,  25  Sup.  Ct.  Rep.  164, 
17  Am.  Neg.  Rep.  422;  Texas  ft  P.  R.  Co. 
V.  Watson,  190  U.  S.  287,  47  L.  ed.  1057,  23 
Sup.  Ct.  Rep.  681;  Texas  ft  P.  R.  C6.  v. 
Eastin,  214  U.  S.  153,  53  L.  ed.  946,  29  Sup. 
Ct.  Rep.  564;  Texas  ft  P.  R.  Co.  v.  Howell, 
224  U.  S.  577,  56  L.  ed.  892,  32  Sup.  Ct. 
Rep.  601 ;  Texaa  ft  P.  R.  Co.  v.  Harvey,  228 
U.  S.  319,  57  L.  ed.  852,  33  Sup.  Ct.  Rep. 
518;  Texas  ft  P.  R.  Go.  v.  Stewart,  228  U. 
S.  357,  57  L.  ed.  875,  33  Sup.  Ct.  Rep.  548; 
Texas  ft  P.  R.  Co.  v.  Rosborough,  235  U.  S. 
429,  59  L.  ed.  299,  35  Sup.  Ct.  Rep.  117; 
Texas  ft  P.  R.  Co.  v.  HiU,  237  U.  S.  208,  59 
L.  ed.  918,  35  Sup.  Ct.  Rep.  575;  Texas  ft 
P.  R.  Co.  v.  Bigger,  239  U.  S.  330,  ante,  310, 
30  Sup.  Ct.  Rep.  127. 

A  general  act  will  not  be  held  to  repeal  a 
provision  of  an  earlier  special  act,  unless 
the  intention  of  Congress  to  accomplish 
such  repeal  is  unmistakably  manifest. 

Potter's  Dwarr.  Stat.  2d  ed.  532;  Sedgw. 
Stat,  ft  Const.  Law,  2d  ed.  97 ;  Maxwell,  In- 
terpretation of  Statutes,  5th  ed.  131,  285, 
291;  Real's  Rules  of  "LegAl  Interpretation, 
2d  ed.  463;  Endlich,  Interpretation  of  Stat- 
utes, §§  223,  228,  229;  1  Sutherland,  SUt. 
Constr.  2d  ed.  §g  274,  275;  Black,  Constr. 
ft  Interpretation  of  Laws,  2d  ed.  328; 
Broom,  Legal  Maxims,  8th  ed.  19;  Ex  parte 
Crow  Dog  (Ex  parte  Kang-Gi-Shun-Oa) 
109  U.  S.  556,  27  L.  ed.  1030,  3  Sup.  Ct 
Rep.  396;  Rodgers  v.  United  States,  185  U. 
S.  83,  46  L.  ed.  816,  22  Sup.  Ct.  Rep.  582; 
United  States  v.  Nix,  189  U.  S.  199,  47  L. 
ed.  775,  23  Sup.  Ct.  Rep.  495. 

For  the  purpose  of  ascertaining  the  in- 
tent of  Congress,  it  is  proper  to  consider 
the  develc^ment  of  the  act  itself,  the  re- 
ports of  committees  relative  thereto,  and 
other  similarly  definite  and  reliable  indicia. 
Church  of  the  Holy  Trinity  v.  United 
States,  143  U.  S.  457,  464,  36  L.  ed.  226, 
229,  12  Sup.  Ct.  Rep.  511;  Binns  v.  United 
States,  194  U.  S.  486,  495,  48  L.  ed.  1087, 
24  Sup.  Ct.  Rep.  816;  United  States  v. 
Nakashima,  87  C.  C.  A.  646,  160  Fed.  842; 
Symonds  t.  St  Louis  ft  S.  E.  R.  Co.  192 
Fed.  353. 

It  also  is  proper,  in  interpreting  a  ttat- 
•0  Ii.  ed. 


ute,  to  consider  the  environment,  the  his- 
tory of  the  times,  and  the  particular  evil 
which  was  pressing  upon  the  attention  of 
Congress^  and  for  which  it  was  seeking  a 
remedy.  For  this  purpose  the  court  may 
avail  itself  of  all  accessible  sources  of  in- 
formation, including  the  proceedings  and 
debates  in  Congress. 

Church  of  the  Holy  Trinity  v.  United 
States,  143  U.  S.  457,  463,  464,  36  L.  ed.  226, 
229,  230,  12  Sup.  Ct  Rep.  511;  Standard 
Oil  Co.  V.  United  States,  221  U.  S.  1,  60,  55 
L.  ed.  619,  641,  34  L.R.A.(N.S.)  834,  31 
Sup.  Ct.  Rep.  502,  Ann.  Cas.  1912D,  734; 
United  States  v.  Union  P.  R.  Co.  91  U.  S. 
72,  79,  23  L.  ed.  224,  228;  Taylor  v.  United 
States,  81  C.  C.  A.  197,  152  Fed.  1;  Sym- 
onds V.  St.  Louis  ft  S.  E.  R.  Co.  192  Fed. 
353;  Maxwell,  Interpretation  of  Statutes, 
5th  ed.  37;  Black,  Constr.  ft  Interpreta- 
tion of  Laws,  2d  ed.  §  91. 

A  railroad  company  has  only  such  power 
to  mortgage  its  property  essential  to  the 
performance  of  its  public  duties  as  its 
charter  and  other  governing  laws  confer, 
expressly  or  by  necessary  implication. 

Jones,  Corporate  Bonds  ft  Mortgages,  §§ 
1-4;  Baldwin,  Am.  R.  Law,  463;  Com.  v. 
Smith,  10  Allen,  448,  87  Am.  Dec  672. 

Authority  for  each  provision  relied  upon 
by  the  plaintiff  in  a  suit  to  enforce  a  rail- 
way mortgage,  either  shown  by  express  aver- 
ment or  judicially  noticed  by  the  court,  is 
an  essential  element  of  the  plaintiff's  bill. 

Frye  v.  Bank  of  Illinois,  10  111.  332;  In- 
ternational ft  G.  N.  R.  Co.  V.  Underwood, 
67  Tex.  589,  4  S.  W.  216;  East  line  ft  R. 
River  R.  Co.  v.  Rushing,  69  Tex.  307,  6 
S.  W.  834,  6  Am.  Neg.  Cas.  554. 

A  question  determinable  by  the  interpre- 
tation and*  application  of  an  act  of  Con- 
gress is  a  Federal  question. 

Ames  V.  Kansas,  111  U.  S.  449,  28  L.  ed. 
482,  4  Sup.  Ct  Rep.  437;  Howard  v.  United 
States,  184  U.  S.  676,  46  L.  ed.  754,  22  Sup. 
Ct.  Rep.  543;  Cummings  v.  Chicago,  188  U. 
S.  410,  47  L.  ed.  525,  23  Sup.  Ct  Rep.  472 ; 
Male  V.  Atchison,  T.  ft  S.  F.  R.  Co.  240  U. 
S.  97,  ante,  544,  36  Sup.  Ct.  Rep.  851 ;  Ore- 
gon V.  Three  Sisters  Irrig.  0>.  158  Fed. 
346;  Bowers  v.  First  Nat  Bank,  190  Fed. 
676;  McGoon  v.  Northern  P.  R.  Co.  204  Fed. 
998. 

It  is  not  essential  to  the  existence  of  Fed- 
eral jurisdiction  by  reason  of  the  presence 
of  A  Federal  question  that  the  litigation 
Anally  turn  upon  such  question. 

Pacific  R.  Removal  Cases,  115  U.  S.  1,  29 
L.  ed.  319,  5  Sup.  Ct  Rep.  1113;  Re  Met- 
ropolitan R.  Receivership  (Re  Reisenberg) 
208  U.  S.  90,  52  L.  ed.  403,  28  Sup.  Ct.  Rep. 
219;  Male  v.  Atchison,  T.  ft  S.  F.  R.  Co.  240 
U.  S.  97,  ante,  544,  36  Sup.  Ct  Rep.  351; 
Walker  t.  Windsor  Nat  Bank,  6  C.  C.  A. 


SUPBEHB  COURT  OF  THE  UNITED  STATES. 


421,  6  U.  S.  App.  423,  M  Fed.  7S;  Huff  t. 
Union  Nat.  Bkok,  ITS  Fed.  333. 

CoogTMS  hu  taken  awAf  from  the  Fed- 
eral court*  their  juriidictioo  of  the  litiga- 
tions of  national  banks,  resting'  upon  the 
■ole  ground  that  such  banks  are  organised 
under  an  act  of  Congreis,  b^  acta  which 
differ  widely  in  form  from  the  act  of  Jan- 
varj  28,  1810,  but  to  which  this  court  has 
attributed  in  this  respect  the  Mune  net  re- 
■ult  that  it  literally  expreased  in  the  act 
of  IBIS. 

Leather  Mfrs.  Nat.  Bank  v.  Ckwper,  120 
U.  S.  778,  30  L.  ed.  816,  7  Sup.  Ct.  Bep. 
777;  Petri  v.  Oommercial  Nat  Bank,  142 
U.  B.  844,  36  L.  ed.  1144,  12  Sup.  Ct.  Bep. 
S26;  Continental  Nat.  Bank  v.  Buford,  191 
U.  S,  119,  48  L.  ed.  IIS,  24  Sup.  Ct.  Rep. 
M;  Boners  v.  First  Nat,  Bank,  IBO  Fed. 
•76;  Walker  v.  Windsor  Nat.  Bank,  S  C. 
a  A,  421,  5  U.  S.  App.  423.  S6  Fed.  78; 
Huff  V.  Union  Nat.  Bank,   173  Fed.  333. 

The  diversity  of  cltiMnahip  is  sufficiently 
■hown  by  the  record. 

Sun  Printing  v.  Pub.  Aaso.  *.  Edwards, 
1&4  U.  8.  377,  48  L.  ed.  1027,  24  Sup.  Ct. 
Rep.  OSQ;  Marshall  t.  Baltimore  ft  0.  R. 
Co.  16  How.  314,  14  L.  ed.  963;  Baltimore 
ft  0.  S.  W.  R.  Co.  V.  Davis,  79  C.  C.  A.  139, 
149  Fed.  191;  Uathieson  Alkali  Works  v. 
Hathieson,  60  C.  (J.  A.  129,  160  Fed.  241. 

The  Texas  ft  Pacific  Railway  Company  ie 
ft  citizen  of  Texas  for  the  purpose  of  juris- 
diction of  the  Federal  courts  in  thin  cause. 

Bank  of  United  States  t.  Dereaux,  6 
Cranch,  61,  3  L.  ed.  38;  Hope  Ins.  Co.  t. 
Boardnwn,  6  Cranch,  57,  3  L.  ed.  30;  Louis- 
tU1«,  C.  ft  C.  R.  Co.  v.  Letson,  2  How.  497, 
11  L.  ed.  363)  Covington  Drawbridge  Co.  v. 
Shepherd,  20  How.  227,  233,  IS  L.  ed.  896, 
808;  Shaw  v.  Quiney  Min.  Co.'  146  U.  S. 
444,  461,  36  L.  ed.  768.  772,  12  Sup.  Ct. 
Rep.  936;  St.  Louis  Nat.  Bank  v.  Allen.  2 
McCrvy,  92,  6  Fed.  551;  Manufacturers' 
Nat.  Bank  v.  Baack,  8  Blatchf.  137,  Fed. 
Cas.  No.  9,062;  Orange  Nat.  Bank  r.  Tra- 
»er,  7  Sawy.  210,  7  Fed.  146;  National  Park 
Bank  t.  Nichols,  2  Biss.  146.  Fed.  Cas.  No. 
10,047;  Main  t.  Second  Nat.  Bank,  6  Bisa. 
26.  Fed.  Cas.  No.  8,976;  Union  P.  R.  Co.  v. 
Harris.  158  U.  B.  326,  39  L.  ed.  1003,  16 
Sup.  Ct.  Rep.  843,  10  Am.  Neg.  Cas.  685; 
Northern  P.  B.  Co.  v.  Amato,  144  U.  S.  466, 
3fl  L.  ed.  606,  12  Sup.  Ct.  Rep.  T40;  Balti- 
more ft  0.  R.  Co.  ▼.  Koontz,  104  U.  S.  5,  26 
L.  ed.  643;  Re  Dunn,  212  U.  S.  S74,  63  L. 
ed.  568,  29  Sup.  Ct  Rep.  290. 

Messrs.  Oeorge  Thompson  and  Henry 
G.  Coke  argued  the  cause,  and,  with  Messrs. 
Arthur  J.  Shores.  Thomas  J.  Freeman,  and 
Alexander  S.  Coke,  filed  a  brief  tor  ap- 
pellees: 

Can  jurisdiction  be  maintained  by  Tirtue 


Texas   ft   Pacific   Railway   Companyt 

Bank  of  United  Stetea  t.  Dereaux,  6 
Cranch,  61,  3  L.  ed.  38;  Oeborn  t.  Bank  of 
United  Statea,  9  Wheat  738,  6  L.  ad.  204; 
Pacific  R.  Removal  Cases,  116  U.  B.  I,  2> 
L.  ed.  319,  6  Sup.  a.  Rep.  1113;  Rodgtrs 
V.  United  States,  18G  U.  S.  83,  46  L.  ed. 
BI6,  22  Bup.  Ct.  Rep.  582;  Smith  t.  Uniia 
P.  R.  Co.  2  Dill.  273.  Fed.  Cas.  No.  13J21. 

Can  jurisdiction  be  maintained  by  virtue 
of  a  Federal  question  I 

Butler  V.  Shafer.  87  Fed.  161;  Cooke  t. 
Avery,  147  U.  S.  375,  37  L.  ed.  209,  13  Sup. 
Ct.  Rep.  340;  Fittgerald  v.  HiaM>uri  P.  R. 
Co.  45  Fed.  812;  Little  York  Oold-Waahing 
k  WaUr  Co.  v.  Keyea,  96  U.  S.  199,  24  L. 
ed.  656;  Huff  v.  Union  Nat  Bank,  173  Fed. 
333;  Herrmann  v.  Edwards,  238  U.  S.  107, 
59  L.  ed.  1224.  35  Sup.  Ct.  Rep.  839;  Joy 
v.  St  Louis,  201  U.  S.  332,  50  L.  ed.  77S, 
26  Sup.  Ct.  Rep.  478;  Leather  Mfra.  Nat 
Bank  V.  Cooper,  120  U.  S.  7T8,  30  L.  ed. 
Sla,  7  Sup.  Ct  Rep.  777;  Lovell  v.  Newman, 
227  U.  8.  412,  57  L.  ed.  677,  33  Sup.  OL 
Rep.  376;  McGo<Hi  v.  Northern  P.  R.  Ca 
204  Fed.  90S;  Norton  v.  Whiteside,  239  V. 
8.  144,  ante.  186,  36  Sup.  Ct.  Rep.  97;  Oi- 
boro  V.  Bank  of  United  States,  9  Wheat 
738,  0  L.  ed.  204;  South  Carolina  v.  Vir- 
ginia-Carolina Chemical  Co.  117  Fed.  727: 
Shulthis  V.  McDougal,  226  U.  S.  601,  5S  L. 
ed.  1206,  32  Sup.  Ct.  Rep.  704;  Shoshone 
Min.  Co.  V.  Rutter,  177  U.  S.  506,  44  L.  ed 
864,  20  Sup.  Ct,  Rep.  726;  Waahington  v. 
Island  Line  Co.  117  Fed.  777 ;  Foster.  Fed. 
Pr.  %  24. 

Can  jurisdiction  be  maintained  on  ths 
ground  of  diveraity  of  citiEenshipt 

Abercrombie  v.  Dupuis,  I  Oranch,  343.  ! 
L.  ed.  129;  Bingham  v,  Cabot,  3  Dall.  383, 
1  L.  ed.  646;  Brown  v.  Keene,  8  Pet.  112, 
8  L.  ed.  885;  Re  Dunn,  212  U.  S.  374,  63  L 
ed.  658,  29  Sup.  Ct  Rep.  299;  Dade  Coal 
Co.  V.  Haslett,  83  Ga.  549,  10  S.  E.  433: 
Grace  v.  American  Cent.  Ins.  Co.  109  U.  S. 
278,  27  L.  ed.  932,  3  Sup.  Ct.  Rep.  207;  Han- 
ford  V.  Davies,  103  U.  8.  273,  4.  L.  ed.  167. 
16  Sup.  Ct.  Rep.  1061;  Joesey  v.  Georgia  t 
A.  R.  Co.  102  Ga.  706,  28  S.  E.  £73;  Na- 
tional Park  Bank  v.  Nichols,  4  Biss.  316, 
Fed.  Cas.  No.  10,048;  New  Orleans  v.  Win- 
ter, 1  Wheat.  91,  4  L.  ed.  44;  Texaa  ft  P. 
R.  Co.  V.  Interstate  Commerce  Ooouni*- 
sion,  162  U.  S.  107,  40  L.  ed.  940,  6  Intwa 
Com.  Rep.  405,  16  Sup.  Ct.  Rep.  666,  4 
Inters.  Com.  Rep.  408.  6  C.  C.  A.  653,  20 
U.  S.  App.  1,  57  Fed.  948. 

Messrs.  Winslow  8.  Pierce  and  Lawrenes 
Greer  also  tiled  a  brief  on  behalf  of  ap- 
pellee the  Texaa  ft  Pacific  Railway  CaD> 
pany. 

141  V.  S. 


1915.                          BANKERS  TRUST  CO.  y.  TEXAS  &  P.  R.  00.  101-^04 

Mr.  Justice  Van  Devantcr  delivered  the  |  grounds  that  the  act  of  January  28,  1015, 

opinion  of  the  court:  chap.   22,   §   5,   38   Stat,   at  L.   803,   pro- 

This  is  a  suit  to  foreclose  a  railroad  mort-  vides :  "No  court  of  the  United  States 
gage  and  for  other  incidental  relief.  It  was  shall  have  jurisdiction  of  any  action  or 
brought  in  the  district  court  for  the  north-  suit  by  or  against  any  railroad  company 
em  district  of  Texas  December  27,  1915,  upon  the  ground  that  said  railroad  company 
was  dismissed  by  that  court  for  want  of  was  incorporated  under  an  act  of  Con- 
jurisdiction,  and  is  here  upon  a  direct  ap-  gress;"  and  that,  apart  from  the  Texas  & 
peal  under  §  238  of  the  Judical  Code  [36  Pacific  Railway  [303]  Company's  incorpo- 
Stat.  at  L.  1157,  chap.  231,  Comp.  Stat,  ration  under  congressional  enactments,  the 
1913,    §  1215].  suit  is  not  one  arising  under  the  Oonstitu- 

The   bill   alleges  thfit  the  plaintiff,   the  tion  or  any  law  of  the  United  States,  and 

trustee  under  the  mortgage,  is  a  New  York  is    not    one   between    citizens    of    different 

corporation  and  "a  citizen  of  said  state;"  states.    The  motion  was  sustained  and  the 

that  the  Texas  &  Pacific  Railway  Company,  bill  was  dismissed  as  to  both  defendants, 

one    of    the    defendants,    is    a   corporation  The  plaintiff  insists  that,  in  refusing  to 

created  and  existing  under  the  laws  of  the  entertain  the  suit,  the  district  court  erred 

United  States,  has   its  principal  place  of  because    (1)    the   provision    before   quoted 

business   and   its   principal    operating   and  from  §  1  of  the  act  of  March  3, 1871,  enables 

general    offices    in    the    northern    district  the  Texas  k  Pacific  Railway  Company  to  sue 

of  Texas,  and  "is  a  resident  and  inhabitant"  and  be  sued  in  any  court  of  law  or  equity 

of  that  district;  that  the  New  Orleans  Pa-  within    the    United    States;     (2)    the    bill 

cific  Railway  Company,  the  other  defendant,  shows  that  the  suit  is  one  arising  under 

[302]   is  a  Louisiana  corporation  and  "a  the  laws  of  the  United  States  apart  from 

citizen  of  said  state;"  that  one  of  the  acts  the  incorporation  of  the  Texas  &  Pacific 

of  Congress  under  which  the  Texas  &  Pacific  Railway  Company  under  acts  of  Congress, 

Railway    Company    was   created    and    now  and  therefore  the  act  of  January  28,  1915, 

exists    (act  Mardi   3,   1871,   chap.    122,   §  is  not  controlling,  and   (3)   the  bill  shows 

1,  IG  Stat,  at  L.  573)    provides  that  such  that  the  suit  is  between  citizens  of  different 

company  "by  that  name    .    .     .    shall  be  states. 

able  to  sue  and  be  sued,  plead  and  be  im-  j    Upon  reading  §  1  of  the  act  of  1871 

pleaded,    defend    and    be    defended,    in    all  j^  jg  pj^j^  that  the  words  "by  that  name 

courts  of  law  and  equity  within  the  United  gj,^ll  ^^  ^y^i^  ^  g^^  an^l  y^  gued. 

States;"   that   under   that  act  and   desig-  .^^  ^^^  y^^  impleaded,  defend  and  be  de- 

nated  amendatory  and  supplemental  acts  of  ^^^^^  .^  ^,i  ^^^^  ^,  1^^  ^^        it    ^jth- 

^TT  ^^""W  ^flh  "^T  o^/;  il  l^l'  in  the  United  States"  were  not  intended 

**  t'  fi'  ^t"'\o'  W.l'  '^^^-  Ta  il  «w  in  themselves  to  confer  jurisdiction  upon 

at  L.  698;  June  22, 1874,  chap.  406,  18  Stat  ^^^^     ^^  ^^  ^^^^  ^^         Congress 

f^^  ^®l^  ^'^  ^'TP^SJc'*"!  ^  """"m  *"^  was  not  then  concerned  with  the  jurisdic- 

hold  on  February  1.  1888,  certain  railroad  ^.^^  ^^  ^            ^^^  ^,^^  ^^  ^^^jj.^  ^^ 

properties  and  interests  in  Texas  and  Louis-  ^^^^^  ^^  ^^^  corporation  which  it  was  ere- 

tana;  that  on  that  date  said  company     act-  *            ^^^  evidently  all  that  was  intended 

ing  m  pursuance  of  due  authority  conferred  ^^^\^  ^^^^^^  this  corporation  capable  of 

upon  It  by  said  acts  of  Congress,''  the  rele-  ^^^            ^^^  ^^.^^  corporate  name 

vant  Portiomi  of  which  are  copied  into  the  .^    «       ^^^^^   ^^   j^^  ^^^   equity-Federal, 

bill,  and  the  New  Orleans  Pacific  Railway  ^^^  ^^^  territorial-whose  jurisdiction  as 

Company,  acting  in  pursuance  of  authority  ^^h^^wise  competently  defined  was  adequate 

conferral  upon  it  by  the  laws  of  Louisiana,  ^  ^^^  occasion.    Had  there  been  a  purpose 

executed    and    delivered    the    mortgage    in  to  take  suits  by  and  against  the  corporation 

suit  covering  these  railroad  properties  and  ^^^  ^^  ^^^  ^^^^j  jurisdictional  restrictions 

mtereste  a  substantial  part  of  which  IS  sit-  ^^,^^.        ^^    ^^^    ^^^^^^    ^^    ^^^    ^^.^    ^^^ 

uate  m  thp  northern  district  of  Texas;  that  ^^^^^  ^  controversy,  and  the  venue,  it 
the  mortgage  was  duly  filed  and  recorded 
in  the  Department  of  the  Interior  pursuant 
to  such  acts  of  Congress;  that  the  mort- 
gagors have  defaulted  in  the  performance 
of  the  terms  and  conditions  of  the  mort- 
gage, and  that  the  suit  involves  the  requisite 
jurisdictional  amount  and  "arises  under  the 
Constitution  and  laws  of  the  United 
SUtes." 

By  a  motion  to  dismiss,  the  Texas  ft 
Pacific  Railway  Company  challenged  the  ju- 
risdiction of  the  district  court  upon  the 
•0  li.  ed. 


seems  reasonable  to  believe  that  Congress 
would  have  expressed  that  purpose  in  al- 
together different  words.  The  case  of  Bank 
of  United  States  v.  Deveaux,  5  Cranch,  61, 
85,  3  L.  ed.  38,  44,  is  well  in  point.  A 
[304]  provision  in  the  act  incorporating 
the  bank  (chap.  10,  §  3,  1  Stat,  at  L.  191), 
much  like  that  here  relied  upon,  was  in- 
voked as  in  itself  entitling  the  buik  to  sue 
in  a  circuit  court  of  the  United  States,  but 
that  view  was  rejected  in  an  opinion  by 
Chief  Justice  Marshall,  wherein  it  was  said*. 


804-306 


SUPREME  OOURT  OF  THE  UNITED  STATES. 


Oor.  Tkuc. 


'That  act  creates  the  corporation,  gives 
it  a  capacity  to  make  contracts  and  to  ac- 
quire property,  and  enables  it  'to  sue  and 
be  sued,  plead  and  be  impleaded,  answer  and 
be  answered,  defend  and  be  defended,  in 
courts  of  record,  or  any  other  place  whatso- 
ever.' This  power,  if  not  incident  to  a  cor- 
poration, is  conferred  by  every  incorporat- 
ing act,  and  is  not  understood  to  enlarge 
the  jurisdiction  of  any  particular  court, 
but  to  give  a  capacity  to  the  corporation  to 
appear,  as  a  corporation,  in  any  court 
which  would,  by  law,  have  cognizance  of 
the  cause,  if  brought  by  individuals.  If 
jurisdiction  is  given  by  this  clause  to  the 
Federal  courts,  it  is  equally  given  to  all 
courts  having  original  jurisdiction,  and  for 
all  sums,  however  small  they  may  be." 

Afterwards,  when  the  second  bank  of  the 
United  States  was  established,  a  provision 
was  inserted  in  the  incorporating  act  (chap. 
44,  §  7,  3  Stat,  at  L.  266),  enabling  the 
bank  to  sue  and  be  sued  "in  all  state  courts 
having  competent  jurisdiction,  and  in  any 
circuit  court  of  the  United  States;"  and  in 
Osbom  V.  Bank  of  United  States,  9  Wheat. 
738,  6  L.  ed.  204,  it  was  held  (pp.  816-818) 
that  this  provision,  unlike  that  in  the  prior 
act,  amounted  to  an  express  grant  of  jur- 
isdiction to  the  circuit  courts,  and  (pp.  823 
et  seq.)  was  within  the  power  of  Congress 
under  the  Constitution.  It  was  in  the  light 
of  these  differing  precedents  in  legislation 
and  of  the  resulting  difference  in  their  in- 
terpretation that  Congress  framed  the  act 
of  1871.  While  that  act  does  not  literally 
follow  either  precedent,  its  words  have  the 
same  generality  and  natural  import  as  did 
those  in  the  earlier  bank  act,  and  this 
strengthens  the  conclusion  that  Congress  in- 
tended thereby  to  give  to  the  Texas  k 
[305]  Pacific  Railway  Company  only  a 
general  capacity  to  sue  and  be  sued  in 
courts  of  law  and  equity  whose  jurisdiction 
as  otherwise  defined  was  appropriate  to  the 
occasion,  and  not  to  establish  an  exceptional 
or  privileged  jurisdiction. 

2.  Under  the  Constitution  Congress  un- 
doubtedly possesses  power  to  invest  the  sub- 
ordinate Federal  courts  with  original  ju- 
risdiction of  all  suits  at  law  or  in  equity 
arising  under  the  Constitution,  laws,  or 
treaties  of  the  United  States,  and,  if  the  act 
of  February  13,  1801,  chap.  4,  §  11,  2  Stat, 
at  Lw  89,  be  not  noticed  b^use  of  its  early 
repeal  (chap.  8,  §  1,  2  Stat,  at  L.  132),  it 
is  true,  as  sometimes  has  been  said,i  that 
this  power  was  broadly  exercised  for  the 
first  time  by  the  act  of  March  3,  1875,  diap. 

1  Tennessee  y.  Union  ft  Planters'  Bank, 
162  U.  S.  464,  459,  38  L.  ed.  511,  513,  14 
Sup.  Ct.  Rep.  654;  Continental  Nat.  Bank 
V.  Buford,  191  U.  S.  119,  122,  48  L.  ed. 
219,  120,  24  Sup.  Ct.  Rep.  64. 
J014 


137,  §  1,  18  SUt.  at  L.  470.  By  that  act 
Congress  in  express  terms  gave  the  circuit 
courts  original  jurisdiction,  concurrent 
with  the  courts  of  the  several  states,  of  all 
suits  of  that  nature,  where  the  value  of  the 
matter  in  dispute,  exclusive  of  costs,  wss 
in  excess  of  $500,  and  this  juris4iction  re- 
mained with  the  circuit  courts  until  Jan- 
uary 1,  1912,  when  they  were  abolished, 
save  as  the  act  of  March  3,  1887,  chap.  378, 
§  1,  24  Stat,  at  L.  552,  required  that  the 
value  of  the  matter  in  dispute,  exclusive 
of  interest  and  costs,  be  in  excess  of  $2,000. 
Upon  the  discontinuance  of  the  circuit 
courts  this  jurisdiction  was  transferred  to 
the  district  courts  by  §  24  of  the  Judicial 
Code  [36  Stat,  at  L.  1091,  chap.  231,  Comp. 
Stat.  1913,  §  991],  subject  to  a  restriction 
that  thereafter  the  value  of  the  matter  in 
controversy  should  exceed  $3,000,  exclusive 
of  interest  and  costs. 

As  long  ago  as  Osbom  v.  Bank  of  United 
States,  supra,  it  was  settled  that  a  suit  by 
or  against  a  corporation  chartered  by  ui 
act  of  Congress  is  one  arising  under  a  law  of 
the  United  States,  and  this  because,  as  was 
said  in  that  case,  pp.  823,  825:  "The  char- 
ter of  incorporation  [306]  not  only  creates 
it  [the  corporation],  but  gives  it  every  fac- 
ulty which  it  possesses.  The  power  to  ac- 
quire rights  of  any  description,  to  transact 
business  of  any  description,  to  make  con- 
tracts of  any  description,  to  sue  on  those 
contracts,  is  given  and  measured  by  its 
charter,  and  that  charter  is  a  law  of  the 
United  States.  This  being  can  acquire  no 
right,  make  no  contract,  bring  no  suit, 
which  is  not  authorized  by  a  law  of  the 
United  States.  It  is  not  <»ly  itself  the 
mere  creature  of  a  law,  but  all  its  actions 
and  all  its  rights  are  dependent  on  the  same 
law.  Can  a  being,  thus  constituted,  have  a 
case  which  does  not  arise  literally,  as  well 
as  substantially,  under  the  law?  Take  the 
case  of  a  contract,  which  is  put  as  the 
strongest  against  the  bank.  .  .  .  Hie 
act  of  Congress  is  its  foundation.  Tht 
contract  could  never  have  been  made,  but 
under  the  authority  of  that  act.  The  act 
itself  is  the  first  ingredient  in  the  case, 
is  its  origin,  is  that  from  which  every 
other  part  arises.  That  other  questions 
may  also  arise,  as  the  execution  of  the  eon- 
tract,  or  its  performance,  cannot  change 
the  case,  or  give  it  any  other  origin  than 
the  charter  of  incorporation.  The  action 
still  originates  in,  and  is  sustained  by,  that 
charter." 

After  the  act  of  March  3,  1876,  extended 
the  jurisdiction  of  the  circuit  courts  to 
cases  arising  under  the  laws  of  the  United 
States,  the  ruling  just  quoted  was  uniform- 
ly followed  and  applied  in  suits  by  and 

141  U.  6. 


1916. 


BANKERS  TRUST  CO.  v.  TEXAS  ft  P.  R.  CX). 


SOe-806 


agaiziBt  Federal  corporations  (Pacific  R. 
Removal  Cases,  115  U.  S.  1,  29  L.  cd.  319, 
6  Sup.  Ct.  Rep.  1113;  Petri  v.  Commercial 
Nat.  Bank,  142  U.  S.  644,  648,  35  L.  ed. 
1144,  1145,  12  Sup.  Ct.  Rep.  325;  Butler  v. 
National  Home,  144  U.  S.  64,  36  L.  ed.  346, 
12  Sup.  Ct.  Rep.  581 ;  Northern  P.  R.  Co.  v. 
Amato,  144  U.  S.  465,  471,  36  L.  ed.  506, 
508,  12  Sup.  Ct.  Rep.  740;  Texas  k  P.  R. 
Co.  V.  Cox,  145  U.  S.  693,  601,  36  L. 
ed.  829,  832,  12  Sup.  Ct.  Rep.  905;  Wash- 
ington ft  I.  R.  Co.  ▼.  Cceur  d'  Alene  R. 
ft  Nav.  Co.  160  U.  S.  77,  93,  40  L.  ed.  346, 
352,  16  Sup.  Ct.  Rep.  231;  Supreme  Lodge, 
K.  P.  y.  Kalinski,  163  U.  S.  289,  290,  41 
L.  ed.  163,  16  Sup.  Ct.  Rep.  1047;  Texas  ft 
P.  R.  Co.  V.  Swearingen,  196  U.  S.  51,  53, 
49  L.  ed.  382,  384,  25  Sup.  Ct.  Rep.  164,  17 
Am.  Neg.  Rep.  422 ;  Re  Dunn,  212  U.  S.  374, 
383,  384,  53  L.  ed.  558,  562,  29  Sup.  Ct. 
Rep.  299),  save  where  the  particular  suit 
was  withdrawn  or  excluded  from  that  juris- 
dicti<m  by  some  specific  enactment,  [307] 
like  that  of  July  12,  1882,  chap.  290,  §  4, 
22  Stat,  at  L.  162,  Comp.  Stat  1913,  §  9665, 
placing  most  of  the  suits  by  and  against  na- 
tional banks  in  the  same  category  with  suits 
by  and  against  banks  not  organized  under 
the  laws  of  the  United  States.  Leather 
Mfrs.  Nat  Bank  v.  Cooper,  120  U.  S.  778, 
781,  30  L.  ed.  816,  818,  7  Sup.  Ct  Rep.  777 ; 
Continental  Nat.  Bank  v.  Buford,  191  U.  S. 
119,  122,  48  L.  ed.  119,  120,  24  Sup.  a.  Rep. 
54. 

It  results  that  if  the  general  jurisdic- 
tional provision,  now  embodied  in  §  24  of 
the  Judicial  Code,  respecting  suits  arising 
under  the  laws  of  the  United  States,  were 
alone  to  be  considered,  it  would  have  to  be 
held  that  the  district  court  had  jurisdiction 
of  the  present  suit  as  one  falling  within  that 
class  by  reason  of  the  incorporation  of  the 
Texas  ft  Pacific  Railway  Company  under  a 
law  of  the  United  States.  But  §  5  of  the 
act  of  January  28,  1915,  must  also  be  con- 
sidered. It  is  a  later  enactment,  is  shown 
by  the  title  to  be  amendatory  of  the  Judicial 
Code,  and,  as  has  been  seen,  declares  that 
"no  court  of  the  United  States  shall  have 
jurisdiction  of  any  action  or  suit  hy  or 
against  any  railroad  company  upon  the 
ground  that  said  railroad  company  was  in- 
corporated under  an  act  of  Congress." 
These  are  direct  and  comprehensive  words, 
and,  when  read  in  the  light  of  the  settled 
course  of  decision  just  mentioned,  must  be 
taken  as  requiring  that  a  suit  by  or  against 
a  railroad  company  incorporate  under  an 
act  of  Congress  be  not  regarded,  for  juris- 
dictional purposes,  as  arising  under  the 
laws  of  the  United  States,  unless  there  be 
60  li.  ed. 


some  adequate  ground  for  so  regarding  it 
other  than  that  the  company  was  thu.:  in- 
corporated. Plainly,  there  was  a  purpose 
to  effect  a  real  change  in  the  jurisdiction  of 
such  suits.  Counsel  for  plaintiff  concede 
that  this  is  so.  But  they  urge  that  all 
that  is  intended  is  to  eliminate  the  mere 
creation  of  a  railroad  corporation  under  an 
act  of  Congress  as  a  ground  for  regarding 
the  suit  as  arising  under  the  laws  of  the 
United  States.  In  this  there  is  an  evident 
misapprehension  of  what  constitutes  incor- 
poration, as  [308]  also  of  the  real  basis  of 
the  jurisdiction  affected.  A  corporation  is 
never  merely  created.  Being  artificial,  pos- 
sessing no  faculties  or  powers  save  such  as 
are  conferred  by  law,  and  having  in  legal 
contemplation  no  existence  apart  from  them, 
its  incorporation  consists  in  giving  it  indi- 
viduality and  endowing  it  with  the  facul- 
ties and  powers  which  it  is  to  possess.  It 
is  upon  this  theory  that  the  decisions  have 
proceeded.  The  ruling  has  been  that  a  suit 
by  or  against  a  Federal  corporation  arises 
under  the  laws  of  the  United  States,  not 
merely  because  the  corporation  owes  its 
creation  to  an  act  of  Congress,  but  because 
it  derives  all  of  its  capacities,  faculties,  and 
powers  from  the  same  source.  This  is 
shown  in  the  quotation  before  made  from 
Osbom  V.  Bank  of  United  States,  supra,  and 
also  in  the  following  excerpt  from  Shoshone 
Min.  Co.  V.  Rutter,  177  U.  S.  505,  509,  510, 
44  L.  ed.  864,  866,  867,  20  Sup.  Ct.  Rep.  726: 
"A  corporation  has  no  powers  and  can  in- 
cur no  obligations  except  as  authorized  or 
provided  for  in  its  charter.  Its  power  to  do 
any  act  which  it  asumes  to  do,  and  its  lia- 
bility to  any  obligation  which  is  sought  to 
be  cast  upon  it,  depend  upon  its  charter, 
and  when  such  charter  is  given  by  one  of  the 
laws  of  the  United  States  there  is  the  pri- 
mkrj  question  of  the  extent  and  meaning  of 
that  law.  In  other  words,  as  to  every  act 
or  obligation  the  first  question  is  whether 
that  act  or  obligation  is  within  the  scope 
of  the  law  of  Congress;  and  that  being  the 
matter  which  must  be  first  determined,  a 
suit  by  or  against  the  corporation  is  one 
which  involves  a  construction  of  the  terms 
of  its  charter;  in  other  words,  a  question 
arising  under  the  law  of  Congress."  And 
so,  when  due  r^ard  is  had  for  the  terms  of 
the  amendatory  section  of  1915  and  for  the 
real  basis  of  the  jurisdiction-  affected,  the 
conclusion  is  unavoidable  that  what  is  in- 
tended is  to  make  the  fact  that  a  railroad 
company  is  incorporated  under  an  act  of 
Congress, — that  is  to  say,  derives  its  exis- 
tence, faculties,  and  powers  from  such  an 
act, — an  entirely  negligible  factor  in  deter- 


MO,  810  SUPREME  OOURT  OF  THE  UNITED  STATES.  Oor.  TmM, 


mining  whether  a  suit  by  or  [300]  against 
the  company  is  one  arising  under  the  laws 
of  the  United  SUtes. 

Upon  examining  the  bill  in  the  present 
•nit,  it  is  certain  that  it  does  not  arise  un- 
der those  laws  apart  from  the  incorporation 
of  the  Texas  &  Pacific  Company  under  acts 
of  Congress.  We  say  ''acts"  of  Congress, 
because  the  original  act  was  amended  and 
•npplemented  by  three  others,  and  the  four 
constitute  the  company's  charter.  Portions 
thereof  are  copied  into  the  bill  as  showing 
that  the  mortgage  sought  to  be  enforced 
was  given  under  a  power  conferred  by  Con- 
gress, but  this  does  not  help  the  jurisdic- 
tion. As,  under  the  amendatory  section, 
the  fact  that  the  company  derives  its  exis- 


CHESAPEAKE  k  OHIO  RAILWAY  COM. 
PANY,  Plflf.  in  Err., 

V. 

JOHN  J.  DE  ATLEY. 

(See  S.  C.  Reporter's  ed.  310-318.) 

Master   and    servant  —  asstunptlon  of 
risk  —  extraordinary  hasard. 

1.  The  head  brakeman  of  a  freight 
train,  though  assuming  the  rides  normaUy 
incident  to  the  boarding  of  a  moving  train 
in  the  discharge  of  his  duties,  -does  not  as- 
sume the  risk  of  injury  involved  in  an  at- 
tempt to  board  a  train  operated  at  an  un- 
usually high  and  dangerous  rate  of  speed 
tmtil  made  aware  of  the  danger,  unless  the 
speed  and  consequent  danger  were  so  obvi- 
ous that  an  ordinarily  careful  person  in  his 
situation  would  have  observed  the  one  and 
tence  and  all  of  its  faculties  and  powers  appreciated  the  other. 
f»>m  a  Federal  charter  can»ot  avail  to  give  ' *'^:  ,S"Dl,Sr&»rct"lSo8.r'*  *"~*'  ^ 
jurisdiction,  it  is  obvious  that  to  dwell  up-  Trial  —  question  for  jnry  —  assumption 
on  the  fact  that  any  particular  power  comes  of  risk  —  extraordinary  basard. 
from  the  common  source  must  be  equally  un-  2.  It  is  for  the  jury  to  say  whether  the 

availing  ^^^  brakeman  on  a  freight  train  assumed 

rm.  ir  ^#  1  A*  V         rp   *.  c    1?     ^«  ^Isk  of  lujury  in  an  attempt,  in  the  dis- 

The  case  of  Male  v.  Atchison,  T.  k  S.  F.  ^ij^^ge  of  his  duties,  to  board  the  engine  of 
R.  Co.  240  U.  S.  97,  ante,  644,  36  Sup.  Ct.  his  train,  which  was  moving  directly  toward 
Rep.  351,  does  not  make  for  a  different  con-  him  at  a  speed  of  12  miles  per  hour, 
elusion,  because  it  was  not  a  suit  by  or  ^^^^p^^^^"^  fjjf  j  ^  ^'**^  ^'-  «•  ^  ^*««»^ 
against  a  railroad  company  incorporated  Trial' -' requited  instructions  —  as- 
under an  act  of  Congress,  and  because  it       sumption  of  risk. 

arose  and  was  pending  in  this  court  prior  3.  There  is  no  error  in  refusing  to  give 

to  the  amendatory  act  of  1915,  and  by  §  6    a  requested  instruction  upon  the  question 
of  that  act  was  excepted  from  its  provisions.    ?^  the  assumption  of  risk  which  deals  sol^ 
A    iTTv  XV      xv    •  -x  u  i.  :*•  Ij  w™  the  ordmary  risks  and  hazards,  and 

3.  Whether  this  is  a  suit  between  citizens  embodies  no  definition  of  such  risks  and 
of  different  states  turns  upon  whether  the  hazards,  nor  any  qualification  appropriate 
Texas  k  Pacific  company  is  a  citizen  of  to  the  particular  facts  of  the  case,  which 
Texas.    It  is  doubtful  that  the  pleader  in-    involves  a  question  of  extraordinary  hazard. 

tended  to  state  a  case  of  diverse  citizen-  ^^i^j;!^^^t'  fwS:]'^  ^""^  ^"-  ^'  *''  ^****^ 

ship,  but,  be  this  as  it  may,  we  are  of  opin- 

ion  that  the  company  is  not  a  citizen  of  any  '■    ^*  *'*•! 

state.     It  was  incorporated  under  acts  of  Argued  and  submitted  March   30  and  13, 

Congress,   not  under   state   laws;    and   its  1916.    Decided  May  22,  1016. 

activities   and   operations   were   not   to  be 

confined  to  a  single  state,  but  to  be  carried  T  ^  ERROR  to  the  Court  of  Appeals  of  the 

on,  as  in  fact  they  are,  in  different  itates.  \.*»^**^'  Kentucky  to  review  a  judgment 

Of  course  it  is  a  citizen  of  the  United  States  '1^'''^  *f  ™^  a  judgment  of  the  Circuit 

._   ..                 .,    .                    ..                 .     ,  Court  of  Mason  County,  m  that  state,  m 

in  the  sense  that  a  corporation  organized  ^^^^^  ^^  ^^.^^^  ^  ^^  ^^^.^^  under  the 

under  the  Jawg  o^  one  of  the  states  is  a  ^^^^^^j  employers'  liability  act.     Reversed 

citizen  of  that  state,  but  it  is  not  withm  the  ^nd  remanded  for  further  proceedings. 

[310]  clause  of  the  14th  Amendment  which  See  same  case  below,  169  Ky.  687,  167  S. 

declare^  that  native  bom  and  naturalized  y/^  933 

dtisens  of  the  United  States  shall  be  citi-  The  facts  are  stated  in  the  opinion. 

sens  of  the  state  wherein  they  reside.    Nor 

has  Congress  said  that  it  shall  be  regarded  ,  Note.— On  wten^t  non  fit  injuria  as  de- 

••  ^^o^.;«».  -*«*^  ^u;.A«.>.;..  #«»  :...:<.^:^  fense  to  actions  by  injured  servants — see 

tional  purposes,  as  is  done  in  respect  of  na-  Co.  47  L.RJI.  162. 

tional  banks  by  §  24,  Tf  16,  of  the  Judicial  As  to  whether  a  servant  may  assume  the 

Code.     In  short,  there  is  no  ground  upon  risk  of  dangers  created  by  the  master's  n^ 

which  the  company  can  be  deemed  a  citizen  ligenc* — bc©  note  to  Scheurer  v.  Banner  Rub- 

of  Texas,  and  this  being  so,  the  suit  is  not  ^\^:  ^®  LJl.A.(N.S.)   1216. 

.    .           ^.48           ^  j»i»       A    J.  A  As  to  servant's  assumption  of  risk,  gen- 
one  between  Citizens  of  different  states,  erally-see  note  to  Southern  P.  Co.  v^sS«r^ 

Decree   affirmed.  38  L.  ed.  U.  S.  391. 
M016  141  V.  8» 


19U.                             CHESAFEAKi:  *  O.  R.  CO.  t.  DB  ATLEY. 

HewTi.    E.    L.    Wortblqgloii,    W.    D,  the  runniBg  board  of  ft  "hBrd-mnDing"  en- 

Cochran,  and  I«  Wrlgbt  Browning  ■ub'  giae,  Iim,ble  to  rock  ftod  BWft;  (Southern  P. 

mitted  the  mum  for  plaintiff  in  error:  Co.  t.  Jobason,  16  C.  C.  A.  317,  ii  V.  S. 

PUintiff  CMUiot   recover   unleas   delend'  App.  1,  69  Fed.  66S). 

aat'a  negligence   waa   the   proximftl«   cftUM  Under  the  Kentucky  practice  it  waa  the 

of  the  accident  and  injury  to  him.  duty  of  the  trial  court  to  have  prepared  and 

Bt.  Louie,  I.  M.  A  8.  R.  Co.  v.  McWhir-  giveu  a  corrected  instruction  embodying  the 

ter,  229  U.  S.  255,  57  L.  ed.  1179,  33  Sup.  defense   under   consideration,   i.    e.,   an   fn- 

Ct.  Rep.  858;  Patton  v.  Texsi  &  P.  R.  Co.  atruction  aetting  out  the  circumstancea  un- 

179  U.  S,  668,  46  L.  ed.  361,  21   Gup.  Ct.  der   which   an    "extraordinary,"    aa   diatiu- 

Rep.  275;  4  I«batt,  Mftit.  &  S.  S  1601.  guiabed    from   an    "ordinary,"    risk    ia   as- 

Plaintiff,  aa  a  matter  of  law,  aasumed  tbe  aumed  by  the  servant, 

riak  of  injury  from  hia  attempt  to  board  de-  Louisville  ft  N.  R.  Co.  v.  Harrod,  115  Ky. 

fendant'a  train.  877,  7S  8.  W,  233;  Louisville,  H,  A;  St.  L. 

3  Labatt,  Maat.  k  S.  S9  1168,  lieSa;  Sea-  R.Co.  v.  Roberta,  144  Ky.  620,  130  S.  W. 

board  Air  Line  R.  Co.  v.  Horton,  233  U.  S.  1073. 

492,  56  L.  ed.  1062,  L.R.A.1915C,  1,  34  Sup.  The  rules  of  the  state  practice  govern  In 

Ct.  Rep.  635,  Ann.  Caa.  191EB,  475,  B  N.  C.  cases  brought  in  the  state  courta  under  U>e 

C.  A.  834;  Schlemmer  v.  Buffalo,  R.  A  P.  R.  Federal  employers'  liability  act. 

Co.  220  U.  S.  690,  66  L.  ed.  saB,  31  Sup.  Ct.  Chesapeake  A  0.  R.  Co.  v.  Kelly,  181  Ky. 

Rep.  691;  ChocUw,  0.  ft  G.  R.  Co.  v.  Me-  865,  171  S.  W.  186;  Central  Vermont  R.  Co. 

Dade,  191  U.  S,  64,  48  L.  ed.  88,  24  Sup.  Ct.  v.  White,  238  U.  S.  507,  59'  L.  ed.  1433,  3S 

Rep.  24,  15  Am.  Neg.  Rep.  230;   Texas  ft  Sup.  Ct.  Rep.  885,  Ann.  Oas.  1916B,  262,  ft 

P.  R.  Co.  V.  Harvey,  228  U.  S.  319,  57  L.  N.  C.  C.  A.  265. 

ed.  862,  33  Sup.  Ct  Rep.  518;  Gila  Valley,  So  far  aa  the  defense  ol  assumed  risks  if 

G.  ft  N.  R.  Co.  T.  Hail,  232  U.  S.  94,  63  L.  concerned,    there    is   no    difference   between 

ed.   621,   34   Sup.   Ct.  Rep.   220;   4  Labatt,  the  negligence  of  the  master  and  the  negU- 

Mast.  ft  S.  9§   1310,  1313,  1315,  1325;   St.  gence  of  a  coemployee. 

Louis   Cordage   Co.  v.   Miller,  81   C.   C.  A.  Chicago   ft   G.    W.   R.   Co.   t.   Crotty,   4 

K)6,   126  Fed.  511,  16  Am.  Neg.  Rep.  478;  L.R.A.(N.S.)  832,  73  C.  C.  A.  147,  141  Fed. 

Creole  Lumber  Co.  v.  Mills,  149  Ala.  474,  42  913;  St.  Louis,  I.  M.  ft  S.  R.  Co.  v.  Ledford, 

So.  lOlO;  Green  v.  Cross,  79  Tex.  130,  15  90  Ark.  543,  119  8.  W.  1123;  Murphy  v. 

S.   W.  220;    Derr  v.  Lehigh  VaUey  R.  Co.  New  York,  N.  H.  ft  H.  R.  Co.  187  Maaa.  18. 

158  Pa.  365,  38  Am.  St.  Rep.  848,  27  Atl.  72  N.  E.  330;  Meagher  v.  Crawford  Laundry 

1002;  O'Neil  v,  Keyea,  1S8  Maaa  617,  47  N.  Mach.  Co.  187  Maaa.  686,  73  N.  E.  853. 

E.  416,  3  Am  Neg.  Rep.  178;  Missouri,  K.  If,  aa  is  practically  aasumed  t^  the  court 

ft  T.  R  Co.  V.  Thompaon,  11  Tex.  (Xv.  App.  of  appeala,  the  engineer  was  negligent  ia 

068,  33  S.  W.  716.  operating  the  train  at  said  rate  of  speed, 

A   brakeman   will   be   presumed   to  know  then,  by  parity  of  reasoning,  the  plaintiff 

of,   and  to  appreciate,  tbe   danger   ol   cou-  waa  negligent  in   attempting  to  board  tha 

pling,  from  the  inside  of  a  curve,  of  cars  hav-  same. 

ing   double   deadwooda    of    nnuaual    length  Hurat  v.  Kansas  City,  P.  ft  O.  R.  Co.  163 

(Kohn  V.  McNulta,  147  U.  S.  238,  37  L.  ed.  Mo.  308,  8G  Am.  St.  Rep.  630,  63  S.  W.  066; 

160,  13  Sup.  Ct.  Rep.  298;  MicbiKan  C.  R.  Dowell  v.  Vicksburg  ft  M.  R.  Co.  61  Miss. 

Co.  V.  Smithson,  45  Mich.  212,  7  N.  W.  791;  510;  Louisville  ft  N.  R.  Co.  v.  Wallace,  60 

Chicago,  B.  ft  Q.  R.  Co.  v.  CnrtU,  61  Neb.  Tenn.  S3,  16  S.  W.  921 ;  Whitfield  v.  Atian- 

442,  86  Am.  St.  Rep.  468,  71  N,  W.  42,  2  tic  Coaat  Line  H.  Co.  147  N.  C.  236,  80.  S. 

Am.  Neg.  Rep.  743)  ;   to  the  same  effect  ia  E.  1126;  Southern  R.  Co.  v.  Williams,  143 

the  holding  aa  to  danger  of  injury  from  un-  Ala.  212,  38  So.  1013. 

blocked  frogs  (Southern  P.  Co.  v.  Seley,  162  Although  the  servant's  contributory  neg- 

U.  S.  145,  38  L.  ed.  391,  14  Sup.  Qt.  Eep.  leet  is  not  a  bar  to  the  recovery  of  dam- 

fi30) ;  also,  as  to  knowledge  of  the  riak  that  ages,  yet  it  is  still  the  duty  of  the  court  to 

the  drawbara  of  two  cars  may  slip  and  pass  instruct  the  jury  that  the  servant's  conduct 

each  other,  and  thus  render  dangeroua  an  „nounted  to  negligence  per  m  where   the 

attempt  to  couple  them  on  the  inside  of  a  tActa.  and  the  interencea  to  be  drawn  from 

sharp  curve  (TutUe  v.  Detroit,  G.  H.  ft  M.  them,  are  not  conflicting  as  to  the  fact  that 

~  ^-  '",y«f-  ^^"^  ^"  ^-  *^--  "'t'  I  ^.P-  ^"tributory  negligence  existed. 

Ot.   Rep.   1166);   so  an   experienced  b™ke-  .n,(,„t(,„     j.^^„i    Employer.'   LiablH^ 
■nan  cannot  recover  for  an  injury  caused  '■?•*•  iik 

faia  miacalculating  the  actual  difference  be-  ' 

tween  the  helghte  of  two  drawbeada,  he  be-  Mr.  Allan  D.  Cole  argved  tbe  cause,  and, 

ing  aware  that  there  was  some  differenoe  with  Mr.  H.  W.  Cole,  filed  a  brief  for  de- 

(Hulett  V.  St.  Louis,  K.  C.  ft  N.  R.  Co.  67  fendant  In  error: 

Ua  239 ) ;  to  aa  to  the  danger  of  going  onto  The  failure  to  uerdse  ordlnarj  oaz«  '•Vast. 

•0  li.  «£  ^*»^'* 


SUPREME  COURT  OF  THE  UNITED  STATEa 


Oor.  Tbm, 


the  engineer  not  only  knew  that  defendant 
in  error  went  to  the  tower,  but  also  knew 
that  he  would  have  to  board  the  train  again, 
and  saw  him  on  the  platform  before  the  in- 
Jury,  was  certainly  negligence.  If  he  had 
stopped  the  train  and  then  allowed  defend- 
ant in  error  to  get  aboard,  would  it  then 
have  been  possible  for  him  to  lose  his  leg? 
If,  instead  of  12  or  15  miles  an  hour,  the 
engineer  had  driyen  the  train  at  the  rate  of 
4  miles  an  hour,  would  defendant  in  error 
than  have  lost  his  leg?  If  he,  an  inexperi- 
enced boy,  thought  the  train  was  going  at  a 
slow  rate  of  speed,  when  in  fact  it  was  not, 
this  did  not  reliere  plaintiff  in  error  of 
the  consequence  of  its  carelessness  and  neg- 
ligence in  pulling  him  loose  by  the  train's 
momentum  from  the  grab  iron  on  the  en- 
gine, and  throwing  him  upon  the  ground 
underneath  the  car  wheels.  Moreover,  there 
was  an  utter  failure  to  warn  and  instruct 
him  of  the  danger. 

De  Atley  v.  Chesapeake  ft  0.  R.  Co.  147 
Ky.  315,  144  S.  W.  95,  201  Fed.  592;  Gal- 
veston, H.  k  S.  A.  R.  Co.  V.  Sullivan,  53 
Tex.  Civ.  App.  394,  115  S.  W.  615;  Cincin- 
nati, N.  0.  k  T.  P.  R.  Co.  V.  Swann,  160 
Ky.  462,  L.R.A.1915C,  27,  169  S.  W.  886. 

If  the  plaintiff  in  error  was  guilty  of  any 
causative  negligence,  no  matter  how  slight, 
in  comparison  with  that  of  defendant  in 
error,  no  matter  how  gross,  there  was  a 
question  for  the  jury. 

New  York,  C.  A  St.  L.  R.  Co.  v.  Niebel, 
131  C.  C.  A.  248,  214  Fed.  955;  Orand 
Trunk  R.  Co.  t.  Cummings,  106  U.  6.  700, 
27  L.  ed.  266,  1  Sup.  Ct.  Rep.  493. 

Where  it  was  part  of  the  switchman's 
duty  to  jump  on  a  moving  train,  and  the 
evidence  whether  he  should  have  attempted 
to  jump  on  at  the  place  where  he  did  was 
conflicting,  and  the  plaintiff  testified  that 
he  did  not  know  the  place  was  dangerous, 
the  question  of  his  contributory  negligence 
is  for  the  jury. 

8  Thomp.  Neg.  §  5602. 

The  general  rule  that  persons  injured 
while  attempting  to  get  on  or  off  moving 
.cars  are  guilty  of  contributory  negligence 
does  not  apply  with  absolute  strictness  to 
train  hands  accustomed  to  get  on  and  off 
moving  cars  in  the  performance  of  their 
duties. 

8  Thomp.  Neg.  §  5602;  Charlton  v.  St. 
Louis  &  S.  F.  R.  Co.  200  Mo.  413,  98  S.  W. 
529;  Heilig  v.  Southern  R.  Co.  152  N.  C. 
469,  67  S.  E.  1009;  Whitfield  v.  Atlantic 
Coast  Line  R.  Co.  147  N.  C.  236,  60  S.  E. 
1126. 

Proximate  cause  is  a  question  for  the 
jury. 

7  Thomp.  Neg.  §  161;  San  Francisco  ft 
P.  S.  S.  Co.  ▼.  Carlson,  89  C.  C.  A.  45,  161 
Fed,  864;  Halef  ▼.  Michigan  C.  R.  Co.  118 
i0MS 


C.  C.  A.  627»  200  Fed.  637;  MUwaukee  ft 
St.  P.  R.  Co.  V.  Kellogg,  94  U.  S.  499,  24 
L.  ed.  256;  4  Labatt,  Mast,  ft  8.  |  157; 
Myers  v.  Pittsburgh  Coal  Co.  233  U.  8.  192, 
58  L.  ed.  910,  34  Sup.  Ct.  Rep.  569. 

There  is  no  room  in  this  case  lor  the  as- 
sumption of  ordinary  risks,  and  no  instruc- 
tion was  asked  in  the  trial  court  by  the 
plaintiff  in  error  on  the  assumption  of  ex- 
traordinary risks.  Hence,  it  was  not  error 
to  refuse  the  instruction  offered  on  ordinary 
risks,  nor  was  the  trial  court  bound  to  mod- 
ify such  instruction  so  as  to  make  it  apply 
to  extraordinary  risks. 

Catts  V.  Phalen,  2  How.  882,  11  L.  ed. 
308;  Buck  v.  Chesapeake  Ins.  Co.  1  Pet  159, 
7  L.  ed.  94 ;  Haffin  v.  Mason,  15  WalL  671, 
21  L.  ed.  196. 

Congress,  in  passing  the  Federal  employ- 
ers' liability  act,  evidently  intended  that  the 
Federal  statute  should  be  construed  in  the 
line  of  these  and  other  decisions  of  the 
Federal  courts. 

Seaboard  Air  Line  R.  Ca  t.  Moore,  228 
U.  S.  434,  57  L.  ed.  907,  33  Sup.  Ct  Rep. 
580;  Central  Vermont  R.  Co.  v.  White,  238 
U.  S.  507,  59  L.  ed.  1433,  36  Sup.  Ct  Rep. 
865,  Ann.  Gas.  1916B,  252,  9  N.  C.  a  A 
265. 

Moreover,  the  court  will  not  inquire  into 
questions  relating  to  pleading  and  prac- 
tice in  state  courts.  Yazoo  ft  M.  Val^y  R 
Co.  V.  Adams,  180  U.  S.  9,  45  L.  ed.  402,  21 
Sup.  Ct  Rep.  240.  For  the  appellate  state 
court  may,  as  it  did  in  the  case  at  bar,  rest 
its  aflSrmance  of  the  judgment  below  on 
some  question  of  practice  or  pleading,  and 
such  a  decision  is  not  adverse  to  the  Fed- 
eral right  or  claim. 

Matheson  v.  Bank  of  Alabama,  7  How. 
261,  12  L.  ed.  693;   Chappell  Chonical  A 
Fertilizer  Co.  v.  Sulphur  Mines  Co.  172  U. 
S.  473,  43  L.  ed.  520,  19  Sup.  Ct  Rep.  268 
Semple  ▼.  Hagar,  4  Wall.  434, 18  L.  ed.  402 
Smith  V.  Adsit,  16  Wall.  188,  21  L.  ed.  310 
Commercial   Bank  v.   Rochester,    16   Wall. 
642,  21  L.  ed.  117 ;  Chouteau  t.  Gibson,  111 
U.  S.  201,  28  L.  ed.  401,  4  Sup.  Ct  Rep. 

340. 

No  Federal  question  is  presented  for  the 
further  reason  that  assumption  of  risk  is 
a  question  of  common  law,  and  it  is  well 
settled  that,  if  a  state  decision  is  made 
upon  rules  of  general  jurl^mdoieei  or 
upon  other  grounds  broad  enough  to  sus- 
tain the  judgment  without  oonsidisring  the 
Federal  question,  jurisdiction  of  this  court 
will  not  attach. 

New  Orleans  v.  New  Orleans  Waterworks 
Co.  142  U.  S.  84,  35  L.  ed.  944,  12  Sup.  Ct 
Rep.  142;  Bank  of  West  Tennessee  t.  Citi- 
zens' Bank,  13  WaU.  433,  20  L.  ed.  616. 

Under  the  facta  there  was,  therefore,  bo 

141  V.  8. 


IftU.                            CHESAPEAKE  *  O.  B.  CX).  t.  DB  ATLET.                       SU-3U 

«rror  in  failing  to  charge  the  jurj  on  titt  tha    object    being    to    determine    whethcx 

aubject  of  ueumption  of  ri*k*.  it    w«b    ufa    for    No.    OS    to   proceed   to 

Central  Vermont  E.  Co.  v.  White,  eupre.:  Ma.7«TiUe    kheed    of    it      Plaintiff    wm 

Southern  R.  Co.  v.  Gadd,  233  U.  S.  672,  SB  unsble  to  understand  the  operator  and  m» 

L.   ed.   1090,   34   Sup.   Ct.   Bep.   6BSi    Gila  reported  to  the  engineer.     He  then  got  in- 

Valler,  6.  t  N.  R.  Co.  v.  Hell,  232  U.  S.  to  the  cab  of  the  locomotive  and  the  train 

102,  &8  L.  ed.  625,  34  Sup.  Ot.  Sep.  220;  proceeded  to  the  coal  dodu,  about  1  mile 

Seaboard  Air  Line  R.  Co.  v.  Horton,  233  U.  eaat  of  Majraville  end  about  4S0  jarda  east 

S.  402,  68  L.  ed.  1062, -LJLA.IO ISC,  1,  34  of  a  telegraph  sUtion  in  a  eignal  tower 

Sup.  Ct.  Rep.  S3&,  Ann.  Cas.  I016B,  476,  8  known  ■■  the  F.  O.  cabin,  where  it  stopped 

N.  C.  C.  A.  834;  Illinois  C.  R.  Co.  t.  Porter,  for  eoal  and  water.    Plaintiff  waa  directed 

126  C.  C.  A.  66,  207  Fed.  316.  by  the  engineer  to  go  forward  to  F.  O.  cabin 

The  maeter  will  not  be  excused  for  his  and  ascertain  from  the  operator  the  where- 

failure  to  warn  and  instruct  an   inexperi-  abouts  of  train  No.  1.    Plaintiff  went  to  the 

enced  aerrant,   unless   it  appears   that  the  tower,  and  waa  there  advised  that  his  train 

servant    not    ouijr    understood,    but    appre-  had  time  to  reach  MaysvUle.    He  immediate- 

4iiated  the  danger.     There  is  quite  a  dif-  If  descended  to  the  platform  in  front  of  the 

ference  between  knowing  that  you  will  get  tower  and  beside  the  track,  and  saw  that 

hurt  if  JQU  do  a  certain   thing,  and  such  his  train  was  approaching.     He  waited  for 

appreciation  of  the  danger  as  will  cause  it,  and  when  it  reached  the  platform  he  at- 

;ou  to  stop  and  think  before  you  do  it.  tempted  to  board  the  engine.    He  could  not 

Southern  R.  Co.  v.  Mauck,  1S2  Ky.  600,  accurately  judge  the  speed  of  the  train,  but 

163  S.  W.  T2B.  it    appeared    to    him    to    be   going    alowly 

Even  if  defendant  in  error  had  discovered  enough  for  him  to  get  aboard  it.    He  caught 

the  danger  when  he  was  iujored,  but  had  hold  of  the  grab  iron  and  put  one  foot  on 

no  time  deliberately  to  choose  to  take  hia  the  step,  and  then  the  speed  of  the  train, 

chances,  he  did  not  assume  the  risk.  combined  with  his  weight,  caused  his  foot 

Illinois  C.  R.  Co.  v.  Stewart,  13S  C.  0.  A.  to   slip   and  loosened  his  bold,   so  that   he 

444,  223  Fed.  34 ;  Yazoo  &.  M.  Valley  R.  Co.  fell  beneath  the  wheels  of  the  tender  and 

V.  Wright,  235  U.  S.  378,  SB  L.  ed.  277,  36  hia  arm  was  cut  off.    He  had  been  employed 

Sup.  Ct.  Rep.  130;  28  Cyc.  1177;  Cincinnati,  »■  brakeman  for  about  eix  weeks,  and  be- 

N.  O.  4  T.  P.  R.  Co.  V.  Ooldston,  166  Ky.  'ore  that  bad  made  two  round  tripe  over  the 

410,  161  S.  W.  246.  toad  for  the  purpose  of  becoming  acquainted 

The  facts  and  inferences  therefrom  are  ''^'>  ^'^  duties.    During  the  time  of  hia  em- 

conflicting  as  to  the  existence  of  contribu-  ployment  he  bad  frequently  been  called  up- 

tory   negligence,   and   the   question   of  con-  <"".  under  orders  of  the  train  engineer,  to 

tributory    negligence   in   such   instances   is  l^'^e  the  train   and  go  forward   to  signal 

for  the  jury.  towers  for  orders  or  information,  and  then 

Bcheben  y.  George  Wiedeman  Brewing  Co.  """"nt  t^e  train  as  it  came  moving  by.    On 

161  Ky.  417   170  S.  W.  948.  ""  occasion  of  the  accident  tfae  train  waa 
running  about  12  miles  per  hour. 

Mr.  Justice  Pitney  delivered  tfae  opinion  t^l^l  The  <»"  "e^t  to  the  jury  under 

of  the  court:  instructions  making  defendant's  liability  de- 

In  this  action,  which  was  brought  in  a  pendent  upon  whether  the  engineer,  with 
state  court  under  the  Federal  employers'  knowledge  of  plaintiff's  presence  at  the  tele- 
liability  act  of  April  22,  1908  (chap.  140,  graph  tower  upon  businesB  oonneoted  with 
36  Stat,  at  L.  85,  Comp.  Stat,  1913,  |  8667),  the  operation  ol  the  train,  and  with  knowl- 
tba  following  facts  appeared  or  might  rea-  edge  of  hia  purpose  to  board  the  train,  n(^ 
aonably  be  inferred  from  the  evidence  most  ligently  operated  the  train  at  such  a  raU  ol 
favorable  to  defendant  in  error  (plainUfl  be-  .peej  „  to  make  plalntlfTi  attempt  to 
low),  in  the  light  of  which  the  Initial  quea-  i^^  ,t  ^aiu^^Hy  haaardons.  'Ihere  was  a 
tion  touching  the  vahd.ty  of  the  jud^ent  ,„di,t  (or  plaintiff  and  the  resulting  judg- 
Inh»  favor  m.«t  be  determined:  ment  waa  afflrmed  by  the  court  of  Ip^^ 

On  Janu.^  22  1011,  plaint.fl  wa.  in  the  ^^^^       1S9  Ky  687,  167  8.  W  ^ 

employ   of   defendant   and    acting   as   head  „         r.                ^       ,L    . 

br^e^an  on  train  No.  06-a  faet  we^  ..^P?".*^!  P""!!^*  ^^  ^t  utct.  it  U  not 

bound  interstate  freight  train.     When  the  disputed  that  there  was  mfiicient  evidence 

[312]     train     reached     a     statitm     called  °'  ""«  aegllgence  of  the  ngineer  to  require 

Springdale,  about  6  milea  east  of  Maysville,  tl"  Mtmi^Bion  of  the  eaae  to  tha  Jury.    It 

in  Kentucky,  the  train  engineer  directed  ^  ugued  that  there  was  no  substantial  evl- 

pWntiff  to  go  to  a  nearby  railway  tele-  dence  to  support  the  conolnaion  that  such 

phon^  call  up  the  operator,  and  aaeertain  negligence  was  the  proximate  cause  of  the 

tha   whereabouts   of    train    No.    1,    which  injnij;  but  this  is  ao  dearly  untenable  aa 

waa   a   fast   west-bound   paawoger   train;  t»  require  no  ■''"'■f'"",     The  ramais.Vii% 

•0  It.  ed.  -v^vv 


313-^16 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbkm, 


questions  turn  upon  the  sppHcation  of  the 
law  respecting  assumption  of  risk. 

It  is  insisted  that,  even  conceding  the 
train  was  operated  at  a  negligent  rate  of 
speed  in  view  of  plaintiff's  purpose  to  board 
it,  yet  he  assumed  the  risk  of  injury  in- 
volved in  the  attempt.  The  act  of  Congress, 
by  making  the  carrier  liable  for  an  em- 
ployee's injury  "resulting  in  whole  or  in 
part  from  the  negligence  of  any  of  the  offi- 
cers, agents,  or  employees"  of  the  carrier, 
abrogated  the  common-law  rule  known  as 
the  fellow-servant  doctrine  by  placing  the 
negligence  of  a  coemployee  upon  the  same 
basis  as  the  negligence  of  the  employer. 
At  the  same  time,  in  saving  the  defense  of 
assumption  of  risk  in  cases  other  than  those 
where  the  violation  by  the  carrier  of  a  stat- 
ute enacted  for  the  safety  of  employees  may 
contribute  to  the  injury  or  death  of  an  em- 
ployee (Seaboard  Air  Line  R.  Co.  v.  Horton, 
233  U.  S.  402,  502,  58  L.  ed.  1062,  1069, 
L.RJ1.1915C,  1,  34  Sup.  Ct.  Rep.  635,  Ann. 
Cas.  1915B,  476,  8  N.  C.  C.  A.  834),  the  act 
placed  a  coemployee's  negligence,  where  it 
is  the  ground  of  the  action,  in  the  same  rela- 
tion as  the  employer's  own  negligence  would 
stand  [314]  to  the  question  whether  a 
plaintiff  is  to  be  deemed  to  have  assumed 
the  risk. 

On  the  facts  of  the  case  before  us,  there- 
fore, plaintiff  having  voluntarily  entered  in- 
to an  employment  that  required  him  on 
proper  occasion  to  board  a  moving  train,  he 
assumed  the  risk  of  injury  normally  inci- 
dent to  that  operation,  other  than  such  as 
might  arise  from  the  failure  of  the  locomo- 
tive engineer  to  operate  the  train  with  due 
care  to  maintain  a  moderate  rate  of  speed 
in  order  to  enable  plaintiff  to  board  it  with- 
out undue  peril  to  himself.  But  plaintiff 
had  the  right  to  presume  that  the  engineer 
would  exercise  reasonable  care  for  his  safe- 
ty, and  cannot  be  held  to  have  assumed  the 
risk  attributable  to  the  operation  of  the 
train  at  an  unusually  high  and  dangerous 
rate  of  speed,  until  made  aware  of  the  dan- 
ger, unless  the  speed  and  the  consequent 
danger  were  so  obvious  that  an  ordinarily 
careful  person  in  his  situation  would  have 
observed  the  one  and  appreciated  the  other. 
Gila  Valley,  •.  ft  N.  R.  Co.  v.  Hall»  232  U. 
S.  04, 101, 58  L.  ed.  521,  534,  34  Sup.  Ct.  Rep. 
220;  Seaboard  Air  Line  R.  Co.  v.  Horton, 
233  U.  S.  402,  504,  58  L.  ed.  1062,  1070, 
L.RJ1.1015C,  1,  34  Sup.  Ct  Rep.  635,  Ann. 
Cas.  101 5B,  475,  8  N.  C.  C.  A.  834. 

It  is  argued  that,  so  far  as  the  question 
of  assumed  risks  is  concerned,  it  makes  no 
difference,  in  the  case  of  a  brakeman  about 
to  board  a  moving  train,  whether  it  is 
operated  at  a  low  or  at  a  high  rate  of  speed; 
that  if  the  train  is  moving  slowly  the  risk  is 
an  ordinary  one,  incident  to  the  business  of 
1090 


railroading;  while  if  it  is  moving  rapidly^ 
the   risk   is  open,  obvious,   and   apparent. 
Were  we  to  consider  only  extreme  cases, 
such  as  were  instanced  in*  argument,  the 
point    might   be   conceded;    that    is,    that 
mounting  a  train  operated  at  1  mile  per 
hour  is  an  ordinary  risk,  while  mounting  a 
train  operated  at  50  miles  per  hour  presents 
a   risk  which,   although   extraordinary,    is 
open,  obvious,  and  apparent.    But  these  ex- 
tremes  do  not  present  an  apt  illustration. 
A  speed  very  much  below  50  miles  would  en- 
danger the  brakeman's  safety,  at  the  same 
time  being  much  less  apparent.  If  those  op- 
erating the  train  [315]  in  question  knew 
that  plaintiff  intended  to  board  it  at  that 
point, — and  the  verdict  is  to  that  effect, — 
the  Jury   was  warranted   in   finding   that 
plaintiff  had  a  right  to  expect  that  the  train 
would  be  moving  at  a  moderate  rate  of 
speed  such  as  would  enable  an  ordinarily 
careful  brakeman  to  get  on  with  reasonable 
safety;  and  this  upon  the  ground  that,  as 
head  brakeman,  plaintiff  had  the  right — 
indeed,  that  it  was  his  duty — ^to  get  upon 
the  engine,  since  otherwise  the  train  would 
be  left  without  a  head  brakeman  and  the 
engineer  without  the  information  required 
for  the  safe  operation  of  the  train;  and  that 
plaintiff  had  no  notice  nor  any  opportunity 
to    determine    with     reasonable    certainty 
what  the  speed  of  the  train  was,  or  that 
it  was  too  great  for  his  safety,  until  tbc 
engine    had    practically    reachcNl   him.      It 
cannot  be  said,  as  matter  of  law,  that  a 
speed  of  12  miles  per  hour  would  necessarily 
be  obvious  to  him  as  a  dangerous  speed,  be- 
fore he  made  the  attempt  to  board  the  train. 

It  is  insisted  that  the  true  test  is  not 
whether  the  employee  did,  in  fact,  know  the 
speed  of  the  train  and  appreciate  the  dan- 
ger, but  whether  he  ought  to  have  known 
and  comprehended;  whether,  in  effect,  he 
ought  to  have  anticipated  and  taken  pre- 
cautions to  discover  the  danger.  This  is 
inconsistent  with  the  rule  repeatedly  laid 
down  and  uniformly  adhered  to  by  this 
court.  According  to  our  decisions,  the  set- 
tled rule  is  not  that  it  is  the  duty  of  an 
employee  to  exercise  care  to  discover  extra- 
ordinary dangers  that  may  arise  from  the 
negligence  of  the  employer  or  of  those  for 
whose  conduct  the  employer  is  responsible, 
but  that  the  employee  may  assume  that  the 
employer  or  his  agents  have  exercised  proper 
care  with  respect  to  his  safety  until  noti- 
fied to  the  contrary,  unless  the  want  of  care 
and  the  danger  arising  from  it  are  so  obvi- 
ous that  an  ordinarily  careful  person,  under 
the  circumstances,  would  observe  and  ap- 
preciate them.    Ibid. 

[316]  We  conclude  that  there  w»s  no 
error  in  refusing  to  peremptorily  instmet 

141  V.  8. 


1015. 


CHESAPEAKE  ft  O.  R.  CO.  ▼.  DE  ATLEY. 


816-318 


the  jury  to  return  a  verdict  in  favor  of  de- 
fendant. 

Error  is  assigned  to  the  refusal  of  the 
trial  court  to  instruct  the  jury  as  follows: 
That  when  plaintiff  entered  defendant's  serv- 
ice as  brakeman  he  assumed  all  the  ordinary 
risks  and  hazards  of  that  employment,  and 
if  the  jury  should  believe  from  the  evidence 
that  his  injuries  were  the  natural  and  di- 
rect result  of  any  of  such  risks  or  hazards, 
they  must  find  for  the  defendant.  The  in- 
struction thus  requested  was  defective,  and 
there  was  no  error  in  refusing  to  give  it  in 
this  form,  since  it  embodied  no  definition 
of  "ordinary  risks  and  hazards,"  nor  any 
qualification  appropriate  to  the  particular 
facts  of  the  case.  The  gravamen  of  plain- 
tiff's complaint,  as  developed  at  the  trial, 
and  the  sole  theory  upon  which  the  case 
was  submitted  to  the  jury,  was  that  the  neg- 
ligence of  the  engineer  in  operating  the 
train  at  an  unduly  high  rate  of  speed 
created  an  unusual  and  extraordinary  haz- 
ard. An  instruction  upon  the  question  of 
assumption  of  risk,  dealing  solely  with  the 
ordinary  hazards  of  the  employment,  and 
not  pointing  out  that  a  different  rule  must 
be  applied  with  respect  to  an  extraordinary 
risk  attributable  to  the  engineer's  negli- 
gence, would  probably  have  confused  and 
misled  the  jury. 

But  it  appears  that  in  Kentucky  there  is 
an  established  rule  of  practice,  that  if  in- 
structions are  offered  upon  any  issue  respect- 
ing which  the  jury  should  be  instructed, 
but  they  are  incorrect  in  f6rm  or  substance, 
it  is  the  duty  of  the  trial  court  to  prepare 
or  direct  the  preparation  of  a  proper  in- 
struction upon  the  point  in  the  place  of  the 
defective  ones.  Louisville  &  N.  R.  Co.  v. 
Harrod,  116  Ky.  877,  882,  75  8.  W.  233; 
West  Kentucky  Coal  Co.  v.  Davis,  138  Ky. 
667,  674,  128  S.  W.  1074;  Louisville,  H.  & 
St.  L.  R.  Co.  V.  Roberts,  144  Ky.  820,  824, 
130  S.  W.  1073. 

Although  the  present  action  was  based 
upon  a  Federal  [317]  statute,  it  was  tri- 
able and  tried  in  a  state  court;  hence  local 
rules  of  practice  and  procedure  were  appli- 
cable. Central  Vermont  R.  Co.  v.  White,  238 
U.  S.  607,  511,  59  L.  ed.  1433,  1436,  35  Sup. 
Ct.  Rep.  865,  9  N.  0.  C.  A.  265;  Minneapolis 
fc  St.  L.  R.  Co.  V.  Bombolis,  No.  478,  this  day 
decided  [241  U.  S.  211,  ante,  961,  36  Sup. 
Ct.  Rep.  595].  The  Kentucky  court  of  ap- 
peals assumed  for  the  purposes  of  the  deci- 
sion that  the  case  was  one  where  the  trial 
Kmrt  ought  to  have  followed  the  local  prac- 
tice and  prepared  or  directed  the  prepara- 
tion of  a  proper  instruction  covering  the 
loesticm  of  assumption  of  risk;  and  it  sus- 
tained the  judgment  only  upon  the  ground 
that  there  was  no  question  for  the  jury  re- 
electing it.  Whether  there  was  is  a  quea- 
10  li.  ed. 


tion  of  law,  and  of  course,  in  this  case,  a 
Federal  question ;  and  since  the  court  of  ap- 
peals assumed  to  decide  it,  it  is  incumbent 
upon  us  to  review  the  decision.  North 
Carolina  R.  Co.  v.  Zachary,  233  U.  S.  248, 
257,  58  L.  ed.  691,  695,  34  Sup.  Ct.  305, 
Ann.  Cas.  1914C,  159. 

We  are  unable  to  concur  in  the  view  that 
there  was  no  question  for  the  jury.  Whether 
the  risk  was  an  extraordinary  risk  de- 
pended upon  whether  the  speed  of  the  train 
was  greater  than  plaintiff  reasonably  might 
have  anticipated;  and  this  rested  upon  the 
same  considerations  that  were  determinative 
of  the  question  of  the  engineer's  negligence. 
If  the  jury  should  find,  as  in  fact  they  did 
find,  that  the  speed  of  the  train  was  unduly 
great,  so  that  the  risk  of  boarding  the  en- 
gine was  an  extraordinary  risk,  the  question 
whether  plaintiff  assumed  it  then  depended 
upon  whether  he  was  aware  that  the  speed 
was  excessive,  and  appreciated  the  extraor- 
dinary danger ;  or,  if  not,  then  upon  whether 
the  undue  speed  and  the  consequent  danger 
to  him  were  so  obvious  that  an  ordinarily 
prudent  person  In  his  situation  would  have 
realized  and  appreciated  them.  The  court 
of  appeals  reasoned  that  plaintiff's  duties 
required  him  to  be  upon  the  passing  train; 
that  if  he  failed  to  board  it  he  would  be 
left  behind;  that  he  had  a  right  to  assume 
the  engmeer  would  run  the  train  at  a  speed 
that  would  enable  him  to  get  on  in  safety; 
[318]  that  he  was  facing  the  train,  which 
was  going  directly  toward  him;  that,  as  a 
matter  of  common  knowledge,  one  standing 
in  that  position  cannot  form  an  accurate 
judgment  of  its  speed  until  it  comes  quite 
near  to  him;  and  that  his  opportunity  to 
observe  the  speed  was  limited  to  the  brief 
space  of  time  that  elapsed  between  the  pass- 
ing of  the  front  end  of  the  engine  and  the 
cab,  where  it  was  his  purpose  to  get  on; 
and  the  court  determined  that,  under  such 
circumstances,  "it  is  well-nigh  impossible  to 
tell  the  difference  between  a  rate  of  from  4 
to  6  miles  an  hour,  when  an  ordinarily  pru- 
dent brakeman  might  get  on  with  reasonable 
safety,  and  a  rate  of  from  10  to  12  miles  an 
bc»ur,  when  it  would  be  dangerous  for  him  to 
do  so:"  nnd  that  "all  the  circumstances  tend 
to  show  that  knowledge  of  the  speed  of  the 
train  came  to  him  so  suddenly  and  unex- 
pectedly that  he  did  not  have  an  opportunity 
to  realize  and  appreciate  the  danger  of  get- 
ting on."  Conceding  the  force  of  the  reason- 
ing, we  are  bound  to  say  that,  in  our  opin- 
ion, it  cannot  be  said,  as  matter  of  law,  to 
be  so  incontrovertible  that  reasonable  minds 
might  not  differ  about  the  conclusion  that 
should  be  reached.  We  therefore  hold  that 
the  question  of  assumption  of  risk  was  one 
proper  for  submission  to  the  jury,  and.  as- 
suming, as  the  court  asaumed,  that  the  local 

1011 


318,  310 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbm, 


practice  required  the  preparation  of  a  prop- 
er inBtniction  covering  the  topic,  in  the 
place  of  the  defective  instruction  that  was 
offered,  there  was  error  in  affirming  the 
judgment  of  the  trial  court. 

Judgment  reversed  and  the  cause  re- 
manded for  further  proceedings  not  incon- 
sistent with  this  opinion. 

Mr.  Justice  MoKenna  and  Mr.  Justice 
Holmes  dissent. 


[319]  CINCINNATI,  NEW  ORLEANS,  A 
TEXAS  PACIFIC  RAILWAY  COM- 
PANY, Plff.  in  Err., 

V. 

D.  F.  AND  T.  C.  RANKIN. 

(See  S.  0.  Reporter's  ed.  319-328.) 

Carriers  —  liability  as  insurers  —  effect 
of  Carmack  amendment. 

1.  The  common-law  liabilitj  of  a  car- 
rier as  an  insurer  was  not  changed  with 
respect  to  a  loss  occurring  on  its  own  line 
by  the  provision  of  the  Carmack  amend- 
ment of  June  20,  1906  (34  Stat,  at  L.  684, 
chap.  3591),  to  the  act  of  February  4,  1887 
(24  Stat,  at  L.  379,  chap.  104,  Comp.  Stat. 
1913,  §  8563),  §  20,  making  the  initial  car- 
rier  of  an  interstate  shipment  liable  for  any 
loss,  damage,  or  injury  "caused  by  it"  or 
by  any  other  carrier  to  which  the  shipment 
may  be  delivered.  * 
[For   other   cases,    see   Carriers,    II.   b,   8,    in 

Dl^st  Sup.  Ct.  1908.1 

Carriers  —  measure  of  rights  and  lia- 
bility —  Interstate  shipment. 

2.  The  rights  and  liabilities  of  the  par- 
ties to  an  interstate  railway  shipment  de- 
pend upon  Federal  legislation,  the  bill  of 
lading,  and  common-law  rules  as  accepted 
and  applied  in  Federal  tribunals. 

[For  other  cases,  see  Carriers,  II.  b.  1,  in 
Digest  Sup.  Ct.  1908.1 

Bvidence  —  presumption  —  carrier's 
compliance  with  law. 

3.  It  cannot  be  assumed  merelv  because 
the  contrary  has  not  been  established  by 
proof  that  an  interstate  railway  carrier  is 
conducting  its  affairs  in  violation  of  con- 
trolling Federal  legislation. 

[For  other  cases,  see  Evidence,  IL  i;  1,  in 
Digest  Sup.  Ct  1908.1 

Bvidence  —  bnrden  of  proof  —  limita- 
tion of  carrier's  liability  —  choice  of 
rates. 

4.  Recitals  in  a  bill  of  lading  for  an 
interstate  shipment,  signed  by  both  parties, 
that  alternate  rates,  based  upon  specified 
values,  are  offered  by  the  carrier's  pub- 
lished freight  rates,  constitute  admissions 
by  the  shipper  and  sufficient  prima  facie 
evidence  of  a  choice  of  rates,  and  cast  upon 
him  the  burden  of  proving,  in  case  he  wishes 
to  contradict  his  admissions,  that  the  car- 
rier  had   not    complied    with   the    require- 

menta  of  controUing  Federal  legislation  re- 


speeting  the  filing   and   publishing  of  it» 
rate  schedules. 

[For  other  cases,  see  Evidence,  IL  f,  in  Dinst 
Sup.  Ct.  1908.] 

[No.  69.] 

Argued  November   5,   1915.     Decided  Hay 

22,  1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Tennessee  to  review  a  judgment 
which  affirmed  a  judgment  of  the  Court  of 
Civil  Appeals  of  that  state,  affirming  a 
judgment  of  the  Circuit  Court  of  Hamilton 
County,  in  favor  of  a  shipper  in  an  action 
against  a  carrier  to  recover  for  damages  ta 
an  interstate  shipment.  Reversed  and  re- 
manded for  further  proceedings. 
The  facts  are  stated  in  the  opinion. 

Mr.  James  J.  liynch  argued  the  eauss^ 
and,  with  Messrs.  Michael  M.  Allison,  Ed- 
ward Colston,  and  Isaac  G.  Phillips,  filed 
a  brief  for  plaintiff  in  error: 

If  liable  at  all,  the  amount  of  the  judg- 
ment complained  of  is  erroneous.  Defend- 
ants in  error  are  only  entitled  to  recover 
$75  for  each  of  the  animals  lost,  as  provided 
for  in  the  contract  of  shipment. 

Hart  V.  Pennsylvania  R.  Co.  112  U.  S. 
331,  28  L.  ed.  717,  6  Sup.  Ct.  Rep.  151; 
Chicago,  St.  P.  M.  &  0.  R.  Co.  v.  LatU,  22$ 
U.  S.  519,  57  L.  ed.  328,  33  Sup.  Ct.  Rep. 
155;  Chicago,  B.  &  Q.  R.  Co.  v.  Miller,  22& 
U.  S.  513,  57  L.  ed.  323,  33  Sup.  Ct.  Rep. 
155;  Missouri,  K  &  T.  R.  Co.  v.  Harriman, 
227  U.  S.  657,  668,  57  L.  ed.  690,  696,  33 
Sup.  Ct.  Rep.  397;  Pennsylvania  R.  Co.  v* 
Hughes,  191  U.  S.  477,  48  L.  ed.  268, 24  Sup. 
Ct  Rep.  132;  Bernard  v.  Adams  Exp.  Co. 
205  Mass.  254,  28  L.RJL(N.S.)  293,  91 
N.  E.  325,  18  Ann.  Cas.  351. 

If  plaintiff  in  error  had  filed  the  schedule 
of  rates  containing  the  limited  valuation  set 
out  in  the  bill  of  lading,  with  the  Interstate 
Commerce  Commission,  their  reasonableness 
could  not  be  considered  by  the  courts  in 
this  suit. 

Texas  ft  P.  R.  Co.  v.  Abilene  Cotton  Oil 
Co.  204  U.  S.  426,  51  Ii.  ed.  553,  27  Sup.  Ct 
Rep.  350,  9  Ann.  Cas.  1075 ;  Baltimore  ft  0. 
R.  Co.  V.  United  States,  215  U.  8.  481,  54 
L.  ed.  292,  30  Sup.  Ct  Rep.  164. 

The  positive  mandate  of  the  law  required 
the  railway  company  to  charge,  and  the 
shipper  to  pay,  the  rate  which  had  been  filed 
with  the  Interstate  Commerce  Conunission, 
and  the  giving  or  acceptance  of  any  other 
rate  would  have  been  a  violation  of  the 
law,  and  would  have  subjected  both  the 
railway  company  and  the  shipper  to  a  heavy 
penalty. 

Texas  ft  P.  R.  Co.  v.  Abilene  Cotton  Oil 
Co.  204  U.  8.  445,  51  Ii.  ed.  561,  27  Sup. 

941  U.  8. 


1915. 


CINCINNATI,  N.  O.  ft  T.  P.  R.  CO.  ▼.  RANKIN. 


820,  321 


Ct.  Rep.  350,  9  Ann.  Caa.  1075;  Qull,  C.  & 
a  F.  R.  Co.  y.  Heflej,  158  U.  S.  98,  39  L. 
ed.  010,  15  Sup.  Ct.  Rep.  802;  Texas  k  P. 
R.  Co.  ▼.  Mugg,  202  U.  a  242,  50  L.  ed. 
1012,  26  Sup.  Ct.  Rep.  628. 

The  court  should  preaume  that  the  sched- 
ule of  ratea  providing  for  this  limited  valu- 
ation waa  properly  filed  with  the  Interstate 
Commerce  Commission,  aa  required  by  law. 

Clement  v.  Louisville  ft  N.  R.  Co.  153 
Fed.  979;  Meeker  v.  Lehigh  Valley  R.  Co. 
162  Fed.  359;  Knox  County  v.  Ninth  Nat. 
Bank,  147  U.  S.  94,  37  L.  ed.  95,  13  Sup. 
Ct.  Rep.  267;  1  Beach,  Contr.  §  717;  Green- 
hood,  Pub.  Pol.  Rule  130,  p.  118 ;  2  Elliott, 
Contr.  §  1061;  2  Chamber layne,  Ev.  §  1056; 
Bradner,  Ev.  p.  362,  §  26;  Gefaty'v.  At- 
lantic Coast  Line  R.  Co.  211  Fed.  227. 

Where  the  common-law  liability  of  the 
carrier  was  waived  by  contract,  such  carrier 
was  liable  only  for  a  breach  of  its  duty  to 
exercise  ordinary  care  to  protect  freight 
from  loss  in  transportation. 

Memphis  ft  C.  R.  Co.  v.  Reeves,  10  Wall. 
176,  19  L.  ed.  909;  United  States  Exp.  Co. 
y.  Kountze  Bros.  8  Wall.  342,  19  L.  ed.  457; 
Holladay  v.  Kennard,  12  Wall.  254,  20  L. 
ed.  390;  1  Hutchinson,  Carr.  §  292;  2  Hutch- 
inson, Carr.  §  667. 

Messrs.  W.  B.  HlUer  and  Charles  O. 
Fox  argued  the  cause  and  filed  a  brief  for 
defendants  in  error: 

A  special  plea,  or  one  setting  up  an  af- 
firmative defense,  imposes  the  burden  of  evi- 
dence on  the  party  introducing  such  plea. 

Oaugh  y.  Henderson,  2  Head,  629 ;  Brown 
V.  Phelon,  2  Swan,  629;  Carter  v.  Turner,  5 
Sneed,  179;  Douglass  v.  Brandon,  6  Baxt. 
68. 

A  plea  bringing  forward  a  substantive 
fact  is  not  supported  by  one  presumption 
based  on  another  or  other  presumptions. 

16  Cyc.  1050,  1051;  United  States  v.  Ross, 
92  U.  S.  218,  23  L.  ed.  707;  First  Nat.  Bank 
V.  Stewart,  114  U.  S.  224,  29  L.  ed.  101, 
6  Sup.  Ct.  Rep.  845 ;  Manning  v.  John  Han- 
cock Mut.  L.  Ins.  Co.  100  U.  S.  693,  25  L. 
ed.  761;  East  Tennessee  ft  W.  N.  C.  R.  Co. 
▼.  Lindamood,  111  Tenn.  458,  78  S.  E.  99; 
De  Glopper  v.  Nashville  R.  ft  Light  Co.  123 
Tenn.  633,  33  L.R.A.(NJ5.)913,  134  S.  W. 
609. 

The  dangerous  condition  made  and  main- 
tained by  the  carrier,  coupled  with  the  reck- 
less conduct  of  the  engineer,  assuredly  made 
a  clear  case  of  loss  caused  by  the  carrier. 
There  was  no  other  cause.  The  cow  cross- 
ing the  tracks  was  only  a  remote  cause. 
Hence^  liability  is  clearly  fixed  regardless  of 
what  construction  may  be  giyen  the  words 
"caused  by  it."  Aa  respects  the  carrier, 
this  loss  waa  "caused  by  it.'' 
•0  li.  ed. 


Louisville  ft  N.  R.  Co.  ▼.  Warfleld,  6  Ga. 
App,  553,  65  S.  E.  308. 

If  for  no  other  reason,  the  limitation  of 
value  should  fail  because  utterly  lacking 
in  mutuality. 

9  Cyc.  244,  245;  39  Cyc.  686;  Clark  V. 
Small,  6  Yerg.  423. 

The  carrier  had  better  facilities  and 
greater  means  of  knowledge  for  proving  the 
affirmative  defense  contained  in  its  pleas 
than  had  the  shipper  to  prove  a  negative. 
And  the  failure  to  prove  its  pleaa  or  offer 
any  evidence  of  the  fact  that  the  published 
freight  rates  and  the  tariff  regulations  re* 
ferred  to  were  l^^lly  authorized  reacts  with 
special  force  against  it. 

Brown  v.  Raisin  Fertilizer  Co.  124  Ala. 
221,  26  So.  891 ;  Cook  v.  Guirkin,  119  N.  C. 
13,  25  S.  E.  715;  see  also  N.  H.  Blitch  Co. 
V.  Atlantic  Coast  Line  R.  Co.  87  S.  C.  115, 
69  S.  E.  16. 

Mr;  Justice  McReynolds  delivered  the 
opinion  of  the  court: 

Defendants  in  error,  experienced  shippers, 
on  November  6,  1911,  delivered  to  plaintiff 
railway  at  Danville,  Kentucky,  a  car  of 
mules,  nineteen  of  which  they  owned,  for 
transportation  to  Atlanta,  Georgia.  They 
signed  and  accepted  a  through  bill  of  lad- 
ing, the  pertinent  portions  of  which  fol- 
low: 

Contract  for  limited  liability  in  the  trans- 
portation of  live  stock  at  reduced  rates. 

3.  Limit  of  value. — ^That  this  agreement 
is  subject  to  the  following  terms  and  con- 
ditions, which  the  said  shipper  accepts  as 
just  and  reasonable,  and  which  he  admits 
having  read  and  having  had  explained  to 
him  by  the  agent  of  the  said  carrier,  viz,: 

That  the  published  freight  rates  on  live 
stock  of  said  carrier  are,  in  all  cases,  based 
on  the  following  maximum  calculations, 
which  are  as  high  as  the  profit  in  the 
freight  rates  will  admit  of  the  carrier  as- 
suming responsibility  for: 
... 

Horses  or  mules,  not  exceeding  $75  each 


... 


That  the  tariff  regulations  of  said  car- 
rier provide  that  for  every  increase  of  100 
per  cent,  or  fraction  thereof,  in  the  above 
valuations,  there  shall  be  an  increase  of 
50  per  cent  in  the  freight  rate;  and  that 
the  said  shipper,  in  order  to  avail  himself 
of  said  published  freight  rates,  agrees  that 
said  carrier  shall  not,  in  any  case  of  loss 
[321]  or  damage  to  said  live  stock,  be 
liable  for  any  sum  in  excess  of  the  actual 
value  of  said  stock  at  the  place  and  date  of 
shipment,  nor  for  any  amount  in  excess  of 
the  values  stated  above,  which  are  hereby 
agreed  to  be  not  leas  than  the  just  and  true 

109 


321-323 


SUPREME  COURT  OF  THE  UNITBD  STATES. 


Cot.  Tebm, 


values  of  the  animaU,  iinleaa  an  additional 
amount  is  herein  stated  and  paid  for. 

4.  Guaranteed  freight  rate. — ^That  the 
rate  of  freight  guaranteed  by  said  carrier, 
in  view  of  the  above  stipulated  valuations 

is  I per  from  : to  

—  and  that  said  shipper  accepts  this  rate 
of  freight,  and  agrees  to  pay  same  at  desti- 
nation in  connection  with  the  charges  ad- 
vanced by  said  carrier,  as  indicated  above, 
and  any  other  legitimate  charges  which 
said  carrier  may  advance  for  account  of 
said  shipper  between  point  of  shipment  and 
destination  for  feed,  water,  etc. 

A  wreck  occurred  at  Dayton,  Tennessee; 
some  of  the  animals  were  killed;  others 
were  injured  and  afterwards  sold  by  plain- 
tiff in  error;  and  shippers  brought  this 
suit  in  the  circuit  court,  Hamilton  county, 
Tennessee,  to  recover  $4,750, — $250  per  head. 

The  declaration  contains  two  counts.  The 
first — a  common-law  count  on  a  general 
contract  of  affreightment — alleges  delivery 
with  agreement  to  pay  full  freight  charges 
and  that  the  carrier  accepted  and  agreed 
to  transport  safely,  but  failed  so  to  do. 
The  second  sets  up  execution  and  delivery 
of  the  bill  of  lading  annexed  as  an  exhibit, 
but  declares  shippers  knew  nothing  of  the 
limited-liability  provision  therein;  and  fur- 
ther ''that  the  whole  of  said  paper,  and 
especially  the  $75  limitation,  is  void  and 
of  no  effect  and  is  not  operative  or  binding 
on  them  or  either  of  them,''  because  (1) 
executed  in  Kentucky,  under  whose  laws  it 
is  void;  (2)  unreasonable  and  unjust;  (3) 
no  other  contract  of  transportation  was 
offered,  and  shippers  were  not  aware  that 
the  transportation  was  to  take  place  at 
reduced  rates  and  under  stipulations  for 
limited  liability ;  ( 4 )  there  was  no  consider- 
ation; (5)  the  [322]  parties  were  not  on 
equal  terms.  It  also  denounces  as  untrue 
statements  in  clause  3  of  the  bill  concerning 
published  freight  rates  and  tariff  regula- 
tions. 

The  railway  filed  nine  pleas;  two  general 
— ^"not  guilty"  and  "that  it  did  not  breach 
the  contract  of  carriage"  as  alleged — and 
seven  special  ones.  Among  other  things, 
the  company  avers  in  the  latter:  That  it 
had  duly  filed  with  the  Interstate  Commerce 
Commission  and  had  published  and  kept 
open  for  inspection  schedules  of  joint  rates 
between  Danville,  Kentucky,  and  Atlanta; 
they  contained  classifications  of  freight  in 
force,  and  stated  separately  all  terminal  and 
other  charges,  and  provided  that  carload 
rates  upon  horses  and  mules,  where  valued 
not  above  $75  each,  should  be  $95  per  car, 
and  for  every  increase  of  100  per  cent  or 
fraction  thereof  there  should  be  an  increase 
of  50  per  cent  in  rate;  plaintiffs  knew  the 
10S4 


I  company's  freight  rate  was  based  upon 
specified  values  and  that  it  stood  ready  to 
transport  at  increased  valuation  and  rate, 
and,  knowing  these  facta,  they  declared  the 
value  specified,  and  thereby  obtained  the 
cheaper  rate  of  $95  per  car.  That  the  re- 
ceipt or  bill  of  lading  duly  signed  by  ship- 
pers fixes  a  maximum  value;  contains  defi- 
nite recitals  (set  out  above)  in  respect  of 
rates,  etc.,  and  "with  all  the  provisions 
thereof,  is  valid  and  binding  upon  the  plain- 
tiffs and  the  defendant  when  applied  to  in- 
terstate shipments  which  are  governed  by 
the  acts  of  Congress  of  February  4,  1887 
(24  Stat,  at  L.  379,  chap.  104),  and  June 
29,  1906  (34  Stat,  at  L.  584,  chap.  3591, 
Comp.  Stat.  1913,  §  8563),  and  defendant 
pleads  and  relies  upon  the  same  as  a  com- 
plete bar  to  any  recovery  (in  excess  of  $75) 
for  such  mules  as  were  actually  killed  and 
such  ones  as  were  actually  damaged  to  the 
amount  of  $75." 

Issue  being  joined,  the  cause  was  tried 
to  a  jury.  D.  F.  Rankin,  testifying  for 
himself,  declared  the  mules  were  worth 
from  $230  to  $240  each;  described  the  cir- 
cumstances surrounding  shipment,  identified 
exhibited  bill  of  lading  as  signed  and  ac- 
cepted by  him,  but  stated  he  did  not  read 
[323]  it,  and  nothing  was  said  about  rates, 
and  that  he  was  not  aware  of  the  $75  limit- 
ation; admitted  he  had  shipped  stock  over 
same  route  before,  paying  $95  per  car;  and 
asserted  he  had  seen  no  printed  tariff  rates 
from  Danville  to  Atlanta.  The  bill  so 
identified  was  treated  throughout  the  trial 
as  properly  in  evidence;  but  no  duly  filed 
and  applicable  rate  schedules  were  pre- 
sented, nor  did  the  railway  introduce  any 
evidence  to  support  its  special  pleas. 

The  trial  judge  held: 

"The  one  controlling  point  in  this  case  ia 
as  to  whether  or  not  there  is  a  presumption 
in  favor  of  the  defendant's  compliance  with 
the  law  whereby  it  seeks  by  its  action  to 
escape  from  liability." 

"There  is  no  doubt  in  the  mind  of  the 
court  but  that  if  the  railroad  were  charged 
with  a  violation  of  the  provisions  of  the 
interstate  commerce  act,  a  presumption  in 
favor  of  its  compliance  would  arise;  but 
where  the  railroad,  as  in  this  case,  sets  up, 
as  a  matter  of  defense,  its  compliance  with 
the  provisions  of  that  act,  the  court  is  of 
the  opinion  that  there  is  no  presumption  in 
its  favor,  and  that  the  burden  of  proof  is 
on  the  defendant  to  show  a  substantial  com- 
pliance with  the  provisions  of  the  act." 

"It  therefore  follows  that  under  the  facta 
in  this  case,  the  undisputed  facts  and  the 
decisions  of  our  courts  on  this  subject,  that 
the  court  is  of  the  opinion  that  the  con- 
tract in  this  case  is  invalid,  and  the  ques- 
tion goes  to  the  jury  as  to  the  negligenee 

241  U.  S. 


1016. 


CINOINNATI,  N.  O.  ft  T.  P.  R.  00.  ▼.  RANKIN. 


82S-326 


ol  the  defendant  on  thie  shipment  ai  ntotkJ* 
And  he  eharged  the  jury: 

"If  you  find  from  the  proof  in  this  ease 
that  the  plaintiff  did  deliTer  in  good  ocm- 
dition  nineteen  mules  to  the  defen^mt  to  be 
transported  to  Atlanta,  Ge(»rgia,  and  that 
there  was  an  accident,  a  collision  on  the 
railroad,  then  the  hurden  is  upon  the  rail- 
way company  to  show  that  H  has  not  been 
guilty  of  any  negligence. 

[324]  '^f  the  defendant  company  shows 
you  by  the  greater  weight  or  the  preponder- 
ance of  the  evidence  its  freedom  from  negli- 
gence, then  the  plaintiff  is  not  entitled  to 
recover. 

'^f  you  reach  the  conclusion  that  the 
plaintiff  has  made  out  his  case  and  is  en- 
titled to  recover  for  the  value  of  the  nine- 
teen mules,  then  he  would  be  entitled  to 
recover  the  value  of  the  mules  at  the  place 
of  their  destination,  in  this  case,  Atlanta, 
Georgia,  according  to  their  value  at  the 
time  they  would  have  been  delivered  but 


authority  and  outside  of  the  act  of  Oongress, 
invoked  by  this  defendant;  or,  in  other 
words,  so  far  as  the  interstate  commerce 
act  is  concerned,  this  railroad  company  has 
made  the  contract  in  violation  of  its  provi* 
sions. 

"There  is  no  proof  that  the  railroad 
company  had  any  other  rate  than  the  one 
charged  plaintiffs  for  this  shipment  between 
Danville^  Kentudcy,  and  Atlanta,  Georgia. 
There  is  no  proof  that  it  offered  to  plidn- 
tiffs,  at  the  time  it  issued  to  them  its  bill 
of  lading,  a  contract  with  unlimited  lia- 
bility, or,  in  other  words,  a  common-law 
liability.    .    .    . 

"...  If  the  company  had  any  other 
rate  than  the  one  it  agreed  for  the  trans- 
portation of  this  freight,  it  did  not  disclose 
that  fact  to  the  shipper,  nor  did  it  have 
any  rate  whatever  posted  in  or  about  its 
office.  If  it  had  a  shipping  ocmtract  with 
unlimited  liability  it  did  not  choose  be- 
tween the  two,  and,  from  the  undisputed 


for  the  negligence  of  the  carrier,  less  what-   **<^  developed  in  this  record,  it  is  cl»r 

to  our  minds  this  contract  is  void  and  the 


ever    transportation    charges    there    would 
have  been  on  this  car  of  stock. 

"It  is  also  in  the  discretion  of  the  jury 
to  award  interest  on  any  recovery  from  the 
time  of  the  loss  up  to  the  present  time." 
.  .  .  "Negligence  is  the  want  or  lack 
of  exercise  of  that  degree  of  care  which  the 
particular  circumstances  demands.  In  this 
case  the  carrier  is  held  to  the  highest  de- 
gree of  care  for  the  safe  transportation  of 
the  animals." 

Judgment  upon  a  verdict  for  $4,180 — $220 
per  head — and  $328.82  interest  was  affirmed 
by  the  court  of  civil  appeals,  and  the  su- 
preme court  approved  this  action  without 
opinion. 

The  court  of  civil  appeals  inter  alia  de- 
clared: 

"It  hardly  appears  debatable  to  us,  that 
it  was  incumbent  upon  the  railroad  com- 
pany, in  this  case,  in  the  present  state  of 
the  pleadings,  to  show  by  proof  that  it  had 
met  the  requirements  of  the  interstate  com- 
merce act,  and  this  burden  it  failed  to  carry, 
and  having  failed  to  do  so,  it  cannot  rely 
upon  presumption. 

"Having  reached  this  conclusion,  it  re- 
mains to  be  determined  what  are  the  rights 
and  liabilities  of  these  parties,  under  the 
contract  of  carriage  in  this  case.  There 
being  nothing  in  the  record  to  show  that 
the  rate  of  freight  charged  by  the  company 
was  approved  and  authorised  by  the  Inter- 
state Oommerce  Commission,  we  must  de- 
termine the  rights  of  these  parties  upon 
the  theory  that  no  [325]  such  rate  was 
ever  filed  with  the  Commission,  or  approved 
or  authorised  by  it,  and  that  the  rate  and 


limited-liability  clause  therein  cannot  be 
relied  upon  by  the  company  as  a  bar  to  the 
recovery  of  full  value  of  each  animal 
shipped.  If,  however,  the  defendant  had 
shown,  by  proof,  that  the  rate  charged  by 
it  for  this  freight  had  been  filed  with  and 
approved  by  the  Interstate  Commerce  Com- 
mission, and  that  it  had  posted  tlie  rate, 
as  required  by  the  act  of  Congress,  then 
a  rate  of  freight  based  upon  the  valuation 
fixed  in  the  bill  of  lading  would  have  limited 
plaintiffs'  right  to  recover  to  the  value  fixed 
in  the  contract." 

Plaintiff  in  error  maintains,  first,  that, 
not  having  been  negligent,  it  Is  not  lisble 
for  any  sum;  and,  second,  that  in  any  event 
it  is  protected  by  a  valid  limitation  in  the 
bill  of  lading. 

Counsel  concede  lisbilHy  of  a  common 
carrier  under  the  long-recognized  common- 
law  rule  not  only  for  negligence,  [326]  but 
also  as  an  insurer,  and  that  unless  the  Car- 
mack  amendment  (copied  in  margin  i)  has 
changed  this  rule,  the  railway  is  responsible 
for  damages  not  exceeding  specified  value. 
But  they  insist  that  in  Adams  Exp.  Co.  v. 
Croninger,  226  U.  8.  491,  67  L.  ed.  314,  44 
L.RA.(N.8.)  257,  33  Sup.  Ct.  Rep.  148,  we 
held  this  amendment  restricts  a  carrier's 
liability  to  loss  "caused  by  it."  And,  con- 
sequoitly,  they  say,  the  trial  court  erred 
when  it  charged:    "In  this  case  the  carrier 


1  "That  any  common  carrier,  railroad,  or 
transportation  company  receiving  property 
for  transportation  from  a  point  in  one  state 
to  a  point  in  another  state  shall  issue  a  re- 
ceipt or  bill  of  lading  therefor  and  shall 
be  liable  to  the  lawfm  holder  thereof  fo' 
contract  made  in  this  case  was  without  the  any  loss,  damage,  or  injury  to  such  pr 


•0  li.  ed. 


66 


U 


326-328 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


is  held  to  the  highest  degree  of  care  for  the 
safe  transportation  of  the  animals." 

Construing  the  Carmack  amendment,  we 
said  through  Mr.  Justice  Lurton  in  the 
ease  cited  (pp.  606,  507):  "The  lUhility 
thus  imposed  is  limited  to  'any  loss,  injury, 
or  damage  caused  by  it  or  a  succeeding 
carrier  to  whom  the  property  may  be  de- 
livered,' and  plainly  implies  a  liability  for 
some  default  in  its  common-law  duty  as  a 
common  carrier."  Properly  understood, 
neither  this  nor  any  other  of  our  opinions 
holds  that  this  amendment  has  changed  the 
common-law  doctrine  theretofore  approved 
by  us  in  respect  of  a  carrier's  liability  for 
loss  occurring  on  its  own  line. 

The  state  courts,  treating  the  bill  of 
lading  as  properly  in  evidence,  undertook 
to  determine  its  validity  and  effect.  We 
need  not,  therefore,  consider  the  mooted 
questions  of  pleading.  The  shipment  being 
interstate,  rights  and  liabilities  of  the  par- 
ties depend  upon  acts  of  Congress,  the  bill 
[327]  of  lading,  and  common-law  rules  as 
accepted  and  applied  in  Federal  tribunals. 
Cleveland,  C.  C.  &  St.  Li.  R.  Co.  v.  Dettle- 
bach,  230  U.  S.  588,  ante,  453,  36  Sup.  Ct. 
Rep.  177;  Southern  Exp.  Co.  v.  Byers,  240 
U.  S.  612,  ante,  825,  36  Sup.  Ct.  Rep.  410, 
and  cases  cited;  Southern  R.  Co.  ▼.  Prescott, 
240  U.  S.  632,  ante,  836,  36  Sup.  Ct.  Rep. 
469. 

We  cannot  assent  to  the  theory  appar- 
ently adopted  below  that  the  interpreta- 
tion and  effect  of  a  bill  of  lading  issued  by 
a  railroad  in  connection  with  an  interstate 
shipment  present  no  Federal  question  un- 
less there  is  affirmative  proof  showing  actual 
compliance  with  the  interstate  commerce 
act.  It  cannot  be  assumed,  merely  because 
the  contrary  has  not  been  established  by 
proof,  that  an  interstate  carrier  is  conduct- 
ing its  affairs  in  violation  of  law.  Such  a 
carrier  must  comply  with  strict  require- 
ments of  the  Federal  statutes  or  become 
subject  to  heavy  penalties,  and,  in  respect 
of  transactions  in  the  ordinary  course  of 
business,  it  is  entitled  to  the  presumption 
of  right  conduct.  The  law  "presumes  that 
every  man,  in  his  private  and  official  char- 
acter, does  his  duty,  until  the  contrary  is 
proved,  it  will  presume  that  all  things  are 
rightly  done,  unless  the  circumstances  of 
the  case  overturn  this  presumption,  accord- 
ing to  the  maxim,  omnia  preaumuntur  rite 
et  8olemnitur  ease  acta,  doneo  prohetur  in 
contrarium."     Bank    of    United    States   v. 


Dandridge,  12  Wheat.  64,  69,  70,  6  L.  ed. 
552,  554,  555;  Knox  County  v.  Ninth  Nat 
Bank,  147  U.  S.  91,  97,  37  L.  ed.  93,  95,  IS 
Sup.  Ct  Rep.  267;  Maricopa  &  P.  R.  Co.  v. 
Arizona,  156  U.  8.  347,  351,  39  L.  ed.  447, 
449,  15  Sup.  Ct.  Rep.  391;  Sun  Printing  k 
Pub.  Asso.  V.  Moore,  183  U.  S.  642,  649,  46 
L.  ed.  366,  372,  22  Sup.  Ct.  Rep.  240. 

Under  our  former  opinions  the  settled 
doctrine  is  that  where  alternate  rates,  fairly 
based  upon  valuation,  are  offered,  a  railroad 
may  limit  its  liability  by  special  contract. 
George  N.  Pierce  Co.  v.  Wells,  F.  &  Co.  236 
U.  S.  278,  283,  59  L.  ed.  576,  581,  35  Sup. 
Ct.  Rep.  351. 

The  essential  choice  of  rates  must  be  made 
to  appear  before  a  carrier  can  successfully 
claim  the  benefit  of  such  a  limitation  and 
relief  from  full  liability.  And  as  no  inter- 
state rates  are  lawful  unless  duly  filed  with 
the  Commission,  it  may  become  necessary 
for  the  carrier  to  prove  its  [328]  schedules 
in  order  to  make  out  the  requisite  choice. 
But  where  a  bill  of  lading,  signed  by  both 
parties,  recites  that  lawful  alternate  rates 
based  on  specified  values  were  offered,  sucli 
recitals  constitute  admissions  by  the  shipper 
and  sufficient  prima  facie  evidence  of  choice. 
If,  in  such  a  case,  the  shipper  wishes  to 
contradict  his  own  admissions,  the  burden 
of  proof  is  upon  him.  York  Mfg.  Co.  v. 
Illinois  C.  R.  Co.  3  Wall.  107,  113,  18  L.  ed. 
170,  172;  The  Delaware,  14  Wall.  679,  601, 
20  L.  ed.  779,  783;  Hart  v.  Pennsylvania  R. 
Co.  112  U.  S.  331,  337,  28  L.  ed.  717,  719, 
5  Sup.  Ct.  Rep.  151 ;  Cau  v.  Texas  &  P.  R. 
Co.  194  U.  8.  427,  431,  48  L.  ed.  1053,  1056, 
24  Sup.  Ct.  Rep.  663,  16  Am.  Xeg.  Rep. 
659;  Squire  v.  New  York  C.  R.  Co.  98 
Mass.  239,  248,  93  Am.  Dec.  102;  Wabash 
R.  Co.  V.  Curtis,  134  111.  App.  409.  412; 
Hutchinson,  Carr.  3d  ed.  §  475. 

The  bill  of  lading  in  question  is  plainly 
entitled,  "Contract  for  Limited  Liability  in 
the  Transportation  of  Live  Stock  at  Reduced 
Rates,"  and  contains  the  conspicuous  provi- 
sions concerning  published  rates,  tariff  regu- 
lations, choice  offered  the  shipper,  and  limit 
upon  the  carrier's  liability,  etc.,  above  set 
out.  In  view  of  these  recitals  and  admis- 
sions, the  limitation  of  liability  must  be 
treated  as  prima  facie  valid,  and,  conse- 
quently, the  trial  court  erred  in  holding  it 
void  as  a  matter  of  law,  and  permitting  a 
recovery  for  full  value  of  the  animals. 

The  judgment  below  is  reversed  and  the 
cause  remanded  to  the  Supreme  Court  of 


ertv  caused  by  it  or  by  any  common  carrier, 
railroad,  or  transportation  company  to 
which  such  property  may  be  delivered  or 
over  whose  Ime  or  lines  such  property  may 
pass,  and  no  contract,  receipt,  rule,  or  regu- 
lation shall  exempt  such  common  carrier, 
railroad,  or  transportation  company  from 
1026 


the  liability  hereby  imposed:  Provided, 
That  nothing  in  this  section  shall  deprive 
any  holder  of  such  receipt  or  bill  of  lading 
of  any  remedy  or  right  of  action  which  he 
has  under  existing  law.  .  .  .*'  (Chap. 
3591,  34  SUt.  at  L.  584,  595,  Comp.  SUt 
1913,  §§  8563,  8592. 

141  U.  S. 


1016. 


DONALD  V.  PHILADELPHIA  ft  R.  COAL  ft  I.  CO. 


328,  329 


TenneMee  for  further   proceedings  not  in- 
consistent  with   this   opinion. 
Reversed. 


[829]  JOHN  S.  DONALD,  Secretary  of 
State  of  the  State  of  Wisconsin,  and  Wal- 
ter C.  Owen,  Attorney  General  of  the 
State  of  Wisconsin,  Appts., 


▼. 


PHILADELPHIA   &    READING    COAL   A 
IRON  COMPANY.     (No.  263.) 


JAMES  A.  FREAR,  in  His  Capacity  as 
Secretanr  of  State  of  the  State  of  Wis- 
consin, Appt., 

▼. 

WESTERN    UNION    TELEGRAPH    COM- 
PANY.     (No.  264.) 

(See  S.  C.  Reporter's  ed.  329-333.) 

Removal  of  oanses  —  restrictioii  of 
ri^ht  by  state  —  foreign  corporation. 

An  unconstitutional  attempt  to  pre- 
vent foreign  corporations  doing  both  inter- 
state and  intrastate  business  Irom  remov- 
ing to  a  Federal  court  suits  brought  against 
them  in  a  Wisconsin  court  by  citizens  of 
that  state  is  made  by  the  provisions  of 
Wis.  Stat.  §  1770f,  for  the  revocation  by 
the  secretary  of  state  of  the  license  of  any 
foreign  corporation  to  do  business  within 
the  state  wnenever  it  shall  remove  or  make 
application  to  remove  to  a  Federal  court 
any  suit  brought  against  it  by  any  citizen 
of  the  state  upon  a  claim  or  cause  of  ac- 
tion arising  within  the  state. 
[For  other  cases,  see  Removal  of  Caases,  II.  a ; 
Cornorations,  XII.  b,  2,  In  Digest  Sup.  Ct. 

[Nos.  263  and  264.] 

Argued  April  13,  1936.     Decided  May  22, 

1916. 

TWO  APPEALS  from  the  District  Court 
of  the  United  States  for  the  Western 
District  of  Wisconsin  to  review  decrees  en- 
joining the  revocation  of  the  licenses  of  for- 
eign corporations  to  do  business  within  the 
state  because  of  the  removal  to  a  Federal 
court  of  suits  brought  against  them  by  citi- 
zens of  the  state.    Affirmed. 

See  same  case  below,  216  Fed.  199. 

The  facts  are  stated  in  the  opinion. 

Mr.  J.  E.  .Messerschntldt  argued  the 
cause,  and,  with  Mr.  Walter  C.  Owen,  Attor- 
ney Greneral  of  Wisconsin,  filed  a  brief  for 
appellants : 

The  provision  of  the  Wisconsin  statutes. 

Note. — On  revocation  of  license  of  for- 
eign corporation  on  account  of  removal  of 
action  to  Federal  court — see  note  to  Harri- 
son V.  St.  Louis  &  S.  F.  R.  Co.  L.R.A.1916F, 
1187. 
•0  l4.  ed. 


that,  if  a  foreign  corporation  shall  remove 
or  make  application  to  remove  into  any  dis- 
trict or  circuit  court  of  the  United  States 
any  action  or  proceeding  comnipnced  against 
it  by  any  citizen  of  Wisconsin  upon  any 
claim  or  cause  of  action  arising  within  this 
state,  the  license  issued  to  such  corporation 
shall  be  void,  and  the  secretary  of  state 
shall  enter  sucli  forfeit  in  the  records  in 
his  department,  has  not  for  its  object  to 
oust  the  Federal  court  of  jurisdiction,  but 
the  primary  purpose  is  the  putting  of  for- 
eign corporations  on  substantially  the  same 
footing  as  domestic  corporations,  and  such 
is  the  result. 

State  ex  rcl.  Drake  v.  Doyle,  40  Wis.  175, 
22  Am.  Rep.  692;  Independent  Tug  IJne 
V.  Lake  Superior  Lumber  &  Box  Co.  146 
Wis.  121,  131  N.  W.  408;  Security  Mut. 
L.  Ins.  Co.  V.  Prewitt,  202  U.  S.  246,  60 
L.  ed.  1013,  26  Sup.  Ct.  Rep.  619,  6  Ann.  Cas. 
317 ;  Doyle  v.  Continental  Ins.  Co.  94  U.  S. 
635,  24  L.  ed.  148. 

The  mandate  of  the  14th  Amendment  to 
the  Constitution  of  the  United  States,  that 
no  state  shall  make  or  ^force  any  law 
which  shall  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws, 
is  applicable  to  remedial  rights. 

Ex  parte  Strieker,  109  Fed.  160;  Barbier 
T.  Connolly,  113  U.  S.  27,  28  L  ed.  923,  5 
Sup.  Ct.  Rep.  367;  Johnson  v.  Goodyoar 
Min.  Co.  127  Cal.  4,  47  L.R.A.  338.  78  Am. 
St.  Rep.  17,  59  Pac.  304;  8  Cyc.  107C; 
Randolph  v.  Builders'  &  Painters'  Supply 
Co.  106  Ala.  501,  17  So.  721;  Brannon,  14th 
Amend.  343;  Missouri  v.  I^wis  (Bowman 
V.  Lewis)  101  U.  S.  22,  25  L  ed.  989;  Dur- 
kee  T.  Janesville,  28  Wis.  464,  9  Am.  Rep. 
600;  Janesville  v.  Carpenter,  77  Wis.  288, 
8  L.R.A.  808,  20  Am.  St.  Rep.  123,  40  N.  W. 
128;  State  ex  rel.  Kellogg  v.  Currens,  111 
Wis.  431,  66  L.R.A.  2.32,  87  N.  W.  561: 
Southern  R.  Co.  v.  Green,  216  U.  S.  400,  54 
L  ed.  536,  30  Sup.  Ct.  Rep.  287,  17  Ann. 
Cas.  1247. 

The  rule  of  comity  goes  only  so  far  as  to 
place  foreign  corporations  on  an  equal  basis 
with  domestic  corporations,  but  never  be- 
yond. 

6  Thomp.  Corp.  2d  ed.  §  6628;  Clarke  v. 
Central  R.  k  Bkg.  Co.  15  L.R.A.  683,  60  Fed. 
338;  Van  Steuben  v.  Central  R.  Co.  178  Pa. 
367,  34  L.R.A.  577,  35  Atl.  992;  Presby- 
terian Ministers  Fund  v.  Thomas,  126  Wis. 
281,  110  Am.  St.  Rep.  919,  106  X.  W.  801} 
6  Thomp.  Corp.  §  7885;  2  Morawetz,  Priv. 
Corp.  2d  ed.  §  965;  Empire  Mills  v.  Alston 
Grocery  Co.  —  Tex.  App.  — ,  16  S.  W.  200; 
Bank  of  Augusta  v.  Earle,  13  Pet.  519,  10 
L.  ed.  274;  Horn  Silver  ^lin.  Co.  v.  New 
York,  143  U.  S.  305,  36  L  ed.  164,  4  Inters. 
Com.  Rep.  67,  12  Sup.  Ct.  Rep.  403;  His- 
key  ▼.  Pacific  States  Sav.  L.  &  BIdg.  Co. 

10^ 


SUPREME  OOUBT  OF  THE  UNITED  STATES. 


Oct.  Tmmm, 


27  Utah,  409,  76  Pac.  20;  Fowler  ▼.  Bell, 
90  Tex.  150,  39  L.RJL  254,  69  Am.  St.  Rep. 
788,  37  S.  W.  1058;  Coler  t.  Tacoma  R.  ft 
Power  Co.  65  N.  J.  £q.  347, 103  Am.  St.  Rep. 
786,  54  Atl.  413;  White  ▼.  Howard,  46  N.  Y. 
144;  Falls  y.  United  States  SaT.  L.  &  Bldg. 
Co.  97  Ala.  417,  24  URJL.  174,  38  Am.  St. 
Rep.  194,  13  So.  25;  Walter  ▼.  Whitlock, 
9  Fla.  86,  76  Am.  Deo.  607;  Harding  ▼. 
American  Glucose  Co.  182  111.  551,  64  L.ItA. 
738,  74  Am.  St.  Rep.  189,  55  N.  E.  577; 
United  States  Mortg.  Co.  t.  Qross,  93  III. 
483;  Faulkner  v.  Hyman,  142  Mass.  53,  6 
N.  £.  846;  People  v.  Howard,  60  Mich.  239, 
16  N.  W.  101;  State  ex  rel.  St.  Louis,  K. 
C.  &  C.  R.  Co.  V.  Cook,  171  Mo.  348,  71 
S.  W.  829;  Toomey  ▼.  Supreme  Lodge,  K. 
P.  74  Mo.  App.  507;  Fisher  t.  Lord,  63  N. 
H.  514,  3  Atl.  927. 

The  rule  of  the  Doyle  and  Prewitt  Cases, 
properly  qualified  and  limited  in  its  scope,  is 
applicable  to  this  statute,  and  is  sufficient  to 
sustain  its  constitutionality. 

Home  Ins.  Co.  ▼.  Morse,  20  Wall.  446,  22 
Ia.  ed.  365;  State  ex  rel.  Drake  v.  Doyle, 
40  Wis.  175,  22  Am.  Rep.  692;  Doyle  ▼. 
Continental  Ins.  Co.  94  U.  8.  535,  24  L.  ed. 
148;  Barron  t.  Burnside,  121  U.  S.  186,  30 
L.  ed.  915,  1  Inters.  Com.  Rep.  296,  7  Sup. 
Ct.  Rep.  931;  Security  Mul^  L.  Ins.  Co.  ▼. 
Prewitt,  202  U.  S.  246,  60  L.  ed.  1013,  26 
Sup.  Ct,  Rep.  619,  6  Ann.  Cas.  317;  National 
Council  ▼.  SUte  Council,  203  U.  S.  163,  61 
L.  ed.  137,  27  Sup.  Ct.  Rep.  46;  Swing  ▼. 
Weston  Lumber  Co.  206  U.  8.  278,  61  L. 
ed.  800,  27  Sup.  Ct.  Rep.  497;  Western  U. 
Teleg.  Co.  ▼.  Kansas,  216  U.  S.  1,  64  L.  ed. 
355,  30  Sup.  Ct.  Rep.  190;  Pullman  Co.  ▼. 
Kansas,  216  U.  S.  56,  54  L.  ed.  378,  30 
Sup.  Ct.  232;  Ludwig  ▼.  Western  U.  Teleg. 
Co.  216  U.  S.  146,  64  L.  ed.  423,  30  Sup.  Ct 
280;  Southern  R.  Co.  t.  Greene,  216  U.  S. 
400,  54  L.  ed.  636,  30  Sup.  Ct.  Rep.  287,  17 
Ann.  Cas.  1247;  Hemdon  y.  Chicago,  R.  I. 
k  P.  R.  Co.  218  U.  S.  136,  64  L.  ed.  970,  30 
Sup.  Ct.  Rep.  633 ;  Western  U.  Teleg.  Co.  v. 
Julian,  169  Fed.  166;  Harrison  v.  St.  Louis 
ft  S.  F.  R.  Co.  232  U.  S.  318,  68  L.  ed.  621, 
L.R.A.1015F,  1187,  34  Sup.  Ct.  Rep.  333. 

It  is  a  cardinal  rule  of  construction  that 
when  a  statute  is  susceptible  of  two  con- 
structions, one  of  which  supports  the  act 
and  gives  it  effect,  and  the  other  renders  it 
unconstitutional  and  void,  the  former  will 
be  adopted  even  though  the  latter  would  be 
the  more  natural  interpretation  of  the  lan- 
guage used. 

United  States  v.  Coombs,  12  Pet.  75,  9 
L.  ed.  1005 ;  United  States  ▼.  Central  P.  R. 
Co.  118  U.  S.  235,  30  L.  ed.  173,  6  Sup.  Ct. 
Rep.  1038;  Missouri  ex  rel.  Barton  County 
v.  Kansas  City,  Ft.  S.  &  G.  R.  Co.  32  Fed. 
722;  Grenada  County  v.  Brogden  (Grenada 
County  ▼.  Brown)  112  U.  S.  261,  28  L.  ed. 
1028 


I  704,  6  Sup.  Ct.  Rep.  126;  Singer  Mfg.  Co. 
'  Y.  McCollock,  24  Fed.  667 ;  Bigelow  ▼.  Wcit 
Wisconsin  R.  Co.  27  Wis.  478;  Palms  v. 
Shawano  County,  61  Wis.  211,  21  N.  W. 
77;  Johnson  v.  Milwaukee,  88  Wis.  889,  60 
N.  W.  270. 

The  complainant  in  this  case  has  no  right 
to  contend  that  the  statute  in  question  is 
unconstitutional,  while  at  the  same  time  re- 
taining the  benefits  that  it  received  by  res- 
son  of  a  license  having  been  issued  it  hj 
virtue  of  such  law. 

Ferguson  v.  Landram,  5  Bush,  230,  196 
Am.  Dec.  350;  Daniels  v.  Teamey,  102  U.  S. 
421,  26  L.  ed.  189. 

The  scope  and  meaning  of  a  state  statute, 
as  determined  by  the  highest  court  of  the 
state,  concludes  this  court  in  determining 
whether  or  not  such  statute  violates  the 
Federal  Constitution. 

Smiley  v.  Kansas,  196  U.  8.  447,  40  L.  ed. 
646,  25  Sup.  Ct.  Rep.  289;  National  Cotton 
Oil  Co.  V.  Texas,  197  U.  8.  115,  49  L.  ed. 
689,  25  Sup.  Ct.  Rep.  379;  Tampa  Water- 
works Co.  ▼.  Tampa,  199  U.  S.  241,  50  L. 
ed.  170,  26  Sup.  Ct.  Rep.  23;  Horn  Silver 
Min.  Co.  ▼.  New  York,  143  U.  S.  305,  36  L 
ed.  164,  4  Inters.  Com.  Rep.  67,  12  Sup.  Ct. 
Rep.  403;  Ducat  ▼.  Chicago,  10  Wall.  410, 
19  L.  ed.  972;  Paul  ▼.  Vii^a,  8  WaU.  168, 
19  L.  ed.  367. 

The  Wisconsin  statutes  relating  to  foreign 
companies  do  not  in  any  way  interfere  with 
or  affect  interstate  commerce. 

Ashland  Lumber  Co.  ▼.  Detroit  Salt  Ca 
114  Wis.  66,  89  N.  W.  904;  Beaser  y.  Bar- 
ber Asphalt  Paving  Co.  120  Wis.  699,  98 
N.  W.  526 ;  Chicago  Title  &  T.  Co.  ▼.  Bash- 
ford,  120  Wis.  281,  97  N.  W.  040;  Greek- 
American  Sponge  Co.  v.  Richardson  Drug 
Co.  124  Wis.  469,  109  Am.  St.  Rep.  961, 
102  N.  W.  888;  Presbyterian  Ministers  Fund 
V.  Thomas,  126  Wis.  281,  110  Am.  St.  Rep. 
919,  105  N.  W.  801;  Allen  v.  Milwaukee, 
128  Wis.  678,  6  L.ILA.(N.S.)  680,  116  Am. 
St.  Rep.  54,  106  N.  W.  1099,  8  Ann.  Cas. 
392;  Chickering-Chase  Bros.  Co.  v.  White, 
127  Wis.  83,  106  N.  W.  797;  Catlin  &  P.  Co. 
V.  Schuppert,  130  Wis.  642,  110  N.  W.  818; 
Elwell  V.  Adder  Mach.  Co.  136  Wis.  82,  116 
N.  W.  882. 

The  revocation  of  the  license  of  the  re- 
spondent does  not  deprive  it  of  any  consti- 
tutional rights. 

Pratt  V.  Brown,  3  Wis.  603;  Madison,  W. 
&  M.  PL-road  Co.  v.  Reynolds,  3  Wis.  287; 
Blair  v.  Milwaukee  ft  P.  du  C.  R.  Co.  20 
Wis.  254,  10  Am.  Neg.  Cas.  518;  SUte  v. 
Milwaukee  Gaslight  Co.  29  Wis.  454,  9  Am. 
Rep.  598;  Chicago  Title  &  T.  Co.  v.  Bash- 
ford,  120  WU.  281,  97  N.  W.  940;  Coe  v. 
Rockman,  126  Wis.  515,  106  N.  W.  290; 
Louisville  ft  N.  R.  Co.  v.  Kentucky,  183  U. 
S.  503,  46  L.  ed.  298,  22  Sup.  Ct.  Rep.  95; 

241  U.  8. 


1UI5.                      DONALD  T.  FHILADBLPUIA  &  R.  CUAL  &  I.  00.  331 

Chicago,  B.  A  Q.  R.  Go.  t.  Iowa  (Chicago,  foreign  corporatlone  on  the  one  hand  and 

B.  &  Q.  B.  Co.  V.  Cutta)   94  U.  8.  165,  £4  domestic  corpontiona  and  individual!  (reai- 

L.   ed.   94;   Oaborne  t.   Florida,   164   U.   S.  dent  or  nonreiident)  on  the  other. 

650,  41  L.   ed.  SSS,  17   Sup.  Ct.  Rep.  214;  Sontbem  R.  Co.  v.  Greene,  216  U.  S.  400, 

United  SUtes  ex  rel.  Attj'.  Gen.  v,  Delaware  413,  64  L.  ed.   636,   540,  30  Sup.   Ct   Rep. 

A  H.  Co.  213  U.  S.  366,  63  h.  ed.  836,  £D  287,  17  Ann.  Caa.  1247;  Herndon  t.  Chicago, 

Sup.  Ct.  Rep.  SZT;  Newport  k.  C.  Bridge  Co.  R.  I.  A  P.  R.  Co.  218  U.  8.  136,  64  L.  ed. 

V.  United  States,  105  U.  S.  470,  26  L.  ed.  070,  30  Sup.  Ct.  Rep.  633. 

1143;  New  York  ft  N.  E.  R.  Co.  t.  Bristol,  The   statute   is    unconstitutional    at   all 

131  U.  S.  566,  38  L.  ed.  260,  14  Bnp.  Ct  events  as  to  this  appellee,  bacauae  appellee 

Rep.  437.  is  not  within  the  daas  of  fi»eign  eorpora- 

,,      „    „    „        „        .   ,,  tiouB  which  the  state  may  arbitrarily  ts- 

..?«"■  .\r,r  »."?s.rpi',n  «• "-  •'•  ^^"^  '<  *»"'"--• 

X'SX^'JZ  SrS,™  .,  .M.  ""l  B,».»  i.  »  „  to.„.U.U  ..iHraph 

court    It  would   mn   tb>l  nothtag  nor.  "^^^  „  j,,       ^  ,  ^u        j„  „. 

th.o  Ih.  .Ut^out  ol  '"l-  wu  '"1"™','"  S.  1.  S3,  37.  51  L.  rf.  355,  358,  37^  30  Sup. 

dcB,o..lr.t.  tb.  «n«»«,t«t,o..l,l7  «  »•  ^t.  E,p.  lio,  H^to  ..  si.  LouU  i  S. 

kpolution  in  q"«l.on.                       ,„  „  „  F.  E.  Co.  232  U.  S.  318,  332,  53  U  «i.  S21, 

Western  U.  Teleg.  Co.  v.  KauMLH.  216  U.  S.  ...    ,.  ^        ^    _        ,,, 


.  Kansas,  216  U.  S.  S6,  64 


Pensacola  Teleg.  Co.  v.  Western  U.  Teleg. 


r?.?  S;  ?  *,.?^',.        J2i    ■„      U        T.I.J.  Co.  V.  !«.*  105  U.  S.  460,  21  L.  «1. 
■ul.  4M.  .1(1  Sun.   Ct.  R<m.  BBO-   TtArnitnn     ^    _.  ■_  .         _  '  _ 


I.,  ed.  423,  30  Sup.  Ct.  Rep.  2S0;  Hemdmi 


1067;  Western  U.  Teleg.  Co.  v.  Att?.  Qen. 


T.  Chicago.  R.  I.  &  P.  R.  Ci.  218  U.  8.  136,    ""' '   "-™"  «.    ,7i    ;^    «n  So^ 
■J  T    ^  a-in    nn  o..»   nt   u—   nit     Ti.— <      ^^°   "■  °'  "^Oi  Bo».  31   L,  ed.  780,  796,  a 

s.\i..'Suu  i"s:  ?rcf2^=ui:  L'o' n"\"ro.'"5;^i!'S'T,ri,'srs: 


Head,  234  U.  S.   149,   164,  68  L.  ed.   126B, 


78,  68  L.  ed.  867.  858,  34  Sup.  Ct.  Rep.  664; 


i.  710,  66 


1265, 34  suj.  Ct  E.P "«;».-« P.  ^  a/eiuTurw  ^1  cjs;.  t  ?vs; 

Co.  V.  Larabee,  234  U.  S.  469,  472,  473,  68  , 

L.   ed.   1398,   1407,   34   Sup.   Ct   Ilep.  970; 

South  Carolina  ex  rel.  Ph<enix  Mut  L.  Ina. 

Co.  V.  McMaater,  237  U.  S.  6>-72,  60  L.  ed.  ,      , 

839-843,  36  Sup.  Ct.  Rep.  604.  "'■   J'wt'M   McReynolds   delivered   tha 
opinion  of  the  court: 

Mr.  Rush  Taggart  argued  the  cause,  and.  These  appeala  bring  up  for  oondderation 

with  Mr.   FranciB   Raymond  Stark,   filed  a  the  validity  of  a  Wisconsin  statute  provid- 

brief  for  the  Western  Union  Telegr^b  Com-  i„g  for  revocation  ot  licensee  granted  to  cor. 

P^'f:  porationl  not  organized  under  the  laws  of 

The  statute  is  uneonstitutional  generally:  that  state.     They  were  heard  together,  and 

(1|  Because  it  is  a  direct  attempt  to  to  dispose  ot  them  by  one  opinion  will  be 

limit  and  restrict  the  judicial  power  of  the  convenient. 

United  States.  Terms  and  conditions  upon  which  foreign 

(2)  Because  It  requires  a  stipulation  in  corporations  might  do  local  business,  and 
advance  not  to  exercise  a  Federal  right.  penalties  for  failure  to  comply  therewith, 

Hemdon  v.  Chicago,  R.  I.  4  P.  R.  Co.  218  were  first  prescribed  by  the  legialature  of 

U.  S.  135,  54  L.  ed.  670,  30  Sup.  Ct  Rep.  Wisconsin  in   1898.     Amendatory  and  sup- 

033 ;  Harrison  t.  St.  Louis  &  S.  F.  R.  Co.  232  plemental  aUtntes  were  enacted,  and  finally 

U.  S.  318,  68  I^  ed.  621,  L.R.A.1013F,  1187,  the  act  of  June  20,  1905,  added  four  new 

34  Sup.  Ct.  Rep.  333;  South  Carolina  ex  rel.  sectiona  to  the  statutes  of  189S,  one  of  which 

Phouix  Mut  L.  Ins.  Co.  v.  McMaater,  237  follows: 

U.  S.  63,  71,  69  L.  ed.  830.  843,  36  Sup.  Ct.  Sec.  1770f.    "Whenever  any  foreign  cor- 

Rep.   604;   Missouri  P.   R.   Co.  v.   Larabee,  poration  doing  buainess  in  this  atate  shall 

234  U.  S.  460,  58  L.  ed.  1398,  34  Sup.  Ct.  remove  or  make  application  to  remove  into 

Rep.  079;  Home  Ins.  Co.  v.  Morse,  20  Wall,  any  district  or  circuit  court  of  the  United 

446,  22  L,  ed.  365;  Barron  v.'Burnside,  121  States  any  action  or  proceeding  commenced 

U.  S.  ISO,  30  L.  ed.  915,  1  Intera.  Com.  Rep.  against  it  by  any  citizen  of  this  state,  upon 

205,  7  Sup.  Ct.  Rep.  031;  Southern  P.  Co.  v.  any  claim  or  cause  of  action  arising  within 

Denton,   146   U.   S.   202,  36   L.  ed.   042,   13  this  state,  it  ihaU  be  the  duty  ol  the  secre- 

8np.  Ct.  Rep.  44.  tary  of  state,  upon  such  fact  being  made  to 

(3)  Because    It    discriminates     between  appear  to  him,  to  revoke  the  license  of  such 
CO  K  ed.  loa* 


331-333 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebh, 


corporation    to    do    business    within    this 
Btate.V 

Since  1860  the  Western  Union  Telegraph 
Company,  a  [332]  New  York  corporation, 
has  been  continuously  carrying  on  within 
Wisconsin  both  intra  and  interstate  com- 
merce, and  for  use  therein  has  acquired  and 
owns  a  large  amount  of  property.  In  1907 
it  filed  with  the  secretary  of  state  a  copy 
of  its  charter,  paid  the  prescribed  fee,  and 
took  out  a  license  to  do  intrastate  business. 
The  Philadelphia  &  Reading  Coal  &  Iron 
Company,  a  Pennsylvania  corporation,  since 
prior  to  1898,  within  Wisconsin  has  been 
continuously  shipping  and  selling  coal  both 
in  intrastate  and  interstate  commerce,  and 
for  use  therein  has  purchased  at  great  ex- 
pense docks  and  other  properties.  Having 
paid  required  fees  and  filed  its  charter  with 
the  secretary  of  state,  it  received  a  license, 
November  10,  1898. 

The  Western  Union  Telegraph  Company 
removed  to  the  United  States  district  court 
a  civil  suit  begun  against  it  in  the  circuit 
court,  Dane  county,  Wisconsin,  during  1911; 
and  in  1912  an  action  against  the  Phila- 
delphia &  Reading  Coal  &  Iron  Company  was 
likewise  removed.  Averring  that  so  far  as 
the  same  directs  or  attempts  to  direct  an- 
nulment of  its  right  to  do  business,  § 
1770f,  above  quoted,  is  in  conflict  with  the 
Federal  Constitution,  each  of  the  appellees 
filed  an  original  bill  praying  an  injunction 
restraining  the  secretary  of  state  from  re- 
voking its  license  because  of  such  removal. 
The  lower  court  sustained  the  claim  of  un- 
constitutionality (216  Fed.  199),  granted 
preliminary  injunctions,  and  these  direct  ap- 
peals were  taken. 

Consideration  of  the  Wisconsin  statutes 
convinces  us  that  they  seek  to  prevent  ap- 
pellees and  other  foreign  commercial  cor- 
porations doing  local  business  from  exer- 
cising their  constitutional  right  to  remove 
suits  into  Federal  courts.  To  accomplish 
this  is  beyond  the  state's  power.  The  ac- 
tion of  the  court  below  in  holding  §  1770f 
inoperative,  and  enjoining  its  enforcement 
as  to  appellees,  was  correct  and  its  decree 
must  be  affirmed. 

[333]  We  are  asked  in  effect  to  reconsider 
the  question  discussed  and  definitely  deter- 
mined in  Harrison  v.  St.  Louis  &  S.  F.  R. 
Co.  232  U.  S.  318,  58  L.  ed.  621,  L.R.A.1915F, 
1187,  34  Sup.  Ct.  Rep.  333.     We  there  said 
(p.  328)  :   "The  judicial  power  of  the  United 
States  as  created  by  the  Constitution  and 
provided  for  by  Congress  pursuant  to  its 
constitutional  authority  is  a  power  wholly 
independent    of    state    action,    and    which 
therefore     the  several  states  may  not,  by 
any  exertion  of  authority  in  any  form,  di- 
rectly or  indirectly,  destroy,  abridge,  limit, 
or  render  inefficacious." 
Affirmed. 

toto 


SOUTHERN   RAILWAY   COMPANY,   PIff. 

in  Err., 

V. 

MAGGIE   GRAY,   Administratrix  of  Ken- 
neth  L.  Gray,  Deceased. 

(See  S.  O.  Reporter's  ed.  333-339.) 

Master  and  serTant  —  employers'  lia- 
bility —  Federal  common  law  con- 
trols. 

1.  Rights    and   obligations    under    the 

Federal   employers*   liability  acts  of  April 

22,  1908  (36  Stat,  at  L.  65,  chap.  149),  and 

April   6,   1910    (36   SUt.  at  L.  291,  chap. 

143,  Comp.  Stat.  1913,  §  8667),  depend  upon 

those  statutes*  and  applicable  principles  of 

the  common  law  as  interpreted  and  applied 

in  the  Federal  courts. 

[For  other  cases,  see  Master  and  Servant,  II. 
a,  in  Digest  Sup.  Ct.  1908.1 

Trial  —  taking:  case  from  Jnry  —  em- 
ployers* liability  —  last  clear  chance. 

2.  The  trial  court  should  have  granted 
a  motion  to  dismiss  as  of  nonsuit  an  action 
brought  under  the  Federal  employers'  lia- 
bility acts  of  April  22,  1908  (35  SUt.  at 
L.  66,  chap.  149),  and  April  5,  1910  (36 
Stet.  at  L.  291,  chap.  143,  Comp.  Stat.  1913, 
§  8657),  for  the  death  of  a  railway  brake- 
man  who,  havinff  gone  to  sleep  on  the  track 
some  f  of  a  mile  from  his  train  after  set- 
ting his  sicnal  lights  on  the  track  to  warn 
an  expected  passenger  train,  was  struck  and 
killed  by  the  passenger  engine,  where  the 
evidence  shows  that  the  engineer  sounded 
the  customarr  flagman's  signal  when  it  first 
became  possible  to  see  the  signal  lights, 
then  about  1,250  feet  distant,  and  almost 
immediately  thereafter,  seeing  the  body,  did 
everything  possible  to  check  the  train,  there 
being  uncontradicted  testimony  that  the 
train  could  not  have  been  stopped  in  less 
than  1,900  feet,  and  nothing  to  indicate 
that  after  the  engineer  saw  or  could  have 
seen  the  brakeman's  body,  the  train  could 
have  been  stopped  in  time  to  prevent  the 
accident. 

Sup.   ct.   1908.] 

[No.  356.] 

Argued    May   5,    1916.     Decided   May   22, 

1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State   of   North   Carolina  to  review   a 


Note. — On  the  constitutionality,  applica- 
tion, and  effect  of  the  Federal  employers' 
liability  act — see  notes  to  Lamphere  v.  Ore- 
gon R.  &  Nav.  Co.  47  L.RA.(KS.)  38;  and 
Seaboard  Air  Line  R.  Co.  v.  Horton,  L.RJL. 
1916C,  47: 

On  the  doctrine  of  last  clear  chance — see 
note  to  Bogan  v.  Carolina  C.  R.  C6.  56 
L.R.A.  418. 

On  the  applicability  of  the  doctrine  of 
last  clear  chance  where  the  danger  is  not 
actually  discovered — see  note  to  Bourrett  t. 
Chicago  A  N.  W.  R.  Co.  36  L.RJ1.(N.S.) 
957. 

141  V.  8. 


1915.  SOUTHERN  R.  CO.  v.  GRAY. 

judj;incnt  which  affirmed  a  judgment  of  the  v.  Walker,  121  C.  C.  A.  679,  203  Fed.  085; 

Superior  Court  of  Randolph  County,  in  that  Hart  v.  Northern  P.  R.  Co.  116  C.  C.  A.* 

state,  in  favor  of  plaintiff  in  an  action  of  12,  196  Fed.  180;  Atchison,  T.  &  S.  F.  R.  Co. 

death  brought  under  the  Federal  employers'  v.  Taylor,  116  C.  C.  A.  440,  196  Fed.  878; 

liability  act.     Reversed  and  remanded  for  Newport  News  &  M.  Valley  Co.  v.   Howe, 

further  proceedings.  3  C.  C.  A.  121,  6  U.  S.  App.  172,  52  Fed. 

See  same  case  below,  167  N.  C.  433,  83  362;  Bogan  v.  Carolina  C.  R.  Co.  55  L.R.A. 

g    Y    g^Q  424,  note;  New  York,  N.  H.  &  H.  R.  Co.  v. 

rru    *  \           ^  ^  A  '     4.U        •  ;  «  Kelly,  35  C.  C.  A.  571,  93  Fed.  745;  Little 

The  facts  are  stated  m  the  opmion.  _    /'     *.  t?i  ^  •    r>         t>ii-         oi  t  i>  a 

'^  Rock  R.  &  Electric  Co.  v.  Billmgs,  31  L.R.A. 

Mr.    L.    E.    Jeffries   argued   the   cause,  (N.S.)   1031,  98  C.  C.  A.  467,  173  Fed.  903, 

and,  with  Messrs.  H.  O'B.  Cooper  and  L.  L.  19  Ann.  Cas.  1173. 

Oliver,  filed  a  brief  for  plaintiff  in  error*  Where,  in  an   action   under  the   Federal 

In  determining  what  constitutes  negli-  uct,  the  claim  is  made  and  denied  that  thero 
gence  under  the  Federal  employers'  liability  was  no  evidence  tending  to  show  liability, 
act,  recourse  must  be  had  to  the  common  such  ruling,  when  duly  excepted  to,  is  re- 
law  as  interpreted  by  the  Federal  courts.  viewable,  because   inherently  involving  the 

Second  Employers'  Liability  Cases  (Mon-  operation  and  effect  of  the  Federal  law. 

dou  V.  New  York,  N.  H.  &  H.  R,  Co.)   223  Seaboard  Air  Line  R.  Co.  v.  Padgett,  236 

U.  S.  1,  56  L.  ed.  327,  3  L.R.A.(N.S.)   44,  U.  S.  6(J8.  59  L.  ed.  777,  35  Sup.  Ct.  Rep. 

32  Sup.  Ct.  Rep.  169,  1  N.  C.  C.  A.  875;  481;  St.  rx)uis,  I.  M.  &  S.  R.  Co.  v.  Tayior, 

Michigan  C.  R.  Co.  v.  Vreeland,  227  U.  S.  210  U.  S.  281,  52  L.  ed.  1061,  28  Sup!  Ct. 

59,  57  L.  ed.  417,  33  Sup.  Ct.  Rep.  192,  Ann.  Rep.  616,  21  Am.  Neg.  Rep.  464;  Seaboard 

Cas.  1914C,  176;  Western  U.  Teleg.  Co.  v.  Air  Line  R.  Co.  v.  Duvall,  225  U.  S.  477, 

Commercial  Mill.  Co.  218  U.  8.  416,  64  L.  56  L.  ed.  1171,  32  Sup.  Ct.  Rep.  790;   St. 

ed.  1091,  36  L.R.A.(N.S.)   220,  31  Sup.  Ct.  Louis,  I.  M.  &  S.  R.  Co.  v.  McWhirter,  229 

Rep.  59,  21  Ann.  Cas.  815;  Rice  v.  Minnesota  U.  S.  26.),  57  L.  ed.  1179,  38  Sup.  Ct.  Rep. 

A  N.  W.  R.  Co.  1  Black,  374,  17  L.  ed.  151;  858;  Central  Vermont  R.  Co.  v.  White,  238 

United  States  v.  Sanges,  144  U.  S.  311,  36  U.  S.  507,  59  L.  ed.  1433,  36  Sup  Ct.  Rep. 

I*,  ed.  446,  12  Sup.  Ct.  Rep.  009;   Charles  865,  Ann.  Cas.  1916B,  252,  9  N.  C.  C.  A.  205. 

River    Bridge   v.    Warren    Bridge,   11    Pet.  The  doctrine  of  comparative  negligence  is 

420,  9  L.  ed.  773;  Standard  Oil  Co.  v.  United  inapplicable. 

States,  221  U.  S.  1,  65  L.  ed.  619,  34  L.R.A.  Southern  R.  Co.  v.  Johnson,  111  Va.  499, 

(N.S.)  834,  31  Sup.  Ct.  Rep.  602,  Ann.  Cas.  69  S.  E.  323,  Ann.  Cas.  1912 A,  81;   Great 

1912D,  734;  United  States  v.  American  To-  Northern  R.  Co.  v.  Wiles,  240  U.  S.  444, 

bacco  Co.  221  U.  S.  106,  56  L.  ed.  663,  31  ante,  732,  36  Sup.  Ct.  Rep.  406. 

Sup.  Ct.  Rep.  632;  Seaboard  Air  Line  R.  Co. 

▼.  Padgett,  236  U.  S.  668,  59  L.  ed.  777,  36        t^      „„ w     ^  i  -.  *      ^a    ♦».« 

o      ^5.    »        ^oi     ax    T            T    Af    •.  a  Mr.    Thomas    H.    OalTert   argued    the 

Sup.  Ct.  Rep.  481;   St.  Louis,  I.  M.  &  S.  ,       .  j^  ^     j  ^  ^    Barrimrer 

R,  Co.  V.  Taylor,  210  U.  S.  281,  62  L.  ed.  ^^^^'  I  •  w    ^»  /  \i     *•     1    '^^""'S^^* 

lAdi   t%o  o      ^rii.  T>       aia  ai  A      TiT      ry  "icd  a  brief  for  defendant  m  error: 

1061, 28  Sup.  Ct.  Rep.  616,  21  Am.  Neg.  Rep.  .,                 x.      *               *  *v         .  4.  «    .u 

^«A.    Q.«K^-.H    Au  Ti«.  u    n^    V    iw.n  Upon  a  motion  to  nonsuit,  the  court  could 


McWhirter,  229  U.  S.  265,  67  L.  ed.  1179,  T". "T"*  """'*'  uv^^*  V  •  TV — ^TIT "  JT 

33  Sup.  Ct.  Rep.  858;  Central  Vermont  r!  ^^"^^^  ^  ^^^^^"'^  plamtiffs  right  to  re- 

Co.  ▼.  White,  238  U.  S.  507,  69  I*  ed.  1433,    ™™.  .  ^  -,      „    ™ .v    „„ 

UK    s,.«    r*    p««    SAK     Ann    P..    loiftP  Winbome  Guano  Co.  v.  Plymouth  Mer- 

oL   o^v  ^'  n    r  .,«,'  ^t.  ^\li^  '  cant"*  Co.  168  N.  C.  223.  84  S.  E.  272. 

262   9  N.  C.  C   A.  265 !  Seaboard  A.r  Line  ^.^^  ^.^          ^^^^ 

R,  Co.  V.  Horton,  233  U.  8.  492,  58  L.  ed.    .....  ,.  .   .„ ., ,     .     .,  ^  li«:«4.;ff 

1062,  L.R.A.1915C,  1,  34  Sup.  Ct  Rep.  636,  "  ^^%^«^*  °'''!^-  rH?    f^v^   i^tnH^: 

Ann.  Cas.  1915B,  476,  8  N.  C.  C.  A.  834.  ^  »^»^?J  wirnot  b^irrantS 

Under  the  law  as  applied  by  the  Federal  *>  hS  v^'wiLn,  166  N.  C.323,  81  8.  E. 

courts,  the  defendant  is  liable  if  it  could  ^^^^^^  ^    ^^^^^  dumber  Co.  165 

have  avoided  the  mjury  by  the  exercise  of  '             qi  q    i?   ako 

ordinary   care,   only   after  discovering   the  ^\r' ^zu\              ,•               •«       ^   -i  *    * 

perilous  situation.  Contributory  negligence  wiU  not  defeat 

Inland  ft  Seaboard  Coasting  Co.  v.  Tolson,  recovery  if  it  be  shown  that  the  defendant 

139  U.  S.  661,  36  L.  ed.  270,  11  Sup.  Ct.  °»»g^*»  ^7  ^^^  exercwe  of  reasonable  care 

Rep.  653;  Grand  Trunk  R.  Co.  v.  Ives,  144  and  prudence,  have  avoided  the  consequences 

U.  S.  408,  36  L.  ed.  485,  12  Sup.  Ct.  Rep.  of  the  plaintiff's  negligence. 

679,  12  Am.  Neg.  Cas.  659;   Baltimore  A  Inland  A  Seaboard  Coasting  Co.  v.  Tol- 

O.  R.  Co.  V.  Hellenthal,  31  C.  C.  A.  414,  60  son,  139  U.  8.  661,  36  L.  ed.  270,  11  Sup. 

U.  S.  App.  156,  88  Fed.  116;  Iowa  C.  R.  Co.  Ct  Rep.  663;  Grand  Trunk  R.  Co.  v.  Ives. 

•0  Ia.  ed.  lOSl 


334,  335 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


,144  U.  S.  408,  36  L.  ed.  485,  12  Sup.  Ct 
Rep.  679,  12  Am.  Neg.  Gas.  659;  Sullivan 
▼.  New  York,  N.  H.  ft  H.  R.  Co.  154  Mass. 
524,  28  N.  K  911,  12  Am.  Neg.  Cas.  70. 

It  is  the  duty  of  the  engineer  and  fireman 
to  keep  a  proper  lookout  on  the  track. 

Arrowood  y.  Southern  Carolina  &  G.  Ex- 
tension R.  Co.  126  N.  C.  629,  36  S.  E.  151; 
Smith  T.  Norfolk  &  S.  R.  Co.  114  N.  C.  729, 
25  L.R.A.  287,  19  S.  K  863,  923. 

And  it  is  for  the  jury  to  say  whether, 
under  all  the  circumstances,  the  defendant's 
employees  were  negligent  in  failing  to  keep 
a  proper  lookout  for  the  warning  lights 
on  the  track,  which  would  have  put  them  on 
notice  of  some  danger,  with  respect  to  which, 
whatever  it  might  be,  they  must  bring  tiie 
train  under  immediate  control. 

Dallago  V.  Atlantic  Coast  Line  R.  Co. 
165  N.  C.  269,  81  S.  E.  318. 

It  was  for  the  jury  to  determine,  under 
the  circumstances,  the  distance  in  which 
the  warning  lights  or  body  of  the  deceased 
could  have  been  seen,  as  well  as  the  distance 
within  which  the  train  oould  have  been 
stopped. 

Draper  v.  Atlantic  Coast  Line  R.  Co.  161 
N.  C.  307,  77  8.  E.  231 ;  Davis  v.  Seaboard 
Air  Line  R.  Co.  136  N.  C.  117,  48  S.  E. 
591,  1  Ann.  Cas.  214;  Wright  v.  Southern 
R.  Co.  127  N.  C.  225,  37  S.  £.  221;  Hender- 
son V.  Atlantic  Coast  Line  R.  Co.  159  N.  C. 
581,  75  S.  £.  1092;  Holman  ▼.  Norfolk  k 
W.  R.  Co.  159  N.  C.  44,  74  S.  E.  577;  Edge 
V.  Atlantic  Coast  line  R.  Co.  153  N.  C.  212, 
69  S.  E.  74;  Powell  v.  Southern  R.  Co.  125 
N.  C.  374,  34  S.  E.  530;  Pickett' v.  Wilming- 
ton &  W.  R.  Co.  117  N.  C.  628,  30  JmRJl 
257,  53  Am.  St.  Rep.  611,  23  S.  E.  264. 

In  those  jurisdictions  in  which  the  doc- 
trine of  discovered  peril  is  applied,  a  quali- 
fication is  recognized,  as  where  the  defend- 
ant, by  the  exercise  of  reasonable  care, 
might  have  foreseen  that  some  injury  would 
result  from  his  act  or  omission,  or  that  con- 
sequences of  a  generally  injurious  nature 
might  have  been  expected.  To  render  the 
defendant  liable  it  is  not  necessary  that  he 
could  have  contemplated,  or  even  been  able 
to  anticipate,  the  particular  consequences 
which  oisued. 

Title,  Negligence,  29  Cyc  495;  Title, 
N^ligence,  21  Am.  &  Eng.  Enc  Law,  2d  ed. 
487;  Robinson  v.  Melville  Mfg.  Co.  165  N. 
C.  495,  52  L.R.A.(N.S.)  385,  81  S.  E.  681; 
Ward  V.  North  Carolina  R.  Co.  161  N.  C. 
179,  76  8.  K  717;  Hudson  ▼.  Atlantic  Coast 
Line  R.  Co.  142  N.  C.  198,  65  8.  K  103; 
Drum  ▼.  Miller,  135  N.  C.  204,  65  L.RA. 
899,  102  Am.  St.  Rep.  528,  47  S.  E.  421, 
16  Am.  Neg.  Rep.  215;  Shearm.  &  Redf. 
Neg.  5th  ed.  §  99;  1  Thomp.  Neg.  i§  219  et 
seq.;  29  Cyc.  531;  Klockenbrink  ▼.  St 
Louis  &  M.  River  R.  Co.  81  Mo.  App.  866. 
10S9 


Mr.  Justice  HcReynolds  delivered  the 
opinion  of  the  court: 

Kenneth  L.  Gray,  an  experienced  brake- 
man,  was  of  the  crew  in  charge  of  plaintiff 
in  error's  north-bound  interstate  freight 
train  which  started  from  Spencer  at  9:45 
p.  u,  August  29,  1912.  Seeking  damages 
for  his  death,  the  administratrix  brought 
this  suit  under  the  Federal  employers'  lia- 
bility act  (chap.  149,  35  Stat,  at  L.  65, 
Cotnp.  Stat.  1913,  f  8657,  chap  143,  36 
Stat,  at  L.  291 )  in  the  superior  court,  Ran- 
dolph County,  North  •  Carolina.  Among 
other  things  here  amended  complaint  al- 
leges: 

"5.  That  on  the  30th  day  of  August,  1012, 
the  intestate  of  the  plaintiff  was  on  a 
freight  train  running  from  Spencer  in  the 
state  of  North  Carolina  to  Washington, 
District  of  Columbia,  through  the  state  of 
Virginia,  and  when  the  freight  train  upon 
which  the  intestate  of  the  plaintiff  was 
operating  in  going  north  arrived  at  Dry 
Fork,  in  the  state  of  Virginia,  the  intestate 
of  the  plaintiff  was  sent  forward  about  three 
quarters  of  a  mile  to  signal  a.  passenger 
train  of  defendant  coming  south;  that  the 
intestate  of  the  plaintiff,  when  he  had  got- 
ten about  three  quarters  of  a  mile  from 
Dry  Fork,  for  some  reason — loss  of  sleep 
or  for  some  other  [335]  cause  unknown  to 
the  plaintiff — ^laid  down  by  the  side  of  the 
tra^  of  the  defendant  with  his  head  on 
the  end  of  the  cross-ties  and  went  to  sleep; 
that  shortly  thereafter  passenger  train  No. 
37,  coming  south  as  aforesaid,  carelessly 
and    negligently    ran    over    the    intestate. 


"7.  That  the  death  of  the  intestate  of 
the  plaintiff  was  caused  without  fault  on 
his  part  and  by  the  wrongful  and  n^igent 
act  of  the  defendant,  in  that  both  the  en- 
gineer and  the  fireman  upon  the  passenger 
train  which  killed  the  intestate  of  the  plain- 
tiff could  have  easily  seen  the  intestate  of 
the  plaintiff  lying  in  a  helpless  condition 
as  aforesaid  upon  the  track  of  the  defend- 
ant, the  track  of  the  defendant  being 
straight  a  sufficient  distance  upon  which  the 
said  passenger  train  was  running  toward 
the  intestate  of  the  plaintiff  to  have  stopped 
the  train  or  slackened  its  speed  sufficiently 
to  have  prevented  the  killing  of  the  in- 
testate of  the  plaintiff,  ran  their  train  onto 
the  intestate  of  the  plaintiff  without  ring- 
ing the  bell,  without  blowing  its  whistle, 
without  slackening  its  q>eed,  or  without 
stopping  the  said  train;  in  that  the  serv- 
ants of  the  defendant  did  not  keep  proper 
lookout  on  the  track  in  front  of  the  en- 
gine, and  have  the  engine  and  train  of  the 
defendant  in  proper  control  so  that  they 
could  stop  the  engine  of  the  defendant  in 

S41  U.  8. 


lUi5.                                          SOUTHERN  R.  CX).  t.  GRAY.  835-888 

time  to  have  prevented  the  wrongful  killing  reached  point  in  the  cut  where  it  first  be- 
ef the  intestate  of  the  plaintiff;  in  that  the  came  possible  to  see  the  lights,  he  blew  a 
servants  of  the  defendant  did  not  see  the  flagman's  signal;  almost  immediately  there- 
intestate  of  the  plaintiff,  which  it  was  their  after,  seeing  the  body,  he  put  on  brakes, 
duty  to  do  and  which  they  could  have  done  turned  off  steam,  and  did  everything  possi- 
by  ordinary  care,  until  the  train  was  so  ble  to  check  the  train;  before  this  could  be 
near  the  prostrate  form  of  the  intestate  of  done,  a  low  step  struck  the  brakeman's  head, 
the  plaintiff  that  the  servants  of  the  de-  Just  before  No.  37  blew  for  that  station  (it 
fendant  could  not  stop  the  train  in  time  to  was  not  scheduled  to  stop  there)  the  freight 
save  the  Kfe  of  the  intestate  of  the  plain-  engine,  standing  at  Dry  Fork,  signaled  for 
tiff;  in  that  the  servants  of  the  defendant  Gray's  return. 

wrongfully  killed  the  intestate  of  the  plain-  Three  engineers  testified  that,  in  the  cir- 

tiff  upon  the  said  occasion  when  they  had  cumstances,  the  pasenger   train   could  not 

the  last  clear  chance  to  save  his  life,  which  have  been  stopped  in  less  than  1,900  feet, 

they  failed  to  do  by  the  exercise  of  ordinary  and  no  other  evidence  was  offered  on  this 

care."  point.     There   is   nothing   indicating   that 

[336]  The  accident  occurred  at -6x14  A.  after  the  engineer  saw  or  could  have  seen 

If., — twenty  minutes  before  sunrise, — when  the  brakeman's  body  the  train  could  have 

it  was  somewhat  foggy  and  ordinary  objects  been  stopped  before  reaching  it. 

on   the  ground  could  not  readily  be  seen  In   an  effort  to  discredit  the  passenger 

without  artificial  light.     Approaching  Dry  engineer,    only    witness    to    some    circum- 

Fork  station  the  freight  train  stalled,  and  stances,  he  was  asked  on  cross-examination 

having  been  divided  into  two  sections,  these  concerning  prior  contradictory  statements; 

were  hauled  onto  sidings  there.    After  pla-  but  the  exclusion  of  all  or  any  part  of  his 

cing   section    1,   and   as    returned    by   the  evidence  would  not  change  the  result.     Of 

main  track  to  bring  up  section  2,  the  freight  course,    the    contradictory   statements    can 

engineer  directed  Gray  to  flag  south-bound  have  no  legal  tendency  to  establish  the  truth 

passenger  train  No.  37.    It  was  the  latter's  of  their  subject-matter.    Donaldson  v.  New 

duty,  with  a  red  and  white  lantern  in  hand,  York,  N.  H.  k  H.  R.  Co.  188  Mass.  484,  486, 

to  go  forward  eighteen  telegraph  poles  (half  74  N.  E.  916;  McDonald  v.  New  York  C. 

a  mile)    and  lay  a  torpedo  on  the  track;  ft  H.  R.  R.  Co.  186  Mass.  474,  72  N.  £.  55; 

then  to  go  nine  poles  further  and  place  two  Com.  v.  Starkweather,  10  Cush.  59;  Sloan  v. 

torpedoes;  then  to  return,  stand  near  pole  New  York  C.  R.  Co.  45  N.  Y.  125;  Pufdy 

eighteen  and  await  the  expected  train.    No  v.  People,  140  111.  46,  29  N.  E.  700. 

torpedo  was  put  in  place;  but  having  ad-  Following  local  practice,  at  close  of  all 

vanced  some  three  quarters  of  a  mile  he  the  evidence  a  motion  was  made  to  dismiss 

set  the  lanterns  on  the  track,  lay  down  with  as   of  nonsuit,   because  negligence   by  the 

his  head  on  a  cross-tie,  and  went  to  sleep,  railroad  had  not  been  shown.     The  court 

There  is  nothing  to  explain  this  action.  denied  this  and  submitted  two  issues  to  the 

From  Banister  Hill,  2i  miles  southward,  jury, — "whether  the  intestate  of  the  plain- 

and  almost  to  Dry  Fork,  the  track,  follow-  tiff  was  killed  by  the  negligence  of  the  de- 

ing   several   curves,    descends   on   a   heavy  fendant,  as  alleged  in  the  complaint,"  and 

grade.    Commencing  say  f  of  a  mile  down  "what  damage,  if  any,  is  the  plaintiff  en- 

this  grade  it  runs  in  a  straight  line  i  mile;  titled  to  recover."    In  connection  with  thess 

then   around  a  sharp  curve  to  the  right,  a  lengthy  and  rather  involved  charge  wm 

passing  through  a  deep  cut,  to  a  point  some  given,  the  objections  to  which  it  is  not  now 

600    feet   from   where   the   brakeman   lay;  necessary   for   us   to   consider.     Judgment 

then  again  in  a  straight  line  some  400  feet;  ^p^n  ^  [338]  verdict  for  the  administratrix 

and  thence  around  a  moderate  curve  to  the  ^^^  affirmed  by  the  supreme  court    167  N. 

left  perhaps  a  half  mile.  q  433^  33  g   £   349 

On  the  west  side  of  this  last  curve,  ap-  piaintiff  in  error  maintains  that  the  trial 

proximately  217  feet  from  its  north  end  ^^^^  ^^^^  ,^  overruling  its  motion  to  dis- 

IS  the  spot  where  Gray  slept.    Commg jouth  ^^  ^^^  ^^^^           objections  to  tht 

along  the  track  m  broad  daylight  one  can  ,     '         .          y    m       j  m    i    a.    - 

flr.t%ee  it  when  he  reaches  i  ^int  on  the  '^'8«-  „<r*"?'*i.'"    *"'*«'«»»°*    "    ^/^ 

right-hand  curve  in  the  deep  cut  1^64  feet  «i""  »"  ^*™^»^'"  *f  •  «°"'«t'  "«»  "»; 

'^  sist  that  the  verdict  is  adequately  supported 

Passenger  train  No.  37,  properly  equipped,  '>y  •vidence.     Concerning  the   latter   they 

790  feet  long,  composed  of  ten  cars, — six  *^* 

steel  sleepers  and  four  other  cars,—*  tender  "On  the  testimony  and  the  law  applica- 

and  engine,  came  down  the  long  grade  run-  ble  to  the  ease  the  jury  ooold  have  arrived 

ning  55  miles  an  hour.    The  engineer  says  at  the  following  conclusions: 

[337]    that,    approaching    the    right-hand  "1.  That  there  was  an  unobstructed  view 

curve,  he  blew  »  station  signal;  when  he  of  more  than  1,200  feet  from  the  danger 

•0  Ii«  ed.  loss 


338-340 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Term, 


signals  and  the  place  the  intestate  was 
struck. 

**2.  That  the  red  and  white  lights  were 
on  the  track.    This  was  undisputed. 

''3.  That  it  was  the  duty  of  the  engineer 
to  keep  A  lookout  for  danger  signals. 
.     .    • 

**4.  That  the  fact  the  train  approached 
about  1,300  feet  distant  around  a  curve  did 
not  excuse  the  engineer  from  keeping  a  look- 
out down  the  track. 

"5.  That  the  lights  on  the  track  could  in 
fact  be  more  easily  seen  when  they  were 
in  the  darkness  and  out  of  the  direct  rays 
of  the  headlight  as  the  train  was  entering 
the  straight  track  from  the  curve. 

**6.  That  in  the  exercise  of  ordinary  care 
the  engineer  could  have  seen  the  lights  at 
a    point    more    than    1,200    feet    distant. 

• 

"7,  That  the  engineer  should  have  blown 
his  signal  as  soon  as  he  saw  the  danger 
signals,  or  by  the  exercise  of  ordinary  care 
could  have  seen  them,  which  was  when  he 
was  more  than  1,200  feet  distant. 

*'8.  That  instead  of  bringing  his  train  un- 
der control  and  trying  to  stop  it  as  soon 
as  he  saw,  or,  by  the  exercise  of  ordinary 
care,  could  have  seen,  the  lights,  the  en* 
gineer  waited  until  he  saw  the  intestate 
lying  beside  the  track." 

As  the  action  is  under  the  Federal  em* 
ployers'  liability  [339]  act,  rights  and  ob- 
ligations depend  upon  it,  and  applicable 
principles  of  common  law  as  interpreted 
and  applied  in  Federal  courts.  Seaboard 
Air  Line  R.  Co.  v.  Horton,  233  U.  S.  492, 
58  L.  ed.  1062,  L.R.A.1015C,  1,  34  Sup. 
Ct.  Rep.  635,  Ann.  Cas.  1915B,  475,  8 
y.  C.  C.  A.  834;  Central  Vermont  R.  Co. 
V,  White,  238  U.  S.  507,  50  L.  ed.  1433, 
35  Sup.  Ct.  Rep.  865,  9  N.  C.  C.  A. 
265;  Great  Northern  R.  Co.  v.  Wiles, 
240  U.  S.  444,  ante,  732,  36  Sup.  Ct.  Rep. 
406. 

Negligence  by  the  railway  company  is 
essential  to  a  recovery;  and  there  is  not  a 
scintilla  of  evidence  to  show  this  under 
the  most  favorable  view  of  the  testimony 
urged  by  counsel  for  defendant  in  error. 
When  it  first  became  possible  for  the  en- 
gineer to  see  signal  lights  1,264  feet  away 
he  had  a  right  to  suppose  the  brakeman 
was  standing  there  on  guard.  Immediately, 
he  says,  the  customary  signal  was  sounded. 
No  duty  to  the  brakeman  demanded  an  in- 
stant effort  to  stop  the  train, — ^the  indicated 
danger  was  more  than  half  a  mile  away. 
Moreover,  application  of  emergency  ap- 
paratus on  that  moment,  it  appears,  would 
not  have  caused  a  stop  in  time  to  prevent 
the  accident.  There  is  no  evidence  that  the 
engineer  could  have  seen  the  brakeman  a 
10S4 


single  moment  before  he  did,  or  omitted 
thereafter  to  do  all  within  his  power. 

We  think  the  motion  to  ^iaTnimi  ahould 
have  been  granted.  The  judgment  below  ia 
accordingly  reversed  and  the  cause  remand- 
ed to  the  Supreme  Court  of  North  Carolina 
for  further  proceedings  nqt  incoaaistant 
with  this  opinion. 

Reversed. 


[340]  LE  ROY  BRAZEE,  Plff.  in  Err., 

V. 

PEOPLE  OF  THE  STATE  OF  MICHIGAN 
(See  S.  C.  Report^'s  ed.  340-344.) 

Constltatlonnl  law  —  police   power  - 
regulating  employment  agency. 

1.  The  state,  in  the  exercise  of  its  po- 
lice power,  could,  consistently  with  the  Fed- 
eral Constitution,  enact  so  much  of  Mich. 
Pub.  Acts  1913,  act  No.  301,  as  provides  for 
the  licensing  of  private  employment  agen- 
cies, and  prescribes  reasonable  regulations 
in  respect  to  them,  to  be  enforced  accord- 
ing to  the  legal  discretion  of  a  commis- 
sioner, including  a  provision  making  it  a 
misdemeanor  to  send  one  seeking  employ- 
ment to  an  employer  who  has  not  applied 
for  help. 

[For  other  cases,  see  Constitutional  Law,  IV. 
c:   IV.  a,  G;  IV.  b^  7,  in  Digest   Sup.  Ct 

Statnten  —  invalid  in  part. 

2.  The  possible  invalidity  of  so  much 
of  Mich.  Pub.  Acts  1913,  act  No.  301, 
licensing  and  regulating  private  employ- 
ment agencies,  as  prescribes  the  fees  whidi 
may  be  demanded  or  retained,  does  not  af- 
fect the  validity  of  other  provisions  of  the 
act  from  which  tl^e  provision  in  respect  to 
fees  is  separable. 

[For  other  cases,  see  Statutes,  I.  d,  4,  in  Digeat 
Sup.  Ct.  1908.1 

[No.  402.] 

Argued  April   6,   1916.     Decided  May  22, 

1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Michigan  to  review  a  judgment 
which  affirmed  a  conviction,  in  the  Record- 
er's Court  of  the  City  of  Detroit,  in  that 
state,  upon  a  charge  of  violating  a  state 
statute  regulating  emplo3rment  agencies  by 
sending  one  seeking  employment  to  an  em- 

NoTB.-~On  police  power  to  license  em- 
ployment agencies — see  notes  to  People  ex 
rel.  Armstrong  v.  Warden,  2  L.RJ^.(N.S.) 
859;  and  Spokane  v.  Macho,  21  L.R.A. 
(N.8.)  263. 

On  statutes  part  valid  and  part  invalid — 
see  notes  to  Titusville  Iron  Works  v.  Key- 
stone Oil  Co.  1  LJLA.  363;  and  Fayette 
County  ▼.  People's  ft  D.  Bank,  10  LJUL 
196. 

241  V.  8. 


ID15.                                                BRAZEE  y.  MICHIGAN.                                          341,  342 

plover  who  had  not  applied  for  help.    Af-  Williams  v.  Fears,  179  U.  8.  270,  45  L. 

firmed.  ed.   186,   21   Sup.   Ct.   Rep.   128;    Engel   v. 

See    same    case    below,    183    Mich.    259,  O'Malley,  219  U.  S.  128,  66  L.  ed.  128,  31 

LuRA.— ,  — -,  149  N.  W.  1053.  Sup.  Ct.  Rep.   190;   Bacon  v.  Walker,  204 

The  facts  are  stated  in  the  opinion.  U.  S.  311,  51  L.  ed.  499,  27  Sup.  Ct.  Rep. 

M      ^       .        «-      **   ^                       ,   .,  ^  289;  Chicago,  B.&  Q.  R.  Co.  V.  McGuire,  219 

Mr.   Proctor  Knott  Owens  argued  the  _.    *     _..  ®  *  t      7  ooo    n-,  o        r^x    d 

A  at  jt  ^   u  '  e  *        I   •  4:<r  :»  ...  U.  S.  549,  55  L».  ed.  328,  31  Sup.  Ct.  Rep. 

cause  and  filed  a  brief  for  plamtiff  in  er-  .-^    ^      '  .           ^,.           ,--  tt  o    too   1* 

*^  259 ;  Gundling  v.  Chicago,  177  U.  S.  188,  44 

'^!r*,        ♦  4  X      .              ..        .     _  x,.^  x^  L.  ed.  728,  20  Sup.  Ct.  Rep.  633;  Kidd,  D. 
The   statute   in   question   is  contrary  to.-,-,       ',        f         ^*^     ooittto 

Au    1^*1    A        J       \    t  4.U    r^     -♦•*«*:/«  «#  «  JP-  Co.  v.  Musselman  Grocer  Co.  217  U.  S. 

the  14th  Amendment  of  the  Constitution  of  .__     _^  _       ,    ___    ..  ^        ^.     _        ^^^ 

Au     T'   M  J  oi.  A            u  •           J     •  1     *  ^.,«  461,  54  L.  ed.  839,  30  Sup.  Ct.  Rep.  606; 

the  Lniled  States,  as  being  a  denial  of  due  t.       ,,        t.          i       •      -.Am  ,t    a    o^o    oa 

process  of  law  and  the  eoual  protection  of  ^"""^^^^  ^-  Pennsylvania,  127  U.  S.  678,  32 

thr^ts                                        protection  oi  j^    ^    ^^^^    ^    ^^p     ^^    ^^p    ^^^2^    ^^.^ . 

Ex7arte  Dickey,  144  Cal.  234,  66  L.R.A.  ^^^^^^/^'^T.'V^  ^If '^o^ti  ^L^^n^ 

928,  103  Am.  St    Rep.  82,  77   Pac.  924,  1  ??«'  24^'°-  ^t-  ^^P'/^^nf  M    H    «-n   ?^ 

Ann.  Cas.  428;  Yick  Wo  v.  Hopkins,  118  U.  ?'^^  n^^ t- "";      ^'f  ^i       ^7^^^^^^^^ 

S.  356,  30  L.  ed.  220,  6  Sup.  Ct.  Rep.  1064;  Y^'^'  ^  v  ^          /^t*    p  '  9^n  r   Q 

Re  Grice.  79  Fed.  627;  Butchers'  Union  S.  ^^J  ^ast  v.  Van  Deman  L  L.  Co.  240  L.  S. 

H 

Sup 

V.   Berrien   Circuit   Judge    (People   ex   rel.  -7  "'  -"•,»"-,  •-«,  "".o'tr  "*'*.Vo*">.-"xt 

Valentine  v.   Coolidge)    124  Mich.  604,  50  ^oore  v.  Mmneapohs,  43  Minn.  418,  4o  N 

L.R.A.  493,  83  Am.  St.  Rep.  352.  83  N.  W.  W.  719;  Mc^re  v.  St.  Paul,  48  Minn    331, 

694;    SUite   v.    Moore,    113    N.    C.   697,   22  ^J  ^'J^'  ^-}^>  P"<^J  ^-  ^«>P»^'  ^?J"«,^l^' 

L.R:A.  472,  18  S.  E.  342;  Moore  t.  St.  Paul,  ^^  ^-^.^f^,'  ^^         P^    i^'^Pnf  ni   \«^' 

48  Minn.  332,  51  N.  W.  219;   Chaddock  v.  ^'  ^^t'\     7^ZW.    V^'       U    Jx 

j\        Tti  xMi  u    MT    A  J  T>  A    QAo    in    A^  ^^  L.R.A.  73,  95  Alu.  St.  Rep.  241,  67  N. 

Day,  75  Mich.  527,  4  L.R.A.  809.   13  Am.  '         Diokev    144  Cal    234    60 

St.  Rep.  468,  42  N.  W.  977;  SUte  v.  Loom-  fJl^  ^J"^  Pf™  P'""^^/.*  1?*  ^^t'  f  *!  ^" 

is,  115  Mo.  307.  21  L.R.A:  789.  22  S.  W.  l^^'^J^l^,  l?^  ^J^,  ^*-  ^?'  ^^'  }  f ""* 

Cas.  428,  77  Pac.  924;  People  ex  rel.  Arm- 


75;   Atty,  Gon.  ex  rel.  Dingeman  v.  Lacy, 

180  Mich.  321),  146  N.  W.  871;  Spokane  v.  '^^'   .     ,       „        ,   .          j  *i.       *  *       i 

Macho,  51  Wash.  322,  21  L.R.A. (N.8.)  263,  ,  ^\  '^  '^f  the  state,  and  the  state  alone, 

130  Am.  St.  Rep.  1100,  98  Pac.  755;  Robi-  ^  determine  what  special  legislation   may 

Af         ao  Tiif-  u    can    «T  V    TXT    oi .  oe  required  to  fit  the  locality,  so  long  ns 

son  V.  Miner,  68  Mich.  560,  37  N.  W.  21;  .,./.,   ..       .         .       ...    •''          ,    "... 

state  ex  rel.  Luria  v.  Wagoner,  69  Minn,  ^l^f  lepslat.on  w  not  arbitrary  and  wtl.- 

206,  38  I.R.A.  677.  65  Am.  St.  Rep.  666,  72  •'«J,"'y  '«*??.»*"«.'»"*•,  „.«,„,      . 

N.  W.  67,  Stete  V.  Mitchell.  97  Me.  66.  94  ^.F^f*  "■  ^ij""""'  }^^  ^  S.  68,  30  L.  ed. 

A        cn,   ri  ^    AQ1    Ko   4  4^1    OQT     i]lt;ii;.,«.  «  5/8,  7  Sup.  ct.  Rep.  350;  New  York  ex  rcl. 

Am.  St.  Rep.  481,  53  Atl.  887;  Williams  v.  *           *^              Vk    n    «    -inA  tt    a    c-.t 

»%  A     •!.     e%    TiM-  \!     KOQ      Tv.,.:«^    -     n^v^i,  Lieberman  v.  Van  De  Carr,  199  U.  S.  5i>2, 

Detroit,    2  .^^^^^^    S^f;_^^,»"\;_^^  50  L.  ed.  305.  26  Sup.  a.  iep.  144;  Quong 

^"""^llo    i         ^v'li       w?"  rl^'^l  Wing  V.  Kirkendall,  223  U.  S   59,  56  L.  ed 

Pa.  422;   Sprmg  Valley  Water  Co.  ▼.  San  »                          »                        » 

Francisco,  165  Fed.  667;  People  use  of  SUte  Z  *^  ^^  °^'   ^\Jz^^'  .       'Q,%r^      m  ' 

»j      <  TT    wv        W1          o!ia  Til     10R    OK  state  V.  O'Hara,  36  La.  Ann.  93;  Texas  Bkg. 

Bd.  of  Health  v.  Wilson,  249  111.  195,  35  '    .            -,       ^'    ^   <,         » 

T  x>  A  /vrfi  \   ^MA   qa  jn    v    iai  .  iLr.fYi.>«»o  «  1°*-  ^<>-  ^-  State,  42  Tex.  636;   State  v. 

L.R  A.(N^  )  1074.  94  N.  E.  141;  MaUiews  3               ^^                             p^^^^. 

1      «?  i      1/1    J  V  I   ^«    kJLii!  to'.  V.  Circuit  Judge.  50  N.  J.  L.  686.  1 

Am.  St.  Rep.  241.  67  N.  E.  28;  KellyTiUe  ,  „'  •    -«   ..   .^,  ISJ 

Coal  Co.  V.  Harrier,  207  IlL  624.  99  Aa.  St.  ^"-*-  ^°'  ^^  ^".  ^7*. 

Rep.  240  69  N  E.  927;  Coppage  y.  Kan«^  MoBeynolds  delivered  the 

236  U.   S.  1,  59  L.  ed.  441,  L.R.A.1915C,  .   .         .  .,  ^  ^,,.4. 

960,  35  Sup.  Ct.  Rep.  240;  Adair  t.  United  ^PJ?'^"  ^'  the  court; 

o,x  1      «io  TT  o  -lo;    fro  T      J    ^oA  OQ  o  Brazee,   having   taken    out   a   license   to 

f^^'  ^o-,^\f  a"'  r      7^;        '           ^'  -^nduot  •"  employment  agency  in  Detroit 

Ct  Rep.  277.  18  Ann.  Cm.  764.  ^^^^  ^^^  3,,^''  j^y.^   j*,  ^,  Michigan, 

Mr.  Grant  Fellows,  At^rney  General  of  1913,  was  thereafter  convicted  upon  a  charge 

Michigan,  argued  the  cause,  and,  with  Mr.  of  violating  its  provisions  by  sending  one 

David  H.  Crowley,  filed  a  brief  for  defend-  seeking  employment  to  an  employer  who  had 

ant  in  error:  not    applied    for    help.      He    claimed    the 

This  law  is  a  proper  exercise  of  the  police  statute  was  invalid  upon  its  face  because  in 

power  of  the  state.  [342]  conflict  with  both  state  and  Federal 

•0  li.  ed.  10»* 


342-344 


SUPREME  OOUBT  OF  THE  UNITED  STATES. 


Oor.  TteK, 


Ck>nBtitutioiia,  and  lost  in  both  trial  and  fu- 
preme  courts.  183  Mich.  259,  LJIA. — ,  — , 
149  N.  W.  1053.  Now  he  insifU  it  offends 
that  portion  of  the  14th  Amendment  which 
declare!:  "No  itate  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges 
or  immunities  of  citizens  of  the  United 
States;  nor  shall  any  state  deprive  any  per- 
son of  life,  liberty,  or  property  without  due 
process  of  law;  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection 
of  the  laws." 

The  general  purpose  of  the  iM^t  is  well 
expressed  in  its  title — "An  Act  to  Provide 
for  the  Licensing,  Bonding,  and  Regulation 
of  Private  Employment  Agencies,  the  Limit- 
ing of  the  Amount  of  the  Fee  Charged  by 
Such  Agencies,  the  Refunding  of  Such  Fees 
in  Certain  Cases,  the  Imposing  of  Obliga- 
tions on  Persons,  Firms,  or  Corporations 
Which  Have  Induced  Workmen  to  Travel 
in  the  Hope  of  Securing  Employment,  Char- 
ging the  Commissioner  of  Labor  with  the 
Enforcement  of  This  Act,  and  Empowering 
Him  to  Make  Rules  and  Regulations,  and 
Fixing  Penalties  for  the  Violation  Hereof." 
It  provides:  Sec.  1.  'No  private  employ- 
ment agency  shall  operate  without  a  license 
from  the  commissioner  of  labor,  the  fee  for 
which  is  fixed  at  $25  per  annum  except  in 
cities  over  two  hundred  thousand  popula- 
tion, where  it  is  $100;  this  license  may  be 
revoked  for  cause;  the  commissioner  is 
charged  with  enforcement  of  the  act,  and 
given  power  to  make  necessary  rules  and 
regulations.  Sec.  2.  A  surety  bond  in  the 
penal  sum  of  $1,000  shall  be  furnished  by 
each  applicant.  Sec.  3.  Every  agency  shall 
keep  a  register  of  its  patrons  and  transac- 
tions. Sec.  4.  Receipts  containing  full  in- 
formation regarding  the  transactions  shall 
be  issued  to  all  persons  seeking  employment 
who  have  paid  fees.  Sec.  5.  "The  entire 
fee  or  fees  for  the  procuring  of  one  situa- 
tion or  job  and  for  all  expenses,  incidental 
thereto,  to  be  received  by  any  employment 
agency,  from  any  applicant  for  employment 
at  any  time,  whether  for  registration  or 
other  [343]  purposes,  shall  not  exceed  10 
per  cent  of  the  first  month's  wages;"  no 
registration  fee  shall  exceed  $1  and  in  cer- 
tain contingencies  one  half  of  this  must  be 
returned.  Sec.  6.  ''No  employment  agent  or 
agency  shall  send  an  applicant  for  employ- 
ment to  an  employer  who  has  not  applied  to 
such  agent  or  agency  for  help  or  labor;"  nor 
fraudulently  deceive  any  applicant  for  help, 
etc.  Sec.  7.  No  agency  shall  direct  any 
applicant  to  an  immoral  resort,  or  be  con- 
ducted where  intoxicating  liquors  are  sold. 
Sec.  8.  Violations  of  the  act  are  declared 
1086 


to  be  misdemeanors  and  punishment  is  pre- 
scribed. 

The  supreme  court  of  Michigan  held  'the 
business  is  one  properly  subject  to  police 
regulation  and  control;"  the  prescribed  li- 
cense fee  is  not  excessive;  provisions  of  the 
state  Constitution  in  respect  of  local  legis- 
lation are  not  infringed;  and  no  arbitrary 
powers  judicial  in  character  are  conferred 
on  the  commissioner  of  labor.  But  it  did 
not  specifically  rule  concerning  the  validity 
of  limitations  upon  charges  for  services 
specified  by  §  5. 

Considering  our  former  opinions  it  seems 
clear    that   without   violating  the    Federal 
Constitution  a  state,  exercising  its  police 
power,    may    require   licenses   for   employ- 
ment   agencies,    and    prescribe    reasonable 
regulations  in  respect  of  them,  to  be  en- 
forced according  to  the  legal  discretion  of  a 
commissioner.     The  general  nature  of  the 
business  is  such  that,  unless  regulated,  many 
persons    may    be    exposed    to    misfortunes 
against  which  the  legislature  can  properly 
protect  them.     Williams  ▼.  Fears,  179  U. 
S.  270,  275,  45  L.  ed.  186,  189,  21  Sup.  Ct 
Rep.  128;   Gundling  ▼.  Chicago,  177  U.  S. 
183,  188,  44  L.  ed.  725,  728,  20  Sup.  Ct 
Rep.  633;  New  York  ex  rel.  Lieberman  v. 
Van  De  Carr,  199  U.  S.  .552,  562,  563,  50 
L.  ed.  305,  310,  311,  26  Sup.  Ct.  Rep.  144; 
Kidd,  D.  &  P.  Co.  ▼.  Musselman  Grocer  Co. 
217  U.  S.  461,  472,  54  L.  ed.  889,  845,  30 
Sup.  Ct.  Rep.  606;  Engel  ▼.  CMalley,  210 
U.  S.  128,  136,  55  L.  ed.  128,  136,  31  Sup. 
Ct.  Rep.  190;  Rast  ▼.  Van  Deman  &  L.  Ca 
240  U.  S.  342,  365,  ante,  679,  690, 36  Sup.  Ct 
Rep.  370;  Armour  &  Co.  v.  North  Dakota, 
240  U.  S.  510,  513,  ante,  771, 774,  36  Sup.  Ct 
Rep.   440;    See  Moore  ▼.  Minneapolis,  43 
Minn.  418,  45  N.  W.  719;  Price  v.  People, 
193  111.  114,  55  L.R.A.  588,  86  Am.  St.  Rep. 
306,  61  N.  E.  844 ;  People  ex  rel.  Armstrong 
y.  Warden,  183  N.  Y.  223,  2  L.RJ^.(N.S.) 
859,  76  N.  E.  11,  5  Ann.  Cas.  325.     In  its 
general  scope,  and  so  far  as  now    [344] 
sought  to  be  enforced  against  plaintiff  in 
error,  the  act  in  question  infringes  no  pro- 
vision  of  the   Federal   Constitution.     Hie 
charge  relates  only  to  the  plainly  misehier- 
ous  action  denounced  by  §  6.   Provisions  of 
§  5  in  respect  of  fees  to  be  demanded  or  re- 
tained are  severable  from  other  portions  of 
the  act,  and,  we  think,  might  be  eliminated 
without  destroying  it.     Their  validity  was 
not  passed  upon  by  the  supreme  court  of 
the  state,  and  has  not  been  considered  by 
us. 

The  judgment  of  the  court  below  is  af- 
firmed* 

241  V.  8. 


SPOKANE  &  L  B.  R.  CO.  T.  UNITED  STATES. 


UNITED  STATES. 


E  S.   C.  Rsporter's  «d.  344-301.) 


1.  P&eBeDger  ckri  operated  In  trkiat 
<m  %  standard  gauge  inUnirbBD  inUrttat« 
electric  railwaj  are  not  within  the  Excep- 
tion in  favor  of  cari  "used  upon  Btreet  rail- 
vays,"  which  is  made  by  the  unendment  of 
March  Z,  1003  (32  SUt.  at  L.  S43,  chftp. 
976,  Comp.  Stat.  1913,  g  86]3),  to  the  Fed- 


1913,  S  8605),  although  the;  i 
local  ilreet  railway  trackiB  for  the  mile  and 
a  quarter  tying  between  tbe  oompauy'a 
jards,  near  Uie  city  limits,  and  the  tenninal 

(For  other  cawa,  xe  Master  and  Berrant,  II.  a, 

2,  i.  In  DlEeat  Hap.  Ct.  1908.) 

Master  »nd  servant  —  oKfety  appliances 
—  penalties  —  dlfflcnlty  or  Impoaalbll- 
Ity  of  compliance  with  statale. 

2.  The  difficulty  or  inipoaaibili^  of 
equipping  paaieuger  cars  used  on  an  mter- 
urban  interstate  electric  railway  with  the 
grab  irons  and  automatic  couplers  re- 
quired by  the  Federal  safety  appliance  act 
of  March  2,  1693  (27  SUt  at  L.  631,  chap. 
196,  Comp.  Stat.  1913,  g  8906),  and  iU 
amendments,  does  not  relieve  the  railway 
company  from  liability  to  the  prescribed 
penalties  for  violations  of  those  acts. 

iFor  otber  c*hb,  aee  Master  and  Serraiit.  II.  a, 

3,  In  Digest  Sup.  Ct.  lOOS.l 

Evidence  —  expert  teatimoay  —  snIB- 
clency  of  safety  appliances. 

3.  Whether  or  not  openings  in  the  sills 
or  buflers  of  passenger  cars  operated  on  an 
interstate  interurban  electric  railway  were 
a  sufficient  protection  to  employees,  and 
were  sufficient  to  accomplish  the  purposes 
intended  to  be  accomplished  by  the  provi- 
sions of  the  Federal  safety  appliance  act 
of  March  2,  )8!)3  {27  Stat,  at  L.  631,  chap. 
196,  Comp.  Stat.  1913,  g  SeOG),  and  iU 
amendmcnlB,  requiring  secure  grab  irons  or 
hand  holds  in  the  ends  and  sides  of  each 
ear  for  greater  security  to  men  in  conpling 
and  uncoupling  cars,  and  were  better  than 
those  commonly  used  upon  cars  engaged  in 
interstate  commerce,  Is  not  a  subject  for 
expert  tcatiniony,  but  is  a  question  for  the 

Note. — On  the  spplicability  of  the  com- 
merce clause  or  atatute*  thereunder  to 
street  railways  or  to  interurban  roads — 
•ee  note  to  Omaha  k  C.  B.  Street  R.  Co.  v. 
Interstate  Cmnmerce  Commission,  46  LJLA. 
(N.S.)  385. 

On  duty  and  liability  under  Federal  and 
state  railway  safety  appliance  acta — see 
notes  to  Chicago,  M.  &  St.  P.  R.  Co.  v. 
United  States,  20  L.e.A.(N.S.)  473,  and 
Lake  Shore  ji  M.  S.  R.  Co.  v.  Benson,  41 
L.RJ^.(N.S.)  48. 
«0  Ii.  Od. 


'  to  determine  from  the  evidence,  under 
ler  instructions, 
other  cues,  see  BTldence,  VII.  1,  In  Dl- 

St  Sap.  Ct  looa.] 


mitted    I>ecember    IB,    lOlS.     Decided 
June  "5,   IS  16. 

ERROR  to  the  United  States  Cironit 
yniTt  of  Appeals  for  the  Ninth  Circuit 
eview  a  judgment  which  affirmed  a  judg- 
t  of  the  District  Court  for  the  Eastern 
.rict  of  Washington,  enforcing  penalties 
violations  of  the  Federal  safety  appli- 
f  acts.    Affirmed. 

M  same  case  below,  L.RjL— ,  — ,  127  C. 
L  61,  210  Fed.  243. 
he  facts  are  stated  in  the  opinion. 

r.  Will  O.  Graves  submitted  the  cause 
plaintift  in  error.    Messrs.  F.  H.  Graves 

B.  H.  Kizer  were  on  the  brief; 
he  language  of  the  exception  relied  upon 
imple,  and  under  accepted  rules  it  does 
seem  permissible  to  limit  its  operation 
'eading  into  it  the  word  "exclusively." 
nited  States  v.  Temple,  105  U.  S.  S7,  26 
d.  967',  C^erolcee  Tobacco  (Boudinot  v. 
ted  SUtes)  11  Wall.  61S,  20  L.  ed.  227. 
oreover,  to  limit  the  exception  to  cars 
usively  used  up«i  street  railways,  or 
le  In  use  upon  street  railways,  is  con- 
y  to  the  meaning  given  the  turn  "used," 
t  appears  in  other  parts  of  the  act. 
ihnsoD  V.  Southern  P.  Co.  196  U.  S.  1, 
'-..  ed.  363,  26  Sup.  Ct.  Rep.  ISS,  17  Am. 
.  Rep.  412;  Wabash  R.  Co.  v.  United 
;es,  93  0.  C.  C.  393,  188  Fed.  1;  South- 
R.  Co.  V.  Snyder,  109  C.  C.  A.  344,  187 
.  492;  Erie  R  Co.  v.  Russell,  106  C.  C. 
160,  183  Fed.  722;  Davis  v.  Cleveland, 
;.  A  St  L.  R.  Co.  146  Fed.  403. 
ut  if  it  is  said  that  the  language  is  so 
tral  as  to  he  ambiguous,  then  the  con- 
sional   intent  is  to  be  sought, — sought 

only  in  the  entire  context  of  the  see- 
, — statutes  or  series  of  statutes  in  pari 
«ria  (Atkins  v.  Fibre  Disintegrating 
18  Wall.  272,  21  L.  ed.  841),— but  also 
he  light  of  contemporaneous  events  and 
general  knowledge  of  mankind  concern- 
the  causes  for  the  exception  and  what 

designed  to  be  achieved, 
reston  v.  Browder,  1  Wheat,  116,  4  L.  ed. 

United  States  v.  Union  P.  R.  Co.  Bl 
1.  72,  23  L.  ed.  224;  Church  of  the  Holy 
lity  V.  United  States,  143  U.  8.  457,  38 
k1.  226,  12  Sup.  Ct.  Rep.  511;  United 
tes  V.  Whitridge,  197  U.  S.  136,  143,  49 
d.  698,  ess,  26  Sup.  Ct.  Rep.  406. 
^at  was  said  1:7  the  court  in  the  Omalia 
set  R.  Case  seems  thoroui^ly  applica- 
uo— controlling,  indeed— in  the  ease  at  l>ar. 
10S7 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  Tbem, 


Omaha  &  C.  B.  Street  R.  Co.  v.  Inter- 
state Commerce  Commission,  230  U.  S.  324, 
57  L.  ed.  1501,  46  L.RA.(N.S.)  385,  33  Sup. 
Ct.  Rep.  890. 

Error  was  committed  in  excluding  expert 
testimony  relative  to  the  sufficiency  of  the 
hand  holds  on  the  cars. 

Inland  &  Seaboard  Coasting  Co.  y.  Tolson, 
139  U.  S.  551,  560,  35  L.  ed.  270,  273,  11 
Sup.  Ct.  Rep.  653;  Eastern  Transp.  Line  ▼. 
Hope>,  95  U.  S.  297,  298,  24  L.  ed.  477,  478 ; 
United   States  Smelting  Co.  v.   Parry,  92 

0.  C.  A.  159,  166  Fed.  415;  Bellcfontaine  & 

1.  R.  Co.  V.  Bailey,  11  Ohio  St.  335 ;  Ogden 
V.  Parsons,  23  How.  167,  16  L.  ed.  410; 
Union  Ins.  Co.  v.  Smith,  124  U.  S.  405,  31 
L.  ed.  407,  8  Sup.  Ct.  Rep.  534;  Texas  &  P. 
R.  Co.  V.  Watson,  190  U.  S.  287,  47  L.  ed. 
1057,  23  Sup.  Ct.  Rep.  681;  Union  P.  R.  Co. 
V.  Clopper,  131  U.  S.  cxcii,  Appx.  and  26 
L.  ed.  243;  Union  P.  R.  Co.  v.  Novak,  9  C. 
C.  A.  629,  15  U.  S.  App.  400,  61  Fed.  573; 
Chicago  G.  W.  R.  Co.  v.  Price,  38  O.  C.  A. 
239,  97  Fed.  423;  Pittsburgh,  S.  &  N.  R.  Co. 
V.  Lamphere,  69  C.  C  A.  542,  137  Fed.  20; 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Hale,  99  C.  C. 
A.  379,  176  Fed.  71;  Troxell  v.  Delaware,  L. 
&  W.  R.  Co.  180  Fed.  871;  Mahoning  Ore 
&  Steel  Co.  V.  Blomfelt,  01  C.  O.  A.  390,  163 
Fed.  827 ;  Wabash  R.  Co.  v.  United  States, 
93  C.  C.  A.  393,  168  Fed.  1;  Louisville  & 
N.  R.  Co.  V.  Hall,  87  Ala.  708,  4  L.R.A. 
710,  13  Am.  St.  Rep.  84,  6  So.  277;  Louis- 
ville &  N.  R.  Co.  V.  Davis,  99  Ala.  593, 
12  So.  786;  T^uisville  &  N.  R.  Co.  v. 
Binion,  107  Ala.  645,  18  So.  75;  Louis- 
ville &  N.  R.  Co.  V.  Banks,  132  Ala.  471, 
31  So.  573;  Boan  v.  W.  T.  Smith  Lum- 
ber Co.  184  Ala.  535,  63  So.  564;  Kan- 
sas City  Southern  R.  Co.  v.  Henrie,  87  Ark. 
443,  112  S.  W.  907;  Rowland  v.  Oakland 
Consol.  Street  R.  Co.  110  Cal.  513,  42  Pac. 
983;  Peters  v.  Southern  P.  R.  Co.  160  Cal. 
48,  116  Pac.  400;  Colorado  Midland  R.  Co. 
V.  O'Brien,  16  Colo.  210,  27  Pac.  701,  13  Am. 
Neg.  Cas.  537;  Baltimore  &  P.  R.  Co.  v. 
Elliott,  9  App.  D.  C.  341 ;  Goodwyn  v.  Cen- 
tral R.  Co.  2  Ga.  App.  470,  68  S.  E.  688; 
Ivouisville,  N.  A.  &  C.  R.  Co.  v.  Frawley,  110 
Ind.  18,  9  N.  E.  594;  Louisville  &  S.  I.  Trac- 
tion Co.  V.  Snead,  49  Ind.  App.  16,  93  N.  E. 
177;  Whitsett  v.  Chicago,  R.  I.  &  P.  R.  Co. 

67  Iowa,  150,  25  N.  W.  104;  Reifsnyder  v. 
Chicago,  M.  &  St.  P.  R.  Co.  90  Iowa,  76,  57 
N.  W.  692;  Brownfteld  ▼.  Chicago,  R.  I.  & 
P.  R.  Co.  107  Iowa,  254,  77  N.  W.  1038,  5 
Am.  Neg.  Rep.  331;  Schroeder  v.  Chicago  & 
N.  W.  R.  Co.  128  Iowa,  865,  103  N.  W.  985; 
Kansas  City,  Ft.  S.  &  M.  R.  Co.  v.  Blaker, 

68  Kan.  244,  64  LJIA.  81,  75  Pac.  71,  1 
Ann.  Cas.  883;  Stewart  ▼.  Louisville  &  N. 
R.  Co.  136  Ky.  717,  125  8.  W.  154;  Balti- 
more Belt  R.  Co.  V.  Sattler,  100  Md.  306,  59 
Atl.  654,  3  Ann.  Cas.  660;  Baltimore  &  S.  P. 
1038 


R.  Co.  y.  Hackett,  87  Md.  224,  39  AtL  510; 
Baltimore  &  0.  R.  Co.  y.  Wbitacre,  124  Md. 
411,  92  Atl.  1060;  Johnson  y.  Detroit  &  M. 
R.  Co.  135  Mich.  853,  07  N.  W.  760;  Coins 
V.  Chicago,  R.  I.  &  P.  R.  Co.  47  Mo.  App. 
173;  Copenhaver  v.  Northern  P.  R.  Go.  42 
Mont.  453,  113  Pac.  467 ;  Missouri  P.  R.  Co. 
V.  Fox,  60  Neb.  531,  83  N.  W.  744,  8  Am. 
Neg.  Rep.  463;  .Jamieson  v.  New  York  k 
R.  Beach  R.  Co.  162  N.  Y.  630,  57  N.  E. 
1113;  Freemont  v.  Boston  &  M.  R.  Co.  187 
N.  Y.  571,  80  N.  E.  1109;  Cincinnati  &  Z.  R. 
Co.  V.  Smith,  22  Ohio  St.  227,  10  Am.  Rep. 
729;  Missouri,  O.  &  G.  R.  Co.  y.  Miller,  — 
Okla.  — ,  145  Pac.  367;  Jones  v.  Shaw,  16 
Tex.  Civ.  App.  290,  41  S.  W.  690 ;  Galveston, 
H.  &  S.  A.  R.  Co.  V.  Pitts,  —  Tex.  Civ.  App. 
— ,  42  S.  W.  255;  International  k  G.  N. 
R.  Co.  V.  Mills,  34  Tex.  Civ.  App.  127,  78 
8.  \\\  11;  San  Antonio  &  A.  Pass.  R.  Co.  v. 
Beauchamp,  54  Tex.  Civ.  App.  123,  116  S. 
W.  1163;  St.  Louis  Southwestern  R.  Co.  v. 
Neef,  —  Tex.  Civ.  App.  — ,  138  S.  W.  1168; 
Atchison,  T.  k  S.  F.  R.  Co.  v.  Bryant,  — 
Tex.  Civ.  App.  — ,  162  S.  W.  400 ;  i  isher  v. 
Waupaca  Electric  Light  k  R.  Co.  141  Wis. 
515,  124  N.  W.  1006. 

Assistant  Attorney  General  Underwood 
and  Mr.  John  C.  Brooke  submitted  the 
cause  for  defendant  in  error: 

The  act  is  remedial  and  should  be  liber- 
ally construed.  Its  primary  object  is  to 
promote  the  public  welfare  by  securing  the 
safety  of  employees  and  travelers. 

Johnson  v.  Southern  P.  Co.  196  U.  S.  1, 
49  L.  ed.  363,  25  Sup.  Ct.  Rep.  158,  17  Am. 
Neg.  Rep.  412;  United  SUtes  v.  Central  of 
Georgia  R.  Co.  157  Fed.  894;  United  SUtes 
V.  Chicago,  B.  &  Q.  R.  Co.  237  U.  S.  410,  413, 
59  L.  ed.  1023,  1027,  35  Sup.  Ct.  Rep.  634; 
United  States  v.  Erie  R.  Co.  237  U.  S.  402, 
59  L.  ed.  1019,  35  Sup.  Ct.  Rep.  621. 

The  facts  of  this  case  bring  it  within  both 
the  letter  of  the  statute  and  the  scope  of  its 
purpose. 

Southern  R.  Co.  v.  United  States,  222 
U.  S.  20,  56  L.  ed.  72,  32  Sup.  Ct.  Rep.  2, 
3  N.  C.  C.  A.  822;  Spokane  &  I.  E.  R.  Co. 
V.  Campbell,  133  C.  C.  A.  370,  217  Fed.  518; 
United  States  v.  Atchison,  T.  k  S.  F.  R. 
Co.  220  U.  S.  37,  44,  55  L.  ed.  361,  363,  31 
Sup.  Ct.  Rep.  362. 

Ihe  exception  relied  upon  is  in  the  nature 
of  a  proviso,  and  should  be  construed 
strictly,  and  not  extended  to  cover  excep- 
tions not  clearly  within  its  terms. 

United  States  v.  Dickson,  15  Pet.  141, 165, 
10  L.  ed.  689,  698;  Arnold  v.  United  States, 
147  U.  S.  494,  499,  37  L.  ed.  253,  255,  13 
Sup.  Ct.  Rep.  406;  Brown  v.  Maryland,  12 
Wheat.  419,  6  L.  ed.  678. 

Testimony  of  expert  witnesses  to  the 
effect  that  openings  in  the  buffer  of  a  car 

141  V.  S. 


1016. 


SPOKANE  &  I.  E.  R.  CO.  v.  UNITED  STATES 


345-347 


were  better  thmn  the  ordinary  grab  iron  was 
properly  excluded. 

Milwaukee  &,  St.  P.  R.  Co.  v.  Kellogg,  94 
U.  S.  469,  24  L.  ed.  256;'  Congress  A,  E. 
Spring  Co.  v.  Edgar,  99  U.  S.  645,  25  L.  ed. 
487 ;  Stillwell  &  B.  Mfg.  Go.  v.  Phelps,  130 
U.  S.  520,  82  L.  ed.  1035,  9  Sup.  Ct.  Rep. 
GOl ;  Montana  R.  Co.  ▼.  Warren,  137  U.  S. 
348,  34  L.  ed.  681,  11  Sup.  Ct.  Rep.  96; 
White  V.  Ballou,  8  Allen,  408;  Simmons  v. 
New  Bedford,  V.  &  N.  S.  B.  Co.  97  Mass. 
361,  93  Am.  Dec.  99;  Inland  &  Seaboard 
Coasting  Co.  v.  Tolson,  139  U.  S.  551,  559, 
35  L.  ed.  270,  273,  11  Sup.  Ct.  Rep.  G.'iS. 

Technical  words  or  phrases  in  a  statute 
will  be  understood  in  a  technical  sense  when 
the  act  treats  of  the  subject  in  relation  to 
which  such  words  are  technically  employed. 

Sutherland,  Stat.  Consir.  2d  ed.  §  395. 

The  precautions  taken  by  a  carrier  might 
afford  as  complete,  or  indeed  fuller,  protec- 
tion to  its  employees  than  the  means  de- 
manded by  the  law.  It  none  the  less  follows 
that  imposition  of  the  penalty  must  be  vis- 
ited upon  the  carrier  guilty  of  a  noncompli- 
ance with  the  act  of  Congress. 

United  SUtes  v.  Philadelphia  k  R.  R. 
Co.  223  Fed.  217;  Virginian  R.  Co.  v.  United 
States,  139  C.  0.  A.  278,  223  Fed.  748. 

Mr.  Chief  Justice  Wliite  delivered  the 
opinion  of  the  court: 

The  United  States  brought  this  suit 
against  the  railroad  company  to  recover 
penalties  for  fifteen  alleged  violations  of  the 
safety  appliance  act.  The  violations  con- 
sisted in  hauling  in  interstate  commerce  on 
October  23,  1911,  twelve  cars  which  were 
not  provided  with  hand  holds  or  grab  irons 
at  the  ends,  as  required  by  the  act,  and 
three  cars  which  were  not  equipped  with 
automatic  couplers.  The  answer  admitted 
that  at  the  time  named  all  fifteen  cars  had 
been  used  in  interstate  commerce,  and  that 
three  of  them  were  not  equipped  with  auto- 
matic couplers,  but  denied  that  the  other 
twelve  were  not  provided-  with  hand  holds 
or  grab  irons,  as  required  by  the  act,  and 
denied  that  it  had  in  any  respect  violated 
the  act,  because  all  fifteen  cars  were  used 
by  the  company  upon  its  line  of  street  rail- 
way, and  were  therefore  expressly  excepted 
from  the  operation  of  the  act.  A  verdict 
and  judgment  against  [346]  the  company 
on  all  fifteen  charges  was  affirmed  by  the 
court  below. 

We  briefly  state  the  material  facts.  The 
railroad  company  operated  a  street  railway 
system  in  Spokane,  Washington,  and  sev- 
eral interurban  electric  lines,  one  of  which 
extended  from  Spokane  to  Cceur  d*Alene, 
Idaho,  a  distance  of  about  40  miles.  Over 
this  line  passenger  trains  composed  of  two 
or  more  cars  were  operated,  starting  at  a 
•0  Jj.  ed. 


I  station  near  the  center  of  Spokane  and 
I  running  for  a  mile  and  a  quarter  on  the 
street  railway  tracks  to  the  company's 
yards  near  the  city  limits,  and  thence  over 
its  private  right  of  way  to  Coeur  d'Alene. 
The  road  was  standard  gauge,  with  rails  of 
standard  weight,  and  the  passenger  trains 
were  made  up  according  to  standard  rail- 
road rules,  with  markers  to  designate  the 
trains,  and  were  run  on  schedules  and  by 
train  orders.  Passengers  traveled  on  tick- 
ets entitling  them  to  ride  to  and  from  desig- 
nated stations,  at  which  regular  stops  were 
made,  and  express  matter  and  baggage  were 
carried  on  the  passenger  trains.  Tiie  strei't- 
car  business  was  entirely  separate  from 
that  done  by  the  interurban  liiu\  the  em- 
ployees of  the  one  having  nothing  whatever 
to  do  with  the  other,  and  although  stops 
wore  made  by  interurban  trains  within  tlie 
city  limits,  and  while  on  the  street  railway 
tracks,  tliey  were  made  solely  for  the  pur- 
pose of  taking  on  and  letting  off  passengers 
to  or  from  stations  outside  the  city.  In 
addition  to  its  passenger  trains,  the  inter- 
urban line  also  operated  freight  trains, 
which,  however,  started  from  the  company's 
yards  and  ran  directly  to  C<Eur  d'Alene, 
and  did  not,  therefore,  enter  upon  the  street 
irailway  tracks. 

The  fifteen  cars  here  in  question  were 
passenger  cars,  and  on  the  day  named  were 
used  in  passenger  trains  which  were  run 
from  the  station  in  Spokane  to  the  city 
limits,  and  thence  over  the  company's  right 
of  way  to  Oceur  d'Alene.  Twelve  of  them 
(those  which  it  was  charged  were  not 
equipped  at  the  ends  with  grab  irons  or 
hand  holds)  [347]  were  cars  regularly  used 
on  the  interurban  lines,  and  were  rounded  at 
the  ends  and  equipped  with  radial  couplers 
to  enable  the  trains  to  make  sharp  turns. 
As  the  swinging  of  these  couplers  from  one 
side  to  the  other  across  the  ends  of  the  cars 
would  break  off  grab  irons  of  the  type  ordi- 
narily used  on  the  ends  of  cars,  they  were 
not  used.  It  was  claimed,  however,  that 
the  requirements  of  the  safety  appliance  act 
with  respect  to  hand  holds  or  grab  irons 
were  in  substance  complied  with  by  a  differ- 
ent, and  what  was  asserted  to  be  an  equiva- 
lent, appliance;  that  is,  openings  in  the 
top  of  the  buffer  or  sill  extending  across 
the  ends  of  the  cars,  just  above  the  couplers. 
To  support  this  claim  the  company  offered 
testimony  of  experienced  railroad  men  to 
the  effect  "that  the  hand  holds  or  grab 
irons  in  the  buffers  or  sills  of  such  cars 
were  sufficient  to  protect  men  who  might  be 
required  to  go  between  the  cars  in  coupling 
or  otherwise  handling  them,  that  they  were 
sufficient  to  accomplish  purposes  intended 
to  be  accomplished  by  the  provisions  of  the 
safety  appliance  act  requiring  hand  holds 

1089 


347-350 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  TKbm, 


or  grab  iioiia  to  be  placed  upon  the  ends  of 
oars  used  in  interstate  commerce,  and  that 
they  were  better  than  those  commonly  used 
upon  cars  engaged  in  interstate  commerce." 
The  United  States  objected  to  the  intro- 
duction of  the  testimony,  and  it  was  ex- 
eluded  on  the  ground  "that  it  was  not  a 
question  for  expert  testimony,  but  was  a 
matter  of  common  knowledge."  During  the 
trial  (at  whose  request  it  does  not  appear) 
the  jury  were  taken  to  inspect  the  open- 
ings in  some  of  the  cars. 

The  other  three  cars  were  large  street 
cars  which  were  regularly  used  only  on  the 
street  railway  tracks,  but  which,  because 
of  unusually  heavy  traffic  on  the  day  named, 
were  coupled  together  with  link  and  pin 
couplers  and  operated  as  a  train  to  Cceur 
d'Alene. 

The  assignments  of  error  present  two 
questions  which  we  consider  separately. 

[348]  1.  It  is  urged  that  error  was 
committed  in  construing  the  safety  ap- 
pliance act,  since,  when  correctly  in- 
terpreted, the  fifteen  cars  in  question 
were  expressly  excepted  from  its  require- 
ments. To  appreciate  the  contentions 
based  upon  this  proposition  it  is  neces- 
sary to  recur  to  the  text  of  the  orig- 
inal act  and  the  amendments  thereto.  By 
the  act  of  March  2,  1893  (chap.  196,  27 
Stat,  at  L.  531,  Comp  SUt.  1913,  §  8605), 
it  was  made  unlawful  for  any  common 
carrier  ''to  haul  or  permit  to  be  hauled 
or  used  on  its  line  any  car  used  in  moving 
interstate  traffic  not  equipped  with  couplers 
coupling  automatically  by  impact"  (§  2), 
or  **to  use  any  car  in  interstate  commerce 
that  is  not  provided  with  secure  grab  irons 
or  hand  holds  in  the  ends  and  sides  of  each 
car  for  greater  security  to  men  in  coupling 
and  uncoupling  cars"  (§  4),  with  the 
proviso  that  the  prohibitions  of  the  act 
should  not  apply  to  "trains  composed  of 
four-wheel  cars  or  to  locomotives  used  in 
hauling  such  trains"  (§6).  By  the  act 
of  April  1,  1896  (chap.  87,  29  Stat,  at  L. 
86,  Comp.  Stat.  1913,  §  8610)  the  proviso 
of  §  6  was  amended  as  follows:  "That 
nothing  in  this  act  contained  shall  apply 
to  trains  of  four-wheel  cars  or  to  trains 
composed  of  eight-wheel  standard  logging 
cars  ...  or  to  locomotives  used  in 
hauling  such  trains  when  such  cars  or  loco- 
motives are  exclusively  used  for  the  trans- 
portation of  logs."  By  the  amendment  of 
March  2,  1903  (chap.  976,  32  Stat,  at  L. 
943,  Comp.  Stat.  1913,  §  8613),  the  pro- 
visions of  the  act  relating  to  automatic 
couplers,  grab  irons,  etc.,  were  extended  and 
made  applicable  to  "all  trains,  locomotives, 
tenders,  cars,  and  similar  vehicles  used  on 
any  railroad  engaged  in  interstate  com- 
merce, and  in  the  territories  and  the  Dis- 
1040 


trict  of  Columbia,  and  to  all  other  loco- 
motives, tenders,  cars,  and  similar  vehicle! 
used  in  connection  therewith,"  and  to  the 
exceptions  from  the  requirements  of  the 
original  act  and  the  amendment  of  1896 
were  added  ''trains,  cars,  and  locomotives 
.  .  .  which  are  used  upon  street  rail- 
ways." 

The  contention  is  that  as  the  trains  in 
which  the  fifteen  cars  were  hauled  were 
operated  over  the  street  railway  [340] 
tracks  from  the  station  in  Spokane  to  the 
yards  of  the  company,  they  were  ''used  upon 
streets  railways,"  and  were  henoe  eiqpressly 
exempted  from  the  requirements  of  the  act 
by  the  amendment  of  1903.  This,  it  it 
said,  results  from  the  unambiguous  text 
of  the  exception  contained  in  that  amend- 
ment, and  is  from  a  twofold  point  of  view 
made  additionally  certain  by  the  context  of 
the  act  which  we  have  quoted.  The  argu- 
ment is  that  the  word  "used"  in  the  amend- 
ment of  1903,  excepting  cars,  etc,  ''used 
upon  street  railways,"  must  be  construed  as 
having  the  same  significance  as  the  same 
word  in  the  amendment  making  the  act 
applicable  to  all  cars,  etc,  "used  on  any 
railroad  engaged  in  interstate  commerce." 
From  this  premise  it  is  insisted  that  as  the 
latter  provision  has  been  construed  as  en- 
larging the  scope  of  the  act  by  causing  it  to 
embrace  all  cars  used  on  interstate  com- 
merce railroads,  although  at  the  particular 
time  the  cars  are  employed  in  intrastate 
commerce  (Southern  R.  Co.  v.  United 
States,  222  U.  S.  20,  56  L.  ed.  72,  32  Sup. 
Ct.  Rep.  2,  3  N.  C.  C.  A.  822),  it  must  fol- 
low that  the  word  "used"  in  the  street  rail- 
way excepting  clause  under  consideration 
must  have  the  same  construction,  and  there- 
fore exclude  from  the  operation  of  the  act 
all  cars  used  upon  street  railways,  however 
temporary  such  use,  and  however  frequent 
or  material  may  be  their  use  in  interstate 
commerce  on  other  than  street  railways. 
Again,  it  is  urged  that  the  judgment  of  the 
court  below  can  .be  affirmed  only  by  con- 
struing the  word  "used"  in  the  exception 
as  meaning  exclusively  used, — a  construc- 
tion which,  it  is  said,  would  be  wholly  un- 
warranted in  view  of  the  amendment  of 
1896,  excepting  from  the  act  certain  cara, 
etc,  "exclusively  used  for  the  transporta- 
tion of  logs,"  and  the  demonstration  thereby 
afforded  that  if  such  a  meaning  had  been 
contemplated  by  Congress  in  the  amend- 
ment of  1903,  the  word  "exclusively"  would 
have  been  employed.  But  we  think  the 
want  of  merit  in  the  contentions  is  clear, 
and  the  unsoundness  of  the  argument  ad- 
vanced [350]  to  sustain  them  apparent.  We 
say  this  because,  while  it  is  conceded  that 
I  the  obvious  purpose  of  Congress  in  enacting 
'  the  law  and  its  amendments  was  to  secure 

341  V.  B. 


1915. 


CUBBINS  ▼.  MISSISSIPPI  RIVER  COM. 


350,  361 


the  safety  of  railroad  employees,  and  that 
the  amendment  of  1903  sought  to  enlarge 
and  make  that  purpose  more  complete,  yet 
it  is  insisted  that  th^  exception  in  the  act 
should  receive  such  a  broad  construction  as 
would  destroy  the  plain  purpose  which 
caused  the  act  to  be  adopted.  But  to  so 
treat  the  act  would  be  in  plain  disregard 
of  the  elementary  rule  requiring  that  ex- 
ceptions from  a  general  policy  which  a  law 
embodies  should  be  strictly  construed;  that 
is,  should  be  so  interpreted  as  not  to  de- 
stroy the  remedial  processes  intended  to  be 
accomplished  by  the  enactment.  That  the 
meaning  contended  for  would  be  in  direct 
conflict  with  this  rule  would  seem  free 
from  doubt,  since  the  inevitable  result  of 
sustaining  the  contention  would  be  to  put 
it  in  the  power  of  a  railroad,  by  operating 
a  train  for  a  trifling  distance  over  tracks 
within  the  exception,  to  thereby  secure  the 
right  tliereafter  to  operate  such  train  over 
long  distances  without  regard  to  compliance 
with  the  safeguards  of  the  statute  which 
otherwise  would  be  controlling.  And  this 
reasoning  disposes  of  the  contention  deduced 
from  the  use  of  the  word  "exclusively"  in 
the  provision  excepting  cars  used  on  logging 
railroads,  and  its  absence  in  the  street  rail- 
way clause,  since,  on  the  face  of  the  statute, 
the  object  of  both  provisions  was  to  exempt 
both  the  logging  and  street  railway  cars 
from  the  operation  of  the  act  only  when 
used  for  logging,  on  the  one  hand,  and  on 
street  railways,  on  the  other,  and  not  to 
exempt  them  when  not  so  used. 

The  suggestion  is  made  in  argument  that 
in  any  event  the  railroad  company  was  not 
liable  for  the  penalties  because  of  the  diffi- 
culty of  equipping  the  twelve  cars  with  grab 
irons  which  would  not  interfere  with  the 
lateral  movement  of  the  radial  couplers,  and 
because  the  other  three  cars  were  so  con- 
structed that  they  could  not  be  [351] 
provided  with  automatic  couplers,  and  were 
used  only  on  the  one  day  because  of  un- 
usually heavy  traffic.  But  this  merely  as- 
serts that  the  statute  may  be  violated  with 
impunity  if  only  the  railroad  finds  its  pro- 
visions onerous,  or  deems  it  expedient  to 
do  so. 

2.  It  is  contended  that  error  wigi  com- 
mitted in  rejecting  the  testimony  of  experts 
oflTered  by  the  railroad  company  as  to 
the  protection  afforded  to  employees  by  the 
openings  in  the  buffers  at  the  ends  of  the 
twelve  cars.  Without  stopping  to  point  out 
the  inappositeness  of  the  many  authorities 
cited  in  support  of  the  contention,  we  think 
the  court  was  clearly  right  in  holding  that 


view  of  the  full  and  clear  instruction  given 
on  the  subject,  concerning  which  no  com- 
plaint is  made. 
Affirmed. 


Mr.  Justice  McReynolds  took  no  part  in 
the  consideration  and  decision  of  this  case 


JOHN  F.  CUBBINS,  Appt., 
v. 

MISSISSIPPI  RIVER  COMMISSION  and 
the  Yazoo-Mississippi  Delta  Levee  Board. 

(See  S.  C.  Reporter's  ed.  351-370.) 

Waters  —  riparian  rights  —  obstruct- 
ing flow  —  protection  against  acci- 
dental or  extraordinary  floods. 

1.  Riparian  owners  may,  without  lia- 
bility to  other  riparian  owners,  protect 
themselves  from  the  consequences  of  ac- 
cidental and  extraordinary  floods  by  erect- 
ing defensive  works  along  the  front  of  their 
lands. 

[For  other  oases,  see  Waters,  II.  b,  in  Digest 
Sup.  Ct.  1908.] 

Waters  —  riparian  rights  —  obstruct- 
ing flow  —  protection  against  acci- 
dental or  extraordinary  floods. 

2.  The  entire  valley  which  the  Missis- 
sippi river  traverses  may  not  be  regarded 
as  the  high-water  bed  of  the  river,  so  that 
levees  may  not  be  erected  on  its  natural 
banks  as  a  protection  against  accidental 
and  extraordinary  floods  without  liability 
to  riparian  owners  whose  lands  may  be 
damaged  by  the  consequent  raising  of  the 
flood  level. 

[For  other  caftes,  see  Waters,  II.  b,  in  Digest 
Sup.  Ct.  1908.] 

Waters  —  riparian  rights  —  obstruct- 
ing flow  —  protection  against  acci- 
dental or  extraordinary  floods. 

3.  A  riparian  owner  may  not  complain 
of  the  building  of  levees  along  the  natural 
banks  of  the  Mississippi  river  for  the  pur- 
pose of  containing  the  water  in  times  of 
flood  within  the  river,  and  preventing  it 
from  spreading  over  the  alluvial  vallev 
through  which  the  river  flows,  even  though 
the  resulting  increase  in  the  volume  of  <£e 

Note. — On  the  right  of  riparian  owner  as 
against  other  riparian  owners  to  confine 
flood  waters  within  banks  of  stream — see 
note  to  Jefferson  v.  Hicks,  24  L.RA.(N.S.) 
214. 

On  liability  of  municipality  for  confining 
flood  water  within  banks  of  stream  to  in- 
jury of  riparian  owner — see  note  to  Walters 
V.  Marshalltown,  26  LJt.A.(N.S.)   199. 


As  to  whether  casting  water  up<m  oppo- 

the  question  was  not  one  for  expertT,  and  |  ^^.  ^*^^  5^  '**?*"«  5"^  **L*  "*^^  "  * 
that  the  jury.  aUer  hearing  the  testimony   ff^^al'^^o^'^^^n^otrt  ~^ 
and  inspecting  the  openmgs,  were  compe-|worth    Improv.    Dist    V.    FU    Worth,    48 
tent  to  determine  the  issue,  particularly  in    L.RA.(N.S.)  994. 
60  li.  ed.  66  1041 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tmmm^ 


waters  within  the  river  raiees  its  flood  level 

so  as  to  overflow  his  land. 

[For  other  cases,  see  Waters,  li.  b,  in  Digest 
Sup.  Ct.  1008.] 

Waters  —  power  of  Ck>ngre88  —  Im- 
proving navigation  —  Mississippi 
levees. 

4.  The  building  of  levees  along  the 
natural  banks  of  the  Mississippi  river  un- 
der the  authority  vested  in  Congress  to  im- 
prove navigation  gives  rise  to  no  valid 
cause  for  complaint  to  riparian  owners 
whose  lands  are  overflowed  as  a  consequence 
of  the  resulting  increase  in  the  volume  of 
the  river  and  the  raising  of  the  flood  leveL 
[For  other  cases,  see  Waters,  I.  d,  8,  in  Digest 
Sup  Ct  1008.1 

[No.  299.] 

Argued  April  24,   1916.     Decided  June  5, 

1916. 

APPEAL  from  the  District  Court  of  the 
United  States  for  the  Northern  Dis- 
trict of  Mississippi  to  review  a  decree  dis- 
missing the  bill  in  a  suit  to  enjoin  the  en- 
larging, strengthening,  repairing,  or  main- 
taining of  levees  along  the  Mississippi  river. 
Afiirmed. 
The  facts  are  stated  in  the  opinion. 

Mr.  Bamette  E.  Moses  argued  the  cause 
and  filed  a  brief  for  appellant: 

The  right  of  the  appellee  levee  district  for 
the  reclamation  of  lands,  to  construct  levees 
along  the  Mississippi  river,  a  navigable 
fresh-water  stream,  which  have  the  effect  of 
obstructing  the  natural  flow,  and  turning 
the  water  upon  the  lands  of  an  owner  on 
the  opposite  side  of  the  river,  is  not  a  local 
question,  but  is  one  of  general  law,  on  which 
decisions  of  the  state  courts  are  not  binding 
on  the  Federal  courts. 

Carlo,  V.  A  C.  R.  Co.  v.  Brevoort,  25 
L.ILA.  527,  62  Fed.  129;  Hollingsworth  v. 
Tensas  Parish,  4  Woods,  280, 17  Fed.  115. 

The  term  "property,"  in  its  legal  signifl- 
cation,  means  only  the  right  of  the  owner 
to  possess,  use,  enjoy,  and  dispose  of  a 
thing. 

Eaton  V.  Boston,  C.  ft  M.  R.  Co.  51  N.  H. 
511,  12  Am.  Rep.  147. 

The  land  of  appellant,  in  its  natural  con- 
dition, was  from  8  to  10  feet  above  the 
highest  natural  flood  heights  of  the  Missis- 
sippi river,  and  the  highest  natural  floods 
did  not  overflow  it  nor  interfere  with  the 
use  and  occupancy  thereof.  His  property  in 
his  land  was  full,  absolute,  and  complete. 
His  right  to  use,  possess,  and  enjoy  it  was 
unlimited  and  unqualifled.  In  its  natural 
condition  his  land  constituted  neither  a  part 
of  the  bed  nor  a  part  of  the  bank  of  the 
river. 

Paine  Lumber  Co.  v.  United  States,  55 
Fed.  866;  Carpenter  v.  Hennepin  County,  56 
Minn.  513,  58  N.  W.  295. 
104S 


Appellant  had  an  entire,  absolute^  and  un- 
qualified property  in  hik  land  on  the  eastern 
side  of  the  Mississippi  river,  situated  above 
the  highest  natural  fiood  waters.  His  land 
was  subject  to  no  easement  or  servitude  in 
favor  of  appellees  or  any  other  person.  It 
was  upland. 

Chandler  Dunbar  Water  Pow^  Co.  v. 
United  States,  229  U.  S.  70,  57  L.  ed.  1078, 
83  Sup.  Ot.  Rep.  667. 

The  distinction  between  the  police  power 
and  the  right  of  eminent  domain  is  a  ques- 
tion of  general  jurisdiction,  and  not  one  of 
local  law. 
Hollingsworth  v.  Tensas  Parish,  supra. 
The  construction  of  works  for  the  im- 
provement of  navigation  is  an  exercise  of 
the  power  of  eminent  domain,  and  the  owner 
of  private  property  taken  for  that  purpose 
must  be  compensated. 

United  States  v.  Lynah,  188  U.  S.  445,  47 
L.  ed.  b39,  23  Sup.  Ct.  Rep.  349;  Arimond 
V.  Green  Bay  &  M.  Canal  Co.  31  Wis.  316; 
King  V.  United  States,  59  Fed.  0 ;  Williams 
V.  United  SUtes,  104  Fed.  50;  Carlson  v. 
St.  Louis  River  Dam  &  Improv.  Co.  73  Minn. 
128,  41  L.R.A.  371,  72  Am.  St.  Rep.  610,  75 
N.  W.  1044;  Velte  v.  United  States,  76  Wis. 
278,  45  N.  W.  119;  Desty,  Fed.  Const  322. 
Ilie  construction  of  levees  for  the  recla- 
mation of  lands  from  overflow,  although 
referable  in  a  certain  sense  to  the  police 
power,  is  likewise  an  exercise  of  the  power 
of  eminent  domain,  and  the  owner  of  prop- 
erty "taken"  for  such  purpose  must  be  com- 
pensated therefor. 

Reelfoot  Lake  Levee  Dist.  v.  Dawson,  97 
Tenn.  172,  34  L.RJL  725,  36  S.  W.  1041; 
Levee  Inspectors  v.  Critt^iden,  36  C.  C.  A. 
418,  94  Fed.  613;  Hollingsworth  v.  Tensas 
Parish,  supra;  Head  v.  Amoskeag  Mfg.  Co. 
118  U.  S.  9,  28  L.  ed.  889,  5  Sup.  Ct.  Rep. 
441 ;  Hughes  v.  Mississippi  Levee  Comrs.  — 
Miss.  — ,  27  So.  744;  Ex  parte  Martin,  13 
Ark.  198,  58  Am.  Dec  321;  Carson  v.  St 
Francis  Levee  Dist.  59  Ark.  513,  27  S.  W. 
590. 

The  police  power,  under  which,  as  in  the 
case  of  Reelfoot  Lake  Levee  Dist.  v.  Daw- 
son, 97  Tenn.  172,  34  L.RJL  725,  36  S.  W. 
1041,  it  has  several  times  been  attempted, 
in  valo,  to  justify  the  taking  of  private 
property  for  levee  purposes,  without  com- 
pensation, is  founded  upon  the  maxim  8ie 
utere  tuo  ut  oHenum  non  Icsdos,  which  is 
very  different  from  the  power  of  eminent 
domain.  The*  police  power  extends  only  to 
the  regulation  of  the  private  injurious  use 
of  property;  and  to  hold  that,  by  reference 
to  it,  the  right  exists -to  take  the  property 
of  another  for  the  purpose  of  enhancing  the 
value  of  one's  own,  would  be  a  subversion 
of  the  very  maxim  upon  which  the  alleged 
right  is  admitted  to  be  founded. 

141  V.  8. 


1915. 


Dill.  Mun.  Corp.  f  93 ;  Cooley,  Const.  Lim. 
p.  594;  Penrioe  v.  Wallis,  37  Miss.  172; 
Sweet  Y.  Rechel,  159  U.  S.  309,  40  L.  ed.  196, 
16  Sup.  Ct  Bep.  43. 

The  primary  purpose  for  which  levees  are 
constructed  by  the  appellee  levee  districts, 
along  the  Mississippi  river,  is  the  reclama- 
tion of  land. 

Hagar  v.  Reclamation  Dist.  Ill  U.  S.  701, 
28  L.  ed.  569,  4  Sup.  Ct.  Rep.  663;  Leovy  v. 
United  States,  177  U.  8.  621,  44  L.  ed.  914, 
20  Sup.  Ct.  Rep.  797 ;  Manigault  v.  Springs, 
199  U.  S.  473,  50  L.  ed.  274,  26  Sup.  Ct. 
Rep.  127 ;  Carson  ▼.  St.  Francis  Levee  Dist. 
59  Ark.  532,  27  S.  W.  590. 

An  owner  of  land  on  one  side  of  a  stream 
has  no  right  to  build  levees  upqpi  his  tide 
which  will  prevent  the  escape  of  flood  water, 
in  times  of  ordinary  flood,  over  his  side,  and 
cast  them  upon  land  on  the  opposite 
side. 

Cairo,  V.  A,  C.  R.  Co.  v.  Brevoort,  25 
L.R.A.  527,  62  Fed.  129 ;  Rex  v.  Trafford,  1 
Bam.  &  Ad.  874,  1  Moore  &  S.  401,  2  Cromp. 
ft  J.  265,  9  L.  J.  Mag.  Cas.  66,  8  Bing.  204 ; 
Paine  Lumber  Co.  v.  United  States,  55  Fed. 
854;  Woodruff  ▼.  North  Bloomfleld  Oravel 
Min.  Co.  9  Sawy.  441,  18  Fed.  782;  Jones  v. 
United  SUtes,  48  Wis.  385,  4  N.  W.  519; 
Velte  V.  United  SUtes,  76  Wis.  278,  45  N. 
W.  119;  Burweli  ▼.  Hobson,  12  Oratt.  322, 
65  Am.  Dec.  247 ;  O'Connell  ▼.  East  Tennes- 
see, V.  &  G.  R.  Co.  87  Ga.  246,  13  L.R.A. 
304,  27  Am.  St.  Rep.  246,  13  S.  £.  489; 
Gcrrish  v.  Clough,  48  N.  H.  9,  2  Am.  Rep. 
165,  97  Am.  Dec.  561;  Parker  v.  Atchison, 
58  Kan.  29,  48  Pac.  631;  Shane  ▼.  Kansas 
City,  St.  J.  A  C.  B.  R.  Co.  71  Mo.  238,  86 
Am.  Rep.  480;  Gulf,  C.  &  8.  F.  R.  Co.  v. 
Clark,  2  Ind.  Terr.  319,  51  S.  W.  962; 
Barden  ▼.  Portage,  79  Wis.  126,  48  N.  W. 
210;  Crawford  v.  Rambo,  44  Ohio  St.  279, 
7  N.  E.  429;  Sullivan  v.  Dooley,  31  Tex. 
Qiv.  App.  589,  73  S.  W.  82;  Byrd  v.  Bless- 
ing, 11  Ohio  St.  362;  Meyers  v.  St.  Louis,  8 
Mo.  App.  266;  Menzies  v.  Breadalbane,  3 
Bligh,  N.  R.  414;  Rix  v.  Johnson,  5  N.  H. 
520,  22  Am.  Dec.  472 ;  Jones  v.  Soulard,  24 
How.  41,  16  L.  ed.  604;  Adams  v.  Frothing- 
ham,  3  Mafs.  352,  3  Am.  Dee.  151;  Rex  v. 
Tarborough,  3  Barn.  &  C.  91,  2  Bligh.  K.  R. 
147,  1  Dow.  &  C.  178,  5  Bing.  163,  4  Dowl. 
&  R.  91,  27  Revised  Rep.  292,  1  Eng.  Rul. 
Cas.  458;  Scratton  ▼.  Brown,  4  Barn,  k  C. 
485,  6  Dowl.  &  R.  536,  28  Revised  Rep.  344; 
Gould,  Waters,  §  209,  and  notes. 

Th6  all^ations  of  appellant's  bill  show  a 
taking  of  his  property  within  the  constitu- 
tional provisions  requiring  compensation. 

Pumpelly  v.  Green  Bay  &  M.  Canal  Co. 
18  Wall.  16^,  20  L.  ed.  557 ;  United  States 
Y.  Lynah,  188  U.  S.  445,  47  L.  ed.  539,  23 
Sup.  Ct.  Rep.  349;  Boston  A  R.  Mill  Corp. 
Y.  Newman,  12  Pick.  467,  23  Am.  Dec.  622; 
•0  li.  ed. 


CUBBINS  Y.  MISSISSIPPI  RIVER  OOM. 

4 


Hooker  y.  New  Haven  k  N.  Go.  14  Conn. 
146,  36  Am.  Dec.  477;  King  y.  United 
States,  59  Fed.  9;  Lowndes  y.  United  States, 
105  Fed.  838;  United  States  v.  Great  Falls 
Mfg.  Co.  112  U.  S.  645,  28  L.  ed.  846,  6 
Sup.  Ct.  Rep.  306;  High  Bridge  Lumber 
Co.  V.  United  States,  16  C.  C.  A.  460,  37  U. 
S.  App.  234,  69  Fed.  326;  Paine  Lumber  Co. 
Y.  United  States,  55  Fed.  854;  Jones  v. 
United  SUtes,  48  Wis.  385,  4  N.  W.  519; 
Velte  V.  United  States,  76  Wis.  278,  45  N. 
W.  119;  United  States  v.  Welch,  217  U.  8. 
333,  54  L.  ed.  787,  28  L.R.A.(N.S.)  385,  80 
Sup.  Ct.  Rep.  527, 19  Ann.  Cas.  680;  United 
SUtes  Y.  Grizzard,  219  U.  S.  180,  55  L.  ed. 
165,  31  L.R.A.<N.S.)  1135,  31  Sup.  Ct.  Rep. 
162 ;  United  SUUs  y.  Sewell,  217  U.  S.  601» 
54  L.  ed.  897,  30  Sup.  Ct.  Rep.  691 ;  Monon- 
gahela  Nav.  Co.  v.  United  States,  148  U.  S. 
312,  336,  37  L.  ed.  463,  471,  13  Sup.  Ct. 
Rep.  622;  Scranton  v.  Wheeler,  179  U.  S. 
141,  153,  45  L.  ed.  126,  133,  21  Sup.  Ct.  Rep. 
48;  United  States  v.  Chandler-Dunbar 
Water  Power  Co.  229  U.  S.  70,  57  L.  ed. 
1078,  33  Sup.  Ct.  Rep.  667;  Chicago,  B.  & 
Q.  R.  Go.  v.  Illinois,  200  U.  S.  593,  50  L.  ed. 
609,  26  Sup.  Ct.  Rep.  341,  4  Ann.  Cas.  1175; 
McKenzie  v.  Mississippi  A  R.  River  Boom 
Co.  29  Minn.  288,  18  N.  W.  123;  Manigault 
Y.  Springs,  199  U.  S.  485,  50  L.  ed.  280,  26 
Sup.  Ct.  Rep.  127 ;  Bierer  v.  Hurst,  155  Pa. 
523,  26  AtL  742. 

Tlie  Urm  "natural  conditions"  is  applica* 
ble  to  and  should  be  considered  in  connec- 
tion with  the  ordinary  high-water  sUge  of 
the  river,  as  well  as  the  low-water  sUge 
thereof,  in  determining  the  questions  in  the 
cases  at  bar. 

Burweli  y.  Hobson,  12  Gratt.  322,  65  Am. 
Dec.  247;  Angell,  Watercourses,  §  333;  Rex 
Y.  Trafford,  1  Barn.  &  Ad.  874,  1  Moore  & 
S.  401,  2  Cromp.  &  J.  265,  9  L.  J.  Mag.  Cas. 
66,  8  Bing.  204;  Cairo,  V.  A,  C.  R.  Co.  y. 
Breyoort,  25  L.R.A.  527,  62  Fed.  129. 

The  facte  in  Jackson  v.  United  States,  230 
U.  S.  1,  57  L.  ed.  1363,  33  Sup.  Ct.  Rep. 
1011,  warrant  the  belief  that  the  injuries 
might  have  been  held  to  be  remote  or  conse- 
quential because  the  work  of  the  govern- 
ment, upon  which  the  third  ground  of  com- 
plaint was  based,  operated  only  te  restore 
natural  conditions  at  the  Bougere  crevasse, 
and  the  injuries  to  the  Jackson  land,  in  so 
far  as  this  work  was  concerned,  were  not 
the  direct  and  proximate  result  of  the  work, 
but  were  the  direct  and  proximate  result  of 
the  operation  of  natural  forces,  after  the 
restoration  of  natural  conditions.  This  in- 
tervention of  natural  forces,  as  the  direct 
cause  of  the  injuries,  made  those  injuries 
remote  and  consequential,  in  so  far  as  the 
work  of  the  government  was  concerned,  and 
there  was,  therefore,  no  liability  on  iU 
part 

104S 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


Barnes  v.  Marshall,  68  Cal.  569,  10  Pac. 
115;  Bedford  v.  United  States,  102  U.  S. 
225,  48  L.  ed.  417,  24  Sup.  Ct.  Rep.  238; 
Gulf,  O.  &  S.  F.  R.  Co.  V.  Clark,  41  C.  C.  A. 
697,  101  Fed.  678. 

The  facts  in  the  Jackson  Case  warrant 
the  belief  that  the  injuries  might  have  been 
held  to  be  remote  or  consequential  because 
the  injury  alleged  in  the  third  ground  of 
complaint  amounted  to  a  mere  increase  in 
pressure  on  the  Jackson  levee,  and  the  de- 
struction could  have  been  prevented  by 
building  the  Jackson  levee  higher.  The  gov- 
ernment was  not  liable,  upon  this  theory, 
because  the  failure  of  the  Jacksons  to  build 
their  levee  higher  and  thus  prevent  the 
injury  was  the  direct  and  proximate  inter- 
vening cause  of  the  injury,  and  the  work  of 
the  government  was  only  a  remote  or  con- 
sequential cause,  in  fact. 

Manigault  v.  Springs,  199  U.  S.  485,  50 
L.  ed.  280,  26  Sup.  Ct.  Rep.  127. 

The  Jacksons  were  the  first  to  disturb 
natural  conditions  by  building  a  levee,  and 
they  could  not  recover  when  a  levee  was 
built  by  others  on  the  opposite  bank,  even 
though  the  Jackson  levee  and  land  were 
thereby  destroyed. 

Avery  v.  Empire  Woolen  Co.  82  N.  Y. 
582 ;  Menzies  v.  Breadalbane,  3  Bligh,  N.  R. 
421;  Wilhelm  v.  Burleyson,  106  N.  C.  381, 
11  S.  E.  590;  Davis  v.  Munro,  66  Mich.  485, 
33  N.  W.  408 ;  Harding  v.  Whitney,  40  Ind. 
370;  30  Am.  &  Eng.  Enc.  Law,  2d  ed.  p.  387. 

The  term  "consequential  damages"  has 
been  used  in  applying  the  comprehensive 
rule  stated  by  counsel,  to  designate  injuries 
which,  in  fact,  did  not  amount  to  a  material 
impairment  of  the  value  of  land. 

Gibson  v.  United  SUtes,  166  U.  S.  269,  41 
L.  ed.  006,  17  Sup.  Ct.  Rep.  578;  Northern 
Transp.  Co.  v.  Chicago,  99  U.  S.  635,  25  L. 
ed.  336. 

The  permanency  of  the  injury  has  been 
expressly  treated  as  one  of  the  determining 
factors  in  considering  this  question. 

HoUingsworth  v.  Tensas  Parish,  4  Woods, 
280,  17  Fed.  116;  Cumberland  &  0.  Canal 
Corp.  Y.  Hitohings,  57  Me.  146. 

The  term  "consequential  damages"  has 
also  been  used  to  designate  those  injuries 
which,  in  fact,  did  not  result,  directly  and 
proximately,  from  the  work  of  the  defend- 
ants. 

Bedford  v.  United  States,  102  U.  S.  226, 
48  L.  ed.  417,  24  Sup.  Ct.  Rep.  238. 

Its  application,  in  any  particular  case, 
however,  has  always  been  determined  by  the 
facts  in  that  case;  and  the  phrase  has  been 
used  broadly  to  designate  all  those  injuries 
which,  in  fact,  were  not  such  as  to  amount 
to  a  "taking"  within  the  rule  before  stated. 
The  use  of  this  term  to  designate,  as  a 
matter  of  law,  injuries  resulting  from  work 
1044 


done  by  the  government,  for  which  immu- 
nity from  liability  was  claimed,  regardless 
of  the  facts  as  to  proximate  cause,  or  the  bh- 
ture  of  the  injury,  has  been  expressly  re- 
pudiated by  this  court. 

United  States  v.  Lynah,  188  U.  S.  445,  47 
L.  ed.  539,  23  Sup.  Ct.  Rep.  349;  Mononga- 
hela  Nav.  Co.  v.  United  SUtes,  148  U.  S. 
312,  37  L.  ed.  463,  13  Sup.  Ct.  Rep.  622; 
Scratton  v.  Brown,  4  Bam.  &  C.  485,  6 
DowL  A  R.  536,  28  Revised  Rep.  344. 

No  provision  for  compensation  is  made  by 
the  state  acts  for  the  land  of  appellant;  and 
such  provision  is  an  indispensable  requisite 
to  their  constitutionality. 

Sweet  V.  Rechel,  159  U.  S.  380,  40  L.  ed. 
188,  16  S^p.  Ct.  Rep.  43;  Head  v.  Amoskeag 
Mfg.  Co.  113  U.  S.  9,  28  L.  ed.  889,  5  Sup. 
Ct.  Rep.  441;  Adirondack  R.  Co.  v.  New 
York,  176  U.  S.  335,  44  L.  ed.  492,  20  Sup. 
Ct.  Rep.  460;  Cherokee  Nation  v.  Southern 
Kansas  R.  Co.  135  U.  S.  641,  34  L.  ed.  295, 
10  Sup.  Ct.  Rep.  965;  Benedict  v.  New  York, 
39  C.  C.  A.  290,  98  Fed.  789;  Gardner  v. 
Newburgh,  2  Johns.  Ch.  162, 7  Am.  Dec  526; 
Ex  parte  Martin,  13  Ark.  198;  Bloodgood 
V.  Mohawk  &,  H.  River  R.  Co.  18  Wend. 
9,  31  Am.  Dec.  313;  Meriwether  v.  St 
Francis  Levee  Dist.  91  C.  C.  A.  285,  165  Fed. 
317. 

The  constitutional  provision  requiring 
cranpensation  is  merely  declaratory  of  the 
coDunon  law,  and  the  right  to  compensation 
was  recognized  before  the  Constitution. 

Staton  V.  Norfolk  &  C.  R.  Co.  Ill  N.  C. 
278,  17  L.R.A.  839,  16  S.  £.  181;  Gardner  v. 
Newburgh,  2  Johns.  Ch.  162,  7  Am.  Dec. 
526;  Withers  v.  Buckley,  20  How.  84,  15  L. 
^.816;  Kaukauna  Water  Power  Co.  v.  Green 
Bay  A,  M.  Canal  Co.  142  U.  S.  254,  35  L.  ed. 
1004,  12  Sup.  Ct.  Rep.  173;  Sinnickson  v. 
Johnson,  17  N.  J.  L.  129,  34  Am.  Dec.  184. 

Taking  private  property  without  compen- 
sation is  a  deprivation  thereof  without  due 
process  of  law. 

Cooley,  Const.  Lim.  p.  357;  Kaukauna 
Water  Power  Co.  v.  Green  Bay  &  M.  Canal 
Co.  142  U.  S.  264,  35  L.  ed.  1004,  12  Sup. 
Ct  Rep.  173 ;  Muhlker  v.  New  York  ft  H.  R. 
Co.  197  U.  S.  644,  49  L.  ed.  872,  26  Sup.  Ct 
Rep.  522;  Pumpelly  v.  Green  Bay  ft  M. 
Canal  Co.  13  WaU.  166,  20  L.  ed.  557; 
Scott  V.  Toledo,  1  Ii.RA.  688,  36  Fed.  385. 

Solicitor  General  Davis  argued  the  cause, 
and,  with  Mr.  Robert  Szold,  filed  a  brief 
for  the  Mississippi  River  Commission: 

Complainant  is  entitled  to  no  recovery 
at  law,  because  his  damages  are  remote  «nd 
consequential.  The  authorities  are  conclu- 
sive. 

Bedford  v.  United  SUtes,  192  U.  8.  217, 
48  L.  ed.  414,  24  Sup.  Ct  Rep.  23r ;  Jackson 
V.  United  States,  230  U.  S.  1,  67  L.  ed.  1363, 

241  V.  8. 


1916. 


CUBBINS  ▼.  MISSISSIPPI  RIVEK  COM. 


868-360 


38  Sup.  Ct  Rep.  1011;  Hughes  ▼.  United 
Stotet,  280  U.  S.  24,  67  L.  ed.  1374,  46 
LJa.A.(K.S.)  624,  83  Sup.  Ct.  Rep.  1010. 

Mr.  Gerald  FitzGerald  argued  the  cause 
and  filed  a  brief  for  the  Yazoo-Mississippi 
Delta  Levee  Board: 

The  principle  of  self-defense  applies  to 
persons,  commonwealths,  and  nations. 

Rex  T.  Suaeez  County,  8  Bam.  &  C.  355; 
Bowditch  ▼.  Boston,  101  U.  S.  16,  25  L.  ed. 
080;  Hoard  ▼.  Dea  Moines,  62  Iowa,  326,  17 
N.  W.  627;  Shelbyville  &  B.  Tump.  Co.  v. 
Green,  90  Ind.  205;  Cairo  &  V.  R.  Co.  v. 
Stevens,  73  Ind.  283,  38  Am.  Rep.  139; 
Dubose  ▼.  Levee  Comra.  11  La.  Ann.  165; 
Baaa  ▼.  State,  34  La.  Ann.  494;  Famham, 
Waters,  §  357,  p.  1340;  Jackaon  v.  United 
Stotes,  230  U.  S.  1,  57  L.  ed.  1363,  33  Sup. 
Ct.  Rep.  1011;  Kanaaa  City,  M.  &  B.  R.  Co. 
▼.  Smith,  72  Mias.  677,  27  L.R.A.  762,  48 
Am.  St  Rep.  579,  17  So.  78;  Lamb  v.  Recla- 
mation Diat.  73  Cal.  135,  2  Am.  St.  Rep.  775, 
14  Pac  625;  McCoy  v.  Plumb  Bayou  Levee 
Diat.  95  Ark.  345,  29  L.R.A.(Kj6.)  396,  129 
S.  W.  1097. 

When  progreaa  and  development,  not  in 
the  exerciae  of  eminent  domain,  but  in  an 
effort  to  combat  the  dangeroua  and  trouble- 
some "Father  of  Watera"  from  deatroying 
life  and  property,  causes  consequential  in- 
juries to  one's  property,  he  can  claim  no 
compensation  therefor. 

Jackson  ▼.  United  States,  230  U.  S.  1,  57 
L.  ed.  1363,  33  Sup.  Ct.  Rep.  1011;  Bedford 
V.  United  SUtes,  192  U.  S.  217,  48  L.  ed. 
414,  24  Sup.  Ct  Rep.  238;  Hughes  v.  United 
States,  230  V.  S.  24,  57  L.  ed.  1374,  46 
L.ItA.(N.S.)  624,  33  Sup.  Ct.  Rep.  1019; 
Gibson  v.  United  SUtes,  166  U.  S.  272,  41 
L.  ed.  1000,  17  Sup.  Ct.  Rep.  578;  Northern 
Transp.  Co.  ▼.  Chicago,  99  U.  S.  635,  25 
L.  ed.  336. 

Mr.  Chief  Justice  White  delivered  the 
opinion  of  the  court: 

The  conditions  out  of  which  this  contro- 
versy arises  are  substantially  the  same  as 
those  which  were  relied  upon  in  Jackson  v. 
United  Statea,  230  U.  S.  1,  57  L.  ed.  1363, 
33  Sup.  Ct  Rep.  1011.  We  therefore  here 
make  a  briefer  statement  of  the  topography 
of  the  country  with  which  the  case  is  con- 
cerned, and  of  the  other  general  conditions 
involved,  than  we  would  do  if  such  were  not 
the  caae,  ainoe,  if  a  fuller  atatement  aa  to 
any  particular  aapect  ia  desired,  it  can  be 
readily  found  by  a  reference  to  the  report 
of  that  case. 

The  complainant,  as  the  owner  of  a  piece 
of  land  on  the  east  bank  of  the  Miaaiaaippi 
river,  adjacent  to  Memphia,[369]  Tenneaaee, 
on  hia  own  behalf,  and  on  behi^lf  of  othera 
owning  aimilar  land  in  the  aame  locality, 
60  li.  ed. 


oommenoed  this  suit  against  the  Mississippi 
River  Commission  and  fifteen  local  state 
levee  boards  operating  on  the  river  between 
Cape  Girardeau,  Missouri,  and  the  mouth 
of  the  river  at  the  Gulf  of  Mexico,  three  of 
these  boards  being  organised  imder  the  laws 
of  Missouri,  four  under  the  law  of  Arkansas, 
one  under  that  of  Tennessee,  one  under  the 
law  of  Mississippi,  and  six  under  the  law 
of  Louisiana. 

It  was  alleged  that  in  flood  seasons,  when 
the  water  in  the  Mississippi  river  rose 
above  its  natural  low-water  banks,  such 
water  would  flow  out  and  over  the  vast  ba- 
sins in  which  the  alluvial  valley  between 
Cape  Girardeau  and  the  Gulf  formed  itself, 
and  would  then,  either  by  percolation  gradu- 
ally flow  back  into  the  river,  or  be  carried 
over  and  through  the  basins  by  the  streams 
flowing  through  them  into  the  Gulf  of 
Mexico,  where  such  streams  emptied.  It 
was  further  alleged  that  the  land  of  the 
complainant)  when  the  river  in  the  flood 
periods  was  thus  permitted  to  discharge 
its  waters,  was  so  situated  that  it  was  be- 
yond the  reach  of  overflow  from  the  river. 
It  was  then  alleged  that  in  1883  the  Miaaia- 
aippi River  Commiaaicm,  acting  under  the 
authority  of  Congreaa,  had  deviaed  a  plan 
known  aa  the  Eads  Plan,  by  which  it  waa 
contemplated  that  on  both  banka  of  the- 
river,  except  at  certain  placea,  which  were 
atated,  a  line  of  embankment  or  leveea 
would  be  built  which,  in  timea  of  high 
water  or  flood,  would  hold  the  water  rela- 
tively within  the  linea  of  the  low-water 
banka,  thua  improving  navigation  by  caua- 
ing  the  water  to  deepen  the  bed,  and  aav- 
ing  the  country  behind  the  leveea  from  in- 
undation. It  waa  averred  that,  to  further 
thia  plan,  the  various  state  levee  boards, 
which  were  made  defendants,  were  organ- 
ized, and  that  all  of  them,  within  the  scope 
of  their  power  and  the  limits  of  their  finan* 
cial  ability,  had  aided  in  carrying  on  thia 
work,  and  that,  as  the  result  of  their  work 
and  of  the  leveea  built  by  the  Miaaissippi 
[360]  River  Commiaaion,  it  had  come  to  paaa 
that  from  Cairo  to  the  Gulf,  a  diatance  of 
about  1,050  miles,  on  both  sides  of  the  river, 
except  at  points  which  were  stated,  there  was 
a  continuous  line  of  levee  restraining  the 
water  trom  flowing  out  into  the  basins,  as 
above  stated,  and  which,  in  many  instances, 
cut  off  the  outlets  connecting  the  streams 
which  drained  the  basins  and  ultimately 
carried  off  the  water  to  the  Gulf.  It  was 
charged  that  this  line  of  levees  as  a  whole 
had  been  virtually  adopted  by  the  Miaais- 
sippi  River  Con^mission,  which  body  had  as- 
sumed control  Of  the  whole  subject,  and  that 
such  body  and  all  the  atate  agencies  co-oper- 
ating were  engaged  in  strengthening,  ele- 
vating, reviewing,  repairing,  and  increasing 

1045 


360-363 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Tbm» 


the  lines  of  levee  so  ai  to  more  effectuaUy 
accomplish  the  purpose  in  view. 

It  was  charged  "that  the  effect  of  the  clos- 
ing by  the  defendants  of  the  natural  outlets 
along  the  said  river,  and  the  confining  of 
the  flood  waters  between  the  levee  system  as 
a  whole,  is  to  obstruct  the  natural  high- 
water  flow  of  the  water  of  said  river  in  and 
along  its  natural  bed  for  its  entire  length, 
thereby  raising  the  level  of  the  water  to 
such  an  extent  that  said  flood  waters,  with- 
in the  last  five  years,  hav^  attained  a  suf- 
ficient height  to  flow  over  complainant's 
land,  and  when  there  is  now  a  high-water 
stage  in  said  river,  the  waters  of  said  river 
accumulate,  flow  over,  and  remain  standing 
upon  and  over  said  lands  of  complainant  to 
a  depth  of  from  4  to  8  feet,  so  that  complain- 
ant is  now  being  interrupted  in  the  profit- 
able use,  occupation,  and  enjoyment  of  his 
said  land."  And  it  was  further  alleged  that 
^^said  land  is  being  covered  with  superin- 
duced additions  of  said,  silt,  and  gravel, 
now  from  6  inches  to  3  feet  in  depth;  the 
houses  and  fences  thereon  are  being  washed 
Away,  rendering  the  said  land  and  the  houses 
'thereon  unfit  for  occupancy,  driving  away 
-the  tenants,  doing  irreparable  harm  and  in- 
jury to  said  land,  impairing  its  usefulness, 
;[361]  causing  the  practical  destruction 
thereof,  and  destroying  its  market  value." 

It  was  averred  that  to  obstruct  the  river 
as  alleged  was  a  violation  of  the  legal  rights 
of  the  complainant,  since  he  was  entitled  to 
the  natural  flow  of  the  river  within  its  nat- 
ural high  or  low-water  bed,  free  from  inter- 
ference by  the  acts  of  the  defendants.  Aver- 
ring that  no  proceedings  had  been  taken  to 
expropriate  the  land,  and  that  no  offer  to 
pay  for  the  same  had  been  made,  and  that 
the  acts  complained  of  constituted  a  taking 
without  compensation,  in  violation  of  due 
process  of  law  under  ttie  Constitution  of  the 
United  States,  and  that  there  was  no  ade- 
quate remedy  at  law,  the  prayer  was  for  an 
injunction  against  the  Mississippi  River 
Commission  and  all  its  officers,  employees, 
agents,  and  contractors,  wherever  found, 
and  against  all  the  local  levee  boards  and 
their  officers,  employees,  agents,  and  con- 
tractors, perpetually  prohibiting  them  from 
further  building  any  levees,  from  enlarging, 
strengthening,  repairing,  or  doing  any  act 
to  maintain  the  levees  already  built,  and 
for  general  relief. 

The  bill  was  amended  by  alleging  that  the 
overflow  of  complainant's  land,  as  averred, 
instead  of  having  happened  within  flve 
years,  had  occurred  within  one  year,  and 
the  original  prayer  was  addfd  to  by  asking 
that  if  it  was  found  that  the  injunction 
prayed  could  not  be  granted,  the  case  be 
transferred  from  the  equity  to  the  law  side, 
and  be  converted  into  a  law  action  to  recov- 
1046 


I  er  from  the  Yacoo-Mississippi  Delta  Levee 
Board,  the  local  Mississippi  board  whidi 
■  alone  of  the  defendants  had  been  served,  the 
sum  of  $500,000  as  the  value  of  the  planta- 
tion alleged  to  have  been  wrongfully  taken. 

A  motion  by  that  corporation  was  made  to 
dismiss  the  bill  on  the  ground  that  it  stated 
no  basis  for  relief,  and  in  any  event  it  al- 
leged no  ground  for  equitable  jurisdiction, 
since  at  best,  upon  the  theory  that  a  cause  of 
action  was  [362] stated,  there  was  plainly 
an  adequate  remedy  at  law.  On  the  hearing 
the  motion  to  dismiss  was  joined  in  by  the 
Mississippi  River  Commission,  and  the  case 
is  here  as  the  result  of  the  action  of  the 
court  below  in  dismissing  the  bill  for  want 
of  equity. 

At  the  threshold  we  put  out  of  view  as 
primarily  negligible  contentions  as  to 
whether,  in  any  event,  in  view  of  the  vast 
public  interests  which  would  have  been 
detrimentally  affected,  the  injunction  prayed 
could  have  been  granted,  and  whether  the 
suit  should  not  have  been  dismissed  so  far 
as  the  Mississippi  River  Commission  was 
concerned,  on  the  groimd  that  it  was  really 
a  suit  against  the  United  States  without  its 
consent,  and  not  a  mere  action  against  in- 
dividuals acting  as  officers,  to  prevent  them 
from  violating  the  rights  of  the  complain- 
ant by  taking  his  property  without  compen- 
sation. We  say  these  contentions  are  neg- 
ligible because  underlying  them  all  is  the 
fundamental  issue  whether,  under  the  aver- 
ments of  the  bill,  there  was  any  right  to  re- 
lief whatever,  and  to  that  decisive  question 
we  come.  Its  solution  involves  deciding 
whether  the  complainant,  as  an  owner  of 
land  fronting  on  the  river,  had  a  right  to 
complain  of  the  building  of  levees  along  the 
banks  of  the  river  for  the  purpose  of  con- 
taining the  water  in  times  of  flood  within 
the  river,  and  preventing  it  from  spreading 
out  from  the  river  into  and  over  the  allu- 
vial valley  through  which  the  river  flows  to 
its  destination  in  the  Gulf,  even  although 
it  resulted  that  the  effect  of  thus  keeping 
the  water  within  the  river  was,  by  increas- 
ing its  volume,  to  so  raise  its  level  as  to 
cause  it  to  overflow  the  complainant's  lana. 

While  we  are  of  the  opinion  that  in  sub- 
stance a  negative  answer  to  the  proposition 
must  follow  from  applying  to  this  case  the 
doctrines  which  were  upheld  in  Jackson  v. 
United  States,  230  U.  S.  1,  67  L.  ed.  1363, 
33  Sup.  Ct.  Rep.  1011,  and  Hughes  v.  United 
States,  230  U.  S.  p.  24,  67  L.  ed.  1374,  46 
L.R.A.(N.S.)  624,  33  Sup.  Ct.  Rep.  1019,  as 
the  unsoundness  of  the  distinctions  at- 
tempted in  the  argument  to  be  drawn  be- 
tween those  cases  and  this,  [363] 
and  the  decisive  application  of  those 
cases  to  this,  will  be  more  readily 
appreciated  1^  a  recurrence  to  the  legal 

141  U.  8. 


1916. 


CUBBINS  T.  MISSISSIPPI  RIVER  OOM. 


363-365 


principles  by  which  the  controversy  is 
to  be  governed,  we  address  ourselves 
to  that  subject,  looking  at  it  in  a  twofold 
aspect:  First,  with  reference  to  the  rights 
and  obligations  of  the  landowners  and  the 
power  of  the  state  to  deal  with  the  subject; 
and  second,  with  reference  to  the  power  of 
United  States  to  erect  levees  to  confine  the 
water  for  the  purpose  of  improving  naviga- 
tion, as  superimposed  on  the  right  of  the 
landowners  or  that  of  the  state  authorities 
to  construct  such  levees,  if  such  right  ob- 
tains, and  if  not,  as  independently  existing 
in  virtue  of  the  dominant  power  to  improve 
navigation  vested  in  Congress  under  the 
Constitution. 

1.  Without  seeking  to  state  or  embrace 
the  whole  field  of  the  Roman  law  concerning 
the  flow  of  water,  whether  surface  or  sub- 
terranean, or  to  trace  the  general  differences 
between  that  law,  if  any,  as  it  existed  in  the 
ancient    law    of   the   continent   of   Europe, 
whether  customary  or  written,  or  as  it  pre- 
vailed in  France  prior  to,  and  now  exists  in, 
the  Code  Napoleon,  one  thing  may  be  taken 
as  beyond  dispute,  that  not  only  under  the 
Roman  law,  but  under  all  the  others,  the 
free   flow   of   water   in   rivers   was   secured 
from  undue  interruption,  and  the  respec- 
tive riparian  proprietors,  in  consequence  of 
their  right  to  enjoy  the  same,  were  protected 
from  undue  interference  or  burden  created 
by  obstructions  to  the  flow,  by  deflections 
in  its  course,  or  any  other  act  limiting  the 
right  to  enjoy  the  flow,  or  causing  addition- 
al burdens  by  changing  it.    But  while  this 
was  universally  true,  a  limitation  to  the 
rule    was    also    universally    recognized    by 
which  individuals,  in  case  of  accidental  or 
«ztraordinary  floods,  were  entitled  to  erect 
such  works  as  would  protect  them  from  the 
consequences  of  the  flood  by  restraining  the 
came,  and  that  no  other  riparian  owner  was 
entitled  to  complain  of  such  action  upon  the 
ground  of  injury  inflicted  thereby,  because 
all,  as  tl\e  result  of  the  [364]  accidental 
and  extraordinary  condition,  were  entitled 
to  the  enjoyment  of  the  common  right  to 
construct  works  for  their  own  protection. 

Demolombe  after  commenting  upon  article 
640  of  the  Code  Napoleon  generally  dealing 
with  the  servitudes  arising  from  the  flow  of 
water,  and  pointing  out  that,  under  the 
Roman  law  as  well  as  under  the  ancient 
French  law  and  the  Code  Napoleon,  it  was 
the  duty  of  proprietors  whose  lands  bor- 
dered upon  or  were  traversed  by  rivers  to 
permit  the  water  of  such  rivers  to  flow 
their  natural  course  unimpeded,  and  quot- 
ing the  Roman  law,  fluminis  Haturalem  cur- 
ium non  avertere  (L.  1,  Cod.  de  Alluvioni- 
bus),  additionally  states  that  under  both  the 
Roman  and  ancient  law  and  under  the 
Code  Napoleon  such  proprietors  were  bound 
40  li.  ed. 


"to  undertake  to  do  no  work  the  result  of 
which  would  be  to  change  the  direction  of 
the  stream  or  enlarge  its  bed,  or  to  injure 
in  any  manner  other  proprietors  whose  lands 
border  upon  or  are  traversed  by  the  stream" 
(Demolombe,  vol.  11,  No.  30,  p.  36).     But 
the  author  at  once  proceeds  to  add  that  the 
principles  thus  stated  in  no  way  serve  to 
prevent  or  to  limit  the  right  of  proprietors 
whose  lands  border  on  or  ate  traversed  by 
rivers  "from  guarantying  themselves  against 
damage    by    defensive    works,    constructed 
either  upon  the  border  of  the  rivers  or  in 
the  interior  of  their  property,  against  either 
the  permanent  and  insensible  action  of  the 
rivers  or  streams,  or  particularly  against 
the  damage  caused  by  the  accidental  or  ex- 
traordinary overflow  of  their  banks;  Ripam 
9uam  adversua  rapidi  amnU  impetum  munire 
prohibitum  non  est  (L.  1,  Cod.  de  Alluv.)." 
And  proceeding,  the  author  states  that  this 
right  of  the  proprietors  undoubtedly  exists 
"even  when  tiie  effect  of  the  dikes  or  other 
works  done  will  be,  as  is  nearly  always  the 
case,  to  render  the  waters  of  the  river  more 
hostile  and  damaging  to  other  properties,  the 
owners  of  which  would  have  no  cause  of  com- 
plaint because  each  one  is  entitled  to  do  the 
same  in  his  own  behalf,  [365]  as  the  right 
of  preservation  and  of  legitimate  defense-  is 
reciprocal,  since  it  is  impossible  to  conceive 
that  the  law  would  impose  upon  the  pro- 
prietors bordering  upon  streams  an  obliga- 
tion to  suffer  their  property  to  be  devoured 
[by  accidental  or  extraordinary  overflows] 
without  the  power  on  their  part  to  do  any- 
thing to  protect  themselves  against  the  dis- 
aster."    Proceeding  to  elucidate  and  state 
the  limitations  by  which  the  right  thus  uni- 
versally recognized  is  safeguarded,  the  au- 
thor says:     "It  is  necessary,  however,  that 
the    works   constructed    [for   the   purposes 
stated]-  do  not  encroach  upon  the  natural 
bed  of  the  water  courses,  that  they  should  be 
of  course  constructed  in  conformity  to  the 
police  regulations,  if  any  exist,  and  finally, 
tiiat  they  are  in  fact  constructed  by  those 
who  build  them  for  the  defense  of  their  own    ' 
property,  because  constructions  would  not  be 
tolerated  which  had  been  erected  by  a  pro- 
prietor upon  his  own  land  without  any  ne- 
cessity whatever  for  his  own  protection,  but 
with  the  only  and  disloyal  purpose  of  in- 
juring the  property  of  others."    Demolombe 
further  states:     "What  I  have  just  said  of 
streams  and  rivers  is  equally  applicable  to 
accidental    torrents   of   water,   which,    like 
avalanches,     may     sometimes     precipitate 
themselves  upon  certain  properties;     Such 
a  case  is  likewise  one  of  vis  major,  against 
which  each  one  has  a  right,  by  the  natural 
law,  on  his  own  behalf  to  sedc  to  protect 
himself  as  best  he  may, — a  right  which,  as 
well  said  by  the  court  of  Aix,  is  like  that 

1047 


SIUMIM                    8UPBKME  COURT  OF  TUU  UNITED  STATES.              OOE.  Tom, 

which  obUlUB  to  reiist  the  incursion  of  >i  to  cause  it  to  ftbrogftta  the  rule  itadi.  But 
enemy,  without  being  preoccupied  u  U  into  these  dlfferencea  Mid  eontruietie*  it  •• 
what  mif  be  the  result  or  the  wrong  euf  not  at  all  neceuary  to  enter,  ainee  there  it 
fered  by  a  neighbor  who  may  not  have  ha<!  no  decided  caee,  whatever  may  be  the  dif- 
tbe  toreaight  to  aucceulutly  avoid  the  dia  ference  aa  to  the  application  of  tba  linita- 
aoter."  The  author  then  proceede:  "Thesi  tion,  holding  that  it  doee  not  eiiet,  and 
principlea,  which  are  lustained  both  by  rea  when  in  (act  the  very  atatement  of  the  g«- 
son  and  by  eonccptiona  of  equity,  have  beev  eral  rule  requiree  it  to  be  determined  whcth- 
(or  all  time  recognised  both  in  the  Romai  er  that  rule  aa  correctly  atated  would  In- 
law and  In  our  ancient  French  Juriiprudence  dude  aituatione  which  the  limitation,  if 
They  are  to-day  aupported  by  the  nnaul'  recognized,  would  exclude.  We  place  in  the 
moiia  accord  of  the  decided  caiea  and  of  tht  margin  a  few  of  the  many  adjudged  caaea 
opinions  of  authore.  (Comp.  L.  Z,  [366]  |  from  which  the  eituation  juat  stated  will 
&,  ff.  de  aqua  el  aqua;  L.  unic,  ff.  de  ripa  be  made  manifeat.i 

munienda;  L.  1,  ff.  ne  quid  >«  flum.  fubl.;  Were  the  overflowa  In  thia  eaae  accidental 

Coepolla,  tract.     2,  cap.   XXXVUI.   n*   2;  and  extraordinary!  is,  then,  the  proposition 

Troneon,  but  I'art.  22S  de  la  cont.  de  Paris;  to  which  the  case  reduces  itaelt.     That  tha 

Henrys,  liv.  IV.,  title  II.,  quaest.  73  Domat,  volume  of  water  from   the  vast  watershed 

Loia  civilee.  liv.   II.,  title  VIII.,, sec.   III.,  which    the    MissisaippI    river    drains,    and 

n"  B;   Air,   19  Mai,  1813,  Raousaet,  Sirey,  which,  by  meana  of  percolation  and  tribu- 

1814,  11.,  9fc  Duranton,  t.  V.,  n*  162:  Par-  taries,  reaches  that  river,  ia  suaeeptible  now 

dessuB,  t.  I,  n'  92;  Qamier,  t.  III.,  n*  677;  and     again     of     being     ao     aimultaneonaly 

Daviel.  t.  I.,  no*  384-386,  et  t.  II.,  n"  607,  drained   off   from    the    waterahed    into  ths 

698;  Tauliei,  t.  H.,  p.  361.)  river,    and   thus   ao   vastly   Increaaing   the 

See  Mailhot  v.  Pugh,  30  La.  Ann.  1SS9,  amount   of   water    to    be   carried   off    in  a 

where  some  of  the  authors  referred  to  by  given  time  as  to  cause  the  overflow  of  the 

Demolombe  and  others  are  quoted,  and  one  valley    which    the   river   traverses,    and   to 

or  more  of  the  adjudged  French   cases  en-  thereby    endanger    the    enormous    interests 

forcing  the  limitation  are  atated  and  com-  concerned,  is  too  well  known  to  require  any- 

mented  upon.  thing  but  statement.     But  that  the  poasi- 

That  the  general  right  to  an  unrestrained  bllitiea  of  auch  a  result  do  not,  when  such 
flow  of  tivera  and  streams,  and  the  duty  overflows  occur,  cause  them  to  be  not  acei- 
not  to  unduly  deflect  or  change  the  same  by  dental,  is,  to  say  the  least,  perauaaivel;  es- 
works  constmcted  tor  Individual  benefit,  as  tablished  by  the  ruling  in  Viterbo  v.  Fried- 
^alified  by  the  limitation  aa  to  accidenUl  lander,  ISO  U.  S.  TOT,  30  L.  ed.  776,  7  Sap. 
and  extraordinary  floods  which  prevailed  in  Ct.  Rep.  SS2.  And  leaving  aside  this  view, 
Some  and  on  the  Continent,  and  which  to-  it  Is  obvions  from  the  aituation  and  the 
day  govern  in  Prance,  as  stated  by  DemO'  causes  which.  In  the  nature  of  things,  may 
lomlie,  also  obtained  in  Scotland,  was  recog-  accidentally  bring  about  the  emptying  into 
nixed  in  1741,  in  the  case  of  Farquharson  the  river  at  one  and  the  aame  time  of  the 
V.  Farquharson,  Morison's  Diet.  12,779.  volumes  of  water  from  all  the  vait  sources 
And  the  character  of  the  limitation  of  the  of  supply  which  drain  the  expanaive  water- 
rale  is  well  Illustrated  by  Menzies  v.  Bread-  shed  [368]  into  the  river,  in  the  abaenoe  of 
albanc,  3  Bligh,  N.  R.  414  (H.  L.},  where  which  accidental  unison  there  could  be  no 
it  was  held  that  it  did  not  apply  to  a  case  flood,  that  the  accidental  character  of  the 
wliere  a  structure  was  erected  in  the  eatab-  unity  of  the  conditions  upon  which  the  flood 
lished  high-water  channel  of  a  atream.  It  depends  serves  to  affix  that  character  to  the 
ia  apparent  also  from  the  opinions  id  Nield  result, — the  flood  itself.  But  saaiuning.  as 
v.  London  &  N.  W.  S.  Co.  L.  R.  10  Excb.  we  think  it  must  be  aasumed,  that  the  words 
4,  44  L.  J.  Exch.  N.  S.  16,  23  Week-  Rep-  "accidental"  and  "extraordinary"  are  to  be 
60,  23  Eng.  Rul.  Cas.  766,  and  the  state-  taken  as  relating  to  the  river, — that  is,  i* 
ment  found  In  Coulson  on  the  Law  of  alone  embracing  conditions  not  usually  tbert 
Waters,  3d.  ed.  pagea  177  et  seq.,  that  the  occurring,  and  not  ordinary  to  the  stream  ia 
limitation  as  to  accidental  and  extraordi-  its  usual  condition,  having  r^^rd  to  the 
nary  overflows  likewise  exists  in  England,       . 

In  this  country  it  is  also  certain,  with-  1  Bur  well  v.  Hobaon,  12  Gratt.  322,  (£ 
out  going  into  a  review  of  decided  cases,  Am.  Dec.  247;  Cairo,  V.  A  Q.  H.  Co.  v.  Bre- 
that  the  limitation  is  recognized,  although  voort,  25  L.RJ..  627,  62  Fed.  120;  Craw- 
It  is  true  to  say  that  much  contrariety  and  J?."i  "  Bambo,  44  Ohio  St.  27B.  7  N.  E.  4»! 
«mfii«lon  PTUt  in  the  adiudirpd  na»-a  as  to  0  Connell  v.  Eaat  Tennessee,  V.  A  G.  R.  Oo. 
confusion  exi»t  in  Uie  adjudged  eases  as  to 

when  .t  IS  applicable^  some  cases  extending  ^48,  :3  S.  E-  489;  Taylor  v.  Fickaa,  64  M. 

the  rule  M  far  as  to  virtually  render  the  jq7_  31  ^m.   Rep.   114;    BhelbyvUle  A  B. 

limitation  inoperative,  others  extending  the  Turnp.  Co.  v.  Green,  99  Ind.  206;   Uailhot 

(367]    limitation    to  such  a  d«^[r«e  as  really  v.  Fugh,  30  La.  Ann.  13GB. 

1048  141  U.  S. 


l*Jlu. 


CUBBIN8  T.  MISSISSIPPI  BiVER  COM. 


86S-370 


flow   through  its  natural  bed,  whether   in 
high  or  low  water, — ^that  view  would  be  here 
irrelevant,  since  there  is  no  suggestion  of 
any  bed  of  the  river  in  high  or  low  water 
except  the  space  between  the  natural  banks 
along  which  the  levees  were  built,  unless 
the  whole  valley  be  considered  as  such  bed. 
Indeed,  irom  the  face  of  the  bill  it  is  ap- 
parent that  the  rights  relied  upon  were  as- 
sumed to  exist  upon  the  theory  that  the 
valley  through  which  the  river  travels,  in 
all   its  length  and  vast  expanse,  with  its 
great  population,  its  farms,  its  villages,  its 
towns,  its  cities,  its  schools,  its  colleges,  its 
universities,  its  manufactories,  its  network 
of  railroads, — some  of  them  transcontinen- 
tal,— are  virtually  to  be  considered  from  a 
legal  point  of  view  as  constituting  merely 
the  high-water  bed  of  the  river,  and  there- 
fore subject,  without  any  power  to  protect, 
to  be  submitted  to  the  destruction  resulting 
from  the  overflow  by  the  river  of  its  natural 
banks.     In  fact,  the  nature  of  the  assump- 
tion  upon   which   the   argument    rests,    is 
shown  by  the  contention  that  the  building 
of  the  levees  under  the  circumstances  dis- 
closed was  a  work,  not  of  preservation,  but 
of  reclamation;  that  is,  a  work  not  to  keep 
the  water  within  the  bed  of  the  river,  for 
the  purpose  of  preventing  destruction  to  the 
valley  lying  beyond  its  bed  and  banks,  but 
to  reclaim  all  the  vast  area  of  the  valley 
from  the  peril  to  which  it  was  subjected  by 
being  situated  in  the  high -water  bed  of  the 
river.    If  it  were  necessary  to  say  anything 
more  to  demonstrate  the  unsoundness  of  this 
view,  [360]  it  would  suffice  to  point  out  that 
the  assumption  is  wholly  irreconcilable  with 
the  settlement  and  development  of  the  valley 
of  the  river,  that  it  is  at  war  with  the 
action  of  all  the  state  governments  having 
authority  over  the  territory,  and  is  a  com- 
plete denial  of  the  legislative  reasons  which 
necessarily  were  involved  in  the  action  of 
Ck>ngress    creating    the    Mississippi    River 
Commission,  and  appropriating  millions  of 
dollars  to  improve  the  river  by  building 
levees  along  the  banks  in  order  to  conflne  the 
waters  of  the  river  within  its  natural  banks, 
and,  by  increasing  the  volume  of  water,  to 
improve  the  navigable  capacity  of  the  river. 
2.  Although,    in   view   of   the   conclusion 
just  stated,  it  is  unnecessary  to  refer  to  the 
power  of  Congress  to  build  the  levees  under 
the   paramount  authority  vested   in   it  to 
improve  the  navigation  of  the  river,  we  can- 
not fail  to  point  out  the  complete  demon- 
stration which   that  power   affords   of   all 
want  of  legal  responsibility  to  the  complain- 
ant for  the  building  of  the  levees  complained 
of.    In  this  connection  it  is  to  be  observed 
that  the  complete  application  of  this  power 
•0  li.  ed. 


is,  in  the  reason  of  things,  admitted  by  the 
erroneous  assumption  upon  which  alone 
the  arguments  proceed  in  seeking  to  avoid 
the  effect  of  the  well-defined  limitation  as  to 
accidental  and  extraordinary  floods;  that 
is,  the  erroneous  contention  as  to  the  high- 
water  bed  of  the  river,  which  we  have  dis- 
posed of.  We  say  this,  since  it  is  apparent 
that  if  the  property  in  the  valley  were  to 
be  treated  as  in  the  bed  of  the  river,  that 
would  be  true  also  of  the  property  of  the 
complainant,  hence,  causing  it  to  come  to 
pass  that,  as  to  such  property,  so  situated, 
there  would  be  no  possible  lawful  ground 
of  complaint  to  arise  from  the  action  of 
Congress  in  exerting  its  lawful  power  over 
the  bed  of  the  river  for  the  improvement  of 
navigation. 

These  conclusions  dispose  of  the  case  with- 
out the  necessity  of  recurring,  as  we  proposed 
at  the  outset  to  do,  [370]  to  the  rulings  in 
the  Jackson  and  Hughes  Case,  but,  in  the 
light  of  the  principles  we  have  stated,  we 
direct  attention  to  the  fact  that  the  attempt 
to  distinguish  the  Jackson  Case  upon  the 
ground  that  relief  was  there  denied  because 
the  proprietor  on  one  side  of  the  river,  who 
complained  of  the  increase  of  the  flood  level 
and  injury  to  his  land  from  the  levees  erect- 
ed on  the  other  side,  or  from  the  levee  sys- 
tem as  a  whole,  had  himself  erected  a  levee 
to  protect  his  property,  and  therefore  was 
estopped,  is  without  foundation.    It  is  plain 
when   the   context  of   the  opinion    in   the 
Jackson  Case  is  considered,  that  the  denial 
of  the  right  to  relief  in  that  case  was  rested 
not  upon  the  conception  that  a  right  exist- 
ing on  one  side  of  the  river  was  destroyed 
by  estoppel,  and  a  right  not  existing  on  the 
other  was  conferred  by  the  same  principle, 
bu^  upon  the  broad  ground  that  the  rights 
of  both  owners  on  either  side  embraced  the 
authority,  without  giving  rise  to  legal  in- 
jury  to   the  other,   to  protect   themselves 
from  the  harm  to  result  from  the  accidental 
and  extraordinary  floods  occurring  in  the 
river,  by  building  levees,  if  they  so  desired. 
Additionally,  when  the  principle  laid  down 
in  the  Jackson  Case  is  illustrated  by  the 
ruling  which  was*  made  in  the  Hughes  Case, 
it   becomes   apparent    that   the   contention 
here  urged  as  to  the  identity  between  the 
great  valley  and  the  flood  bed  of  the  river 
was  adversely  disposed  of,  since  under  no 
view  could  the  ruling  in  the  Hughes  Case 
have  been  made  except  upon  the  theory  that 
the  bank  of  the  river  was  where   it  was 
found,  and  did  not  extend  over  a  vast  and 
imaginary  area. 
Affirmed. 

Mr.  Justice  Pitnej  concurs  in  the  result. 

104f 


871 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cot.  Tbem, 


[371]  ATCHISON,  TOPEKA,  &  SANTA 
FE  RAILWAY  COMPANY,  Plff.  in  Err., 

V. 

J.  R.  HAROLD. 

(See  S.  C.  Reporter's  ed.  871-379.) 

Commerce  —  local  transportation  as 
part  of  interstate  shipment  —  con- 
tinuous movement. 

1.  A  carload  of  grain  originally 
shipped  from  Yanka,  Nebraska,  consigned 
to  Topeka,  Kansas,  to  tlie  order  of  the  con- 
signors, with  a  direction  to  notify,  "care  of 
Santa  Fe  for  shipment,"  a  grain  company 
residing  and  doing  business  at  Kansas  City, 
Missouri,  to  whidi  the  bill  of  lading  was 
indorsed  with  draft  for  the  purchase  price 
attached,  must  be  deemed  to  have  moved 
in  a  continuous  interstate  commerce  ship- 
ment from  the  date  of  its  departure  from 
Yanka  to  the  termination  of  the  transit 
over  the  Santa  Fe  Railroad  from  Topeka, 
Kansas,  to  Elk  Falls,  Kansas,  under  an  ex- 
chuige  bill  of  lading  which  the  grain  com- 
pany had  obtained  from  the  agent  of  the 
Santa  Fe  at  Kansas  City,  consigning  the 
identical  car  then  still  in  transit  to  their 
own  order  at  Elk  Falls,  and,  therefore,  the 
delivery  of  tiie  car  to  the  Santa  Fe  at  To- 
peka for  further  movement  was  not  a  new 
and  distinct  shipment  in  intrastate  com- 
merce. 

[For  other  cases,  see  Commerce,  I.  b,  in  Digest 
Sup.  Ct.  1908.] 

Error  to  state  court  —  decision  of  Fed* 
eral  question. 
2.  A  holding  that  facts  which  were 
otherwise  pertinent  and  controlling  in  a 
suit  against  a  carrier  for  delay  in  the  de- 
livery of  an  interstate  shipment,  in  which 
the  carrier  relied  upon  certain  conditions  in 
the  interstate  bill  of  lading  as  a  defense. 

Note. — On  the  general  subject  of  writs  of 
error  from  the  United  titates  Supreme 
Court  to  state  courts — see  notes  to  Martin 
Y.  Hunter,  4  L.  ed.  U.  S.  07;  Hamblin  v. 
Western  Land  Co.  37  L.  ed.  U.  S.  267;  Re 
Buchanan,  39  L.  ed.  U.  S.  884;  and  Kipley 
v.  Illinois,  42  L.  ed.  U.  S.  098. 

On  what  adjudications  of  state  courts 
can  be  brought  up  for  review  in  the  Su- 
preme Court  of  the  United  States  by  writ 
of  error  to  those  courts — see  note  to  Apex 
Transp.  Co.  y.  Garbade,  62  L.R.A.  513. 

On  how  and  when  qu^tions  must  be 
raised  and  decided  in  a  state  court  in  order 
to  make  a  case  for  a  writ  of  error  from  the 
Supreme  Court  of  the  United  States — see 
note  to  Mutual  L.  Ins.  Co.  ▼.  McGrew,  63 
Ii.RA^  33. 

As  to  local  transportation  of  goods  as 
part  of  interstate  or  foreign  shipment— see 
notes  to  Missouri  P.  R.  Co.  v.  Sherwood  T. 
&  Co.  17  L.R.A.  643,  and  Gulf,  C.  &  S.  F.  R. 
Co.  Y.  Texas,  61  L.  ed.  U.  S.  540. 

As  to  when  the  transit  of  goods  com- 
menced in  another  state  may  be  deemed  to 
have  been  terminated  so  as  to  subject  the 
ffoods  to  local  taxation.  General  OU  Co.  t. 
Grain,  62  L.  ed.  U.  S.  755. 
1050 


must  be  put  out  of  view  because  a  bill  of 
lading  in  the  hands  of  an  innocent  pur- 
chaser is  in  fact  negotiable  paper,  givins 
ffreater  rijghts  to  him  tlian  could  be  enjoyed 
by  the  shipper  or  by  the  one  from  whom  he 
had  acquired  the  bill,  amounts  to  a  deci- 
sion of  a  Federal  question  which  will  sus- 
tain a  writ  of  error  from  the  Federal  Su- 
freme  Court  to  a  state  court. 
For  other  cases,  see  Appeal  and  Error,  1888- 
1430,  in  Digest  Sup.  Ct.  1008.) 

Commeroe  —  exclusiveness  of  Federal 
regulation  —  carrier's  liability  to  in^ 
nocent  holder  of  interstate  bill  of 
lading. 

3.  Congress  has  so  asserted,  by  the  Car 
mack  amendment  of  June  20,  1006  (34 
Stat,  at  L.  593,  chap.  3591,  Comp.  SUt. 
1913,  §  8592),  S  7,  to  the  act  of  February 
4,  1887  (24  SUt.  at  L.  379,  chap.  104), 
§  20,  its  power  over  the  subject  of  inter- 
state shipments,  the  duty  to  issue  bills  of 
lading,  and  the  responsibilities  thereunder, 
as  to  preclude  the  application  to  an  inter- 
state commerce  shipment  of  a  local  and  ex- 
ceptional rule  of  law  which  invests  the  in- 
nocent holder  of  a  bill  of  lading  with  rights 
not  available  to  the  ^pper,  such  as  the 
right  to  rely  on  erroneous  recitals  in  the 
bill  of  lading  as  to  the  date  of  the  carrier's 
receipt  of  the  goods. 

[For  other  cases,  see  Carriers,  II.  b.  In  Digest 
Sup.  Ct.  1908.J 

[No.  847.] 

Argued   May    2,    1916.     Decided   June   5» 

1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Kansas  to  review  a  judgment 
which  affirmed  a  judgment  of  the  District 
Court  of  Sedgwick  County,  in  that  state,  in 
favor  of  the  owner  of  a  bill  of  lading  in  an 
action  to  recover  from  a  carrier  for  delay 
in  delivery.  Reversed  and  remanded  for 
further  proceedings. 

See  same  case  below,  93  Kan.  456,  144 
Pac  823. 

The  facts  are  stated  in  the  opinion. 

Mr.  Alfred  A.  Scott  argued  the  cause, 
and,  with  Messrs.  Robert  Dunlap,  William 
R.  Smith,  and  Grardiner  Lathrop,  filed  s 
brief  foiw plaintiff  in  error: 

The  case  at  bar  is  analogous  to  an  action 
for  personal  injuries  brought  by  an  em- 
ployee of  a  railway  company,  where  it  is 
held  that  if  the  evidence  shows  that  the 
employee  was  engaged  in  interstate  com- 
merce at  the  time  of  his  injury,  the  Federal 
law  controls,  to  the  exclusion  of  all  state 
laws,  notwithstanding  no  reference  be  made 
to  the  Federal  law  in  the  pleadings;  that 
the  state  court  is  bound  to  take  the  same 
notice  of  a  Federal  law  as  of  a  state  law, 
and  be  goremed  accordingly. 

Toledo,  St.  L.  ft  W.  R.  (>>.  T.  Slavin,  236 

141  V.  8. 


J  016. 


ATCHISON,  T.  &  S.  F.  H.  CO.  y.  HAROLD. 


U.  S.  454,  59  L.  ad.  671,  35  Sup.  Ct.  Rep. 
306. 

This  action  is  in  its  essence  a  Federal 
case,  and  not  simply  a  case  involving  a  Fed- 
eral question, — an  important  distinction 
which  has  been  recognized  by  this  court. 

Pratt  ▼.  Paris  Gaslight  &  Coke  Co.  168 
U.  S.  255,  42  L.  ed.  458,  18  Sup.  Ct.  Rep.  62. 

The  shipment  in  question  was  interstate. 

Southern  P.  Terminal  Co.  ▼.  Interstate 
Commerce  Commission,  219  U.  S.  498,  527, 
56  L.  ed.  310,  320,  31  Sup.  Ct.  Rep.  279; 
Railroad  Commission  ▼.  Worthington,  225 
U.  S.  101,  109,  56  L.  ed.  1004,  i008,  32 
Sup.  Ct.  Rep.  653;  Texas  &  N.  0.  R.  Co. 
▼.  Sabine  Tram  Co.  227  U.  S.  Ill,  128,  129, 
67  L.  ed.  442,  449,  450,  33  Sup.  Ct.  Rep. 
229 ;  Railroad  Commission  v.  Texas  k  P.  R. 
Co.  229  U.  S.  336,  57  L.  ed.  1215,  33  Sup. 
Ct.  Rep.  837;  Baer  Bros.  Mercantile  Co.  ▼. 
Denver  Jb  R.  G.  R.  Co.  233  U.  S.  479,  58  L. 
ed.  1055,  34  Sup.  Ct.  Rep.  641;  Kirby  ▼. 
Union  P.  R.  Co.  04  Kan.  485,  L.RJL— ,  — , 
146  Pa6.  1183. 

The  shipment  being  interstate,  the  mean- 
ing and  effect  of  the  bill  of  lading  and  the 
rights  of  an  assignee  thereunder  must  be 
interpreted  and  determined  by  Federal  law, 
rules,  and  decisions,  and  not  by  the  laws, 
rules,  decisions,  or  policies  of  the  state  of 
Kansas. 

Adams  Exp.  Co.  ▼.  Croninger,  226  U.  S. 
491,  57  L.  ed.  314,  44  L.R.A.(N.S.)  257,  33 
Sup.  Ct.  Rep.  148;  Missouri,  K.  k  T.  R. 
Co.  ▼.  Harriman,  227  U.  S.  657,  57  L.  ed. 
690,  33  Sup.  Ct.  Rep.  397;  St.  Louis  k  S. 
F.  R.  Co.  ▼.  Woodruff  Mills,  105  Miss.  214, 
62  So.  171;  Southern  R.  Co.  ▼.  North  State 
Cotton  Co.  107  Miss.  71,  64  So.  965. 

Under  the  Federal  rule  the  plaintiff  in 
error  was  not  bound  by  the  recitab  in  the 
bill  of  lading,  but  could  show  the  actual 
facts  as  to  the  receipt  of  the  goods. 

Pollard  ▼.  Vinton,  105  U.  S.  7,  26  L.  ed. 
998;  Shaw  ▼.  North  Pennsylvania  R.  Co. 
(Shaw  ▼.  Merchants'  Nat.  Bank)  101  U. 
S.  557,  25  L.  ed.  892;  Friedlander  ▼.  Texas 
k  P.  R.  Co.  130  U.  S.  416,  32  L.  ed.  991,  9 
Sup.  Ct.  Rep.  570;  St.  Louis,  I.  M.  &  S.  R. 
Co.  ▼.  Knight,  122  U.  S.  79,  30  L.  ed.  1077, 
7  Sup.  Ct.  Rep.  113;  Missouri  P.  R.  Co.  ▼. 
McFadden,  154  U.  S.  155,  38  L.  ed.  944,  14 
Sup.  Ct.  Rep.  990. 

Mr.  Ray  Campbell  argued  the  cause, 
and,  with  Messrs.  W.  A.  Ayers  and  J.  Gra- 
ham Campbell,  filed  a  brief  for  defendant 
in  error: 

That  a  judgment  of  the  state  supreme 
court  may  be  reviewed  by  this  court,  it  must 
affirmatively  appear  from  the  record  that  a 
Federal  right,  privilege,  or  immunity  was 
specially  set  up  and  claimed  in  the  trial ! 
court. 
•0  Ii.  ed. 


Louisville  k  N.  R.  Co.  v.  Woodford,  234 
U.  S.  46,  58  L.  ed.  1202,  34  Sup.  Ct.  Rep. 
739;  El  Paso  k  S.  W.  R.  Co.  v.  Eichel,  226 
U.  S.  590,  57  L.  ed.  369,  33  Sup.  Ct.  Rep. 
179;  Seaboard  Air  Line  R.  Co.  v.  Duvall, 
225  U.  S.  477,  56  L.  ed.  1171,  32  Sup.  Ct. 
Rep.  790;  Cincinnati,  N.  0.  k  T.  P.  R.  Co. 
V.  Slade,  216  U.  S.  78,  64  L.  ed.  390,  30 
Sup.  Ct.  Rep.  230;  Waters  Pierce-Oil  Co. 
V.  Texas,  212  U.  S.  112,  53  L.  ed.  431,  29 
Sup.  Ct.  Rep.  227;  Louisville  k  N.  R.  Co. 
V.  Smith,  H.  k  Co.  204  U.  S.  551,  51  L.  ed. 
612,  27  Sup.  Ct.  Rep.  401;  Layton  ▼.  Mis- 
souri, 187  U.  S.  356,  47  L.  ed.  214,  23  Sup. 
Ct.  Rep.  137;  Erie  R.  Co.  ▼.  Purdy,  185  U.  S. 
148,  46  L.  ed.  847,  22  Sup.  Ct.  Rep.  605. 

Even  though  a  Federal  question  had  been 
presented  to  the  state  supreme  court  in  the 
briefs  of  the  railway  company,  which  does 
not  show  from  the  record,  the  question  was 
not  specially  set  up  or  claimed. 

Zadig  ▼.  Baldwin,  166  U.  S.  485,  41  L.  ed« 
1087,  17  Sup.  Ct.  Rep.  639. 

The  Kansas  supreme  court  held  that  by 
the  laws  and  decisions  of  Kansas,  Harold 
was  entitled  to  certain  relief  frcmi  the  rail- 
way company.  Before  such  decision  of  the 
state  court  is  reviewable  here,  it  must  af- 
firmatively appear  that,  in  according  such 
relief  to  defendant  in  error,  a  Federal  right 
was  not  only  claimed  by  plaintiff  in  error, 
but  that  it  was  necessarily  denied  it  by  the 
decision  complained  of.  It  must  be  mani- 
fest, from  the  decision  of  the  state  court, 
that  its  judgment  could  not  have  been  ren- 
dered without  denying  a  claimed  Federal 
right. 

Atlantic  Coast  Line  R.  Co.  ▼.  Glenn,  239 
U.  S.  388,  ante,  344,  36  Sup.  Ct.  Rep.  154; 
Mellon  Co.  ▼.  McCafferty,  239  U.  S.  134, 
ante,  181,  36  Sup.  Ct.  Rep.  94;  Chicago,  B. 
&  Q.  R.  Co.  ▼.  Railroad  Commission,  237 
U.  S.  220,  59  L.  ed.  926,  P.U.R.1915C,  309, 
35  Sup.  Ct.  Rep.  560;  Western  U.  Teleg. 
Co.  ▼.  Wilson,  213  U.  S.  52,  53  L.  ed.  693, 
29  Sup.  Ct.  Rep.  403;  Waters-Pierce  Oil  Co. 
▼.  Texas,  212  U.  S.  112,  53  L.  ed.  431,  29 
Sup.  Ct.  Rep.  227;  Vandalia  R.  Co.  ▼.  In- 
diana, 207  U.  S.  359,  52  L.  ed.  246,  28 
Sup.  Ct.  Rep.  130;  Arkansas  Southern  R. 
Co.  ▼.  German  Nat.  Bank,  207  U.  S.  270, 
52  L.  ed.  201,  28  Sup.  Ct.  Rep.  78;  Leathe 
▼.  Thomas,  207  U.  S.  93,  52  U  ed.  118,  28 
Sup.  Ct.  Rep.  30. 

A  Federal  question  must  be  set  up  and 
decided  by  the  state  court  of  last  resort, 
prior  to  the  filing  of  a  petition  for  rehear- 
ing, in  order  that  such  decision  may  be  re- 
viewable by  this  court. 

St.  Louis  &  S.  F.  R  Co.  v.  Shepherd,  240 
U.  S.  240,  ante,  622,  J6  Sup.  Ct.  Rep.  274; 
Louisville  4^  N.  R.  Co.  v.  Woodford,  234  U. 
S.  46,  58  L.  ed.  1202,  34  Sup.  Ct  Rep.  739 ; 
Consolidated  Turnp.  Co.  t.  Norfolk  k  0.  P. 

1051 


372-374 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  TERMy 


R.  Co.  228  U.  S.  326,  57  L.  ed.  857,  33  Sup. 
Ct.  Rep.  510;  Forbes  ▼.  State  Council,  216 
U.  8.  396,  64  L.  ed.  534,  30  Sup.  Ct.  Rep. 
295;  Waters-Pierce  Oil  Co.  v.  Texas,  212 
U.  S.  112,  53  L.  ed.  431,  29  Sup.  Ct.  Rep. 
227;  McCorquodale  ▼.  Texas,  211  U.  S.  432, 
53  L.  ed.  269,  29  Sup.  Ct  Rep.  146. 

Not  only  does  the  record  fail  to  show 
that  the  shipment  was  interstate,  but  it 
shows  conclusively  that  it  was  intrastate. 

Gulf,  C.  A  S.  F.  R,  Co.  V.  Texas,  204  U.  S. 
403,  51  L.  ed.  540,  27  Sup.  Ct.  Rep.  360; 
Southern  P.  Terminal  Co.  v.  Interstate  Com- 
merce Commission,  219  U.  S.  498,  55  L. 
ed.  310,  31  Sup.  Ct.  Rep.  279;  Railroad 
Commission  ▼.  Worthington,  225  U.  S.  101, 
56  L.  ed.  1004,  32  Sup.  Ct.  Rep.  653;  Texas 
&  N.  0.  R.  Co.  V.  Sabine  Tram  Co.  227  U. 
S.  Ill,  57  L.  ed.  442,  33  Sup.  Ct.  Rep.  229; 
Railroad  Commission  ▼.  Texas  &  P.  R.  Co. 
229  U.  S.  336,  57  L.  ed.  1215,  33  Sup.  Ct. 
Rep.  837;  Chicago,  M.  &  St.  P.  R.  Co.  ▼. 
Iowa,  233  U.  S.  334,  58  L.  ed.  988,  34  Sup. 
Ct.  Rep.  692;  Cincinnati,  N.  O.  A  T.  P.  R 
Co.  y.  Interstate  Commerce  Commission,  162 
U.  S.  184,  40  L.  ed.  935,  5  Inters.  Com.  Rep. 
391,  16  Sup.  Ct.  Rep.  700;  New  York  ex  rel. 
Pennsylvania  R.  Co.  ▼.  Knight,  192  U.  S. 
21,  48  L.  ed.  325,  24  Sup.  Ct.  Rep.  202; 
South  Covington  &  C.  Street  R.  Co.  v.  Cov- 
ington, 236  U.  S.  637,  59  L.  ed.  360,  L.R.A. 
1916F,  792,  P.U.R.1915C,  231,  35  Sup.  Ct. 
Rep.  158;  Pennsylvania  R.  Co.  v.  Mitchell 
Coal  k  Coke  Co.  238  U.  S.  251,  59  L.  ed. 
1293,  35  Sup.  Ct.  Rep.  787. 

It  was  the  common-law  duty  of  the  rail- 
way company  to  issue  a  correct  bill  of  lad- 
ing, and  concerning  such  common-law  lia- 
bility Congress  has  not  legislated. 

Eastern  R.  Co.  v.  Littlefield,  237  U.  S. 
140,  59  L.  ed.  878,  35  Sup.  Ct.  Rep.  489. 

Mr.  Chief  Justice  White  delivered  the 
opinion  of  the  court: 

We  are  of  the  opinion  that  a  motion  to 
dismiss  is  without  merit,  but  the  reasons 
which  lead  us  to  that  conclusion  will  be 
more  clearly  appreciated  after  we  have 
made  a  statement  of  the  case.  Until  that 
is  done  we  hence  postpone  the  subject. 

J.  Bell  &  Son,  having  sold  a  carload  of 
bulk  com  to  the  C.  V.  Fisher  Grain  Com- 
pany, residing  and  doing  business  at 
Kansas  City,  Missouri,  on  September  21, 
1910,  shipped  the  same  from  Yanka,  Ne< 
braska,  over  the  Union  Pacific  Railroad. 
The  bill  of  lading  identified  the  car  as  L. 
W.  No.  33,791,  containing  100,420  pounds 
of  corn,  and  the  same  was  consigned  to 
Topeka,  Kansas,  to  the  order  of  the  con- 
signors (Bell.&  Son),  with  a  direction, 
however,  in  the  bill  of  lading,  to,  ''notify 
C.  V.  Fisher  Grain  Company,  care  of  Santa 
Fe,  for  shipment."  A  drait  for  the  pur* 
1059 


chase  price  of  the  com  was  mailed  to 
Kansas  City,  Missouri,  accompanied  with 
the  bill  of  lading,  indorsed  over  to  the 
order  of  the  Fisher  Grain  Company,  and 
on  the  presentation  of  this  draft  to  the 
Grain  Company  at  Kansas  City,  Missouri, 
while  the  car  was  yet  in  transit,  it  [373] 
paid  the  same  and  became  the  possessor  and 
owner  of  the  bill  of  lading.  On  the  24th  of 
September  the  Grain  Company  surrendered 
to  an  agent  of  the  Santa  Fe  at  Kansas  City, 
Missouri,  the  Yanka  bill  of  lading  which  it 
had  thus  acquired,  and  took  in  exchange 
for  it  another  bill,  consigning  the  identical 
car  to  their  own  order  at  Elk  Falls,  Kansas, 
a  place  on  the  Santa  Fe  road,  with  a  direc- 
tion, however,  to  notify  at  Elk  Falls  the 
Nevling  Elevator  Company.  This  bill  of 
lading  was  dated  the  same  day  as  the  orig- 
inal bill  for  which  it  was  exchanged;  that 
is,  September  21st,  although  it  was  in  fact 
only  signed  and  issued  on  the  24th  of  that 
month;  and  although  on  its  face  it  treated 
the  car  as  being  at  Kansas  City,  in  reality 
the  car  was  in  transit  from  Yanka,  not  hav- 
ing yet  reached  Topeka. 

Harold,  the  defendant  in  error,  a  ^n^in 
dealer  at  Wichita,  Kansas,  who  had  sold 
on  September  16th  a  carload  of  com  to 
Shoe  &  Jackson  at  Elk  Falls,  to  be  shipped 
or  delivered  in  a  stated  number  of  days, 
bought  the  carload  of  com  described  by  the 
bill  of  lading  issued  at  Kansas  City,  and, 
paying  a  draft  for  the  purchase  price  drawn 
by  Fisher  Grain  Company,  with  the  bill  an- 
nexed, he  became  the  owner  of  the  bill,  and 
directed  that  delivery  of  the  com  be  made 
to  Shoe  &  Jackson.  The  car  from  Yanka 
had  then  not  yet  been  delivered  to  the 
Santa  Fe  at  Topeka,  having  reached  that 
point  only  on  the  28th  of  September,  on 
which  day  it  was  offered  to  the  Santa  Fe 
for  carriage  and  delivery  at  Elk  Falls. 
Finding  that  the  car  was  in  bad  order,  the 
delivery  was  declined,  and  the  car  turned 
back  to  the  Union  Pacific.  That  road,  dis- 
covering that  the  damage  was  such  that  the 
car  could  not  be  repaired  while  it  was 
loaded,  sent  it  to  an  elevator,  transferred 
the  grain  to  another  car,  S.  P.  No.  85,721, 
and  turned  that  car  over  to  the  Santa  Fe. 
The  new  car,  however,  did  not  contain  the 
exact  quantity  of  grain  originally  shipped 
from  Yanka,  as  one  of  the  defects  in  the 
old  car  was  a  leaky  door,  and  [374]  sev- 
eral hundred  pounds  of  the  com  had  been 
lost  in  transit.  The  car  was  promptly  car- 
ried by  the  Santa  Fe  to  Elk  Falls  and  offered 
for  delivery,  but  as  ihfi  period  for  the  fulfil- 
ment by  Harold  of  his  contract  with  Shoe 
k  Jackson  had  elapsed,  and  there  had  been 
a  decline  in  the  market  price  of  com,  the 
latter  refused  to  take  the  car.  Thereupoo 
this  rait  againti  the  Santa  Fe  was  oom- 

241  U.  8. 


J»15. 


ATCHISON,  T.  k  8.  F.  B.  CO.  ▼.  HAROLD. 


874-376 


menccd  by  Harold  to  recover  the  loss  which  j 
he  had  suffered  by  the  alleged  unreasonable 
delay  in  delivery  at  Elk  Falls,  consisting 
of  three  items:  first,  the  difference  between 
the  price  at  which  the  corn  had  been  con- 
tracted to  be  sold  to  Shoe  &  Jackson  and 
the  market  price  at  the  date  the  car  was 
offered  for  delivery;  second,  the  amount  of 
the  freight  paid  on  the  com  which  had  been 
lost;  and  third,  a  reasonable  attorney's  fee 
which  it  was  alleged  a  statute  of  the  state 
of  Kansas  authorized  to  be  recovered  in  case 
of  delay  of  a  carrier  in  the  delivery  of 
grain. 

In  its  defense  the  company  alleged  the 
shipment  over  the  Union  Pacific  from 
Yanka,  averred  that  the  corn  was  received 
by  it  at  Topeka  in  order  to  complete  the 
transportation  to  Elk  Falls,  and  charged 
that,  by  a  condition  of  the  bill  of  lading 
issued  at  Kansas  City,  as  the  delay  had 
been  wholly  caused  by  the  Union  Pacific, 
there  was  no  liability  on  the  part  of  the 
Santa  Fe,  and  that,  besides,  that  company 
was  not  liable,  because  of  a  failure  to  give 
a  notice  of  claim  in  compliance  with  a  con- 
dition which  was  also  contained  in  the 
Kansas  City  bill  of  lading.  Tliere  was 
judgment  in  the  trial  court  for  the  plaintiff, 
and  the  judgment  of  the  court  below,  aflirm- 
ing  such  action,  is  the  one  now  under  re- 
view. 

Tlie  court,  after  referring  to  the  bill  of 
lading  sued  on  (the  one  issued  at  Kansas 
City),  and  after  stating  that  "the  jshipment 
intended  to  be  described  in  the  bill  of  lad- 
ing originated  at  Yanka,  Nebraska,  on  the 
Union  Pacific  Railway,"  proceeded  to  state 
the  facts  which  we  have  recapitulated,  and 
which  had  been  admitted  in  [375]  evidence 
without  objection.  In  substance  conceding 
that  if  the  facts  stated  were  made  the  test 
of  the  rights  of  the  parties  the  judgment 
under  review  was  wrong,  because  there  had 
been,  as  a  matter  of  fact,  no  unreasonable 
delay  in  delivering  the  corn  by  the  Santa  Fe, 
it  was  held  that  the  judgment  rendered  was 
right,  since  the  plaintiff  below,  as  the  pur- 
chaser of  a  bill  of  lading  for  value,  had 
a  right  to  rely  upon  the  face  of  the  bill,  to 
treat  the  com  as  having  been  received  by 
the  carrier  at  Kansas  City  on  the  date  the 
bill  of  lading  was  issued,  and  therefore  to 
recover  for  the  unreasonable  delay  in  deliv- 
ery which  necessarily  would  result  from  ex- 
cluding from  view  the  facts  concerning  the 
movement  of  the  com  from  Yanka,  Ne- 
braska, and  the  date  of  its  delivery  at  To- 
peka to  the  Santa  Fe.  The  essence  of  the 
opinion  was  aptly  summed  up  in  the  qrlla- 
boa  which  preceded  it>  drawn  by  the  court, 
which  is  as  follows: 

"1.  The  rule  which  invests  the  innocent 
holder  of  a  bill  of  lading  with  rights  not 
•0  li.  ed. 


available  to  the  shipper,  declared  in  Wichi- 
ta Sav.  Bank  v.  Atchison.  T.  &  S.  F.  R.  Co. 
20  Kan.  519;  Missouri,  K.  4^  T.  R.  Co.  v. 
Hutchings,  78  Kan.  758,  99  Pac.  230;  ana 
Hutchings  v.  Missouri,  K.  &  T.  R.  Co.  (Sca- 
ly V.  Missouri,  K.  &  T.  R.  Co.)  84  Bum.  479, 
41  L.R.A(N.S.)  500,  114  Pac.  1079,  is  fol- 
lowed in  a  case  where  tlie  plaintiff  pur- 
chased com  described  in  a  bill  of  lading, 
and  paid  tlie  shipper's  draft  attached  to  the 
bill  in  the  usual  course  of  business."  [93 
Kan.  456,  144  Pac.  823.] 

In  addition,  the  allowance  of'  the  attor- 
ney's fees  under  the  Kansas  statute  was 
upheld  on  the  ground  that  the  statute  was 
within  the  legitimate  police  power  of  the 
state  to  enact,  and  not  repugnant  to  the 
state  or  Federal  Constitution. 

The  motion  to  dismiss,  referred  to  at  the 
outset,  is  based  on  the  ground  that  the 
action  of  the  court  involved  no  question  of 
interstate,  but  purely  one  of  intrastate, 
commerce.  But  this  disregards  the  fact 
that  the  bill  of  lading  which  was  sued  upon 
was  an  interstate  commerce  bill  [376]  cov- 
ering a  shipment  from  Kansas  City,  Mis- 
souri, to  Elk  Falls,  Kansas.  True,  it  is  urged 
that  that  bill  of  lading  is  not  the  test  of 
whether  there  is  jurisdiction,  because  it  was 
shown  that  in  reality  the  shipment  was  an 
intrastate  one  from  Topeka,  Kansas,  to  Elk 
Falls  in  that  state.  But  this  assumes  tliat 
although  the  judgment  rests  upon  the  con- 
ception that  the  previous  movement  of  the 
com  from  Yanka  could  not  be  considered  as 
against  the  plaintiff  because  he  was  an  inno- 
cent third  holder  of  the  bill  of  lading  issued 
at  Kansas  City,  nevertheless,  for  the  pur- 
pose of  determining  whether  jurisdiction 
exists,  the  facts  as  to  the  shipment  from 
Yanka  must  be  treated  as  relevant.  Leav- 
ing aside,  however,  this  contradiction,  and 
cbnsidering  the  facts  as  to  the  movement 
of  the  grain  from  its  inception,  we  are  of 
opinion  that,  from  that  point  of  view,  it 
was  clearly  established  that  the  grain 
moved  in  a  continuous  interstate  commerce 
shipment  from  the  date  of  its  departure 
from  Yanka  to  the  termination  of  the  tran- 
sit at  Elk  Falls,  and  that  the  delivery  of 
the  car  to  the  Santa  Fe  at  Topeka  for 
further  movement  was  therefore  not  a  new 
and  distinct  shipment  in  intrastate  com- 
merce. We  reach  this  conclusion  in  view 
of  the  place  of  business  of  the  Fisher  Grain 
Company  (Kansas  City,  Missouri),  of  the 
fact  that  there  was  no  person  at  Topeka  to 
whom  the  grain  was  consigned,  of  the  in- 
dorsement of  the  bill  of  lading  to  the  Fisher 
Grain  Company,  and  the  annexing  to  it  of 
a  draft  drawn  on  that  company  at  Kansas 
City  for  the  purchase  price,  and  because  the 
order  on  the  face  of  the  bill  of  lading  to 
"notify  0.  V.  Fisher  Grain  Company,  care 

105S 


376-379 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Tbbm, 


of  Santa  Fe  for  shipment"  made  it  appar- 
ent that  it  was  not  contemplated  that  the 
interstate  shipment  should  terminate  at  To- 
peka,  but  that  the  car  should  move  on  as 
the  result  of  such  direction  as  might  b^ 
given  while  it  was  in  transit  by  the  Fisher 
Grain  Company  at  Kansas  City,  Missouri. 

But,  further,  it  is  said  that  granting 
there  was  a  Federal  [377]  question,  as  it 
was  not  asserted  or  relied  upon  until  appli- 
cation for  a  rehearing,  it  is  not  open  for  con- 
sideration. The  answer,  however,  is  that  the 
court  considered  and  disposed  of  the  ques- 
tion by  holding  that  the  facts  which  were 
otherwise  pertinent  and  controlling  must  be 
put  out  of  view  because  the  interstate  com- 
merce bill  of  lading  in  the  hands  of  Harold, 
the  purchaser,  was  in  fact  negotiable  paper, 
giving  greater  rights  to  such  purchaser 
than  could  be  enjoyed  by  the  shipper,  or  by 
the  one  from  whom  he-  had  acquired  the 
bill.  It  is  obvious,  therefore,  that  this  was 
a  decision  of  a  Federal  question  which  we 
have  power  to  dispose  of  as  such,  and  we 
come  to  consider  it. 

That  the  local  rule  applied  by  the  court 
below  was  in  direct  conflict  with  the  gen- 
eral conunercial  law  on  the  subject,  as  re- 
peatedly settled  by  this  court,  is  plain. 
Shaw  V.  North  Pennsylvania  R,  Co.  (Shaw 
v.  Merchants'  Nat.  Bank)  101  U.  S.  557,  25 
L.  ed.  892;  Pollard  v.  Vinton,  105  U.  S.  7, 
26  L.  ed.  998;  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Knight,  122  U.  S.  79,  30  L.  ed.  1077,  7  Sup. 
Ct.  Rep.  1132;  Friedlander  v.  Texas  &  P. 
R.  Co.  130  U.  S.  416,  32  L.  ed.  991,  9  Sup. 
Ct.  Rep.  570;  Missouri  P.  R.  Co.  t.  Mc- 
Fadden,  154  U.  S.  155,  38  L.  ed.  944,  14 
Sup.  Ct.  Rep.  990;  The  Carlos  F.  Roses,  177 
U.  S.  655,  665,  44  L.  ed.  929,  933,  20  Sup. 
Ct.  Rep.  803. 

Nothing  could  better  point  out  the  ir- 
reconcilable conflict  between  the  local  doc- 
trine applied  by  the  court  below  and  the 
general  law,  as  illustrated  in  the  cases  cited, 
than  does  the  following  statement  in  the 
opinion  in  the  Roses  Case,  last  cited  (p. 
665): 
'  "A  pledgee  to  whom  a  bill  of  lading  is 
given  as  security  gets  the  legal  title  to  the 
goods  and  the  right  of  possession  only  if 
such  is  the  intention  of  the  parties,  and 
that  intention  is  open  to  explanation.  In- 
quiry into  the  transaction  in  which  the  bill 
originated  is  not  precluded  because  it  came 
into  the  hands  of  persons  who  may  have 
innocently  paid  value  for  it." 

Whether,  in  the  absence  of  legislation  by 
Congress,  the  attributing  to  an  interstate 
bill  of  lading  of  the  exceptional  and  local 
characteristic  applied  by  the  court  below, 
in  [378]  conflict  with  the  general  commer- 
cial rule,  constituted  a  direct  burden  on  in- 
terstate commerce,  and  was  therefore  void, 
1054 


need  not  now  be  considered.  This  is  bo  be- 
cause, irrespective  of  that  question,  and^ 
indeed,  without  stopping  to  consider  the 
general  provisions  of  the  act  to  regulate 
commerce,  it  is  not  disputable  that  what  is 
known  as  the  Carmack  amendment  to  the 
act  to  regulate  commerce  (act  of  June  29, 
1906,  chap.  3591,  §  7,  34  SUt.  at  L.  593, 
Comp.  Stat.  1013,  §  8592)  wafi  an  assertion 
of  the  power  of  Congress  over  the  subject 
of  interstate  shipments,  the  duty  to  issue 
bills  of  lading,  and  the  responsibilities  there- 
under, which,  in  the  nature  of  things,  ex- 
cluded state  action.  Adams  Exp.  Co.  v. 
Croninger,  226  U.  S.  491,  505,  506,  57 
L.  ed.  314,  319,  320,  44  L.R.A.(N.S.) 
257,  33  Sup.  Ct.  Rep.  148;  Missouri, 
K.  &  T.  R.  Co.  V.  Harriman,  227  U.  S.  657, 
671,  672,  57  L.  ed.  690,  697,  698,  33  Sup. 
Ct.  Rep.  397;  Boston  &  M.  R.  Co.  v.  Hook- 
er, 233  U.  S.  97,  110,  58  L.  ed.  868,  875, 
L.RJL  1915B,  450,  Ann.  Cas.  1915D,  593; 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Robinson,  233 
U.  S.  173,  180,  58  L.  ed.  901,  905,  34  Sup. 
Ct.  Rep.  556;  Cleveland,  &  St.  L.  R.  Co.  v. 
Dettlebach,  239  U.  S.  588,  ante,  453,  36  Sup. 
Ct.  Rep.  177;  Georgia,  F.  &  A.  R.  Co.  v. 
Blish  Mm.  Co.  241  U.  S.  190,  ante,  948,  36 
Sup.  Ct.  Rep.  541. 

Indeed,  in  the  argiunent  it  is  frankly 
conceded  that,  as  the  subject  of  a  carrier's 
liability  for  loss  or  damage  to  goods  mov- 
ing in  interstate  commerce  under  a  bill  of 
lading  is  embraced  by  the  Carmack  amend- 
ment, state  legislation  on  that  subject  has 
been  excluded.  It  is  insisted,  however,  that 
this  does  not  exclude  liability  for  error  in 
the  bill  of  lading  purporting  to  cover  an 
interstate  shipment,  because  ''Congress  has 
legislated. relative  to  the  one,  but  not  rela* 
tive  to  the  other."  But  this  ignores  the 
view  expressly  pointed  out  in  the  previous 
decisions  dealing  with  the  Carmack  amend- 
ment, that  its  prime  object  was  to  bring 
about  a  uniform  rule  of  responsibility  as 
to  interstate  commerce  and  interstate  com- 
merce bills  of  lading, — a  purpose  which 
would  be  wholly  frustrated  if  the  propo- 
sition relied  upon  were  upheld.  The  prin- 
cipal subject  of  responsibility  embraced  by 
the  act  of  Congress  carried  with  it  neces- 
sarily the  Incidents  thereto.  See  the  sub- 
ject aptly  and  clearly  illustrated  by  St.  Louis 
&  S.  [379]  F.  R.  Co.  V.  Woodruff  Mills, 
105  Miss.  214,  62  So.  171,  where  a  statute  of 
the  state  of  Mississippi,  accomplishing  the 
very  result  applied  by  the  court  below,  was 
decided  to  be  no  longer  applicable  to  inter- 
state commerce  because  of  the  taking  pos- 
session by  Congress  of  the  fleld  by  virtue 
of  the  amendment  referred  to. 

As  it  follows  from  what  we  have  said  thai 
the  court  below  erred  in  applying  the  local 
law  to  the  interstate  commerce  shipment 

241  U.  8. 


1915. 


UNITED  STATES  t.  HEMMER. 


879-881 


under  consideration,  its  judgment  must  be 
reversed  and  the  case  remanded  for  further 
proceedings  not  inconsistent  with  this  opin* 
Ion. 
And  it  is  so  ordered. 


UNITED  STATES 

LOUIS  HEMMER,  William  W.  Fletcher,  J. 
E.  Peart,  et  al. 

(See  S.  C.  Reporter's  ed.  379-387.) 

Indians  —  homesteads  —  reatriotlona  on 
mlienmtlon. 

An  Indian  who  had  made  a  home- 
stead entry  under  the  act  of  March  3,  1875 
(18  Stat,  at  L.  420,  chap.  131,  Gomp.  Stat. 
1913,  §  4611),— giving  Indians  bom  in  the 
United  States,  who  are  heads  of  families, 
or  have  arrived  at  the  age  of  twenty-one 
years,  and  have  abandoned  their  tribal  rela- 
tions, the  benefit  of  the  homestead  laws, 
provided  that  titles  acauired  thereunder 
should  be  inalienable  for  five  years  from  the 
date  of  payment, — and  had  substantially 
performed  the  conditions  entitling  him  to 
a  patent,  except  the  making  of  final  proof, 
at  the  date  of  the  passage  of  the  act  of 
July  4,  1884  (23  SUt.  at  L.  96,  chap.  180. 
Comp.  Stat.  1913,  §  4612),  is  not  affected 
by  the  provisions  of  the  latter  act  that  sueh 
Indians  as  might  then  be  located  on  the 
public  lands,  or  should  thereafter  so  locate, 
might  avail  themselves  of  the  homestead 
laws,  but  that  patents  issued  thereunder 
riiould  contain  a  twenty-five  years'  limita- 
tion upon  alienation. 

(For  other  cases,  see  Indians,  Vlll.,  In  Digest 
Bup.  Ct.  1908.] 

[No.  86.] 

Submitted  May  5,  1916.     Decided  June  5, 

1916. 

APPEAL  from  the  United  States  Circuit 
Court  of  Appeals  for  the  Eighth  Cir- 
cuit to  review  a  decree  which,  reversing  a 
decree  of  the  District  Court  for  the  Dis- 
trict of  South  Dakota,  in  favor  of  com- 
plainant in  a  suit  to  remove  clouds  on  title 
and  cancel  certain  conveyances,  and  to  re- 
move the  lien  of  a  Judgment,  remanded  the 
cause,  witli  directions  to  dismiss  the  bill. 
Affirmed. 

See  same  case  below,  123  C.  C.  A.  1949 
204  Fed.  898. 

The  facts  are  stated  in  the  opinion. 

Assistant  Attorney  General  Knaebel  sub- 
mitted the  cause  for  the  United  States. 

Mr.  liowla  Benson  submitted  the  cause 
for  Louis  Hemmer  et  aL    Mr.  Qeorge  Rioe 
was  on  the  brief. 
•0  li.  ed. 


Mr.  Justice  McKenna  delivered  the  opin- 
ion of  the  court: 

This  suit  was  brought  in  the  circuit 
court  of  the  United  States,  eighth  judicial 
circuit,  district  of  South  Dakota,  southern 
division,  by  the  United  States,  to  remove 
clouds  from  the  title  to  certain  described 
lands,  and  to  cancel  certain  instruments 
purporting  to  convey  the  lands,  and  pray- 
ing that  a  certain  judgment  against  the 
lands  be  declared  no  lien  thereon,  the 
ground  of  suit  being  that  the  conveyances 
and  the  judgment  were  obtained  in  opposi- 
tion to  the  restrictions  upon  the  alienation 
or  encumbrance  of  the  lands  imposed  by 
Congress. 

After  issue  joined  and  hearing  had  the 
district  court,  successor  of  the  circuit  court, 
entered  a  decree  in  accordance  with  the 
prayer  of  the  bilL  195  Fed.  790.  The  de- 
cree was  reversed  by  the  circuit  court  of 
appeals,  and  the  case  remanded  to  the  dis- 
trict court,  with  directions  to  dismiss  the 
bilL  123  C.  C.  A.  194,  204  Fed.  898.  This 
appeal  was  then  prosecuted. 

The  facts  are  the  following:  One  Henry 
H.  Taylor,  [381]  known  and  designated 
sometimes  as  Henry  Taylor,  is  and  was  dur- 
ing the  times  with  wMch  the  suit  is  con- 
cerned a  Sioux  Indian  of  the  full  blood,  be- 
longing to  and  a  member  of  the  Santee 
Sioux  Band  of  Indians,  and  is  not  a  mem- 
ber of  and  has  never  had  any  connection 
with  the  Winnebago  Band  of  Indians. 

On  October  7,  1878,  Taylor  entered  upon 
the  lands  as  a  homestead,  they  being  part 
of  the  public  domain,  and  subject  to  entry 
under  the  homestead  laws  of  the  United 
States  then  in  force.  He  established  and 
continued  his  residence,  and  made  satis- 
factory proof  of  all  facts  required  by  law 

On  June  6,  1890,  a  patent  was  issued  to 
him  which  recited,  among  other  things,  that 
it  was  granted  upon  the  express  condition 
that  the  title  conveyed  thereby  should  not 
be  subject  to  alienation  or  encumbrance 
either  by  voluntary  conveyance  or  by  judg- 
ment, decree,  or  order  of  any  court,  or  sub- 
ject to  taxation  of  any  character,  but  should 
remain  inalienable  and  not  subject  to  tax- 
ation for  the  period  of  twenty  years  from 
the  date  thereof,  as  provided  by  act  of 
Congress  approved  January  18,  1881,  21 
Stat,  at  L.  315,  chap.  23.  This  act  applied 
only  to  Winnebagoes. 

Taylor  continued  to  own  the  land  until 
August  8,  1908,  when  he  and  his  wife  made 
a  contract  with  J.  E.  Peart,  one  of  the 
appellees,  by  which  they  agreed  to  convey 
the  land  to  Peart  in  fee  simple  by  war- 
ranty deed  for  the  sum  of  $2,400,  certain 
land  to  be  accepted  in  payment  of  $550  of 
such  consideration.  Time  was  made  the 
essence  of  the  contract^  and  it  was  made 

1055 


881-384 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Term, 


binding  upon  the  heirs,  executors,  admin- 
istrators, and  assigns  of  the  parties. 

September  8,  1908,  Peart  assigned  the 
contract  to  William  W.  Fletcher,  also  one 
of  the  appellees  herein.  After  this  contract 
Taylor  and  wife  took  possession  of  the  land 
taken  in  part  payment  of  the  consideration, 
and  Peart  took  possession  of  the  homestead 
land  and  paid  the  consideration  in  full. 

[382]  Taylor  and  his  wife  refused  to 
convey  the  homestead  land  to  either  Peart 
or  Fletcher,  and  the  latter  instituted  suit 
against  them  to  compel  specific  performance, 
which  suit  resulted  in  a  decree  compelling 
such  performance,  and  a  deed  was  executed 
to  Fletcher  by  a  commissioner  appointed  by 
the  court. 

February  5,  1909,  Fletcher  conveyed  the 
land  by  warranty  deed  to  Louis  Hemmer, 
who,  in  April,  1909,  denied  possession  to 
Taylor,  who  attempted  to  remove  with  his 
family  back  on  the  land,  and  has  since  de- 
nied possession  to  him. 

June  10,  1909,  the  United  States  issued 
a  patent  to  Taylor  which  recited  that  he 
had  established  a  homestead  upon  the  land 
in  conformity  with  the  act  of  Congress  of 
July  4,  1884  (hereinafter  set  out),  and  that 
therefore  the  United  States,  in  considera- 
tion of  the  premises  and  in  accordance  with 
the  provisions  of  said  act  of  Congress,  did 
and  would  hold  the  land  (it  was  described) 
for  the  period  of  twenty-five  years  in  trust 
for  the  sole  use  and  benefit  of  Taylor,  or, 
in  case  of  his  decease,  of  his  widow  and 
heirs,  according  to  the  laws  of  the  state 
where '  the  land  was  located,  and  at  the 
expiration  of  that  period  would  convey  the 
same  by  patent  to  Taylor,  or  his  widow  and 
heirs,  in  fee,  discharged  of  the  trust  and 
free  of  all  charge  or  encumbrances  whatso- 
ever. It  was  declared  that  the  patent  was 
issued  in  lieu  of  one  containing  the  twenty- 
year  trust  clause  dated  June  6,  1890,  which 
had  been  canceled. 

In  1894  and  in  every  year  since,  the  coun- 
ty treasurer  of  Moody  county  (appellee 
Henderson),  its  auditor  (appellee  Hornby), 
and  board  of  county  commissioners  have 
assessed  the  land  for  taxation  and  levied 
taxes  against  it,  and  have  caused  it  to  be 
sold,  and  are  asserting  the  right  to  tax  the 
same.  The  other  appellees  assert  interest 
in  the  land  under  tax  sales. 

It  will  be  observed  that  Taylor  made  his 
preliminary  [383]  homestead  entry  October 
7, 1878,  by  virtue  of  the  provisions  of  the  act 
of  March  8,  1876,  18  Stat,  at  L.  4201,  chap. 


131,  Comp.  Stat.  1913,  §  4611.  The  act 
gave  Taylor,  as  an  Indian  having  the  quali- 
fications it  described  (that  is,  who  was  bom 
in  the  United  States,  was  twenty-one  years 
of  age,  the  head  of  a  family,  and  who  had 
abandoned  his  tribal  relations),  the  benefits 
of  the  homestead  law,  and  provided  that 
the  title  acquired  by  virtue  of  its  provisions 
should  not  be  subject  to  alienation  or  en- 
cumbrance, either  volimtarily  made  or 
through  proceedings  in  court,  and  should 
"remain  inalienable  for  the  period  of  five 
years  from  the  date  of  the  patent  issued 
therefor." 

Taylor,  however,  did  not  make  his  final 
proof  until  December  11,  1884,  when  he 
paid  the  final  fees  and  received  his  final 
receipt  and  certificate.  Prior  to  such  final 
proof  and  compliance  with  the  homestead 
laws  Congress  passed  the  act  of  July  4, 
1884,  23  Stat,  at  L.  96,  chap.  180,  Comp. 
Stat.  1913,  §  4612.  It  provided  '*that  such 
Indians  as  may  now  be  located  on  public 
lands,  or  as  may,  under  the  direction  of  the 
Secretary  of  the  Interior,  or  otherwise,  here- 
after, so  locate  may  avail  themselves  of  the 
provisions  of  the  homestead  laws  .  .  .  ; 
but  no  fees  or  commissions  shall  be  [384J 
charged  on  account  of  such  entries  or  proofs. 
All  patents  therefor  shall  be  of  the  legal  ef- 
fect and  declare  that  the  United  States  does 
and  will  hold  the  land  thus  entered  for  the 
period  of  twenty-five  years,  in  trust  for  the 
sole  use  and  benefit  of  the  Indian  by  whom 
such  entry  shall  have  been  made,  or  in  case 
of  his  decease,  of  his  widow  and  heirs  ac- 
cording to  the  laws  of  the  state  or  territory 
where  such  land  is  located,  and  that  at  the 
expiration  of  said  period  the  United  States 
will  convey  the  same  by  patent  to  said  In- 
dian, or  his  widow  and  heirs  as  aforesaid, 
in  fee,  discharged  of  said  trust  and  free  of 
all  charge  or  encumbrance  whatsoever." 

Whether  the  patent  to  Taylor  should  have 
issued  under  that  act  and  subject  to  its 
restriction  of  twenty-five  years,  or  under 
the  act  of  1875,  and  with  a  limitation  upon 
alienation  of  five  years,  is  the  controversy 
in  the  case.  The  government  contends  for 
the  act  of  1884,  and  the  contention  had 
the  support  of  the  district  court.  Appellees 
contend  for  the  application  of  the  act  of 
1875,  and  the  circuit  court  of  appeals  ap- 
proved the  contention.  We  put  to  one  side 
the  act  of  1881,  which  prescribes  a  period 
of  nonalienation  of  twenty  years,  as  it  is 
conceded  that  the  act  applied  only  to  Winne- 
bagoes,  and  Taylor  is  a  Sioux. 


l"8ec  15.  That  any  Indian  bom  in  the 
United  States,  who  is  the  head  of  a  family, 
or  who  has  arrived  at  the  age  of  twenty-one 
years,  and  who  has  abandoned,  or  may  here- 
after abandon,  his  tribal  relations,  shall,  on 
making  satisfactory  proof  of  such  abandon- 
1056 


ment,  under  rules  to  be  prescribed  by  the 
Secretary  of  the  Interior,  be  entitled  to  the 
benefits  of  the  act  entitled,  'An  Act  to 
Secure  Homesteads  to  Actual  Settlers  on  the 
Public  Domain,'  approved  May  twentieth, 
eighteen  hundred  and  sixty-two,  and  the  acts 

241  U.  8. 


1916. 


UNITED  STATES  ▼.  HSMMER. 


884-387 


The  question  in  the  case,  then,  is  the  sim- 
ple one:  Which  act  applied  to  and  de- 
termined Taylor's  rights?  Or,  to  state  the 
question  differently  and  at  the  same  time 
give  the  test  of  its  solution,  Was  the  act 
of  1875  repealed  or  superseded  by  the  act 
of  1884?  There  are  no  repealing  words  in 
the  latter  act,  and  if  i^  repealed  the  other 


located  upon  the  puhUo  Umd%  broaden  it 
so  as  to  include  Indians  who  were  proceed- 
ing under  the  act  of  1875.  The  rule  is 
established  that  under  acts  of  Congress  con- 
cerning the  public  lands  those  are  not  [386] 
regarded  as  such  to  which  a  claim  has  at- 
tached, though  Congress  may,  if  it  be  so 
advised,  exercise  control  over  them.     Hast- 


act,  it  must  have  done  so  by  implication,  ings  &  D.  R.  Co.  v.  Whitney,  132  U.  S.  357, 
The  implication  of  such  an  effect  is  not  361,  364,  33  L.  ed.  363,  365,  366,  10  Sup. 
favored  and  the  character  of  the  act  rejects  Ct.  Rep.  112;  Hodges  v.  Colcord,  103  U.  S. 
it  Unquestionably  the  act  of  1884  is  the  192,  196,  48  L.  ed.  677,  678,  24  Sup.  Ct.  Rep. 
more  general,  and  it  has  criteria  of  applica-  433 ;  Bunker  Hill  &  S.  Min.  &  Concentrating 
tion  different  from  that  of  the  act  of  1875.  Co.  v.  United  States,  226  U.  S.  548,  550,  57 
The  acts,  therefore,  have  different  objects.  L.  ed.  845,  346,  33  Sup.  Ot.  Rep.  138.  Home- 
Under  the  act  of  1884  Indians  located  on  the  stead  entries  under  the  act  of  1875  cannot, 
[385]  public  lands  at  the  passage  of  the  therefore,  be  considered  as  having  been  re- 
act, or  that  might,  under  the  direction  of  ferred  to. 

the  Secretary  of  the  Interior,  or  otherwise,       Taylor  and  those  in  like  situation  did  not 

thereafter  so  locate,  might  avail  themselves  need  the  aid  of  the  act  of  1884.     Its  Ian- 

of  the  provisions  of  the  act.  guage  was  not  of  confirmation  of  rights,  but 

The  act  of  1875  was  more  circumscribed.  ^^^^  permissive  and  prospective,  and  related 

It  did  not  apply  to  Indians  generally,  but  to  the  initiation  and  acquisition  of  rights 

to    those    of    special    qualifications,— those  ^y  ^  different  class.    And  having  this  defl- 

who  had  separated  themselves  from  their  ^^^  purpose,  it  would  be  difficult  to  sup- 
tribes  and  the  influence  of  their  tribes,  who  ^hat,   besides,   righU   acquired   under 

had  advanced   therefore,  to  a  higher  status       .^^  ^^^  ^^^  ir^t^nA^  to  be  limited  with- 

*nd  were  better  prepared  to  manage  the  r  ^^^    ^^^^^^^    ^    ^^^    ^^^     ^^j^    ^^^^ 

affairs   than   Indians   m   general.    And   it        ,        ..  x     i       •  i.  xi 

might  wellhave  been  considered  that  a  five-  !?*H^ ,  **   ^f^f  T^   ^   *"!!'"[!      J"  *u 

year  restriction  upon  the  alienation  of  their  ^^7^]  ^l^^..^^.  progressed  beyond  the 

titles,  added  to  their  five  years'  residence,  P«"»*  ^'  subjection  to  the  power  of  Congress, 

would  give  them  an  appreciation  of  values  ^®  having,  as  we  have  said,  completed  his 

•ufficient  to  protect  them  against  the  im-  residence  upon  the  land,  and  nothing  re- 

providence  of  their  race  and  the  imposition  maining  but  to  make  final  proof  and  receive 

of  others.  ^h®  assurance  of  his  title,  which,  we  have 

Therefore,  the  acts  had  no  repMgnancy,  seen,  was  his  situation  nearly  a  year  before 
but  had  different  fields  of  application,  and  the  passage  of  the  act  of  1884. 
this,  it  might  be  contended,  even  consider-  Congress  has  undoubtedly  by  ite  legisla- 
ing  their  future  operation.  Of  this,  how-  tion  indicated  a  policy  to  protect  Indians 
ever,  we  need  not  express  opinion.  The  act  against  a  hasty  and  improvident  alienation 
of  1884  applied  te  Indians  then  located  on  of  their  lands,  and  the  government  has  cited 
the  public  lands.  Regarding  Taylor  sim-  ik  number  of  statutes.  But,  as  we  have 
ply  as  an  Indian,  those  words  might  be  con-  pointed  out,  such  policy  was  satisfied  by  the 
sidered  to  be  applicable  to  him;  regarding  act  of  1875,  and  we  do  not  think  there  is 
the  purpose  of  the  act,  which  was  to  con-  anything  in  the  history  of  the  act  of  1884 
fer  a  benefit,  not  confirm  one,  they  did  not  which  sustains  the  contention  that  it  was 
apply  to  him  or  to  Indians  in  his  situation,  intended  to  be  an  amendment  of  the  act  of 
for  he,  and  Indians  such  as  he,  were  the  1875,  or  to  indicate  that  the  latter  act  was 
beneficiaries  of  the  prior  act,  and  he  and  not  sufficiently  potent  for  the  purposes  of 
other  Indians,  it  may  be, — but  certainly  he,  protection,  llie  recommendation  of  the  In- 
— ^had  substantially  performed  ito  condi-  terior  Department  was  for  the  remission  of 
tions.  What  remained  to  be  done,  and  could  fees,  and  this  was  responded  to,  but  con- 
have  been  done  before  the  act  of  1884  was  fined  as  we  have  indicated;  and  the  Interior 
passed,  was  not  much  more  than  ceremony.  Department  considered  it  to  be  so  confined, 

Nor  does  the  fact  that  the  act  of  1884  for  fees  were  exacted  from  Taylor  upon  his 

applied  to  such  Indians  as  might  then  be  final    proof,    manifesting    [387]    opinion. 


amendatory  thereof,  except  that  the  provi- 
sions of  the  eighth  section  of  the  said  act 
shall  not  be  held  to  apply  to  entries  made 
under  this  act:  Provided,  however.  That  the 
title  to  lands  acquired  by  any  Indian  by 
virtue  hereof  shall  not  be  subject  to 
40  li.  ed. 


tion  or  encumbrance,  either  l^  voluntary 
conveyance  or  the  judgment,  decree,  or 
order  of  any  court,  and  shall  be  and  remain 
inalienable  for  a  period  of  five  years  from 
the  date  of  the  pi^tent  issued  there- 
fori  .  .  ." 
67  1057' 


S87-389 


8UPRXMB  COURT  OF  THE  UNITED  8TATE& 


Ooi.  IteM, 


irithiB  a  few  monthi  after  the  pMMge  of 
the  act  of  1884,  that  it  did  not  apply  to  him. 
Deeree  affirmed. 

Hr.  Justice  lioReyBOlde  took  no  part 
in  the  coneideration  or  decision  of  this  oaee. 


MERRILL-RUCKGABER  COMPANY, 

Appt., 

V. 

UNITED  STATES. 
(See  8.  C.  Reporter's  ed.  887-898.) 

Public  oontracts  —  ambiguity  —  extra 
work  —  decision  of  snperrisinff  archi- 
tect. 

Any  ambiffuity  In  the  speciflcationi 
for  the  construction  of  the  foundation  for  a 
government  building  arising  from  the  use 
of  the  singular  word  ''building"  instead  of 
the  plural  word  "buildings"  in  specifying 
the  underpinning  required  to  protect  ad- 
joining property,  in  the  face  of  the  con- 
tractor's knowledge,  by  inspection,  of  the 
material  conditions,  and  of  the  other  parts 
of  the  specifications,  which,  inter  tdia,  call 
for  "rear  walls"  instead  of  a  "rear  wall," 
could,  at  the  utmost,  only  give  ground  for 
dispute,  and  the  extra  cost  of  underpinning 
the  rear  walls  of  both  buildings  must  be 
borne  by  the  contractor,  where  the  super- 
vising architect  decides  that  the  contract 
calls  for  such  underpinning,  and  the  con- 
tract makes  final  hU  decision  as  to  the 
proper  interpretation  of  the  drawings  and 
specifications. 

[For  other  cases,  see  United  States,  YI.  f,  in 
Digest    8up.    Ct    1008.] 

[No.  281.] 

Argued  March  17,  1916.    Decided  June  6, 

1016. 

APPEAL  from  the  Court  of  Claims  to  re- 
view a  judgment  dismissing  the  peti- 
tion of  a  public  contractor  for  a  recovery  for 
extra  work.    Affirmed. 
See  same  case  below,  40  Ct.  CI.  553. 

Statement  by  Mr.  Justice  McKenna: 

Appellant  is  a  New  York  corporation 
It  filed  a  petition  in  the  court  of  claims  for 
the  recovery  from  the  United  States  of  the 
sum  of  $4,475.00  for  extra  work  performed 
in  the  construction  of  the  foundation  for 
the  [388]  extension  and  ronodeling  of  the 
United  States  assay  office  in  New  York. 
Issue  was  Joined  on  the  petition  and  the 
court  of  claims,  after  hearing,  dismissed  it. 

The  facts  pertinent  to  the  questions  pre- 
sented, collated  from  the  findings,  are  as 
follows: 

The  appellant  entered  into  a  oontraet 
with  the  United  States  through  the  proper 
105t 


oflioers  of  the  latter  for  th^  eonstmetioa 
of  sueh  foundation  for  the  snm  of  $70,400^ 
in  accordance  with  speeifieations  and  draw« 
ings  prepared  in  the  office  of  the  supervis- 
ing architect. 

The  specifications  required  bidders  to  visit 
the  site  and  fully  inform  themselves  of  the 
character  of  the  a*Jne  and  the  eonditioBS 
under  which  the  work  would  have  to  bs 
performed,  and  failure  to  do  so,  it  was  pro* 
vided,  would  not  relieve  the  successful  bid- 
der from  the  neeessi^  of  furnishing  ma- 
terial or  performing  any  labor  that  mi^t 
be  required  to  complete  the  work  in  aooord- 
ance  with  the  true  intent  and  meaning  of 
the  specifications  and  drawings,  witlurat 
additional  cost  to  the  government. 

The  specifications,  it  was  provided,  should 
supplement  the  drawings,  and  ^Mcifleatioas 
and  drawings  were  to  be  reciproeaily  ex- 
planatory, and  the  decision  of  the  super- 
vising architect  as  to  the  proper  interprs- 
ution  of  the  drawings  and  specifications 
was  to  be  final. 

Under  the  heading  "Excavation"  it  was 
provided  that  "certain  portions  of  old 
foundation  walls,  etc.,  have  been  left  in 
place  as  retaining  walls  in  connection  with 
adjoining  buildings;  the  removal  of  tbeis 
walls  and  the  north  wall  and  so  much  of 
the  present  front  building  as  may  be  neces- 
sary to  install  work  under  this  oontraet 
and  such  other  excavation  in  eonneeUoa 
therewith  as  may  be  necessary  are  to  bs 
included.  .  .  .  The  walls,  etc.,  will  have 
to  be  removed  and  the  excavation  made  in 
such  mftnner  as  not  to  endanger  adjoining 
property  nor  prevent  the  occupancy  of  tbs 
present  front  buildings  and  all  necessary 
[380]  shoring  and  underpinning,  etc,  in 
connection  therewith,  must  be  done." 

Subsequently  the  supervising  architeet 
sent  to  all  parties  from  whom  proposals 
had  been  solicited  the  following  addendum 
amending  the  foregoing  paragraph  of  the 
specifications: 

''Bidders  are  hereby  informed  that  the 
specification  is  to  be  amended  aa  follows: 
Page  7,  fourth  paragraph,  under  'Excava- 
tion,' after  the  clause  'and  all  necessary 
shoring,  underpinning,  etc,  in  oonnectioB 
therewith,  must  be  done,'  add.  In  the  case 
of  the  building  joining  the  north  line  of 
the  site,  the  underpinning  of  tlie  nudn  rear 
walls  must  be  carried  to  rock  by  a  method 
satisfactory  to  the  supervising  architect" 

A  detailed  contract  was  entered  into  pro- 
viding that  the  work,  was  to  be  done  in 
accordance  with  the  speeifieations  and  tbs 
addendum  thereto  and  the  requirements  of 
certain  specified  drawings  and  aneh  other 
detail  drawings  and  models  as  might  be  fur- 
nished to  appellant  by  the  supervisisf 
ard&iteet. 

141  V.  i> 


1915. 


MERRILL-RUCKQABER  CO.  v.  Ul^ITED  STATES. 


889-S91 


It  wai  further  provided  that  ehangei 
might  be  made  in  the  work  and  materials 
when  required  by  the  United  States,  the 
▼alue  of  tuch  work  and  materials  to  be  de- 
termined on  the  basis  of  the  contract  unit 
o{  Talue,  at  prevailing  market  rates,  such 
rates,  in  case  of  dispute,  to  be  determined 
by  the  architect,  whose  decision  should  be 
binding  on  both  parties,  and  that  no  claim 
for  damages  on  account  of  such  changes  or 
for  anticipated  profits  should  be  made  or  al- 
lowed. No  claim  for  extra  materials  or 
work  was  to  be  made  or  allowed  unless  spe- 
cifically agreed  upon  in  writing,  or  directed 
in  writing  by  the  United  States. 

The  assay  office  extension  was  located 
practically  in  the  middle  of  the  block 
bounded  by  Wall,  Nassau,  Pine,  and  William 
streets,  and  among  the  buildings  surround- 
ing the  site  were  two  on  Pine  street,  num- 
bered 25,  27,  and  29.  Number  26  was  ten 
stories  and  Nos.  27  and  29  (being  one 
[30O]  building)  was  thirteen  stories  above 
the  street,  and  each  was  one  story  higher 
at  the  line  of  the  assay  office  extension. 

Appellant  submitted  detail  drawings  show- 
ing its  proposed  method  of  underpinning 
and  protecting  the  walls  of  the  Pine  street 
buildings.  Referring  to  the  drawings,  the 
architect  telegraphed  the  inquiry  why  they 
did  "not  show  underpinning  25  Pine  street 
extending  to  rock,"  to  which  appellant  re- 
plied that,  in  accordance  with  the  addendum 
to  the  specifications,  it  understood  that  the 
building  referred  to  meant  27-29  Pine 
street,  as  No.  25  Pine  street  had  no  rear 
wall,  but  simply  a  light  metallic  curtain 
wall  supported  on  the  side  walls,  and  that 
appellant  did  not  consider  there  was  any 
rear  wall  in  the  building,  and  therefore  it 
(appellant)  showed  the  side  walls  to  be 
taken  care  of  in  the  usual  manner  and  be- 
lieved its  method  so  provided. 

Much  correspondence  ensued,  and  finally 
appellant  was  told  that  it  was  the  opinion 
of  the  architect's  office  that  its  letter  of  the 
2d  instant  (October,  1909)  correctly  set 
forth  the  position  of  the  office,  and  that  it 
was  of  the  opinion  the  work  as  therein  set 
forth  was  required  by  the  contract,  and 
that  appellant  was  not  entitled  to  extra 
therefor,  and  appellant  was  directed  to  car- 
ry out  its  contract  without  further  delay, 
in  accordance  with  that  letter.  To  which 
appellant  replied  that  the  cost  of  the  under- 
pinning to  rock  of  the  walls  of  No.  25  Pine 
street  #ould  be  $4,800  in  addition  to  the 
price  named  in  the  contract,  and  concluded 
as  follows: 

^'As  the  contract  does  not  expressly  or 
impliedly  require  us  to  underpin  to  rock 
premisira  25  Pine  street,  we  shall  proceed 
with  the  work  under  the  contract,  taking 
neeesaary  steps  to  protect  said  premises, 
•0  li.  ed. 


but  will  not  underpin  any  portion  thereof 
to  rock  except  upon  the  understanding  that 
we  are  to  be  paid  the  reasonable  cost  there- 
of, as  indicated  above.' 

[301]  "To  which  the  supervising  archi- 
tect replied,  on  October  30,  1909:  'Your 
statements  are  noted  and  you  are  now  di- 
rected to  proceed  without  further  delay  to 
complete  the  work  in  line  with  o.llce  letters 
of  the  2d,  20th,  and  26th  instance,  and  with- 
out expense  to  the  government.  And  you  are 
advised  that  unless  you  take  action  along 
this  line  within  a  reasonable  time  considera- 
tion will  be  given  to  serving  the  eight  days' 
notice  preparatory  to  the  government  as- 
suming charge  of  the  work  and  completing 
it  at  your  expense.' 

"Upon  appeal  to  the  Secretary  of  the 
Treasury  the  action  of  the  supervising 
architect  was  ratified,  and  the  claimant  was 
directed  in  writing  by  the  Secretary  to  pro- 
ceed with  said  underpinning  in  accordance 
with  the  requirements  of  the  supervising 
architect,  otherwise  the  contract  would  be 
completed  at  claimant's  expense.  The  claim- 
ant did  the  work  under  protest,  and  com- 
pleted it  and  all  of  the  work  under  said 
contract  within  the  time  stipulated  in  the 
contract.  The  actual  cost  of  underpinning 
to  rock  said  building  No.  25  Pine  street 
was  $4,450.  The  contractor  was  paid  the 
full  amount  of  the  contract  price,  $79,400." 

The  use  of  the  word  "building"  in  the 
addendum  to  the  specifications  was  the  re- 
sult of  a  clerical  error  in  the  office  of  the 
supervising  architect.  But  before  submit- 
ting a  proposal  for  the  work,  appellant, 
through  its  presidient  and  agent,  made  an 
investigation  of  the  site  of  the  work  and 
the  buildings  surrounding  the  site,  and  as- 
certained that  the  rear  of  both  the  build- 
ings on  Pine  street  adjoined  the  site  on  the 
north. 

Mr.  John  S.  Flannery  argued  the  cause, 
and,  with  Mr.  Frederic  D.  McKenney,  filed 
a  brief  for  appellant: 

A  contractor  cannot  be  required,  without 
compensation,  to  double  the  quantities  of 
work  actually  specified  in  an  ^vertiscment 
for  proposals  prepared  by  the  government, 
by  recourse  to  general  requirements,  calling 
upon  the  contractor  to  visit  the  site  and 
inform  himself  of  what  was  needed. 

United  States  v.  Utah,  N.  k  C.  Stage  Co. 
199  U.  S.  414,  50  L.  ed.  251,  26  Sup.  Ct.  Rep. 
69;  Beach,  Contr.  §  716. 

As  this  contract,  and  the  specifications 
and  addendum  forming  a  part  thereof,  were 
not  drafted  by  the  claimant,  but  by  the 
representatives  of  the  United  States, — ^the 
officials  of  the  supervising  architect's  office, 
— and  the  error  in  substituting  the  word 
^building"  for  "buildings"  was  made  in  that 

105* 


892 


SUPREME  COURT  OF  THE  UNITED  STATEa 


Ooi.  Xbm, 


office,  the  ambiguity,  if  there  is  any  in  the 
language  of  the  contract,  taking  it  at  a 
whole,  must  be  resolved  againat  the  United 
States. 

Beach,  Contr.  §  726;  Chambers  ▼.  United 
States,  24  Qt.  CI.  387 ;  Otis  ▼.  United  States, 
20  Ct.  CI.  315,  120  U.  S.  115,  30  L.ed.  609, 
7  Sup.  Ct.  Rep.  449;  Edgar  k  T.  Foundry 
k  Mach.  Works  ▼.  United  SUtei,  34  Ct.  CL 
205;  United  States  ▼.  Gibbons,  109  U.  & 
200,  27  L.  ed.  906,  8  Sup.  Ct.  Rep.  117; 
Garrison  ▼.  United  States,  7  WalL  688,  19 
L.  ed.  277;  Anson,  Contr.  p.  328. 

In  Collins  ▼.  United  States,  34  Ot.  CL 
294,  it  was  held  that  a  contractor  who  ex- 
cavates the  number  of  cubic  yards  required 
by  his  contract  is  entitled  to  compensation 
for  extra  excavation  below  grade,  called  for 
l^  the  engineer  in  charge,  notwithstanding 
a  provision  in  the  contract  providing:  "The 
lock  pit  must  be  excavated  to  the  width  and 
length  and  depth  which  the  engineer  in 
charge  shall  deem  necessary." 

A  specific  provision  in  a  contract  calling 
for  one  injector  and  one  pump  controls  gen- 
eral provisions  of  a  contract  that  every- 
thing needed  for  a  lighthouse  shall  be 
supplied  to  make  it  ready  for  use. 

Erickson  ▼.  United  States,  107  Fed.  204; 
Salt  Lake  City  ▼.  Smith,  43  C.  C.  A.  637, 
104  Fed.  466. 

Nor  should  the  United  States  be  permit- 
ted to  escape  the  consequences  of  the  erro- 
neous omission  of  its  own  representatives 
by  shielding  itself  behind  the  special  pro- 
Tision  of  the  contract,  making  the  decision 
of  the  supervising  architect  as  to  the  qual- 
ity and  quantity  of  materials  furnished 
under  the  contract  final,  or  the  general  pro- 
vision that  the  decision  of  the  supervising 
architect  as  to  the  proper  interpretation  of 
the  drawings  and  specifications  shall  be 
final.  These  clauses  do  not  and  cannot  re- 
late to  extra  labor  and  material  which  the 
specifications  failed  to  embrace  and  the  con- 
tract did  not  cover,  and  for  which  the  claim- 
ant seeks  compensation  upon  a  quantum 
meruit  (Salt  Lake  City  v.  Smith,  supra). 
But  if  they  did,  and  the  supervising  archi- 
tect is  to  be  regarded  as  the  sole  arbiter,  the 
claimant  would  not  be  bound  by  his  mani- 
fest mistake  of  law. 

United  States  v.  Farragut^  22  Wall.  406, 
420,  22  L.  ed.  879,  883. 

The  appellant  should  not  be  compelled  to 
suffer  loss  by  reason  of  errors  in  the  speci- 
fication admittedly  made  by  the  supervising 
architect. 

Moore  t.  United  States,  46  Ct.  CI.  172; 
O'Hare  v.  District  of  Coliunbia,  18  Ct.  CI. 
646,  122  U.  S.  640,  30  L.  ed.  1243;  Roettin- 
ger  V.  United  States,  26  Ct.  CI.  391;  Ax- 
man  V.  Unified  States,  47  Ot  CL  637;  Ripley 
lOtO 


V.  United  SUtes,  223  U.  S.  695,  701,  702,  56 
Lw  ed.  614,  617,  618,  32  Sup.  Ct.  Rep.  351 

Courts  strictly  construe  agreements  for 
compulsory  arbitrations  (Hamilton  v.  Liv- 
erpool klu  k  Q,  Ins.  Co.  136  U.  S.  255,  34 
L.  ed.  423,  10  Sup.  Ct.  Rep.  945),  becaust 
they  deprive  the  judicial  tribunals  of  their 
proper  jurisdiction. 

An  equity  court  may  reform  a  contract 
for  a  mutual  mistake,  and  place  the  parties 
thereto  in  the  position  they  would  have  oc- 
cupied had  the  mistake  not  been  made,  but 
we  know  of  no  authority  for  the  position 
that  a  court  of  chancery  may  remold  a  eon- 
tract  to  accord  with  the  intentions  and  un- 
derstandings of  one  id  the  parties,  at  the 
sole  cost  of  the  other  party  thereto. 

Hearne  v.  New  England  Mut.  M.  Ins.  Co. 
20  Wall.  488,  490,  22  L.  ed.  395,  396;  Mof- 
fett,  H.  k  C.  Co.  V.  Rochester,  178  U.  S. 
384,  44  L.  ed.  Ili2,  20  Sup.  Ct.  Rep.  957. 

Assistant  Attorney  General  Thompson 
argued  the  cause  and  filed  a  brief  for  ap- 
pellee : 

The  supervising  architect  being  author- 
iced  to  require  underpinning  where  neces- 
sary, his  judgment  cannot  be  questioned  in 
the  absence  of  bad  faith  on  his  part. 

Martinsburg  &  P.  R.  Co.  t.  March,  114  U. 
S.  549,  29  L.  ed.  255,  5  Sup.  Ot.  Rep.  1035; 
Chicago,  S.  F.  k  0.  R.  Co.  v.  Price,  138  U. 
S.  185,  34  L.  ed.  917,  11  Sup.  Ct.  Rep.  290; 
Kihlberg  v.  United  SUtes,  97  U.  S.  398,  24 
L.  ed.  1106;  United  States  v.  Gleason,  175 
U.  S.  688,  44  L.  ed.  284,  20  Sup.  Ct.  Rep. 
228;  Fruin-Bambrick  Constr.  Co.  v.  Ft 
Smith  k  W.  R.  Co.  140  Fed.  465. 

Though  a  word  in  a  contract,  when  stand- 
ing alone,  may  denote  the  singular,  but, 
when  read  with  the  rest  of  the  contract,  the 
plural  is  indicated,  it  shall  be  so  construed. 

O'Brien  v.  Miller,  168  U.  S.  287,  42  L. 
ed.  469,  18  Sup.  Ct  Rep.  140. 

Where  the  complaining  party  does  not 
rely  upon  the  representations  made  by  the 
other  party,  but  seeks  from  other  quarters 
means  of  verification  of  the  st&tements 
made,  and  actA  upon  information  thus  ob- 
tained, he  cannot  be  heard  to  say  that  be 
was  misled  by  the  representations  of  the 
other  party. 

Farnsworth  ▼.  Duffn«r,  142  U.  S.  43,  35 
L.  ed.  931,  12  Sup.  Ct  Rep.  164. 

[302]  Mr.  Justice  MoKenna,  after  stat- 
ing the  case  as  above,  delivered  the  Opinion 
of  the  court: 

The  case  is  in  narrow  eompasa.  It  in- 
volves for  its  solution  the  construction  of 
a  contract,  and  the  rules  to  guide  such  con- 
struction we  need  not  rehearse.  To  its 
words  we  at  first  resort,  but  not  to  one  or 
a  few  of  them,  but  to  all  of  them  as  asio- 

%A1  U.  S. 


1915. 


UNITED  STATES  v.  JIN  FUEY  MOY. 


892-9M 


elated,  and  aa  well  to  the  conditions  to 
which  they  were  addressed  and  intended  to^ 
provide  for.  The  argument  of  appellant 
ignores  this  rule.  As  we  shall  sec,  it  makes 
one  word  dominant,  controls  all  others  by 
it,  and  puts  out  of  view  the  demands  of 
the  physical  conditions. 

Tlie  contract  provided  that  whatever 
walls  would  have  to  be  removed  and  ex- 
cavations made  would  have  to  be  done  in 
such  manner  as  not  to  endanger  adjoining 
property,  and  that  all  necessary  shoring 
and  underpinning,  etc.,  in  connection  there- 
with, had  to  be  done.  To  this  provision 
there  was  subsequently  added  that  "in  the 
case  of  the  building  [italics  ours]  joining 
the  north  line  of  the  site  the  underpinning 
of  the  main  rear  walls  must  be  carried  to 
rock  by  a  method  satisfactory  to  the  super- 
vising!; architect." 

But  there  were  two  buildings  "joining  the 
north  line  of  the  site,"  and  appellant  se- 
lected one  as  the  full  measure  of  its  obliga- 
tion to  carry  the  underpinning  to  rock, 
as  required  by  the  specifications,  giving  as 
a  reason,  in  a  communication  to  the  archi- 
tect's office,  that  it  did  not  consider  that 
there  was  any  rear  wall  in  No.  25  Pine 
street,  but  only  a  metallic  curtain  wall. 

The  architect's  office  was  not  impressed 
with  the  distinction  between  walls,  and  the 
selection  of  one  building  joining  the  north 
line  of  the  site,  but  insisted  that  the  un- 
derpinning of  the  main  rear  walls  of  both 
of  the  buildings  joining  such  line  must  be 
carried  to  rock  by  a  method  satisfactory  to 
the  supervising  architect.  Appellant  [303] 
filed  its  appeal  to  the  Secretary  of  the 
Treasury,  who  affirmed  the  action  of  the 
architect. 

Counsel  intimates  unfairness  on  the  part 
of  the  supervising  architect,  but  there  is  no 
Just  foundation  for  it;  and,  besides,  there 
ia  no  attempt  to  impugn  the  good  faith  of 
the  Secretary  of  the  Treasury,  who  sus- 
tained the  decision  of  the  architect,  and  the 
contract  explicitly  provides  that  "the  deci- 
sion of  the  supervising  architect  as  to  the 
proper  interpretation  of  the  drawings  and 
specifications  shall  be  final."  If  we  may 
concede  to  appellant  an  ambiguity  in  the 
specifications,  arising  from  the  use  of 
the  singular  word  "building,"  instead  of  the 
plural  word  "buildings,"  against  the  ma- 
terial conditions  which  appellant's  officers 
had  inspected  and  knew  of,  and  against,  aj 
well,  the  other  parts  of  the  specifications, 
which,  among  other  things,  call  for  "rear 
walls"  instead  of  a  "rear  wall,"  seemingly 
implying  two  buildings,  and  not  one  only, 


the  contract,  the  decision  of  the  architect 
upon  the  dispute  was  final. 
Judgment  affirmed. 

Mr.  Justice  McReynolds  took  no  part  in 
the  consideration  or  decision  of  this  case. 


[394]  UNITED  STATES,  PlfT.  in  Err., 

V. 

JIN  FUEY  MOY. 
(See  S.  C.  Reporter's  ed.  394-402.) 

Food  and  drugs  —  statutory  restrictions 
on  possession  of  narcotics  —  con- 
struction. 

The  ffrave  doubts  as  to  congressional 
power  which  any  other  construction  would 
raise  require  that  the  provision  of  the  act 
of  December  17,  1914  (38  Stat,  at  L.  789, 
chap.  1),  §  8,  making  it  unlawful  for  "any 
person"  who  has  not  registered  or  paid  the 
special  tax  imposed  by  that  act  to  have  in 
his  possession  or  control  opium  or  coca 
leaves,  their  salts,  derivatives,  or  prepara- 
tions, be  construed  as  referring  to  those 
only  who  are  required  by  that  statute  to 
register  and  pay  the  special  tax,  viz.,  all 
persons  who  produce,  import,  manufacture, 
compound,  deal  in,  dispense,  sell,  distribute, 
or  give  away,  any  of  said  drugs,  notwith- 
staudine  the  exception  in  such  section  in 
favor  of  the  possession  of  drugs  prescribed 
in  good  faith  by  a  physician,  since  this  ex- 
ception stands  alongside  of  one  that  saves 
employees  of  registered  persons  and  nurses 
under  the  supervision  of  a  physician,  etc., 
and  is  so  far  vague  that  it  may  have  been 
intended  to  mean  other  persons  carrying 
out  a  doctor's  order,  rather  than  the  pa- 
tients. 

[No.  626.]* 

Argued  December  7,   1915.     Decided  June 

5,  1916. 


I 


N  ERROR  to  the  District  Court  of  the 
United  States  for  the  Western  District 
of  Pennsylvania  to  review  a  judgment 
quashing  an  indictment  charging  a  con- 
spiracy for  the  possession  of  opium  and 
salts  thereof.    Affirmed. 

See  same  case  below,  225  Fed.  1003. 

The  facts  are  stated  in  the  opinion. 

Assistant  Attorney  General  Wallace  ar- 
^ed  the  cause,  and,  with  Mr.  W.  C.  Herron, 
filed  a  brief  for  plaintiff  in  error: 

Section  8  of  the  act  should  not  be  re- 
stricted to  those  persons  who  are  required 
to  register  and  to  pay  the  tax. 


Note. — As  to  constitutionality,  construe- 

at  the  utmost  it  could  only  be  said  that    ^}^\  t?"^  ^^  ^',  *^^"**  prohibiting  or 
^,  ^  *       „      .  ,  rwilating    sale    of    poisons — see    note    to 

there  was  ground  for  dispute,  and,  under  ■  Katnnan  y.  Com.  30  L.ILA.(N.S.)  519. 
60  li.  ed.  I0€1 


SUPREME  COUKT  OF  THE  PMITBD  6TATES. 


Ooi.  Tbx, 


United  BUtw  t.  PorUle,  ESS  U.  S.  27,  S« 
h.  ed.  in,  3S  Sup.  CL  B«p.  1. 

The  decUion  of  the  court  below  goe«  only 
on  eonstruction,  and  not  the  const itutionkl- 
itj  of  the  >ct;  heDCe,  the  only  queation  open 
on  tbii  writ  of  error  is  thst  of  the  con- 
•truction  of  the  act. 

United  SUtee  t.  Barber,  219  U.  S.  72,  &6 
L.  ed.  09,  31  Sup.  Ct  Rep.  209;  United 
States  V.  Keitel,  211  U.  S.  370,  S3  L.  ed. 
230,  29  Sup.  Ct  Rep.  123;  United  SUtei  v. 
MeMtill,  215  U.  S.  31,  64  L.  ed.  TO,  30  Sup. 
Ot  Rep.  19;  United  States  v.  Portsle,  235 
U.  S.  31,  59  L.  ed.  112,  35  Sup.  Ct.  Rep.  1 

jUsiatant  Attorney  General  Wstlace  fllet 
ft  leparate  brief  for  plaiutlff  in  error: 

It  the  Kct,  under  recognised  rules  of  In 
terpretation,  is  subject  to  but  one  reaaon 
ftble  reading, — and  we  insist  that  such  ii 
the  esse  here, — this  court  will  not  substi 
tnta  a  different  reading  of  ita  own,  tendinf 
merely  to  make  the  act  eonstitutional. 

United  Statea  t.  Bennett,  232  U.  S.  200 
304,  S8  L.  ed.  612,  010,  34  Sup.  Ct  Rep 
4SS. 

We  may  not  read  the  words  "required  U 
register"  Into  g  8  if  we  can  otherwise  give 
It  a  reasonable  meaning. 

United  States  t.  Goldenherg,  168  U.  S. 
95,  42  L.  ed.  394,  18  Sup.  Ct.  Rep.  3;  United 
Statea  V.  Portale,  232  U.  S.  27,  30,  59  L 
ed.  Ill,  112,  35  Sup.  Ct.  Bep.  1. 

It  the  words  be  taken  according  to  theii 
natural  si^ifieatlon,  it  cannot  be  reason- 
ably read  otherwise  than  as  the  govemnent 
reads  It.    It  is  therefore  self -interpreting. 

Black,  Const  Law,  g  40,  p.  08;  Newell  v. 
P«>ple,  7  N.  Y.  07. 

It  by  one  mode  of  interpretation  the  right 
■mat  become  shadowy  and  unsubstantial  and 
without  any  ronedial  power  adequate  to 
the  end,  and  by  another  mode  it  will  attain 
tta  just  and  secure  ita  manifest  purpose,  it 
would  seem,  upon  principles  of  reasoning, 
ftbsolutety  irresistible  that  the  latter  ought 
to  prevail. 

Prigg  T.  Pennsylvania,  IS  Pet  539,  012, 
10  L.  ed.  1060,  1088. 

A  title,  though  in  a  sense  part  of  the 
met,  has  little,  if  any,  weight  in  interpreta- 
tion, where,  aa  in  congressional  enactments, 
thare  is  no  requirement  that  the  subject  of 
tlia  act  shall  conform  to  the  title. 

Lapina  v.  Williams,  232  U.  S.  7B,  S8  L. 
ed.  515,  34  Sup.  Ct.  Rep.  198. 

Aa  an  exercise  of  the  treaty-making  power 
this  act  is  conetitutional. 

Ware  v.  Hylton,  3  Dall.  199,  1  L.  ed.  668; 
Clarke  v.  Harwoode,  3  Dall.  342,  1  L.  ed. 
688;  Chirac  v.  Chirac,  2  Wheat  250,  4  L.  ed. 
234;  Hughes  v.  Edwards,  0  Wheat.  489,  0 
L.  ed.  142;  Cameal  v.  Banks,  lO  Wheat 
181,  «  -L.  ed.  297 ;   Eauenstein  v.  Lynham, 

loss 


100  U.  6.  4B3,  25  L.  ed.  S28;  Oeofroy  v. 
Rigg^  133  U.  S.  2SB,  33  L.  ed.  S42,  10  Snp. 

•Ct  Rep.  295;  Devlin,  Treaty-Hakli^  Power, 
H  239-296;  Robasae's  Snoceaalon,  40  U. 
Ann.  1406,  22  So.  787;  Tellefsen  t.  Fee. 
168  Haas.  188,  4S  L.RJL  481,  SO  Am.  St 
Rep.  379,  46  N.  E.  562;  McBvoy  r.  Wynun, 

101  Mass.  276,  114  Am.  St  Rep.  801,  77  N. 
E.  379 ;  Mackrauie  r.  Hare,  239  U.  S.  299, 
ante,  297,  36  Sup.  Ct  Rep.  106;  Extant  and 
Limitations  ot  the  Treaty-makiBg  Power,  I 
Am.  Journal  of  International  Iaw,  pi.  2,  pp. 
636,  665,  670. 

When  action  la  taken  within  the  limit* 
ot  a  delegated  power,  that  action  ia  sd- 
preme  over  all  laws  of  the  stAtea  by  the 
very  tetmk  ot  the  Oonstitntion  ItaeU. 

Gibbons  v.  Ogden,  9  Wheat  209,  211,  S 
L.  ed.  73,  74;  Leiey  v.  Hardin,  135  U.  S. 
100,  34  L.  ed.  128,  3  Inters.  Com.  Rep.  36, 
ID  Sup,  Ct  Rep.  81;  MeDermott  v.  Wis- 
consin, 228  U.  S.  115,  S7  U  ed.  764,  47 
L.R.A.(N.B.)  984,  S3  Sup.  Ct  Rep.  431, 
Ann.  Cas.  lOlSA,  30. 

Giving  the  term  "police  power"  a  more 
restricted  meaning,  the  authorlUea  seem  ta 
permit  the  Federal  government,  under  the 
treaty -making  power,  to  enter  this  evai 
more  limited  field. 

Worcester  v.  Georgia,  8  Pet.  616,  8  L.  ed. 
483;  United  States  v.  43  GaUons  ot  Whi» 
key  (United  States  v.  lariviere)  93  U.  S. 
188,  23  L.  ed.  846;  Compagnie  Francaise  De 
Navigation  B  Vapeur  v.  State  Bd.  of  Health, 
186  U.  S.  380,  46  L.  ed.  1209,  22  Sup.  Ct 
Bep.  811;  Haiorono  v.  Baltimore  &  0.  B. 
Co.  213  U.  S.  268,  63  L.  ed.  702,  29  Sup.  Ct 
Rep.  424;  Patsone  v.  Pennsylvania,  232  U. 
8.  138,  68  L.  ed.  639,  34  Sup.  Ct  Bep.  281; 
He  Roas,  140  U.  S.  463,  36  L.  ed.  581,  11 
Sup.  Ct.  Rep.  897;  United  Statea  v.  Por- 
tale, 235  U.  S.  27,  S9  L.  ed.  Ill,  35  Sup.  Ct 
Rep.  1;  Ho  Ah  Kow  v.  Nunan,  6  Sawy.  552, 
Fed.  Cas.  No.  8,546;  Baker  v.  Portland.  6 
Sawy.  568,  Fed.  Oas.  No.  777;  Re  Ah  Chong, 
6  Sawy.  461;  Re  Parrott,  1  Fed.  481;  82 
Ops.  Atty.  Gen.  214. 

Mr.  H.  Ralph  Barton  argued  the  causey 
Mtd,  with  Mr.  George  X.  McLnnahan,  filed 
a  brief  for  defendant  in  error: 

Statutes  should  receive  ft  aenalMe  e«a- 
itruction  to  avoid  an  absurd  conduaion. 

Lau  Ow  Bew  V.  United  Statea,  144  U.  S. 
(7.  36  L.  ed.  340,  12  Sup.  Ct  Bep.  S17. 

The  CMistruction  placed  upon  g  C  by  tbi 
lower  court  in  this  case  is  the  same  aa  that 
;iveD  in  the  case  ot  United  Statea  t.  Woods, 
>24  Fed.  278,  and  United  State*  v.  WiUm, 
!26  Fed.  82. 

It  the  meaning  ot  the  statute  la  donbttel, 
:he  title  ot  the  act,  if  expreaaive,  may  have 
;he  effect  to  resolve  the  doubts,  and  la  tlure- 
'ore  entitled  to  eonsideration. 

•41  V.  B. 


1915. 


UNITED  STATES  ▼.  JIK  FUEY  HOY. 


United  States  ▼.  Fisher,  2  Cranch,  858, 
886,  2  L.  ed.  804,  814. 

The  words  "for  other  purposes"  are  held 
to  express  no  specific  purpose,  and  are  not 
to  be  considered  in  construing  the  title. 

Sutherland,  Stat.  Constr.  2d  ed.  §  122. 

The  act  deals  with  the  registration  and 
payment  of  the  special  tax  by  those  who 
produce,  import,  etc.,  the  drugs  named,  and 
the  words  in  §  8  are  limited  accordingly. 

United  States  t.  Palmer,  3  Wheat.  610, 
681,  4  L.  ed.  471,  477. 

The  taxing  clause  in  §  1  relates  entirely 
to  persons  who  produce,  import,  etc.,  certain 
drugs,  and  the  prohibition  in  §  8  cannot  be 
more  extensiye  than  the  language  of  S  1. 

United  States  v.  Shelley,  229  U.  S.  239, 
67  L.  ed.  1167,  33  Sup.  Ct  Rep.  636. 

To  construe  the  words  "any  person"  in  § 
8  as  is  contended  for  by  the  United  States 
would  be  to  invade  the  private  rights  of 
citizens  of  the  states  entirely  within  the 
jurisdiction' of  the  state,  and  would  accord- 
ingly be  unconstitutional. 

United  States  ▼.  Dewitt,  9  Wall.  41,  19  L. 
ed.  593;  Keller  ▼.  United  SUtes,  213  U.  S. 
138,  53  L.  ed.  737,  29  Sup.  Ct.  Rep.  470,  16 
Ann.  Cas.  1066. 

A  convention  or  treaty  is  of  no  superior 
efficacy  to  a  law  of  Congress.  Each  is 
equally  the  supreme  law  of  the  land  (Whit- 
ney V.  Robertson,  124  U.  S.  190-194,  31  L. 
ed.  386-388,  8  Sup.  Ct  Rep.  456),  subject, 
however,  to  all  the  limitations  of  the  Con- 
stitution (Holmes  v.  Jennison,  14  Pet.  650- 
669,  10  L.  ed.  584-593;  Holden  t.  Joy,  17 
Wall.  211-243,  21  L.  ed.  523-534;  United 
SUtes  V.  43  Gallons  of  Whiskey  (United 
States  ▼.  Lariviere)  93  U.  S.  188,  23  L.  ed. 
846;  Johnson  v.  Gearlds,  234  U.  S.  422,  58 
L.  ed.  1383,  34  Sup.  Ct.  Rep.  794). 

The  act  of  Congress  of  January  17,  1914 
(one  of  the  system  of  laws  following  the 
opium  convention),  forbidding  the  importa- 
tion of  opium  for  smoking  purposes,  is  not 
materiaL  It  does  not  enable  or  authorize 
Congress  to  pursue  drugs  within  the  states 
to  ascertain  their  ultimate  use. 

Keller  v.  United  States,  213  U.  S.  138,  53 
Ifc  ed.  737,  29  Sup.  Ct  Rep.  470,  16  Ann. 
Gas.  1066. 

Mr.  Levi  Cooke  also  argued  the  cause 
for  defendant  in  error. 

Mr.  William  Strite  McDowell  also  filed  a 
brief  for  defendant  in  error: 

The  Harrison  drug  act,  like  any  other  act 
of  Congress,  must  be  construed  to  avoid  ab- 
surdities. 

United  SUtes  ▼.  Kirby,  7  Wall.  482,  486, 
19  L.  ed.  278,  280. 

The  Harrison  drug  act  does  not  apply  to 
mere  consumers. 
€0  li.  ed. 


United  SUtes  ▼.  Woods,  224  Fed.  280; 
United  States  t.  Wilson,  225  Fed.  84. 

The  words  "any  person"  in  §  8  can  only 
apply  to  the  persons  upon  whom  the  act  was 
intended  to  operate,  to  wit:  Those  men- 
tioned in  the  title  and  previous  sections. 

Martin  v.  Ford,  6  T.  R.  101. 

Section  8  of  the  act  is  only  intended  to 
create  a  sUtutory  rule  of  evidence. 

United  SUtes  v.  Woods,  supra. 

Presumed  crime  cannot  be  the  basis  of 
valid  legislation. 

United  SUtes  ▼.  Brown,  224  Fed.  185. 

Hie  title  of  an  act  constitutes  a  part  of 
it,  though  only  a  formal  part 

Hadden  v.  The  Collector  (Hadden  v.  Bar- 
ney) 5  WalL  107,  110,  18  L.  ed.  518,  519. 

It  will  not  satisfy  the  demands  of  a  con- 
stitutional government  to  say  that  this  or 
that  construction  is  the  beneficial  intent  or 
policy  of  the  government,  or  the  reason  of 
ite  enactment 

Hadden  v.  The  Collector,  supra. 

To  construe  such  act  as  a  police  regular 
tion  te  suppress  the  traffic  in  opium  within 
the  severs!  sUtes  is  to  render  the  act  un- 
constitutional. 

United  SUtes  ▼.  Dewitt,  9  Wall.  41,  44,  19 
L.  ed.  593,  594. 

The  presumption  is  against  the  unwar- 
ranted exercise  of  legislative  authority. 

Parsons  v.  Bedford,  3  Pet  433,  448,  7  Lw 
ed.  732,  738;  Grenada  County  ▼.  Brogden 
(Grenada  County  v.  Brown)  112  U.  S.  261, 
269,  28  L.  ed.  704,  707,  5  Sup.  Ct.  Rep.  125. 

Mr.  Justice  Holmes  delivered  the  opin- 
ion of  the  court: 

This  is  an  indictment  under  §  8  of  the 
act  of  December  17,  1914,  chap.  1,  38  SUt 
at  L.  785,  789.  It  was  quashed  by  the  dis- 
trict court  on  the  ground  that  the  statute 
did  not  apply  to  the  case.  225  Fed.  1003. 
The  indictment  charges  a  conspiracy  with 
Willie  Martin  to  have  in  Martin's  posses- 
sion opium  and  salts  thereof,  to  wit,  one 
dram  of  morphine  sulphate.  It  alleges  that 
liartin  was  not  registered  with  the  col- 
lector of  internal  revenue  of  the  dis- 
trict, and  had  not  paid  the  special  tax 
required;  that  the  defendant,  for  the 
purpose  of  executing  the  conspiracy,  is- 
sued to  Martin  a  written  prescription 
for  the  morphine  sulphate,  and  that  he 
did  not  issue  it  in  good  faith,  but  knew 
that  the  drug  was  not  given  for  medi- 
cinal purposes,  but  for  the  purpose  of  sup- 
plying one  addicted  to  the  use  of  opium. 
The  question  is  whether  the  possession  con- 
spired for  it  tdthin  the  prohibitions  of  the 
act. 

The  act  is  entitled,  "An  Act  to  Provide 
for  the  Registration  of,  with  Collectors  of 
Internal  Revenue,  and  to  Impose  a  Special 


399-402 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


OoT.  Temm., 


Tax  Upon,  All  Persons  Who  Produce,  Im- 
port, Manufacture,  Compound,  Deal  in,  Dis- 
pense, 5^11,  Distribute,  or  Give  Away  Opium 
or  Coca  Leaves,  Their  Salts,  Derivati?fs, 
or  Preparations,  and  for  Other  Purposes." 
By  §  1  the  persons  mentioned  in  the  title  are 
required  to  register,  and  to  pay  [400]  a 
special  tax  at  the  rate  of  $1  per  annum, 
with  certain  exceptions,  and  it  is  made  un- 
lawful  for  the  persons  required  to  register 
to  produce,  etc.,  the  drugs  without  having 
registered  and  paid  the  special  tax.  All 
provisions  of  law  relating  to  special  taxes 
are  extended  to  this  tax.  By  §  2  it  is  de- 
clared unlawful  for  any  person  to  sell  or 
give  away  the  drugs  mentioned  without  a 
written  order,  provided  for,  excepting  de- 
liveries by  physicians,  etc.,  or  on  their 
order,  and  certain  other  cases.  Then,  after 
provision  for  returns,  it  is  made  unlaw- 
ful by  §  4  for  any  person  who  shall  not 
have  registered  and  paid  the  special  tax 
to  send,  carry,  or  deliver  the  drugs  in  such 
wmmerce  as  Congress  controls,  again  with 
exceptions.  By  §  6  preparations  containing 
certain  small  proportions  of  the  drugs  are  ex- 
cluded from  the  operation  of  the  act,  under 
conditions.  By  §  7  internal  revenue  tax 
laws  are  made  applicable,  and  then  comes 
§  8,  under  which  the  indictment  is  framed. 

By  §  8  it  is  declared  unlawful  for  "any 
person"  who  is  not  registered  and  has  not 
paid  the  special  tax  to  have  in  his  pos- 
session or  control  any  of  the  said  drugs, 
and  "such  possession  or  control"  is  made 
presumptive  evidence  of  a  violation  of  this 
section  and  of  §  1.  There  is  a  proviso  that 
the  section  shall  not  apply  to  any  employee 
of  a  registered  person  and  certain  others, 
with  qualifications,  or  to  the  possession  of 
sny  of  the  drugs  which  have  been  prescribed 
in  good  faith  by  a  physician  registered  un- 
der the  act,  and  to  the  possession  of  some 
others.  And  finally  it  is  provided  that  the 
exemptions  need  not  be  negatived  in  any 
indictment,  etc.,  and  that  the  burden  of 
proving  them  shall  be  upon  the  defendant. 
The  district  judge  considered  that  the  act 
was  a  revenue  act,  and  that  the  general 
words,  **any  person,"  must  be  confined  to 
the  class  of  persons  with  whom  the  act 
previously  had  been  purporting  to  deal.  The 
government,  on  the  other  hand,  contends 
that  this  act  was  passed  with  two  others  in 
order  [401]  to  carry  out  the  international 
opium  convention  (38  Stat,  at  L.  1929); 
that  Congress  gave  it  the  appearance  of  a 
taxing  measure  in  order  to  give  it  a  coating 
of  constitutionality,  but  that  it  really  was 
a  police  measure  that  strained  all  the 
powers  of  the  legislature,  and  that  §  8 
means  all  that  it  says,  taking  its  words  in 
their  plain,  literal  s^nse. 

A  statute  must  be  construed,  if  fairly 
10t4 


possible,  so  as  to  avoid  not  only  the  con- 
clusion that  it  is  unconstitutional,  but  al- 
so grave  doubts  upon  that  score.  United 
States  ex  rel.  Atty.  Gen.  v.  Delaware  k 
H.  Co.  213  U.  S.  366,  408,  63  L.  ed.  836, 
849,  29  Sup.  Ct.  Rep.  527.  If  we  could 
know  judicially  that  no  opium  is  produced 
in  the  United  States,  the  difficulties  in  this 
case  would  be  less;  but  we  hardly  are  war- 
ranted in  that  assumption  when  the  act 
itself  purports  to  deal  with  those  who  pro- 
duce it.  §  1.  Congress,  at  all  events,  con- 
templated production  in  the  United  States, 
and  therefore  the  act  must  be  construed  on 
the  hypothesis  that  it  takes  place.  If 
opium  is  produced  in  any  of  the  states, 
obviously  the  gravest  question  of  power 
would  be  raised  by  an  attempt  of  Congress 
to  make  possession  of  such  opium  a  crime. 
United  SUtes  v.  De  Witt,  9  Wall.  41,  19 
L.  ed.  593.  The  government  invokes  article 
6  of  the  Constitution,  that  treaties  made 
under  the  authority  of  the  United  States 
shall  be  the  supreme  law  of  the  land.  But 
the  question  arises  under  a  statute,  not 
under  a  treaty.  The  statute  does  not  pur- 
port to  be  in  execution  of  a  treaty,  but 
calls  itself  a  registration  and  taxing  act 
The  provision  before  us  was  not  required  by 
the  opium  convention,  and  whether  this  sec- 
tion is  entitled  to  the  supremacy  claimed 
by  the  government  for  treaties  is,  to  say 
the  least,  another  grave  question ;  and,  if  it 
is  reasonably  possible,  the  act  should  be 
read  so  as  to  avoid  both. 

The  foregoing  consideration  gains  some 
additional  force  from  the  penalty  imposed 
by  §  9  upon  any  person  who  violates  any 
of  the  requirements  of  the  act.  It  is  a  fine 
of  not  more  than  $2,000,  or  imprisonment 
for  not  more  than  [402]  five  years,  or  both, 
in  the  discretion  of  the  court.  Only  words 
from  which  there  is  no  escape  could  warrant 
the  conclusion  that  Congress  meant  to  strain 
its  powers  almost  if  not  quite  to  the  break- 
ing point  in  order  to  make  the  probably 
very  large  proportion  of  citizens  who  have 
some  preparation  of  opium  in  their  posses- 
sion criminal  or  at  least  prima  facie  crimi- 
nal, and  subject  to  the  serious  ptmishment 
made  possible  by  §  9.  It  may  be  assumed 
that  the  statute  has  a  moral  end  as  well 
as  revenue  in  view,  but  we  are  of  opinion 
that  the  district  court,  in  treating  those 
ends  as  to  be  reached  only  through  a  reve- 
nue measure,  and  within  the  limits  of  a 
revenue  measure,  was  right. 

Approaching  the  issue  from  this  point  of 
view  we  conclude  that  "any  person  nol 
registered"  in  §  8  cannot  be  taken  to  mean 
any  person  in  the  United  States,  but  must 
be  taken  to  refer  to  the  class  with  which 
the  statute  undertakes  to  deal, — the  personi 
who  are  required  to  register  by  §  1.    It  is 

241  U.  & 


igiC.  RUSSO-CHINESE  BANK  v.  NAT.  BANK  UF  COMMBHCB.  402,  403 

true  that  tlia  exemptioD  of  possetaioo  of  icj,  and  bill  of  sale  attached,  la  entitled  to 
druge  prescribed  in  good  faith  by  a  pbjsi-  demand  an  accounting  from  ita  correipond- 
cian   ia  a  powerful  argument,  Uken  by  it-    ""t  ^'^"^  for  0>e  availe  of  the  draft,  and  to 

mU,  for  a  broader  meaning.  But  every  '*"'*  '^.'f*'-'"'u'^'  *''*■  'TT'^'  !?"'  *" 
..  lun  «f  «««.». ...ti^^  i.  ,7..:^.—  ...J  .1.  nioney  which  it  had  received  irom  the  cor- 
queetion  of  con.truet,on  »  unique,  and  an  ^^poident  bank  upon  the  draft,  although 
argument  that  would  prevail  m  one  case  jj  ^^^  ^ave  had  a  guaranty  agaloat  1.^ 
may  be  inadequate  In  another.  Thla  ex-  given  by  the  drawer  of  the  draft. 
emption  etanda  alongaide  of  one  that  aavea  iFot  other  cises,  lee  Bank*,  I.  •,  1,  In  Digest 
employee!  of  regletered  periona,  aa  do  SI  1  ^'"'-  ^^  ^'''*-' 
and  i,  and  nuriei  tinder  the  ■uperviilon  of  ^^^   244  1 

a  physician,  etc.,  aa  does  g  4,  and  ia  ao  tar  '^ 

,.(.,.  tb.t  Urn.,  k««  lad  to  mind  ott.r  4,  ^  ^  „  jj  ^  ,j  „„  ^^^ 
peruiiiB  carrying  out  a  doctor'a  order,  rath-  Juno  6   1016 

«r  than  the  patienta.    Hie  general  purpoao  ' 

aeenia  to  be  to  appl,  to  poaaeaalon  uemp.  ^^  „^^  „,  (.,„,„„„  „  tt,  „„|^ 
tion,  atailar  to  tho»  applied  to  reglatra-  {J  g^^,  circuit  Court  ol  Appeala  lor 
lion.  Even  II  lor  a  moment  the  «»pe  and  „,.  ^^^  circuit  to  r.rle.  a  judgment 
Intent  ol  the  act  were  loat  a.ght  ol  the  pro-  ,|,,^^  „  ,  ^„„^  ,^„  „,  „  ,'„,»  ^^  , 
.1.0  1.  not  enough  to  orereome  the  dominant    j„aju„„   „,   ,b,   d,,,,,.!   c„„,i   ,„    „,, 

■■"• ■■•' " '  """d-         Wealem  Dl.lrlct  ol  Oregon  to  la.or  ol  de- 

tendant  Id  an  action  by  a  collecting  bank 
to  recover  from  a  forwarding  bank  money 
wliich  the  former  had  paid  to  the  latter  on 
account  of  a  draft  aent  for  collection.    Af- 

Sm  aane  ease  below,  124  C.  C.  A.  434, 
20S  Fed.  64S. 
The  facta  are  atated  in  the  opinion. 

*■  Mr.  Warren  Oregrory  argued  the  cauae, 

NATIONAL   BANK    OF   COMMERCE   OF    »nd,  with  Meaera.  George  H.  Whipple  and 

SEArrLE,  WASHINGTON.  t.  L.  Stile.,  filed  a  brief  for  petitioner: 

,o      o    n    n       _.  _i      ^    jnt  110  X  "^^  t"*l   court   proceeded   upon   the   aa- 

(See  8.  C.  Reporter-,  ed.  403-<lB.)  ^^p^.^^   ^^^^   ^J^   ^^   ^   ^^';^^.^^^   j,^^ 

Appeal  —  rereralbl*     error  -  inatruc-  '"=''  '■■umption  muat  neceaaarily  be  prem- 

ttons  —  liability  ol  colltsctlng  bank.  ""*  "pon  the  propo.ition  that  the  new  obli- 
1.  Instructing  the  jury  that  ■  draft  re-  gatioa  cxtinguiBhed  the  claim  againat 
celved  by  a  bank  for  collection,  with  bill.  Clarkaon  ft  Company  on  the  accepted  drnft. 
of  lading,  insurance  policy,  and  bill  of  sale  The  pleadings,  the  testimony,  and  tlie  con- 
attached,  under  instruetione  to  deliver  the  juct  of  the  partlei  conclusively  demonstrate 
documenta    on  payment,    must  be  regarded  ^     eontrarv 

as  paid.  «.  as  to  render  the  collecting  bank  'g                                        Wharton 

accountable  therefor  to  the  forwarding  bank.  ™  „         ,  ^      ^  7,    ,V.    »  ,    V  ^  „ 

if  the  collecting  bank  permitted  the  .frawees  '■  Walker,  4  Barn.  &  C,  164,  3  L.  J.  K.  B. 

(who  were  also  the  agent,  of  the  carrier),  183,  fl  DowL  *  R.  288;   Hyde  v.  Booraem, 

upon  acccpling  the  draft,  to  take  over  the  16  Pet.  ISS.  10  L.  ed.  925;   Union  Bank  t. 

ahipment   under  a  atipulation  to  recognize  Stafford,  12  How,  327.  13  L.  ed.  1008. 

the  bank  as  owner,  and  an  agreement  to  ae-  if  we  a.aume  that  the  Port  Arthur  branch 

count  to  it  for  the  proceeds  of  sale,  afforda  ^     contrary    to    ita    inatructions,    permit 

no  ground  for  reveraal,  where  the  court  jm-  cUrk«.n  U,  take  over  the  flour,  then,  to  the 

mediately  thtreatter  aaid  that  the  proceed.  .     .     ,  . ,          ,         ...               ■.     ^i  . 

of  the  aa'le  under  Coe  agreement  we^  to  be  "^^  ''  *^*  "•'"«  ">'  »*>.  «cur.ty  that  wa. 

payment  only  if  they  equaled  the  amount  of  thereby  releaMd,  It  may  have  been  reBponai- 

the  draft,  and  otherwise  were  to  be  payment  We.     There  might  have  been  a   conver.ion 

pro    tanto,   and   where   the   evidence   would  to  far  aa  the  releaaed  Bour  wa.  concerned, 

not  have  warranted  a  flnding  that  the  value  but  this   converaion   could   not  eitend   fur- 

of  the  shipment  waa  lea.  than  the  amount  ther  than  the  amount  and  value  of  tha  Bout 

of  the  draft.  _  releaaed 

[For  other  e*B«i.  Me  Appe.l  and  Bnror,  VIII.  ■"■""=■«''     ,  _     ,         _.„..„,    ^ 

m,  4,  Id  Dlgeat  Sup.  Ct  IMS.)  Commercial  Bank  v.  Tint  State  Bank  fc 

Baoka  —  coUecUona  —  UablUty  of  col-  T.  Co.  —  Tax.  Civ.  App.  — ,  163  S.  W.  1176. 

lectins  bank.  If  a  pledgee  converts  collateral  to  bis  own 

8.  A  bank  forwarding  a  draft  for  col-  uae,  It  may  operaU  aa  a  payment  of  the 

lection,  with  billa  of  lading,  In.uranee  pol-  ei^,a  to  tha  «t*nt  of  the  value  of  the  con- 

NoTK.— Aa  to  liability  of  collecting  bank  '*'*«d  eollatwal,  hut  no  further, 

for  n«ligence— aee  note  to  Jefferaon  County  Randolph,    Com.  Paper,  2d  ad.    }  796j 

Sav.  Bank  v.  Hendriz,  1  L.RJl(N.S.)  240.  Hunt  ▼.  Nnert  10  Fl<^-  S04,  SO  Am.  Dm:. 

■0  L.  ed.  1«6B 


SUPREME  COURT  OF  THE  UNITED  STATEa 


Got.  Tkuc, 


616;    Alden    t.    Camden    Anchor-Rockland 
Mach.  Co.  107  Me.  508,  78  AtL  977. 

The  vice  of  a  wrong  rule  in  a  charge  of 
the  court  is  not  extracted  by  the  fact  that 
the  right  rule  was  also  given  therein,  be- 
cause it  is  impossible  to  tell  by  which  rule 
the  jury  was  governed. 

Armour  k  Co.  v.  Russell,  6  L.RA.(NJ3.) 
602,  75  C.  C.  A  416,  144  Fed.  614. 

The  instruction  specified  as  error  is  in- 
separably connected  with  the  special  verdict, 
and,  if  erroneous,  the  special  verdict  did 
not  cure  such  error. 

Boston  k  A.  R.  Co.  v.  O'Reilly,  158  U.  S. 
334,  39  L.  ed.  1006,  15  Sup.  Ct.  Rep.  830; 
Atchison,  T.  ft  S.  F.  R.  Co.  v.  McClurg,  8 
C.  C.  A.  322,  19  U.  S.  App.  346,  59  Fed. 
860;  Deery  v.  Cray,  5  Wall.  795,  18  L.  ed. 
653. 

The  Port  Arthur  branch  was  not  the 
owner  either  of  the  documents  or  the  flour, 
for  two  reasons:  (a)  that  the  relationship 
between  these  banks  was  that  of  principal 
and  agent,  and  not  of  vendor  and  vendee; 
and  (b)  because  the  documents  were  accom- 
panied by  an  invoice  or  a  bill  of  sale  from 
the  Centennial  Mill  Company  to  Clarkson 
k  Company,  showing  that  the  Port  Arthur 
branch  was  acting  as  a  collection  agent  only, 
and  that  it  oould  not  sell  the  flour  to  any- 
one other  than  Clarkson.  , 

Grant,  Banks  k  Bkg.  6th  ed.  p.  53 ;  Morse, 
Banks  k  Bkg.  4th  ed.  §  217;  Second  Nat. 
Bank  v.  Bank  of  Alma,  99  Ark.  386,  138  S. 
W.  472,  2  N.  C.  C.  A  737;  Nebraska  Hay 
k  Grain  Co.  v.  First  Nat.  Bank,  78  Neb.  334, 
9  L.RA..(N.S.)  251,  126  Am.  St.  Rep.  602, 
110  N.  W.  1019;  Hambro  v.  Casey,  110  U. 
S.  210,  28  L.  ed.  125,  3  Sup.  Ct.  Rep.  369; 
Balbach  v.  Frelinghuysen,  15  Fed.  675;  Elm 
City  Lumber  Co.  v.  Childerhose  k  Pratt.  167 
N.  C.  34,  83  S.  £.  22;  W.  J.  Barton  Seed, 
Feed  k  Implement  Co.  v.  Mercantile  Nat. 
Bank,  128  Tenn.  320,  160  S.  W.  848;  Ladd 
k  T.  Bank  v.  Commercial  State  Bank,  64 
Or.  486,  49  L.R.A.(N.S.)  657,  130  Pac. 
975;  Commercial  Bank  v.  First  Nat.  Bank, 
—  Tex.  Civ.  App.  — ,  153  S.  W.  1175; 
American  Thresherman  v.  Citizens'  Bank 
(American  Thresherman  v.  De  Tamble 
Motors  Co.)  154  Wis.  366,  49  L.RA.(N.S.) 
644,  141  N.  W.  210;  Price  Brokerage  Co. 
V.  Rushfeldt,  185  Mo.  App.  32,  171  S.  W. 
976;  Wisconsin  M.  k  F.  Ins.  Co.  Bank  v. 
Bank  of  British  N.  A  21  U.  C.  Q.  B.  284; 
National  Bank  v.  Merchants'  Nat.  Bank,  91 
U.  S.  92,  23  L.  ed.  208;  Dickerson  v.  Wason, 
47  N.  Y.  439,  7  Am.  Rep.  455;  Tyson  v. 
Western  Nat.  Bank,  77  Md.  412,  23  L.R.A. 
161,  26  Atl.  520;  Midland  Nat  Bank  v. 
Brightwell,  148  Mo.  358,  71  Am.  St.  Rep. 
608,  49  S.  W.  994;  Commercial  Nat.  Bank 
V.  Armstrong,  39  Fed.  684 ;  Bank  of  Bay  | 
Biscayne  v.  Monongahela  Nat.  Bank,  126 
1066 


Fed.  436;  Le  Caoz  v.  Eden,  2  DoogL  K.  B. 
594;  Bancroft  ▼.  Bancroft,  110  CaL  S74,  42 
Pac.  896. 

A  collecting  hank  cannot  sail  the  goods 
represented  by  a  bill  of  lading  to  a  third 
party  without  notice  to  the  sender. 

Gregg  V.  Bank  of  Colombia,  72  &  C.  468, 
110  Am.  St.  Rep.  63S,  52  &  K.  103. 

Usage  or  eustom  cannot  be  invoked  in 
contradiction  of  an  express  contract. 

Smith  V.  National  Bank,  101  Fed.  226; 
Morse,  Banks  k  Bkg.  i  223;  Charles  ▼.  Car- 
ter, 06  Tenn.  607,  36  S.  W.  S06. 

A  usage  or  custom,  to  be  of  any  effect, 
must  be  shown  to  have  prevailed  at  the 
place  to  which  the  goods  were  sent,  and  not 
from  which  they  came. 

Wisconsin  M.  k  F.  Jna  Co.  Bank  ▼.  Bank 
of  British  N.  A.  21  U.  C.  Q.  B.  284;  Ehn 
City  Lumber  Co.  v.  Childerhose  k  Pratt, 
167  N.  C.  34,  83  S.  E.  22. 

Messrs.  Warren  Gregory  and  George  H. 
Whipple  also  filed  a  reply  brief  for  peti- 
tioner. 

Mr.  E.  8.  McCord  argued  the  cause,  and, 
with  Mr.  J.  A  Kerr,  filed  a  brief  for  re- 
spondent: 

Under  the  plea  of  payment,  and  certainly 
under  the  plea  of  negligence  upon  the  part 
of  the  plaintiff,  the  defendant  would  be 
permitted  to  show  that  the  draft  had  been 
paid  in  money  or  by  dieek  or  promissory 
note  to  Clarkson  k  Company  and  would  be 
permitted  to  show  facts  rendering  the  Port 
Arthur  branch  liable  to  it  by  reason  oi  the 
negligent  handling  of  the  shipment  bj  the 
plaintiff. 

Buddicum  v.  Kirk,  3  Cranch,  204.  2  U 
ed,  444. 

Where  the  owner  of  goods  shipped  them 
upon  a  bill  of  lading  whereby  they  were 
consigned  to  his  own  order,  at  the  same 
time  drawing  in  favor  of  a  banking  partner- 
ship "for  collection"  a  draft  upon  the  per- 
son to  whom  the  goods  were  intended  to  be 
delivered  upon  payment  of  the  draft,  and 
also  attaching  to  the  draft  the  bill  of 
lading,  so  indorsed  as  to  give  the  partner- 
ship control  of  the  possession  of  the  goods, 
a  delivery  of  them  by  this  firm  to  the 
drawee  of  the  draft,  without  requiring  its 
payment,  was,  as  against  the  owner,  a  con- 
version. 

Hobbs  V.  Chicago  Packing  k  ProvlsioB 
Co.  98  Ga.  576,  58  Am.  St  Bep.  320,  85 
S.  E.  584. 

Where  a  pledgee,  without  spedfie  instnie- 
tions,  takes  over  Uie  collateral,  or  releasei 
the  collateral  from  the  pledge,  such  release 
operates  in  law  as  payment  of  the  claim;  si 
least,  to  the  extent  of  the  value  of  the 
collateral. 

Hunt  V.  Nevers,  16  Pick.  600,  26  Am.  Dee. 

J41  V.  8. 


1015. 


RUSSO-CniNESE  BANK  t.  NAT.  BANK  OF  GOHMBRCE. 


406 


616;  2  Randolph,  Com.  Paper,  §  795;  Cocke 
Y.  Chaney,  14  Ala.  65 ;  Weetphal  t.  Ludlow, 
2  McCrary,  505,  6  Fed.  348. 

The  legal  title,  both  under  the  statutes 
of  the  state  of  Washington  and  under  the 
general  rules  of  law,  to  the  bills  of  lading 
as  well  as  the  flour  represented  by  it,  passed' 
to  the  Husso-Chinese  bank  under  the  in- 
dorsements and  deliveries  of  the  draft  and 
the  bills  of  lading  to  it  by  the  National 
Bank  of  Conunerce. 

Shaw  T.  North  Pennsylvania  R.  Co.  (Shaw 
T.  Merchants'  Nat.  Bank)  101  U.  S.  557, 
25  L.  ed.  892;  North  Pennsylvania  R.  Co. 
V.  Commercial  Nat.  Bank,  123  U.  S.  727, 
31  L.  ed.  287,  8  Sup.  Ct.  Rep.  266;  The 
Carlos  F.  Roses,  177  U.  S.  655,  44  L.  ed. 
929,  20  Sup.  Ct.  Rep.  803. 

The  steamship  company  had  the  right  to 
release  the  flour  upon  the  production  of  the 
bills  of  lading.  The  bills  of  lading  were 
held  by  the  Port  Arthur  bank.  If  the  Port 
Arthur  bank  held  the  legal  title  to  and 
possession  of  the  bills  of  lading,  that  bank 
was  the  only  person  who  had  the  legal 
right  to  direct  the  steamship  company  to 
release  the  flour;  and  the  evidence  is  un- 
contradicted that  the  Port  Arthur  bank  di- 
rected the  steamship  company  to  deliver 
the  flour  to  Clarkson  k  Company,  mer- 
chants. No  other  person  had  the  right  to 
direct  the  steamship  company  to  release 
the  flour, — not  even  the  consignee  of  the 
flour,  the  Centennial  Mill  Company,  could 
have  exercised  such  right. 

First  Nat.  Bank  v.  Northern  P.  R.  Co. 
28  Wash.  439,  68  Pac.  965;  Milwaukee  Nat. 
Bank  v.  City  Bank,  103  U.  S.  668,  26  L.  ed. 
417. 

By  the  actions  of  the  plaintiff  at  Port 
Arthur  the  defendant  was  deprived  of  the 
flour  and  of  the  proceeds  of  the  sale  thereof, 
and  the  Port  Arthur  branch  rendered  itself 
liable  to  the  defendant  for  the  full  value 
of  the  flour,  which  the  jury  must  have 
found  under  the  evidence  at  least  equaled 
the  amount  of  the  draft.  The  defendant 
never  received  either  the  flour  or  the  pro- 
ceeds thereof  on  account  of  the  draft  of 
December  11th,  1903.  Consequently  when 
plaintiff  paid  the  money  for  the  recovery  of 
which  it  is  now  suing,  on  November  9th, 
1904,  it  had  received  payment  of  the  orig- 
inal draft  from  Clarkson  k  Company,  or 
at  least  had  rendered  itself  liable  to  the 
defendant  by  reason  of  its  negligence  in  the 
handling  of  the  shipment  securing  the  draft 
in  question. 

Hobbs  T.  Chicago  Packing  k  Provision 
Co.  98  Ga.  576,  58  Am.  St.  Rep.  820,  25 
8.  E.  584;  Montague  v.  Stelts,  37  S.  C.  200, 
34  Am.  St.  Rep.  736, 15  S.  E.  968;  Means  v. 
Bank  of  Randall,  146  U.  S.  620,  36  L.  ed. 
1107,  13  Sup.  Ct.  Rep.  186;  Dows  v.  Na- 
«0  Ij.  ed. 


tional  Ezch.  Bank,  iTl  U.  S.  618,  23  L.  ed. 
214 ;  First  Nat.  Bank  v.  Fourth  Nat.  Bank, 
77  N.  T.  820,  33  Am.  Rep.  618;  1  Morse, 
Banks  k  Bkg.  3d  ed.  §§  215,  219;  Allen  ▼. 
Suydam,  20  Wend.  321,  32  Am.  Dec.  555; 
Donlan  v.  Clark,  23  Nev.  203,  ^5  Pac.  1; 
Exchange  Nat.  Bank  v.  Third  Nat.  Bank, 
112  U.  S.  276,  28  L.  ed.  722,  5  Sup.  Ct.  Rep. 
141;  Smith  v.  Miller,  43  N.  Y.  171,  3  Am. 
Rep.  690. 

Where  the  n^ligence  of  the  collecting 
agent  has  been  established  and  loss  has  fol- 
lowed, the  face  of  the  draft  is  prima  facie 
the  measure  of  damages  which  the  party 
interested  therein  has  sustained,  and  the 
burden  is  upon  the  collecting  bank  to  show 
what  the  actual  damage  was,  or  to  show 
that  no  damage  has  been  actually  suffered 
by  him,  in  defense  of  an  action  brought 
against  it. 

First  Nat.  Bank  v.  Fourth  Nat.  Bank,  77 
N.  Y.  320,  33  Am.  Rep.  618;  Second  Nat. 
Bank  v.  Bank  of  Alma,  99  Ark.  386,  138 
S.  W.  472,  2  N.  C.  C.  A.  737. 

The  presumption  of  solvency  has  been 
overcome. 

Sahlien  v.  Bank  of  Lonoke,  90  Tenn.  221, 
16  S.  W.  373;  2  Benjamin,  Sales,  4th  Am. 
ed.  S  1243. 

The  National  Bank  of  Commerce,  acting 
for  the  Centennial  Mill  Company,  ought  to 
be  permitted  to  set  up  any  defense  against 
the  Port  Arthur  bank  which  the  Centennial 
Mill  Company  might  have  interposed. 

Second  Nat.  Bank  v.  Bank  of  Alma, 
supra;  Wagnon  v.  Pease,  104  Ga.  417,  80 
S.  E.  895. 

The  Port  Arthur  bank,  in  assuming  to 
make  the  collection  of  the  draft  of  Decem- 
ber 11th,  1903,  was  acting  for  the  real  and 
beneficial  owner  of  the  draft,  no  matter  who 
that  owner  might  be. 

Bank  of  Washington  t.  Triplett,  1  Pet. 
25,  7  L.  ed.  37;  Diamond  Mill  Co.  v.  Groes- 
beck  Nat.  Bank,  9  Tex.  Civ.  App.  31,  29 
S.  W.  169;  Exchange  Nat.  Bank  v.  Third 
Nat.  Bank,  112  U.  S.  276,  28  L.  ed.  722,  5 
Sup.  Ct.  Rep.  141;  1  Morse,  Banks  k  Bkg. 
3d  ed.  §  251 ;  M'Kinster  v.  Bank  of  Utica, 
9  Wend.  46. 

Mr.  Justice  Hughes  delivered  the  opin- 
ion of  the  court: 

The  Russo-Chinese  Bank  brought  this  ac- 
tion to  recover  back  money  which  it  had 
paid  to  the  National  Bank  of  Commerce  of 
Seattle.  Judgment  of  nonsuit  was  entered 
on  the  first  trial  and  was  reversed  by  the 
circuit  court  of  appeals.  109  C.  C.  A.  398, 
187  Fed.  80.  On  the  second  trial,  there  was 
a  verdict  for  the  defendant,  and  the  judg- 
ment entered  accordingly  was  affirmed.  124 
C.  C.  A.  434,  206  Fed.  646.  The  case  comes 
here  on  certiorarL 

1067 


407-409 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


[407]  The  facta  are  these:  In  December, 
1903,  the  Centennial  Mill  Company,  of  Seat- 
tle, shipped  bj  the  steamship  "Hyades"  of 
the  "Puget  Sound-Oriental  Line"  35,312 
quarter  sacks  of  fiour  to  be  transported  to 
Port  Arthur,  or  Dalny,  and  to  be  there  de- 
livered "unto  shipper's  order  or  to  his  or 
their  assigns  (notify  Clarkson  k  Com- 
pany)." In  accordance  with  the  usual 
course  of  business  the  Centennial  Mill  Com- 
pany drew   its  draft,  dated  December   11, 

1903,  on  Clarkson  &  Company,  for  $30,- 
194.80,  payable  ninety  days  after  sight,  to 
the  order  of  the  National  Bank  of  Commerce 
(with  exchange  and  collection  charges),  and, 
attaching  thereto  the  original  and  duplicate 
of  the  bill  of  lading  for  the  shipment  above 
described  (which  was  indorsed  in  blank), 
the  policy  of  insurance,  and  bill  of  sale  to 
Clarkson  &  Company,  delivered  the  draft 
to  the  National  Bank  of  Commerce,  of 
Seattle,  which  paid  the  amount  of  the  draft 
to  the  Mill  Company.  This  bank  then  for- 
warded the  draft,  with  the  documents,  to 
the  Port  Arthur  branch  of  the  Russo- 
Ohinese  Bank  for  collection,  stating  in  the 
letter  of  transmittal:  "Documents  are  to 
be  delivered  on  payment."  The  letter,  with 
the  draft  and  documents,  was  received  on 
January  22,  1904.^  In  acknowledging  re- 
ceipt, the  Russo-Chinese  Bank  used  the 
usual  form  of  letter,  which  stated  that  spe- 
cific instructions  must  be  given  concerning 
disposition  of  bills  and  documents,  and 
storage  of  goods,  in  case  the  draft  were 
dishonored.  No  such  instructions  were 
given.  The  draft  was  presented  for  accept- 
ance on  January  23,  1904,  and  was  accepted 
on  January  30,  1904,  by  Clarkson  &  Com- 
pany, and  the  Seattle  bank  was  notified  ac- 
cordingly.    The  acceptance  fixed  April  30, 

1904,  as  the  due  date,  according  to  the 
tenor  of  the  draft,  and  on  the  expiration  of 
two  days'  grace  allowed  by  the  Russian  law 
it  was  protested  on  May  3,  1904.  There 
was  evidence  that  the  draft,  with  [408] 
deed  of  protest,  was  mailed  to  the  Seattle 
bank  on  May  26,  1904;  and  there  was 
counter  testimony  that  it  never  was  re- 
ceived. 

The  Russo-Japanese  War  was  formally 
declared  on  February  10,  1904.  From 
February  9th  there  was  a  stringent  water 
blockade  of  Port  Arthur,  and  about  May  3d 
the  investment  was  made  complete  by  the 
Japanese  land  forces.  Port  Arthur  fell  on 
January  2,  1905,  and  thereupon  the  Jap- 
anese authorities  took  possession  of  all  the 
books  and  documents  of  the  Russo-Chinese 
bank  at  Port  Arthur;  these  were  retained 
until  March,  1906,  when  they  were  returned 

iFor  convenience,  we  give  the  dates  "New 
Style." 
1068 


to  the  bank  and  taken  to  its  home  office  at 
St.  Petersburg. 

Clarkson  &  Company,  an  importing  firm 
having  its  principal  place  of  business  at 
Vladivostok  and  a  branch  office  at  Port 
Arthxir,  were  also  the  agents  at  the  latter 
place  of  the  steamship  company  which  car- 
ried the  fiour.  On  April  29,  1904,  the  Port 
Arthur  branch  of  the  Russo-Chinese  Bank 
wrote  to  the  Shanghai  branch  of  the  bank 
(in  answer  to  an  inquiry  requested  by  a 
representative  of  the  Centennial  Mill  Com- 
pany) that  the  bank  had  "all  shipping 
documents,"  and  added:  "The  flour  rela- 
tive to  the  first  three  bills"  (including  the 
one  in  question)  "is  in  the  hands  of  Clarkson 
&  Company  and  has  been  sold  by  them. 
They  promised  to  take  up  the  bills  as  soon 
as  they  get  the  money  of  their  sale  .  .  . 
Bill  No.  1559/7035"  (that  is,  the  draft  here 
involved)  "is  due  to-morrow  and  eh  all  be 
protested  if  not  paid."  It  was  further 
stated  that  the  fact  that  Clarkson  &  Com- 
pany had  obtained  possession  of  the  goods, 
although  the  bill  of  lading  was  held  by  the 
bank,  was  due  to  their  being  the  steamship 
agents,  and  could  not  be  prevented.  On 
July  7,  1904,  the  Seattle  bank  wrote  to  the 
Russo-Chinese  Bank  at  St.  Petersburg  that 
Clarkson  had  advised  the  drawer  that  this 
draft,  and  others,  had  been  paid  before  ma- 
turity. The  Russo-Chinese  Bank  replied,  in 
substance,  that  it  was  not  in  a  [409]  posi- 
tion to  trace  the  matter,  but  would  investi- 
gate it  as  soon  as  possible.  There  was  fur- 
ther correspondence  in  which  the  Seattle 
bank  set  forth  its  information  as  to  the  pay- 
ment of  the  draft,  and  the  Russo-Chinese 
Bank  reiterated  its  inability  to  ascertain 
the  facts.  Finally,  in  response  to  the  de- 
mand of  the  Seattle  bank  for  the  return  of 
the  bill  of  lading  attached  to  the  draft,  or  a 
remittance  of  its  amount,  the  Russo-Chinese 
Bank,  St.  Petersburg,  under  date  of  Novem- 
ber 9, 1904,  forwarded  to  the  Seattle  bank  a 
check  for  $36,013.70  (being  $36,194.80,  the 
face  of  the  draft,  less  commission  and 
charges),  and  added:  "It  remains,  of  course, 
however  understood  that  in  case  your  above 
remittance  proves  not  to  have  been  paid  for 
by  Clarkson  k  Co.  you  are  held  responsible 
to  refund  the  amount  of  our  to-day's  cheque." 
The  Seattle  bank  (December  5)  acknowl- 
edged receipt,  pointing  out  that  a  balance 
of  $2,298.49  was  still  needed  to  make  pay- 
ment of  principal  and  interest  in  full,  and 
stating:  "We  on  our  part  agree  upon  re- 
turn to  us  of  both  sets  of  bills,  allowing 
that  the  draft  has  not  been  paid,  to  reim- 
burse you  in  the  sum  paid  us,  provided, 
that  we  were  in  no  wise  injured  by  the  fact 
I  that  your  Port  Arthur  branch  has  indefi- 
.  nitely  held  the  bills  after  their  maturity, 
'  at  which  time  they  could  have  been  returned 

241  U.  S. 


1916. 


RUSSO-CHINESE  BANK  y.  NAT.  BANK  OF  COMMERCE. 


40^-412 


ib  us  and  we  could  have  collected  from  the 
Steamship  Company."  On  December  29, 
1904,  tJie  Russo-Chinese  Bank,  St.  Peters- 
burg, enclosed  check  for  the  balance  re- 
quested, and  said:  "It  remains  understood 
tiiat  in  case  your  above  remittance  proves 
not  to  have  been  paid,  you  declare  your- 
selves ready  to  refund  us  these  $2,298.49 
with  the  $36,013.70,  sent  on  27/9  November 
plus  accrued  interest."  And  in  reply  the 
Seattle  bank  agreed  "that  guarantee  con- 
tained in  our  letter  of  December  5tb  shall 
also  cover  this  amount." 

When  the  Russo-Chinese  Bank  obtained 
from  the  Japanese  authorities  the  books 
and  documents,  it  ascertained  that  the 
draft  in  question  had  been  protested  for 
nonpayment,  [410]  and  had  been  mailed  to 
the  Seattle  bank.  Thereupon,  on  June  27, 
1906,  the  Russo-Chinese  Bank  demanded  the 
refunding  of  the  money  paid  t6  cover  the 
draft.  Ihe  demand  was  refused  and  this 
action  was  brought. 

It  was  alleged  in  the  complaint  that  the 
payment  to  the  Seattle  bank  had  been  made 
upon  condition  that  "if  it  should  thereafter 
be  ascertained  that  said  draft  had  not  been 
paid,"  the  money  should  be  refunded,  and 
that  there  had  been  no  payment  in  fact. 
The  defendant  denied  that  the  condition 
was  as  stated,  and  alleged  that  it  had 
agreed  to  reimburse  the  plaintiff  upon  the 
return  "of  both  seta  of  bills"  and  a  show- 
ing that  the  draft  "had  not  been  paid," 
provided  the  defendant  was  in  no  wise  in- 
jured by  the  negligence  of  the  plaintiff  in 
the  performance  of  its  duties.  It  was 
further  averred,  among  other  things,  that 
the  draft  had  been  paid  in  full  by  Clarkson 
A  Company;  that  it  was  the  duty  of  the 
plaintiff  not  to  permit  the  fiour  represented 
by  the  bill  of  lading  to  be  appropriated  by 
Clarkson  k  Company;  and  that  if  the  pro- 
ceeds of  the  sale  of  the  flour  were  not  ap- 
plied to  the  payment  of  the  draft,  the  fail- 
ure was  due  to  the  plaintiff's  carelessness 
and  breach  of  duty.  The  plaintiff  in  its 
reply  denied  these  averments  and  alleged 
affirmatively  that  Clarkson  k  Company 
were  the  agents  of  the  steamship  company, 
and  that  it  was  well  known  to  the  defend- 
ant that,  upon  arrival,  the  flour  would  be 
delivered  into  their  keeping  as  such  agents, 
whether  the  draft  was  paid  or  not.  and  that 
the  appropriation  of  the  flour  by  them  be^ 
fore  payment  was  a  matter  not  within 
plaintiff's  control. 

The  judgment  of  nonsuit  on  the  flrst 
trial,  because  of  a  failure  to  show  the  re- 
turn of  the  draft  and  accompanying  docu- 
ments, and  thus  to  prove  the  breach  of  an 
express  promise,  was  reversed  upon  the 
ground  that  the  complaint  stated  a  cause 
of  action  upon  an  implied  agreement  to  re- 
60  Ij«  ed. 


store  money  paid  under  mistake  of  fact* 
109  C.  C.  A.  398,  187  Fed.  p.  86. 

[411]  On  the  second  trial  the  jury  found 
a  general  verdict  in  favor  of  the  defendant, 
and  also  returned  a  special  flnding  as  fol- 
lows: 

"We  .  .  .  flnd  that  the  Port  Arthur 
branch  of  the  Russo-Chinese  Bank  did  re- 
ceive payment  for  the  draft  dated  December 
11th,  1903,  on  account  of  which  the  plain- 
tiff made  the  remittance  to  the  defendant 
alleged  in  the  complaint." 

The  court  of  appeals  held  that,  notwith- 
standing the  protest  of  the  draft  and  the 
other  evidence  introduced  by  the  plaintiff 
to  show  that  it  had  not  been  paid,  this  spe* 
cial  flnding  had  sufficient  support.  In  its 
succinct  review  of  the  evidence  the  court 
said: 

"The  flour  in  question  was  carried  to 
Port  Arthur  by  the  ship  Hyades,  which 
reached  there  about  the  middle  of  January, 
1904.  The  evidence  also  shows  that  Clark- 
son k  Company  were  large  customers  of  the 
bank.  The  succeeding  ship  of  the  steam- 
ship company,  also  carrying  flour  among 
other  things,  reached  Port  Arthur  about  the 
7th  of  February,  1904.  Short"  (assistant 
manager  of  Clarkson  k  Company  until,  as 
he  said,  February  4,  1904)  "testified, 
among  other  things,  that  when  the  Hyades 
arrived  with  the  35,312  quarter  sacks  of 
flour  in  question,  there  were  but  from  6,000 
to  8,000  sacks  in  Clarkson  k  Company's 
warehouse,  and  that  when  that  shipment 
arrived  he  went  to  the  Port  Arthur  bank 
on  behalf  of  Clarkson  k  Company  to  accept 
the  draft  drawn  for  the  purchase  price  of 
it,  and  did  so;  that  when  he  accepted  the 
draft  Mr.  Ofsiankin"  (manager  of  the 
Russo-Chinese  Bank  at  Port  Arthur),  "on 
behalf  of  the  bank,  authorized  Clarkson  k 
Company  to  take  immediate  possession  of 
the  flour  and  sell  it,  and  that  he  (Short), 
on  behalf  of  that  flrm,  gave  the  bank  what 
he  designates  as  a  'letter  of  guaranty,'  and 
what  Davidson"  (then,  as  he  testified,  man- 
ager of  Clarkson  k  Company  at  Port 
Arthur)  "in  his  deposition  designates  as 
one  of  'hypothecation,'  recognizing  the  flour 
as  the  property  of  the  bank  until  paid  for, 
and  [412]  agreeing  to  pay  over  to  the  bank 
the  proceeds  thereof  until  full  payment  was 
made;  that  the  letter  was  'the  regular  form 
of  bank  guaranty;  it  was  a  printed  form,' 
said  the  witness.  And  both  Short  and 
Davidson  testifled  that  what  was  done  in 
the  matter  of  the  shipment  here  in  question 
was  in  accordance  with  a  long-established 
custom  between  the  Port  Arthur  bank  and 
Clarkson  &  Company;  Short  testifying  that: 
'From  the  year  1900  the  same  rule  existed. 
We  always  gave  the  bank  a  letter  of  guar- 
anty against — a  letter  of  guaranty  to  take 

1069 


412-414 


SUPREME  COUitT  OF  THE  UNITED  STATEa 


Got.  Tkuc, 


delivery  of  the  cargo,  and  the  cargo  belonged 
to  them  until  it  was  paid  for,  and  we  sold 
it  out  and  deposited  the  money  in  the  bank 
from  time  to  time  as  Clarkson  k  Company 
got  it  in.'  Davidson,  in  his  deposition, 
corroborates  the  testimony  of  Short  in  that 
regard.  .  .  .  Short  testified  that  upon 
the  acceptance  by  Clarkson  A.  Company  of 
the  draft  in  question,  and  the  delivery  by 
that  firm  to  the  Port  Arthur  bank  of  the 
documents  mentioned,  Clarkson  &  Com- 
pany took  possession  of  the  35,312  quarter 
sacks  of  fiour;  and  that  they  thereupon 
commenced  selling  it,  and  paying  into  the 
bank  the  proceeds  thereof,  is  a  fair  infer- 
ence from  his  testimony,  as  well  as  that  of 
Davidson.  It  appears  from  the  latter's  tes- 
timony that,  by  reason  of  orders  of  the 
Russian  military  authorities,  he  was  com- 
pelled to  leave  Port  Arthur,  and  did  so  on 
the  17th  of  February,  1904."  After  referring 
to  the  fact  that  Davidson  was  evidently 
confident  that  the  steamer  that  brought 
the  fiour  was  the  "Pleiades"  (the  steamer 
that  arrived  in  February,  after  the  "Hy- 
ades"),  the  court  continued: — "but  the 
fiour  itself,  the  witness  distinctly  testified, 
was  sold  by  him  before  leaving  Port  Arthur 
to  the  firm  of  Ginsburg  k  Company,  which 
he  testified  was  a  large  Russian  firm  doing 
an  extensive  business  with  the  Port  Arthur 
bank,  and  with  its  principal  place  of  busi- 
ness at  that  place,  and  which  sale  he  testi- 
fied he  had  to  make  in  order  to  protect 
Clarkson  k  Company  against  the  war  con- 
ditions then  prevailing.  His  testimony  is,  in 
[413]  part,  that  he  arranged  with  Ginsburg 
k  Company  to  pay  a  part  of  the  money  for 
which  he  sold  the  fiour  into  the  Port  Arthur 
bank,  and  to  take  a  draft  from  that  com- 
pany on  Shanghai  in  his  favor,  which  he 
intended  to  pay  into  Clarkson  k  Company's 
branch  at  that  place,  and  that  he  took  the 
head  of  the  firm,  Ginsburg,  to  the  Port 
Arthur  bank,  and  explained  to  the  manager 
of  that  bank  the  terms  of  the  sale,  to  which 
he  agreed.  Short  testified  that  the  Pleiades 
arrived  at  Port  Arthur  about  the  7th  of 
February,  and  that  he  himself  left  there 
on  board  of  that  vessel,  and  that  not  more 
than  1,500  or  2,000  sacks  of  flour  were 
landed  at  Port  Arthur  from  that  ship,  so 
that  the  jury  might  well  have  concluded 
that  the  35,000  or  40,000  sacks  of  flour 
which  Davidson  thought  were  brought  by 
the  Pleiades  was  the  consignment  of  flour 
that  the  Hyades  carried  to  that  port  a  few 
weeks  before.  As  a  matter  of  course  that, 
and  all  other  inconsistencies  in  the  testi- 
mony of  the  various  witnesses,  as  well  as 
their  veracity,  were  matters  for  the  deter- 
mination of  the  Jury,  in  the  light  of  all 
of  the  facts  and  circumstances  of  the  case. 
Moreover,  there  was  testimony  tending  to 
1070 


show  that  from  the  1st  of  January,  1904; 
to  November  23d  of  the  same  year,  Clark- 
son k  Company  paid  into  the  Port  Arthur 
bank  126,928  roubles  and  97  kopeks."  109 
C.  C.  A.  439-441,  206  Fed.  pp.  661-653. 

We  agree  with  the  court  of  appeals  that 
the  special  finding  of  the  jury  was  ade- 
quately supported.  Error  is  assigned  with 
respect  to  the  following  instruction  to  the 
jury: 

"If  you  find  from  the  evidence  in  this 
case  that  plaintiff  permitted  Clarkson  Com- 
pany to  take  over  the  flour  under  such  an 
arrangement  as  the  defendant  claims  with 
the  stipulation  that  the  plaintiff  was  the 
owner  of  the  flour  and  with  the  agreement 
that  Clarkson  k  Company  would  account 
to  the  plaintiff  for  the  proceeds  of  the  sale 
of  the  flour,  then  I  instruct  you  that  such 
action  on  the  part  of  the  plaintiT  consti- 
tutes in  law  a  payment  of  the  draft  in 
question  [414]  and  the  plaintiff  cannot  re- 
cover and  your  verdict  must  be  for  the 
defendant." 

It  is  said  by  the  petitioner  that  "if  we 
assume  that  the  Port  Arthur  branch  did, 
contrary  to  its  instructions,  permit  Clark- 
son to  take  over  the  flour,  then  to  the  extent 
of  the  value  of  the  security  that  was  there- 
by released  it  may  have  been  responsible." 
But  it  is  argued  that  "although  the  bank 
did  without  warrant  release  the  security," 
still  no  damage  resulted  to  the  Seattle  bank 
if  Clarkson  k  Company  were  in  fact  able 
to  pay  their  draft,  and  that  there  was 
abundant  evidence  that  Clarkson's  financial 
standing  in  Port  Arthur  at  this  time  was 
good;  and  that  in  any  event  the  debt  could 
not  be  deemed  to  be  paid  to  a  greater  ex- 
tent than  the  value  of  the  property.  The 
trial  court,  it  is  insisted,  in  effect  directed 
a  finding  of  payment,  if  the  jury  found 
that  the  agreement  was  made  as  described, 
regardless  of  this  value. 

This  criticism  of  the  instruction  fails,  we 
think,  to  take  proper  account  of  its  context. 
Immediately  following  the  words  quoted, 
the  court  said: 

"It  Is  a  general  rule  of  law  that  where 
collateral  security  is  received  for  a  debt 
with  power  to  convert  the  security  into 
money,  this  is  specifically  applicable  to  the 
payment  of  such  debt;  the  same  person  be- 
ing the  party  to  pay  and  receive,  no  act  Is 
necessary  and  the  law  makes  the  applica- 
tion. If  the  proceeds  equal  or  exceed  the 
amount  of  the  debt  it  is  de  facto  paid;  no 
action  would  lie  for  it,  and  proof  of  ^ese 
facts  would  support  the  defense  of  pay- 
ment. And  if  you  And  from  the  evidence 
in  this  case  that  the  plaintiff  did  consent 
to  Clarkson  taking  over  the  flour  in  ques- 
tion and  consented  to  the  sale  of  the  same 

141  V.  S. 


1915. 


RUSSOCHINESE  BANK  v.  NAT.  BANK  OF  COMMERCE. 


414-417 


by  Clarkaon  k  Company,  and  then  Clark- 
ton  &  Company  sold  the  flour  in  question 
and  paid  over  the  proceeds  thereof  to  the 
plaintiff,  tlien  such  payment  of  the  pro- 
ceeds of  the  sale  of  such  flour  to  the  plain- 
tiff operated  as  a  payment  of  the  draft  in 
question, — provided  the  proceeds  [415]  of 
the  sale  of  the  flour  equaled  the  amount  of 
the  draft;  and  if  such  proceeds  did  not  equal 
or  exceed  the  amount  of  the  debt  then  it 
was  A  payment  pro  fanfo— that  is,  a  pay- 
ment of  80  much  of  the  said  draft  as  the 
proceeds  of  the  sale  of  the  flour  would  pay 
of  the  same;  and  this  is  the  law,  notwith- 
standing the  fact  that  plaintiff  may  have 
received  the  proceeds  of  the  sale  of  said 
flour  and  placed  the  same  to  the  credit  of 
Clarkson  &  Company  in  its  bank,  and  per- 
mitted Clarkson  k  Company  to  use  said 
funds  for  other  purposes." 

In  this,  the  trial  judge*  made  his  mean- 
ing sufficiently  clear.  If  the  proceeds  of 
the  sale  under  the  agreement  were  to  be 
payment  only  if  they  "equaled  the  amount 
of  the  draft,"  and  otherwise  were  to  be 
"payment  pro  tanto,"  plainly  the  agree- 
ment itself  was  not  to  be  treated  as  consti- 
tuting payment  regardless  of  the  value  of 
the  flour.  Taking  the  instructions  on  this 
point  in  their  entirety  we  think  that  their 
fair  import  was  that  the  flnding  of  pay- 
ment in  consequence  of  the  stated  arrange- 
ment was  to  be  reached  only  in  ca&e  the 
value  of  the  flour  was. not  less  than  the 
amount  of  the  draft. 

Moreover,  the  record  does  not  disclose 
a  controversy  as  to  the  value  of  the  flour. 
The  evidence  as  to  this  amply  supported  a 
flnding  that  the  flour  was  at  least  worth 
the  amount  of  the  draft,  and  indeed  it  could 
not  be  said  that  a  different  conclusion  would 
have  had  adequate  support  in  the  proof. 
Mr.  Friedburg,  officer  of  the  Russo-Chinese 
Bank,  testified  that  be  did  not  know  "the 
price  of  the  flour,"  but  that,  so  far  as  he 
knew,  "during  the  siege  of  Port  Arthur 
the  price  of  flour  was  a  little  higher  than 
before  the  outbreak  of  the  war,  but  there 
was  a  lot  of  flour  in  the  go-downs  of  the 
government  and  no  scarcity  was  felt  of  it." 
Mr.  Clarkson  testifled,  referring  to  the  Gins- 
burg  sale:  "The  first  I  heard  was  that  the 
flour  had  been  sold  at  two  roubles  a  sack. 
I  flrmly  believe  at  that  time,  that  as  war 
had  broken  out,  the  flour  that  [416]  was  in 
Port  Arthur  at  the  time  was  worth  fully 
Rbls.  3.00  a  sack;  consequently  I  considered 
that  any  sale  made  at  Rbls.  2.  was  at  least 
one  rouble  below  the  market  value.  To  the 
best  of  my  knowledge  and  belief  the  sell- 
ing price  before  hostilities  commenced  was 
from  Rbls.  2M  to  Rbls.  2.60  a  sack.  .  .  . 
Acting  under  instructions  from  me,  the 
bank  in  Port  Arthur  refused  to  let  Gina- 
60  Ij*  ed. 


I  burg  ft  Company  have  the  flour  at  Rbls. 

1 2.00,  whereupon  Ginsburg  &  Company 
agreed  to  pay  Rbls.  2.40."  Mr.  Short,  when 
asked  "the  market  price  of  the  flour"  at  the 
time  he  left,  said:  "It  was  selling  from 
two  forty  to  two  sizty-flve  roubles  a  sack." 
Mr.  Davidson  testifled  that  there  was  "no 
market  price  of  flour  at  that  time;"  but 
when  asked  whether  "there  were  not  two 
separate  bills  of  sale"  made  by  him  to  Gins- 
burg k  Company  for  that  flour,  one  at  2. 
roubles  and  the  other  at  2.40  roubles,"  he 
answered  that  it  was  "quite  true  there  were 
two  prices"  arranged  by  him,  and  that  "the 
lower  price  was  sufficient  to  meet  the  draft." 
He  added:  "I  made  the  sale  to  Ginsburg  k 
Company  at  what  I  considered  a  fair  mar- 
ket value  under  the  circumstances;  namely, 
that  I  had  to  leave  Port  Arthur,  and  that 
there  was  no  one  there  I  considered  eligible 
to  succeed  me.  The  profit  was  20  to  25 
per  cent,  as  near  as  I  can  remember."  It 
cannot  be  said  that  the  evidence  warranted 
a  finding  that  the  value  of  the  flour  was 
less  than  the  amount  of  the  draft. 

The  Russo-Chinese  Bank  received  the 
draft,  with  documents  attached,  for  collec- 
tion. It  was  instructed  that  "documents 
are  to  be  delivered  on  payment."  It  was 
on  these  terms  that  it  was  intrusted  with 
the  bill  of  lading,  indorsed  in  blank,  which 
represented  the  flour.  It  was  its  plain  duty 
not  to  permit  Clarkson  k  Company,  upon 
whom  the  draft  was  drawn,  to  have  the  con- 
trol and  disposition  of  the  flour  until  the 
draft  was  paid.  See  Milwaukee  Nat.  Bank 
V.  City  Bank,  103  U.  S.  608,  670,  671,  26 
L.  ed.  417,  418.  It  is  no  answer  to  say 
that  Clarkson  k  Company  were  the  agents 
of  the  steamship  [417]  company,  for,  while 
they  might  be  able  to  obtain  custody  of  the 
flour,  it  would  only  be  in  their  capacity  as 
such  agents,  and  without  the  right  of  dis- 
position. Nor  was  the  case  altered  by  the 
acceptance  of  the  draft,  for  the  condition 
attached  to  the  delivery  of  the  flour  with 
the  ju9  diaponendi  was  payment,  not  accept- 
ance. If,  in  these  circumstances,  the  bank 
entered  into  an  agreement  with  Clarkson  k 
Company,  as  was  testifled,  that  the  latter 
were  to  take  over  the  flour  and  sell  it, 
promising  to  account  for  the  proceeds,  this 
was  manifestly  a  misappropriation  of  the 
property,  and  there  arose  in  consequence 
liability  to  account  for  its  value.  This 
action  was  brought  by  the  Russo-Chinese 
Bank  to  recover  money  which  it  had  paid 
to  the  Seattle  bank,  and,  with  respect 
neither  to  the  express  promise  to  refund 
nor  the  promise  implied  in  law,  can  it  be 
said  that  the  plaintiff  was  entitled  to  suc- 
ceed if»  at  tae  time  of  the  payment  to  the 
Seattle  bank,  it  paid  merely  what  it  owed. 
There  U  no  theory  which  permits  it  to 

1071 


417-419  SUPREME  CX)URT  OF  THE  UNITED  STATES.  Ocr.  Tbim, 


recover,  save  that  it  paid  under  a  mistake 
of  fact;  that  is,  that  upon  the  actual  facts 
it  was  not  liable  to  make  the  payment  it 
did   make.    If,   however,   it  appeared  that 


relation  to  the  commercial  paper  involved, 
was  entitled  to  demand  an  accounting  from 
its  correspondent,  and  on  the  same  ground 
to  resist  this  action  for  the  recovery  back 


the  value   of   the  flour   was  equal   to  the  of  the  money  which  it  had  received  upon 

amount  of  the  draft,  and  it  was  found  that  the  draft. 

the  bank,  contrary  to  its  instructions,  had  As  we  discover  no  error  in  the  record, 

permitted  Clarkson  &  Company  to  take  and  the  judgment  must  be  affirmed. 

dispose  of  the  flour,   it   would  necessarily  Judgment  affirmed. 

follow   that   the   Russo-Chinese   Bank   was 

accountable    to    the    Seattle    bank    to    the  ■ 

amount  of  the  draft,  and  was  in  the  same 

position,  so  far  as  the  right  of  the  Seattle  [419]  ST.  LOUIS  k  KANSAS  CITY  LAND 

bank  against  it  was  concerned,  as  if  it  had  COMPANY,      Chicago,      Burlington,     ft 

received  the  avails  of  the  draft.    It  could  Quincy  Railroad  Company,  et  al.,  Plffs.  in 

not,  by  an  agreement  in  violation  of   its  Err., 

duty,  invest  Clarkson  &  Company  with  the  ^* 

right   of   disposition,   without   accountabil-  KANSAS  CITY. 

ity.    The  instruction,  to  which  we  have  re-  ,^      «^«        ,.      *..*^-—  . 

ferred,  affords  no  ground  for  reversal.  ^^ee  S.  C.  Reporter's  ed.  419-431.) 

Error  is  also  assigned  with  respect  to  the  ^^^^  ^  ^^^  ^^^  _  ^,  ^^^ 
instruction  to  the  jury  that  the  Russo-  «  qoestlons  of  local  Uw. 
Chinese  Bank  became  invested  with  the  title  i,  j^^  extent  of  the  authority  eon- 
and  ownership  of  the  flour,  and  that  it  ferred  upon  a  city  by  its  charter  with  re- 
could  [418]  not  be  excused  from  an  obliga-  spect  to  assessments  for  beneflts  to  pay  an 
tion  to  account  by  saying  that  the  flour  had  award  for  property  condemned  for  street 
disappeared  without  its  knowledge.  It  is  widening  purposes,  the  construction  of  the 
argued  that  the  relatior  between  the  banks  Korc-On  the  general  subject  of  wriU  of 
was  that  of  principal  and  agent,  not  of  error  from  the  United  States  Supreme  Court 
vendor  and  vendee;  that  it  took  the  draft  to  state  courts— see  notes  to  Martin  v.  Hun- 
for  collection.  But  the  charge,  as  we  view  ter,  4  L.  ed.  U.  S.  97;  Hamblin  v.  Western 
it,  was  not  to  the  effect  that  the  relation  Land  Co.  37  L.  ed.  U.  S.  267 ;  JKe  Buchanan, 
of  vendor  and  vendee  was  created,  but,  on  39  L.  ed.  U.  S.  884,  and  Kipley  v.  Illinois, 
the   contrary,   it  was  distinctly   stated  to  ^2  L.  ed.  U.  8.  998. 

the  jury  that  the  Rus8o-C»iinese  Bank  "was  ^  ^°  ^^*^  questions  the  Federal  Supreme 

obligated  as  an  agent  to  act  in  good  faith  ^"^^  will  consider  in  reviewing  the  judg- 

jT      a    X  Ai.      .  UA      *  i.u    XT  X-       in     1  ments  of  state  courts — see  note  to  Missouri 

and  protect  the  rights  of  the  National  Bank  ^  ^^i  jjiu  ^   Dockery,  63  L.R.A.  671. 

of  Commerce  in  the  collection  of  the  draft,"  As  to  what  constitutes  due   process  of 

and  that,  as  "the  agent"  for  the  owner,  it  law,    generally — see    notes    to    People    v. 

"was  obligated  to  account  for  the  amount  O'Brien,  2  L.R.A.  255;  Kuntz  v.  Sumption, 

of  the  draft,  to  account  for  the  security  2  L.R.A.  655;   Re  Gannon,  5  L.R.A.  350; 

which  the  bill   of  lading  constituted,"    In  Ulman  v.  Baltimore,  11  L.R.A.  224;  Oilman 

view  of  the  special  flnding  that  the  draft  ^- ,?*?^^;  ^^>?;^«^^A?-^**'r«,M   ^^'** 

had  been  paid,  it  is  not  necessary  to  inquire  ^•"'24  L.  ed.  U    S.  436,  and   Wilson  v, 

—  ♦«  ™i.!Ui.  i  ♦i,^.^  ^ ij     *u    -,•       u  North  Carolina,  42  L.  ed.  U.  S.  865. 

as  to  whether  there  would  otherwise  have  .^^  ^^^^  ^^  i^^^i              i^^  generally 

been  liability  on  the  part  of  the  plaintiff  ^  constitute  due  process  of  law— see  notes 

because  of  a  failure  to  exercise  reasonable  to  Kuntz  v.  Sumption,  2  L.RJL.  657 ;  Chau- 

care.    The    special    flnding,    supported    by  vin  v,  Valiton,  3  L.R.A.  194,  and  Ulman  v. 

adequate  evidence,  was  based,  under  the  in-  Baltimore,  11  L.R.A.  225. 

structions  of  the  court,  upon  the  transac-  As  to  the  validity  of  class   l^slation, 

tion  with   Clarkson   &  Company  to  wliich  generally— see  notes  to  State  y.  w>odwill, 

we  have  referred,  and  it  must  be  deemed  S„L.R.A.  621,  and  State  v.  Loomis,  21  LJIA. 
controlling.     We   flnd   no   instruction    with 


reference  to  that  transaction,  or  its  legal 
effect  if  found  to  be  as  testifled,  which  was 
prejudicial  to  the  plaintiff. 

Complaint  is  also  made  with  respect  to 
certain  requests  for  instructions  and  rul- 
ings on  the  admission  of  evidence,  but  they 
are  wholly  without  merit  and  it  is  unneces- 
sary to  review  them.  It  is  said  that  the 
Seattle  bank  suffered  no  loss  because  it  had 
a  guaranty  from  the  Centennial  Mill  Com< 


789. 

As  to  constitutional  equality  of  privileges, 
immunities,  and  protection,  senerally — see 
note  to  Louisville  Safety  Vault  ft  T.  Co.  v. 
Louisville  ft  N.  R.  Go.  14  L.R.A.  679. 

On  the  necessity  of  providing  In  statute 
for  notice  and  hearing  on  question  of  dam- 
ages or  compensation  in  eminait  domsin 
proceedings — see  note  to  Sterritt  ▼.  Young* 
4  L.R.A.(N.S.)    169. 

On  landowner's  right  to  notice  and  hesr- 
ing  with  respect  to  assessments  for  improve- 
ments— see  note  to  Chicago,  M.  ft  St.  P.  R. 


pany;  but  the  Seattle  bank,  in  view  of  its    Co.  v.  Janesville,  28  LJLA.(KJ3.)  1201. 
1072  '^^  U.  S. 


1916. 


ST.  LOmS  &  K.  C.  LAND  CO.  t.  KANSAS  CITY. 


yariouf  proTisionf  of  the  charter,  the  valid- 
Ibr,  scope,  and  effect  under  the  ftate  law 
of  the  ordinances  adopted  by  the  city,  the 
scope  and  effect  of  the  original  and  supple- 
mentary proceedings,  and  the  rights  of  the 
parties  thereto  under  the  state  law,  are  all 
state  questions,  as  to  which  the  decision  of 
the  state  court  is  controlling  on  writ  of 
error  from  the  Federal  Supreme  Court. 

[For  other  cases,  tee  Appeal  and  Error,  2072- 
2226,  in  Dlffest  Sop.  Ct.  1908.] 

£rror  to  state  court  —  scope  of  rcTiew 

—  non-Federal  question. 

2.  The  ruling  of  a  state  court  as  to 
the  effect  with  respect  to  a  supplemental 
curative  proceeding  to  assess  benefits  from 
the  widening  of  a  street  of  a  decree  in  a 
court  of  the  same  state,  holding  the  original 
assessments  void  for  want  of  the  required 
notice  as  to  the  complainant  in  that  suit 
and  certain  interveners,  does  not  present  a 
Federal  question  which  may  be  reviewed  by 
the  Federal  Supreme  Court  on  writ  of  er- 
ror. 

[For  other  cases,  see  Appeal  and  Error,  2072- 
2226,  In  Digest  Sup.  Ct.   1908.] 

Constitutional  lavr  —  due  process  off  law 

—  public  improremeutfit  —  hearing. 

3.  Owners  of  property  assessed  for 
benefits  from  the  widening  of  a  street  are 
not  entitled,  by  virtue  of  the  due  process 
of  law  clause  of  U.  S.  Const.,  14th  Amend., 
to  be  heard  either  in  the  original  or  sup- 
plemental curative  proceedings  upon  the 
amounts  of  the  awards  to  the  owners  of  the 
property  condemned,  although  the  city 
charter  provides  a  single  proceeding,  em- 
bracing lx>th  the  proposed  condemnation  and 
the  assessment  for  benefits,  and  requires  no- 
tice to  the  property  owner  within  the  bene- 
fit district. 

[For  other  cases,  see  Constitutional  Law,  746- 
763,  In  Digest  Sup.  Ct.  1908.] 

Constitutional   law  —  equal   protection  ^  _. 
of  the  laws  *—  public  improvements.     |  I 

4.  The  equal  protection  of  the  laws  is  "^ 
not  denied  to  the  owners  of  property  as- 
sessed in  a  supplemental  curative  proceed- 
ing for  benefits  from  the  widening  of  a . 
street,  without  any  opportunity  to  be  heard 
upon  the  amounts  of  the  awards  to  the  own- 
ers of  the  property  cocJeraned,  because  in 
the  original  proceeding  there  was  such  op- 
portunity, together  with  a  right  to  appeal, 
where  the  asserted  inequality  springs  solely 
from  the  fact  that  certain  assessed  owners, 
despite  the  defect  in  the  publication  of  no- 
tice in  the  original  proceeding,  appeared 
and  acquiesced  herein. 

[For  other  cases,  see  Constitutional  Law,  871- 
379,  Id  Digest  Sup.  Ct.  1908.] 

Constitutional  law  *—  due  process  of  law 
-^qual  protection  of  the  laws  —  pub- 
lic Improvements. 
6.  The  owners  of  property  sought  to  be 
assessed   in   a   supplemental  curative   pro- 
ceeding for  benefits  from  tiie  widening  of 
a  street  are  not  entitled,  by  virtue  of  U.  S. 
Const.,  14th  Amend.,  to  a  redetermination 
of  the  assessments  laid  upon  the  property 
of  other  owners  in  the  oriffinal  proceedings, 
which  those  owners,  despite  the  defects  in 


such    original    proceedings,    accepted    and 

paid. 

[For  other  cases,  see  Constltutlenal  Law,  871- 
879,  6C9-681,  In  Digest  Sup.  Ct.  1908.] 

S^rror  to  state  court  —  scope  off  review 

—  non-Federal  question. 

6.  Whether  the  assessment  of  benefits 
in  street-widening  proceedings  upon  a  por- 
tion  of  one's  property  is  in  effect  an  ad- 
ludicatioB  that  the  other  portions  were  not 
benefited,  so  as  to  preclude  their  assess- 
ment in  supplemental  curative  proceedings, 
is  a  question  of  state  law  which  is  not  open 
for  review  in  the  Federal  Supreme  Court 
on  writ  of  error  to  a  state  court. 
[For  other  cases,  see  Appeal  and  Error,  2072- 

2226,  In  Digest  Sup.  Ct   1908.] 

Conatltntlonal  law  —  due  process  off  law 
-^ual  protection  off  the  laws  —  pub- 
lic Improvements. 

7.  There  is  nothing  in  the  Federal  Con- 
stitution to  prevent  the  assessment  in  sup- 
plemental curative  proceedings  for  bene- 
fits from  the  widening  of  a  street  of 
property  omitted  from  the  original  pro- 
ceeding. 

[For  other  cases,  see  Constitutional  Law.  871- 
879,  659-«8irin  Digest  Sup.  Ct.  1908.  J 

Constitutional     law  —  application     off 

Federal  Constitution  to  states. 

8.  State  courts  are  not  bound  by  the 

provision  of  U.  S.  Const.,  7th  Amend.,  that 

no  fact  tried  by  a  jury  shall  be  otherwise 

re-examined   in   any  court  of   the  United 

States  than  according  to  the  rules  of  the 

common  law. 

[For  other  cases,  see  Constitutional  Law,  II. 
b,  in  Digest  Sup.  Ct.  1908.] 

[No.  261.] 

Argued  March  7«  1916.     Decided  June  6, 

1916. 

N  ERROR  to  the  Supreme  Court  of  the 
State  of  Missouri  to  review  a  judgment 
which  affirmed  a  judgment  of  the  Circuit 
Court  of  Jaclcson  County,  in  that  state,  en- 
forcing assessments  for  benefits  from  the 
widening  of  a  street.    Affirmed. 

See  same  case  below,  260  Mo.  396,  169 
S.  W.  62. 

The  facts  are  stated  in  the  opinion. 

Messrs.  I.  N.  Watson,  Kenneth  McC. 
Deweese,  and  H.  M.  liangworthy  argued 
the  cause,  and,  with  Mr.  Edward  White, 
filed  a  brief  for  plaintiffs  in  error: 

In  condemnation  proceedings  property 
owners  whose  properties  are  sought  to  be 
charged  with  benefits  to  pay  damages  for 
property  taken  or  damaged  are  entitled  to 
notice  and  opportunity  to  be  heard  in  order 
to  ccmstitute  due  process  of  law. 

St.  Louis  V.  Ranken,  96  Mo.  505,  9  S.  W. 
910;  St.  Louis  v.  Brinckwirth,  204  Mo.  302, 
102  S.  W.  1091;  Davidson  v.  New  Orleans, 
96  U.  S.  97,  24  L.  ed.  616;  Hagar  v.  Rec- 
lanuktion  Diet.  Ill  U.  S.  701,  28  L.  ed.  569, 
4  Sup.  Ct.  Rep.  663;  Londoner  T.  Denver, 


60  li.  ed. 


68 


107S 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  Tbbm, 


210  U.  S.  375,  52  L.  ed.  1108,  28  Sup.  a. 
Rep.  708. 

(a)  Such  proceedings  are  in  violation  of 
common  law  and  common  right,  and  the 
utmost  strictness  is  required  in  order  to 
give  validity  to  them. 

Ells  V.  Pacific  R.  Go.  51  Mo.  203;  Whit- 
ely  T.  Platte  County,  73  Mo.  30;  Zimmer- 
man V.  Snowden,  88  Mo.  220;  Anderson  v. 
Pemberton,  89  Mo.  65, 1  S.  W.  216;  Chicago, 
R.  I.  &  P.  R.  Co.  V.  Young,  96  Mo.  42,  8  S. 
W.  776;  Williams  v.  Kirby,  169  Mo.  622,  70 
S.  W.  140;  Spurlock  v.  Doman,  182  Mo. 
242,  81  S.  W.  412;  Tarkio  v.  Clark,  186 
Mo.  285,  85  S.  W.  329. 

(b)  Section  16  of  Article  9  of  the  Con- 
stitution of  Missouri  requires  all  courts  to 
take  judicial  notice  of  the  provisions  of  the 
charter  of  Kansas  City. 

Walsh  V.  Missouri  P.  R.  Co.  102  Mo.  589, 
14  S.  W.  873,  16  S.  W.  757;  St.  Louis  v. 
Lang,  131  Mo.  412,  33  S.  W.  54. 

(c)  Publication  of  the  court's  order  for 
four  consecutive  weeks,  the  last  insertion 
to  be  not  more  than  one  week  prior  to  the 
date  set  for  impaneling  the  jury,  was  a 
jurisdictional  fact  necessary  to  give  the 
municipal  court  jurisdiction  to  hear  and  de- 
termine the  cause. 

Kansas  City  v.  Duncan,  185  Mo.  580,  37 
S.  W.  513 ;  St.  Louis  v.  Brinckwirth,  204  Mo. 
302,  102  S.  W.  1091 ;  St.  Louis  v.  Ranken, 
96  Mo.  505,  9  S.  W.  910 ;  St.  Louis  v.  Koch, 
169  Mo.  591,  70  S.  W.  143. 

This  record  shows  that  no  legal  notice  was 
given  to  property  owners  in  the  benefit  dis- 
trict of  the  proceedings,  and  such  property 
owners  had  no  opportunity  to  be  heard  in 
said  proceedings. 

The  judgment  in  condemnation  proceed- 
ings is  rea  judicata  as  to  the  particular  facts 
held  in  judgment. 

Union  Depot  Co.  v.  Frederick,  117  Mo. 
148,  21  S.  W.  1118,  1130,  26  S.  W.  360; 
Burke  v.  Kansas  City,  118  Mo.  309,  24  S.  W. 
48;  New  Madrid  County  v.  Phillips,  125 
Mo.  61,  28  S.  W.  321. 

There  was  but  one  cause,  one  proceeding, 
one  order,  one  jury,  one  verdict,  and  one 
Judgment. 

State  ex  rel.  Holden  v.  Gill,  84  Mo.  248; 
Kansas  City  v.  Mulkey,  176  Mo.  247,  76  S. 
W.  973;  Kansas  City  v.  Hennegan,  152  Fed. 
249;  Anderson  ▼.  Pemberton,  89  Mo.  66,  1 
S.  W.  216. 

In  this  statutory  and  summary  proceed- 
ing,— this  l^gal  coupe  de  main,  in  deroga- 
tion of  common  law  and  common  right, — 
the  utmost  strictness  is  required  in  order  to 
give  validity;  and  unless,  upon  the  face  of 
the  proceedings  had,  it  affirmatively  appears 
that  every  essential  prerequisite  of  the 
statute  conferring  the  authority  has  been 
fully  complied  with,  every  step,  from  in- 
1074 


ception  to  termination,  will  be  oomm  «o» 
judice. 

Whitely  v.  Platte  County,  7S  Mo.  30;  Col- 
ville  V.  Judy,  73  Mo.  651;  EUs  t.  Pacific 
R.  Go.  51  Mo.  200. 

The  charter  of  Kansas  City  has  intrusted 
the  estimate  of  damages  and  the  assessment 
of  benefits  to  the  same  Jury,  and  there  are 
many  precedents  for  intrusting  the  per- 
formance of  both  duties  to  the  same  per- 
sons. 

Bauman  v.  Ross,  167  U.  S.  693,  42  L.  ed. 
289,  17  Sup.  Ct.  Rep.  966. 

In  the  supplemental  proceedings  plain- 
tiffs  in  error  were  denied  rights  accorded 
property  owners  in  the  benefit  district  in  an 
original  proceeding,  and  their  property 
taken  without  due  process  of  law,  and  they 
were  denied  the  equal  protection  of  the  law, 
in  violation  of  the  14th  Amendment  to  the 
Constitution  of  the  United  States. 

Stae  ex  rel.  Tuller  v.  Seehom,  246  Mo. 
577,  151  S.  W.  724;  Goodrich  v.  Detroit,  184 
U.  S.  432,  46  L.  ed.  627,  22  Sup.  Ct  Rep. 
397;  Kansas  City  v.  Duncan,  136  Mo.  580, 
37  S.  W.  513;  St.  Louis  v.  Meier,  77  Mo. 
13;  Stuart  v.  Palmer,  74  N.  Y.  183,  30  Am. 
Rep.  289;  Sp«icer  ▼.  Merchant,  126  U.  S. 
346,  31  L.  ed.  763,  8  Sup.  Ct  Rep.  921; 
Davidson  v.  New  Grleans,  96  U.  8.  97,  24  L. 
ed.  616;  Hagar  v.  Reclamation  Dist  111  U. 
S.  701,  28  L.  ed.  669,  4  Sup.  Ct  Rep.  663; 
Londoner  v.  Denver,  210  U.  S.  373,  385,  52 
L.  ed.  1103,  1112,  28  Sup.  Ct  Rep.  708; 
Pittsburgh,  C.  C.  ft  St.  L.  R.  Go.  ▼.  Backus, 
164  U.  S.  426,  38  L.  ed.  1036,  14  Sup.  Ct 
Rep.  1114;  Fallbrook  Irrig.  Dist  v.  Brad- 
ley, 164  U.  a  11^171,  41  L.  ed.  369-393, 17 
Sup.  Ct  Rep.  66. 

A  reassessment  was  a  re-examination  of  a 
fact  decided  by  a  jury  which  could  not  be  re- 
examined under  the  Constitution  of  the 
state  of  Missouri  or  under  the  second  clause 
of  the  7th  Amendment  to  the  Constitution 
of  the  United  States  without  depriving  the 
Union  Depot  Bridge  ft  Terminal  Railroad 
Company  of  its  property  without  due  process 
of  law. 

Chicago,  B.  ft  Q.  R.  Go.  t.  Chicago,  166  U. 
S.  243-263,  41  L.  ed.  987-994,  17  Sup.  Ct 
Rep.  581. 

The  jury  were  permitted  in  this  supple- 
mental proceeding  to  make  another  assess- 
ment of  benefits  against  its  property  with- 
out any  notice  other  than  the  supplemoital 
ordinance  and  notice  thereunder  to  the 
Union  Depot  Bridge  ft  Terminal  Railroad 
Company,  that  the  city  deemed  any  of  its 
property  had  been  omitted,  or  that  a  proper 
assessment  had  not  been  made  against  this 
property.  Plaintiffs  in  error  therefore  con- 
tend that  the  ordinance  and  the  order  of 
publication  thereunder  were  not  sufficient  to 
constitute  due  process  of  law  against  the 

141  V.  & 


1915. 


8T.  LOUIS  A  K.  C.  LAND  CX>.  y.  KANSAS  CITY. 


Union  Depot  Bridge  ft  Terminal  Railroad 
Company. 

Bellingham  Bay  ft  B.  C.  R.  Co.  v.  New 
Whatcom,  172  U.  S.  314,  43  L.  ed.  460,  19 
Sup.  Ct.  Rep.  205. 

Plaintiffs  in  error  were  entitled  to  a  hear- 
ing in  relation  to  the  proportion  each  piece 
of  property  should  bear  to  the  whole  cost  of 
the  improvement  in  the  benefit  district. 

Voigt  V.  Detroit,  184  U.  S.  115,  46  L.  ed. 
459,  22  Sup.  Ct.  Rep.  337. 

The  exaction  from  the  owner  of  private 
property  of  the  cost  of  a  public  improve- 
ment in  substantial  excess  of  the  special 
benefits  accruing  to  him  is,  to  the  extent 
of  such  excess,  a  taking,  under  the  guise  of 
taxation,  of  private  property  for  public  uses 
without  compensation. 

Fallbrook  Irrig.  Dist.  v.  Bradley,  164  U. 
S.  174,  41  L.  ed.  394,  17  Sup.  Ct.  Rep.  56; 
Norwood  V.  Baker,  172  U.  S.  279,  43  L.  ed. 
447,  19  Sup.  Ct.  Rep.  187;  French  v.  Barber 
Asphalt  Paving  Co.  181  U.  S.  340,  341,  45  L. 
ed.  888,  889,  21  Sup.  Ct.  Rep.  625;  Lon- 
doner V.  Denver,  210  U.  S.  373,  52  L.  ed. 
1103,  28  Sup.  Ct.  Rep.  708. 

The  decision  of  the  state  supreme  court  in 
this  case  is  more  than  the  mere  construc- 
tion of  a  local  statute.  The  effect  of  it  is 
to  arbitrarily  take  away  from  the  plaintiffs 
in  error  and  other  property  owners  in  the 
benefit  district  valuable  rights,  which  were 
clearly  granted  them,  and  in  the  case  of  the 
Union  Depot,  Bridge,  ft  Terminal  Company 
it  appears  that  property  was  acquired  by 
it  during  the  time  that  those  rights  were 
plainly  in  existence.  This  construction  of 
the  charter  amounted  to  the  unlawful  taking 
of  property,  and  was  an  impairment  of  con- 
tractual rights  as  welL 

Muhlker  v.  New  York  ft  H.  R.  Co.  197  U. 
S.  544,  49  L.  ed.  872,  25  Sup.  Ct.  Rep.  522. 

Messrs.  I.  K.  Watsoa,  H.  M.  Langworthy, 
Edward  White,  Kenneth  McC.  De  Weese,  and 
£.  M.  Jones  also  filed  a  brief  for  plaintiffs 
in  error  on  motion  to  dismiss  or  aiBrm. 

Messrs.  Jesse  C.  Petherbrldge  and  Ar- 
tbnr  F.  Smith  argued  the  cause,  and,  with 
Mr.  Andrew  F.  Evans,  filed  a  brief  for  de- 
fendant in  error: 

The  assessment  of  benefits  to  pay  for  land 
taken  in  the  widening  of  a  public  street  is 
the  exercise  of  the  taxing  power  of  a  munici- 
pality, as  distinguished  from  the  exercise  of 
its  power  of  eminent  domain,  and  therefore 
is  not  taking  private  property  without  due 
process  of  law,  if  notice  of  the  time  and 
place  of  the  proposed  assessment  is  given, 
as  was  done  in  this  case;  and  plaintiffs  in 
error  were  not  denied  the  equal  protection 
of  the  law,  in  violation  of  the  14th  Amend- 
ment of  the  Federal  Constitution. 

Goodrich  v.  Detroit,  184  U.  S.  432,  437,  46 
«0  li.  ed. 


L.  ed.  627,  630,  22  Sup.  Ct.  Rep.  397 ;  Voigt 
V.  Detroit,  184  U.  S.  115,  122,  46  L.  ed.  459, 
462,  22  Sup.  Ct.  Rep.  337 ;  Lombard  v.  West 
Chicago  Park  Comrs.  181  U.  S.  33,  45  L.  ed. 
731,  21  Sup.  Ct.  Rep.  507;  Londoner  v.  Den- 
ver, 210  U.  S.  373,  378,  52  L.  ed.  1103,  1109, 
28  Sup.  Ct.  Rep.  708;  WUloughby  v.  Chi- 
cago, 235  U.  S.  45,  59  L.  ed.  123,  35  Sup. 
Ct.  Rep.  23;  State  ex  reL  TuUer  v.  Seehom, 
246  Mo.  583,  151  S.  W.  724;  Kansas  City 
V.  St.  Louis  ft  K.  C.  Land  Co.  260  Mo.  395, 
169  S.  W.  62;  St  Louis  t.  Ranken,  96  Mo. 
507,  9  S.  W.  910;  Kansas  City  ▼.  Ward,  134 
Mo.  172,  35  8.  W.  600. 

The  plaintiffs  in  error,  not  being  the 
owners  of  any  of  the  property  taken  in  the 
original  proceeding,  were  not  necessary  par- 
ties thereto,  and  were  not  entitled  to  notice 
of  such  original  proceedings. 

Goodrich  v.  Detroit,  184  U.  8.  432,  46 
L.  ed.  627,  22  Sup.  Ot.  Rep.  397;  Voigt  v. 
Detroit,  184  U.  S.  115,  120,  46  L.  ed.  459, 
461,  22  Sup.  Ct.  Rep.  337;  Weyerhaueser 
v.  Minnesota,  176  U.  S.  550,  44  L.  ed.  583,  20 
Sup.  Ct.  Rep.  485 ;  Spencer  v.  Merchant,  125 
U.  S.  345,  31  L.  ed.  763,  8  Sup.  Ct.  Rep. 
921;  1  Page  ft  J.  Taxn.  p.  213;  State  ex  rel. 
TuUer  v.  Seehom,  246  Mo.  583,  151  8.  W. 
724;  Kansas  City  v.  St.  Louis  ft  K.  C.  Land 
Co.  260  Mo.  395,  169  S.  W.  62;  St.  Louis  t. 
Ranken,  96  Mo.  507,  9  S.  W.  910;  St.  Louis 
V.  Brinckwirth,  204  Mo.  303,  102  S.  W. 
1091;  St  Louis  V.  Calhoun,  222  Mo.  53,  120 
S.  W.  1152;  Kansas  City  v.  Ward,  134  Mo. 
179,  35  S.  W.  600. 

The  construction  placed  on  a  statute  of 
a  state,  or  on  an  ordinance  or  charter  pro- 
vision of  a  city  in  such  state,  by  the  highest 
judicial  tribunal  of  that  state,  will  be  fol- 
lowed by  this  court 

King  T.  Portland,  184  U.  S.  61,  46  L.  ed. 
431,  22  Sup.  Ct.  Rep.  290;  Baltimore  Trac- 
tion Co.  ▼.  Baltimore  Belt  R.  Co.  151  U.  S. 
137,  38  L.  ed.  102,  14  Sup.  Ct  Rep.  294; 
Long  Island  Water  Supply  Co.  y.  Brooklyn, 
166  U.  S.  685,  41  L.  ed.  1165,  17  Sup.  Ct 
Rep.  718;  Louisville,  N.  0.  ft  T.  R.  Co.  t. 
Mississippi,  133  U.  8.  587-^90,  33  L.  ed. 
784,  785,  2  Inters.  Com.  Rep.  801,  10  Sup. 
Ct  Bap.  348;  Merchants'  ft  M.  Nat  Bank  v. 
Pennsylvania,  167  U.  8.  461,  42  L.  ed.  236, 
17  Sup.  Ct  Rep.  829;  Willoughby  t.  Chi- 
cago, 235  U.  S.  45,  59  L.  ed.  123,  35  Sup. 
Ct  Rep.  23;  Minnesota  Iron  Co.  t.  Kline, 
199  U.  8.  593,  50  L.  ed.  322,  26  Sup.  Ct.  R^. 
159,  19  Am.  Neg.  Rep.  625. 

Proceedings  under  the  Kansas  City  char- 
ter were  valid. 

'  State  ex  rel.  Tuller  t.  Seehorn,  246  Ma 
583,  151  S.  W.  724;  Kansas  City  t.  St 
Louis  ft  K.  C.  Land  Co.  260  Ma  395,  169 
S.  W.  62. 

I     A  decision  by  the  state  supreme  ooart 
'  that  the  formalities  of  the  state  or  muniei- 

1075 


420-422 


SUPREME  COyRT  OF  THE  UNITED  STATEa 


Oct.  Temm, 


pal  taxing  laws  luiTe  been  observed  presents 
BO  Federal  question  where  the  contention  is 
that  the  manner  of  their  obserrance  was  a 
denial  of  due  process  of  law. 

French  v.  Taylor,  199  U.  S.  274,  50  L.  ed. 
189,  26  Sup.  Ct.  Rep.  76;  C(Mrry  v.  Camp- 
bell, 164  U.  S.  629,  and  24  L.  ed.  026,  14 
Sup.  Ct.  Rep.  1183. 

The  original  proceedings  were  valid  as  to 
those  who  abided  the  judgment. 

State  ex  rel.  Tuller  v.  Seehom,  supra. 

The  judgment  in  the  Union  Pacific  in- 
junction case  affected  only  the  rights  of 
plaintiffs  in  error  as  to  their  assessments  in 
the  original  proceeding. 

Kansas  City  ▼.  St.  Louis  ft  K.  C.  Land 
Co.  supra. 

The  provisions  of  the  charter  of  Kansas 
City,  Missouri,  are  regarded  as  having  the 
same  force  as  a  legislative  enactment,  and 
ordinances  passed  in  pursuance  thereof  are 
binding. 

Morrow  ▼.  Kansas  City,  186  Mo.  683,  86 
8.  W.  572;  McGhee  v.  Walsh,  249  Mo.  266, 
155  S.  W.  445 ;  Ex  parte  Smith,  231  Mo.  122, 
182  S.  W.  607. 

The  charter  of  Kansas  City  is  a  public  act 
of  which  the  courts  take  judicial  notice. 

Kansas  City  v.  Smart,  128  Mo.  298,  30 
S.  W.  773. 

Mr.  Justice  Hughes  delivered  the  opinion 
of  the  court: 

This  was  a  supplemental  proceeding  to 
assess  certain  parcels  of  land  in  Kansas 
City,  Missouri,  for  benefits.  The  assess- 
ments were  for  the  purpose  of  meeting  an 
unpaid  portion  of  damages  which  had  been 
awarded  for  property  condemned  in  widen- 
ing Sixth  street.  Judgment  for  the  assess- 
ments was  entered  on  the  verdict  of  a  jury 
and  was  afiSrmed  by  the  supreme  court  of 
Missouri,  m  hone,  260  Mo.  395,  169  S.  W. 
62.  This  writ  of  error  is  prosecuted  by 
owners  of  property  thus  assessed. 

In  October,  1909,  the  common  council  of 
Kansas  City  passed  an  ordinance  providing 
for  the  condemnation  of  property  within 
specified  limits,  and  for  the  raising  of  the 
amount  of  the  award  by  special  assessments 
against  property  within  a  described  benefit 
district,  in  accordance  with  article  6  of  the 
city's  charter.  Proceedings  accordingly 
[421]  were  then  brought  in  the  municipal 
court  of  Kansas  City,  resulting  in  an  award 
of  $166,299J^7  for  property  taken  and  in  the 
maldng  of  assessments  of  like  amount  for 
benefits.  There  were  over  13,000  different 
tracts  within  the  benefit  district.  No  ap- 
peal was  taken  from  the  judgment.  The 
city  collected  on  the  assessments  about 
$89,000.  It  was  discovered  that  the  publi- 
eation  of  the  required  notice  of  the  pro- 
ceeding was  defective,  and  in  aa  appropriate 
1076 


suit  in  equity,  brought  by  the  Union  Pacific 
Railroad  Company,  a  decree  was  obtained 
in  favor  of  that  company,  and  of  certain 
interveners,  annulling  the  assessments 
against  their  properties;  and  no  appeal  waa 
taken  from  that  decree. 

Thereupon,  Kansas  City  attempted  to  re- 
peal the  original  ordinance,  presumably — as 
the  state  court  suggests — ^for  the  purpose 
of  abandoning  the  proceeding  and  returning 
the  assessments  paid.  At  the  suit  of  owners 
of  the  land  condemned — who  were  entitled 
to  the  awards — decree  was  entered  enjoin- 
ing the  city  from  abandoning  the  con- 
demnation proceedings.  The  city  then 
enacted  a  "supplemental  or  curative  ordi- 
nance," basing  its  action  on  the  authority 
of  §  231  of  article  6  of  the  city's  charter. 
[422]  "The  object  of  said  sensible  charter 

1  Section  23  is  as  follows: 

"Sec.  23.  Defective  proceedings — supple- 
mental.— When  by  reason  of  any  error, 
defect,  or  omission  in  any  proceedings,  or  in 
the  verdict  or  judgment  therein  that  may  be 
instituted  under  tne  provisions  of  this  arti- 
cle, a  portion  of  the  private  property  sought 
to  be  taken,  or  some  interest  therein,  cannot 
be  acquired,  or  an  assessment  is  made 
against  private  property  which  cannot  be 
enforced  or  collected,  or  when,  by  reason  of 
any  such  defect,  private  property  in  the 
benefit  district  is  omitted,  the  city  may,  by 
ordinance,  institute,  carry  on  and  maintain 
supplemental  proceedings  to  acquire  tlie 
right  and  title  to  such  property  or  interest 
therein  intended  to  be  taken  by  the  first 
proceeding,  but  which  cannot  on  account  of 
such  defect,  error  or  omission,  be  acquired 
thereunder,  or  to  properly  assess  against 
any  piece  or  parcel  of  private  property 
against  which  an  assessment  was  in  the  first 
proceeding  erroneously  made  or  omitted  to 
be  made,  the  proper  amount  such  private 
property,  exclusive  of  the  improvements 
thereon,  is  benefited  by  the  proposed  im- 
provement to  be  determined  by  the  verdict 
of  the  jury  in  such  supplemental  proceedings ; 
and  the  original  assessments  may  be  revived, 
corrected,  increased  or  diminished  as  ma^ 
be  necessary  or  equitable  under  the  provi- 
sions of  this  article  for  the  original  pro- 
ceedings. Such  supplemental  proceedings 
shall  he  instituted  and  conducted  as  to  the 
particular  piece  or  pieces  of  private  prop- 
erty sought  to  be  acquired  or  assessed  in 
like  manner  and  with  like  effect  as  in  the 
original  proceedings,  and  shall  be  known  and 
described  as  supplemental  proceedings  for 
the  purposes  specified  in  the  original  ordi- 
nance; and  a  supplemental  verdict  and 
assessment  shall  be  made,  confirmed  and 
copies  of  the  original  verdict  certified  in 
every  particular  as  in  the  original  proceed- 
ings ;  and  the  assessmmts  as  establisned  and 
corrected  by  such  supplemental  verdict  shall 
be  collected  by  the  city  treasurer  in  the  same 
manner  and  under  like  conditions  and  re- 
strictions, powers  and  duties  as  in  the  case 
of  original  proceedings." 

141  V.  8. 


191  & 


ST.  LOUIS  A  K.  C.  LAND  CO.  v.  KANSAS  CITY. 


42^-425 


provision,''  it  is  said  by  the  state  court, 
"was  to  afford  a  remedy  when  by  any  error, 
defect,  or  omission  in  condenmation  pro- 
ceedings, assessments  made  against  private 
property  cannot  be  enforced  or  collected,  or 
where  property  in  the  benefit  district  is 
omitted,  etc.  In  such  case  it  was  provided 
that  the  city  may,  by  ordinance,  institute 
and  carry  on  supplemental  proceedings  to 
make  a  proper  assessment  against  any  parcel 
of  property  in  the  benefit  district  erro- 
neously omitted  or  erroneously  made  in  the 
first  proceeding,  etc"     260  Mo.  p.  406. 

Under   this   ordinance  the   supplemental 
proceeding  was  instituted  in  the  municipal 
court.     The  notice  required  by  the  charter 
was  given  and  the  plaintiffs  in  error  (with 
the  exception  of  the  Union  Depot  Bridge  k 
Terminal     Railroad     Company)     appeared. 
The  jury  returned  a  verdict  which  was  ''the 
same  as  to  the  amount  of  benefits  as  the 
verdict  returned  in  the  original  proceeding." 
State  ex  rel.  Graham  v.  Seehorn,  246  Mo. 
541,  552,  151  S.  W.  716;  see  260  Mo.  p.  406. 
An  appeal  was  taken  from  the  judgment  to 
the  circuit  court  of  Jackson  county.    While 
[423]  the  case  was  pending  in  that  court, 
the  presiding  judge,  having  announced  that 
he  purposed  to  "try  out  the  question  of  the 
amoimt  of   damages   awarded   to   property 
owners  whose  property  was  taken  or  dam- 
aged under  the  original  proceeding  as  well 
^  the  question  of  assessing  benefits  over 
nonpaying  properties  within  the  benefit  dis- 
trict/' two  prohibition  suits  were  brought  in 
the  supreme  court  of  the  state.  The  one  was 
brought  by  owners  of  property  in  the  benefit 
district  who  contended  that  the  municipal 
court  had  no  jurisdiction  of  either  the  orig- 
inal or  the  supplemental  proceedings,  and 
hence  that  the  circuit  court  had  no  jurisdic- 
tion on  appeal.     This  contention  was  over- 
ruled and  the  writ  denied.     State  ex  rel. 
Graham  v.  Seehorn,  supra;  see  260  Mo.  p. 
407.  The  other  prohibition  suit  was  brought 
by  the  owners  of  property  which  was  sought 
to  be  taken  for  public  use.    They  urged  that 
there  was  no  provision  for  an  appeal  in  a 
supplemental  proceeding  begun  in  the  muni- 
cipal court,  and  that,  in  any  event,  the  cir- 
cuit  court  had   no   jurisdiction    to   award 
damages.    The  court  sustained  the  right  of 
appeal,   but  it  was  held  that  the  verdict 
and   judgment  in   the  original  proceedings 
were  valid  "as  to  those  who  appeared  and 
accepted  them;"  that  the  original  proceed- 
ings, unappealed  from,  became  res  judicata. 
The  jury  were  not  to  include  in  their  verdict 
"assessments  of  benefits  and  damages  upon 
property  properly  included  in  the  first  ver- 
dict."    In   answer  to   the  contention  that 
property  owners  in  the  benefit  district  were 
entitled  to  be  heard  on  the  question  of  the 
amount  to  be  paid  for  the  property  taken  in 
60  If.  ed* 


condemnation,  the  court  ruled  that,  while  it 
was  entirely  proper  as  a  matter  of  grace  to 
permit  such  owners  to  aid  the  city  in  pre- 
venting an  unduly  high  valuation  of  the 
property  condemned,  they  were  not  necessary 
parties  in  the  determination  of  that  issue, 
and  that  this  question  was  not  open  to 
retrial  in  the  supplemental  proceedings 
where  the  owners  of  the  property  condemned 
[424]  had  acquiesced  in  the  awards.  Ac- 
cordingly, a  writ  issued  prohibiting  the  cir- 
cuit court  from  retrying  the  question  of  the 
amount  of  damages  awarded  to  the  owners 
of  property  condemned.  State  ex  rel.  TuUer 
V.  Seehorn,  246  Mo.  568,  151  S.  W.  724;  see 
260  Mo.  407-409. 

The  circuit  court  then  resumed  the  trial 
of  the  appeal  in  the  supplemental  proceed- 
ing. The  plaintiffs  in  error  appearing 
(with  the  exception  of  the  Union  Depot 
Bridge  Company)  challenged  the,  validity 
of  the  proceedings  under  the  state  law,. and 
each  company  also  claimed  protection  under 
the  due  process  and  equal  protection  clauses 
of  the  14th  Amendment  from  any  assess- 
ment of  benefits  until  it  had  "oppor- 
tunity to  be  heard  upon  the  amount  of  dam- 
ages that  shall  be  awarded  to  property 
owners  and  the  benefits  assessed  against  it, 
as  provided  by  the  charter  of  Kansas  City 
in  the  original  proceedings,"  and  that  it 
was  entitled  to  notice  of  those  proceedings. 
The  right  to  retry  the  amount  of  the  award 
in  condemnation  was  frequently  reiterated 
during  the  progress  of  the  cause  and  denied. 
It  was  also  unsuccessfully  contended  that 
the  decree  in  favor  of  the  Union  Pacific 
Railroad  Company,  and  interveners,  annul- 
ling the  former  assessments  as  to  them,  was 
a  bar.  The  court  further  ruled,  over  excep- 
tions, that  under  the  decision  of  the  su- 
preme court  the  jury  was  concluded  from 
changing  the  assessments  on  the  property 
of  those  owners  who  had  paid  under  the 
original  proceedings;  and  a  general  offer  of 
testimony  assailing  such  assessments  was 
rejected.  It  appeared  that,  after  deducting 
from  the  total  awards  of  damages  for  prop- 
erty condemned  the  amount  which  had 
already  been  paid  by  property  owners,  there 
remained  a  balance  of  $76,981.98.  Among 
the  instructions  given  to  the  jury  (and  to 
each  of  which  a  general  exception  was 
taken)   were  the  following: 

"This  balance  you  may  assess  against  the 
city  generally,  including  any  benefit  to  any 
property  of  the  city  [425]  within  the  ben- 
efit district,  and  against  such  of  the  remain- 
ing private  property,  lots,  tracts,  and  par- 
cels of  land,  exclusive  of  the  improvements 
thereon,  in  the  benefit  district,  as  you  may 
deem  is  benefited,  if  any,  and  in  the  pro- 
portion which  you  may  deem  the  same 
benefited,  by  the  opening  and  widening  of 

1077 


42S-427  BtTPBEME  COURT  OF  THE  UNITED  STATES.  OCT.  Tbv, 

Sixth   street,  mad  upon   vbich  no  Bnesi-  riglit  had  been  denied,  the  juir  shonld  aet 

meiita   have   been   paid   under   the  original  agsess  any  benefit, 

proceedings,"  The     jury     rendered     a     verdict     lafiag 

"If   the   jury   And  and   believe   from   the  aseeBsnients    upon    the    properties    of    tba 

evidence   that   the   benefit!   to   the   city   at  plaintiffs   in  error,  and  motiona  for  a  new 

large   and    the   special   benefit!   to   all   the  trial  vere  denied.    The  Union  Depot  Bridga 

property  within  the  benefit  district  does  not  Company    was    aaaeaaed    with    two    otherii 

equal  the  damages  heretofore  awarded   for  jointly,  and   appeared  and   objected   to  Um 

the  proposed  taking  of  property  for  widen-  verdict.     Thereupon,  the  court  recalled  Um 

ing  Sixth   street   from   Broadway   to   Bluff  Jurors   and   directed    separate    assessment^ 

streets,  or  if  the  Jury  find  that  the  damages  which  were  made.    The  Union  Depot  Bridgi 

ao  swarded  exceeds  in  amount  all  such  bene-  Company   asked   for   an   instruction   to  Ui* 

fits  as  would  accrue  from  such  widening  of  effect   that   a   portion   of   iU   property  bad 

Sixth  street, — then  the  Jury  will  ao  state  in  been   assessed   in   the     original   proceeding, 

their  verdict  and  will  asses!  no  beneftti  in  that  the  asiessmcnt  had  been  paid,  and  that 

these  proceedings."  the  remainder  of  the  lands  were  then  fonnd 

"The  Jury  are  instructed  that,  in  det^r-  not  to  be  benefited  and  should  not  b* 
mining  the  special  benefit,  if  any,  to  be  aasessed,  Tbis  instruction  waa  refnsed. 
assesaed  againat  any  piece  of  property,  they  This  company  also  moved  for  a  new  trial, 
are  not  allowed  to  assess  any  sum  against  insisting  that  it  was  deprived  of  its  prop- 
any  piecb  of  property  except  aucb  sum  as  erty  without  due  process  of  law  and  denied 
they  may  find  said  property  is  actually  and  the  equal  protection  of  the  laws,  in  viola- 
specially  benefited  and  enhanced  in  value,  tion  of  the  14th  Amendment, 
as  distinguished  from  any  general  benefit  [427]  On  appeal  the  supreme  court  of  Uie 
■uch  property  may  receive,  if  any,  in  com-  state  entered  Judgment  of  afflrmanee,  and  it 
mon  with  other  property  of  the  city,  by  is  to  review  that  Judgment  that  this  writ  of 
reason  of  the  widening  of  Sixth  street."  error  has  been  aued  out. 

"In  paaaing  upon  the  issue  as  to  whether        The    extent    of    the    authority    conferTMl 

or  not  the  damages  in  this  cose  exceed  the  upon  the  city  by  its  charter,  the  constnic- 

benefits,  the  jury  should  not  and  must  not  tion  of  the  various  provisions  of  the  cbar- 

be  influenced  by  the  fact  that  the  damages  ter,   the   validity,    scope,   and    effect   under 

have   been   determined   by   another  jury   in  the  state  law  of  ths  ordinances  adopted  hj 

another  proceeding.     Private  property  must  the   city,   snd  the   scope   and   effect   of  tha 

not  be  assessed  in  excess  of  the  actual  bene-  original  and  supplemental  proceedings,  and 

fits    accruing    thereto,    if    any,    as    distin-  the  rights  of  the  parties  thereto,  under  ths 

guiahed  from  the  benefits  accruing  to  the  state  law,  are  state  queaUons,  aa  to  which 

city  in  general."  the  decision  of  the  state  court  la  control- 

"Upon  your   request  for  further  Instruc-  ling.      Long   Island    Water   Supply    Co.   v. 

tion  in  regard  [426]   to  your  duties  aa  to  Brooklyn,  186  U.  S.  685,  41  L.  ed.  1165,  IT 

assessing  benefits  in  this  proceeding,  you  are  Sup.   Ct.   Rep.   718;   Castillo  v.   UcOonnico, 

instructed  that  you  may  not  assess  any  bene-  168  (J.  S.  674,   883,  42  L.  ed.  622,  625,  18 

fits  in  this  supplemental  proceeding  against  Sup,   Ct,   Rep.  229;   King  v.   Portland,  184 

any   property  in  the  benefit  district  which  U.  S.   61,   46  L.  ed.  431,   £2   Sup.   Ct   Bep. 

waa  adjudged  in  the  original  proc<>eding  to  290;   Willoughby  v.  Chicago,  2SS  U.  S.  45, 

have   been   damaged   by    reason    of   a    part  69  L.  ed.  123,  35  Sup.  Ct.  Rep.  23.     Bo,  the 

thereof    being    taken    for   the   widening'  of  ruling  aa  to  the  effect,  with  respect  to  ths 

Sixth     street     from     Broadway     to     Bluff  aupplemental  proceeding,  of  the  decree  in  a 

atreet."  court  of  the  same  state,  holding  the  prior 

Among  the  inatruotions  refused  was  one  assessmenta  void  for  want  of  the  required 

(apparently  asked   by   a   party  not   one   of  notice,  aa  to  the  complainant  in  that  suit 

the  plaintiffa  in  error,  but  in  whose  excep-  ""d  cerUin  interveners,  does  not  preaent  a 

tion  the  others  joined)  to  the  effect  that  the  Federal  question.     Phtenix  F.  4  M.  Ins.  Oft 

property  owner  was  entitled  under  the  14th  "■  Tennessee,   181  U.  S.  174,  186,  40  L.  ed. 

Amendment  "to   introduce  evidence  and   be  ««0'  «*'  1«  Sup.  Ct.  Rep.  471. 
heard  upon  the  question,  (a)  of  the  cost  of        "  "  ''•°^.'?"  '***^  "**  "  V^^  •* 

the  improvement  in  question  to  pay  which  ^^r^'  7    t     ""'^         ""^     "  ^ 

.   t.       ..  .     .  J        J   .1.1     I  ""  '"  order  to  pay  an  award  for  property 

such  beneflU  are  to  be  assessed,  and  (b)  of  ,„„a,„„^  j,  „„^  ^titled,  by  virtue  of  tt. 

what  proportion  of  the  toUl  benefit,  if  any,  „th  Amendment,  to  insist  u™  being  made 

Of    said    Improvement,    should    be    assessed  ^   p^^y    to    the   condemnation    proceeding, 

against  other   property   in    the   benefit  die-  or  to  be  heard  with  respect  to  the  amount 

trict.  that  upon  the  plat  of  which  ia  marked  of  the  award.     He  may  not  demand,  a*  a 

the  word  'paid'  as  well  as  all  other  prop-  Federal   right,   that  the   power   of   eminent 

ertyi"  and  that,  inasmuch  aa  the  alleged  domain  shall   not  be  exercised  save  upon 

107S  14]   tl.  S. 


1016. 


8T.  LOUIS  ft  K.  C.  LAND  00.  y.  KANSAS  OITY. 


427-430 


notice  to  him.  Voigt  v.  Detroit,  184  U.  S. 
115,  122,  46  L.  ed.  459,  462,  22  Sup.  Ct. 
Rep.  337;  Goodrich  y.  Detroit,  184  U.  S. 
432,  437,  438,  46  L.  ed.  627,  630,  631,  22 
Sup.  Ct.  Rep.  397;  Londoner  y.  Denver,  210 
U.  S.  373,  378,  52  L.  ed.  1103,  1109,  28  Sup. 
Ct.  Rep.  708.  Ab  well  might  it  be  argued, 
as  was  suggested  in  Goodrich  y.  Detroit, 
supra,  that  whenever  the  city  contemplated 
A  public  improvement  of  any  description, 
it  would  be  necessary  to  give  notice  to  all 
those  who  might  be  taxed  to  pay  for  it. 
The  established  rule  is  "that  it  is  only 
those  whose  property  is  proposed  to  be 
taken  for  a  public  improvement  [428]  that 
due  process  of  law  requires  shall  have  prior 
notice."     (Ibid.) 

Nor  is  there  ground  for  a  distinction  be- 
cause the  charter  of  Kansas  City  provided 
Ji  single  proceeding,  embracing  both  the 
proposed  condemnation  and  assessment  for 
benefits,  and  required  notice  to  the  prop- 
erty owners  within  the  benefit  district. 
The  question  under  the  14th  Amendment 
is  one  of  state  power,  not  of  state  policy; 
of  what  the  state  must  accord,  not  of  what 
it  may  grant  or  withhold  in  its  discretion. 
Castillo  V.  McOonnico,  168  U.  S.  674,  683, 
42  L.  ed.  622,  625,  18  Sup.  Ct.  Rep.  229; 
Willoughby  v.  Chicago,  235  U.  S.  45,  59 
L.  ed.  123,  85  Sup.  Ct.  Rep.  23.  With  re- 
spect to  neither  proceeding,  original  or 
supplementary,  was  it  essential  to  due 
process  of  law  in  making  assessments  that 
the  assessed  owners  should  be  heard  on  the 
junount  of  the  awards  in  condemnation. 
Nor  was  there  a  denial  of  the  equal  protec- 
tion of  the  laws  because  in  the  original  pro- 
ceeding there  was  such  an  opportunity, 
together  with  a  right  of  appeal.  The  as- 
serted inequality  sprang  solely  from  the 
fact  that  certain  assessed  owners,  despite 
the  defective  publication  of  notice,  appeared 
iind  acquiesced  in  the  proceedings.  There 
is  no  ground  for  the  charge  of  a  denial  of 
•equal  protection  because  some  owners  were 
willing  to  waive  defects  in  procedure  and 
others  were  not.  Differences  due  to  volun- 
tary action  and  diverse  individual  choices 
constantly  arise  under  equal  laws.  We  con- 
clude that  the  contention  based  on  the  re- 
fusal to  reopen  the  case  as  to  the  damages 
awarded  is  wholly  without  merit. 

With  respect  to  the  amount  of  the  assess- 
ments to  pay  these  damages,  it  is  apparent 
that  the  question  presented  relates  solely 
to  the  right  to  insist  upon  a  re-determina- 
tion of  the  assessments  laid  upon  the  prop- 
oi^ies  of  other  owners,  which  those  owners 
had  accepted  and  paid.  Under  the  rulings 
of  the  court,  none  of  the  plaintiffs  in  error 
were  assessable  except  for  benefits  actually 
4tn4  specially  accruing  to  their  respective 
properties;  they  were  heard  as  [429]  to 
«0  li.  ed. 


these  benefits  and  as  to  the  amoimt  of  their 
own  assessments.  Their  objection  as  to  the 
matter  of  apportionment  struck  at  the 
finality  of  the  other  assessments.  In  the 
only  instance  in  which  it  could  be  said  that 
any  right  under  the  Federal  Constitution 
was  specially  and  appropriately  set  up  as 
to  apportionment  it  was  urged  that  these 
owners  were  entitled  to  be  heard  upon 
"what  proportion  of  the  total  benefit,  if 
any,  of  said  improvement,  should  be  assessed 
against  other  property  in  the  benefit  dis- 
trict, that  upon  the  plat  of  which  is  marked 
the  word  'paid'  as  well  as  all  other  prop- 
erty;" and  because  this  was  not  allowed, 
and  the  assessments  which  had  been  ac- 
quiesced in  and  paid  by  other  owners  were 
held  to  be  final,  a  peremptory  instruction 
was  asked  that  the  jury  should  assess  no 
benefits.  It  is  apparent  that  this  objection 
goes  directly  to  the  validity  of  the  supple- 
mental proceeding  as  such,  and  denies  the 
power  of  the  state  to  authorize  it.  It 
means  that  the  only  proceeding  that  could 
constitutionally  be  taken  in  such  a  case 
would  be  to  have  a  trial  de  novo  as  to  all 
the  assessments;  and  thus,  where,  as  in 
this  instance,  thousands  of  tracts  are  in- 
volved, if  a  defect  is  found  in  the  publica- 
tion of  the  notice  in  the  original  proceed- 
ing, and  a  property  owner  challenges  his 
assessment  upon  that  ground,  it  would  not 
be  sufiicient  to  give  him  a  hearing  as  to 
the  amount  of  his  own  assessment,  but  he 
could  demand  as  a  constitutional  right  a 
re-determination  of  the  assessments  of  all 
others. 

This  contention  is  inadmissible.  It  is 
true  that  all  taxes  and  assessments  are  laid 
by  some  rule  of  apportionment.  Where  the 
scheme  of  distribution  is  palpably  arbitrary 
and  constitutes  a  plain  abuse,  it  may  be 
condemned  as  violative  of  the  fundamental 
conceptions  of  justice  embodied  in  the  14th 
Amendment.  The  principles  involved  in 
such  cases  have  recently  been  discussed  and 
need  not  be  restated.  Wagner  v.  Leser,  239 
U.  S.  207,  ante,  230,  36  Sup.  Ct.  Rep. 
66;  Houck  v.  Little  River  Drainage  Dist. 
239  U.  S.  254,  265,  ante,  266,  274,  36  Sup. 
Ct.  Rep.  58;  [430]  Myles  Salt  Co.  v.  Iberia 
k  St  M.  Drainage  Dist.  239  U.  S.  478, 
485,  ante,  392,  896,  36  Sup.  Ct.  Rep.  204; 
Gast  Realty  A  Invest.  Co.  y.  Schneider 
Granite  Co.  240  U.  S.  55,  58,  59,  ante, 
523,  525,  36  Sup.  Ct.  Rep.  254;  Embree  Y. 
Kansas  City  A  L.  B.  Road  Dist.  240  U. 
S.  242,  250,  251,  ante,  624,  628,  629, 
36  Sup.  Ot.  Rep.  317.  But  the  mere  fact 
that  there  may  be  inequalities  is  not  enough 
to  invalidate  state  action.  Davidson  y.  New 
Orleans,  96  U.  S.  97,  105,  24  L.  ed.  616, 
620;  Walston  y.  Nevin,  128  U.  S.  578,  582, 
32  L.  ed.  544,  546,  9  Sup.  Ct.  Rep.  192; 

1079 


480-432 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Temm, 


FaUbrook  Irrig.  Dist  t.  Brmdlej,  164  U.  S. 
112,  176,  177,  41  L.  ed.  369,  394,  17  Sup.  Ct 
Rep.  56;  Houck  ▼.  Little  RiTer  Drainage 
Dist  239  U.  S.  478,  485,  ante,  392,  396,  36 
Sup.  Ct.  Rep.  58.  Where  aeaeesmente  are 
made  by  a  political  subdivision,  a  taxing 
board,  or  court,  according  to  special  benefits, 
the  property  owner  is  entitled  to  be  heard  as 
to  the  amount  of  his  assessment,  and  upon 
all  questions  properly  entering  into  that  de- 
tennination.  'If  the  legislature,"  as  has 
frequently  been  stated,  "provides  for  notice 
to  and  hearing  of  each  proprietor,  at  some 
stage  of  the  proceedings,  upon  the  question 
what  proportion  of  the  tax  shall  be  assessed 
upon  his  land,  there  is  no  taking  of  his 
property  without  due*  process  of  law." 
Spencer  t.  Merchant,  125  U.  S.  345,  355, 
356,  31  L.  ed.  763,  767,  768,  8  Sup.  Ct.  Rep. 
921;  Paulsen  t.  Portland,  149  U.  S.  30,  41, 
37  L.  ed.  637,  641,  13  Sup.  Ct.  Rep.  750; 
Bauman  v.  Ross,  167  U.  S.  548,  590,  42  L. 
ed.  270,  288,  17  Sup.  Ct.  Rep.  96(1;  Goodrich 
T.  Detroit,  184  U.  S.  432,  437,  438,  46  L.  ed. 
627,  630,  631,  22  Sup.  Ct.  Rep.  397.  What 
is  meant  by  his  "proportion  of  the  tax"  is 
the  amount  which  he  should  be  required  to 
pay,  or  with  which  his  land  should  be 
charged.  As  was  said  in  Fallbrook  Irrig. 
Dist  y.  Bradley,  164  U.  S.  p.  Vt  5,  41  L.  ed. 
394,  17  Sup.  Ct  Rep.  56,  when  it  is  found 
that  the  land  of  an  owner  has  been  duly 
included  within  a  benefit  district,  "the 
right  which  he  thereafter  has  is  to  a  bear- 
ing upon  the  question  of  what  is  termed 
the  apportionment  of  the  tax,  i.  e.,  the 
amount  of  the  tax  which  he  is  to  pay."  See 
also  French  t.  Barber  Asphalt  Paving  Co. 
181  U.  S.  324,  341,  45  L.  ed.  879,  888,  21 
Sup.  Ct  Rep.  625.  It  is  a  very  different 
thing  to  say  that  an  owner  may  demand 
as  a  constitutional  privilege,  not  simply  an 
inquiry  as  to  the  amount  ot  the  aMsessment 
with  which  his  own  property  should  rightly 
be  charged  in  the  light  of  all  relevant  facts, 
but  that  he  should  not  be  assessed  at  all 
unless  the  assessments  of  other  owners  who 
have  paid  without  [431]  queation  and  are 
not  complaining  shall  be  reopened  and  rede- 
termined. The  14th  Amendment  affords  no 
basis  for  a  demand  of  that  sort. 

The  separate  contention  of  the  Union 
Depot  Bridge  Company  is,  as  the  state 
court  said,  virtually  one  of  res  judioata.  It 
was  insisted  that,  as  a  portion  of  its  prop- 
erty was  assessed  in  the  original  proceed- 
ing, and  the  assessment  had  been  paid,  It 
could  not  be  assessed  on  other  portions  in 
the  supplemental  proceeding;  that  it  must 
be  concluded  that  the  jury  in  the  original 
proceeding  had  found  that  the  other  tracts 
were  not  benefited.  The  question  whether 
the  first  Judgment  had  this  effect  was  a 
matter  of  state  law;  there  Is  nothing  in 
1080 


the  Federal  Constitution  to  prevent  the 
assessment  in  the  supplemental  proceedings 
of  properties  omitt^  from  the  first  pro- 
ceeding. Phcenix  F.  &  M.  Ins.  Co.  t.  Tennes- 
see, supra.  The  7th  Amendment,  invoked 
in.  this  connection,  has  no  applicatios. 
Minneapolis  &  St  L.  R.  Co.  v.  BomboUs, 
decided  May  22,  1916  [241  U.  S.  211,  ante, 
961,  36  Sup.  Ct.  Rep.  595.]  The  company 
appeared  in  the  supplemental  proceeding 
and  was  heard,  and,  so  far  as  any  Federal 
question  is  concerned,  does  not  appear  to 
be  in  a  different  case  from  that  of  the  other 
property  owners. 

We  find  no  error  in  the  decision  of  the 
Federal  questions  and  the  Judgment  is 
affirmed. 

Judgment  affirmed. 


[432]  LEVINDALE  LEAD  k  ZINC  MIN- 
ING COMPANY,  W.  H.  Aaron,  and  M.  L. 
Levin,  Plffs.  in  Err., 

V. 

CHARLES  COLEMAN. 

(See  S.  C.  Reporter's  ed.  432-440.) 

Indian  allotments  —  restrictions  on 
alienation  —  nonmembers  of  tribe. 

1.  The  restrictions  on  alienation  of 
Osage  Indian  allotments,  imposed  by  the 
act  of  June  28,  1906  (34  SUt  at  L.  539, 
chap.  3572),  do  not  apply  to  lands  or  any 
interest  therein  which  have  come  into  the 
possession  of  a  white  man  not  a  member  of 
the  tribe,  under  allotments  made  in  the 
right  of  certain  deceased  Indians  to  their 
respective  heirs. 

[For  other  cases,  see  Indians,  YIII.,  in  Digest 
8up.  Ct.  1908.] 

Indian    allotments    —    restrictions   on 

alienation  —  ncmmembers  of  tribe. 

2.  A  reslrictioA  on  alienation  of  Indian 
allotments  which  have  come  into  the  pos- 
session of  a  white  man  not  a  member  of 
the  tribe,  under  allotments  made  in  the 
right  uf  deceased  Indian  allottees  to  their 
respective  heirs,  was  not  imported  into  the 
Osage  allotment  act  of  June  28,  1906  (34 
Stat,  at  L.  639,  chap.  3572),  by  the  provi- 
sion  of  the  amendatory  act  of  April  18, 
1912  (37  Stat,  at  L.  86,  chap.  83),  that 
"when  the  heirs  of  such  deceased  allottees 
have  certificates  of  competency,  or  are  not 
members  of  the  tribe,  the  restrictions  'on 
alienation  are  hereby  removed,"  but  such 
provision  should  be  regarded  as  intended  to 
meet  the  ruling  of  an  inferior  state  court, 
which  had  erroneously  decided  that  the  re- 
strictions imposed  by  the  earlier  act  ap* 
plied  to  nonmembers  of  the  tribe. 

[For  other  cases,  see  Indians,  YIIL,  in  Difest 
Sap.  (X  1908.] 

[No.  322.] 

•Argued  April  25,  1916.     Decided  Jtms  6» 

1916. 

i41  V.  s. 


1015. 


LEVINDALE  L.  ft  Z.  MIN.  CO.  v.  COLEMAN. 


433--436 


IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Oklahoma  to  review  a  decree 
which  afiirmed  a  decree  of  the  District  Court 
-of  Osage  County,  in  that  state,  annulling  a 
conveyance  of  an  Indian  allotment.  Re- 
versed and  remanded  for  further  proceed- 
ings. 

See  same  case  below,  43  Okla.  13,  140 
Pac.  COT. 

Ihe  facts  are  stated  in  the  opinion. 

Mr.  II.  P.  White  argued  the  cause  and 
filed  a  brief  for  plaintiffs  in  error. 

Mr.  Preston  A.  Shinn  argued  the  cause 
and  filed  a  brief  for  defendant  in  error. 

[433]  Mr.  Justice  Hnghca  delivered  the 
opinion  of  the  court: 

Charles  Coleman,  the  defendant  in  error, 
brought  this  suit  to  set  aside  a  conveyance 
of  an  undivided  interest  in  lands  inherited 
from  his  Indian  wife  and  child,  who  were 
members  of  the  Osage  Tribe.  Judgment 
was  entered  annulling  the  conveyance  upon 
the  ground  that  it  was  executed  in  violation 
of  restrictions  imposed  by  Congress.  The 
judgment  was  afiirmed  by  the  supreme  court 
of  the  sUte  (43  Okla.  13, 140  Pac.  607),  and 
this  writ  of  error  has  been  sued  out. 

The  case  was  decided  upon  a  motion  for 
judgment  on  the  pleadings,  and  there  were 
special  findings  of  the  facts  which  the  plead- 
ings disclosed.  It  appears  that  the  plain- 
tiff, Charles  Coleman,  was  a  white  man, 
lawfully' married  to  an  Indian  woman,  Mary 
Chesewalla;  that  their  child,  Joseph  Cole- 
man, was  born  on  February  27,  1906,  and 
died  on  the  same  day,  leaving  his  father 
and  mother  his  sole  heirs;  that  his  mother 
died  intestate  on  February  28,  1906,  leav- 
ing as  her  sole  heirs  Charles  Coleman,  Her- 
bert Chesewalla,  and  Floyd  Chesewalla ;  that 
both  decedents  were  duly  enrolled  as  mem- 
bers of  the  Osage  Tribe,  and  were  entitled 
to  allotments  under  the  act  of  Congress  of 
June  28,  1906  (34  SUt.  at  L.  639,  chap. 
3572) ;  and  that,  after  their  death,  allot- 
ments were  made  in  their  right  to  the  heirs 
of  each  respectively,  the  allotment  deeds 
being  approved  by  the  Secretary  of  the  In- 
terior and  recorded  in  the  year  1909.  By 
the  death  of  his  wife  and  child  the  plain- 
tiff took  title  as  heir  to  an  undivided  one- 
half  interest  in  the  lands  allotted  in  the 
right  of  the  former,  and  to  an  undivided 
three-fourths  interest  in  lands  allotted  in 
the  right  of  the  latter.  These  lands  have 
not  been  partitioned.  In  February,  1909, 
Charles  Coleman  conveyed  by  warranty 
deed  his  undivided  interest  to  the  defend- 
ant (plaintiff  in  error)  the  Levindale  Lead 
ft  Zino  Mining  Company.  It  is  further  set 
forth  that  his  wife  had  not  received  [434] 
a  certificate  of  competency.  There  was  no 
eo  li.  ed. 


finding  and  no  basis  in  the  record  for  a 
finding  that  Charles  Coleman  was  a  member 
of  the  Osage  Tribe  by  adoption,  enrolment, 
or  otherwise. 

The  lands  prior  to  the  allotment  were 
Indian  lands  (17  Stat,  at  L.  228,  chap. 
310),  and  there  is  no  controversy  as  to  the 
power  of  Congress,  in  providing  for  allot- 
ments, to  impose  restrictions  upon  aliena- 
tion. The  question  is  as  to  the  construc- 
tion of  the  provisions  of  the  allotment  act 
of  June  28,  1906. 

That  act  provided  that  the  roll  of  the 
Osage  Tribe  as  it  existed  on  January  1, 
1906,  with  the  additions  specified,  should 
be  the  roll  of  the  tribe  and  constitute  its 
"legal  membership."  Children  born  be- 
tween January  1,  1906,  and  July  1,  1907, 
to  persons  whose  names  were  on  the  roll 
on  the  first-mentiened  date,  "including  the 
children  of  members  of  the  tribe  who  have, 
or  have  had,  white  husbands,"  were  to  be 
recognized  as  members  for  the  purposes  of 
the  division.  (Sec.  1.)  All  lands  were  to 
be  divided  "among  the  members  of  said 
tribe,  giving  to  each  his  or  her  fair  share 
thereof  in  acres"  as  specifically  set  forth; 
that  is,  "each  member"  as  shown  by  the 
roll  was  to  be  allowed  to  make  three  selec- 
tions of  160  acres  each  in  the  manner  de- 
scribed. (Sec.  2.)  Restrictions  were  im- 
posed as  follows: 

"Each  member  of  said  tribe  shall  be  per- 
mitted to  designate  which  of  his  three 
selections  shall  be  a  homestead,  and  his 
certificate  of  allotment  and  deed  shall  desig- 
nate the  same  as  a  homestead,  and  the  same 
shall  be  inalienable  and  nontaxable  until 
otherwise  provided  by  act  of  Congress.  The 
other  two  selections  of  each  member,  to- 
gether with  his  share  of  the  remaining  lands 
allotted  to  the  member,  shall  be  known  as 
surplus  land,  and  shall  be  inalienable  for 
twenty-five  years,  except  as  hereinafter  pro- 
vided."    (Sec.  2,  Fourth.) 

After  "each  member"  had  made  the  three 
selections,  the  [435]  remaining  lands  of 
the  tribe,  except  as  stated,  were  to  be  divided 
"as  equally  as  practicable  among  said  mem- 
bers by  a  conunission  to  be  appointed." 
(Sec.  2,  Fifth.)  The  Secretary  of  the  In- 
terior in  his  discretion,  at  the  request  of  any 
"adult  member  of  the  tribe,"  was  to  issue 
"to  such  member  a  certificate  of  competency, 
authorizing  him  to  sell  and  convey  any  of 
the  lands  deeded  him  by  reason  of  this  act» 
except  his  homestead,  which  shall  remain 
inalienable  and  nontaxable  for  a  period  of 
twenty-five  years,  or  during  the  life  of  the 
homestead  allottee,"  if,  upon  investigation, 
"he  shall  find  any  such  member  fully  com- 
petent" to  care  for  his  affairs.  It  was  pro- 
vided that  upon  the  issuance  of  such  a  cer- 
tificate of  competency  the  lands  of  sueh 

IQSl 


435-437 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct. 


9» 


tf 


'Member/'  except  homestead  lands,  should 
"become  subject  to  taxation/'  and  that 
"such  member,"  except  as  provided,  should 
have  the  right  to  "manage,  control  and  dis- 
pose of  his  or  her  lands  the  same  as  any 
citizen  of  the  United  States.''  It  was  fur- 
ther provided  that  the  surplus  lands  should 
be  "nontaxable"  for  the  period  of  three 
years  from  the  approval  of  the  act  "except 
where  certificates  of  competency  are  issued 
or  in  case  of  the  death  of  the  allottee,  un- 
less otherwise  provided  by  Congress."  (Sec. 
2,  Seventh.)  Oil,  gas,  coal  or  other  min- 
erals "covered  by  the  lands"  were  "reserved 
to  the  Osage  Tribe  for  a  period  of  twenty- 
five  years."  (Id.  §3.)  Ail  funds  belonging  to 
the  tribe,  and  moneys  accruing  to  it,  were 
to  be  "held  in  trust  by  the  United  Statei 
for  the  period  of  twenty-five  years"  from 
January  1,  1007,  except  as  provided.  The 
funds  of  the  tribe,  and  moneys  accruing 
from  the  sale  of  Kansas  lands,  together  with 
those  due  upon  claims  against  the  United 
States,  were  to  be  segregated  and  placed  to 
the  credit  of  the  "individual  members"  of 
the  tribe  "on  a  basis  of  a  pro  rata  division, 
or  "to  their  heirs  as  hereinafter  provided, 
and  such  credit  was  to  draw  interest,  to  be 
''paid  quarterly  to  the  members  entitled 
thereto;"  and  the  disposition  of  royalties 
[4136]  from  mineral  leases  was  specially 
prescribed.  (Sec.  4.)  At  the  expiration  of 
twenty-five  years  from  January  1,  1907,  the 
lands,  mineral  interests,  and  moneys  held  in 
trust  by  the  United  SUtes  were  to  be  the 
absolute  property  of  the  "individual  mem- 
bers" of  the  tribe,  according  to  the  roll, 
"or  their  heirs,  as  herein  provided,"  and 
deeds  were  to  be  issued  accordingly.  (Sec. 
5.)     Sections  6  and  7  are  as  follows: 

"Sec  6.  That  the  lands,  moneys,  and  min- 
eral interests,  herein  provided  for,  of  any 
deceased  member  of  the  Osage  Tribe  shall 
descend  to  his  or  her  legal  heirs,  according 
to  the  laws  of  the  territory  of  Oklahoma, 
or  of  the  state  in  which  said  reservation 
may  be  hereinafter  incorporated,  except 
where  the  decedent  leaves  no  issue,  nor 
husband  nor  wife,  in  which  case  said  lands, 
moneys,  and  mineral  interests,  must  go  to 
the  mother  and  father  equally. 

"Sec.  7.  That  the  lands  herein  provided 
for  are  set  aside  for  the  sole  use  and  bene- 
fit of  the  individual  members  of  the  tribe 
entitled  thereto,  or  to  their  heirs,  as  herein 
provided;  and  said  members,  or  their  heirs, 
shall  have  the  right  to  use  and  to  lease 
said  lands  for  farming,  grazing,  or  any  oth- 
er purpose  not  otherwise  specifically  pro- 
vided for  herein,  and  said  members  riiall 
have  full  control  of  the  same,  including  the 
proceeds  thereof:  Provided,  That  parents 
of  minor  members  of  the  tribe  shall  have  the 
control  and  use  of  said  minors'  lands,  to- 
1081 


gether  with  the  proceeds  of  the  same,  until 
said  minors  arrive  at  their  majority:  And 
provided  further,  That  all  leases  given  on 
said  lands  for  the  benefit  of  the  individual 
members  of  the  tribe  entitled  thereto,  or 
for  their  heirs,  shall  be  subject  only  to  the 
approval  of  the  Secretary  of  the  Interior." 

Deeds  to  the  Osage  lands  were  to  be  exe- 
cuted by  the  principal  chief,  but  were  not 
to  be  valid  until  approved  by  the  Secretary 
of  the  Interior  (i  8),  and  it  was  further 
provided  that  whatever  was  necessary  to 
carry  into  effect  the  provisions  of  the  act 
should  be  done  under  the  authority  [437] 
of  this  officer  (S  12).  R^^lations  have  been 
adopted  by  the  Secretary  of  the  Interior 
governing  the  leasing  (under  SS  7,  12)  of 
lands  "allotted  to  Osage  Indians."  These 
provide,  among  other  things,  that  "lands  of 
deceased  allottees  may  be  leased  by  the  heirs 
jointly,"  as  stated.  (Regulations  11,  12, 
approved  October  25,  1910;  8,  approved 
June  17,  1913.) 

llie  provisions  of  the  allotment  act  must 
be  construed  in  the  light  of  the  policy  they 
were  obviously  intended  to  execute.  It  waa 
a  policy  relating  to  the  welfare  of  Indians, 
— awards  of  the  United  States.  The  estab- 
lishment of  restrictions  against  alienation 
"evinced  the  continuance,  to  this  extent,  at 
least,  of  the  guardianship  which  the  United 
States  had  exercised  from  the  beginning." 
Heckman  v.  United  SUtes,  224  U.  S.  413, 
436,  66  L.  ed.  820,  829,  32  Sup.  Ct.  Rep. 
424;  United  SUtes  v.  Kagama,  118  U.  S. 
376,  384,  30  L.  ed.  228,  230,  6  Sup.  Ct. 
Rep.  1109;  United  SUtes  v.  Rickert,  188 
U.  S.  432.  437,  43^,  47  L.  ed.  532.  536,  23 
Sup.  Ot.  Rep.  478;  Marchie  Tiger  v.  West- 
em  Invest.  Co.  221  U.  S.  286,  316,  55  L.  ed. 
738,  749,  31  Sup.  Ct  Rep.  578;  WiUiams 
V.  Johnson,  239  U.  S.  414,  420,  ante,  358,  360, 
36  Sup.  Ct.  Rep.  150.  This  policy  did  not  em- 
brace white  men, — ^persons  not  of  Indian 
blood, — ^who  were  not  as  Indians  under  na- 
tional protection,  although  they  might  in- 
herit lands  from  Indians;  and,  with  respect 
to  such  persons,  it  would  require  clear  lan- 
guage to  show  an  intent  to  impose  restric- 
tions. 

Taken  in  their  natural  sense,  the  provi- 
sions of  the  fourth  paragraph  of  S  2  apply 
only  to  allotmento  made  to  members  of  the 
tribe.  There  is  nothing  to  suggest  that  a 
nonmember  should  designate  a  "homestead," 
and  unless  lands  were  thus  segregated  the 
restrictions  as  to  "homesteads"  would  not 
apply.  With  respect  to  "surplus  lands,"  it 
will  be  observed  that  it  is  only  selections  of 
each  "member,"  and  the  share  of  remain- 
ing lands  "allotted  to  the  member,"  which 
constitute  lands  so  described  and  thus  come 
under  the  sUted  restrictions.  It  was  early 
ruled  administratively  that  under  g  6  the 

141  U.  8. 


1016. 


LEVINDALE  L.  k  Z.  MIN.  CO.  ▼.  COLEMAN. 


437-440 


right  to  the  member's  share,  though  un- 
allotted in  his  lifetime,  passed  to  his  legal 
heirs  as  there  [4138]  defined,  and  this  we 
assume  to  be  the  meaning  of  the  statute. 
But  the  fact  that  the  nonmember  takes  in 
the  right  of  the  deceased  member  is  not 
enough  to  subject  him  to  restrictions  which 
are  plainly  imposed  for  the  protection  of 
members.  It  is  urged  that  the  restrictions, 
by  virtue  of  their  terms,  were  to  run  with 
the  land  until  they  expired  by  limitation  or 
were  removed  (Bowling  v.  United  States, 
233  U.  8.  628,  68  L.  ed.  1080,  34  Sup. 
Ct.  Rep.  669),  but  restrictions  would 
not  run  with  the  land  unless  they  had 
attached.  And,  even  where  they  had  at- 
tached, they  would  run  only  according 
to  the  intendment  of  the  statute.  Wf 
find  no  indication  of  an  intent  that  they 
should  apply  to  lands,  or  an  interest  in 
lands,  which  had  come  lawfully  into  the 
ownership  of  white  men  who  were  nonmem- 
bers  of  the  tribe.  Emphasis  is  placed  by 
the  defendant  in  error  on  the  provisions  of 
S  7  as  to  leases;  but  it  would  be  an  inad- 
missible construction  of  this  section  to  say 
that  the  word  "heirs"  was  there  used  in 
contradistinction  to  ''members."  This  pro- 
vision as  to  leases,  in  the  light  of  the  pur- 
pose of  the  act,  had  reference,  we  think,  to 
the  "individual  members"  who  received  al- 
lotments and  the  Indian  heirs  of  such  mem- 
bers. 

The  view  we  have  taken  of  the  inapplica- 
bility of  the  restrictions  upon  alienation  in 
a  case  like  the  present  finds  support  in  the 
fact  that  there  was  no  provision  for  giving 
to  nonmembers  certificates  of  competency. 
Under  the  seventh  paragraph  of  S  2,  any 
"adult  member"  of  the  tribe,  although  a 
full -blood  Indian,  who  could  satisfy  the 
Secretary  of  the  Interior  of  his  ability  to 
transact  hia  own  business,  might  obtain  a 
certificate  and  thus  be  enabled  to  dispose  of 
his  "surplus  land;"  but  a  competent  white 
man,  not  a  member,  could  not  be  relieved. 
It  would  seem  to  be  evident  that  such  an 
incongruous  result  was  not  intended,  the 
language  plainly  showing  that  Indians  alone 
were  deemed  to  be  subjected  to  the  restric- 
tions. 

It  is  insisted  that  subsequent  legislation 
ffi  pari  materia  indicates  the  contrary.  Ref- 
erence is  made  to  the  acts  [439]  of  March 
3,  1909  (36  SUt.  at  K  778,  chap.  266),  and 
of  April  18,  1912  (37  Stat,  at  L.  86,  chap. 
83).  The  former  does  not  aid  this  con- 
tention, but  is  rather  opposed  to  it.  The 
statute  authorized  the  Secretary  of  the  In- 
terior to  sell  "part  or  all  of  the  surplus 
lands  of  any  member"  of  the  Osage  Tribe, 
but  contained  no  authority  to  deal  with 
•0  li.  ed. 


lands  of  nonmembers.  It  will  also  be  ob- 
served that  prior  to  this  act  there  was  a 
joint  resolution  of  February  27,  1909  (36 
Stat,  at  L.  1167),  providing  that  "home- 
steads of  members  of  the  Osage  Tribe"  may 
consist  of  land  designated  from  any  one  or 
more  "of  their  first  three  allotment  selec- 
tions;" this  docs  not  suggest  that  nonmem- 
bers were  supposed  to  designate  **home- 
steads."  But  it  is  the  act  of  1912  upon 
which  chief  reliance  is  placed.  This  was 
"supplementary  to  and  amendatory  of"  the 
act  of  1906,  and  provides,  among  other 
things,  in  §  6,  relating  to  the  lands  "of  de- 
ceased Osage  allottees,"  that  "when  tne  heirt 
of  such  deceased  allottees  have  certificates 
of  competency  or  are  not  members  of  the 
tribe,  the  restrictions  on  alienation  are  here- 
by removed."  We  lay  aside  the  suggestion 
that  "deceased  Osage  allottees"  may  be 
taken  to  mean  only  members  who  received 
allotments  in  their  own  right  while  living, 
expressing  no  opinion  upon  that  point.  For 
not  only  is  a  legislative  declaration  of  the 
intent  of  a  previous  act  not  absolutely  con- 
trolling, but  we  think  that  in  the  present 
instance  the  purpose  of  Congress  is  mani- 
fest. This  suit  had  been  decided  in  the 
district  court  of  the  state  in  December,  1910, 
and  it  had  been  there  held  that  the  restric- 
tion applied  to  nonmembers.  The  case  had 
been  appealed,  but  it  may  well  be  supposed 
that  Congress  intended  to  remove  the  re- 
striction upon  a  nonmember,  if  such  a  re- 
striction could  be  deemed  to  exist.  That, 
we  are  satisfied,  was  the  object  of  the  pro- 
vision, and  it  was  not  an  attempt  to  im- 
port into  the  earlier  act  a  restriction  which 
lay  wholly  outside  its  express  terms  and  the 
policy  of  guardianship  it  was  intended  to 
execute. 

[4M0]  We  confine  ourselves  to  the  single 
point  presented.  There  is  no  c<mtroversy 
whatever  as  to  the  authority  of  the  Secre- 
tary of  the  Interior,  where  there  are  un- 
divided interests  belonging  to  Indians,  ade- 
quately to  protect  those  interests  according 
to  the  statutory  provisions  to  this  end.  Our 
conclusion  simply  is  that  the  act  ot  1906 
placed  no  restrictions  upon  the  alienation 
of  land,  or  undivided  interests  in  land,  of 
which  white  men  who  were  not  members  of 
the  tribe  became  owners. 

The  judgment  is  reversed  and  the  case  ia 
remanded  for  further  proceedings  not  incon- 
sistent with  this  (pinion* 

It  is  so  ordered. 

Mr.  Justice  McReynolds  took  no  part 
in  the  consideration  and  decision  of  thii 
case. 

loss 


SUPREME  COURT  OF  THE  UNITED  STATES.  Ocn.  Tmi, 


PACIFIC  LIVE  STOCK  COMPANY,  Appt, 

JOHN  H.  LEWIS,  Juan  T.  ChlnDock,  ud 
QcoTga  T.  Cochru,  Conatituting  tbe  Stats 
Wkter  Board  bf  the  SUt«  of  Oregon,  et 


.  eept  th«  Tiew  of  tbe  hlgliMt  itate  court, 
the  neeewary  mult  of  the  highnt  Murfi 
eoDitmctton   of   a   state   ttatnte,   that   tk« 

froceeding  authorited  and  eontrolled  br  ) 
mtA'»  (Or.)  I«wt,  tit.  43,  ehtip.  B,  U«i 
IS13,  ehapa.  hi,  M,  and  B7,  lor  th* 
determination  of  the  relative  rtgfata  <f 
,r,      a    n    T^  *"    '''"    claimanta    to    the    water    of    the 

(See  B.  0.  Reporter'!  ed.  *4(MBS.)  itream    for   irrimtion   or   other   beneflriil 

pnrpoeee,  ii,  while  pending  before  the  State 
AppMl  -  from  dialrlct  conM  -  OMe  re-    ^,^^1  ^■'^'  T^i^  P"limiaarj  and  ad- 
nuinded  to  aiue  court  minlrtrative,  not  JudicUl. 

1.  An  order  of  a  Federal  dUtrict  court,     'Tu.SS'"fl»rct  iSosS'^^   ^"^   *■    *■   * 
remanding  a  cauae  to  a  lUte  court,  ii  not    „         .  '    .    , 

mbject  to  review  by  the  Federal  Supreme  ConetHnUonal  law  —  dne  prooM*  oC 
Court,  either  directly  or  Indirectly.  '■*  —  ppoeeedlnje  befMe  SUta  Wat«r 

[For  otti«r   c(ip(,   we   Appeal   and    Error,   III.         Board  —  fees. 

d,  8.  b.  In   Ulinc  Sup.  Ct  1B08.I  4.  A  claimant  to  rlghU  in  the  waUn  ol 

Oonrta    —    oonHlctlnc     Jurladlcllon    —    a  atream  ia  not  deprived  of  property  with- 

priority  —  Identity  of  proceicdlnis.         out  due  proceH  of  law,  contrary  to  U.  S. 

2.  The  proceeding  before  the  State  Wa-  Conat.,  ]4t]i  Amend.,  becauae,  in  the  pre- 
ter  Board, . authorized  by  3  Lord'e  (Dr.)  Ilminarj  Bdminiitrative  proceeding  before 
Lawa,  tit.  43,  chap.  6,  Lawa  1913,  ebapa.  8S,  the  State  Water  Board,  lnitiat«d  under  I 
80,  and  97,  looking  to  the  complete  aacer-  t«rd'a  (Or.)  Uiwa,  tit.  43,  chap.  0,  Lawa 
tainnent  and  adjudication  of  the  relative  1913,  chapa.  S2.  80,  and  97,  to  determioa 
rights  of  all  the  claimanta  to  the  watera  of  the  relative  righta  of  all  the  ciaimanu  lo 
«  atream  for  irrigation  and  other  iMneficial  the  water  of  the  atream  for  irrigation  and 
purpoiea,  ia  ao  eaaentially  different  from  other  beneficial  purpoaea,  be  la  required,  at 
pending  private  auita  between  a  few  only  hia  own  expenae,  Botwithatandins  the  in- 
of  auch  daimanta,  previoualy  l>cguB  in  a  conclusiveneaa  of  the  board'a  flndinga  and 
Federal  court,  to  reatraln  alleged  encroach-  order,  to  aasert  and  prove  hie  claim  before 
menta  npon  plaintiff'a  righLa  in  the  water  the  board,  and  to  pay  tor  having  it  eon- 
of  the  atream,  aa  to  preclude  the  applica-  aidcred,  a  fee  of  16  centa  per  acre  tor  tbe 
tion  of  the  rule  that  where  the  aame  matter  ^rat  100  acrea,  6  centa  per  acre  for  the  neit 
ia  brought  before  court*  of  competent  ju-  BOO  acrea,  and  1  cent  per  acre  for  any  ex- 
riadiction,  tbe  one  Brat  obtaining  juriadic-  ceaa  over  1,000  acrea. — all  under  penaltv  ol 
tion  will  retain  it  until  tbe  controveray  la  forfeiting  hia  claim  if  be  refuaea, — wher* 
determined,  to  the  entire  exclusion  of  the  ^U  the  evidence  laid  before  the  board  go«a 
other,  and  will  maintain  and  protect  ita  before  tbe  court  on  final  bearing,  there  to 
Jvrladietlon  by  an  appropriate  injunction,  be  accorded  Ita  proper  weight  and  value, 
[tor  other  caaei,  tei-  Courta,   VI.  g,  1,  In  Dl-     l*'"'  other  caaea.  aee  Conxltutional    Law.  IT. 

■eat    Bup.    Cl.    IQOS.)  b,   B.   a.   in   Dlseat   Hup.   CI.   1008.1 

Federal  courts  —  followInK  ntale  court  Conetitutlonnl  law  —  due  proccaa  ol  law 
decision  —  conatrnctlou  of  loc»l  ■IbI>  — proceed  insB  before  Sute  Wal«r 
nie.  Board  —  evidence. 

3.  The  Federal  Supreme  Court  will  ac-  ^-  '^^^    proceedinga    before    the    State 
Water  Board  authorised  and  controlled  bf 


NoTE.-On  direct  review  in  Federal  Su-  ?„}f ^**if  '^''i'  'f*"'  V'i,^^  =''JP  <"•  "*" 
preme  Court  of  judgmenta  of  district  or  1613.  chape.  82,  86.  and  97,  for  the  purpoM 
circuit  court8-.ee  notea  to  Gwin  v.  United  ?'  determining  the  relative  rights  of  aU 
SUtes,  40  U  ed.  U.  8.  741,  and  B.  Altman  f*".  e'".""'"*'  to  the  water  of  a  atream  for 
k  Co.  V.  United  SUtea,  68  L.  ed.  U.  S.  884.        '"igation  and  other  beneacial  purposes,  are 

Aa  to  state  decisions  and  Uwa  as  rules  of  "5"  wanting  in  due  proceaa  of  law  because 
decision  in  Federal  courts-.ee  notes  to  t">e  a«ora  statement,  of  claimant,  are  ta^M 
Qark  v.  Graham,  B  L.  ed.  U.  S.  334 :  Elmen-  '"  P*''"  '"  """  *"'  matance,  and  the  rtaU 
dorf  v.  Taylor,  6  L.  (d.  U.  8.  200;  JackK)n  ""g'n^r'a  "port  ia  accepted,  though  not 
ex  dem.  St.  John  r.  Chew,  6  L.  ed.  U.  S.  'V"'  ^,  !"?  """i'  "  P""""":  ^""  evidence, 
B83;  Mitchell  v,  Burlington,  18  L.  ed.  U  S  "^^r*  F'*'""*"'"  atatemeota  are  open  t. 
361;  United  Statea  eTrel.  Bute  v.  Muaca-  P"""''"  "lapMtion,  opportuMty  ia  given  lor 
tine,  10  L.  ed.  U.  S.  490;  Forepauoh  v.  ""tf't'ns  t*"™.  ""a-  «P<n>  the  hearing  ol 
DeUware,  L.  A  W.  R.  Co.  6  L.R.A.  608;  and  tl"^?""^**.  witness,  may  be  examined,  in- 
SnareiT.  Co.  V.Friedman,  40  L.R-A.(N.S.)  "'"ding  those  making  the  ataUment^  and 
3g0  any  appropriate  evidence  may  be  produced. 

As  to  what  constitute,  due  proee..  of  law,    f.""*  "''f  *  "'^  measuremente  and  examina- 

Cnerally— see  notes  to  Pwple  v.  O'Brien,  2  ,  *'°"'  '^°™  '" .  *]"*,  '"f"^''  *  "?"«  ^ 
R.A.  2G6;  Kunti  v.  Sumption.  2  L.R.A.  RJ^."  .""j*  "P*""*^  in  the  diadiarge  of  hia 
656;  Re  Gannon.  6  L.R.A.  369;  Ulman  ,.  I  oOcial  duties  and  under  unction  of  hu 
Baltimore,  11  L.R.A.  224;  Qilma^  v.  Tucker,  «*^  of  office,  and  timely  notice  of  the  date 
13L.R.A.  304;  Pearson  v.Yewdall,  24  L.ed.  I  *''f"    *^*'    "'    ^    *^"'    *■    «*'"»    ^   •" 

U.  S.  436,  and  WilsMi  v.  North  Carolina,  42  |  r''""°'*'   „ „„  „^..      ,  ,        _ 

I^  pd    II   R   flHS  ^^  l*^""^  other  isaea,  ae*  ConsUtnllonal  law,  IT. 

7-™:  ^-  °-  ""*■  b.  8,  d,  in  Dlfcat  Sop.  Ct  1908.1 


1916. 


PACIFIC  UVB  STOCK  CO.  v.  LEWIS. 


ConsUtuUonal  law  —  dae  proceM  of 
law  —  prima  facie  correctness  of  ad- 
ministraUYe  order. 

6.  The  requirement  of  3  Lord's  (Or.) 
Laws,  tit  43,  chap.  6,  Laws  1913,  chaps. 
82,  86,  97,  that,  pending  final  adjudication 
by  the  court,  the  waters  of  a  stream  shall 
be  distributed  to  the  Tarious  claimants  ac- 
cording to  the  administrative  order  of  the 
State  Water  Board  unless  a  suitable  bond  is 
given  to  stay  the  operation  of  such  order, 
is  not  wanting  in  due  process  of  law,  where 
the  order  is  made  only  after  adequate  notice 
and  full  opportunity  to  be  heard. 
{For  other  cases,  lee  Conitltutlonal  Law,  IV. 
b,  8,  a,  in  Digest  8ap.  Ct   1908.] 

[No.  300.] 

Argued  March  16,  1916.    Decided  June  5, 

1916. 

APPEAL  from  the  District  Court  of  the 
"United  States  for  tiie  District  of  Ore- 
gon to  review  a  decree  dismissing  the  bill 
in  a  suit  to  enjoin  a  proceeding  before  the 
State  Water  Board  for  the  determination 
of  the  relative  rights  of  the  claimants  to 
the  water  of  a  stream  for  irrigation  and 
other  beneficial  purposes.    Affirmed.i 

See  same  case  below,  on  motion  for  in- 
terlocutory injunction,  217  Fed.  95. 

The  facts  are  stated  in  the  opinion. 

Mr.  £dward  F.  Treadwell  argued  the 
cause,  and,  with  Messrs.  Alexander  Britton. 
Evans  Browne,  and  F.  W.  Clements,  filed  a 
brief  for  appellant: 

A  water  ri^t  by  appropriation  or  by  vir- 
tue of  riparian  ownership  is  a  vested  right 
of  property  as  much  as  the  land  on  which 
it  is  enjoyed  or  of  which  it  is  a  part. 

San  Joaquin  &  K.  River  Canal  &  Irrig. 
Co.  V.  Stanislaus  County,  233  U.  S.  454,  68 
L.  ed.  1041,  34  Sup.  Ct.  Rep.  652;  Palmer 
V.  Railroad  Commission,  167  Cal.  163,  138 
Pac.  997. 

If  such  a  taking  of  property  be  deemed  a 
taking  for  a  public  use,  then  it  is  taken 
without  compensation,  and  the  taking  of 
private  pr<^»erty  for  public  use  without  com- 
pensation is  a  taking  without  due  process 
of  law. 

Chicago,  B.  &  Q.  R.  Co.  v.  Chicago,  166 
U.  S.  226,  41  L.  ed.  979,  17  Sup.  Ct.  Rep. 
581. 

If  such  taking  be  considered  as  for  the 
private  benefit  of  other  appropriators,  then 
the  taking  of  private  property  for  a  private 
use  is  equally  in  violation  of  the  due  process 
provision  of  the  Constitution. 

iLeave  granted  to  present  petition  for  re- 
hearing herein  within  thir^  days,  on  motion 
of  Mr.  Evuis  Browne  in  behalf  of  counsel 
for  the  appellant. 

June  12,  1916. 
40  li.  ed. 


Davidson  v.  New  Orleans,  96  U.  S.  97,  24 
L.  ed.  616. 

Even  when  the  state  desires  to  take  the 
property  of  an  individual  for  public  use, 
and  proceeds  to  do  so  by  the  ordinary  pro- 
cess of  eminent  domain,  the  owner  cannot 
be  made  to  bear  any  portion  of  the  expense 
incident  to  such  proceeding,  either  in  the 
trial  court,  or  in  any  appellate  court  to 
which  the  proceeding  may  be  taken  by  either 
side. 

San  Diego  Land  &  Town  Co.  ▼.  Neale,  88 
Cal.  67,  11  L.RJL  604,  25  Pac.  977;  San 
Francisco  v.  Collins,  98  Cal.  263,  33  Pac. 
56. 

One  of  the  essentials  of  due  process  of 
law  is  the  existence  of  a  tribunal  having 
jurisdiction  to  decide  the  matter  in  issue. 

Carr  v.  Brown,  20  R.  I.  215,  38  LR.A. 
294,  78  Am.  St  Rep.  855,  38  Atl,  9 ;  Chi- 
cago, B.  &  Q.  R.  Co.  V.  Chicago,  supra; 
Twining  v.  New  Jersey,  211  U.  S.  78,  53 
L.  ed.  97,  29  Sup.  Ct.  Rep.  14. 

The  distinction  between  requiring  one  to 
submit  his  rights  to  a  special  tribunal  hav- 
ing jurisdiction  and  authority  to  make  a 
final  and  binding  adjudication  as  to  the 
rights  of  property,  and  requiring  the  sub- 
mission of  the  same  to  a  mere  ministerial 
board  having  no  such  authority,  has  been 
cjearly  and  emphatically  recognized  by  this 
court. 

United  States  v.  Throckmorton,  4  Sawy. 
42,  Fed.  Cas.  No.  15,121;  Botiller  v. 
Dominguez,  130  U.  S.  238,  32  L.  ed.  926, 
9  Sup.  Ct.  Rep.  525. 

Following  the  same  course  of  reasoning, 
it  has  been  held  that  the  owner  of  a  vested 
water  right  cannot  be  held  liable  for  the 
expenses  of  a  mere  administrative  proceed- 
ing for  the  purpose  of  ascertaining  the  ex- 
tent and  existence  of  his  rights.  This  was 
directly  held  by  the  supreme  court  of  South 
Dakota,  passing  upon  the  water  law  of  that 
state,  in  the  case  of  St.  Germain  Irrig. 
Ditch  Co.  V.  Hawthorne  Ditch  Co.  32  S.  D. 
260,  143  N.  W.  124. 

llie  immunity  of  the  owner  of  a  vested 
right  in  water  from  the  acts  of  the  state 
engineer  under  the  water  law  of  the  state 
of  Nevada  has  been  recently  passed  upon 
by  the  supreme  court  of  the  state  of  Ne- 
vada in  the  case  of  Knox  v.  Kearney,  37 
Nev.  393,  142  Pac  526.  In  that  case  the 
legislature  of  the  state  of  Nevada  had 
passed  an  act  providing  in  substance  the 
same  as  the  Or^on  act  for  a  proceeding 
before  the  state  engineer  for  the  determina- 
tion of  water  rights,  and  requiring  all 
claimants  to  appear  in  such  proceeding  and 
to  set  up  and  establish  their  rights  on  pain 
of  forfeiting  the  same.  Knox,  the  owner  of 
a  vested  water  right,  brought  his  bill  in 
equity  against  the  state  engineer,  alleging 

10A& 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct. 


the  ownership  of  such  right  and  the  threat- 
ened interference  therewith  by  the  state 
engineer,  pursuant  to  the  provisions  of  that 
act.  In  fact,  his  complaint  was,  in  all  sub- 
stantial particulars,  tiie  same  as  the  bill  of 
complaint  here  under  review. 

See  also  Anderson  v.  Kearney,  37  Nev. 
314,  142  Pac.  803. 

The  opinion  of  the  United  States  district 
court,  in  sustaining  the  demurrer  to  the  bill 
of  complaint  in  the  case  at  bar,  is  based  on 
the  contention  that  it  was  optional  with 
complainant  to  appear  or  not  to  appear  in 
the  adjudication  proceeding.  This  is  con- 
trary to  the  decision  of  the  supreme  court 
of  Oregon,  construing  this  act. 

Pacific  Livestock  Co.  y.  Cochran,  73  Or. 
417,  144  Pac.  668. 

Of  course  it  is  well  settled  that  a  decision 
of  the  highest  court  of  a  state,  construing 
an  act  of  the  legislature  of  the  state,  is 
binding  and  conclusive  in  the  Federal 
courts. 

Forepaugh  v.  Delaware,  L.  &  W.  R.  Co.  5 
L.R.A.  608,  note;  Esty,  Fed.  Proc.  9th  ed. 
pp.  808  et  seq. 

If  the  proceeding  to  adjudicate  water 
rights  be  held  to  be  a  judicial  proceeding 
for  the  final  determination  of  water  rights, 
the  Federal  court,  having  acquired  jurisdic- 
tion over  the  subject-matter,  as  between  the 
complainant  and  the  defendants,  the  Wil- 
liam Hanley  Company,  the  Silvies  River 
Irrigation  Company,  and  Harney  Valley  Im- 
provement Company,  before  such  proceeding 
was  instituted,  that  court  should  retain  that 
jurisdiction  to  the  end,  and  should  enjoin 
the  defendants  from  prosecuting  and  pro- 
ceeding in  the  state  tribunal  in  such  a  man- 
ner as  to  interfere  with  the  prior  jurisdic- 
tion of  the  Federal  court;  and  the  bill  of 
complaint  herein  should  have  been  sustained 
for  the  purpose  of  protecting  that  jurisdic- 
tion and  giving  that  relief. 

Taylor  v.  Taintor,  16  Wall.  366,  370,  21 
L.  ed.  287,  290;  Harkrader  y.  Wadley,  172 
U.  S.  148,  164,  43  L.  ed.  399,  404,  19  Sup. 
Ct.  Rep.  119;  Prout  v.  Starr,  188  U.  S. 
537,  644,  47  L.  ed.  684,  587,  23  Sup.  Ct. 
Rep.  398;  Ex  parte  Young,  209  U.  S.  123, 
161,  162,  52  L.  ed.  714,  729,  730,  13  L.R.A. 
(N.S.)  932,  28  Sup.  Ct.  Rep.  441,  14  Ann. 
Cas.  764;  Rickey  Land  &  Cattle  Co.  v. 
Miller  &  Lux,  218  U.  S.  258,  262,  54  L.  ed. 
1032,  1038,  31  Sup.  Ct.  Rep.  11;  Pitt  v. 
Rodgers,  43  C.  C.  A.  600,  104  Fed.  390; 
Mercantile  Trust  &  D.  Co.  v.  Roanoke  &  S. 
R.  Co.  109  Fed.  6;  Iron  Mountain  R.  Co. 
v.  Memphis,  37  C.  C.  A.  410,  96  Fed.  131 ; 
Home  Ins.  Co.  v.  Virginia-Carolina  Chemical 
Co.  109  Fed.  689;  Starr  v.  Chicago,  R.  I. 
k  P.  R.  Co.  110  Fed.  6;  State  Trust  Co. 
v.  Kansas  City,  P.  &  6.  R.  Co.  110  Fed. 
12;  Central  Trust  Co.  r.  Western  North 
1086 


Carolina  R.  Co.  112  Fed.  471;  Stewart  ▼. 
Wisconsin  C.  R.  Co.  117  Fed.  782;  Equitable 
Trust  Co.  V.  Pollitz,  124  C.  C.  A.  634,  207 
Fed.  74 ;  French  v.  Hay,  22  Wall.  238,  253, 
22  L.  ed.  854,  858;  Dietzsch  v.  Huidekoper, 
103  U.  S.  494,  26  L.  ed.  497;  Western  U. 
Teleg.  Co.  v.  Louisville  &  N.  R.  Co.  120 
C.  C.  A.  257,  201  Fed.  922;  St  Louis,  I.  M. 
ft  S.  R.  Co.  v.  Bellamy,  211  Fed.  172. 

Where  a  case  is  removed,  a  bill  in  eqiutj 
will  lie  to  restrain  proceedings  in.  a  state 
court. 

Madisonville  Traction  Co.  y.  St.  Bernard 
Min.  Co.  196  U.  S.  239,  244,  49  L.  ed.  462,. 
464,  25  Sup.  Ct.  Rep.  251 ;  Wagner  v.  Drake, 
31  Fed.  853;  Baltimore  &  0.  R.  Co.  v.  Ford, 
35  Fed.  173;  Abeel  v.  Culberson,  56  Fed. 
331;  Mutual  L.  Ins.  Co.  v.  Langley,  145  Fed. 
415;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Stepp,. 

151  Fed.  908,  affirmed  in  22  L.RJL(N.S.) 
350,  90  C.  C.  A.  431,  164  Fed.  785;  McAlister 
V.  Chesapeake  &  O.  R.  Co.  85  C.  C.  A.  316, 
157  Fed.  743,  13  Ann.  Cas.  1068;  Donovan 
V.  Wells,  F.  k  Co.  22  L.ILA.(N.S.)  1250, 
94  C.  C.  A.  609,  169  Fed.  371. 

The  proceeding  was  removable: 

(a)  The  suggestion  that  a  (Hroceeding  to 
determine  water  rights  is  in  the  nature  of 
a  partition  suit,  and  therefore  not  remov- 
able, is  not  sustainable,  for  the  reason  that 
it  is  universally  held  that  appropriatora  of 
water  are  not  tenants  in  common,  nor  joint 
tenants,  but  that  the  right  of  each  is  sepa- 
rate. 

Foreman  v.  Boyle,  88  Cal.  290,  26  Pac. 
94;  Senior  v.  Anderson,  138  Cal.  723,  72 
Pac.  349;  Norman  v.  Corbley,  32  Mont.  195,. 
79  Pac.  1059;  Telluride  v.  Davis,  33  Colo. 
355,  108  Am.  St.  Rep.  101,  80  Pac.  1051; 
Hildreth  v.  Montecito  Creek  Water  Co.  13» 
Cal.  22,  72  Pac  395;  McMuUen  v.  Halleek 
Cattle  Co.  193  Fed.  282;  SUnbrough  v. 
Cook,  3  L.R.A.  400,  38  Fed.  369;  Connell  r. 
Smiley,  156  U.  S.  335,  39  L.  ed.  443,  15  Sup. 
Ct.  Rep.  353;  Sharp  v.  Whiteside,  19  Fed. 
150;  Fritden  v.  Boatmen's  Bank,  212  U.  S. 
364,  53  L.  ed.  551,  29  Sup.  Ct.  Rep.  366; 
Elkins  V.  Howell,  140  Fed.  157;  Mississippi 
&  R.  River  Boom  Co.  v.  Patterson,  98  U.  S. 
403,  25  L.  ed.  206;  Pacific  R.  Removal  Cases, 
115  U.  S.  1,  29  L.  ed.  319,  5  Sup.  Ct.  Rep. 
1113;  Searl  v.  School  Dist.  124  U.  S.  197, 
31  L.  ed.  415,  8  Sup.  Ct.  Rep.  460;  Madison- 
ville Traction  Co.  v.  St.  Bernard  Min.  Co. 
196  U.  S.  239,  49  L.  ed.  462,  25  Sup.  Ct. 
Rep.  251 ;  Sugar  Creek,  P.  B.  &  P.  C.  R.  Co 
V.  McKell,  75  Fed.  34;  Deepwater  R.  Co. 
V.  Western  Pocahontas  Coal  ft  Lumber  Co. 

152  Fed.  824. 

(b)  The  claim  that  the  proceeding  is  not 
judicial,  because  the  board  has  no  power  to 
make  an  adjudication  of  the  rights  of  the 
claimants,  is  unfounded  under  the  terms  of 
the  act. 

141  U.  8. 


J  915. 


PACIFIC  LIVE  STOCK  CO.  v.  LEWIS. 


Wattles  V.  Baker  County,  69  Or.  255,  117 
Pac.  417;  Gray,  Nature  k  Sources  of  Law, 
p.  110. 

(c)  If  the  suggestion  be  adopted  that  the 
proceeding  is,  to  all  intents  and  purposes, 
in  the  court  all  the  time,  and  the  board  is 
in  effect  a  standing  examiner,  created  by 
the  state,  charged  with  the  duty,  when  re- 
quested by  the  users  of  water,  of  examining 
into  and  reporting  to  the  court  the  facts 
on  which  the  rights  of  the  various  claimants 
are  based,  so  tliat  such  rights  may  be  au- 
thoritatively settled  and  determined  by  a 
judicial  tribunal, — then  we  are  aa  much  en- 
titled to  have  the  evidence  taken  and  the 
facts  found  in  the  Federal  courts  as  we  are 
to  have  the  adjudication  made  therein. 

Prentis  v.  Atlantic  Coast  Line  Co.  211 
U.  S.  210,  238,  63  L.  ed.  150,  163,  29  Sup. 
Ct.  Rep.  67;  Smyth  v.  Ames,  169  U.  S.  478, 
42  L.  ed.  838,  18  Sup.  Ct.  Rep.  418;  Willcox 
V.  Consolidated  Gas  Co.  212  U.  S.  19,  63 
L.  ed.  382,  48  L.R.A.(N.S.)  1134,  29  Sup. 
Ct.  Rep.  192,  16  Ann.  Cas.  1034;  Des  Moines 
City  R.  Co.  V.  Des  Moines,  161  Fed.  864. 

(d)  The  third  ground  relied  upon,  name- 
ly, that  the  proceeding  is  by  the  state,  finds 
no  support  in  the  act.  The  state  has  no 
title  to  the  water  whatever. 

Howell  V.  Johnson,  89  Fed.  666;  Palmer 
▼.  Railroad  Commission,  167  Cal.  163,  138 
Pac.  997;  Keene  v.  Smith,  44  Or.  625,  76 
Pac.  1066. 

(e)  The  main  ground,  however,  for  the 
contention  that  the  proceeding  is  not  remov- 
able, is  the  claim  that  the  proceeding  is  ad- 
ministrative, and  not  judicial.  The  pro- 
ceeding is  judicial  no  matter  what  may  be 
the  nature  of  the  action  of  certain  officials 
therein. 

People  ez  rel.  Morgan  v,  Hayne,  83  Cal. 
Ill,  7  L.R.A.  348,  17  Am.  St.  Rep.  217,  23 
Pac.  1;  Re  Silvies  River.  199  Fed.  496. 

(f)  There  is  one,  and  only  one,  proceed- 
ing provided  or  contemplated  from  the  in- 
auguration of  the  proceeding. 

The  jurisdiction  of  the  Federal  courts 
eannot  in  any  way  be  affected,  abridged,  or 
defeated  by  state  legislation  prescribing  new 
or  different  modes  of  procedure  for  the  de- 
termination of  civil  rights,  or  creating  spe- 
cial tribunals  to  determine  such  rights,  or 
prescribing  new  forms  of  procedure  for  the 
ascertainment  and  determination  thereof. 

Pennsylvania  v.  Wheeling  &  6.  Bridge,  13 
How.  618,  662,  14  L.  ed.  249,  268;  Dodge  v. 
Woolsey,  18  How.  331,  346,  16  L.  ed.  401, 
407;  Barber  y.  Barber,  21  How.  682,  689, 
16  L.  ed.  226,  229;  Payne  v.  Hook,  7  Wall. 
425,  19  L.  ed.  260;  Mississippi  Mills  ▼. 
Cohn,  150  U.  S.  202,  37  L.  ed.  1062,  14  Sup. 
Ct.  Rep.  76;  Williams  v.  Crabb,  69  L.R.A. 
425,  54  C.  C.  A.  213,  117  Fed.  193;  Ray  v. 
Tatum,  18  C.  C.  A.  464,  30  U.  &  App.  636, 
60  li*  ed. 


72  Fed.  112;  Robinson  v.  Campbell,  3  Wheat. 
212,  4  L.  ed.  372;  Lorman  v.  Clarke,  2  Mo- 
Lean,  568,  Fed.  Cas.  No.  8,516;  Fletcher  v. 
Morey,  2  Story,  565,  Fed.  Cas.  No.  4,864; 
Gordon  v.  Hobart,  2  Sumn.  401,  Fed.  Cas. 
No.  6,609 ;  Parsons  v.  Lyman,  5  Blatchf .  170, 
Fed.  Cas.  No.  10,780;  Lawrence  v.  Nelson, 
143  U.  S.  215,  36  L.  ed.  130,  12  Sup.  Ct. 
Rep.  440;  Suydam  v.  Broadnoz,  14  Pet.  67, 
10  L.  ed.  357;  Union  Bank  v.  Vaiden,  18 
How.  503,  16  L.  ed.  472;  Hyde  v.  Stone,  20 
How.  170,  175,  15  L.  ed.  874,  875;  Hess  v. 
Reynolds,  113  U.  S.  73,  28  L.  ed.  927,  5  Sup. 
Ct.  Rep.  377;  Borer  v.  Chapman,  110  U.  S. 
587,  30  L.  ed.  632,  7  Sup.  Ct.  Rep.  342; 
Byers  v.  McAuley,  149  U.  S.  008,  37  L.  cd. 
867,  13  Sup.  Ct.  Rep.  906;  Brun  v.  Mann, 

12  L.R.A.(N.S.)  154,  80  C.  C.  A.  513,  151 
Fed.  145;  Craigie  v.  McArthur,  4  Dill.  474, 
Fed.  Caa.  No.  3,341;  Foley  v.  Hartley,  72 
Fed.  570;  Re  Foley,  76  Fed.  390;  Toms  v. 
Owen,  62  Fed.  417 ;  Wood  v.  Paine,  66  Fed. 
807;  Heaton  v.  Thatcher,  59  Fed.  731;  Wick- 
ham  V.  Hull,  60  Fed.  326;  Zimmerman  v. 
Carpenter,  84  Fed.  747;  Brown  v.  Ellis,  86 
Fed.  357;  Domestic  &  F.  Missionary  Soc.  v. 
Gaither,  62  Fed.  422 ;  Continental  Nat.  Bank 
v.  Heilman,  81  Fed.  36;  Brendel  v.  Charch, 
82  Fed.  262;  Re  Cilley,  58  Fed.  977;  Com- 
stock  V.  Heron,  6  C.  C.  A.  266,  6  U.  S.  App. 
626,  56  Fed.  803;  Martin  v.  Fort,  27  C.  C. 
A.  428,  64  U.  S.  App.  316,  83  Fed.  19; 
Hayes  y.  Pratt,  147  U.  S.  657,  37  L.  ed. 
279,  13  Sup.  Ct.  Rep.  503;  Jordan  v.  Tay- 
lor, 98  Fed.  646;  Hale  v.  Coffin,  114  Fed. 
574;  Hale  v.  Tyler,  115  Fed.  834;  Carrau 
•v.   O'Calligan,   60   C.   C.  A.   347,   125   Fed. 

663;  Gallivan  v.  Jones,  42  C.  C.  A.  408,  102 
Fed.  427;  Re  Jarnecke  Ditch,  69  Fed.  161; 
Colorado  Midland  R.  Co.  v.  Jones,  29  Fed. 
193;  Goldey  v.  Morning  News,  156  U.  S. 
518,  523,  39  L.  ed.  617,  619,  15  Sup.  Ct.  Rep. 
559;  Black's  Dillon,  Removal  of  Causes, 
§§  22,  90,  148;  Simkins,  Federal  £q.  Suit, 
p.  828;  Barney  v.  Globe  Bank,  6  Blatchf. 
107,  Fed.  Cas.  No.  1,031;  Richmond  v. 
Brookings,  48  Fed.  241. 

A  proceeding  for  the  adjudication  of  rela- 
tive water  rights  as  between  private  indi- 
viduals ia  a  judicial  proceeding,  and  is  a 
case  within  the  meaning  of  the  Federal  stat- 
utes regarding  the  right  of  removal. 

1.  For  definition  of  judicial  power,  judi- 
cial proceedings,  actions,  suits,  and  cases, 
see: 

Johnston  v.  Com.  1  Bibb  698;  State  ex 
rel.  Newell  v.  Newell,  13  Mont.  302,  34  Pac. 
28;  People  ex  rel.  Bendon  v.  County  Judge, 

13  How.  Pr.  398;  McBride's  Appeal,  72  Pa. 
480;  Jacoby  v.  Shaler,  105  Pa.  610;  Cohen 
V.  Virginia,  6  Wheat.  407,  5  L.  ed.  291; 
Marion  v.  Ganby,  68  Iowa,  142,  26  N.  W. 
40;  Harris  v.  Phoenix  Ins.  Co.  36  Conn.  310; 
Osbom  V.  Bank  of  United  States,  9  Wheat. 

1087 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TkBM, 


738,  819,  6  L.  ed.  204,  223;  Ex  parte  Milli- 
gan,  4  Wall.  2,  18  L.  ed.  281;  People  v. 
Board  of  Education,  54  Cal.  375;  Sinking 
Fund  Cases,  99  U.  S.  761,  25  L.  ed.  516; 
Smith  V.  Strother,  68  Cal.  194,  8  Pac.  852; 
Wulzen  y.  San  Francisco,  101  Cal.  15,  40 
Am.  St.  Rep.  17,  35  Pac.  353;  Qrider  v. 
Tally,  77  Ala.  424,  54  Am.  Rep.  65;  Hereford 
▼.  People,  197  111.  222,  64  N.  E.  310;  Mar- 
tin y.  Simpkins,  20  Colo.  438,  38  Pac.  1092. 

2.  The  tribunals  given  jurisdiction  in  the 
adjudication  proceeding  are  courts. 

3  Bl.  Com.  23;  Stenberg  v.  SUte,  48  Neb. 
312,  67  N.  W.  190;  Tissier  v.  Rhein,  130  111. 
110,  22  N.  E.  848;  Re  Allison,  13  Colo.  528, 
10  L.R.A.  790,  16  Am.  St.  Rep.  224,  22  Pac. 
820;  Shoultz  v.  McPheeters,  79  Ind.  376; 
Mason  v.  Woemer,  18  Mo.  570;  White 
County  y.  Gwin,  136  Ind.  562,  22  L.R.A. 
402,  36  N.  E.  237;  Malone  v.  Murphy,  2 
Kan.  250;  People  ex  rel.  Garling  y.  Van 
Allen,  55  N.  Y.  31. 

3.  Proceedings  to  adjudicate  water  rights 
before  state  boards  are  held  to  be  judicial. 

Wattles  v.  Baker  County,  59  Or.  255,  117 
Pac.  417;  Cleghorn's  Appeal,  3  Haw.  216; 
Palolo  Land  ft  Improv.  Co.  y.  Territory,  18 
Haw.  30;  Thorp  v.  Woolman,  1  Mont.  168, 
8  Mor.  Min.  Rep.  87;  Farm  Invest.  Co.  y. 
Carpenter,  9  Wyo.  110,  50  L.R.A.  747,  87 
Am.  St.  Rep.  918,  61  Pac.  258;  Whiting  y. 
Townsend,  57  Cal.  515;  Tyler  y.  Registration 
Ct.  Judges,  175  Mass.  71,  51  L.R.A.  433,  55 
N.  E.  812;  Anderson  v.  Kearney,  37  Nev. 
314,  142  Pac.  803;  3  Kinney,  Irrigation,  2d 
ed.  p.  2901. 

4.  The  fact  that  the  proceeding  is  before 
the  state  water  board  does  not  prevent  it 
from  being  a  "case,"  and  removable. 

Waha-Lewiston  Land  ft  Water  Co.  v. 
Lewiston-Sweetwater  Irrig.  Co.  158  Fed. 
137;  Mississippi  ft  R.  River  Boom  Co.  v. 
Patterson,  98  U.  S.  403,  25  L.  ed.  206; 
Pacific  R.  Removal  Cases,  115  U.  S.  1,  29 
L.  ed.  319,  6  Sup.  Ct.  Rep.  1113;  Searl  v. 
School  Dist.  124  U.  S.  197,  31  L.  ed.  415,  8 
Sup.  Ct.  Rep.  460;  Madisonville  Traction 
Co.  y.  St.  Bernard  Min.  Co.  196  U.  S.  239, 
49  L.  ed.  462,  25  Sup.  Ct.  Rep.  251;  Colorado 
Midland  R.  Co.  v.  Jones,  29  Fed.  193; 
Mineral  Range  R.  Co.  y.  Detroit  ft  L.  S. 
Copper  Co.  25  Fed.  515. 

5.  The  power  here  claimed  to  be  "non- 
judicial" has  in  other  cases  been  held  or 
assumed  to  be  so  strictly  "judicial"  that  it 
could  be  vested  only  in  a  court  or  other  body 
authorized  to  perform  judicial  functions. 

People  ex  rel.  Kern  v.  Chase,  165  III.  527, 
36  L.R.A.  105,  46  N.  E.  454;  People  ex  rel. 
Deneen  v.  Simon,  176  111.  165,  44  L.R.A.  801, 
68  Am.  St.  Rep.  175,  52  N.  E.  910;  SUte 
ex  rel.  Monnett  v.  Guilbert,  56  Ohio  St.  575, 
38  L.R.A.  519,  60  Am.  St.  Rep.  756,  47  N.  E. 
551 ;  Tyler  y.  Judges  of  Ct.  of  Registration, 
1088 


175  Mass.  71,  51  L.ILA.  433,  65  N.  E.  812; 
State  ex  rel.  Douglas  y.  Westfall,  86  Mina. 
437,  57  L.R.A.  297,  89  Am.  St.  Rep.  671,  89 
N.  W.  175;  People  ex  rel.  Smith  y.  Crin- 
man,  41  Colo.  450,  92  Pac.  949;  AmeriesB 
Land  Co.  y.  Zeiss,  219  U.  S.  47,  66  Lw  ed. 
82,  31  Sup.  Ct  Rep.  200. 

6.  Under  the  act,  all  claimants  in  the 
stream  are  defendants  and  parties  to  the  s^ 
tion,  whether  they  appear  or  suffer  a  de- 
fault. 

Vanderpoel  y.  Van  Balkenburgh,  6  N.  Y. 
198;  Bonnemort  y.  Gill,  167  Mass.  340,  45 
N.  E.  768;  Botiller  y.  Dominquez,  130  U.  S. 
238,  32  L.  ed.  926,  9  Sup.  Ct.  Rep.  525; 
Robbins  y.  Chicago^  4  WalL  657,  672,  18 
L.  ed.  427,  430. 

7.  In  a  proceeding  under  the  act,  all  un- 
known claimants  are  adverse  parties  from 
the  beginning.  The  mere  possibility  of  td- 
verse  parties  would,  however,  be  snlBcient  to 
render  a  proceeding  ''judicial." 

Re  Pacific  R.  Commission,  32  Fed.  241; 
Ormsby  y.  Webb,  134  U.  S.  47,  33  L.  ed.  805, 
10  Sup.  Ct.  Rep.  478. 

8.  Various  classes  of  proceedings  held  to 
be  judicial,  analogous  to  those  authorized 
by  the  act,  here  claimed  to  be  nonjudicial 
(a)  The  Torrens  act  of  the  various  statei, 
and  the  burnt  records  act  of  Illinois  and 
California,  (b)  Proceediings  for  the  con- 
firmation of  tax  titles,  etc. 

Worthen  v.  Ratcliffe,  42  Ark.  330;  Parker 
V.  Overman,  18  How.  137,  15  L.  ed.  818; 
Thomas  v.  Lawson,  21  How.  381,  16  L.  ed. 
82. 

(c)  Suits  under  general  equity  jurisdie- 
tion  to  establish  title. 

Sharon  v.  Tucker,  144  U.  S.  533,  86  L.  el 
532,  12  Sup.  Ct.  Rep.  720;  Blight  v.  Banks, 
6  T.  B.  Mon.  192,  17  Am.  Dec.  136;  Hord 
V.  Baugh,  7  Humph.  576,  46  Am.  Dec  91; 
Montgomery  y.  Kerr,  6  Coldw.  199;  Bohart 
V.  Chamberlain,  99  Mo.  622,  13  S.  W.  85; 
Gwin  V.  Brown,  21  App.  D.  C.  312 ;  Johnson 
V.  Thomas,  23  App.  D.  C.  148;  Harvey  v. 
Miller,  24  App.  D.  C.  53;  Moody  v.  Hoi- 
comb,  26  Tex.  714. 

9.  Determination  even  of  future  ri|^ts  ii 
judicial. 

Bispham,  £q.  pp.  51,  607;  Cross  y.  Be 
Valle,  1  Wall.  5,  15,  17  L.  ed.  616,  519; 
Sharon  v.  Tucker,  144  U.  S.  633,  36  L.  ed. 
532,  12  Sup.  Ct.  Rep.  720;  Pom.  £q.  Jul. 
§  17L 

The  controversy  between  the  petitioner! 
who  instituted  the  adjudication  proceeding 
and  the  Pacific  Live  Stock  Company  is  s 
separable  controversy  which  that  company 
is  entitled  to  remove  into  the  Federal  court 

McMuUen  v.  Halleck  Cattle  Co.  193  Fed. 
282;  Stanbrough  v.  Cook,  3  L.R.A.  400,  38 
Fed.  369;  Connell  v.  Smiley,  166  U.  S.  335, 
39  L.  ed.  443,  15  Sup.  Ct.  Rep.  363;  Sharp 

141  U.  & 


1916. 


PACIFIC  LIVE  STOCK  CO.  v.  LEWIS. 


▼.  Whiteside,  19  Fed.  160 ;  Fritzlen  ▼.  Boat- 
men's Bank,  212  U.  S.  364,  53  l^.  ed.  661, 
29  Sup.  Ct.  Rep.  366;  Elkins  ▼.  Howell,  140 
Fed.  157. 

The  same  rule  has  been  applied  to  a  con- 
demnation suit  prosecuted  against  several 
defendants  owning  separate  parcels  of  land. 

Mississippi  &,  R.  River  Boom  Co.  v.  Pat- 
terson, 98  U.  S.  403,  25  L  ed.  206;  Pacific 
R.  Removal  Cases,  115  U.  S.  1,  29  L.  ed. 
319,  5  Sup.  Ct.  Rep.  1113;  Searl  v.  School 
Dist.  124  U.  S.  197,  31  L.  ed.  416,  8  Sup. 
Ct.  Rep.  460;  Madisonville  Traction  Co.  v. 
St.  Bernard  Min.  Co.  196  U.  S.  239,  49  L. 
ed.  462,  25  Sup.  Ct.  Rep.  251 ;  Sugar  Creek, 
P.  B.  &  P.  C.  R.  Co.  V.  McKell,  75  Fed.  34; 
Deepwater  R.  Co.  ▼.  Western  Pocahontas 
Coal  &  Lumber  Co.  152  Fed.  824. 

The  mere  fact  that  the  legislature  au- 
thorizes several  suits  to  be  brought  in  the 
same  proceeding  cannot  affect  the  right  of 
removal. 

Barney  v.  Latham,  103  U.  S.  205,  26  L. 
ed.  514 ;  Hoge  v.  Canton  Ins.  Office,  103  Fed 
613;  Union  P.  R.  Co.  v.  Myers,  116  U.  S.  1, 
22,  29  L.  ed.  319,  327,  6  Sup.  Ct.  Rep.  1113; 
Deepwater  R.  Co.  t.  Western  Pocaliontaa 
Coal  ft  Lumber  Co.  152  Fed.  824. 

On  appellees'  own  interpretation  of  the 
nature,  character,  and  effect  of  the  adjudi- 
cation proceeding,  the  same  is  clearly  in  vio- 
lation of  fundamental  constitutional  prin- 
ciples. 

The  legislature  has  authorized  a  proceed- 
ing for  the  determination  of  water  rights, 
w^hich  is  not  judicial,  but  purely  adminis- 
trative, and  merely  preliminary  to  the  in- 
stitution of  judicial  proceedings  in  the  cir- 
cuit court. 

Re  Willow  Creek,  74  Or.  610,  144  Pac. 
605,  146  Pac.  475;  Re  Silvies  River,  199 
Fed.  496. 

Any  owner  of  \  water  right  is  required 
to  appear  in  this  purely  administrative  pro- 
ceeding and  set  up  and  defend  his  right  on 
pain  of  forfeiting  it. 

Pacific  Livestock  Co.  v.  Cochran,  73  Or. 
417,  144  Pac.  668. 

In  such  purely  administrative  proceeding 
the  State  Water  Board  thereupon  proceeds 
to  take  evidence  ew  parte,  and  without  any 
opportunity  or  right  of  cross-examination. 

In  such  purely  administrative  proceeding 
the  State  Water  Board  collects  data  relating 
to  the  various  rights  on  the  stream  entirely 
ex  parte  and  without  any  opportunity  for 
cross-exam  inat  ion . 

The  conclusions  of  the  State  Water  Board 
are  based  either  wholly  or  partially  on  this 
merely  ex  parte,  hearsay,  non-oathbound  evi- 
dence, with  no  opportunity  to  cross-examine 
or  to  be  confronted  with  the  witnesaet 
gathering  or  giving  it. 
•0  li.  ed. 


Anyone  filing  his  claim  in  this  merely  ad- 
ministrative proceeding  is  required  to  pay 
an  arbitrary  sum  of  money  in  the  nature  of 
a  tax  on  his  land. 

Ibid. 

This  purely  administrative  determination, 
pending  judicial  proceedings  to  which  it  is 
merely  preliminary,  possibly  extending  over 
several  years,  is  enforced  as  a  judgment. 

Wattles  V.  Baker  County,  69  Or.  266,  117 
Pac.  417. 

Under  the  decisions  of  the  supreme  court 
of  the  state,  this  purely  administrative  de- 
termination is  prima  facie  correct;  in  other 
words,  anyone  who  questions  it  must  affirm- 
atively prove  that  it  is  wrong. 

Re  Willow  Creek,  supra. 

Any  determination  based  upon  informa- 
tion gathered  in  an  informal  manner  with- 
out an  opportunity  to  confront  and  cross- 
examine  the  witness  is  in  violation  of  funda- 
mental constitutional  principles. 

Interstate  Commerce  Commission  v.  Louis- 
ville A  N.  R.  Co.  227  U.  S.  89.  57  L.  ed. 
432,  33  Sup.  Ct.  Rep.  185;  Whitfield  v. 
Hanges,  138  C.  C.  A.  199,  222  Fed.  764; 
United  States  v.  Baltimore  &  O.  S.  W.  R. 
Co.  226  U.  S.  14,  57  L.  ed.  104,  33  Sup.  Ct. 
Rep.  6;  Stadtlander  v.  New  York  Edison 
Co.  P.U.R.1916B,  688. 

None  of  the  cases  based  on  the  "co-owner" 
doctrine  hold  that  ownership  can  be  de- 
termined in  an  administrative  proceeding. 

Ohio  Oil  Co.  V.  Indiana,  177  U.  S.  190,  44 
L.  ed.  729,  20  Sup.  Ct.  Rep.  670,  20  Mor. 
Min.  Rep.  466;  Lindsley  v.  Natural  Car- 
bonic Gas  Co.  220  U.  S.  61,  65  L.  ed.  369,  31 
Sup.  Ct.  Rep.  337,  Ann.  Cas.  1912C,  160; 
Hudson  County  Water  Co.  v.  McCarter,  209 
U.  S.  349,  62  L.  ed.  828,  28  Sup.  Ct.  Rep. 
529,  14  Ann.  Cas.  560. 

The  power  to  establish  rules  of  evidence 
does  not  authorize  the  state  to  make  a  mere 
administrative  fiat  prima  facie  evidence  of 
ownership. 

Lindsley  v.  Natural  Carbonic  Gas  Co.  220 
U.  S.  61,  66  L.  ed.  369,  31  Sup.  Ct.  Rep. 
337,  Ann.  Cas.  1912C,  160;  Bailey  v.  Ala- 
bama, 219  U.  S.  219,  66  L.  ed.  191,  31  Sup. 
Ct.  Rep.  146;  Mobile,  J.  &  K.  C.  R.  Co.  r. 
Turnipseed,  219  U.  S.  36,  65  L.  ed.  78, 
32  L.R.A.(N.S.)  226,  31  Sup.  Ct.  Rep.  136, 
Ann.  Cas.  1912A,  463,  2  N.  C.  C.  A.  243; 
People  v.  McBride,  234  111.  146,  123  Am. 
St.  Rep.  82,  84  N.  £.  866,  14  Ann.  Cas.  994; 
SUte  V.  Beswick,  13  R.  I.  211, 43  Am.  Rep.  26. 

The  police  power  is  not  sufficient  to  justi- 
fy an  eop  parte  legislative  determination  of 
property  rights. 

White  V.  Farmers'  Highline  Canal  ft 
Reservoir  Co.  22  Colo.  191,  43  Pac.  1028;  Ft. 
Lyon  Canal  Co.  v.  Arkansas  Valley  Sugar 
Beet  k  Irrigated  Land  Co.  39  Colo.  332,  90 
Plus.  1023;  Com.  ▼.  Alger,  7  Gush.  63. 
69  lost 


SUPREME  COURT  OP  THE  UNITED  STATES. 


Oct.  Tebm, 


Mr.  George  M.  Brown,  Attorney  General 
of  Oregon,  and  Messrs.  George  T.  Ck>chmn 
and  Will  R.  King  argued  the  cause,  and, 
with  Messrs.  J.  0.  Bailey,  James  T.  Chin- 
noek,  and  Percy  A.  Cupper,  filed  a  brief 
for  appellees : 

The  proceedings  to  determine  water  rights 
provided  for  by  the  statutes  of  Oregon,  while 
pending  before  the  State  Water  Board,  are 
administrative  in  character,  the  statutory 
provisions  therefor  are  a  valid  exercise  of 
the  police  power  of  the  state,  and  since  a 
hearing  and  sufficient  notice  are  provided 
for,  the  statutes  attacked  do  not  conflict 
with  any  provision  of  the  14th  Amendment 
to  the  Constitution  of  the  United  States. 

Re  Willow  Creek,  74  Or.  610,  144  Pac. 
505,  146  Pac  475;  Farmers'  Independent 
Ditch  Co.  V.  Agricultural  Ditch  Co.  22 
Colo.  513,  55  Am.  St  Rep.  149,  45  Pac 
444;  Farm  Invest.  Co.  ▼.  Carpenter,  9  Wyo. 
110,  50  L.R.A.  747,  87  Am.  St.  Rep.  918, 
61  Pac.  258 ;  Louden  Irrigating  Co.  v.  Handy 
Ditch  Co.  22  Colo.  102,  43  Pac.  535 ;  Farm- 
ers' Canal  Co.  v.  Frank,  72  Neb.  136,  100  N. 
W.  286 ;  Will^  v.  Decker,  11  Wyo.  496,  100 
Am.  St.  Rep.  939,  73  Pac  210;  Cookinham 
V.  Lewis,  58  Or.  498,  114  Pac  88,  115  Pac. 
342;  Wattles  v.  Baker  County,  59  Or.  261, 
117  Pac  417;  Re  Silvies  River,  199  Fed. 
495;  Montezuma  Canal  Co.  v.  Smith ville 
Canal  Co.  218  U.  S.  371,  385,  54  L.  ed.  1074, 
1080,  31  Sup.  Ct.  Rep.  07 ;  Pacific  Livestock 
Co.  V.  Cochran,  73  Or.  417,  144  Pac.  668; 
Combs  V.  Farmers'  Hig^line  Canal  &  Reser- 
voir Co.  38  Colo.  420,  88  Pac.  396;  Nichols 
V.  Mcintosh,  19  Colo.  22,  34  Pac  278;  Craw- 
ford Co.  V.  Hathaway  (Crawford  Co.  v. 
Hall)  67  Neb.  325,  60  L.R.A.  889,  108  Am. 
St.  Rep.  647,  93  N.  W.  794;  Enterprise  Irrig. 
Dist.  V.  TriState  Land  Co.  92  Neb.  121, 
138  N.  W.  179;  Pacific  live  Stock  Co.  v. 
Lewis,  217  Fed.  95;  Anderson  v.  Kearney, 
37  Nev.  314,  142  Pac.  803;  McCook  Irrig. 
&  Water  Power  Co.  v.  Crews,  70  Neb.  115, 
96  N.  W.  996,  102  N.  W.  249. 

The  determination  and  adjudication  of 
existing  rights  is  a  necessary  and  essential 
part  of  the  regulation  and  control  which  the 
state  has  assumed  over  its  waters  in  the  in- 
terest of  the  people  of  the  state,  and  the 
statutory  proceedings  provided  for  by  the 
legislation  attacked  by  appellant  are  well 
within  the  police  power  of  the  state,  and  a 
necessary  prerequisite  to  the  orderly  distri- 
bution of  the  waters  of  the  state  among 
those  entitled  thereto. 

Farm  Invest.  Co.  v.  Carpenter,  9  Wyo. 
148,  50  L.R.A.  747,  87  Am.  St.  Rep.  918, 
61  Pac  258;  Montezuma  Canal  Co.  v. 
Smithville  Canal  Co.  218  U.  S.  371,  385, 
54  L.  ed.  1074,  1080,  31  Sup.  Ct.  Rep.  67; 
1  Wiel,  Water  Rights,  3d  ed.  S  756,  p.  830; 
White  V.  Farmers'  High-line  Canal  k  Reser- 
lOtO 


voir  Co.  22  Colo.  197,  31  L.R.A.  828,  4S 
Pac  1028f  Com.  v.  Alger,  7  Cush.  84; 
Holden  v.  Hardy,  169  U.  S.  366,  392,  42  U 
ed.  780,  791,  18  Sup.  Ct.  Rep.  383;  Ohio 
Oil  Co.  V.  Indiana,  177  U.  S.  190,  44  L.  ed. 
729,  20  Sup.  Ct.  Rep.  576,  20  Mor.  Min.  Rep. 
466;  Lindsley  v.  Natural  Carbonic  Gas  Co. 
220  U.  S.  61,  77,  55  L.  ed.  309,  377,  31  Sup. 
Ct.  Rep.  337,  Ann.  Cas.  1912C,  160;  Hud- 
son County  Water  Co.  v.  McCarter,  209  U. 
S.  349,  52  L.  ed.  828,  28  Sup.  Ct.  Rep.  539, 
14  Ann.  Cas.  560;  Ft.  Lyon  Canal  Co.  v. 
Arkansas  Valley  Sugar  Beet  &  Irrigated 
Land  Co.  39  Colo.  341,  90  Pac  1023;  Broad 
Run  Invest.  Co.  v.  Deuel  k  S.  Improv.  Co. 
47  Colo.  579,  108  Pac  755;  Ormsby  County 
V.  Kearney,  87  Nev.  314,  142  Pac  803*; 
Clark  V.  Nash,  198  U.  S.  361,  368,  49  L.  ed. 
1085,  1087,  25  Sup.  Ct.  Rep.  676,  4  Ann. 
Cas.  1171;  Fallbrook  Irrig.  Dist  v.  Bradley, 
164  U.  S.  112,  159,  160,  41  L.  ed.  369,  38S, 
389,  17  Sup.  Ct.  Rep.  56;  Enterprise  Irrig. 
Dist.  V.  Tri-SUte  Land  Co.  92  Neb.  121 » 
138  N.  W.  179;  Crawford  Co.  v.  Hathaway 
(Crawford  Co.  v.  Hall)  67  Neb.  325,  60 
L.R.A.  880,  108  Am.  St.  Rep.  647,  93  N. 
W.  794;  Farmers'  Canal  Co.  v.  Frank,  72 
Neb.  136,  100  N.  W.  286;  American  Land 
Co.  V.  Zeiss,  219  U.  S.  47,  60,  55  L.  ed.  82, 
04,  31  Sup.  Ct.  Rep.  200;  Hough  v.  Porter, 
51  Or.  318,  95  Pac  732,  98  Pac  1083,  102 
Pac.  728;  Hamp  v.  State,  19  Wyo.  377,  118 
Pac.  653;  McLean  v.  Farmer's  High  Line 
Canal  &  Reservoir  Co.  44  Colo.  184,  96  Pac 
16;  3  Kinney,  Irrig.  &  Water  Rights,  2d  ed. 
§§  1341,  1568,  pp.  2430,  2842;  Meade,  Irrig. 
Inst.  pp.  6,  80,  82,  274,  369;  Whited  v. 
Cavin,  55  Or.  107,  105  Pac  396;  Carson  v. 
Centner,  33  Or.  515,  43  L.R.A.  130,  52  Pac 
506;  Donnelly  v.  Cuhna,  61  Or.  76,  119  Pac 
331;  Turner  v.  Cole,  31  Or.  159,  49  Pac 
971;  Caviness  v.  La  Grande  Irrig.  Co.  60 
Or.  431,  119  Pac.  731 ;  Andrews  v.  Donnelly, 

59  Or.  147,  116  Pac.  569 ;  Re  Willow  Creek, 
74  Or.  622,  144  Pac.  505,  146  Pac  475; 
Little  Walla  Walla  Irrig.  Co.  v.  Finia  Irrig. 
Co.  62  Or.  351,  124  Pac  666,  125  Pac.  270 ; 
Nevada  Ditch  Co.  v.   Bennett,  30  Or.  91, 

60  Am.  St.  Rep.  777,  45  Pac.  472;  Dreyer 
V.  Illinois,  187  U.  S.  83,  84,  47  L.  ed.  85, 
23  Sup.  Ct.  Rep.  28,  15  Am.  Crim.  Rep. 
253. 

The  proceeding  here  questioned  being  one 
well  within  the  police  powers  of  the  state,  it 
does  not  constitute  a  taking  of  property  in 
any  sense,  and  the  question  of  compensation 
for  property  taken  for  a  public  use  does  not 
enter  into  the  case. 

Barbier  v.  Connolly,  113  U.  S.  27,  31,  28 
L.  ed.  923,  924,  5  Sup.  Ct.  Rep.  357;  Chi- 
cago, B.  &  Q.  R.  Co.  V.  Chicago,  166  U.  S. 
226,  41  L.  ed.  979,  17  Sup.  Ct.  Rep.  581; 
Noble  State  Bank  v.  Haskell,  219  U.  S.  104, 
110,  111,  55  L.  ed.  112,  116,  117,  32  LJtA. 

141  V.  S. 


1016. 


PACIFIC  LIVE  STOCK  CO.  v.  LEWIS. 


(N.8.)  1062,  31  Sup.  Ct.  Rep.  186,  Ann.  Cas. 
1012A,  487. 

The  essential  elements  of  due  process  are, 
first,  notice,  and  second,  opportunity  to  be 
heard. 

Davidson  r.  New  Orleans,  96  U.  S.  97, 
102,  107,  24  L.  ed.  616,  618,  620;  Public 
Clearing  House  v.  Coyne,  194  U.  S.  497,  608, 
48  L  ed.  1092,  1097,  24  Sup.  Ct.  Rep.  789; 
Ballard  v.  Hunter,  204  U.  S.  241,  255,  61  L. 
ed.  461,  471,  27  Sup.  Ct  Rep.  261,  266; 
Sheldon  r.  Hoyne,  261  111.  226,  103  N.  £. 
1021;  Reetz  v.  Michigan,  188  U.  S.  606,  47 
L.  ed.  503,  23  Sup.  Ct.  Rep.  390;  Dreyer  v. 
Illinois,  187  U.  S.  71,  83,  84,  47  L.  ed.  79, 
86,  23  Sup.  Ct.  Rep.  28,  16  Am.  Crim.  Rep. 
263;  Re  Willow  Cre^,  74  Or.  610,  144  Pac 
606,  146  Pac.  476;  Re  Silvies  River,  199 
Fed.  601;  Farm  Invest.  Co.  v.  Carpenter,  9 
Wyo.  134,  60  LR.A.  747,  87  Am.  St.  Rep. 
918,  61  Pac.  258. 

The  appellant  may  be  required  to  appear 
in  these  proceedings  before  the  State  Water 
Board  and  submit  its  claim;  and  should  it 
refuse  to  do  so,  within  the  time  required  by 
statute  and  in  the  manner  therein  provided, 
the  decree  of  the  circuit  court  will  be  final 
and  conclusive,  to  the  same  extent  as  in  any 
other  suit  or  action  in  which  a  party  is  in 
default. 

Pacific  Livestock  Co.  v.  Cochran,  73  Or. 
428,  144  Pac.  668;  Re  Silvies  River,  190 
Fed.  602 ;  Anderson  v.  Kearney,  37  Nev.  314, 
142  Pac.  803;  Miles  v.  Strong,  68  Conn.  287, 
36  AtL  65;  United  States  v.  Throckmorton, 
4  Sawy.  42;  Botiller  v.  Dominguez,  130  U. 
S.  238,  32  L.  ed.  926,  9  Sup.  Ct.  Rep.  626; 
Patterson  v.  Northern  Trust  Ob.  170  111. 
App.  511;  Upshur  County  v.  Rich,  135  U. 
8.  467,  34  L.  ed.  196,  10  Sup.  Ct.  Rep.  651 ; 
Waha-Lewiston  Land  &  Water  Co.  v.  Lewis- 
ton-Sweetwater  Irrig.  Co.  168  Fed.  137;  Re 
Willow  Cre^,  74  Or.  610,  144  Pac.  606,  146 
Pac.  476;  Washington  ex  rel.  Oregon  R.  A. 
Nav.  Co.  V.  Fairchild,  224  U.  8.  610,  66  L. 
ed.  863,  32  Sup.  Ct.  Rep.  636. 

The  statutory  provision  requiring  claim- 
ants at  the  time  of  their  appearance  in  the 
proceedings  to  pay  certain  fees  is  not  a 
denial  of  due  process  of  law  nor  of  the  equal 
protection  of  the  law.  Whatever  other  ex- 
pense the  appellant  may  incur  is  a  matter 
of  discretion  with  it,  optional  to  a  large 
extent,  and  controllable  by  it. 

Flint  V.  Stone  Tracy  Co.  220  U.  8.  108, 
169,  56  L  ed.  389,  420,  31  Sup.  Ct  Rep. 
342,  Ann.  Cas.  1912B,  1312;  .Pacific  Live- 
stock Co.  V.  Cochran,  73  Or.  417,  144  Pac 
668. 

If  it  should  be  the  opinion  of  the  court 
that  the  section  providing  for  fees  is  in- 
valid for  any  reason,  it  is  clearly  separable 
from  the  rest  of  the  act. 

Sheldon  v.  Hoyne,  261  111.  222,  103  N.  E. 
60  Ii«  ed. 


1021 ;  Berea  College  v.  Kentucky,  211  U.  8. 
45,  63  L.  ed.  81,  29  Sup.  Ct.  Rep.  33; 
Reagan  v.  Farmers'  Loan  &  T.  Co.  164 
U.  S.  362,  38  L.  ed.  1014,  4  Inters.  Com.  Rep. 
660,  14  Sup.  Ct.  Rep.  1047;  McMahan  v. 
Olcott.  65  Or.  649,  133  Pac.  836;  Flint  v. 
Stone-Tracy  Co.  220  U.  S.  107,  177,  65  L.  ed. 
389,  424,  31  Sup.  Ct.  Rep.  342,  Ann.  Cas. 
1912B,  1312;  Louisville  &  N.  R.  Co.  v.  Finn, 
235  U.  &  601,  610,  69  L.  ed.  379,  384,  P.  (J. 
R.1916A,  121,  35  Sup.  Ct  Rep.  146. 

The  determination  of  the  State  Water 
Board  is  not  a  final  decree  or  adjudication 
of  rights,  but  is  prima  facie  correct  and 
binding  until  modified  by  the  circuit  court 
in  subsequent  proceedings  in  that  court 

Re  Willow  Creek,  74  Or.  610,  144  Pac. 
605,  146  Pac  476;  Pacific  Livestock  Co.  v. 
Cochran,  73  Or.  429,  144  Pac.  668;  Re 
Silvies  River,  109  Fed.  502;  State  ex  rel 
Atty.  Gen.  v.  Hawkins,  44  Ohio  St  109,  5 
N.  E.  228;  Underwood  v.  McDuffee,  16  Mich. 
368,  93  Am.  Dec  194;  Mackin  v.  Detroit* 
Timkin  Axle  Co.  —  Mich.  — ,  163  N.  W. 
53;  Johnson  v.  WabaiU>  R*  Co.  259  Mo.  634, 
168  8.  W.  713. 

Appeals  may  be  taken  from  administra- 
tive boards  or  officers. 

Carothers  v.  Wheeler,  1  Or.  194 ;  Portland 
V.  Kamm,  6  Or.  362;  Re  Schollmeycr.  69  Or. 
210,  138  Pac.  211 ;  Kadderly  v.  Portland.  44 
Or.  165,  74  Pac.  710,  76  Pac  222;  Washing- 
ton ex  rel.  Oregon  R.  k  Nav.  Co.  v.  Fair- 
child,  224  U.  8.  610.  56  L.  ed.  863,  32  Sup. 
Ct  Rep.  535;  Waha-Lewiston  Land  &  Water 
Co.  V.  Lewiston-Sweetwater  Irrig.  Co.  168 
Fed.  137. 

There  can  be  no  question  but  that  the 
legislature  of  Oregon  has  power  to  make  the 
findings  of  the  board  prima  facie  correct, 
and  to  require  the  claimant  aggrieved 
thereat  to  assume  the  burden  of  establish- 
ing the  incorrectness  of  those  findings. 

Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v.  Inter- 
state Commerce  Commission,  162  U.  8.  184, 
196,  40  L.  ed.  935,  939,  5  Inters.  Com.  Rep. 
391,  16  Sup.  Ct  Rep.  700;  Meeker  v.  Lehigh 
VaUey  R.  Oo.  236  U.  S.  412,  430,  59  L.  ed. 
644,  667,  P.U.R.1915D,  1072,  36  Sup.  Ct. 
Rep.  328,  Ann.  Cas.  1916B,  691. 

It  is  within  the  power  of  the  state  to 
prescribe  the  rules  of  evidence,  and  to  alter 
them,  and  to  put  the  burden  of  proof  upon 
one  or  the  other  of  the  parties  by  creating 
disputable  presumptions. 

Fong  Yue  Ting  v.  United  States,'  149  U. 
8.  698,  729,  37  L.  ed.  905,  918,  13  Sup.  Ct. 
Rep.  1016;  Lindsley  v.  Natural  Carbonic 
Gas  Co.  220  U.  8.  61,  81,  65  L.  ed.  369,  378, 
31  Sup.  Ct.  Rep.  337,  Ann.  Cas.  1912C,  160. 

So,  it  was  held  that  a  statute  making  the 
findings  and  order  of  the  Interstate  Com- 
merce Commission  prima  facie  evidence  of 
facts  therein  stated  in  judicial  proceedings 

lOtl 


SUPREME  COUBT  OF  THE  UNITED  STATES. 


Oct.  Tebv, 


was  merelj  the  establiflhment  of  a  rule  of 
evidence,  and  would  in  no  wise  work  a 
denial  of  due  process  of  law. 

Meeker  t.  L^igh  Valley  R.  06.  and  Cin- 
cinnati, N.  O.  ft  T.  P.  R.  Co.  ▼.  Interstate 
Commerce  Commission,  supra. 

There  can  be  no  constitutional  objection, 
under  the  Federal  Constitution,  because  the 
legislature  of  Oregon  has  provided  a  pro- 
ceeding of  a  special  character  not  known  to 
the  common  law,  or  because  rules  of  evi- 
dence or  forms  and  matters  of  procedure  are 
changed  by  the  act  in  question. 

Tyler  v.  Registration  Ct.  Judges,  175 
Mass.  74,  51  L.RJI.  433,  55  N.  £.  812; 
State  ex  rel.  Oregon  R.  A.  Nav.  Co.  v.  Rail- 
road Commission,  52  Wash.  31,  100  Pac 
179,  224  U.  S.  510,  56  L.  ed.  863,  32  Sup.  Ct 
Rep.  535;  Brown  v.  New  Jersey,  175  U.  S. 
172,  175,  44  L.  ed.  119,  120,  20  Sup.  a. 
Rep.  77 ;  West  v.  Louisiana,  194  U.  S.  258, 
48  L.  ed.  965,  24  Sup.  Ct.  Rep.  650;  Fong 
Yue  Ting  v.  United  States,  149  U.  S.  698. 
729,  37  L.  ed.  905,  918,  13  Sup.  Ct.  Rep. 
1016;  League  v.  Texas,  184  U.  S.  156,  158, 
46  L.  ed.  478,  480,  22  Sup.  Ct.  Rep.  475; 
Holmes  v.  Hunt,  122  Mass.  506,  23  Am. 
Rep.  381;  Meeker  v.  Lehigh  Valley  R.  Co. 
236  U.  S.  412,  430,  59  L.  ed.  644,  657, 
P.U.R.1915D,  1072,  35  Sup.  Ci,  Rep.  328, 
Ann.  Cas.  1916B,  691;  Ballard  v.  Hunter, 
204  U.  S.  255,  51  L.  ed.  471,  27  Sup.  Ct. 
Rep.  261;  HurUdo  v.  California,  110  U.  S. 
516,  537,  28  L.  ed.  232,  239,  4  Sup.  Ct.  Rep. 
Ill,  292;  Duncan  v.  Missouri,  152  U.  S.  377, 
382,  38  L.  ed.  485,  487,  14  Sup.  Ct.  Rep. 
570;  Twining  v.  New  Jersey,  211  U.  S.  78, 
101,  53  L.  ed.  97,  107,  29  Sup.  Ct.  Rep.  14; 
Simon  v.  Craft,  182  U.  S.  427,  436,  45  L.  ed. 
1165,  1170,  21  Sup.  Ct.  Rep.  836. 

The  statute  provides  proper  notice  and 
ample  opportunity  to  be  heard,  and  there- 
fore due  process  of  law  is  afforded. 

Re  Willow  Creek,  74  Or.  614,  144  Pac. 
505,  146  Pac.  475;  Tyler  v.  Registration  Ct. 
Judges,  175  Mass.  79,  51  L.R.A.  433,  55 
N.  E.  812;  Farm  Invest.  Co.  v.  Carpenter,  9 
Wyo.  152,  50  L.ILA.  747,  87  Am.  St.  Rep. 
918,  61  Pac.  258;  Grannis  v.  Ordean,  234 
U.  S.  385,  394,  68  L.  ed.  1363,  1368,  34  Sup. 
Ct.  Rep.  779;  Ballard  v.  Hunter,  204  U.  S. 
241,  254,  51 L.  ed.  461,  471,  27  Sup.  Ct.  Rep. 
261,  266;  Hamilton  v.  Brown,  161  U.  S. 
256,  274,  40  L.  ed.  691,  699,  16  Sup.  Ct. 
Rep.  585;  American  Land  Co.  v.  Zeiss,  219 
U.  S.  47,  70,  55  L.  ed.  82,  98,  31  Sup.  Ct. 
Rep.  200. 

A  hearing  before  final  decree,  with  full 
opportunity  to  appear  and  defend,  after 
notice,  is  all  that  can  be  adjudged  vital 
under  the  guaranty  of  due  process  of  law. 

Holden  y.  Hardy,  169  U.  S.  366,  387,  42 
L.  ed.  780,  789,  18  Sup.  Ct.  Rep.  383;  Iowa 
C.  R.  Co.  T.  Iowa,  160  U.  S.  389,  393,  40 
109S 


L.  ed.  467,  469,  16  Sup.  Ct  Rep.  344;  WU- 
son  V.  Standefer,  184  U.  S.  399,  415,  46  L. 
ed.  612,  619,  22  Sup.  Ct.  Rep.  384;  Hooker 
V.  Los  Angeles,  188  U.  S.  314,  318,  4/  L.  vd. 
487,  491,  63  L.R.A.  471,  23  Sup.  Ct.  Rep. 
395;  Oamegie  Natural  Gaa  Co.  v.  SSwiger, 
72  W.  Va.  557,  46  L.RA.(N.S.)  1080,  7» 
S.  £.  3. 

The  statutes  here  involved  do  not  denj 
appellant  the  equal  protection  of  the  law. 

Duncan  v.  Missouri,  152  U.  S.  377,  382, 
38  L.  ed.  485,  487,  14  Sup.  Ct.  Rep.  570; 
Missouri  v.  Lewis  (Bowman  v.  Lewis)  101 
U.  S.  22,  25  L.  ed.  989;  Connolly  v.  Union 
Sewer  Pipe  Co.  184  U.  S.  540,  46  L.  ed.  679, 
22  Sup.  Ct.  Rep.  431;  Minneapolis  A.  St. 
L.  R.  Co.  V.  Beckwith,  129  U.  S.  26, 32  L.  ed. 
585,  9  Sup.  Ct.  Rep.  207;  Fallbrook  Irrig. 
Dist.  V.  Bradley,  164  U.  S.  112,  155,  41  L. 
ed.  369,  387,  17  Sup.  Ct.  Rep.  56. 

Appellant  cannot,  by  a  bill  in  equity  to 
restrain  the  State  Board  or  tribunal  from 
further  proceedings  under  the  statutes,  re- 
view the  action  of  the  Federal  district  court 
in  remanding  the  proceedings  to  Uie  State 
Board,  upon  the  ground  that  it  had  no 
jurisdiction. 

Ex  parte  Hoard,  105  U.  S.  578,  580,  26 
L.  ed.  1176,  1177;  Ex  parte  Detroit  River 
Ferry  Co.  104  U.  S.  519,  620,  26  L.  ed,  815, 
816;  Morey  v.  Lockhart,  123  U.  S.  56,  57, 
31  L.  ed.  68,  69,  8  Sup.  Ct.  Rep.  65; 
Missouri  P.  R.  Co.  v.  Fita^rald,  160  U.  S. 
556,  40  L.  ed.  536,  16  Sup.  Ct.  Rep.  389; 
Manley  v.  Olney,  32  Fed.  708;  Teel  v. 
Chesapeake  &  O.  R.  Co.  47  LJl.A.(N.S.) 
21,  123  C.  C.  A.  240,  204  Fed.  918. 

A  bill  in  equity  to  restrain  the  State 
Board  from  proceeding  under  a  valid  stat- 
ute cannot  be  maintained  upon  the  theory 
that  appellant  is  deprived  of  its  property 
without  due  process  of  law  because  the 
United  States  district  court  refused  juris- 
diction, and  remanded  the  proceeding  to 
the  State  Board. 

Baltimore  &  0.  R.  Co.  v.  Koontz,  104  U. 
S.  5,  26  L.  ed.  643;  Black's  Dill.  Removal 
of  Causes,  S  225,  p.  366;  Germania  F.  Ins. 
Co.  V.  Francis,  52  Miss.  466,  24  Am.  Rep. 
674;  Knahtla  v.  Oregon  Short  Line  &  l^  N. 
R.  Co.  21  Or.  140,  27  Pac.  91;  Kentucky  v. 
Powers.  201  U.  S.  1,  24,  50  L.  ed.  633.  644. 
26  Sup.  Ct.  Rep.  387,  5  Ann.  Cas.  692. 

The  contention  that,  since  complainant 
has  taken  the  steps  n<H!essary  to  remove  th^ 
proceeding  to  the  Federal  court,  this  suit 
may  be  maintained  to  restrain  either  the 
members  of  the  board  or  the  other  defend- 
ants, is  unfounded,  because  the  Federal 
court  heretofore  remanded  the  proceeding 
to  the  State  Board. 

Madisonville  Traction  Co.  v.  St.  Bernard 
Min.  Oo.  196  U.  S.  239,  245,  49  L.  ed.  462, 
464,  25  Sup.  Ct.  Rep.  251;   Chesapeake  k 

S41  V.  8. 


1916. 


PACIFIC  LIVE  STOCK  CO.  v.  LEWIS. 


0.  R.  Co.  v.  C6ckrell,  232  U.  S.  146,  155,  54 
L.  ed.  544,  548,  34  Sup.  Ct.  Rep.  278; 
Springer  v.  American  Tobacco  Co.  208  Fed. 
199;  Birdaeye  v.  Shaeffer,  37  Fed.  827, 
affirmed  in  140  U.  S.  117,  35  L.  ed.  402,  11 
Sup.  Ct.  Rep.  886;  Missouri  P.  R.  Ca  v. 
Fitzgerald,  160  U.  S.  556,  40  L.  ed.  536,  16 
Sup.  Ct.  Rep.  389. 

The  proceeding  before  the  board  is  ad- 
ministrative, and  though  it  may  subsequent- 
ly become  a  judicial  proceeding,  while  it 
remains  administrative,  and  pending  before 
administrative  officers,  it  is  not  a  suit  or 
action  brought  in  a  state  court,  and  can- 
not be  removed  to  the  Federal  courts. 

Re  Silvies  River,  199  Fed.  501;  Re  Willow 
Creek,  74  Or.  610,  144  Pac.  505,  l46  Pac. 
475;  Kaw  Valley  Drainage  Dist.  v.  Metro- 
politan Water  Co.  108  C.  O.  A.  393,  186 
Fed.  319;  Weston  v.  Charleston,  2  Pet.  449, 
464,  7  L.  ed.  481,  486;  Upshur  County  v. 
Rich,  135  U.  S.  467,  477,  34  L.  ed.  106,  200, 
10  Sup.  Ct.  Rep.  651;  Re  Jarnecke  Ditch, 
69  Fed.  161 ;  Waha-Lewiston  Land  k  Water 
Co.  V.  Lewiston-Sweetwater  Irrig.  Co.  158 
Fed.  137 ;  Reetz  v.  Michigan,  188  U.  S.  505, 
507,  47  L.  ed.  563,  565,  23  Sup.  Ct.  Rep. 
390;  Black's  Dill.  Removal  of  Causes,  p.  28, 
§  16. 

If  it  be  admitted  that  the  proceeding  is 
judicial  in  character,  and  in  a  court,  and 
a  suit,  it  was  not  removable,  because  there 
was  no  separable  controversy. 

Waha-Lewiston  Land  ft  Water  Co.  v. 
Lewiston-Sweetwater  Irrig.  Co.  158  Fed. 
143;  Hough  v.  Porter,  51  Or.  370,  95  Pac. 
732,  98  Pac.  1083,  102  Pac.  728;  Eraser  v. 
Jennison,  106  U.  S.  191,  194,  27  L.  ed.  131, 
132, 1  Sup.  Ct.  Rep.  171;  Re  Jarnecke  Ditch, 
69  Fed.  168;  Torrence  v.  Shedd,  144  U.  S. 
527,  36  L.  ed.  528,  12  Sup.  Ot.  Rep.  726; 
Ayres  v.  WUwall,  112  U.  S.  187,  193.  28 
L.  ed.  693,  695,  5  Sup.  Ct.  Rep.  90;  Fidelity 
Ins.  Trust  &  S.  D.  Co.  v.  Huntington,  117 
U.  S.  280,  281,  29  L.  ed.  808,  899,  6  Sup.  Ct. 
Rep.  733;  McMullen  v.  Halleck  Cattle  Co. 
193  Fed.  282;  Farm  Invest.  Co.  v.  Car- 
penter, 9  Wyo.  134,  50  L.R.A.  747,  87  Am. 
St.  Rep.  918,  61  Pac.  258;  Montezuma  Canal 
Co.  V.  Smithville  Canal  Co.  218  U.  S.  371, 
54  L.  ed.  1074,  31  Sup.  Ct.  Rep.  67. 

Whether  the  proceeding  was  removable  or 
not  at  the  time  appellant  attempted  to  re- 
move it  can  only  be  determined  from  the 
record  in  the  state  tribunal  at  the  time  of 
the  application  for  removal,  and  not  by  the 
allegations  contained  in  the  petition  for  re- 
moval, or  Bubeequent  proceedings  had  before 
the  State  Board. 

Thomas   v.    Great   Northern    R.    Co.    77 
C.  C.  A.  255,  147  Fed.  86;  Louisville  &  N.  R. 
Co.  V.  Wangelin,  132  U.  S.  599,  33  L.  ed.  | 
474,  10  Sup.  Ct.  Rep.  203;  Rife  v.  Lumber  ( 
Underwriters,  122  C.  C.  A.  346,  204  Fed. 
•0  li.  ed. 


32;  Indiana  use  of  Delaware  County  v. 
Alleghany  Oil  Co.  85  Fed.  872;  Corbin  v. 
Van  Brunt,  105  U.  S.  ^76,  577,  26  L.  ed. 
1176;  Re  Jarnecke  Ditch,  69  Fed.  168;  Ex 
parte  Nebraska,  209  U.  S.  436,  441,  52  L.  ed. 
876,  878,  28  Sup.  Ct.  Rep.  581 ;  Arkansas  v. 
KansaCs  &  T.  Coal  Co.  183  U.  S.  185,  188, 
46  L.  ed.  144,  146,  22  Sup.  Ct.  Rep.  47; 
Mountain  View  Min.  &  Mill.  Co.  v.  Mc- 
Fadden,  180  U.  S.  533,  45  L.  ed.  656,  21 
Sup.  Ct.  Rep.  488;  Chicago,  B.  &  Q.  R.  Co. 
V.  WiUard,  220  U.  S.  413,  55  L.  ed.  521,  31 
Sup.  Ct.  Rep.  460;  Powers  v.  Chesapeake 
A  O.  R.  Co.  169  U.  S.  92,  96,  97,  42  L.  ed. 
673-675,  18  Sup.  Ct.  Rep.  264;  Chesapeake 
A,  0.  R.  Co.  V.  Cockrell,  232  U.  S.  146,  153, 
58  L.  ed.  544,  547,  34  Sup.  Ct.  Rep.  278. 

The  proceeding  was  not  removable  because 
the  state  is  a  necessary  party  to  the  pro- 
ceeding. 

Kansas  v.  Colorado,  206  U.  S.  46,  93,  51 
L.  ed.  956,  973,  27  Sup.  Ct.  Rep.  655;  Bou- 
quillas  Land  A.  Cattle  Co.  v.  Curtis,  213 
U.  S.  339,  53  L.  ed.  822,  29  Sup.  Ct.  Rep. 
493;  United  States  v.  Rio  Grande  Dam  & 
Irrig.  Co.  174  U.  S.  690,  43  L.  ed.  1136,  19 
Sup.  Ct.  Rep.  770;  Gutierres  v.  Albuquerque 
Land  &  Irrig.  Co.  188  U.  S.  545,  47  L.  ed. 
588,  23  Sup.  Ct.  Rep.  338;  Ohio  Oil  Co.  v. 
Indiana,  177  U.  S.  190,  44  L.  ed.  729.  20 
Sup.  Ct.  Rep.  576,  20  Mor.  Min.  Rep.  400; 
Lindsley  v.  Natural  Carbonic  Gas  Co.  220 
U.  S.  61,  66  L.  ed.  369,  31  Sup.  Ct.  Rep. 
337,  Ann.  Cas.  1912C,  160;  Hudson  County 
Water  Co.  v.  McCarter,  209  U.  S.  349,  52 
L.  ed.  828,  28  Sup.  Ct.  Rep.  529,  14  Ann. 
Cas.  560;  Hough  v.  Porter,  51  Or.  318,  95 
Pac.  732,  98  Pac.  1083,  102  Pac.  728; 
Williams  v.  Altnow,  51  Or.  275,  95  Pac.  200, 
97  Pac.  539;  Hedges  v.  Riddle,  63  Or.  257, 
127  Pac.  548;  Pacific  Livestock  Co.  v.  Davis, 
60  Or.  258,  119  Pac.  147;  Re  Silvies  River, 
199  Fed.  503 ;  Ex  parte  Nebraska,  209  U.  S. 
436,  445,  52  L.  ed.  876,  880,  28  Sup.  Ct. 
Rep.  581;  Indiana  use  of  Delaware  County 
V.  Alleghany  Oil  Co.  85  Fed.  870;  Re 
Willow  Creek,  74  Or.  613,  144  Pac.  505,  146 
Pac.  475;  Ferguson  v.  Ross,  3  L.R,A.  322, 
38  Fed.  161. 

The  defendants  other  than  the  members 
of  the  State  Water  Board,  who  were  par- 
ties to  certain  suits  brought  by  appellant 
in  the  Federal  court,  should  not  be  enjoined 
from  protecting  their  rights  before  the 
State  Board  and  state  court  in  these  pro- 
ceedings, because  of  these  prior  suits  in  the 
Federal  court. 

Watson  V.  Jones,  13  Wall.  679,  715,  20 
L.  ed.  666,  671;  Buck  v.  Colbath,  3  Wall, 
334,  345,  18  L.  ed.  257,  261;  Farm  Invest. 
Co.  V.  Carpenter,  9  Wyo.  135,  50  L.RA.  747, 
87  Am.  St.  Rep.  918,  61  Pac.  258;  Re  Willow 
Creek,  74  Or.  690,  144  Pac.  505,  146  Pac. 
475;  Re  Silvies  River,  199  Fed.  501; 


442,  443 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbbm, 


ties  Ti  Baker  County,  59  Or.  261,  117  P&c. 
417;  Claypool  v.  CNeiU,  66  Or.  613,  133 
Pac.  349;  Cooper  ▼.  Cedar  Rapids  Water 
Power  Co.  42  Iowa,  398;  Hanson  v.  Willard, 
12  Me.  142,  28  Am.  Dec.  162;  Spensely  ▼. 
Janesvllle  Mfg.  Co.  62  Wis.  649,  22  N.  W. 
574;  Warren  v.  Westbrook  Mfg.  Co.  BS  Me. 
58,  35  L.R.A.  388,  51  Am.  St.  Rep.  372,  33 
Atl.  605;  Roberts  v.  Claremont  R.  &  Light- 
ing Co.  74  N.  H.  220,  124  Am.  St.  Rep.  962, 
66  Atl.  485;  Caviness  v.  La  Grande  Irrig. 
Co.  60  Or.  421,  119  Pac.  731;  Jones  v. 
Conn,  39  Or.  37,  54  L.R.A.  630,  87  Am.  St. 
Rep.  634,  64  Pac.  855,  65  Pac.  1068;  Pacific 
Livestock  Co.  v.  Davis,  60  Or.  258,  119  Pac. 
147;  Wiel,  Waters  Rights  in  the  Western 
States,  3d  ed.  *p.  678,  §  624;  Rickey  Land 
&  Cattle  Co.  V.  Miller  &  Lux,  218  U.  S.  258, 
54  L.  ed.  1032,  31  Sup.  Ct.  Rep.  11;  Watson 
V.  Jones,  13  Wall.  679,  20  L.  ed.  666;  Hough 
V.  Porter,  61  Or.  318,  95  Pac.  732,  98  Pac. 
1083,  102  Pac.  728;  Umatilla  Irrig.  Co.  v. 
Umatilla  Improv.  Co.  22  Or.  366,  30  Pac. 
30;  Nevada  Ditch  Co.  v.  Bennett,  30  Or.  59, 
CO  Am.  St.  Rep.  777,  45  Pac.  472;  Whited  v. 
Cavin,  56  Or.  98,  105  Pac.  396;  Davis  v. 
Chamberlain,  61  Or.  305,  98  Pac.  154; 
Watts  V.  Spencer,  61  Or.  262,  94  Pac.  39; 
Little  Walla  Walla  Irrig.  Co.  v.  Finis  Irrig. 
Co.  62  Or.  348,  124  Pac.  666,  126  Pac.  270; 
Hindman  v.  Rizor,  21  Or.  112,  27  Pac.  13; 
Pacific  live-Stock  Co.  v.  Hanley,  98  Fed. 
327. 

The  allegations  of  the  bill  of  complaint  as 
to  certain  threatened  acts  and  proposed 
future  orders  and  regulations  of  the  board, 
which,  it  is  alleged,  will  impair  appellant's 
vested  rights,  do  not  bring  this  case  within 
the  class  of  cases  arising  under  the  provi- 
sions of  the  14th  Amendment,  and  raise  no 
Federal  question. 

Monongahela  Bridge  Co.  v.  United  States, 
216  U.  S.  177,  195,  64  L.  ed.  435,  443,  30 
Sup.  Ct.  Rep.  356;  United  States  ex  rel. 
Atty.  Gen.  r.  Delaware  &  H.  Co.  213  U.  S. 
366,  63  L.  ed.  836,  29  Sup.  Ct.  Rep.  627; 
Murray  v.  Wilson  Distilling  Co.  213  U.  S. 
151,  171,  63  L.  ed.  742,  751.  29  Sup.  a. 
Rep.  458;  Re  Willow  Creek,  74  Or.  616,  144 
Pac.  606,  146  Pac.  476. 

Mr.  Justice  Van  Deranter  delivered  the 
opinion  of  the  court: 

This  is  a  bill  in  equity  to  enjoin  a  pro- 
ceeding before  the  State  Water  Board  of 
Oregon,  looking  to  the  ascertainment  and 
adjudication  of  the  relative  rights  of  the 
various  claimants  to  the  waters  of  Silvies 
river,  in  that  state,  the  grounds  upon  which 
such  relief  is  sought  being  (a)  that  it  is 
essential  to  protect  a  jurisdiction  previously 
acquired  by  the  district  court,  and  (b)  that 
the  local  statute,  3  Lord's  Oregon  Laws, 
title  XLni.9  chap,  t,  Laws  1913,  chaps. 
1094 


j  82,  86,  and  97,  authorizing  and  controlling 
I  the  proceeding,  is  repugnant  to  the  due 
process  of  law  clause  of  the  14th  Amend- 
ment. An  interlocutory  injunction  was  de- 
nied by  the  district  court,  three  judges 
sitting  (217  Fed.  95),  and  motions  to  dis- 
miss the  bill,  as  disclosing  no  right  to  re- 
lief, were  afterwards  sustained. 

The  plaintiff,  a  California  corporation, 
owns  large  tracts  of  land  along  the  river, 
and  claims  a  vested  right  to  use  upon  these 
lands  a  portion  of  ttie  waters  of  the  stream 
for  irrigation  and  other  beneficial  purposes. 
The  defendants  are  the  members  of  the 
State  Water  Board,  and  a  few  out  of  many 
persons  and  corporations  claiming  similar 
rights  in  the  waters  of  the  river.  The  stat- 
ute under  which  the  proceeding  assailed  is 
being  conducted  was  enacted  in  1909  and 
amended  in  1913,  and  most  of  the  rights  af- 
fected by  the  proceeding  are  claimed  to  have 
arisen  prior  to  the  [443]  statute, — the 
plaintiff's  as  much  as  thirty  years  before. 
All  claimants  to  the  waters  of  the  river,  in- 
cluding the  plaintiff,  were  brought  into  the 
proceeding  by  due  notice  and  in  conformity 
with  the  stiitute. 

A  general  outline  of  the  statute,  as  it  has 
been  construed  by  the  supreme  court  of  the 
state,  1  will  serve  to  simplify  the  questions 
to  be  considered.  It  recognizes  that  in  Ore- 
gon rights  to  use  the  waters  of  streams  for 
irrigation  and  other  beneficial  purposes  may 
be  acquired  by  appropriation,  adopts  a  com- 
prehensive scheme  for  securing  an  economi- 
ci^l,  orderly,  and  equitable  distribution  of 
the  waters  among  those .  entitled  to  their 
use,  incidentally  prescribes  a  mode  of  de- 
termining the  relatives  rights  of  the  vari- 
ous claimants  to  the  waters  of  each  stream, 
and  in  large  measure  commits  the  adminis- 
tration of  the  scheme  to  the  State  Water 
Board  and  officers  acting  under  the  super- 
vision of  its  members.  When  one  or  more 
users  of  water  from  any  stream  request  it, 
the  board,  if  finding  that  the  conditions 
justify  it,  is  required  to  set  in  motion  a 
proceeding  looking  to  an  ascertainment  an^ 
adjudication  of  all  rights  to  the  waters  of 
that  stream.  Every  material  step  in  the 
proceeding  is  to  be  attended  with  notice 
and  an  opportunity  to  be  heard,  the  ade- 
quacy of  which  is  manifest.  In  the  be- 
ginning each  claimant  is  required  to  pre- 
sent to  the  division  superintendent  a  sworn 

1  See  Wattles  v.  Baker  County,-  69  Or. 
266,  117  Pac.  417;  Pringle  Falls  Power  Co. 
V.  Patterson,  65  Or.  474,  484,  128  Pac.  820, 
J  32  Pac.  527;  Claypool  v.  O'Neill,  65  Or. 
611,  133  Pac.  349;  Pacific  Livestock  Co.  v. 
Cochran,  73  Or.  417,  144  Pac.  668;  Re  Wil- 
low Creek,  74  Or.  592,  144  Pac.  606,  146 
Pac.  476;  Re  North  Powder  River,  75  Or. 
83,  144  Pac.  485,  146  Pac  476. 

141  V.  S. 


1915. 


PACIFIC  LIVE  STOCK  CO.  v.  LEWIS. 


443--446 


statement  of  his  claim,  Bhowing  its  nature, 
inception,  and  extent,  and  all  the  particu- 
lars upon  which  it  ia  baaed.  These  state- 
ments are  to  be  exposed  to  public  inspec- 
tion, so  that  every  claimant  may  determine 
whether  there  is  occasion  for  him  to  oppose 
or  contest  the  claims  of  others.  The  state 
engineer,  or  a  qualified  assistant,  is  to 
measure  the  flow  of  the  stream,  the  carrying 
capacity  of  the  several  ditches  taking  water 
[444]  therefrom,  and  the  land  irrigated  or 
susceptible  of  irrigation  from  each  ditch, 
and  also  to  take  such  other  observations  as 
may  be  essential  to  a  proper  understanding  of 
the  claims  involved,  a  report  of  all  of  which 
is  to  be  made  in  writing.  Any  claimant 
desiring  to  contest  the  claim  of  another 
may  present  to  the  division  superintendent 
a  sworn  statement  showing  the  grounds  of 
contest,  and  obtain  a  hearing  before  that 
officer,  at  which  the  parties  may  present 
whatever  evidence  they  have,  and  may  se- 
cure the  attendance  of  witnesses  by  com- 
pulsory process.  After  the  evidence  in  the 
contests  is  taken,  it  and  the  sworn  state- 
ments of  the  several  claimants,  with  the 
report  of  the  engineer's  measurements  and 
observations,  are  to  be  laid  before  the  board, 
— the  statements  and  the  report  both  being 
regarded  as  evidence  appropriate  to  be  con- 
sidered. The  board  is  then  to  examine  all 
the  evidence,  make  findings  of  fact  there- 
from, enter  an  order  embodying  the  findings 
and  provisionally  determining  the  relative 
rights  of  the  several  claimants,  and  trans- 
mit the  evidence  and  a  copy  of  the  order 
to  the  circuit  court  of  the  county  wherein 
the  stream  or  some  part  of  it  lies.  Excep- 
tions to  the  board's  findings  and  order  may 
be  presented  to  the  court,  and  in  disposing 
of  them  the  court  is  to  follow  as  near  as 
may  be  the  practice  prevailing  in  suits  in 
equity.  All  parties  in  interest,  including 
the  board,  as  representing  the  state,  are  to 
be  fully  heard.  Further  evidence  may  be 
taken  by  the  court,  or  the  matter  may  be 
remanded  with  directions  that  additional 
evidence  be  taken,  and  that  the  matter  be 
again  considered  by  the  board,  in  which 
event  the  evidence  and  a  copy  of  the  further 
order  of  the  board  are  to  be  transmitted 
to  the  court  as  in  the  first  instance.  In 
short,  upon  exceptions  the  court  may  re- 
examine the  whole  matter,  and  enter  such 
decree  as  the  law  and  the  evidence  may  re- 
quire, whether  it  be  an  afl&rmance  or  a 
modification  of  the  board's  order.  And  even 
where  no  exceptions  are  presented,  a  de- 
cree giving  effect  [446]  to  the  order  is  to 
be  entered;  that  is  to  say,  the  matter  is  not 
to  be  left  as  if  the  order  in  itself  constituted 
an  effective  adjudication.  An  appeal  from 
the  court's  decree  may  be  taken  to  the  su- 
preme court  of  the  state  "as  in  other  cases 
60  L.  ed. 


in  equity,"  except  that  the  time  therefor 
is  substantially  shortened.  When  the  rights 
involved  are  adjudicated  the  decree  is  to 
be  "conclusive  as  to  all  prior  rights  and 
the  rights  of  all  existing  clainmnts,"  and 
the  right  of  each  claimant  as  so  settled  is 
to  be  appropriately  entered  and  shown  upon 
the  records  of  the  board  and  upon  those  of 
the  proper  county.  Each  claimant  also  is 
to  receive  from  the  board  a  certificate  set- 
ting forth  the  priority,  extent,  and  purpose 
of  his  right,  and,  if  it  be  for  irrigation  pur- 
poses, a  description  of  the  land  to  which  it 
is  appurtenant.  That  the  statute  is  not 
intended  to  take  away  or  impair  any  vested 
right  to  any  water  or  to  its  use  is  express- 
ly declared  in  its  1st  and  70th  sections, 
3  Lord's  Oregon  Laws,  §§  6594,  6596. 

At  the  time  the  statute  was  adopted,  and 
continuously  until  this  suit  was  begim, 
there  were  pending  undetermined  in  the 
district  court  >  two  suits  in  equity  brought 
by  the  present  plaintiff,  one  against  two 
Oregon  corporations  and  the  other  against 
another  corporation  of  that  state,  in  each 
of  which  suits  the  relative  rights  of  the 
parties  thereto  in  the  waters  of  Silvies 
river  were  in  controversy.  These  rights  are 
reasserted  and  again  brought  in  contro- 
versy in  the  proceeding  before  the  board. 

When  that  proceeding  was  first  set  in 
motion,  the  Pacific  Live  Stock  Company, 
the  plaintiff  In  this  suit,  presented  to  the 
board  a  petition  and  bond  for  the  removal 
of  the  proceeding,  or  a  part  of  it,  alleged  to 
involve  a  separable  controversy,  to  the  dis- 
trict court  of  the  United  States,  [446]  upon 
the  ground  that  it  was  a  suit  between  citi- 
zens of  different  states.  But  the  attempted 
removal  was  not  sustained,  for  the  district 
court  remanded  the  proceeding,  and  in  that 
connection  held  that,  while  it  was  pending 
before  the  board,  it  was  essentially  prelimi- 
nary and  administrative,  and  not  a  suit  at 
law  or  in  equity  within  the  meaning  of  the 
removal  statute.    199  Fed.  495. 

Thereafter  the  plaintiff  presented  to  the 
division  superintendent  a  sworn  statement 
of  its  claim,  accompanied  by  the  fee  pre- 
scribed,— at  the  same  time  protesting  that 
the  fee  was  extortionate,  that  the  matter 
should  be  adjudicated  In  the  Federal  court, 
and  that  the  local  statute  was  repugnant 
to  the  14th  Amendment.  More  than  two 
hundred  other  claimants  also  appeared  and 
submitted  statements  of  their  claims,  all 
being  described  as  higher  up  the  stream 
than  that  of  the  plaintiff.  When  the  state- 
ments were  opened  to  public  Inspection 
many  contests  were  initiated.     Several  of 

>The  suits  were  begun  in  the  circuit 
court,  and,  when  it  was  abolished,  were 
transferred  to  the  district  court. 

1095 


446-448 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebh, 


these  were  against  the  plaintiff's  claim;  a 
large  number  were  by  the  plaintiff  against 
other  claims,  and  there  were  others  in 
which,  it  is  said,  the  plaintiff  was  not  di- 
rectly concerned.  It  was  at  this  stage  of 
the  proceeding,  and  before  any  evidence  was 
taken  in  any  of  the  contests,  that  this  suit 
was  brought. 

Upon  the  assumption  (1)  that  the  re- 
moval proceedings  were  effective,  (2)  that 
the  proceeding  before  the  board  is  substan- 
tially identical  with  the  pending  suits,  and 
(3)  that  that  proceeding  is  essentially  ju- 
dicial in  its  nature,  the  plaintiff  insists 
that  the  continued  prosecution  of  the  pro- 
ceeding before  the  board  constitutes  an  in- 
admissible interference  with  the  district 
court's  jurisdiction,  and  that  this  jurisdic- 
tion should  be  maintained  and  protected  by 
an  appropriate  injunction.*  The  insist- 
ence must  [447]  be  overruled,  because  the 
assumption  upon  which  it  rests  cannot  be 
indulged. 

Nothing  was  accomplished  by  the  removal 
proceedings.  The  district  court  did  not  take 
jurisdiction  under  them,  but,  on  the  con- 
trary, by  its  remanding  order,  adjudged 
that  they  were  unauthorized.  That  order  is 
not  subject  to  review,  either  directly  or  in- 
directly, but  is  final  and  conclusive.  Ju- 
dicial Code,  §  28  [36  Stat,  at  L.  1094,  chap. 
231,  Comp.  Stat.  1913,  §  1010];  Missouri 
P.  R.  Co.  V.  Fitzgerald,  160  U.  S.  556.  680- 
583,  40  L.  ed.  536,  542,  543,  16  Sup.  Ct. 
Rep.  389;  McLaughlin  Bros.  v.  Hallowell, 
228  U.  S.  278,  286,  57  L.  ed.  835,  839,  33 
Sup.  Ct.  Rep.  465.  In  so  holding,  it  is  not 
intimated  that  the  result  would  be  different 
if  the  order  were  now  open  to  review.  See 
Upshur  County  v.  Rich,  135  U.  S.  467,  474, 
et  seq.,  34  L.  ed.  196,  199,  10  Sup.  Ct.  Rep. 
651,  and  cases  cited. 

The  rule  that  where  the  same  matter  is 
brought  before  courts  of  concurrent  juris- 
diction, the  one  first  obtaining  jurisdiction 
will  retain  it  until  the  controversy  is  -de- 
termined, to  the  entire  exclusion  of  the 
other,  and  will  maintain  and  protect  its 
jurisdiction  by  an  appropriate  injunction, 
is  confined  in  its  operation  to  instances 
where  both  suits  are  substantially  the  same; 
that  is  to  say,  where  there  is  substantial 
identity  in  the  interests  represented,  in  the 
rights  asserted,  and  in  the  purposes  sought. 
Buck  V.  Colbath,  3  Wall.  334,  345,  18  L.  ed. 
257,  261;   Watson  v.  Jones,  13  Wall.  679, 

•  See  Rev.  Stat.  §  720;  Taylor  v.  Taintor, 
16  Wall.  366,  370,  21  L.  ed.  287,  290; 
French  v.  Hay  (French  v.  Stewart)  22  Wall. 
250,  253,  22  L.  ed.  857,  858;  Rickey  Land 
k  Cattle  Co.  v.  Miller  &  Lux,  218  U.  S.  258, 
262,  54  L.  ed.  1032,  1038,  31  Sup.  Ct.  Rep. 
11;  Chesapeake  &  O.  R.  Co.  v.  Cockrell,  232 
U.  S.  146,  154,  58  L.  ed.  544,  547,  34  Sup. 
Ct.  Rep.  278. 
1096 


715,  20  L.  ed.  666,  671;  Rickey  Land  k 
Cattle  Co.  V.  Miller  &  Lux,  218  U.  8.  258, 
26^,  54  L.  ed.  1032,  1038,  31  Sup.  Ct.  Rep. 
11.  This  is  not  such  an  instance.  The  pro- 
ceeding sought  to  be  enjoined,  although  in 
some  respects  resembling  the  prior  sUits,  is 
essentially  different  from  them.  They  are 
merely  private  suits  brought  to  restrain  al- 
leged encroachments  upon  the  plaintiff's 
water  right,  and,  while  requiring  an  asci*r- 
tainment  of  the  rights  of  the  parties  in  the 
waters  of  the  river,  as  between  themselves, 
it  is  certain  that  they  do  not  require  any 
other  or  further  determination  respecting 
those  waters.  Unlike  them,  the  proceeding 
in  question  is  a  quasi  public  proceeding, 
set  in  motion  by  a  public  agency  of  the 
state.  All  claimants  are  required  to  appear 
and  prove  their  claims;  no  one  can  refuse 
without  [448]  forfeiting  his  claim,  and  all 
have  the  same  relation  to  the  proceeding. 
It  is  intended  to  be  universal  and  to  result 
in  a  complete  ascertainment  of  all  existing 
rights,  to  the  end,  first,  that  the  waters  may 
be  distributed,  under  public  supervision, 
among  the  lawful  claimants  according  to 
their  respective  rights  without  needless 
waste  or  controversy;  second,  that  the 
rights  of  all  may  be  evidenced  by  appro- 
priate certificates  and  public  records,  al- 
ways readily  accessible,  and  may  not  be 
dependent  upon  the  testimony  of  witnesses, 
with  its  recognized  infirmities  and  uncer- 
tainties; and,  third,  that  the  amount  of  sur- 
plus or  unclaimed  water,  if  any,  may  be 
ascertained  and  rendered  available  to  in- 
tending appropriators. 

Referring  to  a  situation  resembling  that 
to  which  this  proceeding  is  addressed,  the 
supreme  court  of  Maine  said  in  W^arren 
V.  Westbrook  Mfg.  Co.  88  Me.  58,  66,  35 
L.R.A.  388,  51  Am.  St.  Rep.  372,  33  Atl. 
665 :  "To  make  the  water  power  of  econom- 
ic value,  the  rights  to  its  use,  and  the 
division  of  its  use,  according  to  those  rights, 
should  be  determined  in  advance.  This 
prior  determination  is  evidently  essential 
to  the  peaceful  and  profitable  use  by  the 
different  parties  having  rights  in  a  com- 
mon power.  To  leave  them  in  their  uncer- 
tainty— to  leave  one  to  encroach  upon  the 
other — to  leave  each  to  use  as  much  as  he 
can,  and  leave  the  other  to  sue  at  law  after 
the  injury — is  to  leave  the  whole  subject-mat- 
ter to  possible  waste  and  destruction."  In 
considering  the  purpose  of  the  state  in  au- 
thorizing the  proceeding,  the  supreme  court 
of  Oregon  said  in  Re  Willow  Creek,  74  Or. 
592,  613,  617,  144  Pac.  505:  *'To  accelerate 
the  development  of  the  state,  to  promote 
peace  and  good  order,  to  minimize  the  dan- 
ger of  vexatious  controversies  wherein  the 
shovel  was  often  used  as  an  instrument  of 
warfare,  and  to  provide  a  convenient  way 
for  the  adjustment  and   recording  of   the 

241  V.  S. 


1915. 


PACIFIC  LIVE  STOCK  CO.  v.  LEWIS. 


448-461 


rigbts  of  the  yarious  claimants  to  the  use 
of  the  water  of  a  stream  or  other  source  of 
supply  at  a  reasonable  expense,  the  state 
enacted  the  law  of  1909,  thereby  [440]  to  a 
limited  extent  calling  into  requisition  its 
police  power.  .  .  .  Water  rights,  like  all 
other  rights,  are  subject  to  such  reason- 
able regulations  as  are  essential  to  the  gen- 
eral welfare,  peace,  and  good  order  of  the 
citisens  of  the  state,  to  the  end  that  the 
use  of  water  by  one,  however  absolute  and 
unqualified  his  right  thereto,  shall  not  be 
injurious  to  the  equal  enjoyment  of  others 
entitled  to  the  equal  priyilege  of  using  water 
from  the  same  source,  nor  injurious  to  the 
rights  of  the  public."  The  district  court, 
when  making  the  remanding  order,.. jMud : 
"The  water  is  the  rea  or  subject-matter  of 
the  controversy.  It  is  to  be  divided  among 
the  several  claimants  according  to  their 
respective  rights.  Each  claimant  is  there- 
fore directly  and  vitally  interested,  not  only 
in  establishing  the  validity  and  extent  of 
his  own  claim,  but  in  having  determined 
all  of  the  other  claims."  [199  Fed.  502.] 
And  that  court  further  said  that  what  was 
intended  was  to  secure  in  an  economical 
and  practical  way  a  determination  of  the 
rights  of  the  various  claimants  to  the  use 
of  the  waters  of  the  stream,  "and  thus 
[to]  avoid  the  uncertainty  as  to  water  titles 
and  the  long  and  vexatious  controversies 
concerning  the  same  which  have  heretofore 
greatly  retarded  the  material  development 
of  the  state."  In  such  a  proceeding  the 
rights  of  the  several  claimants  are  so  close- 
ly related  that  the  presence  of  all  is  essen- 
tial to  the  accomplishment  of  its  purposes, 
and  it  hardly  needs  statement  that  these 
cannot  be  attained  by  mere  private  suits  in 
which  only  a  few  of  the  claimants  are  pres- 
ent, for  only  their  rights  as  between  them- 
selves could  be  determined.  As  against 
other  claimants  and  the  public  the  deter- 
mination would  amoimt  to  nothing.  And 
so,  upon  applying  the  test  before  indicated, 
it  is  apparent  that  the  assumed  substantial 
identity  between  the  proceeding  and  the 
pending  suits  does  not  exist. 

The  supreme  court  of  the  state  holds  that 
while  the  proceeding  is  pending  before  the 
board  it  is  merely  preliminary  [450]  and 
administrative,  not  judicial,  and  as  this  hold- 
ing is  a  necessary  result  of  that  court's 
construction  of  the  statute,  we  accept  it  as 
correct.  The  question  was  first  suggested 
in  Pacific  Livestock  Co.  v.  Cochran,  73  Qt, 
417,  144  Pac.  668,  and  the  court  then  said, 
p.  429:  "It  is  not  necessary  here  to  de- 
cide whether  the  proceeding  by  the  board 
to  deiermine  water  rights  is  judicial  or 
administrative.  To  a  large  extent  it  is 
administrative,  but  like  many  proceedings 
of  that  character,  the  board  must  also  act 
60  li.  ed. 


in  a  quasi  judicial  capacity.  A  determina- 
tion of  the  water  rights  to  a  stream  finally 
ends  as  a  report  to  the  circuit  court,  and 
a  decree  of  final  determination  by  that 
court."  Afterwards  the  question  was  both 
raised  and  determined  in  Re  Willow  Creek, 
74  Or.  692,  144  Pac.  605.  llie  court  there 
reviewed  the  several  provisions  bearing  upon 
the  duties  and  powers  of  the  board,  and 
said,  pp.  610,  612,  614:  "Their  duties  are 
executive  or  administrative  in  their  nature. 
In  proceedings  under  the  statute  the  board 
is  not  authorized  to  make  determinations 
which  are  final  in  character.  Their  findings 
and  orders  are  prima  facie  final  and  binding 
until  changed  in  some  proper  proceeding. 
The  .findings  of  the  board  are  advisory 
rather  than  authoritative.  It  is  only  when 
the  courts  of  the  state  have  obtained  juris- 
diction of  the  subject-matter  and  of  the 
persons  interested,  and  rendered  a  decree  in 
the  matter,  determining  such  rights,  that, 
strictly  speaking,  an  adjudication  or  final 
determination  is  made.  It  might  be  said 
that  the  duties  of  the  water  board  are 
quasi  judicial  in  their  character.  Such 
duties  may  be  devolved  by  law  on  boards 
whose  principal  duties  are  administrative. 
.  •  .  The  duties  of  the  board  of  control 
are  similar  to  those  of  a  referee  appointed 
by  the  court.  ...  By  proceeding  in  ac- 
cordance with  the  statute,  when  the  mat- 
ter is  presented  to  the  court  for  judicial 
action,  it  is  in  an  intelligible  form.  The 
water  board  and  state  may  then  be  repre- 
sented by  counsel." 

[451]  As  an  alternative  to  its  first  con- 
tention, which  we  hold  untenable,  the  plain- 
tiff insists  that  the  statute  is  repugnant  to 
the  due  process  of  law  clause  of  the  14th 
Amendment,  first,  because  it  requires  a 
claimant,  at  his  own  expense,  to  assert  and 
prove  his  claim  before  the  board,  and  to 
pay  an  extortionate  fee  for  having  it  con- 
sidered,— all  under  penalty  of  forfeiting  his 
claim  if  he  refuses, — ^notwithstanding  the 
board  acts  only  administratively  and  its 
findings  and  order  are  not  conclusive;  sec- 
ond, because  it  permits  the  board  to  ac- 
cept and  act  upon  the  sworn  statements  of 
claimants  taken  ear  parte  and  upon  the  data 
set  forth  in  the  unsworn  report  of  the  en- 
gineer, without,  as  is  asserted,  affording 
any  opportunity  for  showing  their  true 
value,  or  the  want  of  it,  by  cross-examina- 
tion or  otherwise;  and,  third,  because  it 
requires  that  the  board's  findings  and  or- 
der, although  only  administrative  in  char- 
acter, be  followed  and  given  effect  in  the 
distribution  of  the  water  pending  the  action 
of  the  circuit  court  upon  them. 

A  serious  fault  in  this  contention  is  that 
it  does  not  recognize  the  true  relation  of 
the  proceeding  before  the  board  to  that  be- 


461-464 


SUPREME  COURT  OF  THE  UNITED  STATES. 


9oT.  TkiM, 


fore  the  court.  They  are  not  independent 
or  unrelated,  hut  parts  of  a  tingle  statu- 
tory proceeding,  the  earlier  stages  of  which 
are  before  the  board  and  the  later  stages 
before  the  court.  In  notifying  claimants, 
taking  statements  of  claim,  receiving  evi- 
dence, and  making  an  advisory  report,  the 
board  merely  paves  the  way  for  an  adjudi- 
cation by  the  court  of  all  the  rights  in- 
volved. As  the  supreme  court  of  the  state 
has  said,  the  board's  duties  are  much  like 
those  of  a  referee.  (And  see  Washington 
ex  rel.  Oregon  R.  &  Nav.  Co.  v.  Fairchild, 
224  U.  S.  610,  626,  627,  66  L.  ed.  863,  868, 
869,  32  Sup.  Ct.  Rep.  636.)  All  the  evi- 
dence laid  before  it  goes  before  the  court, 
where  it  is  to  be  accorded  its  proper  weight 
and  value.  That  the  state,  consistently 
with  due  process  of  law,  may  thus  commit 
the  preliminary  proceedings  to  the  board 
and  the  final,  hearing  and  adjudication  to 
the  court,  is  not  debatable.  [452]  And  so, 
the  fact  that  the  board  acts  administratively 
and  that  its  report  is  not  conclusive  does 
not  prevent  a  claimant  from  receiving  the 
full  benefit  of  submitting  his  claim  and  sup- 
porting proof  to  the  board.  That  he  is  to 
do  this  at  his  own  expense  affords  no  ground 
for  objection;  on  the  contrary,  it  is  in  ac- 
cord with  the  practice  in  all  administra- 
tive and  judicial  proceedings.  The  fee 
alleged  to  be  extortionate  is  a  charge  gradu- 
ated according  to  the  amount  of  land  irri- 
gated under  the  claim  submitted,  and  is  16 
cents  per  acre  for  the  first  100  acres,  6 
cents  per  acre  for  the  next  900  acres,  and 
1  cent  per  acre  for  any  excess  over  1,000 
acres.  The  purpose  with  which  it  is  exacted 
is  explained  in  the  following  excerpt  from 
the  opinion  of  the  supreme  court  of  the 
state  in  Pacific  Livestock  Co.  v.  Cochran, 
73  Or.  417,  429,  430,  144  Pac.  668:  "The 
board  is  required  to  take  testimony  which 
consumes  the  time  of  a  stenographer  paid 
by  the  state ;  to  make,  through  the  state 
engineer,  an  examination  of  the  stream  and 
the  works  diverting  water  therefrom,  in- 
cluding the  measurement  of  the  discharge 
of  the  stream  and  of  the  capacity  of  the 
various  ditches  and  canals;  to  examine  and 
measure  the  irrigated  lands,  and  to  gather 
such  other  data  as  may  be  necessary;  to 
reduce  the  same  to  writing  and  make  it  a 
matter  of  record  in  the  office  of  the  state 
engineer;  to  make  maps  and  plats  of  the 
various  ditches  and  of  the  stream, — all  at 
the  expense  of  the  state.  That  these  serv- 
ices are  beneficial  to  the  claimant  and  neces- 
sary to  the  preservation  of  his  rights  in 
the  stream  and  the  protection  and  '  assur- 
ance of  his  title  goes  without  saying. 
.  .  .  It  is  reasonable  to  assume  that  the 
expense  to  the  state  of  the  investigation, 
mapping,  taking  testimony,  and  other  acts 
1098 


involved  in  the  determination  of  the  claim- 
ant's rights,  will  equal  and  in  many  cases 
exceed  the  amount  of  the  fee  charged;  and 
I  that  the  method  indicated  by  the  act  by 
which  the  amount  is  determined  is  [453] 
eminently  fair."  In  our  opinion,  the  charge 
is  not  extortionate  and  its  exaction  is  not 
otherwise  inconsistent  with  due  process  of 
law. 

Upon  examining  the  statute  and  tha  deci- 
sions of  the  supreme  court  of  the  state 
construing  and  applying  It,  we  are  per- 
suaded that  it  is  not  intended  that  the 
board  shall  accept  and  act  upon  anjrthing 
as  evidence  that  Is  devoid  of  evidential 
value,  or  in  respect  of  which  the  claimants 
concerned  are  not  given  a  fair  opportunity 
to  show  its  true  value,  or  the  want  of  it, 
in  an  appropriate  way.  On  the  contrary, 
the  statute  discloses  a  fixed  purpose  to  se- 
cure timely  notice  to  all  claimants  of  every 
material  step  in  the  proceeding,  and  full 
opportunity  to  be  heard  in  respect  of  all 
that  bears  upon  the  validity,  extent,  and 
priority  of  their  claims.  And  while  it  if 
true,  according  to  the  concessions  at  the 
bar,  that  the  sworn  statements  of  claim  are 
taken  ex  parte  in  the  first  instance,  it  also 
is  true  that  they  are  then  opened  to  public 
inspection,  that  opportunity  is  given  for 
contesting  them,  and  that,  upon  the  hesr- 
ing  of  the  contests,  full  opportunity  is  had 
for  the  examination  of  witnesses,  including 
those  making  the  statements,  and  for  the 
production  of  any  evidence  appropriate  to 
be  considered.  Thus  the  fact  tliat  tbe 
original  statements  are  taken  e»  parte  be- 
comes of  no  moment.  And  while  it  is  true 
that  the  state  engineer's  report  is  accepted 
as  evidence,  although  not  sworn  to  by  him, 
it  also  is  true  that  the  measurements  and 
examinations  shown  therein  are  made  and 
reported  in  the  discharge  of  hia  ofiicial 
duties  and  under  the  sanction  of  his  oath 
of  office,  and  that  timely  notice  of  the  date 
when  they  are  to  begin  is  given  to  all  claim- 
ants. The  report  becomes  a  public  docu- 
ment accessible  to  all,  and  is  accepted  u 
prima  facie  evidence,  but  not  as  conclusive. 
Re  Willow  Creek,  74  Or.  692,  628,  144  Pac. 
505.  Of  the  occasion  for  such  a  report,  the 
supreme  court  of  the  state  says  in  that  case, 
p.  613 :  "In  a  proceeding  [454]  before  tbe 
board,  provision  is  made  for  an  Impartial 
examination  and  measurement  of  the  water 
in  a  stream,  of  the  ditches  and  canals,  and 
of  the  land  susceptible  of  irrigation,  and  for 
the  gathering  of  other  essential  data  by  the 
state  engineer,  including  the  preparation  of 
maps,  all  to  be  made  a  matter  of  record  in 
the  office  of  the  state  engineer,  as  a  founda- 
tion for  such  hearing  and  to  facilitate  a 
proper  understanding  of  the  rights  of  the 
parties  interested.    Under  the  old  procedure 

141  U.  8. 


1015.  UONTBUBANO  Y  BAUOS  t.~LA.  COUPAfTlA  GENERAL  DB  TABACOB.  464,  45B 

■uch  infomMtion  wu  often  omitted.    When  |  386,  54  L.  td.  1074,  1080,  SI  Sup.  Ct  Kep. 
meuurementa   w«r«   made    by   the   Vftrioua  07. 
p*rti«s  to  K  cnit  the;  wer«  nuirlj  k1w*7I  Decree  Kfflrmed. 
mftde  tj  different  methods  ftnd  were  con- 
flicting.   Tha  other  evidence  in  regard  there-  ■" 

to,  beins  mere  eatimateB,  rendered  •  deter-  _         _  __ 

ml..tlo5  ol,«..l,  jmU  10,  Ih.  ™rt  ALi^'MraO  MOOTELIBiSO  Y  RAMOS 

.Kd  of  ,n..llo..bl.  .™r.cj.  .nd  ..te.  ..ha  ^J  piS"  ""            '  '           '     "    ' 

made."     Coniidering  the  nature  of  the  re-  ''  , 

s.r  .';,d„t'r,rpur'.jT.::  ^  compa,^  qe^^ld-  tabacos 

as  evidence  Is  not  violative  of  due  process,  ^■'^   AnAo- 

McGker  V.  Lehigh  Valley  R.  Co.  236  U.  8.  (See  S.  C.   Reporter's  ed.  455-*a].) 

412,  430,  50  L.  ed.  844,  667,  P.U.R.1915D, 

1072,  35  Sup.  Ct.  Rep.  328.  Appeal  —  mode  of  r«Tl«w. 

The  provision  that  the  water  shall  be  die-  1.  Appeal  is  ths  proper  method  of  re- 
tributed in  contormitjr  with  the  board's  or-  viewing,  in  the  Federal  Supreme  Court,  un- 
der pending  the  adjudication  by  the  court  ^^r  the  act  of  July  1,  1902  (32  Stat,  at  L. 
ha.  the  sanction  of  many  precedents  in  the  f?'  ■**§■  '368.  Comp.  SUt.  1B13,  §  im). 
!..«;. i.iir.-  •»  r-  «™..  _  J  «  .1.  _.  1  i  10.  »  decree  of  the  supreme  court  of  the 
legslation  of  Congress  and  of  the  «^veral  f-hiH  ;„  i,,^„d,  -^  an^ction  of  ui  equi- 
states,  notably  in  the  provision  In  the  inter-  table  nature. 

state  commerce  act  directing  that  ths  orders  [irar  other  csiea,  lee  Appeal  and  Error,  II 
of  the  Commiasion  shall  be  effective  from  a  t^  tn  Digest  Sup.  Ct  IMS.] 
dat«  shortly  after  they  are  made,  unless  APPe*'  —  r«>™  PliUlpplnc  IslnndB  an- 
tbeir  operation  be  restrained  by  injunction.  f '*"""  *»"•"'  "  '""ow'nK  decision  be- 
TUese  legislative  prwedents.  while  not  con-  "^/The  concurrent  views  of  the  two 
trolling,  are  entitled  to  much  weight,  es-  i(,„„  „„,tg  ^3,^^  .^rtaln  contracts  should 
pecially  as  they  have  been  widely  accepted  be  construed  as  creating  an  agency  rather 
as  valid.  Although  containing  no  provision  than  as  being  contracts  of  sale  will  not  be 
for  an  . injunction,  ths  statute  under  con-  disturbed  by  the  Federal  Supreme  Court  on 
sideration  permits  tlie  same  result  to  be  appeal  from  the  supreme  court  of  the  Phil- 
reached  in  another  way,  for  It  deelsres  that  'PP""^  Islands,  unless  convinced  that  audi 
the  operation  of  the  board's  ordsr  "mar  be  Tlf  '■^'^"'"y  erroneous. 

K   .         .    ,                      _.»  L      _.  .  I"""  "•*>■'  «»•**•  •«<  Appeal  and  tCrror,  VIII, 

sUyed   in   whole   or   in  part"  by  giving   »  m,  1,  In  Dlgett  Bnp.  Ct.  1008.1 
bond  in   such  amount  as  the  judge  of  the 

court  in  which  the  proceeding  is  pending  may  [No.  217.] 
preacribe,   conditioned   for   the  payment   of 

such  damages  [455}  as  may  accrue  by  rea-  Submitted  March  8,  1016.    Decided  June  S, 

son  of  ths  stay.     It  is  not,  therefore,  as  If  1^16. 

til e  requirement  were  absolute.     As  has  been  _           _         .                     .     ,.  _       „ 

seen,  the  order  Is  made  only  afUr  adequaU  H*^  APPEAL  from,  and  IN  ERROR  to. 

notice  and  full  opportunity  to  be  heard,  and  ^   ""  S^P"""*  Co"'*  <>'   t*"*  Philippine 

when  made  is,  with  reason,  deemed  prima  '"'""*•'  ^  ""«^  »  <*«'«  "''"'>'  »«"»»»  a 

facie  correct.     It  relates  to  flowing  water,  '1'^™  °' ^'  9°'"*  "^  ^•"*  Instanoe  of  tbe 

to   the   use   of   which   there   are  conflicting  Judicial  Dm t net  of  Manila^  m  favor  of  do- 

claims.    Unless  diverted  and  used,  the  water  '^"'l"''*  m  a  suit  m  which  pU.ntiff^  in  addi- 

wUI  pan  on  and  be  lost.     No  claimant  is  t'**"  f°  claiming  damages,   prayed   for  tha 

in  poasession,  and  all  assert  a  right  to  take  ~n«latlon  of  a  certain  contract  and  of  the 

from  the  eommon  source.    In  this  situation  '^^'tgi.gu  given  to  secure  it,  and  defendant 

we   think   it   is   within   the   power   of   Uie  ">1««'. '«  affirmative  relief,  and  for  an  ac- 

sUte  to  require  that,  pending  the  dual  ad-  °7"t'"K  ""d  dam^es.     Wnt  of  error  d* 

judictionrtl'e   water  shall   be  distributed  ""'"«*,    ^«re«  affirmed  on  the  appeal, 

according  to  the  board's  order,  unless  a  ^*  '"=*'  *"'  '*^^  "■  ">«  "P*"'""^ 

•aitable  bond  be  given  to  st*y  its  operation.  Mr.  Henrr  W.  Van  Dyke  submitted  the 

Such  ■  requirement  is  not  arbitrary,  doea  cause  for  appellants  and  plaintiffs  in  error: 

not  take  from  one  and  give  to  another,  and  Since  the  action  is  one  tliat  involves  not 

is  not  otherwise  offensive  to  a  right  con-  alone  claims  for  damages,  but.  on  the  one 

ception   of  due   process.     Detroit  ft  U.   R. — — ■ — — ■ — 

Co.  v.  Michigan  R.  Commission,  240  U,  S.  Noti.— On  distinction  between  apNal  and 
BS4,  ante,  802,  36  Sup.  a.  Rep.  424;  Wad-  ?*"■  "'  *7'";T*f?  "^J?  *"°*"  ^""^  *■ 
ley  Southed  R.  Co  v^  Georgia,  235  U.  8.  ^°Sn' .njiliate  i^ni^o^  of  Federal  Su- 
661,  660,  60  L.  ed.  40B.  411,  P.U.R.IB15A,  ^me  CSurt  over  supreme  court  of  Philip- 
166,  as  Sup.  Ct.  Rep.  214;  Monteiuma  Canal  pine  Islands— ««  note  to  MarUnei  v.  Inter- 
Co.  T.  SmitfaTille  Canal  Co.  218  U.  8.  871,  national  Bl^.  (>oip.  S5  L.  ed.  U.  S.  438. 
•§  Ii.  «d.  10*9 


45»-4M 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tkem, 


side,  prayers  for  the  rescinding  of  con- 
tracts and  cancelation  of  mortgages,  and,  on 
the  other,  for  an  accounting,  for  the  ap- 
pointment of  a  receiyer,  and  for  relief  in 
the  nature  ot  specific  performance,  it  is 
essentially  an  action  of  an  equitable  char- 
acter, and,  as  such,  under  the  rulings  of  the 
court  in  De  la  Rama  v.  De  la  Rama,  201 
U.  S.  303,  50  L.  ed.  765,  26  Sup.  Ct.  Rep. 
485;  Behn  t.  Campbell,  205  U.  S.  403,  51  L. 
ed.  857,  27  Sup.  Ct.  Rep.  502,  and  Osell 
T.  Insular  Collector  of  Customs,  239  U.  S. 
93,  ante,  163,  36  Sup.  Ct.  Rep.  39,  review- 
able here  on  appeaL 

Even  if  the  writ  of  error,  and  not  the  ap- 
peal, should  be  sustained  in  this  case,  the 
court  might  consider  not,  of  course,  ques- 
tions of  fact,  but  the  facts  as  found  by  the 
court  of  first  instance,  for  the  purpose  of 
determining  whether  those  facts  are  suffi- 
cient to  support  the  judgment  (Allen  v.  St. 
Louis  Nat  Bank,  120  U.  S.  20,  30  L.  ed. 
573,  7  Sup.  Ct.  Rep.  460;  Stanley  v.  Albany 
County,  121  U.  S.  535,  30  L.  ed.  1000,  7 
Sup.  Ct.  Rep.  1234;  Preston  v.  Prather,  137 
U.  S.  604,  34  L.  ed.  788,  11  Sup.  Ct.  Rep. 
162,  1  Am.  Neg.  Cas.  599);  or  at  least — 
that  is,  if  the  findings  in  the  case  should  be 
regarded  not  as  special  findings  of  fact,  and 
therefore  as  not  falling  within  the  principle 
established  in  those  and  other  like  cases — 
the  court  may  consider  them,  nevertheless, 
for  the  purpose  of  determining  whether  the 
principles  of  law  the  courts  below  applied 
to  them  were  properly  applied. 

Mr.  Clement  L.  Bonv6  submitted  the 
cause  for  appellee  and  defendant  in  error. 

Mr.  Justice  Pitney  delivered  the  opinion 
of  the  court: 

This  action  was  commenced  by  appellants 
on  the  4th  day  of  March,  1911,  in  the  court 
of  first  instance  of  the  city  of  Manila.  It 
was  in  its  nature  a  suit  in  equity.  The 
whole  controversy  turns  upon  the  construc- 
tion of  certain  instruments  in  writing,  the 
provisions  of  which  will  be  outlined  in  stat- 
ing the  case.  The  complaint  averred  that  cm 
October  25,  1905,  the  parties  entered  into  a 
written  contract  whereby  the  tobacco  com- 
pany, through  a  representative,  "delivers  to 
Don  Alejandro  Montelibano  for  the  purpose 
of  collection,  under  the  conditions  herein- 
after expressed,  the  following  credits." 
There  followed  a  detailed  statement  of  the 
credits,  mentioning  the  names  of  the  debt- 
ors and  the  amount  due  from  each,  the 
aggregate  being  P:179,177.86.  The  com- 
pany guaranteed  the  existence  and  legiti- 
macy of  the  credits,  but  not  the  solvency  of 
the  debtors.  Montelibano  obligated  himself 
to  pay  to  the  company  as  the  value  of  the 
credits  the  sum  of  P.  130,000  in  instalments 
1100 


of  P.20,000  in  the  month  of  December  in 
each  of  the  years  1906,  1907,  1908,  and  1009, 
and  the  balance  of  P.oO,000  in  December, 
1910.  It  was  agreed  that  if  he  should  pay 
the  P.130,000  at  the  times  provided  "all  the 
credits  and  documents  of  the  debtors  [457] 
which  are  now  delivere4  to  him  as  specific- 
ally stated  in  paragraph  one,  will  be  trans- 
ferred to  him,  and  consequently  Don  Ale- 
jandro Montelibano  agreed  to  pay  in  cash 
to  the  Compafiia  General  de  Tabacos  de 
Filipinas  in  the  instalments  set  out  the  sum 
of  130,000  pesos,  in  order  to  acquire  the 
ownen^ip  of  the  rest  of  the  credits."  All 
cancelations  of  credits  were  to  be  made  by 
the  company  upon  the  proposal  of  Don  Ale- 
jandro, "the  latter,  however,  being  author- 
ized to  issue  partial  receipts  for  whatever 
sums  he  may  collect."  The  company  was 
not  to  advance  to  him  any  sum  for  use  in 
the  collection  of  the  credits,  nor  to  accept 
responsibility  for  actions  instituted  by  him 
for  their  collection,  **said  party  accepting 
whatever  responsibilities  may  arise  by  rea- 
son of  his  negotiations."  The  company  con- 
ferred upon  him  authority  to  conduct  upon 
his  own  responsibility  all  negotiations  by 
him  deemed  requisite  for  the  collection  of 
the  credits;  "and  in  the  event  of  any 
judicial  action  being  instituted,  the  com- 
pany shall  sell  to  Mr.  Montelibano  the 
credit  which  is  the  object  of  such  litiga- 
tion." The  contract  was  publicly  ratified 
by  Montelibano  and  his  wife,  who  is  the 
other  appellant,  on  the  10th  day  of  Novem- 
ber following  its  date,  and  in  the  ratifica- 
tion the  instrument,  besides  being  copied  at 
large,  was  described  as  the  document  "in 
which  the  said  company  ceded  to  the  said 
Mr.  Montelibano  all  the  credits  set  forth 
in  the  same  to  the  end  that  the  cessionary 
might  carry  into  effect  the  collection  from 
all  the  debtors  of  the  company  of  the  debts 
set  forth  in  the  inserted  document,  the  total 
amount  of  which  aggregates  the  sum  of 
179,177  pesos  and  86  centavos,  by  means  of 
the  authority  conferred  by  said  company 
upon  said  Mr.  Montelibano  to  enable  him 
to  carry  out  upon  his  own  responsibility  all 
the  negotiations  he  might  deem  necessary 
for  the  collection  of  the  credits  mentioned, 
and  that  in  the  event  [458]  of  any  judicial 
action  being  instituted  the  company  would 
cede  in  sale  to  Mr.  Montelibano  the  credit 
which  was  the  object  of  said  litigation." 
The  wife  joined  in  the  contract  and  the  rat- 
ification in  order  to  pledge  certain  real  es- 
tate owned  by  her  as  security  for  the  per- 
formance of  the  contract  by  her  husband. 

The  complaint  averred  that  appellants 
had  taken  all  steps  possible  to  carry  into 
effect  the  collection  of  the  credits,  but  had 
only  been  able  to  collect  amounts  aggregat- 
ing P.29,491.04;  that  the  renudning  credits 

141  U.  8. 


1915.  MONTELIBANO  Y  RAMOS  ▼.  LA  COMPa!$IIA  GENERAL  DE  TABACOS.  158-460 


■et  forth  in  the  firot  clause  of  the  contract 
did  not  exist  in  the  amount  therein  stated, 
and  were  not  legitimate  in  their  nature,  and 
for  this  reason,  in  spite  of  plaintiff's  efforts 
to  collect  them,  it  had  been  impossible  to 
do  so.  Plaintiffs  claimed  that  defendant 
company  was  responsible  to  the  plaintiffs 
for  damages  in  the  sum  of  P.129,734.29,  and 
prayed  thut  they  might  recover  this  amount, 
and  that  the  contract  of  October  25,  1005, 
and  the  mortgages  given  to  secure  it,  might 
be  canceled. 

The  appellee  filed  an  answer  and  a  cross 
complaint  setting  up  the  contract  of  Octo- 
ber 25,  1905,  and  the  ratification  of  No- 
vember 10,  and  also  an  agreement  after- 
wards made  between  the  parties  under  date 
December  7,  1908,  supplemental  to  and  mod- 
ifying in  certain  respects  the  previous  con- 
tract; setting  up  that  defendant  had 
complied  with  all  the  terms  and  conditions 
of  these  contracts  on  its  part  to  be  per- 
formed; that  Montelibano  had  paid  defend- 
ant only  P.20,736.95  on  account  of  the 
instalments  agreed  to  be  paid  ''under 
the  provisions  of  said  contracts  whereby  the 
said  plaintiff  had  the  option  of  purcha&ing 
and  acquiring  the  ownership  of  said  credits 
for  the  sum  of  P.l 30,000;"  that  after  the 
expiration  of  t)ie  term  of  the  option,  when 
he  was  by  the  terms  and  conditions  of  the 
contracts  obligated  to  account  for  all  sums 
of  principal  and  interest  collected  on  ac- 
count of  said  credits,  and  to  return  to  de- 
fendant all  credits  remaining  [450]  uncol- 
lected, defendant  demanded  of  said  plaintiff 
an  accounting  of  his  transaction  in  connec- 
tion with  the  credits  as  agent  of  the  defend- 
ant, and  payment  of  all  sums  of  principal 
and  interest  collected,  but  he  refused  to 
comply  with  the  demand  to  pay  over  any 
sum  collected  by  him,  to  render  accounts,  or 
in  any  manner  to  comply  with  his  obliga- 
tions under  the  contracts.  Defendant  prayed 
that  the  action  of  plaintiffs  be  dismissed; 
that  the  plaintiff  Alejandro  Montelibano  be 
required  to  render  an  accounting  of  the  sums 
collected  by  him,  of  the  credits  remaining 
uncollected,  and  of  all  his  transactions  un- 
der the  contracts,  and  that  judgment  be 
Tendered  in  favor  of  defendant  and  against 
the  plaintiff  Alejandro  for  the  sum  found 
to  be  due;  that  a  receiver  be  appointed  to 
eare  for  the  imcollected  credits  and  the 
mortgaged  property;   and   for  other   relief. 

Before  trial  plaintiffs  asked  for  a  dis- 
missal of  the  action.  The  motion  to  this 
effect  was  denied,  and  the  case  came  on  for 
hearing  upon  defendant's  prayer  for  afiirma-k 
tive  relief  and  for  an  accounting  and  dam- 
ages. The  tfial  court  treated  the  contract 
as  turning  over  the  credits  to  Montelibano 
for  collection  for  defendant's  account,  sub- 
ject to  an  option  to  purchase  the  entire 
40  li.  ed. 


amount  of  credits  for  the  sum  of  P.130,000, 
payable  in  instalments  strictly  as  prescribed 
by  the  contract;  found  that  he  had  not 
only  failed  to  pay  the  stipulated  instal- 
ments in  order  to  avail  himself  of  the 
!  option,  but  had  not  turned  over  or  ac- 
counted for  the  amount  actually  collected 
by  him;  that  he  had  collected  P.61,715.98, 
and  paid  over  only  P.20,736.95,  leaving  a 
balance  collected  by  him  and  undelivered  to 
the  defendant  of  P.40,979.03,  in  addition  to 
which  certain  claims  against  Emilio  Escay 
and  Quirino  Gamboa  had  been  prosecuted 
to  judgment  and  execution,  and  the  prop- 
erty of  the  debtors  acquired  by  Montelibano 
through  the  execution  sales,  and  that  these 
properties  were  held  by  Montelibano  in 
trust  for  the  [460]  company.  *'The  conclu- 
sions are  that  the  plaintiff  having  failed  to 
perform  the  contract  on  his  part,  the  de- 
fendant is  entitled  to  a  return  of  his  [its] 
property  in  so  far  as  it  can  be  returned,  and 
to  judgment  for  the  value  of  the  balance 
which  cannot  be  returned,  which  value  must 
be  determined  as  the  proceeds  which  the 
plaintiff  received  from  such  claims,  together 
with  legal  interest  upon  the  amount  of  cash 
received  by  the  plaintiff  upon  such  claims 
from  the  time  of  the  commencement  of  this 
action,  which  was  by  filing  the  complaint 
herein  on  the  4th  day  of  March,  1911." 

Judgment  was  therefore  entered  in  favor 
of  the  defendant  and  against  the  plaintiff 
Montelibano  for  the  sum  of  P.40,979.03,  less 
P.22,086.43  (the  amount  of  the  Escay  debt) 
if  defendant  should  seek  to  recover  the 
Escay  property  from  plaintiff,  with  interest 
from  March  4,  1911,  the  date  of  the  com- 
mencement of  the  action;  also  for  the 
possession  and  delivery  of  certain  enumer- 
ated credits  aggregating  P.103,645.70 ;  also 
for  the  Escay  property,  and  in  case  delivery 
thereof  could  not  be  had,  the  sum  of 
P.40,000,  the  value  thereof,  provided  defend- 
ant did  not  elect  to  take  the  full  judgment 
for  money  collected  as  above  stated,  and  if 
such  election  should  be  made,  then  this 
clause  in  relation  to  the  return  of  the  prop- 
erty to  be  annulled;  also  for  the  property 
known  as  the  Gamboa  property,  or,  in  case 
delivery  thereof  could  not  be  had,  the  sum 
of  P.6,178.10;  and  for  the  costs. 

The  supreme  court  of  the  Philippine 
Islands  affirmed  this  judgment,  holding 
that  the  title  to  the  credits  never  passed  to 
the  plaintiff  Alejandro  Montelibano;  that 
they  were  delivered  into  his  possession  for 
collection,  with  an  agreement  that  he  could 
become  the  owner  thereof  by  paying  P.130,- 
000  in  the  manner  specified;  that  none  of 
these  payments  haring  been  made  as  agreed, 
the  credits  remained  the  property  of  the 
defendant  coinpany,  and  a  refusal  to  deliver 

1101 


460-462 


SUPREME  COUBT  OF  THE  UNITED  STATES. 


Oct.  Term, 


them  was  properly  the  basis  of  a  demand  for 
affirmative  relief. 

[461]  The  case  comes  to  this  court  under 
§  10  of  the  act  of  July  1,  1902  (chap.  1369, 
32  SUt.  at  L.  691,  605,  Gomp.  Stat.  1913,  §§ 
3804,  1225),  on  account  of  the  amount  in 
controyersy.  The  action  being  of  an  equi- 
table nature,  the  proper  method  of  review  is 
by  appeal,  and  the  writ  of  error  will  be  dis- 
missed, be  la  Rama  v.  De  la  Rama,  201 
U.  S.  303,  309,  50  L.  ed.  765,  767,  26  Sup. 
Ct.  Rep.  485;  Gsell  v.  Insular  Collector  of 
Customs,  239  U.  S.  93,  ante,  163,  36  Sup.  Ct. 
Rep.  39;  De  la  Rama  v.  De  la  Rama,  241 
U.  S.  154,  160,  ante,  932,  934,  36  Sup.  Ct. 
Rep.  518. 

The   principal  contention  of   appellants, 
and  the  one  upon  which  all  others  turn,  is 
that  the  court  of  first  instance  and  the 
supreme  court  of  the  Islands  erred  in  hold- 
ing that,  under  the  terms  of  the  contracts 
of  October  25,  1905,  and  December  7,  1908, 
the  credits  involved  were  delivered  to  the 
appellant    Alejandro    Montelibano    not    as 
purchaser,  but  merely  as  agent  for  purposes 
of  collection,  with  an  option  to  purchase 
that  was  not  carried  out,  and  that  therefore 
the  tobacco  company  was  entitled  to  the 
proceeds  so  far  as  collected,  and  a  return 
of  the  uncollected  credits  or  their  value. 
In  support  of  this  there  is  an  elaborate 
argument  respecting  the  construction  of  the 
instruments  in  question.    It  concedes  that 
many  of  their  clauses  are  consistent  with* 
the  view  that  Montelibano  had  but  an  option 
to  purchase  the  credits,  and  that  if  this 
option  were  not  accepted  he  was  to  account 
to  the  company  for  all  that  he  collected; 
but  it  is  argued  that  other  clauses  and  the 
general  intent  of  the  agreements  are  to  the 
contrary.     It   would   be   tedious   to   recite 
the  argument  in  detail,  and  we  content  our- 
selves with  saying  that  it  has  not  convinced 
us  that  the  courts  below  clearly  erred;  and 
since  they  concurred  in  their  findings  both 
upon  questions  of  fact  and  upon  questions 
of  law,  it  is  our  duty  to  afiirm  their  judg- 
ment.   Ker  k  Co.  v.  Oouden,  223  U.  S.  268, 
279,  '66  L.  ed.  432,  435,  32  Sup.  Ct.  Rep. 
284 ;  De  Villanueva  v.  Villanueva,  239  U.  S. 
293,  299,  ante,  293,  296,  36  Sup.  Ct.  Rep.  109. 

Writ  of  error  dismissed. 

Decree  affirmed  on  the  appeaL 


tion  under  the  Federal  employers'  liability 
act  of  April  22,  1908  (^5  SUt.  at  L.  65, 
chap.  149,  Comp.  Stat.  1913,  §  8657), 
brought  by  the  head  brakeman  of  a  'inani- 
fest  train,"  whose  injury  waa  due  to  the 
"working"  of  the  train  at  both  ^da  at  the 
same  time,  that  if  the  jui^  believed  from 
the  evidence  that  the  method  adopted  by 
the  carrier  in  making  up  the  train  on  the 
occasion  in  question  was  the  usual  and  ordi- 
nary one,  then  plaintiff  assumed  all  the 
risks  incident  thereto,  and  could  not  re- 
cover because  of  any  injury  received  on  ac- 
count of  such  method,  even  though  it  was 
the  direct  and  proximate  cauae  of  ^e  in- 
jury, is  properly  refused  because  (a)  it 
failed  to  define  what  state  of  facts  should 
charge  plaintiff  with  an  assumption  of  the 
risk,  the  evidence  leaving  in  doubt  what 
method  was  adopted  in  making  up  the  train 
in  question;  (b)  it  ignored  the  question 
whether  plaintiff  had  knowledge  or  was 
chargeable  with  notice  of  the  customary 
method;  and  (c)  it  required  the  aoquittal 
of  defendant  if  the  usual  method  of  doing 
the  work  was  pursued,  irrespective  of  the 
question  of  the  negligence  of  tiie  rear-end 
switching  crew  in  carrying  it  out. 
[For  other  cases,  see  Trial,  Vll.  d,  in  Digest 
Sup.   Ct.   1908.] 

Appeal  —  reversible  error  —  modiflca* 
tion  of  instrnction. 

2.  The  master  has  no  valid  cause  foi 
complaint  because  a  requested  instruction 
on  the  assumption  of  the  risk  of  an  extraor- 
dinary danger  ffrowine  out  of  customary 
methods,  which  ignored  the  question  wheth- 
er the  injured  employee  knew  or  had  no- 
tice of  such  methods,  waa  modified  io  as  to 
exclude  the  assumption  of  risk  aa  a  de- 
fense unless  the  customary  method  waa  one 
that  a  reasonably  careful  employer  would 
have  adopted. 

[For  other  cases,  see  Appeal  and  Error.  S142, 
6143,  in  Digest  Sup.  Ct  1008.) 

[No.  278.] 

Argued  March  10,  1916.     Decided  June  B, 

1916. 


I 


[462]  CHESAPEAKE  &  OHIO  RAILWAY 
COMPANY,  Plff.  in  Err., 

V.    . 

CLAUDE  L.  PROFFITT. 

(See  S.  C.  Reporter's  ed.  462-469.) 

Triml  —  requested  iiiatmction  —  aaaomp- 
tion  of  risk. 
1.  A  requested  instruction^  in  an  ac- 
1102 


N  ERROR  to  the  United  SUtes  Circuit 

Court  of  Appeals  for  the  Fourth  Circuit 
to  review  a  judjgment  which  affirmed  a  judg- 
ment of  the  District  Court  for  the  Eastern 
District  of  Virginia  in  favor  of  plaintiff  in 
an  action  under  the  Federal  employers'  lia- 
bility act.    Affirmed. 

See  same  case  below,  134  C.  C.  A.  37, 
218  Fed.  23. 

The  facta  are  stated  in  the  opinion. 

Note. — On  the  constitutionality,  applica- 
tion, and  effect  of  the  Federal  employers'  lia- 
bility act — see  notes  to  Lamphere  v.  Or^fon 
R.  &  Nav.  Co.  47  L.R.A.(N.S.)  38,  and  Sea- 
board Air  Line  R.  Co.  y.  Horton,  LJLA 
1916C,  47. 

Generally,  as  to  servant's  assumption  of 
risk — see  notes  to  Pidoock  v.  Union  P.  R. 

141  U.  8. 


1915. 


CHESAPEAKB  Jb  O.  R.  CO.  t.  PROFFIIT. 


Messrs.  Walter  Ijeake  and  Dayld  H. 
Ijeake  argued  the  cause,  and,  with  Mr. 
Henrj  Taylor,  Jr.,  filed  a  brief  for  plain- 
tiff in  error: 

Under  the  common-law  doctrine  of  as- 
sumed risks,  as  construed  and  applied  in 
the  Federal  courts,  the  servant  assumes  the 
risks  arising  from  the  master's  method  of 
doing  the  work  where  the  dangers  or  de- 
fects are  open  and  obvious  or  known  to  the 
servant,  and  he  continues  in  the  employ- 
ment of  the  master,  even  though  such  risks 
may  have  been  originally  due  to  the  mas- 
ter's negligence. 

1  Labatt,  Mast  Jb  S.  §  274;  Butler  v. 
Frazee,  211  U.  S.  466,  467,  53  L.  ed.  285, 
29  Sup.  Ct.  Rep.  136;  Schlemmer  v.  Buffalo, 
R.  &  P.  R.  Co.  220  U.  S.  690,  596,  55  L.  ed. 
596,  600,  31  Sup.  Ct.  Rep.  661;  Choctaw,  O. 
k  G.  R.  Co.  V.  McDade,  191  U.  S.  698,  48  L. 
ed.  96,  24  Sup.  Ct.  Rep.  24,  15  Am.  Neg. 
Rep.  230;  Texas  A  P.  R.  Co.  v.  Harvey,  228 
U.  S.  319,  57  L.  ed.  852,  33  Sup.  Ct  Rep. 
518;  Gila  Valley,  G.  &  N.  R.  Co.  v.  Hall, 

232  U.  S.  94,  58  L.  ed.  521,  34  Sup.  Ct  Rep. 
229;  Seaboard  Air  Line  R.  Co.  v.  Horton, 

233  U.  S.  492,  58  L.  ed.  1062,  L.R.A.1915C, 
1,  34  Sup.  Ct  Rep.  635,  Ann.  Cas.  1915B, 
475,  8  N.  C.  C.  A.  834. 

The  doctrine  of  assumed  risks,  as  ap- 
plicable to  common  carriers,  has  not  been 
changed  by  the  employers'  liability  act  ex- 
cept in  the  one  case  where  the  violation  by 
such  common  carrier  of  any  statute  enacted 
for  the  safety  of  employees  contributed  to 
the  injury  and  death  of  an  employee. 

Gulf,  C.  k  S.  F.  R.  Co.  V.  McGinnis,  228 
U.  8.  173,  57  L.  ed.  785,  33  Sup.  Ct.  Rep. 
426,  8  N.  C.  0.  A.  806;  Seaboard  Air  Line 
R.  Co.  V.  Moore,  228  U.  S.  433,  57  L.  ed. 
907,  33  Sup.  Ct  Rep.  580;  Second  Employ- 
ers' Liability  Cases  (Mondou  v.  New  York, 
N.  H.  k  H.  R.  Co.)  228  U.  S.  1,  56  L.  ed. 
327,  38  L.RJL(N.S.)  44,  32  Sup.  Ct  Rep. 
169,  1  N.  C.  C.  A.  876;  Norfolk  k  W.  R.  Co. 
V.  Earnest,  229  U.  8.  114,  57  L.  ed.  1096, 
33  Sup.  Ct.  Rep.  654,  Ann.  Cas.  1914C,  172; 
American  R.  Oo.  y.  Birch,  284  U.  S.  547,  56 
L.  ed.  879,  82  Sup.  Ct.  Rep.  603;  Hall  v. 
Vandalia  R.  Co.  169  111.  App.  12;  NeU  y. 
Idaho  &  W.  N.  R.  Co.  22  Idaho,  102,  125 
Pac.  331;  Barker  y.  Kansas  City,  M.  k  0. 
R.  Co.  88  Kan.  767,  43  L.R.A.(N.S.)  1121, 
129  Pac.  1151;  Freeman  v.  Powell,  —  Tex. 


CiY.  App.  — ,  144  S.  W.  1038;  Southern  R. 
Co.  Y.  Jacobs,  116  Va.  189,  81  S.  E.  99;  Sea- 
board Air  Line  R.  Co.  v.  Horton,  233  U.  S. 
492,  58  L.  ed.  1062,  L.R.A.1915C,  1,  34  Sup. 
Ct  Rep.  635,  Ann.  Cas.  191 5B,  475,  8  N.  C. 
0.  A.  834;  Southern  R.  Co.  v.  Crockett,  234 
U.  S.  730,  58  L.  ed.  1564,  84  Sup.  Ct.  Rep. 
897. 

The  method  of  conducting  the  business  in 
this  case,  that  is,  of  shifting  and  coupling 
at  both  ends  of  the  train  at  the  same  time, 
without  any  notice  and  warning  to  those 
working  at  the  other  end  oi  the  train,  was 
open,  obvious,  and  known  to  the  plaintiff, 
and  he,  therefore,  assumed  the  risk  of  any 
injury  from  that  source. 

Chicago,  M.  &  St  P.  R.  Co.  y.  Voelker, 
70  L.R.A.  264,  65  C.  C.  A.  226,  129  Fed. 
522;  Johnson  v.  Southern  P.  Co.  196  U.  S. 
19,  49  L.  ed.  370,  25  Sup.  Ct  Rep.  158,  17 
Am.  N^.  Rep.  412. 

Instruction  "B,"  on  the  subject  of  the  as- 
sumption of  risks,  as  asked  for  by  the  de- 
fendant should  have  been  given,  and  the 
modification  thereof  by  the  court  was  im- 
proper, and  should  not  have  been  given, 
since  it  was  a  violation  of  the  doctrine  of 
assumed  risks. 

Butler  V.  Franzee,  211  U.  S.  466,  467,  53 
L.  ed.  285,  29  Sup.  Ct  Rep.  136. 

There  was  no  evidence  in  the  case  show- 
ing or  tending  to  show  that  the  violence 
of  the  impact  caused  by  the  cars  coupled 
from  the  rear  of  the  train  was  the  proxi- 
mate cause  of  the  injury  to  the  plaintiff. 

Patton  V.  Texas  A  P.  R.  Co^  179  U.  S. 
663,  45  L.  ed.  364,  21  Sup.  Ct.  Rep.  275. 

The  instruction  given  by  the  court  on  the 
measure  of  damages,  as  asked  for  by  the 
plaintiff,  was  erroneous  on  the  question  of 
the  allowance  of  compensation  (a)  for  any 
physical  pain  the  plaintiff  will  suffer  in  the 
future,  and  (b)  for  being  unable  to  follow 
his  calling  or  to  do  any  other -work  he 
would  have  done  had  he  not  been  injured. 

13  Cyc  139;  Smith  v.  Milwaukee  Build- 
ers' k  T.  Exch.  91  Wis.  360,  30  L.R.A.  504, 
51  Am.  St  Rep.  912,  64  N.  W.  1041;  Ford 
Y.  Des  Moines,  106  Iowa,  94,  75  N.  W.  630, 
4  Am.  Neg.  Rep.  379;  Shults  v.  Griffith, 
103  Iowa,  150,  40  L.ItA.  117,  72  N.  W.  445 ; 
Norfolk  R.  k  Light  Co.  v.  Spratley,  103 
Va.  388,  49  S.  E.  502;  Watson,  Personal 
Injuries,  §  384;  Washington  k  G.  R.  Co.  v. 


Oo.  1  L.RJ1.  131;  Foley  v.  Pettee  Mach. 
Works,  4  LJtA.  61;  Howard  v.  Delaware 
k  H.  Oanal  Co.  6  URJL  75;  Hunter  v. 
New  York,  0.  A  W.  R.  Co.  6  L.R.A.  246; 
Georgia  P.  R.  Co.  v.  Dooly,  12  L.R.A.  342; 
Kehler  v.  Schwenk,  13  L.R.A.  374,  and 
Southern  P.  Co.  v.  Seley,  38  L.  ed.  U.  S. 
891. 

On  volenti  n<m  fit  infuria  as  defense  to 
action  by  injured  servants — see  note  to 
40  It,  ed. 


CMaley  v.  South  Boston  Gaslight  Co.  47 
L.RJL  162. 

As  to  whether  sen^ant  may  assume  the 
risk  of  dangers  created  by  the  master's 
negligence — see  note  to  Scheurer  v.  Banner 
Rubber  Co.   28  L.R.A.(N.S.)    1215. 

As  to  servant's  assumption  of  ris)c  of 
dangers  imperfectly  appreciated — see  note 
to  Tuckett  Y.  American  Steam  k  Hand 
Laundry,  4  L.R.A.(N.S.)   990. 

IIOS 


463,  464 


SUPREME  COURT  OF  THE  UNITED  STATES. 


OoT.  Tbuc, 


Harmon  (Wafihington  &  G.  R.  Co.  v.  Tob- 
riner)  147  U.  S.  584,  37  L.  ed.  289,  13  Sup. 
Ct.  Rep.  557;  1  Joyce,  Damages,  §S  246, 
276;  Richmond  &  D.  R.  Co.  y.  Elliott,  149 
U.  S.  267,  37  L.  ed.  729,  13  Sup.  Ct.  Rep. 
837;  Boston  k  A.  R.  Co.  ▼.  O'Reilly,  158 
U.  S.  334,  39  L.  ed.  1006,  16  Sup.  Ct.  Rep. 
830;  Norfolk  A  W.  R.  Co.  v.  Holbrook,  235 
U.  S.  625,  59  L.  ed.  392,  35  Sup.  Ct.  Rep. 
143,  7  N.  C.  C.  A.  814. 

Messrs.  Hill  Carter  and  O.  T.  Meredith 

argued  the  cause  and  filed  a  brief  for  de- 
fendant in  error: 

Not  only  did  the  court  in  Seaboard  Air 
Line  R.  Co.  v.  Horton,  233  U.  S.  492,  58  L. 
ed.  1062,  L.R.A.1915C,  1,  34  Sup.  Ct  Rep. 
635,  Ann.  Cas.  1915B,  475,  8  N.  C.  C.  A. 
834,  declare  that,  by  reason  of  the  language 
of  the  employers'  liability  act,  the  doctrine 
of  the  so-called  assumption  of  risk  from 
the  negligence  of  a  fellow  servant  had  been 
abolished,  but,  in  all  cases  arising  imder 
such  act,  so  far  as  we  have  found,  this 
court  has  refused  to  allow  a  master's  ex- 
emption from  liability  for  the  negligence  of 
a  fellow  servant  upon  the  old  doctrine  of 
being  fellow  servants. 

Norfolk  A  W.  R.  Co.  v.  Earnest,  229  U. 
S.  114,  57  L.  ed.  1096,  33  Sup.  Ct.  Rep. 
654,  Ann.  Cas.  1914C,  172;  Wright  v.  Yazoo 
&  M.  Valley  R.  Co.  197  Fed.  94,  235  U.  S. 
376,  59  L.  ed.  277,  35  Sup.  Ct.  Rep.  130; 
Southern  R.  Co.  v.  Gadd,  233  U.  S.  572,  58 
L.  ed.  1099,  34  Sup.  Ct.  Rep.  696;  McGov- 
em  V.  Philadelphia  &  R.  R.  Co.  235  U.  S. 
389,  59  L.  ed.  283,  35  Sup.  Ct.  Rep.  127, 
8  N.  C.  C.  A.  67 ;  New  York  C.  &  H.  R.  R. 
Co.  V.  Carr,  238  U.  S.  260,  59  L.  ed.  1298, 
36  Sup.  Ct.  Rep.  780,  9  N.  C.  C.  A.  1 ;  Cen- 
tral Vermont  R.  Co.  v.  White,  238  U.  S. 
507,  59  L.  ed.  1433,  36  Sup.  Ct.  Rep.  865, 
Ann.  Cas.  1916B,  252,  9  N.  C.  C.  A.  265. 

Where  a  requested  instruction  should  not 
have  been  given,  because  there  was  no  evi- 
dence to  warrant  it,  the  judgment  will  not 
be  reversed  because  it  was  improperly  mod- 
ified. 

Decatur  Cereal  Mill  Co.  v.  Gogerty,  180 
111.  197,  54  N.  E.  231. 

A  judgment  will  not  be  reversed  because 
of  an  erroneous  instruction  unless  the  court 
is  satisfied  that  the  jury  was  thereby  mis- 
led. 

Seaboard  Air  Line  R.  Co.  v.  Padgett,  236 
U.  S.  668,  59  L.  ed.  777,  35  Sup.  Ot.  Rep. 
481;  Bicknese  v.  Brandl,  46  Ind.  App.  269, 
91  N.  E.  41;  Larson  v.  Chicago  &  N.  W.  R. 
Co.  89  Neb.  247,  131  N.  W.  201 ;  Devine  v. 
Chicago  &  C.  River  R.  Co.  168  111.  App. 
460;  McCary  v.  Alabama  G.  S.  R.  Co.  182 
Ala. '697,  62  So.  18;  Richardson  t.  Wood, 
113  Me.  328,  93  Atl.  836. 

Neither  can  the  motion  to  set  aside  the 
1104 


verdict  in  the  case  at  bar  because  it  is  c<m- 
trary  to  the  law  and  evidence,  or  because 
it  is  excessive,  be  considered  by  this  court. 
Such  questions  are  left  to  the  discretion  of 
the  trial  court,  and  are  not  reviewable  by 
and  in  the  courts  of  the  United  States. 

New  York,  L.  E.  A  W.  R.  Co.  v.  Winter, 
143  U.  S.  61-75,  36  L.  ed.  76-81,  12  Sup. 
Ct.  Rep.  356,  8  Am.  Neg.  Cas.  690;  North- 
em  P.  R.  Co,  V.  Charless,  2  C.  C.  A.  380,  7 
U.  S.  App.  359,  51  Fed.  662;  Hughes,  Fed. 
Proc.  2d  ed.  1913,  §  148,  p.  411;  Newcomb 
V.  Wood,  97  U.  S.  581,  24  L.  ed.  1085;  Moore 
V.  United  States,  160  U.  S.  57,  37  L.  ed.  996, 
14  Sup.  Ct.  Rep.  26;  South  Penn  Oil  Co. 
V.  Latshaw,  49  C.  C.  A.  478,  111  Fed.  698,  21 
Mor.  Min.  Rep.  600;  Victor- American  Fuel 
Co.  V.  Peccarich,  126  C.  C.  A.  390,  209  Fed. 
668;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Craft, 
237  U.  S.  648,  69  L.  ed.  1160,  36  Sup.  Ct 
Rep.  704,  9  N.  O.  C.  A.  764. 

Mr.  Justice  Pitney  delivered  the  opinion 
of  the  court: 

This  was  an  action  brought  in  the  United 
States  district  court  imder  the  Federal  em- 
ployers' liability  act  of  April  22,  1908 
(chap.  149,  36  SUt.  at  L.  65,  Comp.  SUt. 
1913,  §  8657). 

Plaintiff  was  a  brakeman  in  defendant's 
employ,  and,  during  the  night  of  July  2, 
1912,  was  called  for  duty  at  Gladstone,  Vir- 
ginia, to  take  his  place  as  head  brakeman 
on  a  fast  interstate  freight  train,  known 
as  a  ''manifest  train,"  comprising  about 
forty  cars,  which  had  just  come  into  the 
division  terminal  yard  at  Gladstone  and 
was  about  to  be  taken  forward.  He  got 
upon  the  road  engine  and  this  was  attached 
to  the  train,  plaintiff  making  the  coupling. 
Just  after  this  he  met  the  yard  master,  who 
had  charge  of  all  the  work  done  in  the  yard, 
whose  orders  plaintiff  waa  bound  to  obey, 
and  who  told  plaintiff,  according  to  his 
testimony,  to  "cut  out  three  cars  at  the 
head  end  of  the  train  [numbers  2,  3,  and  4] 
and  switch  them  off  on  a  side  track  and 
come  back  and  couple  up,  and  they  would 
be  ready  to  go."  Plaintiff  proceeded  with 
the  road  engine  and  crew  to  take  out  the 
three  cars,  returned  to  the  main  track  with 
the  engine  and  car  number  1,  coupled  the 
latter  to  the  forward  end  of  the  train,  and 
was  in  the  act  of  coupling  up  the  air  hose, 
an  operation  that  required  him  to  step  be- 
tween the  rails.  While  [464]  he  was  in 
this  position,  a  collision  took  place,  caused 
by  the  acts  of  the  yard  crew,  who  (unknown 
to  plaintiff),  under  orders  of  the  yard  mas- 
ter, and  with  the  aid  of  the  yard  engine, 
were  engaged  in  switching  cars  at  the  rear 
end  of  the  train,  and  who,  negligently,  at 
the  jury  doubtless  found,  drove  a  cut  ci 
twenty-nine   cars    into   the    standing   cars 

141  U.  8. 


1915. 


CHESAPEAKE  A  0,  R.  CO.  t.  PROFIITT. 


464-466 


(about  eight  in  number)  with  undue  rio- 
lence.  According  to  the  testimony  of  the 
road  engineer  and  fireman  the  jar  of  the 
impact  was  such  that,  although  their  engine 
was  standing;  with  its  independent  brakes 
set,  it  was  thrown  forward  20  feet  along  the 
track.  Naturally  plaintiff  was  knocked 
down  and  run  oyer,  and  he  sustained  seri- 
ous personal  injuries,  including  the  loss  of 
an  arm. 

In  view  of  the  character  of  the  question 
that  is  to  be  passed  upon,  a  somewhat  par- 
ticular recital  of  the  evidence  is  necessary. 
There  was  testimony  that  when  a  manifest 
train  came  into  a  terminal  yard  such  as 
Gladstone,  destined  to  points  further  along 
the  line,  the  engine  and  caboose  were 
changed  and  sometimes  cars  were  taken  out 
and  otliers  brought  into  the  train ;  and  that, 
in  order  to  save  time,  it  was  customary  to 
have  such  shifting  operations,  when  neces- 
sary, done  at  both  ends  of  the  train,  the  road 
engine  and  road  crew  operating  at  the 
front,  the  yard  engine  and  yard  crew  at  the 
rear.  Whether  plaintiff  knew  of  this  cus- 
tom was,  under  the  evidence,  open  to  dis- 
pute. He  at  one  time  denied  that  he  knew 
it  was  customary  for  both  ends  of  a  mani- 
fest train  to  be  "worked"  at  the  same  time; 
and  while  this  was  afterwards  qualified,  it 
appears  not  to  have  been  withdrawn.  He 
admitted  that  it  was  customary  to  follow 
the  instructions  of  the  yard  master,  but  de- 
nied that  on  this  occasicm  the  yard  master 
told  him  anvthin<v  to  the  effect  that  the  rear 
end  of  the  train  was  to  be  worked.  He  testi- 
fied that  he  had  no  notice  that  anything 
was  to  be  done  at  that  end  of  the  train  be- 
yond attaching  the  eaboose,  and  that  [465] 
after  putting  the  second,  third,  and  fourth 
cars  upon  the  side  track,  and  coming  back 
to  the  train,  he  looked  up  the  track,  which 
was  straight,  saw  no  lamp  or  other  signal, 
and  then  proceeded  with  his  coupling  oper- 
ations, with  the  result  already  mentioned. 
Whether  it  was  usual,  in  conducting  such 
switching  operations,  to  have  a  man  at  the 
forward  end  of  the  moving  cut  of  cars,  was 
in  dispute.  Plaintiff  testified  that  "it  is 
the  custom  to  have  a  man  on  the  front  end 
of  a  cut  of  cars  that  is  being  switched  into 
other  cars,  who  looks  out  for  that  and  runs 
and  stops  the  engine  just  before  they  get 
there,  in  making  the  coupling."  Two  of 
defendant's  witnesses  contradicted  this;  one 
in  terms  denying  the  custom  of  giving  a 
warning  as  stated  by  plaintiff;  the  other 
declaring  tliat  "all  the  warning  he  knew 
oi  being  given,  or  the  practice,  was  for  the 
men  in  and  about  the  train  to  take  care 
of  themselves  and  see  for  his  own  danger 
when  he  attempts  to  do  any  work,  and  the 
witness  knew  of  no  signals  given;"  while 
another  and  experienced  witness,  called  by 
00  L.  cd. 


defendant,  being  asked  If  it  was  customary 
when  running  in  a  cut  of  cars  to  have  a 
man  on  the  front  end  with  a  light,  replied: 
"Well,  on  the  yard  in  switching  cars  they 
eome  right  down  to  the  book  rule.  It  says 
where  cars  are  being  shoved  a  man  must 
be  placed  on  the  head  car."  Whether  there 
was  a  man  at  the  forward  end  of  the  cut  of 
cars  that  produced  the  collision  in  question 
was  in  controversy.  As  to  plaintiff's  oppor- 
tunity to  gain  knowledge  of  the  alleged  cus- 
tom, it  did  not  distinctly  appear  that  he 
had  previously  worked  on  a  manifest  train. 
He  testified  tliat  he  had  been  employed  aa 
brakeman  something  more  than  five  years, 
part  of  the  time  as  an  extra  man  and  part 
of  the  time  as  a  regular  man;  that  he  was 
an  extra  man  when  hurt;  had  been  a  regu- 
lar brakeman  until  about  three  weeks  be- 
fore the  accident,  when  he  was  "pulled  off 
the  local  freight." 

Plaintiff  recovered  a  verdiet  for  substan- 
tial damages,  [466]  and  the  judgment  was 
affirmed  by  the  circuit  court  of  appeals.  134 
C.  C.  A.  37,  218  Fed.  23. 

There  are  numerous  assignments  of  error, 
but  most  of  them  are  manifestly  unfounded. 
The  only  ones  requiring  notice  are  based 
upon  the  refusal  of  the  trial  court  to  in- 
struct the  jury  in  accordance  with  defend- 
ant's Request  B,  and  the  modified  instruction 
that  was  given  in  its  stead.  The  re- 
quested instruction  was,  in  substance:  That 
if  the  jury  believed  from  the  evidence  that 
the  method  adopted  by  defendant  in  mak- 
ing up  the  train  on  the  occasion  in  question 
was  the  usual  and  ordinary  method  of  doing 
this  work,  then  plaintiff  assumed  all  the 
risks  incident  to  that  method,  and  they 
should  not  find  a  verdict  in  his  favor  be- 
cause of  any  injury  received  on  account  of 
said  method  of  doing  the  work,  even  though 
it  was  the  direct  and  proximate  cause  of 
his  injury.  The  instruction  given  was,  in 
substance:  That  defendant  had  the  right 
to  adopt  reasonable  rules  and  regulations 
for  the  conduct  and  method  of  handling  its 
trains  in  its  yards,  and  of  making  up  trains 
for  their  departure  therefrom,  and  that  if 
the  jury  believed  from  the  evidence  that  the 
custom  prevailed  in  the  Gladstone  yard  of 
making  up  the  train  from  both  ends  at  the 
same  time,  that  is  to  say,  by  working  the 
train  engine  and  crew  at  the  forward  end 
and  the  yard  engine  and  its  crew  at  the 
rear  end,  and  that  such  method  was  one 
that  reasonably  prudent  and  careful  men 
would  have  adopted  in  the  conduct  of  the 
business,  then  the  plaintiff  assumed  the 
risks  reasonably  and  usually  incident  to  and 
arising  from  such  method  of  making  up 
trains,  and  they  should  not  find  a  verdict 
in  his  favor  because  of  any  injury  received 
solely  on  account  of  said  method  of  making 
70  110ft 


466-469 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TksM, 


np  the  train,  although  they  believed  from 
the  OTidence  that  the  method  adopted  waa 
the  proximate  cause  of  the  injury. 

The  argument  for  plaintiff  in  error  is 
that  an  employee  assumes  the  risks  arising 
from  the  employer's  method  of  [467]  doing 
the  work,  where  the  dangers  are  open,  obvi- 
ous, or  luiown  to  the  employee,  even  though 
they  be  due  to  the  employer's  n^ligence  In 
establishing  the  method  or  system;  that 
the  eustomary  method  of  shifting  and 
coupling  cars  at  both  ends  of  a  manifest 
train  at  the  same  time^  without  notice  or 
warning  to  those  working  at  the  other  end, 
was  open,  obvious,  and  luiown  to  plaintiff; 
and  that  he  therefore  assumed  the  risk  of 
any  injury  from  that  source. 

It  appears  to  have  been  conceded  by  plain- 
tiff in  the  circuit  court  of  appeals  that  the 
attaching  and  detaching  of  cars  by  working 
on  lx>th  ends  of  the  train  at  the  same  time 
was  customary  at  the  Gladstone  yard;  but 
it  does  not  appear  to  have  been  conceded 
in  that  court  or  in  the  trial  court  that 
plaintiff  Icnew  of  this  custom,  or  had  had 
such  opportunity  for  luiowledge  as  to  be 
charged  with  notice  of  it.  Nor  was  it  con- 
ceded that  the  custom  included  the  pushing 
in  of  a  cut  of  cars  without  a  man  at  their 
head  to  give  warning  to  other  workmen  and 
to  signal  the  engineer  to  slacken  speed.  As 
already  shown,  the  evidence  left  these  mat- 
ters open  to  dispute. 

There  are  several  reasons  why  error  can- 
not be  attributed  to  the  trial  court  for 
refusing  the  requested  instruction  B. 

(a)  The  evidence  left  it  in  doubt  what 
method  was  adopted  in  making  up  the  train 
in  question  and  what  was  the  usual  and  or- 
dinary method,  and  the  request  therefore 
failed  to  define  what  state  of  facts  should 
charge  plaintiff  with  an  assumption  of  the 
rUk. 

(b)  The  request  ignored  the  question 
whether  plaintiff  had  knowledge  or  was 
chargeable  with  notice  of  the  customary 
method.  The  argument  in  effect  concedes, 
what  is  plainly  inferable  from  the  evidence, 
that  the  danger  to  a  brakeman  at  work  in 
switching  at  one  end  of  a  manifest  train, 
arising  from  switching  operations  conducted 
by  another  crew  at  the  other  end,  is  not 
among  the  ordinary  [468]  risks  of  a  brake- 
man's  employment.  But,  if  it  was  an  un- 
usual and  extraordinary  danger,  plaintiff 
could  not  be  held  to  have  assumed  it,  in  the 
absence  of  Icnowledge  or  notice  on  his  part. 
To  subject  an  employee,  without  warning, 
to  unusual  dangers  not  normally  incident  j 
to  the  employment,  is  itself  an  act  of  negli-  j 
gence.  And,  as  has  been  laid  down  in 
repeated  decisions  of  this  court,  while  an  em- 
ployee assumes  the  risks  and  dangers  ordi- 
narily incident  to  the  employment  in  which 
1106 


he  voluntarily  engages,  so  far  as  these  are 
not  attributable  to  tha  negligence  of  the 
employer  or  of  those  for  whose  eonduet  the 
employer  ia  responsible,  the  employee  has  a 
right  to  assume  that  the  employer  baa  exer- 
cised proper  care  with  respect  to  providing 
a  reasonably  safe  place  of  work  (and  this 
includes  care  in  establishing  a  reasonably 
safe  wyBtem  or  method  of  work),  and  is  not 
to  be  treated  as  assuming  a  risk  that  is 
attributable  to  the  employer's  negligence 
until  he  becomes  aware  of  it,  or  it  is  so 
plainly  observable  that  he  must  b^  presumed 
to  have  known  of  it.  The  employee  is  not 
obliged  to  exercise  care  to  discover  dangers 
not  ordinarily  incident  to  the  employment, 
but  which  result  from  the  employer's  negli- 
gence. Texas  &  P.  R.  C!o.  v.  Archibald,  170 
U.  S.  665,  671,  672,  42  L.  ed.  1188,  1191,  18 
Sup.  Ct.  Rep.  777,  4  Am.  Neg.  Rep.  74G; 
Choctaw,  0.  k  G.  R.  Co.  v.  McDade,  191  U. 
S.  64,  68,  48  L.  ed.  96,  100,  24  Am.  Neg. 
Rep.  24,  15  Am.  Neg.  Rep.  230 ;  Texaa  k  P. 
R.  Co.  V.  Harvey,  228  U.  S.  319,  321,  57  L 
ed.  852,  855,  33  Sup.  Ct  Rep.  518;  Gila 
Valley,  G  &  N.  R.  Co.  v.  Hall,  232  U.  &  94, 
101,  58  L.  ed.  521,  524,  34  Sup.  Ct.  Bq). 
229;  Seaboard  Air  Line  R.  Co.  y.  Horton, 
233  U.  S.  492,  504,  58  L.  ed.  1062,  1070, 
L.R.A.  1915C,  1,  34  Sup.  Ct  Rep.  635,  Ann. 
Cas.  1915B,  475,  8  N.  C.  C.  A.  834. 

(c)  The  request  required  defendant  to  be 
acquitted  if  the  usual  method  of  doing  the 
work  was  pursued,  irrespective  of  the  ques- 
tion of  the  negligence  of  the  yard  erew  in 
carrying  it  out.  N^ligence  in  the  doing 
of  the  work  was  the  gravamen  of  plaintiff's 
complaint,  in  his  declaration  aa  in  his  evi- 
dence, and  defendant  was  not  entitled  to  sn 
instruction  making  the  pursuit  of  a  cus- 
tomary system  decisive  of  the  issue,  without 
regard  to  whether  due  care  was  exercised  in 
doing  the  work  itself.  Even  if  plaintiff  knew 
smd  assumed  the  risks  of  an  inherently 
[460]  dangerous  method  of  doing  the  work, 
he  did  not  assume  the  increased  risk  at- 
tributable not  to  the  method,  but  to  negli- 
gence in  pursuing  it  Had  the  instruction 
been  given  in  form  as  requested,  the  jury, 
in  view  of  the  issue  and  the  evidence,  might 
easily  have  interpreted  it  sis  meaning  that 
if  defendant's  employees  usually  and  cus- 
tomarily made  up  trains  in  such  a  manner 
that  by  a  violent  collision  produced  by  neg- 
ligent switching  operations  at  the  rear  end 
of  a  long  train  a  brakeman  engaged  in  the 
performance  of  his  duties  at  the  forward 
end,  and  having  no  notice  or  warning  of 
the  rear-end  switching,  was  in  danger  of 
serious  personal  injury,  there  waa  no  liabil- 
ity.   This,  of  course,  is  not  the  law. 

Nor  is  the  modification  of  the  requested 
instruction  a  matter  of  which  defendant 
may  complain.    The  court  evidently  under- 

141  U.  S. 


1915. 


CHICAGO  A  N.  W.  R.  00.  ▼.  BOWER. 


4«0,  470 


ftood  the  request  as  meaning  no  more  than 
what  it  said,  and  as  not  intended  to  embrace 
the  hypothesis  that  plaintiff  knew  or  had 
Botioe  that  the  usual  method  of  making  up 
trains  was  that  adopted  on  the  occasion  in 
question.  In  the  absence  of  such  knowledge 
or  notice,  the  custom  eould  not  be  made 
binding  upon  plaintiff;  certainly  not  with- 
out a  finding  that  it  was  one  that  a  reason- 
ably careful  employer  would  have  adopted. 
It  was  this  finding  that  the  modification 
called  for. 
Judgment  affirmed. 


[470]     CHICAGO    &    NORTHWESTERN 
RAILWAY  COMPANY,  Plff.  in  Err. 

▼. 

WILLIAM  BOWER. 

(See  S.  C.  R^orter's  ed.  470-476.) 

Trial  —  sufflciency  of  evidence  to  go  to 
tlie  jury  —  negligence. 

1.  The  submission  to  the  jury  of  the 
question  whether  a  railway  company  was 
negligent  in  furnishing  a  high-pressure 
locomotive  with  a  lubricator  having,  tubular 
glasses  is  proper  where  there  Is  evidence 
tending  to  show  that  this  type  of  appliance 
had  been  kept  in  use  after  its  insufficiency 
had  been  demonstrated  by  experience,  and 
perhaps  under  conditions  materially  differ- 
ent from  those  which  obtained  when  its  use 
began,  in  the  face  of  notice  that  it  was  not 
safe  and  suitable. 

(For  other  cases,  see  Trial*  VI.  b,  in  Digest 
Sup.   Ct.   1008.J 

Blaster  and  servant  —  assumption  of 

risk  —  increased  haaard. 

2.  An  experienced  railway  engineer, 
though  aware  of  certain  dangers  naturally 
incident  to  the  use  of  a  lubricator  having 
tubular  glasses,  does  not  assume  the  in- 
creased risk  of  explosion  of  the  glasses  at- 
tributable to  the  railway  company's  negli- 
gence in  maintaining  such  a  type  of  ap- 
pliance on  a  high-pressure  engine,  where 
he  did  not  know  and  had  no  ground  to  be- 
lieve that  the  railway  company  had  been 
wanting  in  the  exercise  of  proper  care  for 
his  safety,  or  that,  because  of  such  want  of 
care,  the  danger  to  him  was  greater  than  it 
should  have  been. 

(For  otlicr  cases,  see  Master  and  Servant,  II. 
b.  in  Digest  Sap.  Ct.  1008.] 

[No.  301.] 


Argued  March  10  and  17,  1910.     Decided 

June  5,  1016. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Nebraska  to  review  a  judgment 
which  affirmed  a  judgment  of  the  District 
Court  for  Holt  County,  in  that  state,  in 
favor  of  plaintiff  in  an  action  under  the 
Federal  employers'  liability  act.  Affirmed. 
See  same  ease  below,  96  Neb.  410,  148 
N.  W.  146. 
The  facts  are  stated  in  the  opinion. 

Mr.  A.  A.  McLaughlin  argued  the  cause, 
and,  with  Mr.  William  G.  Wheeler,  filed  a 
brief  for  plaintiff  In  error: 

The  mere  happening  of  the  accident  is  not 
evidence  of  negligence. 

Patton  V.  Texas  &  P.  R.  Co.  170  U.  S. 
658,  663,  664,  45  L.  ed.  361,  364,  365,  21 
Sup.  Ct.  Rep.  276;  Chicago  A  N.  W.  R.  Co. 
V.  O'Brien,  67  C.  C.  A.  421,  132  Fed.  503; 
Chicago,  B.  &  Q.  R.  Co.  v.  Kellogg,  65  Neb. 
748.  76  N.  W.  462,  5  Am.  Neg.  Rep.  50; 
Cudahy  Packing  Co.  v.  Roy,  71  Neb.  600, 
09  N.  W.  231. 

The  fact  that  the  Bull's  Eye  lubricator 
may  have  been  a  new  and  better  appliance 
was  not  sufficient  to  show  that  the  defend- 
ant was  n^ligent  in  using  the  lubricator 
complained  of. 

4  Thomp.  Neg.  §  3993;  Washington  k  O. 
R.  Co.  V.  McDade,  135  U.  S.  654,  570,  34 
L.  ed.  236,  241,  10  Sup.  Ct.  Rep.  1044; 
Westinghouse  Electric  A  Mfg.  Co.  v.  Heim- 
lich, 62  C.  C.  A.  92,  127  Fed.  93;  Omaha 
Bottling  Co.  V.  Theiler,  59  Neb.  257,  80  Am. 
St.  Rep.  678,  80  N.  W.  821;  Central  Gran- 
aries  Co.  v.  Ault,  76  Neb.  249,  106  N.  W. 
418,  107  N.  W.  1016. 

An  employee  assumes  the  risk  oi  injury 
in  using  defective  machinery  or  appliances 
when  defects  and  dangers  are  known  to  him, 
or,  in  the  exercise  of  reasonable  care,  the 
same  should  have  been  known  to  him. 

Seaboard  Air  Line  R.  Co.  v.  Horton,  233 
U.  S.  492,  504,  68  L.  ed.  1062,  1070,  L.R.A. 
1915C,  1,  34  Sup.  Ct.  Rep.  635,  Ann.  Cfeis. 
1015B,  476,  8  N.  C.  C.  A.  834;  Texas  A  P. 
R.  Co.  V.  Harvey,  228  U.  S.  310,  321,  322, 
67  L.  ed.  862,  866,  856,  33  Sup.  Ct.  Rep. 
618;  Chicago,  B.  A  Q.  R.  Co.  v.  Shalstrom, 
45  L.R.A.(N.S.)  387,  115  C.  C.  A.  616,  195 
Fed.  720;  Utah  Consol.  Min.  Co.  v.  Bate- 


Note. — Generally,  as  to  servant's  assump- 
tion of  risk — see  notes  to  Pidcock  v.  Union 
P.  R.  Co.  1  L.R.A.  131;  Foley  v.  Pettee 
Mach.  Works,  4  L.ILA.  61;  Howard  v.  Dela- 
ware A  H.  Canal  Co.  6  L.ILA.  76;  Hunter 
v.  New  York,  O.  A  W.  R.  Co.  6  'UB.JL.  246; 
Georgia  P.  R.  Go.  v.  Dooly,  12  L.ILA.  342; 
Kehler  v.  Schwenk,  13  L.R.A.  374,  and 
Southern  P.  Co.  v.  Seley,  38  L.  ed.  U.  8. 
301. 

On  volenti  non  fit  injuria  as  defense  to 
•0  li.  ed. 


action  by  injured  servants — see  note  to 
O'Maley  v.  South  Boston  Gaslight  Co.  47 
L.R.A»  162. 

As  to  whether  a  servant  may  assume  the 
risk  of  dangers  created  by  the  master's 
negligence — see  note  to  Scheurer  v.  Banner 
Rubber  Co.  28  L.R.A.(N.S.)  1215. 

As  to  servant's  assumption  of  risk  of 
dangers  imperfectly  appreciated — see  note 
to  Tuckett  V.  American  Steam  A  Hand  Laun- 
dry, 4  L.R.A.  (N.S.)  990. 

1107 


470-472 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tkem, 


man,  27  L.R.A.(N.S.)  958,  99  0.  C.  A.  365, 
176  Fed.  63;  St.  Louis  Ck>rdage  Co.  ▼.  Mil- 
ler, 63  L.RJ1.  651,  61  C.  C.  A.  477,  126  Fed. 
511,  15  Am.  Neg.  Rep.  476;  Ittner  Brick  Co. 
▼.  KUlian,  67  Neb.  689,  93  N.  W.  951,  13 
Am.  Neg.  Rep.  652;  Vanderpool  v.  Part- 
ridge, 79  Neb.  165,  13  L.RJ^.(N.S.)  668, 
112  N.  W.  318;  New  York,  N.  H.  A  H.  R. 
Co.  T.  Virvari,  L.R.A.1915C,  9,  126  C.  C.  A. 
632,  210  Fed.  118;  Schlemmer  v.  Buffalo,  R. 
k  P.  R.  Co.  220  U.  S.  590,  506,  65  L.  ed. 
596,  600,  31  Sup.  Ct.  Rep.  561. 

Instruction  No.  3,  requested  by  defend- 
ant in  error,  and  given  to  the  jury,  was 
erroneous  in  that  it  advised  the  jury  that 
if  plaintiff  in  error  was  negligent  in  fur- 
nishing or  maintaining  lubricator  glass,  the 
defendant  in  error  would  not  assume  the 
risk,  and  the  supreme  court  of  Nebraska 
erred  in  not  reversing  the  case  because  of 
the  giving  of  such  instruction. 

Texas  &  P.  R.  Co.  v.  Harvey,  228  U.  S. 
319,  321,  57  L.  ed.  852,  855,  33  Sup.  Ot. 
Rep.  518 ;  Seaboard  Air  Line  R.  Co.  v.  Hor- 
ton,  233  U.  S.  492,  504,  58  L.  ed.  1062, 1070, 
L.R.A.1915C,  1,  34  Sup.  Ct  Rep.  635,  Ann. 
Cas.  1915B,  475,  8  N.  C.  C.  A.  834;  Gila 
Valley  G.  &  N.  R.  Co.  v.  HaU,  232  U.  S.  94, 
101,  102,  58  L.  ed.  521,  524,  525,  34  Sup. 
Ct.  Rep.  229. 

Messrs.  A.  A.  McLaughlin,  William  G. 
Wheeler,  and  Wymer  Dressier  filed  a  sep- 
arate brief  for  plaintiff  in  error. 

Mr.  Michael  F.  Harrington  argued  the 
cause  and  filed  a  brief  for  defendant  in 
error. 

Mr.  Justice  Pitney  delivered  the  opinion 
of  the  court: 

We  have  here  under  review  a  judgment 
of  the  supreme  court  of  Nebraska,  affirm- 
ing a  judgment  in  favor  of  defendant  [471] 
in  error  in  an  action  baaed  upon  the  Federal 
employers'  liability  act  of  April  22,  1908 
(chap.  149,  35  Stat,  at  L.  65,  Comp.  Stat. 
1913,  S  8657),  for  the  loss  of  an  eye  caused 
by  the  breaking  of  a  lubricator  glass  on  a 
locomotive  engine  upon  which  he  was  at 
work  aa  engineer  in  the  employ  of  plaintiff 
in  error.    96  Neb.  419,  148  N.  W.  145. 

No  question  is  made  but  that  the  cause 
of  action  arose  in  interstate  commerce  so 
as  to  bring  the  case  within  the  Federal  act. 
The  facts  upon  which  the  question  of  lia- 
bility depends  are  these:  The  plaintiff  in 
the  action  (defendant  in  error)  was  an  ex- 
perienced locomotive  engineer.  At  the  time 
of  his  injury,  which  occurred  at  night  in 
the  month  of  November,  1910,  he  had  just 
oiled  his  engine,  taken  it  from  the  round- 
house, and  placed  it  upon  the  outgoing 
track  in  readiness  for  his  run.  The  engine 
was  equipped  with  a  Nathan  lubricator,  an 
llOS 


appliance  containing  oil  for  the  steam 
cylinders  and  the  air  pump,  the  oil  being 
conducted  to  and  within  the  parts  where 
needed  under  steam  pressure  from  the  boiler. 
In  order  to  give  the  engineer  a  view  of  the 
interior  of  the  apparatus,  and  thus  enable 
him  to  see  that  the  oil  was  dropping,  three 
cylindrical  glass  tubes  were  attached,  one 
carrying  the  oil  for  eaeh  steam  cylinder 
and  one  for  the  air  pump.  Each  t>f  these 
glasses  was  surrounded  with  a  shield  of 
perforated  metal  in  two  parts,  hinged  to- 
gether and  lightly  clamped  upon  the  glass 
tube  by  means  of  a  spring  to  hold  it  in 
place.  When  the  lubricator  was  in  opera- 
tion, the  tubes  were  required  to  sustain 
the  same  steam  pressure  as  the  boiler. 
These  tubular  glasses  would  sometimes 
break.  This  was  most  liable  to  occur: 
(1)  when  a  glass  was  newly  installed,  and 
before  it  had  been  properly  tempered;  (2) 
when  it  was  subjected  to  a  sudden  change 
of  temperature,  as  when  steam  was  admitted 
to  it  while  cold;  and  (3)  they  would,  after 
six  or  seven  weeks'  use,  sometimes  "wear 
thin"  and  break  for  this  reason.  The 
metal  shield  was  designed  in  part,  at  least, 
to  prevent  injury  to  the  [472]  engineer 
from  flying  pieces  in  case  the  glass  should 
break.  This  type  of  lubricator  had  been  in 
use  for  over  twenty  years,  and  had  been 
used  upon  all  defendant's  engines  down  to  a 
time  between  three  and  four  years  prior  to 
the  accident.  Then  a  new  type,  known  as 
the  Bull's  Eye,  came  into  use,  and  was  recog- 
nized as  a  better  appliance  because,  being 
unbreakable,  it  was  safer  for  the  engineer, 
and  at  the  same  time  obviated  the  loss  of 
time  and  delay  of  trains  attributable  to 
breakage  of  lubricators  of  the  Nathan  type; 
and  defendant  began  to  instal  Bull's  Eye 
lubricators  in  the  place  of  the  older  type 
upon  engines  already  in  use,  and  to  place 
them  upon  all  new  engines.  During  the 
earlier  period  of  the  use  of  the  Nathan,  and 
before  the  construction  of  locomotives  of 
classes  Q  and  R,  the  engines  carried  only 
140  to  150  pounds  boiler  pressure,  while  en- 
gines of  the  classes  mentioned  carried  190 
pounds.  An  experienced  witness  called  by 
defendant  testified  that,  at  the  time  of  the 
trial  (about  a  year  after  the  accident),  ap- 
proximately 25  per  cent  of  the  engines  were 
still  using  the  Nathan  lubricator  and  76 
per  cent  were  equipped  with  the  Bull's  Eye; 
that  the  Bull's  Eye  was  and  had  been,  for 
three  or  four  years,  recognized  as  "the  prop- 
er appliance;"  that  the  Nathan  was  dan- 
gerous to  the  men,  and  that  the  change  was 
being  made  partly  because  of  this  and  part- 
ly because  the  breaking  of  the  old  style 
lubricator  sometimes  delayed  trains. 

Plaintiff  testified  that  during  most  of  the 
time  for  the  past  twenty  years  he   had 

141  V.  8. 


1916. 


CHICAGO  &  N.  W.  &.  CO.  t.  BOWER. 


472^76 


operated  locomotives  equipped  with  Natban 
lubricators  baving  tubular  glasses,  but  not 
all  of  these  were  high-pressure  eugines.  The 
engine  on,  which  he  was  injured  was  of 
class  R,  and  carried  a  boiler  pressure  of 
190  pounds.  He  bad  operated  it  for  about 
two  months  prior  to  the  time  of  his  injury. 
During  hia  experience  of  twenty  years, 
lubricator  glasses  had  broken  with  him  on 
three  previous  occasions,  the  last  being 
about  three  weeks  before  the  occurrence  in 
question.  At  this  [473]  time  he  asked  that 
a  Bull's  Eye  be  substituted  on  his  engine. 
He  testified  that  this  was  not  because  he 
considered  the  old  lubricator  dangerous,  but 
because  he  wanted  to  save  time  on  the  road 
in  the  event  of  a  breakdown.  He  also  tes- 
tified that  he  knew  that  when  a  new  glass 
was  put  into  a  Nathan  lubricator  it  was 
liable  to  burst  if  the  steam  was  turned  on 
suddenly,  or  if  steam  was  turned  on  quickly 
in  cold  weather,  and  that  on  the  occasion  in 
question,  following  the  correct  practice,  he 
first  partially  opened  the  throttles,  admit- 
ting the  steam  to  the  tubes  to  warm  them, 
afterwards  fully  opening  the  throttles,  and 
that  it  was  aboui.  seven  minutes  after  this 
was  done  that  the  explosion  occurred. 

Ihe  trial  court  submitted  the  case  to  the 
jury  with  instructions  to  the  effect  that  the 
burden  of  proof  was  upon  plaintiff  to  show 
that  defendant  had  carelessly  and  negli- 
gently maintained  the  shield  and  spring  and 
glass  in  tlie  lubricator  in  a  weak  and  dan- 
gerous condition,  that  the  lubricator  glass 
was  not  of  sufficient  strength  for  use  upon 
the  engine  in  question  or  any  other  engine 
carrying  100  pounds  of  steam,  and  that  this 
fact  was  known  to  defendant,  or  that  its 
experience  with  said  glass  and  lubricator 
had  been  such  that  it  ought  to  have  known 
til  at  the  same  was  insufiicient  and  danger- 
ous; and  that  if  they  believed  from  a  pre- 
ponderance of  the  evidence  that  defendant 
was  thus  negligent,  and  that  plaintiff  was 
injured  as  a  result  of  it,  they  should  find 
for  the  plaintiff,  otherwise  for  the' defend- 
ant. 

The  principal  controversy  is  as  to  wheth- 
er the  evidence  was  sufficient  to  go  to  the 
jury  upon  the  question  of  defendant's  neg- 
ligence in  furnishing  the  locomotive  in  ques- 
tion with  a  lubricator  having  tubular 
glasses  as  described. 

The  rule  of  law  is:  That  the  employer 
is  under  a  duty  to  exercise  ordinary  care 
to  supply  machinery  and  appliances  rea- 
sonably safe  and  suitable  for  the  use  of 
the  employee,  [474]  but  is  not  required  to 
furnish  the  latest,  best,  and  safest  appli- 
ances, or  to  discard  standard  appliances 
upon  the  discovery  of  later  improvements, 
provided  thoite  in  use  are  reasonably 
safe  and  suitable.  Washingtcm  dt  Q.  R. 
•0  li.  ed. 


fCo.    Y.    McDade,    135    U.    S.    554,    570, 
34    L.    ed.    235,    241,    10    Sup.    Ct    Rep. 
1044;     Patton    v.     Texas    Jb     P.     R.    Co. 
179     U.     S.     658,    664,     45    L.     ed.     361» 
364,  21  Sup.  Ct.  Rep.  275.    In  our  opinion, 
a  correct  application  of  this  rule  required 
the  preilent  case  to  be  submitted  to  the  jury. 
Properly  limiting  the  inquiry  (and,  as  we 
have  seen,  the  trial  court  did  so  limit  it), 
there  was  no  question  of  attributing  neg- 
ligence to  an  employer  for  merely  failing  to 
promptly  instal  the  latest,  best,  and  safest 
appliance;  It  was  a    question  of  keeping  an 
older  type  of  appliance  in  use  after  its  in- 
sufficiency  had   been   demonstrated   by   ex- 
perience, and  perhaps  under  conditions  ma- 
terially   different    from    those    which    had 
obtained  when  its  use  began,  in  the  face  of 
notice  that  it  was  not  reasonably  safe  and 
suitable.    It  was  reasonably  inferable  from 
the  evidence  that  defendant's  experience  had 
shown  that  a  glass  tube  capable  of  with- 
standing the  lower  pressures  of  140  to  150 
pounds  could  not  be  relied  upon  to  with- 
stand a  pressure  of  190  pounds,  and  that 
the  difficulty  could  not  be  obviated,  as  was 
attempted,  by  using  thicker  glass  for  the 
tubes,  because  its  very  thickness  increased 
the  danger  of  bursting  when  steam  was  first 
admitted;  there  being  evidence  from  a  wit- 
ness called  by  defendant  that  the  older  typo 
of  lubricater  was  a  dangerous  instrument 
to  be  used  upon  a  high-pressure  boiler,  and 
that  they  broke  rather  frequently;  that  it 
was  for  this  reason,  in  part,  that  defend- 
ant had  introduced  the  Bull's  Eye,  begin- 
ning three  or  four  years  before  the  accident, 
installing  them  first  upon  high-pressure  en- 
gines of  the  Q  and  R  classes,  and  having 
already   placed   them   upon  a  majority  of 
defendant's   engines  of   all   sizes.     In   this 
state  of  the  evidence  it  could  not  be  said, 
as  matter  of  law,  that  defendant  was  free 
from  negligence  in  delaying  so  long  to  in- 
stal a  Bull's  Eye  lubricator  upon  the  engine 
in  question. 

[475]  The  only  other  question  relates  to 
whether  plaintiff  assumed  the  risk  of  per- 
forming his  duty  upon  a  locomotive  equipped 
with  the  Nathan  lubricator.  Instructions 
were  given  to  the  jury  upon  the  subject, 
but  they  are  open  to  some  criticism  which 
perhaps  can  be  obviated  only  by  holding, 
as  the  supreme  court  of  Nebraska  held, 
that  there  was  nothing  in  the  evidence  that 
would  sustain  a  finding  that  plaintiff  as- 
sumed the  risk. 

The  crucial  question  is  whether  he  knew 
or  had  sufficient  notice  of  the  increased  dan- 
ger attributable  to  the  employer's  negli- 
gence. Plaintiff  testified  without  contra- 
diction that  it  was  his  understanding — ^he 
had  been  "always  taught  to  believe" — ^that 
the  Nathan  lubricator  would  stand  the  boil- 

llOt 


475.  476 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


er  pressure  of  190  pounds.  Assuming,  as 
the  undisputed  evidence  shows  he  had  a 
right  to  assume,  that  the  glass  was  being 
subjected  to  no  greater  bursting  strain  than 
it  was  designed  to  withstand,  he  still  knew 
that,  under  special  circumstances  that  have 
been  pointed  out,  there  waa  danger  of  a 
glass  bursting  unless  precautions  were 
taken.  Any  risk  of  this  character,  im- 
affected  by  his  employer's  negligence,  he  un- 
doubtedly assumed,  as  a  risk  ordinarily  in- 
cident to  the  occupation  he  pursued.  But 
this  throws  no  light  upon  his  right  to  re- 
cover, because  if  he  was  subjected  to  no 
greater  risk  than  that  just  now  indicated, 
the  employer  was  not  negligent  and  there 
was  no  ground  of  recovery.  Under  the  trial 
court's  instructions,  the  jury  must  be  pre- 
sumed to  have  foimd  that  the  Nathan  lubri- 
cator glasses  had  been  shown  by  experience 
to  be  incapable  of  withstanding  a  pressure 
of  190  pounds,  that  defendant  knew  of  this, 
and  nevertheless  negligently  maintained 
such  glasses  upon  plaintiff's  engine.  There 
was  present,  therefore,  an  extraordinary 
danger,  not  normally  incident  to  plaintiff's 
employment;  it  was  in  its  nature  latent, 
and  not  obvious;  and  there  is  no  evidence 
in  the  record  that  plaintiff  had  received  any 
notice  or  warning  of  the  increased  hazard 
attributable  to  his  employer's  [476]  negli- 
gence. In  short,  while  he  knew  there  were 
certain  dangers  naturally  incident  to  the  use 
of  tubular  glasses  upon  the  lubricator,  there 
is  nothing  to  show  that  he  knew  or  had  any 
ground  to  believe  that  his  employer  had 
iiecn  wanting  in  the  exercise  of  proper  care 
for  his  safety,  or  that  because  of  such  want 
of  care  the  danger  to  him  was  greater  than 
it  ought  to  have  been.  Without  this,  he 
could  not  be  held  to  have  assumed  the  in- 
creased risk.  Gila  Valley,  G.  &  N.  R.  Co. 
v.  Hall,  232  U.  S.  94,  101,  58  L.  ed.  521, 
524,  34  Sup.  Ct.  Rep.  229;  Seaboard  Air 
Line  R.  Co.  v.  Horton,  233  U.  S.  492,  504, 
58  L.  ed.  1062,  1070,  L.R.A.1015C,  1,  34 
Sup.  Ct.  Rep.  635,  Ann.  Cas.  1915B,  475,  8 
X.  C.  C.  A.  834. 
Judgment  affirmed. 


SAN  ANTONIO  k  ARANSAS  PASS  RAIL- 
WAY COMPANY,  Plff.  in  Err., 

V. 

WILLIAM  WAGNER. 

(See  8.  0.  Reporter's  ed.  476-486.) 

Appeal  —  record  —  noticing  error  not 
assigned. 

1.  The  failure  to  plead  or  prove  that 
plaintiff,  in  an  action  based  on  the  safety 
appliance  acts  of  March  2,  1898  (27  Stat. 
1110 


at  L.  581,  chap.  196,  Comp.  Stat.  1913, 
§  8605),  and  March  2,  1903  (32  Stat,  at  L. 
943,  OiKp.  976,  Comp.  Stat.  1913,  §  8613), 
and  the  employers'  liability  act  of  April  22, 
1908  (35  Stat,  at  L.  65,  chap.' 149,  Comp. 
Stat.  1913,  §  8657),  was  emploved  in  inter- 
state commerce  at  the  time  of  his  injury, 
will  not  be  noticed  as  a  "plain  error^  wiUi 
which  the  Federal  Supreme  Court,  on  writ 
of  error,  may  deal,  under  rule  21,  f  4,  al- 
though not  assigned,  since  (a)  the  omission 
may  have  been  due  to  an  oversi^t  that 
would  have  been  corrected  if  the  point  had 
been  properly  raised  below,  and  (b)  the 
safety  appliance  acts  being  in  any  event 
applicable, — the  railway  being  admittedly 
a  highway  of  interstate  commerce, — ^whether 
plaintiff  was  employed  in  such  commerce  or 
not,  the  only  materiality  of  the  question 
whether  the  employers'  liability  act  also  vp* 
plies  is  in  its  bearmg  on  the  defense  of  eoo- 
tributory  negli^^ce,  and  that  defense  not 
having  been  raised  at  the  trial,  the  failure 
of  pleading  or  proof  should  not  be  consid- 
ered as  a  ground  for  reversal,  it  not  having 
been  made  the  basis  of  any  assif^nment  of 
error. 

[For  other  cases,  see  Appeal  and  Error,  Y.  t, 
in  Digest  Sap.  Ct  1908.] 

Note. — On  the  general  subject  of  writs  of 
error  from  the  United  States  Supreme 
Court  to  state  courts — see  notes  to  Martin 
V.  Hunter,  4  L.  ed.  U.  8.  97;  Hamblin  v. 
Western  Land  Co.  37  L.  ed.  U.  S.  267;  Be 
Buchanan,  39  L.  ed.  U.  8..  884,  and  Kip^y 
V.  Illinois,  42  L.  ed.  U.  S.  998. 

On  what  questions  the  Federal  Supreme 
Court  will  consider  in  reviewing  the  judg- 
ments of  state  courts — see  note  to  Missouri 
ex  rel.  Hill  v.  Dockery,  68  L.R.A.  571. 

On  the  constitutionality,  application,  and 
effect  of  the  Federal  employers'  liaHlity 
act^— see  notes  to  Lamphere  v.  Oregon  R.  k 
Nav.  Co.  47  L.R.A.(N.S.)  38,  and  Seaboard 
Air  Line  R.  Co.  v.  Horton,  LJLA.19150.  47. 

On  du^  and  liability  under  Federal  and 
state  railway  safety  appliance  acts — see 
notes  to  Chicago,  M.  &  St.  P.  R.  Co.  ▼. 
United  States,  20  L.R.A.(N.S.)  473,  and 
Lake  Shore  &  M.  S.«  R.  Co.  ▼.  Benson,  41 
L.R«^.(N.S.)  49. 

Error  to  state  court  in  eases  arising  under 
Federal  safety  appliance  acta. 

Jurisdiction. 

A  party  who  insists,  by  way  of  objection 
to  or  requests  for  instructions,  upon  a  con- 
struction of  a  Federal  statute  such  aa  the 
safetv  appliance  act  of  March  2, 1893,  which 
will  lead  to  a  judgment  in  his  favor,  seta  up 
a  claim  of  a  right  or  immunity,  under  such 
statute,  within  the  meaning  of  U.  S.  Rev. 
Stat.  S  709,  governing  write  of  &tot  from 
the  Supreme  Court  of  the  United  States  to 
state  courte.  St.  Louis,  I.  M.  Jb  8.  R.  Co. 
V.  Taylor,  210  U.  8.  281,  52  L.  ed.  1061, 
28  Sup.  Ct  Rep.  616,  21  Am.  Neg.  Rep.  464. 

A  decision  of  a  stete  court  adverse  to 
plaintiff  in  error's  contention  that,  by  the 
true  construction  of  the  Federal  employers' 

141  U.  S. 


1915. 


SAN  ANTONIO  &  4.  P.  R.  CO.  t.  WAGNBR. 


Appeal  —  ooiiBlderixic  matters  ontalde 
record. 

2.  The  Federal  Supreme  Court  will 
look  only  to  the  certified  transcript  of  the 
record  to  ascertain  what  rulings  on  evi- 
dence were  made  by  the  trial  court. 

[For  other  cases,  see  Appeal  and  Brror,  Y.  h, 
in   Digest  Sap.  Ct.   1908.] 

Elvidcnce  —  safflciency  —  defect  in  auto- 
matic couplers. 

3.  Evidence  that  the  coupling  pin  on 
a  box  car  failed  to  drop  as  it  should  have 
done  at  the  first  impact  with  a  locomotive, 
and  required  manipulation  in  preparation 
for  the  second  impact,  and  that  the  draw- 
bar of  the  engine  was  so  far  out  of  line 
as  to  require  adjustment  in  preparation 
for  the  second  impact,  together  with  the 
testimony  of  an  experienced  brakeman  as 
an  expert  that  when 'the  coupling  appara- 


tus of  automatic  couplers  is  in  proper 
condition  and  the  couplers  are  properly 
connected  they  couple  by  impact  auto- 
matically, is  sufficient  to  sustain  a  finding 
that  one  or  both  couplers  did  not  measure 
up  to  the  standard  prescribed  by  the  safety 
appliance  acts  of  March  2,  1893  (27  Stat, 
at  L.  531,  chap.  196,  Comp.  Stat.  1913, 
§  8606),  and  March  2,  1903  (32  Stat,  at  L. 
943,  chap.  976,  Comp.  Stat.  1913,  §  8613), 
f}iss.,  "couplers  coupling  automatically  by 
impact,  and  which  can  be  uncoupled  with- 
out the  necessity  of  men  going  between  the 
ends  of  the  cars." 

[For   other  cases,    see   Brldence,   XII.   d,   in 
Digest  Sup.  Ct.  1908.1 

Master  and  servant  —  safety  appliances 
—  negligence  —  employers'  liability. 
4.  A  violation   of   the   Federal   safety 
appliance  acts  of  March  2,  1893  (27  Stat,  at 


liability  and  safety  appliance  acts,  it  could . 
rely  upon  the  common-law  defense  of  as- 1 
sumption  of  risk,  is  reviewable  in  the  Fed- 
eral  Supreme   Court.   Southern   R.   Co.   v. 
Crockett,  234  U.  S.  725,  68  L.  ed.  1564,  34 
Sup.  Ct.  Rep.  897. 

Whether  or  not  legislative  power  is  un- 
ooiistitutionally  delegated  to  the  American 
Railway  Association  and  the  Interstate 
Commerce  Commission  by  the  provision  of 
the  safety  appliance  act  of  March  2,  1893, 
§  .1,  that,  after  a  date  named,  only  cars  with 
drawbars  of  uniform  height  shall  be  used  in 
interstate  commerce,  and  that  the  standard 
shall  be  fixed  by  the  association  and  declared 
by  the  Commission,  is  a  Federal  question 
within  the  meaning  of  U.  S.  Rev.  Stat.  § 
TOO,  governing  writs  of  error  from  the  Su- 
preme Court  of  the  United  States  to  state 
courts.  St.  Louis,  I.  M.  &  S.  R.  Co.  ▼. 
Taylor,  supra. 

A  state  court,  by  deciding  that  a  railway 
employee  who  was  killed  while  attempting 
to  make  a  coupling  with  a  car  not  equipped 
with  an  automatic  coupler,  as  required  by 
the  act  of  March  2,  1893,  §  2,  was,  as  a 
matter  of  law,  guilty  of  contributory  negli- 
gence in  lifting  his  head  a  litle  too  high 
after  he  had  been  warned  of  the  danger, 
cannot  defeat  the  appellate  jurisdiction  of 
the  Federal  Supreme  Court,  where  §  8  of 
that  statute  was  specially  invoked  as  ex- 
cluding the  defense  of  assumption  of  risk. 
Schlemmer  v.  Buffalo,  R.  &  P.  R.  Co.  205 
U.  S.  1,  51  L.  ed.  681,  27  Sup.  Ct.  Rep.  407. 

But  no  substantial  Federal  question 
which  will  sustain  a  writ  of  error  from 
tlie  Federal  Supreme  Ourt  to  a  state  court 
is  presented  by  a  contention  that  a  state 
safety  appliance  act,  if  applicable^  is  repug- 
nant to  the  due  process  of  law  clause  of 
U.  S.  Const.,  14th  Amend.,  because  it  is  con- 
strued by  the  state  court  to  exact  a  usual 
and  ordinary  degree  of  care  in  the  appli- 
ances to  which  it  relates.  Erie  R.  Co.  v. 
Solomon,  237  U.  S.  427,  59  L.  ed.  1033,  36 
Sup.  Ct.  Rep.  648. 

And  .the  contention  that  error,  to  the 
prejudice  of  an  interstate  railwav  carrier 
concerning  the  Federal  safety  appliance  act» 
if  that  act  applied,  was  committed  by  in- 
60  Ij.  ed. 


structing  the  jury  that  it  exacted  a  usual 
and  ordinary  degree  of  care  in  the  appli- 
ances to  which  it  relates,  is  too  clearly 
lacking  in  merit  to  serve  as  the  basis  of  a 
writ  of  error  from  the  Federal  Supreme 
Court  to  a  state  court.    Ibid. 

Review. 

The  question  whether  the  right  to  re- 
cover for  the  negligent  killing  of  a  rail- 
way brakeman,  Imis^  upon  the  company's 
noncompliance  with  the  safety  appliance 
acts  of  March  2,  1893,  and  March,  2,  1903, 
was  barred  as  a  matter  of  law  because 
the  brakeman,  after  unsuccessfully  trying  to 
work  an  automatic  coupler,  had  attempted 
to  effect  the  uncoupling  by  hand,  contrary 
to  a  rule  of  the  railway  company  forbidding 
him  to  step  between  moving  cars,  is  not 
Federal  in  character,  but  is  a  question  out- 
side the  Federal  statutes,  which  cannot  be 
considered  by  the  Federal  Supreme  Court 
on  a  writ  of  error  sued  out  under  the  Judi- 
cial Code,  §  237,  36  Stat,  at  L.  1214,  chap. 
231,  Comp.  Stat.  1913,  §  1214,  to  a  state 
court.  Minneapolis,  St.  P.  k  S.  Ste.  M.  R. 
Co.  V.  Popplar,  237  U.  S.  369,  69  L.  ed.  1000, 
35  Sup.  Ct.  Rep.  609. 

A  ruling  that  the  evidence  is  insufficient 
to  sustain  a  recovery  under  a  petition  which, 
while  founded  on  the  safety-appliance  act  of 
March  2,  1893,  fails  to  state  a  cause  of  ac- 
tion under  that  statute,  but  at  most  shows 
a  riffht  of  recovery  at  common  law,  does  not 
involve  a  Federal  question  open  to  examina- 
tion in  the  Federal  Supreme  Court  on  a  writ 
of  error  to  a  state  court.  Brinkmeier  v. 
Missouri  P.  R.  Co.  224  U.  8.  268,  56  L.  ed. 
758,   32   Sup.   Ct.   Rep.   412. 

The  refusal  to  allow  an  amendment  to  the 
petition  in  an  action  founded  on  the  original 
safety-appliance  act  of  March  2,  1893,  after 
the  cause  had  twice  been  tried  without  de- 
cisive result,  and  the  period  of  limitation 
had  expired,  so  as  to  allege  that  the  cars 
were  used  in  moving  interstate  traffic,  in- 
volves only  a  question  of  pleading  and  prac- 
tice under  the  local  law,  which  is  not  re- 
viewable in  the  Federal  Supreme  Court  on 
writ  of  error  to  &  state  court.    Ibid. 

1111 


SUPREME  COURT  OF  THE  UNITED  STATES.  Ocr.  Tknc, 


L.  581,  chap.  196,  Comp.  Stat.  1913,  §  8605), 
and  March  2,  1903  (32  Stat,  at  L.  943,  chap. 
976,  Ck>mp.  SUt.  1913,  §  8613),  by  an  inter 


ployert'  liabilitj  act,  it  must  first  be  estab- 
lished that  that  section  of  the  safety  appli- 
ance act  has  been  violated  by  the  carrier 


state  carrier,  is  in  itself  negligence  render-  ^^    showing  that  its  cars  were  not  equipped 

ing  the  railway  company  liable  for  the  re-  *:...     ^^„J:i«,„    ^,„.u««    «„4.««.«*:«^n„  k« 

suiting  injury  to  an  employee  under  the  em-  ^'^^  ^  ^i  .1  ?^.J^  ^    automaticaUy  hj 

ployers'  liability  act  of  April  22,  1908   (35  impact,  and  that  they  eould  not  be  coupled 

But.  at  L.  66,  chap.  149,  Comp.  Stat.  1913,  and  uncoupled  without  the  necessity  of  men 

§  8657),  as  being  the  result  of  a  "defect  or  going  between  the  ends  of  the  cars,  the  test 

insufficiency,  due  to  its  negligence,  in   its  being    whether    the    person    operating   tlie 

cars,  engines,  appliances,"  etc.,  within  the  coupler  is  required,  by  reason  of  its  de- 

meaninff  of  the  latter  act.                       •  fcctivo  condition,  to  go  between  the  ends 

[For  other  cases,  see  Master  and  Senrant,  II.  ,  ,,  ^  ^^.^  .        *^^^  .Jf  ^49^4.  .  ^„«.i:„„  ^ 

a,  in  Digest  Sup.  CL  1908.1  of  the  cars  m  order  to  effect  a  coupling  or 

uncoupling. 
[No.  811.]  Chicago,  M.  &  St  P.  R.  Cb.  v.  Voelker, 

supra;   Wheeling  Terminal  Co.  ▼.  Russell, 
Submitted  April  14,  1916.     Decided  June    126  C.  C.  A.  519,  209  Fad,  795;  Johnson  ▼. 

5,  1916.  Southern  P.  Co.  196  U.  S.  1,  49  L.  ed.  363, 

25  Sup.  Ct.  Rep.   158,  17  Am.  Neg.  Rep. 

T  N  ERROR  to  the  Court  of  Civil  Appeals  l]^}  ^l^ff?'  J^'t  ^'  ?*  ?^'l'  J^'t^ 
J    for  the  Fourth   Supreme  Judicial  Dis-    ^*^«' ^20  U.  a  559,  55  U  ed.  582^ 

trict  of  the  State  of  Texas  to  review  a  judg-  ^t-  gP"  ^^^'-J^VL  ^^  luf  5 
ment  which  affirmed  a  judgment  of  the  ^;^220  U  S;^8^f«  ^^  «^^^'  LnW^= 
District  Court  of  Bexar  County,  in  that  ^^'^^^l  P.T'^?'  ^  ^J^Fa^^ 
sUte,  in  favor  of  plaintiff  in  an  action  un-  ^f-^'^'^y  *  Safety  Appliance  Acts,  1909  ed. 
der  the  Federal  safety  appliance  and  em-   »  72a.  ,     ,   ^      ^  -     .     .    .     xt. 

ployers*  liability  acts.    Affirmed.  The  issues   raised  by  defendant   m  the 

See  same  case  below,  —  Tex.  Civ.  App.  -,  *"»!  c^^^t  m  iU  specml  answer,  stricken 
166  S   W   24  ^^^  ^y  ^®  court,  whether  or  not  its  cars 

The  facts  are  stated  in  the  opinion.  ^«''«  properly  equipped  with  couplers  coup- 

ling automatically  by  impact,  and  whether 
Messrs.    Samuel    Herrick,    Rnfns    S.    ^^y  could  be  coupled  and  uncoupled  with- 
Day,  and  Robert  J.  Boyle  submitted  the   ^^^  the  necessity  of  plaintiff  going  between 
cause   for   plaintiff  in   error.     Mr.   A.    B.    t^^  ^nds  of  the  engine  and  car,  should  have 
Storey  was  on  the  brief:  been  submitted  to  the  jury  under  all  the 

There  is  no  provision  in  the  safety  appli-  evidence  admissible  by  both  plaintiff  and 
ance  acts  prohibiting  or  precluding  adjust-  defendant,  it  being  necessary  to  establish 
ment  of  the  coupler  prior  to  or  at  the  time  the  truth  or  falsity  of  the  facta  claimed  by 
of  impact,  or  providing  directly  or  indi-  defendant  in  order  to  ascertain  whether  or 
rectly  that  a  drawbar  out  of  alignment  shall  not  the  Federal  statute  had  been  violated, 
be  regarded  as  a  defect  in  the  automatic  Texas  &  P.  R,  Co.  v.  Harvey,  228  U.  S. 
coupler  or  equipment,  nor  is  the  fact  that  319^  57  l.  ed.  852,  33  Sup.  Ct.  Rep.  518; 
the  drawbar  is  out  of  alignment  evidence  Richmond  &  D.  R.  Co.  v.  Powers,  149  U.  S. 
per  s«  of  such  defect,  or  that  the  cars  are  43^  37  L.  ed.  642,  13  Sup.  Ct  Rep.  748,  7 
not  equipped  with  couplers  coupling  auto-  Am.  Neg.  Gas.  369;  Chicago,  R.  I.  A  P.  K. 
matically  by  impact,  or  that  they  cannot  Co.  v.  Brown,  229  U.  S.  317,  57  L.  ed.  1204, 
be  coupled  or  uncoupled  without  the  neces-  33  Sup.  Ct.  Rep.  840,  3  N.  C.  C.  A.  826; 
sity  of  men  going  between  the  ends  of  the  United  Stotes  v.  Denver  &  R.  G.  R.  Co.  90 
cars.  C.  C.  A.  329,  163  Fed.  519;  Union  P.  R.  Go. 

Morris  v.  St.  Louis  S.  W.  R.  Co.  —  Tex.  v.  Brady,  88  C.  C.  A.  579,  161  Fed.  719; 
Oiv.  App.  — ,  158  S.  W.  1055;  Chicago,  M.  Suttle  v.  Choctaw,  0.  &  G.  R.  Co.  75  C.  C. 
&  P.  S.  R.  Co.  V.  United  States,  116  C.  C.  A. ,  A.  470,  144  Fed.  668;   Parker  ▼.  Atlantic 

City  R.  Co.  87  N.  J.  L.  148,  93  AtL  574. 

The  safety  appliance  act  which  makes  it 
the  duty  of  common  carriers  to  equip  their 
cars  with  couplers  which  can  be  uncoupled 
without  the  necessity  of  men  going  between 
the  ends  of  the  cars  imposes  upon  the  em- 
ployees the  correlative  duty  of  using  these 
couplers  when  furnished,  and  of  refraining 
from  unnecessarily  going  between  the  ends 
of  the  cars  to  uncouple  them;  and  failure 
of  a  servant  to  discharge  this  duty,  which 
directly  contributes  to  hia  injury,  is  fatal 
to  an  action  lor  danui|pea  on  aeeount  of  it 
1//J  141  V.  8. 


444,  196  Fed.  882;  Willett  v.  Illinois  C.  R. 
Co.  122  Minn.  513,  142  N.  W.  883,  4  N.  C. 
C.  A.  479;  Chicago,  M.  &  St.  P.  R.  Co.  v. 
Voelker,  70  L.R.A.  264,  65  0.  C.  A.  226,  129 
Fed.  526. 

In  order  for  the  plaintiff  to  recover  in  an 
action  for  damages  for  personal  injuries  re- 
ceived by  reason  of  the  negligence  of  a 
common  carrier,  under  §  2  of  the  safety  ap- 
pliance act,  as  amended  by  the  act  of  March 
2,  1903,  and  to  eliminate  the  defense  by 
the  carrier  of  contributory  negligence  on 
the  part  of  plaintiff  under  §  3  of  the  em- 


1015. 


SAN  ANTONIO  &  A.  P.  R.  CO.  ▼.  WAGNEB. 


Gilbert  r.  Burlington,  C.  R.  ft  N.  R.  Co. 
63  0.  C.  A.  27,  128  Fed.  629;  Union  P.  R. 
Co.  V.  Brady,  88  0.  C.  A.  679,  161  Fed.  719; 
Suttle  y.  Choctaw,  0.  &  G.  R.  Co.  75  C.  C.  A. 
470,  144  Fed.  668;  Morrii  v.  Diiluth,  8.  8. 
&  A.  R,  Co.  47  C.  C.  A.  661,  108  Fed.  747; 
Chicago,  B.  &  Q.  R.  Co.  ▼.  United  States, 
127  O.  C.  A.  438,  211  Fed.  12. 

In  the  absence  of  any  violation  of  the 
Federal  saftey  appliance  act,  contributory 
negligence  it '  a  legitimate  defense  by  a 
common  carrier  in  an  action  to  recover  dam- 
ages for  personal  injuries,  in  order  that  the 
same  may  be  diminished  by  the  jury  in  pro- 
portion to  the  amount  of  negligence  attrib- 
utable to  the  person  injured,  the  defendant 
in  the  trial  court  in  the  case  being  denied 
the  right  by  the  ruling  of  the  court  to  plead 
this  defense,  or  introduce  its  evidoice  to 
sustain  such  plea. 

Southern  R.  Co.  v.  Snyder,  124  C.  C.  A. 
60,  205  Fed.  868;  Schlemmer  v.  Buffalo,  R. 
k  P.  R.  Co.  220  U.  8.  500,  55  L.  ed.  506, 
31  Sup.  Ct.  Rep.  561;  Lloyd  ▼.  Southern 
R.  Co.  166  N.  C.  24,  81  S.  E.  1003,  7  N.  C. 
C.  A.  520;  Delk  v.  St.  Louis  &  S.  F.  R.  Co. 
220  U.  S.  580,  55  L.  ed.  590,  31  Sup.  Ct. 
Rep.  617;  Second  Employers'  Liability 
Cases  (Mondou  v.  New  York,  N.  H.  k  H. 
R.  Oo.)  223  U.  S.  1,  56  L.  ed.  327,  38  L.R.A. 
(N.S.)  44,  32  Sup.  Ct  Rep.  160,  1  N.  C. 
C.  A.  875;  Ellis  v.  Louisville,  H.  &  St.  L. 
R.  Co.  155  Ky.  745,  160  S.  W.  512;  Cain 
V.  Southern  R,  Co.  199  Fed.  211;  Neil  v. 
Idalio  &  W.  N.  R.  Co.  22  Idaho,  74,  125 
Pacf  331 ;  Norfolk  &  W.  R.  Co.  v.  Earnest, 
220  U.  S.  114,  57  I.,  ed.  1006,  38  Sup.  Ct. 
Rep.  654,  Ann.  Cas.  101 4C,  172. 

If  a  correct  construction  of  §  2  of  the 
safety  appliance  act  imposes  upon  common 
carriers  the  absolute  duty  of  equipping 
their  engines  and  cars  with  couplers  coup- 
ling automatically  by  impact,  and  which 
can  be  coupled  and  uncoupled  without  the 
necessity  of  men  going  between  the  ends  of 
the  cars,  and  further  interprets  a  deflected 
drawbar  at  the  time  of  such  impact  to  be 
a  defect  or  insufficiency  in  fudi  coupler, 
then,  in  order  to  show  a  violation  of  the 
statute  by  the  carrier,  and  afford  an  em- 
ployee a  cause  of  action  under  the  employ- 
ers' liability  act,  it  must  be  proved  that  the 
misalignmmt  of  the  drawbar  at  the  time 
of  such  impact  was  due  to  the  negligence 
of  the  carrier,  before  he  will  be  entitled  to 
recover  damages  for  injuries  sustained. 

Seaboard  Air  Line  R.  Co.  v.  Horton,  233 
U.  S.  402,  58  L.  ed.  1062,  34  Sup.  Ct.  Rep. 
635,  L.R.A.1015C,  1,  Ann.  Cas.  1915B,  475, 
8  N.  C.  C.  A.  834;  Grand  Trunk  Western 
R.  Co.  V.  Lindsay,  120  C.  C.  A.  166,  201 
Fed.  837,  233  U.  S.  42,  58  L.  ed.  838,  34 
Sup.  Ct.  Rep.  581,  Ann.  Cas.  1914C,  168; 
60  Ij.  ed. 


Pennsylvania  Co.  v.  Cole,  131  0.  C.  A.  244, 
214  Fed.   048. 

The  coupler  must  be  discovered  in  a  de- 
fective and  inoperative  condition  before  the 
statute  would  be  violated. 

The  court  of  civil  appeals  having  held 
that  the  automatic  coupler  in  use  by  plain- 
tiff in  error  at  the  time  of  the  accident 
should  have  been  operative  for  each  car  as 
to  the  device  of  that  particular  car,  in 
order  that  an  employee  would  not  have  to 
go  to  another  car  to  make  the  coupling  of 
the  car  in  question,  such  construction  of 
the  Federal  safety  appliance  act  imposes 
upon  plaintiff  in  error  and  upon  interstate 
commerce  a  double  burden  in  that  such  in- 
terpretation, if  sustained  by  this  court,  will 
require  two  employees,  one  at  each  car,  in 
order  to  make  the  coupling  now  effected  by 
one,  and  would  thereby  increase  twofold  not 
only  the  operating  expense  of  plaintiff  in 
error,  but  of  every  carrier  by  railroad 
throughout  the  United  States. 

Wabash  R.  Co.  v.  United  States,  03  C.  C. 
A.  393,  168  Fed.  1;  United  States  v.  Mont- 
pelier  &  W.  River  R.  Co.  175  Fed.  874; 
United  States  v.  Philadelphia  &  R.  R.  Co. 
162  Fed.  403. 

In  refusing  to  admit  in  evidence  testi- 
mony showing  that  adjustment  at  times 
was  necessary  before  the  coupler  would 
couple  automatically  by  impact,  the  trial 
court  thereby  eliminated  all  expert  testi- 
mony as  to  equipment  and  operation  of  the 
hand  lever  at  the  side  of  the  car,  and,  in 
holding  that  a  deflected  drawbar  was  a 
defect  and  insufficiency  in  the  coupler  of 
the  engine  under  the  safety  appliance  act, 
and  due  to  the  negligence  of  defendant, 
without  any  evidence  to  support  it,  the 
court  denied  to  defendant  the  defense  of 
contributory  negligence  on  the  part  of 
plaintiff  in  the  trial  court,  permissible 
under  the  employers'  liability  act  where 
there  is  no  defect  or  insufficiency  due  to 
the  negligence  of  the  carrier,  such  court 
holding  as  a  matter  of  law  that  plaintiff 
in  error  had  violated  the  safety  appliance 
act,  and  precluded  it  from  proving  under 
its  special  answer,  the  equipment  of  the 
car  and  couplers  with  a  hand  lever,  and 
the  negligence  of  the  plaintiff  in  failing  to 
use  the  same  in  preparing  the  couplers  for 
coupling  automatically  by  impact,  which 
failure  was  negligence,  and  proximately 
caused  or  contributed  to  cause  the  injuries 
complained  of. 

United  States  r.  Montpelier  ft  W.  River 
R.  Co.  supra;  Wheeling  Terminal  R.  Co.  v. 
Russell,  126  C.  C.  A.  519,  209  Fed.  795; 
Johnson  v.  Southern  P.  Co.  196  U.  S.  1, 
49  L.  ed.  363,  25  Sup.  Ot  Rep.  158,  17  Am. 
Neg.  Rep.  412;  Chicago,  B.  &  Q.  R.  Co.  v. 
United  SUtet,  220  U.  S.  559,  56  L.  ed.  582, 


477,  478 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cor.  Tbm, 


81  Sap.  Ct.  Rep.  .612;  Delk  y.  St.  Louis  ft 
S.  F.  R.  Co.  220  U.  S.  680,  55  L.  ed.  500,  81 
Sup.  Ct  Rep.  617 ;  Long  v.  Southern  R.  Cb. 
155  Ky.  286,  159  B.  W.  779;  Helm  ▼.  Cin- 
cinnati, N.  0.  &  T.  P.  R.  Co.  156  Ky.  240, 
160  S.  W.  945;  BUii  ▼.  LouisviUe,  H.  ft 
St.  L.  R.  Co.  155  Ky.  745,  160  S.  W.  512; 
Devine  v.  Chicago  ft  C.  R.  R.  Co.  259  III 
449,  102  N.  E.  803;  Grand  Trunk  Western 
R.  Co.  ▼.  Lindsay,  120  C.  a  A.  166,  201 
Fed.  887,  283  U.  S.  42,  58  L.  ed.  838,  84 
Sup.  Ct.  Rep.  581,  Ann.  Gas.  1914C,  168. 

In  order  to  hold  plaintiff  in  error  liable 
for  violation  of  the  safety  appliance-em- 
ployers' liability  acts,  it  must  be  shown 
that  the  employee's  injuries  resulted  in 
whole  or  in  part  by  reason  of  some  defect 
or  insufficiency  in  its  couplers,  due  to  its 
negligence,  on  the  car  or  engine  in  question; 
and  it  must  further  be  shown  that  a  reason- 
able effort  was  made  to  operate  the  coupler 
by  hand  lever,  and  the  same  failed  to  work 
by  that  means,  before  such  employee  would 
be  justified  in  going  between  the  ends  of  the 
cars. 

Nichols  T.  Chesapeake  ft  O.  R.  Co.  115 
C.  C.  A.  601,  105  Fed.  918;  Chicago,  R.  L  ft 
P.  R.  Co.  V.  Brown,  229  U.  S.  817,  57  L.  ed. 
1204,  33  Sup.  Ct.  Rep.  840, 3  N.  C.  C.  A.  826; 
Burho  y.  Minneapolis  ft  St  L.  R.  Go.  121 
Minn.  326,  141  N.  W.  300;  MorHs  r.  St. 
Louis  S.  W.  R,  Co.  —  Ter.  Civ.  App.  — , 
158  S.  W.  1055;  United  States  v.  LouisviUe 
ft  N.  R.  R.  Co.  156  Fed.  193. 

Under  the  rules  of  practice  and  the  de- 
cisions of  the  Texas  courts  when  either  a 
foreign  statute  or  contributory  negligence 
is  relied  on  as  a  defense,  the  same  must  be 
specially  pleaded  and  proved,  unless  it  ap- 
pears from  the  pleading  of  plaintiff. 

Foreign  statute:  Blethen  v.  Bonner, 
93  Tex.  143,  53  S.  W.  1016;  QiU  v.  Ever- 
man,  94  Tex.  209,  59  8.  W.  531;  Interna- 
tional ft  G.  N.  R.  Co.  V.  Moody,  71  Tex.  614, 
9  S.  W.  465;  Porcbeler  v.  Bronson,  50  Tex. 
555;  Armendias  v.  De  La  Sema,  40  Tex. 
304;   Anderson  v.  Anderson,  23  Tex.  641. 

Contributory  negligence:  Canadian  P.  R. 
Co.  V.  Clark,  20  C.  C.  A.  447,  88  U.  S.  App. 
573,  73  Fed.  76;  New  York,  S.  ft  W.  R. 
C6.  V.  Thierer,  137  C.  0.  A.  295,  221  Fed. 
571;  Missouri  P.  R.  Co.  v.  Watson,  72  Tex. 
631,  10  S.  W.  731,  6  Am.  Neg.  Cas.  574; 
Missouri  P.  R.  Co.  v.  Porter,  73  Tex.  304, 
11  S.  W.  324;  San  Antonio  ft  A.'  P.  R.  Co. 
T.  Bennett,  76  Tex.  151,  13  S.  W.  319; 
Brown  v.  Sullivan,  71  Tex.  470,  10  S.  W. 
288;  Gulf,  C.  ft  S.  F.  R.  Co.  v.  Shieder,  88 
Tex.  152,  28  L.  R.  A.  588,  80  S.  W.  902. 

Hie  construction  placed  upon  the  prao- 
tioe  and  procedure  acts  by  the  highest  oourt 
of  a  state,  and  as  to  the  sufficiency  of  the 
pleadings,  is  binding  upon  the  Federal 
courts. 
1114 


Iowa  C.  R.  Co.  V.  Iowa,  160  U.  8.  889,  40 
L.  ed.  467,  16  Sup.  Ct.  Rep.  844;  Halferty  v. 
Wilmering,  112  U.  8.  718,  28  L.  ed.  858,  5 
Sup.  Ot  Rep.  864;  Grand  Ri^ids  ft  L  R. 
Co.  V.  Butler,  159  U.  S.  87,  40  L.  ed.  85,  15 
Sup.  Ot  Rep.  991. 

llie  diarge  o<  the  court,  sustained  on 
appeal,  whieh  omitted  to  instruct  the  Jury 
as  to  the  law  of  ne^^igenoe  or  contributory 
negligence,  was  an  assumption  by  the  oourt 
that  defendant  had  violated  the  safety  ap- 
l^ianoe  aict,  in  whieh  event  contributory 
negligence  was  not  a  bar  to  plaintiff's  ri|^ 
to  recover,  and  logicaUy  followed  in  order 
and  sequence  the  elimination  of  defendant's 
special  exceptions  and  special  defenses,  and 
the  exclusion  of  aU  evidence  as  to  adjust- 
ment of  the  coiqilers  prior  to  the  impact, 
and  sustained  the  allegation  of  plaintiff, 
without  evidence  to  support  it,  that  it  was 
necessary  for  him  to  go  between  the  ends  of 
the  cars  to  effect  a  coupling. 

Grand  Trunk  Western  R.  Co.  v.  Lindsay, 
283  U.  S.  42,  58  L.  ed.  838,  34  Sup.  Ct  Rep. 
581,  Ann.  Cas.  1914C,  168;  Seaboard  Air 
Line  R.  Co.  v.  Horton,  233  U.  8.  492,  58 
L.  ed.  1062,  L.R.A.1915C,  1,  34  Sup.  Ct  Rep. 
685,  Ann.  Cas.  1915B,  475,  8  N.  a  a  A. 
884. 

Messrs.  Perry  J.  Lewis  and  H.  O.  Gart- 
er submitted  the  cause  for  defendant  in 
error.    Mr.  John  Sehom  was  on  the  brief. 

Mr.  Justice  Pitney  delivered  the  opinion 
of  the  court: 

The  judgment  that  is  brought  undef  re- 
view by  this  writ  of  error  is  the  outcome 
of  an  action  begun  in  the  district  oourt  of 
Bexar  county,  Texas,  by  defendant  in  error 
against  plaintiff  in  error,  resulting  in  a 
Judgment  in  his  favor.  This  was  affirmed 
by  the  court  of  dvil  appeals,  a  r^earing 
was  denied  (166  S.  W.  24,  28),  and  oi^ 
writ  of  error  is  directed  to  that  oourt  be- 
cause the  supreme  court  of  Texas  refused 
to  review  the  judgment 

We  shall  describe  the  parties  according 
to  their  attitude  in  the  trial  court  Plain- 
tilTs  petition  alleged  that  on  October  1% 
1911,  he  was  employed  as  a  brakemaa  by 
defendant,  a  common  carrier  by  railroad 
engaged  in  both  interstate  and  intrastate 
eommeree;  that  defendant  had  in  use  in 
both  kinds  of  commerce  a  certain  engine  and 
a  [478]  certain  car,  and  it  became  plaintiff's 
duty  to  couple  them  together;  that  the 
couplers  would  not  couple  automatically  by 
impact,  as  required  by  law,  ''and  for  the 
purpose  of  making  said  coupling  it  be- 
came necessary  for  the  plaintiff  to  stand 
upon  the  footboard  of  said  engine,  between 
said  engine  and  car,  and  to  shove  the 
knuokle  of  the  coupler  on  said  engine  so 
as  to  bring  it  into  proper  position  to  make 

141  U.  S. . 


1915. 


SAN  ANTONIO  ft  A.  P.  R.  CO.  ▼•  WAGN£R. 


478--480 


the  coupling  as  aforesaid;"  that  plaintiif 
placed  his  left  foot  against  the  knuckle  of 
the  coupler  of  the  engine  for  the  purpose 
•f  pushing  it  into  position,  when  he  lost  his 
bakince,  slipped  and  fell,  and  his  left  foot 
was  caught  between  the  couplers  and 
crushed.  Defendant  interposed  a  general 
denial  and  certain  special  defenses,  which 
latter  were  struck  out  on  demurrer.  They 
set  up  that  defendant  was  a  common  car- 
rier engaged  in  interstate  conunerce,  and 
invoked  the  provisions  of  the  Federal  safety 
appliance  act  of  March  2,  1893  (chap.  196, 
27  Stat,  at  L.  531,  Comp.  8Ut.  1913,  § 
^05),  and  the  amendment  of  March  2, 
1903  (chap.  976,  32  Stat,  at  L.  943,  Comp. 
Stat.  1913,  §  8613),  averring  that  all  coup- 
lers attached  to  railroad  engines,  tenders, 
or  cars  must  have  sufficient  lateral  motion 
to  permit  trains  to  round  the  curves,  and 
must  be  provided  with  adjustable  knuckles 
which  can  be  opened  and  closed,  and  such 
couplers  must  be  adjusted  at  times  in  order 
that  they  may  couple  automatically  by  im- 
pact, and  that  there  is  no  kind  of  automatic 
coupler  constructed  or  that  can  be  con- 
structed which  will  couple  automatically  at 
all  times  without  previous  adjustment,  be- 
cause of  the  lateral  play  necessary  to  en- 
able coupled  cars  to  round  curves;  that  the 
engine  and  car  upon  which  plaintiff  was  em- 
ployed at  the  time  of  his  injury  were  en- 
gaged in  interstate  commerce,  and  were 
equipped  with  automatic  couplers  which 
would  couple  automatically  by  impact  as 
required  by  the  acts  of  Congress,  but  an 
adjustment  was  necessary  for  this  purpose, 
and  could  have  been  made  by  the  plaintiff 
going,  between  the  cars  while  they  were 
standing,  but  without  going  between  the  ends 
of  the  cars  while  in  motion,  or  [479]  between 
a  moving  engine  and  cars,  and  without 
kicking  the  coupling  or  in  any  manner  en- 
dangering his  own  personal  safety;  with 
more  to  the  same  effect. 

At  the  trial  the  evidence  tended  to  show 
that  plaintiff  was  engaged  in  switching  at 
one  of  defendant's  yards,  and  was  riding 
upon  the  footboard  at  the  rear  of  the  en- 
gine in  order  to  make  a  coupling  between 
it  and  a  box  car;  that  at  the  first  impact — 
to  use  plaintiff's  words — "the  coupling 
wouldn't  make;  I  coupled  up  against  them 
but  it  wouldn't  make."  He  then  signaled 
the  engineer  to  draw  ahead,  and  this  having 
been  done,  he  adjusted  the  knuckle  and  pin 
upon  the  box  car,  and  '^  gave  the  engineer 
a  back-up  signal  to  couple  In  again,  and 
I  got  back  on  the  footboard  of  the  engine; 
when  I  got  on  the  footboard  I  looked  down 
and  I  seen  the  drawhead  on  the  engine  was 
shifted  way  over  to  my  side,  and  I  reached 
up  with  my  left  foot  to  shift  the  drawhead 
over  so  it  would  couple^  and  my  right  foot 
60  Ij«  ed. 


slipp^  on  the  wet  footboard;"  as  a  result 
of  which  his  left  foot  was  caught  between 
the  drawheads  and  crushed.  He  testified 
that  at  the  first  impact  the  drawhead  on 
the  engine  was  in  line  with  that  on  the 
box  car,  and  that  the  only  thing  that  pre- 
vented the  coupling  at  this  time  was  the 
failure  of  the  pin  on  the  box  car  to  drop. 
And  further:  *'When  the  coupling  appara- 
tus of  these  automatic  couplers  are  in 
proper  condition  and  they  are  properly  con- 
nected, they  couple  by  impact  automatical- 
ly; ...  when  the  brakeman  couples  a 
car,  he  pulls  a  lever  on  the  outside  of  the 
car ;  that  opens  the  knuckle — ^that  raises  the 
pin  and  opens  the  coupler  up;  then  all  ha 
has  to  do  is  to  give  a  signal  and  they  back 
right  up.  He  has  nothing  to  do  with  refer- 
ence to  fixing  the  knuckle,  or  anything  of 
that  sort."  He  testified  in  effect  that  the 
coupler  was  out  of  order.  The  court  of 
civil  appeals  held  that,  so  far  as  this  was 
opinion  evidence,  it  was  admissible  as  the 
opinion  of  a  qualified  expert,  plaintiff  hav- 
ing been  employed  by  defendant  as  a  brake- 
man  for  eight  years,  and  being  acquainted 
with  the  [480J  operation  of  couplers.  A  wit- 
ness called  by  defendant  testified:  "These 
couplers  are  made  to  couple  automatically 
by  impact, — ^they  are  supposed  to  be  in  such 
condition  as  that,  so  when  they  come  to- 
gether they  will  couple  without  the  neces- 
sity of  men  going  in  between  the  cars  to 
couple  or  uncouple,  and  should  be  in  that 
condition.  If  they  do  not  couple  with  the 
automatic  impact,  they  are  not  ^in  proper 
condition." 

The  trial  court  instructed  the  jury  that 
if  the  locomotive  and  car  in  question  were 
not  equipped  with  couplers  coupling  auto* 
matically  by  impact  without  the  necessity 
of  plaintiff  going  between  the  ends  of  the 
cars,  and  by  reason  of  this  and  as  a  proxi- 
mate result  of  it  plaintiff  received  his  in- 
juries, the  verdict  should  be  in  his  favor; 
otherwise  in  favor  of  defendant;  and  that 
the  burden  of  proof  was  upon  plaintiff  to 
establish  his  case  by  a  preponderance  of  the 
evidence. 

The  court  of  civil  appeals  treated  the  case 
as  coming  within  the  Federal  employers' 
liability  act  of  April  22,  1908  (chap.  149, 
35  SUt.  at  L.  65,  Comp.  Stat.  1913,  §  S667 ) , 
and  the  assignments  of  error  in  this  court 
and  the  argument  thereon  proceed  upon  that 
basis.  We  shall  decide  the  case  upon  that 
assumption,  although  we  find  nothing  in 
the  record  to  show  that,  in  fact,  plaintiff 
was  employed  in  interstate  commerce  at  the 
time  he  was  injured.  We  are  asked  to  take 
notice  of  the  omission  of  pleading  and  proof 
of  the  fact  as  a  "plain  error,"  and  deal 
with  it,  although  not  assigned,  under  para- 
graph 4  of  our  Rule  21.    We  must  decline 


480-483 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


OOT.  Tbkic, 


to  do   thii,  principally   for  two   reasoiui: 

(a)  The  omission  may  have. been  due*  to  an 
oversight  that  would  have  been  corrected  if 
the  point  had  been  properly  raised  by  the 
present  plaintiff  in  error  in  the  state  courts. 

(b)  Since  the  safety  appliance  acts  are  in 
any  event  applicable,— defendant's  railroad 
being  admittedly  a  highway  of  interstate 
commerce, — whether  plaintiff  was  employed 
in  such  commerce  or  not  (Texas  &  P.  R.  Co. 
y.  Rigsby,  241  U.  S.  33,  42,  ante,  874,  878,  36 
Sup.  Ct.  Rep.  482),  [481]  the  only  material- 
ity of  the  question  whether  the  employers' 
liability  act  also  applies  is  in  its  bearing  up- 
on the  defense  of  contributory  negligence; 
the  former  act  leaving  that  defense  imtouched 
(Schlemmer  ▼.  Buffalo,  R.  &  P.  R.  Co.  220 
U.  S.  590,  506,  55  L.  ed.  506,  600,  31  Sup. 
Ct.  Rep.  561),  while  the  latter  (§  3,  35 
Stat,  at  L.  66,  Comp.  Stat.  1913,  §  8659) 
abolishes  it  in  any  case  where  the  violation 
by  the  carrier  of  a  statute  enacted  for  the 
safety  of  employees  may  contribute  to  the 
injury  or  death  of  an  employee,  and  in 
other  cases  limits  its  effect  to  the  diminu- 
tion of  the  damages.  Now,  an  examination 
of  the  record  discloses  that  defendant  at  the 
trial  raised  no  question  of  contributory 
negligence.  Such  negligence  was  averred  in 
the  special  defenses  that  were  struck  out, 
but  not  as  constituting  a  defense  against 
a  violation  of  the  safety  appliance  acts;  and 
the  special  defenses  contained  an  allegation 
to  the  effect  that,  at  the  time  of  his  injury, 
plaintiff  was  engaged  in  interstate  com- 
merce. In  this  state  of  the  record,  we  do 
not  deem  it  proper  to  consider  the  omission 
to  plead  or  prove  that  plaintiff's  injury  oc- 
curred in  interstate  commerce,  as  a  ground 
for  reversing  the  judgment,  it  not  having 
been  made  the  basis  of  any  assignment  of 
error. 

In  the  court  of  civil  appeals,  as  in  this 
court,  error  was  assigned  upon  the  action 
of  the  trial  court  in  striking  out  the  special 
defenses.  The  appellate  court  held,  how- 
ever, that,  under  the  general  denial,  defend- 
ant was  at  liberty  to  show  all  that  had  been 
averred  in  the  special  defenses  respecting 
the  couplers,  and  that  it  was  permitted  to 
prove  all  that  it  offered  upon  that  subject. 
It  is  insisted  here,  and  the  insistence  is 
many  times  repeated,  that  the  trial  court 
refused  to  admit  in  evidence  testimony  of- 
fered to  show  that  all  automatic  couplers 
necessarily  require  adjustment  at  times  in 
order  that  they  may  operate  automatically 
upon  impact,  and  that  the  adjustment  is 
accomplished  by  means  of  hand  levers  fitted 
to  the  cars  and  operated  by  the  trainmen 
without  going  between  the  cars;  the  object 
being  to  show  that  the  engine  and  car  [482] 
were  equipped  as  required  by  law,  and  that 
the  drawbtf  on  the  engine  was  thrown  out  of 
1116 


line  by  reason  of  plaintiff's  failure  to  use 
the  hand  lever  on  the  box  car  in  preparation 
for  the  first  impact.  It  is  insisted,  also, 
that  certain  testimony  with  reference  to 
adjusting  couplers  on  engines  and  cars, 
made  necessary  by  lateral  play,  in  order 
that  they  might  couple  automatically  by 
impact,  having  been  admitted,  was  after- 
wards excluded  as  inadmissible,  lliere  is 
nothing  in  the  certified  transcript  to  sus- 
tain either  of  these  contentions.  There  is 
an  assertion  to  the  same  effect  in  the  n.o- 
tion  for  rehearing  filed  in  the  court  of  civil 
appeals,  where  it  was  stated  that  'the  ex- 
clusion of  the  testimony  would  be  made  to 
appear  by  reference  to  the  stenographer's 
official  report  of  the  trial.  The  court  of 
civil  appeals  declared,  however,  that  no 
such  document  had  been  filed  or  would  be 
filed  in  that  court;  proceeding  thus:  'This 
cause  has  been  considered  on  the  agreed 
statement  of  facts,  approved  by  the  trial 
judge,  and  the  effect  of  such  statement  of 
facta  cannot  be  impaired  or  destroyed  by 
a  document  not  filed  among  the  papers,  and 
which  has  no  place  among  the  pi4>er8.  The 
statement  of  facts  bears  out  the  statement 
of  this  court  that  appellant  was  permitted 
to  introduce  all  the  testimony  it  desired 
on  the  subject  of  the  coupler  on  the  engine. 
The  record  fails  to  show  that  any  testimony 
offered  by  appellant  was  withdrawn  by  the 
court  from  the  jury." 

Eliminating,  therefore,  because  unsup- 
ported by  anything  in  the  record,  the  in- 
sistence that  appellant  was  deprived  of  the 
opportunity  of  presenting  at  the  trial  the 
matters  that  had  been  set  up  in  the  special 
defenses,  the  remaining  questions. are  few 
and  easily  disposed  of. 

There  was  sufficient  evidence  to  warrant 
the  jury  in  finding  that  the  coupler  upon 
the  box  car  or  that  upon  the  engine,  or  both, 
were  in  bad  repair,  and  that  for  this  reason 
they  did  not  measure  up  to  the  standard 
prescribed  by  the  act  of  March  2,  1893, 
for  such  equipment,  [483]  via.:  *'Coup- 
lers  coupling  automatically  by  impact,  and 
which  can  be  uncoupled  without  the  neces- 
sity of  men  going  between  the  ends  of  the 
cars."  This  standard  was,  by  the  1st  sec- 
tion of  the  1903  amendment,  made  to  apply 
"in  all  cases,  whether  or  not  the  couplers 
brought  together  are  of  the  same  kind, 
make,  or  type;"  and  was  extended  to  "all 
trains,  locomotives,  tenders,  cars,  and  simi- 
lar vdiicles  used  on  any  railroad  engaged 
in  interstate  commerce,  .  •  •  and  to  all 
other  locomotives,  tenders,  cars,  and  similar 
vehicles  used  in  connection  therewith,"  sub- 
ject to  an  exception  not  now  material.  As 
has  been  held  repeatedly,  this  amendment 
enlarged  the  scope  of  the  original  act  so 
as  to  embrace  all  locomotives,  cars,  and  simi- 

241  U.  8. 


1915. 


CHESAPEAKE  &  0.  R.  00.  v.  KELLY. 


483-485 


lar  vehicles  used  on  any  railway  that  is  a 
highway  of  interstate  commerce,  whether 
the  particular  vehicles  are  at  the  time  em- 
ployed in  interstate  commerce  or  not. 
Southern  R.  Oo.  v.  United  States,  222  U.  S. 
20,  26,  56  L.  ed.  72,  74,  32  Sup.  Ct.  Rep. 
2,  3  N.  0.  C.  A.  822;  Texas  &  P.  R.  Oo.  v. 
Rigsby,  241  U.  S.  33,  37,  ante,  874,  876,  36 
Sup.  Ot.  Rep.  482. 

'Ihat  the  act  requires  locomotives  to  be 
«quipped  with  automatic  couplers,  and  that 
its  protection  extends  to  men  when  coup- 
ling as  well  as  when  uncoupling  cars,  are 
points  set  at  rest  by  Johnson  v.  Southern 
P.  Co.  196  U.  8.  1,  15,  18,  49  L.  ed.  363, 
368,  369,  25  Sup.  Ct.  Rep.  158,  17  Am.  Neg. 
Rep.  412. 

It  is  insisted  that  neither  the  original 
act  nor  the  amendment  precludes  adjust- 
ment of  the  coupler  prior  to  or  at  the  time 
of  impact,  or  treats  a  drawbar  out  of  align- 
ment as  a  defect  in  the  automatic  coupler, 
or  as  evidence  that  the  cars  are  not  equipped 
with  couplers  measuring  up  to  the  statu- 
tory standard.  The  evidence  of  bad  repair 
in  the  automatic  equipment  was  not  con- 
fined to  the  fact  that  the  drawbar  on  the 
engine  was  out  of  line;  the  fact  that  the 
coupling  pin  on  the  box  car  failed  to  drop 
as  it  should  have  done  at  the  first  impact, 
and  required  manipulation  in  preparation 
for  the  second  impact,  together  with  the  fact 
that  the  drawbar  on  the  engine  was  so  far 
out  of  line  as  to  require  adjustment  in  prep- 
aration for  the  second  [484]  impact,,  and 
the  opinion  evidence,  being  sufficient  to  sus- 
tain a  finding  that  the  equipment  was  de- 
fective. The  jury  could  reasonably  find  that 
the  misalignment  of  the  drawbar  was  great- 
er than  required  to  permit  the  rounding  of 
curves,  or,  if  not,  that  an  adjusting  lever 
should  have  been  provided  upon  the  engine 
as  upon  the  car,  and  that  there  was  none 
upon  the  engine.  We  need  not  in  this  case 
determine,  what  was  conceded  in  Chicago, 
R.  I.  &  P.  R.  Co.  V.  Brown,  229  U.  S.  317, 
320,  57  L.  ed.  1204,  1205,  33  Sup.  Ct.  Rep. 
840,  3  N.  0.  0.  A.  826,  that  the  failure  of 
a  coupler  to  work  at  any  time  sustains  a 
charge  that  the  act  has  been  violated. 

It  is  argued  that  in  actions  based  upon 
the  employers'  liability  act  the  defendant 
cannot  be  held  liable  without  evidence  of 
negligence;  Seaboard  Air  Line  R.  Co.  v. 
Horton,  233  U.  S.  402,  501,  68  L.  ed.  1062, 
1068,  L.R.A.1915C,  1.  34  Sup.  Ct.  Rep.  635, 
Ann.  Cas.  1915B,  475,  8  N.  0.  C.  A.  834, 
^being  cited.  But  in  that  case,  as  the  opin- 
ion shows  (p.  507),  there  was  no  question 
of  a  violation  of  any  provision  of  the  safety 
appliance  act;  and  in  what  was  said  (p. 
501)  respecting  the  necessity  of  showing 
negligence,  reference  was  had  to  causes  of 
action  independent  of  that  act.  The  em- 
60  li.  ed. 


ployers'  liability  act,  as  its  4th  section  very 
clearly  shows,  recognizes  that  rights  of  ac- 
tion may  arise  out  of  the  violation  of  the 
safety  appliance  act.  As  was  stated  in 
Texas  &  P.  R.  Co.  ▼.  Rigsby,  241  U.  8.  33, 
39,  ante,  874,  877,  36  Sup.  Ct  Rep.  482, 
484, — "A  disregard  of  the  command  of  the 
statute  [safety  appliance  act]  is  a  wrongful 
act,  and  where  it  results  in  damage  to  one 
of  the  class  for  whose  especial  benefit  the 
statute  was  enacted,  the  right  to  recover  the 
damages  from  the  party  in  default  is  im- 
plied." If  this  act  is  violated,  the  question 
of  negligence  in  the  general  sense  of  want  of 
care  is  immaterial.  241  U.  S.  43,  and  casee 
there  cited.  But  the  two  statutes  are  im 
pari  materia,  and  where  the  employers'  lia- 
bility act  refers  to  "any  defect  or  insuffi- 
ciency, due  to  its  negligence,  in  its  cars,  en- 
gines, appliances,"  etc.,  it  clearly  is  the 
legislative  intent  to  treat  a  violation  of  the 
safety  appliance  act  as  "negligence," — what 
is  sometimes  called  negligence  per  se, 

[485]  In  various  forms  plaintiff  in  error 
raises  the  contention  that  it  was  plaintifTa 
improper  management  of  the  coupling  opera- 
tion that  was  the  proximate  cause  of  his 
injury.  But  any  misconduct  on  his  part 
was  no  more  than  contributory  negligence, 
which,  as  already  shown,  is,  by  the  employ- 
ers' liability  act,  excluded  from  considera- 
tion in  a  case  such  as  this. 

Judgment  affirmed. 


CHESAPEAKE  &  OniO  RAILWAY  COM- 
PANY, Plff.  in  Err., 

V. 

ADDIE     KELLY,     as     Administratrix    of 
Matt  Kelly,  Deceased. 

(See  S.  0.  Reporter's  ed.  485-494.) 

Jury  —  infringement  of  right  —  non- 
unanimous  verdict  —  action  under 
Federal  statute. 

1.  The  requirement  of  U.  S.  Const.,  7th 
Amend.,  that  trials  by  jury  be  according  to 
the  course  of  the  common  law,  i.  e.,  by  a 
unanimous  verdict,  does  not  control  the 
state  courts,  even  when  enforcing  rights  un- 
der a  Federal  statute  like  the  employers' 
liabilitv  act  of  April  22,  1908  (35  Stat,  at 
L.  65,  chap.  149,  Comp.  Stat.  1913,  §  8657), 
and  such  courts  may,  therefore,  give  effect, 
in   actions  under  that  statute,  to  a  local 

Note. — On  number  and  agreement  of 
jurors  necessary  to  constitute  a  valid  ver- 
dict— see  notes  to  State  v.  Bates,  43  L.R.A. 
33,  and  Silsby  v.  Foote,  14  L.  ed.  U.  S.  894. 

On  the  constitutionality,  application,  and 
effect  of  the  Federal  employers'  liability 
act — see  notes  to  Lamphere  v.  Oregon  R.  a 
Nav.  Co.  47  L.R.A.(N.S.)  38,  and  Seaboard 
Air  Line  R.  Co.  ▼.  Horton,  L.R.A.1915C,  47. 


SUPREME  COURT  OF  THE  UNITED  STATES.              Oct.  T^in, 

practice  permitting  a  leti  tlian  unanimoiu  peeunlaiy     adTantage     to     the     dcpeoSMit 

verdict.  widow  and  infant  children. 

""sVct-'l'sori  ■*  '"^-  '■  "■  '•  '"  """■  H«'""7    V-    Delo-'re    k    A.    TVleg.   * 

Damagea  -  lor  duth  -  tnlupe  beneAu  Teleph.  Co.  69  N.  J.  L.   335,  Sfi  Atl.  252; 

—  present  c»»h  value.  McCabe  y.  NamganBett  Electric  Lighting 

2.  Th«  pieient  cash  value  of  the  future  Co.  26  R.  I.  427,  69  Atl.  112;  Loniarilk  ft 

benefit*  of  wliicb  the  beneflciuiei  were  de-  N.  B.  Co.  t.  TrammFll,  93  AU.  3M,  9  So. 

prived   by   the   death,   making  adequate  »]■  870;   Benton  t.  North  Carolina  R.  Do.  122 

lowance,  according  to  the  circuinitencea,  for  n_  q^  1007    30  g,  j;.  333;  Wateon  ».  Sea- 

the  earning  power  of  money,  ta  the  proper  ^^^  ^j^  j^ine  R.  Co.  133  N.  0.  188.  4S 

tneamire  of  recover;  m  an  action  agalnat  an  q   ™    ,,,    -b-ji™  -   r«.t~-~    e*   n   u  t 

interaUte    railway   carrier    nndw   the   em-  ^  \  ^'^'  ^''^^J' ^'^^  ^^  Z' ^'^ 

ployere'  Itability  let  of  April  22,  IBOa  (35  0.  R-  Co.  101  Wla.  2W,  77  N.  W.  WB; 

Stat,  at  L.  U,  chap.  149),  as  amended  by  Southern  R.   Co.  t.   Hill,   ISO  Oa.   649,  TT 

the  act  of  ^rU  S,  1910    (36  Stat,  at  L.  B.  E.  S03. 

291,  chap.  143,  Comp.  Stat.  1S13,  g  8062),  It  waa  error  for  the  jnrj  to  eooalda  the 

for  the  benefit  of  the  widow  and  dependent  hlgb  wages  in  the  hazardoua  employment 

children  of  an  employee  killed  while  engaged  without    alao   considering   that    the   eip»- 

in  interstate  commerce.  1. _.  ,1..  ._  t\..i  _i___ •  _--  1— 

I»or  other  ctsei.  Me  D.m.ee..  TI.  ].  In  Dl-  J^"^  <*'  '"*  ""  "**  ""Pl°y°>"t  *«  '*" 

cast  Sup.  Ct.  1908.1  than  normal. 

Stewart  t.  Louisville  &  N.  R.  Co.  136  Ky. 

[No.  321.]  724,  12fi  S.  W.  1S4. 

Messrs.  John  T.  Shelby,  K.  L.  Worthing- 

Argued   AprU   10   and   20,    1918.      Decided  j^n,  W.  D.  Cochran.  Le  Wright  Browning. 

June  5,  1910.  David  H.  Leake,  Walter  Leake,  W.  F.  Evans, 

Wiiliani  H.  Bremner,  Frederiok  M.  Miner, 

IN  ERROR  to  the  Court  of  Appeals  of  the  and  Benjamin  D.  Warfleld  alio  filed  a  joiat 

State  of  Kentucky  to  review  a  judgment  brief  for  plaintiffs  in  error  in  this  and  firs 

which  affirmed  a  judgment  of   the   Circuit  other  cases   (Nos.   321,  399,  453,  478,  486, 

Court    tor    Montgomery    County,    in    that  743)  on  the  question  of  the  application  ol 

state,  in  favor  of  plaintiff  in  an  action  un-  the  7th  Amendment  to  the  Federal  Consti- 

der    the    Federal    employera'   liability    act.  tution: 

Reversed  and  remanded  for  further  proceed-  The  words   "right  of  trial   by  jury,"  as 

ings.  found  in  the  7th  Amendment  to  the  Const)* 

See   snme  case   below,   160  Ky.   296,   160  tution  oI  the  United  States,  which  is  te  hs 

8.  W.  736;  on  rehearing,  161  Ky.  esfi,  171  preserved    in    all  suite   at    law   when   tbs 

'  S.  W.  185.  amount  in   eo]^troversy  exceeds  t20,   imply 

The  facte  are  Stated  in  the  opinion.  a  common-law  jury  of  twelve  mm,  wheat 

m             -.  I.      m     c.    .^       n  ^         ■  rerdiot  must  be  unanimous. 

Messrs-    John    T.    Slielby,    Bobert    Ii,  o.   ■*  1  -i>_    i-       r.          wi  •-,■,.  t7   e   ^ 

„„,,. „     .„j    ,„._   t^',i   ofc.iw      ..  Capital  Traction  Co.  t.  Hof,  174  U.  8.  1, 

Northc^W,   and   John   Cr.l,   Shelby   ar-  J                               Ct  Rep.  680;  Ameri- 

gned  the  ^use,  and.  with  Mesers    H.  T.  ^^^    ^  ^    ^..^P       j^^  P^^    S  ■         „ 

Tnltn'  6^^^  l71'     nVTff  .        '  L.  ed.  1079,  17  Sup.  «.  Rep.  «8;   Spring- 

Apperson.  filed  a  brief  for  pia.nliff  in  er-  ^j^^  ^    ^^;^^   jjg  U,  S.   707,  41  L.  4. 

Plaintiff   should    have   1 

make  out  her  case  by  a  fair  preponderance  ..       _i        ■•    „i.-  1.  ^i.             „ 

-»  .«,.  *.  .!.«™„                        f    t~  means  not  merely  suite  which  the  common 

of  the  testimony.  .     ,    '             -,       ■ ,         ,       ...  j 

U  W.11.  <B,  20  L.  id.  887,  P1««.U  r  f'~"'»W  but  m.t.  In  jhldi  kp,l  rijll. 

r.nl,  22  W.ll.  118,  22  L.  «1.  7801  M«3.1r.  "'j^?*  "■"?"•?"    .""".i       ."S' 

,.  Bloml,  100  U.  S.  148,  60  L.  rf.  130,  28  l'^^""""'"  "  ''^t.  In  .quit;  ul  •!■ 

SuD    Ct.  Hen    1  niralty. 

Under  the  practice  in  Kentucky,  it  is  the  ?»«««  »■  Bedford,  3  Pet.  433,  7  L.  ed- 

duty  of  the  trial  court,  when  it  undertakes  '^^- 

to  give  an  instruction,  to  give  a  correct  one  The  rigU  of  trial  by  jury  is  not  a  mere 

on  the  subject;   and   if   a  party  offers   one  natter    of    procedure,    but    a    snbetantive 

that  is  incorrect,  it  then  also  becomes  the  'ight. 

duty  of  the  court  to  ^ve  a  correct  instruc-  Walker  t.  Hew  Mexico  ft  S.  P.  R.  Oa.  KS 

tion  on  the  subject  to  which  it  refers.  J.  8.  603,  41  L.  «d.  B37,  17  Sup.  Ct  Re^ 

Louisville,  H.  ft  St.  L.  R.  Co.  t.  Roberta,  121,  1  Am.  Neg.  R^.  768;  American  Pnb. 

144  Ky.  824,  130  S.  W.  1073.  I^o.  v.   Fisher,   and   Springville   t.  Thomas, 

The  jury  should  have  been  told  to  award  lupra;  Slocum  y.  New  Yark  L.  Ins.  Co.  228 

tliat    sum    which    represented    the    present  J.  S.  364,  67  L.  ed.  879,  33  Sup.  Ct  Bqt. 

emah    valut    ot    msonabla    axpectatimt    of  623,  Ann.  Cas.  lOUD,  1029;  Atlantic  Coast 

ill»  141  V.  s. 


1915. 


CHESAPEAKE  &  0.  R.  CX).  v.  KELLY. 


Line  R.  Co.  ▼.  Burnette,  239  U.  S.  199,  ante, 
226,  36  Sup.  Ct.  Rep.  75;  Norfolk  Southern 
R.  Co.  y.  Ferebee,  238  U.  S.  269,  59  L.  ed. 
1303,  85  Sup.  St.  Rep.  781. 

The  state  courts  do  not  take  jurisdiction 
of  these  causes  as  a  matter  of  comity,  as 
held  by  the  state  supreme  courts  in  the 
Minnesota  and  Virginia  cases,  but  as  agen- 
cies of  the  Federal  system. 

Second  Employers'  Liability  Cases  (Mon- 
dou  V.  New  York,  N.  H.  &  H.  R.  Co.)  223  U. 
S.  1,  56  L.  ed.  327,  88  L.RJL(N.S.)  44,  32 
Sup.  Ct.  Rep.  169,  1  N.  C.  C.  A.  875 ;  Claf - 
lin  y.  Houseman,  93  U.  S.  130,  23  L.  ed. 
833;  St.  Louis,  I.  M.  &  S.  R.  Co.  y.  Mc- 
Whirter,  229  U.  S.  265,  57  L.  ed.  1179,  33 
Sup.  Ct.  Rep.  858;  Seaboard  Air  Line  R. 
Co.  v.  Horton,  233  U.  S.  492,  58  L.  ed. 
1062,  L.R.A.1915C,  1,  34  Sup.  Ct.  Rep.  635, 
Ann.  Cas.  1915B,  475,  8  N.  C.  C.  A.  834. 

The  right  of  trial  by  jury,  as  provided 
by  the  7th  Amendment,  is  a  fundamental 
right  which  inheres  in  every  cause  of  action 
of  common-law  nature  created  by  the  Fed- 
eral government,  and  applies  wherever  the 
law  is  sought  to  be  enforced  within  the  lim- 
its of  the  Federal  Union;  and  Congress 
and  ihe  states  (in  such  cases)  are  power- 
less to  take  it  away. 

Walker  v.  New  Mexico  &  8.  P.  R.  Co.  165 
U.  S.  593,  595,  41  L.  ed.  837,  840,  17  Sup. 
Ct.  Rep.  421,  1  Am.  Neg.  Rep.  768;  Ameri- 
can Pub.  Co.  y.  Fisher,  106  U.  S.  464,  41  L. 
ed.  1079,  17  Sup.  Ct.  Rep.  618;  Springville 
V.  Thomas,  166  U.  S.  707,  41  L.  ed.  1172,  17 
Sup.  Ct.  Rep.  717;  Bauman  y.  Ross,  167 
U.  S.  548-592,  42  L.  ed.  270-289,  17  Sup. 
Ct.  Rep.  966;  Thompson  v.  Utah,  170  U.  S. 
343-350,  42  L.  ed.  1061-1066,  18  Sup.  Ct. 
Rep.  620;  Guthrie  Nat;  Bank  y.  Guthrie, 
173  U.  S.  528-537,  43  L.  ed.  796-800,  19 
Sup.  Ct.  Rep.  513;  Capital  Traction  Co.  v. 
Hof,  174  U.  S.  1,  43  L.  ed.  873,  19  Sup. 
Ct.  Rep.  580;  Maxwell  v.  Dow,  176  U.  S. 
581,  596,  44  L.  ed.  597,  603,  20  Sup.  Ct. 
Rep.  448,  494;  Black  v.  Jackson,  177  U.  S. 
349,  44  L.  ed.  801,  20  Sup.  Ct.  Rep.  648; 
Downes  v.  Bidwell,  182  U.  S.  244,  270,  45 
L,  ed.  1088,  1100,  21  Sup.  Ct.  Rep.  770; 
Rassmussen  y.  United  States,  197  U.  S.  516- 
526,  49  L.  ed.  862-865,  25  Sup.  Ct  Rep. 
614;  Second  Employers'  Liability  Cases 
(Mondou  v.  New  York,  N.  H.  &  H.  R.  Co.) 
223  U.  S.  1,  65-59,  56  L.  ed.  327,  348-350, 
38  L.R.A.(N.S.)  44,  82  Sup.  Ct.  Rep.  169, 
1  N.  C.  C.  A.  875;  Slocum  v.  New  York 
L.  Ins.  Co.  228  U.  S.  364,  377,  57  L.  ed. 
879,  885,  33  Sup.  Ct.  Rep.  523,  Ann.  Cas. 
1914  D,  1029;  Central  Vermont  R.  Co.  v. 
White,  238  U.  S.  507,  59  L.  ed.  1433,  35 
Sup.  Ct  Rep.  865,  Ann.  Cas.  1916B,  252, 
9  N.  0.  C.  A.  265;  Atlantic  Coast  Line 
R.  Co.  y.  Bumette,  239  U.  S.  199,  ante, 
60  li.  ed. 


1226,  36  Sup.  Ct  Rep.  75;  Wliallon  y. 
Bancroft,  4  Minn.  109,  Gil.  70;  Nerval  v. 
Rice,  2  Wis.  22;  Gaston  v.  Babcock,  6  Wis. 
503;  Ross  v.  Irving,  14  111.  171;  Baltimore 
&  0.  &  C.  R.  Co.  V.  Ketring,  122  Ind.  5, 
23  N.  E.  527;  Swarz  y.  Ramala,  03  Kan. 
633,  66  Pac.  649;  State  v.  Doty,  32  X.  J. 
L.  403,  90  Am.  Dec.  671;  Byers  v.  Com.  42 
Pa.  89. 

The  judicial  power  of  the  United  States 
extends  to  the  oaaus  foederis  in  whatever 
forum  presented,  and  necessarily  the  lim- 
itations upon  that  power  extend  along 
with  it 

Cohen  v.  Virginia,  6  Wheat.  384,  5  L.  ed. 
286;  Gulf,  C.  k  S.  F.  R.  Co.  v.  Hefley,  158 
U.  S.  98,  104,  39  L.  ed.  910,  912,  15  Sup. 
Ct.  Rep.  802;  Northern  P.  R.  Co.  v.  Wash- 
ington, 222  U.  S.  370,  50  L.  ed.  237,  32  Sup. 
Ct.  Rep.  160;  Second  Employers'  Liability 
Cases  (Moudou  v.  New  York,  N.  ^.  k  H.  R. 
Co.  223  U.  S.  1,  56  L.  ed.  327,  38  L.R.A. 
(N.S.)  44,  32  Sup.  Ct  Rep.  169,  1  N.  C.  C. 
A.  875;  Michigan  C.  R.  Co.  y.  Vreeland, 
227  U.  S.  59,  57  L.  ed.  417,  33  Sup.  Ct  Rep. 
192,  Ann.  Cas.  1914  C,  170;  Barron  v.  Bal- 
timore, 7  Pet.  243,  8  L.  ed.  672:  Holmes 
v.  Jennison,  14  Pet  582,  10  L.  ed.  600;  Fox 
y.  Ohio,  5  How.  434,  12  L.  ed.  223;  Spies 
y.  Illinois,  123  U.  S.  166,  31  L.  ed.  86, 
8  Sup.  Ct.  Rep.  21,  22;  Brown  y.  Walker, 
161  U.  S.  606,  40  L.  ed.  824,  5  Inters.  Com. 
Rep.  369,  16  Sup.  Ct  Rep.  644;  Marbury  v. 
Madison,  1  Cranch,  137,  2  L.  ed.  60;  Mc- 
CuUoch  V.  ^iaryland,  4  Wheat.  316,  4  L.  ed. 
579;  Central  Vermont  R.  Co.  v.  White,  238 
U.  S.  512,  59  L.  ed.  1436,  35  Sup.  Ct  Rep. 
865;  Norfolk  Southern  R.  Co.  y.  Ferebee, 
238  U.  S.  269,  59  L.  ed.  1303,  35  Sup.  Ct. 
Rep.  781;  Walker  v.  New  Mexico  k  S.  P. 
R.  Co.  165  U.  S.  693,  41  L.  cd.  837,  17  Sup. 
Ct  Rep.  421,  1  Am.  Neg.  Rep.  768;  Atlantic 
Coast  Line  R.  Co.  y.  Bumette,  239  U.  S.  199, 
ante,  226,  36  Sup.  Ct  Rep.  75;  Parsons  v. 
Bedford,  3  Pet.  433,  7  L.  ed.  732;  Supreme 
Justices  y.  Murray,  9  Wall.  274,  19  L.  ed. 
658;  Chicago,  B.  k  Q.  R.  Co.  y.  Chicago,  106 
U.  S.  226,  41  L.  ed.  979,  17  Sup.  Ct  Rep. 
581;  Capital  Traction  Co.  y.  Hof,  174  U. 
S.  1,  43  L.  ed.  873,  19  Sup.  Ct.  Rep.  580. 

Congress  has  not  granted  jurisdiction  of 
cases  under  the  Federal  employers'  lia- 
bility act  to  state  courts  which  do  not 
answer  the  requirements  of  the  7th  Amend- 
ment. 

Qaflin  y.  Houseman,  93  U.  S.  130,  23 
L.  ed.  833;  3  Story,  Const  §  1748;  The 
Moses  Taylor,  4  Wall.  411,  18  L.  ed.  397; 
American  Pub.  Co.  y.  Fisher,  166  U.  S.  464, 
41  L.  ed.  1079,  17  Sup.  Ct.  Rep.  618;  Wal- 
ker v.  New  ^lexico  k  S.  P.  R.  Co.  165  U.  S. 
695,  41  L.  ed.  840,  17  Sup.  Ot.  Rep,  421,  1 
Am.  Neg.  Rep.   768;   State  y.  Sinnott,  89 

1119 


SUPREME  COURT  OF  THE  UNITED  STAI^. 


Oct.  Tebm, 


Me.  41,  35  AtL  1007;  Rogers  ▼.  Bonnett,  2 
OkU.  653,  37  Pac  1078;  Clark  v.  Com.  29 
Pa.  120;  Second  Employeri'  Liability  Cases 
(Mondou  y.  New  York,  N.  H.  &  H.  R.  Co.) 
223  U.  S.  1,  12,  56  L.  ed.  327,  332,  32  Sup. 
Ct.  Rep.  169,  38  LJR.A.(NJS.)  44,  1  N.  C.  C. 
A.  875;  United  States  ▼.  Curtis,  107  U.  S. 
671,  27  L.  ed.  534,  2  Sup.  Ct.  Rep.  501; 
United  States  ▼.  Hall,  131  U.  S.  50,  33  L. 
ed.  97,  9  Sup.  Ct.  Rep.  663;  Cohen  ▼.  Vir- 
ginia, 6  Wheat.  414,  5  L.  ed.  293;  Kansas 
City  Southern  R.  Co.  ▼.  Leslie,  238  U.  S. 
599,  59  L.  ed.  1478,  35  Sup.  Ct.  Rep.  844; 
Central  Vermont  R.  Co.  ▼.  White,  238  U. 
S.  507,  59  L.  ed.  1433,  35  Sup.  Ct  Rep. 
865,  Ann.  Cat.  1916B,  252,  9  N.  a  C.  A. 
265. 

Mr.  Edward  O.  0*Rear  argued  the 
cause,  and,  with  Messrs  B.  G.  Williams 
and  F.  W.  Clemoits,  filed  a  brief  for  de- 
fendant in  error: 

The  jury  was  correctly  instructed  as  to 
the  method  of  ascertaining  the  damages. 

Chesapeake  &  O.  R.  Co.  v.  Dixon,  104  Ky. 
613,  47  S.  W.  615;  Louisville  &  N.  R.  Co. 
▼.  Morris,  14  Ky.  L.  Rep.  466,  20  S.  W. 
539;  Chesapeake  &  O.  R.  Oo.  ▼.  Lang,  100 
Ky.  221,  38  S.  W.  503,  40  S.  W.  451,  41  S. 
W.  271 ;  Louisvilft  &  N.  R.  Co.  ▼.  Simrall, 
127  Ky.  55,  104  S.  W.  1011. 

Messrs.  Edward  C.  OHear,  B.  Q.  Wil- 
liams, C.  B.  Stuart,  A.  C.  Cruce,  M.  K. 
Cruce,  R.  S.  Dinkle,  George  B.  Martin, 
George  B.  Leonard,  B.  F.  Procter,  George 
H.  Lamar,  C.  U.  McElroy,  D.  W.  Wright, 
C.  W.  Allen,  and  H.  W.  Walsh  also  filed  a 
joint  brief  for  defendants  in  error  in  this 
and  five  other  cases  (Nos.  321,  399,-  453, 
478,  485,  743),  on  the  question  of  the  appli- 
cation of  the  7th  Amendment  to  the  Federal 
Constitution : 

Federal  rights  are  enforced  in  a  state 
court  as  a  subject  of  litigation  between  par- 
ties before  it. 

Federalist,  No.  82;  Clafiin  v.  Houseman, 
93  U.  S.  130,  135,  23  L.  ed.  833,  838;  Sec- 
ond Employers'  Liability  Oases  (Mondou  v. 
New  York,  N.  H.  k  H.  R.  Co.)  223  U.  S.  1, 
56  L.  ed.  327,  38  L.R.A.(N.S.)  44,  32  Sup. 
Ct.  Rep.  169,  1  N.  C.  C.  A.  875. 

That  Federal  laws  are  laws  of  the  sev- 
eral states  does  not  change  the  nature  of 
jurisdiction  of  the  state  courts. 

Black,  Law  Diet.  Jurisdiction;  Clafiin  ▼. 
Houseman,  supra;  Gibson  ▼.  Bellingham  & 
N.  R.  Co.  213  Fed.  48. 

Federal  rights  are  not  enforced  in  state 
courts  by  a  delegated  authority  from  the 
Federal  government. 

Martin  ▼.  Hunter,  1  Wheat.  304,  330,  4  L. 
ed.  97,  103;  Robertson  v.  Baldwin,  165  U. 
S.  275,  41  L.  ed.  715,  17  Sup.  Ct.  Rep. 
326;  Cohen  ▼.  Virginia,  6  Wheat.  264,  421, 
1120 


5  L.  ed.  257,  295;  Cincinnati  N.  O.  Sl  T. 
P.  R.  Co.  ▼.  Gregg,  25  Ky.  L.  Rep.  2329,  80 
S.  W.  512;  niinois  C.  R.  Co.  ▼.  Curry,  127 
Ky.  643,  106  S.  W.  294;  Illinois  C.  R.  Co.  t. 
Eblin,  114  Ky.  817,  71  S.  W.  019;  McElvain 
V.  St  Louis  &  S.  F.  R.  Co.  151  Mo.  App.  126, 
131  S.  W.  736;  Western  U.  Teleg.  Co.  ▼.  BiU- 
soly,  116  Va.  562,  82  S.  K  91;  Southern 
R.  Co.  V.  Jacobs,  116  Va.  189,  81  S.  K  99; 
Louisville  &  N.  R.  Co.  v.  Scott,  133  Ky. 
724,  118  S.  W.  990,  19  Ann.  Cas.  392,  af- 
firmed in  219  U.  S.  209,  55  I.,  ad.  183,  31 
Sup.  Ct.  Rep.  171;  Grand  Trunk  Western 
R.  Co.  V.  Lindsay,  233  U.  S.  42,  48,  58  L. 
ed.  838,  842,  34  Sup.  Ct.  Rep.  581;  Fed- 
eralist, No.  82;  Kansas  Oity  Western  R. 
Co.  ▼.  McAdow,  240  U.  S.  51,  ante,  520,  36 
Sup.  Ct.  R^.  252. 

That  the  provisions  of  the  7th  Amendment 
are  applicable  to  the  judiciary  of  the  terri- 
tories and  the  District  of  Columbia  does 
not  show  that  those  provisions  must  be 
followed  in  state  courts,  in  trying  cases 
involving  Federal  laws.  The  United  States 
has  created  those  courts  by  virtue  of  its 
authority  as  soverign  of  the  territory  and 
of  the  district;  but  the  United  States  has 
not  created  state  courts.  The  reason  the 
7th  Amendment  applies  to  the  territories 
and  the  District  is  that  the  United  States  is 
sovereign,  and  the  7th  Amendment  is  binding 
upon  the  United  States  in  creating  its  judi- 
ciary. The  reason  does  not  lie  in  the  fact 
that  the  courts  of  the  territories  are  en- 
forcing Federal  law. 

Capital  Traction  Co.  v.  Hof,  174  U.  S. 
1,  5,  43  L.  ed.  873,  874,  19  Sup.  Ct.  Rep. 
580;  Thompson  v.  Utah,  170  U.  S.  343,  348, 
42  L.  ed.  1061,  1066,  18  Sup.  Ct  Rep.  620; 
American  Ins.  Co.  v.  356  Bales  of  Cotton, 
1  Pet  511,  546,  7  L.  ed.  242,  253. 

The  7th  Amendment  applies  to  the  Fed- 
eral judiciary,  not  to  Federal  rights. 

Barron  v.  Baltimore,  7  Pet.  243,  246,  249, 
8  L.  ed.  672,  674,  675;  Walker  ▼.  Sauvinet, 
92  U.  S.  90,  92,  23  L.  ed.  678,  679;  Brown 
▼.  New  Jersey,  175  U.  S.  172,  174,  44  L.  ed. 
119,  120,  20  Sup.  Ct.  Rep.  77;  Maxwell  v. 
Dow,  176  U.  S.  581,  44  L.  ed.  597,  20  Sup. 
Ct.  Rep.  448,  494;  Pearson  v.  Yewdall,  95 
U.  S.  294,  24  L.  ed.  436 ;  Ohio  ex  rel.  Uoyd 
V.  Dollison,  194  U.  S.  447,  48  L.  ed.  1065, 
24  Sup.  Ct.  Rep.  703;  Bolln  v.  Nebraska, 
176  U.  S.  87,  44  L.  ed.  383,  20  Sup.  Ct 
Rep.  287,  affirming  51  Neb.  581,  71  N.  W. 
444;  Brown  v.  Walker,  161  U.  S.  606,  40  L. 
ed.  824,  5  Inters.  Com.  Rep.  369,  16  Sup. 
Ct  Rep.  644;  Monongahela  Nav.  Co.  v. 
United  States,  148  U.  S.  324,  37  L.  ed. 
467,  13  Sup.  Ct  Rep.  622;  McElvaine  v. 
Brush,  142  U.  S.  158,  35  L.  ed.  973,  12  Sup. 
Ct  Hep.  156;  Eilenbecker  v.  District  Ct 
134  U.  S.  34,  33  L.  ed.  803,  10  Sup.  Ct 
Rep.  424;  Spies  v.  Illinois,  123  U.  S.  131, 

241  V.  S. 


IMS.  CHESAFEAK£  ft  O.  B.  CO.  t.  KEIXY.  486-488 

«  L.  ed.  SO,  8  Sup.  Ct.  Rep.  21;  Edwards  &  St  L.  B.  Co.  v.  BomboIU,  241  U.  S.  811. 

r.  KUott,  21  Wftll.  6S2,  22  L.  ed.  4D0;  Su-  Ante,  081,  80  Sup.  Ct.  Bep.  59S. 
pr«me  JuetiM*  t.  Murmjr,  0  Wall.  277,  10       Tha  only  other  matt«r  rEquiring  consider- 

L.  «d.  660;  Fox  y.  Ohio,  S  How.  410,  12  L.  atioti  U  the  InitructioQ  of  the  trial  court, 

«d.  213;   LiviiigBton  T.  Moor^  T  Pet.  061,  aJDrmed  bj  the  court  of  appeala,  respecting 

8  lU  ed.  T81.  the   method   of   ucertainlii^  the   damagei, 

6t*te  courts,  whether  providing  »  eom-  We  Bu-j  any  in  paasing  that  while  the  aot 

mon-law  jurj  or  not,  maj  take  juriadietlon  of  Congreu  doea  not  require  that  in  such 

«f  caeee  involving  Federal  rights,  and  de-  eases   damages  tw  apportioned   among  the 

termine  the  case  in  aceordaxice  with  thdr  beceflciaxies    {Central   Vvmont   B.   Co.   v. 

usual  and  custonwrr  methods  of  trial.  White,  239  U.  8.  607,  B16,  69  L.  ed.  143S, 

Winters  v.  Minneapolia  t  Bt.  L.  R.  Co.  1438,  3S  Sup.  Ot.  Rep.  865,  0  N.  C.  C.  A. 

126  Minn.  260,  148  N.  W.  106;  Oheeapeake  266),  It  U  not  in  the  present  ease  insisted 

A  O.  B.  Co.  T.  Kellj,  IQI  K7.  665,  171  S.  that  the  act  probibiU  such  an  apportion- 

W.  186;  LoniBvtIle  &  N.  R.  Co.  v.  Winkler,  mat,  and  II  there  be  any  queation  about 

162  Kf.  843,  173  8.  W.  161,  9  N.  G.  C.  A.  this  it  U  not  now  before  Ui. 
146;   Bombolie  v.  Uinneapolis  ft  St.  L.  R.       Respecting  the  matter  with  which  we  havs 

Co.  128  Minn.  112, 160  N.  W.  385;  St.  LouU  to  deal,  the  trial  court,  after  sUting  that 

ft  S.  F.  R.  Co.  V.  Brown,  —  Okla.  — ,  144  if  the  Jury  should  And  for  the  plaintiff  they 

Pac.  1075;  Chesapeake  ft  0.  B.  Co.  t.  Cama-  should  fix  the  damagea  at  auch  sum  [488] 

ban,  —  Va.  — ~,   SS   S.   E.   866;    Qibson  v.  as  would  reasonably  eompeuaate  the  depend- 

BelliDgham  ft  N.  R.  Co.  213  Fed   488;  16  ent  members  of  Kelly's  family  for  the  pe- 

Columbia  L.  Rev.  618;  3  Va.  L.  Rev.  312;  1  cuniary  loss,  tf  any,  shown  by  the  evidence 

Va.  L.  Bf^.  721.  to  have  been  sustained  by  them  because  of 
Kelly's  injury  and  death;  and  that,  in  fixing 

Mr.  Justice  Pitney  delivered  the  opin-  the  amount,  they  were  authorized  to  take 

Ion  of  the  court:  into  consideration  the  evidence  showing  the 

In  this  action,  which  was  founded  upon  decedent's  age,  habita,  buslneaa  ability,  eam- 
the  employers'  liability  act  of  Congresa  ot  ing  capacity,  and  probable  duration  of  life, 
April  22,  1S08  (chap.  149,  35  SUt.  at  L.  and  also  the  pecuniary  loss,  if  any,  which 
65),  as  amended  by  act  ot  April  6,  1910  the  jury  might  find  from  the  evidence  that 
(chap.  143,  36  Stat,  at  L.  291,  Comp.  Stat,  the  dependent  members  of  his  family  had 
1S13,  g  866E),  defendant  In  error,  as  ed-  sustained  because  of  being  deprived  of  aueh 
miniatratriz  of  Matt  Kelly,  deceased,  retwv-  maintenance  or  eupport  or  other  pMuniary 
ered  a  judgment  in  the  Montgomery  [487]  advantage,  it  any,  which  the  Jury  might  be- 
-circuit  court  for  damages  because  of  the  lieve  from  the  evidence  they  would  have  de- 
death  at  the  intestate  while  employed  by  rived  from  his  life  thereafter, — proceeded  as 
plaintiff  in  error  in  interstate  commerce,  follows:  "11  the  jury  find  tor  the  plaintilf 
The  verdict  was  for  819,011,  which  was  ap-  they  will  find  a  gross  sum  tor  the  plaintilT 
portioned  among  the  widow  and  infant  ohil-  againat  the  defendant  which  muat  not  ax- 
'dren  of  the  deceased,  excluding  a  son  who  ceed  the  probable  earnings  of  Matt  Kelly 
bad  attained  his  majority.  The  court  of  had  he  lived.  The  gross  sum  to  be  found 
appeals  ot  Kentucky  affirmed  the  Judgment,  for  plaiutitT,  if  the  jury  find  for  the  plain- 
«nd  denied  a  rehearing.  160  Ky.  296,  169  tiff,  must  be  the  aggn^ate  ot  the  sums  which 
S.  W.  736,  161  Ky.  655,  171  S.  W.  1B5.  the  jury  may  find  from  the  evidence  and 

Upon  the  present  writ  of  error  the  first  ^   "•  the  pecuniary  loas  above  described, 

■contention  Is  that  the  limitation  of  the  7th  ^^^'^    e**''"    dependent    member    ot    Matt 

Amendment    to    the    Federal    Constitution  f^e'lj'a  tamfly  may  have  sustained  by  bis 

preserving  the  common-law  right  ot  trial  death;"  following  this  with  an  instruction 

by  jury  inheres  in   every  right  of  action  ""P**!"?  tk*  "Pportionment,  with  which,  aa 

■created  under  the  authority  of  that  Consti-  Z'.^r"  "'*■   """"  ?<".  "«",  «">«">«»■ 

tution.  and   that  because,   as   is  said,  the  P**""^*,I*?,^"*f?  "  '■"'""="»"  t^at  the 

.   .-     .     .  ...  jUTv  should     fix  the  damaeea  at  that  sum 

«urt.   of    Kentucky   are    unable    to    «««  '^^  r^r^nU  the  present  cask  value  ot 

that  right  to  hfgants  by  reason  of  a  Uw  q,,  reasonable  expectation  ot  pecuniary  ad- 

«f  the  sUte,  passed  pursuant  to  a  provi-  ,anUge    ...    to  said  Addle  Kelly  during 

Bion  ot   Its  Constitution,  by  the  terms  ot  her  widowhood   and  while  dependent,   and 

which  in  all  trials  of  olvil  actions  in  the  pecuniary  advantage  to  said  infant  children 

circuit  courts  three-fourths  or  more  ot  the  while    dependent    and    until    they    becoma 

jurors   concurring   may   return   a   verdict,  twenty-one  years   of   age."     This   was  re- 

those   courts   are   without    jurisdiction    of  fosed. 

actions  arising  under  the  Federal  employera'        Laying  aside  questions  ot  form,  the  acntrt 

liability  act.    This  contention  has  been  set  of  appeals  treated  the  instruction  given  and 

«t  rest  by  our  recsnt  decision  in  Uinneapolis  the  refnsal  et  tha  requested  Instruction  as 
•A  I:,  sd.                                                               71  WXV 


488-^1 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cor.  Temm, 


raiiiiif  the  ^[iiestioii  *that  what  the  bene- 
fieUxy  iB  entitled  to  is  not  a  lump  sum  equal 
to  what  he  would  reoeiye  during  the  esti- 
mated term  of  dependency,  [489]  but  the 
preeent    eaah    Talue    of    tuch    aggregate 
amount.''    Defendanfi  contention  was  over- 
ruled upon  the  ground  that  the  whole  loss  of 
the  beneficiaries  is  sustained  at  the  time  of 
the  death  of  tde  party  in  question,  the  court 
saying:    "While  that  loss  is,  in  a  measure, 
future  support,  the  father's  death  precipi- 
tated it,  so  that  it  is  all  due,  and  we  are 
not  impressed  with  the  argument  that  the 
sum  due  should  be  reduced  by  rebate  or 
discount.     The  value  of  a  father's  support 
is  not  so  difficult  to  estimate,  and  the  aver- 
age juryman  is  competent  to  compute  it, 
but  to  figure  interest  on  deferred  payments, 
with  annual  rests,  and  reach  a  present  cash 
value  of  such  loss  to  each  dependent   is 
more  than  ought  to  be  asked  of  anyone  less 
qualified  than  an  actuary."    [160  Ky.  803.] 
We  are  constrained  to  say  that,  in  our 
opinion,  the  court  of  appeals  erred  in  its 
conclusion  upon  this  point.     The  damages 
should  be  equivalent  to  compensation  for 
the  deprivation  of  the  reasonable  expecta- 
tion of  pecuniary  ^benefits  that  would  have 
resulted  from  the  continued  life  of  the  de- 
ceased.    Michigan  C.  R.  Go.  v.  Vreeland, 
227  U.  8.  59,  70,  71,  67  L.  ed.  417,  421, 
422,  38  Sup.  Ct.  Rep.  192,  Ann.  Gas.  1914G, 
176;    American  R.   Go.  v.  Didricksen,  227 
U.  S.  145,  149,  57  L.  ad.  456,  457,  38  Sup. 
Gt  Rq>.  224 ;  Gulf,  G.  &  S.  F.  R.  Go.  v.  Mc- 
Ginnis,  228  U.  S.  173,  175,  57  L.  ed.  785, 
786,  33  Sup.  Gt.  Rep.  426,  3  N.  G.  G.  A. 
806.    So  far  as  a  verdict  is  based  upon  the 
deprivation  of  future  benefits,  it  will  afford 
more  than  compensation  if  it  be  made  up 
by  aggregating  the  benefits  without  taking 
accoimt  of  the  earning  power  of  the  money 
that  is  presently  to  be  awarded.    It  is  self- 
evident  that  a  given  sum  of  money  in  hand 
is  worth  more  than  the  like  sum  of  money 
payable  in  the  future.    Ordinarily  a  person 
seeking  to  recover  damages  for  the  wrongful 
act  of  another  must  do  that  which  a  rea- 
sonable man  would  do  under  the  circum- 
stances to  limit  the  amount  of  the  damages. 
Wicker  v.  Hoppook,  6  Wall.  94,  99,  18  L. 
ad.  752,  758;  The  Baltimore,  8  Wall.  377, 
887,  19  L.  ad.  463,  465;  United  States  ▼. 
Smith,  94  U.  8.  214,  218,  24  L.  ed.  115; 
Warren  ▼.  Stoddart,  105  U.  8.  224,  229,  26 
L.  ad.  1117,  1120;  United  States  ▼.  United 
States  Fidelity  ft  G.  Go.  286  U.  8.  512,  526, 
69  L.  ed.  696,  708,  Z5  Sup.  Gt  R^.  298. 
and  [490]  the  putting  out  of  money  a**  in- 
terest is  at  this  day  so  common  a  matter 
tiiat  or4ina^rily .  it  cannot  be  excluded  from 
aoosideimtioo   in   determining  the   present 
equivalent  of  future  payments,  since  a  rea- 
sonable  man,   even    from   selfish   motives, 
IISS 


would  probably  gain  some  money  by  way  of 
interest'  upon  the  money  recovmd.  Savings 
banks  and  other  established  financial  insti- 
tutions are  in  many  cases  aooessiUe  for  the 
deposit  of  moderate  sums  at  interest^  with- 
out substantial  danger  of  loss;  the  sale  d 
annuities  is  not  unknown;  and,  for  larger 
siuns,  state  and  municipal  bonds  and  other 
securities  of  almost  equal  standing  are  oooi- 
monly  available. 

Local  conditions  are  not  to  be  disregard- 
ed, and  besides,  there  may  be  cases  where 
the  anticipated  pecuniary  advantage  of 
which  the  beneficiary  has  been  deprived 
covers  an  expectancy  so  short  and  is  in  the 
aggregate  so  small  that  a  reasonable  man 
could  not  be  expected  to  make  an  invest- 
ment or  purchase  an  annuity  with  the  pro- 
ceeds of  the  judgment  But,  as  a  rule,  and 
in  all  cases  where  it  is  reasonable  to  sup- 
pose that  interest  may  safely  be  earned 
upon  the  amount  that  is  awarded,  the  ascer- 
tained future  benefits  ought  to  be  discount- 
ed in  the  making  up  of  the  award. 

We  do  not  mean  to  say  that  the  discount 
should  be  at  what  is  commonly  called  the 
*'legal  rate"  of  interest;  that  is,  the  rate 
limited  by  law,  beyond  which  interest  is 
prohibited.  It  may  be  that  such  rates  are 
not  obtainable  upon  investments  on  safe 
securities,  at  least,  without  the  exercise  of 
financial  experience  and  skill  in  the  ad- 
ministration of  the  fund;  and  it  is  evident 
that  the  compensation  should  be  awarded 
upon  a  basis  that  does  not  call  upon  the 
beneficiaries  to  exercise  such  skill,  for  where 
this  is  neceesarily  employed,  the  interest  re- 
turn is  in  part  earned  by  the  investor  rather 
than  by  the  investment.  This,  however,  is  a 
matter  that  ordinarily  may  be  adjusted  by 
scaling  the  rate  of  interest  to  be  adopted  in 
computing  [401]  the  present  value  of  the 
future  benefits ;  it  being  a  matter  of  common 
knowledge  that,  as  a  rule,  the  best  and 
safest  investments,  and  those  which  require 
the  least  care,  yield  only  a  moderate  return. 

We  are  not  in  this  case  called  upon  to  lay 
down  a  precise  rule  or  formula,  and  it  is 
not  our  purpose  to  do  this,  but  merely  to 
indicate  some  of  the  considerations  that  sup- 
port the  view  we  have  expressed  that,  in 
computing  the  damages  recoverable  for  the 
deprivation  of  future  benefits,  the  principle 
of  limiting  the  recovery  to  compensation 
requires  that  adequate  allowance  be  made, 
according  to  circumstances,  for  the  earning 
power  of  money;  in  short,  that  when  future 
payments  or  other  pecuniary  benefits  are  t» 
be  anticipated,  the  verdict  should  be  mada 
up  on  the  basis  of  their  present  value  only. 

We  are  aware  that  it  may  be  a  diffienlt 
mathematical  computation  for  tha  ordinal 
juryman  to  calculate  interest  on  deforsd 
payments,  with  annual  rests,  and  reach  a 

141  U.  8» 


1916. 


CHESAPEAKE  &  O.  R.  00.  ▼.  KELLY. 


401-4M 


present  cash  value.  Whether  the  difficulty 
should  be  met  by  admitting  the  testimony 
of  expert  witnesses,  or  by  receiving  in  evi- 
dence the  standard  interest  and  annuity 
tables  in  which  present  values  are  worked 
out  at  various  rates  of  interest  and  for 
various  periods  covering  the  ordinary  ex- 
pectancies of  life,  it  is  not  for  us  in  this 
ease  to  say.  Like  other  questions  of  pro- 
cedure and  evidence,  it  is  to  be  determined 
according  to  the  law  of  the  forum. 

But  the  question  of  the  proper  measure  of 
damages  is  inseparably  connected  with  the 
right  of  action,  and  in  cases  arising  under 
the  Federal  employers'  liability  act  it  must 
be  settled  according  to  general  principles  of 
law  as  administered  in  the  Federal  courts. 

We  are  not  reminded  that  in  any  previous 
ease  in  this  court  the  precise  question  now 
presented  has  been  necessarily  involved. 
But  in  two  cases  the  applicability  of  pres- 
ent values  has  been  recognized. 

Vicksburg  &  M.  R.  Co.  v.  Putnam,  118  U. 
8.  545,  30  L.  ed.  257,  7  Sup.  Ct.  Rep.  1,  10 
Am.  Neg.  Gas.  574,  was  a  [402]  review  of 
a  judgment  recovered  in  a  circuit  court  of 
the  United  States  in  an  action  for  person- 
al injuries  where  the  damages  claimed  in- 
eluded  compensation  for  the  impairment  of 
plaintiff's  earning  capacity.  Assuming,  for 
purposes  of  illustration,  that  plaintiff's  ex- 
peetancy  of  life  was  thirty  years,  the  trial 
judge  instructed  the  jury  (p.  551)  that  it 
would  not  be  proper  to  allow  him  in  gross 
the  siun  of  the  annual  losses  during  his 
expectancy,  "for  the  annuity  will  be  pay- 
able one  part  this  year  and  another  part 
next  year,  and  each  of  the  thirty  parts  pay- 
able each  of  the  thirty  years.  You  must 
have  a  sum  such  that,  when  he  dies,  it  will 
all  be  used  up  at  the  end  of  thirty  years." 
Having  called  attention  to  certain  tables 
that  were  in  evidence,  he  proceeded  to  say: 
^Add  that  to  the  present  worth  of  annuity 
if  you  find  he  was  damaged."  The  judg- 
ment was  reversed,  not  because  of  the  recog- 
nition of  the  rule  of  present  values,  but  be- 
eause  of  the  conclusive  force  that  was  given 
1^  the  trial  judge  to  the  life  and  annuity 
tables.  In  the  course  of  the  opinio^  the 
eoort,  by  Mr.  Justice  Gray,  said  (p.  654) 
that  the  compensation  should  include  "a 
fair  recompense  for  the  loss  of  what  he 
would  otherwise  have  earned  in  his  trade 
or  profession,  and  has  been  deprived  of  the 
capacity  of  earning  by  the  wrongful  act 
of  the  defendant.  ...  In  order  to  assist 
the  Jury  in  making  such  an  estimate,  stand- 
ard life  and  annuity  tables,  showing  at  any 
afs  the  probable  duration  of  life,  and  the 
present  value  of  a  life  annuity,  are  compe- 
tent evidence.  .  .  .  But  it  has  never 
been  held  that  the  rules  to  be  derived  from 
•oeh  tables  or  computations  must  be  the 
60  Ju  eO. 


absolute  guides  of  the  judgment  and  tha 
conscience  of  the  jury." 

In  Pierce  v.  Tennessee  Ooal,  Iron  ft  R. 
Co.  173  U.  8.  1,  43  L.  ed.  591,  19  Sup.  Ct. 
Rep.  335,  5  Am.  Neg.  Rep.  J47,  which  was 
an  action  founded  upon  defendant's  breach 
and  abandonment  of  a  contract  of  employ- 
ment construed  by  this  court  to  be  limited 
only  by  plaintiff's  life,  the  trial  court  ruled 
(p.  6)  that  no  recovery  could  be  allowed  be- 
yond [403]  the  instalments  of  wages  due 
up  to  the  date  of  the  trial,  refusing  to 
charge,  as.  requested  by  plaintiff,  that  he  was 
"entitled  to  the  full  benefit  of  his  contract^ 
which  is  the  present  value  of  the  money 
agreed  to  be  paid  and  the  articles  to  be  fur^ 
nished  under  the  contract  for  the  period  of 
his  life,  if  his  disability  is  permanent,"  etc 
This  court  held  (p.  10)  that  the  circuit 
court  had  erred  in  restricting  the  damages 
as  mentioned,  and  in  declining  to  instruct 
the  jury  in  accordance  with  plaintiff's  re- 
quest; citing  Vicksburg  &  M.  R.  Co.  v.  Put- 
nam, ubi  supra,  and  quoting  the  reference  to 
the  ^'present  value  of  a  life  annuity;"  and 
also  citing  (p.  13)  Schell  v.  Plumb^  55  N. 
Y.  592,  and  making  the  following  quotation 
from  the  opinion  of  the  court  of  appeals  of 
New  York  in  that  case:  "Here  the  con- 
tract of  the  testator  was  to  support  the 
plaintiff  during  her  life.  That  was  a  con- 
tinuing contract  during  that  period ;  but  the 
contract  was  entire,  and  a  total  breach  put 
an  end  to  it,  and  gave  the  plaintiff  a  right 
to  recover  an  equivalent  in  damages,  which 
equivalent  was  the  present  value  of  her 
contract." 

That  where  future  payments  are  to  be 
anticipated  and  capitalized  in  a  verdict  the 
plaintiff  is  entitled  to  no  more  than  their 
present  worth  is  commonly  recognized  in 
the  state  courts.  We  cite  some  of  the  cases, 
but  without  intending  to  approve  any  of 
the  particular  formulae  that  have  been  fol- 
lowed in  applying  the  principle;  since  in 
this  respect  the  decisions  are  not  harmoni- 
ous, and  some  of  them  may  be  subject  to 
question.  Louisville  &  N.  R.  Co.  v.  Tram- 
mell,  98  Ala.  350,  355,  9  So.  870;  McAdory 
V.  Louisville  &  N.  R.  Co.  94  Ala.  272,  276, 
10  So.  507;  Central  R.  Co.  v.  Rouse,  77  Ga. 
393,  408,  8  S.  E.  307;  AtlanU  ft  W.  P.  R. 
Co.  V.  Newton,  85  Qa.  517,  528,  11  S.  £. 
776;  Kinney  v.  Folkerts,  78  Mich.  687,  701, 
44  N.  W.  152,  84  Mich.  616,  624,  48  N. 
W.  283;  Hackney  v.  Delaware  k  A.  Teleg. 
A  Teleph.  Co.  69  N.  J.  L.  385,  837,  55  AU. 
252;  Gregory  v.  New  York,  L.  B.  A  W.  R. 
Co.  55  Him,  303,  308,  8  N.  Y.  Supp.  525; 
Benton  v.  North  Carolina  R.  Co.  122  N.  C. 
1007,  1009,  30  S.  E.  883;  Poe  ▼.  Raleigh  * 
A.  Air  Line  R.  Go.  141  N.  0.  525,  528,  64 
S.  B.  406;  [404]  Johnson  v.  Seaboard  Aiv 
Line  R.  Co.  168  N.  a  431,  452,  79  S.  B.  690, 


404 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  Tkm, 


Ann.  Cat.  1915B,  698,  4  N.  C.  C.  A.  627; 
Goodhart  ▼.  PenniylvanU  R.  Co.  177  Pa.  1, 
17,  65  Am.  St.  Rep.  706,  35  Atl.  191 ;  Irwin 
▼.  Pennsylvania  R.  Co.  226  Pa.  156,  75  Atl. 
19;  Reitler  v.  Pennsylvania  R.  Co.  238  Pa. 
1,  7,  85  Atl.  1000;  McCabe  v.  Narragansett 
Electric  Lighting  Co.  26  R.  I.  427,  435,  59 
Atl.  112;  Houston  &  T.  C.  R.  Co.  ▼.  Willie, 
53  Tex.  818,  328,  37  Am.  Rep.  756;  Rndiger 
T.  Chicago,  St.  P.  M.  &  0.  R.  Co.  101  Wis. 
292,  303,  77  N.  W.  169;  Secord  ▼.  John 
Schroeder  Lumber  Co.  160  Wis.  1,  7,  150 
N.  W.  971.  See  also  St.  LouU,  L  M.  &  S. 
R.  Co.  V.  Needham  (C.  C.  A.  8th)  3  C. 
C.  A.  129,  10  U.  S.  App.  339,  62  Fed.  371, 
377;  Baltimore  k  0.  R.  Co.  v.  Henthorne 
(C.  C.  A.  6th)  19  C.  C.  A.  623,  43  U.  S. 
App.  113,  73  Fed.  634,  64L 

Judgment  reversed  and  the  cause  re- 
manded for  further  proceedings  not  incon- 
sistent with  this  opinion. 


CHESAPEAKE  k  OHIO  RAILWAY  COM- 
PANY, Plff.  in  Err., 
▼. 

JAMES  R.  GAINEY,  Jb.,1  Administrator 
de  bonii  non  of  the  Estate  of  Richard 
Dwyer,  Deceased. 

(See  S.  C.  Reporter's  ed.  494-496.) 

Jury  —  Infringement  of  rigbt  —  non- 
ananlmoBA  verdict  —  action  under 
Federal  statute. 

1.  The  requirement  of  U.  S.  Const.,  7th 

Amend.,  that  trials  by  jury  be  according  to 

the  course  of  the  common  law,  i.  e.,  by  a 

unanimous   verdict,   does    not   control    the 

state   courts,   even   when   enforcing   rights 

under  a  Federal  statute  like  the  employers' 

liability  act  of  April  22,  1908  (35  Stat,  at 

L.  65,  chap.  149,  Comp.  Stat.  1913,  §  8657), 

and  suc^  courts  may,  therefore,  give  effect, 

in  actions  under  that  statute,  to  a  local 

practice  permitting  a  less  than  unanimous 

verdict. 

(For  other  cases,  see  Jury,  I.  d,  2,  In  Digest 
Sup.  Ct.  1908.] 

Damages  —  for  death  —  future  benefits 

—  present  cash  value. 

2.  The  present  cash  value  of  the  future 

1  Death  of  Sarah  Dwyer  suggested,  and 
appearance  of  James  R.  Gainey,  Jr.,  admin- 
istrator de  honig  non  of  Richard  Dwyer,  de- 
eeased,  as  party  defendant  in  error  herein, 
filed  and  entered  January  31,  1916. 

Note. — On  number  and  agreement  of 
jurors  necessary  to  constitute  a  valid  ver- 
dict— see  notes  to  State  v.  Bates,  43  L.R.A. 
33,  and  Silsby  v.  Foote,  14  L.  ed.  U.  S.  394. 

On  the  constitutionality,  application,  and 
effect  of  the  Federal  employers'  liability 
Act — see  notes  to  Lamphere  v.  Oregon  R.  A 
Nav.  Go.  47  L.R.A.(N.S.)  38,  and  Seaboard 
Air  Line  R.  Co.  v.  Horton»  LJUL1915C,  47. 
11S4 


I  benefits  of  which  the  beneficiarr  was  de- 
.  prived  by  the  death,  making  adequate  al- 
I  lowance  according  to  the  circumstances  for 
I  the  earning  power  of  money,  is  the  proper 
I  measure  of  recovery  in  an  action  sgaintt 
an  interstate  railwav  carrier  under  the  Fed- 
eral employers'  liability  act  of  April  22, 
1908    (35  SUt   at  L.  65,  chap.   149),  at 
amended  by  the  act  of  April  5,  1910  (36 
Stat,  at  L.  291,  chap.  143,  Comp.  SUt.  1913, 
§  8662),  for  the  benefit  of  the  widow  of 
an  employee  killed  while  engaged  in  inter- 
state commerce. 

[For  other  cases,  see  Damages,  VI.  j.  in  Di- 
gest Sup.  Ct.  1908.] 

[No.  453.] 

Submitted    April    19,    20,    1916.      Decided 

June  5,  1916. 

IN  ERROR  to  the'Court  of  Appeals  of  the 
State  of  Kentucky  to  review  a  judgment 
which,  on  a  Second  Appeal,  affirmed  a  judg- 
ment of  the  Circuit  Court  of  Boyd  County, 
in  that  state,  in  favor  of  plaintiff  in  an  ac- 
tion of  death  under  the  Federal  employers' 
liability  act.  Reversed  and  remanded  for 
further  proceedings.! 

See  same  case  below,  162  Ky.  427,  172 
S.  W.  918. 

The  facts  are  stated  in  the  opinion. 

Messrs.  E.  Ii.  Worthington,  W.  D. 
Cochran,  and  lie  Wright  Browning  sub- 
mitted the  cause  for  plaintiff  in  error.  Mr. 
P.  K.  Malin  was  on  the  brief: 

The  instruction  on  the  measure  of  dsm- 
ages  was  erroneous. 

Hackney  v.  Delaware  db  A.  Teleg.  & 
Teleph.  Co.  69  N.  J.  L.  335,  55  AtL  252; 
McCabe  v.  Narragansett  Electric  Lighting 
Co.  26  R.  I.  427,  59  AU.  112 ;  LouisviUe  k 
N.  R.  Co.  V.  Trammell,  93  Ala.  354,  9  Sa 
870;  Benton  v.  North  Carolina  R.  Co.  122 
N.  C.  1007,  30  S.  E.  333;  Rudiger  v.  Chi- 
cago, St.  P.  M.  db  O.  R.  Co.  101  Wis.  292, 
77  N.  W.  169;  Southern  R.  Co.  v.  Hill,  139 
Qa.  549,  77  S.  E.  803;  Irvin  v.  Southern  R. 
Co.  164  N.  O.  5,  80  S.  B.  78;  Thornton  v. 
Seaboard  Air  Line  R.  Co.  98  S.  C.  348,  82 
S.  ^.  433;  Kansas  City  Southern  R.  Co.  ▼. 
Leslie,  233  U.  S.  599,  59  L.  ed.  1478,  35  Sup. 
Ct.  Rep.  844;  American  R.  Co.  v.  Didriek- 
sen,  227  U.  S.  145,  57  L.  ed.  456,  33  Sup 
Ct  Rep.  224;  New  York,  C.  db  St.  L.  R.  Co. 
V.  Niebel,  131  C.  C.  A.  248,  214  Fed.  952; 
Michigan  C.  R.  Co.  v.  Vreeland,  227  U.  S. 
59,  57  L.  ed.  417,  33  Sup.  Ct.  Rep.  192,  Ana. 
Cas.  1914C.  176. 

1  Leave  granted  to  present  petition  for 
rehearing  herein  within  thirty  days,  on  mo- 
tion of  Mr.  George  H.  Lamar,  in  behalf  of 
counsel  for  the  ddfendant  in  error. 

June  12,  1016. 

141  V.  & 


1015. 


SPOKANE  &  I.  E.  R.  00.  y.  CAMPBELL. 


496^97 


Messrs.  E.  L.  Worthington,  LeWright 
Browning,  and  W.  D.  Cochran  also  united 
in  a  joint  brief  raising  the  question  of  the 
application  of  the  7ih  Amendment  to  the 
Federal  Constitution,  an  abstract  of  which 
will  be  found  in  connection  with  the  report 
of  Chesapeake  &  0.  R.  Co.  y.  Kelly,  ante, 
1117. 

Mr.  R.  S.  Dinkle  submitted  the  cause 
for  defendant  in  error.  Messrs.  Watt  M. 
Prichard  and  George  B.  Martin  were  on 
the  brief: 

The  instruction  of  the  lower  court  de- 
fining the  measure  of  damages  was  not 
erroneous. 

Chesapeake  &  0.  R.  Co.  y.  Kellj,  160  Ky. 
296,  169  S.  W.  736. 

Messrs.  R.  8.  Dinkle  and  George  B.  Mar- 
tin also  united  in.  a  joint  brief  raising  the 
question  of  the  application  of  the  7th 
Amendment  to  the  Federal  Constitution,  an 
abstract  of  which  will  be  found  in  connec- 
tion with  the  report  of  Chesapeake  &  0. 
R.  Co.  ▼.  Kelly,  ante,  1117. 

Mr.  Justice  Pitney  delivered  the  opin- 
ion of  the  court: 

This  was  an  action  under  the  employers' 
liability  act  of  Congress  of  April  22,  1908, 
as  amended  April  5, 1910  [496]  (chap.  149, 
35  SUt.  at  L.  65,  chap.  143,  36  Stat,  at  L. 
291.  Comp.  Stat  1916,  §  8662).  It  was 
brought  to  recover  damages  for  the  death 
of  Richard  Dwyer,  caused  by  the  negligence 
of  the  railroad  company,  while  he  was  in 
its  employ  in  interstate  commerce.  The 
sole  beneficiary  was  decedent's  widow,  who 
originally  qualified  as  administratrix  and 
brought  the  action,  but  has  died  since  the 
allowance  of  the  present  writ  of  error. 

Laying  aside  a  contention  based  upon 
the  7th  Amendment  to  the  Federal  Con- 
stitution, which  has  been  disposed  of  in 
Minneapolis  &  St.  P.  R.  Co.  y.  Bombolis, 
241  U.  S.  211,  ante,  961,  36  Sup.  Ct.  Rep. 
595,  the  only  question  raised  relates  to  the 
method  adopted  in  ascertaining  the  damages. 
The  jury  returned  a  verdict  for  $16,000. 
On  appeal  to  the  Kentucky  court  of  appeals 
it  was  insisted  that  this  amount  was  gross- 
ly excessive,  and  was  the  result  of  erroneous 
instructions  to  the  jury.  It  was  contend- 
ed that  the  verdict  of  $16,000  if  placed  at 
interest  would  yield  an  annual  income  great- 
er than  the  amount  the  widow  would  have 
received  had  she  lived,  and  would  yet  leave 
her  the  principal  to  dispose  of  at  the  time 
of  her  death.  The  court  overruled  this  con- 
tention, oa  the  authority  of  Chesapeake  & 
O.  R.  Co.  V.  Kelly,  160  Ky.  296,  169  S.  W. 
736,  where  the  same  court  held  that  in  such 
a  case  the  whole  loss  is  sustained  at  the 
60  li.  ed. 


time  of  intestate's  death,  and  is  to  be  in- 
cluded in  the  verdict  without  rebate  or 
discount.  A  reading  of  the  opinion  of  the 
court  of  appeals  in  the  present  case  (162 
Ky.  427,  172  S.  W.  918)  makes  it  evident 
that  it  was  only  upon  this  theory  that  the 
court  was  able  to  reach  a  conclusion  sus- 
taining the  verdict.  Since  we  have  held; 
in  Chesapeake  k  0.  R.  Co.  v.  Kelly,  this 
day  decided  [241  U.  S.  485,  ante,  1117,  36 
Sup.  Ct.  Rep.  630],  that  the  theory  is  erro- 
neous, it  results  that  the  judgment  hero 
und^r  review  must  be  reversed  and  the 
cause  remanded  for  further  proceedings  not 
inconsistent  with  this  opinion. 


[497]    SPOKANE    k   INLAND    EMPIRE 
RAILROAD  COMPANY,  PlflT.  in  Err., 

V. 

EDGAR  E.  CAMPBELL. 

(See  S.  C.  Reporter's  ed.  497-^10.) 

Trial  —  general  verdict  —  special  find- 
ings —  proximate  cause. 

1.  A  general  verdict  for  plaintiff  in  an 
action  by  a  railway  employee  to  recover 
damages  for  injuries  received  by  him  in  a 
head-on  collision,  in  which  the  jury  made 
special  findings  that  the  air  bk-akes  were 
insufficient  to  enable  him  to  control  the 
speed  of  his  train,  and  that  his  violation  of 
a  train  order  was  the  proximate  cause  of 
the  accident,  must  mean  not  only  that  the 
brake  equipment  was  defective,  but  that 
it  was  a  proximate  cause  of  the  collision, 
where  the  jury  were  instructed  that  before 
a  verdict  could  be  returned  for  the  plain- 
tiff, based  on  the  allegation  that  the  brakes 

Note. — On  the  applicability  of  the  com- 
merce clause  or  statutes  thereunder  to  street 
railways  or  to  interurban  roads — see  note  to 
Omaha  k  C.  B.  Street  R.  Co.  v.  Interstate 
Commerce  Commission,  46  LR.A.(N.S.) 
385. 

On  duty  and  liability  under  Federal  and 
state  railway  safetv  appliance  acts — see 
notes  to  Chicago,  M.  &  St.  P.  R.  Co.  v. 
United  States,  20  L.R.A.(N.S.)  473,  and 
Lake  Shore  &  M.  S.  R.  Co.  v.  Benscm,  41 
L.R.A.(N.S.)   49. 

As  to  constitutionality,  application,  and 
effect  of  the  Federal  employers'  liabilitv 
act — see  notes  to  Lamphere  v.  Oregon  R.  it 
Nav.  Co.  47  L.R.A.(N.S.)  38,  and  Seaboard 
Air  Line  R.  Co.  v.  Horton,  L.ILA.1915C,  47. 

As  to  duties  of  master  and  servant  in  re- 
gard to  rules  promulgated  for  the  safe  con- 
duct of  a  business — see  note  to  Nolan  v. 
New  York,  N.  H.  &  H.  R.  Co.  43  L.RJL 
305. 

As  to  the  relation  of  the  proximate-cause 
doctrine  to  the  rule  of  liability  of  a  master 
for  injuries  to  his  servant  caused  by  the 
combined  negligence  of  himself  and  a  fellow 
servant — see  note  to  Luts  v.  Atlantic  k  P. 
R.  Co.  16  L.IUA.  819. 

1125 


SUPRXaiB  OOUBT  OF  THE  UNITED  STATES.              Oor.  Ttt^ 

w«r«  dafsetire  and  out  of  repair,  thej  miut  trmin  brakes,  under  tba  Mfe^  applianM  Mti 

be  utlified,  from  a  prepondertace  of  the  of  March  2,  1893  (27  Stat,  at  L  SSI,  chap, 

tcatimon^,  not  only  that  th*  braka  were  In  196,  Comp.  Stat.  1913,  f  BOOS),  and  March 

fact   defectiTB.  or   out   of  repair,   but   that  2,  1903  (32  Stat,  at  L.  94S,cfa«!).  STCCon^ 

their  defective  eoodition  wae  the  direct  or  Stat.  19IS„  |  S813},  waa  owed  by  an  inter- 

froxiniBte  cauM  of  the  oolliaion.  state   interurban  electric  railwaj  oomoHn 

Var  other  cutst,  met  Trial,  Z.,  ID  DlCMt  Bop.  U)  a  motorman  who  had  wrongfully  ezpoied 

CL  1«(8.]  himeelf  to  danger  by  taking  oat  Ma  traia 

Brldcnce    —    anffldencr    —    prozlnutte  in  xiolation  of  orders. 

C*<>M-  [For  oCber  ciki,  mc  Muter  and   Serrant,  IL 

2.  Evidence  that  a  motorman,  after  dia-  ■■  2,  d,  1°  DlKnt  Bup.  Ct  isos-l 
covering  a  train  which  waa  approaching  Hftater  and  servant  —  safety  appUanoea 
from  the  oppoeito  direction  on  the  same  —  servant  Beting  outside  employment. 
track,  would  have  had  ample  time  to  avoid  0.  The  violation  of  a  train  order  by 
a  collieian  tiad  the  train-brake  equipmtint  the  motormui  ot  an  interstate  interurban 
been  adequate,  supports  a  finding  that  the  electric  railway  does  not  suspend  the  rcls- 
defective  brake  equipment  was  the  proxl-  tion  of  employer  and  employee  so  aa  to  ab- 
mate  cause  of  the  ensuing  cDlHalon.  solve  the  former  from  its  duty  toward  him 
(For    other   cues,    ««    ETldence,    XII.    b.    In  under  the  istety  appliance  acta  of  March  Z, 

Ul«eit  sop.  Ct.   1908.]  1893   ^z^  gtat.  at  L.  631.  chap.  198,  Comp. 

Evidence  —  Bufflciency  —  defecUve  safe-  gtat.  1913,  §  SB05),  and  Mari^  2,  1903  (32 

ty  appilanM.  Stat,  at  J-.  943,  chap.  B76,  Comp.  Stat.  1913. 

3.  The  jury  might  reasonably  infer  g  8613),  with  respect  to  power  or  train 
that  the  train-brake  equipment,  which  was  brakes. 

wrecked  in  a  collision,  was  defective  or  out  iFor  oihsr  cu«i.  ue  Hut«r  and  SerTant,  II, 

of  repair,  where,  notwithstanding  tcBtimony  ■,  2.  d.  In  DI^Ht  Snp.  CL  190a] 

that  the   brakes  were  inspected  and   found  Master  and  aerrant  —  employers'   Ua- 

in   perfect   order   before   tlie   train   started,  bllltj  —  safety    appliances  —  ezclu- 

there  is  evidence  that  when  the  motorman  slveness  of  Federal  recnlatlon. 

threw  the  air   drake  into  emergency,   the  7.  State  statutes  which,  like  2  Ida.  Bet. 

brakes  took  hold  and  then   "leaked  off"  lo  Code,  gf  6926,  G90S,  render  a  wilful  viola- 

aa  to  release  the  brakes,  and  there  waa  evi-  tion  or  omission  of  duty  on  the  part  of  a 

dence  which  would  have  warranted  the  jury  railway   employee   whereby   human   life  or 

in  finding  that  the  motorman  properly  ap-  safety  la  endangered  punishable   aa  a  mit- 

plied  the  air  wiien  600  feet  Or  more  from  demeanor,  and  make  wilful  or  negligent  con- 

the  place  where  the  collision  occurred,  and  duct  which  causes  a  collision  of  trains  and 

that  the  brakes  refused  t^i  work,  and  there  the   resulting   death   of   a   human   being  a 

was   expert   evidence   that   the  train   could  criminal   offense,   have   no   bearing   on   the 

have  been  stopped  Inside  of  300  feet  if  the  right  of  the  motorman  of  an  interstate  in> 

brakes  had  been  in  proper  order.  terurban   electric   railway  to  recover  dam- 

(For    other    cues,    tee    ErlUeuce,    XII.    d,    ]□  ages   from   his   employer   for   injuries   sus- 

Digest  Bop.  Ct.  1908.1  tained  in  a  oonisfon  because  of  defective 

Master  and  servant  —  aafety  appliances  power  or  train   brakes,   since  his  right  to 

—  interstate  electric  railway  —  power  recover   depends   upon    the   employers'   lia- 
'"«''«"■  bllity  act  of  April  22,  1908  (35  SUt  at  h. 

4.  Electric  motors  and  traina  drawn  by  fls,  chap.  149,  Comp.  SUt.  1B13,  8  8667), 
them  on  an  interstate  interurban  electric  snd  the  safe^  appliance  acts  of  March  2, 
railway  must  be  deemed  to  have  been  1893  (87  SUt.  at  L.  631,  chap.  196,  Comp. 
brought  within  the  provisions  of  the  aafety  sut  1913,  §  8e05),  and  March  2,  1903  (32 
appliance  act  of  March  2,  1883  (27  SUt.  stat.  at  L.  943,  chap.  978,  Comp.  SUt.  1913, 
at  L.  631,  chap.  196,  Comp.  SUt  1913,  |  BB13),  to  which  all  sUM  k-gislatlon  af- 
I  8806),  respecting  power  or  train  brakes  fecting  the  subject-matter  must  yield. 

on  locomotives  and  trains,  by  the  deolara-  [For  other  cawi,  see  Muter  sod  Serrant,  IL 

Uon  of  the  amendatory  act  of  March  2,  1903  «.  Z.  d.  In  DUest  Sup.  Ct  J008-] 

(32  SUt.  at  L.  943,  chap,  976,  Comp.  Stat.  Master  and  servant  —  employera*   Ila- 

1913,  I  8613),  t  1,  that  the  provisions  re-  bllltj  —  safety  appliances  —  contr I bn- 

latlng  to  train  brakes  shall  be  held  to  ap-  tory  negligence  —  concnrrlng  proxl- 

ply  to  all  trains,  locomotives,  tenders,  cars,  mate  canaea. 

and  similar  vehicles  used  on  any  railroad  8.  A  recovery  may  be  had  under   the 

engaged  in  interaUte  commerce,  and  to  all  Federal  employers'  liability  act  of  April  22, 

other  locomotives,  tenders,  cars,  and  similar  1908   (35  SUt.  at  L.  66,  chap.  149,  Comp. 

vehicles  used  in  connection  therewith,  and  SUt.   1913,  |  86S7),  where  the  emplovers 

of  S  2,  that  whenever  any  train  is  operated  contributory    negligence    and    the    railway 

with  power  or  train  brakes,  not  leas  than  company's  violation  of  the  safety  applianee 

60  per  cent  of  the  cars  of  such  train  shall  acU  of  March  2,  1893   (27  SUt.  at  L.  631, 

have  their  brakes  used  and  opecated  by  the  chap.  196,  Comp.  SUt.  1913,  g  6606),  and 

engineer    of    the    locomotive    drawing    the  March  2,  1903    (32   SUt.  at  L.  943,  chap, 

train.  976,  Comp.  SUt.  1913,  S  8613),  are  eon- 

(For  other  cases,  see  Muter  and  Servant,  II.  curring  proximate   eauaes,   in   view   of  the 

a.  a,  d.  In  Digest  Hop.  Ct  19091  provUion  of  8  1  of  the  employers'  lUbili^ 

Master  and  servant  —  safety  appliances  act,  imposing  a  liability  for  an  injury  to 

—  emplojee  dlsoberlng  orders.  an  employee  resulting  "in  whole  or  in  part" 
0.  The  duty  with  respect  to  power  and  frran  the  negligence  of  any  of  the  officer^ 

4111  341  U.  S. 


1915. 


SPOKANE  &  L  E.  R.  00.  ▼.  CAMPBELL. 


agents,  or  employees  of  the  carrier,  or  by 
reason  of  any  defeet  or  insufficiency  due  to 
its  negligence  in  its  cars,  engines,  ap- 
pliances, or  other  equipment*  and  of  the 
proviso  to  I  3  of  that  act,  that  no  employee 
Injured  or  killed  shall  be  held  to  have  been 
guilty  of  contributory  n^ligence  in  any 
case  where  a  violation  of  the  safety  ap- 

Sliance  act  "contributed"  to  the  injury  or 
eath  of  such  employee. 
(For  other  cases,  see  Matter  and  Servant,  II. 
a ;  ProzUnate  Cause,  in  Digest  Sop.  Ct.  1908.] 

[No.  325.] 

Argued  April  26,  1916.    Decided  June  12, 

1916. 

IN  ERROR  to  the  United  SUtes  Circuit 
Court  of  Appeals  for  the  Ninth  Circuit 
to  review  a  judgment  which  affirmed  a  judg- 
ment of  the  District  Court  for  the  Eastern 
District  of  Washington  in  favor  of  plain- 
tiff in  an  action  under  the  Federal  employ- 
ers' liability  and  safety  appliance  acts.  Af- 
firmed. 

See  same  case  below,  133  C  C.  A.  370,  217 
Fed.  618. 

The  facts  are  stated  in  the  opinion. 

Mr.  \¥ill  O.  Graves  argued  the  cause, 
and,  with  Messrs.  F.  H.  Graves  and  B.  H. 
Kizer,  filed  a  brief  for  plaintiff  in  error: 

Judgment  should  have  been  entered  foi 
defendant  upon  the  special  findings 

Sudden  ▼.  Morse,  56  Wash.  372,  104  Pac 
645;  Cameron  ▼.  Stack-Gibbs  Lumber  Co. 
68  Wash.  543,  123  Pac.  1001;  Mercier  v. 
Travelers'  Ins.  Co.  24  Wash.  154,  64  Pac. 
158;  HobartT.  Seattle,  32  Wash.  332,  73 
Pac  383;  Abby  ▼.  Wood,  43  Wash.  379,  86 
Pac.  558;  Crowley  ▼.  Northern  P.  R.  Co. 
46  Wash.  85,  89  Pac.  471 ;  Evans  ▼.  Ore^n 
&  W.  R.  Co.  58  Wash.  434,  28  L.R.A.(N.S.) 
455,  108  Pac.  1095;  Pepperall  v.  City  Park 
Transit  Co.  15  Wash.  176,  45  Pac.  743,  46 
Pae.  407. 

The  Jury's  findings  establish  that  Camp- 
bell was  not  in  the  course  of  his  employ- 
ment when  he  was  injured,  and  consequently 
judgment  could  not  be  entered  for  him  upon 
the  cause  of  action  pleaded  and  established 
by  the  general  verdict. 

North  Carolina  R.  Co.  r.  Zachary,  232  U. 
8.  248,  260,  58  L.  ed.  591,  596,  34  Sup.  Ct. 
Rep.  305,  Ann.  Cas.  1914C,  159,  9  N.  C.  C. 
A.  109;  St.  Louis  &  S.  F.  R.  Co.  ▼.  Conarty, 
238  U.  8.  243,  249,  59  L.  ed.  1290,  1292,  35 
Sup.  Ct  Re^.  785;  Central  Vermont  R.  Co. 
▼.  White,  238  U.  S.  507,  59  L.  ed.  1433,  35 
Sup.  Ct.  Rep.  865,  Ann.  Cas.  1916B,  252, 
9  N.  C.  C.  A.  265;  Reese  v.  Philadelphia  & 
R.  R.  Co.  239  U.  S.  463,  ante,  384, 36  Sup.  Ct. 
Rep.  134;  Seaboard  Air  Line  R.  Co.  ▼.  Hor- 
ton,  238  U.  S.  492,  LJELA.1915C,  1,  58  L 
ed.  1062,  34  Sup.  Ct  Rep.  635,  Ann.  Cas. 
1915B,  475,  8  N.  0.  a  A.  834;  St  Louis, 
60  Ii.  ed. 


1 1.  M.  &  8.  R.  Co.  T.  MoWhirter,  229  U.  S. 
'  265,  67  L.  ed.  1179,  83  Sup.  Ct  Rep.  858; 
4  Thomp.  N^.  2d  ed.  g  8749;  Williamson 
▼.  Berlin  MUls  Co.  Ill  C.  C.  A.  185,  190 
Fed.  1;  Baltimore  &  0.  R.  Co.  r.  Doty,  67 
G.  C.  A.  38,  133  Fed.  866;  Burnett  v.  Roa- 
nc^e  Mills  Co.  152  N.  C.  35,  67  S.  E.  30; 
Chesapeake  &  0.  R.  Co.  ▼.  Bamesy  132  Ky. 
728,  117  a  W.  261;  Harris  r.  United 
S.  S.  Co.  75  N.  J.  L.  861,  70  AtL  155;  Mo- 
Gill  T.  Maine  &  N.  H.  Granite  Co.  70  N.  H. 
125,  85  Am.  St  Rep.  618,  46  AtL  684;  Lind- 
quist  ▼.  Sling's  Crown  Plaster  Co.  139  Iowa, 
107,  117  N.  W.  46;  Martin  ▼.  Kansas  City, 
M.  &  B.  R.  Co.  77  Miss.  720,  27  So.  646; 
Pioneer  Min.  k  Utg,  Co.  r.  Talley,  152  Ala. 
162,  12  L.RJL(N.S.)  861,  43  So.  800;  Du- 
vall  ▼.  Armour  Pacldng  Co.  119  Mo.  App. 
150,  95  S.  W.  978;  LouisvUle  &  N.  R.  Co. 
V.  Holland,  164  Ala.  73,  137  Am.  St  Rep. 
25,  51  So.  365;  Buckley  ▼.  New  York  C.  & 
H.  R.  R.  Co.  142  App.  Div.  8,  126  N.  Y. 
Supp.  480;  Bryant  ▼.  Fissell,  84  N.  J.  L. 
72,  86  Atl.  458,  8  N.  C.  C.  A.  585;  Reimers 
v.  Proctor  Pub.  Co.  85  N.  J.  L.  441,  89  Atl. 
931,  4  N.  C.  C.  A.  738;  Anderson  ▼.  Mis- 
souri P.  R.  Co.  95  Neb.  358,  L.RJ^.  — ,  — , 
145  N.  W.  842;  Hobbs  ▼.  Great  Northern  R. 
Co.  80  Wash.  678,  L.R.A.1915D,  503,  142 
Pac  20;  Vanordstrand  ▼.  Northern  P.  R. 
Co.  86  Wash.  665,  151  Pac.  89;  Tope  v. 
HiU's  Plymouth  Co.  102  L.  T.  N.  S.  632,  3 
B.  W.  C.  C.  339;  Martin  ▼.  Fullerton  [1908] 
S.  C.  1030;  Jenkinson  ▼.  Harrison,  A.  &  Co. 
4  B.  W.  C.  C.  194;  Losh  ▼.  Richard  Evans  & 
Co.  19  Times  L.  R.  142,  51  Week.  Rep.  243; 
Marriott  v.  Brett  &  Beney,  5  B.  W.  C.  C. 
145;  Whelan  ▼.  Moore,  43  Jr.  L.  T.  205,  2 
B.  W.  C.  C.  114;  Smith  ▼.  Lancashire  &  Y. 
R.  Co.  [1899]  1  Q.  B.  141,  68  L.  J.  Q.  B. 
N.  S.  51,  47  Week.  Rep.  146,  79  L.  T.  N.  S. 
633,  15  Times  L  R.  64;  Williams  v.  Wigan 
Coal  &  I.  Co.  3  B.  W.  C.  C.  65;  Reed  v. 
Great  Western  R.  Co.  [1909]  A.  C.  31,  78  L. 
J.  K.  B.  N.  S.  81,  99  L.  T.  N.  S.  781,  25 
Times  L.  R.  36,  58  Sol.  Jo.  31,  2  B.  W.  C.  C. 
109;  Morrison  r.  Clyde  Nav.  Trustees 
[1909]  8.  C.  59,  49  Scot  L.  R.  40;  Revie  v. 
Gumming  [1911]  8.  C.  1032,  48  Scot  L.  R. 
831;  Wemyss  Coal  Co.  ▼.  Symon  [1912] 
S.  C.  1239,  49  Soot  L.  R.  921;  Scalzo  ▼. 
Columbia  Maccaroni  Factory,  17  B.  O.  201. 

Campbell's  criminal  act  waa  both  out  oi 
the  or^ary,  and  inconsistent  with  his  duty 
to  his  employer;  and  therefore  in  its  com- 
mission he  was  beyond  the  scope  of  his  em- 
ployment 

Seaboard  Air-Line  R.  Co.  ▼.  Chapman,  4 
Ga.  App.  706,  62  8.  E.  488;  Ll<^d  T.  North 
Carolina  R.  Co.  151  N.  O.  536,  45  IJLA. 
(N.S.)  378,  66  S.  E.  604. 

In    construing    the    British    workmen's 
compensation  act,  the  English  courts 
frequently    had   occasion   to   remar 


SUPREME  OOUBI  07  THE  UNITED  STATES.              Ooi.  laa, 

otrvfull;  deflno  the  distinction  betwem  im-  PhiUdelphik  4  B.   R.   Co.  SS9  U.  6.  Ui, 

proper  mi^  done  in  the  coutm  of  an  em-  ante,  8M,  36  Sup.  Ct  Hep.  184. 

ployment,  whioh  do  not  debar  recovery,  and  Tbe  Federal  acta  made  radical  change*  ia 

conduct  BO  unrelated  to  the  employment  aa  tbe  dutj  owed  bj  a  niaater  to  hia  acrvaal^ 

to  be  without  ita  pale,  which  doea  bar  re-  but  the  acta,   in  reaped  ot  all  ineideotal 

oattry.  mattera  not  apedBcaJlj  deftlt  with,  are  to 

Plumb  T.  Cobden  Flour  Milla  Oo.  [1S14]  be  conetrued  in  the  light  <rf  Federal  de«i- 

A.  a  62,  S3  L.  J.  K.  B.  N.  8.  107,  IDQ  L.  lioni  made  prior  to  their  enactment. 

T.  N.  S.  7S9,  30  Timea  L.  R.  174,  SB  Bol.  Jo.  Central  Vermont  R.  Ca  t.  WUte,  238  U. 

IS4,  61  Boot.  L.  R.  861,  7  B.  W.  C.  0.  1,  8.  SOT,  SB  L.  ed.  1433,  3S  Snp.  Ct.  Rep.  BS5, 

Ann.  Caa.  1914B,  40S;   Bamei  t.  Nunn^j  Ann.  Caa.  19163,  252,  B  N.  C.  C.  A.  265. 

Colliery  Co.  [IB12J  A  C.  44,  81  L.  J.  E.  B.  Such,  too,  ia  the  eiTect  of  the  UcWhirtw, 

N.  S.  213,  lOS  L.  T.  N.  8.  061,  28  Timea  Horton,  and  Reeae  Caaea;   Patton  t.  Texas 

L.  R.  136,  6S  Sol.  Jo.  ISB,  40  Scot.  L.  B.  &  P.  R.  Co.  179  U.  S.  361,  4S  L.  ed.  361, 

688,   S   B.   W.   C.  C.   196;    Parker  t.  Earn-  21  Sup.  Ct.  Rep.  27G,  merely  aUtes  a  rule 

brook    [1S12]    W.  N.  20S,  107   L.  T.  N.   S.  of  evidence;  that  in  an  action  by  a  iervaat 

240,  60  Sol.  Jo.  760,  S  B.  W.  C.  C.  608.  to  recover  damagei  for  a  breach  of  the  mas- 

The  worda  "locomotive"  and  "locomotive  ter'a  duty  to  him,  it  is  not  sufficient  that 

engine"  mean  to  the  average  man  a  steam  it    appears    that    the    master    may    have 

locomotive.  breathed  hia  duty,  and  in  consequence  the 

Whibehouae    r.    Grand    Trunk    R.    Co.    2  servant    was    injured;    the    evidence    must 

Haskell,  189,  Fed.  Caa.  No.  17,565.  point  to  the  fact  that  he  did  breach  it,  aad 

Common  or  popular  words  when  used  in  that    the    injury    complained    of    resulted 

a  statute  are  to  be  understood  in  a  popular  from  tbe   breach.     It   baa   been   uniformly 

aense.  followed  by  the  Federal  courts  aa  a  mis  of 

Sutherland,  Stat.  Conetr.  |  247;  Hartford  evidence  under  t>oth  Federal  and  state  lia- 

T.  Northern  P.  K.  Co.  91  Wia.  374,  84  N.  W.  bility  acU. 

1033.  Chicago  t  N.  W.  R.  Co.  t.  O'Brien,  67  C. 

The  u*e  in  statutes  relating  to  railroad  C.  A,  421,  132  Fed.  593;  Shandrew  v.  Cbi- 

operation  ot  the  worda  "loccwiotive,"  "loco-  cago,  St.  P.  H.  ft  0.  R.  Co.  73  C.  C.  A.  430, 

motive   engine"  or   "looomotive  engineer,"  1^2  Fed.  320;  Lyddy  v.  Louisvillo  ft  N.  IL 

indieatos    the   legislative   intention    to    re-  Co.  117  C.  C.  A.  20,  197  Fed.  S24;  Smitk 

strict  the  operation   ol  the  statute  to  the  v.  lllinoii   C.  R.  Co.   119  C.  C.  A.  33,  209 

uaual  steam  railroad.  Fed.  553;  Norfolk  ft  W.  B.  Co.  v.  Eauser, 

Birmingham  R.  Light  ft  F.  Co.  v.  Ozburn,  126  C.  C.  A.  167,  211  Fed.  667 ;   Midland 

4  AU.  App.  390,  56  So.  69B;    Qalveaton  &  Valley  R.   Co.  v.   Fulgham,   I.R.A.   — ,  — , 

W.  R.  Co,  V.  Oalvestcm  Electric  R.  Co.  58  104  C   C.   A.  161,   181   Fed.   91;   Crucibb 

Tex.  Civ.  App.  427,  123  S.  W.  1140;  Kam-  Steel  Forge  Co.  v.  Moir,  135  C.  C.  A.  49, 

manu  v.  St.  Louii  ft  N.  E.  R.  Co.  173  111.  219  Fed.  161,  8  N.  C.  C.  A.  1000. 

App.  277;  Conover  v.  Public  Service  R.  Co.  I^e  state  courta,  too,  hold  that  the  lia- 

80  N.  J.  L.  681,  76  Atl.  187;  Indianapolis  bility  acts.  Federal  or  aUte,  have  not  dia- 

ft   Q.   Rapid  Transit  Co.  v.  Andis,  33   Ind.  pensed  with  the  necessity  for  conneetiDg  bj 

App.  625,  72  N.  E.  146;  Fallon  v.  West  End  evidence,    not    surmise,    tlie    breach   of   tks 

Street  R.  Co.  171  Maaa.  249,  60  N.  E.  630,  master's  duty  with  the  servant'*  injury. 

4  Am.   Neg.  Rep.   288;    Mudd  v.  Missouri,  Bowers  v.  Southern  R.   Co.  ID   Gl  App. 

K.  ft  T.  R.  Co.  146  Uo.  App.  388,  124  8.  W.  367,  73   S.  £.  677;    South   Covington  ft  C 

69;  Norfolk  ft  P.  Traction  Co.  v.  Ellington,  Street  R.   Co.  v.   Finan,  163  Ky.  340,  IH 

108  Va.  246,  17  L.R.A.(N.S.)    117,  61  S.  E.  8.   W.  742;   Scroggins  v.  Atlantic  ft  G.  P. 

779;    Cleveland  ft  E.  R.  Co.  v.  Somers,  24  Cement    Co.    17S    Ala.    213,    60    So.    171; 

Ohio  C.  C.  67.  WrighUville  ft  T.  R.  Co.  v.  T<Hnpkina,  9  G*. 

When  Campbell  admita  that  the  failure  ■*??■  "*'  "">  ^-  ^-  '^i  ^ohjiam  v.  Nash- 

might  have  been  due  to  the  breaking  of  any  "'"*•  C.  ft  8t.  L  R.  Co.  177  Ala.  284,  61 

of  a  half  Ao^  parts  of  tbe  system,  occa-  ^^  p"' U^  aIT  «3R^T.''^<^''  ^  * 

sioocd  by  his  applying  the  brake,  improp-  ^-  ^-  ""  ***■  '>'^'  ^^  ^  ^• 

erly,  cerUinly  there  is  no  liability  but  that  ,  ^   "   «otion   by   a   servant   to   recow 

Of  an  insurer  under  which  the  company  can  f-V^T"  '""^  *"■  ^T^.  '**  .V*^"™"  "* 

be  held.     The  insurer   idea   is  exploded  by  ^"""''  "^  P^-^Ptio"  f  n^Ugeace  ar«« 

Di    I            T    1.    >  o    Ti    n           ..  .-.  .       '  *''°™  ^lie  mere  failure  of  uipbaiioea,  bnt  to 

220  U.  5.  M6.  67  I.  «I.  1179.  33  Sup.  «.  ^    j,,^    „    „,,'  .pp,^^    4™    t,  lb. 

Rep.  868;  Seaboard  Air  Line  K.  Co.  t.  Hot-  niMter's    neglect.      Like    thoM    OM*    i 

ton,  233  U.  S.  482,  68  L.  ed.  1082,  I.IU.  Lo„ney  T.   MetropoUtin  B.  Co.  200  U.  >. 

ISieC,  1,  34  Sup.  Ct.  Kep.  636,  Ann.  Ce«.  480,  60  L.  ed.  664,  26  Sup.  Ct.  Bop.  303,  II 

1816B,  476,  8  N.  C.  a  A.  834;   Beeoo  t.  Am.  Stg.  Bop.  827,  In  wUeli  it  ma  nidi 

""  Kin.  •. 


I91S.  SPOKANE  &  I.  B.  R.  CO.  T.  CAMPBELL. 

'^o  bold  a  nuiter  responsible,  a  servant  a  character  to  give  KTOund  for  a  reaaoiiable 
must  Rhow  that  tha  appliance*  and  instm-  infereDce  that,  it  due  care  had  bee*  en- 
meDtallties  fumiihed  were  deleetlTe.  A  plowed  hf  tha  part;  charged  with  care  in 
defect  cannot  be  inferred  from  13ie  mere  (act  the  premises,  the  thing  that  happened  amiia 
of  an  injury.  Here  must  be  some  sub-  would  not  have  happened. 
itantiTB  proof  of  the  negligence.  Enowl-  Sweeney  t.  Erring,  228  tJ.  B.  233,  23B,  S7 
edge  of  the  defect  or  some  omission  of  dnty  L.  ed.  BIG,  819,  33  Sup.  Ct  Hep.  41S,  Ann. 
in  regard  to  it  must  be  shown."  Cas.  1914D,  90S. 

Texas  ft  P.  B.  Co.  t.  Barrett,  168  IT.  B.  It  is  only  applicable  when  the  nature  of 
017,  41  L.  ed.  1136,  IT  Sup.  Ct.  Rep.  707,  the  accident  points  stronglj  to  ita  cause  be- 
1  Am.  Neg.  Rep.  745;  Fatton  t.  Texas  k  ing  the  defendant's  negligence,  and  aa  wdl 
P.  R.  Co.  179  U.  S.  SS8,  4S  L.  ed.  361,  21  i^Tcludes  an  inference  that  it  waa  otlierwiaa 
Sup.  Ct.  Rep.  27S.     See  also  Midland  Val-    occasioned. 

l«y  E.  Co.  T.  Fulgham,  L.RjL  — ,  — ,  104  Byen  t.  Cam^e  Steel  Co.  IB  L.R-A. 
C.  C.  A.  151,  181  Fed.  93.  (N.S.)  214,  86  C.  C.  A.  347,  169  Fed.  347; 

A  statute  whicb  simply  imposes  a  new  Lucid  t.  E.  I.  Du  Pont  De  Nemours  Pow- 
obligation  upon  an  employer,  or  Tenders  him  der  Co.  L.RJL  — ,  —,  118  C.  0.  A.  61,  199 
liable    for    the   n^ligence    of    an    employee    Fed.  377. 

who  would,  apart  from  ita  prariaions,  have  There  was  no  eridence  that  the  bralces 
been  rq^arded  as  a  mere  coservant  of  the  were  defective  unless  the  case  is  based  upon 
injured  person,  leaves  upon  the  plaintifT  the  safety  appliance  act.  Campbell's  con- 
tlie  burden  of  proving  the  existence  of  such  tributory  negligence,  which  at  least  is  In- 
eulpability  a*  will  entitle  him  to  maintain  disputable,  waa  a  complat«  defense  under 
the  action.  that  act. 

4  Labatt,  Mast.  &  S.  2d  ed.  p.  4902.  Reese  v.  Philadelphia  &  R.  R.  Co.  239  U. 

The  questions  of  negligence  and  of  proz-  S.  463,  ante,  384,  36  Sup.  Ct  Rep.  134; 
imato  cause  are  still  to  be  determined  ae-  Seaboard  Air  Line  v.  Horton,  233  U-  S. 
cording  to  the  general  existing  rules  on  492,  68  L.  ed.  1062,  L.R.A.1916C,  1,  34  Sup. 
that  subject.  Ct.  Rep.  636,  Ann.  Cfts.  19168,  476,  8  N.  C. 

Bowers  v.  Southern  B.  Co.  10  Oa.  App.  C  A.  834;  Schlemmer  t.  Buffalo,  R.  ft  P. 
S67,  73  S.  E.  677.  R.  Co.  220  U.  8.  E90,.S&  L.  ed.  696,  31  Sup. 

Under  the  Federal  statute  the  plaintiff  Ct  Rep.  661;  Minneapolis,  St.  P.  ft  S.  Ste. 
must  show  negligence  under  the  rules  ordi-  M.  R.  Co.  t.  Popplar,  237  U.  S.  369,  69  L. 
narily  applicable  to  cases  of  that  character,    ed.  1000,  36  Sup,  Ct  Rep.  609. 

South  Covington  ft  C.  Street  R.  Co.  v.  The  cue  is  like  that  of  a  iUte  in  which 
Finan,  153  Ky.  340,  156  B.  W.  743.  the  common-law  rule  of  negligence  prevails. 

The  rule  re*  xpta  loguilur  is  merely  one  but  a  Htatnte  has  been  passed  affecting  the 
of  evidence  (Sweeney  v.  Erving,  22S  U.  S.  rule.  The  fact  that  a  plaintiff  might  have 
233,  67  L.  ed.  816,  33  Sup.  Ct.  Rep.  416,  maintained  a  common-law  action  doei  not 
Ann.  Cas.  19I4D,  SOS),  and  there  being  deprive  him  of  the  right  to  sue  undmr  tha 
nothing  in  the  Federal  acts  to  iudicato  an  statute,  but,  If  he  counta  on  common-law 
intent  to  affect  rules  of  evidence,  it  has  been  nf^ligence,  he  cannot  claim  the  benefits  of 
held,  wherever  the  question  has  been  pre-  the  statute. 
senUd,  that  they  remain  aa  before.  C  I^batt,  Mart,  ft  B.  2d  ed.  |  1667;  Welch 

Smith  V.  Illinois  C.  R.  Co.  119  C.  C.  A.  t.  Waterbury,  136  App.  Div.  3)G,  120  N. 
as,  200  Fed.  653;  Weiss  v.  Belt  R.  Co.  186  Y.  Supp.  10S9;  Fleiaher  v.  Carsten*  Pack- 
lU.  App.  43;  Chesapeake  ft  0.  R.  Co.  v.  Ing  Co.  81  Wash.  241,  142  Fac.  694;  Wiaer 
Walker,  159  Ky.  237,  167  B.  W.  128;  Ridge  v.  Northwestern  Improv.  Co.  86  Waeh.  438, 
T.  Norfolk  Southern  R.  Co.  167  N.  C,  610,    160  Pac  019. 

v-^'  ~'^~^  ??  1  w'f'o^^"^r^'-  M'-  H.  I*WBd«  M«ry  argued  tha 
^«     m"  ,  iA   w    I  ^  w'     "  ^Ti    <*««.  '"d,  with  Messrs.  B.  H.  Bdden,  W. 

576;    NorfoU.  4  W^  R^  Co.  v    Hauser    12»    ^  '^^  ^    ^  ^  ^^  ^  ^.^^ 

C.    C.    A.    167,    211    Fed.    6B7;    Lyddy    v.    .  _  j..' j._,.  •-  „„,. 

Louiaville  ft  N.  R.  Co.  117  C.  C.  A.  20,  197  '"^ ,  4^!!^  1^™!  Court  i.  ««.id«. 
Fad.  624;  Courtney  v.  New  York,  N.  E.  ft  ,  Th«  F«>'«»1  S^P'""*  ^^  m,  J^ 
H.  R.  Co.  213  Fed.  388;  PennsylvanU  R.  ^t^'  T"'  *'"  ""•*,  K°  ^*^^^  "f^* 
Co.  V.  Knox,  134  C.  C.  A.  426,  218  Fed.  748;  '»^"  ">*»  *«  '"'^^^'  ''''•"»'  ?•*•» 
Hdm  V.  Cincinnati  K.  O.  4  T.  P.  R.  Co.  ''^^  •■*'  ^**^  committed  In  reUtion  to  tha 
168  Ky.  240,  160  S.  W.  946;  Cincinnati,  N,  federal  employers'  liability  act 
O.  ft  T.  P.  R.  Co.  V.  Goldston,  166  Ky.  410,  Yaioo  ft  M.  Valley  R.  Co.  v.  Wrij^t,  235 
IBl  S.  W.  246.  U.  S.  376,  69  L.  cd.  277,  36  Sup.  Ct  Rep. 

In  any  event,  res  ipto  Icquitar  is  only  130;  Chicago  Junetion  R.  Co.  t.  King,  222 
applicable  where  the  eircnmstauces  of  the  V.  S.  222,  66  L.  ed.  173,  32  Sup.  Ct  Rep. 
oeeurrenee  that  baa  eansad  the  lujuiry  are  of  79;  Seaboard  Air  Lin*  R.'Co.  t.  Moora,  SSft 
■0  Zi.  ed.  Ill* 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Ooz.  Tmc, 


U.  S.  433,  67  L.  ed.  907,  33  Sup.  Ct  Rep. 
680;  Chicago,  R.  L  ft  P.  R.  Co.  y.  Brown,  229 
U.  S.  317,  67  L.  ed.  1204,  33  Sup.  Ct.  Rep. 
840,  3  N.  C.  a  A.  826;  Southern  R.  Co.  ▼. 
Ckuld,  233  U.  &  677,  68  L.  ed.  1100,  34  Sup. 
Ct  Rep.  696;  Bdm  ▼.  Campbell,  206  U.  S. 
403,  61  L.  ed.  867,  27  Sup.  Ct.  Rep.  602. 

We  mutt  look  to  the  object  and  purpose 
of  the  act  of  Congress  in  the  passage  of  the 
act  in  question,  in  order  to  arrive  at  a 
true  conclusion  as  to  the  application  of  the 
act. 

Schlemmer  ▼.  Buffalo,  R.  &  P.  R.  Co.  206 
U.  S.  1,  61  L.  ed.  681,  27  Sup.  Ct.  Rep.  407. 

The  safety  appliance  act  has  been  given 
a  liberal  construction  by  Federal  courts, 
that  the  intent  of  Congress  might  be  effec- 
tuated. 

Chicago,  M.  ft  St.  P.  R.  Co.  r.  United 
States,  20  L.RA.(N.S.)  473,  91  C.  C.  A. 
373,  166  Fed.  423;  Johnson  y.  Southern  P. 
Co.  196  U.  S.  1,  49  L.  ed.  363,  26  Sup.  Ct. 
Rep.  168,  17  Am.  Neg.  Rep.  412;  United 
States  y.  Chicago  ft  N.  W.  R.  Co.  167  Fed. 
616;  Winkler  y.  Philadelphia  ft  R.  R.  Co. 
4  Penn.  (Del.)  80,  63  Atl.  90;  Spokane  ft 
I.  £.  R.  Co.  y.  United  States,  L.RA.  — ,  — , 
127  C.  C.  A.  61,  210  Fed.  243. 

Some  state  decisions  are  in  point  and 
may  be  of  assistance  to  the  court  in  deter- 
mining the  question.    . 

Kent  y.  Jamestown  Street  R.  Co.  206  N. 
Y.  361,  98  N.  £.  664. 

If  it  should  be  held  that  the  finding 
actually  made  as  to  insufficiency  of  brakes 
to  control  the  speed  of  the  train  imme- 
diately prior  to  the  accident,  and  the  find- 
ings presumed,  are  inconsistent  with  the 
finding  that  the  leaving  of  Coeur  d'Alene, 
in  violation  of  his  orders,  by  plaintiff,  was 
the  proximate  cause  of  the  accident  (which 
inconsistency  is  assumed  for  the  purpose  of 
argument  only),  the  findings  would  neutral- 
ize each  other,  and  the  general  verdict  must 
controL 

Farmers'  Say.  Bank  v.  Forbes,  161  Iowa, 
627,  132  N.  W.  69;  Conwell  v.  Tri-City  R. 
Co.  136  Iowa,  190,  112  N.  W.  646;  Indian- 
apolis Southern  R.  Co.  v.  Tucker,  61  Ind. 
App.  480,  98  N.  E.  431;  Morrow  v.  Bone- 
brake,  84  Kan.  724,  34  L.R.A(N.S.)  1147, 
116  Pae.  686;  Seigel,  W.  ft  C.  Livestock 
Commission  Co.  v.  Jc^son,  4  Okla.  99,  44 
Pac.  206;  Daube  v.  Philadelphia  ft  R.  CkMil 
ft  I.  0>.  23  C.  C.  A.  420,  46  U.  S.  App.  691, 
77  Fed.  713. 

In  order  for  moti<m  for  judgment  upon 
special  interrogatories  to  be  granted,  the 
inconsistency  between  special  findings  and 
the  general  verdict  must  be  irreconcilable. 
Fishbaugh  v.  Spunaugle,  118  Iowa,  337, 
92  N.  W.  68 ;  Drake  v.  Justice  Gold  Min. 
0>.  32  Colo.  269,  76  Pac  913;  Tarashonsky 
y.  IllinoU  C.  R.  Co.  139  Iowa,  709,  117  N. 
1130 


W.  1074;  MeCorkle  v.  MaUory,  30  Wash. 
632,  71  Pac  186. 

Special  findings  must  be  findings  of  ulti- 
mate facts,  and  not  mixed  questions  of  law 
and  fact,  or  conclusions,  and  the  court 
should  disregard  any  finding  which  is  a 
conclusion. 

Fishbaugh  v.  Spunaugle,  118  Iowa,  337,  92 
N.  W.  68;  Lake  Shore  ft  M.  S.  R.  Co.  v. 
Mcintosh,  140  Ind.  261,  38  N.  E.  476. 

There  is  a  wide  distinction  between  a 
proximate  cause  and  a  cause  which  proxi- 
mately contributed  to  an  injury,  and  this 
distinction  is  recognized  by  Congress  in  the 
employers'  liability  act,  and  by  the  courts 
in  interpreting  similar  statutes. 

McFail  v.  Barnwell  County,  67  S.  C.  294, 
36  S.  E.  662;  Wragge  v.  South  Carolina  ft 
G.  R.  Co.  47  S.  C.  106,  33  LJLA.  191,  68 
Am.  St.  Rep.  870,  26  S.  E.  76. 

There  can  be  a  proximate  cause  and  a 
contributing  cause  to  an  injury,  and  two  or 
more  acts  of  negligence  may  proximately 
contribute  to  the  same  injury. 

Chicago  ft  N.  W.  R.  Co.  v.  Prescott,  23 
L.R.A.  664,  8  C.  C.  A  109,  19  U.  S.  App. 
291,  69  Fed.  237;  Andrews  v.  Mason  City 
ft  Ft.  D.  R.  Co.  77  Iowa,  669,  42  N.  W.  613; 
S^J^SS^^d  ^«  Minnei^olis  ft  St  L.  R.  Co. 
38  Minn.  66,  36  N.  W.  672;  Corey  v.  North- 
em  P.  R.  Co.  32  Minn.  467,  21  N.  W.  479; 
(Dhoctaw,  0.  ft  O.  R.  Co.  v.  Holloway,  191 
U.  S.  334,  48  L.  ed.  207,  24  Sup.  Ct.  Rep. 
102,  16  AuL  Neg.  Rep.  236. 

The  defenses  of  asstimption  of  risk  and 
contributory  negligence  are  not  available  to 
the  company  under  the  act  of  Congress. 

Grand  Trunk  Western  R.  Co.  v.  Lindsay, 
120  C.  C.  A  166,  201  Fed.  844;  Louisville 
ft  N.  R.  Ck>.  V.  Wene,  121  C.  C.  A  246,  202 
Fed.  887. 

The  finding  that  disobedience  of  orders 
was  the  proximate  cause  of  the  injury  does 
not  negative  the  implied  finding  that  the 
failure  of  brakes  to  work  immediately  prior 
to  the  oollisicm  was  a  cause  contributing  to 
the  injury. 

Dendng  t.  Merchants'  Cotton-press  ft 
Storage  Co.  90  Tenn.*306,  13  LJtA.  618,  17 
S.  W.  89;  Atchison,  T.  ft  S.  F.  R.  Co.  v. 
Calhoon,  218  U.  8.  1,  63  L.  ed.  671,  29  Sup. 
Ct  Rep.  321. 

Under  the  safety  appliance  act,  an  abso- 
lute datj  rests  on  a  carrier,  not  only  to 
equip  its  trains  with  brakes,  but  also  to 
maintain  the  equipment  in  accordance  with 
the  standard  set  by  Congress. 

St.  Louis,  I.  M.  ft  S.  R.  Co.  r.  Taylor, 
210  U.  S.  281,  62  L.  ed.  1061,  28  Sup.  Ct 
Rep.  616,  21  Am.  Neg.  Rep.  464;  Delk  v. 
St.  Louis  ft  S.  F.  R.  Co.  220  U.  S.  680,  56 
L.  ed.  690,  31  Sup.  Ct.  Rep.  617;  Chicago^ 
B.  ft  Q.  R.  Co.  v.  United  States,  220  U.  & 
659,  66  L.  ed.  682,  31  Sup.  Ct.  Rep.  612; 

241  U.  8. 


1916. 


SPOKANE  &  I.  E.  R.  00.  ▼.  CAMPBELL. 


498,  499 


Donegan  v.  Baltimore  &  N.  T.  R.  Co.  91  C. 
0.  A.  555,  165  Fed.  869;  AtUntio  Coast 
Line  R.  Co.  ▼.  United  States,  94  C.  C.  A. 
86,  168  Fed.  176;  United  States  v.  Atchi- 
son, T.  ft  S.  F.  R.  Co.  90  C.  C.  A.  827,  163 
Fed.  617;  United  States  ▼.  Denyer  &  R.  O. 
R.  Co.  90  C.  C.  A.  329,  163  Fed.  619;  Chi- 
oago,  M.  k  St.  P.  R.  Co.  v.  United  States, 
20  L.R.A.(N.S.)  473,  91  C.  C.  A.  373,  166 
Fed.  423;  United  States  t.  Wheeling  &  L. 
£.  R.  Co.  167  Fed.  198;  Indiana  Union 
Traction  Co.  t.  Abrams,  180  Ind.  64,  101 
N.  E.  1. 

Failure  to  perform  a  statutory  duty  is 
negligence  per  »e. 

Cummings  y.  Kenny,  97  App.  Diy.  114, 
89  N.  Y.  Supp.  679;  Grand  Trunk  Western 
R.  Co.  y.  Lindsay,  120  C.  C.  A.  166,  201 
Fed.  836;  Indiana  Union  Traction  Ca  T. 
Abrams,  180  Ind.  54,  101  N.  E.  1;  Waverly 
Co.  y.  Beck,  180  Ind.  523,  103  N.  E.  332; 
Qallenkamp  y.  Garvin  Mach.  Co.  —  N.  Y. 
— ,  99  N.  E.  718;  PinneU  v.  Kelly,  64  Ind. 
App.  59,  99  N.  E.  772. 

The  duty  resting  upon  a  common  carrier 
by  railroad,  engaged  in  interstate  commerce, 
to  equip  its  trains  with  sufficient  air  brakes 
and  with  automatic  couplers,  is  an  absolute 
duty,  and  the  requirement  of  the  statute  is 
not  satisfied  by  using  reasonable  care  to  see 
that  the  equipment  furnished  is  in  perfect 
condition. 

Chicago,  B.  k  Q.  R.  Co.  v.  United  SUtes, 
220  U.  S.  659,  55  L.  ed.  582,  31  Sup.  Ct. 
Rep.  612;  Delk  y.  St.  Louis  &  S.  F.  R.  Co. 
220  U.  S.  580,  55  L.  ed.  590,  31  Sup.  Ct.  Rep. 
«17;  St.  Louis,  L  M.  &  S.  R,  Co.  y.  Taylor, 
210  U.  S.  281,  52  L.  ed.  1061,  28  Sup.  Ct 
Rep.  616,  21  Am.  Neg.  Rep.  464.  See  also 
Indiana  Union  Traction  Co.  y.  Abrams,  180 
Ind.  54,  101  N.  E.  1. 

Can  it  be  said  that  Congress,  in  passing 
these  statutes,  did  not  take  into  consider- 
ation the  fact  that  men  are  human  and  are 
liable  to  misread  and  misinterpret  orders, 
and  that  in  just  such  unforeseen  emergen- 
cies, safety  appliances  must  be  at  hand,  for 
the  protection  of  the  lives  of  these  same 
employees  and  lives  of  passengers  intrusted 
to  their  care?  If  the  employee  has  been 
n^ligent,  then  his  damages  are  to  be  de- 
creased according  to  the  degree  of  his  neg- 
ligence; but  he  is  not  entirely  deprived  of 
his  right  to  have  the  Jury  compare  his  neg- 
ligence with  the  negligence  of  the  master 
in  his  failure  to  furnish  proper  appliances. 

Grand.  Trunk  Western  R.  Co.  v.  Lindsay, 
^3  U.  S.  42,  68  L.  ed.  838,  34  Sup.  Ct. 
Rep.  681,  Ann.  Cas.  1914C,  168;  Louisville 
^  K.  R.  Co.  v.  Wene,  121  0.  C.  A.  245,  202 
Fed.  887. 
«0  li.  ed. 


Mr.  Justice  Pitney  delivered  the  opinion 
of  the  court: 

This  action  was  brought  by  Campbell  in 
the  United  States  district  court  for  the  east- 
ern district  of  Washington  to  recover  dam- 
ages for  personal  injuries,  and  was  based 
upon  the  Federal  employers'  liability  act  of 
April  22,  1908  (chap.  149,  35  SUt.  at 
L.  66,  Comp.  SUt  1913,  §  8657),  and 
the  safety  appliance  act  of  March  2, 
1898,  as  amended  March  2,  1903  (chap.  196, 
27  Stat,  at  L.  631,  Comp.  SUt  1913,  § 
8606;  ehap.  976,  32  SUt  at  L.  943,  Comp. 
SUt  1918,  i  8613).  A  judgment  in  plain- 
tilTs  favor  was  affirmed  by  the  circuit  court 
of  iqppsals  (133  C.  C.  A.  370,  217  Fed.  618), 
and  the  ease  comes  here  on  writ  of  error. 

At  the  time  of  Campbell's  injury,  July 
31, 1909,  the  company  was  operating  a  single 
track  electric  railway  between  the  city  of 
Spokane,  in  the  state  of  Washington,  and 
the  town  of  Coeur  d'Alene,  in  the  sUte  of 
Idaho.  It  was  operated  under  sUndard 
railroad  rules.  The  running  time  of  regular 
trains  was  fixed  by  a  time-Uble,  upon  which 
they  were  designated  by  numbers.  Special 
trains  were  run  by  telegraphic  orders  given 
by  a  train  despatcher,  whose  office  was  in  Spo- 
kane. Under  the  rules,  regular  trains  were 
superior  to  special  trains,  and  specials  were 
required  to  look  out  for  and  keep  out  of  the 
way  of  [499]  the  regulars.  Unless  a  special 
train  had  orders  from  the  train  despatcher, 
fixing  a  meeting  point  with  the  regular 
train,  or  in  some  other  way  giving  it  a 
right  to  disregard  the  time  when  the  latter 
was  due  according  to  the  time-Uble,  it  was 
required  to  be  clear  of  the  main  line  at  any 
point  five  minutes  before  the  regular  train 
was  due  at  that  point  according  to  the  time- 
table. Campbell  was  an  experienced  motor- 
man,  had  been  in  the  company's  employ  for 
several  years,  and  was  conversant  with  iU 
rules  and  its  methods  of  train  operation. 
On  the  day  he  was  injured  he  was  the  motor- 
man  in  charge  of  a  special  train  running 
between  Spokane  and  Coeur  d'Alene,  made 
up  of  a  combined  motor  and  passenger  car 
and  two  trailers,  and  referred  to  in  the 
train  orders  as  Motor  6,  that  being  the 
number  of  the  motor  car.  The  train  was 
equipped  with  Westinghouse  air  brakes. 
After  several  trips  between  the  termini,  it 
was  at  Coeur  d'iUene  about  4:30  o'clock  in 
the  afternoon,  ready  to  sUrt  for  Spokane 
when  ordered  to  dq  so.  Regular  train  No. 
20  was  about  due  to  arrive.  Under  orders 
presently  to  be  mentioned,  the  nature  of 
which  was  in  dispute,  Campbell  started  his 
train  west  from  Coeur  d'Alene,  and  had  pro* 
ceeded  some  distance  when  he  disoovered  a 
train  approaching  on  the  same  track  from 
the  opposite  direction.  Upon  seeing  this,| 
he  applied  th«  brakes,  without  sueoess,  and' 

llSl 


409-602 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


there  was  a  collision,  in  which  he  received 
serious  personal  injuries.  The  train  with 
which  he  collided  was  regular  No.  20. 

His  complaint  in  the  action  counted  upon 
two  grounds  of  recovery:  (a)  That  the 
company,  through  its  agents  and  employees, 
negligently  instructed  him  to  proceed  with 
his  train  from  C<eur  d'Alene  to  Spokane, 
and  to  meet  and  pass  No.  20  at  the  town 
of  Alan,  a  station  west  of  the  point  of  col- 
lision; and  (b)  that  the  collision  was  di- 
rectly due  to  the  failure  of  the  company  to 
furnish  him  with  a  motor  and  train  sup- 
plied with  proper  air  brakes  [500]  in 
working  condition.  The  action  was  tried 
before  the  district  court  and  a  jury,  when 
evidence  was  introduced  to  the  following 
effect: 

Campbell  testified  that  having  arrived  in 
Cceur  d'  Alene  with  his  train  about  4:20  p. 
ic.,  and  brought  it  into  position  to  return  to 
Spokane,  he  received  through  the  conductor, 
Whittlesey,  orders  both  written  and  oral 
for  the  running  of  the  train;  that  the  writ- 
ten order  said  that  "motor  5  would  run 
special  Cceur  d'Alene  to  Spokane  and  would 
meet  Ntunber  20  at  Alan;"  that  when  the 
written  order  was  received  Campbell  was 
in  his  cab,  ready  to  start,  and  that  the 
conductor,  on  delivering  the  order  to  him, 
said:  ''All  right,  go  ahead;  get  out  of 
town.''  Campbell  was  unable  to  produce  the 
written  order.  If  its  contents  were  as  he 
testified,  he  was  justified  in  at  once  leaving 
Cceur  d'Alene  and  running  to  Alan,  the 
order  giving  him  a  right  of  way  over  all 
trains  to  that  point.  But  defendant's  evi- 
dence was  to  the  effect  that  the  written 
order  actually  read:  "Motor  5  will  run 
spl.  C.  d'Alene  to  Spokane,  meet  spl.  4  east 
at  Alan."  Campbell  admitted  that  if  this 
was  in  fact  the  order,  it  did  not  authorize 
him  to  leave  Cceur  d'Alene  before  No.  20 
came  in,  for  it  made  no  mention  of  that 
train,  and  did  not  supersede  the  right  given 
to  it  by  rules  and  time-table.  Nor  was  it 
contended  in  his  behalf  that  the  conductor's 
verbal  order  could  in  any  way  modify  the 
written  order.  It  appeared  that  there  was 
a  land  registration  in  progress  at  Cceur 
d'Alene,  and  because  of  the  resulting  rush  of 
travel  bicoming  trains  stopped  at  the  west 
end  of  the  yard  and  went  on  a  Y  switch, 
where  the  tniin  was  turned  and  then  backed 
down  to  the  Cceur  d'Alene  station,  while 
trains  ready  to  leave  Cceur  d'Alene,  upon 
the  arrival  of  an  incoming  train,  would 
run  to  the  end  of  the  yard,  between  the  legs 
of  the  Y,  wait  there  for  the  incoming  train, 
anit  pull  out  as  soon  as  it  headed  in  on  the 
Y.  Whittlesey  testified  that  he  intended  the 
train  to  go  to  the  Y  and  [501]  wait  there 
for  No.  20.  Because,  as  Campbell  testified, 
his  orders  were  to  go  to  Alan  to  meet  No. 
11S2 


20,  he  did  not  stop  at  the  Y.  He  testified 
that  soon  after  passing  this  point,  and  while 
running  at  about  30  miles  per  hour  (there 
was  a  slight  descending  grade),  he  saw  an 
east-bound  train  (it  was  proved  to  be  No. 
20),  coming  on  the  same  track  at  a  distance 
which,  from  his  testimony  and  that  of 
others,  might  have  been  fotmd  to  be  up- 
wards of  800  feet.  He  immediately  shut 
off  the  power,  and  then  "dynamited  her," 
that  is,  threw  his  air  brake  into  emergency 
so  as  to  apply  the  air  pressure  upon  the 
train  brakes  to  the  full  capacity.  He  testi- 
fied in  effect  that  the  brakes  took  hold 
properly,  and  held  for  approximately  35  or 
40  feet,  when  the  air  released  (another  wit- 
ness said  it  "leaked  off"),  and  after  that 
there  was  nothing  he  could  do  to  stop  the 
train  except  to  reverse,  which  he  endeavored 
to  do  but  without  success.  There  was  no 
hand  brake.  He  testified  that  if  the  air 
brakes  had  worked  properly  he  could  have 
stopped  his  train  and  avoided  a  collision; 
that  when  they  took  hold  they  reduced  the 
speed  to  about  20  miles  per  hour;  that  when 
released  the  train  shot  forward  at  approxi- 
mately 18  or  20  miles  an  hour;  "then  I 
stopped  it  a  little  bit  with  my  reverse,  so 
that  at  the  moment  of  collision  I  think  we 
were  going  about  15  miles  an  hour."  No. 
20  meanwhile  had  been  brought  almost,  if 
not  quite,  to  a  stop. 

Under  instructions  from  the  U'ial  co^t 
the  jury,  besides  reuming  a  general  ver- 
dict, which  was  in  favor  of  the  plaintiff, 
with  $7,500  damages,  made  three  special 
findings  in  writing:  (1)  That  Campbell, 
before  leaving  Cceur  d'Alene,  received  a 
train  order  reading  as  follows:  "Motor  5 
will  run  Spl.  C.  d'Alene  to  Spokane,  meet 
special  4  east  at  Alan;"  (2)  that  the  air 
brakes  on  .Campbell's  train  immediately  be- 
fore the  collision  were  insufficient  to  enable 
him  to  control  the  speed  of  the  train;  (3) 
that  CTampbell's  leaving  Cceur  d'Alene  in  vio- 
lation of  [502]  his  orders  was  the  proxi- 
mate cause  of  the  accident.  There  was  a 
motion  for  judgment  in  favor  of  defendant 
on  the  special  findings  notwithstanding  the 
general  verdict,  which  was  denied,  and  it  is 
to  this  ruling  as  well  as  to  certain  instruc- 
tions given  and  refused  to  be  given  that  the 
assignments  of  error  are  addressed. 

The  general  verdict  and  the  special  find- 
ings were  taken  pursuant  to  the  state  prac* 
tice  prescribed  by  certain  sections  of  the 
Code,  permitting  the  trial  judge  to  instruct 
tl^e  jury,  if  they  render  a  general  verdict, 
to  find  upon  particular  questions  of  fact,  to 
be  stated  in  writing,  and  providing  that 
'Sehen  a  special  finding  of  facts  shall  be  in- 
consistent with  the  general  verdict,  the 
former  shall  control  the  latter,  and  the 
court  shall  give  judgment  accordingly."    1 

241  U.  8* 


1916. 


SPOKANE  ft  I.  £.  R.  CO.  y.  CAMPBELL. 


502-504 


Rem.  ft  Bal.  Anno.  Code,  §§  364,  365.  The 
rule  established  by  decisions  of  the  supreme 
court  of  the  state  is  that  where  the  general 
yerdict  and  the  special  findings  can  be  har- 
monized by  taking  into  consideration  the 
entire  record  of  the  cause,  including  the  evi- 
dence and  the  instructions  to  the  jury,  and 
construing  it  liberally  for  that  purpose,  it 
is  the  duty  of  the  court  to  harmonize  them ; 
and  that  where  a  special  finding  ia  suscep- 
tible of  two  constructions,  one  of  which  will 
support  the  general  verdict  and  the  other 
will  not,  that  construction  shall  be  adopted 
which  will  support  the  general  verdict.  Pep- 
perall  y.  City  Park  Transit  Co.  15  Wash.  176, 
180,  183,  45  Pac.  743,  46  Pac.  407;  Mercier 
▼.  Travelers'  Ins.  Co.  24  Wash.  147,  153, 
154,  64  Pac.  158;  McCorkle  v.  Mallory,  30 
Wash.  632,  637,  71  Pac.  186;  Crowley  v. 
Northern  P.  R.  Co.  46  Wash.  85,  87,  88, 
80  Pac.  471;  Sudden  ft  Christenson  v. 
Morse,  55  Wash.  372,  375,  104  Pac.  645; 
Cameron  v.  Stack-Gibbs  Lumber  Co.  68 
Wash.  539,  544,  123  Pac.  1001. 

Whether,  under  the  conformity  act  (Rev. 
Stat.  §  914,  Comp.  Stat.  1913,  §  1537),  the 
trial  court  was  required  to  adhere  to  the 
state  practice  governing  the  effect  of  the 
general  verdict  and  the  special  findings  may 
not  be  free  from  doubt.  See  Nudd  v.  Bur- 
rows, 91  [503]  U.  S.  426,  441,  23  L.  ed.  286, 
290;  Indianapolis  ft  St.  L  R.  Co.  ▼.  Horst, 
03  U.  S.  291,  300,  23  L.  ed.  898,  901,  7  Am. 
Neg.  Cas.  331;  United  States  Mut.  Acci. 
Asso.  V.  Barry,  131  U.  S.  100,  119,  120,  33 
L  ed.  60,  66,  9  Sup.  Ct.  Rep.  755;  Lincoln 
y.  Power,  151  U.  S.  436,  442,  38  L.  ed.  224, 
227,  14  Sup.  Ct.  Rep.  387;  £z  parte  Chat- 
eaugay  Ore  ft  Iron  Co.  123  U.  S.  544, 
554,  32  L.  ed.  508,  511,  9  Sup.  Ct.  Rep.  150; 
United  States  v.  United  States  Fidelity  ft  G. 
Co.  236  U.  S.  512,  529,  59  L  ed.  696,  704, 
35  Sup.  Ct.  Rep.  298;  Bond  v.  Dustin,  112 
U.  S.  604,  609,  28  L.  ed.  835,  836,  5  Sup. 
Ct.  Rep.  296;  Glenn  v.  Sumner,  132  U.  S.  152, 
156,  33  L  ed.  301,  10  Sup.  Ct.  Rep.  41; 
Central  Transp.  Co.  v.  Pullman's  Palace 
Car  Co.  139  U.  S.  24,  40,  35  L.  ed.  55,  61, 
11  Sup.  Ct.  Rep.  478;  Knight  v.  Illinois  C. 
R.  Co.  103  C.  C.  A.  514,  180  Fed.  368,  372. 

The  court  of  appeals  held  (133  C.  C.  A. 
370,  217  Fed.  523)  that  the  Federal  courts 
are  not  bound  by  local  rules  of  practice 
with  respect  to  submitting  special  findings 
along  with  a  general  verdict,  or  with  re- 
spect to  interpreting  such  verdicts;  and 
that  in  this  case  it  must  be  determined  as 
matter  of  law,  and  without  reference  to  the 
testimony,  whether  the  special  findings  en- 
titled defendant  to  judgment  notwithstand- 
ing the  general  verdict. 

We  find  it  unnecessary  to  decide  the  ques- 
tioa  of  practice,  and  laying  aside  all  tech- 
Aiealities  will  aastune,  in  favor  of  plnintiff 
••  Xi.  ed. 


in  error,  that  the  verdict  is  to  be  inter- 
preted according  to  the  local  rule, — that  is, 
by  reading  the  special  findings  in  the  light 
of  the  issues  and  the  evidence,  but  in  the 
light  also  of  the  general  verdict,  so  as  to 
arrive  at  the  true  intent  and  meaning  of 
the  jury.  So  considered,  the  findings  estab- 
lish that  there  was  no  negligence  on  the 
part  of  the  company  in  giving  Campbell  his 
rimning  orders;  that  he  received  the  order 
to  meet  Special  4  east  at  Alan,  which,  ac- 
cording to  the  admitted  effect  of  the  rules 
of  the  company,  meant  that  he  should  not 
leave  Cceur  d'Alene  until  the  arrival  of  regu- 
lar No.  20;  that  he  left  Canr  d'Alene  in 
disregard  or  violation  of  his  orders,  and 
that  this  was  "the  proximate  cause"  of  the 
accident.  At  the  same  time,  the  special  find- 
ings establish  that  the  air  brakes  on  his 
train  immediately  before  the  collision  were 
insufficient  to  enable  him  to  control  the  speed 
of  the  train.  And  the  general  verdict,  so  far 
as  [504]  it  is  supported  by  the  evidence, 
must  be  taken  as  establishing  every  other 
fact  in  issue,  not  eliminated  by  the  instruc- 
tions of  the  trial  court,  that  may  be  neces- 
sary to  sustain  the  recovery.  To  quote  from 
the  brief  of  plaintiff  in  error:  "The  special 
findings  establish  that  the  general  verdict 
was  based  solely  upon  the  theory  of  negli- 
gence in  the  air-brake  equipment  of  the 
train."  But  the  general  verdict,  interpreted 
in  the  light  of  the  instructions  given  by  the 
trial  court  to  the  jury,  means  not  merely 
that  the  braking  equipment  was  defective, 
but  that  this  was  a  proximate  cause  of  the 
collision.  The  instruction  upon  this  point 
was:  "If  .  .  .  you  find  from  a  pre- 
ponderance of  the  testimony  that  the  air 
brakes  on  the  car  and  train  operated  by  the 
plaintiff  were  defective  and  out  of  repair 
at  and  immediately  prior  to  the  time  of 
the  collision,  and  that  the  defective  condi- 
tion of  the  air  brakes  was  the  direct  and 
proximate  cause  of  the  collision,  or  contrib- 
uted directly  and  proximately  to  the  colli- 
sion, and  to  the  injury  to  the  plaintiff,  your 
verdict  will  be  for  the  plaintiff.  .  .  . 
And  before  you  can  return  a  verdict  for 
the  plaintiff  based  on  the  allegation  that 
the  brakes  were  defective  and  out  of  repair, 
you  must  be  satisfied  from  a  preponderance 
of  the  testimony  not  only  that  the  brakes 
were  in  fact  defective  or  out  of  repair,  but 
that  their  defective  condition  was  the  direct 
or  proximate  cause  of  the  collision,  as  I 
have  defined  that  term  to  you."  It  is  true 
that  other  parts  of  the  charge  indicate  that 
the  trial  court  entertained  the  view  that 
the  proximate  cause  must  be  either  Camp* 
beirs  disobedience  of  orders  or  the  defective 
air-brake  equipment,  and  that  these  two 
things  could  not  concur  as  proximate  cauiet. 
But  he  did  not  bind  the  jury  by  instmctiona 

11^^ 


604-507 


SUPBEME  COURT  OF  THE  UNITED  STATES. 


Got.  Tbmm, 


to  that  effect;  and  yiewing  the  general  ver- 
dict and  the  special  findings  together,  in 
the  light  of  the  issues,  the  eyidence,  and  the 
entire  charge,  it  is  evident,  we  repeat,  that 
the  jury  must  have  foimd  that  the  defective 
air  brakes  were  a  proximate  cause  of  [505] 
the  collision.  In  view  of  the  testimony  al- 
ready mentioned,  to  the  effect  that  Camp- 
bell, after  discovering  train  No.  20,  would 
have  had  ample  time  to  avoid  the  collision 
had  the  train-brake  equipment  been  ade- 
quate, the  conclusion  of  the  jury  waa  in 
this  respect  not  unreasonable. 

It  is  insisted  that  there  was  no  evidence 
that  the  provision  of  the  safety  appliance 
act  respecting  train  brakes  was  violated.  It 
is,  of  course,  settled,  that  if  the  equipment 
was  in  fact  defective  or  out  of  repair,  the 
question  whether  this  was  attributable  to 
the  company's  negligence  is  inmiaterial.  St. 
Louis,  I.  M.  &  S.  R.  Co.  v.  Taylor,  210  U. 
S.  281,  294,  52  L.  ed.  1061,  1067,  28  Sup. 
Ct  Rep.  616,  21  Am.  Neg.  Rep.  464;  Chi- 
cago, B.  k  Q.  R.  Co.  V.  United  States,  220 
U.  S.  659,  575,  55  L.  ed.  582,  688,  31  Sup. 
Ct.  Rep.  612;  Texas  ft  P.  R.  Co.  v.  Rigsby, 
241  U.  S.  33,  43,  ante,  874,  878,  36  Sup.  U. 
Rep.  482.  Hence  the  argument  is  that,  ac- 
cording to  all  of  the  evidence,  the  equipment 
was  not  defective  or  out  of  repair.  It  ap- 
peared without  dispute  that  it  consisted  of 
the  Westinghouse  standard  automatic  air 
brake,  such  as  is  in  general  use  throughout 
the  country  upon  passenger  trains.  A  wit- 
ness in  defendant's  employ  testified  that 
shortly  before  Campbell  took  the  train  out 
from  Cceur  d'Alene  on  the  trip  in  question 
he  inspected  the  air  brakes  and  found  them 
in  perfect  order.  But  there  was  much  evir 
dence  besides  that  of  Campbell  himself,  to 
the  effect  that  when  he  applied  the  emer- 
gency, the  brakes  took  hold  and  then  leaked 
off,  so  as  to  release  the  brakes.  The  jury 
was  warranted  in  finding  from  the  testi- 
mony as  a  whole  that  Campbell  properly 
applied  the  air  when  600  feet  or  more  from 
the  place  where  the  collision  occurred,  and 
that  the  brakes  refused  to  work.  Expert 
witnesses  called  by  defendant  testified  in 
effect  that  the  train  could  have  been  stopped 
inside  of  300  feet  if  the  brakes  had  been 
in  proper  order.  The  air-brake  equipment 
was  wrecked  in  the  collision,  so  that  there 
was  no  explanation  of  the  cause  of  its  fail- 
ure to  operate  properly;  but  it  was  a  rea- 
■onable  inference  that  there  was  some  de- 
fect or  want  of  repair  in  the  valves  or  pack- 
ing. 

[506]  Next,  it  is  insisted  that  Camp- 
bell's train  was  not  such  as  the  safety  ap- 
pliance acta  require  to  be  equipped  with  air 
brakes.  In  Spokane  ft  I.  E.  R.  Co.  ▼.  United 
States,  decided  June  5,  1916,  241  U.  S.  344, 
ante,  1087, 86  Sup.  Ct  Rep.  668,  we  held  that 
11S4 


this  same  railroad,  with  respect  to  its  inters 
urban  traffic,  is  subject  to  the  provisions  ol 
those  acts  respecting  automatic  couplers, 
and  hand  holds  or  grab  irons  at  the  ends  of 
the  cars.  In  that  case  the  particular  reli- 
ance of  the  company  was  upon  the  conclud- 
ing cause  of  the  1st  section  of  the  1903 
amendment  (32  Stat,  at  L.  943,  chap.  976, 
Comp.  SUt  1913,  §  8613),  which  ex- 
cepts trains,  cars,  etc.,  "which  are  used 
upon  street  railways.**  In  the  present 
case  a  distinction  is  sought  to  be  drawn 
between  steam  and  electric  roads,  the 
argument  being  that  the  provision  re- 
quiring power  brakes,  when  read  in  oon- 
nection  with  the  context,  indicates  that 
trains  drawn  by  steam  locomotives  and 
operated  by  a  locomotive  engineer  were 
alone  within  the  contemplation  of  Congress. 
It  is  true  that  in  the  act  of  1893  the  provi- 
sion was  closely  associated  with  the  men- 
tion of  a  locomotive  engine  as  the  motive 
power;  the  words  of  §  1  being:  "It  shall 
be  unlawful  for  any  common  carrier  engaged 
in  interstate  commerce  by  railroad  to  use 
on  its  line  any  locomotive  engine  in  moving 
interstate  traffic  not  equipped  with  a  power 
driving-wheel  brake  and  appliances  for 
operating  the  train-brake  system,  or  to  run 
any  train  in  such  traffic  [after  a  specified 
date]  that  has  not  a  sufficient  number  of 
cars  in  it  so  equipped  with  power  or  train 
brakes  that  the  engineer  on  the  locomotive 
drawing  such  train  can  control  its  speed 
without  requiring  brakemen  to  use  the  com- 
mon hand  brake  for  that  purpose."  Section 
6,  prescribing  penalties,  also  uses  the  words 
**locomotive  engine"  and  "locomotives."  But 
the  1903  amendment,  which,  as  frequently 
pointed  out,  was  enacted  for  the  purpose  of 
enlarging  the  scope  of  the  act  (Southern 
R.  Co.  v.  United  States,  222  U.  S.  20,  26, 
56  L.  ed.  72,  74,  32  Sup.  Ct  Rep.  2,  3  N.  C. 
C.  A.  822;  Southern  R.  Co.  v.  Crockett,  234 
U.  S.  725,  735,  58  L.  ed.  1564,  1568,  34  Sup. 
Ct  Rep.  897),  in  its  1st  section  declares 
[507]  that  the  provisions  relating  to  train 
brakes  (among  others)  shall  be  held  to  ap- 
ply to  "all  trains,  locomotives,  tenders,  cars, 
and  similar  vehicles  used  on  any  railroad 
engaged  in  interstate  commerce  .  •  .  and 
to  all  other  locomotives,  tenders,  cars,  amd 
similar  vehicles  used  in  connection  there- 
with," subject  to  exceptions  not  now  perti- 
nent The  2d  section  declares  that  whenever 
any  train  is  operated  with  power  or  train 
brakes,  "not  less  than  fifty  per  centum  of 
the  cars  in  such  train  shall  have  their 
brakes  used  and  operated  by  the  engineer 
of  the  locomotive  Rawing  such  train."  Of 
course,  an  important  object  of  having  a 
train  equipped  with  a  system  of  brakes  un- 
der the  single  control  of  the  engineer  Is  to 
permit  of  a  prompt  and  effective  redueticta 

141  U^S. 


1915. 


SPOKANE  &  I.  E.  R.  00.  T.  OAMPBELU 


507-4M)t 


of  speed  when  the  man  driving  the  train  is 
notified  of  danger.  The  importanioe  of  this 
is  precisely  the  same,  whatever  be  the  mo- 
tive  power;  and,  in  view  of  the  beneficial 
purpose  of  the  act  and  the  evident  intent 
of  Congress  to  enlarge  its  scope  so  far  as 
necessary  to  guard  against  the  dangers  in 
view,  the  term  "similar  vehicles''  must  be 
held  to  have  the  effect  of  bringing  electric 
motors  and  trains  drawn  by  them  within  the 
provision  respecting  power  or  train  brakes. 
The  very  exemption  of  trains,  cars,  and  lo- 
comotives "used  upon  street  railways"  in- 
dicates that  electric  cars  were  in  contempla- 
tion. And  see  Omaha  k  C.  B.  Street  R.  Co. 
V.  Interstate  Commerce  Commission,  230  U. 
8.  824,  337,  57  L.  ed.  1501,  1506,  46  L.RJI. 
(NJ3.)  385,  33  Sup.  Ct.  Rep.  890;  Kansas 
City  Western  R.  Co.  v.  McAdow,  240  U.  S. 
51,  54,  ante,  520,  522,  36  Sup.  Ct  Rep.  252. 

It  is  said  that,  conceding  the  power-brake 
provision  applies  to  electric  trains,  the  duty 
imposed  was  not  owed  to  Campbell  un- 
der the  special  circumstances  established 
by  the  jury's  findings.  The  argument  is 
that  the  purpose  of  the  brake  require- 
ments is  to  place  control  of  the  train  in 
the  hands  of  the  engineer  so  that  the 
safety  of  passengers  and  employees  may 
be  conserved,  not  that  the  engineer  should  be 
able  to  escape  injury  from  peril  to  which 
he  had  wrongfully  exposed  himself;  and 
that  Campbell  cannot  [508]  bring  him- 
self within  the  class  intended  to  be  protect- 
ed by  pointing  out  that  the  situation  created 
by  his  disobedience  of  orders  was  one  that 
Congress  contemplated  as  possible  and  the 
consequences  of  which  it  desired  to  guard 
against.  This  gives  altogether  too  narrow 
a  meaning  to  the  safety  appliance  act,  and 
is  inconsistent  with  the  provisions  of  the 
employers'  liability  act,  as  we  shall  see. 

It  is  most  earnestly  insisted  that  the  find- 
ings established  that  Campbell  was  not  in 
the  course  of  his  employment  when  he  was 
injured,  and  consequently  that  judgment 
could  not  properly  be  entered  in  his  favor 
vpcfn  the  cause  of  action  established  by  the 
general  verdict.  This  invokes  the  doctrine 
that  where  an  employee  volimtarily  and 
without  necessity  growing  out  of  his  work 
abandons  the  employment  and  steps  entire- 
ly aside  from  the  line  of  his  duty,  he  sus- 
pends the  relation  of  employer  and  employee, 
and  puts  himself  in  the  attitude  of  a  stran- 
ger or  a  licensee.  The  oases  cited  are  those 
where  an  employee  intentionally,  has  gone 
outside  of  the  scope  of  his  employment,  or 
departed  from  the  place  of  duty.  The  pres- 
ent case  is  not  of  that  character;  for  Camp- 
bell,  as  the  jury  might  and  presumably  did 
find,  had  no  thought  of  stepping  aside  from 
the  line  of  his  duty.  From  the  fact  that 
he  disregarded  and  in  effect  violated  the 
60  Ii.  ed. 


order  as  actually  communicated  to  him,  it» 
of  course,  does  not  necessarily  follow  that 
he  did  tills  wilfully.  The  jury  was  not 
bound  to  presume — it  would  hardly  be  rea- 
sonable to  presume — ^that  he  deliberately 
and  intentionally  ran  his  train  out  upon  a 
single  track  on  which  he  knew  an  incoming 
train  with  superior  rights  was  then  due. 
However  plain  his  mistake,  the  jury  reason- 
ably might  find  it  to  be  no  more  than  a  mis- 
take attributable  to  mental  aberration,  or 
inattention,  or  failure  for  some  other  rea- 
son to  apprehend  or  comprehend  the  order 
communicated  to  him.  In  its  legal  effect 
this  was  nothing  more  than  negligence  on 
his  part,  and  not  a  departure  from  the 
course  of  his  employment. 

[509]  To  hold  otherwise  would  have 
startling  consequences.  The  running  of 
trains  on  telegraphic  orders  is  an  everyday 
occurrence  on  every  railroad  in  the  country. 
Thousands  of  cases  occur  every  day  and 
every  night  where  a  failure  by  conductor  or 
engineer  to  comprehend  or  to  remember  the 
message  of  the  train  despatcher  may  endan- 
ger the  lives  of  employees  and  passengers. 
We  are  not  aware  that  in  any  case  it  has 
been  seriously  contended  that  because  an 
engineer  violated  the  orders,  he  went  out- 
side of  the  scope  of  the  employment.  If  he 
did  so,  in  the  sense  of  absolving  the  em- 
ployer from  the  duty  of  exercising  care  for 
his  safety,  it  is  not  easy  to  see  upon  what 
principle  the  employer's  liability  to  passen- 
gers or  to  fellow  employees  for  the  conse- 
quences of  his  negligence  could  be  main- 
tained. The  unsoundness  of  the  contention 
is  so  apparent  that  further  discussion  is 
unnecessary. 

Plaintiff  in  error  refers  to  the  fact  that 
the  wreck  occurred  in  Idaho,  and  cites  two 
sections  of  the  Criminal  Code  of  that  state, 
one  rendering  a  wilful  violation  or  omission 
of  duty  on  the  part  of  one  in  Campbell's 
position,  whereby  human  life  or  safety  is 
endangered,  punishable  as  a  misdemeanor; 
the  other  making  wilful  or  negligent  con- 
duct which  causes  a  collision  of  trains,  and 
the  resulting  death  of  a  human  being,  a 
criminal  offense.  2  Idaho  Rev.  Codes  §§ 
6926,  6909.  Whether  Campbell  was  or  is 
punishable  criminally  under  either  of  these 
sections  we  are  not  caUed  upon  to  say.  But 
his  right  to  recover  against  his  employer 
depends  upon  the  acts  of  Congress,  to  which 
all  state  legislation  affecting  the  subject- 
matter  must  yield.  Texas  k  P.  R.  Co.  ▼. 
Rigeby,  241  U.  S.  33,  41,  ante,  874,  878,  36 
Sup.  Ct.  Rep.  482. 

Upon  the  whole  case,  we  have  no  dif- 
ficulty in  sustaining  his  right  of  ae- 
tion  under  the  employers'  liability  act.  That 

act  (§  1,  35  Stat,  at  L.  65,  chap.  149,  C 

SUt.  1913,  S  8657)   imposes  a  liabi? 


509-511 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oor.  Tkm, 


injury  to  an  employee  "resulting  in  whole 
or  in  part  from  the  negligence  of  any  of  the 
officers^  agents,  or  employees  of  such  carrier, 
or  by  reason  of  any  defect  or  insufficiency 
due  [510]  to  its  negligence  in  its  cars,  en- 
gines, appliances,  ...  or  other  equip- 
ment." As  was  held  in  San  Antonio  k  A. 
Pass.  R.  Co.  V.  Wagner,  decided  June  5, 
1916,  241  U.  S.  476,  ante,  1110,  36  Sup.  Ct. 
Rep.  626,  a  yiolation  of  the  safety  appliance 
act  is  "negligence"  within  the  meaning  of 
the  liability  act.  And  by  the  proviso  to  g  3 
of  the  latter  act,  no  employee  injured  or 
killed  shall  be  held  to  have  been  guilty  of 
contributory  n^ligence  in  any  case  where  a 
violation  of  the  safety  appliance  act  "oon- 
tributed  to  the  injury  or  death  of  such  em- 
ployee." It  is  too  plain  for  argument  that 
under  this  legislation  the  violation  of  the 
safety  appliance  act  need  not  be  the  sole 
efficient  cause,  in  order  that  an  action  may 
lie.  The  circuit  court  of  appeals  (133  C. 
C.  A.  370,  217  Fed.  524)  held  that  the  ele- 
ment of  proximate  cause  is  eliminated  where 
concurring  acts  of  the  employer  and  em- 
ployee contribute  to  the  injury  or  death  of 
the  employee.  We  agree  with  this,  except 
that  we  find  it  unnecessary  to  say  the  effect 
of  the  statute  is  wholly  to  eliminate  the 
question  of  proximate  cause.  But  where,  as 
in  this  case,  plaintiff's  contributory  negli- 
gence and  defendant's  violation  of  a  provi- 
sion of  the  safety  appliance  act  are  concur- 
ring proximate  causes,  it  is  plain  that  the 
employers'  liability  act  requires  the  former 
to  be  disregarded. 

The  assignments  of  error  that  are  based 
upon  the  instructions  given  and  refused  to 
be  given  to  the  jury  raise  no  question  other 
than  those  which  have  been  disposed  of. 

Judgment  affirmed. 


[5111  JOHN  BINGHAM,  Appt., 

V. 

JOHN  J.  BRADLEY,  United  States  Msjshai 
for  the  Northern  District  of  Illinois. 

(See  S.  C.  Reporter's  ed.  511-518.) 

Foreign    extradiUon    —    BulBclency    of 
complaint  —  presumption. 

1.  Extradition  to  Canada  on  a  charge 
of  receiving  and  retaining  money,  knowing 
it  to  have  been  stolen,  will  not  be  denied 
because  the  Canadian  statute  treats  the  re- 
ceiving and  retaining  as  distinct  offenses, 
connecting  them  with  the  disjunctive  "or," 
where,  properly  interpreted,  the  complaints 


charge  the  commission  of  both  offensei, 
since,  if  only  one  offense,  that  of  receiving 
the  stolen  property,  is  made  extraditable  by 
the  treaties  with  Great  Britain  of  August  9, 
1842  (8  Stat,  at  L.  572),  art.  10,  and  July 
12,  1889  (26  Stat,  at  L.  1508),  art.  1,  this 
does  not  render  the  detention  of  the  accused 
under  the  extradition  warrant  unlawful,  as 
it  is  not  to  be  presumed  that  the  demand- 
ing government  will,  contrary  to  art.  3  of 
the  latter  treaty,  suffer  him  to  be  tried  or 
punished  for  any  offense  other  than  that  for 
which  he  is  surrendered. 

(For  other  cases,  see  Extradition,  lY.  a;  ▼., 
in  Digest  Sup.  Ct  1908.] 

Bztradition  —  sufficiency  of  complaint 
—place  of  crime. 

2.  The  British  Consul  General's  com- 
plaint in  proceedings  to  extradite  the  ac- 
cused to  Canada  sufficiently  charges  that 
the  crime  was  committed  in  Canada,  where 
it  avers  that  the  accused  was  a  fugitive 
from  justice  from  the  district  of  Montreal, 
in  that  Dominion,  and  that  the  offense  with 
which  he  is  charged  is  an  offense  within  the 
extradition  treaties  between  the  United 
States  and  Great  Britain,  and  states  that 
deponent's  information  is  based  upon  au- 
thenticated copies  of  a  warrant  issued  by 
the  police  magistrate  of  Montreal,  and  of 
the  complaint  upon  which  that  warrant  was 
issued,  and  upon  certain  depositions  taken 
in  Montreal,  submitted  and  to  be  filed  with 
the  complaint  in  the  extradition  proceedings. 

[For  other  cases,   see  Extradition,   lY.  a,  ia 
Digest   Sup.   Ct.   1908.] 

Habeas   corpus  —   extradition   —  evi- 
dence. 

3.  The  finding  of  the  United  SUtas 
Commissioner  in  foreign  extradition  pro- 
ceedings, that  the  evidence  sustained  tiie 
charge,  cannot  be  reversed  on  habeas  corpus 
if  he  acted  upon  competent  and  adequate  evi- 
dence, and  had  jurisdiction  of  the  subject- 
matter  and  of  the  accused,  and  the  offense  is 
made  extraditable  by  the  treaty  with  the 
demanding  government. 

[For  other  eases,  see  Habeas  Corpus,  IL  b.  In 
Digest   Sup.  Ct.  1908.] 

Foreign  extradition  —  evidence  —  ex 

parte  affldavita. 

4.  Properly  authenticated  affidavits  are 
not  rendered  inadmissible  in  proceedings  for 
t^e  extradition  to  Canada  of  a  fugitive  from 
justice,  because  such  affidavits  were  taken 
69  parte  in  the  absence  of  the  accused,  and 
without  opportimity  for  cross-examinatioa, 
since  the  whole  object  of  the  extraditi<A 
treaty  with  Great  Britain  of  August  9, 1842 
(8  Stat,  at  L.  572),  would  be  defeated  Iff 
construing  as  requiring  the  demanding  gov- 
ernment to  send  its  citizens  abroad  to  in- 
stitute the  proceedings  the  provisioB  of  art 
10  of  the  treaty,  that  extradition  ahnXl  <mly 
be  had  "upon  sudi  evidence  of  criminality  as, 
according  to  the  laws  of  the  place  where 


NoTK. — On  habeas  corpus  to  review  extra- 
dition proceedings — see  notes  to  State  v. 
Jackson,  1  L.RA.  873;  Ex  parte  Davis,  12 
LJtA.(N.S.)  226;  Com.  ex  rel.  Flower  ▼. 
Superintendent  of  County  Prison,  21  L.R.A. 
{N,8.)  939;  Wisener  ▼.  Burrell,  34  LJUL 
JIS6 


(N.S.)  755,  and  Oteiza  y  Cortes  t.  Jacobus, 
34  L.  ed.  U.  S.  464. 

On  practice  and  procedure  in  extradition 
cases — see  notes  to  Cook  ▼.  Hart,  86  L.  ed. 
U.  S.  934,  and  lasigi  T.  Van  de  Carr,  41 
L.  ed.  U.  S.  1046. 

S41  U.  B. 


1»U.  BD.'OBAU  T.  BRADLEY. 

tii«  fugitive  or  pcTMn  m  ehftrged  ah*!!  be  t.  Bil^,  116  U.  S.  SO,  80  L.  ed.  644,  S  Sup. 

fcmiid,  would  justify  bis  Appreneoaion  and  Ct.  Rep,  291;  lUinois  es  rel.  MeNiohoU  t. 

vommibiient  for  trial  if  the  crime  or  offeaee  Teme,  207  U.  S.  100,  B2  L.  ed.  121,  28  Sup. 

had  there  been  commuted,"  and  of  U.  B.  ReT.  Q^^  ^„    gg     McNamara  t.  Henkel,  228  U. 

SUt^   S   6271.  Cpmp.   8UL   1013,   |   10,11]^  g   „„,  K3,  67  L.  ed.  330.  332.  33  8«p.  CL 

making    depoutioni,     warrants,    or     other  n.      1411 

papera,  or  copies  thereof,  admiuible  In  e*i-        Si     ,     ,  ,       ,     „,,     .     ,    , ,  ,  .       , 

dence   at   the   hearing   H   properly   authen-        The  doctrine  in  niinoia  (which  must  rula 

ticated  so  ae  to  entitle  them  to  be  receiTed  here)    la  that  proof  of  poeaession  of  atolen 

for  similar  purposes  bj  the  tribunals  of  the  goods,  shortly  after  the  eominisalon  of  the 

foreign    country,    and    declaring    that    the  theft,    may   give   rise   to   the   presumption 

eertilicate    of   the   principal    diplomatic   or  that   the    party   haTiiw   the   goods   is    the 

eoneular  offlco:  of  the  United  States,  resi-  thief;  but  cannot,  by  itaeU,  gire  rise  to  the 

dent  m  the  fore^a  country,  shaU  be  proof  p,,,uB»ption    that    he    receiTsd   the  goods 

«f  such  authentication.  i._,._i__   ti„„    *„   v.   .,„.„      t,„*     j?  h.- 

[For  otber  case*  Me  Extradition,  IV.  s,  in  Dl-  knowing   them   to   be   stolen.     But,   if   the 

gnt  Sop.  Ct.  1908.]  party  denlea  the  theft,  and  falls  to  giTs 

TNo   602 1  "'^    satisfactory    explanation    of   how   the 
goods  cams  into   his  possession,   luch   po*- 

Submitted  April  4,  1616.    Decided  June  5,  tewion,  considered  in  connection  with  these 

lQig_  other  facts,  may  give  rise  to  the  presump- 
tion that  he  received  the  goods,  Imowing 

APPEAL  from  the  District  Court  of  the  **>em  to  be  stolen;   and  the  Federal  rule 

United  SUtes  for  the  Northern  Dietrict  »«"8  to  be  snbetantially  the  same, 
of  Illinois  to  inquire  into  a  detention  under        Qunther  t.  People,  130  IL.  S26,  28  N.  E. 

a  warrant  of  commibnent  Usued  in  proceed-  "01;  McNamara  v.  Heakel,  226  U.  B.  520, 

Inge  to  extradite  a  fugitiv,  from  justice  to  ^^*-J^-"  ^  «>■  ^^-  ^^^'  '^-  ^3  Sop- 

*  foreign  country.    Affirmed.  Ct.  Rep.  140. 

The  facta  are  stated  in  the  opinion.  ^^  °"**'  **  ^"  ''"  ^  "L  1'     ^T 
sumptum  the  posBeesion  must  be  shown  to 

Mr.  Wllltam  Dillon  submitted  the  cause  hare  be^  shortly  after  the  theft, 

for  appellant:  Huggias  t.  People,  136  IlL  243,  26  Am. 

In  order  to  make  out  a  case  for  inter-  St.  Rep.  367,  20  N.  E.  1002;  Ounther  t. 

national  extradition,  under  a  treaty  with  a  People,   supra;    Watta  T.  People^  204  Dl. 

foreign  state,  it  must  appear:     1.  That  the  233,  68  N.  E.  603. 

party   sought  to   be   extradited   is   charged  Where   the   charge  Is   for  receiving    (the 

with   having   committed   an   act   which   is:  only  extraditable  offense  anggested  by  this 

(a)    punishable  as  a  crime  under  the  law  charge  and  eridence),  as  diitiiigniBhed  from 

at  the   country   seeking  to  extradite;     (b)  retaining  or  aiding  in  conccftling,  the  eri- 

punishable  SB  a  crime  under  the  law  of  the  dence  must  also  tend  to  show  a  guilty  know]- 

country  from  which  extradition  is  sought;  edge  at  the  time  of  the  act  of  receiving, 

(c)    extraditable    as    a    crime    under    the  Huggins  t.  People,  supra. 

"T""  «'   •   '"•'/   '"'"^   "'•  *"°   T";        "•"'■•  B<.1"nl«  8.  Ml.or,  Alroc  W. 

toe..     2    Tl,.l      ft„„    „,d.,™,   oOBpetrat  B.lkl.,,  CUlr  K.  More,  H^h  B.  How- 

under  the  treaty  and  the  provisions  01  the  .   _.         ,   _  ,.       ,_    _  ,,   _.     ...    .   .. 

„  ,       ,     .   .  .     ,.  ._     1.  LI  1  land,   and  CoUot  W.  Bell  submitted  the 

Federn    statute,  there  is  probable  cause  for  '  ,  ,,   ' 

«...     -      .1.  .  .1.         .      i.        J  i.      ■    *  J.  cause  for  appellee: 

«r,m,tled  tks  or.».  h,  ,.  „  th.,^  with,    j,^,._  ^,  ^^  ,ubj«t««tn  ..d  ol  th.  «. 

which    it    IB   Bouirht    to    extradite    him.     3  ,,      ,      .  ...  .  ,     ,     >       t  . 

™.  .    ..  .      L        J      .,v  ^k  _i  tlie  treaty,  and  the  magistrate  has  before 

That  the   party   charged  with  the  commls-  .  .      ,       ,'     .,  T.  u  j.  -      i.- 

,         ,        ■        ■         .     ■.-       t  41.  bim  Iwal  evidence  on  which  to  exercise  his 

Sion  of  audi  crime  is  a  lueitive  from  the  ...         .,<_         >,.  i.^.^ 

...        ...       ,  ,         ,  ,     "  _i_j...  iudgioent  as  to  the  sumciency  ot  the  facta 

jnstice  01  the  state  seekinir  extradition,  in  ;        ,  ...  ...  ...       .  .,  . 

i.  .  ,      .       ,    1  lu  .  1.  I     .1.  to  establish  the  criminality  of  the  accused 

the  sense,  at  least:       a)  that  he  was  in  the  ...  _    .      .     j-ii       1.1    j    .  ■ 

,  .  .     ,.' .  ^   ^.      ^.  .  for  the  purpoeea  of  extradition,  his  decision 

state  seeking  extradition  at  the  time  the  .  w         ■  _  j        ■.  u 

.  L         J  -.1  J    ..L  iLi  cannot  be  reviewed  on  habeas  corpus, 

orime   charged   was   committed   there;     (b)  .  ^^j.^^^^  ^    ^enkel,  226  U.  S.  520,  57 
Uat  he  was  in  the  state  from^hich  extra-  • 

dition  IS  sought  at  the  time  of  the  applica-  "■  ™-  "■'"'  "■!  °";'  "■"•■  "P;  ""■ 
tion  for  such  extradition.  ^^  o»>J«»"»'  *«  the  introduction  of  ths 

Wright  V.  Henkel.  190  U.  S.  40,  61,  47  L.  "*  J™'**'  affidavits  appearing  in  the  record 

•d.  04B,  955,  23  Sup.  Ct.  Rep.  781,  12  Am.  *  "o*  "«"  ^alti^.     This  method  of  proving 

Crim.  Rep.  388;  Terlinden  v.  Ames,  184  U.  *•  probable  guilt  of  the  accused  is  well 

S.  870,  46  L.  ed.  634,  22  Sup.  Ct.  Rep.  484,  srtnblished,  and  in  many  cases  is  the  only 

18  Am.  Crim.  Rep.  424;  Ex  parte  B^gel,  practicable  method. 

114  U.  S.  642,  29  L.  ed.  260,  6  Sup.  Ct.       Rice  v.  Ames,  180  U.  S.  371,  376,  46  L. 

JUp.  1148,  6  Am.  Grim.  Rep.  21B;  Roberta  ed.  677,  681,  21  Sop.  Ct  Rep.  406,  12  Am. 
••  L.  ed.                                                       72  WW 


512,  613 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tibm, 


Grim.  Rep.  356;  Yordi  ▼.  Nolte,  216  U.  8. 
227,  231,  54  L.  ed.  170,  172,  30  Sup.  Ct. 
Rep.  90;  Ex  parte  Schorer,  197  Fed.  67; 
Powell  ▼.  United  States,  124  C.  C.  A.  282, 
206  Fed.  400. 

Possession  and  disposition  in  Canada 
being  otherwise  shown,  possession  and  dis- 
position in  CSiicago  is  evidence  of  knowledge 
that  the  money  disposed  of  in  Montreal 
was  stolen. 

Com.  V.  Phelps,  192  Mass.  691,  78  N.  £. 
741. 

In  all  prosecutions  for  receiving  stolen 
goods,  the  proof  of  guilty  knowledge  must, 
in  the  very  nature  of  things,  be  in  the  form 
of  presumptions  drawn  from  all  the  attend- 
ant circumstances. 

Huggins  y.  People,  135  111.  243,  25  Am. 
St.  Rep.  357,  25  N.  £.  1002;  McNamara  v. 
Henkel,  226  U.  S.  520,  524,  57  L.  ed.  330, 
332,  33  Sup.  Ct.  Rep.  146;  Ex  parte 
Glucksman,  189  Fed.  1010;  Fulton  v.  State, 
8  Ala.  App.  257,  62  So.  059;  James  v.  State, 
8  Ala.  App.  255,  62  So.  897. 

An  extradition  proceeding  is  not  a  trial, 
and  all  that  is  necessary  to  show  to  war- 
rant extradition  is  probable  cause  that  the 
person  accused  committed  tlie  offense. 

Glucksman  v.  Henkel,  221  U.  S.  508,  512, 
56  L.  ed.  830,  833,  31  Sup.  Ct.  Rep.  704. 

Like  guilty  knowledge,  the  courts  hold 
that  a  jury  may  find  the  venue  from  the 
presumptions  to  be  drawn  from  all  the  evi- 
dence. 

Heard  v.  SUte,  121  6a.  138,  48  S.  E.  905 ; 
Com.  V.  Phelps,  192  Mass.  591,  78  N.  E. 
741;  Wills  V.  People,  3  Park.  Crim.  Rep. 
496 ;  Brown  v.  State,  —  Tex.  Crim.  Rep.  — , 
59  S.  W.  1118;  Baker  y.  SUte,  58  Ark. 
513,  25  S.  W.  603,  9  Am.  Crim.  Rep.  455; 
People  v.  Cooper,  58  App.  Div.  532,  69  N. 
Y.  Supp.  257;  United  States  v.  Britton,  2 
Mason,  464,  Fed.  Cas.  No.  14,650. 

Mr.  Justice  Pitney  delivered  the  opin- 
ion of  the  court: 

This  is  an  appeal  from  a  final  order  of 
the  district  court,  denying  an  application 
for  a  writ  of  habeas  corpus  in  an  extradi- 
tion case.  The  facts  are  to  be  gathered 
from  the  petition  for  the  writ  and  the  ex- 
hibits therein  referred  to  and  made  a  part 
of  it,  which  include  a  sworn  complaint  by 
the  British  Consul  General  at  Chicago,  ap- 
plying on  behalf  of  the  government  of  the 
Dominion  of  Canada  for  the  extradition  of 
appellant  to  Montreal,  certain  ew  parte  affi- 
davits taken  in  Montreal,  and  a  complaint 
made  and  warrant  issued  against  appellant 
in  that  city,  and  abstract  of  the  oral  testi- 
mony taken  before  the  United  States  Com- 
missioner at  Chicago,  and  the  warrant  of 
commitment  issued  by  the  Commissioner, 
under  which  appellant  is  held  in  custody. 

list 


The  complaint  of  the  Consul  General 
forth  on  information  and  belief  that  i^ 
pellant,  in  the  month  of  February,  1915, 
was  guilty  of  the  crime  of  receiving  and  re- 
taining   in    his    possession    money    to    tiM 
amount  of  $1,500  in  bills  of  the  Bank  of 
Montreal,  the  property  of  that  bank,  know- 
ing the  same  to  have  been  stolen;  that  a 
warrant  has  been  issued  by  the  police  magis- 
trate   of    the    city    of    Montreal    for    the 
apprehension  of  appellant  for  the  crime  mem- 
tioned;  that  appellant  is  guilty  of  the  in- 
dictable offense  of  receiving  money  knowing 
it  to  have  been  stolen,  and  is  a  fugitive 
from  justice  from  the  district  of  Montreal, 
province  of  Quebec,  and  Dominion  of  Can- 
ada, and  is  now  within  the  territory  of  the 
United  States;   that  the  offense  of  which 
he  is  charged  is  an  offense  within  the  treaties 
between    the     United     States    and    Great 
Britain;  and  that  deponent's  information  is 
based  upon  duly  authenticated  [513]  copies 
of  a  warrant  issued  by  the  police  magistrate 
of  Montreal  and.  of  the  complaint  or  in- 
formation  upon   which   that  warrant   was 
issued,  and  upon  certain  depositions  of  wit- 
nesses submitted  to  be  filed  with  the  pres- 
ent   complaint.      The   reference   is    to    the 
Montreal  affidavits,  which  set  forth  in  sub- 
stance that  in  the  month  of  September,  1911, 
a  branch  of  the  Bank  of  Montreal  at  New 
Westminister,  British  Columbia,  was  broken 
into  and  a  large  sum  of  money  ($271,721) 
stolen  from  the  bank,  including  a  consider- 
able number  of  $5   bills  of   the   Bank   of 
Montreal,  seventy-eight  of  these  being  iden- 
tified by  their  numbers;  that  on  February 
10,  1915,  in  the  city  of  Montreal,  appellant 
purchased  a  diamond  ring  from  one  Eaves, 
a  jeweler,  and  paid  for  it  $250,  of  which 
$245  was  composed  of  new  Bank  of  Mon- 
treal $5   bills,  more  than  thirty  of  these 
being  identified  by  the  numbers  as  among 
those  stolen ;  that  on  February  9,  1916,  one 
Wakefield    purchased    in    Montreal     some 
travelers'  checks,  paying  for  them  In  part 
with   fifty  new   $5   bills   of   the   Bank   of 
Montreal,  of  which  twenty  or  more  were 
identified   as   being   a   part   of   the   stolen 
money;    and   that   on    February    10,    1915, 
Wakefield  procured  from  a  firm  of  bankers 
in  Montreal  an  exchange  of  Canadian  bills 
for   American    currency,   the   exchange   in- 
cluding fifty  new  $5  bills  of  the  Bank  of 
Montreal,   of   which   fifteen  or   more   wert 
identified  as  being  a  part  of  those  stolen. 

Appellant  having  been  apprehended,  a 
hearing  was  had  before  the  United  States 
Commissioner,  at  which  the  above-mentioned 
documents  were  introAiced  and  testimony 
was  given  tending  to  show  that  appellant 
and  Wakefield  were  together  in  Montreal  on 
the  9th  and  10th  of  February,  1916,  co- 
operating in  the  exchange  of  the  stolen  bills 

941  U.  8. 


1915. 


BIKGHAM  V.  BRADLEY. 


S18-616 


for  travelerB*  checks  and  United  States 
enrrency;  and  that  on  the  evening  of  Feb- 
ruary 10th  they  left  Montreal  together  in  a 
manner  indicating  an  intent  to  evade  detec- 
tion, and  went  to  Chicago,  where  almost 
[614]  immediately  they  began  systematic 
efforts  to  procure  the  exchange  of  Bank  of 
Montreal  bills  for  United  States  currency. 

The  Commissioner  deeming  the  evidence 
sufficient  to  sustain  the  charge,  the  warrant 
of  commitment  was  issued,  the  proceedings 
and  evidence  being  certified  in  due  course  to 
the  Secretary  of  State,  pursuant  to  §  6270, 
Rev.  SUt.    (Comp.  Stat.  1013,  §  10,110). 

Under  the  applicable  provisions  of  our 
treaties  with  Great  Britain  (treaty  of 
1842,  art.  3  0,  8  Stat,  at  L.  672,  676 ;  treaty 
of  1880,  art  1,  26  Stat,  at  L.  1608,  1609), 
there  is  included  among  the  extraditable 
offenses  that  of  "receiving  any  money,  valu- 
able security,  or  other  property,  knowing  the 
same  to  have  been  embezzled,  stolen,  or 
fraudulently  obtained." 

In  behalf  of  appellant  it  is  objected  that 
while  the  Criminal  Code  of  Canada  defines 
as  indictable  offenses  (a)  the  receiving  or 
retaining  in  possession  anything  obtained 
by  any  offense  punishable  on  indictment, 
knowing  it  to  have  been  so  obtained,  and 
(b)  the  receiving  or  retaining  in  possession 
any  money  or  valuable  security  or  other 
thing,  the  stealing  whereof  is  declared  to  be 
an  indictable  offense,  knowing  the  same  to 
have  been  stolen,  the  offense  charged  in  the 
complaint  filed  and  in  the  warrant  issued 
in  Montreal  and  in  the  Consul  General's 
complaint  is  that  of  receiving  and  retain- 
ing in  his  possession  money,  etc.,  knowing 
it  had  been  stolen.  The  argument  is  that 
the  Canadian  statute  treats  receiving  and 
retaining  as  distinct  offenses,  connecting 
them  with  the  disjunctive  "or,"  while  the 
complaints  treat  the  two  acts  as  together 
constituting  one  offense.  Properly  inter- 
preted, however,  they  charge  the  commission 
of  both  offenses;  and  if  only  one,  that  of 
receiving,  etc.,  is  extraditable  by  the  treaty, 
this  does  not  render  appellant's  detention 
unlawful,  since  it  is  not  to  be  presumed 
that  the  demanding  government  will  suffer 
him  to  be  tried  or  punished  for  any  offense 
other  than  that  for  which  he  is  surrendered, 
in  violation  [515]  of  article  3  of  the  treaty 
of  1889.  Kelly  v.  Griffin,  241  U.  S.  6,  16, 
ante,  861,  864,  36  Sup.  Ct.  Rep.  487. 

It  is  insisted  that  the  Consul  General's 
complaint  does  not  allege  that  the  offense 
was  committed  in  Canada,  that  the  evidence 
relied  upon  raises  no  presumption  that  ap- 
pellant committed  anywhere  the  offense  of 
receiving  stolen  property  knowing  it  to  be 
stolen  (the  offense  specified  in  the  treaty), 
and  that  it  raises  no  presumption  that  ap- 
60  li.  ed. 


pellant  committed  the  offense  in  Montreal 
or  anywhere  in  the  Dominion  of  Canada. 

The  criticism  upon  the  complaint  is  un- 
substantial. It  is  fairly  to  be  inferred  from 
what  is  stated  that  the  crime  was  committed 
in  Canada,  and  it  is  distinctly  averred  that 
appellant  is  a  fugitive  from  justice  from 
the  district  of  Montreal,  in  that  Dominion, 
and  that  the  offense  with  which  he  is 
charged  is  an  offense  within  the  treaties 
between  the  United  States  and  Great  Brit- 
ain. Besides  this,  it  is  stated  that  depo- 
nent's information  is  based  upon  authenti- 
cated copies  of  a  warrant  issued  by  the 
police  magistrate  of  Montreal,  and  of  the 
complaint  upon  which  that  warrant  was  is- 
sued, and  upon  certain  depositions  submitted 
and  to  be  filed  with  the  present  complaint; 
the  depositions  being  those  taken  in  Mon- 
treal. It  is  clear  that  the  intent  was  to 
charge  that  the  offense  was  committed  in 
Canada. 

As  to  the  effect  of  the  evidence:  Tlie 
Commissioner  doubtless  held  that  the  fact 
of  possession,  taken  in  connection  with  the 
other  facts  of  the  case,  raised  a  presumption 
either  that  appellant  was  a  party  to  the 
burglary  or  that  he  afterwards  obtained 
possession  of  the  bills  with  guilty  knowl- 
edge. Appellant  disputes  the  inference, 
and,  assuming  it  to  be  well  founded,  insists 
that  there  is  nothing  in  the  law  of  proba- 
bilities to  sustain  an  inference  that  "pos- 
session by  a  man  during  a  visit  of  a  few 
days  to  Montreal  of  goods  that  were  stolen 
.more  than  three  years  previously  in  British 
Columbia  makes  it  more  probable  [516] 
that  he  received  the  goods  in  Canada  than 
that  he  received  them  in  the  United  States." 
There  is  nothing  in  the  evidence  to  require 
the  inference  that  appellant  was  paying  a 
brief  visit  to  Montreal.  It  appears  that  he 
has  a  brother  who  is  in  business  in  Chicago, 
and  that  he  himself  was  in  that  city  in  the 
summer  of  1914,  and,  on  three  occasions, 
with  intervals  of  several  weeks,  exchanged 
Canadian  money  there  for  United  States 
currency.  This  is  consistent  with  the  in- 
ference that  he  was  then  exchanging  part 
of  the  stolen  money,  but  does  not  require  the 
inference  that  he  had  a  fixed  place  of  abode 
in  Chicago.  The  stolen  bills  that  were  in 
appellant's  possession  in  Montreal  in  Feb- 
ruary, 1916,  are  not  shown  to  have  been  re- 
moved from  the  Dominion  after  the  time 
they  were  stolen  from  the  bank  in  Septem- 
ber, 1911.  As  it  was  a  reasonable  inference 
— they  being  "new  bills" — ^that  they  had 
never  before  been  used  in  exchange,  and  be- 
cause so  many  of  them  were  found  together 
in  the  hands  of  appellant  and  his  confeder- 
ate three  and  a  half  years  after  the  burg- 
lary, it  was  further  inferable  that  they 
had  been  retained  during  the  intervening 


61&-618 


8UPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TkBM, 


period  with  the  purpose  of  awaiting  Buoh 
opportunity  for  passing  them  as  might  come 
from  relaxed  vigilance  on  the  part  of  the 
authorities;  and  since  the  Dominion  of 
Canada  is  the  natural  and  convenient  mar- 
ket for  bills  of  the  Bank  of  Montreal,  it 
was  inferable  that  the  bills  had  not  been 
taken  out  of  the  Dominion  since  the  time 
they  were  stolen;  and,  if  not,  it  followed 
that  appellant  must  have  been  within  the 
Dominion  when  he  received  them.  That 
they  were  received  with  knowledge  that 
they  had  been  stolen,  might  be  inferred  from 
the  fact  of  the  burglary,  coupled  with  the 
suspicious  circumstances  (only  a  part  of 
which  we  have  referred  to)  attending  the 
efforts  to  exchange  them  for  other  forms  of 
property. 

The  Commissioner  deemed  the  evidence 
sufScient  to  sustain  the  charge  (Rev.  Stat. 
§  5270,  Comp.  Stat.  1013,  §  10,110),  and 
since  he  had  jurisdiction  of  the  subject-mat- 
ter and  of  the  accused,  and  [517]  the  of- 
fense is  within  the  treaty,  his  finding  can- 
not be  reversed  on  habeas  corpus  if  he  acted 
upon  competent  and  adequate  evidence.  Mc- 
Namara  v.  Henkel,  226  U.  S.  520,  523,  57 
L.  ed.  330,  332,  33  Sup.  Ct.  Rep.  146. 

It  is  insisted  that  the  Montreal  affidavits, 
essential  to  show  that  the  alleged  offense 
was  committed  within  the  Dominion,  were 
incompetent  because  taken  ew  parte,  in  the 
absence  of  appellant,  and  without  opportun- 
ity for  cross-examination.  The  treaty  of 
1842  provides  in  article  10  that  extradition 
shall  only  be  had  "upon  such  evidence  of 
criminality  as,  according  to  the  laws  of  the 
place  where  the  fugitive  or  person  so 
charged  shall  be  found,  would  justify  his 
apprehension  and  commitment  for  trial,  if 
the  crime  or  offense  bad  there  been  com- 
mitted." Sec.  6271.  Rev.  Stat.  (Comp.  SUt. 
1913,  §  10,111),  as  amended  by  act  of  Au- 
gust 3,  1882,  §§  5  and  6  (chap.  378,  22  SUt. 
at  L.  216,  Comp.  Stat.  1913,  |  10,116), 
provides  that  any  depositions,  warrants,  or 
other  papers  or  copies  thereof  shall  be  ad- 
missible in  evidence  at  the  hearing  if  prop- 
erlv  autlicnticated  so  as  to  entitle  them  to 
be  received  for  similar  purposes  by  the  tri- 
bunals of  the  foreign  country,  and  that  the 
certificate  of  the  principal  diplomatic  or 
consular  officer  of  the  United  States  resi- 
dent in  the  foreign  country  shall  be  proof 
of  such  authentication.  The  Montreal  affi- 
davits, complaints,  warrant,  etc.,  are  prop- 
erly authenticated  in  accordance  with  this 
provision.  It  is  one  of  the  objects  of  § 
5271  to  obviate  the  necessity  of  confronting 
the  accused  with  the  witnesses  against  him; 
and  a  construction  of  this  section,  or  of 
the  treaty,  that  would  require  the  demand- 
ing government  to  send  its  citizens  to  an- 
other country  to  institute  legal  proceedings, 
il40 


would  defeat  the  whole  object  of  the  treaty. 
Rice  V.  Ames,  180  U.  S.  971,  375,  45  L.  ed. 
577,  581,  21  Sup.  Ct.  Rep.  406,  12  Am.  Crim. 
Rep.  356;  Yordi  v.  Nolte,  215  U.  S.  227, 
231,  54  L.  ed.  170,  172,  30  Sup.  Ct  Rep.  90. 

All  of  the  objections  savor  of  technicality. 
And  since  the  jurisdiction  of  the  Commis- 
sioner is  clear,  and  the  evidence  abundantly 
sufficient  to  furnish  reasonable  ground  for 
the  belief  that  appellant  has  committed  with- 
in [518]  the  Dominion  of  Canada  a  crime 
that  is  nn  offense  under  the  laws  of  the 
Dominion,  as  well  as  under  those  of  Illi- 
nois (Jones  k  A.  Anno.  Stat.  [111.]  |  3892), 
and  is  covered  by  the  terms  of  the  treaty, 
and  that  he  is  a  fugitive  from  justice,  a 
fair  observance  of  the  obligations  of  the 
treaty  requires  that  he  be  surrendered. 
Glucksman  v.  Henkel,  221  U.  S.  508,  512, 
55  L.  ed.  830,  833,  31  Sup.  Ct.  Rep.  704. 

Final  arder  affirmed. 


NEW    YORK    LIFE    INSURANCE    COM- 
PANY, Petitioner, 

V. 

EFFIE  J.  GOULD  DUNLEVY. 

(See  S.  C.  Reporter's  ed.  518-523.) 

Judgment  —  jurisdiction  —  personal 
judgment  against  nonresident  —  ne* 
cessity  of  service. 

A  court  in  which  a  valid  personal 
judgment  has  been  obtained  on  domiciliary 
service,  though  empowered  through  garnisli- 
ment  proceedings  instituted  after  the  judg- 
ment debtor  had  become  a  nonresident  to 
inquire  whether  she  held  a  valid  claim 
against  a  life  insurance  company,  sum- 
moned as  garnishee,  for  the  surrender  value 
of  a  policy  which  she  claimed  had  been  as- 
signed to*  her,  and,  if  found  to  exist,  to 
condemn  and  appropriate  it  so  far  as  neces- 
sary to  discharge  the  original  judgment, 
could  not,  without  further  personal  service, 
bind  her  by  the  rendition,  under  an  inter- 
pleader initiated  by  the  insurance  company, 
which  paid  into  court  the  sum  due  on  the 
policy,  of  a  judgment  that  there  was  no 
valid  assignment,  followed  by  an  order  for 

Note. — On  the  protection  of  a  nonresi- 
dent creditor  a^inst  garnishment — see 
notes  to  Illinois  C.  R.  (%.  v.  Smith,  19 
L.R.A.  677;  Goodwin  v.  Claytor,  67  L.RJL 
209;  Starkey  v.  Cleveland,  C.  C.  &  St  L. 
R.  Co.  L.R.A.1915F,  880,  and  King  v.  Cross, 
44  L.  ed.  U.  S.  211. 

On  validity  of  personal  judgments  ren- 
dered upon  constructive  service  of  process-^ 
see  note  to  Moyer  v.  Bucks,  16  L.R.A.  231. 

As  to  what  service  of  process  is  sufficient 
to  constitute  due  process  of  law — see  note 
to  Pinney  v.  Providence  Loan  &  Invest.  Co. 
50  L.R.A.  577. 

241  U.  S. 


1915. 


NEW  YORK  L.  INS.  CO.  ▼.  DUNLEVY. 


the  payment  of  the  fund  in  court  over  to 

the  insured. 

[For    other    casei.    tee    Judgment,    III.   c.    1 ; 

Conititotional  Law,  IV.  b,  8,  in  Digest  Sop. 

Ct.  1908.] 

[No.  290.] 

Argued  March  14  and  15,  1916.     Decided 

June  5,  1916. 

ON  WRIT  of  Certiorari  to  the  United 
States  Circuit  Court  of  Appeals  for  the 
Ninth  Circuit  to  review  a  judgment  which 
affirmed  a  judgment  of  the  District  Court 
for  the  Northern  District  of  California  in 
favor  of  plaintiff  in  an  action  to  recover  the 
surrender  value  of  a  life  insurance  policy. 
Affirmed. 

See  same  case  below,  130  C.  C.  A.  473, 
214  Fed.  1. 

The  facts  are  stated  in  the  opinion. 

Mr.  James  H.  Mcintosh  argued  the 
cause,  and,  with  Messrs.  Edward  J.  Mc- 
Cutchen,  Warren  Olney,  Jr.,  Charles  W. 
Willard,  and  J.  M.  Mannon,  Jr.,  filed  a 
brief  for  petitioner: 

The  trial  court  should  J^aye  given  the 
proceedings  in  the  Pennsylvania  court  the 
same  faith  and  credit  accorded  them  by  law 
or  usage  in  the  courts  of  Pennsylvania. 

Crapo  V.  Kelly,  16  Wall.  610,  21  L.  ed. 
430;  Hancock  Nat.  Bank  v.  Famum,  176  U. 
S.  G40,  44  L.  ed.  619,  20  Sup.  Ct.  Rep.  606 ; 
Harris  v.  Balk,  198  U.  S.  215,  49  L.  ed. 
1023,  25  Sup.  Ct.  Rep.  625,  3  Ann.  Caa. 
1084;  Converse  v.  Hamilton,  224  U.  S.  243, 
56  L.  ed.  749,  32  Sup.  Ct.  Rep.  415,  Ann. 
Cas.  1913D,  1292;  Michigan  Trust  Co.  v. 
Ferry,  228  U.  S.  346,  57  L.  ed.  867,  33  Sup. 
Ct.  Rep.  550. 

The  proceedings  in  the  Pennsylvania 
court  were  regular  in  every  way,  and  con- 
formed to  the  law  and  usage  of  the  courts 
of  Pennsylvania. 

Wright  V.  Southern  R.  Co.  141  N.  C.  164, 
53  S.  E.  831 ;  Michigan  Trust  Co.  v.  Ferry, 
228  U.  S.  346,  57  L.  ed.  867,  33  Sup.  Ct.  Rep. 
650;  Brownfield  v.  Canon,  25  Pa.  299;  Fish 
V.  Keeney,  91  Pa.  138;  McMunn  v. 
Carothers,  4  Clark  (Pa.)  354;  Wasserman 
T.  Bank,  3  W.  N.  C.  475;  Wilbraham  v. 
Horrocks,  14  Phila.  191;  1  Troubat  &  H. 
Practice,  p.  270;  Good  v.  Grant,  76  Pa.  52; 
Wilson  V.  Mayhew,  6  Phila.  273;  Hiller  v. 
Good,  9  Lane.  Bar.  129;  Wright  v.  Mc- 
Garry,  2  Chester  Co.  Rep.  467;  Dever  v. 
Rice,  19  W.  N.  C.  156;  Rothchild  v.  Morri- 
■on,  9  Lane.  L.  Rev.  74;  Rodgers  v.  Santa 
CUus  Co.  27  W.  N.  C.  574;  Stockham  v. 
Pancoast,  1  Pa.  Dist.  R.  135;  Stem  v. 
Jones,  7  Kulp,  19;  Kistler  v.  Thompson,  3 
Lack.  Jur.  341;  Re .  Gwinner,  ^3  Pittsb.  L. 
J.  N.  S.  421;  Conshohocken  Tube  Co.  r. 
•0  li.  ed. 


Iron  Car  Equipment  Co.  167  Pa.  589,  31 
Atl.  934. 

By  the  law  and  usage  of  the  Pennsyl- 
vania courts  und  every  other  court,  the  com- 
pany discharged  its  obligation  to  Mrs.  Dun- 
levy  when,  pursuant  to  the  writ  served  upon 
it  and  the  order  of  the  court,  it  paid  what 
it  owed  her  into  court,  to  the  credit  of  the 
cause  to  which  she  was  a  party  and  in 
court. 

Michigan  Trust  Co.  v.  Ferry,  228  U.  S. 
346,  57  L.  ed.  867,  33  Sup.  Ct.  Rep.  550; 
Roig  V.  Tim,  103  Pa.  115;  Reed  v.  Pen- 
rose, 2  Grant,  Cas.  472;  Malvin  v.  Sweit- 
aer,  1  Kulp,  5;  Stover  v.  Stover,  3  Del.  Co. 
Rep.  290;  Wells  v.  Tuck,  1  Kulp,  154; 
Ficken's  EsUte,  16  PhiU.  269. 

Mr.  Nat  Sclimnlowltz  argued  the  cause, 
and,  with  Messrs.  Frank  W.  Taft  and 
Clarence  Coonan,  filed  a  brief  for  respond- 
ent: 

The  exemplified  record  of  the  Pennsyl- 
vania proceedings  is  not  res  judicata  of  any 
fact,  as  no  judgment  has  been  rendered  or 
entered  therein. 

Dougherty  v.  Lehigh  Qoal  &  Nav.  Co.  202 
Pa.  635,  90  Am.  St.  Rep.  660,  52  Atl.  18; 
Bennett  Water  Co.  v.  Millvale,  200  Pa.  613, 
50  Atl.  155;  Middleton  Mfg.  Co.  v.  Phila- 
delphia &  R.  R.  Co.  145  Pa.  187,  22  Atl. 
747,  748. 

If  judgment  had  been  rendered  in  the 
Pennsylvania  proceedings,  the  proceedings 
would  not  have  been  res  judicata  of  any 
fact  as  regards  the  respondent. 

20  Cyc.  1149;  Finch  v.  Alexander  County 
Nat.  Bank,  65  111.  App.  337;  Hukill  v. 
Yoder,  29  Pittsb.  L.  J.  N.  S.  94;  Hilliard 
V.  Burlington  Shoe  Co.  76  Vt.  57,  56  Atl. 
283;  Laport  v.  Bacon,  48  Vt.  176;  Hamil- 
ton Nat.  Bank  v.  Horton,  68  N.  H.  234,  44 
Atl.  296;  Lewis  v.  Tams,  4  Phila.  276; 
Cummings  v.  Ed  wards- Wood  &  Co.  95  Minn. 
118,  103  N.  W.  709,  106  N.  W.  304;  Shinn, 
Attachment  &  Garnishment,  §  725;  Web- 
ster V.  Adams,  58  Me.  317;  Puffer  v.  Graves, 
26  N.  H.  256;  Ruff  v.  Ruff,  85  Pa.  333. 

A  determination  of  personal  rights  with- 
out jurisdiction  in  personam  is  ineffectual. 

Pennoyer  v.  Neff,  95  U.  8.  714,  24  L.  ed. 
565;  Dull  v.  Blackman,  169  U.  S.  243,  42 
L.  ed.  733,  18  Sup.  Ct.  Rep.  333. 

Only  two  matters  could  possibly  have 
been  adjudicated  by  the  Pennsylvania  pro- 
ceedings, and  neither  of  these  matters  con- 
stitute res  judicata  to  the  claim  of  respond- 
ent. Any  other  matters  not  necessary  to 
the  judgment — matters  without  which  the 
judgment  could  have  been  pronounced — 
are  not  res  judicata  for  any  purpose. 

Thormann  v.  Frame,  176  U.  8.  350,  44  L^ 
ed.  500,  20  Sup.  Ct.  Rep.  446. 

The  full  faith  and  credit  clause  of  the 


619-621 


SUPREME  COITRT  OF  THE  UNITED  STATES. 


Oct.  Tbuc, 


Constitution  does  not  preclude  Inquiry  into 
the  jurisdiction  of  the  court  in  which  the 
judgment  is  rendered,  over  the  subject- 
matter,  the  parties  affected  by  it,  nor  the 
facts  necessary  to  give  jurisdiction. 

Ibid. 

The  garnishment  issue  as  to  the  owner- 
ship of  the  debt  owed  by  the  insurance  com- 
pany was  not  a  part  of  the  original  action 
of  Boggs  &.  Buhl  v.  Dunlevy  to  the  extent 
that  the  jurisdiction  acquired  in  that  cause 
extended  to  the  garnishment  issue. 

Ruff  V.  Ruff,  85  Pa.  333. 

Jurisdiction  in  a  garnishment  matter  de- 
pended upon  an  effective  process  served 
upon  the  garnishee,  wherever  found;  not 
upon  a  continued  jurisdiction  over  the  prin- 
cipal defendant. 

Harris  v.  Balk,  198  U.  S.  215,  49  L.  ed. 
1023,  25   Sup.  Ct.   Rep.  625,  3   Ann.   Cas. 
1084;   I^uisvillc  &  N.  R.  Co.  v.  Deer,  200 
U.  S.  176,  50  L.  ed.  426,  26  Sup.  Ct.  Rep.' 
207. 

The  payment  into  court  was  an  ew  parte 
proceeding.  No  service  of  the  petition  to 
that  end  upon,  nor  any  consent  thereto  by, 
respondent,  is  claimed  or  set  forth.  The 
matter,  therefore,  under  no  condition,  could 
be  a  matter  demanding  credit  in  a  sister 
state. 

Thormann  v.  Frame,  supra. 

Mr.  Justice  McRoyiiolds  delivered  the 
opinion  of  the  court: 

Respondent,  Eine  J.  Gould  Dunlevy,  in- 
stituted this  suit  in  the  superior  court, 
Marin  county,  California,  January  14,  1910, 
against  petitioner  and  Joseph  W.  Gould, 
her  father,  to  recover  $2,479.70,  the  sur- 
render value  of  a  policy  on  his  life  which 
she  claimed  had  been  assigned  to  her  in 
1893,  and  both  were  duly  served  with  proc- 
ess while  in  that  state.  It  was  removed 
to  the  United  States  district  court,  Febru- 
ary 16,  1010,  and  there  tried  by  the  judge  in 
May,  1912,  a  jury  having  been  expressly 
waived.  Judgment  for  amount  claimed  was 
affirmed  by  the  circuit  court  of  appeals. 
204  Fed.  070,  130  C.  C.  A.  473,  214  Fed.  1. 

The  insurance  company  by  an  amended 
answer  filed  December  7,  1911,  set  up  in 
defense  (1)  that  no  valid  assignment  had 
been  made,  and  (2)  that  Mrs.  Dunlevy  was 
concluded  by  certain  judicial  proceedings 
in  Pennsylvania  wherein  it  had  been  gar- 
nished and  the  policy  had  been  adjudged  to 
be  the  property  of  Gould.  Invalidity  of 
the  assignment  is  not  now  urged;  but  it  is 
earnestly  insisted  that  the  Pennsylvania 
proceedings  constituted  a  bar. 

In  1907  Boggs  &,  Buhl  recovered  a  valid 
personal  judgment  by  default,  after  domi- 
ciliary service,  against  Mrs.  Dunlevy,  in  the 
common  pleas  court  at  Pittsburgh,  where 
1141 


she  then  resided.  During  1909,  '^e  tontiae 
dividend  period"  of  the  life  policy  h&Tiiig 
expired,  the  insurance  [520]  company  be- 
came liable  for  $2,479.70,  and  this  suni  was 
claimed  both  by  Gould,  a  citizen  of  Penn- 
sylvania, and  his  daughter,  who  had  re- 
moved to  California.  In  November,  1909, 
Boggs  &  Buhl  caused  issue  of  an  execution 
attachment  on  their  judgment,  and  both 
the  insurance  company  and  Gould  were 
summoned  as  garnishees.  He  appeared,  de- 
nied assignment  of  the  policy,  and  claimed 
the  full  amount  due  thereon.  On  February 
6,  1910, — after  this  suit  was  b^un  in  Cali- 
fornia,— the  company  a'hswered,  admitted 
its  indebtedness,  set  up  the  conflicting 
claims  to  the  fund,  and  prayed  to  be  ad- 
vised as  to  its  rights.  At  the  same  time  it 
filed  a  petition  asking  for  a  rule  upon  the 
claimants  to  show  clause  why  they  should 
not  interplead  and  thereby  ascertain  who 
was  lawfully  entitled  to  the  proceeds,  and, 
further,  that  it  might  be  allowed  to  pay 
amount  due  into  court  for  benefit  of  proper 
party.  An  order  granted  the  requested 
rule,  and  directed  that  notice  be  given  to 
Mrs.  Dunlevy  in  California.  This  was  done, 
but  she  made'^no  answer  and  did  not  ap- 
pear. Later  the  insurance  company  filed  a 
second  petition,  and,  upon  leave  obtained 
thereunder,  paid  $2,479.70  into  court,  March 
21,  1910.  All  parties  except  Mrs.  Dunlevy 
having  appeared,  a  feigned  issue  was 
framed  and  tried  to  determine  validity  of 
alleged  transfer  of  the  policy.  The  jury 
found,  October  1,  1010,  there  was  no  valid 
assignment,  and  tliereypon,  under  an  order 
of  court,  the  fund  was  paid  over  to  Gould. 
Beyond  doubt,  without  the  necessity  of 
further  personal  service  of  process  upon 
Mrs.  Dunlevy,  tlie  court  of  common  pleas 
at  Pittsburgh  had  ample  power  through 
garnishment  proceedings  to  inquire  whether 
she  held  a  valid  claim  against  the  insurance 
company,  and,  if  found  to  exist,  then  to 
condemn  and  appropriate  it  so  far  as  neces- 
sary to  discharge  the  original  judgment. 
Although  herself  outside  the  limits  of  the 
state,  such  disposition  of  the  property 
would  have  been  binding  on  her.  Chicago, 
[521]  R.  I.  &  P.  R.  Co.  V.  Sturm,  174  U.  S. 
710,  43  L.  ed.  1144,  19  Sup.  Ct.  Rep.  797; 
Harris  v.  Balk,  108  U.  S.  215,  226,  227,  49  L. 
ed.  1023,  1028,  25  Sup.  Ct.  Rep.  625,  3  Ann. 
Cas.  1084;  Louisville  k  K.  R.  Co.  v.  Deer, 
200  U.  S.  176,  50  L.  ed.  426,  26  Sup.  Ct 
Rep.  207;  Baltimore  k  0.  R.  Co.  v.  Host- 
etter,  240  U.  S.  620,  ante,  829,  36  Sup.  Ct 
Rep.  475;  Shinn,  Attachment  &  Garnish- 
ment, §  707.  See  Brigham  v.  Fayer  weather, 
140  Mass.  411,  413,  5  N.  £.  265.  But  the 
interpleader  initiated  by  the  company  was 
an  altogether  different  matter.  This  was 
an  attempt  to  bring  about  a  final  and  con- 

141  V.  8. 


1015. 


DUEL  V.  HOLUNS. 


521-523 


elufliTe  adjudication  of  her  personal  rights, 
not  merely  to  discover  property  and  apply 
it  to  debts.  And  unless  in  contemplation 
of  law  she  was  before  the  court,  and  re- 
quired to  respond  to  that  issue,  its  orders 
and  judgments  in  respect  thereto  were  not 
binding  on  her.  Pennoyer  v.  Neff,  95  U. 
S.  714,  24  L.  ed.  565;  Shinn,  AtUchment 
A  Garnishment,  §  674.  See  Cross  v.  Arm- 
strong, 44  Ohio  St.  613,  623,  625,  10  N.  £. 
160. 

Counsel  maintain  that  having  been  duly 
summoned  in  the  original  suit  instituted  by 
Boggs  &,  Buhl  in  1007,  and  notwithstanding 
entry  of  final  judgment  therein,  "Mrs.  Dun- 
levy  was  in  the  Pennsylvania  court  and  was 
bound  by  every  order  that  court  made, 
whether  she  remained  within  the  jurisdic- 
tion of  that  court  after  it  got  jurisdiction 
over  her  person  or  not;"  and  hence,  the 
argument  is,  "When  the  company  paid  the 
money  into  court  where  she  was,  it  was 
just  the  same  in  legal  effect  as  if  it  had 
paid  it  to  her."  This  position  is  supposed 
to  be  supported  by  our  opinion  in  Michigan 
Trust  Co.  V.  Ferry,  228  U.  S.  346,  57  L.  ed. 
867,  33  Sup.  Ct.  Rep.  530,  where  it  is  said 
(p.  353) :  "If  a  judicial  proceeding  is 
begun  with  jurisdiction  over  the  person  of 
the  party  concerned,  it  is  within  the  power 
of  a  state  to  bind  him  by  every  subsequent 
order  in  the  cause.  Nations  v.  Johnson,  24 
How  105,  203,  204,  16  L.  ed.  G28,  631,  632. 
This  is  true  not  only  of  ordinary  actions,  but 
of  proceedings  like  the  present.  It  is  with- 
in the  power  of  a  state  to  make  the  whole 
administration  of  the  estate  a  single  pro- 
ceeding, to  provide  that  one  who  has  under- 
taken it  within  the  jurisdiction  shall  be 
subject  to  the  order  of  the  court  in  the 
matter  until  the  administration  [522]  is 
closed  by  distribution,  and,  on  the  same 
principle,  that  he  shall  be  required  to  ac- 
count for  and  distribute  all  that  he  receives, 
by  the  order  of  the  probate  court." 

Of  course  the  language  quoted  had  ref- 
erence to  the  existing  circumstances,  and 
must  be  construed  accordingly.  The  judg- 
ment under  consideration  was  fairly  with- 
in the  reasonable  anticipation  of  the  exec- 
utor when  he  submitted  himself  to  the 
probate  court.  But  a  wholly  different  and 
intolerable  condition  would  result  from  ac- 
ceptance of  the  theory  that,  after  final  judg- 
ment, a  defendant  remains  in  court  and 
subject  to  whatsoever  orders  may  be  entered 
under  title  of  the  cause.  See  Wetmore  v. 
Karnck,  205  U.  S.  141,  151,  51  L.  ed.  745, 
748,  27  Sup.  Ct.  Rep.  434;  Freeman,  Judgm. 
4th  ed.  f  103.  The  interpleader  proceed- 
ings were  not  essential  concomitants  of  the 
original  action  by  Boggs  &,  Buhl  against 
Dunlevy,  but  plainly  collateral;  and,  when 
aummoned  to  respond  in  that  action,  she 
«0  li.  ed; 


was  not  required  to  anticipate  them. 
Smith  V.  Woolfolk,  115  U.  S.  143,  148,  149, 
29  L.  ed.  357,  359,  360,  5  Sup.  Ct.  Rep. 
1177;  Reynolds  v.  Stockton,  140  U.  S.  254, 
260,  35  L.  ed.  464,  469,  11  Sup.  Ct.  Rep. 
773;  Owens  v.  Henry  (Owens  v.  McCloskey) 
161  U.  S.  642,  646,  40  L.  ed.  837,  838,  16 
Sup.  Ct.  Rep.  693;  Hovey  v.  Elliott,  167 
U.  S.  409,  42  L.  ed.  215,  17  Sup.  Ct.  Rep. 
841;  Freeman,  Judgm.  4th  ed.  §  143. 

It  has  been  affirmatively  held  in  Penn- 
sylvania that  a  judgment  debtor  is  not  a 
party  to  a  garnishment  proceeding  to  con- 
demn a  claim  due  him  from  a  third  person, 
and  is  not  bound  by  a  judgment  dischar- 
ging the  garnishee  (Ruff  v.  Ruff,  85  Pa. 
333);  and  this  is  the  generally  accepted 
doctrine.  Shinn,  Attachment  A  Garnish- 
ment, §  725.  Former  opinions  of  this 
court  uphold  validity  of  such  proceedings 
upon  the  theory  that  jurisdiction  to  con- 
demn is  acquired  by  service  of  effective  proc- 
ess upon  the  garnishee. 

The  established  general  rule  is  that  any 
personal  judgment  which  a  state  court  may 
render  against  one  who  did  not  voluntarily 
submit  to  its  jurisdiction,  and  who  is  not 
a  citizen  of  the  state,  nor  served  with  proc- 
ess within  its  [523]  borders,  no  matter 
what  the  mode  of  service,  is  void,  because 
the  court  had  no  jurisdiction  over  his  per- 
son. Pennoyer  v.  Neff,  supra;  Freeman, 
Judgm.  4th  ed.  §  120a;  Black,  Judgm.  2d 
ed.  §§  904  and  005. 

We  are  of  opinion  that  the  proceedings  in 
the  Pennsylvania  court  constituted  no  bar 
to  the  action  in  California,  and  the  judg- 
ment below  is  accordingly  affirmed. 


ARTHUR  B.  DUEL,  Appt., 

V. 

HARRY  B.  HOLTJNS  et  al..  Individually 
and  as  Members  of  the  Firm  of  H.  B. 
Hollins  &  Company,  Alleged  Bankrupts, 
and  A.  Leo  Everett,  Receiver.     (No.  352.) 


WIENER,  LEVY,  k  COMPANY,  Appts., 

V. 

HARRY  B.  HOLLINS  et  al.;  Individually 
and  as  Members  of  the  Firm  of  H.  B. 
Hollins  &  (Dompany,  Alleged  Bankrupts, 
and  A.  Leo  Everett,  Receiver.    (No.  353.) 

(See  S.  C.  Reporter's  ed.  623-631.) 

Bankruptcy  »  assets  ^  shares  of  atock 
In  possesHion  of  bankrupt  Inroker. 

The  shares  represented  by  a  certifi- 
cate of  stock  in  a  corporation,  found  in  the 
possession  of  a  banicrupt  firm  of  stock 
brokers,  though  insufficient  fully  to  satisfy 
those  of  its  customers  for  whom  it  had 
bought  shares  in  such  corporation,  ahould 
be  allotted  to  such  customers  pro  rata,  al- 

114S 


SUPREME  COURT  OF  THE  UNITED  STATES.  Oot.  Tbm, 

tliongh  neli  ibarM  arc  not  the   identical  181S,   unreported;   Re   T.  A.   Melntjn  k 

one*  pnrduued  for  may  of  aueb  customerB.  Co.   104  C.   C.   A.  424,  181  Fed.  MO-  It 

"oif^^'snr'ct  ^8  ]""'"'■   "'■   •■    *"  Enni^  109  C.  C.  A.  478,  187  Fed.  788;  OtJ 

Bank    v.   BUckmore,  Sr   C.    C.   A.   614,  41 

[Nub.  36£  u)d  353.]  V.   5.   App.   617,   7fi   Fed.   771;    Ciawford 

Cottnt;    V.    Strawn,    IS    LJl.A.(N.S.)    IIOO^ 

Argued  Uay  4  and  5,  1918.    Decided  June  84  C.  C.  A.  553,  IG7  Fed.  40;  Re  Berr;,  Tt 

6,  1916.  C.    C.    A.    124,    140    Fed.    176;    Thonui  r. 

Taggart,  £09  U.  S.  385,  %2  L.  ed.  84S,  » 

TWO  APPKAU3  from  tbe  United  SUtea  Sup.  a.  Rep.  619;   Re  Berry,  77  C.  C.  i 

Circuit  Court  of  Appeala  for  the  See-  434,  147   Fed.  209;    Re  A.  O.  Brown  t  Q>. 

ond  Circuit  to  review   a   decree  which  re-  ISO   Fed.   432,   113   C.   C.  A.   34B,  103  Fed. 

versed  a  decree  of  the  Dietrict  Court  for  the  M,  90  C.  C.  A.  345,  175  Fed.   769.  113  a 

Southern  DUtrict  of  New  York  for  the  al-  C.  A.  354,  103  Fed.  30;  Pint  Nat.  Bank  i. 

lotnent  pro  rata  to  customera  of  iharea  of  Littlefleld,   226   U.   S.   110,  S7   L.  ed.  145, 

stock  fonod  in  the  poseeuion  of  a  bankrupt  33    Sup.    Ct.   Rep.    78;    Schuyler   v.   littlf 

firm  of  itock  broken.    Reverted,  and  decree  Held,  232  U.  S.  707,  68  L.  ed.  806,  34  Snf 

of  District  Court  affirmed.  Ct.  Rep.   466;    Knauth  v.  Lovell,  212  Fii 

See  same  case  below,  135  C.  C.  A.  312,  337;   National  City  Bank  v.  Hotcbkiss,  HI 

219  Fed.  544.  U.  S.   GO,  58,  68  L.  ed.   115,  120,  34  Sup^ 

The  faeU  are  sUted  in  the  opinion.  Ot.    Rep.    20;    Scotteu    v.    Littlefleld,   m 

u,    ii..^_.  1.   nr    r       -.  ..                 j  ^-  S-  407,  69  L.  ed,  280,  36  Sup.  Ct.  Ref 

Mr.  PrederlcL  W.  LonRfel  ow  arguri  ^^    j,        ,  Roedenbeck,  LJL4aei6E,  O. 

the  cBUie,  and,  with  Mr.  Lewrls  L.  Delaaeld,  r.   n    *          oot  v^    lAa 

Th.  p.Utta..r,   Dml,  1,  «t.lW   to  M    „rtU«U.  to?  .b.,.  ot  .  ..rUa  ktoK 
ta»t  «.  .1  tl,.  100  jta,«,  .1  Coppr  M«k    ,^  ^^^^       „  ,       „  ^^,,,„^d 

2>An  m  tb.  boi  o    HolUn.  I  Comp..,    „  M,^a,^t.  thm  wltkoul  npM  U 
biita.  JS^  ■'  *•  '"^"^  "'°"°"  ''  '•  "J'"^  - 

L.  «1   BM,  2a  S.p.  Ct.   B.p.  618,  1.  i.n.    "'  ''""""  "•'  "'"'t^'-V  <"  "..  I~»- 
Cm.    081;    Beiton   t.   Kewler.   226    U.    S.       tJT^.'.  -    r..~.,t.,    i-   .-.,    n-     va 

?'■ "  ^  i:^^.^'^'A  ^u'\?v  45'^'^?.'supp''^2^;*'ia;jhfr,.'^:«S 

2,^3,';,  *       ^'«        L^-  "■  "  ^-  "  N.  Y.  236;   Skiff  V.  Stoddard.  63  Ow! 

ed.  1047,  33  Sup.  a.  Rep.  600.  ^g^^   j.^    ^.R^.    102.    26    Atl.    BM,  28  Atl 

Mr.  Stuart  HcNamara  ar^ed  the  cause,  104;   lAwrenoe  v.  Maxwell.  63  N.  Y.  1>. 

and,   with  Mr.  Carl  A.  de  Oeradorff,   filed  A  itoekbroker,  in  the  aboenea  of  ipecisl 

a  brief  for  Wiener,  Levy,  t  Company:  agreement,  ia  bound  to  allot  speciflc  certil- 

Appellanta  Wiener,  I<evy,  ft  Company  are  cates  to  each  cuatomer  upon  diepostng  ef 

entitled     to    at     leait    an     undivided     %g  tboie  acquired   for.  or  received  from,  bin. 

interest  in  the  100  ahares  of  Amalgamated  and  will  be  preanmed  to  have  done  so,  ii 

Copper  stodc  represented  by  eertiflcate  No.  the  absence  of  aubatantiva  evidence  to  tlM 

20^73,  found  in  the  box  of  Holljns  ft  Com-  contrary. 

pany  at  the  time  of  the  filing  of  the  bank-  Douglas  v.  Carpenter,  17  App.  Dtv.  3J]| 

ruptcy   petition.  46  N.  Y.  Supp.  219;  L^wience  v.  MaiweU, 

Ibid.;    Sklfr   V.   Stoddard.   63   Conn.    19B,  53   N.   Y.   23;    Markham  v.  Jaudon,  41  N. 

21  L-Rji.  102.  26  Atl.  874,  28  Atl.  104.  Y.  235;    Schuyler  v.  Littlefleld,    232  V.  8. 

„      _,.„,  ■       -.    ,         ,                       ...  707,  58  L.  ed.  806,  34  Sup.  «.   Hep.  4M; 

Mr.  Wllltam  C    Armatrong  argued  the  ^homa.  v.  Taggart  200  U.  S.  386,  «L  ri 

mT'  r  V7     R  r'h^„       T.'"^"'    845.  2B  Sup.  ^  Rep.  610;    Re  T.  A.  M^ 

med  a  br.ef  for  Harry  B.  Hollin.  ct  .1..  j^^^   ^  ^    1„  ^P  ^    ^  ^^^  ^^ 

A    marginal    customer    of   a   rtockbroker  ^se.    Re   T.   A.    Mclntyr-    A    ci.    84  1» 

who    seeka    to    reclaim    stock    after    hank-  3^^,.  r        1     r.  T.  A.  Mclntyre  k  fo 

ruptcy  must  identify  affirmatively  the  cer-  24  Am.  Bankr.  Rep.  13;  Slmpaon  t.  3a»t} 

tiflcatea  allotted  to  him.  or  prove  that  no  city   Contracting   Co.   165   N.   T.   193,  » 

certiScatea   were  apeciflcally   set  aside  for  uu^.  796,  58  N.  E.  806;  Crawford  ComV 

him,    and    all    doubt   must    be    resolved    in  v.  Strawn,   15  LJLA.(N.S.)    1100.  84  C.  C 

favor  of  tbe  receiver.    The  decision  in  Gor-  A.  553,  167  Fed.  49;   City  Bank  t.  BUek- 

man  t.  LitUefield.  220  U.  S.  10,  57  L.  ed.  more,  21  C.  C.  A.  514,  43  U.  8.  App.  SIT. 

1047,   33    Sup.   Ct.   Rep.   600,   is   not   ap-  75  Fed.  773. 

plicable  to  the  facta  in  the  case  at  bar.  The  stock  nought  to  be  i«clalDwd  in  lU 

Re  S.  H.  P.  Pen  ft  Co.  dated  May  27,  proceeding  baa  been  •bown  to  be  the  jnf 

i'44  141  V.  •• 


1015. 


DUEL  V.  HOLLU^S. 


624-527 


erty  of  Landau  to  the  extent  of  50  sharea, 
hj  positive  identification,  and  any  general 
identification  must  yield  thereto. 

Skiff  v.  Stoddard,  63  Conn.  198,  21  L.RA. 
102,  26  Atl.  874,  28  Atl.  104. 

The  rights  of  appellants  were  fixed  at 
petition  filed,  and  they  can  only  recover 
the  proportion  of  the  value  of  the  securi- 
ties identified,  which  their  total  credit  bal- 
ance at  that  time  bore  to  the  market  value 
of  all  their  securities. 

Ke  T.  A.  Mdntyre  &,  Co.  24  Am.  Bankr. 
Rep.  4;  Re  Jamison  Bros.  &  Co.  126  C.  C. 
A.  363,  209  Fed.  541. 

Mr.  Justice  McReynolds  delivered  the 
opinion  of  the  court: 

HoUins  &  Company,  brokers  and  members 
of  the  New  York  Stock  Exchange,  went  into 
bankruptcy  November  13,  1913. 

On  October  13,  1912,  they  purchased  for 
appellant  Duel  100  shares  of  Amalgamated 
Copper  Company  stock — "Copper" — ^and 
received  certificates  therefor-  which  they 
subsequently  disposed  of  by  deliveries  on 
account  of  sales  for  customers. 

October  25,  1912,  they  purchased  for  one 
Bamberger  30  shares  of  "Copper,"  received 
a  certificate  therefor,  and  pledged  this  for 
their  own  benefit  with  the  National  Bank 
of  Commerce. 

[525]  February  25,  1913,  they  purchased 
for  appellants  Wiener,  Levy,  &  Company 
50  shares  of  "Copper"  and  received  a  certifi- 
cate. About  June  13,  1913,  this  passed  out 
of  their  control  "for  and  in  behalf  of 
another  customer." 

Prior  to  November  1,  1913,  they  were 
directed  to  purchase  for  one  Landau  100 
shares  of  "Copper,"  and  their  books  charge 
them  as  carrying  this  number  for  his 
account. 

At  the  close  of  business  November  7, 
1913,  they  were  responsible  to  customers 
for  280  shares  of  "Copper" — Bamberger  30, 
Duel  100,  Wiener,  Levy,  &  Company  50, 
Landau  100;  and  they  held  in  actual  posses- 
sion— "in  the  box" — only  two  certificates 
for  50  shares  each.  November  10,  1913, 
they  used  these  in  making  delivery  on  a 
short  sale.  On  the  same  day  that  sale 
was  "covered,"  and  on  the  11th  they  received 
and  placed  in  their  box  a  certificate  (No. 
29,373)  for  100  shares. 

When  bankruptcy  occurred  (November 
13th)  their  entire  liability  to  "long"  cus- 
tomers on  account  of  "Copper"  arose  from 
purchases  of  280  shares  as  above  narrated; 
and  they  actually  held  only  certificate  No. 
29,373,  received  two  days  before.  To  secure 
their  own  loans  they  had  on  pledge  with 
Kings  County  Trust  Company  and  National 
Bank  of  Commerce^  respectivel|y,  certificates 
•0  Ii.  ed. 


for  50  and  30  shares;  and  they  also  had  an 
outstanding  short  sale  of  100  shares. 

In  the  deposition  of  Allaire,  bankrupts' 
cashier,  it  is  said: 

"The  said  certificate  No.  29,373  was  never 
marked  or  otherwise  identified  by  HoUins  k 
Company  as  the  property  of  any  particular 
person  or  customer,  or  placed  in  any 
envelop  bearing  any  indication  that  the  said 
stock  was  held  for  the  special  account  of 
any  particular  customer  or  [526]  person, 
and  no  memorandum  appears  upon  the 
books  or  records  of  Hollins  &  Company  to 
the  effect  that  said  stock  was  purchased  or 
held  for  the  special  or  particular  account 
of  any  one  customer  or  person. 


«i 


It  was  the  practice  of  Hollins  k  Com- 
pany to  use  certificates  of  stock  on  hand 
in  making  deliveries  thereof,  indiscrimi- 
nately and  without  regard  to  particular  cer- 
tificates or  certificate  numbers,  excepting 
only  cases  where  customers  deposited  cer- 
tificates of  stock  standing  in  their  own 
names  as  margin  for  their  own  accounts, 
where  such  certificates  were  usually  retained 
in  kind,  but  at  no  time  from  the  1st  day  of 
November,  1913,  until  and  including  the 
13th  day  of  November,  1913,  were  there  any 
certificates  for  Amalgamated  Copper  stock 
standing  in  the  name  of  any  customers. 

"Certificate  No.  29,373,  representing  100 
shares  of  Amalgamated  Copper  stock,  was 
not  purchased  or'received  for  the  account  of 
any  member  of  the  firm  of  Hollins  k  Com- 
pany, or  for  the  personal  account  of  said 
firm  as  a  whole,  but  was  received  from  the 
Stock  Exchange  Clearing  House  in  the  usual 
course  of  business  as  representing  the  bal- 
ance of  Amalgamated  Copper  stock  due  said 
firm  on  balance  on  said  date." 

The  record  indicates  that  all  transactions 
in  question  were  made  in  pursuance  of  the 
usual  contracts  for  speculative  purchases 
and  sales  of  stock  upon  margins. 

By  timely  petitions  appellants  claimed 
that,  in  adjusting  their  accounts  for  final 
settlement  with  bankrupts'  estate,  they  were 
entitled  to  have  allotted  to  them  respec- 
tively 100/280  and  50/280  of  the  100  shares 
of  "Copper"  represented  by  certificate  No. 
29,373.  The  district  court,  southern  dis- 
trict of  New  York  (212  Fed.  317) ,  sustained 
their  position  and  ordered  accordingly,  but 
the  circuit  court  of  appeals  reached  a  dif- 
ferent conclusion  and  reversed  the  order. 
135  C.  C.  A.  312,  219  Fed.  544. 

[527]  The  facts  of  the  present  case 
differ  in  some  respects  from  those  presented 
in  Gorman  v.  Littlefield,  229  U.  S.  19,  57 
L.  ed.  1047,  S3  Sup.  Ct.  Rep.  690;  but  we 
think  a  logical  application  of  prindplea 
there  approved  requires  disagreement  with 


527-629 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Tnat, 


the  drcuit  court  of  appeals  and  approval 
of  order  in  the  district  court. 

In  view  of  our  former  opinions  it  must 
be  taken  as  settled:  That  bankrupts  and 
their  customer  stood  in  the  relation  of 
pledgee  and  pledgeor.  That  in  their  deal- 
ings stock  certificates  issued  by  same  cor- 
poration lacked  individuality,  and,  like 
facsimile  storage  receipts  for  gold  coin,  could 
properly  be  treated  as  indistinguishable 
tokens  of  identical  values.  That,  as  between 
themselves,  after  paying  amount  due  brok- 
ers, the  customer  had  a  right  to  demand 
delivery  of  stocks  purchased  for  his  account; 
and  such  delivery  might  have  been  made 
during  iusolvency  without  creating  a  prefer- 
ence. Richardson  v.  Shaw,  209  U.  S.  366, 
52  L.  ed.  836,  28  Sup.  Ct.  Rep.  612,  14  Ann. 
Cas.  981 ;  Thomas  v.  Taggart,  209  U.  S.  386, 
52  L.  ed.  845,  28  Sup.  Gt.  Rep.  519;  Sexton 
V.  Kesslcr  &  Co.  226  U.  S.  90,  56  L.  ed.  996, 
32  Sup.  Ct.  Rep.  657 ;  (yorman  v.  Littlefield, 
supra. 

Summing  up  the  doctrine  of  Richardson 
V.  Shaw  concerning  legal  relationship  be- 
tween customer  and  broker  in  buying  and 
liolding  shares,  we  said  in  Qorman  v.  Lit- 
tlefield  (pp.  23,  24) :  "It  was  held  that  the 
certificates  of  stock  were  not  the  property 
itself,  but  merely  the  evidence  of  it,  and 
tliat  a  certificate  for  the  same  number  of 
shares  represented  precisely  the  same  kind 
and  value  of  property  as  another  certificate 
for  a  like  number  of  shares  in  the  same  cor- 
poration ;  that  the  return  of  a  different  cer- 
tificate or  the  substitution  of  one  certificate 
for  another  made  no  material  change  in  the 
property  right  of  the  customer;  that  such 
shares  were  unlike  distinct  articles  of  per- 
sonal property,  differing  in  kind  or  value, 
as  a  horse,  wagon,  or  harness,  and  that 
stock  has  no  earmark  which  distinguishes 
one  share  from  another,  but  is  like  grain  of 
a  uniform  quality  in  an  elevator,  one  bushel 
being  of  the  same  kind  and  value  as  another. 
It  was  therefore  [528]  concluded  that  the 
turning  over  of  the  certificates  for  the 
shares  of  stock  belonging  to  the  customer, 
and  held  by  the  broker  for  him,  did  not 
amount  to  a  preferential  transfer  of  the 
bankrupt's  property." 

And  we  there  further  declared  (pp.  24, 
26) :  "It  is  therefore  unnecessary  for  a 
customer,  where  shares  of  stock  of  the  same 
kind  are  in  the  hands  of  a  broker,  being 
held  to  satisfy  his  claims,  to  be  able  to  put 
his  finger  upon  the  identical  certificates  of 
stock  purchased  for  him.  It  is  enough  that 
the  broker  has  shares  of  a  certain  kind 
which  are  legally  subject  to  the  demand  of 
the  customer.  And  in  this  respect  the  trus- 
tee in  bankruptcy  is  in  the  same  position  as 
the  broker.  Richardson  v.  Shaw,  supra. 
It  is  said,  however,  that  the  shares  In  this 
1140 


I  particular  case  are  not  so  identified  aa  to 

I  come  within  the  rule.  But  it  does  appear 
that  at  the  time  of  bankruptcy  certificates 
were  found  in  the  bankrupt's  possession  in 
an  amount  greater  than  those  which  ■honld 
I  have  been  on  hand  for  this  customer,  and 
the  significant  fact  is  shown  that  no  other 
customer  claimed  any  right  in  those  shares 
of  stock.  It  was,  as  we  have  seen,  the  duty 
of  the  broker,  if  he  sold  the  shares  specifi- 
cally purchased  for  the  appellant,  to  buy 
others  of  like  kind,  and  to  keep  on  hand, 
subject  to  the  order  of  the  customer,  certifi- 
cates sufficient  for  the  legitimate  demands 
upon  him.  If  he  did  this,  the  identification 
of  particular  certificates  is  unimportant. 
Furthermore,  it  was  the  right  and  duty  ol 
the  broker,  if  he  sold  the  certificates,  to  use 
his  own  funds  to  keep  the  amount  good, 
and  this  he  could  do  without  depleting  his 
estate  to  the  detriment  of  other  creditors 
who  had  no  property  rights  in  the  certifi- 
cates held  for  particular  customers.  No 
creditor  could  justly  demand  that  the  estate 
be  augmented  by  a  wrongful  conversion  of 
the  property  of  another  in  this  manner,  or 
the  application  to  the  general  estate  of 
property  which  never  rightfully  belonged  to 
the  bankrupt." 

[529]  When  the  bankruptcy  which  occa- 
sioned Gorman  v.  Littlefield  took  place,  the 
broker's  box  contained  certificates,  not 
specifically  allotted,  for  360  shares  of  the 
designate  stock,  and  the  appellant's  claim 
for  260  was  the  only  one  presented  by  a 
customer.  We  held  that,  under  the  circum- 
stances, no  more  definite  identification  was 
essential,  and  approved  his  contention.  If, 
in  the  instant  cause,  a  certificate  for  280 
shares  of  "Copper"  instead  of  100  had  been 
on  hand,  the  four  customers  for  whom  that 
number  were  purchased  might  successfully 
claim  them  under  rule  approved  in  Gor- 
man's Case.  And  merely  because  the  one 
actually  in  the  box  represented  insuffi- 
cient shares  fully  to  satisfy  all  is  not 
enough  to  prevent  applica^n  of  that  rule 
so  far  as  the  circumstances  will  permit. 
The  District  Court  properly  awarded  to  ap- 
pellants their  fnv  rata  parts  of  the  100 
shares. 

Decree  of  Circuit  Court  of  Appeals  re- 
versed, and  decree  of  District  Court  affirmed. 

Mr.  Justice  Pitney,  with  whom  concurred 
Mr.  Justice  Hughes,  dissenting: 

In  Qorman  v.  Littlefield,  229  U.  8.  19,  67 
L.  ed.  1047,  33  Sup.  Ct.  Rep.  690,  the  rea- 
soning embodied  in  the  following  extract 
from  the  opinion  (p.  24)  was,  aa  I  take  it, 
essential  to  vindicate  the  conclusion  reached 
by  the  court:  "It  is  said,  however,  that  the 
shares  in  this  particular  case  are  not  to 
identified  aa  to  come  within  the  rule.    But 

141  V.  8. 


1915. 


VIRGINIA  V.  WEST  VIBGINIA. 


529-532 


it  does  appear  that  at  the  time  of  bank- 
ruptcy certificates  were  found  in  the  bank- 
rupt's possession  in  an  amount  greater  than 
those  which  should  have  been  on  hand  for 
this  customer,  and  the  significant  fact  is 
shown  that  no  other  customer  claimed  any 
right  in  those  shares  of  stock.  It  was,  as 
we  have  seen,  the  duty  of  the  broker,  if  he 
sold  the  shares  specifically  purchased  [530] 
for  the  appellant,  to  buy  others  of  like 
kind,  and  to  keep  on  hand,  subject  to  the 
order  of  the  customer,  certificates  sufficient 
for  the  legitimate  demands  upon  him.  If 
he  did  this,  the  identification  of  particular 
certificates  is   unimportant." 

In  the  present  case,  it  does  not  appear 
that  at  the  time  of  the  inception  of  the 
bankruptcy  proceedings  certificates  were 
found  in  the  brokers'  possession  equal  in 
amount  to  those  which  should  have  been  on 
hand ;  several  customers  are  laying  claim  to 
the  shares  that  were  on  hand;  and  it  affirm- 
atively appears  that  the  brokers,  having 
sold  the  shares  specifically  purchased  for 
these  customers,  had  not  bought  others  of 
like  kind,  nor  kept  on  hand  certificates  suf- 
ficient for  the  claims  of  the  customers  upon 
them.  Not  only  was  no  stock  kept  on  hand 
to  answer  the  claims  aggregating  280  shares, 
but  it  afiirmatively  appears  that  the  100 
shares  that  were  on  hand  were  not  acquired 
with  intent  to  make  restitution.  The  depo- 
sition of  Allaire,  the  only  man  having 
knowledge  upon  the  subject,  was  that  cer- 
tificate No.  29,373,  representing  100  bhares 
of  Amalgamated  Copper  stock,  "was  re- 
ceived from  the  Stock  Exchange  Clearing 
House  in  the  usual  course  of  business  as 
representing  the  balance  of  Amalgamated 
Copper  stock  due  said  firm  on  balance  on 
said  date," — the  date  being  one  unconnected 
with  any  transaction  for  account  of  the 
appellants  or  either  of  them. 

It  is  one  thing  to  infer  an  intent  to  make 
restitution  to  a  customer  when  the  acts 
have  been  done  that  are  necessary  to  effect 
restitution;  it  is  an  entirely  different  mat- 
ter to  infer  an  intent  to  make  restitution 
when  no  restitution  has  in  fact  been  made. 
The  presumption  of  an  intent  to  restore 
fractional  interests  in  this  case  must  rest 
on  the  merest  fiction;  and  such  a  fiction 
ought  not  to  be  indulged  in  cases  of  this 
character,  where  it  will  inevitably  result 
in  creating  a  series  of  arbitrary  [531] 
preferences,  contrary  to  the  equity  of  the 
bankruptcy  act. 

I  think  the  decree  of  the  Circuit  Court  of 
Appeals  (135  C.  C.  A.  312,  219  Fed.  544) 
ought  to  be  affirmed,  and  am  authorized  to 
•ay  that  Mr.  Justice  Hughes  concurs  in 
this  dissent. 
40  li.  ed. 


COMMONWEALTH  OF  VIRGINIA,  Com- 
plainant, 

V. 

STATE  OF  WEST  VIKGINIA. 
(See  S.  C.  Reporter's  ed.  531-532.) 

Bzecntion  —  against  state. 

Execution  will  not  issue  on  a  money 
judgmciit  against  a  state,  where  the.  state 
legislature  has  not  met  since  the  rendition 
of  the  judgment,  and  will  not  again  meet  in 
regular  session  until  the  assembling  of  a 
new  legislature,  the  members  of  which  have 
not  been  chosen. 

[Matters    as    to    execution*    see    Execution,    In 
Digest   Sup.   Ct.   1008.] 

[No.  2,  Original.] 

Submitted  June  5,  1916.    Decided  June  12. 

1916. 

PETITION    for    a    Writ    of    Execution 
against  the  state  of  West  Virginia  upon 
a  money  judgment  in  favor  of  the  common- 
wealth of  Virginia.    Denied  without  preju- 
dice. 
The  facts  are  stated  in  the  opinion. 

Mr.  John  Garland  Pollard,  Attorney 
General  of  Virginia,  for  the  petition. 

Mr!  A.  A.  liillj.  Attorney  General  of 
West  Virginia,  and  Mr.  John  H.  Holt,  op- 
posed. 

Mr.  Chief  Justice  White  delivered  the 
opinion  of  the  court: 

In  the  original  cause  of  Virginia  y.  West 
Virginia,  on  the  14th  day  of  June,  1915 
[238  U.  S.  202,  59  L.  ed.  1272,  35  Sup.  Ct. 
Rep.  795],  a  decree  was  rendered  in  favor 
of  Virgipia  and  against  West  Virginia  for 
the  sum  of  $12,393,929.50,  with  interest 
thereon  at  the  rate  [532]  of  5  per  centum 
from  July  1st,  1915,  until  paid.  Virginia 
now  petitions  for  a  writ  of  execution 
against  West  Virginia,  on  the  ground  that 
such  relief  is  necessary,  as  the  latter  has 
taken  no  steps  whatever  to  provide  for  the 
payment  of  the  decree.  West  Virginia  re- 
sists the  granting  of  the  execution  on  three 
grounds:  (1)  "Because  the  state  of  West 
Virginia,  within  herself,  has  no  power  to 
pay  the  judgment  in  question,  except 
through  the  legislative  department  of  her 
government,  and  she  should  be  given  an 
opportunity  to  accept  and  abide  by  the  de- 
cision of  this  court,  and,  in  the  due  and 
ordinary  course,  to  make  provision  for  its 
satisfaction,  before  any  steps  looking  to 
her  compulsion  be  taken;  and  to  issue  an 
execution  at  this  time  would  deprive  her  of 
such  opportunity,  because  her  legislature 
has  not  met  since  the  rendition  of  said 
judgment,  and  will  not  again  meet  in  ri^gu- 
lar  aesiion  until  the  second  Wednesday  in 

WW 


«tt.63S 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Dot.  • 


Jkhuaij,  1017,  and  the  membeH  at  that 
bod;  bave  not  jet  been  choseni"  (2)  b«- 
canse  preaumptively  the  it&te  of  West  Vir- 
ginU  hai  do  property  lubject  to  execution; 
and  (3)  beeauM,  although  the  Conatitu- 
tion  Impoaea  upon  this  court  tlie  duty,  and 
grants  it  full  power,  to  couaider  controTer- 
■iea  between  atatet,  and  therefore  authority 
to  render  the  decree  in  question,  yet  with 
the  grant  of  juriidiction  there  naa  con- 
ferred no  authority  whatever  to  enforce  a 
money  judgment  againit  ft  state  if,  in  the 
exercise   of   jurisdiction,   auch   a   judgment 

Without  going  further,  we  are  of  t 
opinion  tliat  the  flrat  ground  furnishes  i 
equate  reason  for  not  granting  the  moti 
at  this  time. 

The  prayer  for  the  issue  ot  a  writ  ol  e 
cution  is  therefore  denied,  without  pre; 
dice  to  the  renewal  of  the  same  after  I 
next  seasiou  of  the  legislature  of  the  stste 
West  Virginia  has  met  and  had  a  reaac 
able  opportunity  to  provide  for  the  pi 
ment  of  the  judgment. 

And  it  is  to  ordered. 


(See  S.  C.  Reporter's  ed.  £33-643.) 

JnAginen  t^  estoppel  bf  —  decree  in  ra 
case  ^  dlamlBBing  without  prejndlc 
1.  The  L&tial  dismissal  of  a  suit  by 
railway  company  to  enjoin  the  enforcemt 
by  state  oHicers  of  a  rate-fliing  law  in 
entirety,  on  the  ground  that  to  enforce  t 
rates  as  fixed  by  the  state  would  result 
confiscation,  although  "without  prejudic 
eatopa  the  railway  company,  when  sued 
the  state  to  recover  back  passenger  fares 
excess  of  the  rates  established  by  law,  c 
lected  during  the  period  covered  bv  an 
junction  granted  in  the  prior  suit,  fn 
state  officers  when  traveling  within  I 
state,  on  state  buiiness,  to  asaert  that  t 
rates  as  fixed  by  the  state  were  so  low 
to  be  confiscatory,  since  the  reservati 
"without  prejudice"  did  not  leave  the  c< 
Iroversy  open  aa  to  the  period  with  whi 

NoTS. — On  conduaiveness  of  judgmen 
generally — see  note*  to  Sharon  v.  Terry, 
L.R.A.  672;  Bollong  v.  Schuyler  Nat.  Bai 
3L.R.A.  142;  Wiesev.  Ban  Francisco Uusii 
Fund  Soc.  T  L.R.A.  677;  Morrill  v.  Morri 
11  L.RJL  165;  Shores  v.  Hooper,  11  L.R. 
308;  Bank  o(  United  SUtes  t.  Beverly, 
h.  ed.  U.  8.  76;  JcAnson  Steel  Street  R 
Co.  v.  Wharton,  38  L.  ed.  U.  8.  428,  a 
Southern  P.  R.  Oo.  T.  United  SUtea,  42 

td.  V.  S.  35S. 

MI4S 


the  decree  dealt,  but  merely  permitted  a  re- 
newal of  the  application  for  relief  if  jmdl- 
fled  by  future  operation  and  changed  eoadi- 

[For    other    OUs,    He    Judsment,    III.    f.    It 

IMKeit   Sup.    Ct.    190S.] 
Estoppel   —   InoonalBtent    poaltions    Id 

JndlclKl  proceedings. 

2.  A  railway  company  which  secured  an 
Injunction  restraining  the  enforcement  ii 
its  entirety  of  a  state  ratc.making  law  a> 
confiscatory  cannot  avoid  the  effect  of  a 
final  decree  of  dismissal  ai  an  estoppel  in 
a  subsequent  suit  by  the  state  to  recover 
excess  passenger  fares  collected  from  state 
officers  during  the  period  covered  by  the 
injunction  by  asserting  that,  because  the 
state  was  not  and  could  not  have  been  a 
party  to  the  prior  suit,  the  restraint  ot  the 
iniunction  did  not  operate  against  the  rste- 
making  power  so  far  aa  the  interest  of  the 
state  is  concerned. 
IPor  otbcr  cat**,  lee  Estoppel,  III.  c.  In  Dlmt 

Bnp.  Ct.  190B.1 

tNo.  16,  Original.] 


MOTION  to  Btriiie  the  defenae  ot  con- 
Bscation  from  the  answer  of  a  railway 
company  in  an  original  action  by  which  a 
state  seeks  to  recover  from  the  railway  com- 
pany passenger  fares  in  excess  of  the  rate* 
establiahed  by  the  state,  paid  by  state  of- 
ficers when  traveling  within  the  state,  on 
state  business.    Motion  granted. 

Thx  facta  are  stated  in  the  opinion. 

Mr.  John  T.  Barker,  Attorney  General 
of  Missouri,  argued  the  cause,  and,  with 
Messrs.  Lee  B.  Ewing,  W.  T.  Rutherford, 
and  Kenneth  C.  Sears,  filed  a  brief  for 
complainant : 

The  injunction  suit  brought  by  defend- 
ant railroad  in  the  district  court  at  KanMS 
City  has  been  finally  determined  and  tlie 
bill  dismissed  and  injunction  dissolved. 
Whatever  money  or  property  defendant  re- 
ceived under  or  by  virtue  of  such  injunction 
or  decree  must  be  restored  to  complainant, 
and  defendant  will  not  be  heard  to  deny 
such  right,  and  cannot  plead  that  such  rates 
were  confiscatory.  lierefore  such  plea 
should  be  stricken  out. 

I*ve  V.  North  American  Co.  —  C,  C.  A. 
— ,  S2e  Fed.  103;  Missouri  Rate  Oases; 
(Knott  T.  Chicago,  B.  A  Q.  R.  Co.)  E30' 
U.  S.  474,  SI  L.  ed.  1G71,  33  Sup.  Ct  Rep. 
075;  Bellamy  v.  St.  Louis,  I.  M.  ft  S.  B.  Co. 
138  C.  C.  A.  442,  220  Fed,  878;  3  Cyc.  462- 
409;  IS  Enc.  PL  &  Pr.  871;  2  Freeman, 
Judgm.  4th  ed.  g  481,  pp.  832-S34;  1  Bead,. 
Inj.p.  34B,  S  343;  Spelling,  Inj.  A  Extr.  Rem. 
%  1098;  1  Joyce,  Inj.  p.  626,  |  343;  Ming  v. 
Suggett,  34  Ho.  3S4,  86  Am.  Dec.  112;  Tnr- 
.  210  Mo.  411,  184  Am. 
t41  V.  S. 


1915. 


MISSOURI  y.  CHICAGO,  B.  &  Q.  B.  00. 


St.  Rep.  739,  109  8.  W.  33;  St.  Louis  r. 
St.  Louis  Gaslight  Co.  70  Mo.  69 ;  St.  Louis 
y.  St.  Louis  (Gaslight  Co.  82  Mo.  349;  Haeb- 
ler  y.  Myers,  132  N.  Y.  363,  15  L.R.A.  588, 
28  Am.  St  Rep.  589,  30  N.  E.  963;  Lake 
Shore  &  M.  S.  R.  Co.  y.  Taylor,  134  111. 
003,  25  N.  E.  588;  Starke  y.  Lewis,  23 
Miss.  151 ;  Sayaimah  Shoe  Factory  y. 
Kaiser,  108  Ga.  767,  33  S.  E.  404;  New 
York  y.  Brown,  179  N.  Y.  303.  72  N.  E. 
114;  Chicot  Lumber  Co.  y.  Dardell,  84  Ark. 
140,  104  S.  W.  1100;  Pulteney  y.  Warren, 

6  Ves.  Jr.  73,  5  Reyised  Rep.  226;  Oum- 
mings  y.  Mugge,  94  111.  186;  Van  Zandt  y. 
Argentine  Min.  Co.  2  McCrary,  642,  48  Fed. 
770,  7  Mor.  Min.  Rep.  634 ;  St.  Louis  &  S.  F. 
R.  Co.  y.  Barker,  210  Fed.  902;  Hawkes  y. 
Champion,  Cary,  51;  Dowche  y.  Perrot, 
Cary,  63;  Hill  y.  Portman,  Cary,  140;  Bank 
of  United  SUtes  y.  Bank  of  Washington,  6 
Pet.  8,  8  L.  ed.  299;  Northwestern  Fuel  Co. 
y.  Brock,  139  U.  S.  216,  35  L.  ed.  151,  11 
Sup.  Ct.  Rep.  523;  Ex  parte  Walter  Bros. 
89  Ala.  237,  18  Am.  St.  Hep.  103,  7  ho.  400 ; 
Zimmerman  v.  National  Bank,  50  Iowa, 
133,  8  N.  W.  807 ;  Lytle  y.  Lytle,  94  N.  C. 
522;  Flemings  y.  Riddick,  5  Gratt.  (Va.) 
272,  50  Am.  Dec.  110;  Hier  y.  Anheuser- 
Busch  Brewing  Co.  60  Xeb.  320,  83  N.  W. 
77;   Thompson  y.  Reasoner,  122  Ind.  454, 

7  L.R.A.  495,  24  N.  E.  223;  United  States 
V.  Rothstein,  109  C.  O.  A.  521,  187  Fed. 
208;  Brown  y.  Detroit  Trust  Co.  113  C.  C. 
A.  490,  193  Fed.  622;  Simmons  y.  Price,  18 
Ala.  405;  Ward  y.  Sherman,  155  Cal.  287, 

100  Pac.  864;  Hess  y.  Deppen,  125  Ky.  424, 

101  S.  W.  362,  15  Ann.  Cas.  670;  Bryant  y. 
Fairfield,  51  Me.  149;  Delano  y.  Wilde,  11 
Gray,  17,  71  Am.  Dec.  687;  Peck  y.  Mc- 
lean, 36  Minn.  228,  1  Am.  St.  Rep.  665,  30 
N.  W.  759;  Thompson  v.  Carroll,  36  N.  H. 
21;  Scott  y.  Conover,  10  N.  J.  L.  61;  Mur- 
ray y.  Berdell,  98  N.  Y.  480;  Britton  v. 
PhilHps,  24  How.  Pr.  Ill;  Bickett  v.  Gar- 
ner, 31  Ohio  St.  28;  McFadden  y.  Swiner- 
ton,  36  Or.  336,  59  Pac.  816,  62  Pac.  12; 
Whitesell  v.  Peck,  176  Pa.  170,  35  Atl.  48; 
Gates  y.  Brinkley,  4  Lea,  710;  Peticolas  y. 
Carpenter,  53  Tex.  23;  Stanard  y.  Brown- 
low,  3  Munf.  (Va.)  229;  Keck  v.  Allender, 
42  W.  Va.  420,  20  S.  E.  437;  Singly  v. 
Warren,  18  Wash.  434,  63  Am.  St.  Rep. 
896,  51  Pac.  ]066;Knoxville  v.  Knoxville 
Water  Co.  212  U.  S.  151,  53  L.  ed.  380,  29 
Sup.  Ct.  Rep.  148;  Willcox  y.  Consolidated 
Gas  Oo.  212  U.  S.  19,  53  L.  ed.  382,  48 
L.R.A.(N.S.)  1134,  29  Sup.  Ct.  Rep.  192, 
15  Ann.  Cas.  103^:  Des  Moines  Gas  Co.  y. 
Des  Moines,  238  U.  S.  153,  59  L.  ed.  1244, 
P.  U.  R.  1915D,  577,  35  Sup.  Ct.  Rep.  811 ; 
St.  Louis  k  S.  F.  R.  Co.  y.  Barker,  210  Fed. 
912;  State  ex  reL  Barker  y.  Chicago  &  A.  R. 
Co.  216  Fed.  564. 

•0  Ii.  ed. 


Where  a  carrier  alleges  a  rate  to  be  con- 
fiscatory, it  may  litigate  the  question  1^ 
enjoining  the  representatiyes  of  the  state. 
It  cannot  litigate  the  question  against  in- 
diyiduals.  This  would  be  a  collateral  at- 
tack, and  as  a  direct  method  is  prorided, 
that  method  is  exdusiye. 

Re  Engelhard  &  Sons  Co.  231  U.  S.  645, 
58  L.  ed.  416,  34  Sup.  Ct.  Rep.  258;  Chi- 
cago, M.  &  St.  P.  R.  Go.  y.  Minnesota,  134 
U.  S.  418,  33  L.  ed.  970,  3  Inters.  Com.  Repi 
209,  10  Sup.  Ot.  Rep.  462,  702. 

Messrs.  F.  W.  Paschal  and  Clifford  B. 
Allen  filed  a  brief  as  amioi  ouria, 

Mr.  Clifford  B.  Allen  also  filed  a  sepa- 
rate brief  as  amicua  outue: 

This  court  has  decided  in  the  Missouri 
Rates'  Cases  that  the  statutes  of  1905  and 
1907  were  constitutionally  applied  to  the 
Burlington  Railroad  Company  during  the 
years  from  1905  to  1914,  indusiye;  hence 
this  question  has  become  res  judicata, 

St.  Louis  &  S.  F.  R.  Co.  y.  Barker,  210 
Fed.  912;  State  ex  rel.  Barker  y.  Chicago 
k  A.  R.  Co.  210  Fed.  564;  Merchants  Exch. 
y.  Baltimore  &  O.  R.  Co.  34  Inters.  Com. 
Rep.  341;  Wadley  Southern  R.  Co.  y. 
Georgia,  235  U.  S.  651,  59  L.  ed.  405,  P.  U. 
R.  1915 A,  106,  35  Sup.  Ct.  Rep.  214;  SUte 
ex  rel.  Barker  y.  Chicago  A  A.  R.  Co.  265 
Mo.  682,  L.RJL1916C,  309,  178  S.  W.  129. 

The  confiscatory  character  of  a  statutory 
rate  cannot  be  adjudicated  in  a  suit  by  a 
shipper  against  a  carrier. 

Re  Engelhard  k  Sons  Co.  231  U.  S.  646, 
58  L.  ed.  416,  34  Sup.  Ct.  Rep.  258;  St. 
Louis  k  S.  F.  R.  Co.  y.  Gill,  156  U.  S.  649, 
39  L.  ed.  567,  15  Sup.  Ct.  Rep.  484;  Chici^o 
&  G.  T.  R.  Co.  y.  Wellman,  143  U.  S.  346, 
36  L.  ed.  180,  12  Sup.  Ct.  Rep.  400;  Cen- 
tral of  Georgia  R.  Co.  y.  Railroad  Commis- 
sion, 161  Fed.  973;  Ex  parte  Young,  209  U. 
S.  123,  52  L.  ed.  714,  13  L.ILA.(N.S.)  932, 
28  Sup.  Ct.  Rep.  441,  14  Ann.  Cas.  764; 
State  ex  rel.  Missouri  Southern  R.  Co.  y. 
Public  Service  Commission,  259  Mo.  704, 
168  S.  W.  1156;  State  ex  rel.  Public  Serv- 
ice Commission  y.  Baltimore  &  0.  R.  Co. 
—  W.  Va.  — ,  P.  U.  R.  1915D,  568,  85  S. 
E.  714. 

It  is  too  late  to  again  contest  the  al- 
leged confiscatory  character  of  the  act  of 
1905. 

Central  of  Georgia  R.  Co.  y.  Railroad 
Commission,  161  Fed.  973;  Southern  R.  Co. 
y.  Railroad  Commission,  196  Fed.  560. 

The  railroads  should  not  be  permitted  to 
plead  that  the  rates  which  they  had  super- 
seded were  confiscatory,  in  an  action  by 
the  shippers  to  recover  the  money  exacted 
during  the  rate-contesting  case. 

Love  v.  North  American  Go.  —  CCA. 
— ,  229  Fed.  107. 

1149 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Tbiii, 


Mr.  W.  T.  Alden  also  filed  a  brief  as 
amicus  curice: 

It  is  the  duty  of  the  defendant  to  restore 
the  excessive  charges  collected  during  the 
pendency  of  the  injunction  in  the  Missouri 
Rate  Cases. 

Love  V.  North  American  Co.  —  C.  C.  A. 
— ,  229  Fed.  103;  Northwestern  Fuel  Co.  v. 
Brock,  139  U.  S.  216,  35  L.  ed.  151,  11  Sup. 
Ct.  Rep.  523;  Bank  of  United  States  v. 
Bank  of  Washington,  6  Pet.  8,  17,  8  L.  ed. 
299-304 ;  Bellamy  v.  St.  Louis,  I.  M.  &  S.  R. 
Co.  136  C.  C.  A.  442,  220  Fed.  876;  Brown 
V.  Detroit  Trust  Co.  113  C.  C.  A.  490,  193 
Fed.  622-626;  I^nyon  v.  Chesney,  209  Mo. 
1,  106  S.  W.  522 ;  St.  Louis  v.  St.  Louis  Gas- 
light Co.  70  Mo.  69;  Haebler  v.  Myers,  182 
N.  Y.  363,  15  L.RJI.  588,  28  Am.  St.  Rep. 
589,  30  N.  £.  963;  Zimmerman  v.  National 
Bank,  56  Iowa,  133,  8  N.  W.  807. 

The  proper  remedy  against  a  schedule  of 
rates  alleged  to  be  imremunerative  and  con- 
fiscatory is  by  a  bill  in  equity  against  the 
officers  and  authorities  of  the  state  charged 
with  the  duty  of  establishing  or  enforcing 
such  rates.  The  convenience  to  the  court 
and  the  protection  of  litigants  alike  de- 
mand that  such  questions  be  tested  out  in 
a  direct  proceeding  for  that  purpose,  and 
carriers  will  not  be  permitted  to  make 
such  a  defense  to  a  suit  for  overcharges 
filed  by  individual  shippers. 

Chicago,  M.  &  St.  P.  R.  Co.  v.  Minnesota, 
134  U.  S.  41&-460,  33  L.  ed.  970-982,  3 
Inters.  Com.  Rep.  209,  10  Sup.  Ct.  Rep.  462, 
702;  fix  parte  Young,  209  U.  S.  123,  164, 
52  L.  ed.  714-731,  13  L.R.A.(N.S.)  932,  28 
Sup.  Ct.  Rep.  441,  14  Ann.  Cas.  764;  Re 
Engelhard  &  Sons  Co.  231  U.  S.  646-649, 
58  L.  ed.  416-418,  34  Sup.  Ct.  Rep.  258 ;  St. 
Louis  A  S.  F.  R.  Co.  v.  GUI,  156  U.  S.  649- 
059,  39  L.  ed.  566-571,  15  Sup.  Ct.  Rep. 
484;  Central  of  Georgia  R.  Co.  v.  Railroad 
Commission,  161  Fed.  972;  St.  Louis  &  S. 
F.  R.  Co.  V.  Barker,  210  Fed.  916;  Allen 
V.  St.  Louis,  I.  M.  k  S.  R.  Co.  230  U.  S. 
553,  57  L.  ed.  1625,  33  Sup.  Ct.  Rep.  1030; 
Minnesota  Rate  Cases  (Simpson  v.  Shep- 
ard)  230  U.  S.  352,  57  L.  ed.  1511,  48  L.R.A. 
(N.S.)  1151,  33  Sup.  Ct.  Rep.  729,  Ann.  Cas. 
191 6A,  18;  Missouri  Rate  Cases  (Knott  v. 
Chicago,  B.  &  Q.  R.  Co.)  230  U.  S.  474,  57 
L.  ed.  1571,  33  Sup.  Ct.  Rep.  975;  Chicago 
ft  0.  R.  Go.  V.  Conley,  230  U.  S.  513,  57 
L.  ed.  1597,  33  Sup.  Ct.  Rep.  985;  Oregon 
R.  k  Nav.  Co.  V.  Campbell,  230  U.  S.  525, 
57  L.  ed.  1605,  33  Sup.  Ct  Rep.  1026. 

It  is  true  this  is  a  rule  of  procedure 
which  is  founded  on  convenience,  and  it 
may  be  deviated  from  where  it  would  work 
hardship  or  perpetuate  injustice,  but  the 
case  at  bar  does  not  fall  within  any  of  the 
exceptions  established  or  recognised  by  the 
previous  decisions  of  this  court. 
150 


St.  Louis  &  8.  F.  R.  Co.  v.  Gill,  156  U.  S. 
649-664,  39  L.  ed.  567-573,  15  Sup.  Ct.  Rep. 
484;  Ex  parte  Young,  209  U.  S.  123-164,  52 
L.  ed.  714-731,  13  L.R.A.(N.S.)  932,  28 
Sup.  Ct.  Rep.  441,  14  Ann.  Cas.  764. 

On  the  contrary,  the  case  at  bar  presents 
those  very  elements  and  considerations 
which  this  court  has  frequently  pcHnted  to 
and  relied  upon  in  holding  that  the  proper 
mode  of  relief  against  a  body  of  rates  on 
the  grotmd  that  they  are  unreasonably  low 
and  confiscatory  is  by  a  direct  proceeding 
in  equity  against  the  governmental  authori- 
ties charged  with  the  duty  of  enforcing  such 
rates. 

(a)  To  leave  such  issues  to  be  determined 
in  suits  by  private  parties,  which  would  be 
prosecuted  in  different  localities  in  great 
numbers,  and  in  different  courts  at  the  same 
time,  in  which  variant  decisions  would  fre- 
quently be  reached,  even  on  the  same  state 
of  facts,  would  result  in  business  paraljrsis 
and  legal  pandemonium. 

Central  of  (jkorgia  R.  Co.  v.  Railroad 
Commission,  161  Fed.  972. 

(b)  The  expense  of  combating  the  de- 
fense of  confiscation  would  be  so  burden- 
some, and  the  delays  attendant  upon  the 
proper  presentation  of  evidence  so  onerous, 
that  individual  shippers  would  not  have  the 
means  to  carry  on  litigation,  and  a  prac- 
tical denial  of  justice  would  result  in  many, 
if  not  most,  cases.   •« 

Ex  parte  Young,  209  U.  S.  123-164,  52 
L.  ed.  714-731,  13  LJt.A.(N.S.)  932,  28  Sup. 
Ct.  Rep.  441,  14  Ann.  Oas.  764;  Chicago, 
M.  &  St.  P.  R.  Co.  V.  Minnesota,  134  U.  S. 
418-460,  33  L.  ed.  970-982,  3  Inters.  Com. 
Rep.  209,  10  Sup.  Ct.  Rep.  462,  702. 

(c)  This  defendant  elected  in  the  begin- 
ning to  contest  the  validity  of  the  Missouri^ 
rate  acts  by  a  direct  proceeding,  and  after 
having  carried  on  litigation  of  that  char- 
acter for  eight  years,  it  ought  not  to  be  per- 
mitted now  to  adopt  another  mode  of  relief. 

(d)  When,  in  obedience  to  the  mandate 
of  this  court,  the  bill  of  this  defendant — a 
complainant  in  the  Missouri  Rate  Cases — 
was  dismissed  without  prejudice,  it  was  in- 
cumbent upon  the  defendant  to  proceed 
without  delay  to  file  a  new  bill  attacking 
the  constitutionality  of  the  Missouri  rate 
laws.  Its  failure  so  to  do  constituted 
laches,  which  should  bar  it  from  now  urging 
that  defense. 

(e)  It  is  an  established  rule  that  a  car- 
rier must  charge  the  published  tariff  rates 
in  the  transportation  of  freight  and  passen- 
gers, and  cannot  depart  therefrom  to  any 
extent  or  in  any  respect. 

Louisville  &  N.  R.  Co.  v.  Mottley,  219  U. 
S.  467,  477,  55  L.  ed.  297,  301,  S4  L.R.A. 
(N.S.>  671,  81  Sup.  Ct  Rep.  265;  American 

141  V.  S. 


1915. 


MISSOURI  V.  CHICAGO,  B.  &  Q.  R.  CO. 


Sugar  Ref .  Co.  v.  Pelaware,  L.  ft  W.  R.  Co. 
126  C.  C.  A.  251,  207  Fed.  742. 

When  the  bUls  enjoining  the  enforcement 
of  the  Missouri  maximum  freight  and  pas- 
senger laws  of  1905  and  1907  were  dismissed 
without  prejudice,  those  laws  became 
yalid  and  effective  from  the  date  of  their 
enactment;  hence,  it  was  and  is  unlawful 
for  the  defendant  to  charge,  collect,  demand, 
or  retain  any  greater  or  less  compensation 
for  the  transportation  of  property  or  pas- 
sengers than  is  specified  in  such  acts. 

Pierce  v.  Pierce,  46  Ind.  86;  McCollum  v. 
McOonaughy,  141  low*,  172,  119  N.  W.  539. 

Messrs.  Ernest  £.  Watson  and  Herbert  A. 
Abemethy  also  filed  a  brief  as  amid  ourice: 

The  question  of  confiscation  as  to  the 
past  is  re9  judioaia, 

Chicago,  M.  &  St.  P.  R.  Co.  v.  Minnesota, 
134  U.  6.  418,  458,  33  L.  ed.  970,  982,  3 
Inters.  Com.  Rep.  209,  10  Sup.  Ct.  Rep. 
462,  702;  Ex  parte  Young,  209  U.  S.  123, 
162-167,  52  L.  ed.  714,  730-732,  13  L.R.A. 
(N.S.)  932,  28  Sup.  Ct.  Rep.  441,  14  Ann. 
Cas.  764;  St.  Louis  &  8.  F.  R.  Co.  v.  Gill, 
156  U.  S.  649,  659,  666,  39  L.  ed.  567,  570, 
573,  15  Sup.  Ct.  Rep.  484;  Southern  P.  Co. 
▼.  Railroad  Comrs.  78  Fed.  249;  Haverhill 
Gaslight  Go.  v.  Barker,  109  Fed.  696;  St. 
Louis  &  S.  F.  R.  Co.  v.  Hadley,  161  Fed. 
419;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Bellamy, 
211  Fed.  178. 

Messrs.  O.  M.  Spencer  and  Frank  Hag- 
erman  argued  the  cause,  and,  with  Mr. 
Chester  M.  Dawes,  filed  a  brief  for  defend- 
ant: 

A  dismissal  without  prejudice  means 
that  the  issues  can  be  again  litigated  "as 
if  no  previous  suit  had  been  commenced.'* 
•Northern  P.  R.  Co.  v.  St.  Paul,  M.  &  M.  R. 
Co.  47  Fed.  536;  Mobile  County  *  v.  Kim- 
ball, 102  U.  S.  691.  26  L.  Ad.  238;  A.  H. 
Averill  Mach.  Co.  v.  AUbrittou,  51  Wash. 
30,  97  Pac.  1082;  Whitehouse,  Eq.  Pr.  §  395. 

If,  as  the  answer  alleges,  the  2-cent  stat- 
utory fare  requirement  was  confiscatory, 
then  complainant  cannot  recover,  and  any 
defense  which  so  shows  is,  of  course,  proper. 

(a)  The  matter  stricken  at  is  the  plea 
that  the  2-cent  statutory  rate  was  confisca- 
tory for  the  two  separate  and  distinct  rea- 
sons that  it,  first,  prevented  defendant  from 
earning  a  fair  return  upon  the  value  of  the 
entire  property  devoted  to  the  use,  and 
second,  actually  required  the  defendant  to 
carry  passengers  at  a  less  rate  than  the 
transportation  actually  cost.  The  two 
ideas  are  distinct  and  separate.  If  the 
statute  did  not  permit  the  defendant  to 
earn .  a  fair  return  upon  the  value  of  its 
property  in  the  state,""  devoted  to  its  use, 
then  it  was  confiscatory  and  not  binding 
upon  defendant. 
•0  Ii.  ed. 


Smyth  V.  Ames,  169  U.  S.  466,  42  L.  ed. 
819,  18  Sup.  Ct.  Rep.  418;  Norfolk  k  W.  R. 
Co.  V.  Conley,  236  U.  S.  605,  59  L.  ed.  745, 
P.  U.  R.  1915C,  293,  35  Sup.  Ct.  Rep.  437. 

Moreover,  if  that  return  was  so  meager 
that  it  was  insufiicient  to  pay  for  the  cost 
of  that  particular  service,  the  statute  was, 
for  that  reason,  void. 

Southern  R.  Co.  v.  St.  Louis  Hay  k  Grain 
Co.  214  U.  S.  297,  302,  53  L.  ed.  1004,  1006, 
29  Sup.  Ct.  Rep.  678;  Northern  P.  R.  Co. 
V.  North  Dakota,  236  U.  S.  585,  59  L.  ed. 
735,  L.R.A.  — ,  -,  P.  U.  R.  1915C,  277, 
35  Sup.  Ct.  Rep.  429,  Ann.  Cas.  1916A,  1. 

(b)  Had  the  bill  been  filed  in  the  dis- 
trict court  in  the  proceedings  out  of  which 
the  claim  arises,  instead  of  here  (Krippen- 
dorf  V.  Hyde,  110  U.  S.  276,  280-282,  28 
L.  ed.  145,  147,  148,  4  Sup.  Ct.  Rep.  27; 
Root  V.  Woolworth,  150  U.  S.  401,  411,  413, 
37  L.  ed.  1123,  1125,  1126,  14  Sup.  Ct.  Rep. 
136),  it  would  have  borne  every  earmark 
of  the  familiar  ancillary  and  dependent  bill 
in  equity.  If  the  bill  is  correctly  framed 
in  equity  and  a  consideration  of  the  ques- 
ti(m  of  confiscation  is  limited  to  that  forum, 
then  the  defense  is  proper  because  equity 
rule  30  expressly  permits  a  defendant  to 
"state  as  many  defenses,  in  the  alternative, 
regardless  of  consistency,  as  the  defendant 
deems  essential  to  his  defense." 

(c)  If,  however,  r^ardless  of  the  aim  of 
the  pleader,  the  alleged  bill  be  construed  as 
a  simple  petition  at  law,  the  same  result 
follows. 

(d)  A  railroad  company  can,  by  its  own 
original  bill  in  equity,  have  injunctive  re- 
lief against  the  enforcement  of  statutory 
state  rates  because  confiscatory  (Smyth  v. 
Ames,  169  U.  S.  466,  42  L.  ed.  819,  18  Sup. 
Ct.  Rep.  418;  Ex  parte  Young,  209  U.  S. 
123,  52  L.  ed.  714,  13  L.R.A.(X.S.)  932,  28 
Sup.  Ct.  Rep.  441,  14  Ann.  Cas.  764), 
though  the  state  could  not  be  made  a  party 
to  such  an  action. 

But  even  if  the  state  could  have  been  so 
sued,  that  remedy  would  not  be  now  avail- 
able, because  past,  not  future,  acts,  are 
here  involved,  and  injunctive  relief  is,  or- 
dinarily, to  prevent  future,  not  past,  wrong- 
doing. But  even  if  the  proceedings  in 
equity  might  have  been  better  suited  for 
the  purpose,  that  fact  would  not  prevent  a 
defendant  from  asserting  the  defense  at  law 
or  to  a  suit  of  the  state  by  mandamus  or 
injunction  compelling  obedience  to  the  stat- 
ute, or  any  kind  of  a  case  in  which  the 
carrier  might  be  called  to  account  because 
of  a  rate  charged  in  excess  of  that  fixed  by 
statute.  The  question  of  convenience  is  for 
the  party  calling  for  the  constitutional  pro- 
tection. 

St.  Louis  &  S.  F.  R.  Co.  v.  Gill,  156  U. 
S.  649,  666,   39  L.  ed.  567,  573,  15  Sup. 

ll&l 


BUPRraiE  COURT  OF  THE  UNITED  STATBa 


Oct.  Tknc, 


Ct  Bep.  484;  Ex  parte  Young,  209  U.  & 
123,  165,  166,  62  L.  ed.  714,  731,  732,  13 
L.ILA.(NJS.)  932,  28  Sup.  Ot.  Rep.  441,  14 
Ann.  Cae.  764;  Wadley  Southern  R.  Co.  v. 
State,  137  Ga.  497,  73  S.  E.  741,  235  U.  8. 
651,  59  L.  ed.  405,  P.  U.  R.  1015A,  106,  35 
Sup.  Ct.  Rep.  214;  Chicago  &  G.  T.  R.  Co. 
y.  Wellman,  143  U.  S.  339,  36  L.  ed.  176, 
12  Sup.  Ct.  Rep.  400,  affirming  83  Mich. 
592,  47  N.  W.  489;  Lake  Shore  &  M.  S.  R. 
Co.  V.  Smith,  173  U.  S.  684,  43  L.  ed.  858, 
19  Sup.  Ct.  Rep.  565,  rereraing  114  Mich. 
460,  72  N.  W.  328;  Chicago,  M.  k  St.  P.  R. 
Co.  v.  Minnesota,  134  U.  S.  418,  458,  33  L. 
ed.  970,  981,  3  Inters.  C<mi.  Rep.  209,  10 
Sup.  Ct.  Rep.  462,  702;  Northern  P.  R.  06. 
V.  North  DakoU,  236  U«  S.  585,  59  L.  ed. 

735,  L.RJi ,  — ,  P.  U.  R.  1915C,  277,  35 

Sup.  Ct.  Rep.  429,  Ann.  Cas.  1916A,  1,  26 
N.  D.  438,  145  N.  W.  135;  Northern  P.  R. 
Co.  Y.  North  Dakota,  216  U.  S.  579,  54  L. 
ed.  624,  30  Sup.  Ct.  Rep.  423;  State  v. 
Pacific  Exp.  Co.  80  Neb.  823,  18  L.R.A. 
(N.S.)  664,  115  N.  W.  619;  State  v.  Adams 
Exp.  Co.  80  Neb.  840,  115  N.  W.  625;  SUte 
y.  Adams  Exp.  Co.  85  N^.  25,  42  L.ILA. 
(N.S.)  396,  122  N.  W.  691;  State  v.  WeUs- 
Fargo  &  Co.  85  Neb.  42,  122  N.  W.  697; 
Atty.  Gen.  t.  Chicago  &  N.  W.  R.  Co.  35 
WU.  425. 

Wherever,  as  here,  the  state,  which  is  not 
subject  to  suit  by  the  carrier,  in  its  sover- 
eign capacity,  itself  seeks  to  enforce  a  stat- 
ute by  a  recovery  of  refunds  thereunder, 
there  surely  can  be  no  objection  to  permit- 
ting a  defense  to  be  made  upon  the  ground 
of  reasonableness  of  the  rate.  In  such  a 
proceeding  the  state  is  a  party  just  as  it 
is  in  a  mandamus  or  an  injunctive  proceed- 
ing, and  a  judgment  in  such  an  action 
would  be  as  binding  and  as  conclusive  as 
though  the  proceeding  had  been  instituted 
against  some  officer  of  the  state,  as  defend- 
ant, by  the  railway  company  as  plaintiff. 

Missouri  P.  R.  Oo.  v.  Tucker,  230  U.  S. 
340,  346,  57  L.  ed.  1507,  1509,  33  Sup.  Ct. 
Rep.  961. 

Complainant  cannot  recover  because  of 
any  common-law  right  based  upon  an  ex- 
orbitant charge  ooercively  exacted,  but,  if 
it  could,  defendant  would  be  entitled  to  a 
hearing  upon  its  defense  of  confiscation. 

Texas  &  P.  R.  Co.  v.  Abilene  Cotton  Oil 
Co.  204  U.  S.  426,  436,  51  L.  ed.  553,  557, 
27   Sup.  Ct.  Rep.   350,  9  Ann.  Cas.  1075; 
Young  v.  Kansas  City,  St.  J.  &  C.  B.  R.  Co. 
33  Mo.  App.  514;   State  ex  rel.  Crow  v. 
Atchison,  T.  &  8.  F.  R.  Co.  176  Mo.  716,  63 
L.R.A.  761,  75  8.  W.  776;   McOormick  v. 
Kaye,   41   Mo.   App.   268;    Boone   County^ 
Home  Mut.  Ins.  Co.  v.  Anthony,  68  Mo.  App.  i 
428;  State  v.  Dalton,  134  Mo.  App.  526,  114  | 
S.  W.  1132;  Davidson  v.  Schmidt,  146  Mo. 
App.  868,  124  S.  W.  552;  Chicago,  M.  k'  St ' 
1151 


P.  R.  Co.  V.  Minnesota,  184  U.  &  418,  33  L. 
ed.  970,  3  Inters.  Com.  Rep.  209, 10  Sup.  Ct. 
Rep.  462,  702;  St.  Louis  &  &  F.  R.  Co.  ▼. 
Gill,  156  U.  S.  649,  39  L.  ed.  567,  15  Sup. 
Ct.  Rep.  484;  Smyth  t.  Ames,  169  U.  S. 
466,  42  L.  ed.  819,  18  Sup.  Ct  Rep.  418;  Ex 
parte  Toung,  209  U.  S.  123,  52  L.  ed.  714, 

13  LJLA.(NJ3.)  932,  28  Sup.  Ct  Rep.  441, 

14  Ann.  Cas.  764;  Willoox  v.  Ccmsolidated 
Gas  Oo.  212  U.  S.  19,  53  L.  ed.  382,  48 
L.RJL(N.S.)    1134,  29  Sup.  Ct  Rep.  192, 

15  Ann.  Cas.  1034;  Coal  k  Coke  R.  Co.  r. 
Conley,  67  W.  Va.  177,  67  S.  E.  613;  Chesa- 
peake &  O.  R.  Co.  V.  -Conley,  230  U.  S. 
513,  522,  57  L.  ed.  1597,  1603,  33  Sap.  Ct 
Rep.  985;  Winsor  Coal  Co.  v.  Chicago  k  A. 
R.  Co.  52  Fed.  716. 

Complainant  cannot  recover  oo  the 
ground  that  it  is  entitled  to  the  excess  fares 
paid  by  its  officers,  and  is  entitled  to  resti- 
tution, but,  if  it  could,  o<mfiscatioo  would 
be  a  defense  upon  whicJi  the  carrier  would 
be  entitled  to  be  heard. 

Since,  legally,  neither  damage  nor  wrong 
was  done  by  the  injunction,  the  doctrine  of 
restitution  is  not  involved. 

RusseU  V.  Farley,  105  U.  S.  433,  435-446, 
26  L.  ed.  1060, 1061-1064;  Oelrichs  ▼.  Spain 
(Oelrichs  v.  Williams)  15  WaU.  211,  229,  21 
L.  ed.  43,  45;  Meyers  v.  Block,  120  U.  a 
206,  209,  30  L.  ed.  642,  643,  7  Sup.  Ct  R^. 
525;  Cimiotti  Unhairing  Co.  v.  American 
Fur  Ref.  Co.  158  Fed.  172;  St  Louis  v.  St 
Louis  Gaslight  Co.  82  Mo.  353;  Scheck  v. 
Kelly,  95  Fed.  941. 

The  right  to  claim  restitution  belongs  not 
to  the  state  as  a  passenger,  but  exclusively 
to  the  party  to  the  record. 

McLagan  v.  Brown,  11  III.  519;  Major  ▼. 
Collins,  17  111.  App.  239;  Edwards  v.  Phil- 
lips, 91  N.  C.  355;  18  Enc.  PI.  k  Pr.  879, 
880. 

The  state  never  was  and  could  not  have 
been  a  party  defendant  to  the  original 
cause  (Ex  parte  Young,  209  U.  S.  123,  52 
L.  ed.  714,  13  L.ILA..(N.S.)  932,  28  Sup. 
Ct.  Rep.  441,  14  Ann.  Oas.  764),  and  its 
right  to  make  claim  on  bdialf  of  its  several 
officers  is  not  made  apparent  This  sug> 
gestion  completely  answers  any  claim  for 
restoration,  because,  if  it  exists,  it  arose  in 
favor  of  and  is  held  by  the  state  in  its  pro- 
prietary capacity.  On  such  account  alone 
it  can  sue  here  in  this,  an  original,  pro- 
ceeding. 

While  it  is  the  general  rule  that  property 
received  imder  a  judgment  subsequently  re- 
versed must  be  restored,  yet  the  right  of 
restitution  is  not  absolute,  and  the  party 
in  possession  of  the  property  may  deny  such 
right  by  showing  that  he  is  equitably,  and 
justly  entitled  thereto. 

3  Cyc.  463;  18  Enc  PI.  k  Pr.  pp.  875,  876, 
877;  Teasdale  v.  Stoller,  133  Mo.  652,  54 

141  V.  8. 


1916. 


MISSOURI  T.  CHICAGO,  B.  &  Q.  B.  00. 


536,  637 


Am,  St.  Rep.  708,  34  8.  W.  873;  Gould  v.  j  sues  to  reoover  a  sum  of  mon^  for  passenger 
McFall,  118  Pa.  466,  4  Am.  St  Rep.  606,  12  |  fares  in  ezceas  of  the  rate  established  by 

Ail.  336;  Andrews  v.  Thum,  18  C.  C.  A. '  ' '"  '—  '*-  -'^ '~  ^ '* '^'^ 

308,  33  U.  S.  App.  393,  71  Fed.  763;  Carl- 
•cm  y.  Winter  son,  7  Misc.  16,  27  N.  Y.  Supp. 
368;  State  ez  rel.  Hayd^  v.  Horton,  70 
Neb.  334,  97  N.  W.  437,  99  N.  W.  601; 
Dupuy  Y.  Roebuck,  7  Ala.  484;  Crodcer  v. 
Clements,  23  Ala.  296;  Freeman,  Judgm.  3d 
«d.  p  509,  §  481. 

Mr.  O.  M.  Spencer  also  filed  a  separate 
brief  for  defendant: 

The  defendant  herein  stands  in  relation 
to  this  suit  and  any  defense  it  has,  just 
as  if  no  former  litigation  over  the  rates 
in  Missouri  had  ever  occurred. 

Northern  P.  R.  Co.  v.  St.  Paul,  M.  &  M.  R. 
Co.  47  Fed.  536;  MobUe  County  v.  Kim- 
ball, 102  U.  S.  691,  26  L.  ed.  238;  White- 
house,  £q.  Pr.  f  395,  p.  638;  2  Street,  Fed. 
Eq.  Pr.  p.  817,  §  1348;  A.  H.  Averill  Mach. 
Co.  .V.  Allbritton,  51  Wash.  30,  97  Pac. 
1082;  Durant  v.  Essex  Co.  7  Wall.  109, 
19  L.  ed.  156;  Shepherd  v.  Pepper,  133 
U.  S.  026,  33  L.  ed.  706,  10  Sup.  Ct.  Rep. 
438;  Thurston  v.  Thurston,  99  Mass.  39; 
Hazen  v.  LyndonviUe  Nat.  Bank,  70  Vt. 
4S43,  67  Am.  St.  Rep.  680,  41  AtL  1046; 
Reynolds  v.  Hennessy,  17  R.  I.  169,  20  Atl. 
307,  23  Atl.  639 ;  English  v.  English,  27  N. 
J.  Eq.  679;  Ballentine  v.  Ballentine,  2 
Monaghan  (Pa.)  333,  15  AtL  859;  O'Keefe 
T.  Irvington  Real  Estate  Co.  87  Md.  196, 
39  Atl.  428;  Lang  v.  Waring,  25  Ala.  625, 
60  Am.  Dec.  533;  Nevitt  v.  Bacon,  32  Miss. 
212,  66  Am.  Dec  609;  Tucker  v.  Wilson, 
68  Miss.  693,  9  So.  898;  Epstein  v.  Ferst, 
S5  Fla.  498,  17  So.  414. 

The  mere  fact  that  the  railroad  company 
is  now  a  defendant,  and  not  a  complainant, 
cannot  bar  its  right  to  make  the  same  de- 
fense again;  for  while  the  usual  method  of 
testing  the  reasonableness  of  rates  is  by 
•uit  in  equity,  yet  the  same  defense  can 
be  made  in  any  action  at  law. 

Ex  parte  Young,  209  U.  S.  123,  166,  52 
L.  ed.  714,  731,  13  L.RJk.(N.S.)  932,  28 
Sup.  Ct.  Rep.  441,  14  Ann.  Cas.  764;  St. 
Louis  A  S.  F.  R.  Co.  ▼.  Gill,  156  U.  S.  649, 
39  L.  ed.  567,  15  Sup.  Ct.  Rep.  484;  North- 
ern P.  R.  Co.  V.  North  Dakota,  236  U.  S. 
585,  59  L.  ed.  735,  L.R.A.— ,  — ,  P.U.R. 
1915C,  277,  35  Sup.  Ct.  Rep.  429,  Ann.  CtiB. 
1916A!,  1;  Chicago,  M.  A  St.  P.  R.  Co.  v. 
Minnesota,  134  U.  S.  418,  33  L.  ed.  970,  3 
Inters.  Com.  Rep.  209,  10  Sup.  Ct.  Rep.  462, 
702;  1  Michie,  Carr.  p.  119,  §  139. 


Mr.  Chief  Justice  White  delivered  the 
epinion  of  the  court: 

A  preliminary  outline  is  essential  to  dear 
the  way  for  an  understanding  of  the  case. 
By  original  action  here  brought,  the  atate 
•0  li.  ed. 


law,  paid  by  its  officers  when  traveling  with- 
in the  state,  on  state  buainess.  Answering, 
the  railroad  alleges  among  other  defenses 
that  the  rates  fixed  by  law  were  so  low  as  to 
be  confiscatory,  and  hence  repugnant  to  the 
Constitution  of  the  United  States.  The  mat- 
ter for  decision  arises  on  a  motion  on  be- 
half of  the  state  to  strike  out  this  defense 
on  the  ground  that  the  right  to  assert  it  is 
barred  by  a  decree  of  this  court,  establishing 
that  the  rates  fixed  by  the  state  law  were 
lawful,  and  not  jeonfiscatory, — a  decree  the 
conclusive  effect  of  which,  it  is  asserted,  the 
railroad  company  is  estopped  from  denying. 

The  case  as  made  by  the  pleadings  and  by 
the  record  in  which  the  decree  relied  on  was 
rendered,  of  which  we  take  judicial  notice,  is 
this:  In  April,  1906,  by  law,  Missouri  es- 
tablished certain  freight  rates.  Almost  at 
once  the  defendant  company  and  others  filed 
their  bUb  in  [537]  the  circuit  court  of  the 
United  States  for  the  western  district  of 
Missouri  against  the  State  Board  of  Ware- 
house Commissioners,  the  attorney  general 
of  the  state,  and  certain  shippers,  alleged  to 
be  representative,  to  enjoin  the  carrying  out 
of  the  rate-fixing  law  on  the  ground  that  to 
enforce  the  rates  which  it  fixed  would  re- 
sult in  confiscation  and  a  taking  of  the 
property  of  the  railroads  in  violation  of  the 
Constitution.  An  injunction  was  granted 
prohibiting  the  carrying  into  effect  of  the 
rate  law.  While  these  suits  were  pending, 
the  state  by  law  fixed  a  passenger  rate,  and, 
repealing  the  freight  law  which  had  been 
enjoined,  enacted  another,  and  by  supple- 
mental bills  both  these  laws  were  assailed 
on  the  grounds  upon  which  the  other  law 
had  been  attacked,  and  injunctions  were 
awarded  restraining  their  enforcement. 
After  much  testimony  offered  on  the  issue 
of  confiscation,  the  court  permanently  en- 
joined the  enforcement  of  the  state 
statutes.  On  review  in  this  coturt,  as 
to  the  railroad  now  before  us  and 
others,  this  conclusion  was  held  to  be 
erroneous,  and  the  decree  which  was  en- 
tered here  reversed  and  remanded  the  ease, 
with  directions  to  dismiss  the  bill,  without 
prejudice.  Missouri  Rate  Cases  (Knott  v. 
Chicago,  B.  &  Q.  R.  Co.)  230  U.  S.  474,  509, 
67  L.  ed.  1571,  1696,  33  Sup.  Ct  Rep.  976. 

Although  the  contentions  respectively 
pressed  in  argument  are  numerous,  their 
solution  depehds  upon  the  application  of  a 
few  well-settled  principles  which  we  proceed 
to  state  in  order  to  test  all  the  propositions 
by  applying  them,  and  thus  avoid  redun- 
dancy. ^ 

1.  In  Chicago,  M.  k  St.  P.  R.  Co.  v.  Min- 
nesota, 134  U.  8.  418,  33  L.  ed.  970,  3  In- 
ters. Com.  Rep.  209,  10  Sup.  Ct.  Rep.  462, 
73  1' 


537^540 


8UPRBMB  COUBT  OF  THE  UNITED  STATES. 


Oct.  Tbbic, 


702,  considering  a  law  fixing  imilroad  rates 
in  the  light  of  two  letUed  rules,  (a)  that, 
in  exerting  the  public  rate-making  power,  the 
rates  cannot  be  made  so  low  as  to  be  con- 
fiscatory, without  Tiolating  the  Constitu- 
tion, and  (b).  that  although  a  state  is  not 
subject  to  suit  without  its  consent,  there  is 
always  the  right  to  enjoin  an  individual, 
whether  he  is  a  state  officer  or  not,  from  do- 
ing an  act  violating  the  Constitution,  that  is, 
from  taking  property  [538]  unlawfully,  it 
was  held  that  both  these  propositions  con- 
trolled in  the  fullest  degree  in  the 
legislatiye  fixing  of  railroad  rates.  In 
fact  it.  was  in  that  case  decided  that 
from  the  act  of  fixing  railroad  rates 
by  law  there  resulted  the  duty  to 
provide  an  opportunity  for  testing  their  re- 
pugnancy as  a  unit  to  the  Constitution  in 
case  there  was  a  charge  that  they  were  con- 
fiscatory. It  was  accordingly  held  that,  in 
virtue  of  the  due  process  of  law  provision 
of  the  14th  Amendment,  the  state  could  not 
by  mandamus  compel  a  railroad  to  comply 
with  rates  fixed  by  a  state  law  unless  an  op- 
portunity was  afforded  to  test  the  question 
of  confiscation. 

Developing  and  applying  this  doctrine  in 
many  cases,  it  came  to  pass  that  on  the 
complaint  of  a  railroad  as  to  the  confisca- 
tory character  of  rates  fixed  by  state  law, 
the  right  was  recognized  to  test  the  rates 
as  a  unit,  and  therefore  to  obtain  an 
injunction  restraining  the  enforcement  of 
the  slate  law  in  its  entirety;  and  that 
for  such  purpose  any  officers  of  the 
state  having  any  power  to  directly  enforce 
the  law,  or,  by  indirection,  to  give  effect  to 
the  same  in  any  manner  whatever,  were 
qualified  as  defendants  to  stand  in  judg- 
ment for  the  relief  asked.  Reagan  v.  Farm- 
ers' Loan  'k  T.  Co.  164  U.  S.  362,  38  L.  ed. 
1014,  4  Inters.  Com.  Rep.  660,  14  Sup.  Ct. 
Rep.  1047;  Smyth  t.  Ames,  169  U.  S.  466, 
42  L.  ed.  819,  18  Sup.  Ct.  Rep.  418;  Ex 
parte  Toung,  209  U.  S.  123,  62  L.  ed.  714, 
18  L.RJk.(N.8.)  932,  28  Sup.  Ct  Rep.  441, 
14  Ann.  Cas.  764;  Willcox  v.  Consolidated 
Gas  Co.  212  U.  S.  19,  63  L.  ed.  382,  18  L.Rj^. 
(N.S.)  1134,  29  Sup.  Ct.  Rq>.  192,  16  Ann. 
Cas.  1034;  Minnesota  Rate  Cases  (Simpson 
V.  Shepard)  230  U.  S.'362,  67  L.  ed.  1611, 
48  L.RJ^.(N.S.)  1161,  33  Sup.  Ct.  Rep.  729, 
Ann.  Cas.  1916A,  18;  Missouri  Rate  Cases 
(Knott  V.  Chicago,  B.  &  Q.  R.  Co.)  230  U.  S. 
474,  67  L.  ed.  1671,  33  Sup.  Ct.  Rep.  976; 
Norfolk  ft  W.  R.  Co.  v.  Conley,  236  U.  S. 
606,  69  L.  ed.  746,  P.UJR.1916C,  293,  36  Sup. 
Ct.  Rep.  437. 

2.  While  it  is  true  that  the  comprehen- 
sive right  thus  recognized  was  broader  and 
more  efficacious  than  would  be  the  right  of  a 
railroad  merely  to  resist  in  each  parti<;ular 
case  an  individual  effort  to  enforce  a  single 
^164 


rate  fixed  by  law  (see  Ex  parte  Toung,  209 
U.  S.  128,  62  L.  ed.  714,  13  L.RJl.(N.S.) 
932,  28  Sup.  Ct.  Rep.  441, 14  Ann.  Cas.  764), 
it  is  true  also  that  the  recognized  broader 
right  was  not,  unless  it  was  availed  of,  ex- 
clusive of  the  latter  and  narrower  one,  that 
is,  the  right  to  resist  separate  attempts  to 
enforce  a  rate.  St  Louis  &  S.  F.  R.  Co.  ▼. 
GUI,  166  U.  S.  649,  39  L.  ed.  667,  16  Sup. 
Ct.  Rep.  484.  This  [639]  principle  was 
but  a  recognition  of  the  fact  that  the 
broader  right  to  invoke  a  complete 
remedy  to  enjoin  the  law,  and  thus 
prevent  the  enforcement  of  the  rates, 
did  not  take  away  the  narrower  right 
of  a  railroad  to  stand  upon  the  defensive, 
and  merely  resist  the  attempt  to  enforce 
the  rate  in  each  particular  case,  be- 
cause of  their  confiscatory  character. 
One  right  was  not  destructive  of  the  other, 
because  there  was  freedom  to  elect  which 
of  the  two  would  be  pursued. 

3.  Resulting  from  the  principles  just 
stated,  recognizing  that  the  operation  of  a 
decree  enjoining  the  giving  effect  to  a  rate 
law,  because  of  its  alleged  confiscatory 
character,  differed  materially,  both  as  to  the 
public  interest  and  that  of  the  railroad, 
from  the  consequences  which  would  arise 
from  a  mere  decree  rejecting  the  complaint 
of  a  person  as  to  an  individual  and  consum- 
mated grievance,  based  on  the  claim  that  an 
illegal  rate  had  been  charged,  it  came  to 
pass  that  a  form  of  decree  came  to  be  ap- 
plied in  rate  cases  to  meet  and  provide  for 
this  difference.  In  other  words,  in  a  rate 
case  where  an  assertion  of  confiscation  was 
not  upheld,  because  of  the  weakness  of  the 
facts  supporting  it,  the  practice  came  to  be 
that  the  decree  rejecting  the  claim  and 
giving  effect  to  the  statute  was,  where  it 
was  deemed  the  situation  justified  it, 
qualified  as  "without  prejudice/'  not  to 
leave  open  the  controversy  as  to  the 
period  with  which  the  decree  dealt,  and 
which  it  concluded,  but  in  order  not  to 
prejudice  rights  of  property  in  the  future^ 
if,  from  future  operation  and  changed  con- 
ditions arising  in  such  future,  it  resulted 
that  there  was  confiscation.  And  the  same 
limitation  arising  from  a  solicitude  not  to 
unduly  restrain  in  the  future  the  operation 
of  the  law  came  to  be  applied  where  the  as- 
serted  confiscation  was  held  to  be  estab- 
lished. In  other  words,  the  decree  enjoin- 
ing the  enforcement  of  the  statute  in  that 
ease  was  also  qualified  as  without  preju- 
dice to  the  enforcement  of  the  statute  in 
the  future  if  a  change  in  [540]  conditions 
arose.  The  doctrine  in  the  first  aspect 
nowhere  finds  a  more  lucid  statement  than 
the  one  made  on  behalf  of  the  court  by  Mr. 
Justice  Moody  in  Knoxville  v.  KnoxviUe 
Water  Co.  212  U.  S.  1,  63  L.  ed.  371,  29  Sup. 

14l'u.  8. 


1015. 


MISSOURI  ▼.  CHICAGO,  B.  &  Q.  R.  CO. 


640-542 


Ct.  Rep.  148.  It  has  since  been  repeatedly 
applied  in  language  which,  in  the  completest 
way,  makes  the  meaning  of  the  limitation 
''without  prejudice^  in  such  a  case  clear, 
and  leaves  no  ground  for  any  dispute  what- 
ever on  the  subject.  Willcox  v.  Consoli- 
dated «Gas  Co.  212  U.  S.  19,  53  L.  ed.  382, 
48  L.KJ^  (N.S.)  1134,  20  Sup.  Ct.  Rep. 
102,  15  Ann.  Cas.  1034;  Northern  P.  R.  Co. 
V.  North  DakoU,  216  U.  S.  570,  54  L.  ed. 
624,  30  Sup.  Ct.  Rep.  423;  Louisville  v. 
Cumberland  Teleph.  k  Teleg.  Co.  225  U.  S. 
430,  56  L.  ed.  1151,  32  Sup.  Ct.  Rep.  741; 
Missouri  Rate  Cases  (Knott  v.  Chicago,  B. 
k  Q.  R.  Co.)  230  U.  S.  474,  57  L.  ed.  1571, 
33  Sup.  Ct.  Rep.  075;  Des  Moines  Gas  Co. 
V.  Des  Moines,  238  U.  S.  153,  50  L.  ed. 
1244,  P.U.R.1015D,  577,  35  Sup.  Ct.  Rep. 
811.  A  complete  illustration  of  the  opera- 
tion of  the  qualification  is  afforded  by  the 
North  Dakota  Case,  just  cited,  since  in 
that  case,  as  a  result  of  the  qualification 
"without  prejudice,"  the  case  was  subse- 
quently reopened,  and  upon  a  consideration 
of  new  conditions  arising  in  such  future 
period,  a  different  result  followed  from  that 
which  had  been  previously  reached.  236 
U.  S.  585,  50  L.  ed.  735,  L.R.A.— ,  — , 
P.U.R.1015C,  277,  35  Sup.  Ct.  Rep.  420, 
Ann.  Cas.  1016A,  1.  As  to  the  second  as- 
pect, that  is,  the  significance  of  the  limita- 
tion "without  prejudice"  as  applied  to  a 
decree  which  enjoined  the  rates  as  confisca- 
tory, the  meaning  of  the  reservation  as  we 
have  stated  it  was  in  express  terms,  through 
an  abundance  of  precaution,  defined  and 
stated  in  the  opinion  in  the  Missouri  Rate 
Cases  (Knott  v.  Chicago,  B.  k  Q.  R.  Co.) 
230  U.  S.  474,  508,  57  L.  ed.  1571,  1504,  33 
Sup.  Ct.  Rep.  075. 

Let  us  test  the  merit  of  the  respective 
contentions  by  these  propositions. 

(a)  It  is  insisted  that  the  right  obtains 
to  assert,  as  against  the  individual  suit  of 
the  state,  the  existence  of  the  confiscation 
for  the  very  period  covered  by  the  previous 
finding  that  there  was  a  failure  to  establish 
the  confiscation,  because  the  reservation 
"without  prejudice,"  which  was  made  in 
that  decree,  leaves  the  whole  subject  open 
for  a  renewed  attack  as  to  individuals,  and, 
indeed,  by  general  complaint  as  to  the  un- 
eonstitutionality  of  the  law  as  a  whole. 
But  this  proposition  simply  disregards  the 
foundation  [541]  upon  which  such  a  reser- 
vation came  to  be  applied,  as  we  have  just 
pointed  out,  in  cases  involving  an  assault 
open  the  present  and  future  operation  of 
a  law  fixing  rates.  In  other  words,  the 
eontention  but  accepts  the  doctrine  pre- 
viously announced,  and  yet  repudiates  the 
eases  by  which  that  doctrine  was  estab- 
lished, by  affixing  a  meaning  to  the  reserva- 
tion '^without  prejudice,"  as  used  in  the 
•0  li.  ed. 


cases,   wholly   destructive   of   the   sole  ob- 
ject and  purpose  for  which,  in  those  cpses» 
the  reservation  came  to  be  applied.    Again, 
it   is   said,  conceding  that   the  limitation 
"withont   prejudice,"    when   applied    to   a 
rate  case,  imder  the  authorities,  has  the 
significance  which  we  have  affixed  to  it,  that 
meaning  should  only  prevent  the  reopening 
of  the  inquiry  as  to  the  period  embraced 
by  the  testimony  in  the  case,  and  therefore 
should  not  be  extended  so  as  to  prevent  the 
reopening  from  the  time,  at  least,  of  the 
close  of  the  testimony.     This,  it  is  said, 
must  be  the  case,  since  there  might  well  be 
a  change  in  conditions  between   the   time 
when  the  proof  in  a  case  was  taken  and  the 
entry  of  the  final  decree.    But  this  conten- 
tion   again    disregards    the    doctrine    upon 
which,  as  we  have  pointed  out,  the  reserva- 
tion in  rate-making  cases  came  to  be  ap- 
plied.    In  other  words,  it  treats  the  reser- 
vation    "without     prejudice"     as     looking 
backward,    and    overthrowing    that    which 
was  concluded  by  the  decree,  instead  of  con- 
sidering it  in   its  true  light,  that  is,  as 
looking  forward  to  the  future,  and  provid- 
ing for  conditions  which  might  then  arise, 
(b)  Conceding,  for  the  argument's  sake, 
the  controlling  infiuence  of  what  we  have 
said,  nevertheless  the  contention  is  that  the 
previous  decree  is  here  inapplicable,  since 
the  state  was  not  a  party  to  the  litigation 
in  which  the  decree  was  entered;   indeed, 
could  not  have  been  made  a  party  without 
its  consent.'    But  once  more  the  argument 
proceeds  upon  a  disregard  of  the  previous 
cases,    upon   the   authority    of    which    the 
right  was  exercised  to  obtain,  on  the  charge 
of  confiscation,  the  exertion  of  judicial  au- 
thority   [542]   to  stay  or  suspend  every 
vestige  of  power  asserted  by  the  state  stat- 
ute fixing  rates  imtil  the  controversy  was 
determined.     In  other  words,  the  proposi- 
tion    ignores     the     doctrine     settled     by 
the    previous    cases    that    there    inhered 
in,    and     went     along     with,     the     rate- 
making  power,  a  duty  on  the  part  of  the 
state     to     afford     means     for     judicially 
deciding   a  question   of   confiscation   when 
asserted.    It  is  true,  as  we  have  previously 
pointed  out,  that  because  there  was  a  right 
on  the  part  of  a  railroad  to  sue  to  prevent, 
tlie  execution  of  the  state  power  manifested 
in  the  rate-making  law,  it  did  not  follow 
that  the  railroad  was  deprived  of  its  right. 
to  resist  the  enforcement  of  the  law  by  way 
of  defense  when  an  attempt  was  made  to* 
enforce  the  law  against  it.    But  it  is  true 
also,  as  we  have  seen,  that  the  right  to- 
elect  between  the  two  was  undoubted,— -an. 
election  the  potency  of  which  was  pointed, 
out  in  the  Gill  Case,  supra,  and  was,  more- 
over, in  the  clearest  way,  fully  expounded 
in   the   Young  Case,   200   U.   8.   p.    166,. 

1156. 


542-644 


SUPREME  COURT  OP  THE  UNITED  STATES. 


Cot.  Tekh, 


52    L.    ed.    731,    13    L.RJL.(N.S.)    032,  28 
Sup.    Ct.    Rep.    441,    14    Ann.    Caa.    764. 
This  being  true,  it  is  obvious  that  the  ques- 
tion  here   is  not   how   far   the  decree   re- 
lied  upon  was   binding  upon  parties  who 
were    not    technical    defendants,    but    how 
far  is  it  binding  upon  the  railroad?     In 
other  words,  it  is  whether,  when  there  has 
been   an   election   to   obtain   a   remedy    by 
proceedings   against   particular  defendants, 
comprehensive  enough  to  restrain  the  giv- 
ing effect  of  every  vestige  of  state  power 
which  was  embraced  in  the  authority  ex- 
erted by  the  state  in  passing  the  ratemak* 
ing  law,  it  can  now  be  said  by  the  rail- 
road,  in   order  to   frustrate  or    limit   the 
decree  rendered  in  the  case,  that  the  re- 
straint did  not  operate  as  against  the  rate- 
making  power  so  far  as  the  interest  of  the 
state  is  concerned,  because  the  state  was 
not   a   party.     The   right  to   restrain   the 
whole  power  having  been  enjoyed  for  the 
purpose  of   the  complaint   as  to   confisca- 
tion   which  was   made,    the   contrary   can- 
not   be    assented  in  order    to    escape    the 
effect    of    the    decree,    holding    that    sach 
complaint  was  erroneously  made.     In  last 
analysis,  [543]  the  contention  comes  sim- 
ply to  asserting  that  the  settled  rule  of  Ex 
parte    Young    and    the    cases,    which    pre- 
ceded   it    was   wrong,    and    there    was    no 
right  to  restrain  the  complete  enforcement 
of   the'  rate   law   without  the   presence  of 
the  state  as  a  technical  party.     And  the 
cogency  of  this  consideration  is  made  quite 
clear    by    bearing    in    mind,    as    expressly 
pointed  out  in  the  Young  Case,  supra,  that 
the   power    which    the   court   possessed   by 
virtue  of  the  bringing  of  the  suit  at  the 
instance  of  the  railroad  to  enjoin  and  sus- 
pend the  whole  rate-making  law  comprehen- 
sively  included  the  right  to  stay  proceed- 
ings brought  in  other  courts,  which  would 
have  tended  to  set  aside  or  frustrate  the 
authority    to    completely    exercise    the   ju- 
risdiction acquired. 

As  it  results  from  what  we  have  said 
that,  in  our  opinion,  by  the  application  of 
the  most  elementary  principles  of  estoppel, 
the  railroad  may  not  be  heard  to  disavow 
what  it  asserted  in  order  to  secure  the  sus- 
pension of  the  rate  law  during  the  suit,  it 
follows  that  it  was  without  right  in  this 
case  to  assert  the  defense  of  confiscation, 
and  the  motion  to  strike  out  the  same  must 
therefore  prevail. 

As  the  view  which  we  have  taken  of  the 
controversy  has  not  rendered  it  necessary  to 
consider  whether,  in  any  event,  the  suit 
was  not  a  class  suit  binding  upon  all,  into 
that  subject  we  have  not  entered.  Addi- 
tionally, we  have  not  considered,  and  ex- 
press no  opinion  upon,  the  arguments  deal- 
ing with  questions  of  the  ultimate  right  to 
115« 


recover  in  the  absence  of  a  condition  to 
that  effect  imposed  when  the  injunction 
was  issued,  in  view  of  the  terms  of  the  in- 
junction bond,  etc.,  etc. 

The  motion  to  strike  out  the  defense  of 
confiscation  from  the  answer  is  granted. 

Mr.   Justice   McKenha   dissents. 


[544]  OGDEN  M.  REID,  Petitioner, 

V. 

JAMES   C.   PARGO,   as   President  of  the 
American  Express  Company,  et  al. 

(See  8.  C.  Reporter's  ed.  544-551.) 

Appeal  —  in  adiuiralty  —  trial  de  no  ro. 

1.  An  appeal  to  a  Federal  circuit  court 
of  appeals  from  a  final  decree  of  a  district 
court  in  a  suit  in  admiralty  brings  the  case 
before  it  for  a  trial  de  novo  so  that  the 
court  may  review  an  interlocutory  decree 
therein  which  was  not  appealed  from,  and 
allow  a  recovery  against  a  party  who  was 
dismissed  by  that  decree,  and  may  review 
both  interlocutory  and  final  decrees  so  far 
as  essential  to  grant  relief  to  a  party  who 
had  not  appeals  from  either  decree. 

I  For  other  cases,  see  Appoal  and  Error,  VIII. 
c.   3.   in   Digest   Sup.  Ct.   10U8.] 

Evidence  —  sufflciency  —  negligence. 

2.  The  presumption  that  a  rope,  used  as 
a  sling  by  stevedores  in  attempting  to  trans- 
fer a  boxed  automobile  from  a  ship's  hold  to 
a  pier,  was  strong  and  efficient,  arising 
from  the  fact  that  it  held  the  weight  of  the 
box  until  it  was  lifted  above  the  hatch,  and 
until,  by  a  swinging  motion,  the  danger 
of  the  strain  ins  or  cutting  of  the  rope  upon 
the  unprotected  edges  of  the  box  was  more 
likely  to  result,  gives  adequate  ground  for 
the  inference,  there  being  no  evidence  of 
any  defect  in  the  rope,  that  it  was  such 
cutting  and  straining  which  led  to  the 
severance  of  the  rope,  and  the  precipitation 
of  the  car  into  the  water. 

[For    other    cases,    see    Bvidence,    XII.    d,   in 
Digest   Sap.   Ct    1908.] 

Carriers  —  express  companies  —  liabil- 
ity as  forwarder. 

3.  An  express  company  which  accepted 
in  London  an  automobile  to  be  shipped  to 
New  York,  and,  having  boxed  the  same, 
shipped  it  by  an  ocean  carrier  without  de- 
claring its  value,  taking  from  the  steamship 
company  a  bill  of  lading  limiting  liability 
to  $100  unless  a  greater  value  is  declared 
and  extra  freight  paid,  was  secondarily  lia- 
ble to  the  owner,  where  the  car  was  serious- 
ly damaged  through  the  negligence  of  steve- 
dores employed  by  the^  steamship  company 
to  discharge  the  cargo,  even  though  the  ex- 
press company  be  regarded  as  a  mere  for- 
warding agent. 

[For    other    cases,    see   Carriers,    II.    b,    1,   Ut 
Digest  Sup.  Ct.  1908.] 

Shipping  —  vessel  as  carrier  —  limitinf 
liability  —  agreed  value. 

4.  A    steamship    company    may,    by  a 

241  U.  S. 


1915. 


KEID  ▼.  FARGO. 


ftipulation  in  its  bill  of  lading,  limit  its 
liability  to  $100,  unless  a  greater  value 
is  declared  and  such  extra  freight  as  may 
be  agreed  upon  is  paid. 

[For   other   cases,   see   Shipping,   IV.   c^  4,  In 
Digest  Sup.  Ct.  1908.] 

[No.  279.] 

Argued  March  13,  1916.    Decided  June  12, 

1916. 

ON  WRIT  of  Certiorari  to  the  United 
States  Circuit  Court  of  Appeals  for  the 
Second  Circuit  to  review  a  decree  which, 
reversing  a  decree  of  the  District  Court  for 
the  Southern  District  of  New  York  in  an 
admiralty  suit,  exonerated  stevedores  and 
an  express  company  from  liability  for  dam- 
age to  a  shipment,  and  held  the  steamship 
company  liable  to  an  amount  not  exceeding 
the  limitation  stated  in  the  bill  of  lading. 
Reversed  and  remanded  to  the  trial  court, 
with  directions  to  enter  a  decree  holding  the 
stevedores  primarily  liable,  and  the  steam- 
ship company  and  express  company  second- 
arily liable,  with  a  limitation  of  the  steam- 
ship company's  liability  to  that  stated  in 
the  bill  of  lading. 

See  same  ease  below,  130  C.  C.  A.  285, 
213  Fed.  771. 

The  facts  are  stated  in  the  opinion. 

Mr.  Oscar  R.  Houston  argued  the  cause 
and  filed  a  brief  for  petitioner: 

One  who  has  not  appealed  cannot  be 
heard  except  in  support  of  the  decree  be- 
low. 

Canter  ▼.  American  Ins.  Co.  3  Pet.  307,  7 
L.  ed.  688;  Stratton  ▼.  Jarvis,  8  Pet.  4,  9, 
10,  8  L.  ed.  846,  848,  849;  The  William 
Bagaley,  5  WaU.  377,  412,  18  L.  ed.  583, 
591 ;  The  Quickstep,  9  Wall.  665,  672,  19  L. 
ed.  767,  769;  The  Maria  Martin,  12  WaU. 
31,  20  L.  ed.  251;  The  Mabey,  13  WaU.  738, 
741,  20  L.  ed.  473,  474;  The  Merrimac,  14 
WaU.  199,  201,  20  L.  ed.  873,  874;  The  D.  R. 
Martin,  91  U.  S.  365,  366,  23  L.  ed.  439, 
440;  The  Stephen  Morgan,  94  U.  S.  599, 
24  L.  ed.  266. 

Even  if  the  rule  of  Munson  S.  S.  Line  ▼. 
Miramar  S.  S.  Co.  03  C.  C.  A.  360,  167  Fed. 
960,  is  sound,  the  present  case  is  distin- 
guishable. 

The  Dove,  91  U.  S.  381,  384,  385,  23  L. 
ed.  354,  355;  Bowker  v.  United  States,  186 
U.  S.  135,  140,  46  L.  ed.  1000,  1092,  22  Sup. 
Ct.  Rep.  802;  The  Hudson,  15  Fed.  172;  Re 
New  York  &  P.  R.  S.  S.  Co.  155  U.  S.  523, 
39  L.  ed.  246,  15  Sup.  Ct.  Rep.  183;  Bene- 
dict, Admiralty,  §  410;  Henderson  v.  Kan- 
awha Dock  Co.  107  C.  C.  A.  651,  185  Fed. 
781 ;  The  John  ft  Winthrop,  106  C.  C.  A.  1, 
182  Fed.  380. 

The  obligation  of  the  Express  Company' 
•0  li.  ed. 


to  declare  the  value  of  the  car  is  quite 
analogous  to  the  duty  of  every  forwarding 
agent  to  pass  on  to  the  carrier  the  fuU  in- 
structions for  delivery  received  by  it  from 
the  shipper;  and  it  is  well  settled  that  the 
forwarder  is  liable  for  failure  to  perform 
this  duty. 

Little  Miami  R.  Co.  ▼.  Washburn,  22 
Ohio  St.  324;  Chartrand  ▼.  Southern  R.  Co. 
86  S.  C.  479,  67  S.  E.  741;  Forsythe  v. 
Walker,  9  Pa.  148;  North  v.  Merchants'  & 
M.  Transp.  Co.  146  Mass.  315,  15  N.  E. 
779;  Colfax  Mountain  Fruit  Co.  v.  Southern 
P.  Co.  118  Cal.  648,  40  L.RJL  78,  50  Pac. 
775. 

The  obligation  of  the  Express  Company  is 
also  analogous  to  the  duty  of  the  seller  of 
personal  property  under  a  contract  by 
which  title  is  to  pass  to  the  buyer  upon 
shipment  by  a  common  carrier.  The  duty 
of  such  a  seller  to  ship  in  the  usual  and 
customary  manner  with  reasonable  care  is 
believed  to  be  substantially  the  same  as 
that  of  the  forwarding  agent  in  the  present 
case.  It  has  been  held  to  be  negligence  on 
the  part  of  the  seller  to  ship  goods  at  a 
valuation  sui>stantially  lower  than  the  true 
value. 

Clarke  v.  Hutchins,  14  East,  475;  Miller 
V.  Harvey,  83  Misc.  59,  144  N.  Y.  Supp.  624. 

Mr.  Walter  F.  Taylor  argued  the  cause 
and  filed  a  brief  for  James  C.  Fargo: 

The  appeal  by  T.  Hogan  &  Sons,  Inc., 
opened  the  whole  case  so  that  the  circuit 
court  of  appeals  had  power  to  reverse  the 
portion  of  the  decree  holding  the  Express 
Company  liable. 

Irvine  v.  The  Hesper,  122  U.  S.  256,  30 
L.  ed.  1175,  7  Sup.  Ct.  Rep.  1177;  Yeaton 
V.  United  States,  5  Cranch,  281,  3  L.  ed. 
101;  The  Lucille,  19  Wall.  73,  22  L.  ed.  64; 
The  Charles  Morgan,  115  U.  S.  69,  29  L. 
ed.  316,  5  Sup.  Ct.  Rep.  1172;  The  Con- 
nemara,  108  U.  S.  352,  360,  27  L.  ed.  751, 
754,  2  Sup.  Ct.  Rep.  754;  Munson  S.  S.  Line 
V.  Miramar  S.  S.  Co.  93  C.  C.  A.  360,  167 
Fed.  960;  The  Galileo,  29  Fed.  538;  The 
Umbria,  8  C.  C.  A.  194,  11  U.  S.  App.  612, 
59  Fed.  489. 

The  limitation  clause  contained  in  the 
bill  of  lading  was  not  intended  to  apply 
and  does  not  apply  to  shipments  on  which 
the  rates  are  fixed  on  a  basis  oth*er  than 
value.  When  it  is  manifest  that  the  rate 
on  a  shipment  would  not  be  in  any  way  af- 
fected by  disclosure  of  its  value,  an  agree- 
ment fixing  the  limit  of  liability  at  any- 
thing less  than  the  true  value  of  the  goods 
would  be  purposeless  from  the  shippers' 
point  of  view,  and  there  would  be  no  con- 
sideration to  support  it. 

Hart  V.  Pennsylvania  R.  Co.  112  U.  S. 
331,  28  L.  ed.  717,  5  Sup.  Ct.  Rep.   151; 

T7 


SCPKKMS  OOURT  OF  THE  UNITED  StATBS. 


Oct.  Tun, 


Hiuonr)  P.  R.  Co.  *.  HBrp«r  Btm.  121  C. 
C.  A.  BTO,  201  Fed.  071;  GMrge  K.  Pieroe 
Co.  T.  WelU,  F.  t  Co.  236  U.  S.  8TS,  284, 
S«  L.  ed.  S76,  682,  3G  Sup.  Ct.  Kep.  301. 

The  sdmiuion  of  T.  Hogan  ft  Sou,  Ine., 
tbiit  the  automobile,  while  in  their  eiutod;, 
fell  into  the  water,  is  enough  to  euetain 
the  cliarge  of  negligence  agatnit  them,  in 
the  absence  of  a  satistactorT'  explanation 
that  the  fall  of  the  car  was  attributable  to 
•ome  cause  for  which  they  were  not  re- 
■pooeible. 

Inland  &  8.  Coasting  Co.  t.  Tolson,  139 
U.  S.  551,  605,  35  L.  ed.  270,  271,  U  Sup. 
Ct.  Rep.  653;  Sweeney  v.  Erring,  228  U.  S. 
233,  67  L.  ed.  816,  33  Sup.  Ct.  Hap.  416, 
Ann.  Cm.  19I4D,  906;  Marceau  v.  Hut- 
land  S.  Co.  211  N.  Y.  203,  SI  L.R.A.(N.S.) 
1221,  105  N.  E.  206,  Ann.  Cas.  1S16C,  611. 

Mr.  RoBCoe  H.  Hnpper  argued  the 
eause,  and,  trith  Mr.  Norman  B,  Beecher, 
flled  a  brief  for  the  International  Mercan- 
tile Harine  Company: 

The  circuit  court  of  appeals  had  no  power 
to  direct  a  decree  against  the  ateamahip 


.  Chicago  ft  E.  H.  Co.  140  U.  3. 
S2,  3S  L.  ed.  331,  11  Sup.  Ct.  Hep.  690  i 
Jackson  t.  Jackson,  99  C.  C.  A.  ZSB,  176 
Fed.  716. 

The  only  fair  inference  from  the  evidence 
is  that  the  accident  was  due  to  the  cutting 
of  the  rope  on  the  unprotected  edgea  of  the 
case,  or  to  undne  strain  put  upon  the  sling 
in  pulling  the  case  sideways  across  the  deck. 
If  the  rope  parted  because  it  was  cut  by 
the  unprotected  edges  of  the  case,  the  con- 
dition of  the  breali  would  be  fully  explained. 
Although  Hogan's  gangway  man  testified 
that  there  were  no  jerks,  Hogan's  wlnchman 
was  not  produced.  No  sufficient  explana- 
tion having  been  given,  it  would  seem  that 
Hogan  must  be  held. 

San  Juan  Light  ft  Transit  Co.  v.  Hequena, 
224  U.  B.  89,  S8,  99,  00  L.  ed.  880,  684,  32 
Sup.  Ct.  Rep.  399. 

If,  notwithstanding  the  pleadings,  Reid 
be  regarded  as  claiming  against  the  steam- 
ship company,  it  cannot  be  doubted  that 
the  steamship  company  can  avail  itself 
against  him  of  this  contract,  made  for  its 
benefit  (Hendrick  v.  IJndsay,  93  U.  S.  143, 
23  L.  ei].  860,  and  particularly  by  way  of 
release  from  liability,  Robinson  v.  Balti- 
more ft  0.  R.  Co.  237  U.  8.  84,  69  L.  ed. 
849,  30  Sup.  Ct  Rep.  491.  8  N.  C.  C.  A.  1 ; 
Baltimore  ft  0.  S.  W.  R.  Co.  v.  Voight,  176 
U.  S.  498,  44  L.  ed.  S60,  20  Sup.  Ct.  Rep. 
386). 

No  more  can  it  be  doubted  that  by  these 
provisions  of  the  Express  Company's  con- 
ditions of  carriage  the  steamship  company 
was  devested  of  its  insurer's  liability  both 
11S8 


aa  to  Reid  and  the  Bxprei 
remained  responsible  only  for  such  negli- 
gence as  should  be  proved  against  It  So 
long  aa  the  stipulation  does  not  purport  to 
avoid  liability  for  negligence,  it  is  no  ob- 
jection that  the  burden  of  proof  Is  placed 
on  the  shipper. 

New  Jersey  Steam  Nav.  Co.  v.  Merchants' 
Bank,  6  Hon.  344.  384,  ]2  L.  ed.  465,  4B3; 
Clark  v.  Barnwell,  12  How.  272,  13  L.  ed. 
986:  York  Mfg.  Co.  v.  Illinois  C.  R.  Co.  3 
Wall.  107,  18  L.  ed.  170;  The  Folmina.  212 
U.  S.  354.  362,  63  L.  ed.  640,  650,  29  3np. 
Ct.  Hep.  363,  16  Ann.  Caa.  748. 

The  steamship  company's  liability,  if  any 
eziBted,  was  limited  to  8100  by  the  term* 
of  its  bill  of  lading. 

Hart  V.  Pennsylvania  R.  Co.  112  U.  8. 
331,  28  L.  ed.  717,  0  Sup.  Ct.  Rep.  161-, 
Adams  Eip.  Co.  t.  Croninger,  228  L'.  S.  491, 

67  I*  ed.  314,  44  L.R.A.(N.8.)  257,  33  Sup. 
Ct.  Rep.  148;  Wells,  F.  ft  Co.  v.  Neiman- 
Usrcui  Co.  227  U.  S.  469,  67  L.  ed.  600,  33 
Sup.  Ct.  Rep.  267)  Kansas  City  Southern 
R.  Co.  T.  Carl,  227  U.  B.  639,  67  L.  ed.  683, 
33  Sup.  Ct.  Rep.  391 ;  Missouri,  K.  ft  T.  R. 
Co.  v.  Harriman.  227  U.  S.  667,  67  L.  ed. 
OQO,  33  Sup.  Ct.  Rep.  397;  Great  Northern 
R.  Co.  T.  O'Connor,  232  U.  S.  608,  68  L.  ed. 
703,  34  Sup.  Ct  Sep.  360,  8  N.  C.  C.  A  63; 
Boston  ft  M.  R.  Co.  v.  Booker,  233  U.  S.  97, 

68  L.  ed.  866,  L.R.A.iei5B,  4Q0,  34  Sup.  Ct 
Rep.  620,  Ann.  Can.  IQISD,  503;  Atchison, 
T.  ft  S.  F.  R.  Co.  r.  Robinson,  23S  V.  8. 
173,  68  L.  ed.  901,  34  Bup.  Ct.  Rep.  656; 
George  N.  Pierce  Co.  v.  Wells,  F.  ft  Co.  236 
U.  S.  276,  fiB  L.  ed.  070,  36  Sup.  Ct  Rep. 
361;  Hohl  v.  Norddeutscher  Lloyd,  99  C.  C 
A.  166,  176  Fed.  644. 

The  stipulation  for  limited  liability  is 
not  affected  by  the  fact  that  the  steamship 
company's  printed  schedule  names  only  one 

Cau  V.  Texas  ft  P.  R.  Co.  184  U.  S.  427. 
431,  432,  48  L,.  ed.  1053,  1066,  10S7,  24  Sup, 
Ct.  Rep.  663,  16  Am.  Neg.  Rep.  069. 

In  a  peculiar  sense  the  Express  Compsny, 
itself  a  common  carrier, — and  aa  such  not 
under  the  disability  mentioned  by  Mr.  Jus- 
tice Gray  in  Liverpool  ft  G.  W.  Steam  0> 
V.  Phenix  Ins.  Co.  (The  Montana)  120  U.  8. 
397,  441,  32  L.  ed.  788,  792,  9  Sup.  Ct  Rep. 
460, — was  a  competent  contractor  and  could 
deal  at  arm's  length  with  the  steamship 
company,  agreeing  that  the  value  of  the 
motor  rar  was  not  nver  $100,  for  the  asks 
of  avoiding  the  payment  of  extra  freight 

George  N.  Pierce  Co.  v.  Wells,  P.  ft  Co. 
230  U.  S.  276,  59  L.  ed.  676,  35  Sup.  Ct 
Rep.  351. 

Mr.  Livingston  PIntt  argued  the  causey 
and,  with  Mr.  Frank  H.  Piatt,  filed  a  hrial 
for  T.  Uogan  ft  Sons: 

Where  the  ship  fnmishes  the  rope  used 
141  U.  8. 


1016. 


REID  ▼.  FARGO. 


645-547 


by  the  stevedore,  the  re8pon8H>ilit7  for  the 
oondition  of  the  rope  rests  with  the  ship, 
and  the  stevedore  is  justified  in  assuming 
it  is  safe. 

Foster  v.  Bucknall  8.  S.  Lines,  124  C.  C. 
A.  297,  206  Fed.  416;  The  Phoenix,  34  Fed. 
7C0;   The  Rheola,   19  Fed.  926. 

Tlie  uncontradicted  evidence  is  that  the 
stevedores  used  due  care.  The  stevedores 
were  not  insurers  of  the  safety  of  the  auto- 
mobile. There  was  no  presumption  of  neg- 
ligence. The  burden  remained  upon  the 
petitioner  to  prove  negligence. 

Sweeney  ▼.  Erving,  228  U.  S.  233,  240,  67 
L.  ed.  815,  818,  33  Sup.  Ct.  Rep.  416,  Ann. 
Cas.  1914D,  905.  See  also  The  King  Oruf- 
fydd,  65  C.  C.  A.  495,  131  Fed.  189;  Con- 
nors V.  King  Line,  98  App.  Div.  261,  90  N. 
Y.  Supp.  652. 

Mr.  Chief  Justice  White  delivered  the 
opinion  of  the  court: 

This  controversy  thus  arose:  In  Decem- 
ber, 1910,  Reid,  the  petitioner,  delivered  in 
London  to  the  American  Express  Company 
an  automobile,  to  be  carried  to  New  York. 
The  Express  Company,  in  a  communication 
concerning  the  shipment,  was  informed  that 
the  car  was  worth  about  $3,900.  The  car 
was  boxed  by  the  Express  Company  and  by 
it  delivered  to  the  Minnewaska,  a  steamship 
belonging  to  the  International  Mercantile 
Marine  Company,  boupd  for  New  York.  The 
Express  Company  shipped  the  'car  in  its  own 
name  as  consignor,  to  itself  in  New  York  as 
consignee,  and  no  express  notice  was  given 
to  the  ship  of  the  real  value  of  the 
package  and  its  contents.  The  bill  of 
lading  issued  by  the  steamship  company 
expressly  limited  the  liability  to  $100, 
and  contained  the  following  clause:  "It 
is  also  mutually  agreed  that  the  value 
of  each  package  shipped  hereunder  does  not 
exceed  $100,  or  its  equivalent  in  English 
currency  on  which  basis  the  freight  is  ad- 
juHted,  and  the  carrier's  liability  shall  in  no 
case  exceed  that  simi,  imless  a  value  [546] 
in  excess  thereof  be  specially  declared,  and 
stated  herein,  and  extra  freight  as  may  be 
agreed  on  paid."  On  the  arrival  of  the 
ship  at  New  York,  T.  Hogan  &  Sons,  In- 
corporated, stevedores,  were  employed  to 
discharge  the  cargo.  A  sling  was  placed 
around  the  box  containing  the  car,  and  a 
fall,  with  a  hook  attached  to  it,  was  af- 
fixed to  the  sling,  and  by  a  winch  the  car 
was  lifted  up  from  the  hold,  through  the 
hatchway.  When  it  had  passed  above  the 
hatchway,  a  hook  attached  to  another  tackle 
was  fastened  to  the  sling,  this  second  tackle 
being  used  to  swing  the  package  toward 
and  over  the  side  of  the  ship,  to  land  it  on 
the  pier.  This  was  not  accomplished,  how- 
ever, because,  as  the  package  swung  over 
•0  li.  ed. 


the  side  of  the  ship,  toward  the  pier,  the 
sling  broke,  and  the  car  fell  into  the  water, 
and  was  seriously  damaged. 

In  November,  1911,  Reid  filed  his  libel  in 
the  district  court  of  the  United  States  for 
the  southern  district  of  New  York,  against 
the  Express  Company,  to  recover  from  it 
the  amount  of  damage  caused  to  the  automo- 
bile. Before  answering,  the  Express  Com- 
pany, in  conformity  to  admiralty  rule  59, 
of  this  court,  and  with  rule  15  in  admiralty 
for  the  southern  district  of  New  York,  filed 
two  petitions,  one  against  the  steamship 
company,  and  the  other  against  Hogan  ft 
Sons,  to  make  them  parties  defendant  on 
the  ground  that,  if  there  was  any  liability 
on  the  part  of  the  Express  Company  [547] 
on  the  libel  of  Reid,  both  the  steamship  com- 
pany and  Hogan  &  Sons  were  responsible 
therefor,  and  asking  a  decree  over  against 
each  of  them  separately  in  case  there  was 
any  decree  against  the  Express  Company. 
Thereupon  the  Express  Company  answered 
the  original  libel,  denying  responsibility  on 
the  ground,  among  others,  that  it  was  a  mere 
forwarder.  Subsequently  both  Hogan  ft 
Sons  and  the  steamship  company  answered 
not  only  the  petitions  of  the  Express  Com- 
pany, making  them  parties  defendant,  but 
also  the  original  libel,  traversing  the  al- 
leged liability  on  various  grounds.  The 
latter  company,  however,  referring  to  the 
limitation  of  liability  to  $100  in  the  bill  of 
lading  which  it  had  issued,  admitted  its 
responsibility  to  that  extent,  and  alleged 
that  the  sum  thereof  had  been  offered  and 
declined. 

In  March,  1913,  an  interlocutory  decree 
was  entered,  holding  that  Hogan  ft  Sons 
were  primarily  responsible,  and  that  the 
Express  Company  was  secondarily  so,  and 
that  when  the  amoxmt  of  the  loss  was  as- 
certained, Reid  would  therefore  have  the 
right  to  recover  the  amount  from  Hogan  ft 
Sons,  and  in  addition  to  recover  from  the 
Express  Company  any  part  of  the  sum 
which  he  was  unable  to  collect  imder  execu- 
tion from  Hogan  ft  Sons.  The  final  decree, 
which  thereafter  fixed  the  amount  at  $2,- 
724.40,  carried  out  the  interlocutory  decree. 
Nobody  appealed  from  the  interlocutory 
decree,  and  the  Express  Company  did  not 
appeal  from  the  final  decree,  fixing  its 
secondary  liability.  Hogan  ft  Sons,  how- 
ever, did  appeal.  The  court  below,  consider- 
ing that,  on  the  appeal,  the  case  was  before 
it  for  a  trial  de  novo,  and  therefore  that  the 
rights  and  liabilities  of  all  the  'parties  must 
be  considered  from  that  point  of  view,  re- 
versed the  decree  below,  and  held  that  error 
had  been  committed  in  the  decree  rendered 
against  Hogan  ft  Sons,  because  the  proof 
did  not  establish  that  they  had  been  negli- 
gent. As  to  the  Express  Company,  it  was  also 

1159 


i 


548-550 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct,  Term, 


held  that  error  had  been  [548]  committed 
in  decreeing  it  to  be  liable  secondarily,  be- 
cause, in  receiving  the  automobile,  it  had 
acted  in  the  capacity  of  a  mere  forwarder, 
and  had  discharged  its  obligations  in  that 
respect.  As  to  the  decree  which  dismissed 
the  steamship  company,  it  was  held  that 
error  had  been  committed,  because  that  com- 
pany, as  an  insurer,  was  liable,  not,  how- 
ever, exceeding  the  amount  of  $100,  the  lim- 
itation stated  in  the  bill  of  lading.  As  the 
result  of  the  allowance  of  a  petition  for 
certiorari,  the  correctness  of  these  conclu- 
sions is  now  before  us  for  decision. 

At  the  threshold  it  is  insisted  that  the 
court  below  had  no  authority  to  consider 
the  case  as  before  it  for  a  new  trial,  that  is, 
de  novo,  and  to  award  relief  upon  that 
theory,  and  that  consequently  it  erred  in  re- 
viewing the  interlocutory  decree,  which  was 
not  appealed  from,  by  which  the  steamship 
company  was  dismissed,  and  allowing  a  re- 
covery against  that  company,  and  also  in 
reviewing  both  the  interlocutory  and  final 
decrees  so  far  as  it  was  essential  to  grant 
relief  to  the  Express  Company,  because  that 
company  had  not  appealed.  It  is  not  denied 
that  in  the  second  circuit  the  right  to  a 
de  novo  Vial  was  considered  as  settled  by 
Munson  S.  S.  Line  v.  Miramar  S.  S.  Co.  93 
C.  C.  A.  360,  167  Fed.  960,  and  that  a  well- 
established  practice  to  that  effect  obtained, 
but  it  is  insisted  that  a  g<meral  review  of 
the  adjudged  cases  on  the  subject  will  show 
the  want  of  foundation  for  the  rule  and 
practice.  But  we  think  this  contention  is 
plainly  without  merit,  and  that  the  right  to 
a  de  novo  trial  in  the  court  below  authorita- 
tively resulted  from  the  ruling  In  Irvine  v. 
The  Hesper,  122  U.  S.  256,  30  L.  ed.  1175, 
7  Sup.  Ct.  Rep.  1177, — a  conclusion  which 
is  plainly  demonstrated  by  the  opinion  in 
that  case  and  the  authorities  there  cited, 
and  the  long-continued  practice  which  has 
obtained  since  that  case  was  decided, 
and  the  full  and  convincing  review  of  the 
authorities  on  the  subject,  contained  in  the 
opinion  in  the  Miramar  Case.  Entertaining 
this  view,  we  do  not  stop  to  consider  the  vari- 
ous arguments  [549]  which  are  here  pressed 
upon  our  attention,  tending  at  least  indi- 
rectly to  establish  the  nonexistence  of  the 
right  to  the  trial  de  novo  in  the  court  below, 
or  that  this  case,  for  reasons  which  are 
wholly  unsubstantial,  may  be  distinguished 
and  made  an  exception  to  the  general  rule, 
because  to  do  so  would  serve  no  useful  pur- 
pose, and  would  be  at  least  impliedly  to  ad- 
mit that  there  was  room  to  discuss  a  ques- 
tion concerning  which  there  was  no  room  for 
discussion  whatever. 

It  is  conceded  that  if  the  grounds  relied 
upon  to  fix  liability  as  against  the  Express 
Company,  the  steamship  company,  and  Ho- 

1  1  AH 


gan  &  Sons  are  established,  there  is  a  right 
to  an  independent  recovery  as  to  each, 
whatever  may  be  the  recourse  of  these  par- 
ties to  recover  over  as  against  each  other. 
Which  of  the  defendants,  if  any,  was  liable 
primarily  for  the  loss,  is,  then,  to  be  con- 
sidered. We  first  approach  this  question 
from  the  point  of  view  of  Hogan  &  Sons,  be- 
cause undoubtedly  that  company  was  in  pos- 
session and  control  of  the  car  at  the  time  it 
dropped  into  the  river  and  was  damaged. 
While  there  is  some  confusion  and  various 
slight  contradictions  in  the  testimony,  we 
are  of  the  opinion  that  the  trial  court  was 
right  in  holding  that  the  loss  occurred 
through  the  fault  of  Hogan  k  Sons,  and 
therefore  that  the  court  below  erred  in  re- 
versing the  decree  against  that  company. 
And  without  undertaking  to  review  the 
testimony,  to  all  of  which  we  have  given  a 
careful  consideration,  we  content  ourselves 
with  briefly  pointing  out  the  general  points 
of  view  which  have  led  us  to  the  conclusion 
stated.  Without  saying  that  the  mere  fact 
of  the  dropping  of  the  automobile  into  the 
water  in  the  course  of  delivery  from  the 
ship's  hold  to  the  pier  serves  to  speak  for  it- 
self on  the  issue  of  responsibility,  that  is,  to 
bring  the  case  within  the  principle  of  res 
ipsa  loquitur,  we  are  of  the  opinion  that,  by 
analogy,  the  case  well  illustrates  that  rule  for 
this  reason:  Some  cause  must  be  found  for 
the  dropping  of  the  car  into  the  river,  and 
only  [550]  two  theories  on  this  subject  may 
be  deduced  from  the  proof:  either  that  the 
acident  to  the  car  occurred  without  fault,  as 
the  result  of  the  breaking  of  the  rope  com- 
posing the  sling  because  of  some  unseen  and 
hidden  defect  in  such  rope,  or  that  it  was 
occasioned  by  some  act  of  negligence  or  want 
of  care  in  handling  the  car.  Tlie  first,  we 
are  of  opinion,  is  without  any  substantial 
support  in  the  proof;  in  fact,  to  accept  it 
would  confiict  with  direct  and  positive  proof 
to  the  contrary.  That  view,  therefore,  could 
only  be  sustained  by  substituting  imagina- 
tion for  proof.  The  second,  on  the  contrary, 
we  are  of  opinion,  finds  cogent  support  from 
the  proof  which  could  only  be  escaped  by 
overthrowing  it  by  the  process  of  imagina- 
tion to  which  we  have  just  referred.  It  is 
unquestioned  that  when  the  sling  was  put 
around  the  box  containing  the  car,  prepar- 
atory to  attaching  the  hook  in  order  to 
hoist  it,  no  blocks  or  other  means  were  used 
to  prevent  the  rope  from  being  worn  or  cut 
by  the  edges  of  the  box.  The  presumption 
that  the  rope  was  strong  and  elficient,  aris- 
ing from  the  fact  that  it  held  the  weight  of 
the  box  until  it  was  lifted  above  the  hatch, 
and  until,  by  the  swinging  motion,  the  dan- 
ger of  straining  or  cutting  of  the  ropes  up- 
on the  edges  was  more  likely  to  result,  gives 
adequate  groimd  for  the  inference  that  such 

241   V.  8. 


1015. 


LANCASTER  v.  KATHLEEN  OIL  00. 


550,  551 


cutting  and  straining  occurred  and  led  to 
the  severance  of  the  rope,  and  the  precipita- 
tion of  the  car  into  the  water.  And  this  in- 
ference is  supported  hy  various  other  cir- 
cumstances which  we  do  not  stop  to  reca- 
pitulate. 

Were  the  steamship  company  and  the  Ex- 
press Company,  in  the  order  stated,  liable 
to  Reid,  the  libellant,  dependent  upon  his  in- 
ability to  make  under  execution  the  amount 
of  the  decree  from  Hogan  &  Sons,  is,  then, 
the  only  remaining  question.  In  substance 
this  question,  however,  is  negligible  since, 
in  the  argument  at  bar,  it  was  conceded  that 
T.  Hogan  k  Sons,  Incorporated,  were  amply 
solvent,  and  that  there  was  no  question  of 
their  ability  [551]  to  respond  to  any  decree 
which  might  be  rendered  against  them.  To 
avoid,  however,  all  miscarriage  of  right  from 
any  possible,  though  improbable,  change  of 
conditions,  without  going  into  detail  or  stat- 
ing the  considerations  which  control  our  con- 
clusion on  the  subject,  we  content  ourselves 
with  saying,  first,  that  as  to  the  steamship 
company  we  are  of  the  opinion  that,  on  the 
failure  to  make  the  amount  of  the  decree 
against  Hogan  &  Sons,  the  libellant  will  be 
entitled  to  recover  over  against  that  com- 
pany to  the  amount  of  $100,  to  which  its 
liability  was  limited,  as  stated  in  the  bill  of 
lading  under  which  the  shipment  was  made ; 
second,  that  even  looking  upon  the  Express 
Company  as  a  forwarder,  under  the  circum- 
stances of  the  case  and  the  terms  of  the  bill 
of  lading  under  which  the  car  was  shipped 
by  that  company,  the  trial  court  rightly  held 
it  liable,  and  that  recovery  against  it  on 
failure  to  enforce  the  decree  against  Hogan 
ft  Sons  will  also  obtain. 

It  follows  that  the  decree  below  must  be 
reversed  and  the  cause  remanded  to  the  trial 
court,  with  directions  to  set  aside  its  decree 
in  so  far  as  it  dismissed  the  steamship 
company  from  the  case,  and  to  enter  a  de- 
eree  in  conformity  with  this  opinion. 

Reversed  and  remanded. 


OSCAR  M.  LANCASTER  and  Patrick  M. 

Kerr,  Appts., 

V. 

KATHLEEN  OIL  COMPANY,  Josiah 
Brown,  et  aJ. 

(See  S.  C.  Reporter's  ed.  551-^56.) 

Pleading  —  Jurisdictional  aTerments  ^ 
Federal  question. 

1.  Allegations   in  a  bill   filed  by  the 
lessees  of  an  oil  and  gas  mining  lease  from 

None. — On  effect  of  remedy  at  law  upon 
equitable  jurisdiction  to  remove  cloud  on 
title— see  note  to  Whitehouse  t.  Jones,  12 
L.R.A.(N.S.)   49. 
•0  li.  ed. 


the  heirs  of  an  Indian  homestead  allottee 
for  the  recovery  of  possession  from  a  sub- 
sequent lessee  of  the  same  premises,  and  for 
an  injunction  restraining  the  assertion  of 
any  rights  under  such  lease,  and  any  inter- 
ference with  plaintiffs'  rights  under  their 
lease,  that  plaintiffs'  lease,  though  not  ap- 
proved by  the  Secretary  of  the  Interior,  was 
valid,  and  that  the  subsequent  lease  to 
defendant,  which  had  such  approval,  was 
void  because,  by  the  act  of  May  27,  1908 
(35  Stat,  at  L.  312,  chap.  19U),  the  land 
descended  to  the  heirs  of  the  Indian  al- 
lottee free  from  any  restrictions  against 
leasing  the  same  for  oil  and  mining  pur- 
poses, and  because,  if  that  act  did  impose 
restrictions  as  to  such  a  lease,  it  was  re- 
pugnant to  the  Federal  Constitution, — were 
material  to  the  cause  of  action  stated  in 
the  bill,  and  therefore  present  a  cause  of 
action  within  the  jurisdiction  of  a  Federal 
district  court  as  a  Federal  court. 
(For  other  cases,  see  Pleading  337-349,  in 
Digest   Sup.   Ct.   1908.] 

Cloud  on  title  —  when  maintainable  — 
remedy  at  law  —  possession. 

2.  The  rule  that  a  suit  to  quiet  title 
can  only  be  brought  by  one  in  possession  has 
no  application  where  the  legal  remedy  by 
an  action  in  ejectment  is  not  available. 
[For  other  cases,  see  Cloud  on  Title,  11.  d,  in 
Digest  Bup.  Ct.  1008.] 

[No.  336.] 

Submitted  April  26,  1916.    Decided  June  12, 

1916. 

APPEAL  from  the  District  Court  of  the 
United  States  for  the  Eastern  District 
of  Oklahoma  to  review  a  decree  dismissing 
a  suit  on  the  ground  that  the  bill  alleged 
no  cause  of  action  within  the  jurisdiction 
of  the  court  as  a  Federal  court.  Reversed 
and  remanded  for  further  proceedings. 
The  facts  are  stated  in  the  opinion. 

Mr.  William  F.  Tucker  submitted  the 
cause  for  appellants.  Mr.  Hulette  F.  Aby 
was  on  the  brief: 

The  character  of  the  interest  of  the 
lessee  in  an  Oklahoma  oil  and  gas  mining 
lease  is  an  incorporeal  hereditament,  a 
chattel  real,  and  passes  only  the  privilege 
to  explore;  and  this  rule  of  property  will 
be  recognized  and  given  effect  by  the  Fed- 
eral courts. 

Duff  V.  Keaton,  83  Okla.  92,  ^2  L.R.A. 
(N.S.)  472,  124  Pac.  291;  Frank  Oil  Co. 
▼.  Belleview  Gas  &  Oil  Co.  29  Okla.  719, 
43  L.RJk.(N.S.)  487,  119  Pac.  260;  Guffey 
V.  Smith,  237  U.  S.  101,  59  L.  ed.  856,  35 
Sup.  Ct.  Rep.  526. 

The  owner  of  an  oil  and  gas  mining 
lease,  under  which  no  development  has  been 
made,  cannot  maintain  ejectment  thereon  in 
the  courts  of  Oklahoma. 

Frank  OU  Co.  v.  Belleview  Gas  &  Oil 
Co.    supra;     Kolachny    t.    Qalbreath 


SUPREME  OOURT  OF  THE  UNITED  STATB& 


Oct.  Tbim, 


OkU.  772,  38  LJLA.(N^.)   451,  110  Ffte 
902. 

Courts  of  equity  will  protect  ezduBive 
rights  and  licenses,  privileges,  and  ease- 
ments, where  claimed  for  a  valuable  con- 
sideration, by  injunction. 

Alpers  V.  San  Francisco,  32  Fed.  503; 
Drush-Swan  Electric  Light  Co.  v.  Brush 
Electric  Co.  41  Fed.  163;  Duff  y.  Russell, 
133  N.  Y.  678,  31  N.  E.  622;  Franklin 
Telcg.  Co.  V.  Harrison,  145  U.  S.  459,  36 
L.  ed.  776,  12  Sup.  Ct.  Rep.  900;  Goddard 
V.  Wilde,  17  Fed.  845;  Joy  v.  St.  Louis, 
138  U.  S.  1,  46,  34  L.  ed.  843,  857,  11  Sup. 
Ct.  Rep.  243;  Lumley  v.  Wagner,  1  DeG. 
M.  &  G.  604,  21  L.  J.  Ch.  N.  S.  898,  16 
Jur.  871,  6  Eng.  Rul.  Cas.  652;  Manhat- 
tan Mfg.  &  Fertilizing  Co.  ▼.  New  Jersey 
Stock  Yard  &  Market  Co.  23  N.  J.  £q.  161; 
Philadelphia  Ball  Club  ▼.  Lajoie,  202  Pa. 
210,  58  L.RJL  227,  90  Am.  St.  Rep.  627,  51 
Atl.  973;  6  Pom.  Eq.  Jur.  9  773;  Singer 
Sewing  Mach.  Co.  ▼.  Union  Buttonhole  & 
Embroidery  Co.  Holmes,  253,  Fed.  Cas.  No. 
12,904;  Steinau  ▼.  Cincinnati  Gaslight  & 
Coke  Co.  48  Ohio  St.  324,  27  N.  £.  545; 
Western  U.  Teleg.  Co.  v.  Union  P.  R,  Co. 
1  McCrary,  558,  3  Fed.  423. 

Where,  under  the  laws  and  decisions  of 
the  state,  no  remedy  at  law  exists  in  the 
state  courts,  the  United  States  courts,  fol- 
lowing in  actions  at  law  the  local  laws  and 
modes  of  procedure,  can  grant  no  such 
remedy,  and  the  owner  of  a  valid  oil  and 
gas  mining  lease  on  lands  in  such  state 
may  maintain  an  action  to  enjoin  those 
claiming  the  right  and  about  to  operate  for 
and  produce  and  sell  the  oil  and  gas  there- 
from under  a  later  and  similar  lease  from 
the  same  lessors,  and  in  such  action  the 
court  will  determine  the  rights  of  the  two 
lease  claimants;  and  if  the  title  of  the 
plaintiff  be  found  valid,  plaintiff  will  be 
entitled  to  injunction,  discovery,  and  ac- 
counting. 

Allegheny  Oil  Co.  ▼.  Snyder,  45  C.  C. 
A.  604,  106  Fed.  764;  Bettman  ▼.  Harness, 
42  W.  Va.  433,  36  L.RA.  566,  26  S.  B. 
271,  18  Mor.  Min.  Rep.  500;  Brown  v.  Spil- 
man,  155  U.  S.  665,  39  L.  ed.  304,  15  Sup. 
Ct.  Rep.  245;  Coosaw  Min.  Co.  v.  South 
Carolina,  144  U.  S.  550,  36  L.  ed.  537,  12 
Sup.  Ct.*Rep.  689;  Eriiardt  v.  Boaro,  113 
U.  S.  527,  28  L.  ed.  1113,  5  Sup.  Ct.  Rep. 
5G0,  15  Mor.  Min.  Rep.  472;  Franklin 
Tcleg.  Co.  V.  Harrison,  145  U.  S.  459,  36 
L.  ed.  776,  12  Sup.  Ct.  Rep.  900;  Friend 
V.  Mallory,  52  W.  Va.  53,  43  S.  B.  114; 
Gillespie  v.  Fulton  Oil  &  Gas  Co.  230  HI. 
188,  86  N.  £.  219;  Guffey  v.  Smith,  237 
U.  S.  101,  59  L.  ed.  856,  35  Sup.  Ct.  Rep. 
526;  Joy  v.  St.  Louis,  138  U.  S.  1,  84  L. 
ed.  843,  11  Sup.  Ct.  Rep.  243;  Kolachny  ▼. 
1162 


Galbreath,   26   OkU.   772,  38   LJLA.(N£.) 
451,  110  Plu^  902. 

In  an  action  for  injunction  and  account- 
ing, brought  by  the  owners  of  an  oil  and 
gas  mining  lease  while  out  of  possession 
of  the  leased  premises,  and  against  the 
lessors  and  lessees  of  a  subsequent  lease, 
where  the  lessees  of  the  second  lease  have 
entered  thereunder  and  are  about  to  mine 
and  remove  the  oil  and  gas  underlying  the 
lands,  under  the  second  lease,  the  allega- 
tions of  the  bill  as  to  the  character  and 
derivation  of  the  title  of  the  plaintiff,  and 
the  character  and  derivation  of  the  claim 
and  title  asserted  by  the  defendant,  in 
connection  with  the  nature  of  the  acts  done 
thereunder,  are  usual,  proper,  and  essential 
in  such  a  bill. 

Blakeslee  v.  Missouri  P.  R.  Co.  43  Neb. 
61,  61  N.  W.  118;  Chicago  Qty  R,  Co. 
V.  General  Electric  Go.  74  HL  App.  465; 
Coffeyville  Min.  &  Gas  Co.  v.  Citizens* 
Natural  Gas  &  Min.  Co.  55  Kan.  173,  40 
Pac.  326;  Cooke  v.  Central  Dist.  &  Print- 
ing Teleg.  Co.  21  Pa.  Super.  Ct.  43;  Doug- 
lass T.  Nuzum,  16  Kan.  515;  Franklin 
Teleg.  Co.  v.  Harrison,  145  U.  S.  459,  36 
L.  ed.  776,  12  Sup.  Ct  Rep.  100;  Guffey 
▼.  Smith,  237  U.  S.  101,  59  L.  ed.  856,  35 
Sup.  Ct.  Rep.  526;  Hungerford  v.  Cush- 
ing,  8  Wis.  332;  Joy  v.  St.  Louis,  138 
U.  6.  1,  34  L.  ed.  843,  11  Sup.  Ct.  Rep. 
243;  McClanahan  v.  Davis,  8  How.  170, 
182,  12  L.  ed.  1033,  1030;  McKinsie  v.  Ma- 
thews, 59  Mo.  99;  Mendelson  ▼.  McCabe, 
144  Cal.  230,  103  Am.  St.  Rep  70,  77  Pac. 
915;  MiUer  ▼.  Burket,  132  Ind.  469,  32  N. 
E.  309;  Ringo  ▼.  Binns,  10  Pet.  269,  9  L.  ed. 
420;  Ryan  v.  Fulghum,  96  Ga.  234,  22  S. 
E.  940;  Shulthis  ▼.  McDougal,  225  U.  S. 
561,  56  L.  ed.  1205,  32  Sup.  Ct.  Rep.  704; 
Stillwell  V.  Adams,  29  Ark.  346;  Story,  Eq. 
PI.  506;  Wilson  Cypress  Co.  v.  Del  Pozo  j 
Marcos,  236  U.  S.  635,  50  L.  ed.  758,  35 
Sup.  Ct  Rep.  446. 

In  an  action  by  the  lessee  under  an  oil 
and  gas  lease  covering  Oklahoma  lands,  for 
injunction,  discovery,  and  accounting, 
brought  against  a  second  lessee  of  the  same 
lands,  the  plaintiff,  by  pleading  the  char- 
acter and  derivation  of  his  title  under  an 
act  of  Congress,  and  the  character  and 
derivation  of  the  claim  and  title  asserted 
by  the  defendant,  and  the  facts  in  relation 
thereto,  and  it  being  alleged  that  a  decision 
of  the  controversy  between  the  parties  de- 
pends upon  the  construction  of  certain 
specified  acts  of  Congress  of  the  United 
States,  or  parts  thereof  applicable  to  the 
case,  and  that  certain  provisions  of  the  acts 
of  Congress  upon  which  the  adverse  claim 
and  title  rest  are  violative  of  provisions 
of  the  Constitution  of  the  United  States, 
spedfled  in  the  bill,  there  is  presented  by 

241  U.  8. 


1915.  LANCASIER  ▼.  KATHLEEN  OIL  (XX. 

appropriate  allegations  a  controveny  aria-  than  the  mere  statement  of  plaintiffs'  right 
ing  under  the  Constitution  and  laws  of  the  and  title,  the  facts  constituting  the  in- 
United  States,  of  which  the  district  court  vasion  of  such  right,  and  the  nature  and 
of  the  United  States  has  jurisdiction.  extent  of  the  injury  suffered,  so  as  to  indi- 
Bankers'  Mut.  Casualty  Co.  v.  Minne-  cate  the  nature  of  the  relief  required.  It 
apolis,  St.  P.  &  S.  Ste.  M.  R.  Co.  192  U.  S.  is  not  necessary  to  state  that  the  right 
371,  381,  48  L.  ed.  484,  488,  24  Sup.  Ct.  was  acquired  in  view  of  a  certain  inter  pre- 
Rep.  325;  Cohen  v.  Virginia,  6  Wheat.  264,  tation  or  construction  of  some  statute 
379,  5  L.  ed.  257,  285;  Little  Yoric  Gold-  (which  might  or  might  not  govern),  and 
Washing  &  Water  Co.  ▼.  Keyes,  96  U.  S.  say  in  effect  that  if  such  construction  be 
199,  24  L  ed.  656;  Osbom  v.  Bank  of  sustained  the  right  is  enforceable,  and,  if 
United  States,  9  Wheat.  739,  824,  825,  6  it  be  rejected,  it  is  unenforceable;  because 
L.  ed.  204,  224,  225;  Shulthis  v.  MoDougal,  such  statements  are  mere  argument  and 
225  U.  S.  561,  56  L.  ed.  1205,  32  Sup.  Ct.  have  no  proper  place  in  the  bill. 
Rep.  704;  Starin  ▼.  New  York,  115  U.  S.  Shulthis  v.  McDougal,  225  U.  6.  561,  56 
248,  257,  29  L.  ed.  388,  390,  6  Sup.  Ct.  L.  ed.  1205,  32  Sup.  Ct.  Rep.  704;  Fletcher, 
Rep.  28;  Taylor  v.  Anderson,  234  U.  S.  74,  Eq.  PI.  136. 

58  L.  ed.  1218,  34  Sup.  Ct.  Rep.  724;  Ten-  The  mere  fact  that  the  plaintiffs  ques- 
nessee  v.  Davis,  100  U.  S.  257,  25  L.  ed.  tion  their  own  title  will  not  confer  juris- 
648;  Wilson  Cypreas  Go.  ▼.  Del  Pozo  y  diction  in  equity,  much  less  raise  a  Fed- 
Marcos,  236  U.  S.  635,  59  L.  ed.  758,  35  eral  question.  The  plaintiff,  in  equity  cases 
Sup.  Ct.  Rep.  446.  as  in  other  cases,  if  he  seeks  to  recover  pos- 

MesBrs.  George  8.  RamM,.  Edg»  A.  "f '"f'  "P;'"  »,  ^?^^  rig".  ««»t  rely  upon 

De  Menle..  and  Malcolm  B.  RoMer  sub-  *»»•  •t'«>g««  of  h,.  »wn  title. 

mitted  the   cau«»   for   appellee..     Messrs  _.  ^"l^fj  "^^"rL    Hk       ' 

Edward  H.  Chandler  and  Sol  H.  Eauffmaa  *^-'  3'»..3*  ^-  ."!?•*"'• 
were  on  the  brief-  •^'**'*  *"  "^  J"'>«l»«t">»>  *»  ^^^^T  '"'"'■e- 

This  case  is  gov'emed  by  the  case  of  Tay-  Y  »"  ,^'^*  ."^  *•"»  doubtful  state  of  a 

lor  V.  Anderso^  234  U.  8.  74,  68  L.  ll.  !'8?V  *•     '    <>t^*'    K""""!*    «'    equ.table 

1218,  34  Sup.  a.  Rep.  724.  jurisdiction  must  be  shown. 

T«  ;♦«  ^r^ ^    *i,--  •         u'11  A  Jones  V.  Jones,  3  Meriv.   161;    Hipp  v. 

In  its  essence,  this  is  a  a  bill  to  recover  „  . .      m  ti        o%«i    ic  t      j    onn     f> 

•^<.«».o:^.    ^#   \L^A       T*      11  Av  A    Au  Babm,  19  How.  271,  15  L.  ed.  633;   Bacon 

possession    of   land.     It   alleges   that   the  ,  a    %#  i     ^   n    ^oo    <>    t        ^m^a 

^i.;»A:4r«  ««-  av..  i.  u  —     *  -i       j  ^'   Jones,   4    MyL   &   C.   433,   3   Jur.   904; 

plaintiffs  are  the  holders  of  an  oil  and  gas  r       ui-         t  /-.-a     a  t  ^  noo    T^ 

•»;.{.«  1^--^  #«^^  Av^  4       z      1  M  Laughlm  v.  Lamasco  City,  6  Ind.  223;  Dan. 

mimng  lease  from  the  fee-simple  owners  of  ^,    ^.,    .         .   ou-i    a-,  \^      m   «.  •»     *r^o 

♦i.«  iJLa    -:«: Au^    1--  *•»    Au^  ^    i     •  Ch.  6th  Am.  ed.  361;  21  Enc.  PI.  k  Pr.  713; 

the  land,  giving  the  plaintiffs  the  exclusive  y^  ^jie   Ea    PL  29 

right  of  possession  for  oil  and  gas  mining       ^        a*        a  •         *        i 

•™,wv««-     4U..A  Av  J      •     J     »        V       In  actions  to  recover  possession  of  real 

purposes;   that  they  are  deprived  of  such  *.     -a.  x.      i        u        av        i    av  a  xu 

tLr^L.«:^»  u«  Au^  ir-Aui        f\'i  n  property  it  has  long  been  the  rule  that  the 

possession  by  the  Kathleen  Oil  Company,  '^i,';.      j.     £  ^  -jav      x^j 

»k;»i,  :«  ;«  ^^«-^  -:^^  -j  •-  -a  i*  u  •  only  ultimate  facts  required  to  be  stated 
which  IS  m  possession  and  is  itself  boring  /^vxi,     j       'a*         #ai.     i     j       /^v 

#«•  »^A  ^.^^f,-:..^  ^:i A Ai.    1     J  are:    (1)  the  description  of  the  lands;   (2) 

for  and  producing  oil  and  gas  on  the  land.  ,,       Laa  a  ^au**       I 

Tu.'o  o„;a  Jo  ♦i.^-^*^-..  :«  :*1      a  •—  i  the  extent  or  nature  of  the  interest  as- 

This  suit  IS,  therefore,  m  its  nature,  simply         .    ,  j     /«»    au  a    ai.      j  r     i     x    • 

an  equitable  action  of  ejectment;  a  substi-  ^^.^^f',^.*"^    ^^>    *^*    *^*    defendant    is 

tute  for  ejectment,  brou^-ht  in  equity  be-  withholdmg  possession. 

cause,  for  technical  reasons,  ejectment  wUl       ^J^"^^  ]'  Tj'^^T^p'  ]1  J^^^f J^^Vf  ^ 

not  lie  at  the  suit  of  the  lessee  to  recover  ^-  ^cott   14  How  282   14  L.  ed   422;  John- 

possession  under  an  oil  and  gas  lease,  on  ^^"^  T'  ^^^^*  «^,  ^^\  ^'  !i/''x;..^  *' 
the  ground  (whether  sound  or  not)  that  ^"«*'"  ^'  Schluyter,  7  Hun,  275;  Hihn  v. 
the  right  of  a  lessee  under  such  lea«e  is  an  Mangenberg,  89  Cal.  268,  26  Pac.  968;  VVal- 
incorporeal  hereditament  and  such  a  right  ^^^  ^'  Lockwood,  23  Barb.  228,  4  Abb.  Pr. 
cannot  be  enforced  by  ejectment.  In  other  309;  People  v.  New  York,  28  Barb.  240; 
words,  an  officer  charged  with  a  writ  of  pos-  Sanders  v.  Leavy,  16  How.  Pr.  308;  En- 
session  is  supposed  to  be  unable  to  put  the  wgn  v.  Sherman,  14  How.  Pr.  439;  Coryell 
lessee  in  possession  on  account  of  the  in-  v.  Cain,  16  Cal.  567,  5  Mor.  Min.  Rep.  226; 
corporeal  nature  of  the  right  or  estate.  Garrison  v.  Sampson,  15  Cal.  93. 

Kolachny  v.  Galbreath,  26  Okla.  772,  38       An  allegation  that  the   plaintiff  is  the 

L.R.A.(N.S.)   451,  110  Pac.  902.  owner  at  certain  real  or  personal  property 

This  suit,  therefore,  differs  from  the  legal  is  a  statement  of  an  ultimate  fact,  and 

action  of  ejectment  only  in  the  nature  of  sufficient  to  aver  title, 
the  relief  required.    The  relief  required  is       Payne  v.  Treadwell,  16  CaL  242;  Garwood 

to  enjoin  the  alleged  trespasser,  and  pre-  v.  Hastings,  38  Cal.  216;   Gage  v.  Kauf- 

vent  it  from  interfering  with  the  lessees  man,  133  U.  S.  471,  33  L.  ed.  725,  10  Sup 

in  the  prosecution  of  their  rights  under  the  Ct.  Rep.  406;  Ely  v.  New  Mexico  &  A.  R, 
lease.  Nothing  more  is  required,  therefore,  ^  Co.  129  U.  8.  Sl^l,  32  L.  ed.  688,  9  Sup. 
•0  I/,  ed.  1168 


602,  fiS3                   SUPREME  COURT  OF  THB  UNITED  STATES.  Oct.  Tnn, 

Ct.  Rep.  293;   Johnson  v.  Vance,  S0  Cal.  imn  invaiion  of  rigbt  would  be  alt  the  more 

ISS,  24  Pac.  663.  enjoinable. 

The   rale   in   equity   is   the   aame.  Wheelock   v.   Noonan,   108  N.   Y.   179,  2 

Wiggm  T.  New  York,  9  Paige,  16 1  Uugh- 1  Am.  St.  Rep.  406,  15  N.  E.  67;  Griffith  t. 

lin  T.  Lunaaco  Citj,  6  lod.  223;   Dan.  Cb-  I  Hilliard,  64  Vt.  643,  26  Att.  427;  Slater  >. 

6th  Am.  «d.  1896,  362.  Cunn,    170   Maai.    609,    41    L.ILA.   2es,   40 

In  a  suit   for  injunction   to  restrain  an  S.   B.   1017;    D   Enc.   ForniB,   868  i    Indian- 

injujy  to  land  it  is  not  necessary  that  the  ipolia  Natural  Gat  Co.  v.  Kibbey,  135  Ind. 

petition   should   aver   (ram   whom   or   how  3S7,  35  N.  E.  392,  17  Mot.  Min.  Bep.  611. 

the  title  was  obtained.    This  is  a  matter  of  No  admission  of  parties  can  change  the 

evidence.  law   or   ^ve   jurisdiction   to   a   court   in  s 

Planet  Property   &   Financial   Co.   t.   St.  cause  of  which  it  hath  no  jurisdiction. 

louU,  O.  H.  4.  a  R.  Co.  116  Mo.'fllS,  22  Hipp   v.   Babin,   19   How.   271,   15  L.   ed. 

S.  W.  616.  833;   Welby  v.  Rutland.  2  Bro.  P.  C.  3B. 

If  plaintiffs  claim  the  exclusive  right  to  Assuming  that  it  is  proper  for  plaintiffs 

dig  tor  oil  and  gas,  they  need  only  recite  to  set  up  defendant's  claim,  it  would  onlj 

that  they   are  the  lessees  of  a  certaiD  oil  be   necessary   in   this   case   to   allege   thst, 

and   gas    lease,   executed   to   them    by   the  subsequent   to   the   execution   of   plaintiff's 

owners  of  the  fee,  and  then  set  forth  the  lease,  the  tee  owners  executed  another  leara 

lease   or   its   legal   elTect.     They   need   not  on  the  same  land  to  the  Kathleen  Oil  Com- 

recite   any   preaumed   defect   in   their   title  pany.     That  certainly  would   give   rise  to 

and  negative  it,  but  that   is   properly   for  no  Federal  question, 

the  defendants,  U  the  latter  so  desire.  Shulthie  v.  McDougal,  225  V.  S.  561,  56 

Payne  t.  Treadwell,  16  Cat.  242;  Gage  L.  ed.  1206,  32  Sup.  Ct.  Rep.  704. 

T.  Kauffman,  133  U.  S.  471,  33  L.  ed.  726,  The  role  that  plaintiffs  cannot  anticipate 

10  Sup.  Ct.  Rep.  406;  Chriaty  v.  Scott,  14  defendant's   defense    applies    to   equity   ai 

How.  282,  14  L.  ed.  422.  well  as  law  cases. 

The  reason,  according  to  Serjeant  Tennessee  v.  Union  ft  Plantera'  Bank,  162 
Stephens,  is  that  if  it  were  requisite  to  U.  S.  464,  38  L.  ed.  611,  14  Sup.  Ct.  Rep- 
show  from  whom  the  party  derived  his  title,  654;  Third  Street  ft  Subnrban  R.  Co.  v. 
it  might  b«  required  on  the  same  principle  Lewis,  173  U.  S.  457,  43  L.  ed.  766,  19 
to  show  from  whom  that  peroon  derived  his,  Sup.  Ct.  Rep.  461 ;  Boston  ft  M.  ConsoL 
and  so  ad  mfinitum.  Copper  ft  S.  Min.  Co.  v.  Montana  Ore  Pur- 

SUpbens,  PI.  g  176.  chasing  Co.   188  U.   S.  632,  47   L.   ed.  628. 

But   the  better  reason   is  that  a   simple  23   Sup.   Ct.  Rep.  434;   Louisville   ft  N.  R. 

allegation  of  ownership  is  the  statement  of  Co.   v.   Mottley,   211   U.   S.   149,   63   L.  ed. 

an  ultimate  fact,  and  the  derivation  of  the  126,  29  Sup.  Ct  Rep.  42;   Shulthia  v.  Me- 

title,  if  maUrial,  Is  a  matter  ot  evidence.  Dougal,  226  U.  S.  661,  66  L.  ed.  1205,  3S 

Payne  v.  Treadwell,  supra.  Sup-  Ct.  Rep.  704;   Denver  v.  New  York 

Suita  to  remove  donda  are  brought  by  Tniat  Co.  220  U.  f.  123,  133-135,  67  L.  ed. 

persona  in  possession.  1101,  1120,  1121,  33  Sup.  Ct.  Rep.  667. 

Boston   ft   M.   Consol.   Copper  ft   S.  Uin. 

Co.    r.   Montana    Ore    Purchasing   Co.    188  Mr.   Chief   Justice   TKlilte   delivered  the 

U.  S.  632,  47  L.  ed.  626,  23  Sup.  Ct.  Rep.  opinion  of  the  court: 

434;  Orton  v.  Smith,  18  How.  263,  15  L.  ed.  This  direct  appeal  ia  prosecuted  to  reverse 

393;    Whitehead    v.    Shattuck,    138    U.    S.  the  decree  of   the  court   below,   diamiasiBg 

146,  34  L.   ed.  873,  11   Sup.  Ct.  Rep.  276;  the  suit  on  the  ground  that  the  bill  alleged 

Sharon  v.  Tucker,  144  U.  3.  533,  36  L.  ed.  no  cause  of  action  within  the  jurisdiction 

632,  12  Sup.  Ct.  Rep.  720.  o'  the  court  aa  a  Federal  court. 

Allegations  in  actions  of  ejectment  that  Briefly  summarized,  the  hill  all^^  (bat 

the    defendant    Is    unlawfully    withholding  »"»    ^^'^^    Liisie   Brown    received    from   the 

posaeasion  from  the  plaintiff  are  universal-  ""'*^  f^*f^.  '  P*,**^*  ^  **^"'"  t"**!  <*^ 

ly  treated  in  modem  practice  as  sufBeient,  f'^  "*■"*  ""  **'''*^°*  "^'^Jf'?'^ 

.-^  — >■-  „^  -,  I-  ths.  »-..t     "PI,.     _■  allotment  aa  a  member  ot  the  Creek  Tribe 

ana  wny  not   so  in  tnu  easel     The   pnn-  ....           .i   ■     i      n  »   ,      ■..      i.    ,„ia 

.-■  ii.>    ra  a,                                          '^  ot  Indians;  that  she  died  in  March,  1B12, 


leaving    surviving    as    her    sole    beirs   her 


Payne  v.  Treadwell,  supra.  husband,  Josiah  Brown,  and  tour  minor  dul- 

AppellanU    counsel   seem   to   argue   that  j„„^  .„  „(  „hom   were  mads  defendants. 

the  continuing  nature  ot  the  trespasa  must  jt  »»,  ^Ueged  that  Brown,  the  father,  was 

be  ahown  by  a  lease  or  by  some  definite  appointed  guardian   of   the   children,  and 

claim  ot  right  on  the  part  of  the  defend-  that    in    April,    1912,    he    and    the    cbU- 

anta.     But  why  I     Could  not  the  trespaae  dren,    aa    owners    in    fee    ot    the   land  is 

be  ot  a  continning  nature  without  any  claim  question,    made    an    oil    and    gas    mla- 

of  right  whatever  by  the  defendants!  Such  ing  lease  to  the  plaintiffs,  which  was  tt> 

11«4  141  U.S. 


1015. 


LANCASTER  v.  KATULE£N  OIL  CO. 


653-555 


corded  April  18th,  1912;  that,  notwithstand- 
ing this  k-ase,  about  two  months  later,  that 
is,  June  2d,  1912,  Brown,  on  his  own  be- 
half and  as  guardian,  made  an  oil  and  gas 
mining  lease  covering  the  identical  land,  to 
the  Katlileen  Oil  Company,  also  made  a  de- 
fendant, which  lease  was  approved  by  the 
Secretary  of  the  Interior  and  was  duly  re- 
corded. It  was  alleged  that  plaintiffs  en- 
tered upon  the  land  under  their  lease,  pre- 
pared to  drill  for  oil,  but,  learning  of  the 
subsequent  lease  to  the  Kathleen  Oil  Com- 
pany, withdrew  and  made  an  application  to 
the  Secretary  of  the  Interior  to  cancel  his 
approval  of  that  lease,  which  was  denied. 
It  was  averred  that  the  Kathleen  Oil  Com- 
pany had  entered  into  its  lease  with  full 
knowledge  of  the  prior  lease  to  the  plain- 
tiffs, but  that  it  had  nevertheless  gone  into 
possession  and  was  operating  under  its 
lease,  and  was  producing  and  selling  oil  and 
gas.  Tlie  bill  then  alleged  that  the  plain- 
tiffs' lease,  although  not  approved  by  the  Sec- 
retary, was  valid,  and  that  the  subsequent 
lease  to  the  defendant  company,  which  was 
approved  by  the  Secretary  of  the  Interior, 
was  void  because,  by  the  act  of  Congress 
of  May  27,  1908  (35  Stat,  at  L.  312,  chap. 
199),  the  land  of  Lizzie  Brown  descended 
to  her  heirs  free  from  any  restriction 
against  leasing  the  same  for  oil  and  gas 
mining  purposes,  and  because,  if  that  act 
did  impose  restrictions  as  to  such  a  lease,  it 
was  void  for  repugnancy  to  the  Constitu- 
tion of  the  United  States.  The  prayer  was 
tliat  the  defendant  company  be  enjoined 
from  entering  on  the  land  and  from  [554] 
continuing  to  operate  under  its  lease,  that 
all  the  defendants  be  restrained  from  inter- 
fering in  any  manner  with  the  plaintiffs  in 
conducting  operations  under  their  lease,  and 
from  asserting  or  claiming  any  right  to  the 
oil  and  gas  deposits  under  the  land,  or  the 
right  to  mine  and  remove  the  same,  and 
that  the  defendant  company  account  to  the 
plaintiffs  for  the  gas  and  oil  which  it  had  re- 
moved. 

The  defendants  moved  to  dismiss  on  the 
ground  that  the  court  was  without  juris- 
diction as  a  Federal  court  to  entertain  the 
cause.  The  motion  was  granted,  and  a  de- 
cree of  dismissal  entered,  and,  for  the  pur* 
pose  of  this  direct  appeal,  the  court  certified 
under  the  statute  that  the  dismissal  had 
been  ordered  because  "the  essential  and  ap- 
propriate allegations  of  the  cause  of  action 
asserted  in  said  bill  of  complaint  did  not 
disclose  a  case  arising  under  the  Constitu- 
tion or  a  law  or  treaty  of  the  United 
States." 

As  it  is  apparent  that  the  court  below 
erred  if  the  allegations  concerning  the  va- 
lidity of  the  lease  of  the  plaintiffs,  and  the 
invalidity  of  that  of  the  defendant  company, 
•0  li.  ed. 


were  material  to  the  cause  of  action  stated 
In  the  bill,  we  come  at  once  to  that  ques- 
tion. In  support  of  the  proposition  that 
such  allegations  were  not  material,  it  is 
argued  that  the  suit  was  the  equivalent  of 
an  action  at  law  in  ejectment  to  recover 
possession  of  the  leased  premises,  but  was 
brought  in  equity  because,  under  the  law  of 
Oklahoma,  a  lessee  of  an  oil  and  gas  min- 
ing lease  under  circumstances  here  disclosed 
had  no  right  to  sue  in  ejectment.  Kolachny 
V.  Galbreath,  26  Okla.  772,  38  L.R.A.(N.S.) 
451,  110  Pac.  902.  Further,  it  is  said  that 
as,  in  a  suit  in  ejectment,  it  is  only  neces- 
sary to  allege  a  right  of  possession  by  the 
plaintiff,  and  a  wrongful  possession  by  tlie 
defendant,  averments  by  anticipation  of  as- 
sumed defects  in  the  plaintiffs'  title,  to  be  al- 
leged by  the  defendant,  and  of  the  causes 
which  would  be  relied  upon  to  establish 
want  of  title  in  the  defendant,  are  not  rele- 
vant or  essential,  and  are  to  be  disregarded 
in  determining  [555]  the  question  of  the 
jurisdiction  of  the  court  as  a  Federal  court. 
This,  it  is  said  was  expressly  decided  in 
Taylor  v.  Anderson,  234  U.  S.  74,  58  L.  ed. 
1218,  34  Sup.  Ct.  Rep.  724,  and  that  case 
is  relied  upon  as  conclusive  of  this  con- 
troversy. 

But  without  questioning  in  the  slightest 
degree  the  doctrine  expounded  or  the  con- 
clusion reached  in  the  Taylor  Case,  we  think 
it  oan  here  have  no  application,  since  we  are 
of  the  opinion  that  the  assumption  that  the 
cause  of  action  alleged  in  the  bill  under 
consideration  is  the  equivalent  of  a  suit 
in  ejectment  is  wholly  without  foundation. 
We  say  this  because  the  prayer  of  the  bill 
makes  it  clear  that  the  object  of  the  suit 
was  not  only  the  recovery  of  possession,  but 
also  an  injunction  forever  restraining  the 
defendant  company  from  asserting  any 
rights  under  its  lease,  and  from  interfer- 
ing with  the  rights  of  the  plaintiffs  under 
their'  lease.  Such  relief,  it  is  apparent, 
could  be  granted  only  after  determining  the 
rights  of  the  parties  under  their  respective 
leases,  which  would  require  a  construction 
of  the  act  of  Congress  referred  to  as  well 
as  a  decision  concerning  the  authority  of 
the  Secretary  of  the  Interior  in  approving 
the  defendant  company's  lease,  and  the  ef- 
fect to  be  given  to  such  approval. 

It  is  said,  however,  if  the  bill  be  thus 
construed,  the  suit  is  in  substance  one  to 
quiet  title,  and,  under  the  well-settled  rule, 
such  a  suit  can  be  brought  only  by  one  in 
possession.  Whitehead  v.  Shattuck,  138  U. 
S.  146,  34  L.  ed.  873,  11  Sup.  Ct.  Rep.  276; 
Boston  &  M.  Consol.  Copper  &  S.  Min.  Co. 
v.  Montana  Ore  Purchasing  Co.  188  U  S. 
632,  47  L.  ed.  626,  23  Sup.  Ct.  Rep.  434. 
But  this  contention  overlooks  the  reason  up- 
on which  the  role  ii  baaed,  as  pointed  out 

11«5 


665,566 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tum, 


io  the  cases  relied  upon,  which  is  that  one  out 
of  possession  has  an  adequate  remedy  at 
law  by  a  suit  In  ejectment.  As  it  is  con- 
ceded that  the  legal  remedy  was  not  here 
available,  and  that  there  was  hence  juris- 
diction in  a  court  of  equity  to  determine  the 
right  of  possession,  it  is  clear  that  the  rule 
has  no  application,  and  that  the  court  had 
equitable  jurisdiction  to  determine  all  the 
issues  presented  by  the  bill. 

[556]  That  the  bill,  as  thus  construed, 
states  a  cause  of  action  within  the  juris- 
diction of  the  court  below  as  a  Federal 
eourt,  is,  in  substance,  conceded,  and  is 
demonstrated  by  the  ruling  in  Wilson 
Pypress  Co.  ▼.  Del  Pozo  y  Marcos,  236  U. 
S.  635,  643,  644,  50  L.  ed.  758,  766,  767, 
85  Sup.  Ct.  Rep.  446. 

It  follows  from  what  we  have  said  that 
the  court  below  erred  in  dismissing  the 
cause  for  want  of  jurisdiction  as  a  Federal 
court,  and  its  decree  must  be  reversed,  and 
the  cause  remanded  for  further  proceedings 
In  conformity  with  this  opinion. 

And  it  is  so  ordered. 


PEOPLE  OF  THE  STATE  OF  NEW  YORK 
ON  THE  RELATION  OF  WALTER  S. 
KENNEDY,  as  Next  Friend  of  Fayette 
Kennedy,  Warren  Kennedy,  and  Willis 
White,  Jr.,  Plffs.  in  Err., 

v. 

FREDERICK  W.  BECKER,  as  Sheriff  of 
Erie  County,  New  York. 

(See  S.  C.  Reporter's  ed.  556-^64.) 

Indians  —  reservation  of  flshin^  riffhta 
in  treaty  —  rigjbt  to  Tiolate  state 
same  laws. 

The  reservation  to  the  Indians  of  the 
right  to  fish  on  the  ceded  lands,  which  is 
contained  in  the  treaty  of  September  15, 
1797  (7  SUt.  at  L.  601),  by  which  the 
Seneca  Indians  ceded  to  Robert  Morris  cer- 
tain lands  in  the  state  of  New  York,  does 
not  give  tribal  Seneca  Indians,  residing  on 
an  Indian  reservation  in  charge  of  an  In- 
dian agent,  the  right  to  take  fish  from  the 
waters  on  the  ceded  lands  outside  the  reser- 
vation in  a  manner  and  at  a  time  prohibited 
by  the  game  laws  of  the  state. 
[For  other  cases,  see  Fisheries,  III.,  In  Digest 
Sup.  Ct.   1808.] 

[No,  666.] 

Argued  April   7,  1916.     Decided  June  12, 

1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  New  York  in  and  for  the  Coun- 
ty of  Erie,  in  that  state,  to  review  a  judg- 
ment entered  pursuant  to  the  mandate  of 
the  Court  of  Appeals  of  that  state,  which 
affirmed  a  judgment  of  the  Appellate  Divi- 


sion  of  the  Supreme  Court,  Fourth  Depart- 
ment, which  had  reversed  an  order  of  a 
Special  Term  of  the  Supreme  Court,  dis- 
charging, on  habeas  corpus,  certain  Indians 
charged  with  violating  the  game  laws  of 
the  state.    Affirmed,  l 

See  same  case  below  in  appellate  division, 
165  App.  Div.  881,  151  N.  Y.  Supp.  138; 
in  eourt  of  appeals,  215  N.  Y.  42,  109  N. 
E.  116. 

The  facts  are  stated  in  the  opinion. 

Mr.  George  P.  Decker  argued  the  caut^ 
and  filed  a  brief  for  plaintiff's  in  error: 

Defendant  in  error  here  fails,  unless  he 
convinces  this  court  that  by  the  treaty  of 
Big  Tree  it  was  the  intent  and  understand- 
ing of  the  parties  that  a  tribal  Seneca,  in 
leaving  his  residence  reserves  to  fish  at  the 
looua  in  quo,  would  be  leaving  the  fron- 
tiers of  his  tribe,  and  be  subjecting  himself 
in  fishing  to  the  jurisdiction  of  New  York. 
If  that  were  the  understanding,  then  his 
right  there  would  be  one  falling,  like  that 
of  a  white  man,  under  the  legislative  power 
of  New  York  to  regulate  according  to  the 
will  of  the  state  legislature.  If  the  state 
had  that  right,  it  is  immaterial  here  to 
know  whether  the  right  fell  imder  the  head 
of  police  powers,  as  publicists  classify  gov- 
ernmental powers,  or  fell  under  some  other 
heading.  The  Seneca  in  any  case,  then, 
would  have  no  advantage  over  the  unnatur- 
alized Russian  who  possessed  private  lands 
in  New  York,  with  the  right  to  fish  upon 
them,  but  who  discovered,  e.  g,,  that  New 
Voric  had  prohibited  the  taking  of  trout 
for  a  term  of  fifty  years.  Such  would  be 
an  impotent  outcome  of  the  Big  Tree  treaty. 

United  SUtes  ▼.  Winans,  198  U.  S.  371, 
49  L.  ed.  1089,  25  Sup.  Ct.  Rep.  662. 

Changed  conditions  afford  no  foundation 
for  eactension  of  state  power  cutting  down 
tribal  rights  and  invading  Federal  juris- 
diction. 

The  Kansas  Indians  (Blue  Jacket  v. 
Johnson  County)  5  Wall.  737,  18  L.  ed. 
667. 

The  loouB  in  quo,  in  consequence  of  the 
treaty  of  Big  Tree,  remained  after  1797  an 
Indian  reservation  for  the  special  and  lim- 
ited purposes  intended,  and  no  less,  in  legal 
contemplation,  to  the  extent  of  those  pur- 
poses, than  a  residence  reserve  upon  which 
no  white  man  might  lawfully  set  foot  for 
any  purpose  under  warrant  of  mere  stats 
authority.  Hunting  grounds  of  Indians 
are  to  be  r^^rded  as  in  possession  of  the 
tribe. 


1  Leave  granted  to  present  a  petition  for 
rehearing  herein  withm  sixty  days  if  coun- 
sel are  so  advised,  on  motion  of  Solicitor 
General  Davis  for  the  United  States. 

June  12,  1916. 

141  U.  S. 


1016. 


NEW  YORK  KZ  BEL.  KENNEDY  tk.  BECKER. 


Mitchel  V.  United  tSates,  0  Pet.  745,  9 
L.  ed.  295. 

Treaties  between  a  white  man's  govern- 
ment and  an  Indian  tribe  are  to  be  read  by 
white  men's  courts  favorably  to  the  In- 
dians, or  as  the  Indians  had  the  right  to 
understand  them. 

Worcester  v.  Georgia,  6  Pet.  51 5»  8  L.  ed. 
483;  Jones  v.  Meehan,  175  U.  S.  1,  44  L.  ed. 
49,  20  Sup.  Ct.  Rep.  1;  Northern  P.  R.  Co. 
V.  United  States,  227  U.  S.  355,  57  L.  ed. 
544,  33  Sup.  Ct.  Rep.  368. 

Federal  treaties  (and  the  treaty  of  Big 
Tree  was  one)  are,  as  compared  with  state 
jurisdiction  and  legislation,  the  supreme 
law  of  the  land. 

The  New  York  Indians  (Fellows  ▼.  Den- 
niston)   5  Wall.  768,  18  L.  ed.  711. 

It  was  the  intent  of  the  treaty  of  Big 
Tree  that  these  rights,  then  possessed, 
should  not  pass  away  from  the  Senecas  un- 
der the  ceding  clause. 

United  States  ▼.  Winans,  198  U.  S.  871, 
381,  49  L.  ed.  1089,  1092,  25  Sup.  Ct.  Rep. 
662. 

If  the  Senecas  were  not  to  be  immune 
from  state  control  in  the  enjoyment  of  fish- 
ery and  chase  <m  these  lands,  it  must  be 
assumed  that  they  would  have  refused  to 
cede  to  Morris. 

Dick  V.  United  SUtes,  208  U.  a  340,  62 
L.  ed.  520,  28  Sup.  Ct.  Rep.  399. 

Trci  y  engagements  with  Indians  saying 
that  they  may  have  certain  rights,  either 
exclusive  or  in  conunon  with  white  men,  are 
to  be  protected. 

Holden  v.  Joy,  17  Wall.  244,  21  L.  ed. 
534;  Re  Blackbird,  109  Fed.  139;  United 
States  V.  Winans,  73  Fed.  72;  Seneca  Na- 
tion V.  Appelby,  196  N.  Y.  323,  89  N.  K 
835. 

The  fact  that  Indians,  In  selling  tribal 
lands,  reserve  possessory  rights  only  Um- 
porarily,  does  not  operate  to  subject  them 
to  state  jurisdiction  in  the  enjoyment  of 
those  rights  before  Congress  shall  take  ap- 
propriate action  putting  an  end  to  its  pro- 
tectorship. 

Dick  V.  United  SUtes,  208  U.  8.  840,  52 
L.  ed.  520,  28  Sup.  Ct.  Rep.  399. 

The  treaty  of  Big  Tree,  having  been  nego- 
tiated with  the  United  States,  operated  as 
to  the  reservation  of  the  rights  retained, 
with  all  the  force  of  an  act  of  Congress, 
for  it  was  expressly  ratified  by  the  Senate 
and  proclaimed  by  the  President. 

United  States  v.  Pelican,  232  U.  S.  442, 
58  L.  ed.  676,  34  Sup.  (^.  Rep.  396. 

This  treaty  did  not  operate  to  reserve  to 
the  Senecas  only  a  jus  privatum  in  the 
land,  but  to  retain  a  tribal  right  in  order 
to  secure  the  private  enjoyment  of  it  by 
members  of  the  tribe. 
•0  li.  ed. 


Re  Mattson,  69  Fed.  535;  McCready  t. 
Virginia,  94  U.  S.  391,  24  L.  ed.  248. 

The  only  control  by  white  men  to  which 
tribal  Indians  may  be  subjected  is  that 
which  may  be  exercised  by  Congress. 

United  States  v.  Kagama,  118  U.  S.  384, 
30  L.  ed.  231,  6  Sup.  Ct.  Rep.  1109;  United 
States  V.  Sandoval,  231  U.  S.  28,  58  L.  ed. 
107,  34  Sup.  Ct  Rep.  1. 

It  was  the  intent  of  the  Federal  Consti- 
tution that  all  shackles  previously  existing 
on  Federal  departments  in  right  to  exclu- 
sive control  over  Indian  affairs  should  be 
removed. 

Worcester  t.  Georgia,  6  Pet.  515,  8  L.  ed. 
488. 

No  state  may  tax  the  lands  of  Indian 
reservations,  and  this  rule  was  laid  down 
by  this  court  in  the  absence  of  any  affirma- 
tive act  of  Congress  denying  such  power  to 
states. 

The  New  York  Indians  (Fellows  v.  Den- 
niston)  5 'Wall.  761,  18  L.  ed.  708;  The 
Kansas  Indians  (Blue  Jacket  v.  Johnson 
County)  5  Wall.  737,  18  L.  ed.  667. 

As  to  crimes.  Congress  has  the  power  to 
retain  exclusive  jurisdiction  over  Indian 
lands  as  against  a  state,  even  after  those 
lands  have  been  allotted  to  individual  In- 
dians, and  the  Indians  themselves  have  be- 
come citizens  of  the  United  States. 

United  States  v.  Pelican,  232  U.  S.  451, 
58  L.  ed.  680,  34  Sup.  Ct.  Rep.  396. 

It  follows  that  if  Congress  may,  in  case 
of  allotted  lands  and  the  dissolution  of 
tribes  by  affirmative  legislation,  retain  ex- 
clusive control  over  persons  of  Indian 
blood,  so,  in  the  absence  of  affirmative  legis- 
lation putting  Indians  still  tribal  under 
state  jurisdiction,  they  retain  their  status 
as  tribal  Indians,  and  their  tribal  rights, 
as  against  state  control. 

United  States  v.  Winans,  198  U.  S.  371, 
49  L.  ed.  1089,  25  Sup.  Ct.  Rep.  662. 

The  better  authorities  in  the  New  York 
courts  uphold  our  contention. 

Bishop  V.  Barton,  2  Hun,  436,  affirmed  in 
64  N.  Y.  637 ;  People  ex  rel.  Cusick  v.  Daly, 
212  N.  Y.  183,  105  N.  E.  1048,  Ann.  Cas. 
1915D,  867;  Hastings  t.  Farmer,  4  N.  Y. 
293;  Jackson  ex  dem.  Klock  v.  Hudson,  3 
Johns.  375,  3  Am.  Dec.  500;  Buffalo,  R.  & 
P.  R.  Co.  V.  Lavery,  75  Hun,  396,  27  N.  Y. 
Supp.  443. 

The  better  authorities  of  other  states 
concur  with  the  above  cases. 

State  V.  Campbell,  53  Minn.  354,  21 
L.ILA.  169,  55  N.  W.  553;  Re  Blackbird, 
109  Fed.  139;  United  States  ex  rel.  Davis 
V.  Shanks,  15  Minn.  369,  Oil.  802;  Earl  v. 
Godl^  (Earl  t.  Wilson)  42  Minn.  361,  7 
L.RJL  126,  18  Am.  Bt.  Rep.  517,  44  N.  W. 
264;  Kobogam  ▼•  JmIuoh  Iron  Co.  76  Mich. 

11«7 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  Tnv, 


«B,  43  N.  W.  602;   I*  Riviere  t.  I*  Ri»- 
lew,  97  Mo.  80.  10  8.  W.  8«. 

The  Foder*!  authoritiei  base  recently 
brought  auit  to  reiniUte  the  Indians  wlio 
w«re  ousted  by  the  state  courts,  in  the  case 
of  BoyUn  t.  George,  133  App.  Div.  514,  117 
N.  Y.  Supp.  573.  It  would  seem  on  its  face 
inejtplicable  that  the  invaaion  of  tribal 
rigbta  involved  in  the  above  cases  coald  have 
accumulated.  The  explanation  may  be  tound. 
In  many  inaUnces  these  Indians  have  asked 
tlie  sUite  courts  to  pass  upon  the  question 
•ubmitted.  Almost  always  in  such  eases  the 
Indiana,  defeated  in  the  first  insUnce,  have 
had  no  means  of  their  own  adequate  to  ap- 
peal. They  have  commonly  neglected  to  ask 
the  Department  of  Justice  to  sue  or  defend 
for  them.  The  right,  power,  and  duty  of 
the  Federal  departmenta  to  protect  Indian 
rights  is  thoroughly  eatablislied  in  the  fol- 
lowing decisions  of  this  court: 

United  States  v.  Ricltert,  188  U.  8.  432, 
47  L.  *d.  632,  23  Sup.  Ct  Rep.  178;  Heck 
man  v.  United  SUtes,  224  U.  S.  413,  SB  L 
ed.  820,  32  Sup.  Ct.  Rep.  424;  United  SUtei 
V.  Boyd,  88  Fed.  o77;  United  States  v 
Winans.  73  Fed.  72;  United  SUtes  v.  Gray 
118  C.  C.  A.  529,  201  Fed.  281;  Unitec 
States  ¥.  Maokey,  —  C.  C.  A.  — ,  21$  Fed 
120. 

The  rule  aa  to  the  field  open  to  stafc 
jurisdiction  in  matters  of  interstate  com 
merce  does  not  apply  as  to  commerce  witl 
Indian  tribes. 

Cherokee  Nation  ».  Georgia,  6  Pel.  1,  18 
8  L.  ed.  25,  31;  Worcester  v.  Georgia,  ( 
Pet.  515,  681,  8  L.  ed.  483,  601;  Unite. 
SUtes  V.  Kagama,  118  U.  S.  38*.  30  L.  ed 
231,  9  Sup.  Ct.  Rep.  HOB;  The  Kansa 
Indians  (Blue  Jacket  v.  Johnson  County 
5  Wall.  765,  18  L.  ed.  872;  Re  Heff,  18 
U.  S.  608,  49  L.  ed.  856,  25  Sup.  Ct.  Eei 
SOS. 

If  a  decision  is  made  to-day  on  this  mil 
joct  which  our  oourU  would  not  have  mad 
one  hundred  years  ago,  when  these  Indian 
were  powerful,  our  courU  would  not,  i 
the  language  of  this  court,  l>e  adminiatei 
ing  "that  superior  justice  in  respect  to  Ii 
dians  which  becomes  our  judiciary." 

United  SUtes  v.  Rickert,  188  U.  S.  481 
47  L.  ed.  632,  23  Sup.  Ct.  Hep.  478.  8« 
also  Dick  V.  United  SUtes,  203  U.  S.  3» 
52  L.  ed.  620,  28  Sup.  Ct.  Rep.  309. 

The  Hartford  convention  should  not  1 
honored  in  this  cause  by  thU  court  for  an 
purpose  prejudicial  to  the  Benecas. 

Ogdan  V.  Lee,  6  Hill.  646;  The  New  Yoi 
Indians  (Fellows  v.  DennisUn)  6  Wal 
768,  18  I*  ed.  712,  reversing  23  N.  Y.  42t 
Fellows  V.  Blacksmith,  IB  How.  366,  16  '. 
ed.  684,  affirming  7  N.  Y.  401;  Holden 
Joy.  17  WalL  844,  21  L.  ed.  534;  New  Yoi 
ex  r«L  Cutler  t.  IHbble.  81  How.  388,  lo 

lies 


■     ed    149.  affirming  16  N.  Y.  203;   Seoeea 
ation  T.  Appleby,  196  N.  Y.  323.  89  N.  t 
15;  Ryan  v,  Knorr,  19  Hun,  640. 
Assistant  Attorney  General  Wwren  also 
rgued  the  cause,  and.  with  Mr.  W.  W. 
yar,  filed  ■  brief  for  plaintiffs  in  error; 
The  language  used  in  treaties  with  ths 
idiana  should  never  be  construed  to  their 
rejudice.      How   the   words  of   the   treaty 
ere  understood  by  this  unlettered  people, 
ither   than   their  critical  meaning,  should 
>rm  the  rule  of  construction. 
Worcester   v.   Georgia,   «   Pet.   615,   681, 

L.  ed.  463,  608;  Ihe  Kaoaas  Indians 
Blue  Jacket  v.  Johnson  County)  6  Wall 
37  767,  18  L.  ed.  667,  873;  ChooUw  Na- 
ion  V.  United  States,  119  U.  S.  1,  27,  88, 
0  L.  ed.  306,  314,  315,  7  Sup.  Ct.  Rep.  76; 
ones  V.  Meehan,  176  U.  S.  1,  11,  44  L.  ed. 
9  64,  20  Sup.  Ct.  Rep.  1;  United  SUtes 
.  Winans,  1B8  U.  S.  371,  380,  49  L.  ed. 
089,  10B2,  26  Sup.  Ct.  Rep.  662;  North- 
m  P.  R.  Co.  V,  United  SUtea,  287  U.  S. 
56,  368,  367,  67  L.  ad.  644,  648,  650,  83 
(up.  Ct.  Rep.  36B;  Winters  v.  United 
iUtea,  207  U.  S.  664,  62  L.  ed.  340.  28 
iup.  Ct.  Rep.  207. 

The  Seneca  and  other  New  York  tnbal 
ndUns  are  wards,  not  of  the  eUte.  hut  of 
lie  United  SUtes. 

Worcester  v.  Geor^,  8  Pet.  616,  B  L.  el 
183;  The  New  York  Indiana  (Fellows  v. 
Oenniston)  6  Wall.  761,  18  L.  ed.  711; 
Fellows  V.  Blacksmith.  18  How.  366,  16  I* 
■d.  684;  People  ei  rol.  Cuaick  v.  Daly,  212 
S.  Y.  183,  105  N.  E.  1048,  Ann.  Oaa.  1816D, 
J67.  ,. 

The  hunting  and  fishing  ri^ta  mvolved 
ire  a  part  of  the  original  Indian  righte  of 
Kcupancy,  reserved  in  the  very  inatmment 
jf  cession,  never  relinquished,  and  continn- 
DUsly  held  under  the  andent  Indian  title. 
The  loiru*  i*  quo,  therefore,  always  re- 
mained an  Indian  reservation  pro  tanto. 

United  StaUs  t.  Winans,  108  U.  8.  371, 
18  L.  ed.  lOBB,  26  Sup.  Ct.  Rep.  «a2. 

There  ia  nothing  peculiarly  8*cred  in  sUle 
control  over  flah  and  game;  and  ia  ths 
West  the  courts  have  expressly  held  that 
sUte  fish  and  game  laws  cannot  be  en- 
forced against  Indians  on  their  own  reser- 
vations. 

Re  Blackbird,  108  Fed.  139;  Re  Lfneoln, 
128  Fed.  247;  State  v.  Campbell,  6S  Minn. 
364,  21  LJIA.  169,  55  N.  W.  653. 

The  reeerved  rights  of  hunting  and  fishing 
are  secured  to  the  Seneca  Indiana  by  the 
word  of  the  United  SUtea,  given  at  a  pub- 
lic treaty,  which  ia  the  aupreme  law  of  the 
land. 

Fellows  V.  Blacksmith,  19  How.  386,  31% 
15  L.  ed.  6S4,  686. 
SUte  police  lawB  must  yield  when  clear- 
341  V.B- 


1915. 


NEW  YORK  EX  SKL.  KENNEDY  ▼.  BECKER. 


ly  in  conflict  with  the  prohibitions  of  the 
Constitution  (Eubank  v.  Richmond,  226  U. 
S.  137,  57  L.  ecL  156,  42  L.RJl.(N.S.)  1123, 
33  Sup.  Ct.  Rep.  76,  Ann.  Cas.  1914B,  192), 
or  with  Federal  laws  or  treaties  passed  or 
made  in  the  exercise  of  powers  clearly 
granted. 

Sligh  y.  Kirkwood,  237  U.  S.  52,  58,  59 
L.  ed.  835,  837,  85  Sup.  Ct.  Rep.  501;  Geo- 
froy  V.  RiggB,  133  U.  S.  258,  266,  267,  33 
L.  ed.  642,  644,  645,  10  Sup.  Ct.  Rep.  295. 

The  United  States  may,  by  treaty,  con- 
tinue in  force  its  legislation  iforbidding  the 
sale  of  intoxicating  liquors  to  Indians,  even 
upon  lands  which  have  been  ceded  and 
patented  to  whites  under  the  town-site 
laws. 

Dick  V.  United  States,  208  U.  S.  340,  52 
L.  ed.  520,  28  Sup.  Ct.  Rep.  300;  Johnson 
V.  Gearlds,  234  U.  S.  422,  58  L.  ed.  1383,  34 
Sup.  Ct.  Rep.  794. 

And  Federal  legislation  may  continue  in 
force  after  the  Indian  lands  have  been 
allotted  in  severalty  and  are  held  under 
trust  patents,  although  the  Indians  have 
become  citizens  of  the  states. 

United  States  ▼.  Pelican,  232  U.  S.  442, 
447,  58  L.  ed.  676,  678,  34  Sup.  Ct.  Rep. 
306;  Perrin  v.  United  States,  232  U.  S. 
478,  58  L.  ed.  691,  34  Sup.  Ct.  Rep.  387. 

It  cannot  be  denied  that  these  exertions 
of  Federal  power  abridged  the  free  exer- 
cise of  their  ordinary  police  power  to  con- 
trol the  sale  of  intoxicating  liquors  by  the 
states  concerned. 

Those  authorities  are  applicable  here,  for 
the  power  of  the  United  States  over  Indian 
relations  does  not  depend  upon  Federal 
ownership  of  the  lands  they  occupy,  but 
upon  the  subject-matter. 

Perrin  v.  United  States,  232  U.  S.  478, 
484,  485,  58  L.  ed.  691,  694,  695,  34  Sup. 
Ct.  Rep.  387;  United  States  v,  Sandoval, 
231  U.  S.  28,  58  L.  ed.  110,  34  Sup.  Ct. 
Rep.  1;  United  States  ▼.  43  Gallons  of 
Whiskey  (United  SUtes  ▼.  Lariviero)  93 
U.  S.  188,  23  L.  ed.  846. 

The  agreement  here  involved  was  within 
the  scope  of  the  treaty-making  power 
vested  in  the  government. 

Holden  v.  Joy,  17  Wall.  211,  243,  21  L. 
ed.  523,  534;  Geofroy  v.  Riggs,  133  U.  S. 
258,  267,  33  L.  ed.  642,  645,  10  Sup.  Ct. 
Rep.  295. 

The  operation  of  the  state  fish  and  game 
laws  was  excluded  by  the  exercise  of  Fed- 
eral power. 

The    Kansas    Indians    (Blue    Jacket    v. 


Mr.  Blaine  F.  Sturgis  argued  the  cause, 
and,  with  Mr.  A.  Frank  Jenks  and  Mr.  E.  E. 
Woodbury,  Attorney  General  of  New  York, 
filed  a  brief  for  defendant  in  error: 

When  Indians  leave  their  reservations 
and  cross  into  territory  over  which  the 
state  has  governmental  jurisdiction,  they 
forfeit  the  protection  accorded  them  as 
wards  of  the  Federal  government,  and  sub- 
ject themselves  to  tiie  laws  of  the  state, 
the  same  as  other  individuals. 

C3airmont  v.  United  States,  225  U.  S. 
551,  56  L.  ed.  1201,  32  Sup.  Ct.  Rep.  787; 
Ward  V.  Race  Horse,  168  U.  S.  504,  41  L. 
ed.  244,  16  Sup.  Ct.  Rep.  1076;  Ex  parte 
Tilden,  218  Fed.  920. 

The  governmental  power  of  self-protec- 
tion cannot  be  contracted  away,  nor  can 
the  exercise  of  rights  granted,  nor  the  use 
of  property,  be  withdrawn  from  the  im- 
plied liability  to  governmental  regulation 
in  particulars  essential  to  the  preservation 
of  the  community  from  injury. 

New  York  &  N.  E.  R.  Co.  ▼.  Bristol,  151 
U.  S.  556,  567,  38  L.  ed.  269,  272,  14  Sup. 
Ct.  Rep.  437. 

Every  holder  of  property,  however  abso- 
lute and  unqualified  may  be  his  title,  holds 
it  under  the  implied  liability  that  its  use 
may  be  so  regulated  that  it  shall  not  be 
injurious  to  the  equal  enjoyment  of  others 
having  an  equal  right  to  the  enjoyment  of 
their  property,  nor  injurious  to  the  rights 
of  the  community.  All  property  in  this 
commonwealth,  as  well  that  in  the  interior 
as  that  bordering  on  tide  waters,  is  derived 
directly  or  indirectly  from  the  government, 
and  held  subject  to  those  general  regula- 
tions which  are  necessary  to  the  common 
good  and  general  welfare.  Rights  of  prop- 
erty, like  all  other  social  and  conventional 
rights,  are  subject  to  such  reasonable  limi- 
tations in  their  enjoyment  as  shall  prevent 
thera  from  being  injurious,  and  to  such  rea- 
sonable restraints  and  regulations  estab- 
lished by  law  as  the  legislature,  under  the 
governing  and  controlling  power  vested  in 
it  by  the  Constitution,  may  think  necessary 
and  expedient. 

Com.  V.  Alger,  7  Cush.  84. 

The  ultimate  fee  of  all  lands  occupied  by 
Indians  is  in  the  sovereign,  subject  to  the 
right  of  occupation  untU  the  same  is  ex- 
tinguished under  sanction  of  the  govern- 
ment. Fletcher  ▼.  Peck,  6  C^nch,  87,  3 
L.  ed.  162;  Johnson  v.  M'Intosh,  8  Wheat. 
543,  5  L.  ed.  681;  United  States  v.  Kaga- 
ma,  118  U.  S.  375,  80  L.  ed.  228,  6  Sup. 
Ct.  Rep.  1109. 

The  treaty  making  power  was  never  in- 
tended to  abridge  the  right  of  a  state  to 
regulate  its  strictly  internal  affairs. 


Johnson  County)   5  Wall.  737,  755,  18  L.  I      Geofroy  v.  Riggs,  133  U.  S.  258,  33  L.  ed. 
ed.  667,  672.  '  '  642,  10  Sup.  Ct.  Rep.  295 ;  Tucker,  Limita- 

•0  I/,  ed.  74  11«9 


559,  560 


SUPREME  CX)URT  OF  THE  UNITED  STATES. 


Oct.  Teem, 


tions  on  Treaty  Making  Power  1915,  pp. 
381,  382. 

In  construing  provisions  of  a  treaty,  this 
court  has  always  upheld  the  police  power  of 
the  states,  where  possible. 

Ward  V.  Race  Horse,  163  U.  S.  504,  41 
L.  ed.  244,  16  Sup.  Ct.  Rep.  1076;  Patsone 
V.  Pennsylvania,  232  U.  S.  138,  58  L.  ed. 
539,  34  Sup.  Ct.  Rep.  281;  Compagnie 
Frangaise  de  Navigation  It  Vapeur  v.  State 
Bd.  of  Health,  186  U.  S.  380,  394,  305,  46 
L,  ed.  1209,  1216,  1217,  22  Sup.  Ct.  Rep. 
811. 

Mr.  Herbert  B.  lioe  also  argued  the 
cause  and  filed  a  brief  for  defendant  in  er- 
ror: 

The  state  of  New  York,  except  in  so  far 
as  it  has  delegated  its  inherent  powers  to 
the  United  States,  has  the  jurisdiction  de- 
scribed, including  jurisdiction  over  Indians, 
for  the  Federal  government  is  a  govern- 
ment of  delegated  powers. 

People  ex  reL  Cusick  v.  Daly,  212  N.  Y. 
183,  105  N.  E.  1048,  Ann.  Cas.  1915D, 
367;  Cherokee  Nation  v.  Georgia,  5  Pet. 
1,  22,  8  L.  ed.  25,  32;  Mitchel  v.  United 
States,  9  Pet.  712,  745,  9  L.  ed.  283,  205; 
New  York  ex  rel.  Cutler  v.  Dibble,  21  How. 
366,  16  L.  ed.  149;  Dick  v.  United  States, 
208  U.  S.  340,  353,  52  L.  ed.  520,  525,  28 
Sup.  Ct.  Rep.  399. 

The  character  of  the  contracting  parties, 
the  subject-matter  of  the  transaction,  and 
the  language  employed  by  them,  indicate 
that  this  grant,  far  from  being  a  treaty  in 
the  proper  sense  of  that  term,  was  in  fact 
the  familiar  conveyance  of  an  interest  in 
land  by  one  individual  or  group  of  common 
owners  to  another  individual. 

Cherokee  Nation  v.  Georgia,  5  Pet.  1, 
17,  22,  8  L.  ed.  25,  31,  32;  United  States 
V.  Rogers,  4  How.  567,  572,  11  L.  ed.  1105, 
1107;  New  York  ex  rel.  Cutler  ▼.  Dibble, 
21  How.  366,  370,  16  L.  ed.  140,  151; 
United  States  v.  Kagama,  118  U.  S.  375, 
381,  30  L.  ed.  228,  230,  6  Sup.  Ct.  Rep. 
1109;  Mitchel  v.  United  SUtes,  9  Pet.  712, 
745,  9  L.  ed.  283,  295;   United  States  v. 

48  Gallons  of  Whiskey  (United  States  ▼. 
Lariviere)  93  U.  S.  188,  23  L.  ed.  846. 

In  Ward  v.  Race  Horse,  163  U.  S.  504, 
41  L.  ed.  244,  16  Sup.  Ct.  Rep.  1076,  sinu- 
lar  to  the  case  at  bar,  this  court  held  that 
a  treaty  in  which  the  Indians  reserved  the 
right  to  hunt  upon  the  land  ceded  had  left 
them  amenable  to  the  game  laws  of  Wy- 
oming. 

United  States  v.  Winans,  198  U.  S.  371, 

49  L.  ed.  1089,  25  Sup.  Ct.  Rep.  662,  did 
not  overrule  Ward  ▼.  Race  Horse,  but  is 
distinguishable  therefrom,  and  consistent 
with  the  contentions  of  defendant  in  error. 
1170 


Mr.  Chief  Justice  White  delivered  the 
opinion  of  the  court,  after  reading  the  fol- 
lowing memorandum: 

This  opinion,  by  direction  of  the  eourt, 
had  been  prepared  by  Mr.  Justice  Hughes, 
and  was  approved  before  hift  resignation. 
After  that  event,  it  was  again  considered, 
and  was  re-adopted. 

Fayette  Kennedy,  Warren  Kennedy,  and 
Willis  White,  Jr.,  three  Seneca  Indians,  re- 
siding on  the  Cattaraugus  Reservation,  un- 
der the  charge  of  an  Indian  agent  of  the 
United  States,  were  arrested  for  spearing 
fish  in  Eighteen  Mile  creek,  in  Erie  county, 
state  of  New  York,  at  a  place  outside  the 
Reservation,  and  there  having  certain  fish 
in  their  possession,  in  violation  of  §    176 
of  the  conservation  law  of  that  state.     A 
justice  of  the  peace  committed  them  to  the 
custody  of  the  sheriff,  and  a  writ  of  habeas 
corpus  was  sued  out  upon  the  ground  that 
the  commitment  was  invalid.     It  was  al- 
leged that  the  persons  arrested  were  tribal 
Indians,  as  above  stated,  and  that  the  place 
where  the  offense  was  committed  was  within 
the  territory  included  in   "certain    grants 
.     .     .    under  sanction  of  the  United  States 
of    America,    whereby    .    .     .    the     right 
was  reserved  to  the  said  Indians   to   fish 
in  the  waters  on  and  in  said  lands."   The  su- 
preme court,  at  special  term,  discharged  the 
petitioners,  holding  that  the  ancient  grants, 
agreements,    and    the    treaties    mentioned* 
and    [560]    particularljr   the   treaty   made 
between  the  Seneca  Nation  of  Indians  and 
Robert  Morris,  in  the  year  1797,  permitted 
these  Indians  to  fish  in  the  waters  in  ques- 
tion ''at  will,  and  at  all  seasons  of  the  year, 
regardless  of  the  provisions  of  the  game 
laws  of  the  state  of  New  York."   The  ap- 
pellate division  of  the  supreme  court,  fourth 
department,    reversed    the    order,    and    re- 
manded the  three  Indians  to  custody  (165 
App.  Div.  881,  151  N.  Y.  Supp.  138);  and 
the    order    of   the    appellate    division    w:as 
affirmed    by    the    court    of    appeals.      The 
court  entertained  the  Federal  question  pre- 
sented, and  decided  that  the  state  law,  not- 
withstanding  the   treaty,    was   applicable. 
215  N.  Y.  42,  109  N.  E.  116. 

Section  176  of  the  conservation  law  of 
New  York  prohibits  the  taking  of  fish,  or 
having  the  same  in  possession,  except  as 
permitted  by  the  article  of  which  it  is  a 
part.  The  validity  of  these  provisions  with 
respect  to  those  subject  to  the  jurisdiction 
of  the  state  is  not  questioned.  The  con- 
troversy relates  solely  to  the  state  power 
over  these  Indians. 

The  argument  for  the  plaintiffs  in  error 
has  taken  a  wide  range,  and  embraces  an 
extended  history  of  the  dealings  with  the 
Six  Nations.  We  do  not  find  it  to  be  neces- 
sary to  review  this  interesting  history,  as 

241   U.  S. 


1015.  NEW  YORK  EX  bel.  KENNEDY  ▼.  BECKER.  560-563 

the  question  to  be  determined  is  a  narrow  i  were  subject  to  the  jurisdiction  and  sover- 
one.  The  locus  m  quo  is  within  the  state  eignty  of  the  [562]  state  of  New  York. 
of  New  York,  being  within  1  mile  from  the  I  The  grant  contained  the  following  reserva- 


point  where  Eighteen  Mile  creek  empties 
into  Lake  Erie.  It  is  not  within  the  terri- 
torial limits  of  the  Indian  Reservation  on 
which  the  Scnecas  reside.  It  is  within  the 
territory  which  was  ceded  by  the  Seneca 
Nation  to  Robert  Morris  by  the  treaty  of 
the  "Big  Tree/'  of  September  15,  1707  (7 
Stat,  at  L.  601),  and  the  question  turns 
upon  the  construction  of  this  treaty;  that 
is,  on  the  consequences  which  attached  to 
the  reservation  therein  of  fishing  and  hunt- 
ing rights  upon  the  lands  then  granted. 
These  lands  were  a  part  of  the  tract  cov- 
ered by  the  compact  made  in  1786  between 
the  state  of  New  York  and  the  [561]  com- 
monwealth of  Massachusetts,  known  as  the 
Hartford  convention.  (Journals  of  Con- 
gress, vol.  4,  p.  787.)  By  the  terms  of  this 
compact  for  the  settlement  of  existing  con- 


tion,  which  is  in  question  here: — "Also,  ex- 
cepting and  reserving  to  them,  the  said  par- 
ties of  the  first  part  and  their  heirs,  the 
privilege  of  fishing  and  hunting  on  the 
said  tract  of  land  hereby  intended  to  be 
conveyed." 

The  right  thus  reserved  was  not  an  ex- 
clusive right.  Those  to  whom  the  lands 
were  ceded,  and  their  grantees,  and  all  per- 
sons to  whom  the  privilege  might  be  given, 
would  be  entitled  to  hunt  and  fish  upon 
these  lands,  as  well  as  the  Indians  of  this 
tribe.  And,  with  respect  to  this  nonexclu- 
sive right  of  the  latter,  it  is  important  to 
observe  the  exact  nature  of  the  controversy. 
It  is  not  disputed  that  these  Indians  re- 
served the  stated  privilege  both  as  against 
their  grantees  and  all  who  miglit  become 
owners    of    the    ceded    lands.     We    assume 


troversies,  Massachusetts  ceded,  granted,  and  that  they  retained  an  easement,  or  profit 

released  to  New  York  all  its  "claim,  right,  ^  prendre,  to  the  extent  defined;    that  is 

and  title"  to  the  "government,  sovereignty,  not  questioned.    Tlie  right  asserted  in  tliis 

and  jurisdiction"  of  the  lands,  while  New  p^se  is  against  the  state  of  New  York.     It 

York  ceded,  granted,  and  released  to  Massa-  ^^  ^  j-jght  sought  to  be  maintained  in  dero- 

chusetU  "the  right  of  pre-emption  of  the  g^^jon  of  the  sovereignty  of  the  state.     It 

soil  from  the  native  Indians,  and  all  other  j^  ^^^t  a  claim  for  the  vindication  of  a  right 

the  estate,  right,  title,  and  property"  which  ^^  p^j^j^t^  property  against  any  injurious 

the  state  of  New  York  had.     Subsequently  discrimination,   for  the  regulations  of  the 

Massachusetts   sold   to    Robert   Morns    its  ^^^^  ^ppjy  ^  ^^  persons  equally.     It   is 

"pre-emptive  right."     By  §  12  of  the  Fed-  ^^e   denial   with  respect  to  these  Indians, 

eral  Indian  intercourse  act  of  May  19,  1796  ^„^  ^y^^  exercise  of  tlie  privilege  reserved, 

(1  Stat,  at  L.  469,  472,  chap.  30),  it  was  ^f  ^^  g^ate  power  of  control  or  reasonable 

provided  that  no  conveyance  of  lands  "from  regulation  as  to  lands  and  waters  otherwise 

any  Indian,  or  nation  or  tribe  of  Indians,"  admittedly  within  the  jurisdiction   of  the 

should  be  valid  imless  "the  same  be  made  g^^^ 

by  treaty  or  convention,  entered  into  pur-  j^  jg  ^^^  ^  y^  doubted  that  the  power  to 
suant  to  the  Constitution;"  and  this  was  preserve  fish  and  game  within  its  borders 
subject  to  a  proviso  as  to  the  proposal  and  jg  inherent  in  the  sovereignty  of  the  state 
adjustment  of  compensation  by  state  agente  ^Q^g^  ^  Connecticut,  161  U.  S.  519,  40  U 
in  the  presence  and  with  the  approval  of  ^  793^  jg  g^p  q^  j^^p  qqO;  Ward  v.  Race 
commissioners  of  the  United  States.  The  ^Q^Be,  163  U.  8.  504,  507,  41  L.  ed.  244, 
lands  in  question  were  accordingly  conveyed  345,  16  Sup.  Ct.  Rep.  1076),  subject,  of 
to  Robert  Morris  by  the  treaty  above  men-  course,  to  any  valid  exercise  of  authority 
tioned.  From  the  preamble  (as  shown  by  ^^^^^  ^j^g  provisions  of  the  Federal  Con- 
the  original  on  file  in  the  SUte  Depart-  gtitution.  It  is  not  denied—save  as  to  the 
ment,  a  copy  of  which  has  been  produced  members  of  this  tribe— that  this  inherent 
by  the  government)  it  appears  that  the  con-  p^^^^  extended  over  the  locut  in  quo  and 
veyance  was  made  under  the  authority  of  ^^  ^^  persons  attempting  there  to  hunt  or 
the  United  States,  and  in  the  presence  of  f^^^  whether  they  are  owners  of  the  lands 
the  United  Stetes  commissioner,  and  the  ^^  others.  The  contention  for  the  plain- 
treaty  was  proclaimed  by  the  President  ^^^  j^  error  must,  and  does,  [663]  go  to 
after  ratification  by  the  Senate  on  April  ^^  g^^^^^  ^f  insisting  that  the  effect  of  the 
11,  1798.  The  convention  is  in  the  form  of  reservation  was  to  mainUin  in  the  tribe 
an  indenture  by  which  (identifying  the  govereignty  quoad  hoc.  As  the  plaintiffs  in 
tract  as  being  part  of  that  embraced  in  the  error  put  it:  "The  land  itself  became  there- 
Hartford  convention)  these  lands  were  by  subject  to  a  joint  property  ownership 
granted  by  the  sachems,  chiefs,  and  warriors  and  the  dual  sovereignty  of  the  two  peoples, 
of  the  Seneca  Nation  to  Robert  Morris,  white  and  red,  to  fit  the  case  intended,  how- 
'^is  heirs  and  assigns  forever."  The  lands  ever  infrequent  such  situation  was  to  be." 
— ^which  were  soon  resold — thus  passed  by  We  are  unable  to  take  this  view.  It  is 
the  conveyance  into  private  ownership,  and  said  that  the  state  would  regulate  the 
60  li.  ed.  1171 


S6S-6U                    SUPBBllB  COURT  OF  THE  UNITED  STATES.  Oct.  Tnii, 

whites  »nd  that  th*  Indian  tribe  would  can  of  an  Indian  agent ;  but  this  fact  doM 
r^ulate  ita  member*,  but  if  neither  oould  not  derogate  from  the  authority  ol  the  etatt, 
exerciae  authority  with  respect  to  the  other  in  a  caae  bice  the  present,  to  enforce  iU 
at  the  looM  in  put,  sither  would  be  free  laws  at  the  loou*  in  giAo.  Ward  w.  Bue 
to  deitroj  the  subject  at  the  power.  Such  Horse  and  United  Slates  t.  WLuaiu,  tupit. 
a  duaiitj  of  sovereignty,  instead  of  main-  There  is  no  question  of  conflict  with  aoj 
taining  in  each  Uie  esaential  power  of  iegislation  of  Congreai  or  with  action  undtf 
preservation,  would  in  fact  deny  it  to  Iwth.  its  authority;  for  the  case  rests  on  the  coa- 
It  has  frequently  been  said  that  treaties  itruction  of  the  treaty.  The  only  action  at 
with  the  Indiana  should  be  construed  in  the  Federal  authority,  that  is  pertinent,  is 
•ense  in  which  the  Indians  understood  found  in  the  oonvention  itself.  It  stioold 
them.  But  it  is  idle  to  suppose  that  there  be  added  that  we  have  not  oonaideied  aaj 
was  any  actual  anticipation  at  the  time  question  relating  to  conduct  or  Aahiig 
the  treaty  was  made  of  the  conditions  now  rights  upon  territory,  not  ceded,  wiiieh  is 
ttisting,  to  which  the  legislation  in  ques-  comprisea  within  the  Indian  Reservation! 
tion  was  addressed.  Adopted  when  game  nor  is  it  neceaaary  to  deal  with  other  nut- 
was  plentiful, — when  the  cultivation  con-  ter*  which  have  been  discussed  in  argument 
templated  by  the  whites  waa  not  expected  touching  the  relation  of  the  stats  of  Nea 
to  interfere  with  its  abundance, — It  can  York  to  the  Indians  within  ita  borders, 
hardly  be  supposed  that  the  thought  of  the  We  find  no  error  in  the  judgment  of  thi 
Indiana  was  concerned  with  the  necessary  state  court,  and  it  is  accordingly  affirmed, 
exercise  of  inherent  power  under  modern  Judgment  affirmed, 
eonditiona  for  the  preservation  of  wild  life. 

But  the  existence  of  the  sovereignty  of  the  

■tate   was   well   understood,   and   this   con- 

oeption   involved   all   that   was   necessarily  [gasj   STATE  OF  OHIO  ON  RELATION 

Implied  in   that  sovereignty,   whether  fully  OF  DAVID  DAVIS,  Flft.  in  Err, 

appreciated  or  not.     We  do  not  think  that  v. 

it  is  a  proper  conetruoUon  of  the  reurva-  CHARLES  Q.  HILDEBRUIT,  SecreUry  of 
tion  in  the  conveyance  to  regard  it  a*  an  StaU  of  Ohio,  SUte  Supervisor  and  la- 
attempt  either  to  reserve  aovereign  prerc^a-  specter  of   ElecUons.  and  SUte  Supff- 
tive.  or  so  to  divide  the  inherent  power  of  "»«"■  °'  Elections,  et  aL 
preservaUon  a.  to  make  if  comp«t«.t  ezer-  ^  g  ^  ^g^^t^.,  ^  MW-8T0.) 
cue  impossible.    Rather  are  we  of  the  opin-  ' 

ion  that  the  olauae  is  fully  aatisfied  by  con-  Hrrot  to  atate  court  —  scope  of  reriew 
Sidering  it  a  reservation  of  a  privilege  of  _  non-Federal  anextioa. 
fishing  and  hunting  upon  the  granted  lands  1.  Whether  a  state,  so  far  as  it  had 
in  common  with  the  [SB4]  grantees,  and  the  power  to  do  so,  had  bv  coastitutionsl 
others  to  wliom  the  privilege  might  be  ex-  amendment  vested  a  part  of  the  legislative 
tended,  but  subject,  nevertheleai,  to  that  [«"""■  ^  ^»  people,  by  reserving  a  riaW 
necessary  power  of  appropriate  regulaUon,  ^7  way  of  referendum  to  approve  or  d.i- 
if  it  ■  T  J  V  1.  ■  L  J  ■  approve  by  popular  »ot«  any  taw  enacled 
as  to  all  tbo«.  privileged,  which  inhered  in  PP^^^^  geJersf  assembly,  is  a  question  d 
the  sovereignty  of  the  sUU  over  the  lauds  .('^j^  i,„_  ^  decision  of  which  by  the  iiigh- 
where  the  privilege  was  exercised.  This  est  sUte  court  is  not  reviewable  by  the  Fed- 
was  clearly  recognized  in  United  States  v.  eral  Supreme  Court  on  writ  of  error  to  Um 
Winans,  19B  U.  8.  371,  384,  49  L.  ed.  1089,  aUte  court. 
1093,  25  Sup.  Ct.  Rep.  662,  where  the  court,  t^'JJjJ'*'^  a^t'sn^^S^lSoi.)^'"*''  ^*" 


in  sustaining  the  fishing  rights  of  the  Indiana 


Consreaa  —  reapportionment  • 


n  the  ColumbU  river,  under  the  provisions        „,uoa  of  referendum  m  a _„ 

of  the  treaty  between  the  United  States  and        ny^  power. 

the   Yakima   Indians,  ratified   in   18110    [Ifi  £.  Congress,  by  providing  in  the  re^ 

But.  at  L.  Bfil],  said   (referring  to  the  au-  — : r .      .  . : z^ 

thority  of  the  state  of  Washington) :    "Nor       Nort— On  the  genersJ  subject  <>*  J^^ 

J /„   ,.t..  ;      ,1.  ,.  ,,.  „?<i*  'i,i„„  n.i.  error    from    the    United    St«tea    Supreme 

does    t     (that  ij,  the  right  of     taking  flsh  ^^^  ^  ^^^^^  courts—se  notes  to  liartis 

at  all  usual  and  accustomed  places")   're-  ,    HunUr,  4  L.  od.  U.  S.   97 ;   Hamblin  v. 

•train  the  ataU  unreasonably,  if  at  all,  in  Western  Land  Co.  37  L.  ed.  U.  8.  E67-,  Rs 

the  regulation  of  the  right     It  only  fixes  Buchanan,  39  L.  ed,  U.  S.  884,  and  Kipl^ 

in  the   land  such   easementa  aa  enable  the  y.  Illino^,  42  L.  ed.  U.  S.  Q98. 
right  to  be  exercised."  On  what  questions  the  Federal  Snprenn 

We  have  assumed  the  applicability  of  the  Court  will  consider  in  reviewing  ^e  judg- 

,.,U  ...;.,»..«-,..  it.  ™...~«i™  ;.  rl  H  ""DS'.^L'il.lT?-""' 
determined    by    the    decision    of    the    state        q^   initiative   and    referendum— see   noU 

court.     We  also  assume  that  these  Indiani  to  State  ex  rel.  Davies  v.  Wtiite,  SO  L-RA. 

are  wards  of  the  United  States,  under  the  {N.S.)   196. 
117*  141  U.  9. 


1015. 


orao 


DAVIS  ▼.  HILDEBRANT. 


portionment  aet  of  August  8, 1911  (37  Stat, 
at  L.  13,  chap.  5,  Comp.  Stat.  1913,  §  15), 
that  the  redistricting  of  the  congressional 
districts  should  be  made  by  each  state  "in 
the  manner  provided  by  the  laws  thereof," 
manifestly  intended  that  where,  by  the  state 
Constitution  and  laws,  the  referendum  is 
treated  as  a  part  of  the  legislative  power, 
the  power  thus  constituted  should  be  held 
and  treated  as  the  state  legislative  power 
for  the  purpose  of  creating  congressional 
districts  by  law. 

[Matters  as  to  Conneas,  see  Congress,  In 
Digest  Sap.  Ct  1908.]  i 

Congress  •»  reapportloiunent  —  recog- 
nition of  referendum  as  state  legisla- 
tive power. 

3.  The  recognition  by  Congress  in  the 
congressional  reapportionment  act  of  Au- 
gust 8,  1911  (37  Stat,  at  L.  13,  chap.  5, 
Comp.  Stat.  1913,  §  15),  of  the  referendum 
as  a  part  of  the  state  legislative  power  for 
the  purpose  of  creating  congressional  dis- 
tricts, where,  by  the  state  Constitution  and 
laws,  the  referendum  is  so  regarded,  does 
not  violate  the  provision  of  U.  S.  Const,  art. 
1,  §  4,  that  the  "times,  places,  and  manner 
of  holding  elections  for  senators  and  repre- 
sentatives shall  be  prescribed  in  each  state 
by  the  legislature  thereof,  but  the  Congress 
may  at  any  time  by  law  make  or  alter  such 
regulations." 

[Matters  as  to  Congress,  see  Congress,  in 
Digest  Sup.  Ct  1908.1 

Courts  •*  jnrlsdlctloii  —  political  ques- 
tion •»  republican  form  of  govern- 
ment ^  referendum. 

4.  Whether  or  not  a  state  has  ceased  to 

be  republican  in  form,  within  the  meaning 

of  the  guaranty  of  U.  S.  Const,  art.  4,  §  4, 

because  it  has  made  the  referendum  a  part 

of  the  legislative  power,  is  not  a  judicial 

question,  but  a  political  one,  which  is  solely 

for  Congress  to  determine. 

[For  other  cases,  see  Courts,  L  e,  2;  Constitu- 
tional Law,  III.  c,  in  Digest  Sup.  Ct.  1008.  J 

Courts  •*  jurisdiction  —  political  ques- 
tion —  congressional  apportionment 
^  referendum  •»  republican  form  of 
government. 

5.  The  courts  may  not  treat  the  provi- 
sions of  the  congressional  apportionment 
act  of  August  8,  1911  (37  Stat,  at  L.  13, 
chap.  5,  Comp.  Stat.  1913,  §  15),  under 
which  the  referendum  is  recognised  as  a 
part  of  the  state  legislative  power  for  the 
purpose  of  creating  congressional  districts, 
where  so  treated  by  the  state  Constitution 
and  laws,  as  repugnant  to  the  republican 
form  of  government  guaranteed  by  U.  S. 
Const,  art  4,  §  4,  since  Congress  is  vested 
with  the  exclusive  authority  to  uphold  this 
guaranty. 

[For  other  cases,  see  Courts,  I.  e,  2 ;  Constitu- 
tional Law,  III.  c  in  Digest  Sop.  Ct.  1908.] 

[No.  987.] 

Submitted  May  22,  1916.    Decided  June  12, 

1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Ohio  to  review  a  judgment  deny- 
60  li.  ed. 


ing  a  writ  of  mandamus  to  compel  state 
election  officers  to  disregard  the  popular 
vote  on  a  referendum  disapproving  a  stat- 
ute redistricting  the  state  for  the  purpose 
of  congressional  elections.  Affirmed. 
The  facts  are  stated  in  the  opinion. 

Messrs.  Sherman  T.  McPlierson  and 
J.  Warren  Kelfer  submitted  the  cause  for 
plaintiff  in  error: 

The  Constitution  of  the  United  States  is 
supreme  whenever  it  speaks;  and  certainly 
as  to  matters  relating  to  its  own  organiza- 
tion and  existence. 

Ex  parte  Siebold,  100  U.  S.  371,  25  U 
ed.  717;  Ex  parte  Tarbrough,  110  U.  S. 
651,  658,  661,  28  L.  ed.  274,  276,  277,  4 
Sup.  Ct.  Rep.  152. 

The  consequences  of  a  Constitution  or 
law  should  be  taken  into  consideration  in 
construing  it. 

Slaughter-House  Oases,  16  Wall.  36,  7S, 
21  L.  ed.  394,  409 ;  4  Enc  U.  S.  Sup.  Ct.  Rep. 
50,  f  12,  and  note  83;  6  Am.  Jk  Eng.  Enc 
Law,  1079,  1080,  note  1;  Cooley,  Const. 
Lim.  62;  Dodge  v.  Woolsey,  18  How.  331, 15 
L.  ed.  401;  Gunn  v.  Bairy,  15  Wall.  610, 
21  L.  ed.  212;  New  Orleans  Gaslight  Co. 
V.  Louisiana  Light  &  H.  P.  &  Mfg.  Co.  115 
U.  S.  672,  29  L.  ed.  524,  6  Sup.  Ct.  Rep. 
252. 

Constitutional  mandates  are  imperative. 
The  question  is  never  one  of  amount,  but 
one  of  power.  The  applicable  maxim  is 
obsta  principiU,  not  de  minimia  non  curat 
lew.  And  so,  whenever  a  particular  object 
is  to  be  effected,  the  language  of  the  Con- 
stitution is  alwajrs  imperative. 

Fairbank  t.  United  States,  181  U.  S. 
283,  291,  45  L.  ed.  862,  866,  21  Sup.  Ct. 
Rep.  648,  15  Am.  Crim.  Rep.  135;  4  Enc 
U.  S.  Sup.  Ct  Rep.  50,  1  12,  p.  83. 

The  Constitution  is  a  written  agreement 
As  such  its  meaning  does  not  alter.  That 
which  it  meant  when  adopted  it  means  now. 

4  Enc  U.  S.  Sup.  Ct  Rep.  36,  f  3,  note 
39 ;  Scott  T.  Sandford,  19  How.  393,  426,  15 
L.  ed.  691,  709;  MePherson  t.  Blacker,  146 
U.  S.  1,  86,  36  L.  ed.  869,  877,  13  Sup.  Ot. 
Rep.  3;  Pcdlock  t.  Farmers'  Loan  k  T.  Co. 
158  U.  S.  601,  621,  89  L.  ed.  1108,  1120,  15> 
Sup.  Ct.  Rep.  912;  South  Carolina  t.  United 
States,  199  U.  S.  437,  448,  50  L.  ed.  261,. 
264,  26  Sup.  Ct  Rep.  110,  4  Ann.  €^ 
737;  Veazie  Bank  t.  Fenno,  8  WaU.  542,. 
19  L.  ed.  486;  Locke  t.  New  Orleans,  4 
WaU.  172,  18  L.  ed.  334;  United  States  t. 
Harris,  1  Abb.  (U.  S.)  110,  Fed.  OtuB.  No. 
15,312;  United  States  v.  Bk)ck,  4  Sawy.  211,. 
Fed.  Cas.  No.  14,609;  Fox  v.  McDonald,  101 
Ala.  51,  21  LJtJL.  529,  46  Am.  St  Rep.  98,. 
13  So.  416;  Evansville  t.  State,  118  Ind. 
441,  4  LJtA.  93,  21  N.  E.  267;  9  Bancroft,. 
History   of  U.  S.   Const.   260;    Martin   t. 

1 


SUPREME  COURT  OP  THE  UNITED  STATES. 


Oct.  Term, 


Hunter,  1  Wheat.  314,  4  L.  ed.  99;  Gibbons 
V.  Ogden,  9  Wheat.  1,  6  L.  ed.  23;  Texaa 
V.  White,  7  WaU.  721,  19  L.  ed.  236; 
Minor  v.  Happersett,  21  Wall.  171,  22  L. 
ed.  629;  McPherson  v.  Blacker,  146  U.  8.  1, 
36  L.  ed.  869,  13  Sup.  Ct.  Rep.  3. 

Courts  must  look  to  the  history  of  the 
times  and  examine  the  state  of  things  then 
existing  when  it  (the  Constitution)  was 
framed  and  adopted  in  order  to  correctly 
interpret  its  meaning. 

4  Enc.  U.  S.  Sup.  Ct.  Rep.  37,  note,  41; 
Rhode  Island  v.  Massachusetts,  12  Pet.  657, 
723,  9  L.  ed.  1233,  1260;  Missouri  v.  Illi- 
nois, 180  U.  S.  208,  219,  45  L.  ed.  497,  504, 
21  Sup.  Ct.  Rep.  331. 

So  as  to  contemporary  exposition. 

4  Enc.  U.  S.  Sup.  Ct.  Rep.  37,  38,  note, 
43. 

A  state  is  described  and  defined — "a  gov- 
ernment under  which  the  people  live,  etc." 

Texas  v.  White,  7  WaU.  700,  19  L.  ed. 
227. 

See,  as  to  constitutional  limitations  of 
states,— 4  Enc.  U.  S.  Sup.  Ct.  Rep.  138, 
139,  note,  61;  Barron  v.  Baltimore,  7  Pet. 
243,  8  L.  ed.  672. 

The  Constitution  of  the  United  States 
renders  void  and  annuls  whatever  is  done 
in  opposition  to  it. 

Poole  v.  Fleeger,  11  Pet.  185,  212,  9  L.  ed. 
680,  691;  Cummings  v.  Chicago,  188  U.  S. 
410,  428,  47  L.  ed.  525,  530,  23  Sup.  Ct. 
Rep.  472;  4  Enc.  U.  S.  Sup.  Ct.  Rep.  180. 

The  language  of  the  Constitution  is  im- 
perative on  the  state  legislature,  to  make 
laws  prescribing  the  times,  places,  and  man- 
ner of  holding  elections  for  senators  and 
representatives,  and  for  the  electors  of 
President  and  Vice  President.  ] 

Martin  v.  Hunter,  1  Wheat.  304,  4  L.  ed. 
97. 

Perhaps  the  safest  rule  of  interpretation 
will  be  found  to  be  to  look  to  the  nature  i 
and  objects  of  the  particular  powers,  duties, 
and  rights,  with  all  the  light  and  aids  of 
contemporary  history;  and  to  give  to  the 
words  of  each  just  such  operation  and  force, 
consistent  with  their  legitimate  meaning, 
as  may  fairly  secure  and  attain  the  ends 
proposed. 

Prigg  V.  Pennsylvania,  16  Pet.  540,  610, 10 
L.  ed.  1061,  1087. 

Nothing  in  a  state  Constitution  could 
ipiterfere  with  the  right  given  to  the  legis- 
lature of  the  state  by  art.  1,  §  4  of  the 
Constitution  of  the  United  States. 

1  Hinds,  Precedents,  p.  653;  Martin  ▼. 
Hunter,  supra. 

The  power  exclusively  given  to  the  legis- 
lature by  the  supreme  organic  law  of  the 
United  States  cannot  be  either  delegated 
or  assumed  in  any  manner  by  the  people 
of  the  state  of  Ohio. 
1174 


McPherson  v.  Blacker,  92  Mich.  377,  16 
L.R.A.  475,  31  Am.  St.  Rep.  587,  62  N.  W. 
469,  146  U.  S.  1,  35,  36  L.  ed.  869,  877,  IS 
Sup.  Ct.  Rep.  3;   Texas  v.  White,  7  WalL 
700,  721,  19  L.  ed.  227,  236;   Chisholm  v. 
Georgia,  2  DaU.  419,  1  L.  ed.  440;  Leitens- 
dorfer   v.   Webb,   20   How.   176,   15   L.    ed. 
891;   Ex  parte  Siebold,  100  U.  S.  371,  25 
L.  ed.   717;   Re  Green,   134  U.  8.   377,  33 
L.  ed.  951,  10  Sup.  Ct.  Rep.  586;    6    Am 
&   Eng.   Enc.   Law,   1021,   note   6;    Cincin- 
nati, W.  &  Z.  R.  Co.  V.  Clinton  County,  1 
Ohio    St.    77;    1    Bartlett,    Election    Cases, 
pp.  47,  60;   1  Hinds,  Precedents,  pp.   170- 
172,  180,  181,  286,  287,  300-302,  391,  392, 
654,  659,  661-672,  841-843,  1099,  1100,  §§ 
309,  310,  313,  359,  360,  363,  367,  522,  524, 
525,  n.  24,  632,  844,  856;  2  Hinds,  Prece- 
dents,  pp.   24-26,  230,  238,   240,  241,   738, 
742,    §§    856,    945,    946,    947,    1132,    1133; 
Baldwin   v.   Trowbridge,   2  Bartlett,   Elec- 
tion  Cases,  46;    Donnelly  v.  Washburn,   1 
Ells.  495;  McCrary,  Elections,  pp.  109-112. 

Each  government  is  sovereign  within  its 
own  powers. 

4  Enc.  U.  S.  Sup.  Ct.  Rep.  185,  note  19 ; 
Respublica  v.  Cobbet,  3  DalL  467,  473,  1 
L.  ed.  683,  685;  M'Culloch  v.  Maryland,  4 
Wheat.  376,  4  L.  ed.  594. 

In  the  instances  where  (as  under  U.  S. 
Const,  art.  1,  §  4)  the  right  is  given  to 
exercise  a  certain  power  by  law,  and  the 
right  is  reserved  to  Congress  to  make  or 
alter  such  legislation,  the  latter's  failure 
to  act  leaves  the  legislature  with  such  full 
power. 

4  Enc.  U.  S.  Sup.  Ct.  Rep.  175,  note  90; 
Sturges  V.  Crowninshie^d,  4  Wheat.  122,  4 
L.  ed.  529. 

Whenever  the  will  of  the  nation  inter- 
venes exclusively  in  this  class  of  cases,  the 
authority  of  the  state  retires  and  lies   in 
abeyance  until   a   proper  occasion   for    its- 
exercise  shall  recur. 

4  Enc.  U.  S.  Sup.  Ct.  Rep.  175,  176,  note 
91;  GUman  v.  Philadelphia,  3  WalL  713,  18 
L.  ed.  96. 

There  has  been  some  confusion  rather 
than  conflict  of  views  growing  out  of  ad- 
mitting new  states  and  electing  representa- 
tives at  the  same  time,  as  provided  in  a 
prior  convention  plan.  Such  provisions 
have  sometimes  been  held  to  anticipate  the 
action  of  a  yet  to  be  chosen  legislature, 
but  it  has  always  been  held  that  where 
there  was  a  state  legislature,  its  power 
was  exclusive. 

1  Hinds,  Precedents,  pp.  649,  653,  655; 
1  Bartlett,  Election  Cases,  p.  392;  Jame- 
son, Const.  Conventions,  p.  409. 

Such  referendum  as  is  provided  for  by 
art.  2,.  of  the  Constitution  of  Ohio,  is  not 
republican  in  form  for  the  reason  that  it 
seeks  to  provide  a  separate  popular  form 

241  V.  8. 


1915. 


OHIO  EX  BEL.  DAVIS  V.  HILDEBRANT. 


566 


of  goYemment,  wholly  independent  of  the 
representative  constitutional  government 
established  for  the  United  States,  and  in- 
consistent with  it. 

Re  Ihincan,  139  U.  S.  461,  35  L.  ed.  224, 
11  Sup.  Ct.  Rep.  573;  Luther  ▼.  Borden,  7 
How.  1,  12  L.  ed.  581;  6  Webster's  Works, 
p.  217;  4  Enc  U.  S.  Sup.  Ct.  Rep.  pp.  319, 
330,  and  notes;  Minor  v.  Happersett,  21 
Wall.  162,  175,  176,  22  L.  ed.  627,  630,  631 ; 
Downes  v.  Bidwell,  182  U.  S.  279,  45  L.  ed. 
1103,  21  Sup.  Ct  Rep.  770;  Von  Holat, 
Const.  Law,  236,  237;  Koehler  v.  Hill,  60 
Iowa,  543,  14  N.  W.  738,  15  N.  W.  609; 
Allyn's  Appeal,  81  Conn.  534,  23  LJI.A. 
(N.S.)  630,  129  Am.  St.  Rep.  225,  71  Atl. 
794;  Cooley,  Const.  Lim.  7th  ed.  p.  62;  3 
Elliot  Debates,  p.  55;  BUck,  Const.  Law,  2d 
ed.  262;  Rice  T.  Foster,  4  Harr.  (Del.)  479; 
Martin  ▼.  Martin,  20  N.  J.  Eq.  421 ;  United 
States  T.  Cruikshank,  02  U.  S.  549,  23  L.  ed. 
590;  M'CuUoch  T.  Maryland,  4  Wheat.  419, 
4  L.  ed.  604;  Cohens  v.  Virginia,  6  Wheat. 
418,  5  L.  ed.  294;  Pollock  ▼.  Farmers'  Loan 
&  T.  Co.  158  U.  S.  601,  39  L.  ed.  1108,  15 
Sup.  Ct.  Rep.  912;  McPherson  t.  Blacker, 
146  U.  S.  1,  36  L.  ed.  869,  13  Sup.  Ot.  Rep. 
^;  Rhode  Island  v.  Massachusetts,  12  Pet. 
657,  9  L.  ed.  1233;  12  Hamilton's  Works, 
28;  Federalist,  Nos.  10,  14,  48;  2  Elliot, 
Debates,  253;  3  Elliot,  Debates,  225,  233; 
•5  Elliot,  Debates,  136,  239;  Pacific  SUtes 
Teleph.  &  Teleg.  Co.  v.  Oregon,  223  U.  S. 
124,  125,  56  L.  ed.  377,  32  Sup.  Ct.  Rep. 
224 ;  State  t.  Swisher,  17  Tex.  448 ;  Clarke 
V.  Rochester,  28  N.  Y.  633;  Story,  Const. 
388;  Yearman,  Study  of  Government;  Bart- 
lett,  Election  Cases,  446;  Cooley,  Const 
Lim.  194;  15  Jefferson's  Writings,  452; 
11  Hamilton's  Works,  75,  101,  103. 

Whenever  an  action,  as  in  this  case,  in- 
Tolves  a  denial  of  individual  rights,  courts 
possess  the  right  and  the  duty  to  exclude 
the  operation  of  the  unconstitutional  provi- 
sion, and  to  regard  the  question  arising  as 
Judicial. 

Luther  v.  Borden,  7  How.  1,  54,  59,  12 
L.  ed.  581,  604,  606;  Pacific  States  Teleph. 
A  Teleg.  Co.  v.  Oregon,  223  U.  S.  127,  128, 
56  L.  ed.  377,  32  Sup.  Ct.  Rep.  220;  Forsyth 
T.  Hammond,  166  U.  S.  519,  41  L.  ed.  1100, 
17  Sup.  Ct.  Rep.  665;  Yick  Wo  t.  Hopkins, 
118  U.  S.  369,  30  L.  ed.  226,  6  Sup.  Ct.  Rep. 
1064;  Boyd  T.  Nebraska,  143  U.  S.  135,  6 
L.  ed.  103,  12  Sup.  Ct.  Rep.  375;  Coyle  t. 
Smith,  221  U.  S.  559,  55  L.  ed.  853,  31  Sup. 
•Ct  Rep.  688;  South  Carolina  t.  United 
States,  199  U.  S.  437,  454,  50  L.  ed.  261, 
266,  26  Sup.  Ct  Rep.  110,  4  Ann.  Cas.  737; 
Taylor  t.  Beckham,  178  U.  8.  548,  578,  44 
X.  ed.  1187,  1200,  20  Sup.  Ct  Rep.  800, 
1009;  Texas  v.  White,  7  Wall.  700,  19  L.  ed. 
^7;  Re  Duncan,  139  U.  S.  449,  461,  85  L. 
«d.  219,  224,  11  Sup.  Ct  Rep.  578. 
40  li.  ed. 


There,  necessarily,  can  be  but  one  legisla- 
ture of  a  state,  and  especially  as  empowered 
by  art.  1,  §  4,  of  the  United  States  Consti- 
tution, to  prescribe  the  "times,  places,  and 
manner"  of  electing  representatives. 

Pacific  States  Telei^  ft  Teleg.  Co.  t. 
Oregon,  223  U.  S.  120,  56  L.  ed.  377,  32  Sup. 
Ct  Rep.  224. 

Legislatures  are  the  creatures  of  the  Con- 
stitution. They  owe  their  existence  to  the 
Constitution. 

Luther  v.  Borden,  7  How.  66,  12  L.  ed. 
609;  Vanhome  t.  Dorrance,  2  Dall.  304,  1 
L.  ed.  391,  Fed.  Cas.  No.  16,857;  Vattel, 
Nations,  chap.  3,  §  34. 

Congress  must  always  act  "by  law"  in 
making  or  altering  the  regulations  of  a 
state  on  the  subject;  it  cannot,  "by  law," 
authorize  a  state  legislature  to  act  in  a 
particular  manner,  or  to  act  with  an  out- 
side agency  authorized  to  reject  its  action. 

Ex  parte  Siebold,  100  U.  S.  371,  25  L.  ed. 
717;  2  Hinds,  Precedents,  §  247,  p.  240; 
1  Bartlett,  Election  Cases,  p.  52. 

Mr.  Edward  G.  Turner,  Attorney  Gen- 
eral of  Ohio,  submitted  the  cause  for  de- 
fendants in  error: 

Does  the  language  of  U.  S.  Const,  art.  1, 
§  4,  refer  only  to  a  bicameral  body? 

1  Story,  Const.  §§  548,  560,  pp.  408,  416; 
1  Bryce,  American  Commonwealth,  pt  2, 
chap.  XL.  p.  484. 

Was  said  section  meant  to  refer  only  to  a 
representative  bodyt 

State  ex  rel.  Schrader  v.  Polley,  26  S.  D. 
5,  127  N.  W.  848. 

Is  the  question  presented  in  this  case  a 
justiciable  one? 

Richardson  v.  McChesney,  128  Ky.  363, 
129  Am.  St.  Rep.  299,  108  S.  W.  322,  218 
U.  S.  487,  54  L.  ed.  1121,  31  Sup.  Ct  Rep. 
43;  Pacific  States  Teleph.  ft  Teleg.  Co.  v. 
Oregon,  223  U.  S.  118,  56  L.  ed.  377,  32 
Sup.  Ct.  Rep.  224;  McPherson  v.  Blacker, 
146  U.  S.  1,  36  L.  ed.  869,  13  Sup.  Ct. 
Rep.  3. 

Messrs.  Edmond  H.  Moore  and  Timo- 
thy S.  Hogan  also  submitted  the  oauae  for 
defendants  in  error: 

The  case  of  McPherson  t.  Blacker,  146 
U.  S.  1,  36  L.  ed.  869,  13  Sup.  Ct  Rep.  3, 
really  supports  the  contention  of  the  de- 
fendants. 

If  the  governor  has  a  qualified  negative 
on  the  acts  of  the  legislature,  surely  the 
whole  electorate  have. 

Story,  Const  §  527. 

[566]  Mr.  Chief  Justice  White  delivered 
the  opinion  of  the  court: 

By  an  amendment  to  the  Constitution  of 
Ohio,  adopted  September  3d,  1912,  the  leg- 
islative power  was  expressly  declared  to  be 

ttIK 


56&-568 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


vested  not  only  in  the  senate  and  house  of 
representatives  of  the  state,  constituting 
the  general  assembly,  but  in  the  people,  in 
whom  a  right  was  reserved  by  way  of  ref- 
erendum to  approve  or  disapprove  by  popu- 
lar vote  any  law  enacted  by  the  general 
assembly.  And  by  other  constitutional  pro- 
visions the  machinery  to  carry  out  the  ref- 
erendum was  created.  Briefly  they  were 
this:  Within  a  certain  time  after  the  en- 
actment of  a  law  by  the  senate  and  house 
of  representatives,  and  its  approval  by  the 
governor,  upon  petition  of  6  per  centum 
of  the  voters,  the  question  of  whether  the 
law  should  become  operative  was  to  be  sub- 
mitted to  a  vote  of  the  people,  and,  if  ap- 
proved, the  law  should  be  operative;  and, 
if  not  approved,  it  should  have  no  effect 
whatever.     . 

In  May,  1915,  the  general  assembly  of 
Ohio  passed  an  act  redistricting  the  state 
for  the  purpose  of  congressional  elections, 
by  which  act  twenty-two  congressional  dis- 
tricts were  created,  in  some  respects  differ- 
ing from  the  previously  estabftshed  dis- 
tricts, and  this  act,  after  approval  by  the 
governor,  was  filed  in  the  office  of  the  secre- 
tary of  state.  The  requisite  number  of 
electors  imder  the  referendum  provision 
having  petitioned  for  a  submission  of  the 
law  to  a  popular  vote,  such  vote  was  taken 
and  the  law  was  disapproved.  Thereupon, 
in  the  supreme  court  of  the  state,  the  suit 
before  us  was  begun  against  state  election 
officers  for  the  purpose  of  procuring  a  man- 
damus, directing  them  to  disregard  the  vote 
of  the  people  on  the  referendum,  disap- 
proving the  law,  and  to  proceed  to  dis- 
charge their  duties  as  such  officers  in  the 
next  congressional  election,  upon  the  as- 
sumption that  the  action  by  way  of  refer- 
endum was  void,  and  that  the  law  which  was 
disapproved  was  [567]  subsisting  and  valid. 
The  right  to  this  relief  was  based  upon  the 
charge  that  the  referendum  vote  was  not 
and  could  not  be  a  part  of  the  legislative 
authority  of  the  state,  and  therefore  could 
have  no  influence  on  the  subject  of  the  law 
creating  congressional  districts  for  the  pur- 
pose of  representation  in  Congress.  In- 
deed, it  was  in  substance  charged  that  both 
from  the  point  of  view  of  the  state  Consti- 
tution and  laws  and  from  that  of  the  Con- 
stitution of  the  United  States,  especially 
§  4  of  article  1,  providing  that  "the  times, 
places  and  manner  of  holding  elections  for 
Senators  and  Representatives,  shall  be  pre- 
scribed in  each  state  by  the  legislature 
thereof;  but  the  Congress  may  at  any  time 
by  law,  make  or  alter  such  regulations,  ex- 
cept as  to  the  places  of  choosing  Senators;" 
and  also  from  that  of  the  provisions  of  the 
controlling  act  of  Congress  of  August  8, 
1011  (chap.  5,  37  Stat,  at  L.  13,  Comp.  Stat. 
1176 


1913,  §  15),  apportioning  representation 
among  the  states,  the  attempt  to  make  the 
referendum  a  component  part  of  the  legis- 
lative authority  empowered  to  deal  with  the 
election  of  members  of  Congress  was  abso- 
lutely void.  The  court  below  advers*»ly  dis- 
posed of  these  contentions,  and  held  that 
the  provisions  as  to  referendum  were  a  part 
of  the  legislative  power  of  the  state,  made 
so  by  the  Constitution,  and  that  nothing  in 
the  act  of  Congress  of  1911,  or  in  the  con- 
stitutional provision,  operated  to  the  con- 
trary, and  that  therefore  the  disapproved 
law  had  no  existence  and  was  not  entitled 
to  be  enforced  by  mandamus. 

Without  going  into  the  many  irrelevant 
points  which  are  pressed  in  the  argument, 
and  the  various  inapposite  authorities  cited^ 
although  we  have  considered  them  all,  we 
think  it  is  apparent  that  the  whole  case 
and  every  real  question  in  it  will  be  dis- 
posed of  by  looking  at  it  from, three  points 
of  view, — ^the  state  power,  the  power  of 
Congress,  and  the  operation  of  the  provi- 
sion of  the  Constitution  of  the  United 
States,  referred  to. 

1.  As  to  the  state  power,  we  pass  from  its 
consideraticm,  [568]  since  it  is  obvious  that 
the  decision  below  is  conclusive  on  that  sub- 
ject, and  makes  it  clear  that,  so  far  as  the 
state  had  the  power  to  do  it,  the  referendum 
constituted  a  part  of  the  state  Constitution 
and  laws,  and  was  contained  within  the 
legislative  power;  and  therefore  the  claim 
that  the  law  which  was  disapproved  and 
was  no  law  under  the  Constitution  and 
laws  of  the  state  was  yet  valid  and  opera- 
tive is  conclusively  established  to  be  want- 
ing in  merit. 

2.  So  far  as  the  subject  may  be  influenced 
by  the  power  of  Congress,  that  is,  to  the  ox- 
tent  that  the  will  of  Congress  has  been  ex- 
pressed on  the  subject,  we  think  the  case  ia 
equally  without  merit.  We  say  this  because 
we  think  it  is  clear  that  Congress,  in  1911, 
in  enacting  the  controlling  law  concerning 
the  duties  of  the  states,  through  their  legis- 
lative authority,  to  deal  with  the  subject  of 
the  creation  of  congressional  districts,  ex- 
pressly modified  the  phraseology  of  the  pre- 
vious acts  relating  to  that  subject  by  'n- 
serting  a  clause  plainly  intended  to  provide 
that  where,  by  the  state  Constitution  and 
laws,  the  referendum  was  treated  as  part  of 
the  legislative  power,  the  power  as  thus 
constituted  should  be  held  and  treated  to  be 
the  state  legislative  power  for  the  purpoae 
of  creating  congressional  districts  by  law. 
This  is  the  case  since,  under  the  act  of  Con- 
gress dealing  with  apportionment,  which 
preceded  the  act  of  1911,  by  §  4  it  was  com- 
manded that  the  existing  districts  in  a  state 
should  continue  in  force  "until  the  legis- 
lature of  such  state,  in  the  manner  herein 

241   U.  8. 


I'Jio. 


BKOWN  V.  PACIFIC  COAST  COAL  CO. 


668-571 


prescribed,  shall  redistrict  such  state"  (act 
of  February  7,  1891,  chap.  116,  26  Stat,  at 
L.  735) ;  while  in  the  act  of  1911  there  was 
substituted  a  provision  that  the  redistrict- 
ing  should  be  made  by  a  state  "in  the  man- 
ner provided  by  the  laws  thereof."  And 
the  legislative  history  of  this  last  act  leaves 
no  room  for  doubt  that  the  prior  words  were 
stricken  out  and  tlie  new  words  inserted 
for  the  express  purpose,  in  so  far  as  Congress 
had  power  to  do  [669]  it,  of  excluding  the 
possibility  of  making  the  contention  as  to 
referendum  which  is  now  urged.  Cong.  Rec. 
vol.  47,  pp.  3436,  3437,  3507. 

3.  To  the  extent  that  the  contention  urges 
that  to  include  the  referendum  within  state 
legislative  power  for  the  purpose  of  appor- 
tionment is  repugnant  to  S  4  of  article  1 
of  the  Constitution  and  hence  void,  even  if 
sanctioned  by  Congress,  because  beyond  the 
constitutional  authority  of  that  body,  and 
hence  that  it  is  the  duty  of  the  judicial 
power  so  to  declare,  we  again  think  the  con- 
tention is  plainly  without  substance,  for  the 
following  reasons:  It  must  rest  upon  the 
assumption  that  to  include  the  referendum 
in  the  scope  of  the  legislative  power  is  to 
introduce  a  virus  which  destroys  that  pow- 
er, which  in  effect  annihilates  representa- 
tive government,  and  causes  a  state  where 
such  condition  exists  to  be  not  republican 
in  form,  in  violation  of  the  guaranty  of  the 
Constitution.  Const.  §  4,  art.  4.  But  the 
proposition  and  the  argument  disregard  the 
settled  rule  that  the  question  of  whether 
that  guaranty  of  the  Constitution  has  been 
disregarded  presents  no  justiciable  contrb- 
vcrsy,  but  involves  the  exercise  by  Congress 
pf  the  authority  vested  in  it  by  the  Con- 
stitution. Pacific  States  Teleph.  &  Teleg. 
Co.  V.  Oregon,  223  U.  S.  118,  56  L.  ed.  377, 
32  Sup.  Ct.  Rep.  224.  In  so  far  as  the 
proposition  challenges  the  power  of  Con- 
gress, as  manifested  by  the  clause  in  the  act 
of  1911,  treating  the  referendum  as  a  part 
of  the  legislative  power  for  the  purpose  of 
apportionment,  where  so  ordained  by  the 
state  Constitutions  and  laws,  the  argument 
but  asserts,  on  the  one  hand,  that  Congress 
had  no  power  to  do  that  which,  from  the 
point  of  view  of  §  4  of  article  1,  previously 
considered,  the  Constitution  expressly  gave 
the  right  to  do.  In  so  far  as  the  proposi- 
tion may  be  considered  as  asserting,  on  the 
other  hand,  that  any  attempt  by  Congress 
to  recognize  the  referendum  as  a  part  of 
the  legislative  authority  of  a  state  is  ob- 
noxious to  a  republican  form  of  government 
as  provided  by  §  4  [570]  of  article  4,  the  con- 
tention necessarily  but  reasserts  the  propo- 
sition on  that  subject  previously  adversely 
disposed  of.  And  that  this  is  the  inevitable 
result  of  the  contention  is  plainly  manifest, 
since  at  best  the  proposition  comes  to  the 
60  It,  ed. 


assertion  that  because  Congress,  upon  whom 
the  Constitution  has  conferred  the  exclu- 
sive authority  to  uphold  the  guaranty  of 
a  republican  form  of  government,  has  done 
something  which  it  is  deemed  is  repugnant 
to  that  guaranty,  therefore  there  was  auto- 
matically created  judicial  authority  to  go 
beyond  the  limits  of  judicial  power,  and,  in 
doing  so,  to  usurp  congressional  power,  on 
the  ground  that  Congress  had  mistakenly 
dealt  with  a  subject  which  was  within  its 
exclusive  control,  free  from  judicial  inter- 
ference. 

It  is  apparent  from  these  reasons  that 
there  must  either  be  a  dismissal  for  want 
of  jurisdiction,  because  there  is  no  power  to 
re-examine  the  state  questions  foreclosed  by 
the  decision  below,  and  because -of  the  want 
of  merit  in  the  Federal  questions  relied  up- 
on, or  a  judgment  of  affirmance,  it  being  ab- 
solutely indifferent,  as  to  the  result,  which 
of  the  two  be  applied.  In  view,  however,  of 
the  subject-matter  of  the  controversy  and 
the  Federal  characteristics  which  inhere  in 
it,  we  are  of  opinion,  applying  the  rule  laid 
down  in  Swafford  ▼.  Templeton,  185  U.  S. 
487,  46  L.  ed.  1005,  22  Sup.  Ct.  Rep.  783, 
the  decree  proper  to  be  rendered  is  one  of 
affirmance,  and  such  a  decree  is  therefore  or- 
dered. 

Affirmed* 


[671]  STANLEY  BROWN,  Petitioner, 

▼. 

PACIFIC  COAST  COAL  COMPANY. 
(See  S.  C.  Reporter's  ed.  671-574.) 

Master  and  serrant  —  fellow  serrant  — 
delegation  of  master^s  duty. 

As  construed  by  the  state  courts. 
Wash.  Laws  1897,  chap.  45,  imposes  an  ab- 
solute and  nondelegable  duty  upon  owners 
or  operators  of  coal  mines  to  inspect,  pre- 
vent, and  remove  any  accumulation  of  gas, 
so  that  a  fire  boss,  one  of  whose  duties  is 

Note. — As  to  master's  liability  for  breach 
of  nondelegable  duties  by  superior  servant — 
see  note  to  O'Neil  t.  Great  Northern  R.  Co. 
51  L.R.A.  588. 

As  to  what  duties  are  deemed  to  be  non- 
delegable— see  note  to  Quigley  t.  Levering, 
54  L.RJI.  63. 

As  to  assignability  of  duty  of  inspec- 
tion— see  note  to  Walkowski  ▼.  Penokee  & 
6.  Consol.  Mines,  41  L.R^.  100. 

As  to  what  servants  are  deemed  to  be  in 
the  same  common  employment  apart  from 
statute,  where  no  questions  as  to  Yice  prin- 
cipalship  arise— se^  note  to  Sofield  ▼.  Gug- 
genheim Smelting  Co.  50  LJLA.  417. 

On  statutory  duty  to  ventilate  and  keep 
mine  clear  from  gas — see  note  to  Deserant 
▼.  Cerillos   Coal  B.  Go.  44  L.  ed.  U.  S. 

1127. 

1177 


572 


SUPREME  COURT  OF  THE  UNITED  STATEa 


Oct.  Teem, 


to  test  for  gas,  is  not  a  fellow  servant  of 
the  miners,  so  far  as  he  is  engaged  in  the 

Ferformance  of  that  duty. 
For  other  cases,  tee  Master  and  Serrant,  II. 
d,  2;  II.  d,  6,  d.  In  Digest  Sop.  Ct.  1908.] 

[No.  303.] 

Argued  March  14,  1916.    Decided  June  12, 

1016. 

ON  WRIT  of  CertioraH  to  the  United 
States  Circuit  Court  of  Appeals  for  the 
Ninth  Circuit  to  review  a  judgment  which 
reversed  a  judgment  of  the  District  Court 
for  the  Western  District  of  Washington  in 
favor  of  plaintiff  in  an  action  for  personal 
injuries  received  by  a  miner  from  the  ex- 
plosion of  gas.  Judgment  reversed,  and 
judgment  of  District  Court  affirmed. 

See  same  case  below,  128  C.  C.  A.  247,  211 
Fed.  860;  on  rehearing,  130  C.  C.  A.  625, 
214  Fed.  255. 

The  facts  are  stated  in  the  c^inion. 

Mr.  U.  R.  Iie»  argued  the  cause,  and 
Messrs.  Charles  F.  Consaul  and  Charles  C. 
Heltman  filed  a  brief  for  petitioner: 

The  provisions  of  the  Washington  stat- 
utes are  mandatory  and  nondelegable. 

CosU  V.  Pacific  Coast  Co.  26  Wash.  138, 
66  Pac.  398;  Czarecki  v.  SeatUe  &  S.  F.  R. 
A  Nav.  Co.  30  Wash.  288,  70  Pac.  750; 
Delaski  v.  Northwestern  Improv.  Co.  61 
Wash.  260,  112  Pac.  341;  Nalewaja  v. 
Northwestern  Improv.  Co.  63  Wash.  303, 
115  Pac.  847;  Deserant  v.  Cerillos  Coal  R. 
Co.  178  U.  S.  409,  44  L.  ed.  1127,  20  Sup. 
Ot.  Rep.  967,  20  Mor.  Min.  Rep.  573. 

Mr.  C  H.  Farrell  argued  the  cause,  and, 
with  Messrs.  W.  B.  Stratton,  J.  H.  Kane, 
and  Stanley  J.  Padden,  filed  a  brief  for  re- 
spondent : 

Shot  Lighter  Rigghi  was  a  fellow  servant 
of  Stanley  Brown  at  common  law. 

Alaska  Treadwell  Gold  Min.  Co.  t. 
Whelan,  168  U.  S.  86,  42  L.  ed.  390,  18  Sup. 
Ct.  Rep.  40;  Quincy  Min.  Co.  v.  Kltts,  42 
Mich.  34,  3  N.  W.  240,  16  Am.  Neg.  Cas. 
58;  Coal  k  Min.  Co.  v.  Clay  (Consolidated 
Coal  &  Min.  Co.  v.  Floyd)  51  Ohio  St.  542, 
26  L JIJL  848,  38  N.  E.  610 ;  Davis  v.  Trade 
Dollar  Consol.  Min.  Co.  54  C.  C.  A.  636,  117 
Fed.  122;  Browne  v.  King,  40  C.  C.  A.  545, 
100  Fed.  561;  What  Cheer  Coal  Co.  v.  John- 
son, 6  C.  C.  A.  148,  12  U.  8.  App.  490,  56 
Fed.  810;  Westinghouse,  C.  K.  ft  Co.  v. 
Callaghan,  19  L.RJl.(N.S.)  361,  83  C  C.  A. 
660,  155  Fed.  307 ;  Minneapolis  v.  Lund  in,  7 
C.  C.  A.  344,  19  U.  8.  App.  245,  58  Fed. 
525;  American  Bridge.  Co.  v.  Seeds,  11 
L.R.A.(N.S.)  1041,  75  C.  C.  A.  407,  144 
Fed.  605;  Russell  Creek  Coal  Co.  v.  Wells, 
06  Va.  416,  31  S.  E.  614;  Stephens  v.  Doe, 
73  CaL  26,  14  Pae.  378. 
1176 


He  was  also  a  fellow  servant  under  the 
Washington  statute. 

Hughes  V.  Oregon  Improv.  Co.  20  Wash. 
294,  55  Pae.  U9;  1  Shearm.  ft  Redf.  Neg. 
4th  ed.  §  235;  Colorado  Coal  ft  L  Co.  v. 
Lamb,  6  Colo.  App.  255,  40  Pac  251;  Whsi 
Cheer  Coal  Co.  v.  Johnson,  6  C.  C.  A.  148, 
12  U.  &  App.  490,  56  Fed.  810;  Lehigh 
Valley  Coal  Co.  v.  Jones,  86  Pa.  432,  10 
Mor.  Min.  Rep.  30;  Brazil  ft  C.  Coal  Co.  v. 
Cain,  98  Ind.  282;  Peterson  v.  Whitebresst 
Coal  ft  Min.  Co.  50  Iowa,  673,  32  Am.  Rep. 
143,  11  Mor.  Min.  Rep.  1;  Baltimore  ft  0. 
R.  Co.  V.  Baugh,  149  U.  S.  368,  37  L.  ed. 
772,  13  Sup.  Ct.  Rep.  914;  Northern  P.  R. 
Oo.  V.  Hambly,  154  U.  8.  349,  38  L.  ed. 
1009,  14  Sup.  Ct.  Rep.  983;  Northern  P.  R. 
Ca  V.  Peterson,  162  U.  &  346,  40  L.  ed. 
994,  16  Sup.  Ct.  Rep.  843;  Northern  P.  R. 
Co.  V.  Charless,  162  U.  8.  359,  40  L.  ed.  909, 
16  Sup.  Ct  Rep.  848;  Dollar  v.  Northwest- 
cm  Improv.  Co.  72  Wash.  1,  129  Pac.  578; 
Sommer  v.  Carbon  Hill  Coal  Co.  46  C.  C.  A. 
255,  107  Fed.  230;  Pacific  Coast  Coal  Co. 
V.  Brown,  128  C.  C.  A.  247,  211  Fed.  860, 
130  C.  C.  A.  625,  214  Fed.  255. 

[572]  Mr.  Justice  Holmes  delivered  the 
opinion  of  the  court: 

This  is  an  action  for  personal  injuries 
caused  to  the  petitioner,  the  plaintiff,  a 
miner,  by  an  explosion  of  gas  in  a  coal 
mine,  in  consequence,  it  is  alleged,  of  the 
defendant's  neglect  of  its  duty  so  to  ven- 
tilate the  mine  as  to  make  an  explosion  im- 
possible. The  trial  judge  left  to  the  jury 
questions  of  the  plaintiff's  contributory 
negligence  or  assumption  of  risk,  but  in- 
structed them  that  the  law  requir^  the  de- 
fendant to  provide  a  sufficient  amount  of 
ventilation;  that  the  duty  of  the  inspec- 
tion, prevention,  and  removal  of  any  ac- 
cumulation of  gas  was  a  personal  duty  of 
the  defendant  that  could  not  be  delegated; 
and  that  an  employee,  one  of  whose  duties 
was  to  test  for  gas,  was  not  a  fellow  servant 
of  the  miners  so  far  as  he  was  engaged  in 
the  performance  of  that  duty.  There  was 
a  verdict  for  the  plaintiff,  which  was  set 
aside  by  the  circuit  court  of  appeals.  128 
C.  C.  A.  247,  211  Fed.  869;  130  a  C.  A. 
625,  214  Fed.  255. 

The  duty  of  the  fire  boss  who  exploded 
the  gas  was  to  test  for  gas  as  well  as  to 
fire  the  shots  in  blasting,  which  last  he  was 
about  to  do.  It  is  unnecessary  to  go  into 
further  details,  as  the  only  matter  that 
requires  discussion  is  whether  the  circuit 
court  of  appeals  was  right  in  reversing  the 
judgment  on  the  ground  that  this  man  was 
a  fellow  servant  of  the  plaintiff,  and  that 
the  defendant's  duty  to  secure  ventilation 
was  not  absolute.  The  statute  of  1897, 
which  was  in  force  at  the  time  of  the  ao- 

S41  V.  8. 


1915. 


SUPREME  LODGE,  K.  OF  P.  ▼.  MIMS. 


672-674 


«ident,  September  7,  1910,  enacts  that  the 
owner  or  operator  of  every  coal  mine  ''shall 
provide  in  every  coal  mine  a  good  and  suffl- 
eient  amount  of  ventilation  for  such  per- 
sons and  animals  as  may  be  employed 
therein/'  fixing  a  minimum  amount,  "and 
said  air  must  be  made  to  circulate  through 
the  shafts,  levels,  stables,  and  working  places 
of  each  mine  and  on  the  traveling  roads 
to  and  from  all  [573]  such  working  places." 
Then  the  division  of  mines  into  districts  or 
splits,  and  the  number  of  men  to  be  em-  j 
ployed  in  each,  are  provided  for,  and  then 
the  act  goes  on:  "Each  district  or  split 
shall  be  ventilated  by  a  separate  and  dis- 
tinct current  of  air,  conducted  from  the 
down:cast  through  said  district,  and  thence 
directed  to  the  up-cast.  ...  In  all 
mines  where  fire  damp  is  generated,  every 
working  place  shall  be  examined  every 
morning  with  a  safety  lamp  by  a  com- 
petent person,  and  a  record  of  such  exami- 
nation shall  be  entered  by  the  person  mak- 
ing tlie  same  in  a  book,"  etc.  Laws  of 
1897,  chap.  45,  §  4;  Bal.  Wash.  Code,  i 
3165;  Rem.  &  Bal.  Code,  §  7381. 

In  the  ease  of  a  similar  accident  occur- 
ring tmder  the  same  law,  the  supreme  court 
aaid:  "The  duty  of  inspection,  prevention, 
and  removal  of  any  accumulation  of  gas  is 
imposed  on  the  coal  company.  This  duty  is 
personal,  and  cannot  be  delegated.  .  .  . 
The  gas  tester,  under  the  facts  in  this  case, 
was  not  a  fellow  servant  with  the  plaintiff. 
He  was  the  representative  of  principal 
duties  of  the  defendant."  The  refusal  of 
the  instruction  that  the  gas  tester  was  a 
fellow  servant  with  the  plaintiff,  a  miner, 
was  upheld.  Costa  v.  Pacific  Coast  Co.  26 
Wash.  138,  142,  143,  66  Pac.  398.  The  lan- 
guage of  this  case  was  quoted  and  the  same 
principle  applied  in  Czarecki  v.  Seattle  & 
S.  F.  R.  &  Nav.  Co.  30  Wash.  288,  294,  295, 
70  Pac.  750.  And  the  same  words  were  re- 
peated by  the  judge  to  the  jury  in  the  pres- 
ent case. 

When  this  case  came  before  the  circuit 
court  of  appeals,  it  seems  to  have  been 
thought  that  Costa  ▼.  Pacific  Coast  Co. 
arose  under  an  earlier  statute.  Upon  a 
petition  for  rehearing,  the  court  merely 
stated  that  no  decision  of  the  supreme  court 
had  been  found  that  held  the  person  re- 
quired to  examine  the  working  places  every 
morning  to  be  the  representative  of .  the 
nuister,  and  that  the  fire  boss  must  be  re- 
garded as  a  fellow  servant  with  the  plaintiff. 
We  are  unable  to  reconcile  this  view  with 
the  [574]  language  that  we  have  quoted.  It 
now  is  suggested  that  there  is  a  distinction 
between  the  point  decided  there  and  here, 
the  failure  there  having  been  to  warn  the| 


nice  inquiry  upon  this  points  The  state- 
ments were  statements  of  the  principle  of 
the  decision,  and  it  was  the  duty  of  the  cir- 
cuit court  of  appeals  to  follow  them.  Still 
less  does  it  matter  in  a  case  like  this,  if, 
as  is  said,  the  latter  court  had  decided 
otherwise  at  an  earlier  time. 

Concerning  the  facts  to  which  the  ruling 
here  dealt  with  applied,  it  is  enough  to  say 
that  the  evidence  warranted  a  finding  by  the 
jury  that  the  defendant  had  neglected  the 
duties  absolutely  imposed  upon  it,  with- 
out now  going  into  the  details  of  the  differ- 
ent views  that  might  have  been  taken.  The 
other  matters  that  have  been  argued  here, 
as  to  the  plaintiff's  contributory  negligence, 
etc.,  need  not  be  mentioned  further  than  to 
say  that  we  see  no  ground  in  them  for  a 
different  result  from  that  which  we  have 
reached. 

Judgment  reversed. 

Judgment  of  District  Court  affirmed. 


miner,  and  that  the  remarks  of  the  court 
were  obiter  dicta.  We  shall  go  into  no 
60  li.  ed. 


SUPREME  LODGE,  KNIGHTS  OP  PY- 
THIAS,  Plff.  in  Err., 

V. 

S.  MIMS. 

(See  S.  C.  Reporter's  ed.  674-582.) 

Error  to  state  court  —  Federal  question 
—  rights  asserted  under  Federal 
charter. 

1.  The  Federal  Supreme  Court  has 
jurisdiction  of  a  writ  of  error  to  a  state 
court  to'  review  a  judgment  in  favor  of 
plaintiff  in  a  suit  which  necessarily  turns 
on  the  construction  of  an  act  of  Congress 
incorporating  the  defendant,  under  which 
the  latter  justifies. 

[For  other  cases,  see  Appeal  and  Error,  1751- 
1797,   In   Digest   Sup.   Ct.   1908.1 

Note. — On  the  general  subject  of  writs 
of  error  from  United  States  Supreme  Court 
to  state  courts — see  notes  to  Martin  v. 
Hunter,  4  L.  ed.  U.  S.  97 ;  Hamblin  v.  West- 
ern Land  Co.  37  L.  ed.  U.  S.  267;  Re 
Buchanan,  39  L.  ed.  U.  S.  884,  and  Kipley 
V.  Illinois,  42  L.  ed.  U.  S.  998. 

On  what  adjudications  of  state  courts 
can  be  brought  up  for  review  in  the  Su- 
preme Court  of  the  United  States  by  writ 
of  error  to  those  courts— see  note  to  Apex 
Transp.  Co.  v.  Oarbade,  62  LJt.A.  613. 

On  how  and  when  questions  must  iSe 
raised  and  decided  in  a  state  court  in  order 
to  make  a  case  for  a  writ  of  error  from 
the  Supreme  Court  of  the  United  Statea*- 
see  note  to  Mutual  L.  Ins.  Co.  t.  McGrew, 
63  L.R.A.  33. 

On  the  right  of  mutual  benefit  association 
to  raise  rates — see  notes  to  Rejmolds  ▼. 
Supreme  Council,  R.  A.  7  L.R.A.(N.S.) 
1154;  Dowdall  ▼.  Supreme  Council,  C.  M. 
B.  A.  31  L.R.A.(N.S.)  417,  and  Thomas  t. 
KnighU  of  Maccabees,  L.RJL1916>    ''^'^ 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tkru, 


Benerolent  societies  —  re^^rganlsation 
i.  membership  in  new  corporation. 

2.  A  member  of  a  voluntary  tmincor- 
porated  fraternal  and  benevolent  associa- 
tion, the  successor  of  an  earlier  corporation, 
became,  upon  incorporation  under  the  act 
of  June  20,  1894  (28  SUt.  at  L.  96,  chap. 
119),  a  member  of  the  new  corporation  by 
virtue  of  his  assent  to  §  8  of  that  act, 
providing  that  all  claims,  accounts,  things 
in  action,  or  other  matters  of  business  of 
whatever  nature,  now  existing,  for  or 
against  the  present  association,  shall  sur- 
vive and  succeed  to  and  against  tiie  new 
corporation. 

Benevolent  societies  —  changes  in  con- 
stitution —  increase  of  rates. 

3.  The  right  of  a  fraternal  and  benevo- 
lent order,  under  its  charter  of  June  29, 
1894  (28  SUt.  at  L.  96,  chap.  119),  §  4, 
to  amend  its  constitution  at  pleasure,  pro- 
vided that  such  constitution  or  amendments 
thereof  do  not  conflict  with  the  laws  of  the 
United  States  or  of  any  state,  extends  to 
an  increase  in  its  insurance  rates. 

Benevolent  societies  •*  changes  in  con- 
stitution •*  Increase  of  rates. 

4.  A  benevolent  and  fraternal  order 
having  power  to  alter  and  amend  its  con- 
stitution at  will  may  raise  its  inturance 
rates,  notwithstanding  a  clause  in  its  laws 
that  monthly  payments  of  a  member  of  the 
endowment  rank  shall  continue  the  same  so 
long  as  his  membership  continues,  since 
this  clause  is  not  to  be  regarded  as  a  con- 
tract, but  as  a  regulation,  subject  to  the 
possibility  that  a  raise  in  rates  may  be 
necessary  in  order  to  pay  benefits. 

Benevolent  societies  •»  re-organlsatlon 
—increase  in  rates. 

6.  The  assumption,  under  the  act  of 
June  29,  1894  (28  Stat,  at  L.  96,  chap. 
119),  §  3,  investing  the  fraternal  order  in- 
corporated by  that  act  with  all  "claims,  ac- 
counts, debts,  things  in  action,  or  other 
matters  of  business  of  whatever  nature  now 
existing  for  or  against  the  present"  unin- 
corporated association,  of  an  existing  in- 
surance contract  with  a  member,  cannot  be 
deemed  the  assumption  of  a  contract  for 
immutable  assessments,  where  both  the  old 
and  new  organizations  possessed  the  power 
to  amend  their  laws. 

[Ko.  346.] 

Argued  May  1  and  2,  1916.    Decided  June 

12,  1916. 

IN  ERROR  to  the  Court  of  Civil  Appeals 
for  the  Fifth  Supreme  Judicial  District 
of  the  State  of  Texas  to  review  a  judgment 
which  affirmed,  with  a  modification,  a  judg- 
ment of  the  District  Court  of  Dallas  Coun- 
ty, in  that  state,  in  favor  of  plaintiff  in  a 
suit  against  a  fraternal  and  benevolent  or- 
der to  recover  back  the  dues  paid  by  him  as 
a  member.    Reversed. 

See  same  case  below,  —  Tex.  Civ.  App.  — , 
167  S.  W.  836. 

The  facts  are  stated  in  the  opinion. 
1180 


Messrs.  M.  M.  Crane  and  H.  P.  Brown 

argued  the  cause,  and,  with  Messrs.  Edwin 
Crane,  James  P.  Goodrich,  Ward  H.  Wat- 
son, James  £.  Watson,  and  Sol.  H.  Esarey, 
filed  a  brief  for  plaintiff  in  error: 

The  charter  of  the  plaintiff  in  error  is  a 
public  statute  of  the  United  States.  By 
virtue  of  the  Constitution  of  the  United 
States,  this  court  is  the  final  arbiter  of  all 
questions  relating  thereto  and  depending 
thereon. 

Texas  &  P.  R.  Co.  v.  HiU,  237  U.  S.  208, 
59  L.  ed.  918,  35  Sup.  Ct.  Rep.  575;  Texas 
ft  P.  R.  Co.  V.  Marcus,  237  U.  S.  215,  59 
L.  ed.  924,  35  Sup.  Ct.  Rep.  578. 

The  judicial  construction  of  a  charter  of 
a  Federal  corporation  constitutes  a  suit 
arising  imder  tlie  laws  of  the  United  States. 

Pacific  R.  Removal  Cases,  115  U.  S.  1,  29 
L,  ed.  319,  15  Sup.  Ct.  Rep.  1113;  Union  P. 
R.  Co.  V.  Harris,  158  U.  S.  326,  39  L.  ed. 
1003,  15  Sup.  Ot  Rep.  843,  10  Am.  Neg 
Gas.  585. 

The  mere  acceptance  of  dues  or  premiums 
by  the  plaintiff  in  error  did  not  constitute 
an  assumption  of  the  contract  or  policy 
sued  upon. 

Eddy  V.  Hinnant,  82  Tex.  354,  18  S.  W. 
562;  Hutchinson  v.  International  &  G.  X. 
R.  Co.  —Tex.  av.  App.  — ,  111  8.  W.  1106. 

The  policy  sued  upon  and  application 
therefor,  the  old  policies  for  which  it  was 
substituted,  the  constitution  and  by-laws, 
construed  together,  gave  to  the  old  Supreme 
Lodge  the  right  to  raise  the  rates  in  the 
event  it  should  become  necessary  so  to  do. 

Union  P.  R.  Co.  v.  Myers,  115  U.  S  1, 
25,  29  L.  ed.  319,  327,  5  Sup.  Ct.  Rep.  1113; 
Messer  v.  Grand  Lodge,  A.  0.  U.  W.  180 
Mass.  321,  62  N.  E.  252;  Wineland  v. 
Knights  of  Maccabees,  148  Mich.  608,  112 
N.  W.  696;  Williams  v.  Supreme  Council, 
C.  M.  B.  A.  152  Mich.  1,  115  N.  W.  1060; 
Reynolds  v.  Supreme  Council,  R.  A.  192 
Mass.  150,  7  LJLA.(N.S.)  1154,  78  N.  E. 
129,  7  Aim.  Cas.  776;  Supreme  Lodge,  K. 
P.  V.  Knight,  117  Ind.  489,  3  L.RJ^.  409,  20 
N.  E.  479;  Barbot  v.  Mutual  Reserve  Fund 
Life  Asso.  100  Ga.  681,  28  S.  E.  498;  Mu- 
tual Reserve  Fund  Life  Asso.  v.  Taylor,  99 
Va.  208,  37  S.  E.  854;  Richmond  v.  Supreme 
Lodge,  O.  M.  P.  100  Mo.  App.  8,  71  S.  W. 
736;  Miller  v.  National  Council,  K.  L.  S.  69 
Kan.  234,  76  Pac.  830;  Head  Camp,  P.  J. 
W.  W.  V.  Woods,  34  Colo.  1,  81  Pac.  261; 
Shepperd  v.  Bankers'  Union,  77  Neb.  85, 
108  N.  W.  188,  110  N.  W.  1019 ;  Conner  v. 
Supreme  Commandery,  G.  C.  117  Tenn.  549, 
97  S.  W.  306;  Champion  v.  Hannahan,  138 
III.  App.  387;  Pierce  v.  Bankers'  Union,  140 
111.  App.  495;  Mock  v.  Supreme  Council,  R. 
A.  121  App.  Div.  474,  106  N.  Y.  Supp.  165; 
Fullen wider  v.  Supreme  C!ouncil,  R.  L.  73 
III.  331,  180  111.  621,  72  Am.  St.  Rep.  239, 

241   U.  8. 


1915. 


SUPREME  LODGE,  K.  OF  P.  ▼.  MIMS. 


M  N.  E.  485;  Thomas  ▼.  Knights  of  Macca- 
bees, 85  Wash.  665,  LJLA.1916A,  750,  149 
Pac  7;  Bartram  ▼.  Supreme  Council,  R.  A. 
6  Ont.  Week.  Rep.  404;  Haydel  v.  Mutual 
Rsseire  Fund  Life  Asso.  98  Fed.  200,  44 
C.  C.  A.  169,  104  Fed.  718. 

The  defendant  in  error  is  now  estopped 
from  denying  the  right  of  plaintiff  in  error 
to  increase  the  rates  as  it  did  in  1910,  if 
necessary,  because  he  had  acquiesced  in  that 
right  and  concurred  with  the  old  corpora- 
tion in  the  fact  that  it  had  such  power. 

Windand  t.  Knights  of  Maccabees,  148 
Mich.  608,  112  K.  W.  696;  Qibbs  ▼.  Knighto 
of  Pythias,  178  Mo.  App.  34,  156  S.  W.  11; 
Manning  ▼.  San  Antonio  Club,  63  Tex.  166, 
51  Am.  Rep.  639;  29  Cyc.  70. 

When  an  old  corporation  issues  a  policy 
or  a  contract,  and  a  new  corporation  is  or- 
ganized and  receives  the  dues  on  the  old 
certificates  issued  by  its  predecessor,  the 
obligation  thus  existing  by  reason  of  the 
dues  received  must  be  measured  and  the 
liabilities  must  be  fixed  by  the  laws  of  the 
corporation. 

Bollman  ▼.  Supreme  Lodge,  K.  H.  — 
Tex.  Civ.  App.  — ,  53  S.  W.  722,  54  S.  W. 
246;  Wineland  v.  Knights  of  Maccabees, 
148  Mich.  608,  112  N.  W.  696;  Gibbs  v. 
Knights  of  Pythias,  supra. 

Any  liability  under  the  certificate  sued 
on  must  be  treated  as  if  it  were  a  liability 
under  a  certificate  issued  by  the  new  cor- 
poration, and  limited  and  controlled  by  the 
new   corporation's   charter   and  by-laws. 

Watscm  V.  National  Life  &  T.  Co.  Ill 
O.  C.  A.  134,  189  Fed.  872;  Niblack,  Ben. 
Soc.  2d  ed.  §  18,  pp.  33,  34;  29  Cyc  70. 

Messrs.  James  E.  Watson,  H.  P.  Brown, 
M.  M.  Crane,  and  Edward  Crane  filed  a 
separate  brief  for  plaintiff  in  error: 

The  old  corporation  issuing  the  contract 
sued  on  reserved  the  right  to  amend  its  by- 
laws, and,  if  necessary,  to  re-rate  its  mem- 
bership. 

Kom  V.  Mutual  Assur.  Soc  6  Cranch, 
195,  3  L.  ed.  196;  Thomas  v.  Knights  of 
Maccabees,  85  Wash.  665,  L.R.A.1916A, 
750,  149  Pac.  7;  Newman  v.  Supreme 
Lodge,  K.  P.  —  Miss.  — ,  L.R.A.1916C,  1051, 
70  So.  241;  Supreme  Lodge,  K.  H.  v.  Bieler, 
—  Ind.  — ,  105  N.  E.  244;  Supreme  Com- 
mandery,  K.  G.  R.  v.  Ainsworth,  71  Ala. 
436,  46  Am.  Rep.  332;  Barbot  v.  Mutual 
Reserve  Fund  life  Asso.  100  Ga.  681,  28  S. 
E.  498;  Haydel  v.  Mutual  Reserve  Fund 
Life  Asso.  98  Fed.  200;  Mutual  Reserve 
Fund  Life  Asso.  t.  Taylor,  99  Va.  208,  37 
S.  £.  854;  Miller  v.  National  Council,  K.  L. 
S.  69  Kan.  234,  76  Pac.  830. 

The  by-law  fixing  the  level  premium  rate 
is  no  more  sacred  than  the  provision  in  the 
by-laws  and  charter  authorising  it  to 
•0  L.  ed. 


change  these  by-laws.  The  level  rate  pre- 
mium was  subordinate  to  the  power  to 
change  in  the  ease  of  necessity. 

Kom  V.  Mutual  Assur.  Soc.  6  Cranch, 
195,  3  L.  ed.  196;  Powers  v.  Clark,  127  N. 
Y.  425,  28  N.  E.  402. 

It  being  the  purpose  of  this  organization 
to  insure  its  membership  and  to  pay  the 
insurance  upon  the  death  of  a  member,  its 
by-laws  should  be  so  construed  as  to  make 
the  accomplishment  of  that  purpose  possi- 
ble. It  must  be  conceded  that  the  persons 
who  made  the  by-law  fixing  the  level  pre- 
mium rate  had  no  greater  authority  than 
those  who  subsequently  changed  it. 

Richardson  v.  Union  Cong.  Soc  58  N.  H. 
189;  Supreme  Lodge,  K.  P.  v.  Kutscher,  179 
III.  346,  70  Am.  St.  Rep.  115,  53  N.  E.  620 ; 
Supreme  Lodge,  K.  P.  v.  Trebbe,  179  III.  353, 
70  Am.  St.  Rep.  120,  53  N.  E.  730;  Domes 
V.  Supreme  Lodge^  K.  P.  75  Miss.  478,  23 
So.  191;  Christ  Church  t.  Pope,  8  Gray, 
142. 

It  did  have  the  power  to  change  these 
rates,  in  order  to  meet  its  liability,  even 
though  they  had  been  fixed  under  the  level 
premium  by-law. 

Thomas  t.  Knights  of  Maccabees,  85 
Wash.  665,  L.R.A.1916A,  750,  149  Pac.  7; 
Fullenwider  v.  Supreme  Council,  R.  L.  73 
III.  App.  331,  180  lU.  621,  72  Am.  St.  Rep. 
239,  54  N.  E.  485;  Newman  v.  Supreme 
Lodge,  K.  P.  —  Miss.  — ,  L.RJ1.1916C,  1051, 
70  So.  241 ;  Messer  v.  Grand  Lodge,  A.  0.  U. 
W.  180  Mass.  321,  62  N.  E.  252;  Conner  v. 
Supreme  Commandery,  G.  C.  117  Tenn.  549, 
97  S.  W.  306;  Williams  v.  Supreme  Council, 
C.  M.  B.  A.  152  Mich.  1,  115  N.  W.  1060; 
Bartram  T.  Supreme  Council,  R.  A.  6  Ont. 
Week.  Rep.  404;  Reynolds  v.  Supreme  Coun- 
cil, R.  A.  192  Mass.  150,  7  L.RJl.(N.S.) 
1154,  78  N.  E.  129,  7  Ann.  Cas.  150;  Su- 
preme Lodge,  K.  H.  V.  Bieler,  —  Ind.  — , 
105  N.  E.  244. 

If  this  were  a  suit  against  the  old  corpo- 
ration issuing  this  policy,  it  must  be  held 
that  the  old  corporation  would  have  had 
the  right  to  increase  these  rates  had  it 
become  necessary  so  to  do.  But  when  we 
find  that  the  defendant  in  error  became  a 
member  of  the  new  corporation  created  by 
its  charter  in  1894,  then  it  must  follow  that 
his  rights  under  his  policy,  issued  by  the 
old  corporation,  and  the  liabilities  of  the 
new  corporation  to  him,  must  be  measured 
by  the  charter  and  by-laws  of  the  new  cor- 
porsiion. 

Bolhnan  v.  Supreme  Lodge,  K.  H.  —  Tex. 
Civ.  App.  — ,  53  S.  W.  722,  54  S.  W.  246; 
WineUmd  v.  Knights  of  Maccabees,  148 
Mich.  608,  112  N.  W.  696;  Gibbs  v.  Knights 
of  Pythias,  173  Mo.  App.  34,  156  S.  W.  11 ; 
Watson  V.  National  Loan  k  T.  Co.  1^ 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  Tebm^ 


C.  A.  134,  189  Fed.  872;  Niblack,  Ben.  Soc 
2d  ed.  §  18,  pp.  33,  34;  29  Cyc.  70. 

The  leading  principle  of  fraternal  insur- 
ance is  that  there  must  be  equality  between 
the  members. 

Mock  V.  Supreme  Council,  R.  A.  121  App. 
Div.  474,  106  N.  Y.  Supp.  165;  Reynolds 
V.  Supreme  Council,  R.  A.  192  Mass.  150, 
7  L.R.A.(N.S.)  1154,  78  N.  E.  129,  7  Ann. 
Cas.  150;  Hall  v.  Western  Travelers'  Acci. 
Asso.  69  Neb.  601,  96  N.  W.  170;  Swan  v. 
Mutual  Reserve  Fund  Life  Asso.  155  N.  Y. 
9,  49  N.  E.  258. 

The  new  corporation  had  no  authority  to 
receive  members  except  as  authorized  by 
its  charter,  and  it  received  the  membership 
with  the  express  understanding  that  it,  the 
corporation,  would  have  the  power  to 
change  its  by-laws  when  it  became  neces- 
sary. It  had  no  power  to  repeal  a  section 
of  its  charter.  That  could  be  done  by  the 
American  Congress,  but  not  by  the  corpo- 
ration. That  charter  was  the  measure  of 
its  power.  It  could  exercise  all  the  powers 
conferred  upon  it,  but  none  other.  One  of 
the  powers  not  conferred  upon  it  was  to 
deny  itself  the  privilege  by  contract  of 
amending  its  by-laws.  Such  a  contract,  de- 
priving it  of  such  power,  would  be  ultra 
vires  and  void. 

Centra]  Transp.  Co.  ▼.  Pullman's  Palace 
Car  Co.  139  U.  S.  24,  35  L.  ed.  55,  11  Sup. 
Ct.  Rep.  478;  National  Home  Bldg.  &  L. 
Asso.  V.  Home  Sav.  Bank,  181  111.  35,  64 
L.R.A.  399,  72  Am.  St.  Rep.  245,  54  N.  E. 
619. 

Members  coming  from  an  old  corporation 
into  a  new  corporation  come  subject  to  the 
by-laws  of  the  new  corporation. 

Gibbs  ▼.  Knights  of  Pythias,  173  Mo. 
App.  34,  156  S.  W.  11 ;  Watson  t.  National 
Life  &  T.  Co.  Ill  C.  C.  A.  134,  189  Fed. 
872;  Niblack,  Ben.  Soc.  §  18,  pp.  33,  34;  29 
Cyc.  70. 

The  power  to  conduct  a  fraternal  order 
carries  with  it  the  power  to  adopt  all  rea- 
sonable regulations  and  by-laws  necessary 
to  make  the  order  effective,  even  to  increas- 
ing rates. 

Ebert  ▼.  Mutual  Reserve  Fund  Life  Asso. 
81  Minn.  116,  83  N.  W.  506,  834,  84  N.  W. 
457;  Supreme  Lodge,  K.  P.  t.  Knight,  117 
Ind.  489,  3  L.RJL  412,  20  N.  E.  479;  Clark 
V.  Mutual  Reserve  Fund  Life  Asso.  14  App. 
D.  C.  154,  43  LJKJ^.  395;  Norton  v.  Catho- 
lic Order  of  Foresters,  138  Iowa,  464,  24 
L.R.A.(N.S.)  1030,  114  N.  W.  894;  May  ▼. 
New  York  Safety  Reserve  Fund  Soc.  14 
Daly,  389,  13  N.  Y.  S.  R.  70;  Willlson  ▼. 
Jewelers'  ft  T.  Co.  30  Misc.  ]97,  61  N.  Y. 
Supp.  1126;  10  Cyc.  1097. 
118S 


Mr.  Ijawrence  C.  McBrlde  argued  the 
cause,  and,  with  Messrs.  Edward  Gray  and 
Joseph  E.  Cockrell,  filed  a  brief  for  defend- 
ant in  error: 

The  charter  of  plaintiff  in  error,  aa 
granted  by  the  Congress,  did  not,  expressly 
or  impliedly,  give  it  the  right  to  raise  the 
rate  of  assessment,  or  otherwise  affect 
Mims's  contract,  as  was  attempted  by  the 
law  passed  by  plaintiff  in  error  in  1910, 
and  complained  of  herein. 

Smythe  v.  Supreme  Lodge,  K.  P.  198  Fed. 
967,  137  C.  C.  A.  32,  220  Fed.  438;  Wright 
V.  Knights  of  Maccabees,  48  Misc.  558,  95 
N.  Y.  Supp.  996,  196  N.  Y.  391,  31  L.RJk. 
(N.S.)  423,  134  Am.  St.  Rep.  838,  89  N. 
E.  1078;  Rosenfeld  v.  Boston  Mut.  L.  Ins. 
Co.  —  Mass. — ,  110  N.  E.  305;  Minneapolis 
V.  Minneapolis  Street  R.  Co.  215  U.  8.  417, 
64  L.  ed.  259,  30  Sup.  Ct.  Rep.  118;  De- 
troit V.  Detroit  Citizens*  Street  R.  Co.  184 
U.  S.  368,  46  L.  ed.  592,  22  Sup.  Ot  Rep. 
410. 

The  inhibition  in  defendant's  charter  as 
to  having  a  constitution  with  power  to 
amend  the  same  being  that  such  constitu- 
tion or  amendments  must  not  conflict  with 
of  the  laws  of  the  United  States  or  of  any 
state,  the  amended  by-laws  complained  of 
are  inoperative,  not  only  because  they  con- 
flict with  the  common  law  of  the  state  of 
Texas,  as  announced  in  the  instant  case 
and  in  prior  Texas  cases  which  same  fol- 
lows (Ericson  v.  Supreme  Ruling,  F.  M.  C. 
105  Tex.  170,  146  S.  W.  160),  bat  such 
amended  laws  are  likewise  of  no  effect  be- 
cause in  conflict  with  the  5th  Amendment 
and  with  the  Texas  Constitution. 

Kent  V.  Quicksilver  Min.  Co.  78  N.  Y. 
159,  4  Mor.  Min.  Rep.  47;  Parish  v.  New 
York  Produce  Exch.  169  N.  Y.  34,  56  L.ILA. 
149,  61  N.  E.  977. 

The  right  given  in  defendant's  charter  U> 
"have  a  constitution  and  shall  have  •power 
to  amend  same  at  pleasure,  provided  that 
such  constitution  and  amendments  thereof 
do  not  conflict  with  the  laws  of  the  United 
States  or  of  any  state,"  is  certainly  no 
greater  than  the  right  usually  reserved  to 
a  state  to  amend  or  alter  a  charter  granted 
by  it,  and  the  authorities  are  to  the  effect 
that  such  reserved  power  of  alteration  and 
amendment  is  not  vrithout  limit;  that  al- 
terations must  be  reasonable  and  consistent 
with  the  scope  and  object  of  the  act  of 
incorporation;  that  a  right  reserved  by  tlie 
general  statutes  to  amend  or  repeal  privi- 
leges and  franchises  conferred  by  the  char- 
ter is  one  thing,  but  the  power  to  take  froiD 
the  stockholders  or  others,  rights  or  prop- 
erty interests  acquired  or  vested  before  such 
repeal  or  amendment;  is  another  and  quite 
a  different  thing.  The  first  comes  within 
the  legislative  authority;   the  second  lies 

241  V.  S. 


1915. 


SUPREME  LODGE,  K.  OF  P.  ▼.  MUfS. 


bfeyond  the  limits  of  such  authority,  because 
the  legislature  cannot  defeat  or  impair 
rights  previously  Tested,  which  have  sprung 
up  or  grown  out  of  such  corporate  privi- 
leges or  franchises,  while  the  corporation 
was  allowed  to  exercise  the  same. 

Shields  v.  Ohio,  95  U.  S.  319,  24  L.  ed. 
357;  Hill  v.  Glasgow  R.  Ck>.  41  Fed.  610; 
Greenwood  v.  Union  Freight  R.  Co.  105  U. 
S.  13,  26  L.  ed.  961. 

Under  this  reserved  power  legislatures 
can  only  affect  future  contracts;  they  can 
in  nowise  change  or  alter  corporate  con- 
tracts already  entered  into,  so  as  to  affect 
the  rights  of  parties  already  acquired. 

Bank  of  the  Old  Dominion  v.  McVeigh, 
20  Gratt.  457. 

A  general  power  reserved  either  by  stat- 
ute or  by  the  constitution  of  a  society,  to 
amend  its  by-laws,  does  not  authorize  an 
amendment  impairing  vested  rights  of  the 
members;  the  reserved  right  to  amend  is 
not  intended  to  cover  the  case  of  existing 
members,  and  was  applicable  solely  to  those 
who  should  join  the  order  after  amend- 
ments. 

Beach  v.  Supreme  Tent,  K.  M.  177  N.  T. 
100,   69  N.   E.   282. 

A  by-law  must  be  reasonable.  This  rule 
of  reasonableness  forbids  any  retroactive  ef- 
ficacy in  abrogation  of  subsisting  contract 
rights;  and  the  articles  of  association  and 
by-laws  existing  at  the  time  of  acquisition 
of  membership  are  in  many  respects  to  be 
regarded  as  establishing  between  the  asso- 
ciation and  every  member,  and  among  them- 
selves, such  rights  of  a  fundamental 
character. 

Thomp.  Corp.  2d.  ed.  §  999. 

The  function  of  a  by-law  is  to  prescribe 
the  rights  and  duties  of  the  members  with 
reference  to  the  internal  government  of  the 
corporation,  the  management  of  its  affairs, 
and  the  rights  and  duties  existing  between 
the  members  inter  »e.  The  proper  office  of 
by-laws  is  to  regulate  the  incidental  busi- 
ness of  a  corporation.  They  should  not  af- 
fect rights  of  property  or  create  obligations 
unknown  to  the  law. 

1  Thomp.  Corp.  2d  ed.  §  975. 

The  very  fact  alone  that  the  new  law 
undertook  to  apply  the  rate  in  accordance 
with  the  attained  age  and  occupation  of 
the  member  was  a  breach  of  the  contract. 

Ayers  v.  Grand  Lodge,  A.  0.  U.  W.  188 
N.  Y.  280,  80  N.  E.  1020. 

As  likewise  was  the  attempt  of  the  Su- 
preme Lodge  to  delegate  its  functions  to 
the  board  of  control,  which  has  been  ex- 
pressly decided  to  be  without  effect  in  nu- 
merous cases  against  this  self-same  plaintiff 
in  error. 

Supreme  Xodge,  K.  P.  v.  McLennan,  171 
lU.  417,  49  N.  E.  531;  Supreme  Lodge,  K. 
60  li.  ed. 


P.  V.  Stein,  75  Miss.  107,  87  LJLA.  775,  65 
Am.  St.  Rep.  589,  21  So.  559. 

The  right  to  decrease  the  financial  value 
of  the  benefit  certificate  does  not  exist  under 
the  general  agreement  of  the  memlier,  as, 
for  instance,  to  be  governed  by  all  the  laws 
of  the  order  now  in  force  or  hereafter  to 
be  enacted. 

Supreme  Lodge^  K.  P.  v.  Weller,  93  Va. 
605,  25  S.  E.  891;  Richter  v.  Supreme 
Lodge,  K.  P.  137  Cal.  8,  69  Pac.  483 ;  Pear- 
son V.  Knight  Templars  &  M.  Indemnity  Co. 
114  Mo.  App.  283,  89  S.  W.  588;  Morton  v. 
Supreme  Council,  R.  A.  100  Mo.  App.  76, 
73  S.  W.  259;  Knighto  Templars  &  M.  Life 
Indemnity  Co.  v.  Jarman,  44  C.  C.  A.  93, 104 
Fed.  €38;  Dowdall  v.  Supreme  Council,  C.  M. 
B.  A.  196  N.  Y.  405,  31  L.R.A.(N.S.)  417,  89 
N.  E.  1075;  Evans  V.  Southern  Tier  Masonic 
Relief  Asso.  182  N.  Y.  453,  75  N.  £.  317: 
Ericson  v.  Supreme  Ruling,  F.  M.  0.  10.. 
Tex.  170,  146  S.  W.  160;  Green  v.  Supreme 
Council,  R.  A.  206  N.  Y.  591,  100  N.  E. 
411;  Smythe  v.  Supreme  Lodge,  K.  P.  198 
Fed.  967,  137  C.  C.  A.  32,  220  Fed.  438; 
Gaut  V.  American  Legion  of  Honor,  107 
Tenn.  603,  55  LJRjk.  465,  64  S.  W.  1074. 

Messrs.  Thomas  F.  West  and  Lawrence  C. 
McBride  also  filed  a  brief  for  defendant  in 
error: 

If  it  appears  from  the  face  of  the  record 
that  the  decision  of  the  state  court  is  en- 
tirely consistent  with  the  construction  of  a 
Federal  statute  contended  for  by  the  plain- 
tiff in  error,  no  case  is  made  out  for  the 
appellate  jurisdiction  of  the  Supreme  Court 
of  the  United  States. 

Ocean  Ins.  Co.  v.  Polleys,  13  Pet.  157,  10 
L.  ed.  105. 

When  the  jurisdiction  of  this  court  is  in- 
voked upon  the  ground  that  a  right  or 
immunity  specially  set  up  and  claimed 
under  the  Constitution  or  authority,  of  the 
United  States  has  been  denied  by  the  judg- 
ment sought  to  be  reviewed,  it  must  appear 
from  the  record  of  the  case,  either  that  the 
right  so  set  up  and  claimed  was  expressly 
denied,  or  that  such  was  the  necessary  ef- 
fect of  the  judgment  in  law. 

Chicago,  B.  ft  Q.  R.  Co.  v.  Chicago,  166 
U.  S.  226,  41  L.  ed.  979,  17  Sup.  Ct.  Rep. 
581. 

Where  the  judgment  of  a  state  court 
might  have  been  based  either  upon  a  state 
law  repugnant  to  the  Constitution  or  laws 
of  the  United  States,  or  upon  some  other 
independent  ground,  and  it  appears  that  the 
court  did  base  it  upon  the  latter  ground, 
the  Supreme  Court  will  not  take  jurisdic- 
tion, even  though  it  thinks  the  state  court 
decision  erroneous. 

Klinger  y.  Missouri,  13  Wall.  257,  20  L. 
ed.  635. 


676,  676 


SUPKEaiE  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


A  decisi<Hi  by  a  state  court,  holding  that 
the  rights  of  parties  who  make  conflicting 
claims  nnder  United  States  patents  are  de- 
termined by  a  contract  which  they  have 
made,  and  also  that  plaintiffs  claim  is 
defeated  by  estoppel,  does  not  inYoWe  a  Fed- 
eral question  for  review  by  the  Supreme 
Court  of  the  United  States  on  writ  of  error. 

Pittsburgh  ft  L.  A.  Iron  Co.  v.  Cleveland 
Iron  Min.  Co.  178  U.  8.  270,  44  L.  ed.  1065, 
20  Sup.  Ct.  Rep.  931. 

Where  the  Federal  questions  involved  in 
a  case  were  correctly  decided  by  the  state 
supreme  court,  the  judgment  of  that  court 
must  be  affirmed  without  determining  any 
other  questicms  not  of  a  Federal  character. 

Swope  V.  Leffingwell,  105  U.  S.  8,  26  L. 
ed.  939. 

If  the  Federal  question  raised  in  the 
state  court  was  erroneously  decided,  then 
this  court  must  inquire  whether  there  is 
any  other  matter  or  issue  adjudged  by  the 
state  court  sufficiently  broad  to  maintain 
the  judgment.  If  this  be  found  to  be  the 
case,  the  judgment  must  be  affirmed  without 
examination  into  the  soundness  of  the  de- 
cision of  such  other  matter  or  issue. 

Murdock  y.  Memphis,  20  Wall.  690,  22 
L.  ed.  429. 

Where  the  supreme  court  of  a  state  de- 
cides a  Federal  question  in  rendering  a 
judgment,  and  also  decides  against  the 
plaintiff  in  error  upon  an  independent 
groimd  not  involving  a  Federal  question 
and  broad  enough  to  maintain  the  judg- 
ment, the  writ  of  error  will  be  dismissed 
without  considering  the  Federal  question. 

Hammond  v.  Connecticut  Mut.  L.  Ins.  Co. 
150  U.  S.  633,  37  L.  ed.  1206,  14  Sup.  Ot. 
Rep.  236. 

Fair  color  for  claiming  that  rights  under 
the  Federal  Constitution  have  been  violated 
is  necessary  to  give  jurisdiction  to  the  Su- 
preme Court  of  the  United  States  on  writ 
of  error  to  a  state  court,  based  on  such 
Federal  question. 

Wilson  V.  North  Carolina,  169  U.  S.  686, 
42  L.  ed.  865,  18  Sup.  Ct  Rep.  435. 

A  decision  which  -does  not  deny  the  valid- 
ity of  an  act  of  Congress,  or  deny  any  right 
claimed  under  it,  does  not  present  a  Fed- 
eral question  merely  because  the  rights  of 
the  parties  were  in  w>m»  respects  based 
upon  an  act  of  Congress. 

Missouri  P.  R.  Co.  v.  Fitzgerald,  160  U. 
S.  556,  40  L.  ed.  536,  16  Sup.  Ct.  Rep.  389. 

It  does  not  follow  that  the  state  court 
decided  against  any  title,  right,  privilege, 
or  immunity  in  exercising  its  jurisdiction, 
because  the  suit  might  have  been  brought  in 
a  circuit  court  of  the  United  States,  or  re- 
moved thereto  from  the  state  court,  on  the 
ground  that  it  arose  under  the  laws  of  the 
United  States. 
1184 


I  Texas  ft  P.  R.  Co.  v.  Griffin,  151  U.  8. 
105,  38  L.  ed.  90,  14  Sup.  Ct.  Rep.  259. 

The  Federal  Supreme  Court,  on  a  writ  of 
error  to  a  state  court,  has  not  the  jurisdic- 
tion of  a  general  reviewing  court  in  error, 
but  is  limited  to  a  consideration  of  the 
specific  instances  of  d^iials  of  Federal 
rights. 

Waters-Pierce  Oil  Co.  v.  Texas,  212  U.  a 
86,  53  L.  ed.  417,  29  Sup.  Ot  Rep.  220. 

The  legal  correctness  of  the  rule  by  which 
the  damages  were  ascertained  and  assessed 
in  the  state  court  is  not  reviewable  in  the 
Supreme  Court  of  the  United  States. 

Qelston  v.  Hoyt,  3  Wheat  246,  4  L.  ed. 
381. 

Mr.  Justice  Holmes  delivered  the  opinion 
of  the  court: 

This  is  a  suit  against  a  corporation  char- 
tered by  Congress  on  June  29,  1894  (chap. 
119,  28  Stat,  at  L.  96),  to  recover  all  sums 
paid  by  the  plaintiff,  the  defendant  in  er- 
ror, to  the  defendant  and  its  predecessors; 
the  ground  alleged  being  that  the  defend- 
ant, the  plaintiff  in  error,  has  demanded 
monthly  dues  in  excess  of  its  rights,  and 
thereby  has  entitled  the  plaintiff  to  recover 
all  that  he  had  paid,  with  interest 

The  facts  are  as  follows:  The  plaintiff 
originally  took  out  two  certificates  of  in- 
surance from  an  earlier  corporation  of  the 
same  name,  the  charter  of  which  expired  on 
[576]  August  5,  1890.  In  May,  1885,  he 
surrender^  these  certificates  and  took  out 
a  new  one  in  what  was  called  the  Fourth 
Class,  by  which,  in  consideration  of  his 
original  declarations  and  representations, 
and  of  the  payment  ''of  all  monthly  pay- 
ments as  required,  and  the  full  compliance 
with  all  the  laws  governing  this  rank,  now 
in  force,  or  that  may  hereafter  be  enacted 
and  shall  be  in  good  standing  under  said 
laws,"  the  sum  of  $3,000  was  to  be  paid 
to  the  plaintiff's  wife,  or  such  other  bene- 
ficiary as  he  might  direct  in  proper  form, 
upon  notice  and  proof  of  death  and  good 
standing  at  the  time;  provided,  as  here- 
after  stated.  It  was  further  stipulated  that 
any  violation  of  the  conditions  mentioned 
or  the  requirements  of  the  laws  governing 
this  rank  should  avoid  all  claims.  By  the 
certificate  of  incorporation  the  corporation 
had  power  "to  alter  and  amend  its  Consti- 
tution and  by-laws  at  will;"  the  laws  of 
1880,  then  in  force,  provided  that  ''these 
laws  [regulating  assessments  inter  alia} 
may  be  altered  or  amended  at  any  re^ulur 
session  of  the  Supreme  Lodge  K.  of  P.;"  and 
by  his  original  application  the  plaintiff 
agreed  to  conform  to  the  laws  and  regu- 
lations of  the  order  then  in  force  or  that 
might  thereafter  be  enacted,  or  submit  to 
'  the  penalties  therein  contained. 

S41  V.  8. 


1015. 


SUPREME  LODGE,  K.  OF  P.  ▼.  MIM& 


676-679 


Tho  plaintiff  contends  that  his  contract 
took  him  out  of  these  reiterated  provisions 
for  possible  change;  and  his  ground  is  that 
by  article  5,  §  4,  of  the  laws  of  1884,  creat- 
ing the  Fourth  Class,  the  endowment  fund 
for  the  payment  of  benefits  in  that  class 
was  to  be  derived  from  monthly  payments 
from  each  member  for  each  $1,000  of  en- 
dowment, to  be  graded  according  to  the  age 
of  the  member* at  the  time  of  making  appli- 
cation, and  his  expectancy  of  life,  the  age 
to  be  taken  at  the  nearest  birthday,  "Said 
monthly  payments  shall  be  based  upon  the 
average  expectancy  of  life  of  the  appli- 
cant, and  shall  continue  the  same  so  long 
as  his  membership  continues.''  A  table  ap- 
pended gave  the  rate  for  the  different  ages 
from  [577]  twenty-one  to  sixty.  At  that 
time  members  were  transferred  to  the  Fourth 
Class  at  the  original  entry  age,  which,  in 
the  plaintiff's  case,  was  forty-two.  These 
same  laws  of  1884  repeated  the  former  pro- 
vision as  to  amendment  by  the  Supreme 
Lodge,  now  requiring  a  two-thirds  vote.  The 
recension  of  1886  repeated  the  last-men- 
tioned provision,  and  set  forth  a  form  of 
application  by  which  the  applicant  agreed 
not  only,  as  heretofore,  that  he,  but  also 
that  "this  contract,  shall  be  controlled"  by 
the  laws  then  in  force  or  that  might  be  en- 
acted thereafter.  The  power  to  alter  was 
applied  in  1888  to  the  payments  to  be  made 
by  the  Fourth  Class.  The  board  of  control 
was  ordered  to  rerate  members  transferred 
to  the  Fourth  Class  as  the  plaintiff  was, 
8o  that  thereafter  they  should  pay  as  of 
the  age  at  which  they  were  transferred,  in- 
stead of  that  at  which  they  first  became 
members.  Thereafter  the  plaintiff  paid  as 
of  the  age  of  forty-eight. 

After  the  charter  expired,  in  1890,  the 
business  was  kept  going  under  the  same 
name  by  a  voluntary  association,  the  plain- 
tiff paying  his  assessments  as  before,  until 
on  June  29,  1894,  the  act  of  Congress  men- 
tioned incorporated  certain  persons  named, 
''officers  and  members  of  the  Supreme  Lodge 
Knights  of  Pythias,"  by  the  name  of  "The 
Supreme  Lodge  Knights  of  Pythias,"  and 
authorized  them  to  use  the  powers  "in- 
cidental to  fraternal  and  benevolent  cor- 
porations within  the  District  of  Columbia." 
By  the  3d  section  of  the  charter  "all  claims, 
accounts,  debts,  things  in  action,  or  other 
matters  of  business  of  whatever  nature  now 
existing  for  or  against  the  present  Supreme 
Lodge  Knights  of  Pythias,  mentioned  in 
f  1  of  this  act,  shall  survive  and  succeed 
to  and  against  the  body  corporate  and  poli- 
tic hereby  created;  provided  that  nothing 
contained  herein  shall  be  construed  to  ex- 
tend the  operation  of  any  law  which  pro- 
vides for  the  extinguishing  of  claims  or 
contracts  by  limitations  of  time."  This  is 
60  li.  ed« 


the  main  ground  upon  which  the  defendant 
is  [578]  sought  to  be  charged  with  the  cer- 
tificate issued  by  the  former  corporation. 
By  I  4  "said  corporation  shall  have  a  con- 
stitution and  shall  have  power  to  amend  the 
same  at  pleasure;  provided,  that  such  con- 
stitution or  amendments  thereof  do  not  con- 
flict with  the  laws  of  the  United  States  or 
of  any  state."  Amendments  to  the  laws  of  the 
association  were  adopted  this  same  year, 
1894,  by  one  of  which  the  existing  rates 
were  retained,  and  it  was  provided  that  each 
member  of  the  endowment  rank  should  con- 
tinue to  pay  the  same  amount  each  month 
thereafter  so  long  as  he  remained  a  mem- 
ber, "unless  otherwise  provided  for  by  the 
Supreme  Lodge  or  board  of  control  of  the 
endowment  rank."  A  similar  provision 
was  made  in  1900,  but  the  rate  for  the  age 
of  forty -eight  was  made  $2.45,  or  $7.35  for 
the  $3,000  in  the  certificate.  The  plaintiff 
paid  the  rates  as  established  from. time  to 
time. 

The  split  came  in  1010.  In  that  year  the 
corporation  passed  a  law  providing  for  a 
rerating  of  every  member  of  the  Fourth 
Class  on  January  1,  1911,  in  accordance 
with  his  attained  age  and  occupation,  under 
which  the  plaintiff's  monthly  payment 
would  be  raised  to  $34.80,  unless  he  ac- 
cepted one  of  several  options  offered  to  him. 
It  should  be  added  that  his  occupation 
played  no  part,  as  it  was  not  ranked  as 
hazardous.  He  was  notified,  but  declined 
to  pay  or  otherwise  accede  to  the  change. 
On  January  20,  1911,  he  tendered  $22.06 
for  the  months  of  January,  February,  and 
March  of  that  year,  the  tender  was  refused, 
and  in  May  this  suit  was  begun.  The  court 
of  civil  appeals  affirmed  a  judgment  for  the 
plaintiff  on  a  verdict  directed  by  the  trial 
court,  modifying  it  so  far  as  to  coi\fine  the 
recovery  to  payments  made  since  the  issue 
of  the  certificate  of  1885,  with  interest. 
An  application  to  the  supreme  court  for  a 
writ  of  error  was  refused. 

There  is  a  motion  to  dismiss,  but  as  the 
case  necessarily  will  turn  on  the  construc- 
tion of  the  present  charter,  an  act  of  Con- 
gress, and  the  defendant  justifies  imder  it, 
the  [579]  motion  is  denied.  Creswill  ▼. 
Grand  Lodge,  K.  P.  225  U.  S.  246,  258,  66  L. 
ed.  1074,  1078,  32  Siip.  Ct  Rep.  822.  There 
is  no  ground  for  treating  the  plaintiff  as  not 
having  come  into  the  new  company  by  vir- 
tue of  I  3.  That  section  provided  for  his 
doing  so,  and  when  he  was  treated  and  acted 
as  a  member,  the  presumption  is  conclusivs 
that  he  did  so  in  pursuance  of  the  law  that 
authorized  it. 

We  assume  without  argument  that  by 

§  3  of  the  charter,  and  his  assent  thereto, 

the  plaintiff  became  a  member  of  the  or- 

ganization^  with  whatever  rights  he  might 

76  1185 


679-681 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Temu, 


hftTe  M  such.  It  is  not  to  be  conceived, 
howeTer,  that  the  charter  was  intended  to 
ereate  a  privileged  claBs,  or  that  the  right 
of  the  corporation  to  amend  ita  laws  was 
less  in  his  case  than  in  that  of  one  Joining 
after  1894.  As  to  later  members,  we  can 
have  no  doubt,  notwithstanding  the  diifer- 
enee  of  opinion  in  state  courts,  that  the 
right  to  amend  extends  to  a  change  in  the 
rates  to  be  paid.  Persons  who  join  institu- 
tions of  this  sort  are  not  dealing  at  arm's 
length  with  a  stranger  whose  mode  of  pro- 
viding for  payment  does  not  concern  them, 
but  only  his  promise  to  pay.  They  are 
Joining  a  club  the  members  of  which  have 
to  pay  any  benefit  that  any  member  can 
receive.  The  corporation  is  simply  the 
machine  for  collection  and  distribution.  Its 
charter  expressly  provides  by  §  5  that  it 
"shall  not  engage  in  any  business  for  gain; 
the  purpose  of  said  corporation  being  fra- 
ternal and  benevolent."  It  is  manifest, 
therefore,  that  it  would  be  a  perversion  of 
its  purposes  if,  through  some  ambiguity  of 
phrase,  the  necessary  source  of  benefits  were 
closed  in  favor  of  certain  members,  while 
their  right  to  insist  upon  payment  re- 
mained. The  essence  of  the  arrangement 
was  that  the  members  took  the  risk  of 
events,  and  if  th^  assessments  levied  at  a 
certain  time  were  insufficient  to  pay  a  bene- 
fit of  a  certain  amount,  whether  from 
diminution  of  members  or  any  other  cause, 
either  they  must  pay  more  or  the  bene- 
ficiaiy  take  less. 

[580]  The  same  conditions  applied  to  the 
original  corporation,  and  the  plaintiff  testi- 
fies that  he  understood  them.  He  says  in  so 
many  words  that  he  knew  that  the  only 
source  of  revenue  to  meet  .his  and  other 
policies  was  from  assessments  of  the  in- 
sured, and  that  if,  after  a  proper  rate  was 
fixed  for  a  membership  of  five  thousand, 
the  membership  fell  to  two  thousand,  the 
rate  would  have  to  be  increased  if  the  obli- 
gations were  to  be  met.  The  statute  and 
the  words  of  the  law  of  the  company  under 
which  the  plaintiff  entered  the  Fourth 
Class  should  be  construed  in  the  light  of 
these  considerations.  In  determining  his 
rights  it  is  important  to  bear  in  mind  that 
there  was  no  specific  promise  to  him,  like 
the  promise  to  pay,  in  the  certificate,  but 
that  his  whole  reliance  is  upon  a  law  of  the 
corporation;  and  that  he  had  notice  that 
all  laws  of  the  corporation  were  liable  to 
be  repealed.  The  only  language  in  the  cer- 
tificate bearing  on  the  matter  pointed  to 
possible  changes,  one  tondition  being  the 
payment  of  all  monthly  payments  "as  re- 
quired." It  was  obvious  and  imderstood 
tiiat,  to  pay  a  benefit,  an  increase  in  the 
assessment  might  be  necessary.  In  our 
opinion  the  present  charter,  like  the  first, 
1186 


must  be  construed  to  anthorise  sudi  an  in- 
crease, and  the  dause  in  the  law  of  1884, 
relied  upon, — that  the  payments  should  con- 
tinue the  same  so  long  as  the  membership 
continued, — ^was  not  a  contract,  but  was  s 
regulation  subject  to  the  possibility  in- 
herent in  the  case.  More  than  ambignops 
words  in  an  amendaUe  law  would  be  needed 
to  establish  a  departure  from  the  ground 
on  which  the  relation  of  the  parties  obTi- 
ously  stood,  and  to  create  a  privilege  that 
attacked  the  corporation  in  its  very  lifa 
Compare  the  language  in  Supreme  Council, 
R.  A.  V.  Green,  237  U.  S.  531,  642,  69  L 
ed.  1089,  1100,  L.ILA.1916A,  771,  35  Sap. 
Ct.  Rep.  724,  and  the  same  case  below, 
sub  nom.  Reynolds  ▼.  Supreme  Council,  R. 
A.  192  Mass.  150, 157,  7  L.R^.(N.S.)  1154, 
78  N.  £.  129,  7  Ann.  Cas.  776. 

The  persons  incorporated  in  1894  wen 
described  as  officers  and  members  of  the 
Supreme  Lodge  then  existing;  that  is,  of  s 
voluntary  association ;  and  it  was  the  righti 
[581]  and  duties  of  that  association  thai 
the  defendant  assumed,  if  we  are  to  take  the 
words  in  their  literal  sense.  We  spend  no 
time  upon  the  inquiry  what  those  righti 
and  duties  were,  because,  as  we  have  said, 
we  assume  that  the  plaintiff  acquired  a 
standing  in  the  new  company.  But  in  the 
second  stage,  as  in  the  first,  the  law  estab- 
lishing the  Fourth  Class  had  received  a 
practical  construction  as  being  open  to 
change,  by  the  continued  rating  of  the  plain- 
tiff at  forty -eight  instead  of  forty-two,  as  at 
first,  and  although  the  plaintiff  says  in  a 
general  way  that  he  protested,  he  paid,  and 
he  had  notice  of  what  the  earlier  companies 
asserted  to  be  their  rights  when  he  came 
into  the  new  one  that  asserted  the  same 
and  put  them  in  force  as  against  him.  We 
mention  these  details  to  show  that  the  plain- 
tiff suffers  no  injustice  and  meets  with  no 
surprise  when  we  state  our  opinion  that 
the  assumption  imder  §  3  of  the  new  char- 
ter of  a  relation  with  the  plaintiff  that 
originally  arose  under  a  law  of  the  old 
corporation  was  not  the  assumption  of  t 
contract  for  immutable  assessments,  and 
decide  that  the  power  to  amend,  gives  l7 
§  4,  included  the  power  to  raise  the  rate* 
to  such  point  as  was  necessary  for  the 
corporation  to  go  on. 

The  plaintiff's  certificate  did  not  abso- 
lutely promise  *to  pay  $3,000  if  the  plaintiiT 
had  performed  the  conditions.  It  contained 
a  proviso  by  which,  if  one  monthly  payment 
by  members  holding  an  equal  amount  of 
endowment  should  not  be  sufficient  to  p^T 
the  sum,  the  lunount  of  the  monthly  ptj' 
ment  should  be  the  benefit  received.  If  ^ 
other  Fourth  Class  certificates  were  in  sifli' 
lar  form,  it  may  be  asked  whether  it  wH 
reasonable  to  increase  the  asiessments  rsth* 

S41  V.-^ 


UlS.  BOUTHEBN  SURETY  CD.  t.  OKLAHOICA.  681,  Stt 

tr  than   to  Allow   the   payiDeiiti  to   abate,  cognizable  in  a  court  of  the  Uoitod  Stat«> 

The  aniwer,  in  addition  to  what  wa  already  had  the;  arisen  within  a  atate  were  to  bt 

kaT«  aaid,  ia  that,  unleaa  the  corporation  proceeded  with  in  the  courts  of  the  atate  aa 

Mntlnued  to  make  aubatantial  paymenta  at  ■'"!oe«K"-s  ol   the  temporary  court.,   where 

death,  it  could  not  go  on.    On  the  evidence,  ^"/^^^  wai  not  only  held  hy  a  magia- 

.t  the  end  of  1910  fhe  plaiotiff-a  certificate  Ir^rn'oTTt™  tfZ  t^'oS^^'^^Z 

was  worth  Tery  little  or  nothing.    It  well  i,ut  had  given  bail  for  hla  appe.ranw  in  tha 

may  hare  been  [BSa]  thought  better  to  re-  court  at  that  term,  and  euch  court,  through 

habilitate   the   claM   rather   than   to   allow  the  itate'a  admiaaion,  went  out  of  existence 

their  certificatea  to  become  waste  paper.    At  before   an   indictment   could   bo   found   and 

all  events,  that  waa  the  prevailing  view  in  returned  in  regular  course, 

the  republic  to  which  the  plaintiff  belonged,  ^*"gSp°'^^  tms'i'^  ^""^  '"'  '''  '°  ^'*"* 

jnd,  aa  we  have  aaid,  the  charter  author.  ^.11  _  m  Indian  TMritory  -  effect  ot 

I«ed  It  to  be  enforced.    It  is  unnecessary  to  .dmiasion  u  state  —  stale  aa  bene- 

discusa  the  options  that  were  offered  b  the  flclary, 

alternative,  but  it  is  proper  to  remember  3.  The  atate  of  Oklahoraa  became  the 

that  tor  many  years  the  plaintiff  hai  been  beneficiary  of  a  bail  bond  given  for  the  ap- 

ineured,  and  although  by  what  ha  is  not  Pearanco  at  the  next  term  of  the  temporary 

likeiy  to   regard  aa  bad   fortune  hU   bene-  United  SUtea  court  of  the  Indian  Territory 

flciary   haa   not  profited   by  it.   she   would  of  a  per»n  held  upon  a  charge  ol  adultery 

•!         ■«  L      1.   1    J-  J       •      I  \        .,      ,  to  await  the  action  of   tlie  grand  jury   at 

have   li  he  had  died.     As  he  happily   haa  j^at  terra  by  virtue  of  the  oiferalion  of  tlia 

lived,  be  has  to  bear  the  burdens  incident  proviaiona  of  the  Okla.  enabling  act  of  June 

to  the  nature  of  the  enterprise  into  which  ig,  IBOB   (34  Stat,  at  L.  207,  chap.  3335), 

*- ' ■■  SS  IB,  20,  as  amended  by  the  act  of  March 

4,  190T   (34  SUt.  at  L.  1ZE6,  chap.  291]), 

and  of  the  Oklahoma  Constitution   accept- 

.^_^^  ing    tlifm,    under    which    all    prosecutions 

pending   in   such  temporary  courts   for   ot- 

SOUTHERN  BURETT  COMPANY,  P?J.  In  fenses  which  would  not  have  been  cognizable 

Err.j  in  a  court  of  the  United  States  had  tliey 

Y  been  committed  within  a  atate  were  to  be 

STATK  OF  OKLAHOMA.  procnded  .1th  in  Ih.  ooutl.  ot  th.  .lata 

aa  successors  of  the  temporary  courta,  and 

(See  S.  C.  Reporter's  ed.  682-588.)  the  aUte  therefore,  was  entiUed  to  sue  upon 

rederal  eonrta  —  Jurisdiction  —  eOocl     [BBii™ln  crlmlDSl  eases,  aee   Ball  and  Beeoi- 
Of  admlBBlon  aa  atate.  nliance,  11.,  In   Disest   Bop.   Ct.   1908.1 

1.  A  criminal  prosecution  for  adultery 

b  an   offenae   which   would  not   have   been  [No.  124.] 

cognisable  in  a  court  of  the  United  Statea 
had  it  been  committed  within  a  state,  with- 
in the  meanine  of  the  provisions  of  Okla. 
enabling  act  of  Jnne  16,  1906   (34  Stat,  at 

1286,   chap.   2B11).   and   ot   the   Oklahoma  *    S""«,."?   Oklahoma   to  review   a   judg- 

Constitution   accepting   them,   under   which  "«"*    "'"<=''    «ffi™ed    a    judgment   of    the 

all   prosecutlona  pending  in  the  temporary  district  Court  of  Pittsburg  County,  in  that 

courts  of  the  Indian  Territory  for  offenses  stete,  in  favor  of  the  state  in  an  action  on 

which  would  not  have  been  cognizable  In  a  a  bail  bond.    Affirmed. 

court  of  the  United  States  had  they  been        See  same  case  below,  34  Okla.  781,  127 

committed  within  a  state  were  to  be  pro-  p^^  409 

ceeded  with   in  the  courts  of  the  sUte  a.        5^^  j^^t,  ^„  ,t^ted  in  the  opinion. 

successors  of  the  temporary  courte. 

[For  other  cases,  see  Courts,  III.  b.  Id  Dieeat        Jfr.  C.  S.  Arnold  submitted  the  cause  for 

P^erai^^  -  JurlsdlcUou  -  eftoct  I'':ii"*"L'V""'        ^       *^.■      k™..          1,. 

Of  admission  as  state.  ^'   beneficiary   under  this   b<md   could 

2.  A  prosecution  or  proceeding  was  "ot  *>•  changed  by  legiaUtion,  nor  could 
*^nding"  in  a  temporary  United  States  there  be  a  legislatiTS  assignment  of  the 
court  of  the  Indian  Territory  within  the  iiond  from  the  United  StatM  to  the  State 
meaning  of  the  provfeions  of  Okla.  enabling  of  Oklahoma. 

■ot  of  June  16.  IBM  (34  Stat,  at  L  287,       Stearns.    Suretyship,    p.  «4;    Reese    r. 

ebap.  3335)    18  16,  20    as  amended  by  Uie    uait^  gt^t„    »  ^^  j3    „  L.  ed.  541; 

set  of  March  4,  1S07  (34  Stat,  at  L.  1286,    »„  (^     t^ 

diap.  2811),  and  of  the  Oklahoma  Coniti-  r^-T'    .  "_.  .  .4.   ^  —..  . 

tntfon  accepting  them,  that  all  prosecutions,       ^*»  diatnct  court  of  Pitteburg  county, 

eoceedings,  causes,  and  matters  pending  in  I  Oklahoma,  had  no  jurisdiction  of  the  offenaa 
MS  court*  which   would  not  have   been    named  in  the  bond,  and  for  which  ha  waa 
••  li.  ed.  IIST 


6UPR£M£  COURT  OF  THE  UNITED  STATES. 


Oct.  Tmc, 


indicted  by  such  court,  and  consequently 
could  not  forfeit  the  bond. 

United  States  v.  Baum,  74  Fed.  43. 

It  is  a  significant  fact  that  prosecutions 
for  felonies  and  misdemeanors  of  a  local 
nature  in  the  territory  of  Utah  were  car- 
ried on  in  the  name  of  the  people  of  Utah, 
while  crimes  deemed  to  be  against  the 
United  States  were  carried  on  in  the  name 
of  the  United  States  of  America. 

People  T.  Berlin,  9  Utah,  383,  35  Pac. 
408;  People  y.  Kessler,  13  Utah,  09,  44  Pac. 
97;  People  ▼.  Burtleson,  14  Utah,  258,  47 
Pac.  87. 

The  state  court  had  jio  jurisdiction  of  the 
case  because  the  crime  was  committed  prior 
to  statehood,  was  an  offense  against  the 
United  States,  and  could  not  be  transferred 
to  the  state  courts  by  act  of  Congress. 

Pickett  ▼.  United  States,  216  U.  S.  456, 
54  Lw  ed.  566,  30  Sup.  Ct.  Rep.  265;  Martin 
V.  Hunter,  1  Wheat.  304,  337,  4  L.  ed.  97, 
105;  United  States  ▼.  Baum,  74  Fed.  43; 
Gwin  ▼.  Breedlove,  2  How.  29,  11  L.  ed. 
167;  Re  Loney,  134  U.  S.  372,  33  L.  ed. 
949,  10  Sup.  Ct.  Rep.  584;  The  Antelope, 
10  Wheat.  66,  6  L.  ed.  268;  Huntington  v. 
Attrill,  146  U.  S.  657,  36  L.  ed.  1123,  13 
Sup.  Ct.  Rep.  224. 

The  act  of  admission  creates  a  state 
upon  an  equal  footing  with  every  other 
state,  and  by  this  act  of  admission,  a  divi- 
sion and  distribution  of  the  sovereignty  is 
brought  about.  Hence,  to  burden  a  state 
with  the  prosecution  of  criminal  offenses 
committed  in  the  country  under  the  control 
of  Congress  would  be  an  unequal  burden, 
and  prevent  that  equality  guaranteed  under 
the  enabling  act  to  the  state,  and  be  assum- 
ing to  transact  business  at  its  own  expense, 
arising  under  a  foreign  jurisdiction. 

Shively  v.  Bowlby,  152  U.  S.  34,  38  L.  ed. 
344, 14  Sup.  Ct.  Rep.  548;  Pollard  v.  Hagan, 
3  How.  233,  11  L.  ed.  575;  Permoli  v.  New 
Orleans,  3  How.  590,  11  Lw  ed.  739;  Strader 
V.  Graham,  10  How.  92,  13  K  ed.  337; 
Spooner  v.  McConnell,  1  McLean,  337,  Fed. 
Cas.  No.  13,245;  Benner  v.  Porter,  9  How. 
239,  13  L.  ed.  121;  Hunt  v.  Palao,  4  How. 
589,  11  L.  ed.  1115;  Calkin  v.  Cocke,  14 
How.  237,  14  L.  ed.  402. 

If. Congress  had  the  power  to  transfer 
this  jurisdiction  to  the  state  courts,  the 
power  of  the  sovereignty  exercised  by  the 
Congress  to  create  a-  court  and  attach  juris- 
diction thereto  to  hear  and  determine  causes 
of  action  accruing  within  the  territory  be- 
fore the  admission  of  the  state  is  supreme 
and  is  exclusive;  and  inasmuch  as  it  failed 
to  act,  the  right  of  action  is  in  suspense 
until  Congress  does  act. 

Forsyth  v.  United  States,  9  How.  572,  13 
L.  ed.  263;  United  States  v.  Baum,  74  Fed. 
43;  United  States  v.  Partello,  48  Fed.  677; 
1188 


McNulty  V.  Batty,  10  How.  72,  13  U  ed. 
333;  Freeborn  v.  Smith,  2  Wall.  160,  160, 
177,  17  L.  ed.  922;  United  States  Exp.  Co. 
V.  Kountze  Bros.  8  Wall.  342,  19  L.  ed.  457 ; 
Koenigsberger  v.  Richmond  Silver  Min.  Co. 
158  U.  S.  41,  39  L.  ed.  889,  15  Sup.  Ct.  Rep. 
751;  Jones  v.  United  States,  137  U.  S.  202, 
34  L.  ed.  691,  11  Sup.  Ct.  Rep.  80;  Ames 
V.  Colorado  C.  R.  Co.  4  Dill.  251,  Fed.  Cat. 
No.  324;  Spooner  v.  McConnell,  1  McLean, 
337,  Fed.  Cas.  No.  13,245;  Benner  v.  Por- 
ter, 9  How.  235,  13  L.  ed.  119;  Inerarity  v. 
Curtis,  4  Fla.  175;  Carter  v.  Bennett,  4 
Fla.  322;  Cook  v.  United  States,  138  U.  S. 
157,  34  L.  ed.  906,  11  Sup.  Ct.  Rep.  268; 
Larkin  v.  Saffarans,  15  Fed.  153;  Balti- 
more &  P.  R.  Co.  V.  Grant,  98  U.  S.  398, 
25  L.  ed.  231;  South  Carolina  v.  Gaillard, 
101  U.  S.  433,  25  L.  ed.  937 ;  Ex  parte  Mc- 
Cardie,  7  Wall.  514,  19  L.  ed.  265. 

In  construing  the  constitution  or  statute 
granting  judicial  powers,  such  constitution 
or  statute  reciting  conditions  or  subjects 
over  which  jurisdiction  is  extended  must  be 
construed  as  restrictive,  and  is  not  to  be 
extended  by  implication  or  inference  to  or 
over  subjects  not  designated. 

Ex  parte  McCardle,  supra;  Murdock  v. 
Memphis,  20  Wall.  620,  22  L.  ed.  439; 
Northpoint  Consol.  Irrig.  Co.  v.  Utah  &  S. 
L.  Canal  Co.  14  Utah,  163,  46  Pac.  824; 
United  States  v.  Bailey,  1  McLean,  234, 
Fed.  Cas.  No.  14,495;  Durousseau  v. 
United  States,  6  Cranch,  308,  3  L.  ed.  232; 
Jungk  V.  Holbrook,  15  Utah,  198,  62  Am. 
St.  Rep.  925,  49  Pac.  305;  Eastman  t. 
Gurrey,  14  Utah,  171,  46  Pac.  828;  Farrell 
V.  Winchester  Ave.  R.  Co.  61  Conn.  130,  23 
Atl.  757. 

The  court  should  decline  jurisdiction. 

Meyer  v.  Herrera,  41  Fed.  67 ;  Re  Cilley, 
58  Fed.  984;  State  ex  rel.  Church  v.  Weeln, 
38  Mo.  App.  579 ;  Baltimore  &  P.  R.  Co.  v. 
Grant,  98  U.  S.  398,  25  L.  ed.  231;  South 
Carolina  v.  Gaillard,  101  U.  S.  433,  25  L 
ed.  937. 

Mr.  R.  E.  Wood  submitted  the  cause  for 
defendant  in  error.  Messrs.  S.  P.  Freeing 
and  Smith  C.  Matson  were  on  the  brief: 

It  was  within  the  power  of  Congress  to 
confer,  and  within  the  power  of  the  state  to 
accept,  jurisdiction  of  the  cause  pending  in 
the  territorial  court  of  the  Indian  Territoiy 
in  which  this  appellant  became  surety. 

Benner  v.  Porter,  9  How.  246,  13  U  ed. 
124;  Higgins  v.  Brown,  20  Okla,  355,  94 
Pac.  703;  Damon's  Case,  6  Me.  148;  Hud- 
speth V.  State,  1  Ark.  20;  Drummond  v. 
Republic,  2  Tex.  157;  People  v.  Richardii 
1  Mich.  217,  51  Am.  Dec.  75;  Cook  v. 
United  States,  1  G.  Greene,  66;  Bonsell  t. 
United  States,  1  G.  Greene,  112;  Peopk 
V.  Daniels,  1  CaL  107;  People  v.  Bonds,  1 

S41  V.8* 


1915. 


SOUTHERN  SURETY  00.  v.  OKLAHOMA. 


583-586 


NeT.  33;  People  t.  Logan,  1  Nev.  110;  Wil- 
son V.  People,  3  Colo.  326;  State  v.  Wil- 
liams, 0  Mont.  179,  23  Pac.  335;  State  v. 
Leehman,  2  S.  D.  174,  49  N.  W.  3;  Thomp- 
son y.  Utah,  170  U.  S.  344,  42  L.  ed.  1064, 
18  Sup.  Ct  Rep.  620. 

Mr.  Justice  Van  Devanter  delivered  the 
opinion  of  the  court: 

This  is  an  action  on  a  bail  bond  given  by 
an  accused  held*  upon  a  charge  of  adultery 
to  await  the  action  of  the  grand  jury  at 
McAlester,  in  the  Indian  Territory.  The 
bond  was  given  shortly  before  Oklahoma  be- 
came a  state,  named  the  United  States  as 
the  obligee,  and  called  for  the  accused's  ap- 
pearance before  the  temporary  court  at  Mc- 
Alester at  the  next  term  and  from  term  to 
term  until  discharged.  When  the  courts  of 
the  new  state  were  organized,  an  indict- 
ment for  the  adultery  was  returned  against 
the  accused  in  the  state  court  at  McAlester. 
He  did  not  appear,  a  forfeiture  was  declared, 
and  the  state  sued  on  the  bond,  the  surety 
alone  being  reached  by  the  process.  There 
was  a  judgment  for  the  state,  which  [584] 
was  affirmed  (34  Okla.  781,  127  Pac.  409), 
and  the  surety  sued  out  this  writ  of  error. 

The  Foderal  questions  presented  involve 
the  construction  and  application  of  the  en- 
abling act,  and  are,  first,  whether,  after  the 
admission  of  the  state,  the  further  proceed- 
ings upon  the  charge  of  adultery  were  to  be 
had  in  a  Federal  court  or  in  a  state  court; 
and,  second,  whether,  by  operation  of  law, 
the  state  became  the  beneficiary  of  the  bond 
and  entitled  to  sue  on  it. 

By  reason  of  the  conditions  arising  out 
of  the  presence  of  the  Five  Civilized  Tribes 
no  organized  territorial  government  was 
ever  established  in  the  Indian  Territory. 
Up  to  the  time  It  became  a  part  of  the 
state  of  Oklahoma  it  was  governed  under 
the  immediate  direction  of  Congress,  which 
legislated  for  it  in  respect  of  many  matters 
of  local  or  domestic  concern  which,  in  a 
state,  are  regulated  by  the  state  legislature, 
and  also  applied  to  it  many  laws  dealing 
with  subjects  which,  under  the  Constitution, 
are  within  Federal  rather  than  state  con- 
trol. In  what  was  done  Congress  did  not 
contemplate  that  this  situation  should  be 
of  long  duration,  but,  on  the  contrary,  that 
the  territory  should  be  prepared  for  early 
inclusion  in  a  state.  Courts  designated 
as  *^nited  States  Courts"  were  temporarily 
established^  and  invested  with  a  considerable 
measure  of  civil  and  criminal  jurisdiction, 
and  there  was  also  provision  for  beginning 
public  prosecutions  before  subordinate  mag- 
istrates. There  being  no  organized  local  gov- 
ernment, such  prosecutions,  regardless  of 
their  nature,  were  commenced  and  conducted 
in  the  name  of  the  United  States,  and  in 
60  Ii.  ed. 


taking  bail  bonds  it  was  named  as  the  obli« 
gee. 

The  enabling  act  (chap  3335,  34  Stat,  at 
L.  267,  chap.  2911,  34  SUt.  at  L.  1286)  pro- 
vided that  the  new  state  should  embrace  the 
Indian  Territory  as  well  as  the  territory 
of  Oklahoma.  It  contemplated  that  the 
state,  by  its  Constitution,  would  es- 
tablish a  system  of  courts  of  its  own, 
and  provided  for  dividing  the  state  in- 
to two  districts,  [585]  and  creating  therein 
United  States  courts  like  those  in  other 
states.  The  temporary  courts  were  to  go 
out  of  existence,  and  this  made  it  necessary 
to  provide  for  the  disposition  of  the  busi- 
ness pending  before  them  in  various  stages. 
To  that  end  the  following  provisi<His,  among 
others,  not  material  here,  were  embodied  in 
an  amendment  to  the  act  (34  Stat,  at  L. 
1286,  1287,  chap.  2911): 

"Sec.  16.  .  .  .  Prosecutions  for  all 
crimes  and  offenses  committed  within  the 
territory  of  Oklahoma  or  in  the  Indian 
Territory,  pending  in  the  district  courts 
of  the  territory  of  Oklahoma  or  in  the 
United  States  courts  in  the  Indian  Terri- 
tory upon  the  admission  of  such  territories 
as  a  state,  which,  had  they  been  committed 
within  a  state,  would  have  been  cognizable 
in  the  Federal  courts,  shall  be  transferred 
to  and  be  proceeded  with  in  the  United 
States  circuit  or  district  court  established 
by  this  act  for  the  district  in  which  the  of- 
fenses were  committed,  in  the  same  manner 
and  with  the  same  effect  as  if  they  had  been 
committed  within  a  state." 

'*Sec.  20.  That  all  causes,  proceedings,  and 
matters,  civil  or  criminal,  pending  in  the 
district  courts  of  Oklahoma  territory,  or 
in  the  United  Statep  courts  in  the  Indian 
Territory,  at  the  time  said  territories 
become  a  state,  not  transferred  to  the 
United  States  circuit  or  district  courts 
in  the  state  of  Oklahoma,  shall  be 
proceeded  with,  held,  and  determined  by  the 
courts  of  said  state,  the  successors  of  said 
district  courts  of  the  territory  of  Oklahoma, 
and  the  United  States  courts  in  the  Indian 
Territory;  .  .  .  All  criminal  cases  pend- 
ing in  the  United  States  courts  in  the  In- 
dian Territory,  not  transferred  to  the  Unit- 
ed States  circuit  or  district  courts  in  the 
state  of  Oklahoma,  shall  be  prosecuted  to  a 
final  determination  in  the  state  courts  of 
Oklahoma  under  the  laws  now  in  force  in 
that  territory." 

Section  28  of  the  schedule  to  the  state 
Constitution  referred  to  these  and  other 
closely  related  provisions,  and  [586]  said, 
they  "are  hereby  accepted  and  the  juris- 
diction of  the  cases  enumerated  therein  is 
hereby  assumed  by  the  courts  of  the  state." 

Thus,  by  the  concurrent 'actioxk  of  Con- 
gress and  the  state,  all  prosee^   ' 


686-588 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbm, 


ing  in  the  temporary  courts  of  the  Indian 
Territory,  for  offenses  which  would  not  have 
been  cognizable  in  a  court  of  the  United 
States  had  they  been  committed  within  a 
state,  were  to  be  proceeded  with  in  the 
courts  of  the  state,  as  successors  to  the 
temporary  courts.  In  other  words,  the  test 
of  the  jurisdiction  of  the  state  courts  was 
to  be  the  same  that  would  have  applied  had 
the  Indian  Territory  been  a  state  when  the 
offenses  were  committed.  In  this  view  it  is 
plain  that  the  prosecut'.on  in  question  was 
rightly  proceeded  with  in  the  state  court. 
Adultery  is  an  offense  against  the  marriage 
relation,  and  belongs  to  the  class  of  subjects 
which  each  state  controls  in  its  own  way. 
It  is  a  punishable  offense  only  where  the  com- 
mon or  statute  law  of  the  state  makes  it 
such ;  and  where  punishable,  it  is  cognizable 
only  in  the  courts  of  the  state.  Of  course, 
we  exclude  from  present  consideration  forts, 
arsenals,  and  like  places  within  the  exterior 
limits  of  a  state,  but  over  which  exclusive 
jurisdiction  has  been  ceded  to  the  United 
States,  because  they  are  regarded,  not  as 
part  of  the  state,  but  as  excepted  out  of  it. 
And  we  pass  the  question  of  the  power  of 
Congress  to  deal  with  such  offenses  in  re- 
spect of  tribal  Indians  within  a  state,  be- 
cause the  statute  under  which  this  prosecu- 
tion arose  was  general  in  its  terms,  and  be- 
cause it  is  not  claimed  that  either  of  the 
participants  in  the  adulterous  act  was  an 
Indian. 

Some  reliance  is  placed  upon  §  14  of  the 
enabling  act,  which  refers  in  part  to  offenses 
committed  prior  to  the  state's  admission; 
but  of  this  section  it  is  enough  for  present 
purposes  to  say  that  when  it  is  read  in 
connection  with  the  provisions  of  §§  16  and 
20,  before  quoted,  it  is  apparent  that  it  was 
intended  to  mark  the  line  separating  [587] 
the  jurisdiction  of  the  Federal  courts  in  the 
two  districts,  as  between  themselves,  and 
not  the  line  separating  their  jurisdiction 
from  that  of  the  state  courts. 

Because  no  indictment  was  returned  in 
the  temporary  court  at  McAlester  before  the 
state  was  admitted,  it  is  contended  that 
this  prosecution  was  not  "pending"  in  that 
court  in  the  sense  of  §§  16  and  20.  These 
sections  included  all  pending  "causes,  pro- 
ceedings, and  matters,"  as  well  as  "prosecu- 
tions" and  "cases,"  and  evidently  were  de- 
signed to  be  very  comprehensive.  The  ac- 
cused not  only  was  held  by  a  magistrate  to 
await  the  action  of  the  grand  jury  at  the 
next  term  of  the  temporary  court,  but  gave 
bail  for  his  appearance  in  the  court  at  that 
term.  After  this  was  done  we  think  a  pros- 
ecution or  proceeding  was  pending  in  the 
court  in  the  sense  of  the  statute.  That  no 
indictment  was  returned  in  that  court  in  ex- 
plained by  the  fact  that  the  court,  through 
1190 


the  state's  admission,  went  out  of  existence 
before  an  indictment  could  be  found  and 
returned  in  regular  course. 

The  enabling  act  and  the  state  Constitu- 
tion united  hi  declaring  that  the  state 
courts,  in  respect  of  the  prosecutions  which 
were  to  be  transferred  to  them,  should 
be  the  successors  of  the  temporary  courts. 
The  bail  bond  was  given  several  months  after 
the  act  and  the  state  Constitution  were 
adopted.  Indeed,  the  state's  admission  was 
inuninent  at  the  time.  So,  the  bond  must 
be  taken  as  given  with  the  approaching 
change  in  mind,  and  as  meaning  that  the 
accused's  appearance  should  be  in  the  state 
court  as  t^e  legal  successor  of  the  tem- 
porary court,  if  the  latter  should  go  out  of 
existence  before  the  time  for  appearance 
arrived.  The  law  existing  when  a  contract 
is  made,  and  affecting  its  performance,  be- 
comes a  part  of  it.  Northern  P.  K.  Co. 
V.  Wall,  241  U.  S.  87,  ante,  905,  36  Sup.  Ct 
Rep.  493.  , 

The  enabling  act,  when  taken  in  connec- 
tion with  the  schedule  to  the  state  Constitu- 
tion, leaves  no  doubt  that  the  state  was  to 
take  the  place  of  the  United  States  in 
[588]  dealing  with  and  conducting  this 
prosecution.  The  bail  bond  was  essentially 
a  part  of  the  proceeding  that  was  trans- 
ferred, and  was  without  force  or  value  in 
any  other  connection.  So,  when  the  power 
and  duty  resting  upon  the  United  States 
were  passed  to  the  state,  there  went  with 
them  the  rig^t  to  use  and  enforce  the  bond 
as  the  United  States  might  have  done,  had 
the  proceeding  remained  in  its  control;  in 
other  words,  the  state  became,  by  operation 
of  law,  the  beneficiary  of  the  bond,  and  was 
entitled  to  suie  on  it  when  its  condition  was 
broken. 

Judgment  affirmed. 


WILLIAM  L.  DAYTON,  Trustee,  etc, 

V. 

A  H.  STANARD,  Treasurer  of  the  County 
of  Pueblo,  Colorado,  et  aL 

(See  S.  C.  Reporter's  ed.  588-690.) 

• 
Bankraptoy — property  in  cnstodUi  le^ 
—  sale  for  taxes  and  aasessmonts. 

1.  Sales  -for  taxes  and  special  assess- 
ments of  real  property  belonging  to  a  bank- 
rupt estate  then  in  the  course  of  adminis- 
tration in  a  court  of  bankruptcy  are  invalid 
where  made  without  leave  of  the  bankruptcy 
court. 
[For  other  cases,   see   Bankruptcy,   XL  b.  In 

Digest  Sap.  Ct   1908.] 

* 

Note. — ^As  to  right  to  enforce  payment 
of  delinquent  taxes  on  property  in  cu9iodia 
legis — see  note  to  Eppstein  ▼.  Orahood*  17 
L.R.A.(N.S.)   465. 

S41  U.  8* 


2915.  DATTON  ▼.  8TANARD. 


Bankruptcy  —  property  In  cnstodia  legis 
—  relmbarsement  of  certlflcate  hold* 
ers. 

2.  Holders  of  oertificates  of  purchase 
of  real  property  belonging  to  a  bankrupt 
estate  which  was  sold  for  taxes  and  special 
assessments  when  the  property  was  in  the 
course  of  administration  in  a  court  of  bank- 
ruptcy are  entitled  to  be  reimbursed  out  of 
the  general  assets,  upon  the  cancelation  of 
their  certificates,  for  the  taxes  and  assess 


Fed.  42,  209  U.  8.  545,  52  L.  ed.  919,  28 
Snp.  Ct.  Rep.  571;  Re  Dana,  98  C.  C.  A. 
238,  167  Fed.  529;  Mound  Mines  Co.  ▼. 
Hawthorne,  97  G.  C.  A.  400,  173  Fed.  882; 
Re  Rathman,  106  C.  C.  A.  253,  183  Fed. 
913;  Lazarus  ▼.  Prentice,  234  U.  S.  263, 
58  L.  ed.  1305,  84  Sup.  Ct.  Rep.  851;  See* 
ond  Employers'  Liability  Cases  (Mondou  t. 
New  York,  N.  H.  &  H.  R.  Co.)  223  U.  S.  1, 
57,  56  L.  ed.  327,  349,  38  L.R.A.(N.S.)  44, 

ments  paid  by  them,  with  interest  at  the  23  Sup.  Ct.  Rep.  169,  1  N.  C.  C.  A.  875; 

ordinary  lepl  rate,  by  v^^^^^^^  Hecox  v.  Teller  County,  117  C.  C.  A.  388, 

visions  of  the  bankrupt  act  of  July  1,  1898  -q^  ^  ,    ^,.                 •"                                 ' 

(30  Stat,  at  L.  563,  chap.  541,  Comp.  Stat.  ^^^  *^*  "^*' 

1913,  §  9648),  S  64a,  that  the  court  shall  ^0  ^^  interest  and  penalties  accruing, 

order  the  trustee  to  pay  all  taxes  legally  under  the  terms  of  the  state  statutes,  for 

due  and  owing  by  the  bankrupt  in  advance  nonpayment    of    the    taxes    at    particular 

of  payment  of  dividends  to  creditors,  but  times,'  to  be  counted  as  part  of  the  taxes  to 

are  not  entitled  to  the  larger  interest  re-  \^  paid  by  the  trustee? 

ouired  by  the  local  law  to  be  paid  on  re-  j^  William  F.  Fisher  &  Co.  135  Fed.  228, 

i^T^Ll'Ze^s^'t.nl.ru^t^^^   II.   b.  In  1^8  Fed.  907;  Re  Wylie,  82  C.  C.  A.  411. 

Digest   Sup.  Ct   1908.]  153  Fed.  281. 

rv     ACkA  1  Taxes  are  to  be  paid  on  property  in  the 

[No.  404.]  hands  of  a  trustee  in  bankruptcy  only  in  the 

*t^v    -..-LJT              n    tt%ia     •iv.'jjT  instances  and  in  the  way  provided  by  the 

Submitted  Janu.^  7.  1916.    Decided  June  bankruptcy  law,  and  ap^llant  holders  of 

'  certificates  of  purchase  are  not  within  the 

ON  WRIT  of  Certiorari  to  the  United  "^e^^  .„  •    q-  _i    k^  n    r.    a    ono    ^^t 

SUtes  Circuit  Court  of  Appeals  for  the  ^J^*!^  7;  ^'^«^^'  l^  f '  ^'  ^'  ^^\}^^ 

Eighth   Circuit  to  review  a  d^ree  which,  l^'  ^L^^rTL^'/Ao    ?I"I  ^' v""'  ^i  ^' 

modifying  a  decree  of  the  District  Court  for  ^'^'  ^«'  l^l  ^5^1  If '  ^^  Am.  N^.  Rep. 

the  District  of  Colorado,  directed  that  hold-  ^fi'^^JI?^  ^"  ]ll  V:  \  ^'^^  h"^' 1^!' 

ers  of  certificates  of  ourchase  at  tax  sales  ^^  ^^P*  ^-  ^^P*  ^^®'  ^^  ^^'  ^^^'  ^P'  ^^^'' 

ers  01  certincates  Of  purcnase  at  tax  sales  ^  .         g           ^           Diamonds,   2   L.R.A. 

made  pending  bankruptcy  proceedmgs  be  re-  /^s  ^  185  72  C  CJ   A   fl   1^0  Fpd   flfli 

imbursed  out  of  the  general  fund. for  the  ^^^'^  ^^^*  ^^  ^'  ^'  ^'  ®'  ^'^  ^^'  ®®^- 

amounts  of  the  taxes  and  assessments,  to-  Mr.  Horace  Phelps  submitted  the  cause 

gether  with  interest  at  the  rate  payable  un-  for  respondents: 

der  the  local  law  on  redemption  from  tax  Even  in  banlcruptcy  proceedings  the  lien 

sales.     Modified  by  reducing  the  allowance  of  a  tax  purchaser  may  not  be  destroyed 

of  interest  to  the  ordinary  legal  rate,  and  without  payment  of  his  taxes. 

as  modified  affirmed.  Re    Eppstein,    17    L.R.A.(N.S.)    465,    84 

See  same  case  below,  137  C.  C.  A.  35,  220  C.  C.  A.  208,  156  Fed.  42. 

Fed.  441.  Before  the  district  court  of  the  United 

The  facts  are  stated  in  the  opinion.  States,  in  an  action  brought  by  the  trus- 

Mr.  Harvey  Bidden  submitted  the  cause  *••  i"  ^'Wcl'  these  tax  purchasers  are  de- 

for  oetitioner  •  fendants  or  respondents,  can  declare  these 

When  property  is  in  the  custody  of  the  J"  "^f  *•?*, "***,?'  V?*  •*'"*"=***»  ^ 

court.  whethVr  through  and  by  a  receiver.  ^  )^«*'  »'  "^'^^roy  the  hen  and  relegate 

trustee    in    bankrupt^,    or    other    similar  "•  *«  the  condition  of  a  gwieral  creditor. 

means,  neither  the  title  nor  possession  can  '^^^  ,"'™*  ''^Tl  *ir   ""^-  ^  /^f 

be  interfered  with,  nor  a  lien  fixed  upon  It.  "1^^}^'  ?«'•«'«>**<>  «»«  provisions  of  the 

nor  a  change  in  the  conditions  of  the  prop-  n^V***  ^'oi*<">-                   „»,„.„ 

— ^«  ^.  *wit  i^  -..j«  ^^^^t  K.  ^,^t.^t!L  Whitehead  v.  Fanners'  Loan  ft  T.  Co.  89 

SthfJ'Jr                '         ^    ^  Pen-i'wwn  c.  C.  A.  34,  98  Fed.  13,   Hecox  v.  Teller 

r^E"  149  U.  a  164,  87  K  ed.  689.  Co-*^  1"  C.  C.  ^338.  IM  /ed    ^4, 

18  Supfa.  Rep.  785;  King  v.  Wooten,  4  f^^T' ^l^^'i'^' £• -^^  "*'"?.  ^•*- 

C.  C.  A.  619.  2  U.  S.  App.  661.  64  Fed.  612;  256;   Virginia    T.  4  C.  St«.l  ft  L  Co.  v. 

Ledoux  V.  La  Bee,  83  Fed.  761;   Clark  v.  B"»^^Ir,"i  °*;  ^c  !'?J."^*'  ^,^^ 

McOhee.  31  C.  C.  A.  321,  69  U.  S.  App.  69,  "7  Fed.  276;   Re  Scheldt  Bros.  177  Fed. 

87  Fed.  789;  High,  Receivers,  3d  ed.  8  140a;  ^^■ 

Virginia  T.  ft  C.  Steel  ft  I.  Co.  v.  Bristol  The  manifest  intent  of  the  law  is  that 

Land  Co.  88  Fed.  134;  Johnson  v.  Southern  while  the  estate  is  in  the  hands  of  the  tnis- 

Bldg.  ft  L.  Asso.  132  Fed.  640;  Re  Eppstein,  tee,  his  custody  shall  not  constitute  a  bar- 

17  L.RA.(KA)  466,  84  0.  0.  A.  208,  166  rier  to  prevent  the  eolleetion  of  taxes  whieh 

6«  Ii.  ed.  VV%V 


689-591 


SUPREME  COUET  OF  THE  UNITED  STATES. 


Oct.  Term, 


would  be  collectable  under  the  law,  if  the 
property  had  remained  in  the  poBsesBion 
and  control  of  the  bankrupt  himself. 

Re  Conhaim,  100  Fed.  268. 

Even  thou^  the  proceedings  of  the  sale 
are  void,  still  the  owner  of  the  certificate 
must  have  his  money  before  the  lien  can 
be  destroyed. 

Pueblo  Realty  Co.  ▼.  Tate,  32  Colo.  67, 
75  Pac  402. 

[589]  Mr.  Justice  Van  Devanter  de- 
livered the  opinion  of  the  court: 

This  is  a  controversy  growing  out  of  the 
sale  for  taxes  and  special  assessments  of 
divers  tracts  of  real  property  belonging  to 
a  bankrupt  estate  then  in  the  course  of  ad- 
ministration in  a  court  of  bankruptcy.  The 
property  was  in  ottstodia  legia  and  was  sold 
without  leave  of  court.  Because  of  tliis  the 
court  held  the  sales  invalid,  and  entered  a 
decree  canceling  the  certificates  of  purchase, 
and  enjoining  the  county  treasurer  from 
issuing  tax  deeds  thereon.  Thus  far  there 
is  no  room  to  complain.  Wiswall  v.  Samp- 
son, 14  How.  52,  14  L.  ed.  322;  Barton  v. 
Barbour,  104  U.  S.  126,  26  L.  ed.  672;  Re 
Tyler,  149  U.  S.  164,  37  L.  ed.  689,  13  Sup. 
Ct.  Rep.  786 ;  Re  Eppstein,  17  L.R.A.  ( N.S. ) 
465,  84  C.  C.  A.  208,  156  Fed.  42.  The  court 
further  directed  in  its  decree  that  the  sever- 
al tracts  be  sold  by  the  trustee  free  from 
any  lien  for  the  taxes  and  assessments,  and 
that  the  holders  of  the  certificates  of  pur- 
chase be  severally  reimbursed  out  of  the 
proceeds  of  the  respective  tracts,  but  not  out 
of  the  general  assets,  for  the  taxes  and 
special  assessments  paid  thereon,  with  the 
interest  and  penalties  which  accrued  prior 
to  the  time  the  trustee  took  possession.  Up- 
on appeal  to  the  court  of  appeals,  that  court 
modified  the  decree  by  requiring  that  the 
certificate  holders  be  reimbursed  for  the 
amounts  paid  at  such  sales  and  for  subse- 
quent taxes,  together  with  interest  thereon, 
"as  provided  by  the  laws  of  Colorado  on 
redemption  from  tax  sales  of  land,"  the 
same  to  be  paid  "out  of  the  general  fund, 
regardless  of  the  amount  which  the  prop- 
erty may  bring  at  bankruptcy  sale."  137 
C.  C.  A.  35,  220  Fed.  441. 

The  trustee  urges,  first,  that  the  certifi- 
cate holders  should  not  be  reimbursed  at 
all;  second,  that,  if  reimbursed,  they  should 
not  be  allowed  any  interest  or  penalties 
other  than  such  as  accrued  prior  to  the 
time  when  the  trustee  qualified  and  took 
possession;  and,  third,  that  they  should  not 
be  reimbursed  out  of  the  general  [590] 
assets,  but  only  out  of  the  proceeds  of  the 
trustee's  sale  of  the  tracks  for  which  they 
severally  had  certificates. 

Considering  the  plain  provision  in  §  64a 
of  the  bankruptcy  act»  that  "the  court  shall 
119S 


order  the  trustee  to  pay  all  taxes  legally  due 
and  owing  by  the  bankrupt  .  .  .  in  ad- 
vance of  the  payment  of  dividends  to  cred- 
itors" [30  Stat,  at  L.  563,  chap.  541,  Comp. 
Stat.  1913,  §  9648],  we  enterUin  no  doubt 
of  the  propriety  of  requiring  that  the  cer- 
tificate holders,  who  had  paid  the  taxes  and 
assessments  at  the  sales,  be  reimbursed  up- 
on the  cancelation  of  their  certificates,  or 
of  requiring  that  the  reimbursement  be  out 
of  the  general  assets.  The  taxes  and  assess- 
ments were  not  merely  charges  upon  the 
tracts  that  were  sold,  but  against  the  gen- 
eral estate  as  well. 

And  while  we  are  of  opinion  that  the  cer- 
tificate holders  were  entitled  to  interest  up- 
on the  amounts  paid,  at  the  ordinary  legal 
rate,  applicable  in  the  absence  of  an  express 
contract,  we  think  they  were  not  entitled 
to  the  larger  interest  required  to  be  paid  on 
redemption  from  tax  sales.  They  were  not 
in  a  position  to  stand  upon  the  terms  of 
the  redemption  statute,  for  the  sales  were 
invalid,  and  the  only  recognition  which  they 
could  ask  was  such  as  resulted  from  an  ap- 
plication of  equitable  principles  to  their 
situation.  The  decree  of  the  Circuit  Court 
of  Appeals  is  modified  to  conform  to  what 
is  here  said  respecting  the  allowance  of  in- 
terest.   In  other  respects  it  is  affirmed. 

Decree  modified  and  affirmed. 


[591]  UNITED  STATES,  Plff.  in  Err., 

▼. 

FRED  NICE. 

(See  S.  C.  Reporter's  ed.  591-^1.) 

Indian  allottees  —  emancipation  from 
Federal  control. 

1.  No  intention  to  dissolve  the  tribal 
relations  and  terminate  the  national  guard- 
ianship upon  the  making  of  the  allotments 
and  the  issuing  of  the  trust  patents  without 
waiting  for  Uie  expiration  of  the  trust 
period  can  be  gathered  from  the  Indian  al- 
lotment act  of  February  8,  1887  (24  Stat, 
at  L.  388,  chap.  119,  Comp.  Stat  1913, 
§  4195),  §  6,  which  grants  to  the  allottees 
the  privilege  of  citizenship,  and  gives  them 
the  benefit  of,  and  requires  them  to  be  sub- 
ject to,  the  laws,  both  civil  and  criminal, 
of  the  state  of  their  residence,  in  view  of 
the  provision  of  §  5,  which,  after  requiring 
that  the  title  to  the  allotted  lands  be  with- 
held for  twentv-five  ^ars,  and  rendering 
them  inalienable  during  that  period,  au- 
thorizes  negotiations  with  the  tribe,  either 
before  or  after  the  allotments  are  completed, 
for  the  purchase  of  so  much  of  the  surplus 
lands  as  the  tribe  shall,  from  time  to  time, 
consent  to  sell,  directs  that  the  purchase 
money  be  held  in  the  treasury  for  the  sole 
use  of  the  tribe,  and  requires  that  it,  with 
the  interest  thereon,  shall  be  at  all  times 
subject  to  appropriation  by   Congress  for 

S41  V.  S. 


1915. 


UNITED  STATES  v.  NICE. 


the  education  and  civilization  of  snch  tribe 
or  its  members. 

[For  other  cases,  see  Indians,  I.,  in  Digest 
Sup.  Ct.  1908.] 

Indian  allottees  —  Federal  control  — 
emancipation  —  sale  of  intoxicating 
liqnor. 

2.  So  long  as^Indian  allottees  under  the 
acts  of  February  8,  1887  (24  Stat,  at  L.  868, 
chap.  119,  Comp.  Stat.  1913,  §  4195),  or 
March  2,  1889  (25  Stat,  at  L.  888,  chap. 
405),  remain  tribal  Indians  and  under  na- 
tional guardianship^  «.  e.,  during  the  twen- 
ty-five years  in  which,  under  those  acts,  the 
allotted  lands  are  to  be  held  in  trust  by 
the  government  and  are  to  be  inalienable. 
Congress  may,  as  is  done  by  the  act  of 
January  30,  1807  (29  Stat,  at  L.  506,  chap. 
109,  Comp.  Stat.  1913,  §  4137),  regulate  or 
prohibit  the  sale  of  intoxicating  liquors  to 
such  Indians  within  a  state. 
[For  other  cases,  see  iDdians,  04-61,  In  Digest 
Sup.    Ct.   1908.1 

[No.  681.] 

Argued  and  submitted  April  24,  1916.    De- 
cided June  12,  1916. 

IN  ERROR  to  the  District  Court  of  the 
United  States  for  the  District  of  South 
Dakota  to  review  a  judgment  sustaining  a 
demurrer  to  and  dismissing  an  indictment 
charging  the  unlawful  sale  of  intoxicating 
liquors  to  an  allottee  within  the  state 
Reversed. 
The  facts  are  stated  in  the  opinion. 

Assistant  Attorney  General  Warren  ar- 
gued the  cause  and  filed  a  brief  for  plain- 
tiff in  error: 

The  decision  of  this  court  in  United 
States  V.  Pelican,  232  U.  S.  442,  58  L.  ed. 
676,  34  Sup.  Ct.  Rep.  396,  was  clearly  in- 
consistcnc  with  Re  Heff,  197  U.  S.  488,  49 
L.  ed.  848,  25  Sup.  Ct.  Rep.  506,  and  must 
be  deemed  to  overrule  it. 

The  power  of  Congress  to  regulate  com- 
merce with  the  Indian  tribes  is  exclusive. 

Worcester  v.  Georgia,  6  Pet.  615,  560,  8 
L.  ed.  483,  501;  Howard  v.  Ingersoll,  13 
How.  381»  400,  14  L.  ed.  189,  201;  United 
States  T.  43  Gallons  of  Whislcey,  93  U.  S. 
188,  194,  23  L.  ed.  846,  847;  Dick  v.  United 
States,  208  U.  8.  340,  52  I*,  ed.  520,  28  Sup. 
Ct.  Rep.  399;  Joplin  Mercantile  Co.  v. 
United  States,  236  U.  S.  531,  545,  59  L.  ed. 
706,  711,  35  Sup.  Ct.  Rep.  291. 

Commerce  with  the  Indian  tribes  includes 
commerce  with  the  individual  members  of 
a  tribe. 

United  States  ▼.  Holliday,  3  Wall.  407, 
18  L.  ed.  182. 

The  act  of  January  30,  1897,  is  a  regula- 
tion of  commerce  with  the  Indian  tribes. 

Ibid. 

The  Heff  Case  was  wrong  in  treating  the 
act  of  1897  merely  as  an  exerdse  of  police 
power.  It  waa  enacted  under  the  commerce 
60  Ii.  ed. 


clause  of  the  Constitution;  and  the  power 
to  regulate  trade  with  the  Indian  tribes 
belongs  exclusively  to  0>ngre88  as  long  as 
any  Indian  tribal  status  exists. 

Ibid. 

It  is  for  Congress,  and  not  for  this  court, 
to  say  when  the  tribal  existence  shall  be 
deemed  to  have  terminated. 

United  States  y.  43  Chillons  of  Whiskey, 
108  U.  S.  491,  496,  27  h,  ed.  803,  805,  2  Sup. 
Ct.  Rep.  906,  93  U.  S.  188,  195,  23  L.  ed. 
846,  847;  United  States  v.  Sandoval,  231 
U.  S.  28,  46,  58  L.  ed.  107,  114,  34  Sup.  Ct. 
Rep.  1;  Perrin  v.  United  SUtes,  232  U.  S. 
478,  482,  486,  58  L.  ed.  691,  694,  695,  34 
Sup.  Ct.  Rep.  387;  Lone  Wolf  ▼.  Hitchcock, 

187  U.  S.  553,  565,  47  L.  ed.  299,  306,  23 
Sup.  Ct.  Rep.  21 G;  United  States  v.  Rickert, 

188  U.  S.  432,  433,  445,  47  L.  ed.  532,  534, 
539,  23  Sup.  Ct.  Rep.  478;  Rainbow  v. 
Young,  88  C.  C.  A.  653,  161  Fed.  835 ;  Unit- 
ed States  V.  Sutton,  215  U.  S.  291,  296,  54 
L.  ed.  200,  202,  30  Sup.  CJt.  Rep.  116; 
lifarchie  Tiger  v.  Western  Invest.  Co.  221 
U.  S.  280,  315,  316,  55  L.  cd.  738,  749,  750, 
31  Sup.  Ct.  Rep.  578. 

The  grant  of  citizenship  does  not,  ipso 
facto,  terminate  the  tribal  status. 

United  States  v.  Sandoval,  231  U.  S.  28, 

46,  58  L.  ed.  107,  114,  34  Sup.  Ct.  Rep.  1. 
An  Indian  allottee,  even  though  a  citi- 
zen, is  still  an  Indian,  and  an  Indian  ward 
as  well. 

United  States  v.  Celestine,  216  U.  S.  278, 
200,  54  L.  ed.  195,  109,  30  Sup.  Ct.  Rep. 
93;  United  States  v.  Pelican,  232  U.  S. 
442,  58  L.  ed.  676,  34  Sup.  Ct.  Rep.  396; 
United  States  v.  Sandoval,  231  U.  S.  28, 

47,  48,  58  Lw  ed.  107,  114,  34  Sup.  Ct  Rep. 
1. 

Congress  has  no  authority  to  dele- 
gate a  power  vested  by  the  Constitution  in 
it  exclusively. 

Stoutenburgh  v.  Hennick,  129  U.  S.  141, 
149,  32  L.  ed.  637,  639,  9  Sup.  Ct.  Rep. 
256;  Re  Rahrer,  140  U.  S.  545,  35  L.  ed. 
572,  11  Sup.  Ct.  Rep.  865;  CJooley  v.  Port 
Wardens,  12  How.  290,  317,  13  L.  ed.  996, 
1004. 

Even  if  it  could  so  delegate.  Congress 
must  act  expressly,  and  not  by  implica- 
tion, for  the  presumption  is  strongly 
against  the  surrender  of  Federal  power  by 
implication. 

Rhodes  V.  Iowa,  170  U.  S.  412,  42  Lw  ed. 
1088,  18  Sup.  Ct  Rep.  664. 

Congress,  by  the  act  of  1887,  dearly  did 
not  terminate  the  tribal  relationship  or 
status  of  the  allottee  Indians.  Hence  it 
had  no  power  irrevocably  to  commit  the 
regulation  of  commerce  with  the  Indian 
tribes  into  the  hands  of  the  states.  And 
when,  by  the  act  of  1897,  it  exercised  power 
to  r^B^ulate,  it  had  the  right  to  do  so. 


595-597 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm* 


Farrell  ▼.  United  States,  49  C.  C.  A.  188, 
110  Fed.  942. 

Mr.  O.  D.  Olmstead  submitted  the  cause 
for  defendant  in  error.  Messrs.  W.  B. 
Backus  and  W.  J.  Hooper  were  on  the 
brief: 

The  decision  of  the  district  court  was 
based  on  the  construction  given  to  the  stat- 
ute under  which  the  indictment  was 
drawn  in  Re  Heff,  197  U.  S.  488,  49  L.  ed. 
848,  25  Sup.  Ct.  Rep.  600.  The  defendant 
in  error  stands  on  the  decision  in  that  case, 
and  respectfully  contends  that  this  decision 
correctly  construes  the  statute,  and  that, 
thereunder,  he  is  not  guilty  of  an  offense. 

[595]  Mr.  Justice  Van  Devanter  de- 
livered the  opinion  of  the  court: 

This  is  a  prosecution  for  selling  whisky 
and  other  intoxicating  liquors  to  an  Indian, 
in  violation  of  the  act  of  January  30,  1897 
(chap.  109,  29  Stat,  at  L.  506,  Comp.  Stat. 
1913,  §  4137).  According  to  the  indict- 
ment, the  sale  was  made  August  9,  1914, 
in  Tripp  county,  South  Dakota;  the  Indian 
was  a  member  of  the  Sioux  Tribe,  a  ward  of 
the  United  States,  and  under  the  charge 
of  an  Indian  agent;  and  the  United  States 
was  still  holding  in  trust  the  title  to  land 
wli it'll  had  been  allotted  to  him  April  29, 
1902.  A  demurrer  was  sustained  and  the 
indictment  dismissed  on  the  ground  that 
the  statute,  in  so  far  as  it  purports  to  em- 
brace such  a  case,  is  invalid,  because  in 
cxci'ss  of  the  power  of  Congress.  The  case 
is  lipre  on  direct  writ  of  error  under  the 
criminal  appeals  act  (chap.  2564,  34  Stat, 
at  L.  1246,  Comp.  Stat.  1913,  §  1704). 

By  the  act  of  1897  the  sale  of  intoxi- 
cating liquor  to  "any  Indian  to  whom  allot- 
ment of  land  has  been  made  while  the  title 
to  the  same  shall  be  held  in  trust  by 
the  government,  or  to  any  Indian  a  ward 
of  the  government  under  charge  of  any  In- 
dian superintendent  or  agent,  or  any  In- 
dian, including  mixed  bloods,  over  whom 
the  government,  through  its  departments, 
exercises  guardianship,"  is  denounced  as  a 
punishable  offense. 

The  allotment  to  this  Indian  was  made 
from  the  tribal  lands  in  the  Rosebud  Reser- 
vation, in  South  Dakota,  under  the  act  of 
March  2,  1889  (chap.  405,  25  SUt.  at  L. 
888),  the  11th  section  of  which  provided 
that  each  allotment  should  be  evidenced  by 
a  patent,  inaptly  so  called,  declaring  that 
for  a  period  of  twenty-five  years — and  for 
a  further  period  if  the  President  should 
so  direct — ^the  United  States  would  hold 
the  allotted  land  in  trust  for  the  sole  use 
and  benefit  of  the  allottee,  or,  in  case  of  his 
death,  of  his  heirs,  and  at  the  end  of  that 
period  would  convey  the  [596]  aame  to  him 
1194 


or  his  heirs  in  fee,  discharged  of  .the  trust 
and  free  of  all  charge  or  encumbrance; 
that  any  lease  or  conveyance  of  the  land, 
or  contract  touching  the  same,  made  dur- 
ing the  trust  period,  should  be  null  and 
void,  and  that  each  allottee  should  **bB 
entitled  to  all  the  rights  tfnd  privileges  and 
be  subject  td  all  the  provisions"  of  f  6  of 
the  general  allotment  act  of  February  8, 
1887  (chap.  119,  24  Stat,  at  L.  388,  Comp. 
Stat.  1913,  §  4195).  The  act  of  1889  recog- 
nized the  existence  of  the  tribe,  as  such, 
and  plainly  disclosed  that  the  tribal  rela- 
tion, although  ultimately  to  be  dissolved, 
was  not  to  be  terminated  by  the  making  or 
taking  of  allotments.  In  the  acts  of  March 
3,  1899  (chap.  450,  30  Stat,  at  L.  1362), 
and  March  2,  1907  (chap.  2536,  34  Stat 
at  L.  1230),  that  relation  was  recognized 
as  still  continuing,  and  nothing  is  found 
elsewhere  indicating  that  it  was  to  termi- 
nate short  of  the  expiration  of  the  trust 
period. 

By  the  general  allotment  act  of  1887 
provision  was  made  for  allotting  lands  in 
any  tribal  reservation  in  severalty  to  mem- 
bers of  the  tribe,  for  issuing  to  each  allot- 
tee a  trust  patent  similar  to  that  just  de- 
scribed and  with  a  like  restraint  upon 
alienation,  and  for  conveying  the  fee  to  the 
allottee  or  his  heirs  at  the  end  of  the  trust 
period.  Its  6th  section,  to  which  particular 
reference  was  made  in  f  H  of  the  act  of 
1889,  declared  that,  upon  the  completion  of 
the  allotments  and  the  patenting  of  the 
lands,  the  allottees  should  have  "the  bene- 
fit of  and  be  subject  to  the  laws,  both  civil 
and  criminal,  of  the  state  or  territory"  of 
their  residence,  and  that  all  Indians  bom 
in  the  United  States,  who  were  recipients 
of  allotments  under  "this  act,  or  under  any 
law  or  treaty,"  should  be  citizens  of  the 
United  States,  and  entitled  to  all  the  rights, 
privileges,  and  immunities  of  such  citizens. 
This  act,  like  that  of  1889,  disclosed  that 
the  tribal  relation,  while  ultimately  to  be 
broken  up,  was  not  to  be  dissolved  by  the 
making  or  taking  of  allotments,  and  subse- 
quent legislation  8how.i  repeated  instances 
in  which  the  tribal  relation  of  Indians 
[597]  having  allotments  under  the  act  was 
recognized  during  the  trust  period  as  still 
continuing. 

With  this  statement  of  the  case,  we  come 
to  the  questions  presented  for  decision, 
which  are  these:  What  was  the  status  of 
this  Indian  at  the  time  the  whisky  and 
other  liquors  are  alleged  to  have  been  soUi 
to  him?  And  is  it  within  the  power  of 
Congress  to  regulate  or  prohibit  the  sale 
of  intoxicating  liquor  to  Indians  in  his 
situation  T 

The  power  of  Congress  to  regulate  or 
prohibit  traffic  in  intoxicating  liquor  with 
tribal  Indians  withis  a  state,  whether  upon 

S41  U.  8. 


1015. 


UNITED  STATES  ▼.  NICE. 


697-609 


or  off  an  Indian  reservation,  is  well  settled. 
It  has  long  been  exercised,  and  has  repeat- 
edly been  sustained  by  this,  court.  Its 
source  is  twofold;  first,  the  clause  in  the 
Constitution  expressly  investing  Congress 
with  authority  'Ho  regulate  commerce  .  .  . 
with  the  Indian  tribes,"  and,  second,  the  de- 
pendent relation  of  such  tribes  to  the 
United  States.  Of  the  first  it  waa  said  in 
United  States  ▼.  HoUiday,  3  Wall.  407,  417- 
419,  18  L.  ed.  182,  185,  186:  "Commerce 
with  the  Indian  tribes  means  commerce 
with  the  individuals  composing  those  tribes. 
.  .  .  The  locality  of  the  traffic  can  have 
nothing  to  do  with  the  power.  The  right 
to  exercise  it  in  reference  to  any  Indian 
tribe,  or  any  person  who  is  a  member  of 
such  tribe,  is  absolute,  without  reference  to 
the  locality  of  the  traffic,  or  the  locality 
of  the  tribe,  or  of  a  member  of  the  tribe 
with  whom  it  is  carried  on.  .  .  .  This 
power  residing  in  Congress,  that  body  is 
necessarily  supreme  in  its  exercise."  And 
of  the  second  it  was  said  in  United  States 
T.  Kagama,  118  U.  8.  375,  383,  30  L.  ed. 
228,  231,  6  Sup.  Ct.  Rep.  1109:  "These 
Indian  tribes  are  the  wards  of  the  nation. 
They  are  communities  dependent  on  the 
United  States.  .  .  .  From  their  very 
weakness  and  helplessness,  so  largely  due 
to  the  course  of  dealing  of  the  Federal 
government  with  them  and  the  treaties  in 
which  it  has  been  promised,  there  arises 
the  duty  of  protection,  and,  with  it,  the 
power."  [598]  What  was  said  in  these 
cases  has  been  repeated  and  applied  in  many 
others.i 

Of  course,  when  the  Indians  are  prepared 
to  exercise  the  privileges  and  bear  the  bur- 
dens of  one  8u%  juris,  the  tribal  relation  may 
be  dissolved  and  the  national  guardianship 
brought  to  an  end;  but  it  rests  with  Con- 
gress to  determine  when  and  how  this  shall 
be  done,  and  whether  the  emancipation 
shall  at  first  be  complete  or  only  partial. 
CitUeenship  is  not  incompatible  with  tribal  i 


existence  or  continued  guardianship,  and 
BO  may  be  conferred  without  completely 
emancipating  the  Indians,  or  placing  them 
beyond  the  reach  of  congressional  regu- 
lations adopted  for  their  protection.'  Thus, 
in  United  States  v.  HoUiday,  a  prosecution 
for  selling  spiritous  liquor  to  a  tribal  In- 
dian in  Michigan  when  not  on  a  reserva- 
tion, the  contention  that  he  had  become  a 
citizen  was  dismissed  as  "immaterial;"  in 
Hallowell  v.  United  States,  a  prosecution 
for  talcing  whisky  upon  an  allotment  held 
by  a  tribal  Indian  in  Nebraska,  the  fact 
that  he  had  been  made  a  citizen  was  held 
not  to  take  the  case  out  of  the  congres- 
sional power  or  regulation;  and  in  United 
States  V.  Sandoval,  a  prosecution  for  in- 
troducing intoxicating  liquors  into  an  In- 
dian pueblo  in  New  Mexico,  it  was  held  that 
whether  tlie  Indians  [599]  of  the  pueblo 
were  citizens  need  not  be  considered,  be- 
cause that  would  not  take  from  Congress 
the  power  to  prohibit  the  introduction  of 
such  liquors  among  them. 

The  ultimate  question,  then,  is  whether 
§  6  of  the  act  of  1887 — ^the  section  as  origi- 
nally enacted — ^was  intended  to  dissolve  the 
tribal  relation  and  terminate  the  national 
guardianship  upon  the  making  of  the  allot- 
ments and  the  issue  of  the  trust  patents, 
without  waiting  for  the  expiration  of  the 
trust  period.  According  to  a  familiar  rule, 
legislation  affecting  the  Indians  is  to  be 
construed  in  their  interest,  and  a  purpose 
to  make  a  radical  departure  is  not  lightly 
to  be  inferred.  Upon  examining  the  whole 
act,  as  must  be  done,  it  seems  certain  that 
the  dissolution  of  the  tribal  relation  was  in 
contemplation;  but  that  this  was  not  to 
occur  when  the  allotments  were  completed 
and  the  trust  patents  issued  is  made  very 
plain.  To  illustrate:  Section  5  expressly 
authorizes  negotiations  with  the  tribe,  ei- 
ther before  or  after  the  allotments  are  com- 
pleted, for  the  purchase  of  so  much  of  the 
surplus   lands   "as  such   tribe   shall,  from 


1  United  States  v.  Forty-three  Gallons  of 
Whiskey  (United  States  v.  Larivisre)  93 
U.  S.  188,  23  L.  ed.  846;  Dick  ▼.  United 
States,  208  U.  S.  340,  52  L.  ed.  520,  28 
Sup.  Ct.  Rep.  300;  United  States  v.  Sut- 
ton, 215  U.  S.  291,  54  L.  ed.  200,  30  Sup. 
Ct.  Rep.  116;  Hallowell  v.  United  States, 
221  U.  S.  317,  65  L.  ed.  750.  31  Sup.  Ct. 
Rep.  587;  Ex  parte  Webb,  225  U.  S.  C63, 
56  L.  ed.  1248,  32  Sup.  Ct.  Rep.  769 ;  United 
States  V.  Wright,  229  U.  S.  226,  57  L.  ed. 
1160,  33  Sup.  Ct.  Rep.  630;  United  States 
V.  Sandoval,  231  U.  8.  28,  58  h.  ed.  107, 
34  Sup.  Ct.  Rep.  1;  United  States  v.  Peli- 
can, 232  U.  S.  442,  58  L.  ed.  676,  34  Sup. 
Ct.  Rep.  396;  Perrin  v.  United  States,  232 
U.  8.  478,  58  L.  ed.  691,  34  Sup.  Ct.  Rep. 
387;  Johnson  v.  Gearlds,  234  U.  S.  422,  58 
L.  ed.  1383,  34  Sup.  Ct.  Rep.  794;  Joplin 
Mercantile  Co.  v.  United  States,  236  U.  S.i 
40  li.  ed. 


531,  545,  59  L.  ed.  705,  711,  35  Sup.  Ct. 
Rep.  291. 

«  United  States  v.  HoUiday,  3  Wall.  407, 
18  L.  ed.  182;  Cherokee  Nation  v.  Hitchcock, 

187  U.  S.  294,  308,  47  L.  ed.  183,  188,  23 
Sup.  Ct.  Rep.'  115;  United  States  v.  Rickert, 

188  U.  S.  432,  445,  57  L.  ed.  532,  539,  23 
Sup.  Ct.  Rep.  478;  United  States  ▼.  Celes- 
tine,  215  U.  S.  278.  54  L.  ed.  195,  30  Sup. 
Ct.  Rep.  93;  Marchie  Tiger  v.  Western  In- 
vest. Co.  221  U  S.  286,  311-316,  55  L.  ed. 
738,  747-749,  31  Sup.  Ct.  Rep.  578;  HaUo- 
wcll  V.  United  States,  221  U.  S.  317,  324, 
65  L.  ed.  760,  753,  31  Sup.  Ct.  Rep.  587; 
United  States  v.  Sandoval,  231  U.  S.  28,  48, 
58  L.  ed.  107,  114,  34  Sup.  Ct.  Rep.  1;  Eells 
V.  Ross,  12  C.  C.  A.  205,  29  U.  8.  App.  59, 
64  Fed.  417;  Farrell  v.  United  States,  49 
C.  C.  A.  183,  110  Fed.  042;  Mulligan  v. 
United  States,  56  C.  C.  A.  50,  120  Fed.  98. 

1195 


MM02 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  ToMy 


time  to  tiflie,  eoiiMnt  to  sell;  "  directs  that 
the  pnrehmse  mmuj  be  lidd  in  the  Treas- 
VLTj  "for  the  sole  use  of  the  tribe;"  and 
requires  that  the  same,  with  the  interest 
thereon,  ''shall  be  at  sll  times  sobject  to 
appropriation  by  Congress  for  the  education 
and  dyilization  of  such  tribe  ...  or 
the  members  thereof.**  This  provision  for 
holding  and  using  these  proceeds,  like  that 
withholding  the  title  to  the  allotted  lands 
for  twenty-five  years,  and  rendering  them 
inalienable  during  that  period,  makes 
strongly  against  the  daim  that  the  na- 
tional guardianship  was  to  be  presently 
terminated.  The  two  together  show  that 
the  government  was  retaining  control  of 
the  property  of  these  Indians,  and  the  one 
relating  to  the  use  by  Congress  of  their 
moneys  in  their  "education  and  civiliza- 
tion" implies  the  retention  of  a  control 
reaching  far  beyond  their  property. 

As  pointing  to  a  different  intention,  re- 
liance is  had  [600]  upon  the  provision  that 
when  the  allotments  are  completed  and  the 
trust  patents  issued  the  allottees  "shall 
have  the  benefit  of  and  be  subject  to  the 
laws,  both  civil  and  criminal,  of  the  state" 
of  their  residence.  But  what  laws  was  this 
provisicm  intended  to  embrace  T  Was  it  all 
the  laws  of  the  state,  or  only  such  as  could 
be  applied  to  tribal  Indians  consistently 
with  the  Constitution  and  the  legislation 
of  Congress  T  The  words,  although  general, 
must  be  read  in  the  light  of  the  act  as  a 
whole,  and  with  due  regard  to  the  situa- 
tion in  which  they  were  to  be  applied. 
That  they  were  to  be  taken  with  some  im- 
plied limitations,  and  not  literally,  is  ob- 
vious. The  act  made  each  allottee  incapable 
during  the  trust  period  of  making  any 
lease  or  conveyance  of  the  allotted  land, 
or  any  contract  touching  the  same,  and, 
of  course,  there  was  no  intention  that  this 
should  be  affected  by  the  laws  of  the  state. 
The  act  also  disclosed  in  an  unmistakable 
way  that  the  education  and  civilization  of 
the  allottees  and  their  children  were  to  be 
under  the  direction  of  Congress,  and  plain- 
ly the  laws  of  the  state  were  not  to  have 
any  bearing  upon  the  execution  of  any  di- 
rection Congress  might  give  in  this  matter. 
The  Constitution  invested  Congress  with 
power  to  regulate  traffic  in  intoxicating 
liquors  with  the  Indian  tribes,  meaning 
with  the  individuals  composing  them.  That 
was  a  continuing  power  of  which  Congress 
could  not  devest  itself.  It  could  be  exerted 
at  any  time  and  in  various  forms  during 
the  continuance  of  the  tribal  relation,  and 
clearly  there  was  no  purpose  to  lay  any 
obstacle  in  the  way  of  enforcing  the  exist- 
ing congressional  regulations  upon  this  sub- 
ject, or  of  adopting  and  enforcing  new  ones, 
if  deemed  advisable. 

The  act  of  1887  came  under  consideration 
1196 


in  United  States  v.  Rickert,  188  U.  S.  432, 
47  L.  ed.  532,  23  Sup.  Ct.  Rep.  478,  a  case 
involving  the  power  of  the  state  of  South 
Dakota  to  tax  allottees  under  that  act,  ac- 
cording to  the  laws  of  the  state,  upon  their 
allotments,  the  permanent  improvements 
thereon,  and  the  [601]  horses,  cattle,  and 
other  personal  property  issued  to  them  by 
the  United  States  and  used  on  their  allot- 
ments, and  this  court,  after  reviewing  the 
provisions  of  the  act,  and  saying:  ''These 
Indians  are  yet  wards  of  the  nation,  in  a 
condition  of  pupilage  or  dependency,  and 
I  have  not  been  discharged  from  that  condi- 
tion," held  that  the  state  was  without 
power  to  tax  the  lands  and  other  property^ 
because  the  same  were  being  held  and  used 
in  carrying  out  a  policy  of  the  govemmoit 
in  respect  of  its  dependent  wards,  and  that 
the  United  States  had  such  an  interest  in 
the  controversy  as  entitled  it  to  maintain 
a  bill  to  restrain  the  collection  of  the 
taxes. 

In  addition  to  the  fact  that  both  acts — 
the  general  one  of  1887  and  the  special  one 
of  1889— disclose  that  the  tribal  relation 
and  the  wardship  of  the  Indians  were  not 
to  be  disturbed  by  the  allotments  and  trust 
patents,  we  find  that  both  Congress  and  the 
administrative  officers  of  the  goverrment 
have  proceeded  upon  that  theory.  This  is 
shown  in  a  long  series  of  appropriation  and 
other  acts,  and  in  the  annual  reports  of  the 
Indian  Office. 

As,  therefore,  these  allottees  remain 
tribal  Indians  and  under  national  guardian- 
ship, the  power  of  Congress  to  regulate  or 
prohibit  the  sale  of  intoxicating  liquor  to 
them,  as  is  done  by  the  act  of  1807,  is  not 
debatable. 

We  recognize  that  a  different  construc- 
tion was  placed  upon  §  6  of  the  act  of  1887 
in  Re  Heff,  197  U.  S.  488,  49  L.  ed.  848, 
26  Sup.  Ct.  Rep.  506,  but,  after  re-examin- 
ing the  question  in  the  light  of  other  pro- 
visions in  the  act,  and  of  many  later  enact- 
ments, clearly  reflecting  what  was  intended 
by  Congress,  we  are  constrained  to  hold 
that  the  decision  in  that  case  is  not  well 
grounded,  and  it  is  accordingly  overruled. 

Judgment  reversed. 


[602]  UNITED  STATES,  Plff.  in  Err., 

V. 

DENNIS  QUIVER. 

(See  S.  C.  Reporter's  ed.  602-606.) 

Federal  courts  —  Jurisdiction  —  crimo' 
on  Indian  reservation  —  adultery. 

Adultery   committed   by   an    Indian 

Note. — On  jurisdiction  to  punish  crimea 
committed  by  or  against  Indians — see  notes 
to  State  V.  Campbell,  21  L.R.A.  169,  and 
Kitto  ▼.  State,  L.R.A.1915F,  587. 

241  U.  S. 


1016. 


UNITBD  STATE8  t.  QUIVEB. 


603 


with  another  Indian  on  an  Indian  reserva- 
tion cannot  be  regarded  as  punishable  un- 
der U.  S.  Penal  Code,  §  316  (Comp.  Stat. 
1013,  §  10,489),  in  view  of  the  failure  of 
that  section  to  refer  in  terms  to  Indians, 
and  of  the  express  enumeration  in  §§  328, 
320  (Comp.  Stat.  1913,  §§  10,502,  10,503), 
of  certain  other  crimes  as  offenses  against 
the  United  States  when  committed  on  In- 
dian reservations;  nor  is  a  different  con- 
clusion demanded  on  the  theory  that  adul- 
tery is  not  an  offense  "by  one  Indian 
against  the  person  or  property  of  another 
Indian,"  within  the  meaning  of  the  provi- 
sions of  U.  S.  Rev.  Stat.  §  2146,  Comp. 
Stat.  1913,  §  4149,  excepting  such  offenses 
from  the  operation  of  §  2145  (Comp.  Stat. 
1913,  §  4148),  by  which  the  general  crimi- 
nal laws  of  the  United  States  were  ex- 
tended to  the  Indian  country. 
[For  other  cases,  see  Courts,  1454-1471,  in 
Digest  Sup.   Ct.  1908.] 

[No.  682.] 

Submitted  Fcbruarv  28, 1916.    Decided  June 

12,  1916. 

IN  ERROR  to  the  District  Court  of  the 
United  States  for  the  District  of  South 
Dakota  to  review  a  judgment  sustaining  a 
demurrer  to  and  dismissing  an  indictment 
for  adultery  committed  by  one  Indian  with 
another  Indian  on  an  Indian  reservation. 
Affirmed,  i 

The  facts  are  stated  in  the  opinion. 

Assistant  Attorney  General  Warren  sub- 
mitted the  cause  for  plaintiff  in  error: 

Adultery  is  not  an  offense  against  the 
person  or  property  of  any  person. 

Bassett  v.  United  States,  137  U.  S.  496, 
34  L.  ed.  702,  11  Sup.  Ct.  Rep.  165;  Re 
Mayfield,  141  U.  S.  107,  35  L.  ed.  635,  11 
Sup.  Ct.  Rep.  939. 

The  enactment  of  the  statutes  incorpo- 
rated in  §§  328  and  329  of  the  Criminal 
Code  (35  Stat,  at  Ia.1151,  chap.  321,  Comp. 
Laws  1913,  S§  10,502,  10,503),  neither  ex- 
pressly nor  impliedly  repealed  or  super- 
seded the  provisions  of  U.  S.  Rev.  Stat.  % 
2145,  Comp.  SUt.  1913,  §  4148. 

Donnelly  v.  United  States,  228  U.  8.  243, 
57  L.  ed.  820,  33  Sup.  Ct.  Rep.  449,  Ann. 
Cas.  1913E,  710. 

The  enabling  act  of  the  state  of  South 
Dakota  in  nowise  supersedes  U.  S.  Rev. 
Stat.  §  2145,  so  far  as  an  offense  commit- 
ted by  Indians  upon  Indian  reservations 
within  that  state  is  involved. 

United  States  v.  Pelican,  282  U.  8.  442, 
445,  58  L.  ed.  676,  677,  34  Sup.  Ct.  Rep. 
896. 

1  Leave  mnted  to  present  a  petition  for 
rehearing  herein  within  sixty  days  if  coun- 
sel are  so  advised,  on  motion  of  Solicitor 
General  Davis  for  the  United  States. 

June  12,  1916. 
60  Ii.  ed. 


And  S  329  of  the  Penal  Code  was  enacted 
in  order  to  broaden  the  scope  of  jurisdic- 
ti<Hi  of  the  United  States  district  court  for 
the  district  of  South  Dakota,  and  not  to 
repeal  the  jurisdiction  it  already  had  under 
U.  S.  Rev.  Stat.  §  2145. 

Hollister  ▼.  United  States,  76  C.  C.  A. 
337,  145  Fed.  777;  United  States  v.  Mc- 
Bratney,  104  U.  S.  621,  26  K  ed.  869; 
Draper  v.  United  SUtes,  164  U.  8.  240,  41 
L.  ed.  419,  17  Sup.  Ct.  Rep.  107;  Donnelly 
V.  United  States,  228  U.  S.  243,  57  L.  ed. 
820,  33  Sup.  Ct.  Rep.  449,  Ann.  Cas.  1913E, 
710;  United  States  v.  Ewing,  47  Fed.  809. 

Messrs.  George  A.  Jeffers  and  Albert 
G.  Granger  submitted  the  cause  for  de- 
fendant in  error: 

It  has  been  the  policy  of  Congress,  since 
the  organization  of  the  government,  to  give 
to  the  courts  of  the  United  States  only  such 
limited  jurisdiction  as  has  been  conferred 
upon  them,  from  time  to  time,  by  the  acts 
of  Congress. 

United  States  v.  Hudson,  7  Cranch,  32, 
3  L.  ed.  260;  Re  Wilson,  140  U.  S.  576, 
578,  35  L.  ed.  513,  514,  11  Sup.  Ct.  Rep. 
870;  United  States  v.  Kagama,  118  U.  S. 
375,  30  L.  ed.  228,  6  Sup.  Ct.  Rep.  1109. 

Adultery  between  Indians  on  an  Indian 
reservation  in  the  state  of  South  Dakota  is 
not  such  a  crime  as  was  contemplated  by 
the  acts  of  Congress. 

Ex  parte  Crow  Dog  (Ex  parte  Kang-Gi- 
Shun-Ca)  109  U.  S.  556,  27  L.  ed.  1030,  3 
Sup.  Ct.  Rep.  306;  Donnelly  v.  United 
States,  228  U.  S.  243,  57  L.  ed.  820,  33  Sup. 
Ct.  Rep.  449,  Ann.  Cas.  1913E,  710;  Re 
Gon-shay-ee,  130  U.  S.  343,  351,  32  L.  ed 
973,  976,  9  Sup.  Ct.  Rep.  542;  State  v. 
Mimrod,  30  S.  D.  239,  138  N.  W.  377 ;  State 
V.  Campbell,  53  Minn.  354,  21  L.R.A.  169, 
55  N.  W.  553;  State  v.  George, '39  Or.  127, 
65  Pac.  604;  Re  Blackbird,  109  Fed.  139; 
People  ex  rel.  Cusick  ▼.  Daly,  212  N.  Y. 
183,  105  N.  E.  1048,  Ann.  Caa.  1915D,  367 ; 
Ex  parte  Hart,  157  Fed.  130;  Re  Mayfield, 
141  U.  S.  107,  35  L.  ed.  635,  11  Sup.  Ct. 
Rep.  939;  United  States  v.  King,  81  Fed. 
625. 

If  there  is  any  doubt  as  to  whether  or  not 
adultery  between  Indians  on  an  Indian 
reservation  in  the  state  of  South  Dakota 
constitutes  a  crime,  that  doubt  should  be 
resolved  in  favor  of  the  defendant. 

United  States  v.  Brewer,  139  U.  8.  278, 
286,  35  L.  ed.  190,  193,  11  Sup.  Ct.  Rep. 
538;  Ex  parte  Webb,  226  U.  8.  663,  56  K 
ed.  1248,  32  Sup.  Ct.  Rep.  769;  State  v. 
George,  39  Or.  127,  65  Pao.  604. 

Mr.  Justice  Tan  DeTMiter  delivered  the 
opinion  of  the  court: 

This  is  a  prosecution  for  adultery  com- 
mitted on  one  of  the  Sioux  Indian  Be* 


603^606 


SUPREME  CX)URT  OF  THE  UNITED  STATEa 


Oct.  TlcBX, 


tions  in  the  state  of  South  Dakota.  Both 
participants  in  the  act  were  Indians  be- 
longing to  that  reservation.  The  statute 
upon  which  the  prosecution  is  founded  was 
originally  adopted  as  part  of  the  act  of 
March  3,  1887  (chap.  397,  24  Stat,  at  L. 
636),  and  is  now  f  316  of  the  Penal  Code 
[35  Stat,  at  L,  1149,  chap.  321,  Comp. 
Stat.  1913,  §  10,489].  The  section  makes 
no  mention  of  Indians,  and  the  question  for 
decision  is  whether  it  embraces  adultery 
committed  by  one  Indian  with  another 
Indian,  on  an  Indian  reservation.  The  dis- 
trict court  answered  the  question  in  the 
negative. 

At  an  early  period  it  became  the  settled 
policy  of  Congress  [604]  to  permit  the  per- 
sonal and  domestic  relations  of  the  Indians 
with  each  other  to  be  regulated,  and  offenses 
by  one  Indian  against  the  person  or  prop- 
erty of  another  Indian  to  be  dealt  with,  ac- 
cording to  their  tribal  customs  and  laws. 
Thus  the  Indian  intercourse  acts  of  1796 
(chap.  30,  1  Stat,  at  L.  469),  and  1802 
(chap.  13,  2  Stat,  at  L.  139),  provided  for 
the  punishment  of  various  offenses  by  white 
persons  against  Indians,  and  by  Indians 
against  white  persons,  but  left  tmtouched 
those  by  Indians  against  each  other;  and 
the  act  of  1834  (chap.  161,  4  Stat,  at  L. 
729,  Comp.  Stat.  1913,  §  4148),  while  pro- 
viding that  "so  much  of  the  laws  of  the 
United  States  as  provides  for  the  pimish- 
ment  of  crimes  committed  within  any  place 
within  the  sole  and  exclusive  jurisdiction  of 
the  United  States  shall  be  in  force  in  the 
Indian  coimtry,"  qualified  its  action  by  say- 
ing, "the  same  shall  not  extend  to  crimes 
committed  by  one  Indian  against  the  person 
or  property  of  another  Indian."  That  pro- 
vision with  its  qualification  was  later 
carried  into  the  Revised  Statutes  as  SS 
2145  and  2146,  Comp.  Stat.  1913,  SS  4148, 
4149.  This  was  the  situation  when  this 
court,  in  Ex  parte  Crow  Dog  (Ex  parte 
Kang-6i-Shun-Ca)  109  U.  S.  556,  27  L.  ed. 
1030,  3  Sup.  Ct.  Rep.  396,  held  that  the 
murder  of  an  Indian  by  another  Indian, 
<m  an  Indian  reservation,  was  not  punish- 
able under  the  laws  of  tiio  United  States, 
and  could  be  dealt  with  only  according  to 
the  laws  of  the  tribe.  The  first  change 
came  when,  by  the  act  of  March  3,  1885 
(chap.  341,  8  9>  23  Stat,  at  L.  385,  Comp. 
Stat.  1€18,  §  10,502),  now  8  328  of  the 
Penal  Code,  Congress  provided  for  the  pun- 
ishment of  murder,  manslaughter,  rape, 
assault  with  intent  to  kill,  assault  with  a 
uangerous  weapon,  arson,  burglary,  and 
larceny,  when  committed  by  one  Indian 
against  the  person  or  property  of  another 
Indian.  In  other  respects  the  policy  re- 
mained as  before.    After  South  Dakota  be- 


came  a    stateb    Congress,   acting   upon    a 
1198 


partial  cession  of  jurisdietion  by  that  state 
(chap.  106,  Laws  1901),  provided  by  the 
act  of  February  2,  1903,  (chap.  351,  32 
Stat,  at  L.  793,  Comp.  Stat  1913,  f  10,603), 
now  8  329  of  the  Penal  Code,  for  the  pun- 
ishment of  the  particular  offenses  uanied 
in  the  act  of  1885  when  [605]  committed 
on  the  Indian  resorations  in  that  state, 
even  thou^  committed  by  others  than  In- 
dians; but  this  is  without  bearing  here,  for 
it  left  the  situation  in  respect  of  offenses  by 
one  Indian  agamst  the  person  or  property 
of  another  Indian  as  it  was  after  the  act 
of  1885. 

We  have  now  referred  to  all  the  statutes. 
There  is  none  dealing  with  bigamy,  polyg- 
amy, incest,  adultery,  or  fornication, 
which  in  terms  refers  to  IndianL,  these 
matters  always  having  been  left  to  the 
tribal  customs  and  laws,  and  to  such  pre- 
ventive and  corrective  measures  as  reason- 
ably could  be  taken  by  the  administrative 
officers. 

But  counsel  for  the  government  ir.vite 
attention  to  the  letter  of  the  statute,  and 
urge  that  adultery  is  not  /*n  offense  **by 
one  Indian  against  the  person  or  property 
of  another  Indian,"  and  therefore  is  not 
within  the  exception  in  S  2146  of  the  Re- 
vised Statutes  (Comp.  Stat.  1913,  S  4149). 
It  is  true  that  adultery  is  a  voluntary  act 
on  the  part  of  both  participants,  and, 
strictly  speaking,  not  an  offense  against  the 
person  of  either.  But  are  the  words  of  the 
exception  to  be  taken  so  strictly  T  Murder 
and  manslaughter  are  concededly  offenses 
against  the  person,  and  much  more  serious 
than  is  adultery.  Was  it  intended  that  a 
prosecution  should  lie  for  adultery,  but 
not  for  murder  or  manslaughter  T  Rape 
also  is  concededly  an  offense  against  the 
person,  and  is  generally  regarded  as  among 
the  most  heinous,  so  much  so  that  death 
is  often  prescribed  as  the  punishment.  Was 
it  intended  that  a  prosecution  should  lie 
for  adultery,  where  the  woman's  participa- 
tion is  voluntary,  but  not  for  rape,  where 
she  is  subjected  to  the  same  act  forcibly 
and  against  her  willT  Is  it  not  obvious 
that  the  words  of  the  exception  are  used  in 
a  sense  which  is  more  consonant  with  rea- 
son T  And  are  they  not  intended  to  be  in 
accord  with  the  policy  reflected  by  the 
legislation  of  Congress  and  its  administra- 
tion for  many  years,  that  the  relations  of 
the  Indians  among  themselves — ^the  conduct 
of  one  toward  another — is  to  be  controlled 
by  the  customs  and  laws  of  [606]  the  tribe, 
save  when  Congress  expressly  or  clearly 
directs  otherwise  T  In  our  opinion  this  is 
the  true  view.  The  other  would  subject 
them  not  only  to  the  statute  relating  to 
adultery,  but  also  to  many  others  whidi  it 
seems  most  reasonable  to  believe  were  not 

14 1  U.  8. 


IMS.  ABBOTT  t.  BROWN.  tOft 

tnteoded  by  Congreai  to  b«  applied  to  than.  eb«rc^g  him  with  iubomatlon  of  perjuiy 

One   of    these    prohiblta   nuiTia^   between  hj  the  persona  who  made  affldavite  in  sup- 

persons   related   within,  and   not  tnclndins  PO"^  "'  the  motion  for  the  new  trial,  where 

the  fourth  degreo  of  consanpiinlty,  com-  "ch  damnrrer  and  "notion  to  qaash  wera 

pnted  aeoording  to  U.e  rules  of  toe  eivil^w,  ^r1l^rwf^^n:'  I'^itj  ^X'S 

ud  affixes  a  punishment  of  not  nwia  than  ^         ^i^   ^^ji^^  „l,i^l,_  though   true   in 

fifteen  years'  impriaonment  for  each  vioU-  fact,  the  court  held  in  effect  not  to  be  well 

tor.     To   justify   a  court   in   holding   that  founded  in   law,  proceeding  to  auatain   the 

thsM   lawB.  are   to   be   applied   to   Indiana,  demurrer  and  quash  the  indictment  on  an- 

there  ehould   be   some  clear   proviiion   to  other  groond,  and  one  not  taken  by  him, 

that  effect.     CerUinly  that  U  not  so  now.  ^■.  '*"*  »  previous  adjournment  order  had 

Beaidea,  the  enumeration   in   the   arte  of  ?£?^^„^  *^*  Jfff?  ^  '  Xl"'?"-,, 

188S  and  1903,  now  li  32S  and  329  of  the  '%m^lup.'ct!  iwl?)  "^ 
Penal  Code,  of  certain  offenses  aa  applicable 

to  Indiana  in  the  reservations,  carries  with  l^°-  ^^^-l 

it  aome  implication  of  a  purpose  to  exclude 

Judgment  afllrmed. 


Estopticl,     III. 


A-, 


I  PPEALfrom  the  District  Court  of  the 

.  United  States  for  the  Southern  Distrii^ 

JAMES  J.  ABBOTT.  Appt..  °'  Florida  to  review  an  order  dUcharging  a 

^  '     '^'^  '  writ  of  habeas  corpus.     Reversed  and  cause 

JAMES  C.  SHOWN,  United  SUtea  Marshal  "'r^.ttl";™".'^^',,  TJ^.'^ZIlL 
In  and  for  the  Southern  District  of  The  facts  are  stated  in  the  opinion. 
Florida.  Mr.    Charlea   B.    Parkblll    argued    the 

cause  and  Bled  a  brief  for  appellant: 
(See  S.  0.  Reporters  ed.  606-613.)  Every  term  continues  until  the  call  of  the 

next  succeeding  term,  unless  previously  ad- 
journed aine  die;  aiid  until  that  time  the 


-  delay  In  fll- 


1.  A  breach  of  ■  court  rule  requiring  judgment  may  be  modified  or  stricken  out. 
notions  for  new  trials  to  be  made  within  Noonan  v.  Bradley,  12  Wall.  12B,  20  L. 
four  days  after  the  entry  of  tiie  verdict  ed.  291;  Rex  v.  Juaticea  of  Oxfordshire,  1 
would,  at  the  utmost,  be  a  mere  error  of  Maule  A  S.  442;  Ex  parte  Friday,  43  Fed. 
procedure,  not  affecting  the  jurisdiction.  gig.  8  Am.  Grim.  Ren.  361 ;  Ex  parte  Lanec. 

(For   other    cnspi,    aee   'ttlal.    V.    a.    In    Digest  ,-  ro.ii    loo    oi  T     Lq    aec 

Sup.  Lt.  1B08.1  IB  Wall.  1U2,  Kl  i..  ed.  aoo. 

Federal  courts  —  term  —  keeping  aUve  Th«   appellant's   motion   for  a   new   trial 

during  absents  of  Judge.  was  acted  upon  and  granted  in  term  time, 

2.  A  term  of  the  Federal  district  court  at  a  lawful  t«rm  of  the  United  States  dis- 
for  the  southern  district  of  Florida,  which,  trict  eourt  for  the  southern  district  of 
under  the  Judicial  Code,  §§  8-11,  76,  must  Florida 

«?;K'^H°Pr"/i^'"*°'i'*''°"""?""'  Florida  v.  Charlotte  Harbor  Phosphate 

equity,  and  may  hold  special  terms  at  any  rv,   it  r-    n    i    j7o    in  tt    o    *^„    ma    Tit 

time   for   the   transaction   of   any   kind   of  ^-  1?  C-  C.  A.  472,  30  U.  8.  App.  535,  70 

bosincEB,  was  not  brought  to  an  end,  so  far  ^™-  "^6;   East  Tennessee  Iron  k  Coal  Co. 

as  criminal  business  was  concerned,  so  as  to  '■  Wiggin,  IS  C.  C.  A.  510,  37  U.  S.  App 

prevent  the  subsequent  granting  of  a  new  139,  68  Fed.  446;  United  States  v.  Finuell,. 

trial,    by    an    adjournment    "in    accordance  186  U.  8.  236,  242,  46  L.  ed.   890,  8B2,  22 

with"   a   apecifled   court   rule   which,   after  Sup.   ct   Rep.   633;    United   States  v.  Pit- 

referrmg  to  the  legal  requirement  that  the  „„   147  „_  g_  gflg  gy„  37  L.  ed.  324,  326,- 

court  be  always  open  for  the  transaction  of  ,_  o        n.   n        .i,^     rr               -rt      ■      1  .a 

certain  kinds  of  bSlineaa,  ordera  that,  pend-  J?  ^"P, ?*■  ?IP-  *f  =  ^T,"  I"  ^°"'^„"^ 

ing  the  temporary  ahsen^  of  the  judg^  the  "■  S-  B46,  87  1^  ed.  438,  13  Sup.  a.  Rep. 

clerk  be  present  dally  for  the  transaction  of  B82;   Harlan  v.  McGourm.  218   U.  S.  442, 

buainesB  under  the  ordera  of  the  judge,  and  54  L.  ed.  1101,  81  Sup.  Ct.  Rep.  44,  21  Ann. 

that,  upon  such  days  as  there  Is  buaineaa  Cas,  849;   United  States  v.  McCarthy,  18 

to  be  traneacted,  the  court  be  open  and  a  Fed.  87;  United  States  v.  Radford,  131  Fed. 

record  of  the  same  be  entered  upon  the  ^g.  Harriaon  v.  German- American  F.  Ins. 

ri-or"7S;er   cases,   see  Courts.   807-314;   New  °^  ^J^'''^^-  P""J"  '•  Hathaway,  40 

Trial.  VI.  a.  in  Digest  Bop.  C[.  IBOS.l       *  Me.  132;   Bronaon  v.   Bchulten.   104  U.   B. 

Estoppel  —  aasiimlng  Inconsistent  posi-  410,  26  L.  ed.  797;  Duff  v,  Fisher,  16  Cal. 

tlona  In  Judicial  proceeding!.  _— 

3.  A  person  acquitted  of  crime  on  a  new  1  Leave  granted  to  present  petition  for 
trial  granted  after  conviction  ia  not  es-  rehearing  herein  within  sixty  d»e  If  coun- 
topped  to  assert  the  jurisdiction  of  the  sel  are  ao  advised,  oa  motion  of  Mr.  Solicitor 
court  to  grant  such  new  trial  by  demurring  Qeneral  Davis  tor  the  United  States. 

to,  and  moving  to  qnaah.  an   indictment  June  12,  1910- 

«0  I/,  ed.  lltt 


607,  608 


SUPREME  COURT  OF  THE  UNITED  STATEa 


Oct.  Tebm, 


375;  State  ex  rel.  Brainerd  ▼.  AdaniA,  84 
Mo.  315;  De  Vail  v.  De  Vail,  60  Or.  493,  40 
L.R.A.(N.S.)  291,  118  Pac.  843,  120  Pac. 
13,  Ann.  Cas.  1914A,  412;  Ex  parte  Lange, 
18  Wall.  192,  21  L.  ed.  884;  Ex  parte  Fri- 
day, 43  Fed.  916,  8  Am.  Grim.  Rep.  351. 

Even  though  the  motion  was  made  more 
than  four  days  after  the  rendition  of  the 
verdict,  and  was  required  by  the  rule  to  be 
made  within  four  days,  yet  the  court  may 
treat  the  motion  for  a  new  trial,  filed  out 
of  time,  as  a  suggestion  invoking  the  exer- 
cise of  judicial  discretion. 

Scott  V.  Joffee,  125  Mo.  673,  102  S.  W. 
1039;  Emma  Silver  Min.  Co.  v.  Park,  14 
Blatchf.  411,  Fed.  Cas.  No.  4,467;  Rex  v. 
Teal,  11  East,  307,  10  Revised  Rep.  516; 
Reg.  V.  Newman,  3  Car.  &  K.  252,  Dears.  C. 
C.  88,  1  El.  &  Bl.  268,  17  Jur.  617,  22  L. 
J.  Q.  B.  N.  S.  156;  Reg.  v.  Hetherington, 
5  Jur.  529. 

An  estoppel  may  not  be  raised  in  crimi- 
nal cases.  It  has  no  application  to  crimi- 
nal causes.  The  accused  may  show  the 
actual  state  of  facts,  notwithstanding  what 
he  may  have  said  or  done. 

Hughes,  Crim.  Law  &  Proc.  §§  537,  3185; 
Gillett,  Indirect  &  Collateral  Ev.  §  119; 
State  V.  Hutchinson,  60  Iowa,  478,  15  N.  W. 
298,  4  Am.  Crim.  Rep.  162;  Jackson  v.  Peo- 
ple, 126  111.  144,  18  N.  E.  286;  Moore  v. 
State,  53  Neb.  831,  74  N.  W.  319;  Bailey  v. 
State,  57  Neb.  710,  73  Am.  St.  Rep.  540,  78 
N.  W.  284,  11  Am.  Crim.  Rep.  660. 

Assistant  Attorney  Ceneral  Wallace  ar- 
gued the  cause  and  filed  a  brief  for  appel- 
lee: 

The  district  court  was  without  power  to 
entertain  the  second  motion  for  a  new  trial. 
Its  order,  therefore,  and  the  second  retrial 
and  apparent  acquittal,  were  each  and  all 
mere  nullities. 

United  States  v.  Mayer,  235  U.  S.  65,  67, 
59  L.  ed.  129,  135,  35  Sup.  Ct.  Rep.  16. 

The  appellant  is  estopped  to  assert  that 
there  was  not  a  final  adjournment  of  the 
court,  and  that  the  motion  for  a  new  trial 
was  not  made  after  such  final  adjournment. 

2  Co.  Inst.  p.  39;  People  v.  Royce,  106 
Cal.  187,  37  Pac.  630,  39  Pac.  524;  State 
V.  Spaulding,  24  Kan.  1;  State  v.  O'Brien, 
94  Tenn.  79,  26  L.R.A.  252,  28  S.  W.  311; 
State  ex  rel.  Clark  v.  District  Ct.  31  Mont. 
428,  78  Pac.  769,  3  Ann.  Cas.  841 ;  Bigelow, 
Estoppel,  6th  ed.  pp.  783,  785;  Davis  v. 
Wakelee,  156  U.  S.  680,  691,  39  L.  ed.  578, 
586,  15  Sup.  Ct.  Rep.  555;  Abbot  v.  Wilbur, 
22  La.  Ann.  368;  Davis  v.  Cornwall,  15  C. 
C.  A.  559,  26  U.  S.  App.  777,  35  U.  S.  App. 
315,  68  Fed.  522;  Michels  v.  Olmstead,  157 
U.  S.  198,  39  L.  ed.  671,  15  Sup.  Ct.  Rep. 
580;  Hughes  v.  Dundee  Mortg.  &,  Trust 
Invest.  Co.  28  Fed.  46;  The  New  York,  51 
1200 


C.  C.  A.  482,  113  Fed.  810;  Long  v.  Lock- 
man,  135  Fed.  197 ;  Nixon  v.  Fidelity  &  D. 
Co.  80  a  C.  A.  336,  150  Fed.  576;  Smith 
V.  Warden,  19  Pa.  429;  Taylor  v.  Crook,  136 
Ala.  378,  96  Am.  St  Rep.  26,  34  So.  905; 
Boatmen's  Banl^  v.  Fritzlen,  75  Kan.  490,  22 
L.ILA.(N.S.)  1235,  89  Pac  915;  Test  v. 
Larsh,  76  Ind.  460;  Harbaugh  v.  Albertson, 
102  Ind.  75,  1  N.  £.  298;  Kile  v.  YeUow- 
head,  80  111.  211;  Denver  City  Irrig.  k 
Water  Co.  v.  Middaugh,  12  Colo.  436,  13 
Am.  St.  Rep.  234,  21  Pac.  565;  Arthur  v. 
Israel,  15  Colo.  153,  10  L.RJI.  693,  22  Am. 
St.  Rep.  381,  25  Pac.  81;  Ellis  v.  White,  61 
Iowa,  646,  17  N.  W.  28;  De  Metton  v.  De- 
Mello,  12  East,  234,  2  Campb.  420;  Daniels 
V.  Tearney,  102  U.  S.  415,  419,  421,  26  L 
/ed.  187-189. 

Mr.  Justice  Pitney  delivered  the  opinion 
of  the  court: 

This  is  an  appeal  from  a  final  order  dis- 
charging a  writ  of  habeas  corpus  and  re- 
manding appellant  to  the  custody  of  the 
United  States  marshal.  The  facts  are  as  fol- 
lows :  Appellant  was  indicted  in  the  United 
States  district  court  for  the  southern  dis- 
trict of  Florida,  at  Tampa,  [608]  for  a  vio- 
lation of  a  section  of  the  Criminal  Code,  and 
in  the  month  of  March,  1912,  was  tried  and 
found  guilty.  On  the  12th  day  of  the  same 
month  he  was  sentenced  to  confinement  in 
the  penitentiary  at  Atlanta  for  the  term  of 
one  year  and  six  months.  On  the  same  day, 
and  after  passing  the  sentence,  the  court 
entered  the  following  order :  '"Ordered  that 
court  be  adjourned  in  accordance  with  gen- 
eral rule  No.  1,  and  all  orders  and  other 
matters  be  entered  as  of  the  term.  There- 
upon court  is  adjourned  as  ordered.''  After 
the  entry  of  this  order.  Judge  Locke,  the 
district  judge,  went  to  Jacksonville,  in  the 
same  district,  and  the  deputy  clerk  noted  on 
the  minutes  from  day  to  day  that  court  was 
open  in  accordance  with  general  rule  No.  1, 
after  which  he  entered  orders  made  from 
time  to  time  by  the  court  in  vacation.  On 
May  24,  1912,  appellant  filed  a  motion  for  a 
new  trial  upon  the  ground  of  newly  disco?- 
ered  evidence,  with  several  siffidavits  in  sup- 
port of  it.  On  June  26  Judge  Locke,  at 
Jacksonville,  granted  this  motion,  and  made 
a  proper  order,  pursuant  to  which  appellant 
was  brought  to  trial  on  February  11,  1913, 
when  the  jury  disagreed.  He  was  sigain 
tried  on  March  13,  1914,  and  the  jury  re- 
turned a  verdict  of  not  guilty.  Thereafter, 
add  in  February,  1915,  the  persons  who  had 
made  the  affidavits  in  support  of  the  motion 
for  a  new  trial  were  indicted  for  perjury, 
and  appellant  was  indicted  for  subornation 
of  perjury.  Appellant  demurred  to  this  in- 
dictment and  moved  to  quash  it  upon  the 
ground  that  Judge  Locke  had  no  jurisdie- 

S41  V.  8. 


1915. 


ABBOTT  V.  BROWN. 


808-611 


tion  to  grant  a  new  trial  because  the  mo- 
tion was  not  filed  within  four  days  after 
the  verdict.  The  demurrer  and  motion  to 
quash  were  heard  by  the  then  presiding 
judge,  who  sustained  the  demurrer  and 
quashed  the  indictment  upon  the  ground 
that  Judge  Locke  had  no  power  or  author- 
ity, after  the  making  of  the  adjournment 
order  of  March  12,  1912,  to  vacate  or  set 
aside  the  sentence  passed  upon  appellant  on 
that  date. 

[609]  Thereafter,  and  on  March  20,  1915, 
the  government  procured  a  commitment  to 
be  issued  upon  the  original  judgment  of  con- 
viction, and  it  is  under  this  writ  that  ap- 
pellant is  now  held  in  custody. 

Two  questions  arise:  (1)  Were  the  or- 
der for  a  new  trial,  and  the  trial  proceed- 
ings had  thereunder,  null  and  void?  (2) 
If  not,  should  they  nevertheless  be  so  re- 
garded as  against  appellant,  because  of 
what  he  did  in  obtaining  the  quashing  of 
the  indictment  for  subornation  of  perjury? 

Under  the  first  head,  counsel  for  appellee 
cites  a  rule  of  the  district  court,  reading 
thus:  ''Motions  for  new  trials  shall  be 
made  within  four  days  after  the  entry  of 
the  verdict,  during  which  time  no  judgment 
shall  be  entered,  except  by  leave  of  court," 
etc.  We  find  in  the  record  no  evidence  that 
there  was  such  a  rule;  but,  assuming  we 
may  take  judicial  notfce  of  its  existence, 
it  was  a  mere  regulation  of  practice,  and  a 
breach  of  it  would  be,  at  the  utmost,  a 
mere  error  of  procedure,  not  affecting  the 
jurisdiction.* 

The  principal  insistence,  and  the  ground 
upon  which  the  court  rested  the  decision 
that  is  now  under  review,  is  that  the  ad- 
journment order  of  March  12  brought  the 
term  to  an  end,  so  far  as  criminal  business 
was  concerned,  and  left  the  court  without 
jurisdiction  to  entertain  the  motion  of  May 
24,  or  grant  a  new  trial  thereon,  because  a 
court  of  law  cannot  set  aside  or  alter  its 
final  judgment  after  the  expiration  of  the 
term  at  which  it  was  rendered,  except  pur- 
suant to  an  application  made  within  the 
term.  United  States  v.  Mayer,  235  U.  S. 
55,  67,  59  L.  ed.  129,  135,  35  Sup.  Ct.  Rep. 
16. 

The  order  of  March  12  must  be  read  in 
connection  with  the  general  rule  to  which 
it  refers,  and  this  must  be  interpreted  in 
the  light  of  the  law  regulating  the  terms  and 
the  business  of  the  court.  General  rule  No. 
1  ia  as  follows: 

''The  law  requiring  the  court  to  be  always 
open  for  the  transaction  of  certain  kinds  of 
business  which  may  be  [610]  transacted 
under  the  statutes,  and  under  the  orders 
of  the  judge,  who  may  at  the  time  be  ab- 
sent from  the  place  in  which  the  court  is 
held,  and  which  business  can  be  transacted 
60  Ij*  ed. 


by  the  clerk  under  the  orders  of  the  judge, 
and  is  transacted  from  day  to  day  in  the 
court,  it  is  ordered  that,  pending  the  tem- 
porary absence  of  the  presiding  judge  of 
this  district  from  the  district,  or  the  divi- 
sion of  the  district  in  which  business  is  pre- 
sented to  be  transacted,  the  clerk  be  pres- 
ent, either  by  himself  or  his  deputy,  daily, 
for  the  transaction  of  business,  and  upon 
such  days  as  there  is  business  to  be  trans- 
'acted  the  court  be  opened,  and  that  a  record 
of  the  same  be  entered  upon  each  of  said 
days  upon  the  minutes." 

The  provisions  of  law  referred  to  are  to 
be  found  in  the  Judicial  Code  (act  of  March 
3,  1911,  chap.  231,  36  SUt.  at  L.  1087, 
Comp.  Stat.  1913,  §  1061),  of  which  §  76 
divides  the  state  of  Florida  into  two  dis- 
tricts, northern  and  southern,  and  provides: 
"Terms  of  the  district  court  for  the  south- 
em  district  shall  be  held  at  Ocala  on  the 
third  Monday  in  January;  at  Tampa  on 
the  second  Monday  in  February;  at  Key 
West  on  the  first  Mondays  in  May  and  No- 
vember; at  Jacksonville  on  the  first  Mon- 
day in  December;  at  Femandina  on  the 
first  Monday  in  April;  and  at  Miami  on 
the  fourth  Monday  in  April.  The  district 
court  for  the  southern  district  shall  be  open 
at  all  times  for  the  purpose  of  hearing  and 
deciding  causes  of  admiralty  and  maritime 
jurisdiction." 

Other  sections  to  be  considered  are :  Sec. 
9  (§§  574  and  638,  Rev.  Stat.),  which  de- 
clares that  the  district  courts,  as  courts  of 
admiralty  and  as  courts  of  equity,  shall  be 
deemed  always  open  for  the  purpose  of  filing 
pleadings,  issuing  and  returning  process, 
and  making  interlocutory  motions,  orders, 
etc.,  preparatory  to  the  hearing  upon  the 
merits;  §  10  (§  578,  Rev.  Stat.),  requiring 
such  courts  to  hold  monthly  adjournments 
of  their  regular  terms  for  the  trial  of  crimi- 
nal causes  when  the  business  requires  it; 
[611]  and  §  11  (§  581,  Rev.  Stat.),  which 
declares  that  a  special  term  of  the  district 
court  may  be  held  at  the  same  place  where 
any  regular  term  is  held,  or  at  such  other 
place  in  the  district  as  the  nature  of  the 
business  may  require,  and  at  such  time  and 
upon  such  notice  as  may  be  ordered  by  the 
district  judge,  and  that  any  business  may  be 
transacted  at  such  special  term  which  might 
be  transacted  at  a  regular  term. 

The  provision  of  §  76,  which  requires  the 
district  court  to  be  open  at  all  times  for 
the   purpose  of  hearing   and   deciding*  ad- 
miralty causes,  traces  its  origin  to  the  act 
of  February  23,  1847   (chi^).  20,  9  -Stat,  at 
\  L.  131,  Comp.  Stat.  1913,  §  1061),  which 
I  established  the  southern  district  of  Florida, 
I  evidently  for  the  especial  purpose  of  dis- 
I  posing  of  admiralty  business;  and  this  par- 
ticular provision  was  carried  into  the  Re- 
76  1201 


«11-«18 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  TtMM, 


vised  Statutes  as  {  675.  It  covers  the 
hearing  and  deciding  of  admiralty  causes, 
while  the  provision  now  found  in  §  9,  Ju- 
dicial Code  (§§  674  and  638,  Rev.  Stat.), 
which  originated  in  an  act  of  August  23, 
1842  (chap.  188,  8  6,  6  Stat,  at  L.  617, 
Comp.  SUt.  1913,  8  976),  relates  to  inter- 
locutory proceed^gs  **pr€^ratory  to  the 
hearing." 

The  statutory  provisions  referred  to  are 
designed  to  render  the  district  courts  read- 
ily accessible  to  applicants  for  justice  in 
all  branches  of  the  jurisdiction;  and  while 
they  require  those  courts  to  be  always  open 
only  as  courts  of  admiralty  and  as  courts  of 
equity,  they  permit  "special  terms"  to  be 
held  at  any  time  for  the  transaction  of  any 
kind  of  business. 

The  celebrated  remark  of  Lord  Eldon: 
'llie  court  of  chancery  is  always  open" 
(Temple  v.  Bank  of  England,  6  Yes.  Jr. 
770,  771),  evidenced  the  great  adaptability 
of  the  practice  of  that  court  to  the  needs 
of  litigants;  and  modem  legislation  has 
shown  a  strong  tendency  to  reform  the  prac- 
tice of  common-law  courts  by  facilitating  the 
transaction  of  their  business  in  vaction.  The 
sections  we  have  quoted  from  the  Judicial 
Code  indicate  a  policy  of  avoiding  the  hard- 
ships consequent  upon  a  closing  [618] 
of  the  court  during  vacations.  The  general 
rule  in  question  was  evidently  designed  to 
carry  out  this  policy,  and  should  receive  a 
liberal  interpretation  consonant  with  its 
spirit:  that  is,  as  keeping  the  term  alive,  by 
adjournments  from  day  to  day,  pending  the 
temporary  absence  of  the  presiding  judge, 
so  that  court  might  and  should  be  actually 
opened  upon  such  days  as  there  was  busi- 
ness of  any  character  to  be  transacted.  Thus 
interpreted,  its  effect  was  not  different  from 
that  of  the  rule  which  this  court,  in  Harlan 
V.  McGourin,  218  U.  S.  442,  449,  460,  64  L. 
ed.  1101,  1105,  1106,  31  Sup.  Ct.  Rep.  44,  21 
Ann.  Cas.  849,  construed  as  keeping  the 
court  open  from  the  beginning  of  one  statu- 
tory term  until  the  beginning  of  the  next. 
Judge  Locke  so  construed  the  general  rule 
and  the  adjournment  order  nuide  under  it, 
when  he  entertained  and  granted  the  motion 
for  new  trial  filed  May  24,  1912,  and  we  are 
satisfied  that  he  committed  no  jurisdictional 
error  in  so  doing.  It  is  obvious  that  the 
order  for  a  new  trial  necessarily  vacated 
the  sentence  of  March  12,  1912,  and  that 
the  subsequent  acquittal  of  appellant  ex- 
hausted the  power  of  the  court  under  the 
first  indictment. 

Nor  is  appellant,  in  our  opinion,  estopped 
to  assert  the  jurisdiction  of  Judge  Locke 
to  entertain  the  motion  for  a  new  trial. 
The  estoppel  is  sought  to  be  based  upon  the 
position  he  is  said  to  have  taken  in  de- 
murring to  and  moving  to  quash  the  indict- 
1202 


ment  for  subornation  of  perjury.  The  ree- 
ord  shows,  however,  that  the  demurrer  and 
motion  were  based  upon  the  ground  that 
the  motion  for  new  trial  was  not  filed  with- 
in four  days  after  verdict.  This  was  true 
in  fact,  but  the  court  in  effect  held  it  not 
well  founded  in  law;  for  it  proceeded  to 
sustain  the  demurrer  and  quash  the  indict- 
ment u^n  another  ground,  and  one  not 
taken  by  appellant,'  tnar.,  that  the  adjourn- 
ment order  of  March  12,  1912,  brought  the 
term  to  a  conclusion  and  deprived  Judge 
Locke  of  power  to  set  aside  the  final  judg- 
ment and  sentence  passed  upon  appellant 
[613]  on  that  day.  The  fundamental 
ground  of  an  estoppel  is  wanting,  and  we 
need  not  weigh  other  considerations  that 
might  operate  against  it. 

The  judgment  of  conviction  having  been 
vacated  by  an  order  of  the  court,  made 
within  the  scope  of  its  power  and  jurisdic- 
tion, there  remains  no  legal  foundation  for 
the  commitment  issued  on  March  20,  1915, 
and  appellant  is  entitled  to  be  discharged 
from  custody. 

Final  order  reversed,  and  the  cause  re- 
manded for  further  proceedings  in  con- 
formity with  this  opinion. 

Mr.  Justice  McReynolds  took  no  part  in 
the  consideration  or  decision  of  this  case. 


MUTUAL  LIFE  INSURANCE  COMPANY 
OF  NEW  YORK,  Petitioner, 

V. 

L.  HILTON-GREEN  and  W.  A.  FinUy,  Jr., 
as  Executors  of  the  Estate  of  C.  L.  Wig- 
gins, Deceased. 

(See  S.  C.  Reporter's  ed.  613-624.) 

Insuranoe  —  false  repreBentatlons  — 
fraudulent  intent. 

1.  Material  incorrect  representations 
in  the  application  for  a  policy  of  life  in- 
surance, which  is  made  an  essential  con- 
stituent of  the  policy,  if  known  to  be  un- 
true by  the  assured  when  made,  invalidate 
the  policy  without  further  proof  of  actual, 
conscious  design  to  defraud. 

LFor  other  cases,  see  Insurance,  V.  a,  4,  In  Di- 
gest Sup.  Ct.  1008.] 

Notice  —  imputed  —  knowledge  of  agent. 

2.  The  rule  which  imputes  an  agent's 
knowledge  to  the  principal  does  not  apply 

Note. — On  effect  of  knowledge  by  insur- 
ance agent  of  falsity  of  statement  in  ap- 
plication— see  note  to  Clemans  v.  Supreme 
Assembly,  R.  S.  G.  F.  16  LJLA.  33. 

On  bad  faith  of  insured  as  affecting 
estoppel  of  insurer  to  set  up  falsity  of 
answers  in  application  because  of  agenfs 
knowledge  of  such  falsity — see  note  to 
Mudge  V.  Supreme  Ct.  L  0.  F.  14  LJU. 


'  (N.S.)  279. 


241  V.  S. 


1016.  MUTUAL  L.  INS.  CO.  t.  BILTON-QREEN. 

when  the  third  party  was  ae<^uainted  with  I  in  regard  to  matters  material  to  the  risk, 
circumstances  plainly  indicating  that  the '  as  a  matter  of  law,  there  cannot  be  a  re- 
agent would  not  advise  his  principal.  covery 

^  8Sp!*Ct"l90^*  ■**  ^°"'^*  "•  *•  ^'^  ^*''"*       ^tna  L.  Ins.  Co.  v.  Moore,  231  U.  S.  643, 

Insurance  —  estoppel  —  agent's  knowl-  ^8  L.  ed.  356,  34  Sup.  Ct.  Rep.  186 ;  Pru- 

edge    «    fraudulent     misrepresenta-  dential  Ins.  Co.  v.  Moore,  231  U.  S.  560,  58 

tlons.  L.  ed.  367,  34  Sup.  Ct.  Rep.  191;  Thomer 

3.  The  designation  as  agent  of  an  in-  v.  John  Hancock  Mut.  L.  Ins.  Co.  164  App. 

surance   company,   made   by    Florida    Gen.  piv.   34,  149  K.  Y.  Supp.  345;   Archer  v. 

Stat.  §  2705,  of  any  person  who  in  anywise.  Equitable  Life  Assur.  Soc.   169  App.   Div. 

directly  or  indirectly,  makes  or  causes  to  ^   ^       ^    ^    g  ^^^    53  j^    y.  L.  J. 

be  made  any  contract  of  insurance  for  or  ,_'       '      ,  xt    au  o*  i.    ■*#  *   t    t 

on  account  of  such  insurance  company,  does  J?^ V^^^t'^'L^^I;  ^"L"^  ^^*f^^''^  .V.^n 

not  affect  the  true  relationship  to  the  par-  Co.  163  N.  C.  367,  48  L.R.A.(N.8.)  714,  79 

ties  to  a  life  insurance  contract  of  the  local  S.  E.  806,  Ann.  Cas.  1915B,  652;  March  v. 

manager,  soliciting  agent,  and  local  medical  Metropolitan  L.  Ins.  Co.   186  Pa.  640,  65 

examiners,    who    were    in    fact    designated  Am.  St.  Rep.  887,  40  Atl.  1100;  Equitable 

agents  of  the  company,  with  power  to  bind  Life  Assur.  Soc.  ▼.  Keiper,  91  C.  C.  A.  433, 

it    within    their    apparent   authority,    and  jgg  y^^  595    Mutual  L.  Ins.  Co.  ▼.  Mullan, 

their  knowledge  of  the  falsity  and  fraudu.  ^^^  ^^        ^    ^^  ^^,    3^5     Metropolitan  L. 

loit  character  of  material   representations  _       _         t»ui        ^,0  tr       i^iaiot-da 

by  the  insured  in  the  application,  which  is  ^^^'  Co.  v.  Brubaker,  78  Kan.  146,  18  L.R.A. 

made  an  essential  constituent  of  the  policy,  (N.S.)   362,  130  Am.  St.  Rep.  356,  96  Pac. 

is  not  the  knowledge  of  the  company,  and  62,   16  Ann.   Cas.  267;    Cobb  v.  Covenant 

does  not  estop  it  to  rely  upon  such  misrep-  Mut.  Ben.  Asso.  153  Mass.  176,  10  L.R.A. 

resentatiohs  as  a  defense  to  an  action  on  the  606,  26  Am.  St.  Rep.  619,  26  N.  E.  230 ; 

policy.  Lippincott  v.  Supreme   Council,  R.  A.,  64 

^^SI  D'iUt'sS^:  ^ iSSsT""'  """•  '•  "•  ••    N.  J.  L.  310,  45  Atl.  774;  Farrell  v.  Secu- 

rity  Mut.  L.  Ins.  Co.  60  C.  C.  A.  374,  125 
[No.  126.]  Fed.  684:  Mutual  L.  Ins.  Co.  v.  Powell,  133 

^  _         ,       ^       J  ,A    ,n,r     TV.  -J  J    C.  C.  A.  417*  217  Fed.  566;  Life  Asso.  of 
Argued  December  9  and  10    1916.    Decided   ^^^^.^  ^    Edwards,  86  C.  C.  A.  243,  159 

June  12,  1916.  p^   gg.  Hubbard  v.  Mutual  Reserve  Fund 

Oxr   TtTDTrii   ^#0    *;  .  .;   *«   ♦u-.   TT«u^  Life  Asso.  40  C.  C.  A.  665,  100  Fed.  719; 

N  WRIT  of   Certiorari  to  the  United  ^ii  jj  vr      v    i   t    t       /^     on  ^-i  n    a 

a±  4.       r*'      •*    r«      *      #    a^«^-i«    *«•  Sladdcu  V.  Ncw  York  L.  Ins.  Co.  29  C.  C.  A. 

States   Circuit   Court   of   Appeals   for  ^^-    «.«  tt  o    *        ^on   oi>  i?  j    iaa    t>    j 

*i.  T?**i.  r«j-^»,-4.  ♦^  ™:*—  -  ;«^«r,«««*  696,  58  U.  S.  App.  482,  86  Fed.  102;  Brady 
the    Fifth    Circuit   to   review   a   judgment        tt    *  j  t  •*    t        a         n  n  n    a    oea   oa 

which  affirmed  a  judgment  of  the  Diatrict  Y:  United  Life  InB.  Asso.  9  C  C   A.  252   20 

Court  for  the  Northed  Diatrict  of  Florida  V'  ^.^PPf  ^  ^'^  ^'^Jaf '  T  ^r'  «  v" 
in  favor  of  plaintiffa  in  an  action  upon  poli-  ^„$*"^  b  ^"''- ^-  .^^.^  ^^  ^  '"'  "  ^^ 
de.  of  life*^  inmirance.     Reveraed  and   re-   f- 398;  Foley  v.  Royal  Arc«.um   161  NY. 

manded  for  further  proceeding..  J?«'  ?f  ^"'-  ^Ji'  ^P-  «21.  «  N.  E    456; 

o  V  1  -.   10T  n  n    A   Aa»r  011    McCollum  V.   Mutual  L.  Ins.  Co.  65  Hun, 

See  same  ca-  below,  127  0.  C.  A.  467.  211    ^^,3   ^  ^^   ^   g^^^   249.  124  N.  Y.  642.  27 

'ike  fact,  are  stated  in  the  opinion.  N.  E.  412 ;   Foote  v.  ^tna  L.  In j^  Co    61 

*^  N.  Y.  571 ;  Smith  v.  .£tna  L.  Ins.  Co.  49  N. 

Mr.    Frederick    li.    Allen    argued    the    Y.  211;    Hoffman   v.  Metropolitan  L.   Ins. 

cause,  and,  with  Messrs.  Emmett  Wilson,    Co.  141  App.  Div.  713,  126  N.  Y.  Supp.  436; 

Philip  D.  Beall,  and  Murray  Downs,  filed    Dentz  v.  O'Neill,  25  Hun,  442;  Kasprzyk  v. 

a  brief  for  petitioner:  Metropolitan  L.  Ins.  Co.  79  Misc.  263,  140 

N.  Y.  Supp.  211;  Mutual  Reserve  Fund  Life 
Asso.  V.  Cotter,  72  Ark.  620,  83  S.  W.  321; 
Crosse  v.  Supreme  Lodge,  K.  L.  H.  254  111. 
80,  45  L.ILA.(N.S.)  162,  98  N.  E.  261; 
Royal  Neighbors  v.  Spore,  160  Ky.  572,  169 
S.  W.  984;  Metropolitan  L.  Ins.  Co.  v 
Schmidt,  29  Ky.  L.  Rep.  255,  93  S.  W. 
1055;  Aloe  v.  Mutual  Reserve  Life  Asso. 
147  Mo.  561,  49  S.  W.  553;  Dwyer  v.  Mu- 
tual L.  Ins.  Co.  72  N.  H.  672,  68  Atl.  502 ; 
Brunjes  v.  Metropolitan  L.  Ins.  Co.  83  N. 
J.  L.  296,  84  Atl.  1062;  Bryant  v.  Metro- 
politan L.  Ins.  Co.  147  N.  C.  180,  60  S.  E. 
983;  Van  Woert  v.  Modem  Woodmen,  29 
N.  D.  441,  151  N.  W.  224;  Beard  v.  Royal 
Neighbors,  53  Or.  102,  19  L.R.A.(N.S.)  798, 
99  Pac.  83,  17  Ann.  Cas.  1199;  Smith  v. 

60  li.  ed.  120S 


What  the  company  required  of  the  appli- 
cant, as  a  condition  precedent  to  any  bind- 
ing contract,  was,  that  he  would  observe 
the  utmost  good  faith  towards  it,  and  make 
full,  direct,  and  honest  answers  to  a^l 
questions,  without  ^evasion  or  fraud,  and 
without  suppression,  misrepresentation,  or 
concealment  of  facts  with  which  the  com- 
pany ought  to  be  made  acquainted;  and 
that  by  so  doing,  and  only  by  so  doing, 
would  he  be  deemed  to  have  made  fair  and 
true  answers. 

Moulor  V.  American  L.  Ins.  Co.  Ill  U.  S. 
835,  28  L.  ed.  447,  4  Sup.  Ct.  Rep.  466. 

Under  the  provisions  of  the  policy  sued 
upon,  it  having  been  conclusively  estab- 
lished that  Wiggins  made  false  statements 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct. 


Northwestern  Mut.  L.  Ins.  Co.  196  Pa.  314, 

46  Atl.  426;  Mengel  v.  Northwestern  Mut. 
L.  Ins.  Co.  176  Pa.  280,  35  Atl.  197 ;  Fidel- 
ity Mut.  Life  Asso.  v.  Harris,  94  Tex.  25, 
86  Am.  St.  Rep.  813,  57  S.  W.  635. 

Wiggins  made  a  false  and  untrue  state- 
ment with  reference  to  a  matter  material 
to  the  risk. 

MinA  L.  Ins.  Co.  v.  Moore,  231  U.  S. 
543,  58  L.  ed.  35G,  34  Sup.  Ct.  Rep.  186; 
Prudential  Ins.  Co.  v.  Moore,  231  U.  S.  560, 
58  L.  ed.  367,  34  Sup.  Ct.  Rep.  191;  Phoenix 
Mut.  L.  Ins.  Co.  V.  Raddin,  120  U.  S.  183, 
30  L.  ed.  644,  7  Sup.  Ct.  Rep.  500;  Jeffries 
V.  Economical  Mut.  L.  Ins.  Co.  22  Wall.  47, 
22  L.  ed.  833;  Home  L.  Ins.  Co.  v.  Myers, 
50  C.  C.  A.  544,  112  Fed.  846;  Security  Mut. 
L.  Ins.  Co.  V.  Webb,  55  L.R.A.  122,  45  C.  C. 
A.  648,  106  Fed.  808;  Floyd  v.  Metropolitan 
L.  Ins.  Co.  —  Del  — ,  90  Atl.  404 ;  Kelly  v. 
Life  Ins.  Clearing  Co.  113  Ala.  453,  21  So. 
361;  Moore  v.  Mutual  Reserve  Fund  Life 
Asso.  133  Mich.  526,  95  N.  W.  573;  Finn  v. 
Metropolitan  L.  Ins.  Co.  70  N.  J.  L.  255,  57 
Atl.  438;  Edington  v.  JStna  L.  Ins.  Co.  77 
N.  Y.  564,  100  N.  Y,  536,  3  N.  E.  315 ;  Mc- 
Collum  V.  Mutual  L.  Ins.  Co.  55  Hun,  103,  8 
N.  Y.  Supp.  249,  124  N.  Y.  p42,  27  N.  E. 
412;  Stuart  v.  Mutual  Reserve  Fund  Life 
Asso.  78  Hun,  191,  28  N.  Y.  Supp.  944; 
March  v.  Metropolitan  L.  Ins.  Co.  186  Pa. 
629,  65  Am.  St.  Rep.  887,  40  AtL  1100; 
Mutual  L.  Ins.  Co.  v.  Nichols,  —  Tex.  Civ. 
App.  — ,  24  S.  W.  910;  American  Union  L. 
Ins.  Co.  V.  Judge,  191  Pa.  484,  43  Atl.  374 ; 
Meyer-Bruns  v.  Pennsylvania  Mut.  L.  Ins. 
Co.  189  Pa.  579,  42  Atl.  297;  Hardy  v. 
Phoenix  Mut.  L.  Ins.  Co.  167  N.  C.  22,  83 
S.  E.  5. 

Wiggins  intended  to  deceive  the  insurance 
company. 

Studwell  V.  Mutual  Ben.  Life  Asso.  29 
Jones  &  S.  287,  19  N.  Y.  Supp.  709,  affirmed 
without  opinion  in  139  N.  Y.  615,  35  N.  E. 
204;  Northwestern  L.  Ins.  Co.  v.  Mont- 
gomery, 116  Ga.  799,  43  S.  E.  79;  Williams 
V.  St.  Louis  L.  Ins.  Co.  97  Mo.  App.  449,  71 
8.  W.  376;  Graffam  v.  Burgess,  117  U.  S. 
180,  29  L.  ed.  839,  6  Sup.  Ct.  Rep.  686. 

Knowledge  of  an  agent  will  not  be  im- 
puted to  his  principal  where  the  third 
party  and  agent  are  committing  a  fraud 
upon  the  principal. 

Eagle  Fire  Co.  v.  Lewallen,  56  Fla.  246, 

47  So.  947;  Florida  L.  Ins.  Co.  v.  Dillon, 
63  Fla.  140,  58  So.  643;  Maier  y.  Fidelity 
Mut.  Life  Asso.  24  C.  C.  A.  239,  47  U.  S. 
App.  322,  78  Fed.  566;  United  States  L. 
Ins.  Co.  V.  Smith,  34  C.  C.  A.  506,  92  Fed. 
503;  American  Nat.  Bank  v.  Miller,  107  C. 
C.  A.  456,  185  Fed.  338,  229  U.  S.  517,  57 
L.  ed.  1310,  33  Sup.  Ct.  Rep.  883;  Thomson- 
Houston  Electric  Co.  v.  Capitol  Electric  Co. 
12  C.  C.  A.  643,  22  U.  S.  App.  669,  65  Fed. 
1204 


341;  Louisville  Trust  Co.  v.  LouisWlle,  N. 
A.  &  C.  R.  Co.  22  C.  C.  A.  378,  43  U.  S.  App. 
550,  75  Fed.  433;  Lindsey  ▼.  Lambert  Bldg. 
&  L.  Asso.  4  Fed.  48;  Iverson  y.  Metro- 
politan L.  Ins.  Co.  151  Cal.  746,  13  KILA. 
(N.S.)  866,  91  Pac.  609;  Loftin  v.  Great 
Southern  Home  Benev.  Asso.  9  Ga.  App. 
121,  70  S.  E.  353;  Forwood  y.  Prudential 
Ins.  Co.  117  Md.  254,  83  AU.  169;  Bone- 
well  v.  North  American  Acci.  Ins.  Co.  160 
Mich.  137,  125  N.  W.  59;  Sprinkle  v. 
Knights  Templar  &  M.  Life  Indemnity  Co. 
124  N.  C.  405,  32  S.  E.  734;  Burruss  v. 
National  Life  Asso.  96  Va.  543,  32  S.  E. 
49;  Elliott  V.  Knights  of  Modem  Macca- 
bees, 46  Wash.  320,  13  L.RJl.(NJS.)  856, 
89  Pac.  929;  Wilhelm  v.  Columbian 
Knights,  149  Wis.  585,  136  N.  W.  160. 

The  defendant  did  not  ratify  the  acts  of 
Torrey,  Hogue,  or  the  medical  examiners, 
Turberville  and  Kilpatrick. 

Oxford  Lake  Line  v.  First  Nat.  Bank,  40 
Fla.  349,  24  So.  480;  Skinner  Mfg.  Co.  v. 
Douville,  57  FU.  180,  49  So.  125. 

The  knowledge  of  Hogue,  Torrey,  and  the 
doctors  cannot  be  imputed  to  the  petitioner 
to  establish  an  estoppel  or  waiver. 

Mutual  L.  Ins.  Co.  v.  Powell,  133  C.  C. 
A.  417,  217  Fed.  565;  John  Hancock  Mut. 
L.  Ins.  Co.  V.  Houpt,  113  Fed.  572;  Butler 
v.  Michigan  Mut.  L.  Ins.  Co.  184  N.  Y.  337, 
77  N.  E.  398;  Smith  y.  JBtna  L.  Ins.  Co. 
49  N.  Y.  215;  Flynn  v.  Equitable  L.  Assur. 
Soc.  67  N.  Y.  503,  23  Am.  Rep.  134;  Foot 
V.  Mtna,  L.  Ins.  Co.  61  N.  Y.  571;  McCol- 
lum  y.  Mutual  L.  Ins.  Co.  55  Hun,  106,  8 
N.  Y.  Supp.  249,  124  N.  Y.  642,  27  N.  E. 
412;  Lewis  v.  Phoenix  Mut.  L.  Ins.  Co.  39 
Conn.  IQO;  Ryan  v.  World  Mut.  L.  Ins.  Co. 
41  Conn.  168,  19  Am.  Rep.  490;  MatUon 
V.  Modern  Samaritans,  91  Minn.  434,  98  N. 
W.  330;  Madsen  v.  Maryland  Casualty  Co. 
168  Cal.  204,  142  Pac.  51;  Dimick  v.  Met- 
ropolitan L.  Ins.  Co.  69  N.  J.  L.  384,  62 
L.RJI.  774,  55  Atl.  291;  Silcox  v.  Grand 
Fraternity,  79  N.  J.  L.  502,  76  Atl.  1018. 

The  statutes  of  the  states  of  Massachu- 
setts, Wisconsin,  Missouri,  Illinois,  and 
Texas  contain  provisions  similar  to  the  pro- 
visions of  the  Florida  statute  on  the  sub- 
ject of  agents. 

The  purpose  of  the  statutes  was  to  make 
a  person  doing  the  acts  specified  in  the 
statutes  amenable  to  the  penalties  imposed 
by  the  statutes  in  the  event  of  the  so-called 
"agent"  attempting  to  represent  or  repre- 
senting a  foreign  corporation  which  had  not 
submitted  itself  to  the  jurisdiction  of  the 
state. 

Markey  v.  Mutual  Ben.  L.  Ins.  Co.  103 
Mass.  78;  Wood  v.  Firemen's  F.  Ins.  Co.  126 
Mass.  319;  John  R.  Davis  Lumber  Co.  v. 
Hartford  F.  Ins.  Co.  95  Wis.  226,  37  L.RJL 
131,  70  N.  W.  84;  Hartford  F.  Ins.  Co.  y. 

241  U.  8. 


UUb  MUTUAL  I..  IKS.  CX).  t.  BILTON-QEEEH. 

Wftlker,  M  Tex.  473,  61  8.  W.  70Si  Mallan  L.  ed.  B33;  Andenon  t.  FiUgerald,  4  H.  L. 

V.  N^tioutl  Idle  Aho.  168  Mo.  App.  H)3,  Cm.  484,  17  Jur.  995;  Macdtmald  \.  Iaw 

163  8.  W.  1066;  United  Firemen'B  Ins.  Co.  Union  F.  t  U  Ini.  Co.  L.  R.  »  Q.  B.  828, 

T.  Thomu,  47  UR~&.  456,  34  C.  C.  A.  240,  43  L.  J.  Q.  B.  N.  S.  131,  30  L.  T.  N.  8.  CiS, 

ez  Fed.  127.  22  Wedc.  Rep.   630;   Edington  v.  Mta»  U 

H(«iie  «M  Wiggini'B  broker.  Ini.  Co.  77  N.  Y.  604,  100  N.  Y.  S36,  3  N. 

United    Firemen'*    Iob.    Co.    t.    Thomu,  E,  315;  Ph<enix  Mut.  L.  Ina.  Co.  t.  RaddlD, 

nipn;    Americu    Stemm    LAundiy    Co.    v.  120  U.  S.  189,  30  U  ed.  646,  T  Sup.  Ct.  Rep. 

Hamburg  Bremen  F.  Ina.  Co.  121  Tenn.  13,  GOO. 

21  LJ{.A.(N.S.)    442,  113  S.  W.  394.  But  answen  to  questiona  propounded  bf 

Courts  will  enforce  the  coutracta  aa  made  the   inaurera   in   an   application   lor   inanr- 

by  the  partiea.  ance,  unleaa  they  are  clearly  ahown  by  the 

M^er  V.  Fidelity  Hut.  life  Aaao,  24  C.  face  of  the  contract  to  haTe  been  intended 

C.  A.  23S,  47  U.  S.  App.  322,  7B  Fed.  G6e;  by   both    partiea   to   be   wmrranties,   to   be 

New  York  L.  Ina.  Co.  v.  Fletcher,  117  U.  S.  strictly  and  literally  complied  with,  are  to 

619,   29   L.   ed.  934,   0  Sup.   Ct.   Rep.   837;  be  conitrued  aa  repreaentationa,  aa  to  wbieh 

Rnaaell   t.   Prudential   In*.   Co.   176   N.   Y.  aubatAntial  truth,  in  everything  material  to 

188,  98   Am.  St.  Rep.   HS6,  68  N.   E.   262;  the  riik,  la  all  that  ia  required  of  the  appli- 

Prorident  Sav.  Ufe  Aaiur.  Soc,  t.  Withers,  cant. 

138  Ky.  541,  116  S.  W.  350;  New  York  L.  Moulor  v.  American  U  Ins.  Co.  Ill  U.  8. 

Ina.   Co.  V.   O'Dom,  100   Miaa.   219,  6S   So.  335,   2B   L.   ed.   447,   4   Sup.   Ct.   Rep.   460; 

379,  Ann.  Caa.  1914A,  683;  Ijam*  t.  Provi-  Campbell  v.  New  England  Mut.  L.  Ins.  Co. 

dent  Sav.  Life  Aaaur.  Co.  186  Ho.  406,  84  08  Maas.  381 ;  Thomson  v.  Weems,  L.  R.  t 

B.  W.  61.  App.  Caa.  671;   Phteniz  Mut.  L.  Ina.  Co.  t. 

Hr.    W.    A.    Sloant   argued   the   cause,  ^'*'";  '"?";.         .      ^^  .     ,^ 

and.  with  Meaara.  F.  B.  Carter  and  A.  C  ,.  ^^  *>"  f ,"!.'""'.  ""^'**^/?  *^!  'PP"'*- 

Blount,   filed   a  brief  for  respondent*:  *"'°:   «^V3efeDdant  was  seeking  for  infor- 

The  blank  form  when  flHed  out  and  f"*'*"',^'**"''^  "P"°  ^^^.  ""'',  ,''  *"  ^ 
aigned  by  the  applicant,  and  delivered  to  *'''?■-*'''  ^'°^^^'  duration  of  the  l.fe  to 
the  ag^t,  constituted  and  completed  the  ^  '°^^'^-  "  ""  "»»  '«'="■«  [^  'n'"" 
«ppli«tion  for  insurance.  Everything  that  -""V""  ."  tf  ^"""/^^'y  *^P?«7  disorders. 
(Minu,.^  »i.~  »  11  „i-  I  _  .  I  or  functional  diatorbancea,  having  no  bear- 
followed  the  application  waa  an  element  of  .  ,  ,.,  ..  ?,., 
its  result  "^  upon  health  or  continuance  of  life. 

■  Mli.gto«  T.  ma.  L.  I...  Co.  100  N.  Y.  ^'^■''°"'  '■  """*  ""^  "-  ■"■  '^-  ™ 

"E.imWi.g"lhU  Jl  .BMgultia  mu.t  ^"J"-^  «»•'  ;»'  >'l»n,mr,,  1..y1i« 

b.  r«olvrf  .^li,«  th,  ™„p„y   (Thomp-  »•  •I»'-«»«<U.  b«l  nml  be  .u.h  u  t«  d»- 

un  ..  PhmUIl...  Co.  136  D    S.  287,  M  L.  "^  ."  ''•'•"I!'.  "  '"•'  ">'  •  '™".  '"•' 

ed.  408.  10  Sup.  Ct.  Rep.  1010).  juid  that  f"°«'°"'-      .    „  ^    ^     ^        „ 

f ha  »>■;«.  _;ti   .,.,«   K..  r      ..    .  J          .  Connecticut    Mut.    U    In,.    Co.   v.   UnioB 

I'bSv,:^  ts,zz"^  "bi  r"'rp%'"„".  =  "'■ " "-  «■■  '"■ ' 

lutely  required   (McMaster  v.  New  York  L.  *"''   ^  1      P  .  ■    ",,.      ,. 

Ina.  Co.  183  U.  8.  25-40,  46  L.  ed-  04-73,  ^  statement  in  the  absence  of  a  warranty. 


22  Sup.  Ct.  Rep.  10),  it  should  be  held  that 


and   ao   being   a   representation,    muat   not 


the  application  does  not  include  the  medical  ""'?  *f.  "'f"'  *■"*  """'■   '"  "**"  *"  """^ 

examiner's  report;   and  so  it  has  been  held  *''*  P*"'"^'  ''*"  ^"  ""<'*  kno*"'^'?.  with 

( Boehm  V.  Commercial  Alliance  Ins.  Co.  9  *  fraudulent  intent  to  mislead  and  deceive. 

Misc.  629,  30  N.  Y.  Supp.   860,  affirmed  in  '**"*  ^-  T""-  ^°-  '■  H^tlaender,  68  Neb. 

35  N.  Y.  Supp.   1103;   Higbee  v.  Guardian  ^84,  94  N.  W.  129,  4  Ann.  Caa.  261. 

Mut.  L.  Ins.  Co.  66  Barb.  462).  The  lanjfuage  of  this  policy  requires  that 

The  parties  may,  by  their  contract,  make  »■>  avoiding  representation  shall  not  only 
material  a  fact  that  would  otherwise  be  im-  be  material  and  false,  but  fraudulent, 
material,  or  make  immaterial  a  fact  that  Pelican  v.  Mutual  L.  Ins.  Co.  44  Mont, 
would  otherwise  be  material.  Whether  277,  119  Pae.  778;  -Etna  L,  Ins.  Co.  v.  Out- 
there  ia  other  insurance  on  the  same  sub-  law,  114  C.  C.  A.  608,  194  Fed.  862;  Mu- 
ject,  and  whether  such  insurance  hag  been  tual  I*  Ins.  Co.  v.  Hilton-Green,  127  C.  C, 
applied  for  and  refused,  are  material  facts;  A.  467,  211  ,Fed.  31. 

at   least,   when   statements   regarding   them  A  soliciting  agent  who  prepare*  an  appll- 

are  required  by  the  insurers  as  part  of  the  cation  and  geta  the  agent  of  another  com- 

faaaia  of  contract.  P^ny  to  procure  hia  company  to  iasue  a  pol- 

Carpenter  v.  Providence  Washington  Ins.  icy  is  agent  of  the  Inanrer,  and  his  knowl- 

Co.  16  Pet.  406,  10  L.  ad.  1044;  Jeffriea  v.  edge  binda  it. 

Economical  MuL  L.  Ina.  Co.  22  Wall.  47,  22 '     ICausal  t.  Mlnneaota  Farmers'  Hot.  F. 

<0  lb  ed.  !>•» 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  Tbm, 


Ins.  AsBO.  31  Minn.  17,  47  Am.  Rep.  776, 
16  N.  W.  430. 

And  such  an  agent,  Boliciting  the  insur- 
ance, preparing  the  application,  giving  it  to 
such  other  agent,  and  delivering  the  policy 
and  receiving  the  premium,  is  the  agent  of 
the  insurer. 

Sias  V.  Roger  Williams  Ins.  Co.  8  Fed. 
183;  May  v.  Western  Assur.  Co.  27  Fed. 
200;  Palatine  Ins.  Co.  v.  McElroy,  40  C.  C. 
A.  441,  100  Fed.  391;  Ahlberg  v.  German 
Ins.  Co.  94  Mich.  259,  53  N.  W.  1102;  Bliss 
V.  Potomac  F.  Ins.  Co.  134  Mich.  212,  95 
N.  W.  1083;  Michigan  F.  &  M.  Ins.  Co.  v. 
Wich,  8  Colo.  App.  409,  46  Pac.  687 ;  Queen 
Ins.  Co.  V.  Union  Bank  &  T.  Co.  49  C.  C.  A. 
555,  111  F^d.  697. 

The  general  rule  that  the  knowledge  of 
an  insurance  agent  is  imputable  to  the  com- 
pany applies  also  in  most  instances  to  a 
soliciting  agent,  with  reference  to  matters 
made  known  to  him  prior  to  the  execution 
of  the  policy. 

Cooley,  Briefs  on  Ins.  p.  2524;  Bliss  v. 
Potomac  F.  Ins.  Co.  134  Mich.  212,  95  N.  W. 
1083;  Union  Mut.  L.  Ins.  Co.  v.  Wilkinson, 
13  Wall.  234-236,  20  L.  ed.  623,  624. 

Hogue  was  the  agent  of  the  petitioner 
under  Fla.   Gen.  Laws,   §§   2765,  2777. 

New  York  L.  Ins.  Co.  v.  Russell,  23  C.  G. 
A.  43,  40  U.  S.  App.  530,  77  Fed.  106. 

Under  a  like  statute,  a  broker  who  ob- 
tains for  another,  from  the  regular  agent 
of  an  insurance  company,  a  policy  which 
he  delivers  to  that  other,  and  collects 
premiums  from  him,  is  the  agent  of  the 
company,  and  his  knowledge  of  facts  af- 
fecting the  validity  of  the  policy  is  equiva- 
lent to  knowledge  of  such  facts  by  the  com- 
pany. 

Welch  y.  Fire  Asso.  of  Philadelphia,  120 
WU.  466,  98  N.  W.  227. 

Under  a  like  statute,  a  local  agent  may 
make  a  verbal  contract  of  insurance,  and 
waive  conditions. 

Zell  V.  Herman  Farmers'  Mut.  Ins.  Co.  76 
Wis.  521,  44  N.  W.  828. 

And  under  the  same  statute,  the  agent  is 
authorized  to  change  a  policy. 

Continental  Ins.  Co.  v.  Ruckman,  127  111. 
364,  11  Am.  St.  Rep.  121,  20  N.  E.  77. 

And  under  a  like  statute  this  court  has 
said,  in  effect,  that  the  agent  (in  that  case 
a  local  agent)  stood  in  the  same  position 
as  the  company's  principal  officer,  •  having 
authority  in  the  premises,  and  acting  in  the 
home  office. 

Continental  L.  Ins.  Co.  t.  Chamberlain, 
132  U.  S.  304-311,  33  L.  ed.  341-344,  10 
Sup.  Ct.  Rep.  87. 

In  a  case  where  (as  here)  the  agent  of 
one  company,  having  failed  to  get  insxir- 
ance  in  his  company,  for  an  applicant, 
sought  and  obtained  it  in  another  company, 
1206 


through  that  other  company's  agent,  he  wu 
held  (under  the  Wisconsin  statute)  to  be 
the  agent  of  the  latter  company. 

Speiser  v.  Phcenix  Mut.  L.  Ins.  Co.  110 
Wis.  630,  97  N.  W.  207. 

And  under  the  same  statute,  the  same 
rule  was  applied  to  the  case  where  the 
agent  of  one  company  applied  to  the  agent 
of  another  company  for  insurance  upon  an 
applicant,  and,  in  pursuance  of  such  appli- 
cation, a  policy  was  issued.  The  person 
who  was  agent  of  the  first  company  wu 
held  to  be  the  agent  of  the  insurer. 

Schomer  v.  Hekla  F.  Ins.  Co.  60  Wis.  675, 
7  N.  W.  544 ;  Alkan  v.  New  Hampshire  Ins. 
Co.  53  Wis.  136,  10  N.  W.  91. 

The  binding  effect  of  the  knowledge  and 
acts  of  the  agent  under  a  like  statute 
(Nebraska)  is  shown  in  New  York  L.  Ins. 
Co.  V.  Russell,  23  C.  C.  A.  43,  40  U.  S.  App. 
630,  77  Fed.  106. 

The  question  as  to  the  defendants  being 
bound  by  knowledge  of  the  general  sgent, 
made  so  by  the  statute,  is  foreclosed  by  the 
decision  of  this  court,  in  a  case  where  an 
Iowa  statute  made  a  solicitor  for  an  insur- 
ance company  an  agent  of  the  company. 

Continental  L.  Ins.  Co.  v.  Chamberlain, 
supra. 

When  a  medical  examiner  is  authorised 
by  an  insurance  company  to  fill  up  blanks 
for  answers  to  questions  to  be  propounded 
to  applicants  for  insurance  in  a  medical 
examination,  or  filling  them  up  is  within 
the  apparent  scope  of  his  authority,  and 
he  writes  down  false  answers,  and  there- 
after procures  the  signature  of  the  appli- 
cant thereto,  who  had  given  correct  an- 
swers to  the  questions,  and  the  company 
afterwards  receives  the  premium,  and  issues 
a  policy,  the  company  will,  upon  the  death 
of  the  insured,  be  estopped  from  insisting 
on  the  falsity  of  the  answers,  although 
warranted  to  be  true. 

Providence  Life  Assur.  Soc.  t.  Reutlin- 
ger,  68  Ark.  628,  26  S.  W.  836;  Dwelling 
House  Ins.  Co.  v.  Brodie,  52  Ark.  11,  4 
L.RJL  458,  11  8.  W.  1016;  Flynn  v. 
Equitable  L.  Ins.  Co.  78  N.  Y.  568,  34  Am. 
Rep.  561;  Grattan  v.  Metropolitan  L.  Ins. 
Co.  80  N.  Y.  281,  36  Aul  Rep.  617,  92  N.  Y. 
274,  44  Am.  Rep.  372;  Connecticut  General 
L.  Ins.  Co.  V.  McMurdy,  89  Pa.  363;  Pud- 
ritzky  v.  Supreme  Lodge,  K.  H.  76  Mich. 
428,  43  N.  W.  373;  EquiUble  L.  Ins.  Co. 
V.  Hazlewood,  75  Tex.  348,  7  LJtJk.  217,  H 
Am.  St.  Rep.  893,  12  S.  W.  621;  New  York 
L.  Ins.  Co.  V.  Russell,  23  C.  C.  A.  43,  40 
U.  S.  App.  630.  77  Fed.  106;  Hoeland  v. 
Western  U.  L.  Ins.  Co.  58  Wash.  100,  107 
Pac  866;  Endowment  Rank,  K.  P.  v.  Cog- 
bill,  99  Tenn.  28,  41  S.  W.  840;  Mutual  Ben. 
L.  Ins.  Co.  v.  Robison,  22  UELA.  826,  7  & 
C.  A.  444,  10  U.  &  App.  266,  68  Fed.  jQgL 

241  V.  8. 


1910.                             ICtJTDAL  L.  INS.  CO.  v.  HILTON-OREBN.  «14 

FTMiklin  L.  Id*.  Co.  v.  Oftlligan,  71  Ark.  Eunea  v.  Home  Ida.  Co.  M  D.  S.  621,  24  L. 

296,  100  Am.  St.  Rep.  73,  73  S.  W.  102.  ed.  298. 

So  much  does  the  itatute  make  the  per-  The  knowledge  of  Wiggins  that  the  itBt*- 

•on  who  directly  or  indirectly  causea  to  be  ment  wu   false  did  not  avoid  the  polity, 

made  any  owtract  of  inauranee  tor  or  on  nor  would  hie  intent  to  defraud  the  de- 

aeoonnt  of  an  insurance  company,  to  all  fendant. 

Intenta   and   purpoees  an   agent  or  repre-  2  Pom.  Eq.  Jur.  g  894;  Follette  t.  Uu- 

•entative  of   (uch   company,   that  the  com-  tual  Acci.  Asm.  110  N.   C.   37T,  15  L-R.A. 

pany  cannot,  even  by  its  contract  with  the  868,  28  Am.  St.  Rep.  896,  14  S.  B.  023,  107 

insured,  convert  such  person  into  the  agent  N.  C.  241,  12  L.R.A.  315,  22  Am.  St.  Rep. 

of  the  inaured.  878,  IS  8.  E.  370;  Sun  L.  Ins.  Co.  v.  Fhil- 

Continental  L.  Ina.  Co.  t.  Chamberlain,  lips,  —  Ter.  Civ.  App.  — ,  70  S.  W.  805; 

132  U.  S.  304,  33  L.  ed.  341,  10  Sup.  Ct.  Miller  v.  Mutual  Ren.  L.  Ins.  Co.  31  Iowa, 

Rep.  87.  216,   7   Am.   Rep.    122;    Speiser   t.   Phienis 

Consultation    of    lAyaician    within    five  Mut.  L.   Ins.  Co.   119  Wis.   630,  97   N.   W. 

years    was    not   material,    unless    about    a  207;   Continental   L.   Ins,   Co.   v.   Chamber- 

matUr  which  itself  would  make  it  mat«rial,  laiu,  132  U.  S.  304-310,  33  L.  ed.  341-344, 

— that  is,  which  would  alTect  the  aoundneaa  10  Sup.  Ct.  Rep.  87;  Mutual  Ben.  L.  Ins. 

of  the  health  or  the  length  of  the  life,  or  Co.  v.  Robison,  22  L.R.A.  325,  7  C.  C.  A. 

would  derange  vital  functions,  etc^-of  the  444, 19  U.  B-  App.  266,  68  Fed.  728;  Crouse 

applicant.  v.  Hartford  F.  Ins.  Co.  79  Mich.  249,  44  N. 

Hoeland   v.   Western   U.   L.    Ins.   Co.   08  W.  49«. 

Wash.   100,  107   Pac.   Se6-,    Blumcnthal  v.  The  mere  fact  that  Wiggins  knew,  If  he 

Berkshire  L.  Ina.  Co.  134  Mich.  216,  104  read  the  application,  that  the  anawer  aa  to 

Am.  St.  Rep.  604,  96  N.  W.  17;  Franklin  L.  the  prior  application  to  the  Prudential  was 

In*.  Co.  T.  Galligan,  71  Ark.  295,  100  Am.  not  true,  and  that  he  knew  that  the  agenta 

St.  Rep.  73,  73  6.  W.  102;  Valentini  t.  Met-  knew  that  it  was  not  true,  does  not  prove 

ropolitan  L.  Ins.  Co.  106  App,  Div,  4S7,  04  collusion. 

N.  Y.  Supp.  758;  Smith  t.  Metropolitan  L.  Speiser  v.  Phmnix  Mut.  U  Ina.  Co.  119 

Ina.  Co.  183  Pa.  S04,  38  Atl,  1038;  Genung  \;pi^  530,  97  K.  W.  207. 

V.  MetropoliUn  L.  Ina.  Co.  60  App.  DJv.  t^^  ,^at  haa  power  to  construe  the  re- 

424,  69  N.  Y.  Supp.  1011.  quirementa  mode  by  the  principal,  and  to 

The  fraud  or  diahoneaty  of  the  agent  will  determine   whether   they   have   in    a   given 

not  defeat  the  policy.  eaae  been  complied  with  or  not,  and  if  he 

Fidelity  Mut,  F.  Ina^  Co.  v.  Ix,we.  4  NA.  ^^^        ;„  ,„^            y,^j  U,„^  ^„  ^^  ^ 

Unof.      159,  93   N.   W.  749;   Germania  L.  ,„„„„„,,.„   „,   ^^ffl„i„t   „„„u.„„.    .„j 

i        _           .      ■      .    .           ,„■  ,    ,    ,„.    „.  incomplete   or   maumcient   compliance,   ana 

Ins.  Co.  T.  Lunkenheimer,  127  Ind.  536,  26  ,     -.   >.            .          ■.  ^     1.        -e  -     . 

N.  E.  1082;  Germania  F.  ins,  Co.  v.  Mckee.  "=''*P'*  '!', ''%'?"!f "™  "i^  "^  «>ffi='ent. 

M  111.  494;   Kiatcr  t.  Lebanon  Mut.  Ina!  f,^"  ^r„^.'^.^  f""  *  T"f'"^"  ^"- ^■ 

Co.  128  Pa.  6S3.  6  L.R.A.  846,  16  Am.  St  '"  01°^t«^,  21  Mich.  262.  4  Am.  Rep- «3s 

Rep.  606,  18  Atl.  447;  Dwelling  House  Ina,  ^ew  York  L.  Ina.  Co.  v.  Ruasell,  23  C,  C.  A. 

Co:  Y.  Brodie,  52  Ark.  11,  4  L.R.A.  458,  11  «,  «  U-  8.  App.  530,  77  Fed.  105;  Ameri- 

a.  W.  1016;  Menk  y.  Home  Ins.  Co.  76  Cal.  <»"  L.  Ins.  Co.  V.  Mahone,  21  Wall.  156,  22 

60,  9  Am.  St.  Rep.  168,  14  Pac.  837.  18  Pac.  L-  •*.  694. 

117;  Creed  v.  Sun  Fire  Office,  101  Ala.  522,  The  representatirai  in  an  application  that 

23  L.R.A.  177,  46  Am.  St.  Rep.  134,  14  80.  an  applicant  has  not  been  attended  by  a 

823;   Grattan  v.  Metropolitan  L.  Ina.  Co.  physician,  nor  has  consulted  one  previoualy, 

92  N.  Y.  28S,  44  Am,  Rep.  372.  ia  not  folae,  if  the  applicant  merely  omits 

The  refutation  of  the  ides  that  the  bind-  to  state   a   treatment   for   aome  temporary 

ing  force  of  the  knowledge  of  the  agent  Is  ind  is  position. 

based  upon  the  presumption  that  the  agent  Blumenthal  v.  Berkahlre  L,  Ina.  Co.  134 

will  communicate  knowledge  which  he  has  Mich.  216,  104  Am.  St.  Rep.  604,  96  N.  W. 

gained  to  the  principal  runa  through  sev-  17. 

eral   decisions    of    this   court,    which    hold  Mere    earelesanesa    or    negligence   cannot 

that  when   the   applicant  communicates  to  have    the    effect,    in    insurance    representa- 

the  agent  tacts  which  would  prevent  the  in-  tions,  of  fraud. 

surer  from  accepting  the  risk,  but  the  agent  Penn  Mut  h,  Ins.  Co.  t.  Mecbanlea'  Sav. 

oonatmea  such  facte.  Bad  inserts  bis  con-  Bank  t  T.  Co.  38  UUl.  TO,  IB  C.  C.  A. 

stmction    in    the    policy,    the    insurer    is  316,  43  U.  S.  App.  TO,  73  Fed.  604. 

Union  Mut  L.  Ins.  Co.  t.  Wilkinson,  13  Mr.  Justice  HcReynalds  delivered  tlie 

WaQ.  222,  20  L.  ed.  617;  Amerioan  L.  Ins.  opinion  of  the  eourti 

Co.  T.  Mahone,  21  Wall.  1G2,  £2  Lk  ed.  003;  Bespondsats  sued  to  reeover  upon  four 

•  0  L.  ed.  ISOT 


614-617 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cot.  Tkbm, 


policies,  not  different  except  as  to  numbers, 
for  $7,662  each,  and  dated  December  16, 
1908,  on  the  life  of  their  tesUtor,  Wiggins, 
who  died  March  26,  1910.  By  various  pleas 
the  insurance  company  set  up  that  applica- 
tion upon  which  policies  were  based  con- 
tained material  representations  both  false 
and  fraudulent.  In  reply  the  executors  de- 
nied truth  of  each  plea,  and  also  alleged 
that  if  application  [615]  contained  any 
misrepresentations,  the  actual  circum- 
stances were  known  to  company  when  poli- 
cies issued. 

Two  separate  application  blanks,  each 
plainly  printed  upon  a  large,  single  sheet, 
were  filled  out  and  presented.  They  are 
substantially  identical  except  medical  ex- 
aminer's report  upon  one,  dated  December 
16,  1908,  is  signed  by  Geo.  C.  Kilpatrick, 
M.  D.,  in  two  places,  while  the  other,  dated 
December  16,  1908,  is  twice  signed  by  J.  S. 
TurberviUe,  M.  D.  (Under  the  company's 
rules,  where  insurance  applied  for  amounted 
to  $30,000,  two  medical  examinations  were 
required. ) 

At  the  top  of  each  sheet  the  following 
appears:  "THIS  APPLICATION  made  to 
the  Mutual  Life  Insurance  Company  of 
New  York  is  the  basis  and  a  part  of  a 
proposed  contract  of  insurance,  subject  to 
the  charter  of  the  company  and  the  laws 
of  the  state  of  New  York.  I  hereby  agree 
that  all  the  following  statements  and  an- 
swers, and  all  those  that  I  make  to  the 
company's  medical  examiner,  in  continua- 
tion of  this  application,  are  by  me  war- 
ranted to  be  true,  and  are  offered  to  the 
company  as  a  consideration  of  the  contract, 
which  I  hereby  agree  to  accept,  and  which 
shall  not  take  effect  unless  and  until  the 
first  premium  shall  have  been  paid,  during 
my  continuance  in  good  health,  and  unless 
also  the  policy  shall  have  been  signed  by 
the  president  and  secretary  and  counter- 
signed by  the  registrar  of  the  company  and 
issued  during  my  continuance  in  good 
health;  unless  a  binding  receipt  has  been 
issued  as  hereinafter  provided." 

Immediately  thereafter  are  statements 
concerning  assured's  address,  occupation, 
birth,  character  of  policy  desired,  etc.,  and 
finally  this,  alleged  and  shown  to  be  un- 
true: "22.  I  have  never  made  an  applica- 
tion for  life  insurance  to  any  company  or 
association  upon  which  a  policy  has  not 
been  issued  on  the  plan  and  premium  rate 
originally  applied  for,  except  as  to  the  fol- 
lowing companies  or  associations:  None, 
and  no  such  application  [616]  is  now  pend- 
ing or  awaiting  decision."  And  this  part 
of  the  paper  concludes: 
1208 


Dated  at  Pine  Barren,  Fla.  Dec  15,  1908. 

Signature      of      person  1 
whose  life  is  proposed  V  Cilbey  L.  Wiggins 
for  insurance,  J 

I  have  known  the  above  named  applicant 
for  six  years  and  saw  him  sign  this  applica- 
tion.   I  have  issued  binding  receipt  No.  — 

J.  D.  Torrey,  Soliciting  Agent, 
[by  rubber  stamp] 
J.  D.  Torrey,  Manager, 
Mobile,  Ala. 

On  lower  portion  of  the  same  page,  undw 
caption,  "Medical  Examiner's  Report,"  are 
sundry  statements,  ostensibly  by  applicant, 
concerning  his  health  history,  etc., — among 
them  the  following,  alleged  and  ahown  to 
be  untrue: 

"3.  (a)  What  illnesses,  diseases,  or  acci- 
dents have  you  had  since  childhood?  Pneu- 
monia. Number  of  attacks:  One.  Date 
of  each:  1899.  Duration:  Thirty  days. 
Severity:  Not  severe.  Results:  Com- 
plete recoviery. 

"4.  State  every  physician  whom  you  have 
consulted  in  the  past  five  years.     None." 

"8.  Have  you  undergone  any  surgical 
operation  ?     No." 

"13.  (a)  Have  you  ever  been  under  treat- 
ment at  any  asylum,  cure,  hospital,  or  sani- 
tarium.   No." 

"16.  Have  you  ever  been  examined  for  a 
policy  in  any  company  or  association  which 
was  not  issued  as  applied  for?    No." 

This  division  ends  thus: 


Dated  at  Pine  Bar- 
ren, State  of  Flori- 
da the  15  day  of 
December  1908 

Witness : 
Geo.   C.    Kilpatrick, 

M.  D. 


I  certify  that  my 
answers  to  the  fore- 
going questions  are 
correctly  recorded  by 
the  Medical  Exami- 
ner. 

Cilbey  L.  Wiggins 
Signature  of  person 
examined. 

[617]  At  the  top  of  reverse  page,  under 
"Medical  Examiner's  Report  (Continued),*^ 
there  are  many  answers  purporting  to  be 
replies  to  inquiries  propounded  by  medical 
examiner  concerning  applicant's  figure,  ap- 
parent age,  measurements,  pulse,  results  of 
physical  examination  and  personal  investi- 
gations, etc.    And  then  the  following: 

I  certify  that  I 
have  made  this  ex- 
amination at  Pine 
Barren,  Fla.,  on 
this  15  day  of  De- 
cember, 1908,  and 
that  the  foregoing 
questions  have  been 
put,  and  the  an- 
swers of  the  appli- 
cant recorded  as 
stated. 

241  V.  6» 


Geo.  C.   Kilpatrick^ 

M.  D. 
Medical  Examiner. 


1915. 


MUTUAL  L.  INS.  CO.  y.  HILTON^REEN. 


617-620 


The  four  policies,  after  being  signed  in 
New  York  by  the  president,  secretary,  and 
registrar  of  the  company,  were  delivered  to 
assured  in  Florida.  Among  others,  they 
contain  these  clauses: 

'This  policy  and  the  application  herefor, 
copy  of  wliich  is  indorsed  hereon  or  at- 
tached hereto,  constitutes  the  entire  con- 
tract between  the  parties  hereto.  All  state- 
ments made  by  the  insured  shall,  in  the 
absence  of  fraud,  be  deemed  representations, 
and  not  warranties,  and  no  such  statement 
of  the  insured  shall  avoid  or  be  used  in 
defense  to  a  claim  under  this  policy  un- 
less contained  in  the  written  application 
herefor,  a  copy  of  which  is  indorsed  hereon 
or  attached  hereto.''  "Agents  are  not  au- 
thorized to  modify  this  policy  or  to  extend 
the  time  for  paying  a  premium." 

During  summer  of  1907  assured  suffered 
serious  pains  in  his  head,  and,  after  con- 
sulting more  than  one  physician,  went  to  a 
sanitarium  at  Montgomery,  Alabama,  and 
was  there  operated  on  for  a  cystic  enlarge- 
ment of  the  lower  jaw  caused  by  an  im- 
pacted wisdom  tooth.  He  was  confined  to 
the  sanitarium  for  ten  days  and  remained 
under  [618]  immediate  care  of  a  physician 
from  July  16th  to  August  13th,  1907. 

Early  in  November,  1908,  he  applied  to 
Prudential  Insurance  Company  of  America 
through  J.  C.  Hogue,  a  special  agent  operat- 
ing under  J.  R.  Tapia,  its  manager  at  Mo- 
bile, Alabama,  for  insurance  amounting  to 
$40,000.  The  application  was  accompanied, 
according  to  its  requirements,  by  two  medi- 
cal reports  dated  November  3d  and  4th, 
signed  respectively  by  Dr.  J.  C.  McLeod 
and  Dr.  Geo.  C.  Kilpatrick.  Several  weeks 
later  the  company  indicated  unwillingness 
to  accept  risk  because  of  location,  but  the 
application,  although  marked  "withdrawn," 
was  retained.  At  this  time  Wiggins  had 
$30,000  insurance  with  the  Prudential,  $20,- 
000  with  the  Equitable,  and  $5,000  with 
fraternal  insurance  companies. 

The  application  of  petitioner  now  under 
consideration  resulted  from  earnest  and 
persistent  solicitation  by  the  same  J.  C. 
Hogue.  The  circumstances  under  which 
papers  were  prepared  and  signed  are  not 
entirely  clear;  but  it  appears  without  con- 
tradiction that  they  were  not  signed  by 
assured  in  Torrey's  presence — there  was  no 
personal  acquaintance  between  the  two  men. 
Also  that  neither  medical  report  was  signed 
by  assured  in  presence  of  Dr.  Geo.  C.  Kil- 
patrick or  Dr.  J.  8.  Turberville;  and  that 
neither  physician  made  the  personal  exami- 
nation certified  by  him.  The  physicians 
fiUed  the  blanks  and  signed  their  names  at 
Hogue's  request  and  because  of  his  repre- 
sentations. Through  Torrey,  petitioner's 
district  manager  at  Mobile,  the  applica- 
60  li.  ed. 


tion  was  forwarded  to  New  York,  and,  rely- 
ing upon  its  statements,  officers  there  issued 
policies  and  sent  them  to  assured  with 
copies  of  application  papers  which,  by  refer- 
ence, were  incorporated  therein.  So  far  as 
appears,  assured  accepted  them  without  ob- 
jection and  paid  the  premiums. 

An  effort  was  made  to  show  that  facts 
concerning  Wiggins's  medical  history,  for- 
mer unsuccessful  application  to  [619]  Pru- 
dential, and  circumstances  surroimding 
transactions  now  in  question,  were  known 
by  Hogue,  the  medical  examiners,  or  Tor- 
rey,  each  of  whom,  it  is  claimed,  was  peti- 
tioner's agent. 

Assured  was  sixty-one  years  of  age,  presi- 
dent of  a  lumber  company,  apparently  a 
man  of  considerable  wealth,  and  experienced 
in  insurance  matters. 

At  conclusion  of  evidence,  counsel  for  in- 
surance company  asked  a  directed  verdict. 
This  was  refused;  and  the  court  in  effect 
instructed  the  jury:  That  in  order  for 
company  successfully  to  defend  upon  ground 
of  false  statements,  these  must  have  been 
material,  and  made  by  Wiggins  with  knowl- 
edge of  their  falsity,  and  with  a  fraudulent 
purpose, — that  is,  with  intent  to  deceive. 
That  if  they  believed  it  knew  of  their 
falsity  when  application  was  accepted,  no 
defense  could  be  based  upon  them.  That 
it  knew  the  actual  facts  if  the  jury  "should 
find  that  an  agent  whose  knowledge  would 
be  the  knowledge  of  the  defendant  did  so 
know."  But  if  the  jury  found  that  falsity 
of  statements  was  within  knowledge  of 
Hogue  and  Torrey  and  medical  examiners, 
and  further  found  an  understanding,  tacit 
or  express,  between  Wigg)ns  and  said  agents 
to  procure  the  policies  by  collusive  co-opera- 
tion to  conceal  the  truth,  there  could  be 
no  recovery.  Excerpts  which  follow  fairly 
indicate  general  import  of  charge: 

"The  contract  of  insurance  in  this  case 
as  expressed  by  the  policies,  embraces  the 
statements  and  representations  of  Wiggins, 
the  deceased,  made  to  the  agent,  Hogue,  or 
to  Kilpatridc,  or  Turberville,  the  medical 
examiners.  Such  statements  were  required 
to  be  truthfully  made,  and  was  a  condi- 
tion for  the  issuance  of  the  contract,  and 
this  contract  provides  that  all  statements 
made  by  the  insured  shall,  in  the  absence 
of  fraud,  be  deemed  representations,  and 
not  warranties.  Whether  the  representations 
made  by  Wiggins  in  his  application  for  in- 
surance had  been  rejected;  or  whether  he 
had  been  treated  in  a  cure,  sanitarium, 
[680]  or  hospital;  or  whether  he  had  un- 
dergone a  surgical  operation;  or  whether 
he  had  had  any  illness  or  disease;  or 
whether  he  had  consulted  a  physician  for 
his  health,  to  serve  as  a  defense  by  the  com- 
pany to  this  action,  depends  on  «!—*»•-»'• 


620-622 


SUPREBIB  COURT  OF  THS  UNITED  STATES. 


Oct.  Tbm, 


sueh  statements  were  knowingly  false  and 
fraadulently  made. 

"If  Wiggins  knew  they  were  false,  and 
that  he  made  them  with  the  fraudulent  purr 
pose  of  obtaining  the  policy  of  insurance, 
then  such  statements  would  avoid  the  policy 
and  would  serve  as  a  good  defense  by  the 
company;  provided,  that  the  company,  at 
the  time  it  accepted  the  application  of  the 
deceased  as  an  insurance  risk,  had  no  knowl- 
edge of  the  falsity  of  the  statements  and 
representations  made  by  Wiggins  in  his  ap- 
plication for  insurance. 

"The  knowledge  of  the  agent  of  the  in- 
surance company  would  be  the  knowledge 
of  the  company,  and  if  the  agent  represent- 
ing the  company  in  taking  the  application, 
or  the  statements  oi  the  medical  examiners 
had  knowledge  of  the  falsity  of  the  state 
ments,  then  the  insurance  company  would 
be  estopped  from  setting  up  such  false 
statements  or  misrepresentations  of  which 
they  had  knowledge  before  the  issuance  of 
the  policy,  as  a  defense  to  this  action. 


"If  you  find  from  the  evidence  that  the 
statements  of  Wiggins  in  the  several  mat- 
ters inquired  about  his  health  and  opera- 
tion and  treatment  in  a  sanitarium  were 
false,  and  further  find  th'^t  the  agents 
Hogue,  and  Torrey  and  Turberville  knew 
they  were  false,  and  you  further  find  from 
the  evidence  that  there  was  an  understand- 
ing, tacit  or  expressed,  between  Wiggins  and 
the  said  agents  to  procure  the  policies  by 
collusive  co-operation  to  conceal  the  truth 
from  the  company  as  to  the  several  mat- 
ters inquired  about,  then  such  conduct  upon 
the  part  of  Wiggins  would  avoid  the  poli- 
cies, and  the  plaintiffs  could  not  recover  in 
this  action." 

Petitioner  made  timely  objections  and 
presented  special  [621]  requests,  setting 
forth  its  theory,  which  were  denied.  The 
circuit  court  of  appeals  affirmed  a  judg- 
ment upon  verdict  for  respondents.  Among 
other  things  it  said  (127  C.  0.  A.  467,  470, 
471,  211  Fed.  31,  34,  35) : 

"That,  under  the  language  of  the  policies 
involved  in  this  suit,  the  defendant,  to 
avoid  the  policies  for  false  representations, 
must  establish  their  falsity,  materiality, 
and  the  knowledge  of  the  insured,  actual  or 
imputed,  of  their  falsity. 


"This  leaves  for  consideration  the  repre- 
sentation oi  Uie  insured  that  he  had  been 
examined  by  Dr.  Turberville,  defendant's 
medical  examiner,  and  that  the  answers  re- 
corded by  the  medical  examiner  in  his  re- 
port were  correct.  In  truth,  there  was  no 
such  examination  had,  and  the  insured  must 
have  known  that  there 'was  none,  and  the 
representation  that  there  had  been  one  was '  ual." 
1210 


a  material  one.    So  with  r^^rd  to  the  rep- 
resentation of  the  insured  that  there  had 
been  no  previous  application  for  insurance 
made  by  him  and  rejected,  or  not  passed 
upon  favorably  by  the  insurance  companj. 
liiifl  was  untrue,  must  have  been  known  to 
have  been  untrue  by  the  insured  when  be 
made  it,  and  it  was  material.     Either  of 
these  two  last  representations  would  be  suf- 
ficient to  avoid  the  policies,  unless  the. de- 
fendant is  estopped  to  rely  upon  them,  bj 
reason  of  its  knowledge  of  their  falsity.    It 
had  such  knowledge,  if  at  all,  because  of 
the  knowledge  of  its  agents  and  examiners, 
who  handled  the  matter  for  it/' 
And  further  (p.  37) :   "The  statute  [§  2765. 
General    Statutes    of    Florida — copied    in 
iiiuurgin]   prescribes  that  every  [622]   per- 
son who  receives  money  for  an  insurance 
company  in  payment  of  a  contract  of  insur- 
ance, or  who  directly  or  indirectly  causes  to 
be  made  any  contract  of  insurance,  shall  be 
deemed  to  all  intents  and  purposes  an  agent 
or  representative  of  sueh  company.     Under 
this  description,  we  think  Torrey,  the  de- 
fendant's    Mobile  .  manager,     H^gue,     the 
soliciting  agent,  and  the  two  medical  ex- 
aminers, were  agents  of  the  defendant  to 
all  intents  and  purposes,  and  so,  for  the 
purpose  of  charging  it  with  notice  of  what 
they  know,  when  the  policies  were  written." 
All  parties  treat  the  policies  as  Florida 
ooutracts.    The  medical  examiners'  reports 
are  plainly  integral  parts  of  application, 
and  by  apt  words  the  latter  became  an  es- 
sential constituent  of  the  policies. 

Considered  in  most  favorable  light  pos- 
sible, the  above  quoted  incorrect  statements 
in  the  implication  are  nuiterial  representa- 
tions; and,  nothing  else  appearing,  if  known 
to  be  untrue  by  assured  when  m|uie,  in- 
validate the  4>olicy  without  further  proof  of 
actual  conscious  design  to  defraud.  Moulor 
V.  American  L.  Ins.  Ck>.  Ill  U.  S.  335,  345, 
28  L.  ed.  447,  450,  4  Sup.  Ct.  Rep.  466; 

"2765.  Agents. — ^Any  person  or  firm  in 
this  state,  who  receives  or  receipts  for  any 
money  on  account  of  or  for  any  contract 
of  insurance  made  by  him  or  them,  or  for 
such  insurance  company,  association,  firm 
or  individual,  aforesaid,  or  who  receives  or 
receipts  for  money  from  other  persons  to 
be  transmitted  to  anv  such  company,  asso- 
ciation, firm  or  individual,  aforesaid,  for 
a  policy  of  insurance,  or  any  renewal  there- 
of, although  such  policy  of  insurance  is  not 
signed  by  him  or  them,  as  agent  or  repre- 
sentative of  such  company,  asioeiatioii»  nrm 
or  individual,  or  who  in  any  wise  directly 
or  indirectly  makes  or  causes  to  be  made, 
any  contract  of  insurance  for  or  on  account 
of  such  insurance  company,  association,  firm 
or  individual,  shall  be  deemed  to  all  intents 
and  purposes  an  agent  or  representative  of 
such  company,  association,  firm,  or  Individ* 


241  V.  8. 


1916. 


HOLMES  T.  CONWAY. 


622-024 


Phoenix  Mut.  L.  Int.  Co.  t.  Raddin,  120  U. 
S.  183,  189,  30  L.  ed.  644,  046,  7  Sup.  Ct 
Rep.  500;  Altna  L.  Ins.  Co.  ▼.  Moore,  231 
U.  S.  643,  666,  567,  68  L.  ed.  356,  866,  366, 
34  Sup.  Ct.  Rep.  186;  May,  las.  4th  ed. 
i  181. 

The  general  rule  which  imputes  an  agent's 
knowledge  to  the  principal  is  well  estab- 
lished. The  underlying  reason  for  it  is  that 
an  innocent  third  party  may  properly  pre- 
sume the  agent  will  perform  his  duty  and 
report  all  facts  which  affect  the  principal's 
interest.  But  this  general  rule  does  not 
apply  when  the  third  party  knows  [623] 
there  is  no  foundation  for  the  ordinary  pre- 
sumption,— ^when  he  is  acquainted  with  cir- 
cumstances plainly  indicating  that  the 
agent  will  not  advise  his  prindpaL  The 
rule  is  intended  to  protect  those  who  exer- 
cise good  faith,  and  not  as  a  shield  for  un- 
fair dealing.  Distaied  Spirits  (Harring- 
ton V.  United  States)  11  Wall.  366,  367,  20 
L.  ed.  167,  171;  American  Surety  Co.  y. 
Pauly,  170  U.  S.  133,  156,  42  L.  ed.  977, 
986,  18  Sup.  Ct.  Rep.  662;  American  Nat. 
Bank  v.  Miller,  229  U.  S.  617,  621,  622,  67 
L.  ed.  1310,  1312,  1313,  33  Sup.  Ct.  Rep. 
883;  Mechem,  Agency,  2d  ed.  §  1816. 

Section  2766  6f  the  Florida  statutes,  su- 
pra, undertakes  to  designate  as  agents  cer- 
tain persons  who  in  fact  act  for  an  insur- 
ance company  in  some  particular;  but  it 
does  not  fix  the  scope  of  their  authority  as 
between  the  company  and  third  persons,  and 
certainly  does  not  raise  special  agents,  with 
limited  authority,  into  general  ones,  pos- 
sessing unlimited  power.  We  assume  Hogue, 
Torrey,  and  the  medical  examiners  were  in 
fact  designated  agents  of  the  company,  with 
power  to  bind  it  within  their  apparent  au- 
thority; and  in  such  circumstances  the 
statute  does  not  affect  their  true  relation- 
ship to  the  parties.  See  Continental  L.  Ins. 
Co.  T.  Chamberlain,  132  U.  S.  304,  310,  33 
L.  ed.  341,  343,  10  Sup.  Ct.  Rep.  87;  New 
York  L.  Ins.  Co.  y.  Russell,  23  C.  C.  A. 
43,  40  U.  S.  App.  630,  77  Fed.  94,  103; 
Wood  y.  Firemen's  F.  Ins.  Co.  126  Mass. 
316,  319;  John  R.  Davis  Lumber  Co.  y. 
Hartford  F.  Ins.  Co.  96  Wis.  226,  234,  285, 
37  L.R.A,  131,  70  N.  W.  84. 

The  assured  at  the  least  consciously  per- 
mitted an  application  containing  material 
misrepresentations  to  be  presented  by  sub- 
ordinate agents  to  officers  of  the  insurance 
company  under  circumstances  which  he 
knew  negatived  any  probability  that  the 
actual  facts  would  be  revealed;  and  later 
he  accepted  policies  which  he  must  have 
imderstood  were  issued  in  reliance  upon 
statements  both  false  and  material.  He 
could  claim  nothing  because  of  such  In- 
formation in  the  keeping  of  unfaithful  sub- 
ordinates. Moreover,  the  false  representa- 
60  14.  ed. 


I  tions  aeoompanied  and  were  ewential  parts 
j  of  tiM  policies  finally  accepted.  He  did  not 
repudiate,  and  therefore  adopted  and  ap- 
proved, the  [684]  representations  upon 
which  they  were  based.  Beyond  doubt  an 
applicant  for  insurance  should  exercise 
toward  the  company  the  same  good  faith 
which  may  be  rightly  demanded  of  it.  The 
relationship  demands  fair  dealing  by  both 
parties.  New  York  L.  Ins.  Co.  v.  Fletcher, 
117  U.  S.  619,  629,  633,  634,  29  L.  ed.  934, 
939,  940,  6  Sup.  Ct.  Rep.  837;  Northern 
Assur.  Co.  v.  Grand  View  Bldg.  Asso.  183 
U.  S.  308,  361,  46  L.  ed.  213,  234,  22  Sup. 
Ct.  Rep.  133;  United  States  L.  Ins.  Co.  v. 
Smith,  34  C.  C.  A.  606,  92  Fed.  603. 

Considered  with  proper  understanding  of 
the  law,  there  Is  no  evidence  to  support  a 
verdict  against  petitioner,  and  the  trial 
court  should  have  directed  one  in  its  favor. 

Judgment  of  the  Circuit  Court  of  Ap- 
peals is  reversed  and  the  cause  remanded 
to  the  United  States  District  Court,  North- 
ern District  of  Florida,  for  further  proceed- 
ings in  accordance  with  this  opinion. 

Reversed. 

Mr.  Justice  Pitney  dissents. 


8.  C.  HOLMES,  Plff.  in  Err., 
v. 

E.  S.  CONWAY. 

(See  S.^  0.  Reporter's  ed.  624-632.) 

Constitutional  law  ^  due  process  of  law 
—  summary  proceeding  ^  notice  and 
hearing. 

The  attorney  for  the  mortgagee,  and 
later  for  the  transferee  of  the  certificate  of 
purchase  under  a  sale  on  foreclosure,  can- 
not be  said  to  have  been  deprived  of  his 
property  without  adequate  notice  or  fair 
opportunity  to  defend,  contrary  to  U.  S. 
Const.,  14th  Amend.,  by  a  summary  order 
directing  him  to  restore  to  the  treasury  of 
the  court  the  proceeds  of  fire  insurance  poll- 

NoTB. — ^As  to  what  constitutes  due 
process  of  law,  generally — see  notes  to 
People  v.  O'Brien,  2  LJLA.  266;  Kunts  v. 
Sumption,  2  L.bLA.  655;  Re  Qannon,  6 
L.ILA.  359;  Ulman  v.  Baltimore,  11  UELA. 
224;  Oilman  v.  Tucker,  13  Ii.ILA.  304; 
Pearson  v.  Yewdall,  24  L.  ed.  U.  S.  436,  and 
Wilson  V.  North  Carolina,  42  L.  ed.  U.  S. 
866. 

On  notice  and  hearing  required  generally 
to  constitute  due  process  of  iaiR^— see  notes 
to  Kunts  V.  SumpUon,  2  L.RJL  667; 
Chauvin  v.  Valiton,  3  L.RJL  194,  and 
Ulman  v.  Baltimore,  11  LJELA.  226. 

On  notice  of  proceedings  after  jurisdic- 
tion has  attached  as  condition  of  due 
process  of  law — see  note  to  Griggi  r.  Han- 
son, 62  L.RJL(N.S.)   1161. 


626,  627 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tebm, 


cies  on  the  mortgaged  property  which  he 
had  withdrawn  and  applied  on  a  personal 
judgment  against  the  mortgagor,  instead  of 
applying  them  towards  redeeming  the  prop- 
erty from  the  sale,  in  accordance  with  what 
the  court  found  was  the  agreement  between 
him  and  the  counsel  for  the  mortgagor, 
where  he  was  accorded  two  hearings,  six 
months  apart,  was  present  at  every  stage 
of  the  proceedings,  failed  to  suggest  sur- 

Srise  or  prejudice  because  no  formal  notice 
ad  been  served  on  him,  or  any  desire  for 
further  hearing,  and  was  perfectly  acquaint- 
ed with  all  the  unusual  circumstances. 
[For  other  cases,  see  Constitutional  Law,  696- 
724,  in  Digest  Sup.  Ct.  1008.] 

[No.  335.] 

Argued  May   1,   1916.     Decided  June   12, 

1916. 

IN  ERROR  to  the  Supreme  Court  of  the 
State  of  Kansas  to  review  a  judgment 
which  affirmed  a  summary  order  of  the  Dis- 
trict Court  of  Woodson  Coimty,  in  that 
state,  directing  an  attorney  to  restore  to 
the  treasury  of  the  court  moneys  which  it 
found  that  he  had  diverted.    Affirmed. 

See  same  case  below,  92  Kan.  787,  L.R.A. 
— ,  — ,  142  Pac.  263;  on  rehearing,  93  Kan. 
246,  L.R.A.— ,  — ,  144  Pac.  205. 

The  facts  are  stated  in  the  opinion. 

Mr.  Leonard  S.  Ferry  argued  the  cause, 
and,  with  Messrs.  Thomas  F.  Doran  and 
John  S.  Dean,  filed  a  brief  for  plaintiff  in 
error : 

The  supreme  court  of  Kansas  aprmed  the 
judgment  of  the  district  'court  on  the 
ground .  that  summary  proceedings  may  be 
employed  in  ^iforcing  claims  against  at- 
torneys for  acts  done  in  a  professional 
capacity.  Summary  proceedings  must  be 
based  upon  notice,  and  the  party  must  be 
apprised  of  the  nature  and  purpose  of  the 
proceedings,  and  have  an  opportunity  to  be 
heard. 

37  Cyc.  630;  4  Cyc.  976;  Ex  parte  Wall, 
107  U.  S.  265,  27  L.  ed.  662,  2  Sup.  Ct 
Rep.  669;  Jeffries  v.  Laurie,  23  Fed.  786; 
Lynde  v.  Lynde,  64  N.  J.  Eq.  736,  97  Am. 
St.  Rep.  692,  68  L.RJI.  471,  52  Atl. 
694;  Galpin  v.  Page,  18  Wall.  368,  21 
L.  ed.  963;  Union  Bldg.  &  Sav.  Asso. 
V.  Soderquist,  116  Iowa,  696,  87  N.  W. 
433;  Simon  v.  Craft,  182  U.  S.  427,  45 
L.  ed.  1166,  21  Sup.  Ct.  Rep.  836;  Rees 
V.  Watertown,  19  Wall.  107,  122,  123, 
22  L.  ed.  72,  76,  77;  Iowa  C.  R.  Co.  y. 
Iowa,  160  U.  S.  389,  40  L.  ed.  467,  16  Sup. 
Ct.  Rep.  344;  Davis  v.  St.  Louis  County, 
66  Minn.  310,  33  L.R.A.  432,  60  Am.  St. 
Rep.  476,  67  N.  W.  997;  Kuntz  v.  Sumption, 
2  L.R.A.  666,  and  note  117  Ind.  1,  19  N.  E. 
474;  Davidson  v.  New  Orleans,  96  U.  S.  97, 
24  L.  ed.  616;  3  Words  &  Phrases,  pp. 
1212 


2244,  2246;  Hooker  v.  Los  Angeles,  188  U. 
S.  318,  47  L.  ed.  491,  63  L.R.A.  471,  23  Sup. 
Ct.  Rep.  396. 

The  judgment  affirmed  by  the  supreme 
court  of  Kansas  was  rendered  against  S. 
C.  Holmes  without  due  process  of  law,  as 
required  by  the  14th  Amendment  of  the 
Constitution  of  the  United  States,  as  no 
notice  was  given  him,  and  no  adequate  op- 
portunity to  defend  was  afforded  him. 

Louisville  &  N.  R.  Co.  v.  Schmidt,  177  U. 
S.  230,  44  L.  ed.  747,  20  Sup.  Ct.  Rep.  620; 
Simon  v.  Craft,  182  U.  S.  427,  45  L.  ed. 
1165,  21  Sup.  Ct.  Rep.  836;  Davis  v.  St. 
Louis  County,  66  Minn.  310,  33  L.R.A.  432, 
60  Am.  St.  Rep.  476,  67  N.  W.  997;  Kunts 
V.  Sumption,  2  L.R.A.  655,  and  note  117 
Ind.  1,  19  N.  E.  474;  Hooker  v.  Los  Ange- 
les, 188  U.  S.  318,  47  L.  ed.  491.  63  L.R.A. 
471,  23  Sup.  Ct.  Rep.  396. 

A  man's  business,  occupation,  profession, 
or  calling  is  his  property,  and  is  protected 
and  guaranteed  by  the  Constitution  of  the 
United  States. 

Slaughter-House  Cases,  16  Wall.  36,  21  L. 
ed.  394;  Consolidated  Steel  &,  Wire  Co.  v. 
Murray,  80  Fed.  821;  Ex  parte  Burr,  9 
Wheat.  529,  6  L.  ed.  152. 

No  counsel  appeared  for  defendant  in 
error. 

Mr.  Justice  McReynolds  delivered  the 
opinion  of  the  court: 

Plaintiff  in  error,  Holmes,  a  lawyer  prac- 
tising before  the  courts  of  Kansas,  main- 
tains that  judgment  has  been  rendered 
against  him,  in  a  cause  where  he  appeared 
as  counsel,  without  notice  or  opportunity 
to  defend,  contrary  to  inhibitions  of  the 
14th  Amendment. 

Acting  for  one  Hess,  he  instituted  pro- 
ceedings against  defendant  in  error  in  the 
district  court,  Woodson  county,  Kansas, 
seeking  personal  judgment  on  a  note  and 
foreclosure  of  mortgage  on  real  estate. 
Judgment  was  rendered  November  16,  1910, 
for  $2,612;  and  the  sheriff  sold  the  land 
January  19,  1911,  to  Hess,  for  $1,700,  sub- 
ject to  redemption  within  eighteen  months. 
An  assignment  prepared  by  Holmes  imme- 
diately transferred  the  certificate  of  pur- 
chase to  C.  F.  Harder,  but  no  public  record 
of  this  transaction  was  made  until  August 
24,  1912. 

An  insured  building  on  the  mortgaged 
property  burned  shortly  before  sheriff's 
sale,  and,  upon  motion  presented  by  Holmes, 
the  court  made  an  order  "restraining  and 
enjoining  the  said  defendant  Conway  from 
in  any  manner  disposing  of  said  insurance 
policies  upon  the  buildings  on  said  mort- 
gaged premises,  or  disposing  of  any  moneys 
[687]  collected."  Questions  arose  oonoeni- 
ing  validity  of  polidea,  and,  following  aa 

241  U.  8. 


1915. 


HOLMES  V.  CONWAY. 


327-«29 


agreement  between  Holmes  and  Hogueland, 
attorney  for  Conway,  a  compromise  was  ef- 
fected under  which  the  companies  paid 
^1,076,— $500,  February  — ,  1911,  and  $575, 
March  — ,  1911.  Conway  and  his  attorney 
claimed  that,  under  the  agreement,  this  sum 
was  to  be  applied  towards  redeeming  the 
land.  Holmes  claimed  it  was  to  go  towards 
discharging  the  personal  judgment. 

On  February  24,  1911,  $500  of  the  insur- 
ance money  was  paid  into  court  by  Hogue- 
land.  Tlie  clerk  gave  a  receipt  reciting, 
"the  same  being  in  part  payment  of  the  re- 
demption in  the  above-entitled  cause."  On 
the  next  day  this  sum  was  withdrawn  by 
Holmes,  and,  as  he  claims,  remitted  to  Hess. 
On  March  31,  1911,  Hogueland  delivered  a 
draft  for  remainder  of  insurance  money  to 
Holmes,  who  claims  that  he  remitted  pro- 
xieeds  to  Hess.  Conway  paid  into  court 
$738.03,  July  15,  1912,  which,  with  the 
$1,075  above  referred  to,  made  up  amount 
necessary  to  redeem  property  sold  by  sheriff, 
and  the  clerk  gave  him  a  redemption  receipt. 

Exactly  when  Holmes  began  to  represent 
Harder  is  not  clear. — certainly  it  was  not 
later  than  June  1,  1911.  In  August,  1912, 
Holmes,  as  counsel,  entered  a  motion  for 
an  order  directing  the  sheriff  to  convey  to 
Harder  the  land  theretofore  sold.  Conway 
resisted,  claiming  that,  by  paying  the  nec- 
essary sum,  he  had  redeemed  the  property. 
Solution  of  the  issue  presented  depended 
upon  professional  conduct  of  Holmes,  and 
his  affidavits  were  put  in  evidence.  The 
motion  was  denied;  but  a  rehearing  was 
granted  and  took  place  in  February,  1913. 
Additional  proofs,  including  two  more  of 
his  own  affidavits,  were  offered  by  Holmes, 
then  present  in  court,  and  taken  under  con- 
sideration. April  30,  1913,  Holmes  still 
being  present,  the  court  denied  motion  for 
instruction  to  sheriff,  and  further  "ordered, 
adjudged  and  decreed,  that  the  plaintiff,  A. 
£.  [628]  Hess,  and  S.  C.  HoUnes,  his  attor- 
ney of  record,  within  thirty  days  from  this 
date,  .  .  .  return  to  and  deposit  in  the 
office  of  the  clerk  of  this  court,  the  sum  of 
One  Thousand  and  Seventy-five  ($1,075) 
Dollars,  together  with  interest 
down  to  the  day  such  sum  is  paid  into  the 
office  of  the  clerk  of  this  court  .  .  . 
to  be  used  in  the  redemption  and  cancela- 
tion of  certificate  of  purchase  issued  by  the 
sheriff  of  Woodson  county,  Kansas,  to  A.  £. 
Hess,  plaintiff  herein." 

Without  suggesting  to  the  trial  court  that 
he  had  been  surprised  or  prejudiced  because 
no  formal  notice  had  been  served  upon  him, 
or  that  he  wished  the  order  set  aside,  or 
desired  to  present  additional  proof,  or  take 
any  further  action  whatsoever,'  and  when 
the  thirty  days  were  about  to  expire. 
Holmes  entered  appeals  to  the  supreme  court 
$0  li.  ed. 


of  the  state  for  himself  and  Harder;  and 
on  very  general  assignments  of  errors,  mak« 
ing  no  mention  of  Federal  right,  the  con- 
troversy was  there  again  presented  and  con- 
sidered upon  its  merits. 

Among  other  things  the  supreme  court 
said  (92  Kan.  787,  1..RJI.--,  — ,  142  Pac. 
253): 

'*0n  the  eve  of  the  sheriff's  sale.  Holmes 
and  Hogueland,  as  attorneys  for  their  re- 
spective clients,  agreed  that  the  insurance 
money  should  be  applied  to  the  redemption 
of  the  land.  Hess  purchased  at  the  sheriff's 
sale  subject  to  this  condition,  and  when  he 
assigned  the  oertifioate  of  purchase,  he  and 
Holmes  knew  that  the  insurance  money 
would  go  to  redeem  the  land,  and  not  to 
satisfy  the  excess  judgment.  This  is  the 
turning  point  in  the  case.  Mr.  Holmes 
claims  he  understood  the  agreement  with 
Mr.  Hogueland  differently.  After  carefully 
considering  all  the  strong  arguments  for 
his  view,  this  court,  as  already  stated,  feels 
that  the  trial  court  was  best  able  to  deter- 
mine the  matter.  The  result  is  that  Holmes 
could  draw  the  first  payment  of  insurance 
money  from  the  clerk  of  the  court,  who  had 
received  and  receipted  for  it  for  redemption 
[629]  purposes,  for  the  benefit  of  no  one 
but  the  holder  of  the  certificate  of  purchase, 
who  at  that  time  was  Harder;  and  Holmes 
received  the  proceeds  of  the  draft  for  the 
second  instalment  of  insurance  money  for 
the  benefit  of  Harder.  Soon  afterwards. 
Holmes  is  found  in  court,  engaged  in  the 
protection  of  Harder's  interests  as  a  holder 
of  the  certificate  of  purchase.  Holmes  had 
complete  knowledge  of  all  the  facts  relating 
to  the  insurance  money.  Harder's  son  and 
agent,  F.  H.  Harder,  was  informed  that 
Holmes  had  received  $1,075  to  apply  in  re- 
demption of  the  premises,  and  Harder  him- 
self is  noncommittal  on  the  subject  of  his 
knowledge. 

•        •        • 

"On  February  24,  1911,  Conway,  through 
his  attorney,  paid  to  the  clerk  of  the  dis- 
trict court  the  sum  of  $500  as  redemption 
money,  and  took  the  clerk's  receipt  accord- 
ingly. Holmes  could  rightfully  withdraw 
this  money  for  no  purpose  unless  to  pay  it 
to  Harder.  The  draft  for  $575,  which  he 
cashed,  was  redemption  money  also,  and,  if 
not  paid  to  Harder,  ought  to  be  in  the 
hands  of  the  clerk.  It  is  conceded  that 
Harder  received  none  of  the  money.  The 
order,  therefore,  is  a  summary  one,  made 
by  the  court  in  a  pending  proceeding,  to 
secure  restoration  to  the  treasury  of  the 
court  of  moneys  arising  from  the  litigation 
which  the  attorney  has  diverted. 

... 

"In  the  present  case  the  court  was  act?'*'* 
in  its  own  behalf  to  secure  the  retur 


629-682 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tbm^ 


money  belonging  in  its  own  custody.  By 
motion  directed  against  the  sheriff,  filed  for 
his  client.  Harder,  the  attorney  himself  in- 
stituted the  investigation  of  his  professional 
conduct.  That  was  the  only  substantial  is- 
sue in  the  case,  and  he  was  fully  heard, 
both  as  a  witness  and  as  an  attorney,  in 
justification  of  his  course.  The  evidence 
which  justifies  the  denial  of  an  order 
against  the  sheriff  justifies  the  order  against 
him." 

[630]  A  petition  for  rehearing  was  pre- 
sented and  considered  by  the  supreme  court. 
Therein  for  the  first  time  Holmes  set  up  a 
claim  under  the  14th  Amendment.  In  its 
opinion  denying  application,  the  court  said 
(93  Kan.  246,  L.RJl.— -,  — ,  144  Pac.  206)  : 

''Holmes  still  insists  that  the  order  upon 
him  to  restore  to  the  clerk  [of  the  court] 
the  redemption  money  which  came  into  his 
possession  was  irregular  for  informality  of 
procedure.  The  form  of  procedure  in  sum- 
mary disciplinary  proceedings  is  not  con- 
trolling so  long  as  the  essentials  of  fair 
notice  and  opportunity  to  be  heard  are  pres- 
ent. In  this  case  Harder's  right  to  a  deed 
depended  upon  what  his  attorney's  profes- 
sional conduct  had  been.  That  was  the  pri- 
mary issue  tendered  by  the  motion  to  re- 
quire the  sheriff  to  make  a  deed,  and  the 
attorney  himself  filed  the  motion  and 
brought  on  the  investigation.  A  trial  was 
had  in  which  all  the  facts  were  developed, 
Holmes  and  Hogueland  gave  their  versions 
of  the  agreement  with  respect  to  the  applica- 
tion of  the  insurance  money.  The  money 
was  traced,  step  by  step,  from  the  insurance 
company  through  Holmes  to  Hess.  Holmes 
was  necessarily  compelled  to  describe  and 
to  defend  his  conduct,  and  did  so  by  his  own 
testimony  and  by  other  evidence  which  he 
adduced.  The  result  was  that  in  legal  effect 
he  stood  before  the  court  as  one  of  its  of- 
ficers who  had  diverted  from  its  treasury 
funds  arising  from  the  litigation.  Then  the 
attorney  asked  for  another  hearing,  which 
was  granted.  While  on  the  face  of  the  rec- 
ord he  appeared  as  the  attorney  for  Harder, 
the  substance  of  the  issue  still  was  what 
the  character  of  his  professional  conduct 
had  been.  The  nature  of  the  charge  iagainst 
him  had  been  fully  disclosed  at  the  first 
trial.  It  appeared  in  detail  and  in  writing 
in  the  affidavits  filed  in  the  case.  It  was 
that  charge  which  he  knew  he  must  meet 
at  the  second  trial,  which  he  had  secured. 
He  had  from  August  of  one  year  to  Febru- 
ary of  the  next  year  in  which  to  prepare. 
1214 


To  say  that  he  did  not  [681]  make  dne- 
preparaticm  would  be  to  impute  to  him  un- 
faithfulness to  Harder.  He  had  command  of 
the  case,  took  such  testimony  from  his  for^ 
mer  client,  Hess,  as  he  desired,  and  pre> 
sented  such  other  evidence  as  he  desired*  in- 
cluding additional  affidavits  of  his  own. 
At  the  final  trial  he  was  given  full  oppor- 
tunity to  defend  in  his  own  way  and  to  an 
extent  satisfactory  to  himself.  Conse- 
quently every  requirement  of  due  process  of 
law  has  been  satisfied,  and  the  court  was 
not  called  upon  to  go  through  the  ceremon- 
ious performance  of  instituting  and  prose- 
cuting another  proceeding;  for  the  Bake  of 
stating  the  charges,  giving  notice,  and  hav- 
ing a  hearing,  before  entering  the  disci- 
plinary order." 

The  sole  question  presented  for  our  deter- 
mination is  whether  plaintiff  in  error  has 
been  deprived  of  a  Federal  right. 

Ck>nsidering  Holmes's  position  as  an  of- 
ficer of  the  court,  and  patient  hearings  ac- 
corded him,  his  own  testimony,  and  duty  to- 
offer  in  evidence  whatever  was  obtainable 
and  material,  his  actual  presence  at  every 
stage  of  the  proceedings,  his  failure  to  sug- 
gest surprise  or  desire  for  any  further  hear- 
ing, the  inquiry  touching  his  conduct,  pend- 
ing for  many  months,  his  perfect  acquain- 
tance with  all  the  unusual  circumstances,, 
including  his  own  liability,  and  looking  at 
the  substance,  and  not  mere  ^rm,  of  things,^ 
we  are  unable  to  say  that  he  has  been  de- 
prived of  adequate  notice  or  fair  opportunity 
to  defend,  and  thereby  denied  due  process 
of  law.  The  cause  undoubtedly  presents 
difficulties  not  to  be  ignored;  and  our  con- 
clusion is  restricted  to  the  peculiar  circum- 
stances before  us. 

In  Louisville  &  N.  R.  Go.  v.  Schmidt,  177 
U.  S.  230,  236,  44  L.  ed.  747,  750,  20 
Sup.  Ct.  Rep.  620,  the  principles  applica- 
ble here  are  announced  and  applied.  "It 
is  no  longer  open  to  contention  that  the 
due  process  clause  of  the  14th  Amendment 
to  the  Constitution  of  the  United  States 
does  not  control  mere  forms  of  procedure 
in  state  courts,  or  regulate  practice  therein. 
All  its  [632]  requirements  are  complied 
with,  provided  in  the  proceedings  which  are 
claimed  not  to  have  been  due  process  of  law 
the  person  c<mdemned  has  had  sufficient  no- 
tice, and  adequate  opportunity  has  been 
afforded  him  to  defend." 

Affirmed. 


Mr.  Justice  Pitney  dissents. 


241  V.  8. 


MEMORA.3SrDA 


OF 


Cabbs  D18PO8BD  OF  Without  Opikionb. 


[637]  Lbonabd  K.  Coates,  Plaintiff  in  Er- 
ror, V.  District  of  Columbia.  [  No.  166.] 
This  case,  as  reported  in  vol.  241  U.  S. 

p.   637,  has  been  already  reported  herein, 

ante,  p.  479. 


WiixiAic  B.  Thompson,  Plaintiff  in  Error, 
V.  Cnr  OF  St.  Louis.    [No.  167.] 
This  case,  as  reported  in  vol.  241  U.  S. 

p.   637,  has  been  already  reported  herein, 

ante,  p.  480. 


HiLMA  Nelson,  Plaintiff  in  Error,  v.  Rich- 

ABD  6.  Wood.     [No.  168.] 

This  case,  as  reported  in  vol.  241  U.  S. 
p.  637,  has  been  already  reported  herein, 
ante,  p.  480. 


[638]  Vandalia  Railboad  Ck)MPANT,  Plain- 
tiff in  Error,  y.  Charles  Stilwell.    [No. 
172.] 
This  case,  as  reported  in  yol.  241  U.  8. 

p.   638,  has  been  already  reported  herein, 

ante,  p.  480. 


RoBEBT  Kitchens,  Appellant,  v.  J.  C.  Ham- 
ilton, Sheriff,  etc.    [No.  672.] 
This  case,  as  reported  in  vol.  241  U.  8. 

p.  638,  has  been  already  reported  herein, 

ante,  p.  480. 


Fbajtk  R.  Shatpuck,  Trustee,  etc.,  et  al., 
Appellants,  r.  Tttle  Guabantt  &  Subs- 
tt  Oompant.     [No.  729.] 
This  case,  as  reported  in  toI.  241  U.  S. 

p.  638,  has  been  already  reported  herein, 

ante,  p.  480. 

60  li.  ed. 


[630]  Gtbus  Bradley,  Plaintiff  in  Error, 

V.  Spokane  &  Inland  Empire  Railroad 

Company.     [No.  186.] 
Error    to    state    court — ^frivolous    Federal 

question. 

In  Error  to  the  Supreme  Court  of  tlie 
State  of  Washington  to  review  a  judgment 
which  affirmed  a  judgment  of  the  Superior 
Court  of  Spokane  County,  in  that  state,  in 
favor  of  defendant  in  an  action  of  eject- 
ment. 

See  same  case  below,  79  Wash.  455, 
L.R.A.— ,  —,  140  Pac.  688. 

Mr.  William  H.  Smiley  for  plaintiff  in 
error. 

Mr.  Will  6.  Graves  for  defendant  in  er- 
ror. 

Januaiy  24,  1916.  Per  Curitum:  Dis- 
missed for  want  of  jurisdiction  upon  the 
authority  of  (1)  New  Orleans  Waterworks 
Co.  v.  Louisiana,  185  U.  S.  336,  344,  46  L. 
ed.  936,  941,  22  Sup.  Ct.  Rep.  691;  Consoli- 
dated Tump.  Co.  V.  Norfolk  &  0.  V.  R.  Co. 
228  U.  S.  596,  600,  57  L.  ed.  982,  983,  33 
Sup.  Ct.  Rep.  609;  Parker  v.  McLain,  237 
U.  S.  469,  471,  59  L.  ed.  1051,  1053,  35  Sup. 
Ct.  Rep.  632;  (2)  Ross  v.  Oregon,  227  U.  S. 
150,  57  L.  ed.  458,  33  Sup.  Ct.  Rep.  220, 
Ann.  Cas.  1914C,  224;  Moore-Mansfield 
Constr.  Co.  v.  Electrical  Installation  Co. 
234  U.  S.  619,  58  L.  ed.  1503,  34  Sup.  Ct. 
Rep.  941;  Willoughby  v.  Chicago,  235  U. 
S.  45,  59  L.  ed.  123,  35  Sup.  Ct.  Rep.  23. 


J.  J.  Broussard,  Plaintiff  in  Error,  v.  R. 

R.  Baker,!  Chief  of  Police  of  the  City 

of  Beaumont,  Tex.     [No.  199.] 
Error    to    state    court — frivolous    Federal 

question. 

In  Error  to  the  Court  of  Criminal  Ap- 
peals of  the  State  of  Texas  to  review  a  judg- 
ment which  affirmed  a  conviction  in  the  Dis- 

1  Death  of  N.  N.  Smith,  and  i4>pointment 
of  his  successor,  R.  R.  Baker,  as  chief  of 
police  of  the  city  of  Beaumont,  Texas,  sug- 
gested, and  appearance  of  R.  R.  Baker,  as 
the  party  defendant  in  error  herein,  filed 
and  entered  on  Novemher  29,  1915. 

1215 


639-^1 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tknc, 


trict  Court  of  Jefferson  County,,  in  that 
state,  for  maintaining  a  stock  pen  within 
designated  limits  without  a  municipal  per- 
mit. 

See  same  case  below,  74  Tex.  Crim.  Rep. 
333,  L.RJI.— ,  — ,  169  8.  W.  660. 

Mr.  Frederick  S.  Tyler  for  plaintiff  in 
error. 

No  appearance  for  defendant  in  error. 

January  24,  1916.  Per  Curiam:  Dis- 
missed for  want  of  jurisdiction  upon  the 
authority  of  ( 1 )  Consolidated  Tump.  Co.  ▼. 
Norfolk  &  0.  V.  R.  Co.  228  U.  S.  696,  600, 
67  L.  ed.  982,  983,  33  Sup.  Ct.  Rep.  609; 
Manhattan  L.  Ins.  Co.  ▼.  Cohen,  234  U.  S. 
123,  137,  68  L..ed.  1246,  1264,  34  Sup.  a. 
Rep.  874;  Easterling  Lumber  Co.  v.  Pierce, 
236  U.  S.  380,  382,  69  L.  ed.  279,  281,  35 
Sup.  Ct.  Rep.  133;  (2)  Fischer  ▼.  St.  Louis, 
194  U.  S.  361,  48  L.  e^.  1018,  24  Sup.  Ct. 
Rep.  673;  Davis  ▼.  Massachusetts,  167 
[640]  U.  S.  43,  42  L.  ed.  71,  17  Sup.  Ct. 
Rep.  731;  (3)  Iowa  C.  R.  Co.  v.  Iowa,  160 
U.  S.  389,  40  L.  ed.  467,  16  Sup.  Ct.  Rep. 
344;  Washington  y.  Miller,  235  U.  S.  422, 
429,  59  L.  ed.  295,  299,  36  Sup.  Ct.  Rep. 
119;  Roby  y.  South  Park  Comrs.  238  U.  S. 
610,  59  L.  ed.  1488,  36  Sup.  Ct.  Rep.  791. 


County  of  Sioux,  Neb.,  Plaintiff  in  Error 

V.  Newton  Rulk.     [No.  207.] 
Error  to  state  court — Federal  question. 

In  Error  to  the  Supreme  Court  of  the 
State  of  Nebraska  to  review  a  judgment 
which  affirmed  a  judgment  of  the  District 
Court  for  Sioux  County,  in  that  state, 
awarding  damages  to  a  landowner  for  land 
taken  for  a  section  line  road. 

See  same  case  below,  94  Neb.  736,  144  N. 
W.  806. 

Mr.  Allen  G.  Fisher  for  plaintiff  in  error. 

No  brief  filed  for  defendant  in  error.i 

January  24,  1916.  Per  Curiam:  Dis- 
missed for  want  of  jurisdiction  upon  the  au- 
thority of  Stewart  v.  Kansas  City,  239  U. 
S.  14,  ante,  120,  36  Sup.  Ct.  Rep.  15. 


John  H.  Stbosnideb,  Appellant,  v.  Eixmund 

M.  Allen,  Warden,  etc.  [No.  343.] 
Habeas   corpus — Federal    interference   with 

state  administration  of  criminal  law. 

Appeal  from  the  District  Court  of  the 
United  States  for  the  Northern  District  of 
Illinois  to  review  an  order  refusing  relief 
by  habeas  corpus  to  a  person  in  custody 
under  a  conviction  in  a  state  court  of  ob- 
taining money  by  means  of  the  confidence 
game. 

Mr.  Benjamin  C.  Bachrach  for  appellant. 

1  Appearance   of   Albert   W.   Crites   was 
entered  for  defendant  in  error,  but  no  brief  I 
filed. 
1216 


Messrs.  Patrick  J.  Luoey  and  Lester  E 
Strawn  for  appellee. 

January  24,  1916.  Per  Curiam:  Judg- 
ment afflxined  with  costs  upon  the  authority 
of  Urquhart  v.  Brown,  205  U.  S.  179,  51  L 
ed.  760,  27  Sup.  Ct.  Rep.  459;  Re  Spencer, 
228  U.  S.  652,  659-661,  57  L.  ed.  1010-1013, 
33  Sup.  Ct.  Rep.  709;  Frank  ▼.  Mangum, 
237  U.  S.  309,  328,  329,  59  L.  ed.  969,  980, 
981,  35  Sup.  Ct.  Rep.  582. 


Tallulah  Falls  Railway  Company,  Pic  in- 

tiff  in  Error,  v.  Mason  County  Supply 

Company.     [No.  222.] 
Commerce — state    regulation    of    carrier— 

conflicting  Federal  regulation. 

In  Error  to  the  Supreme  Court  of  the 
State  of  North  Carolina  to  review  a  judg- 
ment which  affirmed  a  judgment  of  the 
Superior  Court  of  Macon  County,  in  that 
state,  for  the  recovery  of  an  overcharge  on 
an  interstate  freight  shipment,  and  for  the 
penalty  prescribed  by  a  state  statute  for 
failure  to  refund  the  overcharge. 

See  same  case  below,  166  N.  C.  82,  UELA. 
— ,  — ,  82  S.  E.  13. 

Mr.  Hamilton  McWhorter  for  plaintiff  in 
error. 

No  appearance  for  defendant  in  error. 

February  21,  1916.  Per  Curiam:  Judg- 
ment reversed  with  costs  upon  the  authority 
of  Southern  R.  Co.  v.  Reid,  222  U.  S.  424, 
56  L.  ed.  257,  32  Sup.  Ct.  Rep.  140;  [641] 
Yasoo  &  M.  Valley  R.  Co.  v.  Greenwood 
Grocery  Co.  227  U.  S.  1,  57  L.  ed.  389,  33 
Sup.  Ct.  Rep.  213;  Charleston  &  W.  C.  R. 
Co.  V.  Vamville  Furniture  Co.  287  U.  S. 
597,  59  L.  ed.  1137,  35  Sup.  a.  Rep.  715. 


Illinois  Central  Railboad  Company, 
Plaintiff  in  Error,  v.  Chablbb  W.  Cous- 
ins. [No.  227.] 
Master  and  servant— employers'  liability — 
when  servant  is  engaged  in  interstate  com- 
merce. 

In  Error  to  the  Supreme  Court  of  the 
State  of  Minnesota  to  review  a  judgment 
which  affirmed  a  judgment  of  the  District 
Court  of  Ramsey  County,  in  that  state,  in 
favor  of  plaintiff  in  a  suit  brought  under 
the  Federal  employers'  liability  act. 

See    same    case    below,    126    Minn.    172, 

L.R.A.— ,  — ,  148  N.  W.  58,  6  N.  C.  C.  A. 

182. 

Mr.  W.  S.  Horton  for  plaintiff  in  error. 

Mr.  Samuel  A.  Anderson  for  defendant 

in  error. 

February  21,  1916.  Per  Curiam:  Judg- 
ment reversed  with  costs  upon  the  authority 
of  Delaware,  L.  &  W.  R.  Co.  v.  Yurkonis, 
238  U.  S.  439,  59  L.  ed.  1397,  36  Sup.  Ct 
Rep.  902;  Shanks  v.  Delaware,  L.  &  W.  R. 
Co.  239  U.  S.  556,  ante,  436,  36  Sup.  Ct 
Rep.  188. 

141  V.  S. 


1916. 


MEMORANDA  CASES. 


641-64S 


Paul  Daxohk,  Appellant,  t.  Albebt  Boxx- 
tOHWEiUEB,  United  States  Marihal,  etc. 
[No.  794.] 
Appeal — from  district  court — ^frivolons  Fed- 
eral qnesticm. 

Appeal  from  the  District  Court  of  the 
United  States  for  the  District  of  New  Jer- 
sey to  review  an  order  dismissing  a  writ 
of  habeas  corpus. 

Mr.  Merritt  Lane  for  appellant. 
Mr.  Solicitor  General  Davis  for  appellee. 
February  21,  1916.  Ptr  Curiam:  Dis- 
missed for  want  of  jurisdiction  upon  the  au- 
thority of  (1)  Fay  V.  Crozer,  217  U.  S.  455, 
64  L.  ed.  837,  30  Sup.  Ct.  Rep.  568;  Hannis 
Distilling  Co.  v.  Baltimore,  216  U.  S.  285, 
288,  54  L.  ed.  482,  483,  30  Sup.  Ct.  Rep. 
326;  Hendricks  v.  United  SUtes,  223  U.  S. 
178,  184,  56  L.  ed.  394,  3i)6.  32  Sup.  Ct. 
Rep.  313;  (2)  Benson  v.  Henkel,  198  U.  S. 
1, 10,  11,  49  L.  ed.  919,  922,  25  Sup.  Ct.  Rep. 
569;  Pierce  v.  Creecy,  210  U.  S.  387,  401, 
402,  52  L.  ed.  1118,  1120,  1121,  28  Sup. 
Ct  Rep.  714;  (3)  Glasgow  v.  Mover,  225 
U.  S.  420,  56  L.  ed.  1147,  .32  Sup.  (t.  Rep. 
763;  Johnson  v.  Hoy,  227  U.  S.  245,  57  L. 
ed.  497,  33  Sup.  Ct.  Rep.  240;  Henry  v. 
Henkel,  235  U.  S.  219,  59  L.  ed.  203,  85 
Sup.  Ct.  Rep.  54. 


[642]      SouTHEBN     Railway     CoMPANt, 
Plaintiff  in  Error,  v.  W.  C.  Thurston. 
[Nos.  230,  231,  232,  and  233.] 
Commerce — state  regulation  of  carrier— con- 
flicting Federal  legislation. 
Four   Writs   of   Error   to   the   Supreme 
Court  of  the  State  of  North  Carolina  to 
review  judgments  which  affirmed  judgments 
of  the  Superior  Court  of  Alamance  County, 
in   that   state,    for   the   recovery   of   over- 
charges on  interstate  freight  shipments,  and 
for  the  penalty  prescribed  by  a  state  statute 
for  failure  to  refund  such  overcharges. 

See  same  case  below,  165  N.  C.  598,  81 
8.  K  785. 

Mr.  John  K.  Graves  for  plaintiff  in  error. 
No  appearance  for  defendant  in  error. 
February  21,  1916.  Per  Curiam:  Judg- 
ments reversed  with  costs  upon  the  authori- 
ty of  Southern  R.  Co.  v.  Reid,  222  U.  S. 
424,  56  L.  ed.  257.  32  Sup.  Ct.  Rep.  140; 
Yazoo  ft  M.  Valley  R.  Co.  v.  Greenwood 
Grocery  Co.  227  U.  S.  1,  57  L.  ed.  389,  33 
Sup.  Ct.  Rep.  213;  Charleston  &  W.  C.  R. 
Co.  V.  Vamville  Furniture  Co.  237  U.  S. 
697,  69  L.  ed.  1137,  35  Sup.  Ct  Rep.  715. 


Court  of  the  State  of  Ohio  to  review  an  or- 
der dismissing  the  petition  for  a  writ  of 
error,  directed  to  the  Court  of  Appeals  of 
Cuyahoga  County,  in  that  state,  which  had 
affirmed  a  judgment  of  the  Court  of  Com- 
mon Pleas  of  said  county  in  favor  of  plain- 
tiffs in  personal -injury  actions. 

Mr.  Frank  S.  Masten  for  plaintiff  in  er- 
ror. 

Mr.  George  H.  Eichelberger  for  defend- 
ants in  error. 

February  28,  1916.  Per  Curiam:  Dis- 
missed for  want  of  jurisdiction  upon  the  au- 
thority of  Western  U.  Teleg.  Co.  v.  Crovo, 
220  U.  S.  364,  866,  55  L.  ed.  498,  499,  31 
Sup.  Ct.  Rep.  399;  Norfolk  &  S.  Tump. 
Co.  V.  Virginia,  225  U.  S.  264,  268,  269,  aC 
L.  ed.  1082, 1085, 1086,  32  Sup.  Ct.  Rep.  828; 
Stratton  v.  Stratton,  239  U.  8.  55,  ante, 
142,  36  Sup.  Ct.  Rep.  26. 


Vaixet  Steamship  CoMPAinr,  Plaintiff  in 
Error,  v.  JoHir  J.  Wattawa  [No.  546] ; 
and  Valley  Steamship  Company,  Plain- 
tiff in  error,  v.  John  Mraz  [No.  547]. 

Error  to  state  court — to  what  court  directed 
—dismissal. 
Two    Writs    of    Error    to    the    Supreme 

«0  li.  ed.  77 


Mabtra  L.   Sitnb,   Plaintiff  in   Error,  T. 
}^Ii8soLRi  Stats  Life  Inbdbanoe  Com- 
pany.    [No.  740.] 
Error  to  district  court — jurisdiction — ^Fed- 
eral question. 

In  Error  to  the  District  Court  of  the 
United  States  for  the  Eastern  District  of 
Missouri  to  review  a  judgment  in  favor  of 
plaintiff  in  an  action  on  a  policy  of  life  in- 
surance for  a  portion  only  of  the  sum  de- 
manded. 

Messrs.  Frederick  N.  Judson  and  John 
F.  Green  for  plaintiff  in  error. 

Mr.  James  C.  Jones  for  defendant  in  er- 
ror. 

February  28,  1916.  Per  Curiam:  Dis- 
missed for  want  of  jurisdiction  upon  the 
authority  of  Cornell  v.  Green,  163  U.  S.  75, 
79,  80,  41  L.  ed.  76-78,  16  Sup.  Ct.  Rep. 
969;  Arkansas  v.  Schlierholz,  179  U.  S.  598, 
601,  45  L.  ed.  335,  337,  21  Sup.  Ct.  Rep. 
229;  Lampasas  v.  Bell,  180  [643]  U.  S. 
276,  282,  45  L.  ed.  527,  530,  21  Sup.  a. 
Rep.  368;  Itow  v.  United  SUtes,  233  U.  S. 
581,  583,  584,  58  L.  ed.  1102,  1103,  84  Sup. 
Ct.  Rep.  609. 


Ex  pabte:  in  the  Matteb  of  David  Lamas, 
Petitioner.     [No.  — ,  Original.] 
Motion  for  leave  to  file  petition  for  Writ 
of  Mandamus  herein,  and  that  a  rule  to 
show  cause  issue. 
Mr.  A.  Leo  Everett  for  petitioner. 
February  28,  1916.    Denied.    It  is  further 
ordered  that  a  writ  of  certiorari  issue  to  1  he 
United  States  Circuit  Court  of  Appeals  for 
the  Second  Circuit  to  bring  up  the  record 
in  the  case  of  David  Lamar,  Plaintiff  in  Er- 
ror V.  United  States. 


643-^5 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct. 


Ex  Paste:  Ik  ths  Mattcb  of  Waltbb 
Brandt,  Petitioner.  [No.  — ,  Original.] 
Motion  for  leave  to  file  petition  for  Writ 

of  MandamiiB. 
Mr.  Frans  E.  Lindquitt  for  petitioner. 
No  appearance  for  respondent. 
February  28,  1016.    Denied. 


State  or  Soutb  Dakota  ez  rel.  R.  0. 

RiOHASDS  et  al..  Plaintiffs  in  Error/  ▼. 

M.  D.  Whismak,  as  County  Auditor  of 

Beadle  County,  South  Dakota.  [No.  819.] 
Error    to    state    court — frivolous    Federal 

question. 

In  Error  to  the  Supreme  Court  of  the 
State  of  South  Dakota  to  review  a  judgment 
which  affirmed  a  judgment  ot  the  Circuit 
Court  of  Beadle  County,  in  that  state,  sus- 
taining a  demurrer  to  a  complaint  by 
which  it  was  sought  to  enjoin  the  enforce- 
ment of  a  state  primary  election  law. 

See  same  case  below,  —  S.  D.  — ,  L.RJI. 
— ,  — ,  154  N.  W.  707. 

Messrs.  T.  H.  Null  and  Webster  Ballinger 
for  plaintiffs  in  error. 

Messrs.  Clarence  C.  Caldwell  and  Samuel 
Herrick  for  defendant  in  error. 

March  6,  1916.  Per  Curiam:  Dismissed 
for  want  of  jurisdiction  upon  the  authority 
of  (1)  Deming  v.  Carlisle  Packing  Co.  226 
U.  S.  102,  57  L.  ed.  l40,  33  Sup.  Pt,  Rep.  80 ; 
Consolidated  Tump.  Co.  v.  Norfolk  &.  0.  V. 
R.  Co.  228  U.  S.  596,  600,  57  L.  ed.  982,  983, 
33  Sup.  Ct.  Rep.  609;  Parker  v.  McLain,  237 
U.  S.  469,  471,  472,  59  L.  ed.  1051,  1053, 
1054,  35  Sup.  Ct.  Rep.  632;  (2)  Luther  v. 
Borden,  7  How.  1,  12  L.  ed.  581;  Taylor 
V.  Beckham,  178  U.  S.  548,  44  L.  ed.  1187, 
20  Sup.  Ct.  Rep.  890,  1009;  [644]  Pacific 
States  Teleph.  &  Teleg.  Co.  v.  Oregon,  233 
U.  S.  118,  56  L.  ed.  377,  32  Sup.  Ct.  Rep. 
224;  O^eill  v.  Leamer,  239  U.  S.  244,  248, 
ante,  249,  36  Sup.  Ct.  Rep.  54. 


HncHHAK   Coal  ft   Coke   Company,   Ap- 
pellant and  Petitioner,  v.  John  Mitohell, 
Individually,  et  al.  [No.  241.] 
Appeal — from  circuit  court  of  appeals — ju- 
risdiction below — diverse  citizenship. 
Appeal  from  and  Petition  for  a  Writ  of 
Certiorari  to  the  Circuit  Court  of  Appeals 
for  the  Fourth  Circuit. 
Mr.  Hannis  Taylor  for  appellant. 
Mr.  Charles  E.  Hogg  for  appellees. 
March  13,  1916.    Per  Curiam:     (1)  Ap- 
peal dismissed  for  want  of  jurisdiction  upon 
the  authority  of  Shulthis  v.  McDougal,  225 
U.  S.  561,  569,  56  L.  ed.  1205,  1210,  32  Sup. 
Ct.  Rep.  704;  Omaha  Electric  Light  &  P. 
Co.  V.  Omaha,  230  U.  S.  123,  57  L.  ed.  1419, 
33  Sup.  Ct.  Rep.  974;  St.  Anthony  Church 
V.    Pennsylvania   R.    Co.   237    U.    S.    576- 
577,  59  L.  ed.  1119,  1121,  1122,  35  Sup.  Ct. 
Rep.  729.       (2)  Considering  the  petition  for 
1218 


certiorari  hitherto  filed  and  upon  which 
action  was  previously  postponed  until  the 
merits  of  the  case  came  to  be  disposed  of, 
it  is  ordered  that  the  said  petition  be,  and 
the  same  is,  granted,  the  record  on  appeal 
to  stand  as  a  return  to  the  writ  of  cer- 
tiorari It  is  further  ordered  that  the  case, 
on  the  return  to  the  writ  of  certiorari,  be 
placed  on  the  docket  for  argument  before  a 
full  bench. 


Charles  A.  Thatoheb,  Appellant  and  Plain- 
tiff in  Error,  v.  UmncD  States  of  Am£BI- 
ca  et  al.     [No.  484.] 
Appeal — in  disbarment  proceeding. 

Appeal  from  and  in  Error  to  the  United 
States  Circuit  Court  of  Appeals  for  the 
Sixth  Circuit  to  review  a  judgment  which 
affirmed  an  order  of  the  Circuit  Court  for 
the  Northern  District  of  Ohio,  disbarring 
an  attorney. 

See  same  case  below,  129  C.  C.  A.  255, 
212  Fed.  801;  on  rehearing,  135  C.  C.  A 
71,  219  Fed.  173. 

Messrs.  Rhea  P.  Cary,  J.  Raymond  Hoov- 
er, and  Everett  V.  Abbot  for  appellant. 
Mr.  Solicitor  General  Davis  for  appellees. 
March  13,  1916.  Per  Curiam:  Dismissed 
for  want  of  [645]  jurisdiction  upon  the 
authority  of  Ex  parte  Bradley,  7  Wall.  364, 
376,  19  L.  ed.  214,  218;  £x  parte  Robinson, 
19  Wall.  513,  22  L.  ed.  205. 


Fabmebs  &  Mebciiaxts  State  Bank  of 
Waco,  Appellant,  v.  M.  C.  H.  Park,  Trus- 
tee of  Slay  den  Kirkscy  Woolen  Mill, 
Bankrupt.  [No.  108.] 
Appeal — review  of  facts-Msoncurrent  find- 
ings. 

Api^eal  from  the  United  States  Circuit 
Court  of  Appekls  for  the  Fifth  Circuit  to 
review  a  decree  which  affirmed  a  decree  of 
the  District  Court  for  the  Southern  District 
of  Texas,  refusing  to  allow  a  set-off  in  bank- 
ruptcy proceedings. 

See  same  case  below,  126  C.  C.  A.  607,  209 
Fed.  613. 
Mr.  0.  L.  Stribling  for  appellant. 
Messrs.  James  D.  Williamson  and  Rhodes 
S.  Baker  for  appellee. 

March  20,  1916.  Per  Curiam:  Judgment 
affirmed  with  costs  upon  the  authority  of 
First  Nat.  Bank  v.  Littlefield,  226  U.  S.  110, 
112,  57  L.  ed.  145,  146,  33  Sup.  Ct.  Rep.  69 ; 
Washington  Securities  Co.  v.  United  States, 
234  U.  S.  76,  78,  58  L.  ed.  1220,  1222,  34 
Sup.  Ct.  Rep.  725 ;  Wright-Blodgett  Co.  Y. 
United  States,  236  U.  S.  397,  402,  59  L.  ed. 
637,  639,  35  Sup.  Ct.  Rep.  339;  National 
Bank  of  Athens  v.  Shackelford,  239  U.  S. 
81,  82,  ante,  158,  36  Sup.  Ct.  Rep.  17,  and 
cause  remanded  to  the  District  Court  of  the 
United  States  for  the  Western  District  of 
Texas. 

141  V.  8. 


1015. 


MEMORANDA  CASES. 


046-647 


B08A  Falco,  Representing  Her  Minor  QiiM, 
Manuel  Adoaldo  Tiberio  Ca^inchi  y  Falco, 
Appellant»  t.  Sucobbsion  of  Saltadob 
SuAu  Mulct,  Composed  of  His  Widow, 
Meria  Hernandez  Rodriguez,  et  al.  [Ko. 
295.] 
Appeal — from  Porto  Rico  supreme  court — 
juriadietion. 

Appeal  from  the  Supreme  Court  of  Porto 
Rico  to  review  a  decree  which  affirmed  a 
decree  of  the  District  Court  of  MayagQez,  in 
favor  of  defendants  in  a  suit  to  recover  back 
sums  paid  which  were  not  due. 

See  same  case  below,  18  P.  R.  R.  713. 
[646]  Mr.  Jos6  R.  F.  Savage  for  appel- 
lant. 
Mr.  Edward  S.  Paine  for  appellees. 
March  20, 1916.    Per  Curiam:    Dismissed 
for  want  of  jurisdiction  upon  the  authority 
of  f  244  of  the  Judicial  Code,  Elzaburu  v. 
Chaves,  239  U.  S.  283, 285,  ante,  290, 36  Sup. 
Ct.  Rep.  47;  Gsell  v.  Insular  Collector,  239 
U.  a  93,  ante,  163,  36  Sup.  Ct.  Rep.  39. 


David  H.  Glass,  Appellant,  t.  Altbb)  H. 

Woodman  et  al.i    [No.  721.] 
Appeal — from  circuit  court  of  appeals— ju- 
risdiction— diverse  citizenship  case. 

Appeal  from  the  United  IStates  Circuit 
Court  of  Appeals  for  the  Eighth  Circuit  to 
review  a  decree  which  affirmed  an  order  of 
the  District  Court  for  the  Eastern  Distriot 
of  Missouri,  denying  a  petition  for  inter- 
vention  in  a  suit  for  the  appointment  of  a 
receiver  and  foreclosure. 

See  same  case  below,  139  C.  C.  A.  167, 
223  Fed.  621. 

Messrs.  W.  F.  Guthrie  and  Emmet  H. 
Gamble  for  appellant. 

Messrs.  John  8.  Leahy,  Walter  H.  Saun- 
ders, and  Irvin  V.  Barth  for  appellees. 

March  20,  1916.  Per  Curiam:  Dismissed 
for  want  of  jurisdiction  upon  the  authority 
of  ( 1 )  Bagley  v..  General  Fire  Extinguisher 
Co.  212  U.  S.  477,  53  L.  ed.  605,  29  Sup.  Ct 
Rep.  341;  Omaha  Electric  Light  &  P.  Co. 
V.  Omaha,  230  U.  S.  123,  57  L.  ed.  1419,  33 
Sup.  Ct.  Rep.  974;  St.  Anthony  Church  v. 
Pennsylvania  R.  Co.  237  U.  S.  675-577,  59 
L.  ed.  1119-1123,  35  Sup.  Ct.  Rep.  720; 
(2)  St.  Louis,  K.  C.  &  C.  R.  Co.  v.  Wabash 
R.  Co.  217  U.  S.  247,  250,  54  L.  ed.  752,  754, 
30  Sup.  Ct.  Rep.  510;  Railroad  Commission 
V.  Worthington,  225  U.  S.  101,  104,  56  L. 
ed.     1004,     1000,    32    Sup..  Ct.    Rep.    653; 

1  Death  of  Alfred  H.  Woodman  suggested, 
and  appearance  of  James  P.  Newell,  public 
administrator  of  the  city  of  St.  Louis,  and 
administrator  of  the  estate  of  Alfred  H. 
Woodman,  deceased,  filed  and  entered  on 
March  13.  1916. 
60  I4.  ed. 


ShuUhis  ▼.  McDougal,  225  U.  S.  561,. 568, 
56  L.  ad.  1205,  1210,  32  Sup.  Ct.  Rep.  704. 

The  petition  for  Writ  of  Certiorari  is  de- 
nied. 


F.  P.  Seekatz,  Plaintiff  in  Error,  v.  Medi- 
na Valley  Ibbigation  CoMPA^tT  et  al. 
[No.  294.] 
Appeal— from  district  court — Federal  ques- 
tion. 

In  Error  to  the  District  Court  of  th*) 
United  States  for  the  Western  District  of 
Texas  to  review  a  decree  fixing  the  amount 
of  damages  in  eminent  domain  proceedings. 
Mr.  C.  L.  Bass  for  plaintiff  in  error. 
Mr.  Floyd  McGown  for  defendants  in 
error. 

March  20,  1916.  Per  Curiam:  Dismissed 
for  want  of  jurisdiction  upon  the  authority 
of  (1)  Consolidated  Turnp.  Co.  v.  Norfolk 
&  0.  V.  R.  Co.  228  U.  S.  590,  600,  57  L.  ed. 
982,  988,  33  Sup.  Ct.  Rep.  609;  Manhattan 
t..  Ins.  Co.  V.  Cohen,  234  U.  S.  123,  137,  58 
L.  ed.  1245,  1254,  34  Sup.  Ct.  Rep.  874; 
Easterling  Lumber  Co.  v.  Pierce,  235  U.  S. 
380,  59  L.  ed.  270,  35  Sup.  Ct.  Rep.  133. 
(2)  Mississippi  &  R.  River  Boom  Co.  v. 
Patterson,  98  U.  S.  403,  Z6  L.  ed.  20G; 
Madisonville  Traction  Co.  v.  St.  Bernard 
Min.  Co.  196  [647]  U.  S.  230,  49  L.  ed. 
462,  25  Sup.  Ct.  Rep.  251 ;  Mason  City  &  Ft. 
D.  R.  Co.  V.  Boynton,  204  U.  S.  570,  51  L. 
ed.  629,  27  Sup.  Ct.  Rep.  321;  (3)  Chica<;o, 
B.  ^  Q.  R.  Co.  T.  Chicago,  166  U.  S.  220. 
244,  245,  41  L.  ed.  979,  987,  988,  17  Sup. 
Ct.  Rep.  581;  Bauman  v.  Ross,  167  U.  S. 
648,  593,  42  L.  ed.  270,  289,  17  Sup.  Ct 
Rep.  966;  A  Backus  Jr.  &  Sons  v.  Fort 
Street  Union  Depot  Co.  169  U.  S.  557,  569, 
42  L.  ed.  853,  859,  18  Sup.  Ct.  Rep.  445: 
(4)  Fallbrook  Irrig.  Dist.  v.  Bradley,  104 
U.  S.  112,  41  L.  ed.  369,  17  Sup.  Ct.  Rep. 
56;  Hairston  v.  Danville  k  W.  R.  Co.  208 
U.  S.  598,  52  L.  ed.  637,  28  Sup.  Ct.  Rep. 
331,  13  Ann.  Cas.  1008;  O'Neill  v.  Leamer, 
239  U.  S.  244,  253,  254,  ante,  249,  36  Sup. 
Ct.  Rep.  54. 


Ex  PARTE:  In  thv  Matteb  of  Paul  Bukva, 
Petitioner.     [No.  — ,  Original.] 
Motion  for  l^ive  to  file  petition  for  Writ 

of  Mandamus. 
Mr.  William  Wilhelm  for  petitioner. 
No  appearance  for  respondent. 
March  20,  1916.    Denied. 


Ex  PARTE:  In  thb  matter  or  WnxiAic 
Sage,  Jr.,  Petitioner.  [No.  — ,  Original.] 
Motion  for  leave  to  file  petition  for  Writ 

of  Mai^damus. 
Mr.  Edward  A.  Alexander  for  petitioner. 
No  appearance  for  respondent. 
Mfirch  20,  1916.    Denied. 


647-649 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tkuc, 


United  Railways  Ck>MPAirr  of  S.  Louis, 
Plaintiff  in  Error,  ▼.  Citt  or  St^  Louis. 
[Nos.  366  and  367.] 
Error  to  state  oourt — Federal  qnestion— de- 
cision on  non-Federal  ground. 
Two  Writs  of  Error  to  the  Supreme  Oourt 
of  the  State  of  Missouri  to  review  judg- 
ments which  affirmed  judgments  of  the  Cir- 
cuit Court  of  the  City  of  St.  Louis,  enfor- 
cing a  license  tax  on  street  railway  com- 
panies. 

See  same  case  below  in  No.  365,  263  Mo. 

387,  174  S.  W.  78,  No.  367,  263  Mo.  607,  174 

S.  W.  109. 

Mr.  Henry  S.  Priest  for  plaintiff  in  error. 

Mr.  Truman  P.  Young  for  defendant  in 

error. 

April  10,  1916.  Per  Curiam:  Dismissed 
for  want  of  jurisdiction  upon  the  authority 
of:  (1)  Eustis  V.  Bolles,  160  U.  S.  361,  37 
L.  ed.  1111,  14  Sup.  Ct.  Rep.  131;  Leathe  ▼. 
Thomas,  207  U.  S.  93,  52  L.  ed.  118,  28 
Sup.  Ct.  Rep.  30;  Holden  Land  ft  Live  Stock 
Co.  V.  Inter-State  Trading  Co.  233  U.  S. 
536,  541,  68  L.  ed.  1083,  1086,  34  Sup.  Ct 
Hep.  661;  Mellon  Co.  v.  McCafferty,  230 
1648]  U.  S.  134,  ante  181,  36  Sup.  Ct.  Rep. 
94;  (2)  Consolidated  Tump.  Co.  v.  Norfolk 
ft  O.  V.  R.  Co.  228  U.  S.  696,  600,  67  L.  ed. 
982,  983,  33  Sup.  Ct.  Rep.  609;  Parker  v. 
McLain,  237  U.  S.  469,  471,  69  L.  ed.  1061, 
1063,  36  Sup.  Ct.  Rep.  632;  Stewart  v.  Kan- 
sas City,  239  U.  S.  14,  ante,  120,  36  Sup. 
Ct.  Rep.  16;  (3)  Lindsley  v.  Natural  Car- 
bonic Gas  Co.  220  U.  S.  61,  78,  66  L.  ed. 
369,  377,  31  Sup.  Ct.  Rep.  337,  Ann.  Cas. 
1912C,  160;  Chicago  Dock  ft  Canal  Co.  v. 
Fraley,  228  U.  S.  680,  67  L.  ed.  1022,  33 
Sup.  Ct.  Rep.  716;  Denver  v.  New  York 
Trust  Co.  229  U.  S.  123,  143,  67  L.  ed.  1101, 
1124,  33  Sup.  Ct.  Rep.  667;  St.  Louis 
Southwestern  R.  Co.  v.  Arkansas,  236  U.  S. 
360,  366,  69  L.  ed.  266,  273,  36  Sup.  Ct. 
Rep.  99. 


St.  Louis  ft  Suburban  Railway  Coicpant 
et  al..  Plaintiffs  in  Error,  v.  St.  Loins 
[No.  866];  Unitkd  Railways  Company 
OF  St.  Louis,  Plaintiff  In  Error,  v.  Cmr 
of  St.  Louis,  [No.  368] ;  United  Rail- 
ways Company  of  St.  Louis,  Plaintiff  in 
Error,  v.  City  of  St.  Louis  [No.  869]; 
United  Railways  Company  of  St.  Louis, 
Plaintiff  in  Error,  t.  CXty  of  St.  Louis 
[No.  370];  United  Railways  Company 
OF  St.  Loins,  Plaintiff  in  Error,  v.  City 
of  St.  Louis  [No.  371];  and  St.  Loxtis 
Transit  Company,  Plaintiff  in  Error,  v. 
City  of  St.  Louis  [No.  372]. 

Error   to   state   court — Federal   question — 
decision  on  non-Federal  ground. 
Six  Writs  of  Error  to  the  Supreme  Court 

of  the  State  of  Missouri  to  review  judg- 

1220 


ments  which  affirmed  judgments  of  the  Cit- 
cuit  Court  of  the  City  of  St.  Louis,  oifor- 
cing  a  license  tax  on  street  railway  com- 
panies. 

See  same  case  below,  Nos.  366,  372,  263 
Mo.  508,  174  S.  W.  109,  110,  Nos.  36S-371, 
263  Mo.  507,  174  B.  W.  109. 

Mr.  Henry  S.  Priest  for  plaintiffs  in  er- 
ror. 

Mr.  Truman  P.  Young  for  defendant  in 
error. 

April  10, 1916.  Dismissed  for  the  want  of 
jurisdiction. 


H.  K  FiLL£B,  Appellant,  ▼.  Ben  Steele, 

Sheriff,  etc.     [No.  731.] 
Habeii6'  Corpus — ^Federal  interference  with 

state  administration  of  criminal  law. 

Appeal  from  the  District  Court  of  the 
United  SUtes  for  the  Western  District  of 
Pennsylvania  to  review  an  order  denying  a 
petition  for  a  writ  of  habeas  corpiis. 

See  same  case  below,  228  Fed.  242. 

Messrs.  Ralph  D.  Hurst  and  Thomas  H. 
Greevy  for  appellant. 

Messrs.  Cecil  E.  Heller,  C.  Ward  Eicher. 
and  George  E.  Barron  for  appellee. 

April  10,  1916.  Per  Curiam:  Judgment 
affirmed  with  costs  upon  the  authority  of: 
(1)  Ex  parte  Parks,  93  U.  S.  18,  21,  23  L. 
ed.  787,  788;  Tinsley  ▼.  Anderson,  171  U. 
S.  101,  105,  43  L.  ed.  91,  96,  18  Sup.  a. 
Rep.  805;  Frank  v.  Mangum,  237  U.  S. 
309,  326,  59  L.  ed.  969,  979,  35  Sup.  Ct. 
Rep.  582;  (2)  Allen  v.  Georgia,  166  U.  S. 
138,  140,  41  L.  ed.  949,  950,  17  Sup.  Ct.  Rep. 
525;  Felto  v.  Murphy,  201  U.  S.  123,  129, 
50  L.  ed.  689,  692,  26  Sup.  Ct.  Rep.  366; 
Twining  v.  New  Jersey,  211  U.  S.  78,  53 
L.  ed.  97,  29  Sup.  Ct.  Rep.  14;  Jordan  v. 
Massachusetts,  225  U.  S.  167,  56  L.  ed.  1038, 
32  Sup.  Ct.  Rep.  651;  (3)  Consolidated 
Turnp.  Co.  v.  Norfolk  &  0.  V.  R.  Co.  228 
U.  S.  596,  600,  57  L.  ed.  982,  983,  33  Sup. 
Ct  Rep.  600;  [649]  Overton  v.  Oklahoma, 
235  U.  S.  31,  59  L.  ed.  112,  35  Sup.  Ct 
Rep.  14;  Stewart  v.  Kansas  City,  239  U. 
S.  14,  ante,  120,  36  Sup.  Ct  Rep.  15. 


MissouBi     Paoifio     Railway     Compant, 
Plaintiff    in    Error,    v.    Lababbk   Floub 
Mills  Company.     [No.  460.1 
Error  to  state  court — second  appeal— dis- 
missal. 

In  Error  to  the  Supreme  Court  of  the 
State  of  Kansas  to  review  a  judgment  en- 
tered pursuant  to  the  mandate  of  the  Su- 
preme Court  of  the  United  States  on  a 
former  writ  of  error. 

See  same  case  below,  94  Kan.  683,  147 
Pac.  492. 

I     Messrs.  Balie  P.  Waggener,  A.  E.  Crane, 
and  W.  P.  Waggener  for  plaintiff  in  error. 

141  V.  8. 


1915. 


MEMORANDA  CASB6. 


64IMI51 


Metsn.   Joseph   O.   Waters   and   Charles 
Blood  Smith  for  defendant  in  error. 

April  17,  1916.  Per  Curiam:  Dismissed 
for  want  of  jurisdiction  with  10  per  centum 
damages,  upon  the  authority  of:  (1)  Rob- 
erts T.  Cooper,  20  How.  467,  481,  15  L.  ed. 
969,  973;  Wayne  County  v.  Kennicott,  94 
U.  S.  498,  24  L.  ed.  260;  Clark  ▼.  Keith, 
106  U.  S.  404,  27  L.  ed.  302,  1  Sup.  Ct.  Rep. 
568;  Chaffin  ▼.  Taylor,  116  U.  S.  567,  572, 
29  L.  ed.  727,  728,  6  Sup.  Ct.  Rep.  518; 
Thompson  v.  Maxwell  Land  Grant  &  R.  Co. 
168  U.  S.  451,  456,  42  L.  ed.  539,  541,  18 
Sup.  Ct.  Rep.  121;  Illinois  v.  Illinois  C.  R. 
Co.  184  U.  S.  77,  90-93,  46  L.  ed.  440,  446, 
447,  22  Sup.  Ct.  Rep.  300;  (2)  Missouri  P. 
R.  Co.  ▼.  Larabee  Flour  Mills  Co.  211  U.  S. 
612,  53  L.  ed.  352,  29  Sup.  Ct.  Rep.  214; 
Missouri  P.  R.  Co.  v.  Larabee,  234  U.  S. 
459,  58  L.  ed.  1398,  34  Sup.  Ct.  Rep.  979. 


Allison  MAircHEsnB,  Plaintiff  in  Error,  t. 

BOABO  OF  WaTEB  COMMISSIONKBS  of  TH8 

Cn-Y  OF  Hartfobo     [No.  863];  Allisox 
Manohssteb  et  al.,  Plaintiffs  in  Error 

Y,    BOABO    OF    WATES    ColClflSSIONBBS    OF 

THK  Cmr  OF  Habtford     [No.  864] ;  and 
Emma  Manchesteb  et  al.,  Plaintiffs  in 
Error,  ▼.  Board  of  Water  Commission- 
ers of  the    [650]    Cmr  of  Habtford 
[No.  865]. 
Constitutional    law — due    process — eminent 
domain — ^taking   land   for   storage   reser- 
voir —  municipal  water  supply. 
Three   Writs  of   Error   to   the  Supreme 
Court  of  Errors  of  the  State  of  Connecticut 
to  reyiew  judgments  which  affirmed  judg- 
ments of  the  Superior  Court  of  Littlefield 
County,  in  that  state,  in  favor  of  the  peti- 
tioners in  condemnation  proceedings. 

See  same  case  below,  first  appeal,  87  Conn. 
193,  87  Atl.  870,  Ann.  Cas.  1915A,  1105, 
second  appeal,  89  Conn.  671,  96  Atl.  182. 

Mr.  Edward  D.  Robbins  for  plaintiffs  in 
error. 

Messrs.  Edward  M.  Day  and  Alvan  Waldr 
Hyde  for  defendant  in  error. 

April  17,  1916.  Per  Curiam:  Judgment 
affirmed  with  costs  upon  the  authority  of: 
Fallbrook  Irrig.  Dist.  ▼.  Bradley,  164  U.  S. 
112,  160,  41  L.  ed.  360,  389,  17  Sup.  Ct. 
Rep.  56;  CUrk  ▼.  Nash,  198  U.  S.  361,  367- 
369,  49  L.  ed.  1085,  1087,  1088,  25  Sup.  Ct. 
Rep.  676,  4  Ann.  Cas.  1171;  Hairston  ▼. 
Danville  &  W.  R.  Co.  208  U.  S.  598,  52  L. 
ed.  637,  28  Sup.  Ct.  Rep.  331,  13  Ann.  Cas. 
1008;  Union  Lime  Co.  v.  Chicago  &  N.  W. 
R.  Co.  233  U.  S.  211,  218,  219,  58  L.ed.  924, 
928,  34  Sup.  Ct.  Rep.  522;  O'Neill  v.  Lea- 
rner, 239  U.  S.'  244,  253,  ante,  240,  36  Sup. 
Ct.  Rep.  54;  Mt.  Vernon- Woodberry  Cotton 
Duck  Co.  V.  Alabama  Interstate  Power  Co. 
240  U.  S.  30,  32,  ante,  507,  511,  36  Sup.  Ct.  j 
Rep.  234. 
60  li.  ed. 


Ex  pabtb:  In  toe  MAxmi  of  James  J. 

Gbiffih  and  Gordon  M.  Peacock,  Peti- 

tioners.     [No.  — ,  Original.] 

Motion  for  leave  to  fQe  petition  for  a  Writ 
of  Mandamus. 

Mr.  Arthur  E.  Dowell  for  petitioners. 

April  17,  1916.    Denied. 


Mabt  Mulcabe  et  al..  Administrators,  etc.. 

Plaintiffs  in  Error,  ▼.  Crrr  of  Chicago, 

[No.  312.] 
Constitutional  law— equal  protection  of  the 

laws — restriction  of  right  to  appeal. 

In  Error  to  the  Supreme  Court  of  the 
State  of  Illinois  to  review  a  judgment  re- 
fusing a  writ  of  error  to  the  Appellate 
Court  of  that  state  for  the  First  District, 
which  had  affirmed  a  judgment  of  the  Cir- 
cuit Court  of  Cook  County  in  favor  of  de- 
fendant in  an  action  on  a  contract. 

See  same  case  below,  in  Appellate  Court 
of  Illinois,  172  111.  App.  195. 

Mr.  John  W.  Walsh  for  plaintiffs  in  error. 

Mr.  Chester  E.  Cleveland  for  defendant  in 
error. 

April  24,  1916.  Per  Curiam:  Judgment 
affirmed  with  costs  upon  the  authority  of 
Missouri  v.  Lewis  (Bowman  v.  Lewis)  101 
U.  S.  22,  25  L.  ed.  989;  Cincinnati  Street 
R.  Co.  V.  Snell,  193  U.  8.  30,  35-37,  48  L. 
ed.  604,  607,  608,  24  Sup.  Ct.  Rep.  319. 


EIansas  Citt,  Mexico,  &  Obient  Railway 

Company,  Plaintiff  in  Error,  v.  State  of 

Texas.     [No.  188.] 
Error  to  state  oourt — ^moot  case — Federal 

question. 

[651]  In  Error  to  the  Supreme  Court  of 
the  State  of  Texas  to  review  a  judgment 
which  modified  a  judgment  of  the  Court  of 
Civil  Appeals  of  that  state  for  the  Third 
District,  affirming  a  judgment  of  the  Dis- 
trict Court  of  Travis  County,  requiring  a 
railway  company  to  build  its  line  to  a 
county  seat,  by  directing  that  the  manda- 
tory writ  be  suspended  while  the  railway 
remains  in  the  hands  of  receivers. 

See  same  case  below,  106  Tex.  249,  163 
S.  W.  582. 

Mr.  Herbert  S.  Garrett  for  plaintiff  in 
error. 

Mr.  Frank  L.  Snodgrass  for  defendant  in 
error. 

April  24,  1916.  Per  Curiam:  Dismissed 
for  want  of  jurisdiction  upon  the  authority 
of:  (1)  Jones  v.  Montague,  194  U.  S.  147, 
48  L.  ed.  913,  24  Sup.  Ct.  Rep.  611;  Rich- 
ardson V.  McChesney,  218  U.  S.  487,  54  L. 
ed.  1121,  31  Sup.  Ct.  Rep.  43;  Steams  v. 
Wood,  236  U.  S.  75,  59  L.  ed.  475,  35  Sup. 
Ct.  Rep.  229;  (2)  Kansas  City  Star  Co.  v. 
Julian,  215  U.  S.  589,  54  L.  ed.  340,  30 
Sup.  Ct.  Rep.  406;  Forbes  v.  State  Council, 
216  U.  S.  396-399,  64  L.  ed.  584-536,  30 

1211 


6G1-653 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  Tebm, 


Sup.  Ct.  Rep.  295;  St.  Louis  &  S.  F.  R.  Go. 
V.  Shepherd,  240  U.  ,S.  240,  ante,  622,  36 
Sup.  Ct.  Rep.  274;    (3)   Henkel  v.  Cincin- 
nati, 177  U.  S.  170,  44  L.  ed.  720,  20  Sup. 
Ct.  Rep.  573;  Fullerton  ▼.  Texas,  196  U.  S. 
192,  194,  49  L.  ed.  443,  444,  25  Sup.  Ct. 
Rep.  221;  Allen  v.  Arguimbau,  198  U.  S. 
149,  156,  49  L.  ed.  990,  993,  25  Sup.  Ct. 
Rep.  622;  Cleveland  &  P.  R.  Co.  ▼.  Cleve- 
land, 235  U.  S.  50,  55,  69  L.  ed.  127,  128, 
35  Sup.  Ct.  Rep.  21;    (4)   Deming  v.  Car- 
lUle  Packing  Co.  226  U.  S.  102,  57  L.  ed. 
140,    33    Sup.    Ct.    Rep.    80;    Consolidated 
Turnp.  Co.  v.  Norfolk  &  0.  V.  R.  Co.  228 
U.  S.  596,  600,  57  L.  ed.  982,  983,  33  Sup. 
Ct.  Rep.  609;  Parker  v.  McLain,  237  U.  S. 
469,   471,    59   L.    ed.    1051,   1053,   35   Sup. 
Ct.  Rep.  632.     See  Pinney  v.  Nelson,  183 
U.  S.  144,  147,  46  L.  ed.  125,  127,  22  Sup. 
Ct.  Rep.  52;  Abilene  Nat.  Bank  v.  Dolley, 
228  U.  S.  1,  5,  57  L.  ed.  707,  709,  33  Sup. 
Ct.  Rep.  409;  Lake  Shore  &  M.  S.  R.  Co. 
▼.  Ohio,  173  U.  S.  285,  289,  et  seq.,  43  L.  ed. 
702,  703,  19  Sup.  Ct.  Rep.  465;  Cincinnati, 
L  &  W.  R.  Co.  V.  Connersville,  218  U.  S. 
336,  54  L.  ed.  1060,  31  Sup.  Ct.  Rep.  93,  20 
Ann.  Cas.  1206;  Missouri  P.  R.  Co.  v.  Kan- 
sas, 236  U.  S.  262,  283,  et  seq.,  54  L.  ed. 
472,  481,  30  Sup.  Ct.  Rep.  330. 


Wilson   Ctpbesb   Company,  Appellant,  v. 

Enbique  del  Pozo  t  Maboos  et  aL    [Na 

135,  October  Term,  1914.] 

Motion  for  leave  to  file  in  the  trial  court 
a  supplemental  bill  in  the  nature  of  a 
bill  of  review. 

See  236  U.  S.  635,  59  L.  ed.  758,  35  Sup. 
Ct.  Rep.  446. 

Mr.  John  C.  Cooper  for  appellant. 

Messrs.  Joseph  H.  Jones,  William  W. 
Dewhurst,  and  John  C.  Jones  for  appellees. 

May  1,  1916.    Denied. 


Ignatius  Timothy  Tbibich  Lincoln,  Ap- 
pellant, V.  James  M.  Poweb,  Mabshal, 
etc.  [No.  793.] 
Foreign  extradition — ^habeas  corpus. 

Appeal  from   the  District  Court  of  the 
United  States  for  the  Eastern  District  of  | 
New  York  to  review  an  order  refusing  re- 
lief by  habeas  corpus  to  a  person  in  custody 
under  an  extradition  warrant. 
See  same  case  below,  228  Fed.  70. 
Mr.  Addison  S.  Pratt  for  appellant. 
Mr.  Charles  Fox  for  appellee. 
May  1,  1916.     Per  Curiam:     Judgment 
affirmed  with  costs  upon  the  authority  of 

( 1 )  Re  Oteiza  y  Cortes,  136  U.  S.  330,  334, 
34  L.  ed.  464^  466,  10  Sup.  Ct.  Rep.  1031, 
8  Am.  Crim.  Rep.  241;  Ornelas  v.  Ruiz,  161 
U.  S.  502,  508,  40  L.  ed.  787,  789,  16  Sup. 
Ct.  Rep.  689;  [652]  Bryant  v.  United 
SUtes,  167  U.  S.  104,  105,  42  L.  ed.  94,  95, 
17  Sup.  Ct.  Rep.  744;  Terlinden  t.  .^es, 
184  U.  S.  270,  278,  46  L.  ed.  534,  541,  22 
Sup.  Ct.  Rep.  484,  12  Am.  Crim.  Rep.  424; 
Elias  V.  Ramirez,  215  U.  S.  398,  406,  407, 
54  L.  ed.  253,  256,  257,  30  Sup.  Ct.  Rep. 
131;  McNamara  ▼.  Henkel,  226  U.  S.  520, 
523,  57  L.  ed.  330,  332,  33  Sup.  Ct.  Rep.  146 ; 

(2)  David  Kaufman  &  Sons  Co.  v.  Smith, 
216  U.  S.  610,  54  L.  ed.  636,  30  Sup.  Ct. 
Rep.  419;  Toop  v.  Ulysses  Land  Co.  237  U. 
S.  580,  59  L.  ed.  1127,  35  Sup.  Ct.  Rep. 
739 ;  Manila  Invest.  Co.  v.  Trammell,  239 
U.  S.  31,  ante,  129,  86  Sup.  Ct.  Rep.  12.  ' 
1111 


Daniel  A.  Long,  Plaintiff  in  Error,  t.  John 

£.  Shepabd.     [No.  324.] 
Errqr  X9   state   court — Federal   question — 

local  law. 

• 

In  Error  to  the  Supreme  Court  of  the 
State  of  Oklahoma  to  review  a  judgment 
which,  reversing  a  judgment  of  the  District 
Court  of  Hughes  County,  in  that  state,  deny- 
ing plaintiff's  motion  for  judgment  on  the 
pleadings  in  a  suit  to  cancel  a  deed,  directed 
the  entry  of  judgment  for  the  cancelation 
of  such  deed  as  to  a  part  of  the  land  covered 
by  it. 

See  same  case  below,  35  Okla.  489,  130 
Pac.  131. 

Messrs.  Lewis  C.  Lawson  and  C.  Dale 
Wolfe  for  plaintiff  in  error. 

No  appearance  for  defendant  in  error. 

May  8,  1916.  Per  Curiam:  Dismissed 
for  the  want  of  jurisdiction  upon  the  au- 
thority of  National  Foundry  &  Pipe  Works 
V.  Oconto  Water  Supply  Co.  183  U.  S.  216, 
237,  4Q  L.  ed.  157,  170,  22  Sup.  Ct.  Rep. 
Ill;  Vandalia  R.  Co.  v.  Indiana,  207  U.  S. 
359,  367,  52  L.  ed.  246,  248,  28  Sup.  a. 
Rep.  130;  Brinkmeier  v.  Missouri  1'.  R. 
Co.  224  U.  S.  268,  270,  56  L.  ed.  758,  760, 
32   Sup.   Ct.   Rep.   412. 


Ex  PABTE:  In  the  Mattes  of  ELenrr  R. 
Robinson,  Petitioner.  [No.  ,  Orig- 
inal.] 

Motion  for  leave  to  file  petition. 
Messrs.  George  W.  Ellis  and  R.  E.  West- 
brooks  for  petitioner. 
No  appearance  for  respondent. 
[653]  May  8,  1916.    Denied. 


Anna  C.  Dunham  et  al..  Plaintiffs  In  £r- 

ror,  V.  Claba  V.  Kauffman  et  al.    [No. 

189.]  . 
Error    to    state    court — frivolous    Federal 

question. 

In  Error  to  the  Supreme  Court  of  the 
State  of  Ohio  to  review  a  decree  which  af- 
firmed a  decree  of  the  Court  of  Appeala  of 
Franklin  County,  in  that  state,  affirming  a 

141  V.  S. 


1916. 


MEMORANDA  CASES. 


653,  054 


decree  of  the  common  pleas  court  which  re- 
fused to  enjoin  the  consolidation  of  two  cor- 
porations. 

See  same  case  below,  90  Ohio  St.  419,  108 
N.  E.  1118. 

Mr.  D.  K.  Watson  for  plaintiffs  in  error. 

Mr.  Charles  C.  Pavey  for  defendants  in 
error. 

May  22,  1916.  Per  Curiam:  Dismissed 
for  want  of  jurisdiction,  upon  the  author- 
ity of  (1)  Equitable  Life  Assur.  Soc.  v. 
Brown,  187  U.  S.  308,  314,  47  L.  ed.  190, 
193,  23  Sup.  Ct.  Rep.  123;  Consolidated 
Tump.  Co.  V.  Norfolk  &  0.  V.  R.  Co.  228 
U.  S.  596,  600,  57  L.  ed.  982,  983,  33  Sup. 
Ct.  Rep.  609;  Manhattan  L.  Ins.  Co.  v. 
Cohen,  234  U.  S.  123,  137,  58  L.  ed.  1245, 
1254,  34  Sup.  Ct.  Rep.  874.  (2)  Penn- 
sylvania  College  Cases,  13  Wall.  190,  20 
L.  ed.  550;  Newburyport  Water  Co.  v. 
Newburyport,  193  U.  S;  561,  48  L.  ed.  795, 
24  Sup.  Ct.  Rep.  553;  Missouri  P.  R.  Co. 
V.  Kansas,  216  U.  S.  262,  274,  275,  54  L. 
ed.  472,  .477,  478,  30  Sup.  Ct.  Rep.  330 
(3)  Deming  v.  Carlisle  Packing  Co.  226 
U.  6.  102,  105,  57  L.  ed.  140,  142,  33  Sup. 
Ct.  Rep.  80:  Ennis  Waterworks  ▼.  Ennis, 
233  U.  S.  652,  658,  58  L.  ed.  1139,  1141, 
34  Sup.  Ct.  Rep.  767;  Parker  v.  McLain, 
237  U.  8.  469,  471,  59  L.  ed.  1051,  1053,  35 
Sup.  Ct.  Rep.  632. 


RoBEBT  D.  KiKszT,  Plaintiff  in  Error,  v. 

Plticouth  Rock  Squab  Compant  et  aJ. 

[No.  344.] 
Appeal — ^from  circuit  court  of  appeals — ^ju- 
risdiction. 

In  Error  to  the  United  States  Circuit 
Court  of  Appeals  for*  the  First  Circuit  to 
review  a  judgment  which  affirmed  a  judg- 
ment of  the  District  Court  of  Massachusetts 
in  favor  of  defendant  in  an  action  on  an  al- 
leged judgment. 

See  same  case  below,  131  C.  C.  A.  178,  214 
Fed.  766. 

Mr.  Robert  D.  Kinney,  plaintiff  in  error, 
pro  se. 

No  appearance  for  defendants  in  error. 

May  22,  1916.  Per  Curiam:  Dismissed 
for  want  of  jurisdiction  upon  the  author- 
ity of  (1)  Bagley  v.  General  Fire  Extin- 
guisher Co.  212  U.  S.  477,  53  L.  ed.  ^05, 
29  Sup.  Ct.  Rep.  341;  Weir  v.  Rountree, 
216  U.  8.  607,  54  L.  ed.  635,  30  Sup.  Ct. 
Rep.  418;  St.  Anthony  Church  v.  Penn- 
sylvania R.  Co.  237  U.  S.  575,  59  L.  ed 
1119,  35  Sup.  Ct.  Rep.  729;  (2)  Provident 
Sav.  Life  Assur.  Soc.  v.  Ford,  114  U.  S. 
635,  64l,  642,  29  L.  ed.  261,  263,  264,  5 
Sup.  Ct.  Rep.  1104;  Metcalf  v.  Watertown, 
128  U.  S.  586,  588,  32  L.  ed.  543,  544,  9 
Sup.  Ct.  Rep.  173;  Pope  v.  Louisville,  N. 
60  Ii.  ed. 


A.  &  C.  R.  Co.  173  U.  S.  573,  580,  581,  43 
L.  ed.  814,  817,  818,  19  Sup.  Ct.  Rep.  500. 
See  United  States  ex  rel.  Kinney  v.  United 
States  Fidelity  &  G.  Co.  222  U.  S.  283,  56 
L.  ed.  200,  32  Sup.  Ct.  Rep.  101;  [654] 
Kinney  v.  Plymouth  Rock  Squab  Co.  236 
U.  S.  43,  59  L.  ed.  457,  35  Sup.  Ct.  Rep. 
236. 


FiBST     National     Bank     of     Defiance, 
Plaintiff  in  Error,  v.  William  A.  Keh- 
NAST  et  al.     [No.  333.1 
Error  to  state  court — Federal  question — de- 
cision on  non- Federal  ground. 
In  Error  to  the  Supreme  Court  of  the 
State  of  Ohio  to  review  a  jiftgment  which 
affirmed  a  judgment  of  the  Circuit  Court  of 
Defiance  County,  in  that  state,  which  had 
in  turn   affirmed  a  judgment  of  the  Coni- 
mon  Pleas  Court  in  favor  of  defendants  in 
an  action  by  a  national  bank  upon  certain 
promissory  notes. 

See  same  case  below,  91  Ohio  St.  377,  110 
N.  E.  1059. 

Messrs.  Robert  Newbegin  and  Henry  New- 
begin  for  plaintiff  in  error. 

Messrs.  T.  T.  Shaw,  Henry  B.  Harris,  E. 
J.  Marshall,  and  H.  W.  Eraser  for  defend- 
ants in  error. 

May  22,  1916.  Per  Curiam:  Dismissed 
for  want  of  jurisdiction  upon  the  author- 
ity of  (1)  Eustis  V.  Bolles,  150  U.  S.  361, 
37  L.  ed.  1111,  14  Sup.  Ct.  Rep.  131; 
Chemical  Nat.  Bank  v.  City  Bank,  160  U. 
S.  646,  40  L.  ed.  568,  16  Sup.  Ct.  Rep.  417; 
Leathe  v.  Thomas,  207  U.  S.  93,  52  L.  ed. 
118,  28  Sup.  Ct.  Rep.  30;  Mellon  Co.  v. 
MoCafferty,  239  U.  S.  134,  ante,  181,  36 
Sup.  Ct.  Rep.  94;  (2)  Leather  Mfrs.  Nat. 
Bank  v.  Cooper,  120  U.  S.  778,  781,  30  L. 
ed.  816,  818,  7  Sup.  Ct.  Rep.  777;  Whitte- 
more  v.  Amoskeag  Nat.  Bank,  134  U.  S. 
527,  530,  33  L.  ed.  1002,  1004,  10  Sup.  Ct. 
Rep.  592;  Petri  v.  Commercial  Nat.  Bank, 
142  U.  S.  644,  36  L.  ed.  1144,  12  Sup.  Ct. 
Rep.  325;  Herrmann  v.  Edwards,  238  U. 
S.  107,  69  L.  ed.  1224,  86  Sup.  Ct  Rep. 
839. 


St.  Louis  &  Sait  Fbanoisoo  Railbdad  Com- 

FAirr,    Plaintiff   in    Error,   y.   John   H. 

MouivTS.     [No.  362.] 
Carriers — limiting  liability  to  agreed  value 

— Carmack  amendment. 

In  Error  to  the  Supreme  Court  of  the 
State  of  Oklahoma  to  review  a  judgment  of 
the  District  Court  of  Tillman  County,  in 
that  state,  against  a  carrier,  for  the  full 
value  of  a  horse  killed  in  transit  in  inter- 
state commerce,  notwithstanding  a  limita- 
tion of  liability  in  the  bill  of  lading  to  an 
i^greed  value. 

192S 


654-e66 


SUPREME  CX)URT  OF  THE  UNITSD  STATES. 


OOT.  TkiM, 


See  same  case  below,  44  Okla.  360,  144 
Pac.  1036. 

Mr.  R.  A.  Kletnsehmidt  for  pUintifT  in 
error. 

Ko  oounsel  appeared  for  defendant  in 
error. 

June  6,  1916.  Fw  Ownam:  Judgment 
reversed  with  costs,  and  cause  remanded  for 
further  proceedings  upon  the  authority  of 
Adams  Exp.  Co.  v.  Croninger,  226  U.  S.  491, 
67  L.  ed.  314,  44  L.R.A.(N.S.)  257,  33  Sup. 
Ct.  Rep.  148;  Missouri,  K.  &  T.  R.  Go.  v. 
Harriman,  227  U.  8.  657,  57  L.  ed.  690,  33 
Sup.  Ct.  Rep.  397;  Atchison,  T.  &  S.  F. 
R.  Co.  V.  Robinson,  233  U.  S.  173,  58  L. 
ed.  901,  34  Sup.  Ct.  Rep.  556;  Georgia,  F. 
k  A.  R.  Co.  V.  Blish  Mill.  Co.  241  U.  S.  190, 
ante,  948,  36  Sup.  Ct  Rep.  541. 


[655]  Ex  PASTE:  In  thk  Matteb  of  El- 

BEST  R.  RoBiNSOif,  Petitioner.     [No.  — , 

Original.] 

Motion  for  leave  to  file  an  amended  peti- 
tion. 

Mr.  Richard  E.  Westbrooks  for  petitioner. 

June  6,  1916.    Denied. 


OsANOE  Wilson  White,  Plaintiff  in  Error, 

V.  State  or  Wyoming.    [No.  578.] 
Error  to  state  court — frivolous  Federal  ques- 
tion. 

In  Error  to  the  Supreme  Court  of  the 
State  of  Wyoming  to  review  a  judgment 
which  affinhed  a  conviction  of  murder  in 
the  District  Court  of  Natrona  County,  in 
that  state. 

See  same  case  below,  —  Wyo.  — ^  147 
Pac.  171;  on  rehearing,  148  Pac.  342. 
Mr.  A.  E.  L.  Leckie  for  plaintiff  in  error. 
Mr.  Douglas  A.  Preston  for  defendant  in 
error. 

June  12,  1916.  Fw  Curiam:  Dismissed 
for  want  of  jurisdiction,  upon  the  authority 
of  Deming  v.  Carlisle  Packing  Co.  226  U. 
S.  102,  106,  67  L.  ed.  140,  142,  83  Sup.  Ct 
Rep.  80;  Consolidated  Tump.  Co.  v.  Nor- 
folk &  0.  V.  R.  Co.  228  U.  S.  596,  600,  67 
L.  ed.  982,  983,  33  Sup.  Ct.  Rep.  609; 
Overton  v.  Oklahoma,  236  U.  S.  81,  69  L. 
ed.  112,  35  Sup.  Ct  Rep.  14;  Parker  t.  Mo- 
Lain,  287  U.  8.  469,  471,  472,  69  L.  ed. 
1051,  1053,  1064,  35  Sup.  Ct  Rep.  682. 


District  of  California,  denying  writs  of 
habeaa  corpus. 

See  same  case  below,  137  C.  C.  A.  166, 
221  Fed.  868. 

Mr.  Marshall  B.  Woodworth  for  appel- 
lant 

Mr.  Solicitor  General  Davis  for  appellee. 

June  12,  1916.  Per  Curiam:  Dismissfd 
for  want  of  jurisdiction,  upon  the  authority 
of  Lau  Ow  Bew  v.  United  States,  144  U.  8. 
47,  58,  36  1m  ed.  340,  344,  12  Sup.  Ct.  Rep 
517;  Whitney  v.  Dick,  202  U.  S.  132,  135, 
60  L.  ed.  963,  964,  26  Sup.  Ct  Rep.  584; 
McClellan  v.  Carland,  217  U.  S.  268,  278, 
64  L.  ed.  762,  766,  30  Sup.  Ct.  Rep.  501. 

Petition  for  Writ  of  Certiorari  herein 
granted. 


TtMOTHT  Healt,  Appellant,  t.  Saicukl  W. 

Backus,  Commissioner,  etc  [No.  687.] 
Appeal — ^from  circuit  court  of  appeals — 
habeas  corpus  cases-^certiorari. 

Appeal  from  the  United   States  Circuit 
Court  of  Appeals  for  the  Ninth  Circuit  to 
review  a  judgment  which  affirmed  a  judg- 
ment of  the  District  Court  for  the  Northern  '  p.  485. 
1294 


Ex   PARTE:     In   the   Mattbi   of   Watts, 

Watts,  &  Co.,  Ltd.,  Petitioner.     [No.  — , 

Original.] 

Motion  for  leave  to  file  petition  for  Writ 
of  Mandamus. 

Messrs.  Mark  W.  Maclay,  Jr.,  J.  Parker 
Kirlin,  and  John  M.  Woolsey  for  petitioner. 

[656]  June  12,  1916.    Denied. 


Ex   PASTE:       lir   THE   MATTER   OF   JOHN    H. 

Sears,  as  Trustee,  Petitioner.     [No.  — , 

Original.] 

Motion  for  leave  to  file  petition  for  Writ 
of  Mandamus. 

Mr.  A.  H.  Ferguson,  in  behalf  of  Mr.  Car- 
roll G.  Walter,  for  petitioner. 

No  appearance  for  respondent. 

June  12,  1916.     Denied. 


Martin   H.   Free,   Plaintiff  In    Error,  y. 

Western    Union    Telegraph    Cokpant. 

[No.  226.] 

Motion  to  vacate  judgment  of  dismissal 
herein,  and  to  restore  case  to  the  docket. 

Messrs.  B.  I.  Salinger  and  Frederick  S. 
Tyler  for  plaintiff  in  error. 

Messrs.  Rush  Taggart  and  Francis  Ray- 
mond Stark  for  defendant  in  error. 

Jims  12,  1916.    Granted. 


I 


Wells  Fargo  ft  Compant,  Petitioner,  t. 

Mayor  and  Aldhrmen  of  Jersey  City. 

[No.  792.] 

This  case,  as  reported  in  vol.  241  U.  S. 
656,  has  been  already  reported  herein,  ante^ 


141  V.  S. 


1U16. 


MEMORANDA  CASES. 


657-«59 


[657]  St.  Louis  Union  Trust  Coif  pant, 

Petitioner,   ▼.   Mart   E.   Mellon   et   al. 

[No.  735.] 

See  same  case  below,  140  C.  C.  A.  607, 
225  Fed.  603. 

Mr.  W.  F.  Wilson  for  petitioner. 

No  appearance  for  respondents. 

January  24,  1916.  Order  of  December 
20,  1915,  denying  petition,  vacated  and  set 
aside,  and  a  writ  of  certiorari  granted. 


Waldo  P.  Clement  et  al.,  Petitioners,  ▼.  D. 

W.  James.     [No.  720.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit. 

See  same  case  below,  128  C.  C.  A.  470, 
211  Fed.  972. 

Messrs  John  R.  Abney  and  Hollins  N. 
Randolph  for  petitioners. 

Messrs.  Alexander  W.  Smith,  Theodore  A. 
Hammond,  Victor  Lamar  Smith,  and  Alex- 
ander W.  Smith,  Jr.,  for  respondent. 

January  24,  1916.    Denied. 


Yee  Kong,  Petitioner,  v.  W.  W.  Sibbat,  Ira- 
migration  Inspector,  et  al.    [No.  768.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Third  Circuit. 

See  same  case  below,  141  C.  C.  A.  555, 

227  Fed.  1. 

Mr.  Lowrie  C.  Barton  for  petitioner. 
No  appearance  for  respondents. 
January  24,  1916.     Denied. 


Houston  Oil  Compant  of  Texas  et  al., 

Petitioners,  v.  Cobneua  G.  Goodbich  et 

al.     [No.  784.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit 

Messrs.  Thomas  M.  Kennerly  and  William 
[658]  L.  Marbury  for  petitioners. 

No  appearance  for  respondents. 

January  31,  1916.    Granted. 


William  A.  Stowe,  Plaintiff  in  Error,  t. 

EMifA  F.  Tatlob.  [No.  221.] 

Petition  for  a  Writ  of  Certiorari  to  the 
Superior  Court  of  the  State  of  Massa- 
chusetts, or  other  proper  proceeding  under 
the  act  of  Congress  of  December  23,  1914. 

Mr.  HoUis  R.  Bailey  for  plaintiff  in  er- 
ror. 

Mr.  James  H.  Vahey  for  defendant  in 
error.  1 

January  31,  1916.    Denied. 

1  Appearance  of  Mr.  Vahey  entered  for 
defendant  in  error,  but  he  filed  no  brief  on 
this  petition. 
«0  Ii.  ed. 


National  Bank  of  CoifiaBCB  or  Seattlb, 
Petitioner,  v.  United  States.  [No.  763.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appe^s  for 

the  Ninth  Circuit. 

See  same  case  below,  140  C.  C.  A.  219, 

224  Fed.  679. 

Messrs.  James  A.  Kerr  and  E.  8.  McCord 

for  petitioner. 

No  brief  filed  for  respondent. 
January  31,  1916.    Denied. 


Geobge  L.  Dube,  Receiver,  etc.,  Petitioner, 

▼.  William    C.    Wbight,    Trustee,    etc. 

[No.  804.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit. 

See  same  case  below,  228  Fed.  1021. 

Mr.  John  R.  L.  Smith  for  petitioner. 

Messrs.  Orville  A.  Park  and  Geo.  8. 
Jones  for  respondent. 

January  31,  1916.    Denied. 


Centbal  Railboad  Company  or  New  Jee- 

BET,  Petitioner,  v.  Uniied  States.    [No. 

805.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Third  Circuit. 

See  same  case  below,  229  Fed.  501. 
[659]  Mr.  Richard  V.  Lindabury  for  peti- 
tioner. 

Mr.  G.  Carroll  Todd,*  Assistant  to  the 
Attorney  General,  for  respondent. 

February  21,  1916.    Denied. 


Bbuce  Bobland,   Petitidner,  y.  Nobtheen 

Tbust    Safe   Deposit   Company.      [No. 

821.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Seventh  Circuit. 

See  same  case  below,  228  Fed.  1019. 

Messrs.  George  P.  Fisher  and  Joslah  Mo- 
Roberts  for  petitioner. 

Messrs.  Robert  H.  Parkinson  and  Wallaot 
R.  Lane  for  respondent. 

February  21,  1916.    Denied. 


National  Bbake  &  Elsotbio  Company,  Pe- 
titioner, y.  Neils  A.  Chbi8tbn8EN  et  al. 
[No.  824.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Seventh  Circuit. 
See  same  case  below,  229  Fed.  564. 
Messrs.  Parker  W.  Page,  Thomajs  B.  Kerr, 

J.  Snowden  Bell,  and  Charles  A.  Brown  for 

petitioner. 
Messrs.    Joseph    B.    Cotton,    Willet    M 

Spooner,  and  William  R.  Rummler  for  re- 
spondents. 
February  21»  1916.    Denied. 

1996 


659--662 


SUPREME  COURT  OF  THE  UNITED  STATES. 


OOT.  Tkbm, 


Glabk    PEASKy    Petitioner,    ▼.    Rathbun- 

JoNBs     Enoineebino    Cokfant.       [No. 

820.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit 

Messrs.  Perry  J.  Lewis  and  E.  0.  Bran- 
denburg for  petitioner. 

No  appearance  for  respondent. 

February  28,  1916.    Granted. 


WiLUAK  FiLEiTB's  SoNS  COMPANY,  Peti- 
tioner, V.  Charles  F.  Weed  et  aL  [Ko. 
827.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  [660]  Circuit  Court  of  Ap- 
peals for  the  First  Circuit. 

^IcsBfs.  Louis  D.  Brandeis,  William  H. 
Dunbar,  and  J.  Butler  Studley  for  peti- 
tioner. 

Messrs.  Charles  F.  Choate,  Jr.,  and  Fred- 
erick U.  Nash  for  respondents. 
February  28,  1916.    Granted. 


RoBEBT   H.   Gabdineb,   stc.,   Petitioner,   y. 

William  S.  Butleb  (Inc.)  etc.  [No.  831.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  First  Circuit. 

Messrs.  Bentley  J.  Warren  and  Francis 
B.  James  for  petitioner. 

Messrs.  Charles  F.  Choate,  Jr.,  and  Fred- 
erick H.  Nash  for  respondent. 

February  28,  1916.    Granted. 


Antonio  Ciffo,  Petitioner,  ▼.  Mabie  Ciffo. 

[No.  825.] 

Petition  for  a  Writ  of  Certiorari  to  the 
Court  of  Appeals  of  the  District  of  Colum- 
bia. 

See  same  case  below,  44  App.  D.  C.  217. 

Mr.  Charles  F.  Carusi  for  petitioner. 

Mr.  W.  Gwynne  Gardiner  for  respond- 
ent. 

February  28,  1916.    Denied. 


Joseph  H.  Coubtnet,  Trustee,  ete.,  Peti- 
tioner, ▼.  Eugene  A.  Geobgoi.  [No.  834.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Second  Circuit. 
See  same  case  below,  228  Fed.  869. 
Messrs.  Charles  P.  Hine  and  Rufua  8. 

Day  for  petitioner. 
Mr.  E.  H.  Letchworth  for  respondent. 
February  28,  1916.     Denied. 

J226 


St.  Louis  Southwebtisn  Railway  Cox- 
pant,  Petitioner,  ▼.  Cboeijo  Maodel  et  aL 
[Ko.  836.] 

[661]  Petiti<m  for  a  Writ  of  Certiorari 
to  the  United  States  Circuit  Court  of  Ap- 
peals for  the  Fifth  Circuit. 

See  same  case  below,  141  C.  C.  A.  671,  227 
Fed.  1021. 

Messrs.  E.  B.  Perkins  and  Edward  A 
Haid  for  petitioner. 

Mr.  Perry  J.  Lewis  for  respondents. 
February  28,  1916.    Denied. 


Pbess  Pubushino  Company,  Petitioner,  ▼. 

Cassius  E.  Gillette.     [No.  841.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Second  Circuit. 

See  same  case  below,  229  Fed.  108. 

Messrs.  Joseph  H.  Clioate  and  Howard 
Taylor  for  petitioner. 

Mr.  D.  Cady  Herrick  for  respondent. 

February  28,  1916.    Denied. 


Habby  B.  Hollins,  Petitioner,  v.  A.  Lso 
EVEBBTT,  Receiver,  etc.  [Ko.  844.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Second  Circuit. 
See  same  case  below,  229  Fed.  349. 
Messrs.  Charles  K.  Beekman  and  William 

C.  Armstrong  for  petitioner. 
Mr.  Leonard  B.  Smith  for  respondent. 
February  28,  1916.    Denied. 


Maby  C.  Keyseb  et  al.,  Petitioners,  t.  W.  H. 

Milton,  Receiver,  etc  [>io.  861.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit. 

See  same  case  below,  228  Fed.  594. 

Messrs.  Francis  B.  Carter,  W.  A.  Blount, 
and  A.  C.  Blount  for  petitioners. 

Mr.  W.  H.  Watson  for  respondent. 

February  28,  1916.    Denied. 


El  Dia  IirsuBANOE  Compaiiy,  Petitioner,  v. 

William  S.  Sinclaib.    [No.  852.] 

Petition  for  [662]  a  Writ  of  Certiorari 
to  the  United  States  Circuit  Court  of  Ap- 
peals for  the  Second  Circuit. 

See  same  case  below,  228  Fed.  833. 

Mr.  Wendell  P.  Barker  for  petitioner. 

Mr.  William  Otis  Badger,  Jr.,  for  re- 
spondent. 

February  28,  1916.    Denied. 

141  V.  S. 


J916. 


MEMORANDA  CASES. 


662-664 


W.  E.  Martiw,  Jb.,  Trustee,  etc.,  Petitioner, 

▼.     GoKMicBCiAL     National    Baick     of 

Maoon,  Ga.  [No.  839.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit. 

Mr.  Rudolph  S.  Wimberly  for  petitioner. 

Xo  appearance  for  respondent. 

March  6,  1916.     Granted. 


Cecil  F.  Adamson,  Petitioner,  v.  David  C. 

Gujlland.     [No.  878.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit. 

Mr.  Percy  B.  Hills  for  petitioner. 

No  appearance  for  respondent. 

March  13,  1916.     Granted. 


Jesse  Isidor  Stbaus  et  al.,  etc.,  Petitioners, 

v.  Victor  Talking   Machine   Company. 

[No.  840.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Second  Circuit. 

Messrs.  Edniond  E.  Wise  and  Walter  C. 
Noyes  for  petitioners. 

Messrs.  Frederick  A.  Blount  and  Hector 
T.  Fenton  for  respondent. 

March  6,  1916.    Granted. 


Union    Trust    Compant,    Petitioner,    v. 

Minnie  Kahn  Gkosican  et  al.  [No.  862.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit. 

Mr.  William  H.  Atwell  for  petitioner. 

Messrs.  Francis  Marion  Etheridge  and 
J.  M.  McCormick  for  respondents. 

March  6,  lOlG.    Granted. 


Jacob  Blumenthal,  Trading  as  J.  Blum- 

entlial  &  Company,  et  al.,  Petitioners,  v. 

Benjahin  L.    [663]    Strat  et  al.,  etc 

[No.  797.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Third  Circuit. 

See  same  case  below,  227  Fed.  843. 

Mr.  George  F.  Deiser  for  petitioners. 

No  appearance  for  respondents. 

March  6,  1916.     Denied. 


TuBULAB  Woven  Fabric  Compant,  Petition- 
er,   T.    National  Mvtal  Moij)ino  Com- 
pany.   [No.  871.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  First  Circuit. 
See  same  case  below,  227  Fed.  884. 
Messrs.  William  Qninby,  F.  W.  Lehmann, 

Frank  G.  Gladney,  Liyingston  Gifford,  and 

Peter  G.  (Jerry  for  petitioner. 
Mr.  Charles  F.  Perkins  for  respondent. 
March  6,  1016.    Denied. 

€0  li.  ed. 


Georob  Rue,  Petitioner,  v.  United  States. 

[No.  848.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals 
for  the  Fifth  Circuit. 

See  same  case  below,  228  Fed.  1022. 

Mr.  Cecil  H.  Smith  for  petitioner. 

No  appearance  for  respondent. 

March  13,  1016.    Denied. 


Edwabd  W.  G.  Meebs,  et  al..  Petitioners,  ▼. 

Alrebt  Childers.    [No.  877.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals 
[664]  for  the  Eighth  Circuit. 

See  same  case  below,  228  Fed.  640. 

Messrs.  Julian  C.  Wilson,  Walter  P.  Arm- 
strong, and  Daniel  W.  Baker  for  petitioners 

No  appearance  for  respondents. 

March  13,  1916.    Denied. 


OscAB    J.    Weeks,    Petitioner,    ▼.   United 

States.    [No.  870.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Second  Circuit. 

Mr.  Walter  Jeffreys  Carlin  for  petitioner. 

Mr.  Solicitor  General  Davis  for  respuiid- 
ent. 

March  20,  1916.     Granted. 


Cnr   OF   Colobado,   Texas,   Petitioner,   v. 

Clabisse  M.  Habbison.    [No.  880.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit. 

See  same  case  below,  228  Fed.  894. 

Mr.  Robert  Toombs  Neill  for  petitioner. 

Mr.  James  T.  Neville  for  respond^it. 

April  3,  1916.    Denied. 


Alvin    H.    Stoxjt,    Petitioner,    v.    United 

States.    [No.  894.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit. 

See  same  case  below,  227  Fed.  799. 

Mr.  H.  L.  Stuart  for  petitioner. 

No  appearance  for  respondent. 

April  3,  1916.    Denied. 

1197 


66i-d67 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Ooi.  Tbm, 


William  E.  Cbutchlxt,  Petitioner,  y.  Na- 
tional FntiPBOOFiNO  CoicPAirr.  [No. 
898.] 

Petition  for  a  Writ  of  Certiorari  to  the 
Court  of  Appeals  of  the  District  of  Colum- 
bia. 

See  same  ease  below,  44  Wash.  L.  Rep.  20. 
Mr.  Daniel  W.  Baker  for  petitioner. 
Messrs.  Walter  C.  Clephane  and  Alan  B. 
Clephane  for  respondent. 
April  3,  1916.    Denied. 


[665]  C.  W.  Johnson,  Tbusive,  etc.,  Peti- 
tioner,   v.    Louisvillb    Woolen    Mills. 
[No.  901] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Sixth  Circuit. 

See  same  case  below,  228  Fed.  606. 
Mr.  D.  A.  Sachs  for  petitioner. 
Mr.  Keith  L.  Bullitt  for  respondent. 
April  3,  1916.    Denied. 


Oboboe  a.  Fuller  Company,  Petitioner,  ▼. 

Otib  Elevator  Company.     [No.  909.] 

Petition  for  a  Writ  of  Certiorari  to  the 
Court  of  Appeals  of  the  District  of  Colum- 
bia. 

Mr.  Edward  S.  DuTall,  Jr.,  for  peti- 
tioner. 

Messrs.  Frederick  D.  McKenney  and  J.  S. 
Flannery  for  respondent. 

April  10,  1916.    Granted. 


Clabk  Pease  et  al.,  Petitioners,  ▼.  Rath- 
bun-Jones  Enqineebing  Company.    [No. 
911.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Fifth  Circuit. 

Messrs.   Perry   J.   Lewis   and   Edwin   C. 

Brandenburg  for  petitioners. 
No  appearance  for  respondent. 
April  10,  1916.    Granted. 


VicTOB  Hebbebt  et  al.,  Petitioners,  v.  Shan- 
ley  Company.    [No.  924.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Second  Circuit. 
Messrs.     Nathan     Burkan     and     W.    J. 

Hughes  for  petitioners. 
Mr.  Abraham  S.  Gilbert  for  respondent. 
April  10,  1916.     Granted. 


John  Chubgh  Company,  Petitioner,  y.  Hil- 
LiABD  Hotel  Company  et  al.    [No.  930.] 
Petition  [666]  for  a  Writ  of  Certiorari 
to  the  United  States  Circuit  Court  of  Ap- 
peals for  the  Second  Circuit. 

Mr.  Moses  H.  Grosman  for  petitioner. 
Mr.  Levi  Cooke  for  respondents. 
April  10,  1916.    Granted. 
1228 


Helen  Hise  et  al..  Petitioners,  y.  We8Teb5 
Coal  ft  Mnmvo  Company.    [No.  683.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Ei£^th  Circuit. 

See  same  case  below,  132  C.  C.  A.  482. 

216  Fed.  338. 
Mr.  John  H.  Vaughn  for  petitioners. 
Messrs.  Edward  J.  White  and  Thomas  B. 

Pryor  for  respondent. 
April  10,  1916.    Denied. 


Monaonock  Mills,  Petitioner,  v.  Henbt  E. 

FusHEY,  Administrator,  etc.     [No.  683.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  First  Circuit. 

See  same  case  below,  140  C.  C.  A  72, 
224  Fed.  386. 

Mr.  H.  W.  Parker  for  petitioner. 

Mr.  George  F.  Morris  for  respondent. 

AprU  10,  1916.    Denied. 


Gold  Medal  Camp  Fubnitube  Manufao- 
tubing    Company,    Petitioner,    v.    Tblc- 
SCOPE  Cot  Bed  Company.    [No.  861.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Second  Circuit. 
See  same  case  below,  229  Fed.  1002. 
Mr.  Charles  F.  Fawsett  for  petitioner. 
Mr.  Alan  D.  Kenyon  for  respondent 
April  10,  1916.     Denied. 


Pebcy  B.  Suluvan,  Petitioner,  ▼.  Umted 

States.     [No.  906.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
[667]  the  Seventh  Circuit. 

Messrs.  Leslie  A.  Gilmore  and  Frank  S. 
Bright  for  petitioner. 

Mr.  Solicitor  General  Daris  for  respond- 
ent. 

April  10,  1916. '  Denied. 


Fbanklin    Huff    et    al.,    Petitioners,    ▼. 

United  States.     [No.  917.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit. 

See  same  case  below,  228  Fed.  892. 

Messrs.  C.  L.  Bartlett,  John  D.  Little, 
Marion  Smith,  A.  G.  Powell,  and  M.  F. 
Goldstein  for  petitioners. 

Mr.  Solicitor  General  Davis  and  Mr.  As- 
sistant i^ttorney  General  Wallace  for  re- 
spondent. 

April  10,  1916.    Denied. 

141  V.  8. 


191& 


MEMORANDA  CA8S& 


667-600 


Bklb  Watib  Hkatb  GoicPAirr,  Petitioner, 

y.  PlTTSBUBQK  WATB  HkATEB  COICPANT. 

[No.  922.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals 
for  the  Third  Circuit. 

See  same  case  below,  228  Fed.  674. 

Mr.  Melville  Church  f<nr  petitioner. 

No  appearance  for  respondent. 

April  10,  1916.    Denied. 


Paul  E^gush  et  al..  Petitioners,  t.  Ella 
Wymax  Bbown  et  al.  [No.  931.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Third  Circuit. 

See  same  case  below,  229  Fed.  34. 
Messrs.  H.  C.  Brome  and  Andrew  Foulds, 

Jr.,  for  petitioners. 
Mr.  Chauncey  Q.  Parker  for  respondents. 
AprU  10,  1916.    Denied. 


Hbnbt  C.  Callaohan,  Petitioner,  y.  Com- 
mon wealth    OF    MASaAOHUBEITB.       [No. 

937.] 

[668]  Petition  for  a  Writ  of  Certiorari 
to  the  Superior  Court  of  the  State  of  Mas- 
sachusetts. 

See  same  case  below,  in  Supreme  Judicial 
Court  of  Massachusetts,  223  Mass.  160,  111 
N.  E.  773. 

Messrs.  Joseph  F.  CConnell,  Bernard  J. 
Killion,  and  Charles  Toye  for  petitioner. 

No  appearance  for  respondent. 

April  10,  1916.    Denied. 


W.  A.  Gaines  &  Company,  Petitioner,  y. 

Hkllman  Distillino  Company,  etc.  [No. 

906.] 

Petition  for  a  writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit. 

See  same  case  below,  88  C.  C.  A.  437,  161 
Fed.  495. 

Messrs.  Edmund  F.  Trabne,  D.  W.  Lind- 
scy,  and  James  Loye  Hopkins  for  petitioner. 

Messrs.  W.  T.  Ellis  and  Luther  Ely  Smith 
for  respondent. 

April  17,  1916.     Denied. 


W.  O.  Simpson  et  al..  Petitioners,  y.  United 

Stai-es.     [No  916.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Ninth  Circuit. 

See  same  case  below,  229  Fed.  940. 

Mr.  William  H.  Atwell  for  petitioners. 

No  appearance  for  respondent. 

April  17,  1916.    Denied. 
€0  li.  ed. 


Chablbb  T.  Tuckeb,  Petitioner,  y.  Unito 

States.    [No.  921.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Sixth  Circuit. 

See  same  case  below,  140  CCA.  279, 
224  Fed.  833. 

Messrs.  Charles  T.  Tucker,  in  fnvpria  per- 
aona,  Nathaniel  H.  Maxwell,  and  Francis 
B.  James  for  petitioner. 

Mr.  Solicitor  General  Dayis  and  Mr.  As- 
sistant Attorney  General  Wallace  for  re- 
spondent. 

April  17.  1916.    Denied. 


John  K.  Rose,  etc.,  et  al..  Petitioners,  y. 

Peteb  McCleixand,  Jr.    [No.  933.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  [669]  Ap- 
peals for  the  Fifth  Circuit 

See  same  case  below,  137  C.  C.  A.  619, 
222  Fed.  67. 

Messrs.  Richard  I.  Munroe,  Marshall  Sur- 
ratt,  and  J.  J.  Darlington  for  petitioners. 

Messrs.  Francis  Marion  Etheridge  and 
James  Manson  McCormick  for  respondent. 

April  17,  1916.    Denied. 


Anna  S.  Hopkins,  Petitioner,  y.  Lawbence 
Hull,  Trustee,  etc     [No.  944.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Second  Circuit. 
See  same  case  below,  229  Fed.  378. 
Mr.  J.  Grattan  MacMahon  for  petitioner. 
Winifred  Sullivan  for  respondent. 
AprU  17,  1916.    Denied. 


Alexander  Nisbet,  as  Commissioner,  etc.. 

Petitioner,  v.   Federal  Title  &  Trust 

Company.     [No.  946.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit. 

See  same  case  below,  229  Fed.  644. 

Messrs.  Elijah  N.  Zoline  and  John  T. 
Bottom  for  petitioner. 

Messrs.  Ernest  Morris  and  William  W. 
Grant,  Jr.,  for  respondent. 

April  17,  1916.     Denied. 


United  States,  as  Trustee,  etc.,  Petitioner, 

y.  HiBAH  Chase.     [No.  954.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit. 

Mr.  Solicitor  General  Davis  for  petitioner. 

Messrs.  Hiram  Chase  and  William  R. 
King  for  respondent. 

April  24,  1916.    Granted. 

1119 


669-672 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Got.  Temm, 


R.  L.  MouiDBif,  Trustee,  etc.,  Petitioner,  ▼. 

Pablin   &  Obbndobit  Implbicent  Com- 

PAirr  et  al.    [No.  §23.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit. 

See  same  case  below,  L.RAl.  — ,  — ,  228 
Fed.  111. 

Mr.  Jesse  P.  Gates  for  petitioner. 

Messrs.  Frjancis  Marion  Etheridge  and 
Joseph  Manson  McCormick  for  respondents. 

[670J  April  24,  1916.    Denied. 


Mason  &  Hangeb  Company,  Petitioner,  v. 

Michael  Shabon.    [No.  948.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Second  Circuit. 

See  same  case  below,  first  appeal,  135 
C.  C.  A.  276,  219  Fed.  526;  second  appeal, 
231  Fed.  861. 

Mr.  Herman  S.  Hertwig  for  petitioner. 

Mr.  Sydney  A.  Symc  for  respondent. 

AprU  24,  1916.    Denied. 


Stcabns  Coal  and  Lumbeb  Compant,  Pe- 
titioner, V.  John  S.  Van  Winkle  et  al. 
[No.  956.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Sixth  Circuit. 

See  same  case  below,  137  C.  C.  A.  314,  22] 

Fed.  590. 
Mr.  James  N.  Sharp  for  petitioner. 
Mr.  James  Garnett  for  respondents. 
April  24,  1916.    Denied. 


Habbt  Oliveb,  Petitioner,  ▼.  United  States. 

[No.    938.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Ninth  Circuit. 

See  same  case  below,  230  Fed.  971. 

Messrs.  George  A.  Knight  and  Charles  J. 
Heggerty  for  petitioner. 

Mr.  Solicitor  General  Davis  for  respond- 
ent. 

May  1,  1916.    Denied. 


John  P.  Bbooan,  Petitioner,  y.  National 

Subett  Company.     [No.  949.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  [671]  Ap- 
peals for  the  Sixth  Circuit. 

See  same  case  below,  L.R.A. — ^  — ^  228 
Fed.  677. 

Mr.  John  A.  Cline  for  petitioner. 

Mr.  Thomas  H.  Hogsett  for  respondent. 

May  1,  1916.    Denied. 
ISSO 


Geoboe  W.  Bowen,  etc.,  Petttioner,  ▼.  Dices 

Pbesb  Quabd  Manueactubino  Compant 

et  al.     [No.  856.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Cireoit  Court  of  Appeala  for 
the  Second  Circuit. 

See  same  case  below,  229  Fed.  573. 

Mr.  Charles  F.  Fawsett  for  petitioner. 

No  counsel  appeared  for  respondents. 

May  8,  1916.    Denied. 


Matob  and  Cirr  Counsel  of  Baltimobe, 
Petitioner,  v.  United  Railways  &  Elec- 
TBic  Company  of  Baltimobb.    [No.  955.] 
Petition  for  a  Writ  of  Certiorari  to  the 
Coprt  of  Appeals  of  the  State  of  Maryland. 
See  same  case  below,  —  Md.  -^,  96  Atl. 
880. 
Mr.  S.  S.  Field  for  petitioner. 
Mr.   Sylvan  Hayes  Lauchheimer  for  re- 
spondent. 
May  8,  1916.    Denied. 


WnjJAM   W.   Downey,  Receiver,  etc.,  Pe- 
titioner,  v.    Habtfobd   Fibe   Insubancb 
Company.    [No.  958.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Fourth   Circuit. 
See  same  case  below,  139  C.  C.  A.  237,  223 

Fed.  707. 
Messrs.    John    0.    Henson    and    Malcolm 

Jackson  for  petitioner. 
Messrs.  W.  Calvin  Chesnut  and  John  W. 

Davis  for  respondent. 
May  8,  1916.    Denied. 


GUABANTY  TbUST  COMPANY  OF  NEW  YOBR 

et  al..  Petitioners,  v.  Bettendobf  Axle 

Company.    [No.  967.] 

Petition  for  a  Writ  of  Certiorari  to  th*r 
[672]  United  States  Circuit  Court  of  Ap- 
peals for  the  Eighth  Circuit. 

See  same  case  below,  139  C.  C.  A.  132,  223 
Fed.  542. 

Mr.  Alfred  W.  Kiddle  for  petitioners. 

Mr.  James  R.  SheflSeld  for  respondent 

May  8,  1916.    Denied. 


Bbonx    National    Bank,    Petitioner,    ▼. 

Mabcus  Rosenthal,  Trustee,  etc     [Na 

970.] 

Petition  for  a  Writ  of  Certiorari  to  th» 
United  States  Circuit  Court  of  Appeals  for 
the  Second  Circuit. 

See  same  case  below,  231  Fed.  691. 

Messrs.  Charles  D.  Folsom  and  John  Hall 
Jones  for  petitioner. 

Mr.  Eugene  L.  Bondy  for  respondent. 

May  8,  1916.    Denied. 

141  V.  B. 


1916. 


MEMORANDA  CASES. 


672-675 


J.  A.   Fbxbmi,  AdminiBtrator,   etc..   Peti- 
tioner, T.  Chioaoo,  JjAkx  Shobb,  &  South 
Bend  Railway  Company.    [No.  972.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Seventh  Circuit. 
Mr.  John  N.  Hughes  for  petitioner. 
Mr.  S.  H.  Tolles  for  respondent. 
May  8,  1916.    Denied. 


Bates  County,  in  the  State  of  Missouri, 

et  al.,  Petitioners,  v.  Percy  A.  Hipple  et 

al.,  etc.     [No.  976.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit. 

See  same  case  below,  138  C.  C.  A.  430, 
223  Fed.  22. 

Mr.  John  T.  Barker  for  petitioners. 

Mr.  William  M.  Williams  for  respond- 
ents. 

May  8,  1916.    Denied. 


ViBoiNiA  Railway  k  Power  Company  et 

al..  Petitioners,  v.  Charles  Hall  Davis. 

[No.  980.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Fourth  Circuit. 

See  same  case  below,  229  Fed.  633. 

Messrs.  [673]  £.  Randolph  Williams, 
Charles  P.  Howland,  Eppa  Hunton,  Jr., 
Arthur  H.  Van  Brunt,  and  Henry  W.  An- 
derson for  petitioners. 

Mr.  James  Mann  for  respondent. 

May  8,  1916.    Denied. 


British  Steamship  Company   (Ltd.),  etc., 

Petitioner,   ▼.   Mary    A.    Clarile.      [No. 

983.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the-^Fifth  Circuit. 

Messrs.  J.  Parker  Kirlin,  Charles  R. 
Hickox,  and  Mark  W.  Maclay,  Jr.,  for  peti- 
tioner. 

Messrs.  W.  A.  Blount,  A.  C.  Blount,  and 
F.  B.  Carter  for  respondent. 

May  8,  1916.    Denied. 


National   Carbon   Company   et  al.,   Peti- 
tioners, V.  Ohio  Motor  Car  Company  et 
al.     [No.  984.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Sixth  Circuit. 

See  same  case  below,  230  Fed.  370. 
Mr.  W.  B.  Mente  for  petitioners. 
Messrs.  Province  M.  Pogue  and  Harry  M. 

Hoffheimer  for  respondents. 
May  22,  1916.    Denied. 

60  li.  ed. 


W.  L.  Wilson,  Petitioner,  t.  Frank  Waldo 

et  al.    [No.  996.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Fourth  Circuit. 

See  same  case  below,  231  Fed.  654. 

Messrs.  Julius  C.  Martin,  Thomas  S.  Rol- 
lins, and  George  H.  Wright  for  petitioner. 

Mr.  James  H.  Merrimon  for  respondents. 

May  22,  1916.    Denied. 


Crescent  Milling  Company,  Petitioner,  v. 

H.  N.  Strait  Manufacturing  Company. 

[No.  939.] 

[674]  Petition  for  a  Writ  of  Certiorari 
to  the  United  States  Circuit  Court  of  Ap- 
peals for  the  Eighth  Circuit. 

See  same  case  below,  227  Fed.  804. 

Messrs.  Harris  Richardson  and  £.  C. 
Brandenburg  for  petitioner. 

Mr.  John  I.  Dille  for  respondent. 

May  22,  1916.    Denied. 


Alice  State   Bank  et  al..  Petitioners,  t. 

Houston  Pasture  Company.     [No.  973.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit. 

Messrs.  Henry  W.  Taft  and  Walter  P. 
Napier  for  petitioners. 

Mr.  William  D.  Gordon  for  respondent. 

May  22,  1916.    Granted. 


L.  T.  Hays,  Petitioner,  v.  United  States. 

[No.  978.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the    Eighth    Circuit. 

Mr.  Harry  0.  Glasser  for  petitioner. 

No  appearance   for   respondent. 

May  22,  1916.    Granted. 


William    McCoACii,    Collector,    etc.,    Peti- 
tioner, ▼.  Insurance  Company  of  North 
America.    [No.  998.] 
Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Third  Circuit. 

Mr.    Solicitor    General    Davis    for    peti- 
tioner. 

Messrs.  G.  W.  Pepper  and  Bayard  Henry 
for  respondent. 
May  22,  1916.    Granted. 


William   H.   Miner,   Petitioner,  t.  T.  H. 

Symington  Company.     [No.  1018.] 

Petition  for  a  [676]  Writ  of  Certiorari 
to  the  United  States  Circuit  Court  of  Ap- 
peals for  the  Seventh  Circuit. 

Messrs.  Charles  C.  Lenthicum  and  George 
I.  Haight  for  petitioner. 

Messrs.  Melville  Church  and  Gilbert  P 
Ritter  for  respondent. 

June  5,  1916.     Granted. 

1231 


•76-^77 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  TkBM, 


H.  B.  H0LLIN8  k  CoMPAKT,  Petitioner,  ▼. 

A.  Leo  Evkbbtt,  aB  Receiver,  etc.     [No. 

086.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  SUtes  Circuit  Court  of  Appeals  for 
the  Second  Circuit. 

See  same  case  below,  232  Fed.  124. 

Meears.  Charles  K.  Beekman  and  William 
C.  Armstrong  for  petitioner. 

Mr.  Leonard  B.  Smith  for  respondent. 

June  5,  1916.    Denied. 


Leiiioh   k   Whjebsbabbe   Coal  Company, 
Petitioner,   t.   Habitord   k  New   York 
Tbamsfobtation  Company.    [No.  994.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Second  Circuit. 
See  same  case  below,  140  C.  C.  A.  1,  225 

Fed.  483. 

Mr.  Jackson  E.  Reynolds  for  petitioner. 
Mr.  John  W.  Grifl&n  for  respondent. 
June  5,  1916.    Denied. 


William  H.  Coopbb,  Petitioner,  t.  United 

States.     [No.  1006.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Second  Circuit. 

See  same  case  below,  232  Fed.  81. 

Mr.  John  W.  Griggs  for  petitioner. 

Mr.  Solicitor  General  Davis  for  respond- 
ent. 

June  5,  1916.    Denied. 


William  F.  Murray,  Postmaster,  Petition- 
er, V.  Post  Publishing  Company.  [No. 
1007.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  [676]  Court  of  Ap- 
peals for  the  First  Circuit. 
See  same  case  below,  230  Fed.  773. 
Mr.  Solicitor  General  Davis  for  petitioner. 
Mr.  Edmund  A.  Whitman  for  respondent 
June  5,  1916.    Denied. 


William  I.  Lewis,  etc.  Petitioner,  y.  In- 
ternational Steam  Pump  Company  et 
al.     [No.  1015.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Second  Circuit. 

Messrs.    Merritt    Lane    and    W.    Bourke 

Cockran  for  petitioner. 
Messrs.    Charles    H.    Russell,    Paul    D. 

Cravath,  and  William  W.  Green  for  respond- 
ents. 
June  5,  1916.    Denied. 

1282 


D18TBICT  OF  Columbia,  Pttitioner,  t.  Wash- 
ington Gas  Light  Company.  [No.  1017.] 
Petition  for  a  Writ  of  Certiorari  to  the 
Court  of  Appeals  for  the  Diatrict  of  Co- 
lumbia. 

See  same  case  below,  44  Waah.  L.  Rep. 
262. 

Messrs.    Conrad    H.    Syme    and    F.   H. 
Stephens  for  petitioner. 

Messrs.   Benjamin   S.   Minor,   Colley  W. 
Bell,  and  J.  J.  Darlington  for  respondent 
June  6,  1916.    Denied. 


Whitney   Eaklb   Habmon,    Petitioner,  ▼. 

Unfted  States.     [No.  1022.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appesls 
for  the  First  Circuit. 

See  same  case  below,  139  C.  C.  A.  19,  223 
Fed.  425. 

Mr.  A.  Coulter  Wells  for  petitioner. 

No  counsel  appeared  for  respondent. 

June  5,  1916.    Denied. 


Marconi   Wibelbss   Telegbapk.  Compaivt 

OF  America,  Petitioner,  v.  Emil  J.  Simon. 

[No.  1013.] 

Petition  for  a  Writ  of  Certiorari  to  th'i 
United  States  [677]  Circuit  Court  of  Ap- 
peals for  the  Second  Circuit. 

Mr.  John  W.  Griggs  for  petitioner. 

Mr.  Walter  H.  Pumphrey  for  respondent 

June  12,  1916.    Granted. 


Watts,  Watts,  k  Company,  Petitioner,  ▼. 

Unions  Austbiaca  oe  Navigazione,  etc. 

[No.  1046.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Second  Circuit. 

Messrs.  J.  Parker  Kirlin,  John  M.  Wool- 
sey,  and  Mark  W.  Maclay,  Jr.,  for  peti- 
tioner. 

Mr.  Charles  S.  Haight  for  respondent. 

June  12,  1916.    Granted. 


Fields  S.  Pendleton,  Petitioner,  t.  Bennkb 

Line.     [No.  1041.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Second  Circuit. 

Messrs.  Avery  F.  Cushman  and  Harvey 
D.  Goulder  for  petitioner. 

Mr.  D.  Roger  Englar  for  respondent. 

June  12,  1916.  Granted,  conditioned  on 
the  petitioner  furnishing  a  bond  within 
twenty  days,  in  an  amount  to  secure  pay- 
ment of  the  judgment,  the  amount  of  the 
bond  to  be  satisfactory  to  the  circuit  ju- 
tice,  and  to  be  approved  by  him. 

S41  U.  8. 


1915. 


MEMORANDA  CASES. 


677-680 


United  States  kz  ul.  William  F.  Aaant 

T.  Fbanklin  K.  Laick,  Secretary  of  the 

Interior.    [No.  706.] 

Petition  for  a  Writ  of  Certiorari  to  the 
Court  of  Appeals  of  the  District  of  Co- 
lombia to  bring  up  the  whole  record  and 
cause. 

Messrs.  Samuel  Maddox,  H.  Prescott 
Gatley,  and  J.  H.  Camahan  for  petitioner. 

No  brief  filed  for  respondent. 

June  12,  1916.     Denied. 


[678]    Ctnthia    Lendbat,    Petitioner,    t. 

Chicago,  Bublington,  k  Quinot  Kail- 

BOAD  Compant.     [No.  764.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Seventh  Circuit. 

Mr.  E.  F.  Thompson  for  petitioner. 

Messrs.  F.  B.  Daniels  and  William  Burry 
for  respondent. 

June  12,  1916.    Denied. 


Baixdbis  Clothing  Compant,  Petitioner,  t. 

BUBICHAM-MUNGEB-ROOT  DbY  GOOD8  COM- 
PANY et  al.     [N08.  991,  992.] 

Petitions  for  Writs  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit 

See  same  case  below,  228  Fed.  470. 

Messrs.  James  H.  Harkless,  D.  R.  Hite, 
and  Clifford  Histed  for  petitioner. 

Mr.  Edwin  A.  Krauthoff  for  respondents. 

June  12,  1916.     Denied. 


John   W.   Enbight  et  al..  Petitioners,  t. 

Abthub  Yanoet.    [No.  1001.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit. 

See  same  case  below,  230  Fed.  641. 

Mr.  Grafton  L.  McGill  for  petitioners. 

Messrs.  John  Dymond,  Jr.,  and  A.  Oiffen 
Levy  for  respondent. 

June  12,  1916.     Denied. 


Union  Terminal  Company  et  al..  Petition- 
ers,  T.   TUBNSB   CONSTBUOnON   COMPANY. 

[No.  1006.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit. 

See  same  case  below,  229  Fed.  702. 

Mr.  J.  T.  O.  Crawford  for  petitioners. 

Mr.  Richard  P.  Marks  for  respondent. 

June  12,  1916.     Denied. 
•0  li.  ed. 


James  F.  Bishop,  Administrator,  etc.,  Pe- 

titiimer,  v.  Edwabd  B.  Pbyob,  Receiver, 

etc     [No.  1014.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Seventh  Circuit. 

Mr.  E.  F.  Thompson  for  petitioner. 

Messrs.  John  M.  Zane,  Charles  F.  Morse, 
and  James  L.  Minnie  for  respondent. 

[679]  June  12,  1916.     Denied. 


First  National  Bank  or  Roswell,  Peti- 
tioner,    V.     HoGQSON     Bbothebs.      [No. 
1019.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Eighth  Circuit. 
See  same  case  below,  231  Fed.  869. 
Mr.  William  C.  Reid  for  petitioner. 
Mr.  Selden  Bacon  for  respondents. 
June  12,  1916.     Denied. 


Joseph  F.  Wilson  ft  Company,  Claimant, 
etc..     Petitioner,    v.     South    Atlantic 
Steamship  Company.    [No.  1020.] 
Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit. 
See  same  case  below,  231  Fed.  101. 
Messrs.    J.    Parker    Kirlin,    William    R. 
Leaken,  and  Mark  W.  Maclay,  Jr.,  for  peti- 
tioner. 
Mr.  Samuel  B.  Adams  for  respondent. 
June  12,  1916.     Denied. 


Cobnelia  E.  Clement,  Petitioner,  t.  Maby 
Ann  Whittakeb,  etc.     [No.  1024.] 
Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Third  Circuit. 
See  same  case  below,  231  Fed.  940. 
Messrs.  Robert  H.  McCarter,  Gilbert  Col- 
lins, and  A.  V.  Dawes  for  petitioner. 
Mr.  Bayard  Stockton  for  respondent. 
June  12, 1916.    Denied. 


St.  Louis  Southwbstebn  Railway  Oom- 

PANY,  Petitioner,  t.  W.  H.  MdLAUGHLiN 

et  al.  [No.  1026.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit. 

See  same  case  below,  232  Fed.  678. 

Messrs.  Edward  A.  Haid,  A.  L.  Burford, 
and  W.  T.  Wooldridge  for  petitioner. 

Messrs.  George  B.  Rose,  W.  E.  Heming- 
way, J.  F.  Loughborough,  and  V.  M.  Miles 
for  respondents. 

[680]  Juno  12,  1916.    Denied. 
78  ISSS 


680-682 


SUPREBIB  OOURT  OF  THE  UNITED  STATES. 


Oor.  Tknc, 


ICiXOOiTADO  4  OoMPAinr,  PetiiioiMr,  t.  New 

YoiK  k  Cuba  Mail  Stkaimhif  Oompaht. 

[No.  1027.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  i^peale  for 
the  Second  Circuit. 

See  eame  case  below,  140  C.  0.  A.  877, 
226  Fed.  368. 

Mr.  Daniel  P.  Haji  for  petitioner. 

Messrs.  Norman  B.  Beecher  and  Boseoe 
H.  Hupper  for  respondent. 

June  12,  1916.    Denied. 


J.  Baoon  k  Sons,  Petitioner,  t.  Bobebt  C. 

KniKKAD.    [No.  1028.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Sixth  Circuit. 

See  same  case  below,  230  Fed.  362. 

Mr.  WUliam  Marshall  Bullitt  for  peti- 
tioner. 

Mr.  H.  H.  Nettelroth  for  respondent. 

June  12,  1016.    Denied. 


MoNTGOMBRY    Wabd    k    CoMPANT    (Inc.), 

Petitioner,  v.  Iowa  Washing  MAORuns 

CoMPAirr.    [No.  1036.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Second  Circuit. 

Messrs.  Taylor  E.  Brown  and  Clarence  E. 
Mehlhope  for  petitioner. 

Messrs.  Robert  H.  Parkinson  and  Wallace 
R.  Lane  for  respondent. 

June  12,  1016.     Denied. 


WBamroHOUBB  Elbctbxo  k  Makutaotobp 

ING  CoMPAirr  et  al..  Petitioners,  t.  Idaho- 

Obbgon  [681]  Light  k  Pow^  Compant 

et  al.     [No.  1030.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Ninth  Circuit. 

See  same  case  below,  180  C.  C.  A.  608, 
224  Fed.  30. 

Mr.  Charles  E.  Rushmore  for  petitioners. 

Messrs.  James  H.  Richards  and  OliTer  0. 
Haga  for  respondents. 

June  12,  1016.    Denied. 


Obahd   T^ruNK  Railway   Ooicpaht,   Peti- 
tioner, T.  UifiTBD  States.  [No.  1040.] 
Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  AppeiJs  for 
the  Seventh  Circuit. 
See  same  case  below,  220  Fed.  116. 
Mr.    G.    W.    Kretsinger,    Jr.,    lor    peti- 
tioner. 
No  appearance  for  respondent. 
June  12,  1016.    Denied. 
1SS4 


WmiAM  E.  D.  Stokbb  si  aL,  Petitfoaers, 

T.    HOWABD    H.     WiLIlAMS     0t    BL     [No. 

1042.] 

Petitk»  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  il^^peals  for 
the  Third  Circuit. 

See  same  case  below,  141  C.  C.  A.  146, 
826' Fed.  148. 

Mr.  Charles  L.  Craig  for  petitioners. 

Messrs.  Howard  H.  Williams  and  Georgt 
C.  Kobbi  for  respondents. 

June  12,  1016.    Denied. 


TwoBHKD  CoifCBKTB  Steel  Compant,  Peti- 
tioner,    T.     COBBUOATD     BaB     CoiiPANT. 
[No.  1046.] 
Petition  for  a  Writ  of  Certiorari  to  the 

United  States  Circuit  Court  of  AppeaUi  for 

the  Second  Circuit. 
See  same  case  below,  188  a  C.  A.  114,  222 

Fed.  514. 
Mr.  Fred  L.  Chappell  fdr  petitioner. 
Mr.  James  A.  Carr  for  respondent. 
June  12,  1816.    Denied. 


L.  P.  ft  J.  H.  Smith  CoicpAirr,  Petitioner, 

y.  Calumet  TBahbit  Compant,  etc    [No. 

1050.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  [682]  Circuit  Court  of  Ap- 
peads  for  the  Sixth  Circuit. 

See  same  case  below,  228  Fed.  481. 

Messrs.  Harvey  D.  Goulder  and  Frank  8. 
Mas  ten  for  petitioner. 

Messrs.  William  B.  Cadj  and  Francis  S. 
Laws  for  respondent. 

June  12,  1016.    Denied. 


Hawoood  k  Ayebt  Transit  Compaht,  Peti-' 
tioner,  y.  Mbaposd  Transpobtation  Cox- 
pant  [No.  1051] ;  and  Hawgooo  ft  Atbt 
Transit  Compant,  Petitioner,  t.  Eua 
Williams,  Administratrix,  etc  [No. 
1052]. 
Petition  for  Writs  of  Certiorari  to  the 

United  States  Circuit  Court  of  Appeals  for 

the  Sixth  Circuit 
See  same  ease  below,  282  Fed.  564. 
Mr.  Harvey  D.  Goulder  for  petitioner. 
Messrs.  Charles  E.  Kremer  and  Qeorgc  L 

Canfield  for  respondents. 
June  12,  1816.    Denied. 


Inditsndbnt  Pneumatic  Tool  Oompant, 

Petitioner,  t.  Burks  Elbctbio  Compant. 

[No.  1053.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  il^^peals  for 
the  Second  Circuit. 

Mr.  John  Robert  Taylor  for  petitioner. 

Mr.  Clifton  V.  Edwards  for  respondent 

June  12,  1016.    Denied. 

S41  V.  S. 


1916. 


MEMORANDA  CASB8. 


68»-«86 


OABia   H.   O0LLIN8   et   aL,    Pl&intifft   in  | 

Error,  t.  Rurus  PhillipbI  et  al.,  Tnu- 

teeiT  etc,  at  aL    [No.  173.] 

In  Error  to'  the  Supreme  Court  of  the 
State  of  Pennsylvania. 

Mesnrt.  Charles  K.  Robinson  and  Jas.  W. 
Collins  for  plaintiffs  in  error. 

Messrs.  William  J.  Kyle  and  John  0. 
Bayne  for  defendants  in  error. 

[683]  January  12,  1916.  Dismissed  with 
costs,  pursuant  to  the  Tenth  Rule. 

D.  F.  Deatoit,  Plaintiff  in  Error,  t.  Com- 

MONWEALTB  OF  KENTUCKY.      [No.  177.] 

In  Error  to  the  Court  of  Appeals  of  the 
State  of  Kentucky. 

Mr.  Edward  S.  Jouett  for  plaintiff  in 
•jrror. 

No  appearance  for  defendant  in  error. 

January  13,  1916.  Dismissed  with  costs, 
pursuant  to  the  Tenth  Rule. 


United    States,    Appellant,    t.    Melvxn 
Booth,'  Administrator,  etc.     [No.  192.] 
Appeal  from  the  Court  of  Claims. 
The  Attornqr  General  for  appellant. 
Mr.  George  A.  King  for  appellee. 
January  17,  1916.    Dismissed  on  motion 

of  counsel  for  the  appellant. 

J.  C.  McClelland,  as  State  Auditor  of  the 

State  of  Oklahoma,  et  al.,  Appellants,  t. 

MissouBi,   Kansas,  ft  Texas  Railway 

Company.  [No.  206.] 

Appeal  from  the  District  Court  of  the 
United  States  for  the  Western  District  of 
Oklahoma. 

Mr.  Charles  West  for  appellants. 

No  appearance  for  appellee. 

January  20,  1916.  Dismissed  with  costs, 
pursuant  to  the  Tenth  Rule. 


Rebecca  Loth  et  al.,  Plaintiffs  in  Error,  t. 

City  of  St.  Louis  et  al.    [No.  190.] 

In  Error  to  the  Supreme  [684]  Court  of 
the  State  of  Missouri. 

Mr.  David  Goldsmith  for  plaintiffs  in 
error. 

Mr.  Truman  P.  Toung  for  defendants  in 
error. 

January  20,  1916.  Dismissed  with  costs 
on  motion  of  counsel  for  the  plaintiffs  in 
error. 

i  Appearance  of  Rufus  Phillips,  William 
Phillips,  Phoebe  Jsne  Phillips,  Emily  Phil- 
lips, Ruth  PhiUips,  William  Phillips,  and 
Charles  Phillips,  trustees  under  the  will  of 
William  S.  Phillips,  etc.,  et  al.,  as  parties 
defendant  in  error  in  this  cause,  filed  and 
entered  on  October  12,  1915. 

•  Death  of  Olin  R.  Booth  suggested,  and 
appearance  of  Melven  Booth,  as  adminis- 
trator of  Olin  R.  Booth,  deceased,  as  the 
5 arty  appellee  herein,  filed  and  entered  on 
annary  10,  1916. 
•0  li.  ed. 


Chu  Tax  Noah,  Petitioner,  t.  SAimsL  W. 

Backus,  Commissioner,  ete.     [No.  768.] 

Petition  for  a  Writ  of  Certiorari  to  the 
United  States  Circuit  Court  of  Appeals  for 
the  Ninth  Circuit 

See  same  case  below,  141  CCA.  276, 
226  Fed.  446. 

Messrs.  0.  P.  Stidger  and  C.  L.  BouvS  for 
petitioner. 

No  appearanse  for  respondent. 

January  24,  1916.  Dismissed  on  motion 
of  counsel  for  the  petitioner. 


Mabtin   H.    Fbeb,   Plaintiff   in   Error,  T. 

Westebn   Union   Teleqbaph   Coicpany. 

[No.  226.] 

In  Error  to  the  Supreme  Court  of  the 
State  of  Wisconsin. 

Mr.  B.  I.  Salinger  for  plaintiff  in  error. 

Messrs.  Rush  Tsggart,  George  H.  Fea- 
rons,  and  Francis  Raymond  Stark  for  de- 
fendant in  error. 

January  24,  1916.  Dismissed  with  costs 
pursuant  to  the  Tenth  Rule. 


Anna   Toung,   Appellant,   t.    West   End 

SiSEET  Railway  Company  et  al.     [No. 

261.] 

Appeal  from  the  District  Court  of  the 
United  States  for  the  District  of  Massa- 
chusetts. 

Mr.  Burton  E.  Eames  for  appellant. 

Messrs.  Alex.  Britton,  Evans  Browne,  and 
Charles  A.  Williams  for  appellees. 

January  26,  1916.  Dismissed  with  costs, 
pursuant  to  the  Tenth  Rule. 


[685]  Amy  Cubtis,  Appellant,  t.  West  End 

Stbeztt  Railway  Company   et  al.    [No. 

252.] 

Appeal  from  the  District  Court  of  the 
United  States  for  the  District  of  Massa- 
chusetts. 

Mr.  Burton  E.  Eames  for  appellant. 

Messrs.  Charles  A.  Williams,  Alex.  Brit- 
ton, and  Evans  Browne  for  appellees. 

January  26,  1916.  Dismissed  with  eosts, 
pursuant  to  the  Tenth  Rule. 


Conqbeqaoi6n  ds  la  Mi8i6n  db  San  Vi- 
CENTK  DB  Paul,  Appellant,  v.  Fbanoisoo 
Reyxs  y  Muabbs  and  El  Banco  Espafiol 
FUipino.    [No.  868.] 

Appeal  from  the  Supreme  Court  of  the 
Philippine  Islands. 
No  appearance  for  appellant 
Mr.  Evans  Browne  for  appellees. 
February  21,   1916.     Docketed  and  dis- 
missed with  costs,  on  motion  of  counsel  for 
the  appellees. 

ISSft 


686-687 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Cot.  Tebm, 


W.  0.  Haoan  et  al.,  Plaintiffs  in  Error,  v. 

Madison  F.  Laskik.    [No.  313.] 

In  Error  to  the  Superior  Court  of  Cochise 
County,  State  of  Arizona. 

Mr.  Benjamin  C.  Tunison  for  plaintiffs  in 
error. 

No  appearance  for  defendant  in  error. 

February  21,  1016.  Dismissed  with  costd, 
on  motion  of  counsel  for  the  plaintiffs  in 
error. 


Southern  Obbgon   Company,  Plaintiff   in 

Error,  t.  W.  W.  Qagb,  Sheriff  of  Coos 

Counly,  Oregon  [No.  544.] 

In  Error  to  the  Supreme  Court  of  the 
State  of  Oregon. 

Messrs.  Joseph  Simon  and  John  M.  Gear- 
in  for  plaintiff  in  error. 

No  appearance  for  defendant  in  error. 

February  21,  1916.  Dismissed  with  costs, 
on  motion  of  counsel  for  the  plaintiff  in 
error. 


[686]  Erie  Railboad  Company,  Plaintiff 
in  Error,  ▼.  George  Prowski,  as  Admin- 
istrator, etc.  [No.  584.] 
In  Error  to  the  Supreme  Court  of  the 

State  of  New  York. 
Mr.  George  F.  Brownell  for  plaintiff  in 

error. 
No  appearance  for  defendant  in  error. 
February  21,  1916.    Dismissed  with  costs, 

on  motion  of  coimsel  for  the  plaintiff  io 

error. 


CuBnci  Brothers  Company,  Appellant,  v. 

Harry  E.  Barnard  et  al.  [No.  243.] 

Appeal  from  the  United  States  Circuit 
Court  of  Appeals  for  the  Seventh  Circuit. 

Mr.  Lawrence  Maxwell  for  appellant. 

Mr.  Bert  Winters  for  appellees. 

February  23,  1916.  Dismissed  without 
costs  to  either  party«  per  stipulation  of 
counseL 


State  of  Sottth  Dakota,  Complainant,  t. 

Charles  H.  Cassill.    [No.  13,  Original.] 

Messrs.  Cllirence  C.  Caldwell,  Robert  J. 
Gamble,  and  Edward  E.  Wagner  for  com- 
plainant. 

No  appearance  for  respondent. 

February  29,  1916.    Dismissed  per  stipu- 
lation of  counseL 
19S6 


Northern  Express  Compakt,  Plaintiff  in 

Error,  v.  State  or  Washington.     [No. 

298.] 

In  Error  to  the  Supreme  Court  of  the 
State  of  Washington. 

See  same  case  below,  first  appeal,  80  Wash 
309,  141  Pac  757 ;  second  i^peal,  81  Wash. 
701,  143  Pac  99. 

Mr.  Charles  W.  Bunn  for  plaintiff  in  er- 
ror. 

No  appearance  for  defendant  in  error. 

February  29,  1916.  Dismissed  with  costs, 
on  motion  of  counsel  for  the  plaintiff  in 
error. 


Joe  Judge  and  M.  Buntinn;,  Plaintiffs  in 

Error,  v.  P'rank  M.  Powers,  Judge,  etc, 

et  al.  [No.  10.] 

In  Error  [687]  to  the  Supreme  Court  of 
the  State  of  Iowa. 

See  same  case  below,  156  Iowa,  251,  136 
N.  W.  315,  Ann.  Cas.  1915B,  280. 

Messrs.  B.  I.  Salinger  and  Frederick  S. 
Tyler  for  plaintiffs  in  error. 

No  appearance  for  defendants  in  error. 

March  2,  1916.  Dismissed  with  costs,  on 
motion  of  counsel  for  the  plaintiffs  in  error. 


National  Surety  Company  et  al..  Plain- 
tiffs in  Error,  v.  United  States  to  the 
USE  OF  J.  A.  HoLUXGER  et  al.  [No.  2G7.1 
In  Error  to  the  United    States    Circuit 

Court  of  Appeals  for  the  Third  Circuit. 
See  same  case  below,  first  appeal,  130  C. 

C.  A.  65,  213  Fed.  429. 

Mr.  A.  C.  Stamm  for  plaintiffs  in  error. 
Mr.  John  E.  Fox  for  defendants  in  error. 
March  6;  1916.     Dismissed  with  costs,  on 

motion    of    counsel    for    the    plaintiffs    in 

error. 


William  A.  Stowe,  Plaintiff  in  Error,  t. 

Emma  F.  Taylor.   [No.  221.] 

In  Error  to  the  Superior  Court  of  the 
State  of  Massachusetts. 

Mr.  Hollis  R.  Bailey  for  plaintiff  in  error. 

Mr.  James  H.  Vahey  for  defendant  in 
error. 

March  8,  1916.  Dismissed  with  costs,  on 
motion  of  counsel  for  the  plaintiff  in  error. 


J.   P.   Cunningham,   Appellant,   v.   J.   P. 

Floxtrnoy,  Sheriff,  etc.,  et  al.  [No.  297.] 

Appeal  from  the  District  C-ourt  of  the 
United  States  for  the  Western  District  of 
Louisiana. 

Mr.  Taliaferro  Alexander  for  appellant 

No  appearance  for  appellees. 

March  14,  1916.  Dismissed  with  costs, 
pursuant  to  the  Tenth  Rule: 

14 1  U.  6. 


1915. 


MEMORANDA  CAS£8. 


087-e90 


Mabbaohusettb  Bonding  &  Insubance 
CtoMFANT,  Plaintiff  in  Error,  ▼.  Realty 
TtoST  OoMPAirT  [688]  et  &1.  [No.  304.] 
In  Error  to  the  Supreme  Ck>urt  of  the 

State  of  Georgia. 
See  same  case  below,  142  Ga.  400,  83  S. 

E.  210. 

Messrs.  John  D.  Little,  Arthur  G.  Powell, 

Marion    Smith,    Max    F.    Goldstein,     and 

Eugene  Dodd  for  plaintiff  in  error. 
Messrs.  Hudson  Moore,  William  A.  Wim- 

bish,  and  Leonard  Haas  for  defendants  in 

error. 

March  15,  1016.     Dismissed  with  costs, 

un  motion  of  counsel  for  the  plaintiff  in 

error. 


JuDSON  Habmon,  Receiver,  etc..  Plaintiff  in 
Error,  ▼.  Andrew  C.   Bbown,  Adminis- 
trator, etc.    [No.  738.] 
In  Error  to  the  Supreme  Sourt  of  the 

State  of  Indiana. 
Mr.  John  B.  Elam  for  plaintiff  in  error. 
No  appearance  for  defendant  in  error. 
March  17,  1016.     Dismissed  with  costs, 

per  stipulation. 


Feancisoo  Goenaoa  t  Olba  et  al.,  Appel- 
lants, V.  EusA  Gallabdo  t  Seart  et  al. 
[No.  316.] 
Appeal  from   the  District  Court  of  the 

United  States  for  Porto  Rico. 
Mr.  N.  6.  K.  Pettingin  for  appellants. 
Messrs.  Frederic  R.  Coudert  and  Howard 

Thayer  Kingsbury  for  appellees. 
March  17,  1016.    Dismissed  with  costs,  on 

motion  of  counsel  for  the  appellants. 


Geobqe  Wakefield,  Appellant,  y.  John  J. 

Bradley,  Marshal,  etc.,  et  al.   [No.  032.] 

Appeal  from  the  District  Court  of  the 
United  States  for  the  Northern  District  of 
Illinois. 

No  appearance  for  appellant. 

The  Attorney  General  and  the  Solicitor 
General  for  appellees. 

April  3,  1016.  Docketed  and  dismissed 
with  costs,  on  motion  of  counsel  for  the 
appellees. 


[689]  Lucius  E.  Judson,  as  Trustee,  etc., 
Petitioner,  ▼.  William  A.  Nash,  as  Trus- 
tee, etc.,  et  al.  [No.  276.] 
On    Writ   of    Certiorari    to    the    United 

States   Circuit   Court   of   Appeals   for   the 

Second  Circuit. 

See  same  case  helow,   130  C.  C.  A.  288, 

213  Fed.  774. 

Mr.  Oscar  A.  Lewis  for  petitioner. 
Mr.  John  M.  Bowers  for  respondents. 
April  3,  1016.  Dismissed  with  costs,  on 

motion  of  counsel  for  the  petitioner. 

60  li.  ed. 


WnjiAM  Whallet,  Plaintiff  in  Error,  t. 

Philadelphia  k  Reading  Railway  Com- 
pany.    [No.  626.] 

In  Error  to  the  Supreme  Court  of  the 
State  of  Pennsylvania. 

See  same  case  below,  248  Pa.  208,  03  Atl. 
1016. 

Messrs.  John  C.  Bell  and  A.  Frank  Ashton 
for  plaintiff  in  error. 

Mr.  William  Clarke  Mason  for  defendant 
in  error. 

April  3,  1016.  Dismissed  with  costs,  on 
motion  of  counsel  for  the  plaintiff  in  error. 


Chin  Quock  Wah»  Appellant,  v.  Henby  M. 

White,  Commissioner,  etc.    [No.  713.] 

Appeal  from  the  District  Court  of  the 
United  States  for  the  Western  District  of 
Washington. 

Mr.  Joseph  F.  O'Connell  for  appellani. 

No  appearance  for  appellee. 

April  3,  1016.  Dismissed  with  costs,  pur- 
suant to  the  Tenth  Rule. 


M.  Heimeb,  Plaintiff  in  Error,  v.  State  ov 

Gboboia.     [No.  034.] 

In  Error  to  the  Court  of  Appeals  of  tha 
State  of  Georgia. 

No  appearance  for  plaintiff  in  error. 

Mr.  William  Wallace,  Jr.,  for  defend- 
ant in  error. 

April  5,  1016.  Docketed  and  dismissed 
with  costs  on  motion  of  counsel  for  defend- 
ant in  error. 


[690]    American   Surety   Company  of 
New  York,  Plaintiff  in  Error,  v.  State 
OF  Idaho,  to  and  for  the  use  and  bene- 
fit OF  Clara  Mills,  et  al.    [No.  609.] 
In  Error  to  the  Supreme  Court  of  the 

State  of  Idaho. 
Messrs.  James  H.  Richards  and  Oliver  O. 

Haga  for  plaintiff  in  error. 
No  appearance  for  defendant  in  error. 
April   17,   1916.     Dismissed,   each   party 

paying   its   own   costs,   per   stipulation   of 

counsel. 


S.  S.  White  Dental  Manufacturing  Com- 
pany, Petitioner,  v.  Oscar  H.  Pieper  et 
al.,  etc.  [No.  718.] 
On    Writ    of    Certiorari    to    the    United 

States    Circuit   Court   of   Appeals   for   the 

Seventh  Circuit. 

See  same  case  below,  228  Fed.  30. 
Messrs.  Henry  N.  Paul,  Jr.,  Jos.  C.  Fra- 

ley,  and  Edward  Rector  for  petitioner. 
Mr.  Charl^  A.  Brown  for  respondents. 
April  17,  1916.    Dismissed  with  costs,  on 

motion  of  oounsel  for  the  petitioner. 

tSST 


690-692 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Oct.  Tknc, 


Qeobqb  W.  Caldwkll  et  aL,  etc..  Plaintiffs 

in  Error,  y.  Qbobob  W.  Donaohxt  et  al. 

(No.  461.] . 

In  Error  to  the  Supreme  Court  of  the 
State  of  Arkansaa. 

Mr.  J.  W.  Blaekwood  for  plaintiffs  in 
error. 

Messrs.  W.  E.  Hemingway,  G.  B.  Rose, 
and  J.  F.  Loughborough  for  defendants  in 
error. 

April  24,  1916.  Dismissed  with  costs,  on 
motion  of  counsel  for  the  plaintiffs  in  error. 


Swift  &  CoicPAinr,  Plaintiff  in  Error,  t. 

AoNBS  Catani.    [No.  789.] 

In  Error  to  the  Supreme  Court  of  the 
State  of  PennsylTania. 

See  same  case  below,  251  Pa.  62,  L.ILA. 
— ,  — ,  96  Atl.  981. 

Mr.  Charles  B.  Lenahan  for  plaintiff  in 
«rror. 

Mr.  Rush  Trescott  for  defendant  in  error. 

April  24,  1916.  Dismissed  per  stipula- 
tion. 


[691]    JoHif    F.    CUB8IN8,   Appellant,    v. 

Mississippi  Riveb  Commission  et  al.  [No. 

89.] 

Appeal  from  the  District  Court  of  the 
United  States  for  the  Western  District  of 
Tennessee. 

Mr.  Bamette  E.  Moses  for  appellant. 

Mr.  H.  F.  Roleson  for  appellees. 

April  24,  1916.  Dismissed  with  costs, 
pursuant  to  the  Tenth  Rule. 


Ex  PABTB:  In  the  Mattes  of  the  Motion 

PicruBB  Patents  Company,  Petitioner. 

[No.  24,  Original.] 

Petition  for  Writ  of  Mandamus. 

Mr.  Melville  Church  for  petitioner. 

No  appearance  for  respondent. 

April  24,  1916.    Dismissed  on  motion  of 
counsel  for  petitioner. 


James  F.  Thbift,  Comptroller  of  the  city 

of  Baltimore,  Plaintiff  in  Error,  v.  Philip 

D.  Laibd.     [No.  379.] 

In  Error  to  the  Court  of  Appeals  of  the 
State  of  Maryland. 

See  same  case  below,  125  Md.  66,  98  Atl. 
449. 

Messrs.  Alexander  Preston  and  S.  S.  Field 
for  plaintiff  in  error. 

Mr.  W.  Cabell  Bruce  for  defendant  in 
error. 

April  28,  1916.  Dismissed  with  costs,  on 
motion  of  counsel  for  the  plaintiff  in  error. 
1SS8 


United  States  of  Amebiga,  Appellant,  ▼. 
Lake    Shobe    k    Mighioan    Sodthbbii 
Railway  Company  et  al.     [No.  846.] 
Appeal  from  the  District  Court  of  the 

United  States  for  the  Southern  District  of 

Ohio. 
The  Attorney  General  for  appellant. 
No  appearance  for  appellees. 
May   1,  1916.     Dismissed  on  motion  of 

counsel  for  the  appellant. 


Pennsylvania  Railboad  Company,  Plain* 
tiff  in  Error,  v.  Kate  Seteba,  as  Admin- 
istratrix, [692]  etc.     [No.  238.] 
In  Error  to  the  Supreme  Court  of  tht 
SUte  of  New  York. 

See  same  case  below,  in  Appellate  Diri- 
sion,  162  App.  Div.  927,  147  N.  Y.  Supp. 
1140. 

Messrs.  Frederic  D.  McKenn^  and  Har- 
old J.  Adams  for  plaintiff  in  error. 
No  appearanos  for  defendant  in  error. 
May  1,  1916.     Dismissed  with  costs,  on 
motion  of  counsel  for  the  plaintiff  in  er- 
ror. 


A.  S.  Down,  Re<jeiver,  etc.,  et  al.,  Plaintiff* 

in  Error,  ▼.  Unitid  Mine  Wobkebs  of 

Amebioa  et  al.     [No.  771.] 

In  Error  to  the  District  Court  of  the 
United  States  for  the  Western  District  of 
Arkansas. 

Mr.  James  B.  MoDonough  for  plaintiffs 
in  error. 

Messrs.  Qeorge  L.  Grant  and  Henry  War- 
rum  for  defendants  in  error. 

May  2,  1916.  Dismissed  with  costs  on 
motion  of  counsd  for  the  plaintiffs  in  er- 
ror. 


Maes  Cbaig,  Plaintiff  in  Error,  t.  Com- 
monwealth or  Kentucky.     [No.  272.] 
In  Error  to  the  Hardin  County  Quarter- 
ly Court,  the  State  of  Kentucky. 

Mr.  Hobson  L.  James  for  plaintiff  in 
error. 

Mr.  Arthur  H.  Mann  for  defendant  in 
error. 

May  3,  1916.  Judgment  reversed  with 
costs,  and  cause  remanded  for  further  pro- 
ceedings upon  confession  of  error  by  the 
defendant  in  error,  and  on  motion  of  coun- 
sel for  the  defendant  in  error. 


PoBTBB    Lawbon,    Plaintiff    in    Error,    ▼. 

State  or  Louisiana.     [No.  377.] 

In  Error  to  the  Supreme  Court  of  the 
State  of  Louisiana. 

Mr.  Taliafero  Alexander  for  plaintiff  iE 
error. 

No  appearance  for  defendant  in  error. 

May  4,  1916.    Dismissed  with  costs,  pur- 
suant to  the  Tenth  Rule. 

S41  U.  8. 


1916. 


HEMOBANDA  CASES. 


693,  694 


[M8]  Unro  STAm  et  al^  i4>pellant%  v. 

St.  Louzb»  Ibon  Mouhtahi  ,  ft  Southbh 

Railwat  CkniFANT  et  al.    [No.  806.] 

Appeal  from  the  District  Court  of  the 
United  States  for  the  Sartem  District  of 
lUiiioia. 

See  same  case  below,  217  Fed.  80. 

Ihe  Attorn^  General  for  appellants. 

Messrs.  Edw.  A.  Haid  and  Henry  Q.  Her- 
bel  for  appelleea. 

May  22,  1916.  Dismissed  on  motion  of 
counsel  for  the  appellants. 


CntciifNATi,  New  Oblbans,  4  Texas  Pa- 
ciFio  Railway  Coicpakt,  Plaintiff  in  Er- 
ror, T.  E.  G.  Mabsinqalb,  as  Adminis- 
trator, et  al.     [No.  887.] 
In  Error  to  the  Court  of  Appeals  of  the 

State  of  Kentucky. 

See  same  case  below,  161  Ky.  640,  171 

S.  W.  480. 

Messrs.  John  Galrin  and  Edward  Colston 

for  plaintiff  in  error. 
Mr.  Jamea  N.  Sharp  for  defendants  in 

€rror. 

May  22,  1916.    Dismissed  with  costs,  on 

motion  of  counsel  for  the  plaintiff  in  error. 


Postal  Telbqbaph  Compaitt,  Appellant,  t. 

ClTT  OF  POBlLAlfD.      [No.  878.] 

Appeal  from  the  District  Court  of  the 
United  States  for  the  District  of  Oregon. 

Messrs.  William  D.  Fenton  and  Alfred 
A.  Hampson  for  appellant. 

No  appearance  for  appellee. 

June  6,  1916.  Dismissed  with  costs,  on 
motion  of  counsel  for  the  appellant. 


I^IOOLA  Cbbbi,  as  Italian  Consular  Agent, 

etc.    Plaintiff    in    Error,    t.    Giovanni 

Paoano,  Administrator,  etc.     [No.  908.] 

In  Error  to  the  Supreme  Court  of  the 

State  of  Ohio. 

Mr.  Newton  D.  Bak«r  for  plaintiff  in  er- 
ror. 
«0  Ii.  ed. 


No  counsel  appeared  for  defendant  in  er- 
ror. 

June  6,  1916.  Dismissed  with  costs,  on 
motion  of  counsel  for  the  plaintiff  in  error. 


[604]  Chaujbs  Fbank  et  al..  Appellants, 

T.  Union  PAcmo  Bailboao  Coicpant  et 

al.  [No.  727.] 

Appeal  from  the  United  States  Circuit 
Court  of  Api^eals  for  the  Eighth  Circuit. 

Messrs.  Samuel  Untermyer,  Louis  Mar- 
shall, Myron  L.  Learned,  and  Abraham 
Benedict  for  appellants. 

Mr.  N.  H.  Loomis  for  appellees. 

June  12,  1916.  Dismissed  with  costs,  on 
motion  of  oounsd  for  the  appellants. 


GaST  RkALTT  k  iNTBSnCKNT  COHPANT  et  al.. 

Plaintiffs  in  Error,  t.  Sohneidbb  Gean- 

ITB  Company.    [No.  211.] 
Error  to  state  court — rehearing. 

In  Error  to  the  Supreme  Court  of  the 
State  of  Missouri  to  review  a  judgment 
which  affirmed  a  judgment  of  the  St.  Louis 
City  Circuit  Court  in  favor  of  plaintiff  in 
a  suit  to  collect  a  paving  tax.  On  petition 
for  rehearing. 

See  ante,  528. 

Messrs.  Hickman  P.  Rodgers,  William  K. 
Koemer,  Charles  H.  Danes,  Truman  P. 
Toung,  Frederick  W.  Lehmann,  and  Benja- 
min Schnurmacher  for  the  petition. 

Messrs.  Robert  A.  Holland,  Jr.,  Thomas  G. 
Rutledge,  Jacob  M.  Lashly,  and  David  Gold- 
smith, opposed. 

March  20,  1916.  Memorandum  by  Mr. 
Justice  Holmes:  Our  decision  is  limited, 
of  course,  to  the  particular  ordinance  before 
the  court;  to  the  assessment  of  three  quar- 
ters, determined  in  the  mode  described,  and 
to  those  who,  like  the  plaintiff  in  error,  have 
suffered  from  the  inequalities  that  have  no 
justification  in  law. 

Motion  for  leave  to  file  petition  denied. 

1S89 


APPENDIX  L 


frxi^xMmt  Cmirt  of  tlie  WLniUA  J(tate& 


1918. 


ORDER. 


n  is  ordflnd  thai  gtMral  ord«  in  iNuikmptej  No.  tl  b«  Miimdsd  to  •■  t»  ndL 
M  foUowt! 

XXL  Proof  of  DdMe. 

1.  DepoiitloBt  to  prore  claims  against  a  bankrupt's  estate  shall  be  eorroetlj  entitled 
in  the  court  and  in  the  cause.  When  made  to  proTe  a  debt  due  to  a  partnership,  it 
must  appear  on  oath  that  the  deponent  is  a  member  of  the  partnership;  when  made 
bj  an  agent,  tiie  reason  the  deposition  Is  not  made  by  the  claimant  in  person  must  be 
stated;  and  when  made  to  prore  a  debt  due  to  a  corporation,  the  deposition  shall  be 
made  bj  the  treasurer,  or,  if  the  corporation  has  no  treasurer,  bj  the  officer  whose  duties 
most  nearly  correspond  to  those  of  treasurer;  if  the  treasurer  or  corresponding  officer 
is  not  within  the  distriet  wherein  the  bankruptcy  proceedings  are  pending,  the  deposition 
may  be  made  by  some  officer  or  agent  of  the  corporation  having  knowledge  of  the  facts. 
Depositions  to  prore  debts  existing  in  open  account  shall  state  when  the  debt  became  or 
will  become  due;  and  if  it  consists  of  items  maturing  at  different  dates  the  arerage  due 
date  shall  be  stated,  in  default  of  which  it  shall  not  be  necessary  to  compute  interest 
upoxk  it.  All  such  depositions  shall  oontain  an  arerment  that  no  note  has  been  reeetved 
for  such  account,  nor  any  judgment  rendered  thereon.  Proofs  of  debt  recelTed  by  any 
trustee  shall  be  deUrered  to  the  retose  to  iHmm  the  eaass  is  relsrred. 

Wovemhmr  1, 1919. 
••  Ii.  •«.  IS41 


APPENDIX  IL 


fupvtnu  Court  of  tht  WiniUA  J^tateSt 


lauw 


osxAii,  jonm  bvobbb 


I^OB  Hm  ooBTHiIng  of  th«  court  on  Juiiuurj  t,  Ult,  tiM  Ohitf  Jwftte  nidi 

Owmtlmmm  of  the  Bar: 

It  giTW  me  the  profoundeet  eorrow  to  itote  tlie  wrenuioe  whldi  kas  taken  pltee  el 
tkoee  ties  of  penonal  affection  and  respect  which  united  m  to  our  brother,  Mr.  Juti« 
Lamar,  earned  by  hie  untimely  death  last  night.  And  thhi  eorrow,  I  know,  ia  diared 
by  hia  brethren  of  the  Bar,  to  whom  he  wai  to  rtrongly  and  derotedfy  attadied,  and 
willy  I  am  confident,  be  participated  in  by  aU  kia  eoontrymen  aa  they  eome  to  fed  tiial 
the  country  will  be  for  the  future  depriyed  of  the  bleetinge  which  would  haTc  coom 
from  the  future  diacharge  d  hia  dutiea  aa  a  Biember  of  thia  court  with  that  oon^lenoaf 
ability  and  enlightened  derotion  to  duty  to  clearly  manifeited  during  the  period  wUflk 
kaa  gone  by  since  he  took  up  hia  dutiea  here  thia  day  fiye  yeara  ago. 

The  funeral  ceremonies  will  take  place  at  kia  koma  In  Ai^guata,  Qeoigia,  on  Wednesdsy 
aazt  Mr.  Justice  Van  Defanter,  Mr.  Justice  Pitaey,  and  Mr.  Justice  IfeBeynolda  will, 
aa  a  committee  appointed  by  the  court,  attend  the  funeral  aa  its  representatlTea.  As  a 
maris  of  the  affection  we  hon  him  and  of  respect  for  hia  memoiy,  ttie  court  will  stsad 
adjourned  until  Thursday  morning  nesL 

The  bar  of  the  Supreme  Court  of  the  United  Statea  and  tha  officers  of  the  aoort  mel 
hi  the  court-room  in  the  Capitol  at  12  o'doek,  on  Saturday,  May  87,  191t. 

On  motion  of  Mr.  Solicitor  General  Dafis,  Honorable  Hoke  QmiXk  waa  lintii 
ehairman  and  Mr.  James  D.  Maher  was  elected  sseretaij. 

On  taking  the  chair.  Senator  Smith  saldt 

We  meet  to^y  as  members  of  the  bar  of  the  Supreme  Court  to  pay  tribvie  to  the 
saemory  of  Mr.  Justice  Lamar.  He  took  kia  seat  on  this  bench  January  S^  1911.  The 
sbkness  which  stepped  his  work  b^gan  in  the  summer  of  1916.  In  this  short  period 
he  fixed  his  place  among  the  great  justices  of  this  court. 

Those  of  us  who  practised  law  with  him  in  his  natiye  state,  and  before  him  wbSlk 
he  was  a  justice  of  the  supreme  court  of  Qeorgia,  were  not  surprised  at  the  eaae  with 
whkh  he  won  the  confidence  and  admiration  d  the  bar  of  the  nation. 

Jooeph  Rucker  Lamar  was  bom  in  Elbert  county,  Qeorgia.    Hia  parenta  were  Msiy 
Booker,  daughter  af  a  snoeessful  planter  and  banker,  and  Jamea  &  lamar,  a  wfrfir^** 
dtkeOospeL 
1141  141  U.  1. 


He  WAS  educated  la  tlM  best  echooli  and  fti  the  UaiTeriltf  ef  Geoifift. 
and  the  remoTal  of  hie  father  to  LouisTille,  Kentaofcj*  to  take  diarge  of  a  churoh  ther% 
forced  him  to  leaTe  the  Universitj  before  graduatioa.  He  eabeeqneiitly  graduated  fron 
Bethany  College  Weet  Virginia.  He  studied  law  at  Waihington  and  Lee  University, 
and  was  admitted  to  the  bar  at  Angnstay  Qeorgia»  in  April,  1878b 

Possessed  of  a  bright^  logical  mind,  a  retentire  memory,  and  a  thirst  for  knowledgs^ 
he  applied  himself  with  inteass  seal  to  the  study  of  law.  He  mads  n^iid  progress  In 
his  profession,  and  sooo  became  one  of  the  leaders  of  a  bar  of  imusaal  ability. 

While  his  Ills  was  dsroted  to  the  Bar  and  the  bench,  his  eoltore  was  broad,  and  hs 
did  not  faU  to  SMst  the  highest  re^onsibilities  of  a  dtiieiL  Ho  took  aettTe  interest 
in  erocy  movement  to  ssrve  his  fellowmen.  He  found  time  to  teach  a  BlUo  class  In 
his  father's  ehnish,  and  gavo  to  tho  dass  his  rich  knowledgs  oi  the  fieriptnres  and  his 
general  leamlig. 

BeqHmdiDg  to  the  call  of  his  feUow  eitisens,  he  served  two  terms  in  the  Georgia  Icgia* 
latore,  from  1888  to  1889.  Many  gifted  men  were  his  eoUeaguesb  but  all  gave 
him  first  pUcs  as  a  profound  lawyer. 

He  was  the  author  of  several  important  acts  of  Judicial  reform,  and  was  subsequently 
selected  as  one  of  the  three  commissioners  to  codify  the  laws  of  Georgia.  While  engaged 
in  this  service  he  prepared  several  other  important  acts  simplifying  Judicial  procedure. 

In  the  division  of  the  work  of  tho  commimion,  revision  of  the  Oivil  Code  was 
asBigned  to  Mr.  Lamar.  The  scheme  of  the  original  Oode  embodied  the  statutes  d 
the  state,  sad  common-law  principles,  in  sections  clearly  and  briefly  sKpressed.  Mr. 
Lamar  completed  the  Oode  to  date^  addii^,  aceording  to  the  original  scheme,  all 
material  furnished  by  dedsicps  of  the  suprsme  court.  The  manner  In  which  he  did 
this  work  elssms  him  as  one  of  the  most  capable  of  civil  code  authors. 

He  was  appointed  in  January,  1903,  a  justice  of  the  state  supreme  court,  ffis  talents 
and  his  temperament  peculiarly  fitted  him  for  the  bench.  He  loved  judicial  labor. 
While  upon  the  supreme  court  bench  of  Georgia  I  heard  him  say  that  he  was  almost 
afraid  to  admit  how  much  he  enjoyed  the  work.  In  two  years  he  wrote  more  than 
two  hundred  opinions.  Ths  reader  of  his  opinions  cannot  fail  to  be  impreesed  with 
the  leamiag  of  the  writer,  and  with  the  clear  and  striking  form  or  coq^ression,  carrying 
satisfiustoiy  and  coavinciag  reasoning. 

His  eonsdentious  devotion  to  the  duties  of  the  ofiice  taxed  his  health,  and  by  advice 
of  his  physician,  he  resigned  in  April,  1906.  Speaking  of  his  resignation,  his  learned 
sssociate  upon  the  beach.  Judge  Andrew  Cobb^  wrote:  "His  retirement  from  the  bench 
of  the  state  supreme  court  was  the  occasion  of  the  greatest  rcgrst  ca  the  part  of  his 
assodatssy  who  had  beea  so  much  aided  by  his  presence  among  them,  and  called  forth 
expressions  of  the  sincerest  regret  from  members  of  the  bar." 

Immedlatdy  upon  his  reslgnatloa  Judge  Lamar  returned  to  the  active  practice  of 
law  at  Augusta,  Georgia. 

As  a  practitioner  at  the  bar,  Mr.  Lamar  had  fsw  equals.  He  was  always  thoroughly 
piepared,  the  entire  master  of  the  case  In  head.  Whether  discussing  law  or  facts, 
before  court  or  Jury,  he  was  dear,  brillisat,  liQgical,  and  convincing.  When  you  opposed 
bim,  yon  Islt  his  power,  but  appreciated  his  courte^f  and  perfect  fairness.  When 
associated  with  him,  there  was  a  ssnss  of  rdiof.  Tou  could  bs  certain  that  his  part  of 
tho  trial  would  bs  q;>leadidly  sustaiaed,  with  aever  the  posdbility  of  bluader. 

Jnsties  Lamar  was  a  sma  of  great  determination  and  perfect  eoarsf^  but  he  was 
so  gsatls  sad  m*fiJ^»^  that  sJl  who  know  him  loved  him.  In  this  he  was  not  difTerent 
from  his  great  v<»»f»n*tij  L.  Q»  0.  Laauur.  I  once  heard  President  Cleveland  compare 
John  O.  Carlisle  aad  L.  Q.  a  Lamar.  Ho  paid  tribute  to  the  great  ability  of  cash, 
and  thea  said  'l>ut  I  loved  Lodus  Lamar.** 

Prssidsat  Taft,  Just  after  his  eleetkm,  speat  part  sf  the  wlat«  at  Augusta.  He  was 
frequcatly  throwa  with  Mr.  Lamar. 

Fairly  aoqualated  with  Preddeat  Taft  from  his  Aeddcns  ss  efareult  eourt  Judgs^ 
bdlsvlag  that  a  great  Judge  would  recogalse  tho  Judieial  quallficatloas  of  aaother,  sad 
kaowti^  Judge  Lamar,  I  that  early  featured  the  opiaka  thatg  If  a  vacaacy  oesarrsd 
••  li.  a«.  ISM 


tlM  SvpraM  Govt  t»  wUA  «ba  PMldMi  eooU  affpoM  a  8o«lh«a 
k€  would  BUM  Jm  Lunar. 

laaBSfPir  to  an  inquiry  by  PtcddantTMaald^f  for  in  nptnitm  ■■  tn  We  mnltimifloM 
lor  jvttiM  of  tlio  Supfonio  Ooort^  the  Hon.  Joseph  B,  Oanning»  fittoi  bj  intiaMlt 
aequaintaneo  uid  othonriao  to  giTo  <^inloa«  aamrwedt  In  tha  qmoMtrj  of 
makoop  I  do  not  know  wliieh  most  to  oommwidi  tho  nuui  or  tfba  lawyw.  His 
lusnihig  is  Tsst;  his  fadlitj  for  abqoiring  mors^  remsriaUa  If  I  wsrs  sailed  npon 
to  eonstmet  a  model  for  a  Jndgs^  I  woold  take  Lamar  as  hs  is»  oaHtj  sh^pinf  off 
•cnneidiat  of  his  too  pafwsUkiwg  searoh  for  flnalitj  of  tnith»  wfaish  sometimes  ksips 
bim  reaching  out  bejond  tho  sea  waaik,  i^ere  other  eoDsellsnt  Jndgm  woold  be  wflUiv 
to  drop  aadior." 

The  ConsUtution  of  the  United  States  is  the  greatest  pc^tieal  legacy  sfsr  ^twm  to 
a  people.  Mr.  Justice  Lamar  was  dsfoted  to  the  Oonstitiition.  snd  to  aU  ths  institntUms 
of  his  eovntrj. 

He  was  fifty-four  years  of  sge  when  he  began  hia  waik  here.  Tie  him  II  was  tte  IdssI 
aenrice,  and  to  ns  he  waa  the  ideal  Judge. 

<<When  the  ermine  fell  upon  hia  ahoulders  It  toadied  nothing  Isss  apotleas  than  ttseU* 

''How  great  is  the  office  of  judges  and  the  honor  of  him  wlio  wor^i^  fills  it.  Then 
is  nothing  beyond  ft" 

We  honor  his  memory,  snd  mourn  that  he  was  not  permitted  to  sarre  the  allotted 
period  ol  threescore  years  and  ten. 

In  the  language  of  the  bar  of  hia  own  atate^  we  can  truthfully  aay  sf  himt 

"Great  Jurist^  great  Judge,  great  man,  thou  hast  done  weU." 
On  motion  of  Kr.  W.  O.  Brant^y,  the  Chair  appointed  a  Committee  on  Besolutions: 


OOMMimEB  C^  BE80LDTI0N& 


Mr.  Wm.  O.  Brantley,  CShairman;  Mr.  Thomaa  W.  Hardwiek;  Mr.  John  W.  Davia; 
Mr.  Nathaniel  Wilaon;  Mr.  Frederick  W.  Lehmann;  Mr.  Frederic  D.  McKenney;  Mr. 
Hannia  Taylor;  Mr.  Alfred  P.  Thom;  Mr.  Hcniy  E.  Davis;  Mr.  8.  8.  Qregory. 


Mr.  Wm.  O.  Brantley*  for  the  0(»nmittee^  preeented  the  following! 

BBSDLDTIONa 

B€9ol90d,  That  the  memebera  of  the  bar  of  the  Supreme  Court  of  the  United  Statea 
lament  the  untimely  death  of  the  late  Joaeph  Rucker  Lamar,  Aseodate  Justice  of  the 
Supreme  Court  of  the  United  Statea,  and  record  their  appreciation  of  hia  leamiagi 
ability,  and  high  character,  the  affectionate  regard  with  which  they  now  d&eriah  hia 
memoiy,  and  the  great  loaa  to  the  bench  and  the  country  occaaioned  by  hia  death. 

A  native  Qeorgian,  he  waa  bom  of  an  iUustrioua  family,  and  by  hia  life'a  work  not 
only  auatained  the  beat  traditiona  thereof,  but  added  lustre  to  the  great  name  he  bora. 
He  waa  the  aacond  of  the  Georgia  Lamara  to  win  a  place  on  the  bench  of  the  Supreme 
Court  of  the  United  Statea,  the  firat  being  the  late  L.  Q.  a  Lamar,  appointed  from  the 
atate  of  MiaaiaaippL  Each  of  theae  two  Lamara  brought  to  the  court  aupcrb  mental 
equipment,  lofty  Ideala,  Intenae  Americanlam  and  eonaecratlon  to  duty,  and  by  the 
product  of  hia  labora  more  than  vindicated  the  wiadom  of  hia  i4>pointment. 

Joaeph  Budcer  Lamar  waa  horn  October  14th,  1867,  and  after  a  eoUcgiate  edttestlen 
came  to  the  bar  at  twenty-one  yeara  of  age.  Hia  entire  life  thereafter  waa  one  el 
devolion  to  the  law,  for  he  never  knew  any  other  field  of  labor. 

Aa  a  practitioner  at  tfbe  bar  he  won  renown  and  aucceaa,  and,  at  a  eomparativ^  earty 
age^  eaaUy  ranked  among  the  laadera  d  the  bar  of  hia  atate.  Aa  aa  aatagoniat  he  was 
atiNiys  formidable^  for  he  was  alwsys  prq^ared*  but  he  was  also  always  deli^tfuL  His 
t944  Ml  V.  ■• 


eemrtwy  wm  Hmrmlag.    H«  wms  always  fair*  and  neither  tooght  nor  wonld  ht  knre 
any  mean  adTantafe. 

In  1892  he  waa  ehosen  an  one  of  three  commiseiooere  to  codify  the  laws  of  hie  state 
and  the  work  lie  there  did*  resulting  in  the  Oode  of  1896,  will  cnrer  stand  as  a  monument 
to  his  discriminating  Judgment,  to  his  industry,  and  to  the  thoroughnees  and  complete- 
nces  with  which  he  performed  eadi  task  assigned  to  him. 

Prior  to  this  work  of  eodiiication  he  senred  for  two  terms  as  a  member  of  the  lower 
house  of  the  general  assembly  of  (Georgia,  and  to  the  legislatiye  field  he  carried  the 
training  and  habits  of  the  lawyer,  giving  to  his  state,  upon  all  public  questions,  the 
eareful  prepaimtJoii,  the  thou^tlul  consideration,  the  sound  adrioe,  and  unswerving 
loyalty  ol  attorney  to  client.  He  was  always  earnest,  always  sincere,  and  never  knew 
tali  one  way  to  discharge  any  duty,  and  that  way  was  to  discharge  it  to  the  very  best 
efkbahOitj. 

te  Jaimary  18th,  1908,  he  took  his  seat  as  an  associate  Justice  of  the  supreme  court 
«f  tfba  state  of  Qeorgia,  and  reeigned-  therefrom  in  1906  on  account  of  his  health,  and 
tlM  practice  of  law. 
Droits  of  this  service  were  found  in  the  affection  and  admiration  for  him  of  his 
on  the  bench,  and  of  the  bar  of  the  state,  and  in  strong  virile  opinions, 
ehaslcaHy  sKpressed,  which  to^y,  as  then,  enrich  the  permanent  judicial  literature  of 
hiasUta. 

On  December  12th,  1910,  he  was  i4>pointed  an  associate  Justice  of  the  Supreme  Court 
if  the  United  Statea.  Hia  appointment  was  shortly  thereafter  confirmed  by  the  senate, 
and  on  Januaiy  8d,  1911,  he  took  his  seat  on  the  bench.  He  died  at  his  home  in  the 
city  of  Washington  on  January  2d,  1916,  not  quite  completing  five  years  of  service. 

From  the  day  upon  which  he  entered  this  service  he  consecrated  his  life  and  all  that 
was  in  him  to  the  faithful  performance  of  its  duties.  His  application,  his  untiring 
research,  his  painstaking  care^  and  his  patient  labor  were  known  to  all  who  had  dealings 
with  the  court. 

Others  have  been  and  no  doubt  will  be  permitted  to  give  more  years  of  service  to 
their  country  on  this  great  bench  than  was  he,  but  to  him  was  given  the  high  privilege, 
by  excessive  and  never-ending  toil,  to  give  his  life.    No  man  could  give  more. 

Measured  by  time,  his  service  was  not  long,  but  measured  by  reaults,  a  great  service 
was  completed.  He  served  long  enough  to  demonstrate  his  aptitude  and  fitness  for  the 
work,  and  long  enough  to  leave  upon  the  archivea  of  his  country  the  enduring  impress 
of  a  great  and  Just  Judge. 

His  life  was  one  of  devotion  to  American  ideals.  He  was  ever  a  student  of  his  country's 
history,  and  no  man  was  more  familiar  than  he  with  the  origin  of  the  government  under 
which  he  lived,  or  with  the  foundation  principles  upon  which  it  rests.  The  extent  and 
the  limitations  of  its  power  were  clearly  defined  in  his  mind  and  full  well  he  knew  how 
liberty  came,  and  how,  only,  it  can  be  preseryed. 

To  the  office  of  associate  Justice  of  the  Supreme  Court  of  the  United  States  he  brought 
the  ability,  the  strength,  the  courage,  and  the  patriotism  to  preserve  our  Republic  as 
the  Fathers  founded  it,  and  all  these  he  dedicated  to  that  great  end. 

In  May,  1914,  he  was  invited  by  the  President  to  serve  as  a  special  commissioner  of 
the  President,  in  connection  with  commissioners  from  certain  South  American  countries, 
in  the  matter  of  mediation  in  the  troubled  affairs  of  our  neighboring  Republic  of 
Mezioo.  With  his  habitual  response  to  every  call  of  duty  he  accepted  the  invitation  and 
assumed  the  responsibilities  thereby  imposed.  The  commissioners  so  selected  met  with 
eommissioners  from  Mexico  at  Niagara  Falls  soon  after  their  appointment,  and 
eoneluded  their  delicate  and  important  labors  in  the  month  of  July  following,  to  the 
satiafaetion  of  the  several  govermenta  participating. 

Ho  waa  by  nature  kind  and  gentle,  but  beneath  his  kindliness  of  manner  there  was 
a  flxednesa  of  purpose  and  a  courage  of  steel  that  knew  no  yielding.  He  was  cautious 
and  eareful,  but  once  the  path  of  duty  became  clear  he  followed  it  to  the  end.  He 
n«v«r  faltered  in  the  pursuit  of  truth. 

The  sweetness  and  gentleness  of  his  nature,  the  charm  of  his  personality,  the  readiness 
sf  kla  sympathy  were  soeh  that  to  know  him  was  to  love  him.  The  same  listening  ear 
M  li.  •«.  It4ft 


tibat  MM  Jndft  he  gav«  to  adToeftUb  ht  aiwaji  kept  ttttuned  to  hear  the  Toloe  of  hiuMB%. 
He  loved  his  fellows,  and  to  him  the  breath  of  friendship  was  as  inoense.  It  sweetwed, 
inspiredf  and  strengthened  his  life. 

Li  the  rich  follness  of  his  ^jnipathetie  heart,  iHien  he  came  to  prepare  his  Issi  will 
and  testament^  in  1809,  he  iaeorporated  therein  the  following  beaattfol  statenentt  '^ 
friendships  ma^j  and  preeious  I  leave  to  mj  familj  in  the  hope  that  thej  wll]  hi 
dierished  and  eontinned.  I  know  oi  no  enmities;  bat  if  soeh  nnhappify  herealtsr  ariM^ 
let  them  be  forgotten.** 

Wh«B  the  end  came  for  him.  It  Is  predons  to  beUere  that  there  was  still  an  absenw 
of  all  enmities,  and  that  he  went  ont  into  the  Qreat  Bejond,  leaving  bddnd  him  a  world 
of  friends  onlj.     What  more  priceless  heritage  could  he  have  beyieathedt 

Re90lv€d,  That  the  Attomej  Qeneral  be  asked  to  preeent  theee  resolutions  to  tht 
court,  with  the  request  that  ti&ej  be  entered  upon  the  records^  and  that  the  diairmsa 
of  this  meeting  be  directed  to  forward  a  copj  of  them  to  the  family  of  the  late  Justiee 
Lamar,  accompanied  bj  an  expression  oi  max  profound  ^^pathj  for  them  la  their 
overwhelming  bereavement. 


RKMAHKH  OF  WM.  O.  BRANTLEY. 

Mr,  {fluiirmamf 

It  was  mj  privilege  to  know  Justice  Lamar  long  and  intimatdy.  He  poeaessed  my 
respect,  mj  admiration,  and  mj  affection.  I  first  knew  him  when  we  served  together 
at  members  of  the  Georgia  legislature,  and  It  was  there  that  I  came  to  know  the  woa- 
derful  deamesa  of  his  perception,  the  power  of  hia  logic,  the  varied  character  of  hit 
information,  and  the  thoroughnesa  and  conecientiouaneea  with  which  he  did  hia  work; 
and  also  came  to  know  the  deanliness  of  his  life  and  the  gentlenees  of  his  nature. 

I  had  the  opportunity  to  bear  testimony  to  his  worth  to  Preddent  Taft  prior  to 
his  appointment  to  this  great  court.  On  that  occadon.  President  Taft  said  to  me,  that 
la  filling  the  vacandea  then  existing  on  tiie  bench  of  the  Supreme  Court  It  waa  hii 
deaire  to  find  men  who  were  big  enough,  coiuageoua  enough,  able  enough,  and  patriotie 
enough,  to  preaerve  thia  Republic  aa  it  waa  founded,  and  it  mattered  not  to  him  from 
what  aection  of  our  common  country  they  came,  nor  what  their  politica  were.  I  was 
proud  to  give  my  assurance  that  Mr.  Lamar  meaaured  up  to  theee  great  qualiflcatioas, 
and  I  am  happy  now  to  believe  that  thia  assurance  was  more  than  vindicated  by  the 
record  of  Justice  Lamar  in  the  discharge  of  his  Judicial  dutiea. 

Mr.  Chairman,  the  purity  of  the  life  that  Justice  Lamar  lived,  and  the  deeds  he 
wrought^  known  to  us  all,  q>eak  their  own  eloquent  «ilogy  of  the  man  and  his  Ufe^ 
and  there  are  no  words  of  mine  that  can  add  anything  thereto.  I  can  only  bear  tcstimoiiy 
to  the  strength  of  my  devotion  to  him,  and  declare  my  high  estiniate  of  him  as  man,  se 
lawyer,  and  as  Judge,  and  the  great  sorrow  Into  which  we  were  all  plunged  when  ha  waf 
taken  from  ua.    I  move  the  adoption  of  the  reaolutiona  aubmitted. 


RRMARKfl  OF  MR.  B.  MARYDf  UNDKRWOOD. 

Mr,  0Ka4rman: 

We  of  the  atate  of  Georgia  were  glad  and  proud  when  the  great  ability  and  aterUag 
character  of  our  compatriot^  the  late  Juatice  Lamar,  were  recqgniaed  and  rewarded  fay 
hia  devation  to  the  bench  of  the  Supreme  Court  of  the  United  Statea. 

We  were  happier  still  to  see  our  faith  Justified  in  his  splendid  work,  evidenced  horn 
the  beginning  by  the  dear  and  learned  opinions  he  wrote  while  a  member  d  this  Court, 
and  we  noted  with  greateat  aatiafaction  tiie  progreadve  development  of  hia  powera. 

We  now  mourn  hia  untimely  death  at  the  very  aenith  of  hia  powera  and  uaofnlneHk 
and  sadly  realise  that  our  country  haa  loat  one  of  her  ableat  and  moat  faithful  aarvanta 
and  humanity  one  of  Ita  dioicest  spirits. 

We  whA  knew  hl■^  already,  have  been  taq^  by  hla  abaeaaa  hoar  mnsb  wm  ihall 
IIM  Mi  v.  t. 


APPKNDDL 

mias  hit  cordial  and  loring  naftura  mod  the  daUgfitfiil  d^rai  of  penoaal  ***■"— ""V«w  wttk 
him.    Lika  all  ol  hia  iriend%  I  cheriah  hia  maaotj  aa  a  paraooal  bkitliig. 

Aa  a  eiiiaen  ol  the  atate  whidi  gave  him  birth  and  whioh  ha  honored  and 
10  well*  I  paj  trUrata  la  hia  mk&marj^ 


KKMAKKg  OF  HR.  HANNIS  TAYLOR. 

Mr,  OkmSmnamT 

In  his  tender  and  noble-minded  easaj  on  FMondahip  CHoero  haa  laldt  *What  eaa  be 
more  delightful  than  to  be  near  to  one  to  whom  you  may  speak  on  all  sobjecta  Juat 
as  to  yourself.  Where  would  be  the  great  enjoyment  in  proeperity,  if  you  had  not  one 
to  rejoice  in  It  equally  with  yourself  t  And  adyersity  would  indeed  be  difficult  to  endure 
without  aomeone  who  would  bear  it  eren  with  greater  regret  than  yourself.  In  short, 
all  other  objecta  that  are  sought' after  are  sererally  suited  to  some  one  single  purpoee: 
Riches,  that  you  may  spend  them;  power,  that  you  may  be  oourted;  honors,  that  you 
may  be  extolled;  pleasures,  that  you  may  enjoy  them;  good  health,  that  you  may  be 
exempt  from  harm,  and  perform  the  functions  of  the  body.  Whereaa  friendahip  com- 
prises the  greatest  number  of  objects  possible;  wherever  you  turn  it  is  at  hand;  shut  out 
of  no  place,  never  out  of  season,  never  irksome;  and  therefore  we  do  not  use  lire  and 
water,  as  they  say,  on  more  oocaaiona  than  we  do  friendship.  And  I  am  not  now  spealdnf 
of  commonplace  or  ordinary  friendship  (though  even  that  brings  ddight  and  benefit), 
but  of  real  and  true  friendahip,  such  as  belonged  to  those  of  whom  very  few  are  recorded; 
for  prosperity,  friendship  renders  more  brilliant;  and  adversity  more  supportable,  by 
dividing  and  communicating  it.** 

I  have  borrowed  these  reflections  on  friendship,  Mr.  Chairman,  from  one  of  the  greatest 
maatera  of  human  emotions^  becauae  Bir.  Justice  Lamar  possessed  in  a  very  eminent 
degree  what  may  be  called,  without  ezaggeraticm,  a  genius  for  friendship.  It  waa  a 
part  of  hia  religion;  it  waa  a  part  of  hia  life.  To  such  an  extent  waa  that  true  that 
when  the  time  came  for  him  to  execute  his  last  will  and  testament  ha  described  his 
friendships  aa  the  most  precious  of  his  possessions.  In  his  will  he  said,  with  touching 
pathoa — ^"I  bequeath  my  friendships  to  my  children.**  I  cannot  elaim  to  have  been 
within  the  charmed  circle  of  the  dead  Justice'a  friendships.  And  yet  a  very  oordial 
acquaintance  waa  fast  ripening  into  friendship  when  the  pale  messenger  came  with 
hia  inverted  tordi  and  beckoned  him  away.  As  our  homes  wore  not  far  apart  it  waa 
my  habit,  during  the  last  few  yeara  of  hia  lif^  to  visit  him  at  stated  intervals,  and  to 
commune  with  him  upon  all  the  problema  now  pressing  upon  ua.  In  that  way  I  waa 
able  to  make  a  rough  inventoiy  of  hia  thougfata  and  feelings;  in  a  word,  to  understand 
his  eatimatea  of  the  duties  and  reaponaibilities  of  Ufa. 

No  member  of  thia  court  waa  ever  more  impressed  than  Justice  Lamar  with  Ita 
auguat  dignity  and  ita  national  and  international  importanesw  Ha  realised  the  fMct 
that  he  had  besn  called  to  a  great  magistracy,  and  the  single  ambition  of  hia  life  waa 
to  diadiarge  ita  dutiea  w<»ihify.  A  ripe  culture  and  a  long  and  active  experience  at 
the  bar  had  well  equipped  him  for  hia  task.  And  so,  surrounded  In  hia  home  with 
an  ample  and  well-seleeted  library,  he  wrought  for  five  yeara  in  laying  the  foundations 
of  a  reputation  aa  a  judge  whidi  will  be  permanent.  Those  of  you  who  are  familiar 
with  hia  deddona  fully  appreciate  not  only  thdr  depth  and  breadth,  bat  the  finished 
elegaaee  and  lucidity  of  the  language  In  whieh  they  were  expressed.  Throu|^  them  all 
there  is  a  dear-mindedness  which  never  missed  the  real  point  at  iasua;  throu|^  them 
all  there  is  an  honesty  of  purpoee  which  never  stopped  to  shallow  sophistries  aa  a  meens 
of  foreing  a  eonduaion.  To  hia  Judicial  style  w  may  wdl  apply  the  Horatian  epigrai»— 
Bimpl99  Q$^U0  rotmmduB, 

There  ia  only  one  kind  of  sectionalism  of  whidi  I  approve.  I  refer  to  that  oommendabla 
apirit  of  generous  rivalry  whidi  pronpta  eadi  grand  divlaion  of  our  eommon  eountry 
to  aend  to  thla  capital  aa  Ita  representatlvea  ita  best  and  wisest  men.  In  that  way  eaeh 
seetion  makea  for  itadf  a  place  la  our  invidble  hall  of  fame.  Aa  a  Southern  man  I 
tmivm  that  I  Isd  a  special  pride  In  tha  icmarkaUa  eoatrlbattaa  agr  seetiott  haa 
••  li.  ad. 


AFPBNDDL 

mmd»  to  the  peraoiuMl  of  thk  gnat  eoart  Of  Its  nine  Ohlof  JaticM^  four  kavo 
oo&tribiited  bj  Hit  South:  Rutledga,  Marahall,  Tanij  and  White.  Of  its  sixty  Assodats 
Justicss,  twenty  haro  been  eontributed  by  the  South:  Harrisoii  of  Maiylaad,  Blair  of 
Yirginia,  Iredeil  of  North  Carolina,  Chase  of  Maryland,  Washington  of  Virginia,  Mooie 
of  Nortii  Carolina,  Johnson  of  South  Carolina;,  Todd  of  Virginia,  Duvall  of  Maryland, 
THmblo  of  Virginia,  Wayne  of  Georgia,  Barbour  of  Virginia,  Catron  of  Tennessee, 
MeKJnkj  of  Alabama,  Daniel  of  Virginia,  Campbell  of  Alabama,  L.  Q.  C.  Lamar  of 
Mississippi,  Jackson  of  Tennessee^  Lurton  of  Tennessee,  and  Joseph  Rueker  Lamar  ol 
Georgia.  Only  the  families  of  Field  and  Lamar  have  enjoyed  the  distinction  of  eontiibn- 
ting  two  members  each  to  the  staff  of  this  court 

In  a  proud  yet  stricken  spirit  the  South  yiews  these  obsequies  of  her  distinguished 
son,  because  she  feels  that  her  last  contribution  to  the  staff  of  this  oourt  was  in  erery 
wi^  a  worthy  one.  Within  the  brief  time  allotted  to  him  Joseph  Rueker  Lamar 
adiioFed  as  much  as  the  most  ambitious  and  exacting  mother  oould  haye  expected  of 
him.  Ho  was  adequate  in  all  things.  I  shall  th/eref ore. close  this  humble  tribute  as  I 
b^gan  it,  with  a  quotation  from  the  famous  essay  on  Friendship,  in  which  Cicero 
epitomised,  twenty  centuries  sgo,  the  life  and  character  of  Justice  Lamar  as  I  under- 
stand it.  In  speaking  of  liis  lost  and  cherished  friend  Scipio,  the  great  word-painter 
said:  "What  shall  I  say  of  his  most  engaging  manners;  of  his  dutiful  conduct  to  his 
mother;  his  generosity  to  his  sisters;  his  kindness  to  his  friends;  his  uprightness  toward 
alL  These  are  known  to  you;  and  how  dear  he  was  to  the  states  was  displayed  by  her 
mourning  at  his  death.  How,  therefore,  could  the  accession  of  a  few  years  have  bene- 
fited such  a  mant  F(Hr  although  old  age  is  not  burdensome  (as  I  recollect  Cato  asserted, 
in  oonyersation  with  myself  and  Scipio  the  year  before  he  died),  yet  it  takes  away  that 
freshness  which  Scipio  eyen  then  possessed.  Wherefore  his  life  was  such  that  nothing 
could  be  added  to  it,  either  in  respect  of  good  fortune  or  of  glory:  moreoYer,  the  yeiy 
suddenness  of  his  death  took  away  the  consciousness  of  it." 

VMt  tamem  Memperqit^  vivetj  virtutem  enim  amari  UlUu  viri  quae  emtimota  mon  mt. 
Ds  Amiot^io,  XXVII. 

He  liyes  and  shall  forever  live;  for  it  was  his  virtues  that  endeared  him  to  me,  and 
they  can  never 


KKMARK8  OF  MR.  FRANK  WARREN  HACKETT. 

Wo  of  the  bar  have  listened  with  ^^pathetic  ear  to  what  has  been  said  of  our 
friend,  Bir.  Justice  Lamar,  by  lawyers  from  Georgia  and  Alabama.  Perhaps  it  is  now 
appropriate  that,  ooming  as  I  do  from  New  Hampshire,  I  add  a  word  of  tribute  to  his 
memory.  I  am  the  further  encouraged,  Mr.  Chairman,  because  of  the  felicitous  relation 
you  yourself  bear  to  the  state  of  New  Hampshire. 

Sometimes  I  have  wondered  whether  the  public,  who  are  not  lawyers,  or  familiar 
with  the  traditions  of  our  profession,  understand  what  these  bar  meetings  mean.  I  fear 
that  there  may  be  those  who  imagine  that  what  is  said  is  perfunctory,  and  that  the 
custom  is  followed  only  becauss  it  has  been  long  established.  That  is  far  from  the 
truth.  I  can  myself  certify,  from  forty-three  years'  experience  as  a  member  of  the 
bar  of  this  court,  how  genuine  and  heartfelt  are  the  expressions  that  on  these  occasions 
coBM  from  the  bar,  in  testimony  of  the  worth  of  a  deceased  justice. 

I  recall  the  drcumstanoe  of  my  being  present,  at  ths  meeting  held  in  1873,  in  memory 
of  Chlel  Justiee  Chase;  and  I  believe  that  I  can  say  that  since  that  time  I  have 
attended  nearly  every  one  of  the  bar  meetings  held  In  this  room.  Well  do  I  remember 
the  prooesdings  that  took  place  upon  the  death  of  Matt  Carpenter,  when  Judge  Black, 
speaking  from  where  I  now  stand,  closed  his  remarks  with  the  exclamation,  **l  did  love 
the  man.**    We  were  overcome  with  emotion  at  hearing  those  simple  words. 

I  wish  I  had  time,  but  there  is  no  time,  to  go  a  little  into  an  expression  of  the  meaning 
and  the  value  of  these  meetinga.  They  furnish  the  only  importunity  that  the  bar  has 
to  testify  to  the  merits  of  a  Judge  whom  they  have  learned  to  esteem,  and  to  regard  as 
a  frlsnil  These  oooasions  have  their  value,  because  th^  bring  to  light,  as  it  weio,  and 
114t  141  U.  S. 


APPENDIX. 

flmphatiM  the  relation  that  exists  between  bench  and  bar.  Unless  that  relation  ba 
eordial,  unless  the  two  have  eonfidenoe,  each  in  the  other,  the  cause  of  Justios  is  not 
subserved  as  it  should  be.  There  is  a  pride  on  the  part  of  the  bar  in  the  eonvietion 
that  we  not  only  trust  each  other,  as  we  do  implicitly  in  our  business,  but  that  wa 
trust  the  judge,  and  the  Judge  trusts  us.  This  feeling  of  the  existence  of  a  genuine 
and  complete  confidence  helps  measurably  in  the  administration  of  justies. 

But  I  must  hasten  to  say  a  word  in  regard  to  the  personality  of  Mr.  Justios  Lamar. 
It  was  not  my  priTilege  to  know  him  any  further  than  by  way  of  a  passing  acquaintance. 
Let  mc  confess,  however,  that  the  first  time  I  saw  him  on  this  bench  I  was  captiyated 
by  his  oountenance.  I  do  not  recall  another  instance  of,  at  first  sight,  becoming  wholly 
eonquered  by  the  looks  of  a  man,  as  in  the  case  of  Mr.  Justice  Lamar.  It  may  be 
sentimental  to  say  it,  but  it  seemed  to  me  that  there  was  in  his  face  an  aspect  of 
benignity,  of  gentleness,  and  of  happiness, — and  yet  no  lack  of  vigor  or  firmness.  That 
I  feel  sure,  sums  up  the  best  qualities  a  Judge  can  possess.  The  thought  came  into 
mind, — ^here  is  one  who  will  listen  to  you  kindly  and  considerately,  and  then  decide  Justly. 

Trivial  though  this  circumstance  may  be,  I  deem  it  not  unworthy  of  being  mentioned, 
in  order  that  it  may  go  upon  record;  for  in  years  to  come  the  bar  will  be  grateful  to 
learn,  be  it  never  so  little,  of  the  personal  characteristics  of  any  justice  of  this  court. 

We  have  already  heard  with  what  signal  ability  Mr.  Justice  Lamar  served  as  a 
member  of  the  highest  court  in  his  native  state  of  Georgia.  We  know  what  promise 
attended  his  taking  a  seat  upon  this  bench. 

Heretofore,  these  meetings  have  been  called  to  express  the  feelings  of  the  bar  upon 
the  passing  away  of  a  justice,  or— on  very  rare  occasions — of  a  great  lawyer.  These 
men  had  finished  their  lifowork.  The  record  of  usefulness  had  been  made  up.  To-day, 
we  mourn  because  one  who  had  scarcely  reached  the  maturity  of  his  powers  haa  besn 
cut  down. 

But  we  must  be  thankful  that  Mr.  Justice  Lamar,  in  the  span  of  life  that  was  hts» 
had  indeed  accomplished  so  much.  We  know  that  he  approved  himself  an  able,  a  faithful, 
and  a  true  man.  We  can  assure  ourselves  that,  had  he  lived,  his  woric  would  have  besn 
of  increasingly  large  value  to  his  country. 

I  am  grateful  for  the  privilege,  coming  as  I  do  from  New  England,  of  adding  a  word 
to  what  has  been  said  by  my  friends  from  the  South,  and  of  bearing  witness  with  than 
that  there  was  plainly  to  be  seen  in  Mr.  Justice  Lamar  a  man  of  noble  build  who  had 
already  advanced  far  on  the  road  to  distinction — a  man  whose  name  shall  be  borne  upon 
the  records  of  this  oourt  as,  in  a  marked  degree,  a  wise,  a  pure-minded,  and  a  sound 
juriai. 


REMARKS  OF  MR.  ALFRED  P.  THOM. 

A  little  over  five  years  ago  many  members  of  the  American  bar  stood  in  this  roon 
with  uncovered  heads,  and  saw  one  of  their  number  take  the  oath  as  a  Justice  of  this 
Honorable  Court. 

It  was  my  privilege  to  be  here  and  to  witness  the  induction  into  office  of  tha  new 
Justice,  Joseph  Rucker  Lamar  of  Georgia. 

Nowhere  in  that  assemblage  of  lawyers — nowhere  in  any  part  of  this  naticm  where 
ha  was  known — was  there  a  doubt  of  the  purity  of  his  soul  or  of  the  elevation  or  rectitude 
or  soundness  of  his  moral  standards.  By  universal  acclaim  he  was  weloomed  here 
as  worthy  to  be  trusted  with  the  ideals  and  responsibilities  of  justice,  as  Justios  existed 
and  was  cherished  in  the  hearts  and  oonsciencea  of  the  American  people. 

It  was  known  that  he  had  lived  an  upright  life;  that  he  cherished  no  enmities;  thai 
lie  possessed  no  class  consciousness  or  hatreds;  that  he  loved  his  neighbor;  that  ha  had 
no  purpose,  and,  in  his  purity  and  majesty  of  soul,  there  could  exist  no  purpoas^  except 
to  learn  what  justice  was  and  to  administer  it  with  equal  hand  and  In  untainted  quality 
to  all  men  alike. 

It  was  realized  that  by  his  whole  life  he  had  fitted  himself  for  this  great  work,  and 
Ibat  he  measured  up  to  the  standard  set  by  the  Amerionn  P^P^  '^  their  Judges,  which 


APPBNDEL 

nqpdxtdf  not  obIj  that  thaj  ahould  Urt  upright^  moral.  Mid  intelleotoal  Urm,  but  thai 
ihtj  malt  prMenre  aa  untamiahad  Nputatloiiv  ao  that  no  aaadow  of  doubt  eonld 
laat  upon  tha  qiialitj  of  Juatioa  aa  adminiatcvad  In  tha  aourta.  lb  ba  a  Jndga^  a  lawyer 
ia  reqKmaiMa  not  oidj  lor  what  ha  1%  hut  tot  idiat  ha  ia  thoni^t  to  be.  It  ia  nnwitiel 
that  ha  ahould  haTo  not  onfy  ahareeter  but  standing.  AH  men  knew  that  Jnatioe  Lamar 
not  onlj  had  deaerred  hot  had  aohloTad  this  q^otleat  reputattoa,  and  ao^  In  tha  aUeat 
▼erdiet  of  the  bar  and  of  the  people,  he  atood  iq^prored. 

For  ftra  jaara  ha  eop tinned  la  tha  hi|^  office  of  juatioe  of  thia  conrti  Bj  no  aat  of 
hia  on  the  bench,  bj  no  act  of  hia  in  priyate  life,  did  he  dlaappdnt  pubBo  azpeetatlon 
or  lower  the  atandarda  appropriate  to  be  maintained  by  a  member  of  thia  great  tribanaL 
Galled  upon  to  conaider  and  determine  great  oontroveriiea  in  which  the  interarta  and 
paaaiona  of  men,  of  partiea  and  of  goTemmenta,  wore  acutely  taTotred,  he  nercr  loat  hia 
Judicial  p<^ae,  he  never  deeoended  from  the  lerene  heighta  of  impartial  Judgment^  ha 
never  turned  hia  back  on  weakneea  or  cringed  before  the  demands  oi  power. 

HIb  name  baa  passed  into  history  in  important^  and,  in  many  instances.  In  eoatroUlBg 
aasoeiatioa  with  great  causes^  which  have  become  creatiye  foroea  in  moulding  our  Juria- 
prudenoe^  and  have  served  to  advance  the  standards  and  conoq»tiona  of  juatice 


Ha  waa  faithful  to  the  Constitution.  Ha  did  not  regard  it  aa  an  antiquated  or  out- 
gro^m  instrument^  but  aa  a  living  force,  embodying  the  true  prindplea  of  liberty  and 
Justice^  and  capable  of  adaptation,  in  the  realm  of  government,  ao  aa  to  meet  Jnst^ 
and  equitably  the  demanda  of  human  Justice  and  of  human  progress^  Just  as,  ia  the 
moral  and  apiritual  world,  the  principles  of  the  sermon  on  the  Mount  are  eternal  and 
eapable  of  adaptation  to  all  the  changing  needs  of  the  human  souL 

At  tha  altar  of  the  Constitution  he  worshipped  with  the  simple  fidth  of  one  who  never 
doubted,  and  who  found  both  his  strength  and  his  inspiration  In  the  great  principles 
of  Juatioe^  equality,  and  liberty,  which  he  believed  to  be  eternal  aa  they  were  announced 
by  the  Fathera  wlien  they  created  thia  Republic  and  dedicated  It  to  msnlrhid.  He 
bellsffa^  aa  atrongly  expreasad  In  a  recent  patriotic  utterance^  thatr- 

With  wiadom  and  with  patient  skill. 
Wide  learning  and  prof oundest  thou|^^ 
With  sealous  and  unselfish  will. 
Our  patriotic  fathers  wrought. 

Tliey  laid  foundati<ma  deep  and  wlde^ 
ThcT  made  their  own  immortal  plan» 
And  reared  on  linea  before  untried, 
A  home  for  freedom  and  for  man. 

They  fortified  eadi  sacred  riffht, 
lliey  shielded  all  from  fraud  or  wrong* 
Tbe^  curbed  the  power  of  selfish  might^ 
And  armed  the  weak  against  the  strong. 

Upon  themselves  they  put  restraint 
Lest  hastv  passion,  given  range. 
Should  silence  reason  with  complaint, 
And  bring  some  needless  harmfui  changa. 

Through  storm  and  stress,  through  many  fear% 
Through  war  and  fierce  domestic  strife 
Down  through  the  lapse  of  dianging  years^ 
They  guard^  well  tha  Natlon'a  Bfa. 

Hia  Constitution;  stUl  It  standa, 
August,  majeatic,  loftv,  lone; 
Ko  ftJvic  wrought  by  human  hands 
Such  strength  and  symmetry  has  shown. 

The  Oonstltotlon;  there  It  atanda 

A  beacon  In  a  storm-tossed  world; 

And  peace  will  reign  in  other  landa 

When  they  Ita  banner  have  unfurled. 

•        ••        •        •        •        •        •        • 

MM  J41  V«  a. 


W«  lort  tlM  mMi  wlio  g»v«  H  birl^ 
W«  TiHMrate  til  eforr  daiiM; 
BoiifB  preteetor  of  tlM  haarlkt 
HoTB  guardian  of  tha  awU/'a  lamib 


To  na  balooga  tba  plooa  tuk 
Tb  ward  from  H  au  thiaatantng  locab 
Both  thoaa  who  tnrk  'tea^  friMidahip'k 
iJid  thoaa  who  daal  it  hoaftila  Uowat 


Ta  rouaa  tha  paopla  af  tha  laad 
Tb  know  tha  traaanra  thij 
And  amita  mtft  aaarilagioaa  Hand 
That* a  laiaad  to  harm  or  auka  it 


Now  UMi  Jnatiaa  Lalnar'a  aaraer  la  cndad,  and  ha  haa  han  laid  hj  tandar  handa  la 
an  honorad  graTO^  wa  who  anrrlTa  can  b^gin  to  taka  loma  Juat  BMaaura  of  hia  Hf^  and 
aan  tmfy  aaj  of  him  tihat  in  all  that  he  did  here  ha  atrugthflnad  tha  aonfldoioa  af 
In  tha  purity  of  Jnatlea  and  kapt  InTlolata  tha  faith  of  tha  Conatitntiim. 


Tha  Baaohitkna  wara  adoptad,  and^  on  iMitlon  of  Mr.  SoUaitor  Qanarml  DtufU,  tha 


BDPBSia  OOUBT  OF  TEE  UNITED  STATES. 


MONDAY,  JUNE  Ifi,  Itlt. 


;t   Tha  Ohiaf  Jnatie^  Mr.  Juatioa  MoKamia,  Mr.  Jnatiaa  Hofanaai  Mr.  Jaatlai 
Van  Dafant««  Mr.  Jnatiaa  Pteiy,  Mr.  Juatioa  MaRcgrnolda,  and  Mr.  Jnatiaa  Brandala. 

Mr.  AttoHMif  Gcnaral  Gregory  addroaaad  tha  aoort  aa  foUotwat 

M^  U  plaaaa  9<ntr  Emuon:  For  tha  Moond  thna  within  a  yaar  H  haa  haeoma  my 
dntj  and  aad  priril^ga  to  prasant  to  7011  Baaolutiona  paaaed  hj  tha  bar  on  tha  daath 
of  a  BMrnbar  of  thla  ooort 

Upon  tha  fmrnm  oocaaian  I  paid  an  Inadeqnata  tributa  to  ona  who  had  ban  a  friend 
from  mj  youth.  It  waa  not  mj  priyilega  to  ooma  in  intimate  eontaet  with  the  late 
Juatice  Lamar  until  a  Tory  faw  jaara  before  hia  death,  and  yet  the  feeling  whidi  moyea 
moat  la  one  of  keen  peraonal  loaii  a  feeling  that  a  great  light  haa  gone  out,  not  merely 
that  iUumined  the  l«gal  ahadowe,  but  one  that  warmed  the  haarta  of  men  and  nmda 
Under,  nobler,  and  more  eharitaUab 

In  recalling  tha  peraonality  of  a  really  great  man  who  haa  left  ua  wa  do  not  aea 
him  aa  a  aomUnation  of  Tarioua  Intellectual  and  moral  ^ualitieai  On  the  contrary,  wa 
ramcmber  him  aa  tha  poeeoaeoc  of  acme  ana  atrlking  diaraatarlatk^  aiiieh,  ilka  Saul, 
aon  of  Klah,  towered  abofe  Ita  brethren  and  challenged  the  attention  of  all  obaenrara. 

Whila  Juatica  Lamar  waa  a  powerful  adToaatCb  a  wlae  eounaelor,  an  able  and  Juat 
iQdg%  a  anltured  gentleman,  and  a  great  dtiaHi,  Ua  dominating  charaateriatia  waa  a 
paenllerjy  winnlqg  aourteiy,  a  kindly  conaideratlon  for  all  with  whom  ha  eaoM  In  aen- 
taal  Ha  waa  bom  and  brad  among  a  people  who  have  alwaya  diarlihod  thla  quality, 
aai  yat  In  hia  eaaa  It  waa  not  the  reaalt  of  aaiocfation  and  tralnlog.  By  a  perfeaify 
natural  proceaa  ha  garnered  the  annahine  of  life  and  diepanaed  it  niiSk,  a  prodigal  hand. 

In  contemplating  a  life  Uka  thla  you  think  of  Hawthome'i  tribute  to  the  fragrant 
white  water  VQj  of  the  Concord  riyer,  of  how  he  marrelad  at  ita  capaalty  for  abaorMng 
only  lordineaa  and  perfume^  and  we  refleeti  aa  did  tho  author,  an  how  aoma  p»nna 
ftif'*!*Vtt  cmly  what  la  a^  and  aril  from  tha  laaM  moral  afarenmatanaaa  iHiidi  cupp^T 
•PUa«.  llfti 


IFPXNDIZ. 
good  and  booatifiil  reialt%— the  fragnuiei  of  oeleitifail  flowwv— to  ttio  dmOj  Mfio  il 


Tho  power  to  aee^  to  iq>precUte,  to  aboorb,  oad  to  ezproio  what  ia  good  oonoa  tnm 
tho  hoart,  and  this  man,  like  Abou  Ben  Adheni«  would  have  said  to  the  angel  wHh  ttt 
goldn  book,  '^rite  me  aa  one  that  lorea  hia  fellow  men." 

I  doobt  not  that  it  waa  beeanae  of  thia  marked  characteriitie  that  Jnatice  Lamar 
waa  selected  bj  the  Preaidont  in  the  summer  of  1014,  from  all  the  able  men  of  the  natkNi, 
to  repreoent  the  United  States  at  the  conference  called  by  Argentina,  Bradl,  and  Ghlk^ 
to  consider  the  delicate  Mexican  problem.  Surely  no  more  critical  altoation  ooold 
hare  ariesn  to  test  to  the  utmost  the  best  qualities  of  heart  and  mind.  Ha  approached 
its  consideration  carrjing  in  his  right  hand  "gentle  peace  to  silenoe  enTioaa  tongues^" 
and  no  socih  mission  waa  ever  more  succeasfullj  carried  out. 

Being  a  man  of  this  type,  and  of  strong  intellect  and  wide  learning,  ho  natnrallj 
hrooght  to  the  sto^  of  questions  of  abstract  law  a  sjrmpathetic  intereat  and  enthusiaBm 
whieh  made  eren  the  dry  bones  live  again.  He  was  never  satisfied  with  his  work  wliUfl 
any  possibility  of  further  effort  remained.  Where  others  would  have  rested  content, 
his  ardent  seal  for  perfect  accomplishment  spurred  him  to  continued  labor.  Aceuracj, 
simplicity,  and  clearness  of  expression  were  his  constant  aim  and  his  marked  achievement 

In  appraising  the  woric  of  his  professional  brethren  he  was  most  generous.  He  took 
Intense  pleasure  in  the  accomplishments  of  others,  and  often  pronounced  their  work 
"well  done,"  with  genuine  enthusiasm,  where  he  would  have  criticised  it  if  his  own. 

Joseph  Rucker  Lamar  was  the  son  of  Rev.  James  8.  Lamar  and  Mary  Rudcer  Lamar. 
Hia  family  waa  of  Huguenot  descent,  the  founder,  Thomas  Lamar,  having  settled  in 
Maryland  in  1663.  His  ancestors  moved  to  Georgia  in  1766,  and  have  taken  a  promi- 
nent part  in  the  public  life  of  the  state. 

After  attending  preparatory  schools  in  Georgia,  he  matriculated  at  the  State  Universitj 
in  1874,  but  before  graduating  entered  Bethany  College,  West  Virginia,  of  whUh  Dr. 
William  Kimbrough  Pendleton,  afterwards  his  father-in-law,  waa  president.  He  grad- 
uated from  this  institution  in  1877,  and  after  studying  law  at  Waahington  and  Lee 
University  was,  on  April  16,  1878,  admitted  to  the  bar  in  Augusta,  Georgia,  where  he 
opened  an  office  and  established  his  home.  On  January  80,  1870,  he  married  Miai 
Clarinda  Huntington  Pendleton,  who,  with  two  sons,  survives  him. 

The  society  of  Augusta  has  always  been  cultured,  and  young  Lamar  waa  from  mrlj 
manhood  one  of  the  most  charming  of  that  delightful  circle,  and  rapidly  became  one 
of  the  leading  spirits  in  the  social  and  civic  life  of  the  community. 

From  1886  through  1880,  Mr.  Lamar  represented  Richmond  county,  in  which  Augusts 
is  situated,  in  the  Georgia  legislature.  He  was  the  author  of  some  of  the  most  important 
legislation  of  hia  state,  notably  the  act  regulating  the  exercise  of  the  right  of  eminent 
domain,  and  the  laws  governing  voluntary  assignments. 

Shortly  after  ending  his  legislative  services  he  was  appointed  one  of  the  codifiers  who 
revised  and  edited  the  Code  of  Georgia  of  1806.  His  labors  on  this  commission  were 
moat  able  and  of  great  service  to  the  state. 

Meanwhile  his  practice  had  become  wide  and  varied,  and  extended  throughout  Georgia 
and  neighboring  statea.  There  were  few  cases  of  great  magnitude  in  that  aection  in 
iHiioh  he  was  not  employed. 

On  January  13,  1003,  the  governor  appointed  Bir.  Lamar  a  justice  of  the  supreme 
court  of  the  state  to  fill  a  vacancy  on  that  bench,  and  he  waa  elected  to  the  position  in 
1904.    He  resigned  in  the  spring  of  1005  and  returned  to  the  ^ractioe  of  law  at  Augusta. 

He  waa  the  authc^  of  a  number  of  historie  and  literary  contributions^  many  of  whidi 
are  to  be  found  in  the  printed  volumea  of  the  reporta  of  the  Georgia  Bar  Association,  of 
which  ha  waa  an  active  member. 

SzoepI  while  on  the  state  bench,  he  served  as  a  member  of  the  board  of  law  examiners 
for  ad*"itfffi?"  to  the  bar  of  Georgia  from  the  organizaticm  of  that  institution  until 
hia  appointment  as  a  member  of  thia  oourt.    He  was  chairman  of  thia  board  from 
Iba  §ptia§  of  1005  until  his  removal  to  Waahington. 
Mftl  141  V.  S. 


APPBNDIZ. 


Ob  December  12, 1910,  he  wm  nominated  hj  FrmLimt  Tiafi  to  be  la  aeioeUte  Jnftiee  ci 
the  Supreme  Court  of  the  United  StateBy  wm  confiimad  by  the  Soiate  on  December  15th, 
and  took  hit  eeat  on  January  t,  1911. 

His  aenficea  on  the  bench  of  thia  court  are  well  known.  During  the  fiTe  jeari  el 
Hi  dnratlim,  he  participated  in  the  decisiona  ol  1470  eaaea,  wrote  the  opinion  of  the 
eourt  in  114  and  the  diaeenting  opinion  in  8.  Hia  opiniona  are  found  in  yolumea  220  to 
tS8,  incluflive,  of  the  United  States  Reporta.  Hia  iound  judgment,  wide  learning,  and 
great  clearness  and  facility  of  expreaaion  won  for  him  the  ccmfldence  and  admiration 
of  the  bar  and  the  public 

Perhapa  the  moat  important  opiniona  rendered  by  Justice  Lamar  were  in  the  caaea 
of  United  Statea  ▼.  Grimaud,  220  U.  8.  606,  66  L.  ed.  663,  81  Sup.  Ot  Rep.  480; 
Gompers  ▼.  Buck's  Stoye  k  Range  Co.  221  U.  S.  418,  66  L.  ed.  707,  64  L.RJL(N.S.) 
874,  31  Sup.  Ct  Rep.  492;  United  States  ▼.  Midwest  Oil  Co.  236  U.  8.  459,  50  L. 
ed.  673,  36  Sup.  Ct  Rep.  300;  United  States  ▼.  Delaware,  L.  ft  W.  R.  Co.  238  U.  &.  616, 
59  Lw  ed.  1438,  35  Sup.  Ct  Rep.  873. 

In  United  States  ▼.  Grimaud,  the  Secretary  of  i^iculture  had  passed  an  order  for- 
bidding grazing  on  public  lands  without  permits.  The  defendanta  were  charged  with 
violating  thia  order,  and  contended  that  the  act  of  Congress  making  it  an  offense  to 
disobey  the  regulation  of  the  Secretary  waa  unconstitutional  in  that  it  attempted  to 
delegate  l^slative  authority.    The  decision  overrules  this  contention. 

Li  the  case  of  Gompers  y.  Buck's  Stove  k  Range  Co.,  plaintiffs  in  error  were  charged 
with  oontempt  in  violating  an  injunction  of  tiie  supreme  court  of  the  District  of 
Columbia  by  publication  of  an  "unfair"  list  It  was  held  that  the  publication  was  a 
contempt,  but  that  the  proceedings  were  not  properly  brought. 

The  caae  of  United  States  v.  Midwest  Oil  Co.,  was  brought  to  test  the  government's 
right  to  oil  lands  valued  at  many  milliona  of  dollars,  and  involved  the  authority  ol 
the  Preaident  to  withdraw  such  lands  from  public  entry.  It  was  decided  that  tha 
President  had  this  authority. 

United  States  v.  Delaware,  L.  ft  W.  R.  Co.,  arose  under  the  commodity  clause  of  the 
act  to  regulate  commerce  and  under  the  anti-trust  act  The  railroad  company  at  the 
time  of  the  paasage  of  the  commodity  clause  was  engaged  in  mining,  buying,  transporting, 
and  selling  anthracite  eoaL  To  devest  itsdf  of  title  before  transportation  began,  it 
caused  the  ooal  company  to  be  organized  with  stockholders  and  officers  in  common  with 
itself.  The  railroad  company  then  caused  the  output  of  ita  mines  to  be  transferred  to 
the  coal  company  under  a  contract  which  placed  the  latter  company  largely,  if  not 
completely^  frtthin  the  power  of  the  former. 

The  district  court  dismissed  the  petition.  The  Supreme  Court  reversed  this  decision, 
holding  that  by  reason  of  having  stockholders  and  officers  in  common,  and  by  reason, 
further,  of  the  above-mentioned  contract,  the  two  companies  were  so  united  in  ownership 
and  management  aa  to  give  the  railroad  company  an  interest  in  the  coal  of  the  coal 
company,  and  that,  therefore^  the  transportation  of  such  coal  by  the  railroad  company 
constituted  a  violation  of  the  commodity  clause.  The  court  also  held  that  the  contract 
in  question  violated  the  anti-trust  act 

In  1011  Yale  University,  in  recognition  of  his  learning  and  ability,  conferred  on 
Justice  Lamar  the  degree  of  Doctor  of  Laws. 

He  waa  active  in  many  spheres  of  public  work  in  the  communities  in  which  he  lived, 
and  in  the  Christian  Church,  of  which  he  waa  a  devout  member. 

Ha  died  in  this  dty  on  January  2,  1916,  having  just  entered  upon  hia  fifty-ninth  year. 
He  waa  in  the  zenith  of  hia  powers  and  nasfulnesa  iriien  seized  wiih  the  fatal  illness 
which  terminated  hia  Ufa. 

Thia  ia  a  brief  outline  of  the  man's  character  and  life.  It  eonv^s  no  idea  of  hia  vivid 
personality.  It  faintly  portraya  hia  kindly  nature  and  the  loving  service  to  country, 
family,  and  friends  bereft 

Beyond  their  admiration  for  hia  talenta  and  accomplishments  will  stand  foremost  with 
an  privileged  to  know  him,  their  recollection  of  hia  warm,  magnetic  nature. 

Strang,  arden^  a  man  among  men^  a  warrior  ia  avary  battia  lor  tmth  and  right. 
••  li.  ed.  ilftf 


Ahraji  fmdj  lor  9nrj  oonfliei  whkh  wodki  wtnam  Hit  mnm  kt  mfmtmi^  k«  vm 
«M  oi  whoM  it  ■onld  with  perfect  tmth  be  laidi 

^'Wb  life  was  fuitle;  Mid  the  elcoMBti 
80  ndz'd  in  Idin.  that  Nature  ml^t  iUmA  «p 
And  laj  to  all  the  world,  Ihie  wae  a  man.*  * 

I  Mw  road  the  BeeolutlQiia^ 

The  (Mef  Jiuiloe  reepondedt 

Ifr.  Attomj  Qeneral,  there  ii  nothing  to  be  added  to  the  boaotlM  trftale  whkh 
the  reeolutione  of  the  bar,  10  appreeiatively  bj  70U  preeented,  pej  to  the  memorj  of  Mr. 
Jnatioe  Lamar.  Ae  I  graq;>  their  ultimate  lignifieanoe^  thej  are  intended  prindpallj 
to  oKpreea  the  appreciation  by  hia  brethren  of  the  bar  of  hia  fealtj  to  the  nioble  ideali 
of  the  profeeaion  and  of  the  honor  which  hia  life  and  work  hare  reflected  on  that 
profeiaion.  In  facti  while  expreiaing  the  profound  rc^et  which  the  death  of  Mr.  Juitioe 
Lamar  haa  ocoaaioned,  aa  I  underatand  the  reaolntiona,  they  leek  not  aimplj  to  eaprcM 
that  regret,  but  rather,  aa  it  were,  to  lay  the  foundationa  in  the  permanent  recorda  of 
thia  eourt  of  a  monument  to  hia  memoiy  which  ihall  continue  to  qieak  of  hia  great 
moral  and  mental  qualitiea,  of  hia  courageoua  and  oonidentioua  diacharge  of  judicial 
duty,  long  after  we  ouroelvea  shall  have  gone. 

Admirable  aa  are  these  aims  of  the  resolutions,  I  find  it  difBcult  to  oompletety  adjust 
myself  to  them.  Ah,  how  can  it  be  otherwise,  since  at  the  yery  mention  of  the  death 
of  our  brother  Lamar  all  sense  of  exultation  or  pride  at  the  high  ideala  to  which  hii 
life  oonformed  fades  out  of  my  thoughts,  and  there  remaina  only  the  sense  of  peraonsl 
sorrow  at  the  loss  occaaioned  by  the  severance  of  those  ties  which  were  so  cherished 
and  by  which  hia  brethren  were  bound  to  him, — a  sorrow  whoae  depth  cannot  be  fnl^ 
fathomed  without  the  knowledge  begotten  by  association  in  judicial  work  of  the 
attributea  of  hia  nature,  so  gentle,  so  true,  so  faithful,  so  brave,  so  generous^  so  dsvotedl 
But  controlling  personal  feelings,  let  me  endeavor  to  bring  myself  into  harmonionf 
relationa  with  the  purposes  of  the  resolutions  by  making  some  few  suggestions  aa  to 
impree8i<Mis  made  upon  me  by  his  work  on  this  bench,  and  pointing  out  the  ^«m<w"»t 
faitellectual  influencea  whidi,  in  my  opinion,  formed  and  controlled  hia  abatraet  era- 
ceptiona  aa  to  some  important  questions,  and  which  consequently  tended  to  shape  the 
oondusions  which  he  reached  in  the  discharge  of  hia  dutiea  concerning  sueh  questioDa. 

Too  young  to  have  been  a  participant  in  the  Civil  War,  he  waa  yet  old  enough  to  have 
appreciated  the  anguish  of  that  appalling  conflict^  the  multitude  of  noble  Uvea  on 
both  sides  which  were  forever  stilled,  the  homes  made  deaolate^  the  flelda  wasted^  and 
the  blight  of  a  destroyed  society  and  of  nearly  all  prosperity,  which  came  at  least 
in  one  section,  aa  a  result  of  that  struggle, — impreesions  which  in  the  very  nature 
of  things  indelibly  atamped  upon  hia  developing  life  the  dread  oonsequenoea  which 
necessarily  would  follow  hi  the  wake  of  a  disintegrated  union  and  a  deatroyed  national 
life.  He  waa,  moreover,  old  enough  to  have  understood  and  appreciated  the  anguish, 
more  a|^[MUling  than  the  calamity  of  the  war,  of  the  period  whidi  followed  In  ita  wake^ 
and  thus  to  have  also  impressed  upon  his  nature  beyond  the  possibility  ol  forgetfulness 
tiie  destruction  of  individual  right  which  would  arise  from  reducing  the  states  to  mere 
dependent  vassals  deprived  of  local  autonomy  and  to  be  governed  from  afar  by  a 
osntralised  government,  whether  of  eoEecutive  power  or  of  bureauoratle  authority.  Thus 
hidubitably»  agr  belief  is,  it  resulted  that  when  by  training  his  mind  came  to  o^plon 
the  sources  of  oar  oonstitutional  life,  his  opinions  came  to  bo  oompoaite;  that  li^  la 
hia  mind  there  resulted,  aa  It  were,  a  fusion  of  state  and  national  power,  united  but 
not  destroyed,  both  eo-operatlng  to  the  perpetuation  of  the  other.  In  other  word%  hia 
opiniona  came  by  a  natural  process  to  embody  the  very  conoepta  190a  whIdi  our  inati- 
tntiona  muat  rest 

Reared  virtually  in  the  atmosphere  of  an  agricultural  oommunlty,  iHien  by  the  force 
ol  hia  ability  he  came  in  later  life  to  consider  a  wider  ranges — ^that  ia,  the  relation  to 


iFor  ttoie  RaaohitiflB^  ass  antob  p.  lUL 


uxk  otli«r  of  direrM  uid  ■eemlngly  ocmflieting  MtiTitiM,  and  th«  poMibilitj  of  oo-ordl- 
natiiig  and  pieawting  thai  all, — ^it  alio  mwrn  to  ■•  dear  thai  the  prooeaa  whioh  had 
■hapad  hia  oonTietiona  aa  to  our  oonatitntional  gorwnment  eama  to  mold  hia  opinkma 
OB  the  aobjaoti  Jnat  stated.  In  other  word%  he  came  folly  to  appreelate  that  to  aaamne 
a  aoeiety  resting  soldj  npon  the  poranit  of  agrienltnre^  and  which  would  bo  oonilned 
is  tiiat  relation,  was  a  negation  of  the  ezistenoe  of  aodety  itself,  which  In  ita  Tery 
ftsenes  embodies  the  oomplez  resnltanta  of  aU  the  aeiiTitlea  of  human  Hf^  glTing  riso 
to  tho  corresponding  duty  to  harmonise  and  adjust  them  to  each  other  ao  thai  thej  all 
might  livo  and  derelop  for  the  blcnslng  and  adyanoement  of  mankind. 

In  praetioe  it  may  be  said  that  theae  ultimate  conTictions  were  iq>plled  by  Ifr.  Jostlca 
Lamar  in  hia  diadiaigo  of  Judicial  duty  in  a  threefold  aspects  Firsts  tho  relation  of 
tho  aetlTltiea  of  IndiTiduals  and  their  results  to  each  other;  aeoond,  the  relation  between 
the  power  of  the  statea  and  that  of  the  nation;  and,  third,  the  obligation  and  effect 
of  the  limitations  impoeed  upon  all  goTemment  as  the  consequence  of  those  great  guar* 
antics  In  fayor  of  indiyidual  ri^t  forming  an  inherent  part  of  our  constitutional  system. 
As  to  tho  first,  it  is  enou|^  to  say  that  the  opinions  expressed  by  Mr.  Justice  Lamar 
in  the  performance  of  his  duties  here  afford  apt  examples  of  ths  keenness  of  his  appre- 
datloB  of  the  duty  to  adjust  between  conflicting  actiyitlea  so  aa  to  preserys  the  rights 
of  all  by  protecting  the  righta  of  each.  Aa  to  the  second,  intensely  local  aa  were  hia 
affections  and  hia  tles^  nothing  Is  more  dearly  portrayed  by  his  work  on  this  bench 
than  ths  broad  conception  which  he  entertained  of  the  duty  to  uphold  and  sustain  the 
authority  of  the  Unicm  as  to  the  subjects  coming  within  the  legitimate  scope  of  Its 
power  as  conferred  by  the  Constitutiim.  As  to  the  third,  no  demonstration  could  be 
more  complete  than  tiiat  afforded  by  his  work,  of  the  fixed  opinion  on  his  part  aa  to 
the  duty  to  uphold  and  perpetuate  the  great  guaranties  of  indiyidual  freedom  as 
declared  by  the  Constitution,  to  the  end  thai  the  freedom  of  all  might  not  pass  away 
foreyer.  Conyinced  aa  he  was  from  his  study  of  the  souross  of  our  constitutlcoal 
Institutions^  that  their  enjoyment  waa  dependent  upon  the  Umitatlona  In  fafor  cd 
Indiyidual  ri^t  whidi  the  Constitution  expressed,  and  that  such  limitations  were 
essential  to  secure  us  from  the  anguish  and  turmoil  and  tyranny  and  the  disappearance 
el  freedom  which  had  always  resulted  where  such  guaranties  did  not  exist  or  were  not 
adhered  to^  he  had  come  to  feel  that  for  the  purpose  of  their  preseryation  he  waa  but  a 
trustee  for  the  millions  who  were  to  come.  His  mind  was  too  penetrating  to  listen  for 
a  moment  to  the  suggestion  that  freedom  would  be  secured  by  destroying  prindplea  which 
were  essential  to  its  preseryation,  or  that  wrong  would  result  unless  truths  which 
wcra  eiemal  were  yiolated.  Thus  controlled,  his  work  on  this  bench  leayes  no  room 
to  doubt  that  no  thought  of  mere  expediency,  no  mere  conyiction  concerning  economic 
problems,  no  belief  that  the  guaranties  were  becoming  obeolete  or  thai  thdr  enforcement 
would  Incur  popular  odium,  eyer  ewayed  his  unalterable  conyiction  and  irreyocaUa 
purpose  to  uphold  and  protect  the  great  guaranties  with  eyery  faculty  which  he  possessed. 
In  considering  such  questions  there  shone  eyer  in  hie  heart  the  light  of  Georgia  fireddea 
and  the  great  duty  he  owed  to  those  firesides,  indeed,  to  eyery  indiyidual,  not  only  in 
Georgia  but  elsewhere^  to  see  to  It  that  by  no  act  of  his  did  the  inherent  prindples  of 
Indiyidual  freedom  guaranteed  by  the  Constitution  fail  to  recdve  enforcement,  or  their 
sIBcacy  become  Impaired  by  misconception  or  misrepresentation. 

0  true  American  and  deyoted  public  seryant,  0  cherished  friend  and  faithful  comrade^ 
0  swesi  and  noble  soul,  may  It  be  yoochaafed  that  the  results  of  your  work  may  endure 
and  fructify  for  the  preseryation  of  the  righta  of  mankind,  and  may  there  be  giyen  to 
«a  who  remain,  wiping  from  our  eyea  the  mists  begotten  by  your  loas,  to  see  thai 
through  the  m^rcj  of  the  inscrutable  proyidenos  of  Qod  you  hnye  been  called  to  lesi 
and  to  your  axceeding  rewardl 

Lit  the  Resolutions  be  recorded. 


ADDSNDUIL 

Report  of  ths  Committee  appointed  by  the  Supreme  Court  of  Ckorgia  to  prepare  m 
Memorial  commcmoratiya  of  the  life  and  character  of  Honorable  Joeeph  Rocker  Lamar, 


APPSMDn. 

«&   Ainodato  Justin  of  the  Supreme  Court  of  the  United  Statci^  mad  fonoer^ 
AiaoeUte  Jmtioe  of  the  Supreme  Court  of  Georgia. 


Joeepb  Rucker  Leamr  wme  bom  at  Rnekerfrille,  in  Elbert  eountj,  Georgia,  en  Oetobtr 
14»  1867,  and  died  in  the  city  of  Waehington,  D.  C^  on  the  2d  day  of  January,  1911 
Bom— died.  Theee  two  eyente  come  in  erery  life,  but  life  is  not  measured  by  the 
intervening  years.  The  final  estimate  cannot  he  made  until  the  dose,  and  then  mnit 
depend  not  upon  years,  but  deeds,  not  upon  how  long  one  lived,  but  how  much  he  lived. 
Measured  by  this  standard,  his  life  was  full  and  rich. 

He  was  a  descendant  of  Thomas  Lamar,  a  Huguenot,  who  settled  in  Maryland  in  1663. 
His  ancestors  moved  to  Georgia  in  1755,  and  have  acted  a  prominent  part  in  the 
public  life  of  the  state  and  country.  He  was  the  son  of  James  8.  Lamar  and  Msry 
Rucker  Lamar.  His  father  was  a  distinguished  minister  of  the  Christian  Church  and 
for  many  years  pastor  of  that  church  in  the  city  of  Augusta.  He  attended  school  at 
the  Martin  Institute  at  Jefferson,  Georgia,  and  the  Richmond  Academy  at  Augusts, 
Georgia,  Penn  Lucy  School  near  Baltimore,  and  matriculated  at  the  University  of 
Georgia  in  1874,  but  before  graduating  there  entered  Bethany  College,  West  Virginia, 
in  which  he  taught  for  one  term  and  from  which  he  was  graduated  in  1877.  He  attended 
the  Law  School  of  Washington  and  Lee  University,  and  was  admitted  to  the  bar  in  Au- 
gusta on  April  16,  1878. 

On  the  30th  of  January,  1879,  he  married  Miss  Clarinda  King  Pendleton,  the  daughter 
of  Dr.  William  K.  Pendleton  and  Catherine  Huntington  King,  a  daughter  of  Judge 
Leicester  King  of  Warren,  Ohio.  Her  father  was  President  of  Bethany  College  until 
his  resignation  in  1885,  and  afterwards  President  Emeritus  until  his  death  ia  1899. 
No  better  fortune  ever  came  to  him  than  this  marriage.  It  was  a  life  of  congenial  com- 
panionship, mutual  admiration,  esteem,  and  love.  Her  fine  literary  tastes  and  her 
liberal  culture  fitted  her  for  the  best  social  and  official  circles.  As  wife  and  mother 
she  filled  the  highest  offices  of  her  sex,  and  was  a  blessing  to  th^  home. 

From  1886  to  1889  he  represented  Richmond  coimty  in  the  Georgia  legislature.  He 
was  the  author  of  the  eminent  domain  act,  the  auditors  act,  and  the  assignment  act 
He  was  appointed  to  fill  the  unexpired  term  of  Justice  Little  on  the  bench  of  the 
supreme  court  of  Georgia,  on  January  13,  1903,  was  elected  to  that  office  in  1904,  and 
resigned  in  1905,  when  he  resumed  the  practice  of  law  at  Augusta.  He  wrote  more 
than  two  hundred  opinions,  embraced  in  six  volumes  of  the  Georgia  Reports.  He  wai 
appointed  by  President  Taft  to  the  Supreme  Court  of  the  United  Statoi  on  December 
12,  1910,  was  confirmed  within  three  days  thereafter,  and  took  the  oath  of  office  on 
January  3,  1911.  His  appointment  was  hailed  with  universal  and  supreme  satisfaction 
and  approval  by  the  bench  and  bar  of  Georgia,  and  his  fellow-citizens  generally. 

He  was  at  once  recognized  by  his  associates  as  eminently  qualified  to  sit  with  them 
in  that  highest  of  judicial  tribunals,*  fulfilled  the  high  expectation  of  the  profession,  and 
vindicated  the  wisdom  of  his  appointments  It  may  be  said  of  him,  as  was  said  of 
another  distinguished  justice  of  that  court,  that  "when  the  ermine  fell  upon  his 
shoulders  it  touched  nothing  less  spotless  than  itself."  As  was  aptly  said  by  Dr. 
Hadley,  President  of  Yale  University,  in  conferring  upon  him  the  degree  of  LLJ)., 
in  1011,  the  honor  oonferred  by  his  selection  for  this  exalted  station  was  emphasized 
by  the  fact  that  the  President  who  appointed  him  is  himself  a  great  jurist  who  had 
more  than  once  been  invited  to  a  seat  in  that  court,  and  who  ignored  party  lines  in  the 
appointment. 

In  the  beginning  of  his  career  in  this  eourt  he  was  called  on  to  pass  upon  the 
Standard  Oil  Case  and  the  Tobacco  Trust  Company  case.  His  opinions  as  a  judge  were 
brief  but  comprehensive,  and  displayed  a  thorough  knowledge  of  the  law  involved, 
expressed  with  clearness  and  force. 

He  was  appointed  by  President  Wilson  as  a  member  of  what  is  known  as  the  A. 
B.  G.  Conferenoe^  growing  out  of  the  situation  with  Mexico.  It  was  a  very  high  honor 
thai  oat  oi  all  tha  jurists,  statesmen,  and  diplomats  of  the  oountry,  ho  should  havo 


one  of  the  two  aelaeied  for  this  pUoo.  Tho  plaot  eallad  for  a  mj  ki|^  eH« 
•I  sbility,  for  tact,  for  wisdom,  for  that  self-eontrol  that  oould  liBton  when  lilenoe  was 
called  for,  and  qieak  when  eomething  must  be  laid  and  rightly  said.  An  exeeee  of  temper 
er  an  inapt  or  ambiguous  ^peeeh  might  have  defeated  the  purpoee  of  the  Oonf erenoe.  Its 
in  detail  has  not  been  made  public,  but  It  maj  be  said  that  it  resulted  In  a 
feeling  between  the  United  States  and  the  countries  of  South  Amerirs,  and  iHiUe 
wa  ennnot  now  fully  see  the  importance  of  what  it  accomplished,  we  must  recognias  It 
ss  a  great  public  stfrice. 

The  high  honors  he  enjoyed  came  to  him  unsought.  Using  a  much-misused  wardt 
end  without  flattery,  which  he  nerer  used  of  others,  and  of  himself  would  not  receiys  with 
favor,  which  is  an  offense  alike  to  good  morals  and  good  taste^  we  call  him  a  great  Jurist^ 
a  great  Judge,  and  a  great  Man. 

His  knowledge  of  law  was  encyclopedic  He  understood  ita  philosophy  and  was 
permeated  by  its  spirit.  He  was  versed  in  its  general  principles  and  familiar  with  the 
technicalities  of  pleading  and  practice.  It  cannot  be  truly  said  of  any  man  that  he 
knows  It  all,  but  It  may  be  said  of  him  that  he  had  unusual  knowledge  of  every  branch 
of  law,  Knglish  and  American,  its  history,  growth,  and  development,  whether  contained 
In  the  common  law,  in  statutes  or  constitutions  or  judicial  decisions.  His  investigations 
were  exhaustive.  As  a  counselor  he  was  wise.  In  argument  he  employed  the  force  of 
the  best  logie  and  the  attraction  of  the  most  lucid  and  felicitous  expression. 

He  had  a  just  ccmception  of  the  dignity  and  importance  of  the  legal  professlooy  ei 
the  qualifications  necessary  to  constitute  one  a  worthy  member,  a  keen  sense  of  the 
dutisB  and  reqx>nsibilities  it  imposed,  and  never  lowered  the  standard  required  by  the 
bluest  Ideala  In  answer  to  an  inquiry  by  President  Tkft,  asking  for  an  (pinion  as 
to  his  qualifications  as  a  lawyer  for  Supreme  Court  Justice^  the  Honorable  Joe^h  B. 
Gumming,  eminently  qualified  by  intimate  acquaintance  and  otherwise,  answered:  "In 
the  symmetry  of  Lamar's  makeup  I  don't  know  which  most  to  commend,  the  man  or  the 
lawyer.  In  the  latter  aspeat,  as  far  as  I  can  judges  his  present  learning  is  vast,  and 
his  facility  for  acquiring  more,  remarkable.  He  digs  de^.  Is  eloeely  logical,  but  at 
the  same  time  intellectually  candid  and  broadminded,  and  with  a  great  gift  f^  clear 
and  forcible  exposition  of  his  viewa  If  I  were  called  on  to  construct  a  model  for  a 
judge,  I  would  take  Lamar  as  he  is,  only  diipping  off  somewhat  of  his  too  painstaking 
search  for  finality  of  truth,  which  sometimes  keeps  him  reaching  out  beyond  the  sea 
mark,  where  other  exodlent  judges  would  be  willing  to  drop  anchor.  This  characteristic^ 
liowever,  increases  the  burden  but  lessens  not  the  excellence  of  his  work." 

How  great  is  the  office  of  the  judge  and  the  honor  of  him  who  worthily  fills  iti  There 
is  nothing  beyond  it.  It  is  the  ne  pku  ultra  of  the  loftiest  ambition.  What  dignity, 
what  majesty,  what  solenmity  invests  it.  It  speaks  with  the  voice  of  supreme  authority. 
It  is  clothed  with  the  power  to  deal  with  property,  with  reputation,  with  liberty.  It 
may  pronounce  the  sentence  which  deprives  of  that  which  God  only  can  give.  To 
pronounce  final  judgment  from  which  there  is  no  appeal  Is  a  divine  prerogative. 

Hie  historic  and  literary  contributions  to  the  profession  may  be  found  in  the  Reports 
of  the  Georgia  Bar  Association  of  1892,  1808,  1900,*  1907,  1008,  1918,  and  embrace  the 
following  subjects:  "Georgia's  Contribution  to  Law  Reform,"  "Georgia  Law  Books," 
"A  Century's  Progress  in  Law,"  "History  of  the  Establishment  of  the  Supreme  Court 
of  Georgia,"  "Memorial  of  Chief  Justice  Logan  B.  Bleckley,"  and  "The  Bench  and  Bar 
of  Georgia  During  the  Eighteenth  Century,"  which  he  began  with  the  query,  "Who 
was  the  first  lawyer  in  Georgia?"  and  with  the  charscteristie  tenacity  of  purpose 
pursued  it  until  he  found  not  only  the  first  lawyer,  but  the  first  judge  and  the  first  Jury. 

His  work  in  the  preparation  of  these  papers  and  addresses.  Involving,  as  it  did,  tho 
careful  examination  of  the  earliest  records  at  home,  including  the  voluminous  Colonial 
and  Revolutionary  records  of  Georgia,  compiled  by  Governor  Candler,  which  he  read 
through  and  upon  which  he  made  marginal  notes,  and  the  obtaining  of  some  firom 
abroad,  is  a  monument  of  his  passionate  devotion  to  the  earliest  history  of  Georgia. 
The  historical  knowledge  furnished  is  of  incalculabla  value  to  the  preeeot  and  future 
generations,  and  tka  Jkonor  due  him  for  iheee  treammee  i»  imereaeed  hg  the  faet  thai  the§ 
••  Ii.  ad.  iSif 


Hmm  pi^Mrt  ni  addrenoi  nbitivf  to  Georgia  Uw  are  emlnentlj  worthj  of  a  flaea 
\m  the  enrrieulum  etf  erery  law  Mhool  in  the  ttatc^  asd  the  etate  library  and  woaU 
JQtMf  the  neoeaaaiy  eipeoditure  lor  that  purpoee. 

Hk  addreM  before  the  Alabama  State  Bar  Aaaodatloa  on  July  4, 1910^  waa  a  ^plendii 
tribote  to  the  '^orfc  aad  Poaitioii  of  Amfrrican  Ooorta."  b  thla  addreii  he  tolofi 
ym,  what  H  would  be  weU  to  reeaU  In  thU  day  iriien  It  baa  been  aaaalled,  that  the 
poww  to  paee  upon  the  Talidity  of  lawe  waa  iuTolyed  If  not  expreoify  eonf^rred  bj 
the  profiaion  of  Magna  Oharta,  *that  if  anything  be  procured  by  any  pereon  eontrary 
to  the  premlae^  the  eame  ihall  be  null  and  ▼old.*'  Splendid^  rerlewing  the  work  of 
American  courts  he  waa  inspired  by  the  feeling  ''that  we  are  a  part  of  a  gieat  lya- 
tm  whUA  la  diaeeminating  Ita  benign  Influence  to  the  lalee  of  the  aea  and  the 
uttermoet  parte  of  the  earth;**  and  looking  down  the  Tiata  of  the  future  he  waa 
thrilled  by  a  Tiaion  of  the  day  when  our  courta  ihould  take  part  in  a  caae  and 
announce  aome  Tital  principle  that  would  be  cited  and  followed  around  the  c^ba. 

One  of  hia  greateet  addreseee  waa  before  the  Ladiee*  Memorial  Aaeodatlon  etf 
Athene,  Qeorgia,  on  April  26,  1002,  on  The  Priyate  Soldier  of  the  Oonfederacy.**  In 
all  that  haa  been  qK)ken  and  written  there  cannot  be  found  a  more  iplendld  tribute. 
He  apeaka  of  'The  War  without  adjcctlTe,  without  word  of  explanation.''  He  graphlealfy 
portraya  the  South'a  unpreparedneea  for  war;  reealle  that  the  combined  loeeee  of  the 
Kngli^,  Pruisian,  and  French  armies  at  Waterloo  did  not  exceed  the  loeeee  at  Qettys- 
burg;  that  the  casualtiea  at  Sadowa  fought  between  the  Austriana  and  Fmsslans^  where 
a  quarter  of  a  million  men  were  engaged  on  each  side,  each  army  greater  than  the  eom- 
bined  forcea  of  the  Federals  and  Confederates  at  Qet^rsburg,  were  mudi  leas^  aa  th^ 
were  also  at  Sedan.  He  detracta  nothing  from  the  honor  due  thoee  who  eommanded, 
but  he  giyea  hif^est  honor  to  the  courage  and  endurance  of  the  priyate  eoldier,  whom  he 
calls  the  hero  of  the  Confederacy.  It  waa  a  statesmanlike  discussion  of  the  eauaea  that 
led  to  the  war,  and  a  patriotic  warning  against  the  dangera  which  It  left  Ia  Ita  path. 
It  waa  loyal  to  Southern  sentiment  and  pride,  but  without  a  note  of  sectioual  animooity. 
The  greatness  of  this  address  can  be  better  appreciated  by  recalling  that  Ha  author, 
who  with  auflh  fandliarity  and  philoeophy  discussee  the  causee,  the  progreas,  the 
achieyements^  and  the  reeults^  with  the  knowledge  of  an  intelligent  participant,  waa 
not  bom  when  theee  causes  began,  and  waa  only  fiye  years  old  when  they  cnlm<nated  In 
that  atruggle,  which  he  calla  the  oyerahadowlng  eyent  in  our  history* 

It  waa  heard  by  a  number  of  distinguished  men  from  eyery  section  of  the  country, 
members  of  an  educational  conyention  in  seaoion  at  the  time^  and  the  editor  ol  the 
"Brooklyn  Eagle*'  asked  for  the  priyil^ge  of  publishing  it  for  general  distrlbutioa. 
This  waa  done,  with  an  introduction  by  Dr.  Shaw,  editor  of  the  "Beylew  of  Royiewa.* 

He  waa  one  of  the  three  citizens,  learned  in  the  law,  selected  by  the  goyemor, 
the  diief  Juatice  and  aasociate  Juaticea  of  the  supreme  court  of  the  states  to  prepare 
the  Code  of  1806,  and  if  he  had  done  nothing  else,  this  alone  would  stand  aa  a  per- 
petual monument  commemorating  dtaiinent  public  seryice. 

His  learning  waa  far  beyond  the  domain  of  the  law.  It  embraced  the  dasale^  the 
historic^  the  scientiflc.  He  waa  a  scholar  without  pedantry,  a  geniua  without  eceen* 
trkity.  Hia  makeup  was  such  a  combination  of  strength  and  simplicity,  oi  OMrlt  and 
modesty,  of  public  and  priyate  yirtue,  of  intellectual  ability  and  noUlity  of  eharaeter, 
aa  made  him  a  great  man. 

He  Uyed  the  best  of  aU  Uyee,  a  life  of  senrice,— the  seryice  that  haa  that  dlyfaM 
attribute  etf  forgetfulnees  of  self  and  thought  of  othera. 

He  waa  an  humble,  consistent  Christian.  His  knowledge  of  the  Scriptures  waa  yaat  and 
accurate^  and  for  many  years  waa  empl<^yed  In  teaching  a  Bible  elasa  In  tho  diureh 
oi  which  ho  waa  a  loyal  member.  He  was  not  driyen  about  by  strange  and  diyers 
doolrlnee,  but  stood  steadfastly  by  the  old  landmarks. 

He  Uyed  aroeh  beoauae  he  loyed  much.  He  loyed  the  beautiful  In  natnre  and  artt 
ha  loyed  Mrda  and  trees  and  flowera;  he  loyed  hia  fdlowa. 


'n?, 


rito  ■•  M  «M  wk9  Vofwm  hit   lallow- 

"The  tiifal  wroU  Mid  TanWiil.    TIm  Bist  idA% 

It  CUM  t|^  with  a  grmi  wdnniafUi^tb 
And  ahodPed  the  aaniM  iHiom  1ot«  of  Qod  had  bkili 
Aad.  lol  Ben  Adbcm't  bmm  led  tU  the  — ^^ 


Hi  l9f«d  hit  fkiendi.  His  •kfaUoa  to  tha  hi|^iMt  station  ntfw  ^oOtd  Urn.  Iti 
aKItiido  never  chilled  the  wurmth  end  glow  of  his  friendships^  nor  oooled  the  eordinlltj 
ef  his  auuiner  to  the  hnmWest  scqnfclitnnes. 

He  lofed  his  natiTS  states  hsr  history^  her  trtditioas^  her  people.  In  the  warp  and 
woof  of  his  being  he  was  a  Oeoigiaa.  His  legal  domieil  maj  havo  been  hi  Wadilagtom 
dtj,  bat  in  qpirit  he  had  nerer  remored  from  Georgia  and  Angnsta.  He  loved  hia 
eonntry,  her  ajstsm  of  goTemnmt^  her  eontributions  to  human  liberty  and  to  the 
progress  sai  ehrilimtioB  of  ths  world.    He  was  throng  and  throni^  an  Ameriesn. 

Ponnsal  to  his  srprssssd  desirs^  he  was  laid  to  rest  with  siaqple  fmieral  eersmon j« 
attended  bj  the  presnee  of  Ifr.  Jnstiee  Pitney^  llr.  Justice  Van  Devanter  and  ICr. 
Jnstiee  lisBiynold%  and  the  Marshal  of  the  flapreme  Court  of  the  United  States^ 
wpr^bentatiTes  from  the  local  and  State  Bar  Associations,  and  a  eoncoorse  of  friends 
and  feUow*eitiaens  whose  admiration  and  esteem  he  had  so  richly  merited  and  enjoyed. 

ffis  body  Use  bnried  in  ths  city  ho  loved  with  such  passionate  devotion,  and  to 
whoBS  interests— social,  educational,  religions,  and  oommercial — ^he  had  generoosly  eon- 
tribated  with  heart  end  mind  and  purse,  bat  he  livee  and  will  live.  The  higheet  tribute 
we  can  offer  is  worth  more  to  us  than  to  him.  He  needs  it  not  He  has  written  his 
own  eulogy,  more  eloquent  than  sny  words  of  oars  can  pronounce.  He  has  builded  his 
own  Bumument  in  strength  end  symmetry  more  enduring  than  marble  or  granite^  and 
SKMO  beaotifal  than  was  onr  oonoeived  by  tlie  n^nd  of  genius,  or  diiseled  by  the 
deft  hand  of  sculptor. 

He  may  not  hear  what  we  say  of  him.  Lst  ps  listen  to  what  he  ssys  to  us.  He  ^eaks 
in  a  voice  eolemn  with  the  emphasis  of  another  world.  It  ssys  to  his  family  in  the 
flret  item  of  his  last  will  and  testamentt  '^y  fkiendships^  many  and  precious,  I 
leave  to  my  family  in  the  hope  that  they  will  be  dierished  and  continued.  I  know 
of  no  enmities,  but  If  such  hereafter  unhi^pily  arisen  let  them  be  forgotten.* 

It  says  to  his  friends^  ''Ssy  not  goodnight^  but  in  some  brighter  elime  bid  me 
good  morning.* 

It  says  to  u%  Honor  and  dignify  your  profession.  Cherish  the  memory  end  imitate 
the  esample  oi  the  great  and  good  men  who  have  gone  before  you.  Love  truth;  love 
Justloe;  uphold  eonstltatsd  authority.  Rmnember  you  are  sworn  olBcers  of  the  law, 
and  it  shmild  be  your  supreme  pleasure,  as  it  is  your  sacred  duty,  to  oppoes  wrong, 
to  defend  the  rfi^t,  and  to  terminate  eontentions.  Do  not  forget  that  yoa  are  annointed 
priests  of  service  in  a  temple  whoee  alters  should  be  kept  undeJiled,  and  whoee 
ministers  shoold  be  dean. 

Let  us  answer  this  voices  thou|^  oor  wofds  are  a  poor  eipisislon  of  iHiat  our 
hearts  feelt  Great  Jurist,  great  Judge,  great  man,  thou  hast  done  welL  Thou  hast  shed 
hmtre  190a  thy  state  end  eoantry.  Thon  hast  bsen  a  worthy  exemplar  dt  faithful, 
intelligent  eervioe  in  the  highest  stations^  and  adorned  every  private  relation  in  life, 
and  into  thie  Ugh  tribunal,  enridied  and  adorned  by  thy  ehsracter  end  ssrvices,  this 
hi|^  tribunal,  the  last  and  sorest  defender  of  the  right  to  Ufe^  liberty  and  property, 
we  come  moimiing  thy  death,  but  rejoidng  In  thy  life,  and  crown  thee  with  our  un- 
^^jlng  gratitude,  admiration  and  esteen. 

J.  C.  C.  Bluk,  Horace  IL  Hddcn,  Spencer  R.  Atkinson,  J.  R.  Pottle,  Wm.  A.  Little, 
Joel  Bianham,'  Andrew  J.  Cobb,  E.  H.  Callaway,  John  B,  Candler,  A.  B.  lawtcib 
Samuel  B.  Adams^  AIsk  a  King,  A.  U  Millsr,  a  H.  Sibl^,  P.  W.  MsUrim,  Sam 
Bennett,  Heuy  S.  Qoetchisa 
•P  li.  •«.  &!»• 


APPENDIX  ni 


S^vipvtmt  (X^onrt  of  the  WxiUA  J^tates. 


IMiw 


OBDER. 


It  if  ordmd  hj  <h«  murft  tihai  tkt  bond  praMotad  Iqt  tk«  atfdial  lUi  4i^  It 
approred  and  raoordad. 


APPENDIX  IV. 


jfnpvtmt  (X^onrt  of  tite  WuiM  J^tateSa 


19111 


ORDER 

Tka  Raportv  karfaf  rapraaaatad  tihai  oariag  to  tlia  mmAar  ai  dadaJeaa  «l  Ika 
praaant  tarm  it  would  ba  impraoUeabla  to  put  tha  raporta  in  ona  yoluma,  it  is  tharafora 
BOW  hara  ordarad  thmt  ha  pnUiah  an  additioiial  Toluma  in  thia  yaar  paraaaBl  la 
1 196  of  tha  Jvdidal  Ctoda^  appiotad  Marah  Z^  19U. 

JTofv*  M.  i$l§. 
IIM  141  U.  S. 


JVPPENDIX    V. 


S^nvfvtmt  C0urt  ni  tht  fSLnittA  jitfttes. 


Ounnii  Ttex,  1911. 


ORDER. 


£^  it  ordered  hj  ibM  eourt  that  teetioiis  2  and  0  of  rule  10  of  lliia  ao«irt  h%,  aad  Am 
■ame  are  herebj,  amended  io  at  to  read  at  followt; 

t,  Immediatelj  after  the  detignation  of  the  parte  of  the  record  to  be  printed  or  the 
expiration  of  the  time  allotted  therefor,  the  clerk  ihall  make  an  ettimate  of  the  eott 
of  printing  the  record,  hit  fee  for  preparing  it  for  the  printer  and  tapenriting  fee^  and 
other  probable  feet^  and  upon  application  therefor  thall  fumith  the  tame  to  the  party 
docketing  the  oate.  If  tueh  ettimated  tum  be  not  paid  within  ninety  dajt  tfter  the 
cause  it  docketed,  it  thall  be  the  duty  ol  the  clerk  to  report  that  fact  to  the  court, 
and  thereupon  tiie  caute  will  be  ditmitted,  unlett  good  caute  to  the  contrary  it  thowa. 

9.  When  the  record  it  filed,  or  within  twenty  dayt  thereafter,  tiie  plaintUT  la  error 
or  appellant  may  file  with  the  clerk  a  ttatement  of  the  pointt  on  which  he  intendt  to 
rely  and  of  the  partt  of  the  record  which  he  thinkt  necettary  for  the  oonaldtratioB 
thereof,  with  proof  of  tenrice  of  the  tame  on  the  adverae  party.  The  adrerte  party, 
within  thirty  dayt  thereafter,  may  detignate  in  writing,  filed  with  the  cleric,  additiimal 
partt  ol  the  record  whidi  he  thinkt  material;  and,  if  he  thall  not  do  to,  he  thall  be 
held  to  have  eontented  to  a  hetrlng  on  the  partt  detignated  by  the  plaiatiff  la  error 
or  appellant.  If  partt  of  the  record  thall  be  to  detignated  by  one  or  both  of  the 
partiet,  the  clerk  thall  print  thote  partt  only;  aad  the  oourt  will  oonilder  nothiig 
but  thote  partt  ol  the  record  and  the  pointt  to  ttated.  If  at  the  hearing  it  thall  appear 
that  any  material  part  of  the  record  hat  not  been  printed,  the  writ  of  error  or  appeal 
Biay  be  ditmitted  or  tueh  other  order  made  at  the  eiroumttaneet  may  appear  to  the 
eourt  to  require.  If  the  defendant  in  error  or  appellee  thall  ha^e  canted  unneettaaiy 
partt  of  the  record  to  be  printed^  imh  order  at  to  eotli  iHiy  be  made  at  the  eonrt 
thall  think  proper* 

Hie  feet  of  the  elerk  nader  rule  £4,  teottoa  7, 'riian  be  eompvted,  at  al  pretnti 
m  the  foliot  ia  the  reeord  at  filed,  aad  ihaU  be  ia  foU  for  the  perfonaaaae  of  hit 
dotiet  in  the  eseeutioa  hereof. 

Thete  amendmentt  thall  go  into  effect  May  1,  191I. 
(/Vetmlftlad  Mmnk  90,  1916.) 
00  Ii.  •«.  MOl 


APPENDIX  VL 


Sin^tmt  Cimrt  of  the  Wxittd  JItates* 


TUC«  191ii 


ORDER. 

Ikt  ddif  Jnstiw  mlUkt  ^'OmttUimmk  of  the  bar,  ft  ii  aij  priTikge  to  oimoimeo  ftot  tti 
PMddMt  of  tlio  Unltai  StatM  hM  fUkd  tho  ▼aoaiMj  on  this  b«Mh  kj  tho  oppolBlmBl 
«l  Mr.  Louis  D.  Braadeity  ol  liaaaaohutettt.  Mr.  Braiidoio  is  prmat  snd  rssdj  to 
tsks  ths  osth  of  oOes.    Ths  elvk  will  rood  his  oommiision.'* 

Ths  MHUiissioB  wss  then  r«sd«  snd  ths  osth  sdMinistsred  bj  ths  elsric,  snd  Mr. 
Jvstiss  Brsndsis  took  his  ssst  upon  ths  bsnsh. 
§9  191$. 


APPENDIX  VIL 


S^npxttat  dDottrt  at  tht  WxiUA  JItateSt 


ORDER 


It  Is  sffdsffsd  tei  mk  S7  bs  smcndsd  bj  sdding  Ihs  following  ssstlont 

4.  Li  svj  ssss  whsrs  ths  tisM  fat  frumfUig  a  pstition  for  svtionuri  Is  uLyimdj 

Ifmitsd  bj  ststiits  sad  iHmts  ths  sonrt  hss  sdjonnsd  lor  ths  tsm,  ths  pstition  msj  bt 

darinf  sash  tAimanmmA  snd  within  ths  psriod  prsserlbsd,  bj  flUig  lt|  to- 

with  ths  printsd  rsoerd  snd  brisfli^  in  ths  oflfes  of  ths  e]srk»  sad  sash  iliac 

riiall  h«fs  ths  ssais  sffsot  ss  s  presitstioa  in  <qp«n  ooort 

/mm  IK  1916. 
ItOt  Ml  V.  •. 


\ 


APPENDIX  Vili. 


mm^ 


Sinpxtmt  Cimrt  of  tlue  Wnited  JItxteit 


Tmoi,  m§. 


ORDER. 


IWfit  te?i*f  V9m  Ml  Aaodate  JvstlM  of  tliit  ao«irt  i^poiated  rfaet  tite 

MtDt  M  thk  tflrm. 
It  li  Mrdored  thai  the  f olkmiag  ftUotMBl  Im  mad*  of  tiM  Ohkf  JvstlM  aad 

Jmiiien  of  this  oourt  among  Ilia  eirenita  agreaablj  to  tlia  aat  of  Cnngraw  fai 
aad  fivfidady  aad  that  anah  aHotaiat  ba  cnterad  of  raeard^  Tiat 
fbr  tha  Fint  Cbnait,  Ollfw  W«daD  HoIm%  Aamlata  JiiMm. 
Vor  tha  Saaoiid  CSreiiit^  Loida  D.  BiaadaK  Aa^wiata  Jnattaiw 
Bbr  tha  Third  Girenit^  ICahlon  Pitatj,  AModato  Jaatiaa. 
Vor  tha  Voinrth  Gireatti  Xdwafd  D.  Whiti^  Chiaf  Jnattaiw 
9^  tha  mik  Oirentlb  Edward  D.  Whiti^  Ghiaf  Jnallaii 
lor  tha  SbcCh  Olreiiit^  WUllaa  R.  Dajr,  AaMolata  Jvaftiea. 
Itr  tha  Bafwth  Cireiiit»  Jamoa  0.  MoRajmolda.  Aiaodata  Jnatte 
9^  tha  Sii^th  Cirenit,  Willie  Van  Daraatflr,  Aaoodata  JiMtkiw 
Wm  tha  Ninth  Circaitb  JoMph  Mf.Kanna,  Ifaoaiata  JaaUai^ 
Jmm  n.  1916. 


APPENDIX  IX 


jkuTfttWit  <K0nrt  sd  tht  Wmttd  jitatesa 


ins. 


ORDER. 

H  li  BOW  hara  aitead  Ij  tta  aovt  «iaft  aO  tha  caaea  on  the  dookat  aal  iirfiij 
an  tha  other  huainMB  of  tha  tana  aoi  diapoatd  af  b%  and  tha  mam  aia  haraly,  aoatiauii 
ta  tha  aart  tn. 

Jfmml%WlL 


4\ 
ii 


n